“T. Quinctius Crispinus consul populum jure rogavit populusque jure scivit in foro pro rostris aedis divi Julii pr(idie) [k.] Julias. Tribus Sergia principium fuit, pro tribu Sex.... L. f. Virro [primus scivit].”
Here we find an assembly of the Populus, presided over by a magistrate of the people, meeting in the Forum and voting by tribes. It can, therefore, be none other than a comitia tributa populi.
Although the formal difference between this assembly and the concilium plebis tributim was great—the one being summoned by magistrates of the people, the other by plebeian magistrates; the one electing to popular, the other to plebeian offices; the one passing leges, the other plebiscita—the material difference between the two bodies was small. This consisted in the exclusion of Patricians from plebeian gatherings. When the consul or praetor summoned the tribes, the members of the few patrician families could attend; when the tribune summoned the tribes, these members were bound to keep away.
APPENDIX II
A LIMITATION OF THE TRIBUNATE IN THE REIGN OF NERO
Tacitus in the Annals (xiii. 28, 2), in describing certain limitations on the powers of tribunes and aediles which were introduced in the year 56 A.D., mentions one respecting the tribunate, the nature of which has never yet been explained. He expresses it in the words “prohibiti tribuni jus praetorum et consulum praeripere, aut vocare ex Italia cum quibus lege agi posset”—“the tribunes were forbidden to usurp the authority of praetors and consuls, or to summon out of Italy persons liable to legal proceedings.” It seems generally to be agreed that the aut here is conjunctive, not disjunctive, i.e. that there is the closest connexion between “jus praetorum et consulum praeripere” and “vocare ex Italia,” and it seems that this must be the case; for Tacitus, vague as his references are in this chapter, could never have referred to anything so indeterminate as a “usurpation of the authority of praetors and consuls,” without some specification of the sphere or extent of this usurpation. I shall, therefore, assume that the second clause is explanatory of the first, and that the “summons from Italy” in some way defines the “usurpation”—although, as will be seen, this assumption is by no means necessary to my main argument, which will centre round the expression “vocare ex Italia.”
The remarks of commentators on this passage have been for the most part confined to expressions of bewilderment at the constitutional anomalies it displays. They make the inevitable comment that the tribune had properly no right of vocatio, although he sometimes exercised it (Varro ap. Gell. xiii. 12), and that, if even he possessed this right, it ought not to have been exercised outside the city walls. The only positive fact to be elicited from such statements is that the vocatio here referred to is some kind of personal summons; who is summoned or for what purpose are questions which they seem to regard as incapable of an answer. The opinion of an eminent writer on Roman Law, who attempts to push his analysis deeper than this, exhibits only the desperate nature of the means which have to be applied to elicit a meaning from the passage. Karlowa (Röm. Rechtsgesch. i. p. 530) suggests that the tribunes had allowed accused persons to escape summonses in criminal trials which were to take place before the Senate—the initiation of such trials belonging properly only to the consuls and praetors. He does not seem to feel the obstacles that beset the path to this conclusion. He has to take lege agere in the unusual sense of the legal fulfilment of a penal law; he does not show why Tacitus should have written “vocare ex Italia” in place of the more natural “vocare a senatu”; he fails to remember that the tribunician intercession in a criminal trial before the Senate was, even in the reign of Tiberius, becoming a power of pardon vested in the Princeps, and that its use by an ordinary tribune might bring death to the rash interceder (Tac. Ann. vi. 47; cf. xvi 26).
To discover the true sense of the passage we must seek for some sphere in which the tribunician veto continued unimpaired during the Principate; but, before doing this, we must ask whether the words used by Tacitus offer any suggestions of such a sphere. It is possible to translate the words “vocare ex Italia” as meaning “to summon from any part of Italy,” “to summon, i.e., from Rome and Italy”; but I venture to think that ex Italia excludes the idea of Rome, and that the meaning of the words is “to summon from a municipal town of Italy to Rome.” On what grounds such a summons might be made is shown by the words “cum quibus lege agi posset.” The sphere of the summons is civil jurisdiction in the municipia as divided between the Roman and the local authorities by statute on the settlement which gradually followed the close of the social war—a settlement known to us chiefly through the lex Rubria. The whole sentence, if literally though somewhat clumsily translated, would state that “the tribunes were prohibited from summoning litigants from an Italian town in cases where a civil action at law would have been possible in that town.”
On this hypothesis, the sphere of the tribune’s power referred to is the very familiar one of the veto on appeal in civil jurisdiction. How frequent the appellatio to the tribunes in matters of civil jurisdiction was during the later Republic is shown by the fact that, out of the four private orations of Cicero, two—those for Quinctius and for Tullius—record the use of this appeal (Cic. pro Quinct. 7, 29; pro Tullio 16, 38, 39); and that this appellate cognisance continued during the Principate is shown by the obvious interpretation of the well-known lines of Juvenal (vii. 228)—
Rara tamen merces quae cognitione tribuni