Trials from Classical Athens

Christopher Carey

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136621895
• Edition: 2
• Topic: Historia
• Subtopic: Historia antigua

The ancient Athenian legal system is both excitingly familiar and disturbingly alien to the modern reader. It functions within a democracy which shares many of our core values but operates in a disconcertingly different way. Trials from Classical Athens assembles a number of surviving speeches written for trials in Athenian courts, dealing with themes which range from murder and assault, through slander and sexual misconduct to property and trade disputes and minor actions for damage. The texts illuminate key aspects both of Athenian social and political life and the functioning of the Athenian legal system.

This new and revised volume adds to the existing selection of key forensic speeches with three new translations accompanied by lucid explanatory notes. The introduction is augmented with a section on Athenian democracy to make the book more accessible to those unfamiliar with the Athenian political system. To aid accessibility further a new glossary is included as well as illustrations for the first time.

Providing a unique and guided introduction to the Athenian legal system and explaining how the system reveals the values and social life of Classical Athens, Trials from Classical Athens remains a fundamental resource for students of Ancient Greek history and anyone interested in the law, social history and oratory of the Ancient Greek world.

1

HOMICIDE CASES

GENERAL

Homicide trials formed a distinct category in terms of legal procedure. The Constitution of Athens (7.l) maintains that the only laws of Drakon retained by Solon were those dealing with homicide. Antiphon (6.2) emphasizes the antiquity of the homicide laws and insists that they have remained unchanged. It is conceivable that the laws had been subjected to adjustments between Drakon and the end of the fifth century, when they were reinscribed as part of a general revision of the laws, but there is no good cause to doubt the general impression we have of conservatism in this area of the law. The reluctance to change reflects the Greek conservatism in matters of religion, for homicide pollutes the perpetrator and anyone who comes into contact with him or her. The antiquity of the laws and the Athenian reluctance to meddle with them probably explains the fact that this, the most serious of crimes, was covered by a private action (though for obvious reasons the right to prosecute lay with the victim's family, whereas in ordinary private cases the victim alone had the right to sue) rather than by public action, as one would expect. The concept of public action (of prosecution by ho boulomenos) was created by Solon after Drakon's day. For the reader who wishes to explore homicide law in depth, D.M. MacDowell's Athenian Homicide Law in the Age of the Orators (Manchester 1963), E.M. Carawan's Rhetoric and the law of Draco (Oxford 2001) and D. Phillips’ Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes (Stuttgart 2008) may be consulted; for the present it will be sufficient to adumbrate some of the distinctive features. The prosecution began with a proclamation in the agora instructing the alleged perpetrator to abstain from a number of religious and social activities, as being unclean (Antiphon 6.35–6, [Demosthenes] 59.9). It proceeded more slowly than in other cases, with three preliminary hearings (prodikasiai) held in three separate months and the trial itself in the fourth. The trials made more extensive use of oaths than other cases, including (uniquely within the Athenian system) a compulsory oath from all witnesses to the effect that the accused had or had not committed the crime. They also had tight rules on relevance. Most strikingly perhaps, they were always held in the open air to prevent the judges from coming under the same roof as a polluted individual. The judicial panels were also distinctive. The most important homicide court, the Areiopagos, consisted of ex-Archons, individuals with administrative and legal experience, and since the panel remained unchanged this effectively constituted an expert panel. The other courts were manned by the ephetai, fifty-one in number; these may have been selected from within the Areiopagos, though this is far from certain. Another distinctive feature is the number of courts trying the same offence. The allocation of cases to courts depended on a number of factors; the status of the victim, the nature of the accusation and the nature of the defence.

CASE I: LYSIAS 1 – ON THE KILLING OF
ERATOSTHENES

This speech was written for the defence of a man named Euphiletos (§16), who is accused of the deliberate killing of a young man named Eratosthenes. Both are otherwise unknown. He argues in his defence that he caught Eratosthenes in the act of sex with his wife. The killing was therefore legal. The case will have been heard by the Delphinion, the court which tried homicide cases in which the accused admitted the act but maintained that the killing was allowed by law. The date of the trial cannot be fixed with confidence. It could fall at any point between the probable start of Lysias’ speech-writing career after 403 BC and his retirement or death some time around 380. It has been suggested that the characters and situation in this speech are fictive, i.e. that what we have is an exercise/sample speech of the kind we have in the tetralogies of Antiphon rather than a defence spoken in a real trial. The names might lend credence to this hypothesis (Eratosthenes means something like ‘power of desire’ and Euphiletos means ‘wellbeloved’, an ironic name under the circumstances). But this speech is quite unlike the bare manner of the tetralogies, and there is nothing that is incompatible with delivery in a real action. Even the names are of limited significance in a culture where almost all names have a meaning, though we cannot rule out the possibility that the names have been changed for publication, given the implications of seduction for family honour and legitimacy of children. There are commentaries on this speech in C. Carey, Lysias: Selected Speeches (Cambridge 1989), S.C. Todd, A Commentary on Lysias, Speeches 1–11 (Oxford 2007) and M.J. Edwards, Lysias: Five Speeches (London 1999).

