Courts of other magistrates

While the courts of the praetors dominated the legal system in the early imperial period, and thus appear most often in the ancient sources, several other magistrates had jurisdictions.

Over the course of the first and second century, the jurisdiction of the prae­fectus urbi, an ancient office re-introduced by Augustus as a regular magistracy, expanded until it became the main public court for Rome and the area within a 100-mile radius of the city.¹⁷⁶ During the same period the con­suls' jurisdiction also expanded to deal with certain matters.¹⁷⁷ These two magistrates, like the emperor, investigated disputes extra ordinem, and hence they could hear cases in their entirety, thereby disposing of the multiphase procedures used by the other courts.

Praefectus urbi

Juvenal provides a vivid picture of the court of thepraefectus urb'r.

Confer et artifices mercatoremque veneni et deducendum corio bovis in mare cum quo clauditur adversis innoxia simia fatis. haec quota pars scelerum, quae custos Gallicus urbis usque a Lucifero donec lux occidat audit? humani generis mores tibi nosse volenti sufficit una domus. paucos consume dies et dicere te miserum, postquam illinc veneris, aude.

Consider the craftsmen and seller of poison and the man drawn down to the sea in oxhide with whom is shut in an innocent ape, the fates having turned against them. How great a portion are these of the crimes which the guardian of the city, Gallicus, listens to continuously from sunup until sundown? One court suffices for you if you wish to

know the morals of the human race. Spend a few days

and dare to say that you are wretched, after the attractiveness found in that place.¹⁷⁸

However, the passage provides only one piece of information useful to our immediate purpose: it seems clear that the court occupied a fixed location, since Juvenal suggests a stable setting for someone wishing to pass multiple days in observation.

Consul

Practicality suggests that each consul had his own court.¹⁸² No mention is made of the locations of these courts until the Antonine period, when Aulus Gellius describes a discussion in which he took part:

In fastigiis fori Traiani simulacra sunt sita circumundique inaurata equorum atque signorum militarium, subscriptumque est: “Ex manubiis.” Quaerebat

Favorinus cum in area fori ambularet et amicum suum consulem opperiretur causas pro tribunali cognoscentem nosque tunc eum sectaremur — quaerebat, inquam, quid nobis videretur significare proprie “manubiarum” illa inscriptio.

In the pediments and all around in the Forum of Trajan there are gilded representations of horses and military standards, and written underneath: “From the booty.” Favorinus asked — when he was walking in the open space of the forum and was waiting for his friend the consul who was hearing cases at his tribunal and we then were accompanying him — he asked, I say, what that inscribed word “from the booty” really seemed to mean to us.¹⁸³

The location of the consul's court is clearly identified here as the Forum of Trajan.

Praefectus urbi, praefectus praetorio, and consul in the

Forum of Trajan

In 1984, Anderson concluded that the courts of thepraefectus urbi and the con­suls could firmly be placed within the Forum of Trajan. He based his argument on fragmentary inscriptions found within the forum that com­memorated holders of these offices,¹⁸⁴ the earliest inscriptions from 144 during the reign of Antoninus Pius and the latest from the mid-fifth cen­tury.¹⁸⁵ While the location of discovery and the content of these inscriptions cannot be doubted, and potentially helpful information is always welcome, the use of these inscriptions to prove these courts were in this forum is ques­tionable. The function of this forum, paralleling the Forum of Augustus, as a gallery for commemorative inscriptions and statues of distinguished Romans surely explains the high concentration of memorials to men who held these three important administrative posts.¹⁸⁶ Those with the greatest political weight, who served the emperor in military endeavours and were rewarded with such a public display, were the same individuals who reached the pinna­cles of the cursus honorum. A large concentration of commemorative inscriptions for men who served as consul and praefectus urbi is a natural result of such a system, and cannot serve as a secure indication that this forum housed these magistrates' courts.

We need not despair of finding any evidence.

