The following cases are historically more certain. Lucius Postumius, prosecuted by the tribunes of the plebs in 293 for the misuse of his consulship of the preceding year, escaped trial by becoming the legatus of the consul Carvilius. The charge was that in his campaign he had not limited himself to the province assigned him by the senate.[1747] Evidently the intention of the prosecutor was not serious.[1748] The consul Q. Fabius Gurges of the year 292, defeated in battle, was recalled, and his conduct was impugned before the people. The past services and the promises of his father saved him, and he continued his consulship with greater success. The accusation probably did not take the form of a trial, but was presented in a resolution to remove him from office[1749] or at least from the command of the army. L. Postumius, third time consul in 291, employed his army to work on his own estate; and on the expiration of his office he was brought to trial therefor by the tribunes and condemned.[1750]
In the period under discussion, 449-287, a single effort to hold the plebeian tribunes responsible for their official conduct is reported. In 293 two retired tribunes were condemned to a fine of 10,000 asses each on a charge of having favored the patres by interceding against the proposals of colleagues.[1751] This instance, if historical, is the only one of the kind before the revolution. The tribunes doubtless felt that the prosecution of their predecessors rendered their own future unsafe.
Several attempts were also made by legislation to reach results equivalent to judicial sentences. In spite of the prohibition of privilegia by a law of the Twelve Tables, Sp. Maelius, a tribune of the plebs in 436, tried to carry a resolution for the confiscation of the property of Servilius Ahala; but the people rejected it.[1752] Another privilegium was the resolution of the plebs of 368 which threatened M. Furius Camillus with a fine of 500,000 asses, should he use his dictatorship to obstruct the Licinian-Sextian bills then under discussion.[1753] It was certainly not supported by a senatus consultum, and probably the proposers had no serious intention of carrying it into effect.
In reviewing the finable actions alleged to have been brought by the plebeian tribunes during the two centuries which intervened between the institution of their office and the Hortensian legislation, as in the case of the capital actions,[1754] we are struck by the relatively small number belonging to the latter part of the period; in fact to the time following 362 two cases only are assigned, one of which is insignificant. The conclusion we must draw from this fact is similar to that expressed with relation to the capital cases—that the finable actions attributed to the earlier period are in all probability largely unhistorical, and that before the enactment of the Hortensian law the jurisdiction of the tribunes in finable cases was limited and rare.
b. AEDILICIAN
For some time after their institution the tribunes of the plebs, having no viatores or at least none that were recognized as public officials,[1755] depended upon the two plebeian aediles as bailiffs for making arrests and for executing sentences.[1756] The latter functionaries seem to have stood in some such relation to the tribunes as the quaestors toward the consuls. It was accordingly as deputies of the tribunes that they acquired jurisdiction.[1757] The earliest mentioned case, 454, is the trial and condemnation of a retired consul in a finable action for official misconduct.[1758] It should be placed in the same mythical category with the numerous tribunician prosecutions of the period.[1759] After the institution of curule aediles, 367, the aediles of the plebs continued indeed to serve occasionally as bailiffs of the tribunes,[1760] but acquired in addition, along with those of curule rank, an independent jurisdiction. In 357 C. Licinius Stolo was prosecuted by M. Popillius Laenas on the charge of having circumvented his own law by emancipating his son in order that he and his son might each possess five hundred iugera of the public land. He was fined 10,000 asses.[1761] From the cases to be mentioned below the inference may be drawn that the accuser was an aedile. In 298 several persons were prosecuted by the aediles, whether curule or plebeian is not stated, for violation of the same law, and hardly one was acquitted.[1762] In 295 the plebeian aediles made considerable money by fining those who had trespassed against the article of the Licinian-Sextian statute which related to pasturage;[1763] and two years afterward violators of the same provision were again fined, on this occasion by the curule aediles.[1764] Actions against usurers were brought by aediles in 344,[1765] 304,[1766] and 295.[1767]
Shortly before 328, M. Flavius was prosecuted before the people by the aediles for the crimen stupratae matris familiae, and acquitted.[1768] In 295 Q. Fabius Gurges, a curule aedile,[1769] accused several matrons before the people, also of stuprum, and fined them.
In the period between the Licinian-Sextian and the Hortensian legislation, accordingly, the jurisdiction of the aediles, so far as is known, was limited to usury, stuprum, and the violation of laws regarding the occupation and pasturage of the public land. They had nothing to do with perduellio or related offences, or with the accountability of magistrates, or with any capital actions whatsoever. All their trials were finable, and in case the fine exceeded thirty cattle and two sheep, or the equivalent, 3020 heavy asses,[1770] an appeal could be made to the tribes. The plebeian aediles equally with the tribunes[1771] lacked the power to summon patricians, whereas the curule aediles as patrician magistrates[1772] possessed the right; but no distinction in the composition of these tribal assemblies, corresponding to the form of presidency, is suggested by the sources.[1773]
III. Legislative
The legislative function of the tribal assembly under tribunician presidency after the decemvirate (451-450)[1774] is represented as bringing forthwith into being the Icilian and Duillian plebiscites of 449. That of Icilius granted amnesty to those who had seceded from the decemvirs.[1775] The first plebiscite of Duillius provided for the election of consuls cum provocatione.[1776] Both acts are alleged to have been passed, however, before the resolutions of the plebs had acquired the force of law. The second Duillian plebiscite, which followed the enactment of the Valerian-Horatian statute, and which was therefore valid for all the citizens, threatened with scourging and death any one who left the plebs without tribunes or who caused the election of a magistrate without appeal.[1777] Its first provision was merely the expression of a principle on which the plebeians, had from the beginning insisted as essential to the continuance of the office from year to year;[1778] the second clause precluded the recurrence of an elective magistracy like the decemvirate just past.[1779] According to Diodorus[1780] an agreement was made in this year between the patricians and plebeians by which one consul at least should be a plebeian. Although Diodorus generally drew from sources more ancient than those of Livy, he is wrong in assigning this provision to so early a date.[1781]