The history of Rome

by Theodor Mommsen

  The equestrian order, created as such by Gaius Gracchus, was deprived of its political existence by Sulla. The senate was to exercise the supreme power in legislation, 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.

  Reorganization of the Senate - Its Complement Filled Up by Extraordinary Election - Admission to the Senate through the Quaestorship - Abolition of the Censorial Supervision of the Senate

  For this purpose the governing board had, first of all, to have its ranks filled up and to be itself placed on a footing of independence. The numbers of the senators had been fearfully reduced by the recent crises. Sulla no doubt now gave to those who were exiled by the equestrian courts liberty to return, for instance to the consular Publius Rutilius Rufus[12], who however made no use of the permission, and to Gaius Cotta the friend of Drusus[13]; 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 hand, and from Sullan officers and others brought into prominence by the last revolution on the other.

  For the future also the mode of admission to the senate was regulated anew and placed on an essentially different basis. As the constitution had hitherto stood, men entered the senate either through the summons of the censors, which was the proper and ordinary way, or through the holding of one of the three curule magistracies - the consulship, the praetorship, or the aedileship - to which since the passing of the Ovinian law a seat and vote in the senate had been de jure attached[14]. The holding of an inferior magistracy, of the tribunate or the quaestorship, gave doubtless a claim de facto to a place in the senate - inasmuch as the censorial selection especially turned towards the men who had held such offices - but by no means a reversion de jure. Of these two modes of admission, Sulla abolished the former by setting aside - at least practically - the censorship, and altered the latter to the effect that the right of admission to the senate was attached to the quaestorship instead of the aedileship, and at the same time the number of quaestors to be annually nominated was raised to twenty[15]. The prerogative 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 place every five years[16] - likewise fell into abeyance for the future; the irremoveable character which had hitherto de facto belonged to the senators was thus finally fixed by Sulla.

  The total number of senators, which hitherto had presumably not much exceeded the old normal number of 300 and often perhaps had not even reached it, was by these means considerably augmented, perhaps on an average doubled[17] - an augmentation which was rendered necessary by the great increase of the duties of the senate through the transference to it of the functions of jurymen. As, moreover, both the extraordinarily admitted senators and the quaestors were nominated by the comitia tributa, the senate, hitherto resting indirectly on the election of the people[18], was now based throughout on direct popular election; and thus made as close an approach to a 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 converted from a corporation intended merely to advise the magistrates into a board commanding the magistrates and self-governing; it was only a consistent advance in the same direction, when the right of nominating and cancelling senators originally belonging to the magistrates was withdrawn 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 a sufficient 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.

  Regulations As to the Burgesses

  In respect to legislation Sulla contented himself with reviving the regulations made in 666, and securing to the senate the legislative initiative, which had long belonged to it practically, by legal enactment at least as against the tribunes. The burgess-body remained formally sovereign; but so far as its primary assemblies were concerned, while it 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 it to the new burgess-communities, or in bestowing it on Spaniards and Celts en masse; in fact, 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 functions 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 jurisdiction, and its legislative co-operation was once more reduced in substance to the right of giving assent to alterations of the constitution.

  Co-optation Restored in the Priestly Colleges - Regulating of the Qualifications for Office

  Of greater moment was the participation of the burgesses in the elections - a participation, with which they seemed not to be able to dispense without disturbing more than Sulla's superficial restoration could or would disturb. The interferences of the movement party in the sacerdotal elections were set aside; not only the Domitian law of 650, which transferred the election of the supreme priesthoods generally to the people[19], but also the similar older enactments as to the Pontifex Maximus and the Curio Maximus[20] 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 powers 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[21]; whether it was that he regarded the particular composition 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 of the capitalists. Only the qualifications were restored and partially raised. The limit of age requisite for the holding of each office 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 tyrannis 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 magistracy and the holding of another, and at least ten years should elapse before the same office could be held a second time. In this latter enactment the earlier ordinance of 412[22] was revived, instead of the absolute prohibition of all re-election to the consulship, which had been the favourite idea of
the most recent ultra-oligarchical epoch[23]. On the whole, however, Sulla left the elections to take their course, and sought merely to fetter the power of the magistrates in such a way that - let the incalculable caprice of the comitia call to office whomsoever it might - the person elected should not be in a position to rebel against the oligarchy.

  Weakening of the 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 diminished rights, more especially the tribunician office, which appeared to the regent an instrument indispensable doubtless for senatorial government, but yet - as generated by revolution and having a constant tendency to generate fresh revolutions in its turn - requiring to be rigorously and permanently shackled. The tribunician authority had arisen out of the right to annul the official acts of the magistrates by veto, and, eventually, to fine any one who should oppose that right and to take steps for his farther punishment; this was still left to the tribunes, excepting that a heavy fine, destroying as a rule a man's civil existence, 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 probably made dependent on a permission to be previously requested from the senate[24]. Lastly it was added that the holding of the tribunate should in future disqualify for the undertaking of a higher office - an enactment which, like 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 offices to be mutually incompatible. In this way the legislator of the oligarchy 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.

  Limitation of the Supreme Magistracy - Regulation of the Consular and Praetorian Functions before - The Time of Sulla

  The consulship and praetorship also, although viewed by the aristocratic regenerator of Rome with a more favourable eye than the tribunate liable in itself to be regarded with suspicion, by no means escaped that distrust towards its own instruments which is throughout characteristic of oligarchy. They were restricted with more tenderness in point of form, but in a way very sensibly felt.

  Sulla here began with the partition of functions. At the beginning of this period the arrangement in that respect stood as follows. As formerly there had devolved on the two consuls the collective functions of the supreme magistracy, so there still devolved on them all those official 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 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 possessions. 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, sufficed.

  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 (prorogare). 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 urbanus; 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 de jure, 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 office, 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 themselves 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 transmarine command of especial importance at the moment, or include an extraordinary military or judicial commission - 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 office; 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[25]; but this was required rather by the spirit than by the letter of the constitution, and soon the burgesses ceased from intervention in the matter. In the course of the seventh century there were gradually added to the six special departments already existing six others, viz. the five new governorships of Macedonia, Africa, Asia, Narbo, and Cilicia, and the presidency of the standing commission respecting exactions[26]. With the daily extending sphere of action of the Roman government, moreover, it was a 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 departments to be annually occupied. Of course it 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 the term of office, 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 tr
ansmarine command on the expiry of their official year to those magistrates whom their office confined either in law or at any rate in fact to the capital, that is, to the two praetors administering justice in the city and frequently also to the consuls; a course which was compatible with the nature of prorogation, since the official 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.

  Regulation of Their Functions by Sulla - Separation of the Political and Military Authority - Cisalpine Gaul Erected into a Province

  Such was the state of things which Sulla found existing, and which formed the basis of his new arrangement. Its main principles were, a complete separation between the political authority which governed in the burgess-districts and the military authority which governed in the non-burgess-districts, and an uniform extension of the duration of the supreme magistracy from one year to two, the first of which was devoted to civil, and the second to military affairs. Locally the civil and the military authority had certainly been long separated by the constitution, and the former ended at the pomerium, where the latter began; but still the same man held the supreme political and the supreme military power united in his hand. In future the 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 by law from the former, and all political action from the latter. This primarily led to the political separation of the region of 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 territory of the Roman state from the Straits to the Alps including the Illyrian possessions - burgess, Latin, and non-Italian communities without exception--was in the ordinary 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 governorship after the model of the older transmarine commands[27].