Excursus 1. Terminology

That is our cue to turn to the epigraphy, for some fresher material to consider alongside the by now rather outworn literary references. Included with it is a little papyrological evidence that belongs here rather than in Chapter III. The analysis will not be formalistic but flexible, in order to stay close to the untidy reality. Most of the inscriptions are funerary or otherwise honorific; a high proportion of them are Greek, and from the Greek-speaking part of the Roman world, and all of them belong to the period of the Principate and later. Those features are blessings, for they extend the range of consideration of advocates in the legal order in the way the present study demands, and furnish links across the terminology which offer a better view of the diversity of professional involvement in the law in the time of the Roman empire.¹⁹⁷ The material is organised, in what follows, in three large, rough groups.

1. Aduocatus / synegoros

There are plenty of quite high-status aduocati·.

For equally plain synegoros by itself the inscriptional harvest, for the Roman period, is almost non-existent - save for a verse epitaph from Syria too long to quote,²⁰⁰ a second-century set of accounts on papyrus recording payments for various purposes, including one to a synegoros ²⁰¹ and a papyrus letter of Augustan date (which is nice) containing the remark that â€?Apis the synegoros has not yet reviewed the documents, but has put them off day by day’.²⁰² But the relative absence of â€?pure’ synegoros is misleading, as will emerge.

As appendix to the aduocatus-group may be cited a little crop of other titles. There is causarum orator·²⁰³ there are two

¹⁹⁷ Some important inscriptions have already been adduced in Ch. Ill, section 3, above. A good start was made by 117 Hitzig and by 64 de Ruggiero. Subsequently, see 30 Broughton IV, 585; 152 Kunkel, 264-70; 229 Robert on nomikoi; 245 Seidl; 196 Norr on pragmatikoi·, 169 and 170 Liebs.

¹⁹⁸ AE 1911, 99; AE 1917/8, 73; CIL VIII2734; 2393; 2743.

¹⁹⁹ Coinciding with the conclusions drawn from the papyrological evidence in Ch. Ill, above.

²⁰⁰ Kaibel, Epigr.

²⁰¹ P.Tebt. 1091; cf. payment to a rhetor, P.Amh. 128 (=P.Sarap. 67). But not all rhetores were advocates, see below.

²⁰² P.Oxy. 1479.

²⁰³ ILS 4152; 7746 (both late); and see n. 205, below. causarum patroni, one an eques Romanus²⁰⁴ and one very grand indeed, though late;²⁰⁵ one man â€?causas egit annis 38’,²⁰⁶ one â€?causas orauit’ and lived to 43, another to 75.²⁰⁷ And causidicus provides a small but satisfactory haul. First there are two â€?straight’ ones from Rome and Mainz, with dates;²⁰⁸ next there is a Wunderkind from Milan, who died at the age of 23, having been five times on delegations to Rome and elsewhere, whose figured monument illustrates the job of a busy pleader;²⁰⁹ next again a iuuenis eruditus, causidicus bis who only lived to 19;²¹⁰ but finally, and unforgettably, the first-century tomb, from the city of Rome, of the man who was the emperor Tiberius’ imitator, â€?qui primus inuenit causidicos imitari’ â€?who invented how to mimic advocates’!²¹¹

But the matter of first importance about this group is what, for want of a more elegant term, may be called its �shadings-off - and in three directions. The first is soon dealt with: one man (he died at 36) on a Roman inscription is called both aduocatus and iuris peritus.^[448] The second takes us to aduocatus (patronus) fisci (eighteen inscriptions) / synegoros (rhetor) tameiou (sic) (six inscriptions). To be noticed is the evidence afforded that besides the aduocatus fisci at Rome there were aduocati fisci in individual provinces^[449] and departments of the administra­tion.^[450] They were quite often equites Romani or local bigwigs; but they were also sometimes quite young. The third direction in which aduocatus points is the complex aduocatus rei publicae, aduoc. populi, aduoc. publicus, actor rei publicae I synegoros or pragmatikos tes poleos or patridos. It is a big historical area, and can only be dealt with here in so far as demanded by the present subject; it picks up again the requirement in the third section of Chapter II above to set the boundaries of advocacy wide. The

²⁰⁴ ILS 6744.

²⁰⁸ CIL X 4560, probably Ragonius Celsus, ILS 1272. See PLRE I, s.v. Ragonius Vincentius Celsus, where the reading is causarum [oratori],

²⁰⁶ ILS 7445.

²⁰⁷ AE 1953, 200, Rome; ILS 7747, Lambaesis.

²⁰⁸ CIL VI9240; XIII 7063.

²⁰⁹ ILS 6732; see 60 David.

²¹⁰ Wilmanns 2472 (=Mommsen, Inscr. Helv. 117).

