A. Apollonius omnibus sal.
As you may remember, I don't like participating in this e-mail list these days. Some of you may be able to sympathize. So I hope you'll understand that I wouldn't be here, and wouldn't trouble you with this message, if I didn't think it fairly important.
I say that at the outset because it's going to be a very long message - I could split it into sections but that would unnecessarily fill the inboxes of those who have no interest in the topic - and because I want to encourage you to read it anyway. I want you to read it whether or not you like M. Hortensia, whether or not you believe she committed the crime for which she was prosecuted, whether or not you care. I want you to read it if you care about standards of fairness and justice in this community.
And one last thing before I start: this message is not about whether M. Hortensia is guilty. As her advocate, it was my duty to argue that she was not. The trial is over, and I am not her advocate any more. She is still my friend, but so is Q. Metellus, who prosecuted her, and so (I hope) is C. Equitius, who was the person whose rights she was prosecuted for infringing. In short, I have no professional or personal stake in this case any more. I'm here as a private individual who happens to have considerably more knowledge of what went on during these legal proceedings than almost all of you, and who is troubled by that knowledge, and who thinks you should be troubled too.
At some time before 17 June this year the consul P. Memmius received a petitio actionis from Q. Metellus. A petitio actionis, literally 'the seeking of a judicial process', is essentially a request for permission to take somebody to court. The receipt of such a request triggers the beginning of the process prescribed by the lex Salicia judiciaria (supplemented by the lex Salicia poenalis). Now, anyone at all familiar with Roman legal procedure will recognize the process set out there as a very close copy of what's called the 'formulary system', which was one of the main ways ancient Roman magistrates administered justice from about 125 BC to the end of the republic and after. In fact the Salician procedure is, on paper, quite possibly Nova Roma's most accurate legislative reproduction of an ancient Roman institution or process. But of course the lex Salicia isn't a complete description of every detail and every contigency of the formulary system, and its English is occasionally imperfect or imprecise, so it still needs to be interpreted by the magistrates who are applying it in a given case.
The need for interpretation evidently arose as soon as Albucius received this petitio. Because, you see, he was a consul, and the lex Salicia doesn't give consules any power to accept or reject or otherwise deal with petitiones actionis. It only mentions praetores. But at that time there were no praetores. What was he to do? Other leges were of no assistance. The lex constitutiva says nothing at all about judicial proceedings, and does not give any magistrate any power to deal with such proceedings. Within the written law of Nova Roma there is nothing that explicitly gives any ordinary magistrate any judicial powers except the leges Saliciae. Now, some people in Nova Roma believe that the lex constitutiva and the written leges made under its authority are the only legitimate source of any magistrate's power, and that if neither the lex constitutiva nor any other lex explictly says that a magistrate can do something then that magistrate can't do that thing. There are others who say that there are other sources of law, principally ancient Roman law and custom, that can properly be used to supplement the written law as long as the written law doesn't explicitly contradict them. We don't need to consider which of those groups is right. We need only observe that the consul must be in the latter group, because after due consideration he decided that he, as consul, did have the power to deal with the petitio, despite the fact that nothing can be found in the written law of Nova Roma that gives him this power. He must, in fact, have drawn this power from ancient Roman law and practice: of course in the ancient republic a consul did have the power to preside over judicial proceedings. Personally, for what it's worth, I agree with him.
So Albucius then had to consider whether to accept or reject the petitio, applying the test in chapter II of the lex Salicia judiciaria. The lex Salicia doesn't say that the accused person needs to be notified at this stage or allowed to say anything about it. But of course we should bear in mind that in the formulary procedure, on which the lex Salicia is very closely based, the accused person would necessarily have been physically present at this stage and would have been able to (and in fact would have been asked to) participate in the discussion. We should also bear in mind that, regardless of Roman precedent, it is probably sensible for a magistrate to involve the accused person at this stage, in case that person is able to point out a good reason why the petitio should not be accepted; otherwise the the good reason will only be pointed out *after* the magistrate has already accepted the petitio, and the magistrate will have revisit the decision to accept it. Nonetheless, I don't say that there was any legal obligation on Albucius to involve Major in things at this stage, and he decided not to. Whether he had any discussions with Metellus about it I don't know. But he accepted the petitio and, in accordance with the lex, told Major that he had done so.
This is, of course, where I became involved, because Major asked me to be her advocate. I quickly got in touch with Albucius and Metellus to say that I was acting as advocate and that the first thing I would be doing was to request a reconsideration of the decision to accept the petitio because it did not, I argued, pass the legal test in ch. II of the lex. At this point two curious and surprising things happened.
The first was that Albucius indicated that he was not prepared to communicate with me directly about the case at this stage. This was, he later explained, because the lex Salicia does not explicitly say that advocates can be used until the trial itself begins, and he did not want to do anything that was not explicitly required by the lex. If you contrast this with his decision that he had the power to deal with the petitio despite having no explicit authority in written law to do so, you will see why I call this curious and surprising.
The second curious and surprising thing was that Albucius told Major that he would not consider any challenge to his acceptance of the petitio. He had not given her, or anyone else as far as I know, a chance to make any comments before he accepted the petitio about whether it passed the legal test for acceptance, and he was not going to give her a chance to make such comments after he had accepted it. There was to be no opportunity for Major to point out what she said were solid legal reasons why the petitio was not acceptable according to the test set out in the lex Salicia. Albucius did not explain his refusal to hear these arguments. He had decided that the petitio passed the test. He must presumably have believed, therefore, either that it was totally impossible that he had missed anything when he made that decision, or else that it didn't matter whether his decision was legally right or wrong. Curious and surprising, I say again; and I'm going to go a little further and suggest that perhaps it's beginning to be slightly worrying.
So the process continued. P. Memmius invited both parties to make representations to him before he drew up the formula. The lex Salicia did not explicitly require him to do this: in fact it gives no indication at all that anything should be done between notifying the parties that the petitio has been accepted and issuing the formula. But neither does the lex say that this should not happen, and it is both eminently sensible and in accordance with the way the Roman formulary procedure worked, and I praise Albucius for doing it. I do note, however, that - as I'm sure you've noticed already - his position regarding exactly how the lex should be interpreted and applied seemed at this point to be oscillating quite dramatically between 'I shall do nothing that the lex does not explicitly require me to do' and 'I shall do what I think appropriate so long as the lex does not forbid it.'
