Status, pay, the “decline of oratory”, and terminology

Modern studies of Roman advocacy often begin with a description of patron­age, and note that the role of advocate was fulfilled by upper-class patrons of the involved parties. While perhaps accurate with respect to the republican period, the applicability of this description to the imperial period has been called into question.¹ Certainly many men of the upper classes aided in the courtroom those within their network of dependants (such patrons are very visible within the sources, which so clearly focus on the wealthy); however, there were also many other advocates who differed widely from the upper­class advocate in wealth, status, and education.

Several advocates from the upper classes are easily identified, as we find emperors and members of both the imperial family and other consular fami­lies taking on friends' cases.² A large number of “new men” also practised advocacy and many, in fact, became illustrious — Agrippa (friend and chief aide of Augustus), Eprius Marcellus, Pliny the Younger, Regulus, Vibius Crispus (whose successes were built on a foundation in advocacy), and Tacitus the politician and historian, for example.³ Equestrians such as Erucius Clarus, Pompeius Saturninus, Seneca the Elder, and Suetonius also argued cases.⁴

The imperial period saw an increase in the number of advocates of provin­cial birth as well. Writing in the early part of the second century, Juvenal comments on the numerous advocates coming from Africa and Gaul, and the province of Spain must also be added.⁵ From Africa came Septimius Severus (the friend of the mid-first-century poet Statius), and Fronto (c. 95—166) as well as the latter's contemporaries Servilius Silanus, Postumius Festus, and Aufidius Victorinus.⁶ Domitius Afer, who died in 59, and lulius Africanus (a contemporary of Pliny) both came from Gaul.⁷ Spain was the birthplace of Licinius Sura, Martial, Herennius Senecio, and Ursus Servianus, all roughly contemporary to Pliny.⁸ During the Flavian period many of the most power­ful advocates were from relatively obscure and often provincial origins.⁹

Attempting to examine those advocates in any class below the uppermost is much more difficult, not only because few appear in our sources, but also because if they do it is often a single mention, with no further information. One is left to infer — from general comments about their pay or eagerness to find work — that these advocates were not from the upper echelons.

As noted earlier, traditionally one of a patron’s duties was to provide legal representation in the courts for his various clients, who did not pay for this service with cash but rather in turn provided other expected services.¹¹ Since there was no livelihood to be made, wealthy aristocratic patrons dominated the practice of advocacy because they had other sufficient sources of income and could devote time to such an activity. Gradually, however, it appears that litigants began to provide, or advocates began to demand, “gifts” for services rendered. By 204 BC legislation was necessary and the Lex Cincia specifically prohibited advocates from accepting gifts from their clients in payment.¹² We cannot be certain when, but it is clear that over time the prohibition became commonly disregarded. Cicero, a successful advocate of the late Republic, was also a very wealthy man, a large part of this wealth having come to him as a direct or indirect result of his forensic abilities — as he proudly avers.¹³

By 17 BC remuneration was so commonly expected and given that legisla­tion was again enacted. The leges Iuliae Iudiciariae ordered that advocates must give their services for free and imposed a quadruple fine.¹⁴ How long this pro­hibition was enforced we do not know, but its effectiveness was certainly short-lived. The practice of exchanging payment continued and, following the disturbing suicide of an eques, Samius, who after paying his advocate Suillius 400,000 sesterces found him to be in collusion with the other side, the matter of pay for advocacy was again raised in the senate in 47.

Advocacy could now bring open financial rewards. Martial tells us of two occasions when he was encouraged to take up advocacy specifically for the financial benefits. In one instance, Martial asks his friend Gallus for a loan of 20,000 sesterces; Gallus, wealthy and fond of his money, tells Martial that he could easily make that sum and much more if he took up advocacy, but Martial is hardly convinced.¹⁶ Later, however, Martial gives further thought to the suggestion and tells us that if he entered advocacy his provincial con­nections with Spain would bring him casks of Spanish olive oil and fill his pocket with money.¹⁷

