II
[2arg] How Favorinus discoursed when I consulted hint about the duty of a judge.AT the time when I was first chosen by the praetors to be one of the judges in charge of the suits which are called “private,” 1 I hunted up books written in both languages on the duty of a judge, in order that, being a young man, called from poets' tales and orators' perorations to preside in court, I might from lack of the “living voice,” as they say, gain legal lore from so-called “mute counsellors.” And with regard to postponements and delays and some other legal principles I was advised and helped by the Julian Law itself 2 and by the commentaries of Masurius Sabinus 3 and some other jurists. 4 But in [p. 23] those complicated cases which often come up, and in the perplexity arising from conflicting opinions, such books gave me no aid at all. For although the opinions of judges ought to be formed from the conditions of the cases before them, yet there are certain general principles and precepts by which, before hearing a case, the judge ought to guard and prepare himself against the uncertain event of future difficulties; as, for example, an inexplicable perplexity in coming to an opinion once befell me.
A sum of money was claimed before me, which was said to have been paid and counted out; 5 but the claimant did not show this by documents or witnesses, but relied upon very slender argumentis. It was clear, however, that he was a thoroughly good man, of well-known and tested integrity and of blameless life, and many striking instances of his probity and honesty were presented. On the other hand, the man upon whom the claim was made was shown to be of no substance, of base and evil life, often convicted of lying, and full of treachery and fraud. Yet lie, along with his numerous advocates, noisily protested that the payment of the money ought to be shown in the usual way, by a “receipt for payment,” by a “book of accounts,” by “producing a signature,” by “a sealed deed,” or by the “testimony of witnesses”; and if it could be shown in none of these ways, that he ought surely to be dismissed at once and his accuser found guilty of blackmail. He maintained that the testimony relating to the life and conduct of the two parties was irrelevant; for this was a case of claiming money before a private judge, not a question of morals inquired into by the censors.
[p. 25] Thereupon some friends of mine, whom I had asked to aid me with their advice, experienced men with a reputation gained in acting as advocates and in the business of the forum, who were always inclined to act in haste because of the suits everywhere demanding attention, declared there was no need of sitting longer and that there was no doubt that the defendant ought to be acquitted, since it could not be shown in any of the usual ways that he had received the money. But when I contemplated the men, one abounding in honesty, the other in baseness and of a most shameful and degraded life, I could not by any means be argued into an acquittal. I therefore ordered a postponement and from the bench I proceeded to go to the philosopher Favorinus, with whom I associated a great deal at Rome at that time. I told him the whole story of the suit and of the men, as it had been related to me, begging that with regard both to the matter about which I was then in doubt, as well as to others which I should have to consider in my position as judge, he should make me a man of greater wisdom in such affairs.
Then Favorinus, after commending my scrupulous hesitation and my conscientiousness said: “The question which you are now considering may seem to be of a trifling and insignificant character. But if you wish me to instruct you as to the full duties of a judge, this is by no means a fit place or time; for such a discussion involves many intricate questions and requires long and anxious attention and consideration. For-to touch at once upon a few leading questions for your benefit-the first query relating to the duty of a judge is this. If a judge [p. 27] chance to have knowledge of a matter which is brought to trial before him, and the matter is clearly known and demonstrated to him alone from some external circumstance or event, before it has begun to be argued or brought into court, but nevertheless the same thing is not proved in the course of the trial, ought he to decide in accordance with what he knew beforehand, or according to the evidence in the case? This question also,” said he, "is often raised, whether it is fitting and proper for a judge, after a case has been heard, if there seems to be an opportunity for compromising the dispute, to postpone the duty of a judge for a time and take the part of a common friend and peace-maker, as it were. And I know that this further is a matter of doubt and inquiry, whether a judge, when hearing a suit, ought to mention and ask about the things which it is for the interest of one of the parties to the suit to mention and inquire, even if the party in question neither mentions nor calls for them. For they say that this is in fact to play the part of an advocate, not of a judge.
"Besides these questions, there is disagreement also on this point, whether it is consistent with the Practice and office of a judge by his occasional remarks so to explain and set forth the matter and he case which is being tried, that before the time of his decision, as the result of statements which at he time are made before him in a confused and doubtful form, he gives signs and indications of the motions and feelings by which he is affected on each occasion and at every time. For those judges who give the impression of being keen and quick hink that the matter in dispute cannot be examined [p. 29] and understood, unless the judge by frequent questions and necessary interruptions makes his own opinion clear and grasps that of the litigants. But, on the other hand, those who have a reputation for calmness and dignity maintain that the judge ought not, before giving his decision and while the case is being pleaded by both parties, to indicate his opinion whenever he is influenced by some argument that is brought forward. For they say that the result will be, since one emotion of the mind after another must be excited by the variety of points and argumentis, that such judges will seem to feel and speak differently about the same case and almost at the same time. 6
“But,” said he, "about these and other similar discussions as to the duty of a judge I shall attempt to give you my views later, when we have leisure, and I will repeat the precepts of Aelius Tubero on the subject, which I have read very recently. But so far as concerns the money which you said was claimed before your tribunal, I advise you, by Heaven! to follow the counsel of that shrewdest of men, Marcus Cato; for he, in the speech which he delivered For Lucius Turius against Gnaeus Gellius, 7 said that this custom had been handed down and observed by our forefathers, that if a question at issue between two men could not be proved either by documents or witnesses, then the question should be raised before the judge who was trying the case which of the two was the better man, and if they were either equally good or equally bad, that then the one upon whom the claim was made should be believed and the verdict should be given in his favour. But in this case about which you are in [p. 31] doubt the claimant is a person of the highest character and the one on whom the claim is made is the worst of men, and there are no witnesses to the transaction between the two. So then go and give credit to the claimant and condemn the one on whom the claim is made, since, as you say, the two are not equal and the claimant is the better man.
This was the advice which Favorinus gave me at that time, as became a philosopher. But I thought that I should show more importance and presumption than became my youth and humble merit, if I appeared to sit in judgment on and condemn a man from the characters of the disputants rather than from the evidence in the case; yet I could not make up my mind to acquit the defendant, and accordingly I took oath that the matter was not clear to me and in that way I was relieved from rendering a decision. The words of the speech of Marcus Cato which
Favorinus mentioned are these: “And I have learnt this from the tradition of our ancestors: if anyone claim anything from another, and both are equally either good or bad, provided there are no witnesses to the transaction between the two, the one from whom the claim is made ought rather to be credited. Now, if Gellius had made a wager 8 with Turio on the issue, ' Provided Gellius were not a better man than Turio,' no one, I think, would be so mad as to decide that Gellius is better than Turio; if Gellius is not better than Turio, the one from whom the claim is made ought preferably to be credited.”
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