Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 35

From the judicial functions of the Prætores Urbani, I proceed to that power of direct legislation which they exercised (at first) with the tacit consent, and (afterwards) with the express authority of the sovereign Roman People.

The direct legislative power of the Prætors was originally confined to Procedure, but afterwards extended to Substantive Law.

Originally and properly, the Prætor was merely a judge. It was his business to administer the Law, established by the Supreme Legislature, in specific cases falling within his jurisdiction.

But though it was his business to administer the law established by the supreme legislature, the manner of administration, or the mode of procedure, was left, in a great measure, to his own discretion. Accordingly, every Prætor, on his accession to the Prætorship, made and published Rules of Procedure or Practice: Rules to be observed, during his continuance in office, by those who might happen to be concerned (as parties, or otherwise) in causes coming before him.

Such, originally, was the direct legislative power exercised by the Prætors. It extended to procedure or practice, but not to the substantive law which it was their business to administer. It may be likened to the power of making Regulæ Praxis which is not unfrequently exercised by our own Courts of Justice.

But, in consequence of incessant changes in the circumstances and opinions of the Roman community, corresponding changes in its institutions were absolutely necessary. And, inasmuch as the demand for innovation was slowly and imperfectly supplied by the supreme and regular legislature, the Prætors ventured to extend their direct legislative power, and to amend or alter the substantive law which properly it was their office to administer.

As I have used the expression substantive law, I may here note that this name is applied by Mr. Bentham to the law which the Courts are established to administer, as opposed to the rules according to which the substantive law is itself administered. These last, or the rules of procedure or practice, he has termed adjective law. These expressions appear at first sight somewhat odd; but they are closely analogous to the terms employed to denote the same two departments of law, in a very able report presented to the Prussian Government in 1811. What Mr. 592Bentham calls substantive law, the framer of the report calls material law; the adjective law of Mr. Bentham he calls formal law. The only difference is that the one writer draws his metaphor from the language of grammarians, the other from that of logicians. The expressions of the French law are nearly similar. Substantive law, or the law which the Courts are appointed to administer, is called by the French lawyers le fonds du droit: adjective law, or the rules according to which the substantive law is to be administered, they call la forme. There is really nothing odd or eccentric in Mr. Bentham’s phrases. There are indeed many objections to them, and I think that it would be better to express the meaning by a circumlocution; because there are many rules which are not properly rules of procedure, but which might with equal propriety be called adjective law, or formal law; such as the formalities prescribed by law in entering into contracts.

I adopt, for the present, the distinction between substantive and adjective law, although, as I shall shew hereafter, it cannot be made the basis of a just division.

The Law introduced by the Prætor (whether it consisted of substantive law, or of rules of procedure or practice) was introduced (for the most part) by their general Edicts, or by their Edicts (simply so called).

The Edicts, Orders, or Precepts, issued by the Prætors, were of two kinds: general and special.

A general Edict was made and published by a Prætor in his legislative capacity. A special Edict was made and issued by a Proctor in the exercise of his judicial functions.

A general edict consisted of a rule or rules, which had no specific relation to a specific case or cases, but regarded indifferently all cases of a given class or classes. A special edict was issued in a specific cause; was addressed to a person or persons concerned in that cause, and specifically regarded the person or persons to whom it was addressed.

In short, a general edict was a statute, or a body of statute law; and was made and published by its author as a subordinate legislator. A special edict was an order, made in a specific cause; and was made and issued by its author as a judge.

It appears, then, that the term ‘Edict’ was often applied indifferently, to the general rules or orders which were published by the Prætors as legislators, and to the special orders or commands which they made and issued as judges. But when the Edicts of the Prætors are mentioned without qualification, their 593general or legislative edicts, and not their particular or judicial, are commonly or always referred to by the writer.

In like manner, the jus edicendi, which is ascribed to the Prætors, denotes their power or right of making general rules, and not their power or right of making special orders in the exercise of their judicial functions. And so, ‘edicere,’ or ‘jus edicere’ is to legislate directly: The act of judging (or of applying existing law in specific causes) being denoted by the expression ‘jus dicere’ (or ‘jus decernere’).

