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Home , Ancient Greek law, Logographer (legal)

Introduction: Oratory and at One of the many intriguing (and unique) aspects of Athenian law is that our information about it comes very largely from speeches composed for delivery in court. These date to the period 420-320,1 and reflect in part the high value the Greeks in all periods placed on effective speaking. Even Achilles, whose fame rested primarily on his martial superiority, was brought up to be “a speaker of words and a doer of deeds” (Iliad 9.443). Great Athenian leaders like and were accomplished public speakers; and epic poetry, tragedy, comedy, and history all made frequent use of set speeches. The formal pleadings of the envoys to Achilles in Iliad Book Nine, the messenger speeches in tragedy reporting events like the battle of Salamis in ’ Persians, and Pericles’ funeral oration in ’ History are but a few indications of the Greeks’ never-ending fascination with the spoken word, and with formal public speaking in particular, which reached its height in the public oratory of the fifth and fourth centuries. I. Oratory2 Originally, oratory was not a specialized subject of study but was learned by practice and example. The formal study of as an “art” (technē) began, we are told, in the middle of the fifth century in with Corax and his pupil Tisias.3 These two are scarcely more than names to us, but another Sicilian, of Leontini (c. 490-390), developed a dazzling new style of speech and argument. Gorgias initiated the practice, which continued into the early fourth century, of composing speeches for mythical or imaginary occasions. This tradition of “intellectual” oratory was continued by the fourth-

1 All dates in this volume are BCE unless the contrary is indicated or obvious. 2 For a good brief introduction to oratory and the orators, see Edwards 1994. Usher

1999 has a brief but useful discussion of each speech. 3 For differing accounts of these two figures see Kennedy 1963: 26-51, Gagarin 2007. century educator and played a large role in later Greek and Roman education. By contrast, “practical” oratory -- speeches delivered on real occasions in public life - - had been practiced throughout Greece for centuries. Athenians, in particular, had been delivering speeches in the courts and public assemblies since the days of and (late seventh and early sixth centuries), if not longer, though these speeches were not put in writing and thus not preserved. But as the participation of citizens in political and legal institutions increased during the fifth century, so too did the importance of oratory. The practice of writing down speeches for use in court began with , a fifth-century intellectual sometimes included (with Gorgias) in the group we call the Sophists.4 Antiphon contributed to the intellectual oratory of the period with his Tetralogies (sets of four fictional speeches each), but he also had a strong practical interest in law. Although he mostly avoided direct involvement in legal or political affairs, he gave advice to others who were engaged in litigation. Probably around 430, Antiphon began writing entire speeches for litigants to memorize and deliver in court. Thus began the practice of “logography” -- writing speeches for others -- and because speeches were not written, they could be preserved. Logography was a particularly appealing career for those like who were not Athenian citizens and who were thus barred from active participation in public life, and the practice continued through the fourth century and beyond.5

Antiphon and others also began to write down speeches they would themselves deliver in court or (occasionally) in the assembly. One other type of practical oratory was the special tribute delivered on important public occasions, the best known being the funeral oration. These three types of oratory were later classified by (Rhetoric 1.3) as forensic (for the courts), deliberative (for the assembly) and epideictic (for

4 See Gagarin 2002. 5 See further Todd 2005. display). II. The Orators. In the period 420-320, dozens of now unknown orators and logographers composed speeches for delivery in court. Most are now lost. Speeches have survived from the ten authors considered the best by later scholars. The authors represented in this volume are:6 • (c. 390-c. 322) rose from low origins to become a major political figure and a bitter enemy of . His speeches all concern public issues. He went into exile after losing the case “On The Crown” (Aes 3) to Demosthenes in 330.

• Antiphon (c. 480-411). In addition to writing speeches, Antiphon was one of the leaders of an oligarchic coup in 411. The democrats quickly regained power, and Antiphon was tried for treason, convicted and executed. • Demosthenes (384-322) is generally considered the greatest Greek orator. After his father’s death, his guardians mismanaged his estate, and probably stole much of it. He sued them and won, but despite repeated suits (Dem. 27-31), he never fully recovered the estate. He wrote speeches for others, and also for his own use in court and in the Assembly. In the 340s and 330s he vigorously opposed the growing power of Philip of Macedon, and after Athens’ defeat he successfully defended this policy against Aeschines in his most famous speech On the Crown (18), delivered in 330. • Apollodorus (c. 394-335?). Six or seven of the speeches attributed to Demosthenes