Much later in date, though perhaps still indicative of an earlier reality, the Theodosian Code records a number of laws as having been “passed and pub­lished” in the Forum of Trajan.¹⁸⁸ The laws' subject matter links with these magistrates' jurisdictions at the time. Of course, it would be unwise to base conclusions about the earlier courts on evidence from some two hundred years later. With our existing information we are forced to be content with rather disappointing conclusions: the consul on at least one occasion held court in this forum, and thepraefectus urbi perhaps held his court here as well, since the space was conducive; but we have no certain evidence.

The design of the Forum of Trajan, with its monumental size and its apparent imitation of the Forum of Augustus, would have lent itself — even if other evidence is scarce — to providing excellent spaces for courts to use. The forum itself includes the Basilica Ulpia and a large open area lined with porticos. Together, the basilica and open central area make a total space of 9,916 m².¹⁸⁹ This was a very large complex indeed when one considers that a modern football field measures 8,152.79 m².¹⁹⁰

The Forum of Trajan was depicted on the Forma Urbis Romae, and frag­ments survive that show niches of some sort along the curved walls of the apses located on each end of the Basilica Ulpia as well as a large central niche with two pillars at its edges.¹⁹¹ Packer believes these large niches each housed a tribunal with a raised floor that was accessed by an internal stair, ignored by the FUR artists.¹⁹² The apses of the Forum of Augustus do not have the same sort of central niche marked off by two pillars, although the wall behind the central niche is deeper.

Again the problem arises of whether the apses, supposed locations for courts, were covered. Packer, on the basis of architectural fragments, believes that there was a series of second-floor windows in the curved wall of the apses, which were roofed. Furthermore, partial excavation of the floor of the west apse from 1928 to 1934 showed no drain.¹⁹³ The basilica itself likely did not have an accessible second floor. Based on numismatic evidence, Packer sug­gests that an open clerestory of columns rose above the first-floor colonnade that separated the nave from the aisles of the Basilica.¹⁹⁴

The shape of the individual elements of the Forum of Trajan perhaps sheds light on the number of courts that could have met simultaneously, as well as on the arrangement of individual courts in this space. Certainly this large complex could have accommodated thousands of people in a number of courts. Based on the conclusions drawn from the Forum of Augustus, the apses could effectively accommodate the court of a magistrate or judge. Since the apses are largely unexcavated, reconstructions by scholars vary widely. Some very early reconstructions insert three or four steps around the whole curved wall of the apse to accommodate the panel of judges.¹⁹⁵ Nothing disproves such a possibility. If the central niche did accommodate the presiding magistrate’s chair, we can assume that the advocates would face either the magistrate, with their back to the basilica, or stand perpen­dicular to the magistrate, facing the opposing counsel. In either case it would make most sense for the panel of judges, if the court used such a group, to be arranged alongside the magistrate’s niche, facing towards the basilica. Thus, when the advocate spoke his voice would have been carried by the curved wall to the audience, who would have occupied the area of the apse closest to the basilica behind the advocate.

The large central area of the basilica itself could also accommodate a num­ber of courts. As we will see below, the central area of the Basilica Iulia (approximately 75 x 16 m) is known to have held four courts meeting concur­rently.¹⁹⁶ The central area of the Basilica Ulpia could accommodate at least six, perhaps seven, similarly sized courts.¹⁹⁷

Anderson assigns a very different function to the apses of the basilica than Packer. He interprets the niches marked on the apsidal walls on the Forma Urbis Romae to be niches for the storage of books and records, and the central niche as capable of holding cabinets for storage. Thus, he suggests the apses served as storage facilities while the courts could use the nave of the basilica and the open area of the forum.¹⁹⁸ While this suggests a practical use of space, it is difficult to believe that the visible artistic apses of the Basilica Ulpia were used as oversized storage closets.

