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SENA′TUSCONSUL′TUM. In his enumeration of the formal parts of the Jus Civile, Cicero includes Senatusconsulta (Top. 5). Numerous Leges properly so called were enacted in the reign of Augustus, and Leges, properly so called, were made even after his time. [Lex.] It was under Augustus however that the Senatusconsulta began to take the place of Leges properly so called, a change which is also indicated by the fact that until his time the Senatusconsulta were not designated either by the names of the Consuls or by any other personal name, so far as we have evidence. But from that time we find the Senatusconsulta designated either by the name of the Consuls, as Apronianum, Silanianum, or from the name of the Caesar, as Claudianum, Neronianum; or they are designated as made "auctore" or "ex auctoritate Hadriani," &c., or "ad orationem Hadriani," &c. The name of the Senatusconsultum Macedonianum is an exception, as will afterwards appear.
Many Senatusconsulta were enacted in the Republican period, and some of them were laws in the proper sense of the term, though some modern writers have denied this position. But the opinion of those who deny the legislative power of the Senate during the Republican period is opposed by facts. An attempt has sometimes been made to support it by a passage of Tacitus ("tum primum e campo Comitia ad patres translata sunt," Ann. I.15), a passage which only refers to the elections. It is difficult however to determine how far the legislative power of the Senate extended. A recent writer (Walter, Geschichte des Röm. Rechts, 437, 1st ed.) observes "that the Senatusconsulta were an important source of law for matters which concerned administration, the maintenance of Religion, the suspension or repeal of laws in the case of urgent public necessity, the rights of the Aerarium and the Publicani, the treatment of the Italians and the Provincials" (Liv. XXVI.34, XXXIX.3, XLI.9). The following are instances of Senatusconsulta under the Republic: a Senatusconsultum "ne quis in urbe sepeliretur;" the Senatusconsultum de Bacchanalibus hereafter more particularly mentioned; a Senatusconsultum de Libertinorum tribu (Liv. XLV.15); a Senatusconsultum de Macedonia (Liv. XLV.18); a Senatusconsultum de Sumtibus at the Megalenses Ludi (Gell. II.24); a Senatusconsultum "ne homo immolaretur" (Plin. H. N. XXX.1); a Senatusconsultum de provinciis Quaestoriis; a Senatusconsultum made M. Tullio Cicerone referente to the effect, "ut legationum liberarum tempus annuum esset;" an old Senatusconsultum, "Senatusconsultum vetus ne liceret Africanas (bestias) in Italiam advehere," which was so far repealed by a Plebiscitum proposed by Cn. Aufidius, Tribunus Plebis, that the importation for the purpose p1023 of the Circenses was made legal (Plin. H. N. VIII.17); an old Senatusconsultum by which "quaestio (servorum) in caput domini prohibebatur" (Tacit. Ann. II.30), a rule of law which Cicero (pro Milon. 22) refers to Mores as its foundation. From these instances of Senatusconsulta made in the Republican period we may collect in a general way the kind of matters to which this form of legislation applied. The constitution of the Senate was such as to gradually bring within the sphere of its legislation all matters that pertained to religion, police, administration, provincial matters, and all foreign relations. And it seems that the power of the Senate had so far increased at the time of the accession of Augustus that it was no great change to make it the only legislating body. Pomponius (Dig. 1 tit. 2 s2), though his historical evidence must be received with caution, states the matter in a way which is generally consistent with what we otherwise know of the progress of Senatorial legislation: "As the plebs found it difficult to assemble, &c., it was a matter of necessity that the administration of the State came to the Senate: thus the Senate began to act, and whatever the Senate had determined (constituisset) was observed (observabatur), and a law so made is called Senatusconsultum."
