previous next


MAGISTRA´TUS Magistratus is properly the abstract form of the concrete magister, but it comes to be used indifferently to indicate the office and the person who holds it. In the S. C. de Bacchanalibus we find magistratus side by side with magister, denoting the governor of a religious guild. In the later practice, however, only the word magister applies to lesser corporations; [p. 2.111]magistratus is commonly restricted to the person or office of the governors of the Populus Romanus, of the Plebs, and of the municipia and colonies. The powers of the municipal magistrates are discussed elsewhere [see COLONIA]; the following remarks apply to the magistrates of the populus and of the plebs.

Every such magistrate has coercitio, the power within his proper sphere of duty to compel the citizens by force of punishment to obey him, and to avenge any act which argues contempt of his magisterial authority (in ordinem cogere magistratum). He has likewise the power of addressing the people by word of mouth (jus contionis) and by written proclamation (jus edicendi).

The magistrates are grouped in colleges; there are two consuls, ten tribunes, and so forth. But these colleges do not, with very rare exceptions (see Liv. 9.46, 7), act as boards deciding by a majority of votes. Each individual magistrate is invested with the full powers of his college, and is qualified, if not interrupted by his colleagues, to act in all matters alone. A particular subdivision of duties (provinciae) may, however, be prescribed by the senate or people for the individual members of a college. This division is specially important in the case of the praetors at home and of the governors of the transmarine possessions of Rome. The first have particular departments of business assigned to them; the latter have particular localities in which they are to exercise their functions. When it may be a matter of dispute which of the equally qualified persons is to perform a particular act or series of acts, the question has to be settled by arrangement, by taking turns, or by the lot.

Magistratus Populi Romani.--Though the word seems never to be applied directly to the king, our authorities trace all magistracy back to the regal power. Pomponius, for instance (Dig. 1.2, 2, 14), begins his discussion with the words, “Quod ad magistratus attinet, initio civitatis hujus constat reges omnem potestatem habuisse.” At the institution of the consulship this power was put in commission. “Regio imperio duo sunto,” is Cicero's description of the office (de Leg. 3.3, 8); and Livy (2.1, 7) comments--“libertatis originem inde magis quia annuum imperium consulare factum est, quam quod deminutum quicquam sit ex regia potestate, numeres. Omnia jura, omnia insignia primi consules tenuere.”

The college representing the kingly power was modified by various additions and alterations; as, for instance, when a dictator was co-opted into it as a superior colleague, or praetors were created as inferior colleagues to the consuls, or when their place was filled by an interrex or by tribunes with consular power. Each one of these officials had the imperium: he possessed, like the kings, the right to command the individual citizen in peace and war [see IMPERIUM], and to be the president and mouth-piece of the sovereign corporation, the Populus Romanus. Further certain specialised functions were committed to assistants not invested with these plenary powers: such were the censors, curule aediles, and quaestors, besides the lesser officials, who collectively made up the vigintivirate. The more specific name for power (imperium) being denied to these, the generic term potestas serves as descriptive of their authority. Thus we may say at pleasure “consularis potestas” or “consulare imperium,” but only “censoria potestas.” To both classes belong the auspicia patriciorum, and all holders of these offices are magistratus patricii, whether they be personally members of the patrician order or not.

