Chapter XV.

An Athenian Court Trial.

114. The Frequency of Litigation in Athens.—The visit to the Peiræus

and the study of the shipping have not been too long to prevent a brief

visit to one of the most characteristic scenes of Athenian life—a law

court. Athens is notorious for the fondness which her citizens display

for litigation. In fact it is a somewhat rare and exceptionally

peaceable, harmless, and insignificant citizen who is not plaintiff or

defendant in some kind of action every few years or so. Says

Aristophanes, “The cicada [grasshopper] sings for only a month, but the

people of Athens are buzzing with lawsuits and trials their whole life

long.” In the jury courts the contentious, tonguey man can spread

himself and defame his enemies to his heart’s content; and it must be

admitted that in a city like Athens, where everybody seems to know

everybody else’s business almost every citizen is likely to have a

number both of warm friends and of bitter enemies. Athenians do not

have merely “cold acquaintances,” or “business rivals,” as will men of

the twentieth century. They make no pretenses to “Christian charity.”

They freely call an obnoxious individual their “personal foe”

(_echthros_), and if they can defeat, humiliate, and ruin him, they

bless the gods. The usual outlet for such ill-feeling is a fierce and

perhaps mutually destructive lawsuit.

Then too, despite Athenian notions of what constitutes a gentleman,

many citizens are people of utterly penurious, niggardly habits.

Frequently enough the fellow who can discuss all Socrates’s theories

with you is quarreling with his neighbor over the loan of salt or a

lamp wick or some meal for sacrifice.[*] If one of the customary

“club-dinners”[+] is held at his house, he will be caught secreting

some of the vinegar, lamp oil, or lentils. If he has borrowed

something, say some barley, take care; when he returns it, he will

measure it out in a vessel with the bottom dented inward. A little ill

feeling, a petty grievance carefully cultivated,—the end in due time

will be a lawsuit, costly far out of proportion to the originating

cause.

[*] Persons of this kidney are delineated to us as typical characters

by Theophrastus.

[+] The nearest modern equivalent is a “basket lunch.”

115. Prosecutions in Athens.—Athens does not draw a sharp line between

public and private litigation. There is no “state” or “district

attorney” to prosecute for the offenses against public order. Any full

citizen can prosecute anybody else upon such a criminal charge as

murder, no less than for a civil matter like breach of contract. All

this leads to the growth of a mischievous clan—the _sycophants_. These

harpies are professional accusers who will prosecute almost any rich

individual upon whom they think they can fasten some technical offense.

Their gains are from two quarters. If they convict the defendant,

about half of the fine or property taken will go to the informer. But

very likely there will be no trial. The victim (either consciously

guilty, or innocent but anxious to avoid the risk) will pay a huge

blackmail at the first threat of prosecution, and the case is hushed

up.

It is true there are very heavy penalties for trumped-up cases, for

unwarranted threat of legal proceedings, for perjured evidence; still

the abuse of the sycophants exists, and a great many of the lawsuits

originate with this uncanny tribe.

116. The Preliminaries to a Trial.—There are official arbitrators to

settle petty cases, but it is too often that one or both parties

declare “the dicasts must settle it,” and the lawsuit has to take its

way. Athenian legal methods are simple. Theoretically there are no

professional lawyers, and every man must look out for himself. The

first business is to file your complaint with one of the magistrates

(usually one of nine _archons_), and then with two witnesses give

formal summons to your opponent, the defendant, to appear on a set day

in court. If he has defaulted, the case is usually ended then in your

favor. This hearing before the magistrate is in any event an important

part of the trial. Here each side proffers the laws it cites to

sustain its claims, and brings its witnesses, who can be more or less

cross-examined. All the pertinent testimony is now written down, and

the tablets sealed up by the magistrate. At the final trial this

evidence will be merely _read_ to the jury, the witness in each

instance standing up before the court and admitting when duly asked,

“This is my testimony on the case.”

Free men testify under oath, but a slave’s oath is counted worthless.

The slaves may be the only important witnesses to a given act, but

under only one condition can they testify. With the consent of their

master they may testify _under torture_. It is a critical moment at

this hearing when a litigant who is confident of his case proudly

announces, “I challenge my enemy to put my slaves under torture”; or

the other, attacking first, cries out, “I demand that my enemy submit

his slaves to torture.” Theoretically the challenged party might

refuse, practically a refusal is highly dangerous. “If his slaves

didn’t know something bad, why were they kept silent?” the jury will

ask. So the rack is brought forth. The wretched menials are stretched

upon it. One must hope that often the whole process involves more show

of cruelty than actual brutality. What now the slaves gasp out between

their twists and howls is duly taken down as “important evidence,” and

goes into the record.[*]

[*] Athenian opinion was on the whole in favor of receiving as valid

testimony the evidence extorted thus from slaves by mere animal fear.

