Ancient Law by Henry Maine Chapter 3

Ancient Law
by Henry Maine

Chapter 3

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 *@@@@, 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 @@@@@@, 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 "@@@@" 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 @@@@@@ 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 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
comer 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.