No More Learning

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.
gmm
Such was the constitution which Lucius Cornelius Sulla
Impression produced by the Sullan reorganiza tion.
Opposition of the oflicorl.
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 oflicers. 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 Nurnantia ; but it had at the same time been con
""fl
Wh WWW_
136
THE SULLAN CONSTITUTION BOOK lv
verted from a burgess-force into a set of mercenaries who showed no fidelity to the state at all, and proved faithful to the oflicer 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 (iii. 529), Cato (iii. 5 3o), Rufus (iii. 546), Flaccus 47), Cinna 74), and Gaius Carbo 91), had fallen during its course the hands of their soldiers: Sulla alone had hitherto been able to retain the mastery of the dangerous crew, and that only, in fact, 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 on this account attached to him, the censure 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 zana’ottz'ere. 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 oflicers, to submit once more to the authority of civil order. When this became evident, an opposition
' arose against him among his own stafi‘. The oligarchy might play the tyrant as respected other citizens; but that the generals also, who with their good swords had replaced
overthrown senators in their seats, should now be summoned to yield implicit obedience to this very senate,
intolerable. The very two oflicers in whor Sulla had placed most confidence resisted the new orde 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.
{the
Lgemed
ii‘
a
is
is
by
(p. by
(p.
CHAP- x THE SULLAN CONSTITUTION
r37
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 sufliciently 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 94). 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 out 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 So this significant opposition of the staff to the new order of things
was no doubt silenced for the present; but continued to
subsist and furnished the practical commentary on Sulla’s
saying, that what he did on this occasion could not be M done second time.
qrlgthiaastillrsnairfgl—pewrhaps 915)gpsrgd'gmr
all: to hiingthfi-fiwiflnfllgateglthingsintoaccordance 23125350’
with the paths prescribed by the new or old laws. It was tic =1 facifitated“'byfle'circTfistancefth'atwsullicnexrellost sight
of this as his ultimate aim. Although the Valerian law gambsoliitegpow‘ef'ahd 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 which would simply have uselessly compromised the senate and burgesses, especially in the case of the proscriptions.
Quintus
V
in
‘ 0%‘
a
it
it.
;
(p.
138
THE SULLAN CONSTITUTION 3001: IV
Ordinarily he had himself observed those regulations, which he prescribed for the future. That the people were con sulted, we read in the law as to the quaestors which is still in part extant 3 and the same is attested of other laws, cg. the sumptuary law and those regarding the confiscation of domains. In like manner the senate was previously con sulted in the more important administrative acts, suchas in the sending forth and recall of the African army and in the conferring of the charters of towns. In the same spirit
BL Sulla caused consuls to be elected even for 673, through which at least the odious custom of dating oilicially by the regency was avoided; nevertheless the power still lay exclusively with the regent, and the election was directed so as to fall on secondary personages. But in the following
80. year (674) Sulla revived the ordinary constitution in full efficiency, and administered the state as consul in concert with his comrade in arms Quintus Metellus, retaining the regency, but allowing it for the time to lie dormant. He saw well how dangerous it was for his own very institutions to perpetuate the military dictatorship. When the new state of things seemed likely to hold its ground and the largest and most important portion of the new arrangements had been completed, although various matters, particularly in colonization, still remained to be done, he allowed the
79. elections for 675 to have free course, declined re-election to the consulship as incompatible with his own ordinances,
‘
.
79.
Sulll resigns tho regency.
and at the beginning of 67 5 resigned the regency, soon after the new consuls Publius Servilius and Appius Claudius had entered on oflice. Even callous hearts were impressed, when the man who had hitherto dealt at his pleasure with the life and property of millions, at whose nod so many heads had fallen, who had mortal enemies dwelling in every street of Rome and in every town of Italy, and who with out an ally of equal standing and even, strictly speaking, without the support of a fixed party had brought to an end
CHAP- it THE SULLAN CONSTITUTION
I39
his work of reorganizing the state, a work offending a thousand interests and opinions—when this man appeared in the market-place of the capital, voluntarily renounced his plenitude of power, discharged his armed attendants, dismissed his lictors, and summoned the dense throng of burgesses to speak, ifany one desired from him a reckoning. All were silent: Sulla descended from the rostra, and on foot, attended only by his friends, returned to his dwelling through the midst of that very populace which eight years before had razed his house to the ground.
