THE JUDGE

It could be said of the Roman legal system that its pervasion by improper influences made equality before the law unattainable.¹ This section is designed to show that the judicial system at its best was still far from equitable, because it was permeated by influences which, in Roman eyes, were perfectly proper.

The ground covered will be the actual judicial proceedings, especially the hearing of the parties and their advocates and wit­nesses, and the impact of these persons on the judge.² In a sub­section the torture of witnesses will be discussed.

Proper and improper influences

Cicero recognized three forces which had an adverse effect on the working of the law: gratia, potentia, pecunia.

quod enim est ius civile ? quod neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit.³

Pecunia stands for judicial bribery, which of course was never accorded social approval.

¹               This is Kelly’s theme (op.

²               The discussion is relevant to proceedings in either civil or criminal courts.

³               Cic. pro Caec. 73 (quoted Kelly, op. cit. 33): ‘What is the civil law? That which can be neither perverted by favour nor violated by influence nor falsified by money.’

⁴               Pecunia may refer simply to the possession of money (Cic. de inv. 2. 59. 177), but another term is adopted here to avoid ambiguity.

Apparently the owner of substantia modica, some property, had this quality: ‘But it is better for the praetor to decide by judicial investigation whether or not a patron and his sons ought to give security; so that, if he is respectable, he should be excused security, and especially if he has some property, while if he is common and less respectable, it should be said that there is reason for payment of security. Thus security is called for either by reason of the kind of guardianship, or its cause, or the character of the guardian.’¹ On the other hand, Ulpian was ready to affirm that poverty in a guardian was not sufficient cause for his dismissal. It must have been a common assumption of judges that a poor man’s character was adversely affected by his economic position.²

Pliny praised his friend Calestrius Tiro for his success, as governor, in honouring dignitas without displaying gratia? Gra- ¹ Dig. 26. 4. 5.1.

¹ See Dig. 26. 10. 8: ‘suspectum tutorem eum putamus, qui moribus talis est, ut suspectus sit; enimvero tutor quamvis pauper est, fidelis tamen et dili­gens, removendus non est quasi suspectus.’ In Cic. de inv. 2. 59. 177 wealth is one of the extraneae virtutes. Cf. Auct. ad Herenn. 1. 5. 8; 3. 6. 10. See also pp. 232-3.

’ ‘potentia est ad sua conservanda et alterius adtenuanda idonearum rerum facultas.’ Cic. de inv. 2. 56. 169. Potentia is soon afterwards presented as one of the extraneae virtutes (ibid. 2. 59. 177).

⁴  Quint. Inst. Or. 9. 2. 68.

* Tac. Ann. 1. 75: ‘set dum veritati consulitur, libertas corrumpebatur.’ The freedom is presumably that of the influential to apply pressure, and that of judges to submit to that pressure.

⁶  Pliny, Ep. 9. 5 (quoted pp. 77—8).

tia is closely related to potentia.

Arguments from the persona of the accused were regularly used at any stage of the trial, and indeed might be employed before the trial itself. There is plenty of evidence that Cicero the politician and patron used his influence well before the trial stage on behalf of friends and clients who found themselves involved in legal disputes.³ Cicero the rhetorician provided a stock speech for the use of the defendant whose case was slipping away, and whose only hope of saving the day was to lodge a plea for pardon. He could plead his good record and the services (beneficia) performed by his ancestors:

Afterwards, if there is an opportunity, he will demonstrate that he is either of the same blood as great men and leaders, or that his family have been their friends from early times. He will show how deep is his own good will, how noble the breeding and how high the rank of those who want to see him safe, and that he possesses all the other things which are associated with personal honour and distinction. His plea will be forceful, but not arrogant?

size=2 color=black face="Times New Roman">*       Suet.

*       Of course gratia does not always have a pejorative sense. See, for example, Cic. adAtt. 3. to. 2; 11. 2; 4. 1. 3; etc. (non-judicial contexts).

³               Cic. ad fam. 13. 26; cf. 28A (a governor at Cicero’s request defends the interests of a senator in contests over property of which he is the heir. The property was originally fraudulently appropriated); 54 (prevention of a prosecu­tion); etc. Such requests normally include a face-saving clause such as ‘sicuti tua tides et meus pudor postulat* (ibid. 58). See also Fronto, ad am. 1. 1 (ed. van den Hout, p. 164); and G. E. M. de Ste Croix, art. cit. (p. 188 n. 3), 42 ff.

