INTRODUCTION

In 1999, under the editorship of Bettina Bergmann and Christine Kondoleon, a collection of articles was published as The Art of Ancient Spectacle) Within its pages unfolds stimulating discussion of such topics as vase painting, architec­ture, the Roman triumph, and the Roman funeral, to name only a few.

Examination of the courtroom, however, sheds light on a broader section of Roman society than just the aristocracy and those seeking public office. Juvenal tells his audience that if they wish to know the truth of mankind's morals, the place to go is the court of thepraefectus urbi, where all that is rarely seen lies exposed to view.³ The courtroom of Rome provides a window through which social historians can better understand people of diverse social status and their interactions.

The main aim of my study is to investigate the physical environment of and participants in the courtrooms of Rome between approximately 31 BC and AD 166. A conscious barrier has been constructed by choosing the year of Octavian's defeat of Antony as the terminus post quem, which thereby excludes Ciceronian period evidence. Typically, scholars who study issues connected with the courts, including such topics as rhetoric and gestures, appear com­fortable with drawing inferences about first- or second-century AD Rome using evidence found in Cicero's speeches.

This study also focuses solely on the courts located within the city of Rome; thus, only evidence that places an event, person, or court specifically within Rome is considered. Beyond Rome, in both Italy and the provinces, local customs no doubt influenced the nature of the courtroom. To construct a picture of the specifically Roman courtroom, the focus must be limited in this way.

Study of the Roman courtroom, and of the interaction between the partici­pants within it, first necessitates examination of the physical environment. We cannot determine the impact of the courts on the public spaces of Rome and its inhabitants if we have no sense of the visibility and ubiquity of the courts within the topography of the city. Nor can we assess the importance of a loud voice for an advocate if we have no concept of how far he was from the judge(s) and audience, or how noisy was the environment in which he spoke. And we cannot appreciate how critical it was for a litigant to be present at the hearing of his case if we do not understand the highly visible location he occupied within the courtroom. Thus, the first part of this study attempts to set the scene in which our actors — the litigant, judge, audience, and advocate — performed.

In reconstructing the environment of the courtroom, I have cast my net wide to capture any evidence that archaeology, inscriptions, and literature can provide. This approach proves especially fruitful for establishing the location and shape of the courtroom as well as the arrangement of those attending. Archaeological studies of the fora, along with topographical studies, numis­matic evidence of public platforms, and descriptions in literary sources of the courtroom space and activities, combine to yield rewarding results.

Literary sources provide most of our independent information concerning the various participants. The diversity of the sources, in both date and genre, complicates the task of forming a comprehensive picture of these people. At the same time, that very diversity results in a more nuanced picture, since it enables us on far more occasions to weigh against each other the probative value of pieces of evidence, from similar as well as disparate sources. This study further benefits from the fact that many of the literary sources used, excepting Cassius Dio, were written during the period under examination. Hence, these works are useful not only for the valuable facts they contain, but also for the authors' broader understanding as members of the community in which they wrote. Many of the works used for this study were written by men who had stood as advocates in the very courts we are examining. Thus, in dis­cussions of the courtroom they are able to draw on their own personal knowledge and experiences to provide more accurate and (one expects) realis­tic accounts. Some of the literary sources used for this study warrant brief introduction and special comment.

Seneca the Elder

Born in Spain, Seneca the Elder most likely studied rhetoric in Rome, to which he came some time after 36 BC. He remained there until approximately 8 BC, when he returned to Spain. Following the birth of his three sons, Annaeus Novatus, Seneca the Younger, and Annaeus Mela, by AD 5 he had returned to Rome, where he was still known to have been in 33. Soon after Tiberius' demise in 37, Seneca composed the Controversiae, in response to his sons' request that he give them his opinion on declaimers who had been his contemporaries and gather together those of their sayings he could still remember.⁴ Of the ten books, five survive almost intact, as well as the prefaces of two others.

Declamation was a method used in schools of rhetoric to teach public speaking, and employed two types of artificially staged speeches: controversiae and suasoriae.

