CHAPTER V

THE AUSPICES

I. _Auspicia Privata_

Auspices (auspicia) were signs sent by the gods through which they declared their will to men. Those given in answer to prayer were impetrativa (or impetrita), those sent unasked oblativa. The first were necessarily favorable; the second might be either favorable or the contrary.[578] To take or to hold auspices was to seek such signs in due form. Auspicia, or the singular auspicium, also designated the right or the power to perform the function. They were not a means of prophecy of future events but of ascertaining whether the deity approved a proposed

## action.[579] With reference to their object and to the persons qualified

to take them, they were of two kinds, private and public. Whereas the public auspices, taken in behalf of the state, belonged exclusively to magistrates, the private were open to all;[580] and in early times a Roman always resorted to them before beginning any important business.[581] Though it was permissible to consult any deity,[582] the greatest weight attached to the approval of the supreme god Jupiter.[583]

The plebeians, who as long as they were excluded from the magistracies were necessarily debarred from the auspicia publica, enjoyed equally with the patricians all private rights of religion; in fact if the nobles had wished, they possessed no legal means of preventing the holding of auspices or the performance of any other sacred rite in private plebeian houses. Not only is it stated that all had a right to auspicate,[584] but the formula for summoning troops given by Cincius[585] implies that the soldiers, who were mainly plebeian, were accustomed to perform the rite. We find accordingly the elder Cato, a plebeian, attending to the ceremony in his own home.[586] The patricians, however, who believed themselves to be nearer and dearer to the gods than were the plebeians, and who in their struggle to keep themselves a closed caste and the offices barred against the lower social class, declared that conubium if granted would disturb the private as well as public auspices.[587] But this assertion need not signify that the plebeians had no private auspices, it might indicate merely a difference between the plebeian and patrician ceremonies, naturally implying the superiority of the latter. Again when on a certain occasion according to Livy a tribune of the plebs inquired of a patrician why a plebeian could not be made consul, the reply was that no plebeian had the auspices, reiterating that the decemvirs had forbidden conubium to prevent the disturbance of the ceremony by uncertainty of birth.[588] Reference might here be simply to the auspicia publica, with which alone the consul was concerned. However this may be, the patrician claim was indignantly repudiated by the plebeians, and the historian can say no more than that it was “perhaps true.” Another passage from Livy usually interpreted in support of the theory that the patricians alone had private auspices represents them, before the opening of the offices to the commons, as saying, “So peculiar to us are the auspices that not only the patrician magistrates whom the people choose are elected under the auspices, but we ourselves under the sanction of the same rite without a vote of the people appoint the interrex, and we as private persons hold auspices, which they do not hold even as magistrates.”[589] This passage is perfectly intelligible to one who bears in mind that in the late republic private auspices had disappeared,[590] and that therefore when the word auspicia is used without qualification by a late republican or imperial writer, it always has reference to the public ceremonies.[591] In the quotation just given, accordingly, nothing more is meant than that the patricians, who have the exclusive right to the offices, are alone competent to perform the public religious ceremonies which belong to the magistrates. Reference in the quotation to the auspices of private persons signifies that when there was no magistrate competent to hold the election of consuls, the public auspices returned to the senate, the patrician members of which proceeded under auspication to appoint an interrex for holding the elections. In this case the senatorial patricians, it was asserted, attended to the ceremony not as magistrates but as private persons, though the rites were themselves public. As distinguished from magistrates, the senators were privati. It was not, then, as mere citizens but as patrician members of the senate that they performed the rite. Further light is thrown on this subject by the fact that in the agitation for the opening of the augural and pontifical colleges to the plebeians in 300, the patricians repeated the assertion that with them alone were auspices, they alone had family (gens), they alone possessed true imperium and auspicium in peace and war.[592] This claim they had the effrontery to make despite the fact that plebeian consuls had been taking public auspices for more than sixty years. In the pride of their blood they claimed that theirs alone were strictly legal (iustum). Notwithstanding such partisan assertions the facts thus far adduced lead unmistakably to the conclusion that the plebeians equally with the patricians enjoyed the right to private auspices.[593]

