CHAPTER V The historical record

Discussions of the place of advocacy in the Roman legal order, which have been common enough, though not often very fully developed, reflect a communis opinio and retail a fable convenue.

In the beginning, goes that opinio (and with this much there is no cause to quarrel), Roman advocacy arose out of the patron-client relationship. In the early to early-middle Republic advocates, being patroni, were aristocrats. Jurisprudence also, from the time when it, too, began, was an aristocratic activity. The two roles were, in fact, to a large extent undertaken by the same group of people: Cato the Elder and his son, Mucius Scaevola, Rutilius Rufus, Aquilius Gallus, Ser. Sulpicius, are names with which we are regaled, and we are reminded that the task of the jurisprudent was held to be agere and cauere as well as respondere.^[537]

Greek rhetorical theory arrived more or less in Cato’s time, and was the bandwagon on to which all the chatterers - the advocates, of course - jumped. (Here we should note the unlikelihood that the Romans were wholly innocent of persuasion until the arrival of rhetorical theory:^[538] is it really to be supposed that Africanus, for example, so artful at projecting his image, did so in the wooden manner of the annales?^[539] And this is the place to note also the rather different concepts the Greeks and Romans had about the ethics of pleading.

The heyday, then, of forensic oratory was marked by the separation of advocacy and jurisprudence.⁹ Here we are treated, in the standard books, to the quite correct statement that Cicero was not a jurisprudent and to stress on the â€?politicisation’ of advocacy. It is, however, reluctantly allowed - because we are told so in the Dialogus,^ a work that is not permitted to be gainsaid because it purports to be by Tacitus - that though eloquentia was alumna licentiae â€?the nurseling of indiscipline’ the age in question was, after all, that of the libera res publica·, so there was worse to come!

For â€?with the Principate’ (and this vague formulation has to be used because the many writers who tell this tale are either equally vague or imply substantially different dates one from another) we reach a period of â€?miseres’ and â€?hontes’.¹¹ First, there was the decay of free institutions: political oratory, always the main field for rhetoric, lost its forum, leaving only forensic and, marginally, epideictic oratory.

⁹ See esp. pp. 40-1, above, and on the view of 61 David, 437, n. 93 see Ch. II n. 42, above.

¹⁰ Dial. 40.

¹¹ 273 Verdalle, 27. He was thinking of the delatores.

¹² Dial. 36-40.

¹³ Dial. 19; and see pp. 27 and 135, above.

¹⁴ 223 Pugliese claims that the judges were better informed.

¹⁵ 80 Feenstra, 642.

proportion of the new principal judicial officers, praefecti praetorio, praefecti urbis and so on, are attested as jurists.^[544] Aulus Gellius, when a youngster not long out of the �angulis secretisque librorum ac magistrorum’ �nooks and crannies of books and teachers’, found himself picked to be unus iudex in a suit of private law.^[545] He evidently had been studying law (though the phrase �stationes ius publice docentium aut respondentium’ �places where the public teachers of law and givers of legal opinions hang out’ shows that there were not formal law schools, at Rome, anyhow).

Eventually - and sometimes what is clearly meant or stated is �in the Late Empire’, sometimes what is implied is earlier, in, say, the Severan age - just as the judge is jurisprudentially trained so is the advocate. The divergent streams merge again, and truth and morality return to the courts. (There is, actually, an odd internal contradiction in Clarke’s account:^[547] �Rhetoric is now only to a small extent a training for the courts’, he says on one page, but two pages later �The rhetorical school led as in the past to the bar and the bar to posts in the administration.’ The second of those propositions is correct, right down to the time of Libanius in the high fourth century:^[548] this is where vagueness about �with the Principate’ so gravely distorts things.) It is, at least, undeniable that in the Late Empire there was a corps of law-trained advocates available to each jurisdictional magistrate.^[549]

The foregoing account of the historical role of advocacy in the Roman legal order, though perhaps a bit rhetorical, is not, I think, unfair to the many sources in which it, or portions of it, can be found.²² It is based especially on two theoretical presuppositions: that rhetoric, the vehicle of advocacy, is at worst a deleterious and at best an irrelevant element in the legal order, and that law always, as it should, moves teleologically in the direction of an â€?autonomous science of law’. Some reasons for questioning those theoretical foundations have been given in the previous chapters: now we come to history, and it takes little to perceive how paradoxical, historically speaking, the whole account is. It has been, for example, not uncommon for Roman lawyers to be the first to opine that, with all respect to the organisatory work of Julian and Ulpian and Papinian and the pedagogical work of Gaius and Pomponius the truly creative period of Roman law was more or less over with Labeo,²³ and that most of the crucial and characteristic developments were introduced in the late-middle and late Republic: â€?The great and unforgettable achievements of the classical jurists must not blind us...

²² It is criticised by 33 Cameron; but her concern is to argue that Christian (that is, epideictic) oratory took up the torch.

²³ 243 Schulz, 126: â€?The jurists of the Principate perfected the work of the great originators of the Republic.’

