The History of Rome, Book IV - Theodor Mommsen
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Sullan -Quaestiones-
Sulla's leading reforms were of a threefold character. First, he
very considerably increased the number of the jury-courts. There
were henceforth separate judicial commissions for exactions; for
murder, including arson and perjury; for bribery at elections; for
high treason and any dishonour done to the Roman name; for the most
heinous cases of fraud--the forging of wills and of money; for
adultery; for the most heinous violations of honour, particularly
for injuries to the person and disturbance of the domestic peace;
perhaps also for embezzlement of public moneys, for usury and other
crimes; and at least the greater number of these courts were either
found in existence or called into life by Sulla, and were provided
by him with special ordinances setting forth the crime and form of
criminal procedure. The government, moreover, was not deprived of
the right to appoint in case of emergency special courts for
particular groups of crimes. As a result of these arrangements,
the popular tribunals were in substance done away with, processes
of high treason in particular were consigned to the new high treason
commission, and the ordinary jury procedure was considerably
restricted, for the more serious falsifications and injuries were
withdrawn from it. Secondly, as respects the presidency of the courts,
six praetors, as we have already mentioned, were now available for
the superintendence of the different jury-courts, and to these were
added a number of other directors in the care of the commission
which was most frequently called into action--that for dealing with
murder. Thirdly, the senators were once more installed in the
office of jurymen in room of the Gracchan equites.
The political aim of these enactments--to put an end to the share
which the equites had hitherto had in the government--is clear as
day; but it as little admits of doubt, that these were not mere
measures of a political tendency, but that they formed the first
attempt to amend the Roman criminal procedure and criminal law, which
had since the struggle between the orders fallen more and more into
confusion. From this Sullan legislation dates the distinction--
substantially unknown to the earlier law--between civil and criminal
causes, in the sense which we now attach to these expressions;
henceforth a criminal cause appears as that which comes before the
bench of jurymen under the presidency of the praetor, a civil cause
as the procedure, in which the juryman or jurymen do not discharge
their duties under praetorian presidency. The whole body of the
Sullan ordinances as to the -quaestiones- may be characterized
at once as the first Roman code after the Twelve Tables, and as
the first criminal code ever specially issued at all. But in
the details also there appears a laudable and liberal spirit.
Singular as it may sound regarding the author of the proscriptions,
it remains nevertheless true that he abolished the punishment
of death for political offences; for, as according to the Roman
custom which even Sulla retained unchanged the people only, and
not the jury-commission, could sentence to forfeiture of life or
to imprisonment,(38) the transference of processes of high treason
from the burgesses to a standing commission amounted to the abolition
of capital punishment for such offences. On the other hand, the
restriction of the pernicious special commissions for particular cases
of high treason, of which the Varian commission(39) in the Social war
had been a specimen, likewise involved an improvement. The whole
reform was of singular and lasting benefit, and a permanent monument
of the practical, moderate, statesmanly spirit, which made its author
well worthy, like the old decemvirs, to step forward between the
parties as sovereign mediator with his code of law.
Police Laws
We may regard as an appendix to these criminal laws the police
ordinances, by which Sulla, putting the law in place of the censor,
again enforced good discipline and strict manners, and, by
establishing new maximum rates instead of the old ones which
had long been antiquated, attempted to restrain luxury at banquets,
funerals, and otherwise.
The Roman Municipal System
Lastly, the development of an independent Roman municipal system
was the work, if not of Sulla, at any rate of the Sullan epoch.
The idea of organically incorporating the community as a subordinate
political unit in the higher unity of the state was originally
foreign to antiquity; the despotism of the east knew nothing of urban
commonwealths in the strict sense of the word, and city and state
were throughout the Helleno-Italic world necessarily coincident.
