It was, therefore, not the jus civile of Rome, but the valid modifications of this expressed in what was currently known as magistrates' law (jus honorarium). The civil law was of course presumed as the background of these documents; it found expression in many formulae which the magistrates continued to give, and the album itself probably contained a line of separation which showed where the formulae based on jus civile ended and those founded on magisterial promises began. The most typical language of the jus honorarium is one of command veiled under the form of promises; the praetor asserts "under certain given circumstances I will grant or will not grant a case" (judicium, actionem dabo . . . non dabo). Less frequently the language is more imperative: "I will compel payment or an oath" (solvere aut jurare cogam); before the question of right is decided, "I forbid force to be used" (vim fieri veto).
A consideration of judge-made law, the consequence it may be of precedents drawn from already decided cases, and therefore merely the recognition of practice which had already crept into use,[1] but still expressed, as it is in this case, in a purely abstract form, suggests many questions. First, as to its validity. The edict was law that held good for a year (lex annua):[2] a limitation that would have produced a most unsatisfactory uncertainty as to its validity for future litigants and subsequent magistrates, had it not been for the facts that it was actually continuous, and that it was received, only to be slightly modified in accordance with legislative changes or with the demands of convenience, by successive wielders of civil jurisdiction. To use technical language, the edict was perpetuum et tralaticium.[3] Secondly, we must consider the limitation on the magistrate and the forces that bound him to observe his own promulgated law. At Rome the veto operated successfully for this purpose[4] even before the passing of the lex Cornelia of 67 B.C., which obliged a magistrate to adhere to the rulings of
- ↑ For the edict as the expression of customary law see Cic. de Invent. ii. 22, 67 "Consuetudine autem jus esse putatur id, quod voluntate omnium sine lege vetustas comprobarit. . . . Quo in genere et alia sunt multa et eorum multo maxima pars, quae praetores edicere consuerunt."
- ↑ Cic. in Verr. i. 42, 109 "qui plurimum tribuunt edicto, praetoris edictum legem annuam dicunt esse."
- ↑ Ascon. in Cornel. p. 58; Cic. in Verr. i. 44, 114. Perpetuum means "continuous," tralaticium "transmitted."
- ↑ Cic. in Verr. i. 46, 119. Cf. p. 178.
