§ 1. The Magistracy of the Tribunes of the Plebs was sacrosanct. They possessed the right to convene the Senate and to impede whatever they judged opposed to the interests of the plebs; for their principal power consisted in opposing: they interposed their veto and prohibited. Then, in the course of time, the strength of the Tribunes increased so greatly through continual contentions that they ordered Consuls to be led to prison and often cast the fatherland into the utmost danger. For this reason Augustus and the other Emperors retained the tribunician power continuously,
so that they numbered the years of their rule from each renewal of the tribunician power. Although great disadvantages and continual dissensions arose from this contest between the Tribunes and the nobility, the persistent devotion of the people nevertheless always retained and defended them. Indeed, the imperial laws also established Defenders in the cities; and even now they are found in most free cities, except where the power of the patricians has subjected everything to itself. The office of the Defenders lasted five years, as did that of the Censors among the Romans.
§ 2. Their power was various. First, they judged matters of lesser importance and cases among persons of slender means, up to fifty solidi. Thus the Emperors Valentinian and Valens to Seneca the Defender: “If anyone among those of slender means believes that he ought to bring a complaint concerning rather small matters, in lesser cases—that is, up to the sum of fifty solidi—he shall prepare judicial acts; namely, so that if at any time anyone has claimed either a just debt, or a slave who had escaped by flight, or that which he had paid beyond his assessment, or anything else of this kind, you shall restore it by your adjudication. But you shall bring the other matters, which appear worthy of the magnitude of the forum, to the notice of the ordinary Governor.”
§ 3. They were chosen not from the order of Decurions but from the citizens. The same Emperors to Probus: “The Defenders of the cities shall be appointed to this office not from the body of Decurions or Cohortales, but from other suitable persons.” Rightly indeed; for the Decurions in the cities were like the Patricians at Rome, against whom the remaining plebeian citizens sought defense. Therefore Defenders ought not to be supplied from the body of their adversaries, but from those whose interest it was that the interests of the plebs be preserved and defended. Illustrious and Spectable men who had discharged great dignities could nevertheless undertake the honor, provided that they were not Decurions.
§ 4. No one could evade that honor, neither Illustrious men nor soldiers. Novel 15: “Meanwhile this must first be known: that no man is to have license to decline appointment as Defender, but all the nobler inhabitants of the cities shall in turn fulfill this ministry for them. For we have learned both that this prevailed in earlier times and that it was practiced in the state. We permit no one to decline this, not even if he is honored with the dignity of the Most Magnificent Illustrious men, nor if he possesses an honorable military office, nor if he produces his privilege from divine rescripts, nor if pragmatic sanctions have been conferred; rather, the inhabitants of the city who possess some means shall fulfill it in rotation, and when the rotation is completed, they shall return again to the charge and minister the aforesaid care to the city—so that in each city the Defender may appear to be a Judge rather than a Defender. He is to be appointed by a decree made under oath by all the landowners residing in that city, but not those living in this City; and he is to take an oath that he will conduct all things according to law and right and for the common good of all. He is to be confirmed, as now, by a precept of our Most Glorious Prefects; he is to administer alone for a biennium; and the Most Distinguished Judge of the province is not to have license to remove him from his charge. But if they appear to do anything improperly, he shall report it to the Most Glorious Prefects, so that deprivation of the charge may come to him from the same source from which it is also given. Neither the Governor nor the Defenders themselves shall have any license to create deputies of the Defenders; rather, we forbid this also to all of them in every manner. Nor shall the Most Distinguished Judges dispatch their own deputies through the cities, but only the Defenders themselves, whom we wish to fulfill the office of Judges in the cities; and they themselves shall employ diligence in all the cities in which they are.”
