The History of Rome, Book V - Theodor Mommsen
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The New Court
The New Patrician Nobility
But, whatever may have been the definitive title present to his thoughts
the sovereign ruler was there, and accordingly the court
established itself at once with all its due accompaniments of pomp,
insipidity, and emptiness. Caesar appeared in public not in the robe
of the consuls which was bordered with purple stripes,
but in the robe wholly of purple which was reckoned in antiquity
as the proper regal attire, and received, seated on his golden chair
and without rising from it, the solemn procession of the senate.
The festivals in his honour commemorative of birthday, of victories,
and of vows, filled the calendar. When Caesar came to the capital,
his principal servants marched forth in troops to great distances
so as to meet and escort him. To be near to him began to be
of such importance, that the rents rose in the quarter of the city
where he dwelt. Personal interviews with him were rendered
so difficult by the multitude of individuals soliciting audience,
that Caesar found himself compelled in many cases to communicate
even with his intimate friends in writing, and that persons
even of the highest rank had to wait for hours in the antechamber.
People felt, more clearly than was agreeable to Caesar himself,
that they no longer approached a fellow-citizen. There arose
a monarchical aristocracy, which was in a remarkable manner at once
new and old, and which had sprung out of the idea of casting
into the shade the aristocracy of the oligarchy by that of royalty,
the nobility by the patriciate. The patrician body still subsisted,
although without essential privileges as an order, in the character
of a close aristocratic guild;(19) but as it could receive
no new -gentes-(20) it had dwindled away more and more in the course
of centuries, and in the time of Caesar there were not more than
fifteen or sixteen patrician -gentes- still in existence.
Caesar, himself sprung from one of them, got the right
of creating new patrician -gentes- conferred on the Imperator
by decree of the people, and so established, in contrast
to the republican nobility, the new aristocracy of the patriciate,
which most happily combined all the requisites of a monarchical
aristocracy--the charm of antiquity, entire dependence
on the government, and total insignificance. On all sides
the new sovereignty revealed itself.
Under a monarch thus practically unlimited there could hardly
be scope for a constitution at all--still less for a continuance
of the hitherto existing commonwealth based on the legal co-operation
of the burgesses, the senate, and the several magistrates. Caesar fully
and definitely reverted to the tradition of the regal period;
the burgess-assembly remained--what it had already been, in that period--
by the side of and with the king the supreme and ultimate expression
of the will of the sovereign people; the senate was brought back
to its original destination of giving advice to the ruler
when he requested it; and lastly the ruler concentrated in his person
anew the whole magisterial authority, so that there existed no other
independent state-official by his side any more than by the side
of the kings of the earliest times.
Legislation
Edicts
For legislation the democratic monarch adhered to the primitive maxim
of Roman state-law, that the community of the people in concert
with the king convoking them had alone the power of organically
regulating the commonwealth; and he had his constitutive enactments
regularly sanctioned by decree of the people. The free energy
and the authority half-moral, half-political, which the yea or nay
of those old warrior-assemblies had carried with it, could not indeed
be again instilled into the so-called comitia of this period;
the co-operation of the burgesses in legislation, which in the old
constitution had been extremely limited but real and living,
was in the new practically an unsubstantial shadow. There was therefore
no need of special restrictive measures against the comitia;
many years' experience had shown that every government--
the oligarchy as well as the monarch--easily kept on good terms
with this formal sovereign. These Caesarian comitia were an important
element in the Caesarian system and indirectly of practical significance,
only in so far as they served to retain in principle the sovereignty
of the people and to constitute an energetic protest against sultanism.
But at the same time--as is not only obvious of itself, but is also
distinctly attested--the other maxim also of the oldest state-law
was revived by Caesar himself, and not merely for the first time
by his successors; viz. that what the supreme, or rather sole,
magistrate commands is unconditionally valid so long as he remains
in office, and that, while legislation no doubt belongs only to the king
and the burgesses in concert, the royal edict is equivalent to law
at least till the demission of its author.
