justice belonged to the chief magistrate of the State and to the
assembly of the people, who in the very earliest days had normally acted
together. In England, although the judicial functions of the Assembly
survived for some purposes (as they survive to-day in Parliament), the
conduct of ordinary judicial work which could not conveniently be
exercised by the Assembly passed to the king, and when judges appeared,
they were his officers. In Rome also the king was the head of the
judicial system: and when the kingly office was abolished, the functions
that had been his were transferred to the two Consuls, who were
virtually annual kings. After a time, owing to political disputes which
need not be described here, a third annual magistrate was added, called
the Praetor[115], who, while capable of exerting nearly all the
executive power of the Consuls, received the administration of justice
as his special province. As the city grew and litigation increased, more
Praetors were added. The first had been appointed in B.C. 367; the
second, who presently became charged with suits in which one or both of
the parties did not enjoy Roman citizenship, dates from about B.C. 247.
He came to be called _Praetor peregrinus_, while the original Praetor
was described as the Praetor of the City (_urbanus_). The latter
remained the head of the judicial system, and I shall therefore speak of
the Praetor in the singular. Other Praetors were added, partly in order
to act in the provinces, partly in order to undertake special kinds of
jurisdiction. By the time of Trajan there were eighteen of them.
-----
Footnote 115:
The name Praetor meant Leader, and was originally applied to the
Consuls. The Praetor’s competence for military functions was equal to
that of the Consuls. He had both _imperium_ and _iurisdictio_.
-----
In the later republican period we may speak of the Praetor as being
partly a Judge, partly a Minister of Justice who directed the general
working of the Courts. It was his duty to issue when he assumed office a
statement of the rules by which he intended to guide his judicial action
during his year, as well as a table of the formulae in which
applications ought to be made to him for the exercise of his functions.
These rules were published in a document called the Edict. It contained
a concise statement of the cases in which he would allow an action to be
brought, and of the pleas which he would admit as constituting defences
to actions. This statement did not purport to supersede the old actions
and rules which had either come down as a settled part of the ancient
customary law, or had been enacted by any statute of the popular
assembly. The Praetor always held himself to be bound by statutes[116].
But his Edict added materially to the old actions and rules,
incidentally modified them, ultimately did supersede many of them. He
awarded remedies which the older law had not awarded. He recognized
defences (_e.g._ in cases of fraud) which the old law had not
recognized. He provided means of enforcing rights more effective than
those which the old law had provided. As the later Romans said, he acted
for the sake of aiding, or supplying the omissions of, or correcting,
the old strict law, with a view to the public advantage[117].
-----
Footnote 116:
The Praetor, said the Romans, does not make law (_Praetor ius facere
non potest_). Yet they also called the rules which emanated from him
_iura_ (see Cic. _De Invent._ ii. 22): and the whole body of rules due
to his action was in later times described as _ius honorarium_, _ius
praetorium_. Sometimes a right resting on _ius_ is contrasted with one
depending on the protection (_tuitio_) of the Praetor: Ulpian in
_Dig._ vii. 4. 1. Those who put the Praetor’s authority highest called
the Edict _lex annua_, says Cicero, _Verr._ ii. 1. 42. This
uncertainty of language corresponds to the peculiar character of these
rules, which in one sense were, and in another were not, Law.
Footnote 117:
‘Ius praetorium est quod praetores introduxerunt adiuvandi vel
supplendi vel corrigendi iuris civilis gratia propter utilitatem
publicam.’ Papinian in _Dig._ i. 1. 7.