Each book of the Controversiae of Seneca the Elder contains a preface fol­lowed by six to nine hypothetical cases. Each controversia in turn consists of the same order of elements. First, Seneca states the law central to the case, fol­lowed by a brief description of the case's theme. Next, he records portions of various speakers' speeches (first those for one side, then those for the other) when they spoke on this controversia. Seneca's primary purpose is to document particularly clever statements, especially epigrams, in which his sons were particularly interested. Following this section, Seneca provides each declaimer's “divisions”, the statements that set out the main points on which the speech would be built. Seneca often writes this section in his own person, reporting who took up which angle, who concurred, and who took a different approach. In the final section he lays out a selection of the declaimers' various colores, their “colours” or lines of argument for the case.

Seneca's direct comments about advocates' workloads, real cases, judges, the audience, even descriptions of the courtroom environment, as well as his record of statements that advocates made either in court or to other advocates, provide invaluable information.⁷ The other portions of the Controversiae, espe­cially the laws and themes, are of lesser value to this study, though certainly Bonner and Crook are correct to argue for their origins in reality and general usefulness to historians.⁸

Quintilian

The Institutio Oratoria, composed by Quintilian and published before the summer of AD 95, presents a manual for training the perfect orator, beginning with the prescribed curriculum to be covered in his education, followed by discussion of the various parts of a speech, and closing with extensive discus­sion of the more practical side of oratory, including such matters as how to utilize gestures within a speech and how to move the emotions of the judge and audience.⁹ This work constitutes an entirely different and unique genre from other literary sources.

Quintilian was amply qualified to author such a handbook. His father was trained, and apparently quite skilled, in rhetoric; no doubt he directed Quintilian’s early education. When Quintilian arrived in Rome is unknown, but he came into contact and perhaps trained with Domitius Afer in the lat­ter’s declining years, a man whom Tacitus describes as an advocate of great talents.¹⁰ At some point during his early reign Vespasian created a chair in Latin rhetoric, with a salary supplied by the fiscus, which Quintilian likely occupied.¹¹ Pliny the Younger and the grand-nephews and heirs of Domitian were among his students.¹² He continued in this post for the next twenty years, during which time he also remained active in the courts.¹³

We know of three specific cases Quintilian undertook during his career. Queen Berenice, daughter of Agrippa I ofJudaea, employed his forensic services in a case concerning an unknown matter. Most likely this hearing took place when Berenice was in Rome; her visit has been tentatively placed between 75 and 79.¹⁴ Quintilian represented Naevius of Arpinum, accused of murdering his wife. The date of the trial is unknown, but Quintilian tells us that his speech was published, which suggests he was successful in defending his client.¹⁵ He also undertook a case concerning the forging of a will.¹⁶ In this case his client was a woman and he secured her acquittal; again, no date can be assigned. It is clear from these few cases that Quintilian maintained an active forensic career during the same years that he taught. Persons of such importance as Queen Berenice, or those fighting accusations of murder and forgery, certainly would not have engaged a rhetorician whose skills were rusty from infrequent use.

Quintilian often refers in the Institutio Oratoria to how he and other advo­cates presented their cases within the courts, how they varied in style or practice, what worked, and what did not.

Tacitus

Three works of Tacitus, the Dialogus, Historiae, and Annales, have proved par­ticularly useful. The Dialogus, the third of his minor works, records a discussion concerning the changing face of oratory; the interlocutors are two leading advocates of the day, Marcus Aper and Julius Secundus, as well as Curiatius Maternus, also an active advocate, and Vipstanus Messalla, the half­brother of Aquilius Regulus (the rogue advocate often mentioned by Pliny the Younger).²¹ Tacitus, at the time a young man training for the bar (the dis­cussion likely took place between AD 73 and 75), states in his setting of the scene that he was currently spending time with Aper and Secundus, listening to them in both the courts and their private conversations.²² Success in advo­cacy came quickly for Tacitus. Pliny, at most ten years his junior, states that he was still a young man when Tacitus was already earning “fame and glory” in the courts.²³ In 99 he joined Pliny in the prosecution of Marius Priscus, the ex-governor of Africa, for repetundae, the maladministration of his province. The fact that these types of cases carried heavy penalties with them, and that the senate chose Tacitus and Pliny to represent the provincials, suggests that his oratorical success continued during the intervening decades.²⁴ While we are accustomed to thinking of Pliny as an advocate, and Pliny perhaps down­plays Tacitus' involvement in the Priscus case, we must not be blinded by the brilliance of the Annales to the fact that Tacitus equalled, if not surpassed, Pliny in forensic skill and frequency of participation in the courts. The deft­ness with which Tacitus controls the presentation of information to the reader of the Annales is surely a mark of a skilled litigator.

