This chapter has as its subject what will, for simplicity, be called �the papyri’, though one or two inscriptions can profitably be considered at the same time.[147]

It is fair to say that this material has not yet been fully laid under contribution. Weiss, long ago,^[148] in a paper about the citation of previous decisions in the courts, made use of some of it, but not for anything like the present purpose.

III. Advocacy in the papyri: the under-exploited source 59 Journal of Juristic Papyrology for 1950.^[153] The title of the dissertation was �Influence of Rhetoric on the Law of the Papyri in Egypt’, that of the summary more explicit as to its purpose: �Influence of Rhetoric on the Shaping of Judicial Decisions in the Papyri’.^[154] Schmidt sought to show how the arguments of the advocates influenced the decisions of magistrates in the instant case, specifically in the direction of aequitas. It is sufficiently remarkable for anyone to have done a dissertation at all in Germany during such years as enabled it to be submitted in 1949, but Schmidt was in no position at that time to comb the evidence thoroughly, and - which is, of course, no fault of his - a number of illuminating documents have turned up, and critical studies been written, since the date of that thesis. One may acknowledge with gratitude some useful observations made in it, but for present purposes the work had to be done again independently.

The papyri transport us to Egypt. It was argued in the Introduction that that is no reason for excluding their evidence as to the role of advocacy in the legal order in the Roman period, because the courts of Egypt were part of that order. However, the reader must bear in mind that in this chapter we are in a province, and, what is more, in the Greco-Egyptian east. All jurisdiction, for example, is cognitio extra ordinem: the magistrate is judge (and the judge is a magistrate unless he is a delegate), and runs the proceedings essentially as he chooses. Sometimes the court is that of the Prefect, sometimes there are other judges - epistrategoi, strategoi, the idiologos, private persons like gymnasiarchoi and archidikastai, military officers. But all the others are in principle delegates of the Prefect. As to the tradition of advocacy to which these provincial advocates belong, it is no doubt that of Greek synegoria·, we shall not have reason to think that that makes any difference.

Lest the reader should suppose that I have combed the papyri myself from scratch, I at once acknowledge my vast initial debt to the list compiled in 1966 by Coles;^[155] but his list is strictly confined to �Reports of Proceedings’, whereas materials for the

present purpose are occasionally found in other kinds of document and his reports are sometimes of other sorts of proceedings - and some choice examples have come to light since that list was published. As said at the beginning, a few inscriptions deserve to be put alongside the papyri; on the other hand I have excluded one well-known group of the latter, the �Acts of the Pagan Martyrs’,^[156] in view of the unresolved uncertainties as to how much of what they contain is protocol and how much fiction. Some individual papyri constitute parts of - and only make sense in the context of - �dossiers’; a mere count of numbers of papyri used would not, therefore, be particularly helpful. But between 170 and 180 may be regarded as truly relevant (though a few of them are of very late date).

The nature of these documents is not homogeneous. I am not at this moment referring to the cases where it is difficult to decide, for example, whether the text is a petition or part of a speech in court, but to the question, recurring over and over again, whether what we have is a verbatim record or a summary or abstract - and, which is connected, for what purpose it was recorded and by whom. That is all discussed in Coles’s first chapter:^[157] if his most sceptical conclusions were right we should hardly be able to use this material at all for investigating what advocates said; but it is hypersceptical to suppose, for example, that somebody �put the condensed speeches back into colloquial language and arranged the whole in an oratio recta,

III. Advocacy in the papyri: the under-exploited source 61 quasi-verbatim form’.¹² In any case, they are not all in oratio recta, â€?direct speech’, though they become predominantly so. Some are, expressly, extracts from the daily court records of officials. Some are, expressly, abstracts {â€?meth’ hetera “after other things” X, rhetor, said But some are surprisingly full, and contain rhetorical and polemical elements inessential to a summary. There were, or could be, shorthand or longhand writers in court making official transcripts, and the parties might bring their own secretaries; but also, of many speeches there will have been a written draft, and that could be referred to afterwards.

Three different styles are used in these papyri to record the speeches of the advocates - or, perhaps more systematically, two, one being in two variations. The two categories differ according to whether they are couched in oratio obliqua, �indirect speech’, or oratio recta, �direct speech’. In the former case a genitive absolute, �so-and-so eipontos’, is followed by what was said, given in oratio obliqua·, in that style we are in yet another way distanced from the actual words of the speaker. The

¹² 48 Coles, 16.

¹³ 133 Jolowicz, 14.

¹⁴ We shall have to consider the relevance to this of the so-called â€?Narratio’ papyri: see PP. 113-18, below.

¹⁵ See 52 Crawford, 210-13, and Quint. Inst. IV 3, 17 on the â€?short’pro Milone, which ^was extant.

