« PreviousContinue »
digenous law of Rome, as contrasted either with the whole ius gentium, or with such part of the latter as was taken up by the praetor into his edict. Its sources are enumerated in a passage already cited, as 'leges, plebiscita, senatus consulta, decreta principum, auctoritas prudentium.' Only the first two of these are of practical importance until the establishment of the empire, but all are explained below or in the Commentary on Book I. Title 2. Cicero (Top. 5) adds to these sources of the civil law three others, viz. res iudicatae, mos (cf. Inst. i. 2. 9), and aequitas. Usage, as a source of positive law, will be treated in the passage of the Institutes referred to The authority of precedents, expressly recognised by a rescript of Severus, was established, as we may gather from Cicero, at a far earlier period. 'Nam imperator noster Severus rescripsit, consuetudinem aut rerum perpetuo similiter iudicatarum auctoritatem vim legis obtinere debere' (Callistratus in Dig. 1. 3. 38). By res iudicatae in Roman law are to be understood those rules of customary law which gained acceptance by the uniformity of their judicial application to individual cases, and which, according to Austin, are the only true customary law whatsoever; among them the most important were the praeiudicia of the centumviral court. Their importance, however, as a source of law is so trifling that neither Gaius nor Justinian mentions them; and this is one of the most interesting points of difference between the English and the Roman system, which Sir Henry Maine explains by the difference in their early history: 'The theoretical descent of Roman jurisprudence from a code, the theoretical ascription of English law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours.' By 'aequitas' Cicero seems to have meant the internal, living, intellectual principle which is an element in all law, and consequently not a distinct source from which a particular kind of positive law is generated; his use of the term is popular rather
expressions maybe noticed. (1) In some passages ius civile signifies the older civil law, whatever its specific source, as contrasted with later enactments which either (a) partook of the nature of ius gentium (thus in Gaius ii. 197, 8, it is opposed to the SC. Neronianum), or (¿) were based on political rather than on purely legal considerations (thus in Gaius ii. 206, and Ulp. Reg. 24. 12. 13. it is opposed to the lex Papia Poppaea). (2) It is sometimes opposed to the criminal law (e. g. Cicero in Verrem i. 42, pro Caecina 2). (3) In Dig. 1. 2. 2. 5 and 12 it is used to denote the law made by the Roman jurists, 'quod sine scripto in sola prudentium interpretatione consistit.' (4) It sometimes expresses the ius Quiritium as summed up in the Twelve Tables. 1 Cf. Holland, Jurisprudence pp. 44-49.
than scientific. Not far different from this is the sense which it bears in certain passages of the Digest (e.g. 47. 4. 1. 1; 16. 3. 31. 1) as equivalent to 'ratio,' the correspondence between a legal rule or institution and the spirit of civil or natural law. In other passages aequitas denotes (a) the agreement between rules of positive law and the natural sense of right (e.g. naturalis aequitas Dig. 2. 14. 1 pr.; 37. 5. 1 pr.), (£) the decision of a legal question with special reference to the circumstances of the case (Dig. 44. 14 pr.), or (c) equity in the modern sense, i.e. mitigation of strict law in accordance with a higher sense of justice (e.g. Dig. 1. 3. 25; 4. 1. 7 pr.; 15. 1.
The ius praetorium, which, as we have already seen, was contrasted by the Roman lawyers with the ius civile, though equally with it a part of the positive law of Rome, originated in the ius edicendi possessed by the higher magistrates. The distinction between magistratus maiores and minores was connected with the right to take the auspices; auspicia maxima might be taken only by consuls and praetors, on whom ' iustum imperium auspiciumque domi et militiae' were conferred by a lex curiata. The imperium carried with it also the ius decernendi; a magistrate invested with imperium had the right of issuing a decretum, of summoning a citizen (vcicatio) to appear before him by his lictors, of enforcing obedience to his orders by the strong arm of the law. Some of the magistratus minores, e.g. the tribuni plebis, had the ius prensionis, the right of arresting persons present before them and keeping them in detention; others had neither vocatio nor prensio. The praetor, however, who, as has been remarked, was the supreme judicial magistrate, and who by means of his ius edicendi was enabled to gradually develop a system of law in which the ius civile was eventually swallowed up, had little opportunity of modifying existing law, still less of introducing new rules, in the earliest period of his activity. This incapacity arose from the system of procedure (legis actiones) sanctioned by the Twelve Tables and somewhat expanded by later legislation; the forms of actions were rigidly prescribed by statute, and the magistrate had no power to directly alter or extend them; from the forms of actions only could a citizen deduce the rights which were guaranteed him by the civil law. The only mode in which the praetor could enforce a legal principle not contained in that law was by an exercise of his imperium; he could compel a party to enter into a wager (sponsio) with his adversary, and the fact upon which the wager turned could then be decided in a legis actio. This, for instance, was the origin of the possessory interdicts, and thus of the whole law of possession as distinct from ownership. But the praetor's real power to introduce new legal principles dates from the lex Aebutia (circ. B.c. 170) which (Gaius iv. 30) practically superseded the legis actiones in the majority of cases by a new form of procedure, by which the praetor was enabled to grant actions (actiones honorariae) not based on the civil law. He did this at first mainly by the employment of fictions; in the formula in which he indicated to the iudex the issue to be tried he referred to some rule of law already established, by analogy with which the present case was to be decided (Gaius iv. 32-38). Subsequently, becoming bolder, he habitually granted actions on grounds of which there was not even a shadowy recognition in the civil law, and whose formula consequently contained no reference to rules or principles which that law had established.:
