The Emperors-General References:-Mommsen, Röm. Staatsrecht, II. p. 745, sqq. Willems, Droit public Romain, p. 421, sqq. Madvig, Verfassung und Verwaltung, p. 521, sqq. Herzog, Geschichte und System, II. p. 608, sqq.

Fincke, De appellationibus Caesarum honorificis, Königsberg, 1867. Willems, Le pouvoir impérial, &c. (Revue de l'instruction publique en Belgique, XXII. p. 251, sqq.). Schöner, Ueber die Titulaturen der röm. Kaiser, Erlangen, 1881.

Tribunicia Potestas-General References:-Zumpt, Studia Romana, p. 248, sqq.; Ueber die Entstehung der tribunicischen Gewalt, Wien, 1859. Dockhorn, De tribuniciae pot. origine, Berolini, 1858. Nissen, Beiträge &c., Strassburg, 1885, p. 220, sqq.

Proconsul. Proconsulare Imperium.-Kromayer, Die rechtliche Begründung des Principats, Marburg, 1888.

Princeps. - Pelham, Princeps or princeps senatus? The Journal of Philol., VIII. p. 323, sqq.

Princeps Iuventutis.-Koch, De principe iuventutis, Lipsiae, 1883.

Deus Divus -Preller, Röm. Mythologie (2 ed.), II. p. 425. Desjardins, Le culte des Divi (Revue de philol., 1879, p. 33, sqq.). Beurlier, Essai sur le culte rendu aux empereurs Rom., Paris, 1892.

Succession to the Throne.-Paillard, Histoire de la transmission du pouvoir imperial à Rome et à Constantinople, Paris, 1875.

CHAPTER VI.

THE SENATE.

We have already, at the end of chapter II. (p. 104 comp. p. 110) given some account of the origin, early history, and numbers of the Senate. We now proceed to describe more minutely the constitution and duties of that body.

2

Manner of Choosing the Senate.-(Lectio Senatus.) Under the regal government the Senate was chosen in the first instance and vacancies were filled up by the king, (legit sublegitque,) of his own free will, without reference to hereditary claims or to the voice of the Curiae.1 After the expulsion of the Tarquins, the power of choosing Senators was at first committed to the Consuls, but after B.C. 443, to the Censors, whose task it was, each Lustrum, to revise the list, (Album Senatorium,) to omit the names of those who had rendered themselves unworthy of remaining members of the supreme council, and to supply the vacancies caused in this manner or by death. Although the power of the Censors in discharging this duty does not seem to have been defined or restricted by any legislative enactment, until the passing of the Lex Ovinia, (the date is uncertain,) in terms of which they were bound to elect upon oath the most deserving, (optimum quemque,) we have no reason to suppose that their proceedings were altogether arbitrary. The powers intrusted to them may, at times, have been abused from the influence of personal or party feelings; but it must, from the commencement, have been regulated by certain principles which gradually became fixed, and which, except in extraordinary cases, they could not have ventured to disregard. What these principles were at the period of the second Punic war is clearly demonstrated by the statement of Livy, (XXIII. 23,) with regard to the proceedings of the Dictator, who was named for the special purpose of filling up the blanks caused by the slaughter at Cannae, for the proceedings described evidently indicate the ordinary rule-Recitato vetere senatu, inde primos in demortuorum locum legit, qui post L. Aemilium et C. Flaminium Censores curulem magistratum cepissent, necdum in Senatum lecti essent; ut quisque eorum primus creatus erat: tum legit, qui aediles, tribuni plebei, quaestoresve fuerant: tum ex iis, qui magistratum non cepissent, qui spolia ex hoste fixa domi haberent, aut civicam coronam accepissent-thus carrying out the rule which he had previously declared that he would follow-ut ordo ordini, non homo homini praelatus videretur.

It is to be observed that all the higher magistrates, from the Quaestor upwards, had, during the period of their office, the right of sitting and speaking in the Senate; but they were not necessarily Senators, unless they had been enrolled

1 Fest. s.v. Praeteriti Senatores, p. 246. Dion Cass. fgmt. Mai. Nov. Coll. IL p. 138. fgmt. Peir. XXII. 1. XXIII. 2. Cic. de R. II. 8. Liv. I. 49.

