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The Romans Dealt With Subpoena No-Shows

by cskendrick Mon Nov 12th, 2007 at 07:33:16 PM EST

From the Twelve Tables, the basic law of the Roman Republic:

TABLE I: Concerning the summons to court.

This should sound familiar, given what we have/have not seen in regards to summons and subpoenas in Washington of late. What would the Romans have said about Harriet Miers, and others?

Law I. When anyone summons another before the tribunal of a judge, the latter must, without hesitation, immediately appear.

This is the Very. First. Law. on the books. From this one law, all others are raised for without the summons being honored, there can be no consideration, ruling or application of law without the plaintiff and the defendant (most such cases as these were civil disputes, same as now) without the parties being present for an official proceeding. Otherwise, it's just vendetta, and there is no use to pretending that a viable civil society exists.

It just gets better.

The Romans, violent as they were, were acutely aware of the consequences of not honoring legal proceedings. Did the powerful among them always do so? No, but the powerful also wrote the laws to promote their power and privilege, then enforce good behavior even amongst themselves, insofar as it was possible to do so.

Law II. If, after having been summoned, he does not appear, or refuses to come before the tribunal of the judge, let the party who summoned him call upon any citizens who are present to bear witness.

Then let him seize his reluctant adversary; so that he may be brought into court, as a captive, by apparent force.

Show up or You. Will. Be. Brought. Before. The Court. In. Chains.

Whenever a summons was delivered, and refused, the next recourse was to publicly declare (in our era, this would be covered in the media somehow or posted in the local newspaper or public website) that a summons had been issued, that this was a lawful proceeding and not a defamation which would be grounds for a countersuit. It was also to serve as a public shaming.

To be treated as a captive was the same as being an enemy or slave in Roman culture, an almost irrecoverable shame. A tradesman would likely seek exile after such a humiliation, if allowed to skip out on the summons at all. A noble, suicide. That is, if they were not in such dire straits that they did not do that rather than suffer being in court at disadvantage at all.

We live in a television society. To be called before a public hearing is a dreadful dishonor in our society, even for those who have later profited from it. The resistance of certain current and former government officials and corporate officers to answering summons should not be underestimated; to be set before Congress under bright lights and harsh questions is for such persons very stressful. However, we have as a society through inefficacious Congressional leadership made it easy for such persons, who share the same class, to dodge the bullet. This is perceived as salutary for all; if we the powerful cannot be called on to summons, we are all better off. NO, the Romans knew the consequence of this, too -- those who visibly have the most influence over and profit from the laws of the land must be seen to obey them, or the legitimacy of the state is called into question, and real danger of riot and rebellion ensues.

Law III. When anyone who has been summoned to court is guilty of evasion, or attempts to flee, let him be arrested by the plaintiff.

This, in our era, is the same as saying if you do not show up, we gonna set the bounty hunters on you. This is done, albeit rarely, for infraction far less prominent than refused to show up for a Congressional hearing at all.

In the Roman times, falling under the power of your personal enemies, with lawful sanction, even for a short while, was pretty much assurance that you were going to get physically abused, quite badly in some instances. After all, it was a free lunch; you didn't answer a courts summons.

Law IV. If bodily infirmity or advanced age should prevent the party summoned to court from appearing, let him who summoned him furnish him with an animal, as a means of transport. If he is unwilling to accept it, the plaintiff cannot legally be compelled to provide the defendant with a vehicle constructed of boards, or a covered litter.

The message You. Will. Show. Up. No Excuses.

NOt even being involved in an ongoing war -- not fighting, just "involved", was considered legitimate grounds to refuse an apparance before a court. To have once been a person associated with a person who was doing such work, and not in a military capacity, would not have amused the most generous of Roman magistrates. As likely, the lash would have been applied to any wag who tried such a justification. Then the court proceedings would commence, after such contempt was answered.

Law V. If he who is summoned has either a sponsor or a defender, let him be dismissed, and his representative can take his place in court.