A Senatusconsultum was so named because the Consul (qui retulit) was said "Senatum consulere": "Marcivs L. F. S. Postvmivs L. F. Cos Senatvm Consolvervnt." (Senatusconsultum de Bacchanalibus). In the Senatusconsultum de Philosophis et De Rhetoribus (Gell. XV.11), the Praetor "consuluit." In the enacting part of a Lex the Populus was said "jubere," and in a Plebiscitum "scire": in a Senatusconsultum the Senate was said "censere": "De Bacchanalibvs, &c., ita exdeicendvm censvere." (S. C. de Bacch.) In the Senatusconsulta of the time of Augustus cited by Frontinus (de Aquaeductibus Romae, II), the phrase which follows "censuere" is sometimes "placere huic ordini." In Tacitus the verb "censere" is also applied to the person who made the motion for a Senatusconsultum (Ann. IV.20). Sometimes the term "arbitrari" is used (Dig. 16 tit. 1 s2); and Gaius (I.4), writing under the Antonines applies to the Senatus the terms which originally denoted the legislative power of the Populus: "Senatus jubet atque constituit; idque legis vicem optinet, quamvis fuit quaesitum." "Habere senatum" is to hold a meeting of the senate. When Cn. Pompeius was elected consul for the first time, his friend M. Varro wrote for his use a treatise "de Senatu habendo consulendoque." A Senatusconsultum made before the rising or after the setting of the sun was not valid (Gellius, XIV.7).
The mode in which the legislation of the Senate was conducted in the Imperial period is explained in the article Orationes Principum.
Certain forms were observed in drawing up a Senatusconsultum, of which there is an example in Cicero (ad Fam. VIII.8): "S. C. Auctoritates (for this is the right reading) Pridie Kal. Octob. in Aede Apollinis, scribendo adfuerunt L. Domitius Cn. Filius Ahenobarbus, &c. Quod M. Marcellus Consul V. F. (verba fecit) de prov. Cons. D. E. R. I. C. (de each re ita censuerunt Uti, &c.)." The preamble of the Senatusconsultum de Bacchanalibus is similar, but the names of the consuls come at the beginning and the word is "consolvervnt": the date and place are also given; and the names of those qui scribendo adfuerunt (SC. ARF. in the Inscription). The names of the persons who were witnesses to the drawing up of the Senatusconsultum were cited as evidence of the fact of the persons named in them having been present at the drawing up of the S.C. ("id quod in auctoritatibus praescriptis extat," Cic. de Or. III.2); from which passage, and from another (Cic. ad Fam. V.2; "illud S. C. ea praescriptione est") in which Cicero refers to his name being found among the auctoritates of a S.C. as proof of his friendship to the person whom the S.C. concerned, it is certain that "praescribo" in its various forms is the proper reading in these Senatusconsulta (Compare the similar use of Praescriptio in Roman Pleadings [Praescriptio]). There can be no doubt that certain persons were required to be present "scribendo," but others might assist if they chose, and a person in this way might testify his regard for another on behalf of whom or with reference to whom the S.C. was made ("Cato autem et scribendo adfuit," &c. Cic. ad Att. I.19), and "poni ad scribendum" as to which see the curious passage in Cicero, ad Fam. IX.15). When a S.C. was made on the motion of a person, it was said to be made "in sententiam ejus." If the S.C. was carried, it was written on tablets and placed in the Aerarium: the S.C. de Bacchanalibus provides that it shall be cut on a bronze tablet, but this was for the purpose of its being put up in a public place where it could be read (vbei facilivmed gnoscier potisit).
The Senatusconsulta were originally intrusted to the care of the tribunes and the aediles, but in the time of Augustus the quaestors had the care of them (Dion Cass. LV.36, and the note of Reimarus). Under the later emperors the Senatusconsulta "quae ad principes pertinebant," were preserved in "libri elephantini" (Vopiscus, Tacitus, c8).
A measure which was proposed as a Senatusconsultum might be stopped by the Intercessio of the Tribunes, and provision was sometimes made for further proceeding in such case: "si quis huic senatusconsulto intercesserit senatui placere auctoritatem perscribi (praescribi) et de ea re ad senatum populumque referri" (Cic. ad Fam. VIII.8). This explains one meaning of Senatus auctoritas, which is a Senatusconsultum which has been proposed and not carried, and of which a record was kept with the "auctoritates eorum qui scribendo adfuerunt." In one passage Cicero calls a S.C. which had failed owing to an Intercessio, an Auctoritas (ad Fam. I.7). One meaning of Auctoritas in fact is a S.C. proposed, but not yet carried and this agrees with Livy (IV.57): "Si quis intercedat Sto, auctoritate se fore contentum." If Senatus auctoritas occasionally appears to be used as equivalent to Senatusconsultum, it is an improper use of the word, but one which presents no difficulty if we consider that the names which denote a thing in its two stages are apt to be confounded in popular language, as with us the words Bill and Act. In its general and original sense Senatus Auctoritas is any measure to which a majority of the Senate has assented (see the note of P. Manutius on Cic. ad Fam. V.2).
