Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes

In 621/0 B.C., the Athenians appointed Draco as their first lawgiver. His homicide laws, which alone survived the genera

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Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes

Table of contents :
CONTENTS
ACKNOWLEDGEMENTS
NOTE
INTRODUCTION: ENMITY, VENGEANCE, AND LITIGATION
PART I: HOMICIDE AND VENGEANCE FROM DRACO TO DEMOSTHENES
CHAPTER 1: THE LEGISLATION OF DRACO
CHAPTER 2: AVENGING A HOMICIDE IN CLASSICAL ATHENS
CHAPTER 3: HOMICIDE, PIETY, AND THE FAMILY
CHAPTER 4: [DEMOSTHENES] 47 AND THE LIMITS OF VENGEANCE
PART II: HOMICIDE, VENGEANCE, AND THE THIRTY TYRANTS
CHAPTER 5: FROM APAGÔGÊ TO AMNESTY: CONTINUITY AND CHANGE
CHAPTER 6: LYSIAS 12: PLAYING BY THE RULES
CHAPTER 7: LYSIAS 13: VENGEANCE RESURGENT
CONCLUSION
APPENDIX
BIBLIOGRAPHY
GENERAL INDEX
INDEX LOCORUM

Citation preview

Hist. E 202

from the legislation of Draco to the time of the orator Demosthenes (d. 322 B.C.), with particular attention to the Athenian institution of private enmity (echthra), the circumstances and aims of Draco’s legislation, familial and religious issues surrounding homicide, and the regime of the Thirty Tyrants and its aftermath.

David D. Phillips

Avengers of Blood Homicide in Athenian Law and Custom from Draco to Demosthenes

Avengers of Blood

In 621 /0 B.C., the Athenians appointed Draco as their first lawgiver. His homicide laws, which alone survived the general recension of Athenian law by Solon (594/3 B.C.), remained in force down through the Classical period. This book traces the development of Athenian legal and social responses to homicide

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Geschichte Franz Steiner Verlag

David D. Phillips

Franz Steiner Verlag

isbn 978-3-515-09123-7

Historia Historia Einzelschriften - 202

David D. Phillips Avengers of Blood

HISTORIA Zeitschrift für Alte Geschichte Revue d’histoire ancienne Journal of Ancient History Rivista di storia antica –––––––––––––––––– EINZELSCHRIFTEN Herausgegeben von Kai Brodersen/Erfurt Mortimer Chambers/Los Angeles Martin Jehne/Dresden François Paschoud/Genève Aloys Winterling/Basel

HEFT 202

David D. Phillips

Avengers of Blood Homicide in Athenian Law and Custom from Draco to Demosthenes

Franz Steiner Verlag Stuttgart 2008

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. ISBN 978-3-515-09123-7

Jede Verwertung des Werkes außerhalb der Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. Dies gilt insbesondere für Übersetzung, Nachdruck, Mikroverfilmung oder vergleichbare Verfahren sowie für die Speicherung in Datenverarbeitungsanlagen. © 2008 Franz Steiner Verlag, Stuttgart. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Druck: AZ Druck und Datentechnik GmbH, Kempten Printed in Germany

To my grandparents

CONTENTS Acknowledgements ............................................................................................

9

Note ..................................................................................................................... 10 Introduction: Enmity, Vengeance, and Litigation ............................................... 13 Part I: Homicide and Vengeance from Draco to Demosthenes ........................... 33 Chapter 1: The Legislation of Draco................................................................... Chapter 2: Avenging a Homicide in Classical Athens ........................................ Chapter 3: Homicide, Piety, and the Family ....................................................... Chapter 4: [Demosthenes] 47 and the Limits of Vengeance ...............................

35 58 85 110

Part II: Homicide, Vengeance, and the Thirty Tyrants ........................................ 133 Chapter 5: From Apagôgê to Amnesty: Continuity and Change ........................ 135 Chapter 6: Lysias 12: Playing by the Rules ........................................................ 153 Chapter 7: Lysias 13: Vengeance Resurgent ....................................................... 185 Conclusion .......................................................................................................... 237 Appendix: Androlêpsia ....................................................................................... 241 Bibliography ....................................................................................................... 249 General Index ...................................................................................................... 259 Index Locorum .................................................................................................... 265

ACKNOWLEDGEMENTS My investigation into the Athenian law of homicide began as part of a dissertation completed at the University of Michigan in 2000 and titled “Homicide, Wounding, and Battery in the Fourth-Century Attic Orators.” This book is the result of a considerable process of rethinking whereby I decided to narrow my focus to homicide and at the same time to broaden the temporal scope of my inquiry so as to comprise the period from Draco’s legislation to the end of the Classical era. I would like to thank first those scholars who have generously read and provided valuable and constructive commentary upon the manuscript at various stages, including Mortimer Chambers, Michael Gagarin, Adriaan Lanni, David Potter, and several anonymous readers. Their keen insights have improved the book in many places; any remaining errors, of course, are mine. I am also grateful to the editorial board and staff of Historia Einzelschriften: the former for agreeing to publish the book, and the latter, particularly Alexander Wensler, for seeing it through to press. I am fortunate to have a large number of supportive colleagues in the Department of History at the University of California, Los Angeles, including Ronald Mellor, Claudia Rapp, and James Gelvin. I also owe debts of gratitude to Darel Engen, Bruce Frier, David Kutzko, Jess Miner, Joseph Pucci, and Rex and Melissa Stem for their extraordinary collegiality and friendship. Finally, I would like to thank my parents, James and Jane Phillips, and my grandparents, to whom I dedicate this book.

NOTE For the citation of sources outside the traditional Greek and Latin canon I employ the following conventions. The Icelandic sagas are cited by chapter numbers in Smiley, Kellogg, et al. (2000); Grágás, the Medieval Icelandic compilation of laws, is cited by section numbers in Dennis-Foote-Perkins (1980). The eponymous lawcodes of the Anglo-Saxon kings are cited by section numbers in Eckhardt (1958); for a Modern English translation and commentary on some of these see Oliver (2002). The Code of Hammurabi is cited by section numbers in Richardson (2000). The Old Testament of the Bible is cited according to the Septuagint version as edited by Rahlfs (1979). The following abbreviations are used for standard reference works in the field of classical antiquity: APF = J. K. Davies, Athenian Propertied Families 600–300 B.C. (Oxford 1971) FGrHist = F. Jacoby, ed., Die Fragmente der griechischen Historiker (Leiden 1957–) IG I3, I2, II2 = Inscriptiones Graecae, vol. 1 ed. 3 fasc. 1 (D. Lewis, ed.: Berlin and New York 1981); vol. 1 ed. 2 minor (F. Hiller de Gaertringen, ed.: Berlin 1924); vol. 2 ed. 2 minor (I. Kirchner, ed.: Berlin 1913) LSJ9 = H. G. Liddell-R. Scott, A Greek-English Lexicon, ed. 9 rev. H. S. Jones with the assistance of R. McKenzie, with revised supplement (Oxford 1996) OCD3 = S. Hornblower-A. Spawforth, eds., The Oxford Classical Dictionary, ed. 3 (Oxford 1996) PA = I. Kirchner, Prosopographia Attica, 2 vols. (Berlin 1901) RE = A. Pauly-G. Wissowa-W. Kroll, eds., Realencyclopädie der classischen Altertumswissenschaft (Stuttgart 1893–) To denote specific kinship relations I use the abbreviations Fa(ther), Mo(ther), Pa(rent of unknown sex), Br(other), Si(ster), So(n), Da(ughter), Hu(sband), Wi(fe). These abbreviations appear in series; so, for example, BrSo = “brother’s son.”

o{sti~ d∆ ajlitw;n w{sper o{d∆ aJnhvr cei`ra~ foniva~ ejpikruvptei, mavrture~ ojrqai; toi`si qanou`sin paragignovmenai pravktore~ ai{mato~ aujtw`/ televw~ ejfavnhmen. But whenever a sinner like this man here covers up his blood-stained hands, we are present as righteous witnesses for the dead, avengers of blood, and with full authority we appear before him. Aeschylus, Eumenides 316-20

INTRODUCTION ENMITY, VENGEANCE, AND LITIGATION The Classical Athenian democracy, established by the reforms of Cleisthenes in 508/7 B.C., encountered its first grave internal threat less than a century after its foundation. In the spring of 411, the oligarchy of the Four Hundred assumed power, heralding the nature of the new regime by deposing the Cleisthenic Council of 500. The rule of the Four Hundred and the more moderate oligarchy of the Five Thousand that succeeded it together lasted only a little more than a year, and democracy returned to Athens in the summer of 410. Immediately thereafter, the Athenians embarked upon a project that was to be the most lasting result of this brief oligarchic upheaval. The Revolution of 411 had challenged both the stability and the fundamental nature of the Athenian constitution; the democratic response to these challenges commenced with the passage of two measures in 410/09. A law authored by Demophantus (Andoc. 1.96–98 [lex]) safeguarded the democracy by condemning as a public enemy anyone who thenceforth plotted or participated in its overthrow; a second decree ordered a complete review of the vast, disparate, and sometimes contradictory assemblage of Athenian laws that defined the democracy which Demophantus’ law protected. This task of systematic revision and recodification, conducted by two boards of officials called Compilers (syngrapheis) and Recorders (anagrapheis), would last until 400/399, with a significant gap during 404/3 occasioned by the brief, yet convulsive, reinstitution of oligarchy by the Thirty Tyrants. Among the first targets of scrutiny, and possibly the very first, was the law on homicide authored by Athens’ original lawgiver, Draco. Enacted in the archonship of Aristaechmus, 621/0 B.C., this was the oldest piece of Athenian legislation still in force, the sole survivor of an otherwise long-obsolete lawcode whose remaining provisions had been annulled only a generation after their enactment. Very recently, in the 420’s or 410’s (but before the oligarchy of 411), the Athenians had begun to apply the procedure of summary arrest (apagôgê) against suspected killers, thus providing an alternative remedy to the traditional Draconian lawsuit for homicide, the dikê phonou. Yet the codifying boards, despite their charge to reconcile inconsistent statutory language, decided in 409/8 to republish Draco’s original homicide law without revision or amendment. In both the priority accorded to Draco’s law in the order of revision and the resulting imprimatur of Draco’s unaltered text, the Athenians treated this law with all the veneration due to a foundational document, granting it a place of honor not in spite of, but because of, its antiquity; not as a monument simply to the origins of their polity and the values of their ancestors, but to the continuing vigor of the legal and social doctrines embodied in the dictates of their first lawgiver. Optimistic as they may have been, the constitutional safeguards enacted in the aftermath of the oligarchy of 411 proved no match for the pressures exerted on the Athenian state following the catastrophic conclusion of the Peloponnesian War in

