Motivation

What motivated individuals to undertake litigation?⁴¹ We must assume that most cases were instigated by one or more individuals believing that they had suffered an injustice, either private or public.

However, within any legal sysВtem, not all who feel wronged take their issue to the courts and, at the same time, some take others to court even when they have not been wronged. Three primary factors inhibited individuals from approaching the courts: time, money, and influence, all of which were closely linked to status. A litigant needed a flexible schedule to be able to take someone to court. This requireВment would not have excluded a large percentage of the population. Even a small shopkeeper no doubt could find someone, perhaps his wife, child, or slave, to manage the store when he spent the day in court over a case of nonВpayment, for example. Individuals such as manual labourers, however, would be hard pressed. And as the nature of the legal dispute becomes more compliВcated than simple non-payment, and demands more than a few hours or a day in court, the ability of litigants of lower status to invest the time diminishes. This time was further extended by the slowness of the courts, as they strugВgled under an ever-increasing number of cases. The situation became so bad on at least a couple of occasions that emperors stepped in to attempt to reduce the backlogs.⁴² Juvenal's telling comment that вЂњlentaque foripugnamus harenaвЂќ, вЂњwe fight leisurely battles in the forumвЂќ reflects the view held by most Romans of his day regarding the speed of litigation.⁴³ In addition, for those beyond the city who were bringing cases to Rome, even more time was needed for travel, a fact which further supports the assumption that typically litigants who brought their own cases to Rome were of slightly higher status on average than litigants who lived in Rome.⁴⁴

Litigation demanded not only time but also money.

The legal system was such that a litigant had to have at least some money to put forward in various circumstances (bail, for example) and a litigant had to be prepared for possiВble financial penalties that could be incurred not only by making wrongful accusations (calumnia) but even by losing a well-intentioned case. A litigant's advocate could be expecting some sort of compensation, and extra money to bribe the judge or panel was a necessity if a litigant had the means for such a tactic. A counter-offer had to be available. The out-of-town litigant who sent a representative rather than going to Rome in person would have to cover the cost of the proxy's travel and expenses.⁴⁵

Finally, another factor a prospective litigant had to consider before going to court was the influence of the potential opposition. There is no doubt that individuals who had a great deal of power and influence were protected from prosecution. How far this protection extended, however, is difficult to disВcern. A case laid out in Seneca's Controversiae provides the best insight into the role influence could play in litigation.⁴⁶ A poor man, believing that his father had been murdered by a rich enemy of the father, continuously followed the man around in public, dressed in mourning. The rich man stood for election, lost and, believing that he had lost because of the effect this poor man was having on his public image, sued the poor man for injury. Why did the poor man not immediately accuse the rich man of murder? The rich man asks the same at one point: вЂњCur me non accusas, nonpostulas?вЂќ, вЂњWhy don't you accuse me, lay charges against me?вЂќ⁴⁷ The poor man's response is telling: вЂњPauper divitem, lugens candidatum ego accusem?вЂќ, вЂњAm I, a poor man, to accuse a rich man, am I, mourning, to accuse a candidate for office?вЂќ⁴⁸ This is not the only occasion when we hear of individuals hesitating to attack the powerful. In one of Martial's epigrams the speaker wishes to initiate lawsuits with three indiВviduals but his advocate refuses two of the cases because of the influence of the opponents.⁴⁹ People went to court if they thought they could win; if the misВcreant was powerful, the number of people who felt they could defeat him was far smaller.

In the days following the death of Domitian, Pliny recounts how everyone was taking personal enemies to court вЂ” as long as the enemies were not too powerful.⁵⁰ These passages clearly show that those who were deemed вЂњinfluentialвЂќ within Roman society were protected by their status from being hauled into court by those of lesser standing. The rich man of Seneca's account believes himself to be suitably armed to withstand any accusations, and we hear of his willingness to spread money around, which we can assume was earmarked for the judge(s). He also does not hesitate to openly threaten his opponent: вЂњQuid ego in te accusatorem non audeam qui occidendum curavi eum qui tantum mecum litigaverat?вЂќ, вЂњWhat would I not dare to do to you if you accuse me? I, who organized the killing of a man who only quarrelled with me?вЂќ⁵¹ And such threats could be backed up with displays of physical might. The rich man not only had money to throw at the problem, he also had numerous clients to accompany him to the court. The appearance of such hangers-on was not just to provide a visually impressive mob of supporters. On at least one occasion such a group physically attacked the advocate of those who were opposing their patron in court.⁵² We can imagine that others who stood in opposition could also find themselves being вЂњdissuadedвЂќ from continuing their case.

We have no way of knowing how much litigation never saw the inside of a courtroom because a lower-status litigant felt he had little or no chance of winning his case. While the case between the rich and poor man is hypothetВical, as are all the cases set out as the subjects of the Controversiae, all are founded in real situations and we must assume that many of the injustices that took place within Rome did so precisely because one party believed the other party had little or no protection.