-----
Each Edict was valid only for the Praetor’s year of office. Each
succeeding Praetor, however, usually repeated nearly all the
declarations that had been contained in the Edicts of his predecessors,
though it often happened that a new Edict introduced some improvement in
point of form and expression, or perhaps so varied, or added to, the
announcements in the last preceding Edict as to introduce an improvement
in substance, for when a Praetor thought that it was necessary to
promise a new remedy by action, or to recognize a new plea, it was his
duty to insert it. In this way the practice of the Courts was
continually changing, yet each single change was so slight that the
process was very gradual, hardly more rapid than that which has gone on,
at certain periods in the history of English law, through the action of
the Court of Chancery, or that which went on in the Court of King’s
Bench under Lord Mansfield. There was no permanent enactment of a new
rule, for a Praetor’s declarations bound himself only and not his
successors[118]. But as his promises were usually repeated by his
successors, a Praetor when he promised a new remedy, practically created
a new right, or enlarged and confirmed an old one.
-----
Footnote 118:
His declarations did not originally, in strictness of law, bind even
himself, and it was found necessary to enact, by a _lex Cornelia_ of
B.C. 67, that the Praetor should not depart from the statements of his
Edict (‘ut praetores ex edictis suis perpetuis ius dicerent, quae res
cunctam gratiam ambitiosis praetoribus qui varie ius dicere solebant,
sustulit.’ Ascon. _in Cic. Pro Cornelio_, 58.)
The Edict regularly issued at the beginning of each year was called
_Edictum perpetuum_, as opposed to _Edictum repentinum_, one issued
for an emergency.
To us moderns the function thus committed to a Magistrate seems a large
function, and his power a possibly dangerous power. No modern
constitutional State would vest such a power either in a Judge or in a
Minister of Justice. But to the Romans the Praetor is (above all things)
the representative of the Executive and Judicial Power of the State. He
is the State embodied for certain purposes. He is something more than a
mere minister, whom the people have chosen to serve them in a certain
capacity. He represents the majesty of the State over against the
people, and deals with them rather as a Ruler than as a Servant. Few
nations have formed so strong and definite a conception of State power
as the Romans did; and none, perhaps, expressed it so distinctly in the
authority, very wide, very drastic, and yet eminently constitutional,
which they entrusted to their great State officials. The conception was
to them so dear, or so necessary, that even when the misdeeds of a
monarch had led to the abolition of monarchy, they did not restrict the
magisterial power itself, but divided it between two co-ordinate
magistrates whose co-existence made each a check on the other; and when
the powers of these two (the Consuls) were subsequently found to need
limitation, they devolved upon other magistrates (the Tribunes) the
right to step in and check the exertion in some particular instance of
the consular power.
The Praetor, therefore, having (like the Consul) _imperium_ (_i.e._ the
power of issuing commands as an executive officer, and of compelling
obedience to them by putting forth material force), is a stronger
personality than the English Common Law Judge, and can act more boldly
and more effectively. We hear of no demand for a restriction of his
functions, but only of a statute which checked arbitrary discretion by
requiring him to administer the law in accordance with his Edict.
Moreover, while the English judge is, down till the Revolution, an
official removable by the Crown, the Praetor has no one over him, and
has, therefore, not only a more unfettered discretion in carrying out
his judicial and quasi-legislative mission, but also a clearer sense of
his duty to do so, because this is the function which the nation expects
him to discharge. The English Judge is primarily a judge, appointed to
pronounce a decision: the Praetor is also an executive magistrate,
placed at the head of the whole judicial administration of what was
originally a small community, with the duty of providing that the system
works properly. His wider powers give him a sense of the obligation laid
on him to see that justice is duly done, that the system of procedure is
such as to enable justice to be done, that wrongs for which there ought
to be some remedy have some remedy provided against them; in short, that
the law as a machinery for setting things right and satisfying the
demands of the citizens is kept in proper order, with such improvements
and extensions as the changing needs of the nation suggest. His business
is not merely to declare the law but to keep the law and its machinery
abreast of the time.
The functionary who in England offers the nearest analogy to the
Praetor, an analogy which has been so often remarked that only a few
words need be spent on it, is the Chancellor. The Chancellor of the
fourteenth, fifteenth, and sixteenth centuries was the organ of the
prerogative of the Crown on its judicial side, and as that prerogative
was then very wide, he was thus invested with an authority half
judicial, half administrative, not unlike that of the Roman magistrate.
