FINAL SETTLEMENT

Once brought to court things begin to move in Curianus' favour. In the first place the action is brought during Domitian's reign and that unstable character was not averse to interfering irrationally in such matters.^{[244] [245] Pliny reports that his fellow heirs were concerned that they might end up being defendants in a criminal case.}

Pliny and Curianus met in the Temple of Concord just off the Forum. Although so seemingly fitting a location for the negotiation of compromises in law suits this is seemingly the only reference which we have to its use for such a purpose. To understand the terms of the negotiation we must first consider what might have happened if the suit had come to court.

As noted above we know less about the procedures in the querela and indeed about the centumviral court procedures in general than we should like. The jurisdiction of the court survived into the third century, the jurist Paul wrote a book de centumviralibus iudiciis and it is seemingly referred to in a text of Scaevola (D 5.2.13).¹³ Even after the disappearance of the court the querela seems to have survived as a procedure elsewhere, presumably in a cognitio process, and the proceedings were sufficiently important to attract a whole title of the Digest in the section devoted to individual actions. Pliny's treatment of the action here and in Letter VI.33 are both of some importance in enabling us to gather what went on in earlier times.

In Letter VI.33 Pliny recounts a case where he appeared for the plaintiff in a querela. (It appears to be a covering letter to a copy of his speech which has not survived, much to our loss.) His client, a woman, had been disinherited by her father on his marrying for a second time.

The implication is that, as in criminal cases before the jury courts, the impact of an orator's speech is more important than the detail of the legal argument. It is perhaps not surprising therefore, quite apart from the paucity of our surviving evidence, that it is difficult to establish the precise criteria required in the centumviral court for establishing that a disinherison was just.

We are twice told by the later jurists that the querela proceeds on the basis that the balance of the testator's mind was disturbed. As Marcian puts it in his Institutes (D 5.2.3):

13 In the Digest title 5.2 a sole book by Paul de inofficioso testamento is quoted (D 5.2.18, 5.2.23 and 5.2.32) but the quoted text does not contain any reference to the centumviral court. The title of another sole book by Paul de septemviralibus iudiciis cited at D 5.2.7, 5.2.28 and 5.2.31 has been commonly taken since at least the time of Haloander (1501-1531) to be an error for a work de centumviralibus iudiciis.

One sues for an unduteous will on this basis (hoc colore), that they were not in their right mind when they ordained their will. And note that it is said not that the testator was really mad or out of his mind but that the will was made properly, but not with regard to propriety.

Marcellus (D 5.2.5) adds:

The force of the words “concerning undutifulness”, as I see it, refer to unmerited and therefore unworthy passing over or even suppression by disinherison: and the basis [color] of the claim before the judge is that it seems that he was as if not in his right mind, when he made so unjust a will.^[247]

Both jurists use an uncharacteristic word color which I have loosely trans­lated “basis”. Color is a rhetorical term; indeed whole sections of the tradi­tional handbooks on oratory are devoted to exploring its role in a speech. It is closely tied to the notion of pleading in common law terminology. In the traditional common law allegations in pleadings do not have to be proved and it was commonplace to allege wholly formal matters against the defendant which no one professionally involved in the process took seriously. A classic example is the English common law's allegation that a wrong was committed with force of arms, to wit, with sticks and bows and arrows, against the King's Peace, when all that was involved was, say, cattle depasturing a meadow against right. In the hands of pleaders color did not have any but the most formal and trivial of consequences. In the hands of a barrister addressing a jury or an orator a centumviral court, it might be quite other. The lawyer knows it is a fiction, the lay judge may not.

A peculiarity of the querela was that, although success had the effect of overturning the will and allowing the plaintiff in for his intestate share, it only had that effect as against those heirs who were successfully sued. If a brother, unjustly excluded, brought separate actions against each of his two brothers, both instituted heirs in equal portions, and won against the first but lost against the second then, as against the first he obtained his intestate share of up to one third of the whole estate and, as against the second, nothing.

Curianus therefore hoped to gain, as against the heirs he chose to sue, his full share of the inheritance. As against Pliny, however, he had earlier deter­mined not to sue and was now time-barred. Pliny's share of the estate was therefore secure, irrespective of the decision of the centumviral court in the other cases - even if, that is, they were persuaded to find for Curianus on the basis that his mother's decision to exclude him was unduteous.

Pliny persuades Curianus to compromise by the following two arguments. First, he suggests, even if his mother had nominated him her heir in her will she would have charged him as heir with many legacies - by implication in favour of those individuals who were eventually instituted heirs in Curianus' place. But, of course, if the amount of these legacies had been excessive then Curianus could, as heir, have invoked the lex Falcidia to guarantee himself a quarter of the whole. By the terms of the lex Falcidia of 40 BC legacies which exceeded in total three-quarters of the estate were to be reduced pro rata so as to give the heir a quarter: the motivation was to prevent non-family heirs deciding to refuse the estate, thereby precipitating an intestacy, if they could not be assured of a substantial share.

Pliny suggests that the heirs who are being sued will compromise by each handing over to Curianus a quarter of what they have obtained. It is a genuine compromise for if Curianus persists in suing he may gain more - indeed four times as much. But on the other hand if he loses he loses all. This minimalist offer would not perhaps by itself prevent Curianus from continuing to sue. Pliny therefore clinches the matter by offering to hand over from his own share the quarter which, on his hypothesis, he would have lost if he were only to have been a legatee in a will in which Curianus had been made heir.

I.