No More Learning

The 15 consulars were—Quintus Catulus, consul in 652; Marcus 97. Antonius, 655 Publius Crassus, 657 Quintus Scaevola, 659 Lucius 94. Domitius, 66o; Lucius Caesar, 664 Quintus Rufus, 666; Lucius Cinna, 88. 667-67o; Gnaeus Octavius, 667; Lucius Merula, 667; Lucius Flaccus, 668; 87. Gnaeus Carbo, 669, 670, 672; Gaius Norbanus, 671; Lucius Scipio, 671; 86. Gaius Marius, 672 of whom fourteen were killed, and one, Lucius Scipio, 84. was banished. When, on the other hand, the Livian account in Eutropius 88. (v. and Orosius 22) specifiesas swept away (conrumpti) in the Social
9) ;
5I ;
56
7
; (v.
;;
;
;
(i.
at. . . x THE SULLAN CONSTITUTION
103
of the multitude, it at any rate checked in some degree
the mere caprice of the executioners. It was not at least
to the personal resentment of the regent that the mass of
these victims were sacrificed; his furious hatred was directed
solely against the Marians, the authors of the hideous massacres of 667 and 672. By his command the tomb of 87- 82 the victor of Aquae Sextiae was broken open and his ashes
were scattered in the Anio, the monuments of his victories over Africans and Germans were overthrown, and, as death had snatched himself and his son from Sulla’s vengeance, his adopted nephew Marcus Marius Gratidianus, who had been twice praetor and was a great favourite with the Roman burgesses, was executed amid the most cruel tortures
the tomb of Catulus, who most deserved to be regretted of all the Marian victims. In other cases also death had already swept away the most notable of his opponents: of the leaders there survived only Gaius Norbanus, who laid
hands on himself at Rhodes, while the ecclerz'a was deliberat ing on his surrender; Lucius Scipio, for whom his insignifi cance and probably also his noble birth procured indulgence and permission to end his days in peace at his retreat in Massilia ; and Quintus Sertorius, who was wandering about
as an exile on the coast of Mauretania. But yet the heads of slaughtered senators were piled up at the Servilian Basin, at the point where the Vicur fugariur opened into the Forum, where the dictator had ordered them to be publicly exposed ; and among men of the second and third rank in particular death reaped a fearful harvest. In addition to those who were placed on the list for their services in or on
Strabo, whom we may certainly regard as also victims of that period, or other men whose fate is unknown to us. Of the fourteen consulars killed, three-Rufus, Cinna, and Flaccus—-fell through military revolts, while eight Sullan and three Marian consulars fell as victims to the opposite party. On a comparison of the figures given above, 50 senators and moo equites were regarded as victims of Marius, 4o senators and 1600 equites as victims of Sulla ; this furnishes a standard—at least not altogether arbitrary—for
estimating the extent of the crimes on both sides.
at
:04
THE SULLAN CONSTITUTION BOOK 1v
behalf of the revolutionary army with little discrimination, sometimes on account of money advanced to one of its officers or on account of relations of hospitality formed with such an one, the retaliation fell specially on those capitalists who had sat in judgment on the senators and had speculated in Marian confiscations—the “hoarders”; about 1600 of the equites, as they were called,1 were inscribed on the pro-
In like manner the professional accusers, the worst scourge of the nobility, who made it their trade to
bring men of the senatorial order before the equestrian courts, had now to suffer for it—“ how comes it to pass,” an advocate soon after asked, "that they have left to us the courts, when they were putting to death the accusers and judges P. ” The most savage and disgraceful passions raged without restraint for many months throughout Italy. In the capital a Celtic band was primarily charged with the executions, and Sullan soldiers and subaltem oflicers tra versed for the same purpose the different districts of Italy ; but every volunteer was also welcome, and thcflrabble high
and low pressed forward not only to earn the rewards of
murder, but also to gratify their own vindictive or covetous
dispositions under the mantle of political prosecution. It sometimes happened that the assassination did not follow, but preceded, the placing of the name on the list of the proscribed. One example shows the way in which these executions took place. At Larinum, a town of new bur gesses and favourable to Marian views, one Statius Albius Oppianicus, who had fled to Sulla’s headquarters to avoid a charge of murder, made his appearance after the victory as commissioner of the regent, deposed the magistrates of the town, installed himself and his friends in their room, and caused the person who had threatened to accuse him, along with his nearest relatives and friends, to be outlawed
l The Sextus Alfenus. frequently mentioned in Cicero's oration on behalf of Publius Quinctius, was one of these.
scription-list.
CHAP- X THE SULLAN CONSTITUTION r05
and killed. Countless persons—including not a few decided adherents of the oligarchy—thus fell as the victims of private hostility or of their own riches: the fearful confusion, and the culpable indulgence which Sulla displayed in this as in every instance towards those more closely connected with him, prevented any punishment even of the ordinary crimes that were perpetrated amidst the disorder.
