Talk:Comitia (Nova Roma)
This section is under heavy editing now...
In antiquity there were accepted conventions about the relationship between the senate, the magistrates, and the assemblies. They helped to make that three-sided relationship work smoothly.
First, it's important to remember that we are not talking about a direct relationship between the senate and the assemblies. There was no such relationship: the senate and the assemblies had no direct dealings with one another at all. The magistrates were the intermediaries. The senate gave advice to the magistrates, and the magistrates put proposals to the assemblies. The senate could not put proposals to the assemblies but only advise magistrates to do so.
In general it was considered proper for magistrates to take the advice of the senate before bringing legislative proposals (rogationes) before the assembly. This was not compulsory, and failure to consult the senate did not invalidate a proposal put before the assembly. It was, however, a very strong tradition, and a tribunus plebis would often veto a proposal which had not previously been discussed by the senate.
There were, however, exceptions. Certain types of proposal were understood to be within the exclusive competence of the assembly, and if a magistrate brought such a proposal to the assembly without consulting the senate, he was not considered to have behaved improperly; but equally he would not have been accused of impropriety if he had consulted the senate first. A tribune could not use failure to consult the senate as a reason to veto a proposal of this kind.
Consulting the senate on the merits of a proposal should not be confused with the patrum auctoritas. The patrum auctoritas was a technical device: it was rubber-stamping, rather like the Queen approving Acts of Parliament in the U.K. It was quite separate from any discussion by the senate of whether a proposal was actually a good idea or not.
In our republic today these conventions are not widely known, and in some cases are actually contradicted by written law, and this may partly explain why that relationship doesn't always work so well nowadays.
The patrum auctoritas does, however, have some relevance to the odd situation imposed on us by the lex constitutiva. I shan't bother to re-state here my belief that the procedures set out in chapter I.D of the lex constitutiva are harmful to republic in general: that's not what I want to say in this message. The point I want to raise is simply that, whether these procedures are good or bad, we cannot ignore the fact that they are alien to the ancient republican constitution and therefore create certain difficulties which must be addressed.
These procedures are for amending the lex constitutiva itself. Chapter I.D provides that the lex constitutiva can be amended by a lex enacted by the comitia centuriata; however, such an amendment will not take effect unless ratified by the senate. The effect of this is that an amendment which is enacted by the comitia centuriata but not ratified by the senate is legally valid but ineffective. We need not worry too much about what exactly that means. The point is that the comitia centuriata votes, and then the senate votes aftewards.
This does not mean, of course, that the senate's advice cannot be sought beforehand. But this is where the patrum auctoritas becomes relevant. You see, in the middle and late republic the patrum auctoritas, the technical rubber-stamping which the senate had to do in order for a lex to be valid, was done before the proposal was voted on in the assembly. But in the very early years of the republic it had been given afterwards. Sometimes the senate had refused to give it, probably on the grounds of some technical flaw in the proposal. This had given the senate an effective power to veto legislation which had already been approved by the assembly. Quite soon this was recognized as intolerable, and a lex was passed which required the patrum auctoritas to be given beforehand. This meant that any technical flaws could be fixed before voting, and so the assembly could vote in the confident knowledge that if it approved the proposal, then that proposal would become law.
This was, one can easily see, a very sensible and practical change. The senate is a smaller body than the assembly and much easier to convene and handle. Its meetings can be conducted more efficiently than those of the assembly. It makes sense for a proposal to be checked for technical faults by the senate before being voted on by the assembly, rather than afterwards. It also makes sense to combine that technical checking with a more general discussion of the merits of the proposal, so that the magistrate can make changes based on the senate's advice.
Chapter I.D, though, reverses this change by putting the senate's part in proceedings after the vote in the assembly. But magistrates nonetheless, for the reasons I've mentioned, still regard it as sensible and useful to get the senate's advice before putting proposals to the assembly. So we have an odd situation in which the proposal is put to the senate, and then to the assembly, and then back to the senate again. Okay, it's odd, but is there anything actually wrong with it?
I think possibly there is. You see, it is all very well to say that the first vote in the senate is merely advisory and has no effect on the process itself. Technically this is true, but in practice it is not. If, in the first meeting of the senate, the proposal is approved by a vote of 20 to 5, you can make a safe bet that, if the assembly also approves it, then the second meeting of the senate will approve the proposal by a vote of about 20 to 5. Yes, technically it is only the second vote that has any legal effect, but it is of no practical importance because the first vote has told us what the result is going to be.
So, by the time the assembly comes to vote, everyone knows how the senate is going to vote. If the senate has already voted to approve the proposal, then the vote of the assembly can still make a difference. If, however, the senate has already voted against the proposal, then there is really very little point in the assembly voting at all, because it's clear that the proposal is not going to make it into law even if the assembly approves it. Perhaps the magistrate may not bother to put it to the assembly at all.
Does that really matter? Not a great deal, but it does make a bit of a mockery of the procedure as it is on paper. If the lex constutitiva has some good reason for requiring the senate to give its approval after the assembly and not before, then the practice of having a preliminary discussion in the senate entirely negates whatever that good reason was, because the senate-meeting that really matters will always be the one before the assembly, not the one after. And if, on the other hand, it is actually better to have the senate vote beforehand, then that means the procedure in chapter I.D is imperfect and, since it is being effectively circumvented, should really be changed. Either way, it cannot possibly be sensible to have the senate vote twice on precisely the same proposal.