605
[end of lecture 35]

LECTURE XXXVI.

JUS PRÆTORIUM AND ENGLISH EQUITY COMPARED.

Having sketched the history of the Prætorian Edict to the accession and reign of Justinian, I will note the effect of its structure on the arrangement of his Code and Pandects, before I examine the opinions concerning the nature of Equity to which I alluded in my last discourse.

The Roman Law, as it was left by Justinian, lies mainly in his Code and Pandects: it having been the intention of their imperial projector, that they should comprise the whole of the Roman Law to obtain thereafter in the Empire.

His Institutes are properly a hornbook for the instruction or institution of students; though, since its publication was subsequent to the publications of the Code and Pandects, this properly institutional treatise was regarded as a source of law, in so far as it conflicted with those two compilations, or in so far as it was concerned with matters for which those two compilations had not provided.

The publications of his Code, Pandects and Institutes, completed the design of the imperial reformer. His Novels, or new Constitutions, were published subsequently; and are merely partial supplements, or partial correctives, to the three compilations embraced by his original project.

Matter of the Code and Pandects.

His Code and Pandects are digests of Roman Law in force at the time of their conception: His Code being a compilation of imperial constitutions issued by his predecessors and himself; and his Pandects or Digests being a compilation of excerpts from the writings of the jurisconsults whose opinions were deemed authoritative.

There are, indeed, in these two compilations (though composed of imperial constitutions and excerpts from writings by jurisconsults) numerous traces of laws established by the Populus and Plebs, of Consults emanating from the Senate, and of general Edicts issued by the Prætors. For laws of the populus and plebs, consults of the senate, and general edicts of the prætors, 606are referred or alluded to in many of the constitutions and excerpts of which these two compilations properly consist.

The matter, therefore, of his Code and Pandects, may be conceived and described in the following manner:

His Code is composed partly of edictal or general constitutions: that is to say, statutes made and promulged by Roman Emperors or Princes, in their quality of sovereign legislators. But it also is composed partly of special constitutions; that is to say, judicial decretes (and orders analogous to decretes) issued by Roman Emperors in their quality of sovereign administrators.

His Pandects are composed entirely, or almost entirely, of excerpts from writings by jurisconsults. Some of these excerpts are analogous and equivalent to statutes: being didactic expositions, in general or abstract terms, of laws or principles of law. Others are mere resolutions of specific or particular questions, and therefore are analogous and equivalent to judicial decisions.—Nay, as having been adopted and promulged by Justinian (who was sovereign in the Roman World), these general expositions and particular resolutions are properly statutes and judicial decisions; although those characters cannot be properly attributed to them as being the productions of their original authors.

Each, therefore, of these two compilations is a compound of statute and judiciary law: being partly a collection of statutes proceeding immediately from a sovereign legislator, and partly a collection of judicial decisions proceeding immediately from a sovereign judge.

Arrangement of the Code and Pandects.

Though the Code is a collection of imperial constitutions, and the Pandects are a collection of excerpts from writings by jurisconsults, the order or arrangement of each of these two compilations is copied from the order of the Perpetual Edict: that is to say, the prætorian edict (or chain, of prætorian edicts), as altered by the jurisconsult Julian, and promulged by the Emperor Hadrian.

This appears from the Commission (to adopt a modern expression), by which Tribonian, and certain associates, are commanded to select excerpts from the writings of the authoritative jurisconsults, and to place such excerpts in Pandects (or in compartments constructed for the reception of them). For in this Commission (which is prefixed to the Digests or Pandects, and is styled Justinian’s Constitution, ‘De Conceptione Digestorum’) he commands Tribonian and his associates to arrange the selected excerpts, ‘tam secundum nostri constitutionem codicis, quam edicti perpetui imitationem.’

607It is probable that the order of the Code and Pandects imitated the order of the Perpetual Edict, for the following reasons or causes.

In the first place: Neither the laws of the Populus or Plebs, nor the consults of the Senate, nor the constitutions of the Emperors, nor the judicial decisions of the subordinate tribunals, had ever been digested or even collected. Consequently, The order of the Prætorian Edict (which, though it was a shapeless mass of occasional and insulated rules, was, at least, a collection of rules) was the only known model for the arrangement of the projected compilations. And, since Tribonian and his associates were uninventive and servile copiers, they naturally ordered the matter of these compilations according to the solitary pattern which the Edict presented to their imitation.

