Can we hope to make sense of the rules governing the evidence of slaves in Athens?

Transcription

1 Can we hope to make sense of the rules governing the evidence of slaves in Athens? XANTHIAS: [T]ake my slave and torture [βασάνιζε] him [to see whether] you catch me in any wrong-doing AEACUS: And how should I torture him? XANTHIAS: Any way. 1 Thus Aristophanes (405BC) comically inverts Athenian law on slaves evidence: the slave Xanthias, posturing as master, arranges interrogation under torture of divine Dionysus, disguised in servile garb. Slaves (male and female) 2 could not act as witnesses in fifth and fourth century Athens; 3 theoretically, their evidence was only acceptable if obtained under torture ( βάσανος ). For slaves were doing something normally reserved to free men, so could not testify voluntarily; their evidence was temporarily estranged, institutionally marked as [from] another order. 4 βάσανος supposedly transformed words into evidence separated from servile bodies 5 slaves were considered incapable of rational deception and withstanding pain, unlike free men. 6 Gagarin distinguishes between evidentiary and judicial βάσανος. The former is a uniquely Athenian method of verifying information concerning a party in (predominantly) private suits. 7 Its defining feature is the challenge ( πρόκλησις ) daring one s opponent to produce his slaves or offering your own satisfactory to two parties. Judicial βάσανος is the one-sided investigatory torture of suspects and material witnesses. 8 Extant sources mostly deal with evidentiary βάσανος, on which this essay will chiefly focus. Most of our evidence dates from c bc, 9 primarily the Attic Orators. Thus one cannot distinguish phases in the procedure s use. Originally βάσανος meant the 1 Aristophanes, Frogs, Lycurgus, MacDowell, (1978), p dubois, (1991), p.49 5 Osborne, (2000), p.81 6 Isaeus, 8.12; Euripides, Hecuba, Mirhady, (1996), p.120; Demosthenes, evidentiary βάσανος challenge in γραφή 8 Gagarin, (1996), pp Thür, (1996), p.132 1

2 touchstone used to ascertain gold s purity; by c.429bc, Sophocles employs the term for proving a slave s information. 10 Our sources use βάσανος alternately for the πρόκλησις, the interrogation, and the resulting statement. Therefore, it is often difficult to discern precisely what procedural stage is being discussed. Neither procedure nor rationale are directly explained, necessitating inference. Athens possessed the most chattel slaves in Greece; the majority were privately owned, possessing no formal rights. 11 Legally incapable, they relied on their masters for representation: a slave is better dead [because he] is unable to protect himself or anyone else. 12 βάσανος reflects the ideology of difference between slaves, perceived as physical beings, and free citizens, legally inviolable. 13 Women, permitted to swear oaths, could not be witnesses; freedmen who became metics 14 were not subject to torture. βάσανος is often praised for securing truth. However, no direct evidence proves that evidentiary βάσανος was ever carried out: of forty-two cited challenges, 15 two were accepted but subsequently retracted, 16 the others all rejected. Evidence of slaves interrogated under torture (penal and judicial) remains only from public cases. 17 Finley asserts There is no ground for supposing anything about the frequency of torture. 18 This seems too strong. Scholars divide over a conjectural explanation: whether evidentiary βάσανος was an alternative to trial aimed at resolution or whether it instead introduced slaves evidence into court. 19 Within our sources logographers courtroom speeches the pattern of challenge and refusal, set alongside rhetorical 10 Theognis, fr.415-8; Sophocles, OT, Finley, (1964), p.238; Todd, (1993), pp.185-7: state-owned slaves appear legally superior. 12 Plato, Gorgias, 483b 13 Demosthenes, ; Andocides, Todd, (1993), p Thür, (1977), pp Demosthenes, 37.42; Isocrates, Hansen, (1991), p.201; eg. Antiphon, Finley, (1980), p Thür, (1996), p.134; Mirhady, (1996), p.122 2

