While in jurisdiction they stood from the beginning on an equality with the consuls and in the early stages of the conflicts between the orders acquired like the consuls the right of initiating legislation, they now received--we know not exactly when, but presumably at or soon after the final equalization of the orders--a position of equality with the consuls as confronting the practically governing authority, the senate. Hitherto they had been present at the proceedings of the senate, sitting on a bench at the door; now they obtained, like the other magistrates and by their side, a place in the senate itself and the right to interpose their word in its discussions. If they were precluded from the right of voting, this was simply an application of the general principle of Roman state-law, that those only should give counsel who were not called to act; in accordance with which the whole of the acting magistrates possessed during their year of office only a seat, not a vote, in the council of the state.(17) But concession did not rest here. The tribunes received the distinctive prerogative of supreme magistracy, which among the ordinary magistrates belonged only to the consuls and praetors besides--the right of convoking the senate, of consulting it, and of procuring decrees from it.(18) This was only as it should be; the heads of the plebeian aristocracy could not but be placed on an equality with those of the patrician aristocracy in the senate, when once the government had passed from the clan-nobility to the united aristocracy. Now that this opposition-college, originally excluded from all share in the public administration, became--particularly with reference to strictly urban affairs--a second supreme executive and one of the most usual and most serviceable instruments of the government, or in other words of the senate, for managing the burgesses and especially for checking the excesses of the magistrates, it was certainly, as respected its original character, absorbed and politically annihilated; but this course was really enjoined by necessity. Clearly as the defects of the Roman aristocracy were apparent, and decidedly as the steady growth of aristocratic ascendency was connected with the practical setting aside of the tribunate, none can fail to see that government could not be long carried on with an authority which was not only aimless and virtually calculated to put off the suffering proletariate with a deceitful prospect of relief, but was at the same time decidedly revolutionary and possessed of a--strictly speaking --anarchical prerogative of obstruction to the authority of the magistrates and even of the state itself. But that faith in an ideal, which is the foundation of all the power and of all the impotence of democracy, had come to be closely associated in the minds of the Romans with the tribunate of the plebs; and we do not need to recall the case of Cola Rienzi in order to perceive that, however unsubstantial might be the advantage thence arising to the multitude, it could not be abolished without a formidable convulsion of the state. Accordingly with genuine political prudence they contented themselves with reducing it to a nullity under forms that should attract as little attention as possible. The mere name of this essentially revolutionary magistracy was still retained within the aristocratically governed commonwealth--an incongruity for the present, and for the future, in the hands of a coming revolutionary party, a sharp and dangerous weapon. For the moment, however, and for a long time to come the aristocracy was so absolutely powerful and so completely possessed control over the tribunate, that no trace at all is to be met with of a collegiate opposition on the part of the tribunes to the senate; and the government overcame the forlorn movements of opposition that now and then proceeded from individual tribunes, always without difficulty, and ordinarily by means of the tribunate itself.

The Senate. Its Composition

In reality it was the senate that governed the commonwealth, and did so almost without opposition after the equalization of the orders. Its very composition had undergone a change. The free prerogative of the chief magistrates in this matter, as it had been exercised after the setting aside of the old clan-representation,(19) had been already subjected to very material restrictions on the abolition of the presidency for life.(20)

A further step towards the emancipation of the senate from the power of the magistrates took place, when the adjustment of the senatorial lists was transferred from the supreme magistrates to subordinate functionaries--from the consuls to the censors.(21) Certainly, whether immediately at that time or soon afterwards, the right of the magistrate entrusted with the preparation of the list to omit from it individual senators on account of a stain attaching to them and thereby to exclude them from the senate was, if not introduced, at least more precisely defined,(22) and in this way the foundations were laid of that peculiar jurisdiction over morals on which the high repute of the censors was chiefly based.(23) But censures of that sort--especially since the two censors had to be at one on the matter --might doubtless serve to remove particular persons who did not contribute to the credit of the assembly or were hostile to the spirit prevailing there, but could not bring the body itself into dependence on the magistracy.

But the right of the magistrates to constitute the senate according to their judgment was decidedly restricted by the Ovinian law, which was passed about the middle of this period, probably soon after the Licinian laws. That law at once conferred a seat and vote in the senate provisionally on every one who had been curule aedile, praetor, or consul, and bound the next censors either formally to inscribe these expectants in the senatorial roll, or at any rate to exclude them from the roll only for such reasons as sufficed for the rejection of an actual senator.

From the Abolition of the Monarchy in Rome to the Union of Italy Page 31

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Theodor Mommsen
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