SACRED OLIVES AND OTHER CASES
6
SACRED OLIVES AND
OTHER CASES
CASE XVIII: LYSIAS 7 – DEFENCE ON THE
OLIVE STUMP
The speaker is a landowner who has been charged with an offence in relation to the sacred olives. From the time of Solon the olive had enjoyed special protection in Attica and even in the fourth century there were limits on a landowner’s right to dispose of olive trees on his property. But there were still more stringent restrictions on the sacred olive trees. These were trees (called moriai) scattered about Attica, often on private land, which were believed to have been propagated from the sacred olive tree that Athene had planted on the Akropolis. The oil from the olives was used for the prizes for victors in the Panathenaic games. At this date, as our speech makes clear, the task of collecting the oil was farmed out. By the time of the composition of the Ath. Const. in the 320s (§60.2) the state charged a prorated levy in oil on the properties which contained one or more of these olives. The status of the olives meant not only that they could not be removed, even where they were awkwardly positioned, but also (as we learn from this speech) that there was a ban on working the land too close to them. The present case concerns a sekos, which literally means ‘enclosure’ and probably in this context denotes an enclosed stump of one of these olives. That these too should be protected makes sense, since olives have remarkable regenerative powers. Since the olives had a religious dimension, their protection was overseen by the Areiopagos, which also heard trials for offences against them. Aristotle Ath. Const. 60.2 tells us that at one point the penalty for destruction was death but adds that by the 320s trials had fallen into abeyance. The present case does not allow us to determine whether trials were more common earlier in the century or our speaker is the target of a rare prosecution. The speech seems however to envisage not death but exile as the penalty on conviction (§§2, 41; cf. also §§3, 25) and it seems that at some point by the end of the fifth century a change had been introduced which is not noted by Aristotle. The speech can be dated some time after the archonship of Souniades in 397/6 (§11) but how long is uncertain. There is a commentary on this speech in C. Carey, Lysias: Selected Speeches (Cambridge 1989) and a more substantial commentary with detailed introduction in S.C. Todd, A Commentary on Lysias, Speeches 1–11 (Oxford 2007).
[4] This property belonged to Peisandros and, when his property was confiscated, Apollodoros of Megara received it as a reward from the people. For most of the time he farmed it himself, but a little before the Thirty Antikles bought it from him and leased it out. I bought it from Antikles in peacetime.[5] In my opinion, Council, my task is to demonstrate that when I acquired the property, there was no olive tree or stump on it. For I think that I could not rightly be punished for the earlier period, even if there had been many sacred olives on it. For if they had not been removed by my agency, it is not right for me to stand trial for other people’s crimes as though I were guilty. [6] For you all know that among the general hardship for which the war has been responsible, the more distant properties were ravaged by the Spartans and those nearby were plundered by our friends. So how could it be right for me now to be punished for the disasters which befell the city at that time? [7] In particular this property was confiscated in the war and remained unsold for more than three years. So it is not surprising if they dug up the sacred olives at a time when we could not even protect our own property. You know, Council, all of you who are especially concerned with such matters, that there were many estates thick with privately owned and sacred olives at that period, most of which have now been dug up and the land is bare. And though the same men have owned them both in peace and in war you do not see fit to punish them, when other people dug them up. [8] And yet if you exonerate men who have been farming the land throughout, surely people who bought it in peacetime should not be punished by you.
Witnesses
[11] Since this period has expired, I have been farming it myself. My accuser claims that the stump was dug up by me in the archonship Souniades, but the people who worked the land earlier and leased it for many years have testified that there was no stump on the property. How on earth could a man more convincingly demonstrate that his accuser is lying? For when something was not there earlier, it is impossible that a man working the land later could have removed it.
