2. Usus iudiciorum, the practice of the courts

The nature and course of criminal proceedings is pretty well known,^[361] that of civil proceedings rather less so.^[362] That is partly because of comparative sparseness of evidence, but that very sparseness is because the profession itself regarded civil litigation as smaller beer:⁸¹ â€?little cases, such as on the whole private lawsuits are writes Quintilian,⁸² and in several passages he characterises the cooler, more relaxed style he thinks appropriate to â€?inheritances and interdicts and spon­siones and certa credita’⁸³ In the Dialogus private law is regarded as a bore: â€?All that dreary stuff in the pro Tullio and the pro Caecina...

Kaser, though of the school who believe that what the advocates were up to was nihil ad ius, has valuable remarks about the usus officiumque iudicis:⁸⁸ the principle, for example, that both sides must be heard, and the principle that the iudex must concern himself only with what has been brought to his attention (the â€?adversary principle’, in fact), except that he is entitled to ask questions.

In the criminal courts, under the system of the quaestiones perpetuae, the advocate might have to appear for the same client in the same case more than once because of the rule of comperendinatio, requiring actio prima followed by compulsory adjournment followed by actio secunda. In civil actions too,

⁸¹ See p. 121, above.

⁸² Quint. Inst. IV 2,117.

⁸³ Quint. Inst. XII 10,70; IX 4,21; XI1,44-5; XII 9,7.

⁸⁴ Dial. 20 and 37, respectively: and see pp. 121 and 125, above. To be noted is that, disdained or not, advocacy in civil procedure is implied to be still going full swing, even down to actiones furti. See also Quint. Inst. II 10,4-5; IV 1,19-21.

⁸⁵ Cic. opt. gen. 9-10.

⁸⁶ 140 Kaser, 275ff. under the â€?formulary system’, there were, though different in principle, double proceedings, in iure and apud iudicem. The latter, whether before a single iudex or recuperatores or the centumuiri (the last technically under the yet older system of the legis actiones), were strictly speaking the trial of the action, the agon·, the part in iure â€?before the court’ was the stage of â€?pleadings’ to settle the formula and agree upon a iudex. We have practically no idea what that phase of civil proceedings was like in practice - how much of the client’s narratio had to be gone through, for example - but the participation of advocates in that phase is not in doubt: it is wrong to think in terms of the proceedings in iure being the part for â€?legal argument’ to the exclusion of the â€?fact-men’.^[363] No such procedural stages occur in the papyrological material because in Egypt all procedure, civil and criminal, was cognitio extra ordinem; but all those appeals and adjournments may have produced something of the same effect, and - more importantly - the papyri show that cognitio did not necessarily deprive advocates of the chance to make full-scale narrationes and the rest, notwithstanding the cries (which we shall examine) about the ruination of their business.

The course of trials was full of pitfalls for advocates. For example, the comperendinatio procedure of the quaestiones meant that after the compulsory adjournment the whole case had to be put to the jurors again. Quintilian refers^[364] to the special kind of exordium appropriate to actiones secundae where the jurors in fact know the outlines of the case already.^[365] On the whole, defence advocates were the more likely to have to plead extempore: Quintilian says that that is why it is easy for a second-rater to succeed as a prosecutor but takes a really �alpha’ man to be a good defender.^[366] Some other hazards it is rather puzzling, now, to explain, such as the possibility, referred to by Quintilian, of centumviral actions having to be pleaded before two successive panels of centumuiri,^[367] and the possibility of being sent back to the same judges a quibus appellatum erit �from whom appeal shall have been made’, or have the same iudex to cognoscere again a case he has already given a decision on.^[368]

In each actio of criminal proceedings under the quaestiones the advocates of each side delivered set speeches, prosecution first;^[369] then came examination of the oral and written testimony of witnesses, then altercatio, the cross-fire between the advocates, and then at the end of actio secunda, straight away, the verdict. We find, therefore, references both to what a defence is going to be or witnesses will say and to what has been said already.^[370] J. Humbert, in the 1920s, largely from the internal evidence of Cicero’s speeches, drew a different picture.^[371] He argued that Roman advocates did not each in turn deliver a set speech with all its formal parts, but that the whole proceedings took place in bursts of altercatio, each advocate taking up at once the points raised by the other: the speeches as they have come down to us are, on that view, constructs after the event.

