A Brief History of…Subpoenas

Subpoenas are commonplace in litigation in most courts around the world, particularly in common law and continental law systems.

They perform a vital function and the value of subpoenas is best realised by those who do not have access to them. Try summoning a powerful person before the courts in a country without the rule of law and you will quickly see that, despite our system’s flaws, money or political clout is not as powerful in Australia as it is in most parts of the world, thanks largely to the subpoena. The writ of subpoena is used generally as “Subpoena Duces Tecum” for the production of documents or a “Subpoena ad Testificandum” for the production of the individual to provide evidence or testify.

But where did it all start? Well, lend me your ears (eyes), like all the best parts of the law (and frankly everything) subpoenas have their origins in ancient Rome and Hellenic or Latin culture generally. The Romans placed great weight on the rule of law. Since the founding of the city, Rome was heavily divided between the rich and poor, the poor workers became vital to the success of the city and agitated for law to apply equally to all citizens under threat of taking their in-demand labour to another city which would essentially facilitate the failure of Rome in it’s upstart days. SPQR (The Senate and the People of Rome) recognised the need for placating the masses and edited the laws of Rome to apply equally to all citizens rich and poor, emphasis on citizens.* A citizen with a grievance could approach the local Magistrate (another survived Roman term) who would then issue a subpoena for the required person to appear before the Magistrate or Senate for the case to be heard.

In an early incarnation of mandatory minimum sentencing there were only two offences that automatically attracted the death penalty, treason and failing to answer a subpoena. Subpoenas as a tool of justice were considered so important that failing to answer it was a most egregious violation of civic duty. A person accused of murder may or may not be guilty, but if a person refused to answer a subpoena then they were seen as denying Jupiter’s justice itself. Hence the etymology of subpoena, “sub” meaning under and “poena” meaning penalty…a subpoena was an order of the court, under penalty…of death.

Like most principles of Roman law, the subpoena, along with habeas corpus, affidavits and pro bono (I’m sure there will be entries about those at some point) survived the collapse of the empire and were incorporated into most legal systems in Europe, largely through the Church, being the successor to the Roman Empire. The beautiful simplicity and practicality as a tool of the justice system ensured the subpoena’s survivability.

A great tale that demonstrates the ongoing importance of the subpoena involves William the Cow Thief from 1221 England. William was accused (by his wife…poor sod), of having stolen, killed and eaten a cow belonging to another man. During this period of England’s history, livestock and crops were the literal lifeblood of 95% of English society. William claimed that his Lord had gifted the cow in return for services. The Court issued a subpoena for the Lord to appear. He refused and was subsequently gaoled whilst William was set free because the Courts could not remove a man’s liberty who possibly had a defence that was unable to be tested before his peers. Interestingly, the Lord would have been unable to be tried for the theft of the cow, as it was technically his, but failing to answer a subpoena was a crime applicable to all men…who weren’t kings. It is hard to say whether the same fervour would have been used in later years a little further in time from the Magna Carta, but I digress.

Even if Registrar’s do not hold the power to have someone put to death for failing to answer them, subpoenas (only seppos say subpoenae) continue to hold a vital importance in today’s system by facilitating the production of evidence needed to prove a particular case and essentially facilitate justice.

For a much more comprehensive history of Rome, please see the phenomenal podcast of Mike Duncan http://thehistoryofrome.typepad.com/
and for a much much better history of subpoenas, read a book, particularly “Subpoena Law and Practice in Australia” by Gerard Carter. http://catalogue.nla.gov.au/Record/2847417.

*unfortunately as with most legal systems, the lofty ideals were often corrupted by money, but nonetheless a nice idea.

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