THE HISTORICAL DEVELOPMENT AND THE COMPILATION OF THE EDICT

§ 151 Festus, De verborum significatu ’possessio'

Possession is, as deltas Gallus defines, a certain (right} to the use of land ora building. Therefore, no one who ventures to declare that possession is his may sue by statutory actions, but rather relies upon the interdict which the praetor frames in these words: 7 forbid force to be employed against a situation to pre-

14.

Cf. Jolowicz-Nicholas, Introduction 248-55.

15. Cf. Lend, Edictum 219(| 89) and 270 ff. ($ 103).

16. Wieacker, R0tn. Recht 113.

17. Hübner, Gedächtniuduifi Peters 97—110.

18. Infra, chap. XII, { 177.

vent one ofyou so possessing against the other as you now possess the plot which is the subject of controversy, provided you possess neither by force nor secretly nor on sufferance.^[1020]

Ulpianus, Libro LXIX ad edictum (D. 43.17.1 pr.)

The praetor says: 7 forbid force to be employed to prevent one of you so possessing against the other as you possess the buildings which are the subject of controversy, provided you possess neither by force nor secretly nor on sufferance. '

G ELLius, Noctes Atticae XL 17.1-2.

As I happened to sit in the library of Trajan's temple looking for something else, some edicts of earlier praetors fell into my hands and I decided to read and study them. Therein I found written in an older edict: Tf any of those who have undertaken publicly to clear the rivers of nets shall be brought before me and it is alleged that he had not done what was required of him to do by the terms of his contract to do. ’ Upon this it was queried what ‘clearing of nets' meant.

In spite of the extreme importance of the edict of the praetor as a source of the Roman classical law there has been relatively little attention paid by modern scholars to the development of the edict through the centuries to the achievement of its final form in the age of Hadrian.

The extensive commentaries on the edict subsequent to that time provided Romanists with such a broad picture of the tus honorarium that the evolution of the edict itself seems to have been a matter of secondary interest.

The earliest significant effort in the history of the edict is the study by Dcrnburg on the age of the individual provisions of the edict.¹ There exist relatively few fixed dates for the introduction of particular edicts. Dern- burg, however, believed it was possible to classify all edicts into three groups, distinct in periods of time, according to the style of language employed. He detected (1) as the oldest group of edicts those containing two separate statements: the first setting forth the norm, e.g., 'that one should not (ne quis) do so-and-so', or 'That something should not (ne quid) be done’, and the second prescribing the action that would follow if the rule was violated. There were (2) other edicts, later in time, containing a single direct pronouncement, e.g., ‘if someone (si quis) has done so-and-so’, or ‘if something (si quid) has been done, I (praetor) will grant an action’. Finally, (3) edicts introduced still later in time were also set forthin a single pronouncement but indirectly, assertively (dicetur, it is alleged), e.g,, ‘against one who is alleged to have done so-and-so, I will grant an action’.¹ Dernburg conceded that in the compilation of the edict in the time of Hadrian the text of some edicts may have been simplified or abbreviated in language,^J but he does not seem to have seriously considered the fact that one style of edict may have been substituted for another at an earlier date.

Another question which was touched upon by Romanists was the extent to which Julian, in the compilation of the edict in Hadrian’s time, departed from the arrangement which had existed prior. As noted above (supra, § 149), Wlassak concluded that the jurist distributed the formulae, which up to that time had been collected in an appendix, throughout the edict.^[1021] ^{^[1022] ^[1023] The formulae for praetorian actions were subjoined to the edict which provided the relief, while the formulae for civil actions were scattered throughout the Edictum Perpetuum at appropriate places.}

In a short article Ferrini compared the comment of pre-Hadrianic and post-Hadrianic jurists upon the edict and concluded that Julian had not departed to any extent from the arrangement of the substance of the edict of earlier times.^[1024] ^{^[1025] Girard pointed to an earlier text, that of Probus, De notis iuris (On Legal Abbreviations), which contains a section on abbreviations in the edict, and by its omission of any abbreviations for formulae in the body of the edict, confirms Wlas- sak’s view that the formulae were gathered together in an appendix to the edict prior to Julian.· In 1930 Weiss re-examined the whole question of how far Julian depended on earlier texts in framing his version of the edict.^[1026] ^{^[1027] ^[1028]} In spite of the fact that the major portion of the edict is very old (edictum tralaticium, handed down), the edict underwent considerable change at the hands of Julian, including apparently the distribution of the formulae throughout the work, as noted earlier.· Attention has recently been turned to the historical evolution of the edict in two studies in English, by an Irishman and a Scot. The portions of the edict earliest in time were those which were directed to the facilitation of litigation, according to Kelly? In a second stage the edicts provided for the establishment of rules in steps in litigation where the ius civile had furnished no norms. Then, in a final stage, the edicts were meant to supplement and correct the civil law. Kelly thus sees the evolution of the edict as progress from adjective to substantive law.^[1029] Further, he notes that Dernburg failed to consider that the language of the edict may have been substantially changed over the years, so it is not possible to correlate his own findings with the data of Dernburg.¹¹ He also stressed the fact that, due to traditional respect for legislation by the Romans, edicts which display radical changes in the civil law on the part of the praetor were not introduced until after the popular assembly ceased to enact statutes, c.
125 B.C.^[1030] ^{^[1031] ^[1032] Some years later, Watson also recognized distinct stages in the development of the edict.* * At the earliest time (at the end of the 3rd century B.C.) edicts concerning private law were directed to altering the measure of damages in process, and possibly other procedural devices. By the middle of the 2nd century B.C., changes in substantive law were achieved by the introduction of new actions, praetorian as well as civil. Three decades later edicts were introduced which altered the ius civile and by 100 B.C. edicts provided actions which resulted in completely new legal institutions. The culmination of edicta! growth occurred in the following decades, though edicts continued to be framed up to the time of Julian.^[1033] ^{^[1034] Watson further believes Kelly’s suggestion that the development of the edict was ’progress from adjective to substantive law’ is extremely plausible, but thinks that Kelly errs in taking the view that statutes on the private law are not to be found after 125 B.C.; the relation of lex to edictum in the republic has not as yet been satisfactorily resolved. ” Aurelius victor, De Caesaribus 19
He (Julian) first arranged the edict which diversely and confusedly was set forth by the praetors, in titles.
Imperator caesar flavius IUST1N1ANUS... Ad amplissimum senatum poptdumque et mines orbis terrarum nostri dvitates (D. Const. Tanta 18/Dcd. 18)
lulianus himself, that most acute framer of laws and of the Perpetual Edict... (Ded. 18) And besides Hadrianus of pious memory, when he compiled the annual laws of the praetors in a small booklet, calling to his aid the worthy lulianus....
Ulpianus, Libra XLI ad edidum (D. 37.9.1.13)
If a father shall have emancipated his son while his daughter-in-law is pregnant, the unborn child ought not to be wholly excluded (from succession). For, after birth, it is wont to be joined with the father according to the new edict....
Cosentini, Studi Solazzi 219» 230, takes ‘new edict’ to refer to the last years of the republic, the last edict in time in the title on ‘possession of property contrary to the will*.
Marcellus, Libro IX digestorum (D. 37.8.3)
... A grandson remaining in the potestas (power, of his grandfather) ought to be given (praetorian) possession of the property, because, if his father who had been emancipated was pretermitled, he together with him (grandson) can take possession of the property by reason of the chapter of the edict which had been introduced by lulianus, that is, by the new clause, nor ought he be in a worse position because his father had disinherited him....
Weiss, SZ 50 (1930) 249,260f., takes [that is, by the new clause] as a gloss.
There was little change in the edict during the early Principate. What little found is due to the effort of the praetor to provide relief in accord with leges or senatus consulta proposed at the instigation of the emperor, ’* Eventually the power of the praetor to alter the established edict was curtailed by the emperor Hadrian. The accounts of this effort are relatively few in number and leave much in doubt. It seems that Hadrian entrusted the jurist Julian with the revision or consolidation of the edict; the compilation of the edict, as it is generally termed, was confirmed by a senatus consultant at the request of the emperor.^[1035] ^{^[1036] ^[1037] ^[1038] The whole idea of a revision or compilation of the edict was, and still is, vigorously denied by Guarino, because of the silence of contemporary authors, the failure of the jurists to take account of such an important milestone, the impossibility of Julian having engaged upon such an enterprise, among other reasons.¹’However, the objections of Guarino have been answered,¹’ and scholars accept the consolidation of the edict by Julian, though the details remain obscure. There had been a}
§ 151 good deal of speculation as to the exact time during Hadrian's rule when the edict was compiled, but a numismatic clue by Vogt afforded the date, not before 130 A.D., and most likely between 134 and 138 A.D.²⁰
The extent io which Julian altered the earlier versions of the edict is generally considered to have been minimal.
The possible distribution of the formulae throughout the edict has been mentioned earlier. The reference to ‘new edict' and 'new clause' would seem to indicate that although Julian introduced new matter into the edict, the manner in which the references are made suggests that Julian’s changes of substance were few.²* It has been said that Julian made a correction in the text of one edict,¹² and there seems to have been simplification as well as abbreviation of the language of the text.²² The compilation of the edict brought an end to the power of the praetor to make any changes in the text thereof. Pringsheim sought to demonstrate that the term edict urn perpetuum came to mean 'unalterable' edict in the time of the Severi, in the usage of the imperial chancellery, and that this phrase was not employed by the classical jurists, hence interpolated where it occurs in the Digest.²⁴ But there is ample evidence that the norms of the institutions fostered by the edict were frequently altered in post-Hadrianic times, though the form of the edict remained without change. The edict itself was still published each year when the praetor took office, and the ius honorarium continued to be a most prominent segment of the private law, even though there is evidence that the contrast ius civile-ius honorarium was beginning to fade?⁵ The changes in the substance of the praetorian law were due to the efforts of the jurists—in part presented in the decreta (decisions) of the praetor in individual cases under the formulary procedure,¹⁴ in part by the enactments of the emperor, some of which also may have been drafted by jurists.
Along with the codification of the urban praetor’s edict, it may be assumed that Julian was charged with the same tasks for the edicts of the
20. Vogt, Festschrift Schulz 11 193, 199 f. D’Orgeval, L'empireur Hadrien 47 f„ fixes upon 137 A.D. In accord with 134-38 A.D.: Boulard, L. Salvius Miaous 40-44; Chiazzese, Introduzione 200 n.2; Frezza, Storia 451. Others still refer to c. 130 AD.: Kunkel, Introduction $2; Duickdt-Schwarz, Rechtsgeschichte 146.
21. Kaser, Festschrift Schult II 21, 66, and Rom, Privatrecht I 699. Cosentini, Studi Soiaszi 219-31, does not believe that the edict referred to inD. 37.8.3 andD. 37.9.1.13originated with Julian.
22. Cf. Lend, Ediaum 243.
23. Demburg, Festgabe Heffter 98 f.; Kaser, Festschrift Schuh II 21, 68.
24. Pringshdm, Symbolae Lenel 1-39 [ - Abhandlungen I 102-30]; cf. Jolowicz-Nicholas. Introduction 357 n.3.
25. Krüger, Geschichte 100 f.; Jolowicz-Nicholas, Introduction 357; see infra, chap. XII.
26. Cf. Boulard, Sahrius Julianas 55, 190 if.
peregrine praetor and the curule ediles, for these magistrates would not have retained powers which were withdrawn from the urban praetor?’ The fate of the provincial edict has been referred to above (supra, § 148 i.f.).
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Source: Schiller A.A.. Roman Law: Mechanisms of Development. Mouton Publishers,1978. — 606 p.. 1978

THE HISTORICAL DEVELOPMENT AND THE COMPILATION OF THE EDICT

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