So I diligently read Cicero, Quintilian and Pliny the Younger, along with some good secondary sources. Here are some surprising things I learned about Roman law courts. (I recently shared some of them at a conference called ‘Visualising Law Courts in Late Antiquity’)
|Ben Lloyd-Hughes as Flaccus|
Prosecution - Today, if someone commits a crime, the police arrest him and the state pays a lawyer to prosecute him. In Roman times there was no state prosecutor. A criminal would only be tried if a private individual summoned him to court. People who were not Roman citizens could not file suit; they had to find a patron to do this on their behalf.
No Oath - Today, witnesses must take an oath, swearing to tell the truth. In Roman times no such oath was required. In fact, witnesses were often bribed or threatened in order to make them lie. Sometimes the lawyer himself even insulted and slandered his opponent. Character witnesses were an important factor in trials, but they could lie, too.
Chairman = Judge - What we call the judge, the Romans called the chairman. This was not his specific job, but his public duty (munus) as an elected magistrate. He was usually a duovir (which means ‘one of two men’) or a praetor. In Ostia, the two duoviri were appointed for a period of one year, and they gave their name to the year. They presided over the city council and acted as chairmen in trials. They did not vote, but read the verdict and passed judgment.
Judges = Jury - What we call the jury, the Romans called judges: iudices. These were probably members of the town council, the decuriones. Ostia’s council had one hundred in the late first century. In order to be admitted as a decurion, you had to be freeborn, at least 25 years old, and wealthy. One of Cicero’s cases had 300 judges sitting in. They voted by using wax tablets marked with a ‘C’ on one side and an ‘A’ on the other. If they thought the defendant was guilty, they rubbed off the 'A', leaving the 'C' for CONDEMNO. (I condemn) If they thought the defendant was innocent, they rubbed off the 'C', leaving the ‘A’ for ABSOLVO. (I release) The tablets were placed in a jar and a clerk counted them up, then gave the result to the chairman.
Jurists = Legal Experts - Because being the chairman or a member of the jury was just one of many duties, the praetor, magistrates and lawyers often went to a jurist for legal advice... This was a man who specialised in certain aspects of the law, like interpreting a last will & testament.
Outdoors - We think of trials as being held in the basilica of a Roman town, but many law-courts were held outdoors, in town forum or marketplace.
In his book Catullus and his World, T.P.Wiseman writes: Trials in the Roman republic were not held in a sober courtroom, but outside in the sunshine, with the forum crowd jostling around.
In his ‘Study of Rhetoric’ the famous orator Quintilian wrote: If we are called upon to speak in the sun or on a windy, wet or warm day, is that a reason for deserting the client whom we have undertaken to defend? (Inst. Or. XI.3.27)
|Plan of a typical basilica, from The Slave-girl from Jerusalem|
Basilica - The basilica was a public space for meetings and therefore law-courts. By the first century AD, when my books are set, the basilica had three naves (long rectangular spaces) and an apse (a semi-circular space). The ‘naves’ were created by long rows of columns. The wall of the central area was higher than the rest of the building, so that windows high up in the walls could light it. The basilica at Ostia was probably built in the time of Domitian. The floor and walls were faced with marble, giving it a lavish appearance. The upper gallery probably had decoration on it in the form of reliefs: the she-wolf suckling Romulus and Remus, the Capitoline geese warning of approaching barbarians, the abduction of the Sabine women. etc.
|Judicial scene from Ostia Antica|
Steps - The judges (jury) probably sat below the chairman on stepped seating, perhaps wooden removable benches. The judges listened in silence and were forbidden to speak to each other. Finally they voted as described above. The chairman did not vote, but pronounced judgement and sentence. He was also responsible for making sure the punishment was carryied out.
|basilica from the BBC adaptation of The Slave-girl from Jerusalem|
Opposite sides - Confronting each other from opposite sides of this space may have been the prosecution and defence, their supporters also sitting on removable wooden benches. Pliny the Younger tells about the time he defended a young woman who had been disinherited by her aged father in favour of her young stepmother. [My speech] was delivered on behalf of Attia Viriola, and its interest lies not only in the position of the person concerned but also the rarity of this type of case and the size of the court which heard it. Here was a woman of high birth, the wife of a praetorian senator, disinherited by her eighty-year-old father ten days after he had fallen in love and brought home a stepmother for his daughter, and now suing for her patrimony in the united Centrumviral Court. One hundred and eighty judges were sitting… both parties were fully represented and had a large number of seats filled with their supporters, and a close-packed ring of onlookers, several rows deep, lined the walls of the courtroom. The bench was also crowded, and even the galleries were full of men and women leaning over in their eagerness to hear (which was hard) and also (which was easy) to see. (Pliny 6.33)
Arena of spectators - The spectators probably formed a ring – or rather a rectangle - around the space formed by the podium and benches. The space inside was where the prosecuting lawyer and defending lawyer stood and spoke. Wiseman writes: The corona, or ring of bystanders, enclosed the space like an arena, and what went on within might well be in effect a mortal combat.
Women? Children? - There were also upper galleries and women were probably encouraged to watch from up here. According to Smith's dictionary, this gallery reached entirely around the inside of the building, and was frequented by women as well as men, the women on one side and the men on the other...
Screens - Most basilicas were huge, so if more than one trial was going on at a time they were often screened off from each other with moveable panels, perhaps of rush or wood.
What to wear (defendant) – Today, if you go to court you usually dress as smartly as possible. In Roman times the defendants sometimes put on their oldest clothes and then tore their hair and scratched their cheeks to gain the sympathy of the judges. Sometimes they brought along their young children or aged parents. Cicero recounts a case in which he had 'filled the Forum with sobs and laments' by holding aloft the young son of the defendant. These family members, as well as the defendant, would often dress in rags and muss their hair to appear more pathetic.
What to wear (lawyer) - On the other hand, the lawyer had to look dignified. At the beginning of the trial, at least. The toga (the big blanket thingy) was required wear at formal occasions, and pleading a case in the basilica was definitely such an occasion. But Quintilian describes how the orator might become increasingly dishevelled as the trial progressed. When, however, our speech draws near its close, more especially if fortune shows herself kind, practically everything is becoming; we may stream with sweat, show signs of fatigue, and let our dress fall in careless disorder and the toga slip loose from us on every side. This fact makes me all the more surprised that Pliny should think it worth while to enjoin the orator to dry his brow with a handkerchief in such a way as not to disorder the hair, although a little later he most properly, and with a certain gravity and sternness of language, forbids us to rearrange it. For my own part, I feel that the dishevelled locks make an additional appeal to the emotions, and that neglect of such precautions creates a pleasing impression. (Study of Rhetoric 11.3.147) The exhausted appearance of the sweating and dishevelled orator probably impressed the jury more than it disturbed them.
|The Gestures of an Orator|
Overacting - We get a wonderful idea of a bad lawyer from this passage of Quintilian, in which he tells would-be orators what NOT to do:
For it is a mistake to look at the ceiling, to rub the face and give it a flush of impudence, to crane it boldly forward, to frown in order to secure a fierce expression, or brush back the hair from the forehead against its natural direction in order to produce a terrifying effect by making it stand on end. Again, there are other unseemly tricks, such as that so dear to the Greeks of twitching our fingers and lips as though studying what to say, clearing the throat with a loud noise, thrusting out one foot to a considerable distance, grasping a portion of the toga in the left hand, standing with feet wide apart, holding ourselves stiffly, leaning backwards, stooping, or hunching our shoulders toward the back of the head, as wrestlers do when about to engage.
Secret Signals - Some orators tweaked their clothing or made other secret signals in order to prompt their supporters to yell, boo, cheer… or worse! Once, Julius Caesar was supposed to signal a massacre by the common and innocuous gesture of letting his toga slide off his shoulder. (Aldrete p 41) Another time, Pompey the Great got the crowd to shout out the name of the accused every time he shook out the folds of his toga. We know about this from Plutarch.
Six Parts of the Speech - Once the judges had been sworn in, the main speeches would be given, prosecution first, then defence. After that, witnesses would be called and cross-examined. Quintilian tells the story of a woman whose husband had been murdered. ‘When I begin the peroration,’ said her advocate, ‘hold up this portrait of him.’ The woman did not know that peroration meant the conclusion, so every time her lawyer glanced at her, she held up the portrait. This soon became so comical, that everybody stopped feeling sorry for her and started laughing!
Here is Lupus' explanation of the six parts:
EXORDIUM -- INTRODUCTION
NARRATION -- WHAT HAPPENED BEFORE THE CRIME
PROPOSITION -- HOW THE CRIME WAS COMMITTED
PROOFS -- EVIDENCE AND CLUES
REFUTATION -- HOW YOUR OPPONENT IS WRONG
PERORATION -- CONCLUSION
Exhibit ‘A’ – In addition to portraits of the deceased, lawyers sometimes brought pictures of the crime actually being committed, painted on wood or cloth, like an ancient version of Crimewatch. We know they did this because Quintilian specifically disapproves of this practice. (Study of Rhetoric 6.1.32) Ergo, it must have been a strategy used by other lawyers. Of course such scenes were usually pure conjecture.
Prison? - Imprisonment was not a form of punishment in Roman times. In antiquity prisons were used only to hold suspects until trial. Sometimes houses were used as prisons, as the case with St Paul in Rome. If the person was convicted, the punishment could be a fine, a whipping, forced labour, or the death penalty. For freeborn citizens, this meant beheading. For slaves, this meant crucifixion. Some condemned criminals were executed in dramatic and entertaining ways during lunch break in the arena, in order to illustrate Greek myths. (See my book, The Gladiators from Capua).
New Function - from about the fourth century AD, basilicas began to be used by Christians as meeting places and many became churches. That is why you can still see the form and layout of the ancient law-court in some churches: the three naves, the upper gallery and the apse at one end.
Some books on Roman Law-courts:
Catullus and his World T.P.Wiseman
Gestures and Acclamations in Ancient Rome by Gregory S. Aldrete
Crime and Community in Ciceronian Rome by A. Riggsby
Roman Law in Context by David Johnston
Actors and Audience in the Roman Courtroom by Leanne Bablitz
Final Judgments: Duty & Emotion in Roman Wills by Edward Champlin