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Since it is primá facie certain that all legislation must have
* Becker quotes the passage in proof to assume the very point that we disthat the patricians might not vote with pute, viz. that this populus meant the the tribes; but this is (over and above) | tribes.
803).svga of the senate. Perhaps then we may farther believe his account, that the other consul Quinctius, in dread of popular violence, finally persuaded the senate to remove Appius's difficulty by passing a senatusconsultum. But surely the senate would not have allowed such a precedent as legislation by the tribes. The law must, at any rate, have been voted in the centuries; and to invent the notion that it was dealt with in both assemblies, is a very gratuitous reconstruction of the narrative. But what are we to suppose Volero's policy to have been 2– It will be remembered that after the murder of Cn. Genucius, the tribunes were for the time panic-struck; but Volero's sagacity taught them new tactics. He saw that to impeach individual consuls, for merely executing the decrees of their whole order, was too cruel and revolting a procedure to succeed, since it only drew out the worst passions of the aristocracy. He saw farther, that the tribune could not expect to be allowed to harangue the centuriate assembly at pleasure, when no business was pending; for the consul would claim a right to break up the meeting, as probably Furius and Manlius had done. Volero, therefore, conceived the design of assembling the plebs by itself, that the tribune might be free from any patrician magistrate's attempts to silence him. In order to carry out his object, he did not directly demand it in its fulness; but he proposed that the plebs should assemble according to tribes, in order to elect its own officers. He foresaw, (it would seem,) that when once the principle had been established that the tribune had a right to summon the plebs for elections, and, of course, to harangue them at such times, it would prove impossible for the patricians to resist the claim of the tribune to address his constituents as often as he pleased. But whether, as Zonaras may be thought to say, in the second year of the struggle, this right of holding public meetings was added to the Publilian laws, and enacted formally, or whether the right was merely won by use, must here be left undecided. It may seem that the assembly of centuries became less interesting to the plebs from the time that they earned leave to meet in tribes; and the consular elections were more neglected by them than ever since the death of Sp. Cassius. Nevertheless, consuls arose who saw that an agrarian law was needful, and the colony to Antium was given as an instalment.
When the Lex Terentilla was next resisted by violence, on the same ground (as we have seen) that a tribune had no right to originate legislation, a singular episode took place in the seizure of the Capitol, which united the more reasonable of both parties against the common foe, and a moderate senatusconsultum, “ne tribuni legem eo anno ferrent,” (III. 21,) virtually acknowledged that in other years it would not be inadmissible. The year after, when the tribunes renew their proposals of the law, the prefect of the city prevails on them to delay it “till the consuls' return,” (III. 24); which is a new indication that the proceedings went on in the centuriata, since the consuls could not have interfered with mere resolutions passed in the tributa.” But in fact, who would call the proposal of such invalid resolutions, legem ferre f Surely, unless we imagine the comitia tributa to have been already a legislative body equivalent to the centuriata, every notice of these matters refutes Niebuhr's idea. It avails nothing to say with Arnold, that the resolution of the tribes was at present a mere “petition,” (called Legis Latio !) and that the curies and senate gave the true legislative authority to the bill; for this is to do away with the centuries entirely. The curies and the senate united, from the time of Servius, had no legislative power without the centuries; in fact, if the centuries had not had it before the Decemvirate, they would never have gained it at all, but the tribes would entirely have superseded them.
Dionysius has the merit of preserving for us the procedure used in the struggle for the Lex Icilia, (concerning which Livy has only the dry words, De Aventino publicando lata lex est); and although his details seem to be exaggerated, it is impossible to doubt the outline of his account, which admirably combines with the series of events, as told in Livy. The tribunes had always been foiled in their attempts to originate legislation in the centuries, except in the case of the Publilian laws, which were carried by terrifying the senate. Sp. Licinius and others, by stopping the levies, had not succeeded in forcing the consuls to legislate, except in the compact to increase the number of
* Perhaps this is still more pointedly acciperent, &c., &c. How plain also, brought out in ch. 9, quum timerent that a refusal of the sanction of the Patres, ne, absentibus consulibus, jugum | Curiae was not dreamed of as possible!
tribunes. Icilius now originated the idea of claiming that the consuls should present his petition to the senate in the name of the commons, and demand of it a preliminary approval. He was successful: the bill was brought in, and passed: and thenceforth, it seems, the tribunes began to get access to the senate, though by sufferance only, like our reporters for the press.-This is instructive, as showing how little the rights of the tribunes were provided for at first by definite enactment. If they bring in a bill before the centuries, it would be as vain to infer that that power must have been formally guaranteed to them by statute, as in the very similar case of forcing their bill on the senate's attention. Perhaps the most startling prerogative of the tribune is, that of applying to public business of every kind the Veto, which was intended to operate only against the execution of a consular sentence. Two sources of this strange power may be discerned: the one, is their ability to thwart the consular right of levying troops; (by help of which, Liv. Iv. 30, the tribunes vindicate for the centuries, against the senate, the authority to make war;) the other, which does not appear to be observed, but may have been the more important engine, was that of preoccupying the assembly. The first instance of this, I believe, is in Liv. III. 10; where the consul L. Lucretius is unable to carry the bill for his triumph, (of course in the centuriata, as the tribes as yet had no national authority,) because the tribune was pleading for the Lex Terentilla; and at last gave way only in courtesy. Equally might the tribunes introduce sham business in order to obstruct, as soon as it was conceded that they, as representatives of the commons, had a prior claim on the assembly. We have here, in passing, one more confirmation of our belief, that the tribune, before the Decemvirate, brought in his laws to the centuries: for if Livy had meant that the consul could not hold the centuries because the tribune had occupied the plebs in the comitia tributa, we might expect him to express this more distinctly. One and only one circumstance may withhold us from saying that Livy consciously and consistently regarded the early tribunes as concerned (in legislation and in impeachments,) with the centuries; which is, that he occasionally names the forum as the scene of action. Thus, II. 56, in the Publilian struggle,
“concursus hominum in forum”—“collegam de foro abducerent.” If we must call this carelessness, it will a little weaken our argument drawn from his use of the word populus. Still, the entire stress of testimony and of reasoning is on the side here advocated; nor ought we perhaps to be very certain that in early times the centuries necessarily met in the Campus Martius, for laws as well as for elections."
If it be correct, that the tribune was originally an officer of the classes, it is improbable that he can primitively have been called Tribunus; and this becomes impossible, if there was no assembly of the tribes until after the law of Volero. But what may have been his earlier title 2 We may conjecture that it was Patronus Plebis; which is shadowed out in the words of the dictator Valerius, (Liv. II. 31,) where the historian is prophesying of the tribunes: “Optabitis, me Dius Fidius, propediem, ut mei similes Romana plebes Patronos habeat.” That no notice is on record that the tribune was not so named from the beginning, may be thought adverse to the theory here maintained; yet it must be remembered that, without Varro and Festus, no one could have guessed from Livy's obscure phrase, (II. 18, moderatorem ac magistrum consulibus appositum,) that the dictator was originally called Magister Populi; which we now see is probably alluded to.
F. W. NEWMAN.
* In Cicero's first letter to Atticus, the Campus : which, however, may (of the common edit.) it appears that perhaps be accounted for. the tribunician elections were held in