As it belonged to the Crown to see that justice was done throughout the
realm, and the means for doing it provided, the Chancellor was expected
and obliged to supply new machinery if the old proved inadequate, and
this he did in virtue of an authority which, in its undefined width and
its compulsive power, resembled the Roman _imperium_. Accordingly when
the development of the Common Law Courts stopped in the fourteenth
century because the Common Law judges refused to go beyond the remedies
which the Courts provided, and made only a limited and timid use even of
their power of issuing new writs _in consimili casu_, the Chancellor
went on. From the time of Edward the Third petitions to see right done,
which had been previously addressed to the Crown, began to be addressed
to the Chancellor, and the extraordinary range of his powers was
expressed by the phrase that he acted in matters of the King’s grace and
favour, that is to say, he acted where the subject could not demand a
remedy as of common right from the ordinary Courts of the land.
Thenceforward the range of action of the Common Law Courts did not so
much need to be extended, though a certain slight measure of development
continued in them even as late as the days of Lord Mansfield, whose
extension of the scope of the ‘Common Counts for money had and received
to the use of the plaintiff’ has a faint flavour of praetorian methods.
It was partly because the Common Law judges had halted that the
Chancellor, if I may use a familiar expression, took up the running, and
exerted the powers which the sovereign entrusted to him, and which, as
keeper of the sovereign’s conscience, he was held to be justified in
exerting so as to provide fresh and efficient remedies for wrongs that
defied either the rigid system of procedure or the feeble executive
capacity of the Common Law Courts. During this period the Chancellor,
though a judge, is also much more than a judge, and it is as a great
executive officer, clothed with the reserved and elastic powers of the
sovereign, that he is able to accomplish so much. Yet his action is not
so free as was the Praetor’s, for he does not directly interfere with
the pre-existing Courts. He may walk round them: he may forbid a
plaintiff to use the judgements they give; but he cannot remould their
methods nor extend their remedies. The Praetor, on the other hand, is in
a certain sense the head of all Courts, so that his action covers the
whole field of law. After a time, however, the creative energy of the
Chancellor slackens, partly because the prerogative of the Crown was
being narrowed, partly, apparently, from the example of the other
Courts, for when Chancery decisions also began to be reported like those
of other tribunals, he naturally felt himself more and more fettered by
the record of the decisions of his predecessors. In the eighteenth
century, precedents gather round the Chancellor and fence him in: he
cannot break through so as to move freely forward on new lines of
reform. He is like a stream which, as it deepens its channel, ceases to
overflow its banks.
Before I note a further point of difference between the Praetor and our
English Judiciary, and a further reason why the development of the law
by the latter was so much less bold, I must advert to one feature which
the Roman and English systems have in common. In both law is made
through the control of procedure. The Praetor promises to give a certain
action, or allow a certain defence, in certain states of fact; _i.e._ if
a plaintiff alleges certain facts, the Praetor will allow him to sue,
and will see that judgement is given in his favour should those facts be
proved, while if a defendant alleges certain facts, the Praetor will
allow these to be set forth in a plea, and will see that judgement is
given in his favour if the facts as stated in the plea are proved.
Similarly the English Courts are concerned not with abstract
propositions of law, but with remedies. It is by granting a remedy,
_i.e._ by entering judgement for the plaintiff or the defendant in
pursuance of certain reasons which they deliver publicly, that the
Courts become sources of law. And though the Chancellor goes further
than the Common Law Courts, because in the early days of his action he
laid hold of a person under circumstances to which no rule of law had
been previously declared to apply, and compelled him to appear as
defendant in a suit, yet the Chancellor also never delivers a legal
opinion except for the purpose of explaining the decree which he issues
for adjusting the rights of the parties to a concrete dispute. So far,
therefore, the Roman and the English officials moved on similar lines.
Both were concerned with remedies; both acted through their control of
procedure.
