The uses of advocacy to client and advocate

A contribution to evaluating the political involvement of Roman advocacy is made by Steidle’s study of the de oratore.⁸ His theme is the â€?Roman-ness’ of it all: the education of the young being done by the leading men talking out of their experience - not â€?how to do it’ but â€?how we did it’; the idea that training the young in oratory, and so in statesmanship, is something that the retired statesman should do as a public duty; the insistence that orators who do not come out into the world of practice are futile.

though it is legitimate to use it to bring down the wicked.⁹ Steidle’s only hesitation¹⁰ is as to the origin, at Rome, of the view (which was both Roman and Greek) that it is by the word that the statesman makes his impact: was that an independent development in the two cultures or an aspect of Greek influence on Rome? Steidle is, at least, clear that if Greek influence played a part it was very early: his is not just the customary picture of wicked rhetoric arriving with a bang, like the Demon King, in Cato’s time.

One further consequence, or corollary, of the â€?politicality’ of Roman advocacy is that the patron-client relationship with which it began persisted as between advocate and client for longer than might have been expected.¹¹ In spite of the rise of other words in Latin for â€?advocate’ - aduocatus itself, causidicus, togatus and so on - patronus retained its place, not in inscriptions but in all formal prose, as a standard word for an advocate and, significantly, in particular a defence advocate:¹² it goes on being a synonym of aduocatus and causidicus in Pliny, for example,¹³ and often in the poets.¹⁴ And the â€?feel’ of the relationship continues, not just the terminology. In Martial II 32 we meet the patronus who will not help his client in litigation because of some excuse, always, about the adversary being too powerful and influential: â€?if you want to be my dominus’, says the client, â€?you must be a free man’. In VIII 76 the satirist castigates a man called Gallus, who â€?causam quotiens agis clientis’ â€?whenever you are pleading the case of a cliens' doesn’t like to be told how badly he does it. And in XII 68 the people who turn up to the morning salutatio, besieging the patron’s, threshold, want his services as an advocate:

�non sum causidicus, nec amaris litibus aptus’, he cries: �I’m not a pleader, not the right man for bitter

⁹ See, further, pp.

¹⁰ 255 Steidle, 27, n. 85.

¹¹1 Alexander, ch. IV, argues that the forensic patronus was not a patronus in the ·. patron/client sense; formally that may be correct, but for the mentalite (besides what is said below) 61 David, passim.

¹² Quint. Inst. V 7,22; V 13,3; and see p. 121 above and pp. 138-9 and 149 below. 1 Alexander, ch. 1, insists that patronus actually only means â€?defence advocate’ (and see 61 David, ch. 12, â€?La gloire de la defense’), but both are dealing only with the Republican period.

¹³ Pliny, Ep. Ill 4, 2-3, aduocatus andpatronus used synonymously.

¹⁴ E.g. Martial I 97, 2 â€?et te patronum causidicumque putas’. True, it is fair to point out that aduocatus is difficult to get into many Latin verse metres.

litigation.’ By the most eminent advocates of the early Principate advocacy was still performed mainly for persons (or communities) that were somehow in their circle of amici and clientes.^ In the Dialogus Curiatius Maternus is said to be neglecting his forensic duties for literature:¹⁶ â€?Do you mean to say’, says Aper to Mater­nus, â€?that you’re so insatiable for writing tragedies as to neglect the orationum et causarum studia, cum te tot amicorum causae, tot coloniarum et municipiorum clientelae in forum uocent?’ At that level of society you might be asked by the senate or the consuls to take a case on, and that was more or less a command. The Dialogus has a brilliant page on that,¹⁷ and Pliny quotes Thrasea Paetus on what suits a man should undertake to plead: the suits of friends, the suits no one else will touch, the suits that reinforce morality - and, adds Pliny with praiseworthy self­revelation, causes celebresl¹⁸ „

We turn to the question, important for social history, how often, or regularly, advocates were used. The papyri have afforded some evidence as far as Egypt was concerned: advocates there were ubiquitous but not universal.

¹⁵ 42 Clarke, 65; 61 David; Stat. Silv. IV 5, 50-2.

¹⁶ Dial. 3,4.

¹⁷ Dial. 7.

¹⁸ Pliny, Ep. VI 29,1-3.

¹⁹ 193 Neuhauser, 169ff.

²⁰Livy IV 44,10.

²¹Cic. Brut. 115.

²²Cic. pro Cael. 45.

