The History of Rome, vol 2 | Page 4

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