Читать книгу Roman Public Life онлайн

85 страница из 145

The king was the sole exponent of this sense of violated right, and the sole interpreter of the jus fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various forms—death by the arbor infelix or from the Tarpeian rock—it was fixed by the mos majorum. The trial was a personal investigation (quaestio) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.[252] Two such classes of delegates are attributed to the regal period, the duumviri perduellionis and the quaestores parricidii.[253]

There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[254] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[257] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.[259] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[260] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.