3 handbooks instruction in manipulating the value of βάσανος challenges, indicate that βάσανος was predominantly used c bc as a rhetorical tool to gain advantage. Rules governing evidentiary βάσανος apparently unchanging c bc 20 appear well attested. Despite only one (seemingly genuine) extant πρόκλησις text 21 clerks read out challenges in court similarities with other sources suggest consistent characteristics. Slaves are named, and compensation from the opponent stipulated if wounded past repair. 22 Although no texts quote the precise wording of questions to be asked, βάσανος appears concerned with clarifying single points of fact whether Neaira s children were fathered by Stephanos, and where Aeschines slept. 23 It has therefore been inferred that slaves were limited to answering yes or no. 24 Alternative penalties for each litigant, dependent on the outcome, are proposed. Moreover, the interrogator s identity litigant or third party βασανιστής and the torture to be used are specified. 25 Challenges appear to have been issued publically prior to trial: at the agora, arbitration, and private houses before (free) witnesses. 26 Thus speeches indicate depositions in close proximity to προκλήσεις, naming witnesses, confirming details, 27 and thereby providing credibility. Emphasis on cooperation between challenger and challengee is striking. Multiple responses were possible: accept or reject [or] accept with modifications, or counter-challenge. 28 Counterchallenges commonly appear. 29 βάσανος, therefore, seems fairly clear as a procedure for extracting evidence or negotiating settlement. 20 Thür, (1996), p Demosthenes, Ibid. 23 Ibid.; Aechines, Gagarin, (1996), p.4 25 Demosthenes, ; Isocrates, 17.15; Aristophanes, Frogs, Demosthenes, , 49.55, Demosthenes, Thür, (1996), p Lysias 4.15; Demosthenes

4 Scholars have posited exceptions to slaves interrogation under torture: δίκαι ἐµπορικαί (mercantile cases), δίκαι φόνου (homicide cases), and state emergencies. Despite scarce evidence, inference is possible; the first two exceptions, although subject to rules differing from most δίκαι, are probably to be rejected. 30 In δίκαι ἐµπορικαί usual boundaries were not upheld foreign traders were granted procedural equality ; 31 slaves were often commercial agents. 32 Yet the argument for slaves free testimony rests on Demosthenes terming Lampis who apparently testified with no mention of torture an οἰκέτης (household slave). 33 Yet orators term freedmen slaves in other suits; 34 imprecision may be responsible. Likewise, Carey notes that speeches concerning homicide refer to evidentiary βασανος, 35 suggesting its application. After murdering Eratosthenes, Euphiletus did not present his wife s slave as a witness despite her crucial knowledge 36 free witnesses already attested to the facts, perhaps negating the need for slave testimony. Stephanos allegedly presented slaves as freedmen to testify at a homicide case, presumably so that they might provide answers more fulsome than yes or no and evade torture. 37 Thus we cannot be certain that slaves were free witnesses in δίκαι ἐµπορικαί and φόνου. However, when masters were suspected of treason, sacrilege, or theft of public monies 38 serious offences against the state slaves were encouraged to inform voluntarily without torture, and even offered freedom: 39 µήνυσις. Masters could be compelled to submit slaves. 40 After the herms mutilation (415BC), 41 Andromachus and Lydus informed against their masters Todd, (1993), p Ibid., pp Carey, (1988), p Todd, (1990), p.26; Demosthenes, Lysias, 30.5; Demosthenes Carey, (1988), p.241 n.1; Antiphon , Lysias Demosthenes, Hunter, (1994), p Lysias, Andocides, Thucydides, Andocides, ; 35 4

5 During public crises attempts were even made to extend judicial torture to citizens 43 state security trumps legal and ideological systems. Examining Athenian ideology s difference between free citizens and slaves, reflected in law, illuminates the rationale behind evidentiary βάσανος. Aristotle believed that slavery was a natural disposition. 44 Comedy depicts owners physically abusing slaves, 45 suggesting the attitude behind βάσανος ; whipping free men could provoke indictment. 46 Athens was a small superstructure of free citizens based on slave labor. 47 Demosthenes addresses jurors male citizens capable of owning slaves as δεσπόται (masters) juxtaposed with general δοῦλοι (slaves), attempting to rouse hostility against the ex-slave Phormion. 48 βάσανος appears irrational: slaves might say whatever they thought torturers wanted. 49 Yet the Greek notion that slaves, physical beings, possess no rational faculties 50 problematic for those reduced to slavery explains its reasoning. Witnessing was a privilege : 51 by demonstrating public support of a litigant one risked being sued for false testimony. Slaves, legally incapable, could not be sued; without torture, says Antiphon, slaves have no motivation to speak truthfully 52 torture evened out the odds. βάσανος also counterbalanced probable pressure of litigant masters on slaves. 53 However, slaves legal position appears ambiguous. Masters could sue for a slave s ὕβρις or φόνος 54 they were somewhat physically human. Although βάσανος confirmed status boundaries, ideology suggests that it would be unacceptable to rest cases on slaves evidence, as litigants defending their own refusals 43 Andocides, Aristotle, Politics, 1334a3 45 Aristophanes, Knights, 4-5; Lysistrata, Demosthenes, Dorjahn, (1971), p Demosthenes, Antiphon, Aristotle, Politics, 1254b Todd, (1990), p Antiphon, MacDowell, (1978), p Demosthenes, 21.47; Plato, Euthyphro, 4c-d 5