Okay, this one needs explaining. From the editor's footnotes in the translation:

From this it will be seen that the office of defensor, or "defender," of the party sued was one of the most ancient recognized by Roman jurisprudence. Its duties were often undertaken without solicitation, through motives of friendship or compassion, or the influence of family ties; and, as the defendant's representative, he occupied the legal position of the former, including the unqualified assumption of all his liabilities arising from, or dependent upon the matter in litigation.

This is not a public defendor; this is a consequence of being on the happy end of patronage. Sometimes, the minor functionary of a powerful merchant family or noble house might run afoul, be it gambling debts or the consequences of getting into a drunken brawl one night, or an accusation of, say, corruption or sabotage of the career of a  rival public official.

The text above explains it nicely - In such an event, a wealthier, more reputable person with more to lose in terms of status and reputation would take up your case.

The intent was to have powerful person who might be embarrassed if an underling was brought before a court to settle such matters quickly and quietly or, if they dared defend the innocence of their servant, to be aware of the consequence should their trust be misplaced.

One imagines the example of Pontus Pilate was reprised - The powerful washed their hands of the matter..

What is interesting in the Bush era is that while some are indeed thrown under a bus, there is no consequence for using power to protect vassals who are less than strong candidates for innocence. This again is a breakdown in the judicial process. Those who intervene to subvert justice to their power see their wishes honored, and rule of law suffers.

Were we under Roman law for real, this matter would likely spark a flurry of legal activity, public outcry and preparations for civil strife.

I suppose the Romans, violent semibarbarians as they were, were more law- and justice-conscious than a modern developed civilization.

Law VI. The defender, or the surety of a wealthy man, must himself be rich; but anyone who desires to do so can come to the assistance of a person who is poor, and occupy his place.

Another out for the mighty; have someone more expendable step forward and take the fall. The Romans were pragmatists, after all, and the law was meant as much to conserve the legitimacy of the courts, and therefore the law, and therefore the Roman state --  as any other outcome. Sometimes, the servant was too useful to allow dishonor. Sometimes, the servant was also a lout and probably did do damage. Someties, it was better to have someone stand in. Sure, there were touching instances (maybe) of a good person (or well meaning fool) stepping in the shoes of a convincing defendant who then immediately skipped town while the dupe was sold into slavery to pay his debts, and maybe, just maybe, this worked in cases where a father sacrificed himself to give a son a second chance (deserved or not).

However, as in all things, laws are introduced to uphold principles, but later laws are written to serve the interest of the powerful -- and the state -- first. Machiavelli spoke on this when he stated that it is best to introduce good laws all at once, and preserve them as closely as possible or, if needs be, to replace them all at once.

There is nothing in ancient, medieval or modern legal history to gainsay his observation.

Law VII. When litigants wish to settle their dispute among themselves, even while they are on their way to appear before the Prætor, they shall have the right to make peace; and whatever agreement they enter into, it shall be considered just, and shall be confirmed.

No mystery here. The courts then as now were happy to have less work to do.

Law VIII. If the plaintiff and defendant do not settle their dispute, as above mentioned, let them state their cases either in the Comitium or the Forum, by making a brief statement in the presence of the judge, between the rising of the sun and noon; and, both of them being present, let them speak so that each party may hear.

Then as now, there were complex deals, matters that were not easy to settle in a day. The purpose of this law was transparent -- You had better come prepared to state clearly so that lay persons could quickly understand what wrong has been done.

The purpose is likewise transparent - to reward clarity and punish opacity in one's personal and professional dealings.

Setting "The insurance company did not pay my eligible claim" against "The policyholder is not eligible, and here is why" is fairly straightforward. The time limit serves to mitigate the obfuscation of competing expert testimony and provide a reasonably short period of time in which both court officers and reasonably informed onlookers can hold the shape of the competing arguments together and make useful comparisons.

