The History of Rome, vol 2 | Page 5

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.
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