This law placed by the side of the two patrician consuls two plebeian tribunes, who were to be elected by the plebeians assembled in curies. The power of the tribunes was of no avail in opposition to the military -imperium-, that is, in opposition to the authority of the dictator everywhere or to that of the consuls beyond the city; but it confronted, on a footing of independence and equality, the ordinary civil powers which the consuls exercised. There was, however, no partition of powers. The tribunes obtained the right which pertained to the consul against his fellow-consul and all the more against an inferior magistrate,(4) namely, the right to cancel any command issued by a magistrate, as to which the burgess whom it affected held himself aggrieved and lodged a complaint, through their protest timeously and personally interposed, and likewise of hindering or cancelling at discretion any proposal made by a magistrate to the burgesses, in other words, the right of intercession or the so-called tribunician veto.

Intercession

The power of the tribunes, therefore, primarily involved the right of putting a stop to administration and to judicial action at their pleasure, of enabling a person bound to military service to withhold himself from the levy with impunity, of preventing or cancelling the raising of an action and legal execution against the debtor, the initiation of a criminal process and the arrest of the accused while the investigation was pending, and other powers of the same sort. That this legal help might not be frustrated by the absence of the helpers, it was further ordained that the tribune should not spend a night out of the city, and that his door must stand open day and night. Moreover, it lay in the power of the tribunate of the people through a single word of a single tribune to restrain the adoption of a resolution by the community, which otherwise by virtue of its sovereign right might have without ceremony recalled the privileges conferred by it on the plebs.

But these rights would have been ineffective, if there had not belonged to the tribune of the people an instantaneously operative and irresistible power of enforcing them against him who did not regard them, and especially against the magistrate contravening them. This was conferred in such a form that the acting in opposition to the tribune when making use of his right, above all things the laying hands on his person, which at the Sacred Mount every plebeian, man by man for himself and his descendants, had sworn to protect now and in all time to come from all harm, should be a capital crime; and the exercise of this criminal justice was committed not to the magistrates of the community but to those of the plebs. The tribune might in virtue of this his judicial office call to account any burgess, especially the consul in office, have him seized if he should not voluntarily submit, place him under arrest during investigation or allow him to find bail, and then sentence him to death or to a fine. For this purpose the two plebeian aediles appointed at the same time were attached to the tribunes as their servants and assistants, primarily to effect arrest, on which account the same inviolable character was assured to them also by the collective oath of the plebeians. Moreover the aediles themselves had judicial powers like the tribunes, but only for the minor causes that might be settled by fines. If an appeal was lodged against the decision of tribune or aedile, it was addressed not to the whole body of the burgesses, with which the officials of the plebs were not entitled at all to transact business, but to the whole body of the plebeians, which in this case met by curies and finally decided by majority of votes.

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.

From the Abolition of the Monarchy in Rome to the Union of Italy Page 14

Italian Authors

Italian Books

Free Books in the public domain from the Classic Literature Library ©

Italian Books
Theodor Mommsen
Classic Literature Library

All Pages of This Book