In so far there was no proper municipal system from the outset either
in Greece or in Italy. The Roman polity especially adhered to this
view with its peculiar tenacious consistency; even in the sixth
century the dependent communities of Italy were either, in order to
their keeping their municipal constitution, constituted as formally
sovereign states of non-burgesses, or, if they obtained the Roman
franchise, were--although not prevented from organizing themselves
as collective bodies--deprived of properly municipal rights, so that
in all burgess-colonies and burgess--municipia- even the administration
of justice and the charge of buildings devolved on the Roman praetors
and censors. The utmost to which Rome consented was to allow at
least the most urgent lawsuits to be settled on the spot by a
deputy (-praefectus-) of the praetor nominated from Rome.(40)
The provinces were similarly dealt with, except that the governor
there came in place of the authorities of the capital. In the free,
that is, formally sovereign towns the civil and criminal jurisdiction
was administered by the municipal magistrates according to the local
statutes; only, unless altogether special privileges stood in the
way, every Roman might either as defendant or as plaintiff request
to have his cause decided before Italian judges according to Italian
law For the ordinary provincial communities the Roman governor was
the only regular judicial authority, on whom devolved the direction
of all processes. It was a great matter when, as in Sicily, in the
event of the defendant being a Sicilian, the governor was bound by the
provincial statute to give a native juryman and to allow him to decide
according to local usage; in most of the provinces this seems to
have depended on the pleasure of the directing magistrate.
In the seventh century this absolute centralization of the public
life of the Roman community in the one focus of Rome was given up,
so far as Italy at least was concerned. Now that Italy was a
single civic community and the civic territory reached from the Arnus
and Rubico down to the Sicilian Straits,(41) it was necessary to
consent to the formation of smaller civic communities within that
larger unit. So Italy was organized into communities of full
burgesses; on which occasion also the larger cantons that were
dangerous from their size were probably broken up, so far as this
had not been done already, into several smaller town-districts.(42)
The position of these new communities of full burgesses was a compromise
between that which had belonged to them hitherto as allied states,
and that which by the earlier law would have belonged to them as
integral parts of the Roman community. Their basis was in general
the constitution of the former formally sovereign Latin community, or,
so far as their constitution in its principles resembled the Roman,
that of the Roman old-patrician-consular community; only care was
taken to apply to the same institutions in the -municipium- names
different from, and inferior to, those used in the capital, or,
in other words, in the state. A burgess-assembly was placed at
the head, with the prerogative of issuing municipal statutes and
nominating the municipal magistrates. A municipal council of a
hundred members acted the part of the Roman senate. The administration
of justice was conducted by four magistrates, two regular judges
corresponding to the two consuls, and two market-judges corresponding
to the curule aediles. The functions of the censorship, which
recurred, as in Rome, every five years and, to all appearance,
consisted chiefly in the superintendence of public buildings, were also
undertaken by the supreme magistrates of the community, namely the
ordinary -duumviri-, who in this case assumed the distinctive title
of -duumviri- "with censorial or quinquennial power." The municipal
funds were managed by two quaestors. Religious functions primarily
devolved on the two colleges of men of priestly lore alone known to
the earliest Latin constitution, the municipal pontifices and augurs.
Relation of the -Municipium- to the State
With reference to the relation of this secondary political organism
to the primary organism of the state, political prerogatives in
general belonged completely to the former as well as to the latter,
and consequently the municipal decree and the -imperium- of the
municipal magistrates bound the municipal burgess just as the
decree of the people and the consular -imperium- bound the Roman.
This led, on the whole, to a co-ordinate exercise of power by the
authorities of the state and of the town; both had, for instance,
the right of valuation and taxation, so that in the case of any
municipal valuations and taxes those prescribed by Rome were not
taken into account, and vice versa; public buildings might be
instituted both by the Roman magistrates throughout Italy and by
the municipal authorities in their own district, and so in other
cases. In the event of collision, of course the community yielded
to the state and the decree of the people invalidated the municipal
decree. A formal division of functions probably took place only in
the administration of justice, where the system of pure co-ordination
would have led to the greatest confusion. In criminal procedure
presumably all capital causes, and in civil procedure those more
difficult cases which presumed an independent action on the part
of the directing magistrate, were reserved for the authorities and
jurymen of the capital, and the Italian municipal courts were
restricted to the minor and less complicated lawsuits, or to those
which were very urgent.
