SENATUS
SENATUS The “senate” or “council of
elders” (
seniores: comp. the Greek
γερουσία) ranked with the kingship, and
the assembly of burgesses among the oldest of Roman institutions, and, like
the two latter, existed also among the kindred communities of Latium
(Mommsen,
Staatsr. 3.836, note 2). Its creation is ascribed
by tradition to Romulus (
Liv. 1.8). The members of
the senate were
senatores. The collective
appellation
patres (= “chiefs”
rather than “fathers” ) belonged of right to the purely
patrician senate of the earliest days, but was transferred to the mixed
patricio-plebeian body of later times (Cicero, Sallust, and
Livy,
passim), and used as equivalent to
senatus. Similarly the two functions inherited by the mixed
senate from its patrician predecessor, the appointment
[p. 2.621]of the interrex, and the ratification of votes given by the
assembly, are always spoken of as acts of the
patres, though in fact performed by the senate as a whole. [For
this and for Mommsen's rival theory, that
patres in these cases always meant only the patrician members of
the senate, see below.] The fact that the patrician
patres had once formed the whole senate, and that plebeians
were not admitted until a later time, was possibly commemorated by the
official term
patres conscripti; the
conscripti denoting originally the plebeian members
called up by the magistrate (Festus, p. 254;
Liv.
2.1; Mommsen,
Staatsr. 3.839; Madvig,
Verfass. 1.125. Willems,
Le Sénat,
1.37
sqq., maintains on the contrary that the term
means simply “assembled fathers.” For Mommsen's view of the
inferior position of the plebeian
conscripti,
see below).
I.
Number of the Senate. Roman tradition represents the senate
as consisting originally of 100 members (
Liv.
1.8), and as having been gradually enlarged to 300, though of the
steps by which this increase was effected it gives no consistent account.
That 300 remained the normal number down to the time of Sulla is generally
agreed. From 81 B.C. to the dictatorship of Caesar, the nominal maximum was
600. Under Caesar the numbers rose to 900 (
D. C.
43.47); under the triumvirs to over 1000 (
Suet. Aug. 35, “erant enim super mille:” cf.
Mon. Ancyr. 5, 6). Augustus reduced them once more to 600
(Suet.
l.c.;
D. C. 54.13); but there is no proof that either
by himself or his successors was this limit strictly observed. [The advice
given by Maecenas to Augustus not to be particular as to the number of
senators (
μηδὲν περὶ τοῦ πλήθους αὐτῶν
ἀκριβολογούμενος,
D. C. 52.19) may be taken, with Mommsen, to
represent the practice of Dio's own time. See Mommsen,
Staatsr. 3.850, note 3.]
II.
Admission and expulsion of Senators.--It was a
distinctive peculiarity of the Roman senate, that admission to its ranks was
always given, not by popular election or by cooptation, but by the act of
the magistrate, who has for the time being the authority
legere in senatuzm; and though, as will be shown, his freedom of
choice was under the later Republic so restricted by law as to reduce the
lectio senatus to little more than the
formal enrolment of persons with a legal claim to be enrolled, yet his
action continued to be indispensable (
V. Max.
2.3,
1), and under the Empire regained
much of its original liberty. The two principles that the senate was only a
council of advice for the magistrate, and that the magistrate selected his
councillors, though modified in practice by the anxiety of the senate to
assert its independence, were never formally abandoned, and were
successfully re-asserted by the Caesars. Prof. Mommsen indeed has a theory
that in pre-historic times the case was otherwise, and that the original
senate, as consisting of the assembled heads (
patres) of the patrician gentes, was independent as to its
composition of the authority of the magistrate (Mommsen,
Staatsr. 3.844, 854). That the early senate was composed
exclusively of patricians may be safely assumed. It is, moreover, probable
that from this original and close connexion with the
gentes were derived the claims which the patrician senate
bequeathed to its patricio-plebeian successor to be the special guardians of
the auspicia, and of the ancient order of things bound up with them. But of
a strictly representative gentile council there is, as Mommsen himself
confesses, no evidence. The senate as first known to us appears as a council
composed of patricians, but of patricians selected by the chief magistrate
[
Liv. 1.8, “Romulus centum
creat senatores.” Willems' theory
(
Le Sénat, 1.26) that the senate was
originally a “réunion de tous les
patres
familiarum seniores des familles patriciennes,” and
that subsequently “le choix royal succéda au droit
d'hérédité,” is an equally
unfounded and a less plausible conjecture].
Starting from the earliest system known to us, that under which the senators
were chosen by the magistrate, we have to consider, (1) to what magistrates
this right of choice was successively granted; (2) by what conditions, legal
or customary, the choice was limited; and (3) the mode in which the
lectio senatus was carried out.
(1.) The prerogative of choosing senators belonged at first to the king. From
the king it passed to the consuls, and was during a brief period granted to
their temporary substitutes, the
tribuni militum
consulari potestate (Festus, p. 246, “ut reges sibi
legebant, sublegebantque quos in consilio publico haberent, ita post
exactos eos consules quoque et tribuni militum consulari potestate
conjunctissimos sibi quosque patriciorum et deinde plebeiorum
legebant” ). The date at which it was transferred to the censors is
uncertain. That the change was not made before 387 A.U.C. = 367 B.C., the last year in
which consular tribunes were appointed, is implied in the passage quoted
above from Festus; and it was not therefore coeval with the institution of
the censorship itself (443 B.C.). According to the same passage, it was
effected by a Lex Ovinia tribunicia: “donec Ovinia tribunicia
intercessit qua sanctum est ut
censores ex
omni ordine optimum quemque curiatim (
sic)
in senatum legerent;” and may be assumed to have been, as such,
made in the interest of the plebs. We may consequently place it after the
passing of the Lex Publilia (339 B.C.), which enacted that one censor must
be a plebeian (
Liv. 8.12), since a tribune of the
plebs at that period would not have been likely to entrust the choice of
senators to patrician magistrates. The first recorded
lectio senatus by censors is the famous one in the censorship
of Appius Claudius Caecus (312 B.C.;
Liv. 9.29), so that the Lex Ovinia and the
transference of the
lectio senatus to the
censors may be assigned to some date between 339 B.C. and 312 B.C. (Mommsen,
Staatsr. 2.395; Willems, 1.155). With the censors the
duty remained down to the close of the Republic, though on two occasions it
was entrusted, as an exceptional measure, to a dictator. In 216 B.C., after the battle of Cannae, M. Fabius Buteo
was created dictator for this purpose (
Liv.
23.22, “qui senatum legeret” ); and Sulla exercised the
prerogative as dictator in 81 B.C. (Appian,
App.
BC 1.100). Both Julius Caesar and the triumvirs “selected
senators” in virtue of the extraordinary powers vested in them.
Augustus, true to his general policy, made a partial return to the old
practice. Although the censorship proper ceased to exist, and the creation
of senators devolved upon the princeps, the old
[p. 2.622]connexion between this act and the censorial authority was not entirely
lost sight of. Of the three regular
lectiones
senatus held by Augustus (
Mon. Ancyr. 2.1,
“senatum ter legi” ), the first certainly and the two
others probably coincided with the three
census
of Roman citizens taken by him in 28 B.C., 8 B.C., and 14 A.D. Moreover, though under Augustus
and his successors both the calling up into the senate of persons legally
qualified by the tenure of the quaestorship, and the removal from the list
of the names of such senators as had died or proved themselves unworthy,
took place annually and quite independently of any censorial authority, the
direct admission (
adlectio) of men freely
selected by Caesar was a power only occasionally exercised in the first
century and always in virtue of the censorial authority, e. g. by Claudius,
Vespasian, and Titus (
C. I. L. 5.3117; Orelli, 3659; Mommsen,
Staatsr. 2.877, 3.857). Domitian, as censor for life,
first exercised it continuously. From his time onwards the right was
possessed and used by all emperors at their discretion, and without any
reference to censorial authority as a power inherent in the imperial
prerogative (Mommsen,
Staatsr. 2.857).
(2.) The old constitution left the king or consul free to choose as senators
the men he thought best fitted for the post. Full citizenship, free birth
(
ingenuitas), and good character were no
doubt always indispensable for a seat in the senate as for a magistracy; but
although custom may have limited the choice of the king to patricians, there
is no proof that he was prohibited by law from admitting plebeians; and the
admission of the latter is represented in tradition as the free act of the
king or consul, not as the consequence of special legislation. [
Liv. 2.1. Mommsen's theory, that originally a seat
in the senate was an exclusively patrician privilege
(
Staatsr. 3.870), must stand or fall with his hypothesis
mentioned above, of a time when the senate was a representative council of
the gentes. As he confesses himself, no traces are discoverable of any
formal representation in the senate of the gentes or curiae.] The classical
passage in Festus describes the kings and consuls as choosing freely:
“conjunctissimos sibi quosque . . . legebant;” so that to
be passed over inflicted no disgrace, “praeteriti senatores in
opprobrio non erant” (Id. ib.). Even by the Lex Ovinia the
censors were directed to choose “ex omni ordine optimum
quemque;” and Cicero declares (
pro Sest.
65, 137) that the original intention of the constitution was, that the
senate should be open “omnium civium industriae ac virtuti.”
But this early freedom of choice was gradually restricted. It is probable
that the consuls at the end of their year of office had always a claim to be
enrolled as senators, and we may assume that this privilege was conceded
from the first to
praetores. When, owing to the
transference of the
lectio senatus to the
censors, the revision of the senatorial list took place not annually but
quinquennially, the ex-magistrates who had a claim to be enrolled were
permitted, after the end of their year of office and while waiting for the
next quinquennial
lectio, to enter the
senate-house, and though not yet senators to give their
sententiae with the rest. Hence the distinction drawn between
“senatores” and those “quibus in senatu sententiam
dicere licet.” (
Liv. 23.32; Fest. p.
339; Varro, ap.
Gel. 3.18, “qui nondum a
censoribus in senatum lecti, senatores non erant, sed quia honoribus
populi usi erant, in senatum veniebant, et sententiae jus
habebant.” ) The number of magistracies carrying this privilege
increased as time went on. By 216 B.C. it had evidently been extended to the
curule aedileship, since Livy, in describing the
lectio of that exceptional year, plainly includes the curule
aedileship among the offices which entitled their holders to a seat in the
senate (
Liv. 22.49, “unde in senatum legi
deberent,” 23.23; and Mommsen,
Staatsr. 3.860,
note 3). On the other hand, the minor magistracies, the plebeian aedileship,
tribunate, and quaestorship gave no such right as yet; although, as we might
expect, former holders of these offices were selected next to ex-curule
magistrates, and before such private citizens as had distinguished
themselves in war: “primum in demortuorum locum legit, qui post L.
Aemilium, C. Flaminium censores curulem magistratum cepissent, necdum in
senatum lecti essent . . . tum legit qui aediles, tribuni plebis,
quaestoresve fuerant; tum ex iis qui magistratus non cepissent, qui
spolia ex hoste fixa domi haberent aut civicam coronam
accepissent” (
Liv. 23.23). By Sulla's
time, if not before, the customary preference hitherto given to ex-holders
of the plebeian aedileship and tribuneship had been exchanged for a legal
claim both to the provisional seat and
jus
sententiae in the senate, pending the next censorial
lectio, and to formal enrolment as senators when the
time for the
lectio arrived. [These privileges
were apparently given to the tribunes by the plebiscitum Atinium (
Gel. 14.8,
2,
“senatores non essent ante Atinium plebiscitum” ), the date
of which must fall, according to Mommsen, between 123 B.C. and 102 B.C.
(Mommsen,
Staatsr. 3.862, note 2). When the plebeian aediles
obtained them is uncertain. Mommsen infers, from their inclusion in the Lex
Acilia among those “quei in senatu sient,” that they had done
so before 122 B.C. (ib. 861, note 2).] Finally, the same rights were
attached to the quaestorship by Sulla (
Tac. Ann.
