LAW OF NATURE AND EQUITY
The theory of a set of legal principles, entitled by their intrinsic
superiority to supersede the older law, very early obtained currency
both in the Roman state and in England. Such a body of principles,
existing in any system, has in the foregoing chapters been denominated
Equity, a term which, as will presently be seen, was one (though only
one) of the designations by which this agent of legal change was known
to the Roman jurisconsults. The jurisprudence of the Court of
Chancery, which bears the name of Equity in England, could only be
adequately discussed in a separate treatise. It is extremely complex
in its texture and derives its materials from several heterogeneous
sources. The early ecclesiastical chancellors contributed to it, from
the Canon Law, many of the principles which lie deepest in its
structure. The Roman law, more fertile than the Canon Law in rules
applicable to secular disputes, was not seldom resorted to by a later
generation of Chancery judges, amid whose recorded dicta we often find
entire texts from the _Corpus Juris Civilis_ imbedded, with their
terms unaltered, though their origin is never acknowledged. Still more
recently, and particularly at the middle and during the latter half of
the eighteenth century, the mixed systems of jurisprudence and morals
constructed by the publicists of the Low Countries appear to have been
much studied by English lawyers, and from the chancellorship of Lord
Talbot to the commencement of Lord Eldon's chancellorship these works
had considerable effect on the rulings of the Court of Chancery. The
system, which obtained its ingredients from these various quarters,
was greatly controlled in its growth by the necessity imposed on it of
conforming itself to the analogies of the common law, but it has
always answered the description of a body of comparatively novel legal
principles claiming to override the older jurisprudence of the country
on the strength of an intrinsic ethical superiority.
The Equity of Rome was a much simpler structure, and its development
from its first appearance can be much more easily traced. Both its
character and its history deserve attentive examination. It is the
root of several conceptions which have exercised profound influence on
human thought, and through human thought have seriously affected the
destinies of mankind.
The Romans described their legal system as consisting of two
ingredients. "All nations," says the Institutional Treatise published
under the authority of the Emperor Justinian, "who are ruled by laws
and customs, are governed partly by their own particular laws, and
partly by those laws which are common to all mankind. The law which a
people enacts is called the Civil Law of that people, but that which
natural reason appoints for all mankind is called the Law of Nations,
because all nations use it." The part of the law "which natural reason
appoints for all mankind" was the element which the Edict of the
Praetor was supposed to have worked into Roman jurisprudence. Elsewhere
it is styled more simply Jus Naturale, or the Law of Nature; and its
ordinances are said to be dictated by Natural Equity (_naturalis
aequitas_) as well as by natural reason. I shall attempt to discover
the origin of these famous phrases, Law of Nations, Law of Nature,
Equity, and to determine how the conceptions which they indicate are
related to one another.
The most superficial student of Roman history must be struck by the
extraordinary degree in which the fortunes of the republic were
affected by the presence of foreigners, under different names, on her
soil. The causes of this immigration are discernible enough at a later
period, for we can readily understand why men of all races should
flock to the mistress of the world; but the same phenomenon of a large
population of foreigners and denizens meets us in the very earliest
records of the Roman State. No doubt, the instability of society in
ancient Italy, composed as it was in great measure of robber tribes,
gave men considerable inducement to locate themselves in the territory
of any community strong enough to protect itself and them from
external attack, even though protection should be purchased at the
cost of heavy taxation, political disfranchisement, and much social
humiliation. It is probable, however, that this explanation is
imperfect, and that it could only be completed by taking into account
those active commercial relations which, though they are little
reflected in the military traditions of the republic, Rome appears
certainly to have had with Carthage and with the interior of Italy in
pre-historic times. Whatever were the circumstances to which it was
attributable, the foreign element in the commonwealth determined the
whole course of its history, which, at all its stages, is little more
than a narrative of conflicts between a stubborn nationality and an
alien population. Nothing like this has been seen in modern times; on
the one hand, because modern European communities have seldom or never
received any accession of foreign immigrants which was large enough to
make itself felt by the bulk of the native citizens, and on the other,
because modern states, being held together by allegiance to a king or
political superior, absorb considerable bodies of immigrant settlers
with a quickness unknown to the ancient world, where the original
citizens of a commonwealth always believed themselves to be united by
kinship in blood, and resented a claim to equality of privilege as a
usurpation of their birthright. In the early Roman republic the
principle of the absolute exclusion of foreigners pervaded the Civil
Law no less than the Constitution. The alien or denizen could have no
share in any institution supposed to be coeval with the State. He
could not have the benefit of Quiritarian law. He could not be a party
to the _nexum_ which was at once the conveyance and the contract of
the primitive Romans. He could not sue by the Sacramental Action, a
mode of litigation of which the origin mounts up to the very infancy
of civilisation. Still, neither the interest nor the security of Rome
permitted him to be quite outlawed. All ancient communities ran the
risk of being overthrown by a very slight disturbance of equilibrium,
and the mere instinct of self-preservation would force the Romans to
devise some method of adjusting the rights and duties of foreigners,
who might otherwise--and this was a danger of real importance in the
ancient world--have decided their controversies by armed strife.
