Popular Science Monthly/Volume 76/April 1910/The Trial of an Old Greek Corn-Ring
|THE TRIAL OF AN OLD GREEK CORN-RING|
RECENTLY ACTING PROFESSOR OF GREEK AT LEHIGH UNIVERSITY, AND MEMBER OF THE RHODE ISLAND BAR
LITTLE Greece contributed to civilization the most precious thing in the world—fearless freedom of thought. That novelty, it is true, kept the various city states from uniting as a mighty power, but that same disunion made the individual man and the individual mind superior to the dead level that saps the genius of progress. That active principle of the pioneer the Greek infused into his jurisprudence with the same telling success that stamped his efforts in the other departments of human advancement.
Though the system may have occasionally miscarried from its own weight, failure to protect the life, liberty and property of its citizens was not one of the faults of the Hellenic democracy. When Solon, in the sixth century before Christ, originated at Athens his system of trial by popular courts of jurymen-judges, he not only laid the foundation of national law but discovered the real secret of democracy, which is and has been the keystone of European and American institutions; for the hope of a free people lies in the possession of its courts.
Down through the brief but brilliant period of their political prestige, the Athenians laid many a wreath at the feet of the lawgiver, Solon, but probably never more reverently or more gratefully than when the commonwealth fought that still unfinished fight with the speculator and monopolist of the food-products of the nation. So that this review of the legal principles and procedure in the prosecution of an old Athenian corn-ring may be of interest and even of value to the historian and economist, the lawyer and patriot.
The oration with which this review deals is a speech for the prosecution, numbered 22 in the ordinary collection of speeches by Lysias, the celebrated Athenian speech-writer, and dates from the early part of the fourth century, possibly 387 B.C. To get a sympathetic setting, it is advisable to recall the appointments of the old Greek court, the laws and legal customs, as well as the peculiar, though not necessarily unique, conditions that dictated the legislation on which the prosecution relies.
Though no actual law has come down to us, the whole procedure in the Athenian courts—to say nothing of the evidence of Quintillian—shows that the law required every citizen to plead his own cause. And this was no harsh provision before the birth of rhetoric and logic when natural eloquence alone existed and professional oratory was not dreamed of. The establishment of the popular courts and the above requirement changed the literary vehicle from poetry to prose, as a mode of expression better adapted to argument and logical treatment, and finally the professional rhetorician came into the field just after the death of Pericles, that eloquent political "boss" of Athens. At this time, Gorgias, the famous Sicilian orator, showed the Athenians, as , the miraculous possibilities of their language and it at once became the style to cultivate oratory as a fine art. The ordinary man was now severely handicapped in a contest at court with a pupil of the professional rhetorician and lack of time, inclination or ability forced the suitor, if himself unskilled, to hire a logographer or speech-writer to prepare his speech for delivery.
The logographer wrote the speech and gave his client (if we may so call him) some instruction in general delivery. He was not a lawyer, in our sense, his duties ceasing when the case came to court; though at intervals, we find a "next friend," who serves as assistant speaker without pay. The speech-writer did not appear in a professional capacity and the delivered speech disclosed no identity which suggested a violation of the laws on pleading and practise.
The first logographer who wrote for pay was the orator, Antiphon, the master of criminal law. Isæus has left us an extended collection of his speeches, drawn up for suitors in inheritance cases. Demosthenes, after being looted by his guardians, took to speech-writing as a livelihood and laid the foundation of a greater fortune than the one he had lost. Lysias, a reduced metic (resident alien) at Athens, whose property had been confiscated by the "Thirty Tyrants," was probably the most famous and cleverest speech-writer of his times, if we can take Plato's word (Phædrus 228A). His character-study of the manners and mannerisms of the actual suitor was so thorough that the delivered speech became the apparent thought and word of the pleader himself. Not being a citizen, Lysias was practically out of politics and political speeches and so confined his attention to the remunerative preparation of the private speeches of those who wished to win their case. The senator who prosecutes the grain-dealers evidently considered that, in obtaining the services of the expert Lysias, he was doing all in his power to aid the public weal and to protect and enhance his own civic and political reputation.
