The senate was in strict theory of law a purely consultative body, at first of the king, later of the consuls. It could not pass laws, as could the comitia; it could only give advice, and that only when asked by a magistrate with whom the executive power lay. In the earlier republic it is probable that the magistrates were in fact as well as in law more powerful than the senate, but in the later republic, through the growth of a constitutional convention which made the consultation of the senate by the magistrate necessary for almost all business except routine matters and the conduct of operations in the field, it was the senate which became the actual governing body at Rome.
- Senate composition
Originally, then, the senate was the king's council, and there can be no doubt that he appointed the members of it. It has indeed been suggested, on account of the importance which attached to the gentile organisation in early Rome, that the senate was a representative body consisting of the heads of the gentes, the chief argument in favour of this view being the traditional number of senators –300– which corresponds to the number of gentes, if we believe the statement that there were ten of these in each of the thirty curiae. But we have already seen reason to reject this statement, and the idea of representation is so alien from all that we know of the composition of the senate in historial times that it cannot be believed to have operated even in the earliest period, though no doubt the king, in the exercise of his choice, would be guided to some extent by a desire to hold the balance between the various gentes.
In any case it is clear that originally only patricians were members of the senate; they alone were originally fully privileged citizens and, as we shall see, even in late republican times certain formal functions were reserved for the patrician senators. How and when plebeians were first admitted is unknown. According to Livy, on the expulsion of the kings the ranks of the senators, which had been thinned by the preceding revolution, were made up again by the addition of members of the equestrian order, and this was the origin of the famous phrase patres conscripti which was always used by speakers addressing the senate. The phrase must be understood as equivalent to patres et conscripti, the conscripti being the newly "enrolled" members. Plutarch makes these members plebeians. According to another author Servius Tullius had already introduced plebeians into the senate. At any rate they were eligible as far back as recorded history goes, though it is clear that they must have been in a minority, probably a small minority, during the struggle between the orders, as Livy constantly represents the senate as the stronghold of the patrician party. There cannot indeed have been much chance for plebeians so long as the magistrates who chose the senate were necessarily patrician, and a chance presumably only took place when the military tribunate with consular power first opened the supreme magistracy to the plebs. The view that the plebeian members had the right of voting but not of speaking (though held by Mommsen) does not appear to have any real foundation.
In their choice of senators the consuls, like the kings, seem to have been quite free from all legal restrictions. No doubt they were more or less constrained by custom to choose men who had held high office, but, so long as the magistracies were few, there must have been a considerable field in which they could use their unfettered discretion in making up the number of 300. The same was probably true of the censors when the function of appointing senators was first transferred to them. Exactly when this happened we do not know, but it must have occurred either before the lex Ovinia or by that statute itself. The lex Ovinia enacted, according to our account of it, that the censors were to "choose the best men of every order". This is generally understood as limiting their discretion by imposing on them the duty of considering before others the claims of all former curule magistrates in turn, first the ex-consuls then the ex-praetors and then the ex-curule aediles. If this is right then the lex Ovinia must be subsequent to the institution of the praetorship in 367, and Mommsen puts it about 312 B.C. It is however also possible that "of every order" means "without distinction between patricians and plebeians", in which case the lex Ovinia would be an episode in the struggle between the orders and perhaps represents a compromise. There may have been trouble between the patrician and plebeian military tribunes about the choice of the senate, and the compromise would be an agreement to transfer the duty to the new magistrates (the censors) with instructions to be impartial between the two orders. In this case the lex Ovinia must have fallen within the period of the military tribunate and consequently be much earlier than the date to which it is assigned by Mommsen.
