Government 1b - Case Study

In order to familiarize students in the course with a satisfactory technique of case analysis, a sample brief is presented below. All students are urged to prepare similar briefs of cases assigned for reading. Every brief should contain the following elements:

## Identification of Case

1. Name of Case

2. Citation (in Supreme Court Reports)

3. Date Decided

## Analysis of Case

4. Character of the Action

5. Facts of Case

6. Issues (and answers given)

7. Decision of the Court

8. Opinion or Reasons for the Decision

9. Disenting or Concurring Opinions

10. Comments

In the brief below each of these elements is indicated by the numerals above.

(1) MCCULLOCH v MARYLAND (2) 4 Wheaton 316 (3) 1819

(4) From decision against him in Court of Appeals of state of Maryland McCulloch appealed on writ of error to United States Supreme Court under section 25, Judiciary Act of 1789.

## (5) Facts

Congress in 1816 passed act incorporating the Second Bank of the U.S. Maryland in 1818 passed an act taxing all banks or branches not chartered by the state at prohibitory rates. Tax was on all notes issued by such banks or in lieu thereof a flat tax of $15,000 per year, with $500 penalty for each violation. McCulloch, cashier of Maryland branch of the Bank of the United States, issued notes and refused to pay the tax. Maryland brought suit against him to recover the penalties and obtained decision against McCulloch.

## (6) Issues

(1) Has Congress power to incorporate the Bank of the United States? Yes.

(2) Has Maryland the right to levy this tax against the bank chartered by Congress? No.

## (7) Decision

Judgment of Court of Appeals of Maryland is reversed and annulled.

## (8) Opinion

Marshall, C.J.: Has Congress power to charter bank? Constitution is not a mere compact of sovereign states, but establishes a supreme national government. Admittedly Congress is not expressly given power to issue charters of incorporation. But 10th amendment does not limit Congress' powers to those expressly granted.

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Congress expressly granted power to lay and collect taxes, borrow money, regulate commerce, declare war, raise and support armies. Congress must have means to accomplish these ends. Power of issuing charters of incorporation only an incidental power. Congress expressly given power "to make all laws necessary and proper for carrying foregoing powers into execution." This a grant of power, not a restriction. "Necessary and proper" does not limit Congress to those means which are indispensable but entitles it to use all those which are convenient and appropriate. Charter of bank is appropriate.

Can Maryland lay tax against the bank? Bank an instrument of the national government, which having power to create it also has power to preserve it. But state power to tax involves power to destroy it. National constitution and laws supreme and state laws repugnant thereto are void. No argument to say we should assume Maryland will not use tax power to destroy. Therefore tax is unconstitutional.

(9) No dissenting or concurring opinions.

(10) This opinion stems from Hamilton's opinion on constitutionality of the First Bank of the United States; cf., also Jefferson's opinion. It is the classic statement of the doctrines of implied powers of the national government, national supremacy over the states, and function of the court as umpire of the federal system. Cf., The Virginia and Kentucky Resolutions. Its influence on later statesmen like Webster and Lincoln is incalculable.

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Issues of a case should always be stated as questions that can be answered by "yes" or "no". Unless you can do this, you do not understand the case. Issues should be stated only to cover what was actually decided, in other words, narrowly. But the reader should always consider whether the opinion implies a broader issue. In the first question above, for example, the issue might be stated, in order of breadth:

(1) Has Congress power to charter *this* bank?

(2) Has Congress power to charter *banks* *generally*?

(3) Has Congress power to issue charters to *any* kind of corporation useful in carrying out its expressed powers?

(4) Has Congress power to use *any* means that is useful and not prohibited in carrying out its expressed powers (not merely charters of incorporation)?

In summarizing the opinion outline the main points, or subsidiary questions, in the argument that are used in reaching the answer the court gives to each issue. Your summary may be very concise or quite detailed. This is a matter for individual choice, and will also vary with the importance of the case. But in general, a brief should be brief.

The comments section should be used for your own criticism of points in the opinion, or to note the relation of the case to other cases or to broad political or economic conditions, etc.

