BOOK VI. Extent of tribunician prosecutions. virtue of their office they were best qualified to take the part of public prosecutors or of advocates of the state. It is true, the right of accusation belonged to every citizen, and particularly to every magistrate; but a private individual would rarely have enough authority to avail himself of this right, and the other magistrates being the colleagues or the subordinates of an accused offender were hardly qualified to act as prosecutors with the necessary energy or impartiality in cases of malversation arising in a public department with which they were themselves directly or indirectly connected. The tribunes, on the other hand, were free from all such considerations. They had not themselves to conduct any branch of the administration. They took no part in the executive business of the state, and being consequently free from responsibility themselves they could set to work without hesitation to enforce obedience to the laws in others. Thus originated their extensive activity as public prosecutors in state trials, not only before the assembly of plebeian tribes, but also in the comitia of the centuries. The former had the right of imposing fines; the latter alone possessed that of inflicting capital punishment. The tribunes were not empowered to convoke the comitia centuriata, but they could request a prætor to call a meeting for the purpose of a capital accusation.' The tribunes were at first restricted in their prosecutions to such offences committed by magistrates as threatened the liberties of the plebs. But when, as we have seen, they had ceased to be merely plebeian magistrates and had become magistrates of the whole community, the sphere of their control became more extensive, and they took cognisance of all sorts of offences of all magistrates without distinction, whether they affected the plebs in particular or the whole of the state.2 In 1 Liv. xxv. 3. 9; xliii. 16, 11. Gell. vi. 9, 9. Mommsen (Röm. Staatsrecht, i. p. 146) is of opinion that the prætor was in such cases obliged to comply with a tribune's request. 2 It has been pointed out above (vol. i. p. 151) that such accusations could this manner an essential condition for the existence and good working of the republican constitution became realised—namely, the responsibility of the magistrates which could now be fully enforced by means of the tribunes, in so far, at least, as was compatible with the tender indulgence extended by the ruling nobility to all their members. CHAP. VIII. tive func bunes. It was not only in the department of administration Legislaand jurisdiction that the tribunes discharged important tions of public duties. Their share and co-operation in the making the triof laws was of equal importance. Since the comitia tributa and the comitia centuriata had been equalised by the Hortensian laws (287 B.C.),' the legislation devolved chiefly upon the former, under the presidency of the tribunes. The ordinary course of proceedings was so arranged that the tribunes assembled the tribes at the request of the senate, and laid before them the projects of law previously discussed and agreed upon in the senate. The whole of the Roman public and private law, as far as it was established by formal legislation, emanated, after the passing of the Hortensian laws, from the comitia tributa in the manner just indicated. The comitia centuriata were entirely superseded, as far as acts of legislation were concerned, by the younger comitia, and in these it was not the consuls or other magistrates but the tribunes who almost exclusively proposed and recommended new laws. The same procedure was adopted with regard to the administrative decrees and regulations which were made by the people in the comitia tributa. The consent of the people might be obtained for every act of government, and thus the proceedings of the magistrates would be sancnot occur in the early period of the republic, before the decemviral legislation, and that all the stories of them reported by Livy (ii. 52; iii. 3i; iv. 40, 41, 42, 44; vii. 12) are inventions of the annalists, who unhesitatingly ascribed to the oldest tribunes the powers and prerogatives of later times. Mommsen, who in his Roman History (i. p. 275) had adopted all these stories, and had compared the proceedings of the early tribunes with a kind of lynching,' not justified by any legal right, has now altered his opinion (Röm. Staatsrecht, ii. 1, p. 289, An. 5), and rejects the stories in question as unhistorical. 1 Vol. i. p. 448. Control of administration by. tribes and tribunes. BOOK The tribunes and the senate. tioned. In point of fact these formal resolutions of the people only expressed more distinctly what was always considered indispensable-namely, that the will of the people should in all matters guide and determine the executive. In the ordinary business of the magistrates this might be tacitly taken for granted, and an appeal to the people was therefore only necessary in particularly difficult or important questions. In such cases the senate passed a preliminary decree, which was then laid before the assembly of tribes by the tribunes for their acceptance. Naturally the comitia could hardly refuse to give their formal sanction to a proposal made in this manner, and recommended by the tribunes-their own special representatives and by the senate, which, acting in accordance with the tribunes, must have enjoyed their confidence. The popular decision was probably in most cases not much more than an empty formality, but it guaranteed the executive