Like the redactors of the Prussian and French Codes, they might have arranged the matter of these compilations, according to the scientific or systematic method which had been pursued by most of the Classical Jurists who had composed elementary treatises for the instruction of students. But this scientific method had never in fact been observed by any but institutional writers. And consequently, although it was followed by these slavish imitators in the composition of Justinian’s Institutes, they never thought of pursuing it in the composition of those larger compilations which were destined to embrace the detail of Justinian’s legislation.

In the second place: Many of the writings of the jurisconsults whose opinions were deemed authoritative, were running annotations or commentaries on the jus prætorium. And the writings of these jurisconsults at, and long before, the accession of Justinian, were perpetually consulted by judges and practising lawyers. And this may have been a reason for arranging the Code and Pandects according to the order of the Prætorian Edict. Their contents (it may have been thought) would be more accessible to judges and practising lawyers, if arranged according to a method with which they were already familiar.

As I shall shew hereafter, when I touch upon the nameless absurdities of these clumsy compilations, the compilers meant them to contain the whole of the law. Yet many of the provisions contained in them must have been unintelligible, except by referring to the ancient law which they were designed to supersede.

Since the contents of the Code and, Pandects were arranged 608according to the order of the Prætorian Edict, their arrangement has as little pretension to the name of systematic as if it were merely alphabetical.

Till the reign of Hadrian, the various rules, comprised by the Prætorian Edict, stood in the order of the respective times at which they had been introduced through a long succession of ages. Nor does it appear that Julian, who wrought upon the edict under Hadrian, did anything of much importance towards ordering or arranging its contents. As promulged by Hadrian, the Edict of the Prætors (though considerably altered in its details) seems to have retained its ancient and venerable form (or its ancient and venerated deformity).

The arrangement of the Code and Pandects may therefore be suggested by the following comparison:—Let us imagine that the rules or principles which constitute the equity of the Chancellors, stood in the order of the times at which they were respectively introduced: That the Law created by Acts of Parliament were digested in that order: That excerpts from the decisions of our various tribunals (and the writings of our authoritative lawyers), were digested in the same order: And that these two digests of our statute and judiciary law were passed and promulged, by an Act of the Parliament, as the Law to obtain thereafter in England or the United Kingdom.

Now the imagined Digest of our statute law would answer nearly to Justinian’s Code. I say ‘nearly.’ For many of the imperial constitutions of which that chaos is composed, are not edictal or general constitutions (or statutes promulged by the Emperors in their legislative capacity), but are decrees issued by the Emperors as judges in the last resort

The imagined digest of our judiciary law would correspond to Justinian’s Pandects. But with this difference: That the Pandects consist of excerpts from the writings of authoritative lawyers; whilst the imagined digest in question (though partly consisting of such excerpts) would principally consist of excerpts from the judicial decisions of our tribunals.

Supposition that the direct legislative power exercised by the Prætors was usurped, and introduced per artes.

By many modern writers, the direct legislative power exercised by the Prætors is considered as usurped. It is supposed that the changes, which they wrought in the Roman Law, were introduced per artes (or surreptitiously), and were a cheat upon the sovereign legislature.

It is said, for example, by Heineccius, in his excellent Antiquities of the Roman Law:

609‘Quamvis vero Prætores initio magistratus in legis jurarent: revera tamen leges edictis suis evertebant sub specie æquitatis. Utebantur hanc in rem variis artibus, veluti fictionibus; quando, verbi gratiâ, fingebant, rem usucaptam, quæ usucapta haud esset, vel contra, etc.’⁵³ Now fictions like that which Heineccius here cites (and all the prætorian fictions were equally palpable), could not have deceived any one. The prætorian fictions, therefore, were not artes, nor was it the purpose of their authors to introduce their innovations covertly.

