Bers, Victor. 2009. Genos Dikanikon: Amateur and Professional Speech in the Courtrooms of Classical Athens. Hellenic Studies Series 33. Washington, DC: Center for Hellenic Studies. http://nrs.harvard.edu/urn-3:hul.ebook:CHS_Bers.Genos_Dikanikon.2009.
Chapter 2: Amateur Litigants, Amateur Speakers
The idiôtês on His Own
It often said that a litigant in an Athenian court was required to speak for himself, [1] though the evidence for an actual law making such a stipulation is very weak indeed: a single remark in a second-century AD work, Quintilian’s Institutio Oratoria (2.15.30). [2] Still, even if litigants always delivered at least part of their pleadings in their own voices, there is no doubt whatever that many yielded their position on the bêma to sunêgoroi (co-speakers) and, more important, that our knowledge of court speech is necessarily drawn almost entirely from the preserved speeches of the ten logographoi (speechwriters) of the Canon of Attic Orators and Apollodorus (the “Eleventh Attic Orator”; see Trevett 1992). The canonical status of these orators is to blame, as I see it, for a blind spot that has led scholars to regard the preserved speeches as a reliable sample of how the generality of Athenians spoke in court. We see this in Dover’s magnificent analysis of forensic style: “It is … demonstrable that conformity of language to litigant falls within certain boundaries, and that in the Lysian period a certain distance between forensic language and colloquial language was maintained, no matter how simple and plain-spoken the persona of the litigant might be” (Dover 1968b:83). Dover did establish that discrepancy in his specimen texts (Dover 1968b:83–86). His results are of great significance. But for his purposes, colloquial language was represented by comic narrative; he makes no mention of litigants who could not speak in court in the language of the logographoi. [3]
A portion of my general argument on the nature of unskilled dicanic speech is built from traces, some direct, some inferred, of speeches poorly prepared and poorly executed. Even a professional logographos writing and delivering his own speech must have stumbled from time to time, but my general hypothesis is that certain evitanda (things that should be avoided) were characteristic of court speech performed by men forced by circumstance to rely exclusively on themselves or on friends and relatives no more adept at forensic speaking than themselves. For the sake of brevity, I usually refer to a man in this category as an idiôtês (plural idiô0tai), a word that in general denotes men with little or no training and practice in a specific activity; [4] in Athens the term was a few times used of volunteer prosecutors, but far more often in a negative sense of individuals who were not rhêtores (speakers), politeuomenoi (men regularly involved in politics), or “skilled in speaking or maneuvering” (see Rubinstein 1998). But it cannot be taken for granted that enough men who lacked professional skill of their own and did not enjoy a professional’s assistance actually spoke – and spoke poorly – in Athenian courts that their failures can serve as the foil against which to inspect certain qualities of professional speech. Or to put it another way, we must ask to what extent the one hundred or so forensic speeches in our corpus are unrepresentative of actual court speech. Were there opportunities for Athenians to witness or hear about speeches that went awry in ways that logographoi would identify and avoid in their own work?
Idiôtai Too Poor to Pay a logographos?
We meet a few tantalizing references to a speaker’s economic status. At Demosthenes 44.3–4 Against Leochares the speaker describes himself and his father as poor (penês; see the discussion of Birds 1430–36 later in this chapter), adding that his father works as a sort of town crier or messenger, an occupation that allows him no free time to “fuss with business.” Still, the case involves an estate large enough to make buying a professional speech at least a reasonable gamble. The entire point of Lysias 24 is to persuade the Boulê that the speaker is entitled, by virtue of a crippling disability that has exacerbated his poverty, to a daily payment from the state of one obol, a very small sum indeed. Some scholars (e.g. Usher 1999:106–110) cannot believe that a man as poor as he claims to be could afford to buy a speech from a logographos, and that the levity the speaker exhibits is impossibly cheeky. In their view, the speech is a bagatelle, the client nonexistent. Todd (2000:253–254), who is rightly agnostic on the issue, points to a number of possible explanations for a poor man getting professional help, including the chance “that the orator (whether Lysias or somebody else) might be prepared to reduce or waive his fees in the light of a personal connection with the speaker.” [5]
The prosecutor in Isocrates 20.19 talks as if from and for the proletariat:
καὶ μηδεὶς ὑμῶν, εἰς τοῦτ᾽ ἀποβλέψας ὅτι πένης εἰμὶ καὶ τοῦ πλήθους εἷς, ἀξιούτω τοῦ τιμήματος ἀφαιρεῖν. οὐ γὰρ δίκαιον ἐλάττους ποιεῖσθαι τὰς τιμωρίας ὑπὲρ τῶν ἀδόξων ἢ τῶν διωνομασμένων, οὐδὲ χείρους ἡγεῖσθαι τοὺς πενομένους ἢ τοὺς πολλὰ κεκτημένους. ὑμᾶς γὰρ ἂν αὐτοὺς ἀτιμάζοιτ᾽ εἰ τοιαῦτα γιγνώσκοιτε περὶ τῶν πολιτῶν.
Let not even one of you think it right to reduce the award because you have observed that I am poor, one of the many. It is unjust to make the penalty less for little-known victims than those who have much. You would be dishonoring yourselves if you thought such things about citizens.
Can we believe his self-description as “poor, one of the many”? David Mirhady, the translator, remarks that “most of the judges would also have been relatively poor.” That fact alone might taint the argument for justice for the poor because the speaker appeals to the jury as if they were better off, a piece of dishonest flattery. The very brevity of the speech, at least as we have it – only a few pages – might be evidence for the speaker’s poverty, but we must beware of begging the larger question by assuming that Isocrates’ fee was too high for a poor man.
