Athenian men employed oaths at numerous points in their public lives9. 'Thus, for example, when a young child was enrolled in his or her phratry during the Apatu- ria festival, the father had to make a sacrifice to Zeus and make an oath concerning the child’s paternity, an oath which contained a conditional curse and blessing:
“These things are true by Zeus Phratrios! If I am swearing a true oath, may I have all good things, but if I am swearing a false oath, may I have the opposite.”10 In comparison with the two oaths described earlier, this curse is very simple and un
dramatic: perjury will result in the punishment of only one person and the words of the curse are apparently not accompanied by any ritual. Two historical anec
dotes suggest, however, that in some contexts, questions of paternity might gener
ate much stronger oaths. Andocides, for instance (1.126), tells the story of how the prominent Athenian politician Callias was confronted at this same festival by the male relatives of a form er mistress who demanded that he recognize her son as his own. Instead of yielding to these men and swearing the usual oath, Callias, in
stead, “took hold of the altar and swore that the only son he had or had ever had, was Hipponicus ... if that was not the truth, he prayed that he and his house might perish com pletely”. Here, Callias seems to improvise a more serious or powerful fo rm of oath, in order to signal his utter resistance to their appeal; he gives a rhe
torically exaggerated fo rm of the oath by saying that Hipponicus (now an adult) was “the only son he had or had ever had”, and he performs a dramatic and inten
sified version of the self-curse, as he grips the altar itself of Zeus Phratrios and calls for the complete destruction of himself and his household if he is lying. H e ro d o tus tells of an even more vivid oath sworn by a parent, when he narrates the story of Demaratus, the Spartan king, who had been deposed as a bastard and then sty
mied by his inability to prove his royal paternity. This Demaratus eventually sac
rifices a bull to Zeus Herkeios - the traditional protector o f the household - and forces his mother to hold its entrails (splancbna), while she swore to the true iden
tity of his father (6.67-68). Here, too, it seems probable that Demaratus - because 9C ole (1 9 9 6 ) pro vides a re ce n t and t h o r o u g h survey.
10 S I C-1 9 2 1 . 1 0 9 - 1 5 .
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81
his father Ariston is dead - is improvising on a similar Spartan version of the pa
ternity oath, and although the exact wording of the m other’s oath is not quoted, it is presented as an excessively fearful oath designed to force the unwilling woman to speak the truth.
In their political life Athenian males took many other important oaths, which like these paternity oaths can be arranged along a scale of increasing severity and fearfulness. Thus it seems that all officials to o k oaths before and during their term of office, including the members of the Boule, jurors, generals, archons and vari
ous other commissioners and overseers. M o st of these oaths, however, seemed to the Athenians to be unremarkable, especially when compared to an extraordinary form of oath sworn by litigants in murder trials. Antiphon describes this special oath as the “greatest and most powerful oath“ and Demosthenes concurs when he gives us our most detailed description of the oath11:
O n the A re o p a g u s , w h e r e th e law' allow s and ord ers trials fo r h o m i c i d e to be held, first the man w h o ac cu se s s o m e o n e o f such a deed will sw ear an o ath in v o k in g d e s tr u c ti o n o n him se lf and his fam ily an d his h o u s e h o l d , a n d no ordinary oath either, but on e w hich no one swears on any o th er subject, stand in g u p o n the c u t p iec es o f a boar, a ram, and a bull, w h i c h have b een slaug htere d b y th e righ t p e r s o n s o n th e p r o p e r days, so that ev ery relig ious r e q u i r e m e n t has b e e n fulfilled as re ga rd s th e tim e and as regards th e execu ta n ts .
Here we discover what makes the oaths sworn before the Areopagus so special:
the self-curse that is merely stated verbally in other Athenian oath ceremonies is here acted out in a very lengthy and grisly ceremony: the litigants swear their oaths while standing upon the cut-up pieces (ta tom ia) that have been prepared by special ritual performers, who on specially designated days slaughter and then mutilate a triad of special animals. Like the oath forced upon Dem aratu s’ mother, we must imagine that this very elaborate curse ceremony (unlike any ordinary oath, as Demosthenes says) was designed to be more fearful and compelling, and thereby (we suppose) more difficult for the potential perjurer to swear falsely, especially in a public ceremony that may have been witnessed by members of his own family and household, people who would suffer under such a curse if he should forswear it12.