When, for example, the Prætor declared by his edict, ‘that, in certain cases, a thing acquired by usucapion, would be by him considered as not having been so acquired,’ he abrogated a portion of the jus civile relating to usucapion, as avowedly and openly as if he had formally annulled it And all the fictions by which the Proctors upset the jus civile, were just as palpable as that to which I now have adverted. They commonly consisted in feigning or assuming, ‘that something which obviously was, was not; or that something which obviously was not, was.’ It is ridiculous to suppose that such fictions could deceive, or were intended to deceive. Nay, the very writers who reproach the Prætors with their artes, laugh at the grossness of the socalled lies, with which (as they imagine) the Prætors accomplished their unholy purposes.

And the remark which I now have made, will apply to the fictions through which our own tribunals have abrogated certain portions of the statute law. Can it be conceited for a moment, by any reasonable person, that fines and recoveries (for example) ever deceived anybody, or were intended to deceive? that the authors of these absurdities hoped to impose upon the nobility whose great estates they were trying to break down? or that heirs in tail, or remaindermen and reversioners, were trepanned out of their interests by that ridiculous juggling? Such a conceit is really more absurd than the foolery to which it relates.

It is, indeed, extremely difficult to determine, why subordinate judges, in innovating on existing law, have so often accomplished their object through the medium of fictions. I incline to impute this curious phænomenon to two causes.

1°. A respect on the part of the innovating judges for the law which they virtually changed. By accomplishing the change through a fiction, they rather eluded the existing law, than formally annulled it: they preserved its integrity to appearance, although they broke it in effect.

6102°. A wish to conciliate (as far as possible) the friends or lovers of the law which they really annulled. If a prætor, or other subordinate judge, had said openly and avowedly, ‘I abrogate such a law,’ or ‘I make such a law,’ he might have given offence to the lovers of things ancient, by his direct and arrogant assumption of legislative power. By covering the innovation with a decent lie, he treated the abrogated law with all seemly respect, whilst he knocked it on the head. With regard to their causes and effects, the fictions through which judges innovate on existing law, may be likened to those conventional, and not incommodious lies, through which much of the intercourse of polished society is habitually carried on. If a man, for example, call at your house, and you flatly let him know that you don’t wish to see him, you insult him. But if you say, through your servant, ‘not at home,’ you intimate just as clearly the same thing, and you let him know your meaning in a respectful and inoffensive manner.

Such (I think) are the causes to which we may impute the fictions through which innovations by judges have been so often accomplished.

For many of the fictions (or as some choose to call them, lies) by which positive law is so often darkened and disgraced, I cannot account. For they seem to be assumed without necessity, or to answer no purpose.

Such, for example, is the fiction, in our own law, that husband and wife are one person:’ Or the, fiction, in the older Roman Law, ‘that the wife is the daughter of her husband:’ Or the fiction, in the Roman Law (which Sterne has laughed at in his ‘Tristram Shandy’), ‘that the mother and son are not of kin.’

The meaning of these several fictions, is merely this: That the parties have certain rights, or lie under certain duties, or certain incapacities. When it is said, for example, ‘that husband and wife are one person,’ the meaning merely is, that they lie under certain incapacities with respect to one another. And where those incapacities do not intervene, the fiction of their unity ceases, and they are deemed twain.

When it is said ‘that the wife is the daughter of the husband,’ the meaning is merely this:—That, like his sons and daughters, she is subject to his dominium or potestas: that, like his sons and daughters, she succeeds to him ab intestato: and that succeeding to her husband ab intestato, and being to certain 611purposes a member of his family, she is excluded from succeeding ab intestato to members of the family out of which she married.

When it is said ‘that the mother is not of kin to her son,’ the meaning is merely this: That she is not related to the son by agnation, or through male progenitors: and that, not being related to her son through agnation, she could not succeed to him (jure civili) as an agnat, though she could succeed to him as his cognat by virtue of the prætorian edict which admitted cognats to succession.

Why the plain meanings which I now have stated should be obscured by the fictions to which I have just adverted, I cannot conjecture. A wish on the part of the authors of the fictions to render the law as uncognoscible as may be, is probably the cause which Mr. Bentham would assign. I judge not, I confess, so uncharitably. I rather impute such fictions to the sheer imbecility (or, if you will, to the active and sportive fancies) of their grave and venerable authors, than to any deliberate design, good or evil.