11.22, “viginti quaestores creati supplendo senatui”
). But these rights had long lost all value for the holders of the higher
offices; since, owing to the gradual establishment of a fixed order of
succession to these posts, a man was presumably already a senator by the
time that he reached even the lowest curule magistracy. After Sulla, they
were of importance only for the quaestorship, which was then legally
established as the first step in the ladder of promotion. As a rule even the
tribunate was taken after the quaestorship, and its holders were
consequently already senators. The effect of these changes was practically
to destroy the magistrate's freedom of choice. He still created senators,
but as a rule the number of ex-quaestors awaiting his call, and with a legal
claim to be called, must have been sufficient to fill the vacancies, and
have left no room for others. Of senators admitted by free selection of the
magistrate, there is no trace after 70 B.C., until
we reach the dictatorship of Caesar. The votes of the people in Comitia in
fact gave admission to the senate. (
Cic. Clu.
56,
153,
[p. 2.623]
“judicio populi Romani in amplissimum locum pervenire.” ) But
the “call” of the magistrate was still indispensable; and with
the Empire it became once more a reality. The quaestorship still retained
its right to give a seat; and it is true that the transference of the
elections for the quaestorship to the senate by Tiberius gave that body in
appearance a complete control over its own composition, and substituted
cooptation both for the free choice of the magistrate and for the votes of
the people. But it was only in appearance; for, apart from the influence
which his control of the quaestorian elections gave him, the emperor
possessed and exercised the old right of direct admission, now known as
adlectio, possibly to distinguish it from
the old periodic
lectiones of republican times
(Mommsen,
Staatsr. 2.877, note). This right, used
occasionally (see above) by the earlier emperors, was from the reign of
Nerva onwards constantly exercised. The person so admitted was assigned a
definite place on the roll, usually “inter tribunicios,”
occasionally “inter praetorios,” and in the 3rd century even
“inter consulares;” this titular rank counting as
equivalent to the actual tenure of the office itself. The increasing
frequency of these
ad lectiones indicates the use of
the method as a means of strengthening the emperor's hold over the senate,
and of promoting his friends and
protégés (Mommsen,
Staatsr.
2.877
sqq.; Vita Pert. 6, “cum Commodus adlectionibus
innumeris praetorios miscuisset;”
Vita Marci, 10, “multos ex amicis
adlegit” ).
No qualification of age or property was originally fixed by law for a seat in
the senate; but from the time when election to the quaestorship became the
normal mode of entry into the senate, the legal age for this office became
practically that for the senate also. Under the later Republic it was
consequently thirty; from the time of Augustus onwards, twenty-five (
D. C. 52.20;
QUAESTOR). A property qualification was first
introduced by Augustus, who fixed it at one million sesterces (
D. C. 54.17;
Suet. Aug.
41;
Tac. Ann. 1.75,
2.37). Under Trajan, all candidates for
office, and therefore for a seat in the senate, were compelled to invest a
third of their property in Italian land (Plin.
Epp. 6.19).
This proportion was reduced to a fourth by M. Aurelius (
Vit.
11).
It should lastly be mentioned that in the early days of the Empire the Roman
franchise was given to Gauls (
Tac. Ann.
11.23), and possibly to other provincials, without the right of
standing for office in Rome (
jus honorum; and
to such men, therefore, unless directly admitted by the emperor, the
senate-house was closed. But of this special disability no trace is found
after the reign of Claudius.
With the right of creating senators was closely connected that of removing
them (
loco movere), or omitting them from the
revised list (
praeterire). Of the mode in which
it was exercised by the kings and consuls we know nothing beyond the
statement in Festus, that, inasmuch as the magistrate then drew up the list
as he chose, no stigma attached to those whose names were left out (Festus,
p. 246: see above). It is easy to understand that the senate would resent
being so completely at the magistrate's mercy; and the Lex Ovinia, carried
as it was when the senate was slowly establishing its ascendancy (339-312
B.C.), seems to have given greater security to the senator's tenure of his
seat. By transferring the “revision of the list” to the
censors, it substituted a quinquennial for an annual revision; and though
the removal or omission of a name henceforward inflicted disgrace, this was
probably due in part to the fact that the censors, possibly under a clause
of the law, were obliged not only to be agreed in doing so (App. 1.28;
Liv. 40.51;
Cic. Clu.
43,
122), but to state in writing
their reasons for inflicting the penalty (Ascon.
in tog.
Cand. p. 84;
Liv. 39.42,
“adscriberent notas” ). The power was no doubt abused more
than once for party or personal purposes, but in the main the evidence
points to the conclusion that the arrangement gave a senator fixity of
tenure, unless he were guilty of some act, or had incurred some public
disgrace, which by law or custom disqualified him for sitting in the senate
(e. g. deprivation of his office for misconduct, loss of civic rights,
conviction in certain cases in a court of justice, gross immorality,
extravagance, &c.). After 70 B.C., when
the censors expelled a number of the unworthy members placed on the list
possibly by Sulla, the power of expulsion or omission remained in abeyance
(Sall.,
Cat. 23, gives an instance, belonging to 70 B.C.),
though Cicero in the Laws advocates its revival ( “probrum in senatu
ne relinquunto,”
de Legg. 3.3, 7). Under the Empire it came again into
exercise. The thorough “purgings” of the overgrown senate by
Augustus in 29-28 B.C., and again in 18 B.C., were no doubt exceptional (
Suet. Aug. 35;
D. C.
52.42,
54.12), as was that carried
out by Vespasian after the civil wars of 69 A.D. (Suet.
Vesp.
9, “summotis indignissimis” ). But alike at the periodic
lectiones held by Claudius, Vespasian, and
Titus as censors, and at the yearly revision of the senatorial list, not
only were the names removed of those who had vacated their seats by death,
by loss of the necessary property qualification (unless the loss, as
frequently happened, was made good by the emperor:
Tac. Ann. 1.75,
2.37,
13.34;
Suet. Nero
10), or by condemnation in a court of law; but those were also
expelled who for one. reason or another were held by the emperor to be
unworthy (
Ann. 2.48, “prodigos et ob flagitia
egentes;” 4.42, “quod in acta d. Augusti non juraverat;”
11.25, “famosos;” Suet.
Domit. 8, “quod
gesticulandi saltandique studio tenleretur:” the alternative of
voluntary, withdrawal was sometimes given,
Ann. 2.48). This
power of removal, exercised as it was with increasing freedom and even
arbitrariness as time went on, combined with the more frequent use of the
right of
adlectio completely to destroy that
practical independence of magisterial control which the republican senate
had gradually won for itself. The senate under the Principate became again
what it must have been in early days--a body of councillors, largely
selected by the chief magistrate at his discretion, and retaining their
seats at his good pleasure.
(3.) The mode in which the
lectio or revision of
the list was carried out has next to be described. Our knowledge of this
commences with the period when the revision of the senate was in the hands
of the censors, i. e. at the earliest after 339 B.C. Although the
lectio senatus was not apparently an integral part
of the census, like
[p. 2.624]the
recognitio equitnm (Mommsen,
Staatsr. 2.396, and so
Willems), it seems to have immediately preceded it (
Liv. 24.18;
27.11, &c.). It
was conducted usually by both censors jointly (
Liv.
32.7,
40.50; Willems, 1.241), though on
one occasion at least it was decided by lot which of the two should
undertake the work (
Liv. 27.11, “sors
legendi” ). The first point, down to 81 B.C., was to select the senator whose name should stand at the
head of the list as “princeps senatus” and enjoy the privilege
of giving his
sententia first. This honour
belonged by ancient custom to the oldest patrician
censorius (Liv.
l.c.; Mommsen,
Staatsr. 3.970). After 209 B.C. any patrician
censorius might be chosen irrespective of seniority.
From the time of Sulla onwards, it is not clear that any
princeps senatus in the old sense was appointed: the list in
the Ciceronian age was possibly headed by the senior consular, and at any
rate the post, if it survived at all, must have been deprived of most of its
importance by the change made in the order of taking the
sententiae, which took away from the princeps the privilege
of being asked first (Varro, ap.
Gel. 14.7;
Willems, 1.114, maintains not only that
principes
senatus existed after Sulla, but that they were no longer
necessarily patricians. Indeed, the three whose names he gives--Q. Lutatius
Catulus, P. Servilius Vatia, and Cicero--were all plebeians. But his
arguments are not conclusive). Under the Empire, the emperors, following the
example of Augustus (
Mon. Anc. Gk. 4, 2,
πρῶτον ἀξιώματος τόπον τῆς συνκλήτου),
placed their own names at the head of the list, though only in the case of
Pertinax (
D. C. 73.4) was the old title
princeps senatus revived. The
princeps senatus chosen, the old list of the senate was gone
through, the names of deceased members or of those legally disqualified
struck out, those who had risen to higher office in the interval placed in
their proper position; and finally, any whom the censors judged unfit,
struck off the roll. the
lectio of 216 B.C.
there were no such erasions, but this was exceptional (
Liv. 23.23).] The vacancies were then filled up according to the
order described above, though here again the censors might pass over one or
more of the legally qualified claimants. In the completed list the senators
were arranged according to their official rank, from the
dictatorii and
censorii down to the
quaestorii; those, if there were any, who
had held no office, being no doubt placed last. Down to the time of Sulla,
the patricians in each magisterial category took precedence of the
plebeians; in the post-Sullan period, the members of each category were
arranged simply by official seniority (Mommsen,
Staatsr.
3.968; Willems, 1.259). Under the Empire a senator might obtain precedence
by the grant of the
jus trium liberorum, and
earlier still by the successful prosecution in a public court of a senator
higher in rank than himself, whose place he took (Mommsen,
l.c. 971;
D. C. 36.40).
Those persons directly admitted (
adlecti) by
the emperor, among the praetorii or tribunicii, were properly placed below
the genuine ex-praetors or ex-tribunes (
Vit. Pertin. 6). The
list when made up was in Republican times read aloud from the rostra (
Liv. 23.23); under the Empire it was regularly
published (
D. C. 55.3). It held good until the
next revision, i. e. under the Republic, until the next censors came into
office. Under the Empire the revision was annual (Dio Cass.
l.c.). The official name for the list, “album
senatorium,” first occurs in Tacitus (
Tac. Ann. 4.42).
III.
Composition and Character of the Senate.--The first
important change in the composition of the senate must have been effected by
the admission of plebeians--a measure ascribed by tradition to Brutus, and
certainly anterior to their admission to the consulship. With the opening of
the magistracies to plebeians, and the additions made to the list of
magistracies giving a legal claim to a seat, the plebeian element in the
senate grew in strength; and at the close of the Punic wars largely
outnumbered the patrician. (See the calculations made by Willems, i. pp. 285
sqq.) The question then arises, how far any
distinction was maintained as regards rights and privileges between these
two elements? That the interrex was necessarily, and the princeps senatus
customarily, a patrician, is certain (see above and art.
INTERREX), as also that on the
roll patrician senators took precedence of plebeian senators of equal
official rank. But on two points there is a division of opinion: (1) Were
the functions of appointing the interrex (
prodere
interregem) and of ratifying votes of the assembly (
patrum auctoritas) reserved exclusively for
patrician senators? (2) Were plebeian senators at any time without the right
sententiam dicere? The first question is
answered in the affirmative by Mommsen (
Röm.
Forschungen, 1.218;
Staatsr. 3.871) and Madvig
(
Verfass. 1.233, 496); in the negative by Willems (2.1
and 33. See also
INTERREX).