In the orations of Cicero against Verres, ‘edicere’ and ‘decernere’ are directly and distinctly opposed in the senses which I have now referred to. For one of the charges against Verres (who as Governor or President of a province was invested with the jus edicendi) is this: quod aliter, atque ut edixerat, decrevisset:—that in the decrees or orders, which he issued as judge, he violated the rules, which he had established in his legislative capacity, by his own general edict. In like manner, the general constitutions promulged by the Emperors as legislators (when opposed to the decrees which they issued as judges in the last resort) are frequently styled ‘edictal.’

Interdicere (as well as dicere and decernere) is also opposed to edicere. But an interdictum was a special and judicial order of a particular species. It was a provisional or conditional order made by the Prætor on the ex parte statement of the applicant: The party to whom it was addressed having the power of shewing cause why the order should not be carried into effect. In short, it was what would be styled, in the language of our own law, an injunction or mandamus.

Any Prætor might publish a general edict at any period during his stay in office. But, generally speaking, all the rules or laws, which were published by any given Pætor, were published or promulged immediately after his accession, and were comprised in one edict, or constituted one edict.

The edict which was published by any given Prætor, was not legally binding upon his successor in the Prætorship, and only obtained as law till the end of the year during which he himself continued in office. And, accordingly, the general edicts of the Prætors, or their edicts simply so called, are styled by Cicero and others ‘Edicta annua,’ or ‘leges annuæ.’

But though a general edict was merely annual (or merely obtained as Law while its author continued in office), the general or legislative Edicts, made and promulged by the Prætors, are nevertheless styled ‘perpetual.’ Now the epithet ‘perpetual’ 594(taken in its ordinary meaning) is hardly applicable to a law or statute of a certain or definite duration. A perpetual law or statute (taking the terms in their ordinary meaning) would seem to denote a law which was intended to be irrevocable, or which (at least) was intended to endure until some competent authority should abrogate or repeal it.

Accordingly, the epithet ‘perpetual’ (when applied to the legislative edicts made and published by the Pætor) indicates their generality, and not their duration. When thus applied, the epithet ‘perpetual’ is opposed to ‘occasional,’ and is used to distinguish the general edicts of the Prætors from the special edicts or orders which they issued in their judicial capacity.

And (taking the epithet ‘perpetual’ in this meaning) it was justly applicable to these general or legislative edicts, although their duration was definite or certain. For a special or judicial edict was issued in a given cause: was restricted to the cause in which it was issued; and expired with the specific exigency which it was intended to meet. It was an occasional order concerning a particular case, and not extending generally to cases of a class. In the language of the Roman Law, it was made and issued ‘pro re natâ’ (or ‘prout res incidit’).

But an edict issued by a Prætor, as exercising his legislative powers, consisted of general Rules. It was neither provoked by a specific occasion, nor did it expire with any of the specific occasions on which its general provisions were actually applied. It was intended to apply to entire classes of cases; and was applicable to every case belonging to any of those classes, so long as the Prætor by whom it was promulged should occupy his office. In the language of the Roman Law, it was made and issued, ‘non prout res incidit, sed jurisdictionis perpetuæ, causâ.’ It was not provoked by a specific incident or occasion; but was intended to serve as a guide to all who might be concerned in causes, so long as the Prætor who issued or promulged it should continue to exercise the jurisdiction annexed to his office.

The epithet ‘perpetual’ when applied to the Edict of a Prætor, is therefore synonymous with ‘general’ (as opposed to ‘specific’ or ‘occasional’). It denotes that the Edict consisted of general provisions; and not that it was calculated to endure in perpetuum, or until it should be abrogated or repealed by a supreme or subordinate legislature. As opposed to general and legislative edicts, special and judicial edicts are frequently styled repentina: An epithet which does not denote that they were 595issued in haste, but that they were made on the spur of a specific or particular occasion.

The Prætorian Edict, which was in force at any given period, was properly the edict of the Prætor who then occupied the Prætorship. For the edict which was promulged by any given Prætor, expired with the year during which he stayed in the office, and yielded to a similar edict promulged by his immediate successor.

