VIII. elected in the comitia of curies; and Cicero,' who is not CHAP. always a trustworthy witness on Roman antiquities,2 agrees with him in this statement. modern writers. Modern historians have ventured to question this Theories of account, especially on the ground that the patrician comitia of curies would hardly have been suitable to choose the representatives of the plebeians, whose special duty it was to act as a check on the unfairness of the patrician magistrates. In truth, this view can be held by those only who accept the theory of the ancient writers, that the comitia of curiæ in the regal period were of a democratic nature, and included the plebeians. Yet, even this theory does not remove all doubts. Above all things, we may naturally ask how it happened that this assembly of the curies, which, since the establishment of the republic, was superseded in all legislative and elective functions by the assembly of centuries, was revived for the purpose of serving for a newly established office like that of the tribunes.3 After duly weighing all the arguments that can be brought forward in favour of the different modes of electing the first tribunes, we come to the conclusion that the plebeians, who before this period had no other assemblies than those of their tribes for the election of their own plebeian officers, made use of the same comitia tributa for electing the tribunes, who were in all probability their old officers invested with new rights, and now for the first time formally recognised by the patricians, as representatives and patrons of the plebs. The assemblies of the local tribes thus attained an importance which they had Cicero, Pro Cornel., fr. 23. 2 He says, in the same passage, that the number of tribunes was ten from the first establishment of the office downwards, but he is quite alone in this statement. • Mommsen modifies this theory by the hypothesis that the plebeians had curiatic assemblies of their own for the purpose of electing the tribunes. This hypothesis is unsupported by any plausible reasons or any evidence. Equally improbable is the election of tribunes in plebeian comitia of centuries or by co-optation.-Schwegler, Röm. Gesch., ii. 537 ff. Antiquity buneship. of the tri BOOK The Pub 471 B.C. never had before, and it was most natural that the patricians, who, according to their places of residence, were, like the plebeians, included in the local tribes, laid claim to have a share in the choice of the tribunes. If the plebeians had agreed to this, the tribuneship of lilian law. the people would have changed its character altogether. Under the influence of the patricians it would not have remained the weapon of offence and defence of the plebeians. It would have become a common magistracy of all citizens of Rome, and would not have been a wedge driven in between the two principal elements of the Roman people, destined to keep them distinct and at enmity one with another. The patricians often made the attempt to amalgamate these two elements. Whether they themselves frustrated their own object by having the interest of their class more at heart than the common weal, we do not know. But this is possible, and even probable, and they were therefore most to blame for the continuance of a schism which their cruelty and oppression had called forth. The circumstances which, in 471 B.C., led to the passing of the Publilian law, seem to indicate that even at that time the attempt was made by the patricians to change the original character of the tribuneship of the people, and to open it to the patrician class. The patricians intruded themselves in the assembly of the plebeians, surely not for the purpose of making a disturbance, as it is represented, but to enforce a contested right, by which they claimed to take part in the comitia of tribes. Their claim affected the organisation of the comitia materially, and it was of the greatest importance to decide, once for all, how these should be constituted, and what privileges they should have. This question was decided by the Publilian law, which excluded the patricians from the comitia tributa,3 and specified the privileges of these comitia, now admitted to be purely plebeian. To these Livy, ii. 60: 'Plus dignitatis comitiis ipsis detractum est patribus ex concilio summovendis quam virium aut plebi additum aut demtum patribus.' VIII. privileges belonged the right of discussing all questions CHAP. affecting not only the plebeian order but the community at large, and the right of electing the plebeian magistrates, including, of course, the tribunes of the people. The Publilian law was, therefore, not so much a further acquisition of the plebeians, as a legal interpretation of the rights which belonged to them in consequence of the sacred laws. These were the right of meeting together unmolested in separate purely plebeian comitia, the right of freely and independently electing their representatives, the right of discussing and settling their own affairs, and in certain matters of passing resolutions which affected the whole community. These resolutions were of course not binding on the state, they had more the character of petitions than enactments, but still they were the formal expression of the will of a great majority of the Roman people, and as such they could not easily be set aside or ignored by the patrician government. It was natural that in a short time a custom should spring up regulating the manner in which such resolutions were to be laid before the senate. Once introduced into the senate, the resolutions of the tribes were launched on the road which all the laws of the state had to pass, and so it was possible that, without any further legal privileges, the tribunes of the people participated in the sovereign right of legislation through the assembly of tribes. tilian The first use of this right was made by the plebs, under The Terenthe direction of their tribunes, for the purpose of passing laws. the Terentilian rogations. BOOK Plebeian of law. CHAPTER IX. THE DECEMVIRS AND THE LAWS OF THE TWELVE TABLES. 451 B.C. By the treaty of peace concluded by the two orders of citizens on the Sacred Hill, the demand of the plebeians not to be subject to the caprice of the patrician governignorance ment, but to the existing laws, was granted. As a guarantee of this legal position they received the consecrated magistracy of the tribunes. But when the tribunes were called upon to put their veto upon any unfair or illegal decision of the patrician magistrates, they found themselves insufficiently acquainted with the law, and it was no doubt easy for the patricians, by appealing to a law known and accessible only to themselves, to frustrate the intercession of the plebeian tribunes. Foundation of patrician The knowledge of law was guarded as a sacred mystery from the profane eye of the plebeians. It was cultivated in authority. the patrician families as a kind of secret science, and, like the precepts of a priesthood jealous and ambitious of power, it was strictly preserved from being written down and published.' This exclusive possession of the principles and formula of law was one of the greatest supports of patrician authority, and kept the ignorant masses in a state of dependence from which even the protection of the tribunes was not able to deliver them. Need of It could not, therefore, be long after the establishment 1 A striking example of the jealousy with which the ruling class kept the laws from the knowledge of the subject population is contained in the Brahminical law, which ordains that if a Sudra even listened to the reading of the sacred books, burning oil was to be poured into his ears; if, however, he committed them to memory, he was to be killed.'-Buckle, Hist. of Civilisation, i. 71. IX. of the tribuneship before the plebeians felt the necessity CHAP. of putting an end to the exclusive possession of the laws. which the patricians enjoyed, and to make them the com- written mon property of the whole nation. This could only be laws. done by writing them down and making them public. A proposal was accordingly made in the assembly of the tribes by the tribune C. Terentilius Arsa (462 B.C.) to appoint a commission for the purpose of committing to writing the whole of the laws. The proposal was by no means revolutionary; it was, on the contrary, conservative. A reform of the state,' like that which Solon was commissioned to effect in Athens, was not contemplated by the movers of the law. The proposal did not at first affect the constitution at all, but only the civil law. Nor was it intended that this should be remodelled after new principles. Nothing was proposed but a codification and publication of the law which was then in force. work is, indeed, not easy, even under the most favourable circumstances, and it is a convincing proof of the spirit and strength of will of the Roman plebs that they so early insisted on carrying a measure not less difficult than salutary. Such a of the patricians. It is not wonderful that the patricians opposed with Resistance all their strength a measure which would wrest a most powerful weapon out of their hands. As yet the plebs had no share in the regular course of legislation. Their representatives, the tribunes, had neither the right to summon the senate, nor to lay before it proposals respecting new laws. In all probability they were not even entitled to enter the hall of the senate, and had to be satisfied with the modest privilege of listening outside to the proceedings. They could indeed speak to their fellowplebeians in public meetings of the necessity of the proposed reform, and so they could exercise a pressure on the 1 Livy (iii. 9, 24) dwells especially on the fact that the reform was intended to limit the consular power. This, however, does not imply that the nature of the consular office was to be modified. All that was intended or expected was to prevent abuse of power. For the origin of the story of the commissioners sent to them to study the Greek law, see p. 79, and below, p. 252, |