While in the Historiae and Annales Tacitus mentions surprisingly few cases that took place outside of the emperor's or senate's court, these works are crit­ical to the examination of men Tacitus identifies as delatores, men who increased their wealth by attacking others through real or trumped-up charges. Of course, Tacitus' agenda, most clearly displayed in the Annales, fur­ther complicates matters as discussion of possible legal action is presented in a mixture of politics and legalities. A separate study of Tacitus' methods of recounting cases would be welcome.

Horace, Martial, and Juvenal

The satirical writings of Horace (published between 35 and approximately 15 BC), Martial (published between approximately AD 86 and 105) and Juvenal (published in the 120s or 130s) are of a genre far different from the works of Tacitus, Seneca the Elder, and Quintilian and present the courts from yet another perspective, one that frequently includes exasperation and frustration — with the legal system, advocacy as a profession, or advocates who prey on victims of crime. We hear of judges who take bribes, defendants who deny taking a loan, courts that move so slowly that it takes ages for a case to come up, or that favor litigants of certain social standing.²⁵ On more practical mat­ters, the satires include such information as the hours of the day during which the courts were open, which months of the year the courts met, and how loud audiences became during hearings.²⁶ Perhaps even more importantly, these works provide a glimpse of non-aristocratic advocates in contrast to the focus of the majority of extant literary sources — advocates who made a living hang­ing around the courts hoping to pick up clients, or who had trouble making ends meet and had to supplement their earnings with other jobs.²⁷

There is some concern among scholars as to whether satirical writings are viable as sources for historical studies such as this. Indeed, care must be taken, but this does not mean that the only available option is to discard the whole genre as exaggerated beyond worth. Satire finds its strength, and its bite, in real situations, beliefs, and stereotypes. Certainly, satirists throw reality into high relief but, as Braund suggests, satire must answer, at its root, to the desires and anxieties of the audience;²⁸ it must be grounded in reality to be believable, humorous, and mordant. The problem, then, is determining at what point the contents of a satire move from a real situation to fanciful hyperbole. To a certain extent, each statement of a satire must be weighed individually to determine its usefulness to historians. Overall, though, it is possible to categorize the information in gradations of realism. The following are samples of each gradation, as a limited demonstration of how information found within the satirists has been used for this study.

Information that can be most trusted as accurately reflecting the reality of imperial Rome is found in what is peripheral to the point of the satire. Horace, in describing his undesired run-in with a man on the Via Sacra who was expected in court, gives the hour of his walk.²⁹ Incidental to describing the men women love, Juvenal mentions that in winter the theaters are closed and only the courts are still meeting.³⁰ Both authors also provide, through the mere use of adjectives, evidence for the noisiness of the courtroom.³¹

Then there is information central to the satire, but for which truthfulness is a necessity in order to set up the humorous point. Juvenal in one passage compares the volume of people's spoken prayers to the volume of the applause provided by an advocate's hired claque?² The comparison loses all value if advocates did not hire people to provide applause. Juvenal's attack against the advocate who argues dressed in chiffon during July must also contain some truth.³³ If no such person were ever to be found in the courts, such a diatribe would hardly entertain.

The accuracy of personal names found in the writings of the satirists is much debated.³⁴ I have not attempted to match individuals specifically named within the satires with information found elsewhere. Some well- known advocates do appear by name, and that information has been used as evidence of the type of fame and celebrity that an advocate could acquire in Rome. Quintilian, Regulus, and Pliny all receive mention — unsurprisingly positive.³⁵ In other instances, where a name may or may not be historical, valuable information about advocates and the courts as a whole may still be gleaned from the satires.

