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The two new magistrates, who were appointed to the headship of the state, were, like the king, armed with the imperium and its united powers of military leadership and jurisdiction. Hence they bore the old titles of praetores and judices,[316] while those designations which denoted a single supremacy in the state, such as dictator or magister populi, were necessarily discarded. The new magistrates were to hold office for a year and then to transmit their power to two successors. But their right of nomination was not final. They were, indeed, free to name as their successors whom they pleased, but this nomination had to be ratified immediately by the people assembled in their centuries; and perhaps they were already expected to submit to this comitia the names of all candidates who offered themselves for this post, although they could certainly decline to receive such names,[317] and nomination, or, as it was sometimes called, creatio, was an essential part of the early consular elections. A new practice, that of direct election, was thus introduced into the Roman constitution, but it was merely an advance on the previous practice of ratifying a nomination.[318] A far newer idea—one which distinguished the consulship from the monarchy, and continued to differentiate it from the dictatorship subsequently created—was that of colleagueship,[319] of two officials exercising exactly the same sphere of competence, with the inevitable effect of collision if agreement could not be secured. Perpetual collision was averted by the simple rule that the dissent of one magistrate rendered null and void the action of his colleague. But if such dissent was not expressed (or not capable of expression through the absence of the colleague) the command of a single magistrate had binding force on the community. His regal competence was not diminished, but only potentially checked, by the presence of a colleague. Colleagueship, considered as the safeguard against abuse of the imperium, grew to be so firmly impressed on popular imagination as the characteristic feature of the new office, that the earlier titles derived from the monarchy gave place to that of consules.[320]

But this limitation was not sufficient. The unrestricted military jurisdiction of the magistrate was felt not to be in harmony with the new régime. A law was passed by P. Valerius, the first of the consuls, allowing an appeal to the people in their centuries against every sentence of a magistrate which was pronounced against the life of a Roman citizen. This lex Valeria (509 B.C.) completed the popular jurisdiction which had been growing up during the monarchy,[321] and from this time no power but the people has the right to pronounce the final death sentence within the walls;[322] outside this sphere the military jurisdiction of the consul can be asserted without appeal—hence the distinction between the imperium at home (domi) and abroad (militiae); the limit between the spheres being originally the pomerium, later the first milestone from the city.[323] Without this limit the axes are borne within the fasces, within it they are laid aside. Tradition adds that it was this final recognition of popular sovereignty which led to the custom of the consul lowering the fasces before the people when he addressed them.[324] It does not appear that this great change was forced on the higher organs of the state by any popular agitation. It is no part of a distinctively plebeian movement. Senate and People, Patricians and Plebeians must have equally accepted as inevitable the doom of a power which had been dwindling to a shadow during the monarchy.

The change from monarchy also witnessed the first attempt to weaken the unity of the executive power. The consuls were given two general assistants, the annually appointed quaestores. We have noticed the tradition which assigns these officials to the regal period,[325] but it is not wholly inconsistent with that which represents them as a part of the new constitution of 509. From being temporary delegates they now became permanent assistants of the consuls. Their sphere was as unlimited as that of the consuls themselves; they were meant simply to obey his behests. But two departments in which they represented the supreme magistracy must have stood out prominently from the first. These were criminal jurisdiction and finance.[326] The “city quaestors” (quaestores urbani), as they were subsequently called to distinguish them from their provincial colleagues, were known as quaestores parricidii[327] and quaestores aerarii. In their first capacity they were delegates whom the magistrate employed in criminal jurisdiction, probably occupying with respect to procedure much the same place as the duoviri in the trial of Horatius.[328] The designation parricidii may, however, show that they were employed in such criminal cases as did not directly affect the welfare of the state,[329] and by their side the duoviri perduellionis reappear at intervals during the early Republic. Their financial functions are generally taken to imply the existence of a state treasury (aerarium). Tradition credits the first consul Valerius Publicola with its institution, and makes the quaestors the guardians of its wealth and probably of its archives.[330] The public chest of Rome must have been a primitive matter enough at a time when coined money was not in general use; but it is not improbable that finance did at this time become a definite department. It could no longer be a purely domestic matter; the lands of the kings had become crown lands of the state; the series of wars into which Rome was plunged must have rendered a constant collection of the war-tax necessary; none would more naturally have been entrusted with the control and disbursement of revenue than the perpetual delegates of the consuls; and the formalism of Roman character would lead us to believe that the consuls had regular modes of acting through their quaestors, and that these officials so far limited the power of their masters. It is not improbable that the quaestors were originally nominated by the consuls without the direct intervention of the people; but this does not exclude some popular ratification of the choice.[331] It was not until about the year 449 that their election was transferred to the newly-constituted comitia of the tribes.

And, as the consuls nominated their delegates, so the regal tradition was continued which gave them the nomination of their council of state, the Senate. In their choice of members they were legally as unfettered as the king had been, and could summon new members or omit to summon those already on the list.[332] So far as law went, the personnel of the Senate might now be changed annually. But custom must have been stronger than law. The body had gained a definiteness in its constitution, based on its representative character and probably on actual life-membership, which could not be easily destroyed, and the consul had a colleague at his side to check any attempt at capricious removal or selection. The short tenure of office must already have made a magistrate unwilling to exercise a power which might be so easily turned against himself in the near future. The discretionary power of the magistrate would have made the choice of Plebeians possible, now that they were possessed of all the essential rights of full citizenship;[333] but it does not appear that this choice could have been often, if ever, exercised. The patrician clans had a close hereditary connexion with the Senate; the interregnum, which was the transmission of auspices by the patres, had long been one of its privileges, and the prejudices of the patrician magistracy would hardly have allowed it to dip into the inferior order for councillors. If there be any truth in the story that, on the abolition of the monarchy, the thinned ranks of the patres were again raised to 300 by the inclusion of persons specially enrolled (adlecti or conscripti),[334] these added members were probably, like their predecessors, patrician. This large increase (placed by some at 164 members) gave rise to a transitory distinction between the older members and the new members, which—expressed in the formula of summons “qui patres, qui conscripti (estis)”—was finally merged in the general appellation of “conscript fathers.”[335] The expression may have originated with the abandonment or modification of some original principle of selection; but, if conscripti be taken to apply wholly to Plebeians, some date later than the commencement of the Republic must be accepted for the origin of the term.[336]