Moreover, at no period of Roman history was foreign trade entirely
neglected. It was therefore probably half as a measure of police and
half in furtherance of commerce that jurisdiction was first assumed in
disputes to which the parties were either foreigners or a native and a
foreigner. The assumption of such a jurisdiction brought with it the
immediate necessity of discovering some principles on which the
questions to be adjudicated upon could be settled, and the principles
applied to this object by the Roman lawyers were eminently
characteristic of the time. They refused, as I have said before, to
decide the new cases by pure Roman Civil Law. They refused, no doubt
because it seemed to involve some kind of degradation, to apply the
law of the particular State from which the foreign litigant came. The
expedient to which they resorted was that of selecting the rules of
law common to Rome and to the different Italian communities in which
the immigrants were born. In other words, they set themselves to form
a system answering to the primitive and literal meaning of Jus
Gentium, that is, Law common to all Nations. Jus Gentium was, in fact,
the sum of the common ingredients in the customs of the old Italian
tribes, for they were _all the nations_ whom the Romans had the means
of observing, and who sent successive swarms of immigrants to Roman
soil. Whenever a particular usage was seen to be practised by a large
number of separate races in common it was set down as part of the Law
common to all Nations, or Jus Gentium. Thus, although the conveyance
of property was certainly accompanied by very different forms in the
different commonwealths surrounding Rome, the actual transfer,
tradition, or delivery of the article intended to be conveyed was a
part of the ceremonial in all of them. It was, for instance, a part,
though a subordinate part, in the Mancipation or conveyance peculiar
to Rome. Tradition, therefore, being in all probability the only
common ingredient in the modes of conveyance which the jurisconsults
had the means of observing, was set down as an institution Juris
Gentium, or rule of the Law common to all Nations. A vast number of
other observances were scrutinised with the same result. Some common
characteristic was discovered in all of them, which had a common
object, and this characteristic was classed in the Jus Gentium. The
Jus Gentium was accordingly a collection of rules and principles,
determined by observation to be common to the institutions which
prevailed among the various Italian tribes.
The circumstances of the origin of the Jus Gentium are probably a
sufficient safeguard against the mistake of supposing that the Roman
lawyers had any special respect for it. It was the fruit in part of
their disdain for all foreign law, and in part of their disinclination
to give the foreigner the advantage of their own indigenous Jus
Civile. It is true that we, at the present day, should probably take a
very different view of the Jus Gentium, if we were performing the
operation which was effected by the Roman jurisconsults. We should
attach some vague superiority or precedence to the element which we
had thus discerned underlying and pervading so great a variety of
usage. We should have a sort of respect for rules and principles so
universal. Perhaps we should speak of the common ingredient as being
of the essence of the transaction into which it entered, and should
stigmatise the remaining apparatus of ceremony, which varied in
different communities, as adventitious and accidental. Or it may be,
we should infer that the races which we were comparing had once obeyed
a great system of common institutions of which the Jus Gentium was the
reproduction, and that the complicated usages of separate
commonwealths were only corruptions and depravations of the simpler
ordinances which had once regulated their primitive state. But the
results to which modern ideas conduct the observer are, as nearly as
possible, the reverse of those which were instinctively brought home
to the primitive Roman. What we respect or admire, he disliked or
regarded with jealous dread. The parts of jurisprudence which he
looked upon with affection were exactly those which a modern theorist
leaves out of consideration as accidental and transitory; the solemn
gestures of the mancipation; the nicely adjusted questions and answers
of the verbal contract; the endless formalities of pleading and
procedure. The Jus Gentium was merely a system forced on his attention
by a political necessity. He loved it as little as he loved the
foreigners from whose institutions it was derived and for whose
benefit it was intended. A complete revolution in his ideas was
required before it could challenge his respect, but so complete was it
when it did occur, that the true reason why our modern estimate of the
Jus Gentium differs from that which has just been described, is that
both modern jurisprudence and modern philosophy have inherited the
matured views of the later jurisconsults on this subject. There did
come a time, when from an ignoble appendage of the Jus Civile, the Jus
Gentium came to be considered a great though as yet imperfectly
developed model to which all law ought as far as possible to conform.
