__________________________________________________________________ Leonidas Zelmanovitz pro Liberty in the Political Institutions of the 21 st Century Introduction Once upon a time , there was a republic with an established constitutional government . At a time when most of humanity was living under ineffectual laws , the institutions of this republic allowed its people the enjoyment of property rights and freedom of contract . 1 The republic ’ s foreign policy was seen internally and externally ( except for some of its closest neighbors that suffered the brunt of its might ) as mainly motivated by self-defense concerns . Although during the last century or so of its existence this republic became a world power , its political institutions were specially designed to address local issues and to produce equilibrium between the republic ’ s political factions . 1 Incidentally , that is why citizenship enfranchisement became a big issue to them ; in order to benefit from their ( relatively ) benign laws , aliens living under the republic used to press for enfranchisement . Although history attests that , at one time , all citizens , even among the most prestigious families in the republic , were foreigners , the traditions and fragile political equilibrium always stood in the way of a clear policy on that regard . But that did not prevent massive enfranchisements and economic integration on a scale never seen before by mankind . The powers to propose and veto legislation and the power of criminal prosecution on behalf of the state granted to a special class of magistrates , the tribunes , are good examples of the compromises made to accommodate confronting factions in the design of their political institutions . 2 Why did this republic in a relatively short time come to be seen not only by its enemies but also by a significant portion of its people as an autocracy and an imperial power ? Why were the state law enforcement agents perceived as politically motivated in their actions , putting in jeopardy a tradition of respect for individual rights ? I am talking , of course , about the Roman republic . 2 The tribunes were not technically magistrates , but an institution created by the Plebs ( Gruen , 1974 , p . 180 ). LEONIDAS ZELMANOVITZ holds a law degree from the Federal University of Rio Grande do Sul ( Brazil ), and a doctorate in Applied Economics from Universidad Rey Juan Carlos ( Madrid ). He is currently a Senior Fellow of Liberty Fund in Indianapolis ( USA ). This is a revised version of a paper originally prepared for presentation at the General Meeting of the Mont Pèlerin Society ( Guatemala City , November 2006 ). Laissez-Faire , No . 50-51 ( Marzo-Sept 2019 ): 36-52

__________________________________________________________________ Overview This paper has three major parts . The first is a brief history of the crisis of the Roman republic from a special and limited perspective , the second part is an analysis of some modern political institutions , and the third part is a conclusion about those institutions as enlightened by the given historical reference . With the first part my intention is to present a historical reference of the abuse of criminal prosecution by state agents with political motivation , the attempts to reform it , the failure of the reforms , and its importance in the demise of the Roman republic . The second part evaluates the modern institution of criminal prosecution in its constitutional contexts and some implications of the politicization of public prosecution . The last part is my conclusion . Let ’ s start with the historical account . 1 – Brief Account of the Crisis of the Roman Republic The peak of Roman republican history was achieved with the total victory of the consul Marius against the Cimbrii and the Teutones at the battle of Vercellae ( July , 101 BC ) ( Gruen , 1968 , p . 179 ). Rome was already the master of the Mediterranean world and no outside power was strong enough to pose a military threat . Soon after that war , the enfranchisement of the Italian allies , possible through the offices of the tribune Livius Drusus , was frustrated by his murder in 91 BC . The Civil War began , followed ( 89 BC ) by the first war against Mithridates , an event in itself that could be traced to the internal strife , since the invasion of the Asian province by Mithridates was a consequence of a Marian provocation ( Luce , 1970 , p . 387 ). As we will see , after 50 years of turbulence , starting with these events , the Roman republic no longer existed . The end of the Roman republic cannot be explained by a single cause , however . If it is considered that the Republic ended when Julius Caesar crossed the Rubicon ( 49 BC ), a fairly accepted mark , and if it is agreed that his action was essentially an attempt to avoid politically motivated legal prosecution , then , the political use ( or abuse , if you will ), of the prosecutorial powers during the Roman republic was directly responsible for its fall . What this paper suggests is that the prosecutorial powers of the tribunes were frequently abused for political reasons . I want to suggest that Sulla ’ s settlement in 80 BC , preventing those magistrates from having a future political career , was a good measure in order to keep justice , peace and progress in Rome ; in fact , I want to suggest that it was such a good measure that its adoption should be considered in modern western democracies if the goals of justice , peace and progress are to be pursued . Let ’ s look now how Roman criminal law used to work . Roman criminal law may be classified broadly into ( a ) the domestic jurisdiction , ( b ) crimes against the person , ( c ) crimes against property such as theft and swindling ( stellionatus ), and ( d ) crimes against the State in the secular sense . Criminal law related with crimes against the state dealt with different crimes : ( a ) treason and sedition ( vis ), ( b ) crimes which could only be committed by persons holding or striving for office , __________________________________________________________________ 37

