§1
It makes a great difference how seditions have been instituted. Sometimes subjects disagree among themselves; sometimes they rise against the magistrate. At times factions remain within words, accusations, and insults; at times their spirits blaze up into fights and killings. It also makes a great difference whether a sedition arises among townsmen or countrymen, or among armed men. For tumults of armed men are not easily restrained without the sword.
Seditions were rare in Roman camps, for reverence for the oath was great. The soldiery stoned the consul Postumius when he denied them the spoils he had promised; under Appius Claudius they refused to conquer. In later ages, when the power of creating magistrates had been transferred to the camps, seditions too migrated there.
§2
The ordinary punishment for seditions was capital, unless mercy dictated that the multitude be spared. Dio Cassius understands this of an atrocious sedition. If it remained within shouting or a light complaint about military service, the offender was cast down from his military rank. If a soldier had grasped the vine-staff, he changed his military service. And indeed the ultimate punishment was decreed for the man who stirred up sedition, even for those who appeal; for deference is not paid to an appeal, but the guilty man is punished at once with the penalty due.
For there are four kinds of crimes of maiestas. The first occurs when sovereign power is sought or the person of the prince is attacked; the second, when treason is undertaken; the third, when sedition is instituted; the fourth, when other lighter things are attempted against the prince. Evils permit no delays. Meanwhile all crimes of maiestas, either immediately or at least mediately, advance toward disturbing the state. Hence no one is exempted from torture in this cause.
Valentinian, Valens, and Gratian established in Code 9, title 8: “Let absolutely no one upon whom, without our consultation and knowledge, the torments of cords are inflicted be prohibited from employing a defense based on military service, birth, or dignity, with the sole exception of a cause of maiestas, in which alone there is an equal condition for all.” Given on the eighth day before the Ides of July, Valentinian the Younger and Victor being consuls. Thus Tiberius and Gaius Gracchus were killed by a concourse of men. In the same manner Carbo was killed as though by the state itself.
§3
Houses also are customarily confiscated or demolished. Maelius’s house was demolished, and the place is called the Aequimaelium. The house of Saturninus was also destroyed. Not only the houses of those who stirred up sedition, but also those in which forbidden assemblies were held, were destroyed. Sometimes monuments of crimes are set up, as we have seen done at Aachen and Frankfurt.
§4
Canon Law excommunicates seditious persons if, after being admonished, they are unwilling to return to peace, distinction 90, final canon: “It has been reported to the Apostolic See that some of you wish to harm their brethren and contend so that they may fall; that they likewise disagree in the sacraments, and that on this account contentions and rivalries arise among you. We command you to turn away from these dissensions, to agree in all these matters, and mutually to bring aid. For if you quickly neglect to do this and do not strive to be mutually reconciled, do not doubt that you will be driven from the communion of the Apostolic See and of the whole Church.”
It forbids them to be initiated into sacred orders, distinction 46, canon 8: “We establish that seditious persons are never to be ordained clerics, just as neither usurers nor avengers of their own injuries are to be ordained.” Those already initiated are deprived of their honor, canon Conspirationum, cause 11, question 1.
§5
The severity of the punishment is weighed according to the magnitude of the fault and the dignity of the persons. Under the ancient law, the authors of a sedition are either raised upon the fork, thrown to beasts, or deported to an island. In Germany they are cut into four parts and the heart is drawn out while it is still beating. These things must be understood of a sedition truly attempted and accompanied by some act or preparation for acting; for a slip of the tongue must not readily be drawn into punishment. Under Roman law, the man who attempted to stir up sedition was punished with a very heavy fine, not with death; by the first law On Seditious Persons, he was prohibited from spectacles. Demetrius the Cynic was relegated to an island by Vespasian because he debated too incautiously concerning the state. A certain Diogenes, who dared the same, was beaten with rods. Crates the Cynic was punished capitally. Dio, Vespasian.
But if they attempt it more often, they are struck with the sword. Callistratus, chapter 28, § solent, On Punishments, book 48, title 19, although at times they were punished with exile and at times by beating with cudgels. The law reads thus: “Certain men who commonly call themselves ‘young men’ are accustomed in certain cities to accommodate themselves to the turbulent acclamations of the populace. If they have admitted nothing further and have not previously been admonished by the governor, they are dismissed after being beaten with cudgels, or they are even prohibited from spectacles. But if, after being corrected in this manner, they are found in the same offenses, they must be punished with exile, and sometimes capitally—namely, when they have repeatedly conducted themselves seditiously and turbulently and, after being apprehended several times and treated more mildly, have persevered in the same settled rashness.”
