MAGISTRA´TUS
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.)
[
J.L.S.D]