p1024 The proper enacting word in the Senatusconsultum is "censeo," but the word "decerno" was also used in ordinary language to express the enacting of a Senatusconsultum (Cic. ad Fam. VIII.8; Senatus decrevit ut &c. ad Att. I.19). But a Senatusconsultum, which was a law in the proper sense of the term, is not called a Decretum, which was a rule made by the Senate as to some matter which was strictly within its competence. The words Decretum and Senatusconsultum are often used indiscriminately and with little precision (Gell. II.24). (See Aelius Gallus, apud Festum, s.v. Senatus Decretum, and Decretum).
The forms of the Senatusconsulta are the best evidence of their character. The following are some of the principal Senatusconsulta which are preserved: Senatusconsultum de Tiburtibus, printed by Gruter and others, which is "undoubtedly the oldest of all Roman documents" (Niebuhr, Rom. Hist. vol. III p264, note 66); the Senatusconsultum de Bacchanalibus; the Senatusconsultum in the Letter of Cicero already referred to; Cic. Philipp. V.13; Gellius, XV.11; the six Senatusconsulta about the Roman Aqueducts in the second book of Frontinus de Aquaeductibus; the Senatusconsultum about the Aphrodisienses (Tacit. Ann. III.62; Tacit. Oberlin. II.835); the oration of Claudius (Tacit. Ann. XI.24; Tacit. Oberlin. II.806); the various Senatusconsulta preserved in the Digest, which are mentioned in a subsequent part of this article. See also the Senatusconsultum printed in Sigonius, "De Antiquo Jure Provinciarum," I.288; and the Sctum by which the name Augustus was given to the month Sextilis (Macrob. Saturnal. I.12).
The following list of Senatusconsulta contains perhaps all of them which are distinguished by the name of a consul or other distinctive name. Numerous Senatusconsulta under the Empire are referred to in the Latin writers, for which we find no distinctive name, though it is probable that all of them had a title like the Leges, but many of them being of little importance were not much referred to or cited, and thus their names were forgotten. Tacitus, for instance, often speaks of S.C. without giving their names, and in some cases were are able to affix the titles from other authorities. Many of the Imperial Senatusconsulta were merely amendments of Leges; but they are laws in the proper sense of the word.
Some of the Senatusconsulta of the Republican period were laws, as already observed, but others were only determinations of the Senate, which became Leges by being carried in the comitia. Such S.C. were really only auctoritates. One instance of this kind occurred on the occasion of the trial of Clodius for violating the mysteries of the Bona Dea. A rogatio on the subject of the trial was proposed to the Comitia ex Senatusconsulto (Cic. ad Att. I.14); which is also spoken of as the Auctoritas of the Senate, and as "quod ab Senatu Constitutum" (the words of Gaius, I.4).
Apronianum, probably enacted in the time of Hadrian, empowered all Civitates which were within the Roman Imperium to take a fideicommissa hereditas. This Senatusconsultum is cited by Ulpian (Frag. tit. 22) without the name, but it appears from comparing Ulpian with the Digest (36. tit. 1 s26) to be the Senatusconsultum Apronianum. A Senatusconsultum also allowed Civitates or Municipia, which were legally considered as Universitates, to be appointed heredes by their liberti or libertae. Ulpian speaks of this Senatusconsultum in the passage referred to, immediately before he speaks of that Senatusconsultum which we know to be the Apronianum, and it appears probable that the two Senatusconsulta were the same, for their objects were similar and they are mentioned together without any indication of their being different. This last mentioned provision is also mentioned in the Digest (38. tit. 3) as being contained in a Senatusconsultum which was posterior to the Trebellianum, but the name is not given in the Digest. Under this provision a Municipium could obtain the Bonorum Possessio. Bachius (Historia Jurisprudentiae Romanae) assigns this Senatusconsultum to the reign of Trajan. But it appears to belong to the time of Hadrian, and to be the same S.C. which allowed Civitates to take a legacy (Ulp. Frag. tit. 24).
