--- g_iulius_scaurus <
gfr@...> wrote:
> >
> > > Contumacy is an offence ipso facto. There is no
> > > need for a trial for
> > > contumacy, since it is incurred by refusing the
> > > poena and not
> > > appealing to the Comitia Centuriata.
> >
> > Clarification question: Let's suppose someone is
> > tried and convicted for the crime of Iniuria. In
> the
> > praetor's formula the proposed sentence is a
> monetary
> > fine. The reus refuses to pay the fine. The reus
> in
> > that case would obviously be guilty of contumacy.
> So
> > the praetor issues an edict imposing a one year
> > exactio on the reus. Is it just that a praetor
> could
> > do so in a case where he had discretion to include
> > exactio in the original formula but chose not to
> do
> > so. Could a formula include a proposed punishment
> > should the reus later be guilty of contumacy? How
> > does this affect those crimes in which exactio is
> not
> > permitted in the formula?
>
> The suggestion to think of it as a form of contempt
> of court is apt.
> There is no cause to specify a penalty for contumacy
> in the original
> formula, because the crime has not yet been
> committed. It is
> committed only when the convicted reus refuses
> either to appeal his
> conviction to the comitia or accept the poena (or
> refuses to accept
> the poena if the comitia rejects the appeal). In
> that case the
> praetor is authorised to adjudge the reus ipso facto
> contumacious and
> impose the poena for contumacy.
>
My point is that contumacy can be punished by up to a
one year exile, even in cases where the praetor's
formula does not provide for exactio, which is why I
suggested to include in the formula the penalty that
shall be imposed for contumacy if it occurs. I don't
think that contumacy should carry a higher penalty
than the highest penalty possible in the original
formula.
As you have probably been able to tell from some of my
previous posts, I like examples, so here's another
one. Let's assume that one citizen is charged with
bribery to influence a comitial vote. In the
praetor's formula it is specified that upon conviction
the sentence will be either declaratio publica. The
reus refuses to make the declaration and the praetor
issues an edict finding contumacy and imposing the
penalty of exactio for 1 year, under the contumacy
clause.
Would our jurisprudence, under either the Lex Salicia
Iudiciaria or the Lex Salicia Poenalis, allow a
praetor to write a formula that says something like
this: "If Lucius is found to have bribed Cicero to
vote for him for consul, then Lucius must make a
declaratio publica to the satisfication of the
praetors. Should Lucius be convicted and refuse to
make the declaratio, exactio for one year shall be
automatically imposed."
I would also point out that there are only two
prescribed types of penalties for which contumacy
could apply, namely declaratio publica and multa
pecuniaria. Inhabilitatio and exactio would be
directly imposed by the magistrates.
> > > > > XIII. Definition of Poenae:
> > > > >
> > > > > Article XVII of the Lex Salicia Iudiciaria
> is
> > > amended, to wit:
> > > > >
> > > > > "XVII. In those cases where the laws of the
> > > Republic of Nova Roma
> > > > deem
> > > > > it necessary, the praetor's formula shall
> > > include one or several of
> > > > the
> > > > > following penalties to be inflicted upon a
> > > convicted reus:
> > > > >
> > > > This amendment removes the praetor's
> discetion.
> > > The Lex Salicia
> > > > Iudiciaria reads: "In those cases where the
> laws
> > > of Nova Roma or the
> > > > praetor's sense deem it necessary". I can
> > > understand that phrase
> > > > being dropped for a criminal proceeding, but
> by
> > > removing it
> > > > altoghether, it seems to apply to the
> praetor's
> > > discretion in what
> > > > could be termed a "civil" case.
> > >
> > > This is a criminal rather than a civil code.
> > >
> >
> > Agreed, but it amends the Lex Salicia Iudiciaria,
> > which applies not only to these "criminal" cases,
> but
> > also to those that would be considered "civil" in
> > another court setting. The Lex Salicia Iudiciaria
> > sets up Nova Roman's court system and as stated in
> its
> > clause on Jurisprudence can be applied even to
> those
> > cases which no current law covers. That being the
> > case, I think it inadvisable to remove the phrase
> "or
> > the praetor's sense". Perhaps a better solution
> would
> > be for it to be phrased in such a way as to
> exclude
> > the praetor's sense from those matters that are
> > classified as crimes. I would have no objection
> to
> > that.
>
> What sort of poena for a criminal offence not
> specified in the Lex
> Poenalis do you have in mind being imposed under the
> Lex Salicia
> Iudiciaria? The only sense in which this limits
> praetorian discretion
> is by specifying the range of penalties which the
> praetor can include
> in the formula in any criminal case. I rather
> suspect that a few
> people will breathe easier knowing that this section
> prohibits the
> occasional praetor from deciding the appropriate
> poena is for his
> lictors to remove the rods from their fasces and
> thrash the reus
> soundly with them (which was a poena available to
> historical Roman
> praetors).
