Greece, Rome, and the Bill of Rights (33 page)

Read Greece, Rome, and the Bill of Rights Online

Authors: Susan Ford Wiltshire

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

BOOK: Greece, Rome, and the Bill of Rights
4.95Mb size Format: txt, pdf, ePub
page_165<br/>
Page 165
colonists to trial by jury. A jury of Zenger's peers ignored the British judge's insistence that it was to determine only the fact of publication, while he, the judge, would determine whether or not Zenger's expression was seditious. Persuaded by Zenger's attorney, Andrew Hamilton, the jury ignored the judge's instructions and acquitted Zenger.

44
On the other hand, after the Supreme Court overturned the first convictions in the famous Scottsboro case, a second trial in Alabama found one of the defendants, Haywood P. Patterson, guilty. Judge Horton, disagreeing with the jury's verdict, set it aside and ordered a new trial. Judge Horton was soundly defeated in his next election, while Patterson was convicted in a third trial in 1933.
45

Generally, however, a judge's powers to set aside a jury's verdict are wider in civil cases than in criminal cases, in which it is a fundamental principle that a verdict of not guilty is final and cannot be set aside.
46
As imperfect a system as the jury is, as imprecise its approximations of an abstract ideal of justice, it nevertheless helps preserve the accountability of judges to the people and to the law. Perhaps sometimes it also enlivens judicial sensitivities calloused by the constant parade of horrors through the courts. Certainly the jury provides a safeguard against unjust laws and, finally, against tyranny. As one jurist observes, any revolutionary bent on overthrowing a country would first abolish the legislative body and second trial by jury, because "no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen."
47
Alexis de Tocqueville compared the American jury system favorably with the British. The British jury, he noted, is selected from the aristocratic portion of the population, while in America, every citizen is eligible. De Tocqueville saw the jury as a powerful school for citizenship and attributes the practical intelligence and political good sense of the Americans to their long use of the jury in civil cases. He concludes: "The jury is both the most effective way of establishing the people's rule and the most efficient way of teaching them how to rule."
48

 

page_166<br/>
Page 166
VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The last of the amendments of the Bill of Rights providing protection from judicial encroachment prohibits excessive bail, excessive fines, and cruel and unusual punishment.
In most Athenian legal procedures the accused was not held prior to trial, even in homicide cases prosecuted under normal circumstances, so there would have been no need for bail. In one case described by Antiphon, the defendant protests that he was not allowed to provide sureties for getting out of jail where he was being held for trial, which may imply that this possibility would have been normal in such cases.

49
For the most part, however, the idea of bail has its origins in Anglo-Saxon practice and to some extent among Germanic tribes on the Continent.
50

In matters of cruel and unusual punishment, the Romans were masters. In the Roman world we know that slaves were examined under torture, since it was supposed that they were so lowly or so unable to distinguish truth from falsehood that only torture could extract true testimony from them. Later, perhaps by the second half of the second century of this era, torture was legally extended from slaves to free persons of low degree. In cases of
maiestas
, all free persons, and not just those of rank, could be tortured. Jones observes that
maiestas
"always remained an exception to any rules exempting the upper classes."
51
In one respect, however, Roman practices of criminal punishment may have been more advanced than American. Ulpian writes in the
Digest
, "Governors are in the habit of condemning men to be kept in prison or in chains, but they ought not to do this; for punishments of this type are forbidden. Prison indeed ought to be employed for confining men [before trial], not for punishing them."
52
Amendments V through VIII of the Bill of Rights constitute what some people consider "technicalities" by which

 

page_167<br/>
Page 167
criminals escape punishment. These "technicalities," however, are another term for the elaborate procedures, hard won over a period of more than two thousand years, that are meant to protect the innocent as well as to convict the guilty. It is these often cumbersome practices that ensure the rule of law instead of the tyranny of whim in human governance.
In the case of the jury system, we see in the American Bill of Rights a return to the faith of classical Athens, that ordinary citizens

53
are capable in orderly ways of governing their own affairs and settling their own disputes. Now, however, that capacity is dignified as a right of human beings as individuals and not just as members of a community. The notion has come full circle, amplified by the gradual evolution of a belief in individual rights.

 

page_168<br/>
Page 168
Chapter 10
Amendments IX and X: Retained Rights and Reserved Powers
IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
By happenstance, the last two amendments in the Bill of Rights return us to the initial discussions of Greek philosophy and Roman law in Chapter 1. The Ninth Amendment raises issues originating in Greek philosophy, while the Tenth recalls the Roman gift for administration.
These two amendments are a tribute to the political canniness and vision of the framers. The Ninth Amendment mollified critics who feared that enumerating rights in a set of amendments to the Constitution would imply that no other rights were protected. Having come this far toward freedom and representative government, the framers were reluctant to place limits on other individual

 

page_169<br/>
Page 169
rights that might come later into focus. The Tenth Amendment affirms the role of the states and the people

1
in their federal relationship with a strong central government.

The Ninth Amendment and Unenumerated Rights
Because there was no doctrine of inherent individual rights in the classical world, the Ninth Amendment lacks analogies in ancient Greece and Rome. Indeed, the idea of protecting undefined rights would have been the worst nightmare of the Romans, who labored assiduously in their legal documents to specify every possible application and exception. The Romans were married to the ''black letter law."
Even as a part of the United States Constitution this provision lay dormant for nearly 175 years. In recent times, however, the Ninth Amendment has become the center of a swirl of controversy about whether other rights not presently delineated by the government are "retained by the people"and if so, how and by whom they are to be determined. Hence it is more closely connected than any other provision of the Bill of Rights with the doctrine of natural law doctrine, which originated in Stoic philosophy and evolved into the theories of rights of John Locke and the Enlightenment.
A belief in natural rights clearly lay behind the amendment in the first place. If they had not believed in a doctrine of natural rights, the framers would probably have enumerated many more rights than those contained in the present ten amendments, as evidenced by the much longer list of rights proposed by the state ratification conventions.
James Wilson of Pennsylvania was an impassioned opponent of a bill of rights because he was so strong a believer in natural rights. The fundamental purpose of government, he held, is to protect and expand the natural rights of its members. If a government does not have this view, then it is not a legitimate government.
2
It is therefore unnecessary to provide a list of particular rights

 

Other books

A Long Silence by Nicolas Freeling
A Gust of Ghosts by Suzanne Harper
Shrapnel by Robert Swindells
Mastiff by Pierce, Tamora
The Verruca Bazooka by Jonny Moon
Nathaniel Teen Angel by Patricia Puddle
New Grub Street by George Gissing
The Last Exile by E.V. Seymour