That the direct legislative power assumed by the Prætors was not usurped and was not assumed covertly, will also amply appear from the following obvious considerations.

Though it was not assumed, in the beginning, by the direct authority of the sovereign Roman People, it was assumed and exercised, from the beginning, with their tacit approbation. For the law made by the Prætors in the exercise of this legislative power, was made under the eyes of the people, whose interests it concerned, and who, by an expression of their will, might have abolished it, and called its makers to account. And being statute law, briefly expressed and formally and conspicuously promulged, neither the fact of its enactment, nor the purpose at which it aimed, could have been overlooked or misconceived by the most incurious and the least intelligent.

Add to this, that it was made and promulged under the eyes, and therefore with the approbation, of the Tribunes of the people:⁵⁴ who by their veto might have prevented it from taking effect, and forced its authors to recall it.

And though the legislative power exercised by the Prætors was not assumed in the beginning by the direct authority of the people, it afterwards was sanctioned directly by acts of the sovereign legislature. For numberless leges of the populus and 612plebs, with numberless consults of the senate, assume that the jus prætorium is parcel of the Roman law, and accommodate their enactments to its provisions: just as acts of our own parliament are moulded and fashioned on the judge-made law of the tribunals.

The obvious truth is, that in Rome (as in most other communities), powers of legislation, direct and judicial, were assumed and exercised by subordinate judges; at first with the tacit approbation, and in time by the direct authority, of the sovereign legislature.

In almost every community, such has been the incapacity, or such the negligence, of the sovereign legislature, that unless the work of legislation had been performed mainly by subordinate judges, it would not have been performed at all, or would have been performed most ineffectually: with regard to a multitude of most important subjects, the society would have lived without law; and with regard to a multitude of others, the law would have remained in pristine barbarity.

Perceiving this palpable truth, the sovereign legislature, in almost every community, has permitted and authorised subordinate judges to perform functions which it ought to exercise itself. And till sovereign legislatures are much better constructed than they have been heretofore, this palpable necessity for judge-made law will inevitably continue.

Judge-made law, or law made by subordinate judges, has therefore obtained, in almost every community, on account of its obvious utility. But the jus prætorium was peculiarly acceptable to the Roman people, on account of the mode in which it was made: because it was not judiciary law, imbedded in a heap of particular decisions, but was clear and concise statute law, really serving as a guide of conduct. In the Digests, it is favourably contrasted, for this very reason, with judiciary law: the certainty of the one being opposed to the comparative uncertainty and ex post facto operation of the other.

‘Magistratus quoque (says Pomponius) jura reddebant. Et ut scirent cives, quod jus de quâque causâ quisque dicturus esset, seque præmunirent, edicta magistratus proponebant: quæ edicta prætorum jus honorarium constituerunt.’ Lord Coke’s redactions (if authorised) would have strongly resembled Prætorian Edicts, and been statute: for law given in general formulæ is statute law.

The only circumstance to be regretted is, that the legislative power of the judges is not exercised directly and avowedly with 613us, as it was in Rome; that judge-made law is not made in the form of statute law, but in that of judiciary law; that our Courts do not, like the Prætors, promulge their law in the form of general rules, and thus legislate openly instead of covertly.

All the mischief and confusion which have been occasioned by our judge-made law, have arisen from the covert mode in which it has been introduced. But this was the effect of constitutional jealousy, which seldom interferes but to prevent some good. Constitutional jealousy would have forbidden the judges to assume and exercise eo nomine the power of legislation, but it allows them, on condition of proceeding bit by bit, to nibble away really good institutions. This same constitutional jealousy is always perverse and absurd. It is always straining at gnats and swallowing camels. (e.g. Police, Army.)

I may here remark upon a strange inconsistency of Hugo and other German jurists, who are great enemies of codes, and admirers of customary law, as being made by the people themselves, but who yet profess the greatest admiration of the Roman Law.

As lovers of customary law, they depreciate statute law generally, and especially abhor codes, or compact and systematic bodies of law. As historians and admirers of the Roman Law, they insist (and justly insist) on those excellencies of the jus prætorium which I have briefly stated or suggested. They do not perceive that those excellences belong to it as being a faint approach to a code: and that they belong to a well-made code in a degree incomparably higher.