⁴               Cic. de inv. 2. 35. 107. In the opposing speech nothing is said against the argument from the persona.

The influence that the personae of the parties might have on the judge is nowhere more vividly revealed than in a passage of Aulus Gellius describing his own experience as a private judge in a money dispute.¹ Gellius found that he was in sympathy with one party and hostile to the other. The basis of the contrast between the two men was character, although Gellius also had in mind their social and economic situations.² In any case, character, or way of life, in the Roman view, was intimately connected with social position: boni mores, good character, were nothing less than the virtues of the higher orders.³

Gellius frankly admitted that the arguments of the claimant were thin, unsubstantiated as they were by documentary evidence of any sort, or by witnesses.⁴ But he was a fine and upright man, while his opponent was a scoundrel.⁵ The character contrast be­tween the two men must have been brought up in court, for at one point the defendant protested, reasonably enough (in our eyes), that the matter was quite irrelevant.

*       Gellius, Noct. Att. 14. 2.

*Yet see n. 5 below, and p. 211 n. 1.

³               See Quintilian’s comment (Inst. Or. 5. to. 24) to the effect that there is sometimes a causal connection between birth (genus) and manner of life (‘et nonnumquam ad honeste turpiterque vivendum inde causae fluunt’). Cf. Dig. 47. 2. 52. 21, where honestus vir is synonymous with vir locuples. In general, it is interesting that a word with a primarily moral meaning, honestus, should have been chosen to describe men of high social status, honestiores. For a fuller discussion of this question see pp. 223; 231 ff.

⁴  § 4: 'argumentis admodum exilibus nitebatur.’

^$ Gellius also calls the claimant non bonae rei, which should be translated ‘not possessed of good fortune*. See § 6.

⁶               § 8: 'rem enim de petenda pecunia apud iudicem privatum agi, non apud censores de moribus.*

^{size=2 color=black face="Times New Roman">7} § 10: ‘sed enim ego homines cum considerabam, alterum fidei, alterum probri plenum spurcissimaeque vitae ac defamatissimae, nequaquam adduci potui ad absolvendum.’ Notice the emphasis on fides, a high-status virtue; cf. p. 227 below.

sophist Favorinus. Favorinus cited words of Marcus Cato, spoken as an advocate in a trial. Cato had said that if the cause was evenly balanced, the judge should be asked to decide ‘which of the two parties was the better man’.¹ The decision was to be in favour of the defendant only if there was nothing to choose between the two men. This, Cato added, was not a private opinion of his own, but a traditional Roman attitude.²

One might have thought, as Favorinus did, that Gellius’ course was now clear. But, to his credit, Gellius did not declare for the claimant. He preferred to back out of the case, with an oath that the matter ‘was not clear to him’ (mihi non liquere}, pleading that his years were few and his merit slight.

Cato had held that the issue should hang on the characters of the two parties only if there were no witnesses. There were none in Gellius’ case.³ Where witnesses were available, their characters and social position were just as relevant as the quality of their evidence.

A list of those who could not act as witnesses (intestabiles} was included in the Julian law on violence, and is preserved in excerpts from both Ulpian and Callistratus.⁴ But there were some doubtful categories which were not specifically mentioned in this law or other laws. Papinian discussed the case of the man convicted of calumnia in a indicium publicum. His comment was that judges should show religio (scrupulousness) in weighing the testimony of someone with this background, and, for that matter, in weigh­ing the testimony of any witness: ‘But what is omitted by the laws will not be omitted by scrupulous judges \religione iudican- tium\_t whose duty it is to examine the reliability [fadem] even of the evidence given by a man of honest exterior*.⁵ The key word is fades, reliability or trustworthiness. ‘The trustworthiness of

^x § 21: ‘uter ex his vir melior esset’. Melior does not have a narrow moral reference.

² § 2i: ‘ita esse a maioribus traditum observatumque ait’.

³ §22.

⁴               Coll, 9. 2 (Ulp.); Dig, 22. 5. 3. 5; (Call.); cf. ibid. 20 (Ven. Sat.); ibid. 21. 2; 1 praef. (Arc. Char.); and see Buckland, op. cit. 92.

