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History of the Decline and Fall of the Roman Empir

Who before that emperor were elected in the comitia


[Footnote

29: Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side.]

[Footnote 30: Prae tumultu recusantium perferre non potuit, (Sueton. in August. c. 34.) See Propertius, l. ii. eleg. 6. Heineccius, in a separate history, has exhausted the whole subject of the Julian and Papian Poppaean laws, (Opp. tom. vii. P. i. p. 1--479.)]

[Footnote 31: Tacit. Annal. i. 15. Lipsius, Excursus E. in Tacitum. Note: This error of Gibbon has been long detected. The senate, under Tiberius did indeed elect the magistrates, who before that emperor were elected in the comitia. But we find laws enacted by the people during his reign, and that of Claudius. For example; the Julia-Norbana, Vellea, and Claudia de tutela foeminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol. ii. p. 55, 57. The comitia ceased imperceptibly as the republic gradually expired.--W.]

[Footnote 32: Non ambigitur senatum jus facere posse, is the decision of Ulpian, (l. xvi. ad Edict. in Pandect. l. i. tit. iii. leg. 9.) Pomponius taxes the comitia of the people as a turba hominum, (Pandect. l. i. tit. ii. leg 9.) * Note: The author adopts the opinion, that under the emperors alone the senate had a share in the legislative power. They had nevertheless participated in it under the Republic, since senatus-consulta relating to civil rights have been

preserved, which are much earlier than the reigns of Augustus or Tiberius. It is true that, under the emperors, the senate exercised this right more frequently, and that the assemblies of the people had become much more rare, though in law they were still permitted, in the time of Ulpian. (See the fragments of Ulpian.) Bach has clearly demonstrated that the senate had the same power in the time of the Republic. It is natural that the senatus-consulta should have been more frequent under the emperors, because they employed those means of flattering the pride of the senators, by granting them the right of deliberating on all affairs which did not intrench on the Imperial power. Compare the discussions of M. Hugo, vol. i. p. 284, et seq.--W.]

The silence or ambiguity of the laws was supplied by the occasional edicts [3211] of those magistrates who were invested with the honors of the state. [33] This ancient prerogative of the Roman kings was transferred, in their respective offices, to the consuls and dictators, the censors and praetors; and a similar right was assumed by the tribunes of the people, the ediles, and the proconsuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the praetor of the city. [3311] As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigor of ancient statutes. A principle of


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