As far as we know, in civil proceedings also, apud iudicem, at any rate, there was continua oratio, the set speech.^[373] That is, be it remembered, the custom of modern courts: apart from the considerable freedom of argument arising from the examination and cross-examination of witnesses modern barristers make full-scale speeches - except for a certain amount of interruption (protested against when excessive) by the judge, which never seems to have happened in Roman criminal cases, for obvious reasons,^[374] though it could, and did, in civil. So we cannot assert that the making of long speeches was in itself pernicious without condemning our own system in the same breath.

However, in the period of the Principate there was some reaction against it, which coincided with the growth of cognitio extraordinaria, in which the judge was a magistrate or his delegate. We hear of the emperor Nero insisting on cases before him being argued point by point," and have already noticed the pleadings before Trajan at Centumcellae, which were done �sectionally and under headings’, �by which mode’, allows Pliny surprisingly, �the truth is at once brought to light’.^{[375] [376] It does not look, from the papyri, as if cognitio prevented an advocate from speaking at length; but we have seen how those proceedings could develop into a �free-for-all’ that might have discomposed some of the great formal practitioners, especially the masters of the rhetorical schools, some of whom could not face the �rough-and- tumble’ of the real, live courts at all.[377] In fact, from the standpoint of the leaders of the profession, the new mode was one of the factors in its decline: nowadays, complains the author of the Dialogus, judges all too often tell the advocate to �get a move on’.[378] On the other side, Pliny remarks on the dangers of haste and impatience: �Advocates nowadays often don’t take the time allotted them.}

The rigours of the ambience were great, and physical stamina and a powerful voice were requisite for success as an advocate, in Rome itself, at any rate.^[381] For much was going on simultane­ously, and either the open air carried the voice away or the echoing basilicas resonated with it and others at the same time. Din and open air are the practising orator’s lot, says the elder Seneca.^[382] You could be interrupted by voices or applause from neighbouring courts,^[383] and people might be shouting at the iudex or your opponent’s advocate shouting at you in the altercatio·. concentration was therefore another indispensable faculty.^{[384] [385] To the virtuoso performers, of course, that was meat and drink: �How constricting’, says the author of the Dialoguslc® �are the loggias[386] where we now have our “little chats” with the jury, the auditoria and tabularia where most cases are now dealt with.... Just a couple of people there: it’s like a wilderness!’ Kelly, in his attempt to establish that proceedings before unus iudex were marked by a special privacy and confidentiality,[387] insists upon the evidence that suits of that kind could take place in the rooms of private houses.[388] Vitruvius indeed shows that noblemen’s houses were built big enough for �publica consilia et priuata iudicia arbitriaque’ to take place in them;[389] but Kelly’s conclusion that that evidence undermines the publicity of civil proceedings is itself undermined by the fact (which he himself quotes in a footnote)[390] that such rooms were big enough to contain subsellia, rows of benches, and to be used for literary recitationes before an invited public.[391] Kelly adduces some of the passages that discuss the �quieter style’ appropriate to the more intimate type of case, such as that before unus iudex;[392] the important conclusion from that evidence is its confirmation that advocates were regularly used before unus iudex, whether in the Forum or elsewhere, and the discussion of appropriate styles of oratory for such proceedings is the clearest proof that it was still employed.}

All the great practitioners and theorists insist upon the seriousness with which an advocate should prepare his case. That applies not merely to having a prepared oration but to assembly of the material and discussion with the client. Cicero sighs, in the de oratore, at the work you have to do in getting up a case: tabulae, testimonia, pacta....^[393] The most fascinating passage, however, for its very modern sound, is one towards the end of Quintilian’s Institutes.^[394] The consultation of client and advocate, he says, should have time and place allotted to it, and the client should be allowed to tell his tale at any length he likes; and you should take notes, and make him go through things twice - for he may be pretty dim-witted - and treat him as if he were the adversary to get the real story out of him. Not but what there are many disgraceful advocates who mug up a brief at the last second and then just mouth irrelevancies, or tell the client to give his instructions to their amici, who will prompt them, or work to a statement of case not written by themselves.^[395] (It sounds as if Quintilian is being very lofty about the bread-and-butter end of the profession, or so our acquaintance with the Egyptian material would suggest!) In any case, something else said by Cicero re-establishes the gulf between ancient and modern: as to points of law that may prove tricky, it is for the parties to see that the advocate gets the necessary advice on those!^[396]