A few lines later in the same passage Demosthenes says that defendants in a murder trial also swore this same oath, a point that is corroborated by Antiphon and Lysias13. O ther sources suggest, moreover, that the man who won a murder trial had to make an additional oath at the end of trial14:
In h o m i c i d e trials at th e P a ll ad io n o u r an ce sto rs ve ry p r o p e r l y i n t ro d u c e d th e rule (and y o u have m aintain ed this tr aditi on u p t o th e p re s e n t day ) th at th o s e w h o are v i c to r i o u s in th e v o t
11A ntiphon 5,11 (b o rk o n ton m egiston k a i ischurotaton) and D em osthenes 2 3 . 6 7 - 6 8 , the latter tran slate d by: M acD ow eil ( 1 9 6 3 ) 9 0 - 9 1 , w i t h o n e chan ge: “ stand in g upon” f o r M acD o- w e ll’s “ stand in g o v e r ” (the G r e e k is epi w i t h th e genitive). T h i s is an i m p o r t a n t detail fo r m y arg um en t, as m o s t o f these special o ath s invol ve c o n t a c t w ith m utilat ed animals.
12Faraone (1 9 9 3 ) 6 5 - 7 2 .
1 ’ D em othenes 2 3 , 6 7 ; cf. idem , 5 9 . 1 0 , A ntiphon 6 . 1 6 and Lysias 11.
14 Aeschines 2.8 7 ; trans. M acD ow eil (1 9 6 3 ) 9 1 - 9 2 .
8 2 C h r i s t o p h e r A . F a r a o n e
ing c ut th e c ut pieces (tem nontas ta to m ia) and sw e a r that th o se o f th e ju r o r s w h o v o t e d fo r h im w e re m a k in g the true an d rig ht d e cisio n , and that he had s p o k e n n o lie, and th at o t h e r w ise he i n v o k es d e s tr u c ti o n o n h im s e lf and his hous e, b u t pra y s th at th e ju r o r s w h o vot ed fo r h im have m a n y blessings.
Here, Aeschines suggests that the special ritual of swearing upon a mutilated ani
mal at another homicide court (the Palladion) is a very old custom introduced by their ancestors. Th e wording of this passage suggests, moreover, that just like the Greeks and Trojans in the H om eric oath (discussed earlier), the person who swears this oath also participated in the mutilation of the animal as he swore the oath. T he goal of this ceremony is also more complex than the pre-trial oaths, for it makes the person swearing responsible for his own perjury, while at the same time it explicitly deflects responsibility for a wrong judgment away from the jury, an important addition to which I shall return.
O ther evidence suggests, moreover, that witnesses at murder trials also had to perform the same type o f self-curse as the principle litigants. Thus the speaker of Antiphon 6 complains that the man who has accused him of murder has cleverly bypassed the correct procedure for prosecuting a homicide in order to avoid hav
ing his witnesses swear the proper oath: “The witnesses are giving evidence against me unsworn, although they ought to swear the same oath as y o u 15 and touch the slaughtered animals (sphagia) before giving evidence against m e” (Antiphon 5.12).
It would seem, then, that all of the principle participants in a murder trial were required to take this extraordinary form of oath, while participants in other trials were only compelled to take the ordinary form of oath. Finally, a single source reports that similarly grisly oaths were sworn by some public officials. The Aristotelian Constitution o f A thens speaks o f a special oath that the nine archons swore upon a special stone in the Agora at the beginning of their term of office (55.5):
. . . th e y go to the s t o n e u p o n w h i c h are th e c u t - u p (i.e. an im al ) bits (ta tom ia) - the s t o n e o n w h i c h the a rb itra to r s also ta k e an o a th b e f o r e th e y issue their d e cisio n s an d (o n w h i c h ) the pe r s o n s w h o are s u m m o n e d as w itn e sses ( t a k e an o a th ) that th e y h ave n o ev id en c e to give - and m o u n t i n g o n this st on e th e y (i.e. th e a r c h o n s ) sw ear th e y will g o v e rn ju stl y and a c c o r d ing to the laws, and th at th e y will n o t ta k e bribes.
This oath is mentioned in passing in a few other sources (e.g. ibid. 7.1 and Plutarch Solon 25.2), but this is the only ancient testimony which mentions standing upon the tom ia. This text seems to suggest that arbitrators and potential witnesses also to ok an oath at this rock, but it is not clear from the Greek if their oath included the cut pieces as well.
