The History of Rome, Book IV. Theodor MommsenЧитать онлайн книгу.
at discretion, but was under definite contingencies to be accorded by law.
Jury Courts
While a gold mine was thus opened for the mercantile class, and the members of the new partnership constituted a great financial power imposing even for the government—a "senate of merchants"-a definite sphere of public action was at the same time assigned to them in the jury courts. The field of the criminal procedure, which by right came before the burgesses, was among the Romans from the first very narrow, and was, as we have already stated,101 still further narrowed by Gracchus; most processes—both such as related to public crimes, and civil causes—were decided either by single jurymen [-indices-], or by commissions partly permanent, partly extraordinary. Hitherto both the former and the latter had been exclusively taken from the senate; Gracchus transferred the functions of jurymen—both in strictly civil processes, and in the case of the standing and temporary commissions— to the equestrian order, directing a new list of jurymen to be annually formed after the analogy of the equestrian centuries from all persons of equestrian rating, and excluding the senators directly, and the young men of senatorial families by the fixing of a certain limit of age, from such judicial functions.102 It is not improbable that the selection of jurymen was chiefly made to fall on the same men who played the leading part in the great mercantile associations, particularly those farming the revenues in Asia and elsewhere, just because these had a very close personal interest in sitting in the courts; and, if the lists of jurymen and the societies of -publicani- thus coincided as regards their chiefs, we can all the better understand the significance of the counter-senate thus constituted. The substantial effect of this was, that, while hitherto there had been only two authorities in the state—the government as the administering and controlling, and the burgesses as the legislative, authority—and the courts had been divided between them, now the moneyed aristocracy was not only united into a compact and privileged class on the solid basis of material interests, but also, as a judicial and controlling power, formed part of the state and took its place almost on a footing of equality by the side of the ruling aristocracy. All the old antipathies of the merchants against the nobility could not but thenceforth find only too practical an expression in the sentences of the jurymen; above all, when the provincial governors were called to a reckoning, the senator had to await a decision involving his civic existence at the hands no longer as formerly of his peers, but of great merchants and bankers. The feuds between the Roman capitalists and the Roman governors were transplanted from the provincial administration to the dangerous field of these processes of reckoning. Not only was the aristocracy of the rich divided, but care was taken that the variance should always find fresh nourishment and easy expression.
Monarchical Government Substituted for That of the Senate
With his weapons—the proletariate and the mercantile class—thus prepared, Gracchus set about his main work, the overthrow of the ruling aristocracy. The overthrow of the senate meant, on the one hand, the depriving it of its essential functions by legislative alterations; and on the other hand, the ruining of the existing aristocracy by measures of a more personal and transient kind. Gracchus did both. The function of administration, in particular, had hitherto belonged exclusively to the senate; Gracchus took it away, partly by settling the most important administrative questions by means of comitial laws or, in other words, practically through tribunician dictation, partly by restricting the senate as much as possible in current affairs, partly by taking business after the most comprehensive fashion into his own hands. The measures of the former kind have been mentioned already: the new master of the state without consulting the senate dealt with the state-chest, by imposing a permanent and oppressive burden on the public finances in the distribution of corn; dealt with the domains, by sending out colonies not as hitherto by decree of the senate and people, but by decree of the people alone; and dealt with the provincial administration, by overturning through a law of the people the financial constitution given by the senate to the province of Asia and substituting for it one altogether different. One of the most important of the current duties of the senate—that of fixing at its pleasure the functions for the time being of the two consuls—was not withdrawn from it; but the indirect pressure hitherto exercised in this way over the supreme magistrates was limited by directing the senate to fix these functions before the consuls concerned were elected. With unrivalled activity, lastly, Gaius concentrated the most varied and most complicated functions of government in his own person. He himself watched over the distribution of grain, selected the jurymen, founded the colonies in person notwithstanding that his magistracy legally chained him to the city, regulated the highways and concluded building- contracts, led the discussions of the senate, settled the consular elections—in short, he accustomed the people to the fact that one man was foremost in all things, and threw the lax and lame administration of the senatorial college into the shade by the vigour and versatility of his personal rule. Gracchus interfered with the judicial omnipotence, still more energetically than with the administration, of the senate. We have already mentioned that he set aside the senators as jurymen; the same course was taken with the jurisdiction which the senate as the supreme administrative board allowed to itself in exceptional cases. Under severe penalties he prohibited— apparently in his renewal of the law -de provocatione-103—the appointment of extraordinary commissions of high treason by decree of the senate, such as that which after his brother's murder had sat in judgment on his adherents. The aggregate effect of these measures was, that the senate wholly lost the power of control, and retained only so much of administration as the head of the state thought fit to leave to it. But these constitutive measures were not enough; the governing aristocracy for the time being was also directly assailed. It was a mere act of revenge, which assigned retrospective effect to the last-mentioned law and thereby compelled Publius Popillius—the aristocrat who after the death of Nasica, which had occurred in the interval, was chiefly obnoxious to the democrats—to go into exile. It is remarkable that this proposal was only carried by 18 to 17 votes in the assembly of the tribes—a sign how much the influence of the aristocracy still availed with the multitude, at least in questions of a personal interest. A similar but far less justifiable decree—the proposal, directed against Marcus Octavius, that whoever had been deprived of his office by decree of the people should be for ever incapable of filling a public post—was recalled by Gaius at the request of his mother; and he was thus spared the disgrace of openly mocking justice by legalizing a notorious violation of the constitution, and of taking base vengeance on a man of honour, who had not spoken an angry word against Tiberius and had only acted constitutionally and in accordance with what he conceived to be his duty. But of very different importance from these measures was the scheme of Gaius—which, it is true, was hardly carried into effect— to strengthen the senate by 300 new members, that is, by just about as many as it hitherto had contained, and to have them elected from the equestrian order by the comitia—a creation of peers after the most comprehensive style, which would have reduced the senate into the most complete dependence on the chief of the state.
Character of the Constitution of Gaius Gracchus
This was the political constitution which Gaius Gracchus projected and, in its most essential points, carried out during the two years of his tribunate (631, 632), without, so far as we can see, encountering any resistance worthy of mention, and without requiring to apply force for the attainment of his ends. The order of sequence in which these measures were carried can no longer be recognized in the confused accounts handed down to us, and various questions that suggest themselves have to remain unanswered. But it does not seem as if, in what is missing, many elements of material importance have escaped us; for as to the principal matters we have quite trustworthy information, and Gaius was by no means, like his brother, urged on further and further by the current of events, but evidently had a well- considered and comprehensive plan, the substance of which he fully embodied in a series of special laws. Now the Sempronian constitution itself shows very clearly to every one who is able and willing to see, that Gaius Gracchus did not at all, as many good-natured people in ancient and modern times have supposed, wish to place the Roman republic on new democratic bases, but that on the contrary he wished to abolish it and to introduce in its stead a -tyrannis– that is, in modern language, a monarchy not of the feudal or of the theocratic, but of the Napoleonic absolute, type—in the form of a magistracy continued for life by regular
IV. III. Modifications of the Penal Law
We still possess a great portion of the new judicial ordinance— primarily occasioned by this alteration in the personnel of the judges— for the standing commission regarding extortion; it is known under the name of the Servilian, or rather Acilian, law -de repetundis-.
This and the law -ne quis iudicio circumveniatur- may have been identical.