²⁴ Ibid. 129, apparently without consciousness of paradox. jurisprudence and advocacy were at their best in the relatively â€?pre-bureaucratic’ age of Rome; and that fact is in need of analysis rather than of being pushed under the carpet

For it has not been usual to give the palm for good government or, specifically, good law to the Late Empire. Roman lawyers have been accustomed to exclaim not just at the already- mentioned loss of creativity but at the diminished state in general of Roman jurisprudence after Ulpian and Modestinus - at its descent into handbook-knowledge and counting of authorities.^[550] So it looks as if we should have both advocacy and jurisprudence in the dock! Stress is, indeed, laid on the late Roman dichotomy of East and West: the West, where rhetoric still held sway, fell away into �vulgarism’, whereas the East struggled on and up to its great classical revival that produced Tribonian and the Corpus Juris, and it was in the East that the advocates went to law-school.^[551] A case might be made, actually, for the proposition that the �vulgar’ law, like the �vulgar’ tongues, held the seeds of progress and development, whereas the classical revival was an attempt to put the clock back; but it would be beyond the terms of the present book, and, in any case, it remains usually held that the achievement (eastern, indeed) of the �Bureaucratic Period of Roman Jurisprudence’^[552] was a lesser one - though it is fair to ask whether that communis opinio, too, needs revision.

The fact is that there are, within this whole vast area of discourse, a number of stereotypes, not only that about the �decline of advocacy’, needing to be challenged and being challenged in works of recent scholarship. First, the subversive question is nowadays raised, whether the Roman jurists of the great period were doing such a job, in perfecting their �autonomous science of law’, as should be beyond all criticism: do they really deserve such exclusive admiration as against the advocates? Second is the question what happened to that jurisprudence: what changes did it undergo? At the point when it linked up again (insofar as it did) with advocacy, how far had it, too, changed? That leads to the third, and difficult, question how far advocacy and jurisprudence did actually merge in the late Roman age; and, fourthly, some attempt must be made to estimate the intellectual level of that finally unified profession. Above all, the results of recent scholarship oblige us to be less cavalier chronologically instead of resting content with stock phrases like �with the Principate’ or �in the Late Empire’. For Roman jurisprudence after Ulpian, Liebs offers a division into four phases:^[553] an �epiclassical’ period^[554] from Aurelian to the end of the Principate; a period from Constantine to the fall of Rome, in which the first major changes took place under the rising influence of Christianity; an �interim’ period; and finally Justinian and Tribonian and the full Byzantine age. And we probably ought, in addition, going back to the high Principate, to acknowledge a distinct phase from Hadrian onwards, marked by advances in the bureaucratisation of the law, with, inter alia, the codification of the Edict and the rise of the �libellary procedure’.^[555] It follows that in seeking to chart the relationship between advocates and jurists we ought to be alert to the fact that we are dealing with a very long period. We have already benefited from the chronological range of the papyri, which are able to take us on, in Egypt, past Pliny and Tacitus and down to the middle of the fourth century; but the literature of the late age, especially the Fathers, can stretch our horizon further still.

But let us now examine the first of the stereotypes under challenge, and ask whether the �autonomous science’ striven for by the Roman jurists was quite so absolutely a Good Thing.^[556] It is well known that the �science’ they developed, though unsurpassable within the limits it set itself, made no attempt to redefine those limits, that it concentrated obsessively on succession and property^[557] and took little notice of criminal and administrative law and even less of provincial practice and the new courts of the cognitio extra ordinem. Not long ago it would have been said that the jurists did not even take notice of imperial legislation; that view has been partly rectified by Gualandi,^[558] but it is still true that they didn’t do it very well, e.g. did not insist on its being properly available, so that the advocates had to grub for it. As to the new courts, there is more about them in the Dialogus than the jurists ever tell us. The crowning absurdity, perhaps, is how they went on discussing the criminal law under the categories laid down in the statutes that set up the original quaestiones - but perhaps not, for there are more counts in this indictment. It is notorious that they gave little help to iudices in matters like the interpretation of evidence and documents; after all, if they despised the way the advocates (who had to) dealt with such things, why, if they, being on the consilia of judges and praetors, were the �real makers of the law’, did they not make some law about it? And why did the jurists not cause to be thrown away the lumber of mancipi and nec mancipi, solum Italicum and non-Italicum, legatum and fideicommissum, lifelongpatria potestasl Stein has shown that one can, with effort, detect what the famous first-century �Schools’ of jurisprudence were differing about;^[559] though jurisprudentially interesting, their quarrel is extremely introverted. And in the days of the �Schools’^[560] jurisprudential learning was still acquired as Aulus Gellius implies, by attending the expositions and �case sessions’ of the eminent practising jurists. When juristic learning began to be mainly book-learning acquired in real law-schools it is arguable that it did not improve but on the contrary became more tradition- and doctrine- and maxim-bound. We could, therefore, produce, at least as a rhetorical device, a counter-paradox, that it is a pity Roman juristic thought was not influenced more and sooner by the practising advocates: that might have broadened its horizons a bit! In fact, those scholars who believe that there was substantial influence from that direction attribute precisely that merit to it.

More later; but first we must tackle the major stereotype, the belief that has determined the whole historical picture of advocacy, namely that it took some kind of �downturn’ �with the Principate’. For the evidence is that it did no such thing - though one distinction certainly needs to be observed: the question whether or not advocacy (or jurisprudence, for that matter) declined in intellectual or moral stature as viewed with today’s eyes is a quite different one from whether it retained or failed to retain its prestige or its role in the society of its own day, and the latter is the historical question that must primarily occupy us.