Rise of the -Municipium-
The origin of this Italian municipal system has not been recorded
by tradition. It is probable that its germs may be traced to
exceptional regulations for the great burgess-colonies, which were
founded at the end of the sixth century;(43) at least several, in
themselves indifferent, formal differences between burgess-colonies
and burgess--municipia- tend to show that the new burgess-colony,
which at that time practically took the place of the Latin, had
originally a better position in state-law than the far older burgess-
-municipium-, and the advantage doubtless can only have consisted in a
municipal constitution approximating to the Latin, such as afterwards
belonged to all burgess-colonies and burgess--municipia-. The new
organization is first distinctly demonstrable for the revolutionary
colony of Capua;(44) and it admits of no doubt that it was first
fully applied, when all the hitherto sovereign towns of Italy had
to be organized, in consequence of the Social war, as burgess-
communities. Whether it was the Julian law, or the censors of 668,
or Sulla, that first arranged the details, cannot be determined:
the entrusting of the censorial functions to the -duumviri- seems
indeed to have been introduced after the analogy of the Sullan
ordinance superseding the censorship, but may be equally well
referred to the oldest Latin constitution to which also the
censorship was unknown. In any case this municipal constitution--
inserted in, and subordinate to, the state proper--is one of the
most remarkable and momentous products of the Sullan period, and
of the life of the Roman state generally. Antiquity was certainly
as little able to dovetail the city into the state as to develop
of itself representative government and other great principles of
our modern state-life; but it carried its political development
up to those limits at which it outgrows and bursts its assigned
dimensions, and this was the case especially with Rome, which in
every respect stands on the line of separation and connection between
the old and the new intellectual worlds. In the Sullan constitution
the primary assembly and the urban character of the commonwealth
of Rome, on the one hand, vanished almost into a meaningless form;
the community subsisting within the state on the other hand was
already completely developed in the Italian -municipium-. Down
to the name, which in such cases no doubt is the half of the matter,
this last constitution of the free republic carried out the
representative system and the idea of the state built upon the
basis of the municipalities.
The municipal system in the provinces was not altered by this
movement; the municipal authorities of the non-free towns continued--
special exceptions apart--to be confined to administration and
police, and to such jurisdiction as the Roman authorities did
not prefer to take into their own hands.
Impression Produced by the Sullan Reorganization
Opposition of the Officers
Such was the constitution which Lucius Cornelius Sulla gave to
the commonwealth of Rome. The senate and equestrian order, the
burgesses and proletariate, Italians and provincials, accepted it
as it was dictated to them by the regent, if not without grumbling,
at any rate without rebelling: not so the Sullan officers. The Roman
army had totally changed its character. It had certainly been
rendered by the Marian reform more ready for action and more
militarily useful than when it did not fight before the walls of
Numantia; but it had at the same time been converted from a burgess-
force into a set of mercenaries who showed no fidelity to the state
at all, and proved faithful to the officer only if he had the skill
personally to gain their attachment. The civil war had given fearful
evidence of this total revolution in the spirit of the army: six
generals in command, Albinus,(45) Cato,(46) Rufus,(47) Flaccus,(48)
Cinna,(49) and Gaius Carbo,(50) had fallen during its course by the
hands of their soldiers: Sulla alone had hitherto been able to
retain the mastery of the dangerous crew, and that only, in fact,
by giving the rein to all their wild desires as no Roman general
before him had ever done. If the blame of destroying the old
military discipline is on this account attached to him, the
censure is not exactly without ground, but yet without justice;
he was indeed the first Roman magistrate who was only enabled to
discharge his military and political task by coming forward as a
-condottiere-. He had not however taken the military dictatorship
for the purpose of making the state subject to the soldiery, but
rather for the purpose of compelling everything in the state, and
especially the army and the officers, to submit once more to the
authority of civil order. When this became evident, an opposition
arose against him among his own staff. The oligarchy might play
the tyrant as respected other citizens; but that the generals also,
who with their good swords had replaced the overthrown senators in
their seats, should now be summoned to yield implicit obedience to
this very senate, seemed intolerable. The very two officers in
whom Sulla had placed most confidence resisted the new order of
things. When Gnaeus Pompeius, whom Sulla had entrusted with the
conquest of Sicily and Africa and had selected for his son-in-law,
after accomplishing his task received orders from the senate to
dismiss his army, he omitted to comply and fell little short
of open insurrection.
