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The aediles may originally have been nominated by their superiors; but election by the concilium of the Plebs, under the presidency of a tribune, is the only form of their appointment which is known to us. The office was legalised with the tribunate, and its holder possessed the same personal sanctity as the tribune, conferred first by oath and then by law.[376]

For the power of these plebeian magistrates rests wholly on a superstitious belief, consciously applied to fill up a gap in the public law. It might have been thought that magistrates elected by a large body of the citizens, whose powers were recognised by public law, would have been sufficiently protected by their position. But the Romans were slaves to legal formulae. The Plebs was not the community, nor even at first a legalised corporation within the city; the tribunes were, therefore, not magistrates of the state, and wore none of the insignia of office; they had not the imperium and the auspicia, and therefore could not be protected by the law of treason (perduellio), which avenged wrongs done to the state in the person of its magistrate. A substitute must be found in a religious sanction. Perhaps Rome is the only state that has definitely invested the demagogue or “champion of the people” with a halo of sanctity. This was first given him by the people whom he championed. The Plebs on the Mons Sacer had sworn an oath to destroy any one who destroyed their tribune—an oath which they perpetuated to their descendants. The sanctity of the tribunes, therefore, had originally no valid religious ground, for the Populus had not pronounced such an offender to be sacer, nor had the oath been taken by a magistrate on behalf of the whole community. It was simply a proclamation by a section of the people of the infringement of rights which they held would justify a revolution; and the declaration was accepted by the Roman state when it recognised the tribunate. But the inviolability of plebeian magistrates did not gain legal recognition until the reinstitution of the office in 449 B.C. Then the violator of the majesty of the tribune was made a sacer homo[377] in its later sense of “an outlaw” for the whole community, and the aediles and the plebeian decemviri were protected by the same ban. Yet the Roman jurists held that this law did not give sacrosanctitas, at least to the tribune; that was given by the “ancient oath” of the Plebs; the law only announced a penalty which might be carried out by any member of the community. This view was of importance, because it recognised the capital jurisdiction of the Plebs in all cases where their magistrates had been injured; and, although subsequent practice was unfavourable to this jurisdiction, its legality cannot be questioned. The tribune was himself the defender of his own personal inviolability and that of his fellow-officers; for it was he who summarily inflicted the punishment or proposed the penalty to the concilium. The crime of infringing plebeian liberties could not originally have borne a definite name; in later times it was brought under the vague conception of majestas, “the infringement of the greatness of the state.” The penalty might be a capital one, while the acts construed as infringement might be very slight indeed. Physical compulsion, blows, an attempt at murder were all obvious cases; but forcible resistance to a tribune’s will[378] came under this head, and, after the law which guaranteed the right of meeting to the Plebs, any act, whether of magistrates or individuals, which interrupted a meeting of the Plebs summoned by a tribune.[379]