celebrated Ritter, professor at
Wittemberg, who contested it in notes appended to the work of
Heineccius, and retained in all subsequent editions of that book.
After Ritter, the learned Bach undertook to vindicate the edicts of the
praetors in his Historia Jurisprud. Rom. edit. 6, p. 218, 224. But it
remained for a civilian of our own days to throw light on the spirit and
true character of this institution. M. Hugo has completely demonstrated
that the praetorian edicts furnished the salutary means of perpetually
harmonizing the legislation with the spirit of the times. The praetors
were the true organs of public opinion. It was not according to their
caprice that they framed their regulations, but according to the manners
and to the opinions of the great civil lawyers of their day. We know
from Cicero himself, that it was esteemed a great honor among the
Romans to publish an edict, well conceived and well drawn. The most
distinguished lawyers of Rome were invited by the praetor to assist in
framing this annual law, which, according to its principle, was only a
declaration which the praetor made to the public, to announce the
manner in which he would judge, and to guard against every charge of
partiality. Those who had reason to fear his opinions might delay their
cause till the following year. The praetor was responsible for all
the faults which he committed. The tribunes could lodge an accusation
against the praetor who issued a partial edict. He was bound strictly
to follow and to observe the regulations published by him at the
commencement of his year of office, according to the Cornelian law, by
which these edicts were called perpetual, and he could make no change
in a regulation once published. The praetor was obliged to submit to
his own edict, and to judge his own affairs according to its provisions.
These magistrates had no power of departing from the fundamental
laws, or the laws of the Twelve Tables. The people held them in
such consideration, that they rarely enacted laws contrary to their
provisions; but as some provisions were found inefficient, others
opposed to the manners of the people, and to the spirit of subsequent
ages, the praetors, still maintaining respect for the laws, endeavored
to bring them into accordance with the necessities of the existing
time, by such fictions as best suited the nature of the case. In what
legislation do we not find these fictions, which even yet exist, absurd
and ridicul