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
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.