of exerting nearly all the executive power of the Consuls, received the administration of justice as his special province. As the city grew and litigation increased, more Praetors were added. The first had been appointed in B.C. 367; the second, who presently became charged with suits in which one or both of the parties did not enjoy Roman citizenship, dates from about B.C. 247. He came to be called Praetor peregrinus, while the original Praetor was described as the Praetor of the City (urbanus). The latter remained the head of the judicial system, and I shall therefore speak of the Praetor in the singular. Other Praetors were added, partly in order to act in the provinces, partly in order to undertake special kinds of jurisdiction. By the time of Trajan there were eighteen of them.

In the later republican period we may speak of the Praetor as being partly a Judge, partly a Minister of Justice who directed the general working of the Courts. It was his duty to issue when he assumed office a statement of the rules by which he intended to guide his judicial action during his year, as well as a table of the formulae in which applications ought to be made to him for the exercise of his functions. These rules were published in a document called the Edict. It contained a concise statement of the cases in which he would allow an action to be brought, and of the pleas which he would admit as constituting defences to actions. This statement did not purport to supersede the old actions and rules which had either come down as a settled part of the ancient customary law, or had been enacted by any statute of the popular assembly. The Praetor always held himself to be bound by statutes 1.

1 The Praetor, said the Romans, does not make law (Praetor ius facere non po test). Yet they also called the rules which emanated from him iura (see Cic. De Invent. ii. 22) and the whole body of rules due to his action was in later times described as ius honorarium, ius praetorium. Sometimes a right resting on ius is contrasted with one depending on the protection (tuitio) of the Praetor: Ulpian in Dig. vii. 4. 1. Those who put the Praetor's authority highest called the Edict lex annua, says Cicero, Verr. ii. 1. 42. This uncertainty of language corresponds to the peculiar character of these rules, which in one sense were, and in another were not, Law.

But his Edict added materially to the old actions and rules, incidentally modified them, ultimately did supersede many of them. He awarded remedies which the older law had not awarded. He recognized defences (e.g. in cases of fraud) which the old law had not recognized. He provided means of enforcing rights more effective than those which the old law had provided. As the later Romans said, he acted for the sake of aiding, or supplying the omissions of, or correcting, the old strict law, with a view to the public advantage 1.

Each Edict was valid only for the Praetor's year of office. Each succeeding Praetor, however, usually repeated nearly all the declarations that had been contained in the Edicts of his predecessors, though it often happened that a new Edict introduced some improvement in point of form and expression, or perhaps so varied, or added to, the announcements in the last preceding Edict as to introduce an improvement in substance, for when a Praetor thought that it was necessary to promise a new remedy by action, or to recognize a new plea, it was his duty to insert it. In this way the practice of the Courts was continually changing, yet each single change was so slight that the process was very gradual, hardly more rapid than that which has gone on, at certain periods in the history of English law, through the action of the Court of Chancery, or that which went on in the Court of King's Bench under Lord Mansfield. There was no permanent enactment of a new rule, for a Praetor's declarations bound himself only and not his successors 2. But as his promises were usually repeated by his successors, a Praetor when

1 'Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam.' Papinian in Dig. i. 1. 7. 2 His declarations did not originally, in strictness of law, bind even himself, and it was found necessary to enact, by a lex Cornelia of B.C. 67, that the Praetor should not depart from the statements of his Edict (ut praetores ex edictis suis perpetuis ius dicerent, quae res cunctam gratiam ambitiosis praetoribus qui varie ius dicere solebant, sustulit.' Ascon. in Cic. Pro Cornelio, 58.

The Edict regularly issued at the beginning of each year was called Edictum perpetuum, as opposed to Edictum repentinum, one issued for an emergency.

he promised a new remedy, practically created a new right, or enlarged and confirmed an old one.

To us moderns the function thus committed to a Magistrate seems a large function, and his power a possibly dangerous power. No modern constitutional State would vest such a power either in a Judge or in a Minister of Justice. But to the Romans the Praetor is (above all things) the representative of the Executive and Judicial Power of the State. He is the State embodied for certain purposes. He is something more than a mere minister, whom the people have chosen to serve them in a certain capacity. He represents the majesty of the State over against the people, and deals with them rather as a Ruler than as a Servant. Few nations have formed so strong and definite a conception of State power as the Romans did; and none, perhaps, expressed it so distinctly in the authority, very wide, very drastic, and yet eminently constitutional, which they entrusted to their great State officials. The conception was to them so dear, or so necessary, that even when the misdeeds of a monarch had led to the abolition of monarchy, they did not restrict the magisterial power itself, but divided it between two co-ordinate magistrates whose co-existence made each a check on the other; and when the powers of these two (the Consuls) were subsequently found to need limitation, they devolved upon other magistrates (the Tribunes) the right to step in and check the exertion in some particular instance of the consular power.

The Praetor, therefore, having (like the Consul) imperium (i.e. the power of issuing commands as an executive officer, and of compelling obedience to them by putting forth material force), is a stronger personality than the English Common Law Judge, and can act more boldly and more effectively. We hear of no demand. for a restriction of his functions, but only of a statute which checked arbitrary discretion by requiring him to administer the law in accordance with his Edict. More

over, while the English judge is, down till the Revolution, an official removable by the Crown, the Praetor has no one over him, and has, therefore, not only a more unfettered discretion in carrying out his judicial and quasi-legislative mission, but also a clearer sense of his duty to do so, because this is the function which the nation expects him to discharge. The English Judge is primarily a judge, appointed to pronounce a decision: the Prateor is also an executive magistrate, placed at the head of the whole judicial administration of what was originally a small community, with the duty of providing that the system works properly. His wider powers give him a sense of the obligation laid on him. to see that justice is duly done, that the system of procedure is such as to enable justice to be done, that wrongs for which there ought to be some remedy have some remedy provided against them; in short, that the law as a machinery for setting things right and satisfying the demands of the citizens is kept in proper order, with such improvements and extensions as the changing needs of the nation suggest. His business is not merely to declare the law but to keep the law and its machinery abreast of the time.

The functionary who in England offers the nearest analogy to the Praetor, an analogy which has been so often remarked that only a few words need be spent on it, is the Chancellor. The Chancellor of the fourteenth, fifteenth, and sixteenth centuries was the organ of the prerogative of the Crown on its judicial side, and as that prerogative was then very wide, he was thus invested with an authority half judicial, half administrative, not unlike that of the Roman magistrate. As it belonged to the Crown to see that justice was done throughout the realm, and the means for doing it provided, the Chancellor was expected and obliged to supply new machinery if the old proved inadequate, and this he did in virtue of an authority which, in its undefined width and its compulsive power, resembled the Roman im

perium. Accordingly when the development of the Common Law Courts stopped in the fourteenth century because the Common Law judges refused to go beyond the remedies which the Courts provided, and made only a limited and timid use even of their power of issuing new writs in consimili casu, the Chancellor went on. From the time of Edward the Third petitions to see right done, which had been previously addressed to the Crown, began to be addressed to the Chancellor, and the extraordinary range of his powers was expressed by the phrase that he acted in matter of the King's grace and favour, that is to say, he acted where the subject could not demand a remedy as of common right from the ordinary Courts of the land. Thenceforward the range of action of the Common Law Courts did not so much need to be extended, though a certain slight measure of development continued in them even as late as the days of Lord Mansfield, whose extension of the scope of the Common Counts for money had and received to the use of the plaintiff' has a faint flavour of praetorian methods. It was partly because the Common Law judges had halted that the Chancellor, if I may use a familiar expression, took up the running, and exerted the powers which the sovereign entrusted to him, and which, as keeper of the sovereign's conscience, he was held to be justified in exerting so as to provide fresh and efficient remedies for wrongs that defied either the rigid system of procedure or the feeble executive capacity of the Common Law Courts. During this period the Chancellor, though a judge, is also much. more than a judge, and it is as a great executive officer, clothed with the reserved and elastic powers of the sovereign, that he is able to accomplish so much. Yet his action is not so free as was the Praetor's, for he does not directly interfere with the pre-existing Courts. He may walk round them: he may forbid a plaintiff to use the judgements they give; but he cannot remould their methods nor extend their remedies. The Praetor,