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
The power of legislating, that is of establishing fundamental changes
in civic relations, was never claimed by the Senate; nor had it ever
possessed any legal right to suggest or impede the making of a law. The
_patrum auctoritas_, like the _interregnum_, had resided only with the
patrician members of that body; and the power of previous deliberation
claimed by the later Senate as a whole was merely one of the inevitable
results of the balance of power within the magistracy. Such slight
approximations to law-making as are found were simply the result of
consultation by the magistrates on questionable points. The Senate
reaffirmed an ancient principle that the confession of a slave which
might doom his master to death or exile should not be wrung from him by
torture;[1331] it might even infringe so much on the freedom of contract
as to suggest a current rate of interest[1332]—a principle which the
praetor might respect if he cared or if his colleague obliged him to do
so.
But here again we meet with the strange anomaly that the Senate can
destroy where it cannot create. It claimed the sovereign privilege of
exempting individuals from the operation of the laws, and the claim
which was an admitted usurpation was sanctioned by custom. Formerly the
sovereign people could alone grant such dispensations, but the motion
submitted to the people was first approved by the Senate. Very gradually
the second stage in the proceedings was dropped, for it was considered
the merely formal sanction of an already accomplished act; and the
senatorial right of dispensation was assured until it was attacked by
the tribune Cornelius (67 B.C.). The proposal that it should be restored
to the people was successfully resisted, but a compromise was arrived at
by which it was agreed that no act of dispensation should be valid which
had not been approved by a house of at least two hundred members.[1333]
This provision, evidently meant to prevent the abuse of the power for
purely personal or party ends, did not fulfil its purpose, for _senatus
consulta_ of this kind were gained by influential men on the slightest
pretexts and for the most unworthy objects.[1334]
Public-domain text, read in full here on John Shaqi.
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