LECTURE XXXIV.
EQUITY AS A DEPARTMENT OF LAW CONSIDERED HISTORICALLY. JURISDICTION OF THE PRÆTOR URBANUS.
Various equivalent circumlocutions for ‘Equity’ as meaning positive Law, or a portion or department of a system of positive Law.
Having examined certain meanings of the term ‘Equity’ as not denoting Law (or a portion of some body of law), I proceed to those portions of certain bodies of law which are distinguished by the name of ‘equity,’ or by the epithet of ‘equitable;’ or which are said to owe their creation to the suggestions of ‘equity;’ or which are said to be remarkable for their ‘equitable’ spirit; or which are said to rest exclusively, or in the main, upon ‘equitable’ grounds or principles.
Of all those portions or departments of bodies or systems 584of Law, which have gotten the name of ‘Equity,’ or the epithet of ‘equitable,’ the most remarkable and interesting are the following: namely, that portion or department of the Roman Law, which was introduced by the perpetual Edicts of the Prætores Urbani; and that portion or department of the Law of England which is exclusively49 administered by tribunals styled ‘Courts of Equity,’ and was introduced by judicial decisions of the English Chancellors as exercising their extraordinary jurisdiction.
49 See note, p. 601, post.—R. C.
Equity of Prætors called jus prætorium; æquitas not being the Law which he makes, but the (personified) principle of legislation (utility or other) which determines him to make it. English Equity ought to be called rather, Chancery Law.
That portion of the Roman Law which was introduced by the perpetual edicts of the Prætores Urbani, is commonly styled Jus prætorium. That portion of the Law of England which is exclusively administered by Courts styled ‘of Equity,’ I would call ‘Chancery Law.’ For, though it is not administered by the Court of Chancery only, it was introduced, and (in the main) has been formed, by judicial decisions of that high tribunal.
The application of the term ‘Equity’ to that portion of our Law, and of the phrase ‘Courts of Equity’ to the tribunals by which it is administered, is grossly improper, and leads to gross misconceptions. Taking equity as not meaning law, Courts of Equity and Courts of Law are equally concerned with it, or equally strangers to it. Taking the term’ Equity’ as meaning a species of interpretation; or as meaning the impartiality which is incumbent on judges and arbiters; or as meaning judicial decision not determined by rules; or as meaning good principles of direct or judicial legislation; or as meaning the cheerful performance of imperfect duties; or as meaning positive morality, or good principles of deontology, the Courts styled ‘of Equity’ and the Courts styled ‘of Law’ are equally concerned with Equity, or are equally strangers to Equity.
Having premised these remarks, together with the prefatory explanations contained in my last Lecture, I shall endeavour to compare or contrast Prætorian and Chancery Law as perspicuously and as correctly as the brevity to which I am constrained will permit.
This comparison or contrast will subserve a double purpose.
Equity as a department of law: an historical and particular notion.
First: It will shew that the distinction between Law and Equity (meaning by equity a portion or department of law) is not deducible from the universal principles of jurisprudence, but is accidental and anomalous: that in every system of law, in which the distinction obtains, the import of the distinction is singular or peculiar, or (changing the expression) that the distinction between Law and Equity, which obtains in one system, resembles in name, rather than in substance, the distinction between Law and Equity which obtains in another.
585Secondly: By previously comparing or contrasting Prætorian and Chancery Law, I shall be able to state and examine, with more clearness and effect, the distinctive properties of direct and judicial legislation: the respective advantages and disadvantages of the two species; with the much agitated and interesting question, which regards the expediency of reducing bodies of Law into formal systems or Codes.
But in order that I may institute this projected comparison or contrast, and may make it subserve the purposes at which I have now pointed, I must state the nature of the jurisdiction exercised by the Prætores Urbani; and also the nature and causes of the direct legislative power, which they first exercised with the tacit, and then with the express, authority of the sovereign Roman People.
