Edward Snowden And The Public Interest Defense: Part 2 – The Risk To Power of The Popular Will

By Mark Esposito, Guest Blogger

This is the second 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. You can read the first installment of the series here.

The Trial of Publius Horatius

Publius Horatius (The Younger)
Publius Horatius (The Younger)

When last we met Publius Horatius, soldier of Rome, he had saved the Eternal City from disaster in an epic battle of champions and then was quite ceremoniously convicted of  treason against the state for the murder of his sister thus preventing the Senate from dealing with her traitorous grief over one of the fallen foe of Rome. In a clever legal maneuver made at the secret behest of the Roman king, Tullus Hostilius, who distrusted the designs of the Senate in passing him this hot potato of a case,  Publius invoked the ancient right of every Roman citizen to a provocatio ad populum — a direct appeal to the people of Rome. Readers of the Christian Bible will likely recall that Paul of Tarsus was likewise accorded this right by virtue of his Roman citizenship, though by this time Rome had moved from a republic to an empire and the appeal was made to Cæsar himself.#

The provocatio was codified in Roman law in 509 BCE  by one of Rome’s first consul,  Publius Valerius Publicola, but its origins go back to the dawn of the civilizations on the Italian peninsula when elders from each clan would meet at the central marketplace to resolve disputes and consider issues which affected them all. These patres would elect kings, provide for the common defense, and generally wield power and favor as they saw fit. Even before the Roman Senate first met in the days immediately after the City of Rome was founded (traditionally set at 753 BCE) the right to trial by the people was established. This tradition held doubly true for crimes we would now call “political crimes” against the peace and dignity of the commonwealth.

Publius had invoked this method of trial because he knew the people harbored a deep distrust of government. He also knew that the people would consider more than the technical merits of the treason charge known to the ancient Romans as perduellio.

In presenting his defense, Publius called his father to speak to the assembled men of Rome. Also known as Publius, the elder Horatius began be reciting the threat posed by the Albans and the fact that the struggle between Rome and her sister city had been an unholy combat since both city-states traced their origins to Romulus, the feral child suckled by wolves who founded both cities. He then explained that battle of champions was decided both by the guile of his son and the will of the gods themselves. He even went on to condemn his slain daughter for treason against the state and her family for her grief over one sworn  to violently cause the subjugation of Rome. He praised his son for defending the city at the risk of his own life and against overwhelming odds. In the mind of his father, the younger Publius’ actions were just.

Publius the Elder then explained that the trial would have an impact on him by depriving him of his sole surviving heir, an incredible tragedy in this patriarchal society. Hugging his son and pointing an accusing finger at the spears of the Curiatii brought to the city as spoils by the younger Publius, the desperate father explained:

“Citizens, can you stand by and watch while this man, who only recently returned as the triumphant victor bearing the spoils of war, is bound to the stake, flagellated, and ultimately hanged? Even the people of Alba Longa could not endure such an appalling spectacle. Go, executioner bind the hands of the man who just now, with sword and shield prevented the Roman people from losing their freedom! Go, veil the face of the liberator of this city! Hang him from the gallows tree! Whip him! But if you flagellate him inside the city walls then you must do so next to these spears and the other captured weapons; if outside the walls, then you must beat him while standing among the graves of the Curiatii! For where could you take him where the brilliance of his deeds would not denounce such a gruesome punishment?” 

The emotional appeal had a profound affect on the Roman people. Moving too was the demeanor of the younger Publius who neither begged nor demanded his life be spared. To the proud Romans, courage, principle and patriotic regard for the state trumped sororicide and homage to the Senate. Publius was acquitted of treason but he was not exonerated. For his crime, Publius and his cohort were compelled to make sacrifices to Juno and to  publicly express contrition. The Elder Publius also arranged for his own punishment for the loss of his daughter at his son’s hand. Erecting a large wooden beam above the street where his son was acquitted, he ordered the hero of Rome to veil his face  and walk beneath the yolk in the same humiliation felt by all of Rome’s defeated enemies. No small penalty to a proud Roman soldier. Publius was also ordered to erect a monument where Horatia fell in a quiet grove near the Appian Way just across the border from Alba Longa.

