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p723 Magistratus

Article by George Long, M.A., Fellow of Trinity College
on pp723‑724 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

MAGISTRA′TUS. A definition of Magistratus may be collected from Pomponius, De Origine Juris (Dig. 1 tit. 2). Magistratus are those "qui jure dicundo praesunt." The King was originally the sole Magistratus; he had all the Potestas. On the expulsion of the Kings, two Consuls were annually appointed and they were Magistratus. In course of time other Magistratus were appointed, so that Pomponius enumerates as the Magistratus of his time "qui in civitate jura reddebant," ten tribuni plebis, two consuls, eighteen praetors, and six aediles. He adds that the Praefecti Annonae et Vigilum were not Magistratus. The Dictator was also a Magistratus; and the Censors; and the Decemviri litibus judicandis. The governors of Provinces with the title of Propraetor or Proconsul were also Magistratus. Gaius attributes the Jus Edicendi to the Magistratus Populi Romani, without any restriction; but he says that the chief edictal power was possessed by the Praetor Urbanus and the Praetor Peregrinus, whose jurisdictio in the provinces was exercised by the Praesides of the Provinces; and also by the Curule Aediles whose jurisdiction in the Provinciae Populi Romani was exercised by the Quaestors of those Provinces.

The word Magistratus contains the same element as mag(ister) and mag(nus); and it signifies both the persons and the office, as we see in the phrase "se magistratu abdicare," which signifies to give up the office before the time at which it regularly p724expired. (On the abdicatio, see Rubino, Römische Staatsverfassung, p88; and Plut. Cic. 19) (Liv. VI.1, XXIII.23). According to Festus, a magistratus was one who had "judicium auspiciumque."

According to M. Messala the augur, quoted by Gellius (XIII.15), the Auspicia Maxima belonged to the Consuls, Praetors, and Censors, and the Minora Auspicia to the Magistratus; accordingly the Consuls, Praetors, and Censors were called Majores, and they were elected at the Comitia Centuriata; the other Magistratus were called Minores. The Magistratus were also divided into Curules and those who were not Curules: the Magistratus Curules were the dictator, consuls, praetors, censors, and the curule aediles, who were so called because they had the Jus Sellae Curulis. The magistrates were chosen only from the Patricians in the early Republic, but in course of time the Plebeians shared these honours, with the exception of that of the Interrex: the Plebeian Magistratus properly so called were the Plebeian Aediles and the Tribuni Plebis.

The distinction of Magistratus into Majores who had the Imperium, and the Minores who had not, had a reference to Jurisdiction also. The former term comprised Praetors and governors of Provinces; the latter in the Republican time, comprised Aediles and Quaestors, and, under the Empire, the numerous body of Municipal Magistrates. The want of the Imperium limited the power of the Magistratus Minores in various matters which came under their cognizance, and the want of it also removed other matters entirely from their jurisdictio (taking the word in its general sense). Those matters which belonged to Jurisdictio in its limited sense were within the competence of the Magistratus Minores [Jurisdictio]; but those matters which belong to the Imperium, were for that reason not within the competence of the Magistratus Minores. As proceeding from the Imperium we find enumerated the praetoriae stipulationes, such as the entire cautio damni infecti, and ex novi operis nunciatione; and also the Missio in possessionem, and the In integrum restitutio. Thus it appears that the limited jurisdictio was confined to the Ordo judiciorum privatorum, and all the proceedings Extra ordinem were based on the Imperium; consequently a Minor Magistratus could not exercise Cognitio, properly so called, and could not make a Decretum. This consideration explains the fact of two Praetors for questions at to fideicommissa being appointed under Claudius: they had to decide such matters for all Italy, inasmuch as such matters were not within the competence of the municipal magistrates. The jurisdiction of the municipal magistrates of Cisalpine Gaul was limited in many cases to a certain sum of money; and this limitation was afterwards extended to all Italy. Added to this, these magistrates had not the Imperium, which, as already observed, limited their Jurisdictio.

The Magistratus Minores could take cognizance of matters which were not within their jurisdictio, by delegation from a superior Magistratus. Thus in the case of Damnum Infectum, inasmuch as delay might cause irreparable mischief, the Praetor could delegate to the Municipal Magistratus who were under him, the power of requiring the Cautio (Dig. 39 tit. 2 s4).

It became necessary to re-organize the administration of Gallia Cisalpina, on its ceasing to be a Province; and as the Jurisdictio was placed in the hands of Municipal Magistratus, who had no Imperium, it was further necessary to determine what should be the form of procedure before these Magistratus in all matters that were extra ordinem, that is, in such matters as did not belong to their competence because they were Magistratus Minores, but were specially given to them by a Lex. The determining of this form of procedure was the object of the Lex Rubria. [Lex Rubria.] (Puchta, Zeitschrift, X p195).

The case of Adoption (properly so called) illustrates the distinction of Magistratus into Majores and Minores, as founded on the possessing or not possessing the Imperium (Gaius, I.99). This adoption was effected "Imperio Magistratus", as for instance the same thing was effected before a Proconsul or Legatus, both of whom therefore had the Imperium. The Municipal Magistratus, as they had not the Imperium, could not give validity to such an act of adoption.


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