Теория и практика пыток в судах древних Афин

The institution of torture is inherently controversial; its morality is extremely dubious and its expediency is, at least, questionable. A particular form of torture that seems completely indefensible from a modern perspective is the torture of

ΣΧΟΛΗ Vol. 12. 2 (2018)

innocent slaves for evidentiary purposes in Athenian law. This has been characterised as ‘wanton and purposeless barbarity’,¹ yet has been explained as a way classical Athenians citizens reinforced their dominant political status and ‘con-firm[ed] their own social hierarchy and cohesion’.² The barbarity and putative irrationality of evidentiary basanos , in addition to the lack of evidence proving the actuality of this practice, make its existence, at least in the period of the Attic orators, doubtful.

The paper accepts the scholarly consensus³ that challenges to evidentiary torture were primarily ploys that were expected (and perhaps even designed) to be rejected.⁴ Yet, some issues remain debatable, such as the actuality of the practice of evidentiary torture in the age of the Attic orators, the reason for its persistence as a rhetorical tactic, and its (supposed) classification in Aristotle’s day among the artless or supplementary proofs in the rhetorical handbooks. The aim of this paper is to address these questions and to offer an outline of (challenges to) bas-anos in theory and practice in the age of the Attic orators.

Definition of basanos

The word basanos was originally used to signify the touchstone in metallurgy, the means for testing the genuineness of gold. Metaphorically, the word meant the forceful interrogation of persons, the means for testing and confirming the truth of a fact or a statement. LSJ identifies two particularly relevant meanings to our enquiry: ‘examine closely, cross-question’ and ‘question by applying torture, be put to the torture, rack’. The word could have the meaning of ‘put to the test, prove; investigate scientifically’. Additionally, the term could be used as a synonym for ‘proof’. Thus, when Xenophon says that ‘τοῦ δὲ πιστοὶ εἶναι ἐν τῇ φθορᾷ τῶν δεσποτῶν µάλιστα βάσανον ἐδίδοσαν’⁵ or Hyperides maintains that ‘ὅς γε τοῦ τρόπου δὶς ἤδη ἐν ὑµῖν βάσανον δέδωκεν’⁶ they both use the word as ‘proof’.

In Athenian courts, basanos mainly referred to the forceful interrogation of persons or to confessions and statements under torture. Basanos can be classified under the following types: evidentiary (which is the main focus of this enquiry), judicial and penal or punitive torture.7 Depending on the type, persons of differ- ent status could be subject to torture – even free men in, for example, investigations for treason. Basanos as ‘evidentiary torture’ was aiming at finding the truth in advance of a trial. It refers to the torture of an innocent slave following a formal challenge (proklesis), whose statement could not otherwise have been introduced in court and whose testimony was putatively illuminating of a more or less fundamental disputed issue. This type may be distinguished from penal torture whose aim was to punish a perpetrator after his condemnation. Evidentiary torture can also be distinguished from judicial torture, a one-sided procedure, whereby suspects or material witnesses are tortured by the victim or a basanistes, usually in criminal investigations, in order to confess.

The actuality of evidentiary basanos

The actual practice of evidentiary basanos in the age of the orators is problematic. In particular, there is putative inconsistency between theory and practice. In ancient rhetorical theory basanos is treated as a real possibility and is classified among the atechnoi (artless) or epithetoi (supplementary) pisteis – but do the rhetorical handbooks refer specifically to evidentiary basanos following a formal challenge? If yes, such treatment would square with the belief (suggested in the forensic speeches) in the reliability of torture as a way of extracting truthful evi-dence.⁸ As a result, both its reference in the handbooks and the putative belief in its reliability as expressed in the rhetoric of litigants would advocate the actual existence of basanos during this period – though, again, was it the actuality of evidentiary basanos which gave rise to this belief? In practice, it is unclear whether the Athenians ever witnessed instances of forensic evidentiary torture. Sources are silent on this matter. Direct evidence proving that statements of tortured innocent slaves entered the courtroom is entirely absent. Probably then, either evidentiary basanos was non-existent in the age of the orators or it was a means for automatically settling a private case ( dike ) out of court.

In addition to basanos per se, the challenge (proklesis) to evidentiary torture in the forensic speeches, unlike in the rhetorical manuals, is also mentioned as a form of proof (pistis).9 In principle, a litigant in a private suit (dike), in order to support his narrative and prove a disputed point, could issue a challenge to the other party offering his own (or a third party’s) slaves or requesting his opponent’s for interrogation. This challenge had to take place during the arbitration stage and, if rejected, it was possibly deposited in a sealed box, the echinos, to be introduced as evidence in the trial.10 In non-arbitrational cases, it is unclear whether there was a time-limit for the tendering of such a challenge or whether these were allowed even during the hearing.11 The aforementioned is circumstantial evidence supposedly indicating the actuality of evidentiary torture in Athenian courts. However, closer examination of the sources might suggest otherwise.