The Romans were correct; it is not good to let the sun set on an argument. "Let me sleep on it" in most instances does not work.

Law IX. In the afternoon, let the judge grant the right to bring the action, and render his decision in the presence of the plaintiff and the defendant.

Results were swift. This tended to favor the powerful, well-connected, resourceful, prepared and experienced in court processes. A defendant who needed time to prepare arguments might well flee, but under American contemporary circumstances a petition for recess or delay in proceedings to prepare arguments is relatively easy to obtain...up to a point. The Romans were likewise beneficiaries of overworked courts; delays did not bother them greatly, save when excessive.

Generally, though, the practice was for magistrates to catch bad plaintiffs at the onset. The consequence for bringing a frivolous suit before a Roman court was fines for a nobleman, severe beatings for a tradesman. However, again in this the powerful held advantage; Roman magistracies were appointed, and for a long while judges earned their income from court fees and fines past rudimentary stipend to keep up in staff and other aspects of their offices.

This also made magistrates a bit, er, tractable. However, the penalty for being caught taking or offering a bribe was death...and over the time of the Republic and later the Empire, especially the latter-day Dominate period, capital crimes proliferated.

However, I submit this was not a reflection of the robustness of Roman law but as clear an index as possible that, over time, the penalties escalated precisely because of noncompliance and disregard for the laws, the processes and the legitimacy of the state itself.

Consider that hypothesis -- that states with many capital crimes are correlated with high levels of civil and even rebellious opposition to the state. Or, restricting to high levels of economic development, what advanced economy has the most capital crimes? the most persons incarcerated or on a proscribed list as former inmates? the worst reputation as a government, in the opinion of citizens and foreign observers alike?

Any ideas who that case might be?

Law X. The setting of the sun shall be the extreme limit of time within which a judge must render his decision.

Ideally, this compels some judgment to be rendered, and in tough cases should (ideally) err on the side of innocence in our society. Under Roman practice, the errancy went to favor the more powerful party. One suspects this is likewise the case in the contemporary American example.


Original laws -- constitutions or episodes of significant amendment to same -- are promulgated with basic principles in mind. They are intended to be breaks with past behavior, and deliberately made to be difficult to institute and, even if so, are difficult to introduce regardless for people are very resistant to changes in their laws even when their functionality and legitimacy is past.

In American history, only episodes of civil war, high levels of social unrest, or prolonged evidence that new amendments are needed have sufficed to overcome this resistance. The Romans were no different, in fact were even more conservative in writ and about the only way laws were changed -- and changed back -- were episodes of dictatorship (Sulla, Marius, the Grachhi, the Caesars) that resulting in the permanent subordination of the Senate to a neverending succession of tyrants, some competent, brilliant, visionary, generous, industrious, just--- but most were fickle shadows of their better examples.

And the Romans enjoyed that monarchy through the back door, even as they were -- like America -- a society that started under monarchy and swiftly rejected it and hated the very accusation that they had become what they despised. To use the word rex in association with a Caesar was grounds for crucifixion. To say imperator, though, that was different. After all, Rome is ruled by the Senate and the People. Kings are tyrants. Emperors are nothing of the sort. Yeah...that's the ticket...

There are Twelve Tables to Roman Law. They were heavily amended over the centuries, but the magistracy system introduced on the First Table was preserved deep into the Imperial period.

And there is a reason why the summons system sounds so heartbreakingly similar to contemporary law and custom.

More or less, it's what we are supposed to be doing.

Lately, we're adhering to 2,500 years of judicial precedent a lot less.

To what extent is Roman Law considered a "source of law" in America? I know that in Spain "Roman law" is studied in the first year of a law degree.

We have met the enemy, and he is us — Pogo
by Migeru (migeru at eurotrib dot com) on Tue Nov 13th, 2007 at 03:22:06 AM EST
is more of a model for the empire thing than for the law thing. But it shows that they seemed to care about some checks and balances more than the current crowd (on both sides) in Washington).

