digies, which were arrested by the execution of Orbinia, one of the Vestal virgins, for unchastity. She was buried alive; and of her two accomplices, one killed himself, the other was flogged to death, like a slave.(19) These incidents are not mentioned by Livy.

Volero Publilius first distinguished himself by resistance to the consul, who enrolled him as a common soldier, whereas he had already served as a first centurion. In consequence of his spirited conduct on this occasion, he was elected a tribune of the plebs; in which capacity he proposed a law for transferring the election of the tribunes from the curiæ to the tribes. This is the statement of Dionysius; who adds, that the difference between the comitia curiata and comitia tributa was, that, for the former, a preliminary decree of the Senate, the voting of the people by curiæ, and favourable auspices were necessary; whereas in the latter the votes were taken by tribes, without the necessity either of the consent of the Senate or of auspices.(190) He

(189) Dion. Hal. ix. 40. Compare above, a similar case (p. 141) where the unchaste vestal is immured. Livy, xxii. 57, states that near the be ginning of the Second Punic War, the accomplice of an unchaste Vestal was flogged to death by the Pontifex Maximus, in the Comitium, with his own hands. See above, vol. i. p. 150.

(190) ix. 41. Compare x. 4. In iv. 20, Dionysius distinctly states that the curiæ were originally the assembly of the entire people, in which each citizen had an equal vote; and that this mode of voting was altered by Servius Tullius into the voting by centuries, in which the rich citizens had an advantage. The purely democratic constitution of vote by curiæ is attributed to Romulus; ii. 14. See above, vol. i. p.412,542. Notwithstanding the valid objections which apply to violent alterations of the text of ancient historians, I cannot help agreeing with Goettling, ib. p. 308, n., that the passage of Dionysius in the speech of Lætorius respecting the comitia curiata is corrupt. Having first alluded to the secession, and the creation of the tribunate, he proceeds thus: διεξελθὼν δὲ ταῦτα, τοὺς νόμους ἐπεδείκ νυτο οὓς ὁ δῆμος ἐπεκύρωσεν οὐ πρὸ πολλοῦ, τόν τε περὶ τῶν δικαστηρίων τῆς μεταγωγῆς, ὡς ἔδωκεν ἡ βουλὴ τῷ δήμῳ τὴν ἐξουσίαν κρίνειν, οὓς ἂν αὐτοῖς δόξειε τῶν πατρικίων, καὶ τὸν ὑπὲρ τῆς ψηφηφορίας, ὡς [ὅς Niebuhr] οὐκέτι τὴν λοχῖτιν ἐκκλησίαν, ἀλλὰ τὴν κουριᾶτιν ἐποίει τῶν ψήφων κυρίαν, ix. 46. The supposition of Niebuhr that this is an insulated statement, preserved from an annalist,' and at variance with the rest of the narrative, is quite untenable. (Hist. vol. ii. p. 181, and n. 468.) Dionysius always weaves his materials into a consistent story, and in this passage he evidently refers to the preceding facts. The change of jurisdiction alludes to his detailed account of the trial of Coriolanus (see vii. 65); and the change in the suffrage can only refer to the measure proposed by Volero, which had been virtually agreed to by the people, though it had not formally obtained the

evidently understands that the same body of persons voted in both comitia; though in the other parts of the procedure there were the differences which he specifies. Cicero likewise describes the tribunes of the plebs as having been elected in their second year in comitia curiata, with auspices. (191) Livy mentions the transfer to comitia tributa, but does not state from what body the transfer is made. He speaks of the change being greater in idea than in reality; and as consisting in the exclusion of the patricians from the comitia. (192) The proposal is not carried the first year; but Volero is re-elected, and he renews his proposition, which he now extends to the election of ædiles, and to all other acts within the competence of the people.(193) The two historians differ in many of the details; but they agree in describing a violent conflict between the patricians and plebeians as the consequence of this proposal, and the Senate as finally consenting to its adoption by the people.(194) Niebuhr, and the

force of law. This proposal is thus described in c. 41: vóuov eiopépei Tepi τῶν δημαρχικῶν ἀρχαιρεσίων, μετάγων αὐτὰ ἐκ τῆς φρατριακῆς ψηφηφορίας, ἣν οἱ Ρωμαῖοι κουριᾶτιν καλοῦσιν, ἐπὶ τὴν φυλετικήν. Compare c. 49. Hence in ix. 46 the sense seems to require ὃς οὐκέτι τὴν κουριᾶτιν ἐκκλησίαν ἀλλὰ τὴν φυλετικὴν ἐποίει τῶν ψήφων κυρίαν. Some event subsequent to the trial of Coriolanus must be intended. The arbitrary treatment of this passage by Niebuhr is well exposed by Mr. F. Newman in the Classical Museum, vol. vi. p. 120, but his own explanation is not satisfactory.