⁵               Dig, 22. 5. 13 (Pap.): ‘verumtamenquod legibusomissum est, non omittetur religione iudicantium ad quorum officium pertinet eius quoque testimonii fidem, quod integrae frontis homo dixerit, perpendere.’ witnesses should be carefully scrutinized’, wrote Callistratus,¹ and the following sentences indicate the factors which in his mind made for trustworthiness: ‘It is especially important to examine the status of each man, to see whether he is a decurion or a com­moner; to ask whether his life is virtuous or marred by vice, whether he is rich or poor (for poverty might imply that he is out for gain), and whether he is personally hostile to the man against whom he is witnessing, or friendly to the man whose cause he is advocating..

The investigation of a witness, then, did not aim at establishing his interest or lack of interest in the trial. His character, his position in society, and his economic condition were all thought to have a bearing on the degree to which he could be trusted.²

Callistratus went on to quote a series of rescripts of Hadrian which provided the authority for his statements. Hadrian would not accept written testimonia, but insisted on interrogating wit­nesses. If none were sent to him, he would remit the whole case to the relevant governor (if the suit involved provincials), for him to inquire into the fides of the witnesses. The theme of the other rescripts is that dignitas, existimatio, and auctoritas in a witness (three virtues of the higher orders) stood him in good stead.³

¹               Courts of law in modern democratic societies would, theoretically, regard these last factors as extraneous (unless a previous conviction for perjury should bring the defendant’s character into consideration).

³               Dig. 22. 5. 3. 3; cf. 3.4. Ibid. 3.1; ibid. 3. 2 (dignit as) \ ibid. 3. 1 (existimatio); ibid. 3. 2\ 3. 4 (auctoritas). All references are to Hadrianic rescripts. It should be stressed that as long as there had been law courts (and rhetorical schools) attention had been drawn to the persona of the witness. See, e.g., Auct. ad Herenn. 2. 6. 9: ‘a testibus dicemus secundum auctoritatem et vitam testium et constantiam testimoniorum.’ Cf. Quint. Inst. Or. 5. 7. 24; see J. Ph. L6vy, Studi in onore di Biondo Biondi (1965), ii. 29 ff.

⁴               Dig. 48. 2. 16 (Ulp.): ‘si plures existant, qui eum in publicis iudiciis accusare colunt, iudex eligere debet eum qui accuset, causa scilicet cognita aestimatis accusatorum personis vel de dignitate, vel ex eo quod interest, vel aetate vel moribus vel alia iusta de causa.’ Clearly a whole class of people might be overlooked on these criteria, quite apart from those who did not possess the ius accusandi} see Coll. 4. 4.

of justice and equity (bonum et aequum),¹ he might decide upon a greater or lesser sum in accordance with the prestige of the injured party, and the gap between his prestige and the prestige of the agent. It was considered perfectly proper that verdicts should be affected in this way: justice and equity were thought thereby to have been achieved rather than compromised. In general, it caused the Romans no concern that there was a divergence between the law as it was written and the law as it was applied. Equity was not the same as the letter of the law; it was on a different, higher plane. The remark of Papinian, made in the context of a discussion on witnesses, can be given a general application: the omissions of the laws were rectified by the directives of Emperors, the inter­pretations of jurists—and the scrupulousness of judges (religio iudicantium).²

The torture of witnesses

In some criminal trials the torture of witnesses was permitted, but, in theory, free men were exempt. In Athens and Rhodes, according to Cicero, not only free men, but also citizens, were tortured.³ So far was this from being the case in Rome that it was a common manoeuvre to manumit one’s slaves so that they might avoid torture.⁴ The legis lator of the Lex Aelia Sentia made it his business to close this loophole in the law;⁵ but he could not have been entirely successful, because Pius returned to the matter in a rescript.⁶

In line with the principle established under the Republic, when torture was applied to witnesses in the Julio-Claudian

¹               See p. 198.

²               Dig. 22. 5. 13 (quoted p. 211 n. 5). On equity and the law see Cic. de iny. 2. 46. 136; cf. 2. 45. 131: the place of equity is in an argument 'ex ingenio eius qui contra legem fecerit, non ex lege’.

³               Cic. part. or. 118. On torture see Mommsen, Straf. 405 ff.; Ehrhardt, RE 6* 0937), 1775-94, s.v. tormenta.

⁴ Cic. pro Cael. 68; pro Mil. 57.