As has been already observed, the form in which praetorian changes were made in the law was the edict. The higher magistrates of Rome had always possessed the ius edicendi, the right of issuing to the people public and imperative notices on matters which fell within their jurisdiction or formed part of their official business. The censors issued edicts relating to a coming census; the consuls in this way summoned the senate and the comitia, and Plautus speaks of edictiones aediliciae regulating the public markets. The praetor, as invested with the supreme civil jurisdiction, would naturally find the most frequent occasion for publishing such edicts, and it became usual for him, at the commencement of his year of office, to proclaim in this manner the principles which, apart from the established rules of the ius civile, he intended to observe in the administration of justice. Such proclamation was no small security for the impartial treatment of all suitors, and saved the citizen from the hardships of ex post facto legislation; it thus became a constitutional obligation of every praetor, on taking office, to state the general rules by which, as chief judicial magistrate, he should guide himself during the year. This edict, which he issued at the commencement of his administration, was called edictum perpetuum, because the practice was constant and unbroken, and was contrasted with edicta repentina, isolated orders made by the praetor during and not at the commencement of his year of office, and generally, though not always, relating to some specific case. The distinction between edictum perpetuum and edictum repentinum is thus not identical with Austin's distinction between law and particular command, for edicta repentina not uncommonly enounced a rule or principle of law; for instance, the edict .which the praetor Atilius (b.c. 213) directed against the encroachments of strange religions, though a 'law,' was yet an edictum repentinum. It also became usual for each successive praetor to adopt, in substance, the edict of his predecessor, with such additions, abrogations, and changes as he deemed expedient. Such part of his edict as a praetor derived from that of his predecessor in office was called edictum tralaticium. It was owing to this fact that, though the edict of each individual praetor had such an ephemeral validity, the praetorian law was at once so stable and yet so elastic. By the constant accretion of new rules which legal development and increasing commercial activity required, the edict assumed the form of a permanent body of law, which had the advantage of the ius civile in the ease with which it could be repealed, altered, or extended, and which, therefore, apart from other considerations, recommended itself as a mode of legislation in many ways preferable to that of the comitia.
The danger of entrusting to the caprice of a single individual so large a power of altering the law will strike every reader; but it had two very efficient safeguards. One of these was a strong public and professional opinion: the other was the short duration of the praetor's office. If one praetor ventured on innovations which were not approved by the people or the lawyer class, his successor could easily remove his obnoxious additions from the edict; for a year they would be binding, but beyond that they had not necessarily any validity. In point of fact, it would seem that each praetor framed his edict after careful consultation with his friends learned in the law, and that changes were but rarely introduced for which public opinion was not ready; the fact, already noticed, that each praetor always accepted a very large portion of the edict of his predecessor, a portion, indeed, which every year grew comparatively larger, as every year made the edict more complete, proves that the Roman praetors, as a class, were the best of conservatives. Cicero accuses Verres of having issued 1 edicta nova in re vetere,' and altered rules for which the constant acceptance of his predecessors had won the confidence and affection of the people; but we may believe that Verres had few imitators, and that, as a general rule, both parts of the edictum perpetuum—the part which was old and the part which was new—were alike viewed with approval by the mass of the people. Though, however, few were guilty of Verres' breach of faith, who, according to Cicero (in Verr. i. 46), in his judicial administration sometimes followed a course the very opposite of that which in his edict he had deliberately stated he intended to take, it seems that in the last century of the Republic it became very usual for the praetor to vary the rules stated in his edictum perpetuum by subsidiary edicts issued during his year of office. This violation of constitutional usage menaced the stability of the law, and accordingly was made illegal by a lex Cornelia (b.c . 67), 'aliam deinde legem Cornelius, etsi nemo repugnare ausus est, multis tamen invitis, tulit, ut praetores ex edictis suis perpetuis ius dicerent. Quae res cunctam gratiam ambitiosis praetoribus, qui varie ius dicere solebant, sustulit' (Asconius ad Cic. orat. pro Cornelio, cf. Dion Cassius xxxvi. 23).
The reference to Verres seems to make this a convenient place to describe how the number of praetors was increased, and to point out the bearing of this on the development of Roman law. As will be shortly seen, the large number of foreigners who established themselves at Rome for commercial purposes led (b.c. 247) to the appointment of a second praetor, called the praetor peregrinus, who administered justice at Rome as between foreigners or foreigners and citizens. This praetor also issued an edictum perpetuum consisting, as will be seen, of rules drawn from what was known as the ius gentium, a general law applicable to the Romans and to all people, which became binding for Romans inter se by being imported steadily, though gradually, from the edict of the praetor peregrinus into that of the praetor urbanus. The former edict may thus be regarded as an almost inexhaustible reservoir whence the praetor urbanus drew those streams of ius naturale by which the civil law of Rome was expanded and liberalised. When the territories of the state were extended beyond the limits of Italy new praetors were made. Thus, two were created, B.c . 227, for the administration of Sicily and Sardinia, and two more were added when the Spanish provinces were formed, B.C. 197. Sulla increased the number from six to eight, which Julius Caesar raised successively to ten, twelve, fourteen, and sixteen. Many of these, and also the consuls after their year of office, were entrusted with the government of a province; usually for a year, though the time was often prolonged. Such governors, whether proconsuls or propraetors, were invested with imperium and jurisdiction within the limits of their respective provinces, and presided there as completely over the administration of civil justice as did the praetor urbanus at Rome. Accordingly, provincial governors naturally adopted the practice of issuing, at the commencement of their term of office, an edictum stating the rules and principles which they should observe in the exercise of their jurisdiction. Hence arose a number of edicta provincialia, which we should have supposed consisted partly of rules