SENATUSCONSULTUM
SENATUSCONSULTUM The powers of the senate have been described
in the preceding article (pp. 631-635), and it has been seen that the
senatusconsultum under the Republic expressed the advice of the senate to
the magistrate who sought advice: the carrying out of the resolution so
expressed rested with the magistrate: the reference to the senate was a
matter of custom, not of definite obligation. The binding character of the
advice embodied in the SC. not only varied according to the strength or
weakness of the magistrate (though a conflict was rare), but was greater at
certain periods (for which see p. 632), when the administrative power left
in the hands of the senate gave to its resolutions much greater weight than
mere advice would seem to have; and with the change of the constitution
under Augustus (see pp. 634, 635), legislation by the emperor through the
senate, as expressed in SCa, superseded the older
practice of enacting leges and plebiscita in the Comitia, and continued for
about two centuries. Hence senatusconsulta came themselves to be termed
leges (Gaius, 1.83-86), though Gaius (1.4) indicates the constitutional
controversy: “Senatusconsultum est quod senatus jubet atque
constituit: idque legis vicem obtinet,
quamvis fuerit
quaesitum.” But we must guard against any such idea
of their
legislative force for republican times, and
must certainly reject the view of Theophilus (
Paraphr. Inst.
1.5) that even after the Lex Hortensia SCa had the force
of law.
The senatusconsultum differed from the lex partly in its scope, but
especially in its effect. As regards its scope, it concerned chiefly
administration, and only exceptionally attempted to regulate public and
private rights, as for instance debts (
Liv. 35.7;
Cic. Att. 5.2. 1,
13). As regards its effect, whether its
object was administrative or partook of the legislative character, as in the
exceptional cases alluded to, still it was not law, for its execution
depended on the will of the magistrate. It is true that it was not as
transitory in historical times as in the early period mentioned by Dionysius
(
9.37; see Mommsen,
Staatsr. 3.987); for, if the magistrate neglected to execute
it, it remained valid for the next year and. until the senate repealed it
[Willems however thinks that a fresh relatio was needed, and cites
Liv. 42.10;
Cic. in
Pis. 2, 4]: but if it became the direction for the
succeeding magistrate, it equally depended on his will, and if SCa were to be made obligatory they were transformed into
laws by a rogatio (cf.
Cic. Att. 1.1. 8,
3;
pro Mur. 32, 67;
Liv. 39.19). The Lex Cornelia of B.C. 67,
“ne quis nisi per populum legibus solveretur” [
LEX p. 40
b], is sometimes adduced as a proof of previous legislative power
in the SC. which could dispense from the action of the law: but this
dispensation without the sanction of the people had been a usurpation by the
senate and was checked by the above-mentioned law. It was, as Willems
remarks (
Le Sénat, 2.117), not exercised till
after the time of the Gracchi (cf.
Liv. 10.13,
31.50;
Ep. lvi.). Again, the
cases of a resolution “populum ea lege non teneri,” or
“placere legem abrogari,” alluded to in Cicero (
de
Legg. 2.6, 14; fr.
Corn. §
11;
Phil. 5.4, 10, 12.5, 12;
de Dom. 16, 41),
are not a repeal of laws by the senate, but merely a declaration that the
law in question was never rightly passed, either because it contradicted an
existing law, or as
contra auspicia, and
therefore to be referred to the augurs (cf.
Cic.
in Vat. 6, 14). As regards the effect of a
senatusconsultum on the magistrate, the obligation to carry it out was
moral, not legal; yet it must be noticed that the senate could bring certain
influences to bear on the magistrate, who either neglected to consult them
more majorum, or, having consulted, refused
to execute the resolution. They might in the earlier period appoint a
dictator; they might invoke the interference of the tribunes (
Liv. 42.21), and a plebiscitum might follow; they
might inconvenience him by refusing to entertain any other matters until
this was settled (
Cic. in Pis.
13, 29); lastly, there was always the consciousness that his office
was for a year, theirs for life. As a matter of fact conflicts seldom arose,
but for an instance see
Liv. 42.9,
10. The following instances of SCa under the Republic may be instructive: a SC. “ne quis in urbe
sepeliretur;” the SC. de Bacchanalibus, hereafter more
particularly mentioned; a SC. de libertinorum tribu (
Liv. 45.15); a SC. de Macedonia (ib. 18); a SC. relating to the
costs of the Ludi Megalenses (
Gel. 2.24); a SC.
“ne homo immolaretur” (
Plin.
Nat. 30.12); a SC. de provinciis Quaestoriis; a SC. made
“M. Tullio Cicerone referente,” to the effect “ut
legationum liberarum tempus annuum esset;” various SCa de collegiis dissolvendis; an old SC. “ne
liceret Africanas (
bestias) in Italiam
advehere,” which was so far repealed by a plebiscitum proposed by
Cn. Aufidius, tr.
[p. 2.637]pl., that the importation for
the purpose of the Circenses was made legal (
Plin. Nat. 8.64); and an old SC. by which “quaestio
(servorum) in caput domini prohibebatur” (
Tac. Ann. 2.30), a rule of law whose
foundation Cicero (
pro Milon. 22, 59) refers to
majores. The general character of these
senatusconsulta shows that, though not equivalent to laws under the
Republic, they exercised a control in matters which concerned
administration, the maintenance of religion, the rights of the Aerarium and
the Publicani, and the treatment of the Italians and Provincials (cf.
Liv. 26.34;
39.3;
41.9).
