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]