The confiscated property was dealt with in a similar Confisca
Sulla from political considerations sought to induce tions. the respectable burgesses to take part in its purchase; a great portion of them, moreover, voluntarily pressed forward,
and none more zealously than the young Marcus Crassus. Under the existing circumstances the utmost depreciation
was inevitable; indeed, to some extent it was the necessary result of the Roman plan of selling the property confiscated
by the state for a round sum payable in ready money. Moreover, the regent did not forget himself; while his wife Metella mop: especially and other persons high and low closely connected with him, even freedmen and boon-com panions, were sometimes allowed to purchase without compe tition, sometimes had the purchase-money wholly or par
tially remitted. One of his freedmen, for instance, is said to have purchased a property of 6,000,000 sesterces (£60,000)
for 2000 (£20), and one of his subalterns is said to have acquired by such speculations an estate of 10,000,000 ses terces (£100,000). The indignation was great and just;
even during Sulla’s regency an advocate asked whether the nobility had waged civil war solely for the purpose of en
riching their freedmen and slaves. But in spite of this depreciation the whole proceeds of the confiscated estates amounted to not less than 3 50,000,000 sesterces (,53,500,000), which gives an approximate idea of the enormous extent of these confiscations falling chiefly on the wealthiest portion of the burgesses. It was altogether a fearful punishment. There was no longer any process or any pardon ,
way.
I06 THE SULLAN CONSTITUTION ‘00K iv
mute terror lay like a weight of lead on the land, and free speech was silenced in the market-place alike of the capital and of the country-town. The oligarchic reign of terror bore doubtless a different stamp from that of the revolution; while Marius had glutted his personal vengeance in the blood of his enemies, Sulla seemed to account terrorism in the abstract, if we may so speak, a thing necessary to the introduction of the new despotism, and to prosecute and make others prosecute the work of massacre almost with indifference. But the reign of terror presented an appearance all the more horrible, when it proceeded from the con servative side and was in some measure devoid of passion ; the commonwealth seemed all the more irretrievably lost, when the frenzy and the crime on both sides were equally balanced.
In regulating the relations of Italy and of the capital, Sulla—although he otherwise in general treated as null all
Maintai
ance of
the bur
gees-rights state-acts done during the revolution except in the trans previously
conferred.
action of current business—firmly adhered to the principle, which it had laid down, that every burgess of an Italian community was by that very fact a burgess also of Rome; the distinctions between burgesses and Italian allies, between old burgesses with better, and new burgesses with more restricted, rights, were abolished, and remained so. In the case of the freedmen alone the unrestricted right of suffrage was again withdrawn, and for them the old state of matters was restored. To the aristocratic ultras this might seem a great concession; Sulla perceived that it was necessary to wrest these mighty levers out of the hands of the revolutionary chiefs, and that the rule of the oligarchy was not materially endangered by increasing the number of the burgesses.
But with this concession in principle was combined a most rigid inquisition, conducted by special commissioners with the co-operation of the garrisons distributed throughout
CRAP. x THE SULLAN CONSTITUTION
I07
Italy, in respect to particular communities in all districts of Punish the land. Several towns were rewarded; for instance $3,938,101, Brundisium, the first community which had joined Sulla, Particular
now obtained the exemption from customs so important for such a seaport ; more were punished. The less guilty were required to pay fines, to pull down their walls, to raze their citadels ; in the case of those whose opposition had been most obstinate the regent confiscated a part of their territory, in some cases even the whole of it—as it certainly might be regarded in law as forfeited, whether they were to be treated as burgess-communities which had borne arms against their fatherland, or as allied states which had waged war with Rome contrary to their treaties of perpetual peace. In this case all the dispossessed burgesses—but these only —-were deprived of their municipal, and at the same time of the Roman, franchise, receiving in return the lowest Latin rights. 1 Sulla thus avoided furnishing the opposition with a nucleus in Italian subject-communities of inferior rights; the homeless dispossessed of necessity were soon lost in the mass of the proletariate. In Campania not only was the democratic colony of Capua done away and its domain given back to the state, as was naturally to be expected, but the island of Aenaria (Ischia) was also, probably about this time, withdrawn from the community of Neapolis. In Latium the whole territory of the large and wealthy city of Praeneste and presumably of Norba also was confiscated, as was likewise that of Spoletium
To this was added the peculiar aggravation that, while in other instances the right of the Latins, like that of the pzreg‘rini, implied membership in a definite Latin or foreign community, in this case—just as with the later freedmen of Latin and deditician rights (comp. iii. 527 n. ) -—it was without any such right of urban membership. The consequenm was, that these Latins were destitute of the privileges attaching to an urban constitution, and, strictly speaking, could not even make testa ment, since no one could execute a testament otherwise than according to the law of his town they could doubtless, however, acquire under Roman testaments, and among the living could hold dealings with each other and with Romans or Latins in the forms of Roman law.
u'
1
52.
;
a
ii.
I08 THE SULLAN CONSTITUTION 800! n
in Umbria. Sulmo in the Paelignian district was even razed. But the iron arm of the regent fell with especial weight on the two regions which had offered a serious resistance up to the end and even after the battle at the Colline gate—Etruria and Samnium. There a number of the most considerable communes, such as Florentia, Faesulae, Arretium, Volaterrae, were visited with total confiscation. Of the fate of Samnium we have already spoken ; there was no confiscation there, but the land was laid waste for ever, its flourishing towns, even the former Latin colony of Aesemia, were left in ruins, and the country was placed on the same footing with the Bruttian and
Lucanian regions.