Many advocates, however, still did not comply with the new law. Quintilian describes unscrupulous advocates who continued to bargain with prospective clients over the fee before accepting a case, so as to capitalize on litigants’ desperation.¹⁸ By 105 it appears that non-conformance to the law had become the norm. When Nepos, taking his duties as a praetor of that year very seriously, issued a warning from his own court that he would strictly enforce Claudius’ ruling, the public was critical of his effort: “Invenimus, qui curva corrigeret! Quid? ante hunc praetores non fuerunt? quis autem hic est, qui emendet publicos mores?", “We have found someone who will straighten the crooked, but, were there no praetors before him? Who is this man to correct the community’s morals?”¹⁹ These comments certainly suggest that Claudius' law had made little practical impact.²⁰

The numerous attempts of both the assemblies and later the senate and emperor to stamp out the taking of pay by advocates surely is indicative of something running far deeper than our extant sources illustrate.

Altruism and an idealistic notion that justice must be accessible to all were not at the root of the roughly 250 years of inhibiting legislation. That money was not to be exchanged did not preclude other benefits for an advocate, and consideration of such gains thus takes us a step closer to determining the motives behind the legislation.

During the early to mid-republican period, as I have indicated, advocates who argued cases for their clients were compensated, though rarely in mone­tary form. Instead, they received what has been termed “symbolic capital” — the litigant’s gratitude toward the advocate. Such indebtedness was of value since the litigant became obliged to accompany the advocate in public, per­haps, or to do a favor in return. This type of payment still existed in the imperial period; Quintilian comments on the creation of gratitude by aiding someone in court, and he also mentions the principle that such favors will be returned.²¹ Apparently clients often gave their advocates token gifts as indica­tions of their appreciation. Martial mentions various rewards that we can assume were typical — “birthday gifts” — that grateful clients gave to Claudius Restitutus, a senatorial advocate:

certent muneribus beatiores:

Agrippae tumidus negotiator Cadmi municipes ferat lacernas; pugnorum reus ebriaeque noctis cenatoria mittat advocato;

infamata virum puella vicit,

veros sardonychas, sed ipsa tradat; mirator veterum senex avorum donet Phidiaci toreuma caeli; venator leporem, colonus haedum, piscator ferat aequorum rapinas.

[L]et the richer people compete with their gifts. Let Agrippa’s pompous businessman bring cloaks, fellow townspeople of Cadmus. Let the defendant charged with brawling and a drunken night send dinner suits for his advocate.

defamed young woman won her case against her husband?

Let her hand over genuine sardonyxes, but in person. Let the old admirer of our ancient ancestors give embossed work of Phidias' chisel. Let the hunter bring a hare, the farmer a kid, the fisherman the plunder of the seas.²²

We also find advocates, lower in social standing than Restitutus, receiving token gifts at the time of the Saturnalia festival from people they had repre­sented. In Martial's epigrams the advocate Sabellus received half a peck of flour, Lucanian sausages, a little box too small to hold a few olives, as well as a napkin as gifts from his clients.²³ These hardly make an impressive display, and while Martial may be attempting to exaggerate their inadequacy, the implied cultural practice of giving token gifts for such services is certain.

Another form of payment valued by advocates was the creation or improve­ment of their public reputation. Like the litigant, an advocate could, by successfully attacking those of higher status through litigation, increase his own standing.²⁴ This was particularly important to those striving for a polit­ical career and the consulship. Pliny is but one example of someone who undertook prosecutions in his younger days to advance his career.²⁵ Even advocates of lesser status than Pliny could hope for increased respectability.

The formation and solidification of friendship were a further favorable out­come of a case, and could be considered a form of payment. The evidence for this is far more widespread among advocates whom we know to have been upper-class. It is difficult to determine whether the formation of such a rela­tionship was a sole motivation for undertaking cases among the lower classes as well; this issue will be discussed in more detail when we look at advocates' choice of cases.