While undoubtedly Lysias was "for the prosecution,"—whether that word is interpreted to mean the unknown senator or the state—we know nothing of the counsel for the defense—unless we have a right to infer that the corn-ring employed the regularly, though stealthily, retained, "corporation" defense-writer.
The case against the corn-ring was tried in one of the ten Heliastic (jury) courts, located in the market place at Athens, to the north of the Acropolis and Areopagus, those hills dedicated to religion and homicidal law. These courts of sworn jurymen-judges were higher courts and though apparently no appeal would lie from their decisions, some revisory power did exist, at least in the way of bringing new suit and being allowed a new trial before new jurymen-judges, on discovery of false testimony that had influenced the verdict, excusable defaults, etc.
An apparently large number of cases was settled by private and public arbitrators, the parties in interest ordinarily binding themselves to abide by the decision given. Besides family and friendly arbitrators, whose services were most widely sought and employed, there was a regularly established system of public arbitration, whose officials, chosen annually, by lot, were over fifty years of age. To these officials magistrates could refer any private suit, though from their findings appeal and recourse to a regular jury-trial in the higher court could be claimed. A fee was charged on each party. Criminal and public prosecutions, like the present, would not, from their very nature, come before the arbitrators, but be brought, in regular course, before the Heliastic jury, as noted below. The orators are continually emphasizing their offer of arbitration or criticizing their opponent's lack of it and it appears to have been a legal principle and honored custom to avoid litigation by attempting to settle all possible cases "out of court."
Such procedure would tend to greatly relieve congestion of cases, so that the "Law's delays," so fertile a source of modern criticism, would be reduced to a minimum, which must have become practically nil, when the statute became operative which limited the trial of a case to one day's time. There was, apparently, some fault found with this limitation; for Plato, in the "Apology" (37A), makes his beloved master, Socrates, say: "I don't believe I have intentionally wronged any man, but I am not persuading you of that; for we have been conversing with each other but a short time. But, as I think, if you had a law like other men, that the verdict in capital cases was not required to be given in one day but many days were allowed for the trial, you would have been persuaded."
But such extreme limitation seems no unhealthy prohibition, philosophers to the contrary notwithstanding, especially when we realize that at the preliminary hearing (the anacrisis) before a magistrate, all the evidence that each side had to offer—laws, decrees, documents of all kinds, oral testimony of witnesses, affidavits of commissioners, evidence of slaves given under torture—was reduced to writing and deposited, under seal, by the magistrate, in the "Hedgehog Box" (bristling with documents), to be kept in safety till the sacrifice and herald's prayer opened the trial on court-day. So that the speeches for the prosecution and defense and the decision of the jury virtually comprised the whole trial. This evidence, previously reduced to writing, was merely read by the clerk before the witness who stood on the speakers' platform and acknowledged his testimony. The direct and cross examination of the witnesses at the trial proper, was thus avoided and the time consumed in putting questions to one's opponent, who was obliged by law to answer, was but a small set-off to the time gained by thus preparing material beforehand. The prompt decision of a higher court, especially in a case so vital to the interests and even life of the citizens as this against the corn-ring, would be of immense benefit and must have been a procedure resulting from years of carefully considered legal and political experience.
And too, a prospective prosecutor might well hesitate to bring a public suit when he considered the penalties to which he would be liable if he failed to prove his case. Our senator, however, could be fully assured of the sympathy of the public and of enough votes from the jury to relieve him of anxiety in regard to obtaining the necessary one fifth of the total vote cast. Failing to receive the required number of votes, payment of all costs and expenses was exacted together with a fine of 1,000 drachma? or $180, which would purchase ten-fold more than at the present day. Add to this, the partial loss of citizenship, so far as the right to again bring similar suit is concerned, and we realize the seriousness of a public indictment for the plaintiff, as well as the effort of the Athenian legislator to prevent litigation among a people with such a mania for law that a character in Aristophanes's comedy did not believe that the country, pointed out on the map, was his native Attica because he couldn't "see any lawsuits going on."
