COMITIA AND CONCILIUM
In treating of the distinction between comitia and concilium scholars
have invariably begun with the juristic definition of Laelius Felix,[710]
quoted by Gellius,[711] “He who orders not the whole people but some part
of it to be present (in assembly) ought to proclaim not comitia but a
concilium;” they have limited themselves to illustrating this definition,
and to setting down as lax or inaccurate the many uses of the two words
which cannot be forced into line with it. The object of this discussion,
on the contrary, is to consider all the occurrences of these words in the
principal extant literature, especially prose, of the republic and of the
Augustan age—a period in which the assemblies were still in existence—for
the purpose of testing the definition of Laelius, and of establishing new
definitions by induction in case his should prove wrong.
It is convenient to begin with Livy, who though an imperial writer, and
under the stylistic influence of his age, probably adhered in the main to
the technical terminology of the republican annalists from whom he drew.
The first point which will be established is that in Livy’s usage the
difference between comitia and concilium is not a difference between the
whole people and a part of the people.[712]
The plebeian tribal assembly is termed comitia in Livy ii. 56. 1, 2;
ii. 58. 1; ii. 60. 4; iii. 13. 9 (“Verginio comitia habente conlegae
appellati dimisere concilium,” in which comitia and concilium in one
sentence are applied to the same assembly); iii. 17. 4 (the comitia for
passing the Terentilian law, which from Livy’s point of view was the
plebeian assembly);[713] iii. 24. 9; iii. 30. 6; iii. 51. 8 (comitia of
plebeian soldiers for electing military tribunes and tribunes of the
plebs); iii. 54. 9, 11: (plebeian comitia under the pontifex maximus);
iv. 44. 1; v. 10. 10; vi. 35. 10 (“Comitia praeter aedilium tribunorumque
plebi nulla sunt habita”); vi. 36. 9 (the comitia for voting on the
Licinian-Sextian laws); vi. 39. 5; xxv. 4. 6; xxxiv. 2. 11; xlv. 35. 7.
Other examples of comitia of a part of the people are Livy ii. 64. 1
(as the plebeians refused to participate in the consular election, the
patricians and clients held the comitia); xxvi. 2. 2 (comitia held by
the soldiers, and hence by only a part of the people, for the election
of a propraetor). Still more to the point are the comitia sacerdotum:
for electing a chief pontiff, Livy xxv. 5. 2; for electing an augur,
xxxix. 45. 8; for electing a chief curio, xxvii. 8. 1. Comitia sacerdotum
were composed of seventeen tribes, and hence of only a part of the
people.[714] Lastly is to be noted the fact that the plebeian assembly
met on a comitialis dies; Livy iii. 11. 3.
It is now sufficiently established that Livy often applies the term
comitia to the assembly of plebs and to other assemblies which included
but a part of the people. It is equally true that he uses concilium to
denote an assembly of the whole people. The principal instances of Roman
assemblies are:
(1) Livy i. 8. 1: “Vocataque ad concilium multitudine, quae
coalescere in populi unius corpus nulla re praeterquam legibus
poterat, iura dedit.”
(2) i. 26. 5: “Concilio populi advocato” (for the trial of
Horatius).
(3) i. 36. 6: “Auguriis certe sacerdotioque augurum tantus
honos accessit, ut nihil belli domique postea nisi auspicato
gereretur, concilia populi, exercitus vocati, summa rerum, ubi
aves non admississent, dirimerentur.”
(4) ii. 7. 7: “Vocato ad concilium populo” (representing the
consul as calling the people to an assembly).
(5) iii. 71. 3: “Concilio populi a magistratibus dato” (for
settling the dispute between Ardea and Aricia).
(6) vi. 20. 11: “Concilium populi indictum est” (an assembly of
the people which condemned Marcus Manlius).
These instances are well known, and have often been discussed. It is
enough for our purpose to note here that they prove Livy’s willingness
to designate assemblies of the whole Roman people as concilia. But
Mommsen[715] was not satisfied with regarding all these cases as
inaccurate. In spite of Laelius he believed that concilium could
sometimes properly apply to assemblies of all the people. With reference
to the first example given above he says that where concilium denotes
an assembly of all the people, the contio is meant—in other words, a
concilium of all the people is an assembly which has not been summoned
with a view to voting, and is not organized in voting divisions. This
new definition might explain example (1), for possibly Livy did not
think of the first Roman assembly as voting on the laws which Romulus
gave, or even as organized. Unfortunately Mommsen tries to support his
definition by example (2), which refers to the assembly for the trial
of Horatius. But in ch. 26. 12 the same assembly, which must have been
the gathering of the curiae, and which Cicero[716] speaks of as comitia,
voted the acquittal of the accused. Hence it could not have been a mere
contio. Another passage cited in support of his view, Livy ii. 7. 7,
example (4), represents the consul as calling the people to a concilium.
