Excursus 2. The advocate as �representative’

The advocate �represented’ his client in court; but �represen­tation’ is not as straightforward a notion as might appear.^[488] Cognitores and procuratores also �represented’ people in litigation; so did the uindex in the ancient legis actiones·, so did, or could do, tutores and curatores.

The main distinction usually made in discussions of legal representation is between �direct’ and �indirect’ representation. In the case of �direct’ representation the representative, by his intervention, creates rights and duties not in himself but directly in his principal, whereas in the case of �indirect’ representation he creates by his intervention rights and duties only in himself, and there must then be other mechanisms for casting the rights and duties so created on to the principal he represents. The old uindex, for example, entered into the whole legal position of the person on whose behalf he intervened: if there was condemnation, he was condemned. A cognitor^[489] or procurator who undertook to pursue or defend a suit on someone’s behalf won or lost in his own name. Of the two kinds of representation, this, �indirect’ representation, was the only

IV. Advocacy in the traditional material 159 kind that the Roman law of procedure recognised: the idea that A’s action might create rights and duties directly in B presented conceptual difficulties to the Roman mind, not only in litigation.

It might, however, be objected that the distinction between �direct’ and �indirect’ representation is irrelevant to the role of the advocate, and that the latter is a representative only in the sense of being the �Vicarious Voice’, the mouthpiece, and so more analogous to the �mere nuntius' who, for example, carries a message of contract between one party and the other (�the boss says yes, he will have it’).

We must consider the term postulare and its noun, postulatio.^2&A That was - in so far as it concerns us - the request to the magistrate, in the civil law to grant a iudex or in the criminal law to accept a nominis delatio, i.e. the first crucial step in getting a court to take cognisance of your plea. Now the Praetor’s Edict contained detailed rules excluding certain people from the right to postulare. To some (those under seventeen and the totally deaf) he refused the right altogether, though he added. â€?If they do not have an aduocatus I will provide.’^{[490] [491]} Certain others he only allowed to postulare on their own behalf (women, the blind, and some infames personae). And a third category (the remaining infames personae) were only allowed to do so for themselves and certain relatives, plus their patronus or pupilli. The details do not matter; but to whom did those complicated, and quite early, rules apply? One might reasonably have thought that they were intended to regulate the rights of court appearance of principals, litigants in person, rather than mere Vicarious Voices; but the jurists who commented in the Digest^[492] on the Praetor’s Edict de postulando seem to have assumed that its provisions applied to advocates:²⁶⁶ thus, Papinian²⁶⁷ refers to a rescript of Antoninus Pius that someone â€?cui aduocationibus in quinquennium interdictum esset’ â€?who had been banned from aduocationes for five years’ was permitted, once the ban was over, to â€?pro omnibus postulare’.²⁶⁸ Postulare in the Edict occurs â€?in iure apud eum qui iurisdictioni praeest’, so what is being regulated there is not the appearance of advocates apud iudicem²⁶⁹ (for that was for the iudex, and no one else, to decide): again it looks as if the rule is about principal parties, not â€?mere nuntii’.

Leaving those considerations aside for the moment, let us turn to another field in which the same ambiguities seem to occur. In the criminal law of the Republican period, under the regime of the quaestiones perpetuae, there were rewards, laid down in the statute constituting each quaestio (hence called legum praemia â€?statutory rewards’) for bringing a criminal to justice, i.e. securing a verdict of â€?guilty’.²⁷¹ The story - there is no need to rehearse it in detail - begins with the lex repetundarum,²⁷² where it is laid down that that one of the accusers in a case before the quaestio, if there was more than one accuser, who has been most responsible for the conviction of the accused should be rewarded.²⁷³ The rewards were not financial: they might include such elements as, for non-citizens, the grant of citizenship or prouocatio, and, for citizens, praetorian or even consular sententiae locus (position in the speaking order), reinstatement in rank if previously deprived of it, transfer to a tribus of higher social standing, or exemption from the call-up. Of that evidence, too, the implication ought, one would think, to be that such rewards were meant for the people who initiated the actual

²⁶⁶ So do the older books on advocacy, e.g. 104 Grellet-Dumazeau, 83.

²⁶⁷ D.3.1.8.

²⁸⁸ See also D.1.16.9.2 and 5 (Ulpian de officioproconsulis).

²⁸⁹ D.3.1.1.2, though it must be borne in mind that in the criminal courts the formal â€?divided procedure’ did not apply.

