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CRIMEN LAESAE MAIESTATIS a Tudy of Oman Aw Nfluences N Ld Oland S CRIMEN LAESAE MAIESTATIS AsRliioP tudy of oman aw nfluences n ld oland Publications of the Faculty of Law, Canon Law and Administration of the John Paul II Catholic Univ ersity of Lublin V6olume EDITORIAL BOARD Piotr Stanisz (C hair) Artur Kuś Sławomir Fundowicz Delaine Swenson Leszek Adamowicz Magdalena Pyter Marzena Dyjakowska CRIMEN LAESAE MAIESTATIS AsRliioP tudy of oman aw nfluences n ld oland Wydawnictwo KUL Lublin 2013 English translation Konrad Szulga Typesetting Patrycja Czerniak Cover design Agnieszka Gawryszuk On the cover U. Tengler, Leyenspiegel. Von rechtmässigen ordnungen in Burgerlichen und Peinlichen Regimenten. Mit additionen ursprüngklicher rechtsprüchen. Auch der Göldin Bulla, Königklicher Reformation, Landtfriden…, Strassburg 1530 © Copyright by Wydawnictwo KUL, Lublin 2013 ISBN 978-83-7702-784-4 PUBLISHER Wydawnictwo KUL PRINTING AND BINDING ul. Zbożowa 61, 20-827 Lublin elpil tel. 81 740-93-40, fax 81 740-93-50 ul. Artyleryjska 11 e-mail: [email protected] 08-110 Siedlce http:// wydawnictwo.kul.lublin.pl e-mail: [email protected] Contents List of Abbreviations . 9 Introduction . 11 Section 1 The Subject of the Research . 11 Section 2 The Sources . 12 Section 3 The Research Literature . 14 Section 4 The Aim of This Work and Research Problems . 17 Section 5 The Structure of This Work . 19 CHAPTER I The Roman Roots of Crimen Maiestatis Section 6 The Roman Notion of Maiestas . 21 Section 7 Perduellio and Crimen Maiestatis in Roman Legal Sources . 28 Section 8 Roman Legislation on Perduellio and Crimen Maiestatis . 32 Section 9 Offences Classified in Roman Law as Lese-Majesty . 40 Section 10 Punishability of the Stage-Dependent Forms of an Offence . 52 Section 11 Sanctions for the Offence of Lese-Majesty According to the Roman Legal Sources . 54 1. Capital Punishment and Interdictio Aquae et Ignis . 54 2. Confiscation of Property . 62 3. Infamy . 64 4. Damnatio Memoriae . 69 Section 12 Liability of the Wrongdoer’s Family under the Lex Quisquis . 75 Section 13 The Distinctive Features of the Roman Process in Lese-Majesty Cases . 78 Contents Section 14 Roman Crimen Maiestatis as a Foundation of the European Doctrine . 81 CHAPTER II Maiestas and Crimen Maiestatis in the European Doctrine from the 16th through the 18th Centuries Section 15 The Influence of Roman law on the Concept of Crimes against the State in the Collections of Germanic Laws . 83 Section 16 The Reception of Roman Crimen Maiestatis in Medieval Europe . 89 Section 17 The Definitions of Maiestas and Crimen Maiestatis in the European Doctrine . 93 Section 18 Offences Classified by the Doctrine asCrimen Laesae Maiestatis . 99 Section 19 The Influence of Roman Law on Western Authors’ Views Regarding the Sanctions and the Distinctive Features of the Crime of Lese-Majesty . 110 Section 20 The European Background to the Adoption of Crimen Maiestatis in Poland . 117 CHAPTER III The Influence of Roman Law on the Concept of the Crime of Lese-Majesty in the Polish Legal Sources and the Doctrine from the 16th through the 18th Centuries Section 21 The Polish Legal Sources on the Crime of Lese-Majesty . 119 Section 22 Polish Legal Literature from the 16th to the 18th Century . 122 Section 23 Majesty and the Crime of Lese-Majesty in the Polish Doctrine from the 16th through the 18th Centuries . 