The Magistrature

Under the republican system of government executive power was divided among a number of annually elected magistrates {annul magistrates}}* In the earliest period of the Republic the offices of the state were filled exclusively by members of the patrician class.

But after the political barriers between the patricians and the plebeians were removed any freeborn Roman citizen could, in principle at least, be a candidate for public

The Constitution of the Roman Republic 'll office.^{^[224]} No special knowledge or ability was formally required and, until the passing of the lex Villia Annalis in 180 BC, no specific law existed prescribing a minimum age for magistrates.^{^[225]} It was recognised as a general norm, however, that a person could not be appointed to the highest offices of the state without first having passed through the lower ones - a process known as cursus honorum.^{^[226]}' But, during the early Republic at least, this norm does not appear to have received legislative recognition.^{^[227]}[228] The lex Villia annalis, mentioned above, probably included provisions setting out rules concerning the regular succession of the offices (certus ordo magistratuum). The lowest office in the order was the quaestorship (quaestura)·, above it in the scale was the aedileship (aedilitas), then the praetorship (nraetura) and then, highest of all, the consulship (consulates). The censorship (censura) and the dictatorship (dictatura) were not included in the cursus honorum. The magistrates of the Republic received no remuneration for their services. Appointment to state office reflected the people's confidence in the person elected and, as such, it was regarded as being the greatest of all honours.

As was noted before, the Roman magistrates' tenure of office was limited to one year, with the exception of the censors, who were appointed

for eighteen months, and the dictators, whose term in office did not exceed six months.

The principle of annuality served as an important constitutional safeguard against the danger of abuse of power which a long term in office entailed. But in the early years of the Republic this principle meant little, as a person could be re-elected to the same office for several years in succession. This practice, which was often followed by the tribunes, although it had been condemned by a senatorial decree passed in the middle of the fifth century BC,^{^[229]} did not come to an end until 342 BC, when it was enacted that no one could lawfully be re-elected to the same office unless ten years had passed from the time he was first elected to office. By the same legislation it was decreed that no one could occupy two magistracies in the same year.^{^[230]} Furthermore, under a law passed probably in the first half of the second century BC, no one was allowed to hold the consulship twice.^{^[231]} Notwithstanding these restrictions, the assembly and the senate reserved the right, when circumstances so demanded, to suspend the relevant rules or to introduce exceptions to the law in favour of certain individuals.name="_ftnref232" title="">^{^[232]}[233]

The magistrates were responsible to the Roman people and their assemblies by which they were elected (per suffragia populi)fr Upon entering office, a magistrate had to swear that he would abide by the law (iurare in leges)', when his term in office expired (abdicare se magistratu, magistratu deponere), he was similarly required to swear that he had not deliberately transgressed the law (eiurare magistratum). After leaving office, a magistrate could be held liable for any offences he committed while in office, especially for abuses of power committed against Roman citizens, members of allied communities or provincials. In other words, a magistrate's responsibility, which during his term in office was only political, became legal after his return to private life.^{^[234]}

Among the magistrates' main duties were the implementation of the decrees of the people and the senate and the administration of the laws.

But from an early period it became clear that state officials could not operate efficiently unless they were given a sufficient degree of freedom in the execution of their duties. Thus it was recognised that, within the confines of their authority, the magistrates could issue edicts or ordinances (edicta magistratuum) for the purpose of facilitating the application of the law. Although the magistrates were in no sense regarded as law-makers, their edicts played an important part in the development of the law and, in the later Republic, came to be regarded as a distinct source of law (ius honorarium).

The term potestas was used to denote the executive power with which every Roman magistrate was invested as soon as he was elected to office. By virtue of this power a magistrate was able to carry out the various duties and responsibilities of his office. In exercise of his potestas he could issue executive orders (ius edicendi) and employ any coercive or punitive measures he considered necessary for the enforcement of his orders (ius coercendi, coercitio min or).^{^[235]}[236] He could also call the citizens together in order to make announcements relating to the way he intended to discharge his duties (ius contionem habendi).

Besides the potestas, with which all state officials were invested, the highest magistracies (i.e. the consulship, the praetorship and the dictatorship) were accompanied by a special power known as imperium?' The word imperium, which originally signified the king's supreme military command, denoted, in a strict sense, the power of the higher magistrates to recruit and command troops, to appoint junior officers and to make arrangements for the distribution of war booty. Only magistrates with imperium (magistrates cum imperio) could assume command of an army, convene and preside over the assemblies of the people (ius agendi cum populo), summon and preside over the senate (ius agendi cum senate) and celebrate triumphs after victory in battle (ius triumphandi).

