Chapter VII: Direct Legislation at Rome

B. _The Senate._

When legislation by these assemblies ceased the turn of the Senate came. This body, a Council of Elders as old as Rome itself, perhaps in its original form corresponding to the Council which surrounded the Homeric king, seems to have claimed, even during the Republic, the right of general legislation, a right which the popular party denied, and which was probably not well founded in law, although its undoubted competence to issue administrative decrees for temporary purposes made the claim plausible, and raised many questions of delicacy and difficulty regarding the exact limits of its power. Moreover the Senate, whose proper function was to advise the magistrates, came to have a sort of ill-defined authority over them, and they often found it prudent to shelter themselves under that authority; so sometimes a resolution directing a magistrate to take such and such a course might be quoted as possessing legal validity, especially if the course was one which lay within the scope of his official discretion. The whole subject was full of uncertainty, and a controversy seems to have gone on among constitutional lawyers regarding the Senate’s powers, similar to that which long raged in England over the so-called dispensing power of the Crown[127]. When the _comitia_ ceased to be convoked, except occasionally as a matter of form to give effect to the monarch’s will, it was natural that the legislative functions of the Senate should win full recognition, for they furnished exactly the method of legislation which the Emperors desired. As the Roman State remained a republican commonwealth in theory and in strict intendment of law long after it had passed under the sway of a monarch, and as it was the object of the monarch to keep up this theory, he found it easy and safe to act through the Senate, which (though absolutely obedient to him) still wore the air of an independent body, rather than in his own person, ample as was the magisterial authority wherewith he was clothed. Thus the Senate at the same moment acquired power and lost it. It became recognized as entitled to make law, but it found itself the mere instrument of the Emperor for that purpose. From the time of Tiberius down to that of Hadrian, many laws were passed by the Senate; and though its action became thenceforward less frequent and less important, its rights lasted as long as it lasted itself, that is to say, till it died out in the disorder of the seventh century. They are referred to by Justinian as if still existing, but we do not hear of any practical use made of them in his time. One of the latest measures ascribed to the Senate is, oddly enough, a decree for regulating the election of Popes, and preventing tumults thereat.

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Footnote 127:

This is illustrated by the words of Gaius, ‘Senatus consultum legis
vicem obtinet quamvis fuerit quaesitum’ (Gai _Inst._ i. 4). Ulpian
however says, ‘Non ambigitur senatum ius facere posse’ (_Dig._ i. 3.
9). It too exerted a sort of dispensing power: cf. Sallust, _Cat._ 29.

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The Senate was in most respects much better fitted for legislative work than the popular assemblies had been, indeed than most assemblies have been in any country. It was composed of men of mature age, versed in affairs, many of them having filled high office, others having served as judicial referees, if we may so render the term _iudices_; all therefore, or nearly all, possessing some knowledge, and many a large knowledge, of law and of administration. It was large enough to comprise persons of very varied experience, while small enough (in normal times) to be business-like, and to avoid the danger of degenerating into a mob[128]. Like the _comitia_, it voted only once on a proposition, and that one vote was sufficient to pass a law. Again like the _comitia_, it could only deal with what the magistrate brought before it, private members having no initiative. But, unlike the _comitia_, it could debate a proposition and make amendments thereto; that is to say, when a particular draft measure was submitted, it was able, being thereby seized of the matter, to reject the proposition as drafted, and to pass one containing different provisions. There does not seem to have been anything analogous to our English system of going into Committee, and afterwards making a report to the House; but, as the decrees submitted were short and simple compared to those which the British legislature deals with, the method of amending the proposal submitted, or debating and passing an alternative proposal, was doubtless sufficient for the needs of the case. What was lacking to the Senate was not machinery, but force. It was a tool in the hands of the Emperor, and was used by him as a means of formally enacting and promulgating measures on which he had already decided. His influence soon came to be so fully recognized that the later lawyers sometimes cite not the _Senatus consultum_ itself, but the speech (_oratio_) in which the Emperor proposed it to the Senate, although in these cases the legal validity of the law seems to be attributed to the vote of the Senate. After Hadrian it would appear that legislative decrees were always passed at the instance of the monarch.

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Footnote 128:

Though Augustus found over a thousand members in it, many of them
unworthy, and was obliged to purge it carefully down to a reasonable
strength (Sueton. _Octav._ 35). Whether there were senators with no
legal right to speak but only to vote—they voted, as in the English
Parliament, by dividing into two bodies—is matter of controversy.
There was no closure, so senators used to talk against time.

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Under an indulgent Emperor, and in matters of ordinary private law, there might of course be no great reason why amendments should not be suggested or even opposition made, by an active senator, to bills proposed by the presiding magistrate, although the magistrate himself was usually merely the mouthpiece of the monarch. But the habit of servility grew so fast, that even this remnant of independence seems to have soon become rare. Nothing was so dangerous as to give offence to a sovereign whose power was restrained only by his good nature.

The checks which have been noted as existing in the case of the _comitia_ on prolixity or obscurity in the terms of a statute, were absent in the case of the Senate. Yet the good habits formed in earlier centuries were not lost. The _Senatus consulta_ which remain to us are favourably distinguished by their clearness and brevity. The ease with which they could be passed, or repealed when passed, does not appear to have led to their being drawn carelessly as regards either substance or form. It may however be remarked that having been originally not so much laws as resolutions of a body primarily advisory, intended to express its opinion, and to guide or strengthen the hands of an executive magistrate, they continued to be couched in language hardly so technical as that of the old _leges_. They are less imperative in form, and often express quite as much in their preamble, which contains the motives that have suggested the decree, as through the more strictly enacting part. Occasionally they approach dangerously near, as preambles are apt to do, to becoming rhetorical declarations of policy.

The _Senatus consulta_ actually preserved, or known to us by name, are less numerous than might have been expected. The same may be said of the _leges_, or rather of such among them as were of general and permanent effect, not mere acts of an executive nature. If we could suppose that the legislative activity of the Roman State had manifested itself only through _leges_ and _Senatus consulta_, it would be hard to understand how that State, developing as it did, could have got on and attained its amazing development in wealth and population with so few legislative changes. The explanation, of course, is that the Praetor and the jurists were doing the main part of the work, just as during the eighteenth century in England the judges and text-writers were steadily developing our private law, which was but little altered by statute through the whole of that century. During the later Republic and the earlier Empire direct legislation was (speaking generally) resorted to either to abolish some deeply rooted rule or else to establish some new departure, which a magistrate hesitated to undertake on his own responsibility.