Published online by Cambridge University Press: 23 February 2012
In a short article published one hundred years ago, J.W. Headlam presented the thesis that in Athenian law the function of the challenge to torture slaves was to propose an alternative method of trial outside the dikastêrion, a kind of ordeal. The thesis met immediate opposition and despite a brief rejoinder by Headlam to his first critic it has been rejected by those writing on Athenian law up to now, including G. Thür, whose monograph is by far the most important work on the subject. However, the significance of the issue compels us not to let it drop. For it touches not only upon the use of torture, which affects our understanding of the position of slaves, but also upon the Athenian rules of evidence, indeed, their entire method of dispute resolution. The purpose of the present paper is, first (I) to revive Headlam's thesis in a modified form and (II) to answer the criticisms against it. I shall argue that Headlam was essentially correct with regard to the judicial function of the challenge, but his association of it with the trial by ordeal was misplaced. Finally, (III) I shall touch upon the influence of rhetoricians in Athens, for they appear responsible for some of the disagreement.
2 See Thompson, C.V., ‘Slave torture in Athens’, CR viii (1894) 136Google Scholar and Headlam 136–7.
4 Thür, G., Beweisführung vor den Schwurgerichtshöfen Athens. Die Proklesis zur Basanos (Vienna 1977).Google Scholar Thür's conclusions have been followed recently by Gagarin, M., ‘The nature of proofs in Antiphon’, CP lxxxv (1990) 22–32Google Scholar, and Todd, S., ‘The purpose of evidence in Athenian courts’, in Nomos. Essays in Athenian law, politics and society, Cartledge, P., Millet, P. & Todd, S., eds. (Cambridge 1990) 19–40, esp. 34–5.Google Scholar Sympathy with the views of Headlam and those expressed here has now been expressed by the social historian, Hunter, V., Policing Athens. Social control in the Attic lawsuits 420–320 BC (Princeton 1994) 70–95.Google Scholar
5 I am in complete agreement with Thür 181 when he argues that it was the function of the basanos either to affirm or to deny a statement formulated in the challenge. The torturer would not fish for new information.
6 Headlam I.
7 Pollux vii 62: The Suda, s.v., mentions private arbitration as well. Cf. Dem. xlv 15–16.
9 Thür 211–14.
10 Isoc., Trap. xvii 55:
11 Lyc., Leocr. i 32:
12 [Dem.], Ev. xlvii 5:
13 [Ant.], Tetr. i 4.8:
14 Dem., Pant. xxxvii 40:
15 [Dem]., Neaera lix 121:
16 Lys., Olive-Stump vii 37:
17 Aesch., Emb. ii 127:
18 See Dem. xlv 16. Cf. Harrison 149 n. 4. Thür 190–2 is inclined to accept the legal, if not the practical possibility of a basanos before the dicasts in private disputes. In public disputes, moreover, where a whole day was allocated to the disputing positions, he sees the completion of Aeschines' challenge as more practically possible. I am more persuaded by Demosthenes's simple denial of the possibility in xlv 16. The rhetorical flash of Aeschines' challenge seems little diminished by the fact that its fulfilment was a legal impossibility. Andocides i 25–6 and 35 makes analogous mock challenges.
19 Dem. Aph. 3 xxix 11: See also xxix 38 and 51–3 and xxx 35.
20 Thür 211–13.
21 Thür 152–8.
22 See Mirhady (n. 8) and Thür 205–6.
23 The assumption that the basanos procedure was not employed during this period is shared by Thür, who makes that assumption the basis of his sixth chapter.
24 Headlam 5.
25 Thür 111–31 affirms the integral presence of the verb in reference to the slaves.
26 There are several passages in Attic literature in which a speaker expresses a willingness to undergo fire, voluntarily, in order to demonstrate good faith: Soph. Ant. 265–6, Xen., Symp. 4.16, Ar., Lys. 133 and Dem., Conon liv 40. But in these situations the pain to be endured is not meant to elicit any information or to act as a test. They also appear, accordingly, to illustrate something different from the mediaeval ordeal.
27 I follow here the arguments of Thür 207–11.
28 Lys., Olive-Stump vii 37:
29 vii 36: The ‘reversal argument’ (hypothetische Rollentausch) is common; it is discussed by Solmsen, , Antiphonstudien (Berlin 1929) 10–14Google Scholar and Thür 269–71.
30 Isoc., Trap., xvii 54: See Thür 294–6.
31 [Dem.], Ev. xlvii 35:
32 Dem., On. I xxx 27: cf., Dem. xlv 62.
33 On such partial admissions and the procedural consequences of them, see Thür 152–8.
34 [Dem.], Tim. xlix 57:
35 Thür 208 n. 12.
36 [Dem.], Neaera lix 120:
37 [Dem.], Neaera lix 125:
38 Lyc., Leocr. i 28: Here the verb for the judges' ‘knowing’ is since they can have direct knowledge of the refused challenge, which can be removed from the evidence jar and read aloud.
39 i 29 Cf. i 35–6 and Thür 268–9.
40 Lys., iv 11:
41 iv 14:
42 Thür 209; cf. 178–81.
43 Is., Ciron viii 10:
44 Dem., Aph. 3 xxxix 21 also presents such a situation, but the argumentation is slightly different. In III, below, I shall discuss how Is. viii is notable for its confusion of the functions of marturia and basanos.
