Noctes Atticae

A passage from the book of the augur Messala, in which he shows who the minor magistrates are and that the consul and the praetor are colleagues; and certain observations besides on the auspices.

IN the edict of the consuls by which they appoint the day for the centuriate assembly it is written in accordance with an old established form:

Let no minor magistrate presume to watch the skies.

[*](That is, for omens.) Accordingly, the question is often asked who the minor magistrates are. On this subject there is [*](This and the following verbs seem to be in epistolary past tenses; that is, Gellius uses the tenses which would represent the time from the standpoint of his future readers.) no need for words of mine, since by good fortune the first book of the augur Messala On Auspices is at hand, when I am writing this. Therefore I quote from that book Messala's own words: [*](Fr. 1, Huschke; 1a, Bremer (i, p. 263).)

The auspices of the patricians are divided into two classes. The

v2.p.453

greatest are those of the consuls, praetors and censors. Yet the auspices of all these are not the same or of equal rank, for the reason that the censors are not colleagues of the consuls or praetors, [*](Explained in § 6, below.) while the praetors are colleagues of the consuls. Therefore neither do the consuls or the praetors interrupt or hinder the auspices of the censors, nor the censors those of the praetors and consuls; but the censors may vitiate and hinder each other's auspices and again the praetors and consuls those of one another. The praetor, although he is a colleague of the consul, cannot lawfully elect either a praetor or a consul, as indeed we have learned from our forefathers, or from what has been observed in the past, and as is shown in the thirteenth book of the Commentaries of Gaius Tuditanus; [*](Fr. 8, Peter2; 2, Huschke; id., Bremer (i, p. 35).) for the praetor has inferior authority and the consul superior, and a higher authority cannot be elected by a lower, or a superior colleague by an inferior. At the present time, when a praetor elects the praetors, I have followed the authority of the men of old and have not taken part in the auspices at such elections. Also the censors are not chosen under the same auspices as the consuls and praetors. The lesser auspices belong to the other magistrates. Therefore these are called 'lesser' and the others 'greater' magistrates. When the lesser magistrates are elected, their office is conferred upon them by the assembly of the tribes, but full powers by a law of the assembly of the curiae; the higher magistrates are chosen by the assembly of the centuries.

[*](On these comitia see xv. 27, below.)

From this whole passage of Messala it becomes clear both who the lesser magistrates are and why they are so called. But he also shows that the praetor

is a colleague of the consul, because they are chosen under the same auspices. Moreover, they are said to possess the greater auspices, because their auspices are esteemed more highly than those of the others.

Another passage from the same Messala, in which he argues that to address the people and to treat with the people are two different things; and what magistrates may call away the people when in assembly, and from whom.

THE same Messala in the same book has written as follows about the lesser magistrates [*](Fr. 2, Huschke: id., Bremer (i, p. 263).)

A consul may call away the people from all magistrates, when they are assembled for the elections or for another purpose. A praetor may at any time call away the people when assembled for the elections or for another purpose, except from a consul. Lesser magistrates may never call away the people when assembled for the elections or another purpose. Hence, whoever of them first summons the people to an election has the law on his side, because it is unlawful to take the same action twice with the people (bifariam cum populo agi), nor can one minor magistrate call away an assembly from another. But if they wish to address the people (contionem habere) without laying any measure before them, it is lawful for any number of magistrates to hold a meeting (contionem habere) at the same time.

From these words of Messala it is clear that cum populo agere,

to treat with the people,

differs from contionem habere,

to address the people.

For the former means to ask something of the people which they by their votes are to order or forbid; the latter, to speak to the people without laying any measure before them.