NOTES

INTRODUCTION

Bergmann and Kondoleon (1999).

Other occasions included delivering a speech before the senate, giving a recitation in the less politically charged environment of a public hall, or pronouncing the elogium at a funeral·

Juv.

Sen. Controv. 1.pr.1; Griffin (1972) 6-8, 11.

Sen. Suas. 3.1-7, 6.1-27.

Cicero: Controv. 1.pr.11-12. Other known advocates he quotes in the Controversial, e.g. Albucius Silus (1.1.10, 1.3.4), Porcius Latro (1.1.1, 1.2.1, 1.3.1), Fabius Maximus (2.4.11).

E.g. Sen. Controv. 2.4.11, 2.5.13, 3.pr.5, 3.pr.14, 17, 4.pr.10, 7.pr.6-8, 9.pr.1-5, 9.5.15-16.

Bonner (1949) 84-132; Crook (1995) 163-167.

Russell (2001) 2-3.

Quint. Inst. 12.11.3; Tac. Ann. 14.19; Plin. Ep. 2.14.10.

Suet. Vesp. 18.

Quint. Inst. 4.pr.2', Plin. Ep. 2.14.9.

Mart. 2.90; Juv. 7.186-190.

Levick (1999) 194.

Quint. Inst. 7.2.24.

Quint. Inst. 9.2.73.

Quint. Inst. 6.1.40.

Quint. Inst. 6.2.36.

E.g. Quint. Inst. 4.1.33, 34.

A point which is argued for by Crook (1995) 167-171.

Tac. Dial. 2.1, 3.4, 4.2, 6.4, 13.5, 14; Hist. 3.9, 4.42. Mayer (2001) provides a recent commentary on this text. Pliny on Regulus: e.g. Ep. 1.5, 1.20.14, 2.20, 4.7, 6.2.

Tac. Dial. 2.1.

Plin. Ep. 7.20.4.

Plin. Ep. 2.11.

E.g. Hor. Sat. 1.10.25-26, 2.2.8-9; Mart. 2.13, 7.65; Juv. 3.297-300, 8.127-128, 13.1-4, 135-142.

E.g. Hor. Sat. 1.9.35-42; Mart. 4.8.2, 7.28.7; Juv. 6.67-68, 13.31-33.

E.g. Mart. 1.79, 3.38.1-6, 7.51.1-6, 11-12; Juv. 7.106-149.

Braund (1992) 80.

Hor. Sat. 1.9.35-36.

30 Juv. 6.67.

31 Hor. Sat. 1.4.65-66; Juv. 2.51-52.

32 Juv. 13.31-33.

33 Juv. 2.65-98.

34 Friedlander (1969) 63-68 thinks Juvenal used some fictional names but likely used actual names of those of humble station. Crook (1995) 126 thinks those of humble origin must be accurate. Courtney (1980) 17 does not give a general opinion on the satires as a whole but he states that a number of specific individuals, whom Courtney names, were real.

35 Quintilian: Mart. 2.90; Juv. 6.279; Regulus: Mart. 2.74, 6.38; Pliny: Mart. 10.20.

36 Mart. 6.19.

37 Juv. 13.157-161.

38 Talbert (1984) 189-195.

39 Mart. 10.87.

40 Plin. Ep. 3.9.16.

41 An additional body of helpful evidence exists for the judge, as a collection of approxi­mately 150 inscriptions (though there are difficulties with their interpretation).

42 Talbert's examination of the senatorial court (1984) 460—487 has gone a long way toward setting the senatorial court within its broader context of the senate as a body. Further study would still be fruitful.

43 Cic. Mur. 27; Sen. Ben. 6.6.1-2, Clem. 2.7.3; Plin. Ep. 7.30.2. The lex Irnitana, in ch. 87, 89, 91, and 92, speaks of the “iudex arbiterve', “judge or arbiter”, in several contexts. Modern scholarship: Lemosse (1944) 150-151; Broggini (1957) passim; Kelly (1976) 117-119.

44 Jurisdiction and procedure: e.g. Jones (1960), (1972); Kelly (1976); Peachin (1996). Transference of cases: e.g. Camodeca (1986), (1992), (1996), (1999); Gonzalez (1986); Johnston (1987); Burton (1996); Metzger (1997), (1998), (1998a), (2000a). Social aspects: e.g. Kelly (1966); Garnsey (1970).

45 E.g. Johnson (1927); Richardson (1973); Anderson (1984); Giuliani and Verduchi (1987); David (1995); Carnabuci (1996); Packer (1997).

46 Aldrete (1999) focuses upon the interaction between the emperor and the crowd, Millar (1998) on speaker and assembly. On the role of gender and identity see Gleason (1995); Foxhall and Salmon (1998); Porter (1999); Gunderson (2000); Goldhill (2001).

47 E.g. Rutledge (2001).

48 Rodger (1996) 61.

1 THE LOCATION OF LEGAL ACTIVITIES IN THE CITY OF ROME

1 Velleius Paterculus (2.89.3) and Dio (53.32.2) do not agree on whether this was the occa­sion when Augustus lowered the number from that set by Caesar or the reduction had occurred earlier. See Mommsen (1887) 2.202-203; Rich (1990) 168; Brennan (2000) 390-391. All dates are AD unless otherwise stated.

2 Tac.

3 Dio 58.20.5, 59.20.5, 60.10.3. We have little evidence for the number of praetors follow­ing the Flavian period, and our evidence for that period itself is disappointingly scant. See Mommsen (1887) 2.202-203.

4 The jurisdictions of the praetor urbanus and the praetor peregrinus are very difficult to deter­mine. For recent thorough discussion of the republican evidence see Brennan (2000) 133-135, 461-465. There appear to be two main schools of thought: one sees the two positions separated by nature of dispute (i.e. the praetor urbanus was concerned with dis­putes between citizens, the praetor peregrinus with disputes involving non-citizens); the other suggests that the division of work depended on who was available. See AE 1996, 407; Watson (1974) 64-67, 72-82; Camodeca (1996) 172-173.

Treasury: Dio 53-32.2, 60.10.3; fideicommissa: SHA. Marc. Aure. 10.11; Gai. Inst. 2.278; Dig. 1.2.2.32; Levick (1990) 123; Disputes of private individuals with fiscus·: Dig. 1.2.2.32; Plin. Pan. 36.4.

For an account of the development of these magistrates and courts in the Republic see Greenidge (1901) passim. Crook (1967) 68—97 contains a more economical account of the development during Cicero's and imperial times. Frier (1985) 42—78 offers an interesting examination of the office of the praetor urbanus and accessibility to legal remedies during Cicero's time.

There is uncertainty concerning when the tribunal was moved here from its original loca­tion in the Comitium. The debate rages around the identity of the benefactor of the puteal Libonis portrayed on coins minted sometime between 71 and 54 BC: e.g. rev. PUTEAL SCRIBON (Grueber [1970] 419 420). Libo Scribonius, likely a triumvir monetalis, minted these coins either because he commissioned the puteal himself or to commemorate his ancestor who did. Possible ancestral candidates go as far back as the tribune of the plebs of 149 BC. See Coarelli (1985) 166-170; David (1995) 378-379, 382; LTUR 3.171-173.

Main ancient texts: Hor. Sat. 2.6.35; Pseudacr. ad Hor. Sat. 2.6.35; Hor. Ep. 1.19.8; Ov. Am. 1.13.19-20; Porphyr. ad Hor. Ep. 1.19.8.; Pers. Sat. 4.49; Schol. ad Pers. Sat. 4.49; Fest., p. 448L. For a more complete argument see Richardson (1973); Coarelli (1985) 166-180; David (1995) 377-382.

Fest., p. 448L.

Coarelli (1985) 180.

David (1995) 382. He assigns symbolic and political motives to this move.

Dio 51.22.

Richardson (1973) 230-231. Coarelli (1985) 180, as the coup de grace, suggests that the tribunal was in the east end since the benches and other furniture from the tribunal fuelled the pyre of Caesar! See also Frier (1985) 57-62.

Hor. Sat. 1.9.35-42, 74-78.

Salmon (1952) 184-193 offers an alternative route which Castagnoli (1952) correctly questions on several points. For further discussion of the legal aspects of this satire see Rudd (1961); Mazurek (1997); Cloud (2002) 239- 244; Metzger (2005) 166-171. On the more general theme of Horace, satire, and the law see McGinn (2001).

Suet. Aug. 29.1. These public courts are also referred to as the quaestiones perpetuae. The selection of jurors was also to take place within this forum.

Dio 55.10.1a. AD 62 is the earliest dateable mention of this court's residence in the Forum of Augustus TH 89.

See the new critical edition of the Tabulae Sulpiciorum by Camodeca (1999). The Tabulae Herculanenses have not been as fortunate. They are published in a scattered form through various volumes of Parola del Passato and LAnnee Epigraphique. The earliest appeared in 1946.

TPSulp: 13, 14, 15, 19, 27; TH 6, 13, 14, 15. Currently it is debated whether TH 14 is an exact copy or records a separate event from TH 13 (Metzger [1998a] 222 n.

Of the other two, one is a testatio sistendi (a document acknowledging the failure of one of the parties to appear at the appointed date, time, and location), and the other is a conven­tio finiendae controversiae (a document announcing the cessation of the dispute) that refers to another vadimonium to Rome. The testatio sistendi (TPSulp 19): [C. La]ecan[i]o Basso [Q Terentio] cos pr k Febr [Rom]ae in foro Augusto [ante] statu am Gracci [ad colum]nam quar=[tam prox]ume gradus [hora n]ona C. The conventio finiendae controversiae (TPSulp 27):... si Ti[berius] lulius Spo[r]us [vadi]monium, quodei cum L[ucio] F[a]enio Thallo cognitore meo k[alendis] Novembr[ibus] primis Romae in foro Aug[usto] ante statuam Cn[aei] Senti Satummi [t]riumphalem hora tertia.... The texts of the TPSulp given here are those published in Camodeca (1999).

Rodger (1997) 161.

On the various forms of vadimonia see Metzger (2005) 7—17. Much work has been, and is continuing to be, done on defining the legal nature of vadimonia. See Crook (1978); Costabile (1987); Burton (1996); Rodger (1997); Metzger (2000), (2000a); Johnston (2001); Cloud (2002), (2002a); Metzger (2005).

See Lex Irni., ch. 84; Lex Rubr. Gall., ch. 21; Rodger (1990, 1996, 1997).

Lex Irni., ch. 84; Burton (1996) 219; Rodger (1997) 161.

TH 14. It has commonly been assumed that TH 14 is a copy of TH 13. Metzger (2000) 164—165 calls this conclusion into question.

For discussion of the documents tied to Petronia lusta's case see most recently Metzger (2005) 155-163.

See Carnabuci (1996) 29-76 for discussion and additional bibliography.

Castagnoli (1950) 75-77 was the first to suggest this location.

Vitr. De Arch. 5.11.2.

Vitr. De Arch. 5.11.1.

Castagnoli (1980) 91; David (1995) 383. The issue of courts being held under the open sky has been brought into the debate over whether the exedrae were roofed or not: Ricci (excavator) and Gismondi (his architect) assumed they were roofed (see Zanker [1972] figs. 4, 5). Anderson (1984) 76 believes that, had they been covered, the lighting would have been inadequate to read the inscriptions that accompanied each statue. He uses Ovid's description of Mars Ultor looking down into the exedrae from the pediment (Fast. 5.551-568) as proof. Bauer (1987) 766-767 believes they were covered, though he sug­gests that where the portico met the exedra there may have been windows that rose above the exterior roof of the portico; these would have supplied light for the exedra.

TH 89; AE 1996, 407; Camodeca (1996) 171-172.

Ov. Fast. 5.551-568.; Zanker (1988) 194-195.

David (1995) 384 also supports this location as it would maintain the same physical rela­tionship and symbolic link between the court and a temple as the court previously had in the Forum Romanum. There, in David's opinion, the urban praetor's tribunal was located to the right of the Temple of Divus Iulius. In the Forum of Augustus the tribunal would be to the right of the Temple of Mars Ultor - the symbolically favorable position.

Augustus identified as summi viri those men “who had raised the dominion of the Roman people from humble origins to greatness” (Suet. Aug. 31.5). For brief discussion of these statues and the surviving fragments of the inscriptions see Zanker (1972) 15-16; Sage (1979); Anderson, J. (1984) 80-87.

TPSulp 27.

TH 6.

TPSulp 15. Most likely this phrase refers to the altar that is built into the stairs of the temple itself (LTUR 2.291). The proxume gradus, therefore, suggests that the two parties meet not on the stairs themselves but before the stairs on which the altar is located.

TH 15. For overview discussion of the Forum see LTUR 2.289-295.

For further discussion of the interesting chronological issues raised in this document see Camodeca (1999) 91-92.

Pugliese-Carratelli (1948) 171; Metzger (2000a) 160, (2005) 158. Anderson (1984) 92 appears to have misread the date given by Carratelli.

Metzger (2000a) 160. The Tabulae Sulpiciorum collection ranges, in its entirety, from 26/29 to 61 (Camodeca [1986] 505).

TH 15; TPSulp 13.

TPSulp 14.

TPSulp 15 and 27.

TH 13.

Suet. Aug. 29.1.

Tac. Dial. 39.4.

Suet. Aug. 29.1.

I am not convinced. If the overcrowding had been a problem, what difference would a couple of months make? Yet we do see partially completed structures opened to the pub­lic all the time in modern times. Anderson (1984) 94 suggests the consecration was rushed so that Lucius' adoption of the toga virilis could be held here in 2 BC. That date is not specifically supported. However, Augustus' assumption of the consulship of that year is explained by the fact that he wanted to introduce Lucius as consul. See also Vell. Pat. 2.99-100.2; Dio 55.10.2.

Varro 12.3; Livy 27.50.9; Plin. NH. 10.20; Plut. Caes. 52; Ascon. Milo 34.

Cic. QFr. 2.3.6; Livy 26.27. Welin (1953) advises caution in attaching a physical location to such a phrase. Plautus (Curc. 476) places the Cloaca Maxima, which is very much towards the eastern end of the forum, in foro medio. Likewise Cicero (Att. 4.17.8) places the Basilica Aemilia in foro medio.

Giuliani and Verduchi (1987) 93. See Giuliani and Verduchi (1987) 183 for drawings of the evolution of the Forum from the Augustan to Severan ages.

CIL 6.1468=31662, 37068. On the other side of this slab is the relief of the Lacus Curtius. PIR² N 16; Giuliani and Verduchi (1987) 94. Coarelli (1985) 226-227 suggests he was triumvir monetalis in 19 BC and praetor a bit before 7 BC.

Giuliani and Verduchi (1987) 94. Some scholars (e.g. Platner and Ashby, Romanelli, Coarelli) believe that the inscription proves that the entire pavement visible today dates to his repaving. Giuliani and Verduchi (1980 and 1987) and Giuliani (1995), however, convincingly show that in fact the Augustan level of the inscription and the area immedi­ately around it was preserved and incorporated into the Severan period pavement that is the present pavement for most of the Forum. At points such as those near the rostra Vandalica, the Arch of Septimius Severus, and the Lacus Curtius, the Augustan pavement actually is preserved on a level immediately lower than the Severan pavement. The Severan pavement is distinguishable with its irregular shapes of travertine and use of iron clamps to secure the paving stones. In some way the Severan pavement was slanted down to the Augustan level around that particular area. What motivated this preservation deserves study.

Welin (1953) 75-97; Richardson (1973) 219; David (1995) 376-377. Richardson (1973) 222. David (1995) 377 does not discuss the issue.

Hülsen (1910) 21. Hülsen based his attribution on the facts that no pavement existed within this 8.9 X 7.9 m² area, and the Anaglypha Traiani were discovered nearby which included a representation of a statue of Marsyas and a fig tree. For a detailed drawing of this area see Giuliani and Verduchi (1987) 95.

For a summary see Verduchi's entry in LTUR 5.88-89.

Giuliani and Verduchi (1987) 95-102. The points of their argument: 1) that the founda­tion was not directly tied to the concrete suggests there was little fear of damage from shifting or tipping; 2) the use of a slim mortar and the placement of the structure partially on top of a manhole cover for the republican subterranean tunnel system, which was not reinforced as it was in the case of other forum structures, indicates that the structure could not be very heavy.

Giuliani and Verduchi (1987) 100-102.

The most recent extended discussion of the Anaglypha Traiani appears to be Torelli (1982). For previous bibliography see Koeppel, ANRW 2.12.1,495-496. Coarelli (1985) 314-324 also briefly considers the reliefs. For more recent discussion see Boatwright (1987) 182-190.

For pictures of the Anaglypha Traiani see Torelli (1982) Plates IV.1 and IV.2.

From left to right: a slightly oblique representation of the Arch of Augustus, the Temple of Castor, the space of the Nicus Tuscus, and the Basilica lulia. In the foreground on the left side of the relief is the rostra ad aedem divi lulii from which a figure, likely the emperor, addresses an audience standing before the rostra.

Giuliani and Verduchi (1987) 101-102 (drawing on p. 103) suggest a new placement of the statue of Marsyas and the sacred trees in a rectangular area, 3.7 X 3.4 m, repaved with travertine, immediately to the west of the tribunal and approximately 18 m from the Rostra of Augustus. Under the travertine was found a structure of concrete that suggests the base of a removed monument. The monument, which is aligned with Augustus' ros­tra and both the inscription of Naevius Surdinus and the tribunal, likely predates the Augustan period. The Anaglypha Traiani support this interpretation. On the relief, the respective sizes of the tribunal and the statue correspond to the archaeological remains. The distance between the two structures also is portrayed accurately.

Porphyr and Pseudoacr. on Hor. Sat. 1.6.120.

Can we go so far as to say this is a “snapshot” of the daily activities within the Forum? Perhaps not. We see a Forum full of people, the emperor addressing an audience at one end from the Julian rostra, and the praetor peregrinus dispensing justice from his tribunal before the Basilica lulia in the middle of the Forum. It seems unlikely that the praetor pere­grinus would have held court while the emperor was addressing the citizenry. Torelli (1982) 96 suggests that the raised platform and figure is an alimenta statuary group in which Italia is holding or presenting her children to the seated emperor, Trajan.

See Carnabuci (1996) 76-90 for an overview.

TPSulp 13 and 14.

Metzger (1998a) 218 n. 19. This assumes that the jurisdictions of the praetor urbanus and the praetor peregrinus were divided according to the status of the involved parties. See n. 4 above for other views.

David (1995) 384.

Zanker (1988) 203, 211.

RG 29.2; Dio 54.8.1-3.

Dio 60.18.3, 23.2; Eutr. 7.13.2; Camodeca (1999) 66.

Rodger (1997) 161 and 172. How was the order of cases determined? Surely, no reports were sent ahead telling the praetor what day some local court picked for him to hear a case in Rome. It seems likely that litigants were frequently hanging about for days on end, waiting for their cases to come up.

Rodger (1997) 172.

We know statues of these two men were included, from surviving fragments of the elogia that accompanied them: ILS 56, 59.

TPSulp 13 and 27. TPSulp 14 uses the same location as well. However, this vadimonium is between the same parties as TPSulp 13. A location used by both parties previously would have been a natural choice. Camodeca (1999) 67 suggests that the two vadimonia were executed in the same year. We can only date them to March 17 or 20 and September 30 of an unknown year.

TPSulp 19. Camodeca (1999) 72 identifies this Gracchus as the consul of 177 and 163 BC. Camodeca (1999) 72 identifies the stairs as those of the Temple of Mars Ultor, based on TPSulp 15.

Horace (Sat. 1.9.35—40) wants to avoid standing around the court waiting. Cloud (2002) 242 provides a particularly good translation of lines 39—40: “Damn it, my legs aren't up for standing around (either by the temple or in court) nor do I know any civil law.” See Metzger (2005) 167—168 as well. While the urban praetor's court Horace was trying to avoid was, at the time, located in the eastern end of the Porum Romanum, it is no great leap to imagine that the press of legal business was much the same when the court was sta­tioned in the Forum of Augustus.

Gell. NA. 15.5.3^.

The further information that the praetor achieved his goal of dealing with all the sched­uled business is also noteworthy.

There may also have been the opportunity in the course of the day's session to approach the praetor with unscheduled business. The advocate in the above passage apparently made such an attempt. However, the praetor's response could in fact be our proof that such spontaneous inquiries were not encouraged.

The surviving numbers on the Colosseum run from XXIII to LIV. See Claridge (1998) 282.

Gell. NA. 15.5.3.

Robinson (1995) 4; Brennan (2000) 368-369.

