Of all ancient peoples the Romans were the most prone to litigation, despite the discouraging complexity, technicality, and confusing fictions of their procedural law. Doubtless our own legal actions would have seemed to them equally devious and prolonged. The older the civilization, the longer the lawsuits. Any man, as noted above, could make himself a prosecutor in a Roman court. In the patrician Republic the accuser, the defendant, and the magistrate were required to follow a form called legis actio, or process of law, and the slightest deviation invalidated the action. “Thus,” says Gaius, “a man who sued another for cutting his vines, and in his action called them Vines,’ lost his case because he should have called them ‘trees,’ since the Twelve Tables speak generally of ‘trees’, and not particularly of vines.”27 Each party deposited with the magistrate a sum of money (sacra-mentum), which was forfeited by the losing party to the state religion. The defendant also had to give bail (vadimonium) as security for his subsequent appearances. The magistrate then turned over the dispute to a person on the list of those qualified to act as judges. In some cases the judge issued an interim inter-dictum, requiring one or more of the parties in the case to perform or refrain from certain actions. If the defendant lost, his property—sometimes his person—could be seized by the plaintiff until the judgment was satisfied.
About 150 B.C. the lex Aebutia abolished the necessity of using this ritual legis actio, and accepted in its place a procedure per formulam. Specific acts and words were no longer required; the parties shared with the magistrate in determining the form under which the matter was to be submitted to the judge; and the magistrate then wrote to the judge an instruction (formula) on the factual and legal questions involved; it was partly in this way that the praetor, as magistrate, made “praetorian law.” In the second century A.D. a third mode of action—cognitio extraordinaria—came into use: the magistrate decided the case himself. By the end of the third century the formulary procedure had disappeared, and the summary judgment of a magistrate responsible only to the emperor, and usually owing his office to him, reflected the coming of absolute monarchy.
The litigants could conduct their case, and the praetor or judge decide it, without the help of lawyers if they wished; but as the iudex was not often a professional trained in the law, and the litigants might at every step stumble over a technicality, all parties to a dispute usually sought the aid of trial lawyers (advocati), legal technicians (pragmatici), consultants (iurisconsulti), or jurists (iurisprudentes). There was no lack of legal talent, for every fond parent yearned to see his son an advocate, and the law, then as now, was the vestibule to public office. A character in Petronius gives his son a collection of red-backed books (codices) “to learn a little law,” as “it spells money.”28 A law student began by learning the elements from some private instructor; in his second stage he attended the consultations of eminent jurists; thereafter he apprenticed himself to a practicing lawyer. Early in the second century A.D. certain iurisconsulti set up in various parts of Rome schools (stationes) at which they gave instruction or advice in the law; Ammianus complains of their high fees, saying that they charged even for their yawns and made matricide venial if the client paid enough.29 These teachers were called iuris civilis professores; apparently the title of professor came from the fact that they were required by law to declare (profiteri) their intention of teaching, and to secure a license therefor from the public authority.30
Out of the many lawyers so trained there were inevitably some who sold their learning to sordid causes,31 accepted bribes to present their client’s case weakly,32 found loopholes in the law for any crime, fomented disputes among rich men, dragged on suits to any lucrative length,33 and shook the courts or the Forum with their intimidating questioning and their vituperative summations. Forced to compete for cases, some lawyers sought to build a reputation by walking hurriedly through the streets with bundles of documents in their hands, borrowed rings on their fingers, dependents attending them, and hired claqueurs to applaud their speech.34 So many ways had been found of circumventing the old Cincian law against fees that Claudius legalized them up to 10,000 sesterces per case; any fee above this figure was to be recoverable by law.35 This restriction was easily evaded, for we hear of a lawyer in Vespasian’s reign amassing a fortune of 300,000,000 sesterces ($30,000,000).36 As in every generation, there were attorneys and judges whose clear and disciplined minds were at the service of truth and justice regardless of fee; and the lowest practitioners were redeemed by the great jurists whose names are the highest in the history of the law.
