2. EDICTS OF MAGISTRATES

The power of higher magistrates to issue edicts has already been mentioned. From the edicts of those magistrates whose sphere included jurisdiction, and above all from that of the Urban Praetor, there derived the ius honorarium or magisterial law.

We have seen¹ that the sphere of the Praetor is the administra­tion of the private law between citizens. Within this sphere he can be said to have a particular and a general function. The particular function is the day-to-day control of litigation; the general function is the issuing of the Edict in which he sets out the circumstances and ways in which he will discharge his par­ticular function during his year of office. It is the general func­tion which gives him his importance as a source of law.

The general function of the Praetor.

¹ Above, p. 4. What follows is concerned with the Urban Praetor; for the Peregrine Praetor, see below, p. 23.

concept. The law is made up of rights (and correlative duties), and remedies are merely the procedural clothing of these rights. But this was not the approach of the Roman lawyer. He thought in terms of remedies rather than of rights, of forms of action rather than of causes of action. A claim could only be pursued in a court of law if it could be expressed in a recognized form. In the same way it has been said that it was with writs and not with rights that the older English law was concerned. The difference is of course mainly one of emphasis, but it has the important practical consequence that the man who controls the granting of remedies controls also the development of the law. In Rome that man was the Praetor. By creating a new form of action or extending an old form to new facts he could in effect create new rights. In form there was merely a new remedy, in substance there was new law.

For the first two centuries of his existence, however, this power of the Praetor lay dormant. A claim could be initiated only in one or other of five ritual modes recognized by statute {legis actiones).

The characteristics of this system were that for each cause of action there was an appropriate form of action, and that each action was expressed in a set of words or formula, which con­stituted the pleadings.¹ Thus, if there had been a contract of sale {emptio venditio) and the seller refused to deliver what he had sold, the buyer had an action on the purchase {actio empti), and conversely if the buyer refused to pay the price, the seller had an action on the sale {actio venditi); and each action had an appropriate formula in which the issue was defined. It was this principle that each cause of action should have its appropriate form of action which gave the Praetor his oppor­tunity. For obviously if he could create new forms of action he

¹ See further below, pp. 23 ff.

could thereby in substance create new causes of action; and the structure of the formula was such that it could comfortably accommodate any new action which he might thus create.

face="Times New Roman">Precisely how and when the formulary system was introduced is uncertain. The decisive step was evidently taken by statute— a lex Aebutia. What evidence there is suggests that this lex must have been passed in the first three-quarters of the second century b.c., and most probably towards the end of this period, but all that is certain is that in the last quarter of the second century the new system was in force, and with it the Praetor’s free power to create new actions.

The principal instrument by which the work of adaptation was carried out was the Praetor’s Edict. At the beginning of his year of office the Praetor issued an Edict which consisted of a series of statements of policy (themselves referred to as edicts). These individual edicts varied greatly in length and complexity and to some extent in grammatical structure, but the pur­pose of all was to define the circumstances in which the Praetor would exercise his power to grant new remedies.¹ In theory each Praetor’s Edict was independent of his predecessor’s and was valid only for his year of office, but obviously a system in which a substantial part of the law changed every year would be unworkable, and though in the earlier years there was no doubt a certain amount of experimentation, the main body of the Edict was carried over from year to year, successive Praetors making only such additions and deletions as seemed necessary.^{[1] [2]} In this way the Edict acquired the character, though not the form, of a legislative document, to be commented on and ex­pounded by the jurists. It must also have been the jurists who were substantially responsible for its contents, since the Praetor would not usually be learned in the law and would therefore rely upon the advice of those who were.¹ This natural inclina­tion must, moreover, have been reinforced by the Roman habit of consulting an informal council of advisers before making any important decision in public or private life.²

In addition to the statements of policy, the Edict contained pattern formulae for each of the remedies promised and also for those which already existed to enforce the traditional ius civile.

The publication of the Edict did not exhaust the Praetor’s power to innovate. He could at any time, if he thought fit, either on the facts of a particular case or on more general grounds, grant a new remedy. Such remedies would often pre­sumably be made permanent in the next year’s Edict.

The building of the Edict seems largely to have been com­pleted by the end of the Republic. In the first century of the Empire the initiative in the development of the law was in­creasingly left to the interpretative activity of the jurists and to the various forms of imperial intervention. It was indeed in­consistent with the emerging constitution of the Empire that a magistrate should have what amounted to legislative power, and it was, once again, in the reign of Hadrian that the new facts were openly acknowledged and given permanent form. The great jurist Julian³ was commissioned to make a final revision of the Edict, which thenceforth was not to be altered. The career of the Praetor as a source of law was thus terminated. The only way in which the ius honorarium could develop was by juristic interpretation of the words of this final Edict, or by the granting of new ‘Praetorian’ remedies by the Emperor.

¹For example, Cicero tells us that his friend Aquilius Gallus, who was a dis­tinguished jurist, ‘produced the formulae concerning dolus', which had a profound effect on the law. Aquilius Gallus did hold the rank of Praetor (in 66 b.c.), but apparently not as either Urban or Peregrine Praetor. He presumably ‘produced’ them in his capacity as jurist.