Anyone who masters this technique of case analysis will find that he has acquired a method that can be applied very broadly in analyzing materials in other fields of the social sciences. To understand and state clearly what is *fact* and what is a question in dispute, and to test the logic used to reach an answer to a question is the essence of successful case study.

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opened the gate to the growing plebeian demand for effective political equality with the patricians. In fact the social and political history of Rome in the first two centuries of the Republic is the story of the social emancipation of the plebeians and the struggle for political control with the patricians.

## The Executive:

Executive leadership becomes now dual and elective. In the place of the king we have two Consuls with at once military and civil powers. The assembly of all Roman citizens able to bear arms elected the consuls. In the course of the fifth century B.C. the plebeians pressed for political power and after threatening to withdraw from Rome were given the privilege (494 B.C.) of electing their own officials (tribunes). The tribunes eventually assumed the power of blocking or vetoing any legislation. Furthermore in 357 (B.C.) it was provided by law that one of the consuls should be a plebeian which indicates that by this time the plebeians were on an equal footing with the patricians.

## Social equality:

Full social equality was granted in 442 (B.C.) with a law allowing inter-marriage between patricians and plebeians.

## The Legislative:

As we have seen Servius Tullius gave to the plebeians political rights. However it appears that they were outvoted in the popular assembly (comitia centurista). A new assembly of a purely plebeian origin and composition, the concilium plebis, was recognized. Its decrees were considered to have the effect of law as those of the comitia centurista, thus enabling the plebeians to attain equality with the patricians in the legislative.

### c. The Roman Senate and the Fiction of the Republic.

With the plebeians controlling both the legislative and the executive it appeared that Roman institutions were developing along lines tending towards the formation of a democracy of the Athenian type. The analogy and the similarity however, is true only in form. It is true that the consuls and the tribunes were elected by the popular assemblies and were responsible to them; that the law-making authority resided exclusively with those assemblies and that the powers of the magistrates were circumscribed by law. Yet, instead of a consolidation of the institutions of popular government we witness a development towards a strong oligarchic government which eventually led to the Principate and later to the Empire.

## The Senate:

The Senate had consultative functions during the Royal period as well as during the first two centuries of the Republic. Slowly, thanks to its stability and the acquisition of new functions, its powers increased in the period of the Republic until it emerged as the most powerful organ of the state. This change was due primarily to (a) its method of recruitment (b) the usurpation of new functions. Recruitment: Members of the Senate were selected by public magistrates

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(the censors) from a panel on which the names of all citizens - plebeians or patricians - who had held executive offices, appeared. It became therefore an indirectly elected body representing in essence the Roman civil servants; an experienced body of men, with expert knowledge of public business and a remarkable esprit de corps.

## Functions:

After the Second Punic War the Senate was consulted by the magistrates (consuls, tribunes and praetores) on every matter involving policy-making decision. It could authorize expenditure and determine the revenue of the State. It controlled military expenditure, foreign policy, supervised diplomatic negotiations and ratified treaties. "Probably no body of men" writes W. Warde Fowler "has sat together for consultation so richly endowed...with the highest possible qualities of statesmanship...to these men office meant really work, and work meant distinction and honor; all had served the state from their youth and most of them had learnt how to serve it from their fathers". AV. W. Fowler, The City State of the Greeks and the Romans p. 238-37. Despite these eloquent words of praise it should be remembered that it was through the complicity of the Senate that the last vestiges of republican government were set aside. The excellence of a mixed constitution, so well described by Polybius, presupposes a virtue of self-denial which the Roman Senate in the last century of the Republic failed to show.

## d. Development of law.

During the period of the Republic there are two important landmarks in the development of Roman law: (a) the codification of the ancient customs into the Twelve Tables; (b) the subsequent adaptation of law to the social developments of the period.

