ABSTRACT
The speaker is a landowner who has been charged with an offence in relation to the sacred olives. From the time of Solon the olive had enjoyed special protection in Attica and even in the fourth century there were limits on a landowner's right to dispose of olive trees on his property. But there were still more stringent restrictions on the sacred olive trees. These were trees (called moriai) scattered about Attica, often on private land, which were believed to have been propagated from the sacred olive tree that Athene had planted on the Akropolis. The oil from the olives was used for the prizes for victors in the Panathenaic games. At this date, as our speech makes clear, the task of collecting the oil was farmed out. By the time of the composition of the Ath. Const. in the 320s (§60.2) the state charged a prorated levy in oil on the properties which contained one or more of these olives. The status of the olives meant not only that they could not be removed, even where they were awkwardly positioned, but also (as we learn from this speech) that there was a ban on working the land too close to them. The present case concerns a sekos, which literally means ‘enclosure’ and probably in this context denotes an enclosed stump of one of these olives. That these too should be protected makes sense, since olives have remarkable regenerative powers. Since the olives had a religious dimension, their protection was overseen by the Areiopagos, which also heard trials for offences against them. Aristotle Ath. Const. 60.2 tells us that at one point the penalty for destruction was death but adds that by the 320s trials had fallen into abeyance. The present case does not allow us to determine whether trials were more common earlier in the century or our speaker is the target of a rare prosecution. The speech seems however to envisage not death but exile as the penalty on conviction (§§2, 41; cf. also §§3, 25) and it seems that at some point by the end of the fifth century a change had been introduced which is not noted by Aristotle. The speech can be dated some time after the archonship of Souniades in 397/6 (§11) but how long is uncertain. There is a commentary on this speech in C. Carey, Lysias: Selected Speeches (Cambridge 1989) and a more substantial commentary with detailed introduction in S.C. Todd, A Commentary on Lysias, Speeches 1–11 (Oxford 2007).
[1] In the past, Council, I used to believe that it was possible for anyone who so desired to live a quiet life and avoid lawsuits and problems. But now I have fallen victim so unexpectedly to accusations and vile persecutors that it seems to me, if I may say so, that even people not yet born should fear for their future. And because of people like these the risks of prosecution are the same for the innocent and those who have committed many crimes. [2] This is how intractable my case has become: initially I was charged with removing an olive tree from my land and my accusers went to the contractors for the sacred olive crop to make enquiries, but since they could find no evidence of wrongdoing against me in this way, they now claim that I removed an enclosed stump. They believe that this accusation is most difficult for me to refute and they can say whatever they want. [3] And on charges which my opponent has had a long time to plot before bringing them to court I am forced to hear the allegations at the same time as you who will judge the case and then argue in defence of my citizen rights and property. Nonetheless, I shall try to give you the facts from the beginning.
[4] This property belonged to Peisandros and, when his property was confiscated, Apollodoros of Megara received it as a reward from the people. For most of the time he farmed it himself, but a little before the Thirty Antikles bought it from him and leased it out. I bought it from Antikles in peacetime.[5] In my opinion, Council, my task is to demonstrate that when I acquired the property, there was no olive tree or stump on it. For I think that I could not rightly be punished for the earlier period, even if there had been many sacred olives on it. For if they had not been removed by my agency, it is not right for me to stand trial for other people's crimes as though I were guilty. [6] For you all know that among the general hardship for which the war has been responsible, the more distant properties were ravaged by the Spartans and those nearby were plundered by our friends. So how could it be right for me now to be punished for the disasters which befell the city at that time? [7] In particular this property was confiscated in the war and remained unsold for more than three years. So it is not surprising if they dug up the sacred olives at a time when we could not even protect our own property. You know, Council, all of you who are especially concerned with such matters, that there were many estates thick with privately owned and sacred olives at that period, most of which have now been dug up and the land is bare. And though the same men have owned them both in peace and in war you do not see fit to punish them, when other people dug them up. [8] And yet if you exonerate men who have been farming the land throughout, surely people who bought it in peacetime should not be punished by you.
[9] Anyway, Council, though there is much that I could say about events which happened previously, I think that what I've said suffices. But when I took over the property, before five days had passed, I leased it out to Kallistratos in the archonship of Pythodoros, [10] who farmed it for two years; and he did not take over either a privately owned or sacred olive or a stump on it. In the third year Demetrios here worked it for a year. In the fourth year I leased it to Alkias the freedman of Antisthenes, who is now dead, and then for three years Proteas in turn leased it from me. Please come forward.