IV. Advocacy in the traditional material 153 municipalities employed advocates for many purposes in legal relations with their own citizens, with other municipalities, and with central government. Not all the uses were strictly forensic, nor all the persons so used regular advocates, and pragmatikos is not only - perhaps not even usually - an advocate:^[451] he may just be a business manager looking after the affairs of a city (and somebody hated the fellows: �let them not be recommended to the divinity!’).^{[452] [453] But pragmatikos tes poleos I aduocatus rei publicae211 tends to be of equestrian status and to have held all the local magistracies; the only one of whom we know his further career, C. Caluisius Statianus from Verona,[454] a friend of Fronto, went on to be ab epistulis and, in 174, Prefect of Egypt. The people already looked at in Chapter II were doing that kind of job, which itself shades off into �embassies’ or delegations.[455]}

2. Orator / rhetor

As regards the second of these words care must be taken not to misinterpret the record, because a rhetor may not be a forensic speaker but a rhetoric-teacher, a schoolmaster, or a practising rhetorician but of a wholly epideictic kind;^[456] and some of the contexts in which rhetores occur are just lists of people owning property or, in one papyrus, a kind of town directory.^[457] One rhetor witnesses a document,^[458] one writes a document for an illiterate.^[459] On the other hand, P. Hordeonios Lollianos, the sophist, who was amphoteron rhetera dikon meletesi t’ariston^[460] â€?advocate of both laws and supreme at exercises’, was surely a forensic as well as an epideictic practitioner, and returns us to the domain of the Second Sophistic, of which it will be necessary to say more.²²⁵ And M. Oulpios Isodemos, â€?the most celebrated of rhetors’, honoured for his eunoia eis ten eparcheian â€?good will towards the province’²²⁶ had surely been advocate on its behalf, like Diotrephes, the rhetor of Antioch-on-the-Maeander.²²⁷ And for an overlap we can cite L. Annianos, rhetor kai nomikos, of Thyatira.²²⁸

As for orator, it is not on all fours with rhetor, even in the forensic use of the latter. Oratores seem to be men of social distinction: they include some men of senatorial rank (indeed, the epigraphically attested ones nearly all are), and they â€?run late’. One was patron of Sorrento;²²⁹ one is described as â€?oratori praestantissimo’ and â€?defensori clientium fidelissimo’,²³⁰ and was probably C. lulius Asper, consul for the second time in AD 212; one, M. Postumius Festus, another friend of Fronto, was â€?oratorem utraque facundia maximum’ â€?a very great orator in both eloquences’²³¹ like Lollianos above; one, mentioned by Philostratus, C. Sallius Aristaenetus, â€?orator maximus’, had a career in legal administration - decemuir stlitibus iudicandis, praetor tutelaris, iuridicus;²³² one was â€?orator et poeta illustris’, which might take him out of the forensic domain, except that he rose to be iuridicus of Spain and governor of Moesia;²³³ — and one was Symmachus. Evidently in the heyday of the Roman empire, and on into the Late Empire, people of note liked to have themselves recorded as oratores - and that in an age when we are asked to believe that rhetoric was dead!

3. luris peritus, iuris studiosus, iuris prudens I nomikos

Those terms sound as if they were hardly the business of the present study: �nihil ad Ciceronem: ad ius’ is irresistible; but there are some overlaps that need exploring. The Latin terms are rare in inscriptions. They can be found in tandem with the Greek term, as in the case of the Bithynian who is

²²⁵ In Ch. V, at pp. 186-7, below.

²²⁶ Arch. Anz. 57 (1942), 24 (=Robert, Hellenica V 34). And see p. 156, below.

²²⁷ SEG XXXI (1981) 899, first century bc.

²²⁸IGRRIV1226.

²²⁹ CILX 862.

²³⁰ CIL XIV 2516.

²³¹ ILS 2929.

²³² ILS 2934.

²³³ ILS 2939.

IV. Advocacy in the traditional material 155 commemorated as^[461] �A. Servilius Maximus iuris prudens: A. Serbeilios Maximos nomikos’, and in the Edict on Maximum Prices of Diocletian, where fees are fixed for �aduocato siue iuris perito’ and, correspondingly, for dikologoi etoi nomikoi (dative), for petitions, i.e. preliminary statements of case, and for the �day in court’.^[462] The Price Edict is probably also a case of the link between aduocatus and iuris peritus, because the phrase in each case looks like a hendiadys: either man would perform either task. In any event, links with aduocatus are provided by the man at Rome already quoted who was aduocatus and iuris peritus and another man in an African inscription, �father of three equites Romani', who was �in foro iuris peritus’.^[463] There are a clutch of iuris studiosi and a couple of magistri iuris, one of them an eques Romanus.^[464]

