§ 15. engine best fitted for effecting this reform—a task as important as it was difficult. As the edict was never valid for more than one year, it was a convenient instrument for giving new principles a trial. If the innovations did not answer, they could be dropped again at once. The praetors in general showed little taste for the sudden adoption of far-reaching general principles. They confined themselves rather, in the first instance, to laying down rules for a perfectly definite case, the conditions of which were clearly apprehended. The next praetor might then add some further clause to the edict of his predecessor, the third might take yet another step in advance, and so on. It was precisely on account of this objection to far-reaching generalizations that they always hesitated to strike out anything that had once found its way into the edict. They preferred the method of adding a second concrete case to the first, a method which had this further advantage that it secured accuracy of verbal expression,-an important consideration, since the praetorian edict, like the statutes, was interpreted according to its letter. Thus there grew up in the edict a kind of code of private law; on the face of it, a collection of rules on the granting of actions, admission of pleas, and so on, couched, moreover, in a style, which was not exactly Ciceronian, nor even pleasant to read. Nevertheless it was by means of this code, with all its old-fashioned jargon and cumbrous phraseology, that the wisdom, experience, and foresight of bygone ages were handed down from generation to generation. It was a code which combined conservatism with a ready susceptibility of change, thus standing at the same time firmly rooted in the experience of the past and the life and movement of the present. Praetorian law, in the shape it assumed in the edict, was not, strictly speaking, law, but the power involved in the right to allow or disallow actions and other legal remedies virtually raised it to the position of law. Thus we find Cicero declaring that even at his time the edict was felt to be a kind of law'. The praetorian law, being a law made by officials ('jus honorarium '), was opposed to the jus civile, i. e. law in the strict and proper sense of the term, the law 'Qui plurimum tribuunt edicto, praetoris edictum legem annuam dicunt esse' (in Verrem, II. 1. 42). made by the people. Thus both the jus civile' and the jus § 15. honorarium' contained elements of jus gentium, but in the jus honorarium the influence of the jus gentium predominated. The praetorian edict was, in the main, the instrument by means of which the free principles of the jus aequum gained their victory over the older jus strictum. Though at first the praetorian law may merely have served the purpose of giving fuller effect to the jus civile (juris civilis adjuvandi gratia), and then of supplementing the jus civile (juris civilis supplendi gratia), nevertheless, in the end, borne along by the current of the times, it boldly assumed the function of reforming the civil law (juris civilis corrigendi gratia). § 16. The Dual System of Law. The development of the jus honorarium resulted in the establish- § 16. ment of a dual system of law in Rome. In every department of the law, but more particularly in private law and in civil procedure, an antithesis arose between law in the strict and proper sense (jus civile) and law made by officials (jus honorarium). Thus, according to the jus civile a res mancipii (res mancipi) could not be validly alienated by act of the parties without the form of mancipatio. Part of the ceremonial of mancipatio consisted in 'manu capere,' the taking hold of the thing by the purchaser (supra, p. 50). No doubt this 'taking with the hand' had originally a distinct significance, its object being to enable the purchaser to We are here using the term jus civile in its wider sense as signifying the positive law of Rome simply, the law which applied to Roman citizens, whether it be jus civile in the narrower sense (of law peculiar to the Romans) or jus gentium, i. e. law which originally only applied to aliens, but was extended by usage to Roman citizens. When opposed to jus honorarium, jus civile means all such portions of the law of Rome applying to cives Romani as were law in the strictest sense of the term, being based on statutes enacted by the Roman people or on Roman customary law. The difference between jus civile (in the narrower sense) and i. e. the law which is only law in § 16. get actual control over the thing. But gradually as the jus civile was developed by the 'interpretatio,' the 'manu capere' dwindled into an empty form. The mancipatio as such ceased to give possession of the thing mancipated and its effect was only to pass ownership. By the civil law the transfer of possession (traditio) had become quite immaterial as far as the transfer of ownership was concerned. The praetor however reversed the position by making the traditio the essential feature in the transaction in regard even to res mancipi. Where a res mancipi-such as a slave or a fundus Italicus-was sold and informally delivered into the possession of the purchaser, the latter did not become owner according to the civil law. But if the matter came before the court, the praetor would treat him just as if he were the true owner. The praetor could not make a man who had acquired a res mancipi by mere traditio full civil law owner (ex jure Quiritium), for the praetor had no power to alter the legal force of the civil law. But he could grant actions and defences to such persons as he thought fit to