Articuleianum gave the praeses of a Province jurisdiction in the case of fideicommissa libertas, even when the heres did not belong to the Province. The heres could be compelled to give the libertas which was the subject of the fideicommissum (Manumissio; Dig. 40 tit. 5 s4, 51). This Senatusconsultum was enacted A.D. 101, in which year Sex. Articuleius Paetus was consul.
De Bacchanalibus. This Senatusconsultum, which is sometimes called Marcianum, was passed in the year B.C. 186. The terms of it are stated generally by Livy (XXXIX.18), and may be compared with the original Senatusconsultum which is printed in the edition of Livy by Drakenborch, and in that by J. Clericus, Amsterdam, 1710. There is a dissertation on this Senatusconsultum by Bynkershoek (De Cultu Religionis Peregrinae apud Veteres Romanos, Op. I.412), who has printed the Senatusconsultum and commented upon it at some length. The provisions of this Senatusconsultum are stated generally under Dionysia, p414B. There is no ancient authority, as it appears, for the name Marcianum, which has been given to it from the name of one of the Consuls who proposed it, and in accordance with the usual titles of S. C. in the Imperial period. This Sctum was found in A.D. 1640, in a village in Calabria, and is said to be now at Vienna. (Senatusconsulti De Bacchanalibus, &c. Explicatio, auctore Matthaeo Aegyptio, Napol. 1729.)
Claudianum passed in the time of the Emperor Claudius, reduced a free woman to the condition of a slave (ancilla) if she cohabited with the slave of another person, after the master had given her notice that he would not permit it. But if a woman, who was a Roman citizen, cohabited with a slave with the consent of the slave's master, she might by agreement with the master remain free and yet any child born from this cohabitation would be a slave; for the Senatusconsultum made valid any amount between the free woman and the slave's master, and by such agreement the woman was relieved from the penalty of the Senatusconsultum. But Hadrian, being moved thereto by a consideration of the hardship of the case and the incongruity of this rule of law (inelegantia juris), restored the old rule of the Jus Gentium, according to which the woman continuing free was the mother of a free child.
p1025 A difficulty arose on the interpretation of this Senatusconsultum for which the words of the law had not provided. If a woman, who was a Roman citizen, was with child, and became an ancilla pursuant to the Senatusconsultum in consequence of cohabiting with a slave contrary to the master's wish, the condition of the child was a disputed matter: some contended that if the woman had become pregnant in a legal marriage, the child was a Roman citizen, but if she had become pregnant by illicit cohabitation, the child was the property of the person who had become the master of the mother. [Servus (Roman)]
There is an apparent ambiguity in a passage of Gaius (I.86) in which he says, "but that rule of the same Lex is still in force, by which the issue of a free woman and another man's slave is a slave, if the mother knew that the man with whom she cohabited, was a slave." The Lex of which he speaks, is the Lex Aelia Sentia. The exception in the Senatusconsultum of Claudius applied to the case of a compact between a free woman and the master of the slave, which compact implies that the woman must know the condition of the slave, and therefore according to the terms of the Lex the issue would be slaves. But Gaius says (I.84) that under this Senatusconsultum the woman might by agreement continue free and yet give birth to a slave; for the Senatusconsultum gave validity to the compact between the woman and the master of the slave. At first sight it appears as if the Senatusconsultum produced exactly the same effect as the Lex with respect to the condition of the child. But this is explained by referring to the chief provision of the Senatusconsultum, which was that cohabitation with a slave "invito et denuntiante domino" reduced the woman to a servile condition, and it was a legal consequence of this change of condition that the issue of her cohabitation must be a slave. The Lex Aelia Sentia had already declared the condition of children born of the union of a free woman and a slave to be servile. The Senatusconsultum added to the penalty of the Lex by making the mother a slave also, unless she cohabited with the consent of the master, and thus resulted that "inelegantia juris" by which a free mother could escape the penalty of