The Roman assemblies from their origin to the end of the Republic

by George Willis Botsford

In the belief of the Romans the tribunes of the plebs, originally two, were instituted in 494 as a concession to the seceding commons to win them back to the state.[1583] The historical truth of the first secession need not be discussed here; but there is no good ground for rejecting the view of the ancients either that the tribunate of the plebs owed its existence to a revolution or that it began at as early a date. According to our sources the plebeian tribunes, hence we may infer also the aediles, were for a time elected, and other business affecting the interests of the common people was transacted, in comitia curiata composed potentially of all the citizens.[1584] The change in the form of organization in 471, from curiate to tribal, will be considered below. The president of the comitia which elected the first plebeian tribunes was necessarily a patrician magistrate,[1585] probably the pontifex maximus;[1586] thereafter, with the exception of the comitia for the election of the first plebeian officials after the overthrow of the decemvirs, tribunes of the plebs presided not only for elections but also for judicial business and for the enactment of plebiscites (plebi scita).

The object of the office of tribune was the protection of individual citizens, plebeian and patrician alike,[1587] from oppression; and the means was the auxilium (official aid),[1588] which could be rendered in no other way than by personal contact; hence the law prohibiting a tribune from being absent over night from the city[1589] and requiring him to leave the door of his house open during the night.[1590] In the further interest of the citizens the tribunes had the unrestricted right to call the plebs to a contio and address them at any time and on any subject, to form them when so assembled into voting groups, at first curiae and after 471, tribes, and to take their votes on proposals affecting plebeian interests, plebiscites being from the beginning binding on the plebeian body in so far as they harmonized with the laws of the state.[1591]

These were the two original functions from which the vast powers of the later tribunes gradually developed. As strictly plebeian officials they had no authority to summon patricians, to exclude them from the place of assembly,[1592] or to condemn them judicially.[1593] It follows that their alleged prosecutions of past consuls for maladministration[1594] are fictions[1595]—an anticipation of their jurisdiction at a later age. Directly they possessed no power of judgment or of coercion;[1596] but for the enforcement of the auxilium and of the ius agendi cum plebe their persons were made sacred—sacro sancti—by an oath which the plebs swore at the time they instituted the office,[1597] namely that any one who killed a tribune or aedile of the plebs or did him bodily harm, or who commanded another to inflict harm or death upon him might as a person devoted to Jupiter be killed with impunity, and his property be confiscated.[1598] The avenger was necessarily either a private plebeian or an official of the plebs.[1599] The formal act which rendered the tribunes sacred was termed a lex sacrata. The essence of such a law is (1) that it was sworn to by the community—in this instance by the community of plebs, (2) that the offender against it became a homo sacer and could be put to death with impunity.[1600] This idea of sanctity the plebeians may have derived partly from the Greek asylum;[1601] but it seems also to have been influenced by the condition of ambassadors, hence the later, ill-founded conception of the plebs as a state, and of the plebeian officials and other institutions as based on a treaty ratified with fetial ceremonies between the patrician government and the seceding plebs.[1602] Though termed lex sacrata because it was passed and sworn to in the community, as it were, of the plebs, like any plebiscite of this period the resolution had no legal validity for the state or for the patricians. Under compulsion, however, the government yielded to the demands of the plebeians without formally acknowledging the sanctity of their officials; so that the patricians, by asserting that Roman law did not recognize an inviolability founded purely on religion,[1603] could afterward deny that the tribunes were really sacrosanct. Till the enactment of the Valerian-Horatian laws of 449,[1604] accordingly, the inviolability of the tribunes existed in so far only as the plebeians were in a position to maintain it by holding over their opponents and over the government the threat of violence and revolution. That under the circumstances domestic peace was on the whole preserved should be credited to the orderly character of the great mass of citizens.

Applied to the holding of contiones and comitia, this inviolability protected the presiding tribune from interruption, contradiction, and every disturbance. The principle was afterward extended to verbal abuse anywhere publicly indulged in.[1605] Even if a man showed disrespect by not stepping out of the way of a tribune who was passing along the street, he was liable to the death penalty.[1606] Under normal conditions, however, the rigorous execution of this lex sacrata could not be thought of; in place of outlawing the offender against his person the tribune was ordinarily willing to impose a fine upon him, from which an appeal might be made to the plebeian assembly; or in cases of violence to his person, he might resort to capital prosecution, which was likewise appealable. These principles were formulated in an alleged Icilian plebiscite of the year 492.[1607] From what has just been said it is clear that the tribune’s coercive[1608] and judicial functions resulted, not from usurpation as has often been asserted,[1609] but from a mitigation of the harsh lex sacrata. In a word, the ultimate basis of tribunician authority was the revolutionary power of the plebs, upon which rested the sanctity of the tribunes, and thereon their jurisdiction. Of the judicial activity attributed by the annalists to the plebeian officials in the period before the decemvirs we do not know how much is mythical; but it is safe to say that all the capital cases, probably all the cases without qualification, which they actually settled as judges were submitted to by the patrician government for the sake of peace, without being accepted as legal.