Finally, in some passages it seems impossible that a particular piece of information could be accurate and instead must be an exaggeration. It is tempting, since the information falls beyond what we deem likely, to con­clude that it is fictional. Yet dealing with a different culture and lifestyle necessitates that we draw conclusions only when possessing clear evidence. Unfortunately, with the satires such conclusive proof is often lacking. Martial's epigram in which he talks of bringing a case involving nanny-goats is suspect.³⁶ Martial went to court over nanny-goats? Surely not. However, cases over minor matters are not unrealistic, as small claims courts of our own day confirm. The best solid information we can draw from this epigram is that Roman courts sometimes dealt with petty issues and advocates could, unsurprisingly, wax eloquent in trivial cases as well as great. In his thirteenth satire, Juvenal mentions that the praefectus urbi heard cases “a lucifero donec lux occidat” — from dawn until dusk.³⁷ We use this same saying today. Often, how­ever, we do not mean it literally, but instead are implying that the event went on for a very long time. It is possible Juvenal uses the phrase in the same way. At the same time, as Talbert's research on the duration of the senate's session reveals, Roman officials were known to work very long hours on occasion, so long, in fact, that at some points of the year dawn to dusk would have been an apt description.³⁸ Again, we must resist hasty conclusions simply because the information is found within satire.

By way of summation and illustration let us consider one of Martial's longer epigrams. While it does not have a hostile or critical slant (thereby making interpretation even more difficult), it contains several gradations of realism.

Octobres age sentiat Kalendas facundi pia Roma Restituti: Linguis omnibus et favete votis; natalem colimus, tacete lites. absit cereus aridi clientis, et vani triplices brevesque mappae expectent gelidi iocos Decembris. certent muneribus beatiores: Agrippae tumidus negotiator Cadmi municipes ferat lacernas; pugnorum reus ebriaeque noctis cenatoria mittat advocato; infamata virum puella vicit, veros sardonychas, sed ipsa tradat; mirator veterum senex avorum donet Phidiaci toreuma caeli; venator leporem, colonus haedum, piscator ferat aequorum rapinas. si mittit sua quisque, quid poetam missurum tibi, Restitute, credis? 20

10

15

Come, let dutiful Rome acknowledge the first of October of eloquent Restitutus: honor [the occasion] with all your tongues and vows; we are honoring a birthday, let the lawsuits be silent. Let the wax taper of the shrivelled client be absent, and the empty three-leaved tablets and small napkins wait for the jesting of frosty December. Let the richer people compete with their gifts. Let Agrippa's pompous businessman bring cloaks, fellow townspeople of Cadmus. Let the defendant charged with brawling and a drunken night send dinner suits for his advocate. Has a defamed young woman won her case against her husband? Let her hand over genuine sardonyxes, but in person. Let the old admirer of our ancient ancestors give embossed work of Phidias' chisel. Let the hunter bring a hare, the farmer a kid, the fisherman the plunder of the seas. If each one sends their appropriate gift, what do you think a poet will send you, Restitutus?³⁹

October the first appears to have been the birthday of Restitutus. He can be matched with an advocate of Martial's day, the able Claudius Restitutus men­tioned in Pliny's letter.⁴⁰ The tone of this epigram suggests that Martial has a connection to Restitutus. While difficult to prove, it is possible that Martial, like the others mentioned in the epigram, had benefited from Restitutus' forensic abilities. Even though in lines 9 through 16 it is unlikely that Martial had specific clients of Restitutus in mind, the section tells us a great deal about Restitutus' practice. First, Martial assumes Restitutus represented women on occasion. Second, Martial suggests Restitutus had a diverse case­load, including assault and adultery. It is tempting to group lines 17 and 18 with the eight preceding lines and conclude that Restitutus' clients varied greatly in status, from those offering sardonyxes to a farmer paying in kind. However, these lines most likely are hyperbolic; the satirist, after listing the realistic, takes the description beyond reality and includes examples that say to the reader indirectly, “Let each person bring whatever is suitable to his or her own position and station,” thus providing a slight laugh for the reader. If taken this way, Martial is not suggesting that Restitutus has farmers as clients. Such an interpretation aids nicely in understanding the final two lines, as we already know what sort of present a satirist should give — the epigram itself. Thus, the final two lines bring the reader back to reality.