## The Twelve Tables:

They were promulgated in 451-450 B.C. The greatest part of the codification dealt with private law, criminal law and civil procedure - the manner and forms through which rights can be protected or enforced. The procedure established was similar to the greater number of ancient codes - it was oral, formal and ceremonial. In its formalism and symbolism it was closely associated with religion. Certain words and gestures were given a definite meaning, while the slightest deviation from the prescribed form rendered a transaction invalid.

Such a procedure was extremely cumbersome. For the transfer of real property for example, both parties and the judge had to be present on the premises of the property involved. For the transfer of movable objects the parties had to appear in person before the judge with the object to be transferred.

The law of the Twelve Tables appears to have been applicable only to Roman citizens or to property situated within the boundaries of the Roman city. Together with the ancient customs and the law of the Republican period the Twelve Tables constitute what Henry Maine calls the civil law or strict law as contrasted with the jus gentium - the pretorian law or equity.

## The praetor:

It became the duty of the judicial magistrate (praetor) to apply the strict law to concrete cases involving the loss, protection, or enforcement of substantive

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individual rights. In doing so he slowly assumed wide interpretative powers which were virtually of a law-making character. In fact according to the Roman commen-tators he could "supplement, complete and correct" the civil law. The instruments which the praetor used in order to modify the strict law and apply it to the exigencies of developing economic conditions were three: the fiction, the formula and the edict.

## Fiction:

A fiction was a device by which the praetor kept the spirit of the law in contact with reality without changing the letter of the law. What he did was to "change" reality by attributing to certain objects certain qualities which they did not possess. For example a handful of soil would be considered to be "a farm"; a slave, who in the eyes of the law was a "thing", was allowed to transact business for his master thus allowing for the principle of delegation so common to modern law, but unknown to strict Roman law. Jeremy Bentham claimed that a fiction is a falsehood invented by lawyers, but it appears that the praetor's fiction was a convenient instrument for the purpose of modifying the law for the benefit of the common tradesman and farmer.

## The Formula:

The strict procedure established by the Twelve Tables hampered trade and rapid commercial relations and subordinated the application of justice to formal requirements which, with the passage of time, lost even their religious meaning. Some time during the period of the Republic the praetor was allowed to set aside the procedure of the strict law by granting a formula to the parties involved in a litigation. The new procedure was extremely simple. The litigants would choose an arbitrator or a judge (*judex*) whose authority and jurisdiction was defined by the formula given to him by the praetor. The formula, for example, would read as follows: "Let N be the judge (*judex*). Whereas A has sold a slave to B if it appears that E ought to pay a ten thousand sesterces, condemn B, judge, to pay the ten sesterces to A. If it doesn't so appear, acquit him" (quoted by Sait op. cit. p. 190.) Through the use of the formula, the praetor was able to bring the law to apply to specific cases with consideration only of the conditions involved in the case and without any consideration to the requirements of the Twelve Tables.

## The Edict:

Every praetor issued, at the beginning of his annual term of office, a general circular, (*edict*) as we would say today, in which he specified the conditions and forms under which he would apply the strict law. Every new praetor reproduced the edict of his predecessor. Thus as Edward Sait writes "...the edict grew, by insensible degrees through the centuries. The change made by one praetor during his year of office was inconsiderable. In many cases a new rule was introduced only when some notorious incident had predisposed opinion, and especially the conservative opinion of jurists, in its favor. The evolution of law by means of the edict was characterized by gradualness and empiricism." To modify and supplement the strict law, the praetor drew not only from the law of the neighboring cities but also from general precepts of justice and equity. It was the necessity of applying a common law to a variety of racial and ethnic groups under Roman rule as well as the influence of the principles of stoic philosophy which gave to Roman law an unprecedented elasticity and universality that made it the strongest fabric of the empire.

### III. The Period of the Principate and the Empire

(30 B.C. to 500 A.D.)