Tn a way, I miss the dreadful Regulus,’ says Pliny.^[397] �At least he knew what advocacy was about: timebat, pallebat, scribebat he got his butterflies in the stomach and cold sweats, and he wrote his stuff out.’ The ideal strategy, in Quintilian’s estimation, to be achieved as far as possible, is to have the whole thing written out and got by heart;^[398] but he knows also the importance of cultivating the ability to speak extempore,^[399] and so comes down to a reasonable recipe for the busy pleader:^[400] write out the most necessary bits, especially the opening; prepare most of the rest at home in the mind, not necessarily verbatim (it is not utterly disgraceful to hold an aide-memoire in your hand), and leave the remainder to be dealt with extempore. The ideal, evidently, is quite closely related to theatrical perform­ance, and there is in Quintilian’s Institutes a mass of detail about gesture, deportment and dress. That is the side of the advocates’ business that leads people to think it was nihil ad ius - a branch rather of the entertainment industry than of the law.

There is no doubt that even the great practitioners went by the book - and then, of course, diverged, even greatly, according as the case demanded; and the very divergence added point and piquancy to the performance.^[401] It amused Cicero, for example, to watch Hortensius counting off his diuisiones �heads of argument’ on his fingers.^[402] (Indeed, Hortensius’ vast success was a puzzle: Quintilian says his written speeches are wooden productions, and opines that everything must have depended on marvellous delivery, yet when he and Cicero pleaded in the same cause it was Hortensius, usually, who did the spade-work and left the emotional frills to Cicero.)^[403] A further thing expected of an advocate was wit and repartee. Cicero was actually held by the generation of his successors to have overdone the �funny man’;^[404] that may be news to schoolboys, but is an important feature of his style as an advocate of which not enough notice is taken: what sounds to us outrageous may, in a given context, have been intended to sound outrageous. And then the advocate had to be also a master of invective, although Quintilian advises that it is a mistake to abuse your adversaries even if your client would like you to (which brings us back to the point that part of the function of advocacy is to let off your client’s steam for him). As for abuse of the opposing advocate, that is contrary to the communia officia, the �good customs of the profession’.^[405] Of course, to allege that he’s devilish clever and warn the jury against his wiles is not abuse but flattery!

A persistent theme, on the criminal side, is the embarrassment of being advocate for the prosecution. Once men were successful they did not do it: it was work for adulescentuli wishing to make a name for themselves.^[406] Certainly at the very least you must avoid the reputation of being nothing but a prosecutor,^[407] and when you did it you had to do so with the greatest apparent reluctance.^[408] On the other hand, it was, admittedly, a public duty that the guilty should be brought to book, so a man must not always turn down appeals to prosecute:^[409] Pliny in a letter gives a careful justification for his prosecutions.^[410]

The other side of that coin is defence of the guilty, or, at any rate, of someone the advocate thinks may be guilty. That has always been a problem in criminal jurisprudence, and, along with its fellow-problem about the defence of superior orders, has no ideal answer, only a balance between evils. The celebrated remark of Dr Johnson on the subject,^[411] �Sir, you do not know it to be good or bad till the judge determines it’, is a sophistry. Cicero in the de officiis gives as his justification that the philosopher Panaetius accepted the necessity.^[412] Quintilian, after a not very good account of the problem at one point in the Institutes, makes, a bit further on, one good practical suggestion (though probably with civil litigation in mind rather than criminal prosecution): if you have to relinquish a case because you have become convinced that your client is in the wrong you must at least give him notice.^[413] The acid test would, of course, be a case in which the advocate actually knew, as opposed to merely thinking, that his client was guilty: we do not meet with such a case in the sources. Otherwise, the general justification seems to be that a defendant in an �adversary system’ is entitled to acquittal if he can win on the arguments and entitled to have the arguments put with all possible force and skill.^[414]

Another question, not unrelated, is whether an advocate should allege things he knows to be false in furtherance of his client’s victory. Stating opinions, merely, that you did not personally hold would have been distinguished, and not regarded as necessarily reprehensible. Cicero, once, in an effort to extricate himself when caught out, made a comment that has become a stick to beat him with: �I am called in to say not what constitutes my own legal opinion but what arises from the circumstances of the case.’^[415] Studied irrelevance, too, will be a perfectly accepted part of the advocate’s armoury in any �adversary system’, on the basis that the other side has its chance to exercise vigilance and equal skill. What we should find unacceptable today would be the utterance of deliberate falsehoods about fact or law; and the contextual feature that would make that seem even worse in the Roman case is that in that legal order there was no professional judge present to nail the lie. However, the fact is that in no instance do we know for certain that Cicero or any of the others was alleging fact or law that he knew (let us stress �knew’) to be false.