[12] Now in the past, Council, I used to grow angry whenever people said I was clever and sharp and would never act casually and without calculation, because I thought that what they were saying was more than my due. But now I could wish that all of you took this view of me, so that he would reckon that if I tried any such act I calculated the likely profit for removal and the penalty for the offence, and what I could accomplish, if I went undetected, and what I would suffer from you, if I were discovered. [13] For everyone in the world commits such crimes not from willfulness but for profit; and it is right for you to look at it in this way and prosecutors should base their accusation on these grounds, demonstrating what the likely benefit was for the perpetrators. [14] My opponent however could not prove that I was driven by poverty to attempt an act such as this nor that the property was suffering from the presence of the stump or it got in the way of vines or that it was close to a house or that I was unaware of the risk I ran in your court if I did anything of the sort. [15] I on the contrary could show that there were many serious disadvantages involved. To start with, I dug up the stump in daylight, as though it wasn’t imperative to have no one notice me but for the whole of Athens to know. And if the business was solely a matter of disgrace, perhaps one might have ignored the passers-by. In fact however what I risked was not disgrace but the most severe penalty. [16] Surely I would have been the most miserable man alive, if I was going to have my servants no longer as my slaves but as my masters for the rest of my life, if they were privy to an act such as this? So even if they had committed the worst of offences against me, I would not have been able to punish them. For I would have been well aware that it was in their power both to have their revenge on me and to gain their personal freedom by laying information. [17] Furthermore if it entered my head to ignore my servants, how could I have had the nerve? When so many people had leased the property and all of them were aware that I had removed the stump for the sake of a short-term profit, and when, with no time limit for prosecution, it was in the interest of everyone alike who had leased the property for the stump to be preserved, so that they could indicate who they had passed it to, if anyone accused them. As it is, they have patently acquitted me and made themselves liable to the charge, if they are lying. [18] Now if I had managed to contrive this as well, how could I have settled with all the passers-by or my neighbours, who don’t just know all the things about each other which anyone can see but even find out about things which we conceal from anyone’s knowledge? Now though some of these are friends, others are in fact in dispute with me about my property. [19] And my opponent should have offered them as witnesses and not just offer such reckless accusations. For he claims that I supervised, while my servants cut up the stock and the ox driver loaded up the wood and went off with it.
[20] But surely, Nikomachos, you should at that time have both summoned your available witnesses and exposed the matter. And you would have left me with no defence, while for yourself, if I was your enemy, you would have avenged yourself on me in this way, and if you are acting for the city’s benefit, you would thus have proven the facts and would not have looked like a sykophant, [21] while if you were looking for profit, then you would have got the biggest return then. For with the matter exposed I would have had no other means of salvation than to settle with you. Now having done none of these things you expect to ruin me with your arguments and allege that because of my influence and my money nobody is willing to testify for you. [22] And yet if when you say that you saw me removing the sacred olive you had brought the nine Archons or instead some members of the Areiopagos, you would have needed no other witnesses. For in that case the people who were going to decide the case would have known that you were speaking the truth.
[23] I am placed in an utterly terrible position, in that if he had provided witnesses, he would have expected you to believe in them, but when he has none, he thinks that this too should be my loss. I am not surprised at him. For I imagine that he will not be short of arguments of this sort as he is of witnesses; but I don’t think it right that you should share his attitude. [24] For you know that on the plain there are many sacred olives and burned stumps in my other properties, which it was much safer to remove and dig up and encroach on, if I wanted to, since the offence was less likely to be detected with there being many. [25] But as it is I treat them with great care, as indeed I treat my citizen rights and my property in general, in the belief that both of these are at stake. I shall offer you yourselves as witnesses, who deal with the olives every month, and send out assessors every year. And none of these ever yet fined me for working the ground adjacent to the sacred olives. [26] Now surely I do not take so seriously small penalties and attach no importance to risks to my life. And I devote such obvious care to the large number of sacred olives against which it was easier to commit an offence but now stand trial for removing a single one, which I could not have dug up undetected.
[27] And was this better for me, Council, to break the laws under democracy or at the time of the Thirty? I say this not because I had the power then or that I’ve been subjected to such smears now, but because there was more opportunity for anyone so minded to do wrong then than now. In my case it will be clear that during that period I committed neither this nor any other offence. [28] How then, if I was not my own worst enemy in the whole world, when you take such care, could I have attempted to remove the sacred olive from this property? In which there is not a single tree but there was a single olive stump, so they say, and the property is ringed on all sides by roads and neighbours live all about me and the property was unfenced and visible on every side? Who would have been so reckless as to attempt such an act in a situation like this? [29] It seems to me monstrous that you, who have been given the task for all time to take care of the sacred olives, have never yet punished me for encroaching or brought me to trial for removing any, whereas this man who does not in fact farm nearby and has not been elected as a supervisor and is too young to know about these matters charges me with removing a sacred olive.
