THE SENATE
The Roman constitution, in the form in which we have left it at the
close of the period of its growth, was the chaotic result of attempts
to arrest internal revolution, and of feeble and misdirected efforts to
readjust the relations of outworn powers. A state in which three popular
assemblies have each the right of passing binding acts of parliament, in
which twenty magistrates with clashing authority have each the right of
eliciting the sovereign will of the people, possesses no organisation
which can satisfy the need for which constitutions exist—the ordered
arrangement of all the wants of civic life by means of a series of
uniform acts possessing perpetual validity. It is true that the search
for a personal authority is the object of theoretic, not of practical,
inquiry. The average man, who is fortunately the power that in the long
run determines the shape that politics shall assume, seeks law alone and
cares nothing for its source. The vagueness of the ultimate power does
not affect him, if the rules it lays down are rigid and binding; he will
accept principles in place of persons, and by doing so he proves that he
is more scientific than the scientists. But the fundamental principles
that lie behind the personal power in a state are too vast in their
scope to apply immediately to the needs of human life. They require
interpretation by means of legislative and executive authorities; and if
these acts of interpretation are to have the character of principles,
the dictating authorities must have a fixed character and a permanent
life, and there must be some guarantee that they shall submit their
judgments to the accumulated experience of the past. No such character
and no such guarantee were to be found in the existing elements of the
Roman state which had strict legal recognition. The _comitia_ could,
like a parliament in a modern state where no provision for a constituent
assembly exists, go on in an endless career of constitution-making; the
magistrates could interpret the laws at their own will, and by fighting
out the merits of their rival interpretations amongst themselves paralyse
the state or plunge it into anarchy. It was felt that a central power
must reside somewhere, a power which should guide the people and control
the magistrates, a power which should above all avert the terrible
conflicts between rival authorities so amply encouraged by the existing
law.
It was scarcely necessary, at any one point in the growth of the Roman
constitution, to raise the question where this power was to be found. A
chain of circumstances, some internal and some external, had provided
a body of men possessing the three main qualifications necessary for
the exercise of central authority—permanence, experience, and the free
power of deliberation. With every step in the professed extension of
popular privilege the power of the Roman Senate had increased; and the
explanation of this anomaly is to be found in the fact on which we have
already dwelt, that the distribution of authority amongst the popular
assemblies, and the increase in the number of the magistracies, had
involved such a weakening of the authority of magistrates and people as
to render both incapable of any pretence at effective rule. The long
series of wars in which Rome was engaged, from the commencement of the
struggle with Pyrrhus to the close of the third contest with Carthage,
and the new duties of administration entailed by the organisation of
Italy and of the earlier provinces, exhibited this incapacity in a still
more glaring light. But the growth of the Senate’s authority cannot be
attributed mainly to the necessities of external administration; for the
fundamental changes which conditioned its pre-eminence had come when
Rome was little more than a city-state, and the Senate would have ruled
had Rome continued to govern a tract of territory no larger than that
possessed by a Cretan city. The Empire was the final ratification, the
seal of the Senate’s authority; but the origin of this authority is to be
found, not in the accident of conquest, but in the working of the Roman
mind itself.
The circumstances which determined the growth of the power of this
great council of state are connected, firstly, with the constitution of
the council itself; secondly, with the changes in its presidency; and
thirdly, with its absorption of isolated powers, some of which it drew
from the incompetent hands of magistrates and people, others of which it
created.
(i.) A nominee body, such as the Senate had originally been, may be
moulded by the will of the nominator. The personal selection by the
consuls of their intimate friends, the habit of omitting, at the annual
revision of the list, the names of those who were alien to them in
sympathy, while favouring the dignity of the aristocracy by making it
appear as though exclusion were based on arbitrary preference and not on
censure, yet diminished the independence and lessened the prestige of
the councillors thus arbitrarily selected. It is true that the work of
selection was performed by two consuls, and the judgment of the one might
be balanced by the prejudice of the other; it is also true that public
opinion would have been shocked by the choice of unworthy members of the
magisterial council, and that the aristocracy itself would have resented
the omission of a name distinguished by the great deeds of its possessor
while in office; but the self-existence of this council could only be
secured by the one great device of taking from the magistrate, whose duty
it was to consult, the selection of the men whose duty it was to furnish
him with advice. An opportunity for effecting this change was offered by
the institution of the censorship. The selection of the Senate (_lectio
senatus_) is indeed no part of the _census_, nor do we know when this
highest of all the privileges of the censors was transferred to the new
authority. But by the year 312 not only, as we have seen,[1301] had the
transference been effected, but conditions of selection had been imposed
which made the Senate partly a body of ex-curule magistrates, partly of
nominees who had done good service to the state in the lesser grades
of the magistracy or the higher ranks of the army. The vista that lay
before the eyes of all aspirants to office was now no longer the annual
magistracy, temporary in its nature and hampered by restrictions of every
kind, but the seat in the Senate to which it was the stepping-stone.
Within the charmed circle the grades of rank were still of importance,
and the “servants of the order,”[1302] as the magistrates now tended
to become, could find in the magnificent displays of the aedile, the
high judicial functions of the praetor, the military leadership of the
consul, and the moral control of the censor, the graduated satisfaction
of the most diverse ambitions. But, even before the point of transition
marked by the curule magistracy had been passed, the Roman noble tended
to identify his interests with those of the house to which fate and the
inevitable suffrages of the people had destined him. Interest even more
than conviction would sanction such a choice; the vast nominal powers
of the magistracy he could wield but for a year; of the clique of Three
Hundred he was a life-long member. And the depressing influence, which
contact with some scores of middle-aged and experienced men must have
over youth even when blessed with genius, completed the work which
interest and a vague class sympathy had begun. The new member moved in
that narrow circle of ideas which through its very narrowness was strong
enough to baffle Pyrrhus, Hannibal, and Philip, and to half complete
the organisation of the world. The men that rose above it—Scipio, the
Gracchi, Caesar—found endless difficulties in their path, and originality
of conception, which is conspicuous by its absence in the organisation
of the Roman Empire, led its possessors to exile, death, or monarchy.
