PRAETOR
PRAETOR This title, which Cicero (
de Legg. 3.3,
8) connects with
praeire, is found among the
Latin races, and is used by Livy as equivalent to that of strategus with the
Achaeans. Among the Romans we first read of it immediately after the
expulsion of the kings: for a single hereditary ruler they substituted two
annually elected magistrates, first known as Praetors, and only later as
Consuls; whence Cicero, in the passage referred to, represents the title as
properly descriptive of the Consuls as leaders of the armies of the state;
and the familiar use of “Praetorium” in connexion with military
command, and the meaning which it bears in Livy of the period and powers of
the consular office, are also indicative of the original character of this
magistracy.
As distinct from the consulship, the praetorship proper is said by Livy
(
6.42,
7.1) to have
been instituted B.C. 366, though the truth would seem to be that so long as
the military tribunate was in existence two consuls were from time to time
elected in lieu of tribuni militares, and that when this was the case a
third magistrate was always appointed, called praetor, to assist them in
their duties. However this may be, the praetor, probably even at this period
called praetor
urbanus in allusion to the older
magistracy of the custos urbis whom he superseded (Joan. Lydus,
de Mens. 19;
de Magistr. 2.6), was,
as soon as the office became permanent, elected annually from the patricians
only, who secured a monopoly of the new office as a compensation to
themselves for being compelled to share the consulship with the plebeians
(Livy,
l.c.), none of the latter attaining the
praetorship till B.C. 337; he was termed “collega” of the
consuls, and was elected with the same auspices at the Comitia Centuriata
(
Liv. 7.1,
45.44;
Gellius,
13.15). His chief functions were
judicial (
jus in urbe dicere,
Liv. 6.42;
jura
reddere, ib. 7.1), it being to relieve the consuls (who according
to the passage of Cicero referred to were called
judices
a judicando) of this class of business that his office was
established; but the consuls in the earlier Roman history being so
constantly engaged on active military service, he frequently had to take
their place in the city (
Liv. 24.9;
Cic. Fam. 10.1. 2;
D.
C. 46.14,
109.24), in the senate
(
Gel. 14.7;
Liv.
8.2, &c.), and in the Comitia (
Liv.
22.33,
25.27), and in some cases of
emergency even commanded the Roman armies. He was a curule magistrate and
had the imperium, though in a less degree than the consuls (
Gel. 13.15;
Liv.
43.14;
V. Max. 2.8,
2;
Cic. Att. 9.9),
to whom he owed obedience and all the external marks of reverence (
Liv. 10.25,
27.5;
D. C. 26.24;
Plb.
23.1; Aurel. Victor,
de Vir. illust. 72). His insignia
of office were six lictors (Appian,
de reb. Syr. 15), whence
he is called by Polybius
ἡγεμὼν or
στρατηγὸς ἑξαπέλεκυς, and sometimes
simply
ἑξαπέλεκυς. Plutarch
[p. 2.482]（
Sulla, 5) uses the
expression
στρατηγία πολιτική. At a later
period the praetor had only two lictors in Rome (Censorinus, 100.24). As
appears from Livy, the praetorship was at first given to a consul of the
preceding year, and L. Papirius was praetor after being consul (
Liv. 10.47).
Unlike the consulship, the office was one to the number of whose holders
additions might be constitutionally made as circumstances required (Cic.
de Legg. l.c.), and accordingly in B.C. 246 a second
praetor was created, who for distinction's sake was called Praetor
Peregrinus, for the administration of justice in all disputes between
peregrini or peregrini and cives (
Dig. 1,
2,
2,
28; Joan. Lydus,
de Magistr. 1.38, 45;
Liv.
Epit. 19), and from this time onward the two offices seem to
have been regularly divided between the patricians and plebeians (Niebuhr,
Röm. Geschichte, 3.177), it being determined by
lot which of the two should be urbanus and which peregrinus, though if
either was required for military command the functions of both within the
city were discharged by the other (
Liv. 24.44,
25.3,
27.36).
When the territories of Rome were extended beyond the limits of Italy, new
praetors were created for the government of the provinces: two in 227 B.C.
for the administration of Sicily and Sardinia (
Liv.
Epit. 20;
Dig. 1,
2,
2,
32) and two
thirty years later for the Spanish provinces (
Liv.
32.27): it being settled by lot which of the praetorian provinces
each of the four praetors who went abroad was to govern. Later it became
common for the praetor urbanus or peregrinus, after he had discharged his
judicial functions for one year, to be sent to govern a province for
another; a period which in many cases was prolonged until by the Lex Julia
of Caesar it was provided that no governor should administer a praetorian
province for more than one year (
Cic. Phil.
1.8,
19). In connexion with the
institution of
quaestiones perpetuae for the
trial of crimes, Sulla increased the number of praetors from six to eight,
all of whom as a rule exercised judicial functions at Rome during their
proper year of office, becoming propraetors in the provinces for the
following year: under Caesar the number was raised successively to ten,
twelve, fourteen, and sixteen (Sueton.
