The judge in the courtroom

Now we are ready to follow the judge into the courtroom. Chosen by liti­gants, perhaps nervous and yet honored to undertake this role, he enters one of the physical environs we considered in Chapter Two.

In addition to the demands of following their cases, judges also clearly became emotionally involved. Quintilian discusses extensively how the advo­cate can best appeal to the emotions of a judge and thereby affect the outcome of his case. He admits that such a methodology may not be the most philo­sophically noble, since an advocate could detract from the truth by appealing to the emotions, yet he is practical enough to realise that advocates had to use the available tools, and emotional appeals were proven to work.¹⁸⁷ He in fact calls it a duty of the advocate to appeal to the judge's emotions.¹⁸⁸ In Chapter Seven we will consider how the advocate went about moving the emotions of a judge; here we are rather interested in how a judge reacted — was he emo­tionally moved during a case? Again, evidence is scarce.

Still, it appears judges gave visible indications of their emotional states during the course of a case. Quintilian mentions that it is often possible to discover what remarks of the advocate a judge accepts or rejects by the “vultu” (looks) he gives, and sometimes by something he does or says, though Quintilian does not supply specifics.¹⁸⁹ Judges were at times brought to tears; on two occasions Quintilian speaks of tears as a reality rather than as a possi­bility, and views the tears as evidence of the advocate's successful emotional appeal.¹⁹⁰ It is very disappointing that these are the only visible indications of an emotional impact upon a judge that Quintilian mentions. The willingness of judges to cry before the public surely suggests that other emotional reac­tions, such as laughter, were at least equally frequent. We hear of one other emotional action on the part of a judge from Pliny the Younger, who states that frequently during his speeches the judges of the centumviral court would rise to their feet and praise him (either by applause or shouts of approval — he does not tell us).¹⁹¹ These visible signs of emotions suggest that judges made little effort to keep the success of the advocate's efforts hidden from view or to maintain a countenance of impartiality, disconnected from their sentiments.

It is certainly clear that judges verbally interacted with others in the courtroom during the case itself. The stage of the proceedings as well as the type of case no doubt greatly affected the amount of discussion. Gellius describes a brief conversation between an advocate and a praetor as it was recorded by Sulpicius Apollinaris in one of his Letters. The context likely places this exchange during the praetor's business day when he was dealing with in iure matters.

�?Omnia, vir clarissime, negotia de quibus te cogniturum esse hodie dixisti diligentia et velocitate tua profligata sunt, unum id solum relictum est, de quo, rogo, audias,’ tum praetor satis ridicule: �?An illa negotia de quibus iam cognovisse me dicis profligata sint equidem nescio; hoc autem negotium quod in te incidit, procul dubio, sive id audiam sive non audiam, profligatum est.’

�?All the business, most excellent sir, which you said you would examine today, has been completed by means of your attentiveness and quickness; only one matter remains, which, I beg, you will hear,' then the praetor with suitable wit: �?Whether that business which you say that I have examined already has been completed, indeed, I know not. However, this business which you are involved in, has been ruined, without doubt, whether I hear it or not.'¹⁹²

While the praetor says little of consequence, this is one of a very few surviving direct quotations of what a judge said during his court day.¹⁹³ During the hear­ing itself, judges are known to have made statements and asked questions about points that were not mentioned by the advocate, as well as about points men­tioned but unclear.¹⁹⁴ Perhaps more importantly, it appears there was debate among legal and philosophical circles whether such involvement of a judge was appropriate.

For the most part, such interaction between a judge and the other partici­pants at the legal hearing was restricted to verbal exchanges. The only occurrences of physical contact of which we are informed are an account of a female defendant being advised by her advocate to pour forth tears and put her hands on the knees of the judges, and a report that Claudius was often kept on the tribunal when trying to leave the courtroom by advocates clutch­ing the edge of his robe or his foot.¹⁹⁶ The attempt to clutch the knees of a judge is also found in visual representations depicting individuals falling before the platform of a magistrate or emperor.¹⁹⁷ While it is not possible to determine whether these scenes are intended to represent the in iure stage of a case or the apudiudicem stage, it is clear that this was a common action of sup­pliants. Since the cited passages are the only surviving evidence of physical contact being made with a judge, we must assume that this was rare.

Serving as a judge within Rome's legal system was very inclusive, involving Roman citizen and foreigner, senator and freedman. Opportunities existed for many from highly diverse backgrounds and geographical origins to come to Rome and fulfill the task. Whether a man viewed judging a case as an honor or a duty depended greatly upon his placement within Rome's political hier­archy and his ambitions.