ty 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