(including Dem. 59) were probably written by Apollodorus. His father Pasion was the slave of a banker but later was freed and eventually obtained Athenian citizenship. • Hyperides (390-322) was a political leader and logographer. With Demosthenes he led the Athenian resistance to Philip and Alexander, and was condemned to death after Athens’ final surrender. None of his speeches survived in manuscript form, but all or

6 For more information about these authors, see Edwards 1994 and the Introductions to volumes of The Oratory of . most of six speeches and parts of others have been recovered from remains. • (c. 415-c. 340) is said to have been a pupil of Isocrates and the teacher of Demosthenes. He wrote speeches on a wide range of topics but the eleven that survive in full all concern inheritance. • Isocrates (436-338) was a philosopher and educator. He came from a wealthy family that lost most of its property in the Peloponnesian War (431-404). He took up logography, but abandoned it about 390 in favor of writing and teaching; six court speeches survive from this period. He taught a broad mixture of statesmanship, public speaking, and practical philosophy, attracting pupils from the entire Greek world, and greatly influencing education and rhetoric in the Hellenistic and Roman times. • Lysias (c. 445-c. 380) was a metic -- a non-citizen resident of Athens. Much of his property was seized by the Thirty during their brutal oligarchic coup in 404/3. He wrote speeches for others on a wide range of subjects, and may have delivered one himself, on the murder of his brother (Lysias 12). He is particularly known for his engaging narratives, his realistic characters, and his prose style, which is a model of clarity and vividness. III. Government A. Officials The Athenian political system was a direct democracy, not the representative form of democracy common today.7 All significant policy decisions were made by the Assembly, in which all citizens could participate (a quorum was 6,000); a small payment for attendance enabled the poor to attend. A Council of 500, 50 from each tribe selected annually by lot, prepared material for and made recommendations to the Assembly; each

7 Hansen 1991 is the best short account. Much of our information about the legal and political systems comes from The Athenian Constitution (Ath. Pol.), attributed to Aristotle but probably written by a pupil of his (translated with notes by 1984). tribal group of 50 served as an executive committee, the Prytany, for one tenth of the year (36 or 37 days). The tribe holding the Prytany carried out all the administrative duties of the Council. All important officials other than military commanders were selected annually by lot and most offices could be held only once. Thus, many citizens held public office at some point but almost none served for an extended period of time or developed special expertise. The most important officials were the nine Archons (lit. “rulers”): the (eponymous) Archon after whom the year was named, the Basileus (“King” or “King

Archon”), the Polemarch, and the six Thesmothetae. The Archons oversaw the courts and had various other duties. The Archon supervised family and inheritance cases, the Basileus was in charge of homicide and religious cases, the Polemarch heard cases involving metics and others who were not Athenian citizens, and the Thesmothetae oversaw political trials. Most private cases were heard by the Forty, four tribal judges from each tribe to whom cases were allocated according to the tribe of the defendant. All officials and members of the Council underwent a “scrutiny” (dokimasia) before taking office, and officials submitted to a final accounting (euthynai) at the end of their term. Others also underwent a scrutiny, among them boys before being granted full citizenship at the age of eighteen, and the poor who wished to receive public welfare (see Lysias 24). At the scrutiny any citizen who wished could challenge a person’s fitness for his new position or privilege. The accounting examined the conduct of officials during their term of office in two phases, the first devoted to their financial accounts, the second to their general conduct; at the second stage it was open to anyone to lodge a complaint. B. The People Participation in the political and legal systems was mostly restricted to Athenian citizens, that is, adult male citizens. This restriction applied to holding office, voting in the Assembly, and serving on a jury. Determining citizen status was sometimes difficult (see Lys. 23). In 507 Cleisthenes organized Athens into ten tribes and 139 demes (precincts). Citizenship lists were kept by the demes. Membership was hereditary and fathers registered their sons in their deme at the age of eighteen. Every citizen also belonged to the tribe to which his deme was assigned. Pericles’ citizenship law, enacted in 450, restricted citizenship to those whose parents were both citizens. Although this requirement seems to have been neglected during the Peloponnesian War (431-404), it was reinstated in the archonship of Eucleides in 403/2. Women citizens could not participate in this system, though they had important roles in many religious rituals and festivals. There was apparently a law (Is. 10.10) that women