This crisis arrived when the Greek theory of a Law of Nature was
applied to the practical Roman administration of the Law common to
all Nations.
The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law
of Nations seen in the light of a peculiar theory. An unfortunate
attempt to discriminate them was made by the jurisconsult Ulpian, with
the propensity to distinguish characteristic of a lawyer, but the
language of Gaius, a much higher authority, and the passage quoted
before from the Institutes leave no room for doubt, that the
expressions were practically convertible. The difference between them
was entirely historical, and no distinction in essence could ever be
established between them. It is almost unnecessary to add that the
confusion between Jus Gentium, or Law common to all Nations, and
_international law_ is entirely modern. The classical expression for
international law is Jus Feciale or the law of negotiation and
diplomacy. It is, however, unquestionable that indistinct impressions
as to the meaning of Jus Gentium had considerable share in producing
the modern theory that the relations of independent states are
governed by the Law of Nature.
It becomes necessary to investigate the Greek conceptions of nature
and her law. The word [Greek: physis], which was rendered in the Latin
_natura_ and our _nature_, denoted beyond all doubt originally the
material universe, but it was the material universe contemplated under
an aspect which--such is our intellectual distance from those
times--it is not very easy to delineate in modern language. Nature
signified the physical world regarded as the result of some primordial
element or law. The oldest Greek philosophers had been accustomed to
explain the fabric of creation as the manifestation of some single
principle which they variously asserted to be movement, force, fire,
moisture, or generation. In its simplest and most ancient sense,
Nature is precisely the physical universe looked upon in this way as
the manifestation of a principle. Afterwards, the later Greek sects,
returning to a path from which the greatest intellects of Greece had
meanwhile strayed, added the _moral_ to the _physical_ world in the
conception of Nature. They extended the term till it embraced not
merely the visible creation, but the thoughts, observances, and
aspirations of mankind. Still, as before, it was not solely the moral
phenomena of human society which they understood by _Nature_, but
these phenomena considered as resolvable into some general and simple
laws.
Now, just as the oldest Greek theorists supposed that the sports of
chance had changed the material universe from its simple primitive
form into its present heterogeneous condition, so their intellectual
descendants imagined that but for untoward accident the human race
would have conformed itself to simpler rules of conduct and a less
tempestuous life. To live according to _nature_ came to be considered
as the end for which man was created, and which the best men were
bound to compass. To live according to _nature_ was to rise above the
disorderly habits and gross indulgences of the vulgar to higher laws
of action which nothing but self-denial and self-command would enable
the aspirant to observe. It is notorious that this proposition--live
according to nature--was the sum of the tenets of the famous Stoic
philosophy. Now on the subjugation of Greece that philosophy made
instantaneous progress in Roman society. It possessed natural
fascinations for the powerful class who, in theory at least, adhered
to the simple habits of the ancient Italian race, and disdained to
surrender themselves to the innovations of foreign fashions. Such
persons began immediately to affect the Stoic precepts of life
according to nature--an affectation all the more grateful, and, I may
add, all the more noble, from its contrast with the unbounded
profligacy which was being diffused through the imperial city by the
pillage of the world and by the example of its most luxurious races.
In the front of the disciples of the new Greek school, we might be
sure, even if we did not know it historically, that the Roman lawyers
figured. We have abundant proof that, there being substantially but
two professions in the Roman republic, the military men were generally
identified with the party of movement, but the lawyers were universally
at the head of the party of resistance.