The resolutions of the senate were called
consulta, because the magistrate (Consul, Tribune, or Praetor)
summoned it to consult upon some special matter which he wished to lay
before it (
referre, relctio): thus in the SC. de
Bacchanalibus we have “Marcius L. F. S. Postumius L. F. Cos Senatum
consoluerunt,” and in the SC. de Philosophis et de Rhetoribus
(
Gel. 15.11) the Praetor
“consuluit.” In the enacting part of a lex the populus was said
jubere, and in a plebiscitum
scire; but in senatusconsulta the senate is usually
said
censere (e.g. “ita exdeicendum
censuere,” SC. de Bacch.), though in ordinary language
decernere is used of it (e. g.
Cic. Fam. 8.8;
ad Att. 1.19),
and the words
decretum and
senatusconsultum are often used indiscriminately and with little
precision (
Gel. 2.24: cf. Aelius Gallus ap. Fest.
s. v.
senatus
decretum, and the article on
DECRETUM). On this point see
also Mommsen,
Staatsrecht, 3.994 ff.; B. Pick,
de
Senatusconsultis, ch. i. (Berlin, 1884). The view of Herr Pick,
that the clause of the SC. which conveyed the actual resolution was
sometimes distinguished as the
decretum,
explains Fest. p. 339.
For the procedure in consulting the senate and obtaining the resolutions
thence called senatusconsulta, see
SENATUS § v. The resolution was not reduced to writing
until it had been voted (cf.
Cic.
Cat. 3.6, 13). It was written down (
perscriptum, less often
scriptum) in the place of meeting soon after the vote, always on
the same day, by the
scrsbae. The presiding
magistrate retained witnesses for the draft to prevent fraudulent
misrepresentation (
Cic. Phil. 5.4,
12;
ad Att. 4.8). These were
usually the
auctor sententiae, some of the
supporters of the vote, or in the case of a complimentary vote the friends
of the person honoured (
Cic. Fam. 15.6,
2). The phrase expressing the witnesses
is
scribendo adfuerunt (SC. ARF. in the
de Bacchanalibus), in Greek versions
γραφομένῳ παρῆσαν. It is a mistake to
suppose that the witnesses were called “auctoritates.” In the
passage relied on (
Cic. Fam. 8.8) the
preliminary words (which Mommsen,
St. 3.1008,
needlessly discredits),
SC. Auctoritates, are descriptive of
the two classes of resolutions which follow: the first is a
senatusconsultum, the others are auctoritates, since there was an
intercessio against them. It is natural and easy to give the same meaning to
the word in
Cic. de Or.
3.2, 5. [For the text of the former passage, see Tyrrell and Purser,
ad loc., critical note.]
The form in which the resolution was drafted is as follows: 1 (often
omitted). SC. (or auctoritas, as the case might be). 2 (up to B.C. 47). The
praescriptio,
“senatum consuluit,” with name of the
relator. 3. The date. 4. The place of assembly, e. g.
“in aede Apollinis.” 5. The witnesses, “scribendo
adfuerunt.” 6. The
relatio, as a
preamble, “quod verba fecit” so and so. 7. The decrec “d.
e. r. i. c.” (de ea re ita censuerunt) “uti,”
&c.; to this might be added the reason “cum ita se res
habeat.” After the time of Augustus the number of senators was added.
The document often concludes with C. or “censuere.” On the
authority of
V. Max. 2.2,
7, some (as B. Pick,
de Senatusconsultis, p. 21)
hold that the tribune affixed the letter T to the resolution against which
there was no intercession, when it was drafted and about to be deposited in
the tabularium; and, on that theory, the disputed letters in
Cic. Fam. 8.8,
5, might be TR; but Mommsen takes them to represent C[
ensuere], referring to the senators, and this is
borne out by the fact that in Greek versions we find
ἔδοξεν so placed. The view of Willems (
op. cit.) seems probable, that when the SC. was not voted as a
whole in one discessio, but each clause (
particula, Fest. p. 339) separately, we find
“censuere” or
ἔδοξεν at the
end of each clause on which a vote was taken; but when it was voted as a
whole, the words d. e. r. i. c. sufficed. Lastly, if it was necessary to
obtain a law, a clause was added, “ut de ea re ad populum
ferretur” (
Cic. Fam. 8.8,
5). [For the custody of the document, see
TABULARIUM and
SENATUS p. 630
b.] As regards the title of the SC. it was named in
reference to its contents, “SC. de Bacchanalibus,”
“SC. ne quis in urbe sepeliretur,” &c.; it was never
named after the
relator until the imperial
period (see examples below); the SC. Sempronianum in
Cic. Fam. 12.2. 9 is probably=SC. de
Sempronio.
A measure which it was proposed to submit to the senate might be stopped by
the
intercessio of a tribune, who could put a
veto on the
relatio (
Plb.
6.16): and not only tribunes, but any magistrate of higher or
equal rank with the
referens, might exercise
the right of intercessio at the voting (Varro ap.
Gel.
14.7,
6;
Cic.
de Legg. 3.3, 10), and, though they could not
prevent the resolution from being carried (
V. Max.
2.2,
7;
Tac.
Hist. 4.9;
Cic. Fam. 10.1. 2,
3), might deprive it for the present
of administrative force. A proposal so carried, and invalidated by
intercessio, was called “senatus auctoritas” (a term which is
also loosely used to denote any expression of opinion by a majority of the
senate, whether it became a senatusconsultum or not,
Cic. de Legg. 2.1. 5, 37;
de Orat. 3.2, 5;
ad Fam.
1.2, 7, 8.8). In Livy the technical distinction disappears (see Mommsen,
St. 3.1033). [For the totally different
patrum auctoritas, see p. 631.] It was
formally drawn up and recorded, in the hope that, the veto being
subsequently removed, it might acquire validity by reference back to and
confirmation by the senate, but without being rediscussed (cf. the clause in
the SCa in
Cic. Fam. 8.8:
“Si quis huic SCo intercessisset, senatui
placere auctoritatem perscribi et de ea re ad hunc ordinem
referri;” compare also
ad Fam. 1.2, 4; 1.7, 4;
ad Att. 4.16, 6;
D. C. 55.3).
This right of intercessio belonged to the tribunes against one another, the
consuls, and praetors; and to consuls against one another and the praetors,
but not against the tribunes: but in the later period of the republican
history it seems to have been exercised by tribunes only.
