Subpoena duces tecum

“ The Emperor, on his side, was not behindhand. He decreed that any magistrate excommunicated for refusal or neglect to proceed against heretics should lose his office and be debarred from accepting another. All those convicted, or to be convicted, of heresy were put under the imperial ban, which meant banishment, confiscation of goods, destruction of their houses, public infamy, debarment from office, &c. There is no explicit mention of the death penalty. “Animadversio” had meant death in ancient times, and the twelfth-century lawyer was apt to be both a great pedant and a great imperialist. ”

“ But the true design of this prosecution is, that that great aid which the majesty of the state and our dominion enjoys, and which has been handed down to us from our ancestors, may be banished from the republic; that the authority of the senate, and the absolute power of the consul, and the unanimity of all good men, may henceforth be of no avail against any mischief or ruin designed to the state; and therefore, as a handle for the destruction of all these weighty obstacles, the old age, and infirmity, and solitary condition of one man is attacked. ”

“ And nations were timidly sensitive to the opinion of individuals. But now we court foreigners and flatter them, and just as there is a vote of thanks at any one's pleasure, so even more eagerly is a prosecution decided on. Well; let it be decided on, and let the provincials retain the right of showing their power in this fashion, but as for false praise which has been extorted by entreaties, let it be as much checked as fraud or tyranny. More faults are often committed, while we are trying to oblige than while we are giving offence. Nay, some virtues are actually hated ”

“ On the 4th of July Sufenas and Cato were acquitted, Procilius condemned. That shows us that our lights of the law care not a straw for bribery, elections, a political deadlock, treason or the country in general. They prefer one not to murder a father of a family in his own home; but even that preference has no overwhelming majority in its favour: for 22 voted for acquittal against 28 for condemnation. Publius no doubt had awakened the sympathy of the jury by his eloquent peroration for the prosecution. Hortalus was retained and behaved as usual. I did not utter
308 cuius modi solet. ”

“ He also raised the dignity of the Senate, by deciding that all who appealed from private judges to its house, were to incur the same pecuniary risk as those who referred their cause to the emperor. Hitherto such an appeal had been perfectly open, and free from penalty. At the close of the year Vibius Secundus, a Roman knight, on the accusation of the Moors, was convicted of extortion, and banished from Italy, contriving through the influence of his brother Vibius Crispus to escape heavier punishment. ”

“ Suppose that an Athenian citizen or officer became involved in dispute with a Chian, would not the Athenian dikastery be the competent court, whichever of the two were plaintiff or defendant? Suppose a Chian citizen or magistrate to be suspected of fomenting revolt, would it not be competent to any accuser, either Chian or Athenian, to indict him before the dikastery at Athens? Abuse of power, or peculation, committed by Athenian officers at Chios, must of course be brought before the Athenian dikasteries, just as much as if the crime had been committed at Thasos or Naxos. ”

“ For this reason it was not mentioned amongst the punishments against which a right of appeal was guaranteed to Roman citizens. All the laws which treat of the right of appeal speak of death, of scourging and of fine, as the penalties which are appealed against. The Senate then, or rather the consul acting under the advice of the Senate, is justified (so we must suppose Cæsar to maintain) in punishing dangerous enemies of the State so long as the punishment inflicted is not one forbidden totidem verbis by the statute. ”

“ Confiscation was part of the penalty for treason which the Holy Roman Empire had copied word for word out of the old Roman law. Therefore, says Pope Innocent III, heretics deserve to have their goods confiscated even more than traitors, inasmuch as they betray the majesty of God Himself who is obviously greater than all earthly sovereigns. The great Pope mentions the fact that, under the Roman law, traitors lost their lives as well as their property, and that heresy involved treason against God, the King of Kings, but did not follow out his premises to their logical conclusion. ”

“ Trio, abandoning the prosecution on this count, obtained leave to accuse Piso's previous career, and the emperor was requested to undertake the inquiry. This even the accused did not refuse, fearing, as he did, the bias of the people and of the Senate; while Tiberius, he knew, was resolute enough to despise report, and was also entangled in his mother's complicity. Truth too would be more easily distinguished from perverse misrepresentation by a single judge, where a number would be swayed by hatred and ill-will. ”

“ Tacitus himself, who was averse to the emperor, recounts several incidents which show him in the act of intervening in trials of high treason for the benefit of the accused precisely for the purpose of hindering these excesses of private vengeance. The accounts which we have of many other trials are so brief and so biased that it is not fair for us to hazard a judgment. ”

“ On a man's being convicted of forgery, some one cried out that his hands ought to be cut off; whereupon Claudius insisted that an executioner be summoned at once with knife and block. In a case involving citizenship a fruitless dispute arose among the advocates as to whether the defendant ought to make his appearance in the toga [42] or in a Greek mantle, and the emperor, with the idea of showing absolute impartiality, made him change his garb several times, according as he was accused or defended. ”

“ A citizen of Lima pursued a slave into the house of a salaried official, whereupon the tribunal forthwith ordered his arrest. The royal Audiencia intervened, representing to the viceroy, the Marquis of Castel-Fuerte, that the officials enjoyed only the passive and not the active fuero; that the pretensions of the Inquisition, if admitted, would destroy the royal jurisdiction, and that an order should be issued requiring the aggrieved party{387} to plead in the Audiencia. ”