The shape of evidentiary basanos

In the court speeches, the recurrent reference to challenges to torture supports the view that recourse to evidentiary basanos was a real possibility.¹² This has been the main question for scholars who try to explain the absence of concrete evidence in the forensic speeches. Back in 1893, Headlam suggested that an actual basanos would act as a kind of ordeal and automatically settle the case out of court in advance of the trial.¹³ The outcome of a basanos was not introduced in court as a piece of evidence, this being the main reason for the lack of relevant references in the forensic speeches. This view, which had received little support in the past, was revived by Mirhady in recent years,¹⁴ somewhat advanced and reshaped in order to concentrate more on the challenge itself and its procedural implications.

Since evidentiary torture refers to private, arbitrational disputes, where the matter was left to the discretion and the willingness of litigants, I would consider more probable that the parties were allowed the flexibility to decide the conse- quence of basanos to their case.15 In the absence of conclusive evidence suggesting that the outcome was automatic or predetermined by law, litigants (the challenger or the counter-challenger) remained free either to propose a termination of the proceedings or, in the light of this new evidence, to leave the case open for the arbitrator and the court to decide.16 Certainly, this approach could overcome the implausibility of the automatic settlement in cases where the challenge referred to immaterial or peripheral questions and to facts which were not (or should not be) decisive of the legal case.

Headlam’s thesis is discounted by other scholars. Thür, in the most seminal study on basanos,17 maintains that litigants viewed this institution as primarily of rhetorical value and, in order to make the most of it, designed the challenge in a way to be rejected by the opponent. In the absence of coercion by judicial magistrates who could force a hesitant litigant to accept the challenge,18 the main purpose of a proklesis eis basanon is the ‘contrived rejection’ which would offer the challenger the rhetorical advantage over the rejecter to be exploited in court. Thür suggests that even if an evidentiary torture was carried out, this would not settle the case automatically.19 Gagarin, generally being in agreement with this thesis, discusses other possible functions of this institution in the context of the rhetorically-oriented Athenian system of justice. As he says, “if basanos was designed as a procedure to elicit true evidence from slaves by torture, it was a failure, for it rarely (if ever) achieved this goal…by the period of the orators the institution of basanos had become a legal fiction, whose function and purpose were not (and may never have been) the eliciting of truth from slaves”.20 For him, bas-anos in the time of the orators was a legal fiction, a forensic procedure for introducing evidence from slaves in court.21

I am in general agreement with the position that the silence of the speakers in cases tried in dicastic courts suggests that evidentiary basanos of innocent slaves was rarely, if ever, applied in practice in the age of the orators. The main manifestation of this institution was in the form of challenges. However, basanos , even at a late date, was seen as a reliable, fair and democratic (!) way of extracting evidence (Lycurgus 1.29). This needs to be explained. This last description as ‘democratic’ possibly suggests that in the third quarter of the fourth century BC, the preeminent type of torture employed in the Athenian administration of justice was the judicial (rather than the evidentiary), mainly used during investigations for ‘political crimes’ such as treason or subversion of the constitution. In cases of such offences, this procedure was employed without distinction against slaves and free men, although after the enactment of the decree of Scamandrius (whose date is uncertain but possibly 508/7 B.C.) Athenian citizens were not subject to this cruel institution for evidentiary purposes. Yet, in cases of turmoil or of suspension of the democratic constitution (and, presumably, of the decree of Sca-mandrius), Athenians were possible candidates too.²² Therefore the root of the belief in the reliability of basanos should be sought for in other than evidentiary forms of torture (or in informal forceful interrogations taking place within the household).

Among the reasons put forward for the unwillingness of parties to accept prokleseis, is that the procedure was too uncertain, making litigants reluctant to risk their case in such a ‘high-stakes’ game,23 that the challengers most of the times offered a deceitful challenge focusing on peripheral or irrelevant issues aiming at what Thür calls a ‘contrived rejection’24 or that the opponent built his case on different issues25 and did not want to play the game on the challenger’s pitch. The fact that there was no procedure against a slave who lied during the interrogation26 must be taken into account; a losing party could not have reopened the case as he could for example by a dike pseudomarturion. More pragmatic reasons for rejecting an opponent’s challenge could include the possibility of ‘damage’ to a valuable slave who had developed a degree of expertise in his occupation as in Isocrates 17, to a putative personal intimacy that the owner had developed with the slave as in Lysias 3, to the expectation that the slave might run away in order to escape from the torture27 or to a promise not to be tortured being made to the slave if he / she cooperated with the master (Lysias 1). Finally, could there have been any humanitarian reasons for viewing basanos as inappropriate? Possibly yes but these could not be admitted in court: if they were, they would certainly have been used against the rejecter of a challenge as prioritising his personal interest, affection or sympathy for the slave over truth and justice but also as undermining citizen status by indirectly arguing for the extension of the applicability of the decree of Scamandrius to slaves. To be sure, basanos could have been a very effective way of inflicting material and / or rhetorical harm to the opponent.

