far as it consists of absolute rules for the direction of decisions between man and man, might almost be done away.

8. Now, in considering the degree in which this great desideratum-the substitution of justice for law-can be effected, let us be especially careful that we throw no other impediments in the way of justice than those which are interposed by the want of purity in mankind. Let us never regard a system of administering justice as fixed, so that its maxims shall not be altered whenever an

increase of purity dictates that an alteration may be made. All the existing national systems of administering justice are imperfect and alloyed:-a mixture of evil and good. It were sorrowful indeed to assume that they cannot be, or to provide that they shall not be, amended.

9. The system in this country, like most systems which are the gradual accretion of the lapse of ages, is incongruous in its different parts. In the decisions that are founded upon legal technicalities, the method of applying absolute uniform law is adopted. In the assessment of damages there is exercised very great discretionary power. In pronouncing verdicts upon prisoners, juries are scarcely allowed any discretion at all. They say absolutely either not guilty or guilty. Then again, discretion is entrusted to the judge, and he may pronounce sentences of imprisonment or of transportation, varying according to his judgment in their duration or circumstances. The reader should well observe this admission of discretionary power to the judicial court, because it is a practical acknowledgment that considerations of equity are indispensable to the administration of justice, whatever may be the multiplicity or precision of the laws. Our judges are entrusted, on the circuits, with the discretionary power of commuting capital punishments or leaving the offender for execution. This is equivalent to an acknowledgment, that even the most tremendous sanctions of the state are more safely applied upon principles of equity than upon principles of law. Let the reader bear this in his mind.

10. Of the general tendency and attendant evils of uniform law, some illustrations have been offered in the preceding Essay, and some observations have been offered in the chapter on Arbitration, on the advantages of administering justice upon principles of equity, that is, by a large discretionary power. Now it will be our business to inquire into some of the reasonings by which the application of uniform law is recommended-to illustrate yet further the moral claims of Courts of Equity, and to show if we can that some

greater approximation to the adoption of these courts is practicable even in the present condition of mankind.

11. The administration of justice, according to a previously made rule, labours under this fundamental objection, that it assumes a knowledge in the maker of the rule which he does not possess. It assumes that he can tell beforehand, not only what is a good decision in a certain class of questions, but what is the best; and the objection appears so much the more palpable, because it assumes that a party who judges a case before it exists, can better tell what is justly due to an offended or an offending person, than those who hear all the particulars of the individual case. This objection, which it is evident can never be got over, is practically felt and acknowledged. Every relaxation of a strict adherence to the law, every concession of discretionary power to juries or to courts, is an acknowledgment of the inherent inadequacy and impropriety of fixed rules. You perceive that no fixed rules can define and discriminate justly for specific cases. Multiply them as you may, the gradations in the demands for equitable decision will multiply yet faster; so that you are forced at last to concede something to equity, though perhaps there has not hitherto been conceded enough. Our Court of Chancery was originally, and still is called, a Court of Equity, the erection of which court is paying a sort of tacit homage to equity as superior to law, and making a sort of tacit acknowledgment how imperfect and inefficient the fundamental principles of fixed law are. It is perhaps a subject of regret that this court is now a court of equity rather in name than in fact. It proceeds, in a great degree, according to the rule of precedent; one of the principal differences between its practical character and that of legal courts being, that in one a jury decides questions, and in the other a judge.

12. And after all the fixedness of the law is much less in practice than in theory. We all know how various and contradictory are the "opinions" of legal men, so that a person may present his "case" to three or four able lawyers in succession, and receive from each a different answer. Nay, if several should agree when they are applied to as judges in the case, it is found, when a person comes into court, that counsel can find legal arguments, and unanswerable arguments too, on both sides of the question, till at last the question is decided, not by a fixed law, but by a preponderance of weight of conflicting precedents. Indeed the unfixedness of the law is practically so great, that common fame has made it a proverb.

