Lex Salvia iudiciaria (Nova Roma)

PRAEFATIO.

The intent of this law is to establish a judicial system in Nova Roma, setting the legal procedures that must be followed to present a case to a court and to constitute that court. This judicial system shall be based on the imperium of the praetores, thus intending to fulfill article IV.A.3.b. of the Constitution of Nova Roma.

These procedures are based on the Roman republican procedural model, both because it probably is the model that best suits Nova Roma and because it is the basis for all the procedural systems of modern Western nations. Some concessions to Nova Roma's particular structure have had to be made; but, in spirit, it follows the ancient Roman procedure.

PARS PRIMA: DE PETITIONE ACTIONIS.

I. Any citizen of Nova Roma shall be able to bring an action against another citizen of Nova Roma. The plaintiff shall be addressed in this law as "actor". The defendant shall be addressed as "reus".

II. The actor must announce the action he is intending to exert to one of the praetores ("editio actionis"), and then the actor must ask the praetor to start the procedure ("petitio actionis"). The praetor shall decide, within 72 hours, if the petitio actionis shall be presented to a court or if it shall be dismissed. A praetor can dismiss a petitio actionis if and only if one of the following cases applies:

A. The praetor has no competence in the issue.

Example: a praetor can not mediate between two foreign parties, for his competence is limited to the citizens of Nova Roma.

B. The parties are not sui iuris in Nova Roma.

Example: a minor can not play the part of an actor.

C. The claim is incongruent.

Example: "Ticius must be expelled from Nova Roma because he is bearded" is an incongruent claim, for it is not supported by law, precedent or common sense.

III. If the claim is dismissed by the praetores, the actor shall be able to present his case again to the praetores in the future, waiting for two new praetores to be elected by the Comitia if necessary.

IV. If the claim is approved by the praetores, it shall be presented to a court of justice defined according to this law. The reus shall be informed of the nature of the claim presented against him and of the identity of the actor within thirty-six (36) hours after the claim's approval.

PARS SECVNDA: DE FORMVLA.

V. Once a claim has been accepted by a praetor, that same praetor shall prepare a formula to present to the iudices. The formula shall consist of a logical statement that instructs the iudices on the decision they must take. The formula shall be structured into four parts: institutio iudicis, intentio, demonstratio and condemnatio. An explanation of each part follows:

A. INSTITVTIO IVDICIS: This clause appoints a certain iudex to judge the case (see below).

B. INTENTIO: This part expresses the claim of the actor; i.e., it shall express what the actor seeks by petitioning the praetor. There are two kinds of intentio: intentio certa, when the facts that lead to the actor's claim are so obvious that they do not need to be proved, and intentio incerta, when the actor must prove the facts that justify his claim.

Example: Intentio Certa: "According to the contract signed by Titius..." Intentio Incerta: "If it is proved that Ticius owes Gaius 1,000 sestertii, Gaius shall pay Ticius that same amount".

C. DEMONSTRATIO: This is the clause that further defines an intentio incerta.

D. CONDEMNATIO: This is the clause that allows the iudices to condemn or absolve.

Example: a formula could be something like this: "Let Sulpicius be the iudex. If it is proved that Ticius owes Gaius 1,000 sestertii, you, iudex, shall condemn Ticius to pay 1,000 sestertii to Gaius; else, you shall acquit Ticius."

The clauses would be: Institutio Iudicis: "Let Sulpicius be the iudex." Demonstratio: "If it is proved that ..." Intentio: "... Ticius owes Gaius 1,000 sestertii ..." Condemnatio: "... you, iudex, shall condemn Ticius to pay 1,000 sestertii to Gaius; otherwise, you shall acquit Ticius."

VI. To write down a formula, a praetor shall use one of these three sources as a basis:

A. Lex: the intentio and the condemnatio shall never be in disagreement with the current laws of Nova Roma. They must follow these laws when the situation is explicitly treated by them.

B. Iurisprudentia: in those cases where the laws do not present an explicit treatment of a certain situation, a praetor shall create iurisprudentia (jurisprudence) applicable to all similar situations. Iurisprudentia is an expression of the Imperium of the praetor, and it has the same legislative power as a praetorial edictum. Because of this, laws approved by the Comitia shall always supersede iurisprudentia, and a certain praetor can alter previous iurisprudentia through an official edictum whenever common sense dictates that such a course of action is necessary.

PARS TERTIA: DE IVDICIBVS.

VII. Once the formula is ready, iudices (judges) shall be appointed from the album iudicum, a list of all the citizens that can legally judge a case. The album iudicum shall include the names of all the assidui citizens that have been citizens of Nova Roma for over a year.

VIII. The number of iudices that shall make up the tribunalis (court of justice) for a certain case shall be decided by the praetor according to the following guidelines:

A. The tribunalis shall be composed of ten (10) iudices whenever the intentio includes accusations of laesa patria (seriously threatening the well-being of the Republic), bribery, embezzlement of public funds, prevarication, electoral fraud, attacks to dignitas, slander or libel, or whenever the sententia might imply the loss of citizenship for one of the parties.

