Institutes of Roman Law. Gaius
initiation of legislation was, in fact, during the days of Republican stability, in the hands of the Senate; but, apart from the exercise of this authority, which had long had a de facto recognition, but was not recognized by law until the time of Sulla (88 and 81 b. c.) Ref. 084, the Senate did not pretend to exercise legislative power during the Republic. In its own right it could only exercise certain powers approximating to those of legislation. We find it, for instance, fixing the rate of interest Ref. 085; but such an ordinance technically assumed the form merely of advice to the judicial magistrates as to the rates which they should recognize in their edicts. The Senate, however, exercised the power of dispensing individuals from the existing laws Ref. 086; and we find it also warning the community that some enactment which had passed the people was, on technical grounds, invalid, and was therefore not binding either on the magistrates or on any member of the State Ref. 087.
In few societies of the ancient world was the legislative power so unfettered as it was at Rome. The Romans drew no distinction between constitutional law and other laws; the Roman assemblies could create new assemblies, could alter their own structure, could modify or even suspend the Constitution by granting enormous powers to individuals. There was no sphere of human interest outside their control; their power of utterance was limited only by a respect for religious law Ref. 088. We might, therefore, have expected that legislation would have been the chief path on which Roman law advanced to its maturity. But this expectation is disappointed, so far as the progress of the Jus Privatum is concerned. We do indeed find a certain number of statutes which deal with important matters of private law, such as the Lex Aquilia de Damno, the Lex Furia on testaments, the Lex Voconia on inheritances; and it is also true that certain important changes in civil procedure were sanctioned by the people, the most far-reaching of these changes being perhaps that effected by the Lex Aebutia, which helped to replace the Legis Actio by the Formula Ref. 089. But the legislation referring to private law and civil procedure at Rome is in no way comparable in bulk to that which dealt with criminal and constitutional law. Even those Leges or Plebiscita that dealt with civil procedure, perhaps did little more than ratify a change that had been already accomplished in the courts, or carry this change a few steps further. And, as to the alterations in the material elements of private law, these alterations were determined to a far greater extent by interpretation than by legislation.
§ 11.: Law as the result of Interpretation.—Interpretation by the Magistrate.
Interpretation at Rome assumed two forms. It was either the work of the magistrate or the work of the jurisconsult. The magistrate chiefly concerned with the interpretation of private law was the Praetor. The office of Praetor is said to have originated as a result of the Licinian laws of 367 b. c. Ref. 090 This new magistrate was created for the purpose of performing most of the judicial business of the Consuls, who, on account of the increasing complexity of political life, were found incapable of conducting the whole of the home and foreign affairs of Rome. For more than 120 years this single magistrate administered civil justice to citizens and aliens. At the close of this period (242 b. c.) a second Praetor was appointed Ref. 091 whose duty it was to decide cases between aliens (Peregrini) and between citizens and aliens. The former (Praetor qui inter cives jus dicit) was known by the colloquial name of Praetor Urbanus; the latter (Praetor qui inter peregrinos jus dicit) was known by the similarly abbreviated title of Praetor Peregrinus.
Every magistrate at Rome was in the habit of notifying to the public the manner in which he meant to exercise his authority, or any change which he comtemplated in existing regulations, by means of a public notice (Edictum). In the case of magistrates who were merely concerned with administrative work, such notices were often occasional (edicta repentina); in the case of magistrates concerned with judicial business, they were of necessity valid for the whole period during which the magistrates held their office, and capable of transmission to their successors (perpetua et tralaticia); for jurisdiction does not admit of occasional and isolated ordinances which have only a temporary validity. The edicts of the Praetors were necessarily of this latter type. Each new occupant of the office might admit rulings not recognized by his predecessors; these rulings were forced on him by the fact that new and unexpected combinations in legal relations had been presented to his notice, or that the existing rules did not answer to a growing sense of equity. New rulings cannot be introduced into a system of law without affecting old ones. The fact that there was an edict gave the Praetor a chance of smoothing out anomalies, instead of exhibiting inconsistencies, in the law. The edict admitted of change and development; but it was a change that was subtle and gradual, not violent and rapid. The process by which it was reached professed to be a process of interpretation. It was really creative work of a highly original kind.
The Edictum of the Praetor Ref. 092, in the sense in which this word is commonly used, is really a colloquial expression for the Album, or great notice-board exhibited by the Praetor, which contained other elements besides the Edicta in their true and proper sense. It contained the Legis Actiones and the Formulae of the Civil Law (Jus Civile) Ref. 093, probably preceded by certain explanatory headings, but by no edict; for the Praetor did not create the rulings on which these civil actions and formulae were based. But it contained as well the Formulae which were the creation of him and his predecessors—the Formulae which were the product of what was known as ‘Magistrate’s Law’ (Jus Honorarium); and each of these Formulae was no doubt preceded, at least eventually, by the Edictum or ruling in law, which might have grown out of the Formula, but finally served as its basis and justification. Thus the edictal part of the Album was really a series of separate Edicta, each edict being followed by its Formula; it was regarded as being a supplement to that portion which specified the Actions of Civil Law; and it really had this character of being a mere supplement in so far as ‘honorary’ actions were seldom granted where a ‘civil’ action would have sufficed. But its supplementary character was of a very far-reaching kind. Thus the edicts might take cognizance of cases not provided for by the civil law at all, they might replace the mechanism provided by the civil law for attaining a legal end, and they might alter the character of the end itself. All these functions are summed up by Papinian when he says that the work of the Jus Praetorium was ‘to assist, to supplement, to correct the civil law for the sake of public utility Ref. 094.’ The edict of the Praetor Peregrinus was necessarily still more of a substitute for the civil law than that of the Praetor Urbanus. For, since the Legis Actiones could not (at least in many cases) be employed by Peregrini Ref. 095, he was forced to invent equivalents for these forms of action.
The third Edictum Perpetuum which was valid in Rome was that of the Curule Aediles Ref. 096. It was of no great content, since it was concerned exclusively with the jurisdiction over the market, and the control of public sites—a jurisdiction and control which were possessed by these magistrates. For an edict in any way comparable to those of the Praetors we must turn to the provinces. Here the governors (whether Proconsuls or Propraetors) issued notices of their intentions with respect to jurisdiction, similar to those of the Praetors at Rome as regards their permanent character and the possibility of their transmission, but peculiarly applicable to the particular governor’s special sphere of administration. A special edict was issued for each separate province (thus we read of an Edictum Siciliense) Ref. 097; but this special character did not prevent certain inter-relations between the edicts of separate provinces. We know that the Provincial Edict might be prepared at Rome, before the governor went to his province Ref. 098; and although the man who prepared it (of course, with the assistance of professional lawyers), tried to model his rules as closely as possible on those of his predecessor in the province to which he was going, yet he might borrow improvements which had been initiated by the late governor of some other province. Again, the same man might pass from one province to another, and, much as the circumstances of the separate spheres of government differed from one another, it is inconceivable that he should not have carried some of his favourite rules of procedure with him. A general conception of what a Provincial Edict should be like, must have grown up; the differences between the edicts being probably those of matter rather than of form—the matter being determined by the local customary law of the subject peoples, which Rome rigidly respected. Where there were striking differences