The boundaries of the subject: the legal order broadly conceived

The purpose of this third section is to persuade the reader (a thoroughly rhetorical activity - or trick - again) that in order to appreciate the place of advocacy properly it is needful to look at the Roman legal order in a broader way than the usual approaches to Roman law encourage.

What is the scope, or thickness, of the interface? Two categories can at once be picked out, of the first of which little need be said because it is massively discussed in the literature; it is the second that is entitled to more consideration than it has received. The first is the criminal law, the second what, for want of a better word, will be called â€?administrative law’.⁷⁰

In the criminal law we have the most obvious interface of law and politics, since it is bound to impinge frequently on public policy. That was all the more so in the Roman case, in that the statutory criminal law of the quaestiones perpdtuae arose out of public policy considerations - repetundae, ambitus, peculatus and so on. Most obvious of all is maiestas·, it is doubtful whether a consistent jurisprudential account can be given of all that went on in that department of the criminal law,⁷¹ because in that sphere the emperors were obliged by their position to mix law and politics. But the whole topic has been extensively studied and need not be enlarged on further. For the present book what is important is that the criminal law was the arena of advocacy par excellence, in the Republic, at all events.

Administrative law has been much less studied. Schulz noted the eventual, but late, â€?birth of a science of administrative law’.⁷³ and illustrated the lack of interest of the Republican jurists in it by a quotation from Cicero’s pro Balbo.¹⁴ â€?Scaevola the Augur, when he was consulted about lands pledged to the state - and he was a very great lawyer - used mostly to direct his clients to Furius and Cascellius, the authorities on pledged land; and when it comes to water rights on my property at Tusculum I

⁶⁹ The scholar who saw that need most, and did much exploratory work, was the late J.H. Oliver: see the items under his name in the Bibliography, below.

⁷⁰ Following the German Verwaltungsrecht and modern usage.

⁷¹ Pace 7 Bauman: see the review in Tijdschrift voor Rechtsgeschiedenis 44 (1976), 167-8.

⁷² FIRA I 7, 9-11; and for a new example, from the early days of the quaestio, see the Samian inscription IGRR IV 968 as quoted and commented on by 71 Eilers.

⁷³ 243 Schulz, 139.

⁷⁴ 242 Schulz, 29; Cic.pro Balb. 45.

consult Marcus Tugio rather than Gaius Aquilius.’ In the modern age the layman probably - and pardonably - thinks of his own relationship to the law a good deal in terms of fines and taxes and licences and pensions: notoriously that sort of law is the fastest growing-point. But historians have not much looked to see to what extent the same might have been true in the Roman Empire. That lack has been remedied recently, at least partly, by studies by the late G. Boulvert and his pupils;^[113] and through the role of aduocatus fisci one can descry the importance of advocacy in that branch of the law. But under the umbrella of administrative law must be brought also something else that has received even less discussion and has an even more obvious and direct connexion with the political order: the rights, privileges and duties of the local communities of the Empire, the poleis and ethne, in relation to the central government, to each other, and to their own citizens.^[114]

The �poleis’ and �ethne’, cities and other local communities

The chapter in Millar’s Emperor and the Roman World entitled �The Cities: Requests and Beneficia’^[115] is valuable; but an ancient source with which to begin is Philostratus’ Lives of the Sophists,^[116] where it emerges that some of those celebrated epideictic performers were also formidable forensic prac­titioners.

The first story concerns the great Polemo.^[118] His city, Smyrna, erizen hyper ton naon kai ton ep’autois dikaion �was in dispute on behalf of its temples and their rights’, and had chosen him, though a very old man, to be its syndikos, its legal spokesman, to go to Rome. But he died, and other representatives carried on. They began to make a hash of their case in the imperial dikasterion, so the emperor said �Did Polemo leave a written brief for this one?’, and adjourned the case for them to go and find out; and eventually it was found, and read out at a renewed hearing, and the emperor ruled in Smyrna’s favour on the basis of it. Similarly, the sophist Heliodorus was prodikos, spokesman, for his native city before Caracalla (we are not told what about), and so impressed that emperor that he gave him a position of aduocatus fisci, hos epitedeioteron dikasteriois kai dikais �as being particularly well fitted for law-courts and litigation’.^[119]

Philostratus has numerous further anecdotes,^[120] and they encourage us to look at the epigraphical evidence for syndikoi poleon, synegoroi poleon, aduocati publici and so on, who engaged in speaking on behalf of public bodies.^[121] Here are some examples: '

ILS 6680, the long honorific inscription to L. Fabius Seuerus of Tergeste: �From his earliest youth, in service to his native city, he has grown in dignity and eloquence: many splendid public suits before the emperor Antoninus Augustus Pius he has undertaken, carried through and won, without charge to municipal funds... The study of civil law, in which, though so young, he is a master, and the rank of senator, he sought in order to enhance the dignity of his native city and keep it safe from all injuries.

