6.4. 5. In what Governments the Sovereign may be Judge.
Machiavel
[6]
attributes the loss of the liberty of Florence to the
people's not judging in a body in cases of high treason against
themselves, as was customary at Rome. For this purpose they had eight
judges: "but the few," says Machiavel, "are corrupted by a few." I
should willingly adopt the maxim of this great man. But as in those
cases the political interest prevails in some measure over the civil
(for it is always an inconvenience that the people should be judges in
their own cause), in order to remedy this evil, the laws must provide as
much as possible for the security of individuals.
With this view the Roman legislators did two things: they gave the
persons accused permission to banish themselves
[7]
before sentence was pronounced;
[8]
and they ordained that the goods of those who were
condemned should be sacred, to prevent their being confiscated to the
people. We shall see in Book XI the other limitations that were set to
the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of
their power in criminal judgments. He ordained that the Court of
Areopagus should re-examine the affair; that if they believed the party
accused was unjustly acquitted
[9]
they should impeach him again before the people; that if they believed him
unjustly condemned
[10] [10]
they should prevent the execution of the sentence, and make them rejudge
the proceeding — an admirable law, that subjected the people to the censure
of the magistracy which they most revered, and even to their own!
In affairs of this kind it is always proper to throw in some delays,
especially when the party accused is under confinement; to the end that
the people may grow calm and give their judgment coolly.
In despotic governments, the prince himself may be judge. But in
monarchies this cannot be; the constitution by such means would be
subverted, and the dependent intermediate powers annihilated; all set
forms of judgment would cease; fear would take possession of the
people's minds, and paleness spread itself over every countenance: the
more confidence, honour, affection, and security in the subject, the
more extended is the power of the monarch.
We shall give here a few more reflections on this point. In
monarchies, the prince is the party that prosecutes the person accused,
and causes him to be punished or acquitted. Now, were he himself to sit
upon the trial, he would be both judge and party.
In this government the prince has frequently the benefit of
confiscation, so that here again, by determining criminal causes, he
would be both judge and party.
Further, by this method he would deprive himself of the most
glorious attribute of sovereignty, namely, that of granting pardon,
[11]
for it would be quite ridiculous of him to make and unmake his
decisions; surely he would not choose to contradict himself.
Besides, this would be confounding all ideas; it would be impossible
to tell whether a man was acquitted, or received his pardon.
Louis XIII being desirous to sit in judgment upon the trial of the
Duke de la Valette,
[12]
sent for some members of the parliament and of
the privy council, to debate the matter; upon their being ordered by the
king to give their opinion concerning the warrant for his arrest, the
president, De Believre, said "that he found it very strange that a
prince should pass sentence upon a subject; that kings had reserved to
themselves the power of pardoning, and left that of condemning to their
officers; that his majesty wanted to see before him at the bar a person
who, by his decision, was to be hurried away into the other world! That
the prince's countenance should inspire with hopes, and not confound
with fears; that his presence alone removed ecclesiastic censures; and
that subjects ought not to go away dissatisfied from the sovereign."
When sentence was passed, the same magistrate declared, "This is an
unprecedented judgment to see, contrary to the example of past ages — a
king of France, in the quality of a judge, condemning a gentleman to
death."
[13]
Again, sentences passed by the prince would be an inexhaustible
source of injustice and abuse; the courtiers by their importunity would
always be able to extort his decisions. Some Roman emperors were so mad
as to sit as judges themselves; the consequence was that no reigns ever
so surprised the world with oppression and injustice.
"Claudius," says Tacitus,
[14]
"having appropriated to himself the determination of lawsuits, and the function of magistrates, gave
occasion to all manner of rapine." But Nero, upon coming to the empire
after Claudius, endeavoured to conciliate the minds of the people by
declaring "that he would take care not to be judge himself in private
causes, that the parties might not be exposed within the walls of a
palace to the iniquitous influence of a few freedmen."
[15]
"Under the reign of Arcadius," says Zozimus,
[16]
"a swarm of calumniators spread themselves on every side, and infested the court.
Upon a person's decease, it was immediately supposed he had left no
children;
[17]
and, in consequence of this, his property was given away
by a rescript. For as the prince was surprisingly stupid, and the
empress excessively enterprising, she was a slave to the insatiable
avarice of her domestics and confidants; insomuch that to an honest man
nothing could be more desirable than death."
"Formerly," says Procopius
[18]
"there used to be very few people at court; but in Justinian's reign, as
the judges had no longer the liberty
of administering justice, their tribunals were deserted, while the
prince's palace resounded with the litigious clamours of the several
parties." Everybody knows what a prostitution there was of public
judgments, and even of the very laws themselves, at that emperor's
court.
The laws are the eye of the prince; by them he sees what would
otherwise escape his observation. Should he attempt the function of a
judge, he would not then labour for himself, but for impostors, whose
aim is to deceive him.
Footnotes
[6]
"Discourse on the First Decade of Livy," Book i., 7.
[7]
This is well explained in Cicero's oration "Pro Cæcina," towards the
end, 100.
[8]
This was the law at Athens, as appears by Demosthenes. Socrates
refused to make use of it.
[9]
Demosthenes, "De Corona," p. 494, Frankfort, 1604.
[10]
See Philostratus, "Lives of the Sophists," Book i., "Life of Æschines."
[11]
Plato does not think it right that kings, who, as he says, are
priests, should preside at trials where people are condemned to death,
to exile, or to imprisonment.
[12]
See the account of the trial of the Duke de la Valette. It is
printed in the "Memoirs of Montresor," tome ii, p. 62.
[13]
It was afterwards revoked. See the same account, ii. p. 236. It
was ordinarily a right of the peerage that a peer criminally accused
should be judged by the king, as Francis II in the trial of the Prince
of Cond, and Charles VII in the case of the Duc d'Alenon. To-day, the
presence of the king at the trial of a peer, in order to condemn him
would seem an act of tyranny. — Voltaire.
[17]
The same disorder happened under Theodosius the younger.
