Judicial service: honor or duty?

For citizens of Rome, it was one's duty to be willing to serve as a judge.¹⁴⁸ As with many features of Rome's governmental system, however, the expansion of Rome into an empire greatly increased the demands on both the system and those who were expected to participate in it.

How did the Roman judge view his participation? Did he come to the courtroom with dragging feet, resentful of the days that would be lost to the case, or did he eagerly undertake the task, happy to contribute to the good government of the state? The above discussions have shown that judges came to the courtroom by various methods of selection and could find themselves serving alone or on a panel. The method of appointment for a panel of judges, involving reiectio, hardly made a man's selection particularly honorable and he was merely one of a large group within the courtroom. On the other hand, the selection process of the unus index brought more honor with appointment because a judge was singled out by the litigants and asked to hear the case. In addition, as the only judge in the courtroom, he received all the attention accorded to the role.¹⁴⁹ Furthermore, as we have seen, judges were very diverse in background, education, and status. All of these factors greatly affected how a judge viewed his participation.

More than any who served on the decuries, the senators likely viewed their participation as a duty. The strongest supporting evidence for this statement is that in all the inscriptions commemorating the achievements of individual senators, there is not a single mention that any one of them participated in the decuries. This service was apparently not seen as helpful to one's career, and in Pliny's letters we learn of the praetor Nepos fining a senator for not appearing in court.

Among the equestrians, service on the decuries was viewed in different ways. Those of old money, Italian background, and an active career likely viewed service in the same light as the senators, a duty to be avoided if possi­ble. During the Julio-Claudian period the number of official state positions open to equestrians was constantly increasing, which meant more could plead an excuse and avoid serving.

The men in these two groups, senators and equestrians of old family and great political ambitions, saw little to be gained and much to be lost from ser­vice in the decuries. If they did not have the ius trium liberorum and happened to have a year in their active career when they were not busy with some magistracy or post, they could find themselves stuck, with no excuse, among the selecti, and the year they had thought might be a bit of a break allowing for some travel to family estates away from Rome suddenly would have been restricted by con­stant duty to the courts. Even the opportunities to forge any useful political or even social connections were limited, since unless a man turned to illegal meth­ods he would often be lost within the mass of a panel of judges.

The situation was slightly different for equestrians of old money and Italian background who were not actively seeking a political career. We must recognize that there surely were equestrians who did not have the tools (whether the family name or the necessary abilities, or both) to make a career for themselves, as well as others who, while able, chose not to pursue a career.¹⁵¹ There also might have been some equestrians who were in their fifties or sixties and had finished their active careers but still wanted to be involved in some public role.

Men from Italy and the provinces who were newly made equestrians or met the financial criteria of the ducenarii saw far more honor in serving on the decuries. Only recently had the ducenarii and provincials gained admis­sion to this role and they proudly listed their inclusion within commemorative inscriptions. There were also men who were anxious to be on the album, which suggests they saw it as an honorable role.¹⁵² Suetonius, for example, recounts that Livia repeatedly asked Tiberius to place a certain new citizen on the list.¹⁵³ The man whom Claudius removed for not being able to speak Latin is described as “splendidum virum Graeciaeque provinciae principem, verum Latini sermonis ignarum”, “an illustrious man, a leading citi­zen of the Greek province, but at the same time ignorant of the Latin language”.¹⁵⁴ He was likely of equestrian standing and although he did not speak Latin accepted the position presumably because of the value attached to the role.¹⁵⁵ And we hear of a man who had three children but did not apply for the exemption, continuing instead to serve.¹⁵⁶ This man found pleasure in his role either due to the honor attached to it or because of the opportunity it gave him to participate.

That the emperor was involved in selecting some members imbued the role with further honor — the direct approval of the emperor. This could take two forms. Inclusion within the selecti was a result of the emperor's approval, since the emperor examined the senators and equestrians. Ovid, when dis­cussing his service to the state and his abilities as an impartial judge, specifically draws attention to the fact that he underwent an equestrian exam­ination and won Augustus' approval.¹⁵⁷ The honor of such endorsement was not lost on the general public either.