It is a merit of the first half of the study by Parks^[561] to have stressed the continuing prestige and role of advocacy in the age of the Principate. (Kunkel, by contrast, giving, incidentally to his main theme, a list of advocates under the Principate,^[562] looked only with today’s - or yesterday’s - eyes, saying that whereas the profession continued to be served by great senators in the time of Augustus and Tiberius, after that it got into the hands of the likes of Eprius Marcellus: �over against the type of the aristocratic, distinguished jurist there stood the advocate, an upstart battling for riches and advancement, often of dubious moral qualities.’).^[563] Parks suggests that the very fact that free political oratory was suppressed by the imperial system meant that free oratory flourished the more in the forensic context, where the emperors were less likely to impede it. He points out that it is false to suppose that the quaestiones ceased their activity as soon as the Principate began; and that can be confirmed not only by the account in Tacitus’ Annals of the man who diverted cases to the praetor from the praefectus urbi,^[564] which implies that in Nero’s time the quaestio was still standard criminal procedure, but also by Quintilian’s remarks about the rusticity of judges in his day,^[565] since he is talking about the judges of the decuriae, i.e. of the old ordo iudiciorum. And if they were open to the wiles of oratorical persuasion in Cicero’s day, as we are forever reminded, so they will have been in Quintilian’s.

Parks makes use of the evidence for advocacy in the Emperor’s court, like the anecdotes in Suetonius,^[566] and the even more obvious evidence for it in the Senate sitting as a court like Pliny’s repetundae cases; he does not, as it happens, mention the particularly significant reference in Pliny to young men pleading (at some length, evidently, otherwise Pliny’s approving noises would have been pointless) in the court of the praefectus urbi ^[567] Parks brings in, too, the vigorous life of the centumviral court, Pliny’s harena, and the evidence for the increased amount of court activity in general, such as the increase in the number of fora.^[568] And, finally, he gives abundant references, from Quintilian, the Dialogus, Pliny and the satirists, to the wealth, power and prestige of the advocates of the first century AD and the way in which people beat a trail to their doors.

The importance of advocacy in the Roman legal order does not, then, end after Cicero, with either a bang or a whimper: it goes on. Cicero himself tells with pride the tale of the profession down to his own day, in the Brutus.^[569] Hortensius, his erstwhile rival, became a colleague and friend, and gets a tribute at the end of the dialogue. Cicero’s real rival in the palmy days was Calvus, of whom the elder Seneca records how once Vatinius, defendant in some suit, interrupted Calvus and said �Look here, I say, O judges, do I have to be convicted because he’s so good at his job?’;^[570] but Caesar, Brutus and Caelius were all in the top league, and so was Asinius Pollio, who with Messalla Corvinus saw in the next generation.^[571] The Dialogus is the successor of Cicero’s Brutus as a roll-call, though more selective and not including anyone living. Cicero and Asinius are one pair; the next are Domitius Afer and Julius Africanus; and the next M. Aper and Julius Secundus, the two main voices in the Dialogus itself,^[572] set in the Vespasianic age. There, too, Neronian- Vespasianic, are the terrible pair Eprius Marcellus and Vibius Crispus, spoken of with mixed horror and envy;^[573] and then we come to persons whom the Dialogus does not mention, Quintilian and Regulus, and then to the leading lights of the next generation, Tacitus and Pliny.^[574] Cassius Severus, in the Augustan age, is treated by the Dialogus as having �started the rot’, though admittedly being - just about - a real orator:^[575] Severus comes excellently to life in the elder Seneca, furnishing the evidence, as we saw earlier, for the press of business at the top end of the profession, and also the most English witticism in the Latin language (directed against a declamator).^[576] About Domitius Afer, too, sufficient is known for there to be a good sketch of him in the book of Grellet-Dumazeau.^[577] There were books of Afer’s witticisms in circulation, and it is very likely from such a compendium that the mot from Afer’s defence of Cloatilla comes.^[578] Quintilian says he was the best orator of whom he (Quintilian) has personal experience, though only when Afer was old and past his best, for he didn’t retire as soon as he should have done.^[579] In fact, although the great bulk of Quintilian’s examples are from the Ciceronian period, he does not scorn to quote from more recent oratory nor regard it as degenerate: he is trying to revive Ciceronianism against a powerful, prevailing and popular fashion, not resuscitate a dying art. These were serious men, engaged in what they believed to be an important activity; and it is worth a bet that much of the story of the �decay of Roman advocacy’ would have been differently told if a single one of Tacitus’ forensic speeches had survived, exemplifying that special quality that his friend Pliny had to go into Greek to find the mot juste for: �Respondit Cornelius Tacitus eloquentissime et, quod eximium orationi eius inest, seznnos.’^[580]

Some figures of the second rank are still significant enough to emerge in the sources: L. Vinicius, for example, in the elder Seneca,^[581] and Votienus Montanus, who occupies most of the preface to the ninth book of the controuersiae. Passienus Crispus and D. Laelius appear in Quintilian, and also - with high commendation - M. Trachalus;^[582] and in Pliny Larcius Licinus, said to have initiated the pernicious �claque’ habit.^[583] We naturally also hear in Pliny of the other men who pleaded with or against him in the big repetundae trials.^[584] And all this is only the tip of the iceberg: the pity is that so little information has come down to us about the courts outside Rome, though in every major conuentus-city advocacy must have been flourishing, as it was in Egypt. There is a reference in Quintilian to Julius Florus,^[585] said to be the leading advocate in Gaul, and men from the provinces are found practising in Rome; but that is all.

