Roman Public LifeGreenidge, A. H. J. (Abel Hendy Jones)
History
Roman Public Life
Greenidge, A. H. J. (Abel Hendy Jones)
Constitutional history -- Rome; Rome -- Politics and government
In constitutional legislation the power of the people was unlimited.
They could create new parliaments, as they did the _comitia tributa
populi_;[1161] they could delegate full powers of legislation
to parliaments already existing, as they did to the _concilium
plebis_.[1162] They could devolve powers almost amounting to sovereign
rights on an individual, as they devolved them ultimately on the
Princeps. They might suspend the constitution and set up a provisional
government, as they did when they gave constitutive powers to the
decemvirs or to Sulla.
They might also observe or create rules which limited their own power
of utterance. A result of observance of a rule is a _formula_ which
appears in Roman laws declaring their operation invalid in so far as they
conflict with any fundamental obligation—the _fas_ or _jus_ which lies
at the background of the state and which the people themselves dare not
infringe. The scruple was expressed in the saving clause—
SI QUID JUS NON ESSET ROGARIER, EJUS EA LEGE NIHILUM
ROGATUM.[1163]
Primarily this clause guarded a law against being a breach of a religious
obligation;[1164] but, as interpreted by Cicero, it was a profession of
respect even for certain ultimate secular rights—the rights for instance,
to the possession of citizenship.
The creation of limitations may be instanced by the provision of the
Twelve Tables, which forbade enactments to the detriment of individuals
(_privilegia_),[1165] and by a principle—perhaps rather a rule of
procedure analogous to the formalities of legislation—which forbade laws
on different subjects to be passed _en bloc_ (_per saturam_), a provision
re-enacted by a _lex Caecilia Didia_ of 98 B.C.[1166]
The creation of new magistracies was also within the power of the
people, and, originally, the extension of an office beyond its proper
term. In the year 327 B.C., at the commencement of the second Samnite
war, the consul Q. Publilius Philo had his _imperium_ prolonged by a
_plebiscitum_;[1167] although, as early as 308 B.C., in the prorogation
of the command of the consul Q. Fabius Maximus, the Senate alone is
mentioned as giving its sanction.[1168]
The establishment of special judicial commissions to decide without
appeal, in cases where the ordinary authorities were felt to be unable
to cope with crime or conspiracy, was, in the strict theory of the
constitution, entirely in the people’s hands. Commissions of this kind
are found in 187,[1169] 172,[1170] and 141[1171] B.C. In all these cases
there was co-operation between the Senate and people, and it is not until
the revolutionary period that the people ventures on its own authority to
establish a commission for criminal investigation.[1172]
Public-domain text, read in full here on John Shaqi.
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