These arrangements as to the property of the Italian soil
tions to the placed on the one hand those Roman domain-lands which
had been handed over in usufruct to the former allied communities and now on their dissolution reverted to the Roman government, and on the other hand the confiscated territories of the communities incurring punishment, at the disposal of the regent ; and he employed them for the purpose of settling thereon the soldiers of the victorious
Most of these new settlements were directed towards Etruria, as for instance to Faesulae and Arre tium, others to Latium and Campania, where Praeneste and Pompeii among other places became Sullan colonies. To repeople Samnium was, as we have said, no part of the
soldiers.
army.
regent's design.
A great part of these assignations took
place after the Gracchan mode, so that the settlers were
attached to an already-existing urban community. The
comprehensiveness of this settlement is shown by the number of land-allotments distributed, which is stated at 120,000 ; while yet some portions of land withal were otherwise applied, as in the case of the lands bestowed on the temple of Diana at Mount Tifata; others, such as the Volaterran domain and a part of the Arretine, remained
CRAP. x THE SULLAN CONSTITUTION
r09
undistributed ; others in fine, according to the old abuse legally forbidden (iii. 374) but now reviving, were taken possession of on the part of Sulla’s favourites by the right of occupation. The objects which Sulla aimed at in this colonization were of a varied kind. In the first place, he thereby redeemed the pledge given to his soldiers.
Secondly, he in so doing adopted the idea, in which the
' reform-party and the moderate conservatives concurred,
and in accordance with which he had himself as early as 666 arranged the establishment of a number of colonies -—the idea namely of augmenting the number of the small agricultural proprietors in Italy by a breaking up of the larger possessions on the part of the government; how
seriously he had this at heart is shown by the renewed prohibition of the throwing together of allotments. Lastly and'especially, he saw in these settled soldiers as it were standing garrisons, who would protect his new constitution along with their own right of property. For this reason, where the whole territory was not confiscated, as at Pompeii, the colonists were not amalgamated with the urban-com munity, but the old burgesses and the colonists were constituted as two bodies of burgesses associated within the same enclosing wall. In other respects these colonial
foundations were based, doubtless, like the older ones, on a decree of the people, but only indirectly, in so far as the regent constituted them by virtue of the clause of the Valerian law to that effect ; in reality they originated from the ruler’s plenitude of power, and so far recalled the freedom with which the former
regal authority disposed of the state-property. But, in so far as the contrast between the soldier and the burgess, which was in other instances done away by the very sending out of the soldiers or colonists, was intended to remain, and did remain, in force in the Sullan colonies even after their establishment, and
these colonists formed, as it were, the standing army of
Carnelian freedmen in Rome.
[I0 THE SULLAN CONSTITUTION B00K rv
the senate, they are not incorrectly designated, in contra distinction to the older ones, as military colonies.
Akin to this practical constituting of a standing army for the senate was the measure by which the regent selected from the slaves of the proscribed upwards of 10,000 of the youngest and most vigorous men, and manumitted them in
a body. These new Cornelians, whose civil existence was linked to the legal validity of the institutions of their patron, were designed to be a. sort of bodyguard for the oligarchy and to help it to command the city populace, on which, indeed, in the absence of a garrison everything in the capital now primarily depended.
Abolition ' /- These extraordinary supports on which the regent made
of the Gracchan institu tions.
the oligarchy primarily to rest, weak and ephemeral as they doubtless might appear even to their author, were yet its only possible buttresses, unless expedients were to be resorted to—such as the formal institution of a standing army in Rome and other similar measures—which would have put an end to the oligarchy far sooner than the attacks of demagogues. The permanent foundation of the ordinary governing power of the oligarchy of course could not but be the senate, with a power so increased and so concen trated that it presented a superiority to its non-organized opponents at every single point of attack. The system of compromises followed for forty years was at an end. The Gracchan constitution, still spared in the first Sullan
88. reform of 666, was now utterly set aside. Since the time of Gaius Gracchus the government had conceded, as it were, the right of émeute to the proletariate of the capital, and bought it off by regular distributions of corn to the burgesses domiciled there ; Sulla abolished these largesses. Gaius Gracchus had organized and consolidated the order of capitalists by the letting of the tenths and customs of the province of Asia in Rome ; Sulla abolished the system of middlemen, and converted the former contributions
CHAP- X THE SULLAN CONSTITUTION lII
of the Asiatics into fixed taxes, which were assessed on the several districts according to the valuation-rolls drawn up for the purpose of gathering in the arrears. 1 Gaius Gracchus had by entrusting the posts of jurymen to men of equestrian census procured for the capitalist class an indirect share in administering and in governing, which proved itself not seldom stronger than the official adminis
tration and government; Sulla abolished the equestrian and restored the senatorial courts. Gaius Gracchus or at any rate the Gracchan period had conceded to the equites a special place at the popular festivals, such as the senators had for long possessed ro) ; Sulla abolished it and relegated the equites to the plebeian benches. 2 The equestrian order, created as such by Gaius Gracchus, was deprived of its political existence by Sulla.
administration, and jurisdiction, unconditionally, indivisibly, and permanently, and was to be distinguished also by outward tokens not merely as a privileged, but as the only privileged, order.