Suppose, anyhow, that after that barrage it be accepted that advocacy seems to have flourished down to the age of Pliny and Tacitus; what then? When did it all come to an end or change into something different? Or did it do neither of those things? Dare we, in this connection, forget Fronto? He was a practising advocate^[586] as well as a teacher of princes (and young Marcus was being trained in advocacy when he gave up one fashionable subject for another — and the other was not jurisprudence, it was philosophy); and when, later, people talked about oratorical style they said â€?Cicero, Sallust, Fronto, Pliny’.^[587] Juvenal s depiction in the Seventh Satire of the pride and pretensions of the successful advocates and the miseries of the unsuccessful may be disallowed as evidence for his age on the ground that so many of the horses he flogs are dead ones; but his already quoted comment in the Eighth⁶³ about how it is now the man of plebeian origin who is patronus of the unlettered aristocrat - that must surely be a contemporary jibe. Aulus Gellius must come in, for his very own story of the irrelevant pleader and the witty praetor,⁶⁴ and Cassius Dio for his remark that Marcus Aurelius gave unlimited time to those who pleaded before him.⁶⁵ And there are one or two places in the Digest where proceedings before the emperor are recalled, with mention of advocates.⁶⁶ And there is the already surveyed evidence of the inscriptions and the papyri, of the delegations and appeals, to pile into the dossier. Here we are, now, in the high Antonine age, and, far from â€?hontes’ and â€?miseres’, it looks like a rosy period for advocacy.

What, then, or who is responsible for the prevailing belief that advocacy wilted and died â€?with the Principate’? The answer is plain: it is the persistently reiterated view expressed in writings of the time as to the decline of the profession, especially that in the Dialogus, assumed to be by Tacitus, one of its leaders, that has given colour to the claim. But, quite apart from the need to remember that the relevant remarks in the Dialogus are made on one side of a debate, there is danger in accepting at face-value strictures about what a falling-off there has been from the â€?good old days’. That is a universal foible, and the speaker and his friends are always, curiously, exempted from the otherwise unmitigatedly gloomy picture they draw. It is, indeed, clear that the heart of the author of the Dialogus is in the argument put into the mouth of Secundus rather than that of Aper, who produces incontrovertible evidence of the continued prosperity and influence of advocates: the claim of Secundus is that â€?real’ oratory has gone, discredited by ever more meretricious practices - dancing, practically - and made redundant by brief proceedings before judges who are impatient of old-style oratory. In Cicero’s day there was the great political field for the â€?big guns’, and even centumviral oratory was in the second league: now, centumviral oratory is the biggest thing left.⁶⁷ (The

63 Juv. VII 106ff.; VIII 47ff., see p. 39, above.

⁸⁴ Gell. NA 122,6: yes, praetor, still! See p. 141 with n. 143, above.

⁸⁸ Dio LXXI 6,1 - like Pliny, see p. 135, above.

⁸⁸ E.g. D.28.4.3, before Antoninus Pius, ad 166, an altercatio between the aduocatus fisci and the advocate for the respondent. â€?Cornelius Priscianus aduocatus Leonis dixit...’, followed by oratio recta, exactly as we have met in the papyri; and D.4.4.18.1 on restitutio in integrum, quoted at p. 142, above.

⁸⁷ Dial. 38. attitude is, indeed, very like that of Tacitus to history-writing: nowadays it is â€?in arto et inglorius labor’ â€?toil in a narrow furrow with nothing grand’.)⁶⁸ Pliny echoes the complaint that business is now lacking in the variety and grandeur of the cases that came Cicero’s way: â€?my time is mostly taken up with boring stuff (frigida negotia)’, he says,⁶⁹ and goes on about venality,⁷⁰ and says he misses Regulus because Regulus at least cared,⁷¹ and that even centumviral cases are small beer (paruae et exiles).¹² Yet in other moods Pliny is immensely proud of the profession and his own part in it: â€?egi magnas et graues causas’,⁷³ he can say - and they, his big ones, were centumviral.⁷⁴ What is more, he published his orations: it is probable that we should not think them much good (if they were like the Panegyricus\), but that is a modern value-judgment, and bears not at all on the continuing prestige of the profession, as can be readily seen if we repeat how differently people would look at it if, instead of the Panegyricus, there survived a speech by Tacitus. And finally, as is urged above,⁷⁵ we ought to take Quintilian seriously. He is convinced, like the others, that oratory is not what it was, that advocates are nowadays capable of being very bad and have been trained in the wrong things, and all the rest of it; but towards the end of his famous â€?sixth-form literature syllabus’ for the aspiring orator, when he gets round to the post-Ciceronian orators, he does not denigrate them: â€?There are many others of high culture’, he says, and â€?Those who write after me about oratory will have a plentiful basis for giving real praise to the leading lights of the present generation; for... our present fully-fledged patroni are a match for the ancients and there imitates and follows them the industry of a younger generation striving for the highest standards.’⁷⁶ That is not defeatist talk, and at no point does Quintilian suggest that the role of advocacy is in decline or that the law or the public are learning to do without it. (Maybe, as a pendant, we may just remind ourselves

⁶⁸ Tac.Ann. IV 32.

⁶⁹ Pliny, Ep. 1X2,1.

⁷⁰ Ibid. V 13,6, arousing his editor to a fierce attack on the Roman Bar.

⁷¹ Ibid. VI 2,1, at p. 137, above.

⁷² Ibid. II14, passim.

⁷³ Ibid. V 8,6.

⁷⁴ So ibid. V 33, passim.

⁷⁵ In Ch. IV, excursus 4, above.

