THE FUSION OF LAW AND EQUITY.

In the fusion of law and equity lies, in the opinion of the

writer, the one great object to be achieved, if we would reach
anything like a true reformation of the evils of the present
administration of justice. From time to time we have had
amendments made to our procedural methods, which have more
or less ameliorated the situation, but these have been mere nib-
blings at the edge of things and not bites to the center. What
we must have is one system of rights, as the Romans had in
the full flower of their jurisprudence. Until we have taken
steps to achieve that we are simply walking round and round
like one lost Indeed, we have in reality no system of law at
all, but instead we have three no systems-a system of real prop-
erty law, a system of law and a system of equity, each one
standing out separate and distinct from the others. Could any-
thing be more chaotic than this-this which deals with nearly
the most important of human concerns? One would imagine
that the people of any organized, civilized society would see to
it that the first thing to engage their attention would be the law-
its simplicity and its adaptation to their needs, for all must
admit that the demand is imperative, and that the demand must
be properly met, else great evil results. Yet not only has noth-
ing of moment been done (except the overturn in England by
the Judicature Act of 1873, which most unfortunately stopped
short), but besides great opportunities have been missed, as for
instance that furnished by the statute In Consimili Casu of the
second of Westminster passed in 1285. But at that time kings'
writs were almost sacred things, which it was almost sacrilegious
to touch, at least the common law judges thought so, and hence
after several new writs were extracted from the statute, all for-
ward movement ceased. From that time until the Judicature
Act of 1873, nothing substantial was done, with the result
that equity as an entirely new system of rights pursued its way
without let or hindrance. Jeremy Bentham was as one crying
in the wilderness, Romilly and his associates devoted themselves
(17)
18 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

to a remedy of the most apparent flagrant abuses of the day,

which had little or nothing to do with the substantive law, while
John Austin devoted his great abilities to making clear what
we already had.
How great the difference is between our two systems of
law and equity is not appreciated unless attention is very par-
ticularly attracted to it Contract is one thing at law, quite
another thing in equity. If a partner, who as such and on behalf
of his partnership undertakes to enter into a contract with a
corporation of which he is a director, it is a good contract at
law-there are juristic persons on each side and all the other
elements of a contract are present; but in equity it is quite
different. Under that system it is treated as no contract at all,
by reason of the fact that looked at from the point of view of
equity the two opposite parties have in reality contracted with
themselves. Again, the defenses to a contract at law are quite
limited, while under equity one may even have contracts given
up to be cancelled on grounds to which a court of law would
pay no attention. So, in transactions and contracts flowing from
them between parties having certain relations with each other,
while the transactions and contracts might be perfectly good
at law, they would be valueless in equity in the absence of the
complaining party's having had independent advice. Take con-
sideration, which lies at the very heart of the common law con-
tract. At law any consideration, no matter how small, will
support a contract and a suit on it for the breach; but if one
wishes to have the contract specifically enforced, as he cannot
do at law, he must allege and prove, at least in this state,1 the
full value of the property, together with a number of other
things altogether negligible at law. These are instanced, simply
as examples, and not by any means as exhaustive, for the
treatises on equity show on every page the great difference be-
tween the two systems. Hence, it would be a work of superero-
gation to pursue this matter further.
The Roman system at the beginning and for centuries as