⁵               Dig. 40. 9. 12 praef. (Ulp.). When evidence from a slave was admitted, it was taken normally by torture {Dig. 48. 18. 9 praef.; 20; Cf 3. 32. 10 (a.d. 290); Mommsen, op. cit. 412 ff.; Buckland, Roman Law of Slavery (1908), 87). It was probably inadmissible otherwise {Dig. 48. 18. 1. 16).

⁶               Dig. 48. 18. 1. 13. See also PS 5. 16. 9; CJ 9. 41. 10 (a.d. 290). Inquiry super statu ingenuitatis of a possible witness still took place under Diocletian and Maximian. See CJg. 41.9 (a.d. 290); cf. Dig. 48.18.12 (Hadr./Ulp.); 48.5.28.5· period, the witnesses were slaves.¹ Augustus countenanced the use of torture on slaves in cases of gravity when there seemed no other way of arriving at the truth: ‘I consider that tortures should not always be resorted to, in respect of every case and person. When the more serious and capital crimes cannot be examined and investigated otherwise than by the torture of slaves, I believe torture is the most effective way of discovering the truth, and resolve that it should be used.’² But there was one practical ex­ception to the rule that only slaves were tortured—maiestas. The reason was obvious enough: the Emperor’s life might be in danger. In time, it became a rule that anyone involved in a treason trial might be tortured. Arcadius Charisius wrote in the late third or early fourth century: ‘But when the charge is treason, which con­cerns the lives of Emperors, all without exception are tortured, if they are called to give evidence, and when the case requires it.’³ The torture of free men is well enough documented, but in some cases it is not clear whether any of the men involved were witnesses. For example, Dio⁴ says that after Germanicus’ death in A.D. 20, Tiberius began to torture free men and citizens, as well as slaves, in treason trials. No examples are given. Again, Macro is said to have employed torture as praetorian prefect, perhaps mainly in the interrogation of suspects.⁵ Under Nero a freedman testified, when tortured, against his patron, an ex-praetor, suspected of complicity in the Pisonian conspiracy.⁶ An equestrian, Antonius Natalis, and a senator, Flavius Scaevinus, revealed the names of the leaders of that plot against Nero’s life.⁷ Nero’s predecessor, Claudius, had sworn to torture no free man,⁸ but he too considered that conspirators were an exception.⁹

At the end of the century, the position was no different: slaves

¹               Tac. Ann. 2. 30; 3. 14; 3. 22; 3. 67; etc. The status of the witnesses is not always reported; e.g. ibid. i. 74 (Granius Marcellus). On the condition of such slaves see Dig. 48. 5. 28. n-14.

²               Dig. 48. 18. 8 praef.

³               Dig. 48. 18. 10. 1 (Arc. Char.); cf. PS 5. 29. 2; CTh 9. 5. 1 = CJ 9. 8. 3 (a.d. 314).

⁴                                                                                                                                                                       lang=EN-US>Dio 57. 19. 2.  ⁵ Ibid. 58. 21. 3; 24. 2; 27. 2.

⁶                                                                                                                                                                                                                                      Tac. Ann. 16. 20. ⁷ Ibid. 15. 56.

⁸               Dio 60. 15. 6.

⁹               Ibid. 60. 31. 5 (Silius/Messallina affair): Tac. Ann. 11.22 (Cn. Nonius, an equestrian).

alone might be tortured.¹ It was as if Claudius’ oath stood, for every successive Emperor. Hadrian again ruled out torture of the free.² He shared Augustus’ scepticism about the fides of a witness who had been examined under torture.³ Again, Hadrian rejected the use of the testimony of slaves against their masters.⁴ This was no new departure—there was an old senatusconsultum on the sub­ject.* A problem arose if slaves were tortured as ‘accomplices’ and in the process gave information which damned their masters. Trajan left the matter to the judge’s discretion: ‘he should rule as the case demands.’⁶ Ulpian thought this rule worked to the dis­advantage of the master, and observed that subsequent constitu­tions had improved his position. One was issued by Hadrian.⁷

Pius’ position was virtually identical with Hadrian’s at every point. Torture was not to be used on the free man; if a slave had been freed specifically to enable him to escape torture, torture could be applied to him.⁸ Pius also discouraged the hasty use of torture.⁹ As for the torture of a slave against his master, on this subject Pius reiterated Hadrian’s words.¹⁰

¹               From the Flavian period there is nothing to record apart from the torture of witnesses during the trial of an ex-praetor who was involved in the disgrace of Cornelia, the chief Vestal Virgin (Suet. Dom. 8. 4).