The porticoes of the Forum of Trajan seem unlikely locations for courts, as has already been discussed concerning the Forum of Augustus. Perhaps, as Anderson suggests, various court-related business that did not take place before the magistrate, and did not involve a large number of people, could have been done in this area, using portable furniture and equipment.¹⁹⁹

In addition to these possible ten courts (two in the basilica apses, two in the apses off the open forum area, and six in the central area of the basilica), there is also the large central area of the forum itself. Comparing the proposed square footage of 9,916 m² with the calculated space used by one court in the Basilica Iulia, mathematically the forum area could hold 33.05 such courts. Practically, the number must have been far fewer. But ample space was there. Let us hope that the ongoing excavations of the central area of the forum supply some archi­tectural features, like the surviving tribunal of the praetor peregrinus in the Forum Romanum, which will clearly locate courts within the area.

The locations of other courts

The above discussion exhausts the evidence for the location of specific legal courts within the city of Rome during the period under consideration. In light of the ground covered, the results are somewhat disappointing in that we cannot place more courts with any degree of certainty. We know of many other magistrates whose jurisdictions included a judicial function. The aediles continued overseeing the markets and streets of Rome into the imperial period and they retained a judicial role, although it appears that many of the disputes at that point went before the praefectus urbi. We hear that Nero placed a limit on the fines that aediles could impose in their court.²⁰⁰ The tri­bunes, even though their jurisdiction was greatly restricted when the emperor incorporated much of their power into his own position, also contin­ued to serve a judicial role.²⁰¹ Three other important offices also had the ability to enforce justice: thepraefectus annonae and both groups ofpraefecti aer- arii²² Other more minor officials also had some judicial duties. The procurator fisci heard cases involving monetary disputes between private indi­viduals and the state.²⁰³ Thepraefectus vigilum apparently sat in judgment over crimes involving arson, theft, and burglary, as well as others.²⁰⁴ The tresviri capitales perhaps dealt with lesser crimes.²⁰⁵ Judicial powers were also granted to the curatores who were responsible for the aqueducts, public buildings, sew­ers, and the banks of the Tiber.²⁰⁶

Conversely, on occasion we learn of cases held in specific locations, but we cannot identify the court involved. Legal activities within the Forum ofJulius Caesar fall within this category. This forum undoubtedly accommodated legal activities; Augustus built his new forum because of “hominum et iudiciorum multitudo, quae videbatur non sufficientibus duobus etiam tertio indigere”, “the large number of people and of legal cases, which seemed to call for a third forum, since two were no longer sufficient”.²⁰⁷ Clearly this passage refers to the over­flow of legal activities from the Forum Romanum as well as from the Forum of Julius Caesar. By this time even Caesar's forum was no longer adequate. Thus, during Augustus' reign three large areas, the Forum Romanum, the Forum of Julius Caesar, and the Forum of Augustus, would have been constantly rever­berating with the noise of legal hearings. In one of Martial's epigrams, a character boasts of his skill in Rome's legal theater, saying: “causas... agam Cicerone disertior ipso atque erit in triplici par mihi nemo foro”, “I will argue cases more eloquently than Cicero himself, and no one will be my equal in the three forums.”²⁰⁸

While Appian tells us that Julius Caesar intended his forum to be a place where the people could “ζητοΰσιν η μανύάνουσι τά δίκαια”, “seek justice or learn the laws” we must turn to Ovid's writings to find evidence that Caesar's goals were achieved.²⁰⁹ The first step in finding love, writes Ovid, is to seek out an appropriate object of one's affection, and he includes the courts in his list of suitable places to find women:

Et fora conveniunt (quis credere possit?) amori:

Flammaque in arguto saepe reperta foro:

Subdita qua Veneris facto de marmore templo

Appias expressis aera pulsat aquis, Illo saepe loco capitur consultus Amori, Quique aliis cavit, non cavet ipse sibi: Illo saepe loco desunt sua verba diserto, Resque novae veniunt, causaque agenda sua est. Hunc Venus e templis, quae sunt confinia, ridet: Qui modo patronus, nunc cupit esse cliens.

