The History of Rome, Book IV - Theodor Mommsen
Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47
Co-optation Restored in the Priestly Colleges
Regulating of the Qualifications for Office
Of greater moment was the participation of the burgesses in the
elections--a participation, with which they seemed not to be able to
dispense without disturbing more than Sulla's superficial restoration
could or would disturb. The interferences of the movement party in
the sacerdotal elections were set aside; not only the Domitian law
of 650, which transferred the election of the supreme priesthoods
generally to the people,(19) but also the similar older enactments
as to the -Pontifex Maximus- and the -Curio Maximus-(20) were
cancelled by Sulla, and the colleges of priests received back the
right of self-completion in its original absoluteness. In the case
of elections to the offices of state, the mode hitherto pursued was
on the whole retained; except in so far as the new regulation of
the military command to be mentioned immediately certainly involved
as its consequence a material restriction of the powers of the
burgesses, and indeed in some measure transferred the right of
bestowing the appointment of generals from the burgesses to the
senate. It does not even appear that Sulla now resumed the previously
attempted restoration of the Servian voting-arrangement;(21) whether
it was that he regarded the particular composition of the voting-
divisions as altogether a matter of indifference, or whether it was
that this older arrangement seemed to him to augment the dangerous
influence of the capitalists. Only the qualifications were restored
and partially raised. The limit of age requisite for the holding
of each office was enforced afresh; as was also the enactment that
every candidate for the consulship should have previously held the
praetorship, and every candidate for the praetorship should have
previously held the quaestorship, whereas the aedileship was
allowed to be passed over. The various attempts that had been
recently made to establish a -tyrannis- under the form of a
consulship continued for several successive years led to special
rigour in dealing with this abuse; and it was enacted that at
least two years should elapse between the holding of one magistracy
and the holding of another, and at least ten years should elapse
before the same office could be held a second time. In this
latter enactment the earlier ordinance of 412 (22) was revived,
instead of the absolute prohibition of all re-election to the
consulship, which had been the favourite idea of the most recent
ultra-oligarchical epoch.(23) On the whole, however, Sulla left
the elections to take their course, and sought merely to fetter the
power of the magistrates in such a way that--let the incalculable
caprice of the comitia call to office whomsoever it might--the person
elected should not be in a position to rebel against the oligarchy.
Weakening of the Tribunate of the People
The supreme magistrates of the state were at this period practically
the three colleges of the tribunes of the people, the consuls and
praetors, and the censors. They all emerged from the Sullan
restoration with materially diminished rights, more especially
the tribunician office, which appeared to the regent an instrument
indispensable doubtless for senatorial government, but yet--
as generated by revolution and having a constant tendency to
generate fresh revolutions in its turn--requiring to be rigorously
and permanently shackled. The tribunician authority had arisen out
of the right to annul the official acts of the magistrates by veto,
and, eventually, to fine any one who should oppose that right and to
take steps for his farther punishment; this was still left to the
tribunes, excepting that a heavy fine, destroying as a rule a man's
civil existence, was imposed on the abuse of the right of intercession.
The further prerogative of the tribune to have dealings with the
people at pleasure, partly for the purpose of bringing up accusations
and especially of calling former magistrates to account at the bar
of the people, partly for the purpose of submitting laws to the vote,
had been the lever by which the Gracchi, Saturninus, and Sulpicius
had revolutionized the state; it was not abolished, but its exercise
was probably made dependent on a permission to be previously requested
from the senate.(24) Lastly it was added that the holding of
the tribunate should in future disqualify for the undertaking of
a higher office--an enactment which, like many other points in Sulla's
restoration, once more reverted to the old patrician maxims, and,
just as in the times before the admission of the plebeians to
the civil magistracies, declared the tribunate and the curule
offices to be mutually incompatible. In this way the legislator
of the oligarchy hoped to check tribunician demagogism and to keep
all ambitious and aspiring men aloof from the tribunate, but to
retain it as an instrument of the senate both for mediating
between it and the burgesses, and, should circumstances require,
for keeping in check the magistrates; and, as the authority of the
king and afterwards of the republican magistrates over the burgesses
scarcely anywhere comes to light so clearly as in the principle
that they exclusively had the right of addressing the people,
so the supremacy of the senate, now first legally established,
is most distinctly apparent in this permission which the leader
of the people had to ask from the senate for every transaction
with his constituents.