The alliance of the lawyers with the Stoic philosophers lasted through
many centuries. Some of the earliest names in the series of renowned
jurisconsults are associated with Stoicism, and ultimately we have the
golden age of Roman jurisprudence fixed by general consent at the era
of the Antonine Caesars, the most famous disciples to whom that
philosophy has given a rule of life. The long diffusion of these
doctrines among the members of a particular profession was sure to
affect the art which they practised and influenced. Several positions
which we find in the remains of the Roman jurisconsults are scarcely
intelligible, unless we use the Stoic tenets as our key; but at the
same time it is a serious, though a very common, error to measure the
influence of Stoicism on Roman law by counting up the number of legal
rules which can be confidently affiliated on Stoical dogmas. It has
often been observed that the strength of Stoicism resided not in its
canons of conduct, which were often repulsive or ridiculous, but in
the great though vague principle which it inculcated of resistance to
passion. Just in the same way the influence on jurisprudence of the
Greek theories, which had their most distinct expression in Stoicism,
consisted not in the number of specific positions which they
contributed to Roman law, but in the single fundamental assumption
which they lent to it. After nature had become a household word in the
mouths of the Romans, the belief gradually prevailed among the Roman
lawyers that the old Jus Gentium was in fact the lost code of Nature,
and that the Praetor in framing an Edictal jurisprudence on the
principles of the Jus Gentium was gradually restoring a type from
which law had only departed to deteriorate. The inference from this
belief was immediate, that it was the Praetor's duty to supersede the
Civil Law as much as possible by the Edict, to revive as far as might
be the institutions by which Nature had governed man in the primitive
state. Of course, there were many impediments to the amelioration of
law by this agency. There may have been prejudices to overcome even in
the legal profession itself, and Roman habits were far too tenacious
to give way at once to mere philosophical theory. The indirect methods
by which the Edict combated certain technical anomalies, show the
caution which its authors were compelled to observe, and down to the
very days of Justinian there was some part of the old law which had
obstinately resisted its influence. But, on the whole, the progress of
the Romans in legal improvement was astonishingly rapid as soon as
stimulus was applied to it by the theory of Natural Law. The ideas of
simplification and generalisation had always been associated with the
conception of Nature; simplicity, symmetry, and intelligibility came
therefore to be regarded as the characteristics of a good legal
system, and the taste for involved language, multiplied ceremonials,
and useless difficulties disappeared altogether. The strong will, and
unusual opportunities of Justinian were needed to bring the Roman law
to its existing shape, but the ground plan of the system had been
sketched long before the imperial reforms were effected.
What was the exact point of contact between the old Jus Gentium and
the Law of Nature? I think that they touch and blend through AEquitas,
or Equity in its original sense; and here we seem to come to the first
appearance in jurisprudence of this famous term, Equity. In examining
an expression which has so remote an origin and so long a history as
this, it is always safest to penetrate, if possible, to the simple
metaphor or figure which at first shadowed forth the conception. It
has generally been supposed that AEquitas is the equivalent of the
Greek [Greek: isotes], _i.e._ the principle of equal or proportionate
distribution. The equal division of numbers or physical magnitudes is
doubtless closely entwined with our perceptions of justice; there are
few associations which keep their ground in the mind so stubbornly or
are dismissed from it with such difficulty by the deepest thinkers.
Yet in tracing the history of this association, it certainly does not
seem to have suggested itself to very early thought, but is rather the
offspring of a comparatively late philosophy. It is remarkable too
that the "equality" of laws on which the Greek democracies prided
themselves--that equality which, in the beautiful drinking song of
Callistratus, Harmodius and Aristogiton are said to have given to
Athens--had little in common with the "equity" of the Romans. The
first was an equal administration of civil laws among the citizens,
however limited the class of citizens might be; the last implied the
applicability of a law, which was not civil law, to a class which did
not necessarily consist of citizens. The first excluded a despot; the
last included foreigners, and for some purposes slaves. On the whole,
I should be disposed to look in another direction for the germ of the
Roman "Equity." The Latin word "aequus" carries with it more distinctly
than the Greek "[Greek: isos]" the sense of _levelling_. Now its
levelling tendency was exactly the characteristic of the Jus Gentium,
which would be most striking to a primitive Roman. The pure
Quiritarian law recognised a multitude of arbitrary distinctions
between classes of men and kinds of property; the Jus Gentium,
generalised from a comparison of various customs, neglected the
Quiritarian divisions. The old Roman law established, for example, a
fundamental difference between "Agnatic" and "Cognatic" relationship,
that is, between the Family considered as based upon common subjection
to patriarchal authority and the Family considered (in conformity with
modern ideas) as united through the mere fact of a common descent.
