Lex Terentilla, about the increase of the number of tribunes to ten; about the Lex Icilia, which divided the Aventine to the commons. The period of the Decemviri passes, and the laws of Valerius and Horatius are sanctioned, without a word about the auctoritas patrum. Not until Canuleius promulgates his bills for legalizing mixed marriages and opening the consulate to the plebeians, do the consuls feebly hint "patres non accepturos;" apparently because it was alleged that the bills were irreligious. Yet the end is, (IV. 6,) "Victi tandem Patres, ut de connubio ferretur, consensere:" which may, at least with much plausibility, be interpreted of the Curiate assembly. The other bill was withdrawn, without coming to a trial; and it is probable that the tribunes practised the policy of demanding both, that they might get one. I almost suspect my own accuracy in collecting the passages; so few do they appear: but if there had been more, it is probable that Becker would have alluded to them in his elaborate discussion on the Patres Auctores (Antiq. vol. 11. pp. 314–332).

When, presently after the affair of Canuleius, (Liv. iv. 8,) we are told that the Patres gladly receive a proposal of the Senate, it is more obvious to understand simply that the measure was popular with the patricians, than to refer it to voting in the Curiate assembly.

The next controversy between the orders is about the agrarian law of the tribunes Maecilius and Metilius, (Liv. IV. 48,) against whom an Appius as usual displays an inveterate opposition, but says no word about refusing "auctoritas." He advises his Order to win over others of the tribunician college; -a plan which proves successful. The next year also the majority of the tribunes declare that they will not allow any plebiscitum to be carried, "nisi ex auctoritate senatus:" which shows that the patricians persevered in the same mode of action.

About forty years pass, during which the chief permanent contest is not about organic reforms, but about the elections. When the patricians have, by means of an interrex, (IV. 51,) restored consuls for military tribunes, in the fifth year the plebs at last revenges itself (IV. 54,) by creating plebeian quæstors for the first time. This is keenly resented by the patres, yet we do not hear that their auctoritas is refused. The same remark applies to their creation of plebeians as military tribunes

(v. 12, 13). It is quite certain that these were unable either to be elected or to exercise their office without the sanction of the curies and a lex curiata; yet even in the year in which all the military tribunes elected are plebeians, no resistance in the Curiate assembly is talked of. This appears to be a clear proof, that its sanction was not a living political reality. Finally, when Licinius and Sextius promulgate their celebrated laws, the patricians endeavour as before to oppose them by means of their colleagues; and in this way the contest is maintained for nine years, (as the Roman historians reckoned,) until the obstinacy of the tribunes prevails, and the Licinian bills are made law. When, in accordance with the third of them, L. Sextius is elected consul, then at last the patricians refuse to give their sanction (VI. 42); which however is resented so fiercely as to excite the threat of secession or civil war. That here again it was not the Senate but the Curies, that refused to confirm, is justly inferred by Niebuhr from Livy's phrase, "Patricii (not Patres) se auctores futuros negabant." As it must be admitted that Livy here understood his own words, it is very gratuitous to doubt it as to book I. ch. 17.

It is difficult to say what greater proof of our proposition we want in an obscure part of history, than the phenomena which have been recounted. In a long and tedious contest, the plebeians, commencing from the lowest point of depression, gradually force their way up to the highest magistracy, and succeed in passing a long series of laws most offensive to the patricians. The earliest steps were undoubtedly the most arduous, especially because afterwards a plebeian interest was sure to grow up in the patrician ranks. It is quite certain that all this time the sanction of the Curies was essential to every law and every curule election, and that they could only say Aye or No, not being at liberty to amend a bill; yet not once is its refusal on record. A refusal is threatened, but only threatened, to the two laws which, in the judgment of high patricianism, were a violation of religion; those which admitted plebeians to intermarriage and to the consulate. We may add, Livy says that some wondered the sanction was not refused to the Valerian Horatian laws. Such being the general facts, and the later assent of the Curies being notoriously an idle form, "auspiciorum causa," the full presumption is, that the same was the case from the first day that the Centuriate assembly came into exis

tence. The refusal of their sanction on the ground of something ill-omened, was probably a common occurrence, and was an aristocratic engine of some importance, precisely because it did not give offence to the plebeians. The gods, and not men, were then thought to disapprove; hence such cases are not recorded as a refusal on the part of the patricians.

But perhaps it is proper to carry our review of facts down to the Publilian laws.-When a consul once passed in the camp a law useful to the treasury, it is remarked that the patres gave their auctoritas, (vii. 16,) because they were pleased with the measure. This was undoubtedly an occasion on which they might have refused with the greatest propriety and with general approval; because they might have taken exception on a point of form,-alleging that the army, while under the sacramentum, was not an assembly of freely voting citizens.-A little later (VII. 18,) a patrician interrex breaks the Licinian law by electing two patrician consuls. The usurpation being repeated the next year, stirs up evil blood anew betwixt the orders; but as soon as the plebeians regain their consul, (VII. 21,) concord returns, and continues unbroken (if we may trust Livy,) for many years. In the midst of this harmony, without complaint, without resistance, Publilius Philo puts the legislative power of the Curies aside for ever by his singular law (VIII. 12). This appears to complete the proof that they were previously a mere piece of ceremonialism, which might nevertheless sometimes work mischief.