Those of wealth and influence no doubt felt that their power would disВcourage others from attacking them in court and, even if they did find themselves in court, their means would guarantee their acquittal. The rich man in Seneca's account says as much: вЂњnihil umquam putaret sibi timendum, etiam reoвЂќ, вЂњhe thought that there would never be anything for him to fear, even if he were accusedвЂќ.⁵³ It is also likely that, while the powerful were at times protected by their status, that very status might encourage those who felt more or less on par to initiate a private suit or a public accusation.

Speaking generally of public cases, Ovid remarks that the man most often accused is so because his defeat means gain for the accuser.⁵⁴ In this light, those powerful or rich enough to guarantee that their defeat would bring gain to their opponents were more likely to be attacked. For those with a public reputation built through a political career or the like, any type of case could cause irreparable damage, even if the outcome were exonerating. In some ways, then, the powerful were bigger and better targets than those with little standing or wealth.

We also hear of litigants laying public charges against others not to right an injustice but to hurt the accused by any means possible. In a speech addressing various legal problems, Claudius censures accusers who lay charges and then do not carry through on the case, but instead leave the city on holiВdays. The charged defendant is left suffering the stigma attached to being a defendant вЂ” the true goal of the absentee accuser.⁵⁵ Such a stigma would attach to defendants in both public and private cases, though the publicity no doubt would be far greater in a public case. Litigants also sometimes initiated litigation merely to exact revenge in the courtroom, hoping their advocate would cause injury and insult to their opponent through personal attacks. Some were so desirous of this opportunity to publicly humiliate an enemy that they were even willing to make false claims.⁵⁶

In such circumstances as these, the main goal of the litigation was clearly not a favorable ruling for one party or the other, or a conviction, but to sling dirt and muddy the reputation of one's opponent as much as possible. Quintilian remarks that the best assistance any defendant can have is his own upright character and a blameless past.⁵⁷ As will be shown in greater detail, the advocate's attacks against the opponent were in no way narrowly limited to information relevant to the case at hand, but rather could delve into any corner of the individual's life; the fewer skeletons the advocate could find in his victim's closet the better, from the latter's point of view, though for that matter the attacks did not need to be truthful.

One can see how this aspect of legal argument would encourage many a vengeful person to attempt to attack an enemy in court. But, at the same time, this reality no doubt dissuaded many from entering litigation. While attackers saw the opportunity to malign their enemies in court they had to be aware that their enemies would also get a chance to rebut. Attacking their enemies could then backfire, if they wished to keep their own private matters secure from prying eyes and ears. However, if a litigant had a great deal of influence it appears that he could try to limit the extremes to which the hunt would go. Fronto made a deal with M. Aurelius that when he would speak against Herodes Atticus, a friend of M. Aurelius, he would keep his attack narrowly focused to enable Atticus to maintain his reputation.⁵⁸

Losing a case to someone of lesser status and influence could have a subВstantial effect on one's own status, and thus the impact of court proceedings could extend far beyond the courtroom. An incident involving Augustus is instructive. Having discovered Cinna's plot against him, Augustus had Cinna brought before him and supposedly said:

Male mehercules cum populo Romano agitur, si tibi ad imperandum nihil praeter me obstat. Domum tueri tuam non potes, nuper libertini hominis gratia in privato iudicio superatus es; adeo nihil facilius potes quam contra Caesarem advocare.

By Hercules, the Roman people are in a bad state if nothing except me stands in the way of your taking over as ruler. You cannot guard your own house, not long ago the influence of a freedman defeated you in a private suit; nothing can be easier for you than to take action against Caesar.⁵⁹

Augustus saw the outcome of that private case as an indicator of Cinna's impotency. Losing a case to an opposing party of obviously inferior status must have been particularly damaging to Cinna's standing, a fact which Augustus highlights to indicate Cinna's incompetence.

Since going to court could consume so much time and money and be so damaging to one's status, it is surprising how seldom we hear of people threatening to take others to court unless they are paid off, or initiating litiВgation and then extorting money from the defendant to end the matter.

Horace mentions a man who, when angry, threatened to take his enemies to court but he does not indicate that money was taken instead.⁶⁰ The only perВtinent evidence is about Vitellius, who before he became emperor owed money to a freedman. The freedman persisted in demanding payment until finally Vitellius sued him for iniuria (injury), claiming the freedman had kicked him. The claim was false, but Vitellius would not drop the matter until the freedman paid him 50,000 sesterces.⁶¹ In a society that placed such value on status and public reputation, we must assume that many paid a great deal to keep matters out of the court and away from the public eye. Unfortunately, their success seems almost complete, for we have little corrobВorating evidence.

How eager, then, were people to go to court? There was much to lose: time, money, status. One's lifestyle certainly would have been open to public scrutiny. In addition, so many factors came into play that, even if a case were legally sound, a litigant had limited control over the outcome of a case that could be affected by bribery or one's opponent's influence. Why would anyone ever go to court? Because success was possible. If you were wronged, you could have your вЂњday in courtвЂќ, and even if unsuccessful you at least had the opportunity to inflict some damage upon the public reputation of your oppoВnent and come away feeling that you had exacted some sort of punishment.

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Source: Bablitz L.. Actors and audience in the Roman courtroom. Routledge,2007. вЂ” 290 p.. 2007

Motivation

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