1
California.
 THE FUSION OF LAW AND EQUITY

a matter of fact was even more rigid and formal, if possible, than
was the common law. This was, in fact, a necessary incident
of all archaic life. In the nature of things form will then dom-
inate everything. The archaic man looks at a tree and sees
nothing but its shape. His imagination is not moved except
fearsomely; he may fear a branch will fall upon and kill or
injure him but beyond that he has no conceptions-the great and
varied parts which the tree plays in the drama of life are
strangers to him-the form is everything. Hence the tremen-
dous part that form plays in all the operations of archaic life.
If a rain is to be produced or a drought to be ended, the form
of the remedy must be followed to the letter else no result fol-
lows. All this is perhaps nowhere so well shown as in Fraser's
Golden Bough. This is the reason that we become so addicted to
form and neglect altogether the substance. Form has so per-
sisted that today it controls our law to a most mischievous
extent, so that we say, as though it were a matter of course, law
deals with form, equity with substance. Now in reality unless
form is of the substance itself, as for instance where two wit-
nesses to a will are made prerequisites to a valid testament, it
should never control. The inept way we have of correcting this
is by setting up a new system which, still letting the old system
live on to work more mischief, will prohibit its voice from
being heard in the particular transaction under examination. The
result is that we have a system of laws beyond any comprehen-
sion by the man from Mars.
The Roman was indeed the very slave of form. Outside of
the four consensual contracts, which required the solemn ex-
pression of both parties to every agreement, the Roman law
required a certain ceremony without the performance of which
no obligation was created and on which alone recovery was
possible, the Romans apparently having no suable contract as
such. Hence unless an obligation were created by following
the particular form no action could be had. This was pur-
suant to the interpretation of the Twelve Tables, and was of the
very essence of the jus civile. The Roman system being thus
strict and rigid the question arises how it was that it trium-
20 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

phantly rose into the clear sky of equity, and how it was that in
its rise the Romans were enabled to blend what seemed dis-
cordant elements into a harmonious whole, so that their law now
dominates nearly the whole civilized, world. It properly lies
within our subject to answer this, and to explain if we can why
in England under apparently similar conditions a like result was
not attained. We cannot understand things without knowing
and understanding their history.
With a system like that of the Romans, based on very nar-
row foundations, formulated according to limited experience,
and set in rigidities beyond the power of the peopli to break,
what was Rome to do when she came to the Mediterranean and
faced the entire civilized world? Evidently such a system would
not answer even if it were available. But it was not available.
Every Roman subject was not a Roman citizen. It is true that
Roman citizenship was enlarged from time to time, but it was
not until Caracalla's time in the early part of the third century
that every one subject to Rome was made a Roman citizen. The
J=s civile was only available to citizens; the subjects not citizens,
had not the benefit of municipal law, nor had they the many
privileges of a Roman citizen. They were, in fact, outcasts as
matters stood. Maine says that the "alien or denizen could have
no share in any institution supposed to be coeval with the state."
Hence the Romans would not apply their own law (jus ciznle)
to any controversy between foreigners or between a foreigner
and a Roman citizen, as this would involve the notion of super-
iority of such a law to their own. So, according to Maine,
"the expedient, to which they resorted was that of selecting the
rules of law common to Roman and to the different Italian com-
munities in which the immigrants were born." This is what they
called the law of nations, because they supposed all nations used
it, and it got to be with them almost synonymous with the
law of nature of the Greeks. Again we have Maine saying,that
the jus gentium "was in fact the sum of the common ingredients
in the customs of the old Italian tribes, for they were all the ne-
tions whom the Romans had the means of observing and who
sent successive swarms of immigrants to Roman soil. When-
 THE FUSION OF LAW AND EQUITY

