There were always at Rome at least two prætors as judges: one
adjudicated matters between citizens and was called the prætor of the
city (prætor urbanus); the other judged cases between citizens and
aliens and was called prætor of the aliens (prætor peregrinus), or,
more exactly, prætor between aliens and citizens. There was need of at
least two tribunals, since an alien could not be admitted to the
tribunal of the citizens. These prætors, thanks to their absolute
power, adjusted cases according to their sense of equity; the prætor
of the aliens was bound by no law, for the Roman laws were made only
for Roman citizens. And yet, since each prætor was to sit and judge
for a year, on entering upon his office he promulgated a decree in
which he indicated the rules that he expected to follow in his
tribunal; this was the Prætor's Edict. At the end of the year, when
the præter left his office, his ordinance was no longer in force, and
his successor had the right to make an entirely different one. But it
came to be the custom for each prætor to preserve the edicts of his
predecessors, making a few changes and some additions. Thus
accumulated for centuries the ordinances of the magistrates. At last
the emperor Hadrian in the second century had the Prætorian Edict
codified and gave it the force of law.
=Civil Law and the Law of Nations.=--As there were two separate
tribunals, there developed two systems of rules, two different laws.
The rules applied to the affairs of citizens by the prætor of the city
formed the Civil Law--that is to say, the law of the city. The rules
followed by the prætor of aliens constituted the Law of Nations--that
is to say, of the peoples (alien to Rome). It was then perceived that
of these two laws the more human, the more sensible, the simpler--in a
word, the better, was the law of aliens. The law of citizens, derived
from the superstitious and strict rules of the old Romans, had
preserved from this rude origin troublesome formulas and barbarous
regulations. The Law of Nations, on the contrary, had for its
foundation the dealings of merchants and of men established in Rome,
dealings that were free from every formula, from every national
prejudice, and were slowly developed and tried by the experience of
several centuries. And so it may be seen how contrary to reason the
ancient law was. "Strict law is the highest injustice," is a Roman
proverb. The prætors of the city set themselves to correct the ancient
law and to judge according to equity or justice. They came gradually
to apply to citizens the same rules that the prætor of the aliens
followed in his tribunal. For example, the Roman law ordained that
only relatives on the male side should be heirs; the prætor summoned
the relatives on the female side also to participate in the
succession.
Public-domain text, read in full here on John Shaqi.
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