Messalla (Aul. Gel. 13.14) divides these auspicia patriciorum into greater and lesser, and the magistrates in like manner into majores and minores. The censor, from the practical importance of his office, ranks among the majores magistratus; but with this exception Messalla's division of greater and lesser answers to the division between those magistrates who have and those who have not the imperium. The greater magistrates receive their office from the populus assembled by centuries, the lesser magistrates from the populus assembled by tribes. What Messalla says is confirmed by Cicero's account (ad Fam. 7.30) of the proceedings of Caesar. When assembling the populus for the election of quaestors, he was “tributis comitiis auspica-tus” ; when in the course of the day he wished to elect a. consul instead, “centuriata habuit.” Messalla proceeds to point out, however, that the powers of magistracy are more formally and regularly (justius) entrusted by the subsequent passing of a Lex Curiata. All the magistrates with imperium are colleagues, and so their auspices may collide (turbant, retinent, vitiant, obtinent), in which case those of the superior override those of the inferior. In illustration of this we find that a praetor acting in the field in conjunction with a consul could not, though he had an imperium of his own, claim a triumph, because his imperium and his auspices were overborne by those of the consul (V. Max. 2.8, 2). It is certain that any of the magistrates cum imperio could in the same way overbear any of the minor magistrates. On the other hand, Messalla tells us that a magistrate may be “non ejusdem potestatis,” “non eodem rogatus auspicio” with another. In this case the two have not merely different provinciae or spheres for the exercise of their authority, but the authority itself is different; they are not colleagues, and no collision of their auspices is possible. Such was the censor in relation to the consul or praetor, and such by parity of reasoning would be the curule aedile in relation to the quaestor. The same principle obtains in the matter of intercessio. It is summed up in the words of Cicero (de Leg. 3.3, 6): “ni par majorve potestas prohibessit.” Magistrates non ejusdem potestatis cannot veto each other's actions.

The magistrates cum imperio alone had the jus agendi cum populo. The voice of the Roman people could be uttered only in answer to a question (rogatio) put to it by such a magistrate. This power could not be delegated in case of elections or of legislation; but when the people met to hear an appeal from the sentence of a magistrate in a criminal case, the consul or praetor might lend his auspices to an inferior (as, for instance, the quaestor), who could then preside and put the question. [See Varro, L. L. 6.91, “ad praetorem aut ad consulem mittas auspicium petitum;” and 93, “alia de causa hic [p. 2.112]magistratus (quaestor) non potest exercitum urbanum convocare.” ]

As all magisterial power is derived from the people, it follows that those magistrates who have the jus agendi cum populo must provide for the succession, not only in their own college, but in all the other magistracies. The censor or the curule aedile cannot submit the question of the choice of their successors to the people, but this must be done by the consul or praetor. The presiding officer is said rogare or creare the newly elected magistrate. Most modern writers (including Mommsen) hold that this is a relic of an ancient power of nomination or selection on the part of the magistrate, that the obligation to consult the people on the choice is of later origin, and that the primary notion of magistracy is that of a power passing from hand to hand through successive generations of officers. This opinion is, however, in direct contradiction to the belief of the Romans themselves, who represented the higher magistrates, including the king, as chosen from the first by the people; and the cases adduced in favour of the modern hypothesis seems inconclusive. The co-optation of the dictator is an exception, which is probably to be explained on the ground that he was to be appointed in emergencies when the delay necessary for a popular election might be dangerous. Nor is it safe to draw any conclusion from the fact that neither the Rex Sacrificulus nor the Pontifex Maximus was elected by the people. The Romans were evidently uneasy lest by abolishing the kingship they should have offended the gods, and it was not unnatural that, when severing the oversight of religion from the chief magistracy, they should have emphasised the partition of functions by committing the transmission of religious power to the Sacred College itself. Mommsen's theory necessarily leads him to believe that the interrex who reigned for only five days was entrusted with the enormous responsibility of imposing on the people a ruler for life. There is no need to accept the premises which lead to so improbable a conclusion. The unanimous evidence of the ancients justifies us in regarding the people as the fount of power, and in limiting the part of the magistrate in the creation of his successor to those sufficiently ample powers which belonged to him as the necessary convener and regulator of the assembly which had to elect.

Jurisdictio, the power of administering justice between the citizens, belongs in its full extent only to the magistrate cum imperio. The formal competence of every such magistrate to administer justice is recognised in the fictitious lawsuits necessary for manumissions, adoptions, and transfers of property (in jure cessio). The consul or even the pro-consul at the gates of the city may hold a court for such purposes. But all serious litigation at Rome is specially reserved as the provincia of one or other of the praetors. After the conquest of Sicily, that island was made the province of a special praetor, who exercised therein the fullest jurisdictio, and similar functions were assigned to the governors of districts subsequently annexed. Besides the full jurisdiction which goes with imperium, a limited jurisdiction in special cases belongs to the curule aediles, the decemviri litibus judicandis, and to the municipal magistrates. [See JURISDICTIO]

