BOOK II. judicial controversy, or as influencing the practices of separate courts in England or any where else: but that every tribunal of law is virtually and essentially a court of equity. How far he is well founded in this doctrine, so contrary, as we have seen, to the sentiments of those great Judges I have before referred to *, whose reason for a separation of the provinces of law and equity, was the just apprehension, that if they were united, the law would become altogether arbitrary and dependent on fluctuating opinion, arbitrium tandem legem trahet, I forbear farther to examine. I shall only remark, that the learned writer, in his strictures on the opinions of Lord Kames, has at least given proof of an imperfect acquaintance with the work which he has censured, and has mistaken altogether its very end and object; which, instead of enlarging the jurisdiction of a court of equity, and making its practice "the result of mere arbitrary "opinion, or of a dictatorial power riding 66 over the laws of the land," is calculated to restrain that jurisdiction within positive

*BACON and Lord HARDWICKE.

limits, to make its decisions the result of CHAP. II, settled principles, and render equity not the tyrannical controller, but the friendly assistant and coadjutor of positive law.

I do not mean, however, in what I have said on this subject, (perhaps at too great a length), to hold forth the Treatise on the Principles of Equity as exhibiting a perfect system, or as meriting the praise of a faultless work. I am far from thinking so. I am sensible, that, as the author himself acknowledges, in a new undertaking, (which this certainly was), there must be many omissions; and I am aware, that a strict examination may detect in it even errors of doctrine, and mistakes in point of reasoning*. But with every abatement which the

z 2

A remarkable example occurs in the author's reasoning with regard to the Lex Rhodia de jactu (Book i. Part i. art. 2.) where, in opposition to every other writer, and indeed to the most obvious rules of equity, he maintains, That the proprietors of the goods saved by throwing overboard a part of the cargo to lighten the ship in a storm, must contribute to make up the owner's loss, not in the proportion of the respective values of the goods saved, but in the proportion of their

BOOK II. rigour of judgment may demand, the work

will remain a monument of the genius and learning of its author, and will afford no mean instruction both to the rational student of jurisprudence, and the intelligent judge in a court of equity.

respective weights: so that the owner of a large diamond, or of a bank-bill of L. 10,000 value, ought not to pay a thousandth, perhaps a millionth part of the salvage to be paid by the owner of a log of wood, or a bar of iron.—In this example, as in a few others, the metaphysical subtlety of the author has perverted his judgment.

CHAPTER III.

Lord Kames's various literary occupations." Introduc"tion to the Art of Thinking."-Correspondence with Dr B. Franklin.

Lord Kames' various litera

tions.

THE active mind of Lord KAMES, earnestly CHAP. occupied for some years, as we have seen, by studies and researches connected with his profession, appears now to have sought ry occupa a relaxation for a while, by turning to pursuits of a nature altogether different in their object, yet sufficiently interesting to give full employment to his comprehensive powers, and a grateful exercise to his ruling passion, the desire for the improvement of mankind. A strong sense of the parental duties led him to turn his attention to the education of his children, as soon as he judged the infant mind capable of receiving elementary

BOOK II. instruction, the passions beginning to exert their influence, so as to require a judicious guidance and controul, and a dawning of the moral sense sufficient to lay the foundation of just impressions of right and wrong, vice and virtue.

It occurred to him, that the faculty of reflecting and forming general observations, -a faculty weak and imperfect in the state of infancy, is capable of great improvement by judicious culture. It was his opinion, that this, though a most essential branch of education, is seldom cultivated with due care. "Nature," he observes," in her

course, begins with particulars, and as"cends gradually to what is general and "abstract. But nature is ill seconded in "the ordinary course of education. We are first employed, it is true, in languages, geography, history, natural philosophy, "subjects that deal in particulars. But at 66. one bound, we are carried to the most "abstract studies: logics, for example, and "metaphysics. These indeed give exer"cise to the reasoning faculty; but it will "not be said, that they are the best quali