First he addressed them (“in contionem escendit”), and afterward laws
were passed on the subject of which he treated in his speech—evidently
by the same assembly; hence the concilium populi here mentioned was
something more than a contio. Another illustration which Mommsen offers,
but which, having to do with a Roman assembly only by implication, is not
included in the list of examples given above, is Livy v. 43. 8: “When
he had pushed into the midst of the contio, though hitherto accustomed
to keep away from such concilia.”[717] The passage refers to a meeting
of the Ardeates for consulting in regard to the sudden approach of the
Gauls. Gatherings of the kind were called concilia, but the word contio
is also introduced into the passage with reference to a speech made in
the assembly. The implication is that such concilia of all the people
for deliberation were held also at Rome. The circumstances indicate that
it met with a view also to taking action, and that it was therefore
not a simple contio. This passage accordingly offers no support to
Mommsen’s view that when applied to the whole people concilium is merely
a listening, not an acting, assembly.[718] Summing up the evidence for
the new definition of concilium, we may say that, were it true, it might
apply to Livy i. 8. 1, though it is unessential to the explanation
either of this passage or of any other. A single case, too, even if it
were clear, is not a sufficient basis for a generalization; and though
we must agree with Mommsen that the juristic definition does not cover
the cases cited above, it is necessary to reject his amendment as
unsatisfactory.[719]
In fact Mommsen soon discovers cases which, from his own admission,
neither his definition nor that of Laelius will explain, for instance,
Livy i. 36. 6, example (3). On this citation Mommsen[720] remarks
that concilia in this connection could not mean contiones, with which
in his opinion the auspices had nothing to do; it could not refer to
the plebeian assemblies, which he also assumes to have been free
from the auspices.[721] He concludes, therefore, that it denotes the
“patricio-plebeian” tribal assemblies.[722] But why Livy should here be
thinking merely of the tribal assemblies, especially in connection with a
time before they had come into existence, no one could possibly explain.
It is far more reasonable to assume that he intended to include all
kinds of assemblies, curiate, centuriate, and tribal, which required the
auspices. The next citation which Mommsen finds difficult is Livy iii.
71. 3, example (5)—an assembly of the tribes meeting under the consuls to
decide the dispute between Ardea and Aricia over a piece of territory.
The assembly voted (ch. 72. 6) that the land in question belonged to the
Roman people. Mommsen’s[723] explanation of concilium in this connection
is that the resolution adopted by this assembly affected foreign states
only, and was not binding on Rome; hence he assumes that comitia are an
assembly whose resolutions are binding on the Roman state. Here then we
have a third definition of concilium based like the second on a single
case. But Mommsen thinks he finds some evidence for his last definition
in the fact that assemblies of foreign states are usually termed
concilia; and he assumes the reason to be that their resolutions were
not binding on Rome. It would be strange, however, if in calling foreign
institutions by Latin names (rex, senatus, populus, plebs, praetor,
dictator, etc.) Roman writers attempted to show a connection between
these institutions and Rome, seeing that in most cases no such connection
could exist. The proposed explanation of this use of concilium becomes
actually absurd when it is extended to foreign comitia; Mommsen certainly
would not say that the resolutions of the Syracusan comitia, mentioned by
Livy, were binding on Rome.
His last and most difficult case is Livy vi. 20. 11—the concilium populi
which condemned Marcus Manlius, example (6), p. 121. Evidently this
was the centuriate assembly, which alone had the right to try capital
cases, and which alone had to meet outside the pomerium. Various feeble
explanations have been proposed; but Mommsen, with others, prefers to
consider the word wrongly used. It is true that if we accept the juristic
definition, we must conclude that Livy is guilty of error not only in
this case but wherever he applies the term concilium to an assembly of
all the people, Roman or foreign; but as we shall proceed by induction,
we must, at least provisionally, consider all the cases correct, and
frame our definitions accordingly.
We have now reviewed a number of passages in Livy in which concilium
includes all the Romans. There remains a large group of passages which
refer to foreign assemblies. In considering these cases we are to bear in
mind that the Romans apply to foreign institutions in general the Latin
terms with which they are familiar, and in the same sense in which these
terms are used of Roman institutions; in this way only could they make
themselves understood.
Concilium populi and concilia populorum are frequent (e.g. Livy
vii. 25. 5; x. 10. 11; 14. 3; xxi. 14. 1; xxiv. 37. 11), and
most of the assemblies of foreign states designated as concilia
are known to have admitted both nobles and commons.
Instances of concilia in foreign states are: Alba Longa, Livy
i. 6. 1; Latins, Livy i. 50-52; vi. 10. 7; vii. 25. 5; viii. 3.
10; xxvii. 9. 2; Aequians, Livy iii. 2. 3; ix. 45. 8; Antium,
Roman colony at, Livy iii. 10. 8; Veii, Livy v. 1. 8; Etruria,
Livy v. 17. 6; x. 10. 11; 13. 3; 14. 3; Gauls, Livy v. 36. 1;
xxi. 20. 1; Hernicans, Livy vi. 10. 7; Samnites, Livy x. 12.
2; Saguntines, Livy xxi. 14. 1; Iberians, Livy xxi. 19. 9, 11;
xxix. 3. 1, 4; Enna, Livy xxiv. 37. 11; Aetolians, Livy xxvi.
24. 1; xxvii. 29. 10; xxxi. 29. 1, 2, 8; 32. 3, 4; xxxiii. 3.
7; 12. 6: xxxiv. 41. 5; xxxv. 32. 3, 5; 33. 1, 4; 34. 2; 43.