¹⁶ That is the reason for leaving out the â€?Acts of the Pagan Martyrs’; and there exist one or two texts of which it is uncertain whether they are records of actual speeches of advocates or rhetorical exercises.

oratio recta forms are either �so-and-so ripe’ or simply �so-and-so’ with an implied colon, followed by what was said given in oratio recta.

The terminology and language also require a preliminary word,^[158] not least to signal the persistence of the main terms used, as well as of the whole actual procedure, over a long stretch of time. The advocate is, to all intents and purposes, always referred to - and refers to other advocates - as rhetor. To brief an advocate is rhetora didaskesthai (middle voice),^[159] though didaskein (active voice) is sometimes used intransitively of what the advocate himself does, to �plead’.^[160] The client is normally described by the advocate or the judge or other advocates as ho synegoroumenos, he synegoroumene, occa­sionally ko boethoumenos, though the advocate himself is not called ho synegoros (except that the verb is sometimes used: ho synegorori). The advocate sometimes narrates his client’s tale in the third person, sometimes identifies himself with the client by switching into the first person plural (�we’ and �our’). As to the language in which proceedings in these courts took place, the language of the documents is uniformly Greek,^[161] until a late period when some Latin creeps in, sometimes to the rubrics, sometimes recording the remarks of the magistrate. And that the proceedings were in fact in Greek is corroborated by the not infrequent information the documents give that persons (presumably monoglot native Egyptians) were interrogated, and addressed the court, di’hermeneos �through an interpreter’.^[162]

Before the texts in our �main series’ are individually described, some pointers are offered as to what the reader may expect to see in them.

First is the fact that there are advocates. Plaintiffs (including the treasury) and defendants have them. And the society glimpsed through the papyri is not that of the �great and grand’

III.

Important questions arise about the practicalities of litigation in the courts of Egypt - and so elsewhere. Were people entitled to the services of an advocate? Were there advocates paid for out of the public purse? Were there advocates waiting in the vicinity like boats for hire? One would think that while a â€?dock brief might have provided a litigant with one advocate it would hardly have supplied a plurality. Yet there is some cumulative case, not for advocates salaried from the public purse but for the presence about the conuentus of advocates ready to take on clients as they appeared; and in so far as that evidence convinces it might justify the hypothesis that the rules in the late Roman empire by which each jurisdiction had its fixed â€?Bar’ arose from the practice of the provincial conuentus in the earlier imperial period. The evidence will be referred to as it appears in the texts, but there are some points to be taken here and now. First, there was a promise in the Praetor’s Edict²⁷ - therefore not later than the Hadrianic codification, and perhaps much earlier - that in certain circumstances the Praetor would â€?grant an advocate’; it will be stated later, however, that that rule should not be generalised beyond the field to which it specifically applied ²⁸ Secondly, the conjecture will be made in the Excursus on â€?Petitions and the “Narratio” Documents’, below,²⁹ that the (late) so-called â€?Narratio’ papyri may have been briefs in the form of a partially worked-up oration for the use of an advocate who had to pick up a case at short notice. In the third place, the implications should be pondered of the remark by Ulpian, discussing the granting of restitutio in integrum â€?reinstatement into the former legal position’ to persons other than minors,³⁰ that one who has been absent must be allowed reasonable time, upon his return, to seek restitutio·, time to â€?find a lodging and put his belongings in order and seek an advocate’. Perhaps it was to the conuentus that he would naturally direct himself. Fourthly, we may contemplate a remote source indeed, an unreliable life of a Coptic martyr,³¹ to whom the magistrate says: â€?You have not availed yourself of any of the advocates present here to contend for you.’ And finally, for the moment, reference may just be made to the group of inscriptions in which advocates at the African Bar do honour to the governor.³²

But though our first proposition was â€?there are advocates’, our second must be â€?... but not necessarily’, for numerous cases can be cited in which there is no sign of them, and nothing in the material enables us to determine why there sometimes were and sometimes were not. It does not appear to be related to the affluence or otherwise of the parties, or the type of proceedings, or the ranking of the court. In a long document of the second half of the second century, known to Mommsen,³³ in a case, evidently of some importance, before the idiologos, all parties seem to speak for themselves: â€?Legal assistants of the respective parties, such as appear regularly in civil proceedings, there seem to be

²⁷D.3.1.1.4.

²⁸ P. 159, below.

²⁹ Pp. 113-18, below.

³⁰ D.4.5.15.3.

³¹ The â€?less reliable’ version of the Acta Sancti Colluthi, in E.A.E. Reymond and J.W.B. Barns, Four Martyrdoms from the Pierpont Morgan Coptic Codices, Oxford 1973.

³² See p. 151, below.

³³ BGU 388 (= M. Chr. 91); Mommsen, Ges. Schr. 1,465ff.

