utilitatis gratia, would seem to favour the latter view; but the great jurists were not equally great ety- L. 5, § 9, D. mologists; and the former derivation seems (xiii. 5). the more probable.

(3) The Prætor restrained the use of the ordinary civil remedies in cases in which the moral claims or peculiar situation of particular classes of persons seemed to call for such special interference. It was thus that the Prætor forbade any one to sue, without his special permission, his ascendants or descendants, or L. 4, D. (ii. 4). his patron, and that he regulated the right of L. $7, 8, D. (iii. 1). representation in suing, and that he reserved L. 1, D. (iv. 4). to himself the right, on inquiry made, to cancel every legal act which a minor under twenty-five years of age had done to his own disadvantage.

But (4) the most important avenue of the Prætor's influence on the law was by the jurisdiction he gradually assumed and embodied in his Edict in respect of fraud. This constant reference to a capacity of moral discrimination inherent in the Prætor's office, coupled with a resolution to apply a purely moral test to all acts which admitted of it, is the most remarkable feature in the Edict, and that which imparted to it its most lasting weight. The notions of dolus, of culpa, of bona fides, and mala fides, which run through the whole Edict, presuppose not only that the Prætor is determined to submit to a rigorous test the mental conditions under which legal acts were performed, but that he actually has such a test, fitted with a finely graduated scale, ready to his hand, and is fully competent to apply it. Here was a principle wholly alien to the older civil law, in which intention and motive were persistently subordinated to precise compliance with rigid formalities.

This principle of moral inquisition was carried into effect in more ways than one. A large class of novel actions was allowed founded upon relationships rather of social confidence than of strict legal engagement. Such was the class of bona fidei actiones, including the special actions arising out of sale, hire, exchange, partnership, commission,

(xix.).

and other matters for which no action lay by the strict civil D. (xviii.), D. law (actio de præscriptis verbis). One peculiarity of these was, that the judge had a considerable latitude for discretion permitted him in appreciating all the circumstances and the special relations of the parties; another was that a penalty of "infamy" was attached to failure in making out a defence to the action. It need not be pointed out what vast changes in the substantive law this gradual usurpation of jurisdiction carried with it, nor what a delicate appreciation of mental and moral conditions the jurisdiction itself implied.

Another mode in which the Prætor, through his Edict, purported to exercise a faculty of moral inquisition, was, by according a right of defence, grounded on moral considerations, to those who would suffer practical injustice if the strict law took its normal course. The doctrine of "exceptions," by which a plea was allowed to be attached to the formula setting forth that, for reasons alleged, it would be inequitable to condemn the defendant,-supplied an astute instrument for meeting the devices not only of positive fraud but even of bad faith. "It often happens" (says Gaius) "that one is liable by the civil law, but it is inequitable (iniquum) that he should be condemned." It was by force of these "exceptions" that defences grounded on mistake, undue moral pressure, informal understandings, and the like, were entertained, whether as a temporary (dilatoria) or a permanent (peremptoria) bar to an action.

Gaius iv. 116.

It has already been noticed in what way the Prætor granted relief to large classes of persons peculiarly exposed to the solicitations of fraud. Such were minors, that is, persons above the age of puberty, but yet unexperienced in the world's ways; creditors, and absent persons, and the relations of a deceased who had been either overlooked or insufficiently provided for by a will. By one or other of his acts of extraordinary jurisdiction in some classes of cases he simply nullified acts which were good by the civil law; in other classes he absolutely transferred the possession of property from one person to another, and laid the ground

for the ripening of the new possession into ownership. In this way he overrode the most inveterate doctrines of the older civil law. It is thus seen how correct was the description of the "prætorian law" as given by L. 7, D. (i. 1) Papinian, "which" (said he), "the Prætors introduced for the public good in order to aid, to supplement, or to correct the civil law."

If it might have been apprehended that this enormous legislative power, which was inherent in the Prætor's office, would introduce an uncertainty and vacillation into the law which no actual improvements could compensate, it is to be remembered that the institution contained within itself its own checks and safety-valves. One of these checks is exhibited in an expedient devised by the L. 1, D. (ii. 2). Prætors themselves and embodied in the Edict, to the effect that if any magistrate, in discharging the functions of his office, laid down any principle, the same principle must be held valid in the case of an action being brought against the magistrate himself.