But the restraining influence was felt only in the essential principles
of politics; in the control of details a free hand was still given to
the administrator, and individuality of a uniform, decorous, and sober
kind, combined with a high average level of practical ability, is to
be found in the Roman senator of the best period. The narrowness of
interest, the selfishness and the corruption, which are the besetting
sins of a corporation with an assured tenure of rule, were also weakened
in the case of the Roman Senate by the fact that, through the elective
principle, it was always in constant touch with the people. It is true
that the Senate was a parliament, the members of which were elected for
life—a parliament, therefore, that might easily cease to represent the
wishes of the electorate; but each member, until he obtained the coveted
prize of the consulship, was ever submitting himself to the suffrages
of the people in order to pass from grade to grade of honour. The
susceptibilities of the “great tame beast” had to be respected; its eyes
must be dazzled by occasional popular measures, by military achievements,
at the worst by private bounty or by brilliant shows. The coterie system
that worked the elections could do much, but it could not do everything;
the race for honours provided _stimuli_ sufficient—even when the public
opinion of his own order failed—to keep a counsellor of Rome up to a high
level of efficiency.
An order of nobility that is practically hereditary tends to attach
to itself titles of nobility and external distinctions of dress. The
democratic nomenclature of the Romans prevented the development of
the first, and although within the Senate the grades of rank were
clearly marked, and the distinctions between _consulates_, _praetorii_,
_aedilicii_ and the former holders of lesser magistracies were observed
in the order of debate, these designations were not employed as constant
epithets. But the desire of emphasising difference of functions by
external signs, which is such a strongly marked feature in Roman public
life, revealed itself fully in the senatorial garb. The present or past
holder of curule office wore the purple-striped toga of the magistrate,
the ordinary senator bore on his tunic a stripe of the same colour, which
during the last century of the Republic was distinguished by its breadth
from that worn by the order of the equites. Still more distinctly a
part of the senatorial _insignia_ is the senatorial shoe of red leather
(_calceus mulleus_), which, distinct in shape as well as in colour, was
worn by no other members of the state. The origin of the distinction is
obscure; tradition explained the sandal as the royal footgear,[1303]
which continued to be worn by the patrician senators in their character
of potential kings (_interreges_).[1304] The gold ring the senators
shared with the members of the equestrian order. Since the nobility of a
senator ended with his life, it is needless to remark that the _insignia_
could not be transmitted to descendants. Yet, as some of them—the gold
ring and perhaps the _latus clavus_—had merely a social sanction, it is
not improbable that the practically hereditary nature of the nobility had
led to their being worn by members of senatorial families destined to
follow their fathers’ career. There is, at least, no reason to suppose
that the youthful order of _laticlavii_ was an invention of the Emperor
Augustus.[1305]
The identification of the magistracy with the Senate, which had been
practically complete by the close of the third century of the Republic,
was perfected in law by the dictator Sulla. The quaestorship was now
made the stepping-stone to the Senate;[1306] the personal selection by
the censors—which, in the face of unwritten custom, had been growing
weaker year by year—was dispensed with; while their more important
right of rejecting unworthy members could be resorted to only when the
censorship was occasionally galvanised into new life. An automatic mode
of recruiting the order should, if the power and dignity contemplated
by the reactionary legislator were to be secured, have been accompanied
by an equally automatic method of divesting of their rank those who had
proved unworthy of it. But no such system was devised, and the morals
of the Senate were for the first time left to chance, or rather to the
reasonable hope that after the age of thirty-one (the lowest period of
life at which senatorial dignity could be held) the character once formed
would not deteriorate.
A more important factor in the change introduced by the Cornelian
legislation was the permanent increase in the numbers of the Senate.
Doubled by the immediate action of the dictator, the body continued to
maintain its complement of about 600 members; for twenty annual additions
of ex-magistrates of the usual quaestorian age would enable it to retain
this normal level. The large size thus given to the senatorial body is
one of its most surprising features, when we consider the business with
which it had to deal. Secrets that are uttered with bated breath in a
modern cabinet were proclaimed aloud at Rome to an assembly of the size
of a modern parliament. But there were no reports of proceedings for
the eyes or ears of the outside world, and secrecy about reasons for
policy was sometimes only too well kept. Such secrecy was often treated
as suspicious by the professed leaders of the people at the close of the
Republic, and the consciousness of danger felt in the Senate seemed mere
weakness to the mob. The history of the Senate, if it does not show the
futility of secret diplomacy, may yet prove it to be unnecessary that
this diplomacy to be effective should be entrusted to a few.