For this purpose the governing board had, first of all, to
'Ilr'e senate was to exercise the supreme power in legislation,
Reorgan have its ranks filled up and to be itself placed on a footing lzation 0!
the small. fearfully reduced by the recent crises. Sulla no doubt now
1 That Sulla’s assessment of the five years’ arrears and of the war expenses levied on the communities of Asia (Appian, Mithr. 62 at 0! . ) formed a standard for the future, is shown by the facts, that the dis tribution of Asia into forty districts is referred to Sulla (Casslodor. Chron.
670) and that the Sullan apportionment was assumed as a basis in the ease of subsequent imposts (Cic. pro Flacc. 14, 32), and by the further circumstance, that on occasion of building a fleet in 672 the sums applied 82. for that purpose were deducted from the payment of tribute (expemnia 'uniigali populo Romano : Cic. Verr. L i. 35, 89). Lastly, Cicero (ad
of independence. The numbers of the senators had been
Q. fr. i. 1, 11, 33) directly says, that the Greeks “ were not in a position of themselves to pay the tax imposed on them by Sulla without publicani. "
’ iii. 351. Tradition has not indeed informed us by whom that law was issued, which rendered it necessary that the earlier privilege should be re newed by the Roscian theatre-law of 687 (Becker-Friedlander, iv, 531); 67. but under the circumstances the author of that law was undoubtedly Sulla.
i
I /
/
Its corn le ment
up by extrao
my
election. (
Mture
to the senate
i. l
band, and from Sullan oflicers and others brought into i1 prominence by the last revolution on the other. For the
IIZ THE SULLAN CONSTITUTION BOOK iv fgave to those who were exiled by the equestrian courts
liberty to return, for instance to the consular Publius Ruti lius Rufus 483), who however made no use of the per mission, and to Gaius Cotta the friend of Drusus (iii. 503) , but this made only slight amends for the gaps which the revolutionary and reactionary reigns of terror had created in the ranks of the senate. Accordingly by Sulla’s directions the senate had its complement extraordinarily made up by about 300 new senators, whom the assembly of the tribes had to nominate from among men of equestrian census,
and whom they selected, as may be conceived, chiefly from the younger men of the senatorial houses on the one
also the mode of admission to the senate was re
gulated anew and placed on an essentially different basis.
</) Admisioii As the constitution had hitherto stood, men entered the
the quaes torship.
senate either through the summons of the censors, which through 1 was the proper and ordinary way, or through the holding
i l
of one of the three curule magistracies—the consulship, the praetorship, or the aedileship-to which since the passing of the Ovinian law seat and vote in the senate
I had been de jure attached (iii. The holding of an inferior magistracy, of the tribunate or the quaestorship, gave doubtless claim dc fado to place in the senate -—-inasmuch as the censorial selection especially turned towards the men who had held such oflices—but by no means reversion de jure. Of these two modes of admis sion, Sulla abolished the former by setting aside—at least practically—vthe censorship, and altered the latter to the effect that the right__of admission to the senate was attached to the quaestorship instead of the aedile ship, and at the same time the number of quaestors to be
l.
annually
nominated was raised to twenty. 1 The prero How many quaestors had been hitherto chosen annually, not known
‘
is
a
a
7). a
a
case. at THE SULLAN CONSTITUTION‘ n3 l
gative hitherto legally pertaining to the censors, although
practically no longer exercised in its original serious sense
—of deleting any senator from the roll, with a statement
of the reasons for doing so, at the revisals which took
Aliolition of the cehsorial supervi sion of the
sehate.
place every five years (iii. 1 r)—likewise fell into abeyance
new’;
for the future ; the irrerloveable character which had
fiwmwtotm
belonged to uié'maa'nmsm
senators, which hitherto had presumably not much exceeded the old normal number of 300 and often perhaps had not even
reached was by these means considerably augmented, perhaps on an average doubled 1—an augmentation which was rendered necessary the great increase of the duties of the senate through the transference to of the functions of jurymen. As, moreover, both the extraordinarily admitted. senators and the quaestors were nominated by the :omitz'a
In 487 the number stood at eight-—two urban, two military, and four naval, quaestors (ii. 45, 58) to which there fell to be added the quaestors employed in the provinces (ii. 209). For the naval quaestors at Ostia, Cales, and so forth were by no means discontinued, and the military quaestors could not be employed elsewhere, since in that case the consul, when he appeared as commander-in-chief, would have been without a quaestor. Now, as down to Sulla’s time there were nine provinces, and moreover two quaestors were sent to Sicily, he may possibly have found as many as eighteen quaestors in existence. But as the number of the supreme magistrates of this period was considerably less than that of their functions (p. 120), and the difliculty thus arising was constantly remedied by extension of the term of office and other expedients, and as generally the tendency of the Roman government was to limit as much as possible the number of magistrates, there may have been more quaestorial functions than quaestors, and may be even that at this period no quaestor at all was sent to small provinces such as Cilicia. Certainly however there were, already before Sulla’s time, more than eight quaestors.
