J.F. Dobson, The Greek Orators

Treatment of subjects

His personal dignity is as remarkable in his manner as in the formalities of style. As we turn back to him from Demosthenes or Aeschines, who lowered the tone of forensic pleading to suit contemporary taste, we are surprised to find that he hardly ever condescends to ridicule, never to scurrilous invective. His judicial adversaries are not necessarily persons of discreditable parentage, immoral character, and infamous occupation. They may perhaps be liars, for one's own statement of the case must be assumed to contain the whole truth, and consequently the other side must depend on falsehood; but even here the orator is prepared to admit, with almost un-Attic generosity, that his adversaries have been misled and are not acting up to their true character. Take the opening of Tetralogy 11. 3:

‘The behaviour of my adversary shows, better than any theory could, that necessity constrains men to speak and act contrary to their better nature.

Up to the present he has never spoken shamelessly or acted desperately; but now his misfortunes have constrained him to use language which, knowing him, I should never have expected him to utter.’

Antiphon's method of constructing his speeches is simple: a conventional preface, of the kind which every rhetorician kept in stock,¹ is followed by an introduction describing and criticizing the circumstances under which the action has been brought (προκατασκευή). The facts, or a selection of facts of the case, are then narrated (διήγησις), and are followed by arguments and proofs (πίστεις). The evidence of witnesses may be interspersed through the narrative, taken point by point; or, if the narrative is short and simple, all the testimony may be reserved for the end. A peroration (ἐπίλογος), reviewing the situation and containing a final appeal to the court, normally ends the speech.

The speeches in the Tetralogies, which are only blank forms composed for practice or as specimens for study, contain only preface, argument, and peroration; there being no actual facts to deal with, there is no introduction or narrative.

It is a peculiar weakness of the extant speeches that they rely so much more on arguments from general probability (εἰκότα) than on real pleading on the basis of evidence.²

Thus the defendant in the Herodes mentions quite casually that he never left the ship on the night when the murder was committed on shore, but he produces no evidence for the alibi and treats it as of quite secondary importance (Herodes, § 26). He insists more on the point that the slave who gave evidence against him was probably induced to bear false witness by the prosecutors. Another piece of evidence against him is the assertion that he wrote a letter to Lycinus, stating that he had committed the murder. ‘Why,’ he asks, ‘should I have written a letter, when my messenger would know all the facts?’

It may be, in this instance, that the defendant's case was a very weak one, and that he was obliged to rely on generalities: but the First Tetralogy affords an interesting parallel. There the defendant, in his second speech, the last speech of the trial, affirms, what he has apparently forgotten to mention before, that he never left his house on the night of the murder.

The most serious artistic defect in the extant speeches is the lack of that realism which the Greeks called ἦθος, characterization. The language of the defendants in the Herodes and the Choreutes is very similar, though the former is a young Lesbian and the latter a middle-aged Athenian. Moreover, the young Lesbian apologizes for his inexperience and lack of capacity for speaking, and does so in polished periods elaborated with all the devices of rhetorical art—antithesis of words and ideas, careful balance of the length of clauses, and judicious employment of assonance.

A perusal of Antiphon's introduction to the speech de Caede Herodis will help, better than any detailed criticism, to an understanding of his methods of composition. We must note the disproportionate length of this introduction, to which the pleader evidently attaches more importance than to the disproof of the charge itself.³ A study of it leads us to believe that the guilt or innocence of the party would have little to do with the verdict if he had once succeeded in impressing the jury favourably. He apologizes in artistic periods for his incapacity in public speaking, and enlarges on the commonplace that truth has often been stifled through lacking the power of expression.

He makes no appeal for impartiality, since he can trust the jury—another brazen commonplace (§§ 1-7).

The procedure of his adversaries is as shameless as it is unjust (§§ 8-9); it is even sacrilegious (§§ 10-12), so that they merit indignation, while the defendant, who respects the laws of God and man as he loves his country, deserves every indulgence (§§ 13-15). The prosecutors' brutality can be explained by their distrust in the justice of their case and the uprightness of the jury (§§ 16-17). Finally, they have had ample time to work up their case, while the victim of their intrigues is called upon at a moment's notice to answer the most serious charges (§§ 18-19).

