CHAPTER III

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 re-
corded dicta we often find entire texts from the
Corpus Juris Civilis imbedded, with their terms
unaltered, though their origin is never acknow-
ledged. Still more recently, and particularly at
the middle and during the latter half of the



39



40 LAW OF NATURE AND EQUITY [CHAP, in

eighteenth century, the mixed systems of juris-
prudence and morals constructed by the publicists
of the Low Countries appear to have been much
studied by English lawyers, and from the chan-
cellorship 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 concep-
tions 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



CHAP, in] EQUITY 41

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 cequitas) 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 con-
ceptions 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 consider-
able 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



42 LAW OF NATURE AND EQUITY [CHAP. HI

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 cir-
cumstances 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 them-
selves to be united by kinship in blood, and re-
sented a claim to equality of privilege as a usurpa-
tion 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



CHAP, in] LAW OF NATIONS 43

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 emi-
nently 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 degrada-
tion, 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



44 LAW OF NATURE AND EQUITY [CHAP, m

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 differ-
ent commonwealths surrounding Rome, the actual
transfer, tradition, or delivery of the article in-
tended 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 con-
veyance 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



CHAP, in] LAW OF NATIONS 45

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 pre-
cedence to the element which we had thus dis-
cerned 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 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 primi-
tive 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



46 LAW OF NATURE AND EQUITY [CHAP, in

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 at-
tempt to discriminate them was made by the
jurisconsult Ulpian, with the propensity to dis-
tinguish characteristic of a lawyer, but the lan-
guage 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



CHAP, in] NATURE 47

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 diplo-
macy. It is, however, unquestionable that indis-
tinct 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
Averts 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 lan-
guage. Nature signified the physical world re-
garded 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,
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



48 LAW OF NATURE AND EQUITY [CHAP. HI

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 sup-
posed 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 pro-
gress 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
tinbounded profligacy which was being diffused
through the imperial city by the pillage of the



CHAP. HI] THE STOICS 49

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 as 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 con-
fidently 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 jinajlcated of
resistance to passion. Just in the same way

4



5O LAW OF NATURE AND EQUITY [CHAP, in

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



CHAP, in] EQUITY 5 1

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 cere-
monials, and useless difficulties disappeared alto-
gether. 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 ^Equitas,
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 con-
ception. It has generally been supposed that
^Squitas is the equivalent of the Greek 10-07779,
i.e., the principle of equal or proportionate dis-
tribution. The equal division of numbers or
physical magnitudes is doubtless closely entwined
with ooir 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 com-
paratively late philosophy. It is remarkable too
that the " equality " of laws on which the Greek



52 LAW OF NATURE AND EQUITY [CHAP, m

democracies prided themselves that equality
which, in the beautiful drinking song of fallis-
tratus, Harmodius and Aristogiton are said to
have given to Athens had little in common with
the " equity " of the Romans. The jirst 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 " sequus " carries with it more dis-
tinctly than the Greek "10-09" 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 " relation-
ship, that is, between the Family considered as
based upon common subjection to patriarchal
authority and the Family considered (in con-
formity with modern ideas) as united through
the mere fact of a common descent. This dis-
tinction disappears in the " law common to all
nations/' as also does the difference between the
archaic forms of property, Things " Mancipi "



CHAP, in] EQUITY 53

and Things " nee Mancipi." The neglect of
demarcations and boundaries seems to me, there-
fore, the feature of the Jus Gentium which was
depicted in ^Equitas. I imagine that the word
was at first a mere description of that constant
levelling or removal of irregularities which went on
wlierever the praetorian system was applied to
the cases of foreign litigants. Probably no colour
of ethical meaning belonged at first to the ex-
pression ; 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 Ju
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



54 LAW OF NATURE AND EQUITY [CHAP, in

authority, and invested with the charms of
association with an elder and more blissful con-
dition 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
JEquitas was understood to convey an allusion
to the Greek theory, associations which grew
out of the Greek notion of ICTO'TTJS 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 instru-
mentality 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 accu-
mulated in the hands of a single person were



CHAP, in] THE PRJBTOR 55

parcelled out among a number of elective function-
aries, the very name of the kingly office being
retained and imposed on a personage known
subsequently as the Rex Sacrorum or Rex Sacri-
ficulus. 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 establish-
ment 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 in-
digenous 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



56 LAW OF NATURE AND EQUITY [CHAP, in

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 re-
strained ? How was authority so little definite
to be reconciled with a settled condition of society
and of law ? The answer can only be supplied by



CHAP. HI] RESTRAINTS OF THE PRflSTOR 57

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 qualifi-
cations 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



58 LAW OF NATURE AND EQUITY [CHAP. HI

unconsciously. The checks on his 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 Chan-
cellor, 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 experi-
enced 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. What-
ever they were, their effects on the Edict are
sufficiently plain. It ceased to be extended by



CHAP- i"] ROMAN EQUITY 59

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 Equit}'. 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 ex-
positors of the Edict had ventured to interfere.
But at the same time there was no corner of the



60 LAW OF NATURE AND EQUITY [CHAP, in

field of jurisprudence which was not more or less
swept over by the influence of Equity. It sup-
plied the jurist with all his materials for generalisa-
tion, 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 legis-
lative act.

The period of jurists ends with Alexander
Severus. From Hadrian to that emperor the im-
provement 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



CHAP, in] ENGLISH AND ROMAN EQUITY 6l

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, fylany 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



62 LAW OF NATURE AND EQUITY [CHAP, m

founders of the chancery jurisprudence contem-
plated its present fixity of form when they were
settling its first basis. Others, again, complain
and this is a grievance frequently observed upon
in forensic arguments that the moral rules en-
forced 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 ad-
mission 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 consis-
tency. The movement of the collective opinion
of a whole society is too palpable to be ignored,
and is generally too visibly 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



CHAP, in] ENGLISH AND ROMAN EQUITY 63

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 juriscon-
sults, 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^he organi-
sation of commonwealths governed%y 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 over-
ride 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 com-
munity 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 sub-
stitute 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 terms by those
writers who begin a discussion of the jurisdiction
of the Court of Chancery by laying down a dis-
tinction between natural justice and civil.