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Articles on Roman Government - XiV - Senate
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SENATUS
SENATUS The senate or council of elders (seniores: comp. the Greek
gerousia) ranked with the kingship, and the assembly of burgesses
among the oldest of Roman institutions, and, like the two latter,
existed also among the kindred communities of Latium (Mommsen,
Staatsr. iii. 836, note 2). Its creation is ascribed by tradition to
Romulus (Liv. i. 8). The members of the senate were senatores. The
collective appellation patres (= chiefs rather than fathers )
belonged of right to the purely patrician senate of the earliest
days, but was transferred to the mixed patricio-plebeian body of
later times (Cicero, Sallust, and Livy, passim), and used as
equivalent to senatus. Similarly the two functions inherited by the
mixed senate from its patrician predecessor, the appointment [p. 621]
of the interrex, and the ratification of votes given by the assembly,
are always spoken of as acts of the patres, though in fact performed
by the senate as a whole. [For this and for Mommsen's rival theory,
that patres in these cases always meant only the patrician members of
the senate, see below.] The fact that the patrician patres had once
formed the whole senate, and that plebeians were not admitted until a
later time, was possibly commemorated by the official term patres
conscripti; the conscripti denoting originally the plebeian members
called up by the magistrate (Festus, p. 254; Liv. ii. 1; Mommsen,
Staatsr. iii. 839; Madvig, Verfass. i. 125. Willems, Le Sénat, i. 37
sqq., maintains on the contrary that the term means simply assembled
fathers. For Mommsen's view of the inferior position of the plebeian
conscripti, see below).
I. Number of the Senate. Roman tradition represents the senate as
consisting originally of 100 members (Liv. i. 8), and as having been
gradually enlarged to 300, though of the steps by which this increase
was effected it gives no consistent account. That 300 remained the
normal number down to the time of Sulla is generally agreed. From 81
B.C. to the dictatorship of Caesar, the nominal maximum was 600.
Under Caesar the numbers rose to 900 (Dio Cass. xliii. 47); under the
triumvirs to over 1000 (Suet. Aug. 35, erant enim super mille: cf.
Mon. Ancyr. 5, 6). Augustus reduced them once more to 600 (Suet. l.
c.; Dio Cass. liv. 13); but there is no proof that either by himself
or his successors was this limit strictly observed. [The advice given
by Maecenas to Augustus not to be particular as to the number of
senators (mêden peri tou plêthous autôn akribologoumenos, Dio Cass.
lii. 19) may be taken, with Mommsen, to represent the practice of
Dio's own time. See Mommsen, Staatsr. iii. 850, note 3.]
II. Admission and expulsion of Senators.--It was a distinctive
peculiarity of the Roman senate, that admission to its ranks was
always given, not by popular election or by cooptation, but by the
act of the magistrate, who has for the time being the authority
legere in senatuzm; and though, as will be shown, his freedom of
choice was under the later Republic so restricted by law as to reduce
the lectio senatus to little more than the formal enrolment of
persons with a legal claim to be enrolled, yet his action continued
to be indispensable (Val. Max. ii. 3, 1), and under the Empire
regained much of its original liberty. The two principles that the
senate was only a council of advice for the magistrate, and that the
magistrate selected his councillors, though modified in practice by
the anxiety of the senate to assert its independence, were never
formally abandoned, and were successfully re-asserted by the Caesars.
Prof. Mommsen indeed has a theory that in pre-historic times the case
was otherwise, and that the original senate, as consisting of the
assembled heads (patres) of the patrician gentes, was independent as
to its composition of the authority of the magistrate (Mommsen,
Staatsr. iii. 844, 854). That the early senate was composed
exclusively of patricians may be safely assumed. It is, moreover,
probable that from this original and close connexion with the gentes
were derived the claims which the patrician senate bequeathed to its
patricio-plebeian successor to be the special guardians of the
auspicia, and of the ancient order of things bound up with them. But
of a strictly representative gentile council there is, as Mommsen
himself confesses, no evidence. The senate as first known to us
appears as a council composed of patricians, but of patricians
selected by the chief magistrate [Liv. i. 8, Romulus centum creat
senatores. Willems' theory (Le Sénat, i. 26) that the senate was
originally a réunion de tous les patres familiarum seniores des
familles patriciennes, and that subsequently le choix royal succéda
au droit d'hérédité, is an equally unfounded and a less plausible
conjecture].
Starting from the earliest system known to us, that under which the
senators were chosen by the magistrate, we have to consider, (1) to
what magistrates this right of choice was successively granted; (2)
by what conditions, legal or customary, the choice was limited; and
(3) the mode in which the lectio senatus was carried out.
(1.) The prerogative of choosing senators belonged at first to the
king. From the king it passed to the consuls, and was during a brief
period granted to their temporary substitutes, the tribuni militum
consulari potestate (Festus, p. 246, ut reges sibi legebant,
sublegebantque quos in consilio publico haberent, ita post exactos
eos consules quoque et tribuni militum consulari potestate
conjunctissimos sibi quosque patriciorum et deinde plebeiorum
legebant ). The date at which it was transferred to the censors is
uncertain. That the change was not made before 387 A.U.C. = 367 B.C.,
the last year in which consular tribunes were appointed, is implied
in the passage quoted above from Festus; and it was not therefore
coeval with the institution of the censorship itself (443 B.C.).
According to the same passage, it was effected by a Lex Ovinia
tribunicia: donec Ovinia tribunicia intercessit qua sanctum est ut
censores ex omni ordine optimum quemque curiatim (sic) in senatum
legerent; and may be assumed to have been, as such, made in the
interest of the plebs. We may consequently place it after the passing
of the Lex Publilia (339 B.C.), which enacted that one censor must be
a plebeian (Liv. viii. 12), since a tribune of the plebs at that
period would not have been likely to entrust the choice of senators
to patrician magistrates. The first recorded lectio senatus by
censors is the famous one in the censorship of Appius Claudius Caecus
(312 B.C.; Liv. ix. 29), so that the Lex Ovinia and the transference
of the lectio senatus to the censors may be assigned to some date
between 339 B.C. and 312 B.C. (Mommsen, Staatsr. ii. 395; Willems, i.
155). With the censors the duty remained down to the close of the
Republic, though on two occasions it was entrusted, as an exceptional
measure, to a dictator. In 216 B.C., after the battle of Cannae, M.
Fabius Buteo was created dictator for this purpose (Liv. xxiii. 22,
qui senatum legeret ); and Sulla exercised the prerogative as
dictator in 81 B.C. (Appian, B.C. i. 100). Both Julius Caesar and the
triumvirs selected senators in virtue of the extraordinary powers
vested in them. Augustus, true to his general policy, made a partial
return to the old practice. Although the censorship proper ceased to
exist, and the creation of senators devolved upon the princeps, the
old [p. 622] connexion between this act and the censorial authority
was not entirely lost sight of. Of the three regular lectiones
senatus held by Augustus (Mon. Ancyr. ii. 1, senatum ter legi ), the
first certainly and the two others probably coincided with the three
census of Roman citizens taken by him in 28 B.C., 8 B.C., and 14 A.D.
