558
THE GREEN BAG
part of a wider transition from unwritten customary law to the ancient codes which appeared in Greece, on the Hellenized sea board of western Asia, and in Italy, and of which the Twelve Tables of Rome are the most famous illustration. Such codes of laws engraved on tablets and published to the people, were substituted for traditional usages reposing in the recollection of priv ileged oligarches, not through the refined motives now urged in favor of codification, but rather as a matter of convenience sug gested by the discovery of the art of print ing, and also by the abuses arising out of the aristocratic monopoly of legal know ledge. The Roman code of the Twelve Tables was merely an enunciation in written words of the existing customs of the Roman people, put forth at a time when Roman society had barely emerged from that in tellectual condition in which civil obliga tion and religious duty are inevitably con founded. The vitally important result brought about by the transition which thus took place from unwritten customary law to a written code, is embodied in the fact that when archaic law is once condensed into a code there is an end to its spon taneous development; all after changes in it must be effected, if at all, deliberately and from without. As law is stable, and societies of the higher type progressive, as social necessities and opinions are ever more or. less in advance of law, how is the latter to be kept in har mony with the former? The problem of problems for students of the historical school is involved in the process through which the strait-jacket put on by an infant state, in the form of a written code, is to be made sufficiently elastic to adapt itself to all the changing conditions of the after growth. Leaving out of view legal fictions which, at certain stages of social progress are invaluable expedients for overcoming the rigidity of law, by all odds the most important instrumentality through which the primitive Roman code was expanded
beyond the wants of the citizens of a single city to those of the citizens of a vast league of cities, was that known as equity, a name given to a body of principles built up by Roman magistrates and Roman lawyers alongside of the original civil law which it claimed the right to supersede by virtue of a superior sanctity inherent in such prin ciples. In order to understand how that body of judge-made law called equity was evolved, it is necessary to know something of the manner in which justice at Rome was administered. In theory' the supreme judicial power was vested in the praetor who was either a jurisconsult himself, or a person entirely in the hands of those who were. When a suit was commenced, the litigants ap peared before the praetor who made a preliminary examination in order to ascer tain the precise points in controversy. After hearing the statements and counterstatements of plaintiff and defendant, he constructed a brief technical outline of the disputed issues called a formula. That formula was then put into the hands of a judex (something very different from the modern conception of a presiding judge), who, after hearing the evidence of the witnesses and the arguments of the ad vocates, returned his decisive judgment to the praetor who had appointed him. The entire proceeding thus carried on by the prastor, judex, and advocates, was under the intellectual guidance of the juriscon sults, the makers of the scientific law lit erature of Rome, who were regarded as law experts, and respected and resorted to as such by all concerned in the adminis tration of justice. Primarily the prator was a great statesman or politician whose final function was to enforce the law; the judex, or as we would now call him. the referee, might have no technical knowledge of law whatever. Under such conditions the unlearned judicial magistrates natu rally looked for light and leading to the jurisconsults who instructed them through
