第19章

Perhaps the first inquiry which occurs to an Englishman whoconsiders the peculiar mechanism of the Edict is, what were thelimitations by which these extensive powers of the Praetor wererestrained? How was authority so little definite reconciled witha settled condition of society and of law? The answer can only besupplied by careful observation of the conditions under which ourown English law is administered. The Praetor, it should berecollected, was a jurisconsult himself, or a person entirely inthe hands of advisers who were jurisconsults, and it is probablethat every Roman lawyer waited impatiently for the time when heshould fill or control the great judicial magistracy. In theinterval, his tastes, feelings, prejudices, and degree ofenlightenment were inevitably those of his own order, and thequalifications which he ultimately brought to office were thosewhich he had acquired in the practice and study of hisprofession. An English Chancellor goes through precisely the sametraining, and carries to the woolsack the same qualifications. Itis certain when he assumes office that he will have, to someextent, modified the law before he leaves it; but until he hasquitted his seat, and the series of his decisions in the LawReports has been completed, we cannot discover how far he haselucidated or added to the principles which his predecessorsbequeathed to him. The influence of the Praetor on Romanjurisprudence differed only in respect of the period at which itsamount was ascertained. As was before stated, he was in officebut for a year, and his decisions rendered during his year,though of course irreversible as regarded the litigants, were ofno ulterior value. The most natural moment for declaring thechanges he proposed to effect occurred therefore at his entranceon the praetorship, and hence, when commencing his duties, he didopenly and avowedly that which in the end his Englishrepresentative does insensibly and sometimes unconsciously. Thechecks on this apparent liberty are precisely those imposed on anEnglish judge. Theoretically there seems to be hardly any limitto the powers of either of them, but practically the RomanPraetor, no less than the English Chancellor, was kept within thenarrowest bounds by the prepossessions imbibed from earlytraining and by the strong restraints of professional opinion,restraints of which the stringency can only be appreciated bythose who have personally experienced them. It may be added thatthe lines within which movement is permitted, and beyond whichthere is to be no travelling, were chalked with as muchdistinctness in the one case as in the other. In England thejudge follows the analogies of reported decisions on insulatedgroups of facts. At Rome, as the intervention of the Praetor wasat first dictated by simple concern for the safety of the state,it is likely that in the earliest times it was proportioned tothe difficulty which it attempted to get rid of. Afterwards, whenthe taste for principle had been diffused by the Responses, he nodoubt used the Edict as the means of giving a wider applicationto those fundamental principles, which he and the otherpractising jurisconsults, his contemporaries, believed themselvesto have detected underlying the law. Latterly he acted whollyunder the influence of Greek philosophical theories, which atonce tempted him to advance and confined him to a particularcourse of progress.

The nature of the measures attributed to Salvius Julianus hasbeen much disputed. Whatever they were, their effects on theEdict are sufficiently plain. It ceased to be extended by annualadditions, and henceforward the equity jurisprudence of Rome wasdeveloped by the labours of a succession of great jurisconsultswho fill with their writings the interval between the reign ofHadrian and the reign of Alexander Severus. A fragment of thewonderful system which they built up survives in the Pandects ofJustinian, and supplies evidence that their works took the formof treatises on all parts of Roman Law, but chiefly that ofcommentaries on the Edict. Indeed, whatever be the immediatesubject of a jurisconsult of this epoch, he may always be calledan expositor of Equity. The principles of the Edict had, beforethe epoch of its cessation, made their way into every part ofRoman jurisprudence. The Equity of Rome, it should be understood,even when most distinct from the Civil Law, was alwaysadministered by the same tribunals. The Praetor was the chiefequity judge as well as the great common law magistrate, and assoon as the Edict had evolved an equitable rule the Praetor'scourt began to apply it in place of or by the side of the oldrule of the Civil Law, which was thus directly or indirectlyrepealed without any express enactment of the legislature. Theresult, of course, fell considerably short of a complete fusionof law and equity, which was not carried out till the reforms ofJustinian. The technical severance of the two elements ofjurisprudence entailed some confusion and some inconvenience, andthere were certain of the stubborner doctrines of the Civil Lawwith which neither the authors nor the expositors of the Edicthad ventured to interfere. But at the same time there was nocomer of the field of jurisprudence which was not more or lessswept over by the influence of Equity. It supplied the juristwith all his materials for generalisation, with all his methodsof interpretation, with his elucidations of first principles, andwith that great mass of limiting rules which are rarelyinterfered with by the legislator, but which seriously controlthe application of every legislative act.