The text of the code has not survived, a remarkable fact, for copies (probably in more or less modernized language) must have been abundant in Cicero's time if, as he says (De Leg. 2, 23, 59) it was still customary in his youth for boys to learn it by heart. All that we have is a number of "fragments" which have had to be collected from allusions and quotations in the works of various authors, e.g., Cicero. (Modern collections are to be found in Bruns' Fontes inris Romani antiqui, 7th ed., 1919, Girard's Textes de droit Romain, 5th ed., Paris, 1923, and Riccobono's Fontes iuris Romani anteiustiniani.) On the establishment of the empire by Augustus, the assemblies did not immediately cease to function, but their assent to any proposal was a mere formal ratification of the emperor's wishes. The last lex known to have been passed was a lex agraria under Nervy (A.D. 96-98).
Senates Consulta.—The senate acquired legislative power in early imperial times though this was never conferred on it by any imperial enactment. The resolution of the senate preceding the placing of a bill before the people had always been practically decisive, and with the decay of the comitia their assent evidently came to be regarded as a formality which might be omitted. Actually, the senate nearly always, if not always, legislated at the instigation of the emperor, latterly, indeed, simply embody ing his oratio or proposal in a resolution, and not long after the classical period, the emperors ceased to use the senate as a ve hicle of legislation.
Edicta Magistratuww—An edict is a proclamation, originally no doubt oral, later in writing, and any superior magistrate might find it necessary to issue such edicts regarding matters which came within his competence. A peculiarity of Roman law, how ever, is that the magistrates entrusted with jurisdiction made particular use of this power and that their edicts became one of the most important sources of law. Originally the duty of iuris dictio, which means supervising the administration of justice rather than actually deciding cases (see p. 454, "Procedure") had presumably lain with the king, from whom it descended to the consuls. With the growth of business it became impossible for the consuls to discharge this duty in addition to their other func tions and in 367 B.C. a new magistrate, the praetor, was appointed for the purpose. About the year 242 B.C. the increase of foreigners at Rome made it necessary to separate the conduct of suits in which they were concerned from those to which citizens alone were parties, and a second praetor, praetor peregrines, was ap pointed to deal with cases in which a foreigner was involved. In
contradistinction to him, the original praetor, now confined to suits between citizens, came to bear the title urbanus'.
Other judicial officers at Rome whose edicts were of impor tance were the curule aediles, whose duties included the super vision of the market place. In the provinces supreme judicial power lay with the governors, and quaestors carried out functions analogous to those of the aediles at Rome. The law derived from the edicts of all these magistrates was called ius honorarium, as opposed to ius civile in the sense of law based on legislation or custom, but owing to the pre-eminent position of the praetors, the phrase is often used simply as equivalent to ius praetorium. The nature of this magisterial law is peculiar. The praetor was not a legislator, and he could not therefore make law directly as could the sovereign people, but the Roman system of procedure (especially the formulary system, see p. 454) gave him a great power over the provision or refusal of remedies as well as over the form which remedies were to take, and consequently the edict which he issued at the beginning of his term of office set ting out what he intended to do was a document of the greatest importance. In it he could say, for instance, "If one man makes such and such an allegation against another, I will give an action," even though the circumstances alleged would not give any right at civil law. The edict called perpetuum (continuous) because it was intended to announce the principles by which the praetor would be governed throughout his year of office, necessarily ceased to have any validity when that term expired, but it became the practice for each succeeding praetor to take over and reissue as his own much of his predecessor's edict, and by the end of the republic, the part which was thus carried on from year to year (tralaticium) must have been considerable, for jurists were just beginning to write commentaries on the edict, a practice which would not have been worth while if the greater part of it had been liable to annual alteration.
'This is the usual story, but the historians in an endeavour to reconcile discordant tradition may have read back into early times the institutions of their own day. See E. Pais, Ricerche sully Storia, etc. Serie iv. (1921), 265 seq.