DEMOSTHENES AT THE BAR.
It has seemed most convenient not to interrupt our sketch of the political career of Demosthenes with any allusions to his purely forensic engagements. He became, comparatively early in life—that is to say, when he was probably under thirty years of age—a very successful pleader in large practice. It may be as well now to give the reader some idea of the work with which he was occupied, and of the speeches which in this capacity he was called on to deliver.
At Athens there was no separate and distinct class answering to our bar. But there were professional orators and rhetoricians in abundance, who made it their business to compose speeches for plaintiffs and defendants. They did not, however, as a rule, make the speeches themselves; they merely prepared them and put them in the hands of their clients, who committed them to memory and then addressed the court. Of course it would often happen that a man felt himself quite unequal to such an ordeal, and would get an experienced speaker to plead for him. Most, however, of the forensic speeches of Demosthenes which have come down to us, were written for delivery by the plaintiff or the defendant in person. Part of the orator's art consisted in adapting them to the style and manner of man his client happened to be. This circumstance often gives piquancy to these speeches. They abound in amusing passages illustrative of many varieties of Athenian life. We have descriptive touches of the peculiar ways of the commercial rogue, of the money-lender, of the fraudulent trustee. Fortune has been kind in preserving for us something like thirty orations of Demosthenes, in which these and kindred figures present themselves to our notice. We thus peep into the banking-house and the factory, and see the Athenian citizen bargaining with merchants and shipowners, or busy with his farm, or making his last will and testament.
Athens was a city in which lawsuits could not fail to be plentiful. It was a centre of trade, and a resort of foreigners from all parts. Then, too, there were the mines of Laurium along the coast; there were quarries of marble; and the adjacent seas were famous for their fisheries. Athenian manufactures, too, were highly prized. From the shores of the Black Sea and the islands of the Ægean there was a good trade in corn, timber, wine, and wool. Here were all the materials of commerce, and consequently of litigation. Many an Athenian citizen was himself in business; and the city seems to have swarmed with bustling, enterprising foreigners who found it convenient to make it their home. The law courts had plenty of work to do—so much so, indeed, that the "law's delay" appears to have been as familiar to Athenians as to ourselves. "Some people," says , if he really wrote the treatise attributed to him on the Athenian republic, "complain that a man often waits a twelvemonth at Athens before he can obtain an audience of the Senate or of the popular assembly. The fact is, they have so much to do there that it is impossible to attend to every man's application; some, therefore, are compelled to go away unheard." Ill-natured persons, it seems, hinted that anybody could obtain a hearing by means of a bribe. Xenophon admits that there may be some truth in this; but he adds, speaking from his own knowledge, "that for no amount of gold and silver which could be offered would it be possible for the Athenians to transact all the business that is brought before them." Athens, in fact, was the place to which nearly all causes from the islands of the Ægean were brought for trial; and to which, too, it was probably best and safest that they should be brought. Athenian trials were conducted in a way which to us seems singular, and which at first sight might appear very unfavourable to the administration of justice. Causes were heard, as with us, before juries; but at Athens a jury commonly numbered 500, and might number 1000 or even more. It was, in fact, trial before a popular assembly. There was a president, but he was not armed with the controlling powers of an English judge. Everything was left to the jury; the law of the case as well as the facts was for them to decide. To us this may seem the height of absurdity; but still at Athens it worked moderately well, and in a majority of cases we may believe that it secured at least substantial justice. The Athenian juror, it is true, had not received what we call a legal education; but he was naturally critical and sharp-witted, and he was well practised in the hearing of causes. It is quite possible that the average decisions of an Athenian jury may have been as good and satisfactory as those of an English. There was, of course, a danger of their being swayed too much at times by political considerations. But to this we know that an English jury is also liable. There was another and a worse danger. The population of Athens was comparatively small; and so it would often happen that plaintiff and defendant, and the case at issue between them, would be well known to the jurors. The Athenian pleader was continually appealing to the personal knowledge of the jury, and would in this manner supplement deficiencies in the evidence. "He is a scoundrel; you all know him to be one,"—this was the sort of language commonly addressed to a jury at Athens. Æschines, in prosecuting one Timarchus, dwells on the notoriety of the man's guilt and wickedness—"Such," he says, "is the testimony of the whole people of Athens, and it is not right that they should be convicted of perjury." This strikes us as a very loose method of procedure. Yet we find it repeatedly in the speeches of Demosthenes. And it is what we must expect where the judicial system is made thoroughly democratic. We must not be surprised at the savage invective with which the greatest Athenian orators thought it seemly to interlard their speeches. Even with us and all our restrictions, advocates contrive occasionally to indulge in considerable licence, and did so formerly to a much greater extent; and it is, perhaps, a question whether some of the most offensive passages in Demosthenes and Æschines might not be paralleled from English pleadings.
