Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

SENATUSCONSULTUM. SENATUSCONSULTUM. 1025
A difficulty arose on the interpretation of this not comprehend a case of cohabitation when there
Senatusconsultun for which the words of the law was no compact. B:sides this if a free woman
had not provided. If a woman, who was a Roman cohabited with a man's slave either without the
citizen, was with child, and became an ancilla knowledge of the master or with his knowledgre
pursruant to the Senatusconsultum in consequence but without the " denmntiatio," it seems that this
of cohabiting with a slave contrary to the master's was considered as if the woman simply indulged in
wish, the condition of the child was a disputed promiscuous intercourse (vulgo concePit), and the
matter: some contended that if the woman had mother being free, the child also was free by the
become pregnant in a legal marriage, the child was Jus Geintimn till the Lex attempted to restrain
a Roman citizen, but if she had become pregnant such intercourse by working on the parental affecby illicit cohabitation, the child was the property tions of the mother, and the Senatusconsultum by
of the person who had become the master of the a direct penalty on herself. There was a "juris
mother. [SERvus (ROMAN).] inelegantia" in, a free woman giving birth to a
There is an apparent ambigurity in a passage of slave, but this was not regarded by Hadrian, who
Gaius (i. 86) in which he says, " but that rule was struck by the inelegantia of a woman by comof the same Lex is still in force, by which the issue pact being able to evade the penalty of the Senaof a free woman and another man's slave is a slave, tusconsultum while her child was still subject to
if the mother knew that the man with whom she- the penalty of the Lex.
cohabited, was a slave." The Lex of which he This Senatlusconsultum was passed A. D. 52, and
speaks, is the Lex Aelia Sentia. The exception is mentioned by Tacitus, but the terms in which
in the Senatusconsultum of Claudius applied to the he expresses himself do not contain the true meancase of a compact between ai free woman and the ing of the Senatusconsultum, and in one respect,
master of the slave, which compact implies that " sin consensisset dominus, pro libertis haberentur,"
the woman must know the condition of the slave, they differ materially from the text of Gains, unless
and therefore according to the terms of the Lex the reading "Clibertis" should be "liberis." (See
the issue would be slaves. But Gaius says (i. 84) the notes on Tacitus,Azn. xii. 53,ed. Oberlin.) It apthat under this Senatusconsultum the woman might pears however from a passage in Paulus (S. R. iv.
by agreement continue free and yet give birth to a tit. 10), that a woman, in some cases which are not
slave; for the Senateesconsultum gave validity to mentioned by him, was reduced to the condition of
the compact between the woman and the master of a liberta by the Senatusconsultum.; a circumstance
the slave. At first sight it appears as if the which confirms the accuracy of the text of Tacitus,
Senatusconsultunm produced exactly the same effect but also shows how very imperfectly he has stated
as the Lex with respect to the condition of the the Seliatusconsultum. Suetonius (Vesp. 11) atchild. But this is explained by referring to the tributes the Senatusconsultum to the reign of Veschief provision of the Senatusconsultum, which pasian, and expresses its effect in terms still more
nas that cohabitation with a slave " invito et de- general and ilicorrect than those of Tacitus. Such
nuntialnte domino" reduced the woman to a servile instances show how little we can rely on the
condition, and it was a legal consequence of this Roman historians for exact information as to
change of condition that the issue of her cohabita- legislation.
tion must be a slave. The Lex Aelia Sentia had It appears from Paulus that the provisions of
already declared the condition of children born of this Senatusconsultum are stated very imperfectly
the unionl of a free woman and a slave to be ser- even by Gains, and that they applied to a great
vile. The Sen;ltusconsultum added to the penalty number of cases of cohabitation between free woof the Lex by mlsaking the' mother a slave also, un- men, whether Ingenuae or Libertinae, and slaves.
less she cohabited with the consent of the master, This Senatuseonseultsum was entirely repealed by
anid thus resulted that "inelegantia juris" by a Constitution of Justinian. Some writers refer
which a free mother could escape the penalty of the words " ea lege" (Gaius, i. 85) to the Senatusthe Senatusconsultum by her agreement and yet consultum Claudianum, and they must consequently
her child must be a slave pursuant to the Lex. refer the words "ejusdemn legis" (Gaius, i. 86) also
Hadrian removed this inelegantia by declaring that to this Senatusconsultum; but the word " lex " in
if the mother notwithstanding the cohabitation es- neither case appears to refer to the: Senatusconsulcaped from the penalties of the Senatusconsultum turn, but to the Lex Aelia Sentia.
by virtue of her compact, the child also should (Gains, i. 84, 86, 91, 160; Ulp. Iasg. tit. xi.;
have the benefit of the agreement. The Sensatus- Cod. 7. tit. 24; Paulus, S. R. ii. tit. 21.)
consultum osnly reduced the cohabiting woman to There were several other Senatuseonsulta Claua servile state when she cohabited with a man's diaona of which there is a short notice in Jo. Auslave'" invito et denuutiallte dorino:" if she co- gusti Bachii Histo ia Jurisprudentiae Romatlae.
habited with him, knowing him to be a slave, DASUMIANUv, passed in the reign of Trajan,
without the knowledge of the master, there could related to Fideicommiss a libertas. (Dig. 40. tit. 5.
be rlo denentiartio, and this case, it appears, was s. 51.) See Rudorff, Zeitsc/zrft, &c. vol. xii. p. 307,
not affected by the Senatusconsultum, for Gains Dos Tcstament des Dasumiuss
observes, as above stated (i. 86), that the Lex had HADRIANI SENATUSCONSULTA. Nunmerous sestill effect and the offspring of such cohabitation natustonssulta were passed in the reign of Hadrian,
vwas a slave. The fact of this clause of the Lex but there does not appear to be any which is called
rerlnainig in force after the enacting of the Sena- Hadrianum. Many Senatusconsulta of this reign
tiesconlsultum, appears to be an instance of the are referred to by Gains as " Senatusconsulta aucstrict interpretation which the Roman Jurists ap- tore Hadriano facta," i. 47, &c., of which there is
plied to positive enactments; for the Senatuscon- a list in the Index to Gaius. The Senatusconsulta
sultirn of Hadrian as stated by Gaius only applied made in the reign of Hadrian are enumerated by
toi the case of a contract between the master's Bachius, and some of them are noticed here under
slave and the woman, and therefore its terms did their proper designations.
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