of legis actiones. The one regulating procedure in private suits at
Rome must have been a somewhat comprehensive statute, as a
passage in the Vatican Fragments refers to a provision of its 27th
section; and our ignorance of its contents therefore, beyond one or
two trifling details, is the more to be regretted. The opinion 'of
Wlassak, already referred to, is that the judiciary laws made
procedure by formulae compulsory, while the Aebutian law had left
it optional. In all cases remitted to a unus judex or other private
judges a formula was to be henceforth compulsory; a legis actio
could no longer be tried before private judges but only exceptionally
by the centumviral court.[1]
From the time of Tiberius onwards it was the senate that did the work of legislation, for the simple reason that the comitia Legislation of Senate. were no longer fit for it. And very active it seems to have been. This may have been due to some extent to the fact that so many professional jurists, aware from their practice of the points in which the law required amendment, possessed seats in the imperial council, where the drafts of the senatusconsults were prepared. It was the senatusconsults that were the principal statutory factors of what was called by both emperors and jurists the jus novum—law that departed often very widely from the principles of the old jus civile, that was much more in accordance with those of the Edict, and that to a great extent might have been introduced through its means had not the authority of the praetors been overshadowed by that of the prince. In the end of the 2nd and the beginning of the 3rd century the supremacy of the latter in the senate became rather too pronounced, men quoting the oratio in which he had submitted to it a project of law instead of the resolution which gave it legislative effect. No doubt such project must have been carefully considered beforehand in the imperial council, and rarely stood, in need of further discussion; but the ignoring of the formal act that followed it tended unduly to emphasize the share borne in it by the sovereign, and made it all the easier for the emperors after Severus Alexander to dispense altogether with the time-honoured practice.
The Consolidated Edictum Perpetuum.—The edicts of the praetors, which had attained very considerable proportions before the fall Julian's Edictum. of the Republic, certainly received some additions in the early Empire. But those magistrates did not long enjoy the same independence as of old; there was a greater imperium than theirs in the state, before which they hesitated to lay hands on the law with the boldness of their predecessors. They continued as before to publish annually at entry on office the edicts that had been handed down to them through generations; but their own additions were soon almost limited to mere amendments rendered necessary by the provisions of some senatusconsult that affected the jus honorarium. They ceased to be that viva vox juris civilis which they had been in the time of Cicero; the emperor, if any one, was now entitled to the epithet; the annual edict had lost its raison d'être. Hadrian apparently was of opinion that the time had come for writing its “explicit,” and giving it another and more enduring and authoritative shape, binding on all future magistrates. He accordingly, it is said, commissioned Salvius Julianus to revise it—or Julian, when urban praetor, may have done so at his own hand with the emperor's approval—and the senate gave it binding force. It did not, however, become statute law; the distinction between jus civile and jus praetorium still continued.
The revised Edict unfortunately, like the XII. Tables, is no longer extant. It is only a very slight account we have of the revision—a line or two in Eutropius and Aurelius Victor, and a few lines in two of Justinian's prefaces to the Digest. We may assume from what is said there that both abridgment and rearrangement of the edicts of the urban praetor took place, but the question remains how far Julian consolidated with them those of the peregrin praetor and other officials who had contributed to the jus honorarium. Those of the curule aediles, we are told, were included; Justinian says that they formed the last part of Julian's work; they formed, in fact, a sort of addendum to it. There is reason to believe that so much of the edicts of the provincial governors as differed from those of the praetors were also incorporated in it, and that the edicts of the peregrin praetors, in so far as they contained available matter not embodied in those of their urban colleagues or the provincial governors, were dealt with in the same way.[2] The consolidation got the name of Edictum Perpetuum in a sense somewhat different from that formerly imputed to edicta perpetua as distinguished from edicta repentina; it became perpetual in the English sense of the word. Sanctioned by senatusconsult and by the emperor, it became a closed chapter so far as the praetors were concerned; for, though it continued for a time to hold its place on their album with its formularies of actions, they had no longer any power to alter or even perhaps make additions to it. Having ceased to be a mere efflux of their imperium and become a type prescribed by statute, its interpretation and amendment were no longer in their hands but in the hands of the emperor.
