Roman Public Life

by A. H. J. Greenidge

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]