For comparison: advocacy at Athens and in the Hellenistic world

Rome had her great forensic practitioners, but Athens assuredly a yet more celebrated canon. And the way forensic advocacy operated in the two cultures in the heyday of each was in one respect so different that no account of advocacy in the Roman period can ignore comparison with the circumstances in which the earlier, greater tradition flourished.

Let us approach the main difference at once: in Roman courts litigants are frequently represented by advocates, whereas at Athens the litigant in principle appears and argues in person. What we find the Athenian doing, in fact, is delivering by heart³ a speech written for him, for a fee, by a rhetorical expert: the Vicarious Pen, one might say, instead of the Vicarious Voice. He will maintain, with remarkable consistency, down to intimate personal touches, the fiction that he is making it up as he goes along. It is hard to credit, but we must, that even the immensely law-technical speeches of Isaeus were written by him for clients

¹ No attempt, however, is made here to discuss Greek rhetorical theory and its growth. See Introduction, n. 10, above.

² 16 R.J. Bonner; 158 Lavency; 306 H.J. Wolff; 254 Soubie.

³ 68 Dover, 150-1. Not everybody would have been able to do it verbatim·, friends might prompt, and so on.

to deliver in person, and, more generally, that in the forensic part of their activity the �Attic Orators’ did not orate. Such forensic ghost-writing, �logography’, and the need for it, was virtually non-existent in the case of Rome.^[68]

It appears that the law of Athens required the litigant to be present in person; there used to be a belief that Athenian law also forbade the litigant to be spoken for by anybody else, except, presumably, in circumstances of incapacity, but that is so hard to reconcile with what actually happened that it tends nowadays to be rejected.^[69] The development of logography is perfectly straightforward to understand in its own terms and context.

We evidently should seek corresponding structural features that would help to explain why the Athenians and the Romans had such different forensic traditions. There is, actually, one further feature of the Athenian practice to bring in which makes the contrast less stark and also becomes important in the sequel; but first let us look at one principal feature of the Roman structure. For one explanation of the difference has pretty certainly to do with origins. It is historically accepted that the origin of Roman advocacy lies in the relationship of patronus and cliens, going back to the days of the freeborn clientes who were, though Roman citizens, in certain respects �second-class citizens’. In return for clientage the cliens was entitled to call upon the patronus for aid, including legal aid; and that concept had an extraordinarily tenacious life, as will be seen.^[71] At Athens, in the classical age, no freeborn citizen had a �patron’. There is a difficulty of comparison, in that we do not know what went on in the law courts in the corresponding archaic period of Athens when the thetes were only �second-class citizens’: if they had patrons (as metics and freed slaves did later) the force of the difference would be diminished, but we do not know that they did.

However, it is time to unveil the �further feature’ of Athenian practice, synegoria, understanding of which has benefited particularly from the study by Lavency.^[73] A synegoros is, literally, a �with-speaker’, who joins you in pleading. The litigant was obliged, as said above, to appear in person, but there was nothing to prevent him being supported and assisted by a cloud of friends or well-wishers, to cheer, testify or plead on his behalf.^[74] Even Plato (in the Laws, significantly) allows for a bit of synegoria.^[75] That principle of assistance provided the basis for the Vicarious Voice; and that that was the basis can be seen in the Rhetorica ad Alexandrum,^[76] where it is laid down that if you want the court to accept you as a synegoros you must claim you are a friend of the litigant or have a personal enmity to his opponent or are moved by the defendant’s plight or by a sense, at least, of the public interest. It was a way by which the rhetorically less able could be helped by those more able, thus contributing to the equality before the law that the Athenians were so keen on. A man’s deme, even, might find him an advocate, and so might his hetaireia. The fiction might need to be kept up: the litigant would utter a deprecatory sentence or two and ask to be represented by his friend X, who was more accustomed to public speaking. And there was no reason why the speech of the synegoros should not have been composed by a logographer.

Taking logography and synegoria together it can be seen (as is emphasised by Dover)¹⁵ that, at any rate from Socrates’ time onwards, there was at Athens plentiful assistance available to litigants. The common citizen might just want advice, and a logographer might act as a kind of solicitor,¹⁶ or he might write you a whole speech, or portions, or coach you, or even act as your synegoros. The Athenians, says Dover, were ambivalent about it all (as, we may add, about many matters): a man of whatever status, if he had right on his side, ought to need no rhetorical skill, and so the composition of speeches for others was demeaning, and to suggest that someone had come into court for another for money was exceedingly slanderous. But since they loved an agon and were connoisseurs of the art of speech they craved for professional skill and assistance. We hear about â€?habitues of the court’, people whose skills were available for composing or making speeches;¹⁷ and that, as will be seen, had a long echo.¹⁸ Lavency concludes that, nevertheless, all that did not quite add up to a professional Bar,¹⁹ and suggests that that was because of

¹³ An alleged statute: [Dem.] xlvi 26.