Another evil of the Athenian judicial system was the division of responsibility. One out of 500 or 1000 jurors might very well shelter himself under the excuse, that if he decided wrongly from carelessness or partiality, the result would not be much affected. On the other hand, there were advantages which will occur to the minds of those who are acquainted with the history of free institutions. Corruption and bribery cannot have been particularly easy. Nor, again, could anything like intimidation be well practised. The fact, too, that rich and poor were brought together to discharge an important public function, would have a salutary effect. It would make them feel that they were members of one commonwealth, and inspire them with a respect for its laws. It would call out many of their best sentiments, as well as sharpen their intellects. Their decisions may have sometimes been such as we with our modern ideas cannot approve; but, on the whole, it may be assumed that they commanded the confidence of the people. The Athenian may have had a perverse fondness for listening to the wranglings of rival pleaders; but he did his best generally to hear both sides fairly, and to decide rightly. The jury system, with all its accompaniments of trained oratory and carefully-composed speeches, was contemporaneous with the marvellous development of Athenian literature in the age of Pericles. To it we are certainly indebted for some of the most splendid monuments of human genius.
Such numerous juries could hardly have been fit to deal with cases involving a multitude of intricate details connected with money accounts or valuations of property. Matters of this kind were usually referred, as with us, to a court of arbitration—public arbitrators being annually appointed. Of these we hear continually in the forensic speeches of the Athenian orators, and we may take it for granted that much of the law business was disposed of by them. Indeed, it was the regular practice to submit ordinary private disputes to arbitrators in the first instance; but, as might have been expected in a democratic state, there was always an appeal from their decisions to a jury.
On the whole, it is not unlikely that justice was fairly well administered in the Athenian courts. Such, at all events, seems to have been the opinion of the Greek world; and we can hardly suppose that that opinion was without foundation. Some of the drawbacks of the system have been already noted, and they were no doubt considerable. A clever and unscrupulous advocate might have had a better chance at Athens than he would have with us. It is, of course, an immense advantage that a trained lawyer should preside over a court, and sum up the case, and point out to the jury the general principles by which they should be guided. It is probable that the want of this was often felt at Athens, and led occasionally to unfortunate results. Still, we may be sure that the average Athenian was a man of intelligence, and perfectly open to reason. Practice, too, made him tolerably well acquainted with his country's laws. It is the greatest mistake to conceive of Athens as "a fierce democracy." Her citizens were for the most part moderately-cultivated persons, of a tolerant temper, and willing to obey the laws and the constitution. A successful Athenian advocate must have come up to a rather high standard; and if his invective was sometimes coarse and offensively personal, it must have been set off by a certain amount of wit, and have been accompanied with acute reasoning.
Much of the litigation at Athens arose out of bottomry cases—that is, loans of money on the security of a ship or of its cargo. Business of this kind was transacted on a great scale; and as the risk was considerable, the interest charged was high—as much sometimes as thirty per cent. There seem to have been endless trickeries connected with it. One of Demosthenes' speeches, for instance, was on behalf of two joint lenders who had advanced some money on the security of a wine cargo. Two brothers, merchants of Phaselis in Pamphylia, were the borrowers. Phaselis, it appears, had a very bad commercial reputation; and there were said to be more actions brought against its traders at Athens than against all the other traders put together. In this case Demosthenes' client stated that the borrowers of his money had broken their agreement—"that they had not shipped the stipulated quantity of wine; that they had raised a further loan on the same security; that they had not purchased a sufficient return cargo; that, on their return, they had not entered the regular port of Athens, but had put into a little obscure harbour known as 'Smugglers' Creek;' and that, when the repayment of the loan was demanded, they falsely represented that the vessel had been wrecked." Before the matter was settled, one of the borrowers died, and his property went to his brother, Lacritus, who, according to the lenders' statement, had verbally engaged to see that the loan should be repaid. So Lacritus was sued for the amount, although very possibly he was not legally liable, and may merely have been a "referee" for his brother, and have stated, as such, that to the best of his belief they were solvent. He was a man of some note, having been a pupil of Isocrates, and being himself a rather celebrated teacher of rhetoric. He was, in fact, what the Greeks called a "sophist." On this he seems to have presumed; and he went about bragging of his connection with "the great Isocrates." Demosthenes makes his client say: "These sophists are 'a bad lot.' It is no affair of mine if a man chooses to be a sophist, and to pay fees to Isocrates; but they must not, because they think themselves clever, be allowed to swindle other people out of their money. Lacritus does not trust to the justice of his case; but he thinks that, as he has learnt oratory, he shall be able to make you think exactly what he pleases. Perhaps, as he is so clever, he will undertake to prove that black is white—that the money was never borrowed at all—or that it has been paid—or that the bond is waste paper—or that the borrowers had a right to use our money as they liked." It is possible, as has been supposed, that Demosthenes is really hitting at Isocrates in his abuse of Lacritus.