130 Section 24 Acts Classified as Lese-Majesty in the Light of the Sources of Law and Doctrine in Old Poland . 133 1. Assassination Attempt on the Monarch and Other Persons under Legal Protection . 133 2 . Crimen Maiestatis and Perduellio . 140 3. Heresy as Crimen Laesae Maiestatis . 147 4. Other Offences . 150 Section 25 Forms of Criminal Action According to the Polish Legal Sources and the Doctrine . 153 Section 26 Phenomenal Forms and Stages of Crimen Maiestatis in the Output of Polish Legal Writers . 156 Section 27 Sanctions for Crimen Laesae Maiestatis in Poland . 161 6 Contents 1. General . 161 2. Infamy . 165 3. Confiscation of Property . 170 Section 28 Liability of the Wrongdoer’s Family in the Polish Doctrine . 175 Section 29 Distinctive Features of Lese-Majesty Proceedings in Poland . 179 Section 30 Roman Law as a Unifying Factor in the Polish Doctrine on Crimen Laesae Maiestatis . 189 CHAPTER IV Roman Law in Crimen Laesae Maiestatis Trials from 16th to 18th Century Section 31 Selected Lese-Majesty Trials in Poland before the Turn of the 18th Century . 193 Section 32 The Problem of Admissibility of the Subsidiary Application of Roman Law in Cases Involving Maiestas . 199 Section 33 Roman Law and the Legal Classification of Certain Forms of Lese-Majesty . 208 1. Defamation of the Monarch . 208 2. Arguments for a Broader Legal Protection . 213 Section 34 Examples of the Use of Roman Law for Evidence Evaluation . 216 Section 35 The Influence of Common Law on the Assessment of the Stages of Commission and Phenomenal Forms of the Offence . 219 Section 36 The Use of Roman Law in the Assessment of Circumstances Excluding Unlawfulness or Guilt . 225 Section 37 A Subsidiary Role of Roman Law in Deciding the Size of Penalty . 231 Section 38 The Problem of Direct Application of Roman Law in Crimen Laesae Maiestatis Proceedings in Poland . 237 Conclusion . 241 Bibliography . 247 Index of sources . 257 7 List of Abbreviations C. – “Codex Iustinianus.” In Corpus Iuris Civilis. Vol. II. Krueger, P. Ed. Berolini 1963. Constitutio – „Die peinliche Gerichtsordnung Kaiser Karls V. Constitutio Criminalis criminalis Carolina.“ In Die Carolina und ihre Vorgängerinnen . Carolina Vol. I. Kohler, V.J., Scheel, W. Eds. Halle 1900. C.Th. – “Codex Theodosianus.” In Theodosiani libri XVI cum constitu- tionibus sirmondianis. Mommsen, T., Krüger, P. Eds. Berolini 1905. D. – “Digesta.” In Corpus Iuris Civilis. Vol. I, Mommsen, T., Krüger, P. Eds. Berolini 1954. Decretum Gratiani – “Decretum Magistri Gratiani.” In Corpus Iuris Canonici . Vol. I. Friedberg, E. Ed. Leipzig 1879. Fragmenta Vaticana – “Iuris anteiustiniani fragmenta quae dicuntur Vaticana.” In Fontes Iuris Romani Anteiustiniani. Vol. II, Riccobono, S., Bavi- era, J., Ferrini, C., Furlani, J. & Arangio-Ruiz, V. Eds. Floren- tiae 1941. G. – Gai Institutiones. Seckel, E., Kübler, B. Eds. Lipsiae 1909. I . – “Institiutiones.” In Corpus Iuris Civilis. Vol. II. Mommsen, T., Krüger, P. Eds. Berolini 1959. Liber Sextus – “Liber Sextus Decretalium Domini Bonifacii Papae VIII.” In Corpus Iuris Canonici. Vol. I, Friedberg, E. Ed. Berolini 1881. Nov. – “Novellae.” In Corpus Iuris Civilis. Vol. III. Mommsen, T., Krüger, P. Eds. Berolini 1905. Pauli Sententiae – “Pauli Sententiae.” In Fontes Iuris Romani Anteiustini- ani. Vol. II. Riccobono, S., Baviera, J., Ferrini, C., Furlani, J. & Arangio – Ruiz, V. Eds. Florentiae 1941. RE – Paulys Realenzyklopädie der classichen Alterumwissenschaft . neue Bearb. von Wissowa, G., Kroll, W., Mittelhaus, K., Zie- gler, K. Stuttgart 1894. List of Abbreviations Regulae Ulpiani – “Tituli XXVIII ex corpore Ulpiani qui vulgo Domitio Ulpi- ano adhuc tribuuntur.” In Fontes Iuris Romani Anteiustin- iani. Vol. II. Riccobono, S., Baviera, J., Ferrini, C., Furlani, J. & Arangio – Ruiz, V. Eds. Florentiae 1941. 