Toga

“ What do you say of another dispute I have heard of before the same court of the Centumviri? A man during his banishment had come to Rome, and claimed the protection of the Roman laws relating to banished persons, he had then applied himself to somebody to be, as it were, his patron, and then died intestate; in such a cause, is not the obscure and unknown [53] laws relating to application to be laid open in the trial, and explained by the advocate in his pleading? ”

“ As for instance,—"If any one accuses a man who, while he was praetor, summoned the people to take up arms for an expedition, at a time when the consuls were in the city." For as in the previous instance the accused person showed that the matter in question had no connexion with his duty or his power, so in this case also, the prosecutor himself, by removing the action done from the duty and power of the person who is put on his trial, confirms the accusation by this very argument. ”

“ If any one prevents another by force from being present at a trial, whether a principal party or his witnesses; if the person prevented be a slave, whether his own or belonging to another, the suit shall be incomplete and invalid; but if he who is prevented be a freeman, besides the suit being incomplete, the other who has prevented him shall be imprisoned for a year, and shall be prosecuted for kidnapping by any one who pleases. ”

“ But if he did not restore them, then they were to go before the tribunal, to inform the judges of the injuries they had received, but, far above all things, to complain of the insults to their religion. And, in the name of the immortal gods I entreat you, O judges, do not you despise, do not you scorn or think lightly of their complaints. The injuries done to our allies are the present question; the authority of the laws is at stake; the reputation and the honesty of our courts of justice is at stake. ”

“ All these accusations, none of which had any foundation in fact, served the Tribunal as a pretext to treat me as an enemy of the commonwealth and as a prime conspirator. For several weeks I was counselled by persons whom I might have trusted to go abroad whilst the Tribunal was engaged on my case. This should have been enough, for the only people who can live in peace at Venice are those whose existence the Tribunal is ignorant of, but I obstinately despised all these hints. ”

“ When you invade the province of the jury, in matter of libel, you, in effect, attack the liberty of the press, and with a single stroke, wound two of your greatest enemies.—In some instances you have succeeded, because jurymen are too often ignorant of their own rights, and too apt to be awed by the authority of a chief justice. In other criminal prosecutions, the malice of the design is confessedly as much the subject of consideration to a jury, as the certainty of the fact. ”

“ A Court is a foul place always, even so attenuated a Court as that which Philip of Spain encouraged. Rumour thrives in it, scandal blossoms luxuriantly in its fetid atmosphere. And rumour and scandal had been busy with the Princess of Eboli and me, though I did not dream it. ”

“ Moreover, if there be any persons, who in the case of the criminal have any inclination to show themselves powerful, or audacious, or ingenious in corrupting the tribunal, let them hold themselves ready, seeing that they will have to fight a battle with us, while the Roman people will be the judges of the contest. ”

“ Those who lose their causes complain more loudly and more continuously than is the custom in other places, but without any more reason. Most of the important civil cases are decided in the tribunal of the Rota. Now, in spite of the habitual license of Italian criticism, no one has dared to express a doubt of the profound knowledge and the exalted integrity of the tribunal of the Rota. If the lawyers are incredibly fertile in raising objections and exceptions—if they lengthen out lawsuits—to what is this fault to be attributed if not to the peculiarity of the national genius? ”

“ The jury are empanneled; a great speech is brewing on the opposite side; you can hear the whiz of preparation in the very breathing of the Adversary; but up rises our friend—by the supposition a very clear-headed, able and honest lawyer—and so states the principle of law upon which he depends, that the court rules in his favor, no speeches are made, and the jury are discharged. And now comes the tug of war. The client begs a moment of the lawyer’s time, and asks what’s to pay: “Fifty dollars.” ”

“ In the constitution of that state of 1776, it was declared that 'in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.' 2 Charters and Constitutions, 1410. ”

“ We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing the trial by jury would have been in practice, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king's officers sitting in the trial of criminal cases, been observed. ”

“ If the secular judge has any reason to allege to the contrary he is to present himself in person or by procurator to the tribunal, which will render justice, and all this is under holy obedience and the threat of major excommunication and a heavy fine. If there are any papers in the case the scrivener is ordered to surrender them, and the accuser or plaintiff is to appear within a time specified and receive justice, in default of which the case will be heard without him and without further notice. ”

“ With such a case as yours, my Lord, it is not sufficient that you have the court at your devotion, unless you can find means to corrupt or intimidate the jury. The collective body of the people form that jury, and from their decision there is but one appeal. ”

“ A suit in this Court is become proverbial for something interminable; and there is a very diverting caricature, which bears the inscription, ‘A Chancery Suit.’ At first a young man handsomely dressed, and in high blooming health, fills the hat of a starved skeleton of a lawyer with guineas, by way of retaining fee. A long, long procession of men and things follows; and at last we see the young man as a ragged broken-down beggar, asking alms of the lawyer, now grown fat as a tun, which the latter scornfully refuses. ”

