The History of Rome, Theodor Mommsen [good english books to read txt] 📗

and senators and equites now divided the functions of jurymen which had so long been an apple of discord between them.

Appeal to the Monarch

The relations of the regal and the republican jurisdiction were on the whole co-ordinate, so that any cause might be initiated as well before the king's bar as before the competent republican tribunal, the latter of course in the event of collision giving way; if on the other hand the one or the other tribunal had pronounced sentence, the cause was thereby finally disposed of. To overturn a verdict pronounced by the jurymen duly called to act in a civil or in a criminal cause even the new ruler was not entitled, except where special incidents, such as corruption or violence, already according to the law of the republic gave occasion for cancelling the jurymen's sentence. On the other hand the principle that, as concerned any decree emanating merely from magistrates, the person aggrieved by it was entitled to appeal to the superior of the decreeing authority, probably obtained even now the great extension, out of which the subsequent imperial appellate jurisdiction arose; perhaps all the magistrates administering law, at least the governors of all the provinces, were regarded so far as subordinates of the ruler, that appeal to him might be lodged from any of their decrees.

Decay of the Judicial System

Certainly these innovations, the most important of which— the general extension given to appeal—cannot even be reckoned absolutely an improvement, by no means healed thoroughly the evils from which the Roman administration of justice was suffering. Criminal procedure cannot be sound in any slave-state, inasmuch as the task of proceeding against slaves lies, if not de jure, at least de facto in the hands of the master. The Roman master, as may readily be conceived, punished throughout the crime of his serf, not as a crime, but only so far as it rendered the slave useless or disagreeable to him; slave criminals were merely drafted off somewhat like oxen addicted to goring, and, as the latter were sold to the butcher, so were the former sold to the fencing-booth. But even the criminal procedure against free men, which had been from the outset and always in great part continued to be a political process, had amidst the disorder of the last generations become transformed from a grave legal proceeding into a faction- fight to be fought out by means of favour, money, and violence. The blame rested jointly on all that took part in it, on the magistrates, the jury, the parties, even the public who were spectators; but the most incurable wounds were inflicted on justice by the doings of the advocates. In proportion as the parasitic plant of Roman forensic eloquence flourished, all positive ideas of right became broken up; and the distinction, so difficult of apprehension by the public, between opinion and evidence was in reality expelled from the Roman criminal practice. "A plain simple defendant," says a Roman advocate of much experience at this period, "may be accused of any crime at pleasure which he has or has not committed, and will be certainly condemned." Numerous pleadings in criminal causes have been preserved to us from this epoch; there is hardly one of them which makes even a serious attempt to fix the crime in question and to put into proper shape the proof or counterproof.(31) That the contemporary civil procedure was likewise in various respects unsound, we need hardly mention; it too suffered from the effects of the party politics mixed up with all things, as for instance in the process of Publius Quinctius (671-673), where the most contradictory decisions were given according as Cinna or Sulla had the ascendency in Rome; and the advocates, frequently non-jurists, produced here also intentionally and unintentionally abundance of confusion. But it was implied in the nature of the case, that party mixed itself up with such matters only by way of exception, and that here the quibbles of advocates could not so rapidly or so deeply break up the ideas of right; accordingly the civil pleadings which we possess from this epoch, while not according to our stricter ideas effective compositions for their purpose, are yet of a far less libellous and far more juristic character than the contemporary speeches in criminal causes. If Caesar permitted the curb imposed on the eloquence of advocates by Pompeius(32) to remain, or even rendered it more severe, there was at least nothing lost by this; and much was gained, when better selected and better superintended magistrates and jurymen were nominated and the palpable corruption and intimidation of the courts came to an end. But the sacred sense of right and the reverence for the law, which it is difficult to destroy in the minds of the multitude, it is still more difficult to reproduce. Though the legislator did away with various abuses, he could not heal the root of the evil; and it might be doubted whether time, which cures everything curable, would in this case bring relief.