But though the edict of every foregoing Pætor was superseded by the edict of his immediate successor in the office, every succeeding Prætor inserted in his own edict, all such rules and provisions, contained in the edict of his predecessor, as had found favour with the public at large, or had met with the approbation of the classes who influenced the community. For, as the legislative power of the Prætors was derived from the tacit consent of the sovereign people, its exercise was inevitably determined by general opinion.

Such being the case, the edict promulged by every succeeding Prætor. was a simple or modified copy of the edict promulged by his predecessor. He simply republished the edict which his immediate predecessor had issued, or else he republished it with such omissions and additions as were demanded by general opinion or suggested by general expediency. If he simply copied the edict which the foregoing Prætor had promulged, the edict promulged by himself was simply translatitious, or tralatitious. In other words, it merely consisted of rules and provisions, which he translated (transferred or adopted) from the edict of his immediate predecessor.

If he copied the edict of his predecessor with certain modifications, the edict promulged by himself was partly Edictum tralatitium, and partly Edictum novum. So far as it consisted of provisions taken from the edict of his predecessor, it was Edictum tralatitium. So far as it consisted of provisions devised and introduced by himself, it was not Edictum tralatitium, but Edictum novum.

It rarely happened that the general edict of a Prætor was purely tralatitious. For incessant changes in the position and opinions of the community created an incessant demand for corresponding changes in its law. And since this continued demand was slowly and imperfectly satisfied by the supreme and ordinary legislature, the Prætors were provoked to supply the demand by a continued though cautious exercise of their legislative powers.

596It is remarkable that all the edicts of all the successive Prætors are frequently considered as constituting one Edict. They are frequently styled (in the singular number) ‘the Edict;’ ‘the Prætorian Edict;’ or ‘the Edict of the Prætors or Prætor.’ The process of translation or transference which I have attempted to describe, explains this form of expression.

With reference to its promulgation, the general Edict, which was in force at any given period, was the edict of the Prætor who then occupied the Prætorship. But with reference to its contents, or to the rules of which it consisted, it was partly the production of the Prætor who then occupied the Prætorship, and partly the production of his various predecessors in the office. For much of the edict promulged by every Prætor, was translated into the edict promulged by his immediate follower. With reference, therefore, to their contents (though not with reference to their promulgation), the series of edicts, issued by a series of Prætors, constituted an indivisible whole, or formed a continuous chain. Although the edict for the time being had been promulged by the actual Prætor, his predecessors as well as himself had lent a hand to the formation of its provisions.

And here I may remark, that, after the Prætors had legislated through a long tract of time, the general Edict of the Prætor for the time being naturally consisted (for the most part) of derivative or translatitious rules. For as the legislative power of the Prætor was commonly exercised discreetly, the rules, introduced originally by the Prætor, for the time being, were comparatively few and unimportant. They bore a small and insignificant proportion to those provisions of his predecessors which were also a part of his edict, and which had accumulated through a series of ages.

The aggregate of rules, which had been introduced by successive edicts, and which were embodied in the edict obtaining for the time being, formed or constituted, at any given period, the portion of the Roman Law which was styled ‘Jus Prætorium.’

A part of the Roman Law (like much of the Law of England) was made by judicial decisions on specific or particular cases. Decided cases, serving as precedents, formed a portion of the Roman, as well as of our own system. In the language of the Roman Law, as well as in the language of the English, such decided cases are frequently called precedents:—‘præjudicia.’ More commonly, however, such decided cases are styled ‘res judicatæ:’ And their influence (as precedents) upon subsequent 597judicial decisions, is styled ‘auctoritas rerum perpetuo similiter judicatarum.’

Now as most civil cases fell within the jurisdiction of the Prætor, most of the civil law, which was formed by judicial decisions, might have been styled with propriety ‘prætorian law.’ Where the Prætor decided without an arbiter or judex, the questions of law which happened to arise in the cause were of course determined by himself. And where he remitted the cause to a judex or arbiter, the questions of law, which the formula happened to involve, were probably decided in effect by the Court above, and not by the secondary or subordinate tribunal. The judex probably took the opinion of the Court above on the point of law, and decided accordingly. I have not been able to discover, whether it was incumbent on the judex to take the Law from the Prætor, and whether the latter could grant a new trial in case the judex or arbiter decided against the law, but it is probable that, in practice, such a miscarriage in judicio seldom occurred.