[p. 2.638]
If the SC. referred to Latin-speaking communities, nothing beyond the
original wording was required; but if it referred to Greeks, a version in
Greek was made. The style shows that it was translated in a conventional
form at Rome and sent to Greece or elsewhere: no pains are taken to turn
such Latinisms as
ἐν Κομετίῳ πρὸ ἡμερῶν ἕπτα
εἰδυιω̈ν Ὀκτωβίων. Of the SCa which
are known to us of the republican period, some have come down in the
original form. They may be classed (following Willems) as 1. Those of which
the
Latin text remains, wholly or in part, engraved in
bronze: fragment of
de Bacchanalibus, in a
letter of the consuls “ad Teuranos,” B.C. 186 (
C. I.
L. 1.43): part of SC.
de Tiburtibus, in
a letter written by the praetor to the Tiburtes (
C. I. L.
1.201); the date of this, as Mommsen finally decides, is B.C. 159, and
consequently Niebuhr erred in making it the oldest document: fragment of the
Latin text of the
de Asclepiade, B.C. 87
(
C. I. L. 1.111). 2.
The Greek engraved
versions: fragment of the
de Delphis,
B.C. 198--the oldest existing SC.--(Le Bas, 852
b): SC., or rather two SCa, de Thisbis, B.C.
170 (
Ephem. Epig. 1.278, 2.102): a fragment
de
Prienensibus et Samiis, B.C. 135 (Le Bas-Waddington, 95, 196);
the Greek text
de Asclepio (
C.
I. 1.112); a fragment
de Aphrodisiensibus, B.C. 56
(Le Bas-Waddington, 1627);
de Stratonicensibus, B.C. 39
(
Bull. Corr. Hell. 1887, 225). 3.
Latin texts or
Greek versions preserved in literature: SC.
de philosophis et rhetoribus, B.C. 161 (Suet.
Rhet. i.;
Gel. 15.11);
de hastis Martiis, B.C. 99 (
Gel.
4.6);
de provinciis consularibus
(
Cic. Fam. 8.8); three SCa
de Joudaeis, dated B.C. 139, 133, 44 (
J.
AJ 14.8,
13.9,
14.10). Besides this we have SCa about
aqueducts in Frontinus, book ii., and various others preserved in more or
less the original form in the Digest. [
G.L]
[
G.E.M]
The following list of senatusconsulta contains, perhaps, all of them which
are distinguished by the personal name of a consul or other magistrate.
Numerous SCa passed under the Empire are referred to in
the Latin writers, for which we find no distinctive name, though it is
probable that, like Leges, they all had a title; but many of them, being of
little importance, were not much cited or referred to, and thus their names
were forgotten. Tacitus, for instance, often speaks of SCa without giving their names, though in some cases we are able to
affix the titles from other authorities.
AFINIANUM: mentioned in Cod. 8, 48, 10, 3; Inst.
3.1, 14 (where some of the MSS. read Sabinianum, Papinianum, and Fabianum).
According to the paraphrase of Theophilus, it enacted that when a man gave
one of three sons in adoption the pater adoptans should be bound to leave
the adopted son at least a fourth of his property.
APRONIANUM: probably passed in the time of Hadrian;
it enables civitates (i. e. municipal corporations) to take an hereditas by
way of fideicommissum (
Dig. 36,
1,
26; cf. Ulpian,
Reg. 22,
5). In the same passage Ulpian says that civitates had been enabled by a
senatusconsultum to be directly instituted heirs by their freedmen (cf.
Dig. 38,
3,
1,
1). Both enactments were
occasioned by the want of testamentifactio in civitates, as being
incertae personae (Ulpian,
l.c.; Pliny,
Plin. Ep. 5.7); but there
does not seem to be any ground for supposing them to be one single
senatusconsultum. By construction they were held to entitle municipal
corporations instituted as heirs to demand
bonorum
possessio secundum tabulas (
Dig. 38,
3,
1,
1). Nerva made it lawful for them to take legacies (Ulpian,
Reg. 24, 28), a right extended to lawful collegia by a
senatusconsultum under Marcus Aurelius (
Dig. 34,
5,
20).
ARTICULEIANUM (A.D. 101) enabled provincial
governors to declare a slave free to whom liberty had been bequeathed by a
fideicommissum when the master was domiciled in a different province (
Dig. 40,
5,
51,
7).
DE BACCHANALIBUS (B.C. 186): discovered on a bronze
tablet, which is now at Vienna, in Calabria, A.D. 1640. The text is given by
Mommsen,
C. I. L. i. No. 196, and in facsimile in the first
volume of the inscriptions edited by the Royal Prussian Academy, 1862, Tab.
xviii. Its main enactment was the prohibition of the Bacchanalia throughout
all Italy (
Liv. 39.18): see the article on
BACCHANALIA Vol. I. p. 265.
Bynkershoek has written a treatise on this SC. (
de Cultu
Religionis peregrinae apud veteres Romanos, Opusc. 1.412),
with which may be compared
Senatusconsulti de Bacchanalibus,
&c.
Explicatio, auctore Matthaeo
Aegyptio, Neapol. 1729, and Lewald,
de Religionibus
peregrinis apud veteres Romanos paulatim Introductis,
Heidelberg, 1844. There appears to be no ancient authority for the name
Marcianum sometimes given to this SC., for, though this might have been its
proper title if it had been named after one of the consuls of the year, that
practice, as we have seen, first came in under the Empire.
