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MARTY´RIA

MARTY´RIA (μαρτυρία) signifies strictly the deposition of a witness in a court of justice, though the word is applied metaphorically to all kinds of testimony. We shall here explain--1, what persons were competent to be witnesses at Athens; 2, what was the nature of their obligation; 3, in what manner their evidence was given; 4, what was the punishment for giving false evidence.

The capacity to give evidence was regarded more as a privilege of the witness than as a right of justice. Hence it was limited to freemen, males, and adults. The incapacity of women and minors may be inferred from the general policy of the Athenian law: thus a woman or a child could make no contracts beyond the value of a bushel (μέδιμνος) of barley, i. e. for the barest necessaries of life (Isae. Or. 10 [Aristarch.], § 10; Schol. Aristoph. Eccl. 1025; Harpocr., Phot., Suid., s. v. ὅτι παιδὶ καὶ γυναικί). A. woman could, however, take an oath if tendered to her by challenge (πρόκλησις); and this oath had an evidentiary value, being in fact a substitute for evidence. It differed, however, because the consent of the adversary was required before it could be taken. For an example of this kind of oath tendered and refused, see Dem. c. Aphob. iii. p. 852.26; tendered and taken, c. Boeot. de Dot. p. 995.3, de Norm. p. 1011.10. (Cf. DIAETETAE p. 623 a; Thalheim, Rechtsalterth. p. 8; Lipsius, Att. Process, pp. 876, 900.)

Slaves were not allowed to give evidence, unless upon examination by torture (βάσανος): nor were female slaves exempted (Dem. c. Aphob. iii. p. 852.25). There appears to have been one exception to this rule: a slave might be a witness against a freeman in cases of murder (Antiph. de caed. Herod. § 48). The suggestion of Platner (Process und Klagen, p. 215) that μαρτυρεῖν is here equivalent to μηνύειν, “lay an information,” is rejected both by Schömann and by Lipsius (Att. Process, p. 876 n.). The party who wished to obtain the evidence of a slave belonging to his opponent challenged him to give up the slave to be examined (ἐξῄτει τὸν δοῦλον). The challenge was called πρόκλησις. [p. 2.127]The owner, if he gave him up, was said ἐκδοῦναι or παραδοῦναι. but he was not obliged so to do, and the general practice was to refuse to give up slaves, which perhaps arose from humanity, though the opponent always ascribed it to a fear lest the truth should be elicited. The orators affected to consider the evidence of slaves wrung from them by torture more valuable and trustworthy than that of freemen; but it must be observed, they always use this argument when the slave had not been examined. (Demosth. c. Aphob. iii. p. 848.13; c. Onet. i. p. 874.37; Hudtwalcker, Ueber die Diäteten, p. 44 if.)

Citizens who had been disfranchised (ἠτιμωμένοι) could not appear as witnesses (any more than as jurors or plaintiffs) in a court of justice; for they had lost all honourable rights and privileges (Dem. c. Mid. p. 545.95; c. Neaer. p. 1353, § § 26, 27). State debtors were not allowed to bring actions (Isae. Or. 10 [Aristarch.], § 20; Dem. c. Mid. p. 542.87; perhaps also c. Nicostr. p. 1251.14 ff.), but had apparently sometimes a locus standi in their own defence; the plaintiff against Phaenippus is a state-debtor, p. 1049.32 (Thalheim, op. cit. p. 16). But there was no objection to alien freemen (Dem. c. Lacr. p. 927.14, p. 929.20; Aeschin. de F. L. § 155). We learn from Harpocration (s. v. διαμαρτυρία) that in actions against freedmen for neglect of duty to their patrons (ἀποστασίου δίκαι) foreigners were not allowed to put in an affidavit that the action was not maintainable (μὴ εἰσαγώγιμον εἶναι). But this can hardly be considered an exception, for such affidavits gave an undue advantage to the party for whom they were made.

Neither of the parties to a cause was competent to give evidence for himself, though each was compelled to answer the questions put by the other. The law declared τοῖν ἀντιδίκοιν ἐπάναγκες εἶναι ἀποκρίνασθαι ἀλλήλοις τὸ ἐρωτώμενον, μαρτυρεῖν δὲ μή. ([Dem.] c. Steph. ii. p. 1131.10.) That the friends of the party, who pleaded for him (called συνήγοροι), were not incompetent to give evidence, appears from the fragment of Isaeus pro Euphil., and also from Aeschines, who, on his trial for misconduct on the embassy, calls Phocion to assist him both as a witness and an advocate (de F. L. § § 170, 184).

