Part 2 — CHAPTER VII THE CONTIO

Contio, derived from conventio,[766] originally signified “a coming together,” “a meeting” of any kind. In an early stage of its history it must have been a general term for public assembly, especially comitia. This meaning appears most clearly in a passage of Macrobius,[767] in which, quoting the treatise of Lucius Julius Caesar on the Auspices, he declares (1) that on market days a contio cannot be called, (2) in other words, that on such days business cannot be transacted with the people, (3) that for this reason the Romans cannot hold comitia on market days. Cicero,[768] too, states with reference to a certain market day that “for two days no contio can be held”—for the day of the market and the one following. From the context it is evident that he, like Macrobius, is thinking of comitia, which, as is well known, could not legally meet on market days.[769] Doubtless in the conservative nomenclature of the pontiffs and augurs, quoted by Macrobius and Cicero, contio still included comitia; it must in fact have applied more particularly to the formal, voting assembly; for informal meetings were not forbidden on such days.[770] But in the time of Cicero this use of the word was obsolete excepting in the archaic formulae of the sacerdotal colleges. In the political language of his age contio had come to be restricted to the non-voting assembly—either organized[771] or more commonly unorganized—summoned by a magistrate or a sacerdos,[772] and in this sense it will be used in the present volume. Still farther removed from its origin is the meaning “oration” delivered to the people in such a gathering.[773]

Because of the passive character of this form of assembly the magistrate admitted all who wished to attend, without inquiring whether they were citizens and in full possession of their political rights.[774] It might be composed either of soldiers[775] or of civilians, presided over in the field by the commander, in the city by any magistrate who had a right to hold comitia in their own or in another’s name, including the king,[776] interrex, dictator, master of horse, and tribunes of the plebs;[777] also the quaestors[778] and aediles,[779] the pontifex maximus and the rex sacrorum.[780] Necessarily the right belonged as well to all extraordinary magistrates, as the decemviri legibus scribundis, who possessed consular power within the city.[781] But promagistrates and any others who held an exclusively military imperium could summon neither the comitia nor the civil contio.[782] The censors held contiones for the taking of the census,[783] for imposing fines,[784] and for the lustration. In the last-named function the assembly was also called comitia centuriata or exercitus urbanus.[785] The quaestors, the curule aediles, and the plebeian aediles exercised their jurisdiction in contiones and comitia, which for this purpose they called not in their own name but by permission of a higher magistrate.[786]

As the contio did not, like the comitia, theoretically include all the people, any number of magistrates could simultaneously hold meetings of the kind.[787] A minor officer had no right to take charge of, or to summon the people from, a contio called by another. A higher officer exercised this right against a lower; the consul, for instance, could take the meeting from the hands of any ordinary patrician magistrate,[788] though not of a tribune of the plebs. No one dared disturb a meeting of any kind under the presidency of the latter,[789] and at least in the late republic a tribune sometimes forbade a patrician magistrate to address an assembly;[790] but otherwise consuls and plebeian tribunes might hold simultaneous contiones.[791]

Sometimes the contio was summoned merely to witness a public act. The consuls called the people together outside the walls by the sound of the war-trumpet to see an execution for treason. On this occasion the citizens were arrayed in centuries on the Campus Martius, in an assembly called at once comitia centuriata and contio.[792] We hear of a similar execution of an astrologer or magician outside the Esquiline gate, according to a primitive custom;[793] and it was most probably in a contio that the supreme pontiff scourged to death a man who had wronged a Vestal.[794] The people gathered in the same kind of meeting to witness an oath,[795] a judicial process,[796] or the levy of a fine.[797] But it was preëminently the listening assembly, hence the definition offered by Gellius,[798] “To hold a contio is to address the people, without calling on them for a vote.” It applied not only to the isolated meeting summoned to hear edicts, reports, communications of every kind, including arguments and appeals for or against a given policy,[799] but also to the preparatory stage of the voting assembly whether addresses were delivered or not. Occasionally in early times there was speaking on the merits of candidates at the opening of an electoral assembly, and the voting was sometimes interrupted for the purpose.[800] Before the age of Cicero this rare proceeding had disappeared. In his day the canvass for candidates had been made before the holding of the preliminary contio, which accordingly was brief and formal. Because much time was required for the voting of the centuries,[801] speaking on the day of their assembly had to be minimized. For this reason the contio for advising the adoption of a resolution by the comitia centuriata was held on an earlier day. Such was the meeting summoned in the Campus Martius by the consul P. Lentulus for the purpose of urging the people to vote in the ensuing centuriate assembly for the recall of Cicero.[802] In judicial proceedings before any of the assemblies the testimonies of witnesses and the pleadings occupied the greater part of the time, and for this reason judicial assemblies were frequently termed simply contiones. They will be described in a later chapter.[803]