7; xxxvi. 26. 1; 28. 7, 9; xxxviii. 9. 11; 10. 2; xlii. 6;
Achaeans, Livy xxvii. 30. 6; xxxi. 25. 2; xxxii. 19. 4, 5, 9;
20. 1; 21. 2; 22. 3, 9, 12; xxxv. 25. 4; 27. 11; 48. 1; xxxvi.
31. 9, 10; 32. 9; 34. 1; 35. 7; xxxviii. 31. 1; 32. 3; 34.
5; 35. 1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 12;
xliii. 17; Epirus, Livy xxxii. 10. 2; xlii. 38. 1: Boeotians,
Livy xxxiii. 1. 7; 2. 1, 7; xxxvi. 6. 3; xlii. 43, 44, 47;
Acarnanians, Livy xxxiii. 16. 3, 5, 8; xliii. 17; Thessalians,
Livy xxxiv. 51. 5; xxxv. 31. 3; xxxvi. 8. 2; xlii. 38; Argos,
Livy xlii. 44; Macedonians, Livy xlv. 18.
Though most of these concilia are known to have been assemblies of the
whole people, nobles and commons, very rarely, as in Livy x. 16. 3,
the word signifies a council of a few men—in this case, of the leading
men of Etruria (cf. xxxvi. 6. 6); and twice, at Capua, we hear of a
plebis concilium; Livy xxiii. 4. 4; xxvi. 16. 9. From the frequency of
the first-mentioned use we must conclude that Livy does not hesitate to
designate as concilia assemblies of the whole people.
Comitia, on the other hand, more rarely applies to foreign assemblies. We
hear of comitia of the Veientans (Livy v. 1. 1), of the Syracusans (Livy
xxiv. 23. 1; 26. 16; 27. 1), of the Argives (Livy xxxii. 25. 2), of the
Boeotians (Livy xxxiii. 27. 8), and of the Thessalians (Livy xxxiv. 51.
5).
The conclusions thus far reached are as follows:
I. As to Comitia:
1. Livy frequently uses comitia to denote the tribal assembly
of the plebs.
2. He always uses comitia to denote the assembly for the
election of priests, consisting of but seventeen tribes, and
hence of a minority of the people.
II. As to Concilium:
1. He frequently uses concilia (rarely comitia) to denote
foreign assemblies of all the people.
2. Less frequently he uses concilia to denote Roman assemblies
of all the people.
Mommsen and others admit, however, that Livy’s usage does not conform
strictly to the definition of Laelius Felix; they assume accordingly that
the exact meaning of comitia was lost in imperial times, that for the
correct usage we should look to the republican writers.
As Caesar has little occasion for employing the terms in relation to
the Roman assemblies, his usage on purely Roman grounds cannot be made
out. Foreign assemblies—that is, of Gauls—he generally designates as
concilia: _B. G._ i. 30, 31; iii. 18; v. 2, 6, 24, 56 f.; vi. 3, 20; vii.
63, 89; viii. 20 (Hirtius). In all these cases the concilium is a tribal
or national assembly including both nobles and commons; more rarely the
word signifies a council of chiefs; _B. G._ i. 33; vii. 75; and perhaps
vii. 1. Once he applies comitia to Gallic assemblies; _B. G._ vii. 67.
So far, therefore, as his usage can be determined, it does not differ
from Livy’s. From Macrobius, _Sat._ i. 16. 29 (“Contra Julius Caesar
XVI auspiciorum negat, nundinis contionem advocari posse: id est cum
populo agere: ideoque nundinis Romanorum haberi comitia non posse”), it
appears that in Lucius Julius Caesar’s[724] augural language, which must
certainly have been conservative, contio was a general word including
comitia. This passage, with the similar one in Cicero, _Att._ iv. 3. 4,
suggests that the distinctions between contio, comitia, and concilium,
far from breaking down in late republican times, were only then taking
form.
The material furnished by Sallust is more conclusive. In _Hist._ ii. 22,
concilium Gallorum doubtless signifies a national assembly; and although
generally comitia refers to the centuriate gathering (_Cat._ 24, 26;
_Iug._ 36, 44), in _Iug._ 37 (“P. Lucullus and L. Annius, tribunes of
the plebs, against the efforts of their colleagues strove to prolong
their office, and this dissension put off the comitia through all the
rest of the year”)[725] it clearly designates the assembly of the plebs.
His usage accordingly, which allows concilium sometimes to apply to an
assembly of the whole people and comitia to an assembly of a part of the
people, does not differ from that of Livy.
