Magistrātus
at Rome, designated alike the office and the office-holder, the magistracy and the
magistrate.
I. The Republican Magistrates. In the widest sense the term
magistratus included all the governmental officers of the State, elected and
appointed, civil and military. In a narrower sense it was restricted to the officials elected
by the Roman people, excluding the promagistrates (proconsuls, propraetors, etc.), whose
authority rested on decrees of the Senate, and the subordinate officers with delegated powers
who were appointed by the magistrates. In the narrowest and most usual
sense the term was not extended to include the subordinate military officers (
tribuni militum) or the city officials below the rank of quaestor (
vigintisexviri, curatores, etc.), in spite of the fact that these were elected by the
people. On the other hand the dictator or
magister populi and his
lieutenant, the
magister equitum, although not elected, were always
regarded and described as magistrates.
1.
Historical Development. In the early Republic the only regular or ordinary
magistrates were the consuls and the quaestors; the only extraordinary magistrates the
dictator and his lieutenant. The tribunes and aediles of the plebs, officials whose right and
duty it was to protect their order against the regular magistrates, were not regarded as
magistrates until the struggle between the orders had come to an end. The
decemviri legibus scribendis (B.C. 451-449) and the military tribunes (B.C. 444-367),
who for a time replaced the consuls and exercised consular powers, were regarded as
magistrates; and so also were the censors, praetors, and curule aediles, officials who were
first elected during or at the close of the conflict between the orders. With the termination
of this conflict and the recognition of the plebeian tribunes and aediles as representatives
of the whole people, the list of magistrates, as the term was commonly employed, was closed.
For fuller description, see the special article upon each magistracy. For the promagistracy,
fully developed only towards the end of the Republic, see
Provincia.
From the period of the conflict between the orders dates the division of magistracies into
“patrician” and “plebeian.” In the later Republic the
term patrician magistracy was merely an historical reminiscence; it designated the offices
from which the plebeians had formerly been excluded. The term plebeian magistracy, on the
other hand, continued to express a fact; the offices of tribune and of plebeian aedile were
never thrown open to the patricians.
2.
The Relation of the different Magistrates to each other was not
determined, at Rome, by assigning to each office special and distinct powers and duties; nor
were the different magistrates protected against each other's interference. The earliest
magistrates, the consuls, held an undifferentiated complex of military, judicial, and
administrative powers; and the creation of new magistracies was not at first accompanied
(except in the case of the censors) by any logical separation of these powers. The trend of
development, especially in the later Republic, was towards a division of
provinciae or spheres of power; but the separation never became complete. Powers of
interference were so general as to amount to a fundamental principle of the
constitution—a principle which found its extreme expression in the tribunate.
The Romans themselves classed their magistrates not according to the kind of power, but
according to the degree of power, which each exercised. Their term for general power was
imperium. The dictator and his lieutenant, the consuls and the praetors, all
had imperium. The consular imperium was
minus as regarded the dictator
and his lieutenant,
maius as compared with that of the praetors. The
other magistrates (censors, tribunes, aediles, quaestors, etc.) had not imperium—i.
e. their powers were not general, but special. These, therefore, strictly speaking, were all
lower or lesser magistrates (
magistratus minores). The censors,
however, by reason of the importance of their duties, were regularly classed among the
magistratus maiores; and so also, on more technical grounds, were the curule
aediles.
Maior potestas. In principle, any magistrate with imperium might issue
commands and prohibitions to any magistrate without imperium. The exceptions to this rule were
as follows: neither the tribunes nor the censors were subject to the commands or prohibitions
of the magistrates with imperium; and the tribunes might intervene negatively, by
prohibitions, against the acts of all magistrates except the dictator, his lieutenant, and the
censors. The exceptional position of the censors was due to their possession of a distinct
field of duties. They had no occasion to interfere with other magistrates, and no other
magistrates were permitted to interfere with them. The peculiar position of the tribunes was a
survival from the period of the conflict between the orders. Negatively the tribunes had
maior potestas as against the consuls; but no Roman would have so expressed
it, for the Romans meant by
potestas power to act rather than power to
prevent.
In principle, again, a magistrate with
maius imperium might issue
commands to a magistrate with
minus imperium; so that a dictator might
command and restrain a consul, and a consul might similarly direct or check a praetor.