1. I could wish, Gentlemen, that I possessed a capacity for speaking and an experience of the world on a scale corresponding to the misfortune and sufferings that have befallen me; as it is, my experience in the latter is as much beyond my deserts as my deficiency in the former falls short of my requirements.

2. When I had to suffer in my own person under an undeserved charge, I had no experience to help me on; now, when my salvation lies in a plain statement of the facts as they occurred, I am thwarted by my incapacity in speaking.

3. In many instances men with no capacity in speaking have been disbelieved because they only told the truth, and have owed their ruin to the fact that they could not demonstrate the truth; many, on the other hand, who possess the capacity for speaking, have been believed on account of their lies, and owed their salvation to the fact that they lied well. So one who has not the necessary experience of procedure in the courts must inevitably be at the mercy of the speeches of the prosecution; he cannot rest secure upon a true statement of the facts of the case.

4. Now, most parties in such causes as this make a request for a fair hearing—implying a mistrust of themselves and a conviction that you are not impartial. I shall make no such request, for it is only reasonable that honest men should grant a hearing to the defendant, even though he has not asked for it, just as the prosecutor has been granted a hearing without asking.

5. But my prayer is, firstly, that if my tongue leads me into error, you will be merciful, and consider that my error is due to inexperience rather than guilt; and secondly, that if I should in any point express myself well, you will attribute such expression not to any cleverness of mine but to the inherent power of truth; for justice demands that a man guilty in his actions should not win salvation by his speech, and, equally, that one righteous in his actions should not for his speech be brought to ruin; for an error in speech is the tongue's fault—an error in action is a fault of the heart.

6. A man who realizes that his personal safety is endangered is bound to err sometimes; he has to think not only of the defence he is making, but of its possible results; for the issue of all matters yet undecided depends on chance rather than on forethought.

7. Such considerations cannot fail to cause anxiety to one whose life is in danger; indeed, I observe that people who have a thorough experience of the courts fail to do justice to their powers when in danger themselves, but are far more successful in cases which involve no personal danger. Thus, Gentlemen, my request is both lawful and righteous; it is as just for you to grant as for me to prefer it; and I now proceed to answer in detail the charges which have been brought against me.

8. First, I would draw attention to the illegality of the methods by which I have been forced into this trial, not that I wish to avoid judgment by this democratic court— for even if you had taken no oath, and were bound by no law, I should be ready to leave in your hands the decision about my life, confident as I am that I have done no wrong in this matter, and that your verdict will be a just one— but in order that my enemies' violent and illegal action against me in this case may help you to realize their conduct towards me on other occasions.

9. My first point is this: Contrary to all precedent at Athens, though I am on trial for murder, I was indicted for “criminal violence.” Now my enemies themselves have testified that I neither belong to the class of “violent criminals,” nor am subject to the law which covers such cases. It applies to such offences as stealing and highway robbery, and they have shown that no such charge can attach to me.

Thus their conduct in the matter of my summary arrest has made it in the highest degree legal and just for you to acquit me.

10. They say, indeed, that the taking of life is in itself an aggravated form of “criminal violence.” I admit that it is a most serious kind, and so is sacrilege or treason; but you have laws which deal with each of these charges specifically.

And, to begin with, they have brought me to trial in the Agora, the very place which a defendant in a charge of murder is ordinarily warned to avoid; secondly, they have proposed a penalty of their own choosing, whereas the law ordains that the man who has taken another's life shall lose his own in return.

This they have done, not for my benefit, but for their own convenience, and herein they have failed in that respect for the dead which the law prescribes.

11. Again, as I imagine you all know, all the courts concerned with murder trials sit in the open air, with this particular object, that the jurors may not have to enter the same building with those who have blood on their hands, and that the prosecutor in a trial for murder may not find himself under the same roof with him who committed the act.

But you, Sir, have acted contrary to all precedent in transgressing this law; and not only this: It was incumbent on you to take the most solemn and binding oath, to invoke destruction upon yourself and your family and your house if you failed in its conditions, namely, that you would not bring any charges against me except such as referred to the murder and my complicity in it.