Anyway, I did duly make representations to him on M. Hortensia's behalf. Some of them were about procedure. I argued, for example, that there was a substantial risk that he would be seen as prejudiced against Major, in the sense that he would appear to have already made up his mind about important disputed issues in the case: he had made public statements criticizing Major's decisions to place people on moderation (which was what the case was all about) and had vetoed two of those decisions himself, and moreover there were indications that Metellus would actually be using those vetoes as evidence that the decisions in question were illegal. This raised the possibility that the court would be considering questions that its presiding magistrate had already expressed his opinion about in public, and making its decision based on evidence that included statements and actions by the presiding magistrate; clearly, I said, there was a serious risk that the court would not be seen as independent and unbiased. I also argued that the petitio actionis was too vague for Major to respond to it or to make useful suggestions about what the formula ought to say, and more detail ought to be provided by Metellus before the formula was drawn up. In particular, I proposed that Albucius adopt the procedure that was followed at this point under the formulary system, namely that the prosecutor should write a proposed formula and the accused should then respond to it. I had real hopes that he might do this, since he had already followed the formulary procedure by holding this discussion before writing the formula. At the same time, I also put forward as much of a defence to the substance of the charge as Major was able to provide at that point, given the vagueness of the allegations. This included raising various issues related to the interpretation of the offence as it was defined in the lex Salicia poenalis, ch. 17.1.
To my considerable surprise, the next thing Albucius did was to issue a formula. In this formula, he said he had 'duly taken in account' my arguments, but he did not say what his decisions were about any of the questions they raised, let alone give any reasons for those decisions. He simply did not give any indication of having made any attempt to resolve them. He had evidently decided to go ahead as presiding magistrate in spite of my suggestion that he might appear prejudiced: had he decided that there was no risk, or that there was a risk but it didn't matter, or something else? He had evidently decided not to ask Metellus to give any more detail about his allegations or to propose a draft formula, but he hadn't told Major that he wasn't going to do this, so right up to the issuing of the formula we had no idea whether we were going to get any more details or not and whether we would have to respond to a proposed formula. Does it matter? you may ask. It does matter, for three main reasons. First, any decision by a magistrate can be overruled by that magistrate's colleague, and appeal to another magistrate to do exactly this was a well-established part of ancient Roman judicial process. But in order to ask a magistrate to overrule his colleague's decision, you have to actually know what that decision is. By not telling us what he had decided, Albucius made it impossible for us to do anything to challenge those decisions. Secondly, even if we had not wanted to appeal against any of those decisions, we needed to know what they were in order to know how the trial was going to proceed. For example, I had also put forward various arguments about what would happen if the case were transferred to another presiding magistrate. I'd done this partly in case Albucius accepted my argument that he should not preside over the case himself, and partly because elections for the praetura were coming up and I thought it was quite possible that he was intending to issue the formula, then give Metellus some time to collect evidence (which was normal in ancient Roman trials), and then, after new praetores had been elected, to hand over the case to one of them. His failure to respond to these arguments or tell us what he had decided meant that we had no idea how he intended to deal with this issue: would he transfer it to another magistrate or keep it himself? If he transferred it, would he expect the new magistrate to follow his formula? We didn't know, and therefore we couldn't plan. And the third reason this failure matters, which is perhaps the most important reason, is that without giving on-the-record responses to my arguments he left the questions I'd raised unresolved, as far as anyone could tell (or can tell now). How can we be satisfied that these questions were properly dealt with, especially when one of them concerns doubts about the independence and objectivity of the presiding magistrate himself, if we have no idea what his decisions were and how he justified them? At this point I can tell you that I was very seriously worried about the way these proceedings were being conducted.
At the same time that Albucius said he had 'duly taken in account' the documents I'd sent him, he also said that these 'will be sent to the tribunal', i.e. to the judex, who was to be T. Julius. The person who was going to actually decide the outcome of the case. There are two things about this that are a bit worrying. One is that there was no reason to send the documents to Sabinus. They were documents about the formula, how it should be written, whether it should be written at all, what should be in it. Those things were a matter for Albucius alone to decide, and he had done so. He did not give any indication in advance that they would be given to the judex. There was no reason to give them to the judex because they were not designed to have anything to do with the matters that the judex had to consider. In this particular case I couldn't see anything that would actually cause a problem if the judex saw it, so I didn't make any formal objection; but the fact that Albucius decided, without consultation and without warning, to send the judex documents that weren't intended for his consumption is another indication of a not entirely reassuring attitude to the proceedings. What's more important - and this really is important - is that the judex should on no account have had access to any documents that were not also available to both parties. And it seems that he did. Because Albucius' comment about taking the documents into account and sending them to the judex was not just about the documents I'd sent, but about 'the various documents sent to me, specially by the reus'. Which implies, at least to me, that there were some other documents that were *not* sent by the accused, Major, which must presumably have been sent by the only other person involved, namely Metellus. We had not seen these documents. We had had no opportunity to respond to them. And, for all I know, Metellus would never have seen the documents I sent either, if not for the fact that I had sent him copies myself. Now, it would have been bad enough if Albucius had received documents that we hadn't seen; but what's much worse is that these documents were then sent to the judex, and we still hadn't seen them. Meaning that the judex, who had to make the ultimate decision, would be making that decision based on documents that we hadn't seen and couldn't challenge, disagree with, explain, accept, agree with, or respond to in any way at all. That would not have been allowed in an ancient Roman court, it would not be allowed in the criminal courts where I work in the UK, and there is nothing anywhere in the written law of Nova Roma that suggests it should happen here.
At this point I should say something about the appointment of the judex. I think someone may have pointed out on this e-mail list already that this is in contravention of the lex Salicia poenalis, ch. 10.1, which says that a case like this ought to have been heard by a panel of ten judices. Albucius was aware of this, and discussed it with me (and perhaps with Metellus too: I don't know, because this was another occasion on which things were allowed to be said by one party without the other party knowing what was said), and after I had consulted my client I informed him that she did not object to having T. Julius as a single judex. So I do not complain about this. But once again I note that this appears to be Albucius not only adding to but actually pretty much overriding the written law according to his own view of what was appropriate. I just ask you to remember this if we ever in this story find him justifying any particular procedural decision by saying that he did exactly what was required by the lex and did not feel that he could legitimately do anything different.
