The Evolution of Law. 119 



erty belongs to the family ; and when the family has perished 

 that it shall go to the gens. So the crafty and shifty 

 magistrate invents a fiction which satisfies the unsophis- 

 ticated gods with the form, and gives the substance to 

 buyer or devisee. The proposed devisee is adopted with 

 rigid observance of ancient form and formula, as eldest 

 son of the family ; or the vendee is so adopted ; and the 

 title of either is perfect. 



For a long time, reforms in Roman and English law 

 were brought about in this way. It is said, by competent 

 authority, that there was a time when almost the entire law 

 of English procedure was composed of such fictions. It is 

 quite certain that no historic system has been without 

 them ; and it is fair to infer that they are a necessary phase 

 of legal development. The reason is not far to seek. We 

 find it in the conditions of a primitive people ; their 

 poverty of resource, narrow range of experience, a lack 

 of constructive imagination, the formality and techni- 

 cality of primitive ways due to the influence of a cere- 

 monial religion, and most of all, in the mental apathy that 

 always characterizes an age of ignorance. 



Next to Fiction in the development of Law comes 

 Equitij] which, according to Sir Henry Maine, signifies 

 "Any body of rules existing by the side of the original 

 " civil law ; founded on distinct principles, and claiming 

 " incidentally to supersede the civil law in virtue of a su- 

 "perior sanctity inherent in these principles." This is 

 not what modern courts would regard as a " working defini- 

 tion " ; for they have come to regard Equity as a fixed sys- 

 tem, Maine regards it as an influence. 



The necessity for the action of such an influence in the 

 modification and improvement of the law is due to the 

 fact that, in all communities which are not stationary, 

 the morality of the people runs in advance of the law. 

 As civilization progresses, rights and duties multiply and 

 become more complex ; with this, morality refines, and the 

 public conscience broadens, deepens and becomes more 

 sensitive, so that the rigidity and formality of old law 

 comes to be regarded as a hindrance to progress. Espec- 

 ially does its inadequacy in adapting form to substance, 

 and procedure to merits, and its poverty of resource in 

 number and kinds of remedies, begin to be felt. The 

 sense comes that procedure and judgment should be ac- 