Informal contiones could be called at any time while the sun was up,[804] with or without[805] an interval between the summons and the meeting, and in any place[806] at the pleasure of the person who convoked them. In public assemblies of every kind the people remained standing throughout the session.[807] The magistrate who was about to summon an auspicated contio repaired to the templum which he intended to occupy during the meeting.[808] After taking the auspices there, and finding the omens favorable, he ordered the crier to call the citizens.[809] His directions to this assistant were prefaced by a solemn wish that the gathering of the citizens might be well, fortunate, auspicious, and advantageous to the Roman people, the commonwealth, himself, his colleague or colleagues, and his magistracy.[810] After first issuing the summons from the templum the crier repeated it while making the circuit of the walls.[811] Meantime the presiding officer invited the senators, his colleague or colleagues, and the various other magistrates to assist him with their presence and advice.[812] The invitation was extended even to opposing tribunes;[813] and on the other hand a presiding tribune was especially anxious to secure the presence and favorable influence of patrician magistrates and of the leading men of the state.[814] When the president saw his friends about him and the people gathered, he called the contio to order,[815] and proceeded to open the meeting with a prayer.[816] In the case of a resolution to be brought before the assembly the magistrate was accustomed first to submit it to the senate, which considered the bill and perhaps suggested alterations;[817] but sometimes measures were brought into the comitia without this senatorial deliberation.[818] In the contio the presiding officer had power to exclude or to limit discussion of his proposals. Ordinarily he found it advantageous to instruct the people regarding the subject on which they were to vote; and it was for this purpose that one or more contiones were held previous to the comitia. The right to address the people belonged primarily to the presiding magistrate. Although the king enjoyed the superior right, the notion that in the regal period no private persons spoke in the assembly seems to be unwarranted.[819] The custom of the republic prescribed that the president should grant the privilege not only to his colleagues[820] but also to all the higher magistrates.[821] In some cases the invitation was extended to senators[822] and to other distinguished private persons.[823] The tribunes sometimes gave the privilege to freedmen,[824] to foreign kings,[825] and to ambassadors.[826] The early republic did not allow women to be present in political meetings;[827] but in time this severity began to relax. Livy[828] represents the elder Cato as saying that his generation permitted women to take part in affairs of state and to interfere in contiones and comitia—evidently an exaggeration, as the context proves that the women referred to did not actually come into the assembly, and the speaker intimates that custom disapproved of their doing so. From the time of the Gracchi they occasionally spoke in public. Dio Cassius[829] states that Tiberius Gracchus brought his mother and children into a contio to join their entreaties with his; and according to Valerius Maximus[830] a tribune of the plebs required Sempronia, sister of the Gracchi, to come forward in a similar meeting and give her opinion on the subject under consideration. In the year 43 some ladies attended a contio to protest against being taxed by the triumvirs. Hortensia spoke for the complainants.[831] It was an accepted custom that no tribune should intercede against a measure till an opportunity had been afforded private persons to speak for or against it.[832] When after the victory of Pydna a tribune of the plebs had introduced a motion to grant a triumph to Aemilius Paulus, and the debate had been thrown open to the assembly, all for a time remained silent, for no doubt was entertained as to its passing; but finally Servius Galba, who as a military tribune had served under Paulus and was his enemy, came forward and obstructed the measure by a long harangue.[833] Although the president could, and perhaps often did, throw the debate open to the citizens in this way, he was not compelled to do so. The tribunician assembly was more deliberative than any other—a circumstance which accounts for its designation as a concilium.[834] Those invited to speak, if citizens, had to be of good standing and not under disqualification through a special law or usage. The rex sacrorum was prohibited not only from holding any other office but also from addressing an assembly.[835] The spendthrift[836] and the man condemned for extortion[837] were likewise forbidden. When the right was granted as a special distinction, the receiver was probably placed thereby on a footing of equal dignity with the magistrates.[838]

The president could also compel a citizen to speak. The holder of the imperium had a right to summon any man into a public meeting, and order him to answer any question put to him.[839] Tribunes of the plebs, however, who lacked the power of summoning, exercised this coercive function against citizens and even consuls, not through a direct right but by a usurpation, probably based on their power to arrest and imprison.[840]