The difficulty. in the way of a decision is increased by the ambiguous sense
in which the term
patres is used by ancient
writers, and by the fact that while the appointment of interreges had become
extremely rare during the period to which our best authorities (Cicero,
Livy) belong, the
patrum auctoritas had long
before that time been reduced to a meaningless form (by the Lex Publilia,
339 B.C.). The most probable view on the whole seems to be that, while both
acts belonged originally to the senate as a purely patrician body, they were
in later times performed by the patricio-plebeian senate as a whole. [Cf.
the extension of the term
patres to cover the
whole senate, and the retention of the phrase
patricii
magistratus for the curule offices long after these had been
opened to plebeians (
Cic. ad Brut. 1.5).
It is only in connexion with the three earliest interregna under the
Republic that Livy speaks of
patricii (3.40,
4.7, 4.43: 421 B.C.). On later occasions he speaks always of
patres, as does Cicero throughout The
patrum auctoritas is never expressly connected with
the
patricii. For a full discussion, see
Willems,
l.c., and
INTERREX] The second question admits of a more
confident answer. It is agreed on all hands that in post-Sullan times no
distinction is traceable between patricians and plebeians as regards the
right
sententiam dicere, and that the term
pedarii had no legal value, but merely
denoted the lower ranks of senators (i. e. in fact the
non-curules), whose names, from want of time, were rarely
reached in taking the
sententiae, and who were
therefore, as a rule, obliged
pedibus ire in sententiam,
[p. 2.625]i.e. to cross to one side or the other of the
senate-house. [
Gel. 3.18, “qui in alienam
sententiam pedibus irent.” The explanation of the term quoted in
the same passage from Gavius Bassus (1st century A.D.), “Senatores qui
magistratum curulem nondum cepissent
pedibus
itavisse in curiam,” though in fact
non-curules and
pedarii
coincide, is a bad guess, which, strangely enough, Willems accepts (
op. cit. 1.137). The confusion which follows between
the
pedarii and the ex-curule magistrates
“nondum a censoribus lecti” is probably due to Gellius
himself. The latter class were not senators, but had the
jus sententiae dicendae; the
pedarii were senators, but in practice were unable
sententiam dicere. The confusion is repeated in
Lewis and Shortt's Latin Dict. The sense of inferiority associated with the
pedarii in the senate sufficiently explains
the “equites pedarii” of Varro (=common or inferior equites).]
But Mommsen, while agreeing that in the Ciceronian age
pedarius was merely a conventional epithet describing the
actual but not the legal position of the lower senators, holds that in
earlier times the term had a statutable meaning, and denoted “plebeian
senators directly admitted by consuls or censors, as distinct from those
qualified by office” --a class which ceased to exist after 81
B.C. These plebeian senators were, he thinks, legally incapable of
delivering
sententiae, and only allowed to vote
(
pedibus ire). The objections to this
theory are: (1) That no such distinction can be drawn between the right
sententiam dicere and the right to vote.
For the Roman senator, the
sententia and the
vote were the same thing, though the
sententia
might be given in different ways, of which the
pedibus
ire was one [see below under Procedure]. (2) That though there
were certainly at one time men in the senate with the
jus
sententiae who were not senators, there is no evidence of the
existence at any time of senators without this right. (3) There is no proof
that there was ever a legally distinct class of
pedarii, or that the term had ever any other meaning than that
which it bore in the Ciceronian age.
The admission of plebeians has been assigned to the early days of the
Republic; the period from the Lex Ovinia to the dictatorship of Sulla
witnessed another change which stood in close connexion with the growing
ascendancy of the senate in the political system. The class of senators
freely chosen by the magistrate as distinct from those whom election to
office had given a legal claim on his call, gradually disappeared (
Cic. de Legg. 3.1. 2,
“neminem in summum locum nisi per populum venire” ), and
the senate came to be composed entirely of actual and ex-officials, to the
exclusion of lay interests and opinions--an exclusiveness intensified by the
extent to which from 200 B.C. onwards the official class was recruited from
a single section of Roman society, that of the
nobiles. In Cicero's day the only working classification of
senators was classification by official rank.
Further changes followed under the Empire. The class of those who, while
awaiting the next
lectio, were permitted to sit
in the senate and give
sententiae (see above),
must have ceased to exist, when the yearly revision enabled the emperor to
call them up immediately on the expiry of their year of office. On the other
hand, though the official classification continued, and even those directly
adlecti by Caesar were placed in one
official category or another, and though the majority of senators as a rule
entered by the old official door, the quaestorship, the increasing number of
the
adlecti unquestionably served not only to
strengthen the emperor's control over the senate, but to widen the area from
which its members were drawn. The effect of Vespasian's admission of
numerous Italians and provincials is specially noticed by Tacitus (
Tac. Ann. 3.55, “novi homines e
municipiis et coloniis atque etiam provinciis--domesticam parsimoniam
intulerunt.” Senators from the eastern provinces are very rare
before the 2nd century). But while in this way the senate became in its
composition more representative of the whole Empire, a narrowing effect was
exercised by the tendency to confine the senatorial dignity to a particular
class, by making it hereditary. The way for this latter change was prepared
in the last century of the Republic. In the time of Cicero, the male members
of the great families passed into the senate through the quaestorship,
almost as a matter of course. The son of a senator was expected and as a
rule did thus qualify himself for senatorial rank; and Cicero contrasts the
senatorial and official career proper to young nobles, with the quieter and
less ambitious course marked out by custom for members of the equestrian
order (
Cic. Clu. 56,
153). But as yet the son of a senator had no legal claim to be
himself a senator, nor did he as such enjoy any legal distinctions or
privileges. Even the phrase
ordo senatorius is
usually limited in meaning to the actual senate (Mommsen,
Staatsr. 3.459). Julius, it is true, extended the restriction
on foreign travel from senators to their sons (
Suet.
Jul. 42); but from Augustus dates the first attempt to make the
senatorial dignity formally hereditary, and to give the
ordo senatorius, as distinct from the senate, a legal
existence. According to his regulations, the sons of senators were
authorised to assume the broad stripe (
latus
clavus) on the assumption of the toga virilis, and to attend
meetings of the senate (a revival of an ancient custom,
Gel. 1.23). They entered the army as
tribuni
militum or
praefecti alarum, and
were distinguished from other young officers as
laticlavii (
Suet. Aug. 38,
“liberis senatorum, quo celerius reipublicae assuescerent,
protinus a virili toga, latum clavum induere et curiae interesse
permisit, militiamque auspicantibus non tribunatum modo legionum, sed et
praefecturas alarum dedit . . . binos plerumque laticlavios praeposuit
singulis alis.” The ordinary
trib. mil.
were
angusticlavii,
Suet. Otho 10). From military service they
passed on to the quaestorship and a seat in the senate. That under the
earlier emperors this career was morally incumbent both on senators' sons
and on other young men, to whom the emperor had granted the latus clavus,
seems certain (they are described as
honores petituri:
Plin. Ep. 8.14;
D. C.
59.10,
ἐπὶ τῇ τῆς βουλῆς
ἐλπίδι), but there is no proof that in the 1st century A.D. it
was legally necessary. [We hear of several cases in which a man either
declines to assume the latus clavus, or discards
[p. 2.626]it after a time. Suet.
Vesp. 2, “latum clavum din
aversatus” (Vespasian);
Tac. Ann.
16.17, “Mela petitione honorum abstinuerat;”
Hist. 2.86, “prima juventa senatorium
ordinem exuerat;” Ovid,
Ov. Tr.
4.10,
35. Claudius, however, as censor
took a strict view of the obligation (
Suet. Cl.
24, “senatoriam dignitatem recusantibus equestrem quoque
ademit.” Augustus, at the
lectio, in
B.C. 13, compelled qualified persons under 35
“βουλεῦσαι”
(
D. C. 54.26).] A further
illustration of the same policy is the enactment due to Augustus prohibiting
both senators and their sons from marriage with
libertinae (Lex Papia Poppaea,
Dig.
23,
2,
23). The
development of the policy by the emperors of the 2nd century cannot be
traced in detail. At the close of that century, however, we find the two
orders, senatorial and equestrian, clearly and sharply distinguished. Each
has its own privileges. The careers appropriate to the members of each order
are different, and the passage from one to the other difficult and rarely
made. [EQUITES; PRINCIPATUS; PROCURATOR.]
Suetonius already contrasts “senatoria et equestria officia,”
Galb. 15; cf.
Vita Commodi, 4,
“per laticlavi honorem a praefecturae (sc.
praetorio, an equestrian office) administratione
summovit.” By the lawyers of the early part of the 3rd century
senatorial rank is treated as strictly hereditary. Not only the sons, but
the grandsons of senators are born into the senatorial order, and cannot
escape either the honours or the burdens attached to the
dignitas senatoria. Neither posthumous birth, nor adoption
into a family of lower rank, affects their position (
Dig.
7,
35,
9,
7). As Mommsen has well said (
Staatsr.
3.467), the senatorial order took the place as a hereditary nobility of the
nobiles of the later Republic, as they had
in their turn superseded the patriciate. [For the distinctive privileges and
liabilities of the senatorial order as thus constituted, see the next
section;--for its general position, cf. Mommsen,
Staatsr.
2.865, 3.466; Madvig,
Verf. 1.123
sqq.; Friedländer,
Sittengesch. 1.197
sqq.]
IV.
Insignia, Privileges, &c.--In Republican times
the senator bore no distinctive title, for “senator Romanus”
was never like “eques Romanus” in official use. The title of
courtesy
clarissimus, though not unfrequently
applied to senators at an early date, was first formally assigned to them in
the 2nd century A.D. (Mommsen,
Staatsr. 3.565), and then or
soon afterwards extended not only to their sons, but to their wives and
daughters. The outward insignia of the senator were always the broad purple
stripe on the tunic (
latus clavus) and the red
sandals (
calcei) with the crescent-shaped
buckle (
luna), and the leathern thongs wound
round the leg (
lora). The former of these
insignia was possibly not older than the Gracchan period (
sero,
Plin. Nat. 33.29); the latter were
originally the distinctive mark of the patrician. Under the Empire the latus
clavus was assumed by a senator's son on reaching manhood; while the red
sandals were worn even in childhood (
Stat. Silv.
5.2,
28). Separate seats in the
theatre were first assigned to senators in 194 B.C. (
Liv. 34.44), and at the shows in the circus by Claudius (
Suet. Cl. 21). A variety of fresh distinctions
were conceded as the senatorial order under the Empire increasingly assumed
the character of a hereditary peerage, e. g. the right of
entrée to the imperial presence (
D. C. 57.11), and of banquets at the public cost (
Suet. Aug. 35), the use of covered carriages by
their wives (
D. C. 57.15), of silver plating
upon their own vehicles (
Vit. Sev. Alex. 43), and of running
footmen (cursores,
Vit. Aurel. 49). In the 3rd century A.D., and probably earlier still, they were exempt
from all burdens, though still eligible for
honores in their own municipia (
Dig. 50,
1,
23, “municeps
esse desinit senatoriam adeptus dignitatem, quantum ad munera: quantum
vero ad honorem, retinere creditur originem;” cf. the omission in
inscriptions of senators of their place of domicile; see Mommsen,
Staatsr. 3.2, 887, note 1). Though subject, like other
citizens, to the ordinary law, they were outside the jurisdiction of
municipal authorities. From Hadrian dated the custom for the emperor to
summon only senatorial assessors to sit with him in judgment on a senator
(
Vit. Hadr. 8), a practice revived by Severus Alexander
(
Vit. 21, “ne quis non senator de Romano senatore
judicaret” ). But the increased outward dignity of their position
under the Empire brought with it not only increased risk under the worse
emperors, but increased liabilities and restrictions. Their exclusion from
trade and from taking state contracts, as also their liability and that of
their sons to prosecution under the
leges de
repetundis, date from republican times (Lex Claudia,
Liv. 21.63: cf.
Dig. 50,
5; Lex Acilia de pec. repet. 2; Bruns,
Fontes jur. Rom. 54;
Cic. Clu.