Antiphon the orator speaks of how truth may be wrung from slaves by

torture; “by which they are compelled to speak the truth though they

must die for it afterward [at the hands of the master they have

incriminated], for the present necessity is to each stronger than the

future.” This has been well called one of the few cases of extreme

_stupidity_ on the part of the Athenians.

117. The Athenian Jury Courts.—A convenient interval has elapsed since

one of these preliminary hearings. To-day has been set for the actual

trial before a member of the archons in the “Green” court. Ariston, a

wealthy olive farmer, is suing Lamachus, an exporter of the Peiræus,

for failing to account for the proceeds of a cargo of olives lately

shipped to Naxos. To follow the trial in its entirety we should have

been at the courthouse at first dawn. Then we would have seen the

jurymen come grumbling in, some from the suburbs, attended by link

boys. These jurors represent a large fraction of the whole Athenian

people. There are about six thousand in all. Pretty nearly every

citizen above thirty years of age can give in his name as desiring jury

duty; but naturally it is the elderly and the indolent who must prefer

the service. One thousand of the six act as mere substitutes; the rest

serve as often as the working of a complicated system of drawing by lot

assigns them to sit as jurors on a particular case. It is well there

are five thousand always thus available, for Athenian juries are very

large; 201, 401, 501, 1001 are numbers heard of, and sometimes even

greater.[*] The more important the case, the larger the jury; but

_Ariston_ v. _Lamachus_ is only a commonplace affair; 401 jurors are

quite enough. Even with that “small court,” the audience which the

pleaders now have to address will seem huge to any latter-day lawyer

who is accustomed to his “twelve men in a box”; and needless to say,

quite different methods must be used in dealing with such a company.

[*] The odd unit was no doubt added to prevent a tie.

Each “dicast” (to use the proper name) has a boxwood tablet to show at

the entrance as his voucher to the Scythian police-archers on duty; he

has also a special staff of the color of the paint on the door of the

court room.[*] The chamber itself is not especially elegant; a long

line of hard benches rising in tiers for the dicasts, and facing these

a kind of pulpit for the presiding magistrates, with a little platform

for orators, a small altar for the preliminary sacrifice, and a few

stools for attendants and witnesses complete the simple furnishings.

There are open spaces for spectators, though no seats; but there will

be no lack of an audience today, for the rumor has gone around,

“Hypereides has written Ariston’s argument.” The chance to hear a

speech prepared by that famous oration-monger is enough to bring every

dicast out early, and to summon a swarm of loiterers up from the not

distant Agora.

[*] Each court room had its distinguishing color. There were about ten

regular court rooms, besides some for special tribunals; _e.g._ the

Areopagus for the trial of homicides.

118. The Juryman’s Oath.—The dicasts are assumed to approach their

duty with all due solemnity. They have sworn to vote according to the

laws of Athens, never to vote for a repudiation of debts, nor to

restore political exiles, nor to receive bribes for their votes, nor

take bribes in another’s behalf, nor let anybody even tempt them with

such proffers. They are to hear both sides impartially and vote

strictly according to the merits of the case: and the oath winds up

awfully—“Thus do I invoke Zeus, Poseidon, and Demeter to smite with

destruction me and my house if I violate any of these obligations, but

if I keep them I pray for many blessings.”[*]

[*] We have not the exact text of all the dicasts’ oath, but we can

reproduce it fairly completely from Demosthenes’s _Oration against

Timocrates_.

119. Opening the Trial. The Plaintiff’s Speech.—The oath is admirable,

but the dicasts are not in a wholly juridical state of mind. Just

before the short sacrifice needful to commence proceedings, takes

place, old Zenosthenes on the second row nudges his neighbor: “I don’t

like the looks of that Lamachus. I shall vote against him.” “And I—my

wife knows his wife, and—” The archon rises. The crier bids,

“Silence!” The proceedings begin: but all through the hearing there is

whispering and nudging along the jurors’ benches. The litigants are

quite aware of the situation and are trying their best to win some

advantage therefrom.

Ariston is the first to speak. He has taken great pains with the folds

of his himation and the trim of his beard this morning. He must be

thoroughly genteel, but avoid all appearances of being a dandy. In

theory every man has to plead his own case in Athens, but not every man

is an equally good orator. If a litigant is very inept, he can simply

say a few words, then step aside with “My friend so-and-so will

continue my argument”; and a readier talker will take his place.[*]

