Courts of the praetors

One of the consequences of Augustus' efforts to bring order and system to the rather unruly government of the Roman world was an inevitable and inex­orable increase in bureaucracy.

The praetors had a primary role at the very centre of the Roman legal sys­tem, as they were charged with overseeing the administration of private and public law within the city of Rome. The status of the praetors was hierarchi­cal. At the top stood the praetor urbanus and the praetor peregrinus, each with his own court.⁴ Below them, the rank and file officials either presided over the various quaestiones perpetuae or took on some of the special praetorial tasks that developed as imperial administration became more complex. These tasks included such diverse duties as the direction of the treasury, or the supervision of two new courts, one of which heard disputes concerning fideicommissa, the other disputes between private citizens and the fiscus? The drama of Roman legal life, both private and public, was to a large extent played out in the courts of these officials.⁶

Attempts to identify the exact location in Rome of these magistrates' courts meet with varied success. Some we can place with cautious confidence, while for others we can make only educated suggestions. Let us first look at the sources, beginning with the court for which we have the most evidence: the court of the praetor urbanus.

Praetor urbanus in the Forum Romanum

As the venue of the most prominent praetor, the court of the urban praetor unsurprisingly appears in the sources most often of all the courts linked to spe­cific magistrates. The centrality of this court within Rome's legal system guaranteed it an equally prominent location within the city. Relying chiefly on literary evidence, scholars suggest that for approximately the first three decades of Augustus' reign, it was likely found at the east end of the Forum Romanum? The location is wrapped within a topographical snarl of controversial locales for such structures as the Puteal Libonis, Fornix Fabianus, lanus medius, and Porticus lulia, all of which are tied to the urban praetor's court by a few passages of Horace and Persius and scholiasts' comments on these texts.⁸ The Puteal Libonis seems most strongly connected to the court. The best composite description places the court “ante atria" near the Fornix Fabianus, inside the Porticus lulia? Fitting these references into the context of the known Forum structures, topog­raphers generally agree to place the court at the east end of the Forum.

How far to the east is disputed. Coarelli defines the location as “entro un ristretto spazio compreso tra il Tempio di Vesta, la Regia e l'angolo sud-est della Basilica Emilia”, “within a confined space contained between the Temple of Vesta, the Regia, and the south-east corner of the Basilica Emilia”.¹⁰ David, when he argues for an extra move of the tribunal, seems aware of the problem inherent in Coarelli's placement, in that it situates the court in the exact location of the Temple of Divus lulius. David believes that after the tri­bunal had been in the area defined by Coarelli, it moved northwards to the Porticus lulia, which he equates with the portico of Gaius and Lucius attached to the south side of the Basilica Aemilia.¹¹ In this way he accounts for the dis­placement of the tribunal by the construction of the Temple of Divus Julius dedicated in 29 BC.¹² Perhaps these two positions can be combined by locat­ing the tribunal always at the north-east corner of the Forum, with the construction of the temple causing the location of the north-east corner to shift somewhat to the west.

By placing this court in the eastern Forum Romanum, we find a new physi­cal immediacy in Horace's description of his unfortunate meeting with a hanger-on, dated to sometime in the 30s BC:

ventum erat ad Vestae, quarta iam parte diei praeterita, et casu tunc respondere vadato debebat; quod ni fecisset, perdere litem.

�si me amas’ inquit �paulum hic ades.’ �inteream si

aut valeo stare aut novi civilia iura;

et propero quo scis.’ �dubius sum quid faciam’ inquit, �tene relinquam an rem.’ �me, sodes.’ �non faciam’ ille, et praecedere coepit. Ego, ut contendere durum est cum victore, sequo...

Casu venit obvius illi

adversarius et �quo tu turpissime?’ magna inclamat voce, et �licet antestar?’ ego vero oppono auriculam. rapit in ius: clamor utrimque: undique concursus. sic me servavit Apollo.

We had come to Vesta's temple, a quarter of the day now having passed, and by chance at that hour he was supposed to appear in court having given a bond, and if he did not appear he would lose his case. “Pray,” he says, “do help me here a little.” “Confound me if I have the strength either to stand, or know the civil laws — and I hurry to you-know-where.” “I wonder,” he said, “what I should do, whether to leave my case or you.” “Me, please.” “No, I won't,” he said, and he began to go ahead. I, as it is hard to struggle with the victor, follow... By chance his adversary came face to face with this fellow. “Where are you going, you scoundrel?” he cries in a loud voice, and, “May I call you as a witness?” I offer my ear. He hastens him away to court. There is shouting from both parties, and confused scuffling. Thus did Apollo save me.¹⁴

Horace's companion likely was involved in a suit before the common private court for Roman citizens — that of the praetor urbanus located very much nearby.

Praetor urbanus in the Forum of Augustus

The praetor urbanus’ court did not remain permanently in the Forum Romanum. As part of his overall building plan to make Rome the envy of the empire for both beauty and utility, Augustus built another forum to deal with the increase in people and cases at law, and stipulated that public trials be held in this new forum “separatim”, (separately).¹⁶ Ever practical, Augustus likely insisted that the praetor move with the standing courts when the forum first opened in approximately 2 BC.¹⁷ The removal of this magistrate and all the associated traffic, including the likes of Horace's companion, would have greatly eased the pressure on the Forum Romanum.

Epigraphical evidence both confirms this location and suggests a residency of long duration. Two sets of first-century documents, known as the Tabulae Herculanenses and the Tabulae Sulpiciorum, give a human dimension to legal activities within the Forum of Augustus.¹⁸ Originating in the region of Pompeii, the now legendary community located two hours south of Rome, nine of these documents place local individuals in Rome within this forum on a specific day and at a specific time for judicial purposes.¹⁹

Before discussing how these documents confirm the location of the prae­tor's court in this forum, we must first briefly consider the nature of the texts.

Vadimonium factum Cala toriae Themidi in iii Non(as) Decemb(res) prim(as) (vacat) R\o]mae in foro Augus(to) ante tribunal praetoris urbani hora secun\d]a HS M dari stipulata es\t] ea ^\uae] se Petroniam \Sp. f. Iustam] esse dicat, s\po]po\ndit] Calatoria \Them\is t(utore) a(uctore) C Petronio Tel\e]sph\o]ro.