¹⁴ Caution is needed, because our sources for the fifth century are scanty. Andocides had various defenders (Myst. 150, the word synegoros not used), and Xenophon {Apol. 12) says that Socrates had synegorountes (see 27 Brickhouse and Smith, 75-6). Logography was in full swing by Lysias’ time; it is possible that synegoria was, too, and no confident assertion can be made as to the chronological, or other, relation between them.

¹⁵ 68 Dover, 148-51.

¹⁶ Lavency quotes [Dem.] Ivii 20-1; add Xen. Mem. II 9: Crito retained an attorney to harry people.

¹⁷ 158 Lavency, 96ff.

¹⁸ See especially Ch. Ill, below, for the evidence in the papyri for the equivalent of â€?dock briefs’ (with even, perhaps, the â€?cab-rank principle’?).

¹⁹ 70 Egger was mostly about logography and took not enough account, from our point of view, of synegoria. the Athenian fear of the seductive power of rhetoric; obviously, we need to compare and contrast that with the Roman experience, not least because the nature and degree of professionalisation of Roman advocacy is itself a question that has to be raised.

At Rome, advocacy was originally (and for long) technically gratuitous and was never supposed to be a source of profit or livelihood, though in practice it often was so. At Rome again, perhaps more than at Athens, forensic advocacy regularly possessed a political dimension.²⁰ Of both Roman advocates and Athenian logographers and synegoroi it has endlessly been complained that they engaged in unscrupulous distortions for the purpose of winning their clients’ cases: thus, even Isaeus’ speeches, written in the most purely civil and technical field of inheritance law, are notable - notorious - for brilliantly unscrupulous rhetoric.²¹ In fact, it is often taken for granted by Roman lawyers that that wicked, perverted activity was an import from Greece without which the Romans would have been content with a more sober and jurisprudential kind of advocacy.

Were there differences in the attitudes of Athenian and Roman advocates to matters of evidence and proof? Soubie, who examined the Attic orators in relation to proof-procedures,²² concluded that there were some observable differences, at least as far as concerned entechnoi pisteis, proofs relying on argument: the Romans were more pragmatic, the Athenians more logical and ratiocinatory.

It looks as if, after the age of the great Attic orators, logography was given up, perhaps in relation to the ending of radical democracy and its ideology. Synegoria, on the other hand, ordinary, straightforward advocacy, became the norm. Very little, in truth, is known about the legal orders of other Greek states contemporary with the heyday of Athens, and of

²⁰ 61 David,passim.

²¹ See the Preface to Wyse’s Isaeus, with the passage there quoted from Dion. Hal. On the Ancient Orators (Isaeus 3 ad fin., Loeb edition p. 178): tons dikastas katastrategei â€?he out-generals the jury’.

²² 254 Soubie, 131ff. their procedural law, and so, of their use or otherwise of advocacy, nothing; and we are hardly better off in respect of the Greek states in the Hellenistic age. It is, therefore, conceivably a historical accident that logography is not heard of outside Athens.²³ There is, however, just sufficient evidence to justify what we should in any event have supposed, that synegoria was normal and regular in the Greek-speaking world, probably in classical and certainly in Hellenistic times.²⁴ To Ptolemaic Egypt we shall come, briefly, in a moment; before that, two observations fall to be made. The first is that when Rome absorbed the Greek world there existed in that world a tradition of forensic advocacy which, whatever their origins, was much like its own, so that what went on in (say) Cicero’s assize in Cilicia will not have been much different, in regard to advocacy, from what went on in Rome (except that Romans thought that Greek oratory was too florid!). Secondly, Hellenistic evidence begins to testify to an aspect of ancient advocacy of which not enough notice has been taken, and which I shall argue to be of great importance for our subject: advocacy in proceedings between states or on behalf of a state.

