PLEBISCI´TUM
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.）
[
J.L.S.D]