V. f. \C. Petronio Telesphoro].

A vadimonium was made against Calatoria Themis for the third of December at Rome in the Forum of Augustus before the tribunal of the praetor urbanus at the second hour. The woman who calls herself Petronia Iusta, the daughter of an unknown man, stipulated for, and Calatoria Themis, on the authority of her tutor C.

Calatoria Themis and Petronia Iusta were engaged in a dispute concerning (as we learn from other documents in the collection) the freedom of Petronia Iusta.²⁶ By means of this vadimonium these women agreed to meet in Rome on the third of December at the second hour of the day to continue their dispute before the praetor urbanus. Failure to appear meant the forfeiture of 1000 sesterces.

TH 14, while typical in its format and general features, is unique in stat­ing that the rendezvous of the parties will be before the tribunal itself of the praetor urbanus, rather than at some architectural feature, such as a specific column or statue located within the forum. It can be no clearer that the court of the praetor urbanus was located within this forum at the time Petronia Iusta and Calatoria Themis were engaged in litigation. Unfortunately, we cannot learn from the document where within the large forum the court was situated.

The forum's architectural features, however, enable us to place the urban praetor's tribunal with greater specificity.²⁷ If we consider the forum as a whole, the tribunal could occupy one of three types of spaces: the open cen­tral area, the porticoes located on the long sides of the central area, or the exedrae — the semicircular areas attached to both porticoes. Given the spatial needs of court participants, surely the most practical locations are the two exedrae² Vitruvius, an architect of the late first century BC, describes exedrae as useful areas for discussion for philosophers, teachers of rhetoric, and oth- ers.²⁹ This utility is no doubt due to the degree of separation from passers-by that a group could achieve in a deep semicircular space. The porticoes are also a possibility, but undoubtedly a court would have avoided a location where a constant flow of foot traffic was guaranteed by the protection pro­vided from the sun and weather, as people moved in and out of the forum.

Exposure to weather is indeed also a relevant factor. To place the court of a very active magistrate in the central area where it would be fully exposed to the elements, with other more protected spaces nearby, seems impractical. Unlike the quaestiones, which likely were called together on an ad hoc basis, the jurisdiction of the urban praetor was such that he probably could not hold court often enough to stay abreast of the matters needing his attention. It makes little sense to place his court in a location that could be open to extreme sun, winds, or rain. Even porticoes were not weatherproof; Vitruvius advises that porticoes required double colonnades to keep out rain.³⁰ Those of the Forum of Augustus had only a single colonnade.

Furthermore, it is likely that the court grouping would have taken on a semicircular form (i.e. magistrate at front, litigants and advocates before him, audience of varying size behind them and around the sides), and this shape favors the exedrae (open areas) rather than the porticoes.³¹

While such practical reasoning suggests a home for this court within one of the two exedrae, epigraphical evidence supports a position within the west­ern exedra. The reading of one of the Herculaneum tablets' opening section has recently been amended, with important results:

Descriptum e[t recognitum ex] | edicto L. S'erv[eni Gall]/' pr(aetoris) quo[d propo]|situm erat ffomat in f]oro Aug[usto sub] | portico lulia a[d colum]nam [..ante] tribunal eius [in quo sc]riptum e[rat id] | quod infra sc[riptum] est: | L. Servenius Gallu[s pr(aetor) dicit:] | M. Ofillius Macro [et Ti. C]rassius Firm[us IIviri]...

Copied and checked from the edict of Lucius Servenius Gallus, praetor, which was posted at Rome in the Forum of Augustus under the Porticus lulia on the column... before his tribunal on which was written that which is written below: Lucius Servenius Gallus, praetor, says: Marcus Ofillius Macro and Tiberius Crassus Firmus duovirs... ³²

The remaining contents of the document, while very fragmentary, tell us that the copy was made of the praetor's ruling concerning an application made by a Junian Latin to gain citizenship for his infant daughter. Unfortunately, this document does not make clear whether L. Servenius Gallus was an urban praetor or a peregrine praetor. However, since the issue in this document (the status of one of the petitioners) is very similar to the case involving Calatoria Themis and Petronia before the praetor urbanus, it is likely that L. Servenius Gallus was praetor urbanus. Utilizing Ovid's detailed description of the statu­ary in the Forum of Augustus, scholars have located the Julian family statues within the west exedra and portico.³³ It thus is no surprise that this portico came to be called the Porticus lulia. Viability of a location in the exedrae com­bined with the evidence drawn from this document permits the placement of the court specifically within the west exedra³

It need not trouble us that this document refers to the porticus as being in front of Gallus' tribunal. The excavations of the Forum of Augustus show that the columns of the porticoes extended across the entire length of the exedrae. This edict likely was attached to one of these columns, which separated the porticus from the exedra and made the relationship between the two locations practically indistinguishable.

While TH 14 is important for placing the court of the urban praetor in the Forum of Augustus, it is in fact the unique exception rather than the rule with regards to the location chosen for executing the vadimonium. In the other surviving vadimonia the locations are physical architectural features of the Forum of Augustus as opposed to the court of the praetor himself, which we find in TH 14. The statues of the various divinities associated with Apollo and the Julian family, which along with those of the summi viri, Rome's “great men”, lined the porticoes and exedrae of the forum, are used as rendezvous points, some in combination with a column that presumably was nearby.³⁵ So we find parties meeting “Romae in foro Aug(usto) ante statuam Cn(aei) Senti Saturnini \t\riumphalem”, “at Rome in the Forum of Augustus before the tri­umphal statue of Cn. Sentius Saturninus”³⁶ and “R\o]m\ae] in foro Aug\usto] ante sign\um] Dianae Lucifera\e] ad co\lumnam] x”, “at Rome in the Forum of Augustus before the image of Diana Lucifera at the tenth column”.³⁷ Two other documents use the altar and Temple of Mars Ultor as the meeting point: “\Roma]e in foro] Augusto ante aram \M]artis Ultoris pr\o]xum\e] gradus", “at Rome in the Forum of Augustus before the altar of Mars Ultor very near the steps”³⁸; “Rom\a]e in foro Augusto ante ae\d]e /Viafiis] Ultoris”, “at Rome in the Forum of Augustus before the Temple of Mars Ultor.”³⁹ The exactness with which we can place these legal transactions involving named inhabitants of the Roman Empire is noteworthy, as is the fact that all refer to locations that would have the litigants meeting at the very end of the forum where the exedrae were located.