Both the Principate and the Empire are characterized by the growing power of a monarchical executive and the overshadowing of all popular or elective institutions and offices. During the period of the principate roughly extending from Augustus to the Antoines the government and sovereign authority in the Empire are divided between the Prince (Emperor) and the Senate. The old popular assemblies (comitiae or centuria) for all practical purposes disappeared. At least they lost completely their judicial, elective and legislative functions. The Senate retained a number of judicial functions, administered the "senatorial provinces" as distinguished from the "imperial provinces" and continued to have jurisdiction over the public revenue. The Prince on the other hand concentrated in his own hands all the functions heretofore divided among a number of elected magistrates. He was the head of the Army, the supreme judge and executive. Through the fiction of popular delegation of legislative powers to him, he became soon the sole legislator, and he was always careful to justify his law-making authority on that basis. In the later part of the second century the last vestiges of Senatorial control disappeared. The Senate lost the administration of the provinces and the control over public revenue and the Emperor became absolute in every sense of the word. "Whatever is pleasing to the Prince has the force of law" is a Roman legal maxim (c.200 A.D.) that describes admirably the absolutist character of the later Empire.

#### Sources of law

**Custom**: The old customary law remained theoretically in force but had been effectively superseded by laws made by the popular assemblies of the Republican period or by the praetorian edicts.

**Law (Lex)**: Lex, in a technical sense, was the law voted by the popular assemblies (comitiae or centuria). Given however the effacement of the popular assemblies during the period of the principate and the empire, this type of legislation became extremely rare after Augustus (14 A.D.).

**Praetorian Edict**: The praetor continued to issue his annual edict defining the terms and conditions of the applicability of the provisions of civil law. However, he lost his independence and initiative since his term of office depended on the will of the Prince. He was satisfied to reproduce the edict (edictum translaticium) of his predecessors and as a result the praetorian influence upon law diminished. Praetorian law became rigid and old and was codified (Edictum Perpetium) under Hedrian (about 130 A.D.).

**Senatus-Consulta**: We have seen that the Senate slowly encroached during the period of the Republic upon the legislative functions of the popular assemblies. During the period of the principate it shared with the Prince the legislative functions. As the word Senatus-Consulta indicates, the Senate retained the fiction of being a consultative body. The Prince proposed (oratio) a law and the Senate gave its opinion, Senatus consulta, which was recognized as law. Gradually, however, this generous fiction was turned against the Senate. The Prince took it for granted in the period of the Empire that the Senate would give its consent to his proposal and the oratio replaced the Senatus consulta. Senatorial participation in legislation had ceased by the beginning of the third century A.D.

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**Imperial Constitutions:** These were executive ordinances with force of law issued by the Prince. During the latter part of the Principate and the whole period of the Empire they constitute the regular means of law-making and their validity was based on the fact that they emanated from the will of the Prince to whom the people had delegated their power. It is interesting to note that whereas the British retained the fiction of Monarchy as they evolved a representative system of government, the Roman lawyers never abandoned the fiction of popular delegation (lex legia) to justify one of the most centralized forms of absolutism ever evolved.

**Response Prudentium:** Literally "responsa prudentium" means the answer of prudent men. In practice it meant that a number of eminent jurists were given by the Emperor authority to make authoritative pronouncements on the law and give authoritative interpretation of the law. The answers of such eminent jurisconsults to private persons or judges and sometimes the opinions they expressed in their written works could outweigh all previous legal enactments and become in part a source of law.

By the beginning of the Empire the state of Roman law appears to have been extremely confused and complex. Side by side with the Republican leges, we have the praetorian edicts, the senatus consulta, the imperial constitutions and the responsa prudentium. The need of some kind of systematization and codification of the law was imperative. Ever since the third century A.D. certain categories of private law had been codified but it is the final and most systematic codification undertaken in the 6th century A.D. under the direction of Emperor Justinian that deserves particular mention. It was through his codification that Roman law survived and remains still one of the most important "operative ideals", in A.D. Lindsay's phrase, of our Western civilization.

**The Justinian Code:** (530-565 A.D.) The Code was divided in three parts and represented a most thorough compilation of the existing laws in force as well as of the opinion and works of the most eminent Roman Jurists. The first part, the Code, was a systematic compilation under various categories of the positive law then in force (custom, lex, senatus consulta, praetorian edicts, constitutions and responsa prudentium). The second part, the Digesta (or Pandectes) was a compilation, again under various categories, of the opinions of the most eminent jurists (responsa prudentium) with citations of laws (leges) and decrees of the Senate (senatus consulta). The third part, the Institutes, was a general introductory to the study of law, embodying the general principles of Roman law. The codification is known as the Corpus Juris Civilis.

