Chapter XV. An Athenian Court Trial.
114. The Frequency of Litigation in Athens. - The visit to the Peireus 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 Peireus, 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 alter 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 is 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. Hyperedies 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 Aeschines.
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, Iseus, 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 the 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:
"Kataba! Kataba! - 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 - "Oikema") 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 "Phedo," 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.