Par potestas. Further possibilities of interference resulted from the fact
that every magistracy except the dictatorship was held by two or more persons. Between such
colleagues there was, in principle, no division of power; each possessed all the powers of the
office. Each, therefore, might act alone, and without regard to the views or wishes of his
colleague or colleagues; and if they remained passive, his act was valid and effective. But if
a colleague stepped in (
intercessit) and forbade the act, then equal
power stood opposed to equal power and the result was a deadlock. This was true not merely as
between two colleagues, but also when a larger number held the same magistracy; majority rule
was not recognized; the negative will of one was as powerful as the positive will of any
larger number. A veto, therefore, could not be vetoed—a rule which was of peculiar
importance in the tribunate. In that body one tribune could prevent the other nine from doing
any positive act—e. g. from presenting a bill to the people; but nine tribunes could
not prevent one from vetoing the act of a consul or other magistrate.
Provinciae. In principle, therefore, the positive powers of each magistracy
could be exercised only when the colleagues were of one mind; and this unanimity was necessary
for each single act. In fact, however, some division of power, by agreement or by lot, was
customary from the earliest period of the Republic (e. g. one consul sometimes took the field
with an army while the other governed the city); but it does not appear that in the early
Republic any such division of the field of consular duties was made for the year. The
assignment to a single magistrate of a distinct field of power for his full annual term
apparently dates from the establishment of the praetorship. The praetor was not simply a
judicial officer, nor was his authority limited to the city; but by force of constant custom
civil jurisdiction within the city became his peculiar
“province.” When a second praetorship was instituted, B.C. 242, a division
of the judicial field became usual; but the assignment to each praetor of his special
competence was made after election and by lot. The same system prevailed when the number of
praetors was successively increased to four, six, and eight, and when such distinct functions
as the government of subject provinces and the presidency of special criminal courts (
quaestiones) were attached to the office. No Roman was ever elected to a
special praetorship; he was simply elected praetor, and his special duties were determined by
lot. The same system was extended to the quaestors, and gradually, in the later Republic, to
the consuls. For some time after the establishment of the city praetorship the consuls acted
jointly. They even took the field together, the supreme command alternating day by day. But as
foreign wars became more numerous they began, often by the advice of the Senate, but
technically, in every case, by agreement, to divide the legions and the field of military
operations, and to draw lots for their respective armies and “provinces.”
The Senate indeed might recommend or the people decree the assignment of a particular campaign
or territory to a particular magistrate
extra sortem; but this was
unusual.
From the fact that all magistrates of equal rank were colleagues with equal powers and that
the division of functions here described was primarily a
de facto rather
than a legal division, it followed, in principle, that either consul could interfere with the
other in the field of military operations, and that any praetor could intercede against the
act of any other praetor in the city. Such interference was practically impossible outside of
the city, if different fields of activity had been assigned to the consuls, because of the
rule that intercession must be made in person; and within the city it was regularly excluded
by custom (but see Cicero,
Verr. i. 46, 119).
3.
Powers of the Magistrates. The imperium conferred upon the higher
magistrates was, in principle, the same sort of power that had been exercised by the kings
(
imperium regium). It was primarily military power (
imperium militiae), and was understood to include all governmental power not
distinctly withheld by custom or law. Special limitations were first imposed in the field of
justice, criminal and civil. The royal power of capital punishment has been practically
annulled, according to Roman tradition, by the recognition of a right to appeal to the
assembly (
provocatio); and in the early Republican period this power
passed wholly to the people, the magistrate retaining only the power to investigate and
accuse. The power of the magistrates to fine was also limited by law. Civil cases were
regularly referred, for decision, to a private
iudex or
arbiter, or a board of elected
iudices. All these limitations,
however, were confined to the city; and the restrictions afterwards imposed upon imperium out
of the city (e. g. right of appeal in capital cases) were less extensive. Outside of the city,
moreover, the magistrates with imperium were freed from the interference of the tribunes. The
Romans accordingly came to distinguish
imperium militiae from
imperium domi, the complete power exercised beyond the city limits from the
restricted power exercised within the city. The dictator alone had
imperium
militiae
within the city—i. e. by the appointment of a dictator the city was placed
under martial law.