CALVITIANUM: passed under Nero, and confirming the
SC. Persicianum (
q. v.) against a presumption based
on a senatusconsultum of Claudius. It enacted that neither a man under sixty
years of age, nor a woman over fifty, who intermarried with one another,
should be relieved from the disabilities of caelibatus: see JULIA ET PAPIA POPPAEA LEX (Ulpian,
Reg. 16, 3; Suet.
Claudius, 23;
Plin. Ep. 8.28; Cod. 5, 4, 27).
CLAUDIANUM this enactment, passed by the Emperor
Claudius A.D. 52, introduced certain exceptions to the rule of the Jus
Gentium, that the status of children is determined by that of their mother,
after referring to which Gaius says (1.83), “We must observe, however,
whether the law of nations in any given instance is overruled by a
statute or ordinance having the authority of a statute.” These
exceptions of the SC. Claudianum (in addition to two others stated by
Ulpian,
Reg. 5, 8) are three in number:--
(1) If a female citizen of Rome cohabited or had intercourse with a servus
alienus with the consent of the latter's master, the children born of the
connexion were to be slaves and the property of the father's owner, though
by agreement with the latter she could remain free herself: such agreement,
it would seem, might be inferred from the master's not giving her the notice
referred to under (3) below. This exception was repealed by Hadrian as
“inelegans,” who “restituit juris gentium regulam, ut
cum ipsa mulier libera permaneat, liberum pariat” (Gaius, 1.84).
It appears, however, from
Tac. Ann. 12.53,
and Paul.
Sent. Rec. 4.10, 1, that the woman herself was
degraded from the
[p. 2.639]status of ingcnua (if she were
freeborn) to that of liberta. Perhaps we should connect with this the
anomalous rule, stated in the Codex Theodosianus (4.9, 3), that children of
a free woman by a servus fiscalis were born Latini.
(2) The children of a free man by a slave woman whom he believed to be free,
were to be freeborn if males, slaves and the property of the mother's master
if females. This exception, again, was repealed as
inelegans, and the rule of the Jus Gentium restored, by
Vespasian (Gaius, 1.85).
(3) If a free woman cohabited with a servus alienus (known to her to be such)
without the master's sanction to the connexion, and persisted in the
intercourse after a notice (
denunciatio) thrice
repeated to her to withdraw by the master (or his tutor, curator, or agent,
and even without any such notice if the slave belonged to a municipal
corporation), the master could have her adjudged to himself as a slave by
the magistrate, along with the children born of the intercourse, whether
before or after this adjudication. Her property passed with her by a
universal succession [
SUCCESSIO] (Paul.
Sent. Rec. 2.21 a; Gaius, 1.86).
This part of the senatusconsultum was first repealed by Justinian, as
“indignum nostris temporibus” (Inst. 3.12, 1; Cod. 7, 24).
It appears from Gaius (1.91) that some jurists went so far as to maintain
that if a woman, being pregnant, was reduced to slavery under the
senatusconsultum, the child became a slave on birth, even though actually
conceived in civil wedlock (
justis nuptiis);
but this opinion was counter to the rule stated by Gaius (1.88, 92), Ulpian
(
Reg. 5, 10), and Neratius in
Dig.
50,
1,
9, that
children born of
justae nuptiae took the status
of the father at the time of conception.
There is some doubt whether the last two exceptions (so far as relates to the
status of the children) were established by the SC. Claudianum or by some
statute whose name is unknown to us. The latter view is supported by Rein,
Huschke, and Bethmann-Hollweg, on account of Gaius' language in 1.85, 86,
where he says, “ex
lege . . . . sed illa
pars ejusdem
legis.” In the earlier
editions of this work this unknown statute was assumed to be the Lex Aelia
Sentia, which, however, does not seem to have dealt with the children born
of intercourse between free persons and slaves, but rather with the
subjection to patria potestas of children born of marriage between cives and
Latinae or peregrinae, after
erroris causae
probatio (Gaius, 1.65, 75). But there seems to be more reason in
the view of Zimmern and Rudorff, who held that the term
lex is in these paragraphs loosely used by Gaius as
synonymous with senatusconsultum, and it is difficult to believe that the
rules stated under (1) and (3) were not established by the same enactment.
There are other senatusconsulta named after the Emperor Claudius, in
particular one which exempted from the disabilities of caelibatus men over
sixty who married wives under fifty years of age (Ulpian,
Reg. 16, 3;
Suet. Cl. 23):
possibly also his enactments relating to “revocatio libertorum in
servitutem” and bestowing freedom on slaves abandoned by their
masters (Suet. ib. 25) were made through the senate. Upon these less known
senatueconsulta of Claudius, see Jo. Augusti Bachii
Historia
Jurisprudentiae Romanae.
DE COLLUSIONE DETEGENDA: passed in the time of
Domitian to restrain fraudulent acquisition of the status of ingenuitas by
collusion between masters and slaves, patrons and freedmen (
Dig. 40,
16,
1; ib. 4). It is sometimes called the SC. Junianum.
DASUMIANUM: passed under Trajan, and enabling the
magistrates to declare free slaves to whom liberty had been bequeathed by
fideicommissum, but whose masters were prevented from performing the act of
manumission by absence on reasonable grounds: in this case the master was to
be patronus (
Dig. 40,
5,
22,
2; ib. 36, pr.; ib.
51, 4-6; cf. Rudorff in Savigny's
Zeitschrift, xii. pp.
307-311,
Das Testament des Dasumius).
HADRIANI SENATUSCONSULTA. Of the senatusconsulta
made on the proposal of Hadrian (e. g. Gaius, 1.47, 2.285;
Dig. 5,
3,
20,
6, &c.), and of which a considerable
number are enumerated in the work of Bachius referred to at the end of the
remarks on the SC. Claudianum, none seem to have been called by the name
Hadrianum. [See JUVENTIANUM.]
