SENATUS CONSULTA

1. Republic

j 156 Geluus, Nodes Atticae XIV.7.4, 7-9, 12-13

First he (Varro) mentions who those persons (magistrates} were by whom the Senate was wont to be called according to the custom of our ancestors, and he names them: the dictator, the consuls, the praetors, the tribunes oftheplebs, the interrex, the praefectus urbi.

18. Crifb.op. ai.,97ff.

19. Crifft, op. dt., 102 n.327.

no senatus consul turn could be made without discessio, because in every senatus consultant, even in those which were made by asking for individual opinions, a discessio was necessary, and Capito himself considers this to be true.

Gelljus, Noctes Atticae IV. 10.8

In the same book Capito has written: ’Gaius Caesar called upon Marcus Cato for his opinion. Cato did not wish to have the motion carried (by the Senate) since he did not consider it for the public good. In order to protract the matter, he delivered a long oration and was taking up the whole day in speaking. For it was the right of a senator that, when called upon for his opinion, he could speak, first of all, on any subject he wished and as long as he liked. Caesar, as consul, called an attendant and, since he would not stop, ordered him while still speaking to be led off to prison. The Senate rose in a body and attended Cato to the prison. This', Capito says, ’caused such indignation that Caesar yielded and ordered Cato to be freed.'

Cicero, Epistulae ad familiares VIII.8.4, 6 (51 B.C.)

... A resolution of the Senate (senatus consult um) was passed which I send on to you, and authorizations (auaoritates) were entered on the minutes....(6) The 30th of September, in the temple of Apollo. Present at the drafting were L. Domitius Ahenobarbus (and six others).... Whereas M. Marcellus, consul, raised the question of the provinces, the Senate resolved on this question as follows: ’That the Senate think it proper that no one of those who has the right of veto or impeding passage should cause delay so as to prevent referring a matter concerning the republic of the Roman people to the Senate at the earliest opportu­nity in order that a senatus consultant could be passed. The Senate thinks that one who shall have impeded or have prohibited action has acted against the republic.

C. Caelius (and three other tribunes ofthe plebs) vetoed the senatus consult um. A letter from Caelius to Cicero, in Cilicia, [and the people] interpolated, sec Mommsen, Forschungen I 77 n.2.

Technically, senatus consults (regularly abbreviated SC) were instruc­tions from the Senate to magistrates, advising them on various matters con­nected with their official duties. An essential condition to such action by the Senate was a request by the magistrate (rclatio).^[1064] In the republic the Senate had no regular meeting days, although in the last century it became customary to meet on the Kalends and the Ides of every month. Procedural rules were rigidly fixed. The rostrum was occupied by all the competent magistrates simultaneously, and senators could speak only when called upon. But with the large number of magistrates empowered to call upon them, it was impossible to prevent any senator from taking part in the discussion. Various rules controlled the order in which the senators were called and the order in which various magistrates took active control of the meeting. The discussion was in theory limited to the question proposed by the magistrate who had convoked the body, but actually there was nothing to prevent senators from speaking on any subject that interested them, as for example, Cato’s (‘Censorius’) famous saying, ‘Carthage must be destroyed.’ In fact, actual filibusters were not uncommon.¹

When the discussion was ended the question was voted upon and the deci­sion became a decree of the Senate. The voting was somewhat peculiar. During the course of the discussion senators would move and take a position near the senator whose opinion they supported. When, at the conclusion of the debate, if the sense of the house was not obvious, the consul urged a division (discessio) of the senatorial body, and actual counting was very rarely resorted to? Inasmuch as division was needed for all senatus consulta, the supposed type per relationem is without basis; the relatio was the motion of the magistrate, comprehended the interrogation of the individual senators and concluded with the division?

In the event that a senatus consultum failed to satisfy all legal require­ments, or if a veto (intercessio) prevented the operation of a senatuscon­sultum, it was known as auctoritas senatus? The proposed decree of the Senate which had been vetoed was nevertheless drafted and recorded in the minutes, in the hope that by amendment it might satisfy the magistrate who vetoed the original proposal? The order of the Senate is occasionally designated senatus decretum (decree of the Senate), but even in antiquity there was dispute whether the decree of the Senate was identical to the resolution of the Senate? Modern scholars identify the two, considering the use of senatus decretum in the republic either as archaic or without precise meaning? Finally, the phrase senatus sententia (opinion of the Senate) is technically correct to express the individual motion or the advisory char-

2.