The beam remained in place and maintained at public expense until the time of Livy who recounted the story and even beyond. The beam was meant to serve as a reminder that service to the state would mitigate but not excuse crimes. It was known in antiquity as the “sister’s beam” (Sororium Tigillum). 

Modern historians dispute Livy’s account of the legend of Publius Horatius noting that the Albans were subjugated by Rome much later that the date Livy prescribes. They also note that the penalty Publius faced would not have been hanging as his father mentioned but “sacking.” Sacking was the barbaric ritual punishment of being sew into a leather sack with unclean animals like poisonous snakes or monkeys and thrown into a river.

Whatever the accuracy of Livy’s account, the idea of the people’s supremacy over the law courts in matters of treason and capital punishment was firmly established. It was especially useful to monarchs to buffer criticism in trying popular defendants on charges of offending the dignity of the government. But  the practice came with a heavy and unpredictable price since it empowered citizens to override the pronouncements of kings. The notion of citizen judges of criminality would lead to the concept of juries which we have discussed was the first vague outline of direct democracy in monarchical systems.

Next Time: The Public Interest Defense

Source:  Liebs, Detlef. Summoned to the Roman Courts: Famous Trials from Antiquity. Berkeley: University of California, 2012. Print.

 8Then Paul made his defense: “I have done nothing wrong against the Jewish law or against the temple or against Caesar.”9 Festus, wishing to do the Jews a favor, said to Paul, “Are you willing to go up to Jerusalem and stand trial before me there on these charges?”10 Paul answered: “I am now standing before Caesar’s court, where I ought to be tried. I have not done any wrong to the Jews, as you yourself know very well. 11 If, however, I am guilty of doing anything deserving death, I do not refuse to die. But if the charges brought against me by these Jews are not true, no one has the right to hand me over to them. I appeal to Caesar!”12 After Festus had conferred with his council, he declared: “You have appealed to Caesar. To Caesar you will go!”
-Acts 25 (NIV ed.)

~Mark Esposito, Guest Blogger

9 thoughts on “Edward Snowden And The Public Interest Defense: Part 2 – The Risk To Power of The Popular Will”

  1. “I happen to be a fan of public referendums. Some here have scoffed @ them since they often thumb their nose @ ideology.” There is a good reason why this country is not a democracy. Remember, Hitler rode in on a wave of popularity. The people can halt a miscarriage of justice, but can also create one. Let’s not forget, California’s Prop 8 was approved by a majority of voters. Let’s be careful of supporting democracy, but only when it produces the right result.

  2. It’s getting more interesting. I happen to be a fan of public referendums. Some here have scoffed @ them since they often thumb their nose @ ideology.

    I did not know this history. When you have history teachers colleagues there is this weird dynamic where they loathe to admit they didn’t know some point of history. They don’t admit they just learned something new but it was obvious[to me anyway] they did. I never had a problem because who the hell can know ALL history, not even Wikipedia. Pretense is not very attractive.

  3. Excellent post mark…. You hail from that era…. I’m almost certain…you old soul….

  4. There is a lot of drama generated by using Roman quasi-legend, or any Roman dynamics for that matter, in considering a case where a patriotic whistleblower exposed an unpatriotic rogue element within our nation.

    I think it distracts some from the now we are facing, however, it may be required in today’s America to hold some readers’ attention.

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  6. A timely posting Mark. There seems to be a lot of “provocatio ad populum” going around. More and more often we hear the voice of the people on issues that our representatives wouldn’t normally touch like marriage and other civil rights for gays and marijuana legislation. We also see an increase in contra-activism where political agendas are driving legislation on woman’s rights and voting rights that are contrary to the majority of voters wishes.

    The peoples voice in demanding public policies (for better or worse) is becoming more common. That the citizens are asserting their supremacy over the law courts, and politicians is in general a healthy trend.

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