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PLEBISCI´TUM is the name for the decrees passed by the corporation of the plebs in answer to the rogatio of one of their own magistrates. When in later times these decrees acquired the force of law, the term lex was likewise applied to them: so we have repeatedly in the Agrarian Law of B.C. 111 (C. I. L. i. p. 175), “ex lege plebive scito quod C. Sempronius Ti. f. tr. pl. rog.” But, though sanctioned by official usage, this identification was always recognised as not strictly correct: “ne leges quidem proprie sed plebiscita appellantur, quae tribunis plebis ferentibus accepta sunt” (Laelius Felix in Aul. Gell. xv. 27).

The plebs as a self-governing, corporation asserted from the first the power to pass decrees binding on all its members: “evenit ut plebs in discordiam cum patribus perveniret et secederet sibique jura constitueret, quae jura plebiscita vocantur” (Pomponius in Dig. 1, 2, 2, 8). The most important of these were the loges sacratae by which the plebeians affirmed the sacrosanctitas of their officers, and bound themselves every man to avenge instantly any outrage directed against them. Another clause of the same shows that the plebeians claimed from the first a recognition from the whole state that obedience to these rules must override the ordinary course of law: “Nam lege tribunicia prima cavetur ‘Si quis eum qui eo plebiscite sacer sit, occiderit, parricida ne sit.’ ” (Festus, p. 318, s. v. Sacer.) These ordinances were held to have binding force down to the last days of the Republic, for Cicero (post Red. in Sen. 13, 33) complains that Clodius and he were not fighting on equal terms: “tribuniciique sanguinis ultores esse praesentes, meae mortis poenas judicio et posteritati reservari.” The plebeians also claimed to be judges in their own quarrels and to direct the vengeance of their order against its enemies. The story of Coriolanus represents the tribunes as attempting at first to try him for his life before the plebeian assembly, and there are several instances later on where consuls who have opposed its interests are fined by the plebs after they go out of office (Liv. 2.52, 54, 61; 5.12). All such matters may be held to come within the somewhat elastic category of self-regarding acts, and in the earliest times the plebs seems not to have gone beyond this, and never to have claimed the right to legislate in matters relating to the whole nation.

The history of the later Roman republic presents us with a widely different picture. We find that by the time of the Punic wars the whole power of sovereignty has been delegated to the plebeian assembly. Side by side with the old sovereign, the populus, a new sovereign, the plebs, exercises in its exclusive concilium, under its own magistrates and with its own forms of procedure, precisely the same powers of legislation as the first: “et ite factum est ut inter plebiscita et legem species constituendi interesset, potestas autem eadem esset” (Pomponius, ib.). All the legal writers, our best authorities on such a point, ascribe the delegation of these enormous powers to a law of the dictator Hortensius, B.C. 287, “pro legibus placuit et ea observari lege Hortensia” (Pomponius, ib.), and “lex Hortensia lata est, qua cautum est ut plebiscita universum populum teneret, itaque eo modo legibus exaequatu sunt” (Gaius, Inst. 1.3).

The difficulty is that Livy gives us, beside the Hortensian law, two previous enactments to precisely the same effect, “ut plebiscita omnes Quirites tenerent,” or “ut quod tributim plebs jussisset populum teneret” (Liv. 3.55, 8.12). These are attributed to the consuls Valerius and Horatius, B.C. 449, and to the dictator Publilius Philo, B.C. 339.

Mommsen (Röm. Forsch. vol. i. p. 211) has sufficiently disposed of the theory that the decrees of the plebs were equal to those of the populus from the consulship of Valerius and Horatius onwards, and that the Lex Publilia and the Lex Hortensia were mere re-enactments of the ordinance of B.C. 449. Mommsen's own conjecture is that the laws of B.C. 449 and of B.C. 339 should be struck out of the history or plebiscita altogether: he thinks that they really referred to the “comitia populi tributa,” and were applied to the plebs by a mere blunder of Livy [see COMITIA]. This hypothesis seems very hazardous. Such a blunder on Livy's part is not indeed impossible, but there is not a particle of evidence that he was actually guilty of it.

Apart from the respect due to the ancient authority, we should expect from the nature of the case to find successive enactments on this subject, and to see some share in legislation for the community allowed to the plebs under checks and conditions, before it attained the unlimited power conferred by the Lex Hortensia. This opinion is confirmed by a glance at the history. We find numerous laws called by the names of the tribunes who proposed them (which they could only do of course in a plebeian assembly) which nevertheless relate to matters obviously of national concern. Such, to take a single instance, was the proposal to remove the habitation of the Roman people to Veil. Most of these laws fall in the century between the Valerio-Horatian and the Publilian Law (B.C. 449-339); but two--the Terentilian proposal de legibus conscribendis, which led to the codifying of the Roman law in the Twelve Tables, and the Lex Icilia de Aventino publicando--are previous to the earliest of our three epochs. The protracted contests over these laws seem, however, to point to some power possessed by the patricians of checking and limiting the force of the decrees which originated with the tribunes.

