ADVOCA´TUS
ADVOCA´TUS seems originally to have signified any
person who supported another in a cause or other business, as a witness for
instance (Varro,
de Re Rust. 2.5), or as an
assistant in taking possession of disputed property (
Cic. pro Caec. 8, § 22). It was
specially used in the time of the republic for a person who accompanied a
party to an action into court, in order to give him legal advice or the
support of his presence. The advocatus did not, like the orator or patronus,
speak on behalf of the party he was assisting. (Schol.
ad Cic.
Divin. 1.11, Orelli, p.
104.) Under the empire the terms patronus and advocatus ceased to be
distinct in meaning. (
Tac. Ann. 10.6.）
Advocatus then meant a person who in any way assisted another in conducting
an action in court. (
Dig. 50, tit. 13, s. 1.) The
great jurists sent written opinions (
responsa),
and were not themselves present at the hearing of causes. The office of
advocate was originally regarded as a purely honorary one. The Lex Cincia
(550 A.U.C.) expressly prohibited patroni from
taking any remuneration for their services. Under Augustus, advocati who
accepted pay were made liable to a penalty (
D. C.
54.18). Claudius allowed advocati to take fees not amounting to
more than 10,000 sesterces. (Tac. 13.5; Quint. 12.7.11.) Diocletian made
further regulations as to the amount of the fee. The fee was not recoverable
as due on a contract of letting and hiring (
locatio
conductio), but payment of it, as a honorarium, was enforced
by the magistrate under his
extraordinaria
cognitio.
There came to be attached to each court of justice under the empire a limited
number of advocates, who had a monopoly of practice. Such advocates
(
statuti) were appointed by the judge of
the court to which they belonged, their names being entered on a register
(
matricula) kept for the purpose. The
advocates of each court constituted a corporation.
The advocatus fisci, an officer instituted by
[p. 1.31]Hadrian
(Spart.
Hadr. 60), was the first in rank of such advocates.
It was his business to look after the interests of the fiscus or the
imperial treasury, and, among other things, to maintain its title to
bona caduca. The various meanings of
advocatus in the Middle Ages are given by Du Cange,
Gloss.
(
Dig. 28, tit. 4, s. 3; Hollweg,
Civil-Prozess, 1. § § 16, 17.)
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