Album iudicum

It is certain that the two laws introduced by Augustus in approximately 17 BC, known collectively as the leges luliae iudiciorum publicorum et privatorum (Julian Laws Concerning Public and Private Proceedings) laid out the partic­ulars for the organization and functioning of the album iudicum, the list of judges.¹¹ Likely these laws also attempted to regularize the system, ironing out some of the idiosyncrasies of the late republican era.

To qualify for the album an individual had to be male, a citizen, and between 25 and 60 years of age.¹² Until the reign of Gaius, all members had to be from within Italy; Gaius apparently opened the album to those from the provinces.¹³ Individuals did not need to have any legal training, but were required to have substantial wealth. Following Augustus' reforms, men who met one of three property qualifications could be admitted to the album: the senatorial census amount of 1,000,000 sesterces; the equestrian rate of 400,000; or 200,000, the possessors of which were termed the ducenarii.¹⁴ A man could not be on the album if he had been condemned in a quaestio or a iudiciumpublicum, or had been ejected from the senate.¹⁵

Meeting the above criteria did not guarantee inclusion. A man had also to pass a character examination. Unfortunately, we are extremely ill-informed about the specifics of this process. In the republican period and the early part of Augustus' reign, the examination of those eligible for equestrian standing was performed by the censor.¹⁶ Augustus subsequently took over this task, and his successors continued the practice as the censorial duties came to be subsumed within the jurisdiction of the emperor.

Exemption from service on the album was possible. An individual could be excused if he had the ius trium liberorum — the right of three children.²¹ Magistrates apparently were not automatically exempt. A senate decree of 11 BC suggests that, for at least some relatively minor magistrates, exemption was possible for the portion of the year, in these cases three months, during which they were actively serving.²² Regarding the more important magis­trates, the only evidence states that a praetor cannot compel other praetors or consuls to serve as a judge, because their authority is equal to or greater than his.²³ Since the magistracies exempted by the senate decree are of rather minor importance, it seems a safe assumption that for those magistrates who served actively throughout the year exemption would also be granted if requested. Many officials, such as the praetors, undertook heavy judicial func­tions within their office, so to require them to stand on the album as well seems extreme and also would have greatly reduced the efficiency of their own office, creating delays whenever the magistrate was called upon to serve. Surely exemption would also of necessity have been granted to those ex-offi­cials who were serving as military commanders, legati, or governors.²⁴

The organization and size of the album was not static during the early imperial period.

At any given time, then, approximately 5,000 men were assigned to the album iudicium. And yet little is heard of these individuals within the literary sources. Fortunately, over 100 inscriptions identify men, most of equestrian status but some ducenarii as well, who were connected to the decuries. These inscriptions range widely in both geographic origin and date.³⁰

Unfortunately, the collection poses two interpretive problems. First, not a single inscription identifies a senator who served on the decuries. Second, the varied terminology found within the inscriptions is poorly understood by modern scholars, and literary texts offer little help. The main groupings of terms identify men, with slight variations of each phrase, as “iudex ex V decuriis”, “iudex adlectus in V decuriis", “iudex selectus ex V decuriis”, and “iudex ex selectis adlectus". Examination of the terminology suggests that no influences of time or geographical origin are at work. Rather, it appears certain that the var­ied terminology indicates differences between those within the decuries.³¹ Thus, there are three pressing questions: 1) were senators still serving as judges in the imperial period? 2) how do the terms associated with judges from the equestrians and ducenarii relate to each other? and 3) how does this terminol­ogy link to these men's practical participation in the courts?

Modern scholars have suggested that in the imperial period senators were not judging cases as members of the decuries.³² However, if true then this leaves no explanation for Augustus' requirement that no court session be held on the two set days of each month on which senate meetings were scheduled.³³ Clearly he saw attendance of senators at both to be important and took steps to guarantee it.

The evidence relating to equestrian involvement, while ample in compari­son to that for senatorial involvement, proves very difficult to interpret. The varied terminology mentioned above likely was specifically defined within the lost leges Iuliae since Pliny the Elder states that Augustus “organized the decuries".³⁸ Pliny goes on to describe the decuries in such a confusing manner that little can be gleaned because of our own restricted understanding. The same terminology also appears scattered through other literary texts. Horace once refers to “one from the selected judges”.³⁹ However, the manuscripts show a variation replacing “selected” with “elected”. Pliny the Elder, in another context, states that “forty-five elected men” are needed to sentence a man to exile, while Seneca the Younger, speaking generally about cases, uses the verb form connected to “elected” to refer to the judge.⁴⁰ Ovid twice refers to the “selected judge”.⁴¹ The emperor Claudius makes use of this terminol­ogy as well in his edict concerning citizenship and the Anaunians when he states that “some chosen men in the decuries at Rome are judging cases”.

