§ 1. The origin and subsequent office of Advocates were not the same. For in the beginning, when men went to join hands at law, they were accustomed to call upon friends who would aid them by authority and counsel. Afterwards, when this was little protection amid subtleties, they called upon men experienced in law and statutes, whose duty it was to give answers concerning law. They did not themselves judge, but, when consulted, gave answers concerning law, pleaded causes, and assisted Magistrates. The Count of the East had forty in his forum. Their dignities began when they departed from office. Sidonius, book 1, epistle 2: “After the fashion of Advocates, whose dignities begin when their pleadings end.” For from them Consistorial Counts were created, Code, On the Advocates of Various Courts. Others attained the most ample dignities. Certainly at Rome they obtained a Magistracy through defending defendants and conducting causes as readily as through the dangers of wars. Scipio’s Scribe was preferred to Scipio’s son.
And would that now too there were a most rigorous selection of Advocates and the promotion of the selected men to the highest places. Would that pettifoggers, brawlers, vultures of the forum, abysses, plagues of cities, purple-fish of the benches, barkers, and architects of fraud—who beset all things, weave lawsuits, and oppress justice—might at last be restrained, and great honor be accorded to true Advocates.
§ 2. Many things were formerly granted to them which adorn the study of law. The things acquired by Advocates have the character of a military peculium; this was granted in honor of studies so that sons under paternal power may claim ownership for themselves: chapter 2, title 7, On the Advocates of Various Courts.
No solicitude of a province can be imposed upon them, according to Theodosius and Valentinian; and this was granted although there were many of them, for the Praetorian Advocacy was limited to 150 men in the toga.
Indeed, they formerly underwent an Examination, as they still do now, just as the law says: “To no one,” chapter 2, title 7.
Two years are granted to them, whereas before they served for one year, under the same title 8. The privileges of Advocates and Patrons of the Treasury are many. What is more remarkable, Agents in Affairs were also honored with the distinctions of Princes, Code 12, title 22, Agents.
§ 3. Next to Advocates were Notaries and Procurators. In the German Empire it was provided that no Notary should be admitted to the Chamber Court unless he either had testimony from his own state or was examined by the Chamber Court: Augsburg, year 1500. At the same Diet all are ordered to be reformed and examined. Procurators are prohibited from being Advocates, and conversely, at the Diet of Augsburg in the year 1500. In the same place it was established that Procurators and Advocates should be content with the fee fixed by the Assessors of the Chamber; if they received more, they were to restore it to the parties, and affirm by oath that they would do so. No Procurator is accepted unless he has been thoroughly examined. Procurators of the treasury are prohibited from undertaking causes of private persons, and conversely.
The oath of Advocates proposed at Speyer in the year 1535 is of the greatest importance for justice. The Advocates will enter all opinions, together with the names of those judging, in a book designated for this purpose by the Protonotaries of the Chamber.
It is assuredly very remarkable that amid so many oaths of the parties, Advocates, and Procurators there is still room for lawsuits. A Procurator takes the oath against calumny: that he believes his cause to be just, that he will not seek an unnecessary delay, and that he will not seek a dangerous one. The oath of the Advocate is more severe, so that I marvel greatly how men so learned can sin through ignorance.
§ 4. Many contests have made Scribes costly among us. Their esteem is no less among foreign peoples. In 2 Esdras 4:8, Sampsai the Scribe is placed second. Among Alexander’s men Eumenes was held in honor. At Rome Scribes were base. Valerius, book 4, chapter 5, relates as an unworthy thing that Cicero, a scribe of Africanus, was preferred to Africanus’s son in seeking the Praetorship. But in the rest of Italy their estimation was greater. Mucius Scaevola killed a purple-clad Scribe seated with King Porsena; so great was his likeness to the King that Scaevola himself thought him the King. At Rome those who took part in councils possessed greater dignity, as Chancellors and Secretaries now do; the others were ordinary.
§ 5. Cato beat down the insolence of Scribes. Thus Plutarch: ὅθεν εὐθὺς εἰς τὴν ἀρχὴν καταστὰς μεγάλην ἐποίησε μεταβολὴν τῶν περὶ τὸ ταμεῖον ὑπηρετῶν καὶ γραμματέων, οἳ διὰ χειρὸς ἀεὶ τὰ δημόσια γράμματα καὶ τοὺς νόμους ἔχοντες, εἶτα νέοις ἄρχουσι παραλαμβάνοντες δι’ ἀπειρίαν κἀγνοιαν ἀτεχνῶς διδασκάλων ἑτέρων ἢ παιδαγωγῶν δεομένοις οὐκ εἴωντο ἐξουσίᾳ χρῆναι, ἀλλ’ ἦσαν ἄρχοντες αὐτοί. “Cato,” he says, “because it belonged to the office of Quaestor, learned it diligently; and as soon as he entered upon the Quaestorship he recast and reformed the Quaestorian assistants and Scribes. Since they always had the public records and laws ready to hand, if they encountered new Magistrates whose inexperience and ignorance stood in need of teachers, they did not permit them to exercise their Magistracy, but were themselves the Magistrates.”
This must be considered and imitated very carefully by a Prince, for nothing is more arrogant or avaricious than those formulary-writers when they have the Prince’s inexperience in their power.
The Commentarienses were a class of Scribes who recorded in their own hand the acts before the Treasury and had charge of registered prisoners. Indeed, they also guarded men in bonds. The assistant of the Commentarienses was the Optio, a name also extended to other offices; the same men were likewise called Proximi, assistants, and sub-assistants.
The Actuaries wrote not the proceedings of litigants before a Judge but the acts of contracting parties; they also entered the names of soldiers upon the roll.
Different from these were the Formulary-writers, who recited to the people the forms of actions. Spartianus in Geta records an Advocate of the Treasury selected from among the Formulary-writers. And now they earn salaries almost beneath the Chancellor.