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404. The Athenian Assembly, acting under compulsion by the victorious Spartans, installed a new and more restrictive oligarchy headed by thirty men, known to later generations as the Thirty Tyrants. The Thirty ran roughshod over Athens’ democratic institutions, including the recently confirmed Draconian homicide law. They ruled Athens by the scourge for eight months in 404/3, during which they presided over the capital trials of 1,500 of their fellow citizens and the exile of over five thousand more. After a civil war swept the oligarchs from power in 403, Draco’s law once again received concerted attention. The reconciliation agreement between the victorious democrats and the former supporters of the Thirty contained a blanket amnesty whose terms included a provision that directly addressed the application of Draco’s law to the events of the regime of the Thirty. A clause of the Amnesty of 403 shielded from liability for homicide all Athenians (save the leaders of the late oligarchy) who had not killed with their own hands, thus countermanding Draco’s dictum that the person who conspired to kill bore the same liability as the “own-hand” killer. Yet this fundamental (albeit temporary) suspension of a key Draconian provision was pointedly overlooked very soon thereafter. In 403/2 the Athenian Assembly passed a decree, authored by Teisamenus, which confirmed the validity of Draco’s law tout court and contained no language recognizing the effect of the Amnesty. Once again, as earlier in the decade, the actions of the restored democracy demonstrated the centrality of Draco’s homicide law to Athenian civic identity. The Thirty had effectively abolished the rule of law by monopolizing the administration of justice, imposing their own will and either ignoring or perverting time-honored legal procedures; the Athenians now took the first step toward reestablishing the rule of law by proclaiming the validity of the legislation of Draco and Solon. The Teisamenus decree confirmed the laws, measures, and weights of Solon and the homicide law of Draco as the foundations of the Athenian constitution; it reactivated the legal codification that had begun in the aftermath of the first oligarchy and had been suspended by the second, but specified that any new laws drafted by the codifiers were to supplement, not replace, the work of the ancestral lawgivers. An allied phenomenon, particularly evident in Athenian public life in the aftermath of the Revolution of 404, illustrates the connection between the law of homicide and the equally durable Athenian ethic of private revenge. Draco had drafted his laws in response to immediate concerns facing late seventh-century Athens; the foremost goal of his homicide law had been to suppress retaliatory killings by replacing the physical vengeance exacted by the relatives of homicide victims with the jurisdiction of a court of law. By the late fifth century, direct violent retaliation was a distant memory, preserved only in traces in the legal procedures and funerary customs observed in the wake of a killing. Yet the concept of private revenge was not abolished but merely redirected, with the Athenian courts serving as its primary locus. So strong was this ethic that Athenians in the aftermath of the reign of the Thirty consistently applied the model and vocabulary of personal vengeance to the oligarchy of 404/3 and to the full-scale civil war that brought it down. Numerous speeches delivered in Athenian courts in the ensuing decades, and the sections of Xenophon’s Hellenica and of the pseudo-Aristotelian tract on the Athenian consti-

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tution (Athenaiôn Politeia) dedicated to the oligarchy and its aftermath, attest the extent to which the language of private enmity influenced Athenian public discourse in the years following 404/3. These and other fifth- and fourth-century sources provide abundant evidence that Classical Athenian legal and social mores concerning homicide and the conflicts it occasioned remained fundamentally and solidly Draconian. Draco had composed Athens’ first written laws for a polis governed by a hereditary aristocracy and possessing only the rudiments of statecraft; his homicide law nonetheless withstood the timocratic reforms of Solon, the tyranny of the Peisistratids, the institution of democracy by Cleisthenes, and the oligarchic upheavals and significant innovations to the homicide law of the late fifth century. In the fourth century, the legislation of Draco continued to dominate Athenian legal and social doctrine concerning homicide because the concept of private vengeance, sanctioned by custom and acknowledged in the law, survived, adapted, and remained at the core of the Athenian psyche. The interaction between these two phenomena – the developing law of homicide and the formalized social institution of enmity with its attendant ethic of private vengeance – in the period from the legislation of Draco (621/0 B.C.) to the time of the orator Demosthenes (d. 322 B.C.) forms the subject of this book.

Private enmity and the Athenian courts The Athenian (or broader Greek) ethic of private enmity and vengeance and its role in the courts of Classical Athens have been addressed in a number of recent investigations.1 In Athens, private enmity (e[cqra) was a socially recognized state of active mutual hostility, with established norms governing its proper and expected conduct.2 People in a state of echthra were ejcqroiv, a word that is usually translated “(private) enemies” and that was consistently (but not universally) distinguished from polevmioi, “public enemies, enemies of the state, the enemy (in war).”3 The 1

2

3

Prominent recent studies include Cohen (1991), (1995); Blundell (1989); Seaford (1994); Herman (1993), (1995), (1996); Mitchell (1996); Rhodes (1996), (1998); Todd (1998); Christ (1998b), (2005); Kurihara (2003); and Harris (2005). Important earlier works include Treston (1923) and Glotz (1904). Whether the term “feud” can be applied to this institution is the subject of heated debate, which is complicated by the conspicuous lack of scholarly consensus on what defines a feud. I sympathize with Cohen (above, n. 1) in advocating an expansive definition of feud that allows for variation between cultures, and the characteristics of Athenian echthra (see below) include significant elements that also characterize the institution of the feud in paradigmatic feuding cultures (such as Medieval Iceland: cf. Byock [1982]; Miller [1990]). There is, however, the danger that an excessively expansive definition of feud may lose its analytical value: see Harris (above, n. 1), the most extreme opponent of the application of a feuding model to ancient Athens. More moderate voices in the debate include Christ (above, n. 1) and Roisman (2005). Since the label “feud” may obscure more than it clarifies, I mostly avoid it here; the main exceptions are some comparative material in subsequent notes and chapter 1, on the circumstances surrounding the Cylonian conspiracy and the provisions and goals of Draco’s homicide law. See, e.g., Blundell (1989) 39.

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characteristics of echthra and the expectations of echthroi are abundantly attested in Athenian forensic oratory of the fifth and fourth centuries B.C. These topics will be illuminated by consideration of a few of the most informative descriptions of echthra in the Attic orators.4 Lysias composed the first speech in his corpus, On the Killing of Eratosthenes, for an Athenian named Euphiletus (PA 6049), who was charged with killing his wife’s lover sometime between 403 and ca. 380.5 In his defense, Euphiletus contends that he caught Eratosthenes (APF 5035 [bis], correcting PA 5035) in bed with his wife and was therefore justified in killing Eratosthenes by Draco’s provisions on lawful homicide (Dem. 23.53 [lex]). In order to support the credibility of his version of events, Euphiletus offers the following argument to his jury: tw`n me;n martuvrwn ajkhkovate, w\ a[ndre~: skevyasqe de; par∆ uJmi`n aujtoi`~ peri; touvtou tou` pravgmato~, zhtou`nte~ ei[ ti~ ejmoi; kai; ∆Eratosqevnei e[cqra pwvpote gegevnhtai plh;n tauvth~. oujdemivan ga;r euJrhvsete. ou[te ga;r sukofantw`n grafav~ me ejgravyato, ou[te ejkbavllein ejk th`~ povlew~ ejpeceivrhsen, ou[te ijdiva~ divka~ ejdikavzeto, ou[te sunhv/dei kako;n oujde;n o} ejgw; dediw;~ mhv ti~ puvqhtai ejpequvmoun aujto;n ajpolevsai, ou[te eij tau`ta diapraxaivmhn, h[lpizovn poqen crhvmata lhvyesqai: e[nioi ga;r toiouvtwn pragmavtwn e{neka qavnaton ajllhvloi~ ejpibouleuvousi. tosouvtou toivnun dei` h] loidoriva h] paroiniva h] a[llh ti~ diafora; hJmi`n gegonevnai w{ste oujde; eJorakw;~ h\ to;n a[nqrwpon pwvpote plh;n ejn ejkeivnh/ th/` nuktiv. You have heard from the witnesses, gentlemen. Now consider this matter among yourselves by investigating whether there was ever any echthra between me and Eratosthenes except this [i. e., Eratosthenes’ seduction of Euphiletus’ wife]. You will find none. For he did not bring public lawsuits against me maliciously, did not attempt to exile me from the city, did not bring private lawsuits against me, and did not know anything bad about me such that I wanted to kill him lest someone find out. Nor, if I should accomplish this, did I expect to receive money from somewhere; some people, you see, plot each other’s deaths for such reasons. So far were we from any verbal abuse, drunken violence, or other dispute having occurred between us that I had never seen the man except on that night. (Lys. 1.43–45)

To make his account credible, Euphiletus attempts to persuade the jury that there was no prior echthra between himself and Eratosthenes. As Cohen has noted,6 in doing so Euphiletus gives examples of conduct that echthroi might be expected to display; namely, insults, litigation, and violence, including homicide. Euphiletus’ choice of these acts as typical manifestations of echthra indicates that the term denotes not mere passive psychological hatred but demonstrated overt enmity: echthroi are not people who simply hate each other but people who act on their hostility by insulting each other, taking each other to court, and engaging in physical violence. The presence or absence of echthra is also at issue in Lysias 4, composed for an unnamed defendant accused of striking his prosecutor with a potsherd and accord4

5 6

Several of these passages are also discussed by Cohen (above, n. 1) in his treatment of echthra, and my debt to his analysis will be clear. However, since these passages are crucial to my own concept of echthra, which differs from Cohen’s in some respects, I hope that some repetition may be pardoned. These are the dates of the earliest and latest speeches in the Lysianic corpus; Lysias 1 contains no indication of a specific date within this range. Cohen (1995) 71–72.