But though most of the law, formed by judicial decisions, was made by the Prætors (as judges), and might have been styled ‘prætorian,’ the term ‘jus prætorium’ was exclusively applied to the law which they made by their general edicts in the way of direct legislation.

This is a fact which I cannot account for satisfactorily; but which (perhaps) may be explained in the following manner.

Though part of the Roman Law was formed by judicial decisions, that part of it which was so formed bore an insignificant proportion to the rest of the system. Demand for law of the kind was superseded, in a great measure, by the law which the Prætors introduced in the exercise of their legislative powers. And since the law which they introduced through the medium of their general edicts, eclipsed the law which they established by their decisions on specific cases, general attention was fixed on the former, whilst the existence of the latter was generally forgotten. The former being conspicuous, and being conspicuously the work of the Prætors, it obtained exclusively the name of jus prætorium, although the name might with equal propriety have been extended to the latter.

The jus edicendi (or the power of legislating directly by general edicts or statutes) was not confined to the Prætores Urbani. It was exercised by every magistrate of a superior or elevated rank, with reference to such matters as fell within his jurisdiction. It was exercised by the high priests or Pontifices 598maximi. It was exercised by the Ediles, or the surveyors and curators of public buildings, roads, and markets. With reference to cases arising in Italy, between provincials and provincials, or between provincials and Roman citizens, it was exercised by the Prætores Peregrini. In the outlying provinces, it was exercised by the Proconsuls, and other Presidents or Rulers, to whom the government of those provinces was committed by the Roman People.

The rules which were established by the general edicts of the magistrates who enjoyed the jus edicendi, were often considered as constituting a whole, and were styled (when considered as a whole) the jus honorarium. For, as every office of an elevated character honoured or distinguished the person by whom it was occupied, every office of the kind was styled ‘honos.’ And since the magistrates who enjoyed and exercised the power of promulging general edicts, enjoyed it by virtue of their honores, or of the elevated offices which they filled, the law which they created by their general edicts was naturally styled jus honorarium.

Hence it follows, that the jus prætorium was merely a portion of the jus honorarium. But as no other portion of the jus honorarium was equal in extent and importance to the jus prætorium, the term jus honorarium is frequently restricted to the latter.

‘Prætores (says Pomponius) edicta, proponebant: quæ edicta prætorum jus honorarium constituerunt. Honorarium dicitur, quod ab honore prætoris venerat.’

‘Jus prætorium (says Papinian) et honorarium dicitur: ad honorem prætorum (or ex honore prætorum) sic nominatum.’

The jus prætorium (or the law which the prætores urbani introduced by their general edicts) seems to have been made by those distinguished magistrates out of the following materials.

First:) They gave the force of Law (through the medium of their general edicts) to various customary or merely moral rules which had obtained generally amongst the Roman people.

Secondly:) They imported into the Roman Law (through the medium of their general edicts) much of that jus gentium, or that æqual or common Law, which had been formed by the Prætores Peregrini, and by the Presidents of the outlying provinces.

Thirdly:) So far as the opinion of the Roman public invited or permitted such changes, they supplied the defects of the jus civile, or proper Roman Law, and even abolished portions of it, 599agreeably to their own notions of public or general utility.—‘Jus Prætorium est (says Papinian) quod prætores (supplendi vel corrigendi juris civilis gratiâ) introduxerunt, propter utilitatem publicam.’

The term Equity. Æquitas = Utilitas, or other approved principle of legislation. Justitia, as meaning utilitas, or other approved principle, etc.

Inasmuch as the body of law, formed by the Prætores Urbani, was partly derived from the jus gentium, and was partly fashioned upon Utility (as conceived by the Prætors and the public), it was naturally styled the Equity of the Prætors, or was said to be founded by the Prætors upon equitable grounds or principles. For (as I remarked in a former Lecture) the jus gentium was styled jus æquum, whilst general utility (or principles of legislation supposed to accord with it) was often styled ‘Æquitas.’

