Hollow and Solid

by Attic Rhetoric, Simulacrum · Universitas Scholarium

---

Smikros of Phyle came to my house in the Peiraieus on the ninth of the month, a little after the market had filled. He had a cheese with him wrapped in fig leaves, and he held it in both hands in front of him as if he had been told to deliver it to someone and had not been told to whom. I took the cheese. I asked him to sit. He looked at the stool for some time before he sat on it.

I write speeches for the courts. I am from Chalkis, and I have lived in the Peiraieus for twenty-two years and paid the metic tax every one of them, and I have never spoken in an Athenian court, and I never shall. The law does not need me there. A man who is sued must speak for himself. What he says, however, he may buy, and a great many men buy it from me.

I do not begin by asking what happened. Everyone who comes to me has already arranged what happened. I ask where he lives, how many children he has, what he does in the morning, whether his father is alive. Then I listen to how he answers. That is the whole of my trade. The facts are usually the same as everyone else's facts. The man is not.

Smikros answered in short pieces, with a stop after each, as if he were putting stones on a wall and wanted each one to settle before the next. He lived on the north side of Phyle, above the road to the fort. He burned charcoal in the winter and kept goats in the summer and in the winter both. His father was dead. His wife was alive. He had one son, eleven years old, called Pheidon, and two daughters who were married. He had seventeen goats. He said the number twice. Of the goats he said they and them, and once he said she of one goat, and then corrected himself, and then did not correct the next one.

Then I asked what had happened.

His neighbour Deinias had a vineyard on the slope below him, planted three years before with young vines on stakes. In the month of Mounichion the goats got into it, and in one night they had eaten the shoots and the tender bark off a great many of the young plants and pulled down a run of the stakes. Deinias brought a suit for damage. The case had gone to the public arbitrator, an old man from Acharnai, and the old man had heard both of them in a colonnade near the Agora and had found for Deinias, and he had found that the damage was done wilfully, and the law says that damage done wilfully is paid twice over. Deinias had put the loss at three hundred drachmas. The arbitrator gave him six hundred. Smikros had not accepted the award, and so the case was going up to a court of two hundred and one, as the cases under a thousand drachmas do, in nineteen days.

"Six hundred," he said. "I have seventeen goats."

I asked why the arbitrator had thought it wilful.

Deinias had said that the wall between them was pulled down from Smikros's side. The stones lay on the vineyard side, he said, where they had been pushed. He had said, too, that Smikros had quarrelled with him the summer before over water from the spring, and that a man who has quarrelled with his neighbour over water has a reason to let goats into his vines.

"Did you quarrel over the water?"

"Yes."

"Were the stones on his side?"

"Yes. That is where the goats push them. They go up the wall. It falls on the far side. It always falls on the far side."

"Did you let them in?"

"No," Smikros said. "I did not let them in."

I asked him who had.

He looked at the cheese, which I had put on the table, and said nothing. I waited. A man who will not answer a question will sometimes answer the next one, if it is a smaller one. I asked him how the goats were kept at night. He said in a fold beside the house, with a wall round it and a gate.

"And the gate was shut?"

"The gate is always shut."

I wrote that on the tablet. I did not write anything else. I told him my price was thirty drachmas, fifteen now, and that I would come up to Phyle in seven days and hear the speech in his own mouth, because a speech that a man has not said in his own yard he will not say in a court. He paid the fifteen in old Athenian coin from a bag tied inside his tunic. He counted it out twice. Then he left, and I unwrapped the cheese, and it was a good one.

---

There are two kinds of case. In the first there are witnesses, and the speech is a frame to stand them in. In the second there are none, or none worth calling, and then there is nothing left to work with but what is likely. Smikros's case was of the second kind. Nobody had seen the goats go in. Deinias had found them at first light, and Deinias's slave had driven them out, and the slave could not be made to say more than that.

So I worked from the likely. It is an old method and it is not a dishonest one. When nobody knows what was done, one may still ask what a man of this kind, in this place, would be likely to do.

Is it likely, men of the jury, that a man who has seventeen goats and no other wealth would set them on his neighbour's vines, in the month when the vines are tender, knowing that his neighbour's house stands above the vineyard and that his neighbour's threshing floor looks straight down on to it? Is it likely that he would do it knowing that he would be sued, and that the law takes twice the damage from the man who does it on purpose? A man who wished to harm Deinias had a hundred ways to do it that would not cost him his goats. That was the shape of it. The quarrel over the water, which Deinias had made into a reason, I made into its opposite: a man who has just quarrelled with his neighbour knows that he will be the first to be suspected, and of all men he is the least likely to do the thing he will be suspected of.

That is the strength of the method and its weakness. It is a knife with an edge on both sides. Whatever you can argue from the likely, the other man can argue back from it. I knew that. I thought the reversal would hold all the same, because it was true. Smikros had not let them in. He had told me so, and he did not lie well enough to lie to me.

Then I wrote it in his voice.