HOSIDIANUM: enacted A.D. 47, and referred to in the
SC. VOLUSIANUM (see Orelli's
Inscriptiones, No. 3115). It appears to have prohibited,
under severe pecuniary penalties, the pulling down of houses in order to
sell the site for more than one gave for it, or to make money in other ways,
and is well explained by Bachofen,
Ausgew. Lehren, pp.
185-227.
JUNCIANUM (A.D. 182) related to the manumission of
slaves belonging to other persons than the testator, to whom the latter had
bequeathed liberty by a fideicommissum (
Dig. 40,
5,
28,
4; ib. 51, 8; cf. Zimmern,
Geschichte des
römischen Privatrechts, 1.203).
JUNIANUM (
Dig. 40,
16). [See DE COLLUSIONE
DETEGENDA.]
JUVENTIANUM is the title given by civilians to the
senatusconsultum passed at the instance of Hadrian (A.D. 129) after the name
of one of the four consuls (two ordinarii and two suffecti) mentioned in
connexion with it in
Dig. 5,
3,
20,
6; but the
real proposal seems to have come from the consules suffecti, who were Titius
Aufidius and Oenus Severianus. It enacted that hereditatis petitio should
lie for the recovery not merely of res hereditariae from those in whose
possession they were, but for restitution of fruits and accessions, and of
any gain which a possessor, whether in good or in bad faith, had made
thereby (e. g. by the sale of a res hereditaria): in fact, its main object
seems to have been to settle some old points of dispute relating to things
belonging to inheritances which had been sold by persons other than the heir
(see Dernburg,
Hereditatis Petitio, 1852, p. 20
sq.): “post senatusconsultum omne lucrum
auferendum esse bonae fidei possessori quam praedoni dicendum est,”
Dig. 5,
3,
28. Another result of the enactment was to make usucapio pro
herede revocable by the heir [USUCAPIO: cf. Gaius,
ii.
57; Cod. 3, 31, 7]. Hereditatis petitio (to the article on which reference
should be made) thus became a species of “mixed” action;
originally “in rem,” it now lay for “praestationes
personales” as well as for the recovery of property: cf. Cod. 3,
31, 12, 3.
[p. 2.640]
LARGIANUM regulated the succession to the property
of Latini Juniani by providing that where the actual manumitter was dead it
should not go necessarily to his heres, but to such of his children as were
not expressly disinherited by him: “eo SCo actum
esse, ut manumissoris liberi, qui nominatim exheredati non sint,
praeferantur extraneis heredibus” (Gaius, 3.64-71; Inst. 3.7, 4;
Cod. 7, 6, pr. and 12; Nov. 78: cf.
PATRONUS). The date sometimes assigned to this senatusconsultum
(A.D. 42) is wrong; for, though a Largus was consul in that year, his
colleague was not called Lupus. It must necessarily fall later than the Lex
Junia Norbana, generally supposed to have been enacted A.D. 19, and not
later than the death of the jurist Cassius (Gaius, 3.71), who was consul in
A.D. 29.
LIBONIANUM (A.D. 16): enacted that where a man's
will was written out for him by another person, any disposition which it
contained in the latter's favour should be void and taken
pro non scripto: for illustrations, see
Dig. 48,
10,
6,
1 and 2; ib. 22, 7, 6 and 7;
Dig. 26,
2,
29.
It was added by an edict of the Emperor Claudius that such person should, in
addition, incur the penalties of the Lex Cornelia de falsis, though this
provision is ascribed to the senatusconsultum itself in the
Collatio
Leg. Mos. et Rom. 8.7, 1 (
Dig. 48,
10,
15, pr.). See FALSUM; and
Dig. 48,
10; Cod. 9, 23;
Suet.
Nero 3.
DE LUDIS SAECULARIBUS (B.C. 18). See Gruter,
Inscr. p. 326, and Haubold (Spangenberg),
Monumenta Legalia, p. 163.
MACEDONIANUM: passed according to Tacitus (
Tac. Ann. 11.13) under Claudius, according to
Suetonius (
Vesp. 11) under Vespasian, and enacting that no
action should lie on a loan of money made to a filiusfamilias. It seems,
however, that the praetor was in the habit of granting an action where the
facts were doubtful, leaving the defendant, if he could prove his title to
the benefit of the law, to repel the plaintiff by exceptio SC1 Macedoniani. Theophilus says that the name of the enactment was
derived from one Macedo, who committed the crime of parricide in order to
extricate himself from his pecuniary embarrassments, a story to which some
colour is lent by Inst. 4.7, 7; but other writers affirm that Macedo was a
notorious money-lender and usurer, though
Dig. 14,
6,
1, which is commonly
cited in support of this, makes more for the derivation of Theophilus. The
SC. related to no contracts except pecuniary loans, and to these it applied
even though veiled beneath some other transaction, such as a loan of wine
which the borrower immediately converted into money by sale (
Dig. 14,
6,
7,
3); and the rank or age of the
filiusfamilias by whom the money was borrowed was immaterial (Dig. ib. 2).
Such loans, however, were not declared void by the law, so that the
“natural” duty [OBLIGATIO] to
repay it remained; and if payment was actually made, the
condictio indebiti was excluded, unless made by the son with
money of the father's.
There were certain cases in which the operation of the SC. was excluded: as
where the filiusfamilias was a soldier at the time of borrowing the money
(Cod. 4, 28, 7, 1), or had a peculium castrense or quasi castrense of his
own (
Dig. 14,
6,
2), or ratified the contract after becoming
sui juris (Cod. 4, 28, 2); or if the lender had
reason to believe the filiusfamilias to be independent (
Dig. 14,
6,
3,
pr. and 1). Even the father could be sued if he had assented to the loan
either expressly or by implication, or had subsequently ratified it (Cod. 4,
28, 2; ib. 7, pr.), or so far as the money had been expended in his interest
( “in rem patris versum,”
Dig. 14,
6,
7,
12 and 13). (
Dig. 14,
6; Cod. 4, 28; Inst.