Basanos in the rhetorical handbooks

The rhetorical handbooks of Aristotle and Anaximenes have been said to be classifying torture among the artless or supplementary proofs. This, if true, has to be explained since it could offer support to the view that basanos was a real possibility in Athenian courts. However, it is debatable whether both thinkers refer to the type of evidentiary basanos and why they classify torture as a proof which is beyond the manipulative powers of the orator.

Aristotle in the Rhetoric (1.2) does not discuss challenges ( prokleseis ) to torture. He refers to torture ( basanos ) per se and defines it (1.15) as testimony (µαρτυρία) under compulsion.²⁸ It is placed in the category of artless proofs (Aristotle, Rhetoric 1.2) because it pre-existed (προϋπῆρχεν), therefore it belongs to all these things that are not invented / furnished by the orator (ὅσα µὴ δι᾽ ἡµῶν πεπόρισται). Hence it seems that artless proofs for Aristotle (laws, witnesses, contracts, torture, oaths) have both a temporal and a practical aspect (Aristotle refers to the things already placed in the ἐχῖνος as neither invented by the orator nor being within his art).²⁹ For Aristotle, basanos has many types (Rhet. 1.15.26: καθ᾽ ὅλου τοῦ γένους τῶν βασάνων), yet these are not defined. So when Aristotle in the Rhetoric treats basanos as a pistis to be discussed in court, he could refer to any of the aforementioned types of torture (judicial, punitive or evidentiary) but not to challenges.

Gagarin30 refers to Aristotle’s treatment of torture as a proof to be discussed in court as evidence against the thesis that an accepted challenge would automatically settle the case. However, the rhetorical advice provided by Aristotle in the Rhetoric, need not refer solely to the evidentiary torture of innocent slaves following a proklesis eis basanon in private disputes. Indeed, the absence of evidence proving the actual introduction of such testimonies in Athenian courtrooms makes this suggestion even more plausible.31 The only evidence from basanoi re- ported from Athenian courts falls under the other categories of basanos (see the next section below). Moreover, Aristotle’s Rhetoric is neither a handbook which exclusively refers to Athenian orators, institutions and audiences nor a manual useful only for the period that it was written. Laws and procedures could change yet the arguments provided for and against the value of a pistis should be generally applicable.

Anaximenes of Lampsacus in the Rhetorica ad Alexandrum (1428a 7.2), refers to basanos as a supplementary (έπίθετος) proof to what people say and do and defines it (1432a 16.2) as a ‘confession of complicity by someone involved / knowing under compulsion’ (‘Βάσανος δέ εστι µεν οµολογία παρά συνειδότος άκοντος δέ’). As becomes evident subsequently, when Anaximenes refers to ‘cases where slaves make false statements against their masters’ (1432a 16.2), his use of basanos does not refer exclusively to judicial torture and confessions of complicity but could cover instances of evidentiary torture of innocent slaves. He also refers to basanos as the ‘most reliable evidence on which both private individuals and cities rely upon in matters of importance’ ( Rhetorica ad Alexandrum 1432a 16.1) thus denoting different types of basanos . Anaximenes, in contrast to Aristotle, concentrating on practical advice for winning a case, discusses the introduction of slave testimonies in the courtroom as a real possibility and / or (hypothetically) offers a justification for a rejected challenge.³² Again, however, there is no reason why this handbook should be seen as exclusively referring to Athens or to the Athenian legal system.

Aristotle and Anaximenes refer to any kind of testimony or confession under compulsion, that is to the document / copy of the statement placed in the echi-nos33 and ultimately to the pistis (‘artless’ or ‘supplementary’34) which lies beyond the manipulative powers of the orator.35 In discussing basanos, they mainly refer to the actual written testimony rather than to the challenges frequently found in the orators. As far as Aristotle is concerned, if he intended to discuss the challenges, he would have probably followed the same methodology as in his discussion of oaths in which he refers in a much nuanced way to all the different possibilities of tendering, accepting or rejecting a challenge.36 Also, arguments resembling the ones found in the orators supporting or criticising the reason for the rejection (for example that the challenge was not fair, the slave was free etc.) are absent from the Rhetoric.37 As far as Anaximenes is concerned, by referring to basanos as the ‘most reliable evidence on which both private individuals and cities rely upon in matters of importance’ (Rhetorica ad Alexandrum 1432a 16.1), denotes the statement under torture rather than the challenge.38 Since they neither exclusively refer to the Athenian legal system of their period nor solely refer to the evidentiary torture of innocent slaves, their rhetorical treatises do not provide concrete evidence for the actual practice of evidentiary torture of innocent slaves in the Athenian courts of the fourth century.