In one of his speeches he argues against the right of a man to take a name already borne by one of his brothers. The case is a rather singular one. Mantitheus, the son of Mantias, brings an action against his half-brother Bœotus for having got himself registered as Mantitheus. Bœotus was the son of Mantias by a mistress, herself an Athenian citizen, and so capable, according to Athenian law, of transmitting citizenship to her offspring. Every citizen's child was enrolled or registered on the citizen-list at an early age, and then again subsequently on reaching manhood. Bœotus received his name on the first of these occasions. Before the second registration had taken place, his father died. Disliking the name, which suggested a familiar Greek proverb, "like a Bœotian hog," he contrived on this second occasion to get himself enrolled under his brother's name of Mantitheus. In this manner the legal designation of the two brothers became the same. It should be noted that at Athens a citizen was described by his own name, by that of his father, and that of his parish or township—Attica being divided into so many townships, or demes, as they were called. In a comparatively small community this might not be inconvenient. What, however, Bœotus had done, could hardly fail to lead to confusion. His half-brother, in the speech composed for him by Demosthenes, hints that matters would be all the worse, as Bœotus kept rather questionable company. Unpleasant mistakes, too, as he points out, would probably arise out of unpaid debts and appearances in the law courts. In fact, the son of the lawful wife would often be credited with the scrapes into which the son of the mistress was likely to get himself
"You tiresome Bœotus," says Demosthenes' client, who really seems to have been a much-injured man, "I would wish you, if possible, to renounce all your bad ways; but if that is too much to hope, pray oblige me to this extent: cease to give yourself trouble; cease to harass me with litigation; be content that you have gained a franchise, a property, a father. No one seeks to dispossess you; nor do I. If, as you pretend to be a brother, you act like a brother, people will believe that you are my kinsman. But if you plot against me, go to law with me, envy me, slander me, it will be thought that you have intruded into a strange family, and treat the members as if they were alien to you. As to me personally, however wrong my father may have been in refusing to acknowledge you, I certainly am innocent. It was not my business to know who were his sons; it was for him to show me whom I was to regard as brothers. As long as he forebore to acknowledge you, I held you no kinsman; ever since he acknowledged you, I have regarded you as he did. You have had your portion of the inheritance after my father's death; you participate in our religious worship, in our civil rights—no one excludes you from these. What would you have? Whoever hears the name will have to ask which of us two are meant; then, if the person means you, he will reply, 'The one whom Mantias was compelled to adopt.' Do you wish for this?"
We pass to quite a different case. It is a dispute between two neighbouring Attic farmers. Their holdings were in a hilly part of Attica, and were separated by a public road. It is an action for damages which the plaintiff, Callicles, alleged that he had sustained through the obstruction of a water-course, which carried off the drainage from the surrounding hills. The defendant's father had built a wall on his land, with the view of diverting the water into the road. It seems that in Attica a proprietor might turn off his drainage into a public way, to the great detriment, as may well be supposed, of the country roads, which, in hilly districts, must at times have been almost impassable. The effect of the wall in this case was, that after heavy rains the plaintiff's farm was overflowed, as well as the road. For this the plaintiff brought his action. The defendant, Demosthenes' client, pleaded in justification that the wall in question had been lawfully erected by his father fifteen years ago; that no objection was then raised by the plaintiff's family; that the so-called water-course was not really a water-course, but was part of his own land, as it was planted with fruit-trees, and contained an old family burial-ground. The stream, too, which caused the mischief, did not come to the defendant from a neighbour's farm; it flowed down the road both above and below him: the flood which it occasioned in wet weather was a natural misfortune, from which others had suffered as well as the plaintiff—only, they had never thought of going to law about it. The defendant broadly hints that the plaintiff has an eye to his property, and is trying to oust him from it by a vexatious action. The matter in dispute was trifling enough, and the jury must have been inclined to laugh at the solemnity with which they were implored to give their best attention to all the details of the case. "There is no greater nuisance" (so the defendant begins his pleading) "than a covetous neighbour, which it has been my lot to meet with. Callicles has set his heart on my land, and worries me with litigation. First he got his cousin to claim it from me, but I defeated that claim. I beseech you all to hear me with attention—not because I am any speaker, but that you may learn by the facts how groundless the action is." After he has explained the facts, he asks pathetically what he is to do with the water, if he may not drain it off either into the public road or into private ground. "Surely," he adds, with a touch of bucolic humour, "the plaintiff won't force me to drink it up?" The damage done could not have been very ruinous, if we may judge from a single specimen. It appears that the mothers of the two litigants used to visit each other, as country neighbours; and on one occasion, when the defendant's mother was calling at the plaintiff's house, she found the family plunged in the deepest distress, and apparently crushed by some more than ordinary calamity. It would seem that the rustic mind then, as now, was peculiarly sensitive to the most ludicrously trifling loss, and delighted in describing it with the most violent exaggeration. The injured farmer's wife, on this occasion, pointed with tears to four bushels of barley which had got wet and were being dried, and to a jar of oil, which had indeed fallen down, but which was not damaged. For this they wanted to claim, according to the defendant, 1000 drachms, or about £40, by way of compensation. An Attic farmer, it would seem (like his English representative), was not likely to suffer from asking too little. There is something very characteristic in the following remark, which Demosthenes' client makes about his opponent: "In going to law with me," he says, "I hold the plaintiff to be thoroughly wicked and infatuated."
