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CHAPTER V.

THE ADMINISTRATION OF JUSTICE.

V.

civil order.

THE maintenance of right and peaceful order in the daily CHAP. intercourse of the members of a community; the removal and, if possible, the prevention of violence employed by Objects of one man against his neighbour; the protection of life and property from the internal enemies of society-this, together with the defence from external enemies, is the object for which every civil order of men has been first established, and to secure which men submit to restrictions and sacrifices of personal liberty which the organism of every state requires. As the military power is set up to secure protection from external aggression, and armies march out to meet foreign foes, so the sword of justice is entrusted to civil magistrates to preserve internal peace and to restrain those members of the community who violate it. The magistrates are furnished with sufficient power to assert the common feeling of justice, to resent all defiance of it, and to settle all disputes and differences of opinion among citizens; so that violence, force, and self-defence, which would be war on a small scale, are prevented. It is as necessary for a state to have its organization for internal jurisdiction as it is to have a military system to secure its independence from without; nay, the former is of the two the more essential element.

imperium.

These two functions of civil authority were originally Extent of designed for one end-a fact which was distinctly ex- the Roman pressed in Rome by the circumstance that the supreme authority of the magistrates, the imperium, embraced not only the military but also the judicial power over the citizens. By virtue of the imperium a magistrate issued

BOOK

VI.

Functions of prætors and consuls.

commands to the army, and by virtue of the imperium he sat in judgment over his fellow-citizens. Even the kings were military commanders and judges in one person, and after them the consuls likewise. In the name of the people they fought against the external as well as the internal enemies of society, both of whom were designated as perduelles. This was perceptible even in the outward form of procedure. The people were conducted to battle against either foe drawn up in the form of an army; for at home the assembly of centuries, at the request of a prosecutor, judged the disturbers of internal peace, and in the field it constituted the armed force of the state.

By the establishment of the prætorship (366 B.C.), the office of chief judge was separated as a distinct magistracy from the consulship.' Thus, as the organism of the state was developed by degrees, the two principal branches of the executive, formerly united, became distinct. We are informed that in the earlier period of the republic the chief magistrates were called not consuls but prætors. On the establishment of the new office it retained the old name of prætorship, and the chief magistrates were henceforth designated as consuls. The prætors, however, were

There can be no doubt that the dictator was competent to act as chief judge. Being invested with the imperium, he had of course the supreme military jurisdiction. By virtue of it he could not only punish all those who were placed under his command for insubordination, as Papirius Cursor did Fabius (vol. i. p. 389), but also other citizens whom he judged to be guilty of perduellio, as Cincinnatus did Spurius Mælius (vol. i. p. 216). No cases are reported to show that the dictators also exercised civil jurisdiction. But this is explained from the fact that the historians only related cases of general interest, when the dictatorship was resorted to in times of great public dangers. Mommsen (Röm. Staatsrecht, i. p. 112) thinks that the purely military magistrates never had civil jurisdiction.

2 Zonaras, vii. 19: τότε (449 B.C.) λέγεται πρῶτον ὑπάτους αὐτοὺς προσαγορευθῆναι, στρατηγοὺς καλουμένους τὸ πρότερον. Liv. iii. 55, 12: Iis temporibus nondum consulem iudicem, sed prætorem appellari mos erat. In the ancient law which required the prætor maximus to fix a nail every year in the wall of the temple of Jupiter (Liv. vii. 3, 5), the name prætor maximus designates the dictator, as chief military commander. In fact prætor, contracted from præ-itor, means nothing else. From it are derived the names of the porta prætoria of the Roman camp and of the cohors prætoria. See Mommsen, Röm. Staatsr. ii. 1, p. 70. Becker, Röm. Alterth. ii. 2, 89.

V.

far from engrossing the administration of law entirely. CHAP. Every magistrate continued within the range of his functions to exercise the judicial authority necessary to enforce his administrative decrees, and he was bound to see to the execution of those laws and regulations which came under the control of his department. For this purpose every magistrate was empowered to impose punishments and to enforce obedience to the orders which he issued in accordance with the established laws, and with a view to securing their execution. Thus the consuls continued to exercise military jurisdiction over the soldiers in the field, the ædiles took measures against those offenders who violated the police regulations with regard to markets and public domains. But the superintendence of ordinary, civil jurisdiction was after 366 B.C. in the hands of the prætors, and they are to be looked upon as the magistrates who gave a voice, reality and life to all existing laws, written as well as unwritten.

beians

When the prætorship was established (366 B.C.) the The pleconsuls naturally ceased to exercise the functions of and the judges, at least in the department of civil law; military prætor ship. law, of course, was not affected by the change. It was the intention of the patricians that the plebeians who could now be elected to the consulship should remain excluded from the jurisdiction, and it was to gain this end that the prætorship was established. The exclusion of the plebeians from judicial functions continued for a whole generation till 337 B.C.; but though there seemed now to be no reason for reserving judicial authority to the prætorship, the division of military and judicial functions between the consuls and the prætors which had become a custom during the preceding period, from 366 to 337 B.C., remained permanent.

nia and

By the establishment of the prætorship the depart- The insig ment of justice had become independent of the general business political and military administration. Nevertheless the of the original unity of the prætorship and the consulship can still be traced in many respects. The prætor was always

prætors.