ever a particular usage was seen to be practiced by a large num-

ber of separate races in common, it was set down as a part of the
law common to all nations or jus gentium." Maine affirms that
it was the Greek theory of a law of nature which set it on its
feet and gave it vivifying power.2
The best statement that the writer has seen of jus gentium
is given by Sohn in his Institutes of Roman Law in the transla-
tion by Ledlie. This is as follows:
"The jus gentium was and never had been anything else but a
portion of positive Roman law which commercial usage and other
sources of law, more especially the praetorian edict, had clothed in
a concrete form. Nor again must it be imagined that the Romans
simply transferred .a portion of foreign (Hellenic) law bodily into
their own system. In the few quite exceptional cases where they
did so (as e. g. in the case of hypotheca) they never failed to im-
press their institutions with a national Roman character. The
antithesis between jus civile and jus gentium was merely the out-
ward expression of the growing consciousness that the Roman law,
in absorbing the element of greater freedom, was commencing to
discard its national peculiarities and transform itself from the
special local law of a city into a general law for the civilized world.
The jus gentium was that part of the private law of Rome which in
its fundamental conceptions was in accordance with the private law
of other nations, more especially with that of the Greeks, which
would naturally predominate along the seaboard of the Mediter-
ranean. In other words, jus gentium was that portion of the posi-
tive law of Rome which appeared to the Romans themselves as a
kind of 'ratio scripta,' a law which obtains among all nations and is
common to all mankind."
This expedient of the jus gentium was, as we have seen, a
necessity if Rome was to advance in a legal way. To be sure the
Roman did not like it, any more than he did the foreigners
"from whose institutions," says Maine, "it was derived and for
whose benefit it was intended." But his own system was de-
fective and insufficient and must in the nature of things have
been eked out by something else. To administer this system a
praetor peregrinus was set up and to him and his successors we
owe the great and beneficient extension of the Roman law. At
the beginning of his term, which like that of all Roman officials
2 Maine undoubtedly works the law of nature a little too much, and his
views are to be corrected by Pollock's notes e and g, in his edition of
Maine's Ancient Law.
22 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

lasted a year, he proclaimed the equitable rules which would gov-

ern him in the decision of cases. His successor would adopt,
if he thought well of it, his predecessor's edicts and add others
of his own, until in Hadrian's time these edicts having acquired
considerable volume were gathered together by competent hands
and were made law technically by a senatus consultum. This is
known as the Perpetual Edict of Hadrian and is doubtless the
first treatise on equity known to the world.
The praetor peregrinus was a true law maker, in fact a
legislator. In this there was no pretense. He did not, when
changing the law, pretend that he was doing nothing but declar-
ing it. In fact, he proclaimed in advance what he would do.
In this respect he was different from the English chancellor.
The latter had no legislative functions, but the functions alone
of a judge who decided the causes before him as they arose
between contending parties. Yet to the great mass of equity
decisions it is doubtful if there is a single Parliamentary con-
tribution-the whole of it is judge-made law, the very best law
of all, when properly administered. 3
John Austin says that the original meaning given to equity
by the Romans is that of "universal or general law as opposed
to partial or particular." The jus gentium:
"being the law common to these various nations or administered
equally or universally to members of these various nations, it
was also styled jus aequum, jus aequabile,aequitas;though the term
aequitas seems to have denoted properly, not this common or equal
law, but conformity or consonance to this common or equal law."
Thus it was that those who were not Roman citizens had
their controversies settled by the praetor peregrinus and the
controversies between citizens on one side and foreigners on
the other were similarly settled. And thus it was that formless
contracts were enforced as between the before named parties.
In other words the law of the jus civile did not apply to any of
such cases but only that law which the praetor could gather from
the jus gentium. It is plain to be seen from what has been stated,

I For the difference between the praetor and the chancellor, see Bryce, II
Studies in History and Jurisprudence, 281 ff.
 THE FUSION OF LAW AND EQUITY 23