For discussion of the development, jurisdiction, procedure, and extinction of the quaes­tiones perpetuae see Greenidge (1901) 415-504; Gruen (1968) 258-62; Jones (1972) 48-97; Robinson (1995) 1-14; Brennan (2000) 235-238, 365-370, 416-424, 465-475. For an interesting discussion of the workload of republican praetors see Brennan (2000) 455-458.

Brennan (2000) 634.

Cic. QFr. 2.3.6; Johnson (1927) 48, 53; Welin (1953) 100; Alexander (1990) 130.

Cic. de Orat. 2.66.266; Plin. NH. 35.25; Quint. Inst. 6.3.38; LTUR 5.14-15; Coarelli (1985) 176-180; David (1992) 728-730.

Suet. Aug. 29.1.

Johnson's 1927 work on the Roman tribunal provides an overview of this topic. Unfortunately, she often uses republican and imperial period sources without considera­tion of possible change over time and, on occasion, is overly confident as to what can be concluded from the available evidence.

Richardson (1973) 219. Frier (1985) 59-62 argues along similar lines for the praetor's tribunal in the late Republic. He does not provide any evidence for his conclusions, how­ever. We find mention of a late republican praetor moving his tribunal from one location to another for political reasons. See Caes. BC. 3.20.1.

For an extensive study of artistic representations of temporary platforms, including the legal tribunal, see my forthcoming study in Deroux, C. (ed.) Studies in Latin Literature and Roman History (2007).

For a photograph of this relief, now lost, and discussion see Gabelmann (1984) 162-163, Taf. 21.2.

Tac. Ann. 1.75.1.

Plin. Ep. 5.6.23 supports this interpretation of “in cornu".

Our only republican evidence records assessors joining an urban praetor on his tribunal: Cic. De Or. 1.37.168. Frier (1985) 62 implies this was a common practice. This perhaps lends further support to the argument for the tribunals of the praetor urbanus and praetor peregrinus being larger. Although we have evidence of assessors in the imperial period sit­ting on the tribunals of others, additional factors weaken their value to this study. Piso sits on Germanicus' tribunal in the camp (Tac. Ann. 2.57.4). Felix, while governor of Judaea, joined Quadratus, the governor of Syria, on his tribunal (Tac. Ann. 12.54.7). According to Josephus (AJ 20.129), this hearing was held in Samaria. The military and provincial locations of these tribunals make comparison to legal tribunals in Rome difficult. Suet. Tib. 33; Dio 57.7.6. Dio (57.7.6) mentions how Tiberius attended the courts of other magistrates, sat on a bench opposite them, and said such things as “seemed good to him in a role as an assessor.” Two words of Dio's passage are of particular importance: βάθρον and κατάντικρυ. When he speaks of a tribunal of a magistrate dispensing justice he regularly uses βήμα (e.g. Dio 55.33.5, 57.7.2, 60.4.3, 68.10.2, 69.7.1). In this passage, however, he uses the word βάθρον, bench. In addition, he uses the preposition, κατάντικρυ. This word appears only one other time in his writings — when he describes a lunar eclipse and the moon moves directly opposite, κατάντικρυ, the sun, and the earth passes between the two masses. Dio's use of κατάντικρυ in this way here strongly suggests that he visual­izes Tiberius' location to be on a bench located directly opposite the tribunal of the presiding magistrate. This provides a fuller explanation for the final line of Suetonius' comment that Tiberius sat “exadversum in parte primori', “opposite [them] at the end”. Suetonius is thus stating that Tiberius occupied one of the ends of a bench placed directly opposite the tribunal.

E.g. Mart. 11.98.18.

Mart. 11.98.14-19.

Frier (1985) 62 suggests a one metre height but he provides neither reasoning nor direct evidence for his conclusion.

Greenidge (1901) 133, 458; Johnson (1927) 27, 32; Kennedy (1972) 16.

Cic. In Vat. 14.34, Sest. 64.135.

Hoke (2000) 8.

Hoke (2000) 912 stipulates that a modern jury box should allow 0.93-1.12 m² (10-12 ft²) per juror. He then calculates that a standard 14-person jury box needs to be 5.8 to 6.4 m (19 to 21 ft) long and approximately 2.44 m (8 ft) deep. The modern jury box tends to have fixed seats for jurors with some space between each seat. If one were to transfer the jurors to benches, they could be packed far more closely together, thereby reducing the amount of space needed. Hoke (2000) 915 advises that for bleachers in a sta­dium 46 cm (18 in) of bleacher length should be allowed per individual. This would be quite a tight seating arrangement and one can imagine that ancient judges would not have enjoyed being this cramped for multiple hours. For this reason 0.84 m² (9 ft²) has been used for the calculations here.

Nicolet (1980) 377 suggests that due to the number and weight of so many people, per­haps the tribunal to hold a panel was lower than that used by the magistrates. He offers as evidence of this arrangement Cicero's (Fam.13.10.2) statement that M. Terentius served “in utrisque subselliis” - “on both benches”. Nicolet interprets this phrase as meaning the man served as both an advocate and a judge on a panel of judges. However, the phrase could also mean the man served as both prosecution and defence counsel. Raising the judges on a lower platform, as Nicolet suggests, would improve the judges' ability to see but only slightly.

Quint. Inst. 11.3.134. Quint. Inst. 6.1.34.

Our sources are very fragmentary; they are collected by Biondi in Riccobono (1945) 142-151. Important work was done on the laws by Girard (1913). More recently, Johnston (1987) has suggested a redefining of the laws.

This overview merely gives a sense of the procedure. Greenidge (1901) 428-504 is the classic work on the republican quaestio procedure. Strachan-Davidson (1912) has much to add. More recently, see Jones (1972) 63-66; Jolowicz (1972) 401-405; Robinson (1995) 1-14.

Greenidge (1901) 133; Richardson (1973) 221.

It is true that in the imperial period, the urban and peregrine praetors, like the emperor, could preside over both stages of a case during one sitting, and we can assume that in those cases the two parts of the trial would have been held in one location (Jones [1972] 97). The estimated dimensions of the open central space of the forum (interrupted only by the quadriga commemorating Augustus as pater patriae ERG 35.1]) are approximately 50 X 70 m. Since the southernmost boundary has yet to be determined (excavators estimate a total length for the forum of 125 m) the length of the open area is tentative. See Anderson (1984) 73—74 for brief discussion and further references. I find no reference to the quadriga in Anderson’s discussion, however. This monument would impact upon the use of the space.

Greenidge (1901) 431. Our evidence, admittedly, is entirely republican. For discussion of the sources concerning these individuals see Jones (1972) 58—59. This post was often held by ex-aediles in the year following their term of office. Examples in the epigraphical record: ILS 45, 47, 906, 915. The only one to which we can give an approximate date is ILS 47 which, interestingly, commemorates C. Octavius, the father of Augustus. There is some question concerning the plural form of the title: "index quaestionum". Does this mean he served in this role more than once, perhaps in more than one court?

Vitr. De. Arch. 6.5.2: "quod in domibus eorum saepius etpublica consilia et privata iudicia arbi­triaque conficiuntur', "because in their homes often both public deliberations and private trials and arbitrations are undertaken”. Here was yet another way in which the Roman house accommodated both private and public activities. The Roman house and its roles have received the attention of scholars. See recently, for example, Wallace-Hadrill (1994), (1996), (1997); Zanker (1999).

It appears that the leges Iuliae Iudiciariae forbad the accuser and accused from entering the home of a judge, and vice versa, in public cases: Dio 54.18.3; Dig. 48.14.1.4. No mention is made of a similar restriction for those involved in private suits.

Quint. Inst. 11.1.47.

Quint. Inst. 11.3.127.

In an interesting chapter on the unus iudex, Kelly (1976) 112—133 proposes that the insti­tution of the single judge served to provide a judicial setting for disputes which, in fact, worked to avoid a public airing of the parties’ business. His evidence is republican. Crook (1995) 136 appreciates Kelly’s interpretation, but rightly wonders how "private” a trial in a home would actually be, since Vitruvius stresses that the space must be large enough to accommodate more than just the parties to the dispute and the judge.

Cf. Frier (1985) 205.

Quint. Inst. 11.3.134.

Quint. Inst. 11.3.156.

Gell. NA. 14.2.11. Frier (1985) 205 uses this passage to support his conclusion that sin­gle judges did not use platforms.

For brief discussion see Jones (1972) 94, 113-114; Robinson (1995) 9-11.

No attempt is made to examine the nature of the disputes that came to this court. Peachin (1996) 79-88 discusses the emperor’s investment of time in dealing with legal matters. Unfortunately, he does not consider the issue of the court’s physical setting(s).

It is assumed that when the ancient authors use the word forum in this context they mean the Forum Romanum.

Claudius: Dio 60.4.3; Vespasian: Dio 66.10.5; Domitian: Suet. Dom. 8.

Dio 57.7.2.

Dio 69.7.1.

Court of Claudius in the Forum of Augustus: Suet. Claud. 33.1; of Trajan: Dio 68.10.2. Suet. Claud. 33.1.

Ov. Fast. 5.551-568. This is also the exedra occupied by the urban praetor’s court. The problem of distinguishing the nature of the disputes that came before the emperor should be briefly acknowledged. My interest is solely in the emperor's court as a legal tribunal. However, as Crook (1955) 33, long ago pointed out and Millar (1977)passim, aptly reit­erated, the unique intersection of so many diverse jurisdictions within the office of emperor means that frequently it is difficult to tell if a dispute came before the emperor as a judicial hearing — either private or public — or as an administrative hearing concern­ing embassies from the provinces. My attempts below err on the side of caution by cutting a narrow swathe. The vocabulary particularly has been studied. For example, Dio consistently uses the verb “δικάζειν” (to judge) in the passages discussed here. I have taken this as an indication that Dio means to distinguish the emperor's court in these circum­stances as a law court.

Suet. Aug. 33.1; Dio 55.33.5.

See LTUR 2.46-48.

Tac. A»». 11.2-3.

Dio 67.17.1. The Domus Tiberia»a is also a possibility.

Crook (1955) 107-108. These three rooms are located in the north-west corner of the palace with a monumental porch on the north side (Claridge [1998] 134-135). This was the most accessible and public section of the palace; as well, their location and design kept business noise isolated, and access from these spaces to the rest of the palace was easily restricted.

Dio 69.7.1 Dio 76.11.1.

The bibliography on the imperial residences is vast and mined with complications. For an accessible overview see Domus Tiberia»a, Augusta»a, Tra»sitoria, Aurea, in LTUR vol. 2. Acta Isidori. Rec. B Col. 2.

For good treatments of all of these topics, except the Horti Agrippi»ae, see LTUR vol. 3. For the Horti Agrippi»ae see Richardson (1992) 196. The gardens of Maecenas and Lamia served as the backdrop for what can best be described as a “walking” audience with the emperor Gaius (Philo Leg. 44.351). Gaius heard the argument while surveying the build­ings; it is not possible to determine if this meeting was an audience with an embassy or an actual trial. For an interesting discussion of horti and self-representation (in which this incident involving Gaius and Philo appears) see Beard (1998).

Dio 60.33.8.

Acta S. Laure»tii; Acta S. Marcelli; Acta S. Cresce»tii; Acta S. Susa»»ae. See Jordan (1871) 124-125.

Dio 68.10.2 (Trajan), 69.7.1 (Hadrian, who restored the Pantheon).

See LTUR 4.54-61, 127-129.

Sen. Apoc. 7.4.

Eder (1984) suggests the Temple of Hercules Victor, which is the closest of the possible temples to the Tiber. Another possibility, not quite so close to the water's edge, is the Temple of Hercules Musarum. See LTUR 3.11-25.

Dio 60.4.3, 68.10.2, 69.7.1.

Some other possible locations will be suggested below when I discuss the unknown court locations of other magistrates.

Suet. Aug. 33, Claud. 15.3, 33.1, Dom. 8.1; Dio 55.33.5, 57.7.2, 60.4.3, 68.10.2.

Suet. Aug. 33.

Dio 69.7.1.

Suet. Claud. 15.3.

Dio 55.7.2, 55.33.5, 57.7.2, 60.4.3, 67.17.1, 69.7.1.

Jos. BJ. 2.37.

Suet. Aug. 33.1.

Suet. Claud. 15.4.

Dio 55.7.2.

E.g. Jos. AJ. 17.230, 240, 248, BJ. 2.26 and 34; Tac. A»». 13.52.1—3; Plin. Ep. 6.31.7-11; Suet. Aug. 51.2, Tib. 8.1, Claud. 15.2.

Suet. Aug. 93; Dio 55.7.2, 60.33.6.

Philostr. VS. 2.26.613.

Tac. A»». 12.43.2.

Dio 75.15.5.

E.g. Augustus: Suet. Aug. 93; Dio 53.21.5, 55.33.5, 55.34.1; Tiberius: Dio 57.7.2; Claudius: Tac. A»». 11.3.1; Dio 60.4.3; Hadrian: Dio 69.7.1; Septimius Severus: Dio 75.16.2, 76.17.1. The classic modern work on this topic is Crook (1955).

P Oxy. 2435 = Sherk (1988) #25.

Tabula Ba»asita»a, AE 1971, 534. ll. 41-53.

Crook (1955) 114.

Dio 60.4.3.

Rec. B. Col. I.

Dio 60.4.3.

Dio 55.7.2.

Tac. A»». 6.10-11; Dio 52.21.2; Dig. 1.12.1.pr.4. Its original legal jurisdiction focused on petty disputes that arose in overseeing the management of the city (Jos. AJ. 18.169; Tac. A»». 6.11). By 61 it appears this court had replaced the quaestio for falsum (Tac. A»». 14.40.1-41.3). In 69 (Tac. Hist. 2.63), though the circumstances seem exceptional, we find Plancius Varus laying a charge, likely of treason, against Dolabella in the court of the praefectus urbi, Flavius Sabinus. It is of note that he was uncertain of his jurisdiction on this occasion. By the late second/early third century, as the quaestio»es perpetuae were ceas­ing to function, the urban prefect dealt with most common public crime in Rome and within one hundred miles of the city. For discussion see Vitucci (1956) 50-81; Garnsey (1970) 90-98; Jones (1972) 90-118. For another interesting aspect of this office see Lendon (1997) 177-183.

See Tac. A»». 13.28.1-4; Suet. Claud. 23; Gell. NA. 13.25.2; Dio 60.24.3, 69.7.1; CJ. 2.23.1; Dig. 34.1.3. Jones (1960) 86-98 argues for quite an extensive judicial role for the consuls, though he acknowledges the vagueness of the sources. His arguments, however, rely on practicality and are quite persuasive.

Juv. 13.154-161.

Mart. 2.17; Lyd. Mag. 1.34; LTUR 4.159-160.

See Anderson (1984) 116-117 for discussion.

The structure located near the temple of Tellus is called the praefectura urba»a. An alterna­tive location in the Forum of Trajan will be considered below.

Gellius (NA. 13.25.2) speaks of a man waiting for his friend, the consul, who is presiding over a court. There is no plural sense in this passage. Dio (69.7.1) says that Hadrian used to join the consuls when they heard cases. Here, Dio uses the plural “tolg fjnatoig”, “the consuls”. However, the generalized nature of the passage demands caution. In his descrip­tion of Octavius Sagitta's murder of one Pontia, Tacitus (A»».13.44.1-9) states that Pontia's father reported it “apud ccmsules", “before the consuls”. This statement seems to contain more of a jurisdictional tone to it rather than serving as a plain description of those to whom he spoke, though perhaps such a differentiation relies too much upon nuance. The evidence seems to point both ways. I suggest that each consul held court sep­arately in order to most effectively deal with the caseloads. To hear cases together would have been both inefficient and unique among the jurisdictional magistrates.

Gell. NA. 13.25.2.

For the most recent reconstructive drawings of this forum see Packer (1997). Anderson (1984) also believes that the court of the praefectus praetorio resided here as well. The juris­diction of the praefectus praetorio developed quite late in the period under examination in this study. The earliest reference to a praefectus praetorio presiding over a judicial hearing is found in an anecdote concerning Cornelius Fronto, dating to the reign of Hadrian (Dio 69.18.3). By the time of the Severi, the prefect's jurisdiction had increased to such an extent that all cases within Italy beyond the 100-mile radius from the city fell to his court (SHA. Sept. Sev. 4). On the jurisdictional development of the praefectus praetorio see Howe (1942). More recently, see Peachin (1996) 165-166.

Anderson (1984) 161-165. Packer's 1997 work does not extend to these inscriptions.

For recent discussion see Boatwright (2000) 80-84. For evidence of direct imitation of the summi viri of the Forum of Augustus: SHA. Alex. Sev. 26.4.

Events that took place in this forum: records of unpaid taxes burned here by Hadrian (SHA. Hadr. 7.6); Marcus Aurelius sold state jewels to pay for Marcomannic wars (SHA. Aurel. 17.4, 21.9); Commodus gave congiaria (SHA. Comm. 2.1). For further events see LTUR 2.289-295.

E.g. CTh. 1.9.1,4.12.5, 9.7.6, 9.17.3, 9.19.2.2, 10.1.2, 10.10.2, 10.10.31.

The basilica consists of a central space (24.973 X 88.14 m), lined with columns, as well as two apses, each with an opening of 41 m and a calculated radius of 22.03 m. At the back of each apse is a large niche (approx. 7.5 X 6 m). The open central area of the forum, in front of the Basilica, measures approximately 107 X 88 m. The porticoes on each side measure 14.7 m wide. Off each portico is an apse with an opening of 40 m and a radius of 21 m. All measurements are either given by Packer (1997) or are calculated using his plates. One must remember that only the central area of the basilica has been excavated and some explorations of the west apse have been made. The apses have not been excavated.

These numbers are based on Canadian football dimensions (110 X 65 yds) converted from yards to metres. For visual purposes, the final square footage includes the two 20-yard end zones.

Pianta Marmorea, II, Pl. XXVIII. For a plan drawing see Packer (1997) fig. 125.

Packer (1997) 244, 431.

Packer (1997) 243-244. Packer (1997) 435-437.

Smith (1875) 289.

Giuliani and Verduchi (1993) 178. See Chapter Two.

Space of Basilica Julia: 1200 m². Divided among four tribunals: 300 m² per tribunal. Space of Basilica Ulpia: 2200 m². At 300 m² per tribunal: 7.3333 tribunals.

Anderson (1984) 166. Anderson (1984) 166.

Tac. Ann. 13.28.4.

Tac. Ann. 13.28.1-3.

Praefectus annonae (his office became the fiscus frumentarius in the Flavian period): Dig. 1.2.2.33; Jolowicz (1972) 347; Robinson (1992) 157; praefecti aerarii became the perma­nent magistrates of the aerarium Saturni in 56 and the office survived until the time of Diocletian: Tac. Ann. 13.291-3; Suet. Aug. 36, Ner. 17. The aerarium militare was consis­tently managed by threepraefecti: Dio 55.25.2.

Tac. Ann. 4.6.5; Plin. Pan. 36.4; Dig. 1.2.2.32; Crook (1995) 52-53. The title of this office evolved over time.

Dig. 1.15; CJ 1.43; Garnsey (1970) 95; Jolowicz (1972) 347; Nippel (1995) 95-98. They seem to disappear from sight in the late Republic. See Garnsey (1970) 91 n. 3; Nippel (1995) 22-26.

See Kornemann in RE 4.1774-1811; Robinson (1992) 86-105.

Suet. Aug. 29.1.

Mart. 3.38.3-4. Seneca (Ira 2.9.4) also links the three fora and legal hearings.

App. BC. 2.15.102.

Ars. Am. 1.79-88.

Anderson (1984) 24—25 concludes that this must be a trial before a full jury (he incor­rectly assumes advocates appear only for these types of trials), suggesting perhaps one of the centumviral tribunals before they moved to the Basilica lulia.

Ulrich (1994) 144-145.

Ars. Am. 3.449.

Rem. Am. 659-668.

Augustus' forum, housing the quaestiones perpetuae and the courts of both the praetor urbanus and the praetor peregrinus, and the emperor's court on occasion, likely could not have accommodated any other courts.

Horace (Ep. 1.6.58-61) describes the forum as “differtum" — “packed”.

Ulrich (1994) 98, 101-104.

Cic. Verr. 2.154; Plut. Sulla 33; Ulrich (1994) 101.

Surface size of platform: Temple of Venus Genetrix: 59 m²; Temple of Divus lulius: 140 m²; Temple of Castor (AD 6): 75 m² (Ulrich [1994] App.).

Ulrich (1994) App.

Dio 68.10.2.

Anderson (1984) 111.

Ov. Ars. Am. 1.67-86.

These calculations are based on the depiction of the area on the FUR. See Richardson (1992) 286. Ongoing excavations may revise these numbers.

Quint. Inst. 10.5.18.