It is said in a passage of the Digests (referring to a certain rule of the jus prætorium) ‘hoc æquitas suggerit etsi jure deficiamur:’ That is to say, the rule was commended by general utility (or equity), although it was not recognised by that portion of the Roman Law which was opposed to the jus prætorium by the name of ‘jus civile.’ Though that which conforms to the jus prætorium is commonly styled æquum, it is frequently styled ‘justum.’ That which does not conform to the jus prætorium, is commonly styled ‘iniquum,’ and not unfrequently, ‘injustum.’

lnasmuch as the jus prætorium grew gradually, or was formed by successive edicts of many successive Prætors, it was not a formal system or digested body of law, but an incondite collection or heap of single and insulated rules. No Prætor thought of legislating systematically: Nor would his stay in office have allowed him to legislate systematically, although the opinion of the public had favoured the attempt, and the supreme or regular legislator had inclined to acquiesce in it. When the Prætor for the time being was struck by a particular defect in the existing law, and when the general opinion invited or provoked him to supply it, he cured that particular defect by a particular provision. And if he thought a particular rule iniquum or mischievous, and general opinion favoured or demanded its abolition, he inserted a clause in his edict abolishing the specific mischief.

Implication of substantive law, and, in particular, of substantive prætorian law, with procedure.

It is also remarkable, that even the substantive law introduced by the Edicts of the Prætors, wore a practical shape or was implicated with procedure.

If the Prætor gave a right unknown to the jus civile, he did not give that right explicitly and directly. He promised or declared, through the medium of his general edict, that, in case any party should be placed in a certain position, he, the Prætor, 600 would give him an action, or would entertain an action if he should think fit to bring one. If the Prætor abolished a rule which was parcel of the jus civile, he did not abolish or repeal it formally and explicitly. He promised or declared, through the medium of his general edict, that in case an attempt should be made to enforce the rule by action, he would empower or permit the defendant to except to the plaintiff’s action, or to defeat the plaintiff’s action, by demurrer or plea. For example; Many conventions or pacts, which were void jure civili, were rendered legally binding by the Edicts of the Prætors. But when a Prætor (through the medium of his general edict) gave validity to a convention which was void jure civili, he did not determine formally the rights and obligations of the parties. He merely indicated the action which he would give to the promisee, in case the promisor should neglect or refuse performance.

Again: According to the jus civile, a party obliged (by contract or otherwise) was not freed from the performance of the obligation by a simple promise on the part of the obligee, not to enforce it by action. According to the jus civile, the obligor was not freed from performance without a formal release (styled acceptilatio) executed by the obligee.

Now the Prætors determined, by their general edicts, that the obligation should be extinguished, in case the obligee merely promised that he would not require performance. But instead of abolishing the old law explicitly and directly, the Prætors gave to the obligor an exception founded on the promise. Instead of declaring explicitly that the obligee had no right, they left him (in appearance) his right of action, but empowered the obligor to defeat that apparent right by a defence bottomed in Equity (or in the jus prætorium).

This obscure and absurd mode of abrogating law has also been pursued by our own Chancellors. Where a common-law rule is superseded by a rule of equity, it is left to appearance unabrogated and untouched. But in case an attempt be made to enforce it by action, the plaintiff is restrained by the Chancellor from pursuing his empty right.

In Rome, there was no distinct tribunal affecting to administer a distinct system of Law under the name of Equity. Consequently, the equitable defence was submitted to the Prætor himself, or to the very tribunal in which the action was brought.

In England, there is a distinct Court affecting to administer a distinct system of Law under the name of Equity. Conse601quently, the action is brought before one Court, and the defence (in the shape of a suit) is submitted to another. The action is brought in a common-law Court, and in that Court the action is not to be resisted.⁵² But the Chancellor (on the application of the defendant) issues an order, restraining the plaintiff at Law from pursuing his legal demand.