These authors' works, although not the only ones of value for this study, con­stitute the main corpus of sources and reveal the inevitable complications. Pliny the Younger has not been included in this source group because I have used his letters only as they serve broadly to elucidate the Roman courtroom and its participants, not as a case study of one advocate within Rome. Pliny's role as an advocate warrants detailed examination, and his collection of let­ters guarantees promising results. However, to give proper attention to Pliny the advocate as a case study requires a level of specificity beyond the scope of this book.

Even this brief discussion of the literary sources indicates why the advocate receives two chapters; we must follow where the evidence leads. Information concerning the audience, the litigant, and to a certain degree the judge must be gleaned from sources in which they are peripheral. No ancient texts take as their focus any of these participants; rather, the advocate is often the focus and the other participants are discussed in terms of their importance to or interac­tion with him.⁴¹

Some general cautionary remarks are thus warranted concerning the sources available to us. By its nature, historical writing records much more about sensational cases than about those that filled the bulk of the courts' cal­endar. Pliny's letters require particular care since he focuses on his successes rather than his failures, his special occasions rather than his daily work. Furthermore, here was a man of the highest social and political echelon recording cases in which he participated or had a vested interest. The typical case is not to be found within his letters.

Also, it must be remembered that much litigation was repetitive with respect to both the nature of the dispute and the involvement of the advocates and others. While such cases gave the advocate room to use the full range of his training, they did not stand out as unique or unusual and thus hardly war­ranted mention by the likes of Quintilian or Pliny. However, although extant sources are dominated by the specific cases of only the rich and famous, those caught up in trials for murder and suing for their inheritance, this does not mean that the courts were a predominantly upper-class phenomenon. Our sources, by their very nature, do not provide a representative view of all liti­gation in Rome; they ignore the mass of litigation, the mundane cases of daily life, and focus to a great extent on what was unique and sensational.

* * *

While this study acknowledges the differences to be found between the indi­vidual courts of Rome (private, public, imperial, senatorial), there is value in taking a broader approach that examines what participants faced generally in a courtroom rather than looking specifically at each court. Such specificity is, in fact, unattainable in some instances since for many courts we know noth­ing more detailed than that they existed. Furthermore, statements are often made, particularly in Quintilian’s writing, but also in Tacitus' Dialogus and Pliny’s letters, that do not distinguish between specific courts but rather sug­gest that many aspects of the courtroom were the same in diverse courts.

I have exercised caution in this regard, and assume that when Roman authors of the first century AD discussed “the courts” they did not include the senate. I thus have not included detailed consideration of the senatorial court. The senatorial court environment was unique in many ways: the audience was less socially diverse and of a far different educational level from those who attended public trials; political and power strategies permeated every element to the point that it is often difficult to ascertain whether an event was a legal hearing per se or a political debate. This latter difficulty is especially apparent when one attempts to identify cases recorded in Tacitus’ Annales. The multi­faceted nature of the senate’s judicial activities, the interweaving of political arena, legal court, and imperial advisory committee, is most interesting and certainly warrants a separate study.⁴²