The Basilica lulia is a less likely location since the centumviri held their hearings within this structure. The centumviri, however, met every second day during a trial (see Plin. Ep. 5.9.1). Therefore, it is possible, if that had been the only space available, that another trial could have been interspersed between the days of the centumviral court sessions. Ulrich (1994) 159-160 mentions that both the Basilica lulia and the Basilica Aemilia had “inte­rior tribunals". He does not elaborate.

Hor. Ep. 1.6.59.

Hor. Sat. 1.4.65-68.

Dio 57.7.2; 60.4.3; 66.10.5; Suet. Oom. 8.1; Dio 69.7.1.

Dio 60.4.3.

Suet. Ner. 17. We must be careful in interpreting of which forum Suetonius speaks. Mart. 5.20.6.

Hor. Ep. 1.7.46-49.

Suet. Claud. 33.1; Dio 68.10.2.

Suet. Aug. 29.1.

TPSulp 13; TH 6.

Juv. 1.127-128.

Mart. 7.51.4. See also 8.44.6-8, which refers to the Forum of Augustus as well as that of Julius Caesar and the Forum Romanum.

Anderson (1984) 93.

Juv. 13.135.

Mart. 2.64.7.

Sen. Controv. 3.pr.12; Quint. Inst. 10.1.33, 11.3.27.

Plin. NH. 15.20.78, 19.6.23-24.

Dio 59.23.9.

Sen. Controv. 3.pr.12·. “cum in foro dico", “when I speak in the forum".

Tac. Dial. 3.4: "cum te tot amicorum causae, tot coloniarum et municipiorum clientelae in forum vocent", “when all the cases of your friends and those of colonies and municipalities call you into the forum"; 13.5: “insanum... et lubricum forum", “the frenzied and hazardous forum".

Fronto Ad Am. 1.27.2: "nam in forum descendit natalibus nobilis, de foro rediit eloquentia quam genere nobilior'. The classifications and numbering used for Fronto's letters are those of van den Hout's 1988 Teubner edition.

Fronto Ad M. Caes. 5.42.1: “quoniam ad agendum ad forum ibam".

Suet. Rhet. 6: “renuntiavit Ford'.

Use of the term “forum" to indicate legal activities was not a new development of the Principate. Cicero uses the term in such a way on occasion (e.g. Brut. 88.301, Flac. 70). Of course, it was not until the time of Julius Caesar that the singular term could be used to refer to multiple public spaces. Detailed examination of the evolving use of this word may be rewarding.

2 RECONSTRUCTION OF THE ROMAN COURTROOM

Quint. Inst. 11.3.127.

Quint. Inst. 6.1.37.

Plin. Ep. 6.33.3. Multiple advocates: e.g. Quint. Inst. 1.5.43; Plin. Ep. 2.19.1; Fronto Ad M. Caes. 3.4.1-2.

Quint. Inst. 6.4.8, 12.3.2, 11.3.131, 12.3.3. Pliny's freedman stood behind him during his speech in the senate defending Priscus (Ep. 2.11.15).

Plin. Ep. 2.14.6.

Quint. Inst. 5.7.32.

Sen. Controv. 7.4.7, 10.pr.3; Quint. 6.1.48; Plin. Ep. 6.33.3; Suet. Ner. 17.

Their portability was helpful in other circumstances, too. Suetonius (Iul. 84.3) mentions that the “cum subselliis tribunalia", “the tribunals with the benches" — helped fuel the pyre of Julius Caesar. This furthermore suggests that even on days when the courts clearly were not meeting, the benches either were left at the courts or were stored some­where nearby.

Talbert (1984) 122-123.

Artistic representations of bisellia survive: e.g. coins: Mattingly (1923) #115-117 (Augustus and Agrippa on bisellium) 13 BC; reliefs: see tombs of Calventius Quietus and C. Munatius Faustus from the Necropolis at the Porta Ercolano at Pompeii: ILS 6372, 6373. For a photograph of Quietus' tomb see Mau (1899) fig. 232. For brief discussion of benches see Edmondson (1996) 92-93.

Dio 37.50.2, 56.31.3. For a single praetors' bench in the senate see Dio 56.31.3, 60.12.3. However, Dio also refers to the “benches" of the tribunes: 49.15.6. In addition, during Claudius' reign, the period to which Dio's comment in Book 60 refers, the number of praetors fluctuated between 14 and 18. Yet a single bench for this many people is imprac­tical and thus Dio's reference to the “bench" of the praetors may be figurative, so caution is warranted. For benches in the senate house see Talbert (1984) 121-124.

Suet. Ner. 17.

Sen. Controv. 10.2.3.

Quint. Inst. 6.1.39.

Quint. Inst. 11.3.132. It would be interesting to know why such a gesture was “insulting". Quint. Inst. 11.3.133.

Advocates: Quint. Inst. 11.3.156; Tac. Dial. 6.4; Plin. Ep. 1.23.2, 7.17.9. Defendant: Sen. Controv. 7.4.6. This passage relates an event that occurred during one of Cicero's speeches. Quintilian (11.1.44, 11.3.134) identifies cases of minor importance, “de re levissima", as occasions when the advocate could plead seated. We can assume such cases were private and involving lesser penalties.

Plin. Ep. 2.19.2. Translation of B. Radice. For an example of an advocate who walks a lot see Quint. Inst. 6.3.54.

Quint. Inst. 11.3.130; cf. Quint. Inst. 2.12.9. Also, when he does walk it should not be for many steps (Quint. Inst. 11.3.125-126).

Quint. Inst. 11.3.127.

Sen. Controv. 9.4.18

Quint. Inst. 6.1.46.

Clerks: Quint. Inst. 11.3.131; prompters: Quint. Inst.12.3.3. In the court of the senate we learn that Pliny (2.11.15) had an attendant standing behind him (“libertum meum post me stantem") while he delivered his speech in the trial of Marius Priscus. That he was stand­ing is interesting. One would assume that the whole court was seated and that Pliny alone, as speaker, was the only person standing. Perhaps this man was handing Pliny props? Why was he standing also?

Quint. Inst. 12.3.1.

There is no evidence that the audience was seated in a hierarchical fashion, segregated by social rank or gender, such as was found in the theaters and amphitheaters of first-century Rome. For discussion of seating at theatrical events see Rawson (1987); Schnurr (1992); Edmondson (1996).

Quint. Inst. 6.1.39.

Quint. Inst. 11.3.131.

Quint. Inst. 11.3.132.

Quint. Inst. 11.3.56, 118.

Quint. Inst. 11.3.118.

Quint. Inst. 6.1.48.

Tac. Dial. 20.3.

Tac. Dial. 6.4.

Sen. Controv. 9.4.18; Quint. Inst.12.10.74; Mart. 6.38.5, 7.72.10; Plin. Ep. 2.14.6, 6.33.3, 7.17.9; Suet. Aug. 93.

Sen. Controv. 3.pr.12.

No evidence suggests that there was any sort of raised seating, like modern-day bleachers, for the courtroom audience. Juvenal (7.45—47) suggests that such structures were used for recitationes.

Quint. Inst. 6.1.48; Plin. Ep. 6.33.3.

Tac. Dial. 39.3.

See Quint. 10.7.16, 12.8.3; Plin. 7.6.9, 7.17.9.

Plin. Ep. 7.17.9. Pliny suffered from such anxiety before speaking at the trial of Marius Priscus in the Senate (Ep. 2.11.14).

Plin. Ep. 4.16.2, 6.33, 7.6.9, 7.17.9; the criminal case is in 7.6.9.

Quint. Inst. 6.1.48.

Plin. Ep. 4.16.2.

Juv. 7.43-45.

Quint. Inst. 11.3.135.

Quint. Inst. 11.3.127.

An important passage is Quint. Inst. 11.3.127: “Id fieri iudiciis privatis non potest. Verum brev­iora sunt spatia", “It is not possible to do this in private cases. In truth, the spaces are small”. Tac. Dial. 39.1-3.

Vitr. De Arch. 6.5.2.

For a detailed discussion of this court see Kelly (1976) 1-39 and more recently Gagliardi (2002). Gagliardi also discusses the evidence for the connection between the Decemviri and the Centumviri during the imperial period (p. 42-61).

For a line drawing of the Basilica see LTUR 1, fig. 93.

LTUR 1.177-179.

Plin. Ep. 6.33. Stairs appear to have been located in the south-west section of the build­ing (Giuliani and Verduchi [1993] 178).

Suet. Cal. 37.1.

LTUR 1.178.

Richardson (1992) 52-53. Also see David (1983) 238.

Tac. Ann. 14.19.

E.g. Quint. Inst. 12.5.6.

Quint. Inst. 12.5.6.

The Basilica lulia is visible in the FUR (18b-d). See Pianta Marmorea Tav.13.18b-d. Plin. Ep. 6.33.4.

However, we must be careful about taking Attia Virola's case as the typical court location. This case was before the united four courts of the centumviri. It is possible that when the courts met separately the space within the aisles was adequate, but when a case called for the united courts - a clear indication of the importance of the case and the litigants - the court moved to the centre area. Still, if confined to the aisles the individual courts would have been left with very little usable space.

Plin. Ep. 2.14.11. Quint. Inst. 12.5.6.

Plin. Ep. 4.16.1-3. We can assume that Pliny was speaking before one of the four courts. Had he been before the united court, he surely would have informed his readers.

Plin. Ep. 2.14.8.

E.g. Plin. Ep. 4.24.1, 6.33.

Plin. Ep. 6.33.3-4.

Sherwin-White (1966) 183 thinks they do.

Sherwin-White (1966) 183. He cites 4.16, which contains nothing of use, and Tac. Ann. 1.75.1 which I have argued in Chapter One shows that Tiberius sat beside the praetor's tribunal, not on it. These two passages do not seem strong evidence.

It is unclear how many decemviri attended each court. Ten men do not divide evenly into four courts. Pliny (Ep. 5.9.2) mentions the attendance of multiple decemviri at a case in which he was involved. It appears that the case was not before the united four courts; surely Pliny would have indicated if it was. This suggests that when the four courts met separately, more than one decemviri attended each.

E.g. Quint. Inst. 12.5.6; Mart. 6.38; Plin. Ep. 2.14.4, 6, 5.9.2, 6.33.3.

The calculations to reach these results: the central nave measures 75 X 16 m (246.1 X 52.5 ft) resulting in 1,200 m² (12,918 ft²). Dividing this total by four (for the four courts) results in 300 m² (3,229.5 ft²) per court. To determine the density level of any space (meaning how much of the actual square footage is usable space) the standard criterion used by architects for public seating is 85 to 90 percent. Thus 300 m² (3,229.5 ft²) mul­tiplied by 0.85 gives an area of 255 m² (2,745.1 ft²). For people of modern western culture to be comfortable the average person needs 0.84 m² (9 ft²) of space. However, if benches are used, the expectation for personal space is far lower. The modern criteria for assembly spaces with concentrated usage, such as is found in auditoriums, churches, or dance floors, call for 0.65 m² (7 ft²) per person. So if we next divide 255 m² (2,745.1 ft²) by 0.65 (7 ft²) we reach a total of 392 persons. These calculations assume everyone was seated on benches. If one attempts to allow for a sizeable standing audience in the court space found within the central nave area the numbers increase substantially. Hoke (2000) 6 sets the maximum standing capacity for an elevator at six persons per m² (11 ft²) which allows 0.17 m² (1.83 ft²) per person. Hoke (2000) 8 determines that in assembly areas with concentrated usage (as mentioned above), one must allow 0.28 m² (3 ft²) per person. Romans standing at a trial probably could not endure being so tightly packed as one might find in an elevator for extended lengths of time. If we use the 0.28 m² criteria and hypothesize that perhaps one-quarter of the court space 63.75 m² (686.3 ft²) of the 255 m² (2,745.1 ft²) was standing space only, 228 people could stand in that space. Using the 0.65 m² (7 ft²) criteria for the remaining area of 191.25 m² (2,058.8 ft²), we can place 294 seated people in the courtroom. In total then, adding together the number of seated and standing people, we can estimate that 522 people could be accommodated within the courtroom at full capacity. This number is no doubt high since we have not set aside any space for the open central area of the court in which the advocate spoke. As a rough esti­mate, we should shave off perhaps 50—75 people to allow for that space. A more conservative estimate then would set the number of people per court at approximately 450475.

3 THE LITIGANT

1 Further research on this topic may produce opposing results.

2 Plin. Ep. 2.14.1. The four cases in the centumviral court: 1.5.5, 1.18.3^, 5.1.6-8,

6.33.2— 6. Indirectly Pliny tells us why he does not discuss more of the cases: “Sunt enim pleraeque parvae et exiles; raro incidit vel personarum claritate vel negotii magnitudine insignis” “Most of them are insignificant and dreary; rarely does one stand out for the renown of the persons involved or the importance of the issue.” Historians of the Roman courtroom, of course, would have appreciated his inclusion of even the dreariest of cases!

3 See Kelly (1976) 71-92.

4 E.g. Tac. Ann. 14.50; Plin. Ep. 6.22.1-6, 6.31.4-6, 6.33.2-6, 7.6.8-13; the trial of Nonius Asprenas (Plin. NH. 35.164; Quint. Inst. 10.1.22; Suet. Aug. 56.3; Dio 55.4.3).

5 Quint. Inst. 9.2.34.

6 Male: Sen. Controv. 2.5.13, 4.pr.10, 7.4.7, 7.5.12, 7.6.22, 9.4.18, 9.4.19; Sen. Clem. 1.9.10; Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to same case), 6.1.21, 6.1.50, 6.3.78 (Sen. Controv. 2.4.11 - may refer to the same case or to a different one), 6.3.72, 6.3.100, 7.2.24, 9.2.34, 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - connected to the same case); Acta Isidori; Jos. AJ. 17.317-320, 344; Jos. BJ. 2.245-246=AJ. 20.134-136; TH 6; TPSulp 13, 14 (TPSulp 13 and 14 may refer to the same case), 15; Tac. Ann. 2.34.3, 3.36.2-3, 3.38, 14.50; Plin. Ep. 1.18.3-4, 4.17.1-4, 4.22.1, 5.1.6-8,

6.22.1- 6, 6.31.3, 6.31.4-6, 6.31.7-12, 6.33.2-6, 7.6.8-13, 7.7.2, 7.19.5; Suet. Aug.

33.1, 51.2, 56.4 (Dio 55.4.2, Macrob. Sat. 2.4.27 - connected to the same case), Suet. Aug. 56.4 (another case in the same passage), Tib. 8.1, Tib. 8.1 (another case and also reported in Dio 54.3.6), Claud. 15.2 (three cases in the same passage), Claud. 15.4, 38.2, Vit. 7.2; Fronto Ad. M. Caes. 3.3.2-4, 5.49.1; Gell. NA. 1.22.6, 11.7.3, 14.2.4-25; Martyrdom of Ptolemaeus and Lucius, Martyrdom of Justin, Chariton, Charito, Evelpistus, Hierax, Paeon, and Liberian; Dio 54.3.1, 60.29.4 (Tac. Ann. 11.1 relates to the same case) 73.12.2. Female: Sen. Controv. 9.5.15; Quint. Inst. 4.1.19, 4.2.106 (6.1.20, 10.1.22 con­nected with the same case), 6.1.40, 6.1.50, 8.5.16, (9.4.31 connected with the same case), 8.5.17, 9.2.34; TH 13, 14 (TH 13 and 14 are related to the same case); Tac. Ann. 2.34.3,

3.36.2- 3, 4.22.4; Juv. 6.638-640; Plin. Ep. 1.5.5, 4.17.1-4, 6.31.4-6, 6.33.2-6, 7.6.8-13; Suet. Claud. 15.2; Gell. NA. 3.16.12. References that may refer to a case, although uncertainty remains so they were not included in the statistics: Quint. Inst. 6.1.43 (however, if this does refer to a case it may be the same case mentioned in Quint. Inst. 6.3.78 and/or Sen. Controv. 2.4.11); 6.3.100 (the case of Hispo is clear, but whether the matter involving Fulvius Propinquus was a case is uncertain); Suet. Vesp. 13.

7 Male: Sen. Controv. 2.5.13, 7.5.12, 7.6.22, 9.4.18, 9.4.19; Quint. Inst. 6.1.21, 6.1.43 (6.3.78, Sen. Controv. 2.4.11 - may refer to the same case or to different ones - Cassius Severus is mentioned in each passage, and one passage identifies Fabius Maximus as Cassius' opponent), 6.1.50, 6.3.72, 6.3.100, 7.2.24, 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - connected to the same case); Acta Isidori; Jos. AJ. 17.317-320, 344; Jos. BJ. 2.245-246=AJ. 20.134-136; TH 6; TPSulp 13, 14 (TPSulp 13 and 14 may refer to the same case), 15; Tac. Ann. 2.34.3, 3.36.2-3, 3.38, 14.50; Plin. Ep. 1.18.3-4, 4.17.1-4,

4.22.1, 5.1.6-8, 6.22.1-6, 6.31.3, 6.31.7-12, 6.33.2-6, 7.19.5; Suet. Aug. 51.2, 56.4 (Dio 55.4.2, Macrob. Sat. 2.4.27 - connected to the same case), 56.4 (another case in the same passage), Tib. 8.1, Tib. 8.1 (another case in the same passage and also reported in Dio 54.3-6), Vit. 7.2; Fronto. Ad. M. Caes. 3.3.2—4, 5.49.1; Martyrdom of Ptolemaeus and Lucius, Martyrdom of Justin, Chariton, Charito, Evelpistus, Hierax, Paeon, and Liberian; Dio 54.3.1, 60.29.4 (Tac. Ann. 11.1 relates to the same case) 73.12.2. Female: Sen. Controv. 9.5.15; Quint. Inst. 4.2.106 (6.1.20, 10.1.22 connected with the same case), 6.1.50, 8.5.16, (9.4.31 connected with the same case), 8.5.17, 9.2.34; TH 13, 14 (TH 13 and 14 are related to the same case); Tac. Ann. 2.34.3, 3.36.2-3, 4.22.4; Juv. 6.638-640; Plin. Ep. 1.5.5,4.17.1^, 6.31.4-6, 6.33.2-6.

8 Male: Sen. Controv. 7.5.12; Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to the same case), 6.3.78 (Sen. Controv. 2.4.11 - may refer to the same case or to a different one), 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - connected to the same case); Acta Isidori; Jos. AJ. 17.317-320, 344; Jos. BJ. 2.245-246=AJ. 20.134-136; Tac. Ann. 2.34.3, 3.38, 14.50; Plin. Ep. 1.18.3-4, 4.22.1, 5.1.6-8, 6.22.1-6, 6.31.3, 6.31.4-6, 6.31.7-12, 6.33.2-6, 7.6.8-13, 7.7.2; Suet. Aug. 51.2, 56.4 (Castricius), Tib. 8.1, Tib. 8.1 (another case and also reported in Dio 54.3.6), Claud. 15.2 (three cases in the same passage), Claud. 15.4; Fronto Ad. M. Caes. 3.3.2 4; Gell. NA. 1.22.6, 11.7.3, 14.2.4-25; Martyrdom of Ptolemaeus and Lucius, Martyrdom of Justin, Chariton, Charito, Evelpistus, Hierax, Paeon, and Liberian; Dio 54.3.1, 60.29.4 (Tac. Ann. 11.1 relates to the same case). Female: Sen. Controv. 9.5.15; Tac. Ann. 2.34.3; Plin. 1.5.5, 6.31.4-6, 6.33.2-6, 7.6.8-13; Suet. Claud. 15.2; Gell. NA. 3.16.12. Cases in which the specific court is not mentioned but an educated guess is possible: Sen. Controv. 2.5.13 (quaestioT); Quint. Inst. 4.1.19 (court of Queen Berenice?), 7.2.24 (quaestio?), 8.5.17 (centumviral court?), 9.2.34 (centumviral court?); Tac. Ann. 4.22.4 (quaestio, though perhaps senate?); Juv. 6.638-640 (quaestio or emperor?); Suet. Aug. 33.1 (emperor?), Vesp. 13 (emperor?).

9 Emperor's court: Sen. Controv. 7.5.12; Acta Isidori; Jos. AJ. 17.317-320, 344, BJ. 2.245-246=AJ. 20.134-136; Tac. Ann. 14.50; Plin. Ep. 4.22.1., 6.22.1-6, 6.31.3, 6.31.4-6, 6.31.7-12; Suet. Aug. 51.2, Tib. 8.1, Claud. 15.2 (3 cases), 15.4; Fronto Ad. M. Caes. 3.3.2 4; Gell. NA. 3.16.12; Dio 60.29.4; Quaestio-: Quint. Inst. 10.1.22; Tac. Ann. 3.38; Suet. Aug. 56.4, Tib. 8.1; Dio 54.3.1; centumviral court: Sen. Controv. 9.5.15; Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to the same case); Plin. Ep. 1.5.5, 1.18.3^, 5.1.6-8, 6.33.2-6. We also hear of cases before the praetor: Quint. Inst. 6.3.78; Tac. Ann. 2.34.3; Gell. NA. 1.22.6(?); cases before the praefectus urbi: Gell. NA. 11.7.3; Martyrdoms of Ptolemaeus and Lucius; Martyrdoms of Justin, Chariton. Charito, Evelpistus, Hierax, Paeon, and Liberian; cases before a representative of the emperor: Quint. Inst. 6.3.100; Plin. Ep. 7.6.8-13; cases before a single judge: Sen. Clem. 1.9.10; Gell. NA. 14.2.4-25.