We cannot strictly speak at all of a fixed number of senators. Though the censors before Sulla prepared on each occasion a list of 300 persons, there always fell to be added to this list those non-senators who filled a curule oflice between the time when the list was drawn up and the pre paration of the next one; and after Sulla there were as many senators as there were surviving quaestorians. But may be probably assumed that Sulla meant to bring the senate up to 500 or 600 members; and this number results, we assume that 20 new members, at an average age of 30, were admitted annually, and we estimate the average duration of the senatorial dignity at from 25 to 30 years. At a numerously attended sitting of the senate in Cicero's time 417 members were present.
VOL. 1v 08
267'
1
if
it
1
it
;
it
by
it,
l
i
(v,)
"4
THE SULLAN CONSTITUTION 300: It
Regula
Irz'bula, the senate, hitherto resting indirectly on the election of the people 407), was now based throughout on direct popular election and thus made as close an approach to representative government as was compatible with the nature of the oligarchy and the notions of antiquity generally. The senate had in course of time been con verted from corporation intended merely to advise the magistrates into board commanding the magistrates and self-goveming was only consistent advance in the same direction, when the right of nominating and cancelling senators originally belonging to the magistrates was with drawn from them, and the senate was placed on the same legal basis on which the magistrates’ power itself rested. The extravagant prerogative of the censors to revise the list of the senate and to erase or add names at pleasure was in reality incompatible with an organized oligarchic constitution. As provision was now made for suflicient regular recruiting of its ranks by the election of the quaestors, the censorial revisions became superfluous and by their abeyance the essential principle at the bottom of every oligarchy, the irremoveable character and life-tenure of the members of the ruling order who obtained seat and vote, was definitively consolidated.
In respect to legislation Sulla contented himself with re
tions [88. viving the regulations made in 666, and securing to the as to the
burgesses.
senate the legislative initiative, which had long belonged to practically, legal enactment at least as against the tri
bunes. The burgess-body remained formally sovereign; but so far as its primary assemblies were concerned, while seemed to the regent necessary carefully to preserve the form, he was still more careful to prevent any real activity on their part. Sulla dealt even with the franchise itself in the most contemptuous manner; he made no difficulty either in conceding to the new burgess-communities, or in bestowing on Spaniards and Celts en marre in fact,
it
by
a
;
(i.
,-
;
a
it
it
it
; it
a
a
a
CHAP. x THE SULLAN CONSTITUTION tr 5
probably not without design, no steps were taken at all
for the adjustment of the burgess-roll, which nevertheless
after so violent revolutions stood in urgent need of a
revision, if the government was still at all in earnest with
the legal privileges attaching to it. The legislative func
tions of the comitia, however, were not directly restricted ;
there was no need in fact for doing so, for in consequence
of the better-secured initiative of the senate the people
could not readily against the‘ will of the government
intermeddle with administration, finance, or criminal juris
diction, and its legislative co-operation was once more
reduced in substance to the right of giving assent to altera. V. tions of the constitution.
Of greater moment was the participation of the burgesses
in the elections-—a participation, with which they seemed
not to be able to dispense vlithout disturbing more than
Sulla’s superficial restoration could or would disturb. The C0 interferences of the movement party in the sacerdotal “nan”.
restored in elections were set aside law of the priestly
hoodWW;w_fimMw_-i%MiW
6 5o, whwrgusféfiédiheelemtion of the supre e priest- iglkge"
older
ik
xz‘mus
Curio
powers
c
Ma
uts a
s to th
e
a
e
Maxz'mur (iii. 57) 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
Pontzflx
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 (iii. 542) ; whether it was that he regarded the particular composition
nd the
Regulating of the qualififlv tions for ofliee.
"6 THE SULLAN CONSTITUTION 300K rv
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 0f the capitalists. Only the qualifications were restored and partially raised. The limit of age requisite for the holding of each oflice 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 (yranm'r 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 magi
and the holding of another, and at least ten years should elapse before the same oflice could be held a second time. In this latter enactment the earlier ordinance
stracy
842. of 412 402) was revived, instead of the absolute pro hibition of all re-election to the consulship, which had been the favourite idea of the most recent ultra-oligarchical epoch (iii. 299). On the whole, however, Sulla left the elections to take their course, and sought merely to fetter the power of the magistrates in such way that—let the incalculable caprice of the comitia call to oflice whomsoever
might—the person elected should not be in position to rebel against the oligarchy.
Weaken ,/a) lngofthe
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 dimin ished rights, more especially the tribunician oflice, which appeared to the regent an instrument indispensable doubt less for senatorial government, but yet—as generated by revolution and having constant tendency to generate
a
it
a a
(i.
CHAP. X THE SULLAN CONSTITUTION n7
fresh revolutions in its turn—requiring to be rigorously and permanently shackled. The tribunician authority had arisen out of the right to annul the ot’ficial acts of the magistrates by veto, and, eventually, to fine any one who should oppose that right and to take steps for his farther
this was still left to the tribunes, excepting that a heavy fine, destroying as a rule a man’s civil exist ence, 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 prob ably made dependent on a permission to be previously
punishment;
from the senate. 1 Lastly it was added that the holding of the tribunate should in future disqualify for the
undertaking of a higher ofiice-—an enactment whic
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 oflices to be mutually incompatible. In this way the legislator of the oligarchy
1 To this the words of Lepidus in Sallust (Hirt. i. 41, u Dietsch) refer : popular Romanur excitur . . . r'ure ag'itundi, to which Tacitus (Ann.
iii. 27) alludes : rlatim turbidis Lepidi ragatiauibur neque muliaport In'buni: reddita litentia quoyuo vellmt papulum agilandi.
