第13章

Law of Nature and Equity

The theory of a set of legal principles, entitled by theirintrinsic superiority to supersede the older law, very earlyobtained currency both in the Roman state and in England. Such abody of principles, existing in any system, has in the foregoingchapters been denominated Equity, a term which, as will presentlybe seen, was one (though only one) of the designations by whichthis agent of legal change was known to the Roman jurisconsults.

The jurisprudence of the Court of Chancery, which bears the nameof Equity in England, could only be adequately discussed in aseparate treatise. It is extremely complex in its texture andderives its materials from several heterogeneous sources. Theearly ecclesiastical chancellors contributed to it, from theCanon Law, many of the principles which lie deepest in itsstructure. The Roman law, more fertile than the Canon Law inrules applicable to secular disputes, was not seldom resorted toby a later generation of Chancery judges, amid whose recordeddicta we often find entire texts from the Corpus Juris Civilisimbedded, with their terms unaltered, though their origin isnever acknowledged. Still more recently, and particularly at themiddle and during the latter half of the eighteenth century, themixed systems of jurisprudence and morals constructed by thepublicists of the Low Countries appear to have been much studiedby English lawyers, and from the chancellorship of Lord Talbot tothe commencement of Lord Eldon's chancellorship these works hadconsiderable effect on the rulings of the Court of Chancery. Thesystem, which obtained its ingredients from these variousquarters, was greatly controlled in its growth by the necessityimposed on it of conforming itself to the analogies of the commonlaw, but it has always answered the description of a body ofcomparatively novel legal principles claiming to override theolder jurisprudence of the country on the strength of anintrinsic ethical superiority.

The Equity of Rome was a much simpler structure, and itsdevelopment from its first appearance can be much more easilytraced. Both its character and its history deserve attentiveexamination. It is the root of several conceptions which haveexercised profound influence on human thought, and through humanthought have seriously affected the destinies of mankind.

The Romans described their legal system as consisting of twoingredients. "All nations," says the Institutional Treatisepublished under the authority of the Emperor Justinian, "who areruled by laws and customs, are governed partly by their ownparticular laws, and partly by those laws which are common to allmankind. The law which a people enacts is called the Civil Law ofthat people, but that which natural reason appoints for allmankind is called the Law of Nations, because all nations useit." The part of the law "which natural reason appoints for allmankind" was the element which the Edict of the Praetor wassupposed to have worked into Roman jurisprudence. Elsewhere it isstyled more simply Jus Naturale, or the Law of Nature; and itsordinances are said to be dictated by Natural Equity (naturalisaequitas) as well as by natural reason. I shall attempt todiscover the origin of these famous phrases, Law of Nations, Lawof Nature, Equity, and to determine how the conceptions whichthey indicate are related to one another.