Factors in the selection of cases

An advocate considered a variety of factors when determining whether to accept a case. Examination of what influenced an advocate’s decision must again take into account his status.¹⁰⁷ An added problem (already noted) is the impossibility of determining rigid groups, of attributing specific features or motives only to those above a certain level.

Pliny quotes a saying of Thrasea Paetus about which cases advocates should undertake: “causas aut amicorum aut destitutas aut ad exemplum perti­nentes”, “cases of friends, or that no one else would take on, or that would establish a precedent.”¹⁰⁹ Thrasea Paetus is not alone in placing friendship at the top of the list. According to Quintilian, an advocate’s case will appear stronger if he can say that he took it out of duty to a friend or a relative.¹¹⁰ Aper, in the Dialogus, rejoices that the advocate is “semper armatus praesidium amicis", “always armed as a protection for his friends”.¹¹¹ Even Ovid suggests that advocacy allows one to protect one’s friends.¹¹² The formation of friend­ship with an advocate was, not surprisingly, not always left to happenstance.

A tie of friendship need hardly have benefited only the litigant. Serving as advocate could at times be very much a form of commerce, by creating grati­tude. Above, this commerce was referred to more diplomatically as “symbolic capital”.¹¹⁵ Quintilian defines its most basic element: “mutua benivolentia ute- tur”, “one good turn deserves another” and places the responsibility of repayment on the shoulders of the debtor.¹¹⁶ In his letter concerning the repetundae trial of Classicus, Pliny mentions the gratitude he could win from his clients at little expense to himself, since Classicus was already dead and so Pliny would not suffer the stigma of causing the downfall of a senator.¹¹⁷

Symbolic capital could be utilized in diverse ways. Besides the most obvi­ous political and economic advantages created by such connections,¹¹⁸ symbolic capital was used by Pliny, and especially Fronto, through letters of recommendation to obtain favors, including posts for others or even an advan­tageous hearing before a judge.¹¹⁹ Symbolic capital could also obligate the debtor to aid friends of the creditor, thus widening the circle of those affected by the initial transaction. Aper comments on the pleasure an advocate must find in people always coming to him to enlist his aid with respect to “sua aut amicorum discrimina", “their own disputes or those of their friends”.¹²⁰ At least one advocate must have felt quite intense pressure. Augustus attempted to prevail upon an unidentified friend to argue the case of one of his clientes.

The evidence used in this discussion of friends' cases shows how easily one can be swayed by the very nature of the sources to focus on the social classes from which the majority of our ancient authors come. One question begs an answer: how far down the social ladder could an advocate be situated before the cases of friends and clientes no longer made up the majority of his caseload? The absence of evidence hinders any satisfactory response. There is not one piece of clear evidence showing an advocate of relatively modest status taking on the case of a friend.

Perhaps the question is unfair. Considering Roman society and the inter­woven nature of city life, as well as the various forms that payment could take, it may be erroneous to assume that poverty would have necessitated an advocate's caseload be comprised of strangers' cases.

* * *

Saller and Brunt have shown that patronage did not disappear as an institu­tion when legislative and elective powers were removed from the people in the early imperial period.¹²⁶ So, among the upper-class advocates, at what point did friendship end and patronage begin? It is difficult to differentiate when an advocate undertook a case to be helpful to a friend from when he did so out of duty as a patronus}²'⁷ Even from our extensive collection of Pliny’s letters, it is difficult to draw such distinctions in his caseload. In only one instance, when Pliny undertook the case against the ex-magistrate Caecilius Classicus on behalf of the Baetici, can we be reasonably certain that Pliny served as counsel because of his position as their patron.¹²⁸ Aper describes Maternus’ legal caseload: “tot amicorum causae, tot coloniarum et municipiorum clientelae”, “all the cases of your friends and those of colonies and municipali­ties.”¹²⁹ Unfortunately, Maternus, like so many others, does not fit all our criteria in that, while we know he was an advocate who lived in Rome, we cannot determine if he represented these colonies and municipalities because he was their patron.¹³⁰

The terminology associated with advocacy and patronage is so interwoven that limited insight can be gained from attempts to study the vocabulary.¹³¹ The use of the term patronus for an advocate suggests that the role was origi­nally fulfilled by one’s patronus in the early years of Rome’s history.