the Senatusconsultum by her agreement and yet her child must be pursuant to the Lex. Hadrian removed this inelegantia by declaring that if the mother notwithstanding the cohabitation escaped from the penalties by virtue of her compact, the child also could have the benefit of the agreement. The Senatusconsultum only reduced the cohabiting woman to a servile state when she cohabited with a man's slave "invito et denuntiante domino": if she cohabited with him, knowing him to be a slave, without the knowledge of the master, there could be no denuntiatio, and this case, it appears, was not affected by the Senatusconsultum, for Gaius observes, as above stated (I.86), that the Lex had still effect and the offspring of such cohabitation was a slave. The fact of this clause of the Lex remaining in force after the enacting of the Senatusconsultum, appears to be an instance of the strict interpretation which the Roman Jurists applied to positive enactments; for the Senatusconsultum of Hadrian as stated by Gaius only applied to the case of a contract between the master's slave and the woman, and therefore its terms did not comprehend a case of cohabitation when there was no compact. Besides this if a free woman cohabited with a man's slave either without the knowledge of the master or with his knowledge, but without the "denuntiatio," it seems that this was considered as if the woman simply indulged in promiscuous intercourse (vulgo concepit), and the mother being free, the child also was free by the Jus Gentium till the Lex attempted to restrain such intercourse by working on the parental affections of the mother, and the Senatusconsultum by a direct penalty on herself. There was a "juris inelegantia" in a free woman giving birth to a slave, but this was not regarded by Hadrian, who was struck by the inelegantia of a woman by compact being able to evade the penalty of the Senatusconsultum while her child was still subject to the penalty of the Lex.
This Senatusconsultum was passed A.D. 52, and is mentioned by Tacitus, but the terms in which he expresses himself do not contain the true meaning of the Senatusconsultum, and in one respect, "sin consensisset dominus, pro libertis haberentur," they differ materially from the text of Gaius, unless the reading "libertis" should be "liberis" (see the notes on Tacit. Ann. XII.53, ed. Oberlin). It appears however from a passage in Paulus (S.R. IV. tit. 10), that a woman, in some cases which are not mentioned by him, was reduced to the condition of a liberta by the Senatusconsultum; a circumstance which confirms the accuracy of the text of Tacitus, but also shows how very imperfectly he has stated the Senatusconsultum. Suetonius (Vesp. 11) attributes the Senatusconsultum to the reign of Vespasian, and expresses its effect in terms still more general and incorrect than those of Tacitus. Such instances show how little we can rely on the Roman historians for exact information as to legislation.
It appears from Paulus that provisions of this Senatusconsultum are stated very imperfectly even by Gaius, and that they applied to a great number of cases of cohabitation between free women, whether Ingenuae or Libertinae, and slaves.
This Senatusconsultum was entirely repealed by a Constitution of Justinian. Some writers refer the words "ea lege" (Gaius, I.85) to the Senatusconsultum Claudianum, and they must consequently refer the words "ejusdem legis" (Gaius, I.86) to this Senatusconsultum; but the word "lex" in neither case appears to refer to the Senatusconsultum, but to the Lex Aelia Sentia.
There were several other Senatusconsulta Claudiana, of which there is a short notice in Jo. Augusti Bachii Historia Jurisprudentiae Romanae.
Dasumianum, passed in the reign of Trajan, related to Fideicommissa libertas (Dig. 40 tit. 5 s51). See Rudorff, Zeitschrift, &c. vol. XII p307, Das Testament des Dasumius.
Hadriani Senatusconsulta. Numerous senatusconsulta were passed in the reign of Hadrian, but there does not appear to be any which is called Hadrianum. Many Senatusconsulta of this reign are referred to by Gaius as "Senatusconsulta auctore Hadriano facta,": I.47, &c., of which there is a list in the Index to Gaius. The Senatusconsulta made in the reign of Hadrian are enumerated by Bachius, and some of them are noticed here under their proper designations. p1026
Juncianum, passed in the reign of Commodus, related to Fideicommissa Libertas (Dig. 40 tit. 5 s28, 51). This Senatusconsultum is preserved in one of the passages of the Digest referred to.
