This procedure certainly savoured of violence rather than of justice, especially when it was adopted against a non-plebeian, as must in fact have been ordinarily the case. It was not to be reconciled either with the letter or the spirit of the constitution that a patrician should be called to account by authorities who presided not over the body of burgesses, but over an association formed within it, and that he should be compelled to appeal, not to the burgesses, but to this very association. This was originally without question Lynch justice; but the self-help was doubtless carried into effect from early times in form of law, and was after the legal recognition of the tribunate of the plebs regarded as lawfully admissible.
In point of intention this new jurisdiction of the tribunes and the aediles, and the appellate decision of the plebeian assembly therein originating, were beyond doubt just as much bound to the laws as the jurisdiction of the consuls and quaestors and the judgment of the centuries on appeal; the legal conceptions of crime against the community[5] and of offences against order[6] were transferred from the community and its magistrates to the plebs and its champions. But these conceptions were themselves so little fixed, and their statutory definition was so difficult and indeed impossible, that the administration of justice under these categories from its very nature bore almost inevitably the stamp of arbitrariness. And now when the very idea of right had become obscured amidst the struggles of the orders, and when the legal party - leaders on both sides were furnished with a co-ordinate jurisdiction, this jurisdiction must have more and more approximated to a mere arbitrary police. It affected in particular the magistrate. Hitherto the latter according to Roman state law, so long as he was a magistrate, was amenable to no jurisdiction at all, and, although after demitting his office he might have been legally made responsible for each of his acts, the exercise of this right lay withal in the hands of the members of his own order and ultimately of the collective community, to which these likewise belonged. Now in the tribunician jurisdiction there emerged a new power, which on the one hand might interfere against the supreme magistrate even during his tenure of office, and on the other hand was wielded against the noble burgesses exclusively by the non-noble, and which was the more oppressive that neither the crime nor its punishment was formally defined by law. In reality through the co-ordinate jurisdiction of the plebs and the community the estates, limbs, and lives of the burgesses were abandoned to the arbitrary pleasure of the party assemblies.
In civil jurisdiction the plebeian institutions interfered only so far, that in the processes affecting freedom, which were so important for the plebs, the nomination of jurymen was withdrawn from the consuls, and the decisions in such cases were pronounced by the "ten-men-judges" destined specially for that purpose (iudices, decemviri, afterwards decemviri litibus iudicandis).
Legislation
With this co-ordinate jurisdiction there was further associated a co-ordinate initiative in legislation. The right of assembling the members and of procuring decrees on their part already pertained to the tribunes, in so far as no association at all can be conceived without such a right. But it was conferred upon them, in a marked way, by legally securing that the autonomous right of the plebs to assemble and pass resolutions should not be interfered with on the part of the magistrates of the community or, in fact, of the community itself. At all events it was the necessary preliminary to the legal recognition of the plebs generally, that the tribunes could not be hindered from having their successors elected by the assembly of the plebs and from procuring the confirmation of their criminal sentences by the same body; and this right accordingly was further specially guaranteed to them by the Icilian law (262), which threatened with severe punishment any one who should interrupt the tribune while speaking, or should bid the assembly disperse. It is evident that under such circumstances the tribune could not well be prevented from taking a vote on other proposals than the choice of his successor and the confirmation of his sentences. Such "resolves of the multitude" (plebi scita) were not indeed strictly valid decrees of the people; on the contrary, they were at first little more than are the resolutions of our modern public meetings; but, as the distinction between the comitia of the people and the councils of the multitude was of a formal nature rather than aught else, the validity of these resolves as autonomous determinations of the community was at once claimed at least on the part of the plebeians, and the Icilian law for instance was immediately carried in this way. Thus was the tribune of the people appointed as a shield and protection for the individual, and as leader and manager for all, provided with unlimited judicial power in criminal proceedings, that in this way he might give emphasis to his command, and lastly even pronounced to be in his person inviolable (sacrosanctus), inasmuch as whoever laid hands upon him or his servant was not merely regarded as incurring the vengeance of the gods, but was also among men accounted as if, after legally proven crime, deserving of death.