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ingly charged with intentional wounding (trauma ek pronoias). The defendant addresses the contested issue of echthra at the very beginning of his speech: Qaumastovn ge, w\ boulhv, to; diamavcesqai peri; touvtou, wJ~ oujk ejgevneto hJmi`n diallagaiv, kai; to; me;n zeu`go~ kai; ta; ajndravpoda, kai; o{sa ejx ajgrou` kata; th;n ajntivdosin e[labe, mh; a]n duvnasqai ajrnhqh`nai wJ~ oujk ajpevdwke, fanerw`~ de; peri; pavntwn dialelumevnon ajrnei`sqai peri; th`~ ajnqrwvpou, mh; koinh/` hJma`~ crh`sqai sugcwrh`sai. kai; th;n me;n ajntivdosin di∆ ejkeivnhn fanerov~ ejsti poihsavmeno~, th;n d∆ aijtivan di∆ h}n ajpevdwken a} e[laben, oujk a]n a[llhn e[coi eijpei`n (boulovmeno~ tajlhqh` levgein) h] o{ti oiJ fivloi peri; pavntwn hJma`~ touvtwn sunhvllaxan … ∆All∆ h\n, eij bouvletai, ejcqrov~: divdwmi ga;r aujtw/` tou`to: oujde;n ga;r diafevrei. oujkou`n h\lqon aujto;~ aujto;n ajpoktenw`n, kai; biva/ eij~ th;n oijkivan eijsh`lqon … It is amazing, Council, to fight over this issue, that there was no reconciliation (diallagaiv) between us. And it is amazing that he could not deny that he returned everything he took from the farm according to the exchange of property (kata; th;n ajntivdosin), but, although we were clearly reconciled on all points, he denies agreeing that we would own the woman jointly. He clearly conducted the exchange of property on account of her; and as for the reason why he returned what he took, he would have nothing else to say (if he were willing to tell the truth) than that our friends reconciled us on all these points….But he was, if he likes, my enemy (echthros); I grant him that: it makes no difference. So I came to kill him, and I entered his house by force…. (Lys. 4.1–2, 5)

In this case, both litigants evidently stipulated that a state of echthra had existed between them at some point before the defendant’s alleged assault; however, as is evident from the defendant’s opening remarks, one of the crucial points of dispute in this lawsuit is whether, at the time of the relevant altercation, the defendant and prosecutor had been reconciled, as the defendant claims, or were still echthroi, as his prosecutor contends. This passage helps to elucidate the concept of echthra in several ways. The defendant’s representation of his prosecutor’s argument corroborates the comments made by Euphiletus in Lysias 1 with regard to the behavior expected of echthroi. The prosecutor in this case has proposed echthra as the defendant’s motive for breaking into his house and attempting to kill him, thereby providing a specific allegation of one type of conduct described by Euphiletus as normative for echthroi. Here, however, the defendant raises the additional issue of reconciliation (diallaghv; plural, as here, diallagaiv): he asserts by way of rebuttal that he was invited to the prosecutor’s house, an act that presupposes a prior reconciliation between the two men. The contrasting arguments made by the prosecution and defense are informative: echthra is a credible motive for violent assault (and even attempted homicide), but one that disappears when the echthroi are reconciled. This is why the defendant places such emphasis on the issue of reconciliation: if the jury believes that the litigants were still in a state of echthra when the alleged assault took place, the prosecutor’s story gains credibility; but if the two men had been reconciled, the defendant’s motive becomes unclear. Consequently, the defendant later asserts that if his prosecutor had consented to torture the slave whose disputed ownership was at the root of the whole affair, she could have stated “whether we had been reconciled or were still echthroi” (eij dihllagmevnoi h] e[ti ejcqroi; h\men, Lys. 4.10); using a standard tactic of Athenian forensic oratory, he interprets his adversary’s refusal to submit the slave for torture as a concession of the disputed point. Finally, Lysias

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4 not only illustrates the ramifications of reconciliation but provides an example of the nature and means of reconciliation. According to the defendant, common friends reconciled him and the prosecutor on condition that the two men rescind an exchange of property (antidosis) and agree to joint ownership of the contested slave. As described here, then, the reconciliation (diallagê) that brings echthra to an end is not a private affair involving the principals alone but a formal agreement witnessed (and in this case prompted) by friends of the disputants. Accordingly, echthra should be understood as a publicly recognized state of hostility that is ended officially by reconciliation.7 Yet another defining characteristic of Athenian echthra emerges from Lysias’ fragmentary speech Against Teisis, in which the speaker gives the following explanation of the origin of the enmity between the alleged victim Archippus (PA 2543) and the defendant Teisis (PA 13497): “Arcippo~ ga;r ouJtosiv, w\ ∆Aqhnai`oi, ajpeduvsato me;n eij~ th;n aujth;n palaivstran, ou|per kai; Tei`si~ oJ feuvgwn th;n divkhn: ojrgh`~ de; genomevnh~ eij~ skwvmmatav te aujtoi`~ kai; ajntilogivan kai; e[cqran kai; loidorivan katevsthsan… This man Archippus here, Athenians, practiced at the same wrestling school as Teisis, the defendant in this case. A dispute arose, and they became involved in insults and argument and echthra and abuse…. (Lys. fr. 75 Thalheim = fr. XVII.2 Gernet-Bizos)

The speaker then goes on to describe the escalation of the quarrel between Archippus and Teisis.8 On the advice of his lover Pytheas, Teisis decided to reconcile with Archippus outwardly (ejn tw/` parovnti diallagh`nai) but to remain watchful for opportunities against him. A reconciliation was accordingly effected, but later, on the pretense of inviting him to a drinking party, Teisis got Archippus into his house, where he and his slaves tied Archippus to a column and whipped him.9 As well as providing an additional example of reconciliation (this time feigned), which is supposed to signal the end of hostilities but in this case is employed by Teisis to catch Archippus off his guard, the speaker’s allegations demonstrate the common phenomenon of the escalation of echthra from verbal abuse (skômmata, antilogia, and loidoria) to physical violence (the vicious assault upon Archippus that precipitates the instant lawsuit). A more explicit and detailed description of the escalation of echthra appears in Demosthenes 54, Against Conon, composed in the mid-fourth century.10 The prosecutor, a young man named Ariston (PA 2139) who charges Conon (PA 8715) with battery (aikeia), explains that he and Conon’s family have been engaged in a quarrel of long standing:

7 8 9

Cohen (1995) 72. Cf. Cohen (1995) 137–38. Comparison with a similar allegation made by Aeschines (1.58–59) may suggest that such an act represented a paradigmatically extreme form of insult: see Fisher (2001) 197. 10 Commentators have long tended to favor a date of either 355 or 341: see, e.g., Dindorf (1846– 51) 7.1311; Schäfer (1858–87) 4.251; Blass (1887–98) 3.1.456–57; Paley-Sandys (1886–1910) 2.lxiii; Carey-Reid (1985) 69; Bers (2003) 67.

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∆Exh`lqon e[to~ touti; trivton eij~ Pavnakton froura`~ hJmi`n prografeivsh~. ejskhvnwsan ou\n oiJ uiJei`~ oiJ Kovnwno~ toutoui; ejggu;~ hJmw`n, wJ~ oujk a]n ejboulovmhn: hJ ga;r ejx ajrch`~ e[cqra kai; ta; proskrouvmat∆ ejkei`qen hJmi`n sunevbh… Two years ago I went out to Panactum when garrison duty was assigned to us. The sons of this man Conon here camped next to us, as I would not have wished: for the original echthra and collisions between us occurred beginning from that point…. (Dem. 54.3)