²   Cf.

The Urban Praetor’s Edict was not the only source of ius honorarium. The Peregrine Praetor also issued an Edict, and many of the features which we find in the Urban Praetor’s Edict may well have originated in that of his colleague. For the Peregrine Praetor, since he did not work within the framework of the traditional law, must have built faster and more freely than the Urban Praetor. But any statement about the content of the Peregrine Edict must be conjectural, since no part of it survives and even indirect evidence is very slight. Our knowledge of the Urban Edict derives from the extracts from juristic commentaries on it which make up a substantial part of Justinian’s Digest, and which often quote the actual words of the provision on which they are commenting. Of the commentaries on the Peregrine Edict, however, no fragments survive, and the reason for this must be that after the almost universal grant of citizenship in a.d. 212¹ it ceased to have any practical relevance.

We know equally little about the Edicts by which provincial governors extended the ius honorarium to the Roman citizens living in their provinces. Gaius wrote a commentary ‘on the Provincial Edict’, and from the use of the singular we must infer that there was at any rate a substantial part which was common to every Governor’s Edict. The few fragments of this comment­ary which survive in the Digest do not suggest any marked divergence from the Urban Edict. Of the Curule Aediles’ Edict, on the other hand, we are relatively fully informed, but its importance was confined to the contract of sale and to a special provision concerning liability for animals. For all these reasons it is convenient here to confine our attention to the ius honorarium which derived from the Urban Edict.

The particular function of the Praetor. The Praetor’s day-to-day function was the granting of remedies in individual cases. In any system of litigation there must be something to correspond to what the English lawyer calls pleadings, some method of ensur­ing that the issues between the parties are clearly defined before the actual trial begins. In the formulary system the place of pleadings was taken by the formula. The proceedings in an action were divided (as they had also been under the system of legis actiones) into two stages. The first took place before the

¹ See above, p. 18.

Praetor (in iure) and was devoted to the drawing up of the formula, and the second took place before a iudex or lay arbitrator (apud iudicem) and was devoted to the trial of the issues set out in the formula. The Praetor’s function was therefore not to try the action but to satisfy himself that it could be expressed in a formula included in his Edict, or, exceptionally, to grant a new formula to meet the facts of the case. The formula consisted essentially of a direction to the iudex to condemn the defendant if he found the plaintiff’s case proved and to absolve him if he did not. An example will make this clearer.

Let us suppose that the plaintiff’s claim is that the defendant promised by stipulatio (the principal formal contract of the ius civile)¹ to pay him 10,000 sesterces and that the defendant has not done so. The parties appear in iure, no doubt with their legal advisers. The plaintiff then asks for the grant of the appropriate action, the condictio certae pecuniae, the formula of which, as set out in the Edict, runs as follows: ‘Let X be iudex. If it appears that the defendant ought to pay 10,000 sesterces to the plaintiff, let the iudex condemn the defendant to pay 10,000 sesterces to the plaintiff. If it does not so appear, let the iudex absolve him.’^{[3] [4]} If the defendant’s answer is a simple denial that he owes the plaintiff the sum stated (either because he never made the stipulatio as alleged, or because he has already paid the debt, or for some other reason recognized by the ius civile) he will simply accept the formula, since his answer is contained in its last sentence: ‘It does not appear.’ He may, however, wish to allege a circumstance which, although it does not by the ius civile invalidate the stipulatio, does according to the Edict afford a ground for the grant of a Praetorian plea in bar of the action (exceptio). For example, he may wish to assert that the plaintiff subsequently agreed that he need not pay the debt. Such a bare agreement (pactum) had no effect under the ius civile’.^[5] the defendant should have secured a formal release (acceptilatio).² It was, however, a recurrent theme of Praetorian policy to give effect to the intention rather than the form of an act, and the Edict in circumstances such as these promised an exceptio pacti to bar the plaintiff’s enforcement of his right. For this, there­fore, the defendant will now ask, and the enlarged formula will run: ‘If it appears that the defendant ought to pay 10,000 sesterces to the plaintiff, unless there was an agreement between the plaintiff and the defendant that the money should not be claimed, let the iudex condemn’, &c., as above. Once again, if the plaintiff’s reply to this exceptio is a simple denial, nothing further need be added to the formula; but if he in turn wishes to raise a countervailing plea recognized in the Edict, this will be inserted as a further conditional clause (replicatio) following on the exceptio, ‘or unless...’. To this the defendant may add a still further reply, still in the same grammatical form, and so forth until each party’s case is fully stated.³ When the pleadings are thus completed the iudex is chosen by agreement between the parties from an official list of well-to-do laymen who under­take this function as a public duty. The whole formula is then put into writing and finally approved by the Praetor. This is the moment of joinder of issue (litis contestatio), i.e. the moment by reference to which the issues between the parties must be decided and after which there can be no alteration of the plead­ings and no fresh action on the same issue.