Relation of the Tribune to the Consul
The tribunes of the multitude (tribuni plebis) arose out of the military tribunes and derived from them their name; but constitutionally they had no further relation to them. On the contrary, in respect of powers the tribunes of the plebs stood on a level with the consuls. The appeal from the consul to the tribune, and the tribune's right of intercession in opposition to the consul, were, as has been already said, precisely of the same nature with the appeal from consul to consul and the intercession of the one consul in opposition to the other; and both cases were simply applications of the general principle of law that, where two equal authorities differ, the veto prevails over the command. Moreover the original number (which indeed was soon augmented), and the annual duration of the magistracy, which in the case of the tribunes changed its occupants on the 10th of December, were common to the tribunes and the consuls. They shared also the peculiar collegiate arrangement, which placed the full powers of the office in the hands of each individual consul and of each individual tribune, and, when collisions occurred within the college, did not count the votes, but gave the Nay precedence over the Yea; for which reason, when a tribune forbade, the veto of the individual was sufficient notwithstanding the opposition of his colleagues, while on the other hand, when he brought an accusation, he could be thwarted by any one of those colleagues. Both consuls and tribunes had full and co-ordinate criminal jurisdiction, although the former exercised it indirectly, and the latter directly; as the two quaestors were attached to the former, the two aediles were associated with the latter[7]. The consuls were necessarily patricians, the tribunes necessarily plebeians. The former had the ampler power, the latter the more unlimited, for the consul submitted to the prohibition and the judgment of the tribunes, but the tribune did not submit himself to the consul. Thus the tribunician power was a copy of the consular; but it was none the less a contrast to it. The power of the consuls was essentially positive, that of the tribunes essentially negative. The consuls alone were magistrates of the Roman people, not the tribunes; for the former were elected by the whole burgesses, the latter only by the plebeian association. In token of this the consul appeared in public with the apparel and retinue pertaining to state-officials; the tribunes sat on a stool instead of the "chariot seat," and lacked the official attendants, the purple border, and generally all the insignia of magistracy: even in the senate the tribune had neither presidency nor so much as a seat. Thus in this remarkable institution absolute prohibition was in the most stern and abrupt fashion opposed to absolute command; the quarrel was settled by legally recognizing and regulating the discord between rich and poor.
Political Value of the Tribunate
But what was gained by a measure which broke up the unity of the state; which subjected the magistrates to a controlling authority unsteady in its action and dependent on all the passions of the moment; which in the hour of peril might have brought the administration to a dead-lock at the bidding of any one of the opposition chiefs elevated to the rival throne; and which, by investing all the magis
trates with co-ordinate jurisdiction in the administration of criminal law, as it were formally transferred that administration from the domain of law to that of politics and corrupted it for all time coming? It is true indeed that the tribunate, if it did not directly contribute to the political equalization of the orders, served as a powerful weapon in the hands of the plebeians when these soon afterwards desired admission to the offices of state. But this was not the real design of the tribunate. It was a concession wrung not from the politically privileged order, but from the rich landlords and capitalists; it was designed to ensure to the commons equitable administration of law, and to promote a more judicious administration of finance. This design it did not, and could not, fulfil. The tribune might put a stop to particular iniquities, to individual instances of crying hardship; but the fault lay not in the unfair working of a righteous law, but in a law which was itself unrighteous, and how could the tribune regularly obstruct the ordinary course of justice? Could he have done so, it would have served little to remedy the evil, unless the sources of impoverishment were stopped - the perverse taxation, the wretched system of credit, and the pernicious occupation of the domain-lands. But such measures were not attempted, evidently because the wealthy plebeians themselves had no less interest in these abuses than the patricians. So this singular magistracy was instituted, which presented to the commons an obvious and available aid, and yet could not possibly carry out the necessary economic reform. It was no proof of political wisdom, but a wretched compromise between the wealthy aristocracy and the leaderless multitude. It has been affirmed that the tribunate of the people preserved Rome from tyranny. Were it true, it would be of little moment: a change in the form of the state is not in itself an evil for a people; on the contrary, it was a misfortune for the Romans that monarchy was introduced too late, after the physical and mental energies of the nation were exhausted. But the assertion is not even correct; as is shown by the circumstance that the Italian states remained as regularly free from tyrants as the Hellenic states regularly witnessed their emergence. The reason lies simply in the fact that tyranny is everywhere the result of universal suffrage, and that the Italians excluded the burgesses who had no land from their public assemblies longer than the Greeks did: when Rome departed from this course, monarchy did not fail to emerge, and was in fact associated with this very tribunician orifice. That the tribunate had its use, in pointing out legitimate paths of opposition and averting many a wrong, no one will fail to acknowledge; but it is equally evident that, where it did prove useful, it was employed for very different objects from those for which it had been established. The bold experiment of allowing the leaders of the opposition a constitutional veto, and of investing them with power to assert it regardless of the consequences, proved to be an expedient by which the state was politically unhinged; and social evils were prolonged by the application of useless palliatives.
Further Dissensions
Now that civil war was organized, it pursued its course. The parties stood face to face as if drawn up for battle, each under its leaders. Restriction of the consular and extension of the tribunician power were the objects contended for on the one side; the annihilation of the tribunate was sought on the other. Legal impunity secured for insubordination, refusal to enter the ranks for the defence of the land, impeachments involving fines and penalties directed specially against magistrates who had violated the rights of the commons or who had simply provoked their displeasure, were the weapons of the plebeians; and to these the patricians opposed violence, concert with the public foes, and occasionally also the dagger of the assassin. Hand-to-hand conflicts took place in the streets, and on both sides the sacredness of the magistrate's person was violated. Many families of burgesses are said to have migrated, and to have sought more peaceful abodes in neighbouring communities; and we may well believe it. The strong patriotism of the people is obvious from the fact, not that they adopted this constitution, but that they endured it, and that the community, notwithstanding the most vehement convulsions, still held together.