Moreover, though under Augustus and his successors both the calling
up into the senate of persons legally qualified by the tenure of the
quaestorship, and the removal from the list of the names of such
senators as had died or proved themselves unworthy, took place
annually and quite independently of any censorial authority, the
direct admission (adlectio) of men freely selected by Caesar was a
power only occasionally exercised in the first century and always in
virtue of the censorial authority, e. g. by Claudius, Vespasian, and
Titus (C. I. L. v. 3117; Orelli, 3659; Mommsen, Staatsr. ii. 877,
iii. 857). Domitian, as censor for life, first exercised it
continuously. From his time onwards the right was possessed and used
by all emperors at their discretion, and without any reference to
censorial authority as a power inherent in the imperial prerogative
(Mommsen, Staatsr. ii. 857).
(2.) The old constitution left the king or consul free to choose as
senators the men he thought best fitted for the post. Full
citizenship, free birth (ingenuitas), and good character were no
doubt always indispensable for a seat in the senate as for a
magistracy; but although custom may have limited the choice of the
king to patricians, there is no proof that he was prohibited by law
from admitting plebeians; and the admission of the latter is
represented in tradition as the free act of the king or consul, not
as the consequence of special legislation. [Liv. ii. 1. Mommsen's
theory, that originally a seat in the senate was an exclusively
patrician privilege (Staatsr. iii. 870), must stand or fall with his
hypothesis mentioned above, of a time when the senate was a
representative council of the gentes. As he confesses himself, no
traces are discoverable of any formal representation in the senate of
the gentes or curiae.] The classical passage in Festus describes the
kings and consuls as choosing freely: conjunctissimos sibi
quosque . . . legebant; so that to be passed over inflicted no
disgrace, praeteriti senatores in opprobrio non erant (Id. ib.). Even
by the Lex Ovinia the censors were directed to choose ex omni ordine
optimum quemque; and Cicero declares (pro Sest. 65, 137) that the
original intention of the constitution was, that the senate should be
open omnium civium industriae ac virtuti. But this early freedom of
choice was gradually restricted. It is probable that the consuls at
the end of their year of office had always a claim to be enrolled as
senators, and we may assume that this privilege was conceded from the
first to praetores. When, owing to the transference of the lectio
senatus to the censors, the revision of the senatorial list took
place not annually but quinquennially, the ex-magistrates who had a
claim to be enrolled were permitted, after the end of their year of
office and while waiting for the next quinquennial lectio, to enter
the senate-house, and though not yet senators to give their
sententiae with the rest. Hence the distinction drawn between
senatores and those quibus in senatu sententiam dicere licet. (Liv.
xxiii. 32; Fest. p. 339; Varro, ap. Gell. iii. 18, qui nondum a
censoribus in senatum lecti, senatores non erant, sed quia honoribus
populi usi erant, in senatum veniebant, et sententiae jus habebant. )
The number of magistracies carrying this privilege increased as time
went on. By 216 B.C. it had evidently been extended to the curule
aedileship, since Livy, in describing the lectio of that exceptional
year, plainly includes the curule aedileship among the offices which
entitled their holders to a seat in the senate (Liv. xxii. 49, unde
in senatum legi deberent, xxiii. 23; and Mommsen, Staatsr. iii. 860,
note 3). On the other hand, the minor magistracies, the plebeian
aedileship, tribunate, and quaestorship gave no such right as yet;
although, as we might expect, former holders of these offices were
selected next to ex-curule magistrates, and before such private
citizens as had distinguished themselves in war: primum in
demortuorum locum legit, qui post L. Aemilium, C. Flaminium censores
curulem magistratum cepissent, necdum in senatum lecti essent . . .
tum legit qui aediles, tribuni plebis, quaestoresve fuerant; tum ex
iis qui magistratus non cepissent, qui spolia ex hoste fixa domi
haberent aut civicam coronam accepissent (Liv. xxiii. 23). By Sulla's
time, if not before, the customary preference hitherto given to ex-
holders of the plebeian aedileship and tribuneship had been exchanged
for a legal claim both to the provisional seat and jus sententiae in
the senate, pending the next censorial lectio, and to formal
enrolment as senators when the time for the lectio arrived. [These
privileges were apparently given to the tribunes by the plebiscitum
Atinium (Gell. xiv. 8, 2, senatores non essent ante Atinium
plebiscitum ), the date of which must fall, according to Mommsen,
between 123 B.C. and 102 B.C. (Mommsen, Staatsr. iii. 862, note 2).
When the plebeian aediles obtained them is uncertain. Mommsen infers,
from their inclusion in the Lex Acilia among those quei in senatu
sient, that they had done so before 122 B.C. (ib. 861, note 2).]
Finally, the same rights were attached to the quaestorship by Sulla
(Tac. Ann. xi. 22, viginti quaestores creati supplendo senatui ). But
these rights had long lost all value for the holders of the higher
offices; since, owing to the gradual establishment of a fixed order
of succession to these posts, a man was presumably already a senator
by the time that he reached even the lowest curule magistracy. After
Sulla, they were of importance only for the quaestorship, which was
then legally established as the first step in the ladder of
promotion. As a rule even the tribunate was taken after the
quaestorship, and its holders were consequently already senators. The
effect of these changes was practically to destroy the magistrate's
freedom of choice. He still created senators, but as a rule the
number of ex-quaestors awaiting his call, and with a legal claim to
be called, must have been sufficient to fill the vacancies, and have
left no room for others. Of senators admitted by free selection of
the magistrate, there is no trace after 70 B.C., until we reach the
dictatorship of Caesar. The votes of the people in Comitia in fact
gave admission to the senate. (Cic. pro Cluent. 56, 153, [p. 623]
judicio populi Romani in amplissimum locum pervenire. ) But the call
of the magistrate was still indispensable; and with the Empire it
became once more a reality. The quaestorship still retained its right
to give a seat; and it is true that the transference of the elections
for the quaestorship to the senate by Tiberius gave that body in
appearance a complete control over its own composition, and
substituted cooptation both for the free choice of the magistrate and
for the votes of the people. But it was only in appearance; for,
apart from the influence which his control of the quaestorian
elections gave him, the emperor possessed and exercised the old right
of direct admission, now known as adlectio, possibly to distinguish
it from the old periodic lectiones of republican times (Mommsen,
Staatsr. ii. 877, note). This right, used occasionally (see above) by
the earlier emperors, was from the reign of Nerva onwards constantly
exercised. The person so admitted was assigned a definite place on
the roll, usually inter tribunicios, occasionally inter praetorios,
and in the 3rd century even inter consulares; this titular rank
counting as equivalent to the actual tenure of the office itself. The
increasing frequency of these adlectiones indicates the use of the
method as a means of strengthening the emperor's hold over the
senate, and of promoting his friends and protégés (Mommsen, Staatsr.
ii. 877 sqq.; Vita Pert. 6, cum Commodus adlectionibus innumeris
praetorios miscuisset; Vita Marci, 10, multos ex amicis adlegit ).
No qualification of age or property was originally fixed by law for a
seat in the senate; but from the time when election to the
quaestorship became the normal mode of entry into the senate, the
legal age for this office became practically that for the senate
also. Under the later Republic it was consequently thirty; from the
time of Augustus onwards, twenty-five (Dio Cass. lii. 20; QUAESTOR).
A property qualification was first introduced by Augustus, who fixed
it at one million sesterces (Dio Cass. liv. 17; Suet. Aug. 41; Tac.
Ann. i. 75, ii. 37). Under Trajan, all candidates for office, and
therefore for a seat in the senate, were compelled to invest a third
of their property in Italian land (Plin. Epp. vi. 19). This
proportion was reduced to a fourth by M. Aurelius (Vit. 11).