From "Ancient Law" by Sir H. J. S. Maine

## CHAPTER III

### LAW OF NATURE AND EQUITY

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 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 Prætor 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 (naturalisæ quitas) 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 conceptions 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 considerable 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 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 circumstances 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 themselves to be united by kinship in blood, and resented a claim to equality of privilege as a usurpation 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 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

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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 eminently
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 degradation, 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 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 different commonwealths surrounding Rome, the actual
transfer, tradition, or delivery of the article intended 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 conveyance 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
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 precedence to the element which we had thus discerned 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 stigmatisate
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 had 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 primitive states. 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

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consideration as accidental and transitory; the solemn gestures of the manipulation; the nicely adjusted questions and answers of the verbal contract; the endless 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 attempt to discriminate them was made by the jurisconsult Ulpian, with the propensity to distinguish characteristic of a lawyer, but the language 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 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 diplomacy. It is, however, unquestionable that indistinct 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 φύσις, 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 language. Nature signified the physical world regarded 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, force, 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 stroied, 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 man-kind. Still, as before, it was 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 supposed 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

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system, and the taste for involved language, multiplied ceremonials, and useless
difficulties disappeared altogether. 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 affected.

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 Æquitas, 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 conception. It
has generally been supposed that Æquitas is the equivalent of the Greek ἀρχὴν,
i.e. the principle of equal or proportionate distribution. The equal division of
numbers or physical magnitudes is doubtless closely entwined with our perceptions
of justice; there are few associations which keep their ground in the mind so
stubbornly or are dismissed from it with such difficulty by the deepest thinkers.
Yet in tracing the history of this association, it certainly does not seem to have
suggested itself to very early thought, but is rather the offspring of a comparatively
late philosophy. It is remarkable too that the "equality" of laws on which the
Greek democracies prided themselves--that equality which, in the beautiful drinking
song of Callistratus, Harmodius and Aristogition are said to have given to Athens--
had little in common with the "equity" of the Romans. The first was an equal
administration of civil laws among the citizens, however limited the class of citizens
might be; the last implied the applicability of a law, which was not civil law, to
a class which did not necessarily consist of citizens. The first excluded a despot;
the last included foreigners, and for some purposes slaves. On the whole, I should
be disposed to look in another direction for the germ of the Roman "Equity." The
Latin word "æquus" carries with it more distinctly than the Greek "αἰσθή" the sense
of levelling. Now its levelling tendency was exactly the characteristic of the Jus
Gentium, which would be most striking to a primitive Roman. The pure Quiritarian
law recognised a multitude of arbitrary distinctions between classes of men and kinds
of property; the Jus Gentium, generalised from a comparison of various customs,
neglected the Quiritarian divisions. The old Roman law established, for example, a
fundamental difference between "Agnatic" and "Cognatic" relationship, that is,
between the Family considered as based upon common subjection to patriarchal authority
and the Family considered (in conformity with modern ideas) as united through the
mere fact of a common descent. This distinction disappears in the "law common to all
nations," as also does the difference between the archaic forms of property, Things
"Mancipi" and Things "nec Mancipi." The neglect of demarcations and boundaries
seems to me, therefore, the feature of the Jus Gentium which was depicted in Æquitas.
I imagine that the word was at first a mere description of that constant levelling or
removal of irregularities which went on wherever the prætorian system was applied to
the cases of foreign litigants. Probably no colour of ethical meaning belonged at
first to the expression; nor is there any reason to believe that the process which it
indicated was otherwise than extremely distasteful to the primitive Roman mind.

