The Senatus Consulta also formed a source of law under the Republic. That a senatus consultum in the time of Gaius (1. 4) should have the force of law (vicem legia optinet) may be easily admitted ; but Gains in this passage appears to be referring not only to such senatus consults as had been passed under the empire, but to the senatus consults generally as a source of law. It appears that the senate gradually came to be considered as the representative of the curiae, and that its consulta, in many matters relating to adminis• tration, the care of religion, the terarium, and the administration of the provinces, had the full effect of laws. It does not seem as if the Romans themselves had a very clear notion of the way in which the senate came to exercise the power of legislation; but they imagined that it arose of necessity with the iucreasing population of the state and the increase of public business. The senate thus became an active administrating body, and, as an easy consequence, that which it enacted (coustituit) was observed, and this new source of law was termed Senatua Consultum. (` Dig.,' L, tit. 2.) It seems probable that the senate began to exercise the power of making senatua con sults after the passing of the Hortensia Lex, though it is not pretended that the Hortensia Lex, or any other Lex, gave this power to the senate. No senatus consulta are recorded as designated by the names of magistrates till the time of Augustus, a circumstance which seems to show that, whatever binding authority senates consulta might have acquired under the Republic, they were not then viewed as laws properly so called, or as having the full effect of loges. But from the time of Augustus the titles of senates eonsulta frequently occur ; their names, like those of the lope, were derived from the consuls, as S. C.
Vellehuum, Pegasianum, Trebellianum, &c., or of the emperor who proposed them, as S. C. Claudianum, Nerouienurn, &c.; or they were said to be made " auctore Principe," or "ex auctoritato Principis." The expression applied to the senate so enacting was " ccnsere." (Gahm, i. 47.) Special conaulta were sometimes passed for the purpose of explaining or rendering effectual previous legea.
A new source of law was supplied by the Edicta of those magistrates who had the Jus Edicendi, but mainly by the praetors, the ',hetes urbenus and the pastor peregrinus. 'The edicts of the praetor urbanus were the most important. The body of Law which was formed by the Meta is accordingly sometimes called Jus Przetorium, which term however might be limited to the Edicta of the praetors, as opposed to those of the curule tediles, the tribunes, censors, and pontifices. The name Jos Honorarium, as opposed to Jug Civile, comprehends the whole body of edictal Law; and the name Honorarium was given to it, apparently because the Jus Edicendi was exercised only by those magistrates who had the Honoree. Jus Civile, in its larger sense, comprehended all the law of any given nation ; but the Jun Civile Romanorum, as opposed to the Honorarium, consisted of Leges, Senates Consults, to which, tinder the empire, were added the Decreta Principum and the Auctoritas Prudentium. The Honorarium Jus was introduced for the purpose of aiding, supplying, and correcting the defects of the Jus Civile Romanorum in its limited sense. (' I., tit. 1., s. 7.) The historical origin of the edictal power is not known, but in the time of Cicero it had been so long exeraLsed, and the Edicta had been so far formed into a regular system, that the study of the edictal law was a main part of the systematic study of the Roman law, and had taken the place of the twelve Tables as an elementary branch of in struction. (Cie., Legg.,' IS 4, 23 ; i. 5.) Serving Sulpicius, a die tinguishcd jurist and a friend of Cicero, wrote two small books on the Edict, which were followed by a work of Ofihius, also on the Edict.
Though the history of the edictal law, as already observed, cannot be traced, it thus appears that it had assumed a systematic form in the time of Cicero.
An Dlietuin was a rule promulgated by a magistrates when lie entered on his office. It was committed to writing and put up In a public place. Its object was to declare by what rules the praetor would be governed in the administration of justice during the year of his office; and hence the Edictum was sometimes called Perpetuum or Annua Lex. An Edictum ltepentinum applied only to the particular occasion on which it was made. All offices being annual, the rules of one magistratus were not binding on his successor, but his successor might adopt them into his own Edictum, and such adopted Edictum then became an Edictum Tralatitium. In this way numerous Edicta
were adopted by one magistrates from the Edicts of his predecessors, and thus gradually a body of rules was formed and established, which experience had proved to be useful. Those Edicta which were of great importance are often referred to under the name of the magistrates who promulgated them, as the Edicturn Carbonianurn and others.
The general character of the Edict has been already stated. It is described in other words as "viva vox juris chills," as a mode by which the rigid rules of the civil law were altered and extended to suit the altered circumstances of the times. The changes introduced by positive enactments into the Jus Privatum of the Roman Law seem to Lave been very unimportant. It was not consistent with Roman notions to alter or change fundamental principles, and most of tho legislation of the republican period had reference to the disputes between the two estates of the patricians and plebeians, and to other parts of the Jus Publicum. Accordingly it was left to the magistrates gradually to introduce the necessary changes into the Jus Privatum; but the process of doing this was in strict conformity to the principles of the old law. The Edict did not affect to make new law, but,, to adopt as law what custom had sanctioned, provided it was not against the Jus Chile; to give an action when a bond fide right existed, if the old law gave none ; to protect a man in bond fide possession of pro perty, without affecting to give him ownership, which the law alone could give him by virtue of usucapion ; to aid parties by fictions, which however were always of such a kind that the thing which the fiction supposed, was that which would have given a strictly legal right. A great part of the efficacy of the Edict consisted in extending the remedies by action; and after the abolition of the Legis Actiones (with the exception of the Actio Damni Infeeti, and of matters which be longed to the cognisance of the Centumviri) by the Lex sEbutia and two Leges Julien, the mode of proceeding in actions was settled by the formulas of the Edieta. Still even here it seems probable that the praetors followed the analogy of the Legis Actiones and framed their formulae accordingly. The Actiones given by the Edict were named after their author, as Publiciana, &e. The commentators on the Edicts were numerous under the early emperors. Labeo wrote at least four books on the Edictum of the Praetor Urbanus. Cselius Sabinus com mented on the Edict of the Curuie sEdiles. In the time of Hadrian, Salvius Julianus, who had himself been praetor, compiled a work on the Edict, which was called Edietum Perpetuum. Nothing is known of the detail of this work, but it appears probable that it was designed to be a systematic exhibition of the whole body of edictal law, and as such it must have had considerable influence on the subsequent con dition of jurisprudence. At what time the Edicta ceased to be made by the magi.stratus is a disputed point.. The edictal power certainly existed under the empire, and even after the compilation of the Edictum Perpetuum of Julianus, but it must have been comparatively little exercised, as the practice of making new laws by Senatus Consults prevailed under the Csesars after the time of Augustus, and the lin perial Constitutions are mentioned as one of the recognised sources of law in the time of the Antonines. (Gaius, i. 5.) With the establishment of the Imperial Constitution begins a new epoch in the Roman law. The loges of Augustus and those of his predecessor had some influence on the Jus Privatum, though they did not affect the fundamental principles of the Roman law. A Lex Julia came into operation, n.e. 13, but it is better known as the Lex Julia ct Papia Poppsca, owing to the circumstance of another lex of the same import, but less severe in its provisions, being passed as a kind of supplement to it in the consulship of M. Papius Mutilus and Q. Pop seem Secundus, A.D. 9. This law had for its object the encouragement of marriage, but it contained a great variety of provisions : it is not known whether it was passed at the Comitia Centuriata or Tribute. A Lex Julia de Adulteriis, which also contained a chapter on the dos, is of uncertain date, but was probably passed before the former Lex Julia came into operation. Several Leges Julies Judiciaries are also mentioned, which related both to Judicia Publica and Private, and some of which may probably belong to the time of the dictator Czessar.