⁵² According to the letter of our statute law this is no longer precisely the case. But the provisions for conferring an equitable jurisdiction on the Common Law Courts, contained in the Common Law Procedure Act, 1854, have proved, especially in relation to equitable defences, of little practical value.

This failure has been owing partly to the extreme pressure of public business on our Common Law Courts, and the consequent reluctance of the judges to give a liberal interpretation to their new jurisdiction. But it is also due to the inadequacy of the enactments themselves to effect the purpose which the promoters of the statute may be conjectured to have had in view. If it be wished effectually to invest the Common Law Courts with jurisdiction now properly belonging to Courts of Equity, or vice versâ, the Court on which the new jurisdiction is conferred must be invested, in relation to the subject-matter, with the whole powers of the Court already having jurisdiction. This is the mode adopted in the Acts conferring an equitable jurisdiction on the County Courts; and the successful operation of these Acts is now beyond doubt.—R. C.

In Rome, there was one suit. The plaintiff presented his demand (founded on the jus civile) to the Prætor; and the defendant submitted his defence (founded on the jus prætorium) to the same tribunal.

In England, there are two suits. The plaintiff brings his action before a Common-law Court: and the defendant institutes a suit before a Court of Equity, for the purpose of obtaining an order to stay the proceedings of his adversary. In England, the mess of complication and absurdity is somewhat thicker than it was in ancient Rome.

To revert to the subject from which I have digressed for a moment: Wherever the Prætor, by his edict, gave a right, he did not give the right directly and explicitly. He merely promised a certain remedy, in case the right, which he gave in effect, should be violated or disturbed. And the nature of the right which he thus virtually created, was implied (or described implicitly) in his description of the remedial process.

Before I quit this subject, I will advert to two peculiarities of the Roman Law language which are extremely perplexing.

The actions (or rights of action) created by the Prætorian Edict, are frequently styled utiles.

It commonly or often happened, that actions given by the jus prætorium were analogous to actions given by the jus civile. Or (speaking more accurately) a case wherein the Prætor gave an action, was often analogous to a case wherein an action had 602been given by the jus civile. Although the case for which the Prætor provided, fell not within the provision of the jus civile, it fell within the principle upon which that provision was founded. Hence the right of action given by the Prætor was given by way of analogy: by way of analogy to a right of action which had already been given by the jus civile. And, being given by way of analogy, the action given by the Prætor was styled utilis. For the term utilis (as taken in this sense) is not derived from uti the verb, but is related to uti the adverb. The Prætor gave the action, as he would have given it, if the case, submitted by the applicant, had fallen within the provision of the jus civile. An actio utilis (as thus understood) may be likened to an action on the Case. For an action on the case (or an action of trespass on the case) was originally an action founded on a writ issued in consimili casu: that is to say, in a case analogous to a case for which the ancient law had already provided.

In the language of the Roman Law, utilis is often synonymous with ‘legally valid or operative.’ But, as applied to prætorian actions, it seems to be synonymous with ‘analogous.’ For, since many prætorian actions were really analogous to actions given by the jus civile, prætorian actions were styled utiles, even in cases where no such analogy obtained.

Actions given by the Edicts of the Prætors are also frequently styled ‘actiones in factum,’ or ‘actiones in factum conceptæ.’ A form of expression which seems to have arisen from a peculiarity in the form of procedure. Where an action was founded on the jus civile, it would seem that the plaintiff not only stated his case, but alleged or quoted the law upon which he rested his demand. Whence such actions were styled actions in jus, or actions in jus conceptæ. But where an action was founded on the jus prætorium, the plaintiff merely stated the facts (or case), without adverting to the law which gave him a right to sue. And since the actor merely detailed the facts, his action was styled an action in factum, or an action in factum concepta. The reason of this difference in forms I am not able to explain; nor, perhaps, is it worth explaining. But it is of importance that the import of the expression ‘action in factum’ should be marked and understood. For, looking at the shape of the expression, it would seem to denote an action allowed by the Prætor arbitrarily, rather than an action founded on the jus prætorium, or on the settled Law which the Prætors had introduced by their edicts.

History of the Prætorian edict from the end of the popular government to the reign of Justinian.

