We have seen that on the downfall of the monarchy the kingly power was limited by being transferred to two annually elected officers, known in historic times as consuls, and that the struggle between the orders turned largely on the questions of the eligibility of plebeians to this office, which continued throughout the republic to be the highest in the state. Like the royal power of which it was the successor, the consular imperium was, strictly, unlimited, extending to all departments of government, and including leadership of the army, jurisdiction and the right of putting business before the assembly as well as, of course, before the senate, the advisory body originally of the kings, now of the consuls. The only sphere in which the consuls did not succeed fully to the kingly power appears to have been that of religion. The position of head to the priestly college of pontifices passed to a separate official, the pontifex maximus, and for certain minor religious purposes the name of "king" was retained by a priest known as the rex sacrorum.
The election of the consuls took place in the comitia centuriata, which was summoned for this purpose normally by a consul, exceptionally by a dictator, an interrex or a military tribune with consular power. For a praetor to hold the consular election was quite irregular. The date of the elections, the most important regular political event in the year, which drew numbers of citizens from all parts of Italy to Rome, varied considerably from year to year until settled by Sulla, after whose time they were held in July. The consular year however (since a law of 153 B.C.) always began on January Ist, so that there was a considerable interval during which the successful candidates were consules designati before entering on their office. Once elected, a consul could not legally be removed from office, except perhaps by a dictator, but removal of a consul did occur in a few cases during the revolutionary period. If a consul died or resigned it was for his colleague to hold an election to fill his place for the remainder of the year. If both consuls died, an interrex had to be appointed.
The consul's imperium is an effect the royal power, limited by the principle of colleagueship and the annual tenure of office. It is thus a general authority, military and civil, and undefined except in so far as special limitations are put upon it by specific statures or by the assignment of special functions to other magistrates. These limitations apply however almost exclusively within the city or the first milestone therefrom (domi); outside (militiae) the holder of imperium is untrammelled. The most important restriction based on statute was that concerning provocatio. The right of choosing the senate given to the censors, and the jurisdiction in civil matters assigned to the praetor urbanus are examples of powers originally belonging to the consuls and subsequently transferred to other magistrates. But apart from these legal restrictions and much more important is the all-pervading power of the senate of which the consuls came in effect to be merely the chief executive officers. Indeed, after Sulla's reorganisation of the constitution, the consuls are during their year of office no more than the chief executive officers in Rome and Italy; previously, although special praetors or ex-magistrates had been appointed as occasion required to be provincial governors, the consuls themselves had frequently commanded the armies of the republic outside as well as in Italy; according to the system introduced by Sulla, governorships of the provinces, and therefore the command of the troops stationed there, were regularly held by magistrates (consuls and praetors) whose year of office had come to an end. During their year of office the consuls and praetors did not leave Italy, and the importance of this principle politically was that it meant separation of military from civil power, for Italy, all the inhabitants of which were now citizens, was regarded as permanently pacified, and it became a constitutional principle that there should be no troops stationed within its boundaries.
The inconvenience of the principle of colleagueship, which meant that there were two officials whose functions and competence were precisely the same, was surmounted by a number of different expedients. In the last resort there was always the principle of intercessio to decide in case of disagreement, i.e. either consul could veto any act of his colleague, so that matters remained as they were. But of course government would have been impossible if it had been necessary to have recourse to this expedient often. To some extent the consuls divided their spheres of action by agreement; more commonly they acted together. They could, for instance, convene the senate together, or the assembly, and that they did so is witnessed by a number of laws bearing the names of consular colleagues. Where the business was such that only one man could do it, the matter might be arranged either by agreement or by lot, but there was also an old practice by which the consuls took turns of such duty. At home they changed every month, the older magistrate generally taking the first turn; only the consul whose turn it was had the fasces borne before him. In the field the more questionable practice of taking daily turns of supreme command prevailed.
Jurisdiction was always in theory a function of that imperium of which the consuls were the chief holders, but in fact, when a special jurisdictional magistracy, the praetorship, had been established, the consuls ceased to have any concern with civil litigation, and their criminal jurisdiction was, as we shall see, exercised on their behalf by the quaestors.
Of outward signs of rank the consuls had many. The magisterial toga praetexta (purple-edged toga) and the curule chair they shared with some other magistrates, but they alone were preceded by the full number of twelve lictors, bearing the fasces, or bundles of rods, the symbol of coercive authority, to which, as soon as the consul quitted the precincts of the city, the axe was added to show that he had exchanged the limited authority which he exercised domi for the unrestricted powers of the magistrate with imperium militiae. Most notable privilege of all was that by which the names of the consuls formed the official designation in the calendar of the year in which they had held office.
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- The republican constitution
+ The republican constitution: Elements
+ The struggle between the orders
+ The assemblies of the people
+ Characteristics and procedure of roman assemblies
+ The Senate
+ The praetorship
+ The aedileship
+ The quaestorship
+ The censorship
+ The tribunate
+ The dictatorship
+ The minor magistrates
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 43 - 46.
