property of their own. With increasing luxury and licentiousness divorce became common.[1]
This looseness of the marriage bond, as was naturally to be expected, had its effect on the other family relations. The right of children to take their father's inheritance began to be lightly esteemed. The law—or rather the interpretation 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 later 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 were disinherited or cut off with a nominal share of the inheritance in order that a stranger might be enriched. This led to the recognition by the centumviral court, without apparently any legislative enactment or praetor's edict to warrant it, of what was called the querela inofficiosi testamenti—challenge of a testament by a child whose natural claims had been capriciously and causelessly disregarded. While the practice may for a time have been hesitating and uncertain, yet early in the empire, through means of this querela, the rule came to be established that every child was entitled, notwithstanding the terms of his father's testament, to at least a fourth (portio legitima, quarta legitima)[2] 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 challenge an undutiful testament made by his child to his prejudice; and ultimately 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 πίστις τῶν Ῥωμαίων. Men no longer relied on each other's good faith unless backed by stipulations, securities (cautiones) and guarantees. The Rutilian bankruptcy arrangements and the actio Pauliana for setting aside alienation's in fraud of creditors indicate a laxity in mercantile 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 Graeca fides 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 two centuries and a half embraced within the present epoch the Legislation. private law owed much to legislation. The vast majority of the enactments of the time referred to by 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 mentioned by Gaius 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.[3]—The practice of propounding edicts was very ancient, and had been followed by kings and consuls long Magistrates' edicts. before the institution of the praetorship. It was one of the most 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 repentina 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 perpetua (or perpetuae jurisdictionis causa proposita)—announcements by the praetor, published on his album (as the white boards displayed for the purpose in the forum were called), of the remedy he would be prepared to grant on the application of any one alleging 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 demands 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 progressed, 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 along with the Aedilian Edicts, by Salvius Julianus, it was, as will be noticed below, sanctioned as binding on the whole Empire. The term “Edict” is applied both to the single edicts and also to the whole body of them together.
There is some reason for supposing that the edict attained considerable 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 was one of the great advantages the edicts had over legislative enactments 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 consolidation in the time of Hadrian.
The edict seems to have contained two parts—the first what may be called the edicts proper, and the second styles of actions, &c., whether derived from the jus civile or from the jus praetorium. The styles or formulae for civil actions were published without any corresponding edict; for praetorian actions styles were published appropriate to their corresponding edicts. There were also independent formulae for interdicts, processual stipulations, &c. The contents of the edicts proper were in detail very various, but all devoted to an exposition of the ways in which the praetor meant to exercise his jurisdiction during his year of office. They were not didactic or dogmatic formulations of law, but rather announcements of what remedy he would grant in such and such circumstances, or direct orders to do or prohibitions against doing certain things. A party claiming an action or whatever else it might be under any of them did so not of right, as he would have done had his claim had a statutory or customary foundation, but of grace—on the strength of the praetor's promise to grant him what he claimed and make the grant effectual. That was why originally such an action had to be raised and concluded within the particular praetor's year of office—a rule which in time, by abuse, was converted into the somewhat different one that a purely praetorian action (i.e. not originally of the jus civile) had to be raised within a year of the occurrence to which it referred.
As already observed, the praetor's edicts proceeded upon lines of equity; that is to say, they were directed against the strictness and formalism of the jurisprudence of the XII. Tables. Such may be said to have been the general tendency of the edicts as a whole.
- ↑ Voigt, Die Lex Maenia de dote (Weimar, 1866), attributes to a lex Maenia of 168 B.C. the creation of the judicium de moribus which superseded the family council as a divorce court by providing a penal action on divorce. The existence, however, of a statute for this purpose has not been proved, and is discredited by most recent writers. See Czylharz, Das römische Dotalrecht (Giessen, 1870).
- ↑ From this the legitim of children recognized by most continental countries nowadays is derived.
- ↑ See Lenel, Beiträge zur Kunde des praetorischen Edicts (Stuttgart, 1878), and the introductory chapters in his Edictum Perpetuum (Leipzig, 2nd ed., 1907); Karlowa, Röm. Rechtsgesch. vol. 1. § 60; Voigt, Röm. Rechtsgesch. §§ 19, 20.