Even the fora (who can believe it?) are suitable for love: often the flame is found in the noisy forum: Lying near [the place] where the marble temple of Venus was built, the Appian nymph strikes the air with forced up water, often in that very place the lawyer is seized by love, and he who was on guard for others is not on guard for himself: often in that expressive place his words fail him, new cases come, and he must argue his own. Venus, from her temple which is adjacent, laughs at him: He who was just recently an advocate, now wishes to be a client.²¹⁰

Anderson, arguing that there are no remains for the fountains in the forum, locates these legal activities in the Atrium Libertatis — a feature that ancient sources place just to the north-west of the forum fronting on the Clivus Argentarius, thereby explaining the reference to Venus' nearby temple.²¹¹ However, the extensive reconstruction of the forum by Domitian and Trajan makes it difficult to assume that the fountain was never in the forum. Ulrich, in his more recent book, believes the fountain was in fact in the forum, thereby concluding that these cases were taking place in the forum itself.²¹²

The specific courts that occupied the Forum of Julius Caesar defy identifi­cation. In addition to the above passage, Ovid comments on legal activities there on two other occasions. He tells us that robbed women often were heard to cry in this forum: “redde meum!", “give me back my own!”²¹³ On another occasion he recounts a scene he saw in which a man was summoning his lover on bail.²¹⁴ The types of cases Ovid mentions apparently focus on relations between the sexes. Divorce is one possible court. Another is the quaestio de adulteriis; these three passages from Ovid could all realistically be fitted within the scope of this court, and Ovid was writing shortly after this quaestio was established by Augustus.

Yet, the overarching theme of Ovid's work was clearly male-female rela­tionships. It may well be that he chose to comment only on such relevant cases as had taken place in the Forum of Julius Caesar — while similar cases may also have been held elsewhere — precisely because of the literary effect of having the temple of the goddess of love as the audience. Would Roman legal sensibilities have seen a need to link the locale of a specific court with the temple of the deity who oversaw such issues? We have little evidence of such a connection, although the possible ideological ties between the Temple of Mars Ultor and the courts that resided in the Forum of Augustus cannot be dismissed out of hand.

Where did the courts of the other magistrates discussed above meet? Certain features were necessary, and they recur in the locations of courts we have identified. A relatively large open space was necessary. Some sort of raised area, either an in situ architectural feature or a temporary assembled structure, was also needed, as was perhaps some protection from sun and rain such as a portico may supply, though with limited effectiveness. The Forum Romanum and the fora of Julius Caesar, Nerva, and Trajan could easily have accommodated more courts than those we have been able to assign in the above discussion.²¹⁵ With the construction of the Forum of Augustus and the moving of the quaestiones perpetuae to this location, the congestion in the Forum Romanum was somewhat alleviated, though for how long this solution remained adequate is uncertain.²¹⁶

We may be able to identify some further possible locations of other courts within the Forum Romanum and the Forum of Julius Caesar. Ulrich shows how temple podiums often served as platforms from which individuals addressed the public in the Forum Romanum.²¹⁷ He suggests that the platforms of temples could serve as tribunals for magistrates presiding over courts as well, recalling as an example the occasion when Sulla apparently sat in judgment on the podium of the Temple of Castor.²¹⁸ Thus, Ulrich suggests that in the Forum Romanum the Temple of Castor and the Temple of Divus Iulius, and in the Forum of Julius Caesar the Temple of Venus Genetrix, all functioned as loca­tions for courts.²¹⁹ But problems arise. Ulrich does not include a detailed description of how a court would be laid out at such a location. He reports that these platforms all have a height of 3.5m (11.5 ft).²²⁰ Yet we have already noted how noisy and cramped the fora were; it is difficult to picture how a court could incorporate such a high platform while still facilitating communi­cation between all the parties. If we put only the presiding magistrate or judge on the platform, how could he have heard the advocates’ speeches? If we put the speaking advocate on the platform with him, then we really must include the opposing counsel, and possibly the litigants as well, since they would cer­tainly have needed to hear the advocates. If we move all these individuals to the platform, its size becomes an issue, and we also have then all but removed the courts from the fora to the temples within the fora. Ulrich’s attempt to find functions for the podiums of various temples is certainly of value. Unfortunately, it is difficult to integrate his conjectures about the physical space with the practical considerations of a functioning legal court.