The Senate as the State-Council of the Monarch
While the democratic king thus conceded to the community of the people
at least a formal share in the sovereignty, it was by no means
his intention to divide his authority with what had hitherto been
the governing body, the college of senators. The senate of Caesar
was to be--in a quite different way from the later senate of Augustus--
nothing but a supreme council of state, which he made use
of for advising with him beforehand as to laws, and for the issuing
of the more important administrative ordinances through it,
or at least under its name--for cases in fact occurred where decrees
of senate were issued, of which none of the senators recited
as present at their preparation had any cognizance. There were
no material difficulties of form in reducing the senate to it
original deliberative position, which it had overstepped more de facto
than de jure; but in this case it was necessary to protect himself
from practical resistance, for the Roman senate was as much
the headquarters of the opposition to Caesar as the Attic Areopagus
was of the opposition to Pericles. Chiefly for this reason
the number of senators, which had hitherto amounted at most
to six hundred in its normal condition(21) and had been greatly reduced
by the recent crises, was raised by extraordinary supplement
to nine hundred; and at the same time, to keep it at least
up to this mark, the number of quaestors to be nominated annually,
that is of members annually admitted to the senate, was raised
from twenty to forty.(22) The extraordinary filling up of the senate
was undertaken by the monarch alone. In the case of the ordinary
additions he secured to himself a permanent influence through
the circumstance, that the electoral colleges were bound by law(23)
to give their votes to the first twenty candidates for the quaestorship
who were provided with letters of recommendation from the monarch;
besides, the crown was at liberty to confer the honorary rights
attaching to the quaestorship or to any office superior to it,
and consequently a seat in the senate in particular, by way of exception
even on individuals not qualified. The selection of the extraordinary
members who were added naturally fell in the main on adherents
of the new order of things, and introduced, along with -equites-
of respectable standing, various dubious and plebeian personages
into the proud corporation--former senators who had been erased
from the roll by the censor or in consequence of a judicial sentence,
foreigners from Spain and Gaul who had to some extent to learn
their Latin in the senate, men lately subaltern officers
who had not previously received even the equestrian ring,
sons of freedmen or of such as followed dishonourable trades,
and other elements of a like kind. The exclusive circles
of the nobility, to whom this change in the personal composition
of the senate naturally gave the bitterest offence, saw in it
an intentional depreciation of the very institution itself.
Caesar was not capable of such a self-destructive policy;
he was as determined not to let himself be governed by his council
as he was convinced of the necessity of the institute in itself.
They might more correctly have discerned in this proceeding the intention
of the monarch to take away from the senate its former character
of an exclusive representation of the oligarchic aristocracy,
and to make it once more--what it had been in the regal period--
a state-council representing all classes of persons belonging
to the state through their most intelligent elements, and not necessarily
excluding the man of humble birth or even the foreigner; just as those
earliest kings introduced non-burgesses,(24) Caesar introduced
non-Italians into his senate.
Personal Government by Caesar
While the rule of the nobility was thus set aside and its existence
undermined, and while the senate in its new form was merely a tool
of the monarch, autocracy was at the same time most strictly
carried out in the administration and government of the state,
and the whole executive was concentrated in the hands of the monarch.
First of all, the Imperator naturally decided in person every question
of any moment. Caesar was able to carry personal government
to an extent which we puny men can hardly conceive, and which
is not to be explained solely from the unparalleled rapidity
and decision of his working, but has moreover its ground
in a more general cause. When we see Caesar, Sulla, Gaius Gracchus,
and Roman statesmen in general displaying throughout an activity
which transcends our notions of human powers of working, the reason lies,
not in any change that human nature has undergone since that time,
but in the change which has taken place since then in the organization
of the household. The Roman house was a machine, in which even
the mental powers of the slaves and freedmen yielded their produce
to the master; a master, who knew how to govern these, worked as it were
with countless minds. It was the beau ideal of bureaucratic
centralization; which our counting-house system strives indeed
zealously to imitate, but remains as far behind its prototype
as the modern power of capital is inferior to the ancient system
of slavery. Caesar knew how to profit by this advantage;
wherever any post demanded special confidence, we see him filling it up
on principle--so far as other considerations at all permit--
with his slaves freedmen, or clients of humble birth. His works
as a whole show what an organizing genius like his could accomplish
with such an instrument; but to the question, how in detail
these marvellous feats were achieved, we have no adequate answer.
Bureaucracy resembles a manufactory also in this respect,
that the work done does not appear as that of the individual
who has worked at it, but as that of the manufactory which stamps it.
This much only is quite clear, that Caesar, in his work had no helper
at all who exerted a personal influence over it or was even so much as
initiated into the whole plan; he was not only the sole master,
but he worked also without skilled associates,
merely with common labourers.