⁷⁶ Quint. Inst. X 1,116-18 and 122. that Cicero was already complaining of the decay of eloquence in his day: â€?intermissionem eloquentiae, ne dicam interitum’ â€?the cessation of eloquence, or rather its demise’!)^[588]

Combing relatively neglected sources, we should take up again Philostratus’ men of the â€?Second Sophistic’.^[589] It was noted in an earlier chapter^[590] that several of the subjects of those potted biographies were, besides being epideictic orators par excellence, also â€?straight’ forensic advocates at some time in their careers. Nicetas of Smyrna, for example, late first century, whom Philostratus introduces as the first important orator since Aeschines,^[591] tois men dikanikois ameinon edokei ta dikanika, tois de sophistikois ta sophistika â€?to the legal people seemed best at legal things, to the sophistic people^[592] best at sophistic things’. Philostratus reports a repartee of his en dikasterioi and tells the story of his brush with the proconsul Rufus, as a result of which he refused to appear in Rufus’ court again - but later had to defend himself before the same Rufus in Gaul. Scopelian of Clazomenae is another name to conjure with in Philostratus:^[593] he had an akme, a period of crowning success, in the dikasteria, where we are told he defended persons on capital charges without fee (that was presumably in the proconsular court), though his father’s cook got the better of him in litigation over the old man’s will by bribing witnesses and jury (presumably in the city court of Clazomenae). But Polemo is perhaps the best known of all of them. One anecdote about him was told in a previous chapter:^[594] another is to be found in the section, actually, about a different Sophist, Dionysius of Miletus,^[595] where it appears that Polemo turned up at Sardis to plead before the hekaton andres, the local Greek court for the district of Lydia, invited by a rich Lydian in danger of losing his all to come as his synegoros for a fee of two talents (and that’s how Dionysius came to hear Polemo in action). The importance of this source is, of course, that it tells us what was happening in the Greek-speaking part of the Empire, and shows advocacy flourishing there, too. Once again, however, there is lamentably little evidence about the local courts. There is Dio of Prusa’s remark about the incredible noisiness of the courts at Alexandria, and one other chance remark in the same author about how the annual conuentus at Celaenae brings together a huge concourse of dikazomenon, dikazonton, rhetoron, hege- monon â€?defendants and plaintiffs and advocates and magis­trates’;⁸⁵ and we had better not forget Pliny’s conuentus in Bithynia, in which â€?recitabatur apud me edictum quod dicebatur diui Augusti’,⁸⁶ for who, pray, recited that document to the acting governor? Surely an advocate, if our papyri are any guide.

In the light of the foregoing it seems permissible to challenge the stereotype and propose that the role and prestige of forensic advocacy did not die away or atrophy â€?with the Principate’ at all. Even in terms of the â€?big names’, what comes after Tacitus and Pliny and Fronto is Scopelian and Polemo. The East is beginning to take its destined share of the limelight (and after all, the â€?easternisation’ of the jurists has been long enough a stock theme) - the provinces in general as against Rome, and the eastern ones in particular. Not but what Africa was already in Juvenal â€?nutricula causidicorum’,⁸⁷ and we have seen the advocates at the proconsular Bar there in the inscriptions: they sound a confident enough lot.

That provides the cue to scrutinise the parallel stereotype, that which asserts the â€?decline and fall’ not, this time, of Roman advocacy but of Roman jurisprudence.⁸⁸ For if advocacy held up till, say, the Severan age and after that both disciplines declined that would be a story worth examining indeed. Or if neither declined at all, so much as changed - as would not be surprising over such an enormous period - we should be led to ask about grounds of change common to both. One reaction against the notion of the decline of Roman jurisprudence can be seen in a number of studies undertaken particularly in the 1970s, in

⁸⁵ Dio Prus. XXXII {the Alexandrian) 68 (von Arnim) and XXXV (to Celaenae) 15 (von Arnim), respectively.

⁸⁶ Pliny, Ep. X 65,3.

⁸⁷ â€?Wet-nurse of advocates’, Juv. VII148.

⁸⁸ For a summary of present positions and problems see 299 Wieacker, 18-19 and n. 61 on pp. 28-9. which was demonstrated the persistent â€?classicism’ of the surviving fragments of post-Ulpian jurisprudence, and of the edicts and rescripts, down to the very end of the Principate.^[596] Yet that adherence to the thought-modes of the past in a world in flux might seem stubborn and reactionary rather than admirable; and if in the Dominate, or even the post-Hadrianic Principate, law underwent changes in response to changes in government and society, that is not a reason for denigration but for analysis. What that society certainly was, however, was more bureaucratised, and so, in response, was the legal order; and it would still be open to the historical critic to believe that that constituted a less free and less satisfactory society and legal order. Liebs insists, on the one hand, that â€?To underrate the jurisprudence of late antiquity, or even deny to the late jurists the ability to so much as grasp the subtleties of the classical law - in so far as the legal questions could still arise - would be over-hasty.’^[597] Yet in his account of Pauli Sententiae^[598] he uses the denigratory vocabulary about that compilation that is usually used about late Roman jurisprudence: â€?sloppy’, â€?clumsy’; and he concludes that it was a â€?construct of small pretensions’ which would not have had the enormous success it did have had it not been attached to a great name and had Constantine not canonised it. We can see the law struggling worthily to adapt itself to change, but not doing so at a very high level of competence.