Jul. 41;
D. C. 42.51,
43.47,
49,
51;
Dig. 1,
2,
2,
32), and by Augustus reduced to twelve
and earlier to ten (
D. C. 53.32,
56.25); but under Tiberius there were as many as
sixteen (
D. C. 58.20,
59.20). Subsequently additional praetors were created for
special departments of legal business: two by Claudius (reduced by Titus to
one) for all suits relating to fideicommissa, when the business in this
department of law had become considerable (Dig.
l.c.; Sueton.
Claud. 23), and one by Nerva for the
hearing of actions between the fiscus and subjects of the Empire (Dig. ib.):
so that, as Pomponius (speaking of his own time), says in
Dig. 1,
2,
2,
34, “eighteen praetors
jus dicunt in the state.” According to Capitolinus
(
Marc. 10), M. Aurelius added a nineteenth praetor. for
matters relating to guardianship, upon whose duties Ulpian wrote a
liber singularis (
Dig. 27,
1,
3,
5,
9).
It will be clear from what has been said that the main business of the
praetors was judicial; the praetors urbanus and peregrinus had the control
of the whole system of Roman civil judicature, in connexion with which their
work is sufficiently described under other articles, especially those on EDICTUM, JUDEX, and
JURISDICTIO Sometimes, however, extraordinary duties
were imposed on them: e. g. in B.C. 144 the praetor peregrinus was
commissioned by a senatusconsultum to look after the repair of certain
aqueducts and prevent the improper use of the water (Frontinus,
de
Aquaeduct. lib. i.): so too, though the appointment of guardians
was no constitutional part of the praetor's province (
Dig.
26,
1,
6,
2), it was conferred, within the city of Rome, on the
praetor urbanus and the majority of the tribuni plebis by a lex Atilia
(Gaius, 1.185). It was part of the same magistrate's duties to superintend
the Ludi Apollinares, and so close an application to business was required
from him that he was permitted to leave the city for only ten days at a
time. With criminal prosecutions he had originally no more to do than any
other magistrate; but when in 149 B.C. (
Cic.
Brut. 27,
106) L. Calpurnius
Piso established the first
quaestio perpetua
for the trial of extortion (
repetundae), one of
the praetors was permanently entrusted with its supervision, and the same
practice was followed with the
quaestiones
instituted by Sulla and others for the trial of Ambitus, Majestas,
Peculatus, Falsum, Parricidium, &c. Though a praetor presided over
the criminal proceedings in these cases, the judges were selected from the
senators, knights, or tribuni aerarii at different periods of history, the
condemnation or acquittal of the accused being determined by a majority of
their votes. [
JUDICIUM]
Any place in which the praetor might by law or custom exercise his
magisterial functions was called
jus (
Dig. 1,
1,
11). Some of these, however, could never be performed elsewhere
than
pro tribunali, where his curule chair was
set upon the comitium, the patrician portion of the Forum, and where he sat
with his friends and assessors: contrasted with the tribunal were the
Subsellia, or part occupied by the judices
or other persons who were present (
Cic. Brut.
84,
290).
Other judicial acts, however, could even tolerably early be performed by him
anywhere (Gaius, 1.20), viz. acts of the
voluntaria
jurisdictio, such as legitimation of manumissions,
in jure cessio, &c. In such cases he was
said to exercise jurisdiction
de piano, and the
volume of business so transacted increased so steadily that at length
regular
sessiones de plano were held (fragm.
Vat. 161), at which the praetor sometimes heard and adjudicated upon
disputes: the rule as to what occasions required him to sit
pro tribunali, and for what a
de
piano jurisdiction sufficed, may be gathered from
Dig. 38,
1,
3,
8;
38,
15,
2,
1;
1,
16,
9,
1.
The office of the praetor continued to exist throughout the imperial period,
though his activity in the issue of annual edicts must have slackened
considerably at the fall of the Republic, and ceased altogether on the
publication of the Edictum perpetuum of Salvius Julianus [
EDICTUM]. In the Eastern Empire
there were at first two praetors only, which number was gradually raised to
eight, and then
[p. 2.483]reduced to three, each of whom was
distinguished by a special name, e. g. Constantinianus, triumphalis (Cod.
Theod. 6, 4, 5, 13, &c.); they were selected by the senate, but the
selection had to be confirmed by the emperor (Cod. Theod. 6, 4, 8, 9, 10,
&c.). They still possessed
jurisdictio,
though their importance in the earlier imperial period was greatly
diminished by the development of the emperor's own jurisdiction and of a
regular system of appellate courts: under Justinian, and in fact from the
abolition of the formula (A.D. 294) onward, the office seems to be merely
that of a judge of first instance.
A person who had been ejected from the senate could recover his rank by being
made praetor (
D. C. 37.30; Plut.
Cicero, 17). Sallustius was made praetor
ἐπὶ τῷ τὴν βουλὴν ἀναλαβεῖν (Dio Cass.
xlii.. 52).
[
J.B.M]
