法律辅导：AncientLawChapter3

Chapter 3. Law of Nature and Equity

The theory of a set of legal principles， entitled by their intrinsic superiority to supersede the older law， very early obtained currency both in the Roman state and in England. Such a body of principles， existing in any system， has in the foregoing chapters been denominated Equity， a term which， as will presently be seen， was one （though only one） of the designations by which this agent of legal change was known to the Roman jurisconsults. The jurisprudence of the Court of Chancery， which bears the name of Equity in England， could only be adequately discussed in a separate treatise. It is extremely complex in its texture and derives its materials from several heterogeneous sources. The early ecclesiastical chancellors contributed to it， from the Canon Law， many of the principles which lie deepest in its structure. The Roman law， more fertile than the Canon Law in rules applicable to secular disputes， was not seldom resorted to by a later generation of Chancery judges， amid whose recorded dicta we often find entire texts from the Corpus Juris Civilis imbedded， with their terms unaltered， though their origin is never acknowledged. Still more recently， and particularly at the middle and during the latter half of the eighteenth century， the mixed systems of jurisprudence and morals constructed by the publicists of the Low Countries appear to have been much studied by English lawyers， and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery. The system， which obtained its ingredients from these various quarters， was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law， but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority.

The Equity of Rome was a much simpler structure， and its development from its first appearance can be much more easily traced. Both its character and its history deserve attentive examination. It is the root of several conceptions which have exercised profound influence on human thought， and through human thought have seriously affected the destinies of mankind.

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 Praetor 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 （naturalis aequitas） 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 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 stigmatise 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 state. 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 consideration as accidental and transitory. The solemn gestures of the mancipation； 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 *@@@@， 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 strayed， 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 mankind. 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 conduct and a less tempestuous life. To live according to nature came to be considered as the end for which man was created， and which the best men were bound to compass. To live according to nature was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. It is notorious that this proposition —— live according to nature —— was the sum of the tenets of the famous Stoic philosophy. Now on the subjugation of Greece that philosophy made instantaneous progress in Roman society. It possessed natural fascinations for the powerful class who， in theory at least， adhered to the simple habits of the ancient Italian race， and disdained to surrender themselves to the innovations of foreign fashions. Such persons began immediately to affect the Stoic precepts of life according to nature —— an affectation all the more grateful， and， I may add， all the more noble， from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. In the front of the disciples of the new Greek school， we might be sure， even if we did not know it historically， that the Roman lawyers figured. We have abundant proof that， there being substantially but two professions in the Roman republic， the military men were generally identified with the party of movement， but the lawyers were universally at the head of the party of resistance.

The alliance of the lawyers with the Stoic philosophers lasted through many centuries. Some of the earliest names in the series of renowned jurisconsults are associated with Stoicism， and ultimately we have the golden age of Roman jurisprudence fixed by general consent at the era of the Antonine Caesars， the most famous disciples to whom that philosophy has given a rule of life. The long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. Several positions which we find in the remains of the Roman jurisconsults are scarcely intelligible， unless we use the Stoic tenets as our key； but at the same time it is a serious， though a very common， error to measure the influence of Stoicism on Roman law by counting up the number of legal rules which can be confidently affiliated on Stoical dogmas. It has often been observed that the strength of Stoicism resided not in its canons of conduct， which were often repulsive or ridiculous， but in the great though vague principle which it inculcated of resistance to passion. Just in the same way the influence on jurisprudence of the Greek theories， which had their most distinct expression in Stoicism， consisted not in the number of specific positions which they contributed to Roman law， but in the single fundamental assumption which they lent to it. After nature had become a household word in the mouths of the Romans， the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the lost code of Nature， and that the Praetor in framing an Edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had only departed to deteriorate. The inference from this belief was immediate， that it was the Praetor's duty to supersede the Civil Law as much as possible by the Edict， to revive as far as might be the institutions by which Nature had governed man in the primitive state. Of course， there were many impediments to the amelioration of law by this agency. There may have been prejudices to overcome even in the legal profession itself， and Roman habits were far too tenacious to give way at once to mere philosophical theory. The indirect methods by which the Edict combated certain technical anomalies， show the caution which its authors were compelled to observe， and down to the very days of Justinian there was some part of the old law which had obstinately resisted its influence. But， on the whole， the progress of the Romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of Natural Law. The ideas of simplification and generalisation had always been associated with the conception of Nature； simplicity， symmetry， and intelligibility came therefore to be regarded as the characteristics of a good legal 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 effected.

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 AEquitas， 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 AEquitas is the equivalent of the Greek @@@@@@， 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