“ All I ask in the name of this illustrious foreigner is, that the court which tries him be pure, and the jury instructed in the cause; that the work be not condemned for wanting what it was not meant to have, and by persons nowise called to pass sentence on it. ”

“ Trial by jury, for example, is looked upon by all as the Palladium of our liberties; yet a jury, at a very recent period of our own history, the reign of Charles II., was a tribunal as iniquitous as the Inquisition.’ And a graver expression stole over the countenance of Sidonia as he remembered what that Inquisition had operated on his own race and his own destiny. ”

“ If private men offend, there is the Magistrate over them, which judgeth; if Magistrates, they have their Prince; if Princes, there is Heaven, a tribunal, before which they shall appear; on earth they are not accountable to any. ”

“ And as your dignity is exceedingly inconsistent with this law, so his false hopes and preeminent impudence are strongly in favor of it. In this case, if anything blameworthy be done by any of you, either the Roman people itself will judge that man whom it has already pronounced unworthy of any trial at all; or else those men will judge, who, because of the unpopularity of the existing tribunals, will be appointed as new judges by a new law made respecting the old judges. ”

“ In the thirteenth century the Justicia was already judge between the king and his subjects; every precaution was taken to render him independent; he was irremovable by the king and even his resignation was void; he could accept no office from the king; he was not liable to arrest and in a case of prosecution the Córtes sat in judgement on him; every person in the kingdom was required to obey his commands, to respect his decisions and to aid in their enforcement. ”

“ For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. ”

“ His character is under the protection of the court.”
“No, sir!” said the advocate, with energy; “no court, however high,—no tribunal, beneath that of Heaven itself, whose decrees we dare not question,—can throw a shield over a man like this. There are crimes which stain the nation they occur in; which, happening in our age, make men sorry for their generation, and wish they had lived in other times.” ”

“ Let the litigants throng, as they ought to do, to the Courts of their Cognitores. Do not be gnawed by envy of their pomp. The true praise of the Goths is law-abidingness [601] . The more seldom the litigant is seen in your presence the greater is your renown. Do you defend the State with your arms; let the Romans plead before their own law courts in peace. ”

“ The laws were, at that time, all written in Latin.
[15] "No man shall be condemned at the king's suit, either before the king in his bench, where pleas are coram rege, (before the king,) (and so are the words nec super eum ibimus, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus, to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land."—2 Coke's Inst., 46. ”

“ He goes into a court of justice, and sees men in their grotesque but imposing costume haranguing the judge and the jury, and without further thought he resolves that he too will be an orator and haranguer. ”

“ Even in the territories of the Pope, a criminal court is in these days an open and public one. There is no jury, and the criminal, or suspected person, may be subjected to any amount of examination on oath. ”

“ The learned counsel for appellants rely upon a number of cases which are said to warrant the court in habeas corpus proceedings in examining the bill of exceptions with a view to determining such matters as are herein presented. But an examination of these cases will show that where collateral attacks have been sustained through the medium of a writ of habeas corpus, the grounds were such as attacked the validity of the judgments, and the objections sustained were such as rendered the judgment not merely erroneous, but void. ”

“ Lastly, let that definition of impartial tribunals which has been handed down to us from our ancestors be still retained; that in them crimes are punished without any regard being had to the popularity or unpopularity of the accused party; and unpopularity is got rid of without any crime being supposed to have been ever attached to it. 6And, therefore, O judges, I beg this of you before I begin to speak of the cause itself; in the first place, as is most reasonable, that you will bring no prejudice into court with you. ”

“ While the counsel rehearsed the long array of judicial mistakes, the jurist on the bench was rehearsing mentally the points he meant to make in his charge to the Jury. As it took form, the Judge felt that it would be clear, logical and convincing, and would make the lawyer's plea seem foolishly emotional—unworthy of serious consideration by hard-headed men of the world. ”

“ But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign. 2. The task of convening the citizens for the trial of each offender became more difficult, as the citizens and the offenders continually multiplied; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. ”

“ Nor indeed does the opposite party say anything to the contrary, but they adopt the same report of the judges having been bribed. Nor indeed have they any contrary opinion to that which we wish to be entertained about his modesty, integrity, and virtue; but they thought it quite impossible for the accuser to be passed over after the judges had been punished. And with respect to this whole business, if I produce one precedent from the whole of our ancient history, I will say no more. ”

“ Then again a trumpet was heard, but the trumpet of a mighty archangel; and then would roll away thick clouds and vapors. Again the audience, but another audience, was assembled; again the tribunal was established; again the court was set; but a tribunal and a court—how different to her! That had been composed of men seeking indeed for truth, but themselves erring and fallible creatures; the witnesses had been full of lies, the judges of darkness. ”

“ The inquisitors were roundly taken to task for lending themselves to the schemes of the receiver in buying up debts and claims and then collecting them through the tribunal; they were told that they must defend none but salaried officials actually in service; if they are plaintiffs in civil suits they must apply to the court of the defendants, while if they are defendants the plaintiffs must seek the tribunal. To evoke other cases, he says, causes great scandal and will lead to troubles which must be prevented. ”