In Matters of Finance
With respect to details as a matter of course in strictly political
affairs Caesar avoided, so far as was at all possible,
any delegation of his functions. Where it was inevitable,
as especially when during his frequent absence from Rome he had need
of a higher organ there, the person destined for this purpose was,
significantly enough, not the legal deputy of the monarch,
the prefect of the city, but a confidant without officially-recognized
jurisdiction, usually Caesar's banker, the cunning and pliant
Phoenician merchant Lucius Cornelius Balbus from Gades.
In administration Caesar was above all careful to resume the keys
of the state-chest--which the senate had appropriated to itself
after the fall of the regal power, and by means of which
it had possessed itself of the government--and to entrust them
only to those servants who with their persons were absolutely
and exclusively devoted to him. In respect of ownership indeed
the private means of the monarch remained, of course, strictly
separate from the property of the state; but Caesar took in hand
the administration of the whole financial and monetary system
of the state, and conducted it entirely in the way in which
he and the Roman grandees generally were wont to manage
the administration of their own means and substance. For the future
the levying of the provincial revenues and in the main also
the management of the coinage were entrusted to the slaves and freedmen
of the Imperator and men of the senatorial order were excluded from it--
a momentous step out of which grew in course of time the important class
of procurators and the "imperial household."
In the Governorships
Of the governorships on the other hand, which, after they had handed
their financial business over to the new imperial tax-receivers,
were still more than they had formerly been essentially military commands,
that of Egypt alone was transferred to the monarch's own retainers.
The country of the Nile, in a peculiar manner geographically isolated
and politically centralized, was better fitted than any other district
to break off permanently under an able leader from the central power,
as the attempts which had repeatedly been made by hard-pressed Italian
party-chiefs to establish themselves there during the recent crisis
sufficiently proved. Probably it was just this consideration
thatinduced Caesar not to declare the land formally a province,
but to leave the harmless Lagids there; and certainly for this reason
the legions stationed in Egypt were not entrusted to a man
belonging to the senate or, in other words, to the former government,
but this command was, just like the posts of tax-receivers,
treated as a menial office.(25) In general however the consideration
had weight with Caesar, that the soldiers of Rome should not,
like those of Oriental kings, be commanded by lackeys. It remained
the rule to entrust the more important governorships to those
who had been consuls, the less important to those who had been praetors;
and once more, instead of the five years' interval prescribed
by the law of 702,(26) the commencement of the governorship probably
was in the ancient fashion annexed directly to the close of the official
functions in the city. On the other hand the distribution
of the provinces among the qualified candidates, which had hitherto
been arranged sometimes by decree of the people or senate,
sometimes by concert among the magistrates or by lot, passed over
to the monarch. And, as the consuls were frequently induced
to abdicate before the end of the year and to make room for after-
elected consuls (-consules suffecti-); as, moreover, the number
of praetors annually nominated was raised from eight to sixteen,
and the nomination of half of them was entrusted to the Imperator
in the same way as that of the half of the quaestors; and, lastly,
as there was reserved to the Imperator the right of nominating,
if not titular consuls, at any rate titular praetors and titular
quaestors: Caesar secured a sufficient number of candidates
acceptable to him for filling up the governorships. Their recall
remained of course left to the discretion of the regent as well as
their nomination; as a rule it was assumed that the consular governor
should not remain more than two years, nor the praetorian
more than one year, in the province.
In the Administration of the Capital
Lastly, so far as concerns the administration of the city which was
his capital and residence, the Imperator evidently intended for a time
to entrust this also to magistrates similarly nominated by him.
He revived the old city-lieutenancy of the regal period;(27)
on different occasions he committed during his absence the administration
of the capital to one or more such lieutenants nominated by him
without consulting the people and for an indefinite period,
who united in themselves the functions of all the administrative
magistrates and possessed even the right of coining money
with their own name, although of course not with their own effigy
In 707 and in the first nine months of 709 there were, moreover,
neither praetors nor curule aediles nor quaestors; the consuls too
were nominated in the former year only towards its close,
and in the latter Caesar was even consul without a colleague.
