Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/721

Rh JUS GENTIUM, ETC.] ROMAN LAW 697 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 from the time of the enactment of the Maenian law in 586 there seems to have been a change for the worse. It inter alia displaced the family council as a divorce court and transferred its functions in that matter to ajudicium de moribus, a court of inquiry nominated by the praetor, and having as its duty to decide to what extent there should be forfeiture of the nuptial provisions in case of separation or repudiation. The motives of the statute may have been of the best ; but its tendency was injurious, for not only did it indirectly facilitate divorce, but it rendered the idea of it familiar, and overthrew that respect for the domestic council which had hitherto been a check upon it. What wonder that with increasing luxury and licentiousness divorce became so common ! This looseness of the marriage bond, as was naturally to be expected, had its effect on the other family relations. The obligation of a father to provide for his children began to be lightly esteemed. The law possibly only the inter- pretation put upon the uti legassit of the XII. Tables had empowered him testamentarily to disinherit them, or in instituting them to limit their right to a mere fraction of the inheritance; but it was assumed that this power would be exercised with discretion and only when justified by circumstances. But in the latter days of the republic, amid the slackened ties of domestic life, paternal as well as conjugal duty seems to have often been lost sight of, and children disinherited or cut off with a nominal share of the inheritance in order that a stranger might be enriched. This led to the introduction by the centumviral court, without any legislative enactment or praetor's edict to warrant it, of what was called the querela inoffidosi testamenti^ challenge of a testament by a child whose natural claims had been capriciously and causelessly dis- regarded. While the practice may for a time have been hesitating and uncertain, yet before long, through means of this qiterela, the rule came to be established that every child was entitled, notwithstanding the terms of his father's testament, to at least a fourth (jtortio legitima, quarta legi- tima, the legitim of the law of Scotland and various Con- tinental countries) of what would have come to him had his parent died intestate, unless it appeared that the latter had had adequate grounds for excluding him or limiting him to a smaller share. A parent might in like manner chal- lenge an undutiful testament made by his child to his pre- judice ; and in certain cases so might brothers and sisters inter se. The decline of morals had an equally marked effect on the transactions of daily life, calling for precautions and remedies that had not been found requisite in the hey-day of the TTtcrris TWV 'Pw/Acuwv. Men no longer relied on each other's good faith unless backed by stipulations, cautions (cautiones), and guarantees. The Rutilian bankruptcy arrangements and the actio Pauliana for setting aside alienations in fraud of creditors indicate a laxity in mer- cantile dealings that was perhaps an inevitable consequence of the growth of trade and commerce. But, that such remedies as, for example, the exceptio rei venditae et traditae or the exceptio non numeratae pecuniae should have been found necessary the one an answer to a vendor (with the price in his pocket) who attempted to dispossess his vendee because some of the formalities of conveyance had been neglected, the other an answer to an action on a bond for repayment of money that by some accident had never been advanced proves that the law had now to encounter fraud in all directions, and that Graecajides had to a great extent displaced the old Roman probity. II. FACTORS OF THE LAW. Legislation. It cannot be said that during the period of nearly Legisla- two centuries and a half embraced within the present chapter the tion. private law owed much to legislation. The vast majority of the enactments of the time referred to >y the historians dealt with constitutional questions, municipal and colonial government, agrarian arrangements, fiscal policy, sumptuary prohibitions, criminal and police regulations, and other matters that affected the public law rather than the private. Those of the latter class men- tioned by Gains and Ulpian in their institutional works barely exceed a score in number ; and of these not above half a dozen can be said to have exercised a permanent influence on the principles (as distinguished from the details) of the law. Most of them were enactments of the concilium plebis or of the comitia of the tribes, to which ordinary legislation had passed as more readily convened and more easily worked than the comitia of the centuries. Edicts of the Magistrates. l The practice of propounding edicts Magis- was very ancient, and had been followed by kings and consuls long trates' before the institution of the praetorship. It was one of the most edicts, obvious ways of exercising the imperium with which the supreme magistrate was invested, to lay an injunction upon a citizen and enforce his obedience, or to confer upon him some advantage and maintain him in its enjoyment. It was one of the ways in which public order was protected where there had been no invasion of what the law regarded as a right, and where, consequently, there was no remedy by action. That the earlier edicts of the praetors were of this character issued, that is to say, with reference to particular cases, and what afterwards came to be called edicta re- pentina or prout res incidit posita there is little reason to doubt. In time a new class of edicts appeared which got the name of edicta perpetvM (or perpetuae jurisdictionis causa, proposita), announce- ments by the praetor, published on his album (as the white boards displayed for the purpose in the forum were called), of the relief he would be prepared to grant on the application of any one alleg- ing that the state of facts contemplated had arisen. The next year's praetor was free to adopt the edicts of his predecessor or not ; but it was usual for him to do so if they had been found beneficial in practice, he adding to them new provisions suggested by de- mands made upon past praetors for edicta repentina but which they had not generalized, or even proposing for acceptance some remedy entirely of his own devising. As each new praetor entered upon office he announced his jurisdictional programme, his lex annua, as it was called from this particular point of view, by far the greater part of it tralaticium, i.e., transmitted from his predecessors, and only a few paragraphs, diminishing in number as time pro- gressed, representing his own contribution. And so it went on in the first years of the empire, until the praetorian function was eclipsed by the imperial ; and at last, after having, by instruction of Hadrian, been subjected to revision, and consolidated with the edicts of the peregrin praetors and provincial governors, it was sanctioned as statute law for the empire through the medium of a senatusconsult. There is some reason for supposing that the edict attained con- siderable proportions in the time of Cicero ; for he mentions that, whereas in his youth the XII. Tables had been taught to the boys in school, in his later years these were neglected, and young men directed instead to the praetor's edicts for their first lessons in law. Of a few of them the date and authorship are known with tolerable precision ; but of the history of the majority, including some of the most important, such as those introducing restitutio in integrum on the ground of lesion through error, absence, minority, and the like, and those revolutionizing the law of succession, we are to a great extent in the dark. It is not necessary to assume either that the Julian consolidation exhibits all the provisions that from first to last appeared on the album, or that those preserved in it were originally in the shape in which they are there presented. It is much more likely that we have in it only those that had stood the test of generations, and that many of them are the result of the combined wisdom and experience of a series of praetors. It was one of the great advantages the edicts had over legislative enact- ments that they might be dropped, resumed, or amended by a new praetor according to his judgment of public requirements. For the edict was viva vox juris civilis, intended to aid, supplement, and correct it in accordance with the ever-changing estimate of public necessities ; and this would have been impossible had its provisions from the first been as stereotyped as they became by the consolida- tion in the time of Hadrian. The Edict seems to have contained two parts, the first what may be called the edict or edicts proper, and the second an appendix of styles of actions, &c., whether derived from the jus civile or from the jus praetorium. The contents of the edict proper were in de- tail very various, but all devoted to an exposition of the ways in which the praetor meant to exercise his jurisdiction during his year 1 See Lenel, Beitrage zur Kunde des praetorischen Edicts, Stuttgart, 1878, and the introductory chapters in his Das Edictum Perpetuum, Leipsic, 1883 ; Karlowa, Rom. Rechtsgesch., 60. Y"V as A A. oo