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.”[*]