Greece, Rome, and the Bill of Rights (23 page)

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Authors: Susan Ford Wiltshire

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could approach the platform, called the
bema
, to address the people and to move a measure.

59
It was also permitted for a citizen to speak twice on the same item of the agenda.
60

In addition to libel laws with monetary fines, two other features of Athenian politics, while not limiting freedom of speech, affected the climate in which political participation was conducted. As Jennifer Tolbert Roberts has shown, the Athenian system of accountability was quite severe by modern standards. Even victorious generals might be executed, as in the case of the victors of Arginusae. Those who took leadership roles in public life understood the risks.
61
Further, they did so with no parliamentary or party system and no governmental bureaucracy to support them if they ran afoul of public favor. Individual leaders were on their own.
62
Another was ostracism, a practice devised apparently by Clesithenes in 508507 to protect the system of Athenian democracy against politicians who became too powerful.
63
The law was first enforced against Harpokration in 488487 and remained on the books until the late fourth century.
64
Under this law, the Ecclesia decided once a year whether or not to take a vote, in a following meeting, on whether someone should be banished. Votes were scratched into an
ostrakon
or broken piece of pottery. If such a vote were taken and a total of six thousand votes cast, the person receiving the highest number was banished.
65
This citizen was then expelled from the city for a period of ten years, though without disgrace and without loss of civic rights. It was not necessary to have committed any crime against the state, only to be considered potentially dangerous. Of the nine generally agreed-upon cases of ostracism, all were against politically prominent individuals. Fitzgerald suggests that this practice served a cautionary function in politics, noting that it must have been a cause of some anxiety for Pericles upon entering a public career that both his father and his uncle had been ostracized.
66
There has been much debate about whether the people had genuine sovereignty over public affairs at Athens.

 

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While there was a certain separation of powers among the assembly, the lawcourts (
dikasteria
), and the legislative commissions (
nomothetai
), the latter two groups were also chosen by lot, so that Aristotle's observation that in a democracy "all citizens deliberate about all matters"

67
was achieved through rotation. All citizens who wished to participate in the Ecclesia could do so simultaneously; as members of the law courts and of the legislative commissions, they took turns. For these offices, about two thousand public officials were chosen by lot for rotating terms of one year. Hansen prefers the term
kyrios
(master) to sovereignty: if a citizen in the fourth century had been asked who was
kyrios
in Athens, he would have answered, the laws (
nomoi
), the people (
demos
), and the jurors in the peoples' courts (
dikasteria
).
68

Rome differs fundamentally from Athens in regard to freedom of speech. Chaim Wirszubski observes that although citizens had a vote in the Roman assemblies, they had no right to make their voice heard. Freedom of speech, in the sense that any citizen had the
right
to speak, did not exist in the Roman assemblies.
69
A. G. Woodhead also comments on the contrast between Athenians and Romans in this regard; in Rome the aristocracy succeeded in keeping so firm a grip on the "democratic possibilities inherent in the constitution" that citizens in the
comitia
could vote, but nothing more.
70
With the fall of the republic after what Ronald Syme calls the "Roman revolution," liberty was lost, but it was a liberty that only a minority at Rome had ever enjoyed. No Roman ever conceived of any principle of government other than oligarchy, so that political freedoms for individuals were never present in the Roman mind.
71
So thoroughly was this the case that given a choice in the chaotic last years of the Roman Republic between the old
libertas
and peace, peace was preferred even if it were under a despotism.
72
Cum domino pax ista venit
, Lucan observed: "Peace came with monarchy."
73
The democratic traditions of equality of law and equal right to speak,
isonomia
and
isegoria
, were entirely absent from the Roman situation from the beginning. In their

 

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place was the guiding principle of authority,
auctoritas
, as exercised by an oligarchy of preeminent citizensthe whole Senate as a body and the senior statesmen,
principes viri
. From an oligarchy of the few to a tyranny of one, the distance is scant. Augustus arrogated to himself all the powers of the Senate, magistrates, and laws

74
through elaboration of his own
auctoritas
.
75
His title was
princeps
not, as Tacitus notes, king or dictator
76
but it would not be too many years before Seneca, in counseling the young Nero to practice clemency, would casually use the terms
princeps
and
rex
interchangeably. Princes and kings, he advises, by whatever name, are caretakers of the public realm:
principes regesque et quocumque alio nomine sunt tutores status publici
.
77
Rome turned out after all to be not so far from the monarchy it despised and thought it had ended in 510
B.C.