The history, indeed, of the next hundred and fifty years shows that the Senate is the stronghold of patrician prejudice. The power from which the Plebeians try to shake themselves free, is the patrum auctoritas, and the magistracy must soon have yielded to the demands of the new burgesses, had it not been backed up by a patrician council. Yet during the early Republic the Senate was a power distinctly secondary to the magistrates. Its two undoubted prerogatives were the interregnum and the patrum auctoritas. The first was exercised, perhaps, more occasionally even than it had been under the monarchy, for it could not be resorted to if one of the two consuls existed to nominate a successor. The second power, on the other hand, must have become far more formal than it had been in the time of the monarchy. Then it had been little more than the claim of the council to be consulted on important business;[337] now it was put forward as an integral part of the procedure of the state; it was framed after the voting in the assembly had taken place, and no law or election could be valid which had not, after it had passed the people, received this formal consent of the patres. We cannot trace the widening of the other powers of the Senate; but we must assume that it took up a more independent position in face of the consuls than it had done in that of the king. Perhaps the establishment of a treasury and of financial quaestors, who may have been selected from the council, led to its first connexion with finance. The new importance that foreign affairs assumed, in the constant wars in which Rome was engaged with the nations of Italy, must certainly have strengthened its control of this department.

But, on the whole, the earliest period of the history of the Republic is the epoch of the power of the magistracy. The traditions of the monarchy were so little forgotten that eight years after the establishment of the Republic, kingship in a modified form was again restored.[338] In 501 B.C., during a war with the Latins, the consuls nominated an individual with the royal title and powers. It was understood that this magister populi, or, as he was afterwards called, dictator,[339] was to remain in power only so long as the danger lasted; as the danger was originally military, a single campaign of six months was held to be the maximum duration of the office. During this time he was to exercise the full regal imperium, within as well as without the city, and the accompanying military jurisdiction without appeal. He was originally understood to be a purely military official and the commander of the infantry force; the command of the cavalry he entrusted to a magistrate who, on the analogy of the magistracies of the monarchy, was a delegate of his own, and bore the title “master of the horse” (magister equitum).[340] The dictatorship was conceived of as a purely military office, and, though it was occasionally used for other purposes in the later constitution, never lost its primitive character. Although it impeded for a time some of the most characteristic functions of the consuls, it was not a suspension, but a part of, the constitution. A small, struggling, and essentially military society, such as that of early Rome, contemplated martial law as an occasional necessity; there were times when the peril of the state was so great that it was felt that the citizens’ ordinary guarantees of protection should sink into abeyance if they were thought likely to interfere with the safety of the commonwealth. The dictatorship had an internal as well as an external side to its military character; it was even, perhaps, on its earliest institution, meant to control disobedient citizens as well as to oppose the enemy,[341] and was thus to some extent a party weapon in the hands of the Patricians against the refractory Plebs. We shall find that this summary military jurisdiction within the city was subsequently abolished, without much loss to the utility of the institution. Its true merit was the unity of administration which it created, the advantages of which were made more apparent by the clashing powers of the magistrates at a later stage of history. But the experience of the evils of divided authority did not first point out the necessity of the office. The dictatorship was an integral part of the original Republican constitution; the law allowing it was forgotten—perhaps it was the first lex Valeria which secured the appeal against the ordinary magistrates; but the right of the consul to declare martial law, as he did by appointing a dictator, was never questioned as was the parallel right, usurped by the Senate in later times, of arming the consul with military jurisdiction. But, although the nomination of a dictator could not be regarded as a violation of, or even as a break in, the constitution, it was rightly held to be a powerful party weapon in the hands of the patrician magistracy; and the attempts of the Plebs were directed, however unsuccessfully, to limit this mighty power which over-rode all privilege and law.

But the appointment of a dictator was supposed to be due to exceptional circumstances. It is only when we look to the peaceful life of the state, to the administration of law by the magistrate or the expression of popular will in the comitia, that we can estimate the strength of the position held by the patrician families.

The criminal law, which was doubtless during this period becoming more and more secularised and divorced from the direct control of religion, was the monopoly of the official class. A criminal case was an inquiry undertaken solely on the initiative of the magistrate; no question could come before the people until he had investigated it, and was then only submitted in a form prepared by him. In the early popular courts at Rome there was no power of amendment; the people could answer only “Yes” or “No” to the question put before them. We are ignorant of the extent of popular jurisdiction; it is possible that only sentences affecting the caput of a citizen were submitted to the assembly.[342] But there was no real guarantee that even such questions could be forced from the magistrate’s court. The lex Valeria which admitted the provocatio imposed no penalty on the magistrate who violated its provisions; the only hope lay in the veto of his colleague, and, if two consuls were in agreement, they might ride roughshod over the law. The consuls were ostensibly the only guardians of the criminal code; as it is inconceivable that, in an age which made little use of writing, two men selected on very varied grounds could have been regarded as fit expounders of this form of jus, we must, even in the domain of criminal law, go behind them and seek its true source in that formidable body, the college of pontiffs. The learning and activity of this body is known to us, however, chiefly in connexion with the divine or family or, as it would have been called in later times, the civil law. The change from monarchy to aristocracy introduced, in Rome as in Greece, an epoch of religious tyranny. A king, who is the head of the religious as well as of the secular life of the state, may hold the balance between the classes. He is more likely to repress than to encourage his advisers; he may find in popular rights a useful check to religious insolence. But remove the king and substitute an aristocracy like the Patriciate whose members hold supreme office in turn; let there be no distinction between clergy and laity in this body, so that there can be no conflict between the secular and sacred power, which may enable a third power to gain a footing; and let this body have a monopoly of the civil law—and we get unequalled possibilities of judicial tyranny. For two hundred years (509-304) the knowledge of the forms of procedure, the legis actiones, which formed the whole content of the civil law, was open to the patrician pontiffs alone.[343] We are told that, even after the outlined codification and publication of the law in the Twelve Tables, the formularies could only be repeated correctly under the guidance of the college, which for this purpose annually appointed one of its members to “preside over private suits.” It is true that the theory of civil procedure was the same as it had been in the time of the monarchy; the magistrate decided what special rule of process was applicable, and then the case was settled by an arbitrator chosen by the litigants.[344] But the magistrate must often have been unskilled, one of the college must always have stood by his side, and the pontiff so officiating was not merely an adviser to the parties but a witness to the performance. The pontiffs, however, were more than interpreters. They had, as the guardians of fas, their own sphere of law, relics of which survived into the late Republic, and within this sphere they were judges. They had a graduated scale of expiations for sins (piacula); they were the police who protected the sanctity of festal days (feriae), and inflicted spiritual penalties on the magistrate himself who dared to exercise jurisdiction on a day which they had declared holy; they issued and enforced commands which protected sacred places (loci sacri) and burial-grounds.[345] Vows (vota), to be effective, must be prescribed by them, and peculiarly efficacious were those fixed forms of prayer (certae precationes) which they had dictated word for word (de scripto praeire).