To the extent, however, that it be allowed that jurisprudence in the late Roman West (not to say the East) was in a less intellectually deplorable state than the stereotype has allowed, perhaps we might be the more justified in thinking that the reunion of advocacy and jurisprudence must have rescued the former at long last from the �noisome weed of rhetoric’. But now it is necessary to scrutinise another stereotype, and pose some questions about the alleged unification of the profession: how profound, how complete, was it, and how much difference did it. make? Those are very difficult questions. Starting from, as it were, the far end, we know that by the time of the Codes the law was a unified profession, part of the militia, the bureaucracy. But the road by which that consummation was arrived at is anything but easy to chart, and what it amounted to not easy to say. Liebs speaks of the jurists he traces in late Roman Italy as �the professional lawyers, which at that epoch advocates, for example, mostly were not’;^[599] and that caveat certainly has to be made, if only because even to Libanius, in the East in the mid-fourth century, it was a shock to find the potential clients of the schools of rhetoric moving over to the schools of law,^[600] instead of the advocates just, as in the �good old days’, consulting a jurist at need. Liebs also, though writing of the West, draws attention to an aspect of Ammianus’ denunciation of the legal profession, in which the historian (and we are talking about the second half of the fourth century) distinguishes four types of advocate in the East,^[601] of which one - only one! - is credited with juristic learning. Perhaps, actually, not too much weight should be placed on Ammianus’ at first sight detailed categorisation of the four types, for the first class seem to be the advocates, the second the jurists, and the other two more in the nature of Aunt Sallies, and the whole is a piece of polemic rather than analysis; but at least Ammianus is clearly distinguishing advocates and jurists. So is Lactantius, earlier in the century, complaining that the emperor Galerius destroyed everything:^[602] �eloquentia extincta, causidici sublati, iureconsulti aut relegati aut necati’; it does not sound as if he saw there as being a unified profession or thought all advocates were jurisprudents.

Coming to Memmius Vitrasius Orfitus, praefectus urbi in the first half ot the fourth century (his daughter married Symma­chus), Liebs says^[603] that he will have been not a merely rheto­rically trained advocate but one of the �by then already commoner’ type with juristic training. That perceived continuing distinction in the training and the resulting product gets Liebs, in fact, into a touch of embarrassment when he gets to St Ambrose.^[604] Ambrose

had, in his early career at the end of the fourth century, a post in auditorio praefecturae praetorii, seemingly an advocate’s post, for he �so splendidly argued suits {causas perorauit) that he was chosen by... the Praetorian Prefect to be his counsellor {ad consilium tribuendum)’: Ambrose, that is, went on to be an assessor of the Praetorian Prefect. No hint is here given of the young Ambrose being a jurist, yet assessorates were often held by jurists; so perhaps, Liebs suggests, Ambrose had �majored’ in rhetoric but at least done a subsidiary course in law. The distinction is still being made by Liebs in respect of the fifth century: Tn Narbonne in mid-fifth century you could learn law from a proper lawyer (“einem Volljuristen”), not just from a rhetoric-specialist teaching law as a subsidiary subject.’^{[605] [606] And he quotes Cassiodorus in a letter penned by the latter for King Athalaric in AD 527-8, raising a certain Fidelis to the post of quaestor sacri palatii." The king praises Fidelis as an illustrious pleader, and goes on: �Now gloriously judge cases, as you have laudably pleaded them’ (so this really is the move from �Bar’ to �Bench’). And, says the king, assideat tibi propria et exercitata doctrina �Let your own proved learning be your assessor’ - i.e. Fidelis will not need to consult an assessor because he is competent to be his own legal adviser. For, continues the king, it is especially shocking in a quaestor s.p. that he who is chosen to counsel the king should need an external prop {solatium alienum). It seems quite a strong implication that the ability to �ride on either saddle’ was not universal either in advocates or in quaestores s.p., even at that late season.}

What, in fact, was the professional career-structure? Advocacy, in time, of course, became an entry-point into the bureaucratised public service: perhaps the first sign of that is to be seen relatively early, in the careers of aduocati fisci — you took a special branch of advocacy, that related to administrative law.^[607] And later we find people who have been aduocati fisci appearing as jurists.^[608] Yet the evidence for them, and at all for advocates going on to be jurisprudents in a career sense, as opposed to just being more juristically trained in the law schools, remains small in quantity and dubious in quality until a very late epoch. The fashion for making much of the scanty evidence that some of the Severan jurists had advocacy in their earlier careers has waned,^[609] along with the belief that the Severan period was the �Age of the Jurist-Prefects’.^[610]

The account of the legal career-structure given by Jones^[611] uses throughout the terms �barrister’ and �bar’, which implies his acceptance, as raising no problems, of the unity of advocacy and jurisprudence in a single profession in the late Empire. His account of the stages in a legal career goes thus: �Provincial governors were often selected from the bar, and such men might be promoted to be vicars and ultimately praetorian prefects’;^[612] there was thus a �leavening of ex-barristers in the judicia­ry’.^[613] Further, many defensores were barristers. Especially relevant, however, are the assessors: �Every magistrate with judicial duties had an assessor, and some had more’,^[614] and the assessorate became a regular route of �aspiring barristers with political ambitions’, i.e. on the way to provincial governorships and upwards. �Men like this,’ says Jones, �who had not only practised at the bar but sat on the bench for some years, must have been well qualified for judicial office’;^[615] but (besides that he is here talking in regrettably and misleadingly modern terms) he adds �... but they were relatively rare’. As to what Jones calls �the law officers of the crown’, they �were not always chosen for their legal learning. Elegance of diction was often more highly prized than knowledge of the law, and rhetoricians therefore preferred to barristers.’^[616] At least the comites consistoriani �were probably usually drawn from the bar’, and they and the actual serving members of the comitatus at any moment �were evidently regarded as the repositories of the best legal learning’.^[617] Jones did not make in an explicit way the distinction made more recently by Liebs between advocates of the old type, with exclusively rhetorical training, and of the new type, trained at law-school (as well); but from what he does say it seems that he would have granted that rhetorical and jurisprudential learning and activity remained more distinct, and for longer, than is imagined by those who talk of the unification of the profession. Steinwenter was cross^[618] at being castigated for inventing the Byzantine �jurist-rhetor’; he defended himself by giving some more examples of late people who were both rhetorically and juristically trained, including Tribonian. But even he warned that one must not attribute juristic training to all the people who turn up as advocates.