The “answer to the riddle” is to be found, according to Mommsen (Röm. Forsch. 1.211), in the words in which Appian describes Sulla's law about the powers of the tribunes (Bell. Civ. 1.59): εἰσηγοῦντο μηδὲν ἔτι ἀπροβούλευτον ἐς τὸν δῆμον ἐσφέρεσθαι, νενομισμένον μὲν οὕτω καὶ πάλαι παραλελυμένον δ᾽ ἐκ πολλοῦ. He takes this to mean that, in forbidding for the future [p. 2.438]any measures to be brought before the plebs without consent of the senate, Sulla revived a definite law which had existed in early times; that is to say, before the dictatorship of Hortensius. It is probable, “says Mommsen (Staatsr. iii. p. 157), that (we know not when, but some time previous to the law of the Twelve Tables) it was enacted by a decree of the populus analogous to that afterwards carried by Hortensius, that a bill brought before the plebs with the assent of the senate, if accepted by the former, bound the whole body of the citizens just as if the populus had commanded it in its comitia.” This view is accepted by Soltau, and with some modifications by Willems and Borgeaud. It seems, however, to rest on a very slight foundation. The historical reference in the passage of Appian (νενομισμένον μὲν οὕτω καὶ πάλαι, &c.) applies more naturally, not to the days of the early Republic, but to the century of the Punic wars. During this period the senate had asserted, not by positive enactments, but by indirect means, a customary and constitutional right to be consulted before any magistrate proposed a measure for the acceptance of the popular assemblies. For generations this claim was enforced by means of the tribunician veto; but Sulla had been taught by the record of Gracchus, of Saturninus, and of Sulpicius, that the employment of the veto was an insufficient sanction. It had repeatedly failed to guard this most necessary prerogative of the senate against the attacks of a popular tribune. Sulla therefore naturally wished to establish the constitutional claim of the senate on the firmer basis of definite enactment. Appian's reference to an ancient precedent being thus abundantly justified by the usage of which we have ample independent evidence, it seems wrong to invent for its explanation a supposed legal right otherwise unknown to us. The silence of Cicero in the passage of the de Legibus (3.11, 26) in which he criticises the tribunician power, is a strong negative argument against the existence of any such legal right of the senate over plebiscita.

Nor does the assumption of the modern historians seem to be necessary in order to explain the historical development of plebeian legislation. The known powers of the sovereign populus, of its officers the consuls, and of their advisers the senate, supply sufficient material for a probable answer to the question how the legislative capacity of the plebs may have been gradually established.

A record of the process of tribunician legislation in early times has fortunately been preserved to us in a single case, in which Dionysius has followed the account derived by him from an ancient document. The case is that of the Lex Icilia de Aventino publicando (B.C. 456), which was preserved on a brazen column in the temple of Diana on the Aventine. “Icilius,” says Dionysius (10.31), “approached ile consuls then in office and the senate, and requested them to pass the preliminary decree for the law that he proposed, and to bring it before the people.” By threatening to arrest the consuls he compelled them to assemble the senate, and Icilius addressed it on behalf of his bill. Finally the senate consented; ἔδοξε διδόναι τῷ δήμῳ τὸν τόπον (Dionys. A. R. 10.32). Then, after auspices and sacrifices, “the law was passed by the Comitia Centuriata which were convened by the consuls.” Where, then, does the vote of the plebs come in? It is not mentioned by Dionysius, nor is there any place for it in the proceedings after Icilius has approached the consuls. It seems to follow that it must be placed at the very beginning before the detail of Dionysius' story begins. Icilius must have been armed already with the petition of the plebs when he demanded to plead their cause before the senate.

In this order of proceedings, the formal legislative power lies solely with the populus Romanus. The vote of the corporation of the plebs is not then in early times a legislative act at all. It is merely a strong and formal petition, an appeal to the sovereign assembly. to grant their request. But this sovereign assembly can be convened and the question put to it only by a consul. The consul may refuse to put any such bill to the vote, or even so much as to entertain the question as an open one, by taking the opinion of his authorised advisers, .the senate, as to how he ought to act. Thus the consultation of the senate, not as a legally necessary preliminary, but as a means of stimulating the official action of the consul, becomes a point on which the reformers are bound to insist; and to bring it about the tribunes must use their powers of compulsion over the consul.