how a great system of equity must have grown up and how

superior the law was as administered by the praetor peregrinus
to the jus civile under its procedural methods. When as in
Caracalla's time every Roman subject became a Roman citizen
there was nothing to stand in the way of this equity's becoming
nearly the sole law of Rome. As admirably stated by John
Austin: "The jus gentium therefore was so conspicuously better
than the proper Roman' law that naturally it gradually passed
into the latter or became incorporated with the latter."
Why was it that the Englishman did not do the same thing
as the Roman? Why was it with the same condition of things
existing, a narrow, incomplete system of laws, based on custom
and inexperience, requiring amendment on contact with business
and commerce, that the law was not so corrected and changed
as to make it applicable to the new conditions? That it was not
constitutes one of the greatest misfortunes that ever happened
in England.
The great uncertainty involved in having two systems of
law where there should be the greatest certainty in that which
underlies the deepest concerns of man, the being turned out of
one court because in the opinion of the judge the wrong court
had been selected, the manifest ineptitudes involved in the man-
ner in which equity treated the law, the time involved in studying
the two systems, the duplication of courts, the abuses neces-
sarily attendant on such a chaotic condition of things, the two
systems of rights not easily understandable by the common man,
are only some of the many evils for which we have been paying
for over seven hundred years. The system of equity, as built
up by the English judges, is the greatest mass of legal literature
in the world. It is monumental in character, not only in quan-
tity but in quality; and it is a million pities that all this learning
and labor should have been expended upon an imperfect system.
Think of the absurdity of preserving intact an old, barbaric
system and along with it another created for the purpose of
preventing the operation of the former system! One would
suppose that those parts of the system which were not per-
missible of operation would be wiped out altogether but instead
24 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

of that we have them existing and not existing. Equity follows

the law, so it is said, but the way it follows it is to prevent its
being put into operation. This is illustrated in the case of the
common law form of mortgage, which equity concedes conveys
the legal title, but at the same time prevents that legal title from
being put in force, and in the case of equitable estoppel which
does not convey the title but prevents the legal title from being
used as such. But why pursue the subject; the absurdities con-
nected with the two systems are such as to move the gods to
uncontrollable laughter, if such thitigs could be brought within
the dominion of humor. We have not yet answered the question
as to why such a condition of things should have been suffered
in England in face of the great Roman example. Pomeroy
attributes. the difference, firstly, to the strict construction of
writs by the English judges; secondly, to their illiberal con-
struction of the statute In Consimili Casu; thirdly, to the antag-
onism between the government and the church. Undoubtedly
these have all been causal, particularly the judicial treatment of
the statute In Consimili Casu, for there can be no doubt that
had that statute been hospitably treated and subsequently
enlarged it would have given birth to a system of equity with,
perhaps, stomach enough to swallow the rest of the law. But
while all these were causal in the opinion of the writer there was
no such paramountcy as in the different political conditions of
Rome. As we have seen, in Rome one part of the political system
was made up of those who were free and who alone had the
benefit of their own laws; the other part was made up of sub-
jects, who had no such benefit. For the latter, laws differing
entirely from those of the former had to be resorted to, and
from this in quite a natural way arose one system alone. In
England on the contrary all were subjects of the crown, all
possessed the freedom of the courts and all were subjects of the
same laws. There was, consequently, no reason for any resort to
foreign law, which by a friendly competition might easily prove
to be superior to their own. The question, however, is not one
of mere historic curiosity, but one the solution of which may
enable us to remedy the evils upon which have gathered the moss
 THE FUSION OF LAW AND EQUITY

of ages. It does seem as though we should no longer submit

ourselves and our progeny to the great absurdities and incon-
gruities of the present system. To be told that we can not be
heard in equity because there is a remedy at law, that if the
inferior tribunal can give us an adequate remedy (which in
reality it hardly ever can) we can not be heard in equity, as our
own courts have been telling us ever since the foundation of our
states and which undoubtedly is the law of the land, does get on
one's nerves if one's nerves are at all acute.
A great example might have been set at the foundation of
our government by the fusion of the two systems. Indeed, if a
lawyer were asked on what is based a common law of the United
States, or what authority the Supreme Court has to administer
such, he would very likely be puzzled. It seems to have come
to us somewhat like the manna to the Israelites in the desert;
they knew not whence it came but they knew it was good to eat
and they ate it accordingly. The writer is aware of the case of
Robinson v. Campbell,4 but what is there said by Judge Todd is
not at all determinative even if it were not obiter dictum. By
the Judiciary Act of 1789, the United States Circuit and District
Courts are given certain jurisdiction in common law and equity
cases on the assumption apparently that those two systems of law
were laws of the United States. Had there been at the start one
system of rights adopted by the general government, the great
example thus set would very likely have spread over the whole
country. But some think that here as in Great Britain we have
had too much lawyer in our public affairs. When one's mind is
directed to it, is it not reasonably plain that the ordinary lawyer
must look at things in rather a narrow way-in other words
that his view is not a comprehensive one? Our great presidents
have all been either men who were not lawyers at all or who have
not connected themselves with the law in a practical way. To
the overplus of lawyers in the public affairs of Great Britain
has been attributed by some, the blundering there in matters con-
nected with the great war, as is well illustrated in that remark-