In another somewhat interesting case, Demosthenes pleads for an unfortunate man who had been ejected from his township, and was thereby in danger of ceasing to be an Athenian citizen. At Athens, citizenship was the subject of the strictest scrutiny; and the registers of the townships were kept with the utmost care. Every citizen, as has been already noted, had to be twice registered; and to insure accuracy, and to exclude questionable persons, the lists were from time to time revised. Even with all these precautions, cases of disputed citizenship not unfrequently occurred. In the case which we are about to consider, Demosthenes' client had been struck off the register of his township on the occasion of a revision. The man's father had been taken prisoner during the latter part of the Peloponnesian War; and having lived some years in foreign parts," he spoke Attic rather indifferently. However, on his return to Athens, he had resumed his citizenship; and transmitted it, without question, as it is alleged, to his son. He was very poor, and he and his wife had to eke out a livelihood by the humblest of occupations. His son, it seems, had made enemies in his parish, and among them one Eubulides, against whom he had given evidence in a court of justice. Eubulides, when he became mayor of the township, had the registers revised, and contrived to get the man's name struck off. He managed this by a sort of trick. The revision of the register took place at Athens, from which the township was about five miles distant. A good deal of time was wasted in making speeches and drawing up resolutions; and the case of Demosthenes' client was taken last of all. It was now dark, and all but about thirty members of the township had gone home—and these, it is said, were in the interest of Eubulides. When the poor man's name was called, Eubulides started to his feet, assailed him with a volley of abuse, and insisted on a vote of expulsion. It was useless to ask for an adjournment; the business was hurried through, and sixty ballot-balls were found in the box against him, though it seems that only thirty townsmen were present. The result was utter ruin to the man. Loss of citizenship meant social death, and probably slavery. He makes through his counsel a piteous appeal to the jury, and says that if their verdict is adverse he shall commit suicide, that he may at least have the satisfaction of being buried by his relatives in his native country." I have been shamefully treated by this Eubulides"—so he begins; "and I pray you, considering the great importance of the present trial, and the disgrace and ruin which attend conviction, to hear me, as you have my opponent, in silence." Further on in his speech he touches on his poverty, and the humble way in which his family maintain themselves.
"We confess that we sell ribbons, and live not in the way we could wish. We are so low down in the world that our opponent may go out of his way to abuse us. It seems to me that our trafficking in the market-place is the strongest proof of the falsity of this man's charges. My mother, he says, sold ribbons in the market-place. Well, if she was an alien, they should have inspected the market tolls, and shown whether she paid the alien's toll, and to what country she belonged. If she was a slave, the person who bought her, or the person who sold her, should have been called to give evidence. Then he has said she was a nurse. We do not deny she was, in those evil days when all our people were badly off. But you will find many women who are citizens taking children to nurse. Of course, if we had been rich, we should not have sold ribbons, or have been at all in distress. But what has that to do with my descent? Pray do not scorn the poor (their poverty is a sufficient misfortune for them), much less those who try to get an honest livelihood. Poverty compels free men to do many mean and servile acts, for which they deserve to be pitied rather than to be ruined. They tell me that many women, citizens by birth, have become both nurses and wool-dressers and vintagers, owing to the misfortunes of our country at that period. I have confidence in my case, and I come as an appellant to your tribunal for protection. I know that the courts of law are more powerful not only than my fellow-townsmen, but even than the Council of the popular Assembly; and justly so—for your verdicts are in every respect most righteous."