We know of a case or two in which the relationship between the advocate and the client appears to be one ofpatronus and cliens. Scutarius is one example (discussed in Chapter Three), insisting that his patron Augustus be his repre­sentative in court.¹³⁷ From Cassius Dio’s account it appears the man had served under Augustus on campaign, but this is not certain. The soldier may have viewed all those in the army as generally under the patronage of Augustus, their leader, while no formal tie of patronage existed.¹³⁸ It also appears that Martial had a patronage relationship with an advocate. He tells us that he wished to bring cases against a number of individuals, and his advocate, Ponticus, fearing the influence of these people, refused to lay charges. Martial calls Ponticus “dom/mus", a seemingly inappropriate form of address if the relationship was solely professional.¹³⁹ In another epigram Martial tells us that he was refused the sportula — the reward for service pro­vided by a patron — by Caecilianus because Martial absentmindedly called him by his nomen instead of “domlnus". Clearly in this passage the relationship was one of patron and client. Furthermore, we sense that Martial felt restricted in his dealings with Ponticus, so why did he not just approach a different advocate? The assumption is that Ponticus was Martial's patron as well as his advocate.

Within Fronto's letters we learn that provincial bodies saw advocates in Rome as desirable potential patrons. In a letter unique among ancient docu­ments, Fronto responds to the council of Cirta, which had asked him to propose some individuals whom they could approach to be patron of their town. This letter is invaluable for providing the criteria that towns should consider when choosing a patron: he should be well known in the town, he should be consular, and he should be a skilled advocate who can properly rep­resent the town's interests.¹⁴⁰ Two of the three candidates Fronto proposes are known from other sources to have been advocates. Aufidius Victorinus, to whom Fronto's daughter was engaged, undertook the defence of one of Fronto's “famlllares” (intimate friends).¹⁴¹ Postumius Festus, also a native of Africa, is commemorated as an orator in an inscription found in Rome.¹⁴² Fronto himself was patron of the town of Calama, near to his hometown of Cirta, and had assumed a patronage type of relationship with either specific communities in Cilicia or the province as a whole.¹⁴³ The frequency of litiga­tion emanating from provinces against various provincial officials in Rome, and the example Pliny provides of representing two provincial clients on two occasions, surely allows us to conclude that provincial individuals actively sought out and maintained a constant relationship with capable advocates in Rome who would, as patrons, guard their interests, or those of their commu­nity or provincial assembly, in the courts of Rome.

Epigraphical evidence of patrons of communities and provinces encourages us to seek amongst the records for advocates known to have lived in Rome, thereby providing proof of patrons serving as advocates.¹⁴⁴ L. Fabius Severus is one of the few patrons we find in the inscriptional record whom we can likely place as an advocate in the city of Rome. From a long honorific inscription, the beginning of which is fragmentary, we learn that he argued many public cases on behalf of the community of Tergeste (the inscription suggests the commu­nity was his hometown) before judges appointed by Antoninus Pius as well as before the emperor himself. The inscription as it survives does not refer to Fabius Severus as patronus. Nonetheless, the great length of the text, as well as its tone, strongly suggests that he was a patron; this information may have been contained in the lost fragments at the beginning of the inscription.¹⁴⁵

The popularity that such advocates could gain in the local community is charmingly described by Aper in the Dialogus:

fama et laus cuius artis cum oratorum gloria comparanda est?... ad-venae... etperegrini iam in municipiis et coloniis suis auditos, cum primum urbem attigerunt, requirunt ac velut agnoscere concupiscunt.

The reputation and fame of what other profession can compare to the glory of oratory?... Visitors... and non-residents even, when they first step into the city ask about, and, as it were, are very eager to become acquainted with those whom they have heard about in their cities and colonies.¹⁴⁶

One can easily picture those grateful citizens of Tergeste searching out the house of Fabius Severus immediately upon their arrival in Rome.¹⁴⁷

Any attempt to identify advocates who served as patrons of communities and provinces immediately excludes the majority of advocates in the city of Rome. By definition, such patrons occupied the top levels of the Roman social hierarchy. While the wealthier and more politically connected advo­cates would have been sought out by provincial and city councils for more powerful representation, even lesser advocates had the opportunity to work with individuals who did not live in Rome. From Martial we learn one method by which advocates in Rome came into contact with such people. He remarks that, if he were to start a legal practice, he would gain the business of many merchants from his home province:

Nam si falciferi defendere templa Tonantis

sollicitisque velim vendere verba reis, plurimus Hispanas mittet mihi nauta metretas et fiet vario sordidus aere sinus.

For if I wished to defend the temple of the sickle-bearing Thunderer and sell words to worried defendants, many sailors would send Spanish casks to me and my pockets would be filled with a variety of coins.¹⁴⁸

In a world that lacked modern means of communication and advertising, how was a person to find an advocate in an unfamiliar town? Personal connections through family members, friends, and acquaintances, perhaps even as distant as a far-flung relative of a fellow townsman, must have played a substantial role. Thus, Martial was able to identify the origins of many cases that would come his way. A provincial, worried over his case, would certainly have found comfort in an advocate who understood his home culture and language, and could explain the unfamiliar affairs of Rome in understandable terms.

