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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