It should lastly be mentioned that in the early days of the Empire
the Roman franchise was given to Gauls (Tac. Ann. xi. 23), and
possibly to other provincials, without the right of standing for
office in Rome (jus honorum; and to such men, therefore, unless
directly admitted by the emperor, the senate-house was closed. But of
this special disability no trace is found after the reign of Claudius.
With the right of creating senators was closely connected that of
removing them (loco movere), or omitting them from the revised list
(praeterire). Of the mode in which it was exercised by the kings and
consuls we know nothing beyond the statement in Festus, that,
inasmuch as the magistrate then drew up the list as he chose, no
stigma attached to those whose names were left out (Festus, p. 246:
see above). It is easy to understand that the senate would resent
being so completely at the magistrate's mercy; and the Lex Ovinia,
carried as it was when the senate was slowly establishing its
ascendancy (339-312 B.C.), seems to have given greater security to
the senator's tenure of his seat. By transferring the revision of the
list to the censors, it substituted a quinquennial for an annual
revision; and though the removal or omission of a name henceforward
inflicted disgrace, this was probably due in part to the fact that
the censors, possibly under a clause of the law, were obliged not
only to be agreed in doing so (App. i. 28; Liv. xl. 51; Cic. pro
Cluent. 43, 122), but to state in writing their reasons for
inflicting the penalty (Ascon. in tog. Cand. p. 84; Liv. xxxix. 42,
adscriberent notas ). The power was no doubt abused more than once
for party or personal purposes, but in the main the evidence points
to the conclusion that the arrangement gave a senator fixity of
tenure, unless he were guilty of some act, or had incurred some
public disgrace, which by law or custom disqualified him for sitting
in the senate (e. g. deprivation of his office for misconduct, loss
of civic rights, conviction in certain cases in a court of justice,
gross immorality, extravagance, &c.). After 70 B.C., when the censors
expelled a number of the unworthy members placed on the list possibly
by Sulla, the power of expulsion or omission remained in abeyance
(Sull., Cat. 23, gives an instance, belonging to 70 B.C.), though
Cicero in the Laws advocates its revival ( probrum in senatu ne
relinquunto, de Legg. iii. 3, 7). Under the Empire it came again into
exercise. The thorough purgings of the overgrown senate by Augustus
in 29-28 B.C., and again in 18 B.C., were no doubt exceptional (Suet.
Aug. 35; Dio Cass. lii. 42, liv. 12), as was that carried out by
Vespasian after the civil wars of 69 A.D. (Suet. Vesp. 9, summotis
indignissimis ). But alike at the periodic lectiones held by
Claudius, Vespasian, and Titus as censors, and at the yearly revision
of the senatorial list, not only were the names removed of those who
had vacated their seats by death, by loss of the necessary property
qualification (unless the loss, as frequently happened, was made good
by the emperor: Tac. Ann. i. 75, ii. 37, xiii. 34; Suet. Nero, 10),
or by condemnation in a court of law; but those were also expelled
who for one. reason or another were held by the emperor to be
unworthy (Ann. ii. 48, prodigos et ob flagitia egentes; iv. 42, quod
in acta d. Augusti non juraverat; xi. 25, famosos; Suet. Domit. 8,
quod gesticulandi saltandique studio tenleretur: the alternative of
voluntary, withdrawal was sometimes given, Ann. ii. 48). This power
of removal, exercised as it was with increasing freedom and even
arbitrariness as time went on, combined with the more frequent use of
the right of adlectio completely to destroy that practical
independence of magisterial control which the republican senate had
gradually won for itself. The senate under the Principate became
again what it must have been in early days--a body of councillors,
largely selected by the chief magistrate at his discretion, and
retaining their seats at his good pleasure.
(3.) The mode in which the lectio or revision of the list was carried
out has next to be described. Our knowledge of this commences with
the period when the revision of the senate was in the hands of the
censors, i. e. at the earliest after 339 B.C. Although the lectio
senatus was not apparently an integral part of the census, like [p.
624] the recognitio equitnm (Mommsen, Staatsr. ii. 396, and so
Willems), it seems to have immediately preceded it (Liv. xxiv. 18;
xxvii. 11, &c.). It was conducted usually by both censors jointly
(Liv. xxxii. 7, xl. 50; Willems, i. 241), though on one occasion at
least it was decided by lot which of the two should undertake the
work (Liv. xxvii. 11, sors legendi ). The first point, down to 81
B.C., was to select the senator whose name should stand at the head
of the list as princeps senatus and enjoy the privilege of giving his
sententia first. This honour belonged by ancient custom to the oldest
patrician censorius (Liv. l. c.; Mommsen, Staatsr. iii. 970). After
209 B.C. any patrician censorius might be chosen irrespective of
seniority. From the time of Sulla onwards, it is not clear that any
princeps senatus in the old sense was appointed: the list in the
Ciceronian age was possibly headed by the senior consular, and at any
rate the post, if it survived at all, must have been deprived of most
of its importance by the change made in the order of taking the
sententiae, which took away from the princeps the privilege of being
asked first (Varro, ap. Gell. xiv. 7; Willems, i. 114, maintains not
only that principes senatus existed after Sulla, but that they were
no longer necessarily patricians. Indeed, the three whose names he
gives--Q. Lutatius Catulus, P. Servilius Vatia, and Cicero--were all
plebeians. But his arguments are not conclusive). Under the Empire,
the emperors, following the example of Augustus (Mon. Anc. Gk. 4, 2,
prôton axiômatos topon tês sunklêtou), placed their own names at the
head of the list, though only in the case of Pertinax (Dio Cass.
lxxiii. 4) was the old title princeps senatus revived. The princeps
senatus chosen, the old list of the senate was gone through, the
names of deceased members or of those legally disqualified struck
out, those who had risen to higher office in the interval placed in
their proper position; and finally, any whom the censors judged
unfit, struck off the roll. the lectio of 216 B.C. there were no such
erasions, but this was exceptional (Liv. xxiii. 23).] The vacancies
were then filled up according to the order described above, though
here again the censors might pass over one or more of the legally
qualified claimants. In the completed list the senators were arranged
according to their official rank, from the dictatorii and censorii
down to the quaestorii; those, if there were any, who had held no
office, being no doubt placed last. Down to the time of Sulla, the
patricians in each magisterial category took precedence of the
plebeians; in the post-Sullan period, the members of each category
were arranged simply by official seniority (Mommsen, Staatsr. iii.
968; Willems, i. 259). Under the Empire a senator might obtain
precedence by the grant of the jus trium liberorum, and earlier still
by the successful prosecution in a public court of a senator higher
in rank than himself, whose place he took (Mommsen, l. c. 971; Dio
Cass. xxxvi. 40). Those persons directly admitted (adlecti) by the
emperor, among the praetorii or tribunicii, were properly placed
below the genuine ex-praetors or ex-tribunes (Vit. Pertin. 6). The
list when made up was in Republican times read aloud from the rostra
(Liv. xxiii. 23); under the Empire it was regularly published (Dio
Cass. lv. 3). It held good until the next revision, i. e. under the
Republic, until the next censors came into office. Under the Empire
the revision was annual (Dio Cass. l. c.). The official name for the
list, album senatorium, first occurs in Tacitus (Ann. iv. 42).
III. Composition and Character of the Senate.--The first important
change in the composition of the senate must have been effected by
the admission of plebeians--a measure ascribed by tradition to
Brutus, and certainly anterior to their admission to the consulship.