For those politicians in Rome or at a municipal level who saw inclusion on the decuries as an honor, the nature of that honor was very much connected to when his enrolment occurred in the course of his career. For those newer equestrians actively working on their careers, especially those adlected into the decuries, inclusion on the album was a step from which they could propel themselves to higher offices if they had the skill and ambition.¹⁶⁰ For the duce­narii, as well, service on the decuries could lead to becoming an equestrian and attaining further offices.¹⁶¹ For members of the municipal elite who are found in the decuries, appointment came often at the pinnacle of their careers and appears to have been their crowning achievement.¹⁶² The decuries in this way served as a method by which imperial Rome could continue the Romanization of notable locals.¹⁶³ Service on the decuries, therefore, carried disparate meanings and provided very different opportunities for individuals who came from vastly dissimilar backgrounds and social standing.

For a unus iudex, the honor associated with the role also varied. It was clearly a great honor to be appointed by the emperor to hear criminal or civil cases as a single judge. Although such men, like Julius Servianus, were already closely connected to the emperor, to be a delegate of his judicial authority must have given them a still greater sense of pride and increased auctoritas. It appears that representing a magistrate as a single judge did not hold as much honor; beyond acknowledging that he was chosen to judge by the consuls, Gellius adds nothing more.¹⁶⁴ It is possible that by his day, the judicial workloads of some magistrates like the consul were such that many men were undertaking this function, thereby devaluing the honor derived from such service. Gellius gives little hint that his appointment as a single judge was an honor, apart from mentioning the selection process (rather than simply saying, “When I was judging a case...”).¹⁶⁵

For single judges who were chosen by the litigants, the greatest honor came from the request itself. The best judge, in the mind of the two disputing par­ties, was the “good man” — someone believed by the parties to be honorable, knowledgeable, and fair. By choosing a specific man the litigants were publicly advertising their belief that this individual met these criteria. His verdict also could affect the honor of his role; Quintilian advises the advocate to remind a judge of the glory to be won by his clemency.¹⁶⁶ Hardly a new idea to the Roman mind, Augustan propaganda made much of clementia, and Quintilian’s belief that such a comment would warrant a reaction from a judge suggests that judges did consider the effect of the verdict on their own reputation.

The element of publicity warrants further comment. The public nature of Rome’s courts and the impact such a location could have on the reputation of a single judge (and even upon those on a panel, though to a lesser degree) must not be forgotten.

While I have made the argument that for many judges service brought much honor but for others it was seen as more of a duty, another more practi­cal factor must be considered — the amount of time that would be taken up with cases if one was placed among the selecti.

I suggested above that the emperor and praetors attempted to keep the number of selecti to the minimum required to meet the demands of the courts as projected from year to year. If that argument is accepted, then it follows that those serving would be in almost constant demand. The specific number required could vary slightly, of course, if it was a particularly busy year for the courts. However, the available evidence is consistent in suggesting that the number of cases was ever increasing as the empire continued to grow and develop.¹⁶⁷ The addition of decuries certainly suggests the system was strained and needed expansion; Augustus added a fourth and also lowered the minimum age.¹⁶⁸ By the time Gaius reviewed the decuries, after Tiberius' inaction, he saw the need to add the fifth decury to “levior labor iudicantibus”, “lighten the workload of those judging”.¹⁶⁹ The pressure continued, however, and the overworked judges petitioned Galba to add another, only to be disap­pointed.¹⁷⁰

