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[12arg] That the tribunes of the commons have the right to arrest, but not to summon.

IN one of the letters of Ateius Capito we read 1 that Antistius Labeo was exceedingly learned in the laws and customs of the Roman people and in the civil law. “But,” he adds, “an excessive and mad love of freedom possessed the man, to such a degree that, although the deified Augustus was then emperor and was ruling the State, Labeo looked upon nothing as lawful and accepted nothing, unless he had found it ordered and sanctioned by the old Roman law.” He then goes on to relate the reply of this same Labeo, when he was summoned by the messenger of a tribune of the commons. He says: “When the tribunes of the commons had been appealed to by a woman against Labeo and had sent to him at [p. 443] the Gallianum 2 bidding him come and answer the woman's charge, he ordered the messenger to return and say to the tribunes that they had the right to summon neither him nor anyone else, since according to the usage of our forefathers the tribunes of the commons had the power of arrest, but not of summons; that they might therefore come and order his arrest, but they did not have the right to summon him when absent.”

Having read this in that letter of Capito's, I later found the same statement made more fully in the twenty-first book of Varro's Human Antiquities, and I have added Varro's own words on the subject: 3 “In a magistracy” says he, “some have the power of summons, others of arrest, others neither; summoning, for example, belongs to the consuls and others possessing the imperium 4 ; arrest, to the tribunes of the commons and the rest who are attended by a messenger; neither summoning nor arrest to the quaestors and others who have neither a lictor nor a messenger. Those who have the power of summons may also arrest, detail, and lead off to prison, all this whether those whom they summon are present or are sent for by their order. The tribunes of the commons have no power of summons, nevertheless many of them in ignorance have used that power, as if they were entitled to it; for some of them have ordered, not only private persons, but even a consul to be summoned before the rostra. I myself, when a triumvir, 5 on being summoned by Porcius, tribune of the commons, did not appear, following the authority of our leading men, but I held to the old law. Similarly, when I was a tribune, I ordered [p. 445] no one to be summoned, and required no one who was summoned by one of my colleagues to obey, unless he wished.”

I think that Labeo, being a private citizen at the time, 6 showed unjustified confidence in that law of which Marcus Varro has written, in not appearing when summoned by the tribunes. For how the mischief was it reasonable to refuse to obey those whom you admit to have the power of arrest? For one who can lawfully be arrested may also be taken to prison. But since we are inquiring why the tribunes, who had full power of coercion, did not have the right to summon ... 7 because the tribunes of the commons seem to have been elected in early times, not for administering justice, nor for taking cognizance of suits and complaints when the parties were absent, but for using their veto-power when there was immediate need, in order to prevent injustice from being done before their eyes; and for that reason the right of leaving the city at night was denied them, since their constant presence and personal oversight were needed to prevent acts of violence.

1 Fr. 19, Huschke: ii. p. 287, Bremer.

2 Probably Labeo's country place. He spent half the year in retirement (Dig. i. 2. 2.47), and praedia Galliana are mentioned in C.I.L. iii. 536, and ix. 1455, col. iii, lines 62—64.

3 Fr. 2, Mirsch.

4 The right of commanding an army conferred by the Lex Curiata de imperio on the dictator, consuls, magister equitum and praetors.

5 That is, one of the triumviri capitales, a minor office.

6 That is, he had not yet held a magisterial office.

7 There seems to be a lacuna in the text. Supply “we may assume that it was,” or something similar.

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