10 Male: Sen. Controv. 2.5.13; Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to the same case), 6.1.50, 7.2.24, 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - connected to the same case); Jos. BJ. 2.245-246=AJ. 20.134-136; Tac. Ann. 3.36.2-3, 3.38, 14.50; Plin. Ep. 4.22.1, 5.1.6-8, 6.22.1-6, 6.31.4-6, 6.31.7-12, 6.33.2-6, 7.6.8-13; Suet. Aug. 33.1, 51.2, 56.4 (Dio 55.4.2, Macrob. Sat. 2.4.27 - connected to the same case), Suet. Aug. 56.4 (another case in the same passage), Tib. 8.1 (case involving Fannius Caepio, which is also reported in Dio 54.3.6), Claud. 15.2, Claud. 15.4, Vit. 7.2; Fronto Ad. M. Caes. 3.3.2-4, 5.49.1; Gell. NA. 14.2.4-25; Martyrdom of Ptolemaeus and Lucius, Martyrdom of Justin, Chariton, Charito, Evelpistus, Hierax, Paeon, and Liberian. Female: Sen. Controv. 9.5.15; Quint. Inst. 6.1.50; TH 13, 14 (TH 13 and 14 are related to the same case); Tac. Ann. 3.36.2-3, Juv. 6.638-640; Plin. 6.31.4-6, 6.33.2-6, 7.6.8-13; Gell. NA. 3.16.12. Cases in which the charge is not clearly supplied but an educated guess is possible: Sen. Controv. 4.pr.10 (stuprum?); Quint. Inst. 9.2.34 (inheritance?); Acta Isidori (maiestas?); Jos. AJ. 17.317-320, 344 (various charges?); Tac. Ann. 2.34.3 (financial?); Plin. Ep. 7.19.5 (maiestas?); Dio 54.3.1 (maiestas?); Quint. Inst. 8.5.17 (inheritance or murder?), 9.2.34 (inheritance?); Tac. Ann. 2.34.3 (financial?), 4.22.4 (poisoning?).

11 Male defendants: Sen. Controv. 2.5.13, 4.pr.10, 7.4.7, 7.5.12, 7.6.22, 9.4.19; Quint. Inst. 4.1.11 (7.2.5,26; Tac. Dial. 38-2 — connected to the same case), 6.1.21, 6.1.50, 6.3-78 (Sen. Controv. 2.4.11 — may refer to the same case or to a different one), 6.3.72, 6.3.100, 7.2.24, 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 — connected to the same case); Acta Isidori; Jos. AJ. 17.317-320, 344; Jos. BJ. 2.245-246=AJ. 20.134-136; TH 6; TPSulp 13, 14 (TPSulp 13 and 14 may refer to the same case), 15; Tac. Ann. 3.38, 14.50; Plin. Ep. 4.22.1, 5.1.6-8,

6.22.1- 6, 6.31.3, 6.31.4-6, 6.31.7-12, 7.6.8-13, 7.19.5; Suet. Aug. 33.1, 51.2, 56.4 (Dio

55.4.2, Macrob. Sat. 2.4.27 - connected to the same case), Suet. Aug. 56.4 (another case in the same passage), Tib. 8.1, Tib. 8.1 (another case and also reported in Dio 54.3.6), Claud. 15.2 (2 men), Claud. 15.4, Vit. 7.2; Fronto Ad. M. Caes. 5.49.1; Gell. NA. 14.2.4-25; Martyrdom of Ptolemaeus and Lucius, Martyrdom of Justin, Cbaritorn. Cbarito. Evelpistus, Hierax, Paeon, and Liberian; Dio 54.3.1, 60.29.4 (Tac. Ann. 11.1 relates to the same case) 73.12.2. Male plaintiffs: Sen. Controv. 2.4.11, 7.6.22, 9.4.18; Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to the same case), 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - con­nected to the same case); Acta Isidori; TH 6; TPSulp 13, 14 (TPSulp 13 and 14 may refer to the same case), 15; Tac. Ann. 2.34.3, 3.36.2-3, 14.50; Plin. Ep. 4.17.1-4, 5.1.6-8,

6.22.1- 6, 6.31.4-6, 6.31.7-12, 6.33.2-6; Suet. Tib. 8.1 (Tiberius), Claud. 15.2, Vit. 7.2; Gell. NA. 14.2.4-25. A case where it is likely the mentioned litigant is the defendant: Suet. Vesp. 13. In Quint. Inst. 9.2.34 it is possible that Publius Novanius Gallio is a plaintiff. In Pliny's letter, 1.18.3^, we cannot identify the roles played by lunius Pastor and the men who are of great influence and friends of the emperor. In Fronto's letter, Ad. M. Caes. 3.3.2^, it is difficult to determine the participants in the case involving Herodes, and we can say nothing with certainty as to the roles each party undertook.

12 Female defendants: Sen. Controv. 9.5.15; Quint. Inst. 4.2.106 (6.1.20, 10.1.22 connected with the same case), 6.1.40, 8.5.16, (9.4.31 connected with the same case), 8.5.17, 9.2.34; TH 13, 14 (TH 13 and 14 are related to the same case); Tac. Ann. 2.34.3,

3.36.2- 3, 4.22.4; Juv. 6.638-640; Plin. Ep. 4.17.1-4, 6.31.4-6, 6.33.2-6; Gell. NA. 3.16.12. Female plaintiffs: Quint. Inst. 6.1.50; TH 13, 14 (TH 13 and 14 are related to the same case); Plin. Ep. 6.33.2-6, 7.6.8-13. Cases where it is likely the mentioned liti­gant is the defendant: Plin. Ep. 1.5.5; Suet. Claud. 15.2. In TH 13 and 14 Petronia is likely the plaintiff, Calatoria Themis, the defendant. See Metzger (2005) 159.

13 Sen. Controv. 2.4.11, 7.6.22, Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 - connected to the same case), 6.1.50, 10.1.22 (Suet. Aug. 56.3, Plin. NH. 35.164 - connected to the same case); Acta Isidori; Jos. AJ. 17.317-320, 344; Jos. BJ. 2.245-246=AJ. 20.134-136; TH 6, TH 13, 14 (TH 13 and 14 are related to the same case); TPSulp 13, 14 (TPSulp 13 and 14 may refer to the same case), 15; Tac. Ann. 2.34.3, 3.36.2-3, 14.50; Plin. Ep.

1.18.3- 4, 4.17.1-4, 5.1.6-8, 6.22.1-6, 6.31.4-6, 6.31.7-12, 6.33.2-6, 7.6.8-13; Suet. Tib. 8.1 (Caepio case - also reported in Dio 54.3.6), Vit. 7.2; Fronto Ad. M. Caes. 3.3.2-4; Gell. NA. 14.2.4-25; Philostr. VS. 2.30.622-3. In two cases, two individuals are men­tioned. While in each case one is clearly a litigant of the dispute, it is not possible to conclusively identify the other individual as the opponent. If we do accept this identifica­tion, then one party from each side is identified: Quint. Inst. 9.2.34, Suet. Claud. 15.2 (woman refusing to recognize son).

14 Kelly (1976) 71-92.

15 Acta Isidori; Jos. AJ. 17.317-320, 344; Plin. Ep. 6.22.1-6.

16 Sen. Controv. 2.4.11, Quint. Inst. 6.1.43, 6.3.78; Tac. Ann. 3.38.2; Plin. Ep. 6.31.3.

17 TPSulp 13-15; Plin. Ep. 6.31.7-12; Suet. Aug. 56.4.

18 Quint. Inst. 4.1.19; Tac. Ann. 2.34.3, 4.22.4; Plin. Ep. 1.5.5, 4.17.1-4.

19 TH 13 and 14; Plin. Ep. 6.31.4-6; Quint. Inst. 8.5.17-19.

20 Petronia: TH 13-15; Archelaus: Suet. Tib. 8.1; Dio 57.17.3; PIR² A 1023; Berenice: Quint. Inst. 4.1.19. This case likely took place sometime when she was in Rome between 75 and 79 (Dio 66.15.4, 66.18.1).

21 Millar (1977) 228-240 considers this difficulty.

Suet. Ner. 7.2; Tac. Ann. 12.58.1—2.

Suet. Tib. 8.1.

Sen. Controv. 7.5.12.

CIL 9.5420. The case involving Herodes Atticus (Fronto Ad. M. Caes. 3.3.2) must be mentioned as well. This case, however, is complicated still further by our inability to determine if the Athenians were directly involved in the case itself.

Pliny represented Comum and Firmum (2.5.3, 6.18.1), but he is silent about the court. Perhaps this silence proves it was not in the emperor's court, unless appearing in that court was so common as to not warrant comment. Domitius Afer possibly represented the people of Augusta Taurinorum (Charis I p. 184B = 145K).

Plin. Ep. 6.18.1.

Sen. Ira 3.33.1. See also Quint. Inst. 8.3.14.

Mart. 2.32.5; Juv. 7.158-170, 13.135-139, 13.174-179, 16.40^1; Plin. Ep. 4.12.2^. Among the cases already considered, several are monetary in nature: Quint. Inst. 6.1.50; Tac. Ann. 2.34.3(?), 3.36.2-3; Fronto Ad. M. Caes. 5.49.1; Gell. NA. 14.2.4-25.

Quint. Inst. 11.1.58; Juv. 15.135-137. It is puzzling that we do not hear of more cases. The role of the tutor may, in fact, hide young clients in the historical record. All children had tutors, boys until age 14, girls until age 12, at which time the latter entered tutela mulieris. A tutor served as a ward's representative in a legal dispute, i.e. he was the actual party of the suit in place of the ward (Gai. Inst. 4.99). Thus, children were likely involved in much litigation, but since the tutors were their representatives we hear only of them and not of the children. A child can be identified as a litigant in only one case: Quintilian (Inst. 6.1.46) mentions an advocate who carried his child client around the court for dra­matic effect. Since the child was of a size to be carried, a tutor surely was involved.

Mart. 2.32.3—4; Juv. 16.36-39; Suet. Aug. 33.2. Among the cases used in the statistical analysis: Quint. Inst. 4.1.11 (7.2.5, 26; Tac. Dial. 38.2 also refer to same case), 8.5.17(?), 9.2.34 (?); Plin. Ep. 7.6.8-13.

Quint. Inst. 6.3.32; Mart. 10.87.11-12; Juv. 3. 288-298, 7.115-117. Among the cases used in the calculations at the opening of this chapter: TH 13 and 14; Suet. Claud. 15.2. Quint. Inst. 11.1.66; Suet. Claud. 25.1; Dio 68.1.2.

Sen. Ira 3.33.1; Quint. Inst. 4.1.42, 11.1.58, 66.

Sen. Controv. 2.6.10.

Quint. Inst. 11.1.58.

Sen. Ira 2.7.3. Among the cases included in this chapter's earlier calculations, we also hear of a daughter, Attia Viriola (Plin. Ep. 6.33.2-6), attacking her father's will.

Sen. Ira 2.7.3; Quint. Inst. 11.1.61. One case used in the calculations at the opening of this chapter involved Curianus (Plin. Ep. 5.1.6-8) challenging his disinheritance by his mother. Mart. 10.87.13.

Juv. 6.242—43: ““nulla fere causa est in qua non femina litem movent. Accusat Manilia, si rea non est’’, “rarely is there any case in which the suit is not stirred up by a woman. If Manilia isn't the defendant, she accuses.”

For previous discussion of this topic see the excellent contributions of Kelly (1966) 1-84 and Garnsey (1970) 207-218.

Suet. Aug. 29.1, Vesp. 10.

Juv. 16.47.

There were requirements concerning how much time litigants would be allowed for travel to Rome. The basic rate used was twenty miles per day (Dig. 2.11.1, 50.16.3.pr.).

Litigants from out of town did not always make the trip themselves to Rome. In TH 27 we find that Lucius Faenius Eumenes and Gaius Sulpicius Faustus had both appointed cognitores (agents) to forward their disputes before the courts in the Forum of Augustus. It appears clear from this text that if litigants were using agents, the vadimonium for the transfer was made between the two agents directly. We do not know if their status as agents would have been explicit in the document; no such examples survive. If their role as agents was not indicated, it may be that among other surviving vadimonia we are, in fact, finding agents rather than litigants. We may have one vadimonium in which an agent is one of the participants. Among the vadimonia surviving from a lawsuit in which we know (from various other documents in the collection) that Calatoria Themis and Petronia lusta were the litigants (TH 13—15) we find a man, M. Calatorius Speudon, making a vadimonium with Petronia to appear in the Forum of Augustus. The similarity of his name to Calatoria suggests he was her relative. It is possible that he was acting as a cog­nitor for Calatoria as Metzger (2005) 156 suggests. Unfortunately, we cannot rule out the possibility that Calatoria had died by this time, as it appears a year had passed since the earlier vadimonia, and he had inherited the case from her and thus was the litigant.

For additional discussion of this passage see Kelly (1966) 49—50; Garnsey (1970) 217-218.

Sen. Controv. 10.1.7.

Sen. Controv. 10.1.2.

Mart. 2.32.1-9.

Plin. Ep. 9.13.4.

Sen. Controv. 10.1.7.

Sen. Controv. 7.4.7.

Sen. Controv. 10.1.7.

Ov. Nux 41—42. In the late republic some criminal laws seem to have included praemia (rewards) for litigants who were successful in prosecuting individuals under those laws. Among these rewards were provocatio (the right of a citizen in the provinces to appeal his case to a Roman magistrate), citizenship, and promotion in senatorial rank. We hear of only one occasion when a reward of this nature may have been given: a freedman is per­mitted to sit in the theater seats reserved for magistrates’ attendants, located behind the fourteen rows of the equites, after he has successfully prosecuted an equestrian (Tac. Ann.

16.12.2. The specific charges are unknown. For discussion of praemia in the republican period see Russell (1950); Alexander (1985).

FIRA 1.44. col. II, 11—18. Claudius introduced measures to combat the practice: FIRA 1.44. col. III. 4—9. See also Suet. Claud. 15.2; Dio 60.28.6.

Quint. Inst. 7.2.30, 12.9.10.

Quint. Inst. 7.2.33.

Fronto Ad. M. Caes. 3.3.2—3.

Sen. Clem. 1.9.10.

Hor. Sat. 2.1.47—50.

Suet. Vit. 7.2.

Sen. Controv. 2.5.17, 3.pr.14; Plin. NH. 16.91.242; Quint. Inst. 6.1.50. See Tac. Ann. 3.22; Suet. Tib. 49.1 for Manius Aemilius Lepidus’ unsuccessful defence of his sister, Aemilia Lepidia, in the senatorial court. Vipstanus Messala also appeared in the senate to support his brother, Aquilius Regulus (Tac. Hist. 4.42). However, Tacitus does not make the nature of the hearing, nor Vipstanus’ actual involvement, clear.

Suet. Aug. 56.4; Dio 55.4.2; Macrob. Sat. 2.4.27.

Macrob. Sat. 2.4.27.

E.g. respectively, Gell. NA. 1.22.6; Hor. Sat. 1.9.74—78.

Quint. Inst. 6.3.72.

Val. Max. 8.3.1—3.

TH 15.

Tac. Ann. 2.34.3

Sen. Controv. 3.pr.5.

Plin. Ep. 4.22.2, 6.22.2

Sen. Controv. 7.5.12; Jos. BJ. 2.245—246; Plin. Ep. 6.31.11; Suet. Claud. 15.2, 3.

Quint. Inst. 6.3.78. Based on Suet. Controv. 3-pr.5 it is likely that Cassius was the plaintiff. E.g. Quint. Inst. 4.5.20, 6.1.37, 6.1.39, 6.1.46, 7.2.5; Suet. Claud. 15.2; Gell. NA.

1.22.6, 14.2.7.

Plin. Ep. 4.17.1-4.

Suetonius (Claud. 15.2) reports that Claudius was prone to decide in favor of the present party when one was absent, without waiting to hear if the latter's reason was valid. It is unclear whether Claudius ruled in this way if the absent litigant's advocate was present. It was perhaps the advocate's job to plead his client's excuse — in which case Claudius may have ruled against a litigant's case even if his advocate were present.

Hor. Sat. 1.9.35—42.

For more in-depth discussion of this passage see Metzger (2005) 166—171.

Ov. Ars Am. 1.460, Fast. 1.22; Mart. 1.49.35, 2.24.2, 5.16.6, 12.52.2.

Plin. Ep. 6.23.1.

Suet. Claud. 15.4.

Tac. Ann. 11.5.2.

Suet. Claud. 15.2: “palliatum". This is an adjective derived of the noun pallium, which was the Latin word for the Greek himation, the outer garment of characteristic Greek dress.

Tac. Dial. 12.1; Juv. 15.131—135. Adopting such clothing as a defendant dates back to the republican period, e.g. Cato Orig. fr. 107; Cic. Cael. 4, Clu. 18.

Mart. 2.36.3, 2.74.1—7. The terminology found in connection with both clothing and toi­lette of defendants is difficult. The two words most commonly found are sordes and squalor. The problem is their similar nature. Quintilian (Inst. 6.1.33) uses both the terms in one pas­sage, which suggests that he believed them to apply to different things; I would then suggest that perhaps sordes referred to clothing while squalor referred to toilette. Further dis­cussion of the complicated vocabulary associated with mourning clothes is found in Olson (2006). I thank Dr. Olson for providing me with a copy of this study before its publication. See Ov. Am. 3.9.52; Tac. Ann.16.10; Apul. Met. 4.34; Treggiari (1991) 489—490. For visual representations of mourning women with loosened hair see the marble relief found in Paris depicting a death-bed scene, and the famous marble relief found in Amiternum depicting a funeral procession. For images of these reliefs see Toynbee (1971) pls. 10, 11. E.g. Tac. Ann. 13.32.

Quint. Inst. 6.1.30, 33.

Sen. Controv. 10.1.7.

Suet. Aug. 32.2.

FIRA 1.44, col. II, 14; Smallwood (1967) no. 367. See also Suet. Claud. 15.2; Dio

60.28.6.

Suet. Vit. 8.1.

Quint. Inst. 6.3.78.

Gell. NA. 1.22.6.

Gell. NA. 14.2.7—8.

Juvenal (6.244—245) mentions that women are always full of advice for their advocate, and even try to write the opening of the speech for him. It is possible that the women Juvenal had in mind were attempting to give advice within the courtroom, but since this is not clearly stated, the passage has not been included here.

Quint. Inst. 4.5.20.

Quint. Inst. 4.5.20. Quint. Inst. 6.1.37.

Quint. Inst. 6.1.38.

Sen. Controv. 9.6.12, 10.1.6; Tac. Dial. 12.1; Juv. 15.136—137.

Quint. Inst. 6.1.42.

Sen. Controv. 9.6.12; Quint. Inst. 6.1.34.

Quint. Inst. 6.1.46.

4 THE JUDGE

Much work has been done over the last couple of decades to fill the gaps in our knowledge of the jurisdictions of Rome's judicial officers and the city's legal procedure, using the evi­dence from city charters found in Spain dating to the first century AD, which are believed to have been modelled on the system used in Rome. See Gonzalez (1986); Johnston (1987); Birks (1988); Rodger (1990), (1991), (1996), (1996a); Zanon (1992); Crawford (1995); Burton (1996); Metzger (1997), (2005); Wolf (2000).

For examination of the recuperatores see Lemosse (1944) 175—180; Bongert (1952); Kelly (1976) 40-70; Johnston (1987) 67-70; Birks (1988) 43--45, 55-60; Rodger (1991) 87-89; Metzger (1997) 75-76. With the evidence we have, it is clear that a procedure for the selection of recuperatores was included in the Lex Iulia de iudiciis privatis introduced by Augustus, but on which we are very poorly informed. Whether this procedure deviated in substantial ways from the republican method is unknown. For recuperatores in the Republic see Frier (1985) 199-206; Lintott (1990).