Practically, of course, the governmental power of the higher magistracy was lessened by the
multiplication of magistrates, by their short terms of office, and by their accountability to
the people after the expiration of their terms. The power of the single magistrates was also
practically diminished, in the later Republic, by the assignment of special fields of action
to special magistrates; but in spite of all these facts, no magistrate clothed with imperium
was ever regarded as an officer of special, designated powers. Imperium was always, in theory,
general power; and every magistrate with imperium had, as against the people, all powers not
legally denied him. The consuls, by virtue of their higher imperium, had residuary
governmental power, not only as against the people, but also as against the magistrates with
lower imperium and those without imperium—i. e. a consul could do whatever law and
custom had neither forbidden to him nor assigned to the exclusive competence of another
magistrate.
Special powers included in imperium, many of which were exercised also by
magistrates without imperium, were as follows:
1.
Ius agendi cum populo—i. e. the right of summoning and presiding
over the meetings of the people (
comitia centuriata), submitting
proposals to them, causing a vote to be taken and announcing the result. Whether the business
of the meeting was legislation, criminal justice, or the election of magistrates for the
ensuing year, the initiative was wholly in the magistracy. The magistrates determined the
form of a bill and accepted or rejected proposed amendments. They decided whether accusation
should be brought against a person suspected of crime, and what penalty the people should be
asked to impose. They submitted the list of candidates to be voted for, and no names could be
brought before the people without their assent. This
ius agendi cum
populo belonged exclusively to the magistrates with imperium. The tribunes, however,
had similar control over the meetings of the plebeians; and when the
concilia
plebis had developed into the
comitia tributa and had obtained
concurrent powers of legislation, a limited criminal jurisdiction and the right of electing
the lower magistrates, the
ius agendi cum plebe gave the tribunes an
initiative similar to that of the consuls and praetors. The analogous right of summoning the
Senate and obtaining an expression of its opinion, originally an exclusive right of the
magistrates with imperium, was also extended to the tribunes. In the field of legislation the
power of the tribunate thus became legally equivalent to that of the magistrates with
imperium. Practically it was greater; for if a consul or a praetor proposed a bill to the
popular assembly or a resolution to the Senate, the tribunes could veto the proposal and thus
arrest legislative action, while they themselves were not subject to such interference from
the other magistrates. It is therefore not surprising that the most important laws of the
later Republic were
plebiscita proposed by the tribunes.
2.
Ius edicendi. The people alone could establish a law (
lex); but all magistrates had power to issue commands and prohibitions (
edicta, interdicta) and means of punishing disobedience. Their ordinances, therefore,
had the force of law (
legis vicem), at least during the terms of the
magistrates who issued them. In principle there was nothing to prevent a
magistrate from invading by his edicts the field of general legislation. In the later
Republic the development and the reform of the private law were chiefly accomplished by the
edicts of the praetors, and important contributions to the law of sale were made by the
aediles. As a rule, however, the ordinances of the magistrates were not intended to override
the general law, but to secure its observance; and the edicts and interdicts of each set of
magistrates were commonly confined to that sphere of administration which law and custom
allotted them.
3.
Ius coercendi. The means by which the magistrates enforced obedience to
their commands were as follows: (
a) prensio, arrest; (
b)
in vincula ductio, imprisonment; (
c) verberatio, scourging; (
d) multae dictio, imposition of a fine; (
e) pignoris
captio, seizure of movable property. All of these powers were included in imperium; the
second and third were accorded only to magistrates with imperium. Imprisonment ordered by a
magistrate was probably limited to his term of office; from a sentence of scourging
in urbe a
lex Valeria authorized an appeal to the people. The
power to arrest was held by the tribunes and by the censors. The powers of fining and of
seizing property were apparently exercised by all the magistrates, and constituted the
ordinary and normal method of coercion. That it was a very ancient method is shown by
numerous Aryan analogies, and by the fact that among the Romans fines were originally levied
in sheep and oxen. The power to fine was first limited by the rule that the fine must not
exceed the half of the estate of the delinquent; later laws (
Aeternia Tarpeia, Menenia
Sestia [?]) confined
multae dictio to a definite maximum (two
sheep and thirty oxen; two sheep and five oxen. For an ingenious explanation of these
numbers, see Karlowa, pp. 167- 169). The magistrate who wished to fine beyond the legal
maximum had to obtain the consent of the assembly (
multae irrogatio). By
the
lex Iulia Papiria money fines were introduced and a pecuniary maximum
substituted, the sheep being reckoned at ten as, the ox at one hundred.
Pignoris
captio, like imprisonment, might be employed to secure the payment of a fine; but it
was often (and perhaps originally) used as a milder means of constraint, the property being
restored to the owner if he promptly purged himself of contempt and subjected himself to the
commands of the magistrate.
The fact that the tribunes could arrest (
prendere) other magistrates,
while the
leges sacratae protected them against all coercion, was the
key to their peculiar position in the Roman State.
4.
Auspicia. Before taking any important step, it was the right and the duty of
the magistrates to ascertain whether the act in contemplation was favoured by the gods. (See
Augur.) The magistrate who acted without proper
auspices, or in defiance of unfavourable auspices, took the risk of punishment at the end of
his term; and if his act was of a legal nature (e. g. the calling of
comitia), it was the right and duty of the Senate, after obtaining the expert opinion
of the augurs, to rescind the act and annul its results (e. g. the passage
1
of a
lex or the choice of magistrates). Auspices were regularly
taken, at least in the earlier Republic, by the augurs; but the answer of the gods, as
interpreted by these priests, referred to the inquiry of the magistrate at whose instance the
auspices were taken. It was, of course, possible that the gods should be consulted on the
same matter by different magistrates, and that different answers should be obtained. The
result was then determined by the relative authority of the magistrates:
maiora auspicia (i. e. auspices taken at the instance of a magistrate with
maior potestas) overrode
minora. As between colleagues
with
par potestas, unfavourable auspices prevailed over those of a
favourable character.
It is a plausible hypothesis that in the early Republic, when the entire constitution had a
sacral colour, the doctrine of
maior and
par
potestas was worked out by the priests in the form of a doctrine of auspices. It
accords with this theory that the lower patrician magistrates were under the auspices of the
higher, and that the non-magistrate, who exercised delegated powers, was said to act under
the auspices of the magistrate who appointed him.
4.
Responsibility. The lower magistrates, as we have seen, were generally
subject to the control of the higher, and the higher magistrates to the negative control of
the tribunate; but the magistracy, as a whole, was not subject to the direct control of the
people, or even to the control of the law. It enjoyed regal irresponsibility. During their
terms of office the higher magistrates could not be made defendants in civil actions (
in ius vocari), nor could criminal proceedings be instituted against them.
In the later Republic magistrates were occasionally deposed by a vote of the assembly which
had created them, but such action was contrary to the spirit of the constitution.
An indirect control of a moral character was exercised by the
consilia
of the magistrates (see below) and by the Senate (q. v.); and a very strong indirect control
lay in the unlimited responsibility of the magistrates after their terms of office had
expired. Not only did they then become liable to ordinary civil and criminal proceedings, but
they might be punished by the people on purely political grounds.
5.
Expenses. The republican magistrates received no pay; the technical term
for office was
honour; but they were not expected to waste their
substance in the service of the State. They were provided with an ample force of paid
assistants and attendants. (See
Apparitores;
Scribae.) If their duties called them out of the
city, they received a liberal outfit from the treasury, and were entitled to transportation
and sustenance
sumptu publico. What they could not obtain by requisition
from the subjects of Rome, they paid for; and for such outlays they were reimbursed from the
treasury. In the later Republic it was not unusual to grant round sums by way of allowance
for expenses, without requiring any account to be rendered.
6.
Insignia, attendants, etc. The quasi-royal position held by the
magistrates was strikingly expressed in the ceremonial and formal distinctions accorded them.