A few remarks on terminology are also in order. This study considers par­ticipants in all courts found within Rome, both those that dealt with private (civil) disputes and those that handled public (criminal) wrongdoings. While many of Rome’s courts dealt with only one or the other type, several courts (for example, the praetors and the emperor) could address either. The nature of the evidence for this study renders it neither practical nor helpful to divide the discussion along the lines of private and public jurisdictions. To discuss these courts together, however, requires careful use of terms as well as some adaptation, since modern legal terminology assigns specific terms to the participants. The term “litigant”, which in modern law tends to refer to the parties to a private dispute, is used more broadly to refer to all people entering into litigation, be they the plaintiff or defendant in a pri­vate dispute or the accuser or defendant in a public trial. To describe this litigant the pronoun “he” will be used for convenience, even though (as will be discussed in Chapter Three) it is certain that women were actively involved in the courts as litigants. “Judge” is used to refer to anyone approached by two litigants to provide a legal ruling. Thus, broadly speak­ing, all magistrates who exercise jurisdiction, the emperor, as well as the single judge (unus iudex) fall within this category. Where more specificity is possible, the particular terms will be used. Those individuals who served on the panels in the quaestiones perpetuae, whom modern scholars often call “jurors”, will be referred to as “judges”, following the ancient authors’ ter­minology. The reason for this deviation from the common practice is that those who were eligible for service on a panel could also be called upon to serve as single judges. Regarding the unus iudex, I make no differentiation between the unus iudex and the arbiter. It has been suggested that the two terms reflect an early republican differentiation that by the late Republic had become very slight. The ways in which the ancient sources of the late republican and the early imperial period use these two terms sometimes suggest they are interchangeable, while at other times they do not, an issue that cannot be addressed in this study.⁴³

For the legal event when a judge hears the evidence provided by the liti­gants and renders an opinion, many terms exist but most carry with them a modern connection to either public or private law. The word “trial” is strongly linked with public courts, just as “dispute” or “suit” is with private courts. Some adaptation has therefore been necessary. Where the discussion deals with a clearly public or private event, the standard term is used. When events that are both private and public are discussed together, or which for lack of evidence cannot be determined to be private or public, the advocates’ vocabulary is adopted — the advocate undertook “cases” that could be private or public, and so that term will be used.

* * *

This reconstruction of the Roman courtroom fills a surprising gap within the modern scholarship. Modern historians certainly acknowledge the impor­tance of the courts, and their role in politics and society as a whole. The jurisdictions and procedures of specific Roman courts and magistrates, the transference of cases from local jurisdictions within Italy and beyond to Rome, and social aspects of the courts concerning status, access to the courts, and statistics of Roman cases have garnered much attention.⁴⁴ At the same time, scholars examining topographical subjects ranging from the imperial fora to the location of the praetor’s tribunal have also drawn interesting con­clusions of great benefit to this study.⁴⁵ Overall, many scholars have considered issues of relevance to courtroom participants, but have not applied their findings. For example, the interaction of individual identity, public dis­play or performance, and physical space has attracted much interest in recent years.⁴⁶ In addition, some studies have focused more narrowly on aspects of the courtroom participants: the advocate as delator, or the identification of equestrians as judges.⁴⁷ Many of these findings clearly invite further applica­tion to the courtroom, but to date such steps have not been taken.

This study adopts a more holistic approach to the Roman courtroom than has been previously undertaken; indeed, it is the first attempt to consider the courtroom of imperial Rome as a whole. The book opens with an examination of the physical setting of Rome’s courtrooms. This is followed by a recon­struction of the physical arrangement of the participants at a public trial, with specific attention given to the centumviral court’s arrangement within the Basilica Iulia. Next are individual examinations of each of the courtroom participants; within these chapters I consider the identity of group members, their motives for engaging in legal activity, and their participation within the process.

Unlike the modern court system, which is quite remote from most of the populace, the Roman court system involved far more people, particularly in the role of judge; many men served as a praetor during their political careers, and a far higher number of men, not only the well-to-do but those of lesser means, served as a single judge or one of a panel of judges.⁴⁸ In the imperial era, we thus discover a city teeming with courts — courts in which litigants sought justice or revenge, boisterous audiences found entertainment and employment, and nervous advocates struggled to win using all the weapons in their arsenal. We find courts in which out-of-town clients felt the full weight of the Roman yoke, weak litigants staggered under the pressure exerted by a powerful and well-connected opponent, and advocates basked in the glorious applause and anticipated imminent political success. Let us turn, then, and first consider the physical placement of Rome's courts.