EDICTUM
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.)
[
J.B.M]