45 Dem., Steph. I xlv 59:
46 [Dem.], Call. lii 22:
47 Thür 212 mentions three other passages that he says are predicated on the Beweisfunktion of the basanos, Isoc. xvii 54, Is. viii 10 and Dem. xxx 37. None of these affects Headlam's thesis in any way that has not already been dealt with. The parallel employment of the basanos-challenge and the oath-challenge in Dem. xxix 25 ff. underlines that the function of both challenges is the same, to propose an alternative means of settlement.
48 Dem., On I xxx 35:
49 Ant., Stepmother i 7:
51 This text suggests an interesting complication. The fact that there is more than one slave, as well as the fact that the verb used of the slaves' statements under torture is ‘to agree’ allows either that the slaves as a group would not have agreed with the prosecutor or that they would not have agreed with each other. Although in this case the first alternative is the only one possible, the second would clearly present difficulty for the Athenian view of torture.
52 Thür 210 also mentions three texts in which he understands the terminological distinction between marturia and basanos to be blurred. They are [Dem.] xlvii 8, liii 22 and lix 122. The second is not problematic: the marturia is not identified with the basanos in liii 22. I shall discuss the other two in section III (nn. 75–6).
53 [Dem.], Nicostr. liii 24:
54 Dem., Conon liv 27:
55 In [Dem.] xlvii 13–15 the speaker uses as evidence against the good faith of his opponent that, despite allegedly offering his slave for torture, he did not have her available immediately to hand over.
56 Much of Thür's analysis of the tactical use of the basanos-challenge is unaffected by the correctness of Headlam's thesis. However, his hypotheses that in every case the challenge was only a trick and that the speeches we possess contain an unrepresentatively high number of basanos-challenges seem to me unnecessary.
57 Ant., Her. v 47:
58 See Thür 294–5.
59 Dem., Aph. I xxvii I: Cf. Dem. xlviii 40 and Iv 35. On the role of the private arbitrators, see Thür 33 n. 36 and 228–31.
60 Thür 294 gathers the relevant passages: Ant. vi 18, [Ant.], Tetr. i 4.8, Lys. vii 43, Isoc. xvii 54, Dem. xxx 35, Lycurgus i 28–9.
61 See Bonner 46–54 and Calhoun, G.M., ‘Oral and written pleading in Athenian courts’, TAPA i (1919) 177–93Google Scholar; cf. Pringsheim, F., ‘The transition from witnessed to written transactions in Athens’, in Festg. Simonius (1955) 287–97Google Scholar and Gesammelte Abhandlungen (Heidelberg 1961) 2.401–9, and Thür 89–90.
63 See Mirhady, D., ‘Non-technical pisteis in Aristotle and Anaximenes’, AJP cxii (1991) 5–28.Google Scholar
64 Ath. Pol. 53.3: No particular weight should be put on the order. In 53.2 ‘laws’ and ‘testimonies’ are reversed. Cf. Harpocration, s.v. and SIG 3 953.20–3. Thür 132–48 argues in great detail against identifying the challenge as an atechnos pistis on the grounds that since its authenticity must be supported by marturiai, its evidentiary force is reducible to the marturiai. However, while it is correct not to make this identification because the substitution made by the rhetoricians would cause us to label the basanoi and oaths as atechnoi pisteis twice Aristotle supports the authenticity of contracts through marturiai and yet recognizes them as atechnoi pisteis (1376b2–5).
65 Aristotle, Rhet. i 15 1376b31: Anaximenes, Rhet. Alex. 16.1: Cf. Rhet. Alex. 36–18 and 31.
66 See Thür 210 and Todd (n. 4) 27–31. See also Morrow, G.R., Plato's law of slavery in its relation to Greek law (Urbana 1939) 82 n. 48Google Scholar, on Laws 11.937b: ‘Plato uses the word in its precise legal sense … In the strict sense of the word neither the slave-informer nor the slave put to the torture could be called a Cf. [Ant.], Tetr. 1.2.7, 1.3.4 and 1.4.7, Lys., vii 37, Isoc., xxi 4, Dem., xxx 36, and Hyperides, fr. 5 Jensen.
67 See Thür 209–10.
68 Isoc., Trap. xvii 54:
69 Isaeus, Ciron viii 12: Dem. xxx 37 follows Isaeus almost verbatim.
70 Plato, Laws xi 937a–b, allows slaves to testify and to speak in court only at trials for murder and only on the condition that they be made accountable through the dikê pseudomarturiôn. Attic law had no such provisions. Thür 309 calls the comparison of basanos and marturia hollow.
71 Cf. Ant., Stepmother i 8, Chor. vi 25, Lyc., Leocr. i 29. Thür 227–34 points out that, in those disputes that refer explicitly to the dispute-ending quality of the basanos, the references to aphesis and apallagê correspond to the other methods of mutually ending disputes.
72 Isoc., Trap. xvii 54:
73 Arist., Rhet. i 15 1376b30–31: Anax., Rhet.Alex. 16.1: Cf., Lyc. 1. 29.
74 See Plut. Dem. 5.5 and Mirhady, ‘Pisteis’ (n. 63) 6–7.
75 [Dem.], Ev. xlvii 8:
76 [Dem.] lix 122 cf., n. 36 above.
77 For financial support I am indebted to the Social Sciences and Humanities Research Council of Canada and the Killam Memorial Trust. For helpful comments on earlier drafts, thanks are due to P. Harding, P. Kussmaul, E. Harris and, not least, G. Thür, as well as the readers for JHS. After completion of my paper, Professor Michael Gagarin kindly sent me his paper, ‘The torture of slaves in Athenian law’ CP xci (1996) 1–18; Professor Gagarin takes a position quite different from mine.