(191) Itaque auspicato postero anno decem tribuni plebis comitiis curiatis creati sunt; Cic. pro Corn. i. Cicero agrees with Dionysius in attributing auspices to the comitia curiata. The use of auspices and the presence of priests at the comitia centuriata is mentioned by Dion. Hal. x. 57.

(192) Variâ fortunâ belli, atroci discordiâ domi forisque annum exactum, insignem maxime comitia tributa efficiunt; res major victoriâ suscepti certaminis, quam usu. Plus enim dignitatis comitiis ipsis detractum est, patribus ex concilio submovendis, quam virium aut plebi additum est aut demtum patribus; Livy, ii. 60. Compare the account in c. 56, of the tribune removing the patricians from the comitia, which were to vote on the law of Volero; in c. 57, they are called concilium plebis. I cannot accede to Mr. Newman's interpretation of this passage: Class. Mus. vol. vi. p. 215. (193) Dion. Hal. ix. 43.

(194) Dion. Hal. ix. 41-49; Livy, ii. 54-8, 60. Dionysius describes the first proposal (which was limited to the election of tribunes) as arrested by a terrible pestilence, which he describes at some length. He seems to consider it as a divine interposition made for the sake of obstructing the propositions of Volero, which were despotic in their character. ïñɛoxε d' αὐτοῦ τὰ βουλεύματα, ὄντα τυραννικὰ, ἑτέρα συμπεσοῦσα θεήλατος συμφορά, ο. 42. Livy knows nothing of this pestilence; he says that the rogation of Volero

other modern writers on the history of the Roman constitution, starting from the assumption that the curiæ are a patrician division, consider the statement of Dionysius and Cicero as erroneous, and hold that the election of tribunes before the law of Volero, had been made in comitia centuriata.(195) But it is not allowable to reject positive testimony, of this sort, on account of a hypothesis which is itself uncertain. We must either admit that we do not understand the constitutional history of Rome at this period, or reform the hypothesis respecting the curiæ, so as to bring it into accordance with this and other positive testimonies. It should be moreover observed that Livy, on the authority of Piso, states the number of tribunes to have been increased by the law of Volero from two, as they had been since their institution, to five; and the names of the five tribunes then elected are given after the same historian. (196) Dionysius how

was protracted into a second year by the resistance of the patricians: res, suo ipsa molimine gravis, certaminibus in annum extrahitur; ii. 56. Dionysius represents Lætorius the tribune as making a long speech in answer to Appius; c. 46-7. Livy says of him: rudis in militari homine lingua non suppetebat libertati animoque, and adds that his words failed him, but he protested that he would carry the law or die; c. 56. (Compare Tac. Ann. xv. 67, militaris viri sensus incompti ac validi). Livy knows nothing of the addition made by Volero in the second year. The warlike policy of the extreme patrician party, and the pacific policy of the moderate party, is set forth by Dionysius, c. 43.

(195) See Niebuhr, Hist. vol. i. p. 619; vol. ii. p. 211, 217; Lect. vol. i. p. 168; Arnold, Hist. of Rome, vol. i. p. 172-3; and Becker, ii. 2, p. 254, ii. 3, p. 159; Goettling, Gesch. der R. Staatsverfassung, p. 288-290, thinks that before the law of Volero the tribunes of one year chose the tribunes of the succeeding year, and that there was no popular election. This view is unsupported by any testimony.

(196) Tum primum tributis comitiis creati tribuni sunt; numero etiam additos tres, perinde ac duo antea fuerint, Piso auctor est. Nominat quoque tribunos, C. Sicinium, L. Numitorium, M. Duilium, Sp. Icilium, L. Mæcilium; Livy, ii. 58. Diodorus likewise states that four tribunes were first appointed (i. e. their number was first raised to four) in the consulship of Appius and Quintius; the four names which he enumerates agree with those in Livy taken from Piso (Acilius having been written for Icilius); that of Mæcilius being omitted. As the name of Lætorius is not in this list, Dr. Arnold, ib. p. 178, conjectures that he had been murdered by the patricians. We do not know that Piso recognised Lætorius as a tribune in the preceding year. Our knowledge of the Roman history at this period is much too imperfect to justify any such conjectures. Various hypotheses might be made to account for the non-appearance of the name of Lætorius in this list; but all such conjectures are quite misplaced.

ever conceives their number to have been five before this time;(197) and Cicero says that it had been ten since the second year of their existence.(198) It is impossible to explain or to reconcile these discrepancies, without having recourse to merely conjectural hypotheses, or to prefer one to another upon any sufficient ground.

