OF THE COHESION AND MUTUAL DEPENDENCE OF THE HEAD AND MEMBERS OF THE COMMONWEALTH; AND THAT THE PRINCE IS AS IT WERE THE LIKENESS OF DEITY; AND OF THE CRIME OF LÈSE MAJESTÉ, AND OF THE OBLIGATIONS OF FEALTY.
For myself, I am satisfied and persuaded that loyal shoulders should uphold the power of the ruler; and not only do I submit to his power patiently, but with pleasure, so long as it is exercised in subjection to God and follows His ordinances. But on the other hand if it resists and opposes the divine commandments, and wishes to make me share in its war against God; then with unrestrained voice I answer back that God must be preferred before any man on earth. Therefore inferiors should cleave and cohere to their superiors, and all the limbs should be in subjection to the head; but always and only on condition that religion is kept inviolate. We read that Socrates framed a polity for a commonwealth and laid down precepts therefor which are said to flow from the purity of wisdom as from a natural fountain. And this one thing he emphasized above all else, that the more humble elements of the commonwealth should receive proportionately greater care and attention from those in higher station as part of their public duty. Read diligently again the "Instruction of Trajan," of which mention has been made above, and you will find these things discussed there at large.
Let it suffice at present to have said so much concerning the unity of head and members, adding only what we have already premised, namely that an injury to the head, as we have said above, is brought home to all the members, and that a wound unjustly inflicted on any member tends to the injury of the head. Furthermore whatsoever is attempted foully and with malice against the head, or corporate community, of the members, is a crime of the greatest gravity and nearest to sacrilege; for as the latter is an attempt against God, so the former is an attack upon the prince, who is admitted to be as it were the likeness of deity upon earth. And therefore it is called the crime of lèse majesté, for the reason that it is aimed against the likeness of Him who alone, as the famous Count Robert of Leicester, a man who modestly discharged the office of proconsul in the British lands, was wont to say, wears the truth of true and native majesty, - to wit if any one undertakes aught against the security of the prince or of the people, either directly or through another. In the punishment of such a man, all are treated as of equal rank and in like case; and generally it comes to pass that such men, with whom none have any commerce in life, are not even released by the kindness of death; but if they are convicted, then after death their memory is condemned and their goods are forfeited by their heirs. For where the wickedness of an offender lies as here in having taken most wicked counsel, for such an offense he is punished as it were in mind. And when once a man has committed such a crime, it is settled that he can neither legally alienate nor manumit, nor can his debtor lawfully discharge his debt to him. [Justinian, Codex IX.8, 4-6] Because of the greatness of this crime, even infamous persons who in other cases do not have the right of bringing accusations are here permitted to do so without any impediment, as well as soldiers, who may not maintain other actions. For those who are on guard to defend the peace are all the more properly admitted to bring this charge. Also slaves may lawfully inform against their masters and freedmen against their patrons. Nevertheless this accusation is not to be dealt with by judges as an opportunity for displaying their subservience to the prince's majesty, but solely on the basis of the truth. The person of the accused must be looked to, as to whether he could have done the act, and whether he actually did it, or whether he devised it, and whether, before he presumed so far, he was of sane mind. Nor ought a mere slip of the tongue to be drawn readily on to punishment; for although the foolhardy are deserving of punishment, still even such men should be spared if their offense is not one which flows directly from the letter of the law or which must be punished in accordance with the analogy of the law. [Digest XVIII, 4, 7] Women also are heard on a question of lèse majesté; for the conspiracy of Sergius Cathelina was disclosed by a woman, a certain Julia, who supplied Marcus Tully with information in proceeding against him. [Digest XLVIII, 4, 8] Also, if necessity or utility recommends, torture is to be applied to those who are thought to be guilty of this crime, as well as to those by whose counsel and instigation they appear to have undertaken the alleged criminal act, so that the prescribed penalty may be brought home to all who were concerned or had knowledge therein. [Justinian, Codex, IX, 8, 4-6]