See e.g. Quint. Inst. 5.2.1, 12.13.1; Plin. Ep. 6.33.3; Kelly (1976) 1-39; Gagliardi (2002) passim for their origin and jurisdiction. Ovid's judicial involvement as one of the tresviri (capitales?'}, one of the decemviri stlitibus iudicandis, a judge who heard private cases (I sug­gest he was a iudex ex V dec), and also as one of the centumviri, supports the hypothesis that the centumviri were drawn from the album iudicum in the imperial period.

See e.g. Garnsey (1970) 17-64; Talbert (1984) 460 487.

For the tresviri capitales see Cascione (1999). For the decemviri see Gagliardi (2002).

See for the urban prefect: Garnsey (1970) 90-98.

See e.g. Garnsey (1970) 65-90; Millar (1977) 507-549; Wolf (1994).

The best complete work on the unus iudex still is Mazeaud (1933). See also Kelly (1966) 102-117, (1976) 112-133; Garnsey (1970) 207-218.

Quintilian (Inst. 8.3.14) and Juvenal (13.8-9, 15) certainly give a sense of the ubiquity of such cases. See the interesting chapter of Kelly (1976) entitled “The Statistics of Roman Litigation”, 71-92. Also Kelly (1976) 121-133.

E.g. see Plin. Ep. 7.6.8-13; Gell. NA. 12.13.1-29.

Girard (1913) is the best complete study of these laws.

Augustus lowered the minimum age requirement from 30 to 25: Suet. Aug. 32.2. Due to Augustus' establishment of 25 as the minimum age for judges for criminal trials, in his Edict of Cyrene (FIRA 1.68, l.16), and mention of the same age minimum for recuperatores in an oration commonly attributed to Claudius (FIRA 1.44, l. 3), modern scholars con­clude that Suetonius' text is corrupted. See Brunt (1961) 78 n. 48; Carter (1982) 139; Demougin (1988) 459-460. The maximum age limit is based on what is found in several laws both republican and imperial in date, which suggest this was the standard age set for exemption from such public duties: e.g. Lex Repetundarum, l. 13; Lex Col. Gen., Ch. 98; Lex Irni, Ch. 83. Citizenship had to be in one's family for at least one previous generation; new citizens were not permitted: Plin. NH. 33.7.30.

Dio 59.9.5; Demougin (1988) 456. This is discussed further below.

Suet. Aug. 32.3.

Lex Acilia de repetundis (c. 122 BC) l. 13; Dig. 1.9.2.

The latest censor mentioned (Tac. Ann. 3.30.2) as having performed this duty was L. Volusius Saturninus, who held the office sometime between 5 and his death in 20 (PIR V 660).

Plin. NH. 29.8.18; Suet. Aug. 29.3, 32.3, Tib. 41, Calig. 16.2, Claud. 15.1, 16.2; Galba 14.3, Dom. 8.1. For brief discussion of the censorial powers and the emperor see Millar (1977) 293-295.

The surviving fragment of the lex Aurelia of 70 BC suggests that during the republican period the praetor urbanus constructed the decuries from those eligible. We cannot expect that the emperor examined those of all three financial categories. The praetor is a natural alternative, though admittedly we have little hard evidence. See Staveley (1953) 210-213.

Lex Acilia de Repetundis (c. 122 BC) l. 11.

Suet. Tib. 41; Millar (1977) 283.

Suet. Claud. 15.1; Ulp. Frag. Vat. 197-198.

Frontin. Aq. 101: "�Itemque cum viarum curatores frumentiqueparte quarta annipublico fungan­tur ministerio, ut curatores aquarum iudiciis vacentprivatis publicisque'’, “�In the same way that when the commissioners of the streets and grain distribution perform their public office for one quarter of the year they are exempt from judging private and public cases, so too shall the water commissioners be exempted.'”

Dig. 4.8.3.3 and 4.8.4 state that the praetor can compel all magistrates lower in authority than himself to undertake a case. The passage refers specifically to an arbiter. Whether this makes a difference is unknown.

Bringmann (1973) 240.

There is contention over whether each decury consisted of a mix of senators and equestri­ans, or that only one decury included the senators and some equestrians and the other two were made up solely of equestrians. For opinions see: Jones (1972) 89; Birks (1988) 53; Demougin (1988) 448.

Suet. Aug. 32.3. This addition was likely an element of the leges Iuliae.

Suet. Calig. 16.2. Those who support the lower financial qualification for this decury: Pflaum (1969) 153, 187; Demougin (1988) 445. Others avoid the problem, e.g. Birks (1988) 53-54.

Plin. NH. 33.7.30.

Suet. Tib. 41.

I have compiled a list of 143 such inscriptions, adding only slightly to the previous lists generated by Duncan-Jones (1967); Pflaum (1969); Burnand (1974); Demougin (1975), (1988), (1999). The inscriptions range in date from the early Julio-Claudian period to the mid-third century.

Demougin (1975) 177 notes that the use of the particle “de” within the various phrases (e.g. “iudici de IIII decuriis’’ or "iudici de selectis” seems restricted to the northern portion of Italy. See CIL 3.8261=ILS 2733, CIL 5.5128=ILS 6126=AE 1993, 800=AE 2001, 1084, CIL 5.7567=ILS 6747=AE 2000, 251. Another example is found in Gaul: CIL 12.1358. See Burnand (1974) 62. This variation is of little practical importance.

Henderson, M.I. (1963) 66; Demougin (1975) 449.

Dio 55.3.1-2.

Tab. Heb. ll. 8, 11-12. For further discussion of their inclusion in the Tabula Hebana see the classic article of Brunt (1961).

Plin. Ep. 4.29.

Demougin (1988) 449.

See Jones (1972) 88-90. The senate of the first and second century maintained a relatively steady size of 600 and thus at full strength would have been only one-sixth of the 4,000 in the decuries. Some of those no doubt also could claim exemption from duty. However, Augustus' assurance that the courts and these senate meetings not overlap suggests that the absence of those on the lists would make a senate meeting impossible. See Dio 54.13.4 and Talbert (1984) 131-134 on the size of the senate. Note also Dio 52.20.5. Plin. NH. 33.7.30: "divo Augusto decurias ordinante".

Hor. Sat. 1.4.121: “unum ex iudicibus selectis".

Plin. NH. 29.8.18: "XLV electis viris’’; Sen. Ira 2.7.3: "index... eligitur".

Ov. Am. 1.10.38: "selecti iudicis arcapatet'', "the purse of the selected judge lies open”; Tr. 2.132: "nec mea selecto iudice iussa fuga est'', "my flight was not ordered by a selected judge”. No manuscript variations appear.

CIL 5.5050, ll. 32—33: “non nulli collecti in decurias Romae res iudicare"·, ILS 206: “[a]llecti"; Smallwood (1967) #368: “llecti". Allecti is the preferred reading.

Demougin (1975), (1988).

The variations include “iudex in V dec" — “iudex de V dec" — “iudex dec V".

The main efforts before Demougin's to provide some sort of systemization were made by: Staveley (1953); W. Seston, Communication a L’Institut de Droit Romain de la Faculte de Droit de Paris du 14 mars 1958 (not published); and Pflaum (1969). Staveley (1953) 208—209 argues that all selecti were of equestrian status. As Demougin (1975) 186 points out, inscriptions commemorate selecti who clearly were not equestrian.

E.g. AE 1946, 2; AE 1950, 156; CIL 5.7002; CIL 5.6788. For more extensive lists see Pflaum (1969) 187-188; Demougin (1975) 190-191.

AE 1897, 100= RIT 284: “ad]/lecto in qui[n]/que decuri(as) eq[uitum]/Romanor(um)"; CIL 5.7567=ILS 6747=AE 2000, 251; Tac. Ann. 14.20. CIL 5.7567, by referring to the “IIII decuriis", can be dated to AD 14-37, suggesting that such generalization came into prac­tice quite early. See Demougin (1988) 462-464 for further discussion.

CIL 9. 4973; AE 1950, 156.

Early: e.g. AE 1954, 140; CIL 5.7567=ILS 6747, CIL 6.2169=ILS 1320. Late: e.g. CIL 5.7375=ILS 6744, 8.6950, 11.1437=ILS 2166, CIL 11.1836=ILS 1332.

Burnand (1974) 174.

Pflaum (1969) 184-185.

CIL 10.1685=ILS 1397. See Pflaum (1961) 126-128; Demougin (1975) 147-148. Duncan-Jones (1967) 152; Jones (1972) 96; Millar (1977) 284. For further discussion of the quaestiones perpetuae in the Severan period see Garnsey (1967).

Plin. NH. 29.8.18; Sen. Ira 3.33.1. See also Hor. Sat. 2.7.53-56; Suet. Claud. 16.2 (judge from Greece).

For Africa see Pflaum (1969); for Gaul see Burnand (1974); Spain: e.g. CIL 2.2079=ILS 2713, CIL 2.4211=RIT 271=ILS 6936; Sardinia: CIL 10.7518=ILS 6764; Sicily: Alföldy (2005), CIL 10.7507 = ILS 6772.

Pannonia: e.g. CIL 3.726=ILS 1419, CIL 3.6476=AE 1987, 820; Asia: AE 1924, 82, AE 1972, 573=AE 1969/70, 595b; Bithynia and Pontus: IGR 3.63 = OGIS 528; Lycia and Pamphylia: IGR 3.778 = OGIS 567.

Demougin (1988) 458.

Demougin (1975) 175-177.

Claudius' edict concerning citizenship and the Anaunians (AD46): CIL 5.5050, ll. 32-33. See Sherwin-White (1939) 356-357.

Pflaum (1969) 195 also suggests that the Africans mention their adlection because it was the first time they were directly honored by the emperor.

Demougin (1975) 185, 190. Duncan-Jones (1967) 160 says that membership in the decuries “may sometimes have been titular" for those from the provinces. Pflaum (1969) 184, 187 seems to think that those who were adlected did not go to Rome; the title was merely honorific. However, Pflaum (1969) 191 seems subsequently to change his mind.

Ov. Tr. 2.95-96.

Ov. Tr. 4.10.33-34, Fast. 4.383-384. Clearly Ovid still planned on a senatorial career when he was tresvir. Whether he served as decemvir before or after his decision to perma­nently remain an equestrian is unknown. Pliny used the position of decemvir as a step in his political career. However, it is also true that Ovid, when he became decemvir, had held two offices in the Vigintivirate, instead of just one as was more common. Perhaps this is an indication of his alteration in career path. See Kenney (1969) 245-248 for discussion. Ov. Tr. 2.93-94.

Gell. NA. 14.2.1. We will return later to discuss this interesting passage.

Holford-Strevens (2003) 12. Burrus, the advisor to Nero, may also have been a member of the decuries. In 56 Burrus and Pallas, Agrippina’s former advisor, were charged with trea­son. Tacitus reports that Burrus “quamvis reus inter iudices sententiam dixit", “although a defendant gave his opinion among the judges". The court of this trial is not identified. Burrus’ involvement as a judge, however, suggests that it was the standing quaestio court and he participated as one of the equestrian judges. His voting among the judges while a defendant surely must have been illegal.

For discussion of the republican quaestiones see Jones (1972) 45—70. The lex Pompeia de vi called for the praetor of that court to select a special album of 360 judges, perhaps from the selecti (though the law does not specify), who then heard the evidence for three days. On the fifth day 81 names were drawn from that group, and these individuals then heard the speeches of the advocates. Then each litigant rejected five jurors from each decury and the remaining 51 voted. See Cic. Att. 8.16.2; Vell. Pat. 2.76; Plut. Pomp. 55.4; Dio 40.52.1; Jones (1972) 69.

On Augustus’ edict on the aqueduct at Venafrum (c. 18—11 BC) ll. 64—69, see FIRA 2.403; LexIrni., Ch. 89, see Gonzalez (1986).

Cic. Clu. 43.120.

This follows the procedure set out in the lex Irnitana. See Birks (1988) 41—45.

Suet. Aug. 29.1: “ut separatim in eo publica iudicia et sortitiones iudicum fierent", “so that pub­lic trials [i.e. trials of the quaestiones perpetuae] and the sortition of judges might be held there separately"; Dio 52.7.5, 54.18.2.

Birks (1988) provides a helpful, detailed examination of these issues.

Plin. NH. 29.8.18.

Jones (1972) 69—70. Strachan-Davidson (1912) 96—103 offers an excellent discussion of the seven methods used over the course of the Republic for empanelling a panel of judges. See also Ascon. Milo 39.21.

Girard (1913) 361, 363.

Gell. NA. 14.2.1.

Bringmann (1973) 235.

Ov. Tr. 2.89—96. This is discussed further below.

Dig. 5.1.12.2.

Dig. 4.8.41.

Quint. Inst. 11.1.43, 45; G. 4.105, 109; Dig. 4.8.7, 5.1.12.

Dig. 4.8.5.

Mazeaud (1933) 96—99.

Frag. Vat. 197-198.

Dig. 50.5.13.pr. It is possible that long-term ill health and holding a priesthood were valid excuses for exemption from the decuries as well, though no evidence states this. Plin. Ep.1.10.9 (likely whilepraefectus), 1.20.12, 6.2.7-8. (likely while curator - his use of the term iudex must then be taken as a generalized term rather than as applying solely to his activities as a magistrate); see Sherwin-White (1966) 109-110. On one occasion Pliny acted as assessor to the praefectus urbi in a case in which Ummidius Quadratus and Fuscus Salinator were the advocates (Ep. 6.11). Surprisingly, Pliny does not identify the praefectus urbi.

Dio 69.18.3; SHA. Hadr. 6.7, 9.4. Turbo became praefectus praetorio in 119. How long he held the post is uncertain. For discussion see Syme (1980) 67-74.

Augustus: Suet. Aug. 33.1, 51.2; Tiberius: Suet. Tib. 31; Dio 57.7.2, 6; Caligula: Suet. Calig. 38.3; Claudius: Jos. AJ. 20.134; Suet. Claud. 14, 15, 23.1, 33.1-2, 42, 46; Nero: Suet. Ner. 15; Vespasian: Suet. Vesp. 13; Dio 66.10.5; Domitian: Suet. Dom. 8; Dio 67.17.1; Trajan: Dio 68.10.2; Hadrian: Dio 69.3.6, 69.7.1; Marcus Aurelius: Dio 71.6.1; Septimius Severus: Dio 74.9.1, 75.15.5, 76.17.1. For detailed discussion of the emperor’s jurisdiction see Millar (1977) 507-549. Wolf (1994) has made a more recent contribution on Claudius as a judge. Another imperial figure is found within the Roman courtroom. Quintilian (Inst. 4.1.19) remarks that he spoke on behalf of Queen Berenice in a case which apparently she also heard as judge. Crook (1951) 169—170 does not believe she was judging the case but perhaps was attempting to utilize her influence merely by being present. This explanation is insufficient since Quintilian clearly includes this story under the rubric of occasions when judges were hearing cases in which their own interests were involved. Crook says that it was “hardly possible to suppose that a foreign princess” could be a civil iudex. However, one must remember that a unus iudex could be anyone the litigants agreed upon who met the cri­teria. The only criterion that Berenice did not meet was that she was a woman. The case must date to sometime between 75 and 79 when Berenice was in Rome (Dio 66.15.3, 66.18.1), though perhaps her time in the city was broken up into two visits.

Collinet (1934) 25—27 provides a list of those who acted as a unus iudex, in his opinion, during the republican and imperial period. Several passages (Hor. Sat. 2.1.47—50; Plin. Ep. 7.22.2; Front. Ad Am. 1.1.2) make mention of the participation of some as apparently single judges. However, the vagueness of the remarks permits of no sound conclusions.

Plin. Ep. 1.20.12, 6.2.7, 7.30.2. It may be argued that Pliny is referring to legal duties while serving as curator alvei Tiberis in Ep. 6.2.7.

Plin. Ep. 5.1.1-6.

Plin. Ep. 1.20.12, 6.2.8, 7.30.2. In the last passage Pliny states that he acted as “iudicem aut arbitrum”, “judge or arbiter”. Again, the appearance of both terms causes concern as to their similarity or uniqueness.

The jurisdictional and chronological issues associated with delegated authority are many and diverse. Regarding the abilities of the emperor to delegate, for example, see Millar (1977) 507-527.

Sen. Ep. 114.6.

Dio 59.8.4. See Millar (1977) 510.

Plin. Ep. 7.6.8-13.

See PIR²1 631.

The involvement of Suburanus is complicated by Pliny's implication that Suburanus had been involved with this case before this occasion. Suburanus was consul in 101 and 104, and praefectus praetorio previously (PIR² A 1366). His involvement may have been during one of these offices, which would then explain his participation in terms other than as a delegate of the emperor.

Gell. NA. 12.13.1.

Hor. Ep. 1.16.42.

Juv. 8.79-80; Quint. Inst. 1.pr.10.

There are several problems, highly technical in nature, surrounding our understanding of the “iudex qui litem suam facit”, “the judge who makes the case his own”. For discussion and attempted explanations see, e.g. Kelly (1966) 102-117, Robinson (1999).

E.g. Ov. Tr. 4.10.15.

Quint. Inst. 2.17.29, 4.5.3, 5.14.29, 8.2.13, 10.1.32, 11.1.45, 12.10.53.

Quint. Inst. 4.2.45. In 11.1.45 and 12.10.53 Quintilian also refers to the rustic origins of judges. He may, in these passages, be referring to other types of judges, since he does not specify those in the decuries.

Note that when the category of ducenarii was first added, only those who met that financial limit and were in Italy were eligible. When provincials were admitted to the decuries, those from the provinces who met the financial limit of the ducenarii could participate. Quint. Inst. 12.10.53.

Quint. Inst. 4.2.45-46, 11.1.45.

Quint. Inst. 8.2.13.

Suet. Claud. 16.2.

Quint. Inst. 5.14.29.

Sen. Ben. 3.7.7.

Juv. 7.116—117. The phraseology of the sentence suggests we must interpret this phrase in the plural and take it to refer to a panel of judges. See Ferguson (1979) 224; Courtney (1980) 364-365.

Plin. Ep. 7.30.2-3.

Plin. Ep. 1.20.12.

Quint. Inst. 4.2.45.

Sen. Ben. 3.7.7.

E.g. Plin. Ep. 7.6.8, Gell. NA. 12.13, Dio 59.8.4-5.

Suet. Tib. 41; Dio 59.9.5.

Suet. Claud. 16.2.

For extended discussion see Behrends (1969).

There is some controversy surrounding the utilization of a consilium by the praetors: Tellegen-Couperus (2001); Ducos (2003). For the emperor's court see e.g. Tac. Ann. 11.1; Plin. Ep. 4.22.1, 6.22.1, 6.31.1; court of the praefectus urbi: Plin. Ep. 6.11.1, Gell. NA. 11.7.3(?); court of the praetor: Gell. NA. 1.22.6(?); court of an unidentified magistrate: Dio 57.7.6; consilium domesticum (household court of private citizen): Sen. Clem. 1.15; Plin. Ep. 5.1.4.

E.g. emperors: Augustus (Sen. Clem. 1.15); Tiberius (Suet. Tib. 33; Dio 57.7.6); Claudius (Suet. Claud. 12.2). Consulars: Lucius Vitellius cos. 34 (Tac. Ann. 11.1; PIR V 500); Corellius Rufus cos. 78 (Plin. Ep. 5.1.4; PIR² C 1294); Sextus lulius Frontinus cos. II 98 (Plin. Ep. 5.1.4; PIR² I 322). Jurisprudents: Javolenus Priscus suff. 86 (Plin. Ep. 6.15.3; PIR² I 14); Titius Aristo (Plin. Ep. 1.22.6). Advocates: Plin. Ep. 1.9.2, 1.20.12, 4.22.1, 6.11.1, 6.22.1, 6.31.1; Gell. NA. 14.2.9.

E.g. Plin. Ep. 1.9.2.

Plin. Ep. 1.12, Gell. NA. 14.2.9.

See Sherwin-White (1966) 111-112, 272-273.

Gell. NA. 12.13.3.

Gell. NA. 14.2.1; Holford-Strevens (2003) 295.

Holford-Strevens (2003) 297. Favorinus mentions the work of another jurist, which Gellius apparently had not read (Gell. NA. 14.2.20). See Frier (1985) 217-218.

Plin. Ep. 6.33.9.

Gell. NA. 14.2.25.

Quin. Inst. 6.1.32, 6.1.40, 6.3.72.

Quint. Inst. 4.1.20.

Fronto Ad Am. 1.1.2-4.

Quint. Inst. 11.1.75.

Quint. Inst. 4.1.19.

Quint. Inst. 11.1.76; Dio 59.8.4. Also rehearing a case, though not on appeal: Quint. Inst. 11.1.77.

Quint. Inst. 11.1.75.

Tac. Dial. 5.1.

Quint. Inst. 4.1.18.

Garnsey (1970) deals with this topic in far more detail. In his effort to reach some conclu­sions Garnsey on occasion places his arguments on foundations that simply cannot supply adequate support, thereby revealing how little trustworthy evidence exists.