III. Advocacy in the papyri: the under-exploited source 65 none’, wrote Mommsen, perhaps implying that this case was as it was because it was a matter of �administrative law’; but so were plenty of instances in which we shall encounter advocates. The mystery is actually the deeper in this case because although there are no advocates there is a nomikos, who gives evidence as to the Roman (yes, the Roman) rule about tahellai. Another document to be noticed,^[168] of AD 128-9, continues a quarrel of which the earlier phase constitutes one of the prize exhibits in our �main series’,^[169] where there are advocates and rhetoric galore: yet in this, the sequel, there is just the litigant in person. Proceedings before the strategos of the Herakleopolite district in AD 135^[170] give us, in the genitive absolute, the statements of the parties in person; and P.Oslo 17, of AD 136, before the strategos of the Prosopite, is given, for comparison, as the last item in our �main series’.^[171] That there should remain mystery about this is doubly vexing in an investigation that seeks to determine what the role of advocates was, i.e. why they were used!

The parties usually seem to be present, except in some cases where one party appears in person or through an advocate to complain of the non-appearance of the other. So when there are advocates present their clients are present as well, and it does not seem to have been normal for the whole conduct of affairs to be left to the advocate: there may even have been a rule in Egypt that you could not appear simply in the person of your advocate. Nor were the parties there just for form’s sake - far from it. That is in strong contrast to what we are accustomed to think of as the metropolitan Roman practice, though it is, for sure, possible that altercations, etc., have been �ironed out’ of the published speeches of Cicero.^[172] Certainly the advocates orate, and also take part in altercations with one another and with the judge, and answer questions put by the judge. But also, frequently, when the judge poses questions, the parties themselves respond; and no less frequently, when the advocate has done orating, his client’s case seems to fall back into the hands of the client, who enters personally into further argument with his opponent or

opponent’s advocate. That further darkens the question what advocates were wanted for, since litigants do not seem necessarily to have lacked the confidence to confront a court.

Some evidence can be elicited from these texts as to the legal competence of the provincial advocates of Egypt. In some of the papyri in our â€?main series’ they quote cases and precedents competently and relevantly. We are reminded of the point taken, disparagingly, by H.J. Wolff,³⁹ that the legal arsenal of the Greek advocates never got beyond â€?a primitive knowledge of the statutes’: that, however, was, most of the time, most of the battle, and their ability to do it properly shows that they knew their business. On the other hand there are places where what the advocate urges seems to be irrelevant or erroneous, and then we are in a difficulty, since we cannot easily tell whether he is incompetent or is striving to bamboozle the court or gain time.⁴⁰ Furthermore, in one or two of our documents⁴¹ the advocates seem to have been inadequately and hastily briefed, and left in difficulties as to how to conduct the case beyond a narratio and a few generalities. That might point yet again in the direction of something analogous to â€?dock briefs’.

As to their oratorical competence, flights of eloquence of any literary interest are scarcely to be expected at this level. Yet the influence of rhetorical training is palpable, in organisation and in a certain amount of invective, and in appeals to emotion of a familiar kind: there are passages reminiscent, and worthy, of Cicero. The advocates are, century after century, in a living tradition.

The course of legal proceedings in these documents is governed by their being in principle magisterial cognitiones. There is, thus, not as set a form for advocates’ speeches as would have been found in Rome. There are exordia, narrationes and perorationes, but the magistrate poses questions, interrogates witnesses, consults his consilium now and then; interruptions, by one advocate of another or of advocates and principals by the magistrate, are common, and the proceedings sometimes develop into an informal general wrangle, into which all present

³⁹ 306 H.G. Wolff, 13.

⁴⁰ Commentaries on Demosthenes and Cicero, nowadays, regularly assume that misstatements of fact or law are deliberate.

⁴¹ P.Flor. 61 (= M. Chr. 80), no. 2 of our â€?main series’; BGU 15, Col. I (= W. Chr. 393), no. 21 of our â€?main series’.

III. Advocacy in the papyri: the under-exploited source 67 seem to step as the inclination takes them. However, advocates do get the chance, in some of these texts, to make set speeches; and when the texts are abstracts we can, of course, hardly tell. There is no direct reference to a set time being allowed - so many runs of the water-clock, or the like; but in one papyrus in our main series,⁴² of AD 250, an advocate begins his exordium with the words peri de hou dikazomai dia bracheon se didaxo â€?and as to what my case is about I will inform you in few words’, and in the inscription from Dmeir in Syria, also in our â€?main series’,⁴³ the advocate, before the emperor himself, appears to say that he will â€?only speak for half an hour’.⁴⁴