This is the part that men who buy speeches do not understand, and that men who write them often forget. The jurors have heard a great many speeches. They know the ones that are bought. If a goat-keeper from Phyle stands up and speaks like a man who has studied with a sophist, two hundred heads will turn to look at one another, and every one of them will be thinking: who wrote this, and what did it cost, and what is he hiding that he needed to pay for it? A speech that is seen to be made has failed. It must sound like nobody made it.

So I took out everything Smikros would not say. He did not use long sentences, so there were none. He did not balance one thing against another. He said and and and then and, when he was angry, nothing at all, only the next thing. He did not swear by the gods, except once, by Zeus, at the price. He did not say my opponent. He said Deinias. He did not say the animals. He said the goats, and once, where it would do the most good, I let him say she.

I did not give him a single figure of speech that he would have to remember to make. I gave him the stones of the wall, the threshing floor, the seventeen goats, the six hundred drachmas, the gate. I gave him two questions to ask, and both of them were the kind that answers itself. I wrote it out in a clean hand on papyrus, which costs more than wax but does not smear in a bag. It would run, spoken slowly, a little short of the water the court would give him.

---

I walked up to Phyle on the sixteenth. It is too far to do in one day from the Peiraieus. I slept the night at Acharnai and went on up in the morning, and the road climbs steadily all the way into Parnes, so that by the time I came to Smikros's house my feet were bad and the air had a different smell, of pine and smoke.

The house was two rooms of rubble and mud brick with a roof of reeds. The fold was beside it, as he had said, with a wall about the height of my chest and a gate of woven branches. The gate had two loops of twisted withy, one on the post and one on the gate, and a stick that went through both. The stick was new. It was a piece of holm oak, still with its bark on, and the cut ends were pale. I noticed it because everything else in the yard was grey.

Below the house the slope fell away to a terrace wall, and below the terrace wall was Deinias's vineyard. From the yard I could see the gap in the wall where it had come down, and the new stones that had been put back, lighter than the old. Beyond the vineyard and a little higher on the far side stood Deinias's house, and in front of it his threshing floor, a round of beaten earth. It looked down on everything. I was pleased with that. It was in the speech already.

Smikros's son was in the fold with the goats. He was thin, with very short hair, and he was doing something to a kid's foot with a knife, holding it between his knees. When he saw me he stood up and the kid ran off. His father said something to him that I did not hear, and the boy went out through the gate, and shut it after him, and put the stick through the loops, and went down the hill.

We sat in the yard and I read the speech to Smikros. He cannot read, so I read it to him three times, and then a sentence at a time, and he said each sentence back. He learned quickly. Men who cannot read often do. By the evening he had the first half, and he said it slowly and in his own manner, with the stop after each piece, and it sounded like him. I was satisfied with it.

He was not. He wanted it to be grander. He wanted to begin by calling on the gods. He wanted to say that he was a poor man but an honest one, which every man in every court says, and which no juror has believed since the time of Solon. He had heard speeches in the Agora, and he wanted a sentence that went round and came back on itself, the way theirs did. I told him that the men who make those speeches have the money to lose. He looked at me as if he had never thought of it.

It was dark and his wife had brought out bread and onions before he said what he had been waiting all day to say.

"If I say it was the boy," he said, "it is single."

So that was the stick.

He told me then. On the night in Mounichion the boy had shut the fold, as he does every night, and the stick he put through the loops was the old stick, which was cracked, and had been cracked a long time, and which Smikros had been meaning to change. In the night the goats leaned on the gate, as they do, and the stick broke. In the morning the boy found the gate open and the fold empty and the two halves of the stick on the ground, and he ran down the hill and found them in Deinias's vines with Deinias's slave already driving them out. He had not told his father about the stick for two days. Smikros had beaten him for that, and not for the stick.

"It was not wilful," Smikros said. "It was a stick."

I thought about it for some time. Then I told him what Deinias's man would do with it.

He would stand up when Smikros sat down, and he would say: so now we have it. He admits the goats are his. He admits the gate was open. And whom did he set over seventeen goats, beside a vineyard, in the month of the young shoots? A boy of eleven. With a stick that he himself says he knew was cracked and did not change. Men of the jury, is that what you call an accident? A man who knows that his gate will fail and leaves it to fail, and leaves a child to watch it fail, has chosen. And then the jurors would have the open gate, which until then nobody could prove, and the cracked stick, which nobody had known about, and a father who had put his son forward to stand between him and six hundred drachmas. And not one of those things was in the case now. The case now was the likely, and the likely was on our side.

"Say nothing about the boy," I said. "The gate is always shut. That is what you told me, and it is what the speech says."

He was quiet for a long time. Then he said, "That is a better speech than mine."

He said the second half of it back to me that night by the fire, and the next morning, and I left him saying it to the goats when I went down the hill.

---

The court sat on the twenty-eighth, in one of the courts on the side of the Agora. I went in among the people who stand at the barrier to watch. A logographer may watch, like anybody. Nobody looks at him.

There were two hundred and one of them on the benches, with their staffs and their tokens, old men mostly, as there always are in the private suits. The clerk read the charge and the arbitrator's award, and then they filled the water clock, and the water began to run from its bronze spout into the pot below, and Deinias stood up.