§ 33 The change in the election of tribunes is followed by the refusal of the army of Appius Claudius to fight; and his severe execution of military law upon his soldiers.(199) One of the next consuls again proposes the execution of the dormant agrarian decree to the Senate; but the proposition is successfully resisted by Appius. (200) The tribunes then decide to impeach him; and according to Livy he is heard in his defence-which he conducts in a haughty and unbending spirit; the trial is then adjourned, and before it is resumed, he dies a natural death.(201) Dionysius, on the other hand, states that he refused indeed to yield to the popular resentment, or to take any measures for mitigating it, but that a few days before his trial was to take place, he committed suicide, though his friends declared that he had died by natural means. (202) Both historians agree in stating that the tribunes wished to prevent the customary eulogy from being pronounced over him, but that the people, more generous and forgiving, insisted on the usage being observed, and permitted his son to pay the honours due to his father's memory. The

(197) Five tribunes are mentioned in ix. 2, 41, and 42. In the two latter chapters Volero and two colleagues are a majority of the college. (198) Pro Corn. i.; Zonaras, vii. 17, places the increase in the number of tribunes after the death of Appius, and says nothing about Volero. (199) Dion. Hal. ix. 50; Livy, ii. 58-60; Zonaras, vii. 17.

(200) Dion. Hal. ix. 51-3, who describes the arguments in detail, and says that the decree had remained unexecuted for 17 years; i.e. from 486 to 470 B.C. Livy here merely says that Appius advocated the cause of the possessores publici agri,' as if he had been a third consul; ii. 61; but lower down, ii. 1, he speaks of Emilius as having proposed a division of land among the plebs.

(201) Livy, ii. 61.

(202) Dion. Hal. ix. 54; Zonaras, vii. 17, combines these two accounts, for he says that the tribunes did not condemn him, but by postponing the trial reduced him to the necessity of putting himself to death.

Capitoline Fasti, indeed, in a subsequent year, contain a notice. which implies that the same Appius, who is stated by our historians to have died at this time, was consul twenty years afterwards (203) but we have no means of explaining the inconsistency, nor any ground for deciding in favour of either account.

§ 34 A statement of Dio Cassius, that the patricians made little open resistance to the plebeians, but removed the most formidable of them by secret assassination, appears to refer to this period: he combines with it the story of the nine tribunes burnt by their colleagues. (20) The other historians do not mention these atrocities; what peculiar information Dio Cassius, who lived in the third century after Christ, possessed on this early period of history, does not appear.(205)

(203) It appears from a fragment of the Capitoline Fasti discovered in 1817, that the author of these Fasti considered the Appius Claudius, who, according to Dionysius and Livy, killed himself in 470 B.C., and who was the son of the first Appius Claudius, to be the same as Appius Claudius the decemvir, who died in 449 B.C. Livy and Dionysius consider Appius the decemvir to have been the son of Appius who killed himself in 470 B.C., and not the same person. See Niebulir, vol. ii. n. 754, who seems inclined to adopt the statement of the Fasti. Dr. Arnold has the following remarks: A most extraordinary difference prevails in the accounts of his subsequent fate. The common story says that he died in prison before his trial, implying that he killed himself to escape his sentence; but according to the Fasti Capitolini, it was this same Appius who twenty years afterwards became decemvir; and we must suppose, therefore, that he now fled from Rome, and lived for some years in exile at Regillus, till circumstances enabled him to return, and to take part in public affairs once morė ;' vol. i. p. 223. We are not however entitled to prefer the statement of the Fasti to that of the historians, and we must leave these two discordant accounts without attempting to decide in favour of either. Niebuhr, vol. ii. n. 579, remarks that the triumphal fasti with regard to these ages prove nothing; since they were compiled in the time of Augustus out of such notices as were then to be met with; their author was no less liable to err than a historian.'

(204) Dio Cassius, xx. i., compared with Zon. vii. 17. See above, p. 139, and Niebuhr, Hist. vol. ii. p, 299, 413; Arnold, vol. i. p. 172, 240.

(205) Niebuhr (followed by Dr. Arnold) accepts the statement of Dio Cassius, and considers these atrocities as characteristic of a republican form of government. This must (he says) seem incredible to persons acquainted only with the mild and amicable footing on which the several orders stand under a monarchy. But in republics, even down to our own days, traces of the same horrible spirit appear. Through its influence, not fifty years ago, several worthy members of the government at Friburg were punished as traitors, for advising that the rights which had been wrested from the citizens and the canton, should be given back. The same spirit in Schwytz has robbed the new subjects of their franchise, and in the North American