[30] I beg you not to view claims such as his as more convincing than the facts, and not to listen to my enemies talking about matters on which you have direct knowledge yourselves, taking account both of what has been said and of my general conduct as a citizen. [31] For I have carried out all the duties assigned to me more zealously than I was compelled to by the city, serving as trierarch and paying war levies and acting as chorus producer and performing the other liturgies as lavishly as any other citizen. [32] Yet if I had carried out these tasks adequately and without enthusiasm, I would not have been put on trial at risk of exile and loss of the rest of my property, but I would own more, without committing an offence or putting my life at risk, while in doing what he accuses me of doing I stood to make no profit but was placing myself in danger. [33] Now you would all agree that it is fairer to use major indicators in major cases and to place more faith in the testimony of the whole city than allegations made by this man alone.
[34] Furthermore, Council, consider the rest of the evidence. I went to him with witnesses, and I said that I still had all the servants whom I possessed when I took over the property and was willing to hand over for torture any of them he chose, in the belief that this offered the strongest test of his claims and my actions. [35] But my opponent refused, saying that there was no trust to be placed in the servants. It seems to me incredible that if men under torture make accusations against themselves, in certain knowledge that they will die, when it comes to their masters, to whom they are naturally most hostile, they would rather endure being tortured than to speak out against them and be quit of their current misfortunes. [36] Indeed, Council, I think it is clear to everyone that, if Nikomachos had demanded the servants and I had refused to hand them over, it would have seemed that I had a guilty conscience. So since when I offered to hand them over he was unwilling to accept them, it is right to take the same view of the matter, especially since the risk is not the same for both. [37] For if they had said what he wanted about me, I would not even have had the basis for a defence, while if they did not agree with my opponent, he was not liable to any penalty. This was how eager I was, in the belief that it was in my interests that you should know the truth from torture and witnesses and indicative evidence. [38] You should ask yourselves, Council, which party you should trust more, those for whom many witnesses have given evidence or the man for whom no one has had the nerve, and whether it is more likely that this man is telling lies at no risk to himself or that I committed an act of this sort with such great danger attached, and whether you think that he is acting in the interests of the city or his accusation is that of a sykophant? [39] I think you all know that Nikomachos is bringing this action at the instigation of my enemies, not in the hope of proving my guilt but in the expectation that he will get money from me. For since trials such as this are especially invidious and intractable, everyone is especially anxious to avoid them. [40] I however refused, Council; but once he accused me, I made myself available to you to deal with as you see fit and I did not come to terms with a single one of my enemies for the sake of this trial. These people get more pleasure from maligning me than from praising themselves; and none of them has ever yet personally attempted to do me any harm openly but they send people like this against me, people you could not fairly trust. [41] For I would be the most unhappy man alive, if I am exiled unjustly, childless and alone, my household desolate, and my mother destitute, deprived on the most shameful of charges of my native land, for whose sake I have fought many battles on sea and on land, behaving with propriety both in democracy and in oligarchy.
[42] However, I don’t think that I need to say this here, Council. I have proven to you that there was no enclosed stump on the property and I have offered witnesses and evidence. You should remember this as you reach your decision on the case and you should ask my opponent why it was that, when it was possible for him to catch me red-handed, he has subjected me to a trial of this magnitude such a long time afterward, [43] and why without offering a single witness he seeks to be believed on the basis of speeches, when he could have proven my guilt with the facts themselves, and why, when I offered all the servants whom he claims were present, he refused to accept them.