Against this phalanx of patrician power what forces could the Plebeians boast?

A certain amount of voting power in the comitia was all that they possessed. But this voting power, except on certain established points—the declaration of war and, when the law was observed, criminal jurisdiction—was very ineffective, for the assembly was wholly dependent for its summons and expression of opinion on the patrician consuls, and liable to interruption from the pious scruples of patrician augurs; and we have already seen how even the choice of magistrates could be hampered by the formalities which still conditioned the election.[346] But, even had these adverse circumstances been avoided, the voting power of the Plebeians was small. The comitia centuriata contained chiefly the propertied—for the most part the landed—class; and even in this assembly the two first classes and the knights, which would have consisted mainly of Patricians, had a majority of votes (118 out of 193). The small farmers and the artisans commanded but 74 or 75 votes; the great mass of the Proletariate was either wholly unrepresented or could dispose of but a single vote. It is important to inquire whether these classes excluded from the centuries were represented elsewhere, or whether there was an assembly possessing any real power in which Patricians and Plebeians were alike represented.

It has been proved beyond a doubt that at some period during the first three centuries of the Republic Plebeians came to be included in the comitia curiata.[347] The change was the result of two circumstances; firstly, the perfect equality of private rights between the members of the two orders—adrogation and adoption, both of which followed the possession of a familia, and in many cases gentilitas, being common to both—which rendered it impossible to draw distinctions amongst the curiales; and secondly, the reactionary influence of the centuriate assembly, which emphasised the idea that Patricians and Plebeians together made up the Populus.

Such a change must have been gradual; but, when it had occurred, the admission of the Plebeians made this assembly thoroughly democratic in form, for a vote in this comitia depended neither on land or wealth, but simply on personal membership of a curia, which was common to all the citizens. But it is the very comparison of such a body with the thoroughly timocratic organisation of the comitia centuriata which leads us to believe that, at the time when the Plebeians were admitted, the curiae had ceased to be a power. The condition reached by the comitia curiata in historical times will be described elsewhere. Its most distinctive right—the lex curiata—had perhaps been a real power in the hands of the Patricians, as long as they were its sole members, although their preponderance in the comitia centuriata would have made a conflict between these two bodies unlikely; but there probably never was a time when the masses of the Plebs gathered curiatim upset the verdict of the Patricians and wealthy Plebeians assembled centuriatim.

When we consider this situation, it is not surprising that the leading features of the first period of development of the Roman constitution (494-287 B.C.) were an attempt to limit the power of the magistrates, and a struggle of the Plebs for equality with the Patriciate. The two struggles do not run on parallel lines but are interwoven at every point, since the magistracy represented the Patriciate. Nor do they represent merely an effort to weaken or to obtain political privilege; in their earlier stages the motive of the Plebs is not ambition, but defence. Their first efforts have the negative object of the protection of rights, not the positive design of an attempt to share in a political power which was closed to their order.

Tradition represents the earliest social struggles of the Plebs as centring round two questions—the possession of the public land, and the law of debtor and creditor. They were no doubt closely connected, for assignment of land meant relief of debt, but the agitation that gathered round the public land was directed by individuals, was merely occasional, and led to no permanent results; it is less a part of constitutional than of political history, and its true nature is obscured by the fact that we cannot say how far the annalists have transferred to this early period the circumstances of the agrarian agitation of a later day. But the early mode of assignment of the public land deserves consideration; for, as one of the undoubted grievances of the Plebs, it may have been one of the motives that led to the first great political reform. Land conquered from the enemy was sometimes assigned to poorer citizens in small allotments by the state (ager assignatus); in later times it was sometimes sold by the state through its quaestors (ager quaestorius); and in both these cases it became private property. But, in the early Republic, the custom was growing up of leaving a great portion of conquered land—especially such as was fit only for pasturage or had been devastated in war—as state domain (ager publicus), and of allowing it to be held in usufruct (occupatio) by squatters who paid to the state for their privilege a proportion of the produce (vectigal), a tithe or a fifth. Large portions of such ager publicus had probably been originally a part of the king’s domains, and had been held by his clients, who would, of course, have been members of the lower class of the Plebs. But under the new conditions of things it was all the property of the state; and the theory was started, or confirmed, that in this case Patricians alone could be its occupants,[348] a privilege that had probably originated with the assumption that only the conquerors of the land could share in the spoils of war.[349] This privilege—comprehensible but legally absurd in that it involved the theory that clients of the state must belong to a particular order—could no longer be upheld on the same grounds, for Plebeians now marched to battle and could justly claim a share in the prizes of war. But the maintenance of this principle, even if justly carried out, could not have wholly solved the social problem. The Proletariate, who had no share in winning the prize, would have still been justly excluded; but it would at least have benefited the small plebeian farmer, and perhaps it was he that had most need of benefit.