(ii.) The freedom and power of a deliberative assembly depends very
largely on the unrestricted right of debate and initiative possessed
by its individual members. In theory the Roman senator was sorely
hampered in the exercise of both of these powers. The body to which he
belonged ever retained its formal character of a council of advisers;
the magistrate might summon it or not at his discretion, might refuse
to lay a particular question before the house, or decline to elicit
the opinions (_sententiae_) of some suspected members, opinions which
they had no power to give unasked. So long as these powers were in the
hands of two consuls, a conspiracy of silence might easily impede the
expression of the Senate’s judgment; but when the right of summoning and
of laying business before the house became the property of the praetors
in virtue of their _imperium_, and was subsequently, by an anomalous
recognition of a revolutionary power, extended to the tribunate, the
number of possible presidents was increased to twenty, and the Senate
again drew its strength from the dissensions of the magistrates. Twenty
men, even if they all represent a nobility, must also represent different
shades of opinion, and will attempt to elicit views corresponding to
their own, which may then be submitted to the approval and the votes of
the house. The practice having early arisen that it was only a definite
expression of opinion coming from some quarter of the house that should
be submitted to the approval of its members, the magistrate, eager to
put the desired motion (_relatio_), is now to a large extent dependent
on the senator. And the few gaps that still remain in the latter’s power
of initiative are filled up by ingenious fictions of debate. The senator
would rise, unburden his soul of cherished views on matters alien to the
debate,[1307] and then make his speech conform to the rules of the house
by concluding with a formal opinion on the direct issue put before it by
the magistrate. In one instance at least we find the method reversed;
the great political crime of Carthage’s destruction was prepared by the
famous _sententia_ of Cato,[1308] often repeated in speeches on unrelated
topics, and having no connexion with the issue that was directly before
the house.
To understand the facilities for information and the freedom of debate
possessed by the Senate, we must have a clear view of the functions
of its presidents and of the position of the ordinary magistrates in
that assembly. The right of summons and the right of laying business
before the body were inseparable; both were possessed by three orders
of magistrates—consuls, praetors, and tribunes. But law, in the shape
of the power given by the _major potestas_, made it impossible for the
praetor to exercise his right of summons in defiance of the consul; while
custom dictated that even the tribune should not exercise this right
when the consul was at Rome. But, once the summons has been issued and
obeyed, the convoker of the council is not its only president. The three
classes of magistrates have each the right of reference, and each in
an order prescribed by customary law. The consuls’ motions come first;
they are followed by those of the praetors, and then the tribunes have
their turn.[1309] This system of priority, although necessary to prevent
confusion, was under ordinary circumstances a matter of comparative
unimportance. It could only become a serious hindrance to the freedom of
debate if the consul abruptly dismissed the meeting before a decision
had been reached on some question of pressing importance,[1310] or
if a method of systematic obstruction were adopted by some senator,
who wasted the hours with prolix oratory until the setting of the sun
made a suspension of business legally necessary. But the former device
was revolutionary in its character, and on the occasion of its use a
fit preparation for a revolution; while the latter seems to have been
employed, as by the younger Cato during Caesar’s consulship, as a
weapon against an offensive _relatio_ already before the house.[1311]
The president himself had ample powers for meeting such designs; in the
case in question the consul had the obstructive stoic haled from the
room.[1312]
A more serious danger would have been the absence of information from the
officials who succeeded the consul in putting motions before the house;
but this was obviated by the power which magistrates had of speaking
(_verba facere_) without invitation at any period of the debate. This
power was possessed as an admitted right by those magistrates who were
themselves presiding; the quaestors, whose financial statements were
indispensable, and the aediles may have exercised it only on sufferance.
This privilege was the more necessary as the presiding magistrates
at least could not be asked their opinion by the official who held
the attention of the house; they could not give advice, for they were
themselves seeking it of others.
Custom had determined with equal care the method by which opinions should
be elicited from the unofficial and advising members of the house. The
question “what is your advice?” (_quid censes?_) was put by the president
to each senator in an order corresponding to his official rank. In the
days of the activity of the censorship, it was this magistracy which
had determined the president’s first selection; the censors had placed
at the head of their list the name of some distinguished man (often
himself an ex-censor), and it was this “chief of the Senate” (_princeps
senatus_) whose opinion was first sought. But, after Sulla’s reform in
the constitution of the order, there is, in spite of the occasional
revival of the censorship, no certain evidence of the perpetuation of
this dignity. Henceforth a body of _consulates_ holds the first place,
and from these the presiding magistrate—at least the consul who opens the
business of the house—chooses his first adviser, according to no settled
rules, but with due regard to seniority or personal distinction.[1313]
The only exception to this practice was to be found in the latter
half of the year, when the consuls elect, either in virtue of their
quasi-magisterial position or because they might themselves have to
carry out the decrees which were being discussed, took precedence of
the consulars.[1314] From the latter the question passed down through
the _praetorii_ to the men of aedilician or tribunician rank, and so
finally to the lowest grade of all—the ex-quaestors; and it is probable
that, in every grade, the rule of consulting a designated magistrate
before an ex-magistrate was observed. It is obvious that this procedure,
when rigidly adhered to, left the non-curule members of the Senate only
an infinitesimal chance of a share in the debate. These had always been
known as _pedarii_, in contradistinction to the _curules_; originally
nominees of the censors, they included after the time of Sulla the
former tribunes and plebeian aediles, and the members of quaestorian
rank. As they were rarely reached in the debate, they seldom had the
opportunity of expressing an opinion, and hence arose the erroneous
notion of some antiquarians that the _pedarii_ were given the right
of voting but not the power of debate.[1315] But restrictions of this
kind, arising from practice and not from law, were never pressed by the
Romans. The repute of a man who had not reached curule rank might exceed
that of all the other senators; the principle that would open the lips
of a Bibulus and close those of a Cato was recognised as mischievous in
certain emergencies, and it was the latter who as tribune elect—that is,
as a _pedarius_—moved the resolution which condemned the Catilinarian
conspirators to death.[1316]
From the mass of opinions elicited in the course of the debate, the
president might choose any that he pleased to submit to the judgment
of the house. The safeguard of the individual senator was here found
in the number of the presiding magistrates. As a rule the same order
was followed in putting _sententiae_ to the vote as had been observed
in eliciting them; but out of an aggregate of opinions that, with
differences of detail, gave practically the same advice, the president
might choose that which he considered most to the point or best worded
as the one to be submitted to his council. It was certainly an unusual
step when, in the historic debate of December 5 in the year 63 B.C.,
Cicero put to the vote the _sententia_ of Cato in place of the similar
but weaker resolutions of the _consulares_;[1317] but the consul in this
exercise of his discretionary choice was acting well within his rights.
