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ON THE GROWTH OF THE TRIBUNE'S POWER BEFORE
Much obscurity, it must be confessed, rests upon the early state and power of the Tribes, as well as of the Tribunes; nor does it appear that Niebuhr and his successors have here shown the right mode of investigation. As usual, the first and most fundamental question is, the weight to be assigned to different authorities. The effort of the old critics was, in some way or in any way, to reconcile them all; the moderns generally disown that proceeding: and it will perhaps be now admitted that Dionysius is by no means so trustworthy as Livy, though in many matters, (especially those which concern war and foreign affairs,) Niebuhr has most satisfactorily shewn that the latter has followed a wholly false narrative. Perhaps, indeed, it is not too strong to say, that the testimony of Dionysius has (as such) absolutely no weight with Niebuhr: nevertheless, a frequent unwillingness to depart from his positive assertions, appears to have forced Niebuhr into an admission of many incongruities. So also Becker, in his excellent discussion on the Tribunate, (Antiq. vol. 11. part 2, p. 279,) while characterizing Dionysius's statements as “suspicious and full of contradictions,” says that it is impossible to set aside the general account “without a system of hypotheses void of all guarantee.” He elsewhere admits that Dionysius greatly exaggerates the early power of the tribunes, and here hints that (with Niebuhr) we may doubt whether the story of Coriolanus is right in chronology ; but, he adds, “no one will dare to go beyond the doubt."
It does not appear to me that any one is chargeable with baseless hypothesis, for maintaining that Livy is to be followed, in regard to constitutional history, to the total neglect of Dionysius. The latter is an acute critic and a learned antiquarian ; but he was also a theorist, and his theories have demonstrably carried away and perverted his good sense. His diffusedness and his affectation of accuracy are quite enough to condemn him. In the affair of Coriolanus he is so infatuated as to believe that he has preserved the very arguments by which the patricians were persuaded to yield up their dearest rights; VII. 66, επειδή ουχ όπλοις αλλήλους βιασάμενοι και προσαναγκάσαντες, αλλά λόγους πείσαντες μεθήρμοσαν, παντός μάλιστα αναγκαίον ήγησάμην είναι, τους λόγους αυτών διεξελθείν. He proceeds to moralize on the error of historians who describe deeds, but do not report speeches :-—and this, as his conclusion to a series of events quite incredible, and concerning which it is morally certain that he had no authentic details, though he fills thirty tedious chapters with his account. When indeed he mistook the Assembly of the Curies for a plebeian meeting, why should we any longer rest at all on his statements (however positive) concerning early Comitia ?
When we consider that, by universal consent of historians, the original tribune was only a helper of oppressed individual plebeians, and that in the few instances in which the social rank of tribunes of the plebs is alluded to they do not rise above the grade of centurions, it is incredible that in the course of a few years, without any new insurrection, they should possess a veto against consular elections, as Dionysius represents, viii. 90. [o oyunpyo., Tð XWXÚELV Övteç xúp!ol, &c.] How much more, that the plebs, of whom a majority was confessedly very poor, to say nothing of their debts, should win of the patricians by persuasion (Nórous teicavtes) the constitutional right of voting by the head concerning any patrician's life! I know not how, emphatically enough, to express my inability to believe this ; and it surprises me that Niebuhr should seek to prop it up by appealing to Italian international customs. Not quite so absurd, and yet as undeserving of credit, does the statement of Dionysius appear, that one of the Publilian laws formally guaranteed to the plebs, πάντα τα άλλα, όσα εν τω δήμω πράττεσθαί τε και επικυρούσθαι δεήσει, υπό των φυλετών έπαψηφίζεσθαι κατά ταυτό, ΙΧ. 43. This would have anticipated the Valerian Horatian laws,
which, (as expounded by Dionysius,) made the assembly of the tribes equivalent to that of the centuries.