The obligation to attend as a witness, both in civil and criminal proceedings, and to give such evidence as he is able to give, arises out of the duty which every man owes to the state; and there is no reason to believe that any persons (except the parties themselves) were exempted from this obligation. The passages cited in support of the contrary view (Isae. Or. 2 [Menecl.], § 33; [Dem.] c. Timoth. p. 1195.38; Att. Process, p. 880 Lips.) prove nothing more than that the near relations of a party were reluctant to give evidence against him; whereas the fact that they were bound by law to give evidence may be inferred from Demosthenes (c. Aphob. iii. p. 849.15; p. 850.20; p. 855.36). At Athens, however, it was less easy than it is now in England to keep men to their legal obligations: hence the defiant tone of the friends of a powerful defendant (c. Timoth. l.c.).

The party who desired the evidence of a witness summoned him to attend for that purpose. The summons was called πρόσκλησις. (Plat. Legg. xi. p. 936 E; Dem. c. Aphob. iii. p. 850.20; c. Timoth. p. 1190.19; c. Theocrin. p. 1324.8. In the two former passages προκαλεῖσθαι is an unsound correction; cf. Att. Process, p. 884 Lips.) If the witness promised to attend and failed to do so, he was liable to an action called δίκη λιπομαρτυρίου. Whether he promised or not, he was bound to attend; and if his absence caused injury to the party, he was liable to an action (δίκη βλάβης). This is the probable distinction between these forms of action, as to which there has been much doubt. (Meier and Schömann, Att. Proc. p. 672=881 Lips.; Platner, Att. Proc. p. 221; Schömann, Antiq. 1.487 n., E. T.).

The attendance of the witness was first required at the ἀνάκρισις, where he was to make his deposition before the superintending magistrate (ἡγεμὼν δικαστηρίου). The party in whose favour he appeared, generally wrote the deposition at home upon a whitened board or tablet (λελευκωμένον γραμματεῖον), which he brought with him to the magistrate's office, and, when the witness had deposed thereto, put into the box (ἐχῖνος) in which all the documents in the cause were deposited. If the deposition were not prepared beforehand, as must always have been the case when the party was not exactly aware what evidence would be given, or when anything took place before the magistrate which could not be foreseen, as for instance a challenge, or question and answer by the parties; in such a case it was usual to write down the evidence upon a waxen tablet. The difference between these methods was much the same as between writing with a pen on paper, and with a pencil on a slate; the latter could easily be rubbed out and written over again if necessary (Demosth. c. Steph. ii. p. 1132.11). If the witness did not attend, his evidence was nevertheless put into the box; that is, such evidence as the party intended him to give, or thought he might give, at the trial. For all testimonial evidence was required to be in writing, in order that there might be no mistake about the terms, and the witness might leave no subterfuge for himself when convicted of falsehood. (Demosth. c. Steph. i. p. 1115.44; ii. p. 1130.6.) The ἀνάκρισις might last several days, and, so long as it lasted, fresh evidence might be brought, but none could be brought after the last day, when the box was sealed by the magistrate, and kept so by him till the day of trial. (Demosth. c. Aphob. i. p. 836.1; c. Boeot. de Nom. p. 999.17; c. Everg. et Mnes. p. 1143.16; c. Conon. p. 1265.27.)

The form of a deposition was simple. The following example is from Demosthenes (c. Lacr. p. 927.14):--“Archenomides son of Archedamas of Anagyrus testifies, that articles of agreement were deposited with him by Androcles of Sphettus, Nausicrates of Carystus, Artemon and Apollodorus both of Phaselus, and that the agreement is still in his hands.” Here we must observe that whenever a document was put in evidence at the trial, as an agreement, a will, the evidence of a slave, a challenge, or an answer given by either party at the ἀνάκρισις, it was certified by a witness, whose deposition [p. 2.128]was at the same time produced and read. (Demosth. pro Phorm. pp. 946, 949. 957; c. Phaenipp. p. 1046; c. Steph. p. 1120.)