² Dig. 48. 18. 12 (indirect).

³               See Dig. 48. 18. 1 praef.-z; ibid. 1. 4 (Marcus and Verus). Other evidence was needed before notice was taken of the testimony of a slave (Dig. 48. 18. 18. 3; CJ 9. 41. 8; PS 5. 14. 4). Note the sarcasm of Cicero when he speaks of the * value’ of torturing slaves (pro Mil. 60; but cf. Deiot. 3). The whole subject is treated at length by Ulpian (Dig. 48. 18. 1. 23-7); see also Vai. Max. 8. 4; Auct. ad Herenn. 2. 7. 10 (arguments for and against); Quintilian (Inst. Or. 5. 4. 1) commented briefly that the speeches veterum ac novorum were full of the topic.

⁴               Dig. 48. 18. 1. 5; cf. ibid. 9. 1; 17. 2; 1. 12. 1. 8; 29. 5. 6. 1; Cy 4. 20. 8 (a.d. 294); PS 1. 12. 3; 5. 13. 3; 5. 16. 4 = Dig. 48. 18. 18. 5; 5. 16. 5.

⁵Tac. Ann. 2. 30. There were exceptions, such as incest (Cic. part. or. 118; pro Mil. 59; de n.d. 3. 30. 74; Vai. Max. 6. 8. 1; Ascon, in Mil. p. 46; Suet. Dom. 8.4; Dig. 48. 18.4-5), treason (Cic. part. or. 118; see R. S. Rogers, TAPA 64 (1933), 18 ff., for references from Tac. Ann.; Dig. 48. 4. 7. 2; 48. 18. 10. 1; Cyg. 41.1 (a.d. 196); 9. 8. 6. 1; PS 5.13. 3), adultery (from the time of Marcus: Dig. 48. 18. 17 praef.; cf. Cy 9. 41. 1; Dig. 40. 9. 12. 1-2; 48. 5. 28. 6; ibid. 28. 8-13; 48. 18. 5; Tac. Ann. 14. 60), fraudatus census (CjT 9. 41. i),falsum testimonium (Dig. 48. 18. 6. 1), forgery of coins (Dig. 5. 1. 53), etc.

⁶ Dig. 48. 18. 1. 19: ‘prout causa exegerit, ita pronuntiare eum debere.’

⁷ Ibid. 1. 5; cf. ibid. 1. 22.                                                        ⁸ Ibid. 1. 13.

⁹               Dig. 29. 5. 1.5. This was not intended as a general comment, but concerned specifically the torture of ‘(is) cui fideicommissa libertas pure debetur’.

¹⁰            Dig. 48. 18. 1. 5.

But there are signs that torture was becoming more common. The torture of slaves in pecuniary cases was introduced. Pius issued the ruling: ‘Torture may be applied to slaves in a pecuniary case if the truth cannot otherwise be discovered.’¹ Another text suggests that free men were sometimes tortured. The authority is Callistratus, the Severan lawyer: ‘It is not right to torture a free man when his evidence does not waver.’² The implication is, that torture was applied, whether the witness’s testimony wavered or not. Finally, by the turn of the fourth century or soon after, it was regular for decurions to be tortured for falsum, and all alike to be tortured for magic as well as treason.³ This seems to have been a post-classical extension. In the period of the classical lawyers, except in the case of treason, honestiores seem to have been exempt from torture.

Conclusion: the social status of defendants

Given the obstacles confronting a plaintiff who lacked power and rank in his attempt to bring to justice an opponent of higher standing, it is reasonable to ask whether such suits ever occurred.⁴ In a well-known case in the elder Seneca’s Controversiae, a rich man mocks a poor man for being unwilling to prosecute him for the murder of his father. He is made to say: ‘Why don’t you accuse me, why don’t you take me to court ?’ It seems that the poor man is not unable to take the rich man before a magistrate, but that, even if he should do so, the rich man would have no cause for anxiety: ‘This rich man was powerful and influential, as not even he denies, and thought he never had anything to fear, even as a defendant.. .’ The source of the poor man’s frustration (he is made to exclaim: ‘Am I, a poor man, to accuse a rich man?’)

