The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

CHAPTER XVII
COMITIAL LEGISLATION
From Sulla to the End of the Republic, 82 to about 30

I. The Cornelian Reaction
82-70

In November, 82, after destroying his political enemies by war and proscription, Sulla was ready to begin the work of restoring the aristocratic constitution. As both consuls, Cn. Papirius Carbo and C. Marius the younger,[2553] were dead, and as Sulla desired above all things to give his legislation a constitutional basis, he advised the senate to appoint an interrex. The choice fell on L. Valerius Flaccus, princeps senatus, a moderate in politics. Thereupon Sulla withdrew from Rome, leaving the civil authorities free in appearance to act at their discretion. In reality he had determined to retain control of affairs; and accordingly he wrote to Valerius advising the appointment of a dictator, not for a fixed time but till the general unrest should be quieted. He suggested himself as a suitable person for the place. Valerius obediently proposed and carried a law through the comitia centuriata, (1) which made Sulla dictator rei publicae constituendae for an indefinite time with absolute power over the lives and property of the citizens,[2554] (2) which legalized all his past acts, both as consul and as proconsul,[2555] including his arrangements in Asia as well as his proscriptions and confiscations.[2556] He returned to the city, appointed Valerius his magister equitum,[2557] and took to himself twenty-four lictors in addition to a less formal guard of servants and friends.[2558] Without delay he began the promulgation of laws, which undoubtedly he had long been planning. They are here grouped according to subject, with an occasional reference to their chronological relation.

First he applied himself to curbing the power of the tribunate, an institution in which centred the strength of the democracy. A statute for that purpose he must have felt compelled to draw up and pass before the next tribunician election. Instead of renewing his earlier law, however, for absolutely depriving the tribunes of initiative in legislation,[2559] he enacted simply that the previous consent of the senate should be necessary to bills brought by them before the tribes.[2560] By another article of this law he limited the right of tribunes to address the people in contiones.[2561] The range of their intercession was also greatly limited.[2562] Their function of bringing prosecutions before the people underwent restriction not only through the laws affecting the quaestiones but also by special enactment;[2563] for had they retained their unlimited right to prosecute, they could at once have regained all their other power.[2564] Little was left them but their original auxilii latio adversus imperium.[2565] Finally the office was made unattractive to the ambitious by the provision that those who held it were thereby disqualified for other magistracies.[2566] By these measures the most vital and powerful institution in the state was reduced to a shadow without substance.[2567] The return to conditions preceding the Hortensian legislation, in some respects even the Decemviral legislation, was, as Fröhlich[2568] remarks, a backward step such as finds few parallels in history.

About a year[2569] after limiting the power of the tribunes Sulla proceeded to regulate the other offices through his lex de magistratibus, 81. This statute, making use of the principle contained in the lex Villia annalis,[2570] prescribed (1) that no one could be consul before he had been praetor or praetor before he had been quaestor,[2571] (2) that a space of two years should intervene between the holding of consecutive offices.[2572] (3) The minimal age of the quaestor it fixed at thirty-seven.[2573] The fortieth year was therefore the age for the praetorship and the forty-third for the office of consul. The aedileship, while bringing the holder a positive advantage for his future career, was never an essential step to a higher place. But in case this office was taken, the biennial interval had to be observed.[2574] The quaestorship Sulla made the sole avenue to the senate, so as to dispense with the revision of the list by the censors.[2575] The statute of 151, forbidding reëlection to the consulship,[2576] he repealed, and substituted for it the article of the Genucian plebiscite of 442[2577] which fixed an interval of ten years between the expiration of any office and reëlection to the same.[2578] He increased the number of quaestors, at this time certainly more than eight,[2579] to twenty, with the object not only of supplying an administrative need but also of creating the required number of senators.[2580] It was necessary also to raise the number of praetors from six to eight in order to provide presidents for the new quaestiones perpetuae.[2581]

The reforms above mentioned, together with the doubling of the number of senators to be considered below, naturally led to the enlargement of the chief sacerdotal colleges. The augurs and pontiffs were increased from nine to fifteen and the decemviri sacris faciundis were made quindecemviri.[2582] Another measure, which seems to have been an article of the same act, repealed the Domitian lex de sacerdotiis,[2583] and thus restored to these colleges, and at the same time to the epulones, their right of filling vacancies by coöptation,[2584] leaving to the people the function only of electing the head of the pontifical college from among the members.[2585] As the object of the first article was evidently to provide places for some of the new magistrates and senators,[2586] the coöptation doubtless immediately followed the enactment of the law.