Since the literary evidence is of little help, we must get what we can from the inscriptional evidence. Demougin proposes a categorization that best accommodates the existing evidence.⁴³ She groups the various terms into three main categories, in ascending hierarchical order. First are the iudices who iden­tify themselves as “ex Vdec’ or some close variation of that phrase.⁴⁴ Second are the iudices who are selecti and third, the iudices who are electi. Two additional cat­egories indicate individuals who were placed into the above three categories by the emperor: those iudices who identify themselves as “in V dec adlecti” and thus are in the first category but came to that position by the emperor's appoint­ment (“adlection”); and those iudices who were “adlecti inter selecti”, and thus fall into the second category, also through imperial appointment. Demougin's cat­egorization conflicts with other scholars' various theories.⁴⁵

The above terminology and categorization apply both for those of eques­trian status and for ducenarii. In the inscriptional evidence, men appear who were iudices ex V dec and selecti and yet were not equestrians.⁴⁶ This lack of dis­tinction is not surprising since there appears to have been some generalization when referring to the decuries. Although they consisted of senators, equestri­ans, and ducenarii, the decuries came to be seen collectively as equestrian.⁴⁷

While Demougin's categorization best fits the inscriptional evidence, it is not without problems. The separation of selecti and electi into two different groups is troubling, as the distinction seems slight. Also, if Demougin's the­ory is correct, then of the 140 men linked to the five decuries, and of the 25 individuals within that number who are identified as selecti, only two actually judged cases; further, in these two inscriptions the term electus does not even appear — rather, the phrase “iudicavit” (he judged) is used.⁴⁸ Perhaps it is bet­ter to put selecti and electi within the same category — of men who judged cases.

How then to explain the use of “electi” by Pliny the Elder and Seneca the Younger? These remarks view the judge from another angle. They are not talking of those who would be judging the case but of those who are judging the case. It is a slight distinction, but then so is the distinction in linguistic terms between selecti and electi, which both tend to mean “chosen”. Then what do the inscriptions that include “iudicavit” (he judged) indicate? Perhaps these two men were pulled from the album to be single judges. This would have been a further honor and one worth mentioning separately.

The inscriptional evidence then provides the names of men who served on the decuries from the time of Augustus until the mid-third century.⁴⁹ The entire chronological spread is found among the examples from Italy, not sur­prising since Italians were always eligible. Since no emperors are mentioned among the inscriptions from Gaul, the dating of these is difficult. Burnand suggests, based on other datable features, a span from mid-first century to the second half of the second century.⁵⁰ Among the African inscriptions, the ear­liest dates to the reign of Vespasian and they run through to the latest example, which identifies the emperor Pertinax.⁵¹ The practice of adlection into the categories of iudex ex V dec or iudex inter selectos is not seen until the reign of Domitian and then continues to appear until the mid-third century.⁵² The latest datable inscription mentions the emperor Commodus and with that the evidence for the decuries virtually ceases.⁵³ Based on this and other evidence scholars conclude that by this time the quaestiones perpetuae had become obsolete, though nothing specific can be said about when that occurred, nor about whether the courts lapsed into disuse or were removed by legislation.

While the quaestionesperpetuae were located in Rome, judges who served on the decuries apparently came from across the empire. Both Seneca and Pliny remark how judges were summoned from distant places — Pliny specifically mentions Gades and the Pillars of Hercules in southern Spain — to hear cases of minor significance.⁵⁴ Since such cases were heard by ducenarii it appears that even judges of the lowest monetary standing came from afar to judge. Men who originated in the western provinces of the empire, namely, Spain, Mauretania, Numidia, Africa, Gaul, Sardinia, and Sicily, indicate their involvement.⁵⁵ To the east of Italy, Pannonia, Asia, Bithynia and Pontus, and Lycia and Pamphylia produced members of the decuries.⁵⁶ The more eastern provinces of the empire appear not to have supplied any men. The increased degree of Romanization in the more western provinces, especially with regards to the Latin language, no doubt is a factor in the geographical distri­bution of the judges. While they came from across the empire, calculations show that 45 percent of the known members of the decuries still came from Italy.⁵⁷ Within Italy, men came from every region, with the greatest number deriving from the three regions of Etruria, Liguria, and Transpadana.⁵⁸ Men even appear from such small communities as that of the Anaunians, which was linked with the larger town of Tridentum located in the far north of Italy.⁵⁹ However, care must be taken not to read too much into the inscrip- tional evidence. Archaeological excavation is scant at best, and the survival of inscriptions reliant on so many factors, that what we have may provide a somewhat skewed picture.

