PROBLEMS OF ROMAN LEGAL HISTORY 325 



both resemble law-finding rather than law-making. The rules laid 

 down were suggested in both systems by actual controversies, and 

 they were amended in both systems as new controversies afforded 

 new points of view. In form the Roman process was more considerate 

 of private interests. The complaint of the English common lawyer, 

 that equity was administered according to the length of the chan- 

 cellor's foot, would have lost much of its force if the length of the foot 

 had been indicated in advance. 



The similarities of the two movements are more striking than the 

 formal differences between them. At the outset neither the Roman 

 praetor nor the English chancellor was held to be capable of making 

 or finding law or of creating new rights. Each, however, could issue 

 orders, and each could enforce these orders in personam by fine and 

 imprisonment. Each was therefore able to impose new sanctions and 

 to create new remedies; and eventually, in both systems, it was 

 recognized that where there was a sanction there must be a legal rule 

 and where there was a remedy there must be a legal right. Strictly 

 speaking, the rules laid down in the edicts of the praetors and those 

 expressed or implied in English decisions in equity became law by 

 force of custom. It was by the iteration of the same rule in successive 

 praetorian edicts (edicta tralatitia) that the Roman official law was 

 built up. It was by the observance of precedents and the develop- 

 ment of a settled practice that English equity came to be a regular 

 part of the English law. 



There was, however, one important historical difference between 

 the two movements. The development of the Roman praetorian law 

 not only made Roman law more equitable, but it introduced into that 

 law the commercial customs of the Mediterranean customs which 

 apparently date back to the Babylonian Empire. A similar reception 

 of general commercial law took place in England, but here it came 

 later, after the development of equity, and chiefly through the action 

 of the common law courts. In both cases, however, as Goldschmidt 

 has pointed out, commercial law was not brought in as a distinct and 

 separate system, as in the modern continental European states, but 

 the general 1-aw was commercialized. The English law was commercial- 

 ized by decisions of the common law courts, largely rendered in the 

 eighteenth century, just as the Roman law had been commercialized 

 by praetorian edicts in the second and first centuries B. c. 



In the Roman imperial period the processes of law-making became 

 more obviously similar to the processes by which law has been devel- 

 oped in modern times. Under the Empire law-finding gradually 

 became altogether governmental. The first step in this direction was 

 taken, as we have seen, when the jurists became representatives and 

 agents of the Emperors. The next step was the establishment of new 

 courts, civil and criminal, in which imperial officials heard the plead- 



