of procedure which required parties to obtain a decision on points of law raised by the alleged facts, before going to proof on those facts. In place of this procedure, the court used its discretion to allow mixed questions of fact and law to proceed, so that the court would pronounce the law subsequently on the basis of facts which had emerged in further investigation. This procedure allowed the court in effect to adapt the law to the particular circumstances of individual cases.25
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The court also had the power by its nobile officium to introduce new rules to overcome imperfections in the law. There was some debate over how far this extended. Lord Bankton illustrated the power by referring to “a memorable instance” in 1725 when the Court of Session made an act of sederunt26 to order the brewers of Edinburgh, who had entered a resolution to give up their trade, to give a security that they would continue to brew beer, on pain of imprisonment.27 Some critics found this legislative power of the court to be alarming. James Boswell wrote a Letter to the People of Scotland in 1785, in which he described the nobile officium of the court as an “undefined arbitrary jurisdiction.”28 He referred his readers to Gilbert Stuart, who had said that through its exercise, “the judicial powers usurp upon the legislative.” “It is in a wild hostility with our constitution,” Stuart added. “It is a Turkish jurisdiction in a country of liberty.”29 Another writer attacked the Court of Session’s use of its nobile officium to make acts of sederunt which repealed or dispensed with statutes, or imposed taxes.30 Yet if some pamphleteers found this power dubious, particularly when it was seen to usurp the role of legislation, most legal writers regarded it as a necessary means to allow new remedies to emerge to
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deal with imperfections in the common law, in areas which attracted little legislative attention.31
Kames explained his own understanding of the nobile officium in the Historical Law-Tracts. He associated it with a power to redress wrongs of all kinds. It worked in a way to uncover principles for unsettled subjects on which men were apt to disagree and judge by sentiment. As he put it,
Matters of law are ripened in the best manner, by warmth of debate at the bar, and coolness of judgment on the bench; and after many successful experiments of a bold interposition for the publick good, the court of session will clearly perceive the utility, of extending their jurisdiction to every sort of wrong, where the persons injured have no other means of obtaining redress.32
This meant that “all extraordinary actions, not founded on common law, but invented to redress any defect or wrong in the common law, are appropriated to the court of session,” exercising a jurisdiction denied to inferior courts.33
Kames himself explored this power of equity in his reports. For instance, in his report of the case of Charles M‘Kinnon contra Sir James M‘Donald in his Select Decisions of the Court of Session from the Year 1752 to the Year 1758, he commented on how a new rule regarding which heir could take charge of a deceased person’s estate had emerged “in the famous case of Sir George M‘Kenzie’s entail.” The new rule developed by the judges, he commented, “was a new exertion of the nobile officium in order to remedy many hardships, and even injustice that must arise in this case, from the aforesaid rule of succession established at common law.” Kames proceeded to explain to readers the reason for the rule, and to make a commentary on what he felt were the consequences of the rule.34 In his
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Elucidations Respecting the Common and Statute Law of Scotland, he also set out proposals on how the Court of Session could use its nobile officium to provide new remedies.35
Kames also discussed the nature of the nobile officium of the Court of Session in a letter he wrote in 1764 to Robert Dundas of Arniston, Lord President of the Court of Session, proposing an act of sederunt which would reform an aspect of Scottish bankruptcy law.36 In an accompanying document on the jurisdiction of the court, Kames sought to persuade his colleague that the court did have this power, giving numerous examples of the court’s use of its equitable powers, and arguing that the court must be taken to have inherited the powers of the Scottish Privy Council to redress injuries, after its abolition at the union.37
In the Principles of Equity, Kames did not discuss the nobile officium of the Court of Session as such, for in this book he was interested in exploring a wider concept of equity which would speak to English as well as Scots lawyers. Here he argued that equity intervened both when the settled rules of the common law acted in an unjust way and when they failed to fulfill the needs of justice. This occurred as societies progressed and the moral sense began to recognize connections between people which turned benevolence into a duty. Equity’s intervention was not boundless, however: it was limited to those connections which related to interests in property. Equity could not concern itself with connections arising from personal circumstances, for it was only the former which could be made into a rule. The book was therefore primarily about property and civil obligations. In the body of the work, he accordingly spent much time exploring what constituted an unjustified enrichment—discussing the Roman law maxim Nemo debet locupletari aliena jactura38—and what principles lay behind the respective claims of different creditors on an indebted estate.
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A further feature of equity identified by Kames was that it looked more closely at the intentions and motivations of parties, so that it could root out injustices to which the common law was blind. For instance, when dealing with contracts and deeds, the common law simply looked to the text, whereas equity could look at the real intentions of the parties. Hence, much of the book was concerned with showing how the court should interpret contracts, and at how it treated vitiating factors such as pre-contractual pressure or undue influence. Just as equity could go farther than common law with deeds, so it could intervene in other civil wrongs. For example, where the common law only looked at whether a man had exercised his rights, a court of equity could look at his intentions and intervene against a man who had exercised a right with the sole motive of harming another. Equity also intervened, he added, to prevent the common law acting in an unjust way, as where the wording of statutes went beyond their intended purpose and led to injustice in particular cases.
Much of the Principles of Equity was devoted to discussing how equity worked to secure justice when the common law failed to do so. But Kames added that a court of equity also intervened on the grounds of utility, by preventing acts which were not in themselves unjust, but which were mischievous and against the public interest. For the most part, the principle of justice (which looked only to the individual litigants) and the principle of utility (which looked to the interests of society) worked in harmony. But he noted that they might come into opposition. In such cases “[e]quity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society.”39 For example, the regulations which were designed to abridge lawsuits meant that the courts would refuse to listen to a claim which an individual might have in justice—as where he had accepted an unequal settlement of a lawsuit in error—simply because to do otherwise would be to encourage endless litigation. At first glance, it may be thought that Kames’s stress on utility sat uneasily with his theory of justice, as derived from the moral sense. Yet the two were not in his view incompatible. For Kames’s argument suggested that utility itself dictated the limits of equity. One might, he noted, be
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able to do justice in individual cases, but without being able to formulate this into a rule. To allow judges nevertheless to give a remedy in such cases created the risk of making them arbitrary and often unjust, which would be harmful to society.40 There were hence limits to equity’s
