once led to the greatest upheaval that Roman history records. It was by pointing out that the law of the younger Livius Drusus, which contained amongst its other clauses the gift of civitas to the allies, was irregular as contravening the condition fixed by a lex Caecilia Didia (98 B.C.) that wholly different enactments should not be contained in the same rogatio,[1] that the Senate brought to a head the formidable conspiracy which culminated in the outbreak of the social war. History also brings to our notice the attempted reversal by this means of a popular judgment of a far smaller kind. It was suggested in the Senate that a notice of the alleged irregularities of Clodius' plebiscitum should be made the ground of Cicero's recall; but the exiled orator, while thinking that there was "something in the notion," yet preferred the far safer form of an abrogation of the enactment by the popular voice itself.[2]
When we turn from legislation to its complement of jurisdiction we find little direct interference by the Senate with the regular course of either civil or criminal procedure. On exceptional occasions it might decide the sphere of the praetor's activity,[3] and by its practical weight in the declaration of a justitium it might suspend the operation of the business of the courts; but it did not interfere in the details of such business, and the appeals to the vetoing magistrates were left to their own discretion.
With respect to the criminal jurisdiction of the regular courts, although the Senate never assumed a faculty for determining the procedure or the sentence, it sometimes took the initiative in a prosecution by suggesting that a charge should be brought, and this implication might be contained in a senatorial judgment that a certain course of action was contra rem publicam.[4]
- ↑ Cic. pro Domo 16, 41 "judicavit senatus M. Drusi legibus, quae contra legem Caeciliam et Didiam latae essent, populum non teneri." The account that the Livian laws were shelved as contra auspicia (Ascon. in Cornel. p. 68 "Philippus cos. . . . obtinuit a senatu, ut leges ejus omnes uno s. c. tollerentur. Decretum est enim contra auspicia esse latas neque eis teneri populum") may contain one of the grounds of their abrogation.
- ↑ Cic. ad Att. iii. 15, 5 "Quod te cum Culleone scribis de privilegio locutum, est aliquid, sed multo est melius abrogari."
- ↑ p. 204.
- ↑ Liv. xxv. 4; Sall. Cat. 50; Ascon. in Milon. p. 44. The Senate in this way sometimes interprets a criminal law and extends its incidence. See Cic. de Har. Resp. 8, 15 "decrevit senatus eos qui id fecissent (i.e. who had disturbed the rebuilding of Cicero's house) lege de vi, quae est in eos qui universam rem publicam oppugnassent (i.e. vi publica) teneri."
