第17章

What was the exact point of contact between the old JusGentium and the Law of Nature? I think that they touch and blendthrough AEquitas, or Equity in its original sense; and here weseem to come to the first appearance in jurisprudence of thisfamous term, Equity In examining an expression which has soremote an origin and so long a history as this, it is alwayssafest to penetrate, if possible, to the simple metaphor orfigure which at first shadowed forth the conception. It hasgenerally been supposed that AEquitas is the equivalent of theGreek @@@@@@, i.e. the principle of equal or proportionatedistribution. The equal division of numbers or physicalmagnitudes is doubtless closely entwined with our perceptions ofjustice; there are few associations which keep their ground inthe mind so stubbornly or are dismissed from it with suchdifficulty by the deepest thinkers. Yet in tracing the history ofthis association, it certainly does not seem to have suggesteditself to very early thought, but is rather the offspring of acomparatively late philosophy It is remarkable too that the"equality" of laws on which the Greek democracies pridedthemselves -- that equality which, in the beautiful drinking songof Callistratus, Harmodius and Aristogiton are said to have givento Athens-had little in common with the "equity" of the Romans.

The first was an equal administration of civil laws among thecitizens, however limited the class of citizens might be; thelast implied the applicability of a law, which was not civil law,to a class which did not necessarily consist of citizens. Thefirst excluded a despot. the last included foreigners, and forsome purposes slaves. On the whole, I should be disposed to lookin another direction for the germ of the Roman "Equity." TheLatin word "aequus" carries with it more distinctly than theGreek "@@@@" the sense of levelling. Now its levelling tendencywas exactly the characteristic of the Jus Gentium, which would bemost striking to a primitive Roman. The pure Quiritarian lawrecognised a multitude of arbitrary distinctions between classesof men and kinds of property; the Jus Gentium, generalised from acomparison of various customs, neglected the Quiritariandivisions. The old Roman law established, for example, afundamental difference between "Agnatic" and "Cognatic"relationship, that is, between the Family considered as basedupon common subjection to patriarchal authority and the Familyconsidered (in conformity with modern ideas) as united throughthe mere fact of a common descent. This distinction disappears inthe "law common to all nations," as also does the differencebetween the archaic forms of property, Things "Mancipi" andThings "nec Mancipi." The neglect of demarcations and boundariesseems to me, therefore, the feature of the Jus Gentium which wasdepicted in AEquitas. I imagine that the word was at first a meredescription of that constant levelling or removal ofirregularities which went on wherever the praetorian system wasapplied to the cases of foreign litigants. Probably no colour ofethical meaning belonged at first to the expression; nor is thereany reason to believe that the process which it indicated wasotherwise than extremely distasteful to the primitive Roman mind.

On the other hand, the feature of the Jus Gentium which waspresented to the apprehension of a Roman by the word Equity, wasexactly the first and most vividly realised characteristic of thehypothetical state of nature. Nature implied symmetrical order,first in the physical world, and next in the moral, and theearliest notion of order doubtless involved straight lines, evensurfaces, and measured distances. The same sort of picture orfigure would be unconsciously before the mind's eye, whether itstrove to form the outlines of the supposed natural state, orwhether it took in at a glance the actual administration of the"law common to all nations"; and all we know of primitive thoughtwould lead us to conclude that this ideal similarity would domuch to encourage the belief in an identity of the twoconceptions. But then, while the Jus Gentium had little or noantecedent credit at Rome, the theory of a Law of Nature came insurrounded with all the prestige of philosophical authority, andinvested with the charms of association with an elder and moreblissful condition of the race. It is easy to understand how thedifference in the point of view would affect the dignity of theterm which at once described the operation of the old principlesand the results of the new theory. Even to modern ears it is notat all the same thing to describe a process as one of "levelling"and to call it the "correction of anomalies," though the metaphoris precisely the same. Nor do I doubt that, when once AEquitaswas understood to convey an allusion to the Greek theory,associations which grew out of the Greek notion of @@@@@@ beganto cluster round it. The language of Cicero renders it more thanlikely that this was so, and it was the first stage of atransmutation of the conception of Equity, which almost everyethical system which has appeared since those days has more orless helped to carry on.