As breaking the corn laws was a crime against the state no "summons" like that in a private suit was required, but the accusation was first laid before the president of the Boulè or unicameral senate, who referred the matter to the senate, in session, which then held a "hearing" which took the place of the "preliminary hearing" in the private case before the magistrate, noted above. If the senate favored the accusation, a resolution was passed to that effect, and the clerk notified the Thesmothetæ of the result of the "hearing," submitting therewith the evidence of which the latter might take official notice. It then became the duty of these officials to bring the case for actual trial before a jury. The Thesmothetæ, who were associated with the chief magistrates of the nation, were a board who had the supervision of the whole judicial system at Athens and, in that capacity, examined and noted defects in the laws and kept a record of judicial decisions. These six junior archons presided at the trial in great public cases like the present one, but only as formal chairmen, and did not in any way assume any of the functions of the jurymen-judges, whose decision covered both law and fact. The senate could not legally deprive a defendant of a trial by a jury of his peers, and no instance occurs of the assumption of such powers, except under the constitution-breaking "Thirty Tyrants" or by some patent violation of the legal rights of the citizen, though it was the ultimate court in public cases settled by a fine.
The jury, in the present case, would differ from our common law jury to-day not only in its wider function of judging both law and fact, but in the number of its members and the mode of rendering its decision. Any full-fledged citizen who signified his desire to serve by placing his name on a list of would-be jurymen, was entitled to be enrolled as juror, if he was over thirty years of age and the lot chanced to fall on him.
At the beginning of each official year, five thousand jurors were selected by the Thesmothetas by lot. The jurymen were sworn in immediately after this general list was drawn, before being assigned to any particular case. The exact nature of the juror's oath, at the time the suit against the corn-ring was brought, is uncertain, though it probably did not differ materially, if at all, from that preserved in Demosthenes's speech, "Against Timocrates" a generation later. The following is a careful translation of that interesting legal relic, with its searching appeal to the juror and citizen, who swears to defend the constitution.
Oath of Dicasts (Jurors)
That there should be a tyrant I will not vote nor an oligarchy; nor, if any try to abolish the Popular Assembly of the Athenians, or speak or put to the vote aught contrary to these things, will I hearken to him.
Nor a cancelling of private debts, nor a redistribution of land or houses of the Athenians.
I will not recall those in exile nor those on whom sentence of death has been passed. Neither those who are abiding here will I banish contrary to the existing laws and decrees of the Popular Assembly of the Athenians. I will not do so myself nor suffer others so to do.
I will not confirm an office so that a man hold it while still liable for his audit for a former office, whether one of the Nine Archons or Sacred Recorder or whatever offices are balloted for the same day with the Nine Archons, whether herald, ambassador or deputies.
I will not vote that the same man hold the same office twice nor that the same man hold two offices in the same year.
I will receive no gifts on account of my service in court, neither myself nor any other man or woman for me, if I know it, by any means or contrivance whatsoever.
I am not under 30 years of age.
I will listen to the plaintiff and defendant both alike.
I will give my vote on the question at issue and none other.
I swear by Zeus, Poseidon, Demeter; I invoke utter destruction on myself and my household, if I transgress any of these things and many blessings, if I keep my oath.
The jurymen, thus drawn and sworn, were divided into ten panels of five hundred each. Each person, drawn, received a ticket of boxwood or bronze inscribed with his own name, that of his father, his residential district (the three essentials required for the legal designation of a free citizen) and the number of his panel. Such tickets of bronze, with the Gorgon's head and the omnipresent, Athenian owl—the official bird—are still extant.