Be that as it may, the power of choosing senators came to be the most important of the censor's duties, though their choice was, in fact, limited by the right which former magistrates had, by constitutional practice or in some cases by law, to be chosen, unless some good reason could be assigned for excluding them. At the time of the Punic wars this right was still confined to the ex-curule magistrates (consuls, praetors and curule aediles), but it was extended first to plebeian aediles, then to tribunes and finally under Sulla to quaestors. As a result of these extensions there were always enough ex-magistrates to fill all the seats in the senate, and in practice the right of the censors was limited to the removal of a qualified person from the list if they considered him to have been guilty of serious misconduct. This remained true although Sulla raised the number of senators to 600, for he also increased the number of quaestors to twenty. The result of the filling up of the senate with ex-magistrates was that it became in effect a body elected by the assemblies, the chief importance of election to the quaestorship being indeed that it carried with it a seat in the senate. But it must not be imagined from this that the senate became a democratic body. It was only seldom that the comitia elected men who did not belong to the aristocracy, and, once elected to office, a man held his seat in the senate for life.
- Functions
+ Functions in connection with Legislation
. Auctoritas Patrum
In spite of the admission of plebeians to the senate certain traces of its original exclusively patrician nature survived. All acts of the comitia (legislative, elective and judicial) needed for their validity the auctoritas of the patres, that is, no doubt, originally of the whole patrician senate, and the right of giving this approval remained with the patrician members of the senate after the introduction of plebeians. For plebiscita, the enactments of a body with which the old constitution had had no concern, the auctoritas was unnecessary (and our knowledge of the comitia tributa indeed is so scanty that we cannot say for certain whether it was ever needed for acts of that body). As Mommsen points out, the function of the patres in this matter was probably not that of a second chamber to the comitia; they had not to consider the expediency of the course proposed, but rather whether it was in accordance with the fundamental religious basis of the state –had the people, for instance, a just cause for making war on a state with which they had treaty relations?–. It is this aspect of the matter which explains the sinking of the auctoritas to little more than a formality. Generally there was no question f the religious admissibility of a proposal, especially not in the later republic when these matters were not taken so seriously, and the giving of the auctoritas became a matter of course. Originally given after the voting the auctoritas had by the lex Publilia Philonis of 339 B.C. to be given before the proposal was put to the people in the case of legislation, and this principle was extended to elections by a lex Maenia.
In itself this change would not have made the auctoritas any less important than it was before, but it appears that by this time the increasing number of plebeians in the senate and the growth of the new patricio-plebeian nobility had already resulted in the view that the exercise of this function by a part of the senate was an anomaly and should be regarded as a matter of form alone.
. Consultation by magistrates before the submission of a bill to assembly
The real powers of the full senate, including the plebeian members, were, unlike the shadowy powers given to the patricians, not a matter of law but of constitutional convention. It was a convention of the constitution that the magistrates should not, except for routine purposes, use their powers without first consulting the senate, and it was customary therefore for the magistrate who intended proposing legislation in the assembly to bring the matter first of all before the senate. This was all the more necessary as, once the proposal had been promulgated, there was no possibility of amendment and the contiones afforded but little scope for real discussion. In the senate on the other hand the proposal could be properly debated, and the magistrate might alter his original draft in accordance with amendments suggested before he finally promulgated it. The initiative remained of course with the magistrate, but in the later republic, when the number of magistrates who had a right to summon the senate was large, it was always possible for any considerable party in the senate to find a magistrate who would call a meeting at their request. Similarly, if a magistrate, in defiance of constitutional practice, wished to put a proposal before the people without first consulting the senate, it was normally possible for the senate to find a tribune who would veto his action. Instances in which magistrates successfully ignored the senate belong to the revolutionary period.
Even if the proposal was not vetoed and passed the assembly, the senate had still a weapon left, for, as we have seen, it came to be considered the guardian of the constitution and it would generally not be difficult to find some flaw in the enactment, for instance that the auspices had not been properly taken, which would invalidate the proceedings. Strictly, it was for the magistrates, as executive officers, to decide whether they should ignore the questionable enactment or put it into force, but they could hardly take so serious a step as ignoring it on their own authority, and, as happened in the case of Drusus's proposal, the ultimate decision rested in fact with the senate.
. Dispensing power
Strictly, as the assembly was the only body which could make law, so it alone could exempt an individual from the operation of a law. This power was, however, gradually usurped by the senate, which would grant a dispensation in urgent cases subject, at first, to ratification by the comitia, this ratification being subsequently reduced to a formality or omitted altogether. An attempt made in 67 B.C. to deprive the senate of the right it had usurped only resulted in its confirmation, by a lex Cornelia which provided that at least 200 senators must be present when a dispensing resolution was passed.