Courts for the trial of offenders varied from the hearings held by individual judges or magistrates to the assemblies, the Senate, and the emperor. Instead of a single judge the praetor might choose by lot (subject to a number of challenges by accuser and defendant) a jury of almost any size, usually fifty-one or seventy-five, from the 850 Senatorial or equestrian names on the jury list. Two special courts were permanently maintained: the decemviri, or Ten Men, to try cases of civil status; and the centumviri, or Hundred Men, to hear suits in property and bequest. The proceedings of these bodies were open to the public, for the younger Pliny describes the great crowd that came to hear him address the larger court.37 Juvenal38 and Apuleius 39 complain of judicial procrastination and venality, but their very indignation suggests exceptional cases.
Trials were marked by a freedom of speech and action seldom known in modern courts. Several lawyers might appear on each side; some specialized in preparing the evidence, some in presenting it. The proceedings were recorded by various clerks (notarii, actuarii, scribae), and were sometimes taken down in shorthand; Martial says of certain scribes, “However fast the words may run, their hands are quicker still.”41 Plutarch tells how stenographers took down the speeches of Cicero, often to his discomfort. Witnesses were dealt with according to time-honored precedents. Says the exemplary Quintilian:
In the examination of a witness the first essential is to know his type. For a timid witness may be terrorized, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness must be dismissed at once as malicious and obstinate; or … if his past life admits of criticism, his credit may be overthrown by the scandalous charges that can be brought against him.42
Almost any kind of argument might be made by the advocate. He could show the court pictures of the alleged crime, painted on canvas or wood; he could hold a child in his arms while arguing a point; he could bare the scars of an accused soldier or the wounds of a client. Defenses were contrived against these weapons. Quintilian tells how one attorney, when his opponent illustrated a summation by bringing his client’s children into court, threw dice among them; the children scrambled for the tesserae and ruined a peroration.43 The slaves of either party to a suit might be tortured to elicit evidence, but such evidence was not admissible against their owners. Hadrian decreed that slaves should be tortured for evidence only as a last resort and under the strictest regulations, and he warned the courts that evidence secured by torture could never be trusted. Legal torture nevertheless persisted, and was extended in the third century to freemen.44 The jury voted by depositing marked tablets in an urn; a majority sufficed for a decision. In most cases the loser might appeal to a higher court, and finally, if he could afford it, to the emperor.
Penalties were fixed by law rather than left to the discretion of the judge. They varied with the rank of the offender, being severest for the slave; he might be crucified, the citizen might not; and no Roman citizen, as every reader of the Acts of the Apostles knows, could be scourged, tortured, or put to death over his appeal to the emperor. Different penalties were laid upon honestiores and humiliores for the same crime; they varied also according as the offender was freeborn or freeman, solvent or bankrupt, soldier or civilian. The simplest punishment was a fine. Since the value of currency changed more rapidly than the penalties named in the law, certain anomalies ensued. The Twelve Tables exacted a fine of twenty-five asses (originally twenty-five pounds of copper) for striking a freeman; when rising prices had lowered the as to six cents Lucius Veratius went about striking freemen in the face, followed by a slave who counted out twenty-five asses to each victim.45 Some offenses resulted in infamia (“speechlessness”), chiefly the inability to appear, or be represented by another, in an action at law. A more stringent punishment was loss of civic rights (capitis deminutio), which took the progressive forms of incapacity to inherit, deportation, and enslavement. Deportation was the harshest form of exile: the condemned man was put in chains, confined in some inhospitable place, and deprived of all his property. Exilium was milder in allowing the victim to live in freedom wherever he pleased outside of Italy; relegatio, as in the case of Ovid, involved no confiscation, but compelled the outcast to stay in a specified town, usually far from Rome. Imprisonment was seldom used as a permanent punishment, but men might be condemned to menial labor on public works, or in the mines, or in the quarries of the state. Under the Republic a freeman sentenced to death could escape the penalty by leaving Rome or Italy; under the Empire the death penalty was imposed with increasing frequency and ruthlessness. Prisoners of war, and in some cases other condemned men, might be thrown into the Career Tullianum, to die of starvation, rodents, and lice in underground darkness and irremovable filth.46 There Jugurtha died, and Simon Ben-Giora, heroic defender of Jerusalem against Titus. There, said tradition, Peter and Paul had languished before their martyrdom, and had written their last addresses to the young Christian world.