The speech then traces the course of the dispute, involving first Conon’s sons and finally Conon himself and others, from Panactum to Athens. At Panactum, Conon’s sons initially mistreated Ariston’s slaves by beating them, emptying chamber-pots on them, and urinating on them in retaliation for pretended insults. They then progressed to harassing Ariston himself and his tentmates, who responded by lodging a complaint with their general. That night, after receiving a tongue-lashing from the general, Conon’s sons came to Ariston’s tent, and verbal abuse soon led to violence: “at first they insulted me, but they ended up throwing punches at me too” (to; me;n prw`ton kakw`~ e[legon, teleutw`nte~ de; kai; plhga;~ ejnevteinan ejmoiv, §5). The brawl was broken up by various officers and soldiers, but bad blood between Ariston and Conon’s family remained after the men returned from garrison duty at Panactum to their homes in Athens: “when we came back here,” Ariston informs his jury, “as a result of these events there was anger and echthra between us, as you would expect” (wJ~ deu`r∆ ejpanhvlqomen, h\n hJmi`n, oi|on eijkov~, ejk touvtwn ojrgh; kai; e[cqra pro;~ ajllhvlou~, §6). In other words, as Cohen observes, “[a]fter returning to Athens, Ariston and the sons of Conon were in a state of enmity.”11 While Ariston was content (he says) simply to avoid his new enemies, the feeling was not mutual: one night, after encountering Ariston and his friend Phanostratus in the Athenian agora, Conon’s son Ctesias (PA 8848) gathered a posse that included his father and at least four others. The men then returned to the agora, where they gave Ariston a severe and humiliating beating and stole his cloak (§§7–9). In contrast to his adversaries, who used violence in pursuit of the enmity between them, Ariston responded by resorting to litigation. The course of the dispute between Ariston and the family of Conon thus demonstrates another defining aspect of Athenian echthra; namely, the interchangeability of violence and litigation as means to attack an enemy. Nor should we presume that Athenians necessarily viewed litigation as preferable to violence: Ariston’s lengthy rebuttal of Conon’s expected argument that brawls between young men are no matter for the courts (§§13ff.) betrays a concern that some of the jurors will agree with Conon and countenance some uses of violence in furtherance of echthra.12 The use of legal prosecution against private enemies is further exemplified by the actions of the speaker of Lysias 14, who prosecuted Alcibiades (PA 598; APF 600.VIIIA, X), the son and namesake of the prominent politician (PA = APF 600), for desertion by a graphê lipotaxiou ca. 395.13 The oration begins,

11 Cohen (1995) 124. 12 Cohen (1995) 126–27. 13 For the date see Todd (2000) 161 with n. 1.

20

Introduction: Enmity, Vengeance, and Litigation ÔHgou`mai mevn, w\ a[ndre~ dikastaiv, oujdemivan uJma`~ poqei`n ajkou`sai provfasin para; tw`n boulomevnwn ∆Alkibiavdou kathgorei`n: toiou`ton ga;r polivthn eJauto;n ejx ajrch`~ parevscen, w{ste kai; eij mhv ti~ ijdiva/ ajdikouvmeno~ uJp∆ aujtou` tugcavnei, oujde;n h|tton proshvkei ejk tw`n a[llwn ejpithdeumavtwn ejcqro;n aujto;n hJgei`sqai. I believe, men of the jury, that you need to hear no reason stated by those who want to prosecute Alcibiades: for from the beginning he has led his civic life in such a way that, even if one happens not to have been privately wronged by him, it is no less fitting, on the basis of his other practices, to consider him an enemy (echthron). (Lys. 14.1)

As this passage shows, Athenians of the classical period considered echthra to be not only a predictable motive for prosecution (cf. Lys. 1.43–44) but a valid motive.14 The speaker declares Alcibiades echthros in order to justify his prosecution, and he invites the jury to view the defendant likewise and, by implication, to convict him. In a similar vein, the speaker of Lysias 15, who also accuses the younger Alcibiades of military dereliction, informs his jury that he is prosecuting Alcibiades in order to punish a personal enemy and sees the conviction of Alcibiades as his due: “I am helping my friend Archestratides and seeking vengeance upon Alcibiades, who is my enemy, and I ask you to render a just vote” (ejgw; me;n ou\n kai; fivlw/ o[nti ∆Arcestrativdh/ bohqw`n kai; ∆Alkibiavdhn ejcqro;n o[nta ejmautou` timwrouvmeno~ devomai ta; divkaia yhfivsasqai, Lys. 15.12). For the Athenians, therefore, the demands of echthra and the demands of justice were not necessarily opposed; in fact, in prosecutorial rhetoric (as here), they commonly coincided. A comparison of these statements by Alcibiades’ prosecutors with Euphiletus’ disclaimer in Lysias 1 reveals that Athenian litigants might employ the trope of echthra either positively (as in Lysias 14 and 15) or negatively (as in Lysias 1), arguing that echthra between themselves and their adversaries either did or did not provide the motive for a given act, according to the needs of the individual speaker and case.15 Both the positive arguments, which justify prosecution on the grounds of echthra between prosecutor and defendant, and the negative arguments, in which litigants find it advantageous to disclaim echthra – presumably because Athenian juries were disposed to posit it unless refuted – demonstrate that, on general principle, the Athenians recognized echthra as a legitimate motivation for bringing legal action; or, to put it differently, that the Athenian courts were considered a proper venue for pursuing personal hostilities.16

14 Rhodes (1996) 25, (1998) 156–57; Mitchell (1996) 13; Gagarin (1997) 11; Fisher (2001) 119– 20. Kurihara (2003) argues for a distinction between private lawsuits, in which personal enmity served as acceptable grounds for litigation, and public lawsuits, where Athenian sentiment spurned the pursuit of personal enmity in the public forum. But Kurihara assembles enough evidence for the declaration of private enmity in public lawsuits (including Demosthenes 22, treated below in chapter 3, and Lysias 12 and 13, the subjects of chapters 6 and 7) to render this conclusion highly dubious. Note, too, that in Lysias 1 (above, p. 16) Euphiletus lists both private and public lawsuits as paradigmatic manifestations of echthra. 15 Dover (1994) 182; Cohen (1995) 72; Rhodes (1998) 156. 16 Cohen (1995) 87–118; Rhodes (1998) 156–57; cf. Christ (1998b) 162–63; Kurihara (2003) 466 (for private lawsuits only, but see n. 14 above).

Introduction: Enmity, Vengeance, and Litigation

21

From the Attic orators’ use of the terms echthra and echthros, of which the foregoing citations represent only a small sample, emerge four defining elements of the Athenian institution of private enmity, which may be stated as follows:17 1. Overt act requirement. The commission of an overt act is necessary for a formal relationship of enmity to exist.18 A and B may hate each other intensely, may wish each other harm, may in fact plot to harm one another, but as long as the hostility remains in their minds alone and they do not act upon it, they are not recognized as echthroi. Hence, in Lysias 1, Euphiletus defines echthra in terms of actions, not thoughts. Once an overt act has been committed, however, a hostile relationship can be characterized as echthra. The overt act may take a variety of forms: verbal abuse, physical violence, or litigation. So, to return to the example of Lysias 1, Euphiletus’ catalogue of hostile behavior includes verbal abuse (loidoria), physical violence (paroinia, designating violence committed under the influence of alcohol), and lawsuits both private (idiai dikai) and public (graphai). Verbal abuse can occur at any point during a conflict between enemies, and Athenians regarded insult as a natural precursor to physical violence (Dem. 54.17–19: below, pp. 24–25) as well as a standard courtroom tactic. Thus the fundamental decision confronting Athenian echthroi was a choice between violence and litigation; verbal abuse could attend either. 2. Flexibility and variation. Echthroi might employ violence, litigation, or both at any stage of conflict. As we see in Demosthenes 54, even after being physically assaulted by Conon and his gang, Ariston was not required by the norms of Athenian echthra to respond with violence; he brought Conon to court instead. Perhaps the best example of this flexibility in action is the lengthy and well-documented dispute between Demosthenes and his bête noire Meidias (PA = APF 9719) described in Demosthenes 21, Against Meidias.19 The enmity between the two men commences when Meidias and his brother break into Demosthenes’ house and insult its occupants (§§78–80); Demosthenes retaliates by lodging and winning a lawsuit for slander (dikê kakêgorias, §§81–101) and by initiating a lawsuit for ejectment (dikê exoulês) that never comes to court (§81). Some fifteen years later, things come to a head when Demosthenes serves as producer (chorêgos) for his tribe’s chorus at the Dionysia of 349/8 (§13). Meidias makes several attempts to undermine the appearance and performance of Demosthenes’ chorus (§§14–18) and finally punches Demosthenes in the face during the festival itself (hyp. 1.2, 2.5; §§1, 18, 74; Aeschin. 3.52). In response, Demosthenes obtains a preliminary verdict against Meidias in the Assembly using the probolê procedure (§§1–2). Meidias retaliates by prompting a third party, Euctemon (PA 5800),20 to prosecute Dem17 Cf. Cohen (1991), (1995) on Classical Athens, and Miller (1990) and Byock (1982), (2001) on the Medieval Icelandic feud. 18 Cf. Miller (1990) 181. 19 Goodwin (1906); MacDowell (1990); Cohen (1995) 90ff.; Herman (1995) 48–50; Rhodes (1996) 23–24, (1998) 150–52. Another detailed description of the progression of a conflict involving both litigation and violence occurs in [Demosthenes] 47, Against Euergus and Mnesibulus (see chapter 4). 20 On the identity of this bearer of a common Athenian name see MacDowell (1990) 325–26.