Comparison of the inscriptions by terminology and geography produces interesting results. Of the 35 iudices identified in Africa, 34 were adlecti, while in Italy, of the 47 only 3 were adlecti. If one looks at selecti, of the same 35 in Africa only 2 were selecti; in Italy, the number was 15. From the surviving evi­dence, Africa appears to have produced the most adlecti, while Italy produced the most selecti. The high number of adlected Africans suggests an aggressive effort on the part of the emperor to incorporate Africans into the Roman establishment through inclusion on the decuries.⁶⁰ The high number of selecti found in Italy suggests that even though provincials could be iudices ex V dec, Italians dominated the selecti category.

Can this evidence regarding terminology, chronology, and geography be amalgamated to form a practical working system for the decuries? Clearly the terminology is consistent and examples of each category are found across the empire. The most troublesome and of course most intriguing question is then, were all these people linked to the decuries in Rome, some from locations weeks away from the city, actually physically going to Rome to hear cases?

Demougin proposes that all who are connected to the decuries in the inscriptions, no matter what category (except those in the decury that was on holiday that year) were expected to travel to Rome at the beginning of the year.⁶¹ Upon arrival they went through the censorial examination by the emperor, or the praetor if they were ducenarii, at which point some were rejected and others excused. As a result, it appears that some men could travel all the way to Rome and then discover that they would not be put on the list.

According to Demougin's categorization, those who passed the censorial exam and were put on the list became selecti. What is the practical result of this? Did all selecti then stay in Rome for that year? They must have. If the number chosen to be selecti was near to the projected number needed to manage the caseload, and we can assume that every effort was made to require the smallest number to remain, then it is very likely that most selecti were almost always serving as judges. If a case finished, and a judge became available, the window before being chosen for another case would likely have been short, making travel impossible. For those from outside Italy, and even from outside the immediate environs of Rome, being one of the selecti was a major commitment.

Demougin acknowledges the extreme results her proposal necessitates. In subsequent discussion of the decuries she states that it was permissible for iudices not to show up in Rome for the beginning of the year examination and thus not be considered for inclusion among the selecti, a type of self-selection process. The higher number of selecti found in Italy may support this argu­ment; those who were not so far from home were willing to travel to Rome and be considered, while those from across the Mediterranean refused to travel the great distance. However, Pliny, Seneca, and others tell us that men from the provinces were hearing cases. Was there an element of volunteerism in this process, whereby if a provincial wanted to make the journey to Rome and attempt to be put on the list of selecti, he was welcome? This seems unre­alistic. Surely, Augustus would not have endorsed a system that did not guarantee an adequate number of potential judges presenting themselves for the selection process.

This brings to the forefront a further problem with Demougin's categoriza­tion. She identifies those who were not chosen as selecti as being within the group of iudices ex V dec, but how did one become a member of this group in the first place? The decuries were made up of senators, equestrians, and ducenarii. For the imperial period there were at least 4,000 men in the decuries. Of this number, at most 600 were senators. The fourth decury, and perhaps the fifth as well, consisted of ducenarii, which leaves space for at least 2,400 equestrians. How many equestrians were there at this time? Answering such demographic questions is extremely difficult. It appears that in the early Julio-Claudian period the number of equestrians was going down, since in 38 Gaius, in an effort to boost the number of equestrians, enrolled men from the provinces who held the property qualification, and at the same time opened the decuries to provincials as well. All equestrians surely did not automatically become iudices ex V dec, as there must have been more than 2,400 equestrians within the empire. So how did one move into this group? Adlection resulted in the inclu­sion of several within the iudices ex V dec. Whether these men, iudices ex V dec adlecti, felt more or less inclined than the other iudices ex V dec to make the jour­ney to Rome at the beginning of the year cannot be ascertained. There is no evidence that adlection to the decuries was merely honorific. As for the rest of the iudices ex V dec, nothing can be concluded with certainty.

From the literary texts we can identify two men, Ovid and Aulus Gellius, separated by over a hundred years, who were on the album iudicum. It is most unfortunate that neither mentions the category to which he belonged. Ovid's involvement appears to have been as a unus iudex, a task for which he was cho­sen repeatedly. In Book Two of the Tristia he states:

Res quoque privatas statui sine crimine iudex,

Deque mea fassa est pars quoque victa fide.

