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of existing law, but was fitted to become an instrument for the § 15. creation of new law. It is necessary to bear this fact in mind

in order to appreciate the peculiar importance of the praetorian 'edict.'

An edict is an order promulgated by a magistratus populi Romani. A praetorian edict, therefore, is an order promulgated by the praetor. It deals with the principles by which the praetor intends to be guided in his administration of justice, in other words, in the exercise of his free judicial discretion. Though the power of issuing commands— the imperium-vested in him from the very outset, it is not likely that he began to proclaim such edicts at once. He would, of course, in the first instance consider it his sole duty, in dispensing justice as between Roman citizens, to administer the existing law, and where foreigners were concerned-so far as the principles of his jurisdiction were not regulated by international treaties—he would probably content himself, at the outset, with deciding each case, as it came before him, on its merits. It was therefore, in the nature of things, a very gradual process by which definite principles peculiar to the praetorian jurisdiction were worked out -principles which, when developed, tended more and more to constitute the praetorian power the organ of reaction against the principles of the civil law. It was thus but gradually that an occasion arose for the praetor to promulgate any orders in regard to the granting of legal assistance. It would seem, however, that, even at an early period, it was usual to post up in the praetor's court a list of legal formulae for the better information of the parties to an action, e. g. of formulae for the interdicts for which application had to be made to the praetor-interdicts being commands by means of which the praetor, in the exercise of his administrative powers, granted an extraordinary remedy (infra, § 56)-and, again, of formulae for the processual sponsiones (processual agreements) which the praetor, under certain circumstances, compelled the parties to enter on2.

2 At the end of the Edictum Hadrianum there is an appendix consisting, for the most part, of nothing but formulae,-formulae, namely, for the interdicts, exceptiones and stipulationes

(processual sponsiones). There is no
internal reason whatever to justify the
grouping together, at the end of the
edict, of these formulae, more especi-
ally of the formulae for the exceptiones

§ 15. In addition to this tablet of formulae other tablets gradually came into use, which contained the orders of the praetor concerning matters of law, i. e. the edicts. After the introduction of the formulary procedure (infra, p. 81) the 'actiones' or formulae for commencing an action were also published on tablets. A new kind of Tables of Law thus arose side by side with the twelve bronze tables which were to be seen, not far away, in the forum Romanum, and on which was engraven the old jus civile of Rome. The praetorian tables being only intended to last for a year were simply made of wood painted white, for which reason they were called collectively 'album.' Nevertheless these wooden tablets were destined to outlast the bronze ones. For they represented those principles of law which metamorphosed and finally swept away the ancient laws of the decemviri. The whole body of edicts and formulae was called either 'album' (on account of its outward form) or 'the edict of the praetor,' the formulae prescribed by the praetor (the publication of

and stipulationes. And the arrangement
seems all the more unreasonable, be-
cause the edicts which deal with the
praetorian stipulationes (i. e. which
direct their conclusion) and the stipu-
lationes themselves are placed in en-
tirely different parts of the Edictum
and are thus completely detached from
one another; and, further, because the
exceptiones and the subject-matters to
which they respectively belong are, in
like manner, totally disconnected. It
seems most natural to look to history
for an explanation of so strange an
anomaly, to the fact, namely, that this
appendix contains the beginnings of
the praetorian album,' the tablet of
formulae (with, of course, a number of
subsequent additions) which was left in
the very order in which, in the course
of time, it had shaped itself.
absence, in this tablet of formulae, of
the 'actiones' or forms of action, is ex-
plained by the fact that, at the time of
the procedure by legis actiones; the
praetor had no power in regard to the
drawing up of the formulae for actions.
The legis actiones, which were elabor-
ated and developed by the pontifical
jurisprudence, owed their publicity not
to the praetor, but to private compila-