OGIS 567, about M. Gauius Gallicus of Antalya, �constant advocate and pleader (synegoron kai proegoron) for his native city... having spoken many cases for his native city and for many other cities before the emperors and governors..

Ephemeris Epigraphica N 525, a man from a tiny place in Proconsular Africa, �defender of his municipality in public causes’.

IGRR IV 618, M. Aristonikos Timokrates of Temenothyrae, �chosen advocate before the tribunals of the governors (or (?) emperors) on behalf of his ethnos’.

AE 1971, 455, an Ephesian whose name is lost, �delegate and advocate (presbeusanta kai syndikesanta} before the late emperors Severus and Antoninus at the palace in Rome several times and to Britain and Upper Germany, travelling even to Granian Apollo on behalf of the city and to Sirmium and Nicomedia and Antioch, and reaching even Mesopotamia more than once in pursuit of his causes and winning all of them... advocate also on behalf of the whole ethnos of Asia’.

AE 1962, 288, a letter of the emperor Titus to the Muniguenses, another tiny community, this time in Spain: �Since you lodged an appeal to escape paying the money you owed to Seruilius Pollio under the judgment of Sempronius Fuscus, the fine for unjustified appeal ought to be exacted from you. But I have preferred to consult my indulgence rather than your delinquency, and have decided to remit the 50,000 sesterces in view of the penury of public funds that you have pleaded’ (a large sum, probably uncollectable: the plea no doubt formed a purple passage in the speech of their advocate).^[122]

AE 1969/70, 635, from near Cnossos in Crete, where there were, astonishingly, lands owned by the municipality of Capua: Tn the tenth consulship of the emperor Domitian Caesar, as between Colonia Flauia Augusta Felix Capua and Plotius Plebeius, by the decision of Titus Imperator Augustus and in accordance with a decision of the Colony of Capua, by compromise of the two parties, these boundaries have been placed by P.

Those texts demonstrate how issues of public and private law and disputes between cities, between them and the government, and between them and their own citizens, were intertwined in the daily affairs of the empire. Cities would send delegations to accuse de repetundis,^[123] to ask for titles^{[124] [125] or money or other direct gifts, to plead for release from this or that tax, about boundaries, the right to raise internal revenues, the fulfilment of pollicitationes81 by their own citizens or the right to receive legacies from them.[126] Sometimes the delegation just brought a petition, but sometimes litigation was involved, for, as Millar remarks,[127] �we cannot rigidly distinguish between the Emperor as benefactor and as judge’, nor can we always �distinguish a criminal trial from the resolution of a dispute’.[128] A case in point is Josephus’ account of the sessions of the imperial consilium held in 4 BC to settle the affairs of Palestine after the death of Herod:[129] there was a judicial element involved, although it primarily concerned getting a political settlement. Or we can turn again to Philostratus, and his tale of how the sophist Skopelianos of Klazomenai, who had undertaken many basileiai presbeiai, delegations to the emperors, persuaded Domitian, on behalf of the whole province of Asia �and not only the Smyrnaeans’ to rescind the government’s prohibition against planting vines.[130]}

Or consider the correspondence of Pliny with Trajan. If Trajan’s replies had been found not in the collection of Pliny’s letters but as imperial rescripts in the Code, Roman lawyers might have noticed what a mélange they are of private law, municipal rules, public policy, and so on. They include municipal expenditures; the military establishment (but that includes a potential criminal law problem about slaves enrolled in the army); local taxation; the effects of criminal penalties on civil status; the rights of cities to have fire-brigades and friendly societies (eranoi); the interpretation of the lex Pompeia governing city constitutions; the application of ius sacrum in a province; and law-of-persons questions about the status of foundlings (threptoi).

