Republican magistrates

The magistrates were the officials of Rome elected by the people and vested with executive power (potestas) to fulfill their functions. They embodied the firm sense of order, power, and discipline of the Roman spirit.

Every magistrate had potestas, that is, the power to fulfill the rights and duties connected to his office. In addition to the general potestas, consuls and praetors (as well as the dictator and his main lieutenant) possessed a supreme power called imperium (command). The imperium included the power to represent Rome in its relations with foreign communities, to command the army, to take the auspices, to exercise civil and criminal jurisdiction, to call for the Senate and popular assemblies, and to issue edicts and proclamations. The insignia and impressive apparatus associated with imperium were an inheritance from the royal period. The imperium was effective both outside and inside the city. Inside the city, however, the imperium was limited by the right of citizens to appeal to the popular assemblies in case of imposition of a corporal or capital punishment. The magistrate’s power to impose fines was also restricted by law.

characteristic elements of the magistracies in general were their collegiality, temporality, and gratuity. These three elements limited magisterial power and acted as constitutional checks. collegiality meant that two (or more) magistrates (collegae) could simultaneously hold the same office and have the same power (Ulpian, D. 50.16.173pr.). Collegiality did not require that magistrates act in unison. As a matter of fact, to avoid conflicts, colleagues usually separated their activities, or they applied the principle of alternation. Any magistrate could obstruct the activity of another magistrate with equal or lower magisterial power. In the case of equal power (e.g., by a consul to his colleague), the veto (intercessio) would be interposed just when the colleague had already partially

Constitutional background of Roman law 33 begun accomplishing his action, neither before its initiation nor after its completion.

The second limitation of magistracies was temporal. All magistrates held office for a fixed and short term. The more absolute or exceptional the power of the magistrate was, the shorter his term was. The consuls and most of the ordinary magistrates held office for one year. The dictator’s term, however, could not exceed six months. Once his term had expired, the magistrate had to wait ten years to serve in the same office again. In exceptional circum­stances (e.g., amid a serious war, as during the Second Punic War, 218-211 BCE), the term could be extended. Ex-consuls and ex-praetors were entrusted with the administration of provinces by an extension of their imperium (pro­consul or propraetor). In the case of a magistracy becoming vacant (for instance, upon the death or resignation of a magistrate), a new elected magistrate held the office for the rest of the term. Between the term of magistracy and the election for a superior office, an interval of at least two years was required.

The last principle was gratuity. No salary was expected to be paid to any magistrate. To be a magistrate was considered a form of public recognition (honos), since the magistrate assumed the role of the city as such (persona communitatis). For this reason, only wealthy people or citizens supported by wealthy people could hold the office of magistrate.