4.7, 7; Paul,
Sent. Rec. 2.10; Loebenstern,
de SCo. Macedoniano, Marburg,
1828; Dietzel,
Das SO. Macedonianum, Leipzig, 1856.)
MEMMIANUM: the name usually given to a
senatusconsultum passed in the time of Nero to prevent evasion of the
disabilities of orbitas [JULIA ET PAPIA POPPAEA
LEX], by adopting a child and then emancipating him immediately the
inheritance or legacy had been acquired. It appears from Tacitus (
Tac. Ann. 15.19) that the same device was
resorted to in order to escape public burdens (e. g. tutela: see Inst. 1.25,
pr.), and that this also was in future put a stop to by this
enactment--“ne simulata adoptio in ulla parte muneris publici
juvaret.”
NERONIANUM DE LEGATIS (Gaius, 2.197, 212, 218, 220;
Ulpian,
Reg. 24, 11a;
Fragm.
Vat. 85). [See
LEGATUM]
NERONIANUM (Paul.
Sent. Rec. 3.5,
5): also called Claudianum (
Dig. 29,
5, Rubr.) and Pisonianum (Dig. ib. 8, pr.), because
enacted in the consulship of Nero and L. Calpurnius Piso, A.D. 57. Among its
provisions Tacitus (
Tac. Ann. 13.32) states
the following: “Ut si quis a suis servis interfectus esset, ii quoque,
qui testamento manumissi sub eodem tecto mansissent, inter servos
supplicia penderent:” to which Paulus adds (
Sent.
Rec. 3.5, 5 and 6), “sed et hi torquentur, qui cum occiso in
itinere fuerunt,” and “ut occisa uxore etiam de familia
viri quaestio habeatur, idemque ut juxta uxoris familiam observetur, si
vir dicatur occisus.” In
Dig. 29,
5,
8, pr., we find the further
provision, “ut si poenae obnoxius servus venisset, quandoque
animadversum in eum esset, venditor pretium praestaret, ne emptori
injuriam fecisse videatur senatus.”
ORFITIANUM: passed under M. Aurelius and Commodus,
perhaps A.D. 178 (Ulpian,
Reg. 26, 7; Capitolinus,
Mare. 11), and relating to the right of children to
succeed to the property of their mother on her decease intestate. Under the
law of the Twelve Tables they were excluded, as a woman could have no
sui heredes, and in the sole case in which
they were her agnates (i. e. where she was
in manu
mariti) she, as a rule, could leave no property to inherit. By the
praetorian bonorum possessio the children were admitted next in succession
to agnates (Gaius, 3.30), but by this senatusconsultum they were preferred
even to the latter, and so succeeded in the first rank, though, if the
mother had been a freedwoman, the patron was entitled to a share equal to
that taken by each child (
Dig. 38,
17,
1,
9). The illegitimacy of the children was immaterial (Dig. ib. 1, 2;
Inst. 3.4, 3), nor was their right to succeed affected by their undergoing
capitis deminutio minima (Inst. ib. 2; Dig. ib. 1, 8). It is uncertain
whether the Senatusconsultum Orfitianum referred to by Paulus (
Sent.
Rec. 4.14, 1) is the same enactment. This explained the rule of
the
[p. 2.641]Lex Fufia Caninia, that slaves could be
manumitted in a will only by name (
nominatim),
by allowing the same effect to an unmistakable description:
“officiorum enim et artium appellatio nihil de significatione
nominum mutat, nisi forte plures sint, qui eo officio
designentur.” (Inst. 3.4;
Dig. 38,
17; Cod. 6, 57; Ulpian,
Reg. 26, 7;
Paul.
Sent. Rec. 4.10.)
PEGASIANUM: passed under Vespasian, perhaps in A.D.
73 (Gaius, 2.254-259; Inst. 3.23, 5 and 6; Ulpian,
Reg. 25,
14-16). Its principal provisions are noticed under
FIDEICOMMISSUM and
LEGATUM Another part of it (or
possibly a different senatusconsultum passed by the same consuls Pegasus and
Pusio) modified the Lex Aelia Sentia in reference to the capacity of a
Latinus Junianus to become a civis (Gaius, 1.31).
PERSICIANUM: passed under Tiberius, A.D. 34. It
took away the exemption from the penalties of caelibatus, without exception,
from all males over sixty and all females over fifty years of age, who
appear till then not to have been subject to the rules of the Lex Julia et
Papia Poppaea on this subject: Suet.
Claudius,
23; Ulpian,
Reg. 16, 3 (where the reading is Pernicianum).
PISONIANUM. [NERONIANUM.]
PLANCIANUM: assigned by some writers to the time of
Vespasian, and making an addition to a rule of law either contained in the
Lex Julia et Papia Poppaea, or grafted upon it by construction or some
amending enactment, that any fideicommissum which a heres or legatarius
bound himself by a written instrument or in any other secret mode to pay or
give to a person who was legally incapacitated from taking it should be
forfeited to the fiscus (
Dig. 30,
103;
34,
9,
10 and 18; 49, 14, 3). Such a
fideicommissum was called “tacitum,” and was said to be
“in fraudem legis,” as designed to evade the statute; but
if the promise to execute the trust was made openly (
palam,
Dig. 49,
14,
3), there was no
fraus;
and though the fideicommissum would fail by reason of the incapacity of the
fideicommissarius to take it, the rights of the fiscus would not necessarily
attach, other persons benefited by the will being preferred in such a case
of lapse. It would seem that, even where a “tacit” trust had
been undertaken, the fiduciarius was entitled to retain his quarta under the
SC. Pegasianum [
FIDEICOMMISSUM]; but the SC. Plancianum altered this by denying him
the quarta, and also disabled the fraudulent fiduciarius from claiming the
fideicommissum as
caducum, which he could
naturally have done if he had children [LEGATUM; BONA
CADUCA]: Ulpian,
Reg. 25, 17; cf.
