OF THE ROMAN EMPIRE
449
and in questions of private jurisprudence the integrity of their judgment was seldom perverted by fear or interest.[1]
Edicts of the prætors The silence or ambiguity of the laws was supplied by the occasional edicts of those magistrates who were invested with the honours of the state.[2] This ancient prerogative of the Roman kings was transferred, in the respective offices, to the consuls and dictators, the censors and prætors; and a similar right was assumed by the tribunes of the people, the ædiles, and the proconsuls. At Rome and in the provinces, the duties of the subject and the intentions of the governor were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the prætor of the city. As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigour of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic; the art of respecting the name, and eluding the efficacy, of the laws was improved by successive prætors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs; and, where the end was salutary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent prætor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were substituted to the obsolete rigour of the Twelve Tables; time and space were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form of justice, were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or- ↑ Non ambigitur senatum jus facere posse, is the decision of Ulpian (l. xvi. ad Edict. in Pandect. l. i. tit. iii. leg. 9). Pomponius taxes the comitia of the people as a turba hominum (Pandect. l. i. tit. ii. leg. 9).
- ↑ The jus honorarium of the prætors and other magistrates is strictly defined in the Latin text of the Institutes (l. i. tit. ii. No. 7), and more loosely explained in the Greek paraphrase of Theophilus (p. 33-38, edit. Reitz), who drops the important word honorarium. [The prætorian ius as a source of equity is treated in a very interesting manner by Sir Henry Maine, Ancient Law, c. 3.]