__________________________________________________________________ such as extortion , embezzlement of public funds or electoral corruption , ( c ) counterfeiting coinage , and ( d ) with offences against the public food supply ( Robinson , 1995 , p . 74 ). Although private individuals could legally act as prosecutors in cases related with crimes against the state , those crimes were the quintessential ground for the exercise of prosecutorial powers by the tribunes , and we will see that most of the politically motivated charges were charges of treason ( most commonly charges of maiestas ). These charges were usually brought to political trials if not for any other reason , because it was typically difficult to classify some action as being treacherous or not under Roman law ; the crime of Maiestas , for instance , was defined as “ damaging the majesty of the Roman people ” ( Gruen , 1974 , p . 263 ). Charges of perduellio were also very common during the republic . Individuals condemned of that crime would theoretically face the death penalty , but accusations of perduellio were so mixed with politics that the penalty was usually exile ( Robinso , 1995 , p . 78 ). One thing that strikes any person studying the period of the Roman republic before , during and shortly after Sulla ’ s restoration is the frequency and regularity with which criminal prosecution was utilized as a political weapon ( Gruen , 1968 , p . 6 ). As political struggles were transformed into judicial disputes , it is easy to see why an important part of Sulla ’ s program was an attempt to curb this political use of the courts . It is also easy to understand why the political elite readily agreed to lift those curbs after his death . But , what was a political trial ? According to Erich Gruen : A Political Trial may be defined independently of the charges involved : a criminal prosecution motivated by political purposes . In addition to treason , common charges were extortion , electoral bribery , judicial corruption , theft of public funds , and even homicide ( Gruen , 1968 , p . 6 ). The political use of the courts , as we will see , could serve several functions . Still according to Gruen : Criminal prosecutions provided an avenue for young men to make a name at the bar and to launch a public career . They also served to air and often to aggravate personal rivalries . On occasion , constitutional and legal issues of the greatest significance turned on the outcome of a prosecution , and finally , the criminal trial was a common vehicle for factional struggles within the governing class , or indeed a means whereby to attack that class itself ( Gruen , 1968 , p . 7 ). This paper will focus on the criminal causes proposed by tribunes and not on political trials in general ; those are mentioned in this paper only to provide a broader picture to the issue in question . The hypothesis that I am trying to present here is based on an analogy between the modern public prosecutors and the Tribunes of the ancient Roman Republic . That analogy , however , is an imperfect one ; there were no public prosecutors in Rome as we know them today . The very boundaries between civil and criminal cases are not easy to grasp . As Andrew Lintott put it : There was in any case no public prosecutor in Rome : the gap was filled in varying ways according to the procedure used – by magistrates such as the tribune or the aedile in an assembly , by wronged parties or their relatives , or , in the majority of the Quaestiones Perpetuae and certain trials before Recuperatores , where it was permitted to bring actions on behalf of the __________________________________________________________________ 38

__________________________________________________________________ Roman people or of other injured individuals , by private citizens ( Lintott , 1999a , p . 148 ). For the purposes of this paper , however , I think that the analogy is valid and can indeed illuminate us on the adequate constitutional designs required to have criminal prosecution that is not driven by political motivation . In 149 BC the Lex Calpurnia established the first permanent courts reported in Roman history , under which , panels of senators acted as sworn jurors to deal with claims of provincial extortion . Thereafter , both the senatorial special commissions and also the jurisdiction of the assemblies began in their turn to be superseded by the creation of Quaestiones Perpetuae , permanent jury courts , whose structure , if not purpose , was modeled somewhat on the lex Calpurnia ( Robinson , 1995 , p . 1 ). During the dictatorship of Sulla ( 82- 81 BC ), a system of permanent , standing jury courts was established ; once competent jury courts were established , trials were not taken to the assemblies anymore . During the late republic , the jury panels , originally composed of senators , were transferred to the equestrians under C . Gracchus legislation , transferred back to the senators under Sulla , who doubled the size of the Senate with that purpose , and finally in 70 BC under a lex Aurelia , it was established that the juries for the Quaestiones Perpetuae would be manned by senators , equestrians and tribuni aerarii , an arrangement that lasted until the end of the republic . In his book The Magistrates of the Roman Republic , Professor T . Robert S . Broughton had listed all the historical references to Sulla ’ s law related to the follows : “ The Tribunician veto was limited , the right to initiate legislation removed , and also the right to hold further office ” ( Broughton , 1951 , p . 75 ). 3 It is not difficult to understand how Sulla came to the conclusion that the use of the prosecutorial powers of the tribunate to foster future public careers should be limited . We can apply the Occam ’ s razor and do not hypothesize more than the minimum required : he was a victim himself . His return from the governorship of Cappadocia in 95 B . C . brought the inevitable repetundae prosecution ( Gruen , 1968 , p . 198 ). The prosecutor , C . Marcius Censorinus , failed in his handling of the case and the charges were dropped . According to Plutarch ( Sulla , 5 . 6 ), though evidences were lacking , the maneuver sufficed to plant suspicions , including rumors of bribery by Mithridates and as a consequence , Sulla ’ s career was delayed for another 7 years . 4 3 Professor Broughton lists all the original sources to Sulla ’ s law related to the Tribunes as follows : The Tribunician veto was limited , the right to initiate legislation removed , and also the right to hold further office . Cicero – On Laws - Book 3 , 22 ; Cicero – Against Verres - Books 2 , 122 and 155 ; Cluent . 110 ; Julius Caesar – The Civil War – Book 1 , 5 and 7 ; Sallustus , Hist . 3 . 48 . 8 and 12M ; Dionysius of Halicarnassus – 5 . 77 . 4 ; Vell . 2 . 30 . 4 ; Ascon . 67 , 78 , 81C ; Plutarch – Caesar – 4 . 2 ; Suetonius - Julius Ceasar – 5 ; Appian – The Civil Wars – Book 1 , 100 and Book 2 , 29 ; Livy Per . 89 ; Auct . Vir . Ill . 75 . 11 ; cf . Cic . Verres . 2 . 1 . 122 ; Tull . 38 ; Ps . -Ascon . 255 Stangl . 4 The events that preceded Sulla ’ s controversial actions during the year 88 B . C . can be well understood if we notice that the tribune P . Sulpicius Rufus unscrupulously employed bands of men to precipitate violence in the streets and browbeat the assembly into trans- tribunes and summarized the topic as ferring the Mithridatic command from Sulla __________________________________________________________________ 39