²³ Cic. Brut. 102 and 117, respectively. governor and one of his comites appeared with mutual accusations:^[314] each spoke on his own behalf, â€?carptim et kata kephalaiori â€?sectionally and under headings’. One observes that that was a matter for remark; and one set of defendants at those imperial sessions did have an advocate.^[315] Lecrivain suggested that â€?defending oneself in person became ever less common because of the complexity of the law;^[316] Cicero’s view, as far as the criminal courts went, was that it was the introduction of secret ballot in jury verdicts that had increased the need for advocacy.^[317] If one moves down the social scale there is plenty of evidence in the general literature about routine advocacy, including references to humble clients with derisory notions as to a reasonable honorarium; and the implication is the same as that to be drawn from the papyri, that advocacy was common and that there were enough advocates about for some to be glad of business.

But could you always have an advocate if that was your desire? Cicero says that â€?nemini umquam infimo maiores nostri patronum deesse uoluerunt’ â€?our ancestors would not allow anyone, even the humblest, to lack a patronus’.^[318] (He says it shortly after remarking that â€?in some states’ a patronus would have been appointed publice for the case he is engaged in.) That must be taken with the same pinch of salt as some of Cicero’s other generalisations, such as that no one was every made to have a iudex that he had not agreed on.^[319] But it can hardly prove less than that the society of his time was conscious that most people felt the need for an advocate and agreed that in principle they should be helped. In criminal proceedings, for a man not to have an advocate is thought by Cicero to be unfortunate;^[320] and though several eminent persons made excuses for declining to act as patroni for the doomed Calpurnius Piso in AD 20, there were some volunteers in the end.³¹ And we have seen how patroni were supplied to non-citizens wishing to prosecute under the lex repetundarum because they could not be heard in person in the courts.³² Defence of the comparatively humble at need is also implied in a passage of the Commentariolum Petitionis - and, what is more, gratis·, â€?since at no expense they have gained through you some their goods, some their reputations, some their very lives,..’;³³ and the writer is not there thinking of the great and grand but of the cloud of grateful clients who will attend the statesman. The implication is not that an advocate had to take on such work but that it conduced much to his public credit to do so. But of course the star performers were choosy: â€?I know you magnoà patronos’ says Cicero in a letter to Caelius, â€?if a man wants to get one of you he’d better commit murder.’³⁴ And if it was not murder, nor even criminal at all, but an ordinary civil suit, what then? There was then, as there is amongst scholars nowadays,³⁵ a tendency to regard civil proceedings before unus iudex as small beer, but, as far as advocacy is concerned, quite enough hints and clues will appear³⁶ that the parties might have advocates - and, of course, they did so in the corresponding proceedings in Egypt.

It scarcely needs saying that the whole Greco-Roman world was litigiously minded, and there is plentiful evidence for litigation at levels of society below and beyond the Ă©lite, not only in Egypt. The uadimonia for court appearance that comprise a large section of the Puteoli Tablets,³⁷ for example, reveal the litigatory activities of the class of freedmen and freedwomen who were the backbone of that highly business-oriented city in the first century AD. Some of the uadimonia are for appearance in the local court, but some are for Rome, and so link up, over a century, with a remark of Cicero’s in the Verrines³³ about people from the municipalities coming to Rome uadimonii causa. And advocacy at that level? Juvenal, and still more Martial, provide

³¹ Tac.Ann.IIUl.

³² See Ch. II, p. 47 and n. 72, above, and p. 161, below.

³³ Comm. Pet. 38 — not talking about really humble people, either. See Quint. Inst. X 6,1, â€?auxilium in publicum pollicetur’.

³⁴ Cic. ad fam. II14.

³⁶ 145 Kelly, esp. ch. V; and see p. 132, below, with n. 84.

³⁶ See p. 136, below.

³⁷ 34 Camodeca; 303 Wolf.

³⁸ Cic. II in Verr. v 34.