Senators had possessed the assumed privilege if not the right to speak freely. Cicero in the
Laws
says, "A senator's absence from a meeting of the senate shall be either for cause or culpable. A senator shall speak in his turn and at moderate length. He shall be conversant with public affairs."
78
Tacitus, mourning the loss of public life under the empire, notes that when domestic affairs were debated in the Senate during the Republic, there was freedom of discourse. Among the glories Tacitus attributed to the republic over the listless and oppressive empire was "a free scope for digression,"
libero egressu
, in the discussion of domestic politics.
79
The case of Cremutius Cordus illustrates the loss of freedom of speech under the empire by members of the Senate, for whom alone it had been a prerogative of power, an assumed privilege of their power rather than an inherent or natural right. Cremutius Cordus was a republican historian whose works "proscribed to all eternity the authors of the proscriptions,"
80
Augustus and Marcus Antonius. He glorified Cicero, Brutus, and Cassius while refusing to celebrate Augustus. Surviving the principate of Augustus, Cordus was prosecuted under Tiberius and, after a speech attacking the evils of despotism, anticipated his conviction by committing suicide by starvation in

 

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A.D.
25. His works were burned,

81
a travesty earning the scorn of Tacitus, who uses this episode to deride the stupidity of despots who think they can erase the present from the remembrances of the next generation.
82

Syme believes that Cremutius Cordus was threatened on various counts, not only because of his writings, and that Tacitus is expressing his own beliefs through his account of Cremutius's eloquent vindication of a historian's rights and freedom of speech.
83
"The speech," declares Syme, is indeed "all Tacitus." The emperor, says Tacitus, listened to the speech with an angry frown. Cremutius proclaims his innocence of having praised Brutus and Cassius by appealing to other panegyrics under Augustus in praise of the latter's enemies, Cicero's praise of Cato, and the harangues of Brutus against Augustus. Yet Julius Caesar and Augustus let these things pass, ''whether in forbearance or in wisdom I cannot easily say. Assuredly what is despised is soon forgotten; when you resent a thing, you seem to recognize it.''
Then Cremutius closes:
Of the Greeks I say nothing; with them not only liberty, but even license went unpunished, or if a person aimed at chastising, he retaliated on satire by satire. It has, however, always been perfectly open to us without any one to censure, to speak freely of those whom death has withdrawn alike from the partialities of hatred or esteem. Are Cassius and Brutus now in arms on the fields of Philippi, and am I with them rousing the people by harangues to stir up civil war? Did they not fall more than seventy years ago, and as they are known to us by statues which even the conqueror did not destroy, so too is not some portion of their memory preserved for us by historians? To every man posterity gives his due honor, and, if a fatal sentence hangs over me, there will be those who will remember me as well as Cassius and Brutus.
84
In summary, freedom of speech in the form of
isegoria
in the Athenian Ecclesia approached the status of a right, at least for fully enfranchised citizens. Its purpose, however, was always the well-being of the state, not the free-

 

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dom of the individual. At Rome, speech was much more severely curtailed and was an assumed privilege only among the members of the senatorial class. With the end of the republic, even the semblance of free speech was lost.
Right to Peaceable Assembly
In prohibiting Congress from abridging the right of peaceable assembly, the First Amendment refers not to established governmental bodies but to informal gatherings outside politically sanctioned structures. Nevertheless, the Greek and Roman assemblies, together with the Roman suspicion of all private societies, provide historical perspective on the problem of free association of citizens within a state.
The rise of popular assemblies in ancient Athens is a study in the rise of democracy. Unlike the Roman assemblies, which severely and purposefully limited the role of the individual, the Athenian popular assembly was the seedbed of the idea that members of the citizen body have an equal and direct access to the public arena. Until the eighteenth century, the term "representative democracy" would have been considered a contradiction in terms. Until the first mention by Jeremy Bentham in
A Fragment on Government
(1776) and by Alexander Hamilton in a letter of May, 1777, democracy was always taken to mean direct democracy.

85

The first tear in the aristocratic fabric that bound the early Greek cities seems to lie in the changing nature of military organization. Initially a tyranny was maintained by the well-armed and mounted entourage of a single aristocrat, who gathered members of his family and other dependent nobles into a "phratry" that was a tightly knit military and social unit. Gradually an easier supply of metal and increasing wealth multiplied the number of military champions and the rise of the infantry or hoplite system. While still including cavalry units, the army now depended on the armed infantry soldiers, or hoplites, who

 

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