This distinction disappears in the "law common to all nations," as
also does the difference between the archaic forms of property, Things
"Mancipi" and Things "nec Mancipi." The neglect of demarcations and
boundaries seems to me, therefore, the feature of the Jus Gentium
which was depicted in AEquitas. I imagine that the word was at first a
mere description of that constant _levelling_ or removal of
irregularities which went on wherever the praetorian system was applied
to the cases of foreign litigants. Probably no colour of ethical
meaning belonged at first to the expression; nor is there any reason
to believe that the process which it indicated was otherwise than
extremely distasteful to the primitive Roman mind.
On the other hand, the feature of the Jus Gentium which was presented
to the apprehension of a Roman by the word Equity, was exactly the
first and most vividly realised characteristic of the hypothetical
state of nature. Nature implied symmetrical order, first in the
physical world, and next in the moral, and the earliest notion of
order doubtless involved straight lines, even surfaces, and measured
distances. The same sort of picture or figure would be unconsciously
before the mind's eye, whether it strove to form the outlines of the
supposed natural state, or whether it took in at a glance the actual
administration of the "law common to all nations"; and all we know of
primitive thought would lead us to conclude that this ideal similarity
would do much to encourage the belief in an identity of the two
conceptions. But then, while the Jus Gentium had little or no
antecedent credit at Rome, the theory of a Law of Nature came in
surrounded with all the prestige of philosophical authority, and
invested with the charms of association with an elder and more
blissful condition of the race. It is easy to understand how the
difference in the point of view would affect the dignity of the term
which at once described the operation of the old principles and the
results of the new theory. Even to modern ears it is not at all the
same thing to describe a process as one of "levelling" and to call it
the "correction of anomalies," though the metaphor is precisely the
same. Nor do I doubt that, when once AEquitas was understood to convey
an allusion to the Greek theory, associations which grew out of the
Greek notion of [Greek: isotes] began to cluster round it. The
language of Cicero renders it more than likely that this was so, and
it was the first stage of a transmutation of the conception of Equity,
which almost every ethical system which has appeared since those days
has more or less helped to carry on.
Something must be said of the formal instrumentality by which the
principles and distinctions associated, first with the Law common to
all Nations, and afterwards with the Law of Nature, were gradually
incorporated with the Roman law. At the crisis of primitive Roman
history which is marked by the expulsion of the Tarquins, a change
occurred which has its parallel in the early annals of many ancient
states, but which had little in common with those passages of
political affairs which we now term revolutions. It may best be
described by saying that the monarchy was put into commission. The
powers heretofore accumulated in the hands of a single person were
parcelled out among a number of elective functionaries, the very name
of the kingly office being retained and imposed on a personage known
subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the
change, the settled duties of the supreme judicial office devolved on
the Praetor, at the time the first functionary in the commonwealth, and
together with these duties was transferred the undefined supremacy
over law and legislation which always attached to ancient sovereigns
and which is not obscurely related to the patriarchal and heroic
authority they had once enjoyed. The circumstances of Rome gave great
importance to the more indefinite portion of the functions thus as
transferred, as with the establishment of the republic began that
series of recurrent trials which overtook the state, in the difficulty
of dealing with a multitude of persons who, not coming within the
technical description of indigenous Romans, were nevertheless
permanently located within Roman jurisdiction. Controversies between
such persons, or between such persons and native-born citizens, would
have remained without the pale of the remedies provided by Roman law,
if the Praetor had not undertaken to decide them, and he must soon
have addressed himself to the more critical disputes which in the
extension of commerce arose between Roman subjects and avowed
foreigners. The great increase of such cases in the Roman Courts about
the period of the first Punic War is marked by the appointment of a
special Praetor, known subsequently as the Praetor Peregrinus, who gave
them his undivided attention. Meantime, one precaution of the Roman
people against the revival of oppression, had consisted in obliging
every magistrate whose duties had any tendency to expand their sphere,
to publish, on commencing his year of office, an Edict or
proclamation, in which he declared the manner in which he intended to
administer his department. The Praetor fell under the rule with other
magistrates; but as it was necessarily impossible to construct each
year a separate system of principles, he seems to have regularly
republished his predecessor's Edict with such additions and changes as
the exigency of the moment or his own views of the law compelled him
to introduce. The Praetor's proclamation, thus lengthened by a new
portion every year, obtained the name of the Edictum Perpetuum, that
is, the _continuous_ or _unbroken_ edict. The immense length to which
it extended, together perhaps with some distaste for its necessarily
disorderly texture, caused the practice of increasing it to be stopped
in the year of Salvius Julianus, who occupied the magistracy in the
reign of the Emperor Hadrian. The edict of that Praetor embraced
therefore the whole body of equity jurisprudence, which it probably
disposed in new and symmetrical order, and the perpetual edict is
therefore often cited in Roman law merely as the Edict of Julianus.