Gell. NA. 14.2.4-25. On this letter see Nörr (1996) 33-56.

Gell. NA. 14.2.5-6.

Gell. NA. 14.2.23.

Gell. NA. 14.2.25.

Garnsey (1970) 194. There were multiple praetors, however, and in some situations it was possible for a prospective litigant to approach a different one. This option might have addressed egregious prejudices of praetors, but it required that at least one praetor take a different stance. If the case brought together litigants of very unequal standing, the liti­gant of lower status would likely have encountered the same difficulty before any praetor. Quint. Inst. 4.1.18.

Quint. Inst. 1.pr.10.

It must be remembered that during the hearing of a case per se, the attention of the audi­ence would be focused for the most part on the advocates until a decision was to be rendered.

Plin. Ep. 10.2.1. Since this right was held by men like Pliny who, while close to the cen­tre of power, was hardly a heavyweight, we must assume that many other far better connected men also had been granted the right by various emperors over the years. In addition, there must have been at least some men who actually did produce three chil­dren. One cannot help but wonder, after estimating the number in these two groups — those with the grant but without the requisite children and those with the children — how many senators were left who were eligible to serve on the decuries once all the other valid excuses were also considered as well. The total number must indeed have been well below 600.

Ovid is but one example (Tr. 4.10).

They may have sought the position to benefit from bribes, a possibility which I consider below.

Suet. Tib. 51.

Suet. Claud. 16.2.

It is also possible that he felt trapped. If he was illustrious and a leading citizen, no doubt all around him assumed he had learned Latin as part of his education. To admit his igno­rance would have meant a great loss of face.

Suet. Claud. 15.1.

Ov. Tr. 2.89-96.

Hor. Sat. 1.4.120-123.

To complicate matters, the manuscripts do not consistently use selectis in this passage; elec­tis is also found (manuscripts M and II).

Pflaum (1969) 187-189; Demougin (1975) 195-197.

Pflaum (1969) 189-190; Demougin (1975) 192. The evidence showing these develop­ments cannot be covered in detail here. For further discussion see Pflaum (1969); Demougin (1975).

Demougin (1975) 191, 201.

Burnand (1974) 72.

Gell. NA. 12.13.1.

Gell. NA. 14.2.1, 25.

Quint. Inst. 5.13.6.

We do hear of unusually busy periods for the courts: e.g. Tac. Hist. 1.20; Suet. Vesp. 10; Dio 76.16.4.

Suet. Aug. 32.3.

Plin. NH. 33.7.33; Suet. Cal. 16.2.

Tac. Hist. 1.20; Suet. Galba 14.3.

For discussion see Kelly (1966) 89-97; Garnsey (1970) 16-100; Jones (1972) 91-118; Millar (1977) 507-537; Talbert (1984) 460-487.

For a list of sample cases see Jones (1972) 94 n. 23, 24. The last maiestas trial reported as held in a quaestio was that of Marcus Priscus in 22 BC: Dio. 54.3.1-4; Rutledge (2001) 21-22. The quaestio de sicariis et veneficiis was clearly functioning in 19. Piso assumed that his case would be heard there, but the case ended up in the senate due to Germanicus' family connections (Tac. Ann. 2.79-1—2, 3.10—12. For earlier references to this court in the imperial period see Sen. Controv. 9.6.12; Dio 56.24.7. The court is mentioned again in Seneca's Apocolocyntosis (14.1), suggesting its existence still in 54, though some caution is warranted. The quaestio de falsis also appears to have continued functioning as late as 61 (Tac. Ann. 14.40.1—41.3; Suet. Aug. 33.2). For discussion of the survival of the quaestio de adulteriis, which was established only during Augustus' reign, see Garnsey (1967). Dig. 48.1.8.

Suet. Aug. 32.3.

For discussion see Kelly (1966) 33-42.

This was one reason for restricting membership in the decuries to only the wealthiest classes (poorer members of Roman society could not afford to sit in a courtroom day in and day out without receiving pay) though social and political forces must not be excluded.

Single judge: Mart. 2.13; decuries: Tac. Ann. 1.75.1, 2.34.1; Juv. 13.1-4; Suet. Tib. 33.1; centumviri: Suet. Dom. 8. Scholars are divided in their interpretation of the Juvenal pas­sage. Ferguson (1979) believes the bribery took place in determining the order in which cases were heard. Courtney (1980) rather believes the bribery took place in the selection of the judges for the case. I see no reason to stray so far from the most simple method; the fallax urna surely means that the some of the votes of the judges going into the urn were bought.

Quint. Inst. 4.1.21.

Hor. Carm. 4.9.41-44.

Ov. Am. 1.10.38.

Tac. Ann. 1.75; Suet. Tib. 33. Also, in 21 Tiberius (Tac. Ann. 3.38.2) rebuked the judges of the quaestio, which heard cases concerning adultery, for acquitting one Antistius Vetus. While Tacitus makes no mention of bribery and in this section is portraying Tiberius as unfairly prosecuting individuals, Tacitus does state that Antistius was “e primoribus Macedoniae", “from the leading [men] of Macedonia”, which perhaps hints at some sort of influence playing a role in his acquittal.

Suet. Dom. 8.1. Rolfe's 1914 Loeb translation of this passage is misleading with regards to the technical terminology.

Quint. Inst. 8.2.13, 11.1.45.

Quint. Inst. 8.2.22.

Quint. Inst. 4.1.33, 4.1.48, 4.1.73-74.

Suet. Claud. 33.2.

Quint. Inst. 6.1.7.

Quint. Inst. 6.1.10.

Quint. Inst. 6.4.19, 12.10.56.

Quint. Inst. 4.2.77, 6.2.7, 12.10.62.

Plin. Ep. 9.23.1.

Gell. NA. 15.5.4.

Outside of Rome, we do find some records of rulings delivered by the judge, e.g. CIL 9.2827=ILS 5982: Helvidius Priscus (likely the executed father of Helvidius Priscus, the friend of Tacitus and Pliny - see PIR² H 59) served as an arbiter in a boundary dispute between Q. Tillius Eryllus and M. Paquius Aulanius. Only the opening survives, in which mention is made of a previous document dating to 19.

Gell. NA. 14.2.16-19.

Philostr. VS. 2.30.622-623.

Sen. Controv. 9.6.12; Suet. Claud. 15.3.

Schäfer (1989) 151-152, 255-256, no. 10, Taf. 33, 2; Coarelli (2000) pl. 86 (LIV/LXXV).

5 THE AUDIENCE

Father: Fronto Ad Am. 1.27.1; wife and child: Mart. 6.38. It is notable that Pliny's wife (Ep. 4.19.3) — who is in Rome and obviously interested — does not attend but rather sends a person to report about the reception of his speech and the verdict; meantime, Regulus' wife does attend. Does Calpurnia's delicateness, mentioned elsewhere in the letters, sug­gest the courts were too rowdy for her?

E.g. Quint. 11.3.131, 12.8.2. It is difficult to distinguish between clients and members of the paid audience.

Plin. Ep. 6.6.6. The only other known reference to Julius Naso is as the recipient of letter 4.6 (Sherwin-White [1966] 362).

Quint. Inst. 11.3.131.

Quint. Inst. 10.5.19. See also 10.1.122. The ancient informal associations tirocinium fori and contubernium, which were founded on relationships between established men and upcoming youths and served to develop contacts, no doubt found their way into the court environment as well. For discussion of Quintilian's upbringing see McDermott and Orentzel (1979) 9—12, and for Fronto's involvement in such groups, Champlin (1980) 78. Plin. Ep. 6.6.6.

Pliny's silence in this regard is puzzling and must be attributed to a chance absence in the historical record, since he studied under Quintilian: Plin. Ep. 2.14.9, 6.6.3.

Tac. Dial. 2.1.

Tac. Dial. 1.2—3.

Plin. Ep. 2.14.10—11. Note that use of the verb adsectari indicates a youth accompanying an orator, not a junior advocate.

Quint. Inst. 8.5.21.

Plin. Ep. 4.16.2.

Fronto Ad Am. 1.27.1.

E.g. Quint. Inst. 1.5.43, 4.2.28, 5.13.49, 6.4.6; Plin. Ep. 5.9.2, 6.33.2; Gell. NA. 14.2.7. Quint. Inst. 6.4.6. The most basic outline of courtroom procedure, which could be varied for a myriad of reasons, consisted of the delivery of speeches by both sides (prosecution/plaintiff first), examination of documents and witnesses, cross examination, and the altercatio, debate. Quintilian here speaks of the altercatio. See Kennedy (1972) 14—15 for very general discussion.

Quint. Inst. 12.3.2.

Quint. Inst. 11.3.131.

He mentions monitores twice: Quint. Inst. 6.4.9; 12.3.3—4.

Quint. Inst. 6.4.9.

Quint. Inst. 6.4.8: In the altercatio the advocate must be quick-witted and thoroughly understand the facts of the case, “alioqui et tacendum erit saepe et aliis subiicientibus (plerumque autem studio loquendi fatue modo) accedendum", “otherwise often he will have to fall silent and accept the suggested ideas of his subordinates (most of which are idiotic because of overzealousness)".

Plin. Ep. 2.14.6.

Quint. Inst. 1.5.43, 6.4.7, 11.3.156. In the emperor's employment apraeco relayed the emperor's messages among large crowds as well as attempting to quieten audiences on occasion (Suet. Aug. 84, Dom. 13.2; Dio 69.6.1-2). Aldrete (1999) 78-79, 122-123 dis­cusses the praeco primarily in the context of the emperor's entourage. At Carthage (and so, beyond the scope of this study) Apuleius (Flor. 9.10-12) mentions the efforts of the praecox of the proconsul (apparently from atop the proconsul's tribunal) to quieten the audience by bellowing.

Quint. Inst. 1.5.43.

Wives: Quint. Inst. 4.1.28, 6.1.33; children: Quint. Inst. 4.1.28, 6.1.33, 11.3.174; mother: Quint. Inst. 8.5.21; Juv. 7.145; parents: Quint. Inst. 6. 1.30, 33; kinsfolk: Quint. Inst. 6.1.33, 11.3.174.

Quint. Inst. 4.1.28, 6.1.30, 33.

Quint. Inst. 4.1.30. A very fragmentary relief depicts just such a courtroom scene (see Schafer [1989] 255-256, Taf. 33, no. 10). At the far right edge of the scene a man, the defendant, kneels with his arms extended forward. On the missing right portion of the scene it is likely (based on other similar surviving scenes) that a figure seated on a plat­form, the judge, faced the defendant. Behind the defendant stand six figures. At the far left stands a man in a toga, the advocate, extending his right arm with a pointed finger towards the defendant. Between the advocate and his client stand three women and two children, all of whom face the judge. The clothing and hairstyles of two of the women suggest they vary in age, and portray a wife and perhaps a teenage daughter. Too little detail survives of the third woman to allow any suggestions regarding age or relation to the defendant.

Quint. Inst. 6.1.47.

Quint. Inst. 6.1.41.

Juv. 7.145-147.

Denny (1994) 290.

Quint. Inst. 5.10.26.

Quint. Inst. 5.7.32.

Plin. Ep. 6.33.3.

Dio 54.30.4.

Suet. Aug. 56.3.

Mart. 8.76.

Fronto AdM. Caes. 5.59.1.

The person who could grant the most prestige to a litigant’s cause was the emperor. We know from Suetonius and Cassius Dio that Augustus appeared on occasion to support friends who were being tried. The most famous case is the trial of Nonius Asprenas on charges of poisoning (Suet. Aug. 56.3; Dio 55.4.3, 57.11.7). lulius Bassus (Plin, Ep. 4.9.7), going up on repetundae charges, may have been hoping for such visible support when he made a point of explaining to Trajan his strict criteria for accepting gifts from provincials. Pliny does not mention Trajan’s attendance.

Juv. 7.106-110. For elucidation of this passage see Courtney (1980) 363.

Quint. Inst. 12.5.6.

Plin. Ep. 1.16.1.

Plin. Ep. 6.2.3.

Plin. Ep. 2.14.9-11.

Plin. Ep. 2.14.4-8.

Berger (1953) 573. E.g. Cic. Rosc. Am.; Nep. Att. 6.3.2; Plin. NH. 10.60.122, 33.57.164; Dig. 19.2.53.pr.2.

Tac. Ann. 1.16.4. For a discussion of non-courtroom claques and their workings see Aldrete (1999) especially Chapters 4 and 5 and Cameron (1976) 235-249.

Mart. 2.27.

Quint. Inst. 11.3.131.

Mart. 2.74 suggests the same. However, it is difficult to tell how exact a parallel Martial is attempting to draw between Saufeius and Regulus. If it is only a comparison of crowd size then Saufeius may not be an advocate.

The “decline of oratory” is discussed further in Chapter 6.

Quint. Inst. 4.2.127.

Aldrete (1999) 137.

Plin. Ep. 2.14.4-8.

Quint. Inst. 11.3.131.

Plin. Ep. 2.14.4.

This does not account for how pay was distributed when one case finished earlier in the day. Most likely participants were paid in the courtroom area itself. We cannot make too much of Pliny's statement since it could also be translated to mean “right there in the basilica”. However, it is arguable that the more literal translation is indicative of a spatial context.

Plin. Ep. 2.14.6.

Bassus (Mart. 9.100) offers that same amount to Martial as sportula, saying that Martial must give him audience in the morning and accompany him to visit approximately ten wid­ows. Martial turns him down, saying that the amount is insufficient for that kind of a day. Four asses equal one sesterce; four sesterces equal one denarius.

Cloud (1989) 210 implies he takes the number this way; Courtney (1980) 105 agrees. We have little other evidence with which to compare Juvenal's information.

Soldier's pay: Duncan-Jones (1982) 10—12; quarry-worker's pay: Cuvigny (1996) 141. Matt. 20.1-2.

This exorbitant pay may be evidence that the claques were not paid a daily wage, but rather were paid per case, which could extend beyond one day. Or, on the other hand, we might find here an instance where some were paid per day and others for a complete case. Pliny's attendants had to be present since their attendance was attached to that of Pliny. Perhaps they were paid for the entire case, even though this was not the norm for a claque. Plin. Ep. 2.14.4.

Plin. Ep. 6.33.4.

Plin. Ep. 4.16.1.

Tac. Dial. 32.2.

Tac. Dial. 7.4.

Plin. Ep. 7.17.9.

Quint. Inst. 4.2.37; Tac. Dial. 6.4.

Sen. Controv. 9.pr.5. Also see Mart. 6.38.

Mart. 2.27.

Mart. 3.46.

Sen. Controv. 9.pr.5; Quint. Inst. 10.3.30.

Suet. Claud. 15.2.

Dio 60.33.6.

Mart. 1.95.

Mart. 3.46.

Sen. Controv. 9.pr.3.

Quint. Inst. 6.1.40.

Quint. Inst. 5.10.67.

Sen. Controv. 9.pr.3. We can assume that some of the laughter and contradictions came from opposing counsel, to which a declaimer would also not be accustomed.

Plin. Ep. 2.14.13.

Sen. Controv. 9.pr.2; Quint. Inst. 4.2.127, 6.4.6, 10.2.27, 11.3.131; Mart. 6.38; Plin. Ep. 2.14.8, 4.19.3, 9.23.1.

Quint. Inst. 4.2.37, 12.8.3; Mart.1.95.

The etymology of clamor is especially suggestive of a verbal act. Martial speaks of shouts of “sophos” (bravo) coming from the audience: 1.49, 6.48.

Plin. Ep. 2.14.13.

Cic. Sest. 54.115, 117; Hor. Ars. 155; Mart. 9.33.1 (baths); Tac. Hist. 2.55; Plin. Ep. 7.24.7; Suet. Aug. 56.2.

Cic. Sest. 54.117.

Tac. Ann. 14.15.8; Suet. Ner. 20.3; Dio 61.20.3—5.

Suet. Ner. 20.3.

Juv. 7.43-44.

Juv. 13.32-33.

Quint. Inst. 10.1.17, 4.2.37.

Plin. Ep. 2.14.6.

Quint. Inst. 10.2.27.

Mart. 2.27.1.

Plin. Ep. 2.14.5.

Tac. Dial. 39.3-4.

Aldrete (1999) 117.

Smitherman (1977) 104.

Aldrete, while noting this modern parallel, does not appear aware of the terminological problems subsumed under the modern term “applause”. Sherwin-White (1966) 183 con­curs that courtroom audiences shouted rather than clapped.

E.g. Saller (1982); Wallace-Hadrill (1989); Konstan (1997).

Dion. Hal. 2.10.1-2; Tac. Dial. 39.4.

E.g. Sen. Controv. 10.1.7; Mart. 2.24.1-2.

Juv. 1.127-134. Martial (8.44.6-8) also mentions a client who spends most of the busi­ness day in the imperial fora.

Quint. Inst. 11.3.131; Juv. 1.133; Plin. Ep. 2.14.4.

Juv. 1.95-116. Martial also makes frequent mention of the sportula: e.g. 1.59, 1.80, 3.7, 3.60, 8.42, 9.85, 10.26, 10.70.13, 14.125.

Plin. Ep. 2.14.5.

Mart. 2.27.

Juv. 1.132-134.

Mart. 3.46.

I am taking this relationship to be one of patron and client. The word amicus is very diffi­cult to define and seems to cross our constructed modern boundaries between friendship and patronage. See Konstan (1997) 122-148 as an introduction to the problem.

Quint. Inst. 11.3.131.

Plin. Ep. 2.14.4-9.

E.g. Mart. 2.27, 3.46; Juv. 1.127-134.

For discussion of claques in the theater and courtroom see Cameron (1976) 235-249 and Aldrete (1999) 135-137.

There is no doubt that the institution of patronage of the late first century AD was far dif­ferent from that of the first century BC and that the focus upon the emperor as supreme patron played a substantial role in the redefinition of the patronage system. The existence of these two types of audience members (i.e. clients doing their duty, and others who were paid) is perhaps evidence of this gradual evolution. Clients of patrons could still be found in the courtroom hoping to gain meals, but advocates and litigants, in an effort both to guarantee their own success and to recreate the audiences of yesteryear, hired “extras” to supplement their numbers.

Quint. Inst. 10.1.17-18.

6 THE ADVOCATE

De Ste. Croix (1954). Important work on the legal services of patrons in the Republic has been done by David (1992). Crook (1995) 122-123, 126 provides evidence of advocates of less exalted families in Cicero's writings as well: e.g. L. Caesulenus (Brut. 131, 242, 259) and the brothers Caepasius (Pro Clu. 57-59).

E.g. emperors: Augustus (Suet. Aug. 56.4); members of the imperial family: Tiberius (Suet. Tib. 8.1), Germanicus (Suet. Gaius. 3.1—2); Nero (Suet. Ner. 7.2); Titus (Suet. Tit. 4.2); old families: Sulpicius Galba (Suet. Galba. 3.3); Valerius Messalla Corvinus (Tac. Dial. 17.6, 18.2; PIR V 90); Asinius Pollio (Sen. Controv. 2.5.13; PIR² A 1241); Ummidius Quadratus (Plin. Ep. 6.11.1; PIR U 603); Fuscus Salinator (Plin. Ep. 6.11.1; PIR² P 200).

Agrippa (Sen. Controv. 2.4.13; PIR V 457); Eprius Marcellus (Tac. Dial. 8.1-3; PIR² E 84); Pliny (Plin. Ep. 2.11, 2.14; PIR² P 490); Tacitus (Plin. Ep. 2.11.2, 7.20.4; PIR² C 1467); Regulus (Plin. Ep. 1.5, 6.21; Mart. 2.74: PIR² A 1005); Vibius Crispus (Tac. Dial. 8.1-3; PIR V 379). Tacitus would label three of these men, Eprius Marcellus, Regulus, and Vibius Crispus, as delatores — men who informed against those of wealth before the senate or the emperor with an expectation that financial gains would come to them from the estate of the accused. The subject of delatores is very difficult and one that cannot be treated without focused examination of the senatorial court. As this court falls outside this study's scope, I have left this issue aside. I am very uneasy with the whole concept of delatores, for several reasons: 1) the term is used rarely outside the writings of Tacitus; 2) the activities of those whom Tacitus deems delatores are predom­inantly known from his writings alone; 3) when other sources do provide information, they often show the “delator" defending someone in court, or present them in a far more favorable light than does Tacitus; and 4) even developing a working definition of the term delator is extremely difficult. Tacitus is not clear as to the criteria for being labelled a delator. For recent detailed examination see O'Neal (1978); Rutledge (1999, 2001); Riviere (2002).