One is sometimes surprised, considering the rigidity of the procedure
and the size of the body, at the amount of business that appears to have
been transacted at a single meeting of the Senate. But both the rules
of procedure and the Roman temperament account for the rapidity of the
debate. As regards the former it must be remembered that no motion could
be put unless pressed by a magistrate, that there was no distinction
between substantive motions and amendments, that alternative proposals,
therefore, had not to be submitted in detail to a division, that the
carrying of one motion generally swept all _sententiae_ on the same
subject aside, that motions for adjournment did not take precedence of
other motions, and that the business of the house was not interrupted
by this modern device for wasting time. We must also remember that a
division in the modern sense of the word was rare, and that it appears
seldom to have been necessary to take the numbers of the members who
respectively supported or were adverse to a motion.[1318] The estimate
of the voting was in fact going on during the debate; it was the custom
of the senator, often without rising, to express a few words of assent
to a former speech,[1319] and it was not unusual to leave one’s bench
and take up a position near the man whose opinion one supported.[1320]
The sense of the house could thus often be taken before the debate
had ended; where it was not obvious the consul urged to a division
(_discessio_);[1321] even then it is improbable that recourse was had to
counting, unless the parties on either side were very evenly balanced.
Other reasons for rapidity were to be found in the Roman temperament
and in the intellectual atmosphere of the house. The Roman, until his
better nature was corrupted by the schools of Athens and Rhodes, was a
man of few words; the Senate was the least likely body in the world to
be swayed by florid eloquence; clearness and brevity were the qualities
most in demand, and even at the close of the Republic, when the Senate
had surrendered itself to the perilous pleasure of listening to carefully
woven sentences, the “paint pots” of Cicero[1322] were still in all
probability the exception and not the rule.
The voice of the majority of the Senate was embodied in a resolution
(_senatus consultum_). Considered as the mere advice of the magistrates’
council it had no legal validity whatever; its binding character sprang
from the fact that it was a decree of the magistrate applying to a sphere
in which he was himself competent to issue such injunctions. Hence, as
we have seen,[1323] the veto pronounced on a decree of the Senate by
the colleague or superior of the magistrate who has elicited it, is
no exception to the rule that the acts of corporations or of private
individuals were not subject to this form of invalidation. So little
was this the case that, when the decree had been vetoed, the advice of
the Senate still remained unimpaired. The annulled resolution was still
drawn up, but it had become an _auctoritas_ merely.[1324] It was still of
sufficient potency to bind constitutionally-minded magistrates, but it no
longer imposed the duty of obeying it on the community. The _consultum_
or _auctoritas_ was drawn up at the place of meeting soon after the
resolution which it embodied had been passed. As there were no permanent
officials of a responsible character to see to its redaction, a small
committee was appointed by the president to attest the genuineness of the
document;[1325] this consisted usually of the author of the resolution
and of some of his supporters.
(iii.) The Senate exerted its developed authority under two different
aspects. It was the body which exercised the power of previous
deliberation on matters which must be submitted to the judgment of a
nominally higher authority, the people, and it was a council which
professed to give final directions to the magistrates on the conduct
of their administrative duties. It possessed no sphere of its own in
which it could act unassisted by magistrates and people, and thus its
formal independence is far less than that possessed by such a body as
the Athenian _Boulê_. The only department of state in which it seems to
have independent authority—the power of perpetuating the very life of the
_civitas_ by the appointment of an interrex—belongs strictly not to the
Senate but to its patrician members; and even for the exercise of this
right during the Republic the motive power had to spring ultimately from
a magistrate of the Plebs.[1326]
The Senate by exercising a probouleutic authority showed its sense of
its own limitations. Occasionally, as we shall see, it usurped isolated
powers that belonged of right to the people; but as a rule its final
authority was only felt in that vast sphere of executive influence that
had been formerly entrusted to the magistrates. It could control, but
it might not usurp, the sovereign powers of the people; it elected no
magistrates; it possessed no legislative authority; it could not declare
war or make peace; it dared not extend the limits of Roman citizenship
by the conferment of the franchise; it made no claim to the exercise of
jurisdiction or of the still more sovereign right of pardon.
Yet, when it is remembered that the activity of the _comitia_ in all
these matters could only be set in motion by the magistrate, and that
the Senate’s advice had grown into a real power of control, it is easy
to see that the first step in every measure of importance must come
under the cognisance of this all-pervading council. Its probouleutic
authority was based on the observance by the magistrate of certain
unwritten rules, which regulated the exercise both of his positive and
of his negative powers. It was held that no magistrate should question
the people on any important matter without the Senate’s advice, and
that he should not decline to exercise this power at its request; that
the power of veto should be employed only at the discretion of the
council, and that the request for its exercise should not be refused.