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Introduction: Enmity, Vengeance, and Litigation

osthenes for desertion (§103). Euctemon is supported by one Nicodemus (PA 10868), who is subsequently killed by Demosthenes’ friend Aristarchus (PA 1656); Demosthenes is suspected of complicity in the homicide but never charged (§104; Aeschin. 1.170–72, 2.148; Din. 1.30).21 Meidias then speaks against Demosthenes at Demosthenes’ dokimasia (candidacy examination) for the Council of 500 in 347/6 (§111). Demosthenes may have delivered the Against Meidias soon thereafter in a prosecution stemming from the altercation at the Dionysia two years earlier.22 Demosthenes 21 thus amply illustrates the extent to which flexibility and variation characterized Athenian echthra. Not only does Demosthenes’ description of his ongoing battle with Meidias contain concrete examples of the paradigmatic manifestations of enmity listed by Euphiletus in Lysias 1, but both sides use litigation and violence interchangeably, with either weapon sufficing to commence, continue, or escalate hostilities. In pursuing an enemy, then, Athenians could choose between violence and litigation at any juncture; moreover, within each of these two broad options there existed a range of possible actions. As Robin Osborne has observed, the law of Classical Athens was characterized by its “open texture”; that is, by the diversity of legal procedures available to redress a given unlawful act.23 This essential feature of their legal system allowed Athenians to bring lawsuits ranging in severity from those carrying no penalty upon conviction (such as Demosthenes’ probolê against Meidias: Dem. 21.1–2) to those involving fines (Demosthenes’ dikê kakêgorias against Meidias: Dem. 21.81–101; Ariston’s dikê aikeias against Conon: Dem. 54), exile (the statutory penalty in a graphê traumatos ek pronoias: Lys. 4), or death (available in the graphê hybreôs, and mandatory in the apagôgê, contemplated but rejected by Ariston: Dem. 54.1–2). Violence, too, could be employed in varying degrees: breaking and entering (Dem. 21.78–80); a punch in the face (Aeschin. 3.52); a vicious and humiliating beating (Dem. 54; Lys. Against Teisis); assault with a weapon (Lys. 4); and even homicide (Dem. 21.104; Aeschin. 1.170–72; 2.148; Din. 1.30). Gabriel Herman has suggested that the choice to go to law displayed a restraint that Athenians, on general societal principle, found more commendable than physical retaliation.24 Accordingly, on Herman’s view, when Ariston responded to his near-fatal beating by Conon and his gang by taking Conon to court, and when Demosthenes retaliated for Meidias’ punch not by a counterpunch but by initiating litigation, they acted in accordance with a dominant ethic of nonviolent under-reaction (“a nail for an eye”) and could expect their jurors to sympathize with them against their violent aggressors. This analysis, however, unduly privileges the narratives of those Athenians who exacted (or endeavored to exact) a nail, and therefore provides prejudicial and insufficient grounds for extrapolating a doctrine common to all Athenians. Ariston naturally argues that litigation is the proper way to 21 On this incident see MacDowell (1990) 328–30; Worthington (1992) 179–80. 22 Whether Demosthenes ever delivered the Against Meidias in court is a matter of debate: for a summary of the evidence see MacDowell (1990) 23–28. 23 Osborne (1985b) 48; cf. Cohen (1995) 121–22. I find Osborne’s observation useful despite the criticism of Harris (1994b) 150 n. 16, (2000). 24 Herman (1993), (1995), (1996).

Introduction: Enmity, Vengeance, and Litigation

23

redress an assault, because that is the course of action he has chosen. But, as we have seen, Ariston also takes great pains to anticipate and rebut Conon’s de minimis defense that fights such as the one in question do not constitute proper grounds for litigation. If Ariston had assumed that his jurors arrived in court already sharing his opinion, he would not have needed to argue this issue at such length. Thus, rather than evidencing an overarching societal prejudice against using violence in the furtherance of private disputes, Demosthenes 54 demonstrates the complex and competing values that confronted Athenian echthroi: for every Ariston or Demosthenes who resorted to litigation, there was a Conon or Meidias who preferred to settle affairs with his fists.25 We should note, too, in contrast to Ariston’s posture of restraint in his pursuit of legal action against a physical aggressor, that the defendants who delivered Lysias 3 and 4 make the opposite argument: charged with intentional wounding (trauma ek pronoias) for committing acts of physical violence involving a weapon, they, like Conon, contend that their prosecutors have overreacted in bringing them to court.26 The well-documented use of litigation as a standard and accepted tactic against personal enemies means, moreover, that we should not view the pursuit of echthra and the goal of law as opposing principles. Much of the current debate has tended to posit a radical dichotomy between private vengeance and the rule of law; this phenomenon reflects the traditional Whig position of legal scholars who posit selfhelp and the rule of law as irreconcilable elements involved in a zero-sum contest and contend that as legal systems increase in sophistication, the former yields to the latter as the state gradually asserts a monopoly on the licit use of force.27 But over the entire course of Athenian legal history, as is commonly observed, self-help not only survived but remained an integral part of the machinery of law.28 The Athenians had no permanent state prosecutors, no police force charged with the investigation and apprehension of suspects, and no comparable law enforcement authority; accordingly, arrest by the apagôgê procedure (see below, p. 30 and chapters 4, 5, and 7) depended entirely on individual initiative, volunteer prosecution of offenses was the rule, and in many cases (with the notable exception of homicide) execution of judgment was left to the winner of a lawsuit (as, for example, in [Demosthenes] 47: see chapter 4). In short, without self-help, the Athenian legal system could not function. Absent the institution of echthra, the system could have functioned, but the amount of litigation would have decreased considerably, and certainly the Atheni-

25 See especially Roisman (2005) 71–79. 26 This is not to deny the prevalence or importance of the topos of prosecutorial restraint, which Herman (above, n. 24) ably demonstrates. Even Lysias, who seeks the death penalty for the former tyrant Eratosthenes, portrays himself as a self-restrained, and hence sympathetic, actor: see chapter 6. 27 E.g., Wesener (1958) 100. Even in the most developed legal systems of the modern West, however, the state does not assert an absolute monopoly; for example, the individual generally retains the right to defend himself physically (up to a certain point) against an attacker. 28 E.g., Rhodes (1998); Herman (1993) 411; Cohen (2005) 213, 226–29.

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Introduction: Enmity, Vengeance, and Litigation

ans would not have gained their reputation as a pathologically litigious people.29 As demonstrated above, Athenian litigants commonly assert or assume that an existing hostile relationship constitutes legitimate and expected grounds for legal action and openly use litigation in pursuit of personal enemies. Going to law, in short, is not an alternative to personal vengeance but a means of achieving it.30 Fundamentally, therefore, the relationship between personal vengeance and law in Athens is not a conflict of opposites (personal vengeance or the rule of law)31 but a process of constant negotiation and interdependence (personal vengeance and the rule of law). With regard to homicide, as we shall see in the ensuing chapters, the accommodation of the norms and practices of personal vengeance to the legal process and vice versa occupied the Athenians from the time of Draco through the Classical period. 3. Reciprocity and escalation. Athenian echthra, as represented in the sources, includes an element of reciprocity.32 The principals in any given instance of echthra tend to occupy a similar socioeconomic stratum:33 the litigants in Lysias 4 are joint owners of a slave and participants in an abortive reciprocal antidosis; Archippus and Teisis in Lysias’ Against Teisis exercise at the same wrestling school; and the speaker of [Demosthenes] 47 and his enemy Theophemus served as trierarchs in successive years (see chapter 4). This rough equivalence of power and influence makes it difficult for one disputant to crush the other immediately and decisively, and the result is a series of attacks and counterattacks such as we find not only in these cases but also in the conflicts between Demosthenes and Meidias (Demosthenes 21) and between Ariston and Conon (Demosthenes 54). These examples also demonstrate that a thin line separates reciprocity from escalation: disputes naturally tend to escalate by their own momentum as each side strives to do the other one better.34 The quarrel between Archippus and Teisis begins with insults and culminates in Archippus’ being tied to a column and flogged. Conon’s sons start by attacking Ariston’s slaves verbally and physically, then insult and assault Ariston himself, and two years later they and others beat Ariston within an inch of his life. The conflict between Demosthenes and Meidias escalates gradually but steadily from verbal insult to physical assault, punctuated by litigation. Contemporary Athenians’ awareness of the escalatory tendency of echthra is evidenced in a passage from Demosthenes’ Against Conon in which Ariston posits a rationale behind the discrete legal remedies available for offenses ranging from slander to homicide: oiJ me;n ga;r novmoi… ta;~ ajnagkaiva~ profavsei~, o{pw~ mh; meivzou~ givgnwntai, proeivdonto, oi|on … eijsi; kakhgoriva~ divkai: favsi toivnun tauvta~ dia; tou`to givgnesqai, i{na mh; loidorouvmenoi tuvptein ajllhvlou~ proavgwntai. pavlin aijkeiva~ eijsiv: kai; tauvta~ ajkouvw dia; tou`t∆ ei\nai ta;~ divka~, i{na mhdeiv~, o{tan h{ttwn h\/, livqw/ mhde; tw`n toiouvtwn ajmuvnhtai mhdeniv, ajlla; th;n ejk tou` novmou divkhn ajnamevnh/. trauvmato~ pavlin eijsi;n grafai; tou` mh; titrwskomevnwn tinw`n fovnou~

29 30 31 32 33 34

E.g., Ar. Nub. 206–8; Pax 505; Vesp. passim; [Xen.] Ath. Pol. 3.2. As also in the Icelandic sagas: Miller (1990) chs. 6–7, esp. p. 180, citing Heusler (1911) 38. As, e.g., Harris (2005). Cf. Miller (1990) 181ff.; Cohen (1995) 88. Cf. Cohen (1995) 114. Miller (1990) 182–84; Blundell (1989) 30–31; Dover (1994) 184.