With the court of the praetor urbanus placed securely within the Forum of Augustus, it remains for us to identify the chronological period of its resi­dency. The testatio sistendi contains consular names that date the appearance to 31 January 40. Again, on the basis of consular names, the vadimonium men­tioned in the conventio finiendae controversiae was for appearance in this forum on 1 November 48.⁴⁰ Concerning the vadimonia, we are able to date the grouping TH 13—15, all of which are connected to the same legal issue, to 74—76.⁴¹ Unfortunately, the poor preservation of the Sulpicii collection of vadimonia frustrates attempts to assign specific years to any of them; the best estimate is mid-first century.⁴² The various monthly dates span two in March (12 and 17),⁴³ one in September,⁴⁴ two in November,⁴⁵ and one on December 3.⁴⁶ Thus, the court of the praetor urbanus can be placed within the Forum of Augustus as early as 40 and as late as 75.

We can perhaps push the terminus post quem date for the praetor urbanus’ occupation back still earlier. As mentioned above, there is a strong possibil­ity (although little direct evidence) that Augustus' planned uses of this forum included this court. Suetonius records one of the reasons for the forum's construction to be the continual increase in the number of legal cases.⁴⁷ Maternus, in Tacitus' Dialogus, recalls how in former times the Forum Romanum was packed with audiences to hear cases, suggesting that by his own day that was no longer the case.⁴⁸ Augustus' forum likely had fulfilled its function, achieving the goal of removing some of the pressure from the Forum Romanum. Scholars naturally wonder about Suetonius' statement that the forum was opened with haste, before the temple was finished.⁴⁹ David suggests that because of bad overcrowding the forum was consecrated early so that the praetors — whom he believes needed to have their tribunals located within a templum — could move there even while the temple was being finished.⁵⁰ Whether the praetors warranted such precipitous action or not, it is plausible that the praetor urbanus occupied this forum space shortly after its completion. Be that as it may, the archives from Herculaneum and Puteoli provide incontrovertible evidence for the praetor urbanus’ residency within the Forum of Augustus during the Julio-Claudian period and beyond.

Praetor peregrinus in the Forum Romanum

Turning to the magistracy of the praetor peregrinus, we find that literary sources securely place his court, like that of the praetor urbanus, in the Forum Romanum during the last two centuries of the Republic.⁵¹ More specifically, some sources place his tribunal “in medio foro”, “in the middle of the forum” — though this also does not give us an exact location.⁵² Archaeological findings, however, may enable us to determine the exact placement of the praetor pere­grinus’ court within the central area of the Forum Romanum. Identical to that of the praetor urbanus, this praetor's court also subsequently moved to the Forum of Augustus in the imperial period.

In the pavement of the Forum Romanum, approximately 22 m to the east of the Rostra of Augustus, is an inscription 12.65 m in length: “L NAEVIVS L F SVRDINVS PR.”⁵ Another copy of this inscription, found in the sixteenth century on a nearby slab, continues: “INTER CIVIS ET PEREGRINOS.”⁵⁴ When exactly Naevius Surdinus was praetor peregrinus is unknown. We know of a Naevius who was triumvir monetalis in 15 BC. If this is the same person, he would then have been praetor between approximately 12 and 10 BC.⁵⁵ On the basis of this inscription it is generally held that Naevius undertook the repaving of the entire Forum following the fire of 14 BC. The archaeological record suggests that he also restored the Lacus Curtius, installed his tribunal ex novo or restored it, and perhaps built the Augustan phase of the rostra.⁵⁶ That the inscription records the repaving of the Forum does not preclude the con­clusion that the location of the inscription itself is linked with the physical location his court occupied within the Forum.

While Richardson and others readily accept that Naevius Surdinus placed this inscription near his tribunal, they fail to identify any nearby structures as that tribunal.⁵⁷ As a result, Richardson argues that the tribunals of the prae­tors were very much temporary structures, and thus left no trace on the Forum floor.⁵⁸ More recent scholarship demands that these conclusions be reconsidered. Based on their archaeological work on the central area of the Forum Romanum, Giuliani and Verduchi conclude that the area located approximately 1.5 m to the east of Naevius' inscription and previously iden­tified by Hülsen as the “Aiola di Marsia”, “Grove of Marsyas”, an area occupied by a fig and an olive tree and the statue of Marsyas, was actually a raised platform of sizeable dimensions in the very early imperial period.⁵⁹ They suggest that this platform should be identified as the tribunal of the praetor peregrinus.⁶⁰

Based on their examination of the materials used in its construction, Giuliani and Verduchi conclude that the structure measured 8.9 x 7.9 m² and was of both modest weight and reduced height.⁶¹ As to the structure’s date, Giuliani and Verduchi conclude that it is post-republican and pre-Severan. Thus, the only remaining building period to which the structure may belong is the reconstruction undertaken by Naevius Surdinus. Based on their findings, Giuliani and Verduchi envision a square enclosure of small corner pillars con­nected to external slabs of marble or travertine, the top surface of which was probably accessed by a short set of encased stairs located on the north side. They tie this structure closely to the inscription of Naevius Surdinus, the first letter of which lies exactly parallel to the north boundary line of the structure.⁶²

The Anaglypha Traiani (two marble reliefs depicting activities taking place within the Forum) further support Giuliani and Verduchi’s identification of the Aiola as the tribunal of the praetor peregrinus.⁶³ The date and subject mat­ter of these two reliefs are in dispute. Presently, scholars date them to either Trajan’s or Hadrian’s reign. The relief described as an adlocutio or alimenta scene is of specific interest here because of a raised platform in the centre of the relief, on which stands a woman with two children, before a magistrate seated on a curule chair.⁶⁴ In the scene, to the right (west) of the platform, is the statue of Marsyas and a fig tree. Behind these figures the relief portrays the buildings of the southern fagade of the Forum, clearly indicating that the raised platform was located in the central area of the Forum Romanum⁶