In increasing the number of praetors to eight[2587] Sulla provided that during their year of office they were to remain in the city and devote their whole time to the administration of justice. After the expiration of their term they were to take upon themselves as propraetors the command of provinces. In like manner the consuls were to remain in Italy during their term, in the ordinary course of events to give their entire attention to the affairs of peace; only after they had retired from office were they expected as proconsuls to govern provinces. In brief, Sulla by law established an absolute distinction between the civil magistrate and the military promagistrate.[2588] The lex de provinciis ordinandis[2589] recognized the right of the senate to determine which provinces should be consular and which pretorian in the way provided for by the Sempronian law on this subject.[2590] The Cornelian statute did not, however, any more than the Sempronian, forbid the assignment of a province to a promagistrate by popular vote; and it recognized the right of the senate to create promagistracies.[2591] But it established the rule (1) that the two consuls should receive for a year of promagisterial imperium the provinces declared to be consular; and that they should either agree as to which each should take or cast lots for them;[2592] (2) that the senate should annually assign the eight retiring praetors to the remaining provinces, also for a year of promagistracy.[2593] The same law directed that the promagistrate, who had received the imperium in legal form, should retain it till his return to the city and the celebration of his triumph,[2594] provided he merited one. To avoid conflicts between retiring and incoming governors it ordained that the former should leave the province within thirty days after the latter had entered it.[2595] The law further contained the definite regulation of the supplies and honors granted the legati by the provincials.[2596] The tendency of Sulla’s legislation thus far considered was to weaken the civil functionaries (1) by restricting the tribunician initiative. (2) by increasing the number of quaestors and praetors. (3) by depriving the higher civil magistrates of the military imperium. The last-mentioned loss was in some measure an advantage to the senate but in a far higher degree to the promagistrates, who from this time began to overshadow the republic.

The power taken from the tribunes necessarily went to the senate, to restore to it the full control of legislation which it had possessed before the enactment of the Hortensian statute. Under the reformed constitution it was to be supreme. As it had dwindled during the recent civil war and proscription,[2597] and as the performance of jury service, which Sulla was restoring to its members, required a large number of men, he added three hundred, mostly from the equestrian rank, but including some centurions and other insignificant persons who were likely to do his bidding.[2598] Appian[2599] states that these new senators were elected by the tribes, possibly meaning the tribal comitia.[2600] But as that process of selection would have required an enormous length of time, it is far more probable that each tribe had the privilege of choosing a definite number, perhaps nine, after the precedent of the lex Plautia iudiciaria.[2601] This addition would raise the number to about four hundred and fifty. As the normal membership from Sulla to Caesar was about six hundred,[2602] we may assume either that, independently of the extraordinary adlectio by the tribes, he made the usual censorial enrolment of the recently retired magistrates, or that he left it to time to fill up the senate to the desired number by the annual admission of retired quaestors.[2603] Henceforth it was to be recruited automatically by this process, without any action on the part of the censors, who were thus deprived of the only important function remaining to them.[2604] Closely connected with the increase in membership is the lex iudiciaria,[2605] which restored the quaestiones to the senators.[2606] It was enacted near the end of 81, but prior to the increase in the number of quaestors.[2607] Before this act the courts had remained under the control of the knights in spite of the lex Plautia of 89, which seems not to have continued long in force.[2608]

In the reorganization of the criminal courts (year 81) Sulla passed criminal laws, in which he regulated the procedure of the existing courts and created new quaestiones perpetuae.[2609] His reform increased the number to seven, four of which were concerned almost wholly with maladministration of office: (1) quaestio repetundarum, extortion,[2610] (2) quaestio ambitus, bribery in elections,[2611] (3) quaestio peculatus, misappropriation of public funds[2612] and sacrilege,[2613] (4) quaestio maiestatis, injury to the majesty of the Roman name, of which a private person as well as a magistrate might be guilty.[2614] The three following were concerned with common crimes: (5) quaestio inter sicarios et veneficos, assassination, poisoning, and arson,[2615] (6) quaestio de falsis, counterfeiting and falsification of testaments and other forgery,[2616] (7) quaestio iniuriarum, acute personal violence, housebreaking, and probably defamation of character.[2617] These laws concerning quaestiones contained provisions for granting the accused the privilege of deciding whether the vote should be oral or by ballot,[2618] and they directed that the order of voting should be determined by lot.[2619] The first of these two articles aimed to make the jurors individually responsible, and the second to prevent influential men from prejudicing the case by giving their opinions first.[2620]