Now, let's talk about the formula itself, shall we? I think we should, because it's a remarkable document. It's remarkable in bearing almost no resemblance whatsoever to an ancient Roman formula, to what the lex Salicia judiciaria clearly intends a formula to be, or to anything that could possibly make sense within the system that the leges Saliciae create. But before we look at the formula in detail, we need to take a step back and look at the Salician system as a whole. Because one of the best ways to understand a piece of legislation, and therefore to interpret it when it is unclear, is to look at it as a whole and try to understand what it is supposed to accomplish. I've already said something about its similarity to the ancient Roman formulary system, but let's put that aside for a moment and just look at it in its own terms. Its first substantive provision, ch. I, says, 'Any citizen of Nova Roma shall be able to bring an action against another citizen of Nova Roma.' So it's clear immediately that we're dealing with a system that's fundamentally about disputes between citizens. It isn't about the state against the citizen, or the citizen against the state. It isn't about the court having to deal with a certain situation with the help of citizens. It's about two citizens having a dispute about a particular thing and the court providing a mechanism to settle that dispute. More light is shed on the nature of the system by ch. III: 'If the claim is dismissed by the praetores, the actor shall be able to present his case again to the praetores in the future, waiting for two new praetores to be elected by the Comitia if necessary.' What that tells us is this: if someone brings a complaint to the court and that complaint is badly framed or doesn't fit within the framework of the law or has some other flaw, it is not up to the court to investigate or to try to help that person shape his complaint into something that would be valid and acceptable. The court is not supposed to help the parties or take over parts of their jobs. It's their dispute, and the court's job is simply to arbitrate by choosing one side or the other as the winner. I'll pass over the chapters that deal specifically with the formula because I'll need to come back to them soon, but it's enough for now to say that the formula 'instructs the judices on the decision they must take'. Let's move on to the trial itself, and to ch. XII: 'The actor shall present evidence to back his demands, and then the reus shall present evidence to back his defense.' This will sound very familiar to North Americans, Britons, Australians, New Zealanders, and many others, but we should bear in mind that it isn't the way all trials work in every part of the world. There are some legal systems, called inquisitorial systems, in which the judge will take an active role in investigating the complaint that's been raised by gathering facts, questioning witnesses, and ordering documents to be produced. The alternative, namely an adversarial system, is what is familiar in countries that inherited the British legal system, as well as in many international tribunals and others: the judge is expected to act as a detached arbiter, letting the two sides produce their own evidence and ultimately choosing between them. The lex Salicia quite clearly envisages an adversarial system, not an inquisitorial one. It's up to the two parties to put forward their own evidence and arguments. The court is not there to help either side or to become involved in the case. Nor is anyone else expected to get involved or put forward evidence or arguments. No one else is mentioned in the section that deals with the trial process except the praetor, and the only thing it says about that is that '[t]he praetor shall be the final judge to determine what pieces of evidence are relevant to the case.' Nothing about producing evidence or putting forward arguments or making statements. So it's very clearly an adversarial system. And a final thing that makes this even clearer is what happens at the end of the trial. According to ch. XV, after the parties have finished presenting their evidence and arguments the praetor then 'call[s] for sententia' and the judices vote. They have only two options: to condemn or to absolve the accused. They can't give reasons for their decision; they can't decide that the truth lies somewhere in between the two options they've been presented with. All they can do is award the victory to one side or the other. Another feature of the system that's evident from the lex is that there's a division of labour between the praetor and the judex. The praetor is in charge at the initial stage of receiving the petitio, deciding whether it's acceptable, and, if it is, drawing up a formula. After that the praetor continues to be involved, but only on procedural and technical points: whether evidence is or is not admissible, deciding whether the trial should be public or secret, when to call for the judices to vote. In other words the magistrate is in charge of procedure and of keeping the trial running. What the judex does is to actually hear the evidence and the arguments and make the decision. There's no indication that the judex is supposed to have anything to do with procedure: all the procedural points that are mentioned are explicitly assigned to the praetor. The only thing the judex is explicitly commanded to do is to vote.
Let's now go back to that point about the resemblance to ancient Roman procedure. Because it's possible that many of the things the lex specifically says are consistent with the ancient procedure but it still has a different over-all character. Except, no, it has exactly the same over-all character! The formulary system was adversarial, not inquisitorial. The formulary system didn't involve the magistrate helping either side or taking over any part of their jobs. The formulary system didn't allow anyone to present evidence and arguments except the two parties involved in the dispute. The formulary system had a separation of roles between the magistrate and the judex, in which the magistrate handled procedure and technical points while the judex listened to the evidence and arguments and then made the decision, which could only be one option or the other. The whole design of the system is the same. But still, if only we had some sort of hint that this was what the lex was intended to do. Maybe if we look at the preamble, where it says, 'These procedures are based on the Roman republican procedural model, both because it probably is the model that best suits Nova Roma and because it is the basis for all the procedural systems of modern Western nations. Some concessions to Nova Roma's particular structure have had to be made; but, in spirit, it follows the ancient Roman procedure.' Yeah, that would do. In fact I'd say that's pretty much the legislative equivalent of hitting a magistrate round the face with a kipper and saying 'Interpret this lex in accordance with the spirit of the ancient procedures it's explicitly based on!' Wouldn't you?
It's important to get all that clear in our minds before we look at what the lex says the formula should be like, because this bit of the lex is, if you look at it on its own, not all that clear. I'm going to quote it in full:
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V. Once a claim has been accepted by a praetor, that same praetor shall prepare a formula to present to the iudices. The formula shall consist of a logical statement that instructs the iudices on the decision they must take. The formula shall be structured into four parts: institutio iudicis, intentio, demonstratio and condemnatio. An explanation of each part follows:
A. INSTITVTIO IVDICIS: This clause appoints a certain iudex to judge the case (see below).
B. INTENTIO: This part expresses the claim of the actor; i.e., it shall express what the actor seeks by petitioning the praetor. There are two kinds of intentio: intentio certa, when the facts that lead to the actor's claim are so obvious that they do not need to be proved, and intentio incerta, when the actor must prove the facts that justify his claim.