The history and nature of the jurisdiction exercised by the Court of Chancery is, I may confidently assume, well understood by my hearers. To that, therefore, as to something sufficiently known, I shall merely allude.
Criminal Jurisdiction liberâ republicâ, with distinction of wrongs into public and private.
Liberâ republicâ, or before the virtual dissolution of the free or popular government, criminal cases were regularly tried and determined by the assembled Roman People: Though, by virtue of particular and exceptional laws, the particular criminal cases, to which those laws related, were tried and determined by bodies of judices, or jurymen, to which, as to committees of its own number or body, the sovereign people delegated its judicial powers.
Hence it is, that the parts of the Institutes and Pandects which relate to criminal procedure, bear the title ‘De judiciis publicis.’ And hence it is, that ‘crimen’ is often styled in the language of the Roman Law ‘delictum publicum.’ Since the regular or ordinary tribunal was the people, community, or public, the trial and judgment were naturally styled ‘public;’ and the epithet naturally applied to the trial and judgment, was as naturally extended to the delict or offence itself.
After the popular government had been virtually dissolved, and the trial of criminal cases gradually withdrawn from the people, criminal procedure and crimes still kept the names of ‘judicia et delicta publica:’ Although the epithet ‘public’ (in its primary import) was now no more applicable to criminal procedure or crimes than to civil procedure or the delicts styled ‘ private.’
And since crimes and criminal procedure kept the epithet 586of ‘public,’ although (in its primary import) it had ceased to apply with propriety, the Classical Jurists justified or accounted for the epithet in the following manner: They supposed that crimes affect the public or community; whilst the mischief of private delicts, and of other civil injuries, is limited to the injured individuals. That it is, therefore, the interest of the public to pursue or prevent crimes; whilst the pursuit or prevention of private delicts, and of other civil injuries, may be left to the discretion of the individuals who feel or who are obnoxious to the damage.
Civil Jurisdiction of Prætores Urbani.
In the earlier ages of the Roman Republic, civil jurisdiction (or jurisdiction properly so called) was exercised by the Consuls. But as the Consuls were commonly busied with military command, a magistracy styled ‘Prætura’ was afterwards created; and to the magistrate by whom this office was filled, the civil jurisdiction originally exercised by the Consuls was completely transferred.
When I say that civil jurisdiction was originally exercised by the Consuls, and afterwards by the Prætors (as representatives or substitutes of the Consuls), I understand the proposition with certain limitations. For, in certain excepted cases, civil jurisdiction was exercised by magistrates styled Centumviri; by the Ædiles (or the conservators of public buildings, roads and markets); and also by the Pontifices (or priests). But in respect of my present purpose, these exceptions are immaterial, and may therefore be dismissed with this brief and passing notice.
The tribunal of the original Prætor (or of the Prætor who was appointed as the representative or substitute of the Consuls) was fixed immovably in the City of Rome: And (owing to the cause which I explained in a former Lecture) his jurisdiction was originally restricted to civil cases arising between Roman Citizens. Consequently, after the subsequent appointment of the Prætor Peregrinus, and of Presidents or Governors (sometimes styled ‘Prætors’) to the outlying provinces, he was styled, by way of distinction, Prætor Urbanus. When that distinctive epithet was not needed, he was styled Prætor simply.
Order of procedure before the Prætor as exercising his judicial function.
The judicial functions of the Prætor bore less resemblance to the functions of our own Court of Chancery, than to those of our own Court of Common Pleas, or of our other Common Law Courts (regarded as civil Tribunals).
For, in causes falling within his jurisdiction, the ordinary or regular procedure was this:—
587The Prætor alone disposed of the cause, or the Prætor alone heard and determined, in the following events:
First, If the defendant confessed the facts contained in the plaintiff’s case, without disputing their sufficiency in law to sustain the demand:
Secondly, If the contending parties were agreed as to the facts, but came to an issue of law:
Thirdly, If the defendant disputed the truth of the plaintiff’s statement, but the statement was supported by evidence so short, clear, and convincing, that the Prætor could decide the issue of fact without an elaborate and nice inquiry.