The

tions (the jus Flavianum, Aelianum ; infra, p. 93). Subsequently, when the formulary procedure had come into use, the praetor published the formulae relating to actions as well, and arranged them in their proper place among the edicts. The older formulae, however, were left where they were and formed a special section-the appendix-of the album. This hypothesis assumes that the legal remedies grouped together in the appendix are all as old as the period of legis actiones. That this is true of the interdicts and praetorian stipulationes can be asserted with sufficient certainty. As regards the exceptiones, the fact under discussion might perhaps be considered an argument in favour of the view that the insertion of an exceptio was possible, not indeed in the 'lege agere,' but in the proceeding called per sponsionem agere' (the processual sponsio), which can be traced back to the period of legis actiones v. Karlowa, Der römische Civilprocess zur Zeit der Legisactionen, p. 101 (1872). In that case the placing of the formulae of exceptiones before those of sponsiones would not be accidental. On this subject v. Wlassak, Edict und Klageform, p. 22 ff. (1882); Karlowa, Röm. RG. vol. i. p. 462 ff.

which was not, in the legal sense, an edict) being thus included § 15. with the edicts proper under the collective title of 'the Edict".'

It is probable that, from an early date, it was the business of every new praetor, on taking office, to revise the tablets of formulae and put up new ones. For it was obvious that these tablets, being made of wood, would serve, at most, for the one year of office. What had been a traditional usage in the case of the formulae became, from the very outset, a matter of necessity in the case of the edicts. For the edict was only valid during the year of office of the praetor who issued it. Thus when the new praetor came in, he had to publish anew 'the Edict' as a whole: ut scirent cives, quod jus de quaque re quisque dicturus esset: 1. 2 § 10 D. de O. J. (1, 2).

The edict which the praetor issues on taking office is called the ' edictum perpetuum.' It is intended to be valid for the whole term of his year of office. The opposite of the edictum perpetuum is an extraordinary order issued by the praetor during the year of office for such unforeseen occasions as may arise (prout res incidit). The edictum perpetuum or, as we shall in future call it, the 'edict' simply, is not a statute, nor is it originally even a source of law at all. For the very magistrate who had issued the edict might arbitrarily disregard it', till a lex Cornelia (B.c. 67) made it illegal

'The arrangement of the Edictum Hadrianum (cp. § 17) is based on the antithesis between the ordinary and extraordinary legal relief administered by the magistrate. The first main part of the Edict deals with the exercise of the 'jurisdictio,' i. e. the ordinary form of legal relief; the second with the exercise of the 'imperium' (in the narrower sense of the term), i. e. the extraordinary form of relief administered by the magistrate in virtue of the imperative powers of his office (v. infra, § 56). Preceding the two main parts we have an introductory section dealing with the rules for regulating judicial proceedings up to the appointment of the judex. Appended we have a concluding section dealing with execution and appeals. Then follows the appendix, discussed in note 2, dealing with interdicts, exceptiones and stipulationes, and, last of all, the

aedilician edict. Lenel, Edictum per-
petuum, p. 12 ff. (1883).

But in such a case his colleague
might intercede. Cic. in Verrem, act.
II. lib. I. 46 § 119: Tum vero in magis-
tratu contra illud edictum suum sine
ulla religione decernebat. Itaque L.
Piso multos codices implevit earum
rerum in quibus ita intercessit, quod
iste aliter atque ut edixerat decrevisset.
Cp. also 120: Alias revocabat eos
inter quos jam decreverat, decretumque
mutabat, alias inter alios contrarium
sine ulla religione decernebat ac proxi-
mis paullo ante decreverat. Thus,
though it was felt to be most im-
proper (sine ulla religione) for a praetor
to violate his own edict, still his legal
right to do so was an exemplification of
the nature of the magistrate's judicial
power; i. e. like the sovereign power of
the kings, which had devolved upon

§ 15. for a praetor to depart from his edictum perpetuum. But even then the validity of the edict expired with the year of office of the praetor who had issued it. The new praetor was not bound by the edict of his predecessor. He could repeat it or alter it, as he chose. It was, however, but natural that a custom should soon establish itself for each praetor, on taking office, regularly to repeat a large portion of the edict (the 'edictum tralaticium '), and confine himself merely to additions (nova edicta, novae clausulae "). Thus a regular system of judge-made law grew up in the praetorian court which, in addition to the statutory and customary law already in force, became, in point of fact, one of the most potent factors in the legal system.

