Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/237

 7. SCRUTTON: ROMAN LAW INFLUENCE 223 praecise cogi ad factum." ^ Spence considers the jurisdiction a " clerical invention " and Fry doubts whether to attribute it to the Canon law, which said " Studiose agendum est ut ea quae promittuntur opere compleantur," ^ or to " the plain principles of morality and common sense of the Judges who founded and enlarged the equitable jurisdiction." Besides the chief heads of its jurisdiction, the leading prin- ciples on which the Chancery administers justice show traces of clerical and Roman influence. The term " Conscience," ^ which is so involved in the decisions of the Court, though itself of clerical invention, is like the Praetorian notion of bona fides; but as to mala fides the English law has departed from the Roman principle, lata culpa plane dolo comparabitur, by holding that, " Gross negligence may be evidence of mala fides, but it is not the same thing." * The j urisdiction of the Chancery, in fraud, to cancel and deliver up deeds is anal- ogous to the Praetorian restitutio in integrum, and actio de dolo. ^ Both Praetor and Chancellor had a power to relieve against Accident, grounded in the Roman law on naturalis justitia. ^ So the jurisdiction to relieve against Mistabe, and the distinction between mistake of law, and of fact, both in the Common law and Chancery, appear of Roman origin ; though under Edward IV. the Roman maxim, " nee stultis solere succurri sed errantibus," was met by a clerical Chan- cellor with " Deus est procurator fatuorum," "* and the " fool " was relieved. The iujiuifitiiius of the Chancery are comparable to Praetorian Interdicts ; ^ its jurisdiction in dis- covery to the actio ad exhibendum, and possibly to the early and obsolete actio interrogatoria. ^ The procedure for per- petuating evidence by examining witnesses de b^ne esse had also a parallel in Roman procedure.^ "^ »Decret. Greg. IX. i. 35, 3. Hare, 71. Spence, i. 425 note. » Spence, i. 622. • Ibid. i. 628. Dig. 27, 1, 13, 7. ^ Dig. 22, 6, 9. Gary's Rep. (ed. 1650), p. 17. Spence, i. 632, 637. Both editions of Gary that I have seen have the odd reading est 'procurator futurus. ^^ Dig. ix. 2, 40. Spence, i. 681,
 * Pothier, Des obligations, i. 2, 2, 2.
 * Spence, i. 411. cf. aequitas sequitur legem.
 * Ld. Denman in Goodman v. Harvey, 4 Ad. & E. 876. See also 1
 * Spence, i. 669. » Spence, i. 228, 678.