Millar's examination of the vast number of cases from communities that went before the emperor's court indirectly suggests that a similarly vast num­ber of advocates were representing these communities. Fabius Severus, mentioned above, represented his city of Tergeste on numerous occasions in the emperor's court.¹⁴⁹ An inscription from the town of Side praising one of its decurions states that while he was a member of its council the city was suc­cessful in all the cases it pleaded before the emperor:

... Ζηνοδοτος αγνός δίκαιος

φιλόπολις συμφέρων

τή πατρίδι έφ’ ου πάσας τάς

δίκας η πόλις ένίκησεν

έπί του ΰ-ειοτάτου

Λυτοκράτορος περί ων...

... just and upright Zenodotus, lover of his city, useful to his homeland, while he was decurion, the city won all cases before the tribunal of the emperor....¹⁵⁰

It would appear that in a year a city like Side could have had numerous cases going to the emperor's court.¹⁵¹ Surely the local communities could not have relied solely on their urban patrons to undertake all these cases. Perhaps the most important cases were entrusted to their patrons — the ones in which it was felt the influence and connections of a patron would play an important role. However, a good portion of perhaps more mundane litigation could have been more than adequately managed by advocates hired in the city, and likely those in charge of hiring would have attempted to find people from their home community or province with whom they felt more comfortable.¹⁵²

Thus far we have not considered advocates undertaking the cases of their family members. Surprisingly, within the prescriptive lists of cases advocates should take, those involving one's family are not mentioned. Quintilian's comment that an advocate's case will appear stronger if he can say that he took it out of duty to a friend or a relative is the only reference made to fam- ily.¹⁵³ Very few actual cases are even heard of in which an advocate represented a family member. How is this silence to be interpreted? The family was cer­tainly the cornerstone of Roman society, so it seems impossible that advocates would not have used their specialized skills for family benefit; surely, repre­senting a family member would have been just as important to advocates as representing a friend. No obvious explanation presents itself. Even over the long years covered within his letters, Pliny does not once mention taking a relative’s case. We must conclude that advocates did represent family, but that nothing is mentioned because it was simply assumed an advocate would take such cases. Humility may also have played a role. An advocate such as Pliny was expected to look after his family; to state in his letters that he did so would have been obvious and overly self-congratulatory. That so few third- party accounts mention advocates representing family may be due to nothing more than the quirky randomness of the sources that survive.

Private practice was but one method for an aspiring advocate to make a liv­ing. For those lacking independent wealth and completely reliant on cases, employment as advocatus fisci may have been particularly appealing. The first attestation of the title appears during the reign of Hadrian.¹⁵⁴ However, other sources show that the state was already hiring advocates to undertake financial cases before that time.¹⁵⁵ An advocatus fisci represented and defended the inter­ests of both the aerarium and the fiscus, the treasury of Rome and the privy purse, in the courts of Rome. In an epigram considering advocacy as a profes­sion, Martial proposes two ways he would make his living — as an independent advocate taking the cases of his Spanish compatriots, or as a state advocate where he would “falciferi defendere templa Tonantis... ”, “defend the temple of the sickle-bearing Thunderer....”¹⁵⁶ The “sickle-bearing Thunderer” refers to Saturn, the god whose temple housed the state treasury in the Forum Romanum. It is assumed, though we cannot prove it conclusively, that this office employed quite a large group of advocates; the financial issues of the state trea­sury no doubt guaranteed constant involvement in the various courts.

Pliny records a case undertaken by these advocates. A quaestor serving abroad had in his possession the salary of his secretary. The secretary died before receiving the pay, and the quaestor did not know what to do with the money. In Rome the secretary’s heirs claimed the money; so, the matter went to court and the state’s position was argued by advocates employed by the aerarium¹⁵⁵

Like Martial, many men considering a career in advocacy were no doubt aware of its possible irregular nature and must have carefully weighed this option with its steady pay. The post may not, however, have been as respectable as private practice since the advocate was assigned cases rather than being reliant on his reputation or skill to attract clients.

We know the identities of two men who were advocati fisci. Quirinus, par­ticularly gifted as a prosecutor, is known from Philostratus to have been an advocatus fisci.¹⁵⁸ Also from Philostratus, we learn that Heliodorus, a Celt, so impressed Caracella that he was appointed head of the advocati fisci.¹⁵⁹ Other salaried positions, either within the state administration or with private cor­porations such as the various collegia, must also have been available to those interested in a more reliable form of employment. Perhaps the reason we do not know more of advocates in the middle wealth bracket is that they were employed in such jobs.