In the long run, we're all dead. John Maynard Keynes
by Jerome a Paris (etg@eurotrib.com) on Tue Nov 13th, 2007 at 03:59:05 AM EST
[ Parent ]
It's more than that. When it is said
Lately, we're adhering to 2,500 years of judicial precedent a lot less.
it makes me woder to what extent Roman law really is a precedent in Anglo-American law. Roman influence in the British Isles basically disappeared overnight when the legions left, unlike in the rest of the Empire. Then you have English Common Law as the basis of law. I am not entirely certain that Roman law sets a precedent for the US. It certainly operates by analogy and the Founding Fathers took inspiration in Rome (or their myth of it) when they were designing their Republic. Considering
Twelve Tables - Wikipedia, the free encyclopedia

According to traditional, semi-legendary historical accounts preserved in Livy, during the earliest period of the Republic the laws were kept secret by the pontifices and other representatives of the patrician class, and were enforced with untoward severity, especially against the plebeian class. A plebeian named Terentilius proposed in 462 BC that an official legal code should be published, so that plebeians could not be surprised and would know the law.

Patricians long opposed this request, but in 451 BC a Decemvirate, or board of ten men, was appointed to draw up a code. They allegedly sent an embassy to Greece to study the legislative system of Athens, known as the Solonian Constitution, but also find about the legislation of other Greek cities. Modern scholars believe that a Roman assembly most likely visited the Greek cities of Southern Italy, and did not travel all the way to Greece.

The first Decemvirate completed the first ten codes in 450 BC. Here is how Livy describes their creation, "...every citizen should quietly consider each point, then talk it over with his friends, and, finally, bring forward for public discussion any additions or subtractions which seemed desirable." In 449 BC, the second Decemvirate completed the last two codes, and after a secessio plebis to force the Senate to consider them, the Law of the Twelve Tables was formally promulgated. The Twelve Tables were literally drawn up on twelve ivory tablets (Livy says brass) which were posted in the Forum Romanum so that all Romans could read and know them.

it is possible that the Magna Carta is the oldest source of Anglo-American law.

We have met the enemy, and he is us — Pogo
by Migeru (migeru at eurotrib dot com) on Tue Nov 13th, 2007 at 09:25:46 AM EST
[ Parent ]
I'd have thought that you could have traced some of the laws and procedures back to Anglo saxon law

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Tue Nov 13th, 2007 at 09:58:28 AM EST
[ Parent ]
I suppose. My original question was, do Anglo-american legal scolars trace the roots of their law to Roman law, or not?

We have met the enemy, and he is us — Pogo
by Migeru (migeru at eurotrib dot com) on Tue Nov 13th, 2007 at 10:02:30 AM EST
[ Parent ]
Wikipedia: Roman Law in the West:
By the middle of the 16th century, the rediscovered Roman law dominated the legal practice in most European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.

Only England did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.

We have met the enemy, and he is us — Pogo
by Migeru (migeru at eurotrib dot com) on Tue Nov 13th, 2007 at 10:08:56 AM EST
[ Parent ]
it appears that they do

| Book Review | Law and History Review, 17.2 | The History Cooperative

 Nevertheless, while trying to satisfy emotions, Cantor also provides a comprehensive and up-to-date narrative of the history of Anglo-American law, with critical comparisons with the Romanist tradition of "Justinian law" [sic]. He carries the story of common law from Glanville down to the O. J. trial--from the "legal revolution" of the twelfth century down to the state of Anglo-American law in the 1990s. The first key figure is Bracton, who was the first to introduce theory (drawn mainly from Roman law but also scholasticism and Magna Carta) into the unruly growth of English custom. Bracton is characterized by Cantor, variously and imaginatively, as "a medieval Holmes," a plausible secondary character in a Hardy novel,

Bracton Online home page, Harvard Law School Library

Bracton's chief claim to fame is his association with the long treatise De legibus et consuetudinibus Angliae (On the Laws and Customs of England), which the noted legal historian F.W. Maitland described as "the crown and flower of English jurisprudence." The work (commonly known now simply as Bracton) attempts to describe rationally the whole of English law, a task that was not again undertaken until Blackstone's Commentaries on the Laws of England in the eighteenth century. The work is remarkable both for its wealth of detail and for its attempts to make sense out of English law largely in terms of the ius commune, the combination of Roman and canon law that was taught in the universities in Bracton's time.