protect, since the practical application of the civil law was under his control. Though a person who had acquired possession of a thing by mere traditio was not the formal owner, still the effect of the praetorian action and defence (actio, exceptio) was that he held the thing 'in bonis,' so that no one could deprive him of it. Thus to the civil law rules of ownership the praetor opposed another set of rules, the praetorian rules, and to the quiritary ownership of the jus civile he opposed another kind of ownership, where the thing was said to be 'in bonis,' the so-called 'bonitary ownership.' (Cp. infra, § 62.) According to the civil law again a servitude-that is, a right of user of a particular kind in a thing not one's own, e. g. a usufruct or a right of way-could only be created by means of certain definite legal forms. The praetorian law, on the other hand, allowed a servitude to be created by a so-called 'quasi traditio servitutis'; that is, it was satisfied if one party gave the other, without any form, permission to exercise the right of user in question (infra, § 69 IV). In the civil law again a pledge, in the proper sense of the term, was an unknown transaction. If a creditor was to have real security, he had to be constituted owner of the thing pledged. § 16. The praetor however introduced a right of pledge as a distinct right apart from ownership. He granted the creditor a real action on the ground of a simple agreement with the debtor that a particular thing should serve as a pledge for the debt (infra, § 72). In this way the jus honorarium brought about a fundamental reform in the rules, not only as to ownership, but also as to jura in re aliena. Where a juristic act was obtained from a person by means of threats (metus) or by fraud (dolus), the civil law treated the act, as a rule, as valid, notwithstanding the threats or the fraud. The praetor however took account of the metus or dolus in all cases by granting the aggrieved party an action or a defence, as the case might be. The civil law and the praetorian law accordingly took opposite views of a liability incurred by means of a promise, which, though made in due legal form, was in fact obtained as a result of threats or fraud. The civil law regarded such a promise, as a rule, as perfectly valid; according to the praetorian law it was always invalid. There were other facts again-such as an informal agreement of release (pactum de non petendo)—which the debtor could not rely on as a ground of discharge according to the civil law, because the civil law treated them on principle (like metus and dolus) as irrelevant in themselves; whereas the praetorian law, on the contrary, held that they constituted, in themselves, a relevant defence. Moreover, while there were, on the one hand, certain facts which the praetor treated as grounds for discharging an obligation, there were others again which, by virtue of the praetor's jurisdiction alone, came to be treated as creating an obligation. That is to say, by granting an action, the praetor gave legally binding force to certain transactions which were not actionable according to the civil law, such as the constitutum debiti, or informal promise to pay a subsisting debt'. Let us take another example. The praetor had no power to make a man heres who was not heres by the civil law. But his office gave him control over the so-called 'bonorum possessio'; * Cp. § 84, II. § 16. that is to say, it lay with him, in the exercise of his jurisdiction, to determine who should be put into possession of a deceased person's property. The practice of the praetors in awarding or refusing the possession of an estate thus became the foundation on which a new system of hereditary succession (which of course only gave rise to bonitary rights) was built up, viz. the praetorian system of bonorum possessio (infra, § 110). These are merely some of the most salient points illustrating the antithesis under discussion. But they will suffice to convey some notion of the far-reaching influence of the jus honorarium as an engine of reform. The jus honorarium was gradually developed into a complete legal system. It confronted the system of the jus civile as a compact whole, as a new body of private law made by officials, in which the legal ideas of the jus gentium found expression. It must not however be supposed that any part of the jus civile was abolished. The legal force of the jus civile remained absolutely untouched. The only way the jus honorarium could be given effect to was through the medium of legal procedure, i. e. by actiones and exceptiones3. Jus civile and jus honorarium existed side by side. It is to this dualism that we must attribute the high pitch of artistic perfection to which the Romans carried the technique of their law. The two bodies of law, the jus civile, or law in the strictest sense (which it was always possible to fall back upon, if the justice of any particular case seemed to require it), and the jus honorarium, the law declared and acted on by the courts, were welded into a great unity covering a rich multiplicity of detail-a complicated, but orderly structure, operating with the subtlest of means and demanding for its complete mastery the fullest exercise of the intellectual faculties. The strength and artistic skill displayed by the praetorian edict are the immediate source of the strength and artistic skill which characterize the scientific jurisprudence of the early Empire. As to the development of the praetorian law of civil procedure, see infra, § 49. * In exceptional cases by in integrum restitutio, infra, § 56 iii. |