6 argue. 55 [A]mbiguity of evidence derived from torture replicates ambiguity of social status. 56 The paradoxical deficit of extant cases of evidentiary βασανος despite its forty-two references and protested accuracy requires explanation. Numerous citations suggest that evidentiary βάσανος was a common reality; lack of extant cases may be an accident of survival. 57 Yet something ensured that the procedure was frequently refused. Only on four occasions does a speaker mention his refusal 58 all suggest alternative challenges so one must extrapolate. Some litigants freed slaves, or claimed that they were freed, in order to evade βασανος. 59 Perhaps masters did not want their property to be damaged Pasion retracted his agreement to βάσανος when he failed to persuade interrogators to question Cittus without torture. 60 Torturing a slave was his master s right hence the requirement of agreement on which βάσανος might impinge. Moreover, extant βάσανος challenges tend to favour challengers, making acceptance unlikely. For example, if slaves evidence supported Apollodorus case, he proposed that Stephanos children be disenfranchised grave punishment which conviction without βάσανος may not have involved 61 and wife enslaved; if it supported Stephanos, Apollodorus proposed to drop the case, mentioning no penalty for himself. 62 But, of course, we possess only rejected challenges. That evidentiary βάσανος secured automatic resolution through pre-trial settlement 63 may appear to explain why no cases survive. A parallel has been drawn between προκλήσεις to βάσανος and to swear an oath, consent-procedures reliant on 55 Demosthenes, 37.41, Aeschines, dubois, (1991), p Ibid., p Lysias, ; Demosthenes, 29.38, , Lysias, 4.14; Isocrates, Isocrates, Carey, (1992), p Demosthenes, Headlam, (1894), p.136 6

7 cooperation. 64 The latter, once accepted and evidence given, could not be impeached by legal process ; 65 Aristotle suggests that the oath challenge was an alternative to trial. 66 Consensual βάσανος may have been subject to non-forensic constraints: by accepting a challenge both parties agreed to reconcile. 67 Johnstone argues that the first contingency [accepting challenges] determined whether the dispute would be settled whilst torture itself was misrepresented as crucial. 68 Certainly, questions to be asked sometimes appear trivial to the main case. 69 But litigants twice retracted agreement before this second, formal procedure was carried out. 70 Moreover, if agreements were not legally controlled preventing subsequent appeal one would expect instances of dissatisfied parties later bringing the issues into lawcourts. None appear. Arguing that we hear no instance that is indecisive either 71 rests too much on sources silence. Orators never claim that βάσανος automatically solved cases; their need to persuade of its decisiveness is telling. 72 βάσανος challenges may often have offered settlement (certainly presented thus). 73 Courts were always the last resort. Yet this does not prove that βάσανος challenges were all meant to lead to resolution 74 as noted above, some related in court seem deliberately inflammatory. 75 Rather, outside courts, προκλήσεις to torture and counter-challenges may have negotiated litigants disputes, 76 offering possible resolution. 64 Todd, (1990), p Ibid.; Demosthenes, Aristotle, Rhetoric, 1377a14 67 Johnstone, (1999), p Ibid. 69 Antiphon, Demosthenes, ; Isocrates, Mirhady, (2000), p Gagarin, (1996), p.5; Lysias Isocrates, 17.55; Demosthenes, Mirhady, (1996), p Demosthenes, Johnstone, (1999), p.72 7

