Page:Harvard Law Review Volume 32.djvu/403

MILITARY LAW — A STUDY IN COMPARATIVE LAW 367 ing offices to the plebeians. The praetor to whom the adminis- tration of justice was committed possessed therefore a portion of the imperium; limited, it is true, but pure and unalloyed as far as it went. By virtue of this imperium, on taking office he pub- lished an edict in which he set forth the actions which he would allow.^^ While each praetor probably had power to issue an edict 2' "The administration of justice was vested in Rome, during the earliest period, in the King, and later in the consuls. In the year 387 a. u. c. (367 b. c.) a praetor (prcetor urbanus) was created by the side of consuls; and jurisdiction in proceedings between Roman citizens (qui inter cives jus dicit) was assigned to him as a special jurisdiction. About the year 512 a. u. c. (242 b. c.) a second praetor, the so-caUed pmtor peregrinus, was created to whom proceedings between non-citizens (peregrini) as well as proceedings between citizens and non-citizens were assigned (qui inter pere- grines jus dicit, inter cives et peregrines jus dicit). In addition to the two praetors the aediles curules had a special jurisdiction in Rome in disputes of the market place (§ 87). In the provinces jurisdiction was in the hands of the prefects. "These judicial authorities, like the other magistrates of Rome, possessed the^MS edicendi, that is to say, the right to make binding enactments and to promulgate them. They did this by announcing, upon their entrance into their oflSce, for the guidance of the public who sought justice, the principles which they proposed to observe in ad- ministering justice during their year in ofl&ce. The most important of these edicts are those of the praetors. Our legal sources contained nothing but fragments of the edictum pratoris urbani, for which reason we restrict ourselves to these in our subse- quent discussion. "The beginnings of the edict go back to an early period of time, and it is as old as the office of the prator urbanus. By virtue of the imperium belonging to the praetor, he could from remotest times appoint a court in every case, which was not regulated by the statutes enacted by the people (outside the law), as it might be needed; and he could instruct the judex appointed by him by way of commands, under what pre- suppositions and for what he should condemn the defendants. The judex was bound by this instruction (formula), which was the emanation from the power of command, which was contained in the praetorian imperium; and he did not have to inquire whether it was based upon a statute enacted by the people or not. He had merely to carry out these instructions; and he had only to investigate to see whether the pre-suppositions, which were set forth in the instructions, had happened or not; and to render his de- cision in accordance with the result of this investigation. In this way it was made possible for the praetor to fill in the gaps in the law by the administration of his im- perium and to come half-way to give judicial validity to the claims, which arose out of the necessities of commerce and life, claims which according to the statutes enacted by the people, enjoyed no legal protection; and especially to grant new actions; to promise these in advance in his edict upon his entrance into office; and to establish in his edict formulce; which were appropriate thereto. Numerous rights of action owe their existence to this. Furthermore, by virtue of his imperium, the praetor also had power to deny judicial enforcement to such provisions of the statutes enacted by the people as had become obsolete, or to join them to further pre-suppositions established by him. Finally since the reform of procedure introduced by the lex Aebutia, he also had to draft formula of action suitable for the claims which were based upon the statutes enacted by the people; and to set them forth in the edict. For this reason