dward Snowden And The Public Interest Defense: Part 1 – What An Old Roman Can Teach Us About The Defense Of Political Crimes
Published 1, January 3, 2014 Bizarre , Constitutional Law , Courts , Criminal law , Free Speech ,Justice , Lawyering , Media , Politics , Society 10 Comments
By Mark Esposito, Guest Blogger
This is the first of a multi-part article on the Public Interest Defense and its application to the the Edward Snowden situation. The defense is not recognized in America but other nations have considered this legal mechanism to provide an appropriate way to deflect criminal charges from whistleblowers like Snowden.
The Legend of Publius Horatius
The Oath of the Horatii
For centuries, children in ancient Rome would recount the legend of Publius Horatius, one of three Horatius brothers (known as the Horatii), who fought to defend Rome from attack by the militaristic and close-by Italian city-state of Alba Longa. Rather than engage in a pitched battle of armies for supremacy of the peninsula and subject all of Latinium (as Italy was then known) to the vulnerability of foreign attack, Rome and her rival opted to name a triumvirate of champions to fight to the death to decide the fates of two ancient megalopolises. One would emerge as the dominating power and the other would be relegated to a vassal state. The Horatii seemed the obvious choice among the Roman legionnaires as the triplet brothers were unequaled among their peers in strength and martial prowess. Swearing an oath to fight to the death, the brothers strode to the Field of Mars to battle for both the glory and survival of Rome. For her part, Alba Longa chose her own incredibly coincident set of warrior triplets known as the Curiatius brothers (or the Curiatii) who swore an equally obligating oath to “return either with their shields or on them” as a Spartan might say.
The ferocious battle did not go well for the champions of Rome as both of Publius’ brothers fell early in the contest, but not before inflicting wounds of varying degrees of severity on their mirror-image opponents. As the legions of Alba Longa cheered, Publius, who was relatively unscathed, did the sensible thing and retreated, post-haste, to the Roman lines in an ignoble display of cowardice or so thought the Albans. Giving chase, the Curiatii moved at different paces due to their injuries allowing Publius to wheel around suddenly and take on his attackers in solo combat thus defeating them each in their own turn.
Returning to the adulation of the his Roman compatriots, he was met by his sister, Horatia, who had the misfortune to be engaged in marriage to one of the Curiatii. Seeing the cloak of her fallen lover (that Horatia had made herself) now around her brother’s shoulders, she tore her hair and wept inconsolably mourning his loss. She also did the unthinkable and blamed Publius for the “murder” of her soon-to-be husband. Enraged, Publius drew his sword and slayed his sister uttering the famous words, “Get lost! Join your betrothed, with your misplaced love, since you have forgotten your brothers, both the dead and the living, and forgotten your country! So perish every Roman woman who mourns a foe.”
Bad news travels faster than military columns (even in 670 BCE) and standing before the outstretched gates of Rome, the surviving Horatius brother encountered an enraged Senate as murder of a family member without just cause (sorocide) was a capital offense and considered much worse than just plain old everyday murder (but not worse than usury which carried Rome’s only mandatory death sentence with no possibility of leniency) by the patriarchal society within the walls. More important to the Senate, however, was what many of its members viewed as usurpation of its function to try and punish traitors like the heart-broken (but cursed with historically unmatched bad timing), Horatia. In the eyes of the white-robed Senators, Publius for all his ingenuity and valor was guilty of the Roman crime of perduellio. Found in the Twelve Tables, perduellio originally meant engaging in conduct that “stirred up an enemy” or resulted in the handing over of a Roman citizen to the enemy. However, as Rome grew into a military power with designs on empire, the crime morphed into a political offense. At the time of Publius Horatius, the crime was defined as an offense which “injured or brought into danger the dignity, supremacy, and power of the commonwealth.” Horatia’s punishment belonged to the Senate and not the victorious champion who stood before the assembled senators.
Publius was charged with treason and dragged before King Tullus Hostilius who wanted no part of the case involving both a confirmed hero of the kingdom and the alleged murderer of one of the daughters of one of Rome’s prominent families — by her brother, no less. Messy, politically speaking, and politics was all that Hostilius was talking. To avoid the criticism either verdict would entail, Hostilius, according to prevailing law, appointed two Roman nobles (the duumviri) to decide the case, knowing full well the only sentence acceptable to the Senate would be death for the man who had just saved Rome from ruin. (Interestingly our Constitution, requires the word of two witnesses to convict one of treason in deference to this hoary Roman custom (Art. III, Sec. 3)). The fix was obviously in, and Publius was, in due course, sentenced to death by the duumviri thus affording King Hostilius what we now call plausible deniability. The king was not done with case, however.
A man as clearly resourceful as Publius Horatius was no fool, and he embarked on a surprising course following the reading of the death sentence. Rather than accept his fate obediently as the executioner approached, Publius made an appeal to the people on the secret advice of none other than King Hostilius, who obviously knew how to work a room in the political sense. Hedging his bets that the people would forgive him if he executed the savior of the city on less than compelling grounds in the collective mind of the ancient Romans, Hostilius surreptitiously called for what passed for the “nuclear option” in his day, by throwing the case to the citizens as a whole and thereby showing the senators that, regardless of their wishes, he would not be their patsy and take the fall. The senators were aghast, but tradition was tradition and they had no choice but to allow the plebiscite on Publius’s guilt or innocence and, most importantly, his sentence, if convicted.
Next Time: The Trial of Publius Horatius
~Mark Esposito, Guest Blogger
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