The president extended permission by asking a man to give his opinion on the subject under discussion, and it was not in good order even for a magistrate to address the assembly unless invited, though he had ground for resentment if he was passed over in favor of private persons.[841] When Caesar as consul, 59, brought his agrarian bill before the comitia without the consent of the senate and in spite of its silent disapproval,[842] he first asked his colleague whether he had any objection to the proposal. Bibulus offered none but declared that he would allow no innovation during his consulship. Thereupon Caesar begged him for support, and requested the people to join in the entreaty, saying, “You will have the law on the sole condition that he is willing.” Then Bibulus, answering in a loud voice, “You will not have this law the present year, even if all of you want it,” left the assembly. Slighting the other magistrates, Caesar invited Pompey and Crassus to address the meeting, though they were but senators and therefore, as contrasted with magistrates, merely private citizens. After Pompey had spoken at length, commending the details of the law, Caesar asked if he would support it against opponents, at the same time requesting the people to beg of him this favor. They did so, doubtless by acclamation; and Pompey, greatly flattered because the consul and the people besought help of him, a private citizen, promised to stand by the law.[843]

A magistrate spoke from the platform, a private person from a lower position, presumably from one of the steps; for the chairman to bring a private speaker upon the stage was a cause of offence to his colleagues.[844] When the president granted an opportunity to speak, he had a right to fix the amount of time to be used. In the debate on the law for assigning provinces to Caesar and Pompey, 55, the presiding tribune granted one hour to Favorinus and two hours to Cato, both opponents of the measure.[845] The speaker could use the time in whatever way he pleased; a few persons by concert might waste the whole day in trivialities, as is sometimes done in the senate of the United States of America, so as to prevent voting on the subject for that date. In the case above mentioned Favorinus, doubtless for lack of real argument, exhausted his hour in lamentation over the shortness of the time allowed him,[846] and Cato spent his two hours on irrelevant or minor matters, merely that he might be silenced by the president while still appearing to have something to say. He persisted in speaking accordingly till an officer dragged him from the rostra and ejected him from the Forum. Even then he returned several times to interrupt the proceedings with his shouting.[847] If the speaker approved the measure, he might close with the words, “This law of yours and your purpose and sentiments I praise and most heartily approve”;[848] or more formally, “In my opinion this bill as presented ought to be passed, and may it prove well, auspicious, and fortunate both to yourselves and to the republic”;[849] or if opposed to the proposition, he might conclude with this form of disapproval, “It is my judgment that this law should by no means be repealed.”[850]

Sometimes the magistrates were invited in the order of their rank and afterward private citizens; in other cases, especially in tribunician contiones, private persons were called first that they might speak with perfect freedom, uninfluenced by the opinion of their magistrates.[851] As the president had absolute control, he could alter the usage to suit his own interest, and could certainly reserve to himself the advantage of speaking last.[852] It often happened that there was not enough time in one day for the discussion of a question. In that case the magistrate adjourned the meeting to a specified date.[853]

After the deliberation, or after the formality of opening the contio which was merely preliminary to the comitia, the president ordered the assembly to form into voting groups—curiae, centuries, or tribes. He could say, for instance, “I order you to take your proper places in the comitia centuriata,”[854] or more generally, “If you think fit, quirites, move apart (into your voting groups).”[855] At the same time he ordered the departure of all who lacked the qualification for voting.[856] The lictors of the magistrates with imperium and the beadle (viator) of the tribune attended to clearing away the unqualified.[857]

Schulze, C. F., Volksversammlungen der Römer, 141 ff., 243 ff.; Rubino, J., Röm. Verfassung und Geschichte, 240-53; Lange, L., Röm. Altertümer, ii. 715-23, and see indices s. v.; Mommsen, Th., Röm. Staatsrecht, i. 191-209; iii. 370-8, and see index s. v.; Willems, P., Droit public Rom. 158 f.; Herzog, E., Röm. Staatsverfassung, i. 632-6, 1057 f., and see index s. v.; Karlowa, O., Röm. Rechtsgeschichte, i. 48 f., 379-81; Madvig, J. N., Verf. u. Verw. d. röm. Staates, i. 219; Soltau, W., Altröm. Volksversammlungen, 37 ff.; Humbert, G., Contio, in Daremberg et Saglio, Dict. i. 1484 f.; Liebenam, W., Contio, in Pauly-Wissowa, Real-Encycl. iv. 1149-53; Ruggiero, Diz. ep. ii. 1185, s. Contio; Lodge, G., Lex. Plaut. i. 307, s. Contio; Forcellini, Tot. Lat. Lex. ii. 349 f., s. Concio; Dupond, A., Constitution et magistratures Rom. 60-3; Ihne, History of Rome, iv. 40-2.