The Senatorial Resolutions as a Source of Law
As previously noted, during the republican epoch the senate had, in theory, no law-making powers. Its resolutions (senatus consulta) were largely advisory in nature and had no legal effect unless they were incorporated into a statute or magisterial edict.
The last century of the Republic featured a decline in the political role of the assemblies and occasionally a magistrate’s proposal approved by the senate came into effect immediately without popular ratification. After the establishment of the Principate, an increasing number of laws originated in this way and, in time, the senatus consultum rather than the lex became the chief means of legislation.[157] Resembling the pattern followed under the Republic, the senatus consulta were couched in the form of instructions addressed to magistrates and were assigned the name of the magistrate who proposed them rather than the reigning emperor. However, from the start, the senate was virtually a tool of the emperor and had no free hand in the matter of legislation any more than it had in other matters. Indeed, most senatorial decrees were passed on the initiative of the emperor or at least with his acquiescence. From the time of Emperor Claudius (ad 41-54), senatorial decrees were increasingly composed by imperial officials and the relevant proposal was presented in the senate by or in the name of the emperor (oratio principis). The senators were then invited to express their views and a vote was conducted. However, the emperor’s influence on the senate entailed the latter never failing to agree with the main premises of the proposal. As the movement towards absolute monarchy advanced, the terms of the emperor’s proposal were increasingly adopted as a matter of course by the senate without even the pretence of a discussion. By the end of the second century ad, this practice was so routine that it was customary to label a senatus consultum as an oratio of the emperor on whose initiative the senatus consultum was passed. In the third century, emperors no longer submitted their proposals to the senate for approval and thus the senatorial resolutions formally ceased to exist as a source of law.In the first two centuries of the Principate numerous senatus consulta were issued that effectuated important changes in the areas of both public and private law. An early senatorial decree of this period was the senatus consultum Silanianum of ad 10 that aspired to repress the frequent killing of masters by their slaves.[158] Other important senatorial resolutions of this period embraced: the senatus consultum Vellaeanum (ad 46) that forbade women from assuming liability for debts of others, including those of their husbands[159]; the senatus consultum Libonianum (ad 16) that imposed the penalties of the lex Cornelia de falsis for the forging of testaments[160]; the senatus consultum Trebellianum (c. ad 56) and the senatus consultum Pegasianum (ad 73) that concerned the acceptance of inheritances subject to fideicommissa[161]; the senatus consultum Iuventianum (ad 129) that addressed matters such as claims of the Roman public treasury (aerarium populi Romani) against private individuals for the recovery of vacant inheritances; the senatus consultum Macedonianum (second half of the first century ad) that prohibited loans to sons who remained subject to partia potestas[162]; and the senatus consultum Tertullianum, passed in the time of Hadrian, that granted mothers the legal right of succession to their children’s inheritance.[163]
2.4.4
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