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EDICTUM The jus edicendi, or power of issuing edicts--public and authoritative notices on matters which fell within their jurisdiction, or formed part of their official business--belonged to all the higher magistrates at Rome. The censors published edicts relative to a coming census (Liv. 39.44; cf. Plin. Nat. 14.95, 36.4): the consuls thus summoned the senate and the comitia. Cicero (in Verr. 2.41) mentions an edict of the tribunes connected with their right of “intercession;” and the edicts of the aediles, which are alluded to by Plautus (Capt. 4.2, 5.43) and Cicero (de Off. 3.17), had an important influence on the law of sale. Gaius tells us (1.6) that the aedilician [p. 1.705]jurisdiction was exercised in provinces of the Roman people by quaestors, but that there were no such quaestors in the provinces of the emperor. Such magisterial edicts, so long as they remained in force, were reckoned an integral part of the law of Rome, among the sources of which they are enumerated (e. g. Cic. Top. 5; Gaius, 1.2): they are said (Dig. 44, 7, 2) to constitute the jus honorarium as distinct from the jus civile, because their authors were invested with the honores or higher magistracies. But the edicts of which we hear most are those of the. praetors ( “amplissimum jus est in edictis duorum praetorum,” Gaius, 1.6): hence jus praetorium and jus honorarium are sometimes used as equivalent and interchangeable expressions.

The term edictum signifies generally any public notice made by a competent authority (Cic. in Pison. 8; Liv. 2.30, 28.25, 31.6; Tac. Ann. 1.7; Gel. 13.15; Dig. 1, 16, 4, 3; 49, 16, 4, 13), and in particular, under the republic, rules promulgated by a magistrate by writing them in albo and placing them, like the leges (Dionys. A. R. 3.36), in a conspicuous place, “unde de plano recte legi potest:” hence the edicts of the magistrates are described by Justinian (Inst. 1.2, 3) after Ulpian (Dig. 1, 1, 5, pr.) as part of the jus scriptures of Rome. It became usual for the praetor, at the commencement of his year of office, to proclaim by an edict the principles which, apart from the established rules of the jus civile, he intended to observe in the administration of justice; and eventually this usage developed into a constitutional obligation. Such edict was called edictum perpetuum, because the practice was constant and unbroken, and was contrasted with edicta repentina (Cic. in Verr. 3.14), isolated orders which the praetor made during, and not at the commencement of, his year of office, and generally, though not always, relating to some specific case. Not unfrequently, however, a praetor acted contrary to his edictum perpetuum (e. g. Verres, Cic. in Verr. 1.46), or varied the rules therein stated by subsequent edicta repentina: but this was made illegal by a Lex Cornelia, B.C. 67 (Asconius ad Cic. pro Cornelio; D. C. 36.23).

Technically speaking, no edictum perpetuum had validity for a longer period than its author's tenure of the praetorship, for it was upheld only by his imperium: hence Cicero (in Verr. 2.1, 42) calls the edict annua lex. But it became the rule, at least as early as the time of Cicero (de Invent. 2.22), for each successive praetor to adopt, in substance, the edict of his predecessor, with such additions, abrogations, and changes as he deemed expedient (Cic. in Verr. 2.1, 44), such part as he adopted being called edictum tralaticium. In this way the edict gradually grew into a considerable and permanent body of law, the excellence of which was guaranteed by the ease with which obnoxious innovations made by one praetor could be repealed by his next successor. Edicts, formulae, and actions which were of special importance, though remaining part of the permanent edict, were commonly named after their original authors: e. g. Edictum Carbonianum; formula Rutiliana, Aquiliana; judicium Cascellianum; interdictum Salvianum; actio Publiciana, Pauliana, Serviana, &c.