BOOK

VI.

Numbers of the prætors.

looked upon as the colleague of the consuls.' He was elected in the same manner as the consuls by centuriate comitia, and, moreover, under the same auspices. He was furnished with the imperium, had lictors and fasces. He represented the consuls in town by assembling the senate, conducting its proceedings, executing its decrees, receiving the reports of officers employed abroad, and laying them before the senate, by negotiating with the ambassadors of foreign states, and by summoning assemblies of the tribes, not only for the election of inferior magistrates, but also for purposes of legislation. The superintendence of religious festivals was also entrusted to the prætor as well as the duty of watching over the purity of religion, a duty which one would think ought to have been entirely in the hands of the pontifices. Lastly, the prætor also sometimes undertook the conscription of recruits, and was entrusted, like the consuls, with military commands.

Up to the time of the first Punic war one prætor only was annually elected. Then a second was added to conduct the jurisdiction between citizens and foreigners. A distinction was now made between the city prætor (prætor urbanus), who was always looked upon as having a higher dignity, and the foreign prætor (prætor peregrinus). On

The prætor was considered to be the colleague-though of lesser rank (collega minor)—of the consuls. Gellius, xiii. 15, quoting Messala's words: Prætor, etsi collega consulis est, etc. . . . quia imperium minus prætor, maius habet consul. The prætor could act for the consul, but not in all matters: for instance, he could not conduct the elections in the comitia centuriata.

2 The number of fasces which the prætors were entitled to exhibit was six, whence the Greek designation of the office, é§aπéλekus ȧpxý, is derived. This number was restricted to two within the precincts of the city by a Lex Plætoria. See Becker, Röm. Alt. ii. 2, p. 188. Mommsen, Röm. Staatsr. i. p. 305.

3 Compare the burning of the pretended books of Numa by the prætor Petillius, 181 B.C. Vol. i. p. 33.

4 Liv. ep. 19: Duo prætores tum primum creati sunt. Pomponius, De Orig. lur. 28: Post aliquot deinde annos, non sufficiente eo prætore, quod multa turba etiam peregrinorum in civitatem veniret, creatus est alius prætor, qui peregrinus appellatus est ab eo, quod plerumque inter peregrinos ius dicebat. The title prætor peregrinus was a contraction of the fuller designation first in use: Prætor qui inter cives et peregrinos ius dicit. Mommsen, R. Staatsr. ii. P. 178.

the final establishment of the two provinces of Sicily and Sardinia, probably 227 B.C., two new prætors were appointed to superintend the regular government of those provinces, and still later on two more were added for the two provinces of Spain. The number of annual prætors now amounted to six, and so it remained until the legislation of Sulla.

CHAP.

V.

tors and

As the prætors had not alone the functions of chief The præjudges, but shared with the consuls all the higher branches private of the administration, a twofold difficulty arose, which, if judges. the judicial system of the Romans had at all resembled ours, would have made them unfit to preside over the administration of justice. The multiplicity of various administrative duties would have absorbed too much of their time, and it might have made it hard for them to preserve that independence and impartiality which befit the judicial character. The Romans grappled with both these difficulties in a most effective manner; they left to the judicial magistrate merely the task of expressing in the technical language of the law the questions at issue between the litigants. The case was then tried and determined, not before the prætor, but before private judges nominated by him with the assent of both parties. There was a great advantage in this division of the legal proceedings in two parts-those that were carried on before the prætor (in iure), and those that took place before the actual judge (in iudicio.) On the one hand, it secured to the proceedings judicial accuracy and precision, for the prætor, in determining the form of the suit, took care that the technicalities required by the law were observed; and, on the other hand, by employing non-professional men as judges, it preserved a constant agreement between the judicial decision and the popular standard of substantial justice. Thus ample provision was made for freedom of action within fixed rules of the law, and for obtaining formal as well as substantial justice.

In the earlier ages of the republic, legal actions could Prætorial be brought only in certain prescribed forms called legis formulae.