Monday Quote Frenzy - On Evidence from Torture

Antiphon of Rhamnus was a professional speech writer in the 5th century BCE. His biography is sufficiently unclear that we don’t even know if he is the same person as Antiphon the Sophist, who wrote an early version of the natural rights theory and got into an argument with Socrates. Much of his business was writing arguments for people in court cases, and some of these have been saved as the Orations. They are available online in both English and Greek on the Perseus classics collection.

The fifth oration was written for a guy named Euxitheus, who was accused of killing a guy named Herodes. As part of the argument, he addressed a custom of ancient criminal investigations: torturing slaves and noncitizens to get testimony.

[29] After I had departed for Aenus and the boat on which Herodes and I had been drinking had reached Mytilene, the prosecution first of all went on board and conducted a search. On finding the bloodstains, they claimed that this was where Herodes had met his end. But the suggestion proved an unfortunate one, as the blood turned out to be that of the animals sacrificed. So they abandoned that line, and instead seized the two men and examined them under torture.

[30] The first, who was tortured there and then, said nothing to damage me. The second was tortured several days later, after being in the prosecution's company throughout the interval. It was he who was induced by them to incriminate me falsely. I will produce witnesses to confirm these facts.

[31] You have listened to evidence for the length of the delay before the man's examination under torture; now notice the actual character of that examination. The slave was doubtless promised his freedom: it was certainly to the prosecution alone that he could look for release from his sufferings. Probably both of these considerations induced him to make the false charges against me which he did; he hoped to gain his freedom, and his one immediate wish was to end the torture.

[32] I need not remind you, I think, that witnesses under torture are biased in favor of those who do most of the torturing; they will say anything likely to gratify them. It is their one chance of salvation, especially when the victims of their lies happen not to be present. Had I myself proceeded to give orders that the slave should be racked for not telling the truth, that step in itself would doubtless have been enough to make him stop incriminating me falsely. As it was, the examination was conducted by men who also knew what their own interests required.

[33] Now as long as he believed that he had something to gain by falsely incriminating me, he firmly adhered to that course; but on finding that he was doomed, he at once reverted to the truth and admitted that it was our friends here who had induced him to lie about me. However, neither his persevering attempts at falsehood nor his subsequent confession of the truth helped him.

[34] They took him, took the man upon whose disclosures they are resting their case against me, and put him to death,1 a thing which no one else would have dreamed of doing. As a rule, informers are rewarded with money, if they are free, and with their liberty, if they are slaves. The prosecution paid for their information with death, and that in spite of a protest from my friends that they should postpone the execution until my return.

Friedrich Solmsen, in his 1975 book Intellectual Experiments of the Greek Enlightenment, says that this is the earliest argument against the use of torture to get evidence. You would think we’d learn by now.