Greece, Rome, and the Bill of Rights (29 page)

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Authors: Susan Ford Wiltshire

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Chapter 8
Amendment IV: Search and Seizure
IV. The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Mr. Justice Brennan stated in a Supreme Court decision that the issue of illegal search and seizure was the "single immediate cause of the American Revolution."

1
Protection against such violations of individual rights had been claimed in Chapter 39 of Magna Carta: "No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land." In insisting on constitutional guarantees guarding the privacy of one's person and home, however, the framers were continuing a legal tradition far older than Magna Carta.

 

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Roman Rules of Search
While the details of its origins are obscure, the notion of private property was well established in Rome by the time of the Twelve Tables in 451
B.C.

2
Private ownership of house and garden arose first, followed by that of arable land. Table VII of the Twelve Tables, for example, entitles an owner to enter the grounds of his neighbor to collect any of his fruit that had fallen there.
3
In Roman society the home was considered to be under the special protection of the household gods. The Twelve Tables did not constitute the public political system but rather codified the civil law,
ius civile
, which dealt with the rights and duties of individual citizens. In general, this meant that the humbler classes were safeguarded against arbitrary behavior from the wealthier patricians.
4

Safeguards against illegal search in cases of suspected theft are as old as the provision in the Twelve Tables for
lance et licio
, a practice that must date back even earlier among Indo-Germanic people since parallels have been found among the Greeks, Germans, and Slavs.
5
Under this provision, anyone whose goods had been stolen could demand to search, together with witnesses, any premises on which he suspected his stolen goods were hidden. First, the accuser had to describe to a court in detail the goods he was seeking. If the accused refused the search, the accuser could exact a penalty from him. If the search were allowed and the goods were found, then the owner of the premises was liable to a penalty even if he knew nothing about the theftfor instance, if a guest had brought in stolen goods and left them there concealed.
To enter the premises, the searcher could be clad only in a loincloth (
licium
) and had to carry a platter (
lanx
) in his hands. The purpose of the loincloth is obvious. If the searcher were nearly naked, he would be unable to smuggle anything into the house under his clothing and pretend that he found it there. The purpose of the platter is more obscure. Gaius offers two explanations without accepting either: that it was to put the stolen items on, or that it kept the accuser's hands occupied so that he

 

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could not smuggle anything into the house. Mommsen suggests that the platter was a symbol of the intended seizure and carrying away of the goods.

6
Another possibility is that it contained some sort of reward or caution money. In any event, this unusual practice offered to suspects remarkable protection against illegal searches.
7

The ritual of
lance et licio
was probably not in practice in classical times. By the time of Gaius it was certainly obsolete but still subject to much speculation. By Justinian's time search was a public matter, and no special provision was needed for the knowing receipt of stolen goods. In the common Roman conception of theft, the receiver of stolen property was likewise simply a thief.
8
Evidence in Criminal Cases
In criminal cases, a body of law eventually grew up to regulate procedures for gathering evidence. The complainant had to gain a warrant stating the names of the accused and the nature of the accusation. Such a warrant instructed all officials and other individuals to assist in the gathering of evidence and summoning of witnesses. Once he had such a warrant, the complainant seems to have possessed a general power of search for documentary evidence. In order to take away any such evidence, the accuser had to seal the documents in the presence of a witness and deliver the seized evidence to a court within a specified period of time.
9
Cicero's prosecution of Verres in 70
B.C.
provides a number of insights into Roman procedures regulating searches for evidence. Verres had been for three years the rapacious provincial governor of Sicily. Upon retirement from that office (governors could not be prosecuted while in their post) he was accused of extortion by the Sicilian people before the
quaestio de pecuniis repetundis
''the court of inquiry into moneys claimed back." While this was technically a civil suit, the case was in effect a criminal prosecution for misgovernment and oppression.
In a survey of Verres's earlier crimes as assistant governor in Asia, Cicero mentions his thefts from the island of

 

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Samos of paintings and statues, which Cicero himself saw when he went to Verres's house for the purpose of sealing his evidence (
cum obsignandi gratia venissem
).

10
Later Cicero describes finding incriminating papers during a surprise visit to one Lucius Vibius, who had been a magistrate in the year under question, papers which contained lists of goods exported by Verres from Sicily with no export tax. These, he says, he put under seal at once:
itaque obsignavi statim
.
11

Some scholars have proposed that until the nineteenth century, the criminal systems of England and all other modern states were less humane than that of the Romans.
12
It is remarkable that the earliest recorded laws of Romea hierarchical society supremely conscious of class and privilegeprovided a measure of security for common persons, even those suspected of theft, against illegal searches of their homes. Further, evidence had to be gathered under legal constraints even when the powerful were being investigated.

 

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Chapter 9
Amendments V, VI, VII, and VIII: Judicial Process
V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment, most commonly known for its prohibition of self-incrimination, also contains the assurance of two other rights, the right to indictment by a grand jury before standing trial in serious cases and the right to freedom from double jeopardy for the same offence. A brief history of the jury system will be reserved for discussion of the Sixth and Seventh Amendments, except to say here that in England the origins of

 

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the grand jury were earlier than those of the trial jury.

1
Following the clause that ''no person shall be compelled in any criminal case to be a witness against himself" is the addition that no person shall "be deprived of life, liberty, or property, without due process of law." The Fifth Amendment ends with an oddly placed clause not pertaining to criminal procedures, forbidding that "private property be taken for public use, without just compensation."
2

The Fifth Amendment assures first that no person shall be held to answer for a "capital or otherwise infamous crime" (presently construed to mean a crime for which one can lose the right to vote if convicted) without having first been indicted by a grand jury. In other words, probable cause has to be determined by a grand jury before a person can be taken to trial. This feature of the judicial process would have seemed superfluous to the ancient Romans, who took for granted the authority or
imperium
of the magistrate to decide which cases would be heard. From the modern point of view, we would say that the Roman magistrate functioned as the grand jury but without the check of a jury of peers of the accused and without constitutional constraints on the arbitrary power of the magistrate.
Under the
Lex Acilia
, the Gracchan jury law passed in 123122
B.C.
, an action was initiated by bringing a written indictment,
nominis delatio
, before the praetor. The praetor then required an oath to ensure that the accuser was not acting out of malice,
calumnia
. In later
iudicia publica
, where there might be several accusers, a more complicated procedure called a
postulatio
required an application for permission to bring an accusation. The praetor might refuse to grant this permission for several reasons: the charge might be against some law or the accused might be legally immune from prosecution. For example, the
Lex Acilia
specifically exempted magistrates from prosecution during their year's term of office, an exemption that saved Clodius from an accusation of violence or
vis
by Milo by his getting elected aedile just in time. Sometime before 113
B.C.
another law, the
Lex Memmia
,

 

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