3. Greenidge. op. at., 271 f.

4. O’Brien Moore, j.v. Senatus, RE Supp 6 (1935) 711 f.

5. Lcist, s.v. Auctoritas, RE 2(1896) 2274 f.; Sibcr, Veifassungsrechi 243.

6. Mommsen, Staatsredit I 281 fT.

7. Cf. Festus, s. v. senatus decretum.

8. Reff. by Hesky, s.v. Decretum, RE 4 (1901) 2294 f.; Siber, Verfassungsredit 243.

acter of the vote, but it is seldom used during the republic and is entirely gone in the Empire.’

Senatus consultum de bacchanalibus 1-3, 26-28 (Bruns 164; FIRA I No. 30) (186 B.C.)

The consuls < Quintus > Marcius son of Lucius and Spurius Postumius son of Lucius consulted the Senate on the 7th of October at the temple of Bellona. Assisting at the drafting (of the SC): Marcus Claudius son of Marcus, Lucius Valerius son of Publius, and Quintus Minudus son of Gaius.

In the matter of the orgies of Bacchus it was resolved that it be proclaimed to those who were allied (with the Romans) as follows:

‘Let no one of them who wishes to keep a shrine (hold an orgy) of Bacchus.' (26) And the Senate resolved that it be proper that you engrave this on a bronze tablet and that you order It to be fastened where it can be most easily read....

Senatus consultum de asclemade 1-5, 9 (Bruns 176; FIRA I No. 35 (78 B.C.)

In the consulship of Quintus Lutatius Catulus son of Quintus and Marcus A emilius Lepidus son of Quintus and grandson of Marcus, the urban praetor and (the praetor) for foreigners being Lucius Cornelius Sisenna son of... month of May. The consul Quintus Lutatius Catulus son ofQuintusconsultedthe Senate the 21st of May in the assembly. Lucius Faberius Sergia son of Lucius. Gaius... Poplilia son of Lucius, Quintus Petillius Sergia son ofTitus, assisted at the drafting (of the SC)

Whereas the consul Quintus Lutatius Catulus son of Quintus stated (verba fecit) that the naval commanders Asdepiades son of Philus, of Clazomenae(and two other commanders) have been fighting with their ships on our side from the beginning of the Italian war, having given courageous and loyal aid to our republic,...

‘Asdepiades... (and the two others)... shall be addressed as admirable men and friends (of Rome): ■ - ■ Whatever they, their children, their descendants or their wives may sue for from another person, or whatsoever others may sue for from them, their children, their descendants or their wives shall have the right and power whether they wish to contend in court at home under their own laws or before our magistrates with Italian juries, or in a free dty~state of people who always have remained in friendship with the Roman people; whichever they wish, there the trial concerning these matters shall be held.’...

So resolved.

9. O’Brien Moore, op. at., supra, n.4, 801; Volterra, op. eft.. 1052.

Immediately after the session, the senatus consultum was written down under the supervision of a small committee consisting of the magistrate who put the motion and a few senators to see that the senatus consultum actually expressed the decision of the Senate. The form employed was quite stylized if we are to judge from the extant senatus consults of republican times.¹⁰ A senatus consultum was regularly framed as follows: (1) the introductory clauses, including (a) the name and office of the magistrate consulting the Senate, (b) the day and month, (c) the place of the meeting, (d) the witnesses to the drafting of the document; (2) the text of the senatus consultum, con­taining (a) the motion, (b) the introduction to the resolution of the Senate, (c) the text of the resolution itself; and finally, (3) the official notice of the decision, comprising (a) the announcement of the decision, (b) the basis for the decision, (c) the taking of the decision, and (d) the noting of the vote.” Though naturally drafted in Latin, official translations into Greek were made at an early time, for senatus consulta directed to Greek-speaking lands.¹²

As early as 449 B.C. mention is made of the deposit of senatus consulta in the treasury of the plebs, at the temple of Ceres, under the supervision of the plebeian ediles.