For the small independent landholder was in a hopeless plight—far more hopeless than that of the client or emancipated slave who could claim his lord’s protection. His condition was due to the law of debtor and creditor—one, it seems, that was unknown to the old patrician community, and had originated within the plebeian order, but which the Patriciate, by adopting plebeian forms of law, could use with terrible force against its inventors. The original procedure was one of the manifold forms of nexum, or binding obligation created by the copper and the scales (per aes et libram). A man who borrowed was allowed to sell his perpetual services to his creditor conditionally—the condition being the non-repayment of the debt within a given time.[350] When the prescribed period had elapsed, the debtor and his whole familia passed into the power of his purchaser; he became his bondsman (nexus) until the debt was paid by his labour. As in such circumstances the debt was never likely to be liquidated, the small farmer became a mere dependent member of the household of the rich landowner, leaning on his mercy and subject to his caprice. No judicial process was necessary to create the condition. The simple proof (perhaps given before a magistrate) of the witnesses to the contract was all that was required. The enslavement of the citizen was, it is true, forbidden by Roman public law,[351] and the nexus remained a burgess.[352] But a very thin line separated such a condition from one of actual slavery.

It is probable that in early times plebeian law recognised no debt except that created by the nexal contract. But as Roman commerce extended it was impossible to observe this limitation; refinements of procedure extended this penalty to debts incurred by the patrician form of mere verbal promise (stipulatio, sponsio). The form of procedure in this case is known to us from the Twelve Tables. If the debt was confessed or proved before a court, an interval of thirty days was given to the debtor wherein to pay; at the end of this period he was arrested by the creditor (manus injectio) and brought before the consul, by whom, if no champion (vindex) presented himself to contest the debt, he was bound over (addictus) to the creditor. The latter could take him home and put him in bonds, but must give him a pound of corn a day. Another interval of sixty days followed, within which the prisoner was presented to the magistrate on three court days (nundinae). On the last his fate was sealed. He was no longer in the condition even of the nexus. His creditor might put him to death or sell him as a slave beyond the Tiber.[353] If there were more creditors than one,[354] they might divide the debtor’s body into equal portions; and the Twelve Tables gave immunity to the creditor who took more than his fair share of the flesh. This death-penalty was doubtless a humane alternative to perpetual imprisonment. Even if it did not submit the penalty, as a capital one, to appeal (provocatio), the danger, which could be brought home to relatives and friends by gradual mutilation, disfiguring but not fatal, must have roused their efforts to effect a ransom. It was the application of this law of debt, perhaps in even a harsher and more primitive form, that called forth the first resistance from the Plebs. The perpetual struggle for existence in which Rome was now engaged kept her armies constantly in the field, and the small farmer on service, who had no slaves, had to let his farm go to ruin in his absence and to mortgage his body when he returned.[355] The most obvious remedy was a general strike against the military levy; and this was attempted. Already in 495 a riot had been raised in Rome, which was only appeased by the promises of a popular consul, Servilius, that the nexi should be released for service, and that no one should seize goods or pledges from a soldier while he was in the field. The liberated citizens scattered the Volsci and Aurunci; their reward was a more rigorous enforcement of the law of debt by the other consul Appius. Servilius was appealed to, but would not use his right of veto against his colleague. It was plain that no one could rely on a consul’s auxilium being used on behalf of the Plebs.[356] A fierce stand against the conscription was now made by the desperate Plebeians; the patrician answer was the appointment of a dictator. Again the army took the field against the Volscians and the Sabines; but, when victory was assured, the legions were not disbanded, and a pretext was found for another campaign. On the march from Rome the plebeian contingents suddenly turned aside to a hill in the territory of Crustumerium, which, from the oath taken on its summit, was thenceforth called the “Mount of Curses” (sacer mons).[357] A plan, carefully thought out in the coteries and gatherings that had preceded the campaign,[358] was now carried into effect. The Plebs had already gathered in informal meetings (concilia) to discuss their grievances. All that they lacked to become a corporation which might rival that of the Populus, was to have at their head magistrates with great and recognised powers. They were now met in battle array to carry out this resolve; and it was not unnatural that the two plebeian magistrates whom they chose to rival the power of the consuls should bear the military appellation of tribunes.[359] It was made a condition of reconciliation with the patrician state which they had quitted, that these officers should have the power of suspending the decree of the consuls when levelled against a member of the Plebs. But, since little confidence was to be reposed in the government, the Plebs bound themselves by an oath, similar to that taken on the expulsion of the king, to destroy any one who offered injury or insult to their magistrates. The recognition of these new magistrates, with the powers their appointment involved, was effected by a lex centuriata perhaps passed in the very year of the secession (494 B.C.). The office of the tribuni plebis or plebei was modelled as closely as possible on that of the consuls. They were originally two in number, and had, with reference to each other, the mutual power of veto which the collegiate principle implied. They were from the first magistrates of the Plebs, hence none but Plebeians were eligible,[360] and they must from the first have been elected by an assembly of the Plebs. This assembly, however, did not perpetuate its original military character, and the unit of voting naturally selected for the city-gatherings at which the tribunes were appointed was the curia, to which Plebeians had for some time belonged. This assembly of the Plebs was known as the concilium plebis curiatim.[361]

With respect to power the tribunate has, from its origin, a double character. It possesses a negative control of the whole people (generally in the person of its magistrate) exercised in defence of the Plebs, and a positive authority within the plebeian community. The first power asserts itself in the right of veto, the second is shown in the power of eliciting resolutions (scita plebei or plebiscita) from the plebeian concilium. The first power, that of offering assistance (auxilium) to any Plebeian[362] who feels himself aggrieved by the decree of the magistrate, and suspending this decree by the exercise of the “veto,” was the raison d’être of the tribunate. The tribune was created to meet the consular imperium (contra consulare imperium),[363] and the fact that he could only exercise this power in person imposed on him certain obligations. The tribune might not stay a night without the walls, and the doors of his house were open day and night.[364] It was doubtless through the insufficiency of these presidents of the Plebs to cope with the demands for their assistance that their number was raised first to four (471 B.C.), and before the year 449 B.C. to ten[365]—changes which were ratified by the centuries and the Senate.