Limitation of the Supreme Magistracy
Regulation of the Consular and Praetorian Functions before--
The Time of Sulla
The consulship and praetorship also, although viewed by the
aristocratic regenerator of Rome with a more favourable eye than
the tribunate liable in itself to be regarded with suspicion, by
no means escaped that distrust towards its own instruments which is
throughout characteristic of oligarchy. They were restricted with
more tenderness in point of form, but in a way very sensibly felt.
Sulla here began with the partition of functions. At the beginning
of this period the arrangement in that respect stood as follows.
As formerly there had devolved on the two consuls the collective
functions of the supreme magistracy, so there still devolved on them
all those official duties for which distinct functionaries had not
been by law established. This latter course had been adopted with
the administration of justice in the capital, in which the consuls,
according to a rule inviolably adhered to, might not interfere, and
with the transmarine provinces then existing--Sicily, Sardinia, and
the two Spains--in which, while the consul might no doubt exercise
his -imperium-, he did so only exceptionally. In the ordinary course
of things, accordingly, the six fields of special jurisdiction--
the two judicial appointments in the capital and the four transmarine
provinces--were apportioned among the six praetors, while there devolved
on the two consuls, by virtue of their general powers, the management
of the non-judicial business of the capital and the military command
in the continental possessions. Now as this field of general powers
was thus doubly occupied, the one consul in reality remained at the
disposal of the government; and in ordinary times accordingly those
eight supreme annual magistrates fully, and in fact amply, sufficed.
For extraordinary cases moreover power was reserved on the one
hand to conjoin the non-military functions, and on the other hand
to prolong the military powers beyond the term of their expiry
(-prorogare-). It was not unusual to commit the two judicial offices
to the same praetor, and to have the business of the capital, which
in ordinary circumstances had to be transacted by the consuls,
managed by the -praetor urbanus-; whereas, as far as possible, the
combination of several commands in the same hand was judiciously
avoided. For this case in reality a remedy was provided by the
rule that there was no interregnum in the military -imperium-, so
that, although it had its legal term, it yet continued after the
arrival of that term de jure, until the successor appeared and
relieved his predecessor of the command; or--which is the same thing--
the commanding consul or praetor after the expiry of his term of
office, if a successor did not appear, might continue to act, and was
bound to do so, in the consul's or praetor's stead. The influence
of the senate on this apportionment of functions consisted in its
having by use and wont the power of either giving effect to the
ordinary rule--so that the six praetors allotted among themselves
the six special departments and the consuls managed the continental
non-judicial business--or prescribing some deviation from it; it
might assign to the consul a transmarine command of especial importance
at the moment, or include an extraordinary military or judicial
commission--such as the command of the fleet or an important criminal
inquiry--among the departments to be distributed, and might arrange
the further cumulations and extensions of term thereby rendered
necessary. In this case, however, it was simply the demarcation of
the respective consular and praetorian functions on each occasion
which belonged to the senate, not the designation of the persons to
assume the particular office; the latter uniformly took place by
agreement among the magistrates concerned or by lot. The burgesses
in the earlier period were doubtless resorted to for the purpose
of legitimising by special decree of the community the practical
prolongation of command that was involved in the non-arrival of
relief;(25) but this was required rather by the spirit than by the
letter of the constitution, and soon the burgesses ceased from
intervention in the matter. In the course of the seventh century
there were gradually added to the six special departments already
existing six others, viz. the five new governorships of Macedonia,
Africa, Asia, Narbo, and Cilicia, and the presidency of the standing
commission respecting exactions.(26) With the daily extending sphere
of action of the Roman government, moreover, it was a case of more
and more frequent occurrence, that the supreme magistrates were
called to undertake extraordinary military or judicial commissions.