With the opening of the magistracies to plebeians, and the additions
made to the list of magistracies giving a legal claim to a seat, the
plebeian element in the senate grew in strength; and at the close of
the Punic wars largely outnumbered the patrician. (See the
calculations made by Willems, i. pp. 285 sqq.) The question then
arises, how far any distinction was maintained as regards rights and
privileges between these two elements? That the interrex was
necessarily, and the princeps senatus customarily, a patrician, is
certain (see above and art. INTERREX), as also that on the roll
patrician senators took precedence of plebeian senators of equal
official rank. But on two points there is a division of opinion: (1)
Were the functions of appointing the interrex (prodere interregem)
and of ratifying votes of the assembly (patrum auctoritas) reserved
exclusively for patrician senators? (2) Were plebeian senators at any
time without the right sententiam dicere? The first question is
answered in the affirmative by Mommsen (Röm. Forschungen, i. 218;
Staatsr. iii. 871) and Madvig (Verfass. i. 233, 496); in the negative
by Willems (ii. 1 and 33. See also INTERREX). The difficulty. in the
way of a decision is increased by the ambiguous sense in which the
term patres is used by ancient writers, and by the fact that while
the appointment of interreges had become extremely rare during the
period to which our best authorities (Cicero, Livy) belong, the
patrum auctoritas had long before that time been reduced to a
meaningless form (by the Lex Publilia, 339 B.C.). The most probable
view on the whole seems to be that, while both acts belonged
originally to the senate as a purely patrician body, they were in
later times performed by the patricio-plebeian senate as a whole.
[Cf. the extension of the term patres to cover the whole senate, and
the retention of the phrase patricii magistratus for the curule
offices long after these had been opened to plebeians (Cic. ad Brut.
i. 5). It is only in connexion with the three earliest interregna
under the Republic that Livy speaks of patricii (iii. 40, iv. 7, iv.
43: 421 B.C.). On later occasions he speaks always of patres, as does
Cicero throughout The patrum auctoritas is never expressly connected
with the patricii. For a full discussion, see Willems, l. c., and
INTERREX] The second question admits of a more confident answer. It
is agreed on all hands that in post-Sullan times no distinction is
traceable between patricians and plebeians as regards the right
sententiam dicere, and that the term pedarii had no legal value, but
merely denoted the lower ranks of senators (i. e. in fact the non-
curules), whose names, from want of time, were rarely reached in
taking the sententiae, and who were therefore, as a rule, obliged
pedibus ire in sententiam, [p. 625] i.e. to cross to one side or the
other of the senate-house. [Gell. iii. 18, qui in alienam sententiam
pedibus irent. The explanation of the term quoted in the same passage
from Gavius Bassus (1st century A.D.), Senatores qui magistratum
curulem nondum cepissent pedibus itavisse in curiam, though in fact
non-curules and pedarii coincide, is a bad guess, which, strangely
enough, Willems accepts (op. cit. i. 137). The confusion which
follows between the pedarii and the ex-curule magistrates nondum a
censoribus lecti is probably due to Gellius himself. The latter class
were not senators, but had the jus sententiae dicendae; the pedarii
were senators, but in practice were unable sententiam dicere. The
confusion is repeated in Lewis and Shortt's Latin Dict. The sense of
inferiority associated with the pedarii in the senate sufficiently
explains the equites pedarii of Varro (=common or inferior equites).]
But Mommsen, while agreeing that in the Ciceronian age pedarius was
merely a conventional epithet describing the actual but not the legal
position of the lower senators, holds that in earlier times the term
had a statutable meaning, and denoted plebeian senators directly
admitted by consuls or censors, as distinct from those qualified by
office --a class which ceased to exist after 81 B.C. These plebeian
senators were, he thinks, legally incapable of delivering sententiae,
and only allowed to vote (pedibus ire). The objections to this theory
are: (1) That no such distinction can be drawn between the right
sententiam dicere and the right to vote. For the Roman senator, the
sententia and the vote were the same thing, though the sententia
might be given in different ways, of which the pedibus ire was one
[see below under Procedure]. (2) That though there were certainly at
one time men in the senate with the jus sententiae who were not
senators, there is no evidence of the existence at any time of
senators without this right. (3) There is no proof that there was
ever a legally distinct class of pedarii, or that the term had ever
any other meaning than that which it bore in the Ciceronian age.
The admission of plebeians has been assigned to the early days of the
Republic; the period from the Lex Ovinia to the dictatorship of Sulla
witnessed another change which stood in close connexion with the
growing ascendancy of the senate in the political system. The class
of senators freely chosen by the magistrate as distinct from those
whom election to office had given a legal claim on his call,
gradually disappeared (Cic. de Legg. iii. 1. 2, neminem in summum
locum nisi per populum venire ), and the senate came to be composed
entirely of actual and ex-officials, to the exclusion of lay
interests and opinions--an exclusiveness intensified by the extent to
which from 200 B.C. onwards the official class was recruited from a
single section of Roman society, that of the nobiles. In Cicero's day
the only working classification of senators was classification by
official rank.
Further changes followed under the Empire. The class of those who,
while awaiting the next lectio, were permitted to sit in the senate
and give sententiae (see above), must have ceased to exist, when the
yearly revision enabled the emperor to call them up immediately on
the expiry of their year of office. On the other hand, though the
official classification continued, and even those directly adlecti by
Caesar were placed in one official category or another, and though
the majority of senators as a rule entered by the old official door,
the quaestorship, the increasing number of the adlecti unquestionably
served not only to strengthen the emperor's control over the senate,
but to widen the area from which its members were drawn. The effect
of Vespasian's admission of numerous Italians and provincials is
specially noticed by Tacitus (Ann. iii. 55, novi homines e municipiis
et coloniis atque etiam provinciis--domesticam parsimoniam
intulerunt. Senators from the eastern provinces are very rare before
the 2nd century). But while in this way the senate became in its
composition more representative of the whole Empire, a narrowing
effect was exercised by the tendency to confine the senatorial
dignity to a particular class, by making it hereditary. The way for
this latter change was prepared in the last century of the Republic.
In the time of Cicero, the male members of the great families passed
into the senate through the quaestorship, almost as a matter of
course. The son of a senator was expected and as a rule did thus
qualify himself for senatorial rank; and Cicero contrasts the
senatorial and official career proper to young nobles, with the
quieter and less ambitious course marked out by custom for members of
the equestrian order (Cic. pro Cluent. 56, 153). But as yet the son
of a senator had no legal claim to be himself a senator, nor did he
as such enjoy any legal distinctions or privileges. Even the phrase
ordo senatorius is usually limited in meaning to the actual senate
(Mommsen, Staatsr. iii. 459). Julius, it is true, extended the
restriction on foreign travel from senators to their sons (Suet. Jul.
42); but from Augustus dates the first attempt to make the senatorial
dignity formally hereditary, and to give the ordo senatorius, as
distinct from the senate, a legal existence. According to his
regulations, the sons of senators were authorised to assume the broad
stripe (latus clavus) on the assumption of the toga virilis, and to
attend meetings of the senate (a revival of an ancient custom, Gell.
i. 23). They entered the army as tribuni militum or praefecti alarum,
and were distinguished from other young officers as laticlavii (Suet.