Having missed this obvious solution, Niebuhr finds it requisite to invent a contest of which we have no trace (vol. III. pp. 146-151). "There must have arisen," says he, "an important and mischievous discord between the majority of the Patres Conscripti and the common council of the Patres, the Curies." He proceeds with elaborate ingenuity to account for this discord, and then furnishes us with hints as to the methods by which the senate "frightened the Curies into a renunciation of their privileges;" which he thinks may be illustrated by the Act of Roman Catholic Emancipation in England. In vol. II. p. 596, he alludes to "the commotions which led to the Publilian laws" as familiar and notorious, both as to the fact, and as to its causes. Such a turning of his own unsupported hypothesis into historical facts, most eminently tends to delude his reader as to the real state of the evidence.

But it is time to consider Niebuhr's own theory concerning the Curiate assembly, and the proofs which he adduces.

Not to be tedious, reference may be made to vol. I., pp. 434, 483, 518, 525, 530, 565, 608, 619, where his general doctrine admits of being thus summed up. "On the establishment of the Centuriate assembly, the Curiate stood on an equipoise with it; and the sacrifice of authority made by the patricians was very trifling. Yet the new arrangement seems to have been effected by the absolute power of the king against their resistance. The last Tarquin having reigned chiefly by the aid of the lesser houses, a schism, even under the republic, between the lesser and greater was continued, which formed separate political interests in the Curies and in the Senate. The early quæstors were chosen by the Curies. The Interrex, after plebeians were admissible to the senate, may possibly have been chosen by the Curies. The populus to whose concilium Publicola did homage, was the Curiate assembly. This also was the populus to whom a patrician might appeal against the consul's sentence, but only within a mile of the city. The same is the populus, which, according to Festus, named M. Valerius the first dictator. Even in the year of the city 444, the passing of the Lex Curiata after a dictator had been nominated was assuredly more than an empty form.5 During the first secession, the absence of the entire plebs made it impossible to assemble the Centuries; and the patricians caught at the opportunity of electing the new consuls by the Curies. In that assembly no candidates could present their names except through the mediation of the senate; hence the senate virtually got the elections for their own assembly. The Curies also now empowered the senate to negociate with the plebs, and the compact was made, which ended in the establishment of the tribunate. The determining of war and peace rested with the Curies, after the preliminary deliberation of the senate. The Curies did not create the early tribunes of the commons, but only confirmed the choice of the

4 The proof (!) is; that "Junius Gracchanus says they were chosen by the people," Nieb. p. 525. Tacitus, he adds, is assuredly wrong in giving a contrary account.

5 This is a reference to Liv. Ix. 38; a passage which I have adduced as indicating the very contrary conclusion,

viz. that the Lex Curiata was solely auspiciorum caussa. We are there told only that the first Curia which voted was abominanda for having had the lead also at the Gallic defeat, and at the affair of the Caudine Forks: which was a triste omen to Papirius.

6 P. 615.-But no proof is offered.

centuries; the confirmation, however, was "beyond all compare more momentous than the election," p. 619.

Passing to the second volume of Niebuhr, we find, that— "The Curies were the populus who condemned Sp. Cassius (p. 169); and the greater houses at this crisis began to exclude the lesser from the consulship, until the lesser coalesced with the commonalty as partizans of Cassius (p. 172). The veto of the Curies must have kept out of the tribuneship all men notorious for their boldness (p. 176); yet the Curies must have lost their Veto before the election of Volero (p. 190); which is then (as p. 211,) alluded to as an established fact. After the legal murder of Sp. Cassius, "the Centuries were to content themselves with confirming, that is to say, with doing homage to, the consuls appointed by the senate and Curies,” p. 179.7 "Unquestionably," he continues, p. 184, "the transfer of the elective power into the hands of the Curies was so great an alteration, that a historian of the consulship could not have omitted to record its epoch, even if the effects of it had not lasted above two or three years... The houses retained the advantage of bestowing one of the posts for full thirty years, till the ancient prætorship expired in the decemvirate."—" A formal arrangement, by which they [the Centuries] regained the choice of one of the consuls, and were forced to give up the other to the Curies, manifestly preceded the election of Sp. Furius for the following year, 273, when Kæso Fabius was appointed a second time by the senate and the burgesses," p. 188.

.....

It is not requisite to quote more from Niebuhr. Before proceeding to consider his proofs in detail, a general remark is essential. He fully concedes, or rather maintains, that Livy, Dionysius, and Zonaras (whom he identifies with Dion Cassius only when he wishes to give weight to his testimony), were wholly unacquainted with the secret truths to which Niebuhr's analysis forces them to bear witness. He treats their words, ad libitum, as either their own, or those of some old annalist unintelligently copied. Now, without denying that sometimes (especially in a native Roman writer), we may be able to discern such underlying fragments of antiquity, it must be laid down as a first principle of interpretation, that a man's words are his own, until proof is given to the contrary. If on this obvious

7 Not a word of proof is even pretended for this.