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p444 Edictum

Article by George Long, M.A., Fellow of Trinity College
on pp444‑446 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

EDICTUM. The Jus Edicendi, or power of making edicts, belonged to the higher magistratus populi Romani, but it was principally exercised by the two praetors, the praetor urbanus and the praetor peregrinus, whose jurisdiction was exercised in the provinces by the praeses. The curule aediles also made many edicts, and their jurisdiction was exercised (under the empire at least) in the provinciae populi Romani by the quaestors (Gaius, I.6). There was no edict promulgated in the provinciae Caesaris. The tribunes, censors, and pontifices also promulgated edicts relating to the matters of their respective jurisdictions. The edicta are enumerated by Gaius among the sources of Roman law, and this part of the Roman law is sometimes called in the Pandect, Jus Honorarium (Dig.44 tit. 7 s52), apparently because the edictal power belonged to those magistrates only who had the honores, and not so much ad honorem praetorum (Dig. 1 tit. 1 s7). As the edicts of the praetors were the most important, the jus honorarium was sometimes called jus praetorium; but, properly, the jus honorarium was the term under which was comprehended all the edictal law.

Edictum signifies, generally, any public notice made by a competent authority (Tacit. Ann. I.7; Liv. XXXI.6, II.30). But is specially signifies, under the republic, a rule promulgated by a magistratus, which was done by writing it on an album, and placing it in a conspicuous place, "Unde de plano recte legi potest." From this circumstance, the Edict was considered to be a part of the jus scriptum. As the office of a magistratus was annual, the rules promulgated by a predecessor were not binding on a successor, but he might confirm or adopt the rules of his predecessor, and introduce them into his own Edict, and hence such adopted rules were called edictum tralatitium (Cic. ad Att. III.23, V.21; ad Fam. III.8; in Verr. I.45), or vetus, as opposed to edictum novum. A repentinum edictum was that rule which was made (prout res incidit) for the occasion (In Verr. III.14).perpetuum edictum was that rule which was made by the magistratus on entering upon office, and which was intended to apply to all cases to which it was applicable, during the year of his office: hence it was sometimes called also annua lex. It was not called perpetuum because the rules were fixed, but because each praetor published his edict upon entering on his office, and thus there was a perpetuum (continuous) edictum. Until it became the practice for magistratus to adopt the edicta of their predecessors, the edicta could not form a body of permanent binding rules; but when this practice became common, the edicta (edictum tralaticium) soon constituted a large body of law, which was practically of as much importance as any other part of the law. The several edicta, when thus established, were designated by the names of their promulgators, as the Edictum Carbonianum; or they were named with reference to the formula, and the actio which they established, as Aquiliana, Publiciana, Rutiliana.

The origin of the edictal power cannot be historically shown; but as the praetor was a magistrate established for the administration of justice on account of the occupations of the consuls, and the consular power was the representative of the kingly power, it seems that the jus edicendi may have been a remnant of the kingly prerogative. However this may be, the edictal power was early exercised, and so far established, that the jus praetorium was a recognised division of law in and before the time of Cicero (in Verr. I.44), in whose age the study of the Edict formed a part of the regular study of the law (de Leg. I.5, II.23). The edict of the aediles about the buying and p445selling 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 Galliae Cisalpinae, which probably belongs to the beginning of the eighth century of the city. The Lex CorneliaB.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 do 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, "ex edicto et postulari et fieri solent". 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. Servius 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 s2); 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 s7):— "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 of 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 magistratus 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 magistratus ventured to supply them; and in doing this, he must have conformed to the so‑called 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 edicendi. 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 [Usucapio]: he aided plaintiffs by fictions, as, for instance, in the Publicana 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 Publicana 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 (Rhein. Mus. für Juris, I. p51, Die Oeconomie des Edictes, 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 s9). 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 (Böcking, Instit. I.30 n11). 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 composition. If the work of Julian comprehended all these edicts, p446they must have been kept distinct, as the subject-matter of them was different. We know that the edicts of the curule aediles were the subject of distinct treatises by Gaius, Ulpian, and Paulus, and the Edictum Provinciale would, from its nature, be of necessity kept separate from all the rest. But some writers are of opinion, that the Edictum Perpetuum of Julianus made one body of law out of the edicta of the praetor urbanus and peregrinus, that there was also incorporated into it much of the Edictum Provinciale, and a large part of the Edictum Aedilitium, as an appendage at least. The Edict thus arranged and systematised was, it is further supposed, promulgated in the provinces, and thus became, as far as its provisions extended, a body of law for the empire. This view of the edictum of Julianus is confirmed by the fact of Italy being divided by Hadrian into the city of Rome with its appurtenant part, and four districts. As the edictal power of the praetor was thus limited, the necessity for a comprehensive Edict (such as the Edictum Perpetuum of Julian) is the more apparent.

There were numerous writings on the Edict besides those above enumerated. They were sometimes simply entitled Ad Edictum, according to the citations in the Digest; and there were also other juristical writings, not so entitled, which followed the order of the Edict, as, for instance, the epitome of Hermogenianus (Dig. 1 tit. 5 s2). Ultimately, the writings on the Edict, and those which followed the arrangement of the Edict, obtained more authority than the Edict itself, and became the basis of instruction.

Some few fragments of the older edicts are found in the Roman writers, but it is chiefly from the writings of the jurists, as excerpted in the Digest, that we know anything of the Edict in its later form. It seems pretty clear that the order of Justinian's Digest, and more particularly that of his Code, to some extent followed that of the Edict. The writings on the Edict, as well as the Edict itself, were divided into tituli or rubricae, and these into capita; some special or detached rules were named clausulae; and some parts were simply named edictum, as Edictum Carbonianum, &c.

The Edicta or Edictales Leges of the emperors are mentioned under Constitutio.

The Digest, as already observed, contains numerous fragments of the Edicts. The most complete collection of the fragments of the Edicts is by Wieling, in his "Fragmenta Edicti Perpetui," Franck. 1733. The latest essay on the subject is by C. G. L. de Weyhe, "Libri Tres Edicti sive de Origine Fatisque Jurisprudentiae Romanae praesertim Edictorum Praetoris ac de Forma Edicti Perpetui," Cell. 1821. The twenty-first book of the Digest (tit. 1) is on the Aedilitium Edictum. (Zimmern, Geschichte des Röm. Privatrechts; Marezoll, Lehrbuch, &c.; Rein, Das Römische Privatrecht, &c., Leipzig, 1836; Savigny, Geschichte des R. R., &c. vol. 1 c1; Savigny, System, &c., vol. 1 pp109, &c., 116, &c.)

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