vivid satirical pictures of what it was like to practise at the less elegant end of the spectrum. �Argue yourself hoarse before some bumpkin of a index, and what do you get? A couple of bottles of plonk!’^[321] And to supplement the names of the eminent practitioners of his day Juvenal produces a little row of names (they must, surely, be of real people, though it would not matter much if they were not)^{[322] [323] of otherwise quite unknown lower-level performers: Paulus, Gallus, Basilus. On the last-named he enlarges a little: �When will Basilus have the chance of a good ripe emotional case (instead of the boring stuff he has to make his bread-and-butter on)? But, then, no one would be pleased if Basilus were eloquent.’ Again we can hark back 150 years to some vignettes of Cicero’s in the Brutus.L. Caesulenus is remembered, prosecuting for damage to property under the lex Aquilia: very low in the profession, says Cicero, but a good insimulator, prosecution specialist. And then there were the brothers Caepasius, crude fellows and only too glad of work, but effective in their way - though that is a more generous estimate than that given long before in the pro Cluentio, where Cicero tells a malicious story about the elder Caepasius which is simply too good to miss.[324] Cluentius on some occasion prosecuted a certain C. Fabricius, and the latter, finding no one of standing willing to defend him, turned �to the brothers Caepasius, hard-working fellows, whose principle was that any chance of a brief was better than none...’. There was a short prosecution speech, and then Caepasius Senior launched into a long preamble. That was heard patiently, but when he got to the matter of the defence his performance was so inept that he drove extra nails into his client’s coffin, so that you might have supposed he had been suborned by the prosecution. And he ended with an emotional climax: �Observe, O judges, the fortunes of mankind, observe the vicissitudes of humanity, observe the advanced years of C. Fabricius’ - and then he observed for himself and found that his client had left the court, which vexed him so that he interrupted his speech, rushed out to find his client, and dragged him back into court in order to complete his peroration.}

Of no small relevance to the question what advocates were for is the topic of multiple advocacy. We have seen it in the papyri, and noted how difficult it was to make out why more than one advocate was needed, and speculated that it was in the interest of the profession rather than the client. Cicero in the pro Cluentio^[325] asserts that in the old days people were content with a single advocate;^[326] and he did the whole of that defence by himself, and pleaded four whole days for Cornelius.^[327] But there was a great escalation in the last sixty years of the Republic.^[328] Asconius,^[329] speaking of the famous trial in 54 BC of Scaurus, who was defended by six patroni including Clodius, Hortensius and Cicero, as well as pleading on his own behalf, says that up to that point the usual number had been four. It was patronatus, of course: it advertised support. In prosecutions, also, the principal accuser commonly had subscriptores, as in famous episodes like the �ganging up’ of the principes uiri against Cornelius;^[330] but because prosecution was not generally seen in as favourable a light as defence they were less likely to make an actual speech in court. There is a mass of detail in the literature;^[331] here are some specimens.

At the prosecution of Balbus, Pompey, Crassus and Cicero defended; at that of Saufeius, Cicero and Caelius defended; at that of Caelius, Crassus spoke before Cicero, Caelius having opened his own defence. At the trial of Sestius, Hortensius spoke before Cicero; for Ligarius the principal defence advocate was not Cicero but C. Vibius Pansa. In Murena’s prosecution Cato and Sulpicius were both accusers, and for the defence Hortensius and Crassus spoke before Cicero; and in the three prosecutions of Vatinius Calvus was the prosecutor each time, and Cicero once joined him and once was for the defence!^[332] Asinius Pollio and Messalla Coruinus both defended a lady called Liburnia in what sounds as if it must have been a cause cèlebre.^[333] And when we arrive at Pliny’s letters we find Pliny and Regulus pleading together, Pliny and Tacitus pleading together and Pliny and Lucceius Albinus pleading together.^[334]

There were, in fact, a variety of reasons and motives for multiple advocacy. In the great political trials one was, to be sure, the desire to be in at political kills and share in political pickings.^[335] But apart from that we hear of the growth of specialisms from quite early on; and very illuminating is a recorded fact about Cassius Seuerus, a leading post-Ciceronian advocate: in criminal law he never took more than one case a day, in civil law never more than two - one before noon and one after.^[336] That gives an idea of the volume of business that was put in the way of a leading advocate; but it also supplies the background to a passage in Cicero’s Brutus.^[337] Cicero there talks about the six really top-notch contemporary advocates, who parcel out the �big work’ between them and are often to be seen in the same cases, and find themselves replying to points they’ve not heard made and going over ground already traversed by someone else; and the reason is that none of them wants to disappoint a good client, and since they cannot take that many whole cases they get up a part of each case only.