(and children) could not enter into a contract for more than a medimnos of barley (about 1 ½ bushels), but we also have evidence that seems to violate this restriction. In financial matters or in court, a woman would normally be represented by her kyrios (“guardian”), usually her husband, brother, father, or son. Non-citizen women did not face these restrictions. Besides citizens, the resident population consisted of metics and slaves. Metics were foreigners residing permanently in Athens. They had to register and pay a metic tax each year and serve in the military. They were not allowed to own real property, but otherwise they could participate fully in the economic life of the city. Many practiced trades, and some became quite rich. Metics could appear in court in certain kinds of cases. They could become citizens only by a vote of the Assembly; this was rare and normally was granted as a reward for special benefactions. The number and condition of slaves in Athens is a matter of dispute. Many citizens and metics seem to have had one or two slaves helping in the house or in the fields, but apparently even the rich did not have a large numbers of slaves for these tasks. Small workshops regularly were staffed by slaves; the two owned by Demosthenes’ father (Dem. 27), with twenty and thirty slaves respectively, were larger than most. Publicly owned slaves fulfilled some functions in the city but were primarily used in the silver mines, where their lives were extremely hard. Slaves could sometimes earn money for themselves and could occasionally buy their freedom or be freed by their master. Freed slaves had the status of metics. C. The Liturgy System Politicians gained influence not by election to office but by their ability to sway the majority of citizens in the Assembly to vote for their policies. Success was often temporary, as victory on one policy issue could quickly be followed by defeat on another. Leading politicians, who were often very wealthy, also gained prominence by undertaking public service in the form of “liturgies” (leitourgiai). Except for occasional war taxes (eisphora), levied on the richest citizens, the Athenians avoided direct taxation, relying instead on a system of liturgies, which were required of the wealthiest citizens on a rotating basis. The two most important and costly liturgies were the chorēgia and the trierarchy. In the former, a chorēgos organized and paid for the training of a chorus either for the dithyrambic contests (see Ant. 6) or for the dramatic competitions. A trierarch equipped a warship (trireme) and paid its expenses, and often commanded it for a year. Shared trierarchies appear to have been introduced in the final years of the Peloponnesian War, to cope with financial strains among the Athenian elite. Many litigants refer to their own liturgies in order to create a favorable impression with the jury. A person liable to a liturgy could challenge a richer man either to undertake it in his place or else to exchange properties with him: this exchange was called an antidosis. Details are unclear, but it seems most likely that the speaker often accepted the exchange and that disputes then arose about the content or value of the properties. IV Athenian Law8

8 The books on Athenian law by MacDowell 1978 and Todd 1993 are most accessible to beginners; Harrison 1968-71 and Lipsius 1905-15 provide more details. Boegehold 1995 is a full collection of the material evidence for Athenian courts and trial procedures. A. History The legal system was an integral part of this political system. The first written were enacted by Draco (c. 620) and Solon (c. 590), and new laws were regularly added. By the end of the fifth century these laws were in a rather chaotic state, and so an appointed commission examined all the laws. They removed conflicting or obsolete laws; the valid laws that remained were reinscribed. A new procedure was instituted for enacting laws: before a new law could be voted on by the Assembly, a group of Lawgivers (Nomothetai) had to certify that the proposed law did not conflict with any existing law. After 403 the Athenians distinguished formally between laws (nomoi) and decrees (psēphismata), with laws having greater authority. When a decree was proposed in the Assembly, any Athenian who wished could bring suit against it and its proposer by means of a graphē paranomōn, or “indictment for illegal [proposals].” A conviction in the case meant that the decree would be rescinded and its proposer could be fined. B. Judicial Organization At the heart of the Athenian judicial system were the popular courts (dikastēria). Most trials were held in these courts before juries that numbered between 201 and 501 citizens but in important cases could be as large as 1501. The older, aristocratic Council of the also heard cases, but after 462, its jurisdiction was confined to homicide and some religious cases. It was composed of all former archons, and would thus have numbered around 200. Trials and the procedures leading up to them were supervised by one of the archons or one of the Forty (see above IIIA). The role of these officials was purely administrative; they had no professional training and were in no way equivalent to modern judges. Officials alone decided private cases involving ten drachmas or less, but private disputes concerning larger amounts went first to a public arbitrator; every citizen was required to serve as an arbitrator during the year he turned sixty. At the arbitration hearing the two litigants presented their cases. The arbitrator collected all the documentation for the case, and he could question either litigant. The arbitrator then rendered a decision which, if accepted by both sides, was final; but either party could reject this decision and take the case to court. In public suits a preliminary hearing was also held at which documentation was similarly collected. The documents presented at these hearings were sealed in a jar and kept for the trial, and litigants could use only these documents in the trial. C. The Trial

