The cases of advocates

I have demonstrated that advocates of the first century came from diverse classes and entered the profession with equally diverse goals. Inevitably, the cases these advocates undertook and the motives driving them to accept or reject a specific case also differed widely.

the Elder tells us that on any given day Cassius Severus only would argue two private cases, or one public case. Even the struggling advocates who hung around the fora hoping for business could have busy days. Martial tells his friend not to bother Pompeius Auctus until after the tenth hour because he will be busy with cases until then.⁵⁷ Reconstructing the caseloads of a few upper­class advocates can be done with some success. What follows are the reconstructed caseloads of three advocates to whom a number of cases can be confidently assigned.⁵⁸ Through such examination, an impression, if somewhat limited, can be gained of what types of cases appeared within an upper-class advocate’s dossier. Discovering what types of cases preoccupied individual lower-class advocates is far more difficult. A few features of these advocates’ practices can be identified, however, and warrant consideration. Using these caseloads as a springboard will then enable a broader discussion of the factors advocates weighed to decide whether to undertake a case or refuse it.

C. Asinius Pollio

C. Asinius Pollio is the earliest advocate living into the imperial period to whom we can assign a substantial number of cases.⁵⁹ In approximately 55 BC, at the age of 21, he entered his only accusation, a case against C. Cato.⁶⁰ The nature of the dispute is unknown. This may have been Asinius’ first large case, undertaken in an effort to launch his career as an advocate.

Cn. Domitius Afer

We also have some knowledge of specific cases undertaken by Cn. Domitius Afer, including three accusations.⁶⁸ While praetor in 26 he successfully accused Claudia Pulchra, a granddaughter of Augustus' sister and second cousin to Agrippina, and her lover Furnius in the senate on a clutch of charges, including unchastity, adultery, and treason against the emperor.

Tacitus assigns the role of defender to Afer in subsequent years, but gives no further information.⁷² From other sources we know of five clients defended by Afer. He represented two women: Cloatilla, the wife of a rebel involved in a revolt against Claudius in 42, likely on treason charges in the senate; and one Laelia, on unknown charges.⁷³ A few passages from his defense for Cloatilla have survived, suggesting he won the case.⁷⁴ Alongside two other advocates, Crispus Passienus and Decimus Laelius, Afer spoke on behalf of Volusenus Catulus, of whom nothing is known beyond his con­sular rank and involvement in a public restoration project commemorated in an inscription.⁷⁵ The nature of the case is equally unknown. Conversely, on one occasion Afer defended an unknown client's free status.⁷⁶ While the evidence is somewhat unreliable, it appears he also once represented a com­munity, the people of Augusta Taurinorum.⁷⁷ Pliny tells us that Afer spoke before the centumviral court at least once when Quintilian was present. Again, we do not know the nature of the case. The tone of Quintilian's story suggests that speaking in this court was for Afer a regular event.⁷⁸ While we hear of many cases in which Afer was involved, we know the outcomes of surprisingly few.

M. Cornelius Fronto

While the cases of Asinius Pollio and Domitius Afer demonstrate a fair vari­ety, the known caseload of M.

Certainly the most controversial case (for modern scholars) involved Herodes Atticus — an Athenian senator and friend of Hadrian, Antoninus Pius, and Marcus Aurelius — and possibly one Demostratus. Although unable to confidently identify the actual litigants in this case, we can propose that Fronto represented either the city of Athens or Demostratus, an Athenian citizen.⁸⁰ The outcome of the case is not known.⁸¹ We are aware of three cases in which Fronto represented individuals in court.⁸² Sometime in the 120s or 130s, he represented an unknown client in the court of the praefectus praetorio Marcius Turbo, a skilled general and loyal confidante of Hadrian.⁸³ The nature of the case is not stated, but its appearance before the praefectus praetorio, suggests it origi­nated outside Rome.⁸⁴ Apparently, shortly before 143 Fronto also represented an heir in a case involving the will of a testator who lived in Asia.⁸⁵ This matter was apparently referred by the proconsul to the emperor's court, where Fronto spoke.⁸⁶ He himself identifies one of his long-term clients. In a letter dated to between 153 and 156, commending Saenius Pompeianus to Marcus Aurelius, he states that he has had a steady amount of litigation provided to him by Pompeianus ever since he took up the contract for farming the taxes in Africa.⁸⁷ He does not describe the details of this litigation, but we can assume that it included, among other things, possibly legitimate complaints of overtaxation.⁸⁸ The normal location for such cases would have been in a praetor's court.⁸⁹

Fronto also undertook cases on behalf of provinces.

