PROOEMIUM.

I. SI QUIS JUS DICENTI NON OBTEMPERAVERIT.

Si quis jus dicenti non obtemperaverit, quanti ea res erit intra annum adversus eum judicium dabo'.

II. DE CAUTIONE ET POSSESSIONE EX CAUSA DAMNI INFECTI

DANDA.

Dum ei qui aberit prius domum denuntiari jubeam
D. 39. 2. 4. 5. U. 1. (P. 1.)

1 This probably was the very first clause in the Edict, making compulsory all its rules and every decision pronounced in accordance with them; i.e. sanctioning the whole edictum perpetuum and every legal edictum repentinum. The disobedience actionable was, of course, disobedience to the ultimate, not to the intermediate sanctions: for any contravention of the latter merely led on to the next stage of execution. D. 2. 3. I. I.

"Hoc judicium non ad id quod interest, sed quanti ea res est concluditur." D. 2. 3. I. 4.

"The penalty is not measured by the personal injury done to the plaintiff (the magistrate), but is proportionate to the contempt exhibited towards his office."

Why Ulpian and Paulus treated of this topic at the very beginning of their Commentaries is difficult to determine. We presume they did so because it was mentioned in the same early place by the Praetor, but this hypothesis only replaces one difficulty by another. The subject, at any rate, is resumed further on, and there we shall annotate upon it. Vide infra, Partis Secundae § LXXX. Heineccius suggests that in the Prooemium of the Edict there were rules as to the jurisdiction of the municipal magistrates :

Si quis id quod jurisdictionis perpetuae causa, non quod prout res incidit, in albo, vel in charta, vel in alia materia propositum erit, dolo malo corruperit, dabo in eum quinquaginta aureorum judicium, quod populare est❜.

Rudorff adopts the same view: and this certainly appears to be the best explanation of the miscellaneous fragments, numbered II, III, IV. above.

1 Vadimonium, bail for appearance, was demanded after the vocatio in jus; and therefore rules connected with it seem somewhat out of place here. Yet vocatio in jus is discussed by Paulus in the 4th book of his Commentary, and by Ulpian in the 5th of his work upon the Edictum Provinciale, whereas both of them seem to have annotated on Vadimonia in their first books: so that we are driven to the conclusion that Salvius Julianus also had removed this topic, or at any rate a part of it, from its proper place, and inserted it in that earlier portion of his Edict which, for convenience of reference, is designated the Prooemium. Possibly he did so because the inferior magistrates had frequently to bind over defendants to appear before the Praetor. See the remarks of Rudorff and Heineccius in the preceding note. Some of the leading rules about Vadimonia will be found in Gai. Comm, IV. 184–187.

2 This action lies against anyone who maliciously falsifies or alters the edictum perpetuum after its publication. The perverter of an edictum repentinum does not come within its scope. It is "popular," or, in other words, can be brought by any person, and the penalty goes to the prosecutor. "In popularibus actionibus, ubi quis quasi unus ex populo agit.” D. 3. 3. 43. 2

The aureus according to Dio Cassius=the solidus=25 denarii: which again = 100 sestertii or 400 asses, as the denarius after B.C. 217 contained 16 asses and the sestertius 4.

VI.

QUOD QUISQUE JURIS IN ALTERUM STATUERIT, UT IPSE
EODEM UTATUR'.

Qui magistratum potestatemve habebit, si quid in aliquem novi juris statuerit, ipse quandoque adversario postulante eodem jure uti debet.

Si quis apud eum qui magistratum potestatemve habebit, aliquid novi juris obtinuerit, quandoque postea adversario ejus postulante eodem jure adversus eum decernetur; scilicet ut quod ipse quis in alterius persona aequum esse credidisset, id in ipsius quoque persona valere patiatur.

Praeterquam si quis eorum contra eum fecerit qui ipse eorum quid fecisset. D. 2. 2. I. 4.

G. 1.

1 This edict is levelled at those who issue or procure decrees contrary to the jus civile or the edictum perpetuum.

"Any person who during his tenure of magistracy or office has laid down an unjust rule to another's hurt, shall himself abide thereby at a future time on the demand of any opponent of his.Any person who has obtained from a magistrate or officer an unjust rule, shall be dealt with on that selfsame principle, if his adversary make demand thereof: in fact he must allow that rule to be applied to himself which he considered fair to be applied to others. Except when such magistrate or litigant shall have been acting against any one who had himself previously offended in either of these respects."

Magistratus=an urban office: potestas = an office in the provinces. D. 2. I. 13. I.

Novum iniquum; Ulp. in D. 2. 2. 3. pr.: "wilfully perverted ;' Paulus in D. 2. 2. 2. pr. Compare the expression in Tacit. Ann. callidus et novi juris repertor Tiberius."

II. 30:

Adversario = any opponent whatsoever, not merely the person aggrieved by the original ruling.

PARS PRIMA.

DE ACTIONIBUS IN JURE INSTITUENDIS'.

I. DE EDENDO.

Qua quisque actione agere volet, eam prius edere oportet.

1 The first portion of the Edict treats of the proceedings in an action previous to the litis contestatio; including those acts which were performed in jure prior to the redaction of the formula and the appointment of the judex.

These were the editio actionis, in jus vocatio, vadimonium, postulatio.

Other collateral topics were introduced into this portion of the Edict, and we shall endeavour in our notes to show as far as possible the reason for each insertion.

2 "A plaintiff must first specify the action which he proposes to set on foot." He must at the outset particularize the formula for which he intends to make application, although he need not at this early stage of the proceedings state the grounds on which he will demand it. This specification is called the editio actionis, and must at any rate be sufficiently explicit to give the defendant a clue to what is intended, so that he can decide whether to yield or to contest the matter. In the Digest the topic of Vocatio in jus (summons) precedes that of editio, whence we conclude that in Justinian's time the plaintiff first called on his adversary to appear before the magistrate, and on his appearance declared to him the reason for which he had been cited; the ancient procedure of the days of Plautus being thus revived, such as is indicated in Pers. IV. 9. 8,

"D. Quid me in jus vocas?

S. Illi apud Praetorem dicam, sed ego in jus voco."