Quintus Ofella, to whose firm perseverance in front of Praeneste
the success of the last and most severe campaign was essentially
due in equally open violation of the newly issued ordinances became
a candidate for the consulship without having held the inferior
magistracies. With Pompeius there was effected, if not a cordial
reconciliation, at any rate a compromise. Sulla, who knew his man
sufficiently not to fear him, did not resent the impertinent remark
which Pompeius uttered to his face, that more people concerned
themselves with the rising than with the setting sun; and accorded
to the vain youth the empty marks of honour to which his heart
clung.(51) If in this instance he appeared lenient, he showed on
the other hand in the case of Ofella that he was not disposed to
allow his marshals to take advantage of him; as soon as the latter
had appeared unconstitutionally as candidate, Sulla had him cut down
in the public market-place, and then explained to the assembled citizens
that the deed was done by his orders and the reason for doing it.
So this significant opposition of the staff to the new order of things
was no doubt silenced for the present; but it continued to subsist
and furnished the practical commentary on Sulla's saying, that what
he did on this occasion could not be done a second time.
Re-establishment of Constitutional Order
One thing still remained--perhaps the most difficult of all:
to bring the exceptional state of things into accordance with
the paths prescribed by the new or old laws. It was facilitated
by the circumstance, that Sulla never lost sight of this as his
ultimate aim. Although the Valerian law gave him absolute power
and gave to each of his ordinances the force of law, he had nevertheless
availed himself of this extraordinary prerogative only in the case of
measures, which were of transient importance, and to take part in
which would simply have uselessly compromised the senate and burgesses,
especially in the case of the proscriptions.
Sulla Resigns the Regency
Ordinarily he had himself observed those regulations, which he
prescribed for the future. That the people were consulted, we read
in the law as to the quaestors which is still in part extant; and the
same is attested of other laws, e. g. the sumptuary law and those
regarding the confiscation of domains. In like manner the senate
was previously consulted in the more important administrative acts,
such as in the sending forth and recall of the African army and in
the conferring of the charters of towns. In the same spirit Sulla
caused consuls to be elected even for 673, through which at least
the odious custom of dating officially by the regency was avoided;
nevertheless the power still lay exclusively with the regent, and
the election was directed so as to fall on secondary personages.
But in the following year (674) Sulla revived the ordinary constitution
in full efficiency, and administered the state as consul in concert
with his comrade in arms Quintus Metellus, retaining the regency, but
allowing it for the time to lie dormant. He saw well how dangerous
it was for his own very institutions to perpetuate the military
dictatorship. When the new state of things seemed likely to hold
its ground and the largest and most important portion of the
new arrangements had been completed, although various matters,
particularly in colonization, still remained to be done, he allowed
the elections for 675 to have free course, declined re-election to
the consulship as incompatible with his own ordinances, and at the
beginning of 675 resigned the regency, soon after the new consuls
Publius Servilius and Appius Claudius had entered on office. Even
callous hearts were impressed, when the man who had hitherto dealt
at his pleasure with the life and property of millions, at whose nod
so many heads had fallen, who had mortal enemies dwelling in every
street of Rome and in every town of Italy, and who without an ally
of equal standing and even, strictly speaking, without the support
of a fixed party had brought to an end his work of reorganizing
the state, a work offending a thousand interests and opinions--when
this man appeared in the market-place of the capital, voluntarily
renounced his plenitude of power, discharged his armed attendants,
dismissed his lictors, and summoned the dense throng of burgesses to
speak, if any one desired from him a reckoning. All were silent: Sulla
descended from the rostra, and on foot, attended only by his friends,
returned to his dwelling through the midst of that very populace which
eight years before had razed his house to the ground.
Character of Sulla
Posterity has not justly appreciated either Sulla himself or his work
of reorganization, as indeed it is wont to judge unfairly of persons
who oppose themselves to the current of the times. In fact Sulla
is one of the most marvellous characters--we may even say a unique
phenomenon--in history. Physically and mentally of sanguine
temperament, blue-eyed, fair, of a complexion singularly white but
blushing with every passionate emotion--though otherwise a handsome
man with piercing eyes--he seemed hardly destined to be of more
moment to the state than his ancestors, who since the days of his
great-great-grandfather Publius Cornelius Rufinus (consul in 464, 477),
one of the most distinguished generals and at the same time the
most ostentatious man of the times of Pyrrhus, had remained in second-
rate positions. He desired from life nothing but serene enjoyment.
