Greece, Rome, and the Bill of Rights (30 page)

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Authors: Susan Ford Wiltshire

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provided exemptions for persons absent from Rome
rei publicae causa
, so that to get oneself nominated as a legate might prove a useful dodge from prosecution.

3
The magistrate, however, had wide discretion in the application of the
Lex Memmia
.

These provisions indicate some protection for the accused against capricious prosecution. The essential difference from the American system, however, is the discretion left in the hands of the magistrates as to what cases they would hear and the absence of a jury of peers in voting a true bill and presenting an indictment before a person could be brought to trial.
The next provision of the Fifth Amendment reads, "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In Roman law it was also true that a person could not be tried twice for the same offense in the same criminal court. These courts, called
iudicia publica
or synonymously
quaestiones
, were in Cicero's day permanent courts, presided over by a praetor with a large jury, which gave its verdicts by majority vote.
4
Here the Romans had at least the principle of protection against double jeopardy for the same offense. The
Lex Acilia
provided that a person could not be accused on a matter that had already been adjudicated, whether the accused was condemned or acquitted. A. H. M. Jones thinks the same provision against double jeopardy was probably included in the laws setting up other criminal courts.
5
There were, however, different courts for different offenses, and a person could be tried for the same charge under more than one statute. For example, three laws against vis were in force at the time that Milo was charged with violence: the
Lex Pompeia
, which applied only to disturbances of the year 52
B.C.
; the
Lex Lutatia
; and the
Lex Plautia
. Milo was condemned under the
Lex Pompeia
, and, shortly thereafter, under one of the other two laws, probably the
Lex Lutatia
. Milo's follower Saufeius was acquitted under the Lex Pompeia, and then, for the same offense, again accused and again acquitted under the
Lex Plautia
.
6

 

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This protection against double jeopardy in the Bill of Rights is a cornerstone of American criminal law. A prosecutor does not have two chances to convict a defendant of the same crime in the same court.

7
Nevertheless, in the American as in the Roman system, a defendant can be tried for the same crime in two different sovereignties, which generally means on the state and federal levels.

The third clause of the Fifth Amendment holds that persons in criminal cases shall not be compelled to witness against themselves. The principle is a simple one, namely, that governments must prove their cases themselves; defendants cannot be forced to do it for them. Leonard Levy sees this provision as an embodiment of American political morality, namely, that citizens are the masters of government, not its subjects. He quotes with approval the words of Mr. Justice Fortas: "The principle that a man is not obliged to furnish the state with ammunition to use against him is basic to this conception."
8
In some ways, however, the Romans went even further than their American heirs in protecting against self-incrimination. Not only was the accused protected from having to testify against himself, but neither could any relative by blood or marriage, or any freedman testify against him except in cases of
maiestas
, adultery, or fiscal improprieties. The
Lex Julia
provides that no one who is unwilling should be summoned to give evidence in court against his father-in-law, son-in-law, stepfather, stepson, cousin, or cousin's child, or those nearer in degree; and likewise no one's freedman should be summoned nor the freedman of his child, parent, husband, wife, patron, or patroness. Further, a patron or patroness cannot be compelled to give evidence against a freedman nor a freedman against a patron.
9
VI. In all criminal prosecutions, the accused enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the

 

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accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence
.
VII. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of common law
.
Amendments VI and VII further explicate the rights of the accused in criminal cases and of litigants in civil cases. In criminal cases, the Sixth Amendment ensures the right to a speedy public trial by an impartial jury in the district where the crime occurred, the right of the accused to be informed of the charges, the right to confront hostile witnesses, the right to obtain witnesses in one's behalf, and the right of assistance to counsel for the defense. The Seventh Amendment preserves the right of jury trial also in civil cases.

10

The jury system in America, valued by Jefferson as the anchor of constitutional government, has two origins: the practice of trial by jury invented by the ancient Athenians, and the concept of judgment by peers, which grew up with feudalism in the Middle Ages.
Jury Trial in Classical Athens
The lawgiver Solon (c. 638c. 558
B.C.
) introduced the right of appeal of magistrates' decisions to the people convened in a judicial assembly called the Heliaea, as distinguished from the Ecclesia, or political assembly.
11
Apparently a quorum consisted of six thousand persons; certain kinds of actions, including ostracism, required that six thousand persons vote. In the time of Pericles the juries or dicasteries consisted of ten panels of jurors, five hundred each, selected annually from six thousand citi-

 

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zens. These jurors had to be male, over thirty years of age, free and full citizens, and free of debt.
The body before which a case was tried was selected by lot from one of these panels. A magistrate presided, but the dicasts were the judges of both law and fact. The number of dicasts varied according to the amount at stake.

12
Verdicts were by majority vote, and they were final, not subject to appeal or review.
13
The ballots, which were black and white stones, were put in urns for secrecy. Pericles is credited with instituting pay for jury service in about 460450
B.C.
The Athenian Constitution
14
suggests that his motive was to curry favor by bribing the people with their own money, although this work is not an unbiased witness in this instance. More likely, some pay was necessary to induce the poorer citizenry to participate.
15
In some cases the prosecutor needed to get one-fifth of the votes or be subject to a large fine.

Draco's homicide law, which was passed about 620 B.C. and remained in force at least until the fourth century, advanced the transition from voluntary to compulsory procedures. After an initial public proclamation stating the name of the accused, the accused could immediately go into exile, stand trial, or ignore the proclamation. If he chose the latter, he could be killed or arrested immediately. Following the initial proclamation, three preliminary hearings were held before a magistrate before the trial itself took place. The penalty for homicide was exile, even in the case of an unintentional murder. Draco's law also provided protections for the accused against self-help retaliation and for reconciliation of the killer with the victim's family.
16
The Athenian jurors took an oath, which predates the dicasteries and may date back to the time of Solon. The oath has been reconstructed
17
as follows:
I shall vote according to the laws and the decrees of the Athenian people and the Council of the Five Hundred, but concerning things about which there are no laws, I shall decide to the best of my judgment, neither with favor nor enmity. I shall judge concerning those things which are at issue and shall listen

 

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