Balbus, L. Octa'vius
P.), a Roman, contemporary with Cicero.
He was remarkable for his skill in law, and for his attention to the duties of justice, morality, and religion. (Cic. Clu. 38
.) For these reasons he bore a high character as a judex
in public as well as private trials.
There is a passage in Cicero (in Ver.
2.12) in relation to L. Octavius Balbus, which has been misinterpreted and corrupted by commentators and critics ignorant of the Roman forms of pleading. Cicero accuses Verres of having directed an issue of fact in such an improper form, that even L. Octavius, if he had been appointed to try it, would have been obliged to adjudge the defendant in the cause either to give up an estate of his own to the plaintiff, or to pay pecuniary damages.
The perfect acquaintance with Roman law, and the knowledge of his duty which Balbus possessed, would have compelled him to pass an unjust sentence. To understand the compliment, it is necessary to remark, that in the time of Cicero a judex in a private cause was appointed for the occasion merely, and that his functions rather resembled those of a modern English juryman than those of a judge.
It was his duty to try a given question, and according to his finding on that question, to pronounce the sentence of condemnation or acquittal contained in tho formula directed to him by the praetor.
It was not his
duty but the praetor's to determine whether the question was material, and whether the sentence was made to depend upon it in a manner consistent with justice.
In the ordinary form of Roman action for the recovery of a thing, as in the English action of detinue,
the judgment for the plaintiff was not directly that the thing should be restored, but the defendant was condemned, unless
it were restored, to pay damages.
The remainder of the chapter has been equally misinterpreted and corrupted.
It accuses Verres of so shaping the formula of trial, that the judex was obliged to treat a Roman as a Sicilian, or a Sicilian as a Roman.
The death of Octavius Balbus is related by Valerius Maximus (5.7.3) as a memorable example of paternal affection. Proscribed by the triumvirs Augustus, Antony, and Lepidus, B. C. 42, he had already made his escape from his house, when a false report reached his ears that the soldiers were massacring his son. Thereupon he returned to his house, and was consoled, by witnessing his son's safety, for the violent death to which he thus offered himself.
The praenomen of Balbus is doubtful. In Cic. Clu. 38
most of the MSS. have P.; in Cic. in Verr.
2.12 the common reading is L.