Commentaries on the Laws of England

Answers

• Q11JUDGMENT

  Should a judge follow a general rule when it produces an unjust result in a particular case?

  Yes. prefer the rule. Allows equity to correct law's generality but holds that law without equity, though hard, is better than equity without law, which would make every judge a legislator.

  For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. And these are the cases, which, as Grotius expresses it, "_lex non exacte definit, sed arbitrio boni viri permittit_." EQUITY thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

  Introduction, Section 2, 'Of the Nature of Laws in General' · Quoted passage confirmed in Introduction §2 (constitution.org, UT Austin text). Section title from memory; No text link opened.