324 HISTORY OF ROMAN LAW 



Middle Ages. In other words, the German law-speaker is the ancestor 

 of the European judge. At Rome, also, in the imperial period, arti- 

 ficial selection was substituted for natural selection. Certain jurists 

 received from the Emperor " the right of responding, "and the indices 

 were not bound to consider any opinions except those proceeding 

 from these certified or patented jurists. This change brought the 

 Roman jurists a step nearer to the Anglo-American judges. The 

 evolution was completed, as I shall presently indicate, in the second 

 century after Christ ; but before describing the processes by which law 

 was made in the Empire, we must consider and compare Roman 

 praetorian law and English equity, in order to see how far the pro- 

 cesses by which these systems were developed present real analogies. 



Roman praetorian law and English equity are in so far analogous 

 as they both represent what the Romans called ius honorarium, 

 official law. In both cases the new law was produced by governmental 

 agencies which were not exclusively nor indeed primarily judicial - 

 agencies which set themselves above the previously existing law, and 

 which not merely supplemented it but overrode it. 



There is a superficial difference between the way in which the 

 Roman praetors made law and the way in which the English chan- 

 cellors made it. The praetors used the quasi-legislative form of ordin- 

 ance or "edict"; the English chancellors developed new rules in 

 judicial fashion by decisions rendered in single cases. When, however, 

 we examine the edicts of the Roman praetors and consider how their 

 provisions were applied, the difference almost disappears. The praetor, 

 like the chancellor, was originally an administrative rather than 

 a judicial officer; but his duties were in the main judicial: it was his 

 chief business to arrange for the termination of private controversies. 

 The edict which each praetor set up at the beginning of his year of 

 office was not a series of commands but a programme. In it he pro- 

 vided certain remedies and indicated under what circumstances each 

 remedy would be given. This programme was carried out, as single 

 cases were presented, by means of formulas sent to the indices . The 

 formula was a command: if the -index found certain allegations of the 

 plaintiff to be true, and if he did not find certain other allegations of 

 the defendant to be true, he was commanded to render a certain 

 decision. The English chancellor decided cases as he saw fit. The 

 Roman praetor caused cases to be decided as he saw fit. A new rule 

 working itself out in chancery was first disclosed in the decision of the 

 special case which suggested it, and any modification of the new rule 

 was subsequently revealed in the same way. Any new rules which the 

 Roman praetor intended to enforce, and any modifications which he 

 intended to make in the rules laid down by his predecessors, were 

 announced in advance, at the beginning of his year of office. Funda- 

 mentally these two methods of creating law are identical, and they 