Witnesses[11] Since this period has expired, I have been farming it myself. My accuser claims that the stump was dug up by me in the archonship Souniades, but the people who worked the land earlier and leased it for many years have testified that there was no stump on the property. How on earth could a man more convincingly demonstrate that his accuser is lying? For when something was not there earlier, it is impossible that a man working the land later could have removed it.
[12] Now in the past, Council, I used to grow angry whenever people said I was clever and sharp and would never act casually and without calculation, because I thought that what they were saying was more than my due. But now I could wish that all of you took this view of me, so that he would reckon that if I tried any such act I calculated the likely profit for removal and the penalty for the offence, and what I could accomplish, if I went undetected, and what I would suffer from you, if I were discovered. [13] For everyone in the world commits such crimes not from willfulness but for profit; and it is right for you to look at it in this way and prosecutors should base their accusation on these grounds, demonstrating what the likely benefit was for the perpetrators. [14] My opponent however could not prove that I was driven by poverty to attempt an act such as this nor that the property was suffering from the presence of the stump or it got in the way of vines or that it was close to a house or that I was unaware of the risk I ran in your court if I did anything of the sort. [15] I on the contrary could show that there were many serious disadvantages involved. To start with, I dug up the stump in daylight, as though it wasn't imperative to have no one notice me but for the whole of Athens to know. And if the business was solely a matter of disgrace, perhaps one might have ignored the passers-by. In fact however what I risked was not disgrace but the most severe penalty. [16] Surely I would have been the most miserable man alive, if I was going to have my servants no longer as my slaves but as my masters for the rest of my life, if they were privy to an act such as this? So even if they had committed the worst of offences against me, I would not have been able to punish them. For I would have been well aware that it was in their power both to have their revenge on me and to gain their personal freedom by laying information. [17] Furthermore if it entered my head to ignore my servants, how could I have had the nerve? When so many people had leased the property and all of them were aware that I had removed the stump for the sake of a short- term profit, and when, with no time limit for prosecution, it was in the interest of everyone alike who had leased the property for the stump to be preserved, so that they could indicate who they had passed it to, if anyone accused them. As it is, they have patently acquitted me and made themselves liable to the charge, if they are lying. [18] Now if I had managed to contrive this as well, how could I have settled with all the passers-by or my neighbours, who don't just know all the things about each other which anyone can see but even find out about things which we conceal from anyone's knowledge? Now though some of these are friends, others are in fact in dispute with me about my property. [19] And my opponent should have offered them as witnesses and not just offer such reckless accusations. For he claims that I supervised, while my servants cut up the stock and the ox driver loaded up the wood and went off with it.
[20] But surely, Nikomachos, you should at that time have both summoned your available witnesses and exposed the matter. And you would have left me with no defence, while for yourself, if I was your enemy, you would have avenged yourself on me in this way, and if you are acting for the city's benefit, you would thus have proven the facts and would not have looked like a sykophant, [21] while if you were looking for profit, then you would have got the biggest return then. For with the matter exposed I would have had no other means of salvation than to settle with you. Now having done none of these things you expect to ruin me with your arguments and allege that because of my influence and my money nobody is willing to testify for you. [22] And yet if when you say that you saw me removing the sacred olive you had brought the nine Archons or instead some members of the Areiopagos, you would have needed no other witnesses. For in that case the people who were going to decide the case would have known that you were speaking the truth.
[23] I am placed in an utterly terrible position, in that if he had provided witnesses, he would have expected you to believe in them, but when he has none, he thinks that this too should be my loss. I am not surprised at him. For I imagine that he will not be short of arguments of this sort as he is of witnesses; but I don't think it right that you should share his attitude. [24] For you know that on the plain there are many sacred olives and burned stumps in my other properties, which it was much safer to remove and dig up and encroach on, if I wanted to, since the offence was less likely to be detected with there being many. [25] But as it is I treat them with great care, as indeed I treat my citizen rights and my property in general, in the belief that both of these are at stake. I shall offer you yourselves as witnesses, who deal with the olives every month, and send out assessors every year. And none of these ever yet fined me for working the ground adjacent to the sacred olives. [26] Now surely I do not take so seriously small penalties and attach no importance to risks to my life. And I devote such obvious care to the large number of sacred olives against which it was easier to commit an offence but now stand trial for removing a single one, which I could not have dug up undetected.