This speech offers in passing a fascinating insight into land sales and leases in the closing decade of the fifth century. How unusual it was for property to change hands so rapidly is uncertain. It may be significant that much of this period was a time of war and it may be that food prices made short-term investment in agricultural land profitable. Some of the lessees were non-citizens, an interesting fact in itself; since only citizens could own land, the only way for a metic to farm was by leasing property.
The estate in question has two interesting names attached to it; the oligarch Peisandros, the original owner, who was instrumental in setting up the shortlived oligarch regime of the Four Hundred in 411 and Apollodoros of Megara, who received it as a reward from the Assembly (§4) after it was confiscated on the fall of the oligarchy. The act which won him the reward was the assassination of Phrynichos, another of the oligarchs whose death helped to accelerate the return of democracy. We can believe (§4) that Apollodoros sold up just before the establishment of the Thirty, since they would have no affection for a hero of the earlier counter-revolution. Our speaker claims that he bought it in the archonship of Pythodoros, 404/3. This was the year of the Thirty and though the Archon year was still useful for dating, the Athenians did not use this name for official chronology (Xenophon Hellenica 2.3.1). It does however raise a question about the precise date of purchase. The speaker seems to imply (§4) that he acquired the property at the end of the regime. But his claim is vague enough (‘peacetime’ there could be the end of the Peloponnesian War in 404 as easily as the end of the civil war in 403) to make one suspect that he held it throughout the oligarchy; and since the Thirty readily plundered the property of opponents, this in turn suggests that he was a supporter of the oligarchy. It may be therefore that (as Todd suspects) the prosecution is politically motivated.
It is unclear how much substance there is in the charge. The speaker seems to give a comprehensive refutation in presenting the land as continuously occupied but not by him for the whole of the earlier part of his ownership and in providingthe various lessees as witnesses to the absence of an olive or a stump. The reader is surprised that so much of the speech is taken up with arguments from probability. This may simply reflect the status of argument from probability and the speaker’s desire to deliver a crushing refutation. But one is surprised that the narrative is not spun out at greater length and it is conceivable (but unprovable) that he is concealing something. The brief interval of five days (§9) between acquisition and first lease would be ample to remove an inconvenient stump. Whether he is innocent or guilty, there is no reason to doubt his depiction of the prosecution as malicious. Nikomachos’ age does lend support to the speaker’s suggestion that he has ulterior motives and his dating of the offence (§11), and with it his claim to have seen the event, seems to be adequately refuted by the witnesses.
CASE XIX: LYSIAS 10 – AGAINST THEOMNESTOS
This speech is our only surviving text which deals in detail with the law of slander (kakegoria). Under British law, which defines defamation, including slander, as utterances likely to lower the esteem in which the victim is held by right-thinking people, slander is a fairly nebulous concept and accordingly subject to misuse. Athenian law however is narrower; it is not interested in defamation in general but in certain types of utterance, contexts and categories of victim. We have evidence for a number of laws dealing with kakegoria; these laws forbade the utterance of abuse in certain places, the slandering of the dead and (according to a cryptic passage in Dem. 57.30) people working in the marketplace; they also designated a number of specific allegations as forbidden (aporrheta) and therefore subject to action by the individual maligned. We know from this speech that accusations of homicide, throwing away one’s shield, and beating one’s father or mother were covered. How many other serious allegations were forbidden it is difficult to say. What does seem clear however from the present speech is that the law did not exempt statements before public bodies. The case arises out of an allegation made in a previous trial; there Theomnestos, on trial for addressing the Assembly despite having allegedly thrown away his shield in battle (an act which barred him from the exercise of citizen rights), had stated that the speaker killed his father (§l). The date can be fixed from §4, where the speaker states that the trial took place in the twentieth year (i.e. nineteen years) after the restoration of the democracy (403 BC) following the brief and brutal regime of the oligarchy of the Thirty. The speech was therefore delivered in 384/3. A detailed commentary on this speech can be found in M. Edwards and S. Usher, Greek Orators I. Antiphon and Lysias (Warminster 1985) and in S.C. Todd (p. 246 earlier); 625–640, 660–695.