603Under the virtual sovereignty of the Emperors or Princes, the Prætors exercised, at least till the reign of Hadrian, the properly legislative powers which they exercised in liberâ republicâ, or during the substantial existence of the popular government. But with this difference:

Liberâ republicâ, the Prætors exercised those legislative powers by the express or tacit authority of the sovereign Roman People.

After the virtual dissolution of the popular government, the Prætors exercised those legislative powers by the express or tacit authority of the Emperors or Princes, who at first were substantially though covertly, and at length were substantially and avowedly, monarchs or autocrators in the Roman World.

Till the reign of Hadrian the prætorian law retained the characters which I have just described. It was merely an incondite mass of occasional and insulated rules, that had grown, by a slow and nearly insensible aggregation, through a long succession of ages.

As having been promulged by the Prætor for the time being (or as being comprised in the edict in force for the time being), this body of rules was merely annual, or was merely calculated to last during his stay in the office. But most of the rules comprised in that present edict had been translated or transferred from the edict’s of his predecessors. And (of course) most of them would also be translated into the edicts of his successors; and (by virtue of the republications which his successors would give to them) would continue to constitute a large and important portion of the entire Roman Law.

In the reign of Hadrian, the Jus Prætorium, or the Prætorian Edict, underwent a considerable change. It was amended or altered by the jurisconsult Julian, and was then promulged, by the command of Hadrian, in the form of a body of rules proceeding immediately from the sovereign. Taking the terms written and unwritten in their juridical and improper meanings, the jus prætorium passed from the department of unwritten, into the department of written law.

As thus promulged by the command of Hadrian, the jus prætorium ought not to have retained the name. For, as thus promulged by the command of Hadrian, it was not properly the law of the Prætors, but was Law proceeding immediately from the sovereign legislator: Just as the excerpts from the writings of jurisconsults, of which Justinian’s Pandects are mainly composed, are not (as constituting the Pandects) the production of 604the original writers, but are properly the production of the monarch who selected, published, and sanctioned them. But, as chiefly consisting of rules which the Prætors had originally introduced, the jus prætorium retained its original name, after its nature had been changed by Hadrian’s promulgation.

Before the change to which I have now adverted, the general edicts of the Prætors; were styled ‘perpetual,’ inasmuch as they consisted of general and prospective rules, and were not issued ‘prout res incidit,’ or on the spur of specific occasions. They were styled ‘perpetual,’ as opposed to the occasional edicts which the Prætors issued judicially in particular causes.

But the Prætorian Edict, as promulged by the command of Hadrian, was styled ‘perpetual,’ in another signification of the epithet. As promulged by the command of Hadrian, the prætorian edict was not edictum annuum; or it was not calculated to endure to the end of a definite period, and then to cease as Law, unless it should be republished. The Edict amended by Julian, and promulged by Hadrian, was calculated to endure in perpetuum, or until it should be abrogated by competent authority.

Whether the Prætors after this change under Hadrian, continued to legislate directly (or to legislate by general edicts), is an agitated and doubtful question. It would rather appear that Hadrian, in making the change, intended (amongst other objects) to obviate the necessity and demand for the subordinate legislation of the magistracy.

Sources of the law administered by the tribunals from Alexander Severus to the accession of Justinian.

Whether such general edicts were or were not issued, after this change under Hadrian, it is certain that the Prætors ceased to legislate directly in the course of the third century.

At or before the close of the third century, the direct legislation of the Prætors, and also the legislation of the Populus, Plebs, and Senate, had yielded to the avowed legislation of the virtual monarchs or autocrators.

At or before the close of the third century, and from thence to the accession of Justinian, the living Roman Law or the Roman Law administered and enforced by the tribunals, was drawn exclusively from the two following sources: namely, the general and special Constitutions of the Emperors or Princes, and the writings of the jurisconsults whose opinions were deemed authoritative.

For though the authors of those writings were not properly founders of law, their expositions of principles, and their solutions 605of specific cases, were equivalent, in effect, to statutes and judicial decisions; since those expositions and solutions guided the tribunals, in all the cases coming before them, for which the Constitutions of the Emperors had not provided.