THE LEGISLATIVE ROLE OF THE REPUBLICAN SENATE

§ 155 Livius, Ab urbe condita XXXV.7.4 (193 B.C.)

... Marcus Sempronius, upon approbation of the Senate (ex auctoritate patrum), proposed to the plebs and the plebs enacted...

Livius, Ab urbe condita XLI.9.9, 11 (177 B.C.)

Then Gaius Claudius proposed a law respecting the allies on the basis of a resolution of the Senate (ex senatus consulto) and he proclaimed by edict... (that they return to their respective states). (11) A senatus consultant was added ^{[1049] [1050]}

to the law and the edict of the consul that a dictator, consul, interrex, consor or praetor then in office... should require an oath that a slave about to be manu­mitted would not become a citizen (of a state of which he was not already a member).

When the authority of the Senate with respect to legislation (auctoritas patrum, supra, § 83) was reduced to a preventive approbation of a proposed legislative act, the Senate gradually assumed the aspect ofan advisory council to the Roman magistrates? It was customary on the part of a magistrate to seek the Senate's opinion on a proposed bill, and undoubtedly a great deal of legislation originated in the discussions of the Senate. Similarly, the Senate was always able to find a magistrate who would be willing to carry out its wishes in the form of a rogatio or an administrative act? As the only permanent governmental agency in the Roman system of annually rotating magistracies, the Senate had almost complete control over the appointment of ex-magistrates to provincial posts, and, above all, it exercised super­vision over the treasury?

Asconius, In Cornelianum, Bai.57-58 (St. 47-48) (67 B,C.)

... And he (C. Cornelius, tribune of the plebs) promulagated a statute by which he lessened the < authority > of the Senate, to the effect that no one be exempted from (the operation of) the statutes except by the people.

1. Mommsen. Staatsrecht 1 209-12; Volterra, s.k Senatus consults, NNDI 16(1969) 1049.

2. Mommsen. Staaisredu 111.2 1025 IT.

3. Cf. generally, Karlowa, Rechtsgcscfuchte I 373-77; Mommsen. Staatsrecht III.2 1022-36.

§ 155 who were threatening him to be apprehended by the lictor. his fasces were broken and stones were thrown at the consul from the very edge of the assembly. On account of the tumult, Cornelius, disturbed. dismissed the assembly. Later, the same matter was taken < up with great > contentions in the Senate. Then Cornelius again began to propose that no one should be exempted from the statutes by the Senate unless (members) were pre· sent, nor should anyone intercede when one < wax so freed >, since that matter ought to be carried.

Cf. Dio 36.39.

Cicero, in M. Antonium oratio philippioa V. 19.52 (44 B.C.)

... For this reason I approve the senatus consultum that it be permitted to Lucius Egnatuleius to stand for, be elected to. and to discharge (the duties of) any magistracy three years before the statutory time. By which, senators, ad­vantage is bestowed not so much on Lucius Egnatuleius as upon the office; in such a matter it is enough to be nominated.

What may be looked upon as a negative legislative activity of the Senate is presented in the Asconius passage. The right to exempt an individual ora group from the operation of statutes (solutto iegibus)lay with the assemblies of the people, and up to the time of the Gracchi senatorial exemption was always accompanied by the approval of the populace. From then on, how­ever, the Senate usurped the power to itself, with the result that it was abused. Cornelius attempted to return the right to the people, but the net result of his legislation was nil; it only confirmed the power in the Senate.*

Pomponios, Libro singular! enchiridii (D. 1.2.2.9)

Then (after the lex Hortensia), since it became difficult for the plebs to convene, and surely far more difficult for the people, considering the great increase in numbers, necessity itself diverted the administration of the commonwealth to the Senate; hence the Senate began to interpose, and whatever it enacted was observed, and this enactment was allied senatus consultum.

Cicero, Topica V.28

A partitive (definition) exists when that matter which is concerned is separated into its component parts, as if one said; the ius civile is that which is found in

4. Generally on solutio legibus, see Willems. S^nat II116-20; Siber, Veffitssungsreeht 247 f,; Jolowicz Nicholas, Introduction 34 f. Instances of the use of the power of exempt ion are given by O’Brien Moore, s.v.

statures, resolutions of the Senate (senatus consult a f judgments, authority of the learned in the law, edicts of magistrates, custom, equity....

Cicero, Pro L. Murena oratio XXXII.67 (Nov., 63 B.C.)

You have stated that upon my proposal (as consul, in 63} a senatus consult urn was passed: ’if men (hired} for money should go to meet the candidates, if men had been hired to follow them, ifplaces were reserved for whole tribes at the gladia­torial fights and, similarly, if banquets were given to the people at large, this would be held to have been done contra to the lex Calpurnia (67 B.C.}.' There­fore, if the Senate judges that these acts would be held contra to the statute if they were done, its decreeing so, while gratifying to the candidates, would be pointless. For the pressing question is, has it been done? If it has been done, no one could doubt but that it was contra to the statute.

Lex iulia municipalis 50-32 (Bruns 102, FIRA I No. 13) (45 B.C.) The aediles and the quattuorviri.,, (and} theduovin... shall see to the cleaning of the public roads and shall have full power in such matter as is or shall be required by leges or plebiscita or senatus consulta, nothing in this law being enacted to the contrary.

The personages mentioned arc municipal magistrates.

During the 19th century the opinion became well established that senatus consulta acquired the force of law (legis vicem) during the last century of the republic, on the basis of such passages as above, and derived from an examination of the content of the senatus consulta of this period. Rossi, one of the most strenuous exponents of this view, contended that the legislative power of the Senate through the senatus consulta failed to reach complete fruition during the republic only because of the political disturbances during the last years of the era.^{[1051] [1052] [1053] [1054] Krüger stated that in the late republic the Senate had the power of cassation over legislative drafts, and exercised the right of extensive and restrictive interpretation of the enacted law.4 Arangio-Ruiz likewise attributed to the Senate the right to decide upon the constitution* ality of laws and to set forth maxims of interpretation.1 Kipp just as flatly stated that it could not be possible that a senatorial decree should tie the hands of a jury, as Cicero seems to imply.’}

For more than fifty years, however, the opposite opinion, namely, that senatus consulta were not the same as leges until the Principale, has received full support.