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Praetor

PRAETOR (Lat. prae-itor, " he who goes before," "a leader"), originally a military title, was in classical times the designation of the highest magistrates in the Latin towns. The Roman consuls were at first called praetors; in the early code of the Twelve Tables (450 B.C.) they appear to have had no other title. By the Licinian law of 367, which abolished the military tribunes with consular power and enacted that the supreme executive should henceforward be in the hands of the two consuls, a new magistrate was at the same time created who was to be a colleague of the consuls, though with lower rank and lesser powers. This new magistrate was entrusted with the exclusive jurisdiction in civil cases; in other respects his powers resembled those of the consuls. His distinctive title was the city praetor (praetor urbanus), and in aftertime, when the number of praetors was increased, the city praetor always ranked first. To this new magistrate the title of " praetor " was thenceforward properly restricted. 1 About 242 the increase of a foreign population in Rome necessitated the creation of a second praetor for the decision of suits between foreigners (peregrini) or between citizens and foreigners. This praetor was known at a later time as the " foreign praetor " {praetor peregrinus)? About 227 two more praetors were added to administer the recently acquired provinces of Sicily and Sardinia. The conquest of Spain occasioned the appointment of two more in 197, of whom one governed Hither and the other Further Spain. The number of praetors, thus augmented to six, remained stationary till Sulla's time (82). But in the interval their duties vastly multiplied. On the one hand, five new provinces were added to the Roman dominions Macedonia and Achaia in 146, Africa in the same year, Asia in 134, Gallia Narbonensis in 118, Cilicia probably in 102. On the other hand, new and permanent jury courts (quaestiones perpetuae) were instituted at Rome, over which the praetors were called on to preside. To meet this increase of business the tenure of office of the praetors and also of the consuls was practically prolonged from one to two years, with the distinction that in their second year of office they bore the titles of propraetor and proconsul instead of praetor and consul. The prolongation of office, together with the participation of the proconsuls in duties which properly fell to the praetors, formed the basis of Sulla's arrangements. He increased the number of the praetors from six to eight, and ordained that henceforward all the eight should in their first year administer justice at Rome and in their second should as propraetors undertake the government of provinces. The courts over which the praetors presided, in addition to those of the city praetor and the foreign praetor, dealt with the following offences: oppression of the provincials by governors (repetundarum), bribery (ambitus), embezzlement (peculatus), treason (majestatis), murder (de sicariis et veneficis), and probably forgery (falsi). A tenth province 1 Some writers, following Livy vi. 42, assert that at first the praetofship was open to patricians only, but Mommsen (Rom. Staaisrechi ii. 195 [204] shows that this is probably a mistake. The election of a plebeian to the office for the first time in 337 was certainly opposed by the consul who presided at the election, but there appears to have been no legal obstacle to it.

[1] His official title in republican times was Praetor qui inter peregrines jus dicit, under the empire Praetor qui inter ctves peregrines jus dicit, until the time of Vespasian, when the abbreviated title praetor peregrinus came into use.

(Gallia cisalpina) was added to the previous nine, and thus the number of judicial and provincial departments corresponded to the annual number of praetors, propraetors and proconsuls. The proportion, however, was not long maintained: new provinces were added to the empire Bithynia in 74, Cyrene about the same time, Crete in 67, Syria in 64 and one or more new law courts were instituted. To keep pace with the increase of duties Julius Caesar increased the number of praetors successively to ten, fourteen and sixteen; after his time the number varied from eight to eighteen.