That the tribunes did
not altogether lose the right of discussing matters with the people is shown
by Cic. De Leg. iii. 4, x0 and more clearly by the plebircitum d: T[lemmi
bur, which however in the opening formula also designates itself as issued
dc . renatur . rmimtia. That the consuls on the other hand could under the Sullan arrangements submit proposals to the people without a previous resolution of the senate, is shown not only by the silence of the authorities,
but also by the course of the revolutions of 667 and 676I whose leaders 87. for this very reason were not tribunes but consuls. Accordingly we find
at this period consular laws upon secondary questions of administration,
such as the corn law of 681, for which at other times we should have 78. certainly found plebiscite.
D
requested
1il£e\
78s
118 THE SULLAN CONSTITUTION BOOK “I
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.
The consulship and praetorship also, although viewed by the aristocratic regenerator of Rome with a more
Limitation
of the
supreme
magistracy. favourable eye than the tribunate liable in itself to be
K regarded with suspicion, by no means escaped that distrust towards its own instruments which is throughout charac teristic of oligarehy. They were restricted with more tenderness in point of form, but in a way very sensibly felt.
Regulation Sulla here began with the partition of functions. At the
of the con sular and
beginning of this period the arrangement in that respect
praetorian stood as follows. As formerly there had devolved on the
functions before the time of Sulla.
two consuls the collective functions of the supreme magi stracy, so there still devolved on them all those oflicial 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
CHAP. I THE SULLAN CONSTITUTION
H9
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 posses sions. 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, sui‘ficed. 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 (proragare). 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 urbanur ,- 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 d: fun, 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 oflice, 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 them selves 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 trans marine command of especial importance at the moment, or include an extraordinary military or judicial commission
120 THE SULLAN CONSTITUTION noox rv
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 oflice; 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 409) but this was required rather by the spirit than by the letter of the constitution, and soon the burgesses ceased from interven— tion in the matter. In the course of the seventh century there were gradually added to the six special departments
six others, viz. the five new governor ships of Macedonia, Africa, Asia, Narbo, and Cilicia, and the presidency of the standing commission respecting
exactions (iii. 300). With the daily extending sphere of action of the Roman government, moreover, was 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
to be annually occupied. Of course 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
already existing
departments
;
it a
(i. ;
it
CHAP. X THE SULLAN CONSTITUTION I2!
the term of oflice, 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 oflice confined either in law or at any rate in fact to the capital, that to the two praetors administering justice in the city and frequently also to the consuls course which was compatible with the nature of prorogation, since the oflicial 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.
Such was the state of things which Sulla found existing, Regulation
and which formed the basis of his new arrangement. Its of their functions
main principles were, complete separation between the by Sulla. political authority which governed in the burgess-districts
aud the military authority which governed in the non
and an uniform extension of the duration of the supreme magistracy from one year to two, the. first
burgess-districts,
of which was devoted to civil, and the second to military
affairs. Locally the civil and the military authority had Separation certainly been long separated the constitution, and the of the
political former ended at the pomerz'um, where the latter began; and
but still the same man held the supreme political and the military supreme military power united in his hand. In future the authority. 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 law from the former, and all political action from the latter. This primarily led to the political separation of the region of
by
by
a
; a
is,
province.
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
12: THE SULLAN CONSTITUTION BOOK 1v
territory of the Roman state from the Straits to the Alps includ ing the Illyrian possessions—burgess, Latin, and non Italian communities without exception—was in the ordi
nary 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 governor ship after the model of the older transmarine commands. 1
I For this hypothesis there is no other proof, except that the Italian Celt-land was as decidedly not a province-in the sense in which the word signifies a definite district administered by a governor annually changed— in the earlier times, as it certainly was one in the time of Caesar (comp. Licin. p. 39; dam erat at Sulla: provincia Gallia Ciralpina).
The case is much the same with the advancement of the frontier; we know that formerly the Aesis, and in Caesar's time the Rubico, separated the Celtic land from Italy, but we do not know when the boundary was shifted. From the circumstance indeed, that Marcus Terentius Varro Lucullus as propraetor undertook a regulation of the frontier in the district between the Aesis and Rubico (Orelli, Mar. 570), it has been inferred that that must still have been provincial land at least in the year after
75. Lucullus' praetorship 679, since the propraetor had nothing to do on Italian soil. But it was only within the pomr'rium that every prolonged imper-ium ceased of itself ; in Italy, on the other hand, such a prolonged imperium was even under Sulla’s arrangement~though not regularly existing—at any rate allowable, and the oflice held by Lucullus was in am
CHAP. x THE SULLAN CONSTITUTION
I23
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 oflice, 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
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. 1
By this plan, in the first instance, a cleanamLfixg ill-1p maibstitqtséfir the irregular mode of distributing oflices hithertoadoptelika mode whichwihvited 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
case an extraordinary one. But we are able moreover to show when and how Lucullus held such an office in this quarter. He was already before the Sullan reorganization in 672 active as commanding officer in this very district (p. 87). and was probably, just like Pompeius, furnished by Sulla with propraetorlan powers ; in this character he must have regulated the boundary in question in 672 or 673 (comp. Appian. i. 95). No inference therefore may be drawn from this inscription as to the legal position of North Italy, and least of all for the time after Sulla’s dictator- ship. On the other hand a remarkable hint is contained in the statement, that Sulla advanced the Roman pamerium (Seneca, do brew. vitae, r4; Dio, xliii. 5o) ; which distinction was by Roman state-law only accorded to one who had advanced the bounds not of the empire, but of the city -that is, the bounds of Italy
proconsuls
128).