Scholars attempting to identify the overall subject of the scene naturally see the platform and its occupants as an important element, and thus assign various meanings to it, depending on what scene they believe the entire relief depicts. However, if we accept Giuliani and Verduchi’s belief that this area of the Forum, previously understood to be unpaved and therefore the “aiola”, was in fact a tribunal, then surely this raised platform is that tribunal and the Marsyas statue and fig tree were located to the west of the tribunal but very much nearby, as the Anaglypha Traiani suggest.⁶⁶ The comments of third- century scholiasts on Horace’s reference to the statue show that it was still historically associated with legal activities, including the hearing of cases and the executing of vadimonia.⁶⁷ Thus, the central group portrayed on the adlocu- tio relief are real people on the tribunal of the praetor peregrinus, rather than a statuary group as has been suggested by Torelli.⁶⁸

The archaeological work of Giuliani and Verduchi on this area of the Forum, coupled with the ancient literary sources and artistic representations, enable us to conclude with reasonable certainty that Naevius Surdinus placed his inscription in this particular location precisely because it could then com­memorate two services he had provided for the state: his repaving of the Forum and his year-long supervision of the legal system as praetor peregrinus.

Praetor peregrinus in the Forum of Augustus

The inscription of Naevius Surdinus clearly places the tribunal of the praetor peregrinus in the Forum Romanum during the early part of Augustus' reign. Evidence from the vadimonia suggests, however, that the praetor peregrinus accompanied the praetor urbanus to a new location in the Forum of Augustus.⁶⁹ Two of the vadimonia tablets use a different legal terminology from the rest, and both concern legal disputes involving the same two people — C. Sulpicius Cinnamus and Trypho Alexandrinus.⁷⁰ These vadimonia follow the standard form in that the parties agree to meet in the Forum of Augustus, except that Trypho, rather than promising by means of a sponsio to pay a fee if he fails to appear (which the parties in all the other vadimonia do) promises in a fideipromissio. His failure to use the sponsio, a form that was available only to Roman citizens, indicates that he was not a citizen, a fact that his name alone suggests. In turn, this means that the dispute could not be heard by the urban praetor (who dealt only with issues between Roman citizens) but rather would be heard by the praetor peregrinus.⁷¹

No other direct evidence confirms the residency of the praetor peregrinus in the Forum of Augustus. However, with the praetor urbanus firmly established within this forum, the paucity of evidence is less distressing. It would have been practical for the two main praetors overseeing Rome's legal system to be in close proximity.

Since we have placed the court of the praetor urbanus in the west exedra, the logical location for the praetor peregrinus would be the east exedra. The two magistrates then balance in both function and location.⁷² This arrangement would also fit excellently with the political ideology of the forum. Augustus established a temple to Mars Ultor, “the Avenger”, within his forum to com­memorate his success at avenging the murder of his great-uncle, Julius Caesar. He then placed in one exedra statues of Aeneas and his own Iulian fam­ily, and in the other Romulus and summi viri, and he filled both porticoes with additional summi viri. Through this artistic program Augustus promoted himself as “the avenger”, the one who brought the assassins of Caesar to “jus­tice”. Thus, the link to the two courts is made clear. An avenger exacts justice. As Augustus exacted justice, so the praetors would exact justice, made possible by the emperor who through his own act of imposing justice had brought peace.

The placement of the court of the praetors in their respective exedrae strikes a balance in both function and location. Augustus linked his family strongly to the foundation myth of Rome through Venus, the mother of all Iulii, a family that appeared frequently in Rome's urban history. The courts of the highest urban legal authority in Rome resided amongst the artistic representations of the ancestors of Augustus, the restorer of peace, and other summi viri.

In the eastern exedra and portico, beyond the temple of “the Avenger”, were the statue of Romulus, the first triumphator of Rome, as well as representations of the greatest Roman “imperialists, generals, and triumphators”.⁷³ These had subdued and incorporated outsiders — foreigners — into the Roman state, and their message thus was equally powerful for the court of the praetor peregrinus, who oversaw disputes between Roman and foreigner.

What messages might such an arrangement have sent to those approach­ing these courts? For Roman citizens and inhabitants of Rome, the sight must have inspired. The connection between the emperor, the foundation of Rome, and ideas of justice and peace must have filled Roman visitors to the forum with pride in their city and citizenship. The message for non-citizens was vastly different: the standards recovered in 20 BC from Parthia and installed in the Temple of Mars Ultor in 2 BC put the “avenging” nature of the deity in a far more militaristic context.⁷⁴ Such a scene must have firmly told a visiting non-citizen that he or she was the “other”, outside the Roman mantle of empire. One wonders if Trypho, the defendant from Herculaneum dis­agreeing with a citizen, really expected to obtain justice after walking down that colonnade of generals and triumphators, each with an elogium citing the peoples he had conquered in the name of Senatus Populusque Romanus.

Any attempts to determine when the praetor peregrinus moved from the Forum Romanum to the Forum of Augustus meet with the same frustration we encountered over the move of the praetor urbanus. The two relevant vadimonia do not mention a year. Camodeca suggests a terminus post quem of 44 based on the mention of “the statue of the triumphal Cnaeus Sentius Saturninus” in the vadimonia. This Saturninus is likely the consul ordinarius of 41 who played an important role in Claudius' British campaign. Dio, reporting on Claudius' return to Rome following the conquest of Britain, states he awarded orna­menta triumphalia to many of the senators who had accompanied him. For Rufrius Pollio, Claudius' praetorian prefect, Dio says this included a tri­umphal statue.⁷⁵ The evidence suggests that this honor was given to Sentius as well. Using as the meeting location a statue that was a relatively recent addition to the forum (the archive's end date is roughly 61) and likely, for that reason, more widely known seems most practical. Little more can be added beyond reiterating that, since one of Augustus' reasons for building this com­plex was to provide space for legal activities, the move of both praetors may have occurred soon after its completion.