Perhaps the first inquiry which occurs to an Englishman who considers
the peculiar mechanism of the Edict is, what were the limitations by
which these extensive powers of the Praetor were restrained? How was
authority so little definite reconciled with a settled condition of
society and of law? The answer can only be supplied by careful
observation of the conditions under which our own English law is
administered. The Praetor, it should be recollected, was a jurisconsult
himself, or a person entirely in the hands of advisers who were
jurisconsults, and it is probable that every Roman lawyer waited
impatiently for the time when he should fill or control the great
judicial magistracy. In the interval, his tastes, feelings,
prejudices, and degree of enlightenment were inevitably those of his
own order, and the qualifications which he ultimately brought to
office were those which he had acquired in the practice and study of
his profession. An English Chancellor goes through precisely the same
training, and carries to the woolsack the same qualifications. It is
certain when he assumes office that he will have, to some extent,
modified the law before he leaves it; but until he has quitted his
seat, and the series of his decisions in the Law Reports has been
completed, we cannot discover how far he has elucidated or added to
the principles which his predecessors bequeathed to him. The influence
of the Praetor on Roman jurisprudence differed only in respect of the
period at which its amount was ascertained. As was before stated, he
was in office but for a year, and his decisions rendered during his
year, though of course irreversible as regarded the litigants, were of
no ulterior value. The most natural moment for declaring the changes
he proposed to effect occurred therefore at his entrance on the
praetorship, and hence, when commencing his duties, he did openly and
avowedly that which in the end his English representative does
insensibly and sometimes unconsciously. The checks on this apparent
liberty are precisely those imposed on an English judge. Theoretically
there seems to be hardly any limit to the powers of either of them,
but practically the Roman Praetor, no less than the English Chancellor,
was kept within the narrowest bounds by the prepossessions imbibed
from early training and by the strong restraints of professional
opinion, restraints of which the stringency can only be appreciated by
those who have personally experienced them. It may be added that the
lines within which movement is permitted, and beyond which there is to
be no travelling, were chalked with as much distinctness in the one
case as in the other. In England the judge follows the analogies of
reported decisions on insulated groups of facts. At Rome, as the
intervention of the Praetor was at first dictated by simple concern for
the safety of the state, it is likely that in the earliest times it
was proportioned to the difficulty which it attempted to get rid of.
Afterwards, when the taste for principle had been diffused by the
Responses, he no doubt used the Edict as the means of giving a wider
application to those fundamental principles, which he and the other
practising jurisconsults, his contemporaries, believed themselves
to have detected underlying the law. Latterly he acted wholly under
the influence of Greek philosophical theories, which at once tempted
him to advance and confined him to a particular course of progress.