Dig. 34,
9,
11;
35,
2,
59 (where the name of the senatusconsultum is given,
and where it is added that the fourth thus forfeited was given to the fiscus
by a rescript of Antoninus Pius). The penalty for the fraud applied only to
that part of the property to which the fraud itself extended; and if the
heres had a larger share in the inheritance than the property tainted with
the fraud, he had the benefit of the Lex Falcidia (or more precisely, of the
SC. Pegasianum) in respect of the residue: or, as it is expressed by
Papinian (
Dig. 34,
9,
11), “sed et si major modus institutionis quam
fraudis fuerit quod ad Falcidiam attinet, de superfluo quarta
retinebitur.”
There was a senatusconsultum which enabled a woman who had been divorced to
establish the status of her child, even though yet unborn, by a judicial
denunciatio addressed to the father within thirty days of the divorce, and
which by some writers (e. g. Bethmann-Hollweg,
Civil Process,
ii. p. 341; and Windscheid,
Lehrbuch des Pandektensrechts,
2.520, note 5) is called Plancianum; but there seems to be no authority for
this in the passages (
Dig. 25,
3,
1,
1 and 12) to
which they refer.
RUBRIANUM: enacted
circ.
A.D. 101, and empowering the magistrate to declare free slaves to whom
liberty had been bequeathed by fideicommissum, but whose masters attempted
to evade the obligation to manumit them by absence (
Dig.
40,
5,
26,
7
sqq.: cf. Savigny,
Zeitschrift,
&c. xii. pp. 307-311).
SABINIANUM. [AFINIANUM.]
SILANIANUM. The first senatusconsultum which we
definitely know to have been entitled after its proposer, was passed under
Augustus, probably A.D. 10, in the consulship of P. Cornelius Dolabella and
C. Junius Silanus. In a way it made slaves answerable for their masters'
lives, by providing that, where a man was murdered, all his slaves who were
in the house with him at the time, or with him elsewhere, should be examined
under torture as to the perpetrators and counsellors of the crime, and then
put to death for not having rendered him assistance (
Dig.
29,
5,
1, pr. and
sq.; ib. 6;--Paul.
Sent. Rec.
3.5,
passim). It would seem from Tacitus (
Tac. Ann. 14.42, in his note on which Lipsius
refers to Cicero,
Cic. Fam. 4.12) that this
was merely an old usage which the senatusconsultum made compulsory in all
cases of murder; but slaves who were under the age of puberty did not fall
under the enactment, by which, too, freedom was bestowed as a reward on any
slave who discovered his master's murderer (
Dig.
40,
8,
5;
38,
2,
4, pr.; 38, 16, 3, 4; Cod. 7, 13, 1). It was further provided that,
in all cases where it was suspected that a man had been murdered by persons
belonging to his own establishment, acceptance of the inheritance before the
examination of the slaves should cause its forfeiture to the fiscus from the
heres as
indignus (Paul.
Sent.
Rec. 3.5, 1, 2 and 10;--
Dig. 29,
5,
3,
29; ib. 5, 2;--Cod. 6, 35, 3): the same penalty attached to merely
opening the will, or applying for the bonorum possessio, and a heavy fine
was inflicted in addition. A senatusconsultum passed in the consulship of
Taurus and Lepidus (A.D. 11) enacted that the penalty for opening the will
of a murdered person could not be inflicted after the lapse of five years,
unless it was a case of parricide, to which this
temporis
praescriptio did not apply (Paul.
Sent. Rec.
3.5;
Dig. 29,
5; Cod. 6,
35).
TERTULLIANUM: stated by Justinian (Inst. 3.3, 2) to
have been passed under Hadrian, but in reality enacted in the reign of
Antoninus Pius, who succeeded Hadrian A.D. 138, and was himself succeeded by
M. Aurelius, A.D. 161: its precise date seems to have been A.D. 158
(Zonaras,
12.1). It related to the succession
of children, on their dying intestate, by the mother, who had no right to
inherit by the Twelve Tables, and whose position was only
[p. 2.642]partially improved in this respect by the Edict (which gave her
a title among cognates, postponing her to all agnati) and the Lex Julia et
Papia Poppaea. By this senatlsconsultum she became entitled to succeed her
issue intestate if, being freeborn, she had three, or being libertina she
had four children (Paul.
Sent. Rec. 4.9; Ulpian,
Reg. 26, 8; Inst. 3.3, 2); but she was postponed to children
of the deceased (Inst. ib. 3;
Dig. 38,
17,
2,
9;--Cod. 6, 57, 1, 4; 6, 55, 11), to the father (Ulpian,
loc. cit.), and to the frater consanguineus (Inst.
ib.); while other relations were allowed a certain share in the inheritance
with her (Inst. and Ulpian,
ll. cc.). Justinian
(Inst. ib. 4) did away with the necessity of the
jus
liberorum as a title to the benefits of this enactment, and
also with the deductions made in favour of other relations; he preferred the
mother to all other persons having a statutory title (
legitimi), except that brothers and sisters of the deceased
shared the inheritance with her: if there were brothers only, or brothers
and sisters, it was divided in equal shares between them and her; if sisters
only, she and they took in moieties. By Nov. 22, 47, he modified the rule
last stated, enacting that even where there were sisters only the division
should be
in capita. As under the SC. ORFITIANUM, the rights of the mother were not
affected by her undergoing capitis deminutio minima, or by the illegitimacy
of the deceased child.