These unwritten principles were, as a rule, strong enough to fetter a
magistrate’s action by his conviction of their necessity; when this
conviction was not sufficiently strong, the Senate resorted to its last
constitutional weapon, the veto of a friendly magistrate. For this
purpose the tribunician college was usually employed; its size offered
the largest scope for differences of opinion, for of the ten legally
supreme magistrates of the state one at least could generally be found
to whom the Senate’s word was law. The blocking of legislation through
the _intercessio_ of a senatorial tribune may be illustrated by the
attempt of Octavius to negative the agrarian legislation of the elder
Gracchus:[1327] the effort to annul an administrative order of a sweeping
kind by the veto pronounced against the proposal of the praetor Juventius
when, without consultation of the Senate and without previous intimation
to the consuls, he attempted to urge the _comitia_ of the people into a
declaration of war with Rhodes.[1328]
In dealing with the powers of the Senate two courses lie open before us;
we may either treat them in the order of their growth and show how the
successive usurpations were effected, or we may describe them as they
existed in their developed form. The first method would have more of an
historical interest, but, apart from its difficulty and obscurity due to
the frequent lack of evidence, it would result in a wholly unsystematic
classification of the aggregate of acquired rights. It is preferable,
therefore, to deal with the Senate’s powers in their developed form, with
a preliminary warning that they were gained at very lengthy intervals
and by very different means. Some, such as the control of finance, were
usurped from the magistrate; others, such as the dispensation from laws,
were stolen from the people; to others again, such as the control of the
details of provincial government, the Senate had an altogether peculiar
right, such powers being created during the period of the growth of its
ascendency.
With the election of magistrates the Senate of the later Republic had
no direct concern, and the people alone claimed the perhaps not wholly
constitutional right of deposing them. But towards the close of its
tenure of power, when the struggle for existence caused it to strain
its prerogatives to the utmost limit, we find the Senate claiming the
very analogous right of suspending a magistrate from the exercise of
the functions of his office. A charge of turbulent proceedings was the
motive for the suspension of Caesar from the praetorship, and of Metellus
Nepos from the tribunate in 62,[1329] and Caelius Rufus was ejected,
on the allegation of similar misconduct, from the curule chair of the
praetor in 48.[1330] The use of this power against the praetor, or indeed
against any magistrate subject to the _major potestas_ of the tribune,
is comprehensible; for the latter might, at the bidding of the Senate,
inhibit any official from the exercise of his customary functions; how
the power could be employed against the tribunate itself is one of the
hidden mysteries of senatorial usurpation.
The power of legislating, that is of establishing fundamental changes
in civic relations, was never claimed by the Senate; nor had it ever
possessed any legal right to suggest or impede the making of a law. The
_patrum auctoritas_, like the _interregnum_, had resided only with the
patrician members of that body; and the power of previous deliberation
claimed by the later Senate as a whole was merely one of the inevitable
results of the balance of power within the magistracy. Such slight
approximations to law-making as are found were simply the result of
consultation by the magistrates on questionable points. The Senate
reaffirmed an ancient principle that the confession of a slave which
might doom his master to death or exile should not be wrung from him by
torture;[1331] it might even infringe so much on the freedom of contract
as to suggest a current rate of interest[1332]—a principle which the
praetor might respect if he cared or if his colleague obliged him to do
so.
But here again we meet with the strange anomaly that the Senate can
destroy where it cannot create. It claimed the sovereign privilege of
exempting individuals from the operation of the laws, and the claim
which was an admitted usurpation was sanctioned by custom. Formerly the
sovereign people could alone grant such dispensations, but the motion
submitted to the people was first approved by the Senate. Very gradually
the second stage in the proceedings was dropped, for it was considered
the merely formal sanction of an already accomplished act; and the
senatorial right of dispensation was assured until it was attacked by
the tribune Cornelius (67 B.C.). The proposal that it should be restored
to the people was successfully resisted, but a compromise was arrived at
by which it was agreed that no act of dispensation should be valid which
had not been approved by a house of at least two hundred members.[1333]
This provision, evidently meant to prevent the abuse of the power for
purely personal or party ends, did not fulfil its purpose, for _senatus
consulta_ of this kind were gained by influential men on the slightest
pretexts and for the most unworthy objects.[1334]
An observance of certain forms had always been necessary for the
legislative activity of the people to be regular and valid. In countries
which recognise the sovereignty of parliament, the guardian of such
forms is in the first instance the legislative chamber itself, in the
second the courts of justice, which can, or should, be allowed to refuse
to put into effect any law that has been passed in disregard of such
formalities. This was the case at Rome. The laws themselves contained
clauses which pronounced their ineffectiveness in case they should be
found to violate the principles of the constitution, and the courts of
justice had the courage to resist the enactments even of the provisional
government of the dictator Sulla. But the executive authority might also
have doubts about the propriety of putting into force a measure which it
recognised to be irregular; and of this executive authority the Senate
was the guide. Hence its well-established claim to point out a flaw in
a legislative enactment, to establish the fact that the magistrate had
questioned the people improperly, and that the answer of the people was
therefore null and void. The exercise of this revising power once led
to the greatest upheaval that Roman history records. It was by pointing
out that the law of the younger Livius Drusus, which contained amongst
its other clauses the gift of _civitas_ to the allies, was irregular
as contravening the condition fixed by a _lex Caecilia Didia_ (98
B.C.) that wholly different enactments should not be contained in the
same _rogatio_,[1335] that the Senate brought to a head the formidable
conspiracy which culminated in the outbreak of the social war. History
also brings to our notice the attempted reversal by this means of a
popular judgment of a far smaller kind. It was suggested in the Senate
that a notice of the alleged irregularities of Clodius’ _plebiscitum_
should be made the ground of Cicero’s recall; but the exiled orator,
while thinking that there was “something in the notion,” yet preferred
the far safer form of an abrogation of the enactment by the popular voice
itself.[1336]
When we turn from legislation to its complement of jurisdiction we find
little direct interference by the Senate with the regular course of
either civil or criminal procedure. On exceptional occasions it might
decide the sphere of the praetor’s activity,[1337] and by its practical
weight in the declaration of a _justitium_ it might suspend the operation
of the business of the courts; but it did not interfere in the details of
such business, and the appeals to the vetoing magistrates were left to
their own discretion.
