The History of Rome, Book IV

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,257 that of the custodiers of oracles from ten,258 to fifteen each, and that of the banquet-masters from three259 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,260 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;261 the standing commissional tribunals, such as had been appointed for exactions,262 for poisoning and murder,263 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.264 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.

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,265 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 commission266 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.267 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,268 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.269 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;270 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;271 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,272 Cato,273 Rufus,274 Flaccus,275 Cinna,276 and Gaius Carbo,277 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.278 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.