There was still as much work as ever to be done by advocates, whether jurisprudentially trained or not. Much of it was in the administrative field, which has suffered - as was argued in Chapter II above - from such unjust neglect. More and more of the law, in the late Roman Empire, was administrative; and Schiller,^[619] who sought to show that there was no more civil jurisdiction in Egypt from about AD 500, allowed that there were administrative cases - though he insisted, with strict correctness, that they did not count against his thesis because they resulted in �administrative determinations’ rather than �judicial decisions’, whereas from our point of view that distinction is of no consequence.

Many career-relationships are possible between advocate, jurist and judge. The Anglo-American system, with which most readers· of these words are likely to be mainly familiar, is an extreme example, a marginal case, of the unity of the three, in that all High Court judges (the �Bench’) have necessarily risen through advocacy (the �Bar’) and formal jurisprudential opinions are delivered by members of the Bar and questions of law settled in the course of court proceedings. Modern �Civil Law’ systems markedly separate Bench and Bar: though all concerned have the same foundational training an early choice is made to go down one route or the other, and the judges are career-judges and officers of state. As for jurisprudence, a significant input into it is made by academics, professors of law, who are called upon by the court for legal opinions. In Rome of the Republic and early Principate the indices of the ordo iudiciorum did not, in principle, have to be trained lawyers at all, for they were private citizens chosen ad hoc for the instant case (though there was nothing to prevent a professed jurist from acting as a iudex if called upon, and it seems that they were often so called).^[620] So the three roles, advocate, jurist, judge, had, in principle, no career­link at all. Advocate and judge had to go to the jurist for their law, and any judge who wished not to court disapproval would invite a jurist on to his consilium. In the cognitio extraordinaria, which emerged gradually from the beginning of the Principate onwards, the judge was now the magistrate (though he might delegate to a iudex pedaneus, who could be anybody, lay or professional, ad hoc); he was still lay, and, though not himself ad hoc, held office for a relatively short span. That is the context in which the post of assessor began its rise to major importance for our theme,^[621] for it was to his assessor that the magistrate-judge would turn for his law. Jolowicz states that assessors were �normally chosen from among the advocati’: in 529 Justinian made it a rule that people could not serve as assessors and advocates concurrently, but could return to advocacy on retirement^[622] - though they might, on the other hand, proceed upwards to governorships, etc., as we saw. There, then, seems to be the legal ladder in the age of the Dominate, the link between advocacy and jurisprudence. One strong caveat, however, remains to be uttered: though virtually all the participants in that career-structure had now been to law-school, the schools of rhetoric had anything but died out, and were still the basis of the education of those who went on to the law-schools as well as those who did not, namely the top social class, whose ascent to the highest positions in the state did not involve them in climbing by merit.^[623]

In any case, there is still our last stereotype to be examined - or returned to: that law training that all the ambitious went in for, did it produce a higher intellectual level in the law of the Late Empire? Kunkel’s account^[624] is that it stands to reason that the rhetoricians had their best chance in the criminal quaestiones and the centumviral court, which faded away: civil procedure must have been, by and large, a domain for the jurists. The second half of that proposition has no justification: the fact that the big names in advocacy were mostly made in the public field is no warrant for supposing that, in so far as it was lesser men who pleaded before unus iudex and the new cognitional jurisdictions, they pleaded with more attention to law. And whenever any evidence turns up, as it does scantily in the traditional sources and more plentifully in the papyri, we find rhetoric in full swing - added to which, Kunkel leaves administrative law out of reckoning. From the second half of the second century, goes on Kunkel, the juristic element began to take over: jurisprudence took a great leap forward and the juristic education in the provinces began to improve. Well, there perhaps was more of it: Kunkel’s chronological indication no doubt relates to the earliest epoch to which we can with certainty carry back the law-school of Berytus.^[625] Honoré would have Gaius’ long­est period of activity at Berytus: it is not clear whether he wishes us to believe that the school was already in existence.^[626] We have seen the inscription of the man who ran the �Museum’ at Smyrna, conceivably a law-school, and went on advocacies to the provincial governors;^[627] and Philostratus in his biography of Apollonius of Tyana has stories of two young men, one from Messene, who wanted to study law �instead of Greek culture’, and the other of whom Apollonius advised to get a bit of schooling - but that was going to be rhetoriken... ton agoraion �rhetoric of the pleaders’,^[628] so those two stories cancel one another out.

