that peace was concluded between the two parties by the fetial priests, with the forms adopted by Rome in making treaties with a foreign state. If this were fact, the “sacrosanctity” of the tribunes would be adequately explained, because all such formal foedera were “sacrosanct.” But, notwithstanding that the plebeians may safely be assumed to have been conscious of having to a large extent sprung from another race than the patricians and their retainers, it is not likely that the feeling was sufficiently strong to permit of the compact taking the form of a treaty between alien powers. Yet there must have been a formal acceptance by the patricians of the plebeian conditions; and most probably the oath which was first sworn by the insurgents was afterwards taken by the whole community, and the “sacrosanctity” of the plebeian officials became a part of the constitution. There must also have been some constitutional definition of the powers of the tribunes. These rested at first on an extension of the power of veto which the republic had introduced. Just as one consul could invalidate an order of his colleague, so a tribune could invalidate an order of a consul, or of any officer inferior to him. There was no doubt a vague understanding that only orders which sinned against the just and established practice of the constitution should be annulled, and then only in cases affecting definite individuals. This was technically called auxilium. The cases which arose most commonly concerned the administration of justice and the levying of troops.
Although the revolution of 494 gave the tribunes a foothold in the constitution, it left them with no very definite resources against breaches of compact by the patricians. The traditional history of the tribunate from 494 to 451 B.C. is obscure, and, so far as details are concerned, nearly worthless; but there is a thread running through it which may well be truth. We hear of attacks by patricians on the newly won privileges, even of the assassination of a tribune, and of attempts on the part of the plebeians to bring patrician offenders to justice. The assembled plebeians attempt to set up a criminal jurisdiction for their own assembly parallel to that practised by the older centuriate assembly, in which the nobles possess a preponderating influence. Nay, more, the plebs attempts something like legislation; it passes resolutions which it hopes to force the patrician body to accept as valid. As to details, only a few are worth notice. In the first place, the number of tribunes is raised to ten, how we do not know; but apparently some constitutional recognition of the increase is obtained. Then an alteration is made in the mode of election. As to the original mode, the ancient authorities are hopelessly at variance. Some of them gravely assert that the appointment lay with the assembly of the curiae—the most ancient and certainly the most patrician in Rome, even if we allow the view, which, in spite of great names, is more than doubtful, that the plebeians were members of it at any time when it still possessed political importance. The opinion of Mommsen about the method of election is more plausible than the others. It was in accordance with the Roman spirit of order that the tribunes, in summoning their assemblies, should not ask the plebeians to come en masse as individuals, and vote by heads, but should organize their supporters in bands. The curia was certainly a territorial district, and the tribunes may have originally used it as the basis of their organization. If tribunes were elected by plebeians massed curiatim, such a meeting would easily be mistaken in later times for the comitia curiata. At any rate, a change was introduced in 471 by the Publilian Law of Volero, which directed that the tribunes should be chosen in an assembly organized on the basis of the Servian or local tribe, instead of the curia. This assembly was the germ of the comitia tributa. The question by what authority the Law of Volero was sanctioned is difficult to answer. Possibly the law was a mere resolution of the plebeians with which the patricians did not interfere, because they did not consider that the mode of election was any concern of theirs. In the first period of the tribunate the tribunes almost certainly agitated to obtain for their supporters a share in the benefits of the state domain. And, whatever view may be taken of the movement which led to the decemvirate, an important element in it was of a certainty the agitation carried on by the tribunes for the reduction of the law of Rome to a written code. Until they obtained this it was impossible for them effectually to protect those who appealed against harsh treatment by the consuls in their capacity of judges.