He concludes his address to the jury with the threat of suicide already mentioned.
One more of these cases must suffice, It is an amusing one—an action, as we should say, for assault and battery. There were, it seems, occasional outbursts of rowdyism even at refined Athens, and the police were not always "on the spot" to repress them. Some of the "fast" young men about town formed themselves into clubs—like the "Mohock Club" of the last century, whose lawless proceedings are the subject of one of the numbers of the 'Spectator.' "An outrageous ambition (as the 'Spectator' says) of doing all possible hurt to their fellow-creatures was the great cement of their assemblies, and the only qualification required in the members." There was a club at Athens which called itself the Triballi, the name of one of the wildest and most savage tribes of Thrace. The members of this delightful fraternity used to commit all manner of horrid and indecent outrages on inoffensive citizens as they were taking the evening air or returning home from parties. One Conon and his sons specially distinguished themselves. Their victim on one occasion retained Demosthenes for his counsel. They had all been on foreign military service together, and it was then that the practical jokes and annoyances were begun of which Demosthenes' client complains. Conon and his set would drink all day after lunch; and so by dinner-time they were only fit for drunken frolics. "At first," the plaintiff says, "they played tricks on his servants; at last on himself and his party. They would pretend that our servants annoyed them with smoke in cooking, and were saucy; then they beat them, and played all sorts of dirty, brutal jokes on them. We expressed our disgust; and when they insulted us, we all went in a body to the general, who gave them a severe reprimand." In this manner a very sore feeling grew up; and when they all returned to Athens, the assault took place which was the ground of the action.
"When I had got back to Athens," the plaintiff says, "I was taking a walk one evening in the market-place with a friend of my own age, when Ctesias, Conon's son, passed us, very much intoxicated. Seeing us, he made an exclamation like a drunken man muttering something indistinctly to himself, and went on his way. There was a drinking-party near, at the house of Pamphilus, the fuller. Conon and many others were there. Ctesias got them to leave the party and go with him to the market-place. We were near the Leocorium" (a small temple) "when we encountered them. As we came up, one of them rushed on my friend and held him. Conon and another tripped up my heels, and threw me into the mud, and jumped on me, and kicked me with such violence that my lip was cut through and my eye closed up. In this plight they left me, unable to rise or speak. As I lay I heard them use dreadful language, some of which I should be sorry to repeat to you. One thing you shall hear. It proves Conon's malice, and that he was the ringleader in the affair. He crowed, mimicking fighting-cocks when they have won a battle; and his companions bade him clap his elbows against his sides, like wings. I was afterwards found by some persons who came that way, and carried home without my cloak, which these men had carried off. When they got to the door, my mother and the maid-servants began crying and bewailing. I was carried with some difficulty to a bath; they washed me all over, and then showed me to the doctor."
It seems to have struck Demosthenes that possibly some of the jury would be inclined to laugh at this somewhat ludicrously pathetic picture.
"Will you laugh," he makes his client say, "and let Conon off, because he says we are a band of merry fellows who, in our adventures and amours, strike and break the neck of any one we please? I trust not. None of you would have laughed if you had been present when I was dragged and stripped and kicked, and carried to the home which I had left strong and well; and my mother rushed out, and the women cried and wailed as if a man had died in the house, so that some of the neighbours sent to ask what was the matter."
Conon and his associates may well have been a terror to peaceable citizens, if we may trust the following little sketch of their proceedings:—
"Many of you know the set. There's the grey-headed man, who all day long has a solemn frown on his brows, and wears a coarse mantle and single-soled shoes. But when they get together, they stick at no wickedness or disgraceful conduct. These are their fine and spirited sayings: 'Shan't we bear witness for one another?' 'Doesn't it become friends and comrades?' 'What will he bring against you that you're afraid of?' 'Some men say they saw him beaten?' We'll say, 'You never touched him.' 'Stripped of his coat?' We'll say, 'They began.' 'His lip was sewed up?' We'll say, 'Your head was broken.' Remember," solemnly adds the plaintiff, "I produce medical evidence; they do not—for they can get no evidence against me but what is furnished by themselves."
It is to be hoped that the jury did not laugh, but were persuaded by Demosthenes to make an example of such offenders. Blackguardism could hardly go further than to rob a man of his cloak, in addition to beating and kicking him. The Athenian rowdy, if Conon and his set were fair and average types of the genus, certainly deserved little mercy.
- Speech against Callicles.
- Speech against Eubulides.
- The last years of the Peloponnesian War.
- No. 324