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: