The stress of judging

Thus far our focus has been the structure of the legal system in reference to judges and the identity of those who served in this important function. This section adopts a different perspective, that of a judge himself; every effort is made to view the court process through the eyes of a judge.

The amount of stress a judge felt when undertaking a case naturally depended on both his personality (in particular, how much he wanted to do a good job) and his abilities. Acting as a single judge must have been more stressful since serving on a panel of judges gave each member a certain degree of anonymity and disconnectedness. As a panel member, he was required to lis­ten to the evidence and vote; in that setting someone else, usually a magistrate or his delegate, presided over the case. For the single judge, the procedural issues, though few in comparison to those of the modern western court, could be worrisome as it appears that failure to appropriately enact procedure, or act­ing in some inappropriate way, could result in penalties for the judge.¹⁰²

The extent to which the judges of Rome were educated varied widely and could strongly affect how comfortable a judge felt in the courtroom. Certainly, in the decuries it can be assumed that those of old senatorial and equestrian families, due to their inherited wealth and position, all met a relatively high standard of education. Many no doubt even had rhetorical training and possi­bly some specific legal training.¹⁰³ But it cannot be assumed that all equestrians in the decuries attained the same level of education. The Julio- Claudian period, especially the reign of Augustus, saw the creation of many new equestrians and their increased participation within the bureaucracy.

Quintilian’s greatest frustration with judges is reserved for those who are ill-educated.¹⁰⁴ He also states that “iudicem rura plerumque in decurias mittant”, “the countryside often sends a judge into the decuries”, implying such judges lacked education.¹⁰⁵ Newly created equestrians and ducenarii from within Italy who had become eligible for service only in Augustus’ reign certainly would have looked green to seasoned advocates such as Quintilian. Greener still were the wealthy provincials who had been admitted to the decuries even more recently.¹⁰⁶ While there was a greater chance that those from the provinces would be less informed of Rome’s legal system and laws, it was equally possi­ble that an Italian from Nola might know far less about rhetorical devices than a provincial educated in Athens. Quintilian does not indicate which group betrayed their origins most, thereby perhaps allowing all to be labelled inexpe­rienced. In one passage, however, Quintilian specifically separates the ill-educated from the rustic, which gives hope that at least some who came from larger urban centres within the empire were deemed capable.¹⁰⁷

Quintilian considers the lack of education among judges to be prevalent enough that he calls for the advocate to make allowances in his presentation to match the judge's capabilities. Advocates, he says, must lower and simplify their style or risk not being understood.¹⁰⁸ They must avoid, or at least explain, any obscure or technical words.¹⁰⁹ The Greek judge who knew no Latin and thus was removed from the decuries by Claudius may be the excep­tion, but there is every possibility that for many judges Latin was, in fact, a second language, and thus that any overly specialized vocabulary would have been far more difficult for them to comprehend.¹¹⁰ Even if a judge is not entirely ill-educated, Quintilian sighs, advocates still must be careful because most judges will have no understanding of the finer arts like dialectic.¹¹¹

Quintilian is not alone in his exasperation at the level of judges' education.

How well educated was the typical unus iudex? Since litigants could draw a single judge from the decuries, the above criticisms equally apply. Single judges not drawn from the decuries could be anyone the litigants agreed upon who met the criteria. If the litigants themselves were from the countryside or particularly uneducated, they might choose someone they knew who came from similar circumstances. In such cases a judge, by Quintilian's standards, would be rustic or ill-educated. That said, it appears even those of lower standing saw the advantage in seeking a judge of higher standing, especially one with some legal training, as illustrated by Pliny being sought out by locals when at his Tifernum estate.¹¹⁴ In Rome, aristocratic men actively involved in dispensing justice as magistrates, advocates, jurists, and judges likely developed reputations among the city's populace; litigants no doubt sought those viewed as good and fair judges to hear their cases. Early in his career, Pliny is already referring to the many times he had been advocate, judge, and assessor.¹¹⁵

How much of a social gap could exist between the litigants and the judge they approached cannot be determined. Being comfortable with the patron­age system that encouraged connections between those of vastly different status, litigants of low status may have felt comfortable approaching a man of far higher rank to hear their case and, for that matter, the petitioned man may have agreed more readily, since the honor to be gained from judging could benefit him in other situations.

Even if they were relatively well-educated, the majority of judges, whether from the decuries or not, likely did not have courtroom experience, except perhaps as litigants. The number of cases being heard within the city guaran­teed that men with legal and magisterial experience such as Pliny, or even his lesser counterparts, could not be everywhere acting as both counsel and judge. Unlike the modern judge who rises to the position by means of success and ability as an advocate for several years, Roman judges could come to the courtroom with no previous experience of hearing a case. A far better modern comparison can be drawn between the Roman judge and the modern juror.

Yet the Roman unus iudex would likely not have been as terrified as we, with our modern sensibilities, might think when contemplating being thrust before a courtroom as the person in charge, expected to understand the intri­cacies of the law. Comparable to how the modern system regards jurors, the Roman legal system did not expect a judge to have extensive legal knowl­edge. He was expected to rule on what he could understand, nothing more.¹¹⁶ Furthermore, when he heard a case under the formulary system much of the work had been done for him, in that the praetor had already laid out the dis­pute in the formula and the judge merely had to determine whether the facts pointed one way or the other; he did not have to determine motive or penalty — hence, Seneca's belief that even the ill-educated could judge such cases.¹¹⁷ Magistrates and single judges appointed by the emperor were hearing cases that required their determination of motive and an appropriate penalty.¹¹⁸ But magistrates likely had more experience with such matters, and those who are known to have been appointed by the emperor tended to have extensive political backgrounds.

Since Rome's legal system allowed for non-experts to serve as judges, why do Quintilian and others make so much of their deficiencies? Quintilian may have been stressing judges' limitations to remind advocates in training that they were no longer preparing declamations for fellow students; they were in court, and the intellectual shortcomings of the judges required advocates to specifically tailor their speeches.

Notably, even though any appointed individual was deemed capable of ren­dering judgment, conscientious judges often sought aid in reaching a verdict. The most common form of aid was the assessor (advisor).¹²¹ Judges of all types, including magistrates and emperors, are found judging cases with assessors at their side.¹²² Those most often asked to serve as assessors were men of political and/or legal experience; emperors, consulars, jurisprudents, and advocates are often found in this capacity.¹²³ For such men, requests to be an assessor could be frequent.¹²⁴ Assessors often were not strangers to the judges who requested their services, but rather had some sort of personal connection. Pliny speaks of Corellius, whom he asked to aid him at a hearing, as a friend, and Gellius uses the same term to describe some advocates he requests to aid him in a case.¹²⁵ Corellius as well as Frontinus (the other man Pliny asked to serve as an assessor for the same case) were both highly connected political figures during the Flavian period and had already reached far greater political heights than had Pliny.¹²⁶ Although Pliny does not state such a motive, one wonders if his request for their aid provided an opportunity for him to honor those better positioned than he, thereby strengthening his relationship with them.

The basic role of the assessor was to advise the judge. Gellius reports that assessors were particularly valuable for informing the judge on ancient points of law, or laws that were contested and ambiguous, or newly ratified.¹²⁷ When he asks for the advice of his assessors, however, Gellius is more concerned with moral issues and they merely encourage him to follow the clear letter of the law. But a judge was in no way obliged to follow the opinion of his advisors and, in the case he describes, Gellius in fact did not follow their advice.

Some other aids were available to judges, in the form of some written works. When he had first been chosen by the praetors to hear private cases, Gellius made an effort to prepare for his task by examining materials written in both Latin and Greek that discussed the duty of a judge; likely the Greek works dealt with moral philosophy.¹²⁸ He also turned to texts that provided information on procedure, a topic on which (as discussed above) many judges likely felt themselves inadequately informed. Gellius mentions that on the topic of postponements and delays he examined the leges luliae, and that he read the commentaries of various jurists who no doubt provided further explanation of important laws.¹²⁹ While he seems to find these readings gen­erally useful, he remarks that for the case he subsequently judged they did not help. We must assume from the nature of the works Gellius mentions that a judge of less academic ability and interest would not have found these works readily accessible, either physically or intellectually.

Judges could also, though, be aided by visual tools provided by the advo­cates. Pliny remarks that in a complicated inheritance case he almost had to call for “calculos tabulamque", “counting tools and a board”, articles which he implies were common in private cases.¹³⁰ As I have noted, financial issues were likely prevalent among the cases heard under private law, which sug­gests that a judge could often count on at least some help from such tools if he were hearing such a case.¹³¹ We also hear of paintings of the crime and por­traits of the deceased being presented in the courts.¹³² One does not get the impression that these were produced to aid a judge in understanding the legal issues, but were rather designed to appeal to his emotions.

The stress an individual felt as a judge was affected by many variables. The type of court certainly made a difference. As one of a panel, a judge would feel protected among the group; at the same time, the cases heard by the quaes­tiones perpetuae could result in exile or other serious penalties for those convicted — the stakes were higher, and that must have weighed on at least some of the judges. A panel judge's educational level probably made slight difference to the stress he felt. Various factors (which will be discussed further in the next section) brought individuals to the decuries and these likely over­powered any feelings of inadequacy among the judges. The panel was asked to rule on what they could understand, and in the end each judge's vote came down to his opinion of the case.

With regard to the unus iudex drawn either from the album or general pop­ulation, we must avoid comparing him to his modern equivalent. In fact, the best modern equivalent would be a single modern jury member serving as the judge. A single judge chosen from the album and unfamiliar with either party likely had the best chance for a stress-free hearing. The matter would be of slight to moderate importance and no one would be going into exile, although certainly the matter was deemed important enough to the litigant who instigated the legal process. The judge had no vested interest in either party, nor did he care greatly about their opinions of him. He would make his decision as best he could, and move on. Perhaps we assume too much, since Gellius had problems even with a case of this sort; however, he struggled with something other than the facts of the case, namely, his own prejudice toward the individuals involved.

For the unus iudex asked to hear a dispute between two friends, the hearing clearly involved a level of stress. He would want to do what was in the best moral and legal interests of both parties. A judge with more legal training likely felt more comfortable interpreting the laws, and if he did not have a legal background, he sought out aid from those who did. In the end, however, a judge had to rely on the fact that his friends had chosen him and by that very act had concluded that whatever ruling he gave, whether or not based on proper interpretation of a complicated law, would in their opinions be adequate. The honor of being entrusted with the task must have given a judge some courage.