Junianum, passed in the time of Domitian, in the tenth consulship of Domitian, and in the consulship of Ap. Junius Sabinus, A.D. 84, had for its object to prevent collusion between a master and his slave, by which the slave should be made to appear to be as a free man. The person who discovered the collusion obtained the slave as his property (Dig. 40 16).
Juventianum is the name given by modern jurists to the Senatusconsultum, which is preserved in the Digest (5 tit. 3 s20 § 6). The Senatusconsultum is placed under the title "De Hereditatis Petitione."
Largianum, passed in the first year of the Emperor Claudius, A.D. 42, gave to the children of a Manumissor, if they were not exheredated by name, a right to the bona of Latini in preference to Extranei heredes (Patronus; Gaius, III.63‑71; Inst. 3 tit. 7 s4; Cod. 7 tit. 6).
Libonianum, passed in the reign of Tiberius, in the consulship of T. Statilius Taurus and L. Scribonius Libo, A.D. 16, contained various provisions, one of which was to the effect that if a man wrote a will for another, every thing which he wrote in his own favour was void: accordingly he could not make himself a tutor (Dig. 26 tit. 2 s29), nor heres or legatarius (Dig. 34 8). This Senatusconsultum contained other provisions, and it appears to have been an extension of the Lex Cornelia de Falsis [Falsum]. See also Coll. Leg. M. & R. VIII.7.
Macedonianum, enacted A.D. 46, provided that any loan of money to a filiusfamilias could not be recovered even after the death of the father. The Senatusconsultum took its name from Macedo, a notorious usurer, as appears from the terms of the Senatusconsultum which is preserved (Dig. 14 tit. 6). Theophilus (Paraphr. Inst.) states incorrectly that the Senatusconsultum took its name from a filiusfamilias. The provision of the Senatusconsultum is cited by Tacitus (Ann. XI.13), but in such terms as might lead to ambiguity in the interpretation of the law. Suetonius (Vesp. 11) attributes this Senatusconsultum to the time of Vespasian; but he states its provisions in less ambiguous terms than Tacitus.
Memmianum. This name is sometimes given to the Senatusconsultum, passed in the time of Nero, the terms of which are preserved by Tacitus (Ann. XV.19): "ne simulata adoptio in ulla parte muneris publici juvet, ac ne usurpandis quidem hereditatibus prodesset." The object of this Senatusconsultum was to prevent the evasion of the Lex Julia et Papia Poppaea. It is sometimes referred to the consulship of C. Memmius Regulus and Virginius Rufus A.D. 63, but it appears to belong to the preceding year. See Dig.31 s.51, and 35 tit. 1 s76.º
Neronianum, also called Pisonianum, from being enacted in the consulship of Nero and L. Calpurnius Piso, A.D. 57. It contained various provisions: "Ut si quis a suis servis interfectus esset, ii quoque, qui testamento manumissi sub eodem tecto mansissent, inter servos supplicia penderent" (Tacit. Ann. XIII.32): "Ut occisa uxore etiam de familia viri quaestio habeatur, idemque ut juxta uxoris familiam observeretur, si vir dicatur occisus" (Paulus, S.R. III. tit. 5, who gives in substance also the provision mentioned by Tacitus, but adds: "Sed et hi torquentur, qui cum occiso in itinere fuerunt"): "Ut, si poenae obnoxius servus venisset, quandoque in eum animadversum esset, venditor pretium praestaret" (Dig. 29 tit. 5 s8).
Orphitianum enacted in the time of M. Aurelius (Capitol. in vita, 11) that the legitima hereditas of a mother who had not been in manu, might come to her sons to the exclusion of the consanguinei and other agnati. The name Orphitianum is supplied by Paulus (S.R. IV. tit. 10), and the Digest (38 17); the enactment was made in the consulship of V. Rufus and C. Orphitus (Inst. 3 4).
Paulus (IV. tit. 14) speaks of rules relating to manumission being included in a Senatusconsultum Orphitianum [Heres.] This Senatusconsultum was made in the joint reign of M. Aurelius and Commodus (Impp. Anton. et Commodi oratione in senatu recitata, Ulp. Frag. tit. XXVI). See Orationes Principum.