Examination of some current and erroneous opinions concerning the rationale of the distinction between strict Law and Equity.

614From the foregoing Historical Sketch of the Prætorian Edict (and of the effect produced by its form on the forms of the Code and Pandects), I proceed to a short examination of some current and erroneous opinions concerning the rationale of the distinction between strict Law and Equity. In the course of which examination, I shall briefly compare or contrast the jus prætorium, and the rules of equity introduced by the English Chancellors.

Examination of the opinion that the distinction of law into law and equity is necessary or essential. The distinction is accidental and historical.

It seems to be imagined by many, that the distinction in question is necessary or essential; or, in other words, that every system of positive law is distinguished or distinguishable into Law and Equity. But, in truth, the distinction is confined to the particular systems of some particular nations. In every nation, moreover, whose legal system has been distinguished into law and equity, the distinction arose entirely or principally from causes which operated exclusively in that very community. And accordingly, the equity obtaining in any of the systems to which the distinction is confined, is widely different from the equity obtaining in any of the rest.

The distinction, therefore, is not universal and necessary, but is particular and accidental. And, being particular and accidental, it may be styled an historical distinction; since its import is not to be found in the principles of general jurisprudence, but must be gathered from the respective histories of the several systems of law to which it is respectively peculiar.

Is nearly confined to Roman and English Law.

So far is the distinction from being universal and necessary, that I believe it is nearly confined to the Roman and English Law. In most, indeed, of the Anglo-American States, a distinct body of law bearing the name of equity, is administered by distinct courts, styled Courts of Equity, or is administered, in conjunction with the Common Law, by the ordinary tribunals. But since the law of most of those states is mainly a derivative of the English, it may be said that equity, as meaning a portion of positive law, is nearly confined to the Roman and English systems. In other particular systems there is equity, in the other senses to which I shall advert hereafter.

There is equity (for instance), as meaning judicial impartiality: equity as meaning æquitas legislatoria, or impartial maxims of legislation: equity, as meaning the arbitrium of the judge: or equity, as meaning the parity or analogy which is the ground of the so-called interpretation ex ratione legis. But there is no body of positive law, distinguished by the name of equity, and opposed, under that denomination, to other portions of the legal system.

615In France, for example, the arrêts réglementaires, issued by the ancient parliaments, bore a close resemblance to the edicts of the Roman Prætors. For they were properly statutes, not concerned exclusively with mere procedure or practice, and often annulling or modifying laws proceeding immediately from the sovereign legislature. But the law made by the parliaments through these arrêts, never acquired the name of equity; nor was it, I believe, distinguished from the rest of the legal system, by any appropriate denomination. And, in France, there certainly was no equity resembling the body of law which in England has gotten that name. There was no body of law styled ‘equity,’ and exclusively administered by extraordinary tribunals styled ‘Courts of Equity.’

The origin and history of the peculiar Courts in this country, styled Courts of Equity, has been given with great clearness by Blackstone, in probably the best chapter of his whole work. From the facts detailed by him, it is obvious that equity arose from the sulkiness and obstinacy of the Common Law Courts, which refused to suit themselves to the changes which took place in opinion and in the circumstances of society. If the Courts of Common Law had not refused to introduce certain rules of law or of procedure which were required by the exigencies of society, the equitable or extraordinary jurisdiction of the Chancellor would not have arisen, and the distinction between law and equity would never have been heard of. If, for instance, the Common Law Courts would have extorted evidence from the parties, plaintiffs would not have had recourse to the Chancellor, in cases in which they required the power of interrogating the defendant. If, again, the Common Law Court’s would have consented to enforce certain trusts, trusts as a subject of the jurisdiction of Courts of Equity would never have been heard of. There would indeed have been trusts, and suits in relation to trusts, these being involved in almost all law, but those particular classes of trusts which are enforced by Courts of Equity would never have been heard of, as distinguished from others. Enterprising judges of the Courts of Common Law have even, at comparatively recent periods, tried to get back the jurisdiction which their predecessors had not thought fit to exercise. Lord Mansfield, for example, made several such attempts; and was baffled. Even that stickler for antiquity, Lord Kenyon, in one instance successfully attempted the same thing: in the case of Read v. Brookman, when he took upon himself to dispense with the profert of a bond, and enable parties when unable to produce 616the bond to prove that it had existed and had been lost: which could formerly be done only in a Court of Equity. Whether it is desirable that judges should thus break through established rules, by piecemeal, for the sake of some small improvement is another question. I am myself inclined to the opinion that these attempts to alter the law in little bits, are productive of more mischief by thickening the general confusion, than of good by their direct operation. I only adverted to these facts because they strikingly illustrate the absurdity of the distinction between equity and law.