While gifts perhaps were originally seen as supplementary token rewards for good service, at some point individuals began to use financial remuneration as the sole form of payment. This shift probably originated within the patron­age system itself. We cannot assume that during the Republic everyone had a patron to turn to for adequate legal assistance. In all likelihood, such individ­uals approached other patrons, with appropriate experience, and offered to compensate them for their aid. At some point — when, we cannot be sure — a split occurred in the patronage system. Crook calls it a “�?status to contract' direction of movement” and argues that it affected many aspects of Roman society. The traditional relationship continued between a patron and his clients; however, in a parallel development others began to offer the same ser­vices for a fee, and with no patronage relationship between the two parties.²⁶

The opportunity to be paid for providing representation meant that those who needed an income could now enter this profession. Advocacy was a par­ticularly rewarding area for such individuals because it still retained a high level of respectability due to its upper-class origins. Also, it did not require a great initial investment such as one would need, for example, to buy a ship for overseas trading.²⁷ If one was articulate, ambitious, and could think on one's feet, success was possible.²⁸ The introduction of pay was central to the exten­sion of this profession beyond the independently wealthy classes. Claudius' decision to impose a fee ceiling, so to speak, rather than outlaw payment for advocacy unequivocally indicates his recognition of smaller-scale advocates in Rome for whom the monetary income from advocacy was essential to their livelihood.

It is difficult to gain a full understanding of how much a non-aristocratic advocate might advance his social status through this profession. How far could he go? The evidence is incomplete, although naturally we hear of the extremes. According to Martial, Cyperus went from a baker's wages to com­manding 200,000 sesterces per case.²⁹ There were “new men” who went from advocate to consul, though it is difficult to determine how much of a role advocacy played in their ascent.³⁰ Juvenal discusses the rise from teacher to consul of Quintilian, whose work as advocate clearly did play a substantial role.³¹ We must assume there were considerable numbers of men who made steady, but likely not so remarkable, advancement.

The gradual professionalization of advocacy, as well as the social advance­ment of many individuals who entered the occupation, provoked reaction from conservatives. Juvenal, our best source for information on advocates of the lower classes, also provides one of the most emotional reactions against this development. Juvenal has been called by Green “a stickler for respectable ancient convention”.³² His lifetime, however, saw the continual redefinition of “convention” in practically all areas of Roman society. Juvenal's main theme in his satires is the effect of the newly monied upon the traditional class structure. But he does not restrict his attacks to advocacy alone since in his mind it was not the only method through which people of lower birth were reaching positions of high status; he equally condemns legacy hunters, foreigners in all professions, as well as the rising freedman class, focusing mostly on those individuals of foreign extraction. Juvenal most strenuously condemns those who attempt to step beyond their “proper” position or role. That advocates become objects of his hostility is significant for this study, in that this antagonism affirms the great extent to which advocacy was per­ceived as a channel for social advancement.

Juvenal particularly betrays his hostility toward upstart advocates through two themes. First, lawyers of principle are purportedly being ousted by cheap, flashy shysters. Second — more interesting to us and certainly more distressing to him — Juvenal must admit that first-class advocates can now be found in the “ima plebe”, “common herd”.³³ It was bad enough that foreign, lowborn advocates were replacing true nobles, but some even had the temerity to excel at it! In his seventh satire Juvenal describes a poor advocate trying to make ends meet. Basilus wants a glamorous case instead of the routine ones that comprise his living, but Juvenal is quick to add, “quis bene dicentem Basilum ferat?”, “who could bear Basilus being eloquent?”³⁴ For Juvenal, only men of appropriate background and good education were supposed to be good advo­cates, while anyone else went against the grain of proper Roman society.

Juvenal was certainly not alone in his elitism. In fact, other evidence sug­gests that he reflects a widespread upper-class sentiment dating back to the early first century. The reaction of many to Titus Labienus, a contemporary of Augustus, is revealing.³⁵ Seneca the Elder describes him:

Adfectabat enim censorium supercilium, cum alius animo esset: magnus orator, qui multa impedimenta eluctatus ad famam ingeni confitentibus magis hominibus pervenerat quam volentibus. Summa egestas erat, summa infamia, summum odium. Magna autem debet esse eloquentia quae invitis placeat...