Clarke, viewing his chosen subject with surprising distaste, claimed that it was obedience to the rhetorical textbooks through thick and thin that led the Roman advocates into irrelevance.^[416] The handbooks, he argued, were based on the Greek assumption of one speech per side, and were inappro­priate when it became the rule, through comperendinatio and multiple advocacy, to have more than one; the fact that speeches came before evidence obliged advocates to limit themselves to generalities because they did not know what the other side’s case was going to be; and the appeals to favour and pity also arose out of the Greek legal order in which the accused spoke on his own behalf. Clarke’s account is not very cogent. Roman advocates used rhetorical precept just as far as it suited them, and, anyhow, we have seen how the handbooks took into account the realities of actio secunda; and most readers of Cicero’s orations would see them as crammed with �specifics’ as well as generalities. But, further, Clarke does not sufficiently allow for the element of entirely calculated irrelevance that scholars have been recently emphasising in the speeches of Cicero, as of the Attic orators.^[417] He says, for example, that in the pro Murena

IV. Advocacy in the traditional material 141 the charge and its refutation play only a minor role:¹⁴² quite so but that was the whole point and purpose of Cicero’s conduct of that case. In the pro Sestio not only the middle section as Clarke asserts, but in a sense the entire speech was, in litigatory farms, superfluous: it was a platform for Cicero to deliver a political manifesto. As to the appeals to favour and pity, the fact that they were not in propria persona is insignificant (and the Greek ones, as we saw, were written by someone else); what matters is that they were functional, because although the court, under the quaestiones, could not vary the penalty on a hard-luck story it could simply acquit. The ancient orators were not nincompoops, nor were their hearers: un-calculated irrelevance - pleading in a way not suited to advance your cause - met with scorn. Cicero makes merry in the de oratore over advocates pleading all wrong (in iure, it may be noted); Gellius, too, has an anecdote about an irrelevant pleader.¹⁴³ But when they wanted to create a diversion they were masterly. When M, Antonius defended C. Norbanus on a charge of maiestas he got him off largely by irrelevance: Cicero puts the story into his mouth in the de oratore;¹⁴⁴ in the Brutus he says that Servius Galba only escaped the clutches of the aged Cato in his last prosecution by an appeal to pity.¹⁴⁵ And according to Macrobius Cicero got L. Flaccus off with a bon mot.¹⁴⁶

What if the advocate lost his client’s case? We need not consider that question from the standpoint of the advocate, who might simply be denied his fee;¹⁴⁷ the more important question is as to the client and the case. There is evidence, though all late in date, that relief might be obtainable on the plea that the advocate had not put his client’s case properly. A papyrus of about AD 217-18¹⁴⁸ contains a private letter from a woman to her friends and relatives in the country, telling them what she has

¹⁴² See Pliny, Ep. I 20,7 for the implication that there was much more.

¹⁴³ Cic. de or. 1166 and 168; Gell. NA I 22,6 - and the story of Caepasius Senior told on pp. 126-7, above.

Cic. de or. II89 and 197f.