O ne gets the impression, then, from these descriptions that there was spectrum of Athenian oath-curses, that can be arranged along a scale of increasing dread and power: (i) a simple verbal curse that calls down destruction only upon the single individual who swears the oath; (ii) a more powerful curse that implicates one’s family and household in the destruction; (iii) to this more powerful and global
13 H e tu rns to sp eak at this p o i n t to the m a n w h o is p r o s e c u ti n g him.
C u r s e s an d So c ial C o n t r o l in the L a w C o u r t s 8 3
version o f the curse is added a ritual in which the one who swears the oath cuts up the animal himself or otherwise comes in contact with the carcass of a mutilated animal; and (iv) the most powerful curse of all, those apparently sworn only by principle litigants in murder trials while standing upon the cut-up bits of three dif
ferent animals, which have been slaughtered in a very elaborate and public ritual performed by special performers on a special day. T he text of the curse for these two most forceful versions, although it is sometimes briefly paraphrased, does not survive, but parallels from other parts of Greece and the eastern Mediterranean suggest that it went something like this: “Ju st as I, so-and-so, cut this animal into tiny pieces, in this very manner may I, too, be destroyed, and my family and my household, if I am lying.” It would seem, then, that what appears as a range of informal possibilities in the oaths of paternity discussed earlier, has in the rituals of the Athenian courts been more formalized, with the result that in the classical period the oaths connected with homicide trials were required to take this most fearsome and dramatic form.
This process is, as you can imagine, difficult to understand in light of an evo
lutionist model. O n the one hand, the use of these same terrifying curses in group oaths or international agreements - like the oaths of the 'I'heran colonists or those of the Trojans and the Greeks - does, in fact, begin to fall out of use in the early classical period16, a development that has traditionally lent some support to the evolutionist argument that such curses belong to a more primitive period of Greek cultural development. B u t if this is so, I find it all the more puzzling that equally dramatic rituals come to be formalized primarily in Athenian homicide trials and that this is in fact stressed by the Athenians themselves, as we saw in the testimony of Demosthenes and Antiphon. In fact, the only other evidence that I can find for the continuation of such terrifying rites is in connection with the O lym pic games.
Pausanias gives us a detailed description of the special ritual performed by the ath
letes, their entourage and the judges prior to competing in the games at Olympia (5.24. 9-11):
B u t th e Z eu s in th e c o u n c i l c h a m b e r is o f all images o f Z eu s th e on e that has b een desi gn ed to st ri ke fe ar in m e n w h o d o w r o n g (adikon andrort). H i s ep it h e t is L l o r k i o s ( “ O f th e O a t h ”) and in each h and h e h old s a th u n d e rb o l t. I t is re qu ire d that beside this im age th e athletes, their fa thers and th eir b r o t h e r s and even th eir traine rs sw ear an o a th u p o n the c u t - u p bits (tom ia) o f a b o a r th at th er e will b e n o m isd ee d (k a k o u rg em a) o n their p art in the c o m p e t i t i o n at O l y m p i a . . . T h e o ath is also ta k e n b y th o se w h o e x a m i n e the b o y s and foals en te ri n g the races, th at th ey will decid e fairl y an d w i t h o u t ta k ing b ri b es, an d that th e y will ke ep secre t w h at th e y learn a b o u t a can d idate , w h e t h e r ac ce p te d o r n o t . . . B e f o r e th e fe et o f (i.e. this statue o f Z e u s ) H o r k i o s , th er e is a b r o n z e p laq u e with elegiac verses i n s cr ib e d u p o n it d e
signed to instill fe ar in those w h o f o r s w e a r th em se lv es .
O nce again it is our misfortune that Pausanias does not quote the actual words of the oath. H e does, nonetheless, stress that the especially fearful and solemn nature of the statue and the oath is clearly designed to dissuade men who would other
wise act unjustly. This oath, as we shall see, will provide a helpful comparandum 16 Faraon e (1 99 3).
8 4 C h r i s t o p h e r A. F a r a o n e
for the oaths in the Athenian court system, which as we shall see is a very similar site o f intense personal competition.