Aug. 38, liberis senatorum, quo celerius reipublicae assuescerent,
protinus a virili toga, latum clavum induere et curiae interesse
permisit, militiamque auspicantibus non tribunatum modo legionum, sed
et praefecturas alarum dedit . . . binos plerumque laticlavios
praeposuit singulis alis. The ordinary trib. mil. were angusticlavii,
Suet. Otho, 10). From military service they passed on to the
quaestorship and a seat in the senate. That under the earlier
emperors this career was morally incumbent both on senators' sons and
on other young men, to whom the emperor had granted the latus clavus,
seems certain (they are described as honores petituri: Plin. Ep.
viii. 14; Dio Cass. lix. 10, epi têi tês boulês elpidi), but there is
no proof that in the 1st century A.D. it was legally necessary. [We
hear of several cases in which a man either declines to assume the
latus clavus, or discards [p. 626] it after a time. Suet. Vesp. 2,
latum clavum din aversatus (Vespasian); Tac. Ann. xvi. 17, Mela
petitione honorum abstinuerat; Hist. ii. 86, prima juventa senatorium
ordinem exuerat; Ovid, Trist. iv. 10, 35. Claudius, however, as
censor took a strict view of the obligation (Suet. Claud. 24,
senatoriam dignitatem recusantibus equestrem quoque ademit. Augustus,
at the lectio, in B.C. 13, compelled qualified persons under 35
bouleusai (Dio Cass. liv. 26).] A further illustration of the same
policy is the enactment due to Augustus prohibiting both senators and
their sons from marriage with libertinae (Lex Papia Poppaea, Dig. 23,
2, 23). The development of the policy by the emperors of the 2nd
century cannot be traced in detail. At the close of that century,
however, we find the two orders, senatorial and equestrian, clearly
and sharply distinguished. Each has its own privileges. The careers
appropriate to the members of each order are different, and the
passage from one to the other difficult and rarely made. [EQUITES;
PRINCIPATUS; PROCURATOR.] Suetonius already contrasts senatoria et
equestria officia, Galb. 15; cf. Vita Commodi, 4, per laticlavi
honorem a praefecturae (sc. praetorio, an equestrian office)
administratione summovit. By the lawyers of the early part of the 3rd
century senatorial rank is treated as strictly hereditary. Not only
the sons, but the grandsons of senators are born into the senatorial
order, and cannot escape either the honours or the burdens attached
to the dignitas senatoria. Neither posthumous birth, nor adoption
into a family of lower rank, affects their position (Dig. 7, 35, 9,
7). As Mommsen has well said (Staatsr. iii. 467), the senatorial
order took the place as a hereditary nobility of the nobiles of the
later Republic, as they had in their turn superseded the patriciate.
[For the distinctive privileges and liabilities of the senatorial
order as thus constituted, see the next section;--for its general
position, cf. Mommsen, Staatsr. ii. 865, iii. 466; Madvig, Verf. i.
123 sqq.; Friedländer, Sittengesch. i. 197 sqq.]
IV. Insignia, Privileges, &c.--In Republican times the senator bore
no distinctive title, for senator Romanus was never like eques
Romanus in official use. The title of courtesy clarissimus, though
not unfrequently applied to senators at an early date, was first
formally assigned to them in the 2nd century A.D. (Mommsen, Staatsr.
iii. 565), and then or soon afterwards extended not only to their
sons, but to their wives and daughters. The outward insignia of the
senator were always the broad purple stripe on the tunic (latus
clavus) and the red sandals (calcei) with the crescent-shaped buckle
(luna), and the leathern thongs wound round the leg (lora). The
former of these insignia was possibly not older than the Gracchan
period (sero, Plin. H. N. xxxiii. § 29); the latter were originally
the distinctive mark of the patrician. Under the Empire the latus
clavus was assumed by a senator's son on reaching manhood; while the
red sandals were worn even in childhood (Stat. Silv. v. 2, 28).
Separate seats in the theatre were first assigned to senators in 194
B.C. (Liv. xxxiv. 44), and at the shows in the circus by Claudius
(Suet. Claud. 21). A variety of fresh distinctions were conceded as
the senatorial order under the Empire increasingly assumed the
character of a hereditary peerage, e. g. the right of entrée to the
imperial presence (Dio Cass. lvii. 11), and of banquets at the public
cost (Suet. Aug. 35), the use of covered carriages by their wives
(Dio Cass. lvii. 15), of silver plating upon their own vehicles (Vit.
Sev. Alex. 43), and of running footmen (cursores, Vit. Aurel. 49). In
the 3rd century A.D., and probably earlier still, they were exempt
from all burdens, though still eligible for honores in their own
municipia (Dig. 50, 1, 23, municeps esse desinit senatoriam adeptus
dignitatem, quantum ad munera: quantum vero ad honorem, retinere
creditur originem; cf. the omission in inscriptions of senators of
their place of domicile; see Mommsen, Staatsr. iii. 2, 887, note 1).
Though subject, like other citizens, to the ordinary law, they were
outside the jurisdiction of municipal authorities. From Hadrian dated
the custom for the emperor to summon only senatorial assessors to sit
with him in judgment on a senator (Vit. Hadr. 8), a practice revived
by Severus Alexander (Vit. 21, ne quis non senator de Romano senatore
judicaret ). But the increased outward dignity of their position
under the Empire brought with it not only increased risk under the
worse emperors, but increased liabilities and restrictions. Their
exclusion from trade and from taking state contracts, as also their
liability and that of their sons to prosecution under the leges de
repetundis, date from republican times (Lex Claudia, Liv. xxi. 63:
cf. Dig. 50, 5; Lex Acilia de pec. repet. 2; Bruns, Fontes jur. Rom.
54; Cic. pro Cluent. 55, 150). In addition, Severus Alexander forbade
them to lend money except at a low rate of interest (Vit. 26). The
prohibition issued in Tiberius' reign against intercourse with stage-
buffoons (Ann. i. 77) was, like that against marriage with
libertinae, intended to preserve the dignity of the order. But
Claudius's edict forbidding praetorian guardsmen to attend the
morning levees of senators (Suet. Claud. 25) was no doubt provoked by
the same jealousy of senatorial interference with the army, which
finally led to their exclusion from military commands and from the
camps by Gallienus (Victor. Caes. 33). The separate taxation of
senators did not exist as a system before Diocletian (Mommsen,
Staatsr. iii. 2, 900 f.). The costly obligation of providing games
was a magisterial rather than a senatorial burden. [LUDI; PRAETOR;
QUAESTOR. For the privilege originally enjoyed by senators of voting
in the equitum centuriae, and for their duty of serving as judices in
the quaestiones perpetuae, see COMITIA; JUDEX; QUAESTIO.]
V. Procedure.--The right to hold a meeting of the senate (senatum
habere), to consult it (consulere, referre, relationem facere), and
to carry a decree (senatusconsultum facere) belonged in the
Ciceronian age to consuls, praetors, and tribunes of the plebs; but
if all were present in Rome together, they could only exercise it in
the above order of precedence. The right no doubt attached to the
consulship and praetorship from the moment of their establishment. It
was acquired by the tribunate at some period previous to the
plebiscitum Atinium (? before 133 B.C.). The right was also given to
the dictator, interrex, [p. 627] and praefectus urbi. [See the
classical passage, Gell. xiv. 7, 8, Primum ibi ponit (Varro) per quos
more majorum senatus haberi soleret, eosque nominat, dictatorem,
consules, praetores, tribunos plebi, interregem, praefectum
urbi . . . tribunis plebi senatus habendi jus erat quamquam senatores
non essent ante Atinium plebiscitum. ] Any one of these magistrates
could be prevented from exercising the right by the interference of a
colleague, or of a superior, or of a tribune. [INTERCESSIO;
TRIBUNUS.] In the earlier times, when the consuls were frequently
absent from Rome in the field, the duty of convening the senate
constantly developed upon the praetor urbanus (Liv. xxii. 7; xxvi.