We have already seen that courts did occupy spaces beyond the fora of Rome. While we have no direct evidence, by utilizing the known locations as templates, we can suggest some other structures within Rome which could have met the needs of the courts. Rome’s porticoes would have been suitable. They offered some separation from the general commotion of the city's activ­ities and provided alternate locations, the colonnades themselves, if the weather was particularly bad and made it impossible for the courts to use the open central areas. We have already heard of Trajan holding court in the Portico of Livia.²²¹ This structure, measuring approximately 115 x 75 m with a double colonnade on all four sides, an apse on the south side, and an open central area, could easily have accommodated various courts simultane- ously.²²² The structure was completed during Augustus' reign, and may have been thus used from as early as that time. Ovid mentions this portico, as well as those of Octavia and of Pompey, as good locations to meet women because of the number of people concentrated within.²²³ Possibly these numbers were there to witness the legal proceedings against errant Romans.

The Temple of Peace and the Temple of Divine Claudius were also suitable complexes. The Temple of Peace was enormous (with length and width both approximately 145 m), offered porticoes for weather protection, and was also very well situated close to the other fora.²²⁴ Let us hope current excavations of the temple area will bring new information to light. The Temple of Divine Claudius, located on the north-west corner of the Caelian hill east of the Palatine, was rather more isolated, but again offered suitable porticoes and space.

When considering the proximity of a given building to the fora, we must also keep the Basilica Aemilia in mind as a possible location. It is puzzling that not a single legal hearing can be assigned to this space. Very similar in structure to the Basilica Iulia, which is known to have housed the centumvi­ral court, it was certainly suitable. Quintilian perhaps speaks of a case that was transferred here during Augustus' day: Marcus Porcius Latro, a professor of rhetoric used to speaking solely in the classroom, was asked to undertake a forensic case. Realizing that he was going to have to speak in the Forum Romanum he requested, and received, permission to have the case moved to a basilica.²²⁵ The Basilica Aemilia, located so close to the Forum Romanum, is an obvious possibility for this case.²²⁶

Why do the courts of clearly important city officials not appear in the his­torical record? Negative evidence, though less exciting, may help in solving this puzzle. First of all, many Roman courts were flexible about where they met. The standing jury courts seem to have been quite permanently attached to the Forum of Augustus, and perhaps equally so were the courts of the prae­tor urbanus and the praetor peregrinus. However, the emperor's court is found in the fora, the Palatine, the Pantheon, and various porticoes. The single judge could meet in a forum, a private home, or any other public space. It is a rea­sonable assumption that other magistrates held their courts in multiple places as well. This variety of location was likely a response to other events taking place in the heart of the empire. Such occasions as public funerals, games, and the like would no doubt sometimes have forced a court to find another location. The use of one location by multiple courts, or even for other public events, must also play a role. Thus we find Claudius possibly using the tribunal of the praetor urbanus or the praetor peregrinus when he held court in the Forum of Augustus near to the Temple of Mars Ultor. If a specific magis­trate was not holding court one day, no prohibition excluded another magistrate from utilizing the vacant tribunal. Since few courts were specifi­cally restricted to a certain location, shared use would not have incurred feelings of trespass and encroachment. For these reasons, a Roman writer might have found it of little interest to include in his history a court's loca­tion. The locations were common and well known, and the courts in session used them interchangeably, facts that strike home how integrated Roman legal life was within the public daily life of this great city.