The workings of the praetors’ courts in the Forum of Augustus

Careful examination of these vadimonia has necessitated a re-evaluation of how vadimonia worked, and how these two courts operated on a daily basis. Previously, it was assumed that all vadimonia compelled the parties to meet specifically before the court of the praetor while he was holding court, as TH 14 does. The question arose of how the courts in Puteoli or Herculaneum knew exactly on which days and at what hours the praetors of Rome would be in session. It has been suggested that, since other locations near the court of the praetor were also used, the important legal requirement of a vadimonium was that the two parties meet each other and then, at that point, approach the court for their case to be heard.⁷⁶ In this way, even if the praetor was not meet­ing at that specific time, or if he was too overloaded to hear that case on the given day, the parties would be able to fulfill their legal obligation.

These various rendezvous locations raise two additional issues. Realizing that the praetor may not be presiding at the time specified, disputants may have set their meeting using architectural features of the Forum of Augustus. But how did they determine that location? Were there standardized locations? Rodger suggests that the litigants, not being inhabitants of Rome, chose prominent structures or specific known statues.⁷⁷ This line of reasoning is useful, but it cannot fully explain the locations we find mentioned. Why choose “the altar of Mars Ultor” when the “Temple of Mars Ultor” is substantially more promi­nent? Would the statue of Diana or Sentius Saturninus, which we find in the vadimonia, have been any more prominent than the statues of Q. Fabius Maximus or C. Marius?⁷⁸ Size and uniqueness could be an explanation. The altar of Mars Ultor was clearly smaller than the temple itself and so reduced the chances of the two parties missing one another. We can assume that there were far fewer statues of women, human or divine, in the forum. The statue of Diana, who would be identifiable by the iconography alone, may have been chosen to accommodate the limited literacy of one or both of the litigants.

Yet, was some other motive or system at work? In two documents involv­ing completely different litigants, the vadimonia specify the same location “before the triumphal statue of Cn. Sentius Saturninus”.⁷⁹ With so few docu­ments surviving, the chance of such repetition, were the choice of location merely random, seems unlikely. Is it also chance that Martial mentions seal­ing a document before the same statue of Diana used as a meeting point in TH 6? These repetitions suggest that specific locations within the forum were chosen according to the type of issue or the status of the individuals involved.

This idea prompts comparison of the locations found in the extant vadimonia with the locations mentioned in another type of relevant document found within the two Campanian archives — the testatio sistendi. This document regis­tered either fulfillment or breach of the terms of a vadimonium. One testatio sistendi refers to events in Rome, and a location is chosen that does not appear in any of the vadimonia'. “[Rom]ae in foro Augusto [ante] statuam Gracci [ad colum]nam quar =[tam prox]ume gradus...”, “at Rome in the Forum of Augustus before the statue of Gracchus at the fourth column near the steps...”.⁸⁰ These steps are either those of the temple itself or those at the entrances to the com­plex, in the north-east and south-east corners on each side of the temple. In either case, the statue was certainly near or in the exedrae of the forum.⁸¹

Perhaps, then, with two types of documents that required disputants to appear in the Forum of Augustus, we can take the evidence further. Clearly these vadimonia functioned to guarantee that the parties to the dispute would meet at the agreed upon place and then go to the praetor's court. We have before us seven examples from two collections found in one area of Italy with a range in dates from AD 26 to 75; the total number of such parties coming to the Forum of Augustus from other parts of Italy, and perhaps even beyond, must have been substantial, and under the proposed system the crush on the praetor's court would have been extreme. A streamlining process may have involved assigning a specific location within the forum for vadimonia, depending on the nature of the dispute or the identity or status of those involved, at which point the litigants would have been entered into the docket of the praetor's court.⁸² The forum was large and the porticoes, delineated with the statues of the summi viri, could have contained tables for judicial officials. Aulus Gellius provides helpful information as he recounts a verbal duel between a praetor and an advo­cate that took place sometime in the second century:

Quapropter urbanissime respondisse praetorem, non indoctum virum, barunculo cuidam ex advocatorum turba,

Sulpicius Apollinaris in quadam epistula scriptum reliquit. "Nam cum ille,” inquit, “rabula audaculus itapostulasset verbaque ita fecisset: �Omnia, vir clarissime, negotia de quibus te cogniturum esse hodie dixisti diligentia et velocitate tua profligata sunt, unum id solum relictum est, de quo, rogo, audias,’ tum praetor satis ridicule: �An illa negotia de quibus iam cognovisse me dicis profligata sint equidem nescio; hoc autem negotium quod in te incidit, procul dubio, sive id audiam sive non audiam, profligatum

est.

Therefore Sulpicius Apollinaris left written in a certain letter that the praetor, a not uneducated man, had responded most wittily to a certain simpleton from a crowd of advocates. “For when that man,” he said, “that impudent advocate had requested the following he had replied: â€?All the business, most excellent sir, which you said you would examine today, has been completed by means of your attentiveness and quickness; only one matter remains, which, I beg, you will hear,' then the praetor with suitable wit: â€?Whether that business which you say that I have examined already has been completed, indeed, I know not. However, this business which you are involved in has been ruined, without doubt, whether I hear it or not.'”⁸³

It seems clear that the praetor did at some point announce the matters he would hear on that given day. The creation of this docket would have involved attendants or minor officials to record and organize the parties attempting to have their cases heard.⁸⁴ The most logical place for these officials to organize the day's activities, or several days' together, would be near the court's meeting place.⁸⁵ It may be possible to link the locations mentioned in the archives with individual officials arranging the court's activities within the forum. The testa­tio sistendi mentions a location not found in any of the vadimonia precisely because the nature of the document is different. Those litigants who needed a record either of having fulfilled their vadimonium or for proof that the condi­tions had not been met went to an official who produced such documents from his desk near the statue of Gracchus.