Fiscal law

The standard books on Roman private law treat very briefly the subject of the fiscus, the imperial treasury, as a bearer of private rights and duties: in Kaser’s Römisches Privatrecht, for example, it is to be found under â€?Corporations’, along with the municipia and collegia?³ That juxtaposition is actually very illuminating, because it helps to make clear that the treasury⁹⁴ was treated to a surprising extent as a private-law entity.⁹⁵ The story begins - for us - with Tacitus’ grudging admission about the emperor Tiberius⁹⁶ that si quando cum priuatis disceptaret, forum et ius â€?if ever he had disputes with members of the public (he had recourse to) the courts and the law’, by which Tacitus meant, as his editor Furneaux explained, that â€?all fiscal claims were prosecuted in the ordinary courts’. It goes on with Pliny’s praise of the emperor Trajan:⁹⁷ â€?To your agent and your procurator it is said “Come into court, follow to the tribunal”.... The lot and the urn determine who shall be judge for the treasury: one is permitted to reject, to say “This man I will not have....” And, especially to your credit be it said, the treasury is often defeated.’ As anybody would expect, the treasury acquired some legal privileges as against the ordinary private creditor: that of being first creditor always and that of distraining on property owed to it even when in the hands of bona fide third parties.⁹⁸ But that does not diminish the fact that its pretensions were litigable against and that it had to litigate to secure them: a striking fact is the employment by the treasury of persons called aduocati fisci?⁹

Aduocati fisci were employed not only centrally but also in

⁹³141 Kaser, §72.

⁹⁴ It would be irrelevant here to go into the relationship of aerarium, fiscus, patrimonium and res priuata: by â€?treasury’ is simply meant the state’s financial administration.

⁹⁵ 183 Millar, 1; 140 Kaser, 355-7; Pliny, Ep. IV 12, 3-4.

⁹⁶ Tac. Ann. IV 6.

⁹⁷ Pliny, Pan. 36.

⁹⁸ 183 Millar, 33.

⁹⁹ 4 Avon. See, again, Pliny, Ep. IV 12, 3-4. Epigraphy: p. 152, below. individual provinces and particular branches of the fiscal department. The job went to a young advocate as a first rung on the administrative ladder, and oratorical powers were speci­fically required in its incumbents. Philostratus, once again, provides chapter and verse. Quirinus of Nicomedia was erromenos kai sphodros kai kataseisai deinos akroatou ota â€?vigorous and vehement and an adept at shaking the ears of the hearer’ and a good improviser; and so, being prosphyesteros tais kategoriais â€?particularly suitable for prosecutions’, he was made an aduocatus fisci by the emperor;^[131] and Heliodorus â€?the Arab’, mentioned before, was given a job as aduocatus fisci because he had a talent for law-court appearances.^[132] Presumably the need for a good orator in the job was to counter the powerful men the private parties on the opposite side might put up.

Some other administrative fields

Schulz listed some:^[133] the tessera frumentaria, for example, or ticket of entitlement to corn distributions, occasionally appears in the Digest because it was a res that could be owned and bequeathed;^[134] aqueducts and other public property could be involved in questions about expropriation of adjoining land, about leases, and so on.^[135] There were rules of public law limiting the right to demolish private structures^[136] and imposing duties with respect to uiae publicae and places of burial. But even those items are only the tip of an iceberg, another piece of which can be glimpsed in the least-discussed of the handbooks of Frontinus, de controuersiis agrorum,^[137] which shows what a lot of litigation was generated by land, with its questions of ownership, boundaries and taxation. Much of that, naturally, was ordinary private law; but when Frontinus states^[138] that â€?There are fifteen types of controuersia’, and lists them, the mixture of public, administrative, sacred and private law is apparent. They include de subseciuis (uncadastrated land), about which, says Frontinus, maximae controuersiae agitantur,¹⁰⁸ de locis publicis (public land), â€?when somebody has taken possession of land that was never assigned or purchased’,¹⁰⁹ and de locis sacris et religiosis,¹¹⁰ about which, again, controuersiae plurimae nascuntur. And further on, discussing in detail the controuersia de modo (which is â€?area’), Frontinus remarks that â€?that kind of dispute often arises between municipalities: coloniae often have such disputes with other coloniae or municipia or the estates of Caesar or private landowners’.¹¹¹ As for de iure territorii, â€?between municipalities and private persons such disputes do not often occur in Italy, but they do so frequently in the provinces, especially in Africa, where private owners have estates as large as the territories of municipalities’.¹¹²

Formal legal sources

Taking the above into account, we may turn to examine what the Digest and the Code, etc., have to offer. In the Digest, Book 48 is the start of the â€?Libri Terribiles’, the Titles, as their nickname implies, about the criminal law. Title 20 is de bonis damnatorum â€?on the property of the condemned’, and that subject at once has repercussions on the private law, as to confiscation of the dowries of women convicted of crimes, and how the treasury is to claim, or the effects of banishment on the condition of matrimony. Book 49, Title 14 (somewhat less â€?terrible’) is de iure fisci â€?treasury law’; much of its contents derives from a work by the Severan jurist, Callistratus, who wrote, in fact, two treatises relevant to our theme: de iure fisci et populi libri IV¹¹³ and de cognitionibus libri VI, the latter worth perusing in the Palingenesia to note its mixture of topics.¹¹⁴ As for the Justinian Code, Book 10 similarly has a number of Titles,

¹⁰⁸ Ibid. 53.