One important feature of Roman rule, the government of provinces by pro-magistrates, i.e. magistrates whose term of office had expired, rested essentially on the dispensing power of the senate, which prolonged the magistrate's imperium by dispensing him from the original term to which he had been restricted.
+ Functions in relation to the Magistracy
With regard to the actual election of magistrates the senate exercised little power. We have already mentioned the formality of the patrum auctoritas, and there was one other function, of greater importance, which was reserved for the patrician members. This was the appointment of an interrex. If the supreme office of the state was vacant, as might happen if both consuls died suddenly, then there was no one competent to hold the elections, and, as the technical phrase was, the "auspices returned to the patres". The patrician members of the senate met together and elected an interrex who after holding office for five days nominated his successor and so on until one of the interreges held the consular elections. Any interrex could conduct the elections except the first, presumably because his nomination was deemed irregular. The patres in later republican times only exercised their functions in this matter on the initiative of the senate as a whole, which suggested that they should meet for the purpose.
The senate (i.e. the whole senate) also exercised de facto power with reference to another extraordinary magistracy, the dictatorship. As we shall see, the power of nominating a dictator in an emergency belonged to the consuls, but, already early in the republic, it became customary that this power should only be exercised at the suggestion of the senate, which finally went so far as to suggest, not only that a dictator should be nominated but also who he should be. This practice of course fell into abeyance with the disuse of the dictatorship itself after 202 B.C.
On the appointment of magistrates elected in the various assemblies the senate had no influence at all beyond those indirect methods of influencing votes which are known to government of all ages, but these were usually, though by no means always, sufficient to prevent the return of candidates who were distasteful to the majority in the senate. After their election, however, the senate, by the power which it acquired of assigning their different spheres of activity to the magistrates, exercised a very important control. The consuls, for instance, were each fully competent to exercise all the powers inherent in imperium, but they in fact often arranged a division, each frequently taking command of one of two armies destined for different campaigns. Though strictly the division was made either by arrangement or by lot, the senate sometimes suggested that one magistrate was better fitted than another for a certain sphere, and, above all, it came to be the undisputed prerogative of the senate to mark out the spheres themselves, i.e. decide which were to be the consular "provinces". After Sulla's reforms, the consuls always remained at Rome during their time of office and only proceeded to military commands or governorships abroad as "pro-magistrates" after their year was over, so that the decision which were to be "consular" provinces might make all the difference between giving a man a great command abroad or some unimportant post in which he could gain neither fame nor riches. The senate had thus in 60 B.C., foreseeing that Caesar would be elected consul for 59, and desiring to keep him quiet, assigned the internal administration of Italy, up-keep of roads, etc., as the consular "provinces" for 58, a decision which Caesar simply overruled by getting a plebiscite passed which gave him the governorship of Gaul for five years. But these were, of course, revolutionary times; usually the decision of the senate in this matter was one of the ways in which it controlled the consuls.
Under the heading of functions in connection with the magistracy may also be put the power, assumed by the senate during the revolutionary period of the late republic, of passing a resolution known as senatus consultum ultimum, the force of which was, at any rate according to the Oprimates (the "Conservative" party), to arm the magistrates with extraordinary powers, including, so it was alleged, that of putting citizens to death without appeal to the people. In form the resolution was only advice to the consuls (sometimes with the addition of other magistrates) to "see that the commonwealth did not suffer", but its object was to proclaim something like martial law in times of crisis, and it was in part a device intended to fill the gap in the constitution made by the disuse of the dictatorship, the original constitutional provision for creating a strong executive in times of emergency. Though the Romans would probably have agreed generally that if there was actual armed force used against the state it was permissible for the consuls to go outside strict law in meeting it, and that the senate as the great Council of State might point out their duty to the consuls, the fact was that the senatus consultum ultimum was only used for party purposes and during the period at which the senate really represented only one party (the Optimates); its legality was consequently never recognised by the democratic party. In particular the execution of the Catilinarian conspirators without trial by Cicero when consul in 63 B.C., though the senate had passed the consultum ultimum, was generally regarded as illegal and was the chief reason for his banishment in 58 B.C.