With respect to the criminal jurisdiction of the regular courts, although
the Senate never assumed a faculty for determining the procedure or
the sentence, it sometimes took the initiative in a prosecution by
suggesting that a charge should be brought, and this implication _might_
be contained in a senatorial judgment that a certain course of action
was _contra rem publicam_.[1338] With respect to an extraordinary
commission, the true theory of the Republic was that it could be
established only by the people. The procedure adopted against Clodius
for the violation of the rites of the Bona Dea is typical of the
constitutional method that should always have been employed. The offence
which he had committed—though vaguely designated “incest”—was one that
in that particular form was unknown to Roman law. First the college of
pontiffs is consulted, and pronounces the act an offence against religion
(_nefas_); then a decree of the Senate is framed specifying the crime and
the procedure, which is modelled as closely as possible on that of the
ordinary criminal courts. This decree is then submitted for ratification
to the judgment of the people.[1339] Acts of attainder are a lamentable
confession of weakness in a political, social, and legal system; but it
was right that this weakness should not be remedied by an administrative
authority representing a single caste.
But there were certain emergencies which it was thought could not be met,
even by the establishment of a special judicial commission. Epidemics of
crime, such as poisoning, arson, murder, seemed to demand the immediate
exercise of the magistrate’s _imperium_, and for this exercise the
Senate is the directing and controlling force. Such an exercise of
magisterial _coercitio_ at the behest of the Senate is practically a
declaration of martial law, although the Senate by its decree does not
create a new power, but simply urges the magistrate to set free the
forces latent in his _imperium_. The earlier Republic had provided a
suspension of constitutional procedure in the form of the dictatorship as
a means of meeting such an emergency; the later constitution had no such
provision, and the burden of responsibility fell on the joint shoulders
of Senate and magistrates. Whether the exercise of such summary capital
jurisdiction was legal depended on the status and sex of the victims. If
the 170 women put to death for poisoning in 331 B.C.[1340] were executed
by magisterial decree, the act was legal, for women had no right of
appeal. Similar legality attended its exercise over provincials;[1341]
and, if similar sentences were inflicted on Italian allies,[1342] it was
a gross violation of treaty obligations, but not of the laws of Rome. The
male citizen alone might not be put to death in this summary fashion; and
if the Roman members of the great criminal society of the Bacchanalian
guild were executed without appeal,[1343] this was a judicial murder only
justified by the horror excited in the public mind by the blackest crimes
masquerading under the guise of religion. We still possess a fragmentary
copy of the decree by which this “conspiracy” was repressed; in it the
Senate thinks that “capital punishment should be inflicted,”[1344] but
the decree does not by its wording suspend the ordinary laws of appeal.
This guardianship of the state against conspiracies (_conjurationes_) may
have been the precedent for a power, the legality of which, as exercised
by the Senate during the last century of the Republic, was hotly
contested. This was the power of declaring the existence of a condition
of things which the Greeks would have denominated στάσις, of singling
out a party in the state and its leaders as enemies (_hostes_) to the
Republic, the latter being professedly represented by the Senate itself
and the magistrates who happened to be friendly to it, and of advising
the magistrates who were its presidents, above all the magistrates with
_imperium_, and sometimes even the pro-magistrates,[1345] to employ
every means of summary coercion to ward off the impending danger. The
formula for thus entrusting the guardianship of the community to a clique
of friendly magistrates was expressed in the words “that the consuls,
praetors, and tribunes of the Plebs (with the addition at times of
other officials with the _imperium_) should see that the state took no
harm.”[1346] After the passing of this decree the responsibility of
the Senate ceases; the magistrates act at their own peril and cannot
again devolve any responsibility for a judicial murder they may have
committed in the execution of their instructions by again consulting the
Senate on the guilt of their victims or on the method of execution to be
employed.[1347] There were obvious reasons which rendered it impossible
for this power to be based on any distant precedent; like the power last
discussed it was a substitute for the vanished dictatorship, which was
an integral part of the constitution, and subsequently to the decline of
this office there was no revolution in Rome antecedent to that which was
held by conservatives to have been inaugurated by the legislation of the
Gracchi. But, even apart from the question of precedent, the absurdity of
the Senate’s claim to be guardian of the Republic is manifested by the
fact that the opposite party in the _stasis_ might more truly represent
the theory of the constitution, as the Gracchan party did, than the
Senate’s government itself; a broad line separates political opposition,
even with the utmost force to back it, from criminal conspiracy against
society, and by the passing of this “ultimate decree” the Senate declared
itself the _author_ of a revolution. The controversy as to right is
here insoluble: the insolubility depends on the fact that there was no
permanent government at Rome except that of convention and of force.