But if the parties came to an issue involving a question of fact, and the evidence produced to the Prætor appeared doubtful, the Prætor defined or made up the issue, or put the disputed point into a formula or statement.
The formula (or statement of the issue) being prepared by the Prætor, the issue was submitted to the decision of a Judex or Arbiter: Who (it seems) was appointed for the particular or specific occasion; and is rather to be regarded as a juryman (taken pro re natâ from the citizens at large) than as a permanent judicial officer.
The judex or arbiter thus appointed, not only inquired into the question of fact, but gave judgment generally upon the issue submitted to his decision.
The formula (or statement of the issue), together with the judgment of the judex or arbiter, was remitted to the Prætor (or to the Court above).
The judgment of the judex or arbiter, was then carried into execution by or by the command of the Prætor: By whom (in every cause) the consummation, as well as the initiative of the procedure, was superintended or directed.
Jurisdictio, what. Coercitio. Imperium merum: mixtum.
It may here be observed that jurisdictio was properly the power of hearing and determining causes, or of associating a judex or arbiter when necessary. This was all that the word meant, and the Prætor had this power by virtue of his jurisdictio. Jurisdictio was distinct from the coercitio (or power of compelling and restraining) which might be necessary to carry into effect the judgment of the Prætor or judex.
The power of compelling or restraining (when vested in criminal tribunals) was called imperium, or imperium merum; and is often synonymous with our ‘criminal jurisdiction.’ ‘Jurisdiction’ (in Roman law-language) is seldom or never applied to 588criminal jurisdiction. When combined with civil jurisdiction, the power of coercing was styled imperium mixtum.
Imperium merum, as well as mixtum, resided in the Presidents or Governors of Provinces.
The Prætors, whose jurisdiction was merely civil, had imperium mixtum only.
The Præfectus urbi (under the emperors) imperium merum only.
Order of procedure before the Prætor, etc.
From this division of judicial power between the prætor and the judex, the functions of the prætor more resembled those of the Courts of Common Law, than those of the Court of Chancery.
The important differences between the functions of the prætor and those of our Common Law Courts were the following:
First, the formula empowered the judex not simply to find for one party or for the other, but to add to the finding what should be done by the parties in pursuance of the finding; not only to give a verdict but to give judgment; the verdict being involved in the terms of the judgment which he gave. This was then remitted to the court above, and by them merely executed. With us the jury merely finds for one party or the other: what shall be done in pursuance of the finding, is determined by the court above.
Secondly, another very important difference is this. With us, where the parties come to an issue of fact, the cause goes to the jury at all events; but in the Roman law, the cause was not necessarily referred to a judex because the issue was an issue of fact. It was at the discretion of the prætor either to give a judex or not. When he did so he acted more like the chancellor when he directs an issue. The cases would be exactly alike, if the chancellor granted an issue whenever the question of fact could not be properly tried in the court above. There was the same difficulty in settling the bounds between the power of the prætor and that of the judex, as with us between the judge and the jury, where the boundary is perfectly indefinite. It is often said indeed that the court judges of the law, the jury only of the fact: but it is only necessary to look at the terms of the finding, to see that this maxim is false. Generally, and notoriously, the jury is judge of law as well as of fact. In the Roman law there was the same difficulty; for though the issues were made up with great preciseness, they often involved questions of law: and the judgment often directed the prætor to come to a certain conclusion if certain premises were established: which involved a proposition of law as well as of fact. Si paret Aulum Egerium 589apud Numerium Egerium argentum deposuisse idque die nominato Numerius Egerius Aulo Egerio non reddiderit … condemnato.
Jus et judicium.
I may remark also that the proceedings before the prætor were called proceedings in jure; those before the judex or arbiter to whom he remitted any part of the case, proceedings in judicio.
Natural procedure. Afterwards altered.