Posterity has not justly appreciated either Sulla himself or Character his work of reorganization, as indeed it is wont to judge of Sulla. unfairly ofpersons who oppose themselves to the current
of the times. In fact Sulla is one of the most marvellous characters-we may even say a unique phenomenon—in
history. Physically and mentally of sanguine temperament,
blue-eyed, fair, of a complexion singularly white but blush
ing with every passionate emotion—though otherwise a handsome man with piercing eyes—he seemed hardly
destined to be of more moment to the state than his
ancestors, who since the days of his great-great-grandfather
Publius Cornelius Rufinus (consul in 464, 47 one of the 290. 277. most distinguished generals and at the same time the
most ostentatious man of the times of Pyrrhus, had remained
in second-rate positions. He desired from life nothing but
serene enjoyment. Reared in the refinement of such cul
tivated luxury as was at that time naturalized even in the
less wealthy senatorial families of Rome, he speedily and
adroitly possessed himself of all the fulness of sensuous and intellectual enjoyments which the combination of Hellenic
polish and Roman wealth could secure. He was equally
welcome as pleasant companion in the aristocratic saloon
and as a good comrade in the tented field his acquaintances,
high and low, found in him sympathizing friend and
ready helper in time of need, who gave his gold with far
a
a
;
a
7),
140
THE SULLAN CONSTITUTION BOOK iv
more pleasure to his embarrassed comrade than to his wealthy creditor. Passionate was his homage to the wine cup, still more passionate to women; even in his later years he was no longer the regent, when after the business of the day was finished he took his place at table. A vein of irony—we might perhaps say of buffoonery—pervaded his whole nature. Even when regent he gave orders, while conducting the public sale of the property of the proscribed, that a donation from the spoil should be given to the author of a wretched panegyric which was handed to him, on condition that the writer should promise never to sing his praises again. When he justified before the burgesses the execution of Ofella, he did so by re lating to the people the fable of the countryman and the lice. He delighted to choose his companions
among actors, and was fond of sitting at wine not only with Quintus Roscius—the Roman Talma—but also with far inferior players ; indeed he was himself not a bad singer, and even
wrote farces for performance within his own circle. Yet amidst these jovial Bacchanalia he lost neither bodily nor mental vigour, in the rural leisure of his last years he was still zealously devoted to the chase, and the circumstance that he brought the writings of Aristotle from conquered Athens to Rome attests withal his interest in more serious reading. The specific type of Roman character rather repelled him. Sulla had nothing of the blunt hauteur which the grandees of Rome were fond of displaying in presence of the Greeks, or of the pomposity of narrow minded great men 5 on the contrary he freely indulged his humour, appeared, to the scandal doubtless of many of his countrymen, in Greek towns in the Greek dress, or induced
his aristocratic companions to drive their chariots personally at the games. He retained still less of those half-patriotic, half-selfish hopes, which in countries of free constitution allure every youth of talent into the political arena, and
CHAP- x THE SULLAN CONSTITUTION
:4:
which he too like all others probably at one time felt. In such a life as his was, oscillating between passionate intoxi cation and more than sober awaking, illusions are speedily dissipated. Wishing and striving probably appeared to him folly in a world which withal was absolutely governed by chance, and in which, if men were to strive after anything at all, this chance could be the only aim of their efforts.