Yet Roman sentiment would have declared that there were times when the
decree and its consequences were justified. Force can only be met by
force, and a gathering such as Catiline’s army in Etruria was a fair
object of attack by the executive authorities; but sentiment would not
have allowed the execution without appeal of a few prisoners captured
within the city, however grave the danger. A state of war must be
recognised, but there was no power in the Roman state that could declare
martial law and execute its consequences.
The exercise of this unprecedented power evoked a vigorous protest from
the true government, the people.[1348] The plebiscite passed by the
younger Gracchus was aimed more directly at the magistrates, and it
improved on the Valerian laws by enacting “that no _judicium_ should be
exercised on the _caput_ of a Roman citizen without the consent of the
people.”[1349] But it is possible that it made senators individually
responsible for the decree authorising such conduct on the part of the
magistrates,[1350] and it is almost certain that it abrogated a clause in
the law of the Twelve Tables by declaring that the Plebs might exercise
capital jurisdiction against a magistrate guilty of violating the
provisions of the measure.[1351] Henceforth there could be no question of
the illegality of the _ultimum senatus consultum_, for Cicero’s quibble
that the Gracchan law only protected the lives of _cives_, and that
individuals specified by the Senate had been declared _hostes_,[1352] is
an argument in a circle. It is this latter possibility which the Gracchan
law denied; and though common sense might interpret certain overt acts
as a sign of war against society, no degree of treason could _ipso jure_
make a citizen into an enemy unless that treason had been proved in a
court of law.
More justifiable than the power which we have just considered was
the police-control which the Senate exercised in Rome. Here, as in
other matters of administration, its attention was confined to great
and exceptional emergencies. In the absence of all facilities for the
expression of public opinion in Rome, except through the medium of a
magistrate, the ancient trade guilds (_collegia artificum_) formed
convenient centres for electioneering in the democratic interest. The
fact that towards the close of the Republic their weight was thrown
into the anti-senatorial scale led the government to regard their
existence as inimical to public order. A decree of the Senate of the
year 64 B.C. summarily dissolved all but the most venerable guilds
which were supposed to derive their origin from Numa;[1353] and this
sudden suppression may be regarded as a last step in a long career of
administrative interference, no record of which has been preserved by
history. Private political clubs, on the other hand, such as were known
by the names of _sodalitates_ and _decuriati_, did not come under the
immediate cognisance of the magistrate; for their coercion the Senate
had to procure the passing of a law.[1354] But minor details connected
with bribery and corruption were within its competence. It infringed the
inviolability of the magistrate’s house by allowing search to be made
there for incriminating proof of corruption, and it directed that whoever
should be guilty of harbouring professional election agents (_divisores_)
at his dwelling should be liable to a vote of censure and possible
prosecution.[1355]
If we now turn from the corrective to the administrative activity of the
Senate, we shall find that this was exhibited chiefly in the departments
of foreign relations, finance, and religion.
The primary spheres of foreign activity are the declaration of war,
the making of peace, and the framing of alliances. All these powers
belonged of right to the people, and, as regards the first, there was
never any question that the Senate’s position was merely that of a
constant adviser. The two latter powers merge into one another, for a
state that was not on some terms of alliance with Rome was, according to
the rude notions of the prevailing international law, an enemy of the
Republic. There appear at intervals during the Republic signs of a keen
but advantageous controversy as to whether the right to conclude binding
treaties in the name of the Republic was possessed by the _imperator_ in
the field, as well as by Senate and people. To profit by the oath of a
general when it entailed success, to disavow it when it meant failure,
and in this case to hand the unfortunate commander, who had saved Roman
lives but not Roman honour, bound and naked as a scapegoat to the enemy,
were the convenient results of this condition of juristic doubt. The
Caudine Forks in Samnium, Numantia in Spain, and the neighbourhood of
Suthul in Numidia saw Roman generals and their deluded adversaries equal
victims of this controversy.[1356] But the opinion finally prevailed
that without the consent of the Senate and the people no sworn treaty
(_foedus_) could be binding.[1357] The practice as to the division of
this authority between the council and the assembly varied from time
to time. In the earliest period a treaty of peace seems to be within
the competence of the magistrate, and therefore of the Senate; in the
constitution of the middle Republic, as revealed to us by Polybius, such
an agreement is always submitted to the people for ratification,[1358]
but the close of Republican history shows cases where the Senate alone is
mentioned as the deciding authority.[1359]
But the people had at all times merely the final ratifying authority in
these matters. The diplomatic negotiations that preceded the conclusion
of an agreement with a foreign nation had ever been in the hands of
the Senate. When envoys approached an _imperator_ in the field, his
duty was to send them on to the consuls and their council; how far he
himself entered into preliminary negotiations with them depended on his
own discretion, but in the best days of the Republic he could make no
definite agreement. The mode in which the Senate received the envoys
from a state differed according as the community had already treaty
relations with Rome, or was in a state of natural war. The permanent
representation of a friendly nation—except through the vague relationship
with a noble Roman house—was a device as yet unknown; but the concession
was made to the envoys of such a state of receiving them within the
town.[1360] The representatives of the enemy, on the other hand, had no
claim to reception within the walls.[1361] The embarrassment inspired
by the approach of the suspected Eumenes of Pergamus in 166 B.C. caused
a passing regulation to be framed that no kings (the “carnivorous
animals” of Cato) should be received at Rome in person.[1362] Towards
the close of the Republican period (67 B.C.) a demand for the better
ordering of business, as well as the suspicion created by the dealings
of envoys lingering in Rome with the political coteries, caused a law to
be passed that the month of February should be devoted to the reception
of legations.[1363] As most of the envoys at this time came from states
within the Roman sphere of influence, it was an advantage to the
provincials to have a definite season set apart in which they could air
their grievances.