Cicero, however, is the author on whom scholars rely in support of the
definition of Laelius. Following Berns,[726] they say Cicero has violated
the rule but once, _Att._ i. 1. 1, in which occurs the phrase comitiis
tribuniciis. Berns’ examination of Cicero must have been exceedingly
hasty, as he has left a number of instances unnoticed. The following
passage is especially to the point, _Q. Fr._ ii. 14 (15 b). 4:
“The candidates for the tribuneship have made a mutual
compact—having deposited five hundred sestertia apiece with
Cato, they agree to conduct their canvass according to his
direction, with the understanding that any one offending
against it is to be condemned by him. If these comitia, then,
turn out to be pure, Cato will have been of more avail than all
laws and jurors put together.”[727]
The tribunician comitia are the only comitia concerned in Cato’s
transaction. Again in _Att._ ii. 23. 3 (“It is of great interest to
me that you should be present at Rome, if not at the comitia for his
election, at least after he has been declared elected”)[728] Cicero is
thinking of the election of Clodius to the tribuneship, and hence the
comitia he refers to are the assembly of plebs. In _Fam._ viii. 4. 3,
“aedilium plebis comitiis” must refer to the plebeian assembly, in which
the plebeian aediles were elected.[729] Another important passage is
_Sest._ 51. 109:
“I come now to the comitia whether for electing magistrates or
for enacting laws. We often see laws passed in great numbers.
I say nothing of those which are enacted in such a manner that
scarcely five of each tribe, and those not from their own
tribe, voted for them. He (Clodius) says that at the time of
that ruin of the republic he carried a law concerning me, whom
he called a tyrant and the destroyer of liberty. Who is there
who will confess that he gave a vote when this law was passed
against me? But when in compliance with the same resolution
of the senate, a law was passed about me in the comitia
centuriata, who is there who does not profess that then he was
present, and that he gave a vote in favor of my safety? Which
cause, then, is the one which ought to appear popular? That in
which everything that is honorable in the city, and every age,
and every rank of men agree? Or that to the carrying of which
some excited furies fly as if hastening to a banquet on the
funeral of the republic?”[730]
The law which Cicero dwells on with such bitterness at the beginning
of this passage and recurs to at the end is the tribunician law which
pronounced on him the sentence of exile; in this connection, therefore,
comitia distinctly includes the plebeian assembly in its legislative
capacity.
Even more telling is _Leg._ iii. 19. 44-45:
“They (our ancestors) forbade the enactment of laws regarding
particular persons except by the comitia centuriata. For when
the people are organized according to wealth, rank, and age,
they use more consideration in giving their votes than when
summoned promiscuously by tribes. In our case, therefore, a
man of great ability and of consummate prudence, Lucius Cotta,
truly insisted that no act whatever had been passed regarding
us; for in addition to the fact that those comitia had been
held wholly under the fear of armed slaves, the comitia tributa
could not legally pass capital sentences or privilegia.
Consequently there was no need of a law to reinstate us,
against whom exile had not been legally pronounced. But it
seemed better both to you and to other most illustrious men
that all Italy should show what it felt concerning that same
person against whom some slaves and robbers declared they had
passed a decree.”[731]
Cicero is here contrasting the comitia centuriata, which recalled him,
with the tribal assembly of the plebs, which pronounced the sentence of
exile. Now as he was condemned by the plebeian assembly, it is clear
that in this passage Cicero calls the plebeian assembly comitia. How
Mommsen[732] can make this citation refer to his “patricio-plebeian”
comitia tributa no one can possibly explain. In _Att._ iii. 12. 1,
comitia expressly includes the tribunician elections. The same elections
are twice called comitia in _Att._ iii. 14; and in iii. 13. 1, Cicero,
again mentioning these comitia, says: “In tribunis plebis designatis
reliqua spes est.” From all these passages it becomes evident that Cicero
regards the plebeian assembly as comitia. In many passages comitia
seems to include all the elections of the year, of plebeian as well as
of patrician magistrates; for the elections were usually held in the
same season, and could not well be separated in thought.[733] In fact,
according to Cicero’s usage, comitia includes all kinds of national
assemblies which do not come under the term contiones; cf. _Sest._ 50.
106:
“In three places can the judgment and the will of the Roman
people be best discovered, in contio, in comitia, and in the
gathering for the festivals and the gladiatorial shows.”[734]
Cf. also 54. 115; 59. 125.
The very phrase comitia populi (_Rep._ ii. 32. 56; _Div._ ii. 18. 42)
implies the existence of other comitia, for instance comitia plebis.
It is not strange, therefore, that Cicero should use the following
expression; _Rep._ i. 33. 50: “The nobles who have arrogated to
themselves this name, not with the consent of the people, but by their
own comitia.”[735] Here he makes it evident that there may be comitia
of the nobles in contrast with the “consent of the people.” Should the
senate usurp the elective function, Cicero would not hesitate to call
that small body comitia, as appears from his ironical expressions in
_Phil._ xi. 8. 19 (“Quod si comitia placet in senatu haberi” and “Quae
igitur haec comitia”), in which he anticipates imperial usage; cf. Vell.
ii. 124; Tac. _Ann._ i. 15.
Furthermore he speaks of comitia, consisting of but seventeen tribes, for
the election of sacerdotes; _Cael._ 8. 19; _Leg. Agr._ ii. 7. 18; _Ad
Brut._ i. 5. 3 f.; 14. 1; _Fam._ viii. 12. 4; 14. 1.