Coriolanus
The best-known incident in these conflicts of the orders is the history of Gnaeus Marcius, a brave aristocrat, who derived his surname from the storming of Corioli. Indignant at the refusal of the centuries to entrust to him the consulate in the year 263, he is reported to have proposed, according to one version, the suspension of the sales of corn from the state-stores, till the hungry people should give up the tribunate; according to another version, the direct abolition of the tribunate itself. Impeached by the tribunes so that his life was in peril, it is said that he left the city, but only to return at the head of a Volscian army; that when he was on the point of conquering the city of his fathers for the public foe, the earnest appeal of his mother touched his conscience; and that thus he expiated his first treason by a second, and both by death. How much of this is true cannot be determined; but the story, over which the naive misrepresentations of the Roman annalists have shed a patriotic glory, affords a glimpse of the deep moral and political disgrace of these conflicts between the orders. Of a similar stamp was the surprise of the Capitol by a band of political refugees, led by a Sabine chief, Appius Herdonius, in the year 294; they summoned the slaves to arms, and it was only after a violent conflict, and by the aid of the Tusculans who hastened to render help, that the Roman burgess-force overcame the Catilinarian band. The same character of fanatical exasperation marks other events of this epoch, the historical significance of which can no longer be apprehended in the lying family narratives; such as the predominance of the Fabian clan which furnished one of the two consuls from 269 to 275, and the reaction against it, the emigration of the Fabii from Rome, and their annihilation by the Etruscans on the Cremera (277). Still more odious was the murder of the tribune of the people, Gnaeus Genucius, who had ventured to call two consulars to account, and who on the morning of the day fixed for the impeachment was found dead in bed (281). The immediate effect of this misdeed was the Publilian law (283), one of the most momentous in its consequences with which Roman history has to deal. Two of the most important arrangements - the introduction of the plebeian assembly of tribes, and the placing of the plebiscitum on a level, although conditionally, with the formal law sanctioned by the whole community - are to be referred, the former certainly, the latter probably, to the proposal of Volero Publilius the tribune of the people in 283. The plebs had hitherto adopted its resolutions by curies; accordingly in these its separate assemblies, on the one hand, the voting had been by mere number without distinction of wealth or of freehold property, and, on the other hand, in consequence of that standing side by side on the part of the clansmen, which was implied in the very nature of the curial assembly, the clients of the great patrician families had voted with one another in the assembly of the plebeians. These two circumstances had given to the nobility various opportunities of exercising influence on that assembly, and especially of managing the election of tribunes according to their views; and both were henceforth done away by means of the new method of voting according to tribes. Of these, four had been formed under the Servian constitution for the purposes of the levy, embracing town and country alike[8]; subsequently-perhaps in the year 259 - the Roman territory had been divided into twenty districts, of which the first four embraced the city and its immediate environs, while the other sixteen were formed out of the rural territory on the basis of the clan-cantons of the earliest Roman domain[9]. To these was added - probably only in consequence of the Publilian law, and with a view to bring about the inequality, which was desirable for voting purposes, in the total number of the divisions - as a twenty-first tribe the Crustuminian, which derived its name from the place where the plebs had constituted itself as such and had established the tribunate[10]; and thenceforth the special assemblies of the plebs took place, no longer by curies, but by tribes. In these divisions, which were based throughout on the possession of land, the voters were exclusively freeholders: but they voted without distinction as to t
he size of their possession, and just as they dwelt together in villages and hamlets. Consequently, this assembly of the tribes, which otherwise was externally modelled on that of the curies, was in reality an assembly of the independent middle class, from which, on the one hand, the great majority of freedmen and clients were excluded as not being freeholders, and in which, on the other hand, the larger landholders had no such preponderance as in the centuries. This "meeting of the multitude" (concilium plebis) was even less a general assembly of the burgesses than the plebeian assembly by curies had been, for it not only, like the latter, excluded all the patricians, but also the plebeians who had no land; but the multitude was powerful enough to carry the point that its decree should have equal legal validity with that adopted by the centuries, in the event of its having been previously approved by the whole senate. That this last regulation had the force of established law before the issuing of the Twelve Tables, is certain; whether it was directly introduced on occasion of the Publilian plebiscitum, or whether it had already been called into existence by some other - now forgotten - statute, and was only applied to the Publilian plebiscitum cannot be any longer ascertained. In like manner it remains uncertain whether the number of tribunes was raised by this law from two to four, or whether that increase had taken place previously.
The History of Rome. Book II Page 5