118 



ROMAN LAW. 



ROMAN LAW. 



150 



the law was a dictator, pnetor, or tribune, the Lex, or Plebiscitum, as 

 the case might be, took its name from the proposer only, as Lex 

 Hortoiishi. Sometimes the object of the lex was indicated by a 

 descriptive term, as Lex Cincia de donis et muneribus. 



The Senatus Consulta also formed a source of law under the 

 Republic. That a senatus consultum in the time of Gaius (i. 4) should 

 have the force of law (vicem legis optinet) may be easily admitted ; 

 but Gaius in this passage appears to be referring not only to such 

 senatus consult* as had been passed under the empire, but to the 

 senatus consulta generally as a source of law. It appears that the 

 senate gradually came to be considered as the representative of the 

 curiie, and that its consulta, in many matters relating to adminis 

 tration, the care of religion, the rcrarium, and the administration of 

 the provinces, had the full effect of laws. It does not seem as if the 

 Romans themselves bad a very clear notion of the way in which the 

 senate came to exercise the power of legislation ; but they imagined 

 that it arose of necessity with the increasing population of the state 

 and the increase of public business. The senate thus became an active 

 administrating body, and, as an easy consequence, that which it 

 enacted (constituit) was observed, and this new source of law was 

 termed Senatus Consultum. (' Dig.,' L, tit. 2.) It seems probable 

 that the senate began to exercise the power of making senatus con- 

 sulta after the parsing of the Hortensia Lex, though it is not pretended 

 that the Hortensia Lex, or any other Lex, gave this power to the 

 donate. No eenatus consulta are recorded as designated by the names 

 of magistrates till the time of Augustus, a circumstance which seems 

 to show that, whatever binding authority senatas consulta might have 

 acquired under the Republic, they were not then viewed as laws 

 properly so called, or as having the full effect of leges. But from the 

 time of Augustus the titles of senatus consulta frequently occur; their 

 names, like those of the leges, were derived from the consuls, as S. C. 

 Vellcianum, Pegasianum, Trebellianuni, Ac., or of the emperor who 

 proposed them, as S. C. CUudianum, Neronianum, &c. ; or they were 

 said to be made " auctore Principe," or " ex auctoritate Principis." 

 The expression applied to the senate so enacting was " censere." (Gaius, 

 i. 17.) Special consulta were sometimes passed for the purpose of 

 explaining or rendering effectual previous leges. 



A new source of law was supplied by the Edicta of those magistrates 

 who had the Jus Edicendi, but mainly by the praetors, the praetor 

 urbanus and the praetor peregrinus. ' The edicts of the praetor urban us 

 were the most important. The body of law which was formed by the 

 Edicta is accordingly sometimes called Jus Pnctorium, which term 

 however might be limited to the Edicta of the praetors, as opposed to 

 those of the curule acdiles, the tribunes, censors, and pontifices. The 

 name Jus Honorarium, as opposed to Jus Civile, comprehends the 

 whole body of edictal law ; and the name Honorarium was given to it, 

 apparently because the Jus Edicendi was exercised only by those 

 magistrates who had the Honores. Jus Civile, in its larger sense, 

 comprehended all the law of any given nation ; but the Jus Civile 

 Romanorum, as opposed to the Honorarium, consisted of Leges, Ple- 

 biscite, Senatus Consulta, to which, under the empire, were added the 

 DecreU Pnncipum and the Auctoritas Prudentium. The Honorarium 

 Jus was introduced for the purpose of aiding, supplying, and correcting 



iVcto of the Jos Civile Romanorum in its limited sense. (' Dig.,' 

 i., tit. i., . 7.) 



The historical origin of the edictal power is not known, but in the 

 time of Cicero it had been so long exercised, and the Edicta had been 

 so far formed into a regular system, that the study of the edictal law 

 was a main port of the systematic study of the Roman Law, and had 

 taken the place of the Twelve Tables as an elementary branch of in- 

 struct i ' Legg.,' ii. 4, 23; i. 5.) Servius Sulpicius, a dis- 

 urist and a friend of Cicero, wrote two small books on the 



which were followed by a work of Ofilius, also on the Edk-t. 

 Though the history of the edictal law, as already observed, cannot be 

 traced, it thus appears that it had assumed a systematic form in the 



ro. 

 An Edictum was a rule promulgated by a magistratus when he 



1 on his office. It was committed to writing and put up in a 



place. Its object was to declare by what rules the pnetor would 

 be governed in the administration of justice during the year of his 

 office ; and hence the Edictum was sometimes called Perpetunm or 

 Annu.1 Lex. An Edictum Repentinum applied only to the particular 

 occasion on which it was made. All offices being annual, the rules of 

 one magistratus were not binding on his successor, but his successor 

 might adopt them into his own Edictum, and such adopted Edictum 

 then became an Edictum Tralatitium. In this way numerous Edicta 

 were adopted by one magistratus from the Edicta of his predecessors, 

 and thus gradually a t>ody of rules was formed and established, which 

 experience had proved to be useful. Those Edicta which were of great 

 .ince are often referred to under the name of the magistratus 

 promulgated them, as the Edictum Carbonianum and others. 