Moreover, only these magistrates had the full power of iurisdictio, that is, the power of setting out the legal principles upon which legal disputes were decided^{^[237]}and could impose severe penalties for violations of their orders, including capital punishments (jus coercendi, coercitio maior). As a sign of their supreme authority and their power to inflict severe punishments the magistrates with imperium, when appearing in public, were accompanied by officers, called lictors (lictores), carrying a bundle of rods (fasces') surrounding an axe (securis). Although outside the city of Rome a magistrate's imperium was regarded as absolute, within the city limits (pomerium) it was limited by the principle that supreme authority belonged to the Roman people and their legislative bodies.^{^[238]}[239] A further restriction upon the imperium of the higher magistrates, also based upon the presumed supremacy of the people, was the institution of the provocatio adpopulum, pertaining to the right of a citizen to appeal to the people's assembly against a capital sentence imposed upon him by a magistrate (jus provocations) But outside the city limits the magistrates' power to inflict such punishments remained absolute until the passing of the leges Porciae in the early second century BC. Under one of these laws the institution of provocatio was extended to protect citizens as well as soldiers from punishments imposed upon them by magistrates outside Rome.

As has been noted, a magistrate's term in office was limited to one year. But during the period of Rome's expansion it became evident that recalling a consul or praetor whose year in office had expired while he was still in command of an army engaged in military operations was both inconvenient and dangerous. Thus it was established that in times of war the assembly of the tribes (comitia tributa) could prolong the military command of a magistrate until the completion of the operation in which he was engaged.

This extension of the period of imperium by an act of the people was termed prorogatio imperium.^⁵ But in these cases the people reserved the right to rescind their own act (abrogare imperium) at any time.^{^[240]}[241] When the imperium of a consul or praetor was prolonged, he continued to exercise the relevant powers, even though he no longer held office. In time the titles of proconsul and propraetor were introduced to describe those who were invested with the powers of the consul or praetor respectively. As a general rule, however, only a person who had occupied the consulship or the praetorship could be appointed as a proconsul or propraetor.^{^[242]} The imperium of a proconsul or propraetor differed in some important respects from that of the ordinary consuls and praetors. For instance, a proconsul could not exercise his imperium outside the particular district or province where he was appointed. And when a victorious proconsul or propraetor returned to Rome to celebrate a triumph, he had to remain outside the city limits until his entrance was approved by the senate and the assembly of the people and a special plebiscitum was passed allowing him to retain his imperium within the city on the day of the triumph. An ordinary consul, by contrast, could exercise his imperium anywhere outside the city limits. And although within Rome his imperium fell in abeyance, he could leave and re-enter the city as often as he needed, without having to apply each time for its renewal.

Besides annuality, another important principle governing the institution of the magistrature was that of collegiality {collegium). The same magistracy was held by more than one person^{^[243]} each of whom had equal potestas and, with respect to the higher magistrates, equal imperium. The division of the magistracies facilitated the carrying out of the various duties which each office entailed with greater speed and efficiency.^{^[244]} But, more importantly, the principle of collegiality was intended to serve as a barrier against abuses of power by state officials, as a magistrate could not enforce a decision or order without the consent or acquiescence of his colleague.

A magistrate could prevent the execution of a decision of his colleague either in advance (prohibitio) or after its publication (intercessio, ius intercessionis). Moreover, the lex Villia annalis (180 BC) provided that higher magistrates could prevent the performance of official acts of lower magistrates by prohibitio or intercessio. Of particular importance was the right of the tribunes (as was noted earlier, these were not regarded as magistrates) to veto official acts not only of other tribunes but of any magistrate.

As magistrates remained in office for a limited time only, it would have been difficult for them to carry out their duties efficiently without the help of advisers and experienced technical staff. Thus, when discharging his judicial functions, a magistrate was usually assisted by a council of experts (consilium). The daily routine and most of the clerical work was carried out by salaried civil servants (apparitores) or slaves (servi publici, ministeria). Moreover, a magistrate could perform some of his duties through delegates acting in his name, but could not appoint another person in his place.⁵[245]

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The Magistrature

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