LITMIR.BIZ

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      In the fifteenth chapter of his Rhetoric, Aristotle gives a list of five ‘extrinsic’ proofs that may be used in a legal process, besides the figures of rhetoric which may also be used: the laws, witnesses, custom, torture and oaths. Aristotle’s term for torture, and the general Greek term, is basanos, which is philologically related to the idea of putting something metallic to a touchstone in order to verify its content. Thucydides uses a very similar word to describe the work of the historian: the historian must work with a critical spirit and he must not simply accumulate all sorts of records without a critical principle, but must test them with a touchstone to be sure of their truth; he must inquire critically about them. ‘Judging from the evidence which I am able to trust after most careful inquiry …’ (Peloponnesian War, I.1) is Thucydides’ formulaic description of the historian’s task. Basanos, torture, evidently connoted a kind of necessary critical inquiry, but it was not the kind of inquiry that could be made of a free man. Put in slightly different terms, Aristotle’s basanos is a kind of inquiry whose results may serve as evidence in a sub-procedure within a larger legal procedure that is essentially adversarial but whose citizen-litigants may not be subjected to the sub-procedure of basanos.

      Our sources for the history of evidence and procedure in Greece are unanimous on the question of who can be subjected to basanos: it is the slave and, under certain circumstances, the foreigner. The Greeks, however, left no works on civil or criminal procedure, and our chief sources for the torture of slaves are the legal orators and the comic playwrights. The former, in a series of written speeches to be delivered by their clients or to serve as models for forensic rhetoric, and the latter, in dramas that touch upon daily life, are not the lawyer’s nor the historian’s ideal sources, and there has been much scholarly dispute concerning the Athenian attitudes towards evidence derived from the torture of slaves and the frequency of their use of it. A well-known collection of speeches by the fifth-century orator Antiphon illustrates the general idea concisely: a choregus (one who was responsible for the civic duty of paying the chorus at religious festivals, and later at dramatic festivals as well), accused of murdering one of the boys who was trying out for a place in the chorus, describes the terms of investigation:

      [My accuser] may take as many witnesses as he likes, examine them, examine witnesses who are freemen, as becomes the examination of freemen, and who, out of self-respect and justice are naturally disposed to speak the truth about the facts. In the case of slaves, he may interrogate them if their statements seem truthful to him. If their statements do not, I am prepared to deliver all my own slaves to him so that he may have them put to the torture. If he requires the testimony of slaves that do not belong to me, I promise, after having obtained the permission of their owner, to deliver them also to him so that he may put them, too, to the torture in whatever manner suits him.

      There are a number of legal problems about this passage, one being that the choregus seems to be referring to an informal investigation designed to avoid a trial. In any case, the right of a citizen in a criminal (or indeed a civil) suit to demand the torture of slaves seems to have been generally accepted, whether in an informal exchange of investigations or in a trial proper. In another speech, Antiphon offers one reason for the practice of torturing slaves: a perjured slave cannot suffer the penalties of a perjured free man, that is, he cannot be declared legally infamous (atimos), with the attendant disabilities of that status, nor can he be fined. That slaves could be tortured is also clear from some papyrus evidence from Greek Egypt, which states that if judges cannot form an opinion after all the evidence is in, they may apply corporal torture to slaves after their testimony has been given in the presence of both parties to the case. That this was a general Greek practice is evident from the fact that the Roman emperor Hadrian cites it in a rescript (Digest 48.8.1.1) evidently derived independently from other Greek practice.

      The modes of torture are described offhandedly in a scene from Aristophanes’ The Frogs. Dionysius, having changed places and dress with his slave Xanthias, has forgotten the right of a master to prove his own innocence by offering his slaves for torture. Shortly after they have changed places, Xanthias is accused of theft, and he sees a way out; he tells his accuser:

      I’ll make you a fair offer;

      Arrest my slave and put him to the torture,

      and if you get your proof, put me to death.

      Aiacos. What kind of torture?

      Xanthias. Any kind you wish.

      Tie him to a ladder, suspend or, whip him.

      Pile rocks upon him, put vinegar in his nose,

      Whip him with bristles: but not with leeks or onions.

      But it is also possible that the speech reflects a considerable degree of exaggeration and that the very details of Xanthias’ panta tropon suggest that such a variety of tortures may have been more encyclopaedic in a comic sense than a description of actual practice.

      It is also necessary to point out that the power of masters to punish slaves corporally was generally accepted among the Greeks, slaves sometimes being referred to as andrapoda – ‘human-footed stock’ – in contrast to tetrapoda – ‘four-footed stock’. Although Greek attitudes toward the proper treatment of slaves improved between the sixth and the third centuries, such a power on the part of masters suggests that it was not a long step to permit the judicial torture of slaves, since they were routinely subject to physical coercion of the most severe kind even outside the sphere of the law.

      Although at least one scholar has claimed that torture of slaves was the survival of a type of ordeal that was only later worked into the Athenian rules of evidence, our earliest sources, the fifth-century Greek orators, refer to the interrogatory torture of slaves as if it were a commonplace. A well-known example of this literature is the following passage from the orator Isaeus:

      Both personally and officially you regard torture as the surest test. Whenever freemen and slaves appear as witnesses, and it is necessary that fact in the case be discovered, you do not employ the testimony of freemen, but by torture of the slaves you seek to find the truth of the circumstances. And that is natural, men of the jury, for you know that some of the witnesses have appeared to give false evidence, but none of the slaves has ever been proved to make untrue statements as a result of their torture.

      Such a statement implies an Athenian view of the reliability of torture that contrasts sharply with other aspects of Athenian culture. Indeed, this and similar statements in other orators have been dismissed as fictions, chiefly because there is also no evidence as to widespread or even customary torture of slaves in Athenian law. The same orators upon whose evidence for the torture of slaves we are forced to rely also imply that threats to torture slaves were part of the rhetorical display of the court and that some orators could also give perfectly plausible arguments against the truthworthiness of slave testimony. In short, the fifth and fourth centuries provide some ambiguous evidence that the judicial torture of slaves was acceptable in theory, but very little evidence either that many slaves were tortured or that Athenians thought very highly of such testimony.

      But Greek law had two facets: on the one hand, a body of civil law was slowly built up possessing its own rules and procedures; on the other, the law was often in danger of being exploited for political reasons, and there is much more evidence that in political cases torture may have been more frequent than in routine civil or criminal litigation.

      After the Athenian defeat at Syracuse in 413 BC, the Syracusans put the Athenian leader Nicias to death because, as Thucydides says, ‘certain Syracusans … were afraid … that on some suspicion of their guilt he might be put to torture and bring trouble on them in the hour of their prosperity.’ (Peloponnesian War, VII.86) The possibility that Nicias might have been tortured by the Lacaedemonians appears to have been a justified expectation of the Syracusans, perhaps because interrogatory torture under the extenuating circumstances of battle or capture by an enemy power was not part of the routine law of the Greeks and offered freer opportunities for torture and aggravated punishment.

      The exceptional character of political life, whether in the hands of the enemy or in those of one’s political enemies at home,

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