Their complaints stand in opposition to the argument made by some scholars that the quaestiones perpetuae began to fall into disuse within the first century because of the creation of new courts, namely the senate, the emperor and his delegates, thepraefectus urbi, and still later that of thepraefectuspraeto- rio, all of whom heard cases that earlier would have gone to the quaestiones perpetuae.¹⁷¹ This argument cannot stand in light of the above evidence of the pressures felt by judges during this period, the continued identification of iudices of all types in the inscriptional evidence into the early third century, and the comments of men such as Quintilian about arguing cases before such groups of judges. The creation of the new courts likely altered the face of the cases coming before the quaestiones perpetuae but did not in fact decrease their numbers. It certainly cannot be denied that literary evidence shows the cases of senators and others of great wealth were sent more often to the court of the senate or the emperor, and rarely mentions the standing courts.¹⁷² However, it is also clear that the amount of legal business coming to Rome as the empire became ever more Romanized was constantly increasing. The newly created courts then should be seen not as replacements for the standing courts but as additions, and while cases of certain types, such as those involving maiestas or individuals of high-standing, were diverted to these courts, the empty berths on the docket were quickly filled with the cases of a growing population. So it is likely that in the first century the status of the average litigants in the quaestiones perpetuae dropped slightly, since those of higher status were pulled to the new courts and the number of cases from outside Rome and Italy had increased. Even with the removal of some types of cases from the quaestiones perpetuae there were no doubt still quite enough to keep judges of the first and second century busy. Appointments to the quaestiones, found in the epigraph­ical evidence, suggest that these courts continued to play some role (though perhaps progressively less and less) until at least the reign of Commodus.¹⁷³

Judges did receive holidays, though inevitably there arose the problem of balancing time off against the constant pressure of incoming disputes. Augustus, after adding the fourth decury, established a rotating exemption from service for one decury each year. He also added two months to the annual holidays of the courts already in place. Between the reigns of Augustus and Galba these annual holidays fluctuated between two and three months.¹⁷⁴ A large number of festival days dotting the entire calendar also entailed the closing of most courts. Thus, an equestrian who could not claim an excuse and who was of such moral fibre that he would always be chosen as one of the selecti could serve three years of every four, and during those three years he would get between two and three months off, as well as several additional weeks off for festivals, if the individual days were added together. The com­plaints for the addition of more decuries suggest that many of those serving felt this workload was too steady.

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Some judges clearly did not find the honor of judging a case adequate recom­pense and instead sought a more tangible benefit: payment through bribery.¹⁷⁵ According to the law all judges were forbidden from accepting payment of any kind.¹⁷⁶ Yet evidence points to single judges, members of the decuries, and even judges in the rarely mentioned centumviral court accept­ing bribes.¹⁷⁷ Quintilian suggests that threatening judges with a charge of bribery is guaranteed to cast fear into them, saying that this is an effective method with a panel of judges since it pleases the honest and curbs the dis- honest.¹⁷⁸ However, he recommends that this method be used only as a last resort before the single judge. Although he explains no further, it is clear that by making such a threat an advocate would suffer the most if the judge was in fact honest and took offence, whereas there was nothing left to endure from a corrupt judge who had already decided to rule against the advocate. Quintilian’s comments show just how rampant bribery must have been.

Although some bribes are more specifically mentioned, we cannot deter­mine who initiated the corruption — litigant or judge. We hear on one occasion of a judge who refused bribes — clearly he was not seeking them.¹⁷⁹ On the other hand, Ovid mentions a judge from the decuries who appar­ently was actively advertising his willingness to negotiate his decision.¹⁸⁰ Ovid identifies the judge as one of the selecti and we can assume, based on our earlier conclusions concerning the terminology, that Ovid here describes a judge who, having been chosen for a specific case, is now mak­ing clear his willingness to be bought, and in a remarkably brazen fashion.

Various emperors made occasional efforts to stem the tide of corruption. Tiberius sat in various courts at random times, and if there were rumours of bribery playing a role in the decision of a particular court he would appear and lecture the judges on their duty.¹⁸¹ Domitian also took steps, going so far as to rescind verdicts of the centumviral court that were affected by bribery and resorting to placing a mark in the censor's book to indicate those single judges who had accepted bribes as well as those who had served as their asses- sors.¹⁸² It is unclear if the assessors accepted money too, but it appears Domitian suspected that they were at least aware of the agreement. Attempts were made to provide checks, but the clandestine nature of bribery made pun­ishment very difficult. The expansion of the cognitio extra ordinem procedure, which gave individual judges far more leeway in reaching a decision, may in fact have made the practice even more frequent; the formulary procedure lim­ited a judge to the confines of the facts of the case, and while there was some flexibility within those boundaries, in clear-cut cases he would be far more hard-pressed to explain his decision if it went against the evidence.