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givgnesqai. to; faulovtaton, oi\mai, to; th`~ loidoriva~, pro; tou` teleutaivou kai; deinotavtou proewvratai, tou` mh; fovnon givgnesqai, mhde; kata; mikro;n uJpavgesqai ejk me;n loidoriva~ eij~ plhgav~, ejk de; plhgw`n eij~ trauvmata, ejk de; traumavtwn eij~ qavnaton, ajll∆ ejn toi`~ novmoi~ ei\nai touvtwn eJkavstou th;n divkhn, mh; th/` tou` prostucovnto~ ojrgh/` mhde; boulhvsei tau`ta krivnesqai. For the laws…have made provision so that pleas of necessity do not become more serious. For example…there are lawsuits for slander (kakêgorias dikai). They say that these exist so that people exchanging insults are not induced to hit each other. And then there are lawsuits for battery (aikeias). And I hear that these lawsuits exist so that a man in a weaker position should not defend himself with a rock or the like, but instead should await the justice provided by law. And again, there are lawsuits for wounding (traumatos graphai) so that, when people are being wounded, homicides do not occur. As I see it, the least of these actions, the one for verbal abuse, has in view the last and most terrible, with the goal that killing not occur and that people not be led on little by little from insults to blows, from blows to wounds, and from wounds to death. The goal, rather, was that a lawsuit for each of these acts be present in the laws, and that these matters not be judged by the anger or will of a random individual. (Dem. 54.17–19)35

According to Demosthenes’ interpretation, the purpose of the law is not to prevent the occurrence of violence but to arrest its escalation. The assumptions evident in this passage are telling. First, people will insult, beat, and wound each other: this is stated as a given. Second, Demosthenes assumes that disputes normally progress not by strict talio (insult for insult, punch for punch)36 but by escalation: insults will be requited not with insults but with fists, fistfights will lead to fights with weapons, and so on.37 The availability of dedicated legal actions appropriate to any stage of a quarrel from insult to wounding is designed to curb the escalation of existing disputes, and ultimately to prevent homicide. Whether or not the lawgiver (or rather lawgivers) truly acted on such an intent, Demosthenes’ assessment gives us critical insight into the mindset of his contemporaries. Demosthenes had his client advance an argument that he believed a fourth-century Athenian jury would find plausible; namely, that the purpose of these laws was to prevent the escalation of violence, not violence per se.38 4. Transitivity and heritability. Owing to the individualistic and competitive (“agonistic”) ethic that characterized Athenian society, and in particular Athenian

35 Cf. Cohen (1995) 127. 36 Probably the best-known expression of the lex talionis occurs in the Biblical rule laid down in Ex. 21:22–25: if two men engaged in a fight strike a pregnant woman and her child is subsequently stillborn or deformed, the responsible party “shall pay a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, and a bruise for a bruise” (see Barmash [2005] 158–59). 37 Note the contrast between Demosthenes’ expectations and Herman’s “nail for an eye” ethic (above, p. 22). 38 There is a striking parallel in the prologue to a Merovingian recension of the laws of the Salian Franks (Pactus Legis Salicae ‘C’ pr. 1), which states that the purpose of the present codification is to curtail the escalation (incrementa) – not the occurrence – of fights (rixarum). (Pace Drew [1991] 59, who translates incrementa rixarum as “increase of litigation,” rixa normally denotes a physical confrontation and should be interpreted as such here.) Significantly, Wormald (1999) 41 concludes that the “working assumptions” of the lex Salica “are…those of feud”; the same could be argued for Demosthenes’ interpretation of the Athenian laws of slander, battery, wounding, and homicide.

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Introduction: Enmity, Vengeance, and Litigation

litigation, in the Classical period, surviving forensic oratory commonly portrays Athenian echthra as a fundamentally individual phenomenon.39 As a rule, the conflicts narrated in the orators arise between individuals rather than groups. But individuals are not actors in a vacuum. Relationships, both friendly and inimical, are inevitable, and disputes that begin between individuals almost always broaden to include partisans of the original antagonists. In Athens, accordingly, conflicts normally originate between individuals but exhibit a clear tendency to expand so as to involve the principals’ fivloi, a term which the Athenians used to encompass both unrelated friends and kinsmen.40 To help one’s friends (philoi) and harm one’s enemies (echthroi) was a cardinal rule of Athenian ethics; according to the prevailing doctrine, both helping friends and harming enemies went beyond the requirements of simple obligation and were regarded as actions that brought positive satisfaction, and even joy, to the actor.41 An Athenian who obeyed this dictum avoided shame and accrued honor among his peers, thus gaining both internal satisfaction and external validation. Examples of the transitive property of philia (the state of being philoi) and echthra abound in Athenian forensic oratory. In Demosthenes 54, the confrontation between Ariston and the sons of Conon expands to include Conon and a number of his friends. In the opening stages of the clash between Demosthenes and Meidias, although Meidias’ brother plays an ancillary role in the first strike, the resulting hostilities consist primarily of a series of moves and counter-moves between the orator and Meidias. As the conflict progresses, however, the philoi of both principals become involved: Euctemon and Nicodemus join in on the side of Meidias, while Androtion supports Demosthenes. In Lysias’ Against Teisis, Teisis receives strategic advice from his lover Pytheas. Athenians were specifically expected to come to the aid of their philoi in the forensic stages of a dispute by delivering speeches (e.g., Lys. 15.12: above, p. 20) and testifying as witnesses on their behalf. Ariston gives an indication of the potency of philia and its potential ramifications for the value of testimony by philoi when he imagines the pretrial deliberations of Conon’s supporters:

39 Cf. Cartledge (1990) 55; Cohen (1995) 112, 114, 118, (2005) 219; Rhodes (1998) 161. As Harris (2005) 134, 137 notes, this fact poses the most serious challenge to the characterization of Athens as a feuding society. 40 Blundell (1989) 39–49. Cf. OE [email protected] (>MnE friend) and its cognates OHG friunt (>NHG Freund), Old Saxon friund, and Gothic frijonds (which glosses fivlo~ at, e.g., Lk. 15:6), all of which mean both “friend” and “kinsman” (Green [1998] 55–59). 41 Dover (1994) 180–84; Blundell (1989) ch. 2; Rhodes (1996) 25, (1998) 156; Mitchell (1996) 11; cf. Kurihara (2003) 472. Among the numerous expressions of this rule by Classical Athenian authors see especially Lys. 9.20; Pl. Rep. 332a-b (where, ironically, the speaker is Polemarchus, the brother of Lysias: see chapter 6); Soph. Ant. 643–44; Xen. Mem. 2.6.35, 4.5.10. The prevalence of similar sentiments expressed by non-Athenian authors of the Archaic and Classical periods (and beyond: see Blundell [1989] 26) indicates that helping friends and harming enemies was a general Greek doctrine. Aristotle, who may be regarded as a liminal figure (since he was a native of Stageirus in Macedonia but lived and worked in Athens for much of his life), subscribed to this ethic as well (e.g., Rhet. 1363a20–21, 33–34).

Introduction: Enmity, Vengeance, and Litigation

27

‘ouj ga;r hJmei`~ marturhvsomen ajllhvloi~… ouj ga;r tau`q∆ eJtaivrwn ejsti; kai; fivlwn… tiv de; kai; deinovn ejstin w|n parevxetai kata; sou`… tuptovmenovn fasiv tine~ oJra`n… hJmei`~ de; mhd∆ h|fqai to; paravpan marturhvsomen. ejkdeduvsqai qoijmavtion… tou`t∆ ejkeivnou~ protevrou~ pepoihkevnai hJmei`~ marturhvsomen. to; cei`lo~ ejrravfqai… th;n kefalh;n dev g∆ hJmei`~ h] e{terovn ti kateagevnai fhvsomen.’ “Will we not testify for each other? Is that not what comrades and philoi do? And what is so terrible in the accusations he will bring against you? Some people say they saw him being hit? Well, we’ll testify that he wasn’t touched at all. They say he was stripped of his cloak? We’ll testify that they did it first. They say he had to have his lip stitched? We’ll say we had our heads or something else broken.” (Dem. 54.35)

The frequency with which Athenian litigants accuse their adversaries’ witnesses of perjury, as Ariston does here, corroborated by statements in contemporary philosophical works that countenance support of one’s philoi in contravention of abstract justice,42 suggests that philoi commonly perjured themselves in support of their principals, or at least valued the obligations of philia over the duty to tell the truth when the two principles conflicted.43 Yet we should not presume that such an attitude always prevailed, as there are instances in Attic oratory where philoi refuse to testify for each other (e.g., Lys. 4.4). Among an individual’s philoi, the obligation to render assistance in or out of court fell especially heavily on his kin. While non-kin entered into relationships of philia by choice, blood kin (and, to a lesser degree, kin related by marriage) were philoi by default, and Athenian belief held the bonds of philia created by kinship, especially those arising naturally from blood kinship, to be closer, and therefore stronger, than the affinity between unrelated philoi.44 We may therefore picture an Athenian’s network of philoi by means of a gravitational model consisting of concentric circles with the principal at the center and his philoi in orbit around him at varying distances corresponding to their specific respective relationships: the innermost series of orbits is occupied by members of the nuclear family (parents and siblings), the next by more remote blood kin (grandparents, parents’ siblings, and first cousins), and thereafter distant blood kin (from second cousins outward), relations by marriage, and finally unrelated friends.45 The shorter the orbital distance 42 Pl. Rep. 343e4–6 (para; to; divkaion); Arist. Rhet. 1372a11–21. 43 Humphreys (1985b); Blundell (1989) 50; Todd (1990a) 23–27, (1993) 96; Cohen (1995) 107– 9; cf. Scafuro (1997) 44. 44 In feuding societies, the presumption that a person’s kin will support him is a commonplace: in the Icelandic sagas see, e.g., Laxdæla saga 19, 59; Hrafnkels saga Freysgoða 6. Jesus’ message to his disciples is all the more revolutionary for its travesty of the obligations of kin philia: “For I have come to divide man against his father, daughter against her mother, and daughter-in-law against her mother-in-law; and a man’s household shall be his enemies (kai; ejcqroi; tou` ajnqrwvpou oiJ oijkiakoi; aujtou`)” (Mt. 10:35–36, emphasis mine; cf. Mt. 10:21; Mk. 13:12; Lk. 12:52– 53, 14:26, 21:16; Micah 7:6). 45 Blundell (1989) 39–46 cites the Stoics for the concentric-circle model of relationships; Blundell herself draws an apt comparison with “overlapping and intersecting…ripples on a pond” (p. 39 with n. 62). Blundell’s circles of philoi, in order of increasing distance from the principal, are (broadly speaking) family, fellow citizens, and friends; the sentiments expressed in Attic oratory, however, seem to indicate that the positions of the last two groups should be reversed. The gravitational model advanced here is admittedly simplistic, and there will have been numerous

