Page:The history of Rome. Translated with the author's sanction and additions.djvu/279

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 ^[509]) 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 ^[451]) 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 hitherto 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 trjp holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. If therefore the consul acted within the old regal jurisdiction, he might in his actings perpetrate an injustice, but he committed no crime, and so was not amenable for what he did to the penal judge.

Restriction on the delegation of powers. A limitation similar in its tendency took place in the civil jurisdiction; for to this epoch probably belongs the change, by which the right of the magistrates, after adjustment of a cause, to commit to a private person the investigation of its merits was converted into an obligation to do so. It is probable that this was accomplished by 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, in the case of the consul the right of delegating his powers seems to have been limited and legally restricted in a twofold manner. In the first place such comprehensive delegations of power—themselves partaking of the splendour that environed the king—as were conferred on the warden of the city in relation to the administration of justice, and on the master of the horse in regard to the