But it was the tendency of the whole jurisprudence of the time, and
by no means peculiar to the praetorian creation. Nowhere in the
texts are the praetors spoken of as the mouthpieces of equity as
distinguished from law. Such a distinction recurs frequently in
Cicero; he identifies aequitas with the spirit of a law or agreement,
and jus with its letter, but it is in order to sing the praises not of
the praetors but of the pleaders who maintained the former as
against the latter, and of the judges who were persuaded by their
arguments. Much of what was contained in the edict might quite
as well have been embodied in statute, and we know that in time
statute came to its aid; witness a very remarkable provision of it—“I
will give bonorum possessio as may be enjoined by statute,
whether comitial enactment or senatusconsult.”
Of the edicts of the peregrin praetor and their relation to that of his urban colleague little is known. That they differed in some respects there can be no doubt, for in the lex Rubria (49 B.C.) for settling the government of Cisalpine Gaul the magistrates are directed, with reference to a certain action, to formulate it in the way prescribed in the edict of the peregrin praetor. The latter, therefore, must to some extent have been in advance of that of the urban praetor, probably in this respect, that, being prepared primarily for the regulation of questions affecting non-citizens, it more thoroughly than the other avoided formalities that were competent only to citizens, and thus to a greater extent simplified procedure. The edicts of the provincial governors must have varied according to circumstances, being in all cases composites of provisions, more or less numerous, borrowed from the edicts of the praetors and additions suggested by the peculiar wants of the different provinces for which they were framed (provinciale genus edicendi). As for those of the curule aediles, who amongst other duties were charged with the supervision of markets, their range was very limited; their most important provisions having reference to open sales of slaves, horses and cattle, and containing regulations about the duties of vendors exposing them, and their responsibility for latent faults and vices. They also had cognisance of certain delicts committed in the streets and markets. As the aediles had no imperium their restricted jus edicendi may have been conferred on them by custom or statute.
Consuetude, Professional Jurisprudence and Res Judicatae.—Great as may be the difficulty experienced by philosophical jurists in Consuetudinary law. defining the ground of the authority of consuetudinary law, there is no room to dispute the importance of its contributions to every system of jurisprudence ancient and modern. The men who first drew, accepted and endorsed a bill of exchange did as much for the law as any lawgiver has ever accomplished. They may or may not have acted on the advice of jurists; but, whether or not, they began a practice which grew into custom, and as such was recognized by the tribunals as a law-creating one—one conferring rights and imposing obligations. There is much of this—far more probably than is commonly imagined—in the history of every system of law.
In Rome the process was sometimes wonderfully expeditious; witness what Justinian narrates of the introduction and recognition of testamentary trusts and of codicils to last wills, both in the time of Augustus. It can hardly be doubted that the literal contract per expensilationem originated in the same way, probably in the end of the 5th or the beginning of the 6th century of the city. The keeping of domestic account-books may have been enjoined and enforced by the censors; but it was custom, and neither statute nor praetor's edict, that made an entry in them to another person's debit creative of a claim against the latter for certa pecunia credita, that might be made effectual by an action under the Silian law. It must have been in exactly the same way that mutuum, formless loan of money, came to be regarded as the third variety of certa credita pecunia, and to be held recoverable under the same action. True, this could not have been attained without the co-operation of the judices. But then each case was as a rule tried by a single private citizen, whose office ended with his judgment, and who was untrammelled by the authority of any series rerum judicatarum.[1] He had simply to decide whether in his view expensilation or formless loan created such an obligation as was covered by the words pecuniam dari oportere. There may for a time have been a divergent practice, contradictory findings, as Cicero says there were in his day upon the question whether aequitas or jus strictum was to be applied to the determination of certain matters; but the eventual unanimity of judicial opinion in one direction was but the expression of the general sentiment of the citizens, of whom the judices were the representatives.
