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Praetor (Classical Latin: [ˈprajtoːr]) was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus (magistrate) assigned varied duties (per the historical period). The functions of the magistracy, the praetura (praetorship), are described by the adjective:[1] the praetoria potestas (praetorian power), the praetorium imperium (praetorian authority), and the praetorium ius (praetorian law), the legal precedents established by the praetores (praetors). Praetorium, as a substantive, denoted 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.[2]
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The Classical-era authors do not describe the events leading to the Praetor title origination; the title and the magistracy existed in the time of Titus Livius, the chief Republican historian. The writings of the Republican statesman and attorney, Marcus Tullius Cicero, explored the philosophy and uses of the term praetor.
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[3] and the Samnites by one.[4] 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.[5] 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:[6]
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[7] 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.[8] 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.[9]
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.
The praetorship was created in around 366–367 BC to take over part of the duties of the consuls.[10] The first man to be elected to the new praetura was the patrician Spurius Furius, the son of Marcus Furius Camillus,[11] 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 elected praetor was a magistratus curulis, exercised imperium, and consequently was one of the magistratus majores. He had the right to sit in the sella curulis and wear the toga praetexta.[11] 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).[10]
The potestas and imperium of the consuls and the praetors under the Republic should not be exaggerated. They did not use independent judgment 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." This principle of Roman law became a principle of later European law, Non curat minima praetor; that is, the details do not need to be legislated, they can be left up to the courts. 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.
In the year 246 BC the Senate created a second Praetura. There were two reasons for this: to relieve the weight 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.
By the end of the First Punic War, a fourth magistrate entitled to hold imperium appears, the praetor qui inter peregrinos ius dicit ("the praetor who administers justice among foreigners"). Although in the later Empire the office was titled praetor inter cives et peregrinos ("among citizens and foreigners," that is, having jurisdiction in disputes between citizens and noncitizens), in the 3rd century BC Rome's territorial annexations and foreign populations were unlikely to require a new office dedicated solely to this task. T. Corey Brennan, in his two-volume study of the praetorship, argues that during the military crisis of the 240s the second praetorship was created to make another holder of imperium available for command and provincial administration inter peregrinos. During the Hannibalic War, the praetor peregrinus was frequently absent from Rome on special missions. The urban praetor more often remained in the city to administer the judicial system.[12]
The praetor urbanus presided in civil 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 promulgated the Praetor's Edict. These Edicts were statements of praetor's policy as to judicial decisions to be made during his term of office. The praetor had substantial discretion regarding his Edict, but could not legislate. In a sense the continuing Edicts came to form a corpus of precedents. The development and improvement of Roman Law owes much to the wise use of this praetorial discretion.[13]
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 successfully transferred administration of the provinces to former consuls and praetors, thus increasing the number of ordinary praetors to eight. Julius Caesar raised the number to ten, then fourteen, and finally to sixteen.[14]
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 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[15] appointed a Praetor for matters relating to tutela (guardianship).
Roman court cases fell into the two broad categories of civil or criminal trials. The involvement of a Praetor in either was as follows.
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."[16] 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.[17]
During the time of the Roman Republic the Urban Praetor allegedly 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.[18]
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,[19] Ambitus,[20] Majestas,[21] and Peculatus,[22] which, when there were six Praetors, were assigned to four out of the number. Sulla added to these Quaestiones those of Falsum,[23] De Sicariis et Veneficis,[24] and De Parricidis[25] and for this purpose he added two or according to some accounts four praetors.
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.
By the time of the permanent division of the Roman Empire in 395, the praetors' responsibilities had been reduced to a purely municipal role.[26] 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.
Like many other Roman institutions, the praetor (Greek: πραίτωρ, praitōr) survived in the Eastern Roman (Byzantine) Empire. In the early 9th century, the praitōr was a junior administrative official in the themata, subordinate to the governing stratēgos. Gradually however, the civil functionaries assumed greater power, and by the late 10th century, the praitores (or krites, "judges") were placed at the head of the civil administration of a thema.[27] The division of civil and military duties was in essence reversed again in the 12th century, when the posts of praitōr and military doux were held in tandem. The provincial post fell out of use after the collapse of the Empire in 1204. In the administration of Constantinople, the imperial capital, however, the post of the praitōr tōn demōn, head of the police and subordinate to the city's eparch, is still attested as late as the mid-14th century.[27]
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 Pretură. Currently, this office has survived only in the Republic of Moldova, where praetors are the heads of Chişinău's 5 sectors.
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.
This article incorporates text by George Long from the article "Praetor" in the public domain Dictionary of Greek and Roman Antiquities by William Smith (1875), pp. 956–957.
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