[27] And was this better for me, Council, to break the laws under democracy or at the time of the Thirty? I say this not because I had the power then or that I've been subjected to such smears now, but because there was more opportunity for anyone so minded to do wrong then than now. In my case it will be clear that during that period I committed neither this nor any other offence. [28] How then, if I was not my own worst enemy in the whole world, when you take such care, could I have attempted to remove the sacred olive from this property? In which there is not a single tree but there was a single olive stump, so they say, and the property is ringed on all sides by roads and neighbours live all about me and the property was unfenced and visible on every side? Who would have been so reckless as to attempt such an act in a situation like this? [29] It seems to me monstrous that you, who have been given the task for all time to take care of the sacred olives, have never yet punished me for encroaching or brought me to trial for removing any, whereas this man who does not in fact farm nearby and has not been elected as a supervisor and is too young to know about these matters charges me with removing a sacred olive.
[30] I beg you not to view claims such as his as more convincing than the facts, and not to listen to my enemies talking about matters on which you have direct knowledge yourselves, taking account both of what has been said and of my general conduct as a citizen. [31] For I have carried out all the duties assigned to me more zealously than I was compelled to by the city, serving as trierarch and paying war levies and acting as chorus producer and performing the other liturgies as lavishly as any other citizen. [32] Yet if I had carried out these tasks adequately and without enthusiasm, I would not have been put on trial at risk of exile and loss of the rest of my property, but I would own more, without committing an offence or put- ting my life at risk, while in doing what he accuses me of doing I stood to make no profit but was placing myself in danger. [33] Now you would all agree that it is fairer to use major indicators in major cases and to place more faith in the testimony of the whole city than allegations made by this man alone.
[34] Furthermore, Council, consider the rest of the evidence. I went to him with witnesses, and I said that I still had all the servants whom I possessed when I took over the property and was willing to hand over for torture any of them he chose, in the belief that this offered the strongest test of his claims and my actions. [35] But my opponent refused, saying that there was no trust to be placed in the servants. It seems to me incredible that if men under torture make accusations against themselves, in certain knowledge that they will die, when it comes to their masters, to whom they are naturally most hostile, they would rather endure being tortured than to speak out against them and be quit of their current misfortunes. [36] Indeed, Council, I think it is clear to everyone that, if Nikomachos had demanded the servants and I had refused to hand them over, it would have seemed that I had a guilty conscience. So since when I offered to hand them over he was unwilling to accept them, it is right to take the same view of the matter, especially since the risk is not the same for both. [37] For if they had said what he wanted about me, I would not even have had the basis for a defence, while if they did not agree with my opponent, he was not liable to any penalty. This was how eager I was, in the belief that it was in my interests that you should know the truth from torture and witnesses and indicative evidence. [38] You should ask yourselves, Council, which party you should trust more, those for whom many witnesses have given evidence or the man for whom no one has had the nerve, and whether it is more likely that this man is telling lies at no risk to himself or that I committed an act of this sort with such great danger attached, and whether you think that he is acting in the interests of the city or his accusation is that of a sykophant? [39] I think you all know that Nikomachos is bringing this action at the instigation of my enemies, not in the hope of proving my guilt but in the expectation that he will get money from me. For since trials such as this are especially invidious and intractable, everyone is especially anxious to avoid them. [40] I however refused, Council; but once he accused me, I made myself available to you to deal with as you see fit and I did not come to terms with a single one of my enemies for the sake of this trial. These people get more pleasure from maligning me than from praising themselves; and none of them has ever yet personally attempted to do me any harm openly but they send people like this against me, people you could not fairly trust. [41] For I would be the most unhappy man alive, if I am exiled unjustly, childless and alone, my household desolate, and my mother destitute, deprived on the most shameful of charges of my native land, for whose sake I have fought many battles on sea and on land, behaving with propriety both in democracy and in oligarchy.
[42] However, I don't think that I need to say this here, Council. I have proven to you that there was no enclosed stump on the property and I have offered witnesses and evidence. You should remember this as you reach your decision on the case and you should ask my opponent why it was that, when it was possible for him to catch me red-handed, he has subjected me to a trial of this magnitude such a long time afterward, [43] and why without offering a single witness he seeks to be believed on the basis of speeches, when he could have proven my guilt with the facts themselves, and why, when I offered all the servants whom he claims were present, he refused to accept them.