Indeed, he pretended to the severity of a censor, though his character was quite other; he was a great orator who had overcome many obstacles to arrive at a reputation for genius which men admitted rather unwillingly. He was very poor, very disreputable, very hated. But that eloquence must be great which pleases even the unwilling....36

A poor man with the ability to be an excellent advocate, Labienus appears to have suffered widespread dislike because he succeeded in spite of his social position. He is not accused of fixing cases, fleecing clients, or prosecuting indiscriminately, yet Seneca says that he was hypocritical and disreputable. What made him so, we are not told, and other sources provide little further information. We know that Labienus undertook the plaintiff's case in the centumviral court case concerning Urbinia's will, against defence counsel Asinius Pollio, a leading advocate of the day; so, Labienus was clearly work­ing among the most prestigious advocates. Interestingly, we also know that in his speech for this case Asinius specifically attacked Labienus, for within a list of the weaknesses of the plaintiff's case Asinius includes the fact that Labienus was the plaintiff's advocate.³⁷ To Asinius' audience his deeper meaning must have been clear, but it is unfortunately lost to us. Perhaps Asinius was implying that Labienus would undertake those types of cases that more respectable advocates avoided. Perhaps the plaintiff's case was baseless, or the plaintiff was a prostitute claiming to be a long-lost sister, or something equally outrageous, and yet still Labienus was willing to take the case. We can only speculate as to the exact meaning of Asinius' statement. Since his speeches for this case circulated following its completion, Asinius likely won.³⁸

Certainly Labienus was not the only advocate disliked by contemporaries, but we see here an example of how advocates who were not part of the nobil­ity of Rome could have their background used against them. Seneca's failure to support his charges against Labienus with anything more specific than the latter's poverty and general notoriety points to baseless or highly subjective criticism, while Asinius' comment shows just how widely such a reputation could circulate.

Conservative hostility towards the social transformation occurring within advocacy during the first and second centuries fired many authors of the period to declare the “decline of oratory”.³⁹ While some modern schol­ars have inferred that there thus were ever-decreasing opportunities for advocates, in his recent work on advocacy Crook has convincingly argued that the arena for emotive advocacy did not shrink at all. Mention is still made of long speeches and slow speakers in the quaestiones perpetuae, the court of the praefectus urbi, the senate, and especially the emperor's court.⁴⁰ It has even been suggested that the suppression of political oratory caused by the establishment of the Principate actually led to an increase in forensic oratory.⁴¹ That advocacy did not disappear is certain. Yet Crook does not return to consider how we handle the various ancient authors who bemoan this alleged regression. They saw a decline; if the profession did not col­lapse, what was in decline?

As we have seen, there was a progressive decrease in the status of those arguing cases. That, in turn, could have been viewed as leading to a decline in the quality of advocates. This is not to deny changes in the style of advocacy.⁴² However, contemporaries — such as Juvenal, with both his xenophobia and his status consciousness — inevitably equated a change in the class composition of advocates with a corresponding change in their overall quality, even if this deterioration was only imagined.

The diverse social status of practising advocates also came to be reflected within the common terminology.⁴³ Over the course of the Republic the orig­inal term, patronus, came to be supplemented by advocatus, and the two were used interchangeably, though patronus was used in particular for defence counsel.⁴⁴ Both terms are found in the writings of Seneca the Elder, Quintilian, Tacitus, Pliny, and others. At some point in the first century another term begins to appear more frequently in the literature — causidicus.⁴5 This term is used most often by Martial and Juvenal, but is also found a few times in Tacitus' Dialogus, Suetonius' Lives, and the letters of Fronto.⁴⁶ While it has been suggested that Juvenal used this term as a contemptuous alterna­tive for advocatus or patronus, this interpretation can be taken one step further.⁴⁷ The examples found in Quintilian, Martial, Juvenal, and Fronto indicate that this specific term was used, rather than the other two possibili­ties, to indicate an advocate of lower status and perhaps (though not necessarily) of mediocre ability. This evolution in vocabulary thus further evinces the changes occurring within first-century advocacy. Quintilian's use of the newer term provides the clearest evidence that social distinctions were being made by the choice of vocabulary:

Non enim forensem quandam instituimus operam nec mercennariam vocem nec, ut asperioribus verbis parcamus, non inutilem sane litium advocatum, quem denique causidicum vulgo vocant, sed virum cum ingenii natura praestantem tum vero tot pulcherrimas artes penitus mente complexum...