From his point of view, a tribal assembly of the whole people was one
which consisted of all thirty-five tribes, irrespective of the number
present in the several tribes, irrespective, too, of the rank of those
who attended. An assembly tributim of a part of the people, on the other
hand, was one in which some of the tribes were unrepresented. All this is
clearly expressed in _Leg. Agr._ ii. 7. 16 f.:
“For it orders the tribune of the plebs who has passed this law
to elect ten decemvirs by the votes of seventeen tribes in such
a way that he shall be decemvir whom nine tribes (a majority
of the seventeen) have elected. Here I ask on what account he
(the proposer of the law) has made a beginning of his measures
and statutes in such form as to deprive the Roman people of
their right to vote.... For since it is fitting for every
power, command, and commission to proceed from the entire Roman
people, those especially ought to do so which are established
for some use or advantage of the people, in which case they all
together choose also the man who they think will look out more
carefully for the interest of the Roman people, and each one by
his own zeal and his own vote assists to make a road by which
he may obtain some individual benefit for himself. This is the
tribune to whom it has occurred, more than to any one else, to
deprive the entire Roman people of the right to vote, and to
summon a few tribes, not by any fixed legal condition, but by
the favor of sortition, to usurp the liberty of all.”[736]
Even if the tribes were represented by no more than five men each, and
these men not voting in their own tribes, the assembly was nevertheless
comitia tributa populi.[737] This distinction—recognized by Cicero and
his contemporaries—between an assembly of the whole people as represented
by all the voting divisions and an assembly of a part of the people as
represented by some of the voting divisions, is incompatible with the
distinction formulated by Laelius. Though an antiquarian might make
much of the presence or absence of a few patricians, a man who lived in
the present, as did Cicero, probably never troubled himself about such
unpractical matters.[738]
From the evidence as to Cicero’s usage given above, we must draw the
following conclusions:
1. He often uses comitia to denote the plebeian tribal
assembly, just as Livy does.
2. He regularly uses comitia to denote the assembly of
seventeen tribes for the election of sacerdotes. In this
respect his usage is the same as Livy’s.
3. He is ready to call the senate comitia, should it usurp the
elective function—an anticipation of imperial usage.
4. His distinction between an assembly of the whole people and
an assembly of a part of the people is incompatible with the
definition of Laelius.
Concilium is comparatively rare in Cicero’s works. In a few cases
he seems to make concilia include all kinds of organized national
gatherings; cf. _Rep._ vi. 13 (3). 13: “Nihil est enim illi principi
deo ... acceptius quam concilia coetusque hominum iure sociati, quae
civitates appellantur (Nothing is more agreeable to the Supreme Being
than assemblies and gatherings of men which are joined in societies by
law and which are called states”); _Fin._ iii. 19. 63: “Natura sumus
apti ad coetus, concilia, civitates.” In the first citation concilium
must, and in the second it may, include all the citizens. Cicero could
hardly mean that we are by nature adapted to assemblies of a part of
the people, or that nothing could be more satisfactory to the Supreme
Being than the concilium plebis which interdicted him from fire and
water. In _Fin._ ii. 24. 77 (“To me those sentiments seem genuine which
are honorable, praiseworthy, and creditable, which may be expressed in
the senate, before the people, and in every gathering and concilium”)
he could not be thinking simply of the plebeian assembly, for he placed
far greater value on the opinions expressed in and by the comitia
centuriata.[739]
From all that has been said it is evident that Cicero’s usage as well as
Sallust’s does not differ from that of Livy. In fact no variation can
be found in all the extant literature of the republic.[740] But it may
be asked whether there was not a juristic tradition separate from the
literary and preserving from early time the true distinction between the
two words under discussion. A negative answer is compelled by the fact
that history had its origin with jurisprudence in the pontifical college,
that from the beginning historian and jurist were often united in the
same person.[741] Hence the juristic usage was the same as the literary.
It is thoroughly established, therefore, that in the late republic,
as well as in the early empire, the distinction between comitia and
concilium was not a distinction between the whole and a part; in fact,
it becomes doubtful whether the definition of Laelius was known to the
writers of this period.
The results thus far reached are of great importance; the definition of
comitia and concilium formulated by Laelius has been set aside, and the
ground prepared for the establishment of new definitions by induction.
From the material afforded by the authors under discussion, the following
conclusions relative to the general uses of the two words may be drawn:
I. (_a_) The phrases comitia curiata, comitia centuriata, comitia tributa
constantly occur; whereas (_b_) the phrases concilium curiatum (or -tim),
concilium centuriatum (or -tim), concilium tributum (or -tim) cannot be
found.
(_a_) The former is too well known to need illustration; (_b_) the latter
may be sufficiently established by an examination of the references for
concilium given in this chapter.
II. (_a_) Concilium may apply to a non-political as well as to a
political gathering; (_b_) comitia is wholly restricted to the political
sphere.
(_a_) Concilium is non-political in Cicero, _Div._ i. 24. 49 (deorum
concilium); _Tusc._ iv. 32. 69; _N. D._ i. 8. 18; _Off._ iii. 5. 25; 9.
38: _Senec._ 23. 84; _Fin._ ii. 4. 12 (virtutum concilium); _Rep._ i. 17.
28 (doctissimorum hominum in concilio); _Sest._ 14. 32 (applied to the
meeting of a collegium); Livy i. 21. 3 (Camenarum concilia); ii. 38. 4;
xxvii. 35. 4.[742]
III. Within the political sphere, again, (_a_) concilium is the more
general term,—it suggests neither organization nor lack of organization;
whereas (_b_) comitia is restricted to the organized assembly.
