Praetor

Praetura

The elected praetor was a curule magistrate, 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. 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 imperium (legal powers and military command, respectively) 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. However, a consul or praetor could be taken away from his current duties at any time to head a task force, and there were many, especially military. Livy mentions that, among other tasks, these executive officers were told to lead troops against perceived threats (domestic or foreign), investigate possible subversion, raise troops, conduct special sacrifices, distribute windfall money, appoint commissioners and even exterminate locusts. Praetors could delegate at will. The one principle that limited what could be assigned to them was that their duties must not concern them with minima, "little things". They were by definition doers of maxima. 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.

Praetors and their duties

Republican

A second praetorship was created around 241 BC, more clearly separating this office from that of the consulship. 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.

Praetor peregrinus

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), by the time of 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.

Praetor urbanus

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. In the absence of the consuls, he was the senior magistrate of the city, with the power to summon the Senate and to organize the defense of the city in the event of an attack. He was not allowed to leave the city for more than ten days at a time. He was therefore given appropriate duties in Rome. He superintended the Ludi Apollinares and 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.

Additional praetors

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 Hispanic provinces were formed in 197 BC. The dictator Lucius Cornelius Sulla transferred administration of the provinces to former consuls and praetors, simultaneously increasing the number of praetors elected each year to eight, as part of his constitutional reforms. Julius Caesar raised the number 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 an instrument of imperial ratification. To take a very simplistic view, the establishment of the principate can be seen as 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 that 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.

Actions

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 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.

Quaestiones perpetuae

The Praetors also presided at the quaestiones perpetuae (which were criminal proceedings), so-called because they stood in constant session instead of being enacted as ad hoc proceedings, which were the norm in previous time periods. 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 it was easily avoidable by going into exile. In the late Republic, the public crimes were:

• Repetundae
• Ambitus
• Majestas
• Peculatus
• Falsum
• De Sicariis et Veneficis
• De Parricidis
• De Iniuriis

The last three were added by the Dictator Sulla in the early 1st century BC.

Outdoor actions

When the Praetor administered justice in a tribunal, he sat on a sella curulis, which was that part of the court reserved for the Praetor and his assessors and friends, as opposed to the subsellia, the part occupied by the iudices (judges) and others who were present. In court, the Praetor was referred to as acting e tribunali or ex superiore loco (lit. 'from a raised platform' or 'from a higher place') but he could also perform ministerial acts out of court, in which case he was said to be acting e plano or ex aequo loco (lit. 'from the flat ground' or 'from an equal/level place'). For instance, he could in certain cases give validity to the act of manumission when he was out-of-doors, such as on his way to the bath or to the theatre.

Later Roman era

By 395 AD, the 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.

Byzantine Empire

Like many other Roman institutions, the praetor (Greek: πραίτωρ, praitōr) survived in the Eastern Roman Empire.

Emperor Justinian I (r. 527–565) undertook a major administrative reform beginning in 535, which involved the reunification of civil and military authority in the hands of the governor in certain provinces, and the abolition of the dioceses. The Diocese of Thrace had already been abolished by the end of the 5th century by Anastasius, and its vicarius became the new praetor Justinianus of Thrace, with authority over all the former Thracian provinces except for Lower Moesia and Scythia Minor, which became part of the quaestura exercitus. Similarly, the governors of Pisidia and Lycaonia, as well as Paphlagonia (enlarged by merging it with Honorias) were upgraded to praetores Justiniani, and received the rank of vir spectabilis. In addition, in Constantinople he replaced the praefectus vigilum, who was hitherto responsible for security, by a praetor populi (in Greek πραίτωρ [τῶν] δήμων, praitōr [tōn] dēmōn), with wide-ranging police powers.

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 kritai, "judges") were placed at the head of the civil administration of a thema. This division of civil and military duties was often abandoned in the 12th century, when the posts of civil praitōr and military doux were frequently held in tandem. The provincial post fell out of use after the collapse of the Empire in 1204.

According to Helene Ahrweiler, Emperor Nikephoros II (r. 963–969) reinstituted a praetor in Constantinople, as a high-ranking judge. He is possibly identical to the Palaiologan-era post of the praitōr tou demōu, whose holders are attested until 1355. According to the Book of Offices of pseudo-Kodinos, compiled around the same time, the praitōr tou demōu occupied the 38th place in the imperial hierarchy, between the megas tzaousios and the logothetēs tōn oikeiakōn, but held no official function. His court uniform consisted of a gold-brocaded hat (skiadion), a plain silk kabbadion tunic, and a plain, smooth wooden staff (dikanikion).

Modern era

Classical Latin Praetor became medieval Latin Pretor; Praetura, Pretura, etc. During the interwar period the 71 counties of Romania were divided into a various numbers of plăși (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 five sectors.

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

The Italian-speaking Swiss canton of Ticino has pretori (singular: pretore) which is the chief magistrate (civil branch) of a district, heading a pretura (a court). The pretori are appointed by the canton's parliament.