145

146

Cic. Brut. 89...,

Macrob. Sat. Ill 13,3: it did not appear in the published version an ® been up to in the â€?big city’, in relation, evidently, to some family litigation: mempsamene de kai ton rhetora eph’hois ou paretheto той dikaiois "... and complaining about the advocate as to my rights (or, perhaps, â€?claims’) that he did not lay on the line’. There are also some relevant juristic passages; and we may begin with one in Ulpian’s commentary on the Edict, under the rubric about restitutio in integrum allowed to minors:¹⁴⁹ â€?But if the emperor has already given a judgment he only very rarely permits the case to be restored and allows appearance in his auditorium to one who says he was a victim of the inexperience of youth, claiming that things in favour of his case were not spoken¹⁵⁰ or complaining that he has been let down (proditurri) by his advocates.’¹⁵¹ Restitution on such grounds came not to be confined to minors. The Justinian Code¹⁵² records a ruling of Diocletian denying a woman restitution because she had failed to protest before judgment: â€?Suits terminated by judgment cannot be revived by rescript. The provisions laid down ut aduocatorum error litigatoribus non noceat “that error of advocates is not to prejudice litigants” cannot avail you, because you do not claim that you protested in person or immediately upon the case, i.e. in the next three days, nor did you avail yourself of the remedy of appeal after judgment, if you were dissatisfied with it.’ The implication is that a complaint on that ground, correctly made, was capable of leading to restitutio in integrum·, and in the Theodosian Code there is a slightly later constitution¹⁵³ stating a general rule that â€?mistakes of advocates in a relevant court are not to prejudice litigants’.¹⁵⁴ All that material probably applied only to the cognitio extra ordinem, and relief on such grounds must have been made hard to get, otherwise everyone who, having had an advocate, had lost his case would have â€?tried it on’.

known through the malicious Furius Bibaculus. See also Asinius de ence,

¹⁴⁷ Or part of it, as in Mart. VIII 17, quoted on p. 131, above. D.4.8.31.envisages a remedy against a party (to an arbitrium ex compromise), who has corrup

party’s advocate.

¹⁴⁸ P.Oxy. 3094.

â€?Nihil hoc ad ius: ad Ciceronem’:¹⁵⁵ that remark, already quoted several times in these pages, has done much harm to the historical cause of the advocates and been the favourite brickbat

¹⁴⁹ D.4.4.18.1

¹⁵⁰ Reading non dicta for cod. dicta non.

¹⁵¹ Note the plural.

¹⁵² CJ 2.9 (10) {de errore aduocatorum}. 3, AD 294.1 owe the reference to Prof. HonorĂ©.

¹⁵³ CTh 2.11 (de erroribus aduocatorum}. 1, ad 320.

¹⁵⁴ Though the Interpretatio adds:. provided that immediate protest has been made as to the specific error.’

¹⁵⁵ Cic. Top. 51; see p. 40, above. for hurling at the role of advocacy in the legal order in the Roman age. â€?This is nothing to do with law: it’s Cicero’s affair.’ So it gets translated, and we are asked to conclude that advocacy had nothing to do with law. But that is a non sequitur. Perhaps one should begin by not failing to notice that Cicero himself quotes the remark as what the jurist Aquilius Gallus â€?used to say’ when people tried to tempt him into the domain of the facts; and although Cicero was not devoid of a sense of humour and the Topica were written for young Trebatius, for whom he loved trotting out rather heavy, avuncular jokes, it is unlikely that he would have quoted against himself something he supposed to be an insult to his way of life, especially from the lips of a man he claimed as a friend. No: when anybody took a question of fact to Aquilius Gallus, and Gallus said: â€?This is not law, (it’s fact): it’s for Cicero’, the implication is, indeed, that matters of fact are not for the jurist; but the proposition is not convertible, and does not necessarily imply that matters of law are not for the advocate. The advocates saw themselves as having the wider range, carrying on where the jurists stopped. They regarded the jurists as failed advocates¹⁵⁶ and as ancillary to themselves,¹⁵⁷ and held a sound knowledge of the law to be, at best, a useful and important part of the advocate’s armoury like history and philosophy.¹⁵⁸ But the facts were their territory - facts in the context of the law. Every case in a court of law involves a set of alleged facts as well as a set of legal principles, and most of the business of advocates at most times is with matters where the rules of law are not in doubt, only their application to the instant case. One intelligent emperor expressed it well:¹⁵⁹ â€?The late emperor Pius gave a rescript to Tullius Balbus that said that whether mora (delay) has occurred cannot be settled by any imperial pronouncement or jurisprudential discussion, because it is magis facti quam iuris “matter of fact rather than law”.’ In modern legal orders the roles of advocate and jurist are combined in the same persons, and that makes less obvious than it would otherwise be the fact that both roles are necessary and structural to the daily practice of the law: what the advocates did was not

¹⁵⁶ Quint. Inst. XII 3,9.