II. _Auspicia Publica Impetrativa_

The right to public auspices belonged primarily to patrician magistracies[594]—those which in the early republic were filled only by patricians, but which continued to be called patrician after they were open to plebeians. All elections and appointments to such offices were auspicated;[595] and their incumbents were expected to seek the previous approval of Jupiter for every important act of their administration.[596] The king, interrex, dictator, consuls, praetors, and censors had the auspicia maxima; the others the minora.[597] The praetor, as colleague of the consuls, was elected under the same auspices with them, that is, in the same meeting of the assembly, whereas the censors, not being colleagues of the consuls, were elected under different auspices. Between magistrates who were not colleagues there could be no collision in the auspicia impetrativa; those of the censors neither strengthened nor vitiated those of the consuls or praetors, nor were strengthened or vitiated by them. In case of a conflict between colleagues, the greater auspices annulled the lesser, and equal auspices annulled each other.[598] For the exercise of a function properly belonging to a magistracy, the incumbent performed the ceremony at his own will and pleasure, unless expressly forbidden by a superior;[599] but one who undertook a deputed duty had to ask the auspicium of a magistrate who was competent to perform the duty in his own right. Thus the quaestor, who was not qualified by right of his office to call the comitia centuriata, found it necessary to do so in his capital prosecutions. In such a case he asked of the praetor or consul the right to hold auspices for summoning this assembly.[600] Whether the pontifex maximus held auspices in his own name, or was obliged, like the quaestor, to apply for them to a higher secular official, is unknown; at all events it was necessary for him to auspicate the comitia calata, over which he presided.[601] It seems probable that the tribunes originally did not have the right as they were not magistrates; but when they came to be so considered, they acquired the auspicium. All magistrates—necessarily including the tribunes—who convoked the senate had previously to perform the ceremony;[602] Cicero[603] seems to include the tribunes among the magistrates who had the auspicium; and as further proof the very expression “patriciorum (magistratuum) auspicia”[604] used by Messala implies the existence of “plebeiorum magistratuum auspicia.” It was not the custom of the tribunes, however, to auspicate their assemblies of the plebs.[605]

For assistance in auspication the magistrate summoned any person he pleased, who was rarely if ever a public augur.[606] An augur,[607] whether private or official, was a person who knew how to hold and to interpret auspices.[608] A college of public augurs[609] for the service of the state was established in the most primitive times. Probably comprising three members, one from each tribe, it was gradually increased till under Sulla it reached fifteen.[610] The members of the college were neither magistrates[611] nor prophets. They were rather the wise,[612] experienced[613] keepers and expounders of a sacred science and art[614]—the “interpreters of Jupiter All-Great and Good.”[615] Having to do with religion, they were sacerdotes, like the pontiffs, though not offerers of sacrifice (flamines).[616] The functions which they exercised independently of the magistrates included the inauguration of religious officials (inaugurare sacerdotes), the blessing of fields twice a year, and of the people after the close of a war.[617] In attending to such duties (auguria) only did they exercise their right to the auspices.[618] In a dependent though far more influential position they acted as the professionally skilled advisers and assistants of the magistrates in all matters of peace and war.[619] If a magistrate was not himself an augur,[620] it was of the utmost importance to have their service; for the science of discovering and interpreting the divine omens was intricate, mistakes were easy, and the slightest oversight might vitiate the whole business in hand. When in doubt as to the validity of the ceremony, either the magistrate to whom it belonged or the senate could refer the case to the college of augurs, which thereupon gave an opinion in the form of a decree. The senate then acted on the matter according to its judgment.[621] In case a law had been passed, a magistrate elected, or any public act performed against its wishes, it could inquire of the college of augurs whether the election or other act had been duly auspicated; and should a defect be alleged, the senate could annul the act or request the magistrate to resign. It required unusual courage in a man to keep himself in office in defiance of the authority of the senate and of the religious feeling of the whole people.[622] These considerations account for the great importance attaching to the presence of augurs in the comitia—a subject to be treated in another connection.[623]

