acknowledge a treaty which a general had no power to make, and they came to a resolution that the consuls of the following year, as soon as they had entered on their office, should propose the question of rejecting the treaty and giving up to the Numantini the men who had made it. The new consuls (B.C. 136) P. Furius Philus and Sext. Atilius Serranus proposed a bill to the popular assembly pursuant to the terms of a senatus consultum, which was that the treaty which had been made with the Numantini without the consent of the Senate and the Roman people should be declared null, and those who had made it should be given up to the Numantini. Mancinus himself urged the people to vote for the bill, which surrendered him to the enemy, in which respect Cicero contrasts his conduct favourably with that of Q. Pompeius, who had been equally guilty, but was not equally noble-minded in submitting to the penalty of his offence. Ti. Gracchus was included in the bill, but he was not willing to be punished for the fault of his general, whose act the treaty really was, though according to Roman notions every officer who participated in the religious ceremonial of the treaty was liable to be surrendered, the object of the surrender being to free the Roman state from the religious obligation imposed on it by the treaty. It may be true, as Appian says, that Mancinus alone swore to the ratification of the treaty, though we can hardly lay much stress on the words of so late a writer, who speaking of the treaty in the briefest way simply says 'Mancinus took the oath to the Numantini.' Gracchus and the other officers then merely gave their word that the treaty should be observed, or, as Valerius Antias quoted by Gellius expresses it, Ti. Gracchus and the rest gave their promise that the peace should be maintained (pacem spoponderant). The difference may seem small to us, but it was not so to the Romans, whose notion of an oath made an agreement confirmed by it quite different from any other agreement. The true view of the case would have been that the commander-in-chief was alone responsible, for neither his quaestor nor any of his officers could compel him to make a treaty, which he knew that he could not make. If Gracchus did swear to the observance of the treaty, he was equally

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guilty with Mancinus according to Roman notions. Indeed the author of the oration de Haruspicum responsis would seem to mean that Gracchus did swear to the treaty, but we cannot rely at all on the oration as evidence, even if it were Cicero's; and it certainly is not. P. Soipio Africanus, who had destroyed Carthage, was the brother-in-law of Gracchus, and it is said that he gave him his support in this difficulty. The bill, as it was finally carried, touched only Mancinus. Gracchus did not forget the risk that he had run in consequence of the resolution of the Senate, and he owed some gratitude to the popular assembly for saving him from the disgrace of Mancinus.

The consul P. Furius took back Mancinus to Spain. He who had the year before commanded a Roman army at Numantia was now placed in front of the city, stripped of his clothes, bound hand and foot, and delivered by the Roman functionary named Pater Patratus to the enemy. But the Numantini would not take Mancinus, though they might have done what they liked with the unfortunate general. He lay there all day, and at last, as the enemy would not have him, he was taken into the Roman camp, but not before the birds had been consulted to ascertain whether the army or the state would be thereby violating a religious duty.

No Roman general in the early Republican period could ever have thought of making a treaty without special authority from Rome. The case never happened till the affair of the consuls who made a solemn treaty at the Fauces Caudinae to save the Roman army from destruction. They bound the state as far as they could by all the solemnities of religion, and the great difficulty of the senate was not about refusing to acknowledge the treaty, but how they should get rid of the religious obligation without being punished by the gods. As they wisely determined not to acknowledge the treaty, they found out a way of satisfying their religious scruples, by surrendering to the enemy the men who had sanctioned by the ceremonies of religion a treaty which they knew that they had no power to make. It was a consistent conclusion that the anger of the gods should fall on those who knew that they were deceiving the enemy and not on

the Roman state. This great precedent established a rule that no treaty with the Romans was secure, except when it was made by men duly empowered or when it was confirmed by the Roman people. The Numantini would know nothing of this Roman principle and they might justly complain that they were ill used; but in the interests of the Roman state the rule was sound, and in modern times a general might save himself and his army by making terms which no government would acknowledge.

The case of Mancinus was not yet ended. On his return to Rome he attempted to take his seat in the senate, but he was opposed by P. Rutilius one of the tribunes, who maintained that Mancinus was no longer a citizen and consequently not a senator. It was a Roman rule that, if a citizen was captured by the enemy, he became a slave and lost his civic rights, but if in any way he reached home again, he recovered his former condition by the effect of what the Romans called Postliminium. This was accomplished by an ingenious fiction, that if he appeared again in his own house, it must be supposed that he had never been absent. It was also a Roman rule that, if a father sold his son as a slave, which the rule assumed to be a possible case or to have been possible at least in some period of Roman history, or if a man was sold as a slave by the state, or given up to the enemy in due form by the Pater Patratus, he had no right of Postliminium, and his civil capacity was irrecoverably lost. The Romans delighted in legal subtleties. It was argued on the side of Mancinus that a man was not delivered up to the enemy, if the enemy refused to accept him, for tradition or delivery of any thing implies both a person who gives up the possession of a thing and another who at the same time takes possession of it. However the better opinion, as we term it, seemed to be that the delivery in this case was completed by the act of those who gave up the man. The matter was settled by the senate proposing a bill to the popular assembly, by which Mancinus was declared to be a Roman citizen notwithstanding he had been given up to the enemy. Mancinus commemorated his own humiliation, as Pliny says, by setting up his statue in the attitude in which he was surrendered to the Numantini.

It is not easy to understand why a man should thus choose to perpetuate his own disgrace in an enduring form and material. Such a statue was certainly no ornament to the city; but experience shows that statues are not set up as ornaments, but for some other reasons, which we cannot always discover.

CHAPTER VII.

NUMANTIA.

B.C. 136-132.

PHILUS, so far as we know, did nothing in Spain, and his successor the consul Q. Calpurnius Piso (B.c. 135) did not attack Numantia. He wasted some of the lands about Pallantia, and left the country to pass the winter in the milder climate of Carpetania.

The Romans were weary of the long war in Spain, and they looked about for a general who was fit to lead their armies. They might have found one sooner, but there stood in the way, as Livy's Epitome reports it, an enactment that Some no man should be consul twice within ten years. modern writers in quoting the Epitome omit the words within ten years (intra decem annos), and so the rule would be absolute that no man could be elected consul twice. In the early periods of the republic we find instances both of consuls and tribunes being frequently re-elected. Livy (iii. 21) reports a resolution of the Senate of the year B.C. 460, which declared that it was against the interest of the state that either tribunes or other magistrates should be re-elected, but this did not settle the matter, for magistratus, both consuls, and consular tribunes and tribuni plebis were re-elected. In B.C. 342 Livy reports that he found in some authorities that a Plebiscitum was enacted, that no man should hold the same magistratus within ten years, and forty-five years after that date he alludes to the existence of such a law. In the second Punic war the law was suspended from necessity; but the suspension only continued so long as it was necessary to