esent fixity of form when
they were settling its first bases. Others, again, complain--and this
is a grievance frequently observed upon in forensic arguments--that
the moral rules enforced by the Court of Chancery fall short of the
ethical standard of the present day. They would have each Lord
Chancellor perform precisely the same office for the jurisprudence
which he finds ready to his hand, which was performed for the old
common law by the fathers of English equity. But this is to invert the
order of the agencies by which the improvement of the law is carried
on. Equity has its place and its time; but I have pointed out that
another instrumentality is ready to succeed it when its energies are
spent.

Another remarkable characteristic of both English and Roman Equity is
the falsehood of the assumptions upon which the claim of the equitable
to superiority over the legal rule is originally defended. Nothing is
more distasteful to men, either as individuals or as masses, than the
admission of their moral progress as a substantive reality. This
unwillingness shows itself, as regards individuals, in the exaggerated
respect which is ordinarily paid to the doubtful virtue of
consistency. The movement of the collective opinion of a whole society
is too palpable to be ignored, and is generally too visible for the
better to be decried; but there is the greatest disinclination to
accept it as a primary phenomenon, and it is commonly explained as the
recovery of a lost perfection--the gradual return to a state from
which the race has lapsed. This tendency to look backward instead of
forward for the goal of moral progress produced anciently, as we have
seen, on Roman jurisprudence effects the most serious and permanent.
The Roman jurisconsults, in order to account for the improvement of
their jurisprudence by the Praetor, borrowed from Greece the doctrine
of a Natural state of man--a Natural society--anterior to the
organisation of commonwealths governed by positive laws. In England,
on the other hand, a range of ideas especially congenial to Englishmen
of that day, explained the claim of Equity to override the common law
by supposing a general right to superintend the administration of
justice which was assumed to be vested in the king as a natural result
of his paternal authority. The same view appears in a different and a
quainter form in the old doctrine that Equity flowed from the king's
conscience--the improvement which had