But towards the close of its tenure of power, when the struggle for existence caused it to strain its prerogatives to the utmost limit, we find the Senate claiming the very analogous right of suspending a magistrate from the exercise of the functions of his office. A charge of turbulent proceedings was the motive for the suspension of Caesar from the praetorship, and of Metellus Nepos from the tribunate in 62,[1] and Caelius Rufus was ejected, on the allegation of similar misconduct, from the curule chair of the praetor in 48.[2] The use of this power against the praetor, or indeed against any magistrate subject to the major potestas of the tribune, is comprehensible; for the latter might, at the bidding of the Senate, inhibit any official from the exercise of his customary functions; how the power could be employed against the tribunate itself is one of the hidden mysteries of senatorial usurpation.
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;[3] it might even infringe so much on the freedom of contract as to suggest a current rate of interest[4]—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
- ↑ Suet. Caes. 16 (Caesar supported Metellus in carrying) "turbulentissimas leges adversus collegarum intercessionem . . . donec ambo administratione reipublicae decreto patrum submoverentur."
- ↑ In this case the prohibition was effected through the coercive power of the consul springing from his majus imperium (Dio Cass. xlii. 23).
- ↑ Tac. Ann. ii. 30 "vetere senatus consulto quaestio in caput domini prohibebatur."
- ↑ Cic. ad Att. v. 21, 13 (50 B.C.) "cum senatus consultum modo factum sit . . . in creditorum causa, ut centesimae perpetuo faenore ducerentur."