The two spheres in which the influence of the senate made itself most strongly and most consistently felt were those of finance and foreign affairs. Here, as throughout, the action of the senate is in form advisory, but nowhere else does the form wear so thin and the fact emerge so clearly that it is the senate itself, not the magistrates whom it advises, with whom the real decision lies.
+ Financial Functions
To understand republican finance we must first rid ourselves of the modern preconception that the greatest part of a state's income must necessarily come from taxation. At Rome the principle was rather that the state should have enough income to meet all ordinary charges without taxation. Nor again must we suppose that all expenditure of a public character is necessarily met by payment out of the public treasury. The Romans so far as possible were accustomed to provide for ordinary recurring expenditure by appropriating specific sources of revenue. The expenses of religion were thus largely met by appropriating the rents of certain state lands once and for all to the service of particular temples. Even military expenditure might be dealt with in a similar way. Until a comparatively late period the payment of money to which cavalrymen had a right for their horse and its fodder was a burden on women and orphan children who owned property but could not be rated in the census because the census list contained only the names of those capable of bearing arms. That the money payable in such cases did not go through the state treasury, but direct, is clear from Gaius, who says that if the soldier was not paid he could seize a piece or property from the person liable in order to enforce payment. Even the payment of the infantry appears originally to have been a matter for the tribes, if indeed they were paid at all, but was early taken over by the state (406 B.C.).
This system of permanent appropriation was one of the chief causes of senatorial control over finance; expenditure not covered by it was necessarily a non-routine matter and so, on the general constitutional principle, needed the senate's sanction.
The main ordinary source of income was the revenue from public lands. To this must be added some indirect taxes, especially the portoria, export and import duties, and a certain amount of fines inflicted for various offences. But Roman indirect taxes differed from ours in that they were not reconsidered annually and so variable in amount from year to year, but laid down once and for all. In the later republic, when Rome had already extended her conquests widely, there was an additional source of income in the taxation of the provinces, but here too the taxes were levied under permanent schemes and according to the final theory represented rent for the land which, although left to its original owners, was held to have become the property of the Roman state. Where the ordinary revenue was not sufficient for state expenses, as generally happened during the wars of the earlier republic, it was necessary to have recourse to taxation. The tax, known as tributum, consisted of a proportion of the citizen's property as assessed for the census list (which was also the basis of arrangement in classes for purposes of the centuriate assembly), and it was for the consuls to say when it should be levied and what the proportion was to be, but here the consuls probably never acted without senatorial authorisation. Strictly the tributum was not so much a tax as a forced loan exacted to meet an emergency and repayable if circumstances permitted. There are indeed instances of repayment after a successful campaign, but such cases were rare, the tributum was, in fact, almost always levied, until the victory of Pydna in 168 B.C., by providing the treasury with enormous booty, made it unnecessary. Direct taxation was never again imposed on citizens during the republic.
As to expenditure, the chief extraordinary outgoings besides those necessary for war were for public works, roads, buildings, etc. The civil service was little developed; the higher officials were all unpaid (though opportunities for making money were not always lacking) and though they had paid assistants this did not form a large item. Most of the innumerable burdens which a modern state takes on itself (e.g. education, relief of poverty, supervision of the conditions of employment) were lacking, a fact which to some extent explains the simplicity of Roman financial arrangements when compared with our own.
In strict theory of law the state treasury (aerarium) was under the control of the chief magistrates, the consuls, and they alone were entitled to take money from it; but this theory does not correspond with the facts, for the senate kept a firm hold on finance, and the main financial officers were the censors and the quaestors. The duties of these officers were however quite different and must be dealt with separately.
