Note 42 — LIFE OF TIBERIUS GRACCHUS.

The allusion is to a memorable event in the Samnite war. The consuls Spurius Postumius Albinus and Titus Veturius Calvinus B.C. 321, with their army, were caught by the Samnites in the pass called Furculæ Caudinæ, and they were compelled, in order to save themselves, to submit to the ignominy of passing under the yoke. The Roman senate rejected the terms which had been agreed on between the consuls and the officers of the army on the one side, and the Samnites on the other. It was not a treaty (fœdus) as Livius shows, for such a treaty could not be made without the consent of the Populus nor without the proper religious ceremonies. (Liv. 9, c. 5.) The senate, upon the proposition of Postumius himself, sent to the Samnites all the persons who were parties to the agreement and offered to surrender them, but the Samnites would not receive them and they upbraided the Romans for want of good faith.

Mancinus also supported the proposition for his own surrender to the Numantines, and he was offered to them in due form by the officer called the Pater Patratus, but the Numantines declined accepting him. (Cicero, De Officiis, iii. 30.) The principle that a general could not formally make a treaty, and that all treaties required the sanction of the senate or in earlier times perhaps of the patrician body in their assembly, appears to be well established. Those who made the treaty with a Roman general might not know this constitutional rule, but the principle on which the Romans acted in such cases was sound, and the censure that has been directed against them as to their conduct in such transactions, proceeds from ignorance of the Roman constitution and of the nature of the power which a sovereign state delegates to its ministers. Delegated power or authority never authorises the persons to whom it is delegated to do an act which is inconsistent with the constitution or fundamental principles on which the sovereign power is based.

Mancinus returned to Rome and ventured to appear in the senate, but a question was raised as to his right to be there, for it was argued that a man who had been so surrendered ceased to be a citizen and could not recover his civic rights by the fiction of postliminium, as a man who had escaped from the enemy could. (Cicero, De Oratore, 40.) But the subtlety of the Romans found a solution of the difficulty in the case of Mancinus: there can be no surrender, if there is nobody to receive the surrender; therefore Mancinus was not surrendered; therefore he was capable of recovering his civil rights. (Cicero, Topica 1.)