edict; for the Praetor did not create the rulings on which these civil actions and formulae were based. But it contained as well the Formulae which were the creation of him and his predecessors—the Formulae which were the product of what was known as ‘Magistrate’s Law’ (Jus Honorarium); and each of these Formulae was no doubt preceded, at least eventually, by the Edictum or ruling in law, which might have grown out of the Formula, but finally served as its basis and justification. Thus the edictal part of the Album was really a series of separate Edicta, each edict being followed by its Formula; it was regarded as being a supplement to that portion which specified the Actions of Civil Law; and it really had this character of being a mere supplement in so far as ‘honorary’ actions were seldom granted where a ‘civil’ action would have sufficed. But its supplementary character was of a very far-reaching kind. Thus the edicts might take cognizance of cases not provided for by the civil law at all, they might replace the mechanism provided by the civil law for attaining a legal end, and they might alter the character of the end itself. All these functions are summed up by Papinian when he says that the work of the Jus Praetorium was ‘to assist, to supplement, to correct the civil law for the sake of public utility Ref. 094.’ The edict of the Praetor Peregrinus was necessarily still more of a substitute for the civil law than that of the Praetor Urbanus. For, since the Legis Actiones could not (at least in many cases) be employed by Peregrini Ref. 095, he was forced to invent equivalents for these forms of action.
The third Edictum Perpetuum which was valid in Rome was that of the Curule Aediles Ref. 096. It was of no great content, since it was concerned exclusively with the jurisdiction over the market, and the control of public sites—a jurisdiction and control which were possessed by these magistrates. For an edict in any way comparable to those of the Praetors we must turn to the provinces. Here the governors (whether Proconsuls or Propraetors) issued notices of their intentions with respect to jurisdiction, similar to those of the Praetors at Rome as regards their permanent character and the possibility of their transmission, but peculiarly applicable to the particular governor’s special sphere of administration. A special edict was issued for each separate province (thus we read of an Edictum Siciliense) Ref. 097; but this special character did not prevent certain inter-relations between the edicts of separate provinces. We know that the Provincial Edict might be prepared at Rome, before the governor went to his province Ref. 098; and although the man who prepared it (of course, with the assistance of professional lawyers), tried to model his rules as closely as possible on those of his predecessor in the province to which he was going, yet he might borrow improvements which had been initiated by the late governor of some other province. Again, the same man might pass from one province to another, and, much as the circumstances of the separate spheres of government differed from one another, it is inconceivable that he should not have carried some of his favourite rules of procedure with him. A general conception of what a Provincial Edict should be like, must have grown up; the differences between the edicts being probably those of matter rather than of form—the matter being determined by the local customary law of the subject peoples, which Rome rigidly respected. Where there were striking differences of form, these must have been mainly due to the varieties of rights granted by the Charters of the different provinces (Leges Provinciarum). It is obvious that, where much was granted by Charter, little was left to the discretion of the governor. Where the Charter granted only a few elementary rights, he had a much freer hand.
One important point in which the governor of a province differed from a Praetor at Rome, was that he was an administrative as well as a judicial official. Hence the Provincial Edict had to contain a good many rules of administrative law which were not to be found in its counterpart at Rome. This portion of the edict spoke about the financial relations of the states of the province to the Roman government and to its agents, and stated the rules which regulated the relations of the tax-gatherers (Publicani) to the tax-payers. The rest of the edict which took a definite shape, covered the procedure which the governor promised to apply for the recovery of certain rights by individuals—rights such as those entailed in inheritance or the seizure of a debtor’s goods. These rules were based on those of Roman law; but they were mere outlines capable of adaptation to the local customs of the subject states. But there was, at least in certain provinces, a portion of the edict, still dealing with the rights of individuals, which assumed no definite shape. There were points on which the governor did not care to frame rules until he knew the emergencies which he would have to meet. He was content (at least Cicero was, when governor of Cilicia) with promising that, in issuing decrees on such points, he would conform to the principles of the urban edicts Ref. 099.
§ 12.: The debts which this development of law owed to the Italian and provincial world.
If we ask what was the great motive power which lay behind this development of law through interpretation by the magistrate, we shall find it to consist, partly in contact with foreign peoples; partly (although probably in a less degree) in the new educational influences which were moulding the lives of the Roman nobles. The tendency to experiment and adaptation, to a disbelief in anything fixed and rigid, is thoroughly Roman; but external circumstances were very largely responsible for the particular lines on which this tendency was to move. The legal consequence of contact with foreign races is summed up in the phrase Jus Gentium. The word ‘Gentes’ in this collocation means ‘the world Ref. 100’; and it is possible that, when the expression Jus Gentium was first formed, Rome regarded herself as rather outside this world whose customs she was contemplating, although even her earliest practice showed an inner conviction that she was a very integral part of it indeed. The moment that she began to trade with the foreigner, whether in Italy, Sicily, or Africa, she must have seen that her own Jus Civile was an impossible basis for trading relations. If the Roman had no liking to submit to the intricacies of the law of some other state, the foreign trader had equally little inclination to conform to the tedious formalities of Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on the claims of Private International Law. This common ground was found in the Jus Gentium; the common court was that of the Recuperatores of early times Ref. 101. The history of the Praetorship leads us to think that the Jus Gentium must have begun to exercise a modifying influence on Roman law long before the middle of the third century b. c.; for we have seen that for more than 120 years a single Praetor administered justice both to Cives and Peregrini Ref. 102. A single magistrate therefore published and dealt with two distinct systems of law. But it would seem to be impossible that he could have kept the two absolutely distinct, especially when the simplicity and universality of the Jus Gentium stood in marked contrast to the complexity and singularity of the Jus Civile. The rigidity of the forms of Roman law may have been shaken even at this early period. But when a second Praetor was appointed to frame a special edict for Peregrini, the Jus Gentium must have found a still more complete and systematic expression. The procedure by which the legal claims of aliens were asserted must have been more fully elaborated. This was the procedure by Formula, which was to furnish the prototype for the method adopted by the Praetor Urbanus, and to replace the older procedure by Legis Actio in most of the Roman courts of law. Nor can we ignore the influence of the Edictum Provinciale, although this came later and at a time when the typical elements in Roman procedure had been fixed. Rome gained some ideas from the Hellenised East, as in early days she had gained some from Magna Graecia. It was probably from contact with the East that she gained the knowledge of such simple forms of written agreement as Syngrapha and Chirographa, and that she acquired her theory of Mortgage (Hypotheca).
§ 13.: The idea of the Law of Nature; its influence on Slavery.
The Jus Gentium could not pass from being a mere fact to being an ideal without gaining some theoretical justification for its existence and acceptance. This justification was found in the idea that it was a product of the Law of Nature. It is not improbable that the superior ‘naturalness’ of the Jus Gentium to the Jus Civile had begun to appeal to the Romans long before