. Censors
These magistrates are sometimes said to have been the "budget-makers" of Rome, but, from our point of view, it was a very imperfect budget that they made. They had to compile the census-list and for this purpose they appear to have had a considerable discretion in the valuation of property. We hear, for instance, that Cato in 184 B.C. assessed articles of luxury at ten times their real value, which meant of course that their owners would have to pay an increased amount of tribute. It was the censors too who made the contracts necessary for getting in the public avenue; they could for instance lease public land or such sources of wealth as mines or fisheries belonging to the state at a rental, and it was they who made the contracts with the publicani, the tax-farmers. Taxes such as the portoria, or the vectigal (payment for public land "occupied" by squatters), and the various forms of taxation in the provinces, were not, in the republic, collected directly by state officials, but farmed out to speculators who paid or promised a lump sum for the right to collect the taxes, hoping, of course, to make a profit by collecting more than they had to pay. The system resulted in considerable oppression, as the publicani were not properly controlled, and vast profits were often made. Sometimes however they overreached themselves, either when the competition in bidding between different companies of publicani was particularly keen, or when a harvest turned out badly, and were faced with release them from their contract, and we know of several instances in which this was done.
Besides arranging for the collection of public revenue the censors were also to some extent spending officers; they, for instance, often arranged contracts for public building, roads, etc., in which the state was the paying, not the receiving, party. In these matters, however, they had less discretion, being only allowed to draw from the aerarium up to a definite amount placed to their credit by order of the consuls and senate. They were thus in this respects in a position similar to that of other magistrates who had similar credits opened for them for their expenses, for instance in the payment of their subordinates.
The registers of the censors (tabulae), showing as they did a large proportion of the income which the state might expect, were the nearest thing which the Romans had to a budget and were no doubt largely used in estimating the amount of money which might be spent, but they were necessarily incomplete, for censors were only elected every five years and held office for not longer than eighteen months, and in the intervals business which could not wait was transacted by the other magistrates. Also extraordinary income, such as that derived from booty, would find no place in the censorial accounts.
. The Quaestors
The aerarium itself was under the supervision of the quaestors. Originally there was but this one treasury administered by the two quaestors as assistants to the consuls, the consuls having control of the treasury as of all other departments of state. In 421, however, the number of quaestors was raised to four. Two (quaestores urbani) were to remain in charge of the aerarium at Rome and each consul was to have one of the others as a separate assistant when he took the field. A separate treasury was then established for him and similar separate treasuries were established later for provincial governors. These, though under the control of the governor, remained in relation with the central treasury at Rome, the provincial quaestors being given money or credits on the central treasury for the expenses of government and being bound to render account on their return. Meanwhile the governor had, however, full discretion as to the use to which he would put moneys which flowed into his treasury. By no means all moneys went through the central treasury.
Besides their duty of keeping the accounts of the aerarium, the two quaestores urbani had other duties, such as sale of property (e.g. slaves and booty) which fell into the hands of the state. They also sometimes made financial statements in the senate.
The key to the understanding of Roman finance lies in the principle that every holder of imperium was bound to delegate the keeping of the account of moneys which came under his control. For the consuls and most pro-magistrates these delegates were provided in the elected quaestors and ex-quaestors, who, like their superiors, usually went to a province after their year of office; but where there was no such delegate provided, it was the duty of the holder of imperium to choose one himself. The object of this rule was clearly that there should be a record of every payment made by order of a magistrate with imperium which would make it possible to call him to account for moneys spent improperly, without limiting his discretion in the spending of them. The urban quaestors had a more independent position than any others because their superiors (the consuls) were constantly away from Rome. This meant that in fact they laid out moneys only on the authorisation of the senate. They were entitled to pay on the command of the consuls alone, but in the later republic even the consuls never gave such orders without previously consulting the senate.
We thus get the position that the quaestors are the people who hold the keys of the treasury; they pay out moneys at a consul's order either to him or to other magistrates, but owing to the convention that the consul must consult the senate, it is the senate which has the real control.