Nomikoi, by contrast, are the biggest epigraphical group of all.^[465] They are found in the papyri as well as the inscriptions, and in the former they have always received a certain amount of attention (and have been noticed already where they occur in the papyri discussed in Chapter III above). Some of them �run very late’, showing that the terminology was extremely stable. They were, certainly, the people called in to advise judges (i.e. magistrates), and perhaps also litigants, about the law in the �conflict of laws’ situations that Rome had to cope with in the east. We have seen some such experts in the papyri already, advising on Greco-Egyptian law,^[466] and one early third-century inscription records P. Pinnios loustos, senator of Amastris, nomikon, synkathedron of the Proconsul of Africa (where he would hardly have been advising on Greek local law, and the inscription comes from the Jewish cemetery at Sicca).^[467] An important �overlap’ is Likinios Roupheinos, consularis, �syne- goros for the province in the matter of the union of the Thessalians’.^[468] (The inscription is from Beroea, thus recalling the already quoted orator Ulpius Isodemos from that city who was honoured for his �good will towards the province’.)^[469] For M. Cn. Licinius Rufinus was a jurist, called, in an inscription from Salonica, enpeirotatos nomon �most experienced in the laws’.^[470] Thus the nomikos honoured at Philadelphia in Asia for �great services to the district of Pergamum’^[471] may constitute another �overlap’;^[472] and M. Aristonikos Timokrates, whom we met earlier,^[473] �chosen advocate before the tribunals of the governors (or (?) emperors) on behalf of his ethnos', was, epi ton nomon empeiriai �by virtue of his experience in the laws’, head of a mouseion at Smyrna, which sounds more like a school of law than of rhetoric, though maybe both. L. Annianos, rhetor and nomikos, we have also encountered earlier:^[474] he was high priest at Thyatira. (It must be admitted that there are disconcerting features about some of this epigraphical evidence. One nomikos died at 19, one at 20, one at 21.^[475] One �very good’ nomikos was also a �writer of epic and new comedy and iamboi and composer of encomiastic speeches’,^[476] sounding like one of those rhetors whose main business was festal.)

Kunkel,^[477] who took some inscriptional evidence into account, argued that a reunion of advocacy and legal learning began �especially in the second half of the second century’. Some of the �overlaps’ we have observed might be grist to his mill, for none of the nomi^os-material is likely to be earlier than the second century, and perhaps, in the man who ran that mouseion at Smyrna,^[478] we might catch a glimpse of law-school training in the pre-Berytus age. But caution is called for, because there may always have been such �overlaps’ in the eastern half of the empire and at the less exalted levels of society; and the real

IV. Advocacy in the traditional material 157 lesson may be not that there was a reuniting of the disciplines but that there was a tendency for people to exploit more than one skill and make a living at more than one job.

The nomikoi in the papyri, some of whom we have met already, also do not occur much before the second century. Like the rhetores, they sometimes simply appear in lists of proprietors and the like: if you lived in a bourgeois street in an eastern town you were quite likely to have a rhetor or a nomikos as your neighbour.^[479] They also simply turn up in private letters. We find them, however, drafting letters and docu­ments,^[480] and translating: the best-known will on papyrus, that of C. Longinus Castor,^[481] was translated by Gaios Loukeios (for Lucceius) Geminianus, nomikos Rhomaikos, and a new papyrus which is a more complete version than formerly available of another well-known text related to testation,^{[482] [483] [484] dated AD 249, ends with a similar formal declaration by the translator, nomikos Rhomaikos, i.e. a specialist in Roman legal drafting. Precisely another such specialist is loulios also called Sarapion, nomikos, who advises on the Roman practice about tabellae.266 We find the judge Lupus consulting his nomikoi (elsewhere in the papyrus it is called consultation meta ton philon)·251 we find nomikoi sometimes consulted by letter;[485] and we hear of payments to nomikoi for services unspecified.[486] Finally, in one papyrus, of Hadrianic date, there is a complaint of misbehaviour by hoi apo tes Aigyptou nomikoi:[487] they are failing, says the Prefect, to deposit asphaleiai ( = cautiones, securities) in the new Library of Hadrian as they have been told to. In that context they sound like what we might call �attorneys’. We do not find in the papyri nomikoi acting as pleaders.}

Nevertheless, taking all the material of this excursus as a whole, and adding it to the other epigraphical and papyrological

evidence furnished in earlier pages, what stands out is the untidiness of the picture, the way in which the different roles within the law were carried out in many combinations. We may well find one important reason for that in the fact that cognitio extraordinaria did much to unify the branches and tasks of the law. But we must not forget that we have been what Cicero and Gallus would have regarded as �slumming’, for this excursus has been a �tale of ordinary folk’. Cicero would have regarded the standards of advocacy as low, and Gallus would have regarded those of jurisprudence as equally so. If, in this milieu and at this level, advocacy and legal knowledge tended to be the province of the same people, that cannot properly be regarded as a victory of jurisprudence over advocacy, of law over rhetoric.