Fronto perhaps acted on behalf of communities, though the evidence is not solid. A late author attributes to Fronto a speech entitled Pro Nucerinis, a com­munity not far from Pompeii.⁹⁴ The lateness of the source suggests that it may be a forgery; however, as Champlin notes, Fronto did have a villa at nearby Surrentum and the Nucerians were believed to have colonized Fronto's north-African hometown of Cirta.⁹⁵ Another late source, the grammarian Charisius, mentions a further speech, Pro Ptolemensibus, which perhaps refers to the city in the province of Cyrene.⁹⁶ Such community names indicate that Fronto's reputation as a defence advocate extended throughout Italy and across the Mediterranean.

This brief glance at the known legal activities of three influential advocates ranging in date from the earliest years of the Principate to the mid-second cen­tury provides a stable paradigm of the types of cases that advocates of high social standing undertook.

The cases of advocates not of the upper classes

To a degree, any discussion of cases in the senate or the centumviral court, as well as of clients such as governors or provincial communities, assumes that the involved advocate was of a certain standing. While we cannot state with certainty that only advocates of specific classes represented litigants of certain types, the structure of Roman society suggests that such norms existed. Litigants of obvious aristocratic background likely sought representation by advocates of like standing. Far less common in the sources, yet equally unre­markable, are advocates of higher social standing representing litigants of lesser status. The professions of the clients of Restitutus, the aristocratic advocate whom Martial tells us received various gifts, suggest that their sta­tus was inferior to his. However, that the defamed woman and the brawler were able to give quite expensive gifts suggests they were of some wealth.

If sources of information on advocates of higher social standing are limited, the evidence all but disappears when one attempts to identify the cases that advocates of lesser status, in search of wages and a livelihood, were taking. Yet, while there was a high concentration of legal activity among the upper classes (since they had both the means and the time to resolve issues in the courts) the legal activities engaged in by the rest of the population still must have far exceeded the upper-class numbers, solely due to the population ratio. Horace comments that an advocate of middle rank still had value.

... Consultus iuris et actor

causarum mediocris abest virtute diserti

Messallae, nec scit quantum Cascellius Aulus,

sed tamen in pretio est...

A jurist and average advocate is wanting in skill next to eloquent Messalla, nor does he know as much as Aulus Cascellius, but nevertheless he does have value....⁹⁷

Unfortunately, Horace is very much the exception in mentioning that type of advocate. The “average” so seldom made it into the sources.

Juvenal's seventh satire is one of our best resources for the study of the lower-status advocate. However, when examined for specific cases, the piece supplies surprisingly few. We hear solely of two possible cases: an advocate dealing with a case in which someone's status is being contested is approached by a prospective client who asks him to take on another case involving a bad debt.⁹⁸ Money and citizenship status — these certainly cor­respond to what were likely to be some of the greatest issues of concern for the lower sections of Roman society, and Juvenal's inclusion of them as examples underlines their frequency. We gain the sense from Juvenal's description of a downtrodden advocate, Basilus, that a dull, repetitive case­load was all too common:

... ideo conducta Paulus agebat

sardonyche, atque ideo pluris quam Gallus agebat, quam Basilus. rara in tenui facundia panno.

quando licet Basilo flentem producere matrem?

quis bene dicentem Basilum ferat?

... so Paulus was renting a sardonyx [ring] and so he made more than Gallus, more than Basilus. Eloquence rarely goes with a cheap garment. When is it possible for Basilus to produce a weeping mother? Who could bear Basilus being eloquent?⁹⁹

Likely there was a link between specific courts and the average status of the advocates who normally appeared in them, though to what extent we cannot identify. Quintilian certainly considered private litigation as a whole (except­ing, of course, the cases of the centumviral court) as “small beer”, to use Crook's phrase.¹⁰⁰ We can tentatively identify one or two of these courts. Recalling the various vadimonia documents that recorded diverse hearings that came to Rome from the Naples region, we must wonder whether these individuals, who do not appear to have been particularly wealthy, retained advocates at home who then accompanied them to Rome, waited with them for the case to be heard, and then returned home with them. This sequence of events seems impractical as well as expensive, since the advocate would have been “on the clock”, so to speak, the entire time. Martial, however, provides an alternative course of action and at the same time reveals how at least a few advocates made their living in Rome. In his seventh book of epigrams he describes Pompeius Auctus:

Mercari nostras si te piget, Urbice, nugas

et lasciva tamen carmina nosse libet,

Pompeium quaeres — et nosti forsitan — Auctum;

Ultoris prima Martis in aede sedet.

iure madens varioque togae limatus in usu non lector meus hic, Urbice, sed liber est.

hunc licet a decuma — neque enim satis ante vacabit — sollicites...