The subject-matter of the proceedings in these papyri is diverse. Analysis of the 36 cases (other than P.Oslo 17) in our â€?main series’ gives the following·.⁴⁵ five are taxation or liturgy appeals, and another five are straightforwardly administrative, including one about liability for custody of public documents and one about a quarrel between villages over an irrigation canal. Some others are on the borderline: a case about guardianship, but complicated by the special status of citizens of Hadrian’s foundation of Antinoopolis, and a case about assault, but concerned with the proper forum because the victim is an Antinoite; a case of assault with the treasury involved in some way; a case about the rights of villagers in the custody of a temple. The rest are of a private-law character (though still, now, often involved in bureaucratic rules): custody of a foundling; rights of fathers over married daughters; marriage of soldiers; three wills; one fideicommissum·. two â€?straight’ matters of guardianship; two distraints on land for non-repayment of loans; other loans, of wheat and of money; mortgage (plus attempted poisoning!); â€?straight’ mortgage; cessio bonorum in bankruptcy; longi and longissimi temporis praescriptio\ theft of sheep, being the property of orphans; the right to recover property sold by an owner-in-common. The word â€?plaintiff, with

⁴²P.Stras. 41 + P.Lips. 32 (= M. Chr. 93), no. 28 of ourâ€?main series’.

⁴³SEG XVI759 f = AE 1947, no. 182), no. 25 of our â€?main series’.

⁴⁴ The parallel between our nos. 25 and 28 diminishes the plausibility of the view that In no. 25 the whole trial was a charade and the remark about â€?only taking half an hour’ facetious: see the discussion of no. 25, pp. 91-5, below.

⁴⁵ Though it must be stressed that, these being cognitiones, there is no sharpness of definition, and it is not always easy or appropriate to characterise the subject-matter Precisely, even as between â€?civil’ and â€?criminal’: uis is a concomitant of several of the otherwise â€?civil’ allegations.

its private-law overtones, is often not appropriate for the party taking the initiative in these legal dramas: �petitioner’ or �complainant’ may be a better word, for the beginning is often not the in ius uocatio of the ordo iudiciorum but a petition to a magistrate for relief.^[173] Of the relationship between those petitions initiatory of proceedings and other petitions in the papyri more is to be said shortly and in the Excursus, �Petitions and the “Narratio” Documents’, at the end of this chapter.

It ought to be a particularly valuable feature of these papyri that sometimes they contain not only the arguments but the judgment: alas, the judgments are mostly disappointing and disillusioning, because frequently they fail to settle anything. They often seem like classic examples of �passing the buck’, the judge saying �Well, if that is so, the court remits the matter to X to investigate and decide’. In Egypt, where all other judges were in principle delegates of the Prefect, there was naturally a temptation to remit anything awkward to the Prefect, to whom appeal would lie anyway; but sometimes in these cases the matter has come down from the Prefect, and sometimes the case seems to be shunted sideways. In some instances it is hard to see what other investigation was called for, since the facts appear to have been set out by the advocates; in others, allegations of fact are made in court and the magistrate seems quite uninterested in them. One can well infer from these texts a very delay-ridden system of justice in Roman Egypt, whereby recalcitrance of parties and indecisiveness of judges can keep an issue on the docket, shuttling from court to court, for years; and sometimes the defendants have just simply not complied with judgment when given, and a year or so later petitioners are back starting the whole issue again and quoting earlier judgments in their favour. It is all, potentially, fuel for the scepticism of those who believe the whole apparatus of Roman imperial law to have been a fraud and a facade;^[174] but into that large question it is not within the scope of this book to enter.

Lastly: a great many papyri of the Roman as of the Ptolemaic period consist of petitions to the authorities by members of the public. Their style is often rhetorical and emotional, so that they

III. Advocacy in the papyri: the under-exploited source 69 often read just like an advocate’s narratio of his client’s case in court, to the extent that of some texts it is uncertain whether they are the one or the other. Who wrote those petitions? Probably not often the petitioners, who are likely to have been illiterate and unlikely to have been rhetorical. It is sometimes supposed that the answer is humble local nomikoi, men who, whether well or ill qualified, held themselves out as law experts and assisted in the drafting of documents (the activity of cauere, which in old times the iuris prudentes had engaged in). There were certainly nomikoi around the courts, whom we meet being consulted on points of law. They can be found also doing drafting;⁴⁸ and yet the resemblance between the petitions and the speeches of advocates suggests the alternative possibility that, sometimes at least, it was the latter who drafted those documents, which could then serve as a brief if the dispute landed up in court. It was possible for the same person to combine the roles of rhetor and nomikos,⁴⁹ but it would be as rhetor that he drafted petitions. Of particular relevance is the group of documents already referred to, which have come to be known as the â€?Narratio’ papyri and are regarded as actual written briefs for advocates; and they will be analysed in the Excursus to this chapter, below.

So much for preliminaries. We turn now to the texts, and first to the �main series’, presented in chronological order.