He followed the general tendency of the age in addicting himself at once to unbelief and to superstition. His whimsical credulity was not the plebeian superstition of Marius, who got a priest to prophesy to him for money and determined his actions accordingly; still less was it the sullen belief of the fanatic in destiny ; it was that faith in the absurd, which necessarily makes its appearance in every man who has out and out ceased to believe in a connected order of things—the superstition of the fortunate player, who deems himself privileged by fate to throw on each and every occasion the right number. In practical questions Sulla understood very well how to satisfy ironically the demands of religion. When he emptied the treasuries of the Greek temples, he declared that the man could never fail whose chest was replenished by the gods themselves. When the Delphic priests reported to him that they were afraid to send the treasures which he asked, because the harp of the god emitted a clear sound when they touched
he returned the reply that they might now send them all the more readily, as the god evidently approved his design. Nevertheless he fondly flattered himself with the idea that he was the chosen favourite of the gods, and in an altogether special manner of that goddess, to whom down to his latest years he assigned the pre-erninence, Aphrodite. In his conversations as well as in his autobio graphy he often plumed himself on the intercourse which the immortals held with him in dreams and omens. He had more right than most men to be proud of his achieve
it,
107
‘
142
THE SULLAN CONSTITUTION BOOK rv
Sulla's political Cm
ments ; he was not so, but he was proud of his uniquely faithful fortune. He was wont to say that every improvised enterprise turned out better with him than those which were systematically planned; and one of his strangest whims—that of regularly stating the number of those who had fallen on his side in battle as nil—was nothing but the childishness of a child of fortune. It was but the utter ance of his natural disposition, when, having reached the culminating point of his career and seeing all his contem poraries at a dizzy depth beneath him, he assumed the designation of the Fortunate—Sulla Felix—as a formal surname, and bestowed corresponding appellations on his children.
Nothing lay farther from Sulla than systematic ambition. He had too much sense to regard, like the average aristo crats of his time, the inscription of his name in the roll of the consuls as the aim of his life ; he was too indifferent and too little of an ideologue to be disposed voluntarily to
in the reform of the rotten structure of the state. He remained—where birth and culture placed him—in the circle of genteel society, and passed through the usual routine of oflices ; he had no occasion to exert himself, and left such exertion to the political working bees, of whom there was in truth no lack. Thus in 647, on the allotment of the quaestorial places, accident brought him to Africa to the headquarters of Gaius Marius. The untried man-of fashion from the capital was not very well received by the rough boorish general and his experienced staff. Provoked by this reception Sulla, fearless and skilful as he was, rapidly made himself master of the profession of arms, and in his daring expedition to Mauretania first displayed that peculiar combination of audacity and cunning with refer ence to which his contemporaries said of him that he was half lion half fox, and that the fox in him was more danger ous than the lion. To the young, highborn, brilliant ofhcer,
engage
CHAP. x THE SULLAN CONSTITUTION
143
who was confessedly the real means of ending the vexatious Numidian war, the most splendid career now lay open ; he took part also in the Cimbrian war, and manifested » his singular talent for organization in the management of l the diflicult task of providing supplies; yet even now the
of life in the capital had far more attraction
for him than war or even politics. During his praetor ship, which oflice he held in 661 after having failed in 8. a previous candidature, it once more chanced that in
his province, the least important of all, the first victory over king Mithradates and the first treaty with the mighty
Arsacids, as well as their first humiliation, occurred. The Civil war followed. It was Sulla mainly, who decided
the first act of it—the Italian insurrection—in favour of Rome, and thus won for himself the consulship by his sword; it was he, moreover, who when consul suppressed with energetic rapidity the Sulpician revolt. Fortune seemed to make it her business to eclipse the old hero Marius by means of this younger oflicer. The capture
of Jugurtha, the vanquishing of Mithradates, both of which Marius had striven for in vain, were accomplished
in subordinate positions by Sulla: in the Social war, in which Marius lost his renown as a general and was deposed, Sulla established his military repute and rose
to the consulship; the revolution of 666, which was at 88. the same time and above all a personal conflict between
the two generals, ended with the outlawry and flight of Marius. Almost without desiring Sulla had become the most famous general of his time and the shield of the oligarchy. New and more formidable crises ensued—the Mithradatic war, the Cinnan revolution; the star of Sulla continued always the ascendant. Like the captain who seeks not to quench the flames of his burning ship but continues to fire on the enemy, Sulla, while the revolution was raging in Italy, persevered unshaken in Asia till the
pleasures
l
in
it,
144
THE SULLAN CONSTITUTION ' loo: rv