The following discussion will, of necessity, simplify the issue by casting it as a dichotomy: skilled logographic speech versus unskilled amateur work. If it were not impossibly cumbrous, however, I would repeatedly invoke (and expand on) Dover (1968b: chap. 8) by calling attention to a continuum: At the high end, a logographos composing and delivering a speech himself; next would follow a client willing and able to pay for a complete speech and some coaching in the delivery; then a litigant who could read well enough to learn from written speeches, whether model speeches [6] or ones actually delivered, or if rich enough to mingle with experienced men, to ask their advice; [7] a self-reliant litigant who had learned by observation, e.g. as a spectator (see Lanni 1997); a man buying in the “bargain basement,” perhaps getting just a sketch of a speech and a few worked-out paragraphs, and then doing some rehearsing. At the extreme low end, we would find a functional illiterate making an unrehearsed, truly spontaneous speech – an extremity, it must be remembered, that Dover does not spell out. Damaging mistakes would presumably cluster toward the end of this spectrum, but καὶ Ὅμηρος ἔνευσε (the proverbial “even Homer nods”), and even a Lysias or an Aeschines could make a mistake others would notice and resolve not to repeat.
We would have a much better handle on this matter if speakers were forthcoming, precise, and credible about their economic status and about the preparation of their speeches, [8] but not one comes within a stadion’s length of such candor. Consequently, we need to look outside the genos dikanikon in the form it has reached us.
Poor Men in Court?
Although many specific Athenians can be identified as members of the liturgic class, the richest in the city, overall distribution of wealth in classical Athens is not known with any precision. The size of the next richest group, not subject to liturgies but only to payment of the eisphora, sometimes called the “leisure class,” is controversial. [9] But if the curve, virtually an L, presented by Davies 1981 (graph opposite 36) is even roughly accurate, the citizen population was predominantly quite poor, and the number of men whose “gross wealth” exceeded a talent very small. Was the average – that is to say, poor – Athenian at all likely to have spoken in court? And if he was, did he have professional help?
Several scholars who have written on the subject have tended to the opinion that poorer men were very rarely heard in court. In Mass and Elite in Democratic Athens, Ober remarks, “The Athenians had a reputation for being an especially litigious folk (cf. Aristophanes, Wasps, Clouds), but we do not know how common it was for an average Athenian to find himself involved in a lawsuit” (1989:112–113). The general argument of Ober’s book, however, presents a picture of the courts as an arena in which rich men were the contestants and poorer men the judges. [10] Christ attacks the question head-on and is less agnostic than Ober: “To be sure, the surviving record may give a skewed impression of the sociology of Athenian litigation, since the forensic speeches that constitute the bulk of the ancient evidence were composed for well-off litigants. Nonetheless, it is probable that elite Athenians, that is, the top 5 to 10 percent of citizens by wealth, constituted a ‘litigating class’ that was disproportionately active in the courts” (1998:32–33). His conclusion arises from three arguments: (1) “The circumstances of wealthy men increased the likelihood of their engaging in litigation.” The rich had property worth fighting over, say in an inheritance suit, or they might be “victims of false suits.” They were far more likely to be active in the city’s political life, and therefore more vulnerable to legal action, and they were also subject to liturgical service and the legal troubles that came with it. (2) “The wealthy were in a much better position than average citizens to initiate and pursue suits … They could afford to study oratory in anticipation of litigation, to purchase speeches from logographers for use at trial.” (3) “Athenian legal institutions privileged legal conflicts among the rich and powerful in several ways”: cases involving less than ten drachmas were decided by deme judges; longer sessions were allotted for trials arising from disputes in which large sums were at stake; and graphai, the category of action more likely to involve rich citizens, got a whole day in court (Christ 1998:33).
These are all substantial points, but in my view not strong enough to show that the unaided idiôtês was virtually invisible – or perhaps better, inaudible – in the Athenian courts. I side with Rhodes (1998:145), who notes that “there were enough private suits for the Forty to decide those for under ten drachmae and for all men in their last year on the army registers to be used as arbitrators to decide those for over ten drachmae.” He goes on to conjecture that the idiôtês was not a rarity among litigators: [11] “It looks as if the Athenians’ reputation for litigiousness was not generated only by the elite, but a significant number of Athenians pursued quarrels by judicial means significantly often. I should guess that in the law-courts as in the Assembly the man who was a mere voter on one day might well be an active participant on another.”
Consider first the ten-drachma rule. The source is the Constitution of the Athenians attributed to Aristotle (53.1–2):
κληροῦσι δὲ καὶ τοὺς τετταράκοντα, τέτταρας ἐκ τῆς φυλῆς ἑκάστης, πρὸς οὓς τὰς ἄλλας δίκας λαγχάνουσιν. οἳ πρότερον μὲν ἦσαν τριάκοντα καὶ κατὰ δήμους περιιόντες ἐδίκαζον, μετὰ δὲ τὴν ἐπὶ τῶν τριάκοντα ὀλιγαρχίαν τετταράκοντα γεγόνασιν. καὶ τὰ μὲν μέχρι δέκα δραχμῶν αὐτοτελεῖς εἰσι δ[ικά]ζε[ι]ν
The Forty, four appointed by lot from each tribe, are the officials from whom the plaintiffs obtain a hearing in the other private suits. Earlier they were thirty in number, and used to go round the demes trying cases, but since the oligarchy of the Thirty there have been forty of them. Cases up to ten drachmae they have absolute authority to decide, cases above this assessment they hand over to the arbitrators.