Fest. 1.c.-Lex Ovinia Tribunicia intervenit, qua sanctum est ut Censores ex omnı ordine optimum quemque curiati in Senatu legerent. Where the word Curiati is corrupt.

as such before the close of the preceding Lustrum. Hence the distinction observed between Senatores and those quibus in Senatu sententiam dicere licet.1 Therefore, when the Censors supplied the vacancies, they began by selecting in order of rank and seniority those who had filled offices in virtue of which they had been admitted to sit and to speak. Such persons were regarded as possessing the first claim; and Livy, (XXII. 49,) when enumerating the victims at Cannae, makes use of the expression-octoginta praeterea, aut Senatores aut qui eos magistratus gessissent unde in Senatum legi deberent. When the Censors, in making up the new roll, omitted the name of any Senator, they were said movere s. eiicere Senatu the individual in question; if, on the other hand, they did not include in the list of new Senators any one who had a claim to be selected according to the principle explained above, while they gave a place to one or more who were his juniors or inferiors in rank, then they were said praeterire the individual in question, and such persons were termed Praeteriti. This distinction is not, however, always observed, and Praeterire is used generally with reference to those passed over by the Censors, whether previously Senators or not. 2

We are told by Appian (B.C. I. 100) that Sulla, when he made a large addition to the numbers of the Senate from the Equestrian order, left the choice of the individuals to the Tribes; but this statement is not confirmed by other writers.

Princeps Senatus.-The Censors, as we have seen, drew up a list of the Senate. The Senator whose name was placed by them at the head of the roll was styled Princeps Senatus, and this position was highly valued, although it conferred no substantial power or privilege. Under ordinary circumstances, the senior of the Censorii, that is, of those who had held the office of Censor, was the person selected as the Princeps; but this was by no means an imperative rule (Liv. XXVII. 11. XXXIV. 44.)

Qualifications as to Birth, Occupation, Age, Fortune, &c.—Although the choice of the Censors, during the best ages of the republic, was regulated, to a certain extent, by established usage, any one possessing the full Civitas was regarded as eligible without any limitation as to birth except ingenuitas for two generations. Hence, the son of a Libertinus would be shut out; but this exclusion seems to have rested upon public opinion rather than upon any specific law, for we find that persons belonging to this class were actually admitted in the Censorship of Appius Claudius, (B.C. 312)-qui Senatum primus libertinorum filiis lectis inquinaverat—but that popular indignation was so strongly expressed that the Consuls of the following year refused to acknowledge them. The same feeling, although neglected during the troubles of Marius and Sulla, was revived in the age of Cicero, but altogether disregarded by Julius Cæsar. *

No Senator, in the earlier ages at least, was allowed to follow any lucrative trade, or to engage in traffic except in so far as selling the produce of his lands; and hence, by an ancient Lex Claudia, no Senator nor son of a Senator, was permitted to possess a sea-going ship of more than 300 amphorae burden. vessel of that size was deemed sufficient for the transport of his crops and

A

1 Fest. s.v. Senatores, p. 339. Liv. XXIII. 32. XXXVI. 3. Val. Max. II. ii. 1. Aul. Gell. III. 18.

2 Liv. XXXIX. 42. XLI. 27. Epit. XCVIII. Fest. s.v. Praeteriti Senatores, p. 246.

3 Liv. IX. 30. 46. Cn. Fulvius in virtue of his office of Curule Aedile must have held a sent In the Senate.

4 Cic. pro Cluent. 47. Dion Cass. XL. 63. XLIII. 47. XLVIII. 34.

Quaestus omnis Patribus indecorus visus. But this law had fallen into desuetude in the days of Cicero.1

There can be little doubt, that towards the close of the republic there was a fixed age, before which no one was eligible; and hence Cicero, when dwelling on the early career of Pompeius exclaims-Quid tam praeter consuetudinem, quam homini peradolescenti, cuius Senatorio gradu aetas longe abesset, imperium atque exercitum dari?1 and this age probably depended on the Lex Villia Annalis; (see above, p. 207;) but when there was no restriction as to the age at which a citizen could be chosen to fill the highest magistracies it is not probable that there could have been any fixed Aetas Senatoria. Under the Empire the Aetas Senatoria seems to have been twenty-five, since, under ordinary circumstances, no one could hold the Quaestorship until he had attained to that age. 3

That the Senators, as a body, formed the wealthiest class in the state seems unquestionable, and examples occur in which they were called upon to contribute more largely than any other portion of the community to the necessities of the commonwealth. But we nowhere find any hint given that, under the free constitution, the want of a certain amount of fortune was held as a disqualification. As far as our authorities go, Augustus was the first who required a definite sum (Census Senatorius) as indispensable for those who desired to become candidates for the higher offices of state and to gain admission to the Senate. This sum he, in the first instance, fixed at 400,000 sesterces, the same with the Census Equester introduced by the Gracchi, (see above, p. 101,) but afterwards raised it to a million of sesterces, (decies,) after which we hear of no further change.