+ Functions in connection with Foreign Affairs
That the declaration of war was a function reserved for the people has already been mentioned, though in this most vital matter the magistrate was of course bound in practice to consult the senate before bringing a proposal before the assembly. It is not so easy to answer the question where, according to the Roman constitution, lay the power of making peace, or, what is in effect the same, the treaty-making power. It is likely enough that the power on binding the Roman state by treaty was originally regarded as inherent in the imperium of the magistrate as the representative of the commonwealth, but in historical times this was no longer true.
Treaties cannot be deemed binding unless the magistrate's act is either authorised beforehand by the community or subsequently ratified. On more than one occasion a deluded enemy learnt, to his cost, that the Romans would refuse to acknowledge the most solemn oath taken on their behalf by a magistrate, and consider their consciences satisfied by delivering him and all who had taken part in the ceremony naked and bound to the people with whom they had contracted.
For purposes of the authorisation or ratification of treaties the community meant the "Senate and People of Rome", the style of the Roman state used particularly for international relationships, in which, be it noticed, the senate comes first. In fact the decision lay from early republican times with the senate, and the ratification of the senate's decision by the people was a formality. Towards the end of the republic it was occasionally omitted, though Cicero could still argue that it was legally necessary. The treaty once authorised was usually concluded by sending a mission consisting of two or three Fetiales, members of the priestly college specially charged with international ritual, who took an oath on behalf of the senate and people.
The concentration of all international matters in the hands of the senate was the natural outcome of its permanence when contrasted with the ever-changing individual magistrates, and one result of this concentration was that a general in the field, once peace was in sight, directed the ambassadors of the other state straight to the senate at Rome before which all but the preliminary negotiations took place. Also, after an enemy had been so completely conquered that there was no question of a treaty, but only of complete surrender (deditio), it was the senate which sent out commissioners to assist the commander in settling the organisation of the conquered territory. This organisation was generally laid down in a lex, a sort of charter, which however did not receive the sanction of the comitia. During the period when provinces were being added to the Roman empire the senate's supremacy was so clearly recognised that its authority was sufficient.
In speaking of the "foreign affairs" of Rome one must of course remember that in the later republic Rome was already supreme in the Mediterranean and indeed over most of the known world, so that there was no international intercourse such as exists to-day between independent states, the only power which could at all measure itself with Rome being the distant kingdom of Parthia. But it must also be remembered that the vast majority of the inhabitants of the lands ruled by Rome were not citizens, but foreigners (peregrini), so that the government of the provinces outside Italy was also in a sense part of "foreign affairs". Here too the senate, as the permanent government, exercised what supervision was exercised at all over the provincial governors. Permanent representation either of subject communities or of independent powers at Rome, such as exists in our modern embassies, was unknown, all business being transacted by delegates appointed for the particular occasion. Roman history records many instances of these and of the impression made on the delegates by the assembled senate, a body which must have seemed to many of them, as it certainly did to one, "as assembly of kings".
+ Functions in connection with Religion
As the great Council of State, the senate was, of necessity, often concerned with matters affecting the state religion, and it is difficult to say that any part of Roman religion was quite independent of the senate. Not only was the first sitting of each year devoted to the presentation of a report by the consuls on sacred matters, but at every meeting religious affairs took precedence of all others.
Tome some extent the most important sacred "colleges", such as the pontiffs and augurs, whose members would generally, though by no means necessarily, be members of the senate, acted as standing committees for matters falling within their province; but these bodies possessed little initiative, and senatorial authority was needed to carry out their proposals. Thus the senate might order ceremonies of purification to be undertaken if the priestly college announced the appearance of some "prodigy" which was taken as indicating divine wrath; it might also order the consultation of the Sibylline books, a matter sometimes of very great political importance. The senate's approval was of course necessary, on general principles, if money was to be spent on any religious ceremonies or festivals out of the ordinary course of events, and it could decree extraordinary festivals, a power which was sometimes used for the purpose of obstructing undesirable public activities. The reception of a new deity into the public worship of Rome, though strictly perhaps a matter for the people, was generally decreed by senate, sometimes as a result of consulting the Sibylline books.