Again, during the struggle for Volero's law, the same writer represents the tribunes as having a seat in the senate, and as there replying to Appius, (IX. 49,) Torà Mèv ’Atriou xatnyopσαντος, πολλά δε των δημάρχων αντιλεξάντων,-which is undoubtedly anachronistic.
Dionysius, moreover, would have us believe that the dreadful penalties against interfatio were passed (at least by a plebiscitum) in the very first year of the tribunate, (v11. 17.) The tribune, it seems, if interrupted while addressing the people, might demand of the offender bail to any amount that he pleased ; and if the bail was not found, the offender was sentenced to death, and his property consecrated! Niebuhr indeed observes that this is certainly put too early by Dionysius; but is it not intrinsically incredible at any time ? for it would be equivalent to putting full power over property and life into the tribune's hand. If, however, it be only an anticipation, we still bring out the same conclusion that Dionysius is no authority in these matters.
Now, in fact, while we confine ourselves to Livy's modest account, although we find a great deficiency of information, we meet none of these startling incongruities ; and the growth of the tribune's power in his narrative is the more convincing, because he evidently is not aiming to systematize. Let us here try to sketch the view of things, which any intelligent reader would gather without Dionysius.
That Servius divided the nation into 30 local tribes, is not indeed stated by Livy, who only adverts to the 4 city tribes, (I. 43.) Yet when the 21 tribes of the early republic are named, it sufficiently appears that they were local divisions, not unlike our parishes. Whether the officers, who were created on the Sacred Mount, were at once entitled tribunes, may be judged uncertain, when it is remembered that consuls and dictators are called by their own names in the historians from the beginning, although it comes out accidentally that praetor and master of the people were the original titles. As the five tribunes were chosen “singuli ex singulis classibus,” (Ascon. in Ciceronis Cornelianam,) the original relation of the tribunes may seem to have been rather to the classes than to the tribes. When, fourteen years after the law of Volero, their numbers are made ten, Livy calls them bini
ex singulis classibus, still preserving the primitive idea : and this agrees to their being originally chosen in the Comitia Centuriata, as Livy must mean to say. The duty of the tribunes was, to arrest any unequitable judgment or act of the consuls against a plebeian ; and (although it is not expressly named by Livy,) we must add,—to carry before the people any appeal, which, in accordance with the Valerian law, an individual plebeian might wish to make. This (I apprehend,) must be Livy's view ; for he evidently believes that the Valerian law was intended for the nation at large (grata in vulgus, 11. 8.) The populus to whom an appeal was allowed for the vulgus, can have been no other (in Livy's mind, or in fact,) than the Comitia Centuriata; and it is evident that as long as only a patrician magistrate had power to bring forward the appeal, or indeed to call the assembly, the Valerian law was liable to be a dead letter to the plebeians. Niebuhr therefore seems rightly to point out this as a primary duty of the tribune; whose interposition certainly was not intended as a shield for the guilty, nor as the verdict of a supreme tribunal, but only to secure for the plebeian an access to the legitimate court.
Now if this be conceded, it is clear that the primitive relation of the tribune was not to the Tribes, (with whom we cannot ascertain that he had any thing at all to do,) but to the classes or centuries; moreover, that until the tribes gained the right of receiving an appeal from a magistrate, (as I suspect, by the Valerian Horatian law de provocatione,) the tribune must of necessity have had authority to summon the comitia centuriata in order to lay appeals before it. And this seems to give us a real clue to the development of the tribune's power.
After, indeed, the law of Volero was carried, the tribune was brought at once into a direct relation with the tribes, as such ; nevertheless, a general survey of the narrative appears to me to prove, that until the tribes received legislative power by the revolution which overthrew the Decemvirate, the tribune preserved his right of convoking the centuries for appeals, and struggled for that of originating legislation in them. Beside the function of auxilium towards individual plebeians, (which was a sort of social administrative duty,) the early tribunes attempted three modes of purely political action, which in the eyes of the aristocracy were usurpation and abuse. The first was by impeachment of patricians for offences against the commons