The acts are many which constitute the crime of lèse majesté, as for example if one conceives the death of the prince or magistrates, or has borne arms against his country, or, forsaking his prince, has deserted in a public war, or has incited or solicited the people to rebel against the commonwealth; or if by the act or criminal intent of any, the enemies of the people and commonwealth are aided with supplies, armor, weapons, money, or any thing else whatsoever, or if, from being friends, they are turned into enemies of the commonwealth; or if by the criminal intent or act of any, it comes to pass that pledges or money are given against the commonwealth, or the people of a foreign country are perverted from their obedience to the commonwealth; likewise he commits the crime who effects the escape of one who after confessing his guilt in court has on this account been thrown into chains; and many other acts of this nature, which it would be too long or impossible to enumerate. [Digest XLVIII, 4, 1-4]
But because the formula of fidelity or fealty ought herein above all else to be kept, there is language in the oath from which we can most conveniently learn a few of the acts which are not permitted. For a thing which is the opposite of something that is necessary is impossible, and by the same process of reasoning a thing which ought to be done is contradicted only by something that is not permitted. The formula of fealty, then, exacts the things which are inserted therein as being the necessary elements of loyalty, and expresses the latter by the words "sound," "safe," "honorable," "advantageous," "easy," "possible." If therefore, we are bound by fealty to anyone, we must not harm his soundness of body, or take from him the military resources upon which his safety depends, or presume to commit any act whereby his honor or advantage is diminished; neither is it lawful that that which is easy for him should be made difficult, or that which is possible impossible. Besides, one who holds a benefice from him whose liege man he is, owes to him aid and counsel in his undertakings; from which fact it is clearer than the sun how much is owed to the God of all, if so much is owed even to those to whom we are bound only by fealty.
As to the punishment of this crime, it is so severe that I cannot easily suppose that anything more severe could be devised even by those lords of the isles who too frequently put on the tyrant. And lest the severity of the penalty be thought to have had its origin in the cruelty of tyrants, I will set forth in part the language of the dispassionate law itself. It says: "Whoever with soldiers or private men or barbarians has entered into any wicked conspiracy, or has taken or given any guilty oath, or has conceived the death (for the laws desire that the will to commit a crime shall be punished with the same severity as the completed act) of the illustrious men who participate in our counsels or cabinet, or of any of the senators (for they too are a part of our body), or finally of any who are in our service as soldiers, let such a man be put to the sword, as guilty of a crime against our majesty and let all his goods be forfeited to our fisc. And let his sons, whose life we spare by the special grace of our imperial clemency, - for rightly they should perish by the same punishment as their fathers, to the end that fear may be inspired by the warning example of a crime which is hereditary, - let his sons be held excluded from the inheritance and succession of their mother and grandfather and of all their other relatives as well, and let them be permitted to take nothing by will from strangers. Let them forever be propertyless and paupers, and let their father's infamy attend them always. Let them never attain to any honors nor be permitted to take any oath. Finally let them be forever in such poverty and squalor that death will be a comfort to them and life a torture. And we command also that whoever shall be so rash as to intercede with us in their favor shall be infamous and without pardon. As to the daughters of such criminals, however numerous they may be, our will is that they shall receive only the Falcidian proportion of the goods of their mother, whether she dies testate or intestate, to the end that they may rather have the moderate means of a young girl than the full portion and rights of an heir. For with regard to them greater mildness ought to be shown than to the sons, since we trust that because of the weakness of their sex they will be less audacious. And as to the wives of the aforesaid, let them recover their dower, and then, if they are in the position that what they have received from their husbands by title of gift must revert to their children at the termination of their own life-estate, let them know that they must leave to our fisc all the property which was thus lawfully owing to their children; and from it let only the Falcidian proportion be assigned to the daughters, but nothing at all to the sons. We decree that the provisions concerning the aforesaid and their children shall also apply to all their accomplices, abettors, and servants, and to the children of all the latter with like severity. With reason, however, if any of these at the outset and commencement of a conspiracy is inspired by the desire of true praise to give information of the same, he shall receive from us reward and honor. But one who has actually participated in a conspiracy, and then while its secret counsels are still undisclosed reveals them, shall be considered as meriting only pardon and indulgence." [Justinian, Codex IX, 8, 5]
Source: The Statesmans Book of John of Salisbury. Translated by John Dickinson. New York: Alfred A. Knopf, 1927; pp. 258-263.
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