(_a_) Concilium is the more general term in Cicero, _Fin._ iii. 19. 63;
ii. 24. 77; _Rep._ vi. 13 (3). 13.[743] In all these citations concilia,
denoting assemblies of the whole people, must certainly include organized
meetings, without excluding the unorganized. In _Leg._ iii. 19. 42
(“Invito eo qui cum populo ageret, seditionem non posse fieri, quippe
cui liceat concilium, simul atque intercessum turbarique coeptum sit,
dimittere”) concilium is probably the organized assembly. On the other
hand, the concilium of all the people mentioned by Livy, i. 8. 1, may
have been unorganized.
IV. Within the province of organized national gatherings, on the other
hand, (_a_) comitia is the wider term, applying as it does to all
assemblies of the kind, whatever their function; whereas (_b_) concilium
as an organized national assembly is wholly restricted to legislative and
judicial functions.[744]
(_a_) Comitia is used in its most general sense in Cicero, _Div._ i. 45.
103; ii. 18. 42 f.; 35. 74; _Tusc._ iv. 1. 1.[745]
V. (_a_) Applied to foreign institutions, comitia always designates
electoral assemblies; (_b_) as at Rome, concilia are always legislative
or judicial assemblies.[746]
(_a_) Comitia is used of foreign states in:
Caesar, _B. G._ vii. 67; Cicero, _Verr._ II. ii. 52. 128 (three
occurrences), 129, 130; 53. 133; 54. 136; _Fam._ viii. 1. 2;
Livy v. 1. 1; xxiv. 23. 1; 26. 16; 27. 1; xxxii. 25. 2; xxxiii.
27. 8; xxxiv. 51. 5.
(_b_) Foreign concilia are mentioned by:
Caesar, _B. G._ i. 18, 19, 30, 31, 33; iii. 18; v. 2, 6, 24, 56
f.; vi. 3, 20; vii. 1, 14, 15, 63, 75, 89; viii. 20 (Hirtius);
Sallust, _Hist._ ii. 22; Nepos, _Tim._ iv. 2; Livy i. 6. 1;
50-52; iii. 2. 3; 10. 8; v. 1. 8; 17. 6; 36. 1; vi. 10. 7; vii.
25. 5; viii. 3. 10; ix. 45. 8; x. 10. 11; 12. 2; 13. 3; 14. 3;
xxi. 14. 1; 19. 9, 11; 20. 1; xxiv. 37. 11; xxvi. 24. 1; xxvii.
9. 2; 29. 10; 30. 6; xxix. 3. 1, 4; xxxi. 25. 2.; 29. 1, 2, 8;
32. 3, 4; xxxii. 10. 2; 19. 4, 5, 9; 20. 1; 21. 2; 22. 3, 9,
12; xxxiii. 1. 7; 2. 1, 7; 3. 7; 12. 6; 16. 3, 5, 8; xxxiv. 41.
5; 51. 5; xxxv. 25. 4; 27. 11; 31. 3; 32. 3, 5; 33. 1, 4; 34.
2; 43. 7; 48. 1; xxxvi. 6. 3; 8. 2; 26. 1; 28. 7, 9; 31. 9, 10;
32. 9; 34. 1; 35. 7; xxxviii. 9. 11; 10. 2; 31. 1; 32. 3; 34.
5; 35. 1; xxxix. 33, 35, 36, 37, 48, 50; xli. 24; xlii. 6, 12,
38, 43, 44, 47; xliii. 17; xlv. 18. Most of these concilia are
known to have been assemblies of the whole people, noble and
common.[747]
VI. In the Roman state, in a great majority of cases comitia are
electoral assemblies; in fact, the word may generally be understood to
signify that kind of assembly, or simply elections, unless the context
indicates a different meaning.
Comitia are electoral in:
Caes. _B. C._ i. 9; iii. 1, 2, 82; Sall. _Cat._ 24; _Iug._ 36,
37; Cic. _Imp. Pomp._ 1. 2; _Leg. Agr._ ii. 7. 18; 8. 20; 10.
26; 11. 27; 12. 31; _Mil._ 9. 24, 25; 15. 41; 16. 42; _Mur._ 1.
1; 17. 35; 18. 38; 19. 38; 25. 51; 26. 53; _Phil._ ii. 32. 80,
81; 33. 82; 38. 99; viii. 9. 27; xi. 8. 19; _Planc._ 3. 7, 8;
4. 9, 10; 6. 15; 8. 21; 20. 49, 50; 22. 53, 54; _Verr._ 1. 6.
17; 7. 19; 8. 22, 23; 9. 24, 25; 18. 54; II. i. 7. 19; Frag. A.
vii. 48; _Rep._ ii. 13. 25; 17. 31; 31. 53; _Att._ i. 1. 1, 2;
4. 1; 10. 6; 11. 2; 16. 13; ii. 20. 6; 21. 5; 23. 3; iii. 12.
1; 13. 1; 18. 1; iv. 2. 6; 3. 3, 5; 13. 1; 17. 7; 19. 1; xii.