A: two quaestors were sent to Sicily, and one to each of the othu'
provinces, and as moreover the two urban quaestors, the two attached to the consuls in conducting war, and the four quaestors of the fleet con tinued to subsist. nineteen magistrates were annually required for this ofice. The department of the twentieth quaestor cannot be ascertained.
Better arrange ment of business
82.
82. 81.
1
(i.
124
THE SULLAN CONSTITUTION BOOK 1v
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
r'mw;>erimn,1 and placed in contrast to it the continental and trans marine territories, which were, on the other hand, necessarily
placed under military commandants—the provinces as they Increase at were henceforth called. According to the former arrange
of the
ment the same man had very frequently remained two,
and often more years in the same oflice. The arrangement restricted the magistracies of/the/giital as weii’as the ggemorships throughout to one year ; and
new
(‘the special enactment that every governor should without Q 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 that the limitation of the magistracy in point
of function was favourable to democracy, and its limitation
in point of time favourable to oligarchy.
the previous arrangement Gaius Marius had acted at once as head of the senate and as commander-in-chief of the state; he had his own unskilfulness alone to blame for his failure to overthrow the oligarchy means of this double official power, care seemed now taken to prevent some possibly wiser successor from making a better
of the same lever. According to the previous
ment the magistrate immediately nominated the people
The Italian confederacy was much older (ii. 59); but was a league of states, not, like the Sullan Italy, a state-domain marked 08' u an unit within the Roman empire.
According to
use arrange
it
1
by by
if
it,
CHAP. X THE SULLAN CONSTITUTION
I25
might have had a military position ; the Sullan arrange
ment, on the other hand, reserved such a position ex clusively for those magistrates whom the senate confirmed
in their oflicial authority by prolonging their term of oflice. No doubt this prolongation of oflice 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 oflice ; 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.
Lastly we have already observed that the highest of all Shelving ot
the censor
magistracies, the censorship, though not formally abolished, was shelved in the same way as the dictatorship had previously been. Practically it might certainly be dis pensed 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 fre quently happened, no election of censors had taken place, and which they now took as a part of their ordinary oflicial 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 govern ing corporation, that—with a view to satisfy the ambition
Regulation of the finances.
136 THE SULLAN CONSTITUTION BOOK rv
of the senators now so much more numerous—the number of the pontifices and that of the augurs was increased from nine 38 that of the custodiers of oracles from ten 380), to fifteen each, and that of the banquet masters from three (iii. no) to seven.
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 dificulty 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 the victory at the Colline gate the senate, seeing that the state-chest had been carried 05 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 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 (p. 107), and above all by the abolition of the largesses of grain, which since the time of Gaius Gracchus had eaten like canker into the Roman finances.
The judicial system on the other hand was essentially revolutionized, partly from political considerations, partly
a
(i.
(i.
5),
CHAP. x THE SULLAN CONSTITUTION
I27
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 sub- sisting, processes fell to be decided partly by the burgesses, partly by jurymen. The judicial cases in which the whole
Rem-gm.
21,912’: i judicial
Immac burgesses decided on appeal from the judgment of the menu‘
magistrate were, down to the time of Sulla, placed in the hands primarily of the tribunes of the people, secondarily 0f the aediles, inasmuch as all the processes, through which a person entrusted with an oflice 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 legisla
tion, on the previous consent of the senate, and presumably also limited in like manner the aedilician penal pro cedure. 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, Ordinary
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 (z'udex) nominated by him decided it on the basis of this adjustment. The extraordinary jury-procedure again was applicable in par ticular 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 (ag. iii. 396, 439) 5
proud“
Permanent
128 THE SULLAN CONSTITUTION BOOK lv
the standing commissional tribunals, such as had been
312cm‘ appointed for exactions (iii. 300), for poisoning and murder
tiona. (iii. 348), perhaps also for bribery at elections and other
mm“ 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 afi'ecting inheritance, also called, from the shaft of a spear employed in all disputes as to property, the “spear-court” (lzarta). The court of Ten-men (decemm'ri litibu: iudz'candzk) was a very ancient institution for the protection of the plebeians against their masters The period and circumstances in which the spear-court originated are involved in obscurity; but they must, 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 praetor, over the court for murder 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 footing that they, in entering upon their oflice, had to set forth once for all the list of jurymen, and then the jury for an individual case was formed from these, not free choice of the magistrate, but drawing lots, and rejection on behalf of the parties. From the choice of the people there came only the “ Ten-men " for procedure affectin freedom
Sullan Sulla’s leadin reforms w ct .
