Criminal Law and Procedure
By the early third century the cognitio extra ordinem had become the regular form of procedure for criminal trials, having superseded the earlier system of the quaestiones perpetuae.
Criminal proceedings were usually initiated by public prosecution {inquisitio), whilst indictments brought by private citizens, although still possible,[1235] became increasingly rare because of the risks involved.[1236] (A person who made an unfounded accusation against another was subject to severe punishment.)size=2 color=black face="Times New Roman">[1237] A charge, once it was accepted by the court, was put into writing {inscriptio, libellus accusationis)-, the relevant document was then signed by both the accuser and the accused and was entered in the court register.[1238] After he was arrested, an accused might languish in prison for months, waiting until his trial could take place.[1239] During the trial the judge had considerable discretion over the control of the proceedings; at the same time, however, he was bound by various rules relating to evidence.[1240] The principle that prevailed was that an accused could not be convicted if there was uncertainty as to whether he had committed the crime he was charged with. Thus judges sometimes made use of torture on an accused and even on witnesses (especially if these belonged to the class of the humiliores) in order to extract the evidence needed or, best of all, a confession. A person convicted of a crime was entitled to appeal against the court's decision. However, the right of appeal was sometimes restricted in order to prevent delays in the administration of justice, especially when the culprit was found guilty of certain serious crimes, such as murder or adultery, or when he had admitted his guilt.[1241]During the period under consideration existing offence categories were redefined and extended and a large number of new offences were created by imperial legislation.
Many of these offences were concerned with the repression of various forms of abuse of power and dereliction of duty perpetrated by imperial officials and municipal magistrates. For example, the crimen repetundarum (crime of extortion) was extended so as to include all kinds of breaches of duty committed by state officials.[1242] The definitions of ambitus (corruption) and the crimen maiestatis (treason) were similarly broadened[1243] and more severe penalties were introduced for the offence of peculatus (the misappropriation of state property), including deportation and, in some cases, the death penalty.[1244] Moreover, under the crime of sacrilegium were now treated various offences involving neglect or violation of imperial enactments.[1245] The concept of vis (violence) was also extended to cover various kinds of abuses committed by private citizens or state officials and the penalties imposed on offenders became more severe (they included deportation, confiscation of the culprit's property and, under Constantine, the death penalty). Certain wrongdoings involving violence, such as castration,[1246] circumcision[1247] and the exposure of babies incurred severe penalties, and those found guilty of crimes such as adultery, abduction, incest[1248] and pederasty were now liable to capital punishment.[1249] Moreover, after the recognition of Christianity as state religion, acts of opposition to the official religious doctrine, such as professing heretical views or refusing to observe religious holidays, were punished as crimes,[1250] and various disabilities were imposed on renegades, pagans and Jews.[1251] As criminal offences were also punished certain forbidden marriages, such as marriage between a Roman and a foreigner,[1252] between a Christian and a Jewsize=2 color=black face="Times New Roman">[1253] and between a freedman and his female patron (or the daughter or former wife of his male patron).The penalties that a judge could impose were prescribed by law and, as was noted earlier, varied according to the social status of the offender.
Among the most frequently imposed punishments were death, deportation, forced labour in the mines, confiscation of property, corporal punishment (usually imposed on members of the lower classes and slaves) and various monetary penalties.[1254] Certain forms of punishment available in earlier times were modified or abolished. For example, the aqua et ignis interdictio was replaced by the deportatio and, under the influence of Christianity, death by crucifixion and gladiatorial combat were abolished.[1255] But other cruel forms of punishment, such as mutilation and burning at the stake, were retained and in fact were more widely used than before. In general, the criminal law of the post-classical period was brutal and often inefficient. Little attention was paid in practice to the requirements of liability and the rules governing criminal procedure and, as imperial legislation on criminal matters was fragmentary and often inconsistent, the arbitrary exercise of power by those in charge of the administration of justice seems to have increased.[1256]
More on the topic Criminal Law and Procedure:
- Criminal Law and Procedure
- Criminal Law and Procedure
- Criminal procedure in the standing courts
- Private criminal law and public criminal law
- Chapter 4 Criminal Law and Criminal Justice
- Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
- 10 POST-CLASSICAL LAW AND PROCEDURE
- APPLIED CIVIL LAW: LEGAL PROCEDURE
- The Criminal Law
- The shift from private law to criminal law
- 1. The concept of theft in criminal law
- The Cognitio Procedure
- The Criminal Justice Process
- 2. Two conceptions of criminal norms
- The Formulary Procedure
- Criminal Offences, Responsibility and Punishment
- Civil Procedure
- 6.4.1 The Formulary Procedure
- The formulary procedure