I shall also observe, that the original proceedings before the prætor approached more closely than any other proceedings which I know to what Mr. Bentham calls natural procedure; for the whole pleading or process by which the precise point at issue is elicited, took place vivâ voce in the presence of the prætor himself. The witnesses were present and the prætor himself decided the cause immediately and on the spot, if the question of fact was not attended with difficulty. Nothing could be more summary or less dilatory and expensive.
After the judicial constitution was changed, the distinction between the prætor and the judex was abolished, and the whole proceeding took place before a single judge. A similar alteration took place about the same period in the manner of conducting the pleading. The parties began to put in their mutual allegations in writing, in the modern form: which has introduced the delay and expense of the administration of justice in modern times.
Procedure on an Interdict. See next Lecture.
In certain cases, the prætor at the outset gave provisional or conditional judgments, or issued provisional commands on an ex parte statement by the Plaintiff: a process like an injunction in Chancery or a mandamus in the Courts of Common Law. The command being issued provisionally by the prætors, the parties to whom it was addressed were compelled to obey it if they considered that they had not a case; if they considered that they had, they might shew cause why they should not obey the command provisionally issued. If the party in possession disputed the command and shewed cause against it, and there appeared doubt as to a question of fact, this question was treated in the regular manner and remitted to a judex.
Cognitio, or proceeding extra ordinem.
What I have now described was the regular and ordinary proceeding. In certain cases, which it is not necessary to detail, the prætor was said to have not only jurisdictio but cognitio. He might enquire into a question of fact, whatever might be its difficulties, and dispose of the whole case without a judex or arbiter. The prætor, too, like some modern courts of justice, exercised a voluntary jurisdiction in cases relating to contracts. The proceedings in such cases are not suits at all: though it is within the province of courts of justice to give judicial authority 590to the convention and to facilitate the production of evidence if any difficulty arise. In the old Roman law, the prætor exercised this jurisdiction de plano, not pro tribunali. As the cause was not a suit inter partes, but merely a convention or contract, it was not conducted with the forms of judicature. The prætor lent his auspices, not as a judge, but as sanctioning the proceeding. Fines and recoveries in the Common Pleas50 are very similar to this jurisdiction of the Prætors; and what was called in jure cessio51 is exactly analogous to fine and recovery. This was a mere conveyance, in the form of a fictitious suit, carried on in the presence of the prætor, with nearly all the formalities which accompanied a real suit.
50 An instance of modern procedure bearing probably a still closer analogy to the interposition of judicial authority mentioned in the text, is furnished by bonds and contracts bearing a clause of registration for execution, according to the Scotch practice.—R. C.
51 Gaii Comm. ii. § 22.
Res mancipi were alienable by Mancipation (a fictitious sale); in jure cessio (a fictitious suit); or (if corporeal) by usucapion working upon simple tradition.—Marginal note in Gaius.
Ultimately cognitio, or proceeding extra ordinem, universal.
The jurisdiction which I have attempted to describe, and the division of the judicial powers in certain cases between the court above and an occasional temporary tribunal, seems to have been altered about the end of the third century. It was in force in the time of Gaius: but in the time of Justinian the old judicial establishments had been completely altered. It is for that reason asserted in the Institutes hodie omnia judicia sunt extra ordinem. The cognisance of the suit from its institution to its completion was then wholly had by a single judge, and the original practice, which seems to have been generally adopted, of dividing the judicial power in the manner above mentioned, was dropped.
The only close resemblance between Roman and English Equity appears to be this: that under each system the law corrected or abrogated by the so-called equity law is allowed to exist in form.
Another resemblance; that Roman and English Equity has been formed to some extent by analogy on the law to which it is contrasted: the one by analogy to jus civile (subsequitur jus civile); the other, to Common Law (sequitur legem). Of course they must have deviated; but analogy was observed to some considerable extent. This, however, is not a proof of resemblance, since much of every body of innovating law is formed by the same analogy.