THE HISTORY OF OLD ROME

II. From the Abolition of the Monarchy in Rome to the Union of Italy

From: The History of Rome, by Theodor Mommsen
Translated with the sanction of the author by William Purdie Dickson

CHAPTER I - Change of the Constitution - Limitation of the Power of the Magistrate

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Page 12

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.

5. Cf. I. V. The King

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.

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