Colleen McCullough - 3. Fortune's Favorites

On the Kalends of September the real legislating began, an onslaught of such dimensions that the Senate reeled. The present law courts are clumsy, time consuming and not realistic," said Sulla from his curule chair. "No comitia should hear civil or criminal charges the procedures are too long, too liable to political manipulation, and too influenced by the fame or popularity of the accused not to mention his defending advocates. And a jury which might be as large as several thousand electors is as unwieldy as it is injudicious." Having thus neatly disposed of a trial process in one of the Assemblies, Sulla went on. I will give Rome seven permanent standing courts. Treason, extortion, embezzlement, bribery, forgery, violence, and murder. All of these except the last one involve the State or the Treasury in some way, and will be presided over by one of the six junior praetors, according to the lots. The murder court will try all cases of murder, arson, magic, poison, perjury, and a new crime which I will call judicial murder that is, exile achieved through the agency of a court. I expect that the murder court will be the busiest, though the simplest. And I will see it presided over by a man who has been aedile, though not yet praetor. The consuls will appoint him." Hortensius sat horrified, for his greatest victories had been fought in one of the Assemblies, where his style and his ability to sway a big crowd had made of him a legend; juries of the size staffing a court were too intimate to suit him. "Genuine advocacy will die!" he cried. "What does that matter?" asked Sulla, looking astonished. "More important by far is the judicial process, and I intend to take that off the Assemblies, Quintus Hortensius, make no mistake about it! However, from the Assembly of the People I will seek a law to sanction the establishment of my standing courts, and by the provisions of that law all three Assemblies will formally hand over their juridical duties to my standing courts." "Excellent!" said the historian Lucius Cornelius Sisenna. "Every man tried in court will therefore be tried by the consent of the Assemblies! That means a man will not be able to appeal to an Assembly after the court has delivered its verdict." "Exactly, Sisenna! It renders the appeal process null and void, and eliminates the Assemblies as judges of men." "That is disgusting!" shouted Catulus. "Not only disgusting, but absolutely unconstitutional! Every Roman citizen is entitled to an appeal!" "Appeal and trial are one and the same, Quintus Lutatius," said Sulla, "and part of Rome's new constitution." "The old constitution was good enough in matters like this!" In matters like this history has shown us all too clearly that the provisions of the old constitution led to many a man who ought to have been convicted getting off because some Assembly was persuaded by some trick rhetoric to overturn a legal court decision. The political capital made out of such Assembly trials and appeals was odious, Quintus Lutatius. Rome is too big and too busy these days to be mired down in customs and procedures invented when Rome was little more than a village. I have not denied any man a fair trial. I have in fact made his trial fairer. And made the procedure simpler." The juries?'' asked Sisenna. Will be purely senatorial one more reason why I need a pool of at least four hundred men in the Senate. Jury duty was a burden, and will be a burden when there are seven courts to staff. However, I intend to reduce the size of juries. The old fifty one man jury will be retained only in cases of the highest crimes against the State. In future jury size will depend on the number of men available to sit, and if for any reason there is an even number of men on a jury, then a tied decision will count as an acquittal. The Senate is already divided into decuries of ten men, each headed by a patrician senator. I will use these decuries as the jury base, though no decury will be permanently seconded to duty in one particular court. The jury for each individual trial in any court will be selected by lot after the trial date has been set." "I like it," said the younger Dolabella. "I hate it!" cried Hortensius. "What happens if my decury is drawn for jury duty while I myself am occupied in acting for a defendant in another trial?'' "Why, then you'll just have to learn to fit both in," said Sulla, smiling mirthlessly. "Whores do it, Hortensius! You ought to be able to." "Oh, Quintus, shut your mouth!" breathed Catulus. "Who decides the number of men to staff a particular jury?" asked the younger Dolabella. "The court president," said Sulla, "but only to a limited extent. The real determination will depend upon the number of decuries available. I would hope to see a figure between twenty five and thirty five men. Not all of a decury will be seconded at once that would keep jury numbers even." "The six junior praetors will be each given presidency of a court by lot," said Metellus Pius. "Does that mean the old system will still prevail to decide who will be urban and who foreign praetor?" "No, I will abolish giving urban praetor to the man at the top of the poll, and foreign praetor to the man who comes in second," said Sulla. "In future, all eight jobs will be decided purely by the lots." But Lepidus wasn't interested in which praetor would get what; he asked the question he already knew the answer to, just to make Sulla say it. "You therefore intend to remove all court participation from the knights?'' "Absolutely. With one brief intermission, the control of Rome's juries has rested with the knights since the time of Gaius Gracchus. That will stop! Gaius Gracchus neglected to incorporate a clause in his law which allowed a corrupt knight juror to be prosecuted. Senators are fully liable under the law, I will make sure of that!" "So what is left for the urban and foreign praetors to do?" asked Metellus Pius. "They will be responsible for all civil litigation," said Sulla, "as well as, in the case of the foreign praetor, criminal litigation between non Romans. However, I am removing the right of the urban and foreign praetor to make a judgment in a civil case himself instead, he will pass the case to a single judge drawn by lot from a panel of senators and knights, and that man will act as iudex. His decision will be binding on all of the