officers from the consequences of all possible miscarriages which the course of proceeding in question might occasion. Whilst the tribunes thus carried out the will of the senate in the assembly of the people, they had of course found ways and means to procure for themselves a position in the senate contrasting strongly with the humble part they had at first played in relation to that body. They had no longer to listen to the debates at the door; but they had their seats and voice within that assembly, and even possessed the right of convoking it and putting questions to the vote. More than this, they could by their intercession prevent a senatorial decree from being duly passed. Their position had thus become one of rulers, and if they had in reality embodied the democracy as in the older times, the Roman people would have been very effectually represented in the ruling corporation. But in point of fact the tribunes themselves belonged to 1 No senatus consultum could be made without the consent of the tribunes. If they withheld their consent, it was merely a senatus auctoritas. Comp. Mommsen, Röm. Staatsrecht, ii. 1, p. 269. VIII. the nobility, and their office was but a step in the way to CHAP. the higher honours of the republic, which the ruling families shared among themselves. A tribune of to-day might in a few years become a prætor or consul, and the prospect of such a career would naturally prevent reckless opposition to the nobility. dence of bunes. But the understanding between the tribunes and the Indepennobility was not founded upon law. It had been formed the trigradually by constitutional practice. The possibility was not excluded that at any time one or several tribunes might take up an independent position and oppose the senate. This rarely occurred while the rule of the senate was firmly established and maintained. Thus, for instance, the tribune Quintus Bæbius (200 B.C.) contented himself with speaking in public meetings against the declaration of war decided on by the nobility, which, in consequence of the prejudice he had raised against it among the people, was at first rejected in the comitia. Had the tribune wished to assert his right of intercession, the proposal of the consul would not have been put to the vote at all. He contented himself with a kind of modest protest, but dropped even this when the senate resolutely insisted upon the declaration of war; and when the consul Sulpicius convoked the people a second time for the purpose of voting, the resolution was passed.' But a radical opposition, based on difference of political principles, was by no means impossible; and if it was resolved upon, as, for instance, by C. Flaminius,' the sharp weapons with which the tribuneship was armed from the beginning proved irresistible even to the nobility. If a tribune wished to recommend a line of policy or a law to the people in opposition to the will of the majority of the senators, the senate had no means at its disposal to cross him, except the inter 1 Livy, xxxi. 6, 5, gives a very interesting description of the scene which occurred in the senate on this occasion: Egre eam rem passi patres, laceratusque probris in senatu tribunus plebis. It appears that the opposition of Bæbius to the policy of the senate was at that time an unheard-of novelty; that he had not courage or support enough to persevere in it; and that he easily gave way. 2 Vol. ii. p. 126. BOOK VI. Abuse of tribunician power. cession of another tribune. If this could not be obtained the nobility were powerless. Thus it happened that the agrarian law of C. Flaminius was passed as a kind of protest against the domination of the senate, and it was a most alarming sign of a change from the established order of things to democratic rule. In the same way the Claudian law was passed, which forbade the senators to carry on trade; and in like manner the Gracchi at a later period were able to pave the way for the revolution. Thus the nobility, satisfied with actual rule, were punished for not restricting the authority of the tribunes by law. When Sulla undertook to do this, it was too late. 1 It is but natural that a power like that of the tribunes. should be frequently abused. How would it have been possible to find year after year ten men wise enough to use illdefined authority of so vast extent with moderation? The personal inviolability of the tribunes combined with actual irresponsibility made all other public functionaries, to a certain extent, subservient to them. Weak minds must have been intoxicated by such exalted prerogatives. Some were carried away to freaks of presumption which seemed to betray actual madness. Thus, in the year 131 B.C., the tribune Atinius Labeo seized the censor Quintus Metellus in the street, and, in revenge for having been turned out of the senate by him, was about to throw him at once from the Tarpeian rock, an act of violence prevented only by the intercession of another tribune. The power of the tribunes appeared less outrageous, though still rather arbitrary, in their right not only of forbidding the supreme magistrates to celebrate triumphs, to convoke popular assemblies, to consult the auspicia, nay, to perform any official business whatever, but of imposing fines upon them at pleasure, of confiscating their property, and even of arresting them.3 If such forcible measures were re 1 Vcl. ii. p. 196. 2 Liv. epit. 59. Plin. Hist. Nat. vii. 44. Liv. epit. 48. Cic. De Leg. iii. 9, 20. Plut. Mar. 4. Valer. Max. ix. 5, 2. Victor, 66. Flor. iii. 17. Cic. Ad Att. ii. 1, 8. Dio C. xxxvii. 50. Cic. In |