(Translation by P. J. Rhodes)
This upper limit for compulsory adjudication of a case by a deme judge was very low. The most often cited record of wages, the Erechtheum accounts of the last decade of the fifth century, show that a laborer would earn ten drachmas in seven to ten days (IG I 2 373–374). We might compare the current typical dollar limits of $2,500 to $5,000 in American small claims court, the lowest reach of the system. These are amounts a blue-collar worker might earn in one to three months. [12] Some eighty years after the Erechtheum accounts, not long after the terminus post quem of the Constitution of the Athenians, skilled workers at Eleusis would earn ten drachmas in as few as four days (IG II–III2 1672–1673). That service as an arbitrator was obligatory for citizens once they reached their fifty-ninth birthday (Constitution of the Athenians 53.4) suggests that the city needed to make provision for a large number of men seeking recourse to the legal system, whether by arbitration or jury trial. At some point the city excluded the ephebes, at least some of whom must have come from families of idiôtai, from participation in dikai, whether as prosecutors or defendants (Constitution of the Athenians 42.5). [13] Finally, it is important to keep in mind that a potential litigant might descend from a rich family or have rich descendants of his own, yet have very little property himself. [14]
Furthermore, we should not assume that there is a tight connection between a man’s fitness to cope with litigation and his need to do so. Any lawyer serving destitute clients in contemporary America knows this melancholy situation very well. The poor could sometimes be attacked to settle a personal grievance, whether justified or not, or be milked of the little they had by pitiless opportunists adept at manipulating the legal system. And it should go without saying that a poor man could be accused, whether justly or not, of a serious crime of violence and subject to summary arrest (apagôgê). Unless he admitted to guilt and accepted immediate execution, he would need to speak at his trial. [15] Would a man who earned as little as these laborers did think it worthwhile or even possible to pay for assistance? Isocrates asserts that Athens was very well stocked with logographoi, [16] but even if that was true, he does not speak about the cost of their services.
As early as the Clouds (the first version was performed in 423) there is evidence that one did have to pay for help in coping with litigation. Deluxe rhetorical training might involve study with a sophist, and sophists, as Dover puts it, “did not teach for nothing” (Dover 1968a:xxxix; cf. Xenophon Memorabilia 1.6). Aristophanes’ Strepsiades, explaining to his son that he might go to a phrontistêrion (a building for mental reflection – the word is nicely captured by ‘reflectory’) [17] to learn from Socrates and his gang the means to throw off his creditors, certainly expects to pay for this knowledge:
ψυχῶν σοφῶν τοῦτ᾽ ἐστὶ φροντιστήριον.
ἐνταῦθ᾽ ἐνοικοῦσ᾽ ἄνδρες οἳ τὸν οὐρανὸν
λέγοντες ἀναπείθουσιν ὡς ἔστιν πνιγεύς,
κἄστιν περὶ ἡμᾶς οὗτος, ἡμεῖς δ᾽ ἅνθρακες.
οὗτοι διδάσκουσ᾽, ἀργύριον ἤν τις διδῷ,
λέγοντα νικᾶν καὶ δίκαια κἄδικα.
ἐνταῦθ᾽ ἐνοικοῦσ᾽ ἄνδρες οἳ τὸν οὐρανὸν
λέγοντες ἀναπείθουσιν ὡς ἔστιν πνιγεύς,
κἄστιν περὶ ἡμᾶς οὗτος, ἡμεῖς δ᾽ ἅνθρακες.
οὗτοι διδάσκουσ᾽, ἀργύριον ἤν τις διδῷ,
λέγοντα νικᾶν καὶ δίκαια κἄδικα.
This is the “reflectory” of shrewd minds. Dwelling within are men who say that the firmament is a cauldron lid that surrounds us, and we are the charcoal. These men teach tuition-paying customers to win by giving speeches – both just and unjust.
Clouds 94–99
In a fragment of what at least purports to be Antiphon’s celebrated speech in his own defense for involvement with the oligarchy of the Four Hundred, he mentions, in order to dismiss as improbable, the charge that he profited from law cases:
ἀλλὰ μὲν δὴ λέγουσιν οἱ κατήγοροι ὡς συνέγραφόν τε δίκας ἄλλοις καὶ ὡς ἐκέρδαινον ἀπὸ τούτου. οὐκοῦν ἐν μὲν τῆι ὀλιγαρχίαι οὐκ ἂν ἦν μοι τοῦτο, ἐν τῆι δημοκρατίαι πάλαι ὁ κρατῶν εἰμι ἐγώ εἰδὼς τοῦ λέγειν, ἐν μὲν τῆι ὀλιγαρχίαι οὐδενὸς ἔμελλον ἄξιος ἔσεσθαι, ἐν δὲ τῆι δημοκρατίαι πολλοῦ;
My accusers say that I used to compose speeches for others to deliver in court, and that I profited from this. But under an oligarchy I would not be able to do this, whereas under a democracy I have long been the one with power because of my skill with words. I would be worthless in an oligarchy but very valuable in a democracy.
Antiphon fragment 1.10–15 Gagarin
This suggests a widespread familiarity with at least the imputation of speechwriters’ venality; together with jokes and other reports on the same theme, it must reflect, at the very least, a common opinion. [18] Regrettably, we have no solid evidence regarding what one had to pay for a logographer’s help. [19] Socrates is a special case, an ascetic (Clouds 103) often invited to dine in rich men’s houses, but the famous sophists are portrayed as living very well indeed, if we can trust the many relevant Platonic texts. The unspoken premise of Antiphon’s remark, however, is that he was drawing an income from his speechwriting substantial enough to make it implausible for him to participate in a coup d’état to bring down the democracy. Jokes in fourth-century comedy also make no sense if the famous speechwriters were working for peanuts, rather to satisfy luxurious tastes (Timocles fragment 4 K-A). It seems close to certain that the better logographoi, the men whose work was commercially viable in the book trade, charged far more than those too poor to be assigned liturgies or to pay eisphora could (or would) choose to pay.
