decisions of patrician judges. Accordingly a law of appeal is reported to have been given by Valerius and Horatius.' The object of this law could not have been to confirm the right of appeal, which the patricians already possessed by virtue of one of the Valerian laws. For the restoration of the consulship after the decemvirate would have been no bonáfide restoration if it had not included that clause of the Valerian laws which limited the authority of the consuls, by giving to the patricians the right of appeal from their decisions to the people, i.e. the centuries. The new law of Valerius and Horatius, which is apparently identical with the old Valerian law of appeal, can therefore apply only to the plebeians. These were now allowed to share a right which the patricians had enjoyed from the beginning of the republic as members of the sovereign people. Nor was this new right anything but the application of the principle of constitutional law, which gave to the plebeians in the assembly of their tribes a share in the sovereignty of the Roman people. As this assembly was henceforth called upon to discharge some of the duties of legislation and the election of magistrates, it was likewise made to participate in the jurisdiction exercised by the Roman people. The comitia tributa constituted henceforth a tribunal qualified to guarantee the plebeian rights. No obstacles were therefore left which, before the decemvirate, had prevented the extension of the right of appeal to the plebs ;3 and the difference between plebeians and patricians which made them unequal in point of legal security ceased to exist. 2 CHAP. in the This improvement in the legal position of the plebs Changes might have been a motive for abolishing the tribuneship. character For, as we have seen, the principal function of the tribunes of the was to provide that legal protection which for the plebeians was to take the place of the right of appeal. The 1 Cicero, De Rep., ii. 31. Livy, iii. 55. 2 At least in all cases which were not capital. The latter belonged to the comitia of centuries. See the Author's article in the Rheinisches Museum, 1866, p. 168. tribunate. BOOK The tribuneship nevertheless remained, and the tribunes directed less attention to the protection of the civil rights of the plebeians than to the obtaining political equality between them and the patricians. When, after the lapse of about 100 years, this object was attained, the tribuneship was transformed into an organ of the government, by which the new nobility controlled the servants of the state, until at a still later period the greatly increased power of the tribunes provided the demagogues with the means of overthrowing the republican constitution. It has been supposed by modern historians' that, after the decemvirate, the patricians voted with the plebeians in the assembly of tribes. But for this supposition no argument can be brought forward that will bear examination. For although the patricians were included in the tribes for administrative purposes-as, for example, in assessments for the public taxes-and although, therefore, every patrician was a member of a particular tribe, it is not a necessary consequence that they were allowed to vote in the assembly of tribes with the plebeians. The English peers are also members of certain parishes, which form part of the parliamentary divisions of counties; but they have no vote in parliamentary elections. On the other hand, the wording of the laws themselves serves as a proof that the patricians were excluded from the assembly of tribes. The law of Valerius and Horatius of 449 B.C. declares that the resolutions of the tribes should be binding on the whole state, i.e. patricians as well as plebeians. This declaration would have been superfluous, if the patricians as well as the plebeians had been included in the assembly of tribes. Nor do we find a single instance of a patrician voting in the assembly of tribes; but it often happened that they tried to influence their friends and adherents who had votes.2 See Niebuhr, Röm. Gesch., ii. 355; English translation, ii. 320. Peter, Epochen, p. 33. Becker, Röm. Alt., ii. part i. 176. Schwegler, Röm. Gesch., i. 738; ii. 562. 2 The same inference must be made from the expressions of those writers X. of the The assemblies of the tribes therefore, although always CHAP. purely plebeian, assumed more and more the character of general assemblies of the people. This is the more easily Indirect explained, as the votes in the tribes were taken by heads, influence and the patricians, who were continually becoming fewer, patricians. could have no direct influence on the result of the voting. They found it more convenient to rely on that indirect influence which cannot be taken away from the rich and powerful by any electoral law. By this means the comitia of tribes became, in time, like the tribunes of the people, an instrument of government in the hands of the nobility, in the same manner as the English House of Commons has generally served the interests of the aristocracy of England.' The assemblies of tribes were now no longer convened Pleexclusively by plebeian magistrates-the tribunes and their assistants, the ædiles—but also by the higher curule magistrates, who were originally purely patrician. In such cases they had a resemblance to the old assemblies of Roman citizens, especially on account of the religious ceremonies with which they were opened by the patrician magistrates. Plebiscites, however-i.e. plebeian resolutions properly so called-were only those which the plebs made under the presidency of plebeian magistrates. biscites. ment of Simultaneously with the new order of things brought Establishabout by the second secession of the plebs (449 B.C.) an the quæsinnovation took place, which was the first step in the torship. who define the word plebiscitum, the legal term for the resolution of the plebeian comitia of the tribes. Gellius (Noct. Att., x. 20, 6) says: 'Plebiscitum est secundum Capitonem lex quam plebes, non populus accipit.' See also Festus, s. v. Populi, p. 233, ed. Müller; and Gellius, Noct. Att., xv. 27, 4. 1 Livy, iv. 51; viii. 23; xxvi. 2; xxx. 27; xxxiii. 27; xlv. 35. The House of Commons has several points of resemblance with the comitia tributa of Rome. Though the peers are excluded from it, the House of Commons practically governs England. It has, however, hitherto for the most part represented and carried out the policy of one or the other section of the English nobility. 2 Mommsen (Forschungen, p. 151) argues from this difference that there were two distinct forms of comitia tributa, first purely plebeian assemblies under the presidency of tribunes or ædiles, and secondly assemblies in which plebeians and patricians were mixed, under the presidency of other magistrates. He has, however, adduced no proof and no argument to make his view acceptable. BOOK II. direction taken by the subsequent constitutional reforms. 1 On the quæstorship see the Author's Researches, p. 75. CHAPTER XI. DEVELOPMENT OF THE RIGHTS OF THE PLEBEIANS. CHAP. viral XI. THE laws of the Twelve Tables form the first unmistakable landmark on the confines of legend and history. The alleged documents of the earlier period1 are all either The falsely interpreted or downright forgeries. Even the decemoldest annalists possessed no real documentary evidence legislation. from the time preceding the decemvirate. But the twelve tables were for a long time well preserved and universally known. At the same time we are approaching a period which made so deep an impression on the imagination of contemporaries that the memory of it was not obliterated when the first attempts were made at historical writing. of the decemvir Though the details of events cannot yet be sharply and Power distinctly recognised, the relations of the contending patricians parties are now represented, on the whole, with increasing after the accuracy. There was still no reconciliation or union ate. between patricians and plebeians. The patricians had still exclusive possession of the senate and of the high offices of state and of religion. The plebeians, as a compensation for this exclusion from the government, had obtained a complete internal organisation of their own body. They had a share in the sovereignty of the Roman people, and they had their own assemblies, their tribunes and ædiles, to a certain extent counterbalancing the patrician consuls and quæstors. The tribunes had gained admission to the senate, and no public question could be dis See pp. 16, 33, 44, note 4; and Schwegler, Röm. Gesch., i. 18 ff. VOL. I. P |