To the third year of the tribunate, 491, is assigned the first mentioned exercise of tribunician jurisdiction. C. Marcius Coriolanus, the accused, had advocated in the senate the abolition of the tribunician office,[1610] and had done personal violence to the aediles, in this way rendering himself liable to the penalty of the lex sacrata on which rested the sanctity of the plebeian officials. Instead of declaring him a homo sacer, a tribune brought him to trial before the tribes, which condemned him by a narrow majority.[1611] The story is now regarded by all scholars as a myth. The vote by tribes at this early time is either exceptional or more likely an anticipation of later usage.[1612]

In accordance with the Icilian plebiscite a capital charge is said to have been brought by a tribune of the plebs against Kaeso Quinctius on the ground that he had repeatedly driven the tribunes from the Forum and had dispersed their assembly.[1613] After providing sureties the accused went into exile,[1614] and the sentence of banishment was passed—in Cicero’s opinion by the comitia centuriata, in Livy’s by the tribal comitia of plebs, 461.[1615] Another case prior to the decemvirate is recorded for the year 455. Representatives of three illustrious patrician families were charged with having disturbed an assembly under tribunician presidency. Their estates were forfeited to Ceres.[1616] Naturally under this arrangement between the plebs and the government there was room for much misunderstanding: the leaders of the plebs stretched their claims to the uttermost; and the patricians, after granting the radical concession, endeavored to recall as much of it as possible. They plausibly urged that while the sacrosanctitas, so far as it existed,[1617] might protect the person of the tribune, it gave him no authority over a patrician;[1618] and their position as the sole holders of political power and the sole repositories of law and usage enabled them before the decemviral legislation by stubborn, skilful perseverance in the details of political warfare almost to throw the tribunician sanctity into oblivion.[1619] Livy tells us that in the assembly appointed for the trial of the past consuls L. Furius and C. Manlius, the accusing tribune failed to appear, and was found murdered in his home; and the historian gives us to understand that the crime was the result of a private conference among the patricians.[1620] Dio Cassius[1621] states that they secretly slew a number of the boldest spirits among the plebeians. Though these stories are mythical, they reflect at least the opinion of the historians that in this early period the sanctity of the tribune counted for little. If it failed to protect his person, it could have given him no great degree of recognized judicial competence. Under these circumstances we should not expect to find the tribunes often bringing the power of their questioned sanctity into actual use in the early years of their existence; but that before the decemvirate they exercised jurisdiction to some extent even in capital cases, which were appealed to the assembly under their presidency, is proved by a law of the Twelve Tables, which, to remedy what the legislators must have considered an abuse, provided that accusations affecting the caput of a citizen should be brought only before the comitiatus maximus—evidently the comitia centuriata.[1622]

If the tribunes presumed to condemn men to death, they certainly would not hesitate to fine them for lighter offences. For checking the power of the magistrates to levy unlimited fines the consuls of 454, A. Aternius and Sp. Tarpeius, passed through the comitia centuriata a law which set the maximum fine to be levied by a magistrate on an individual in any one day at thirty cattle and two sheep, the minimum being a single sheep. In case he exceeded the former amount, an appeal could be made to the assembly.[1623] In the opinion of Dionysius[1624] this law was interpreted to apply to all magistrates, including those of the plebs, and was made accordingly the basis of the tribunician jurisdiction in finable offences. These consequences seem to have been drawn from the statute, although the proposers may not have so intended it.[1625]

Sufficient evidence has now been offered that before the decemviral legislation the plebeian tribunes exercised, on the basis of their sanctity, a vague jurisdiction in both finable and capital cases, occasionally submitted to by the patrician government though probably not recognized by it as just or constitutional. For the same period their method of agitation by the obstruction of the levy,[1626] by haranguing the people in contiones,[1627] and occasionally by sedition, proves clearly the lack of legislative power through the assembly over which they presided, as well as their lack of veto on the acts of the government. With reference to legislation the course of the discussion in the present and following chapters will make it evident that only by a provision of the Hortensian statute did plebiscites become unconditionally binding on the whole people. Although from the beginning a tribune, as a member of a collegial office, could intercede against the act of a colleague, he had in this period no legal right of the kind against the government; for had he now possessed it, as he did at a later age, he would have felt no need of obstructing the levy—a relatively slow, clumsy method of political warfare. It is to be noticed further that the power of veto of the tribunes, after it had been acquired, rested upon their jurisdiction. If a magistrate persisted in ignoring their prohibition, his act remained valid but he rendered himself liable to tribunician prosecution.[1628] Necessarily, then, as long as the tribunes lacked judicial competence (till the Valerian-Horatian legislation, 449) they lacked the veto against governmental action; as long as their judicial competence depended upon the will of the government (probably till the Hortensian legislation, 287), their veto on the government must have been correspondingly limited. Finally it was not till tribunician obstruction of the levy, sedition, and secession disappear (that is, with the enactment of the Hortensian statute) that we have a right to assume the existence of an unrestricted tribunician veto.[1629] The method of the tribunes in the pre-decemviral period was, by the means above indicated, to force a proposed measure upon the patrician magistrates, and to compel them to bring it before the centuriate assembly in regular form.[1630]

In view of the circumstances that passed bills alone were recorded and hence could be known to posterity, we may reject as unauthentic all the alleged proposals of agrarian laws of this period,[1631] which however may not have been free from agitation of the kind.