ABROGA´TIO MAGISTRA´TUS
ABROGA´TIO MAGISTRA´TUS The deposition of
a magistrate from his office by any legal process was, strictly speaking,
unknown to the Roman constitution (Becker,
Rhein.
Mus. N. S., 4.293). The only legitimate termination of the
magistrate's power was his own abdication. But (1) it was in the power of a
superior magistrate to forbid an inferior one to exercise his official
functions (
vetare quicquam agere pro
magistratu): thus the dictator L. Quinctius in B.C. 458 suspended
the consul L. Minucius from his office (
Liv.
3.29,
2;
Dionys. A. R. 10.25); and. this action was followed by the
abdication of Minucius. (2) The people, by the exercise of its sovereign
legislative power, could put an end to a magistrate's tenure of office.
Thus, according to the tradition followed by Cicero (
Cic. Brut. 14,
53;
de
Off. 3.10, 40), and held by Schwegler (2.43, note 2) to be older
than that of Livy and Dionysius, one of the first two consuls was deposed
from his consulship (
Brutus ... collegae suo imperium
abrogavit). The right of the people to do this was never
challenged, and was admitted in terms by the Lex Cassia (cf. Ascon. p. 78),
ut quem populus damnasset cuive imperium
abrogasset
in senatu non esset. There are no
other instances of the
abrogatio of a consul,
except in the troubled times of the Civil Wars; e. g. Cinna (Vell. 2.20:
ex auctoritate senatus consulatus ci abrogatus
est), who refused to regard it, because the deposition proceeded
from the senate, not from the people. But there are two cases of the actual
abrogation: of proconsular
imperium (cf.
Appian,
Iber. 83; Asconius, p. 78), and two more in which it
was threatened (
Liv. 27.20,
21;
29.19,
6). The strict legality of the deposition of the tribune M. Octavius
by the people, on the proposal of Ti. Gracchus, was never called in
question, and Mommsen now withdraws the statement made in his earlier
editions that “deposition was a constitutional impossibility”
(cf.
Gesch. 2.88;
Röm. Staatsr. i.
pp. 512-3). See also
LEX
[
A.S.W]