10. Mommsen, Staatsrecht 111.2 1004-09; Willem, Sinar II 204-16; O'Brien Moore, op. at., 802 f.

11. According to Volterra, on the basis of Mommsen and O'Brien Moore.

12. Volterra, op. at., 1055. The Greek senatus consulta are collected by Viereck. Sermo graeaa, and Sherk, Roman Documents from the Greek East (1969) 2-184.

13. See Volterra, op. at., 1055 f.

14. Von Schwind, Publikatton 56 ff_; Volterra, op. at., 1056, with further reff.

15. Cic. ad Att. 13.33.3.

16. Generally on registration and publication, O’Brien Moore,op. at., 804-08; von Schwind, Publikation 53-63, with further reff.

It may be noted, also, that the proceedings of the meeting of the Senate might be taken down by order of the magistrate, but not until the time of Caesar was this practice made regular.¹¹ Augustus, however, decreed that the acta senatus, the activities of the Senate, should not be published.'· As a consequence, the acta of the Senate were inadequately kept in the time of the republic, and not available in the time of the Principate. Hence, the minutes of the meetings, the motions, the opinions of the speakers, the voting, and the resolutions of the Senate, these valuable sources of information were not utilized to any considerable extent by the writers of antiquity.”

2. Principate

§ 157 Suetonius, De vita Caesarum II.35.3-4 (Augustus’

... Then, in order that the men chosenandapprovedshouldperformthesenatoriai duties more solemnly and with less trouble, he (Augustus} ordered that every senator, before he took his seat, should supplicate with incense and wine before the altar of the god in whose temple the Senate convened, and that the Senate should lawfully act not more than twice monthly, on the Kalends and the Ides; and in the months of September and October it was unnecessary for any others to be present than those chosen by lot. by the number of whom decrees could be passed. For himself he instituted twice-yearly councils with whom he would deal beforehand of matters to be referred to the full Senate. He requested opinions (from the senators) concerning a subject of importance, not according to custom and rank but as he chose so that each one should apply his mind as ifadvice rather than assent was to be given.

To the same effect, Dio 55.3.

Edicta augusti de cyrenaeis 72-97 (FIRA I No. 68) (4 B.C.) Imperator Caesar Augustus, pontifex maximus, holder of the tribunician power fortheXIXth time, edicts: The senatus consul turn, enacted during the consulship of C. Calvisiusand L. Passienus in my presence and with my approval, concerning the security of the allies of the Roman people. I have decreed that this shall be sent to the provinces and appended to the authority of my edict so that it shall be made known to all those under our care. Thereby it will be made clear to all the inhabitants of the provinces what provisions I and the Senate have made that none of our subjects suffer anything beyond measure or be imposed upon.

17. Suet. De vita Caes. 1.20 (Caesar).

18. Suet. De vita Caes. 2.30 (Augustus).

19. On acta senatus, see Mommsen, Staaisneht IH.2 1015-21; Kubitsdiek. st Acta, RE 1 (1894) 287-90; O’Brien Moore, op. at., 770.

liesolution of the Senate: In the matter upon which C. Calvisius Sabinusand L. Passienus Rufus moved, and concerning which the emperor Caesar Augustus, our princeps, on the basis of a decision ofthe council that he chose from the midst of the Senate, expressed the wish that notice thereof be brought before the Senate - for it concerns the security ofthe allies ofthe Roman people - the Senate decrees as follows: Although our ancestors have legally providedfor the recovery of money (extorted} in order that the allies may more easily proceedjuridically on account of a wrong sustained and can recover the money extorted, insofar, how­ever, as the nature of these procedures is particularly difficult and burdensome for those same (people} for whom the law was enacted, due io the fact that poor men and others infirm by reason of illness or old age must be produced as witnesses from outlying provinces, the Senate resolves as follows:... (provides for a simplified procedure before the Senate in non-capital extortion cases)...

Full discussion of this edict and senatus consul turn: von Premerstein, SZ 48 (1928) 478-531; Stroux-Wenger, Augustus-lnschrift 112-36.

Senatus consulatum de imperio vespasiani 3-9 (Bruns 202; FIRA I No. 15) (69 A.D.)