The nature of the measures attributed to Salvius Julianus has been
much disputed. Whatever they were, their effects on the Edict are
sufficiently plain. It ceased to be extended by annual additions, and
henceforward the equity jurisprudence of Rome was developed by the
labours of a succession of great jurisconsults who fill with their
writings the interval between the reign of Hadrian and the reign of
Alexander Severus. A fragment of the wonderful system which they built
up survives in the Pandects of Justinian, and supplies evidence that
their works took the form of treatises on all parts of Roman Law, but
chiefly that of commentaries on the Edict. Indeed, whatever be the
immediate subject of a jurisconsult of this epoch, he may always be
called an expositor of Equity. The principles of the Edict had, before
the epoch of its cessation, made their way into every part of Roman
jurisprudence. The Equity of Rome, it should be understood, even when
most distinct from the Civil Law, was always administered by the same
tribunals. The Praetor was the chief equity judge as well as the great
common law magistrate, and as soon as the Edict had evolved an
equitable rule the Praetor's court began to apply it in place of or by
the side of the old rule of the Civil Law, which was thus directly or
indirectly repealed without any express enactment of the legislature.
The result, of course, fell considerably short of a complete fusion of
law and equity, which was not carried out till the reforms of
Justinian. The technical severance of the two elements of
jurisprudence entailed some confusion and some inconvenience, and
there were certain of the stubborner doctrines of the Civil Law with
which neither the authors nor the expositors of the Edict had ventured
to interfere. But at the same time there was no corner of the field of
jurisprudence which was not more or less swept over by the influence
of Equity. It supplied the jurist with all his materials for
generalisation, with all his methods of interpretation, with his
elucidations of first principles, and with that great mass of limiting
rules which are rarely interfered with by the legislator, but which
seriously control the application of every legislative act.
The period of jurists ends with Alexander Severus. From Hadrian to
that emperor the improvement of law was carried on, as it is at the
present moment in most continental countries, partly by approved
commentaries and partly by direct legislation. But in the reign of
Alexander Severus the power of growth in Roman Equity seems to be
exhausted, and the succession of jurisconsults comes to a close. The
remaining history of the Roman law is the history of the imperial
constitutions, and, at the last, of attempts to codify what had now
become the unwieldy body of Roman jurisprudence. We have the latest
and most celebrated experiment of this kind in the _Corpus Juris_ of
Justinian.
It would be wearisome to enter on a detailed comparison or contrast of
English and Roman Equity, but it may be worth while to mention two
features which they have in common. The first may be stated as
follows. Each of them tended, and all such systems tend, to exactly
the same state in which the old common law was when Equity first
interfered with it. A time always comes at which the moral principles
originally adopted have been carried out to all their legitimate
consequences, and then the system founded on them becomes as rigid, as
unexpansive, and as liable to fall behind moral progress as the
sternest code of rules avowedly legal. Such an epoch was reached at
Rome in the reign of Alexander Severus; after which, though the whole
Roman world was undergoing a moral revolution, the Equity of Rome
ceased to expand. The same point of legal history was attained in
England under the chancellorship of Lord Eldon, the first of our
equity judges who, instead of enlarging the jurisprudence of his court
by indirect legislation, devoted himself through life to explaining
and harmonising it. If the philosophy of legal history were better
understood in England, Lord Eldon's services would be less exaggerated
on the one hand and better appreciated on the other than they appear
to be among contemporary lawyers. Other misapprehensions too, which
bear some practical fruit, would perhaps be avoided. It is easily seen
by English lawyers that English Equity is a system founded on moral
rules; but it is forgotten that these rules are the morality of past
centuries--not of the present--that they have received nearly as much
application as they are capable of, and that though of course they do
not differ largely from the ethical creed of our own day, they are not
necessarily on a level with it. The imperfect theories of the subject
which are commonly adopted have generated errors of opposite sorts.
Many writers of treatises on Equity, struck with the completeness of
the system in its present state, commit themselves expressly or
implicitly to the paradoxical assertion that the founders of the
chancery jurisprudence contemplated its present 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 in fact taken place in the moral
standard of the community being thus referred to an inherent elevation
in the moral sense of the sovereign. The growth of the English
constitution rendered such a theory unpalatable after a time; but, as
the jurisdiction of the Chancery was then firmly established, it was
not worth while to devise any formal substitute for it. The theories
found in modern manuals of Equity are very various, but all are alike
in their untenability. Most of them are modifications of the Roman
doctrine of a natural law, which is indeed adopted in tenour by those
writers who begin a discussion of the jurisdiction of the Court of
Chancery by laying down a distinction between natural justice and
civil.