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There was a province of urban law and a province of military law, in the latter of which the -provocatio- and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, -imperium-. The proconsul was in his province, just like the consul, at once commander-in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another.
There was a province of urban law and a province of military law, in the latter of which the -provocatio- and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, -imperium-. The proconsul was in his province, just like the consul, at once commander-in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another.
In the light of these regulations the dictatorship is doubtless to be conceived as an institution which arose at the same time with the consulship, and which was designed, especially in the event of war, to obviate for a time the disadvantages of divided power and to revive temporarily the regal authority; for in war more particularly the equality of rights in the consuls could not but appear fraught with danger; and not only positive testimonies, but above all the oldest names given to the magistrate himself and his assistant, as well as the limitation of the office to the duration of a summer campaign, and the exclusion of the -provocatio- attest the pre-eminently military design of the original dictatorship.
In the light of these regulations the dictatorship is doubtless to be conceived as an institution which arose at the same time with the consulship, and which was designed, especially in the event of war, to obviate for a time the disadvantages of divided power and to revive temporarily the regal authority; for in war more particularly the equality of rights in the consuls could not but appear fraught with danger; and not only positive testimonies, but above all the oldest names given to the magistrate himself and his assistant, as well as the limitation of the office to the duration of a summer campaign, and the exclusion of the -provocatio- attest the pre-eminently military design of the original dictatorship.
This was the beginning of the -provocatio-, which for that reason was especially permitted not to the transgressor who had refused to plead guilty and had been convicted, but to him who confessed his crime and urged reasons in palliation of it.
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.
The sacredness of the walls was thus illustrated in the tale of the death of Remus, the abolition of blood-revenge in the tale of the end of king Tatius , the necessity of the arrangement as to the -pons sublicius- in the legend of Horatius Cocles, the origin of the -provocatio- in the beautiful tale of the Horatii and Curiatii, the origin of manumission and of the burgess-rights of freedmen in the tale of the Tarquinian conspiracy and the slave Vindicius.
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.
The promise given to the plebs that its sworn liberties should not be touched, may be referred to the rights of the plebeians independent of the tribunate, such as the -provocatio- and the possession of the Aventine.
Opimius had been impeached after his year of office, but acquitted, which the senate might claim as a confirmation of the right, in spite of the lex of Gaius Gracchus, which confirmed the right of provocatio in all cases.
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