Physical arrangement of the participants

A central element in determining the arrangement of the participants within the courtroom is the “subsellium” (bench) that the panels of judges, litigants, advocates, and junior counsel are described as using during hearings.⁷ Meeting in multi-purpose spaces demanded that the benches be portable, making wood the most likely construction material.⁸ The same type of seat­ing also accommodated the members of the senate in the Curia Iulia? Unfortunately, no wooden bench survives.

These benches must then have been arranged around a central point, com­posed of the presiding magistrate and the panel of judges. The arrangement of the courtroom made physical contact possible between the litigants and the judges. Both Seneca the Elder and Quintilian speak of the effectiveness of a defendant kneeling as a suppliant, and clasping the knees of the judges. This suggests that defendants were close enough to the judges to be able to fall at their feet without having first to traverse the entire length of the court­room, or fight their way through the audience. An arrangement must then be envisioned in which no obstacles stood between the judges and the benches of the litigants. Two configurations are possible: either both sides' benches were adjacent but facing the judges, or their benches were facing each other and the judges were at one end. In both arrangements, there would have been open space between the benches of the litigants and the judges.

The apparently easy movement of individuals from one bench to the other, as the above passages reveal, indicates that no barrier separated the two sides of the court. On one occasion, it appears that Cassius Severus, angered by an advocate who kept crossing to his side, asked the court, tongue in cheek, that such a barrier be erected.¹⁶

With the litigants’ benches facing each other, a sizeable open space between the two sides would be conducive for speeches.

This arrangement of the courtroom also facilitates direct contact between the advocate, the judges, and members of the audience, since the fourth side of the area could contain additional benches. Seneca the Elder recounts an inci­dent he saw involving Asilius Sabinus: “Memini... ilium... tristem circa coronam iudici obversari et totiens occurrere eunti Syriaco et quaerere quid haberet spei”, “I remember that he went around the crowd of the court wearing a sad expres­sion, and whenever, making his rounds, he came to Syriacus he asked if he should have any hope”.²¹ It appears both Sabinus and Syriacus were making a circuit around the court and repeatedly crossed paths in their movement.

The occupants of these first benches in both the litigants’ and the audi­ence’s sections can be partially identified. The litigants and their advocate(s), and perhaps immediate family and closest supporters, occupied the first benches of both sides. The junior advocates, prompters, clerks, and attendants

took their seat on the benches immediately behind the advocate and liti­gant.²³ Quintilian remarks that an advocate dumbstruck by a sudden problem should not have to turn to his junior counsel “inter subsellia”, “on the benches” — for help, so we can assume that they were close by to offer advice.²⁴ People with strong interests in the case — close friends, clients, and the like — most likely occupied the benches immediately behind the litigants and the first row of benches directly facing the judges.²⁵ Importance was attached to a lit­igant having supporters immediately around him, as indicated by the effort of an advocate to plant his client (the alleged sister of the opponent) on her brother's bench. Quintilian, who was the opposing counsel in that case and recounts the story, foresaw this ploy and ordered his client to withdraw from the bench before the girl could be seated. The effect lost, the scheming advo­cate was forced to return with his client to his own bench.²⁶ Interaction between the advocate and his friends required that they also be in the front rows of the benches; perhaps these individuals occupied the benches directly facing the judges. Quintilian comments that advocates, in order to fill the interval when the audience applauds, “aut in aurem alicuius loquuntur aut cum sodalibus iocantur...”, “either say something in the ear of someone or joke with their friends....”²⁷ Quintilian also believes the advocate to be insincere who chooses “reclinari...

This contact between the advocate and his supporters and the general audience was frequent and apparently could be extremely physical in nature, so much so that the audience might have wished to be farther away; on occa­sion, an advocate attempting to clear his throat spat on those closest and even, while making an expressive arm gesture, hit them.²⁹ In such circumstances Quintilian acknowledges that “consistere post eum parum tutum sit”, “it is scarcely safe to stand behind him”.³⁰

An advocate not only interacted with members of the audience seated in the front rows, but even entered the ranks of the audience for theatrical effect. When his opponent produced a bloodstained sword, one advocate “subito ex subselliis ut territus fugit et, capite ex parte velato cum ad agendum ex turba prospexis­set, interrogavit, an iam ille cum gladio recessisset”, “suddenly fled from the benches as if in terror, and then, when he was to speak, peeked out from among the crowd, with his head partly covered, and inquired whether that man with the sword had now left”.³¹ Clearly, members of the audience occu­pied benches abutting the central open area. If the audience had been kept to the rear, the advocate's buffoonery would have had little effect on the court as a whole. He had to be able to hide within the first couple of audience rows in order still to be seen by opposing counsel and the judges.

The following section will consider the physical arrangement of the audi­ence in greater detail. First, however, the placement of the large panels of judges (approximately 45 in number) must be considered in light of the above discussion. In Chapter One it was argued that panels of judges did not occupy a tribunal but rather sat at ground level.

