[1578] Livy, xliii. 16. 11.
[1579] E.g. Greenidge, Leg. Proced. 306, 344. The theory has little in its favor and is not generally accepted; cf. Mommsen, Röm. Strafr. 167 f.
[1580] On the quarta accusatio, see Cic. Dom. 17. 45, quoted p. 259, n. 6. An example of the mitigation of a capital to a finable action is the case against T. Menenius for the mismanagement of a campaign which he had conducted as consul; Livy ii. 52. 3-5 (476). Two examples of change in the form of action in the opposite direction are given on p. 249 f.
[1581] Cic. Dom. 17. 45, quoted p. 259, n. 6.
[1582] Cf. the case of Appius Claudius Pulcher, p. 248.
[1583] Livy ii. 33. 1; Calpurnius Piso, in ibid. § 3; 58. 1; Dion. Hal. vi. 89. 1; cf. Cic. Rep. ii. 33. 58; Mommsen, Röm. Staatsr. ii. 274 f. with notes. Meyer, in Rhein. Mus. xxxvii (1882). 616 f., suggests a doubt as to whether they were instituted at that time. Niese, De annalibus Romanis observationes (1886), and Meyer, in Hermes, xxx (1895), 1-24, have tried to prove that they were not instituted till 471 and that their original number was four. Niese’s view is controverted by Joh. Schmidt, in Hermes, xxi (1886). 464-6. Pais, Anc. Italy, 260, 275, assumes that they came into existence as a result of the abolition of the decemvirate.
[1584] Cic. Frag. A. vii. 48: “Tanta igitur in illis virtus fuit, ut anno XVI post reges exactos propter nimiam dominationem potentium secederent ... duos tribunos crearent, ... Itaque auspicato postero anno tr. pl. comitiis curiatis sunt”; Dion. Hal. vi. 89. 1; cf. ix. 41. 4 f. (included clients and patricians); Livy ii. 56, especially § 3, 10. These authors represent the tribunes as trying vainly to force the patricians from the assembly while the voting was under way. The question of excluding the patricians, however, is connected with the statute of Publilius Philo (339) rather than with the so-called plebiscite of Publilius Volero (471); p. 300 f.
Dion. Hal. vii. 59. 2, places the first tribal meeting in 491, twenty years before the date to which its institution is otherwise assigned. If his account is not an anticipation of later usage, it is exceptional.
[1585] (1) Because there were no other magistrates at the time, (2) because the meeting was auspicated; p. 262, n. 2.
[1586] Inferred from the circumstance that this dignitary presided over the assembly which elected the first college of tribunes after the fall of the decemvirs; Livy iii. 54. 5, 9, 11; p. 285 below.