parties, though the urban or foreign praetor may elect to supervise the proceedings." Catulus now spoke because Hortensius, still red faced and angry at Sulla's gibe, would not ask. "As the constitution stands at the moment, Lucius Cornelius, only a legally convoked Assembly can pass a sentence of death. If you intend to remove all trials from the Assemblies, does this mean you will empower your courts to levy a death sentence?" No, Quintus Lutatius, it does not. It means the opposite. The death sentence will no longer be levied at all. Future sentences will be limited to exiles, fines, and/or confiscation of some or all of a convicted man's property. My new laws will also regulate the activity of the damages panel this will consist of between two and five of the jurors chosen by lot, and the court president." "You have named seven courts," said Mamercus. "Treason, extortion, embezzlement, bribery, forgery, violence, and murder. But there is already a standing court in existence for cases of public violence under the lex Plautia. I have two questions: one, what happens to this court? and two, what happens in cases of sacrilege?" "The lex Plautia is no longer necessary," said Sulla. He leaned back, looking pleased; the House seemed happy at the idea of having criminal procedures removed from the comitia. "Crimes of violence will be tried either in my violence court or in the treason court if the magnitude is great enough. As for sacrilege, offenses of this nature are too infrequent to warrant a standing court. A special court will be convened when necessary, to be presided over by an ex aedile. Its conduct, however, will be the same as the permanent courts no right of appeal to the Assemblies. If the matter concerns the un chastity of a Vestal Virgin, the sentence of being buried alive will continue to be enforced. But her lover or lovers will be tried in a separate court and will not face a death sentence." He cleared his throat, continued. "I am nearly done for today. First of all, a word about the consuls. It is not good for Rome to see the consuls embroiled in foreign wars. These two men during their year in office should be directly responsible for the welfare and well being of Rome and Italy, nothing else. Now that the tribunes of the plebs have been put in their proper place, I hope to see the consuls more active in promulgating laws. And secondly, conduct within the Senate itself. In future, a man may rise to his feet to speak if he so wishes, but he will no longer be permitted to stride up and down the floor as he does so. He must speak from his allocated place, either seated or standing. Noise will not be tolerated. No applause, no drumming of feet, no calls or outcries will be tolerated. The consuls will levy a fine of one thousand denarii upon any man who infringes my new standards of conduct within the House." A small group of senators clustered below the Curia Hostilia steps after Sulla had dismissed the meeting; some of them (like Mamercus and Metellus Pius) were Sulla's men to the last, whereas others (like Lepidus and Catulus) agreed that Sulla was at best an evil necessity. "There's no doubt," said the Piglet, "that these new courts will take a great burden off the legislating bodies no more fiddling about trying to induce the Plebeian Assembly to enact a special court to try someone, no more worrying about some unknown knight taking a bribe yes, they are good reforms." "Oh come, Pius, you're old enough to remember what it was like during the couple of years after Caepio the Consul gave the courts back to the Senate!" cried Philippus. "I was never not on some jury or other, even during the summer!" He turned to Marcus Perperna, his fellow censor. "You remember, surely." Only too well,'' said Perperna with feeling. "The trouble with you two," said Catulus, "is that you want the Senate to control juries, but you complain when it's your turn to serve. If we of the Senate want to dominate the trial process, then we have to be prepared to take the pain along with the pleasure." "It won't be as difficult now as it was then," said Mamercus pacifically. "There are more of us." "Go on, you're the Great Man's son in law, he pulls your strings and you howl like a dog or bleat like a sheep!" snapped Philippus. "There can't be enough of us! And with permanent courts there will be no delays at least back then we could hold things up by getting the Assemblies to dither about for a few market intervals while we had a holiday. Now, all the president of a court has to do is empanel his jury! And we won't even know in advance whether we'll be sitting on it, so we won't be able to plan a thing. Sulla says the lots won't be drawn until after the trial date has been set. I can see it now! Two days into a lovely summer laze by the sea, and it's off back to Rome to sit on some wretched jury!" "Jury duty ought to have been split," said Lepidus. "Keep the important courts for the Senate you know, extortion and treason. The murder court could function properly on knight jurors it would probably function properly if its juries were drawn from the Head Count!" "What you mean," said Mamercus acidly, "is that juries trying senators should be composed of senators, whereas juries trying the rest of the world on charges like witchcraft or poisoning are not important enough for senators." "Something like that," said Lepidus, smiling. "What I'd like to know," said the Piglet, deeming it time to change the subject a little, "is what else he plans to legislate." "I'd be willing to bet it won't be to our advantage!" said Hortensius. "Rubbish!" said Mamercus, not a bit dismayed at being called Sulla's puppet. "Everything he's done so far has strengthened the influence of the Senate and tried to bring Rome back to the old values and the old customs." "It may be," said Perperna thoughtfully, "that it is too late to go back to the old ways and the old customs. A lot of what he's abolished or changed has been with us long enough to deserve being lumped in with the rest of the mos maiorum. These days the Plebeian Assembly is like a club for playing knucklebones or dice. That won't last because it can't last. The tribunes of the plebs have been Rome's major legislators for centuries." "Yes, what he did to the tribunes of the plebs isn't at all popular," said Lepidus. "You're right. The new order of things in the Plebeian Assembly can't last."