A trial consisted of one speech by each litigant beginning with the plaintiff; in some private cases each side gave a second, rebuttal speech. A litigant normally presented his own case. If he could afford it, he could enlist the help of a logographer, who probably gave advice in addition to writing a speech. In addition, one or more friends could serve as a supporting speaker (synēgoros), presenting part or all of the case, but payment for this service was prohibited. Speeches were timed by a water clock (klepsydra) to ensure an equal hearing for both sides,9 and all trials were completed within a day. During his pleading a litigant could have the clerk read out a document such as a law, a witness deposition, or a contract; in private cases, the water clock stopped for this. Most of these documents no longer survive except for a notation in the text, such as “[LAW].” In some cases documents are preserved in the manuscripts, but these are often (not always) later forgeries. Jurors (dikastai)10 were selected by lot from those citizens who registered each year and who appeared for jury duty that day; only males aged thirty or older were eligible, and as with the Assembly, a small payment allowed the poor to serve. At the beginning of

9 For the water clock, see Boegehold 1995: 31, 77–78, 226–230, and plate 13.

10 Because the Athenian dikastai combined the roles of judge and juror in modern legal systems, dikastēs can also be translated “judge.” the year, all 6,000 jurors empanelled for that year swore an oath whose clauses included promises to vote according to the laws and the decrees of Athens or in default of a law according to “their most just opinion,” to give both sides a fair hearing, to cast their vote specifically on the subject under dispute, and to take no bribes. It is common for speakers to remind the jurors of the oath, either in general or with reference to specific clauses. After both sides spoke, the jury voted immediately, without formal deliberation, in a secret ballot; the litigant with the majority of votes won (a tie favored the defendant). This meant that all the issues in the case, substantive and procedural, were decided in one vote. In some cases in which the penalty was not fixed, after a conviction the jurors voted again in an “assessment” (timēsis or timēma) of the penalty, choosing between the penalties proposed by each side. A famous example of this is in ’s Apology. D. Witnesses11 In the fifth century, witnesses gave their testimony in person. Early in the fourth century, a system of written depositions was introduced. The litigant drafted the deposition for the witness, who merely affirmed the statement after it was read out by the clerk. Witnesses could be sued for false witness (pseudomartyria); three convictions on this charge resulted in the loss of civic rights. A witness who objected to the deposition prepared for him could take an oath of disclaimer (exōmosia) to the effect that he had not been present at the incident in question or did not know that the facts were as stated. If he refused to testify or swear this oath, he was subject to a summons (klēteusis), with a penalty of 1,000 drachmas for failure to respond. Despite the implications of several speakers, the oath of denial was probably sworn before the trial. E. Types of Procedure The traditional form of procedure was a dikē (“suit”) in which the injured party (or a relative in a homicide case) brought suit against the offender. When the victim was a

11 See further Thür 2005. woman or a slave, the suit was brought by the woman’s kyrios (above IIIB) or the slave’s master. Strictly speaking a dikē was a private matter between individuals, though it could have public dimensions. The other main form of procedure was a graphē (“indictment”) in which any citizen who wished could prosecute. This procedure was instituted by Solon, probably to allow prosecution of offenses against victims who were unable or unlikely to bring suit themselves, such as orphans,12 but the use of graphai soon increased to cover many types of public offenses. Other more specialized forms of prosecution, like eisangelia (“impeachment”) used in cases of treason, also depended on prosecution by volunteers. The existence of multiple procedures sometimes meant that different procedures were available for the same offense, but this does not appear to have been a problem (see Dem. 54.1-2). Rather, the system was intended to be flexible so that citizens could easily find a procedure by which to bring their complaints to court. The system of volunteer prosecutors meant that Athens never had a public prosecutor. By the end of the fifth century the system was apparently being abused by so-called “sykophants” (sykophantai), who, perhaps with trumped-up evidence, brought, or threatened to bring suits against rich men, either to gain part of the fine that would be levied or to induce the accused to settle out of court. It is impossible to gauge the true extent of this problem, but many litigants accuse their opponents, usually in rather vague terms, of being sykophants. The Athenians took steps to prevent sykophancy, for example by subjecting a plaintiff who dropped the case or failed to obtain one-fifth of the jury’s votes would to a fine of 1,000 drachmas. In any case, litigation was common in Athens and was seen by some as excessive. F. Laws Litigants often cite or refer to laws in their pleadings, and they (or their logographer)