[1] I should value it greatly, gentlemen, if you would adopt the same attitude as my judges in this matter, as you would toward yourselves if you had been subjected to such treatment. For I am sure that if you were to have the same attitude to others as you do toward yourselves there would be nobody who would not feel indignant at what has taken place, but all of you would consider the penalties for those who behave in this way trifling. [2] And this would be the considered opinion not only here but in the whole of Greece. For this is the only wrong for which both in democracy and in oligarchy the same redress has been given to the weakest against the most powerful, so that the lowest has the same rights as the highest; so firmly, gentlemen, do all mankind believe that this outrage is the most terrible. [3] Well, on the magnitude of the penalty I think you all are of the same mind, and that nobody is so lax as to think that those who are responsible for actions of this sort should obtain pardon or deserve light penalties; [4] but I think that what I must prove is that Eratosthenes seduced my wife and both corrupted her and disgraced my sons and insulted me by entering my house; and that there was neither any hostility between me and him apart from this, nor did I commit this act for money, to rise from rags to riches, nor for any other profit beyond the redress granted by the laws. [5] So then, I shall disclose to you the whole of my story from the beginning, leaving nothing out but telling the truth. For I see this as my only means of salvation, if I am able to tell you everything that happened.

[6] When I decided to marry, men of Athens, and I brought a wife into my house, during the early period my attitude was neither to annoy her nor to allow her too much freedom to do as she wished; I protected her to the best of my ability and kept watch as was proper. But when my child was born, from then on I trusted her and I placed all my property in her care, believing that this was the strongest bond of affection. [7] And to begin with, men of Athens, she was the best of all women; she was a skilled and thrifty housekeeper who kept careful control over everything. But when my mother died – [8] and her death has been the cause of all my troubles, for it was when my wife attended her funeral that she was seen by this man and eventually corrupted; he kept watch for the serving girl who used to go to market and passed messages and seduced her.

[9] Now first, gentlemen (this too I must tell you), I have a small house with two floors, with the upstairs and downstairs equal in size as far as the men's and women's quarters are concerned. When our baby was born, its mother nursed it. So that my wife would not run any risk going downstairs when she had to bathe him, I lived upstairs and the women below. [10] And this had become so normal that often my wife would go off downstairs to sleep with the baby, to give him the breast so that he wouldn't cry. And this went on for a long time, and I never once suspected, but was so gullible that I thought my own wife was the most decent woman in the city.

[11] After a time, gentlemen, I came home unexpectedly from the country. After dinner the baby cried and howled; he was being tormented by the maid on purpose to make him, because the man was in the house – afterwards I discovered all of this. [12] And I told my wife to go off and give the baby the breast to stop him crying. To start with she refused, as if she were pleased to see me back after a long absence. When I grew angry and told her to go she said: ‘Oh yes, so that you can have a go at the serving girl here! You've groped her before too when you were drunk!’ [13] I for my part laughed, while she stood up, went out and closed the door, pretending she was joking, and then turned the key. And I thought nothing of all this and suspected nothing, but went to sleep gladly, having come from the country. [14] When it was almost daylight, she came and opened the door. When I asked why the doors banged in the night, she said that the lamp by the baby had gone out and so she had got a light from the neighbours. I said nothing, and believed that this was true. But I thought, gentlemen, that she was wearing make-up, though her brother was not yet dead thirty days. Still, even so I said nothing about the matter but went off without a word.

[15] After this, gentlemen, time passed, and I remained in complete ignorance of my misfortunes. Then an elderly female slave came up to me; she had been sent secretly by a woman with whom Eratosthenes was having an affair – so I heard later. This woman was resentful and thought herself hard done by, because he no longer visited her frequently as before; so she kept watch until she found out the cause. [16] This female approached me near my house, where she was looking out for me. ‘Euphiletos,’ she said, ‘don't think I've approached you through any desire to meddle. For the man who is insulting you and your wife is actually an enemy of ours. If you seize the girl who goes to market and works for you and put her to the test, you will discover everything. It is,’ she said, ‘Eratosthenes of Oe who is doing this. Not only has he corrupted your wife but also many others; he makes a profession of it.’