8; _Ad Brut._ i. 5. 3; 14. 1; _Fam._ i. 4. 1; vii. 30. 1; viii.
2. 2; 4. 3; 14. 1; x. 26; _Q. Fr._ ii. 1. 2; 2. 1; 11. 3; 15.
3; iii. 2. 3; 3. 2; Varro, _R. R._ iii. 2. 1; Nepos, _Att._ v.
4; Livy i. 32. 1; 35. 1; 60. 4; ii. 8. 3; 56. 1, 2; 58. 1; 60.
4, 5; iii. 6. 1; 19. 2; 20. 8; 24. 9; 30. 6; 34. 7; 35. 1, 7,
8; 37. 5, 6; 39. 8; 51. 8; 54. 9, 11; iv. 6. 9; 16. 6; 25. 14;
35. 6; 36. 4; 41. 2; 44. 1, 2, 5; 50. 8; 51. 1; 53. 13; 54. 8;
55. 4, 8; 56. 1; 57. 9; v. 9. 1, 8; 10. 10; 14. 1; 31. 1; vi.
1. 5; 22. 7; 35. 10; 36. 3, 9; 37. 4; 39. 5; 42. 9, 14; vii.
9. 4; 17. 10, 13; 19. 5; 21. 1; 22. 7, 11; viii. 3. 4; 13. 10;
16. 12; 20. 1; 23. 11, 14, 17; ix. 7. 12, 14; x. 5. 14; 11. 3;
15. 7; 16. 1; 21. 13; 22. 8; xxi. 53. 6; xxii. 33. 9, 10; 34.
1, 3, 9; 35. 2, 4; xxiii. 24. 3; 31. 7, 12; xxiv. 7. 11; 9. 5,
9; 10. 2; 11. 6; 43. 5, 9; xxv. 2. 3, 5; 5. 2; 7. 5; 41. 10;
xxvi. 2. 2; 18. 4; 22. 2; 23. 1, 2; xxvii. 4. 1; 8. 1; xxviii.
10. 1, 4; 38. 11; xxix. 10. 1, 2; 11. 9, 10; xxx. 40. 5; xxxi.
49. 12; 50. 6; xxxii. 7. 8, 12; 27. 5, 6; xxxiii. 21. 9; xxxiv.
42. 3, 4; 44. 4; 53. 2; xxxv. 6. 2; 8. 1; 10. 1, 9; 20. 7; 24.
3; xxxvi. 45. 9; xxxvii. 47. 1, 6; xxxviii. 35. 1; 42. 1, 2, 4;
xxxix. 6. 1; 23. 1; chs. 32, 39, 40, 41, 45; xl. 18, 37, 45,
59; xli. 6, 8, 14, 16, 17, 18, 28; xlii. 9, 28; xliii. 11, 14;
xliv. 17.
Comitia are legislative or judicial in:
Cic. _Dom._ 28. 75; 30. 79; 32. 86; 33. 87; _Har. Resp._ 6. 11;
_Mil._ 3. 7; _Phil._ i. 8. 19; x. 8. 17; xiii. 15. 31; _Pis._
15. 35, 36; _Red. in Sen._ 11. 27; _Sest._ 30. 65; 34. 73; 51.
109; _Leg._ iii. 19. 45; _Rep._ ii. 31. 53; 35. 60; 36. 61;
_Att._ i. 14. 5; ii. 15. 2; iv. 1. 4; xiv. 12. 1; Livy iii. 13.
9; 17. 4; 20. 7; 24. 17; 29. 6; 55. 3; vi. 36. 9; viii. 12. 15;
xxv. 4. 6; xxvi. 3. 9, 12; xxxi. 6. 3, 5; xxxiv. 2. 11; xlii.
30; xliii. 16; xlv. 35.
As these lists are nearly exhaustive, they represent substantially the
relative frequency of the two uses of comitia.
VII. (_a_) Rarely is either the centuriate assembly or the so-called
patricio-plebeian tribal assembly termed concilium; (_b_) the plebeian
tribal assembly is rarely termed comitia except when electoral.
The principal instances of the rare use of concilium under (_a_) are Livy
i. 26. 5; 36. 6; iii. 71. 3; vi. 20. 11.[748] (_b_) In its legislative
or judicial capacity the plebeian tribal assembly is called comitia in
Cicero, _Leg._ iii. 19. 45; _Sest._ 51. 109; Livy iii. 13. 9; 17. 4; vi.
36. 9; xxv. 4. 6; xxxiv. 2. 11; xlv. 35.
This classification covers without exception all the cases in the authors
under discussion. An attempt may now be made to trace the development of
these uses.
The first thing to be considered is that whereas concilium is singular,
comitia is plural. Undoubtedly it is a plural of the parts of which the
whole is composed; in other words, the curiae, or centuries, or tribes
were originally thought of as little assemblies, whose sum total formed
the comitia. Comitia therefore always has reference to the parts—the
voting units—of which the assembly is composed, whereas concilium as a
singular views the assembly without reference to its parts. For this
reason, whenever it is advisable to add a modifier to indicate the
kind of organization of the assembly, comitia is always used. We find,
accordingly, comitia curiata, comitia centuriata, and comitia tributa in
common use, but never concilium curiatum (or -tim), concilium centuriatum
(or -tim), or concilium tributum (or -tim). These last expressions, which
are modern inventions, do not accord with the Roman way of viewing the
assemblies. This consideration satisfactorily explains the first general
use.[749]
As a non-political gathering is not made up of groups—similar to the
voting divisions of the national assemblies—it cannot be called comitia.
