The History of Roman Literature: From the Earliest Period to the Death of Marcus AureliusCruttwell, Charles Thomas
Philosophy
The History of Roman Literature: From the Earliest Period to the Death of Marcus Aurelius
Cruttwell, Charles Thomas
Latin literature -- History and criticism
There had been, previously to this period, two praetors in Rome, the
_Praetor Urbanus_, who adjudged cases between citizens in accordance with
civil law, and the _Praetor Peregrinus_, who presided whenever a foreigner
or alien was concerned, and judged according to the principles of natural
law. Afterwards six praetors were appointed; and in the time of Antonius
they judged not only civil but criminal cases, except those concerning the
life of a citizen or the welfare of the state, which the people reserved
for themselves. It must be remembered that the supreme judicial power was
vested in the sovereign people in their comitia; that they delegated it in
public matters to the senate, and in general legal cases to the praetor's
court, but that in every capital charge a final appeal to them remained.
The praetors at an early date handed over their authority to other judges,
chosen either from the citizens at large, or from the body of _Judices
Selecti_, who were renewed every year. These subsidiary judges might
consist of a single _arbiter_, of small boards of three, seven, or ten,
&c., or of a larger body called the _Centum viri_, chosen from the thirty-
five tribes, who sat all the year, the others being only appointed for the
special case. But over their decisions the praetor exercised a superior
supervision, and he could annul them on appeal. The authorities on which
the praetor based his practice were those of the Twelve Tables and the
custom-law; but he had besides this a kind of legislative prerogative of
his own. For on coming into office he had to issue an edict, called
_edictum perpetuum_, [36] specifying the principles he intended to guide
him in any new cases that might arise. If these were merely a continuation
of those of his predecessor, his edict was called _tralaticium_, or
"handed on." But more often they were of an independent character, the
result of his knowledge or his prejudices; and too often he departed
widely from them in the course of his year of office. It was not until
after the time of Crassus and Antonius that a law was passed enforcing
consistency in this respect (67 B.C.). Thus it was inevitable that great
looseness should prevail in the application of legal principles, from the
great variety of supplementary codes (edicta), and the instability of
case-law. Moreover, the praetor was seldom a veteran lawyer, but generally
a man of moderate experience and ambitious views, who used the praetorship
merely as a stepping-stone to the higher offices of state. Hence it was by
no means certain that he would be able to appreciate a complicated
technical argument, and as a matter of fact the more popular advocates
rarely troubled themselves to advance one.
Public-domain text, read in full here on John Shaqi.
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