A nd that he ( Vespasian) be permitted to convoke the Senate, to submit a motion, to transmit questions (to it), to procure senatus consulta by motion and division just as it was permitted to divus Augustus, Tiberius lulius Caesar Augustus, Tiberius Claudius Caesar Augustus Germanicus. And that when, by his wish or authority, by his command or mandate, or with him present, the Senate shall be held, all proceedings shall be considered lawful, just as if the Senate had been summoned by statute and was held.

From the very beginning of the Principatc the Senate began to take over more and more of the rights which formerly had rested with the assemblies; it is true, however, that what the Senate gained from the comitia it eventually lost to the emperor. As Suetonius and Dio indicate, Augustus completely re* organized the senatorial body, set fixed meeting days, provided for com­pulsory attendance, and shared in the presidency. Senators were obliged to have their domicile in Rome, and could not travel outside Italy and Gallia Narbonensis without authorization, given by the emperor from the time of Claudius on.¹ The standard treatises set forth the nature and composition of the Senate, together with its functions, during the Prin cipate? Herewith solely the form of the senatus consulta of the Wincipate, in comparison with those of the republic. ^{[1065] [1066]}

Ulpianus, Libro XV ad edicturn (D. 5.3.20.6)

Besides the above, many questions have been discussed relative to the petition of inheritance, to the sale of assets of the inheritance, to past fraud and to mesne profits. Since a rule was laid down on these matters by a senatus consultum, it is best to quote the senatus consultum itself, appending an interpretation: ‘On the fourteenth of March, Quintus lulius Balbus and Publius luventius Celsus Titius Aufidius Oenus Severianos, consuls (129 A.D.), moved the matters which the emperor Caesar Hadrianus, Augustus, son of divus Traianus Parthicus and grandson ofdivus Nerva. [emperor] < most excellent > and great­est princeps, on the third of March just passed, proposed and set forth in a bill (libellus) as to what he desired should be done, whereupon they (the Senate) resolved as follows:... (on the measures to be undertaken by the Treasury to­wards the recovery of the inheritance of a certain Rusticus, which had been con­fiscated by the stale)... '

Correction in the name and title of the emperor, Mommsen, Digestaad h. 1., and Fliniaux, RH2 (1923) 82 f.

Paulus, Libro XX ad edictum (D. 5.3.22)

... For in theoratio ofdivusHadrianusf 129A.D.) we read as follows: 'Youmust consider, senators (patres conscriptae), whether it is not fairer that the possessor should not make a profit, but should return the price which he received for another’s goods; because it can be considered that the price for the thing sold, which formed part of the inheritance, takes the place of the thing itself and in a way has become part of the inheritance.'

Senatus consultum de nundinis saltus BEOUENSis 1-29 (Bruns 205; FIRA I No. 47) (138 A.D.)

Senatus consultum on (holding) markets on the Beguensian estate in the territory of Casae, copied and certified from the records of opinions rendered in the Senate in the consulate of Karus lunius Niger and Gaius Pomponius Cdmerinus, in which was written the rights of (Ludlius) Africanus and what follows:

On October 15th in the assembly in the Curia Iulia. Quintus Gargilius Antiquus son of Quintus (and six others, including the quaestor) were present. 250 members were present.

Senatus consultum voted by division (discessio): Whereas Publius Cassius Secundus and... M. Nonius Mudanus, the consuls, moved at the request of the most honorable friends of Ludlius Africanus, who petitioned... (that he be permitted to establish markets at Casae at certain times)... and inquired what action was to be taken, the Senate resolved as follows: 'It shall be permitted to the most noble Ludlius Africanus to institute and to hold markets in the province of Africa, in the region ofBeguensis, territory of the Musulami, at Casae, on the second and the twentieth of November and thereafter every month...(on the same days, and neighboring peoples and visitors con freely assemble to hold markets)..

Done (document executed) on October 15 th. Publius Cassius Secundus andM. Nonius Mudanus, consuls. Two copies have been subscribed from the same original on the said matter. Subscribers: Titus Flavius Cominus, scribe (andsix others, including another scribe.)

Note: censuere (resolved), the indication of senatorial approval is missing, presumably because the senatus consultum was copied from a collection in the senatorial archives.