Example: Intentio Certa: "According to the contract signed by Titius..." Intentio Incerta: "If it is proved that Ticius owes Gaius 1,000 sestertii, Gaius shall pay Ticius that same amount".
C. DEMONSTRATIO: This is the clause that further defines an intentio incerta.
D. CONDEMNATIO: This is the clause that allows the iudices to condemn or absolve.
Example: a formula could be something like this: "Let Sulpicius be the iudex. If it is proved that Ticius owes Gaius 1,000 sestertii, you, iudex, shall condemn Ticius to pay 1,000 sestertii to Gaius; else, you shall acquit Ticius."
The clauses would be: Institutio Iudicis: "Let Sulpicius be the iudex." Demonstratio: "If it is proved that ..." Intentio: "... Ticius owes Gaius 1,000 sestertii ..." Condemnatio: "... you, iudex, shall condemn Ticius to pay 1,000 sestertii to Gaius; otherwise, you shall acquit Ticius."
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There it is. Now, you can get bogged down in some of these phrases. What does 'express' mean in B? What does 'further define' mean in C? And so on. But the lex also gives you a handy example, which makes it pretty clear: 'Let Sulpicius be the judex. If it is proved that Ticius owes Gaius HS 1,000, you, judex, shall condemn Ticius to pay HS 1,000 to Gaius; otherwise, you shall acquit Gaius.' And it tells you which bit is which. 'Let Sulpicius be the judex'. That's the institutio judicis, the clause that 'appoints a certain judex to judge the case'. Okay, so you choose a judex and then you say 'Let [that person] be judex', that's pretty simple. Next you have a demonstratio that 'further defines' the next bit. How does it do that? Well, apparently it does that by saying 'If it is proved that...' I admit I'm not entirely sure how that counts as 'further defining', but I suspect it probably means that it further limits (which is what 'defines' literally means) the grammatical and procedural role of the next clause. So without the 'If' clause you'd just have a formula saying 'Ticius owes Gaius HS 1,000'. But then you add the demonstratio and it says 'If it is proved that Ticius owes Gaius...' So it makes it clear (demonstrat) that the following clause is what the prosecutor has to prove. The next bit, the intentio, 'express the claim of the actor' by basically summarizing the prosecutor's allegations. The prosecutor says 'Ticius owes me HS 1,000!'. The intentio says 'Ticius owes Gaius HS 1,000'. Very straightforward. And finally the condemnatio, which 'allows the judices to condemn or absolve'. So it says that the judex can condemn Ticius, and says what to condemn him to do (i.e. what the penalty is), or acquit him. And combined with the demonstratio (the 'if' clause) it tells the judex in what circumstances to condemn and in what circumstances to acquit. It all makes a fair bit of sense when you use the helpful example. And you can cross-check this with the wider overview of the system that we've just looked at to make sure it fits with that. Which it does! It's an adversarial system, hence the instruction to the judex is to wait and see whether the prosecutor proves his allegation or not, and then to give the appropriate verdict by choosing one or the other option (he has proved it, condemno, or he hasn't proved it, absolvo). It's got that division of labour, because it contains the judex' instructions for the whole trial: just sit there and work out whether Gaius has proved it or not. It doesn't say anything about making procedural decisions or managing the progress of the case. Just one simple but important task. And, just in case we aren't completely happy with that interpretation, let's cross-check it again by considering the ancient formulary procedure that the lex itself explicitly tells us is the spirit of the system it creates. What do we find? We find that the example given is pretty much a direct translation of an actual Roman formula from an actual Roman legal text-book, and that it's analyzed into exactly the same constituent parts as the Romans analyzed their formulae into. Success! Now we understand what a formula should do: it should name the judex, take the allegation of the prosecutor, put it into the form of a conditional sentence, and tell the judex to condemn the accused if the allegation is proved and to acquit if it isn't. So in the the case of M. Hortensia I was expecting a formula something like this: 'Let [name] be judex. If it is proved that M. Hortensia [did something that amounts to abusus potestatis], you, judex, shall condemn M. Hortensia to [some specific penalty]; otherwise, you shall acquit her.' I didn't know quite what was going to go into those brackets because, as I've said, the allegation in the petitio actionis was pretty vague, but I expected that the necessary detail would be given so that the judex would know what he was actually supposed to be doing.
