leagues. Though he was popular for his father's sake, judgment could not be arrested, at least when the tribunes, who had at first impeached him capitally, commuted the penalty into a moderate fine. Perhaps even the patricians struggled only to save his life; for this, with the fact that he was conscientiously believed guilty, not indeed of treachery but of military misconduct, best explains the mortification of mind which led to his death. But now arises the question: before what tribunal was he impeached?

Niebuhr (vol. II. p. 207,) finds it "incomprehensible that the tribunes should have been able to accuse him before the tribunal of their order for a matter not affecting its rights;" and suggests, that he was condemned by the curies. Yet Livy states the patres to have striven for him as zealously as for Coriolanus: the curies therefore would have acquitted him; and to ascribe the judgment to them, is gratuitous opposition to all the authorities. As to the comitia tributa, the thing to me incomprehensible would be, if it could have claimed to try him at all for any thing: and strangest of all, in a case in which it would be at once plaintiff and judge. But, as a fact, his offence did affect the rights of the commons; at least on no other ground could the patrons of the commons claim to prosecute it. We admit that antiquity did not look on state-trials as purely judicial; else they could not have allowed the sovereign and legislative assembly to give the verdict. But the comitia tributa seems on every ground here quite out of the question. That body was neither supreme nor legislative, nor recognised at all in the political constitution as yet, if it even existed. Neither by natural equity, nor by statute law, nor by custom, had it any jurisdiction over a patrician consul; and the patres would have shrunk from no extremity of civil war, rather than concede so monstrous an injustice. Moreover, it seems impossible to doubt that all the impeachments mentioned in Livy prior to the Decemvirate,―of Coriolanus, of Menenius, of Servilius, of Furius and Manlius, of Appius, of Kæso Quinctius, of Romilius and Veturius,—were supposed by him to be before the same tribunal; and this he calls the populus, (II. 54 and 61,) while yet in every narrative he implies or distinctly states the great power of the plebs over the verdict. It cannot be proved, and is highly improbable, that he ever uses the word populus of the comitia

tributa before1 it was made a national assembly: so the whole presumption is that Livy meant the centuries, when he spoke of a trial before the "populus" in this part of the history. And equally does this agree with the historical probability. The centuriate assembly, as having elected the consul, had a natural claim to scrutinize his use of the authority with which it had invested him moreover, its right of entertaining an appeal concerning the life or death of a Roman citizen seemed to lodge in it full power for deciding cases of treason. It judged, as the exκλησία οι γερουσία of a Greek state: not with a simple forensic eye, but with a royal prerogative conjoined, so that state-reasons might undoubtedly influence the acquittal of a criminal, or sometimes lead to a severity beyond the law. If it be conceded that the tribune had from the beginning been allowed to convoke the centuries with a view to give auxilium against the consul to an individual, in pursuance of the Lex Valeria, it is very intelligible how, in his character of patron of the plebs, the tribune might claim and establish a right to appeal to the centuries when the consul had injured the plebs collectively. The postulatio against Menenius might run thus: "Whereas many of the Roman commons have lost their lives, and many more have lost fathers, sons, brothers, husbands, and property lying in the fields, through the wilful neglect of the consul T. Menenius;—we, as patrons of the commonalty, claim that the assembly of the centuries will investigate the proceedings of its officer, will grant to the injured their just vengeance, and hereby protect them from like perfidy in future." Coriolanus, indeed, and Kæso Quinctius, did not misconduct themselves as consuls, and a slight change of the formula would be essential. But the case of the former we must decline to scrutinize: as for Kæso, he had violently endeavoured to disperse the comitia when assembled by the tribune; which was a sufficient plea for his impeach

ment.

Menenius was sentenced, probably by a conscientious verdict: but however single-minded his judges, the tribunes who assailed him had had a political purpose beneath that of social justice. The two chief prosecutors, Q. Considius and T. Genu

1 After the Decemvirate, in 11. 63, he manifestly identifies the words: Icilius tulit ad populum de triumpho.-

Omnes tribus eam rogationem accepe

runt.

cius, were auctores agrariæ legis; and to give weight to their agitation, it was important to terrify the Patres. Having discovered the sharpness of their new weapon in the case of Menenius, they tried it again on Sp. Servilius, the consul under whom the Janiculum had been lost; but his innocence and boldness, with his colleague's testimony, easily gained his acquittal.

This second trial must have produced an intense indignation in the Patres, who now looked on the Tribunes as no longer defenders of the commons, but as men who on opportunity would become legal murderers of the consuls; and this, under the screen of a sacrosanct office. Such a union of the sacred and the criminal was unendurable; terms, they felt, must not be kept with it. Thus the patrician mind began to steel itself for a deed of violence, which alone would teach the tribune to observe his own limits. Accordingly, when, about two years later, the consuls Furius and Manlius, upon quitting office, were impeached by Cn. Genucius on some pretence of an agrarian law, the tribune was secretly assassinated, and the Patres gave out that it was their own deed. They distinctly wished to have it understood that they had no conscience against violating sacrosanct power when so applied.