Decay of the Roman Military System

The Roman military system of this period was nearly in the same condition as the Carthaginian at the time of Hannibal. The governing classes furnished only the officers; the subjects, plebeians and provincials, formed the army. The general was, financially and militarily, almost independent of the central government, and, whether in fortune or misfortune, substantially left to himself and to the resources of his province. Civic and even national spirit had vanished from the army, and the esprit de corps was alone left as a bond of inward union. The army had ceased to be an instrument of the commonwealth; in a political point of view it had no will of its own, but it was doubtless able to adopt that of the master who wielded it; in a military point of view it sank under the ordinary miserable leaders into a disorganized useless rabble, but under a right general it attained a military perfection which the burgess-army could never reach. The class of officers especially had deeply degenerated. The higher ranks, senators and equites, grew more and more unused to arms. While formerly there had been a zealous competition for the posts of staff officers, now every man of equestrian rank, who chose to serve, was sure of a military tribuneship, and several of these posts had even to be filled with men of humbler rank; and any man of quality at all who still served sought at least to finish his term of service in Sicily or some other province where he was sure not to face the enemy. Officers of ordinary bravery and efficiency were stared at as prodigies; as to Pompeius especially, his contemporaries practised a military idolatry which in every respect compromised them. The staff, as a rule, gave the signal for desertion and for mutiny; in spite of the culpable indulgence of the commanders proposals for the cashiering of officers of rank were daily occurrences. We still possess the picture— drawn not without irony by Caesar's own hand—of the state of matters at his own headquarters when orders were given to march against Ariovistus, of the cursing and weeping, and preparing of testaments, and presenting even of requests for furlough. In the soldiery not a trace of the better classes could any longer be discovered. Legally the general obligation to bear arms still subsisted; but the levy, if resorted to alongside of enlisting, took place in the most irregular manner; numerous persons liable to serve were wholly passed over, while those once levied were retained thirty years and longer beneath the eagles. The Roman burgess-cavalry now merely vegetated as a sort of mounted noble guard, whose perfumed cavaliers and exquisite high-bred horses only played a part in the festivals of the capital; the so-called burgess-infantry was a troop of mercenaries swept together from the lowest ranks of the burgess-population; the subjects furnished the cavalry and the light troops exclusively, and came to be more and more extensively employed also in the infantry. The posts of centurions in the legions, on which in the mode of warfare of that time the efficiency of the divisions essentially depended, and to which according to the national military constitution the soldier served his way upward with the pike, were now not merely regularly conferred according to favour, but were not unfrequently sold to the highest bidder. In consequence of the bad financial management of the government and the venality and fraud of the great majority of the magistrates, the payment of the soldiers was extremely defective and irregular.

The necessary consequence of this was, that in the ordinary course of things the Roman armies pillaged the provincials, mutinied against their officers, and ran off in presence of the enemy; instances occurred where considerable armies, such as the Macedonian army of Piso in 697,(33) were without any proper defeat utterly ruined, simply by this misconduct. Capable leaders on the other hand, such as Pompeius, Caesar, Gabinius, formed doubtless out of the existing materials able and effective, and to some extent exemplary, armies; but these armies belonged far more to their general than to the commonwealth. The still more complete decay of the Roman marine—which, moreover, had remained an object of antipathy to the Romans and had never been fully nationalized— scarcely requires to be mentioned. Here too, on all sides, everything that could be ruined at all had been reduced to ruin under the oligarchic government.

Its Reorganization by Caesar

The reorganization of the Roman military system by Caesar was substantially limited to the tightening and strengthening of the reins of discipline, which had been relaxed under the negligent and incapable supervision previously subsisting. The Roman military system seemed to him neither to need, nor to be capable of, radical reform; he accepted the elements of the army, just as Hannibal had accepted them. The enactment of his municipal ordinance that, in order to the holding of a municipal magistracy or sitting in the municipal council before the thirtieth year, three years' service on horseback—that is, as officer—or six years' service on foot should be required, proves indeed that he wished to attract the better classes to the army; but it proves with equal clearness that amidst the ever-increasing prevalence of an unwarlike spirit in the nation he himself held it no longer possible to associate the holding of an honorary office with the fulfilment of the time of service unconditionally as hitherto. This very circumstance serves to explain why Caesar made no attempt to re-establish the Roman burgess-cavalry. The levy was better arranged, the time of service was regulated and abridged; otherwise matters remained on the footing that the infantry of the line were raised chiefly from the lower orders of the Roman burgesses, the cavalry and the light infantry from the subjects. That nothing was done for the reorganization of the fleet, is surprising.

Foreign Mercenaries
Adjutants of the Legion

It was an innovation—hazardous beyond doubt even in the view of its author—to which the untrustworthy character of the cavalry furnished by the subjects compelled him,(34) that Caesar for the first time deviated from the old Roman system of never fighting with mercenaries, and incorporated in the cavalry hired foreigners, especially Germans. Another innovation was the appointment of adjutants of the legion (-legati legionis-). Hitherto the military tribunes, nominated partly by the burgesses, partly by the governor concerned, had led the legions in such a way that six of them were placed over each legion, and the command alternated among these; a single commandant of the legion was appointed by the general only as a temporary and extraordinary measure. In subsequent times on the other hand those colonels or adjutants of legions appear as a permanent and organic institution, and as nominated no longer by the governor whom they obey, but by the supreme command in Rome; both changes seem referable to Caesar's arrangements connected with the Gabinian law.(35) The reason for the introduction of this important intervening step in the military hierarchy must be sought partly in the necessity for a more energetic centralization of the command, partly in the felt want of capable superior officers, partly and chiefly in the design of providing a counterpoise to the governor by associating with him one or more colonels nominated by the Imperator.

The New Commandership-in-Chief

The most essential change in the military system consisted in the institution of a permanent military head in the person of the Imperator, who, superseding the previous unmilitary and in every respect incapable governing corporation, united in his hands the whole control of the army, and thus converted it from a direction which for the most part was merely nominal into a real and energetic supreme command. We are not properly informed as to the position which this supreme command occupied towards the special commands hitherto omnipotent in their respective spheres. Probably the analogy of the relation