Ancient Law Chapter 3

ty 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 o

r 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 un

derstand 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 te

xture， 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

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