Ancient Law Chapter 3

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 Edi

ct 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，

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