Each panel was made up of members of all ten Athenian tribes, thus reducing to a minimum religious and residential prejudice and favor. The smallest number on any one case mentioned by the classic authors is two hundred, but we find cases with five hundred (trial of Socrates), one thousand, two thousand and even as high as two thousand five hundred jurymen-judges. An odd man seems generally to have been added to break a tie vote, though from some remarks dropped by the orators, we can infer that an even vote would mean the defendant won. The number which sat on the jury in the prosecution of the corn-ring is not known, but from the number assigned to other cases of similar importance there must have been a jury of a thousand or even two thousand men, as in the political trial of the informer, Agoratus, by the restored democracy after the expulsion of the aristocrats. The theory underlying these great juries was that they were the largest possible representative committees of the whole Athenian democracy, with the delegated powers of the body-politic, the nearest approach to trial by the whole people. And, too, large juries were safer as a protection against bribery—that nightmare of the Athenian patriot. With the American reluctance to serve on the jury in mind, we instinctively ask how such large panels could have been obtainable. The answer ft found in the fact that the Athenians were the most litigious people in history, loved the popular law-courts as the safeguard of their constitutional liberty, and were furnished by Pericles and the great political bosses after him with sufficient pay for their services to provide a living to the poor Athenian from jury service alone, to say nothing of becoming the political equal of the richest or most aristocratic citizen. The Athenian seemed to realize, in unique fashion, that the hope and redress of a free people lies in the possession and use of its courts, and they were so eager to attend trials and serve on juries that the conservative Aristophanes satirized the typical Athenian disease of law-mania. In the "Wasps," the comic poet, in trying to ridicule popular juries, especially those of the paid and democratic brand, has given us an amusing study of the law-frenzy of the old juryman, Philocleon (Boss-Lover), who could not be kept away from court, though his son and two slaves net the house, from which the infatuated juror tries to escape through the chimney, by the rain-gutter, concealing himself under an ass that is being driven to market. The chorus of elderly jurymen come to "Boss-Lover's" assistance and finally compromise the matter by having the old man go back home and hold a private trial of the dog, Labes (Snap).
The case and the court house, in which any particular panel was to serve, was unknown till early in the morning of the day set for trial, when our jurors presented themselves and their bronze tickets, showing they had been drawn on the general list, and were then assigned by lot to their work for the day. The corn-ring jury then went to the "Middle Court" or the "Bed Court," or "Hole and Corner Court,"
"Music Hall Court," to the "Painted Colonnade," or to one of the other five courts, all with different names and door-ways of different colors. On receiving his assignment, the juror took the staff of the proper color and was immediately escorted to the court to match and, at his entrance there, gave up the staff, getting in exchange a check which, at the close of the day, was good for his fee of three obols or nine cents, which slave labor and low costs of living made many fold more than the mere amount indicates.
The appointments of the court room consisted of an altar for sacrifice, raised platforms for the presiding officials, for the parties to the suit and the witnesses. A statute of Lycus, patron-god of jurors, a water-clock to time the speeches and a table with the two voting-urns thereon probably completed the furnishings at the period when our case came on. Order was kept in court by Scythian slaves, detailed from the regular police.
After the speeches were made, the case was given to the jurymen-judges, who always rendered their verdict without leaving the courtroom but, however, with the utmost secrecy. The mode of voting was simple and, though secret, was open to the fullest scrutiny on the part of the spectators. A person, chosen by lot, distributed bronze discs, pierced by protruding axles, all exactly alike, except that the ballot for the plaintiff had a hollow axle and that for the defendant a solid one. Specimens of these ballots, marked "public ballots," are still extant. The herald proclaims "hollow ballots for the plaintiff; solid ones for the defendant"; hence hollow ballots meant condemnation, in the prosecution of the corn-ring, and solid ballots meant acquittal. Our juryman concealing the ends of the axle with thumb and forefinger, at the herald's notice, proceeds to the table and deposits in a bronze urn the ballot with which he wishes to record his verdict, casting the unused ballot into a wooden urn. The ballots are counted by the presiding officials and the result is immediately announced by the herald. Under the system, to say nothing of the natural feeling in this case, there were no delays resulting from the failure of the jury to agree; for a majority-vote decided the verdict.
The penalty, in this case, was fixed by law—which did not always happen—and, in default of a fixed penalty, not only actual damages but the penalty also was a matter for the jury to assess.
Athens and the Attic country-side, bounded by the mountains and the Greek seas, were practically insular when the supply of wheat was considered. A little nation, with only half the area of Rhode Island but equal in population to that thickly settled commonwealth, would thus present problems in plenty and corn-laws galore. The unproductive, light soil caused Solon early to forbid the exportation of any farm product except olive oil; while the export of native grain was absolutely forbidden by law, with the consequent encouragement of the importation of cereals. Bread-stuffs must, in the main, come from abroad and the fertile fields of Egypt and Sicily, to say nothing of Rhodes and Cyprus, and, above all, the Black Sea country of modern Russia were drawn on. The great problem in war, as well as in peace, was to keep open a way for the corn-merchantmen, especially to that north country; and on the failure or success in that vital work lay the hope or despair of the Greek admiral or ruling statesman. Foreign princes wooed the Athenian populace with presents of corn and Harpalus, afterwards treasurer of Alexander the Great, won citizenship at Athens by a gift of corn.