Ulfjanus, Libro XXXV ad edictum (D. 27.9.1 pr.-2)

Tutors [and curators ] have been prohibited by an oratio of the emperor Severus from disposing of rural or suburban lands (of their wards). (1) This oratio was delivered in the Senate. Tertullus and Clemens being consuls (195 A.D.), on June 13 th. and the words of it are as follows: (2) ‘Moreover, senators, I forbid tutors [and curators] to dispose of ruraland suburban estates, unless the parents have provided by will or codicil that this may be done...

Interpolation, by Alibrandi, Albertario, Partsch, accepted by most scholars, see Index Interp. II171.

Although the form of the senatus consultum was much the same in the Principate as in the republic, there were some changes: (1) the clause stating that the Senate had been consulted is omitted; (2) a varying number of sena­tors assisted in the drafting of the senatus consultum in the republic, while in the Empire it was regularly five, assisted by the quaestor;’ (3) the intro­duction to the decree is expanded; (4) the reasons for the senatus consultum arc often summarized; (5) the number of senators present is indicated; and (6) in the late Principate, the name of the author of the motion is given.* From the time of Augustus the emperor either delivered a speech before the Senate in person or had it read by one of his agents. In the course of time this speech (oratio) became the essential, the senatus consultum merely the formal act.’ After Hadrian most senatus consulta resulted from motions introduced by the emperor, and towards the end of the Principate the oratio lost its petitionary form and took on that of an imperial order, resembling the edict of the emperor. The development may be seen in the contrast between the oratio of Hadrian and that of Severus; the jurists depict this evolution, for the former was cited by them as the senatus consultum luventianum

3. Volterra, op. ctt., 1054.

4. O’Brien Moore, j.k. Senatusconsultum. RE Supp. 6 (1935) 803.

5. Kipp, GftKteAre 62; Volterra, op. dt.. 1056; further reff, in Bonini, Libri 150 n.77.

(D. 5.3.20.6, supra), while the latter was known as the oratio Severi (D. 27.9.1 pr.-2, immediately above).· There was no official designation for senatus consulta; some were named after the consul of the year, e.g., SC luven- tianum; some after the emperor who proposed them, e.g., SC Claudianum; others by the name of the individual whose case gave rise to the senatus consultum, e.g., SC Macedonianum. The filing of senatus consultacontinued in the Principate, and the administration of the archives was considerably improved. It still, however, was the exceptional senatus consultum that was published, though, in addition to publication by private initiative, many have been made known to us in the commentaries of the jurists. It would seem that the texts of senatus consulta quoted by jurists were obtained from the archives.⁷

c. SENaTUS consulta as source of law

§ 158 Ulpianus, Libro L ad edictum (D. 29.5.3,18)

The edict provides that no one knowingly in bad faith may arrange for the open­ing, reading and copying of anything of testamentary nature which has been left by one who is alleged to have been killed, before the investigation of the slaves, provided by the senatus consultum (Silianum, 10 A.DJ has been held and the death penalty imposed upon those guilty.

Ulpianus, Libro XVIII ad Sabinum (D. 7.5.1, 11)

The Senate resolved that a usufruct ofall property which was understood to be in the patrimony of anyone could be bequeathed; by which senatus consultum it is held that basis is given for a usufruct to be bequeathed of such things which are destroyed or lessened by use. (I I) Ifa usufruct in wool or perfumes is bequeathed to anyone, no usufruct is held to have been legally created, but resort is had to the senatus consultum which prescribes the guaranty for these.

Most scholars date this senatus consultum in the time of Tiberius; cf. also Crifd, Studi Scherillo I 427—40.

Iulianus, Libro IVad Urseium Ferocem (D. 16.1.16.1)

If I shall have taken a guarantor from such a woman who shall have interceded contra to thesenatus consultum (Velleianum, 46 A.D. ). Gaius Cassius responded that the sure l or was only to be granted the affirmative defense (under the senatus

6. Further on imperial orations in senaiu habere (speeches delivered in the Senate), sec Kriiger, Geschichte 91-92, Chiazzese, Imroduziotte 153 f., Radin, s v Oratio, RE 18.1(1939) 869=73.

7, Schulz, History 147 f.; O’Brien Moore, RESupp. 6 (1935) 810-12, lists the senatus consulta cited by jurists.

consultant) if he shall have been askedfor by the woman, lulianus, however, holds that the affirmative defense is rightly given the guarantor even if he does not have an action on mandate against the woman, for the Senate condemns the entire obligation and the primary debtor is restored as obligee to the creditor by the praetor.

