Court of Session’s use of its nobile officium to make acts of sederunt which repealed or dispensed with statutes, or imposed taxes.30 Yet if some pamphleteers found this power dubious, particularly when it was seen to usurp the role of legislation, most legal writers regarded it as a necessary means to allow new remedies to emerge to
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deal with imperfections in the common law, in areas which attracted little legislative attention.31
Kames explained his own understanding of the nobile officium in the Historical Law-Tracts. He associated it with a power to redress wrongs of all kinds. It worked in a way to uncover principles for unsettled subjects on which men were apt to disagree and judge by sentiment. As he put it,
Matters of law are ripened in the best manner, by warmth of debate at the bar, and coolness of judgment on the bench; and after many successful experiments of a bold interposition for the publick good, the court of session will clearly perceive the utility, of extending their jurisdiction to every sort of wrong, where the persons injured have no other means of obtaining redress.32
This meant that “all extraordinary actions, not founded on common law, but invented to redress any defect or wrong in the common law, are appropriated to the court of session,” exercising a jurisdiction denied to inferior courts.33
Kames himself explored this power of equity in his reports. For instance, in his report of the case of Charles M‘Kinnon contra Sir James M‘Donald in his Select Decisions of the Court of Session from the Year 1752 to the Year 1758, he commented on how a new rule regarding which heir could take charge of a deceased person’s estate had emerged “in the famous case of Sir George M‘Kenzie’s entail.” The new rule developed by the judges, he commented, “was a new exertion of the nobile officium in order to remedy many hardships, and even injustice that must arise in this case, from the aforesaid rule of succession established at common law.” Kames proceeded to explain to readers the reason for the rule, and to make a commentary on what he felt were the consequences of the rule.34 In his
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Elucidations Respecting the Common and Statute Law of Scotland, he also set out proposals on how the Court of Session could use its nobile officium to provide new remedies.35
Kames also discussed the nature of the nobile officium of the Court of Session in a letter he wrote in 1764 to Robert Dundas of Arniston, Lord President of the Court of Session, proposing an act of sederunt which would reform an aspect of Scottish bankruptcy law.36 In an accompanying document on the jurisdiction of the court, Kames sought to persuade his colleague that the court did have this power, giving numerous examples of the court’s use of its equitable powers, and arguing that the court must be taken to have inherited the powers of the Scottish Privy Council to redress injuries, after its abolition at the union.37
In the Principles of Equity, Kames did not discuss the nobile officium of the Court of Session as such, for in this book he was interested in exploring a wider concept of equity which would speak to English as well as Scots lawyers. Here he argued that equity intervened both when the settled rules of the common law acted in an unjust way and when they failed to fulfill the needs of justice. This occurred as societies progressed and the moral sense began to recognize connections between people which turned benevolence into a duty. Equity’s intervention was not boundless, however: it was limited to those connections which related to interests in property. Equity could not concern itself with connections arising from personal circumstances, for it was only the former which could be made into a rule. The book was therefore primarily about property and civil obligations. In the body of the work, he accordingly spent much time exploring what constituted an unjustified enrichment—discussing the Roman law maxim Nemo debet locupletari aliena jactura38—and what principles lay behind the respective claims of different creditors on an indebted estate.
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A further feature of equity identified by Kames was that it looked more closely at the intentions and motivations of parties, so that it could root out injustices to which the common law was blind. For instance, when dealing with contracts and deeds, the common law simply looked to the text, whereas equity could look at the real intentions of the parties. Hence, much of the book was concerned with showing how the court should interpret contracts, and at how it treated vitiating factors such as pre-contractual pressure or undue influence. Just as equity could go farther than common law with deeds, so it could intervene in other civil wrongs. For example, where the common law only looked at whether a man had exercised his rights, a court of equity could look at his intentions and intervene against a man who had exercised a right with the sole motive of harming another. Equity also intervened, he added, to prevent the common law acting in an unjust way, as where the wording of statutes went beyond their intended purpose and led to injustice in particular cases.
Much of the Principles of Equity was devoted to discussing how equity worked to secure justice when the common law failed to do so. But Kames added that a court of equity also intervened on the grounds of utility, by preventing acts which were not in themselves unjust, but which were mischievous and against the public interest. For the most part, the principle of justice (which looked only to the individual litigants) and the principle of utility (which looked to the interests of society) worked in harmony. But he noted that they might come into opposition. In such cases “[e]quity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society.”39 For example, the regulations which were designed to abridge lawsuits meant that the courts would refuse to listen to a claim which an individual might have in justice—as where he had accepted an unequal settlement of a lawsuit in error—simply because to do otherwise would be to encourage endless litigation. At first glance, it may be thought that Kames’s stress on utility sat uneasily with his theory of justice, as derived from the moral sense. Yet the two were not in his view incompatible. For Kames’s argument suggested that utility itself dictated the limits of equity. One might, he noted, be
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able to do justice in individual cases, but without being able to formulate this into a rule. To allow judges nevertheless to give a remedy in such cases created the risk of making them arbitrary and often unjust, which would be harmful to society.40 There were hence limits to equity’s intervention to enforce just claims, though he added that it should never enforce unjust claims. The principle of utility confirmed that duties of justice had to be capable of being formulated as rules.
In the Introduction to the Principles, Kames added his views that it was better to have a single court with the power to administer both common law and equity (as in Scotland) and that the court of equity itself should follow rules. These were topics on which he had corresponded with the former Lord Chancellor of England, Lord Hardwicke, shortly before the publication of the first edition. Hardwicke disagreed on the first of these points, feeling that a union of the judicatures might allow a judge to alter the settled rules of property law at his discretion. Such an arbitrary power exercised in matters of property might then extend to matters of life and liberty. On the second point, Hardwicke admitted that there should be general rules which guided the court (such as those which related to trusts), yet he felt that the judge should not be absolutely and invariably bound by them. In his view, equity had grown in response to the luxuriant growth of fraud, and since fraud was infinite, the Lord Chancellor’s powers had to be flexible.41
If Lord Hardwicke was sceptical about some of Kames’s views, the Chief Justice of the King’s Bench, Lord Mansfield, was enthusiastic. After the publication of the first edition of the work, he wrote to Kames,
I read ev’ry thing yr L[ordshi]p writes with great Satisfaction. The best of our Judges are delighted with some of yr Law Pieces. You have taught Men to trace Law to its true noble Sources: Philosophy & History. Your Principles of Equity are very ingenious; but the Opposition of Equity to Law as now administered in England by different Courts, is not to be learnt from anything yet in Print & is not deducible from Reason. It can