Page:EB1911 - Volume 23.djvu/584

Rh the statutory instrument whereby the formular system of procedure was substituted for that per legis actiones. Its date was probably about the end of the 6th or beginning of the 7th century of the city. Girard, who has examined the question with great care, places it in the first third of the 7th century, and, though his reasoning is not quite conclusive, it largely refutes the arguments of older writers, who in many cases put the date a century and more earlier. It is the opinion of Wlassak that it was a piece of tentative legislation, and that as regards citizens it in no wise abolished the actions of the law but merely made the formulary procedure alternative to them, according as the praetor, on the representation of the parties, might determine in each case; formulae, in his view, being first made compulsory, subject to a few exceptions, by the Julian laws. This is a probable theory and is now adopted by many recent writers. The main purpose of the statute seems to have been to empower the urban praetors to adapt existing remedies to altered circumstances, and inter alia to fashion new actions on the jus civile for the use of the peregrins, to whom the legis actiones were rarely, if at all, available. But, whatever may have been its actual provisions, the result was the adoption of a procedure which gradually supplanted that by the actions of the law, which was much more pliant than the latter, and whose characteristic was this—that, instead of the issue being declared by word of mouth by the parties, and requiring as a rule to embody with perfect accuracy the statutory provision on which it was based, it was formulated in writing under the direction of the praetor, in the shape of an instruction to the judge to inquire into the merits of the dispute, with power to condemn or acquit according to his finding. A statute was necessary for accomplishing such an innovation, not only because the existing procedure was directly prescribed by statute, but also among other reasons because the legis actiones were favourites of the pontifical colleges (being often profitable to them), and any attempt by the magistrates to dispense with them would have been opposed by these powerful bodies. It is now the dominant opinion among modern writers, and it seems based on reasoning which cannot be gainsaid, that even prior to the lex Aebutia written formulae were employed in practice, particularly if not exclusively in the peregrin praetor's court, and that one of the objects of the statute was to legalize similar procedure in civil actions. All such formulae granted by the peregrin praetor must of course have been in factum conceptae. Unless we hold this view it is difficult to see by what means the rights and obligations of peregrins in their transactions inter se or with citizens could have been enforced, as civil actions, save perhaps in exceptional cases where by treaty they enjoyed jus commercii, were not open to them. Written instructions to the recuperators or other judges for trying suits in which a peregrin was a party would be a practical necessity, for these judges would have to decide according to jus gentium, whose rules would probably be strange to them, and their instructions would therefore have to be precise and definite. Verbal instructions would have led to miscarriages of justice. From this point of view we can see how the peregrin praetor became the primary organ in developing jus gentium. But there is some reason for holding that the urban praetor had also, before the Aebutian law, occasionally exercised his imperium by granting actions in factum, and in this way perhaps enforced it number of contracts and other obligations in which elements of equity and good faith were present and which the jus civile left remediless. Actions of this kind among cities would be in the nature of arbitria accepted voluntarily by the parties. The latter view certainly explains several apparent anomalies in the later law, for which no other good explanation can be found, as, for instance, the fact that in deposit and commodate actions in factum as well as in jus might be brought. Also the actio in factum for enforcing a contract of fiducia can in this way be explained. It also serves to throw light upon the development of some of the bonae fidei contracts.

Provincial Conquests.—The growth of commerce and the enormous increase of wealth, which made great capitalists and enabled them

through the agency of freedmen and slaves to carry on trade on a scale hitherto unknown, and which thus helped to foster the jus gentium, were no doubt due to a large extent to provincial conquests. But these operated also in other directions. The officials who proceeded to the conquered provinces as governors found themselves face to face with laws and institutions in many respects differing from those of Rome. Political considerations dictated how far these were to be respected, how far subverted. In

some provinces, more especially the Eastern ones, it was thought unnecessary to do more than supplement the existing system by the importation of doctrines of the jus gentium and the procedure of the praetor's edicts; while in others, in which it was deemed expedient to destroy as rapidly as possible all national feeling and every national rallying point, a Romanizing of all their institutions was resorted to, even to the extent of introducing some of the formal transactions which previously had been confined to citizens. But in either case there was a reflex action. The native institution had to be studied, its advantages and disadvantages balanced, the means considered of adapting it to the praetorian procedure, and the new ideas so presented as to make them harmonize as far as possible with the old. All this was a training of no small value for those who, on their return to Rome, were to exercise an influence on legislation and the administration of the law. They brought back with them not merely an experience they could not have obtained at home, but sometimes a familiarity with foreign institutions that they were very willing to acclimatize in Italy. Rome thus enriched its law from the provinces, deriving from them its emphyteutic tenure of land, its hypothec, its Rhodian law of general average and a variety of other features that were altogether novel. They were sanctioned by tacit recognition, by edicts of the praetors and in other ways; but, in whatever way received, they were indirectly fruits of provincial conquest.

Spread of Literature and Philosophy.—The effect on Roman civilization of the addiction of educated men in the later Republic

to literature and philosophy is a matter for consideration in connexion with Rome's general history. It is not proposed to consider here the question how far specific doctrines of Roman law bear the impress of the influence of the schools, especially that of the Stoics; it is a subject much too large to be disposed of in a few lines. The matter is mentioned simply for the sake of noting that the spirit of critical inquiry aroused and fostered by literary and philosophical study, seriously and conscientiously undertaken, contributed greatly to promote a new departure in jurisprudence that became very marked in the time of Cicero—the desire to subordinate form to substance, the word spoken to the will it was meant to manifest, the abstract rule to the individual case to which it was proposed to apply it. This was the first effort of what then was called equity to temper and keep within the bounds the rigour of the jus strictum. The praetors, the judges and the jurisconsults all had their share in it. Although modern jurists are prone to speak of praetorian equity as if it were a thing apart, yet the same spirit was leavening the law in all directions and in the hands of all who had to deal with it, the difference being that the form and publicity of the edict gave to its applications by the praetors a more prominent and enduring record than was found in the decisions of private judices or the opinions of counselling jurisconsults.

Decline of Religion and Morals.—It would be equally out of place to enlarge here on the causes and manifestations of

that decline in religious sentiment and public and private virtue which was fraught with such disastrous results in the later days of the Republic. The private law was influenced by it to a considerable extent, alike in those branches which regulated the domestic relations and those which dealt with property and contract.

The ever-increasing disregard of the sanctity of the marriage tie is one of those features in the history of the period which strikes even the most unobservant. While from the first the law had denounced causeless separation and visited it with penalties, in principle it maintained the perfect freedom of repudiation on the part of the husband. With the simple and frugal habits of the first five centuries of Rome, and the surveillance of the consilium domesticum, the recognition of this principle produced no evil results; family misunderstandings were easily smoothed over, and divorces were of rare occurrence. But during the 6th and 7th centuries of the Republic a change to looser morals took place, and the family council lost much of its control. This was doubtless largely due to the decay of hand marriages, wives consequently remaining outside their husband's familia and often holding