Had this obligation been observed, however great crimes I had committed I could not be found guilty except in view of the one fact of blood-guiltiness, and on the other hand, however many good deeds I had to my credit, these good deeds could not save me.

12. All this regular procedure you have violated; you have invented laws for your own use; you who prosecute me have taken no oath; your witnesses who bear witness against me have taken none, though they ought first to take the same oath as yourself; they should lay their hands upon the sacrifice while they are bearing witness against me.

Further, you ask the court to dispense with the oath; to give credence to your witnesses and bring in a verdict of Guilty, though you yourself have made them disinclined to credit you by transgressing the established laws, and by imagining that your own illegal conduct should in their consideration have precedence over law itself.

13. You say, however, that if I had been set at liberty I should not have remained here, but should have gone away and disappeared—as if you had compelled me against my will to enter the country. I answer that, on your supposition that I should not have minded saying farewell to Athens, it was open to me either not to appear in obedience to the summons, and so incur judgment by default, or to go away after replying to the opening speech of the prosecution; for this privilege is open to all. But you, by legislating in your own interest, are trying to withhold in my case alone this privilege which belongs to all of Greek race.

14. Yet I think we must all agree that the laws which govern such procedure are the best laws in the world, and most in accordance with divine sanction. They have a double claim to respect; they are the most ancient laws in this land, and they are unchangeable as the offences with which they deal; and this is the strongest indication that a law is well framed; for time and experience teach mankind to recognize what is not well done.

So you do not require to learn from the speeches of the prosecution whether the laws were well framed or not, as he implies; but you do require to learn by the aid of the laws whether the speeches of the prosecution are urging a righteous and lawful action, or the reverse—as I assert.

15. The laws, then, which relate to the charge of murder, are excellently framed, inasmuch as no one has ever ventured to disturb them; you alone have ventured to legislate anew, and for the worse. You would set aside justice as you have transgressed law in your attempt to bring me to ruin. But your illegal procedure is in itself the strongest evidence in my favour; for you knew well enough that nobody who had taken that solemn oath would have borne witness against me.

16. Again, you did not rely on the facts sufficiently to allow the question of facts to be settled indisputably by a single trial; you reserved for yourself the right to dispute the judgment, and reopen the case, implying a distrust in the verdict of the present court. The result is that even if I am acquitted I am no better off, since it is open to you to say that I was acquitted on the charge of criminal violence but not on the charge of murder; whereas, if you secure my condemnation you will demand my death on the ground that I have been found guilty of murder.

What can surpass the cruelty of such a device by which you, if you can once convince the jury, have attained your object; while I, if I escape your clutches once, find the same danger awaiting me again?

17. Again, my imprisonment was a monstrous illegality. I consented to produce three sureties as required by law, but they contrived that I should not be allowed to do so. There is no other instance on record of the imprisonment of a non-Athenian who consented to produce sureties.

Yet the officers who have custody of criminals are subject to this same law, so that this is another privilege common to all men which was withheld from me alone.

18. Of course, it suited my accusers, firstly, that I should be as unprepared as possible, through being unable to attend to my own business in person, secondly, that I should suffer personal ill-usage, and in consequence of this personal illusage find my own friends more ready to bear false witness in support of my accusers than true witness in my support. And so they inflicted a life-long disgrace on me and my family.

19. Thus I have been brought to trial handicapped in many ways in relation to your laws and to justice; but even with these disadvantages I shall try to demonstrate my innocence.

But it is a hard task to refute at a moment's notice a number of deliberate falsehoods long-prepared; for it is impossible to be forearmed against unexpected attacks.

After this long preamble, the speaker at last discusses the accusation (§§ 19 sqq.), and to some extent deals satisfactorily with the evidence—entirely circumstantial—which has been brought against him. It has already been noticed that, though he casually leaves it to be inferred that he could prove an alibi, he lays no stress on the assertion, and is far more concerned with showing that it is ‘improbable’ that he should be a murderer. The final and, apparently, the most important argument is drawn from the absence of divine signs which might have pointed to the speaker's guilt. He makes no attempt, like the defendant in the First Tetralogy, to suggest other explanations of the crime; many crimes, he says, have before now baffled investigation, and he is only concerned with denying the charge against himself.