CH. III.]

THE JUDICES.

93

but by the Sempronian law, B. c. 123, of which Tiberius Gracchus was the author, this right or privilege was transferred from the senators to the equestrian order; and the latter enjoyed it for nearly fifty years, until Sylla, B. c. 80, deprived them of it, and restored it to the senators. By a later law, the Aurelia Lex, passed B. C. 70, it was enacted that the judices should be chosen from the senators, the knights, and the tribuni ærarii; the last of whom were taken from the body of the people. These formed the three decuriæ of judges, which existed until Julius Cæsar reduced them to two, by removing the decuriæ of the tribuni ærarii. The number that sat at a trial is uncertain; but it seems to have varied from fifty to seventy. After the reign of Augustus, the album judicum contained the names of all who were qualified to serve either on civil or criminal trials, and these amounted to not less than four thousand.1

Such, then, was the nature of the Roman law, and such were the tribunals before which the advocate had to practise. The account has perhaps been tedious; but we shall find more to interest us, as we proceed to consider some of the peculiarities attending the exercise of his profession in the Eternal City.

On the difficult and perplexing question of the judices at Rome, see the able article headed Judex in Smith's Dict. of Greek and Rom. Antiq. by Mr. George Long.

CHAPTER IV.

ADVOCACY IN ANCIENT ROME.

Hi clientelis etiam exterarum nationum redundabant; hos ituri in provincias magistratus reverebantur; hos reversi colebant; hos et Præturæ et Consulatus vocare ultro videbantur; hi ne privati quidem sine potestate erant, cum et populum et senatum consilio et auctoritate regerent. TACITUS.

THE word Orator in the Latin language had a more extensive application than with us. We generally confine it to those who pre-eminently excel in eloquence; whereas the Romans spoke of all as oratores, who accustomed themselves to public speaking, either in the popular assemblies or in the courts of law. Therefore all advocates were orators in this sense, and Cicero constantly speaks of them as such. When he wishes to express a contemptuous opinion of a speaker, he calls him mediocris, or sane tolerabilis, or even malus, O. And the reason why he so seldom uses any other term than this, seems to be owing to one of the most remarkable points of difference between the profession of the bar in ancient and in modern times.

For we must not forget that at Rome there was no line of demarcation drawn between the advocate and the statesman. While appearing in the cause of his client, the eloquent speaker was, in fact, acquiring that popularity and influence which placed all public honours within his grasp. He was not, as with us, obliged to devote himself for years exclusively to legal studies, and endeavour to approve himself by success in his profession a sound and able lawyer, before he dared to enter upon

CH. IV.]

PATRON AND CLIENT.

95

public life. In England a man does not emerge from the courts until he is of mature age, and his habits of thought and powers of speaking have been exercised and moulded there for so long a time, that he is almost unfit to contend in the new arena into which he is suddenly introduced. This is the chief reason why lawyers are so often said to fail in parliament, and why so few of them deserve the praise which Horace bestowed upon Asinius Pollio

"Insigne mœstis præsidium reis,

Et consulenti, Pollio, curiæ." 1

For

But the more technical name given to those who practised in the courts at Rome was that of Patroni Causarum, or simply Patroni; and the parties whom they there represented were called their Clientes. the origin of these terms we must refer to one of the most peculiar of the political, or rather social, usages amongst the Roman people. This was the relation that subsisted between the patron and client, which may be traced back to the earliest times, and was founded upon a theory of reciprocal obligation and support.

2

"How the clientship arose," says Niebuhr, "admits as little of an historical exposition as the origin of Rome." 3 'These lines are better than the couplet in which Pope complimented Murray, afterwards Lord Mansfield, when at the bar :

"Grac'd as thou art with all the power of words,

So known, so honour'd at the House of Lords."

The last line referred to a successful speech made by Murray at the bar of the House of Lords, after which he said that his income rose from nothing to three thousand a year.

The parody, by Colly Cibber, is well known : —

"Persuasion tips his tongue whene'er he talks,

And he has chambers in the King's Bench walks."

See Heineccii Syntagma; Brumerii ad legem Cinciam comment.; Polleti, Historia Fori Romani.

Without, therefore, attempting to explain what his profound genius has declared to be hopelessly obscure, we may content ourselves with the following summary which he has given of the duties arising out of that relation. "But all, however different in rank and consequence, were entitled to paternal protection from the patron; he was bound to relieve their distress, to appear for them in court, to expound the law to them, civil and pontifical. On the other hand, the clients were obliged to be heartily dutiful and obedient to their patron, to promote his honour, to pay his mulets and fines, to aid him, jointly with the members of his house, in bearing burthens for the commonwealth and defraying the charges of public offices, to contribute to the portioning of his daughters, and to ransom him or whoever of his family might fall into an enemy's hands." I

Amongst these duties of the patron, not the least important was that of defending the rights of his client when attacked in a court of law, and throwing the shelter of his name and influence around his poorer dependant, when his property or liberty was threatened. We may easily imagine how, in such cases, the client resorted to his patron for advice, before it was necessary to claim his protection; and how, when he was interested in a question of construction of the Twelve Tables, or in the interpretation of some obscure prætorian edict, he referred the matter to the wealthy and educated patrician and relied upon his opinion. In proportion as the state of

1 Hist. of Rome, i. 279.

How strongly this description reminds us of the ancient feudal aids which were rendered by the vassal to his lord. These were principally three: 1. to ransom the lord's person if taken prisoner; 2. to make the lord's eldest son a knight; 3. to provide a portion for the lord's eldest daughter on her marriage. Blackstone, in his Commentaries, ii., 63, 64., has pointed out the resemblance.

CH. IV.]

MEANING OF ADVOCATUS.

97

society became less simple and transactions more complicated, the necessity for these applications to the patron became more frequent, and it is not difficult to see how, in the case of a patron who had numerous clients, when a habit of answering legal questions arose, others who did not stand in that relation to him, would seek to avail themselves of the benefit of his knowledge and experience. And thus, in the course of time, the delivery of legal opinions became the ordinary occupation and almost profession of some learned men at Rome.1 The name of Tiberius Coruncanius, who was consul B. C. 281, has been handed down to us as the first person who publicly adopted this practice. The transition of the name, from the patron who gave his client the benefit of his opinion and counsel in legal difficulties to the advocate who openly espoused the cause of another in a court of justice, is too obvious to require proof.

The term Advocatus was not applied to a pleader in the courts until after the time of Cicero. Its proper signification was that of a friend, who, by his presence at a trial, gave countenance and support to the accused. It was always considered a matter of the greatest importance that a party who had to answer a criminal charge should appear with as many friends and partisans as possible. This array answered a double purpose; for, by accompanying him, they not only acted as what we should call witnesses to character, but by their numbers and influence materially influenced the decision of the tribunal. Not unfrequently (when some noble Roman, who had gained popularity in his provincial government, had to defend himself against an accusation,) an embassy

These correspond in a striking manner with the Bewustas of the Hindu, and the Futwas of the Mahommedan, Pundits.

F