On the other hand, the feature of the Jus Gentium which was presented to the
apprehension of a Roman by the word Equity, was exactly the first and most vividly
realised characteristic of the hypothetical state of nature. Nature implied
symmetrical order, first in the physical world, and next in the moral, and the earliest
notion of order doubtless involved straight lines, even surfaces, and measured distances.
The same sort of picture or figure would be unconsciously before the mind's eye,
whether it strove to form the outlines of the supposed natural state, or whether it
took in at a glance the actual administration of the "law common to all nations"; and
all we know of primitive thought would lead us to conclude that this ideal similarity

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would do much to encourage the belief in an identity of the two conceptions. But then, while the Jus Gentium had little or no antecedent credit at Rome, the theory of a Law of Nature came in surrounded with all the prestige of philosophical authority, and invested with the charms of association with an elder and more blissful condition of the race. It is easy to 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 Æquitas was understood to convey an allusion to the Greek theory, associations which grew out of the Greek notion of ὀσοπίδαις begen to cluster round it. The language of Cicero renders it more than likely that this was so, and it was the first stage of a transmutation of the conception of Equity, which almost every ethical system which has appeared since those days has more or less helped to carry on.

Something must be said of the formal instrumentality by which the principles and distinctions associated, first with the Law common to all Nations, and afterwards with the Law of Nature, were gradually incorporated with the Roman law. At the crisis of primitive Roman history which is marked by the expulsion of the Tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had little in common with those passages of political affairs which we now term revolutions. It may best be described by saying that the monarchy was put into commission. The powers heretofore accumulated in the hands of a single person were parcelled out among a number of elective functionaries, the very name of the kingly office being retained and imposed on a personage known subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the change, the settled duties of the supreme judicial office devolved on the Prætor, at the time the first functionary in the commonwealth, and together with those duties was transferred the undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not obscurely related to the patriarchal and heroic authority they had once enjoyed. The circumstances of Rome gave great importance to the more indefinite portion of the functions thus transferred, as with the establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who, not coming within the technical description of indigenous Romans, were nevertheless permanently located within Roman jurisdiction. Controversies between such persons, or between such persons and native-born citizens, would have remained without the pale of the remedies provided by Roman law, if the Prætor 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 Prætor, known subsequently as the Prætor Peregrinus, who gave them his undivided attention. Meantime, one precaution of the Roman people against the revival of oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an Edict or proclamation, in which he declared the manner in which he intended to administer his department. The Prætor 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 Prætor'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 Prætor embraced therefore the whole body of equity

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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 Prætor were restrained? How was authority so little definite reconciled with a settled condition of society and of law? The answer can only be supplied by careful observation of the conditions under which our own English law is administered. The Prætor, it should be recollected, was a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every Roman lawyer waited impatiently for the time when he should fill or control the great judicial magistracy. In the interval, his tastes feelings, prejudices, and degree of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought to office were those which he had acquired in the practice and study of his profession. An English Chancellor goes through precisely the same training, and carries to the woolsack the same qualifications. It is certain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted his seat, and the series of his decisions in the Law Reports has been completed, we cannot discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. The influence of the Prætor 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 prætorship, and hence, when commencing his duties, he did openly and avowedly that which in the end his English representative does insensibly and sometimes unconsciously. The checks on this apparent liberty are precisely those imposed on an English judge. Theoretically there seems to be hardly any limit to the powers of either of them, but practically the Roman Prætor, no less than the English Chancellor, was kept within the narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of professional opinion, restraints of which the stringency can only be appreciated by those who have personally experienced them. It may be added that the lines within which movement is permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the one case as in the other. In England the judge follows the analogies of reported decisions on insulated groups of facts. At Rome, as the intervention of the Prætor was at first dictated by simple concern for the safety of the state, it is likely that in the earliest times it was proportioned to the difficulty which it attempted to get rid of. Afterwards, when the taste for principle had been diffused by the Responses, he no doubt used the Edict as the means of giving a wider application to those fundamental principles, which he and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. Latterly he acted wholly under the influence of Greek philosophical theories, which at once tempted him to advance and confined him to a particular course of progress.

