CHAPTER VI

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.

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