The praetor peregrinus had to adjudicate in disputes between aliens, and between citizens and aliens. In his judicial capacity therefore he possessed unlimited authority, and it was in virtue of this authority that he became the organ for shaping and working out the law for foreigners, the jus gentium (p. 69). In the edict of the praetor peregrinus the jus gentium thus acquired a written, fixed, and tangible form, and was, at the same time, placed in a position to exert a more powerful influence on the general development of Roman law, including the law as between citizens themselves. The praetor urbanus only had jurisdiction in disputes between Roman citizens. His edict dealt with Roman law in its entirety, i. e. both with the jus gentium (which of course came to be recognized as between Roman citizens as well) and the jus civile, in the narrower sense. The form in which the jus civile really attained to practical vitality in the praetor's court became clearly apparent in the edict of the praetor urbanus.

The praetor had no power to legislate, but he might grant or

him, it was formally free, subject only
to the limitations imposed by definite
leges.

By the time of Cicero the greater
part of the praetorian edict had already
become tralaticium, so that Cicero
describes the praetorian law-which, of
course, was not based on any lex-as a
sort of customary law; Cic. de invent.
II. 22, § 67 Consuetudinis autem jus
esse putatur id quod voluntate omnium

sine lege vetustas comprobavit; in ea autem jura sunt quaedam ipsa jam certa propter vetustatem ; quo in genere et alia sunt multa, et eorum multo maxima pars, quae praetores edicere consuerunt. Cic. Verr. II. lib. i. 44 § 114: et hoc vetus edictum translaticiumque esse; 45 115 in re vetere edictum novum ; 48 117: hoc (edictum) translaticium est. Mommsen, Röm. Staatsrecht, vol. i. (3rd ed.) p. 208, note 5.

refuse an action. The old action of the civil law (legis actio) was § 15. confined within certain inflexible formulae which had been developed by the practice of the courts in conformity with the words of the statute. All the magistrate could do here was to grant or disallow the action (legis actio). Hence it was a most important event when, by the enactment of the lex Aebutia towards the middle of the second century B. C., the formulary procedure gained a footing even in proceedings between cives, that is, in proceedings governed by the jus civile. This procedure derived its name from the fact that, under it, the lodging of the complaint resulted in the magistrate addressing to the judex a written precept (formula), containing an authoritative statement of the issue in dispute, together with the principles on which the judex was to decide it (infra, § 49). The judex who heard the case (i. e. the private individual to whom the praetor, in accordance with traditional custom, referred the matter in litigation for trial and decision) was now far more dependent than formerly on the magistrate's instructions. He might be directed, under certain conditions, to disallow an action which the civil law admitted, or, on the other hand, to allow a claim of which the civil law knew nothing whatever. Again, as against the parties themselves, the position of the praetor was now one of much greater freedom than before. He might, on the one hand, refuse an action; on the other hand, he might, while granting an action, subject his grant to such conditions as to make it in certain cases tantamount to a refusal. The entire procedure was thus brought under the control of the praetor.

We can now understand how it came to pass that the praetorian law soon began to advance with rapid strides. By the time of Cicero the praetorian edict had already become the leading organ for the development of Roman law. But the praetorian reform achieved its most essential result by working out that equitable law (the jus gentium) which was tending more and more to displace the harsh rigours of the old jus civile. The praetorian edict was the

Cic. de legib. I. 5. 17: Non ergo a praetoris edicto, ut plerique nunc, neque a XII tabulis, ut superiores, sed penitus

SOHM: LEDLIE

G

ex intima philosophia hauriendam juris
disciplinam putas.

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