The presiding magistrate and his platform must, however, be incorpo­rated with these judges. The most suitable arrangement to ensure that the platform did not block the judges' view places the presiding magistrate at the central axis of that side of the court (Figure 2.1). On either side of the platform, at ground level and placed parallel to the platform, benches would extend for the judges. Since two benches of the judges would now have direct access to the open area, only two additional rows behind each front row would be needed for all the judges. To maintain the judges' line of vision, the front of the magistrate's platform would be flush with the back row of the judges' benches; the two columns of benches would then extend slightly in front of the magistrate's platform — no cause for concern since the elevation of his platform guaranteed a clear view of all activity in the courtroom.

Physical arrangement of the audience

Two types of audience can be found at a hearing. As recorded by Tacitus, Aper in his discussion with Messalla and Maternus of the audience’s expectations indicates a material distinction: “Vulgus... adsistentium et adfluens et vagus audi­tor adsuevit iam exigere laetitiam et pulchritudinem orationis", “The attending crowd as well as the approaching, wandering listener, now have come to expect richness and beauty in a speech.”³² Aper differentiates between an audience present to hear this particular case or speech, and bystanders who come and go from the proceedings. Thus, he distinguishes the audience based on their physical presence within the courtroom. The “vulgus adsistentium" were those who occupied benches within the court, while the “adfluens et vagus auditor" describes those who flowed in and out of the space at the back, standing as they observed the court. However, in another passage, Aper also seems to place transient audience members in close proximity to the advocate, when he describes the excitement of making a speech:

Quae in iudiciis veneratio, quod illud gaudium consurgendi adsistendique inter tacentes et in unum conversos, coire populum et circumfundi coram et accipere adfectum quemcumque orator induerit!

What respect [one receives] in the courts, what delight there is in rising up and taking one’s position among the silent [audience, who are] devoting attention to you alone! A crowd gathers, and before your eyes surrounds you and adopts whatever mood you, the orator, assume!³³

Again, we get the sense of a bipartite audience: those already present when the advocate rises to speak, and those who are attracted to the court either as the advocate rises or while he is already speaking.

The word circumfundi in this passage demands examination (Figure 2.2). On occasion ancient authors also use the word corona to describe the audience at a hearing.³⁴ In its most common usage, corona means “circle" (just as circumfundi implies a circular shape) and could be taken to indicate that the audience in fact completely surrounded the pleader. However, this surely cannot mean that those immediately accessible to the advocate in all four directions were members of the audience. As Quintilian advises, it was most important that the advocate maintained unimpaired focus upon the judges.³⁵ The proposed arrangement of the courtroom discussed above allows the advocate close proximity to the audi­ence, while at the same time maintaining his direct link to the judges. The use of the term corona must refer to some audience arrangement that allowed for direct interaction between the advocate, the benches of both litigants, and the judge(s) and yet enabled the advocate to directly engage the audience, perhaps on the remaining one side of the speaking area. Similarly, circumfundi does not necessitate that the audience was immediately bordering on all sides of the speaking advocate. Consider the modern example of a fashion show at a shop­ping mall. There is a stage, with models entering at one side and exiting at the other, and often an area of audience seats facing the stage front. If the show is good, a crowd of people gathers round, often circular in shape and usually encompassing the stage as well as extending out behind the seating area. If we took our Roman advocate into the mall and positioned him at ground level between the front edge of the stage and the seated audience, we could refer to the gathering crowd as “surrounding” him, even though the description would not be strictly accurate. In this arrangement only the seated audience would have direct access to the advocate. Conceivably we can similarly envision the ancient courtroom, and see the “surrounding crowd” as forming a ring encom­passing the entire court with all its benches. The only obstruction would be the tribunal of the presiding magistrate, but since this was relatively small and the speaking advocate constantly moving, it would have minimal impact on visibility.³⁶

The physical form of the group would also have been affected by the size of the audience, which varied widely. We hear of many large audiences, sometimes described as “densa circumstantium corona", “dense surrounding crowd” and “turba", “throng”.³⁷ At the other extreme, we find Maternus offering as one rea­son for the decline of oratory the fact that audiences consisted of only “unus... aut alter”, “one... or two”.³⁸ No doubt our sources tend to mention sizeable audiences more often than the occasions when an advocate argued before an empty court.³⁹ Pliny remarks that every pleader loses confidence when he rises to speak before a large, imposing audience.⁴⁰ Two of the four audiences that Pliny identifies as large refer to the centumviral court that met in the Basilica lulia; the third was present to hear him argue a criminal case.⁴¹ Recalling Quintilian’s account of the large audience in which the advocate hid, we can infer from the bloodstained sword that this case also was criminal.⁴² The high stakes involved in the centumviral and criminal courts naturally drew large crowds, sometimes so dense that clothing could get torn in the jostling.⁴³

Those members of the audience who were paid to attend and supply vocal encouragement and praise — the claque — likely occupied the audience benches rather than blended with the transient crowd. Juvenal describes the paid audience provided by a patron for a poetry recital:

scit dare libertos extrema in parte sedentis

ordinis et magnas comitum disponere voces;

nemo dabit regum quanti subsellia constant...

He knows how to provide freedmen sitting on the very edge of the row and how to place the loud voices of his hangers-on; [but] no patron will give as much [cash] as the benches cost...⁴⁴

While the environment is different, the purpose of the planted audience is the same — to blend amongst the other audience members and encourage support. It is reasonable to assume that a similar seating arrangement was used for the claque in the courtroom.