The History of Rome. Book II

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.

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.