The service of augurs was most needed in establishing the terrestrial templum[624]—a carefully marked out, oriented spot which the magistrate occupied while performing the rite.[625] Whereas the commander of an army generally made use of chicken auspices (signa ex tripudiis), which did not require their assistance,[626] they were doubtless always called upon to institute templa in or near the city.[627] For the exercise of their art they divided the world, so far as known to them, into augural districts. The central district was the city, limited by the pomerium,[628] beyond which, probably extending to the first milestone,[629] lay a zone termed ager effatus,[630] whose boundaries were marked by cippi.[631] The rest of the world within their sphere of knowledge they divided into ager Romanus, which in its larger sense included the two districts above mentioned, Gabinus, peregrinus, hosticus, and incertus.[632] For the comitia the two inner regions were alone important: (1) the auspication of assemblies held in the city had to be performed within the pomerium; (2) as often as the magistrate in passing from the city to the Campus Martius to hold the comitia centuriata crossed the pomerium,[633] or more strictly the brook Petronia,[634] he was obliged to take the special auspices of crossing. Beyond the ager effatus assemblies were not ordinarily held.

Originally the most common form of divination must have been the watching of the flight of birds, for it is from this ceremony that the word auspicium is derived.[635] Legend accordingly asserts that Romulus founded the city on the Palatine under the auspices of twelve vultures.[636] Before the end of the republic, however, all other forms of public auspicia impetrativa in the city had given way to the caelestia, especially the lightning and thunder.[637] The reason is that the heavenly signs could be most easily understood and carried greatest weight; whereas other auspices had to be held for each individual act, the celestial omens of the morning served the magistrate for all his undertakings during the entire day.[638] The effect of heavenly signs on assemblies of the people, however, was peculiar. Not only were comitia and contiones interrupted by storms;[639] not only was it impious to hold an assembly while it was lightning or thundering,[640] but even while the magistrate was auspicating at daybreak, if a flash of lightning appeared on the left—a sign favorable for every other undertaking—he dared not hold the assembly on that day.[641] Some favorable comitial sign the magistrate was supposed to perceive,[642] but what it was we do not know.

The general rule that the auspices should be taken for an act on the very spot on which the magistrate intended to perform the act applied to the comitial auspices. For meetings on the Capitoline Hill they probably used the temple of Jupiter, dedicated for all time;[643] for assemblies in the comitium the rostra, also a templum;[644] and for the comitia centuriata the president’s platform in the Campus Martius.[645] Not only patrician magistrates but also tribunes of the plebs occupied templa in transacting business with the people.[646]

Between midnight and morning[647] on the day of assembly the magistrate repaired to the templum.[648] There, placing himself on a solid[649] seat at the door, usually facing eastward, he watched the heavens (spectio). Meanwhile he first asked the attendant, who always sat near,[650] whether there was silence.[651] If the answer was affirmative, he prayed Jupiter for a sign, which he described in a formula termed legum dictio,[652] whereupon the attendant declared he saw it.[653] In case of non-appearance of the sign or of a disturbance of the observation, the auspication was deferred to another morning.[654] Before the time of Cicero, however, the ceremony had been so reduced to a pretence as practically to eliminate the possibility of failure.[655]

Both curiate[656] and centuriate[657] assemblies were auspicated. Although for the tribal assemblies the question is more difficult, it seems reasonably certain that whereas a patrician magistrate took the auspices for the comitia tributa,[658] plebeian magistrates (tribunes and aediles of the plebs) did not.[659]

As to whether contiones were auspicated we are not clearly informed. The question concerns those only which were held by patrician magistrates. The auspication of comitia necessarily extended to the contio immediately preceding.[660] It is known, too, that the censors auspicated the lustral gathering of the centuries,[661] hence we may infer that magistrates and sacerdotes were accustomed to take auspices for formal religious assemblies.[662] With these exceptions contiones were doubtless held without auspices by patrician as well as by plebeian magistrates.