Also as judge I decided private cases without reproach,

And even the losing side conceded my good faith.⁶²

While this passage does not specifically mention the album, coupled with other of his statements the evidence seems strong. Even though Ovid shunned a public career for poetry he did undertake some public offices and functions, all of which were very legal in nature and suitable for someone of equestrian status. Ovid tells us that he held the position of tresvir and decemvir stlitibus iudicandis.⁶³ The legal nature of decemvir may suggest that Ovid served as a tresvir capitales, which was the office within the board of Tresviri most legal in nature. In addition to these posts Ovid acted as one of the centumviri.⁶⁴ As far as is known, Ovid is the only judge of that court who can be identified. Since Ovid includes his participation as a centumvir and iudex as evidence for his good standing as an equestrian before his exile, it is very likely that his service as a iudex hearing res privata (civil cases) stemmed from his inclusion on the album iudicum.

We know of another who served the same role. Aulus Gellius states he had been “chosen by the praetors to judge the cases which are called â€?private’”.⁶⁵ He then provides a detailed description of a dispute he heard as a single judge. Gellius likely also was of equestrian status.⁶⁶ Thus, we find here two judges who served as single judges (Ovid clearly heard more than one case, but for Aulus we hear only of his first case) drawn from the album iudicum.

Very little is known about the methods by which selecti were chosen from the album iudicum to be either single or panel judges. As each quaestio was established by its own law, it appears that a variety of methods also existed for the selection of the panel.⁶⁷ For the imperial period, the loss of the leges luliae seems the main cause of our ignorance. Surviving legal texts refer to the proce­dure for the selection of recuperatores as laid out in the lex lulia de privatis iudiciis, which suggests that the same law may have laid out the selection process for single judges while its sister law, which dealt with public proce­dure, may have done the same for judges for the quaestiones.⁶⁸ The most likely scenario envisions procedures that included elements of both selection by lot (sortitio) and specific rejection by the litigants (reiectio). Roman doctrine wished to provide all litigants with the opportunity to play some direct role in choos­ing their judges.⁶⁹ When choosing a unus iudex from the album, the two litigants began by taking turns rejecting decuries until only one was left, then they took turns rejecting individuals within the remaining decury until one judge was left, allowing the defendant (if it were such a case) final rejection.⁷⁰ The formulation of a panel of judges for a quaestio involved sortitio before the reiectio.⁷¹ An initial larger group of judges was drawn from the selecti by sortitio, a certain number coming from each decury, and then the litigants, by means of reiectio, reduced the number to the final panel.⁷² The typical number of judges for a public trial is unknown. Pliny the Elder mentions that a judgment of exile can be inflicted by a panel of “XLVelectis viris”, “45 selected men”.⁷³ This is the only evidence of imperial date for panel size. Late republican evidence suggests a standard size of 75, though smaller panels are also mentioned.⁷⁴ It is likely that the leges Iuliae dealt with panel size and possibly set a standard for all the quaesliones.7 Also, since the ancient sources provide an overall sense that the press of judicial activity was ever-growing in Rome, it would seem to have been practical on Augustus' part to set the panel size at a number smaller than what had commonly been found previously. Fewer judges per trial increased the number of trials that could run consecutively. Therefore, it is possible that Pliny's 45 men constituted the standard size of all panels hearing public cases and that this size dated back to Augustus' laws.

Additional details regarding the selection of a single judge from the album are provided by Aulus Gellius:

Quo primum tempore a praetoribus lectus in iudices sum, ut iudicia quae appellantur �privata” susciperem...

At that time when I was first chosen by the praetors to be one of the judges so that I might judge those cases which are called “private”....⁷⁶

If Demougin's categorization is followed, this passage must be interpreted to mean that the selecti (those who passed the praetor's character examination) were sub-divided further into at least two groups, those to hear public and those to hear private cases (which would fit nicely with the titles of Augustus' missing leges Iuliae) and that the praetors had some role in determining these lists. Augustus determined that the ducenarii were to hear only cases of lesser importance, which no doubt refers to private cases, so we can assume that all the ducenarii who had become selecti were placed on this sub-list. However, Aulus Gellius, who was likely an equestrian, appears on this list. While the ducenarii were excluded from hearing the more important public cases, noth­ing forbade an equestrian from hearing cases that were private in nature, some of which would have been of large financial consequence.⁷⁷ Since the praetors both carried out the examination of the ducenarii and presided over most of the courts in which the selecti would serve, it is possible that they also were involved in choosing those equestrians, already approved by the emperor's examination, who would be assigned to hear private cases as single judges instead of hearing public cases with their fellow equestrians and senators. It is also of note that Aulus Gellius describes this occasion as the “first” time he was chosen, suggesting that his inclusion on this sub-list was not constant but that he was chosen subsequently at least one more time. Ovid's judgment of private cases while an equestrian suggests that he too was appointed to this sub-list, if this organizational method was in place so soon after Augustus' reforms.⁷⁸