43 Wheaton 212.
26 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

able book entitled, Ordeal by Battle, written by Frederick Scott

Oliver, himself a lawyer.
It is said all this is true enough, but what are you going to
do about it? This thing has existed so long that to attempt.to
cure it will be going from bad to worse. It is often said to the
one who wishes to change the existing order, what have you to
offer in its stead? You are good at destruction, but your destruc-
tion is nothing but evil if you cannot construct something better
to take the place of what you destroy. In fact the objector may
even go so far as to contend that there is nothing very serious
the matter and if there is the curing of it is an impossibility.
This has some force and a certain amount of plausibility, but
difficulties are never so insurmountable as they seem, and they
always grow smaller the more resolutely we approach them. It
is probable that the transition from the old to the new, will be
difficult and disagreeable, as nearly all transitions are, but in the
end the result will be so good as to be worth what it cost. All
radical changes are not to be feared; the writer recollects that
after the Civil War, the great question was resumption of specie
payment, our national paper being at a discount owing to the
lack of specie to redeem it. John Sherman kept saying, resume
specie payment at once whether there is enough metal money
on hand or not; to resume is to resume. Forthwith the thing
was done, there was not a particle of trouble, and our paper
money at once rose to par where it has remained ever since. It
must be apparent that nothing in the present instance is worth
while unless it is radical. We must strike down all distinction
between law and equity, and set up but one system of rights.
This distinction is purely artificial in its origin and life, and we
must get rid of it by artificial means. This, it is submitted, can
be done by amendment of our state constitutions, and then by
amending our various state statutes, so as to bring them in con-
sonance with the new order of things. The state constitution
might perhaps be amended thus:
All distinctions heretofore and now prevailing in this state be-
tween law and equity are hereby abolished; the rule that there can
be no relief in equity if there be a remedy at law is hereby abolished,
 THE FUSION OF LAW AND EQUITY 27

and in every case where there is a conflict between the rule in

equity and the rule at law such conflict must be settled in favor of
the rule in equity; there shall be but one form of action in this state,
and no matter how the plaintiff has shaped his case, the decision of
the court must be according to the evidence, and if necessary the
complaint shall be amended accordingly; in order that there may
be no doubt as to the meaning of this amendment, it is hereby de-
clared that its intent is to make a complete fusion of law and equity
and thus make the law more certain and facilitate the ascertain-
ment of the rights of litigants. The principles of equity so far as
they have been recognized by the courts of this country and the
principles of the common law so far as they are not in conflict with
those of equity are not abrogated by this amendment, but are hereby
continued in force.
The way suggested to amend our state constitutions and
statutes so as to bring them in consonance with the new order
of things would mainly be by so changing them as to recognize
no difference between law and equity. This would be effected
by striking out the word equity, wherever it appears in either
the constitutions or the statutes and refraining them accordingly.
For example, in California equity cases are now given on appeal
a different jurisdiction from law cases. This provision would
be modified so that all cases would be given the same jurisdiction
on appeal. By these or similar methods (and these are merely
suggestive) it seems to the writer we should reach the desired
end-that of having neither actions at law nor suits in equity,
but merely actions where the rights of the parties are to be
determined by the law of the land.
Edward Robeson Taylor.

Dean of Hasting's College of the Law,

San Francisco.