The praetors were elected, like the consuls, by the people assembled in the comitia centuriata and with the same formalities. 1 They regularly held office for a year; only in the transition period between the republic and the empire was their tenure of office sometimes limited to a few months. 2 The insignia of the praetor were those common to the higher Roman magistrates the purple-edged robe (toga praetexta) and the ivory chair (sella curulis); in Rome he was attended by two lictors, in the provinces- by six. The praetors elect cast lots to determine the department which each of them should administer. A praetor was essentially a civil judge, and as such he was accustomed at or before his entry on office to publish an edict setting forth the rules of law and procedure by which he intended to be guided in his decisions. As these rules were often accepted by his successors, the praetor thus acquired an almost legislatorial power, and his edicts, thus continued, corrected and amplified from year to year, became, under the title of the " perpetual " edicts, one of the most important factors in moulding Roman law. Their tendency was to smooth away the occasional harshness and anomalies- of the civil law by substituting rules of equity for the letter of the law, and in this respect the Roman praetor has been compared to the English chancellor. His functions were considerably modified by the introduction of the standing jury courts (quaestiones perpetuae). Hitherto the praetor had conducted the preliminary inquiry as to whether an action would lie, and had appointed for the actual trial of the case a deputy, whom he instructed in the law applicable to the case and whose decisions he enforced. The proceedings before the praetor were technically known as jus in distinction from indicium, which was the actual trial before the deputy judge. But in the standing jury courts (of which the first that for repelundae was instituted in 149), or rather in the most important of them, the praetors themselves presided and tried the cases. These new courts, though formally civil, were substantially criminal courts; and thus a criminal jurisdiction was added to the original civil jurisdiction of the praetors. Under the empire various special functions were assigned to certain praetors, such as the two treasury praetors (praetores aerarii), 3 appointed by Augustus in 23; the spear praetor (praetor hastarius), who presided over the court of the Hundred Men, which dealt especially with cases of inheritance; the two trust praetors (praetores fideicommissarii) , appointed by Claudius to look after cases of trust estates, but reduced by Titus to one; the ward praetor (praetor tutelaris), appointed by Marcus Aurelius to deal with the affairs of minors; and the liberation praetor (praetor de liberalibus causis), who tried cases turning on the liberation of slaves. 4 There is no evidence that the praetors continued to preside over the standing courts after the beginning of the 3rd century A.D., and the foreign praetorship disappears about this time. 5 Even the jurisdiction of the city praetor seems not to have survived the reforms of Diocletian, though the office itself continued to exist. But of the praetorships with special jurisdiction (especially the ward praetorship and the liberation 1 [Until the time of Tiberius, when their election was transferred to the Senate.] 2 [The age for the office was forty under the republic, thirty under the empire.] 8 [They took the place of the quaestors; this arrangement continued till the time of Claudius.] 4 [The fiscal praetor (praetor fiscalis) was appointed by Nerva to hear claims preferred against the imperial fiscus.] 6 Marquardt conjectures with much probability that when Caracalla extended the Roman franchise to the whole empire he at the same time abolished the foreign praetorship.

praetorship) some lasted into the 4th century and were copied in the constitution of Constantinople.

Besides their judicial functions, the praetors, as colleagues of the consuls, possessed, though in a less degree, all the consular powers, which they regularly exercised in the absence of the consuls; but in the presence of a consul they exercised them only at the special command either of the consul or, more usually, of the senate. Thus the praetor possessed military power (imperium) ; even the city praetor, though attached by his office to Rome, could not only levy troops but also in certain circumstances take the command in person. As provincial governors the praetors had frequent occasion to exercise their military powers, and they were often accorded a triumph. The city praetor presided over popular assemblies for the election of certain inferior magistrates, but all the praetors officiating in Rome had the right to summon assemblies for the purpose of legislation. In the absence of the consuls the city praetor, and in default of him the other praetors, were empowered to call meetings of the senate. Public religious duties, such as the fulfilment of state vows, the celebration of sacrifices and games, and the fixing of the dates of movable feasts, probably only fell to the praetors in the absence of the consuls. But since in the early times the consuls as a rule spent only the first months of their year of office in Rome, it is probable that a considerable share of religious business devolved on the city praetor; this was certainly the case with the Festival of the Cross-roads (compitalia), and he directed the games in honour of Apollo from their institution in 212. Augustus in 22 placed the direction of all the popular festivals in the hands of the praetors, and it is not without significance that the praetors continued thus to minister to the pleasures of the Roman mob for centuries after they had ceased almost entirely to transact the business of the state. (For the praetor as provincial governor see PROVINCE.) (J.G.FR.;X.)

A full account of the praetorship will be found in Mommsen, Romisches Staatsrecht (1887), vol. ii. and P. Willems, Le Droit public remain (1883); T. M. Taylor's Constitutional and Political History of Rome (1899) will also be found useful. There is a monograph by E. Labatut, Histoire de la preture (1868).

Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)

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