Chapter 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.

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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_.

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Our data are too scanty to permit us to trace either the first beginnings of the Praetor’s action, or the details of its working, or the changes which must unquestionably have passed upon it during the three centuries and a half when its importance stood highest, say from the end of the First Punic War to the time of the Emperor Hadrian (B.C. 241 to 117 A.D.). Even of the Edict itself, in its latest and most complete form, we have only fragments, and do not know by what stages it was brought to the perfection which led to its being finally settled in a form never thenceforward altered. This took place under Hadrian, when Salvius Julianus, a famous jurist who was Praetor at the time, gave it the shape in which it became permanent, an _Edictum Perpetuum_ in a new sense; it was then enacted by a _Senatus Consultum_, and in the form so enacted it was thereafter quoted and applied. Apparently, however, the effect of its enactment was not to make it a part of the general statutory law, but only to determine the form in which it was thereafter put forth by the magistrates. After that time such Edicts as were issued were special, containing declarations of the imperial will, usually addressed to particular circumstances. They were no longer Edicts in the old sense, but mere imperial constitutions.

It need hardly be said that under the Empire the action of the Praetor, like that of all other magistrates, had been liable to be directed or supervised by the Sovereign or his legal advisers. An interesting illustration of that supervision is worth mentioning, because it also brings into relief the fact that other magistrates, as well as the Praetor and Aediles, enjoyed the power of creating law by their action, which may be called either administrative or judicial, seeing that it united the two characters. Before the time of Augustus there had been no such thing among the Romans as the giving of an inheritance, or a legacy, by means of a Trust, _i.e._ by imposing on the honour and good faith of the person to whom property was left a legal obligation to hand it, or a part of it, over to some one else as the real beneficiary. The practice of asking such a person to carry out the testator’s wish had existed, but he could disregard the wish if he pleased. Augustus, however, on two occasions directed the Consuls (not the Praetor) to enforce such a request by their authority, thereby turning the moral into a legal obligation; and at the same time recognized an informal letter or writing (_codicilli_) as sufficient, where confirmed by a will, to impose a binding obligation on the heir. We are told that, in the latter case, having himself on one occasion performed what a testator had asked him, by way of trust, to do, he summoned a meeting of eminent jurists to advise him, and accepted the advice of Trebatius that the obligation should be held valid. These instances became the foundation of the extremely important changes which made the validity of Trusts, and that of _codicilli_, thenceforward a well-established legal doctrine[120]. As the origin of Roman trust inheritances is due to the action of the magistrates, so English trusts owe their legal force to the Chancellor; and through the operation of the practice of creating them, coupled with the Statute of Uses (27 Henry VIII, c. 10), there grew up the modern system of conveyancing.

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Footnote 120:

‘Primus divus Augustus semel iterumque gratia personarum motus, vel
quia per ipsius salutem rogatus quis diceretur aut ob insignem
quorundam perfidiam, iussit consulibus auctoritatem suam interponere,
quod quia iustum videbatur et populare erat, paulatim conversum est in
adsiduam iurisdictionem’ (_Inst._ ii. 23. 1). See also _Inst._ ii. 25.

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The merits of our English Case Law system are very great. It is an abiding honour to our lawyers and judges to have worked it out with a completeness and success unknown to any other country. They have accumulated in the Reports an unequalled treasure of instances, conjunctions of circumstances raising points of law far more numerous than the most active intellects could have imagined. These points have been argued with the keenness which personal interest supplies, and decided under that sense of responsibility which the Judge feels when he knows not only that his judgement is to determine the pecuniary claims or social position of suitors, but also that it is to constitute a rule which will be canvassed by the bench and the bar, and find its place in volumes that will be studied long after he has quitted this mortal scene. There is therefore a practicality about English Case Law, a firm grasp of facts and reality, as well as a richness and variety, which cannot be looked for in legal treatises composed even by the ablest and most conscientious private persons, who, writing in their studies, have not been enlightened by forensic discussion nor felt themselves surrounded by the halo of official dignity. If the treatises of the great Roman jurists do to a large extent possess these same merits, it is because they too were, in a measure, public officers, and because much of the law they contain arose out of concrete cases[121].

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Footnote 121:

Not that all the cases we find in the _Digest_ are concrete cases, for
a good many seem to have been imagined for the sake of illustrating
the applications of a principle. Cf. the illustrations in Macaulay’s
Indian Penal Code.

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The characteristic defects of Case Law which must be set against these merits are two. There is, first of all, its frequent uncertainty. As has been remarked already, one must always assume a certain percentage of ill-decided cases which it is hard to get rid of. And it may often happen that a particular point, which specially needs to be determined in the interests of legal science, remains for years, or even centuries, unsettled, because it is never brought before the Courts in a neat form which raises just the issue that wants settling. Sometimes it hardly matters which way the decision goes: the important thing is to have a decision, yet there is no means provided of getting one, unless by invoking the legislature, which is usually too much occupied with political controversies or administrative problems to care for settling such a point. And secondly there is the utterly unsystematic character from which Case Law necessarily suffers, and which it necessarily imparts to the whole law of the country. This defect is too familiar from everyday experience to need any illustration. It is the capital defect, one might say almost the only defect, of the law of England; and people have so long talked in vain about remedying it by means of a Code, that they have at last grown tired of the subject, and seem to be settling down into despair. I refer to it for the sake of pointing out how the institution of the Roman Praetor met a similar danger. The Romans had, to be sure, no great turn for scientific arrangement—their efforts at codification and the structure of their legal treatises show that—but the Praetor’s Edict had the immense advantage of presenting all the gist and pith of the newer law in a compact form, clearly and concisely set forth. The Edict thus became a centre round which the jurists could work, a point of departure for all further legislation, a main line of road running through the network of lanes, courts, and alleys that had been built up by a multitude of statutes and treatises. It was capable of being constantly amended and extended so as to take in all changes in the law, while yet retaining its own character; and it gave a unity, a cohesion, a philosophical self-consistency to the Roman law which it must otherwise have wanted even more than does our own. A German writer has somewhere remarked, in commenting on the crude and fragmentary character of the Roman Criminal Law, with whose development the Praetor had comparatively little to do, that the faults of that branch of legal science show how absurd it is to ascribe the merits of Roman jurisprudence to any special gift for legislation bestowed by Heaven on the Roman people. The excellence of their private civil law is (he observes) due simply to the fact that they had the good sense, or perhaps the good luck, to have provided in the Praetorship an office specially charged with the duty of constantly amending the law so as to bring it in accord with the growing civilization and enlarging ideas of the people. There is much truth in this. The Romans, however, did not invent their Praetor with any such conscious purpose. Their merit was that, when they saw him occupied in developing the law, they gave him free scope, and supported him in his beneficent work. He is a unique figure among the law-making organs of the nations. Since he is the choice of the people, he is able to do things which the minister of an absolute monarch might prudently shrink from doing; and the people permit him to retain his functions, even in days when the habit of directly legislating had so much increased that it might have been supposed that legislation would restrict or supersede his action. No modern republic would vest such power in an official, nor would any modern monarch be permitted by public opinion so to vest it.

Nevertheless, though he belongs to a world which cannot return, the Praetor’s career may suggest to us that every civilized nation ought, in some way or other, to provide an organ representing its legal intelligence which shall mould and supervise the gradual and symmetrical development of its law. It may be suggested that all modern States do provide such an organ in their legislatures, whose business is largely, in some instances almost entirely, that of making law, and which presumably contain the most capable men whom the nation possesses. When we have considered the conditions under which legislatures work, as I propose now to do, we shall be better able to judge how far they fulfil the function which the Praetor discharged at Rome.