Erucius Clarus (Plin. Ep. 2.9.4); Pompeius Saturninus (Plin. Ep. 1.16.2); Seneca the Elder (Sen. Controv. ^.pr.Yl, 17); Suetonius (Plin. Ep. 1.18). Perhaps Ovid as well (Rem. Am. 661).

Juv. 7.148—149.

Septimius Severus (Stat. Silv. 4.5.49); Fronto (PIR² C 1364); Servilius Silanus (Fronto Ad. Am. 2.11.1) Postumius Festus (Fronto Ad. Am. 2.11.1); Aufidius Victorinus (PIR² A 1393).

Domitius Afer (PIR² D 126); Iulius Africanus (PIR²1 121).

Herennius Senecio (PIR² H 128); Licinius Sura (PIR² L 253); Martial (PIR V 77); Ursus Servianus (PIR² I 631).

Crook (1995) 39.

Mart. 3.38.5—6; Juv. 7.129—130; Mart 1.79; Mart. 8.16.

David (1992) viii—ix; Crook (1995) 148—149.

Berger (1953) 549. See David (1992) 121—137 for discussion.

Cic. Pro Mur. 8. See also Cic. De off. 69.

Dio 54.18.2; Rich (1990) 195. For an examination of the pay of advocates and the social implications see Pani (1986), with whom I in general agree.

Tac. Ann. 11.5—7; Plin. Ep. 5.9.4; Pani (1986) 318—324.

Mart. 2.30.

Mart. 5.16.5—8.

Quint. Inst. 12.7.11; Pani (1986) 329—331.

Plin. Ep. 5.9.6; Pani (1986) 322—323.

Juvenal suggests much the same: 7.134; Griffith (1969) 381—382.

Quint. Inst. 12.7.12.

Mart. 10.87.8—18.

Mart. 4.46.6—17. Also see 12.72.

Fantham (1997) 121.

Ep. 1.18.3. Also, for example, Asinius Pollio attacked Cato early in his career: Sen. Controv. 7.4.6; Tac. Dial. 34.5.

Crook (1995) 39, 130. This builds on ideas first suggested by de Ste. Croix (1954).

Tac. Dial. 7.2.

Parks (1945) 56.

Mart. 8.16.

E.g. Pliny, Tacitus, and Trachalus. Eprius Marcellus and Vibius Crispus, two advocates of the first century, both came from obscure origins, but amassed great fortunes and gained access to the imperial circle — though if we believe Tacitus, their involvement in delation played a substantial role. See Rutledge (2001) 225—228, 278—282.

Juv. 7.186-199.

Green (1998) xxiv.

Juv. 8.47-48.

Juv. 7.147.

PIR² L 19.

Sen. Controv. 10.pr.4.

Quint. Inst. 4.1.11. During the same case it appears Asinius also rebuked Labienus for using the phrase “rebus agentibus" (Quint. Inst. 9.3.13).

Tac. Dial. 38.2.

E.g. Vell. Pat. 1.16-18; Sen. Controv. 1.pr.6-10; Sen. Ep. 114.1-2; Plin. NH. 14.1.3-7; Plin. Ep. 2.14; Quint. Inst. 8.6.76; Tac. Dial. passim; Luce (1993) 13. Discussion of the decline of oratory appears in many modern works on Roman rhetoric: e.g. Kennedy (1972) 446-464, (1994) 186-192; Clarke (1996) 100-108.

Crook (1995) 27, 135, 176-177, 180-196.

Parks (1945) 31; Crook (1995) 180.

We know that some reforms in court procedure necessitated changes in advocates’ meth­ods. The switch to arguing cases point by point (e.g. Suet. Ner. 15.1) and the reduction of time willingly assigned for a given case (e.g. Plin. Ep. 6.2.5) perhaps made it easier to argue cases, and may have encouraged advocates slightly less prepared or skilled. Pliny’s comment (Ep. 2.14.2-3) that advocates were rushing to the courts with no introduction may reflect this change. However, I believe the pervasiveness of “decline" in the literature can be more adequately explained by status.

For further discussion see Neuhauser (1958)passim and Crook (1995) 146-158.

Crook (1995) 122.

It had made a few isolated appearances in the republican period: Cic. De Orat. 1.49, Orat. 5. In the imperial period it first appears in the writings of Seneca the Younger: Apoc. 7.5.1, 12.2.2, 12.2.6, 12.3.31, Dial. 5.37.2.1.

Mart. 1.97.2, 2.64.1, 2.64.8, 4.8.2, 4.46.4, 5.16.14, 5.33.1, 2, 6.8.2, 9.68.6, 10.70.11, 11.24.8, 11.30.1, 12.68.3, 14.219.1; Juv. 1.32, 6.439, 7.106, 7.113, 7.136, 7.148, 10.121, 15.111; Tac. Dial. 1.1.5, 12.4.4; Suet. Claud. 15.3.10, Vesp. 13.1.1; Fronto Ad. M. Caes. 2.13, 2.18, Ad Ant. Pium 10. The absence of the term from the Annales is note­worthy.

Martyn (1996) 97.

Quint. Inst. 12.1.25.

Mart. 2.64.8

Mart. 5.16.14, 12.68.3.

For further discussion see Gleason (1995) passim.

Levick (1983) 114. See also Braund (1992) 81.

E.g. Clarke (1996) 100-108; Crook (1995) 176-80.

Plin. Ep. 6.11.3.

Sherwin-White (1966) 368.

Plin. Ep. 2.14.

Mart. 2.5; Sen. Controv. 3.pr.5; Mart. 7.51.

Pliny is not among them. As was explained in the Introduction, Pliny's participation in the courts warrants special extended examination and so he has been left to the side. It is surprising that Quintilian's own caseload cannot be more extensively reconstructed. Although we have his twelve-book work on oratory, we can identify only four of his cases: 4.1.19 (defended Queen Berenice in a case that appears also to have been heard by her), 6.1.39 (represented a man whose sister was part of the issue of the case; we know no more), 7.2.24 (defended Naevius of Arpinum, accused of murdering his wife), 9.2.73 (defended a woman accused of forging her husband's will — a case likely held in the cen­tumviral court).

PIR² A 1241; Grellet-Dumazeau (1858) 417—418.

Sen. Controv. 7.4.7; Tac. Dial. 34.

Apparently he developed a reputation as a defence advocate (Hor. Carm. 2.1.13—14). Horace may, however, be trying to praise an existing or hopeful patron. If so, it is inter­esting that to cite someone's defence of individuals was flattering.

Sen. Suas. 6.15; Dio 53.29.1; PIR² A 199.

Sen. Controv. 2.5.13.

Plin. NH. 35.46.164; Quint. Inst. 10.1.22, 11.1.57; Suet. Aug. 56.3; Dio 55.4.3.

Quint. Inst. 6.1.21, 9.2.24.

Quint. Inst. 4.1.11, 7.2.5, 26, 9.3.13; Tac. Dial. 38.2.

Quint. Inst. 9.2.9, 34-35, 10.1.23.

PIR² D 126. Tacitus identifies Afer as a delator: Tac. Ann. 4.52.2, 4.52.7-8, 4.66.1. But see Quint. Inst. 6.3.81, 8.5.3, 9.4.31, 10.1.24, 10.1.118, 12.10.11, 12.11.3. See Rutledge's (2001) 220-223 prosopographical entry.

Tac. Ann. 4.52.1-2; Bauman (1992) 147-149.

Tac. Ann. 4.66.1.

Quint. Inst. 6.3.81.

Tac. Ann. 4.52.8.

Cloatilla: Quint. Inst. 8.5.16, 9.2.20, 9.3.66, 9.4.31; Laelia: Quint. Inst. 9.4.31.

Quint. Inst. 8.5.16, 9.2.20, 9.3.66, 9.4.31. For discussion of the trial see Marshall (1993).

Quint. Inst. 10.1.23. Volusenus Catulus: PIR V 647; CIL 6.1267, 31543, 31573, 31574. A statement by the opposing counsel (Quint. Inst. 6.3.32) that Afer's client has the look of a slave suggests that Afer was the defendant's advocate. In another case (Quint. Inst. 6.3.54) we know that Manlius Sura was the opposing counsel but have neither the name of Afer's client nor the nature of the case.

Charis I p. 184B=145K.

Plin. Ep. 2.14.10.

PIR² C 1364. Whether the diversity of the cases we hear of is a result of the editing of the letters to deliberately feature a variety of cases is an intriguing question that unfortu­nately cannot be answered with confidence.

Van den Hout (1999) 278-279 believes Demostratus has been misidentified. For discus­sion of this case see Bowersock (1969) 93-100; Champlin (1980) 63-64; van den Hout (1999) 94-97, 278-279. Van den Hout suggests a date for the case of between 140 and 142.

Champlin (1980) 64 suggests that since the speech was published, it is likely that Fronto won the case. Van den Hout (1999) 96 believes Atticus was acquitted (i.e. Fronto lost the case), because he could not have held the consulship so close to the trial, had he been con­victed. Atticus was consul in 143. The arguments for both positions are strong.

All of Fronto's following cases are discussed in Champlin (1980) 60-68.

Dio 69.18.1-4; SHA. Hadr. 9.3-5. Champlin (1980) 137-138 suggests a date in the 120s for this case.

Champlin (1980) 60.

Fronto Ad. M. Caes. 1.6.2—7; van den Hout (1999) 24—35.

The legal issue in dispute is difficult to determine, as is the exact context of Fronto's appearance before the emperor's court. For discussion see Champlin (1980) 61—62 and van den Hout (1999) 27—29. Marcus quotes a substantial fragment of Fronto's speech in his letter. Such a fragment of a forensic speech from the imperial period is rare.

Fronto Ad. M. Caes. 5.49, 5.50. For discussion see van den Hout (1999) 209-210. Champlin (1980) 61.

Fronto may also have given a speech as advocate in which he made comments about the Christians, but the sources are weak and the facts very murky. For discussion, see Champlin (1980) 64-66.

Fronto Ad. Am. 1.15.1: “in crimine mandatae caedis verteretur", “turned on a crime of a mur­der having been ordered". See also Fronto Ad. Am. 1.14.2.

Following Champlin (1980) 67-68; Talbert (1984) App. 9 #35.

Fronto Ad. Ant. Pium. 8.1.

Surprisingly, van den Hout (1999) 395 says nothing about this.

Fulg. Ex. 35 p. 121H.

Champlin (1980) 67.

Charis. 175B; Champlin (1980) 66.

Hor. Ars. P. 369-373.

Juv. 7.108-110, 115-117. The Latin, pro libertate, suggests the issue was whether a per­son was free or still a slave, rather than whether a person was a Roman citizen or a foreigner.

Juv. 7. 143-147.

Quint. Inst. 4.2.117: “In parvis ergo, quales sunt fere privatae, sit ille pressus et velut applicitus rei cultus...", “In small cases, therefore, such as are the majority of private cases, the treat­ment must be restrained and closely connected to the subject..."; 11.1.44, 12.10.70; Crook (1995) 132.

Mart. 7.51.1-6, 11-12.

Quint. Inst. 6.4.6.

Eprius Marcellus: PIR² E 84; Cyperus: Mart. 8.16.

Mart. 3.38, 4.5.

Mart. 1.79.

Mart. 7.51.

Champlin (1980) 162 n. 62.

Tac. Ann. 2.37.1-3.

6.29.1. Pliny (Ep. 4.17.9) states that he took the case of Corellia because of his friendship with her father. Friendship may also explain Pliny's representation of Arrionilla (Ep. 1.5.5).

Quint. Inst. 4.1.7.

Tac. Dial. 5.5.

Ov. Rem. Am. l. 150. See also Quint. Inst. 12.9.7; Stat. Silv. 4.5.49.

Plin. Ep. 6.18.2.

Hor. Ars. P. 419-425; Tac. Dial. 5.4.

Hoffer (1999) 11-12.

Quint. Inst. 12.7.12.

Plin. Ep. 3.4.7.

Aper, talking of his own career (Tac. Dial. 7.1), describes what types of days he would call “red-letter days". Among these he includes the successful defending of an imperial freed­man or agent in the emperor's court. One can easily see why this would have been a special day: imperial freedmen and agents were powerful people in Roman politics of this period, and to be able to put them in one's debt was of great value.

Plin. Ep. 2.9, 2.13, 3.2, 3.8, 4.4, 4.15, 6.8, 6.9, 6.32; Fronto Ad. Am. 1.1.2—4, Ad. Am. 1.4, Ad. Am. 2.4.1, Ad. Am. 2.6, Ad. M. Caes. 5.49, Ad. Verum Imp. 2.7.1-7. One cannot help but wonder if the numerous people we find Fronto asking (Ad. Ant. Pium. 8) to join him in Asia for his proconsulship either felt required to aid him because they had become previously indebted to him, or were the subjects of Fronto's efforts to create such future indebtedness.

Tac. Dial. 6.2.

Dio 55.4.2.

Quint. Inst. 12.7.5.

For a description of the creation and role of the office of the iuridicus see Simhauser (1973) 235ff; Camodeca (1976); Eck (1979); Van den Hout (1999) 440-443. See also Peachin (1996) 56-60.

Fronto Ad. Am. 2.6, 2.7, 2.8.2.

Champlin (1980) 70.

Saller (1982) 119, 143; Brunt (1988) 418.

It is often difficult to clarify the relationship between an advocate and a client in the extant sources. Various scholars have examined this problem in both republican and Augustan periods: Neuhauser (1958); David (1992); Crook (1995).

Plin. Ep. 3.4.4: “Legati rursus inducti iterum me iampraesentem advocatumpostulaverunt, implo­rantes fidem meam quam essent contra Massam Baebium experti, adlegantes patrocini foedus", “The representatives were brought in again and asked me, now present, to serve as advocate, calling on my honor which they had experienced during the case against Baebius Massa, and pleading that they had a compact of patronage."

Tac. Dial. 3.4.

CIL 14.2516 provides our closest match: “... PROVINCIARVM V HISPANIAR TRIVM ET MaVREtANIAR DVAR ORATORI PRAESTANTISSIMO DEFENSORI CLIENTIVM FIDELISSIMO”. Birley (1981) in his Appendix III says this inscription is “generally assigned" to C. Iulius Asper, cos. 212 (PIR² I 182); however, he provides no references. A study on this topic may be rewarding.

For more discussion see Crook (1995) 146-158.

Crook (1995) 148-149.

Ter. Adelph. 645-646, Eunuch. 763; Plaut. Mil. Glor. 663.

Grellet-Dumazeau (1858) 73-74.

E.g. Plin. Ep. 6.23.1-4; Saller (1982) 9.

Saller (1982) 11, 15; e.g. Fronto Ad Verum Imp. 2.7. In his recent study on friendship in the classical world, Konstan (1997) 136-137 suggests that “friendship" really was the vocabulary of patronage, in that friendship and patronage were not exclusive; there could be a true bond of affection, while acknowledging at the same time that one party was the superior. Gold (1987) 134 and Saller (1989) 57 have both shown that “amicus" was an ambiguous term used to encompass personal intimates as well as patroni and clientes.

Suet. Aug. 56.4; Dio 55.4.2; Macrob. Sat. 1.4.27.

Emperors did not discourage this impression. See Campbell (1984) 17-69 for discussion (this passage of Dio is specifically mentioned on page 34).

Mart. 2.32.1-9.

Fronto Ad. Am. 2.11.2. For discussion of municipalities choosing patrons see Nicols (1980a) in ANRW 2.13.535-561.

Fronto Ad M. Caes. 5.59.

ILS 2929: “[M Pos]tumium Fest[um] | oratorem..."

ILS 2928; Fronto Ad. Ant. Pium. 8.

Saller (1982) 10 points out that the word patronus appears widely in the epigraphical record. He suggests this is probably due to the fact that these inscriptions were usually set up by the clients, unlike the literary texts we have which were written by the patrons. See Sailer (1982) Appendix 5 and Table III for a useful list of patrons of individuals from North Africa. Duncan-Jones (1972) had previously examined the patronage ties of the African town of Giufi to one Aurelius Dionysius. Towns: e.g. ILS 273, 884, 888, 5006, 6121 (Canusium), 6122 (Thamugadi), 9484. Provinces: ILS 2767, 6871.

ILS 6680; Millar (1977) 433; for a translation of a section of the inscription see Crook (1995) 49.

Tac. Dial. 7.2, 7.4.

Such fame extended beyond one's own hometown. An out-of-town guest accompanying L. Fadius Rufinus to dinner at Pliny's home identified Pliny upon being told of his work (Plin. Ep. 9.23.4).

Mart. 5.16.5-8.

ILS 6680.

Bean (1965) no. 127; Millar (1977) 435. The time frame is difficult to identify.

Millar (1977) 435.

The emperor's court was not always in Rome. Local communities might then be seeking representation in other cities as well as Rome for their cases.

Quint. Inst. 4.1.7.

SHA. Hadr. 20; Crook (1995) 52, 152.

Plin. Pan. 36.3.

Mart. 5.16.5.

Plin. Ep. 4.12.1-4.

Philostr. VS. 2.29.621. PIR² Q 55 suggests that he was active during the reign of Commodus or Severus perhaps.

Philostr. VS. 2.32.625.

Plin. Ep. 1.7.2.

Plin. Ep. 4.17.2-3.

Mart. 2.32.

Kelly (1966) 84 n. 1; Crook (1995) 131.

Tac. Dial. 7.1.

Millar (1977) 375-385, 434-446, 507-527 passim·, Talbert (1984) 464-487 passim; Crook (1995) 48-50.

Cf., Millar (1977) 434.

OGIS 567 = IG 3.778: “... συνήγορον καί προήγορον της πατρίδος διηνεκή... πολλούς υπέρ της πατρίδος καί πόλεων πλεΐστων αγώνας ειρηκότα επί τε των Σεβαστών καί των ήγε[μόν]ων...'', “constant advocate and pleader for his native city... having spoken many cases for his native city and many other cities before the emperors and the governors...' For brief dis­cussion see Crook (1995) 49-50.

AE 1971,455: “... πρεσ[βεύ-]σαντα καί συνδικήσαντα επί θεούς [Σε-]ουηρον καί Άντωνΐνον εις τε τήν βασιλ[ίδα] 'Ρώμην πλεονάκις...”, “... delegate and advocate before the late emper­ors Severus and Antoninus at the palace in Rome several times....” Crook (1995) 50. Also IGRR 4.618.

This brings Scopelian to mind, who went on behalf of Smyrna and all Asia in general to speak against a resolution of Domitian that no vines be grown in Asia (Philostr. VS. 1.21.519-520).

Such advocates may appear in municipal inscriptions or papyri. C. Valerius Petronianus, of Mediolanum, may be one such man. He is described in funerary inscription (ILS 6732) as a causidicus who went on five delegations to Rome and elsewhere on behalf of his com­munity before his death at the age of 23. We assume these cases involved municipal issues such as boundary disputes. Whether the cases were heard by the emperor cannot be ascer­tained.

Philostr. VS. 1.21.519-520.

Philostr. VS. 1.25.539.

173 Philostr. VS. 1.22.524.

174 Philostr. VS. 1.25.540.

175 This ability to deviate from fixed procedures and hear matters that straddled various jurisdictions or issues was also a feature of the senate. Consider the incident involving Norbanus Licinianus (Plin. Ep. 3.9.29-33).

176 Philostr. VS. 2.26.613.

177 Philostr. VS. 2.1.559-563.

178 Mart. 12.68.

179 As the emperor came to spend less and less time in the city of Rome over the course of the imperial period, changes were made. We have already discussed the creation and develop­ment of the jurisdictions of both the praefectus urbi and the praefectus praetorio; these likely took over some of the emperor's cases in Rome. In addition, the evolution of the provin­cial governors' legal jurisdiction (e.g. Suet. Claud. 23.1), the creation of the iuridici, posted in Italy, and the appointment of iudices vice sacra aided in managing and perhaps somewhat stemming the flow of cases to Rome. For discussion see Lintott (1993) 129-153; Peachin (1996) passrm.

7 THE ADVOCATE'S ROLE OUTSIDE AND IN THE COURTROOM

1 Quint. Inst. 12.8.14.

2 Quint. Inst. 12.8.7-11.

3 Quint. Inst. 12.8.12-13.

4 Quint. Inst. 5.7.10-11.

5 Plin. Ep. 6.31.11, 6.33.3: "ingens... ddvocatio".

6 Quint. Inst. 10.1.23-24. The nature of the case is unknown. Domitius Afer's career has already been discussed. C. Sallustius Crispus Passienus (PIR² P 146) was closely con­nected to the imperial family; he married Domitia, the great-niece of Augustus, and, at Claudius' request, subsequently divorced her to marry Agrippina the Younger. He was consul suffectus in 27 and consul ordinarius in 44. D. Laelius Balbus (PIR² L 48; Rutledge [2001] 242-243) may be the same man mentioned by Tacitus (Ann. 6.47.1-3, 48.6) who prosecuted two women, Acutia and Albucilla, on separate occasions, before the senate and subsequently was stripped of his senatorial rank much to the satisfaction of all because of his willingness to use his eloquence against the innocent.

