Praetor

“ Sulla increased the number of praetors to eight, which Julius Caesar raised successively to ten, twelve, fourteen, and sixteen. Augustus, after several changes, fixed the number at twelve. Under Tiberius there were sixteen. Two praetors were appointed by Claudius for matters relating to fideicommissa, when the business in this 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 and individuals. ”

“ The praetors were elected, like the consuls, by the people assembled in the comitia centuriata and with the same formalities. [3] 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. [4] 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. ”

“ In this way the praetors might summon the Senate, [924] propose a rogatio, [925] hold the levy, [926] and exercise criminal jurisdiction delegated by the people. [927] Usually, however, such duties were performed by them only in the absence of the consuls, and the praetor urbanus generally took the lead, [928] although the summons of the Senate by both home praetors, and even by a provincial praetor, was not unknown. [929]
The special functions of the praetors were always assigned by lot (sortitio) . ”

“ 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 ”

“ The really important fact was that a man who had been praetor seven years before and probably regarded himself as the greatest soldier of the age, was carrying out the behests and correcting the blunders of a general who owed his command to his aristocratic connections and blameless record in civil life. ”

“ As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it,—the praetor fidei commissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tutelaris; while fiscal questions in which a private party was interested went to a praetor fisci, whose creation was due to Nerva. ”

“ So one who is a senator, or of the conscript fathers, is not necessarily forthwith also a patrician. So my friends the Romans are now making themselves ridiculous when they call their praetor “senator,” since a senate cannot consist of one man and a senator must have colleagues, and he who is now called “senator” performs the function of praetor. But, you say, the title of patrician is found in many books. [480] Yes; but in those which speak of times later than Constantine; therefore the “privilege” was executed after Constantine.
But how can the clergy become consuls? ”

“ By a legal fiction the courts of the praefecturae were held to be within the praetor’s sphere of competence, i.e. within a single milestone of the city; they were, to use the technical Roman expression, judicia legitima. No trace whatever has been preserved of the criminal procedure applied to such communities. The fact that the praefect was the delegate of a civil magistrate would not prove that he was incapable of exercising criminal jurisdiction, for jurisdictio of every kind is latent in the praetor’s imperium. ”

“ From this point of view we can see how the peregrin praetor became the primary organ in developing jus gentium. But there is some reason for holding that the urban praetor had also, before the Aebutian law, occasionally exercised his imperium by granting actions in factum, and in this way perhaps enforced it number of contracts and other obligations in which elements of equity and good faith were present and which the jus civile left remediless. ”

“ The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. ”

“ In course of time, as such cases became of more frequent occurrence, such quaestiones were made perpetual, that is, particular magistrates were appointed for the purpose. It was eventually determined, that while the praetor urbanus and peregrinus should continue to exercise their usual jurisdictions, the other praetors should preside at public trials. In such trials any person might be an accuser (accusator) . The praetor generally presided as quaesitor, assisted by a judex quaestionis, and a body of judices called his consilium. ”

“ The general assistance which the quaestors were meant to render to the consuls was extended, as we saw, [1003] in the year 421 B.C. to their activity in the field. Each consul or praetor who assumed a military command was given a particular quaestor (the dictator being exempted from what was regarded as a limitation on the discretionary powers of the magistrate) , and, [215] after the custom had grown up of extending the imperium, these assistants accompanied the proconsuls and propraetors to their provinces. ”

“ But as you have not received any injury, and would yet be creating danger for your praetor, you must admit that you are endeavouring to wage an unjust and impious war against him. In truth, your quaestorship is an argument of so strong a nature, that you would have to take a great deal of pains to find an excuse for accusing him to whom you had acted as quaestor, and can never be a reason why you should claim on that account to have the office of prosecuting him entrusted to you above all men. ”

“ There is a widespread impression that the Praetorian guards at all times held the Roman empire in their hands, but its erroneousness is demonstrated by the events of the year 193. For the first time in the course of imperial history the Praetorians presumed to nominate as emperor a man who had no legions at his back. ”

“ He was the first to strike down an enemy, and he rode so far into the hostile ranks that it was difficult to recognise to which side he belonged. The praetor's conspicuous courage fired the cavalry, and the cavalry fired the infantry. The leading centurions who saw the praetors in the midst of the enemy's weapons felt that their honour was at stake; they each urged on their standard-bearers, shouting to them to carry their standards forward, and then called upon the soldiers to follow them up. ”

“ At Rome the pretors appeared also with much pomp; two lictors preceded them, they wore the prætexta, or the white robe with purple borders, they sat in curule chairs, and their tribunal was distinguished by a sword and a spear, while they administered justice. The tribunal was called prætorium. When they rode they appeared on white horses at Rome, as a mark of distinction. The pretor who appointed judges to try foreign causes, was called prætor peregrinus. The pretors Cereales, appointed by Julius Cæsar, were employed in providing corn and provision for the city. ”