¹⁵⁷ Ibid. XII 3,4, tela subministrant·, Cic. Top. 65.

¹⁵⁸ See the speech of M. Antonius in Cic. de or. I 201-62 (especially 218), referred to on p. 40, above.

¹⁵⁹ D.22.1.32pr.

nihil ad ius.

Nor was it so when they were quoting precedents in support of their cases. The Egyptian evidence has shown the role of advocacy coming more and more to be the drawing to the judge’s notice of relevant rulings. Quintilian^[418] explains that res iudicatae, decided cases, are exempla, to be adduced for the court’s consideration. He knows about �distinguishing’, though he does not discuss the problem how you determine a ratio decidendi because he is talking in the context of how an advocate will make use of proof-methods for persuasive ends, i.e. he is - admittedly - talking technique, not theory of law. But he makes it plain that the advocate will have no truck with any mechanical rule of stare decisis·, rogandi indices ut rem potius intueantur ipsam �the judges should be asked, rather, to keep their sights on the case in front of them’; he contrasts that expressly with the rule about senatusconsulta and decreta, which must be followed.

The topic of witnesses was fleetingly touched on in Chapter I above. We get a perfectly sensible impression of the questioning of witnesses in the papyri, but that is done by the magistrate, and, unfortunately, it is practically all we have, because the published versions of Cicero’s speeches did not retain (and perhaps nobody ever bothered to take down) the actual interrogations, though Cicero talks about what the witnesses have said. Scholars tell us^[419] - though it is not particularly borne out by the papyri or by Quintilian, to whom we shall presently come - that the Romans, like the Greeks, had what seems to us a wrong idea of what witnesses were for: not so much to provide evidence about particular facts as to be of such status as by their auctoritas to corroborate the general respectability of the litigant as against the opponent.^[420] We recall how masterly Cicero is at making witnesses appear to be upright citizens and pillars of society when they are on his client’s side and venal and shifty (and non-citizens into the bargain) when they are on the other side;^[421] but we do not

IV. Advocacy in the traditional material 145 actually know how effective that technique was with the indices, and it does not help us to estimate the importance in the advocate’s task of the examination of particular witnesses. Testimony could be given in written form: very illuminating are the written testimonies preserved in the �Herculaneum Tablets’ of the first century AD,^[422] in which a number of people testify whether or not the mother of the female petitioner was still a slave or was already a freedwoman at the time of the petitioner’s birth. Testimonies were submitted on both sides of the argument, and we have no idea how the advocate or the judge went about evaluating them. Quintilian has a section de testibus,^[423] in which he talks first about handling the witness who has come forward on his own account and then about the subpoenaed witness, first in relation to the prosecutor’s and secondly the defendant’s advocate. He complains that the schools give neither bookwork nor practicals on this branch of advocacy, but all he can himself suggest is a course of Socratic dialogues! Quintilian’s account is characteristic in its good sense, but it certainly is no more than a set of �tips’ for the practitioner in trying to win approval for his client’s case;^[424] no �Theory of Proof is to be found here.

Let this chapter end with one more word about the great master, to make just one point. Cicero was not a typical Roman advocate. He was an intellectual, with astonishing, quick gifts: the ability to pick up subjects like history and philosophy with ease - superficially, if you like - and to be genuinely interested in and fascinated by them. He loved jargons and technicalities; not least, he loved using legal �terms of art’ and debating legal points. We can be confident that Cicero genuinely knew some law, for he had done what many had not: actually studied law, under Mucius the augur, before he went on to his Greek studies of rhetoric.^[425] And, for a reason that recent work on Republican law has demonstrated,^[426] we ought to be less prone than scholars used to be to declare Cicero ignorant when what he asserts about the law fails to correspond with what we know the �classical’ law to have been, because Cicero’s period of law was significantly �pre-classical’. Cicero did not handle the law jurisprudentially but in the practical spirit of the advocate, yet it was he, the intellectual, who was closer to the Hellenised Zeitgeist, he, not the jurists, who believed you could and should reduce the law to an ars, and wrote about it.^[427] He would, like Quintilian, have regarded the jurists who were his friends as having got stuck in a rut. You may say �But that is absurd, for it was they who were making the law, not Cicero’. Exactly so: they were making it; but he was doing it.