55,
150). In addition, Severus
Alexander forbade them to lend money except at a low rate of interest
(
Vit. 26). The prohibition issued in Tiberius' reign
against intercourse with stage-buffoons (
Ann. 1.77) was, like
that against marriage with
libertinae, intended
to preserve the dignity of the order. But Claudius's edict forbidding
praetorian guardsmen to attend the morning levees of senators (
Suet. Cl. 25) was no doubt provoked by the same
jealousy of senatorial interference with the army, which finally led to
their exclusion from military commands and from the camps by Gallienus
(Victor.
Caes. 33). The separate taxation of senators did not
exist as a system before Diocletian (Mommsen,
Staatsr. 3.2,
900 f.). The costly obligation of providing games was a magisterial rather
than a senatorial burden. [LUDI; PRAETOR;
QUAESTOR. For the privilege originally enjoyed by senators of voting in
the
equitum centuriae, and for their duty of
serving as judices in the
quaestiones
perpetuae, see COMITIA; JUDEX;
QUAESTIO.]
V.
Procedure.--The right to hold a meeting of the senate
(
senatum habere), to consult it (
consulere, referre, relationem facere), and to carry
a decree (
senatusconsultum facere) belonged in the
Ciceronian age to consuls, praetors, and tribunes of the plebs; but if all
were present in Rome together, they could only exercise it in the above
order of precedence. The right no doubt attached to the consulship and
praetorship from the moment of their establishment. It was acquired by the
tribunate at some period previous to the plebiscitum Atinium (? before 133
B.C.). The right was also given to the dictator, interrex,
[p. 2.627]and praefectus urbi. [See the classical passage,
Gel. 14.7,
8,
“Primum ibi ponit (Varro) per quos more majorum senatus haberi
soleret, eosque nominat, dictatorem, consules, praetores, tribunos
plebi, interregem, praefectum urbi . . . tribunis plebi senatus habendi
jus erat quamquam senatores non essent ante Atinium plebiscitum.”
] Any one of these magistrates could be prevented from exercising the right
by the interference of a colleague, or of a superior, or of a tribune. [INTERCESSIO; TRIBUNUS.] In the earlier times, when
the consuls were frequently absent from Rome in the field, the duty of
convening the senate constantly developed upon the praetor urbanus (
Liv. 22.7;
26.21;
42.8, &c.). In the Ciceronian age, it is
regularly performed by the consuls (
Cic. Fam.
12.2. 8;
CONSUL).
Augustus in 23 B.C. was specially empowered to hold a senate as often as he
would, even when not consul (
D. C. 54.3), and
the power was continued to his successors (Lex de Imp. Vesp. 2,
“utique ei senatum habere . . . . liceat, ita uti licuit divo
Augusto,” &c. Tiberius before he was formally invested
with this power convened the senate “tribuniciae potestatis
praescriptione sub Augusto acceptae,”
Tac. Ann. 1.7). But even under the emperors
it was usually the consuls who convened the senate and presided at its
meetings (Plin.
Epp. 2.11, “princeps praesidebat erat
enim consul;” cf. Id.
Paneg. 76).
The magistrate who convened the senate determined also the place of meeting,
subject, however, to certain conditions. A lawful senate could only be held
in a
templum, and, except in special cases,
within the pomerium (
Gel. 14.7, “in loco
per augurem constituto, quod templum appellaretur:” see
TEMPLUM). Among the ordinary
meeting-places of the senate in republican times were the Curia Hostilia and
the temples of Concord, of Castor, of Jupiter Stator, and of Tellus. The
senate could be convened outside the pomerium, but “intra milia
passuum,” if either embassies from states not in alliance with
Rome or a pro-magistrate [PROCONSUL; PROPRAETOR]
were to take part in the proceedings (Mommsen,
Staatsr. iii.,
930. As meeting-places outside the pomerium, the temples of Apollo and of
Bellona are mentioned:
Liv. 34.43;
Cic. Fam. 8.4;
Plut.
Sull. 30).
The senate could not be summoned to meet before sunrise or sit after sunset
(
Gel. 14.7). But under the Republic there
were no fixed days for its meetings any more than for those of the Comitia.
Augustus first enacted that there should be two regular meetings held in
each month (
Suet. Aug. 35, “ne plus
quam bis in mense legitimus senatus ageretur Kal. et Idibus,”
D. C. 55.3). Nor is it clear that in early times
there were any days on which a senate could not be lawfully held. But by a
Lex Pupia, the date of which Mommsen fixes at about 154 B.C., the magistrates were apparently forbidden to hold a senate
upon any day actually appointed for Comitia, or possibly upon any of the
days on which Comitia might legally be held (
dies
comitiales,
Cic. Fam. 1.4, “senatus haberi ante
Kal. Febr. per legem Pupiam . . . non potest;” Id.
ad Q.
Fr. 2.2, “consecuti sunt dies comitiales per quos senatus
haberi non potest:” cf
ad Fam. 8.8; Mommsen,
Staatsr. 3.921-923).
The usual mode of summoning the senate (
cogere
senatum) was by a proclamation issued by one or both the consuls,
naming the date and place of meeting, and occasionally stating the special
business to be considered (
Liv. 28.9,
“praemisso edicto ut triduo post senatus ad aedem Bellonae
adesset;”
Suet. Jul. 28, “edicto praefatus se
summa de republica relaturlum;”
Cic. Fam. 11.6, “quam edixissent . . .
senatus adesset” ). The procedure was the same if the magistrate
concerned was a praetor or tribune. The magistrate was empowered, if
necessary, to compel the attendance of senators by taking pledges for their
attendance, or by fining those who failed to appear (Gell. xiv, 7;
Cic. de Legg. 3.4,
Phil. 1.12); but this power was, it would seem, sparingly
exercised under the later Republic, and the increased numbers of the senate
after 81 B.C., added to the fact that no quorum
was required by law, gave little occasion for its use. Under the Empire it
was otherwise. Augustus found it necessary not only to fix a quorum (
D. C. 55.3: see below), but to increase the
penalties for non-attendance (
D. C. 54.18), and
Claudius did the same (
D. C. 60.11: cf.
Tac. Ann. 16.27, “patres arguebat(Nero)
quod publica munia desererent” ).
On the assembling of the senate, usually in the early morning, the senators
took their seats, as they chose, upon the benches (
subsellia) ranged in rows to the right and left of the curule
chairs of the presiding magistrates; the latter being so placed as to face
the door of the house. [Mommsen,
Staatsr. 3.932, has shown
that under the Republic neither the ordinary senators nor, as Willems
(2.173) maintains, the magistrates generally, had any special or fixed
seats.] Under the Empire the emperor's chair was placed between those of the
consuls (this seat was first assigned to Augustus in 19 B.C.:
D. C. 54.10); and separate seats were assigned
to the praetors., tribunes, and possibly to the other magistrates (Mommsen,
op. cit. p. 934). The proceedings opened with a
sacrifice, followed by the inspection of the victim's entrails (
Gel. 14.7; Mommsen,
op.
cit. p. 935).
The magistrate who summoned the senate also presided at its meetings, and it
is he who, subject to certain customary rules, determines what business
shall be laid before the house and in what order. It was his duty, in the
first place, to communicate to the senate any news of importance, to read
despatches received from officials abroad, and to introduce provincial or
foreign deputations (Caesar,
B.C. 1.2;
Cic. Fam. 10.1. 2,
3;
Liv. 44.20,
21). On his demand, or with his permission,
any individual senator might similarly read letters, communicate
information, or make a statement to the house. The same privilege belonged
to praetors and tribunes, as having the right to consult the senate, even
when not actually presiding.
The magistrate might follow up these preliminary communications by referring
one or more of the points raised to the senate for its opinion, and the
senate not unfrequently demanded by acclamation that such a reference should
be made. It rested, however, with the magistrate to decide whether or not
this further step should be taken (
Liv. 30.21,
“conclamatum ex omni parte curiae est, uti referret
[p. 2.628]P. Aelius praetor;” ib. 42.3, “ex
omnibus partibus postulabatur ut consules earn rem ad senatum referrent;”
Cic. Fam. 10.1. 6; Caes.
B.C. 1.1, “ut ex litteris ad senatum referretur,
impetrari non potuit” ).
The formal consultation of the senate (
relatio)
was governed by a variety of customary rules. After, usually, an explanation
of the business in question ( “verba facere,”
Cic. Fam. 8.8;
Phil. 8.14,
&c.), the magistrate asked the senate “quid de ea re fieri
placet,” without himself submitting a definite proposition (
Sal. Cat. 30;
Cic.
Cat. 1.1. 0, 3.13). Occasionally the
magistrate indicated his own view (
Liv. 39.39,
“sibi nisi quid aliud eis videretur in animo esse . . . comitia
habere.” For instances of a definite proposition, see
Suet. Jul. 28, “rettulit ad senatum ut ei
succederetur;”
Cic. Phil. 1.1, “scriptum
senatusconsultum quod fieri vellet attulit;” cf.
Cic. Phil. 10.17). It is significant of the
more dependent position of the senate in relation to the emperor that the
latter, when consulting the senate, usually made at the same time a definite
proposal (see below). The reference to the senate might either be general (
“infinite de republica,”
Gel. 14.7; cf.
Liv.
26.10, “de summa republica consultatum” ) or special (
“de singulis rebus finite,”
Gel. 14.7;
Cic. Phil.
7.1, “de Appia Via et de Moneta” ), and the senators
might, in giving their
sententiae, express a
wish for the separate reference of some particular question (
Cic. Phil. 10.2. 4, “de M. Appuleio
separatim censeo referendum,”
ad Fam. 8.8, “ne quid conjunctim referatur” ).
Custom again prescribed in general terms the order in which the business
should be taken: “de rebus divinis priusquam humanis ad senatum
referendum esse” (
Gel. 14.7; cf.
Liv. 22.9, “ab diis orsus--tum de bello deque
republica” ); but here again the practice at least of the later
Republic allowed a certain weight to the wishes of the senators themselves,
who might either directly demand urgency for a particular question (
Cic. Fam. 10.1. 6, “flagitare senatus
institit . . . ut referret
statim”
), or indirectly force the magistrate's hand by refusing to give opinions
upon any matter until the desired point had been submitted to them (
Cic. Att. 3.2. 4, “senatum nihil
decernere, antequam de nobis actum esset;”
in Pison. 13, 29, “quum quacunque de re
verbum facere coeperatis aut referre ad senatum, cunctus ordo
reclamabat, ostendebatque, nihil esse vos acturos, nisi prius de me
rettulissetis” ). The right of reference (
jus
referendi, consulendi senatum, cum patribus agendi) belonged,
exclusively of extraordinary magistrates, to consuls, tribunes of the plebs,
and praetors; the latter, however, do not appear to have exercised it except
in the absence of the consuls. As between consuls and tribunes, the consul's
business took precedence, though it would seem from
Cic. Phil. 7.1, that if the questions were small ones, the
references of both consuls and tribunes might be put conjointly to the house
( “de Appia Via et de Moneta consul; de Lupercis tribunus plebis
refert” ). To the emperors a special right of reference, as of
convening the senate, was granted by statute, in addition to that which they
possessed in virtue of the
tribunicia potestas.
This right, granted to Augustus in 23 B.C. on his resignation of the
consulship (
D. C. 53.32), and confirmed to his
successors (Lex Vespas. 2, Bruns, 128), invested him with the power of
making the first
relatio (
περὶ ἑνός τινος, Dio Cass.
op.
cit.) at each meeting of the senate, and was afterwards extended so as
to enable him to make four and even five
relationes before the regular magistrates took their turn (
“jus quartae relationis,”
Vit. Pert. 5; “quintae relationis,”
Sev. Alex. 1; cf. Pelham,
Journal of
Philology, xvii. pp. 41, 42). At first at any rate the emperor, like
the consul, made his
relatio in person; or, if
unable to do so, communicated it in writing through the consuls (Tiberius,
Dio Cass. lviii, 11; Nero,
Suet. Nero 15).
