Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/761

STRUGGLE OF THE ORDERS.] consuls, 1 and a curse was invoked upon the man who should injure or impede the tribune in the performance of his duties. 2 The number of tribunes was at first two, then -) five, and before 449 B.C. it had been raised to ten. The fact that the institution of the tribunate of the plebs was the one result of the first secession is strong evidence that the object of the seceders was not economic or agrarian reform but protection against the consuls. The tribunate gave them this protection in a form which has no parallel in history. The tribune was not, and, strictly speaking, never became, a magistrate of the Roman people. His one proper prerogative was that of granting protection to the oppressed plebeian against a patrician officer. This prerogative (jus auxilii) was secured to the tribunes, not by the ordinary constitution, but by a special compact between the orders, and was protected by the ancient oath (vetus jusjurandum), 3 which invoked a curse upon the violator of a tribune. This exceptional and anomalous right the tribunes could only exercise in person, within the limits of the " pomoerium," and against individual acts of magisterial oppression. 4 It was only gradually that it expanded into the later wide power of interference with the whole machinery of govern- ment, and was supplemented by the legislative and judicial powers which rendered the tribunate of the last century B.C. so formidable, and the " tribunitia potestas " so essen- tial an element in the authority of the emperors. But from the first the tribunes were for the plebs not u ilia. on iy protectors but leaders, under whom they organized themselves in opposition to the patricians. The tribunes convened assemblies of the plebs (concilia plebis), and carried resolutions on questions of interest to the order. This incipient plebeian organization was materially ad- 8 vanced by the Publilian law of 471 B.c., 5 which appears to have formally recognized as lawful the plebeian concilia, and established also the tribune's right "cum plebeagere," i.e., to propose and carry resolutions in them. These assemblies were " tributa," or, in other words, the voting in them took place not by curies or centuries but by tribes. In them, lastly, after the Publilian law, if not before, the tribunes were annually elected. 6 By this law the founda- tions were laid both of the powerful " comitia tributa " 7 of later days and also of the legislative and judicial prerogatives of the tribunes. The patricians maintained indeed that resolutions (plebiscita) carried by tribunes in the concilia plebis were not binding on their order, but the moral weight of such resolutions, whether they affirmed a general principle or pronounced sentence of condemnation on some single patrician, was no doubt considerable. jrian [t is at any rate certain that the passing of the Publilian ition. i aw was followed by increased activity on the part of the tribunes. The attack on the consular authority was continued, and combined with it we have a persistent effort made to secure for the plebs their fair share of the common lands of the state (agri publici). The main object, however, of this early agrarian agitation was not economic but political. Membership in a tribe was now more than ever important for a plebeian, as giving a vote not only in the comitia centuriata but also in the plebeian "concilia," and membership in a tribe was possible as yet only for freeholders. 8 To increase the number of freeholders 1 Cic. De Rep. , ii. 34, " contra consulare imperium creati. " 2 Livy, iii. 55. 3 Festus, 318; Appian, B. C., i. 138. 4 Gell., xiii. 12, "ut injuria quae coram fieret arceretur." 8 Livy, ii. 56, 60 ; Dionys., ix. 41 ; Schwegler, ii. 541 ; Soltau, 493. 6 For theories as -to the original mode of appointing tribunes, see Mommsen, Forsch., i. 185. 7 It is impossible to accept Mommsen's theory of a patricio-plebeian comitia tributa, as distinct from the plebeian assembly by tribes. 1 " Proletarii " were not admitted before the decemvirate, and according to Mommsen not until 310 B.C. There were now twenty- one tribes, seventeen having been added shortly after the establish- ment of the republic. Livy, ii. 21 ; Soltau, 481. 737 became therefore a matter of importance, and the simplest mode of increasing the number of freeholders was for the state to create freeholds on the common lands. But such a policy met with bitter opposition from the patricians, who had long enjoyed a virtual monopoly of these lands, and had excluded the plebeians even from those more recently acquired tracts which they had helped to win by their swords. Against this patrician monopoly the tribunes unceasingly protested from a few years after the first secession down to 465 B.C. 9 In that year a compromise 289. was effected by the colonization of Antium, which had been taken the year before, and the plebeians obtained land without any disturbance of patrician occupiers. Eleven years later the common lands on the Aventine were reclaimed and assigned to plebeians by a lex Icilia. 10 But this agrarian agitation, though destined subse- The de- quently to play an important part in the history, was for cemvirate the time far less fruitful in results than that which was directed against the consular authority. The proposal of C. Terentilius Arsa (460 B.C.) to appoint 294. a plebeian commission to draw up laws restricting the powers of the consuls u was resolutely opposed by the patricians, but after ten years of bitter party strife a compromise was effected. A commission of ten patricians was appointed, who should frame and publish a code of law binding equally on both the orders. These decemviri were to be the sole and supreme magistrates for the year, and the law of appeal was suspended in their favour. 12 The code which they promulgated, the famous XII. Tables, owed little of its importance to any novelties or improve- ments contained in its provisions. For the most part it seems merely to have reaffirmed existing usages and laws (see ROMAN LAW). But it substituted a public, written law, binding on all citizens of Rome, for an unwritten usage, the knowledge of which was confined to a few patricians, and which had been administered by this minority in their own interests. With the publication of the code the proper work of the decemvirs was finished ; nevertheless for the next year a fresh decemvirate was elected, and it is conceivable that the intention was per- manently to substitute government by an irresponsible patrician " council of ten " for the old constitution. How- ever this may have been, the tyranny of the decemvirs themselves was fatal to the continuance of their power. We are told of a second secession of the plebs, this time to the Janiculum, and of negotiations with the senate, the result of which was the enforced abdication of the decem- virs. The plebs joyfully chose for themselves tribunes, and in the comitia centuriata two consuls were created. But this restoration of the old regime was accompanied by Valerio- legislation which made it an important crisis in the history Horatian of the struggle between the orders. With the fall of the aws ' decemvirate this struggle enters upon a new phase. The tribunes appear as at once more powerful and more strictly constitutional magistrates ; the plebeian " concilia" take their place as formal comitia by the side of the older assemblies ; and finally this improved machinery is used not simply in self-defence against patrician oppression but to obtain complete political equality. This change was no doubt due in part to circumstances outside legisla- tion, above all to the expansion of the Roman state, which swelled the numbers and added to the social importance of the plebs as compared with the dwindling forces of the close corporation of patrician gentes. Still the legislation 9 Whatever the historical value of the story of Sp. Cassius's agrarian law, the existence of a sustained agrarian agitation during this period can hardly be doubted (Mommsen, Horn. Forsch., ii. 153 ; Schwegler, ii. 455). 10 Livy, iii. 31 ; Dionys. , x. 31. The Aventine was said to have been previously common woodland. 11 Livy, iii. 9. 12 Livy, iii. 32. XX. - 93