public foe was subdued. So soon as he had done with that foe, he crushed anarchy and saved the capital from the firebrands of the desperate Samnites and revolutionists. The moment of his return home was for Sulla an over powering one in joy and in pain : he himself relates in his memoirs that during his first night in Rome he had not been able to close an eye, and we may well believe it. But still his task was not at an end ; his star was destined to rise still higher. Absolute autocrat as was ever any king, and yet constantly abiding on the ground of formal right, he bridled the ultra-reactionary party, annihilated the Gracchan constitution which had for forty years limited the oligarchy, and compelled first the powers of the capital ists and 0f the urban proletariate which had entered into rivalry with the oligarchy, and ultimately the arrogance of the sword which had grown up in the bosom of his own staff, to yield once more to the law which he strength ened afresh. He established the oligarchy on a more independent footing than ever, placed the magisterial
power as a ministering instrument in its hands, com mitted to it the legislation, the courts, the supreme military and financial power, and furnished it with a sort of bodyguard in the liberated slaves and with a sort of army in the settled military colonists. Lastly, when the work was finished, the creator gave way to his own creation ; the absolute autocrat became of his own
accord once more a simple senator. In all this long military and political career Sulla never lost a battle, was never compelled to retrace a single step, and, led astray neither by friends nor by foes, brought his work ‘to the goal which he had himself proposed. He had reason, indeed, to thank his star. The capricious goddess of fortune seemed in his case for once to have exchanged caprice for steadfastness, and to have taken a pleasure in loading her favourite with successes and honours_
CHAP- x THE SULLAN CONSTITUTION
[45
‘whether he desired them or not; But history must be more just towards him than he was towards himself, and must place him in a higher rank than that of the mere favourites of fortune.
We do not mean that the Sullan constitution was a workgsulla and
of political genius, such as those of Gracchus and Caesar. There does not occur in it—as indeed, implied in itsi very nature Aas reswtoration-—a singleisnewsioinstates
the initiative of the senate in legislationfthe conversion of the tribunician oflice into an instrument of the senate for fettering the imperiumfthe prolon ing of the duration! of the supreme oflice to two years, the transference of the command from the popularly-elected,’ magistrate to the senatorial groconsul or propraetor, and even the new criminal and municipal arrangements—. vwere not created
3L“,
grown g1g1vt_o_f_tgeg'oi archic government, and which he
rmcmlylegulated and fixed. 11 even as to the horrors attaching to his restoration, the proscriptions and con fiscations—are they, compared with the doings of Nasica, Popillius, Opimius, Caepio and so on, anything else than the legal embodiment of the customary oligarchic mode
"at
idea
manship. to
ll
adm
he a bolition
lding
of the censorial right to eject senator from the senate,
y the the senate b
ho
quaes
o
t
of getting rid of opponents? On the Roman oligarchy >v-. ~. w. . . -»
of this period no judgment CHE: passed save' one of inexorable'ari'd remogrspeless condeiihégon am: like every thing else tfinhected 'iwi'tlinitjwtlie Sullan constitution
involved inillat condemnation. "fo-iccord which the genius of had inan~bribes us into
complgtely
praise
bestowing to sin against the sacred character of his tory but we may be allowed to bear in mind that Sulla was far less answerable for the Sullan restoration than the body of the Roman aristocracy, which had ruled as
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THE SULLAN CONSTITUTION IOOK lv
I clique for centuries and had every year become more enervated and embittered by age, and that all that was hollow and all that was nefarious therein is ultimately traceable to that aristocracy. Sulla reorganized the state ---not, however, as the master of the house who puts his shattered estate and household in order according to his own discretion, but as the
temporary business-manager who faithfully complies with his instructions; it is super
ficial and false in such a case to devolve the final and essential responsibility from the master upon the manager. We estimate the importance of Sulla much too highly, or rather we dispose of those terrible proscriptions, ejections, and restorations—for which there never could be and never was any reparation—on far too easy terms, when we regard them as the work of a bloodthirsty tyrant whom accident had placed at the head of the state. These and the terrorism of the restoration were the deeds of the aristocracy, and Sulla was nothing more in the matter than, to use the poet’s expression, the execu tioner‘s axe following the conscious thought as its uncon scious instrument. Sulla carried out that part with rare, in fact superhuman, perfection; but within the limits
which it laid down for him, his working was not only grand but even useful. Never has any aristocracy deeply decayed and decaying still farther from day to day, such as was the Roman aristocracy of that time, found a guardian so willing and able as Sulla to wield for it the sword of the general and the pen of the legislator with out any regard to the gain of power for himself. There is no doubt a difference between the case of an oflicer who refuses the sceptre from public spirit and that of one who throws it away from a cloyed appetite; but, so far as concerns the total absence of political selfishness—although, it is true, in this one respect only—Sulla deserves to be named side by
side with Washington.
