idiocy, lunacy, and the like, do iſſue; and for which it is always open to the ſubject:, who may there at any time demand and have, ex debito juſtitiae, any writ that his occasions may call for. Theſe writs (relating to the buſineſs of the ſubject) and the returns to them were, according to the ſimplicity of antient times, originally kept in a hamper, in hanaperio; and the others (relating to ſuch matters wherein the crown is immediately or mediately concerned) were preſerved in a little ſack or bag, in parva baga; and thence hath ariſen the diſtinction of the hanaper office, and petty bag office, which both belong to the common law court in chancery.
{[sc|But}} the extraordinary court, or court of equity, is now become the court of the greateſt judicial conſequence. This diſtinction between law and equity, as adminiſtred in different courts, is not at preſent known, nor ſeems to have ever been known, in any other country at any time[1]: and yet the difference of one from the other, when adminiſtred by the ſame tribunal, was perfectly familiar to the Romans[2]; the jus praetorium, or diſcretion of the praetor, being diſtinct: from the leges or ſtanding laws[3]: but the power of both centered in one and the ſame magistrate, who was equally inſructed to pronounce the rule of law, and to apply it to particular caſes by the principles of equity. With us too, the aula regia, which was the ſupreme court of judicature, undoubtedly adminiſtered equal juſtice according to the rules of both or either, as the caſe might chance to require: and, when that was broken to pieces, the idea of a court of equity, as diſtinguiſhed from a court of law, did not ſubſiſt in
b Thus Cicero; "jam illis promijps non cjje jiandiim, quis non <videt, quac con fins quis metu et deceptus a'olo fromiferil? quae qtiidcm plerum/jue jure praetorio liberantur, " nonnaila legibus" Oflic. /. I .
- ↑ The council of conſcience, inſtituted by John III, king of Portugal, to review the ſentences of all inferior courts, and moderate them by equity, (Mod. Un. Hid. xxii. 237.) ſeems rather to have been a court of appeal.
- ↑ Thus too the parliament of Paris, the court of ſeſſion in Scotland, and every other juriſdiction in Europe of which we have any tolerable account, found all their deciſions as well upon principles of equity as thoſe of poſitive law. (Lord Kayms. hiſtor. law-tracts, I. 325. 330. princ. of equit. 44.)
- ↑ b