At Demosthenes 22.25–29 Against Androtion the speaker stresses, and rather exaggerates (Carey 1998), the multiplicity of procedures available under Athenian law. He refers to Athenians who are bold and capable of speaking or who are not adept (§25, δυνατοῖς λέγειν vs. ἰδίωτας). He also speaks of the monetary risks of various actions. This makes sense only if the jury thinks it possible that poor men, untrained in public speaking, might sometimes find themselves wishing or needing to participate as agents in prosecution or defense.
There is plentiful evidence from the comic stage. If we had no other proof of the prominence of lawcourts in Athenian life, we might not be sure whether the many jokes about litigiousness were simply drawing on a comic topos, an urban myth, as it were. [20] But of course there is abundance of evidence for an extremely active judicial apparatus in texts far from the comic stage and in material remains. That said, can we deduce anything from comedy about the social and economic status of litigants?
Several of the most famous jokes tell us little more than that courts forever in session were a notorious feature at Athens:
[Μαθητής] αὕτη δέ σοι γῆς περίοδος πάσης. ὁρᾷς; αἵδε μὲν Ἀθῆναι.
[Στρεψιάδης] τί σὺ λέγεις; οὐ πείθομαι,ἐπεὶ δικαστὰς οὐχ ὁρῶ καθημένους.
Student: This is a map of the word. See? Here is Athens.
Strepsiades: What do you mean? I don’t believe it, because I don’t see jurymen at work.
[Στρεψιάδης] τί σὺ λέγεις; οὐ πείθομαι,ἐπεὶ δικαστὰς οὐχ ὁρῶ καθημένους.
Student: This is a map of the word. See? Here is Athens.
Strepsiades: What do you mean? I don’t believe it, because I don’t see jurymen at work.
Clouds 206–208
And in Aristophanes’ Peace (505), Hermes charges the Athenians with doing nothing but adjudicating court cases: οὐδὲν γὰρ ἄλλο δρᾶτε πλὴν δικάζετε (“You do nothing but decide cases”). At Wasps 87–90, a similar description applies to Philocleon, the jury-service addict:
φράσω γὰρ ἤδη τὴν νόσον τοῦ δεσπότου.
φιληλιαστής ἐστιν ὡς οὐδεὶς ἀνήρ·
ἐρᾷ τε τούτου τοῦ δικάζειν, καὶ στένει
ἢν μὴ ᾽πὶ τοῦ πρώτου καθίζηται ξύλου.
φιληλιαστής ἐστιν ὡς οὐδεὶς ἀνήρ·
ἐρᾷ τε τούτου τοῦ δικάζειν, καὶ στένει
ἢν μὴ ᾽πὶ τοῦ πρώτου καθίζηται ξύλου.
I’ll tell you our master’s disease: he’s a lover of the lawcourt, like no one else. He’s passionate for this business of judging, and he moans if he doesn’t sit on the front-row bench.
So far we have descriptions not of litigants, but of jurors. To the extent that we can rely on the documentary value of Aristophanes’ jokes, we have reason to believe that the courts were known to have been busy places and that many Athenians sat on jury panels. At Aristophanes Birds 39–41, however, the Athenians are most probably litigants, since they are described as vocalizing:
οἱ μὲν γὰρ οὖν τέττιγες ἕνα μῆν᾽ ἢ δύο
ἐπὶ τῶν κραδῶν ᾄδουσ᾽, Ἀθηναῖοι δ᾽ ἀεὶ
ἐπὶ τῶν δικῶν ᾄδουσι πάντα τὸν βίον.
ἐπὶ τῶν κραδῶν ᾄδουσ᾽, Ἀθηναῖοι δ᾽ ἀεὶ
ἐπὶ τῶν δικῶν ᾄδουσι πάντα τὸν βίον.
The cicadas sit on their boughs and sing a month or two, whereas the Athenians sit on their law cases forever and sing their whole life through. [21]
Philocleon’s sadism, which is depicted as aimed solely at defendants, and his uncertain economic standing make it hard to be sure whether Aristophanes was expecting his audience to recognize a typical litigant in Philocleon’s vignettes. The defendant whom Philocleon quotes at 556–557 is poor enough to confess what sounds like petty larceny in the discharge of a magistracy or when buying provisions on campaign:
“οἴκτιρόν μ᾽, ὦ πάτερ, αἰτοῦμαί σ᾽, εἰ καὐτὸς πώποθ᾽ ὑφείλου
ἀρχὴν ἄρξας ἢ ᾽πὶ στρατιᾶς τοῖς ξυσσίτοις ἀγοράζων.”
ἀρχὴν ἄρξας ἢ ᾽πὶ στρατιᾶς τοῖς ξυσσίτοις ἀγοράζων.”
“Pity me, father, I beg you, if you yourself ever swiped something while holding office, or, when on campaign, buying provisions for your messmates.”
But the next defendant in Philocleon’s description (564–565) is apparently putting on a false show of poverty:
οἱ μέν γ᾽ ἀποκλάονται πενίαν αὑτῶν, καὶ προστιθέασιν κακὰ πρὸς τοῖς οὖσιν, ἕως ἂν ἰὼν ἀνισώσῃ τοῖσιν ἐμοῖσιν·
Some of them wail about their poverty, and pile troubles on the ones they really have, until they equal my troubles.
We hear of several additional devices some other defendants (οἱ δέ bis) employ in an attempt to win pity from the jurors, and then Philocleon concludes with a line (575) suggesting that these litigants, at least, have some measure of wealth: ἆρ᾽ οὐ μεγάλη τοῦτ᾽ ἔστ᾽ ἀρχὴ καὶ τοῦ πλούτου καταχήνη; (“Isn’t this a powerful office, the snubbing of wealth?”).