¹⁰⁹ Ibid. 20.

¹¹⁰ Ibid. 22.

¹¹¹ Ibid. 46.

¹¹² Ibid. 52-3.

¹¹³ Also to be taken into account are Book 50, Titles 1-12, especially Title 7 de legationibus.

¹¹⁴ Lenel, Palingenesia I, cols. 81-94. with rescripts not all of terribly late date (that is, there are a reasonable number of Severan ones), that deal with treasury law, and another long set, beginning with de incolis â€?concerning residents who are not local citizens’, that deal with munera, local obligations, and the endlessly-litigated subject of exemp­tion from them.^[139] To take, then, the Severan period only (which is when concern with administrative law begins to make a real impact), the Code and the Digest exhibit just the same mĂ©lange of private, public constitutional, criminal, sacred, military, municipal and fiscal law as does the correspondence of Pliny and Trajan.^[140]

Also of the same diversity are the Apokrimata,^[141] the set of thirteen imperial decisions promulgated on 14 March 200 AD, while Septimius Severus was visiting Egypt. In the case of two of the decisions it is impossible to tell what their subject was; but the subjects of the others are as follows: No. 1, remission of tax arrears; No. 4, pure private law, about a mortgage; No. 5, pure private law, about women borrowing and paying money; No. 6, the census; Nos. 7 and 8, pure private law of succession; No. 9, liturgies; No. 10, adaeratio, the commuting of tax payments from kind to money; No. 11, alleged criminal actions (unspecified) by officials and tax-farmers; Nos. 12 and 13, pure private law of succession and guardianship, respectively.^[142] Katzoff, on the court of the Prefect of Egypt,^[143] writes as follows: �Even a cursory glance suffices to give an impression of the variety of matters treated by edict... matters of religion, fiscal administration, general administration, measures to check governmental abuse, criminal law, and private law and procedure.’ And the relation of advocacy to all those activities is clinched by another (first-century) papyrus:^[144] �Copy of court record of Claudius Androtimus... Imperator Caesar Domitian Augustus... DATE. Theon and Heraclides, publicani of the purchase tax, versus Horus and Apynchis of the village of Socnopaeus in the Arsinoite nome. The party of Theon and Heraclides having spoken through Apollonius, advocate, that they demand the tax according to the schedule... only those of Socnopaeus are trying to achieve non-payment, not wishing to pay the scheduled tax on their purchases... The party of Apynchis having replied through Hermaeus, advocate, that the village is dedicated to the god and is not taxable, and Spotous, the father of Theon the publicanus, has paid no tax on what he bought in the village, and, what is more, Hermias the governor of the nome on hearing the case had given his judgment to Hermias, advocate, thus, “They have not given and they shall not now give...”.’

The life of the law

An enormous territory has now been, if still only cursorily, surveyed. If we are to adhere to the subject of the role of advocacy in the Roman legal order, how much of that territory is out of bounds? The answer should be �None’, although (and yet in part because) there is a �soft shoulder’ rather than a sharp division between the Roman legal, political and administrative orders. Those whose study is the substantive Roman law will insist on drawing narrower boundaries. For that purpose a procedural criterion is used: do things come before a court for a judgment? If so, they are law, if not, not. Another way in which essentially the same point is made is to distinguish between a verdict and a decision (an Urteil and an Entscheidungf. in the former case we have law, in the latter other-than-law. But as soon as the object of study is not the substantive law but the �life of the law’ and its place in the total society such boundaries are, at any rate as regards that of the Roman period, unacceptably narrow. For that, there is, among many, one particular reason. The ordo iudiciorum or �way the courts worked’ of the Republic and earliest Principate gave way, though gradually, in Rome to the legal procedure of the cognitio extra ordinem, whose judges were the emperor and his delegates such as the great praefecti·, the magistrates of the prouinciae Caesaris were all in principle delegates of the emperor, and so from the start not bound to the ordo iudiciorum, and the prouinciae populi Romani in the end followed the same path. Cognitio extra ordinem had no need to maintain such boundaries between law, administration and politics as had existed in the previous procedural system. And when, in the emperor, the whole Roman world had a final decision-maker in every field,^[145] whether public policy or administration or law, whose role in relation to the total society was that delineated by Millar,^[146] so much the less reason was there for keeping those spheres apart, or likelihood that they would be kept apart. So much the less reason is there, then, in a study of the �life of the law’ in the Roman period, to disallow a large part of the evidence.