Hein. Hist.

Lib. I, cap.

It is further to be noticed that the mere extent of the Edict rendered it obviously convenient for a magistrate coming fresh to his work to adopt it largely rather than to innovate; and that the shortness of the term of office of each particular Prætor gave a very faint chance of lasting validity to any change which had nothing else to recommend it than the Prætor's caprice. Then, again, the publicity of the Edict, which seems to have been publicly exposed to view on a white Edictorum, tablet in the Forum, and which the suitors vi., § 17. inspected in person to ascertain the form L. 1, § 1, D. of action or defence which was available for (ii. 13). them, was wholly in favour of regularity and uniformity. Sudden changes must invite comment, and would probably occasion inconvenience. Hence a reason capable of being understood by all must be ready at hand. Then, again, the Prætor was not a jurisconsult by profession, though in particular cases, as in that of Salvius Julianus, he might chance to be one. He thus came to his office ready rather to learn than to teach, and eager rather to execute

vigorously the laws as they were than to devise changes in them. The very novelty of the ground on which he was treading would make him disposed rather to err on the side of caution than of precipitancy. It is, indeed, probable that the actual modifications incorporated from time to time into the Edict had been gradually adopted in practice in order to remedy special cases of injustice before they were elevated into rules of law for the year of their formal publication. It thus appears rather surprising, considering the severely conservative habits of Roman lawyers and statesmen, not that the Prætors innovated so little, but that they innovated so much.

The gradual absorption of all legislative power, whether statutory or judicial, by the emperors, naturally led to the suppression of the functions of the Prætor Urbanus as a source of legislation; while the reconstruction of the provincial administration, and the increasing separation between the eastern and western provinces of the empire, which was taking place between the middle of the second and the end of the third century, all tended to divest the Perpetual Edict of its importance as a universal code. It was, no doubt, for a long time one of the leading written authorities of the law, and as such was constantly commented upon and reverently handled as a starting-point in statutory legislation. But the comments of authoritative jurists were of an importance equal at least to that of the text; and a rescript of the emperor could any day suspend or modify (though, apparently, not openly abrogate) its most familiar clauses. The Prætor became, at the same time, divorced from his Edict and degraded into an ordinary magistrate hemmed in on every side by the written letter of the law. The office itself was in existence certainly up to the time of Constantine, but the Prefect of the city was treated as a higher judicial officer. The degradation of the functions of the Prætor marked another significant change, the gradual abolition of the Formulary system. This was apparently brought about by two distinct causes, one, the superior convenience of requiring the magistrate (no longer the

L. 17, C. (vii. 62). L. 18, C. (v. 71).

dignified official of the republic), who presided over the proceedings, to take cognizance of them from first to last, without referring the case to another tribune; the other, the pettifogging distinctions which the abuse of the Formulary system had brought in its train, to the subversion of practical justice. The constitution of Diocletian (A.D. 294) abolishing the practice of referring matters to L. 2, C. (iii. 3). subordinate judges, except in the case of the urgent preoccupation of the superior judge, seems to point to the first of these causes. The constitution of Constantius (A.D. 343), for the suppression of the formulæ, as "laying snares for the acts of every one," seems to point to the second of these causes.

C. (ii. 58).

§ 2. From the Suppression of the Formulary System by Diocletian (A.D. 294), to the Death of Justinian.

The subject of this section is more conveniently treated in the chapter on Procedure. It is pointed out there that there is so unbroken a continuity between the earlier and the latest Roman procedure, that this subject must needs. be treated after a more strictly historical method even than other parts of the law. It becomes then necessary, in order to introduce the system of procedure as it stood under Justinian's latest development, to revert in some detail to the whole course of Roman procedure from the first. This again necessitates repetition, but it will be avoided to some extent by deferring the completion of the history of judicial legislation between the time of Diocletian and that of Justinian to a later chapter, and there treating it once for all,