Aristophanes assigns Philocleon several motives for jury service, including the satisfaction of his sadism and other more or less base desires, but the chief attraction is financial, the three-obol fee (605–610) that he brings home to a family that adores him for it; accordingly, he is undone by his son’s demonstration that the jurors are in fact receiving far less than their fair share (660–695). The plot practically demands that the litigants be portrayed as at least richer than the jurors; [22] his son places him among a large group whom unscrupulous politicians “wish to be poor.” But there are passages in the Wasps suggesting that poorer men might find themselves not only compelled to appear in court, but even taking the initiative in a legal action. Rather late in the play (1094–1097) the elderly chorus of jurors, who had earlier been presented as far from well off (251–253; 300–302), contrast their current interest in doing well in court with their youthful devotion as younger men to military exploits:
οὐ γὰρ ἦν ἡμῖν ὅπως
ῥῆσιν εὖ λέξειν ἐμέλλο-
μεν τότ᾽ οὐδὲ
συκοφαντήσειν τινὰ
φροντίς, ἀλλ᾽ ὅστις ἐρέτης ἔσοιτ᾽ ἄριστος.
ῥῆσιν εὖ λέξειν ἐμέλλο-
μεν τότ᾽ οὐδὲ
συκοφαντήσειν τινὰ
φροντίς, ἀλλ᾽ ὅστις ἐρέτης ἔσοιτ᾽ ἄριστος.
You see, then we didn’t give a thought to making a good speech or maliciously going after someone in the courts, but to who would be the best rower.
The first element, how to speak well, might pertain to defense or a deliberative speech in the Assembly, but the second is frankly prosecutorial, attacking a man in a legal action, probably without justification. Soon after (1205–1207), Philocleon brags of his own successful prosecution of a famous athlete for verbal abuse:
ἐγᾦδα τοίνυν τό γε νεανικώτατον·
ὅτε τὸν δρομέα Φάυλλον ὢν βούπαις ἔτι
εἷλον διώκων λοιδορίας ψήφοιν δυοῖν.
ὅτε τὸν δρομέα Φάυλλον ὢν βούπαις ἔτι
εἷλον διώκων λοιδορίας ψήφοιν δυοῖν.
I know the coolest thing was when I was still a huge kid and prosecuted Phayllos the runner for insulting language, and won my case by a two-vote margin.
The “reformed” and rejuvenated Philocleon behaves like a rank hooligan. He has abandoned jury service, but around him people continue to look to the courts for redress, or at least pretend that they will. Speaking for a group whom Philocleon has just treated roughly, a man threatens him with legal action (1332–1334), presumably for αἰκία (assault) or ὕβρις (assault that dimishes the victim’s honor):
ἦ μὴν σὺ δώσεις αὔριον τούτων δίκην
ἡμῖν ἅπασιν, κεἰ σφόδρ᾽ εἶ νεανίας.
ἡμῖν ἅπασιν, κεἰ σφόδρ᾽ εἶ νεανίας.
I swear you’ll answer for this in court, for all of us, even if you are a young fellow.
Soon after (1415–1418), Bdelycleon warns his father that a second assault victim is coming after him, accompanied by a witness. [23] This time the potential prosecutor names the specific offense, ὕβρις.
[Βδελυκλέων] ὁδί τις ἕτερος, ὡς ἔοικεν, ἔρχεται
καλούμενός σε· τόν γέ τοι κλητῆρ᾽ ἔχει.
[Κατήγορος] οἴμοι κακοδαίμων. προσκαλοῦμαί σ᾽, ὦ γέρον,
ὕβρεως.
Bdelycleon: Here’s another guy coming to summon you; he does at least have a witness.
Prosecutor: Oh, my awful luck! I summon you, old man, for assault.
Bdelycleon offers to settle, but his father goes him one better, confessing his guilt, proposing (absurdly) to take it on himself to determine the amount of damages, and offering his friendship to boot. The victim accepts, out of reluctance to get involved in legal action (1426):
[Κατήγορος] σὺ λέγε. δικῶν γὰρ οὐ δέομ᾽ οὐδὲ πραγμάτων.
καλούμενός σε· τόν γέ τοι κλητῆρ᾽ ἔχει.
[Κατήγορος] οἴμοι κακοδαίμων. προσκαλοῦμαί σ᾽, ὦ γέρον,
ὕβρεως.
Bdelycleon: Here’s another guy coming to summon you; he does at least have a witness.
Prosecutor: Oh, my awful luck! I summon you, old man, for assault.
Bdelycleon offers to settle, but his father goes him one better, confessing his guilt, proposing (absurdly) to take it on himself to determine the amount of damages, and offering his friendship to boot. The victim accepts, out of reluctance to get involved in legal action (1426):
[Κατήγορος] σὺ λέγε. δικῶν γὰρ οὐ δέομ᾽ οὐδὲ πραγμάτων.
Prosecutor: You say – how much to settle? I don’t want lawsuits or trouble.
Legal action is, then, at least one of the likely outcomes. Within a few lines, Philocleon again strikes the victim and launches into his second cautionary tale. The action, set in Philocleon’s private court, calls for court performances by kitchen implements and dogs; likewise, this exemplum tells of a jar seeking redress through legal action (1435–1441). These jokes about inanimate objects as participants in litigation rely on a reductio ad absurdum: not just anyone, but any thing, could find himself/itself in court and required to speak. This comic premise would, I think, have been unworkable if elite litigants were practically the only ones Athenians could see contending in the courts.
The episode also includes the appearance of Myrtia the bread-seller, who as a woman would of course not be permitted to represent herself in legal proceedings, threatening to prosecute Philocleon for knocking her wares to the ground. Though a citizen, she is at the low end of the economic ladder. Along with her is a member of the elite, the often-satirized Chaerephon, whom she identifies as a witness of Philocleon’s offense. But as Chaerephon is involved only because he happened to be present, we cannot doubt that the de facto potential litigant is Myrtia herself, a woman poor enough to be selling bread.
