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 ἢ 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.
[
C.R.K] [
W.W]