III. _Auspicia Publica Oblativa_

If Jupiter had approved the holding of an assembly, the magistrate was not for that reason necessarily done with auspices. Though the impetrativa may have favored, prohibitive oblativa were still possible, for circumstances might cause the god to change his mind so as to forbid what he had previously sanctioned; and the warning omen might come at any time before the act was completed. Sometimes the magistrate himself discovered, or for the accomplishment of his purpose pretended to discover, the evil omen. When for instance Pompey was holding an assembly for the election of praetors, and Cato, a political opponent, offered himself as a candidate, Pompey, seeing the assembly unanimous for this man, declared that he heard a clap of thunder, and thus by an adjournment succeeded in preventing the election.[663] Sometimes the magistrate was informed of the omen by (1) a private person, (2) an augur, or (3) another magistrate. In the first two cases the report was termed nuntiatio, in the third obnuntiatio.[664] Information received from a private citizen the president could credit or not as he saw fit, or he could declare it irrelevant;[665] but the law compelled him to accept the nuntiatio of an augur or the obnuntiatio of another magistrate.

Prohibitive auspicia oblativa included evil omens of all kinds. When in 310 the dictator called the curiae for passing the lex de imperio, it chanced that the Curia Faucia was the first to vote (principium). Now this curia was ill omened because on two earlier occasions it had happened to be principium at a time of great national disaster. The dictator accordingly adjourned the meeting till the following day, when he again summoned it after renewing the auspicia impetrativa.[666] A case of epilepsy, by vitiating the business of the assembly, required an adjournment; and for that reason the malady was called the comitial sickness.[667] In the later republic the chief oblativa had come to be caelestia; and it could happen that the auspicia impetrativa of any magistrate might as oblativa vitiate the comitia of another. For this reason when a higher magistrate was about to hold an assembly, he forbade the taking of auspices by all inferior to him, for fear they might annul his proceedings.[668]

Although the augurs had neither the auspicia impetrativa nor the right to watch the sky for unfavorable omens,[669] they were competent to report (nuntiatio) unexpected oblativa to the magistrates.[670] Their object in attending the comitia accordingly was not only to assist the president with their special knowledge,[671] but also to witness the religious legality of the proceeding. In the latter function the augur derived great influence[672] from the possibility of an investigation into such legality by the augural college and the senate, which might result in the annulment of the act.[673] For this reason witnessing augurs were granted the privilege of adjourning the assembly in case they perceived unfavorable omens.[674] Cicero[675] describes in detail such an adjournment of an electoral assembly of centuries: “Behold the day for the election of Dolabella! The prerogative century is drawn by lot, he (the augur) remains quiet. The vote is announced, he is silent. The first class is called and the announcement made. Then as usual the suffragia (of the equites?) were summoned; then the second class is called. All this happened more quickly than I have told it.

“When the business is over, that excellent augur says, ‘We adjourn to another day.’ O remarkable impudence! What (omen) had you seen? What had you felt? What had you heard?” Antony, who was both consul and augur, presiding over the electoral assembly, allowed the voting to continue till a majority was nearly reached in favor of Dolabella, when, making use of the augural formula, he adjourned the meeting. This procedure was in itself legal; but Antony had from the beginning of the year boasted of his intention to prevent through augury this man’s election. As only magistrates, through their right to the spectio, to be explained hereafter, could with certainty predict an evil omen,[676] it was evident that Antony, acting merely as augur, made a fictitious report.

Augurs were always present at meetings of the curiae,[677] of the centuries,[678] and of the tribes under the presidency of a patrician magistrate.[679] That they attended the meetings of the plebs as well and had the same relation to the plebeian as to the other assemblies is necessarily implied in Cicero’s[680] question, “What shows greater religious power than to be able to grant or refuse to grant the right to transact business with the people or with the plebs?”