21; xlii. 8, &c.). In the Ciceronian age, it is regularly performed
by the consuls (Cic. ad Fam. xii. 2. 8; CONSUL). Augustus in 23 B.C.
was specially empowered to hold a senate as often as he would, even
when not consul (Dio Cass. liv. 3), and the power was continued to
his successors (Lex de Imp. Vesp. 2, utique ei senatum habere . . . .
liceat, ita uti licuit divo Augusto, &c. Tiberius before he was
formally invested with this power convened the senate tribuniciae
potestatis praescriptione sub Augusto acceptae, Tac. Ann. i. 7). But
even under the emperors it was usually the consuls who convened the
senate and presided at its meetings (Plin. Epp. ii. 11, princeps
praesidebat erat enim consul; cf. Id. Paneg. 76).
The magistrate who convened the senate determined also the place of
meeting, subject, however, to certain conditions. A lawful senate
could only be held in a templum, and, except in special cases, within
the pomerium (Gell. xiv. 7, in loco per augurem constituto, quod
templum appellaretur: see TEMPLUM). Among the ordinary meeting-places
of the senate in republican times were the Curia Hostilia and the
temples of Concord, of Castor, of Jupiter Stator, and of Tellus. The
senate could be convened outside the pomerium, but intra milia
passuum, if either embassies from states not in alliance with Rome or
a pro-magistrate [PROCONSUL; PROPRAETOR] were to take part in the
proceedings (Mommsen, Staatsr. iii., 930. As meeting-places outside
the pomerium, the temples of Apollo and of Bellona are mentioned:
Liv. xxxiv. 43; Cic. ad Fam. viii. 4; Plut. Sull. 30).
The senate could not be summoned to meet before sunrise or sit after
sunset (Gell. xiv. 7). But under the Republic there were no fixed
days for its meetings any more than for those of the Comitia.
Augustus first enacted that there should be two regular meetings held
in each month (Suet. Aug. 35, ne plus quam bis in mense legitimus
senatus ageretur Kal. et Idibus, Dio Cass. lv. 3). Nor is it clear
that in early times there were any days on which a senate could not
be lawfully held. But by a Lex Pupia, the date of which Mommsen fixes
at about 154 B.C., the magistrates were apparently forbidden to hold
a senate upon any day actually appointed for Comitia, or possibly
upon any of the days on which Comitia might legally be held (dies
comitiales, Cic. ad Fam. i. 4, senatus haberi ante Kal. Febr. per
legem Pupiam . . . non potest; Id. ad Q. Fr. ii. 2, consecuti sunt
dies comitiales per quos senatus haberi non potest: cf ad Fam. viii.
8; Mommsen, Staatsr. iii. 921-923).
The usual mode of summoning the senate (cogere senatum) was by a
proclamation issued by one or both the consuls, naming the date and
place of meeting, and occasionally stating the special business to be
considered (Liv. xxviii. 9, praemisso edicto ut triduo post senatus
ad aedem Bellonae adesset; Suet. Caes. 28, edicto praefatus se summa
de republica relaturlum; Cic. ad Fam. xi. 6, quam edixissent . . .
senatus adesset ). The procedure was the same if the magistrate
concerned was a praetor or tribune. The magistrate was empowered, if
necessary, to compel the attendance of senators by taking pledges for
their attendance, or by fining those who failed to appear (Gell. xiv,
7; Cic. de Legg. iii. 4, Phil. i. 12); but this power was, it would
seem, sparingly exercised under the later Republic, and the increased
numbers of the senate after 81 B.C., added to the fact that no quorum
was required by law, gave little occasion for its use. Under the
Empire it was otherwise. Augustus found it necessary not only to fix
a quorum (Dio Cass. lv. 3: see below), but to increase the penalties
for non-attendance (Dio Cass. liv. 18), and Claudius did the same
(Dio Cass. lx. 11: cf. Tac. Ann. xvi. 27, patres arguebat(Nero) quod
publica munia desererent ).
On the assembling of the senate, usually in the early morning, the
senators took their seats, as they chose, upon the benches
(subsellia) ranged in rows to the right and left of the curule chairs
of the presiding magistrates; the latter being so placed as to face
the door of the house. [Mommsen, Staatsr. iii. 932, has shown that
under the Republic neither the ordinary senators nor, as Willems (ii.
173) maintains, the magistrates generally, had any special or fixed
seats.] Under the Empire the emperor's chair was placed between those
of the consuls (this seat was first assigned to Augustus in 19 B.C.:
Dio Cass. liv. 10); and separate seats were assigned to the
praetors., tribunes, and possibly to the other magistrates (Mommsen,
op. cit. p. 934). The proceedings opened with a sacrifice, followed
by the inspection of the victim's entrails (Gell. xiv. 7; Mommsen,
op. cit. p. 935).
The magistrate who summoned the senate also presided at its meetings,
and it is he who, subject to certain customary rules, determines what
business shall be laid before the house and in what order. It was his
duty, in the first place, to communicate to the senate any news of
importance, to read despatches received from officials abroad, and to
introduce provincial or foreign deputations (Caesar, B.C. i. 2; Cic.
ad Fam. x. 1. 2, 3; Liv. xliv. 20, 21). On his demand, or with his
permission, any individual senator might similarly read letters,
communicate information, or make a statement to the house. The same
privilege belonged to praetors and tribunes, as having the right to
consult the senate, even when not actually presiding.
The magistrate might follow up these preliminary communications by
referring one or more of the points raised to the senate for its
opinion, and the senate not unfrequently demanded by acclamation that
such a reference should be made. It rested, however, with the
magistrate to decide whether or not this further step should be taken
(Liv. xxx. 21, conclamatum ex omni parte curiae est, uti referret [p.
628] P. Aelius praetor; ib. xlii. 3, ex omnibus partibus postulabatur
ut consules earn rem ad senatum referrent; Cic. ad Fam. x. 1. 6;
Caes. B.C. i. 1, ut ex litteris ad senatum referretur, impetrari non
potuit ).
The formal consultation of the senate (relatio) was governed by a
variety of customary rules. After, usually, an explanation of the
business in question ( verba facere, Cic. ad Fam. viii. 8; Phil.
viii. 14, &c.), the magistrate asked the senate quid de ea re fieri
placet, without himself submitting a definite proposition (Sall. Cat.
30; Cic. Cat. i. 1. 0, iii. 13). Occasionally the magistrate
indicated his own view (Liv. xxxix. 39, sibi nisi quid aliud eis
videretur in animo esse . . . comitia habere. For instances of a
definite proposition, see Suet. Caes. 28, rettulit ad senatum ut ei
succederetur; Cic. Phil. i. 1, scriptum senatusconsultum quod fieri
vellet attulit; cf. Cic. Phil. x. 1. 7). It is significant of the
more dependent position of the senate in relation to the emperor that
the latter, when consulting the senate, usually made at the same time
a definite proposal (see below). The reference to the senate might
either be general ( infinite de republica, Gell. xiv. 7; cf. Liv.
xxvi. 10, de summa republica consultatum ) or special ( de singulis
rebus finite, Gell. xiv. 7; Cic. Phil. vii. 1, de Appia Via et de
Moneta ), and the senators might, in giving their sententiae, express
a wish for the separate reference of some particular question (Cic.