7 Quint. Inst. 9.2.34, 10.1.23. Asinius Pollio's career has already been discussed. M. Valerius Messalla Corvinus (PIR V 90) cos. 31 BC, excelled as a soldier, orator, politician, and patron of letters. Augustus appointed him as praefectus urbi in 26-25 BC; he resigned a few days later (Tac. Ann. 6.11.4). In 2 BC it was Messalla who conferred the title of pater patriae upon Augustus in the senate. For his forensic involvement see: Quint. Inst. 10.1.22, 23, 113, 12.11.28.

8 Quint. Inst. 1.5.43, 5.13.49, 6.3.78, 6.4.6; Plin. Ep. 2.19.2, 5.9.1, 6.33.3; Suet. De Rhet. 1; Fronto Ad. M. Caes. 3.4.1; Gell. NA. 14.2.7.

9 Tac. Dial. 14.1.

10 Quint. Inst. 10.7.30.

11 Sen. Controv. 3.pr.6.

12 Plin. Ep. 6.2.1.

13 Quint. Inst. 4.1.54.

14 Sen. Controv. 2.5.20.

15 Quint. Inst. 10.7.30.

16 Quint. Inst. 10.7.31.

17 Tac. Dial. 19.5, 38.1. Pliny (Ep. 6.2.5) mentions advocates applying for and receiving one or two waterclock's worth of time to speak.

18 Quint. Inst. 4.1.72.

Suet. Ner. 15.1: “Cognoscendi morem eum tenuit, ut continuis actionibus omissis singillatim quaequeper vices ageret." “He held to that custom of speaking, that continuous speeches be omitted, [and rather] each one [speak] singly, alternately."

Plin. Ep. 6.22.2: “Egit uterque pro se, egit autem carptim et κατά κεφάλαιον, quo genere veritas statim ostenditur" “Each spoke on his own behalf; however, each spoke in pieces, and according to the headings, by which the truth immediately is revealed."

E.g. Tac. Ann. 13.51; Suet. Vesp. 10.1; Gell. NA. 14.2; Dio 60.29.4.

Plin. Ep. 2.11.14, 4.9.9. This ratio dates from the Lex Pompeia de ambitu of 52 BC (Rotondi [1962] 410-411).

Plin. Ep. 4.16.2, 6.2.7-8. Pliny (Ep. 6.2.3) says one of the joys of working with Regulus was that he always asked for unlimited time to speak. Pliny determines the length of “horis septem" (seven hours) from the water clocks commonly used as the time measures of speeches. How much time, by modern standards, was in one water clock is estimated at between 15 and 20 minutes. Since we cannot date this speech to a specific day of the year, the conversion of these 7 hours (which varied widely according to the season) to modern time length is not exact. Based on the hours of sunlight and sunset, the length of a Roman hour during the day would vary from approximately 44 minutes in the winter to 1 hour and 15 minutes in the summer. See Carcopino (1940) 149 and Talbert (1984) 500-503. Time and speech lengths will be discussed further below.

Mart. 6.35.1-6.

Mart. 8.7.

Marcus Aurelius does not appear to have rushed cases in his court. Dio (71.6.1) tells us that he “πολλάκις" (often) would be trying the same case for eleven or twelve days. Dio's very mention of this detail suggests its uniqueness.

Plin. Ep. 4.16.2, 6.2.5. See also Mart. 6.35; 8.7; Tac. Dial. 38.1; Plin. Ep. 1.23.2, 6.2.3-7, 11.3.52 (“ aquam perdit").

Quint. Inst. 12.9.19.

Quint. Inst. 6.3.46, 10.7.3.

Quint. Inst. 11.3.19.

Quint. Inst. 11.3.22.

Plin. Ep. 9.36.3-5.

Plin. Ep. 9.40.

Gell. NA. 11.3.1.

Quint. Inst. 12.8.2.

Sen. Controv. 10.pr.2.

Quint. Inst. 12.8.2.

Crook (1995) 133. For discussion of the legal issues related to postponements see Metzger (1997) and (2005).

Gell. NA. 12.13.1.

E.g. the trial of Caesius Cordus: Tac. Ann. 3.38.1 and 3.70.1; Suillius Rufus: Tac. Ann. 13.43.2.

Quint. Inst. 12.9.16.

Quint. Inst. 5.13.3.

Quint. Inst. 10.7.2.

Quint. Inst. 10.7.2, 10.7.20, 10.3.30, 10.7.2.

Dio 69.18.3.

Mart. 7.51.

Quint. Inst. 10.7.20.

Quint. Inst. 10.7.22.

Talbert (1984) 209-210.

Suet. Aug. 32.3, Claud. 23.1.

Suet. Claud. 23.1.

Suet. Galba. 14.3.

Martial (7.28.7) mentions mid-December as a time when an advocate has leisure time. Greenidge (1901) 135-141; Buckland (1963) 615-616. Multiple variables and obscure evidence make study of this topic very difficult.

Suet. Aug. 32.2; Dio 60.17.1.

SHA. M. Ant. 10.

Gai. Inst. 2.279; Dig· 2.12.2.

Suet. Claud. 14.

Dio 76.17.1.

Dig. 2.12.6.

Dio 55.26.1.

Fasti Ostienses; Dio 59.7.5.

E.g. Tac. Ann. 1.16.2, 50.1; Suet. Tib. 53.2, Cal. 24.2. The cancellation due to famine, death of imperial family member, and Gaius' desire that people attend the theater are likely linked to the Roman practice of iustitium, an institution that temporarily sus­pended all public and private business.

Plin. NH. 7.14.62; Tac. Ann.13.30.4; AE 1972, 174 = EJ 367; CIL 6. 31293, 10.3903. These inscriptions, however, complicate matters in that iustitium is not mentioned; rather, we find the term vadimonia and some form of the verb differre. This language is not isolated to this event. In an unrelated passage Juvenal (3.213) speaks of “differt vadi­monia praetor".

Plin. Ep. 8.21.2-3.

Sen. Apoc. 7.4.

Juv. 2.70-71.

Plin. Ep. 9.40.2. It is a pity that Pliny does not define “the winter" more specifically.

A new more streamlined procedure for repetundae cases was introduced by a senatus consul­tum of 4 BC (FIRA 1 no. 68 V), which could find the judgment rendered within a few months of the charges being laid. It appears this procedure was modified shortly there­after. However, general comments made by Pliny suggest some sort of shortened procedure still existed in his day. For further discussion of this topic see Brunt (1961); Talbert (1984) 464-466.

Quint. Inst. 5.6.6; Crook (1995) 133.

Juv. 13.154-161.

Tac. Ann. 14.41.2; Plin. Ep. 6.11.1.

Plin. Ep. 6.11.

Plin. Ep. 6.31.1-12.

Dio 71.6.1.

Plin. Ep. 5.9.1. The phrase Pliny uses is “proxima comperendinatione", “at the next meeting after an adjournment until the day after the next". For discussion, see Sherwin-White (1966) 336.

The trial of Marius Priscus, not including preparation, filled three nine-hour to ten-hour days at the very minimum (Day One: Plin. Ep. 2.11.14-16; Day Two: Plin. Ep. 2.11.17-18; Day Three: Plin. Ep. 2.11.19-22). The fallout concerning Firminus was dealt with at the next regular meeting of the senate (Plin. Ep. 2.12). The trials of Caecilius Classicus and his associates, as well as that of Bassus, both filled multiple days over several weeks (Classicus: Plin. Ep. 3.9.20-21; Julius Bassus: Plin. Ep. 4.9). For the length of the court days see Talbert (1984) 500-503. Another somewhat exceptional case was that of Calpurnius Piso. According to Tacitus' report (Ann. 3.13.1), the trial consisted of two days for the prosecution and, after a six-day interval, three days for the defence. See Talbert (1984) 484, (1999); Woodman and Martin (1996) 152-153.

E.g. Quint. Inst. 1.5.43, 4.2.28, 5.13.49, 6.3.78, 6.4.6; Tac. Dial. 38.1; Plin Ep. 2.19.2, 5.9.1, 6.33.2-4; Suet. De Rhet. 6; Fronto Ad. M. Caes. 3.4.1-2; Gell. NA. 14.2.7.

Suet. De Rhet. 30.3.

Quint. Inst. 4.2.86.

Quint. Inst. 6.4.6.

Plin. Ep. 5.9.1-2.

Lampo, secretary to Flaccus the prefect of Alexandria and Egypt, was tried for impiety towards Tiberius, and broke down under the strain of his trial, which Philo (In Flacco. 16.128) tells us dragged on for two years. It is dangerous to compare provincial legal activities with those in Rome. However, we have limited resources. We must also remem­ber the legal restrictions placed on trials. Gaius (4.104—5) tells us that the leges Iuliae iudicariae stipulated that iudicia legitima (following the litis contestatio) lapsed after eigh­teen months, and iudicia quae imperio continentur at the point when the magistrate who authorized the actions left office. Kelly (1966) 118—131 believes expiration could not have been so simple.

Fronto Ad. M. Caes. 1.6.2-5. Marcus Aurelius quotes part of the speech, which he appar­ently has in front of him, back to Fronto in this letter.

Juv. 16.43-47.

Sen. Brev. 7.6.

Mart. 7.65. We cannot tell if he was the litigant or the advocate. In light of the rules con­cerning the lapsing of charges we perhaps must interpret Gargilianus' determination to mean that he continued, year after year, to attempt to have an issue taken up by the courts but was repeatedly turned down by the magistrates. The less likely alternative is that for some reason the same case was extended, by means of postponements and adjournments, over a twenty-year period.

Since the Roman hour lengthened and diminished depending on the hours of daylight for any given day, Camodeca (1992) 51 n. 45 correctly calculates that the beginning of the third hour would commence at approximately 8:30am in mid-summer, and 10:00am in January.

Third: TPSulp 14, 27, TH 15; fourth: TPSulp 15; fifth: TPSulp 13, TH 6.

It is noteworthy that among the vadimonia to be executed locally, ten of the thirteen chose the third hour: TPSulp 1, 2, 3,4, 5,8, 9, 16, 17, 20. Of the others, one was set for the first hour (TPSulp 12), one for the second hour (TPSulp 18), and one for the ninth (TPSulp 10). See Camodeca (1992) 51-52; Cloud (2002) 235-236.

Mart. 4.8.1-4.

Hor. Sat. 1.9.35-37.

Mart. 8.67.3.

TH 13, TH 14.

Talbert (1984) 189-191.

Mart. 10.70.8-9, 7.51.11.

Hor. Ep. 1.7.46-51.

Juv. 13.158.

Talbert (1984) 502-503.

Dio 69.18.3.

Mart. 7.51.11.

TPSulp 19. See Camodeca (1992) 84-96, (1999) 49, 72. One local vadimonium (TPSulp 10) chooses this hour as well.

Dio 76.17.1.

Fronto AdM. Caes. 2.18.1, De Feriis 3.7.

E.g. Mart. 9.68, 12.57.1-6.

Mart. 10.70.5-6.

Mart. 1.49.31; Tac. Dial. 13.5.

Plin. Ep. 8.21.2.

Plin. Ep. 9.40.2.

Mart. 10.20.

Quint. Inst. 12.7.10.

Mart. 2.5.

Mart. 10.20.14-15.

Quint. Inst. 11.3.22; Gell. NA. 11.3.1.

Quint. Inst. 10.7.30.

Sen. Controv. 3>.pr.5.

Quint. Inst. 11.3.22.

Tac. Dial. 19.1, 26.4.

For further discussion see Aldrete (1999) 44-84.

Winterbottom (1964).

Dominik (1997) 50.

Quint. Inst. 2.11.4, 2.11.6; Winterbottom (1964) 94-95.

E.g. Quint. Inst. 1.11.3, 12.9.1-5; Clarke (1996) 85-99, 104-105; Kennedy (1994) 173-178. Kennedy (1994) 173 terms this new style the “declamatory style”.

Quint. Inst. 1.pr.26

Quint. Inst. 1.pr.27.

Quint. Inst. 11.3.11-12, 12.5.5.

Quint. Inst. 12.5.5.

Quint. Inst. 12.5.5.

Quint. Inst. 1.pr.12, 2.13.2, 6.3.30, 10.7.1, 12.5.1.

Quint. Inst. 1.10.36, 10.1.5, 12.3.1.

Quint. Inst. 1.pr.36, 11.2.3, 11.3.11-12.

E.g. Quint. Inst. 1.11.1-4, 12.5.5. Quintilian is certainly not the only author to attempt to separate these two groups despite their obvious similarities in the use of expression, gesture, and movement (e.g. Sen. Controv. 3.pr.2).

Quint. Inst. 11.3.43.

Quint. Inst. 11.3.45.

Quint. Inst. 1.11.12.

Quint. Inst. 11.3.11, 11.3.52.

Quint. Inst. 11.3.52.

Quint. Inst. 11.3.23, 11.3.40. E.g. Mart. 6.19; Juv. 2.51.

Gell. NA. 11.7.3.

Quint. Inst. 6.3.81.

Sen. Controv. 9.pr.3; Quint. Inst. 6.4.11; Tac. Dial. 34.1.

Quint. Inst. 6.4.9.

Quint. Inst. 12.5.6.

Plin. Ep. 2.14.10-11.

Quint. Inst. 12.5.5-6.

Plin. Ep. 2.19.4.

Fronto Ad. M. Caes. 3.6.

Quint. Inst. 1.11.10, 11.3.76.

Quint. Inst. 11.3.75.

Quint. Inst. 9.3.101.

Quint. Inst. 11.3.70.

Mime and Pantomime, two artistic genres that became very popular during the imperial period, no doubt had some influence on the courtroom, even if advocates worked hard to separate themselves from actors. See Brilliant (1963) 10; Aldrete (1999) 52-54. For a more general discussion see Beacham (1992) 117-153.

Aldrete (1999) 72 notes the increased level of specificity and the broadening of range found in the gestures discussed in Quintilian’s work compared to those found in Cicero's writings. Quint. Inst. 11.3.79.

Quint. Inst. 11.3.69.

Quint. Inst. 11.3.71.

Quint. Inst. 11.3.85.

Quint. Inst. 11.3.107-108.

Quint. Inst. 11.3.109.

Quint. Inst. 11.3.112, 11.3.130.

Maier-Eichhorn (1989); Aldrete (1999) 3-43. Aldrete's study considers the practical ele­ments of gesture primarily through Cicero's works; it uses imperial sources, specifically Quintilian, to examine the theoretical study of oratory in the latter's time. Imperial examples of practical gesture in the courts are somewhat lacking in Aldrete's study. Quint. Inst. 11.3.92.

Quint. Inst. 11.3.84.

Quint. Inst. 4.2.39, 11.3.118, 11.3.121, 11.3.125. Quintilian does not elaborate on whether each movement had a particular significance.

Quint. Inst. 11.3.111, 11.3.161-170.

Aldrete (1999) 81-83.

Corbeill (2000).

Quint. Inst. 11.3.2.

Graf (1992) 41.

Quint. Inst. 10.1.16.

Plin. Ep. 2.19; Quint. Inst. 11.3.125-126.

Quint. Inst. 6.3.54, 11.3.144, 11.3.149.

Sen. Controv. 9.4.18; Quint. Inst. 6.1.48.

Quint. Inst. 11.3.131, 11.3.132.

Mart. 6.35; Quint. Inst. 11.3.136.

Quint. Inst. 6.2.26-28, 6.2.34, 11.3.62, 12.5.4.

Mart. 8.17.

Quint. Inst. 6.2.36.

Quint. Inst. 4.1.28.

Sen. Controv. 7.4.6.

Quint. Inst. 12.10.47.

Quint. Inst. 11.3.138-139, 11.3.141, 12.10.47. Based on the Acta Isidori, rec. B, col. ii, l. 37, it seems that advocates from the provinces could appear before the courts in their native dress. The Acta are, however, known to share many features with the Greek novel and thus it is extremely difficult to determine their historical accuracy. See Musurillo (1954) Appendix III.

Quint. Inst. 11.3.137.

Juv. 2.65-74.

Quint. Inst. 11.3.142.

Mart. 10.87.13-15; Juv. 7.143-145.

Plin. Ep. 6.2.2: “oculum modo dextrum modo sinistrum circumlinebat (dextrum si a petitore, alterum si a possessore esset acturus)". Sherwin-White (1966) 357 admits we know nothing about this practice.

Mart. 2.29.2, 8.33.22.

Plin. Ep. 6.2.2.

It is interesting that Aper (Tac. Dial. 8.3) includes in his description of Eprius Marcellus and Vibius Crispus (two supposed delatores) comments concerning their low birth, their low moral character, and the fact that one of them “habitu quoque corporis contemptus", “was disdained of because of his physical attributes".

Quint. Inst. 11.3.145-7.

Quint. Inst. 5.13.39.

Quint. Inst. 12.10.70. I have already mentioned that an advocate’s speaking was affected by whether he was serving as defence or prosecution.

Quint. Inst. 11.3.153.

Quint. Inst. 11.1.43, 11.3.150.

Quint. Inst. 8.3.14, 11.1.43-45.

Quint. Inst. 6.1.9.

Quint. Inst. 5.10.115.

Quint. Inst. 5.13.4-6, 7.4.18.

Quint. Inst. 11.3.134.

Quint. Inst. 11.3.134.

Quint. Inst. 11.3.130.

Quint. Inst. 4.1.28, 6.1.31, 6.1.33, 6.1.41; Juv. 7.145-146.

Quint. Inst. 6.1.32.

Quint. Inst. 6.3.72.

Quint. Inst. 6.1.40.

Quint. Inst. 3.8.7, 6.2.2, 6.2.4.

Quintilian (Inst. 11.3.144, 145, 147) and Juvenal (7.111-114, 117-118) describe the progressive physical strain over the course of a speech.

Plin. Ep. 6.2.2. Juvenal (7.115) describes another pale advocate.

Plin. Ep. 1.18.1-6. Unfortunately, Pliny does not provide the contents of Suetonius’ dream.

Quint. Inst. 11.3.158.

Fronto Ad Am. 1.27.1-2.

Tac. Dial. 5.4.

Sen. Controv. 4.pr.10.

Tac. Dial. 7.4.

E.g. Plin. Ep. 2.11,4.9, 5.20.

Quint. Inst. 10.1.16.

Quint. Inst. 12.5.4.

Tac. Dial. 13.5.

Sen. Controv. 9.4.18. How the friend going around the court with a gloomy face helped the advocate is unclear. Pliny (Ep. 4.11.1) tells us of Valerius Licinianus, a former leading advocate of Rome, who, having suffered exile, was teaching rhetoric in Sicily.

Hor. Sat. 2.5.27-44.

Quint. Inst. 4.1.7.

Tac. Dial. 6.2.

Sen. Controv. 3.pr.3.

Graf (1992) 40 suggests that this same type of link was thought to exist between the out­ward appearance of a man (as reflected in dress, gesture, walk, and other motions) and the inward personality and character. Gleason’s book (1995) focuses specifically on this topic. E.g. Quint. Inst. 5.12.20: “Quapropter eloquentiam, licet hanc (ut sentio enim, dicam) libidi­nosam resupina voluptate auditoria probent, nullam esse existimabo...”, “Therefore, although the audiences approve of this (I will say what I truly think) debauched eloquence with its fan­ciful charm, I will not consider it eloquence at all...” See also Quint. Inst. 10.1.43, 12.10.73; Tac. Dial. 20.3; Aldrete (1999) 169.

E.g. Quint. Inst. 4.2.39, 11.3.57.

E.g. Quint. Inst. 1.11.3, 2.10.11,4.1.9, 4.2.126, 12.9.5.

E.g. Quint. Inst. 1.11.3, 2.10.11,4.2.126, 4.3.1, 12.9.1.

E.g. Quint. Inst. 2.12.6, 4.2.122, 10.1.43.

E.g. Quint. Inst. 4.2.126.

Quint. Inst. 4.3.1-2.

Tac. Dial. 19.5; 20.1-4; Plin. Ep. 6.22.2; Gell. NA. 14.2.9.

234 Sherwin-White (1966) 368; Clarke (1996) 100; Fantham (1997) 122.

235 Parks (1945) 31; Crook (1995) 27, 180-192.

236 Fronto Ad. Am. 1.27.2.

237 A task Tacitus undertakes with gusto.

238 Sen. Controv. 3.pr.14; Quint. Inst. 2.12.6, 5.12.20, 6.4.5, 10.1.43, 12.10.49.

CONCLUSIONS

1 Juv. Sat. 13.157-161.