Originally there had been but one praetor; but in 247 B.C. a second one, called praetor peregrinus, to distinguish him from the praetor urbanus, was established for the administration of justice at Rome between aliens or between aliens and Roman citizens. When the state extended her territories beyond the limits of Italy, new praetors were created to act as governors of the new provinces for short terms of years: in the time of Julius Caesar they numbered altogether sixteen. All of these praetors issued annual edicts, and those of the praetors urbanus and peregrinus at any rate were handed on from year to year, and thus were in point of fact permanent and constantly growing bodies of law. The edict of the praetor peregrinus is commonly represented as consisting of rules which he found were practically acknowledged as binding by all the Italian peoples with whom Rome had any dealings, whence the Romans are supposed to have first got the conception of a jus gentium: but other writers hold that even at this time the Roman law consisted of two portions--one purely indigenous and peculiar to the race, the other common to the other Italian tribes, and that the latter part was applied by the praetor peregrinus in adjudicating on suits in which at least one party was an alien. The edicts issued by the praetors who governed provinces, and who under the empire got the name of praesides, were termed edicta provincialia: some parts of them appear to have been handed on from governor to governor (Cic. Fam. 3.8; ad Att. 5.21), others to have been taken from the edictum urbanum (Cic. in Verr. 2.1, 46; 3, 65): in cases not otherwise provided for Cicero proclaimed, when a provincial governor, that he would follow the perpetual edict of Rome (ad Att. 6.1).

It is, however, the urban edict which is of the greatest importance and interest, because it was binding on Roman citizens inter se, and therefore alone formed part of the Roman law in the strictest sense of the term. Many of the most considerable rules and legal doctrines which it established had been developed before the time of Cicero (in Verr. 1.44): for instance, the doctrine of bonorum possessio or praetorian inheritance; the system of bankruptcy execution, known as venditio or emptio bonorum: and the theory of possession as distinct from ownership (dominium) protected by special praetorian remedies of its own [INTERDICTUM]. Indeed, in Cicero's time (de Legg. 1.5; 2.23) the edict was regularly read in the course of legal study, and the jurists who were his contemporaries had begun to comment on it in lieu of the Twelve Tables and other early statutes of the republican period. Under the early empire it continued to receive, year by year, fresh development from the hands of successive praetors, though owing to the practical curtailment of their authority by the imperial power their activity in this direction seems to have diminished; the necessary additions and alterations in the law being made rather by direct legislation, and changes being effected in the edict principally in order to accommodate the system of procedure to the new rights and duties which that legislation created. It may easily be believed that, when neither comitia [p. 1.706]nor senate ventured to enact a statute unless it was initiated by the emperor personally or with his assent, a magistrate would have hesitated to repeal, alter, or extend the law with the boldness and independence which had been usual under the free republic.

The year 131 A.D. was a notable one in the history of the jus praetorium. The Emperor Hadrian then issued, through Salvius Julianus, praetor designate (Eutrop. 8.17), a revised edition of the edictum urbanum, combining with it the edict of the aedile (Theoph. 1.2, 7: “Const. omnem reipub.” § 4), and probably also that of the praetor peregrinus and parts of the edicta provincialia. This, which was arranged according to subjects in Titles, was called the “edictum perpetuum” par excellence, and was published with the force of law for the whole empire, so that the jus honorarium from this time onward had statutory validity, instead of depending on an annual re-enactment. Hence-forward, too, though the magistrates in constitutional theory retained their jus edicendi, the old practice, according to which each praetor issued an edictum perpetuum at the commencement of his year of office, was abandoned. The jurists after Hadrian regard the edict of their own time as something permanent and unalterable except by the action of the emperor: and Hadrian himself evidently directed that any defect which might subsequently be discovered in the law should be supplied by imperial legislation (Justinian in Const. “tanta” de confirm. Digest. § 18). This codification of the edicts seems to have been in some way connected with another reform of Hadrian's, by which he divided the whole of Italy into Rome, with its immediately surrounding territory, and four other districts: Rome and its suburbs remained under the authority of the old magistrates, and among them of the praetor, while the other districts were placed under the administration of a new class of officials, called at first consulares, and after M. Aurelius (A.D. 61-180) juridici.