At this point a second issue arises — the references in TH 6 and TPSulp 19 to numbered columns in the forum. The language does not make clear whether a numeral was etched into each column, like those over each ground-floor arch of the Colosseum, or whether it was assumed that the litigant would count the columns upon arrival.⁸⁶ Those unfamiliar with Rome might have had difficulty determining at which end to start. However, in both cases where a column is mentioned, further details are given that could function as a second check (e.g. the statue of Gracchus, at the fourth column, near the stairs). Again, the level of detail suggests that perhaps individual judicial desks occupied positions at spe­cific columns. The details certainly adumbrate the congestion of this forum during the court season: the location was specific enough that, regardless of crowds, neither party could falsely claim to have appeared.

Employing court officials to deflect and streamline access to the magis­trate's court would have been a natural solution to limit the milling about of advocates, litigants, and nosy gossips before the court of the praetor urbanus, and no doubt of most other praetors. Apollinaris, in the above passage from Gellius, states specifically that an advocate was “ex advocatorum turba", “from the crowd of advocates”.⁸⁷ If a large number of matters were to be heard dur­ing a specific court session, it would not have been surprising to find a cluster of advocates close by, comparing notes and watching the proceedings. As Apollinaris lived during the second century, he likely describes the court in the Forum of Augustus.

Quaestiones perpetuae: the courts of the other praetors

The courts of the other praetors are mentioned less often in the sources, and thus are even more difficult to locate in Rome. During the last one hundred years of the Republic, several new standing public courts, the quaestiones perpet­uae, were established. Each court was constituted by an individual law to punish a particular crime or group of crimes, and was presided over by a praetor in the earlier years when the number of courts was small. As courts increased and the number of praetors became inadequate, a new quasi-magistracy was created, the iudex quaestionis, to preside over individual courts.⁸⁸ While quaes­tiones perpetuae continued to function well into the imperial period, new court bodies gradually began to usurp some cases that previously had gone to these courts.⁸⁹ While all praetors likely could have heard any type of legal case, where they exercised their jurisdiction can be gleaned only through examining the evidence concerning the position of the quaestiones perpetuae within the city.⁹⁰

We have no evidence at all for the placement of these courts during the early years of Augustus' reign. A number of the quaestiones perpetuae of the late Republic met within the Forum Romanum area and these courts likely stayed here into the imperial period, like the courts of the praetor urbanus and the prae­tor peregrinus. In 56 BC the hearing of Calpurnius Bestia for ambitus, bribery, was located “in foro medio", “in the middle of the forum”.⁹¹ The use of such a phrase immediately calls to mind the tribunal of the praetor peregrinus as a possible loca­tion. Arguments have been made to place multiple courts near the court of the urban praetor when it was located at the east end of the Forum.⁹²

We are on firmer ground for the last half of Augustus' reign. While only one detailed piece of information exists for the courts' location in this period, there is no reason to doubt its veracity, and the Forum of Augustus again seems likely:

Fori exstruendi causa fuit hominum et iudiciorum multitudo, quae videbatur non sufficientibus duobus etiam tertio indigere; itaque festinatius necdum perfecta Martis aede publicatum est cautumque, ut separatim in eo publica iudicia et sortitiones iudicum fierent.

His reason for building the forum was the large number of people and cases, which seemed to demand a third, two not being sufficient; and so it was opened hastily, with the temple of Mars not yet finished, and it was provided that the public courts and the selection of the judges would be held in that place separately.⁹³

Based on Suetonius' description, it appears that the housing of the quaestiones perpetuae (the iudicia publica) was a motive for the forum's construction. It is likely, therefore, that these courts moved from the Forum Romanum to the Forum of Augustus in approximately 2 BC. Quite a large space would have been needed since each of the quaestiones included a panel of possibly 45 judges under the general supervision of the presiding praetor. As the praetor urbanus and the praetor peregrinus occupied the exedrae, the quaestiones likely took advantage of the vast open area of the forum, weather permitting. In poor conditions, the courts may have crowded into the porticoes, which would have been somewhat less accommodating for groups of that size. Settling such a group within a portico would certainly have inhibited the flow of traffic along the sides of the forum, but if the weather were inhos­pitable enough to drive the courts into the protected area, it would in any case greatly minimize the amount of foot traffic in the forum. However, since individual quaestiones did not meet with the same frequency as the praetor urbanus and the praetor peregrinus, the quaestiones would have been less likely to encounter inclement weather.

Since we hear of no other locations in which these courts met during the imperial period, it seems best to assume that, for as long as they individually continued to function, the quaestiones found their new home in the Forum of Augustus suitable.

A praetor’s tribunal⁹⁴

While it is possible to identify the locations where several of the praetors held their courts, to determine the physical details of their tribunals is much more difficult, though happily less critically important. In the imperial period most structures used as tribunals were temporary, moveable, and therefore made of wood, and would have left no permanent impression on the pavement. That said, however, they were not so temporary as to be dis­mantled at the end of every court day.⁹⁵ Rather, the tribunals remained in place for the next meeting day, or, if another court was scheduled, the vacant tribunal could be used by other magistrates or for other purposes. If some other use of the space was pending and the tribunal would be in the way it could be dismantled.

Representations of various types of platforms appear in art and coinage.⁹⁶ These structures were used by a variety of people for a range of activities. Surviving images show that while platforms fit into three height categories, the usable surface space had far more flexibility; the number of occupants found on platforms ranges from one to nine. Within the representations are found depictions of magistrates, including praetors, seated on their tribunals holding court. In one example, a relief found near the Lacus Iuturnae to the south of the Forum Romanum, two individuals argue their dispute before a magistrate.⁹⁷ Although fragmentary, the scene shows one party to the dispute who holds a roll in his left hand and stretches forth his right hand toward the figure on the tribunal. The two hands of his opponent, one of which also clutches a roll, are visible at the left edge of the fragment. While only part of the platform survives, the hands of the opponent suggest that the platform's back edge was immediately to the left of the fragment's edge, resulting in a square shape. Upon the platform a leg of the sella curulis is clearly visible, indicating that the man upon the platform, whose legs alone survive, was a magistrate with the right to use this symbol of authority, rather than a unus iudex, a judge who was a private citizen.