Pegasianum was enacted in the reign of Vespasian, Pegasus and Pusio being Consules (Suffecti?) in the year of the enactment (Inst. 2. tit. 23; Gaius, II.254, &c.). The provisions of this Senatusconsultum are stated under Fideicommissa and Legatum. This Senatusconsultum, or another of the same name, codified a provision of the Lex Aelia Sentia as to a Latinus becoming a Romanus (Gaius, I.31).
Persicianum, which may be the correct form instead of Pernicianum, was enacted in the time of Tiberius A.D. 34, and was an amendment of the Lex Julia et Papia Poppaea (Compare Fideicommissum; Ulp. Frag. tit. XVI; Suet. Claud. 23).
Plancianum, of uncertain date, is by some writers assigned to the time of Vespasian. The Lex Julia et Papia Poppaea apparently contained a provision by which a fideicommissum was forfeited to the Fiscus, if a heres or legatarius engaged himself by a written instrument or any other secret made to pay or give the fideicommissum to a person who was legally incapable of taking it (Dig. 30 s103; 34 tit. 9 s10, 18; 49 tit. 14 s3). Such a Fideicommissum was called Tacitum, and when made in the way described was said to be "in fraudem legis," designed to evade the law. If it was made openly (palam), this was no fraus, and though the fideicommissum might be invalid on account of the incapacity of the fideicommissarius to take, the penalty of the lex did not apply. It does not appear certain whether this provision as to the confiscation was contained in the original Lex or added by some subsequent Senatusconsultum. However this may be, the fiduciarius still retained his Quarta. But a Senatusconsultum mentioned by Ulpian (Frag. tit. XXV s17) enacted that if a man undertook to perform a tacitum fideicommissum, he lost the Quadrans or Quarta [ Fideicommissum], nor could he claim what was Caducum under the Testamenta, which as a general rule he could claim if he had children [Legatum; Caduca]. This Senatusconsultum, it appears from an extract in the Digest (35 tit. 2 s59), p1027 was the Plancianum, or Plautianum, for the reading is doubtful; and in this passage it is stated that the Fourth, which the Fiduciarius was not allowed to retain, was claimed for the Fiscus by a Rescript of Antoninus Pius. The penalty for the fraud only applied to that part of the property to which the fraud extended, and if the heres was heres in a larger share of the hereditas than the share to which the fraus extended, he had the benefit of the Falcidia for that part to which the fraus did not extend, which is thus expressed by Papinian (Dig. 34 tit. 9 s11), "sed si major modus institutionis quam fraudis fuerit quod ad Falcidiam attinet, de superfluo quarta retinebitur." The history of legislation on the subject of Tacita fideicommissa is not altogether free from some doubt.
Rubrianum, enacted in the time of Trajan, in the consulship of Rubrius Gallus and Q. Coelius Hispo (probably consules suffecti) A.D. 101, related to fideicommissa libertas. Its terms are given in the Digest (40 tit. 5 s26): "Si hi a quibus libertatem praestar oportet evocari a Praetore adesse noluissent, Si causa cognita Praetor pronuntiasset libertatem his deberi, eodem jure statum servari ac si directo manumissi essent." Compare Plin. Ep. IV.9, ad Ursum with the passage in the Digest.
Sabinianum, of uncertain date, but apparently after the time of Antoninus Pius. It related to the rights of one of three brothers who had been adopted, to a portion of the hereditas contra tabulas testamenti (Cod. 8 tit. 48 s10; Inst. 3 1).