12 In Greek an “orphan” (orphanos) is someone whose father had died; his mother might still be alive. could read the laws either on public inscriptions or, by the fourth century, in an archive. Statutes were generally written in ordinary, non-technical language, and offenses were designated by broad terms (“damage,” “assault,” “impiety”) without further precision. Plaintiffs would select an appropriate category and then specify the particulars of the (alleged) offense. There was no need for specialists to interpret the law, and as a result Athens had no lawyers, no trained judges, and no authoritative interpreters of the law (such as jurists). Religious “exegetes” (cf. Is. 8.39 below) could be consulted on legal matters that had a religious dimension, such as the prosecution of a homicide, and these opinions could be reported in court but they had no official authority. Thus, litigants could assert whatever interpretation of the law they wished, sometimes adducing the lawgiver’s (presumed) intent in support. In such cases, jurors had to decide for themselves whether to accept the litigant’s account. V The Speeches We know almost nothing about the “publication” of speeches at this time, but there was an active market for books in Athens and some speeches may have achieved wide circulation.13 An author may have circulated copies of his own speeches to advertise his talents or in political cases to make his views more widely known. Booksellers may have collected and copied speeches in order to make money. With the foundation of the great library in early in the third century, scholars began to collect and catalogue texts of many classical authors, including orators. These scholars selected the ten best orators and gathered all their speeches, though among the hundreds of speeches they collected, many were undoubtedly spurious. Only a small percent of these speeches survived to the modern era in manuscript form; a few

13 Dover’s discussion (1968) of the preservation and transmission of the works of

Lysias is fundamental for all the orators, though his stylistic criteria of authenticity and his theory of shared authorship have found few followers (see Usher 1976). more have been recovered from ancient papyrus remains. Today the corpus of Attic Oratory consists of about 150 speeches and letters, about 100 of which are forensic speeches. These cover many subjects -- important public issues, crimes, business affairs, lovers’ quarrels, inheritance, citizenship, and others; the twenty-two speeches in this volume are only a small sample. VI. Conclusion The Athenian legal system operated without professional oversight or control. Until recently, this lack of professional control led most scholars to judge Athenian law quite harshly. For critics like Plato (437-327), who argued against many aspects of Athenian culture (including poetry), democracy was essentially the tyranny of the masses, and the Athenian legal system was capricious and depended entirely on the rhetorical ability of litigants, who had no regard for truth or justice. Scholars often note that Athenian law was closely interwoven with politics and did not have the autonomy it later achieved in Rome and continues to have, at least in theory, in modern legal systems. Many recent scholars, however, conclude that the aim of Athenian law was a fair and orderly procedure that enabled any citizen to have his grievance heard in court by a group of his peers, and to have it heard quickly and cheaply without the need for special training or professional help. In this it clearly succeeded, and despite several wars and two short- lived oligarchic coups, and the Athenian legal system remained remarkably stable for almost two centuries (508-320).

Works Cited Boegehold, Alan L., 1995: The Lawcourts at Athens: Sites, Buildings, Equipment, Procedure, and Testimonia. Princeton. Dover, Kenneth J., 1968: Lysias and the Corpus Lysiacum. Berkeley

Edwards, Michael, 1994: The Attic Orators. London Gagarin, Michael, 2002: Antiphon the Athenian: Law and Oratory in the Age of the Sophists. Austin. Gagarin, Michael, 2007: ”Background and Origins: Oratory and Rhetoric before the Sophists,” in A Companion to Greek Rhetoric, ed. Ian Worthington. Oxford: 27-36.

Hansen, Mogens Herman, 1991: The Athenian Democracy in the Age of Demosthenes. Oxford Harrison, A.R.W., 1968-71: The Law of Athens. Vol. 1: The Family and Property. Vol. 2: Procedure. Oxford. Kennedy, George A., 1963: The Art of Persuasion in Greece. Princeton.

Lipsius, Justus Herman, 1905-15: Das attische Recht und Rechtsverfahren. Leipzig. MacDowell, Douglas M., 1978: The Law in . London. Rhodes, Peter J. trans., 1984: Aristotle, The Athenian Constitution. Harmondsworth. Thür, Gerhard, 2005: “The Role of the Witness in Athenian Law.” In The Cambridge Companion to Law, ed. Michael Gagarin and David Cohen. Cambridge: 146-69. Todd, Stephen C., 1993: The Shape of Athenian Law. Oxford. Todd, Stephen C., 2005: “Law and Oratory at Athens.” In The Cambridge Companion to Ancient Greek Law, ed. Michael Gagarin and David Cohen. Cambridge: 97-111. Usher, Stephen, 1976: “Lysias and his Clients,” Greek, Roman and Byzantine Studies 17: 31-40

Usher, Stephen, 1999. Greek Oratory: Tradition and Originality. Oxford.