CHAP- x THE SULLAN CONSTITUTION 147 \\
But the whole country—and not the aristocracy merely Value
—was more indebted to him than posterity was willing ofthe Sullan con
to confess. Sulla definitely terminated the Italian - stitution.
revohi tion, in so are? it was ased on t e disabilities of in
v//.
dividual less privileged districts as compared with others of better rights, and, by compelling himself and his party to recognize the equality of the rights of all Italians in presence of the law, became the real and final author of the full political unit of Ital —a gain which was not
'tmso
themn governmerrt''of'th’e'ienate with the
troubles and streams of blood. Sulla however did more. For more
than half a century
and anarchy had beepliemrmanent condition: for the
WSW/gnomes? ? ?
Cinna and Carbo was a yet far worse illustration of the absence of a master-hand (the sad image of which is most clearly reflected in that equally confused and unnatural league
with the Samnites), the most uncertain, most intolerable, and most mischievous of all conceivable political condi tions—in fact the beginning of the end. We do not go too far when we assert that the long-undermined Roman commonwealth must have necessarily fallen to pieces, had not Sulla by his intervention in Asia and Italy saved
had as little endurance as and now
its existence.
is
_It true
gtwh_at_ the constitution of Sulla “WNW-“TM
was not see that his structure was no solid“ one;
but‘it is arrant thmfififfis'shégfiwérfli'fle fact that without Sulla most probably the very site of the building would have been swept away by the waves; and even the blame of its want of stability does not fall primarily on Sulla. The statesman builds only so much as in the sphere assigned to him he can build. What a man of conservative views could do to save the old constitution, Sulla did ; and he himself had a foreboding that, while
many
declining, Gracchanjonstitution
\
the Sullan others to do. Sulla not only established his despotic power
by unscrupulous violence, but in doing so called things by their right name with certain cynical frankness, through which he has irreparably offended the great mass of the weakhearted who are more revolted at the name than at the thing, but through which, from the cool and dispas sionate character of his crimes, he certainly appears to the moral judgment more revolting than the criminal acting from passion. Outlawries, rewards to executioners, con fiscations of goods, summary procedure with insubordinate ofl'icers had occurred hundred times, and the obtuse
political morality of ancient civilization had for such things only lukewarm censure; but was unexampled that the names of the outlaws should be publicly posted up and their heads publicly exposed, that set sum should be fixed
restoration.
148
THE SULLAN CONSTITUTION 800: IV
/’_\ Immoral and superficial nature of
he might doubtless erect fortress, he would be unable to create garrison, and that the utter worthlessness of the oligarchs would render any attempt to save the oligarchy vain. His constitution resembled temporary dike thrown into the raging breakers; was no reproach to the builder,
some ten years afterwards the waves swallowed up
structure at variance with nature and not defended even
by those whom sheltered. The statesman has no need
to be referred to highly commendable isolated reforms,
such as those of the Asiatic revenue-system and of criminal
justice, that may not summarily dismiss Sulla’s ephe
meral restoration: he will admire as
of thevRoman commonwealth ju'd‘iciously planned and on
the whole consistently carried out-linger infinite difiictilties, bv--~> . __. . . . A ~. . v_
and he will place the deliverer of Rome and the accom plisher of Italian unity below, but yet by the side of, Cromwell.
not, however, the statesman alone who has voice in judging the dead; and with justice outraged human feeling will never reconcile itself to what Sulla did or suffered
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CHAP- x THE SULLAN CONSTITUTION
149
for the bandits who slew them and that it should be duly entered in the public account-books, that the confiscated property should be brought to the hammer like the spoil of an enemy in the public market, that the general should order a refractory oflicer to be at once cut down and acknowledge the deed before all the people.