The distinction between types of courts

Thus far this chapter has proposed a reconstruction of a courtroom hearing a public case or an important private case. Two passages of the Institutio Oratoria, however, show in what ways other courts differed.

In a civil case before a unus iudex the arrangement of the judge and advo­cates may have differed slightly from my reconstruction. Easy access to the audience was far less important; that the advocate could speak while seated is but one indication of reduced concern for communicating with the specta­tors. The arrangement of the benches of the advocates, with respect to the judge, depends on the interpretation of the phrase “a laeva iudicis" in the fol­lowing passage: “Nam et dexter pes a laeva iudicis sedenti proferendus est, et ex altera parte multi gestus necesse est in sinistrum eant, ut ad iudicem spectent”, “For example, he must extend his left foot if he is seated to the left of the judge, and [if he is seated] on the other side it is necessary that many of his gestures

Figure 2.2 Reconstruction of a large courtroom

be offered towards the left, so that they may address the judge.”⁴⁵ A small illustration is helpful:

Figure 2.3 Seating arrangement of judge and advocates at a small private hearing

If we conclude that the “left of the judge” was taken to mean the judge's right side, and the left side of the room (A) when one stood before him, we can con­clude that the advocates' benches were parallel to each other, facing the judge's tribunal. In this arrangement the advocate to the right of the judge would slightly turn in his seat, by extending his left foot, to face the judge directly, while the advocate to the left of the judge would extend his right foot.

Quintilian also informs us that the courtroom of a private case could be much smaller:

Praecipi et illud scio, ne ambulantes avertamur a iudicibus, sed sint obliqui pedes ad consilium nobis respicientibus. Id fieri iudiciis privatis non potest. Verum et breviora sunt spatia, nec aversi diu sumus. Interim tamen recedere sensim datur.

I know that some experts advise that when we walk we should not turn our backs to the judges, but rather move diagonally all the time looking back to the judges. It is not possible to do this in private cases. In truth, the spaces are small and we are not long turned away. Nevertheless, sometimes it is permissible to walk backward gradually.⁴⁶

This is unsurprising. An unimportant case suggests far fewer spectators and, if the advocates often spoke seated at such hearings, little open space would have been needed. However, Quintilian’s comment also shows that advocates in such cases spoke standing as well. The available space was restrictive, which may in fact have been why many chose to speak seated. It is also signif­icant that with the wide variety of courts hearing private cases, Quintilian feels comfortable making a generalized statement about the space available to the advocate. We must conclude that the typical space for a standard private case was of a consistent size.

In the previous chapter it was shown that private cases were on occasion held in spaces much smaller than a forum, including private homes.⁴⁷ Quintilian’s equation of smaller courtrooms with private cases coincides well with Maternus’ statements in the Dialogus, that most cases (causae) were being heard in his own day (iam) in recitation-halls and record-offices — spaces too small to allow the orator to display his skills properly — and the audience might consist of only two or three.⁴⁸ While Maternus does not specify the types of cases heard in these small courts, based on his descrip­tion of them as “plurimae causae" it is possible that he has in mind the private cases described by Quintilian. A smaller courtroom naturally results in a smaller audience. While an audience of two or three may have been the smallest Maternus ever saw, rather than the norm, an audience much smaller than would be found at a sensational murder trial is reasonable. Private cases often dealt with common issues that were unlikely to excite memorable speeches from the advocates. However, Vitruvius certainly has an audience of more than two or three in his mind when he remarks that the homes of high-ranking officials serving the state must have adequate space to accommodate private suits.⁴⁹

Ancient descriptions of the physical features of the Roman courtroom are frustratingly capricious in their level of detail and the amount of knowledge assumed of the reader. Piecing together the evidence, we can nonetheless achieve fair success, as the above shows. It happens that our knowledge of the physical features of one of Rome’s most prominent courts, the centumviri, is exceptional compared with its counterparts and thus warrants separate dis­cussion. We know much more about this court for two reasons. First, Pliny argued many cases there and so mentions it often in his collected letters. Second, we know the building in which the court convened, and its archaeo­logical remains are substantial enough that we can often fill gaps in the literary descriptions with archaeological evidence, thereby producing a more accurate reconstruction of the court’s physical features.