§ 5. The laws judged the defense of persons of slender means to be of such importance. Thus Valentinian, Valens, and Gratian, Emperors, to the Senate: “It has been provided by a useful measure that innocent and peaceable country people should enjoy special patronage through the benefit of a local Defender, and should have the ability to litigate monetary cases before him.” They stood in the place of parents to the plebs. Gratian, Valentinian, and Theodosius, Emperors: “Among the Defenders of all the provinces this shall be the form of administration, and its time shall be measured by the span of five years: namely, that above all you show yourself as a parent to the plebs; that you do not permit country people and city dwellers to be afflicted by tax assessments; that you meet the insolence of officials and the forwardness of Judges—while preserving the reverence due to modesty—having free ability to approach the Judge whenever you wish; that you exclude the losses occasioned by demands for excessive payment, or the spoils taken from those whom you ought to protect in the place of children; and that you do not permit anything beyond the customary assessment to be exacted from those whom it is certain cannot be restored without such a remedy.” Thus this single remedy was established for the poor against so many Quaestors, Exactors, and Agents in Affairs. They possessed the right of arrest. Novel 5, chapter 6: “For this is necessary to defense, for which reason the Tribunes of the Plebs also obtained it.” Indeed, they had charge of discipline, as Valentinian, Theodosius, and Arcadius, Emperors, state: “Throughout all regions in which the savage frenzy of brigands, conscious of its own danger, is raging, let all the most approved and most rigorous Defenders of discipline be present and preside over daily proceedings. Let them not permit crimes to grow strong with impunity; let them remove patronages which, by imparting favor to the accused and assistance to criminals, have caused crimes to ripen.” They send persons apprehended to the Judge. Arcadius, Honorius, and Theodosius, Emperors: “The Defenders of cities shall immediately send under suitable guard to the Judge persons accused who have been offered to them after being apprehended in the very act of brigandage or a violent encounter, or after the commission of homicide, rape, abduction, or adultery, and who have been delivered to them by public acts, with the crime expressly stated and together with those by whom they were accused.”
§ 6. Yet, lest they rage beyond their office in the manner of the Tribunes, provision was made: “Let the Defenders, insolently claiming nothing for themselves and claiming nothing undue, discharge only the office signified by their name. Let them impose no fines and conduct no more severe examinations. Let them protect the plebs or the Decurions from all insolence and rashness of wicked men, so that they do not cease to be only that which they are called.” They applied themselves especially against the frauds of tax-receivers and the plunder of officials. Honorius and Theodosius: “We command that Defenders be appointed in such a manner that, initiated into the sacred mysteries of the orthodox religion, they are established by a decree of the Most Reverend Bishops, as well as of the clergy, Honored men, landowners, and Curials. Their appointment is to be reported to the Most Illustrious Praetorian authority, so that their authority may be made firm by letters from that Magnificent See. But if the Defenders learn that anything is being done by any person contrary to public discipline and to the injury of landowners, they shall have power to report it to the Illustrious and Magnificent men, the Praetorian Prefects; to the Illustrious men, the Masters of Horse and Foot; to the Master of Offices; and to the Counts both of the Sacred Largesses and of the Private Estates.”
§ 7. But because it sometimes happened that they acted treacherously and became enemies instead of Defenders, whether through avarice, fear of the more powerful, or affinity with them, suitable men were sought with great care—to such a degree that they were appointed even by the votes of the Bishops. Thus the same Emperors decreed: “We command that through the care and diligence of the Defenders landowners are by no means to be burdened by tax-receivers with larger measures and weights; rather, those detected shall be sent to trial together with the proof of the fraud committed.
“We also permit the following to be done: if our provincials wish to attest their injuries or losses and the Defenders deny them the preparation of acts, they shall be granted license to post, in the less-frequented places of the cities and at the time when the attestation ought to have been made, a written petition of their own complaint; to summon the scribes, record-keepers, and the other public offices which must be given notice through that petition; and to thrust it, despite the unwillingness of the persons named above, among the preparation of the acts. Their testimony may be investigated by examination, and when it has been proved, judicial rigor shall be exercised against those who are established to have denied the requested preparation of the proceedings.”
§ 8. Finally, lest they disturb the state in the manner of the Tribunes, their offices were so harassed that at length the power ceased, and, after the poor had been afflicted, the state perished. Defenders of ecclesiastical affairs were also established, whom they called ἐκδίκους and Syndics, and their authority today is great in both State and Church. Their office is ἐκ πάσης τῆς ἀδικίας τὰ πράγματα ἐκδικήσαι ἐλεύθερα, to vindicate affairs and causes as free from every injustice. Now the office of Syndic is perpetual; formerly it was a περιοδικὸν πολίτευμα, a Magistracy returning in rotation.
