praetor

praetor, in ancient Rome, originally a consul, and later a judicial magistrate (from c.366 B.C.). In 242 B.C. two praetors were appointed, the urban praetor (praetor urbanus), deciding cases to which citizens were parties, and the peregrine praetor (praetor peregrinus) deciding cases between foreigners. The urban praetor exercised the functions of the consuls in their absence and of the peregrine praetor when he was holding a military command. Two additional praetors were appointed (227) to administer Sicily and Sardinia, and two more (197) to administer Spain. A principal duty of praetors was the production of the public games. Under the empire the functions of the praetor were gradually taken over by other magistrates.

In ancient Rome, an officer with authority to judge cases of equity, responsibility for producing public games, and, in the absence of a consul, extensive authority in the government. After a one-year term, a praetor typically went on to govern a province. Originally only a patrician magistrate could be a praetor, but from circa 337 BC, the position was also open to plebeians. The number of praetors increased to eight by the 1st century BC, two for civil matters and six for specific courts. It continued to vary under different government leaders and emperors; by the late empire, only the city praetor for public games remained.

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Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, either before it was mustered or more typically in the field, or an elected magistrate assigned duties that varied depending on the historical period. The magistracy was called the praetura (praetorship). Its functions were described by the adjective: the praetoria potestas and praetorium imperium (praetorian power and authority) and the praetorium ius (praetorian law), a body of legal precedents set down by the praetors. Praetorium as a substantive meant the location from which the praetor exercised his authority, either the headquarters of his castra, the courthouse (tribunal) of his judiciary, or the city hall of his provincial governorship.

History of the title

The events leading to the origin of the title are not described by the classical authors. The title and the magistracy existed in the time of the chief Republican historian, Titus Livius. The Republican statesman and attorney, Marcus Tullius Cicero, explored the uses and philosophy of the term in his writings.

The prefix prae is a good indication that the title-holder was prior in some way in society. Livy mentions that the Latini were led and governed in warfare by two of them and the Samnites by one. A dictator was called the praetor maximus. The use of the adjectives (praetorius, praetoricius, praetorianus) in a large number of circumstances testify to a general sense. The leadership functions of any corporate body at Rome might be termed praetorial.

The praetoria potestas in Republican Rome was at first held by the consuls. These two officials, elected on a yearly basis, inherited the power of the king. Very likely, the king himself was the first praetor, but in what sense? The best explanation available is that of Cicero in De legibus, in which he proposes ideal laws based on Roman constitutional theory:

Regio imperio duo sunto, iique praeeundo iudicando consulendo praetores iudices consules appellamino. Militiae summum ius habento,...

"Let there be two with the authority of the king, and let them be called praetors, judges and consuls from their going before, judging and consulting. Let them have the supreme right of command of the military..."

This etymology of praetor became and remains the standard. Cicero considers the word to contain the same elemental parts as the verb praeire (praeeo: "to go before, to precede, to lead the way"). In exactly what way he goes before did not survive, but if we interpret praetor as leader we shall probably not go far wrong.

Livy explains that in the year 366 BC the praetura was created to relieve the consuls of their judicial duties. The praetor was, in English, the chief justice, and yet more than that. The consuls were his peers; he was elected by the same electorate and sworn in on the same day with the same oath. With them he retained the ius militiae. The constitution was amended in this way to satisfy the patricians. One position of consul had to be opened to the plebeians. Until 337 BC the praetor was chosen only from the patricians.

From then on praetors appear frequently in Roman history, first as generals and judges, then as provincial governors. Beginning in the late Republic, a former Praetor could serve as a Propraetor ("in place of the Praetor") and act as the governor of one of Rome's provinces. Propraetors were much in demand.

Praetura

The Praetorship was created in around 366-367 BC to take over part of the duties of the Consuls. The first man to be elected to the new praetura was the patrician Spurius Furius, the son of Marcus Furius Camillus, in exchange for the election of Lucius Sextius, Plebeian leader, as one of the consuls for the year. The elections were given a highly probable outcome by partisan politics, the parties being in this case the classes.