8 Thür argues that βάσανος was used as evidence in court presumably its original function and was unanimously esteemed the highest proof. 77 Orators suggest that evidence extracted through βάσανος was presented to juries: a completed interrogation would have allowed jurors to know the truth rather than conjecturing. 78 Challenges to βάσανος issued at arbitration delayed sealing the evidence jars 79 statements from βάσανος might belong within the trial context. Yet it is problematic that no extant source presents a completed evidentiary βάσανος as evidence. Isaeus, claiming that βάσανος supplies evidence, does not refer to a completed interrogation but to the rejected πρόκλησις which proves guilt. 80 Indeed, challenges rather than results from βάσανος seem to have been put into evidence jars; 81 speeches ask clerks to read προκλήσεις. 82 As demonstrated above, when public crises required slaves evidence βάσανος was abandoned, suggesting that its primary function was not the extraction of evidence. Indeed, its evidence was limited given slaves monosyllabic answers. Furthermore, speeches recount what slaves have seen without recourse to βάσανος such information could be provided thus, although presumably not proven. 83 Perhaps βάσανος originated in a primitive age when slaves evidence was important. In c bc, however, its practice operated differently. Our evidence suggests that βάσανος was a rhetorical tool within lawcourts according to unwritten practice. Athenian trials were staged competition[s] 84 between two parties; litigants speeches were decisive. Persuasion was paramount and professional rhetoricians and logographers were rife. βάσανος allowed rhetorical manoeuvre in litigation s game ; 85 strikingly, orators contrast truthful βάσανος and rhetorical deceptive 77 Thür, (1996), pp Demosthenes, ; Isocrates, Demosthenes, Isaeus, Aristotle, AP, Demosthenes, Lysias ; Johnstone, (1999), p Gagarin, (1996), p.2 85 Bonner and Smith, (1938), p.128 8

9 argument. 86 Yet sources employ the unacceptable challenge 87 to gain higher ground; προκλήσεις to βάσανος were presented as moves towards resolution, but contained singularly antagonistic 88 terms. Moreover, challenges are issued during trial for purely dramatic effect. 89 Since written documents replaced direct oral testimony (c bc) 90 it did not matter whether challenges were accepted προκλήσεις would still be read out, supporting allegations. Aristotle and Anaximenes later treat βασανος as written proof to be manipulated according to one s case 91 a serious rhetorical subject. The pattern of consent and refusal, and orators contradictory claims (even within the same corpus) of the procedure s trustworthiness 92 and untrustworthiness 93 fit a rhetorical context. Yet βάσανος as an elaborate legal fiction 94 seems too strong; this would privilege slaves evidence over free testimony, and we cannot prove categorically that βάσανος was not carried out. Rather, βάσανος appears to have been an old legal procedure for admitting slaves evidence which had become almost obsolete, but not as a procedural ploy. Practice was always changing in courts: comedy shows people humorously choosing not to kill a µοιχός (adulterer) 95 punishment within law s scope 96 but when Euphiletus killed his wife s lover, it caused serious problems. Perhaps practice altered as forensic rhetoric developed, but the formula βάσανος remained unchanged. Just as jurors decisions regarding βάσανος challenges were based on likelihood rather than clear knowledge, 97 so reconstructing the rules governing slaves evidence 86 Lycurgus, Thür, (1996), p Johnstone, (1999), p Antiphon, Mirhady, (1996), p Aristotle, Rhetoric, 1376b a7; Pseudo-Anaximenes, RA, 1432a Antiphon Antiphon, 2.2.7; Lysias Gagarin, (1996), p.1 95 Aristophanes, Clouds, Lysias, Antiphon,

10 requires inference. The theoretical procedure and its exceptions appear extractable, but the lack of extant cases of completed evidentiary βάσανος is problematic. There is no one reason why torture might have been applied to slaves for ideological grounds of status, to even the risks faced by free witnesses, and to counterbalance pressure from litigant masters. So too there is no one reason explaining our lack of extant cases. Accidents of survival may be responsible. Contrary to scholarly debate, our sources cannot prove with certainty that βάσανος was used as evidence in courts, that all challenges were intended to provoke resolution, nor that βάσανος was a legal fiction. Extant challenges were likely rejected because of the need for cooperation. Challengers would only have issued προκλήσεις to βάσανος when certain of their success or challengees refusal. Challenges to βάσανος within our courtroom speeches served as rhetorical devices. In this sense, c bc βάσανος was most democratic 98 reflecting the intense rhetorical atmosphere of contemporary Athens. 98 Lycurgus,

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