[17] With these words, gentlemen, she went off, while I was immediately thrown into confusion; everything came into my mind and I was filled with suspicion. I reflected how I was locked up in my room, and recollected that the courtyard door and outside door banged that night, something which had never happened before, and that I thought my wife was wearing make-up. All this came into my mind and I was filled with suspicion. [18] I went home and told the serving girl to come to the market with me. I took her to the house of one of my friends and told her that I had found out everything that was going on in the house. ‘So,’ I said, ‘you have two choices, either to be whipped and thrown into a mill and never have any release from miseries of this sort, or to tell the whole truth and suffer no harm but obtain pardon from me for your offences. Tell me no lies. Speak the whole truth.’

[19] As for her, to begin with she denied it and told me to do as I wished, since she knew nothing. But when I mentioned Eratosthenes to her and said that he was the man who was visiting my wife, she was amazed, supposing that I had detailed knowledge. At that point she threw herself at my knees, [20] and having received an assurance from me that she would suffer no harm she turned accuser, telling first of all how he approached her after the funeral, and then how she had finally served as his messenger and my wife was won over eventually, and the means by which his entry was arranged, and how at the Thesmophoria while I was in the country my wife went to the temple with his mother. And she gave me a detailed account of everything else which had taken place.

[21] When her whole story was told, I said: ‘See that nobody in the world hears of this. Otherwise nothing I have agreed with you will stand. And I expect you to give me manifest proof of this. I don't need words, I want the action exposed, if it is as you say.’ [22] She agreed to do this.

After this there was an interval of four or five days, as I shall demonstrate with convincing evidence. But first of all I want to give you an account of what took place on the last day. I had a close friend, Sostratos, whom I met on his way from the country after sunset. I knew that having arrived so late he would find nothing he needed at home, and so I invited him to dinner. We reached my house and went upstairs and dined. [23] When he had eaten his fill, he went off while I went to sleep. Eratosthenes, gentlemen, came in, and the serving girl woke me at once and told me that he was in the house. Telling her to watch the door, I went downstairs in silence and left the house. I called on one man after another; some I didn't catch at home, while others, I found, were not even in town. [24] But I took as many as I could of those who were available and made my way back. We obtained torches from the nearest shop and went indoors – the door had been kept open by the serving girl. We pushed open the door of the bedroom. The first of us to enter saw him still lying beside my wife; those who entered after saw him standing naked on the bed.

[25] I knocked him down with a blow, gentlemen; I forced his hands behind his back and tied them, and asked him why he was insulting me by entering my house. He admitted his guilt, but begged and pleaded with me not to kill him but to exact money. [26] For my part I answered: ‘It is not I who shall kill you but the city's law, which you broke, because you considered it less important than your pleasures. You preferred to commit a crime such as this against my wife and my children rather than obey the laws and behave decently.’

[27] So, gentlemen, that man paid the penalty which the law prescribes for those who commit such wrongs. He was not dragged in off the street, nor did he take refuge at the hearth, as these people maintain. How could he, when he fell down at once in the bedroom where he was struck, and I had bound his hands, when there were so many people in the room whom he could not slip past, and he had neither blade nor wood nor any other weapon with which to resist those who had entered the room? [28] No, gentlemen, I think you too are aware that people engaged in unjust plots do not accept that their enemies are telling the truth. By telling lies themselves and by such devices they stir up the hearers’ anger against men who are acting justly. [To the clerk] Now first of all read out the law.

Law

[29] He did not dispute his guilt, gentlemen, but confessed it, and begged and pleaded not to die but offered to pay money. For my part I did not agree to his assessment. I considered that the law's authority was greater, and exacted the penalty which you believed most just when you imposed it for men guilty of such offences. Will my witnesses to these statements please step up.

Witnesses

[30] Please read out this law too from the column on the Areiopagos.

Law

You hear, gentlemen, that it is explicitly decreed by the court on the Areiopagos itself, which both by our ancestors and in our own day has been granted the right to try cases of murder, that a man is not to be convicted of murder if he exacts this punishment after catching a seducer with his spouse. [31] And the lawgiver was so convinced of the justice of this in the case of married women that he imposed the same penalty in the case of concubines, who are of less importance. Yet clearly, if he had had a harsher penalty in the case of married women, he would have employed it. As it is, unable to find a more severe penalty in their case, he determined that the punishment should be the same as in the case of concubines. Please read out this law too.

Law

[32] You hear, gentlemen, that he bids that if anyone forcibly shames a free man or boy, he is to pay double the damage, if a woman, in cases where killing is permitted, he is liable to the same penalty. So true is it that he considered that those who use force deserve a lesser penalty than those who use persuasion. For he condemned the latter to death, while for the former he doubled the damages, [33] in the belief that those who get their way by force are hated by their victims, while those who have used persuasion corrupt the women's minds to such an extent that they make other people's wives more loyal to themselves than to their husbands, so that the whole household is in their power and it is uncertain whose the children are, the husbands’ or the seducers’. And so the lawgiver made death the penalty for them.