If the person who reported the evil omen was not an augur but a magistrate, the president was equally bound to heed it and to dismiss the assembly;[681] and the force of the obnuntiatio was not in any way affected by the relative official rank of the two persons concerned. When accordingly a higher magistrate had set a day for an assembly, he forbade all inferior magistrates not only to take the auspicia impetrativa,[682] but also to watch the sky—de caelo servare—for any purpose on that day, for fear that some omen unfavorable to the comitia might be seen.[683] A consul for instance could prevent a quaestor from scanning the heavens on any particular day; and the senate on the rare occasions when it felt itself sufficiently strong, suspended for a

## particular act of the assembly the right of all magistrates to receive

and to announce unfavorable omens.[684] In the absence of senatorial interference it remained possible for any higher magistrate to scan the heavens—de caelo servare—on an assembly day appointed by another, and to vitiate the comitia by reporting an unfavorable omen. We find accordingly a consul obnuntiating against a colleague[685] and against the pontifex maximus,[686] a praetor against a tribune of the plebs,[687] and a tribune against a consul[688] or a censor,[689] as well as against a colleague.[690]

So certain was it that a magistrate who looked for a bad omen would see one that the expression “to watch the sky” became equivalent to discovering an unpropitious sign. The rule was therefore formulated that “religion forbade the transaction of any business with the people when it was known that the sky was watched.”[691] If accordingly a magistrate announced that he intended to scan the heavens on the day appointed for an assembly, this declaration was in itself sufficient in the ordinary course of events to compel a postponement. In the year 57 Milo, a tribune of the plebs, pushed the custom to extremes by declaring his intention to observe the sky on all comitial days.[692] Strictly the observation had to be made and reported before the assembly met. “Can any one divine beforehand,” Cicero[693] asks, “what defect there will be in the auspices, except the man who has already determined to watch the heavens? This in the first place the law forbids to be done in the time of an assembly; and if any one has been observing the sky, he is bound to give notice of it, not after the comitia are assembled, but before they meet.” In the case belonging to the year 57 referred to above, Milo, the tribune, came into the Campus Martius before midnight in order to anticipate the arrival of the consul Metellus, who wished to hold the elections. The assembly ordinarily met at sunrise, and could not convene after midday. Milo accordingly remained on that day till noon, without seeing the consul. Then Metellus demanded that for the future the obnuntiatio should be served on him in the Forum; it was unnecessary, he said, to go to the Campus before daybreak; he promised to be in the comitium at the first hour of the day. As Milo was coming into the Forum before sunrise on the next comitial day, he discovered Metellus stealing hurriedly to the Campus by an unusual route. The tribune came upon him and served the notice.[694]

The consul’s announcement of intention to watch the sky might be strengthened by a proclamation declaring certain or all comitial days for the remainder of the year to be holidays, on which the people could not legally transact business in assembly.[695]