No different practice was customary among Christians. In the year 788, as Sigebert is the authority, Hardrad and other nobles were put to death by Charlemagne because of sedition. Indeed, Pippin, the son of Charles, was thrust into a monastery, but those who were his instigators in conspiring against his father were subjected to punishments.
§6
Where a multitude has sinned, some part is enveloped in the punishment, yet in such a way that fear reaches all. Julius Caesar composed the soldiery in such a manner that those who had dared were each selected by lot for death. Macrinus likewise decimated them. Thus the punishment reached a few, the fear all.
When Leontius the prefect was being attacked by sedition on account of a charioteer who had committed a crime, he ordered whomever they encountered to be seized and hanged. This is certainly greatly disapproved, since very incautious men, although perhaps not innocent, pay the greatest penalties. Decimation, vicesimation, and centesimation are therefore better and more customary, because with little blood they bring much fear.
§7
When the sole survivor carrying news of the Aeginetan disaster related that all the Athenians had perished, he was pierced by the needles and brooches of the widows whose husbands had perished. The Areopagite Senate afterwards forbade the use of the kind of clothing which they were wearing at that time. They pursued a womanly but malevolent sedition with a civil punishment, and one grave nevertheless in proportion to the frailty of the sex.
The multitude must therefore be spared; the law also indicates this, book 48, title On Punishments, law 38: “Deserters to the enemy or revealers of our counsels are either burned alive or suspended upon the fork.” And: “The authors of seditions or tumults, when the people have been aroused, are, according to the quality of their dignity, either raised upon the fork, thrown to beasts, or deported to an island.”
The Code also looks back to this law, book 9, title 30: “If anyone should perhaps attempt, contrary to the most manifest command, to take up the cause of the plebs and defend it against public discipline, he will sustain a most severe fine.” And: “In no places or cities is anyone’s insulting interruption to proceed with tumultuous cries, nor are wanton words to be hurled merely to bring anyone into ill repute. Those who utter such voices and stir up tumults are to know that they will by no means obtain the fruit of the things they demand, but will be subjected to those punishments which the most ancient decrees established for the authors of sedition and tumult.”
Therefore participants in a sedition must be punished more moderately, but its authors more gravely. When the authors are uncertain, the multitude is punished more lightly. Gaius Curius acted thus, Frontinus, book 4, chapter 1: “When the consul Curio, in the Dardanian War near Dyrrachium, had five legions and one of them, after making a sedition, had refused military service and denied that it would follow the rashness of its commander on a harsh and dangerous expedition, he led out the four armed legions and ordered all of them to stand with weapons drawn as though in battle. After this he ordered the seditious legion to come forward unarmed and, ungirded in the sight of the armed army, compelled it to cut straw. On the following day he likewise compelled the ungirded soldiers to make a ditch; and no entreaties of the legion could obtain from him that he should not lower its standards, abolish its name, and distribute its soldiers as replacements among the remaining legions.”
§8
Those who speak evil of the prince are sometimes tolerated. Modestinus: “The person, namely, must be considered in this crime: whether he was capable of doing it, whether he contemplated it, and whether he was of sound mind; nor must a slip of the tongue readily be drawn into punishment. For although rash men are worthy of punishment, nevertheless they must be spared as though insane, if the offense is not of such a kind that it either descends from the letter of the law or must be judged as an example.”
The edict of Theodosius, Arcadius, and Honorius, Augustuses, Code 9, title 7, is most mild: “If anyone, ignorant of modesty and unacquainted with shame, should believe that our names must be assailed with a wicked and wanton curse, and, turbulent through drunkenness, should become a detractor from our times, we do not wish him to be subjected to punishment or to sustain anything hard or harsh; for if it proceeded from levity, it must be despised; if from madness, it is most worthy of pity; if from injury, it must be remitted. Hence, all things remaining unimpaired, let the matter be referred to our judgment, so that we may weigh men’s words from their persons and determine whether they ought to be passed over or investigated.” But if insults of pernicious example, or indeed the beginnings of seditions, should be scattered, that madness must be restrained by grave punishment.
§9
Some princes, however, exercised that inquiry severely. In the time of Tiberius, Paconianus was strangled in prison on account of poems repeatedly made against the prince. Caligula caused many men to be killed who, while flattering him, had called him “the young man of Augusta,” because he judged himself held in contempt. If anyone should seek a catalogue of these matters, the Lives of the Caesars will supply it; in them we read of very many punishments for words.