[34] So in my case, gentlemen, the laws have not only acquitted me of wrongdoing but have actually ordered me to exact this penalty. And it is up to you whether the laws are to have authority or to be of no account. [35] For in my opinion the reason all cities make their laws is so that on any issue on which we are in doubt we may go to them and determine what must be done. It is the laws which urge the victims in cases such as this to exact this penalty. [36] I urge you to show your agreement with them. If not, you will provide so much security for seducers as to encourage thieves too to claim that they are seducers. They will know well that if they offer this excuse and claim that this is their purpose in entering other people's houses, nobody will lay a finger on them. Everyone will know that the laws on seduction can be ignored, that it is your vote they need to fear. For this is the supreme authority in the city.

[37] And consider, gentlemen. They allege that I told the serving girl to fetch the young man that day. Personally, gentlemen, I should consider myself justified in using any means available to catch the man who had corrupted my wife. [38] For if words had been exchanged but no act had taken place and I told her to fetch him, I would have been in the wrong; but if the affair had been fully consummated and he had entered my house many times, and I used any means available to catch him, I should consider my action reasonable. [39] But note that this too is a lie. You will recognize this easily from the following facts. As I said before, gentlemen, my close friend Sostratos met me on his way from the country around sunset and dined with me, and when he had eaten his fill he went off. [40] Yet consider first of all, gentlemen, whether, if I was plotting against Eratosthenes that night it was better for me to dine elsewhere myself or to bring a dinner guest home. For in the latter case Eratosthenes would have been less likely to venture into the house. Then again, do you think I would have let my dinner guest go and leave me alone and unsupported, or ask him to stay, so that he could join me in taking revenge on the seducer? [41] Furthermore, gentlemen, don't you think I would have sent word to my associates during the day and instructed them to gather in the nearest of my friends’ houses, instead of running around during the night as soon as I found out, without knowing whom I would find at home and who would be out? I went to Harmodios’ house, and another's, who were out of town (I had no idea), and found that others were not at home, and made my way back taking all those I could. [42] Yet if I had known beforehand, don't you think I would have had servants ready and sent word to my friends, so that I could go in with the utmost safety myself (how could I know whether he had a blade too?), and take my revenge with the maximum number of witnesses? As it is, knowing nothing of what was to happen that night, I took along those I could. Will my witnesses to these statements please step up.

Witnesses

[43] You have heard the witnesses, gentlemen. Now consider the matter in your own minds, and ask if there has ever been any quarrel between Eratosthenes and me, apart from this. You will find none. [44] He did not persecute me with public charges; nor did he try to exile me from the city; nor did he bring private suits against me; nor did he know any secret about me which I was so afraid someone would discover that I wanted to kill him; nor did I have any hope of receiving money from some source if I were to commit this act. For people sometimes plot each other's deaths for motives such as these. [45] Now, not only had no insult or drunken quarrel or any other dispute taken place; I had never even seen the man except that night. What conceivable reason could I have had to risk such a danger, if I had not received the most terrible wrong from him? [46] Then again, did I voluntarily summon witnesses to my impiety, when I could have ensured, if I was plotting wrongfully to kill him, that none of them would share my secret?

[47] In my opinion, gentlemen, this was not a private punishment for my own sake but for the whole city. For people who act in this way, once they see the prizes set up for such offences, will be less likely to commit them against others, if they see that you are of the same mind. [48] Otherwise, it is far better to expunge the established laws and make others which will impose the punishments on men who protect their own wives and grant full immunity to men who wish to offend against them. [49] This is far more just than for the citizens to be ambushed by the laws; these bid anyone who catches a seducer to treat him as he chooses, but it turns out that the trials are far more dangerous for the victims than for those who disgrace other men's wives contrary to the laws. [50] For I now find my person, my property, everything else, in danger, because I obeyed the city's laws.

The individual right to self-help – that is to take legally sanctioned action without recourse to the courts – persisted in certain contexts in the classical period. Among them was the punishment of the seducer (Greek moichos). Where a free m...

Table of contents

• Front Cover
• Trials From Classical Athens
• Routledge Sourcebooks For The Ancient World
• Tital Page
• Copyright
• CONTENTS
• List of figures
• Preface to the first edition
• Preface to the second edition
• Maps
• Introduction
• 1 HOMICIDE CASES
• 2 ASSAULT AND WOUNDING
• 3 SUITS CONCERNING PROPERTY
• 4 CASES CONCERNING COMMERCE
• 5 CASES CONCERNING CITIZENSHIP
• 6 SACRED OLIVES AND OTHER CASES
• Appendix I Athenian currency
• Appendix II The Athenian calendar
• Appendix III Glossary of legal terms
• Selected further reading
• Index