Talk:Constitution II - MMDCCLII (Nova Roma)

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General commentary

This constitution was published late in mensis Quinctilis L. Equitio Dec. Iunio cos. MMDCCLII a.u.c. by the dictator Fl. Vedius. He had been appointed under chapter III.9 of the constitution then in force, which read:

In times of emergency, as determined by the Senate, a Dictator may be appointed by the Senate, to serve for a term not to exceed that of the emergency, not to exceed six months. The dictator shall function as the supreme magistrate and not be subject to veto or recall by the Senate, and shall hold imperium. After his or her term of office has expired, the actions of the Dictator will be subject to review and final permanent approval by the Senate and Citizens of Nova Roma.

Also relevant was chapter I.4 of the same constitution, which read:

This Constitution may be altered by law passed by one of the comitia; such alterations to this Constitution must be ratified by a vote of two-thirds of the entire Senate before it shall take effect.

After publishing the new constitution, Vedius submitted all his acts as dictator to the senate for its ratification; they were ratified, including the new constitution (which was ratified by a vote of eight in favour to one against).

Vedius made no move to have his acts ratified by the comitia; nor at any time did he submit the new constitution for a vote in any comitia. It was clear that he regarded the new constitution as already being in force. When challenged on the point, he argued that the senate's ratification of the new constitution had been sufficient to give it legal force. Although the old constitution had required the acts of a dictator to be ratified by both the senate and the comitia, the new constitution required ratification by the senate alone. The new constitution had, he argued, been in force at the time the senate had voted, and therefore its vote had been sufficient to ratify the new constitution:

"While the old constitution did, indeed, require the actions of an appointed dictator, the new constitution makes no such condition. At the time the question of the ratification of my actions was being voted on, the new constitution was in force."
(Fl. Vedius, a.d. XV Kal. Sep. L. Equitio Dec. Iunio cos. MMDCCLII a.u.c.)

The logic at first appears circular: if the new constitution acquired legal force upon its ratification by the senate, then it cannot already have been in force when the senate voted. If the old constitution was still in force when the senate ratified the new one, then the senate's ratification cannot have sufficed to give the new one legal force.

It is possible, however, to argue that the new constitution was in force before the vote of the senate. The wording of chapter III.9 of the old constitution - "After his or her term of office has expired, the actions of the Dictator will be subject to review and final permanent approval by the Senate and Citizens of Nova Roma" - could be said to imply that the acts of the dictator did not depend on ratification for their legal force; rather, the acts had legal force from the time of action but were only temporary unless subsequently made permanent by ratification.

There are, however, problems with this argument. The first is one of principle: if the dictator was able under the old constitution to make unlimited changes to the law which would be effective immediately, then the safeguard of subsequent ratification would be meaningless because the dictator would be able simply to remove the safeguard (as indeed Fl. Vedius partly did). The very existence of the safeguard therefore constitutes strong evidence that chapter III.9 was not intended to allow the dictator to circumvent its own provisions.

The second problem is that the old constitution specifically provided, in chapter I.4, a process by which it could be amended, and that process required the participation of the comitia. This is, if anything, even stronger evidence that chapter III.9 was not intended to allow the dictator to amend the constitution without the participation of the comitia. This indeed tends to be confirmed by the fact that the new constitution (chapter I.D) did specifically provide for itself to be amended by a dictator.

A more likely construction of chapter III.9 is that the dictator was never intended to be able to legislate with immediate effect. He is said to be a "supreme magistrate", but this does not imply any legislative power since magistrates are executive rather than legislative officers (except for the very limited legislative power of the ius edicendi). The only other definition of his powers is that he is said to hold imperium, which again carries no suggestion of legislative power. If this is correct then the final sentence is readily explicable: his acts would necessarily be temporary unless made permanent by some body or bodies with legislative power.

It seems very likely, therefore, that the old constitution remained in force at the time when the senate was called to ratify the new constitution. The senate's ratification was therefore insufficient to give full legal force to the new constitution; and, since the new constitution was never submitted to the comitia for final ratification, the necessary conclusion is that the new constitution was never technically valid.

Nonetheless, after some initial protest at this procedural omission, the new constitution was soon universally accepted as valid. The problem has now been unintentionally solved by the lex Equitia de constitutione corrigenda which re-enacted the full constitution, including all amendments since its initial publication by Fl. Vedius, using the full and correct procedure for constitutional amendment.

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