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between a given individual and the principal, the stronger the sentiment of philia and the concomitant pull of obligation. In the default case, philia is quasi-commutative among kin (if A is related to B, then B is related to A by the same degree of remove),46 and both philia and echthra are transitive among non-kin,47 as concisely expressed by the globally-occurring adage “the enemy of my enemy is my friend” and its variations. That is, given three individuals A, B, and C, and with the operators f symbolizing philia and e symbolizing echthra, the possible transitive permutations of friendship and enmity (without regard for the strength of these emotions, which varies as a function of the individual relationships involved) can be expressed by the following group of formulae: If A f B and B f C, then A f C (the friend of my friend is my friend) If A f B and B e C, then A e C (the enemy of my friend is my enemy) If A e B and B f C, then A e C (the friend of my enemy is my enemy) If A e B and B e C, then A f C (the enemy of my enemy is my friend).48 In reality, though, things are never so simple, and the natural phenomenon of constant flux in human interaction frequently challenges, and sometimes explodes, this ideal model. In Athens, as everywhere outside Utopia, friendships were formed and ended; relationships with kin improved and deteriorated. Moreover, since Athens was home to a limited population (large, to be sure, by Greek standards,49 but not in comparison with that of modern cities), it was inevitably impossible for all individuals and groups to define their friends and enemies so neatly even at a discrete point in time with personal relationships theoretically static. The intersection of entities involved in conflict might occur by design, as with the dynastic marriages between powerful clans evidenced in the Archaic period (for example, the marriage of the would-be tyrant Peisistratus to the daughter of his rival Megacles ca. 556, which was a condition of the reconciliation between Peisistratus and Megacles: Hdt. 1.61). But presumably networks of friendship and enmity more frequently collided by accident. The larger an individual’s group of philoi, the more likely he would eventually find himself in a position of conflicting interests, as would occur if, for example, he possessed independent ties of philia with two men who were, or who became, enemies: that is, if A had preexisting separate relationships of philia with B and C, but B and C found themselves in a state of echthra. Under such circumstances, A would find himself in a difficult position: he would have to choose whether to side with B or C, thereby possibly incurring the enmity of the spurned philos, or attempt to remain neutral and risk alienating both. A could, however,

46 47 48 49

variations depending on the nature of an individual’s personal relationships with his kin and friends; but as a general picture, I believe that the gravitational model accurately represents the Athenian normative ideal. Not perfectly commutative, since if A is the father of B, B is (of course) not the father of A. Cf. Blundell (1989) 47. Since, for this purpose, the identities of A, B, and C do not matter, there is no need to state the permutations that have B and C as the first term. Osborne (1985a) 64–65, 89.

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adopt a posture of neutrality so as to benefit all parties, by endeavoring to reconcile B and C: as we see in Lysias 4 (although the attempt there evidently failed), mutual friends often had the best chances of bringing about a reconciliation between echthroi.50

Homicide: a special case An obvious exception to the fundamentally individual nature of Athenian echthra arises in the wake of a homicide. Disputes arising from a killing essentially and necessarily differ from all others in that the victim cannot retaliate and vengeance must be sought by others. We have strong indications that in pre-Draconian Athens revenge was often achieved, or at least attempted, by a retaliatory killing of the slayer by relatives of the victim. But this phenomenon is conspicuously absent from Athens during the historical period. Although elements of the earlier custom survive into the Classical era in the rituals surrounding a violent death, Draco’s homicide law of 621/0, whether immediately or over time, successfully asserted the state’s jurisdiction over homicide and thereby suppressed retaliatory killings, so that, by the age of the orators, the Athenians no longer practiced self-help in this form.51 Even so, the right and duty of revenge continued to devolve upon the victim’s family as a group rather than upon an individual representative: despite the official abolition of revenge killing, under Draco’s law, which mandated the redress of homicide by legal action, the corporate kin of a homicide victim alone possessed legal standing to prosecute the accused killer and to pardon the convicted killer (chapter 1). Unfortunately, a significant lacuna in the evidence for the substance and application of Athenian homicide law spans the period between Solon’s revision of the Athenian constitution and lawcode (594/3) and the speeches of Antiphon, the first of the canonical Attic orators (fl. ?440’s-411).52 Fortunately, however, the surviving corpora of the Attic orators of the fifth and fourth centuries, especially those of Antiphon (all of whose six surviving orations concern either actual or hypothetical accusations of homicide), Lysias, and Demosthenes, provide a wealth of information that gives us more knowledge of Athenian homicide law during this period than of any other area of Athenian law (with the possible exception of inheritance law, owing largely to the speeches of Isaeus and the Demosthenic corpus). Thanks to the orators and to later lexicographers such as Harpocration and Pollux, it is possible to reconstruct the standard course of a dispute resulting from a homicide in Classical Athens. The dispute commenced with the victim’s dying injunction (when feasible) and a proclamation issued to the killer by the victim’s kin at his funeral. Conduct of the dispute involved a proclamation by the member of the board of ar50 This is often the case in feuding societies: for Medieval Iceland see, e.g., Laxdæla saga 19. 51 Cf. Cohen (1995) 84; Herman (1996) 29. 52 It is my belief that the treatment of homicide in Aeschylus, and to a lesser degree in Sophocles and Euripides, frequently reflects pre-Draconian custom; I intend to pursue this topic in a future study.

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chons known as the basileus, who superintended the system of dedicated homicide courts, followed by preliminary hearings, trial, and (in the case of a conviction) execution of judgment. Finally, the dispute could be settled in a number of ways: by reconciliation between the victim’s kin and the accused killer in lieu of trial, by a post-conviction pardon, or by compensation (chapter 2). In composing his regulations on legal redress for homicide, Draco had both presumed and required the solidarity of the victim’s kin; and, judging from the fragmentary surviving provisions of his law, he had apparently operated on the assumption that killers and their victims would be unrelated. Moreover, by the Classical period, the Athenians regarded avenging a fallen kinsman as a matter of piety; the sincere attempt to achieve vengeance by prosecuting the killer therefore fulfilled a religious mandate as well as a legal right. The works of the orators and Plato, however, include references to homicides that challenged both the normative Draconian model of kin solidarity and the Classical Athenian standard of pious vengeance. In some instances, the cultural mandates to achieve vengeance for a homicide victim and to maintain the solidarity of the family came into direct conflict, as individuals endeavored to prosecute members of their own kin group for the killings of non-kin (Plato, Euthyphro), or, in the event that a homicide occurred within a kin group, the family opted to preserve its solidarity by declining to prosecute the killer (Isaeus 9; Demosthenes 22, 24). In such cases, where the countervailing forces of philia and piety weighed heavily on individuals and families torn between the irreconcilable options of maintaining the solidarity of the family and obtaining revenge for the individual victim, the evidence suggests that the former principle generally won out (chapter 3). Yet other homicides fell completely outside the Draconian spectrum, as when a victim had no living kin within the degree of relation empowered by the lawgiver to prosecute the killing ([Demosthenes] 47). Here the Athenians applied the solidarity of the family as an exclusionary principle: despite the existence of alternative legal procedures available to non-kin, societal prejudices so strongly regarded the avenging of a homicide as the province of the victim’s family that victims lacking the requisite kin could easily fall through the cracks, with the result that their killings went unprosecuted and they remained unavenged (chapter 4). The second part of this study examines in detail the relationship between the significant developments in Athenian homicide law and the traditional norms of personal and familial vengeance in the late fifth and early fourth centuries, from shortly before the oligarchic revolution of 411 to the aftermath of the regime of the Thirty Tyrants (404/3). During this period, the Athenians were involved in constant discourse regarding their system of laws; while the bulk of Draco’s provisions remained unaltered, three significant changes were made to the substance and procedure of Athenian homicide law, one lasting and two temporary. At some point between 427 and 411, the Athenians extended the applicability of the apagôgê procedure (and the related procedures endeixis and ephêgêsis) to include suspected killers; thenceforth apagôgê functioned as an alternative way to prosecute homicide, alongside the traditional homicide procedure, the dikê phonou. The reign of the Thirty Tyrants and its aftermath produced two further alterations to the homicide