Pomponius, Libra VII ex variis lectionibus (D. 14.6.19)

lulianus writes that the affirmative defense under the senatus consultant Mace* donianum (time of Vespasian I stands in no one's way except one who knew or should have known that the person to whom he lent (money} was a filiusfamilias.

Ulpianus, Libro XV ad edictum (D. 5.3.20.6)

See supra, § 157, for the senatus consultant luventianum, 129 A.D.

Gaius, Institutionum commentarius 1.4

A senatus consultant is that which the Senate orders and establishes, and this has the force of a lex, although this was formerly disputed.

Cf. Solazzi, SDHI 20 (1954) 316-18; Serrao, Studi Romani 3 (1955) 12.

Gaius, Institutionum commentarius III.32

Those whom the praetor calls to an inheritance, indeed, do not become heirs by ius (civile} itself; for the praetor cannot make heirs. < Only a lex or some similar legal ordinance can make heirs >, such as a senatus consultant or an imperial constitution. But when the praetor < gives bonorum possessio> to them, they are put in the position of heirs.

Lacunae supplied from Inst. 3.9.2,

Gaius, Libro VI ad edictum provinciate (D. 5.3.3)

.,. Allpersons become heirs by novum ius (new law) when they are called to an inheritance by reason of senatus oonsulta or constitutions.

Ulpianus, Libro V de omnibus tribunalibus (D. 2.15.8 pr.)

S’/we those to whom aliment has been left (by will) were very ready to settle their claims for a small cash sum. divus Marcus provided in an oratio delivered in the Senate (c. 175 A.D.) that no settlement of aliment would be upheld unless made with the authorization of the praetor.

Ulpianus, Libro XII ad Sabinum (D. 38.17.1 pr., 9, 12)

Whether the mother is a free woman or a freedwoman, her children can partake of her inheritance by reason of the senatus consultant Qrphitianum (178A.D.), (9) ‘If no one of the children or of those persons to whom statutory inheritance (i.e., intestate succession) is likewise afforded, wishes to claim her estate for himself let the old law (ius antiquum} apply."... (12) When the Senate says: "What has been legally adjudged, settled upon or disposed of". is to be explained that we should take "legally adjudged’ by one who had the right of judging, "settled upon as, in good faith, that the settlement should be valid, "disposed of" or brought to conclusion by consent or long-persisting silence.

Papinianus, Llbro [//] definitionum (D.l.1.7 pr.)

The ius civile is that which is derived from statutes, plebiscites, senatus consulta, decrees of the emperors, the authority of those learned (in the law}.

Paulus, Libra XI ad edictum (D. 4.5.7 pr.)

... Accordingly, guardians appointed by will or in pursuance ofa lex or a senatus consultant will remain guardians (in spite of loss of status}... Moreover, in­heritances and guardianships based on new laws are for the most part so given that the persons to receive them are designated (by describing} their natural position; for instance, senatus consulta confer an inheritance on mother and son (as such).

[Moreover - fin. ] is considered by many as interpolated; indeed, for others the whole passage is suspect, reff. in Index Interp. 1 57 and Supp. I 74, though Bon (ante, Corso I 170 n.l, insists that the first part is classical.

Ulpianus, Libra XVI ad edictum (D. 1.3.9)

There is no doubt but that the Senate can make law.

Note; Beseler, Beitrage II 21, suggests that the passage is interpolated;

contra, von Ltibtow, Volk412 n.l750.

The most significant problem respecting the resolutions of the Senate during the time of the Principate is the exact nature of the legal norms which were expressed in the provisions of the senatus consulta. It is apparent that some of the senatus consulta were responses to magistrates, advisory in nature, and similar to those of the republic.¹ On the other hand, from the time of Augustus on, other senatus consulta laid down rules of substantive law.¹ Some writers have felt that the Senate achieved legislative power as early as the rule of Tiberius.^{[1067] [1068] [1069] There was really no constitutional change, but merely a recognition of the fact that the Senate was the only authority resembling the populus Romanus, and so was entrusted with legislation.[1070] [1071] [1072] [1073] [1074] [1075] Jolowicz would add the idea that the Senate assumed the policy of guiding the praetor in his function of framing the edicts?}