Within these types of scenes, the surface area of the tribunal is consistently large enough to accommodate only the seated figure of the magistrate. In no scene is the magistrate accompanied by another. The limited area of these tri­bunals is further attested to by the report that on one occasion when Tiberius attended the court of a praetor he sat “in cornu tribunalis”, “at the corner of the tribunal”, at ground level, so as not to displace the praetor from his seat.⁹⁸ Clearly, had Tiberius wished to occupy the tribunal, the smallness of the tri­bunal would have necessitated its abandonment by the praetor.⁹⁹

Unlike their colleagues, the praetor urbanus and the praetor peregrinus likely spent almost all their court time dealing with in iure proceedings. Such a huge amount of administrative work perhaps necessitated the enlargement of the platforms beyond the single-occupant size depicted in art. We saw above that the surface area of the tribunal of the praetor peregrinus in the Forum Romanum measured 8.9 x 7.9 m. Approximately 72 m² is certainly a far larger size than the praetor would have needed for himself. Such an enlargement could have accommodated various record-keepers (with space even for work­ing tables) and other aides. At the same time, however, we must be cautious. The large size of this tribunal is perhaps linked directly to its location, in that it may have been built larger than necessary to facilitate its use for forum activities other than the praetor's court.

Although we know that assessors served as advisors to many magistrates, the tribunals did not have to be large enough to accommodate assessors as no evidence of an imperial date places them on the structures.¹⁰⁰ In fact, the available information suggests that assessors attending upon most magis­trates sat either beside the platform or across from it.¹⁰¹

Whatever its surface area, the tribunal was certainly raised in order to ele­vate the magistrate while he was seated on his sella curulis.¹⁰² Writing in the late first century, Martial speaks of how magistrates cannot get away from enthusiastic well-wishers, even when they are on their “altum tribunal", “high tribunal”. Martial speaks generally here, including mention of the consul, the tribune, and the praetor. It would appear he believed the tribunals of all these magistrates to be of equal height.¹⁰³ While altum does not give us much to work with, among the artistic representations tribunals are so consistently depicted as rising to the waist of an adult standing at ground level before them that it is reasonable to conclude that tribunals typically rose to a height between 1 and 1.25 m.¹⁰⁴ We must remember, too, that the magistrate would have been seated on the tribunal. The required height, therefore, must have been sufficient that the magistrate's head was still higher than that of a person standing before the court at ground level. At the same time, the tribunal had to be low enough to facilitate communication between the seated magistrate and the litigants and advocates.

Some scholars are intent on placing the panels of judges, who are known to have occupied benches, on the tribunal with the presiding magistrate.¹⁰⁵ They rely heavily on two passages of Cicero and the size of the praetor peregri­nus’ tribunal in the Forum Romanum.¹⁰⁶ No direct evidence of imperial date can support or refute this theory. While placing them on the tribunal would somewhat sequester the panel and perhaps add to the judges' status, practical aspects make this arrangement untenable. Such a platform would have been very large. Standard anthropometric calculations set by modern architects for the amount of space a single person needs to comfortably stand, sit, or lie down have determined that a seated person needs approximately 0.84 m² (9 ft²) of space.¹⁰⁷ Using this number, we can calculate that 45 seated people would need a minimum total of 37.80 m² (407 ft²), which results in a plat­form 6.15 x 6.15 m.¹⁰⁸ It is likely that the presiding magistrate would occupy the same platform and so we should envision a platform slightly larger still. While there would be no difficulty in making such a structure, visibility is an issue. If the platform matched that of the praetor in height, 1—1.25 m, those judges seated in the centre of the block would have had difficulty seeing any­one standing before the platform. This problem could be rectified by constructing the platform as a set of bleachers, each level being able to hold a bench. However, this seems a far more complicated solution to the problem than just leaving the judges at ground level, a position from which all the judges could see the advocate if he stood before them.¹⁰⁹ A statement by Quintilian supports this conclusion. In discussing various movements of the advocate’s arms and feet during a speech, he says: “Multum ex iis, quaeprae- cepimus, mutari necesse est ab iis, qui dicunt apud tribunalia", “Many of these things which I prescribe will need to be changed by those who speak before tribunals.”¹¹⁰ Since Quintilian’s discussion here is focused on the public courts with their panels of judges, this passage implies that the judges were not on a platform. Quintilian also says specifically that the defendant should first throw himself to the “stratum" (floor).¹¹¹ Surely, he does not mean that the defendant should first climb up on to the tribunal and then throw himself at the feet of a judge. Space on the platform was probably not sufficient to allow for such activity. An alternative arrangement of the judges will be pro­posed in Chapter Two.

The impact of procedure on a court’s location

A further distinction must now be made regarding the courts of the praetor urbanus and the praetor peregrinus. A private suit consisted of two parts, only the first of which was presided over by the praetor, making it unnecessary that the second part take place in the same location. Often when scholars dis­cuss the topography of the courts, they avoid any specific discussion of this issue, which can lead to confusion. When a source mentions a trial’s location, we must attempt to determine the actual procedural stage of the trial — often a difficult, if not impossible, task.

Under the formulary procedure, a private suit started in the court of the praetor (in iure). At these proceedings the praetor listened to the argument between the two parties, determined the formula according to which the unus iudex (single judge) or recuperatores (a small panel of three or five iudices) would provide a ruling, and appointed the unus iudex or recuperatores to hear the case. The second stage was the hearing of the dispute itself, held apud iudicem (before the judge(s)). During this stage the case would be fully argued and a ruling made, thereby concluding the dispute.

A public trial was also divided into stages. From Cicero's writings we have an understanding of the public procedure in the late republican period. However, this procedure, as well as many other features of the legal system, may have been substantially regulated, if not overhauled, by Augustus' leges luliae ludiciariae, the details of which remain completely obscure.¹¹² For our present discussion, it is clear that a trial in a quaestio before the full panel of judges was preceded by two or perhaps even three hearings. The first step consisted of the postulatio. A party approached the praetor or the iudex quaestionis in charge of the appropriate quaestio and asked for permission to prosecute. If multiple accusers were seeking permission, a divinatio was held at which it was determined who would win the right. It appears that a panel of judges could be involved in these decisions. The last preliminary hearing consisted of the formal laying of the charge, nominis delatio. The accused was required to be present at this point and no panel was involved. The dispute then went to full trial after the inquisitio, an interval of time set for the collection of evidence.¹¹³

When we attempt to integrate the procedures for public and private cases with our information for the location of these courts, it becomes clear that we must further specify the portion of the trial we are examining. From the information available, we determined the locations for the courts of the vari­ous praetors. Concerning the courts of the praetor urbanus and the praetor peregrinus, we in fact identified where the in iure portion of private disputes took place. With respect to the quaestiones perpetuae, which praetors or their representatives oversaw, our information most likely enables us to identify the location of the full trial, rather than of the preliminary hearings.