V. THE SYSTEM OF PRAETORIAN EDICTS AS COMPARED WITH ENGLISH CASE LAW.
Now, however, we arrive at a material difference between the Roman and
the English Magistrates. The English judge never goes beyond the
concrete case which is before him. If he declares the law, he declares
it by deciding on the particular question which has arisen between two
individuals. He may incidentally, if so minded, deliver a lecture on the
law bearing on the subject, and may pass in review all the cases cited
in argument. Still, his judgement is not intended to go beyond what is
absolutely necessary for the settlement of that question, and his view
of the law is not authoritative so far as it strays into cognate but
distinct topics. It is only the _ratio decidendi_ that can be quoted as
an authority. No _dictum_ thrown out incidentally is of binding force;
and those who in the future have to deal with his decision are often
able to narrow down the _ratio decidendi_ to a very fine point, and show
that it turned so much on the special facts of the case as to be of
little importance as a precedent. But the Praetor speaks generally. In
the Edict which he issues at the beginning of his term of office he lays
down a rule, intended from the first to be applicable to a large class
of cases; or, to speak more exactly, he makes a promise and announces an
intention of dealing with a large class of instances. If the class were
not a large one, he would not think it worth while to announce such an
intention. He is thus led to take much more bold and conspicuous steps,
and he may effect at one stroke a larger reform than any single decision
of an English Court can ever cause. He is far more distinctly aware of
the fact that he is, though not formally legislating, yet taking action
which may have the effect of changing the substance of the law.
In other respects also, the fact that the Praetor’s changes are formally
enounced in his Edict potently and beneficially influenced his reforming
action. He was obliged to generalize and summarize. Where he had to set
aside an ancient rule which had begun to be mischievous and deserved to
be obsolete, instead of merely nibbling away at the edges of it as our
English judges were apt to do, he dealt with it in a broad and
intelligible way, either superseding it altogether or laying down
certain marked exceptions in which he declined to follow it. When he was
establishing a new rule he had to consider how wide a field he desired
to cover, what sets of instances were to be provided for, what was the
common principle underlying those instances, how that principle must be
expressed so as fairly to include them without including others which he
had no wish to touch. The chief merit of a rule of law is that it should
seize a feature which a large set of instances really have in common,
and should effectually provide for them and for them only. The Praetor
was moreover at the same time driven to be terse in the formulation of
his promises, because the Edict was by tradition a comparatively short
document, observing that stern brevity which the famous example of the
Twelve Tables had made familiar and excellent in Roman eyes. Thus the
results of his reforming action, the advance made at each step in the
development of the law, were always presented in a clear, a
comprehensive, and above all a concise form, so that the profession
perceived exactly what had been done, were able to take the Edict as a
subject for commentary and elucidation, and as a starting-point for
further improvements. It was thus that the jurists treated it, seconding
while also controlling by their opinion the action of the chief
magistrate. He draws with a bold yet careful hand the outlines of the
picture. They fill in the details, and so work round and over each of
his summary statements as to bring out more fully all that it contained
and involved, to trace his principles into their consequences and to
illustrate their application. The action of the jurists was as essential
to him as he was to them, for while their advice often prompted him, and
while their elucidations and teachings developed the meaning and
contents of what he laid down, their criticism reprobated any hasty or
inconsequent steps into which zeal or self-confidence might betray him.
Nor did such criticism remain fruitless. For it will be remembered as
another feature of the Roman edict-issuing system, and indeed one of its
most singular features, that each Edict was issued by each magistrate
for his one year of office only, and had no validity thereafter. This
was so because he was not conceived to act as legislator, but only as an
administrator whose commands, though they are not law in the strict
sense, must be obeyed while his power lasts. At the end of the year they
cease with that power, but his incoming successor may of course repeat
them and give them another year of life, and so on from year to year and
from generation to generation.
Thus the Edict, so far as it can be called legislation, is tentative
legislation. It is an experiment continually repeated; an experiment
whose failure is a slight evil, but its success a permanent gain.