This looks altogether like an attempt to revive completely
the old regal authority within the city of Rome, as far as the limits
enjoined by the democratic past of the new monarch; in other words,
of magistrates additional to the king himself, to allow only
the prefect of the city during the king's absence and the tribunes
and plebeian aediles appointed for protecting popular freedom
to continue in existence, and to abolish the consulship, the censorship,
the praetorship, the curule aedileship and the quaestorship.(28)
But Caesar subsequently departed from this; he neither accepted
the royal title himself, nor did he cancel those venerable names
interwoven with the glorious history of the republic. The consuls,
praetors, aediles, tribunes, and quaestors retained substantially
their previous formal powers; nevertheless their position
was totally altered. It was the political idea lying
at the foundation of the republic that the Roman empire was identified
with the city of Rome, and in consistency with it the municipal
magistrates of the capital were treated throughout as magistrates
of the empire. In the monarchy of Caesar that view and this consequence
of it fell into abeyance; the magistrates of Rome formed thenceforth
only the first among the many municipalities of the empire,
and the consulship in particular became a purely titular post,
which preserved a certain practical importance only in virtue
of the reversion of a higher governorship annexed to it. The fate,
which the Roman community had been wont to prepare for the vanquished,
now by means of Caesar befell itself; its sovereignty over
the Roman empire was converted into a limited communal freedom
within the Roman state. That at the same time the number
of the praetors and quaestors was doubled, has been already mentioned;
the same course was followed with the plebeian aediles, to whom
two new "corn-aediles" (-aediles Ceriales-) were added to superintend
the supplies of the capital. The appointment to those offices remained
with the community, and was subject to no restriction as respected
the consuls and perhaps also the tribunes of the people
and plebeian aediles; we have already adverted to the fact,
that the Imperator reserved a right of proposal binding on the electors
as regards the half of the praetors, curule aediles, and quaestors
to be annually nominated. In general the ancient and hallowed
palladia of popular freedom were not touched; which, of course,
did not prevent the individual refractory tribune of the people
from being seriously interfered with and, in fact, deposed and erased
from the roll of senators.
As the Imperator was thus, for the more general and more important
questions, his own minister; as he controlled the finances
by his servants, and the army by his adjutants; and as the old republican
state-magistracies were again converted into municipal magistracies
of the city of Rome; the autocracy was sufficiently established.
The State-Hierarchy
In the spiritual hierarchy on the other hand Caesar, although he issued
a detailed law respecting this portion of the state-economy,
made no material alteration, except that he connected with the person
of the regent the supreme pontificate and perhaps also the membership
of the higher priestly colleges generally; and, partly
in connection with this, one new stall was created in each
of the three supreme colleges, and three new stalls in the fourth college
of the banquet-masters. If the Roman state-hierarchy had hitherto
served as a support to the ruling oligarchy, it might render
precisely the same service to the new monarchy. The conservative
religious policy of the senate was transferred to the new kings of Rome;
when the strictly conservative Varro published about this time
his "Antiquities of Divine Things," the great fundamental
repository of Roman state-theology, he was allowed to dedicate it
to the -Pontifex Maximus- Caesar. The faint lustre which the worship
of Jovis was still able to impart shone round the newly-established
throne; and the old national faith became in its last stages
the instrument of a Caesarian papacy, which, however,
was from the outset but hollow and feeble.
Regal Jurisdiction
In judicial matters, first of all, the old regal jurisdiction
was re-established. As the king had originally been judge in criminal
and civil causes, without being legally bound in the former
to respect an appeal to the prerogative of mercy in the people,
or in the latter to commit the decision of the question in dispute
to jurymen; so Caesar claimed the right of bringing capital causes
as well as private processes for sole and final decision to his own bar,
and disposing of them in the event of his presence personally,
in the event of his absence by the city-lieutenant. In fact,
we find him, quite after the manner of the ancient kings, now sitting
in judgment publicly in the Forum of the capital on Roman burgesses
accused of high treason, now holding a judicial inquiry, in his house
regarding the client princes accused of the like crime;
so that the only privilege, which the Roman burgesses had as compared
with the other subjects of the king, seems to have consisted
in the publicity of the judicial procedure. But this resuscitated
supreme jurisdiction of the kings, although Caesar discharged its duties
with impartiality and care, could only from the nature of the case
find practical application in exceptional cases.
Retention of the Previous Administration of Justice
For the usual procedure in criminal and civil causes the former
republican mode of administering justice was substantially retained.
Criminal causes were still disposed of as formerly before the different
jury-commissions competent to deal with the several crimes,
civil causes partly before the court of inheritance or,
as it was commonly called, of the -centumviri-, partly before
the single -iudices-; the superintendence of judicial proceedings
was as formerly conducted in the capital chiefly by the praetors,
in the provinces by the governors. Political crimes too continued
even under the monarchy to be referred to a jury-commission;
the new ordinance, which Caesar issued respecting them, specified
the acts legally punishable with precision and in a liberal spirit
which excluded all prosecution of opinions, and it fixed
as the penalty not death, but banishment. As respects the selection
of the jurymen, whom the senatorial party desired to see chosen
exclusively from the senate and the strict Gracchans exclusively
from the equestrian order, Caesar, faithful to the principle
of reconciling the parties, left the matter on the footing
of the compromise-law of Cotta,(29) but with the modification--
for which the way was probably prepared by the law of Pompeius
of 699(30)-that the -tribuni aerarii- who came from the lower ranks
of the people were set aside; so that there was established a rating
for jurymen of at least 400,000 sesterces (4000 pounds), and senators
and equites now divided the functions of jurymen which had so long
been an apple of discord between them.