²⁷⁰ CJ 2.6.

²⁷¹232 H.E. Russell, ch. 3, â€?Praemia legis’; 1 Alexander, esp. ch. 2, â€?Praemia’; 2 Al avcitih ot*

²⁷² FIRA I 7, lines 83-8 (pp.

²⁷³ With citizenship or prouocatio-phis-immunitas, as preferred. Those accusers were, thus, ex hypothesi peregrine.

IV. Advocacy in the traditional material 161 prosecutions, the nominis delatores, rather than the people who just pleaded the cases, if they were different. But things do not work out neatly, partly because the sources leave us curiously unsure, in some cases, whether the speaker for the prosecution was nominis delator or merely Vicarious Voice. Thus, in the pro Roscio Amerino, Alexander would much like Cicero’s opponent, Erucius, to be merely advocate for the prosecution, not instigator, but has to agree that he was hoping for a reward and was liable for calumnia.^[493] And if we turn again to the lex repetundarum, this time to one of its early clauses,^[494] the non-citizens who are being encouraged by the statute to prosecute and have, consequentially, been given the right to petere and nomen deferre in their own persons, when any one of them has taken that step, �si is uolet sibi patronos in earn rem dari’ �if he wishes patroni to be given him for that case’ (i.e. presumably if he has not already got patroni ready to act), he is entitled to be granted patroni by the Praetor; and they must be free-born Roman citizens, and if any of them turns out to be moribus suspectus the accuser can reject him and require the Praetor to give him another. Those patroni, it is plain, are not the nominis delatores but just advocates, yet they are subject to a moral scrutiny like that imposed on postulatores.

Cicero, however, the pleader of the Verrine orations (of which the diuinatio in Caecilium and the First Verrine were actually delivered), belies the lex repetundarum, for he was surely the initiator of that prosecution, not merely the mouthpiece of his clients, the Sicilians. It has more than once been suggested^[495] that he was intent on - even succeeded in - acquiring Verres’ sententiae locus, though he insisted that he was not out for the �spoils of Verres’.^[496] But more telling is the fact that he was obliged to compete with Caecilius in a diuinatio for his right to prosecute:^[497] for that cannot have been in the role of mere mouthpiece.

praeuaricatio (failing to pursue), calumnia (malicious prose­cution) and so on, but also eligible for rewards.^[498] Cicero in the Verrines is a different kind of �representative’ from the kind he is in his defences and his private orations.

How, then, should the discovered complexities about advocacy and �representation’ be dealt with? It ought to be granted that none of the obvious models is a good fit. A chronological account, in terms of the supersession of the ordo iudiciorum by cognitio extraordinaria, will go part of the way, in relation, at least, to postulatio·. the roles of plaintiff/accuser and defendant/accused, on the one hand, as against advocate on the other, evidently became less distinct, and for that the change in the procedural system, which occurred gradually over a long period, may provide an explanation. But the multivalence of �representatio- nality’ in criminal trials was already there in Cicero’s time, so we should perhaps allow that the psychology of the ancient Roman connexion of advocacy with protection, of the advocate as patronus, continued to play a part.

Two final points of a different kind remain to be taken. In the modern English courts, if you are �represented’ by counsel, counsel presents your whole case, and willy-nilly you leave it to him (or her): you might as well be absent. If you decide he is performing inadequately you can, indeed, dismiss him and engage another or take over your case yourself, but while he is your counsel he is your sole voice. That seems to be what usually happened in Rome in Cicero’s day, and Plutarch has a story:^[499] �Publius Sestius had him as his synegoros along with others in some proceedings, but wanted to do all the talking himself and wouldn’t let anyone get a word in.

IV. Advocacy in the traditional material 163 advocates and the parties participate in the agon·, and when the advocate speaks of the client he sometimes does so in the third person (as Cicero always did), but sometimes identifies himself with his client’s cause by speaking of�us’ and �our’.

Lastly, in the modern English courts, as everybody knows, the advocate is not only the Vicarious Voice of his or her principal but also amicus curiae, with a vast responsibility to the court itself and to abstract justice as well as to the client’s case. No mystique of that kind applied in the courts in the Roman period. There was no Bench with a capital �B’ and no Bar with a capital �B’, and no professional relationship between them: the Voice spoke for only one master, the �representative’ represented only one entity. '