Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/231

 7. SCRUTTON: ROMAN LAW INFLUENCE 217 supplied the inadequacies of his laws. The systems admit of comparison, but there is no trace of causal connexion. It is true that the Praetor framed the formula, and the Chancellor and Clerks of the Chancery issued the writs. But the Praetor administered both his own edict and the Jus Civile, and could thus enforce his own innovations, while the Common law judges could and did reject new writs, which seemed to them not in accordance with the Common law. And further, while the Praetor by embodying exceptiones in his Formula could influence the defence to actions, the Chancellor had no control over the defences raised in the Common Law Courts to the writs he issued. The tribunals were separate; the judges different. The influence of the Chancery on the Common law was therefore far slower in operation and weaker than the Praetorian changes in the Jus Civile; while the clerical char- acter of the Chancery, and its innovations on the Common law, raised a spirit of hostility which hindered its influence. English Equity however, invented and administered by Cler- ical Chancellors, derived much of its form and matter from Roman sources. I have neither the time nor the knowledge to enable me to give at all an adequate account of this Roman element, but the question has been discussed by Spence, ^ and I avail myself of his results. Sir 11. Maine,^ without going at length into the subject, thinks that the earlier Chancery judges followed the Canon law, a later generation the Civil law, and that the Chancellors of the eighteenth century availed themselves largely of the Romano-Dutch Treatises on ethics and jurisprudence, compiled by the publicists of the Low Countries. One of the most important branches of Equitable Juris- diction related to Uses and Trusts.^ Fideicommissa had been introduced by the Romans to evade the strict rules as to legacies and successions : the person, to whose good faith the fulfilment of the testator's wishes was entrusted, was at first only bound in honour. Augustus took the first steps towards enforcing trusts by law, and finally created a Praetor Fidei-
 * Equitable Jurisdiction of Court of Chancery, Vol. i.
 * Ancient Law, p. 44, 45.
 * Spence, i. 435-517.