Not only is this verbal distinction peculiar to the Roman and to the English Law, but it means in each of those systems, something peculiar to those systems respectively.

From the historical sketch given in former Lectures, it has been seen how peculiar was the origin of the prætorian law. The history of the equitable jurisdiction of the English Chancellors may be found in Sir William Blackstone, and in a work of Chief Baron Gilbert.

I shall contrast the two systems, for the purpose of shewing how dissimilar they are, and of adding a few short remarks.

Differences between Roman and English Equity.

The first difference is, that the prætorian equity was administered by the ordinary civil tribunals; English equity, by an exceptional or extraordinary tribunal. The equity of the prætor resembles in this respect not the equity of the Chancellor, but rather the corrections made by the common-law tribunals to the statute law: whereas the English Courts of Equity not only innovate on the law made by the sovereign legislature, but on that made by the ordinary subordinate tribunals. To have resembled English equity, the equity of the Romans should have been administered, not by the prætor urbanus, but by an extraordinary prætor.

A second, and still more important, difference is, that the equity administered by the Roman prætors was statute law, or law promulged in an abstract or general form: whereas all or almost all Chancery law is not statute, but judiciary law.

The Chancellor, as Chancellor, or as properly exercising his extraordinary jurisdiction, makes and promulges, as far as I am aware, no general rules whatever, except rules of practice or procedure. In Bankruptcy indeed he occasionally establishes general rules; but he can scarcely be considered to judge Bankruptcy causes by virtue of his extraordinary jurisdiction in Chancery, but rather by a special jurisdiction under special Acts of Parliament.

617A third distinction between the equity of the Roman and that of the English law consists in this: that, as might have been expected, the subjects with which they are conversant are widely different.

It is impossible to compare the subjects in detail, since it would require volumes to enumerate them. I shall merely mention two or three remarkable cases to shew the extent of the dissimilarity.

The Prætors, by gradual innovations, altered the whole law on the important subject of succession ab intestato, by letting in cognates or relations in the female line, who were nearer of kin, in preference to agnates or relations in the male line, to whom sucession ab intestato was originally confined, the female line being entirely excluded. The law on this subject, as laid down in Justinian’s Code and Novels, is entirely copied from the prætorian equity; it formed no part of the old Roman Law or custom, but originated in the prætorian edicts, which have thus formed the foundation of the law obtaining on this great subject in England and throughout Europe.

Under the influence of similar good intentions the prætors gradually limited the power of testamentary bequest. By the twelve tables a testator was empowered to dispose of his property ab libitum.⁵⁵

The prætors afterwards took upon themselves to set. aside wills by which a father disinherited his children, under the pretext that an act so inofficious, and denoting so insane a forgetfulness of moral obligation, might be assumed to proceed from actual mental alienation. And this was the origin of the legitima portio of the Roman Law, the légitime of French Law.⁵⁶ 618For, first, when the children were entirely passed over, the testator was pronounced to be insane; and finally the same conclusion was drawn, if he did not leave to each a certain portion. And in time this determinate portion, which the testator was compelled to leave to each of his children, on pain of having the will set aside, came to be adopted by the sovereign legislature, and now obtains as law in probably every country in Europe except England.

That institution which Mr. M^cCulloch and others have imagined to be jacobinical and revolutionary, is, in fact, about 2100 years old. The Constituent Assembly in France did not establish the law, but only a little enlarged the légitime, and somewhat abridged the power of willing which existed under the ancient laws of France.

