I^. EMPLOYMENT OF THE PLEBISCITE [3^2 



patricians," or, as Muirhead^ renders it: "A lex is a law 

 enacted and established by the whole body of the people ; a 

 plebiscite, one enacted and established by its plebeian mem- 

 bers. . . ."« 



On the other hand, Mommsen and his school hold that 

 Rome had, since the time of the decemviri, two kinds of 

 popular assemblies, the coinitia tributa, convened by the 

 order of the patrician magistrates and comprising all Roman 

 citizens, and the concilia plcbis, called to meet by the tribuni 

 plcbis or the acdiles.^ Borgeaud, who adheres to this view, 

 explains the difference, or rather the confusion, on this 

 subject by the fact that the concilia plcbis are often referred 

 to as the comitia tributa, but only by the historians" and 

 in the popular language, by virtue and in consequence of 

 their political importance, but not in accordance with their 

 juridical nature." However, uncertain as this matter may 

 be, accepting the definition of the Roman jurists, we can 

 safely state that the plebiscitum was a decree passed in 

 public meeting by the Roman plebeians only. 



The Roman plebiscitum then was the result of the attempt 

 made by the Roman plebs to secure for itself a voice in 

 public matters in opposition to the ruling patricians repre- 

 sented by the Senate with its exercise of the auctoritas 

 patrum. It served at the same time as the means for making 

 this voice heard more often and more audibly until finally 

 the Senate, weary of being compelled — by force of popular 

 threats^' — to yield to these revolutionary plebiscites, de- 



' Gaius, The Institutes of Gaius and Rules of Ulpian, with a 

 translation by James Muirhead, Edinburgh, 1880, p. 2. 



® The same distinction is made by Capito and Laelius Felix, cited 

 in Gellius, Noctium Atticarum libri XX, bk. X, 20, 6; bk. XV, 27, 

 15-25; in the Institutiones Justiniani, I, 2, 4; and elsewhere. Festus 

 defines the Scita plebci as " ea quae pleps suo suffragio sine patribus 

 iussit, plebeio magistratu rogante " (Sexti Pompci Festi De ver- 

 borum significatu quae supersunt, ed. W. M. Lindsay, Lipsiae, 1913, 

 Scita plebci). 



" Borgeaud, pp. 59-61 ; Laelius Felix in Gellius, bk. XV, 27, 15-25. 



'" Livius, Ab urbe condita, bk. II, 58, i ; Cicero, Epist. ad Atticum, 

 IV. 3. 



^^ Borgeaud, p. 62. 



12 Ibid., pp. 125-128. 