“ After the defendant had been condemned, this kind of accusation gradually went so far that even such acts as these were regarded as capital crimes: to beat a slave near a statue of Augustus, or to change one's clothes there; to carry a ring or coin stamped with his image into a privy or a brothel, or to criticize any word or act of his. Finally, a man was put to death merely for allowing an honour to be voted him in his native town on the same day that honours had previously been voted to Augustus. ”

“ A consular of Rome has been murdered in his own house by a slave’s treachery, and an unrepealed decree of the Senate threatens punishment to the whole family of slaves who neither prevented nor revealed the plot. Decree impunity for them, that when the chief magistracy of the city has been no protection we may each of us, forsooth, be defended by our own dignity! Who can be protected by any number of slaves, if four hundred were not enough to protect Pedanius Secundus? If fear did not suffice to make his slaves vigilant, which of us will be safe? ”

“ The prohibitions embodied in this are eloquent of the audacity of the inquisitors in exceeding their functions, abusing their authority in matters wholly outside of their jurisdiction and exercising an insufferably vexatious petty tyranny, the exasperating effect of which was intensified by the immunity enjoyed by the servants and slaves of the officials. These were justiciable only by the tribunal, which invariably protected them, so that the community was exposed without redress to the insolence of a class peculiarly apt to abuse its privileges. ”

“ But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively; [258] in some the people might have had a right to be judges in the [64] last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon. ”

“ But in the meantime, for all the Pope’s protest against the excessive severity of the Seville tribunal, this severity continued so undiminished, not only in Seville but also in the districts under the jurisdiction of other inquisitors, that there was a continuous emigration from Spain of the wealthy New-Christian families. Many of these repaired to Rome to appeal to the Pontifical Courts and to procure there an absolution which should accord them immunity from the Spanish tribunals of the Holy Office. ”

“ On May 1, just four weeks before the event, he had made a solemn declaration in the presence of numerous prelates and nobles to the effect that he had appealed to Rome against the commission of Dominican inquisitors by the provincial in his territories, and that he intended to prosecute that appeal. He protested that he earnestly desired the eradication of heresy, and urged the bishops to exercise energetically their ordinary power to that end, promising his full support to them and the execution of the law both as to confiscation and the death-penalty. ”

“ Things are drifting towards an interregnum: and a dictatorship is in the air. There is a great deal of talk about it, which helped Gabinius with timid jurors. All the candidates for the consulship are accused of bribery. Gabinius is with them too. P. Sulla applied for the prosecution of him, suspecting that he would be too out of pocket to bribe a jury. Torquatus applied too ”

“ They should remember Caius Asinius and Messala, and, in later days, Arruntius and Æserninus, men raised by a blameless life and by eloquence to the highest honours."
So spoke the consul-elect, and others agreed with him. A resolution was being framed to bring the guilty under the law of extortion, when Suilius and Cossutianus and the rest who saw themselves threatened with punishment rather than trial, for their guilt was manifest, gathered round the emperor, and prayed forgiveness for the past. ”

“ If they succeeded in their prosecution, they were exposed to the resentment of a considerable and active party, to the censure of the more liberal portion of mankind, and to the ignominy which, in every age and country, has attended the character of an informer. If, on the contrary, they failed in their proofs, they incurred the severe and perhaps capital penalty, which, according to a law published by the emperor Hadrian, was inflicted on those who falsely attributed to their fellow-citizens the crime of Christianity. ”

“ Latiaris, as I have related, had been foremost in contriving the ruin of Titius Sabinus, and was now the first to pay the penalty. By way of episode, Haterius Agrippa inveighed against the consuls of the previous year for now sitting silent after their threats of impeaching one another. "It must be fear," he said, "and a guilty conscience which are acting as a bond of union. But the senators must not keep back what they have heard." Regulus replied that he was awaiting the opportunity for vengeance, and meant to press it in the emperor's presence. ”

“ And Sextus Titius was condemned for having an image of Lucius Saturninus in his house. The Roman knights laid it down by that decision that that man was a worthless citizen, and one who ought not to be allowed to remain in the state, who either by keeping his image sought, to do credit to the death of a man who was seditious to such a degree as to become an enemy to the republic, or who sought by pity to excite the regrets of ignorant men, or who showed his own inclination to imitate such villainy. ”

“ These show us the man, the others reveal only the sovereign. Just one month after his election, a manifesto of amnesty for all political offenders was published at Rome, including the exiles, those awaiting trial, and those undergoing sentence. The only conditions imposed were that the individuals pardoned should give their word of honor never to abuse the indulgence, and would fulfil every duty of a good citizen. ”

“ Then did Roman soldiers rush forward like men who had to drive a Vologeses or Pacorus from the ancestral throne of the Arsacidae, not as though they were hastening to murder their aged and defenceless Emperor. In all the terror of their arms, and at the full speed of their horses, they burst into the Forum, thrusting aside the crowd and trampling on the Senate. Neither the sight of the Capitol, nor the sanctity of the overhanging temples, nor the thought of rulers past or future, could deter them from committing a crime, which any one succeeding to power must avenge. ”

“ The vilest wretches used a growing freedom in exciting insult and obloquy against respectable citizens, and escaped punishment by clasping some statue of the emperor. The very freedman or slave was often an actual terror to his patron or master whom he would menace by word and gesture. Accordingly Caius Cestius, a senator, argued that "though princes were like deities, yet even the gods listened only to righteous prayers from their suppliants, and that no one fled to the Capitol or any other temple in Rome to use it as an auxiliary in crime. ”