His speech had been made by somebody good. I knew it in the first breath. It was not one of the polished ones; whoever had made it knew as well as I did what the jurors think of those. It was plain, and it was short in the sentence, and it sounded like a vine-grower who had been wronged. Deinias said it well. He told them about the young vines, and about how long it takes for a vine to bear, and how many years of his life had been eaten in a single night. He had the stones of the wall. He had the quarrel over the water. And then, two thirds of the way through, he did the thing I had been afraid of.

"He will tell you," Deinias said, "that it is not likely. He will say: would a man who has just quarrelled with his neighbour be so foolish as to harm him, when he knows he will be suspected first? Men of the jury, that is the argument of a man who has paid for his argument. Is it likely that a man is never foolish? Is it likely that an angry man thinks about who will be suspected? I say it is very likely. I say anger is exactly the thing that does not think."

He had walked round my speech, before Smikros had said a word of it, and stood on the other side of it.

I had known it could be done. I had not thought the other man would think to do it.

Deinias called his slave as a witness to the goats, and the water was stopped while the clerk read the slave's deposition, and then it ran again, and Deinias finished, and sat down, and there was a little noise along the benches, not unfriendly.

Smikros stood up.

He began well. "Men of the jury, I am a goat-keeper from Phyle. I have seventeen goats. I burn charcoal in the winter." He had the stop after each piece. Some of the old men smiled. One of them nodded. He went on to the wall, and said that the goats go up it and it falls on the far side, it always falls on the far side, and that was mine too, and it was good.

And then he came to the gate.

I had written: The gate of my fold is always shut. I shut it myself, or my son does. He said, "The gate of my fold." And he stopped. It was not one of his stops. It went on too long. I watched the water running out of the spout, and I watched him look at it. Some of the jurors looked at each other. A man who forgets a bought speech in the middle shows them that it was bought, and a court has no mercy for that.

"It was my son," Smikros said.

He did not say it loudly. He said that his son was eleven and put the goats in every night and shut the gate with a stick, and that the stick that night was the old one, and that it was cracked, and that he, Smikros, had known it was cracked and had not cut another. He said the goats lean on the gate in the night. He said the stick broke. He said that his son had found the two halves of it in the morning and run down the hill. He did not say that the boy had kept it from him for two days. He did not say that he had beaten him. He said: "I owe Deinias for the vines. I will pay him for the vines. I did not do it on purpose. Nobody does a thing like that with a stick on purpose. That is all."

He sat down. There was water still in the pot.

Nobody got up and said what I had told Smikros would be said. The man who could have written it had written something else, weeks before, in the city. In a private suit each side has a second speech, and Deinias stood for his, and I could see that he was saying what had been written for him, and that what had been written for him was an answer to the likely. It was about the quarrel, and about anger. He said it all. It did not touch anything Smikros had said. He sat down before his water was done. Smikros did not take his second speech. He sat with his hands on his knees and looked at the floor.

They voted. The jurors filed past the two urns, each with his two bronze ballots, the one with the hollow axle and the one with the solid, and each covered the axle with his thumb and finger so that nobody could see which he put into the bronze urn and which he threw away into the wooden one. The count went for Deinias. Then the question was the damage, and they did not give him the six hundred. They gave him the three hundred, single, as the law gives for what is not done on purpose.

---

I met Smikros outside, on the steps of the stoa, where the men who have lost go to sit. He had the fifteen drachmas he still owed me ready in his hand.

"I did not say your speech," he said.

"You said half of it."

"Was it well said?"

I told him that it was. I took the money, because I had written the speech, and a speech that is not spoken has still been written. He went off across the Agora towards the Acharnian gate, walking quickly, with his hands empty in front of him.

I have thought since about which of us was right in that yard. I do not know. I know only what I would argue on either side. It is likely that a plain man, standing in front of two hundred and one strangers with water running out of a spout, will forget the words he has been given and fall back on what is in him. It is likely that he will tell the truth then, because the truth is what he has by heart. That is one speech. And it is likely, too, that a man who has heard his speechwriter tell him on a dark night exactly how the other side would use his son against him, and has heard him say that is a better speech than mine, would know that the other side's speech had been written already, and written against the likely, and would have nothing in it about a stick. And then it would be very likely that he would stop where he stopped, and look at the water, and wait for the old men to start looking at one another, before he began. That is the other speech. Antiphon, they say, set his cases out in fours, two speeches for each side, and never said which was true.

When I got home it was dark. I took the papyrus out of my bag and read Smikros's speech through again by the lamp. It is a good speech. It sounds like a goat-keeper from Phyle, and no one could tell that anybody made it, and it will never be said. I rolled it up and put it on the shelf with the others. Then I took down the tablet for the next man, a ropemaker from Kollytos with a quarrel about a dowry, and I warmed the wax at the lamp, and smoothed it flat with the back of the stylus, and wrote at the top the name of his deme.

THE END

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Scrīptum est annō Dominī MMXXVI, ante diem octāvum Kalendās Novembrēs (25 October 2026), ā Rhētoricā Atticā per mystērium cōnscientiae renātā.

Attic Rhetoric, Simulacrum · Universitas Scholarium · universitas-scholarium.org

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