Shall we look at the actual formula? Let's do that. Here it is. Please read it. All of it:
http://groups.yahoo.com/group/Novaromatribunalis/message/314
Finished? Well, that wasn't quite what we were expecting, was it? In fact it looks nothing like a Roman formula, nothing like the sort of formula the lex appears to have in mind, and nothing like the example that is specifically set out in the lex. Its article 2 merely states that 'the present case is... an "intentio incerta"', which shows an obvious failure to understand the lex. The lex says very clearly that 'intentio' is the name of part of the formula and an 'intentio incerta' is a type of intentio to be used in certain types of case: an intentio incerta is not a type of case, it is a type of intentio. The lex does not require the formula to specify whether the intentio is certa or incerta, and the example provided in the lex doesn't do this. The section of the formula titled 'demonstratio' has nothing whatsoever in common with the demonstratio of the example in the lex, and in fact nowhere in the entire formula is there even a trace of an 'if' clause. Nor does the formula tell the judex in what circumstances to absolve or condemn: it simply advises him to do one and not to do the other. And in fact this brings me to what's even worse about this formula: it isn't just utterly inadequate, it's completely incompatible with the obvious interpretation of the lex and of the principles of the system the lex is there to create. It clearly has no truck at all with the idea of the presiding magistrate being an impartial figure who doesn't intervene to help either side or to contribute his own arguments or evidence. It 'interprets' Q. Metellus' petitio (thus implicitly supporting my earlier point that the petitio in itself was not sufficiently clear), and then goes into extensive discussion of whether the legal reasoning in the petitio is correct and whether Metellus has produced any evidence to support it. There is not the slightest indication in the lex that a formula should do this, and there is every indication that it should not, especially if we interpret it in the way I've suggested above as the obvious, sensible, coherent, and Roman way to read it. It was unfair to Metellus to criticize him at that stage for failing to produce evidence: the lex doesn't say that the prosecutor has to produce any evidence until the trial begins, the sensible interpretation of the lex doesn't require it, the Roman formulary system did not require it, and as far as I know Metellus had never been told by Albucius that he should produce any. Nor was it remotely appropriate to discuss the legal reasoning of the petitio in the formula. The lex does not provide any room at all for such discussions in its description of the formula or in its example. The place for analysis of the legal basis of the petitio is clearly chapter II of the lex judiciaria, where the presiding magistrate has to decide whether the petitio is 'incongruent', i.e. 'not supported by law, precedent or common sense'. It could hardly be clearer in the lex: if a petitio says that someone should be punished for X and the presiding magistrate's intepretation of the law is that X is not illegal, then that's an incongruent claim and the magistrate should dismiss it. What the magistrate should not do is accept the petitio and then write a formula in which he says that in his opinion the claim is legally flawed (i.e. incongruent)! And then, finally, the formula fails to tell the judex what his task is at all, which is the whole point of the formula. It does not give the judex two clear options to choose between, which is what the judex needs because the lex quite clearly gives him only two possible options when returning his sententia. It does not specify any penalty to be imposed if the judex condemns the accused, which is what the condemnatio is for and which is also plainly required elsewhere in the lex, which refers in ch. XV and XVII to the inclusion of a penalty in the formula. In short, the formula that was issued in this case does not do *any* of the things the lex required it to do except naming the judex, and it *does* do several things that are not only not required by the lex but are clearly incompatible with it and that betray at best a complete misunderstanding of the lex, including things that were unfair in themselves such as criticizing the prosecutor for failing to do something he wasn't required or asked to do, giving an opinion about the prosecutor's legal reasoning, and, worst of all, utterly compromising the impartiality of both the magistrate and the judex by telling the judex what decision he should make about the case.
Well, when I saw that I was pretty perplexed, I can tell you. But even then I hadn't fully understood the extent of Albucius' misinterpretation of the Salician system. I did my best to make sense of the formula within the context of the lex, and what I came up with was this: for some reason he must have decided that, rather than dismissing the petitio, the appropriate thing to do was to accept the petitio but then order the judex to automatically absolve M. Hortensia on the grounds that the petitio was incongruent. It was a bizarre way of doing things, but it was at least a way of arriving at the same result as what ought to have happened earlier, namely dismissing the petitio. It also had analogies in modern legal systems: in many 'common law' countries, for example, if a jury has been empanelled to hear a case and then it becomes clear to the judge that the prosecution has no merit at all the judge will often order the jury to find the accused not guilty without further ado. I thought Albucius was doing something like that, because, well, that was the only way I could make any sense at all of what he was doing.
The next step, then, was obviously for T. Julius the judex to do what the presiding magistrate had instructed him to do. But this didn't happen. In fact, what happened - imagine my bafflement, folks! - was that the trial went ahead. Yes, that's right: the presiding magistrate had issued a formula telling the judex that the prosecution had no merit and was legally flawed, and then the trial carried on as if nothing had happened. What? I mean, what? At this stage I could no longer make any sense at all of what was going on, and I wrote to P. Memmius and to T. Julius to express my concerns. Their responses showed several things. First, they showed that neither of them was observing the clear division of roles in the lex judiciaria between the judex (whose duty is to choose between the prosecutor's case and the defence case) and the presiding magistrate (whose duty is to ensure proper procedures are followed and to make decisions about the admissibility or evidence, the management of the schedule, &c.). It was clear, on the contrary, that the judex was making decisions about procedure and was in charge of the schedule, and that the presiding magistrate accepted no responsibility for ensuring that the judex applied the correct interpretation of the law (in fact Albucius explicitly said that he could not impose his interpretation of the law on Sabinus, although this is precisely what he was supposed to do). In fact Sabinus, on top of making decisions about procedure, even said that he had the power to decide what penalty to impose, and could change his mind about this at any time during the trial, showing a total misunderstanding of the leges Saliciae, which make it quite clear that the penalty is to be determined by the presiding magistrate in the formula and not by the judex, and that the penalty stated in the formula is to be imposed automatically when the accused person is condemned, with no possibility of changing it during the trial. Meanwhile Albucius said that he could not disregard or radically reinterpret the leges of Nova Roma in order to follow Roman custom or his own idea of what was best, even though, as I've mentioned earlier, this is exactly what he had done at least twice before in the court of these judicial proceedings. He also said that the ancient Roman formulary system did not work like the system created by the leges Saliciae, which shows, I suggest, that he had completely misunderstood the leges Saliciae since they patently intend to create, and do create, a system that works very very like the formulary system. What's more, Albucius himself said during this discussion that he found the lex judiciaria very difficult to understand, and expressed the thought that perhaps part of the problem was his understanding of English. And yet he was not prepared to enter into any discussion with me about what the lex meant or how it ought to be interpreted, and he rejected the possibility of using the ancient Roman system, which the preamble of the lex specifically cites, as a guide to its interpretation. In fact he even rejected the guidance that was included within the lex itself: when I pointed out that the formula didn't match the example provided in ch. V of the lex, or the explanation of how the example related to the earlier provisions about the contents of the formula, he said that he regarded these things as a non-mandatory explanation designed to help the magistrate, and therefore he didn't feel obliged to follow them. Yes, you read that correctly: he said he had a lot of trouble understanding the lex, and he said that the example in the lex was there to help him understand it, and he said that this was why he thought it was okay to do something completely different from the example. I know, my mind boggled too. And perhaps even more mind-boggling was the moment when he basically agreed with me that when he interpreted the lex judiciaria in the way he had done he discovered that the lex required him to do things that made very little sense and were often entirely pointless, whereas my interpretation was coherent and made sense. This did not, apparently, make him consider that there was any chance of his interpretation being wrong and mine being right.
