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The witness's exomosia in the Athenian courts

Published online by Cambridge University Press:  11 February 2009

C. Carey
C. Carey
Affiliation:
Royal Holloway, University of London
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Extract

My purpose in this note is to examine the evidence for the witness's oath of disclaimer in the Athenian lawcourts. This is an issue on which modern discussions tend to be brief for want of ancient evidence. However, although our ignorance on matters of detail relating to the exomosia remains, and is likely to remain, profound, I believe that we can, by a careful reading of the limited evidence which is available, draw a number of more or less confident conclusions about the form and content of the oath and the degree of restriction it imposed on witness and litigant. The lexicographers have the following to say on pressures applied to recalcitrant witnesses:

Polydeukes 8.37: τóν δ' ο βονλóμενον μαρτρεῖν κλἠτενον το μαρτνρεῖν πρρστιθντεσ ἔδɛι δ αῖτóν ἠ μαρτνρεῖν ζομóσασθαι ὡσ οῖκ εíδεíη ἦ μἤ χιλíασ ποστíνειν. κλητεσθαι μν οῖν στí καλεíσθαι εíσ μαρτνρíαν, κκλητεεῖεσθαι δ τó δíκην óφεíλειν πí τπí τι τσ χιλíασ καταβαλεíν.

Type
Research Article
Information
The Classical Quarterly , Volume 45 , Issue 1 , May 1995 , pp. 114 - 119
Copyright
Copyright © The Classical Association 1995

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References

1 For recent discussions of the issue, see Harrisonl, A. R. W., The law of Athens vol. ii (Oxford, 1971), p. 144Google Scholar; MacDowell, D. M., The law in classical Athens (London, 1978), p. 243Google Scholar; Todd, S. C., ‘The purpose of evidence in Athenian courts’, in Nomos: studies in Athenian law, politics and society (Cambridge, 1990), p. 24Google Scholar.

2 This item follows a reference to the process of exomosia used by individuals selected to serve as ambassador who wished to decline on the grounds that they were unable to serve. Harpokration s.v. ξωμοσία deals only with the use of the exomosia by ambassadors and ignores the witness's oath of disclaimer, as does his discussion of kleteusis (s.v. κλητεσαι).

3 For kleteusis see most recently Todd (cit. n. 1 above) 24f., with my demurrer, Apollodoros: Against Neaira [Demosthenes]59 (Warminster, 1992), p. 25 n. 38Google Scholar.

4 For the reliability of the lexicographers see the general comments of Whitehead, D., The demes of Attica (Princeton, 1986), pp. 53–5Google Scholar.

5 See Bonner, R. J., Evidence in Athenian courts (Chicago, 1905), 46fGoogle Scholar.

6 The Souda (quoted above p. 1) does not note the choice, but mentions only the claim of ignorance. I find no evidence to support the suggestion of MacDowell, , The law in classical Athens 243Google Scholar, that a witness could assert that the facts were not as stated. Todd (cit. n. 1 above) 24 n. 8 is likewise sceptical.

7 I assume that the role of the witness in court was primarily to confirm questions of fact, against Todd (cit. n. 1 pp. 30f.), who sees this role as secondary to that of providing support for a litigant; I address this question in greater detail in ‘Legal space in classical Athens’, Greece and Rome 41 (1994), 12fGoogle Scholar.

8 In ‘Artless proofs in Aristotle and the orators’, BICS n.s. 39 (1994), 98fGoogle Scholar.

9 The formulation of Bonner, R. J. and Smith, G., The administration of justice from Homer to Aristotle vol. ii (Chicago, 1938), 163fGoogle Scholar. (‘A witness had to give the evidence for which he was summoned or else swear an exomosia, an oath of denial to the effect that he knew nothing about the case and could give no evidence’) appears to go beyond the Souda, since it suggests that only complete ignorance of the dispute could exempt a witness from giving evidence. If this is what is meant it is certainly erroneous, since we know (n. 11 below) that anyone taking the oath could still appear as witness for the opposing side. Whatever the precise formulation, the exomosia dealt with specific issues relating to the case, not the case as a whole.

10 He might also hope that the jurors would over the course of the trial forget the precise details of individual testimony and remember only the fact that a given witness had appeared in response to a deposition drafted for him.

11 The individuals offered the oath in [Dem.] 45 supported Phormion at arbitration, and therefore in all probability also acted as his witnesses in the hearing in the dikasterion. Hegesandros in Aischin. 1 almost certainly appeared for Aischines' opponent, as 1.69 indicates: οὐκ γνόουν ὂτι ὑπερόψεται τν ὂρκον, ὦ Αθηναῖοι, λλ κα προεῖπον ὑμῖν. κκεῖνο δέ μοι πρόδηλόν στιν, ὂτι, πειδ νν οὐκ θέλει μαρτυρεῖν, αὐτίκα πάρεισιν ν τι πολογίαι. (‘I was now unaware, men of Athens, that he would despise the oath; in fact I told you so. And this too is clear to me, that since now he refuses to testify he will immediately come forward as part of the defence.’) The individual who takes the oath in Isai. 9 is a vital witness for the opposition (9.5–6, 22, 25, 31). This suggests a further reason why a litigant might wish to put a deposition to a potential witness who he knew would take the oath, particularly when speaking first: this would provide an opportunity for him to undermine the credibility of a witness for the opposition.

12 Cf. Bonner-Smith (cit. n. 9 above) 137.

13 I am grateful to Dr R. G. Osborne for reading and commenting on an earlier draft, and to the anonymous referee for a number of observations from which I have profited.