Comedy does not, unfortunately, supply clear evidence as to the economic class of the sycophants (malicious prosecutors; cf. Demosthenes On the Crown 242), a group whose occupation was disparaged in forensic oratory perhaps as early as Antiphon. [24] True, a passage like the colloquy between Peisetaerus and the Sycophant at Birds 1430–1436 suggests that the practice of συκοφαντία aims at providing an income at least this particular sycophant would otherwise earn by honest physical toil, the sort of work a πένης (poor, but basically self-sufficient), not a πλούσιος (rich, sometimes with the nuance “filthy rich”) would perform:
[Πεισέταιρος] τουτὶ γὰρ ἐργάζει σὺ τοὔργον; Εἰπέ μοι,
νεανίας ὢν συκοφαντεῖς τοὺς ξένους;
[Συκοφάντης] τί γὰρ πάθω; Σκάπτειν γὰρ οὐκ ἐπίσταμαι.
[Πεισέταιρος] ἀλλ᾽ ἔστιν ἕτερα νὴ Δί᾽ ἔργα σώφρονα,
ἀφ᾽ ὧν διαζῆν ἄνδρα χρῆν τοσουτονὶ
ἐκ τοῦ δικαίου μᾶλλον ἢ δικορραφεῖν.
Peisetaerus: This is your job? Tell me, young man that you are: you hound foreigners in the courts?
Sycophant: Damn straight I do. I don’t know how to dig.
Peisetaerus: But by Zeus, there are other respectable jobs from which you could be making a living – a man your size – honestly, instead of stitching together lawsuits.
νεανίας ὢν συκοφαντεῖς τοὺς ξένους;
[Συκοφάντης] τί γὰρ πάθω; Σκάπτειν γὰρ οὐκ ἐπίσταμαι.
[Πεισέταιρος] ἀλλ᾽ ἔστιν ἕτερα νὴ Δί᾽ ἔργα σώφρονα,
ἀφ᾽ ὧν διαζῆν ἄνδρα χρῆν τοσουτονὶ
ἐκ τοῦ δικαίου μᾶλλον ἢ δικορραφεῖν.
Peisetaerus: This is your job? Tell me, young man that you are: you hound foreigners in the courts?
Sycophant: Damn straight I do. I don’t know how to dig.
Peisetaerus: But by Zeus, there are other respectable jobs from which you could be making a living – a man your size – honestly, instead of stitching together lawsuits.
As the types seeking a place in Cloudcuckooland are all hoping for some advantage, it would be difficult for Aristophanes to insert into the parade a man whose riches were already secure. Similarly, it would be inconvenient for Aristophanes’ plot to portray the Sycophant in Wealth (848–958) as a member of the city’s propertied class, enjoying a steady income.
In any case, a voluntary participant in court argument, whether we regard him as a malicious opportunist or a public benefactor, an ally of the laws (the Sycophant’s self-description at Wealth 911–915), was a man who felt confident in his ability to perform well in his time before the jury. His speech would not, we may assume, be rife with examples of evitanda.
Jury size and time allotments in the dikastêria varied according to the seriousness of the case. We do know that the dikastêria were convened at least 150 days each year. Mogens Hansen estimates that the juries were at work between 175 and 225 days, and that the number of dicasts empanelled on an average day was 1,500–2,000, the exact number depending in part on that day’s mix of private and public cases and the jury size required for each of them. [25] It is reasonable to assume that, other things being equal, the greater the proportion of small cases, the greater the number of idiôtai who appeared in court to speak for themselves without professional assistance. The complete text of Aristotle’s Constitution of the Athenians might have held some precise information from which one might derive a more securely based estimate of the relevant numbers. The deplorable uncertainties in the text as it has survived deprive us of clean evidence, but I think we can at least make an informed guess.
The passages of the Constitution of the Athenians relevant to jury size and time allotments come at 53.3 and 67–68. From the first, where the text is complete, we learn that jury panels of 201 heard dikai involving sums up to 1,000 drachmas, panels of 401 dikai involving higher amounts. The opening of §68 offers the most potential help in reckoning proportions of the various sizes of jury. A hole in the papyrus is followed by a legible stretch: α τῶν δικαστηρίων ἐστὶ φ. “Five hundred” indicates that the author is speaking now of graphai. Wilcken had proposed filling the hole with τὰ δὲ πολλ, which would then yield the meaning “the majority of the courts are of 500 [jurors]” Kenyon accepted this reading in the OCT of 1920, but it is now universally agreed that more letters are needed to fill the space, and more recent editors agree on τὰ δὲ δημόσια, which would make the transition to public suits explicit but eliminate a remark on the typical size. Still, the text at least shows that private and public cases on the smaller side were important enough for the author of the Constitution of the Athenians to mention; moreover, the impressive workload of courts in session at least 150 times in a year to hear cases, none of which occupied more than a single day, makes it unlikely that the juries were empanelled for a docket of nearly nothing but very large cases.
Adjudication of dikai was sometimes suspended when public funds were insufficient to pay the juries (Lysias 17.3; [26] Demosthenes 39.17 and 45.4); this suggests a caseload that overwhelmed the system, particularly when the city’s financial resources were under the added pressure of warfare. Other things being equal, the greater the number of cases, particularly the private cases that idiôtai would pursue more often than graphai, the greater the probability that poorer men would be coming to court and needing to speak.