Well, after a few e-mails that discussion was duly closed down by both P. Memmius and T. Julius, who made it clear that they did not want to hear any more about it. So, on we went with the trial. There was still no clear definition of what Q. Metellus had to prove before Sabinus could condemn M. Hortensia. There was still no specified penalty to be imposed if he did. We still had a judex who thought he was in charge of questions of procedure, schedule, and law, and we still had a presiding magistrate who let the judex carry on in this way. In fact I know, because Albucius told me, that they had had some private e-mail correspondence about the case before the trial began, and it may well be that they carried on doing so. You remember that earlier I complained about the judex being given documents that had not been seen by both parties. Private (i.e. secret) correspondence between the judex and the presiding magistrate is even more worrying, because it means the judex has seen things that *neither* party has seen. I have no idea what they discussed, except that I know they talked about the schedule. I suspect they also talked about the role of the judex, because otherwise it's unlikely that both of them would have independently come up with the same completely misconceived interpretation of the lex. They may have talked about any number of things, including the merits of the case. We already know that Albucius saw nothing wrong with giving Sabinus advice about what decision to make, because that is precisely what he did in the formula, and that is precisely what he would later do again in his call for a sententia. Perhaps he did it privately as well. In any case, any correspondence between the judex and the presiding magistrate should be shown to the parties, otherwise they can have no idea what is being said and no opportunity to respond to any points that might affect the judex' opinion about the case. This is very basic stuff, people. Any lawyer in any civilized country would be appalled at what was going on in this court.
So, anyway, it was time for opening speeches, and Metellus made his speech. And now, at last, came the clarifications that I had been consistently asking Albucius to require and that Albucius had not required: Metellus voluntarily gave them, because he saw that it wouldn't be a fair trial without them. He abandoned the original vague scope of the petitio actionis and now said that there was only one act that he said was an abusus potestatis, namely the second edictum issued by Major on 6 June. It was an abusus potestatis, he argued, because she restricted C. Equitius' freedom to participate in a public forum and because - and this is crucial - she knew that it was illegal to do so. He asked Sabinus to condemn her only if he, Metellus, could prove beyond reasonable doubt not only that she restricted Cato's freedom but also that she knew it was illegal to do so. In my opening argument I accepted and adopted this approach, and agreed that Sabinus should not condemn Major unless Metellus proved beyond reasonable doubt that she knew or believed she was doing something illegal. And I also said this: 'In view of the agreement between the two parties about this element - the necessity of knowledge, i.e. intention - I do not suppose it is necessary to spend any more time on the point. But if, despite our agreement, you feel inclined to doubt that this element is a necessary and fundamental part of the case that must be proven to you, then I ask you to say so now in order that I may try to persuade you of it.' Sabinus did not say anything about it. But just to make absolutely sure, I contacted him privately (sending a copy also to Albucius and to Metellus, because, as I've mentioned, it is not appropriate for one party to say things to the judex without the other party knowing) before I closed my case, and I asked, 'May I assume that you do not need to be persuaded any further on this point, or would you like to hear more argument about it?' He replied (again with copies to Metellus and Albucius) that there was no need for me to say anything more about it. So right up until the end of the trial, after Metellus and I had both had our last opportunity to address any remaining points of law or fact, both I and Metellus believed that if Sabinus was not persuaded beyond reasonable doubt that Major believed she was doing something illegal then he would absolve her, and we both believed that Sabinus agreed.
Obviously this meant that Major's state of mind was an important issue in the case: did she do something she believed to be illegal? Without proving that, Metellus could not win the case. So I called various witnesses to give evidence about this. I asked them whether they thought she would do anything she believed was illegal. They all said they thought it was very unlikely. Naturally enough, Metellus wanted to cross-examine them. But Sabinus prevented him, saying, 'I'm sorry to say that the
questions you presented here have not any connection with the case... Therefore these questions are not allowed.' There are two things to notice here. The first is that Sabinus was making a decision about the admissibility of evidence. The lex Salicia gives the judex no power to make such a decision. On the contrary, every decision of this kind that is specifically mentioned in the lex is said to be within the power of the praetor, not of the judex. This is also in agreement with the Roman formulary system. Moreover, ch. XIII says 'The praetor shall be the final judge to determine what pieces of evidence are relevant to the case.' So decisions about the relevance of evidence are not only implicitly but explicitly the preserve of the presiding magistrate, not the judex. Sabinus exercised a power that was not his, and Albucius allowed him to do so. The second point is that Sabinus was, at least arguably, wrong. The questions Metellus asked were designed to rebut Major's case that she did not do, and would not have done, anything she thought was illegal - which, as I said above, was a crucial part of what Metellus had to disprove in order to win. He wanted to do this by undermining the credibility of one of my witnesses and by directly challenging the statement of another who said that he had never heard any suggestion that Major was contemplating acting illegally. The questions, in my opinion, were entirely relevant to the case, and Metellus ought to have been allowed to ask them. It was unfair to prevent him, and it was also contrary to the lex Salicia for this decision to be made by the judex.
And the trial went on. We made our closing remarks. Then came the part of the process described by the lex judiciaria, ch. XIV: 'Once both parties have presented their evidence, each party shall have the opportunity to make one final statement in front of the judices, with the actor speaking in the first place. Then the praetor shall call for a sententia (sentence) from the judices, according to paragraph XV, reminding the judices that, in case of doubt, they must *not* condemn the reus.' I'm just going to repeat that last sentence: 'Then the praetor shall call for a sententia (sentence) from the judices, according to paragraph XV, reminding the judices that, in case of doubt, they must *not* condemn the reus'. What, then, does the presiding magistrate have to do at this stage? He has to call for a sententia, i.e. ask the judex to deliver his verdict, and he had to remind the judex not to condemn the accused if he has any doubt about her guilt. Those are the two things, and the only two things, that the lex calls for the presiding magistrate to do at this stage.
Let's see what Albucius did:
http://groups.yahoo.com/group/Novaromatribunalis/message/360
Did you read it? All of it. Please, do read the whole thing. This is important. We're near the end of my message, and this is possibly the most important part of the whole thing.
