In order to sustain the dicasts’ attention, the litigant had to deliver a speech that was also easy to follow, as dicasts would not tolerate long speeches (Dem. 58.25).32 According to Dionyisus of Halicarnassus, what was appropriate and essential in forensic oratory was a quality that Lysias excelled in, namely a manner of expression that reduced ideas to their essentials and expressed them tersely (Lysias 6). A litigant could not afford to engage in wordy or overly intricate arguments that might obscure his ideas since the dicasts had, as we have seen, only a limited time to process the arguments and were given no opportunity afterwards to reflect and deliberate on them. At the same time, however, a litigant could not underestimate the legal sophistication that dicasts would have acquired from listening to multiple cases, and who in turn would appreciate and welcome a skilful display of rhetoric. A balance thus had to be struck and what a litigant needed to present was an account of events that seemed plausible on first hearing, followed by arguments that were equally plausible as they built naturally on the narrative account that had gone before. The one fed into the other. Again Lysias succeeded at this because he was able to create for each speaker a specific character that seemed readily believable (Dion. Hal. Lysias 8).33 That characterization was then sustained right through the narrative into the proofs, where the speaker presented arguments that proved equally convincing because they were based on the evidence introduced to support the case and the character created for the case.34 As Dionysius notes (Lysias 15), Lysias was skilled at discovering arguments inherent in any situation; he omits no elements that constitute an argument, whether found in the persons, the situations or actions.
In early forensic oratory, emphasis was placed on narrating the facts and providing supporting evidence of witnesses. There was little or no attempt to create character or attention paid to arguments that could enhance one’s own evidence and challenge the evidence of an opponent.35 By the time we get to Antiphon and certainly with Lysias, direct evidence (such as laws, witnesses, torture, oaths) was less important but still one of many elements that went into constructing a convincing argument. Laws and such came to be treated as persuasive evidence that could be rhetorically manipulated to benefit the speaker’s argument. This became readily apparent in the case of witnesses, when the Athenians shifted in the 370s from oral testimony, presented by the witnesses themselves, to written depositions, composed by the litigants and read out in court like any other form of written evidence (e. g., laws or contracts). The witnesses’ role was reduced to confirming the deposition or denying under oath any knowledge of the event. This allowed the litigant
Considerable scope in manipulating the actual text of the deposition.36 It is perhaps for this reason that Anaximenes treats direct evidence as supplementary to the proofs drawn from the actions, words and persons; that is, arguments based on probabilities, examples (paradeigmata), inferences (tekmeria), maxims and signs (slmeia) (Rhet. Alex. 7.1 1428a17). Anaximenes’ distinction between rhetorical proofs drawn from the actions, words and person and supplementary proofs drawn from direct evidence is similar to the distinction drawn by Aristotle (Rhet. 1.2.2-3) between artistic and non-artistic proofs; the former is based on the character of the speaker, the emotional frame of mind of the dicasts (pathos) and what the speech can logically demonstrate to be true or apparently true.37 Non-artistic proofs are based on direct evidence, which is not invented by the speaker but simply employed by him. Whatever formal distinctions rhetoricians drew between different types of proof, they were all treated the same by litigants, as ‘evidentiary material’ on which to build arguments that made for a convincing case.38
The speaker of Antiphon 6.30-31 lays out the new approach in forensic oratory. According to him, if someone had given a verbal account of the facts, without providing witnesses, one might say that his words lacked witnesses;39 if he had provided witnesses, without providing inferences ( tekmeeria) to support the witnesses, one might make the same criticism. But in his case he has presented plausible arguments (logous eikotas),40 with witnesses to support the arguments, facts to support the witnesses, and inferences ( tekmeria) based on the facts. The approach is that laid out in the handbooks that we find summarized in the Phaedrus: narrative, witnesses, tekmeeria and eikota. In the new realities of forensic oratory, witnesses or any other type of direct evidence was insufficient to win a case; there needed to be arguments to strengthen that evidence, and this privileging of argument over direct evidence in forensic oratory remains throughout the fourth century. We find it expressed, for instance, in Demosthenes 55.12. The defendant is being charged with property damages by his neighbour. Between their two properties runs a path of some sort that serves as a public road in the dry season and a bed for runoff in the rainy season. The plaintiff claims that a wall on the defendant’s property line, which was built by the defendant’s father to prevent runoff from the road on to his land, has caused flooding on his own property. He alleges that the wall obstructs a watercourse actually running through the defendant’s property. As public property such watercourses could not be blocked off. The defendant argues that the road serves as the actual watercourse for runoff and that the piece of land in question is in fact private property. In his narrative, he has given his description of the land and the circumstances leading his father to build the wall many years earlier. At Section 12 he states, ‘to prove the truth of what I say, I will provide witnesses who know the facts, and, men of Athens, inferences (tekmeria) much more compelling than the witnesses’. The witnesses testify to the presence of trees, vines and tombs on the particular piece of land. The logical inference is that their presence signifies private property and not public land. The argument may be specious but is plausible.