¹               ‘posse de servis haberi quaestionem in pecuniaria causa, si aliter veritas inveniri non possit* (Dig, 48. 18. 9 praef.). This was confirmed by Severus. Augustus had restricted the use of torture to capitalia et atrociora maleficia. See Dig, 48. 18. 8 praef. (a.d. 8). In a pecuniary case the issue was payment of a sum of money, e.g. as fine or damages.

²               ‘ex libero homine pro testimonio non vacillante quaestionem haberi non oportet’ (ibid. 15 praef.).

³      See pp. 142-3.

⁴               Kelly (op. cit. 62 ff.) has suggested that the average lawsuit was either between equals or was brought by a plaintiff of superior social status and power against an inferior.

was not that he could never effect a summons, but that he could not hope to secure a conviction. It turns out that his father had been murdered for having had the effrontery to engage the rich man in litigation. The rich man all but exclaimed: ‘What would I not be ready to do to you if you impeached me, I who saw to the death of a man who merely engaged in litigation with me?’¹

To judge from this story, the possibility of suits brought by men of comparatively humble origin and position against men of rank cannot be ruled out; but they are unlikely to have been a frequent occurrence. This was not because of the existence of powerful, intractable defendants who, caring little for their public reputation, refused to submit to trial. This class was probably small, for three reasons. First, the desire even of the strong to be respected in society, and to stay on the right side of the magis­trates and the law, should not be underestimated. Second, the threat of penalties and disabilities, and later, of criminal prosecu­tion, might have succeeded where social pressures failed in persuading a potential resister of the wisdom of going to law. Third, as the story in Seneca demonstrates, a strong defendant might consent to face praetor and judge, in the knowledge that he stood a good chance of winning his case against an enemy of lower status, because of the partiality of the courts. Moreover, and this is the other side, if it is conceivable that a powerful defendant was ready to go to law because he was confident of his prospects, it is much more likely that a man of low rank who had suffered at his hands would be discouraged from seeking redress by litigation, because he knew, or suspected (from his own previous experiences or from those of acquaintances), that a court would decide against him. Another factor which might discourage him was the threat of retaliation from the potential defendant, who might, in extreme cases, do him physical harm, and, in any event, was likely to be in a position to damage his interests. In addition, he was unlikely

¹               Sen. Contr. 10. i (30); Kelly, op. cit. 49-50; Daube, art. cit. 433 ff. Con- troversiae cannot be totally disregarded as evidence for contemporary practices, although they have to be approached with circumspection. They would lose their point if they strayed too far from the possible and credible. A safer his­torical source perhaps is Cicero’s Letters. Provincials were not averse to bringing suits against Romans of various ranks, including senators, as Cicero well knew. See ad fam. 13. 26, espec. § 3; cf. 28a; 55; 69; etc.

to make any showing in front of a court without legal assistance and representation. We should like to know how easy it was for men of low rank to find jurisconsults, or jurisconsults of any quality, who were prepared to take on their cases. These were men of high social rank, who drew their clientele from their peers through informal social contacts, and were conversant chiefly with the legal problems normally faced by the higher orders. Nor should the possibility be overlooked that ignorance of the law might hold back a man of low status from consulting jurisprudents, or, for that matter, from attempting to sue at all. Doubtless there were some patrons who were ready to provide their clients with most of what they lacked, contacts, money, and knowledge. But it may be conjectured that, in general, patrons were most faithful to those of their clients who were well placed to offer worthwhile reciprocal services, and that meant clients whose social and econo­mic station was not far below their own. Finally, if a would-be plaintiff did try to initiate legal proceedings, it was quite possible that the praetor would reject his application for a suit, especially if the particular action requested put a defendant’s status in jeopardy.

To sum up, the impeachment of defendants of high status by plaintiffs of low status through the formulary system was im­peded, first, by the aristocratic bias of both praetor and judge, and second, by the de facto incapacity of the lower orders, through insufficient education, resources, and initiative, to use the legal system. The weaker plaintiff may have gained in some respects when he was able to approach with his claim a magistrate or official who adjudicated extra ordineni. At least summons and execution would then cease to be a problem for him, as they were effected by the state. On the other hand, the state apparatus for punishing breaches of the law was not self-initiating, and there clearly could be no substantial improvement in the condition of the lower orders while they were held back, by their own disabilities, from initiating action at law. Further, there was no assurance that a judge who investigated by cognitio, and who was appointed by the state, would give the weaker plaintiff a fairer hearing than a private judge appointed by the praetor with the consent of both parties.