Powers and Duties of the Senate.-Although the Senate, from the very foundation of the city, was recognised as an integral and indispensable member of the body politic, it seems to have occupied a very subordinate position under the kings, except during an Interregnum. The monarch held his office for life, and was irresponsible; consequently, although compelled, to a certain extent, by public opinion and custom to ask the advice of the Senate, he might accept or reject their counsel as he thought fit. The Senators could not assemble unless summoned by him, nor deliberate upon any matter not submitted to them by him, and they had no means of enforcing their opinions and wishes. The King might, and probably did, for the sake of convenience, place many of the details of government in their hands; but the nature and extent of the authority thus committed to them depended entirely upon his will and pleasure. As soon, however, as the republic was established, the powers of the Senate were at once greatly enlarged. The chief magistrates now retained office for one year only, while the Senate, being a permanent body, a vast mass of public business necessarily devolved upon them alone. By degrees the independent powers of the Consuls and other magistrates became narrower, while the influence of the Senate was, in like proportion, extended, until, ere long, the magistrates were

1 Cic. in Verr. V. 18.

2 Cic. pro leg. Manil. 21.

3 Dion Cass. LII. 20. 32. LIII. 15. 28. comp. Velleius II. 94. Digest. I. xiii. 3. L. iv. 8. Tacit. Ann. XV. 28. Hist. IV. 42.

4 Dion Cass. LIV. 17. comp. LIV. 26. 30. Tacit. Ann. I. 75. IL 37. 86. Jur. VI. 137. X. 335. Martial. II. 65. If we can believe Suetonius, (Octav. 41,) the Census Senatorius was at at one time fixed by Augustus at 800,000 sesterces, and finally raised by him to 1,200,000; but this statement is not corroborated.

6 Liv. I. 32. 49. Cic. de R. II. 9. Dionys. II. 14. 56. III. 22. 26. 37. Plut. Rom. 27. Dion Caes. fgmt. Mai. Nov. Coll. II. p. 138.

little more than the servants who executed the orders of the Senate, by whose decision the whole administration of public affairs was regulated and controlled. The people in their Comitia alone had the right of enacting or repealing laws, of electing magistrates, of declaring war or concluding peace, and of deciding upon charges which involved the life or privileges of a citizen; but with these exceptions, the powers of the Senate were almost unlimited. Hence, we might content ourselves with this negative description of their duties; but there are certain important matters which we may briefly notice as falling more especially under their control

1. To the Senate exclusively belonged the administration of foreign affairs. They conducted all negotiations, appointed ambassadors selected from their own body, gave audience to the envoys of independent states, and concluded treaties. They received the deputations sent from the provinces, granted or refused their requests, inquired into their complaints and redressed their grievances. The people, as we have repeatedly observed, had alone the power of declaring war or concluding peace; but no proposition with regard to these points could be submitted to them except through the medium of the Senate, and when an attempt to pass over the Senate was made, it was regarded as little better than a direct violation of the constitution-novum malumque exemplum.2 All matters connected with the general conduct of the war were left to their wisdom. They named the different Provinces and their limits, they distributed them among the different magistrates, they fixed the amount of troops to be placed under the orders of each, they provided the necessary supplies of provisions, clothing, warlike stores and money, and after a victory they voted thanksgivings, (Supplicationes,) and greater or lesser triumphs (Triumphi-Ovationes.) 3

2. With the assistance of the great Colleges of priests, they cxercised a general superintendence over the religion of the state, arranged the periods for the celebration of the moveable feasts and for the exhibition of extraordinary games.

3. To them belonged the whole management of the public Exchequer. They were the auditors of the public accounts, and all disbursements were made by their orders.

4. Up to the passing of the Lex Sempronia Iudiciaria of C. Gracchus, (B.C. 122,) the jurors in criminal trials (iudices) were taken exclusively from the Senate.

5. The Senate assumed to itself, on several occasions, under pressing circumstances, the right of suspending for a time, in favour of some particular individual, the provisions of a positive law. This was, however, regarded as a stretch of their prerogative, to be justified only by extraordinary emergencies; and C. Cornelius, Tribune of the Plebs, B.C. 67, brought in a bill to stop this practice -promulgavit legem qua auctoritatem Senatus minuebat, ne quis nisi per populum legibus solveretur. See Ascon. in Cic. Orat. pro Cornel. arg. p. 57. ed. Orelli.

6. In seasons of great danger or alarm they assumed the right of investing the Consuls with Dictatorial power, by what was termed a Decretum Ultimum 6. Extremum. See above, p. 183.

7. Although the Senate never claimed the power of making or repealing laws, it is certain that, in the earlier ages of the republic, no law was submitted to the

1 Polyb. VI. 13. Liv. XXX. 17. XXXI. 11. XL. 58.

As to war. Liv. IV. 30. XXXVI 1. XLV. 21. As to peace. Liv. XXX. 37. 43. XXXIII. 13.30. XXXIV. 35. XXXVII. 45. 55.

3 Polyb. VI. 13. Liv. XXX. 17. XXXI. 11. XL. 58.

S