Suppose the Praetor Sempronius to have introduced a new sentence into
his Edict, promising to give an action in a particular set of cases. The
profession doubt the merit of the sentence, canvass it, observe how it
works, and before the end of the year come to one of three conclusions.
They may approve it, in which case it will doubtless be repeated in next
year’s Edict. They may think it fundamentally wrong. Or thirdly, they
may hold that though its object was good, that object has been sought in
a wrong way. See then what happens if it has been disapproved. Next year
a new Praetor—Cornelius—comes into office. In issuing his Edict he
either omits altogether the obnoxious addition which Sempronius had
made, or he so modifies it as to meet the objection which the jurists
have taken. There is here none of the trouble, difficulty, and delay
which arise when a statute has to be passed repealing another statute.
There are not even those difficulties which occur under our English
system when a case wrongly decided has to be overruled.
Observe how that English system works. A decision is given, perhaps
hastily, or by a weak Court, which in a little while, especially after
other similar cases have arisen, is felt by the bar and the bench to be
unsound. There is a general wish to get rid of it, but it is hard to do
so. People have begun to act on the strength of it; it has found its way
into the text-books; inferior or possibly even co-ordinate courts have
followed it; conveyances or agreements have been drawn on the assumption
that it is good law. The longer it stands the greater its weight
becomes, yet the plainer may its unsoundness be. Cautious practitioners
fear to rely on it, because they think it may some day be overruled, yet
as they cannot tell when or whether that will happen, they dare not
disregard it. Thus the law becomes uncertain, and not only uncertain,
but also needlessly complex and involved, for later judges, feeling the
unsoundness of the principle which this mischievous case has
established, endeavour to narrow it down as far as possible, and
surround it by a set of limitations and exceptions which confuse the
subject and perplex the student. The matter may have one of three
ultimate issues. Either lapse of time and the unwilling acquiescence of
subsequent judges put its authority beyond dispute, as Mr. J. W. Smith
says of a famous old instance, ‘The profession have always wondered at
Dumpor’s case, but it is now too firmly settled to be questioned in a
Court.’ Or else, after a while, the point is carried to a Court of
higher rank which has the courage to overrule the erroneous decision,
and resettle the law on a better basis. Or possibly—though this but
rarely occurs—a statute is passed declaring the law in an opposite sense
to that of the unlucky decision. But it may be long before the second
solution is found, partly because judges are chary of disturbing what
they find, holding that it is better that the law should be certain than
that it should be rational, and fearing to pull up some of the wheat of
good cases with the tares of a bad case, partly because it may be a good
while before a litigant appears willing to incur the expense of carrying
the point to the higher and more costly tribunal. The third solution can
be even less relied upon, for the legislature is busy and cares very
little about the theoretical perfection of the law.
Even when the bad decision has been got rid of, a certain measure of
harm is found to have been done. The authority of other cognate
decisions may be impaired; transactions entered into, or titles
accepted, on the faith of the case are shaken. One way or the other the
law is injured. But on the Roman system these evils were, not indeed
wholly, yet to a much greater extent avoided[119]. Not only is the error
of one Praetor easily corrected by his successor, but the occasion
recurs year by year on which it must be either corrected or reaffirmed,
so that a blemish is much less likely to be suffered to remain. If five
or six successive Praetors have each of them in their Edicts repeated
the provision introduced by one of their predecessors, men may
confidently assume that it will be supported and perpetuated by those
who come after, either in its original form or possibly in a more
general form which will include its substance. There is no doubt some
little temporary uncertainty during the first year or two, before the
opinion of the profession has been unequivocally expressed. Such
uncertainty can hardly be avoided in any system. But the fact that the
Edict is annual gives ample notice that the provision is temporary and
experimental, though, of course, fully valid during the particular year
for which the Edict is issued. Thus the risk of mischief is reduced to a
minimum.
-----
Footnote 119:
A particular case decided in a particular way under a provision of the
Edict which was omitted next year would of course not be disturbed,
for the Romans held firmly to the principle _stare iudicatis_.
-----