When we look at the kinds of specialisation that grew up, one surprise is that what might have seemed the most obvious division of labour was not made, that between civil and criminal, especially seeing that the two branches had different origins and came before different courts until the cognitio extraordinaria fused them. Initial surprise gives way, however, to the under­standing that the criteria in this matter really were nihil ad ius, but exclusively rhetorical. For what we find is specialisation according to the different parts of the job. When Hortensius and Cicero appeared in the same case Hortensius would leave the

IV. Advocacy in the traditional material 129 closing address to Cicero;^[338] and a hundred years later Pliny is going down to hear the speeches in an actio prima because he has been briefed for the secunda.^[339] Suetonius has an account of the eminent rhetor Albucius Silus, who, unlike many of that ilk, undertook a few real, live cases; but not often, because he owed it to his reputation to accept only the extremely pricey ones, and would never take any part except the peroratio.^[340] Quintilian, on the other hand, was an exposition specialist, and explains that �in civil actions some people are usually called in ad actiones and others ad probationem’ (by which he must mean the set speech and the �point-by-point’);^[341] some advocates, he says, do only set speeches, and leave the altercatio, the extempore skirmish, to comparatively inexperienced and low-grade practitioners.^[342] And that points in the direction of the other aspect of specialisation: the younger generation had to get their apprenticeship, and multiple advocacy was part of the way it was done.^[343] Two remarks of Pliny bear testimony: in one place he says that in the �good old days’ not even very noble young aspirants were allowed to plead except under the wing of a consular; and in another we find him agreeing to take a case provided that his promising protege Cremutius Ruso is invited to agere with him.^[344]

The standard account of the monetary rewards for advocacy^[345] is given in the reference books.^[346] From of old, fees were not supposed to be taken at all, but they always were in practice, and there were recurrent outcries about the fact. Whereas at the highest social level the rewards of advocacy, in a patron-client culture, were, however immense, not directly financial, that can never have been true lower down the scale; but it was the aristocratic ethos that governed the rules. Only in the reign of Claudius were fees finally acknowledged as legitimate up to a

maximum of ten thousand sesterces,^[347] and even that figure continued to be breached. We must try to gain a sense of what actually happened - whether, in particular, fees were charged that were prohibitive to poor people,^[348] and what the advocates themselves thought about it. There was, not surprisingly, a tendency for laymen to exclaim at the wealth, power, arrogance and greed of advocates^[349] (we meet it right down to the celebrated jeremiad of Ammianus Marcellinus),^[350] and for advocates to protest that they were wretchedly ill-rewarded. Cicero was un-hypocritically proud of his great rewards,^[351] and in the de officiis refers frankly to the temptation upon advocates to offer their services to the powerful, whose remuneration will be prompter.^{[352] [353] Tacitus in the Annals'11 puts into the mouth of the hated Suillius a defence of advocates’ fees: �Everyone knows how much Clodius and Curio got for their public speeches; all we ask is a reasonable emolument, without which you’ll get no advocates.’ We also meet in the sources an attitude characteristic of other professions besides advocacy, and other ages: that it is reasonable to �soak the rich’ but succour must not be denied to those who cannot pay much: �turpe reos empta miseros defendere lingua’ �shameful to defend unhappy prisoners with a purchased tongue’.[354] That sensible doctrine is put in much the same way by Quintilian: if you are of independent means don’t ask for fees, but if you need an income don’t hesitate to take what is offered. But you must not bargain.[355] True, we never hear of one of the great advocates pleading the case of a pauper,[356] and doubtless in practice lesser mortals were served by lesser advocates. Martial, in successive epigrams,[357] quotes figures. In the second of them it is 2,000 sesterces: �Sextus, I pleaded your case, having agreed a fee of 2,000. You’ve sent 1,000: why? “You didn’t give us a narratio”, you say, “and you lost the case.” You owe me extra Sextus, for my blushes.’ Two thousand sesterces sounds somehow, a plausible figure, and it is not peanuts (more than a year and a halfs basic pay of a legionary); but in the previous epigram the figure is ducena, which must mean 200,000. Friedlaender in his commentary supposed that the man was asking ducena annua, an income of 200,000 a year.[358] That is huge enough, but an annual income scarcely makes sense in the context: if what he demanded was 200,000 per case, that is huger still, though the awful Suillius (the inan who said �we’ve got to live’) got twice even that from an eques, in advance, and deserted him, and the man committed suicide.[359] The best conclusion is that the parameters were exceedingly wide, depending on the social level, right down to the �bottles of plonk’ at the bottom, and that the advocates were at the mercy of the market, because they could not sue.}

Taking the evidence as a whole, including the papyri, it seems that Kelly’s conclusion was right,^[360] that, by and large, cost did not stand in the way of people getting advocates. Being disposed to a negative view of the social even-handedness of Roman procedural law, Kelly sounds disappointed to have to conclude that �So far as the advantages of status in litigation are concerned, the matter of advocates and their fees appears to be a neutral area’; one less hostilely disposed might, in this area, have awarded it a better mark than that.