But a negative control over the magistrates of the state must be wholly ineffective unless there be some means of enforcing this control. Had the tribunes possessed no coercive power, the consul, in carrying out the law of debt or in summoning Plebeians for the levy, would simply have set their veto aside. We should have expected that such breaches of the law would have been guarded against by judicial prosecution before the courts of the community. But this was not consistent with the Roman idea of magistracy. Each magistrate had, to a greater or less degree, the power of enforcing his own decrees (coercitio), limited only by the right of appeal or the veto of his colleague; and this power could not be denied to the tribune. A logical consequence of his right of veto was that he could exercise this coercitio against the consuls themselves; the sanctity of his person (guaranteed by the Plebs and accepted by the Populus) rendered resistance hopeless; and all the weapons of the coercitio—arrest, imprisonment, fines, stripes, and death—were at the disposal of the champion of the Plebs.

Coercitio implies summary jurisdiction; and the infliction of fines beyond a certain limit, scourging, or death subjected a magistrate to the provocatio, and therefore made him a partner in a trial before a popular assembly. Hence the judicial power of the tribune, also a necessary consequence of his power of veto. Undoubtedly when the office was created this consequence was not foreseen. When it was found to be a necessary accompaniment of the tribunician power, tradition tells us that it was questioned by the Patricians. The historically worthless but typical trial of C. Marcius Coriolanus in 491 B.C. elicited a protest that the jus of the tribunes extended only to Plebeians.[366] The protest was idle, for the jus auxilii could not exist without the jus poenae against its violators. The violation of plebeian rights which was thus met by tribunician coercion and jurisdiction, was always an infringement of the safety or dignity of the tribune himself. Even the infliction of wrong on an individual through the violation of the tribune’s decree was a wrong done to the Plebs through him; it was not held to affect the rest of the community; hence the not unnatural belief of our annalists that, when the tribune pronounced a sentence against which there was an appeal, he brought the matter before the assembly of the Plebs.

This right of reference implies the power known as the jus agendi cum plebe. It was a power that could not have been contemplated on the establishment of the tribunate, but it proved a necessary consequence of the auxilium. Its acquirement meant a new infringement of the rights of patrician magistrates; for the summoning of the Plebs meant the calling away of a large portion of the Populus from the consuls. Two summonses of two assemblies containing the same individuals by different magistrates meant an inevitable conflict of authority, and the tribunician right of transacting business with the Plebs could not be secured but by a definite guarantee against consular interference. This guarantee was given, tradition says, by a resolution of the Plebs itself, passed in 492 B.C., two years after the institution of the tribunate, under the presidency of the tribune Sp. Icilius.[367] The date is probably too early, and the resolution must have been subsequently ratified by a lex of the centuries. It enacted that when the tribune addressed the Plebs no one should speak against or interrupt him; that the tribune should fine the offender and demand securities. If securities were not forthcoming, the offender should be punished with death and his property confiscated to the gods. If the fine were disputed the judgment should rest with the people. Whether by “people” here was meant Populus or Plebs, it was doubtless on this law that the plebeian assembly based its jurisdiction in the case of injury or insult being offered to its magistrate.

But the right of acting with the Plebs, which was thus guaranteed to the tribune, had another and more positive aspect. It might be used to elicit formal resolutions passed by the whole plebeian concilium in their own interests, and to give this body the character of a guild which, within certain limits, could pass rules binding on all its members. So long as the resolutions of this body were purely self-regarding, did not infringe on the public law, and were voluntarily accepted by all the members, they did not need formal ratification by any higher authority. But sometimes resolutions were passed which the Plebs was incapable of carrying into effect; in this case they were mere petitions to the only recognised legislative power, the consuls presiding over the comitia centuriata. We have an instance of this procedure, dated within forty years of the establishment of the tribunate, which shows how far-reaching the demands of this concilium might be. In 456 B.C. the tribune Icilius elicited from this assembly a resolution to the effect that the Aventine, until that time state property,[368] should be assigned to the Plebs. With this petition he approached the consuls and the Senate, and requested them to gain the consent of the comitia centuriata in due form of law.[369] The same procedure must be imagined for any plebiscita, which refer to matters affecting the whole community, down to the year 287, when, as we shall see, these resolutions of the Plebs were first raised to a level with the laws. In framing its resolutions the Plebs was as dependent on the tribune as the comitia was on the consuls; the rogatio of the magistrate could only be answered by the “Yes” or “No” of the burgesses. Its elective proceedings were similar to those of the whole people. The tribune, before he quitted office, nominated successors and submitted their names to the Plebs. The differences were that the voting was by curiae and not by centuries, that the patrum auctoritas had here no place, and that the formal taking of the auspices was not necessary to the validity of the proceedings, although doubtless the tribunes employed their right of taking private auspices[370] to give a sanctity to the act of the Plebs.