Okay, now what did Albucius do here? What he did was this: he took over Metellus' job of prosecuting the case, and he also took over Sabinus' job of settling the case. Metellus, as I mentioned earlier, began the trial by clarifying exactly what his accusation was: Major's second edictum of 6 June was illegal, he said, and she knew it was illegal. That's what he set out to prove, and that's the basis on which he wanted Sabinus to condemn her, not on any other basis. Issuing that edictum is the only thing he said amounted to a criminal offence, nothing else. If he didn't prove that beyond reasonable doubt, then she should be absolved. That's what he said, and that's what I said, and that's what Sabinus indicated he accepted. So that's what he argued for, and that's what I argued against. That's what he produced evidence to support, and that's what I produced evidence to refute. Like good lawyers, we did not waste the court's time with anything that was not directly relevant to that central question: was the second edictum of 6 June illegal, and did Major believe it was illegal? That's what the whole trial was about, from start to finish. But the presiding magistrate obviously wasn't happy with the way Metellus was doing his job, because after all the evidence had been produced and all the arguments made, he decided to mount a whole different prosecution of his own. He talks about 'a last argument of the actor, according which the violation, by Hortensia, of the laws of Nova Roma would result first of the fact that her moderation decisions have been vetoed, and second that she would have refused to obey these vetos'. He 'considers' it, and he decides that 'it has been demonstrated, from the pieces of evidence brought by both parties, that, on this only point, former praetor Hortensia Maior "used (her) magisterial powers to act against the lawful rights of a person", here G. Equitius Cato, by re-issuing twice on June 6, and without legal base a measure of moderation which should have been considered by her as having ended on June 1.' Let's be clear what's happening here. This is not 'a last argument of the actor'. Metellus *never* argued that Major had committed any crime whatsoever by means of refusing to obey vetoes. He made it absolutely clear throughout the trial that the only relevance of the vetoes was as evidence that she must have known she was doing something illegal. According to his case, her refusal to obey vetoes was evidence of a crime, but it was not a crime itself. The argument that 'the violation, by Hortensia, of the laws of Nova Roma would result... of the fact... that she would have refused to obey these vetoes' was *invented by the presiding magistrate of the this trial* and was never even hinted at in this court until after both the prosecutor and the advocate for the defence had closed their cases.
And there's a second point. At the risk of being tedious, let me remind you once again that Metellus consistently throughout the trial said that there was only one criminal edictum and it was the second edictum of 6 June. Only one. I specifically asked him about this (message 323 in the court archive) and he confirmed it (message 328). So all our arguments on both sides were concerned with whether that one edictum was criminal or not. But what does the presiding magistrate say? 'Hortensia Maior "used (her) magisterial powers to act against the lawful rights of a person"... by re-issuing twice on June 6... a measure of moderation...' *By re-issuing twice*. What he's saying here is that the crime was issuing *both* the edicta of 6 June. That is another thing that Metellus *never* said. This is not Albucius agreeing with Metellus' argument; this is Albucius making up a whole new argument of his own. And look, here's a third example of the same thing: 'its cause cannot be find but in the will that Hortensia had at this time that G. Equitius Cato be sanctioned, whatever the legality of such sanctions'. *Whatever the legality of such sanctions*. In other words, he is saying that Major is guilty because she did not care whether her actions were legal or not. But once again this has nothing to do with what Metellus said. He said that she was guilty because she knew, she *actually knew*, that she was doing something illegal. Once again, I specifically asked him (message 323 again) to clarify this point: did he say that she could be found guilty on the basis that she didn't care whether her actions were illegal or not, or did he say she could only be guilty if she actually knew they were illegal; again, he confirmed that his argument was based solely on the allegation that she actually knew they were illegal (message 328). So once again all our arguments and evidence on both sides were concerned with that point. But then Albucius says she is guilty because she decided to sanction Cato 'whatever the legality of the sanctions'. Because she acted without caring whether she was acting illegally or not. The prosecutor of the case - the person whose very job it is to prove the accused guilty - said that this would not be enough to make her guilty. But the presiding magistrate, whose job is to be impartial, overruled the prosecutor and put forward his own argument that she was guilty even if she didn't think she was acting illegally.
Folks, there is so much wrong with this I don't even know where to start, but let's stick with the point I've just alluded to. The presiding magistrate in a trial should not be putting forward prosecution arguments at any stage. He is not the prosecutor. There's already somebody doing that job, and, as it happens in this case, doing it well. It is not the presiding magistrate's job. In fact if the presiding magistrate is doing that then not only is he doing something that isn't his job, he's doing the exact opposite of his job. He's supposed to be independent, impartial, sitting above the arguments and just making sure the trial runs smoothly. That's how it was in Roman times, and that's how it's clearly meant to be under the leges Saliciae even if you read them in complete isolation from Roman law, which they specifically tell you not to do. If the presiding magistrate doesn't occupy that role and only that role, the whole system makes absolutely no sense. It's like having a tennis match in which the umpire suddenly climbs down from his chair, picks up a racket, and goes and joins one of the players. Not only have you then got two players unfairly competing against one, you've also got *no umpire*. And in fact it's worse than that, because Albucius didn't just become a second prosecutor here. He became a super-prosecutor. Because he's started out as the boss of the whole show. He gave Sabinus his instructions. He talked him through the schedule of the trial, not to mention anything else he may have said to him in private e-mails that we don't know about. He is a magistrate with the highest imperium you can get in peace-time, and this court was his court that he created and that he was running. That's a huge amount of power and influence. And then he deployed it on behalf of one party against the other. This is not just some random guy turning up at court and having a go at prosecuting after the first prosecutor has finished: this is Sabinus' boss, who is also the highest magistrate in the state, telling Sabinus what the right answer is. If you think that's fair, I know some delightful military dictatorships where you'd absolutely love being put on trial.