The respective differences between the stages of both private and public cases greatly influence the composition of those present as well as the size and arrangement of the court. One substantial difference, in the case of public tri­als, is the absence or presence of a large panel of judges — several dozen people. Scholars apparently do not consider the difference between the two parts of the procedure to have had any real effect on location. Greenidge as well as Richardson, on occasion, assume that both parts of the trial would have occurred at the same place, and draw their conclusions accordingly concern­ing the size and location of the court.¹¹⁴ Is this a safe assumption? In practical terms of the court activities taking place in Rome on any given day, surely the praetor urbanus and the praetor peregrinus held in iure hearings, while at the same time appointed judges dealt with trials in the second stage, at other locations.¹¹⁵ Yet we have not discussed the location of the courts of single judges or of the recuperatores who dealt with the second stage of a private suit, nor the location of the courts of the praetors in charge of the quaestiones when they were presiding, without judges, over preliminary hearings.

Does drawing a distinction between the stages of private suits and public trials necessitate that we discover completely different locations for the other stages? Apparently not. The Forum of Augustus was certainly large enough to house the urban and peregrine praetors' courts as well as various quaestiones perpetuae in the full trial stage.¹¹⁶ Suetonius’ statement that the forum was built to hold the quaestiones is not qualified to include only one or the other phase of the trials. We cannot say unequivocally that if the praetor in charge of a specific quaestio were holding court to hear new charges or to deal with a divinatio, his quaestio was therefore not meeting with a full panel of judges to hear a case at that same time. We know that, due to the constant increase in cases, a iudex quaestionis could preside over a quaestio in session.¹¹⁷ A possible arrangement of these various elements within the forum could include the several quaestiones hearing cases as full courts occupying the large central area of the forum, the praetors of the various quaestiones — those not attending their quaestio and those whose quaestiones were not meeting — registering new cases or listening to hearings within the porticoes, and the praetor urbanus and the praetor peregrinus doing likewise within the exedrae.

It remains to locate the apud iudicem portion of private suits within Rome’s topography. Evidence for placing private suits before a single judge or recuperatores is meagre. We are not given the specific location of any pri­vate suit, of an imperial date, that is clearly at the apud iudicem stage. Our most helpful evidence comes from Vitruvius, who states specifically that private suits were often held in private homes.¹¹⁸ The home of the presiding iudex is a likely location due to its symbolic neutrality.¹¹⁹ Quintilian makes two comments which, although unfortunately vague, may describe this set­ting. In his discussion of the suitability of types of eloquence for specific courts, Quintilian mentions that it is highly relevant whether an advocate speaks “locopublicoprivatone, celebri an secreto”, “in public or in private, before a crowd or separately”.¹²⁰ Some chapters later, when discussing gestures and movements appropriate for specific settings, he states that for the advocate to walk diagonally before the judges (and thereby avoid turning his back to the judges) is impossible in private cases because the space is too small.¹²¹ A small space that limited movement, as well as an audience of fewer people than found at a public trial, corresponds well with what one could expect in a private home.¹²²

The evidence is inadequate to determine whether all private suits in the sec­ond stage were held in homes; no rule that stipulated this has survived. Presumably, some participants wished for as much public attention as possible and would have resisted such a location. The most likely alternative sites to sug­gest for such hearings are again the large public spaces of Rome, particularly the fora. It is likely that the Forum of Augustus did not host private hearings. Suetonius’ statement that all public trials were to be held there suggests that a line was drawn between the two jurisdictions even though the praetor urbanus and the praetor peregrinus dealt with both private and public matters. And, in practical terms, housing the various courts of the praetors and their quaestiones likely filled the forum. The other fora, however, had ample space.

While there is little certainty about the location of private hearings, some comments can be made on the physical features of these courts. Single judges and recuperatores likely used tribunals when dispensing justice.¹²³ When dis­cussing the various movements of the advocate’s arms and feet during a speech, Quintilian states: “Multum ex iis, quaepraecepimus, mutari necesse est ab iis, qui dicunt apud trihunalia", “Many of these things, which I prescribe, will need to be changed by those who speak before tribunals.”¹²⁴ Since Quintilian focuses on the public courts and the centumviral court, consisting of panels of judges, this passage suggests that an advocate would have found himself working before a tribunal in other situations. Certainly this was the case if the advocate was speaking during the in iure proceedings before a praetor. It is possible that during the apud iudicem proceedings he faced the same type of structure. In another passage Quintilian specifically refers to speaking before the emperor, a magistrate, and others on tribunals.¹²⁵ Excluding the emperor and magistrates, the most common judges who could realistically have uti­lized a platform were the single judges and the recuperatores. A single judge could have used a platform identical to the single-occupant structure used by magistrates. The recuperatores, numbering three or five, could easily have fit on the larger structure suggested for the praetor urbanus and the praetor peregrinus, or something smaller constructed specifically for them.

In addition to tribunals, benches also are associated with the courtrooms of single judges. Having postponed the private suit he was hearing as a single judge, Gellius mentions that he went “ab subsellis” (from the benches) to get advice on how to judge the case.¹²⁶ One could conclude from this passage that judges in private suits merely sat at ground level on a bench and did not use a tribunal. Yet, the specificity of the passage — that he postponed the case, physically got up from the benches, and went in search of advice — seems sus­pect. It is possible that this is a case of synecdoche, the word “benches” being used to signify the whole court. That the plural form of subsellium is used is also suggestive. If Gellius had been talking specifically about what he was actually sitting on, multiple benches would not have been accurate. Yet even if single judges did not use the benches, these certainly would have been sat upon by the parties to the dispute, their advocates, and any audience that may have been present.