During the decemvirate the tribunate was in abeyance. It was called into life again by the revolution of 449, which gave the tribunes a considerably stronger position. Their personal privileges and those of the aediles were renewed, while sacrosanctity was attached to a body of men called judices decemviri, who seem to have been the legal assistants of the tribunes. The road was opened up to valid legislation by the tribunes through an assembly summoned by them on the tribe-basis (concilium plebis), but in this respect they were submitted to the control of the senate. The growth of the influence of this assembly over legislation belongs rather to the history of the comitia (q.v.) than to that of the tribunate. After the Hortensian Law of 287 B.C. down to the end of the republic the legislation of Rome was mainly in the hands of the tribunes. The details of the history of the tribunate in its second period, from 449 to 367 B.C., are hardly less obscure than those which belong to the earlier time. There was, however, on the whole, undoubtedly an advance in dignity and importance. Gradually a right was acquired of watching and interfering with the proceedings of the senate, and even with legislation. Whether the absolute right of veto had been achieved before 367 may well be doubted. But the original auxilium, or right of protecting individuals, was, during this period, undergoing a very remarkable expansion. From forbidding a single act of a magistrate in relation to a single person, the tribunes advanced to forbidding by anticipation all acts of a certain class, whoever the persons affected by them might prove to be. It therefore became useless for the senate or the comitia to pass ordinances if a tribune was ready to forbid the magistrates to carry them out. Ultimately the mere announcement of such an intention by a tribune was sufficient to cause the obnoxious project to drop; that is to say, the tribunes acquired a right to stop all business alike in the deliberative assembly, the senate, and in the legislative assemblies, the comitia. The technical name for this right of veto is intercessio. To what extent the tribunes during the time from 449 to 367 took part in criminal prosecutions is matter of doubt. The XII. Tables had settled that offenders could only be punished in person by the centuries, but tradition speaks of prosecutions by tribunes before the tribes where the penalty sought was pecuniary. The two main objects of the tribunes, however, at the time of which we are speaking were the opening of the consulate to plebeians and the regulation of the state domain in the interests of the whole community. Both were attained by the Licinio-Sextian Laws of 367.
Then a considerable change came over the tribunate. From being an opposition weapon it became an important wheel in the regular machine of state. The senate became more and more plebeian, and a new body of nobility was evolved which comprised both orders in the state. The tribunes at first belonged to the same notable plebeian families which attained to the consulate. The old friction between senate and tribunes disappeared. It was found that the tribunate served to fill some gaps in the constitution, and its power was placed by common consent on a solid constitutional basis. From 367 to 134 B.C. (when Tiberius Gracchus became tribune) the tribunate was for the most part a mere organ of senatorial government. As the change made by the Gracchi was rather in the practice than in the theory of the tribunate, it will be convenient at this point to give a definite sketch of the conditions and privileges attaching to the office.
Even after the difference between patrician and plebeian birth had ceased to be of much practical consequence in other directions, the plebeian character was a necessity for the tribune. When the patricians P. Sulpicius Rufus and, later, P. Clodius (the antagonist of Cicero) desired to enter on a demagogic course, they were compelled to divest themselves of their patrician quality by a peculiar legal process. Even the patricians who became so by mere fiat of the emperors were excluded from the tribunate. The other necessary qualifications were for the most part such as attached to the other Roman magistracies—complete citizenship, absence of certain conditions regarded as disgraceful, fulfilment of military duties. The minimum age required for the office was, as in the case of the quaestorship, twenty-seven. The tribunate, however, stood outside the round of magistracies, the conditions of which were regulated by the Villian Law of 180 B.C. The election took place in a purely plebeian assembly, ranged by tribes, under the presidency of a tribune selected by lot. The tribune was bound by law to see a complete set of ten tribunes appointed. Technically, the tribunes were reckoned, not as magistrates of the Roman people, but as magistrates of the Roman plebs; they therefore had no special robe of office, no lictors, but only messengers (viatores), no official chair, like the curule seat, but only benches (subsellia). Their right to summon the plebs together, whether for the purpose of listening to a speech (in which case the meeting was a contio) or for passing ordinances (comitia tributa), was rendered absolute by the “laws under sacred sanction”
