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445

EDICTUM.

selling of slaves is mentioned by Cicero (de Off. iii. 17) ; the Edictiones Aedilitiae are alluded to by Plautus (Capt. iv. 2, v. 43) ; and an edict of the praetor Peregrinus is mentioned in the Lex (ialliae Cisalpinae, which probably belongs to the begin­ning of the eighth century of the city. The Lex Cornelia, B. c. 67, provided against abuses of the edictal power, by declaring that the praetors should decide in particular cases, conformably to their perpetual edict. The edicts made in the provinces are often mentioned by Cicero. They were founded on the edictum urbanum, though they likewise comprehended rules applicable only to the ad­ministration of justice in the provinces, and so- far they were properly edictum provinciale. Thus Cicero (ad Att. vi. 1) says, that he promulgated in his province two edicta ; one provinciale, which, among other matters, contained every thing that related to the publicani, and another, to which he gives no name, relating to matters of which he says, <<r ex edicto et postulari et fieri sclent.'1 As to all the rest, he made no edict, but declared that he would frame all his decrees (decreta) upon the edicta urbana. It appears, then, that in the time of Cicero the edicta already formed a large body of law, which is confirmed by the fact, that, in his time, an attempt had been already made to reduce it into order, and to comment on it. Ser-vius Sulpicius, the great jurist and orator, the friend and contemporary of Cicero, addressed to Brutus two very short books on the Edict, which was followed by the work of Ofilius (Pomponius, Dig. 1. tit. 2. s. 2) ; though we do not know whether the work of Ofilius was an attempt to collect and arrange the various edicta, like the sub­sequent compilation of Julian, or a commentary like those of many subsequent jurists (Ofilius edictum praetoris primus diligenter composuit).

The object of the Edict, according to the Roman jurists, was the following (Papinianus, Dig. 1. tit. 1. s. 7):—"Adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem publicam : " the Edict is also described as " viva vox juris civilis." It was, in effect, an indirect method of legislating, and it was the means by which numerous rules of law became established. It was found to be a more effectual, because an easier and more practical way of gradually en­larging and altering the existing law, and keeping the whole system in harmony, than the method ot direct legislation ; and it is undeniable that the most valuable part of the Roman law is derived from the edicts. If a praetor established any rule which was found to be inconvenient or injurious, it fell into disuse, if not adopted by his successor. The publicity of the Edict must also have been a great security against any arbitrary changes, for a inagistratus would hardly venture to promulgate a rule to which opinion had not by anticipation al­ready given its sanction. Many of the rules pro­mulgated by the Edict were merely in conformity to existing custom, more particularly in cases of contracts, and thus the edict would have the effect of converting custom into law. This is what Cicero seems to mean (de Invent, ii. 22), when he says that the Edict depends in a great degree on custom.

As to the matter of the Edict, it must be sup­posed that the defects of the existing law must generally have been acknowledged and felt before any inagistratus ventured to supply them ; and in doing this, he must have conformed to the so-called

EDICTUM.

natural equity (Jus Naturale or Gentium). Under the emperors, also, it may be presumed, that the opinions of legal writers would act on public opinion, and on those who had the jus edlcendi. Hence, a large part of the edictal rules were founded on the so-called jus gentium ; and the ne­cessity of some modifications of the strict rules of the civil law, and of additional rules of law, would become the more apparent with the extension of the Roman power and their intercourse with other nations. But the method in which the praetor introduced new rules of law was altogether con­formable to the spirit of Roman institutions. The process was slow and gradual ; it was not effected by the destruction of that which existed, but by adapting it to circumstances. Accordingly, when a right existed, or was recognised, the praetor would give an action, if there was none ; he would interfere by way of protecting possession, but he could not make possession into ownership, and, accordingly, that was effected by the law [Usu-capio] : he aided plaintiffs by fictions, as, for in­stance, in the Publiciana actio, where the fiction was, that the possessor had obtained the ownership by usucapion, and so was quasi ex jure Quiritium dominus (Gaius, iv. 36) ; and he also aided parties by exceptiones, and in integrum restitutio. [Jus.]

The old forms of procedure were few in number, and they were often inconvenient and failed to do justice. Accordingly, the praetor extended the remedies by action,.as already intimated in the case of the Publiciana actio. This change pro­bably commenced after many of the legis actiones were abolished by the Aebutia lex, and the neces­sity of new forms of actions arose. These were in­troduced by the praetors, and it is hardly a matter of doubt that in establishing the formulae they followed the analogy of the legis actiones. It is the conclusion of an ingenious writer (fihein. Mus. fur Juris, i. p. 51, Die Oeconomie des JEdiefes, von Heffter), " that the edict of the praetor urbanus was in the main part relating to actions arranged after the model of the old legis actiones, and that the system is apparent in the Code of Justinian, and still more in the Digest."

Under the emperors, there were many commen­tators on the Edict. Thus we find that Labeo wrote four books on the Edict, and a work of his in thirty books, Ad Edictum Praetoris Peregrini, is cited by Ulpian. (Dig. 4. tit. 3. s. 9.) Salvius Julianus, a distinguished jurist, who lived in the time of Hadrian, and filled the office of praetor, made a compilation of Edictal law by order of the emperor ; the work was arranged in titles, ac­cording to subjects (Bbcking, Instit. i. 30. n. 11). It was called Edictum Perpetuum ; and it seems, that from the date of this treatise, the name Per­petuum was more particularly applied to this edictum than to that which was originally and pro­perly called the Edictum Perpetuum. Julian ap­pears to have collected and arranged the old edicts, and he probably both omitted what had fallen into disuse, and abridged many parts, thus giving to the whole a systematic character. The work of Julian must have had great influence on the study of the law, and on subsequent juristical writings. It does not seem probable, that the edicts of the two Roman praetors, together with the Edictum Provinciale, and the edicts of the curule aediles, were blended into one in this compilation. If the work of Julian comprehended all these edicts,

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