But let's forget for a minute that the presiding magistrate should not have been doing this at all. *When* did he do it? He did it after both parties had closed their cases and there could be no more argument or evidence from either side. We had spent the whole trial completely focused on proving or disproving the case as Metellus had argued it. For every argument that Metellus put forward I had an opportunity to respond to it. For every piece of evidence he produced I had an opportunity to criticize it. And for every argument and piece of evidence I deployed Metellus had an opportunity to deal with it (except for Sabinus' improper rejection of his cross-examination, which I've already mentioned). And *then* Albucius reaches into his top hat and pulls out a whole new prosecution case, and I had absolutely no chance whatsoever to say anything about it. I couldn't point out its logical flaws, I couldn't say anything about how it misapplied and misinterpreted the law, I couldn't produce any evidence to rebut its factual allegations. It was pretty much the equivalent of putting Major on trial a second time, with a whole new prosecution case, and not letting her say a single word in her own defence. Have another look at that 'call for a sententia'. See how it carefully examines and rejects my arguments against the case it's putting forward? No, you don't, because there were no arguments against that case, because I wasn't allowed to make any, because I didn't have even the tiniest hint that that case was going to be happening until it was too late.
And let's not even get into whether Albucius' arguments were right or not. We really haven't got time for that. Let's not even ask ourselves whether it's at all dodgy that Albucius decided Major was guilty because she disobeyed vetoes, and whose vetoes were they exactly? Oh, that's right, some of them were Albucius' vetoes! So basically he decided that she was guilty because she did something he told her not to do. That doesn't in any way undermine the impartiality and independence of this verdict, does it? Oh, right, it does. Well, if only somebody had pointed out right at the beginning of these proceedings that maybe it was a bad idea to have the trial being presided over by a magistrate who had issued vetoes that were likely to be used as evidence in the case! Oh, right, somebody did. But never mind that. Let's move on to what happened next.
What happened next was Sabinus giving a verdict after hearing two different prosecution cases: one by Metellus, one by Albucius. He condemned Major, so he must have agreed with one of them but which one? What has Major actually been found guilty of doing? This is important, people, because part of the purpose of our criminal law is to deter people from doing things we don't want them to do. And in order to be deterred, people need to know what it actually is that they're being deterred from doing. Albucius said Major was guilty because she disobeyed (his) vetoes, but Metellus never suggested that. So was she condemned because she disobeyed vetoes or not? Does this verdict mean that disobeying a veto is a criminal offence or doesn't it? We have no idea. Metellus said that the crime was issuing the second edictum of 6 June, but Albucius said that it was only a crime if you look at the two edicta together. These are not only two different bases of guilt, they're actually contradictory. Think about it: if both the edicta together make one crime, then each edictum separately is not a crime (otherwise they'd be two crimes, not one). So Metellus is saying that the second edictum on its own was a crime, and Albucius is saying that the second edictum on its own was *not* a crime. Which version did Sabinus find her guilty of? We don't know. What is a future magistrate supposed to do with this information? What exactly is a future magistrate supposed to be deterred from doing? We have no idea! This verdict has no deterrent effect whatsoever because we simply don't know what Major has actually been condemned for. By setting himself up as a second prosecutor Albucius has not only achieved the unfair and wrongful conviction of M. Hortensia, he has also single-handedly defeated a major part of the social usefulness of the trial that he was in charge of. And not only has this verdict, because of the way it came about, been unfair to Major and unhelpful to the entire community, it's also done no favours at all for the prosecutor. I want to say for the record that in my opinion Metellus conducted himself unimpeachably throughout the trial. He was cooperative and polite at every stage. When Sabinus set an unrealistic schedule that would have been completely physically impossible for me to meet, Metellus could have sat back and watched me miss the deadlines and lose the case as a result, but he didn't: he supported my objections and asked for a more realistic schedule. He clarified his specific allegations and explicitly identified his interpretation of the law, even when the presiding magistrate had consistently failed to require him to do so, because he knew that justice demanded it. Metellus wanted a fair fight, and he wanted to win it fairly. He didn't get one. He has been cheated by this unfair judicial process just as M. Hortensia has, and just as you have.
Wait, I feel like I've forgotten something. Oh yes, the call for a sententia. Remember a little while ago I went over what the lex Salicia says has to be in the call for a sententia, and then I mentioned the fact that Albucius issued one that contained a whole load of stuff that shouldn't have been in it, and that's what I've been talking about for the last six paragraphs? Well, before we finish, let's just check whether the call for a sententia at least did manage to include all the things the lex required. It shouldn't be hard, because, remember, there were only two of them. It had to 'call for a sententia' and it had to 'remind... the judices that, in case of doubt, they must *not* condemn the reus'. Wait, what was that second one? Hmm, I don't remember seeing anything like that in Albucius' call for a sententia. Let's just check... nope, nothing. Nothing at all. So, folks, if you've stuck with me this far and you've been saying to yourself, 'This is all very well, all this stuff about the spirit of the laws and the principles of fairness and so on, but I don't see that anything happened in this trial that was an indisputable breach of the words of the leges'... Well, there you have it. If it isn't enough for you that this entire judicial process from start to finish was riddled with unfairness of umpteen different kinds, I invite you to put this in your pipe and smoke it: one thing that the lex Salicia judiciaria *explicitly* and *unambiguously* requires the presiding magistrate to do, which is to remind the judex of the *crucial and fundamental rule* that an accused person is innocent until provedn guilty beyond reasonable doubt, and the presiding magistrate in this case *did not do it*. That alone would be enough, in any court in any civilized country in the world, to nullify the result of this trial.
People, this trial was an utter disgrace. The sheer length of this message shows how totally riddled with unfair procedural decisions it was. Its outcome cannot be regarded as reliable. In fact the problems I've described here cast doubt not only on the result of this trial but on the existence of justice in Nova Roma. You should be ashamed of this trial. You should be ashamed that this happened in your community. And you should put it right. I see that people are threatening more trials against other people. I tell you now that if those trials are like this one there is absolutely no point having them. You will not get justice. I don't care what other arguments or fights or elections or vetoes or legislation or whatever is going on in Nova Roma right now, I'm here to tell you that the top priority of every magistrate with the power to do so should be to convene the comitia to hear an appeal against this verdict, and to make sure that the appeal is conducted properly, under an independent presiding magistrate, according to basic principles of fair procedure and informed by a sound knowledge of ancient Roman judicial practice. And the top priority of every citizen should be to demand that such an appeal be heard. Cicero said that a republic is a group of people united by a common good and an agreement about justice. Without justice you have no republic, and until there is an appeal in this case then there is no justice in this community.
Thank you for listening.