In one further and less important respect was this community of the Plebs modelled on the larger community of the Populus. In the year when the tribunate was established, the magistrates of the Plebs were given two assistants,[371] who bore the same relation to them as the two quaestors did to the consuls. Their functions were as undefined as those of the quaestors; but, when the powers of the tribunate were slightly better established, these delegates seem, like their prototypes, to have been concerned mainly with criminal jurisdiction and finance. They also kept the archives of the Plebs in the temple of Ceres, and it was thought that it was from this that their name aediles (possibly not their original title) was derived.[372] They served the tribunes in the exercise of their coercitio, seizing the offender or inflicting the death penalty. We find them performing this function in the trial of Coriolanus.[373] After the tribunes had gained criminal jurisdiction, they assisted them as delegates.[374] Their original financial functions are somewhat indefinable; but such functions are suggested by their office at the temple of Ceres and the archives which they guarded there—functions which find exact parallels in those of the quaestors at the temple of Saturn. It may have been one of their duties to exercise some supervision over the forced labour (operae) of the Plebeians, and this may have led to an early connexion with the repair of roads and buildings. Their police functions, their supervision of the market, above all their maintenance of the state religion amongst the masses, can hardly be referred to this early period.[375]

The aediles may originally have been nominated by their superiors; but election by the concilium of the Plebs, under the presidency of a tribune, is the only form of their appointment which is known to us. The office was legalised with the tribunate, and its holder possessed the same personal sanctity as the tribune, conferred first by oath and then by law.[376]

For the power of these plebeian magistrates rests wholly on a superstitious belief, consciously applied to fill up a gap in the public law. It might have been thought that magistrates elected by a large body of the citizens, whose powers were recognised by public law, would have been sufficiently protected by their position. But the Romans were slaves to legal formulae. The Plebs was not the community, nor even at first a legalised corporation within the city; the tribunes were, therefore, not magistrates of the state, and wore none of the insignia of office; they had not the imperium and the auspicia, and therefore could not be protected by the law of treason (perduellio), which avenged wrongs done to the state in the person of its magistrate. A substitute must be found in a religious sanction. Perhaps Rome is the only state that has definitely invested the demagogue or “champion of the people” with a halo of sanctity. This was first given him by the people whom he championed. The Plebs on the Mons Sacer had sworn an oath to destroy any one who destroyed their tribune—an oath which they perpetuated to their descendants. The sanctity of the tribunes, therefore, had originally no valid religious ground, for the Populus had not pronounced such an offender to be sacer, nor had the oath been taken by a magistrate on behalf of the whole community. It was simply a proclamation by a section of the people of the infringement of rights which they held would justify a revolution; and the declaration was accepted by the Roman state when it recognised the tribunate. But the inviolability of plebeian magistrates did not gain legal recognition until the reinstitution of the office in 449 B.C. Then the violator of the majesty of the tribune was made a sacer homo[377] in its later sense of “an outlaw” for the whole community, and the aediles and the plebeian decemviri were protected by the same ban. Yet the Roman jurists held that this law did not give sacrosanctitas, at least to the tribune; that was given by the “ancient oath” of the Plebs; the law only announced a penalty which might be carried out by any member of the community. This view was of importance, because it recognised the capital jurisdiction of the Plebs in all cases where their magistrates had been injured; and, although subsequent practice was unfavourable to this jurisdiction, its legality cannot be questioned. The tribune was himself the defender of his own personal inviolability and that of his fellow-officers; for it was he who summarily inflicted the punishment or proposed the penalty to the concilium. The crime of infringing plebeian liberties could not originally have borne a definite name; in later times it was brought under the vague conception of majestas, “the infringement of the greatness of the state.” The penalty might be a capital one, while the acts construed as infringement might be very slight indeed. Physical compulsion, blows, an attempt at murder were all obvious cases; but forcible resistance to a tribune’s will[378] came under this head, and, after the law which guaranteed the right of meeting to the Plebs, any act, whether of magistrates or individuals, which interrupted a meeting of the Plebs summoned by a tribune.[379]

In fact, during the earliest years of the struggles of the Plebs, the rights of the corporation are represented only by the powers of the tribune, through whom alone it claimed official recognition; and thus from 494 to the epoch of the decemviral legislation (451) the tribunate is engaged in efforts to gain a better representation of the plebeian community, and to secure an equality in the administration of the law, which should render the clumsy negative system of the constant interposition of their auxilium less necessary.

The first attempt seems to have been to some extent secured by the plebiscitum passed by Publilius Volero in 471, which enacted that the concilium of the Plebs, instead of meeting as before by curiae, should now meet by tribes (tributim).[380] As this was a purely self-regarding ordinance, it probably did not require the consent of Senate and people,[381] and we are told that it was looked on with disfavour by the Patricians. The grounds of their objections are not easily fathomed, nor is the gain to the Plebs brought about by the change particularly clear.[382] The number of the tribes at this time is unknown, but it was probably twenty-one. This growth had been brought about by an abandonment of the Servian principle. After the Roman territory, lost in great part during the earliest years of the Republic, had been regained, a wholly new subdivision of the ager Romanus had been adopted. The four Servian tribes were confined to the ring-wall of the city, and the land without the walls was now separated into tribus, which were called the country (rusticae) as opposed to the city tribes (tribus urbanae). Sixteen of these country tribes bear the names of patrician gentes;[383] they must have been named from the clan settlements and were obviously the first created. It is affirmed by Dionysius[384] that, at the time of the trial of Coriolanus (491 B.C.), the number of the tribes was twenty-one; but it has been conjectured with some plausibility that the twenty-first was added in this very year 471, when the tribe was first used for voting purposes, in order to create an inequality of votes, and that it bears its local name (Clustumina or Crustumina) in memory of the secession of the Plebs to the Sacred Mount.[385] The Plebs may have petitioned the consuls to add one more to the divisions of the state; for it was they alone who could effect the change, the creation of a tribe being an administrative act which none but the magistrates of the community could carry out.

These tribes were, like the earlier ones, local, and although there is no evidence for the view that landholders alone were included in them, yet the seventeen country tribes would naturally consist for the most part of peasant proprietors, and would, therefore, be a better organ for plebeian sentiment than the curiae, throughout which the landless plebeian clients might still be the representatives of their patrician lords.