§10
Deservedly and justly, those who speak evil of princes, their revilers, and their mockers are gravely punished. And although it is pious and consonant with divine laws to remit offenses and injuries, and not to punish words with exiles or tortures—and although princes bind themselves with grave crime when they rage rashly against bodies on account of uttered words—nevertheless, at times it is lawful, and indeed necessary, to punish. The following determinations must therefore be made concerning this matter.
FIRST. It is a grave crime to speak evil of the prince, detract from his reputation, disclose hidden sins, exaggerate true things, and fasten falsehoods upon him. Thus the divine oracles: “You shall not speak evil of the gods, and you shall not speak evil of the prince of your people.” Exodus 22:28. And Numbers 12: Miriam, the sister of Moses, is struck with leprosy. “He who was angry departed; the cloud also withdrew which was over the tabernacle; and behold, Miriam appeared white with leprosy like snow. And when Aaron looked upon her and saw her covered with leprosy, he said to Moses: ‘I beseech you, my lord, do not lay this sin upon us, because we have acted foolishly. Let her not become as one dead and as an aborted child which is cast from its mother’s womb. Behold, half of her flesh has already been consumed by leprosy.’”
Consider the circumstance and gravity of the sin. Miriam, from rivalry and womanly contention, having drawn Aaron into the cause, spoke against Moses: “Has the Lord spoken only to Moses? Has he not also spoken to us?” Miriam spoke truths, for she was a prophetess and Aaron a prophet; but they owed honor to Moses as the greater. Miriam is punished so severely that leprosy consumes half her flesh. Aaron owed his escape from punishment to the priesthood, for God did not wish to afflict him with public disgrace as he did Miriam. Had Moses not poured out prayers for his sister, without doubt she would very swiftly have been consumed by leprosy and paid the penalty with death.
SECOND. It is lawful to punish with death those who speak evil of kings. Apostolic Canon 83 is cited: ὅστις ὑβρίσει βασιλέα, ἢ ἄρχοντα τιμωρίαν τινύτω, κἂ εἰ μὲν κληρικὸς καθαιρείσθω, εἰ δὲ λαϊκὸς ἀφοριζέσθω, “If anyone should insult a king or prince, let him pay the penalties; if indeed he is a cleric, let him be deposed; if a layman, let him be deprived of communion.” This Canon, I say, does not decree death, but deposition and excommunication; therefore some do not correctly translate τιμωρίαν as “capital punishment.”
The Greeks had a law that those who spoke evil should be led into chains. With that custom observed, the Triumvirs cast the poet Naevius into prison. Gellius, book 3, chapter 3. Dio relates that all injuries committed against the prince were judged to be impiety. Paconius was strangled in prison because of poems published against the prince. Therefore the offense is not simply remitted; rather, the evaluation belongs to the prince, so that he may weigh men’s words from their persons and decide whether they ought to be passed over or investigated.
Certainly evil words against a magistrate have always been regarded among crimes of maiestas, and at times they are exceedingly injurious and seditious alike. When, therefore, the magistrate, who is the vicar of God, is affected with ignominy, he can avenge the public injury. When incitements to tumults arise from evil words, he cannot neglect his reputation, since the safety of his subjects rests upon it. The reason is that a man gravely harms the state when he detracts authority from its head and makes contemptible or hated the man whom all ought to reverence in the place of God. For all these things are incitements to seditions and secessions.
§11
It is not lawful to rage against the friends and children of conspirators, for this is forbidden by divine law, Deuteronomy 24:16 and 4 Kings 14:6: “And when Amaziah had obtained the kingdom, he struck his servants who had killed the king his father; but he did not kill the sons of those who had killed him.”
In Persia, therefore, the custom was cruel and unjust whereby the children and wives—and even the households—of those who had attempted something against the king were killed. Justin, book 10; Plutarch, Artaxerxes. The greater part of the kings of Israel did the same, destroying the entire household of their predecessors lest some avenger arise. The same law existed among the Macedonians, as Curtius relates in book 6. It was a wicked and dangerous law, for no equity permits an entire household to perish for the offense of one man. But who cannot infer how great a danger to kings was created from it, when for the sake of one assailant many brave men attempted everything, shaking off their danger by flight, killing, and treason? Hence the continual killings of kings, despite the severity of the law.