Mitteis, who tried¹²² to make some estimate of the juristic level attained in the provinces, was committed to the premise that from Hadrian onwards the professional-lawyer element in the bureaucracy began to increase - which it did, but very gradually¹²³ - and that after that almost every high official must have been law-trained. He claimed that the provincial courts were dominated by iuris periti (presumably the magistrates by their assessors); well, the papyri we have examined, as to which Mitteis was a leading authority, do not give the impression that the role of advocacy was thereby diminished or that the advocates were more jurisprudentially oriented. After the constitutio Antoniniana, said Mitteis, they had, in the East, to try to learn a bit of Roman law, so they grasped at the books of formulas: no doubt; but that, though it represents an extension of the knowledge of Roman as against local law, is scarcely testimony to an improvement in the level of jurisprudence. And Mitteis himself concluded that â€?the verdict on the jurists must, all in all, be negative’.

We should learn the lesson of what we have seen the advocates doing in the papyri. It was increasingly unnecessary (having, in the eyes of the advocates, never been very necessary) to master the subtleties of juristic argument of the kind that had occupied the first-century â€?Schools’, whose leading jurists were conscious, still, of creating law through argument. For the legal practice of the late Empire was much more a matter of assembling and applying the relevant legislation,¹²⁴ the appropriate imperial constitutions, the edicts of the Prefects, the current of decisions and other such norms. That is what we have seen the advocates in Egypt doing,¹²⁵ and that is what the jurists were having to learn to do. We need not doubt that both parties were doing with efficiency and conscientiousness the job that now devolved on them, but we do not have to claim for either a high jurisprudential culture, and it would be perverse so to claim.¹²⁶ In respect of its intellectual content Roman law had become a textbookdearnt, at worst an epitome-learnt, subject,

¹²² 187 Mitteis, 193ff.

¹²³ 53 Crook, 66 and 101-3.

¹²⁴ See p. 45, above.

¹²⁵ Not only in Egypt: advocates were quoting previous decisions before Pliny at his conuentus in Bithynia.

¹²⁶ See 134 Jolowicz, 451-3.

and in respect of its social role it had become the handmaid of a bureaucratic system. In neither aspect (looked at, now, from the perspective of our own day) does it compare favourably with the still creative law of the late Republic and early Principate. Persuasion still had to be done: someone had to apply the rules to the instant case. But if that now had to be done within a framework of increasingly codified rules by persons trained to seek the answers in epitomes and reports of decisions, that is not likely to have caused it to be done better.

There seems to be little evidence, actually, about the practice of the advocates in the late Roman Empire, when advocacy was corralled and channelled and a handmaid of a bureaucratic legal order. But we might return to our rhetorical counter-paradox in another form, and maybe claim that, far from viewing with complacency the capture of advocacy by Law from the toils of Rhetoric, the historian might rather see that development as retrograde. For advocacy had been the point of input into the law of the values from outside, the perceptions of the community at large; it had been the one unguarded gate in the wall of the �autonomous science of law’. What late Roman advocacy may be suspected to have lacked is that �culture of argument, perpetually remade by its participants’, which was perceived by White as a characteristic of good law^[629] and can be historically observed in the democratic legal order of ancient Athens and the oligarchic, but not yet bureaucratised, legal order of Rome in the Republic and - still - the Principate.

What, then, at the end of so long a circuit, might be an answer to the questions posed at the beginning of this book: what did the Roman legal order want the Vicarious Voice for, and why, for that long period of Roman history from the Gracchi to Constantine, were advocates and jurists different sets of people? Some answer to the first question can, it is hoped, be derived from the pages above: the Romans wanted the advocate mainly for a cogent formal presentation, at length, of everything that could be said in favour of a case, and the litigant did not believe, by and large, that his or her own efforts could achieve that. The public did not, by and large, want the advocate as a general legal adviser, and the courts did not want him as an amicus curiae: his function was to achieve victory in an agon dictated by an �adversary system’ - the ethos of which persisted even when the system of procedural justice became increasingly �inquisitorial’ (though never fundamentally so). The advocate belonged to a culture, as much in Rome as in Greece, in which the word, the argumentum (not necessarily logical argument, it might just as well be emotional) was the most highly developed tool of communication, and persuasion by means of the word the most fully worked-out technology. Advocacy was also a product of an essentially non-totalitarian (free, if you like) approach to conflicts; for it implied a world in which it was worth arguing, in which conclusions were not foregone and you might, by the application of skill, win against the odds.^[630] Lastly, people wanted their legal battles conducted in the language that all could understand, that which they themselves would have used against their opponents if they had been bold enough and fluent enough. The elder Seneca has a not quite irrelevant story:^[631] P. Vinicius prosecuted Votienus Montanus on behalf of the city of Narbo before the emperor. �Oh, well,’ said Montanus, �I enjoyed Vinicius’ speech’, and he used to retail epigrams from it.

And that could be part, at least, of the answer to the second question, about the separation of advocate and jurist. It is a not unheard-of criticism of modern courts that what counsel say on behalf of their clients is for a good part of the time double-Dutch to the clients. Legal proceedings are a game played between the barristers and the judges, Bar calling to Bench, and they are all experts in the jargon of their technology: the client has no means of knowing whether his counsel has made the best case for him or not. That would not have satisfied the ancient Greeks or Romans: they wanted to participate in their agon, if only through the Vicarious Voice. Whether a book should end with a question may be questionable; but here, in fine, is a question: is it possible that what led to the separation of advocacy and jurisprudence at Rome was not so much the technicality and professionality of rhetoric, which issued as ordinary discourse, as the technicality and professionality of jurisprudence, which did not?