TREBELLIANUM:
circ. A.D. 62. Its provisions are described under
FIDEICOMMISSUM
(Gaius, 2.253-258; Inst. 2.23, 4
sq.; Ulpian,
Reg. 14-16; Paul.
Sent. Rec. 4.2;
Dig. 36,
1; Cod. 6, 49.)
TURPILIANUM: enacted under Nero, probably in A.D.
61, for the purpose of preventing
praevaricatio, the fraudulent or collusive abandonment of a
criminal charge once preferred. The penalty is described by Tacitus (
Tac. Ann. 14.41): “qui talem operam
emptitasset vendidissetve, perinde poena teneretur ac publico judicio
calumniae [
CALUMNIA]
condemnatus.” [
Dig. 38,
2,
14,
2;
47,
15,
3,
3;
48,
16
(ad Senatusconsultum Turpilianum); Cod. 9, 45 (ad SC. Turp.).]
DE USUFRUCTU earum rerum quae usu consumuntur [
USUSFRUCTUS].
VELLEIANUM: enacted according to Ulpian (in
Dig. 16,
1,
2,
1) in the consulship of M. Silanus
and Velleius Tutor. There was a M. Silanus consul with Valerius Asiaticus in
A.D. 46 (
D. C. 60.27), and one of the same name
with L. Norbanus Balbus in A.D. 19 (
Tac. Ann.
2.59): if a Velleius Tutor was consul at all with a Silanus, it was
with L. Junius Silanus in A.D. 27; but this would seem to be too early for
this senatusconsultum, which, from Ulpian's language in the Digest, cannot
well be placed before the reign of Claudius, so that if any date must be
assigned to it the first of those given is apparently the most probable. It
provided that no action should lie upon any contract of suretyship entered
into by a woman as
promissor; at any rate this
was its main effect, as interpreted by responsa of the jurists and imperial
constitutions (
Dig. 16,
1,
1, pr.; ib. 2, 4). It would seem, however, to
have been the common practice (as. in the case of the SC. Macedonianum) for
the praetor to grant the action where there was any doubt as to the facts of
the case, leaving the defendant to protect herself by a plea (
exceptio) based on the senatusconsultum, which is
frequently mentioned in the texts, and which could be pleaded against
execution even after judgment had been delivered adversely to the woman
(
Dig. 14,
6,
11). Unlike the SC. Macedonianum, this enactment did
not allow of the creation of even a “natural” obligation by the
contracts against which it was directed; so that, if a woman paid the debt
of another person for which she had made herself answerable in ignorance of
her rights under the senatusconsultum, she could recover the money back by
condictio indebiti (
Dig.
12,
6,
40, pr.).
There were, however, a variety of cases in which she was disentitled to the
protection of this enactment: e. g. where she had been guilty of
dolus towards the creditor (
Dig.
16,
1,
2,
3); where the latter had no reason to believe the
surety to be a woman (Dig. ib. 12); where the guarantee was given for
valuable consideration (Cod. 4, 29, 23, pr.), or for a liability which
practically was the woman's own; or where the creditor was a minor, and the
principal debtor insolvent (
Dig. 4,
4,
12).
As to the history of the principle expressed in the senatusconsultum, there
are two views. According to one, which is supported by the actual terms of
the enactment preserved in the Digest ( “tametsi ante videtur ita jus
dictum esse, ne eo nomine ab his petitio neve in eas actio detur, cum
eas virilibus officiis fungi et ejus generis obligationibus obstringi
non sit aequum,”
Dig. 16,
1,
2), women had been forbidden to become sureties for
other persons even by the old Jus Civile, whose rules on this subject had
ceased to be operative, and were merely re-enacted by the senatusconsultum;
according to the other, the law was no older than edicts of Augustus and
Claudius, prohibiting wives from becoming answerable for the debts of their
husbands (
Dig. 16,
1,
2, pr.), and the greater stringency and extent of the
senatusconsultum were due to the recklessness with which women, after
Claudius had abolished the tutela legitima of agnati over them, exercised
their rights of administering and disposing of their property on behalf of
other persons.
[
Dig. 16,
1; Cod. 4, 29;
Bachofen,
Das Velleianische Senatusconsult, Ausgewahlte
Lehren, pp. 1-58; Hellfeld,
de Intorcessione Mutierum et
Senatusconsulto Veleiano (Op. Min. No. 4); Vangerow,
Lehrbuch der Pandekten, § 581: see also the
article on
INTERCESSIO]
VITRASIANUM: by some writers assigned to the reign
of Vespasian, by others to that of Hadrian; but without any very substantial
reason in either case: it provided that if the owner of a slave to whom a
third person had bequeathed freedom of fideicommissum was an infans, and so
unable to manumit, the act might be performed on his behalf by the praetor
(
Dig. 40,
5,
30,
6).
VOLUSIANUM (A.D. 56): penalising the pulling down
of houses for the sake of profit (
Dig. 18,
1,
52; Orelli,
Inscript. No. 3115:
cf. SC.
Hosidianum). Tacitus (
Tac. Ann. 13.28）
mentions a senatusconsultum passed in this year, and presumably entitled
after the consuls (Q. Volusius Saturninus and P. Cornelius Scipio), which
[p. 2.643]limited the powers of the aediles in respect
of taking pignora and inflicting fines. Another SC. Volusianum, mentioned in
Dig. 48,
7,
6, contained a rule similar to the English law of
champerty, that persons who joined in the suit of another, with the bargain
that they should share with him the damages awarded by the condemnatio,
should incur the penalties of the Lex Julia de vi privata.
[
G.L] [
J.B.M]
