BOOK I.

Order

of the

speeches.

verdict that the jury was not satisfied (sibi non liquere)1 appears to have been the rule rather than the exception. Such adjournments precede Cicero's pleadings for Caecina, for Tullius and for Quinctius; nor did the same advocates always appear at the different hearings. But on each occasion the whole narrative of the facts (narratio) is resumed again, and the renewed arguments cover the whole of the ground. In a single hearing (actio) but one speech seems to have been delivered on either side; that for the plaintiff came first: then followed the argument for the defence, and this usual order is the ground (though not the justification) for Cicero's frequent complaint in the pro Quinctio, that, though his client is practically on the defence, he has to occupy the position of a plaintiff in the order of debate 3. The length of the speeches was not speeches. prescribed, and the device of staving off an immediate verdict, which would be given under circumstances unfavourable to his client, by wasting the day in oratory (dicendo diem eximere), was known to the Roman lawyer. On this point Cicero naturally adopts the point of view dictated by circumstances. In the speech for Quinctius there is a warm protest against any attempt to limit the pleadings; in that for Tullius there is an entreaty that the other side should not abuse its privilege of speech 5.

Length

of the

Evidence The evidence from witnesses seems to have been taken (i) from witnesses. after the case had been opened and answered by the patroni; comments on their evidence were possible in the examination and cross-examination (testium interrogatio) which followed its delivery; but, if the actio

1 Cic. pro Caec. II, 31.

2 Cic. pro Quinct. 3 ff.; pro Tull. 6 ff.; pro Caec. 4 ff.

Cic. pro Quinct. 2, 8; 22, 71; see p. 258, note 4.

Cic. l. c. 9, 33; 10, 34; 22, 71.

Cic. pro Tull. 3, 6

Unum hoc abs te, L. Quincti, pervelim impetrare . . . ut ita tibi multum temporis ad dicendum sumas ut his aliquid ad iudicandum relinquas. Namque antea non defensionis tuae modus sed nox tibi finem dicendi fecit.'

Titius in Macrob. iii. 16, 16.

lasted only one day, there was no possibility of treating PART II. the evidence as a whole or presenting it to the iudex in connexion with the arguments for the case, for it was taken after counsel's speeches had been delivered. But a single hearing must have been very exceptional in an important case, and, if a second actio followed, there was ample opportunity for dealing with the evidence heard on the first occasion: an opportunity which Cicero seizes in his speeches for Caecina and for Tullius 1.

evidence

The evidence of witnesses was given voluntarily, and no Their compulsion for their appearance seems to have been exer- voluntary. cised by the court except in certain cases. By an enactment of the Twelve Tables the witnesses to a mancipatio were bound to appear to testify to its conclusion 2, and, in a trial based on administrative law but conducted according to the forms of civil procedure, the magistrate who gave the iudicium was allowed the right of commanding by summons (denuntiatio) the presence of a certain number of witnesses 3. The number that might be produced by either party in an ordinary civil suit was unlimited, and only in recuperatorial iudicia is there the possibility of its having been limited by law and by the edict. The sole qualification for a witness in civil procedure was that he should be a free man 5.

6

The witnesses were heard only on oath ; but the scrupu- Oath.

1 For reflections by the patronus on the credibility of the evidence see Cic. pro Quinct. cc. 18, 23, 28; pro Caec. cc. 9 and 10; pro Tull., cc. I and 10.

2 Gell. xv. 13. II. Mommsen regards the permit of the XII Tables 'Cur

TESTIMONIUM DEFUERIT, IS TERTIIS DIEBUS OB PORTUM OBVAGULATUM ITO' (Fest. pp. 233 and 375), not as a summons to evidence but as a public proclamation of the intestabilitas of the man who had failed as a mancipation witness (Zeitschr. f. Alterthumsw. 1844, p. 457 ff.).

See p. 268, note 3.

p. 268.

In post-Republican law the torture of slaves, and, therefore, their whole evidence so far as civil procedure was concerned, was permitted only in cases of hereditas and tutela (Paul. Sent. v. 15, 6; 16, 2).

• Cic. pro Rosc. com. 15, 44 and 45; pro Caec. 10, 28.

:

BOOK I. lousness of the Roman character is shown in the form in

Secondhand

which their evidence was tendered. Even when they stated what they had seen or heard, they expressed it in the form

that they thought' (se arbitrari) the facts which they adduced to have occurred. If we may judge from Cicero's evidence. treatment of second-hand evidence, there could have been no rules against its admissibility 2; indeed such rules, although they may be necessary to protect an ignorant jury with whom impressions are stronger than the degrees of probability on which they are based, were hardly required for a Roman iudex or recuperatores. It was better that they should hear all, even the reported statement of an unsworn man, and draw their own conclusions. The weakness of such evidence might of course be dwelt on by the opponent: an attack which Cicero can only meet by the sophistic argument that lying and perjury are the same 3. Written evidence taken out of court, and presumably in most cases based on oath, was produced and read; in an instance of evidence of this kind which we find employed by Cicero, the witnesses, whose depositions are produced in writing, report a conversation with some one who is the ultimate source of the testimony, and the force of such attenuated evidence could hardly have exercised a powerful influence on the court.