This change soon produced an unexpected consequence. At some period between the passing of the Publilian law and the enactment of the Twelve Tables, the new plebeian practice was adopted as a basis for gatherings of the whole people. The Populus began to meet by tribes, and to form a comitia tributa. The Twelve Tables prove that this body early gained judicial competence;[386] but the history of the great change which placed a democratic assembly of the Populus by the side of the timocratic comitia centuriata is wholly unknown to us. It is probable that the original power of this new parliament was not extensive, and it may have been confined originally to the hearing of minor judicial appeals from the magistrates. About twenty years later it was found convenient to entrust the election of quaestors to the new assembly. Its attractiveness lay in the ease and rapidity with which the people might be summoned to meet by tribes within the walls, as compared with the stately formalities of the gathering of the army in the Campus.

The second great movement of the tribunate was an attempt to secure an equal administration of the law.

In the year 462 the tribune C. Terentilius Arsa made a proposal to the concilium of the Plebs that a commission of five should be appointed to clear up the forms of legal procedure, and by this means to fix limits to the judicial caprice of the consuls;[387] and in the next year a resolution of the whole college of tribunes was framed to this effect. It was obviously a measure which demanded the sanction of the Populus, and this it was for many years impossible to obtain. Even apart from the fact that the tribunes apparently intended their commission to consist wholly of Plebeians, it was felt to be a proposal that was revolutionary in the extreme; for it was nothing less than the demand for a code, for a written system of rules which should replace the elastic principles of justice, which were one of the mainstays of patrician power, and which would vulgarise the awful sanctity of the consulate and the pontifical college. It must also have been felt that codification must mean a compromise—some recognition of plebeian claims which would weaken the position of the ruling caste. Hence a stout opposition on the part of magistrates and Senate, and the bill, if it passed the concilium plebis at all,[388] was not allowed to go a step further. But the Plebs persisted in its efforts, and its answer to patrician opposition was to return year after year the same tribunes, formulating the same demands. In 458 B.C. the college approached the consuls on the subject, and asked them to formulate their objections to the bill;[389] for the moment there was the hope of an agreement, but at the end of the year the consent required was again refused. Three years more of agitation followed, and then it was felt that the original proposal must be abandoned. The tribunes expressed their willingness for the initiative to be taken by the patrician magistrates, and for a joint commission to be appointed. Meanwhile the years of discussion had caused the original proposal to assume larger dimensions. Reform which should bear a wholly non-party character was suggested in place of a mere codification. Information of the Greek Codes was to be gathered by a commission of three—a suggestion which was valuable in many ways; it was useful for purposes of delay, it gave an appearance of learning and thoroughness to the work, and perhaps some such basis was felt to be absolutely necessary for framing rules on points which the very indefinite Roman procedure had never considered. The return of the envoys in 452, after an absence of three years, renewed the demands of the tribunes for the instant prosecution of the work. A controversy between the orders as to the constitution of the commission ended in a compromise. Plebeians might be admitted; but, as a matter of fact, the patrician influence was so strong that the first board elected by the comitia centuriata appears to have consisted wholly of members of that order.[390] The appointment of the commission was a complete abrogation of the constitution. The consulship was abolished; the Plebs gave up their tribunate, some have thought in perpetuity, misled by the hope that the publication of the law would render such a check on the consular power unnecessary, and as a part of the compromise with the Patricians, and stipulated only that certain privileges which they had already gained by law should not be abrogated.[391] The provisional government appointed for the year 451 took the form of a board of ten men with consular power but not subject to the law of appeal.[392] The work was done within the year, and the code posted up on ten tablets (tabulae) and published to the masses. The people were summoned and told that the commission had created equal rights for all,[393] and the whole body of law was passed as a lex by the comitia centuriata. But at the end of the year it was declared that the work was not quite complete. Again the constitution was suspended, and a new board of ten appointed, this time inclusive of Plebeians.[394] Two new sections were added, thus bringing up the number of the tabulae to twelve; these also were confirmed by the centuries, and after the government of the “wicked ten” had abused its power and fallen, were published with the rest of the code by the consuls of 448.[395]

Although the law of the Twelve Tables (lex duodecim tabularum) was for the most part a codification of existing rules, it marks a distinct advance in the recognition of plebeian rights, and thus was of the utmost political importance in framing rules for the whole state the question before the commissioners was whether the customary law embodied in the code should be that which prevailed in the patrician, or that which held good in the plebeian community. In almost every important particular plebeian law was preferred. The reason was not any regard for plebeian rights (the decemvirs re-enacted the rule forbidding marriage between the orders), but the simplicity and the capacity for universality of this law. The code is not a hap-hazard collection, but a scientific compilation; the aim was a “levelling” of the law, an arbitrament between classes, such as had often formed the task of the Greek legislator; and in effecting this object the commissioners showed more wisdom than any Greek legislator of whom we hear. The idea of legislating for a class, or the still more foolish idea of perfect logical adjustment, are strikingly absent. The code is thoroughly Roman in its caution and good sense, its respect for the past, which it disregards only when old custom violates the rules of common sense, and its judicious contempt for symmetry. Such a code as this might be changed in detail, but was never likely to be repealed. It remained the “fountain of all public and private law,” and justly, for, according to Tacitus, it was the “consummation of equal right.”[396] Its rhythmical sentences were learnt by heart by school-boys in Cicero’s time.[397] Elaborate commentaries were written on it by the republican lawyer Aelius, and the imperial jurist Gaius, and by Labeo, who stands at the meeting-point between the two régimes; and in the sixth century A.D. Justinian, in the old age of the world, still respects many of the provisions which date from the infancy of Roman legislation.

The Twelve Tables contained the “whole body of Roman law” (corpus omnis Romani juris),[398] not in the sense that they were a complete and detailed system, but in the sense that they pronounced on all important or disputed points in all departments of law, private, criminal, and public.