The witness, whether he had attended before the magistrate or not, was obliged to be present at the trial, in order to confirm his testimony. The only exception was, when he was ill or out of the country, in which case a commission might be sent to examine him. [ECMARTYRIA] All evidence was produced by the party during his own speech, the κλεψύδρα being stopped for that purpose. (Lys. c. Pancl. § § 4, 8, 11, 14, 15; Isae. Or. 3 [Pyrrh.], § § 12, 76; Dem. c. Eubul. p. 1305.21.) The witness was called by an officer of the court, and mounted on the raised platform (βῆμα) of the speaker, while his deposition was read over to him by the clerk; he then signified his assent, either by express words, or bowing his head in silence. (Lys. de caed. Eratosth. § 29; Aeschin. de F. L. § 156; Dem. c. Mid. p. 560.139; c. Phorm. p. 913.19; c. Steph. i. p. 1109.25; c. Eubul. p. 1305.22.) In one passage an ἄτιμος, whose mouth is shut, is directed to stand up in silence in order to excite compassion (Dem. c. Mid. p. 545.95). In the editions that we have of the orators we see sometimes Μαρτυρία written (when evidence is produced) and sometimes Μάρτυρες. The student must not be deceived by this, and suppose that sometimes the deposition only was read, sometimes the witnesses themselves were present. The old editors merely followed the language of the orators, who said “call the witnesses,” or “mount up witnesses,” or “the clerk shall read you the evidence,” or something to the same effect, varying the expression according to their fancy. (See Lys. pro Mantith. § 8; Isae. Or. 3 [Pyrrh.], § § 76, 80; Dem. c. Callipp. p. 1238.7; c. Neaer. p. 1352.23).

If the witness was hostile, he was required by a solemn summons (κλητεύειν) either to depose to the statement read over to him, or to take an oath that he knew nothing about it (μαρτυρεῖν ἐξόμνυσθαι). One or the other he was compelled to do, or, if he refused, he had to pay a fine of a thousand drachmas to the state, which sentence was immediately proclaimed by the officer of the court, who was commanded ἐκκλητεύειν αὐτόν, i. e. to give him notice that he was in contempt and had incurred the fine. The distinction between κλητεύειν, of the party summoning the witness, and ἐκκλητεύειν, of the herald or crier, has been wrongly denied by some authorities, and is not noticed in L. and S. ed. 7; but it is established by Aeschin. c. Timarch. § 46, de F. L. § 68, compared with Lycurg. c. Leocr. § 20, Dem. c. Zenoth. p. 890.30, c. Neaer. p. 1354.28. For the compulsion of an unwilling witness (like the English subpoena), see also Isae. Or. 2 [Astyph.], § 18; Dem. de F. L. p. 396.176=194, p. 403.193=220; c. Aphob. iii. p. 850.20; c. Theocrin. p. 1324.7 (Lipsius, Att. Process, p. 882 n.). The ἐξωμοσία was not a safe way of getting off giving evidence; it was liable to the penalties of perjury (Dem. de F. L. § 176; c. Steph. i. p. 1119.58).

An oath was usually taken by the witness at the ἀνάκρισις, where he was sworn by the opposite party at an altar (πρὸς τὸν βωμὸν ἐξωρκίσθη). If he had not attended at the ἀνάκρισις, he might be sworn afterwards in court; as was always the case when a witness took the oath of denial (ἐξώμοσε). In the passage just cited from Lycurgus, the expression λαβόντας τὰ ἱερὰ means nothing more than touching the altar or its appurtenances, and has no reference to victims. (Valckenaer, Opusc. Philol. vol. i. pp. 37-39.) Whether the witness was always bound to take an oath, is a doubtful point. Schömann formally retracts (Antiq. 1.485 n., E. T.) his earlier opinion, that evidence was usually unsworn (cf. Att. Process, pp. 885-6 Lipsius). It seems certain, however, that the other side could put a witness on his oath (ἐξορκοῦν, Dem. c. Steph. i. p. 1119.58; ἐξορκίζειν, c. Conon. p. 1265.26, with Sandys on both passages). See also c. Eubul. p. 1305.22; Aeschin. de F. L. § 156.