These are but examples of the way in which consuetudinary law was constructed. It required the combined action of the laity and the judices, both at times acting under professional advice; in some cases even that of the praetors was necessary. It would have been impossible, for instance, to have introduced the consensual contracts into the Roman system and determined what were the obligations they imposed on either side, without magisterial co-operation in framing the formulae that were to be submitted to the judges. Taking the action on sale as an illustration, the formula substantially was this: “It being averred that the defendant sold such or such a thing to the plaintiff, whatever, judge, it shall appear that the defendant ought in good faith to give to or do for the plaintiff in respect thereof, in the money equivalent thereof condemn the defendant; otherwise, acquit him.” It is very manifest that the free hand here given to the judge must immensely have facilitated the reception of customary doctrine into the law. The judge was to a great extent the spokesman of the forum; his judgment was formed in accordance with current public opinion, which he had ample opportunity of gauging; it was the reflection of that general sentiment of right, which, phrase it how we may, is the real basis of all customary law. And so in an action for establishing a right of property in a res nec mancipi. The formula was very simple: “If it appear that such or such a thing belongs to the plaintiff in quiritary right, then, judge, whatever be its value for the plaintiff, in that condemn the defendant; should it appear otherwise, acquit him.” The primary duty of a judge on such a remit was to determine whether the title on which the plaintiff founded his pretensions gave him a right that came up to property; and it can hardly be disputed that it was by the decisions of a series of judges, in a series of such actions, that the long list of natural modes of acquiring property given by Justinian under technical names was gradually brought into view. Those decisions, whether upon the obligations of a vendor, direct or indirect, or upon the sufficiency of a title founded on by a party averring a right of property by natural acquisition, doubtless were in many cases arrived at under professional advice, and were in all cases embodied in judgments. But that does not in the least deprive the doctrine deduced from them of its character of customary law. It was not until the Empire that the opinions of the jurists submitted to a judge (responsa prudentium) were invested with binding authority. During the Republic, if a judge deferred to them, it was simply because he regarded them as in consonance with well-qualified public opinion; and what a series of consistent judgments of this sort built up was in the strictest sense a law based on consuetude.
As regards the professional jurists in particular it has already been observed that, according to the testimony of the Roman historians, Professional jurisprudence. the law was a monopoly of the patricians down at least to the middle of the 5th century of the city. Livy goes so far as to speak of it as in penetralibus ponlificum repositum,—among the secrets of the pontifical college. It was so doubtless during the regal period. But after the publication of the XII. Tables this could be the case only in a qualified sense, the pontiffs becoming the official interpreters of that which in the letter was patent to the world. The Jus Flavianum, with its formulary of actions, about the year 304 B.C., the practice of giving advice in law in public adopted by Tib. Coruncanius in the beginning of the 6th century, and the Tripertita (also called Jus Aelianum), embodying the current interpretatio, some fifty years later, put an end not only to pontifical but to patrician monopoly.[2] From this time onwards there was a series of jurists (jurisconsulti, jurisperiti, jurisprudentes or prudentes, as they were styled), gradually increasing in number and eminence, of whom a list is given by Pomponius, and many of whom are signalized by Cicero, particularly in his Orator and Brutus. They occupied themselves in giving advice to clients (see Patron and Client), teaching, pleading at the bar, framing styles of contracts, testaments, and various other deeds of a legal character, or writing commentaries or shorter treatises on different branches of the law.[3]
iii. Substantive Changes in the Law during the Period.
The Publician Edict.—There were necessarily many changes during the period in the law of property and of minor real rights, Publician edict. several of them of no mean importance. But the greatest of all was that effected by the Publician Edict,[4] indirectly recognizing the validity (1) of what Theophilus calls bonitary ownership as an actual though inferior ownership of res mancipi, and (2) of what got the name of bonae fidei possessio
- ↑ It was not until the Empire that a “series rerum perpetuo similiter judicatarum,” a uniform series of precedents, was held to be law. During the Republic a judge was much freer, and not only entitled but bound to decide according to his own notion of what was right, taking the risk of consequences if his judgment was knowingly contrary to law.
- ↑ There is some doubt whether the Jus Aelianum mentioned by Pomponius (Dig. i. 2, 2, 7) was not an independent collection of actions by Sextus Aelius different from his Tripertita mentioned (Dig. i. 2, 2, 38). See Bremer, Jurispr. Ante-Hadriana (1896), i. p. 15.
- ↑ Sanio, Zur Geschichte der röm. Rechtswissenschaft (Königsberg, 1858); Grellet-Dumazeau, Études sur le barreau romain (2nd ed., Paris, 1858); Karlawo, Röm. Rechtsgesch. i. § 61; Roby, Introd. to Digest, chaps. vii. and viii.; Jörs, Röm. Rechtswissenschaft (1888), vol. i.; Bremer, Jurispr. Antehadriana, vol. i.
- ↑ See Ribéreau, Théorie de l’ in bonis habere ou de la propriété prétorienne (Paris, 1867); Huschke, Das Recht der Publicianischen Klage (Stuttgart, 1874); Schulin (rev. Huschke), in the Krit. Vierteljahrschrift, xviii. (1876), 526 seq.; Lenel, Beiträge zur Kunde d. praetorischen Edicts: I. Das Public. Ed. (Stuttgart, 1878); Appleton, Histoire de la propriété prétorienne (Paris, 1889);