The nature of the measures attributed to Salvius Julianus has been much disputed. Whatever they were, their effects on the Edict are sufficiently plain. It ceased to be extended by annual additions, and henceforward the equity jurisprudence of Rome was developed by the labours of a succession of great jurisconsults who fill with their writings the interval between the reign of Hadrian and the reign of Alexander Severus. A fragment of the wonderful system which they built up survives in the

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Pandects of Justinian, and supplies evidence that their works took the form of treatises on all parts of Roman Law, but chiefly that of commentaries on the Edict. Indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an expositor of Equity. The principles of the Edict had, before the epoch of its cessation, made their way into every part of Roman jurisprudence. The Equity of Rome, it should be understood, even when most distinct from the Civil Law, was always administered by the same tribunals. The Prætor 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 Prætor's court began to apply it in place of or by the side of the old rule of the Civil Law, which was thus directly or indirectly repealed without any express enactment of the legislature. The result, of course, fell considerably short of a complete fusion of law and equity, which was not carried out till the reforms of Justinian. The technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience, and there were certain of the stubborner doctrines of the Civil Law with which neither the authors nor the expositors of the Edict had ventured to interfere. But at the same time there was no corner of the field of jurisprudence which was not more or less swept over by the influence of Equity. It supplied the jurist with all his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles, and with that great mass of limiting rules which are rarely interfered with by the legislator, but which seriously control the application of every legislative act.

The period of jurists ends with Alexander Severus. From Hedrian to that emperor the improvement of law was carried on, as it is at the present moment in most continental countries, partly by approved commentaries and partly by direct legislation. But in the reign of Alexander Severus the power of growth in Roman Equity seems to be exhausted, and the succession of jurisconsults comes to a close. The remaining history of the Roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now become the unwieldy body of Roman jurisprudence. We have the latest and most celebrated experiment of this kind in the Corpus Juris of Justinian.

It would be wearisome to enter on a detailed comparison or contrast of English and Roman Equity, but it may be worth while to mention two features which they have in common. The first may be stated as follows. Each of them tended, and all such systems tend, to exactly the same state in which the old common law was when Equity first interfered with it. A time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpensive, 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

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the ethical creed of our own day, they are not necessarily on a level with it. The imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. Many writers of treatises on Equity, struck with the completeness of the system in its present state, commit themselves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form when they were settling its first bases. Others, again, complain--and this is a grievance frequently observed upon in forensic arguments--that the moral rules enforced by the Court of Chancery fall short of the ethical standard of the present day. They would have each Lord Chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which was performed for the old common law by the fathers of English equity. But this is to invert the order of the agencies by which the improvement of the law is carried on. Equity has its place and its time; but I have pointed out that another instrumentality is ready to succeed it when its energies are spent.

Another remarkable characteristic of both English and Roman Equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. Nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. This unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. This tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Roman jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account for the improvement of their jurisprudence by the Prætor, borrowed from Greece the doctrine of a Natural state of man--a Natural society--anterior to the organisation of commonwealths governed by positive laws. In England, on the other hand, a range of ideas especially congenial to Englishmen of that day, explained the claim of Equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. The same view appears in a different and a quanter form in the old doctrine that Equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. The growth of the English constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the Chancery was then firmly established, it was not worth while to devise any formal substitute 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 tenour by those writers who begin a discussion of the Jurisdiction of the Court of Chancery by laying down a distinction between natural justice and civil.

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Another remarkable characteristic of both English and Roman Equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. Nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. This unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. This tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Roman jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account for the improvement of their jurisprudence by the Prætor, borrowed from Greece the doctrine of a Natural state of man--a Natural society--anterior to the organisation of commonwealths governed by positive laws. In England, on the other hand, a range of ideas especially congenial to Englishmen of that day, explained the claim of Equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. The same view appears in a different and a quaintier form in the old doctrine that Equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. The growth of the English constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the Chancery was then firmly established, it was not worth while to devise any formal substitute 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 tenour by those writers who begin a discussion of the Jurisdiction of the Court of Chancery by laying down a distinction between natural justice and civil.