The oath of the witness (the ordinary νόμιμος ὅρκος) must not be confounded with the oath taken by one of the parties, or by some friend or other person out of court, with a view to decide the cause or some particular point in dispute. This was taken by the consent of the adversary, upon a challenge (πρόκλησις, [Dem.] c. Timoth. p. 1203.65) given and accepted; it was an oath of a more solemn kind, sworn by (or upon the heads of) the children of the party swearing (κατὰ τῶν παίδων, Dem. c. Aphob. iii. p. 852.26; c. Conon. p. 1269.40), or by perfect or full-grown victims (καθ᾽ ἱερῶν τελείων, [Dem.] c. Neaer. p. 1365.60), and often with curses upon himself or his family (κατ᾽ ἐξωλείας, c. Eubul. l.c.), and sometimes was accompanied with peculiar rites, such as passing through fire (διὰ τοῦ πυρός, c. Conon. l.c. and Sandys ad loc.). The mother or other female relation of the party (who could not be a witness) was at liberty to take this oath. (Dem. c. Aphob. l.c.; c. Boeot. de Dot. p. 1011.10: it is tendered to the father, c. Callipp. p. 1240.15; cf. Wachsmuth, Hellen. Alterth. ii. 1, p. 335; Hudtwalcker, Diät. pp. 52-57.)

With respect to hearsay evidence, see AKOEN MARTYREIN; and for the affidavit called διαμαρτυρία, ANAKRISIS p. 122 a.

The question whether freemen were put to the torture is reserved for fuller discussion under TORMENTUM We may here briefly say that (1) the torture of citizens was forbidden by a decree in the archonship of Scamandrius, of unknown date; that (2) the “omnipotent” people claimed a power of suspending this law by psephisma on extraordinary occasions [ECCLESIA p. 702 b]; that (3) this suspension of the law, though demanded in times of excitement, seems never to have been really acted upon. The leading case which proves all these points is that of the mutilation of the Hermae (Andoc. de Myst. § 43 f., and Grote's remarks thereon, ch. 58, 5.175; see also the speech περὶ συντάξεως, p. 170.14, and Plut. Phoc. 35).

It is not too much to say, with Thalheim (Rechtsalterth. p. 29, n. 2) and Lipsius (Att. Process, p. 896, n. 372), that we have no example of the torture of an Athenian citizen. About aliens they were less scrupulous; but (as a general rule) it is certain that freemen could not be tortured in courts of justice, and even an emancipated slave, Demosthenes says, it would be an act of impiety (οὐδ᾽ ὅσιον) to give up for such a purpose (Dem. c. Aphob. iii. [p. 2.129]p. 856.39; c. Timoth. p. 1200.55). The recorded exceptions are mostly in the cases of foreign spies, especially when the Athenians were alarmed for the safety of their dockyards (Dem. de Cor. p. 271.133; Lys. c. Agorat. § 59).

The above remarks apply equally to causes which came before the dicasteries in the ordinary way, and those which were decided by the public arbitrators. The διαιτητὴς discharged the duties of the magistrate at the ἀνάκρισις as well as those of the δικασταὶ at the trial. He heard the witnesses and received the depositions from day to day as long as he sat, and kept the ἐχῖνος open until the last day (κυρίαν ἡμέραν). (Cf. Dem. c. Mid. p. 541.84; c. Timoth. p. 1199.50; Att. Process, p. 886 Lips.; DIAETETAE

If the witness in a cause gave false evidence, the injured party was at liberty to bring an action against him (δίκη ψευδομαρτυριῶν) to recover compensation. The proceeding was sometimes called ἐπίσκηψις, and the plaintiff was said ἐπισκήπτεσθαι τῇ μαρτυρίᾳ or τῷ μάρτυρι (Isae. Or. 3 [Pyrrh.], § 11; Or. 5 [Dicaeog.], § 17; Dem. c. Aphob. iii. p. 846.7, p. 856.41; Harpocrat. s. v. ἐπεσκήψατο). This cause was probably tried before the same presiding magistrate as the one in which the evidence was given (Att. Process, p. 59 Lips.). The form of the plaintiff's bill, and of the defendant's plea in denial, will be found in Demosthenes (c. Steph. i. p. 1115.46). From the same passage we also learn that the action for false testimony was a τιμητὸς ἀγών, in which the plaintiff laid his own damages in the bill; and from Demosthenes (c. Aphob. p. 849.16; p. 859.50), it appears that the dicasts had power not only to give damages to the plaintiff, but also to inflict the penalty of ἀτιμία by a προστίμησις (Isae. Or. 5 [Dicaeog.], § 19; Dem. c. Aphob. iii. p. 849.16; [Aristot.] Rhet. ad Alex. p. 1431 b, 30). A witness who had been a third time convicted of giving false testimony was ipso jure disfranchised (Andoc. de Myst. § 74; cf. Att. Process, p. 485 ff. Lips.; Thalheim, Rechtsalterth. p. 119 n.). The main question to be tried in the cause against the witness was, whether his evidence was true or false; but another question commonly raised was, whether his evidence was material to the decision of the previous cause (Dem. c. Everg. et Mnes. p. 1139.1, p. 1161.74; c. Aphob. pp. 853-856; c. Steph. i. p. 1117.51; Platner, Process u. Klagen, vol. i. p. 400, &c.).