The ordinances of private law embraced regulations as to marriage and family relations, testamentary disposition, inheritance, debt, and usury. The marriage recognised was the consensual contract of the Plebeians strengthened by usus. Emancipation was recognised as a consequence of the threefold sale of a son, and a form of adoption, probably already in use in the plebeian community, was thus made universal.[399] The law also facilitated the emancipation of slaves who had purchased their freedom and so helped to create the wealthy freedman class.[400] Perfect freedom of testamentary disposition, in accordance with the plebeian form of testament per aes et libram, was recognised; while in intestate inheritance and in guardianship the rights of the agnati, common to the Plebeians, were recognised as prior to those of the gentiles; sometimes peculiar to the Patricians.[401] The freedom of contract, guaranteed by the Tables, implied the old harsh law of debt; but the penalty was defined, the procedure carefully described, and every loophole of escape offered to the debtor.[402] At the same time usury was severely punished; ten per cent (unciarium fenus) was recognised as the legal rate of interest, and the usurer who exceeded it was punished more severely than the thief and compelled to restore fourfold.[403] The rules of procedure for all civil actions were laid down, such as the summons of parties and witnesses and the length of the trial. But the law did not reveal the forms of action; these were still hidden with the pontiffs.

In criminal matters the Twelve Tables recognise the old principle of self-help; a limb was to be given for a limb; but for minor wrongs compensation was allowed, and twenty-five asses were full reparation for a common assault. But there are survivals of the old religious penalties; the man who destroyed standing corn was hanged as an offering to Ceres,[404] and the involuntary homicide could expiate his guilt with the piaculum of a ram. The law was heavy on the abuse of freedom of speech; for death was the penalty for incantations or libels against a citizen.[405] The same penalty was inflicted on the judex who had accepted bribes;[406] while for perduellio in the form of “rousing an enemy against the state or handing over a citizen to the enemy” the death penalty was also enjoined.[407] Reference must have been made to criminal procedure since the quaestores parricidii were mentioned in the law.[408]

The principle of the constitution which guaranteed a fair trial to the citizen was upheld; for we have the statement of Cicero that the Twelve Tables granted the provocatio “from every kind of court and punishment”[409] In two other particulars they limited the jurisdiction of the people. It was maintained that no law or criminal sentence (for this took the form of a lex) should be directed against a private individual (privilegia ne inroganto), and it was laid down that no capital sentence could be passed except “by the greatest of the comitia” (nisi per maximum comitiatum),[410] i.e. by the assembly of the centuries. Later interpretation held that this clause struck a blow at the capital jurisdiction of the concilium plebis; it is, however, doubtful how far this extraordinary jurisdiction, resting on a religious sanction, could be affected by a law which, as we shall see, never treated the Plebs as a political corporation at all. Another important constitutional provision of this code was one which granted the right of free association. The Twelve Tables, while severely prohibiting secret gatherings (coetus nocturni)[411] which had presumably treasonable designs, permitted the free formation of guilds (collegia or sodalicia). Such colleges were to require no special charter; the rules which they made for their own guidance should be valid, provided they were no infringement of the public law.[412] Lastly, the code guaranteed the sovereignty of the popular assembly by declaring that its last enactment should be final, without setting limits to the sphere of its legislative activity.[413] This was a token of the Roman conviction that there should be no finality in law. The Twelve Tables themselves were not guarded against repeal. It was a forecast of further development following the course of the old, of a constitution whose stages were marked by elasticity and growth, not by rigidity and revolution.

The new law does not appear to have made mention of the Plebs and its tribunes, for they were hardly a part of the constitution; and yet, in the crisis that followed the fall of the decemvirate, the question that gathered round these ignored powers was great enough to obscure every other issue.

The Plebs might have been satisfied with the compromise, had it not been for the unfortunate attempt at despotism made by the second board of decemvirs. It is impossible to believe that this usurpation was really countenanced by the Patriciate, and that they aimed at staving off indefinitely the inevitable assaults of the Plebeians on the magistracy by indefinitely perpetuating this rule of ten annual commissioners without appeal; but they tolerated their rule, and backed up their excuses for not retiring, until two acts of tyranny raised mutinies in both the Roman camps. The plebeian soldiers cast off their allegiance to the ruling board, and first, under military leaders of their own choosing, occupied the Aventine; they then, accompanied by the majority of the unarmed Plebeians of Rome, wended their way a second time to the Mons Sacer (449 B.C.). The Senate in alarm sent two of its members, Valerius and Horatius, who were of good repute among the Plebs, to ask their wishes. The answer was: amnesty for the breach of military discipline involved in the secession; the restoration of the provocatio (which meant the dissolution of the decemvirate) and of the tribunician power.[414] The demands had not increased since the first secession; protection was all that the Plebeians yet demanded.

Everything was granted; the decemviri were forced by the Senate to an unwilling abdication; the tribunate was re-established, and, as no plebeian magistrate existed, the unusual step was taken of having the election conducted by the pontifex maximus.[415] A resolution was then elicited from the Plebs by the tribune Duilius that consuls should be created subject to the right of appeal. It was accepted by the Senate,[416] who appointed an interrex. The comitia of the centuries returned Valerius and Horatius. Under the guidance of the consuls the assembly proceeded to pass a series of laws (the leges Valeriae Horatiae) which more than satisfied the demands of the Plebs. One guaranteed the perpetuity of the provocatio by the enactment that “no one should in future create a magistrate from whom there was no appeal; any one who created such a magistrate should be protected by no law sacred or profane and might be slain with impunity.”[417] The law was evidently called out by the unlimited power of the decemvirate which had just been abolished; it did more than merely affirm the first lex Valeria,[418] for it rendered the creation of an absolute judicial power by the rogatio of a magistrate a capital offence, even when this proposal had been accepted by the people. But the scope of the appeal was not extended; the “creation” of a magistrate referred to election sanctioned by the people, and did not, therefore, affect the right of the consul to nominate a dictator from whom there was no appeal; nor did it extend the limits of the appeal beyond the original boundaries—the pomerium or, at the utmost, the first milestone from the city.[419]