B. In all other occasions, the tribunalis shall be composed of a single iudex.

IX. The praetor shall aleatorily take a number of names equal to the number of iudices from the album iudicum. The following considerations apply:

A. If the praetor considers that some of the iudices thus appointed are obviously related by ties of interest to one of the parties, then the praetor shall, at his own discretion, dismiss those iudices and cast lots to appoint different iudices from the album iudicum.

B. A citizen thus appointed to a court shall be able to ask for an exemption from that judicial work if there are factors that do not allow him to serve in that position. The praetor must be asked for that exemption within thirty-six (36) hours of the official announcement of that appointment; the praetor shall grant that exemption at his own discretion, or he shall deny it, thus forcing the appointed iudex to serve or face an accusation of contempt.

C. Each party shall be able to dismiss a maximum of three (3) iudices, forcing a new iudex to be aleatorily taken from the album iudicum with each veto. Once both parties agree with a certain group of iudices, or both have already used their three vetoes, the remaining iudices shall be the final iudices, unless one of the preceding paragraphs applies.

D. If both parties can agree on a certain citizen(s) of Nova Roma to judge their case before a definitive group of legal iudices has been appointed, then the praetor shall include that citizen (or those citizens) among the iudices for the current case.

PARS QVARTA: DE IVDICIO

X. Once a tribunal has been appointed, the praetor shall inform the iudices of the formula that they shall apply. The praetor shall decide if the trial is going to be conducted under the public scrutiny or, should the dignitas of innocents be at stake, declare a secret summary and move the trial away from public scrutiny.

XI. Any of the parties can choose to appoint an advocatus (advocate or barrister) to speak for them in front of the iudices, or they can choose to speak by themselves. An advocatus shall not receive a fee for his services.

XII. The actor shall present evidence to back his demands, and then the reus shall present evidence to back his defense. Evidence shall consist of anything that is relevant to the case, including written texts, visual evidence, and the statements of witnesses or experts. In the case of statements, each party shall have the right to ask questions of the witnesses and experts presented by the other party.

XIII. The praetor shall be the final judge to determine what pieces of evidence are relevant to the case.

XIV. Once both parties have presented their evidence, each party shall have the opportunity to make one final statement in front of the iudices, with the actor speaking in the first place. Then the praetor shall call for a sententia (sentence) from the iudices, according to paragraph XV, reminding the iudices that, in case of doubt, they must *not* condemn the reus.

PARS QVINTA: DE SENTENTIA

XV. Once the praetor has called for a sententia, the iudices shall have seventy-two (72) hours to deliberate; within those seventy-two (72) hours, the iudices shall individually issue one of the following sentences:

A. ABSOLVO: if the tribunal's majority decision is "absolvo", the reus shall be acquitted.

B. CONDEMNO: if the tribunal's majority decision is "condemno", the reus shall be condemned according to the formula previously established by the praetor.

C. Should there be a draw in the tribunal's votes, the reus shall be acquitted.

XVI. Once all the iudices have issued their sententiae, the praetor shall immediately inform the parties of the sententia, and shall enforce any penalties through his imperium.

PARS SEXTA: DE POENA

XVII. In those cases where the laws of Nova Roma or the praetor's sense deem it necessary, the formula shall include one or several of the following penalties to be inflicted upon a convicted reus:

A. MVLTA PECVNIARIA: a fine payable to the treasury of Nova Roma. The convicted reus shall be counted among the capite censi until the fine has been paid.

B. DECLARATIO PVBLICA: the convicted reus shall publicly recognize the actor's intentio, in any public fora indicated in the formula. The convicted reus shall suffer inhabilitatio (see below) until the declaration has been made to the praetor's satisfaction.

C. INHABILITATIO: the convicted reus shall be disqualified from voting, holding a magistracy, or exerting 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.

D. EXACTIO: the convicted reus shall lose his Novoroman citizenship and all the rights and duties associated with it for a set (but not necessarily limited) period of time, or until a certain condition is met; any condition or time period must be explicitly stated in the formula.

PARS SEPTIMA: DE PROVOCATIONE AD POPVLVM

XVIII. In those cases where a sententia implies a loss of citizenship, the reus shall have the right to publicly claim a confirmation vote from the Comitia Centuriata. Once the reus claims this right, the consules shall call the Comitia Centuriata within fifteen (15) days to vote upon the reus's expulsion. Should the Comitia Centuriata confirm the sententia, the sententia shall be applied. Should the Comitia Centuriata vote against the sententia, the sententia shall be nullified.

XIX. Once a reus has been absolved, either by a tribunalis or by the Comitia Centuriata, he shall not be judged again under the same accusations.