Nevertheless the number of the ordinary supreme annual magistrates
was not enlarged; and there thus devolved on eight magistrates to
be annually nominated--apart from all else--at least twelve special
departments to be annually occupied. Of course it was no mere
accident, that this deficiency was not covered once for all by
the creation of new praetorships. According to the letter of
the constitution all the supreme magistrates were to be nominated
annually by the burgesses; according to the new order or rather
disorder--under which the vacancies that arose were filled up mainly
by prolonging the term of office, and a second year was as a rule
added by the senate to the magistrates legally serving for one year,
but might also at discretion be refused--the most important and
most lucrative places in the state were filled up no longer by the
burgesses, but by the senate out of a list of competitors formed by
the burgess-elections. Since among these positions the transmarine
commands were especially sought after as being the most lucrative,
it was usual to entrust a transmarine command on the expiry of
their official year to those magistrates whom their office confined
either in law or at any rate in fact to the capital, that is, to the
two praetors administering justice in the city and frequently also
to the consuls; a course which was compatible with the nature of
prorogation, since the official authority of supreme magistrates
acting in Rome and in the provinces respectively, although differently
entered on, was not in strict state-law different in kind.
Regulation of Their Functions by Sulla
Separation of the Political and Military Authority
Cisalpine Gaul Erected into a Province
Such was the state of things which Sulla found existing, and which
formed the basis of his new arrangement. Its main principles were,
a complete separation between the political authority which governed
in the burgess-districts and the military authority which governed in
the non-burgess-districts, and an uniform extension of the duration of
the supreme magistracy from one year to two, the first of which was
devoted to civil, and the second to military affairs. Locally the
civil and the military authority had certainly been long separated
by the constitution, and the former ended at the -pomerium-, where
the latter began; but still the same man held the supreme political
and the supreme military power united in his hand. In future the
consul and praetor were to deal with the senate and burgesses, the
proconsul and propraetor were to command the army; but all military
power was cut off by law from the former, and all political action
from the latter. This primarily led to the political separation of
the region of Northern Italy from Italy proper. Hitherto they had
stood doubtless in a national antagonism, inasmuch as Northern Italy
was inhabited chiefly by Ligurians and Celts, Central and Southern
Italy by Italians; but, in a political and administrative point of
view, the whole continental territory of the Roman state from the
Straits to the Alps including the Illyrian possessions--burgess,
Latin, and non-Italian communities without exception--was in the
ordinary course of things under the administration of the supreme
magistrates who were acting in Rome, as in fact her colonial
foundations extended through all this territory. According to Sulla's
arrangement Italy proper, the northern boundary of which was at the
same time changed from the Aesis to the Rubico, was--as a region now
inhabited without exception by Roman citizens--made subject to the
ordinary Roman authorities; and it became one of the fundamental
principles of Roman state-law, that no troops and no commandant
should ordinarily be stationed in this district. The Celtic
country south of the Alps on the other hand, in which a military
command could not be dispensed with on account of the continued
incursions of the Alpine tribes, was constituted a distinct
governorship after the model of the older transmarine commands.(27)
Lastly, as the number of praetors to be nominated yearly was raised
from six to eight, the new arrangement of the duties was such, that
the ten chief magistrates to be nominated yearly devoted themselves,
during their first year of office, as consuls or praetors to
the business of the capital--the two consuls to government and
administration, two of the praetors to the administration of civil
law, the remaining six to the reorganized administration of criminal
justice--and, during their second year of office, were as proconsuls
or propraetors invested with the command in one of the ten
governorships: Sicily, Sardinia, the two Spains, Macedonia, Asia,