Ariston, however, is a fairly clever speaker. Having what he conceives

a good case, he has obtained the indirect services of Hypereides, one

of the first of the younger orators of Athens. Hypereides has written a

speech which he thinks is suitable to the occasion, Ariston has

memorized it, and delivers it with considerable gusto. He has solid

evidence, as is proved from time to time when he stops to call, “Let

the clerk read the testimony of this or that.” There often is a certain

hum of approbation from the dicasts when he makes his points. He

continues bravely, therefore, ever and anon casting an eye upon the

_clepsydra_ near at hand, a huge water-clock which, something like an

hour glass, marks off the time allotted him. Some of his arguments seem

to have nothing to do with the alleged embezzlement. He vilifies his

opponent: calls Lamachus’s mother coarse names, intimates that as a boy

he had no decent schooling, charges him with cowardice in the recent

Mantinea campaign in which he served, hints that he has quarreled with

his relatives. On the other hand, Ariston grandiloquently praises

_himself_ as well born, well educated, an honorable soldier and

citizen, a man any Athenian would be glad to consider a friend. It is

very plain all these personalia delight the jury.[+] When Ariston’s

“water has run out” and he concludes his speech, there is a loud murmur

of applause running along the benches of the dicasts.

[*] These “friends,” however, were never regularly professional

advocates; it would have been ruinous to let the jury get the

impression that an orator was being directly hired to speak to them.

[+] For the depths of personal insult into which Greek litigants could

descend there is no better instance than Demosthenes’s (otherwise

magnificent) _Oration on the Crown_, wherein he castigates his foe

Æschines.

120. The Defendant’s Speech. Demonstrations by the Jury.—It is now

Lamachus’s turn. He also has employed a professional speech-writer

(_logographos_) of fame, Isæus, to prepare his defense. But almost at

the outset he is in difficulties. Very likely he has a bad case to

begin with. He makes it worse by a shrill, unpleasant voice and

ungainly gestures. Very soon many dicasts are tittering and whispering

jibes to their companions. As his harangue proceeds, the presiding

archon (who has really very little control of the dicasts) is obliged

“to remind the gentlemen of the jury that they have taken solemn oath

to hear both sides of the question.”

Lamachus fights doggedly on. Having put in all his real arguments, he

takes refuge also in blackguarding his opponent. Did Ariston get his

wealth honestly? was not his father a rascally grain dealer who starved

the people? Yet there is still more impatience among the dicasts.

Lamachus now uses his last weapon. Upon the pleader’s stand clamber

his five young children clad in black mourning garments. They all weep

together, and when not wiping their eyes, hold out their hands like

religious suppliants, toward the dicasts.[*]

[*] For such an appeal to an Athenian dicastery, see Aristophanes’s

_Wasps_. The pertinent passages are quoted in _Readings in Ancient

History_, vol. I, p. 238-40.

“Ah! Gentlemen of the jury,” whines their father, “if you are moved by

the voices of your lambs at home, pity these here. Acquit me for

_their_ sakes. Do not find against me and plunge these innocent

darlings into want and misery, by impoverishing their father.”

Appeals like this have swayed more than one jury during the last year,

but the fates are all against Lamachus. From a back bench comes a

dreaded shout that is instantly caught up by the front tiers also:

“_Katába! Katába!_—Go down! Go Down!”

Lamachus hesitates. If he obeys, he loses all the rest of his defense.

If he continues now, he enrages many of the dicasts, who will be

absolutely sure to find against him. The presiding archon vainly

rises, and tries to say something about “fair play.” Useless. The

uproar continues. Like a flock of scared doves Lamachus and all his

five children flee incontinently from the tribune, amid ironical cheers

and laughter.

121. The First Verdict.—There is silence at length. “The dicasts will

proceed to vote,” announces the court crier. The huge urns (one of

bronze, one of wood) with narrow mouths are passed among the benches.

Each juror has two round bronze disks, one solid, one with a hole bored

in the middle. The solid acquit, the pierced ones convict. A juror

drops the ballot he wishes to count into the bronze urn; the other goes

into the wooden urn. The bronze urn is carried to the archon, and

there is an uneasy hush while the 401 ballots are counted by the court

officers. As expected, more than 300 dicasts vote that Ariston is

entitled to damages against Lamachus as an embezzler.

122. The Second and Final Verdict.—Ariston is smiling; his friends are

congratulating him, but the trial is by no means over. If Lamachus had

been found guilty of something for which the law provided an absolute

fixed penalty, this second part of the proceedings would be omitted.

But here, although the jury has said _some_ damage or penalty or

penalties are due, it has still to fix the amount. Ariston has now to

propose to the dicasts a sum which he thinks is adequate to avenge his

wrongs and losses; Lamachus can propose a smaller sum and try to

persuade the court that it is entirely proper. Each side must act

warily. Athenian jurors are fickle folk. The very men who have just

howled down Lamachus may, in a spasm of repentance, vote for absurdly

low damages. Again, Lamachus must not propose anything obviously

inadequate, otherwise the jurors who have just voted against him may

feel insulted, and accept Ariston’s estimate.[*] Ariston therefore

says that he deserves at least a talent. Lamachus rejoins that half a

talent is more than ample, even conceding Arison’s alleged wrongs. The

arguments this time are shorter and more to the point. Then comes the

second balloting. A second time a majority (smaller this time, but

enough) is in favor of Ariston. The better cause has conquered; and

there is at least this advantage to the Athenian legal system, there

will be no appeal nor tedious technicalities before a “higher court.”