[1] I don’t expect to have any shortage of witnesses, judges; for I see that many of you who are now sitting in judgment were present at the time, when Lysitheos impeached Theomnestos for addressing the Assembly when he had no right, having thrown away his arms. In the course of that trial he said that I had killed my father. [2] Personally, if he had accused me of killing his own father, I would have forgiven him the statement (I considered him wretched and worthless). Nor would I have prosecuted him if I had been called any of the other forbidden terms; for I think it demeaning and over-litigious to sue for slander. [3] But as it stands I think it shameful not to take revenge on the man who said this about my father, who has proved his worth both to you and to the city; and I want to find out from you whether he is to be punished or if he alone of the Athenians has the exclusive right to do and say what he chooses in defiance of the laws.
[4] I am thirty-two years of age, judges, and since you returned from exile it is nineteen years. It can be seen that I was thirteen years old when my father was executed by the Thirty. At that age I neither knew what oligarchy was, nor was able to protect him from the wrong that was done him. [5] And indeed I could not sensibly have plotted against him for his property, for my older brother Pantaleon took over his estate and on becoming guardian defrauded us of our inheritance. So there are many reasons why I should wish he was alive.
Well now, I have to speak of these matters, though there is no need to speak at length, for nearly all of you know I am telling the truth. Even so I shall provide witnesses to the facts.
Witnesses
[6] Perhaps, judges, he will offer no defence on this subject, but will say to you too what he had the nerve to say before the arbitrator, that it is not one of the forbidden terms if someone says that a man has killed his father; the law does not forbid this, but does not permit someone to call a man‘murderer’. [7] But it is my view, judges, that you should take issue not with expressions but with their meaning, and that you all know that all who have killed are murderers and all who are murderers have killed. It would be an enormous task for the lawgiver to write down all the words that have the same meaning; no, in mentioning one term he indicated them all. [8] Presumably it’s not the case, Theomnestos, that if someone called you‘father-beater’ or ‘mother-beater’ you would expect satisfaction from him, while if someone said you struck your female or male parent you would think he should go unpunished since he had not uttered one of the forbidden terms. [9] I should be pleased if you would tell me – for you are an expert in this area and you are well versed both in practice and in speech – if someone said you had cast off your shield (and the law says: ‘if someone says that a man has thrown it away, he is liable to action’), would you have refrained from suing him and been content with the term ‘cast away the shield’, claiming to be unconcerned, on the ground that ‘cast away’ and‘throw away’ are not the same thing? [10] And if you were one of the Eleven, you would refuse to receive a prisoner arrested by someone claiming he had been stripped of his robe or had his tunic removed, and would release him on the same principle, because he is not being called a clothes-stealer?1 And if someone was caught abducting a child, you would not state that he was a kidnapper, if you are going to base your argument on names and pay no attention to the facts which cause names to be applied.
[11] Consider this too, judges. I think that from laziness and idleness he has not even been up to the Areiopagos. You all know that there, when they are trying cases of homicide, the parties do not use this term in making their oaths but the one which was used to malign me; the accuser swears that the defendant killed, the defendant that he did not kill. [12] Wouldn’t it be ridiculous to let off the perpetrator when he admitted he was a murderer, because the accuser stated in his oath that the defendant had killed? How does this differ from Theomnestos’ argument? You yourself prosecuted Lysitheos for slander when he said you had cast away your shield. Yet the law says nothing about casting away, but instructs that if anyone says that someone has thrown away his shield he is to pay a penalty of five hundred drachmas. [13] Isn’t it intolerable that when you need to take revenge on your enemies who have maligned you, you interpret the laws as I do now, but when you malign someone else against the laws, you don’t expect to be punished? Is it that you’re so clever that you can use the laws as you choose, or that you’re so powerful that you expect that your victims will never get their revenge? [14] And aren’t you ashamed to be so stupid that you think your profit should come not from good deeds done to the city but from evading punishment for wrongs you have done? Please read out the law.
Law
[15] I think, judges, that you all know that I am stating the matter correctly, while he is so dull-witted that he can’t understand a word that’s said. Now I want to enlighten him on this matter using other laws, in the hope that even now on the stand he may be taught and not cause us trouble in the future. Please read out these ancient laws of Solon.
