1911 Encyclopædia Britannica/Magistrate
MAGISTRATE (Lat. magistratus, from magister, master, properly a public office, hence the person holding such an office), in general, one vested with authority to administer the law or one possessing large judicial or executive authority. In this broad sense the word is used in such phrases as “the first magistrate” of a king in a monarchy or “the chief magistrate” of the president of the United States. But it is more generally applied to minor or subordinate judicial officers, whether unpaid, as justices of the peace, or paid, as stipendiary magistrates. A stipendiary magistrate is appointed in London under the Metropolitan Police Courts Act 1839, in municipal boroughs under the Municipal Corporations Act 1882, and in particular districts under the Stipendiary Magistrates Act 1863 and special acts. In London and municipal boroughs a stipendiary magistrate must be a barrister of at least seven years’ standing, while under the Stipendiary Magistrates Act 1863 he may be of five years’ standing. A stipendiary magistrate may do alone all acts authorized to be done by two justices of the peace.
The term magistratus in ancient Rome originally implied the office of magister (master) of the Roman people, but was subsequently applied also to the holder of the office, thus becoming identical in sense with magister, and supplanting it in reference to any kind of public office. The fundamental conception of Roman magistracy is tenure of the imperium, the sovereignty which resides with the Roman people, but is by it conferred either upon a single ruler for life, as in the later monarchy, or upon a college of magistrates for a fixed term, as in the Republican period. The Roman theory of magistracy underwent little change when two consuls were substituted for the king; but the subdivision of magisterial powers which characterized the first centuries of the Republic, and resulted in the establishment of twenty annually elected magistrates of the people, implied some modification of this principle of the investiture of magistrates with supreme authority. For when the magistracies were multiplied a distinction was drawn between magistrates with imperium, namely consuls, praetors and occasionally dictators, and the remaining magistrates, who, although exercising independent magisterial authority and in no sense agents of the higher magistrates, were invested merely with an authority (potestas) to assist in the administration of the state. At the same time the actual authority of every magistrate was weakened not only by his colleagues’ power of veto, but by the power possessed by any magistrate of quashing the act of an inferior, and by the tribune’s right of putting his veto on the act of any magistrate except a dictator; and the subdivision of authority, which placed a great deal of business in the hands of young and inexperienced magistrates, further tended to increase the actual power as well as the influence of the senate at the expense of the magistracy.
In the developed Republic magistracies were divided into two classes: (a) magistrates of the whole people (populi Romani) and (b) magistrates of the plebs. The former class is again divided into two sections: (α) curule and (β) non-curule, a distinction which rests mainly on dignity rather than on actual power, for it cuts across the division of magistrates according to their tenure or non-tenure of imperium.
a. The magistrates of the people—also known as patrician magistrates, probably because the older and more important of these magistracies could originally be held only by patricians (q.v.)—were: (α) Dictator, master of the horse (see Dictator), consuls, praetors, curule, aediles and censors (curule); and (β) Quaestors, and the body of minor magistrates known as xxvi. viri (non-curule). The dictatorship and consulship were as old as the Republic. The first praetor was appointed in 366 B.C., a second was added in 242 B.C., and the number was gradually increased for provincial government until Sulla brought it up to eight, and under the early principate it grew to eighteen. Censors were first instituted in 443 B.C., and the office continued unchanged until its abolition by Sulla, after which, though restored, it rapidly fell into abeyance. Curule aediles were instituted at the same time as the praetorship, and continued throughout the Republic. The quaestorship was at least as old as the Republic, but the number rose during the Republic from two to twenty. All these offices except the censorship continued for administrative purposes during the principate, though shorn of all important powers.
b. The plebeian magistrates had their origin in the secession of the plebs to Mons Sacer in 494 B.C. (see Rome: History). In that year tribunes of the plebs were instituted, and two aediles were given them as subordinate officials, who were afterwards known as plebeian aediles, to distinguish them from the curule magistrates of the same name. Both these offices were abolished during the decemvirate, but were restored in 449 B.C., and survived into the principate.
The powers possessed by all magistrates alike were two:—that of enforcing their enactments (coercitio) by the exercise of any punishment short of capital, and that of veto (intercessio) of any act of a colleague or minor magistrate. The right of summoning and presiding over an assembly of that body of citizens with whose powers the magistrate was invested lay with the higher magistrates only in each class, with the consuls and praetors, and with the tribunes of the plebs. Civil jurisdiction was always a magisterial prerogative at Rome, and criminal jurisdiction also, except in capital cases, the decision of which was vested in the people at least as early as the first year of the Republic, was wielded by magistrates until the establishment of the various quaestiones perpetuae during the last century of the Republic. But in civil cases the magistrate, though controlling the trial and deciding matters of law, was quite distinct from the judge or body of judges who decided the question of fact; and the quaestiones perpetuae, which reduced the magistrate in criminal cases to a mere president of the court, gave him a position inferior to that of the praetor, who tried civil cases, only in so far as the praetor controlled the trial in some degree by his formula, under which the judges decided the question of fact.
Tenure of magistracy was always held to depend upon election by the body whose powers the magistrate wielded. Thus the magistrates of the plebs were elected by the plebeian council, those of the people in the Comitia (q.v.). In every case the outgoing magistrate, as presiding officer of the elective assembly, exercised the important right of nominating his successor for election.
See A. H. J. Greenidge, Roman Public Life, 152 seq., 363 seq. (London, 1901); T. Mommsen, Römisches Staatsrecht, I. 11. i. (1887). (A. M. Cl.)