We should include under the rubric “dicanic” such procedures as euthunai (reviews of a man’s conduct in office) and dokimasiai (hearings to determine eligibility): like cases of theft, assault, neglect of parents, or homicide, they involved individual citizens whose actions or status were assessed by a group sitting in judgment and empowered to order penalties. I have already mentioned the controversy over the authenticity of Lysias 24, a speech in which a supposedly poor man defends his right to a small public charity. There the man undergoing the procedure (probably a dokimasia) and potentially required to speak would, by necessity, lack the means to pay for a speech. All male citizens were subject to a registration procedure at deme level, and very great numbers indeed (over 700 each year) to the dokimasiai and euthunai, which were required of those serving as magistrates or members of the Boulê. The vast majority of these procedures were probably over and done with very fast, perhaps in less than a minute each. [27] But unless we are so credulous as to believe in the idealized view of Athenian day-to-day comity presented by Thucydides’ Pericles in the Funeral Oration (2.37.2), irritations from private life must have sometimes erupted in the form of challenges at dokimasiai and euthunai, challenges that did not inconvenience exclusively the men of leisure who could function as rhêtores and stratêgoi. [28] It is more probable that procedures that became contentious but involved poor idiôtai – men speaking for themselves as best they could – would leave no trace in the form of professional speech. [29]
Many unhappy Athenian families might have been alike in generating conflicts for which the legal system offered at least the possibility of resolution. For example, there was a legal remedy for failure to care for one’s parents (graphê goneôn kakôseôs), an action made less arduous and hazardous by the absence of time limits for oral presentation and the immunity granted an unsuccessful action (determined by the one-fifth rule) from the usual stiff monetary penalty. [30] It is perhaps significant that we have no speeches written for this action, though there are several allusions to it, [31] which may suggest that idiôtai were especially well represented in this form of litigation. And if a man died without having designated an heir, his estate might become the subject of a diadikasia. [32] Lysias 17 is unusual in that it is the only surviving speech for a particular form of diadikasia (Todd 1993:121), but the reference to the rhetorical challenge the procedure brought with it must have applied to many. The speaker opens (17.1) with an acknowledgment (or pretense) that he has ambitions that exceed his speaking ability:
ἴσως τινὲς ὑμῶν, ὦ ἄνδρες δικασταί, διὰ τὸ βούλεσθαί με ἄξιον εἶναί τινος ἡγοῦνται καὶ εἰπεῖν ἂν μᾶλλον ἑτέρου δύνασθαι· ἐγὼ δὲ τοσούτου δέω περὶ τῶν μὴ προσηκόντων ἱκανὸς εἶναι λέγειν, ὥστε δέδοικα μὴ καὶ περὶ ὧν ἀναγκαῖόν μοί ἐστι, ἀδύνατος ὦ τὰ δέοντα εἰπεῖν. οἴομαι μὲν οὖν, ἐὰν πάντα διηγήσωμαι τὰ πεπραγμένα ἡμῖν πρὸς Ἐράτωνα καὶ τοὺς ἐκείνου παῖδας, ῥᾳδίως ἐξ αὐτῶν ὑμᾶς εὑρήσειν ἃ προσήκει σκέψασθαι περὶ ταύτης τῆς διαδικασίας.
Because of my desire to make a name for myself, gentlemen of the jury, some of you may think I could also speak better than other people. In fact I am so far from being competent to speak about things that do not concern me that I fear I may be incapable of saying what is necessary even about matters I must talk about. Nevertheless, if I give you a full account of our dealings with Eraton and his children, I think you will easily discover what attitude you should take towards this adjudication [diadikasia].
Whatever the truth about what this speaker might do working on his own, his very statement of incapacity has been written for him by a prominent logographos. But this fact does not make it any less likely that many Athenians were forced to speak without expensive assistance or else forgo their claims to an inheritance. [33]
I close this chapter with a caution. We must not forget that we do not know the degree to which litigants, regardless of their economic status, relied on themselves, the assistance available gratis from friends and relatives, the confidence they felt in their own persuasive powers, and whatever profit they could draw from written materials. Finally, we should not erect too high a wall between forensic speech occasions per se and the meetings that came before, and sometimes obviated, sessions of the dikastêria. According to the Constitution of the Athenians litigants were obliged to present all the “laws, challenges, and evidence” that they intended to present at court if the arbitration failed (53.3). Arbitration and pre-trial sessions were in themselves less demanding than court appearances, since they were not public events, viewed by a large jury and spectators (e.g. Demosthenes 47.12) and precisely timed. Since arbitration was a service required of all Athenian men as they left the military ranks (Constitution of the Athenians 53.4–6), and these men were not all adept readers, it cannot be the case that litigants simply put copies of documents down on a table and allowed the written words to speak for themselves; hence, they did require speaking about contentious happenings, and the outcome was unpredictable and potentially momentous. [34] My guess is that men saw even these preliminary meetings as requiring as much careful and persuasive speech as they could muster, whether on their own or with professional help. [35]
Footnotes
[ back ] 1. To cite a by now old example, the first page (v) of Bonner 1927: “The law required every man to plead his own case in court”; and a recent one: “each prosecutor and each defendant had to speak for himself” (Goldhill 2002:62). Kennedy 1998:219 adds an even more doubtful “expectation” pertaining to symbouleutic (political) speech: “Male citizens were expected to speak in the political assembly and were required to speak on their own behalf in prosecution and defense in the courts of law.”
[ back ] 2. For a brief survey of opinion on the matter, see Rubinstein 2000:14.
[ back ] 3. To be sure, Dover’s method has the advantage of working directly from preserved texts; what I attempt is of course more speculative.
[ back ] 4. A subset of the idiôtai would be the country types mentioned by Aristotle Rhetoric 1408a9: “A rustic and an educated person would not say the same thing nor [say it] in the same way” (translation by Kennedy 1991).
[ back ] 5. For a survey of orators’ strategies in countering prejudice against the rich see Ober 1989, chapter 5, especially 220–226.
[ back ] 6. Cooper 2007:206 with n15 refers to the works of Anaxagoras selling at one drachma that Plato has Socrates mention at Apology 25d, and remarks that “presumably works on rhetoric came equally cheap.” I think that Plato is engaging in mockery, not accurate reportage, and that full speeches (if they were available in 399) would have cost far more.