13. Another inconvenience which is in

separable from the use of fixed rules is, that they almost preclude a court from attending sufficiently to one very important point in the administration of justice, the intention of offending parties. Law says, if a man steals another person's watch under such and such circumstances, he shall receive such and such a punishment. Yet the guilt of two men who steal watches under the same visible circumstances, is often totally disproportionate; and this disproportion indicates the propriety of corresponding gradations of penalty. Yet fixed law awards the same penalty to both. If it is said that a court may take intention and motives into the account in its sentence, so it may; but in whatever degree it does this, in the same degree it acknowledges the incompetency and inaptitude of fixed laws.

14. "The motives and intentions of the parties." When we consider that the personal guilt of a man depends more upon these than upon his simple acts, and consequently that these rather than his acts indicate his deserts, it appears desirable that human tribunals should measure their punishments as much by a reference to actual deserts as is consistent with the public good. I would not undertake to affirm that the guilt of the offender is to us the ultimate standard of just punishment, because it may be necessary to the prevention of crimes, that of two offences equal in guilt, one should be punished more severely than another, on account of the greater facilities for its commission-that is, on account of the greater impracticability of guarding against the offence, or of detecting the offender after it is committed. But, in speaking of the propriety of adverting to intention, this is not the point in view. I speak not of the difference between two classes of crimes, but of the actual motives, inducements, and temptations of the individual offender. Stealing five pounds' worth of property in sheep, although it may be no more vicious, as an act, than stealing a fivepound note from the person, may perhaps be rightly visited with a severer punishment. This is one thing. But two men may each steal a sheep with very different degrees of personal guilt. This is another. And this is the point of which we speak. A man who is able to maintain himself in respectability, but will not apply himself to an honest occupation-who lives by artifices, or frauds, or thefts, or gambling, or contracting debts, watches night after night an opportunity to carry off sheep from an enclosure. He succeeds, and spends the value in drunkenness, or at a bagnio. A man of decent character who, in a period of distress, endeavours in vain to procure employment or bread-who pawns, day after day, his furniture, his

clothing, his bed, to obtain food for his children and his wife—who finds at last that all is gone, and that hunger continues its demands-passes a sheep field. The thought of robbing starts suddenly before him, and he as suddenly executes it. He carries home the meat, and is found by the police hastily cutting slices for his voracious family. Ought these two men to receive the same punishment? It is impossible. Justice, common sense, Christianity forbid it. We cannot urge, in such cases, that human tribunals, being unable to penetrate the secret motives of action, must leave it to the Supreme Being to apportion punishment strictly to guilt. We can discover, though not the exact amount of guilt, a great deal of difference between its degrees. We do actually know, that of two persons who commit the same crime, one is often much more criminal than another; and were it not that our jurisprudence habituates us so much to refer simply to acts, we might know much more than we do. We are often ignorant of motives only because we do not inquire for them. A law says, "If any person shall enter a field and steal a sheep or horse, he shall suffer death;" and so, when a court comes to try a man charged with the act, they perhaps scarcely think of any other consideration than whether he stole the animal or not. Of ten who do thus steal, no two probably deserve exactly the same punishment, and some, undoubtedly, deserve much less than others.

15. Discrimination, then, is necessary to the demands alike of humanity, and reason, and religion. But how shall sufficient discrimination be exercised under a system of fixed laws? If the decisions of courts must be regulated by the acts of the offender, how shall they take into account those endless gradations of personal desert, to refer to which is a sine qua non of the administration of justice? Now, in order to satisfy these demands, courts must by some means be entrusted with a greater discretionary power; or, which is the same thing, decisions upon maxims of equity must, in a greater degree, take the place of decisions regulated by law.