Concilium is the only term appropriate to it; hence we have the second
general use of the two words.[750]
The same consideration makes concilium the more general term within
the political sphere; the assembly it designates may be organized or
unorganized, whereas comitia applies only to assemblies organized in
voting divisions. This is the third general use.[751]
For explaining the four remaining uses it is necessary to inquire
into the fundamental meaning of concilium. Although the etymology is
uncertain, probability favors the ancient conjecture which derives
it from “con-calare.”[752] People could only be called together for
a purpose, which would most naturally be conversation, discussion,
deliberation. Whatever may have been its origin, concilium certainly
developed this meaning.[753] In the manuscripts and editions it is
frequently interchanged with consilium,[754] and in the sources these
two words are often placed in punning juxtaposition.[755] Possibly their
close resemblance, founded on no etymological connection of the roots,
helped create in concilium the idea of deliberation. At all events in the
prose authors of the period under discussion this is the primary meaning.
The deliberative character of most non-political concilia is very
evident.[756] With this meaning the word could not designate an electoral
assembly, which did not allow discussion;[757] it was restricted to
legislative and judicial assemblies, in which the voting was preceded by
deliberation. This is the fourth use.[758]
Rarely did a Roman writer have occasion to mention an election in a
foreign state. Whenever he did so, however, he always used comitia. Most
of the business of foreign assemblies referred to by Roman writers was
concerned with international affairs—was legislative—and hence foreign
assemblies are usually termed concilia.[759] This consideration accounts
for the fifth general use.[760]
The sixth[761] may be easily explained. The tendency was to restrict
comitia to electoral assemblies, just as concilium was restricted to
legislative and judicial assemblies, though this tendency never became a
rule.
The seventh[762] may be accounted for by the fact that after the
passing of the Hortensian Law, the centuriate comitia came to be almost
wholly electoral, while the plebeian tribal gathering became the chief
statute-making body in the state. Furthermore the assembly over which
the tribunes presided was far more deliberative than any other. Hence
the centuriate assembly became _the_ comitia, and the plebeian tribal
assembly _the_ concilium.[763]
The cause of the error into which Laelius[764] fell is now apparent.
Finding the plebeian tribal assembly frequently termed concilium and
the centuriate assembly of the whole people generally termed comitia,
he hastily concluded that comitia should be restricted to assemblies of
the whole people and concilia to assemblies of a part of the people.
This discussion has proved, against Laelius, that for the republic and
for the age of Augustus the distinction between the two words was not
a distinction between the whole and a part, and that all the uses of
comitia and concilium in this period may be explained by two simple
facts: (1) that whereas concilium is singular, comitia is plural; (2)
that concilium suggests deliberation, discussion.
A result of this inquiry is to banish the expressions “concilium tributum
plebis” and “patricio-plebeian comitia tributa”—the former as impossible,
the latter as unnecessary—from the nomenclature of Roman public law.
There were but three forms of organized assembly—curiate, centuriate, and
tribal—all equally entitled to the name “comitia.” The difference between
the “comitia tributa populi” and “comitia tributa plebis” was chiefly in
the presidency, as will be shown in a later chapter.[765] Contio, on the
other hand, denotes the listening or witnessing assembly, unorganized or
organized but never voting, whereas concilium, overlapping contio and
comitia, may include voting in addition to deliberation.
Mommsen, Th., _Röm. Forschungen_, i. 129-217; Berns, C., _De
comitiorum tributorum et conciliorum plebis discrimine_;
Soltau, W., _Altröm. Volksversammlungen_, 37-46; Humbert,
G., _Comitia_, in Daremberg et Saglio, _Dict._ i. 1374 ff.;
_Concilium_, ibid. 1432 f.; Liebenam, W., _Comitia_, in
Pauly-Wissowa, _Real-Encycl._ iv. 679 ff.; Kornemann, E.,
_Concilium_, ibid. iv. 801 ff.; Vaglieri, D., _Concilium_, in
Ruggiero, _Diz. ep._ ii. 566 ff.; see also indices s. Comitia,
Concilium, in the works of Niebuhr, Schwegler, Lange, Mommsen,
Marquardt, Willems, Herzog, etc. The authorities thus far
named represent the usual theory as to the distinction between
comitia and concilium based on the definition of Laelius Felix
discussed in this chapter. A new view is presented by Botsford,
G. W., _On the Distinction between Comitia and Concilium_, in
_Transactions of the American Philological Association_, xxxv
(1904). 21-32—a paper reproduced with additions in the present
chapter. See also Lodge, G., _Lexicon Plautinum_, i. 277 f.
(Comitia), 289 (Concilium); Forcellini, _Totius Latinitatis
Lexicon_, ii. 297 f. (Comitia), 347 f. (Concilium); Gudeman,
_Concilium_, in _Thesaurus linguae latinae_, iv. 44-8.