- Procedure
To understand the procedure of the senate it is necessary to remember throughout that the senate is a council whose business it is to give advice to the magistrate, and that it has no independent executive authority of its own. This appears first from the fact the senate can only meet when summoned by a magistrate, originally only a magistrate of the populus with imperium, who consults it previously to acting himself. In the later republic however, owing probably to the growth of the legislative power of the concilium plebis, and the consequent necessity that its presidents should be able to consult the senate before proposing plebiscita, the tribunes obtained the right of convening the magistrate's council. This multiplication of possible conveners of the senate is important, for it meant that any considerable section of opinion could normally secure the holding of a meeting in order to express its views even if all the magistrates with imperium were desirous of preventing such expression. In this way, as well as by the use of their veto in accordance with the senate's wishes, the tribunes became, in the later republic, an important instrument of senatorial rule.
As the senate could only be summoned by a magistrate, so it could only business put before it by a magistrate; there were no "private members bills", though as we shall see it was possible for the motion on which the House voted to be framed by a non-magisterial member.
The normal conveners were the consuls, but once the senate before the House. The consul's business comes first, then the praetor's and then the tribune's. The proceedings on each question began with a statement by the magistrate who brought forward the business, and it was also permissible for any magistrate to speak, without invitation, at any moment during the debate. After the opening statement the House might proceed immediately to a vote, but more usually a debate followed. In the form of debate, however, the theory of consultation by the magistrate appears again clearly. It was not for any member wishing to speak to "catch the Speaker's eye", it was for the presiding magistrate to call upon the member to deliver his opinion (e.g. Marce Tulli, quid censes?). In this duty, however, the magistrate was more or less constrained by custom to follow a prescribed order of seniority. When the censorship was still a living force, it had been customary for the censors to choose some particularly force, it had been customary for the censors to choose some particularly distinguished man to head the list of the senate and he, as princeps senatus, would always be asked first. After Sulla's reforms had reduced the importance of the censorship this was no longer done, and the president could choose any person of consular rank (i.e. an ex-consul) to speak first. After the consulars came the praetorians, then the ex-aediles, the ex-tribunes and finally the ex-quaestors. When asked his opinion, the senator need not make a speech, he might simply express his agreement with the view already states by some previous speaker, and it was also possible for him to make such agreement clear before he was asked by moving and taking his seat near the person whom he supported. On the other hand, when once a senator was on his feet the presiding magistrate had no power to restrict him to relevant matters; he could express his opinion on anything he considered of public importance. Nor was there any time limit to speeches except that the sitting had to be suspended at sunset, and obstruction by interminable oratory was by no means unknown.
When the debate was over it was for the presiding magistrate to choose the order in which the opinions expressed by members should be put to the vote, and the voting took place by those in favour moving to one side of the House, those against to the other. If one motion on a subject was passed, the remainder were automatically dropped.
Once passed, a motion became a senatus consultum provided no tribune or other magistrate with the right of intercessio vetoed it. It was open to veto because, in strict theory of law, it was only advice by the senate to the magistrate who had elicited it and took its binding force from his authority, and an act of a magistrate was open to veto by a tribune or colleague of equal or higher rank. If vetoed, the motion which the senate had passed became not a senatus consultum, but merely an auctoritas, an expression of opinion which bound nobody but might command the respect of magistrates or others concerned. All resolutions were committed to writing under the supervision of a small committee chosen for each case by the presiding magistrate, and were deposited in the aerarium under the supervision of the quaestors. To prevent forgery the plebeian aediles were, during the time of the struggle between the orders, given a share in the control –we hear of the deposit of senatus consulta under their care in the temple of Ceres– but the exact way in which responsibility was shared in unknown.
As to publication, there was no general system by which the senate's resolutions were made public; sometimes they were announced in a contio, sometimes put up in a public place to be read, and sometimes copies might be sent to interested parties, such as the ambassadors of allied states.
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- The republican constitution
+ The republican constitution: Elements
+ The struggle between the orders
+ The assemblies of the people
+ Characteristics and procedure of roman assemblies
+ The consulate
+ The praetorship
+ The aedileship
+ The quaestorship
+ The censorship
+ The tribunate
+ The dictatorship
+ The minor magistrates
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 27 - 43