When a witness, by giving false evidence against a man upon a criminal trial, had procured his conviction, and the convict was sentenced to such a punishment (for instance, death or banishment) as rendered it impossible for him to bring an action, any other person was allowed to institute a public prosecution against the witness, either by a γραφή, or perhaps by an εἰσαγγελία or προβολή. (Andoc. de Myst. § 7; Platner, op. cit. p. 411; Att. Process, p. 488 Lips.)

After the conviction of the witness, an action might be maintained against the party who suborned him to give false evidence, called δίκη κακοτεχνιῶν (Dem. c. Timoth. p. 1201.56; c. Everg. et Mnes. l.c.). And it is not improbable that a similar action might be brought against a person who had procured false evidence to be given of a defendant having been summoned, after the conviction of the witness in a γραφὴ φευδοκλητείας (Meier, Att. Process, p. 977 Lips.).

It appears that in certain cases a man who had lost a cause was enabled to obtain a reversal of the judgment (δίκη ἀνάδικος), by convicting a certain number of the adverse witnesses of d false testimony. Thus in inheritance causes s the law enacted ἐὰν ἁλῷ τις τῶν ψευδομαρτυριῶν, πάλιν ἐξ ἀρχῆς εἶναι περὶ αὐτῶν τὰς λήξεις (Isae. Or. 11 [Hagn.], § 46; Or. 5 [Dicaeog.], § § 8, 14; see, however, some doubts of Lipsius, Att. Process, p. 982 n.). This was the more necessary, on account of the facility afforded to the parties to stop the progress of these causes by affidavits, and also because no money could compensate an Athenian for the loss of an inheritance. The same remedy was given by the o law to those who had been convicted in a δίκη ψευδομαρτυριῶν or in a γραφὴ ξενίας. In the last case the convicted person, who proceeded against the witness, was compelled to remain in prison until the determination of his suit (Dem. c. Timocr. p. 741.131). We are informed that these are the only cases in which a judgment was allowed to be reversed in this way; the Scholiast on Plato (Legg. xi. p. 937 C) adds a third, cases of inheritance (κλήρων); but see Att. Process, p. 612 n. 350, p. 979 n. 609, Lips. From the words of Isaeus quoted above, ἐὰν ἁλῷ τις τῶν ψευδομαρτυριῶν, it has been inferred that the conviction of a single witness sufficed for the granting of a new trial; this is surely making too much of the indefinite τις, and the Scholiast on Plato says expressly that it was necessary to convict more than half the number of witnesses. The Athenians, as we know, were very chary of granting an ἀναδικία (Att. Process, p. 982 n.; APPELLATIO).

We conclude by noticing a few expressions. Μαρτυρεῖν τινι is to testify in favour of a man, καταμαρτυρεῖν τινος to testify against. Μαρτύρεσθαι to call to witness (a word used poetically); διαμαρτύρεσθαι and sometimes ἐπιμαρτύρεσθαι τοὺς παρόντας, to call upon those who are present to take notice of what passes, with a view to give evidence. (Dem. c. Everg. et Mnes. p. 1150.38.) Ψευδομαρτυρεῖν and ἐπιορκεῖν are never used indifferently, which affords some proof that testimony was not necessarily on oath. The μάρτυς (witness in the cause) is to be distinguished from the κλητὴρ or κλήτωρ, who merely gave evidence of the summons to appear.

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