One day in approximately 150, a young man stood before the praetor and stated that, for all his efforts, he could not reach a verdict in a case that had been set before him.

The case presented a moral problem to Aulus Gellius. A respectable man had no proof that he had loaned money to a less than respectable man, and this scoundrel claimed no such loan had been made.

This case came to Gellius through Rome’s legal machinery. Although he had no courtroom experience or expertise in the intricacies of Roman law, he met the necessary qualifications of age and wealth. He appeared on the lists from which magistrates could choose judges. So, a praetor chose Gellius as one to hear cases dealing with private law, most of which, as in the above case, involved financial disputes. While pride may have been the first emotion Gellius felt when chosen to fulfil this duty of the upper-class Roman citizen, the pressure of trying to reach the “right” verdict, of balancing the law with the cultural prejudices of his society, no doubt took the bloom off the rose of being a Roman judge.

The judge within the Roman courtroom is the focus of this chapter. Since the judge plays a central role in a legal hearing — he gives the ruling and therefore controls the outcome of the case, the ultimate goal of the event — it is surprising how limited is the evidence. Yet, in a way, his role is more passive than that of the advocate or even of the audience. For the most part, he listens. He is not a force with whom the advocate constantly strug­gles to admit certain information. The Roman court process gave the advocate significant latitude in the avenues of attack he utilized, whether character assassination or masses of irrelevant information.

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This chapter considers four main topics. As a foundation for discussion I briefly survey the types of judges that existed in Rome's legal system. This is necessarily simplistic but also very helpful for providing a sense of the cir­cumstances that placed a given individual or group in charge of a case, and the possible connection or lack thereof between the judge(s) and the liti­gants. Next, I examine the qualifications, selection process, and identity of judges, who are divided into two groups: those who were listed on the album iudicum, the list of judges, and those selected directly by the litigants or appointed by other methods. This chapter leaves aside the preliminary hear­ings held before magistrates in both public and private procedures. The courts of the praetors have already been thoroughly considered; the courts of the emperor, praefectus urbi, and consul have also received attention and little more can be done with the available evidence. The focus here is on those who served as a unus iudex, single judge, in the apud iudicem stage of private cases and those who served on panels of judges in the standing criminal courts, the quaestiones perpetuae, and in private cases, namely the recuperatores and the cen­tumviri. We then shift our perspective to that of a judge himself, considering how the status, education, and origin of a judge affected his ability to judge and the pressures he felt in the role. Finally, we place judges within the courtroom itself and look at how they interacted with the other courtroom participants.

The focus of this book is the courtroom itself and in this chapter we are interested in the judge as a participant. Thus, this chapter will not dwell on the steps in the process of a case from initiation to resolution, or on the spe­cific jurisdictions of the various judges within the city. These complicated topics are the source of current research and debate.¹