general character of the Edict has been already stated. It is 

 ilia 1 1 ill ml in other words as " viva vox juris civilis," as a mode by 



the rigid rules of the civil law were altered and extended to 

 suit the altered circumstances of the times. The changes introduced 

 by positive enactments into the Jus Privatum of the Roman law seem 

 to Lav* been very unimportant. It was not consistent with Roman 

 notions to alter or change fundamental principles, and most of the 



legislation of the republican period had reference to the disputes 

 between the two estates of the patricians and plebeians, and to other 

 parts of the Jus Publicum. Accordingly it was left to the magistratus 

 gradually to introduce the necessary changes into the Jus Privatum ; 

 but the process of doing this was in strict conformity to the principles 

 of the old law. The Edict did not affect to make new law, but, to 

 adopt as law what custom had sanctioned, provided it was not against 

 the Jus Civile; to give an action when a land fide right existed, if the 

 old law gave none ; to protect a man in bond fide possession of pro- 

 perty, without affecting to give him ownership, which the law alone 

 could give him by virtue of usucapion ; to aid parties by fictions which 

 however were always of such a kind that the thing which the fiction 

 supposed, was that which would have given a strictly legal right. A 

 great part of the efficacy of the Edict consisted in extending the 

 remedies by action ; and after the abolition of the Legis Actiones (with 

 the exception of the Actio Damni Infecti, and of matters which be- 

 longed to the cognisance of the Centumviri) by the Lex ^Ebutia and 

 two Leges Juliae, the mode of proceeding in actions was settled by the 

 formulae of the Edicta. Still even here it seems probable that the 

 praetors followed the analogy of the Legis Actiones and framed their 

 formulae accordingly. The Actiones given by the Edict were named 

 after their author, as Publiciana, &c. The commentators on the Edicts 

 were numerous under the early emperors. Labeo wrote at least four 

 books on the Edictum of the Praetor Urbanus. Coslius Sabinus com- 

 mented on the Edict of the Curule jEdiles. In the time of Hadrian, 

 Salvius Julianus, who had himself been proctor, compiled a work on 

 the Edict, which was called Edictum Perpetuum. Nothing is known 

 of the detail of thia work, but it appears probable that it was designed 

 to be a systematic exhibition of the whole body of edictal law, and as 

 such it must have had considerable influence on the subsequent con- 

 dition of jurisprudence. At what time the Edicta ceased to be made 

 by the magistratus is a disputed point. The edictal power certainly 

 existed under the empire, and even after the compilation of the 

 Edictum Perpetuum of Julianus, but it must have been comparatively 

 little exercised, as the practice of making new laws by Senatus Consulta 

 prevailed under the Caesars after the time of Augustus, and the Im- 

 perial Constitutions are mentioned as one of the recognised sources of 

 law in the time of the Antonines. (Gaius, i. 5.) 



With the establishment of the Imperial Constitution begins a new 

 epoch in the Roman law. The leges of Augustus and those of his 

 predecessor had some influence on the Jus Privatum, though they did 

 not affect the fundamental principles of the Roman law. A Lex Julia 

 came into operation, B.C. 1 3, but it is better known as the Lex Julia et 

 Papia Poppoca, owing to the circumstance of another lex of the same 

 import, but less severe in its provisions, being passed as a kind of 

 supplement to it in the consulship of M. Papius Mutilus and Q. Pop- 

 peous Secundus, A.D. 9. This law had for its object the encouragement 

 of marriage, but it contained a great variety of provisions : it is not 

 known whether it was passed at the Comitia Centuriata or Tributa. 

 A Lex Julia de Adulteriis, which also contained a chapter on the dos, 

 is of uncertain date, but was probably passed before the former Lex 

 Julia came into operation. Several Leges Julia) Judiciaritu are also 

 mentioned, which related both to Judicia Publica and Privata, and 

 some of which may probably belong to the time of the dictator 

 . 



The development of the Roman law in the Imperial period was little 

 affected by direct legislation. New laws were made by Senatus Con- 

 sulta, and subsequently by the Constitutiones Principum; but that 

 which gives to this period its striking characteristic is the effect pro- 

 duced by the Responsa and the writings of the Roman jurists. 



So long as the law of religion or the Jus Pontificium was blended 

 with the Jus Civile, and the knowledge of both was confined to the 

 patricians, jurisprudence was not a profession. But with the gradual 

 separation of the Jus Civile and Pontificium, which was partly owing 

 to the political changes by which the estate of the plebeians was put 

 on a level with that of the patricians, there arose a class of persons who 

 are designated as Jurisperiti, Jurisconsult], Prudentes, and by other 

 equivalent names. Of these jurisconsult! the earliest on record is 

 Tiberius Coruncanius, a plebeian pontifex maximus, and consul B.C. 

 281 : he is said to have been the first who professed to expound the 

 law to any person who wanted his assistance (publice profiteri) ; he 

 left no writings, but many of his Respousa were recorded. Tiberius 

 Coruncanius had a long series of successors who cultivated the law, 

 and whose responra and writings were acknowledged and received as a 

 part of the Jus Civile. The opinions of the jurisconsult), whether 

 given upon questions referred to them at their own houses, or with 

 reference to matters in litigation, were accepted as the safest rule by * 

 which a judcx or an arbiter could be guided. Accordingly, the mode 

 of proceeding, as it is described by Pomponius, is perfectly simple ; 

 the judices in difficult cases took the opinion of the jurisconsult!, who 

 gave it either orally or in writing. Augustus, it is said, gave the 

 responsa of the jurists a different character. Before his time, their 

 responsa, as such, could have no binding force, and they only indirectly 

 obtained the character of law by being adopted by those who were 

 empowered to pronounce a sentence. Augustus gave to certain jurists 

 the respondendi jus, and declared that they should give their responsa 

 " ex ejus auctoritate." In the time of Gaius (i., 7) the Responsa Pru- 

 dcntium had become a recognised source of law ; but he observes that 