The elected Praetor was a Magistratus Curulis, exercised the Imperium, and consequently was one of the Magistratus Majores. He had the right to sit in the sella curulis and wear the toga praetexta. He was attended by six lictors. A praetor was a magistrate with imperium within his own sphere, subject only to the veto of the consuls (who outranked him).

The potestas and the imperium of the consuls and the praetors under the republic should not be exaggerated. They did not use independent judgement in resolving matters of state. Unlike today's executive branches, they were assigned high-level tasks directly by senatorial decree under the authority of the SPQR.

Livy describes the assignments given to either consuls or praetors in some detail. As magistrates they had standing duties to perform, especially of a religious nature. The senate defined what senior positions were to exist before the elections. Immediately after the elections, the new officials cast lots for the assignments, which were mainly provincial governorships. As there came to be considerably more praetors than there were consuls, the praetors took most of the provinces. A province given to consuls was termed consular. Proconsuls and propraetors joined in the lottery as well. The entire population of these elected officials were the department heads of the government.

Any consul or any praetor could at any time be pulled away from his duties of the moment to head a task force, and there were many, especially military. The Roman government worked hard and was always understaffed. Livy mentions that, among other tasks, these executive officers were told to lead troops to a threat, foreign or domestic, investigate possible subversion, raise troops, conduct special sacrifices, distribute windfall money, appoint commissioners and exterminate locusts. The one principle that limited what could be assigned to them was that it must not be minima, "little things. They were by definition doers of maxima. Thus, on a military assignment, the praetor was always the commanding general, never a lesser officer. Praetors could delegate at will.

Additional Praetors and their Duties

Republican

In the year 246 BC the Senate created a second Praetura. There were two reasons for this: to relieve the crush of judicial business and to give the Republic a magistrate with Imperium who could field an army in an emergency when both consuls were fighting a far-off war. He was to administer justice in disputes between peregrini, or between peregrini and Roman citizens. Accordingly he was called the Praetor Peregrinus. The other Praetor was then called Praetor Urbanus. He presided in cases between citizens.

The Senate required that some senior officer remain in Rome at all times. This duty now fell to the Praetor Urbanus. As is implied by the name, he was allowed to leave the city only for up to ten days at a time. He was therefore given appropriate duties at Rome. He superintended the Ludi Apollinares. He was also the chief magistrate for the administration of justice and the promulgation of Edicta, which formed a corpus of precedents. The development and improvement of Roman Law owes much to these precedents.

The expansion of Roman authority over other lands required the addition of praetors. Two were created in 227 BC, for the administration of Sicily and Sardinia, and two more when the two Spanish provinces were formed in 197 BC. Lucius Cornelius Sulla increased the number of Praetors to eight, which Julius Caesar raised successively to ten, then fourteen, and finally to sixteen.

Imperial

Augustus made changes that were designed to reduce the Praetor to being an imperial administrator rather than a magistrate. The electoral body was changed to the Senate, which was now (through personal terror) an instrument of imperial ratification. The establishment of the principate was the restoration of monarchy under another name. The emperor therefore assumed the powers once held by the kings, but he used the apparatus of the republic to exercise them. For example, the emperor presided over the highest courts of appeal.

The need for administrators remained just as acute. After several changes Augustus fixed the number at twelve. Under Tiberius there were sixteen. As imperial administrators their duties extended to matters the republic would have considered minima. Two praetors were appointed by Claudius for matters relating to Fideicommissa (trusts), when the business in that department of the law had become considerable, but Titus reduced the number to one; and Nerva added a Praetor for the decision of matters between the Fiscus (treasury) and individuals. Marcus Aurelius appointed a Praetor for matters relating to tutela (guardianship).

Praetors as judges

Roman court cases fell into the two broad categories of civil or criminal trials. The involvement of a Praetor in either was as follows.