§ 9. The destruction of all states has been more fateful from no other thing than from this Magistracy of Defenders. In the beginning peoples created Kings lest the weaker be oppressed by the stronger, and equipped them with great power and honor. After the Kings turned their benefits to the people’s destruction, the people sought safeguards from the Optimates against the Kings. When the Optimates too appeared to be no more gentle than the Kings, the people created Tribunes from their own body, so that, because the danger was common to them, their care in defending might be more exact. But there is a twofold error in them: for either they are ruled by the multitude rather than rule it, or, to win the favor of the powerful, they permit the liberty of the plebs to be oppressed. Thus fidelity is safe nowhere except where morals are good. The Aediles of the Plebs were joined to the Tribunes of the Plebs; with the Tribunes’ permission they pass judgment, appoint a day for those who possess more than is permitted by law, establish laws against the luxury of women, restrain usurers, and also have charge of grain.
§ 10. Municipalities and other cities had their own Magistrates. They consisted of Curials and Principals, although those who had discharged a Magistracy were customarily called Principals in the proper sense. Under the final period of the Empire they possessed their own Consuls. In the ancient centuries they called them Duumvirs; in place of these others preferred Five-Men. In Greek they called them Demarchs and ἄρχοντας, I believe; some Italians called them Dictators or Aediles. Unless Governors, and indeed the Emperor himself, took notice, the state was most grievously afflicted by these men; for they were generally created from the nobility and were hostile to the needy. Hence it came about that, just as Tribunes were chosen at Rome, so Defenders were chosen in the cities to protect the poor plebs. But in order that the reader may perceive how greatly it matters to have a multitude of Defenders and to have the weak defended sincerely, and what the condition of the Defenders was under Justinian’s Empire, Novel 15 must be read:
Unless we speedily restore the care of Defenders through a competent office, we shall no longer possess even the truth of the ancient names. For some names have different significations from antiquity according to the part they play in affairs; but this name “Defenders” demonstrates purely that antiquity placed certain men over affairs so that they might vindicate them as free from every injustice. Indeed, for this reason we call them Defenders in our ancestral tongue, so that they may rescue those who suffer injustice from evils. But now this name of Defenders has been greatly trampled upon in many parts of our state and so despised that it lies in disgrace rather than in any honor. For obscure men are appointed, and decrees concerning them are tainted by pity rather than by election. Those who have no sufficient means of food and life beg for appointment as Defenders and approach this charge; and judgment is subjected to arbitrary wills as though to some game of dice. Finally, they remove them whenever they wish, although they commit either no fault or the very smallest one, and they advance others to their office, making them, as it were, temporary occupants of the Defender’s post. They do this frequently in a single year with many men, so that officials, Judges of the cities, and their inhabitants ultimately hold the Defenders in contempt. The acts performed by them are regarded as though not performed. For if the provincial Judges obtain their wish, the Defenders—serving them in every respect and attending only to their nods—by no means presume to prepare certain proceedings and records before themselves. But if some are prepared, they first sell even these; then, because they have no archive in which to deposit the proceedings conducted before them, that which is prepared perishes. You will by no means find any record at all from many years deposited with them; rather, those who have an interest in these records seek the proceedings from their heirs or other successors. Of these, those which are found are worthy of no confidence, while others truly perish and fall into such a condition that they are regarded as not performed. We, therefore, since we have ordered matters well concerning the Judges and have made their powers greater among the nations, while the inspection of the cities is far removed from them, believe that it is necessary also to establish provisions concerning the Defenders. For there will thus be a useful harmony if the Defenders of cities assume the office of Judges; and the Governor of the province will appear to be a Judge of Judges rather than a Judge, and more honorable in this respect than those who preceded him. For the more anyone presides over better men, the greater and more honorable he himself is.
§ 11. For this reason the Kings of Spain most prudently established Defenders and Patrons of the Indians in both Indies, to protect them from the rapacity and cruelty of soldiers, Prefects, and Governors. The Bishops and Prelates applied themselves vigorously and earnestly to this cause.