10 Introduction Section 1 The Subject of the Research Recent years have seen a mounting interest of the romanistic studies in Poland in Roman criminal law,1 which, as a portion of the Roman legal leg- acy, made its way into the legal system of pre-partition Poland. In addition to numerous examples of the use of the Roman criminal law standards,2 lese-majesty deserves particular attention. The concept of an offence against the reigning sovereign, referred to as lese-majesty, or a crime violating the majesty, derived from the law of Republican Rome. It was understood as an act directed against the sovereignty of the Roman people and first named crimen maiestatis and later crimen imminutae maiestatis. In the earliest days of ancient Rome, offences that later merged with the above-mentioned con- cepts were associated with high treason - perduellio, which was punished capitally. In the Late Republic, offences known as crimen maiestatis, in par- ticular: betrayal of the country, collusion with the enemy, mutiny, an insult to magistrates, etc. were prosecuted under, for example, the lex Appuleia of 103 BC, the lex Cornelia de maiestate of 81 BC and the lex Iulia maiestatis from 1 Summarized results of the research on Roman criminal law have been collected by, in particular: Zabłocka, M. Romanistyka polska po II wojnie światowej . Warszawa 2002, pp. 123-134 (the chapter on penal law); Kuryłowicz, M. „Rzymskie prawo karne w polskich badaniach romanistycznych.” Zeszyty Naukowe Uniwersytetu Rzeszowskiego, Prawo 1(2003), fasc. 7, p. 167f. 2 Examples of the reception of Roman legal instruments or instances of their direct application are provided by Sondel, J. “Prawo rzymskie w procesie sprawców porwania Stanisława Augusta.” In Crimina et mores. Prawo karne i obyczaje w starożytnym Rzymie. Kuryłowicz, M., ed., Lublin 2001, p. 191. Introduction the reign of Caesar. The offence was given prominence during the Princi- pate when the object of protection against assault was the ruler himself. Punished was not only a direct assault on the emperor, but also any instance of disrespect for the ruler’s name or image, as well as the refusal to venerate him, etc. During the Dominate, the list of instances of conduct qualified as crimen laesae maiestatis swelled considerably, and it was not only the perpe- trators who suffered punishment but also their supporters and even family members. The basic legal regulation covering the matter was contained in Title 8, Book 9 of the Justinian Code: “Ad legem Iuliam maiestatis.” This institution was accommodated to the legal systems of the Middle Ages, first by German emperors ardently acknowledging their Roman succession, and later by the Church, whose head, the pope, regarded himself - beginning with the second half of the 11th century, and especially in the 12th centu- ry - as superior to the empire; consequently, the provisions on crimen laes- ae maiestatis were embedded in the collections of canon law.
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