Roman Public Life/Chapter 6

by Abel Hendy Jones Greenidge

CHAPTER VI

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,^[1] 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,"^[2] 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 every-thing; 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,^[3] which continued to be worn by the patrician senators in their character of potential kings (interreges).^[4] 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.^[5]

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;^[6] 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,^[7] 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,^[8] 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.^[9] 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,^[10] 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.^[11] 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.^[12]

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.^[13] 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.^[14] 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.^[15] 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.^[16]

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;^[17] 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.^[18] 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,^[19] and it was not unusual to leave one's bench and take up a position near the man whose opinion one supported.^[20] 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);^[21] 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^[22] 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,^[23] 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.^[24] 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;^[25] 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.^[26]

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:^[27] 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.^[28]

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,^[29] and Caelius Rufus was ejected, on the allegation of similar misconduct, from the curule chair of the praetor in 48.^[30] 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;^[31] it might even infringe so much on the freedom of contract as to suggest a current rate of interest^[32]—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.^[33] 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.^[34]

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,^[35] 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.^[36]

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,^[37] 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.^[38] 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.^[39] 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.^[40] were executed by magisterial decree, the act was legal, for women had no right of appeal. Similar legality attended its exercise over provincials;^[41] and, if similar sentences were inflicted on Italian allies,^[42] 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,^[43] 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,"^[44] 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,^[45] 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."^[46] 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.^[47] 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.^[48] 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."^[49] But it is possible that it made senators individually responsible for the decree authorising such conduct on the part of the magistrates,^[50] 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.^[51] 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,^[52] 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;^[53] 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.^[54] 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.^[55]

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.^[56] But the opinion finally prevailed that without the consent of the Senate and the people no sworn treaty (foedus) could be binding.^[57] 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,^[58] but the close of Republican history shows cases where the Senate alone is mentioned as the deciding authority.^[59]

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.^[60] The representatives of the enemy, on the other hand, had no claim to reception within the walls.^[61] 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.^[62] 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.^[63] 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.^[64] 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,^[65] and the lot (sortitio) by which the individual holders were determined was often tampered with.^[66]

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.^[67] 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.^[68] 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.^[69] 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.^[70]

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.^[71] 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.^[72] 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,^[73] 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,^[74] 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,^[75] and during the vacancy in the censorship they designated the magistrates who were to preside over new financial assignments.^[76]

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^[77] 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^[78] or credited by the quaestors to the commanders abroad or to the home officials.^[79] We have already seen that it was only the consul who could order the quaestors to pay without a permit from the Senate;^[80] 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,^[81] 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),^[82] while the successful general was dependent on its will for the duration of the thanksgivings (supplicationes) which followed his victory.^[83] The reception of a new god into the Roman Pantheon was probably in strict law a popular right,^[84] but it is one that seems to have been tacitly conceded to the Senate.^[85]

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1. p. 219.
2. Cic. pro Sest. 65, 137 "senatum reipublicae custodem, praesidem, propugnatorem collocaverunt (majores); hujus ordinis auctoritate uti magistratus et quasi ministros gravissimi consilii esse voluerunt."
3. Festus p. 142 "mulleos genus calceorum aiunt esse, quibus reges Albanorum primi, deinde patricii sunt usi."
4. Hence the distinction between the patrician and plebeian form of shoe (Mommsen Staatsr. iii. p. 891). In the time of Cato the elder this footgear was only worn by the plebeian senator "qui magistratum curulem cepisset" (Festus l.c.).
5. For an investiture of boys with the latus clavus earlier than the rule of Augustus, see Suet. Aug. 94.
6. Tac. Ann. xi. 22 "post lege Sullae viginti (quaestores) creati supplendo senatui."
7. Gell. iv. 10, 8 "Erat . . . jus senatori ut sententiam rogatus diceret ante quicquid vellet aliae rei et quoad vellet." For this practice of egredi relationem see Tac. Ann. ii. 33.
8. "Delenda est Carthago" (Florus ii 15); cf. App. Lib. 69.
9. An attempt to violate this order was made in 56 B.C., "cum Lupus tribunus pl. . . . intendere coepit ante se oportere discessionem facere quam consules. Ejus orationi vehementer ab omnibus reclamatum est; erat enim et iniqua et nova" (Cic. ad Fam. i. 2, 2).
10. The consul Marcellus thus dismissed the Senate in 50 B.C. on its favouring the proposal that both Pompeius and Caesar should lay down their commands (App. B.C. ii. 30).
11. Gell. iv. 10, 8.
12. ib. l.c.; Suet. Caes. 20.
13. Gell. xiv. 7, 9 (from the Commentarius of Varro) "singulos autem debere consuli gradatim incipique a consulari gradu. Ex quo gradu semper quidem antea primum rogari solitum qui princeps in senatum lectus esset; tum autem, cum haec scriberet, novum morem institutum refert per ambitionem gratiamque ut is primus rogaretur quem rogare vellet qui haberet senatum, dum is tamen ex gradu consulari esset." For this novus mos cf. Cic. ad Att. i. 13, 2 (61 B.C.) "Primum igitur scito primum me non esse rogatum sententiam praepositumque esse nobis pacificatorem Allobrogum" (C. Calpurnius Piso, a relative of the presiding consul).
14. Sall. Cat. 50 (in the debate on the Catilinarian conspirators) "D. Junius Silanus primus sententiam rogatus quod eo tempore consul designatus erat."
15. Festus p. 210 "(Pedarius senator) ita appellator quia tacitus transeundo ad eum, cujus sententiam probat, quid sentiat indicat." Cf. Gell. iii. 18. The explanation cited by Festus is true only so far as it expresses a usual circumstance of debate. The name pedarius is probably derived from the absence of the curule chair (Gavius Bassus ap. Gell. l.c.).
16. Vell. ii. 35 "Hic tribunus plebis designatus . . . paene inter ultimos interrogatus sententiam"; Cic. ad Att. xii. 21, 1 "Cur ergo in sententiam Catonis? Quia verbis luculentioribus et pluribus rem eandem (i.e. the opinion already expressed by consulares) comprehenderat."
17. See p. 270 n. 2.
18. In a rough estimate of the house (61 B.C.) Cicero mentions 15 on one side of a question, "quite 400" on the other (ad Att. i. 14, 5). On Curio's proposal in 50 B.C. that both Pompeius and Caesar should lay down their commands, 22 dissented, 370 approved (App. B.C. ii. 30). In the latter case there seems to have been no formal division (see p. 268 n. 2); and in both the small numbers may be the result of exact computation, the large either of a guess or of a deduction drawn from an already counted quorum.
19. "Verbo adsentiri " (Sall. Cat. 52); cf. Cic. ad Fam. v. 2, 9 "sedens iis adsensi."
20. "In alienam sententiam pedibus ire" (Gell. iii. 18, 1).
21. The invitation to divide on the sententia was couched in the form " Qui hoc censetis, illuc transite: qui alia omnia, in hanc partem" (Festus p. 261). Hence the colloquial phrase "ire in alia omnia" for negativing a proposal at the Senate (Cic. ad Fam. i. 2, 1).
22. Cic. ad Att. i. 14, 3 "totum hunc locum, quem ego . . . soleo pingere, de flamma, de ferro—nosti illas [Greek: lêkythous]."
23. p. 179.
24. Cic. ad Fam. viii. 8, 5 ff. In § 6 we find the formula "Si quis huic s. c. intercesserit, senatui placere auctoritatem perscribi."
25. ib. l.c. § 6 "Pr. Kal. Octobres in aede Apollinis scrib. adfuerunt L. Domitius Cn. f. Fab. Ahenobarbus," etc.
26. p. 148.
27. Plut. Ti. Gracch. 10; App. B.C. i. 12.
28. Polyb. xxx. 4. For the motive of the veto see Liv. xlv. 21 "M. Juventius Thalna . . . praetor novo maloque exemplo rem ingressus erat, quod, ante non consulto senatu, non consulibus certioribus factis, de sua unius sententia rogationem ferret vellent juberentne Rhodiis bellum indici, cum antea semper prius senatus de bello consultus esset, deinde ex auctoritate patrum ad populum latum."
29. Suet. Caes. 16 (Caesar supported Metellus in carrying) "turbulentissimas leges adversus collegarum intercessionem . . . donec ambo administratione reipublicae decreto patrum submoverentur."
30. In this case the prohibition was effected through the coercive power of the consul springing from his majus imperium (Dio Cass. xlii. 23).
31. Tac. Ann. ii. 30 "vetere senatus consulto quaestio in caput domini prohibebatur."
32. Cic. ad Att. v. 21, 13 (50 B.C.) "cum senatus consultum modo factum sit . . . in creditorum causa, ut centesimae perpetuo faenore ducerentur."
33. Ascon. in Cornel. p. 58.
34. M. Brutus had gained from the Senate the validation of a bond (syngrapha), by which an exorbitant rate of interest was demanded from the government of Salamis in Cyprus. Bonds of this kind, through which obligations were incurred by provincials at Rome, had been rendered illegal by a lex Gabinia of 67 B.C. (Cic. ad Att. v. 21, 12).
35. Cic. pro Domo 16, 41 "judicavit senatus M. Drusi legibus, quae contra legem Caeciliam et Didiam latae essent, populum non teneri." The account that the Livian laws were shelved as contra auspicia (Ascon. in Cornel. p. 68 "Philippus cos. . . . obtinuit a senatu, ut leges ejus omnes uno s. c. tollerentur. Decretum est enim contra auspicia esse latas neque eis teneri populum") may contain one of the grounds of their abrogation.
36. Cic. ad Att. iii. 15, 5 "Quod te cum Culleone scribis de privilegio locutum, est aliquid, sed multo est melius abrogari."
37. p. 204.
38. Liv. xxv. 4; Sall. Cat. 50; Ascon. in Milon. p. 44. The Senate in this way sometimes interprets a criminal law and extends its incidence. See Cic. de Har. Resp. 8, 15 "decrevit senatus eos qui id fecissent (i.e. who had disturbed the rebuilding of Cicero's house) lege de vi, quae est in eos qui universam rem publicam oppugnassent (i.e. vi publica) teneri."
39. Cic. ad Att. i. 13, 3 "Credo enim te audisse, cum apud Caesarem pro populo fieret, venisse eo muliebri vestitu virum . . . mentionem a Q. Cornificio in senatu factam . . . postea rem ex senatus consulto ad pontifices relatam, idque ab iis nefas esse decretum; deinde ex senatus consulto consules rogationem promulgasse."
40. Liv. viii. 18.
41. ib. xl. 43 (180 B.C.) "A. C. Maenio praetore (cui, provincia Sardinia cum evenisset, additum erat ut quaereret de veneficiis longius ab urbe decem millibus passuum) literae adlatae se jam tria millia hominum damnasse."
42. Liv. xxxix. 41 (184 B.C.); cf. ix. 26 (314 B.C.) and the instance cited in the next note. In such instances of quaestiones extended to Italy, it is not clear whether socii as well as cives were executed summarily by Roman magistrates.
43. ib. xxxix. 18. On this point see Zumpt Criminalrecht der Römer i. 2 p. 212.
44. C.I.L. i. n. 196 (a letter from the consuls to some unknown magistrates of the ager Teuranus in Brutii) l. 24 "eorum (i.e. the Senate) sententia ita fuit 'sei ques esent, quei avorsum ead fecisent, quam suprad scriptum est, eeis rem caputalem faciendam censuere.'"
45. The consul was armed against C. Gracchus, the consuls in 63; the consuls, praetors, and tribunes in 100 B.C.; the interrex, proconsul, and all other magistrates with imperium in 77 B.C.
46. The decree proposed to meet the threatened revolution of M. Lepidus in 77 B.C. ran as follows: "quoniam M. Lepidus exercitum privato consilio paratum cum pessimis et hostibus rei publicae contra hujus ordinis auctoritatem ad urbem ducit, uti Appius Claudius interrex cum Q. Catulo pro consule et ceteris, quibus imperium est, urbi praesidio sint operamque dent ne quid res publica detrimenti capiat" (from speech of Philippus in Sall. Hist. lib. i. frgt. 77, § 22). The historical instances of the employment of this power are against C. Gracchus and his adherents in 121 B.C., in the tumult of Saturninus (100), the first Sullan restoration (88), by the anti-Sullans (82), at the threatened revolution of M. Lepidus (77), in the Catilinarian conspiracy (63), during the disturbances raised by Q. Metellus (62), and those preceding the sole consulship of Pompeius (52), against Caesar (49), against Dolabella and M. Antonius (43).
47. Cf. Sall. Cat. 50 "consul . . . convocato senatu refert quid de eis fieri placeat, qui in custodiam traditi erant. Sed eos paulo ante frequens senatus judivcaerat contra rem publicam fecisse."
48. Although the ultimum senatus consultum had not been passed against Ti. Gracchus, the condemnation of his adherents without appeal (Vell. ii. 7; Val. Max. iv. 7, 1) was the exercise of the jurisdiction of martial law. It was this jurisdiction which elicited the plebiscitum of C. Gracchus.
49. Cic. pro Rab. 4, 12 "C. Gracchus legem tulit ne de capite civium Romanorum injussu vestro judicaretur."
50. Schol. Ambros. p. 370 "Quia sententiam (wrongly for "legem"; see Zumpt Criminalrecht i. 2 p. 73) tulerat Gracchus ne quis in civem Romanum capitalem sententiam diceret." Cf. Cic. pro Sest. 28, 61 "Consule me, (Cato), cum esset designatus tribunus plebis, obtulit in discrimen vitam suam: dixit eam sententiam, cujus invidiam capitis periculo sibi praestandam videbat." So Dio Cassius (xxxviii 14), in speaking of the first bill of Clodius against Cicero, says [Greek: ephere men gar kai epi pasan tên boulên, hoti tois te hypatois tên phylakên tês poleôs . . . prosetetachei.]
51. Plut. C. Gracch. 4 [Greek: ton de (nomon eisephere), ei tis archôn akriton ekkekêrychoi politên, kat' autou didonta krisin tô dêmô]. [Greek: dêmos] here may mean either populus or plebs; but Gracchus, as tribune, put his own law into force against Popilius (Cic. pro Domo 31, 82).]
52. Cic. in Cat. iv. 5, 10 "At vero C. Caesar intelligit legem Semproniam esse de civibus Romanis constitutam; qui autem rei publicae sit hostis eum civem esse nullo modo posse."
53. Cic. in Pis. 4, 9; pro Sest. 25, 55; Dio Cass. xxxviii. 13.
54. Cic. ad Q. fr. ii. 3, 5 (56 B.C.) "senatus consultum factum est ut sodalitates decuriatique discederent lexque de iis ferretur ut, qui non discessissent, ea poena quae est de vi tenerentur." The sodalitates were clubs of the type of the Greek [Greek: hetaireiai], the decuriati probably electioneering associations.
55. Cic. ad Att. i. 16, 12 (61 B.C.) "senatus consulta duo jam facta sunt odiosa . . . unum, ut apud magistratus inquiri liceret, alterum, cujus domi divisores habitarent, adversus rem publicam."
56. Liv. ix. 8-12; Plut. Ti. Gracch. 7; Cic. de Off. iii. 30, 109; Sall. Jug. 39.
57. Sall. Jug. 39 "senatus ita, uti par fuerat, decernit suo atque populi injussu nullum potuisse foedus fieri."
58. Polyb. vi. 14 [Greek: hyper eirênês houtos (ho dêmos) bouleuetai kai polemou. kai mên peri symmachias kai dialyseôs kai synthêkôn houtos estin ho bebaiôn hekasta toutôn kai kyria poiôn ê tounantion.]
59. The Gaditani approach the Senate for the renovation of a treaty made with a pro-magistrate in 78 B.C. Cicero questions its validity (pro Balbo 15, 34) on the ground that the people was not consulted. The passage illustrates both the Senate's exercise of this power and the continuance of a controversy as to its right.
60. Hence the institution of the Graecostasis. Varro (L.L. v. 165) describes it as "sub dextra hujus (the Rostra) a comitio locus substructus ubi nationum subsisterent legati, qui ad senatum essent missi; is Graecostasis appellatus a parte ut multa."
61. So the Numantian envoys in 36 B.C. are received [Greek: exô tou teichous] (Dio fr. 79). As a rule the appeal was made to the nearest imperator, and his representations might accord such legati a reception within the city. See Momms. Staatsr. iii. 2 p. 1150.
62. Liv. Ep. xlvi. "in commune lex lata est ne cui regi Romam venire liceret." Cf. Polyb. xxx. 17.
63. Cic. ad Q. fr. ii. 13, 3 "Appius interpretatur . . . quod Gabinia sanctum sit, etiam cogi ex Kal. Febr. usque ad Kal. Mart. legatis senatum quotidie dare."
64. Polyb. xxii. 24; Liv. xlv. 17.
65. For the attempt made by the lex Sempronia to obviate this power see p. 201.
66. Cic. ad Fam. v. 2, 3 (to Metellus Celer, proconsul of Cisalpine Gaul, 62 B.C.) "Nihil dico de sortitione vestra: tantum te suspicari volo nihil in ea re per collegam meum me insciente esse factum." Cf. ad Att. i. 16, 8.
67. Liv. xlv. 13; Dittenberger n. 240. The Senate sometimes referred questions respecting the internal affairs of these states to Roman patroni, with whom they had entered into relations of clientship (Liv. ix. 20; Cic. pro Sulla 21, 60).
68. lex de Termessibus ii. 6 "Nei quis magistratus . . . meilites . . . introducito . . . nisei senatus nominatim . . . decreverit."
69. Sall. Jug. 62 "Metellus propere cunctos senatorii ordinis ex hibernis accersi jubet: eorum et aliorum, quos idoneos ducebat, consilium habet." Cf. c. 104 "Marius . . . Sullam (the quaestor) ab Utica venire jubet, item L. Bellienum praetorem, praeterea omnes undique senatorii ordinis, quibuscum mandata Bocchi cognoscit."
70. Cic. ad Att. ii. 16, 4 "Illud tamen, quod scribit (Q. Cicero, governor of Asia) animadvertas velim, de portorio circumvectionis; ait se de consilii sententia rem ad senatum rejecisse."
71. Cic. de Off. ii. 22, 76 "tantum in aerarium pecuniae invexit (Paulus) ut unius imperatoris praeda finem attulerit tributorum." Cf. Plut. Paul. 38.
72. Momms. Staatsr. iii. 2 pp. 1112-20.
73. Plut. Ti. Gracch. 14 [Greek: ouden ephê tê synklêtô bouleuesthai prosêkein, alla tô dêmô gnômên autos prothêsein].
74. p. 229.
75. The Senate invalidated the locationes of the censors of 184 B.C. (Liv. xxxix. 44 "locationes cum senatus precibus et lacrimis publicanorum victus induci et de integro locari jussisset"). A vain appeal was made by the publicani of Asia to remit their contracts in 60 B.C. (Cic. ad Att. i. 17, 9; cf. ii. 1, 8).
76. The business of draining the Pomptine marshes is entrusted to a consul (Liv. Ep. xlvi.), the building of an aqueduct to a praetor (Frontin. de Aquaed. 7).
77. Cic. ad Att. iii. 24.
78. This was necessary when the supplies were destined for the army. See Sall. Jug. 104 "(Rufus) qui quaestor stipendium in Africam portaverat." Compare the section on provincial government.
79. The phrase for opening this credit is attribuere. See Liv. xliv. 16 "ad opera publica facienda cum eis (censoribus) dimidium ex vectigalibus ejus anni (169 B.C.) attributum ex senatus consulto a quaestoribus esset."
80. p. 194.
81. Cic. ad Fam. i. 1 sq.
82. Cic. ad Q. fr. ii. 6, 4 and 5 (56 B.C.) "consul est egregius Lentulus . . . Dies comitiales exemit omnes. Nam etiam Latinae instaurantur: nec tamen deerant supplicationes. Sic legibus perniciosissimis obsistitur."
83. In the later Republic these periods of thanksgiving had reached the inordinate length of fifteen, twenty, and even fifty days (Caes. Bell. Gall. ii. 35; iv. 38; Cic. Phil. xiv. 11, 29). At this period the supplicatio was considered the usual preliminary of a triumph; but Cato explains to Cicero that this was not always the case (ad Fam. xv. 5, 2 "Quodsi triumphi praerogativam putas supplicationem et idcirco casum potius quam te laudari mavis, neque supplicationem sequitur semper triumphus," etc.).
84. Cic. pro Domo 49, 127 "video . . . esse legem veterem tribuniciam quae vetat injussu plebis aedes, terram, aram consecrari." The jussus plebis probably implies that of the populus as well. See Momms. Staatsr. iii. 2 p. 1050.
85. The Senate alone is mentioned as decreeing the reception of the Magna Mater in 205 B.C., and as ordaining the erection of her temple (Liv. xxix. 10 and 11; xxxvi. 36).