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was seen in them such as to inspire the thought that Livy (or Dionysius) did not know what he was writing. We may fairly infer that Livy is consistent with himself, and Dionysius too with himself: and if so, all need and all pretence for Niebuhr's interpretations fall away at once. Yet it is requisite, in due respect to Niebuhr's genius, learning, and fame, to examine the passages one by one. And this is our excuse, if we have to waste words: Niebuhr's name overwhelms us unless we do so.

As to the imagined schism between the greater and lesser houses, it may be that it is true; but none of the passages in Livy and Dionysius to which Niebuhr refers have any tendency to prove it for by his confession these historians did not mean "greater and lesser" patres, but elder and younger, as they always explicitly call them. The narrative is uniformly self-consistent. To the younger patricians feats of bodily strength are ascribed, similar to those of gown against town in our old universities; while the prudence of the elder men deprecates an appeal to force. In this whole question Niebuhr offers nothing to refute, did he not make an unfair quotation twice over, and with much confidence of tone. Concerning the juniores who espoused the cause of young Kæso Quinctius, he confesses (vol. II. p. 291), that there is no doubt Livy meant the young men; yet (he adds), "it is quite certain that here again" [what has not yet been proved at all] "the distinction was between the greater and lesser houses." In proof, it seems, of this, he refers us to note 471 as peculiarly convincing. In that note we find a reference to Liv. II. 54, à passage, as to which (both there and in vol. I., note 832,) Niebuhr is microscopically blind. Livy relates, that the consuls, when accused by the tribunes, warned the junior patres (whether senators or patricians is quite immaterial), not to seek to rise to the consulate, as it would expose them to the danger of being impeached by the tribunes. And this is gravely alluded to (quoting only so much as did not expose the error), as a decisive proof that these juniors cannot have been young men! Since Niebuhr is not a fool, I hardly expect my readers to believe that I am stating the facts correctly: and I therefore beg them to refer to the books themselves.

But Niebuhr seems to imagine that he has support for his notion in Festus, under the phrase, consul major. Vol. II. note 424, he writes: "At this time the nominee of the Curies, as at first the consul from the Ramnes, and subsequently the one out

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of the first two tribes, was the consul major; agreeably to both the explanations of that phrase given by L. Cæsar in Festus. He was the first appointed, and received the fasces first."-All this is Niebuhr's own fancy. His idea of a consul of the Ramnes (vol. I. note 1143,) has no pretence to documentary evidence, and his theory entirely assumes, what is to be proved, that the three patrician tribes had any other distinction than that of etiquette, like the subdivisions of the English nobility. His quotation from Festus is inaccurate. "Penes quem fasces sunt," cannot mean, "who received the fasces first." When we

learn from Festus that the Prætor first-created used to be called major, (of course when there were but two,) as afterwards primus, it appears a moral certainty that the other interpretation of consul major, viz. “the consul first elected," is correct; and that it has nothing to do with Ramnes, nor with gentes majores, nor with any precedence of Curies over Centuries.

That populus may in some instances be an antique expression for the old citizens is certainly possible: and in the oracle of Marcius, (Liv. XXV. 12,) such appears to be its sense. But since this is not the ordinary use of the word, the presumption is always for its common meaning. Nowhere can it be proved to mean "the old citizens collected in the Curiate assembly." The concilium populi before which Valerius lowered his fasces may have been the Curies; but it also may not; and no fresh conclusions should ever be built on this unproved assumption. As to the populus which sentenced Sp. Cassius and M. Manlius, if it was the Curies, that was a judicial sentence of patricians on their peers, and has nothing in it to make it probable that that assembly had any political power, (legislative or elective) such as Niebuhr attributes to them. But he tries to prove that the concilium populi to which Valerius did homage must have been the Curies: "Concilium," says he, according to Lælius Felix in Gellius, (Nieb. vol. I. p. 425,) "was the assemblage of a mere part of the nation; not of the whole, as it was united in the Centuries." Yet, in spite of Lælius Felix, Livy uses the word concerning the national comitia, (Patribus ex concilio submovendis,) II. 6, and in other places. In Liv. 1. 8, vocatâ ad concilium multitudine, evidently refers to the whole people. Niebuhr farther adduces Liv. 1. 36, (concilia populi, exercitus vocati,) in proof that concilia populi are necessarily contrasted with the Centuries; but these words speak of the elder Tar

quin's reign, in which the Centuries did not exist as a concilium ; so that in no case could this make an argument. In the passage under consideration, (Liv. 11. 7,) it is suicidal in Niebuhr to urge, at once that populus means the patricians exclusively, and that concilium cannot include the whole people; for, to use "populus" of the old citizens, was to ignore the plebeians as not being citizens; if so, the patricians were the whole people; then, according to Felix, "comitia" was the right word for their meeting, not "concilium." This is a fine-drawn argument no doubt, but it is a sufficient reply to one equally fine-drawn. In short, it is certain that Livy meant to tell us that the fasces were lowered to the sovereignty of the entire nation; and it can be nothing more than a surmise, that he took the phrase from an old annalist who meant the Curies. The presumption, hitherto undisproved, is that Livy was right. Dion held the same view, and Niebuhr is used to praise his discrimination between diμos and ouλos. In the case of Sp. Cassius, Livy tells us that he is quoting the opinion of older authors, who said that Cassius was condemned by the populus: hence those who feel the narrative difficult to believe, if understood of the Centuries, find a primâ facie ground for the opinion that Livy misunderstood his authorities. Even here, it must be remembered that a condemnation of Cassius by the Centuries cannot be pronounced absurd; for we do not know enough of the modes used by the patricians for managing the Centuries, and the results of the very complicated system of voting, to make such a sentence incredible. Especially we are ignorant what side the plebeian knights took in the matter, and what social power they might have over other votes. Moreover, Livy indicates the mode by which Virginius and the patricians wickedly sought to blind the people; and as we know that very similar arts were afterwards successful against C. Gracchus and M. Drusus, the improbability of Livy's tale is not at all such as has been represented. As even the tribunes joined against Manlius, his condemnation by the people is not wonderful.

