Page:The Green Bag (1889–1914), Volume 17.pdf/591

 THE GREEN BAG such judge-made law is in England far more extensive than a student easily realizes. Nine-tenths at least, of the law of contract, and the whole, or nearly the whole, of the law of torts are not to be discovered in any volume of the statutes." (Law and Opinion in England, pp. 359-60.) While the customary law of England has thus, in fact, been extended, modified, and im proved through case-law, in very much the same way in which the primitive Roman code was transformed through the responses of the jurisconsults, in theory, the means employed have ever been held to be inca pable of altering one jot or one line of the existing jurisprudence. By the baldest of legal fiction, the new principles announced were assumed to be drawn from a preexisting nebulous body of English law, called the common law, ample enough to supply doctrines appli cable to any conceivable set of circum stances. And yet effective as such means •were in liberalizing and improving the English common law as such, they fell far short of the task to be accomplished. Just as it became necessary at Rome to build tip, outside of and apart from the primitive code, a distinct set of principles capable of superseding it called equity, so it became necessary to build up alongside of and apart from the English common law a like system under the same title. That process began with the growth • of the equitable jurisdiction of the English chancellor which Lord Campbell has defined to be "the ex traordinary interference of the chancellor, without common law process, or regard to common law rules of proceeding upon the petition of the party aggrieved, who was without adequate remedy in a court of law." Thus the new body of equitable rules which began to flow from a royal source, and openly avowed that its right to super sede or supplement the primitive code rested upon the indisputable inadequacy of that code to then existing conditions. As the praetorian equity of Rome and the

equity of the English chancellor thus grew out of the same necessity, it is natural that their comparative histories should reveal many commQn features. As a master of the subject has said: "The prœtor was the chief equity judge as well as the great com mon law magistrate, and as soon as the edict had evolved an equitable rule, the prtseor's court began to apply it in place of or by the side of the old rule of the civil law, which was thus directly or indirectly repealed without any express enactment of the legislature." (Maine, Ancient Law. p. 64.) No better statement can be made of the process through which the same result was worked out in England. At Rome, the growth of equity had its limits; it seems to have exhausted itself when the succession of jurisconsults comes to a close with the reign of Alexander Severus. Then follows a period during which. Gibbon tells us, "the oracles of jurispru dence were almost mute." From that time the history of Roman law is the history of the imperial constitutions and of the at tempts finally made to subject the unwieldy body to codification. In the same way the expansion of English equity seems to have ended with the chancellorship of Lord Eldon, who devoted himself rather to har monizing and explaining the principles announced by his predecessors than to the germination of new ones in gremio magis tratum. The most striking point of differ ence, of course, between Roman and Eng lish equity is embodied in the fact that the latter, despite its bulk, has always abhorred codification. JUDGE-MADE LAW IN THE UNITED STATES The political dogma that the executive, legislative, and judicial departments of gov ernment should be separate and distinct was first announced by Montesquieu, who accepted it and promulgated it in the modi fied form in which it existed in the English constitutional system. In that form it appeared in the constitutions of the several