Criminal justice--that is, the punishment of heinous offences, supposed to endanger the state--falls likewise under the imperium. But the action of the magistrate in this sphere is early limited by the right of appeal to the people, when the punishment to be inflicted is serious. This right subjects the magistrate to the necessity of defending his sentence and to the possibility of having it reversed; it practically reduces him from a judge to an accuser. Such a situation was felt to be beneath the dignity of the superior magistrate; and accordingly we find that he habitually refrained from the exercise of any such powers, and allowed the task of condemning or accusing to devolve on his inferiors (at first probably his delegates) the duoviri perduellionis and the quaestors. By a curious combination of constitutional exigencies, the tribune may find himself with regard to the centuriate trial in the same position as the quaestor. If he has condemned a citizen to death, and is appealed against, his own (plebeian) assembly is, by the law of the Twelve Tables, incapable of hearing the case; he must therefore ask one of the magistrates cum imperio for a day of the Comitia Centuriata: see Liv. 43.16, 11, “Utrique censori perduellionem se judicare pronuntiavit (tribunus), diemque comitiis a C. Sulpicio praetore urbano petiit.” Whenever provocatio is suspended, as on the appointment of a dictator or on the decree of senate or people to constitute a special quaestio, the superior magistrate is seen as criminal judge, and inflicts death by virtue of his imperium. The most notable case is the proceeding against the Bacchanalians in B.C. 186, of which a full account is given by Livy (39.14-19).

A relic of the criminal jurisdiction of the consuls and praetors survived in their power to sharpen their coercitio by throwing citizens into prison. This was a consequence of their right of summons and seizure (vocatio et prensio) as a preliminary to trial. This right was not possessed by the inferior magistrates, who could only enforce their orders by seizing pledges or inflicting a small fine.

The senate is the consilium or authorised body of advisers attached to the chief magistrate. Accordingly only those magistrates of the Roman people who as possessors of the imperium represent the kingly office, can summon and consult the senate. This power is absent from the censor, the curule aedile, and the quaestor. These magistrates appear, however, no less than those cum imperio, to have been relieved during their term of office from the duty of giving advice as senators (suo loco sententiam dicere) to the presiding magistrate. On the other hand, they could, any of them, address an official statement to the senate (verba facere) regarding the matter in hand.

The office of the magistrate ceases immediately on the expiry of the period for which he has been elected. If he is present in the city (domi), his powers lapse with his office; but if he is absent on service (militiae), he is to continue at his post and exercise all powers until he is relieved by a successor. Meanwhile he is acting pro consule, pro praetore, or pro quacstore, [p. 2.113]as, the case may be. Such a necessity could hardly arise, while a campaign lasted only for a single summer. When in B.C. 326, during the Samnite War, it became desirable for the consul Q. Publilius Philo to remain at the head of his army for a second year, a special decree of the people to extend his command, though not strictly necessary, was held to be proper, and for some time this precedent appears to have been followed. By the time of the Second Punic War, however, it is recognised that a simple decree of the senate is sufficient for the prorogation of an existing command. It is otherwise of course when a command pro consule is conferred on a private man--as for instance on P. Scipio, when he went to Spain in B.C. 211. For this a law of the populus or the plebs is always necessary.

It may perhaps be counted as an exception to the rule of purely local division, that the pro-magistrate cannot preside at the meetings either of senate or people, even when these are held outside the walls. These are the exclusive prerogatives of the actual magistrates. The pro-magistrate is commonly confined, even more strictly than the magistrate in his year of office, to a special district as his provincia. The Lex Majestatis of Sulla particularly forbids him to overstep the bounds of that district. When he has handed over his province to a successor, his power is therefore in abeyance, but it is not extinguished till he enters the city gates. He still keeps his official title, and wears his official dress: he is still attended by lictors and axes, and exercises formal acts of jurisdiction. At a word from the senate he is authorised to stir up again his dormant imperium; and when the state is in danger, “those who are present with pro-consular command near the city” are included in the mandate which arms the magistrates against the enemy: see Caesar, Caes. Civ. 1.5, “dent operam consules, praetores, tribuni plebis, quique pro consulibus sint ad urbem, ne quid respublica detrimenti capiat.”