While the attribution of the work to Bracton is of considerable antiquity, it now seems that the bulk of the work was written in the 1220's and 1230's by persons other than Bracton himself.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Tue Nov 13th, 2007 at 10:17:19 AM EST
[ Parent ]
..of the Roman Republic.

Law only has force when men are obligated to come before it. It is a social contract that can be defied, but to do so is perilous, even for those who think themselves powerful enough to do so.

Even emperors sleep in fear, sometimes.

Have Keyboard. Will Travel. :)

by cskendrick (cs ke nd ri c k @h ot m ail dot c om) on Tue Nov 13th, 2007 at 06:36:34 AM EST
[ Parent ]
Legal systems seem to be so integral part of a civilization, that it seems hard to imagine how else societies, ethics and justice could be organized. Nevertheless, here is a Chinese perspective:
The rule of law has been touted frequently by Western scholars as a central aspect of modernity. According to that measure of periodization, since the rule of law was the basis of the first unification of China in the 2nd century BC, modernity occurred 23 centuries ago in China.

Researchers have pointed out that at the end of the 17th century, while the Chinese empire often appeared in English literature as a metaphor for "tyranny", [it] was also at times praised for its legal code long established on ideals of order, morality, and good government. [Michel] Foucault's analytical approach to history highlights the limitations of European efforts to comprehend China's moral, juridical and legal structures.

The promulgation of a new edition of law, known as the Tang Code of Perpetual Splendor (Tang Yonghui Lu), [in] AD 653, was in reality just an update effort, based on the original Tang Code (Tang Lu), which in turn was based on the Sui Code (Sui Lu), which had initially been compiled 73 years earlier by the late founding Civil Emperor (Wendi) of the preceding Sui Dynasty and updated ever since by every succeeding sovereign. But the Tang Code of Perpetual Splendor is singled out by history, mostly because of its definitive comprehensiveness.

[Western] perception on the alleged underdevelopment of law in Chinese civilization is based on both factual ignorance and cultural bias. Chinese dismissal of the rule of law is not a rejection of modernity, but a rejection of primitiveness. Confucian attitude places low reliance on law and punishment for maintaining social order. Evidence of this can be found in the Aspiration (Zhi) section of the 200-volume Old Book on Tang (Jiu Tang Shu), a magnum opus of Tang historiography. The history classic was compiled under official supervision in 945 during the Late Jin Dynasty [...] A single chapter on Punishment and Law (Xingfa) places last after seven chapters on Rites (Liyi), after which come four chapters on Music (Yinyue), three chapters on Calendar (Li), two on Astronomy and Astrology (Tianwen), one on Physics (Wuheng), four on Geography (Dili), three on Hierarchy of Office (Zhiguan), one on Carriages and Costume (Yufu), two on Sutras and Books (Jingji), two on Commodities (Chihuo) and finally comes a single chapter Punishment and Law, in that order.

The Confucian Code of Rites (Liji) is expected to be the controlling document on civilized behavior, not law. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilized behavior. Civilized people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilized state of voluntary observation of proper rites. What is legal is not necessarily moral or just.