Appeal to the Monarch
The relations of the regal and the republican jurisdiction were
on the whole co-ordinate, so that any cause might be initiated as well
before the king's bar as before the competent republican tribunal,
the latter of course in the event of collision giving way;
if on the other hand the one or the other tribunal had pronounced
sentence, the cause was thereby finally disposed of. To overturn
a verdict pronounced by the jurymen duly called to act in a civil
or in a criminal cause even the new ruler was not entitled,
except where special incidents, such as corruption or violence,
already according to the law of the republic gave occasion
for cancelling the jurymen's sentence. On the other hand
the principle that, as concerned any decree emanating merely
from magistrates, the person aggrieved by it was entitled to appeal
to the superior of the decreeing authority, probably obtained
even now the great extension, out of which the subsequent imperial
appellate jurisdiction arose; perhaps all the magistrates
administering law, at least the governors of all the provinces,
were regarded so far as subordinates of the ruler, that appeal
to him might be lodged from any of their decrees.
Decay of the Judicial System
Certainly these innovations, the most important of which--
the general extension given to appeal--cannot even be reckoned
absolutely an improvement, by no means healed thoroughly the evils
from which the Roman administration of justice was suffering.
Criminal procedure cannot be sound in any slave-state, inasmuch as
the task of proceeding against slaves lies, if not de jure,
at least de facto in the hands of the master. The Roman master,
as may readily be conceived, punished throughout the crime of his serf,
not as a crime, but only so far as it rendered the slave useless
or disagreeable to him; slave criminals were merely drafted off
somewhat like oxen addicted to goring, and, as the latter
were sold to the butcher, so were the former sold to the fencing-booth.
But even the criminal procedure against free men, which had been
from the outset and always in great part continued to be
a political process, had amidst the disorder of the last generations
become transformed from a grave legal proceeding into a faction-
fight to be fought out by means of favour, money, and violence.
The blame rested jointly on all that took part in it, on the magistrates,
the jury, the parties, even the public who were spectators;
but the most incurable wounds were inflicted on justice by the doings
of the advocates. In proportion as the parasitic plant
of Roman forensic eloquence flourished, all positive ideas of right
became broken up; and the distinction, so difficult of apprehension
by the public, between opinion and evidence was in reality
expelled from the Roman criminal practice. "A plain simple defendant,"
says a Roman advocate of much experience at this period, "may be accused
of any crime at pleasure which he has or has not committed, and will be
certainly condemned." Numerous pleadings in criminal causes
have been preserved to us from this epoch; there is hardly one of them
which makes even a serious attempt to fix the crime in question
and to put into proper shape the proof or counterproof.(31)
That the contemporary civil procedure was likewise in various respects
unsound, we need hardly mention; it too suffered from the effects
of the party politics mixed up with all things, as for instance
in the process of Publius Quinctius (671-673), where the most
contradictory decisions were given according as Cinna or Sulla
had the ascendency in Rome; and the advocates, frequently non-jurists,
produced here also intentionally and unintentionally abundance
of confusion. But it was implied in the nature of the case,
that party mixed itself up with such matters only by way of exception,
and that here the quibbles of advocates could not so rapidly or so deeply
break up the ideas of right; accordingly the civil pleadings
which we possess from this epoch, while not according
to our stricter ideas effective compositions for their purpose,
are yet of a far less libellous and far more juristic character
than the contemporary speeches in criminal causes. If Caesar permitted
the curb imposed on the eloquence of advocates by Pompeius(32)
to remain, or even rendered it more severe, there was at least
nothing lost by this; and much was gained, when better selected
and better superintended magistrates and jurymen were nominated
and the palpable corruption and intimidation of the courts
came to an end. But the sacred sense of right and the reverence
for the law, which it is difficult to destroy in the minds
of the multitude, it is still more difficult to reproduce.
Though the legislator did away with various abuses, he could not heal
the root of the evil; and it might be doubted whether time,
which cures everything curable, would in this case bring relief.