But from the close of the first century onwards the practice, occasionally
adopted by Augustus (
D. C. 54.25) and by
Claudius (Id. 60.2), of employing the
quaestor
principis as the emperor's mouthpiece, became the regular one (QUAESTOR: cf. Digest
1,
13,
1,
“quaestores . . . libris principalibus in senatu legendis
vacant;” ib. 4, “quique epistulas eius in senatu legunt”
). The
relationes of the emperor thus took the
form of written “speeches” (
orationes) or “letters” (
litterae, epistulae), and are usually referred to as such
(
Suet. Tit. 6;
Dig.
23,
2,
16,
&c.).
The formal introduction of the business was followed, not by a debate, in the
modern sense of the word, but by the taking of the
sententiae (
sententias rogare,
perrogare) of the individual senators in order. Just as the senate was
in theory only a council of advice consulted by the magistrate, so the
senator's one duty was to give his opinion (
sententiam
dicere), and technically in this one act both speech and vote
were included. But, as we shall see, considerations of convenience, as well
as the growing tendency to treat the senate's expression of opinion as a
positive decision, developed in practice a process of counting votes
actually, though not theoretically, distinct from the taking of
sententiae.
The magistrate, in taking the
sententiae, was
expected to follow a well-established order of precedence, corresponding in
the main to that observed in the official roll (see above). Down to the time
of Sulla, the first
sententia taken was that of
the
princeps senatus. In the Ciceronian age the
magistrate might select for this honour any consular, subject only to two
restrictions, as (1) he was expected to adhere to the order adopted by him
on his first day of office; (2) after the consular elections, i. e. during
the latter half of the year, he was bound to give the priority to the
consuls-designate. The other consulares were taken next, usually in order of
seniority; after them the praetorii, aedilicii, &c. [It is possible
that in earlier times, before senatorial ascendancy was well established,
the magistrate's discretion in this respect was wider (Mommsen,
Staatsr. 3.974). The classical passage on the
ordo sententiarum is Varro, ap.
Gel. 14.7, “singulos autem debere consuli gradatim,
incipique a consulari gradu, ex quo gradu . . . antea primum rogari
solitum qui princeps in senatum lectus esset, tum autem cum haec
scriberet . . . ut is primus rogaretur, quem rogare vellet qui haberet
senatum, dum is tamen ex gradu consulari esset;” cf. ib. 4.10;
Suet. Jul. 21, “post novam
adfinitatem Pompeium primum rogare sententiam coepit” (Caesar).
For the
consules designati, comp.
Sal. Cat. 50: “Silanus primus sententiam
rogatus quod eo
[p. 2.629]tempore consul designatus
erat;” and
Cic. Fam. 8.4;
Tac. Ann. 3.22.] The right to give an opinion,
jus sententiam dicendae, belonged to all
senators, excepting only the magistrates of the year; the latter being in
theory the consulting and not the consulted parties (
Liv. 8.20; Willems, 2.189). It was only when the emperor made a
relatio in virtue of his special powers,
that the
sententiae of magistrates were taken
(
Tac. Ann. 3.17;
Hist. 4.41). But every magistrate could at any moment
interpose with a speech on the subject in hand. [Mommsen,
Staatsr. 3.943. The same author holds that in earlier days
plebeians directly admitted to the senate by consuls or censors, without
having held a qualifying magistracy, had no
jus
sententiae dicendae (
Staatsr. 3.963), but could
merely take part (
pedibus eundo) in the final
discessio. Of this, however, there is no
sufficient evidence.] The question was put to each senator in turn in the
simple form “die M. Tulli (quid censes)” (
Liv. 1.32;
Cic. Att. 7.1), but
the modes of reply were various. (1) The senator might rise, discuss the
question in a set speech, and close with a formal statement of his opinion,
so worded as to form the basis of a decree ( “stantem sententiam
dicere,”
Liv. 27.34;
Cic. Att.
1.1. 4, “surrexit, ornatissimeque locutus est.” For
the form of the closing statement of opinion, comp.
Phil.
14.29, “decerno igitur,” &c.; ib. 10.25, “quod
consul . . . verba fecit de litteris de ea re ita censeo;” ib.
5.46, “ita censeo decernendum” ). It was occasionally drafted
in writing beforehand (
Phil. 3.20). This method was that
which, in cases of any importance, consulars and other prominent senators
were expected to adopt (
Liv. 27.34). (2) He
might, without rising, express his agreement with some previous
sententia, either
verbo
(
Cic. Att. 7.3, “dic M. Tulli:
σύντομα, Cn. Pompeio
adsentior” ), or by a nod, or by holding up his hand ( “verbo
assentiebatur;”
Liv. 27.34; cf.
Sal. Cat.
52, “sedens assensi;”
Cic. Fam. 5.2). (3) He might cross over to
the side of a senator with whose opinion he agreed ( “pedibus ire in
sententiam,”
Liv. 27.34;
Cic.
ad Q. Fr. 2.1, 3;
Vit.
Aureliani, 20, “interrogati plerique senatores sententias
dixerunt . . . deinde aliis manus porrigentibus, aliis pedibus in
sententias euntibus, plerisque verbo consentientibus” ). By this
method, a senator who had already given his
sententia at length, might indicate that he had changed his mind
(
Sal. Cat. 50, “Silanus . . . primus
sententiam rogatus . . . decreverat: isque postea permotus oratione G.
Caesaris pedibus in sententiam Tiberi Neronis iturum se dixerat”
).
In strictness this orderly taking of opinions on business introduced by a
magistrate precluded both the introduction of fresh matter by those
consulted, and also any debate in the modern sense of the word. But, in the
Ciceronian age, custom sanctioned a freedom of speech really inconsistent
with the theory of the procedure. For a senator, when asked for his opinion
on a particular point, to seize the opportunity to deliver a lengthy oration
on some wholly irrelevant matter, was a privilege thoroughly well recognised
and frequently exercised ( “egredi relationem,”
Gel. 4.10;
Tac. Ann.
2.38,;
Cic. Fam. 10.2. 8,
“quum tribuni plebis. . .de alia re referrent, totam rempublicam
sum complexus” ). It was indeed the only means open to the
senator of forcing upon the attention of the senate subjects which the
magistrates were unwilling formally to bring before it (
Cic. Phil. 7.1, “parvis de rebus
consulimur . . . tamen animus aberrat a sententia, suspensus curis
majoribus” ). That the presiding magistrate could not compel a
senator to speak to the question is clear, and it is doubtful how far he was
able to limit the duration of his speech. According to Ateius Capito (
Gel. 4.10), a senator could say, “quicquid
vellet . . . et
quoad vellet;” and
several instances are recorded in which a measure was, as we should say,
“talked out” (
Cic. Att. 4.3,
“calumnia dicendi tempus exemit;”
Gel. 4.10, “eximebat dicendo diem;”
cf.
Cic. Att. 4.2,
ad Q. Fr.
2.1, 3). One instance only is recorded in which the presiding magistrate
exercised his authority to check this abuse, and then the feeling of the
house was decidedly against him (Caesar's arrest of Cato,
Gel. 4.10). On another occasion the senate by
resolution decided that the speeches should be brief (
Cic. Fam. 1.2). The
altercationes, which were not infrequent in the Ciceronian
age, were certainly out of order, but were as certainly tolerated (Mommsen,
Staatsr. 3.947; Willems, 2.191).
The theory of the procedure unquestionably implied that the magistrate took
the sense of the house on the matter which he had laid before them, by
asking each senator in turn to give his opinion (
perrogare sententias); and there is no evidence that he could, by
any form of closure, abridge the process (Mommsen,
Staatsr.
3.983, as against Willems, 1.194). It is also possible that in the early
days, when the senate was still a subordinate and purely consultative body,
the sense of the house as expressed in the course of this process was taken
as sufficient, and that no formal division (
discessio) followed. But when the senate became in fact the
governing council, the business before it increased in amount and
complexity, and the importance of its decisions increased also. These
changes, coupled with the rise in its numbers from 300 to 600, modified the
character of the
perrogatio sententiarum, and
necessitated a more exact method of “taking a vote,” i. e. of
determining where the majority of
sententiae
lay. (But the “voting” was not technically distinct from the
“giving an opinion;” nor is it conceivable that, as Mommsen
holds, there were senators who could vote but who were legally unable
sententiam dicere.) The accounts we have of
the procedure in the senate during the Ciceronian age, make it clear that
sententiae, in the shape of formal
proposals explained and advocated in speeches, were as a rule only given by
the highest category of senators, the consulares and praetorii, and that the
rest contented themselves with a brief assent (
verbo), or ranged themselves behind the speaker they agreed with
(
pedarii. The cases of Cato in 63 B.C., who, though only tribunus designatus, gave
the
sententia which was ultimately adopted, and
of P. Servilius Isauricus,
Cic. Att. 1.1.
9, were no doubt exceptional). On the
perrogatio followed, at least in Cicero's time, the
pronuntiatio sententiarum: where only one definite
[p. 2.630]proposal had been made; or when the sense of
the house was clearly in favour of a particular
sententia, the case was simple. But where, as in the debate
on the restoration of Ptolemy Auletes (
Cic. Fam.
1.1 and 2), several conflicting
sententiae had been given, and there was a real division of
opinion, the difficulty was considerable. It rested with the magistrate who
had made the
relatio to take the division on
such
sententiae, and in such order as he
thought best; and he might decline to put such as seemed to him inexpedient
(Willems, 2.194;
Cic. Phil. 14.2. 2), or
to be covered, or better expressed by others (
Cic. Att. 12.2. 1, “cur ergo in sententiam Catonis, quia
verbis luculentioribus et pluribus rem eandem comprehenderat” ).
As a rule, however, the
sententiae were put to
the vote in the order in which they had been given. If the first was
carried, the rest, if inconsistent with it, naturally fell to the ground. A
single
seenentia might lastly be divided and put as
two (
Cic. pro Mil. 14,
“divisa est sententia;” cf.
ad Fam. 1.2).
The difficulties involved in the putting a variety of
sententiae to the house so as to get a clear decision are
well described by Pliny (
Epp. 8.14, “quae distinctio
pugnantium sententiarum quae exsecutio prioribus addentium,”
&c.). The
sententia once put (
pronuntiata), the magistrate took the division by
bidding the “ayes” cross to the side of the senate-house on
which its author sat, the “noes” to the other (Plin.
l.c.,
“qui haec sentitis in hanc partem, qui alia omnia in illam partem ite
. . . in hanc partem, id est in earn in qua sedet qui censuit;”
cf.
Cic. Fam. 1.2, “frequentes ierunt
in alia omnia;” Festus, p. 261). He then declared on which side
the majority was ( “haec pars major videtur,” Senec.
de
Vit. beat. 2. There is no evidence of any actual counting of
heads, any more than when the Speaker in the English House of Commons
declares that the “ayes” have it: Mommsen,
Staatsr. 3.993).
Such was the regular order of procedure. But in certain cases the
perrogatio sententiarum might be dispensed with, and
a division taken at once (
senatusconsultum per
discessionem facere). This, however, was only allowable where the
business was formal, or where no difference of opinion existed (Varro, ap.
Gel. 14.7, “senatusconsultum fieri
duobus modis aut per discessionem si consentiretur, aut si res dubia
esset, per singulorum sententias exquisitas;” cf.
Cic. Phil. 3.24).
The republican order of procedure was maintained with comparatively little
change throughout the first three centuries of the Empire (cf. Plin.
Epp. viii.