As a result of increased activity, senatus consulta have been taken as one of the most important sources of private law during the Principate? An early idea that the senatorial norms, along with imperial enactments, constituted a ius extraordinarium, a legal sphere outside the normal, was sharply chal­lenged by Wlassak;¹ Chiazzese, however, referred to a ius civile novum, new civil law? More recently, Volterra has asserted that juristic usage plus the fact that Hadrian promulgated the Edictum Perpetuum by means of a senatus consultum show that senatus consulta were true and regular sources of law? Scholars have differed, however, as to the time when senatus consulta began to fashion ius civile. Gaius tells us there was no question but that senatus consulta had the force of statute in his time. Lenel argued that this was true at the start of the Empire.^{[1076] [1077] Others attribute the change from advisory opinions to authoritative decrees to the resolution of a controversy among the jurists of the 1st century of the Principate.11 De Zulueta reflects a fairly general view that at the beginning of the Empire the Senate gave authoritative advice to the magistrate which, translated into praetorian action, constituted ius honorarium, and only later, resolving the doubt expressed by Ulpian, did senatus consulta come to be accepted as a direct source of the ius civile.[1078] [1079] [1080] A number of scholars fix upon the reign of Hadrian as this later time.” The instances of earlier date, adduced by Lenel, Wlassak and others to show that senatus consulta fashioned ius civile, are explained away, or taken as evidence that the distinction between ius honorarium and ius civile was disappearing in the early Principate?4}

Some time ago Schiller made a study of all senatus consulta of the early Empire in an attempt to determine the legal status of these enactments.¹¹ In the first place it was noted that the form of senatus consulta or the role of the emperor in submitting proposals to the Senate made no difference as to the nature of the senatus consulta involved.¹⁴ It was soon recognized that the greater number of the resolutions of the Senate were administrative in nature, with a considerable number of senatus consulta in the field of criminal law and procedure. All told only some twenty-five of the known pronouncements dealt with private law and procedure,¹¹ and of these only five with certainty, and at most seven, are instances in which the praetor carries out the recommendations of the Senate. The fact that these prae­torian interventions have been the subject ofjuristic commentary, and dwelt upon by medieval and early modern writers, has served to overemphasize their relative importance. Several other senatus consulta, administrative in character, only involve private law in a minor way. In some cases litigation arising out of institutions created by Senate resolution was carried on by cognitio extra ordinem (extraordinary investigative process), and thus completely at odds with the norma! formulary procedure before the praetor. Hence most of these cannot be included within either the ius civile or the ius honorarium. But they all can, and should be, included within the field of the ius novum, an infrequent but none the less technical designation of the ’new law’, a designation which recently has gained renewed attention by Romanists.¹⁴ The new law was in form quite similar to the older ius civile and ius honorarium, but in substance was quite distinct.¹’ Though animated by the same principles of equity that pervaded the ius honorarium, it was not fashioned by the praetor. It derived from the leges of Augustus and his im­mediate successors, from the senatus consulta and constitutions of the emperors, and enjoyed the interpretatio of the jurists as well as the applica­tion of bureau officials,²® There are a number of passages in the juristic writings which tie together leges, senatus consulta and constitutiones as sources of Roman law, generally as ‘new law’ in contrast to the ‘ancient

15. Schiller, ‘Senatus consulta in the Principate’, Tulane L. Rev. 33 (1959) 491-508 [ » Ameri­can Experience 161-78],

16. Schiller, op. rit, 494-96.

17. These are briefly sketched, Schiller, op. dr., 498-504.

18. The term ius novum was stressed by Riccobono, Atti 1° cong. naz. studi rom. (1929) 235. See further De Frandsci, Storla II. 1 386; Orestano. St. Cagliari 26 (1938) 151, 171; Grosso, Prentesse 2f) f.. 132 n.13; SdnUer.Sefflftwr7(1949)26.41-44[ = /4meri«»£x/wrienar 107-10]; Guarino, Ordinamento 175 ff.; Kaser. Rdm. Privatrecht I 199, 209 n.3l. Riccobono, Jr., has given us a complete historiography of the theory of ius extraordinarium/ius novum from Rudorff to the present time. Qr. Giur. N.S. 20(1949) 162-96.

19. See infra, chap. XII, J 178.

20. Bureau influence on the new law is discussed infra, chap. XI, f 162.

law’. *' Often litigation arising out of these new institutions is afforded by cognitio extra ordincm, but, again, the praetor’s court could be the forum for dispute, as in cases arising under the SC Tertullianum. The field of ius novum was thus broader than that of ius extra ordinetn, and it extended into spheres beyond that of the private law, forming the subject matter of some of the commentaries, case books and monographs of the later classical jurists.¹¹

As a summation of Schiller’s study; ’The conclusion seems warranted that the vast majority of the senatus consulta of the Principate gave rise to principles of “new law”; to rules and regulations, licenses and liberalities in the administrative field; to charters and grants and to the governance of the provinces; and to a very small amount of private law, establishing rights and duties in the law of marriage, guardianship and succession, and providing new devices in the field of slaveiy and freedom, freedman and patron. In all these aspects the Senate was, by its resolutions carrying out imperial policy directly urged or indirectly reported to it. The senatus consulta clearly stand alongside the leges of imperial times and the constitutiones of the emperors in providing new legal institutions for the Empire. The senatus consulta of the Empire should be divorced from the context of the old law of the republic, the law of city Rome, and should instead be joined to the Augustan and Tiberian laws and the imperial constitutions as the law of Empire Rome (Reichsrecht). In that perspective the legislative senatus consulta will take their proper place in the evolution of the Roman law, while the senatus consult a which depended upon the praetor for their force will be recognized as anachronisms, the last efforts of the outmoded judicial magistrate, soon to be overshadowed by a hierarchy of imperial officials with ever-increasing judicial powers.” It is only the conservative tradition of juristic literature of the second and early third centuries which has given such disproportionate treatment to the last phase of the ius honorarium.’²⁴

In appendices to his study of the nature of senatus consulta in the time of the republic, Crifd has dealt briefly with the status of senatus consulta in the Principate.¹⁵ Ndrr, he notes, has pointed out the tendency towards legaliza­tion in the later classical epoch, the attribution of the force of law to acts which had not been legal norms.³⁴ Crifd is of the opinion that this tendency is to be seen in G. 1.4, with the substitution of ’which the Senate orders and

21. These instances are noted in Schiller, Tulane L Rev. 33 (1959) 491, 506 n.H8 [ -r American Experience 176 a. 118].

22. Schulz, History 187, 197, 226, 242. 252.

23. A significant instance of this revealed in Schiller, RIDA 3 (1949) 319 ft [reprinted in BIDR 57/58 (1952) 60 ttj.

24. Schiller, Th&aie L. Rev. 33 (1959) 491, 508 [ American Experience 178].

25. Crifd, BIDR 71 (1968) 31, 104-15.

26. Norr, Festschrift Feigentraeger 353, 362 f.

establishes' (iubet atque constituit) for the earlier ‘the Senate resolves’ (senatus censet). The same tendency is to be observed in the passages of Pomponius and Ulpian on senatusconsulta in general. There is the desire to place other norms which continue to be developed, c.g., by means of senatus consultum, on the same plane as those norms which had been created by lex.

It is apparent that at this moment in the study of Roman law there is no consensus respecting the legal position of senatus consul ta in the time of the Prin cipate. Are they, as Loreti-Lorini and those following him would have it, ’legislative’ enactments with the force of statute, or, as Schiller urges, part of the ‘new* law, or, as Crifd says, normative rules on a par with statutory norms? Perhaps a re-examination of all instances, in juristic writings, in non­legal sources, in inscriptions and papyri, is called for; the long-awaited work by Voltcira may provide the answer.

The texts of the senatus consulta found in inscriptions, papyri and ancient authors is presented by Bruns, Fontes 164-211, and - limited to those in inscriptions and papyri - in FIRA 1240-94; most of these texts are translated into English, in ARS. Biondi and Arangio-Ruiz have carefully collated the senatus consulta of the reign of Augustus, in Acta Divi Augusti 225-74. Volterra, s.v. Senatus Consults, NNDI16 (1969) 1056-78, has given the most extensive listing of senatus consulta of the republic and the Principate to date, with full bibliography for the 201 resolutions of the Senate he has included.