Zonaras, after Dion Cassius, (Vat. Frag. 22,) without giving any detail, merges this transaction in the vague and exaggerated phrase, λάθρα δὲ συχνοὺς τῶν θρασυτάτων ἐφόνευσαν. This, however, is only consistent with Dion's tendency to blacken all characters and parties, and represent public virtue as a nonexisting thing. It is extraordinary that Niebuhr and Arnold give unhesitating belief to this statement, to say nothing of that concerning the burning of nine tribunes, which Arnold seems disposed to reject. If there had been numerous assassinations, Livy must have heard of it; and his comments upon this affair show that he would not have spared the patricians.

The tribunes certainly took warning by the fate of Cn. Genucius, and no longer tried to prostitute criminal trials to purely political purposes. It is true, they afterwards prosecuted Appius Claudius; but his infamously cruel conduct, in decimating his troops after a battle lost perhaps by his own incapacity, must have made every conscience secretly approve of his impeachRomilius and Veturius were fined for defrauding the soldiers of their booty, (III. 31.) Kæso Quinctius had made

active assaults on the assembly; nor could his prosecution be called the immolating of a single patrician victim from hatred of the whole order.-But before proceeding to the laws of Volero, to which the death of Genucius led, we must turn to the first attempts at tribunician legislation.

These follow upon the execution of Sp. Cassius, whom Livy conceives to have promulgated, but not to have carried, his agrarian law. What was the truth concerning this great man, we perhaps shall never know, farther than his becoming a martyr to the cause of the plebs. It cannot be doubted that the patricians were so ashamed of their own deed, as to garble the story; and if we do not follow Livy closely, we still can only form conjectures as to what is more true. Livy, I say, clearly describes the agrarian law as left imperfect by him; (II. 41, Dimidium [captivi agri] plebi divisurus erat. Adjiciebat huic muneri, &c. ;) for before it could be passed, "popularis jam esse dissuasor et intercessor legis agrariæ cœperat;" nor does he know any thing of a senatusconsultum, which Dionysius believes to have been used to cheat the people, and for the nonexecution of which Furius and Manlius were impeached. In Livy's view, Sp. Cassius did but bequeath to the commons the idea of an agrarian law, which the tribunes presently tried to realize. "Tribuni plebis" (says he, II. 42,) "popularem potestatem lege populari celebrabant;" i. e. tried to signalize their authority by an agrarian law; but they were defeated by the opposition of the consuls. It is not said that there was any voting; and as we shall see that attempts at voting were presently resisted by violence, the probability is, that the tribunes did not venture beyond harangues in favour of an agrarian law. The same remark will apply to the next year, in which Livy says they became ridiculous by boasting of the boon they were going to give; "jactando irritum munus.” That they were not yet bold enough to attempt legislation themselves, farther appears from Sp. Licinius's effort, two years later, to force the consul to bring in an agrarian bill, by stopping the levies. This method also fails, and as we have noticed, the popular cause languishes till the destruction of the Fabii causes the impeachment of Menenius.

That the harangues in favour of an agrarian law were held by the tribunes in the Centuriate assembly, (perhaps by digressing illegitimately from other business,) may be probably inferred,

first, because Livy has not yet named the assembly of the tribes; next, because the consul would not have been permitted by the tribune to address it in opposition. The consuls Furius and Manlius indeed, (II. 54,) whom Cn. Genucius impeached, appear to have tried to silence the tribune and disperse the people by military force, ("Consules summa vi resistunt,) which is not at all likely to have been done, if the tribune had been merely exerting an acknowledged constitutional right of haranguing the tribes. The same remark will in part apply to the patrician resistance against what were no longer harangues, but rogationes; viz. those of Volero and of Terentillus Arsa.-In short, in all these instances it is likely to have been the same assembly now, in the case of Volero, Livy calls it rogatio ad populum,2 (11. 56,) and speaks of the populus as disturbed by Kæso Quinctius, (III. 11;) which, as before observed, must have meant the centuries, and not the tribes, at this period of the history.

Niebuhr indeed, (vol. II. p. 211,) takes for granted that Volero carried his law in the comitia tributa. "On this matter," says he, "the commonalty beyond doubt were exclusively entitled to decide:" but the only reasons given are (obscurum per obscurius,)—" more especially now that the confirmation of the Curies had been done away: to dispute the point was quite scandalous in men who had usurped the power of bestowing the consulship," &c.-But there is no trustworthy evidence that the meeting of the tribes had any constitutional or any de facto existence as yet. Livy does not acknowledge it: Zonaras (or Dion? whom Niebuhr makes so much of,) VII. 17, distinctly denies it. To Volero he is understood to ascribe the privilege gained by the plebs to hold political meetings of its own,—xad' ἑαυτὸ συνιέναι καὶ ἄνευ ἐκείνων βουλεύεσθαι καὶ χρηματίζειν πάνθ ̓ ὅσα av édeλnon, which he calls a law passed by certain tribunes. But even if the assembly of the tribes was already accustomed to meet, certainly it had no legislative voice; and how can it be said to be "exclusively entitled" to annul and remake the solemn compacts between the two orders, made at the Sacred Mount ?

3

2 At the end of the same chapter, "Patres in populi fore potestate," means, the patricians will yield to the wishes of the Centuriate Assembly.

We have here perhaps a clue to i

Dionysius's exaggerated statement of the Publilian laws, noticed above, which he himself calls, τῆς μὲν βουλῆς κατάλυσις φανερά, τοῦ δὲ δήμου δυναστεία.