14; Vit. Aurel. 20); nor can
the “lex, quae nunc de senatu habendo observatur” (
Gel. 4.10), possibly the work of Augustus, have
effected many alterations of importance. The special
jus
referendi granted to the emperor has been mentioned above. He
had also the right as a senator to give his
sententia, and to give it when he would, usually either first or
last (
D. C. 57.7;
Tac.
Ann. 1.74. The emperors after Tiberius seem never to have
exercised this right: Mommsen,
Staatsr. 3.977). The claim of
the consuls designate to be asked first disappears early in the second
century A.D. (ib. 3.976); and lastly, by Augustus, a certain quorum was
fixed as necessary for a valid
discessio. (The
exact number required is unknown: ib. 3.990;
D. C.
55.3;
Suet. Aug. 35). In practice,
however, the declining independence of the senate led to a frequent
disregard of the elaborate routine of earlier days. A body which met to
accept submissively an imperial proposal, to pass a complimentary vote, or
decide some trivial point, willingly dispensed with the routine of the
perrogatio, and its place was taken by the
undignified
adclamationes [Plin.
Epp. 8.14, “priorum temporum (sc. under Domitian)
servitus . . . etiam juris senatorii oblivionem quandam et ignorantiam
induxit,” cf.
Paneg. 54, 75, 76; “consulti
omnes atque etiam dinumerati sumus” (under Trajan). For the
adclamationes, cf. Mommsen,
op. cit. 3.951, note 2, and the Script. Hist. Aug.
passim, especially
Vit. Alex. Sev. 6, 7;
Vit.
Taciti, 5].
The
relationes of the magistrates once disposed
of by the
perrogatio and
discessio, the presiding magistrate dismissed the senate with
the words “nihil vos teneo” or “tenemus patres
conscripti” (
Cic. ad Q.
Fr. 2.2, or “nihil vos moramur,”
Vit. Marci, 10). The resolution or resolutions were then
formally drafted as senatusconsulta by the magistrate who had made the
relatio and taken the division (
“senatusconsultum perscribere,”
Cic. Cat. 3.6;
ad
Fam. 8.8) in the presence of two or more senators (
“scribendo adfuerunt,”
Cic. Fam. 8.8;
ad Att. 4.17).
If the interference of a tribune prevented the “making” of a
senatusconsultum, the resolution was nevertheless drafted as a
“senatus auctoritas” (
Cic. Fam.
8.8;
TRIBUNUS). The
regular form of the senatusconsultum ran as follows:--“Pridie Kal.
Oct. in aede Apollinis scribendo adfuerunt . . . quod consul verba fecit
de provinciis consularibus, de ea re ita censuere, uti,”
&c. (Cic. ib.). The older decrees commence with the formula
“consul (or praetor, tribunus pl.) senatum consuluit” (e.
g. Senatusconsultum de Bacchanalibus,
C. I. L. 1.196; de
Tiburtibus, ib. 1.201). Under the Empire, if the proposal carried had been
introduced by the emperor, the words were inserted “auctore
Claudio,” &c. (Senatusconsultum Hosidianum, Orelli, 3115).
Occasionally in the second century a private senator is named as the author
of the
sententia on which the decree is based
(Mommsen,
op. cit. 3.1009). The number of senators
present at the division, but not the numbers for and against, is often
stated ( “in senatu fuerunt C,”
C. I. L. viii. p. 270). The senatusconsultum thus written out
was then entrusted to the quaestors, by them placed in the aerarium and
entered in the
tabulae publicae ( “ad
aerarium deferre,”
Tac. Ann. 3.51;
Cic. Att. 13.3. 3, “liber in quo sunt senatusconsulta,”
C. I. L. viii. p. 270; “senatusconsultum descriptumn et
recognitum ex libro sententiarum in senatu dictarum,” 138 A.D.
[
TABULARIUM]. The entry
of spurious senatusconsulta was not uncommon in the last days of the
Republic:
Cic. Phil. 5.4,
12.5). Although the terms of a
senatusconsultum were communicated to the individuals or communities
interested, and occasionally to the public, by the presiding magistrate
(
Liv. 45.20; Mommsen,
op.
cit. 3.1014), no official record of the proceedings in the senate
was published until Caesar's first consulship in 59 B.C. The
acta senatus instituted by him on the model of the
acta urbana were published after each
sitting of the senate, and contained, besides the decrees
[p. 2.631]passed, some account of the various
sententiae given, &c. (
Suet.
Jul. 20, “ut tam senatus quam populi diurna acta confierent
et publicarentur.” These
acta were
distinct from the
commentarii or notes kept by
magistrates or private senators: Mommsen,
op. cit.
3.1015; Hübner,
de senatus Populique R. actis,
Leipzig, 1860).
Acta senatus continued to be
regularly compiled under the Empire, but Augustus discontinued their
publication (
Suet. Aug. 36). The duty of
compiling them was by him entrusted to one of the younger senators (curator
actorum senatus, later “ab actis senatus;”
Tac. Ann. 5.4, “componendis patrum
actis delectus a Caesare;” Orelli, 5447, “curat(or) actorum
senatus (Domitian) 2273 ab actis” (Trajan). The
“commentarii senatus” (
Tac. Ann.
15.74) are identical with the
acta.
>Extracts from the
acta were
occasionally published by order of the senate (Plin.
Paneg.
75), and the acta themselves could be consulted by privileged students.
Mommsen,
op. cit. 3.1021).
VI.
Powers of the Senate.--The patricio-plebeian senate
inherited from its patrician predecessor two important prerogatives,--those
of ratifying votes of the assembly (
patrum
auctoritas), and of appointing an interrex. The first of these had
been reduced to a meaningless form by 287 B.C. (Lex Publilia, 339 B.C.
Liv. 8.12; Lex Maenia, B.C. 338;
Cic. Brut. 14.5. 5; Lex Hortensia, B.C.
287), though as such it long survived (
Liv.
1.17). The second retained its reality, but the opportunities for its
exercise became rare as the number of the magistrates with the imperium
increased, and the necessity for declaring an interregnum more remote [
INTERREX]. Apart from these
prerogatives, the senate had constitutionally no right or duty whatsoever
but that of advising the magistrate when consulted by him.
Its members were, strictly speaking, chosen by him, and he could remove them.
Subject to certain restrictions, he convened it when and where he would. He
determined what business should be laid before it, and the duty of the
senators was merely to give their opinion on the point submitted to them.
The “senatusconsultum” was technically nothing more than a
recommendation to the magistrate (comp. the phrase in senatusconsulta
“si iis videretur” ), and its force depended on his
adoption of it (so the magistrate was said “facere
senatusconsultum;” cf. Mommsen,
op. cit.
3.995, for the older use of the term
decretum
as implying a magisterial act). It is clear, in short, that even in Cicero's
time the senate was formally dependent on the magistrate. It had no direct
relation with any department of administration, and the extent to which it
controlled affairs depended, not upon any prerogatives of its own, but upon
the readiness of the magistrate to ask its advice and to accept it when
asked. The result was that even in the period of its assured ascendancy, and
still more in the days of Cicero, the area of its activity alternately
contracted or expanded, as the attitude of the executive magistrates was
friendly and deferential or the reverse. (Comp. Cicero's description of
Antony's change of front in 44 B.C.,
Phil. 1.1: “praeclara tum oratio, egregia voluntas . .
. ad hunc ordinem res optimas deferebat . . . ecce . . . Kalendis Juniis
. . . mutata omnia: nihil per senatum, multa et magna per
populum.” ) We may safely assume (Mommsen,
op.
cit. 3.1023) that under the monarchy, and even under the early
Republic, the dependence of the senate upon the magistrature was as great in
practice as in theory, and its control of affairs proportionately limited.
But throughout the period of the great wars (300-146 B.C.) the case was
otherwise. It was by the senate that the policy and the administration of
the state were really directed; and the magistrates were, with rare
exceptions, its obedient servants, consulting it at every step, and
conceding to its advice the force of a command ( “quasi ministros
gravissimi consilii,” Cic.
pro Sest.
65, 137). The causes of the change were various. The constant wars by
keeping the chief magistrates constantly in the field threw the
responsibility for the safe conduct of affairs upon the senate; the growing
complexity of political and administrative questions rendered the senate
rather than either the assembly or the magistrate the fittest authority to
discuss and settle them; the increase in the numbers of the magistracy,
while it gave the senate additional importance as the one body which could
so organise and direct them as to secure effective co-operation, weakened
the power and diminished the self-reliance of the individual magistrate. To
these causes must be added the support afforded to the senate by its
intimate connexion with the nobility (Mommsen,
Röm.
Gesch. bk. 3, cap. 11). The precise steps by which the senate gained
this ascendancy cannot be followed in detail. In some cases where in earlier
times the magistrate had consulted the people as well as the senate, the
reference to the former was quietly dropped, and a decree of the senate was
accepted as sufficient (e. g. in the case of the
prorogatio imperii: see art.
IMPERIUM and Mommsen,
Staatsrecht,
3.1091). In others (e. g. the arrangement of the
provinciae; see
PROVINCIA), a point originally settled by the magistrates among
themselves was regularly submitted to the senate for decision. Naturally,
too, where an established custom of consulting the senate grew up, the
tendency was to claim for the senate a constitutional right to have its
advice both asked and followed. A conspicuous instance of this was the
assertion confidently made by senatorial advocates that no measure could
legally be introduced into the assembly which had not received the previous
sanction of the senate (
Liv. 14.21, “praetor
novo maloque exemplo rem ingressus erat, quod non ante consulto senatu .
. . rogationem ferret” ). It is also clear that as the senate
grew stronger, and the magistrates weaker, the original theory of the nature
and force of its senatorial decrees, as nothing but expressions of opinion
on particular cases, was lost sight of, or rather was put aside in favour of
one better suited to the facts of the case. The replacement of the older
decretum by
senatusconsultum, of the phrase
de senatus
sententia by
ex senatusconsulto, and
the introduction of the custom that the magistrate should in making his
relatio abstain from anticipating the
decision of the senate by any definite proposal, are significant
illustrations of the change (see
supra, pp. 628
f.; Mommsen,
Staatsr. 3.994 ff.). Not less so was the
tendency to regard the senate as capable by decree of suspending or
invalidating a law (e. g. the suspension of the law of appeal
[p. 2.632]by the senatusconsultum ultimum; cf. Sallust,
Sal. Cat. 29), or of enacting general
regulations for the future (Mommsen,
Staatsr. 3.2, 1230), as
distinct from special provisions for particular cases. Nor is it surprising
that the growth of senatorial ascendancy should have been accompanied by
attempts formally to emancipate the senate from the magisterial control
which, if no longer effective, was yet irksome. Thus, as we have seen, the
magistrate's freedom of choice in the
lectio
senatus was gradually destroyed (see
supra, pp. 622 f.), the infliction of penalties for
non-attendance fell into disuse (Mommsen,
Staatsrecht, 3.2,
916), and the licence
egredi relationem (see
supra, p. 629) became an established
privilege.
The limits of the authority of the senate, at the period of its most complete
ascendancy (
circa 300-133 B.C.), are not easy
to define. There were indeed certain things with which the senate had no
concern (e. g. the election of magistrates), as falling wholly and
exclusively within the domain of the people. There are others where its
interference was limited properly to a preliminary consideration, while the
final decision rested with the assembly (e. g. alterations in the
constitution, the declaration of war, the ratification of a formal treaty);
though in these cases the tendency was to depreciate the importance of, and
even to omit the second stage in, the proceeding. Finally, the ordinary
routine business of each department was as a rule left entirely to the
magistrate in charge of it. But within these limits, there were hardly any
administrative questions which the senate might not be called upon to
discuss and decide. In the first place, the growing amount and variety of
the work to be done necessitated a more systematic division and assignment
of departments than had been required in earlier days, and for this delicate
business only the senate was fitted. Year after year, from the commencement
of the Second Punic war onwards, the consuls consulted the senate
de provinciis; and the senate decided what these
should be, which of them should be consular and which praetorian. [This
division was, before 122 B.C., made at the first
meeting of the senate in the year:
Liv. 32.28
and 39.38. The Lex Sempronia de provinciis consularibus (122 B.C.) enacted
that the point must be settled before the consular elections: Sallust,
Sal. Jug. 27;
Cic.
de Prov. Cons. 17 In settling what the
provinces should be, the senate varied the arrangements as necessity
required: e. g.
