Page:Harvard Law Review Volume 9.djvu/46

18 1 8 HARVARD LAW REVIEW. sequitur legem, which is sometimes quoted as if it possessed "a supreme and controlling efficacy." This rule "if followed literally, would leave nothing for the courts of equity to perform." ^ But in fact " the main business of equity is avowedly to correct and supplement the law."^ ** The qualification of this maxim is nothing less than the entire system of juridical equity itself, both jurisprudence and procedure, based, as has been seen, upon the theory that equity does not follow the law where the law does not follow justice or the public convenience." ^ Equity follows the law in its rules of decision only *' when it does not choose to follow differing rules of its own." * "Throughout the great mass of its jurisprudence, equity, instead of following the law, either ignores or openly disregards and opposes the law. . . . One large division of the equity jurisprudence lies completely outside of the law ; it is additional to the law ; and while it leaves the law concerning the same subject-matter in full force and efficacy, its doctrines and rules are constructed without any reference to the corre- sponding doctrines and rules of the law. Another division of equity jurisprudence is directly opposed to the law which applies to the same subject-matter; its doctrines and rules are so contrary to those of the law that when they are put into operation the analogous legal doctrines and rules are displaced and nullified. As these conclusions cannot be questioned, it is plain that the maxim, ' Equity follows the law,' is very partial and limited in its application, and cannot ... be regarded as a general principle."^ There are historical reasons which account for the frequent use of this maxim in early times.^ And there are, undoubtedly, cases, neither few in number nor unimportant, where courts of equity fol- low common law analogies.'^ But *' the maxim is, in truth, opera- tive only within a very narrow range ; to raise it to the position of a general principle would be a palpable error." ^ It is hardly too much to say that, at the present day, there is as much ground for asserting the reverse of this maxim as for assert- 1 2 Austin on Jurisprudence, 3d ed. 668. 2 Phelps' Juridical Equity, s. 237. 3 phelps' Juridical Equity, s. 239. ^ I Pomeroy's Equity Jurisprudence, ist ed. s. 427. « See Phelps' Juridical Equity, s. 237 ; also i Pomeroy's Equity Jurisprudence, ist, ed. s. 425. ■^ I Pomeroy's Equity Jurisprudence, ist ed. ss. 425, 426. 8 I Pomeroy's Equity Jurisprudence, ist ed. s. 427.
 * I Bishop, Law of Married Women, s. 16.