9::
Centum-
Firs he. very consi era increased the number of the
y
by
by by a g
a
a
3 2).
it
5
(i.
can. jw
dealing
1: THE SULLAN CONSTITUTION
n9
There were henceforth separate judicial com missions 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 con siderably restricted, for the more s ' falsifications and injuries were withdrawn from it. eco 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 number of other directors in the care of the commission which was most frequently called into action—that for
with murder. the senators were once more installed in the of jurymen in room of the Gracchan equites.
The political aim of these enactments—to putailgni v__,v. ___v_‘_v . vv
m the share which rhieméglhrgija’d hitherto had in the government—is clear as day but as little admits of
doubt, that these were not mere measures of political tendency, but that they formedlhflii)siattgnw the Roman criffifiialwproaedure and criminalglaw, which had
voL. xv
\/. 109
a
;
it
o e
ir Ly,
a
ly,
Police laws.
130
THE SULLAN CONSTITUTION BOOK iv
since the struggle between the orders fallen more and more into confusion. From this Sullan legislation wdatfsz the
N’ law distinction—substantialiy' uhk'n'o'wnitowthefharwlier
between civil and criminal causes, in the sense which we now attach-'5 these expressions; henceforthiggimingll cause appears as that which comes before—the_lgn_ch,of
u der the presidency of the raetor, 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 quaertx'oner
maymbe characterized _avt_ 913ias the firsVtJRgmancQdLftEr the Tables, anduaith‘e first criminalwggd v ever specially issiiednat-iallr 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
Wgflencgsi
Roman custom which even Sulla retained unchanged the people only, and not the jury-commission, could sentence to forfeiture of life or to imprisonment (iii. 348), the trans ference of processes of high treason from the burgesses to a standing commission amounted to the abolition of capital
to the
for such offences. On the other hand, the restriction of the pernicious special commissions for par ticular cases of high treason, of which the Varian com mission (iii. 503) 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.
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
punishment
for, as
according
CHAP- it THE SULLAN CONSWTITUTION t3!
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.
,9)
Lastly, the development of an indepen oman The
municipal system was the w rk, if not of Sulla, at any rate Roman municipal
of the Su an epoch. The idea of organically incorpor system. -. .
atm the com 5 a s rdmate tmal unit in the
higher unity oftllgstateuwasgor‘iginally foreignTtfiiitiquity;
of the east knew nidflii'fi‘g'br'urbai'eonniiom wealths in the strict sense of the word, and city and state were throughout the Helleno-Italic world necessarily co
incident. 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
"th'e‘dés-potism
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
dependent
from organizing themselves as collective bodies —deprived of properly municipal rights, so that in all
prevented
and burgess-mum'rzfia even the administra tion 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 (praefictur) of the
nominated from Rome (ii. 49). The provinces were similarly dealt with, except that the governor there came in place of the authorities of the capital. In the free, that 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
burgess-colonies
praetor
is,
132
THE SULLAN CONSTITUTION 3001: IV
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 (p. 122), 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 (iii. 499). 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 con stitution 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 com
munity; only care was taken to apply to the same institu tions in the mum'afium 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
cnAr. x THE SULLAN CONSTITUTION
I33
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 duumm'ri, who in this case assumed the distinctive title of duumm'ri “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.
With reference to the relation of this secondary political Relation of
organism to the primary organism of the state, political the immi cipium to
prerogatives in general belonged completely to the former the state. as well as to the latter, and consequently the municipal
decree and the imperium of the municipal
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 prescribed by Rome were not taken into account, and via versa; public buildings might be instituted both
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,
magistrates
those by
Rise of the munici piun.
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 diflicult 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.
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
134
THE SULLAN CONSTITUTION BOOK IV
which were founded at the end of the sixth century (iii. 26); at least several, in themselves
indifferent, formal differences between burgess-colonies
and burgeSsmum'aIpz'a 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-mum‘apium, and the advantage doubt less can only have consisted in a municipal constitution approximating to the Latin, such as afterwards belonged to all burgess-colonies and burgess-mum'altia. The new organization is first distinctly demonstrable for the revolu tionary colony of Capua 70); and admits of no doubt that was first fully applied, when all the hitherto sovereign towns of Italy had to be organized, in con
sequence of the Social war, as burgess-communities. Whether 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 duumw'ri seems indeed to have been introduced after the analogy of the Sullan ordinance superseding the censorshipw, but may be equally well referred to the oldest Latin constitu- tion to which also the censorship was unknown.
case this‘ . Jnunicipal constitution—inserted and su -
ordinate'35th};_s_tatewproper—is one of the most remarkable 'v'w_u,. _---—~_-~__. v_-'
burgess-colonies,
in,
it
it
(p.
it
CHAP. X THE SULLAN CONSTITUTION
135
and s roducts of the riod, and of the life of the Roman state generally. Antiquity was certain y 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 develop ment 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 thevcqrgnmomalth_of
WRomeronrtlfefofihmost into a meaningless
form’; the community subsistingwwithin'"'tliéfitaté-lqrLthe
otheThand was aMWawWin-themhan
munz'ajfiiuk
Down to the name, which in such cases no
doubtisthehalfofthematter,thislastt constitution of
ahmmmm
he
the free republic carried out the representative system
pai---—~
e 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 jurisdic tion as the Roman authorities did not prefer to take into their own hands.