Liv. 45.16, “duas
provincias Hispaniam rursus fieri quae una per bellum Macedonicum
fuerat,” Willems,
op. cit. 2.544.] It
decided further in what cases a
prorogatio
imperii was desirable (
Liv. 26.28 and
passim); and occasionally not only
determined whether a province should be consular or praetorian, but assigned
it
extra sortem to a particular individual
(apparently only in the case of praetorian provinces, Willems, 2.273, 545).
When, as was the case in the post--Sullan period, all the provinces abroad
were taken by pro-magistrates, whose imperium had been prolonged, the
duration of each command was also fixed by the senate's willingness or the
reverse to renew the prolongation at the close of each year. (Cic.
de
Prov. Consul., passim; cf.
ad Att. 5.11,
“ne provincia nobis prorogetur:” see IMPERIUM; PROVINCIA.) But the control of the senate did not end
here. It had also to determine what equipment (
ornatio) in the way of troops, money, staff, &c., should
be granted to each magistrate or pro--magistrate (
Cic. Att. 4.1. 8, “in ornandis provinciis consularibus;”
ad Q. Fr. 2.3, “de ornandis praetoribus;”
in Pison. 57, “provinciam senatus
auctoritate exercitu et pecunia instructam et ornatam” ), a right
of supply which should have been a more effective check upon the executive
than in practice it proved to be. Finally, it may be noted that the actual
administration of the various departments was, in a variety of ways, subject
to senatorial supervision. Alike at home and abroad, not only was the
frequent reference of special points to the senate required from the
magistrate by custom, but general regulations were made by senatorial decree
for his guidance. In three cases especially the control of the senate was of
great importance: in the management of the finances, in the government of
the transmarine provinces, and in the regulation of foreign affairs. (1) The
income of the Roman state was derived partly from the state property,--the
public lands, mines, fisheries, &c.,--partly from taxation. As
regards the first, although the alienation of public land by assignation
required the sanction of the people, its management was under the
supervision of the senate, which authorised surveys of its boundaries, the
leasing of lands or mines on certain conditions, and the collection of the
dues payable by the lessees. As to taxation, the imposition of a new tax
upon Roman citizens was indeed beyond the power of the senate; but inasmuch
as after 167 B.C. the burden of taxation fell on the provincials, the
restriction was unimportant. On the other hand, it was the senate which
determined what a province should pay, and in what form; which granted
exemptions, increased the amount, or altered the mode of collection. (Comp.
the senatusconsultum as to Macedonia in 167 B.C.
Liv.
45.18: see also
Cic. Ver. 3.16,
42; Mommsen,
op.
cit. 3.1120
sqq. The Lex Sempronia de provincia
Asia, which altered the mode of collecting the tithes of Asia, was an
infringement of the customary rights of the senate.) The case was much the
same with regard to the public expenditure. It was the senate which
sanctioned the expenditure, which directed the payments to be made from the
treasury--except where these were in a few cases fixed by law,--and which
authorised the striking and issue of coins in Rome. (Mommsen,
op. cit. 3.1126
sqq.;
Plb. 6.13,
καὶ γὰρ
παραπλησίως;
Cic. in Vat. 15, 36, describes
the “aerarii dispensatio” as a prerogative of the senate.) (2)
The organisation, in the first instance, of a new province was usually
carried out by a commission of senators in accordance with a decree of the
senate [
PROVINCIA]; and it
was by the senate, as a rule, that any subsequent modifications in its
constitution were made, and regulations laid down as to the methods of its
administration (Mommsen,
op. cit. 3.2, 1211
sqq.;
Liv. 43.2;
Cic. Ver.
2.39,
ad Att. 5.21). It was to the senate that the
provincial governor addressed his despatches, and before the senate that
provincial deputations
[p. 2.633]appeared. (3) In foreign
relations, it is not easy to define exactly the functions of the senate, as
distinct on the one hand from the constitutional rights of the people, and
on the other from the authority wielded on the spot by the magistrate or
pro-magistrate, vested with the imperium and in command of troops. For a
formal declaration of war against a previously friendly power, the consent
of the people was constitutionally necessary; while the repulse of invaders
and the chastisement of insurgents were matters within the authority of the
magistrate himself. But for military expeditions on any considerable scale,
or for expeditions outside his province, or against friendly peoples within
it, he was expected to obtain the sanction of the senate (
Liv. 39.3,
55,
43.1; Appian,
App. Hisp.
81). The ratification of a formal and permanent treaty of peace,
like the formal declaration of war, was properly the act of the people
[
Plb. 6.14,
ὑπὲρ
εἰρήνης οὕτος βουλεύεται καὶ πόλεμου. Livy,
30.44, describes the conditions of peace with
Carthage (201 B.C.), arranged by Scipio, as requiring confirmation
“patrum auctoritate populique jussu;” comp. Id. 29.12;
Sal. Jug. 39, “senatus decernit suo
atque populi injussu nullum potuisse foedus fieri” ]; the
arrangement of a temporary truce that of the magistrate. But the terms of a
proposed treaty were discussed and settled in the senate. It was before the
senate that foreign ambassadors appeared, and by the senate's authority that
Roman legati were sent out (
Plb. 6.13). Of the
numerous alliances by which communities were admitted to the status of
dependent allies of the Roman people, the majority seem to have been
ratified by the senate only. [Mommsen,
op. cit.,
3.1172. The ratification by law of Pompey's arrangements in Asia (59 B.C.)
was an exception to the rule (
D. C. 38.7).] If
to the senate's control of the finances, of the administration of the
provinces, and of foreign relations we add its general supervision of
matters touching public peace and order in Rome and Italy (described by
Plb. 6.13), the justice of its claim to be
considered the actual ruler of the Roman state will be evident.
But this claim did not pass unchallenged in the last century of the Republic,
and during the latter half of that century (70-49 B.C.) it was weakened by
the growing ineffectiveness of senatorial control in the very case where it
was most needed, in the government of the provinces. The attacks made upon
the ascendancy of the senate by the Gracchi, and by the leaders of the
popular party after them, were directed in the first place against the claim
put forward on behalf of the senate that its
auctoritas was necessary for any measure which a magistrate
wished to bring before the assembly. The question of the legality of this
claim, raised by the opposition which the senate offered to the Sempronian
agrarian laws, was answered by the successful passing of those laws
“contra auctoritatem senatus.” Sulla indeed endeavoured to
reassert the claim by making the
senatus
auctoritas legally necessary (88 B.C.;
Appian,
App. BC 1.59,
μηδὲν ἔτι ἀπροβούλευτον ἐς τὸν δῆμον ἐσφέρεσθαι),
but his work was undone in 70 B.C., and
thenceforward the independent right of the magistrate to propose and of the
people to pass any law, though denied in theory by senatorial advocates
(
Cic. de Rep. 2.36;
de Legg. 3.12), was allowed in practice and was
repeatedly exercised. Similarly the summary condemnation of the elder
Gracchus' adherents drew from the popular party an emphatic repudiation of
the principle that the senate by decree could authorise the consuls to
suspend the law of appeal (Plut.
C. G. 5;
Cic. pro Rab. perd. 4, 12;
pro Cluent. 55, 150), and the execution of
the Catilinarians in 63 B.C. led to a second reassertion of the
inviolability of the law by Clodius in 58 B.C. (
Vell.
2.45; for a statemen of the senatorial view of the force of the
decree in this case, comp. Sallust,
Sal. Cat.
29).
More dangerous to senatorial ascendancy was the policy pursued by Gaius
Gracchus, who, taking his stand on the legislative independence of
magistrate and people, invited the latter to deal by law with a variety of
questions, long left by custom to the decision of the senate, such as the
distributions of corn, the conditions of military service, the taxation of
the provincials, and even the mode of assigning the provinces. [LEGES SEMPRONIAE.] The precedent set by Gracchus
was followed by his successors, and in particular the interference of the
assembly in the assignment of provincial commands struck at the very roots
of the power of the senate (comp. Gabinian and Manilian laws, 67-66 B.C.; Lex Vatinia, 59; Lex Clodia, 58; Lex
Trebonia, 55).
But the ascendancy of the senate might have survived these attacks, had it
been able to retain its hold over the great officers who led the legions and
governed the provinces abroad. While, however, the senate from 81 onwards
showed itself increasingly anxious to retain in its own hands the control of
the provinces and of foreign relations (see, for instances, Mommsen,
op. cit. 3.1171, 1222), the virtual independence of
the proconsuls, and the impotence of the senate to enforce the observance by
them of its own decrees or of laws, became daily clearer. And this was so
not only in the case of great autocratic officers, such as Pompey or Caesar,
holding important commands by the direct vote of the people, but of the
ordinary provincial governor. (Comp. the advice given by Cicero to Lentulus
Spinther to restore Ptolemy Auletes on his own responsibility:
ad
Fam. 1.7, 4.) It was finally in a conflict, not with the popular
assembly and its leaders, but with the powerful proconsul of the Gauls, that
the senate was decisively defeated.
VII.
The Senate under the Emperors.--The changes effected by
the emperors in the composition and procedure of the senate have been
already described. It remains to consider the share it took in the work of
government. The restoration of the Republic professedly accomplished by
Augustus formally replaced the senate in its ancient position as the
recognised council of advice for the executive magistrates. The decay of the
comitia removed an ancient rival; it
transferred to the senate the election of magistrates, and substituted
senatorial decrees for laws. In conjunction with the consuls the senate
exercised throughout the first century a criminal jurisdiction, such as it
had only claimed before in exceptional cases, and, since 122, only under
protest from the popular party. The growing insignificance of the old
magistracies increased its prestige as the surviving representative of the
old Republic, and
[p. 2.634]the one constitutional check on
the power of Caesar. And when, on the death or deposition of an emperor, the
principate for the moment ceased to exist, it was to consuls and senate that
its powers in theory reverted, and from them came constitutionally the
proposal to confer them anew upon a successor. [PRINCIPATUS.]
But the political and administrative ascendancy of the senate was gone for
ever, and even the partnership with Caesar in the government often claimed
for it was unreal and delusive. [For a different view, see Mommsen,
Staatsrecht, 2.709; as to the supposed
Dyarchie of Caesar and senate, comp. ib. 3.1252, “Der
souveräne Senat des Principats:” see also PRINCIPATUS.] The period of its real supremacy had
been marked by a gradual restriction of the magistrates' control over its
composition and procedure. How farreaching on the other hand was the
authority of Caesar in these respects has been shown above. Moreover, under
the system established by Augustus, the senate had a double part to play. On
the one hand it was still as of old the council which advised, instructed,
and even directed the ordinary executive officials, the consuls, praetors,
&c., in Rome, and the governors of all provinces other than those of
Caesar abroad. Under this aspect it had a sphere of activity conterminous
with theirs, covering nominally the administration of affairs in Rome,
Italy, and the public provinces. But in the first place this sphere of
activity was not only restricted by the wide area originally assigned to
Caesar, but became continually narrower as Caesar laid his hand on one after
another of the departments properly belonging to the regular magistrates
(see for details PRINCIPATUS). Even within these
limits the power and influence of Caesar made themselves increasingly felt,
to a degree which deprived the action of the senate of all real
independence. In the discussion of matters within this sphere, brought
forward by the consuls or other magistrates, Caesar, if present, took part
as an ordinary senator, but his
sententia
carried a weight which was usually decisive. (
Tac.