A useful starting point is an inscription from Kalymnos of the second century BC.²⁵ It records a decision by an invited court of arbitrators from the city of Knidos in a suit between Kalymnos and certain citizens of Kos. The Knidians lay down the whole procedure to be followed (corresponding, no doubt, to their own mos iudiciorurn)·, and at lines 9-10 the inscription reads: â€?And let it be allowed to each party to provide four synagoroi, and let the synagoroi be permitted to act as witnesses.’ Arrangements are here being made for inter-state litigation and, in that context, for advocacy (the permission to be witnesses being, of course, secondary). We are reminded how much â€?international arbitra­tion’ went on amongst the Hellenistic states. When it is about public matters we talk of â€?diplomacy’ and â€?ambassadors’; but

²³ Though it is usual to believe in the genuineness of Isocrates’ Aegineticus, which purports to be a speech written by him for an Aeginetan metic. The belief, however, that the Suda, s.v. Loukianos (Adler III, no. 683), implies that Lucian became a logographer when unsuccessful as an advocate at Antioch, is no longer held.

²⁴ E.g. Cic. pro Mur. 4, â€?si, ut nonnullis in ciuitatibus fieri solet, patronus (a defence advocate) huic causae publice constitueretur...’; and, for the â€?other way round’, note that Plutarch’s word for Cicero as advocate is synegoros, Plut. Cic. 26, 8. In Plutarch’s Lives synegoria is the standard word for a law-court speech.

²⁵ Syll.³, 953.

putting the case of your state in a public-law dispute is not different in principle from doing so in a matter of inter-state civil litigation. And so when we encounter the half-legal, half- diplomatic activity recorded in the pages of, for example, Livy we should not fail to recognise in it a major branch of Greek advocacy; and that will have its resonance when, presently, we come to such evidence as that of the Second Sophistic.

With Ptolemaic Egypt we approach the world of the papyri, with which we shall be occupied a great deal in Chapter III. Apart, however, from one celebrated protocol of proceedings, the �Hermias-Prozess’, of which more will be said in a moment, the Ptolemaic material is scanty and not particularly helpful. There are a couple of documents in which people seem to be pleading on their own behalf,^[77] and one useful piece, dated 157 BC,^[78] which is a petition to the king against someone who is appearing with professional advocates, meta synegoron, whereas it is alleged to be a rule that advocates are not permitted to appear in cases against the revenue. That rule, if authentic, would be typical of the bureaucracy of Ptolemaic Egypt; no such rule survived into Roman times.

The â€?Hermias-Prozess’, however, sheds a welcome ray of light, not least because it is on a very large scale.^[79] A certain Hermias is plaintiff in two court cases, one in 119 BC and one in 117. In each case the document is a historical narrative recording what took place. In each, Hermias and, it is implied, the defendants are present, and in each, proceedings begin with the petition of Hermias. In the first case, after the petition there was no doubt a speech by Hermias’ advocate (but it is lost in a lacuna), and then (Col. II, line 34) metalabon ton logon â€?taking his turn to speak’, ho synkatastas tois peri ton Horon â€?the person contending along with - i.e. advocate of - the side of Horos’ (Horos being the defendant and his advocate being called Deinon) addresses a question to Hermias, to which he (not his advocate) replies â€?No’. Whereupon the highly-skilled, highly rhetorical (and appro­priately named) Deinon embarks on a major speech, with a brief but trenchant exordium, a long, combined narratio and refutatio and a peroratio, and the judges give a decision for the defendant, actually repeating Demon’s phraseology. At the second hearing, two years later, after the reading of the petition (Col. Ill, line 17), kai dikaiologethenton ton synkatastanton autois, peri men tou Hermiou Philokleos hyper de ton peri ton Horon Deinonos â€?and appearance as advocates having been put in by the persons contending along with them, on behalf of Hermias Philokles and on behalf of Horos and his party Deinon’, Philokles begins by more or less repeating the terms of his client’s petition and then produces a mass of arguments and documents (irrelevant, actually, and probably introduced to pull the wool over the judges’ eyes). From Col. IV, line 35, however, he meets his Waterloo, for Deinon tears it all to pieces in a long speech, and again the judgment follows the orator’s phrasès. The â€?Hermias- Prozess’ is precious not merely because it foreshadows much that we shall presently meet in Roman Egypt but because it furnishes what would otherwise be lacking: testimony to the existence of highly professional advocacy, carrying on the Attic tradition, in the Hellenistic age (notwithstanding that to characterise the advocates it uses neither synegoros, which came to be the normal word in standard Greek prose, nor rhetor, which we shall meet as the usual term in the papyrological protocols of the Roman age).

For, whatever the different origins and modalities of the two great ancient traditions of advocacy, one characteristic overridingly important for present purposes they had in common, namely that they both operated in �adversarial’ systems of law in which litigants wanted the best possible presentation made, in an agon, of their points of view.

2.