>
You have missed my point here. I wasn't referring to
any criminal penalties imposed by the Lex Salicia
Iudiciaria. I was referring to it being used in what
is essentially more of a dispute between parties not
covered by the defined criminal laws. If the
"praetor's sense" clause is removed from the Lex
Salicia Iudiciaria then the praetor is bound to the
penalties explicitly in the laws of Nova Roma, "In
those cases where the laws of the Republic of Nova
Roma deem it necessary, the praetor's formula shall
include one or several of the
following penalties to be inflicted upon a convicted
reus:" This leads to the absurb logical conclusion
that a preator would convene a tribunal, find the
individual guilty, and then be unable to impose any
penalty as it would not be a case "where the laws of
Nova Roma deem it necessary".
> > III.1.f does specifically define provocatio as one
> of
> > the rights of suffragium subject to being removed.
> >
> > The former definiton of inhabilitatio in the Lex
> > Salicia Iudiciaria is as follows: "INHABILITATIO:
> the
> > convicted reus shall be desqualified to vote, to
> hold
> > a magistracy or to exert a certain right for a set
> > period of time or until a certain condition is
> met;
> > any condition or time period must be explicitly
> stated
> > in the formula."
>
> Look at the actual forms of inhabilitatio
> specifically prescribed in
> the various poenae; none provide for abrogation of
> provocatio for the
> instant conviction (in fact the Lex Salicia Poenalis
> explicitly
> reaffirms this right) and it occurs otherwise only
> in connection with
> exile (temporary or permanent loss of citizenship).
>
I saw no such guarantee in the Lex Salicia Poenalis.
Which clause of the lex are you referring to?
Several of the forms of inhabilitatio say "Some or all
rights of suffragium and honores" for some specific
period of time. All rights of suffragium would
necessarily include provocatio as that is defined as
one of the rights of suffragium.
> > > > > XV. SOLLICITUDO (Electronic Harassment)
> > > > >
> > > > > >
> > > > > C. The praetor's formula may include any or
> all
> > > of the following
> > > > > poenae:
> > > > >
> > > > >
> > > > > 2. MVLTA PECVNIARIA, compelling the reus to
> pay
> > > an amount to the
> > > > sum of
> > > > > up to the sum of fifty dollars ($.50.00) to
> the
> > > Aerarium Publicum;
> > > >
> > > > Grammatical suggestion: strike the first "to
> the
> > > sum".
> > > >
> > > > Specify that the fine is $50.00US.
> > >
> > > That defeats the idea of tailor the poena to the
> > > offence.
> > >
> >
> > My suggestion would not thereby mean that a fine
> of
> > $50.00 is always imposed. It would still say "up
> to
> > the sum of fifty dollars". I would like the type
> of
> > currency to be specified, so there are no absurd
> > results in those countries that use the dollar as
> > their currency. Two citizens, one Canadian, one
> > America, both fined 50 dollars, would be
> inequitable.
> > 50 Canadian dollars would not be the same amount
> as 50
> > American dollars.
>
> I gladly take the hit for this. I wrote this
> section of the poenae
> and the problem of currency specification you point
> out simply didn't
> occur to me at the time (nor did it to my
> non-American colleagues, I
> must also admit). My only reservation about L.
> Sicinius' suggestion
> of specification in NR currency is that actors who
> have won would not
> neccessarily be pleased being compensated in
> something other than a
> hard currency and I can imagine a reus trying to pay
> in NR currency if
> that were the specification.
I share your reservation.
> > > > The phrase "obstructs a comitial vote" needs a
> > > more precise
> > > > definition. A citizen who requests that a
> > > magistrate interposes
> > > > intercessio on his/her behalf on the convening
> of
> > > a comitia could
> > > > conceivably be construed as "obstruct[ing] a
> > > comitial vote".
> > >
> > > By definition, a request for intercessio is
> > > constitutional and, thus,
> > > not obstruction.
> >
> > Even to an overzealous, strict interpretationist
> > praetor? ;)
>
> There is no legal system ever crafted by man that
> was absolutely
> impervious to the malefictions of a determinedly
> wrongheaded arsehole.
> I count on the unlikelihood that such a decision by
> a praetor would
> escape intercessio by his colleague, the consuls,
> and the tribuni
> plebis in the hypothetical you propose.
>
Granted that no code is or can be perfect and cover
every conceivable matter. Nonetheless, I believe that
we should be precise when we have the opportunity to
do so.
If the obstruction of a comitial vote were the only
issue I had with this lex, I would still vote for it.
However, I think its other flaws induce me to vote
against it as currently promulgated.
That said, I would state that I commend the efforts of
those invloved in writing this law, and agree that a
criminal code is necessary. I just see too many
defects in this one at present.
Besides Cordus can't say that I was silent on those
issues that I have with it. :)
Lucius Quintius Constantius
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