Montesquieu
 

XI.16 On legislative authority in the Roman republic

Under the decem­virs there were no rights to argue over, but when free­dom retur­ned, the jea­lou­sies re-emer­ged ; as long as the patri­cians retai­ned a few pri­vi­le­ges, the ple­beians took them away.

There would have been lit­tle harm if the ple­beians had been content with depri­ving the patri­cians of their pre­ro­ga­ti­ves, and if they had not offen­ded them in their very qua­lity as citi­zens. When the peo­ple were assem­bled by curiæ or by cen­tu­ries, they were com­po­sed of sena­tors, patri­cians, and ple­beians. In the dis­pu­tes, the ple­beians won the point1 that alone, and without the patri­cians and the senate, they could make laws which are cal­led ple­bis­ci­tes, and the comi­tia where they made them were cal­led comi­tia by tri­bes. Thus there were cases where the patri­cians2 had no share in the legis­la­tive autho­rity,3 and where they were sub­jec­ted to the legis­la­tive autho­rity of ano­ther body of the state. It was a deli­rium of free­dom. To esta­blish demo­cracy, the peo­ple shook the very prin­ci­ples of demo­cracy. It also see­med that such an exor­bi­tant autho­rity ought to have sup­pres­sed the role of the senate. But Rome had admi­ra­ble ins­ti­tu­tions. She had two above all : by one the legis­la­tive autho­rity of the peo­ple was regu­la­ted ; by the other it was limi­ted.

The cen­sors, and before them the consuls,4 for­med and crea­ted, in a man­ner of spea­king, the body of the peo­ple every five years ; they applied legis­la­tion to the very body that held the legis­la­tive autho­rity. “Tiberius Gracchus, cen­sor,” says Cicero, “trans­fer­red the enfran­chi­sed into the city’s tri­bes, not by the force of his elo­quence, but by a word and a ges­ture ; and had he not done this, we would no lon­ger have this repu­blic which today we barely sup­port.”5

Moreover, the senate had the power to take the repu­blic, in a man­ner of spea­king, out of the peo­ple’s hands by the crea­tion of a dic­ta­tor before whom the sove­reign bowed its head and the most popu­lar laws remai­ned silent.6

Dionysius of Halicarnassus, book XI, p. 725.

By sacred laws, the plebeians could make plebiscites, alone and without the patricians being admitted into their assembly (Dionysius of Halicarnassus, book VI, p. 410, and book VII, p. 430).

By the law made after the expulsion of the decemvirs, the patricians were subjected to plebiscites, although they could not have voted for them (Livy, book III, and Dionysius of Halicarnassus, book XI, p. 725), and this law was confirmed by that of dictator Publius Philo in the year of Rome 416 (Livy, book VIII).

In year 312 of Rome the consuls were still doing the cens, as can be seen in Dionysius of Halicarnassus, book XI.

[De oratore.]

Like those that allowed appealing the decrees of all the magistrates to the people.