Reared in the refinement of such cultivated luxury as was at that
time naturalized even in the less wealthy senatorial families of
Rome, he speedily and adroitly possessed himself of all the fulness of
sensuous and intellectual enjoyments which the combination of Hellenic
polish and Roman wealth could secure. He was equally welcome as a
pleasant companion in the aristocratic saloon and as a good comrade
in the tented field; his acquaintances, high and low, found in him a
sympathizing friend and a ready helper in time of need, who gave his
gold with far more pleasure to his embarrassed comrade than to his
wealthy creditor. Passionate was his homage to the wine-cup, still
more passionate to women; even in his later years he was no longer
the regent, when after the business of the day was finished he
took his place at table. A vein of irony--we might perhaps say
of buffoonery--pervaded his whole nature. Even when regent he gave
orders, while conducting the public sale of the property of the
proscribed, that a donation from the spoil should be given to the
author of a wretched panegyric which was handed to him, on condition
that the writer should promise never to sing his praises again.
When he justified before the burgesses the execution of Ofella,
he did so by relating to the people the fable of the countryman and
the lice. He delighted to choose his companions among actors, and
was fond of sitting at wine not only with Quintus Roscius--the Roman
Talma--but also with far inferior players; indeed he was himself not
a bad singer, and even wrote farces for performance within his own
circle. Yet amidst these jovial Bacchanalia he lost neither bodily
nor mental vigour, in the rural leisure of his last years he was
still zealously devoted to the chase, and the circumstance that he
brought the writings of Aristotle from conquered Athens to Rome
attests withal his interest in more serious reading. The specific
type of Roman character rather repelled him. Sulla had nothing
of the blunt hauteur which the grandees of Rome were fond of
displaying in presence of the Greeks, or of the pomposity of
narrow-minded great men; on the contrary he freely indulged his
humour, appeared, to the scandal doubtless of many of his countrymen,
in Greek towns in the Greek dress, or induced his aristocratic
companions to drive their chariots personally at the games.
He retained still less of those half-patriotic, half-selfish hopes,
which in countries of free constitution allure every youth of talent
into the political arena, and which he too like all others probably
at one time felt. In such a life as his was, oscillating between
passionate intoxication and more than sober awaking, illusions are
speedily dissipated. Wishing and striving probably appeared to him
folly in a world which withal was absolutely governed by chance, and
in which, if men were to strive after anything at all, this chance
could be the only aim of their efforts. He followed the general
tendency of the age in addicting himself at once to unbelief and
to superstition. His whimsical credulity was not the plebeian
superstition of Marius, who got a priest to prophesy to him for money
and determined his actions accordingly; still less was it the sullen
belief of the fanatic in destiny; it was that faith in the absurd,
which necessarily makes its appearance in every man who has out and
out ceased to believe in a connected order of things--the superstition
of the fortunate player, who deems himself privileged by fate to throw
on each and every occasion the right number. In practical questions
Sulla understood very well how to satisfy ironically the demands of
religion. When he emptied the treasuries of the Greek temples, he
declared that the man could never fail whose chest was replenished
by the gods themselves. When the Delphic priests reported to him
that they were afraid to send the treasures which he asked, because
the harp of the god emitted a clear sound when they touched it,
he returned the reply that they might now send them all the more
readily, as the god evidently approved his design. Nevertheless
he fondly flattered himself with the idea that he was the chosen
favourite of the gods, and in an altogether special manner of that
goddess, to whom down to his latest years he assigned the pre-
eminence, Aphrodite. In his conversations as well as in his
autobiography he often plumed himself on the intercourse which
the immortals held with him in dreams and omens. He had more right
than most men to be proud of his achievements he was not so, but he
was proud of his uniquely faithful fortune. He was wont to say that
every improvised enterprise turned out better with him than those
which were systematically planned; and one of his strangest whims--
that of regularly stating the number of those who had fallen on his
side in battle as nil--was nothing but the childishness of a child of
fortune. It was but the utterance of his natural disposition, when,
having reached the culminating point of his career and seeing all
his contemporaries at a dizzy depth beneath him, he assumed the
designation of the Fortunate--Sulla Felix--as a formal surname,
and bestowed corresponding appellations on his children,