Although the obnuntiatio doubtless originated in the early republic, it played no considerable part in political strife till after the Gracchi. A great impetus to the abuse of the power was given by the Aelian and Fufian laws, which were probably two plebiscites[696] passed about 150.[697] What features of these statutes were new has not been precisely determined. It is certain, however, that they made possible the condition in which we find the spectio and obnuntiatio before the legislation of Clodius on the subject in 58. As the tribune did not originally have the obnuntiatio, we may infer that in all probability these laws granted him the right to exercise it against patrician magistrates in the way described above. Similarly from the fact that the plebeian tribal assembly was not originally subject to religious obstruction on the part of the government, it is reasonable to conclude that the Aelian and Fufian statutes gave the patrician magistrates the obnuntiatio against that body.[698] It was equivalent to a power of veto, which the aristocracy could now exercise upon tribunician legislation, hence Cicero[699] regards the two statutes as most holy[700] means of “weakening and repressing the fury of the tribunes,” and as the “surest protection of the commonwealth.”[701] Notwithstanding the opinion of Lange,[702] that the obnuntiatio was restricted to legislation, it seems clear from the words of Cicero,[703] as well as from the lack of reference in the sources to such a limitation, that it applied equally to elections. So long, however, as the nobility could depend for support upon the tribunes, it had little need of such a power. But in the last years of the republic, after the tribunician veto had been undermined by Ti. Gracchus and Appuleius Saturninus, and the tribunes were again acting independently of the senate as in the early history of their office, optimates and populares, taking full advantage of the Aelian and Fufian laws, alike exploited the auspices recklessly for partisan objects. Their behavior was a sign of both religious and political disintegration. Vatinius, tribune of the plebs in 59, had the boldness utterly to disregard these statutes;[704] and in 58 the tribune Clodius repealed them in so far as they affected legislation,[705] whereas for elections the obnuntiatio still remained in force.[706] The misuse of auspices for political purposes dates back, according to Livy,[707] to the beginning of the Samnite wars. Although this may be an anticipation of later conditions, there can be no doubt as to the attitude of statesmen toward the custom in the closing years of the Punic wars.[708] In the time of Clodius and Cicero, while some maintained a sincere belief in these ceremonies, doubtless the great majority of public men saw in their use nothing more than political chicanery calculated, by deceiving the multitude, to keep the real power in the hands of a few.[709]

Rubino, J., _Untersuchungen über röm. Verfassung und Geschichte_, 34-106; Nissen, H., _Das Templum_; Mommsen, _Röm. Staatsrecht_, i. 76-116; Marquardt, J., _Röm. Staatsverwaltung_, iii. 397-415; Lange, L., _Röm. Altertümer_, 3 vols, index s. Augures, Auspicia, Inauguratio, etc.; _De legibus Aelia et Fufia commentatio_, in _Kleine Schriften_, i. 274-341; Herzog, E., _Geschichte und System der röm. Staatsverfassung_, 621-30, see also index s. Augures, Auspicien; Müller-Deecke, _Etrusker_, ii. 114-27; Gilbert, O., _Geschichte und Topographie der Stadt Rom im Altertum_, 3 vols., index s. Auguraculum, Augures; Wissowa, G., _Religion und Kultus der Römer_, 450-60; _Augures_, in Pauly-Wissowa, _Real-Encycl._ ii. 2313-44; _Auspicium_, ibid. ii. 2580-7; Aust, E., _Religion der Römer_, index s. Auguraculum, Augurn, Auspicia, etc.; _Iuppiter Elicius_, in Roscher, _Ausführliches Lexikon der griech. und röm. Mythologie_, ii. 656-61; Bouché-Leclerq, A., _Histoire de la Divination dans Antiquité_, iv. 134-285 (sources and modern literature, p. 180 f.); _Augures_, in Daremberg et Saglio, _Dict._ i. 550-60; _Auspicia_, ibid. i. 580-5; Spinazzola, V., _Augures_, in Ruggiero, _Dizionario epigrafico_, i. 778-810; Ruggiero, ibid. i. 950 f.; De Marchi, A., _Il Culto privato di Roma antica_, i. 152 ff., 232 ff.; Valeton, I. M. J., _De modis auspicandi Romanorum_, in _Mnemosyne_, N. S. xvii (1889). 275-325, 418-52; xviii. 208-64, 406-56; _De iure obnuntiandi comitiis et conciliis_, ibid. xix (1891). 75-113, 229-70; _De templis Romanis_, ibid. xx (1892). 338-90; xxi. 62-91, 397-440; xxiii. 15-79; xxv. 93-144, 361-85; xxvi. 1-93 (papers in the last two vols. are on the pomerium); Luterbacher, F., _Der Prodigienglaube und Prodigienstil der Römer_, 2 ed.; Wülker, L., _Die geschichtliche Entwickelung des Prodigienswesens bei den Römern_; Willoughby, W. W., _Political Theories of the Ancient World_, ch. xv.

## PART II

THE ASSEMBLIES

ORGANIZATION, PROCEDURE, AND FUNCTIONS, RESOLUTIONS, STATUTES, AND CASES

##