Page:The Green Bag (1889–1914), Volume 15.pdf/141

THE COURT OF EQUITY-A THEORY OF ITS JURISDICTION. BY COLIN P. CAMPBELL. OF the three departments of government— early ve find the Egyptian king sending a legislative, executive and judicial—it is case of conspiracy to the judges to be tried1; likewise, in 1014 B. C. King Solomon exhi our purpose to deal with only the last. This may be roughly defined as that function in bited the judicial power in adjudging the government which adjudges concerning the parentage and right to a child brought him acts of those within the territory of the State claimed by two women." A curious decision or within the scope of its sovereignty, and of a Chaldean judge shows, in a remarkable degree, how closely these early peoples clung declares the rights and wrongs of those with to natural equity in their adjudications, in in its authority. The judiciary might be de fined as the power to adjudge violations of deed more than this, even to the extent of law and fix the result to the violator: but this requiring generosity beyond fairness in busi definition would mislead, and I purposely ness matters. The judgment was rendered in abstain from it for this reason. There is no the reign of Hammurabi, who lived from court or judicial body, and there never was, about 1546 to 1520 B. C., and concerned four that did not do more and the scope of the slaves, two male and two female, claimed by action of which was not broader than merely I the suitors respectively. The judge divided the slaves, giving each suitor one male and to adjudge violations of legislative declara tions. True, the definition under criticism each one female slave. The theory of the implies more, but its first impression is as adjudication is expressed in these words: narrow as the thought with which it has been "Brother to brother should be loving, credited. Courts everywhere and all the time brother from brother should not turn, should are to a greater or a lesser degree recogniz not quarrel over the whole. A brother to a ing other rules, the ancient common law, the brother should be generous, the whole he more modern contributions to it, and more should not have." 3 than these, even the dictates of natural rea Two facts are evident from the history of son and justice. these ancient peoples. One, that judicial The early, as well as the more modern, power centred in the sovereign who either history of this department shows the truth exercised it in person or delegated it to of the discrimination, and the verity of the judges and magistrates.4 Another, that the proposition that the purpose of the court is main rules for decision were those dictated not altogether to deal with violations of legis by wisdom, righteousness and justice.8 These lative ordinances, but covers the broader field statements are not intended to be understood occupied by that code, the precepts of which as indicating that there were no general laws lie at the basis of human association, are said or customs prevalent among the peoples to exist in the very nature of things, and spoken of; on the contrary there were very which, for lack of a better name, we call 1 Records of the Past, first series, vol. VIII, p. 57. rules of morality, justice or common honesty. 2 Bible,' I Kings iii, 16-28. 3 Records of the Past, first series, vol. V, p. 109-110. The judicial power of the sovereign is 4 I Samuel viii, 56; II Chronicles xix, 55; Exodus exhibited in ancient times among the Egyp xviii, 25. tians, the Assyrians and the Jews. Very s Bible, Deut. i, 16, 17; xvi, 19, 20.