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.