Law
[16] To have his foot confined in the stocks for five days, if the court make this additional assessment.
Law
[17] He is to vow by Apollo and give surety. If in dread of judgment, let him flee.
Here the term ‘vow’ means ‘swear’, and ‘flee’ is what now we call ‘running away’.
Whoever debars with his door, when the thief is inside.
‘Debar’ is understood as ‘shut out’; don’t dispute that.
[18] Money is to be set at whatever rate the lender chooses.
‘Set’ here, my dear Theomnestos, is not to put in the balance but to exact whatever rate of interest he chooses. Again, read out the last part of this law.
[19] All women who strut overtly,
and
For damage to a lackey he shall pay double the amount.
Observe carefully. ‘Overtly’ means ‘openly’, ‘strut’ is ‘walk’, ‘lackey’ is‘servant’. [20] And there are many other examples of this sort, judges. But I think that if he is not made of wood he will have recognized that the realities are the same now as in olden times, but in some cases we do not use the same terms now as we did formerly. And he’ll prove it, because he’ll leave the stand without a word. [21] If he doesn’t, judges, I ask you to vote as is just, in the realization that it is a far worse insult to have it said that one has killed one’s father than that one has thrown away one’s shield. For myself I would rather have thrown away all the shields there are than to harbour any such notion about my father.
[22] This man, though he was guilty as charged and was faced with a lesser disaster, not only secured your pity but actually had the witness disfranchised. And I, who saw him do what you too all know he did, who kept my own shield safe, who have been accused of such an unholy and monstrous act, when the disaster which faces me if he is acquitted is the most dire, while he faces no danger of any significance if he is convicted of slander, shall I not get satisfaction from him? [23] What charge do you have to bring against me? That I was justly accused? No, not even you could say this. Well then, that the defendant is a better man and from better stock than I? But not even Theomnestos would claim this. Well then, that I have thrown away my arms and am now suing a man who kept his safe? But this is not the tale that is spread throughout the city.
[24] Remember that you have made him a large and handsome gift in that verdict. And who would not pity Dionysios for meeting such a catastrophe, a man who proved himself extremely brave in times of danger, [25] who left the court saying that the expedition on which we served had been a complete disaster, in which many of us had died, while those who kept their arms safe had been convicted of false testimony by the ones who threw theirs away, that it would have been better for him to have died than to return home to face such a misfortune? [26] Do not then feel any pity for Theomnestos for being insulted as he deserves and sympathize with him for outrageous acts and words in defiance of the laws. For what greater catastrophe could befall me than this, when I have been subjected to such a disgraceful accusation relating to a father such as mine? [27] A man who served as general many times and faced many other dangers in your company. And his person was never in the hands of the enemy nor was he ever convicted at audit, but at the age of sixty-seven under an oligarchy he was killed for his loyalty to you the people. [28] Isn’t it right to be furious with a man who has said such things and to support my father, since he too has been slandered? What could cause him greater pain than to be killed by his enemies and have it said against him that he was killed by his sons? When even to this day, judges, the memorials to his courage hang in your temples, while for my opponent and his father the memorials of their baseness hang in those of the enemy. So deeply is cowardice ingrained in their nature. [29] And indeed, judges, the taller and more impressive and dashing their looks, the more they deserve anger. For it’s clear that they have the physical strength but are morally weak.
[30] I am told, judges, that he will resort to the argument that he said this in anger because my evidence supported that of Dionysios. But you must bear in mind, judges, that the lawgiver grants no indulgence for anger but punishes the speaker, if he cannot prove that what was said is true. I have given evidence about this man twice in the past; for at that stage I didn’t know that you punish the witnesses and forgive the ones who throw their arms away.
[31] I don’t know that I need say more on this matter. I beg you to convict Theomnestos, in the realization that I could face no more serious trial than this. At present I am prosecuting for slander, but on the same vote I am being tried for the murder of my father, though I singlehandedly, once I passed my scrutiny as an adult, prosecuted the Thirty at the Areiopagos. [32] Remember this, and give your support to me, my father, the established laws and the oaths you have sworn.