The History of Rome - All 5 Volumes in One Edition. Theodor Mommsen
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of clearer light as to the nature of the change which was made in the constitution. The royal power was by no means abolished, as is shown by the very fact that, when a vacancy occurred afterwards as before, an "interim king" (-interrex-) was nominated. The one life-king was simply replaced by two year-kings, who called themselves generals (-praetores-), or judges (-iudices-), or merely colleagues (consules).3 The principles of collegiate tenure and of annual duration are those which distinguish the republic from the monarchy, and they first meet us here.
Collegiate Arrangement
The collegiate principle, from which the third and subsequently most current name of the annual kings was derived, assumed in their case an altogether peculiar form. The supreme power was not entrusted to the two magistrates conjointly, but each consul possessed and exercised it for himself as fully and wholly as it had been possessed and exercised by the king. This was carried so far that, instead of one of the two colleagues undertaking perhaps the administration of justice, and the other the command of the army, they both administered justice simultaneously in the city just as they both set out together to the army; in case of collision the matter was decided by a rotation measured by months or days. A certain partition of functions withal, at least in the supreme military command, might doubtless take place from the outset—the one consul for example taking the field against the Aequi, and the other against the Volsci—but it had in no wise binding force, and each of the colleagues was legally at liberty to interfere at any time in the province of the other. When, therefore, supreme power confronted supreme power and the one colleague forbade what the other enjoined, the consular commands neutralized each other. This peculiarly Latin, if not peculiarly Roman, institution of co-ordinate supreme authorities—which in the Roman commonwealth on the whole approved itself as practicable, but to which it will be difficult to find a parallel in any other considerable state —manifestly sprang out of the endeavour to retain the regal power in legally undiminished fulness. They were thus led not to break up the royal office into parts or to transfer it from an individual to a college, but simply to double it and thereby, if necessary, to neutralize it through its own action.
Term of Office
As regards the termination of their tenure of office, the earlier -interregnum- of five days furnished a legal precedent. The ordinary presidents of the community were bound not to remain in office longer than a year reckoned from the day of their entering on their functions;4 and they ceased -de jure- to be magistrates upon the expiry of the year, just as the interrex on the expiry of the five days. Through this set termination of the supreme office the practical irresponsibility of the king was lost in the case of the consul. It is true that the king was always in the Roman commonwealth subject, and not superior, to the law; but, as according to the Roman view the supreme judge could not be prosecuted at his own bar, the king might doubtless have committed a crime, but there was for him no tribunal and no punishment. The consul, again, if he had committed murder or treason, was protected by his office, but only so long as it lasted; on his retirement he was liable to the ordinary penal jurisdiction like any other burgess.
To these leading changes, affecting the principles of the constitution, other restrictions were added of a subordinate and more external character, some of which nevertheless produced a deep effect The privilege of the king to have his fields tilled by task-work of the burgesses, and the special relation of clientship in which the —metoeci— as a body must have stood to the king, ceased of themselves with the life tenure of the office.
Right of Appeal
Hitherto in criminal processes as well as in fines and corporal punishments it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in 245) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punishment had been pronounced otherwise than by martial law—a regulation which by a later law (of uncertain date, but passed before 303) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes which they had previously carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the -provocatio-, with no other penalty than infamy—which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon the holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. When therefore the consul acted within the old regal jurisdiction, he might in so acting perpetrate an injustice, but he committed no crime and consequently was not amenable for what he did to the penal judge.
A limitation similar in its tendency took place in the civil jurisdiction; for probably there was taken from the consuls at the very outset the right of deciding at their discretion a legal dispute between private persons.
Restrictions on the Delegation of Powers
The remodelling of the criminal as of civil procedure stood in connection with a general arrangement respecting the transference of magisterial power to deputies or successors. While the king had been absolutely at liberty to nominate deputies but had never been compelled to do so, the consuls exercised the right of delegating power in an essentially different way. No doubt the rule that, if the supreme magistrate left the city, he had to appoint a warden there for the administration of justice,5 remained in force also for the consuls, and the collegiate arrangement was not even extended to such delegation; on the contrary this appointment was laid on the consul who was the last to leave the city. But the right of delegation for the time when the consuls remained in the city was probably restricted, upon the very introduction of this office, by providing that delegation should be prescribed to the consul for definite cases, but should be prohibited for all cases in which it was not so prescribed. According to this principle, as we have said, the 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.
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