Magistratus plebis.--When the non-patrician Romans formed themselves into an exclusive corporation on the Mons Sacer in B.C. 449, their first act was to elect magistrates of their own; and these officers, the tribunes and aediles of the plebs, existed from thenceforth side by side with the magistrates of the Roman people. The resemblances and differences between the functions of the two kinds of magistrate produce some of the most curious complexities known to any constitution. The authority of the plebeian magistrates was from the first acknowledged (though somewhat grudgingly) by the whole community, inasmuch as the law of the state accorded to them the right absolutely to protect the private citizen against any action of the patrician magistrate. As the corporation of the plebs gradually assumed to itself the right to legislate on matters concerning the whole community, its officers became necessarily more and more magistrates of the Roman state. When by the Hortensian Law (B.C. 287) the decree of the plebs was formally placed on an equal footing of power with the decree of the sovereign populus, the reason for any distinction between the magistrates of the two corporations really disappeared. In the case of the plebeian aediles this distinction was practically abolished. Originally the subordinate assistants of the tribune and his instruments in giving effect to his duty of protection, the aediles of the later Republic were assimilated to the minor magistrates of the Roman people. Though still necessarily plebeians, and elected by the plebs, their powers and duties bore no relation to their original functions, but were precisely similar to those of their curule namesakes. This identity is best illustrated by the fact that Caesar divided the city into wards, each in charge of a single aedile, without any distinction between the two kinds. The plebeian (like the curule) aedileship gave the opportunity for conciliating the people by gifts and shows, and so paving the way of the candidate to the higher posts. In the ordinary career of a Roman statesman the office was a step in advance, after a man had served the tribunate and before he proceeded to the praetorship.

The position of the tribune in the later Republic is much more anomalous. As the ruling magistrate of his corporation he has the jus agendi cum plebe, which confers on him precisely the same powers of initiative in legislation as are possessed by the consul who puts the question to the populus. The senate likewise is assigned as a consilium of advisers to him as well as to the consul, and he has the same right of summoning it and eliciting its decrees. So far we have only a multiplication of the chief magistracy. But here the identity ceases. The tribune had not the essential attribute of the chief magistrates of the Populus Romanus, the imperium. He could neither command in war nor administer justice between the citizens. On the other hand, certain eminent prerogatives derived from the historical nature of his office survived. The “word of might that guards the weak from wrong” had been made effective by investing the person of the tribune with sacrosanctitas, and this sacrosanctitas could be used in attack as well as in defence. The coercitio of him whom it is death to resist must necessarily overbear all other authority. If the tribune thinks fit to throw the consul into prison or to drag the censor to the Tarpeian rock for execution (Pliny, Plin. Nat. 7.143), no one but another tribune can hinder him. In like manner the intercessio of the tribune transcends the rule that magistrates non ejusdem potestatis cannot interfere with one another. The veto of the tribune is absolute over the actions of consul, of praetor, and of censor, while these have no corresponding power over him. In case of collision the patrician magistrate must always yield to the sacrosancta potestas. Such powers would be nothing short of a legalised tyranny, were they placed in a single hand. As a matter of fact the great number of the tribunes, and the principle that each of them could hinder the action of his colleague, rendered these enormous powers practically harmless. In ordinary times the college of tribunes, divided against itself, excluded from military command, and incapable of action outside the city walls, possessed little influence or dignity, and was commonly the humble instrument of the senate, and a convenient check on any vagaries of the superior magistrates. (See Liv. 28.45; 45.21.) The survival, however, of so irrational an institution became eminently dangerous in times of revolution. In the hands of the Gracchi the [p. 2.114]tribunician power proved strong enough to over-bear the other elements of the constitution, and could be resisted only by violence and bloodshed. Under the control of Marius, of Pompey, and of Caesar, the same office afforded an effective support to the military chiefs against the senatorial government. After serving for a century the purpose of party strife or of individual ambition, the power of the plebeian magistrate, united at last with military and provincial command, became the basis of the despotism of the emperors. For their appointment, see NOMINATIO

(This article is in the main a summary of the first volume of Mommsen's Staatsrecht, to which the reader is referred for more detailed information.)


hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: