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).