I am not seeking to construct some kind of forensic day- labourer, or a mercenary voice, or, so as to refrain from harsher words, an admittedly not un-serviceable advocate, whom they commonly call a causidicus, but [rather] a man [who] not only excels in natural ability but, in truth, has also embraced deeply in his mind all the finest kinds of knowledge....⁴⁸

It comes through very clearly in this passage that Quintilian sees a clear divi­sion between those advocates identified by their origins and career goals, and the types of advocates he wished to see rise again within the profession.

Further proof lies in the fact that causidicus is never used in reference to an advocate who is clearly from a noble family. Martial uses the term when he says that anyone can become an advocate.⁴⁹ He also uses it twice when he speaks of himself and his forensic abilities, or lack thereof.⁵⁰ The increasing variety of advocates entering the profession (Quintilian mentions three broad groups in the passage just quoted) led to a further refinement of the terminol­ogy referring to them. That the term stems from a description of what they did — dicere causas — only reinforces such a connection.

Why such a prolonged, negative reaction? Oratory in all its forms, political, deliberative, and forensic, was one of the defining skills of an upper-class Roman man.⁵¹ During this period of Rome's history, the upper classes were attempting to redefine their political and military powers and roles in relation to the emperor; in these developments they were forced to follow the emperor's lead. The creation of the Principate also meant a questioning of the power associated with specific social classes since new groups were being asked to shoulder greater responsibilities. Advocacy was certainly an area of consider­able social change. Levick has pointed out that during the early Principate several measures were taken “designed to strengthen the existing social struc­ture and keep its strata distinct”.⁵² While many of these measures were initiated by the emperor, some were instead undertaken by members of the established group, who felt free to attempt to exclude the newcomers. The sen­atorial debate in 47 over pay for advocates was likely one such attempt.

Some scholars have argued for a general withdrawal of the upper classes from advocacy during this period, suggesting that the old established group lost the fight and were replaced by new upstarts.⁵³ To respond to such an argu­ment, one must ask how “upper classes” are to be defined. If narrowly, as those of the ancient noble families who could trace their line to the republican period, the argument may be strong since such families suffered significantly in the proscriptions and civil wars of the late Republic. Pliny rejoices at two aristocratic neophytes, Fuscus Salinator and Ummidius Quadratus, arguing a case before the praefectus urbi: “Quid enim aut publice laetius quam clarissimos iuvenes nomen et famam ex studiis petere, aut mihi optatius quam me ad recta tenden­tibus quasi exemplar esse propositum?”, “What could be more pleasing to the community than that very distinguished young men seek name and reputation from eloquence, or more gratifying to me than that in their efforts to become models of upright behavior I was recommended to them as an example?”⁵⁴ Sherwin-White is likely correct to interpret Pliny's statement to mean that by then it was unusual for members of the old families to participate.⁵⁵

However, if we define “upper classes” as those of secure wealth, whose fam­ilies had held public office including the consulship, who were powerful and closely connected to the emperor and other officials, then to say they with­drew is erroneous. In Fronto's day, after Pliny's lifetime, we find members of such an upper class, including Fronto himself, very much involved in the courts. Thus, there was not a withdrawal of the upper classes but rather a transformation of membership within these groups; the old noble families now had to share the field of advocacy with many others whose origins cut a wide swathe across the social hierarchy.

One clear result of this expansion was that conservative Roman nobles lost the courtroom as an exclusive forum for creating and validating their own sta­tus and position before all Roman society. While Pliny was only on the fringes of this noble group, he reflects its exasperation. In his most negative letter concerning the centumviral court he voices his irritation at the audi­ence for liking those who practise the new “corrupt” styles of oratory, fashioned only to please their listeners.⁵⁶ Perhaps his exasperation is height­ened by anger that the audience, in applauding these men, was not playing its proper role of reinforcing the position of the upper-class advocate. The chang­ing form of patronage in the empire played a role as well. With the establishment of the emperor as ultimate patron of all Romans, the lower classes were exchanging their private patrons for a public one, a change that could certainly have altered their view of whom to applaud in the courts. Fewer and fewer ordinary citizens were directly tied to an upper-class advo­cate through patronage, so as members of the audience they could feel freer to give their applause to whoever pleased them.