As we have suggested, by the time we get to Lysias, argument, based on inferences, probabilities and character became a central feature of forensic oratory, and all other elements of the speech were built toward that. We can illustrate our point by looking more closely at Lysias, who excelled above all in forensic oratory. One of Lysias’ most brilliant speeches was his defence of Euphiletus (1), who was charged with killing
Eratosthenes, who was caught in act of seduction { moicheia) with Euphiletus’ wife. Under Athenian homicide law, Euphiletus could plead justification, as certain killings, like self-defence or the killing of a seducer caught having illicit sex with a woman under a man’s charge, carried no penalty. Two problems, however, faced Euphiletus. First, Eratosthenes’ relatives have charged him with entrapment, which was illegal, and secondly, social expectation in Euphiletus’ day {early fourth century) called for the aggrieved husband to accept financial compensation for the offence. By this period, the killing of a seducer seemed to be an archaic solution that was rarely acted on. The laws relating to seduction were themselves ambiguous; they did not dictate killing but only granted impunity to the one who happened to kill a seducer caught in the act. Euphiletus deals with the second issue first. In the prooimion {1-5) he suggests to the Areopagus, the council that is judging his case, that seduction is a universally hated crime, both in democracies and oligarchies, and no penalty is too small for a crime so great. The language that he adopts is that of a victim: he has suffered, he is indignant, and the crime is the worst form of hybris.41 This prepares the jury to accept the killing of a seducer, though an extreme act, as acceptable in Euphiletus’ case. The first issue, though addressed in the prooimion, is treated more fully in the narrative {6-28), where Euphiletus comes across as a trusting and somewhat naive husband, who was incapable of planning a homicide or of entrapping Eratosthenes.42 But he is also represented by Lysias as a man who on occasion was given to outbursts of anger, a characterization that helps suggest to the dicasts that Euphiletus acted impulsively when he caught Eratosthenes with his wife.43 The first two parts of the speech, the prooimion and narrative, support the arguments that follow.
The proofs begin with the legal arguments {29-36). The narrative concludes {2526) with Euphiletus describing how he caught the young seducer in the bedroom with his wife. Eratosthenes admits his guilt, we are told, begs for his life and offers money. At Section 26 Euphiletus shifts into direct speech which not only dramatizes ‘the character of a man whose natural impulsiveness readily expresses itself’ but also sets the stage for the legal arguments that immediately follow.44 Euphiletus speaks in a contrived antithetical manner that has two purposes: first, it downplays his role in killing by stressing that the law itself, now personified, demanded satisfaction, and second, it emphasizes Eratosthenes’ criminal behaviour by stressing his preference for pleasure over lawful and decent behaviour: ‘It is not I who will kill you but the law of the city, which by violating you have held in less regard than your own pleasures, and have chosen to commit crime such as this against my wife and my children rather than obey the laws and behave decently.’
The first piece of evidence that Euphiletus has read out in court to support his legal arguments is the law of seduction, which allowed a man to deal with a seducer caught in the act in whatever way he saw fit {28).45 The law itself did not, it seems, actually order the killing of a seducer, but left that as an option among other possibilities {ransom for instance). In order to obscure the weaknesses of this direct evidence, Euphiletus again argues in a highly antithetical manner that emphasizes his legal and moral justification in killing {29).46 Note again how the emphasis is shifted from Euphiletus to the personified law and not only to the law itself but now also to the jurors, who are entrusted with affirming the moral authority of the law. The jurors have been implicated in his argument:
He did not dispute it, gentlemen, but admitted his guilt, and begged and implored not to be killed, and was ready to pay money. But I did not did agree with his assessment. I thought the law of the city had more authority, and exacted the penalty which you yourselves thought was most just and so imposed on those who practice such things.
The jurors are again reminded that Eratosthenes confessed his guilt and offered money, which however was rightly refused, on the grounds that the legal and moral authority of law was not something open to negotiation.47 The implication here is that not only is the defendant justified in killing but also he is legally bound to, and the jurors have no option but to affirm that act. Finally, Euphiletus calls up his first witnesses who confirm that Eratosthenes was indeed caught in the act in his wife’s bedroom and confessed his guilt (30).48
But Lysias is not content to leave the matter at that. He introduces two further laws to bolster the argument that Euphiletus was both legally required and morally justified to kill Eratosthenes. The first, part of Draco’s homicide law, contains the provisions dealing with justifiable homicide, in particular the provision that exculpates a man who has killed another found ‘on top of’ a woman under his charge (30). Like the law on seduction, the homicide law does not expressly order the killing or insist on the death penalty, as Euphiletus would have the jury believe (‘you hear, gentlemen, how the Court of the Areopagus... has expressly decreed that a man is not to be convicted of homicide, if he captures a seducer with his wife and exacts this penalty from him’), but simply grants impunity. To suggest that it did more than this Euphiletus resorts to a hypothetical inversion based on the terms of the law. The provision in question specified precisely the women who were covered under the homicide law: mother, sister, daughter, wife and concubine. Euphiletus argues that the lawgiver was so convinced of the justice of the death penalty in the case of married women that he imposed the same penalty in the case of concubines, who are of lesser importance: ‘For clearly if the lawgiver had had a more severe penalty than this, he would have imposed it; but in fact as he was unable to find a stronger sanction than death in their case, he decided the penalty should be the same as in the case of concubines’ (31). This hypothetical inversion suggests that the only penalty reserved for a seducer is death.
