Greece, Rome, and the Bill of Rights (31 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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impartially to both the accusation and the defense. I swear these things by Zeus, by Apollo, by Demeter. May there be many blessings on me if I keep my oath, but if I break it may there be destruction on me and my family.

18

Unlike all the other Athenian officials, the dicasts were not required to submit to scrutiny at the end of their year of service. The reason for this is that they were not like the other servants of the people because they were the people.
19
Jurors were selected by lot, submitting wooden or bronze nameplates called
pinakia
, which were inserted into a chest or
kleroteria
from which the nameplates were drawn randomly.
20
This process demonstrates the Athenian confidence that ordinary citizens were qualified to judge as final authorities.
Aeschylus's trilogy, the
Oresteia
, reflects in drama the events taking place politically in contemporary Athens. In order to put an end to a seemingly endless series of revenge murders, Athena establishes a jury of twelve of the finest citizens to hear the case of matricide against Orestes. Before they vote, she tells them that her vote, if she should be forced to break a tie, would be for acquittal. The jury is nevertheless independent enough to vote its conscience. The result is a six-six tie, and Athena does indeed cast the deciding vote.
21
In discharging the jury she declares: "In all goodwill toward these citizens I establish in power spirits who are large, difficult to soften. To them is given the handling entire of men's lives."
22
David Luban assesses the trial in the
Eumenides
from a legal perspective and asks whether Athena stood as a fair judge in the matter of Orestes' matricide. He concludes that she did not, ruling instead from her stated biases in favor of the male. Aeschylus's motives, he suggests, stem from social control rather than legal fairness:
A shallower playwright than Aeschylus would not have composed the trial scene as he did.... Aeschylus, however, like Homer before him, understood that the civil peace and stability that he implicitly elevated to the highest-ranked social value

 

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must be purchased at a high price.... For Aeschylus, the price of order is that we abandon legal justice in favor of social control.

23

A more generous reading of the
Oresteia
suggests that the "self-help justice" of personal revenge for crimes leads only to more crimes. A jury of citizen "outsiders" can restore order in society and end the chain of retributive justice. Aeschylus celebrated through his poetry the possibility for a peaceful rule of law in the civic realm.
Roman Criminal Procedures
Of the eight provisions of the Sixth Amendment, the most fully elaborated in Roman law had to do with the role of the compulsory process of witnesses in criminal trials. Callistratus holds that the reliability of witnesses must be carefully assessed and that the question prior to all the others is the witnesses'
condicio
, that is, economic and social status: are they decurions (town counselors of minimal status) or plebeians? Only then is it to be determined whether they lead an honest and blameless life and whether they are wealthy or needy (
locuples an egens
), the inference being that if they are needy they are likely to be motivated by personal gain. Potential witnesses are also to be queried as to whether they are enemies of those against whom they give evidence or friends of those for whom they give it. Evidence can be admitted, Callistratus concludes, if the witness is free from suspicion on all these counts.
24
There are also several references in the
Digest
to rules for summoning witnesses, for example the following: "Witnesses should not lightly be summoned from long distances, still less soldiers called away from their military duties. In a rescript, Hadrian wrote 'So far as summoning witnesses is concerned, the careful judge should find out what the practice is in the province in which he is judge.'"
25
The only witnesses who can be summoned under compulsion, however, are witnesses for the accusers, not for the defendants.
Before Sulla's redesign of the legal system in 81
B.C.

 

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there was no regular jury system in criminal cases. Defendants could, however, if condemned by a magistrate, appeal to the people in a
iudicium populi
. By definition these trials were public, and once set in motion, they were also speedy. The first step in this procedure, which Cicero believed to have been enacted in 509
B.C.
, was the setting by the magistrate of the day (
dicere diem
) on which the trial could begin. Then there would be three successive hearings or
contiones
with a day between each hearing. No more than a month later came the formal judgment of the magistrate and the vote of the people.

26

After the Sullan reforms, jury trials in criminal cases were regularized, and an upper-class Roman man, if asked whether he considered that he could expect a trial by jury, would probably say yes.
The last provision of the Sixth Amendment protects the right of the defendant to counsel in criminal cases. The Roman criminal system, again in contrast with the American, takes more care to see that the accusers have lawyers than the defendants. In civil cases, however, the urban praetors would provide the defendant with an
advocatus
if the defendant did not have one.
Feudalism and the Judgment of Peers
In this chapter it is appropriate to consider the evolution of the jury system in medieval England because of the particular impact of feudal institutions upon its development and the remarkable marriage of Roman and feudal law it represents.
An English judge emphasizes that the jury system grew up in England not because some lawgiver decreed it as a promising theory but because it worked in practice. The English excel, he says, in working things out as they go and in the ''art of knowing where to place their feet."
27
It was the Normans, however, who brought with them into England the practice of swearing oaths to the king, who used such promises of veracity to gain information (such as that compiled in the Domesday book) that assisted his administration. The oathtaker was called a "ju-

 

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ror" from the Latin verb
iurare
, to swear. Imported from the Continent, too, was the informal understanding of "judgment by peers" (
iudicium parium
), the peers understood to be the principal military tenants of various fiefs. By 1066 the underlying doctrine of judgment by peers had been promulgated by edicts of the emperors in Italy, attached to the
Corpus
of Justinian, and annotated by jurists. The
Libri feudorum
carried Roman law all over Europe, and although Roman law was never valid in England, it exerted great influence on medieval English thought.

28

Barnaby Keeney attributes the revival of legal studies in northern Italy to the Carolingian conquest and the importation of Frankish ideas favorable to feudalism. This created an Italian context for bringing Roman law to bear on solving problems in feudalism. The edict of Conrad the Salic, issued in Lombardy in 1037, documents several features of feudalism and contains the first explicit reference to judgment by peers as a way of resolving disputes between lords and their vassals.
29
Keeney shows, too, that the idea of the "twelve peers of France" was of long standing, even though the number does not appear in official sources until late in the thirteenth century. One scholar argues that the number comes from the first half of the twelfth century, when the total of twelve was composed of the dukes of Normandy, Aquitaine, and Burgundy; the counts of Flanders, Champagne, and Toulouse; the archbishop of Rheims; and the bishops of Langres, Laon, Châlons, Beauvais, and Noyon.
30
Only in epic poetry, however, does the number twelve appear as significant during that period.
31
Keeney concludes that the chivalric legends either reflected the existence of a peerage of twelve or influenced the adoption of that number.
32
Thus the invaders with William the Conqueror were familiar with the idea that a person should be judged by his peers. The issue was not a burning one, however, until the time of King John and Magna Carta.
Keeney emphasizes that the practice of judgment by peers was feudal and existed only where feudalism did.

 

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