Niebuhr's opinion, (which he relates with all the simplicity of historical description,) that, during the first secession, the senate managed to elect the consuls by the Curies, rests on a passage of Dionysius, (VI. 49,) which he quotes only to contradict in its vital point. The historian says that "the people found no candidates, and therefore elected of themselves from

the number of consulars:" Niebuhr virtually replies;-" Nay, but it was the senate that found no plebs." Dionysius says, They met in the Campus;" and Niebuhr retorts, "This is his usual error; he should have spoken of the council of Curies." And Niebuhr's word, it seems, is to content us as proof.

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In this assembly, he farther asserts, there was no free competition of candidates, but it was confined to those whose names the senate presented. The only evidence referred to is this same passage of Dionysius, (vI. 49,) but it is impossible to guess what words of it he imagined could bear on such an opinion. That the Curies could carry no laws without a πроßоúλeuμa of the senate, Dionysius elsewhere tells us; and he regarded them as a juos. But he nowhere at all attributes consular election to them, and this very thing Niebuhr himself imputes as "the usual error" of Dionysius.

δῆμος.

(ὄχλῳ

"The great council of the Curies empowered the senate to negociate" with the Plebs, says he, vol. 1. p. 608. He refers to Dionys. VI. 67, in proof. That author there states, that the consuls ordered all the people from the country and from the garrisons to assemble on a stated day, and, when it arrived, came out into the forum, which was crammed with a promiscuous multitude (öyly navrodány.) Then having entered the temple of Vulcan, where it was usual to hold assemblies, (èxxλŋoíaç érteλetv, conciones habere?) harangued them. After this, entering the senate-house, they procured a senatusconsultum, appointing ten legati as plenipotentiaries to make peace; who are introduced to the assembly in chapter 69. In the preceding chapter the consuls had told the senate that it was a case of war or peace now pending, and that the senate alone was not competent to act without "the people, who alone could elect magistrates, ordain laws, and decide on peace or war." Certainly, when the state was rent in twain, a consul might naturally call on the Curies, (supposing it to be the only remaining assembly,) to assume at such a moment functions quite unusual. If they did this, nothing at all could be inferred concerning their ordinary constitutional acting. But Dionysius did not imagine the whole plebs to have seceded, nor any thing like it; nor did Livy. The two powers between whom peace or war impended, were, not patricians and plebeians, but those who stayed and those who were gone. Dionysius is at the close of ch. 69, rather elliptical, in barely stating that the plenipoten

tiaries and the senatusconsultum were introduced to the assembly, without definitely adding that the assembly did or did not give its formal sanction. But this hurry of the author is natural to the hurry of the narrative, and cannot be called inconsistency. He adds, that when everybody wanted to learn the senatusconsultum, the consuls "publicly stated" that it was -to reunite the two orders at any expence whatever, (őt v tрóną dúvшvτa:,) and the ambassadors departed that very day.

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Niebuhr however informs us, that Dionysius is here "reduced to great straits;"-that the assembly in question could not have been the duo, because it had no power over peace or war, but only the Curies. Now first, Niebuhr gives no proof that the Curies had power over peace and war. The Curies, I admit, gave a religious confirmation to this, as to every other act; but the Centuries, and not the Curies, decided on this question,—at least for any thing that Niebuhr shows. But again, supposing that doctrine to be ever so true, what is this to the purpose, when Dionysius notoriously identifies the δημος and the Curies ? As he believed this body, (call it duos, or call it Curies,) to be, by itself, arbiter of peace and war, was natural to him to put words to that effect into the consul's mouth. Yet Niebuhr adduces this congruous inference drawn by Dionysius from his error, in proof of a distinction unknown to Dionysius, and utterly opposed to every detail which he gives! But the mention of the temple of Vulcan, says Niebuhr, proves that the assembly was the Curies; for if it had been the Centuries, they would have met on the field of Mars. The Vulcanal, adds he, lay above the Comitium ; and was considered a part of the Comitium. Of this last clause he gives no proof; but if proved, it would make very little towards his conclusion. In Dionysius, it is manifest that the consuls are anxious to have the people close to the senate-house, in order not to lose time. If it be ever so true that this author took from some old annalist the statement that they harangued them in the temple of . Vulcan, it will not tend to shew that the persons harangued were patricians in Curies. He elsewhere (VII. 17,) represents a tribune of the plebs haranguing the people in the temple of Vulcan, in which case it is impossible by any distortion to convert the

* For which he refers to Nardini; who, however, (says he,) mistakes the locality of the Comitium.

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