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.