After the matter has been thus. forced on the consideration of the senate, an adverse vote in that body would of course justify the consuls in their resistance, and the delay might be prolonged until the plebeians were reduced to their last resort, the threat of secession. In practice the senate commonly yields before this crisis is reached. The petition of the plebs is backed by the recommendation of the senate; and the consuls, though under no legal obligation, cannot, without grave responsibility, now refuse to put the question to the populus. By this time the controversy has been long ago threshed out. All the powers which the nobles could bring to bear against the carrying of the proposal in a popular assembly, whether by tribunician intercession, or by alarms of war, or by violent interference, or by their own influence with the voters (Liv. 5.30), would naturally have been exhausted at an earlier stage of the proceeding while the proposal was still before the plebeian assembly. No instance is recorded of the sovereign populus negativing a bill so brought before it.

The chief objection to our accepting this as the order of proceeding is that Livy seems sometimes (cf. 4.1, 6 with 6, 4) to represent the conflict over the tribunician bills, the negotiations with the senate, and the compromises frequently arrived at, as all matters which occurred before the voting of the plebs. It may be replied that in Liv. 5.30 we have a proposal, which had certainly not received the sanction of the senate, actually brought to the vote of the plebs and rejected by them; in another case (4.49) the refusal of the senate to approve a measure gains effect only by means of the intercessio of a tribune. It may also be urged that Dionysius repeatedly speaks of the efforts made to induce the senate προβουλεῦσαι τὸν όμον (10.26, 48, 52; 11.54, 59, 60), and [p. 2.439]that he cannot be understood to mean that such a προβούλευμα was to be followed by a vote in the plebeian assembly, because he has clearly laid down (9.41) that no προβούλευμα was necessary for that assembly as organised by Publilius Volero in B.C. 471. The truer answer, however, probably is that neither Livy nor Dionysius really intend to commit themselves at all definitely regarding the legal procedure. They seem rather to desire to reproduce as far as possible in their picture of these early contests a copy of the dissensions between optimates and populares which vexed the later Republic. This tendency may have led them somewhat to mix up the order of events, and so to leave it doubtful whether the vote of the plebs was, or was not, in the earlier time final and conclusive.

If the process of legislation before the age of the decemvirs were really such as has been sketched in the preceding paragraphs, it is not difficult to see that it might be assisted by a series of laws which rendered one or other of its stages more easy. Any of these laws might be roughly described as giving legislative power to the plebs. What precise obstacles were removed by each law can only be conjecturally determined. We may perhaps say that the mere right of petitioning required no legal sanction, and that the powers of the tribunate were sufficient (as the story of Icilius makes them) to force the consuls to advise with the senate about the petition. Possibly the law of Valerius and Horatius formally recognised this position, and laid down that the consul must so consult the senate, or it may even have forbidden him arbitrarily to disregard a recommendation of the senate (should such be obtained) that he should put the question to the populus. It is a reasonable conjecture likewise that the law of Publilius Philo (B.C. 339) may have struck out the intervening consultation of the senate, and may have required the consul to bring the petition of the plebs at once before the populus. If such were the tenor of the Publilian law, it would be only a very slight inaccuracy to describe it as conferring legislative power on the plebs. The majority in the two assemblies being substantially the same persons, the reference to the one of a proposal already affirmed by the other would be little more than the repetition of a foregone conclusion. The Hortensian law, which formally transferred the sovereign power to the plebs, would thus be a change greater de jure than de facto. In formal law it was a mighty revolution. It was natural and even necessary that the jurists should refer to this law as the source of the legislative power of the plebs. On the other hand, historians and politicians might with equal reason refer the change to the time when it practically took place--to the time, that is, when a vote of the plebs really decided the fate of a measure beyond the possibility of effective appeal. This power, if the theory here put forward be correct, was placed within the reach of the plebeians by the law of Valerius and Horatius, and was fully secured to them by the law of Publilius Philo.

(The view of plebiscita maintained in this article is more fully explained in the English Historical Review, Nos. 2 and 19. The question is fully discussed in Mommsen's Römische Forschungen, vol. i., and in the Staatsrecht, vol. iii. It has been the subject of special treatises by Soltau, Gültigkeit der Plebiscite, and by Borgeaud, Histoire du Plebiscite.


hide References (7 total)
  • Cross-references from this page (7):
    • Livy, The History of Rome, Book 5, 12
    • Livy, The History of Rome, Book 5, 30
    • Livy, The History of Rome, Book 8, 12
    • Livy, The History of Rome, Book 2, 52
    • Livy, The History of Rome, Book 2, 54
    • Livy, The History of Rome, Book 2, 61
    • Livy, The History of Rome, Book 3, 55
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