Thus completely to alter the law on the important subjects of succession and testamentary disposition, as was done by the Roman Prætors, is certainly monstrous. Our Courts of Equity have never meddled with either subject. The maxim, æquitas sequitur legem has in general been strictly adhered to.

Another striking distinction between the equity administered by the Roman Prætor and that administered by the English Chancellors is the following:—

One of the principal subjects of the jurisdiction of our Courts of Equity, is what are called technically trusts: not that trusts are peculiar to equity, since they are of the essence of all law whatever; but that there are certain trusts which are not enforced by the ordinary tribunals. In the Roman Law there were also what were called fideicommissa, equivalent to trusts; but these, it is remarkable that the tribunals and the prætors themselves would not enforce; they were first enforced by the Emperors. It was Augustus who gave to extraordinary Prætors, called prætores fideicommissarii, the power of enforcing trusts which had never been enforced by the ordinary prætors; and these trusts came in time to occupy as conspicuous a place in 619the Roman Law, as trusts occupy in our own. Thus, then, one of the chief subjects of the equity jurisdiction of the Chancellor was completely excluded from that of the Roman prætor.

The only resemblances between Roman and English equity are, in facts two. First, they both are unsystematic in their form, and were introduced by gradual innovations. Neither of them is a system of law. It is impossible to give any idea of either, in general or abstract expressions. In order to convey any notion of them, it is necessary to enter into the whole extent of the details. In order to explain to a foreigner the nature of English equity, it would be neeessary to enumerate all the cases in which the Chancellor had interposed to supply or correct the defects of the law administered by the Common Law Courts. The notion that there is any essential or necessary distinction is the merest absurdity.

The other resemblance is, that in both cases the party said to administer equity affects not to alter the other system, but to correct or supply its deficiencies. In ostent, or to appearance, the law which is superseded still continues to exist; so that there are two systems going at the same time, containing contrary provisions as to the same matter; one of them the shadow of a law which has been superseded but is feigned still to exist as law, the other the law which has superseded it.

Another erroneous notion frequently entertained concerning Equity, is, that it is the scope and function of Equity to supply the defects and correct the errors and iniquities of Law. This is a very prevalent notion, and seems to have been borrowed from a passage of Papinian, quoted in my last Lecture. This, however, is not a description of Equity as a species of Law, but of æquitas legislatoria, or good legislation, by whatever parties introduced. What is here represented as the peculiar object of Equity, is in truth the scope or purpose of all law. What else can be intended by making new law, than to cure the faults or supply the deficiencies of the old? And this is equally true, whether the law be made by one party or another. The above description of Equity is as applicable to the Common Law judges when they introduce new rules of law, as to the Chancellor. It is applicable equally to the legislative functions of Parliament. It is impossible to give any description of equity which shall mark out equitable legislation from any other good legislation.

Another very common error is to suppose that equity is not a body of laws or rules, but is moulded at the pleasure of the tribunals: that, in short, equity as meaning law, is equity as 620meaning the arbitriuim of the judge. This is an error of which, strange as it may appear, even English lawyers of considerable reputation have been guilty. I remember that Mr. John Williams, in Parliament, a few years ago, quoted as applicable to the Courts of Equity of the present day, a passage of Selden written 200 years ago, in which he describes Equity as being regulated by the Chancellor’s conscience, and compares such a mode of administering justice in point of certainty to the regulation of it by the length of the Chancellor’s foot.

This description is altogether inapplicable to the Chancellor’s jurisdiction at present, when he is as much bound by precedents. and has as little left to his discretion as any other of the judges. It is obvious, that a Court which does not follow any law or precedent, but decides arbitrarily in every cue, could not exist in any civilised community. For, by the uncertainty it would introduce, it would defeat all the ends of law, more than an army of robbers.

The first decision on each point must have been arbitrary, but not those which followed it. Yet this error is entertained by most foreign jurists who have written about English Equity; although the Germans, at least, are well acquainted with the Roman Law, and with the tralatitious edicts of the prætors; and it might have occurred to them that the same motives which induced the prætor to copy the edict of his predecessor, must naturally determine every Chancellor to abide by the decrees of former Chancellors.

[beginning of lecture 37]