Africa, Narbo, Cilicia, and Italian Gaul. The already-mentioned
augmentation of the number of quaestors by Sulla to twenty was
likewise connected with this arrangement.(28)
Better Arrangement of Business
Increase of the Power of the Senate
By this plan, in the first instance, a clear and fixed rule was
substituted for the irregular mode of distributing offices hitherto
adopted, a mode which invited all manner of vile manoeuvres and
intrigues; and, secondly, the excesses of magisterial authority were
as far as possible obviated and the influence of the supreme governing
board was materially increased. According to the previous
arrangement the only legal distinction in the empire was that drawn
between the city which was surrounded by the ring-wall, and the
country beyond the -pomerium-; the new arrangement substituted for
the city the new Italy henceforth, as in perpetual peace, withdrawn
from the regular -imperium-,(29) and placed in contrast to it the
continental and transmarine territories, which were, on the other hand,
necessarily placed under military commandants--the provinces as they
were henceforth called. According to the former arrangement the
same man had very frequently remained two, and often more years in
the same office. The new arrangement restricted the magistracies
of the capital as well as the governorships throughout to one year;
and the special enactment that every governor should without fail
leave his province within thirty days after his successor's arrival
there, shows very clearly--particularly if we take along with it the
formerly-mentioned prohibition of the immediate re-election of the
late magistrate to the same or another public office--what the
tendency of these arrangements was. It was the time-honoured maxim
by which the senate had at one time made the monarchy subject to
it, that the limitation of the magistracy in point of function
was favourable to democracy, and its limitation in point of time
favourable to oligarchy. According to the previous arrangement
Gaius Marius had acted at once as head of the senate and as
commander-in-chief of the state; if he had his own unskilfulness
alone to blame for his failure to overthrow the oligarchy by means
of this double official power, care seemed now taken to prevent
some possibly wiser successor from making a better use of the
same lever. According to the previous arrangement the magistrate
immediately nominated by the people might have had a military
position; the Sullan arrangement, on the other hand, reserved
such a position exclusively for those magistrates whom the senate
confirmed in their official authority by prolonging their term
of office. No doubt this prolongation of office had now become
a standing usage; but it still--so far as respects the auspices
and the name, and constitutional form in general--continued to be
treated as an extraordinary extension of their term. This was no
matter of indifference. The burgesses alone could depose the consul
or praetor from his office; the proconsul and propraetor were
nominated and dismissed by the senate, so that by this enactment
the whole military power, on which withal everything ultimately
depended, became formally at least dependent on the senate.
Shelving of the Censorship
Lastly we have already observed that the highest of all magistracies,
the censorship, though not formally abolished, was shelved in the
same way as the dictatorship had previously been. Practically it
might certainly be dispensed with. Provision was otherwise made
for filling up the senate. From the time that Italy was practically
tax-free and the army was substantially formed by enlistment, the
register of those liable to taxation and service lost in the main
its significance; and, if disorder prevailed in the equestrian roll
or the list of those entitled to the suffrage, that disorder was
probably not altogether unwelcome. There thus remained only the current
financial functions which the consuls had hitherto discharged when,
as frequently happened, no election of censors had taken place, and
which they now took as a part of their ordinary official duties.
Compared with the substantial gain that by the shelving of the
censorship the magistracy lost its crowning dignity, it was a matter
of little moment and was not at all prejudicial to the sole dominion
of the supreme governing corporation, that--with a view to satisfy
the ambition of the senators now so much more numerous--the number
of the pontifices and that of the augurs was increased from
nine,(30) that of the custodiers of oracles from ten,(31) to fifteen
each, and that of the banquet-masters from three(32) to seven.