Archelaus killed Alcetas with his son Alexander; he himself was killed by a young man whom he had mocked. Orestes, Archelaus, and Pausanias followed; after they had been extinguished within a very short interval, the kingdom again devolved upon Amyntas. His son Alexander was killed by the man of Alorus, and the man of Alorus by Perdiccas. Finally, on the occasion of this law, the whole progeny of Alexander was killed. For Cassander killed Olympias, Alexander’s mother; Roxana, Alexander’s wife, with her son Alexander; and Barsine, his other wife, with her son Hercules. Demades the orator was also killed by Antipater after his son had first been slaughtered in his embrace. Yet nothing was effected by such cruelty. The son Antipater killed his mother; Alexander, the other son, killed his brother Antipater; Demetrius killed Alexander. At almost the same time the stock of Alexander was removed by Cassander and the stock of Cassander by his rivals, and on each side rage was directed against the women.
The clemency of King Mithridates was praised: after he had exacted punishment from Attilius the plotter and from the conspirators, he dismissed the servants because they had offended not voluntarily but under unhappy necessity.
On this matter there exist laws of Arcadius and Honorius which are mild and consonant with equity, Code 9, title 8, On the Julian Law of Maiestas: “Whoever shall enter into a criminal faction with soldiers, private persons, or barbarians, or shall accept or administer the oath of that faction, and shall even plot against illustrious men who take part in our councils and consistory, against senators also—for they too are a part of our body—or, finally, against any man who serves us: since the laws have willed that the intention of a crime be punished with the same severity as its accomplishment, he himself, as guilty of maiestas, shall be struck with the sword, all his goods being assigned to our treasury.
“But his sons, to whom by special imperial mildness we concede life—for they ought to perish by their father’s punishment, since in them examples of the paternal, that is, hereditary, crime are feared—shall be excluded from the inheritance and succession of their mother or grandmother and of all their nearest kin; they shall take nothing under the wills of outsiders; they shall be perpetually needy and poor; their father’s infamy shall always accompany them; they shall attain absolutely no honors and no oaths of service. Finally, they shall be such that, while they are defiled by perpetual want, death shall be a consolation to them and life a punishment. Finally, we command that those who ever attempt to intervene with us on behalf of such persons shall themselves be marked without pardon.
“But to their daughters, however many in number they may be, we will that only the Falcidian fourth from the goods of their mother—whether she dies testate or intestate—shall come, so that the daughters may possess moderate support rather than the whole advantage and name of an heir. For the sentence ought to be milder toward those whom, on account of the weakness of their sex, we trust will dare less. Emancipations, moreover, which shall have been conferred by the aforesaid persons—whether upon sons, but only after the law was promulgated, or upon daughters—shall not be valid. Dowries, gifts, and, finally, alienations of any property whatsoever which it is established were made by any fraud or law from the time when the aforementioned persons first contemplated entering into a faction and association, we establish to be of no force.
“The wives of the aforesaid persons, after recovering their dowry, if they shall have been in that condition in which they are obliged to preserve for their children the things which they received from their husbands under the title of gift, shall know that, at the time when the usufruct is extinguished, they will leave to our treasury all those things which according to law were owed to the children; and from these goods also the Falcidian fourth shall be deemed assigned to the daughters only, not to the sons. What we have provided concerning the aforesaid persons and their sons, we judge with similar severity concerning their attendants, accomplices, and ministers and their sons.
“But if any one of these men, at the beginning of the faction that has been entered into, inflamed by zeal for true praise, shall betray the faction that was entered into, he shall be gifted by us with both reward and honor. But the man who shall have made use of the faction, if—even late, yet while it is still unknown—he shall disclose the secrets of its counsels, shall be regarded as worthy only of absolution and pardon.” In these provisions many special measures are established for averting the crime.
§12
If anyone violates the prince or a subordinate magistrate—whether a proconsul, the prince’s vicar, or a son designated as successor—the same crime of maiestas is committed. For when it is said that this crime is committed if anyone violates a magistrate of the Roman people, this is not understood of the consuls or Augustus alone. Indeed, if anyone beats the attendants of a magistrate, he is customarily punished capitally; this, however, must be understood when they are exercising the function of their office.
Otherwise, those who opposed the attendants and prefects of Nero or Gaius when they prowled by night were certainly not guilty of maiestas, since not the citizens themselves but the intimates of the princes were stirring up seditions and disturbances. Nor do the sacred Canons punish as assailants of clerics those who restrain clerics while they run about by night in secular dress. It has expressly been said that, if an inferior magistrate is discharging his office, the man who opposes him is regarded as seditious or as a disturber, but not if he is doing other things. At Rome a prostitute was acquitted who shut out an Aedile while he was reveling and wounded him with the blow of a stone when he attempted to break in by force.