The most pressing demand for entering into new relations with states
naturally accompanied the organisation of a province. For the immediate
attention to this demand the conquering general was competent, although
he was sometimes assisted by ten commissioners (_legati_) appointed by
the Senate.[1364] The whole work of organisation, known as the law of
the province (_lex provinciae_), bore the name of the _imperator_, and
the _lex Rupilia_ of Sicily, the _lex Pompeia_ of Bithynia, and the law
of Metellus in Crete preserved the memory of individual victors and
organisers. The _lex_ in this case is a charter (_lex data_), not a
comitial act (_lex rogata_), and when we remember that the organisation
of the provinces took place during the period of senatorial ascendency,
we are not surprised at the omission of the formality of the consultation
of the people.
The assignment of external spheres of rule (_provinciae_) to magistrates
was one of the most important powers connected with the senatorial
administration of the provinces. We have already seen how the original
theory that a magistrate chose his department gave way to senatorial
selection. In spite of the fact that the provinces were not assigned to
specified individuals, but to holders of certain offices, this right
of bestowal put great patronage in the hands of the Senate; it might
reward or punish consuls or proconsuls by the assignment of more or
less important districts,[1365] and the lot (_sortitio_) by which the
individual holders were determined was often tampered with.[1366]
The final organisation of Italy and the provinces also gave fresh spheres
of influence to the Senate. The free cities, which extended over the
whole of Italy, and were found as privileged units in the provinces,
were subject to its controlling power. These had given up all claim to
the exercise of external authority, and it was the Senate that adjusted
the conflicting claims of states both within and without the bounds of
Italy.[1367] When the rights of a free city were held, not by treaty, but
by a precarious charter, the Senate might cancel certain grants, which,
by the terms of the charter, were revocable at pleasure.[1368] In the
details of provincial government and the relations of the subject cities
to the governor the Senate seems seldom to have interfered directly. But
we must remember that in every province the governor was accompanied by a
senatorial committee in the form of a _consilium_ composed of his legates
and of any senator who happened to be in the province.[1369] It was
his duty to refer every important matter to this council, and the most
important questions it bade him reserve for the judgment of the Senate at
home.[1370]
The power of the purse, which has been the guarantee of so many popular
liberties, was not possessed by the people at Rome. By escaping so early
the incidence of direct taxation they lost a formidable weapon with
which they might have fought the Senate. For this reason the admitted
incapacity of the latter body to impose a new tax on the community was no
great limitation to its powers after the year 167 B.C., when the Italian
_tributum_ disappeared.[1371] The control of the details of finance,
which had never belonged to the people but always to the executive, was
the mainstay of its power in this department. The circumstance that the
control of estimates had been given to occasional officials, the censors,
and that the details of expenditure had been taken from the hands of the
consuls and placed in those of the most subordinate of all magistrates,
the quaestors, sufficiently explains the growth of a central directing
authority, which may be considered in its three relations to the property
of the state, the estimates, and the expenditure.
The chief property of the state in the later Republic was the income
derived from the provinces, and it is obvious that the Senate determined
its amount when it ratified the terms of the _lex provinciae_. But the
older source of revenue—the public domains of the state—was also subject
to its control. It granted the occupation or the use of public lands
and decreed their alienation by sale or gift.[1372] It also accepted
or rejected gifts and bequests to the state, and the proposal of Ti.
Gracchus that the people should deal with the movable property left
by Attalus III., king of Pergamus,[1373] struck at one of the most
undisputed of senatorial prerogatives.
The most important estimates of those items of revenue and expenditure
which varied from time to time were, as we have seen,[1374] made every
five years by the censors. But the Senate exercised the right of
directing, even of reversing, the arrangements made by these officials;
the appeal against an oppressive contract was made to them,[1375] and
during the vacancy in the censorship they designated the magistrates who
were to preside over new financial assignments.[1376]
The control over the treasury, both in the voting of large supplies or in
detailed expenditure for definite purposes, was complete. The provincial
budget, comprising the allowances for the different governors, was voted
by the Senate, and this _senatus consultum de provinciis ornandis_[1377]
was one of its most effective means of controlling the magistracy.
The special sums voted for military or any other purposes were either
directly paid[1378] or credited by the quaestors to the commanders abroad
or to the home officials.[1379] We have already seen that it was only the
consul who could order the quaestors to pay without a permit from the
Senate;[1380] but, as the consul after the time of Sulla rarely took the
field, the Senate’s control of expenditure was finally uninterrupted even
by this survival.
If we pass from the most material to the most spiritual element in human
life, we find this also directed to a certain extent by the Senate.
Although religion in its various departments was under the control of
special guilds, yet these colleges possessed little power of initiative,
and an executive authority was necessary to carry out their will. The
announcement of prodigies was met by the Senate with forms of expiation
suggested by the priestly colleges. In the Sibylline books above all
answers might be discovered whose political was even greater than their
religious import. When the dangerous annexation of Egypt could be staved
off by a few lines on these mysterious leaves,[1381] it is no wonder
that their own guardians, the _decemviri_, scarcely dared to unfold them
without the authorisation of the Senate. The activity of the _comitia_
was sometimes hampered by the Senate’s habit of decreeing extraordinary
festivals (_feriae_),[1382] while the successful general was dependent on
its will for the duration of the thanksgivings (_supplicationes_) which
followed his victory.[1383] The reception of a new god into the Roman
Pantheon was probably in strict law a popular right,[1384] but it is one
that seems to have been tacitly conceded to the Senate.[1385]