The scope of the edict is described by the jurist Papinian as “adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem publicam” (Dig. 1, 1, 7); its purpose was ancillary to that of the civil law, the voids in which it supplied, and in some cases mitigated its hardships even by the enforcement of a contrary rule. An example of its auxiliary operation may be seen in the cases in which it sanctioned a lex imperfecta (e. g. by the exceptio legis Cinciae), and in the great use made by civil-law heirs of the interdict Quorum bonorum, a remedy designed in origin for praetorian successors only. Of its supplementary character no better illustration can be cited than many of the classes of bonorum possessio, especially that given to cognates, who under the civil law had no right of intestate inheritance whatever: and in in integrum restitutio it is found correcting and even subverting the operation of the jus civile.

The precise mode in which the praetor worked through the edict is deserving of notice. Technically speaking, he had no legislative authority: but from the enactment of the Lex Aebutia (of unknown date; see LEX) he had the complete control of the courts and of the system of procedure, and this enabled him to practically alter and extend the substantive law almost as absolutely as any legislator. “If so and so happens,” he proclaimed, “ judicium dabo ” : and by giving an action he practically gave a substantive legal right which before had not existed. In other cases he assisted a defendant by new forms of defence (exceptiones), awarded possession of property under an equitable title, and protected it with interdicts, and cancelled legal rights and duties by restoring parties in statum quo; and in fact, by allowing or disallowing actions or other forms of legal process, he was enabled to introduce a large number of new and important legal principles. The characteristic features of the law which he thus created were its liberality and common sense. It has none of the peculiarities of the jus civile--formality, exclusiveness, rigidity; the vast majority of its rules are what we should call rules of equity, fitted by their very equitableness and simplicity to endure through all time. It is in fact based on the jus gentium, or rather on the natural sense of right, the naturalis aequitas, in which the Romans recognised that law's internal and generative principle, and which gave the edict such an honourable prominence among the sources of their positive law.

The juristic commentaries on the edict have been already referred to. The first of them was by Aulus Ofilius, a contemporary of Cicero. Labeo, the founder of the Proculian school of jurists, composed four books on the edictum urbanum; and another work of his, in thirty books, on the edict of the praetor peregrinus, is cited by Ulpian in dig. 4, 3, 9. Gaius wrote commentaries on the edicts of both praetors and of the aedile, and there were numerous treatises on the same subject by other eminent lawyers (e. g. Ulpian and Paulus), besides other juristic writings not expressly on the edict, but which followed its arrangement: e. g. the epitome of Hermogenianus (Dig. 1, 5, 2). The result of this continuous annotation was that the commentaries obtained more authority than the edict itself, and became the basis of instruction for law students, especially those of Ulpian and Paulus. Some few fragments of the older edicts are found in the Roman writers, but it is chiefly from the works of the great jurists, as preserved in the Digest, that we knew anything of the edictum perpetuum of Salvius Julianus, and in these the actual words of the praetor are frequently preserved. The arrangement of this great edict was to a considerable extent the basis of that of Justinian's Digest, and it was followed still more closely in the Code.

The edicta or edictales constitutiones of the emperors are mentioned under CONSTITUTIO.

(The most complete collections of the fragments of the edicts are those of Wieling, Fragmenta Edicti Ferpetui, Franek. 1733, and of Rudorff: the latest treatise on the subject is by Lenel, Das Edictum perpetuum, Leipzig, 1883. Cf. also Walter, Gosch. des röm. Rechts, § § 236, 312, 429, 440; Savigny, Gesch. des röm. Rechts. im Mittelater, ch. i. System, i. p. 109 ff.; Puchta, Institutionen, 8th ed., vol. i. pp. 184-201, 314-322; Böcking, Institutionen, § 16.)


hide References (10 total)
  • Cross-references from this page (10):
    • Cicero, Letters to his Friends, 3.8
    • Cicero, Against Verres, 2.1
    • Cicero, Against Verres, 2.2.44
    • Tacitus, Annales, 1.7
    • Livy, The History of Rome, Book 28, 25
    • Livy, The History of Rome, Book 39, 44
    • Livy, The History of Rome, Book 31, 6
    • Livy, The History of Rome, Book 2, 30
    • Gellius, Noctes Atticae, 13.15
    • Cicero, Topica, 5
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