Phil. x. 2. 4, de M. Appuleio separatim censeo referendum, ad Fam.
viii. 8, ne quid conjunctim referatur ). Custom again prescribed in
general terms the order in which the business should be taken: de
rebus divinis priusquam humanis ad senatum referendum esse (Gell.
xiv. 7; cf. Liv. xxii. 9, ab diis orsus--tum de bello deque
republica ); but here again the practice at least of the later
Republic allowed a certain weight to the wishes of the senators
themselves, who might either directly demand urgency for a particular
question (Cic. ad Fam. x. 1. 6, flagitare senatus institit . . . ut
referret statim ), or indirectly force the magistrate's hand by
refusing to give opinions upon any matter until the desired point had
been submitted to them (Cic. ad Att. iii. 2. 4, senatum nihil
decernere, antequam de nobis actum esset; in Pison. 13, 29, quum
quacunque de re verbum facere coeperatis aut referre ad senatum,
cunctus ordo reclamabat, ostendebatque, nihil esse vos acturos, nisi
prius de me rettulissetis ). The right of reference (jus referendi,
consulendi senatum, cum patribus agendi) belonged, exclusively of
extraordinary magistrates, to consuls, tribunes of the plebs, and
praetors; the latter, however, do not appear to have exercised it
except in the absence of the consuls. As between consuls and
tribunes, the consul's business took precedence, though it would seem
from Cic. Phil. vii. 1, that if the questions were small ones, the
references of both consuls and tribunes might be put conjointly to
the house ( de Appia Via et de Moneta consul; de Lupercis tribunus
plebis refert ). To the emperors a special right of reference, as of
convening the senate, was granted by statute, in addition to that
which they possessed in virtue of the tribunicia potestas. This
right, granted to Augustus in 23 B.C. on his resignation of the
consulship (Dio Cass. liii. 32), and confirmed to his successors (Lex
Vespas. 2, Bruns, 128), invested him with the power of making the
first relatio (peri henos tinos, Dio Cass. op. cit.) at each meeting
of the senate, and was afterwards extended so as to enable him to
make four and even five relationes before the regular magistrates
took their turn ( jus quartae relationis, Vit. Pert. 5; quintae
relationis, Sev. Alex. 1; cf. Pelham, Journal of Philology, xvii. pp.
41, 42). At first at any rate the emperor, like the consul, made his
relatio in person; or, if unable to do so, communicated it in writing
through the consuls (Tiberius, Dio Cass. lviii, 11; Nero, Suet. Nero,
15). But from the close of the first century onwards the practice,
occasionally adopted by Augustus (Dio Cass. liv. 25) and by Claudius
(Id. lx. 2), of employing the quaestor principis as the emperor's
mouthpiece, became the regular one (QUAESTOR: cf. Digest 1, 13, 1,
quaestores . . . libris principalibus in senatu legendis vacant; ib.
4, quique epistulas eius in senatu legunt ). The relationes of the
emperor thus took the form of written speeches (orationes) or letters
(litterae, epistulae), and are usually referred to as such (Suet.
Tit. 6; Dig. 23, 2, 16, &c.).
The formal introduction of the business was followed, not by a
debate, in the modern sense of the word, but by the taking of the
sententiae (sententias rogare, perrogare) of the individual senators
in order. Just as the senate was in theory only a council of advice
consulted by the magistrate, so the senator's one duty was to give
his opinion (sententiam dicere), and technically in this one act both
speech and vote were included. But, as we shall see, considerations
of convenience, as well as the growing tendency to treat the senate's
expression of opinion as a positive decision, developed in practice a
process of counting votes actually, though not theoretically,
distinct from the taking of sententiae.
The magistrate, in taking the sententiae, was expected to follow a
well-established order of precedence, corresponding in the main to
that observed in the official roll (see above). Down to the time of
Sulla, the first sententia taken was that of the princeps senatus. In
the Ciceronian age the magistrate might select for this honour any
consular, subject only to two restrictions, as (1) he was expected to
adhere to the order adopted by him on his first day of office; (2)
after the consular elections, i. e. during the latter half of the
year, he was bound to give the priority to the consuls-designate. The
other consulares were taken next, usually in order of seniority;
after them the praetorii, aedilicii, &c. [It is possible that in
earlier times, before senatorial ascendancy was well established, the
magistrate's discretion in this respect was wider (Mommsen, Staatsr.
iii. 974). The classical passage on the ordo sententiarum is Varro,
ap. Gell. xiv. 7, singulos autem debere consuli gradatim, incipique a
consulari gradu, ex quo gradu . . . antea primum rogari solitum qui
princeps in senatum lectus esset, tum autem cum haec scriberet . . .
ut is primus rogaretur, quem rogare vellet qui haberet senatum, dum
is tamen ex gradu consulari esset; cf. ib. iv. 10; Suet. Caes. 21,
post novam adfinitatem Pompeium primum rogare sententiam coepit
(Caesar). For the consules designati, comp. Sall. Cat. 50: Silanus
primus sententiam rogatus quod eo [p. 629] tempore consul designatus
erat; and Cic. ad Fam. viii. 4; Tac. Ann. iii. 22.] The right to give
an opinion, jus sententiam dicendae, belonged to all senators,
excepting only the magistrates of the year; the latter being in
theory the consulting and not the consulted parties (Liv. viii. 20;
Willems, ii. 189). It was only when the emperor made a relatio in
virtue of his special powers, that the sententiae of magistrates were
taken (Tac. Ann. iii. 17; Hist. iv. 41). But every magistrate could
at any moment interpose with a speech on the subject in hand.
[Mommsen, Staatsr. iii. 943. The same author holds that in earlier
days plebeians directly admitted to the senate by consuls or censors,
without having held a qualifying magistracy, had no jus sententiae
dicendae (Staatsr. iii. 963), but could merely take part (pedibus
eundo) in the final discessio. Of this, however, there is no
sufficient evidence.] The question was put to each senator in turn in
the simple form die M. Tulli (quid censes) (Liv. i. 32; Cic. ad Att.
vii. 1), but the modes of reply were various. (1) The senator might
rise, discuss the question in a set speech, and close with a formal
statement of his opinion, so worded as to form the basis of a decree
( stantem sententiam dicere, Liv. xxvii. 34; Cic. ad Att. i. 1. 4,
surrexit, ornatissimeque locutus est. For the form of the closing
statement of opinion, comp. Phil. xiv. 29, decerno igitur, &c.; ib.
x. 25, quod consul . . . verba fecit de litteris de ea re ita censeo;
ib. v. 46, ita censeo decernendum ). It was occasionally drafted in
writing beforehand (Phil. iii. 20). This method was that which, in
cases of any importance, consulars and other prominent senators were
expected to adopt (Liv. xxvii. 34). (2) He might, without rising,
express his agreement with some previous sententia, either verbo
(Cic. ad Att. vii. 3, dic M. Tulli: suntoma, Cn. Pompeio adsentior ),
or by a nod, or by holding up his hand ( verbo assentiebatur; Liv.
xxvii. 34; cf. Sall. Cat. 52, sedens assensi; Cic. ad Fam. v. 2). (3)
He might cross over to the side of a senator with whose opinion he
agreed ( pedibus ire in sententiam, Liv. xxvii. 34; Cic. ad Q. Fr.
ii. 1, 3; Vit. Aureliani, 20, interrogati plerique senatores
sententias dixerunt . . . deinde aliis manus porrigentibus, aliis
pedibus in sententias euntibus, plerisque verbo consentientibus ). By
this method, a senator who had already given his sententia at length,
might indicate that he had changed his mind (Sall. Cat. 50,
Silanus . . . primus sententiam rogatus . . . decreverat: isque
postea permotus oratione G. Caesaris pedibus in sententiam Tiberi
Neronis iturum se dixerat ).