Finally Euphiletus cites the law on violence (bia), which was perhaps the Athenian equivalent of rape. It protected adults and children, both male and female, slave or free. Under the terms of that law the penalty for violence/rape was damages in the form of financial compensation to the victim or the victim’s family. Again, Euphiletus’ argument is framed in antithetical terms that exclude the possibility that rape could have been dealt with by different means (such as a public suit for hybris) that involved other penalties, or that seduction could have been compensated financially (32):
Thus, gentlemen, the lawgiver thought those who use violence deserve a lesser penalty than those who use persuasion; the former he condemned to death; on the latter he imposed double damages, thinking that those who get their way by force are hated by those violated, while those who use persuasion corrupt women’s minds in such a way that make other men’s wives more loyal to themselves than to their own husbands.49
The conclusion that Euphiletus draws from the legal arguments that he has just presented is that not only have the laws acquitted him of any wrongdoing but also have actually ordered him to exact the death penalty (34). It is now up to the jurors, he states, to determine whether the laws have authority or no value at all. Again the jurors have been implicated in his argument.
The second argument (37-42) tackles head on the question of entrapment. Here Lysias depends heavily on the character that he has established for Euphiletus in the narrative, a trusting, naive man incapable of staging a homicide but given at times to bursts of anger. In the narrative Euphiletus describes how on the night of the killing as he was returning from the country, he met up with a close friend, Sostratus. He invited him home for dinner, after which he sent him on his way. Later, he was wakened in the middle of the night by his slave girl who informed him that Eratosthenes was in the house. He slipped out to find witnesses, discovering as he made his search that some friends were home and others were not. The account has a ring of truth to it (he mentions a name, Harmodius, who was not at home when he went to his house), and it introduces a series of probability arguments that are framed as rhetorical questions (40-42):
If I had been plotting against Eratosthenes that night, would it have been better for me to dine elsewhere or bring my dinner quest home? ... Then again do you think I would have let my dinner guest go and be left alone and unsupported or urged him to stay to help me punish the seducer? Then again, gentlemen, don’t you think I would have sent word to my associates during the day and bid them to gather at house of a friend living closest to me rather than running around in the middle of the night as soon as I discovered it, not knowing whom I would find at home or out? ... Yet if I had known this ahead of time (who was home and who was not) don’t you think I would have prepared my servants and sent word to my friends so I could enter in complete safety... and exact the penalty with the greatest number of witnesses?
But in fact he claims to have known nothing of what was going to happen that night, and to prove his point he calls his final set of witnesses, who have been held back until this point in the argument for maximum effectiveness.50 Among them would be men like Harmodius who would have testified that they were not home on the night in question. The witnesses make the arguments from probability all the more convincing.
5 Epilogos
Time constraints have forced me like an Athenian litigant to focus my argument on a single paradeigma, the example of Lysias, to illustrate something of the rhetorical beauty and vitality of forensic oratory. The very nature of a trial, which allowed a litigant only a limited time to speak in his defence, forced him to concentrate all his rhetorical efforts on building two or three convincing arguments. The plausibility of these arguments depended on the rhetorical force that he generated by his manipulation of the evidence that he had assembled and from the character that he created for himself or his opponent in the narrative. By using the example of Lysias, I have not, as Anaximenes suggests (Rhet. Alex. 1429a29), tried to prop up what is an otherwise unconvincing case, nor do I think forensic oratory was more about plausibility than the truth. It was about justice and equity, and in an effort to obtain these, the truth sometimes needed rhetorical assistance. Aristotle may have regarded deliberative oratory as more noble and more worthy of the statesman than forensic oratory. But a statesman in Athens of any political worth needed also to be a good forensic orator, for he could easily find himself in court defending his policies and political actions before a body of dicasts, who had also heard him speak in the Assembly. The Athenians saw little distinction between the two arenas. Aristotle’s criticism seems to have been directed at the fact that forensic oratory allowed greater scope for the practitioner to speak outside the matter and employ rhetorical trickery. As I have shown, such emotional appeals and arguments were absolutely essential as they allowed the litigant not only to grab and focus the attention of the dicasts but also to fire their imagination and define for them juristically the actual issue at hand. Was this particular action, let us say, hybris or not? Moreover, the stakes were often high, life and death, satisfaction for a crime against one’s person or family, and a litigant needed to use whatever rhetorical means at his disposal in order to persuade his fellow citizens of the justice of his case. In similar circumstances we would do no less.51
World History