The Julian Edict was not divided into parts or books like Justinian's Digest but only into titles, which were perhaps numbered and certainly were rubricated. Since the publication of Lenel's great work, noted below, modern Romanists are agreed that the formularies of actions it contained were distributed in their appropriate places throughout the work and not collected together in one place as used to be supposed. Thus a formula based on the civil law (e.g. the rei vindicatio) appeared by itself (i.e. without any edict) as a separate head or subdivision of the title appropriate to it; while formulae based on the praetor's imperium (e.g. that of the praetorian action de dolo) were placed under their respective edicts. The general arrangement of the subject-matter is not difficult to discover, as we have documentary evidence to a certain extent in writings which have come down to us. These are principally (1) the Digest of Justinian, in the prefaces to which we are told expressly that it followed the order of the Edict except in certain places specially noticed; (2) the Code of Justinian; (3) the extracts from divers commentaries on the Edict by the classical jurists principally preserved in the Digest. As the inscriptions of these extracts contain the name of the author, the work and the particular book from which they are taken, they have proved of great help towards understanding the arrangement—especially the commentaries of Ulpian and Paul on the urban edict and the commentary of Gaius on the provincial edict. Lenel has shown that Julian's plan of arrangement was neither logical nor symmetrical, but adhered in great measure to the old order (tralatitious) of the urban praetors. The following fourfold division of the subject-matter is, according to Lenel (partially following Rudorff), clearly ascertainable: first, a series of titles dealing with the preliminary steps in all actions such as jurisdiction, summons, intervention of procurators and the like; second, titles dealing mainly with matters of ordinary procedure or rather with actions granted principally in accordance with statute (judicia legitima) as petitio hereditatis, rei vindicatio, &c.; third, titles dealing with actions resting principally on the magistrate's imperium (judicia imperio continentia); fourth, execution of judgments, including bankruptcy, &c. These four parts were followed by a kind of appendix containing in three titles the separate styles of interdicts, exceptions and praetorian stipulations. Finally, the edicts of the curule aediles, with their formulae also consolidated, were added at the end of the work. From the fragments of the jurists preserved by Justinian (principally from the three above-mentioned commentaries, but also to an important extent from Julian himself in his Digesta) repeated attempts have been made in modern times to reproduce the Edict in its entirety. Most of these are mere transcripts with attempted reconstructions of passages in Justinian's Digest and of little value. The only really scientific and worthy critical efforts are those of Rudorff in 1869 and, above all, of Lenel in 1883.[3]
The Responses of Patented Counsel.—The right of responding under imperial authority (jus respondendi ex auctoritate principis), Responses of Patented Counsel (juris consulti). first granted by Augustus and continued by his successors down to about the time of Severus. Alexander, did not imply any curtailment of the right of unlicensed jurists to give advice to any one who chose to consult them. What it did was to give an authoritative character to a response, so that the judge who had asked for it and to whom it was presented—for the judges were but private citizens, most of them unlearned in the law—was practically bound to adopt it as if it had emanated from the emperor himself. It may be that Augustus was actuated by a political motive—that he was desirous by this concession to attach lawyers of eminence to the new régime, and prevent the recurrence of the evils experienced during the Republic from the too great influence of patrons. But, whatever may have prompted his action in the matter, its beneficial consequences for the law can hardly be overrated. For the powers with which they were invested enabled the patented counsel to influence current doctrine not speculatively merely but positively (jura condere), and so to leaven their interpretations of the jus civile and jus honorarium with the principles of natural law as to give a new complexion to the system.
Instead of giving his opinion like the unlicensed jurist by word of mouth, either at the request of the judge or at the instance of one of the parties, the patented counsel, who did not require to
- ↑ Wlassak, Processgesetze, i. 191 sqq., and ii. 221 sqq.
- ↑ It may be, however, that the edicts of the peregrin praetors and provincial governors were independently codified. See Girard, Manuel élémentaire, 4th ed. 53-4. An attempt recently made by von Velsen, Z. d. Sav. St. xxi. (1900), 73 sqq., to identify the edictum provinciale with that of the peregrin praetor from the time of Augustus is far from convincing and has received no support from other writers. See Kipp. Gesch. d. Quellen, p. 123 n.
- ↑ Rudorff, De jurisdictions edictum: edicti perpetui quae reliqua sunt (Leipzig, 1869), and rev. by Brinz in the Krit. Viefteljahrschrift (1870), xi. 471 sqq.; Lenel, Das Edictum Perpetuum: ein Versuch zu dessen Wiederherstellung (Leipzig, 1883), 2nd ed., 1907 (French ed. translation by Peltier, 2 vols., 1901-3). The last gained the “Savigny Foundation Prize” offered by the Munich Academy in 1882 for the best restitution of the formulae of Julian's Edict, but goes far beyond the limited subject prescribed; see Brinz's report upon it to the Academy in the Zeitschr. d. Sav. Stift. (1883), vol. iv. Röm. Abtheil, 164 sqq. See Karlowa, Röm. Rechtsgesch, i. 628-41; Krüger, Gesch. d. Quellen, 84 sqq.