Forced importation of grain was a cardinal principle of Athenian economics, politics and law. The speeches of the "orators" are full of regulations, restrictions and enactments, rigorously and mercilessly enforced, against the dreaded day when city-folk and farmers alike might see starvation at their doors. Both Athenian citizens and metics (resident aliens) were forbidden to ship grain elsewhere than to Attic ports or to lend importers money on vessels unless the mortgaged cargo was to put in to the Piraeus, harbor-town of Athens. Another law required that at least two-thirds of the cargo of every corn-ship that touched at the port must be carried to the city. The popular assembly called for reports and demanded provisions for a supply of grain at its monthly sessions.
Among the numerous corn-laws, one, intended to prevent speculation and the artificial raising of the price of grain, went directly to the heart of the traffic by prohibiting retail dealers, on penalty of death, from buying more than fifty phormoi, or baskets, at any one time. The phormos was a measure equal to about a bushel and a half and the consequent seventy-five bushels—to the purchase of which each retailer was limited on any one day—was probably a sufficient stock in trade and, if enforced, a reasonable safeguard against "a corner in corn." The severity of the penalty imposed in this case by the law of the land, is remarkable, especially as the Athenian law seldom imposed the death-penalty at all; banishment, disfranchisement, etc., being preferred as potent purifiers of the body-politic. If the evil was driven out of the state, the state was the better for it. The control of such a small nation by a "ring," guild or corporation of tradesmen was easy, by virtue of its narrow boundaries, and, for that reason, heavier penalty and more rigorous control is imperative. The easier the violation, the greater is the temptation and consequent danger to the commonwealth. A twenty-nine million dollar fine would have been impossible, but the death-penalty was a more direct and persuasive inducement to respect for the public weal; and though the risk was still run by greedy speculators, as our speech informs us, the law, made by the people, for the protection of the people, was enforced by a jury of the people, though they must in the discharge of their duty send the guilty to the fatal draught of hemlock.
A special board of ten corn-commissioners, elected annually by lot, had charge of the enforcement of the above law, under which our senator prosecutes the "corn-ring." It was the duty of the board to see that the unground grain was for sale in the market at a fair price; that the millers sold the meal at a price proportionate to that of the corn; that the bakers sold bread at a price proportionate to the price of wheat and made their loaves of bread of a weight fixed by the corn-officials. These officers were also required to keep an account of all importations of grain.
The grain dealers or retailers were the middlemen between the people and the great wholesalers or importers, and we may trust them to evade the law by secret understanding with the importers in regard to buying in bulk; by combining with each other to buy low, hold and sell high; by raising the price by circulation of news of war, storm, wreck, etc., as we learn from the orations of Demosthenes and Lysias. Such are the legal principles, laws and procedure underlying the case which our senator brings in his prosecution of the Athenian "corn-ring" for illegal speculation.
The senate, in such cases, ordinarily chose a public prosecutor to defend the interests of the state. Our senator may have been glad to assume that position as a willing choice, as he intimates, to clear himself of the suspicion of being "in with the King."
The speech itself is brief and logical, clearly stated and forcibly argued, and sticks closely to the point at issue—a proceeding that did not always obtain in the Greek law suit, though that blemish is not entirely unheard of in our modern courts, at least by inference, which sometimes gets in where direct statements fail to enter. The speech, a master-piece for a conservative, public-spirited business man, is a fine example of Lysias's character-study. The defendants admit their guilt and apparently try to avoid the consequences by pleas in confession and avoidance. The pleas in excuse were (1) that the corn-inspectors suggested that the dealers buy up the corn; and (2) that their action had benefited the public by obtaining for it a supply of grain. Our senator replies (1) by showing, on evidence, that the corn-inspectors never made any such suggestions and that if they did it would not excuse such an open violation of a plain law; and (2) by showing that the role of public benefactor could not be very seriously assumed by men who "dodged taxes" and the other patriotic contributions and raised the price of corn in one day many fold higher than the law allowed.