Basanos evidence entering the courtroom

The rhetoricians in their handbooks provide advice for supporting or questioning the credibility of basanos. Yet, if the slaves’ statements did not enter the courtroom due to the fact that evidentiary basanos following a challenge was rarely, if ever, carried out, then what was the practical usefulness of such advice? In that respect, the Rhetoric and the Rhetorica ad Alexandrum, could have a – however limited – applicability in the courts of classical Athens (or to the arbitration stage) in the sense that (formally or informally) deliberation was taking place regarding basanos testimonies in cases not involving a formal challenge (proklesis).

In the Hyperides fragments, in the ‘ Defence of Chaerephilus on the salt fish ’, we find the most direct evidence regarding a basanos testimony been discussed in court. There, following an apophasis or an eisangelia , the Areopagus carried out the investigation by practising basanos on slaves. Their statements were presented to the people in the assembly and were used as the basis of a further action against the accused. Such evidence from torture (not triggered by a challenge but by an independent investigation of the Areopagus) could be discussed by litigants in court:

In other instances, slave testimonies were discussed in the courtroom, albeit in an informal way, being incorporated in litigants’ speeches. In Antiphon 5.29-52, reference is made to the testimony of a slave (later executed by the speaker’s opponents) which provided evidence for the trial at hand. The speaker attempts to discredit it by pointing to the injustice of the procedure that had been followed and to general considerations about the fallibility of basanos . In Antiphon 1.20, reference is made to the judicial or punitive torture of the accomplice concubine who administered the alleged fatal poison / love potion to the speaker’s father. Throughout Demosthenes 48, the torture and confession of a slave are discussed as providing circumstantial evidence for the case at hand. Finally, as suggested in Antiphon 5.49, confessions of slaves under torture for a crime they had committed should be followed by a trial, this being another way in which basanos testimonies entered the courtroom.

Apart from slaves, in limited circumstances, confessions of free men could be educed under torture and introduced in court.39 In most cases, free men who were tortured were involved in matters of treason or crimes against the state. This could also be the case with the free Mytilenean (?) tortured in Antiphon 5 who, although (probably) not being seen as an accomplice or suspect to the mur- der of Herodes, he was perhaps tortured because this murder was received as directed against the Athenian state.

A controversial case is mentioned in Lysias 3, a case of trauma ek pronoias , due to the debatable status of Theodotus. Carey ( pace Bushala 1968) argues that the torture of free aliens was not allowed in cases of trauma from the contention in Lysias 4 that if the slave girl was free, she could not have been subject to torture. He maintains that: “Either Athenian law allowed the torture of free aliens in cases of phonos but not in cases of trauma , or the ‘torturable class’ was restricted to slaves in both cases as in other types of action. The other procedural similarities between trials for phonos and trials for trauma strongly suggest the latter’.⁴⁰ However, this should not be regarded as conclusive. In the first place, Lysias 3 can be distinguished from Lysias 4 (in an admittedly speculative way) if the former was a dike traumatos whereas the latter a graphe. ⁴¹ So, even if the procedural similarities between a dike phonou and a dike traumatos support Carey’s conclusion, we cannot be sure whether these rules would be identical in a graphe traumatos . Also, unlike the woman in Lysias 4, Theodotus could have been seen as a suspect or an accomplice in the trauma ek pronoias against Simon. Therefore it might be suggested that for crimes against the state the law allowed for the torture of free aliens, but in cases of phonos or even of trauma ek pronoias , it only allowed for the forceful interrogation of suspects or accomplices. The fact that the speaker of Lysias 3 uses the word µηνύω when referring to the testimony of Theodotus (µηνῦσαι δὲ ἱκανὸν ἦν βασανιζόµενον), possibly denotes that the statement educed by Theodotus under basanos could have formed the basis of an indictment against the speaker and, thus, could have entered the courtroom.

Conclusion

Torture in the Athenian legal system was received as a reliable form of gathering truthful evidence, yet the actuality of evidentiary basanos remains doubtful. The general consensus in the reliability of this institution might have its roots in the distant past or in the exercise of other types of torture such as penal and judicial. The absence of testimonies elicited from the torture of innocent slaves following a formal challenge is striking, especially when compared to the presence of testimonies educed from other types. After all, the discussion of basanos in the rhetorical handbooks refers mainly to these other types, whose presence in the courtrooms was certainly more frequent. Consequently, it is plausible to suggest that the actual existence of the form of torture most indefensible, that is the eviden- tiary torture of innocent slaves, is not supported by either the forensic speeches or the rhetorical handbooks. By the age of Aristotle, this way of eliciting evidence had probably become obsolete.