The verdict of the dicastery is final.

[*] Undoubtedly Socrates would have escaped with his life, if (after

his original condemnation) he had proposed a real penalty to the jury,

instead of an absurdly small fine. The only alternative for the

dicasts was to accept the proposition of his opponents,—in his case,

death.

123. The Merits and Defects of the Athenian Courts.—No doubt injustice

is sometimes done. Sometimes it is the honest man who hears the

dreaded “_Kataba!_” Sometimes the weeping children have their intended

effect. Sometimes it is the arguments about “My opponent’s scoundrelly

ancestry” which win the verdict. At the same time, your Athenian

dicast is a remarkably shrewd and acute individual. He can distinguish

between specious rhetoric and a real argument. He is probably honestly

anxious to do justice. In the ordinary case where his personal

interests or prejudices do not come into play, the decision is likely

to match with justice quite as often perhaps as in the intricate court

system of a great republic many centuries after the passing of Athens.

Certain features of some Athenian trials have not explained themselves

in the example just witnessed. To prevent frivolous or blackmailing

litigation it is provided that, if the plaintiff in a suit gets less

than one fifth of the ballots in his favor (thus clearly showing he had

no respectable case), he is liable to a heavy fine or, in default

thereof, exile. Again, we have not waited for the actual closing

scene—the dicasts each giving up his colored staff as a kind of voucher

to the court officers, and in return getting his three obols (9 cents)

daily jury fee, which each man claps promptly in his cheek, and then

goes off home to try the case afresh at the family supper.

124. The Usual Punishments in Athens.—Trials involving murder or

manslaughter come before the special court of Areopagus, and cannot

well be discussed here, but most other criminal cases are tried before

the dicasts in much the same way as a civil trial. When the law does

not have a set penalty, the jury virtually has to sentence the

defendant after convicting him, choosing between one of two proposed

penalties. Greek courts can inflict death, exile, fines, but almost

never imprisonment. There is no “penitentiary” or “workhouse” in

Athens; and the only use for a jail is to confine accused persons whom

it is impossible to release on bail before their trial. The Athens

city jail (“The House,” as it is familiarly called—_Oikēma_) is a very

simple affair, one open building, carelessly guarded and free to

visitors all through the daylight. The inmates have to be kept in heavy

fetters, otherwise they would be sure to take flight; and indeed

escapes from custody are somewhat common.

125. The Heavy Penalty of Exile.—An Athenian will regard locking a

criminal up for a term of years as a very foolish and expensive

proceeding. If he has nothing wherewith to pay a round fine, why,

simply send him into exile. This penalty is direful indeed to a Greek.

The exile has often no protector, no standing in the courts of the

foreign city, no government to avenge any outrage upon him. He can be

insulted, starved, stripped, nay, murdered, often with impunity. Worse

still, he is cut off from his friends with whom all his life is tied

up; he is severed from the guardian gods of his childhood,—“_the_

City,” the city of his birth, hopes, longings, exists no more for him.

If he dies abroad, he is not sure of a decent funeral pyre; and

meanwhile his children may be hungering at home. So long as the

Athenians have this tremendous penalty of exile at their disposal, they

do not feel the need of penitentiaries.

126. The Death Penalty at Athens.—There are also the stocks and

whipping posts for meting out summary justice to irresponsible

offenders. When the death penalty is imposed (and the matter often

lies in the discretion of the dicasts), the criminal, if of servile or

Barbarian blood, may be put to death in some hideous manner and his

corpse tossed into the Barathron, a vile pit on the northwest side of

Athens, there to be dishonored by the kites and crows. The execution

of Athenian citizens, however, is extremely humane. The condemned is

given a cup of poisonous hemlock juice and allowed to drink it while

sitting comfortably among his friends in the prison. Little by little

his body grows numb; presently he becomes senseless, and all is over

without any pain.[*] The friends of the victim are then at liberty to

give his body a suitable burial.

[*] No one can read the story of the death of Socrates in the prison,

as told by Plato in the _Phædo_, without feeling (aside from the noble

philosophical setting) how much more humane were such executions by

hemlock than is the modern gallows or electric chair.

An Athenian trial usually lasts all day, and perhaps we have been able

to witness only the end of it. It may well happen, however, that we

cannot attend a dicastery at all. This day may be one which is devoted

to a meeting of the public assembly, and duty summons the jurors, not

in the court room, but to the Pnyx. This is no loss to us, however.

We welcome the chance to behold the Athenian Ecclesia in action.

A Day in Old Athens; a Picture of Athenian Life · 第 15 / 21 章