Liberal extracts of the speech itself in the words of the old Greek senator follow:
The plug is put in the water-clock and the flow of water, which regulates the time for speaking, is stopped, while one of the defendants is put on the stand.
After this, rather evasive, reply the water-plug is removed, the water runs anew and the senator replies to the first plea, noted above:
However, to persuade you that they are lying about the officials, I must speak more at length about them. Now when these fellows put the blame on the officials we summoned the officials and questioned them. Four said they knew nothing about the matter and Anytus said that during the previous winter, when corn was high and these fellows were bidding against each other and fighting with each other generally, he advised them to stop their wrangling, thinking it to the interests of you who buy from them, that these dealers should buy as low as possible; for they've got to sell it higher than cost, if it's only a penny more. Now to prove that he did not order them to buy up corn and store it away but did advise them not to bid against each other, I will furnish Anytus himself to you as witness; and to prove, too, that he spoke these words under the former Senate and that these fellows appear to have bought it up this year. "Testimony (Read and acknowledged)." Now you've heard that they did not buy up the corn on orders from the officials. But I think, if they are really telling the truth about the corn-inspectors, they will not be defending themselves but be accusing the officials; for in matters which the laws have expressly provided for, why shouldn't both those who fail to obey and those who incite them to act contrary to the laws, pay the penalty?
The senator then replies to the second plea in excuse which admitted that they had "cornered" the supply but held their action had really benefited the people. This prototype of the modern trust-lover's argument is logically decapitated and the disguise of public benefactor is torn off in brief but telling language which exposed variation of price in a single day—the most charitable explanation of which was that the price changed as the "bulls" or "bears" respectively controlled the market. The senator also took the opportunity to impress on the "corn-ring" that obedience to the laws and willingness to make the patriotic contributions the nation called for was a condition precedent of loyalty and that charity in trade may be allowed as a supplement, but not as a substitute for the performance of duty to one's country and fellow citizens.
Calling upon the jurymen to regard this as a "test case"—as the people surely will—to chastise the guilty and protect their victims, with an appeal to justice and an argument to catch the crowd, our senator closes this speech of such vital interest to the people of constitution-loving and law-enforcing Athens.
You ought to consider that it's impossible for you to vote acquittal; for if you acquit men who confess they "combined" against the merchants, you'll seem to be plotting against the importers yourselves. But if they had made any other defence no one could have found fault with a jury who acquitted them; for "it's up to you" to believe whichever party you wish. But now, won't you seem to be doing something awful if you let men go scot-free who confess they violated the law?
Now, gentlemen of the jury, I think it's clear to everybody that law-suits on such matters are of the most general interest to the citizens, so that they will learn what opinion you hold about them, thinking that if you condemn these fellows to death, the rest will be more orderly and law-abiding, but should you let them go scot-free, you will be voting them full immunity to do whatever they please. You ought, gentlemen of the jury, to chastise them, not only for the past but as a warning for the future; for in that case even, they will be barely endurable. . . . And should they beg and implore you, you would not justly take pity on them but far more on those of the citizens who are dying through their rascality, and on the importers against whom they have "combined," whom you will please and make more zealous if you punish these fellows. But if you do not, what opinion do you think they will have when they learn that you acquitted the hucksters, who admitted they conspired against the importers?
I don't know what more I ought to say; for about other malefactors, when they are on trial, you must get your information from the accusers, but all of you know the rascality of these fellows. At any rate, if you convict these men you will "do the square thing" and you'll buy your corn lower; but if you don't, it will be higher.
- Lysias, Oration 22, Sec. 2.
- Demosthenes, Oration 24, Sec. 746.
- Lysias, Oration 13, Sec. 35.
- Aristotle, Resp. Athen., 51, 3.
- Demosthenes, Oration 20, Sec. 32.
- Board of prison and police commissioners in charge of executions, etc.