“ This last provision opened to any one of the plebeian class the highest office in the state. The nobles, when they saw that it would be impossible to resist the popular demand, had recourse to the old device. They effected a compromise, whereby the judicial powers of the consuls were taken from them and conferred upon a new magistrate, who bore the name of praetor. Only patricians, of course, were to be eligible to this new office. ”

“ Thither they sent Aemilius, in the quality of praetor, not with six axes, which number other praetors were accustomed to have carried before them, but with twelve; so that in his praetorship he was honored with the dignity of a consul. He twice overcame the barbarians in battle, thirty thousand of whom were slain: successes chiefly to be ascribed to the wisdom and conduct of the commander, who by his great skill in choosing the advantage of the ground, and making the onset at the passage of a river, gave his soldiers an easy victory. ”

“ I say that I have not been replaced in compliance with the terms of the praetor's decree. What do we say to this! Your defence must be destroyed either by your own sword (all men say) or by mine. 83If you take refuge in the intention of the interdict, and say that inquiry must be made into what farm was meant when Aebutius was ordered to replace me, and if you think it not right for the justice of the case to be caught in a trap made of words, then you come into my camp, you are fighting under my standard. That is my defence ”

“ The praetor, therefore, immediately issued orders that the keepers should open all the temples throughout the city, and that the people should be allowed during the whole day to go round and make their adoration to the gods, and return their thanks. ”

“ Choose thy lord and master from among those who are ready to acclaim thy choice as final. The praetorian guard is prepared I tell thee. The mad Cæsar yesterday paved the way for our success. Choose thy husband, Augusta, and the praetorian guard will forthwith proclaim him as the greatest and best of Cæsars, princeps, imperator, the father of his armies. The people will go wild with joy and will deify thee and thy lord. ”

“ The office of Prætorian præfect The command of these favoured and formidable troops soon became the first office of the empire. As the government degenerated into military despotism, the Prætorian præfect, who in his origin had been a simple captain of the guards, was placed, not only at the head of the army, but of the finances, and even of the law. In every department of administration, he represented the person, and exercised the authority, of the emperor. The first præfect who enjoyed and abused this immense power was Plautianus, the favourite minister of Severus. ”

“ In the beginning of the seventh century of Rome they were made perpetual: four praetors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new praetors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed ”

“ It implied the imperium. At Rome these magistrates would be consul, praetor, dictator, or interrex; in the provinces the governors.
[520] Gaius iv. 16.
[521] “Praetor addicit libertatem.” See Cic. ad Att. vii. 2, 8.
[522] For the censor as such had no power to confer freedom (Mommsen Staatsr. ii. p. 374) . Cicero (de Orat. i. 40, 183) mentions the juristic controversy whether the slave was free from the moment of the announcement or from the lustrum, which gave validity to the censorian ordinances. ”

“ Not one hour will be found free from theft, from wickedness, from cruelty, from atrocity. These years have been passed by you in the quaestorship, and in the lieutenancy in Asia, and in the city praetorship, and in the Sicilian praetorship. On which account a division of my whole action will also be made into four parts.
13 As quaestor you received our province by lot, according to the decree of the senate. A consular province fell to your lot, so that you were with Cnaeus Carbo, the consul, and had that province. ”

“ This gave him a new social status, and being at the same time a popular favourite and a brave, energetic soldier, he was in 115 elected praetor, in which capacity he effected the subjugation of the troublesome province of Further Spain. ”

“ Most of the people ran swiftly to the praetorian camp, because they feared that the praetorians would be reluctant to accept Pertinax as emperor. 5. Indeed, they suspected that in the future these soldiers would show little moderation; they were conditioned to blind obedience to a tyrant and were masters in the use of violence. All the people therefore went out to the camp to force the praetorians to submit. They were in the camp when Laetus and Eclectus arrived, bringing Pertinax with them. ”

“ Our Praetorium, which no base action has ever denied, shall be open to all. No servile throng shall lord it over you. You shall come straight to us, making your requests known to us through no hired interpreter, and none shall leave our presence poorer than he entered it. ”

“ But when the empire came into the hands of that revered elder statesman Pertinax, the memory of whose courage and service to the state is still firmly fixed in our hearts, the praetorians not only did not protect their emperor, but went so far as to murder that illustrious man. And now some fellow has disgracefully purchased the empire and its vast expanse of land and sea; as you have heard, he is hated by the people and no longer trusted by the disillusioned praetorians. 5. Even if they loved him and intended to support him, you outnumber them and are superior in courage. ”

“ I mean to be as cautious as I expect Caburus to be: there is no use making an attempt unless a really promising chance presents itself. If I see an opening I'll kill the monster myself, and I do not expect to need any help from anybody, except a little jostling in the crowd to increase the confusion. As rigged up in Praetorian uniforms we will be laughed at and indulged. Either in the noonday swelter or in the torchlit darkness it ought to be easy to pass from aping, mimicking and burlesquing Praetorians to personating and counterfeiting Praetorians. ”