If it annoys you to buy my trifles, Urbicus, and nevertheless you want to know my wanton verses, seek out (and perhaps you know him) Pompeius Auctus. He sits at the entrance of Mars the Avenger's temple. Steeped in the law and having perfected the various uses of the gown, this man is not my reader, Urbicus, he is my book.

You may solicit him from the tenth hour onward (he does not have enough free time before that)....¹⁰¹

What more efficient way of serving a need? In this forum, to which many cases initiated outside of Rome were first referred, numerous litigants arrived — most likely without representation. Here we find Pompeius Auctus, an advocate expert in all forms of the law, for hire. For an advocate in search of work, this location would have been ideal. There he could offer his services to incoming litigants who might be in need of an advocate at short notice. Once the two parties had executed the vadimonium, they then likely approached the praetor's court to set a time for their case. Depending on the praetor's sched­ule, the case might be heard at once or be scheduled for several days, or weeks, later. Serving these litigants was also a good business. Martial tells his friend to forget about trying to catch Pompeius until after the normal court day is complete. We have no way of determining the total number of cases coming before the praetor urbanus and peregrinus. However, if Pompeius was this busy, it is likely that the numbers were substantial enough to provide an adequate living for a number of enterprising advocates.

For those with some connections to an upper-class advocate, either through patronage or some other tie, the potential was there to serve as an assistant advocate. Quintilian criticises some advocates who, having given the opening speech for their cases, promptly abandon the court, leaving the debate portion for others to undertake. Quintilian describes these assistants as “litigatoribus imperitis ac saepe pullatae turbae", “pleaders [who are] inexperi­enced and often of the common throng”.¹⁰² How widely available this sort of assistantship was we cannot know, but the very possibility of such associa­tions is informative.

While identification of most of the cases undertaken by non-aristocratic advocates is not possible, advocacy clearly was seen as a profession that promised financial reward and social advancement. Advocates such as Eprius Marcellus who rose from humble beginnings to positions of great wealth and power or, less spectacularly, the baker Cyperus who came to make 200,000 as an advocate, did much to sell the profession to others hoping to make it big.¹⁰³ Advocacy was also viewed as a means by which a new arrival to the city could gain a toehold in Roman society. Martial speaks of two men who are moving to Rome. One has already planned to become an advocate while the other, Fabianus, appears undecided on his course of action.¹⁰⁴ Martial runs through the list of “careers” newcomers typically took up in an effort to get rich quickly. He could be a pimp, or a professional hanger-on, or under­take other unsavoury jobs; however, third on the list is the profession of advocacy. Martial continues with the remark that Fabianus is ill-equipped for any of these careers, for he is too honest; furthermore, as is common in careers that hold out the promise of quick wealth, the reality may be other­wise — the pay could be low or the litigant hard to find. Martial reminds the man planning to become an advocate in Rome of two men they both knew who had become advocates but could not cover their rent. We also hear, again from Martial, of an advocate who supplemented his advocacy career by driving mules.¹⁰⁵

Advocacy clearly held out the prospect that one could come to Rome and, without much training, have the opportunity to make it big. Enough men achieved success for such a belief to develop. But, as the adage goes, for every success there are two failures. More likely, the average was somewhere between the extremes. Perhaps we find it in our man Pompeius Auctus, who was kept busy in the Forum of Augustus with small legal matters involving parties of no real importance.¹⁰⁶

* * *

The above clearly reveals the diversity of an advocate’s client base and, of perhaps still greater importance, shows how far beyond the boundaries of Rome an advocate’s involvement could take him. As has also been shown here and in the earlier discussion of the litigant, the docket of the Roman courts was not restricted to wealthy middle-aged male litigants. Rather, we find the old and the young, male and female, the rich and the poorer within the courtroom, all of whom would have benefited from the support of an advocate. That Rome was the judicial centre of the empire meant advocates within the city could be serving the additional important function of help­ing those from Italy or more distant homes, whether individuals, communities, or even provincial councils, to navigate Rome’s legal system. In this respect, such advocates were representatives of the Roman governing structure, whether they served as prosecutors or defenders. In this capacity they had the opportunity to either reinforce or dispel whatever precon­ceived negative or positive notions such outsiders had formed of their overlords.