Ann. 1.74;
2.36. This is
especially clear in the case of trials before the senate, where Caesar's
sententia is sometimes treated as
equivalent to a judicial verdict, e.g.
Ann. 4.31.) In virtue,
moreover, of his
tribunicia potestas, Caesar
could and did interfere at any stage of the proceedings: to prevent the
making of a
relatio, the taking of
sententiae, or the passing of a decree. (In
Tac. Ann. 1.13, Tiberius is thanked
“quia relationi consulum jure tribuniciae potestatio non
intercessisset;” comp. ib. 3.70, 14.48.) It is evident also that,
even under the early emperors, the consciousness of Caesar's overwhelming
strength disinclined the senate to discuss or decide any but the most
ordinary and unimportant questions except at his suggestion or with his
approval, and made it anxious to transfer all serious responsibility to him.
(
Tac. Ann. 2.35,
3.32,
52,
13.26, “consules non ansi
relationem incipere ignaro principe.” Plin.
Epp.
6.19, “senatus sententiae loco postulavit ut consules desiderium
universorum notum principi facerent;” ib. 7.6, “consules
omnia integra principi servaverunt.”
Tac. Hist. 4.4, “eam curam consul
designatus ob magnitudinem oneris . . . principi reservabat.”
Nero thought it necessary to profess his intention of respecting the
supposed division of labour between himself and the senate.
Ann. 13.4, “teneret antiqua munia senatus . . .
consulum tribunalibus Italia et publicae provinciae adsisterent.”
) A glance at the three departments of finance, of provincial government,
and of foreign relations, over which under the Republic the senate exercised
a real authority, will sufficiently illustrate its altered position under
the emperors. In that of finance, a limit was at once placed to the senate's
control by the existence of the fiscus, which was from the first wholly
under Caesar's management [
FISCUS]. Over the old state chest, “aerarium populi
Romani,” the senate retained a nominal supervision, but of its
independent management by the senate there is little trace. The expenditure
of money from it, or remissions of payments due to it, were indeed, as late
as the second century, authorised by senatusconsulta, but on the initiative
of the emperor (
Tac. Ann. 2.47,
4.13. A natural exception was the occasional
outlay on temples in the emperor's honour). Its custody was by Nero
transferred to imperial officers (
praefecti aerarii,
Tac. Ann. 13.29); and though the fiscus and
aerarium remained for long formally distinct, Dio Cassius pronounces the
distinction to be at once unreal and difficult to define (
D. C. 53.16,
22). As
regards the government of the provinces, the control of the senate was
similarly at once restricted in area, and shorn of all real independence
[PRINCIPATUS; PROVINCIA]. Over two-thirds of
the empire Caesar was sole master, and over the rest he exercised a
majus imperium which ultimately gave him all that he
wanted. Of its old duties in connexion with the assignment even of the
so-called “senatorial provinces” all that remained was the
formal selection of the same two provinces each year as
“consular.” In the first century it is true that the
responsibility of proconsuls to the senate rather than to Caesar, and the
right of the senate to supervise their administration, was recognised in
theory and occasionally in practice; but, as has been shown elsewhere [PRINCIPATUS], in the second century even this
partial authority disappeared. Over foreign relations the senate retained no
independent control whatever, even in name. Although announcements as to
foreign affairs were constantly made in the senate or communicated to it by
the emperor (
Tac. Ann. 1.52,
2.52,
3.32,
47; Mommsen,
op.
cit. 3.1107, 1264), and though foreign embassies were sometimes
introduced to it by him (
Tac. Ann. 12.10;
Hist. 4.51), yet the exclusive command of
all troops, and the plenary authority to declare war and conclude treaties
given to Augustus and his successors, deprived the senate of all real power
(
Strabo xvii. p.840,
καὶ πολέμου καὶ εἰρήνης κατέστη κύριος.
Lex Vespasiani, Bruns, p. 128, “foedusve cum quibus volet facere
liceat” ). It is lastly significant of the growing dependence of
the senate upon Caesar, even within its own sphere, that by the close of the
second century even the criminal jurisdiction seems to have been exercised
only at the invitation or by direction of the emperor (Mommsen,
op. cit. 2.110).
But the senate was also the council of advice for Caesar himself, who
possessed by statute a special right of convening it, of laying matters
[p. 2.635]before it, and of carrying
senatusconsulta (Lex Vespasiani, “utique ei senatum habere,
relationem facere remittere, senatusconsulta per relationem
discessionemque facere liceat” ). Here there was no question of
divided authority; from this point of view the activity of the senate was
determined by the willingness or reluctance of Caesar to consult it, and to
use its decrees, as instruments of his own government, within the sphere
assigned to him.
Such a use of the senate had obvious advantages. It was in accordance with
republican tradition; it gave an appearance of constitutionalism to imperial
rule, without involving any real sacrifice of power; and it divided
responsibility. By nearly all the emperors of the first and second centuries
the usefulness of the senate in this capacity was fully recognised. The list
of questions submitted to the senate by Caesar and of decrees promoted by
him (
auctore principe) is a long one; and
besides non-political matters, such as changes in the civil law, regulations
as to the theatre and gladiatorial shows, restrictions on luxury, or the
expulsion of astrologers (for instances, see Haenel's useful work, entitled,
rather inaccurately,
Corpus legum ab Imperatoribus
latarum, Leipzig, 1857, and art.
SENATUSCONSULTUM), it
includes a variety of subjects directly connected with the general
administration of the Empire. (
Suet. Tib. 30,
“de vectigalibus et monopoliis . . . etiam de legendo vel
exauctorando milite . . . denique quibus imperium prorogari ant
extraordinaria bella mandari, quid et qua forma regum litteris rescribi
placeret;”
Tac. Ann. 11.23, grant of
jus honorum to the Aedui; ib. 12.61, grant of
immunitas to Cos: comp. Haenel,
op. cit.).
The usefulness of the senate as a subordinate instrument of Caesar's
government outlasted its importance as an independent administrative
authority: but even in this capacity it ceased after a time to fill any but
a quite insignificant place. By the time of the younger Pliny, the emperor's
relationes, whether oral or written, were
assuming the form of definite proposals, accepted by the senate as a matter
of course, and sometimes without even a formal taking of
sententiae; and the imperial
oratio or
epistula, rather than the
senatusconsultum which followed, is quoted as authoritative (see
supra, under PROCEDURE, p.
628). In the third century even this purely formal reference to the senate
became rare; and from the reign of Septimius Severus onwards, government by
imperial edicts, constitutions, and rescripts is the rule. (Even in the
department of civil law, the references to orationes, epistulae, and
senatusconsulta rapidly dwindle in number, while those to constitutions and
rescripts as rapidly increase. See Haenel,
op. cit,;
Rein,
Privatrecht, p. 86.)
On two or three occasions during the third century, accident seemed to revive
the importance of the senate. The formal investiture of the person chosen to
be
princeps, with the customary powers, had
always been accomplished by decree of the senate followed by a vote of the
people [PRINCIPATUS], though only rarely had the
senate exercised a voice in the selection itself. But both Maximus and
Balbinus and Tacitus were actually chosen by the senate, the responsibility
of choosing being in the latter case entrusted to the senate with the
consent of the army. It is clear, however, that with this delicate and
hazardous duty, thrust upon it by the force of circumstances, the senate's
renewed activity began and ended; and in spite of the magniloquent language
used in the senate on the accession of Tacitus, and of some trifling
concessions to its vanity made by that emperor, there was in no sense any
revival of senatorial authority. [Schiller's phrase,
“Senatskaiserthum,” is misleading (
Gesch. d.
Kaiserzeit, 1.795, 872), as also is his description of the reign
of Severus Alexander as a “Restauration der Senatherrschaft.”
With the language used in the senate (
Vit. Tac. 12),
“in antiquum statum redisse rempublicam,” &c.,
compare the naive admission of the consul himself (ib. 3), “quare
agite, patres conscripti, et principem dicite, aut accipiet enim
exercitus quem elegeritis,
aut, si refutaverit,
alterum faciet.” ]
The senate of the Republic, and even of the early Empire, was emphatically
the central deliberative council of the Empire, and “senators”
are the members of this council, with seats and votes in the Curia. But the
tendency of imperial policy in the second and third centuries was, on the
one hand, to exclude the senate from any effective share in imperial policy,
and limit its activity to local Roman or Italian matters; on the other, to
create outside it a senatorial order (see
supra, p. 625). This policy was carried to its extreme point by
Diocletian, Constantine, and their successors. The abandonment of Rome by
the emperors, and the creation of a second Curia at Byzantium, destroyed the
significance of the senate as an imperial institution; while the extension
given to the senatorial order, and its importance as a numerous class
represented in every part of the Empire, formed an effective contrast with
the quasi-municipal councils which at Rome and Constantinople jointly
inherited the name of “senate.”
Admission to the order--that is, to senatorial rank--was gained either by
birth, as the son or grandson of a senator, or as in old times by election
to the quaestorship, or lastly as under the early emperors by imperial
adlectio. But admission by
adlectio was now attached to the tenure of certain
offices in the imperial service. The senatorial order of the fourth and
fifth centuries is in consequence a numerous body, and includes all but the
subordinate officials and ex-officials of the Empire. Within this body
further degrees of rank were gradually established. The title
clarissimus, originally common to the whole order,
had been by the time of Justinian restricted to the lowest class within it,
and above the
clarissimi stood the
spectabiles, and highest of all the
illustres: a classification which was based entirely
on the scale of precedence established for the various offices of state. The
members of this order enjoyed certain common privileges (e. g. the right of
being tried on criminal charges before the
praefectus
urbi, and special seats at games), and were liable to certain
special burdens,--a liability which extended to their wives and children.
(See, for these, Kuhn,
Verf. d. röm. Reichs, 1.204.)
But of this numerous body only a minority actually sat and voted in the
senate-house at Rome or Constantinople, for the
jus
sententiae, once the right of every senator, was now limited
to the highest class in the senatorial order, that of the
illustres;
[p. 2.636]i.e. to the holders and ex-holders of the great
offices of state, including ex-consuls,
consulares. [Mommsen,
Ostgothische Studien, pp.
487, 488. Schiller,
Gesch. d. kaiserzeit, 2.41, would include
also
consulares in the wider and later use of
the term (see CONSUL; CONSULARIS), but allows that
the point is doubtful. Among the lower of the offices which gave the
“jus sententiae,”
“honorum lege” (Cassiod.
Var. 5.41), were those
of the “comes rerum privatarum,” the “quaestor sacri
palatii,” and the “vicarius urbis Romae.” ] To this
select consistory of high officials and ex-officials, all appointed by the
emperor, were still entrusted a few duties which though robbed of all
importance served to connect them with the great past of the senate. They
still chose the
consules suffecti, the
praetors, and quaestors,--offices of purely municipal importance, but their
choice required confirmation by the emperor. They still passed decrees as to
the public games and the schools of the city, and managed an aerarium which
was now only a city chest. On rare occasions the emperor submitted to them
an edict or constitution, or entrusted to them the trial of a case of
treason. But nothing more clearly shows how low this later senate had fallen
than the fact that the official president at its meetings, who kept the
senatorial roll, admitted new members, and submitted its decisions to the
emperor, was not one of the consuls, but the imperial prefect of the city.
(See, for the senate of this period,
Cod. Theod. vi.;
Nov. Just. 62; Kuhn,
Verf. d. röm.
Reichs, 1.174-226; Schiller,
Gesch. d.
Kaiserzeit, 2.36-43; Mommsen,
Ostgothische Studien,
pp. 485-493; Lécrivain,
Le Sénat Romain depuis
Dioclétien, Paris, 1888.)
[
H.F.P]