A b ou t thirty-five years ago, J. M. Roberts surveyed ethnographic reports from around the world and suggested that "oaths and autonomic ordeals are patterns associated with somewhat complex cultures where they perform important fu nc
tions in the maintenance of law and order in the presence of weak authority and power d eficits"17. This description can, I think, make sense o f the oaths of the par
ticipants of the Olym pian games or even those of the Athenian archons, for both venues seem in fact to lack a strong central authority which could guarantee that these individuals would not cheat or accept bribes. T he use of such curses in law courts, however, is more complicated. Ethnographic parallels suggest that these kinds of extraordinary curses were often used in an ad hoc manner when judges suspect perjury. Thus Leach, in his discussion of a Sri Lankan village where per
jury was widespread and openly acknowledged, reports that if the accuser and ac
cused give diametrically opposed accounts in a court of law, the judge could insist that the litigants go to a temple or a sacred tree to swear an oath, a process that is perceived in some cases at least to elicit the true sto r y 18. Gibbs also suggests that oaths are usually employed in an ad hoc manner in the absence of p roof or in the case of conflicting testimony, when (in his words) there is no “rational” way to re
solve the case19. Frake discusses a Muslim village, where if a court fails to fo rm u
late an acceptable ruling, the litigants may turn over their dispute to god by swear
ing on the Koran an oath that will bring down disease on themselves and their relatives. Frake stresses the fact, moreover, that the threat o f this oath is apparently a very effective deterrent to false prosecutions in this culture, since one’s relatives are crucial in pursuing and arbitrating such disputes20. These improvisational uses of a more solemn oath as an additional sanction is similar to the ad hoc variations to the Athenian paternity oath discussed earlier, in which Callias and Demaratus employ a much more powerful version because the circumstances seem to call for it. O n the other hand - as Gagarin and others have noted - the req u ired oaths in Athenian homicide trials are somewhat unique; the closest parallel seems to be the practice of the Tiv who make all witnesses swear to tell the truth while touching a fetish known as the sw em and to proclaim that if they swear falsely, the sw em will make them ill and cause them to die21.
We have no direct information as to why Athenian public officials or O lympian athletes were made to swear this especially terrifying oath, but it seems prudent to assume that then, as now, top athletes and politicians were thought to be particu
larly prone to cheating and bribery. Thus, as in the case o f the Theran oath over the melting effigies, these very dramatic and frightening curses were probably used to create sanctions more powerful than those available to civic authorities or 17R oberts ( 1 9 6 5 ) 209.
IS L each (1 9 6 1 ) 4 0 - 4 1 , q u o t e d b y : C ohen ( 1 9 9 5 ) 112.
19G ibb s {196 9 ) 187.
20F rak e (1 9 6 9 ) 163.
21 G agarin (1 9 8 6 ) 31, c iti ng B ohann an ( 1 9 5 7 ) 4 1 - 4 7 o n the Tiv.
C u rs e s and So c ial C o n t r o l in th e L a w C o u r t s 8 5
peer pressure. Th e use of such curses in murder trials, however, needs some addi
tional explanation, for it is hard to see why such a sanction is needed in a homicide trial and not, say, a trial over a large inheritance. In both types of cases, there were in fact legal sanctions against false prosecutions and perjury, although the latter seem to have been pursued only rarely, in cases when the mendacity was particu
larly outrageous. In fact - as David C o h e n has emphasized - the orators fre
quently complain about the perjury of their opponents in ways that suggest that mendacity was widespread in Athenian trials and that jurors needed to depend instead on their own impressions of a litigant’s character and how well he was respected in Athenian society22. Indeed, I suspect that this high tolerance for per
jury in Athens, reflects an equally high tolerance for a well-told lie - a tradition that is as old as the Odyssey and the H om eric H ym n to H erm es and one that sur
vives down to the present day in some parts of Greece, where as Herzfeld and others have shown, outright fiction plays an important role in face-saving and in the gossip and other verbal attacks on one’s enemies23.
In the light of apparently widespread perjury, the use of extraordinary curses to sanction oaths in murder trials a lon e requires some further explanation. First of all, I would reject any notion that this apparently unique use of very powerful oath-curses reveals a suspicion that mendacity was greater in homicide trials, but rather I suggest that it points to a much greater fear that the endemic perjury at Athens might result in a false conviction o f murder and then an unjust execution.
Indeed, I think that Aeschines hints at the right explanation in a passage that I quoted earlier, where he reminds his audience that the winner in a murder trial had to “swear that those of the jurors who voted for him were making the true and right decision, and that he had spoken no lie, and that otherwise he invokes des
truction on himself and his house, but prays that the jurors who voted for him have many blessings“24. There was clearly a fear that if the jurors falsely acquit a murderer or falsely condemn an innocent man to death, pollution or other super
natural forces like the Furies would attack the false swearing litigant as well as the jurors themselves, clearly a very dangerous outcome for the city25. B y forcing liti
gants and witnesses in homicide trials to swear these especially fearful oaths in public, the city could probably expect that some proportion would in fact be dis
suaded from perjury by the oath, but the more important feature seems to have been that the wording of the oath protect the jurors and the city in those numer
ous cases where men perjured themselves and won the case.
ous cases where men perjured themselves and won the case.