The History of Rome, Book II. Theodor Mommsen

whole judicial system was organized. The consul could certainly exercise criminal jurisdiction also as to a capital process in the way of submitting his sentence to the community and having it thereupon confirmed or rejected; but he never, so far as we see, exercised this right, perhaps was soon not allowed to exercise it, and possibly pronounced a criminal judgment only in the case of appeal to the community being for any reason excluded. Direct conflict between the supreme magistrate of the community and the community itself was avoided, and the criminal procedure was organized really in such a way, that the supreme magistracy remained only in theory competent, but always acted through deputies who were necessary though appointed by himself. These were the two—not standing—pronouncers-of-judgment for revolt and high treason (-duoviri perduellionis-) and the two standing trackers of murder, the -quaestores parricidii-. Something similar may perhaps have occurred in the regal period, where the king had himself represented in such processes;6 but the standing character of the latter institution, and the collegiate principle carried out in both, belong at any rate to the republic. The latter arrangement became of great importance also, in so far that thereby for the first time alongside of the two standing supreme magistrates were placed two assistants, whom each supreme magistrate nominated at his entrance on office, and who in due course also went out with him on his leaving it—whose position thus, like the supreme magistracy itself, was organized according to the principles of a standing office, of a collegiate form, and of an annual tenure. This was not indeed as yet the inferior magistracy itself, at least not in the sense which the republic associated with the magisterial position, inasmuch as the commissioners did not emanate from the choice of the community; but it doubtless became the starting-point for the institution of subordinate magistrates, which was afterwards developed in so manifold ways.

      In a similar way the decision in civil procedure was withdrawn from the supreme magistracy, inasmuch as the right of the king to transfer an individual process for decision to a deputy was converted into the duty of the consul, after settling the legitimate title of the party and the object of the suit, to refer the disposal of it to a private man to be selected by him and furnished by him with instructions.

      In like manner there was left to the consuls the important administration of the state-treasure and of the state-archives; nevertheless probably at once, or at least very early, there were associated with them standing assistants in that duty, namely, those quaestors who, doubtless, had in exercising this function absolutely to obey them, but without whose previous knowledge and co-operation the consuls could not act.

      Where on the other hand such directions were not in existence, the president of the community in the capital had personally to intervene; as indeed, for example, at the introductory steps of a process he could not under any circumstances let himself be represented by deputy.

      This double restriction of the consular right of delegation subsisted for the government of the city, and primarily for the administration of justice and of the state-chest. As commander-in-chief, on the other hand, the consul retained the right of handing over all or any of the duties devolving on him. This diversity in the treatment of civil and military delegation explains why in the government of the Roman community proper no delegated magisterial authority (-pro magistrate-) was possible, nor were purely urban magistrates ever represented by non-magistrates; and why, on the other hand, military deputies (-pro consuls-, -pro praetore-, -pro quaestore-) were excluded from all action within the community proper.

      Nominating a Successor

      The right of nominating a successor had not been possessed by the king, but only by the interrex.7 The consul was in this respect placed on a like footing with the latter; nevertheless, in the event of his not having exercised the power, the interrex stepped in as before, and the necessary continuity of the office subsisted still undiminished under the republican government. The right of nomination, however, was materially restricted in favour of the burgesses, as the consul was bound to procure the assent of the burgesses for the successors designated by him, and, in the sequel, to nominate only those whom the community designated to him. Through this binding right of proposal the nomination of the ordinary supreme magistrates doubtless in a certain sense passed substantially into the hands of the community; practically, however, there still existed a very considerable distinction between that right of proposal and the right of formal nomination. The consul conducting the election was by no means a mere returning officer; he could still, e. g. by virtue of his old royal prerogative reject particular candidates and disregard the votes tendered for them; at first he might even limit the choice to a list of candidates proposed by himself; and—what was of still more consequence—when the collegiate consulship was to be supplemented by the dictator, of whom we shall speak immediately, in so supplementing it the community was not consulted, but on the contrary the consul in that case appointed his colleague with the same freedom, wherewith the interrex had once appointed the king.

      Change in the Nomination of Priests

      The nomination of the priests, which had been a prerogative of the kings,8 was not transferred to the consuls; but the colleges of priests filled up the vacancies in their own ranks, while the Vestals and single priests were nominated by the pontifical college, on which devolved also the exercise of the paternal jurisdiction, so to speak, of the community over the priestesses of Vesta. With a view to the performance of these acts, which could only be properly performed by a single individual, the college probably about this period first nominated a president, the -Pontifex maximus-. This separation of the supreme authority in things sacred from the civil power—while the already-mentioned "king for sacrifice" had neither the civil nor the sacred powers of the king, but simply the title, conferred upon him —and the semi-magisterial position of the new high priest, so decidedly contrasting with the character which otherwise marked the priesthood in Rome, form one of the most significant and important peculiarities of this state-revolution, the aim of which was to impose limits on the powers of the magistrates mainly in the interest of the aristocracy.

      We have already mentioned that the outward state of the consul was far inferior to that of the regal office hedged round as it was with reverence and terror, that the regal name and the priestly consecration were withheld from him, and that the axe was taken away from his attendants. We have to add that, instead of the purple robe which the king had worn, the consul was distinguished from the ordinary burgess simply by the purple border of his toga, and that, while the king perhaps regularly appeared in public in his chariot, the consul was bound to accommodate himself to the general rule and like every other burgess to go within the city on foot.

      The Dictator

      These limitations, however, of the plenary power and of the insignia of the magistracy applied in the main only to the ordinary presidency of the community. In extraordinary cases, alongside of, and in a certain sense instead of, the two presidents chosen by the community there emerged a single one, the master of the army (-magister populi-) usually designated as the -dictator-. In the choice of dictator the community exercised no influence at all, but it proceeded solely from the free resolve of one of the consuls for the time being, whose action neither his colleague nor any other authority could hinder. There was no appeal from his sentence any more than from that of the king, unless he chose to allow it. As soon as he was nominated, all the other magistrates were by right subject to his authority. On the other hand the duration of the dictator's office was limited in two ways: first, as the official colleague of those consuls, one of whom had nominated him, he might not remain in office beyond their legal term; and secondly, a period of six months was fixed as the absolute maximum for the duration of his office. It was a further arrangement peculiar to the dictatorship, that the "master of the army" was bound to nominate for himself immediately a "master of horse" (-magister equitum-), who acted along with him as a dependent assistant somewhat as did the quaestor along with the consul, and with him retired from office—an arrangement undoubtedly connected with the fact that the dictator, presumably as being the leader of the infantry, was constitutionally prohibited from mounting on horseback. In the light of these regulations the dictatorship is doubtless to be conceived as an institution which arose at the same time with the consulship, and which was designed, especially in the event of war, to obviate for a time the disadvantages of divided power and to revive temporarily

6

I. XI. Crimes

7

I. V. Prerogatives of the Senate

8

I. V. The King