Under the supervision of Tang Confucian minister Fang Xuanling, 500 sections of ancient laws were compiled into 12 volumes in the Tang Code, titled:
Vol 1: Term and Examples (Mingli)
Vol 2: Security and Forbiddance (Weijin)
Vol 3: Office and Hierarchy (Zhizhi)
Vol 4: Domestic Matters and Marriage (Huhun)
Vol 5: Stables and Storage (Jiuku)
Vol 6: Impeachment and Promotion (Shanxing)
Vol 7: Thievery and Robbery (Zeidao)
Vol 8: Contest and Litigation (Dousong)
Vol 9: Deceit and Falsehood (Zhawei)
Vol 10: Miscellaneous Regulation (Zalu)
Vol 11: Arrest and Escape (Buwang)
Vol 12: Judgment and Imprisonment (Duanyu)

The Tang Code lists five forms of corporal punishment:
1. Flogging (Chi)
2. Caning (Zhang)
3. Imprisonment (Tu)
4. Exile (Liu)
5. Death (Si)

Leniency is applied to Eight Considerations (Bayi):
1. Blood relation
2. Motive for the crime
3. Virtue of the culprit
4. Ability of the culprit
5. Past merits
6. Nobility status
7. Friendship
8. Diligent character

Only social outcasts are expected to have their actions controlled by law... Interesting.

by das monde on Tue Nov 13th, 2007 at 07:41:37 AM EST
English common law owes very little to Roman law. However inevitably there are parallels, as any legal system has to deal with similar issues.

There are bits of English law which owe more to Roman models, through some aspects of international law and the canon law of the Roman Catholic Church.

A broad generalisation is to look at the structure of the English High Court before the re-allocation of responsibilities in the 1970s.

The Queen's Bench Division dealt with common law actions, the Chancery Division covered equity jurisdiction and the Probate, Divorce and Admiralty Division took in areas where there was some Roman law influence. PDA was known as the court of wrecks, as it dealt with the wrecks of lives, marriages and ships.

by Gary J on Tue Nov 13th, 2007 at 10:09:03 AM EST

Have Keyboard. Will Travel. :)
by cskendrick (cs ke nd ri c k @h ot m ail dot c om) on Tue Nov 13th, 2007 at 05:52:57 PM EST
[ Parent ]
This is an interesting diary, but we should also note the following features of Roman law.

First, as mentioned, Roman law was almost entirely about private law: contracts, wills, debts, all of that stuff. The Romans came up with a highly developed but strictly limited jurisprudence. Things like criminal law and constitutional law were nowhere near as developed as private law. In terms of the events that have triggered the diary, that means a subpeona would be irrelevant because there wouldn't be a case in the first place, there being no relevant public or constitutional law to apply.

Also important is that the Romans had no concept of equality before the law. Witnesses of higher social rank were to be automatically accorded greater reliability in their testimony. If you were poor and you somehow managed to sue someone wealthy, right from the start you had to face the fact that you were prima facie a liar compared to them. You also faced a different system of penalties.

Another point is that the Roman system of patronage meant that many magistrates actually felt entitled to give bent judgments regardless of the merits of the case. This formed part of the notion of libertas.

Finally, Roman law was not necessarily fast, and there are records of lawsuits dragging on and on, in one case for eighteen years!

I summarize all this from memory. The source is G.E.M. de Ste. Croix's `The Class Struggle in the Ancient Greek World'. If anyone asks I will look up the relevant passages.

On the historical relationship between English and Roman law, we might note the interesting fact that while English law has practically no connection with it, Scots law has taken over much more, and it is of practical significance.

by wing26 on Tue Nov 13th, 2007 at 08:32:52 PM EST
Veneration of status

Perceived need to accord bent judgments in favor of privilege.

I am also concerned with class-based legal privilege making a comeback in the United States.

That there is one set of obligations and sanctions for the masses and another for elites, especially well connected ones.

Not merely a weak favoritism in practice but legislated sanction.

Have Keyboard. Will Travel. :)

by cskendrick (cs ke nd ri c k @h ot m ail dot c om) on Wed Nov 14th, 2007 at 06:54:19 AM EST
[ Parent ]

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