The years were designated by the names of the consuls. The higher magistrates were
accompanied, within and without the city, by numerous public attendants. Before the highest magistrates, those clothed with imperium, marched lictors, bearing
the symbols of punitive power. When a magistrate approached, the citizens rose from their
seats, dismounted from their horses, descended from their carriages. The lower magistrates
observed the same respect towards those of higher authority. Public business was transacted
by a seated magistracy in the presence of a standing people. Magistrates who acted singly had
chairs or stools (
sellae); those who, like the tribunes, acted
collectively, as a board, sat on benches (
subsellia). The higher
magistrates had stools of a special pattern (the
sella curulis), and
their garments were distinguished from those of the ordinary citizens. On ceremonial
occasions ex-magistrates were permitted to resume the distinctive apparel of their office,
and it was ostentatiously associated with their memory by their descendants (
ius imaginum). For details, see
Apparitores; Insignia.
7.
Consilia. It was a principle of Roman law, private and public, that he
who exercised power over others should not act unadvised. It was equally a principle of the
law that advice was not binding. The power to act was not impaired by the dissent of
advisers, nor did their assent diminish or divide responsibility.
The Senate, which had been the council of the kings, was also, in a broad sense, the
council of the whole higher magistracy; but each magistrate had a special
consilium. This always included any lower magistrates who were assigned to the same
“province,” or field of administration, and the principal assistants or
deputies selected by the magistrate himself; but it also included persons chosen by him as
advisers simply. The choice was limited, by custom, to the senatorial and equestrian orders.
It was often based on personal friendship, but chiefly on the reputation of the persons
chosen for knowledge and experience of affairs. In the administration of justice the urban
and peregrine praetors and the provincial governors were regularly assisted by the counsel of
the most eminent Roman jurists.
8.
Election, terms, etc. All the magistrates, except the dictator, were
elected (
creati) by the people; the higher magistrates, including the
censors and curule aediles, by the
comitia centuriata; the tribunes,
plebeian aediles, quaestors, vigintisexviri, curatores, and military tribunes, by the
comitia tributa. All except the censors were elected annually; the censors
every fifth year. All were elected during the year preceding their assumption of office, the
magistrates in office (consuls, praetors, or tribunes) summoning and directing the
comitia in which their successors were chosen. The election of tribunes took
place in July; that of the other magistrates later in the year. See
Comitia.
The term of office, except in the case of the dictator and in that of the censors, was one
year. The dictatorship was limited to six months. The censors originally held office until
their work was done; later, the rule was established that their work must be done in eighteen
months. The annual terms, in the early Republic, did not begin at any fixed date; in case of
abdication or death of both consuls, their successors were chosen, not for the residue of the
term, but for a full year. In the later Republic the practice was changed; at the close of
the third century B.C. the official year began on the 15th of March; in the second
century it began on the 1st of January. The quaestors, however, took office December 5th, and
the tribunes December 10th.
Lex curiata de imperio. According to Roman tradition, the king-elect had no
imperium until it was granted him by a special law. Under the Republic the consuls and
praetors, at the beginning of their terms of office, were obliged to summon the old patrician
assembly (
comitia curiata) and obtain from it a similar grant. The
necessary law seems always to have been voted as a matter of course; and in the late Republic
its adoption was a singularly empty form, the
curiae being represented
by lictors. At some intermediate period the theory that a formal grant of power should follow
election and accompany the assumption of office was extended to some of the officials without
imperium—e. g. a
lex curiata was regularly passed for the
benefit of the quaestors. In the case of the censors, a law authorizing them to enter upon
the discharge of their duties was voted by the centuriate assembly. No
lex
curiata or other confirmatory law was ever passed in the case of the plebeian
magistrates.
9.
Eligibility （
ius honorum). The power of the
magistrates to strike unfit persons from the list of candidates could never have been
exercised on purely political grounds without serious risk of subsequent punishment; and in
the course of the republican period the grounds of exclusion were defined, by custom or
statute, with considerable exactness. Non-citizens, lunatics, and persons afflicted with
serious bodily infirmities were, of course, excluded; so also were women. Condemnation for
political offences (and for ordinary crimes and torts when the condemnation carried with it
infamia) operated as a bar to office; and it lay in the power of the
magistrate to exclude those whose occupations made them infamous. Freedmen and their sons
were ineligible, and originally their grandsons also; but in the later Republic the grandsons
were eligible. Tradesmen were regularly excluded, trade on a small scale being regarded as an
illiberal occupation.
At different periods in the history of the Republic candidacy for office was made
conditional on the previous performance of military duty, upon the observance of a definite
order of advancement with intervals between the different offices, and upon the attainment of
certain age limits. For details, see
Honores.
