oa Fundamina : A Journal of Legal History - Plinius, Epistulae 8,14 : Abstimmungsprobleme im römischen Senat
Classicists, historians and public choice-theorists have all found Plin. Epist. 8,14 unsatisfactory. This paper looks into the psephological question, Pliny's core topic, from a legal perspective. In the case of Afranius Dexter's freedman, Pliny wished to let each senator declare himself just once, for the death penalty, relegation or acquittal. Whether this was a reasonable demand or the epitome of "the art of political manipulation" (Riker), depends on the ius senatorium of the time. Senators voiced their adherence to a specific sententia by way of discessio. Assembling a maior pars of the senators "present and voting" around the auctor of a specific sententia did not in itself constitute the consultum or decretum senatus, the passing of a resolution. It required a perfectio decreti senatus by the presiding magistrate. All discessiones were part of one and the same preliminary process establishing support for conflicting opinions. It was therefore permissible to try to establish support for different, even contradictory sententiae, before the consul formulated the sententia senatus (arg. 8,14,13/14). Seen in the light of the ius senatorium of his time, Pliny's position was far from manipulative. All his arguments, while sometimes far-fetched and not as pertinent as those of Roman lawyers, are comprehensible. Pliny also looks into an alternative procedure, namely formally declaring a winner after the first discessio (on relegation), with an immediate fixing of a corresponding senatus consultum (8,14,21); this, however, would extinguish all rivalling proposals (8,14,22). The senate did not subscribe to Pliny's point of view, neither in the case of Afranius Dexter's liberti nor, for all we know, subsequently.
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