Regulation of the Finances
In financial matters even under the former constitution the decisive
voice lay with the senate; the only point to be dealt with, accordingly,
was the re-establishment of an orderly administration. Sulla had found
himself at first in no small difficulty as to money; the sums brought
with him from Asia Minor were soon expended for the pay of his numerous
and constantly swelling army. Even after thevictory at the Colline gate
the senate, seeing that the state-chest had been carried off to Praeneste,
had been obliged to resort to urgent measures. Various building-sites
in the capital and several portions of the Campanian domains were exposed
to sale, the client kings, the freed and allied communities, were laid
under extraordinary contribution, their landed property and their
customs-revenues were in some cases confiscated, and in others new
privileges were granted to them for money. But the residue of nearly
600,000 pounds found in the public chest on the surrender of Praeneste,
the public auctions which soon began, and other extraordinary resources,
relieved the embarrassment of the moment. Provision was made for
the future not so much by the reform in the Asiatic revenues, under
which the tax-payers were the principal gainers, and the state chest
was perhaps at most no loser, as by the resumption of the Campanian
domains, to which Aenaria was now added,(33) and above all by the
abolition of the largesses of grain, which since the time of Gaius
Gracchus had eaten like a canker into the Roman finances.
Reorganization of the Judicial System.
Previous Arrangements
Ordinary Procedure
Permanent and Special -Quaestiones-
Centumviral Court
The judicial system on the other hand was essentially revolutionized,
partly from political considerations, partly with a view to
introduce greater unity and usefulness into the previous very
insufficient and unconnected legislation on the subject. According
to the arrangements hitherto subsisting, processes fell to be decided
partly by the burgesses, partly by jurymen. The judicial cases in
which the whole burgesses decided on appeal from the judgment of
the magistrate were, down to the time of Sulla, placed in the
hands primarily of the tribunes of the people, secondarily of the
aediles, inasmuch as all the processes, through which a person
entrusted with an office or commission by the community was brought
to answer for his conduct of its affairs, whether they involved
life and limb or money-fines, had to be in the first instance dealt
with by the tribunes of the people, and all the other processes in
which ultimately the people decided, were in the first instance
adjudicated on, in the second presided over, by the curule or plebeian
aediles. Sulla, if he did not directly abolish the tribunician
process of calling to account, yet made it dependent, just like
the initiative of the tribunes in legislation, on the previous
consent of the senate, and presumably also limited in like manner
the aedilician penal procedure. On the other hand he enlarged the
jurisdiction of the jury courts. There existed at that time two
sorts of procedure before jurymen. The ordinary procedure, which
was applicable in all cases adapted according to our view for a
criminal or civil process with the exception of crimes immediately
directed against the state, consisted in this, that one of the two
praetors of the capital technically adjusted the cause and a juryman
(-iudex-) nominated by him decided it on the basis of this adjustment.
The extraordinary jury-procedure again was applicable in particular
civil or criminal cases of importance, for which, instead of
the single juryman, a special jury-court had been appointed by
special laws. Of this sort were the special tribunals constituted
for individual cases;(34) the standing commissional tribunals, such
as had been appointed for exactions,(35) for poisoning and murder,(36)
perhaps also for bribery at elections and other crimes, in the course
of the seventh century; and lastly, the two courts of the "Ten-men"
for processes affecting freedom, and the "Hundred and five," or more
briefly, the "Hundred-men," for processes affecting inheritance,
also called, from the shaft of a spear employed in all disputes
as to property, the "spear-court" (-hasta-). The court of Ten-men
(-decemviri litibus iudicandis-) was a very ancient institution for
the protection of the plebeians against their masters.(37) The period
and circumstances in which the spear-court originated are involved in
obscurity; but they must, it may be presumed, have been nearly the
same as in the case of the essentially similar criminal commissions
mentioned above. As to the presidency of these different tribunals
there were different regulations in the respective ordinances
appointing them: thus there presided over the tribunal as to
exactions a praetor, over the court for murder a president specially
nominated from those who had been aediles, over the spear-court several
directors taken from the former quaestors. The jurymen at least for
the ordinary as for the extraordinary procedure were, in accordance
with the Gracchan arrangement, taken from the non-senatorial men
of equestrian census; the selection belonged in general to the
magistrates who had the conducting of the courts, yet on such a
footing that they, in entering upon their office, had to set
forth once for all the list of jurymen, and then the jury for an
individual case was formed from these, not by free choice of the
magistrate, but by drawing lots, and by rejection on behalf of the
parties. From the choice of the people there came only the "Ten-men"
for procedure affecting freedom.