3. Fortune's Favorites Page 33

  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."

  On the Kalends of October the Dictator produced new shocks; he shifted the sacred boundary of Rome exactly one hundred feet in the vicinity of the Forum Boarium, and thus made Rome a little bit larger. No one had ever tampered with the pomerium after the time of the Kings of Rome; to do so was considered a sign of royalty, it was an un Republican act. But did that stop Sulla? Not in the least. He would shift the pomerium, he announced, because he now declared the Rubico River the official boundary between Italy and Italian Gaul. That river had been so regarded for a very long time, but the last formal fixing of the boundary had been at the Metaurus River. Therefore, said Sulla blandly, he could justifiably be said to have enlarged the territory of Rome within Italy, and he would mark the event by moving Rome's pomerium an infinitesmal hundred feet. "Which as far as I'm concerned," said Pompey to his new (and very pregnant) wife, "is splendid!" Aemilia Scaura looked puzzled. "Why?" she asked. She did a lot of asking why and might thus have irritated a less egotistical man, but Pompey adored being asked why. "Because, my darling little roly poly girl who looks as if she has swallowed a giant melon whole" he tickled her tummy with a leer and a wink "I own most of the Ager Gallicus south of Ariminum, and it now falls officially into Umbria. I am now one of the biggest landowners in all Italy, if not the very biggest. I'm not sure. There are men who own more land thanks to their holdings in Italian Gaul, like the Aemilii Scauri your tata, my delectable wee pudding and the Domitii Ahenobarbi, but I inherited most of the Lucilian estates in Lucania, and with the southern half of the Ager Gallicus added to my lands in Umbria and northern Picenum, I doubt I have a rival inside Italy proper! There are many going around deploring the Dictator's action, but he'll get no criticism from me." "I can't wait to see your lands," she said wistfully, putting her hand on the mound of her abdomen. "As soon as I am able to travel, Magnus you promised." They were sitting side by side on a couch, and he turned to tip her over with a gentle push in just the right place, then pinched her lips painlessly between his fingers and kissed her all over her ecstatic face. "More!" she cried when he finished. His head hung over hers, his impossibly blue eyes twinkled. "And who's the greedy little piggy wiggy?" he asked. "The greedy little piggy wiggy should know better, shouldn't she?" She fell into cascades of giggles, which provoked him to tickle her because he liked the sound of them so; but soon he wanted her so badly that he had to get up and move away. "Oh, bother this wretched baby!" she cried crossly. "Soon, my adorable kitten," he managed to say cheerfully. "Let's get rid of Glabrio before we try for our own." And indeed Pompey had been continent, determined that no one, least of all Aemilia Scaura's stiff and haughty Caecilius Metellus relatives, should be able to say that he was not the most considerate and kindest of husbands; Pompey wanted badly to join the clan. Learning that Young Marius had made an intimate of Praecia, Pompey had taken to visiting her sumptuous house, for he deemed it no comedown to sample someone else's leavings provided that the someone else had been famous, or stuffed with clout, or awesomely noble. Praecia was, besides, a sexual delight sure to please him in ways he knew very well Aemilia Scaura would not when her turn came. Wives were for the serious business of making babies, though poor Antistia had not even been accorded that joy. If he liked being married which he did it was because Pompey had the happy knack of knowing how to make a wife besotted. He paid her compliments galore, he didn't care how silly what he said might sound were Metellus Pius Pontifex Maximus to overhear (he just made very sure he never said things like that in the hearing of Metellus Pius Pontifex Maximus), and he maintained a jolly, good tempered attitude which disposed her to love him. Yet clever Pompey! he allowed her to have moods, to weep, to carp a trifle, to chastise him. And if neither Antistia nor Aemilia Scaura knew that he manipulated them while they thought they did the manipulating, then that was all for the good; all parties were satisfied, and strife was nonexistent. His gratitude to Sulla for bestowing Scaurus Princeps Senatus's daughter upon him knew almost no bounds. He understood that he was more than good enough for Scaurus's daughter, but it also reinforced his positive opinion of himself to know that a man like Sulla considered him good enough for Scaurus's daughter. Of course he was quite aware that it suited Sulla to bind him by a tie of marriage, and that too contributed to his positive opinion of himself; Roman aristocrats like Glabrio could be thrown aside at the Dictator's whim, but the Dictator was concerned enough about Gnaeus Pompeius Magnus to give him what he had taken from Glabrio. Sulla might (for example) have given Scaurus's daughter to his own nephew, Publius Sulla, or to the much favored Lucullus. Pompey had set his heart against be
longing to the Senate, but it was no part of his plans to alienate himself from the circle of the Dictator; rather, his dreams had taken a fresh direction, and he now saw himself becoming the sole military hero in the history of the Republic who would seize proconsular commands without being at the very least a senator. They said it couldn't be done. They had sneered at him, smirked at him, mocked him. But those were dangerous activities when they were aimed at Gnaeus Pompeius Magnus! In the years to come he would make every last one of them suffer and not by killing them, as Marius might have nor by proscribing them, as Sulla would have. He would make them suffer by forcing them to come to him, by maneuvering them into a position so invidious that the pain of being nice to him would well nigh kill their fine opinions of themselves. And that was far sweeter to Pompey than seeing them die! So it was that Pompey managed to contain his desire for this delectable sprig of the gens Aemilia, contented himself with many visits to Praecia, and consoled himself by eyeing Aemilia Scaura's belly, never again to be filled with any but his progeny. She was due to have her baby at some time early in December, but toward the end of October she went into a sudden and terrible labor. Thus far her pregnancy had been uneventful, so this very late miscarriage came as a shock to everyone, including her doctors. The scrawny male child who came so prematurely into the world died the day after, and was not long survived by Aemilia Scaura, who bled her way inexorably from pain to eternal oblivion. Her death devastated Pompey. He had genuinely loved her in his proprietary, unselective fashion; if Sulla had searched Rome for the right bride for Pompey in a conscious effort to please him, he could not have chosen better than the giggly, slightly dense, completely ingenuous Aemilia Scaura. The son of a man called The Butcher and himself called Kid Butcher, Pompey's exposure to death had been lifelong, and not conditioned by impulses of compassion or mercy. A man lived, a man died. A woman lived, a woman died. Nothing was certain. When his mother died he had cried a little, but until the death of Aemilia Scaura only the death of his father had profoundly affected him. Yet his wife's death smote Pompey almost to joining her upon her funeral pyre; Varro and Sulla were never sure afterward whether Pompey's struggle to leap into the flames was genuine or only partly genuine, so frantic and grief stricken was he. In truth, Pompey himself didn't know. All he did know was that Fortune had favored him with the priceless gift of Scaurus's daughter, then snatched the gift away before it could be enjoyed. Still weeping desolately, the young man quit Rome through the Colline Gate, a second time because of sudden death. First his father, now Aemilia Scaura. To a Pompeius from northern Picenum, there was only one alternative. To go home.