Actiones

In an actio, which was civil, the Praetor could either issue an interdictum (interdict) forbidding some circumstance or appoint a iudex (judge). Proceedings before the praetor were technically said to be in iure. At this stage, the Praetor would establish a formula directing the iudex as to the remedy to be given if he found that certain circumstances were satisfied; for instance, "Let X be iudex. If it appears that the defendant ought to pay 10,000 sesterces to the plaintiff, let the iudex condemn the defendant to pay 10,000 sesterces to the plaintiff. If it does not so appear, let the plaintiff absolve him. After they were handed over to the iudex, they were no longer in iure before the Praetor, but "apud iudicem". The iudicium of the iudex was binding. By the time of Diocletian, however, this two-stage process had largely disappeared, and the Praetor would either hear the whole case in person or appoint a delegate (a iudex pedaneus), taking steps for the enforcement of the decision; the formula was replaced by an informal system of pleadings.

During the time of the Roman Republic the Urban Praetor issued an annual edict, usually on the advice of jurists (since the Praetor himself was not necessarily educated in the law), setting out the circumstances under which he would grant remedies. The legal provisions arising from the Praetor's Edict were known as ius honorarium; in theory the Praetor did not have power to alter the law, but in practice the Edict altered the rights and duties of individuals and was effectively a legislative document. In the reign of Hadrian, however, the terms of the Edict were made permanent and the Praetor's de facto legislative role was abolished.

Quaestiones perpetuae

The Praetors also presided at the Quaestiones perpetuae (which were criminal proceedings), so-called because they were of certain types, with a Praetor being assigned to one type on a permanent basis. The Praetors appointed judges who acted as jurors in voting for guilt or innocence. The verdict was either acquittal or condemnation.

These quaestiones looked into crimina publica, "crimes against the public", such as were worthy of the attention of a Praetor. The penalty on conviction was usually death, but sometimes other severe penalties were used. In the late Republic the public crimes were Repetundae, Ambitus, Majestas, and Peculatus, which, when there were six Praetors, were assigned to four out of the number. Sulla added to these Quaestiones those of Falsum, De Sicariis et Veneficis, and De Parricidis and for this purpose he added two or according to some accounts four praetors.

Outdoor actions

The Praetor when he administered justice sat on a sella curulis in a tribunal, which was that part of the court which was appropriated to the Praetor and his assessors and friends, and is opposed to the subsellia, or part occupied by the iudices (judges), and others who were present. But the Praetor could do many ministerial acts out of court, or as it was expressed e plano, or ex aequo loco, which terms are opposed to e tribunali or ex superiore loco: for instance, he could in certain cases give validity to the act of manumission when he was out-of-doors, as on his road to the bath or to the theatre.

Later Roman era

By the time of the permanent division of the Roman Empire in 395, Praetors' responsibilities had been reduced to a purely municipal role. Their sole duty was to manage the spending of money on the exhibition of games or on public works. However with the decline of the other traditional Roman offices such as that of tribune the Praetorship remained an important portal through which aristocrats could gain access to either the Western or Eastern Senates. The Praetorship was a costly position to hold as Praetors were expected to possess a treasury from which they could draw funds for their municipal duties. There is known to have been 8 Praetors in the Eastern Empire who shared the financial burden between them.

Recent Praetors

During the interwar period the 71 counties of Romania where divided into a various numbers of plăşi (singular: plasă), headed by a Pretor, appointed by the Prefect. The institution headed by the Pretor was called Preturǎ.

Until recently some German cities retained an office entitled Praetor.

In Italy, until 1998, Praetor was a magistrate with particular duty (especially in civil branch).

Classical Latin Praetor became medieval Latin Pretor; Praetura, Pretura, etc.

References

See also

• Constitution of the Roman Republic
• List of topics related to ancient Rome
• Political institutions of Rome

Books

• Brennan, T. Corey (2001). The Praetorship in the Roman Republic. Oxford University Press. ISBN 0-19-513867-8

External links

• Peck, Harry Thurston, Harpers Dictionary of Classical Antiquities (1898), Praetor
• Smith, William, Dictionary of Greek and Roman Antiquities, Praetor.
• Livy, Books 1-5, English, University of Virginia searchable etext.
• Livy, Books 6-10, English, University of Virginia searchable etext.
• Livy, Books 40-45, English, University of Virginia searchable etext.
• Cicero, de legibus, Book 3, Latin. The Latin Library site.
• The Roman Law Library by Professor Yves Lassard and Alexandr Koptev