Re-election. As early as B.C. 342 a plebiscite forbade re-election to the
same office until ten years had elapsed; but from this rule frequent dispensations seem to
have been granted. Re-election to the censorship was absolutely forbidden. In the year B.C.
151 the same rule was established for the consulate, but it was abrogated seventy years
later.
10.
Vacancies and Representatives. The fact that every magistracy was held
by a number of persons, each of whom possessed all the powers of the office, and the further
fact that the consuls possessed residuary governmental power, excluded the assumption that a
vacancy was created by the death or resignation of any single magistrate. Even when a
distinct field of administration had been allotted to such a magistrate, his duties could be
assigned to a colleague or assumed by one of the consuls. Cases even occurred where the duties associated with one magistracy were temporarily assigned by the
Senate to another (e. g. duties of an aedile to a praetor).
The death or abdication of both consuls (if at the time there was no dictator) meant more
than a mere vacancy in the consular office: it meant the temporary disappearance of the
ordinary government. By the sacral tradition praetors, curule aediles, and even quaestors
were bound to resign their offices; the auspices under which they held their respective
positions were extinguished, and it was necessary to institute a new administration with new
auspices. The situation was the same as that produced in the royal period by the death of the
king: there was an
interregnum. As in the royal period, the auspices
were with the Senate, and the Senate designated the temporary holders of supreme
power—one
interrex after another, each holding for five
days—until the centuries could be assembled and new magistrates elected. As soon as
a single consul was chosen, the
interregnum was at an end. The
interregnum exercised no influence upon the plebeian magistrates, for they
were not under the same auspices.
In case of the simultaneous absence from the city of both consuls, it was customary, in the
early Republic, for them to appoint a temporary governor. See
Praefectus Urbi.
II. The Republican Magistrates under the Empire. According to the
official theory, promulgated by Augustus and accepted by his successors, the establishment of
the
principatus left the republican constitution intact, and in the
early Empire republican forms were scrupulously observed. The magistrates were elected,
during the reign of Augustus, by the people; under Tiberius and his successors they were
“created” by the Senate and “announced” in the
popular assembly. Under both systems they were selected by the
princeps,
and however independent they might be in theory, in fact they were unable to cross the
imperial purposes. They were not, however, the real agents of the imperial government. The
emperors preferred to exercise the more important powers of sovereignty through officers whom
they appointed openly and directly, and whose authority was theoretically as well as actually
a delegated authority. The real officials of the Empire were the prefects and legates of
Augustus. The republican magistrates were loaded with honours, but they were quietly
deprived, from the start, of all their political powers and confined to the exercise of
judicial and administrative functions; and, later on, these functions also were gradually
absorbed by the imperial officials—police powers and criminal justice first, minor
administrative duties and civil jurisdiction last. The development of the new official
hierarchy was practically completed in the second century. The republican magistracies became
mere titles, earned by heavy outlays for the amusement of the people. In this form they
continued to exist throughout the principate, and were even transferred to the Eastern
Empire. Allusions to the tribunate occur in the fifth century; and as late as 541 an
“Oriental consul” was elected at Constantinople, and for a quarter of a
century the years were officially dated from his consulate.
III. Municipal Magistrates. With the development of
self-governing colonies and the extension to allied and subject cities of Roman citizenship
and municipal autonomy, there appeared, at the close of the republican period, a
municipal magistracy closely modelled on that of Rome. (See
Municipium.) Under the principate, this system, first worked out for
Italy, was gradually extended throughout the Empire, until the municipal magistrates became
everywhere the regular organs of local government. In the legal literature of the Empire,
therefore,
magistratus regularly refers to the municipal magistracy, the
titular dignitaries of Rome being distinguished as
magistratus populi Romani.
Bibliography. See Madvig,
Verfassung und Verwaltung
des römischen Staates (1881-82); Herzog,
Geschichte
und System der römischen Staatsverfassung (1884-87); Mommsen,
Römisches Staatsrecht (3d ed. 1887-88); Karlowa,
Römische Rechtsgeschichte, Bd. I.
(1885); Willems,
Droit Public Romain (6th ed. 1889).