(ii) Written docu

ments.

Written documents (scripta, tabulae, instrumenta) were

1 Cic. Acad. Prior. ii. 47, 146 ‘(maiores) quemque voluerunt . . . qui testimonium diceret ut arbitrari se diceret etiam quod ipse vidisset.' Cf. pro Font. 13, 29' illud verbum... arbitror, quo nos etiam tunc utimur cum ea dicimus iurati quae comperta habemus, quae ipsi vidimus.'

Cic. pro Rosc. com. 15, 43. On such testes de auditu ef. Quintil. Inst. Or. V. 7, 5.

Cic. l. c. 15, 44; 16, 46' At quid interest inter periurum et mendacem? Qui mentiri solet, peierare consuevit.'

Cic. l. c. 14, 43 ff. Mommsen (l. c.) bases these testimonia per tabulas data on the voluntary nature of Roman evidence. As a man could not be forced to attend, his written evidence was attested and presented; but it is evident that the attestation is no substitute for the oath; it only guarantees the accuracy of the statement of the original witness.

abundantly cited as proof: and, if there were any doubt PART II. about their genuineness, or their contents demanded closer investigation, were passed on to the iudex1. Of these some were public-laws, decrees of the senate, clauses of the edict and the like-others of a private character such as wills, account-books, stipulations and written compacts of a more informal character 2. A stipulatio is put in during the case of Roscius 3, and account-books figure largely in the same suit. The evidence from these was irresistible, if the tabulae or codices accepti et expensi of the plaintiff and defendant agreed, an entry in the credit account of one being balanced by a similar entry in the debit account of the other; it was weaker when the entry was found only in one, and very weak indeed when it could be discovered only in the waxen adversaria of some time back and had not been entered in the permanent parchment codex*. But that such evidence could be produced and ruled admissible is only another illustration of the healthy principle of admitting everything to the cognizance of the court. A purely private memorandum, such as the diary (ephemeris) which Quinctius put in 3, might be entered to support a statement on a given point such as the date of

an occurrence.

Consider.

After the cognizance (causae cognitio) was over, the ation iudex with his assessors, or the recuperatores, retired to

For their inspection by the iudex see Titius in Macrob. iii. 16, 16 'tabulas poscit, literas inspicit.'

2 Cic. Part. Orat. 37, 130 'Scriptorum autem privatum aliud est, publicum aliud; publicum lex, senatus consultum, foedus: privatum tabulae, pactum, conventum, stipulatio.'

Cic. pro Rosc. com. 13, 37; cf. pro Caec. 25, 71.

⚫ Cic. pro Rosc. com. 2, 5' Suum codicem testis loco recitare arrogantiae est. Suarum perscriptionum et liturarum adversaria proferre non amentia est? (§7) adversaria in iudicium protulit nemo: codicem protulit, tabulas recitavit.' For such evidence cf. in Verr. ii. 76 ff.; pro Flacco, 20, 48; and see Gasquey, Cicéron Iurisconsulte, p. 151.

• Cic. pro Quinct. 18, 57, 58.

For these assessors (consilium or advocati of the iudex) see Cic. pro Rosc. com. 4, 12; 5, 15; 8, 22; pro Quinct. 2, 5; 10, 36.

of the

verdict.

decision of

BOOK I. consider the verdict in secret (in consilium ire)1. In Grounds coming to a decision they were not bound by any strict of the mechanical rules of evidence. According to the principle the iudex. laid down by Cicero, which was the principle of Roman criminal as well as civil process, the general subjective impression derived by the judge from the proceedings must decide his verdict 2, the only modifying rule being the obvious one that, with certain exceptions 3, the burden of proof lies on the plaintiff+; this rule underlies the maxim formulated by the elder Cato that when evidence fails and the decision turns on character, the defendant's character must be considered first 5. There were no fixed terms in sentence. which the sentence was delivered; the cautiousness of the Roman character was betrayed in the fact that the iudex gave his binding judgement as an opinion (videri), generally with the hesitating addition si quid mei iudicii est".

Form

of the

The res iudicata.

Enforcement of the sen

tence.

But this tentative statement expressed the unalterable fact of a res iudicata and created, according to the scientific analysis of the lawyer, the new obligation iudicatum facere oportere 8.

This contract we should expect to be enforced purely by the executive arm; but such had not been the tradition of Roman law. It is true that the legis actio per manus iniectionem was a mode of execution, but it was also an action, which might under certain conditions be contested by its victim. Something resembling a new process had always resulted as the consequence of a judgement.

We cannot say in what form this legis actio maintained

Cic. pro Quinct. 10, 34. Cf. Titius in Macrob. l. c.

Cic. de Rep. i. 38, 59 'apud me, ut apud bonum iudicem, argumenta plus quam testes valent.'

3 For these exceptions see Bethmann-Hollweg, ii. p. 611.

⚫ Cic. Part. Orat. 30, 104 Nemo enim eius, quod negat factum, potest aut debet aut solet reddere rationem.' Cf. p. 229.

Gell. xiv. 2, 25.

Cic. de Fin. ii. 12, 36.

6

Cic. Acad. Prior. ii. 47, 146.

Gaius, iii. 180. See p. 246.