16. The next great objection is, that to place, for example, men's property at the discretion of a court of equity that was not bound down by fixed rules, would make the possession of every man's property uncertain. Nobody would know whether the estate which he and his fathers enjoyed, might not to-morrow, by the decision of some court of equity, be taken away. But this supposes that the decisions of these courts would be arbitrary and capricious; whereas, the supposition upon which we set out-the

supposition upon which alone we reason, is, that means can be devised by which their decisions shall be generally at least accordant with rectitude. They must deviate very widely from rectitude if they took away a man's estate without some reason which appeared to them to be good; and it could hardly appear to be good, on a full hearing of the case, unless the merits of that case were very questionable; but in proportion to that questionableness would be the smallness of the grievance if the estate were taken away. Let any man suppose a case for himself-he possesses a house, to which no one ever disputed his title, till some person chooses to bring his title before a court of equity-of the members of which court the possessor nominates one half; does any man in his senses suppose that the property would be endangered? or rather, does any man suppose that a person would be foolish enough to call the title in question? But we must repeat the other alternative. If a person holds an estate by a decision of law which he would not have held by a decision of rectitude, we do not listen to his complaints though it be taken away. It is just what we desire.

17. It has been contended, that to depart further from the system of deciding by law, would tend to the increase of litigation; that nothing prevents litigation so much as previous certainty of the rule of decision; and that if, instead of this certainty, the decision of a court were left to a species of chance, there would be litigation without end. But in this argument it is not sufficiently considered that previous certainty of the rule of decision is very imperfectly possessedthat, as we have just been observing, the law is not fixed; and, consequently, that that discouragement of litigation which would arise out of previously known rules, very imperfectly operates. Nor, again, is it enough considered, that the decision of a court of equity, if properly constituted, would not be a matter of chance, nor anything that is like it. Though a legal rule would not bind a court, still it would be boundbound by the dictates-commonly the very intelligible dictates—of right and wrong. Reason," it has been said, "is a thousand times more explicit and intelligible than law; " and if reason were not more intelligible, still the moral judgments in the mind assuredly are. Again, many causes are now brought into court, not because they are morally good, but legally good. Of this the contending parties are often conscious, and they would therefore be conscious that a court which regulated its decisions by the moral qualities of a case, would decide against them. At present, when a man contemplates a lawsuit, he has to judge as

well as he can of the probability of success, by inquiring into the rules of law and decisions of former cases. If a court of equity were to be the judge, he would have to appeal to a much nearer and more determinate ground of probability-to his own consciousness of the justness of his cause. We are therefore to set the discouragement of litigation, which arises from this source, against that which arises from the supposed fixedness of law; and I am disposed to conclude, that in a well constituted court this discouragement would be practically the greater. Another point is this:-it is unhappily certain, that either the ignorance or the cupidity of some legal men prompts many to engage in lawsuits who have little even of legal reason to hope for success. This cause of litigation equity would do away; a lawyer would not be applied to, for a lawyer would have no better means of foreseeing the probable decision of a court of equity than another man.

18. Here, too, it is to be remembered that the great, what if I say the crying evils of the present state of legal practice, result fromthe employment of fixed laws. It has indeed been acknowledged by an advocate of these laws, that they "erect the practice of the law into a separate profession."1 Now, suppose all the evils, all the expenses, all the disposition to litigation and dispute, all the practical injustice, which results from this profession were done away-would not the benefit be very great? Would it not be a great advantage to the quiet, and the pockets, and the virtue of the nation? I regard this one circumstance as forming a recommendation of equity so powerful, that serious counterbalancing evils must be urged to overcome its weight. Even to the political economist the dissolution or great diminution of the profession is of some importance. I am no proficient in his science: but it requires little proficiency to discover, that the existence of a large number of persons who not only contribute little to the national prosperity, but often deduct from it, is no trifling evil in a state. But it is not simply as it respects the profession that fixed laws are thus injurious. They are the great ultimate occasion of those obstacles to the attainment of justice which are felt to be a grievance in almost all civilised nations. The delays and the expenses, and the undefined annoyances of vexation and disappointment, deter many from seeking their just rights. Delays are occasioned in a great degree by forms; and forms are a part of the system of fixed laws. Expenses are entailed by the necessity of complying with these forms, and of employing those persons whose knowledge is requisite to tell us what those forms are ;

1 Paley: Mor. and Pol. Phil., b. 6, c. 8.