Silanianum, probably passed in the time of Augustus in the consulship of P. Cornelius Dolabella and C. Junius Silanus A.D. 10, contained various enactments. It gave freedom to a slave who discovered the murderer of his master. If a master was murdered, all the slaves who were under the roof at the time, if the murder was committed under a roof, or who were with him in any place at the time of the murder, were put to the torture, and, if they had not done their best to defend him, were put to death. Tacitus (Ann. XIV.42) refers to this provision of the Senatusconsultum, and he uses the phrase "vetere ex more." Lipsius (note on this passage) refers to Cicero (ad Fam. IV.12). Servi Impuberes were excepted from this provision of the Senatusconsultum (Dig. 29 tit. 5 s14). The heres who took possession of the hereditas of a murdered person before the proper inquiry was made, forfeited the hereditas, which fell to the Fiscus: the rule was the same whether being heres ex testamento he opened the will (tabulae testamenti) before the inquiry was made, or whether being heres ab intestato, he took possession of the hereditas (adiit hereditatem) or obtained the Bonorum Possessio; he was also subjected to a heavy pecuniary penalty. A Senatusconsultum passed in the consulship of Taurus and Lepidus A.D. 11, enacted that the penalty for opening the will of a murdered person could not be inflicted after five years, except it was a case of parricide to which this temporis praescriptio did not apply. (Paulus, S.R. III. tit. 5; Dig. 29 tit. 5; Cod.6 35).
Tertullianum is stated in the Institutes of Justinian (3 3) to have been enacted in the time of Hadrian in the consulship of Tertullus and Sacerdos; but some critics, notwithstanding this, would refer it to the time of Antoninus Pius. This Senatusconsultum empowered a mother, whether Ingenua or Libertina, to take the Legitima hereditas of an intestate son; the Ingenua, if she was or had been the mother of three children; the Libertina, if she was or had been the mother of four children. They could also take, though they neither were nor had been mothers, if they had obtained the Jus Liberorum by Imperial favour. Several persons however took precedence of the mother; the sui heredes of the son, those who were called to the Bonorum Possessio as sui heredes, the father, and the frater consanguineus. If there was a soror consanguinea, she shared with her mother. The Senatusconsultum Orphitianum gave the children a claim to the hereditas of the mother.
Trebellianum, enacted in the time of Nero in the consulship of L. Annaeus Seneca and Trebellius Maximus A.D. 62, related to Fideicommissae hereditates.
Turpilianum, enacted in the time of Nero in the consulship of Caesonius Paetus and Petronius Turpilius A.D. 61, was against praevaricatio or the collusive desisting from prosecuting a criminal charge. The occasion of this Senatusconsultum and the terms of it are stated by Tacitus (Ann. XIV.14): "qui talem operant emptitasset, vendidissetve, perinde poena teneretur ac publico judicio calumniae condemnaretur." The definition of a praevaricator is given in the Digest (48 tit. 16 s1, Ad Senatusconsultum Turpilianum).
Velleianum rendered void all intercessiones by women, whether they were on behalf of males or females. This Senatusconsultum was enacted in the consulship of Marcus Silanus and Velleius Tutor, as appears from the preamble of the Senatusconsultum (Dig. 16 tit. 1), and it appears most probably to have been passed in the reign of Commodus from the words of Ulpian in his comment upon it. The name of Velleius Tutor does not occur in the Fasti Consulares, and he may be a consul suffectus. The name of M. Silanus occurs as consul in the reign of Claudius, and the colleague of Valerius Asiaticus, A.D. 46 (Dion Cass. LX.27) [Intercessio.] In the year A.D. 19, according to the Fasti a M. Silanus was also consul; his colleague according to the Fasti was L. Norbanus Balbus, and this agrees with Tacitus (Ann. II.59).
Vitrasianum is assigned to the reign of Vespasian, but the time is very uncertain. It related to Fideicommissa Libertas (Dig. 40 tit. 5 s30).
Volusianum, enacted in the reign of Nero in the consulship of Q. Volusius Saturninus and P. Cornelius Scipio, A.D. 56. It contained a provision against pulling down a domus or villa for the sake of profit; but the object of this law seems rather obscure; it is referred to, without the name being given, in the Digest (18 tit. 1 s52, Senatus censuit, &c.). Tacitus (Ann. XIII.28) mentions a Senatusconsultum in this consulship which limited the power of the Aediles: "quantum curules, quantum plebeii pignoris caperent, vel poenae irrogarent." A Senatusconsultum Volusianum (if the name is right) enacted that persons should be liable to the penalties of the Lex Julia de vi privata, p1028 who joined in the suit of another person with the bargain that they should share whatever was acquired by the condemnatio (Dig. 48 tit. 7 s6).
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