[ back ] 7. Hawhee 2004:13 and chapters 5 and 6 speculates on the gymnasium as a locus for citizen training.
[ back ] 8. Plato’s Socrates obviously does not count as an exception; even the historical Socrates, reported verbatim, would be a sui generis litigant.
[ back ] 9. For a compact review of this question see Hansen 1990.
[ back ] 10. Roisman (2005:118) offers no opinion on the subject, merely stating the undeniable fact that “[m]ost of the claimants and defendants featured in the orations came from the social and financial elite.”
[ back ] 11. An easy inference from the severe penalties assessed against men who evade this service (Aristotle Constitution of the Athenians 53.5).
[ back ] 12. In a few jurisdictions, however, limits are far higher; see www.nolo.com/lawcenter/ency/article.cfm/objectID/ADF1FA1B-C67D-4B95-AD615532C3AE0862.
[ back ] 13. Excepting only inheritance cases. Admittedly, the text gives a motive other than relieving court congestion: καὶ δίκην οὔτε διδόασιν οὔτε λαμβάνουσιν, ἵνα μὴ πρό[φ]ασις ᾖ τ[ο]ῦ ἀπιέναι.
[ back ] 14. See Davies 1981, chapter 5, on the instability of fortune. He cites Demosthenes 42.4: τὸ διευτυχεῖν συνεχῶς τῇ οὐσίᾳ οὐ πολλοῖς τῶν πολιτῶν διαμένειν εἴθισται (87; see also Xenophon Memorabilia 2.8.1–6 [Eutheros]). The speaker of Demosthenes 57 says that his father, whom he describes as poor (penês), had to defend his Athenian citizenship before assemblies of his deme and phratry, and that he himself is sometimes reviled for his poverty (penia).
[ back ] 15. Unless, that is, there was no requirement that a defendant speak in his own defense and he could place the entire burden on synêgoroi (see the opening of this section).
[ back ] 16. Antidosis 41: “…that those who compose speeches for others who have cases in the lawcourts are legion is apparent to everyone.”
[ back ] 17. I heard “reflectory” first from my teacher Benedict Einarson, but do not know whether this was his own fine invention.
[ back ] 18. See Lavency 1964:59 with n2. Of course, no opinion is necessarily true just because it is common. In the early years of the Iraqi war, a substantial number of Americans, and an even greater portion of American troops in Iraq, believed that Saddam Hussein was complicit in the terror actions of September 11, 2001.
[ back ] 19. When first published, the text appeared to allude to a 20 percent fee, but this was a misreading of the papyrus by the editor: see Dover 1968b:157–158.
[ back ] 20. The supposedly numerous “welfare queens” living luxuriously on public funds come to mind as another example of such a myth.
[ back ] 21. The insects’ more or less continuous singing more closely resembles speech per se than the intermittent and polyphonic jurors’ thorubos.
[ back ] 22. Philocleon presents himself as a poor man (1132–1133, 1170, 1188–1189), but his son is evidently fairly well off: see MacDowell ad Wasps 10. On the economic status of the jurors see Markle 1985.
[ back ] 23. See MacDowell ad loc. for the erroneous identification of this man as Euripides in two manuscripts.
[ back ] 24. Antiphon 2.2.12 is at least a likely reference to the practice of malicious litigation.
[ back ] 25. Hansen 1979, 1999:187 (cf. 188: “The passion of the Athenians for litigating and sitting in judgement is truly astonishing”).
[ back ] 26. The speaker’s expression, “because of the war,” is regrettably imprecise: see MacDowell 1971.
[ back ] 27. Euthunai that “made the newspaper,” a very small portion of the more than 1,200 procedures conducted each year, are collected in Hansen 1989:10 with n32.
[ back ] 28. Preserved speeches written for dokimasiai involving challenges to election to office are very rare. All are Lysianic – 16, 25, 26, 31, and fragment 9 (for Eryximachus) – and date from the early fourth century.
[ back ] 29. My guess is that challenges at dokimasiai for office were not as rare as Hansen supposes, hence I cannot fully agree with his summary remark at 1999:220: “Dokimasia must have been virtually always a mere formality, and to our way of thinking it must have been deadly boring; that the Athenians went through it year after year for centuries shows that their attitude to this sort of routine must have been quite different from ours. They evidently enjoyed participation in their political institutions as a value in itself.”
[ back ] 30. Aristotle Constitution of the Athenians 56.6 and Harpocration svv. κακώσεως and ἐιδαγγελία.
[ back ] 31. Including Isaeus 1.39, 8.32; Demosthenes 35.47–48; Hyperides In Defense of Euxenippos 6.
[ back ] 32. The range of this procedure is controversial: see Harrison 1968:1.214–217.
[ back ] 33. An important aspect of inheritance, the adjudication of disputes over the marriage of an epiklêros (a woman “attached” to an estate, but disbarred from controlling it), presents a similar picture: a situation that is likely to have forced an idiôtês to speak without professional assistance.
[ back ] 34. If an appearance before one of the Forty over a matter of less than ten drachmas stands at one extreme, participation in a public action involving the city’s most powerful men stands at the other: see Rubinstein 2000:192–193, who discusses the possibility of non-elite participation in the form of sunêgoria.
[ back ] 35. The inherent theatricality or “staginess” of legal confrontation has received much attention since the 1980s, but I see a danger of circularity in assuming that the frequent use of legal motifs in tragedies and comedies (especially New Comedy) not explicitly centered on rhetoric and the institutions of justice can by itself supply evidence that real Athenians, the poor as well as the rich, had what Adele Scafuro calls a “forensic disposition” (Scafuro 1997:9–10, 25–27, and passim). I much regret the need to abstain from this material, particularly since it shows characters casting their speech in recognizably legal form in anticipation or in the immediate aftermath of a confrontation.