At some time after litis contestatio the hearing of the case by the iudex took place. The parties were represented by advocates and adduced evidence, either documentary or oral, but there were no such strict rules of evidence or procedure as govern the trial of an English action. Within the limits of the formula the iudex had a wide discretion. He was judge of both fact and law, and took what advice he chose in arriving at a decision. Since he was not a jurist, he would be guided in matters of law by the opinions of those who were.⁴ His decision was binding as between the parties, but since the Roman law knew no system of prece­dent, it had no wider significance.

Character of the ius honorarium. Papinian, in a famous definition preserved in the Digest, declares that the Praetorian law supports, supplements, and corrects the ius civile. It cannot directly alter or abrogate it, for the Praetor, as we have seen, has no legislative power. He supports the civil law¹ by giving on occasion a more effective remedy; he supplements it by giving a remedy in circumstances when the civil law is silent; most importantly he corrects it, and this he does either, as in the case which we have just considered, by merely granting an exceptio to bar the enforcement of a civil law right, or, more extensively, by both denying a remedy to a person who is entitled by the civil law and giving a remedy to a person who is not. In substance he has made law, but in form he has merely barred or created a remedy. The difference is primarily one of pleading and of the formulation of remedies. Thus, in the example we have just considered the Praetor has in substance declared that a right created by stipulatio is extinguished by a subsequent agreement not to sue, just as the civil law declares that it is extinguished by acceptilatio, but there is a difference in pleading. If the defendant wishes to allege an agreement not to sue he must plead it expressly by way of exceptio, whereas if he wishes to allege an acceptilatio he need not, since in that case there is no longer any debt. Similarly, where the Praetor gives an action to a person who has no right by the civil law, it has to be so formu­lated, often by the use of a fiction, as not to allege that the plain­tiff has a right. These are technical matters, but in a system as dominated by its forms of action as the Roman they colour the whole formulation of the law and make it necessary to state both the civil law and the Praetorian modification of it, rather than simply their combined result. Moreover, on occasion the distinction between civil and Praetorian law has consequences which are more than merely technical. One such occasion may be mentioned here by way of example. By the civil law the ownership of a slave could only be transferred by a formal conveyance and not by a simple delivery.^{[6] [7]} If therefore A sold and delivered his slave to B but omitted the formal conveyance, no ownership could pass, and by the civil law A could claim the slave from B or from anyone else into whose hands he might come. The Praetor, however, giving effect to intention rather than to form, would bar A’s action against B and would also give B an action against A or anyone else who was in possession of the slave. In other words, B had the remedies of an owner and A had not. For most purposes, therefore, it is substantially correct to say that B is the owner; but not for all. If B were to manumit the slave, his act would have no effect by the civil law. For only an owner could manumit, and A was still the owner. The Praetor could indeed prevent B from going back on his act by asserting title to the slave, but he could not give to the slave the legal rights of a free man.¹

Actions and procedure of the late law. When, with the consolidation of the Edict by Julian,² the general function of the Praetor lost its importance, the particular function none the less continued. But already there was growing up beside the formulary system another system of procedure more akin to those found in the modern world and more congenial to the increasingly bureau­cratic character of the Empire. The characteristic features of the formulary procedure were that the trial was divided into two stages and that it was in form a voluntary submission to arbitration in which the only part played by the state was the approval of the formula and of the appointment of the iudex. There was no direct state enforcement of the appearance of the parties or of the execution of the judgment, and there were no professional judges. In the new, ‘extraordinary’, procedure (cognitio extraordinaria} all this was changed. The magistrate, either in person or through an official delegate {iudex pedaneus}, heard the whole case and took steps for the enforcement of his decision. The formula gave place to an informal system of plead­ings. This new procedure was introduced at first only for par­ticular purposes. For example, when Augustus decided to give effect to informal testamentary trusts {fideicommissa'y he entrusted their enforcement to the consuls, and later a special Praetor

¹              See below, p. 74, n. 1. There is an obvious parallel between the Praetor’s control of the formula and the early English Chancellor’s control of writs, and to a more limited extent between the ius honorarium and English Equity. See Buckland and McNair, Roman Law and Common Law (2nd edn.), pp. 4-6.

²                                                                                                                                                                                                                                    See above, p. 22.   ³ See below, p. 267. fideicommissarius was appointed. By the beginning of the Domi­nate, however, the formulary system had disappeared and the ‘extraordinary’ procedure alone survived. But the law had taken shape in the mould of the formula and of the contrast between the ius honorarium and the ius civile, and to recast it would have required a greater zeal and capacity for reform than were to be found in the late Empire. Justinian did indeed cut away much that was obsolete, but, as we shall see, the very method and purpose of his compilation was incompatible with any radical reform. Hence it is that just as the English lawyer still very largely thinks in terms of the forms of action which were abolished a century ago, so also the greater part of Justinian’s law is intelligible only in terms that had lost their practical importance two hundred and fifty years before.