In strictness this orderly taking of opinions on business introduced
by a magistrate precluded both the introduction of fresh matter by
those consulted, and also any debate in the modern sense of the word.
But, in the Ciceronian age, custom sanctioned a freedom of speech
really inconsistent with the theory of the procedure. For a senator,
when asked for his opinion on a particular point, to seize the
opportunity to deliver a lengthy oration on some wholly irrelevant
matter, was a privilege thoroughly well recognised and frequently
exercised ( egredi relationem, Gell. iv. 10; Tac. Ann. ii. 38,; Cic.
ad Fam. x. 2. 8, quum tribuni plebis. . .de alia re referrent, totam
rempublicam sum complexus ). It was indeed the only means open to the
senator of forcing upon the attention of the senate subjects which
the magistrates were unwilling formally to bring before it (Cic.
Phil. vii. 1, parvis de rebus consulimur . . . tamen animus aberrat a
sententia, suspensus curis majoribus ). That the presiding magistrate
could not compel a senator to speak to the question is clear, and it
is doubtful how far he was able to limit the duration of his speech.
According to Ateius Capito (Gell. iv. 10), a senator could say,
quicquid vellet . . . et quoad vellet; and several instances are
recorded in which a measure was, as we should say, talked out (Cic.
ad Att. iv. 3, calumnia dicendi tempus exemit; Gell. iv. 10, eximebat
dicendo diem; cf. Cic. ad Att. iv. 2, ad Q. Fr. ii. 1, 3). One
instance only is recorded in which the presiding magistrate exercised
his authority to check this abuse, and then the feeling of the house
was decidedly against him (Caesar's arrest of Cato, Gell. iv. 10). On
another occasion the senate by resolution decided that the speeches
should be brief (Cic. ad Fam. i. 2). The altercationes, which were
not infrequent in the Ciceronian age, were certainly out of order,
but were as certainly tolerated (Mommsen, Staatsr. iii. 947; Willems,
ii. 191).
The theory of the procedure unquestionably implied that the
magistrate took the sense of the house on the matter which he had
laid before them, by asking each senator in turn to give his opinion
(perrogare sententias); and there is no evidence that he could, by
any form of closure, abridge the process (Mommsen, Staatsr. iii. 983,
as against Willems, i. 194). It is also possible that in the early
days, when the senate was still a subordinate and purely consultative
body, the sense of the house as expressed in the course of this
process was taken as sufficient, and that no formal division
(discessio) followed. But when the senate became in fact the
governing council, the business before it increased in amount and
complexity, and the importance of its decisions increased also. These
changes, coupled with the rise in its numbers from 300 to 600,
modified the character of the perrogatio sententiarum, and
necessitated a more exact method of taking a vote, i. e. of
determining where the majority of sententiae lay. (But the voting was
not technically distinct from the giving an opinion; nor is it
conceivable that, as Mommsen holds, there were senators who could
vote but who were legally unable sententiam dicere.) The accounts we
have of the procedure in the senate during the Ciceronian age, make
it clear that sententiae, in the shape of formal proposals explained
and advocated in speeches, were as a rule only given by the highest
category of senators, the consulares and praetorii, and that the rest
contented themselves with a brief assent (verbo), or ranged
themselves behind the speaker they agreed with (pedarii. The cases of
Cato in 63 B.C., who, though only tribunus designatus, gave the
sententia which was ultimately adopted, and of P. Servilius
Isauricus, Cic. ad Att. i. 1. 9, were no doubt exceptional). On the
perrogatio followed, at least in Cicero's time, the pronuntiatio
sententiarum: where only one definite [p. 630] proposal had been
made; or when the sense of the house was clearly in favour of a
particular sententia, the case was simple. But where, as in the
debate on the restoration of Ptolemy Auletes (Cic. ad Fam. i. 1 and
2), several conflicting sententiae had been given, and there was a
real division of opinion, the difficulty was considerable. It rested
with the magistrate who had made the relatio to take the division on
such sententiae, and in such order as he thought best; and he might
decline to put such as seemed to him inexpedient (Willems, ii. 194;
Cic. Phil. xiv. 2. 2), or to be covered, or better expressed by
others (Cic. ad Att. xii. 2. 1, cur ergo in sententiam Catonis, quia
verbis luculentioribus et pluribus rem eandem comprehenderat ). As a
rule, however, the sententiae were put to the vote in the order in
which they had been given. If the first was carried, the rest, if
inconsistent with it, naturally fell to the ground. A single
seenentia might lastly be divided and put as two (Cic. pro Mil. 14,
divisa est sententia; cf. ad Fam. i. 2). The difficulties involved in
the putting a variety of sententiae to the house so as to get a clear
decision are well described by Pliny (Epp. viii. 14, quae distinctio
pugnantium sententiarum quae exsecutio prioribus addentium, &c.). The
sententia once put (pronuntiata), the magistrate took the division by
bidding the ayes cross to the side of the senate-house on which its
author sat, the noes to the other (Plin. l. c., qui haec sentitis in
hanc partem, qui alia omnia in illam partem ite . . . in hanc partem,
id est in earn in qua sedet qui censuit; cf. Cic. ad Fam. i. 2,
frequentes ierunt in alia omnia; Festus, p. 261). He then declared on
which side the majority was ( haec pars major videtur, Senec. de Vit.
beat. 2. There is no evidence of any actual counting of heads, any
more than when the Speaker in the English House of Commons declares
that the ayes have it: Mommsen, Staatsr. iii. 993).
Such was the regular order of procedure. But in certain cases the
perrogatio sententiarum might be dispensed with, and a division taken
at once (senatusconsultum per discessionem facere). This, however,
was only allowable where the business was formal, or where no
difference of opinion existed (Varro, ap. Gell. xiv. 7,
senatusconsultum fieri duobus modis aut per discessionem si
consentiretur, aut si res dubia esset, per singulorum sententias
exquisitas; cf. Cic. Phil. iii. 2. 4).
The republican order of procedure was maintained with comparatively
little change throughout the first three centuries of the Empire (cf.
Plin. Epp. viii. 14; Vit. Aurel. 20); nor can the lex, quae nunc de
senatu habendo observatur (Gell. iv. 10), possibly the work of
Augustus, have effected many alterations of importance. The special
jus referendi granted to the emperor has been mentioned above. He had
also the right as a senator to give his sententia, and to give it
when he would, usually either first or last (Dio Cass. lvii. 7; Tac.
Ann. i. 74. The emperors after Tiberius seem never to have exercised
this right: Mommsen, Staatsr. iii. 977). The claim of the consuls
designate to be asked first disappears early in the second century
A.D. (ib. iii. 976); and lastly, by Augustus, a certain quorum was
fixed as necessary for a valid discessio. (The exact number required
is unknown: ib. iii. 990; Dio Cass. lv. 3; Suet. Aug. 35). In
practice, however, the declining independence of the senate led to a
frequent disregard of the elaborate routine of earlier days. A body
which met to accept submissively an imperial proposal, to pass a
complimentary vote, or decide some trivial point, willingly dispensed
with the routine of the perrogatio, and its place was taken by the
undignified adclamationes [Plin. Epp. <br/><br/>(Message over 64 KB, truncated)
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