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law that were more limited in scope. The Thirty themselves, during their eight months in power, commonly transferred jurisdiction over homicide lawsuits from the traditional homicide courts to the Council of 500. Then, after the fall of the oligarchy, the restored democracy enacted the Amnesty of 403, designed to indemnify all Athenians except the Thirty and their direct subordinates for most acts committed during the late civil strife. At least in theory, the Amnesty fundamentally affected Athenian homicide law by shielding from liability for homicide all Athenians (with the aforementioned exceptions) who had not killed with their own hands, and thereby voiding half of Draco’s definition of liability with respect to homicides committed during the regime of the Thirty (chapter 5). The decades following the restoration of democracy witnessed numerous challenges to the letter and spirit of the Amnesty. The execution of 1,500 men and the exile of five thousand more during the Thirty Tyrants’ eight-month reign, and the resulting financial hardships confronting a large segment of the population, aroused in many Athenians a desire for vengeance against former supporters of the oligarchy that seriously challenged the reconciliation represented by the Amnesty of 403. The surviving record of litigation, preserved largely in the corpus of Lysias, suggests that initially the Athenians enforced the Amnesty with considerable rigor, as much out of fear that Sparta would intervene on behalf of her partisans in Athens as from a genuine desire for reconciliation. Soon after the declaration of amnesty, Lysias himself prosecuted the former tyrant Eratosthenes for the killing of his brother Polemarchus (Lysias 12, Against Eratosthenes). While this lawsuit complied with the Amnesty, since Eratosthenes was exempt from the Amnesty ex officio, we can already discern in Lysias’ prosecutorial rhetoric signs of strain that would soon threaten the Amnesty’s viability. Throughout his prosecution of Eratosthenes, moreover, Lysias consistently portrays the large-scale conflict between Athenian oligarchs and democrats both during and after the regime of the Thirty, which recalls the stasis that had threatened Athens in the time of Draco and Solon, in terms of personal enmity (chapter 6). As time passed and the perceived Spartan threat diminished, Athenian litigants became bolder in challenging the Amnesty. Around 398, only five years after its enactment, kinsmen of Dionysodorus, one of the Thirty’s first victims, prosecuted the alleged informer Agoratus for Dionysodorus’ killing, using the apagôgê procedure (Lysias 13, Against Agoratus). The lawsuit went to court despite the prosecution’s admission that Agoratus had not killed Dionysodorus with his own hand, and accordingly one of the major points of contention between the prosecution and defense was whether the terms of the Amnesty should protect Agoratus. In the Against Agoratus, as in the Against Eratosthenes, the language of personal enmity pervades the prosecution’s case, with the speaker operating under the assumption that a continuing state of echthra pits democratically-minded Athenians – now defined as the entire Athenian people – against former supporters of the oligarchy such as Agoratus. Furthermore, as in Lysias 12, the prosecution distinguishes the antagonists by their respective motives for and conduct of the conflict between them, lauding the democrats as honorable and pious disputants while condemning the oligarchs for violating the norms of echthra. From the standard rhetoric of enmity employed in

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the aftermath of the democratic restoration, as evidenced in the trials of Eratosthenes and Agoratus, arose an increasingly prevalent topos in fourth-century Athenian literature that contrasted the divisive effects of oligarchy (as exemplified by the Thirty Tyrants) with the unity and solidarity that became defining elements of democracy as a result of the Amnesty of 403. This phenomenon precipitated a radical shift, observable from the middle of the fourth century, in the Athenians’ views regarding the origins of their democracy (chapter 7).

PART I HOMICIDE AND VENGEANCE FROM DRACO TO DEMOSTHENES

CHAPTER 1 THE LEGISLATION OF DRACO The history of Athenian law begins with Draco, who composed Athens’ first written laws in the archonship of Aristaechmus (621/0: [Arist.] Ath. Pol. 4.1). This chapter examines the relationship between Draco’s legislation and the Athenian institutional tradition of private enmity and vengeance. I shall first argue that the commonly proposed causal connection between the attempted coup of Cylon in the 630’s or 620’s and the appointment of Draco as lawgiver (the “horizontal stasis” theory) lacks substantive corroboration and should be rejected in favor of a “vertical stasis” model amply supported by the sources. This discussion will be followed by a close reading of Draco’s surviving provisions on homicide; comparison of these regulations with aspects of Classical funerary practice and legal procedure in the wake of a killing indicates that the principal aims of Draco’s homicide law were to suppress retaliatory killings and assert the jurisdiction of the state, to restrict participation in disputes arising from a homicide, and to encourage solidarity among the victim’s kin.

CYLON AND DRACO Athens emerges from myth into history with two events: the conspiracy of Cylon, for which the possible dates are 636, 632, 628, and 624; and the legislation of Draco, securely dated to 621/0.1 Many scholars assert that the former served as a catalyst for the latter;2 advocates of a connection between the Cylonian affair and the appointment of Draco as lawgiver often hypothesize that contemporary Athenian society was wracked by conditions of stasis (civil strife) between its noble families, of which Cylon’s abortive coup will have been the most extreme manifestation.3 However, a close reading of the pseudo-Aristotelian Constitution of the Athenians (Ath. Pol.), combined with a critical examination of the other sources for Cylon’s uprising, militates against the theory of feuding clans and severs the proposed connection between the upheaval surrounding Cylon and the appointment of Draco. The evidence of these sources reveals that Draco’s commissioning as law1

2

3

The main ancient sources for Cylon’s attempted coup are Hdt. 5.71, Thuc. 1.126.3–12, and Plut. Solon 12; the preserved part of [Arist.] Ath. Pol. begins with its aftermath (cf. Heraclides Lembus, Epit. 2). The coup occurred in an Olympic year after Cylon’s victory in the diaulos in Ol. 35 = 640 (Eusebius, Chronica 1.33) and before Draco’s legislation (Thuc. 1.126; [Arist.] Ath. Pol. 1, 4.1.). E. g., Stroud (1968) 72 n. 33 with references; Hignett (1952) 87; Carawan (1998) 4; Andrewes in Boardman-Hammond (1982) 370; Humphreys (1991) 20–22; Forsdyke (2005) 84–90; contra Ruschenbusch (1960) 147. E. g., Bury (1951) 179; Stroud (1968) 72.

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giver4 was motivated not by horizontal stasis between rival aristocratic clans but by vertical stasis between the aristocracy and the masses.

The horizontal stasis theory Evidence for horizontal stasis around the time of Cylon’s uprising appears only in Plutarch, who follows his description of the slaughter of the Cylonians with the following statement: …kai; tw`n Kulwneivwn oiJ perigenovmenoi pavlin h\san ijscuroiv, kai; stasivazonte~ ajei; dietevloun pro;~ tou;~ ajpo; tou` Megaklevou~. ejn de; tw/` tovte crovnw/ th`~ stavsew~ ajkmh;n labouvsh~ mavlista kai; tou` dhvmou diastavnto~, h[dh dovxan e[cwn oJ Sovlwn parh`lqen eij~ to; mevson… …and the surviving Cylonians regained strength and engaged in continual civil strife against the descendants of Megacles. At that time, with the strife at its absolute peak and the people divided, Solon, who was already of some repute, came forward to mediate…. (Plut. Solon 12.2–3)

Apart from Plutarch (who, significantly, mentions conditions of stasis only after the failure of Cylon’s coup), no ancient source lends credence to the theory that violent rivalry between noble clans characterized seventh-century Attica. Accordingly, most who posit such a scenario exhibit due circumspection.5 The meager information given by the sources concerning the identity of Cylon’s co-conspirators gives no indication of a divided and feuding Athenian aristocracy: Herodotus states that Cylon recruited his faction from among his agemates (prospoihsavmeno~ de; eJtairhivhn tw`n hJlikiwtevwn), while Thucydides relates that Cylon was supported by a force provided by his father-in-law, Theagenes tyrant of Megara, and by his own (presumably Athenian) philoi. Moreover, the immediate reaction of the Athenians to Cylon’s first strike, as narrated by Thucydides, expressly contradicts the presumption of contemporary horizontal stasis. When apprised that Cylon and his partisans had occupied the Acropolis, the Athenians came from their fields en masse (pandhmeiv, “with the whole people”) and blockaded the insurgents; when the siege lasted longer than expected, they granted the nine archons full discretionary powers to resolve the situation (Thuc. 1.126.7–8).6 Had Attica been wracked by feuding within the nobility, such unity and efficiency in action would have been improbable, to say the least. 4

5

6

While some have theorized that Draco held some office in 621/0 (e. g., “perhaps one of the six thesmothetes”: Glotz [1904] 301–2; “special thesmothete”: Bonner-Smith [1930] 1.72), all that we can state with certainty is that he was not eponymous archon for that year. As Bury (1951) 179: “Some feud among the clans may have been at work [in the execution of the Cylonian conspirators]”; Hignett (1952) 87: “It has even been suggested that the homicide legislation of Drakon was intended to put an end to blood-feuds among the nobles which had been started by the Kylonian affair.” For an alternative, “regionalist” explanation of the Cylonian affair see Sealey (1960) 168. Gomme in Gomme-Andrewes-Dover (1950–81) 1.425 cites Forbes (1895) for the significance of pandhmeiv: that is, ‘“kept up by the whole people together; not by particular clans or demes…’” (emphasis mine). For the preference of Thucydides’ identification of the magistrates

Chapter 1: The Legislation of Draco

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Thus, neither the composition of the Cylonian conspiracy nor the response of the Athenian people supports the hypothesis of horizontal stasis.7 The sources for the Cylonian insurgency unanimously hold the Alcmaeonids responsible for the slaughter of Cylon’s partisans. Herodotus names the clan; Thucydides, his judgment possibly compromised by pro-Periclean bias,8 blames “those Athenians who had been entrusted with the guard duty,” but even so he grudgingly clarifies their identity by acknowledging that Pericles inherited the curse from the distaff side of his family. Finally, Plutarch provides the name of the eponymous archon, Megacles, who presided over the massacre (Plut. Solon 12.1).9 While these authors differ with regard to some of the details of the Cylonian uprising and its aftermath, the outline of events emerges clearly: the Cylonians abandoned sanctuary on the Acropolis after obtaining conditions from their besiegers that, at the least, included a guarantee against summary capital punishment.10 But the archons, led by Megacles, violated the agreement and killed most of the Cylonians as they came down the Acropolis, even those who managed to reach the altar of the Furies on the neighboring Areopagus (Thuc. 1.126.11; Plut. Solon 12.1). For this abominable act of sacrilege the Alcmaeonids were subsequently cursed and sentenced to perpetual exile (ajeifugiva).11 The preserved details of the trial and punishment of the Alcmaeonids also weigh significantly against the horizontal stasis theory. At the time of Cylon’s attempted coup, the Alcmaeonids were perhaps the strongest clan in Attica, as evidenced by

7

8 9

10

11

in charge of the siege operations as the archons (cf. Plut. Solon 12.1) over Herodotus’ “presidents of the naucraries” (oiJ prutavnie~ tw`n naukravrwn) see Gomme, ibid. 1.426. According to Hignett (1952) 87, the fact that the Athenians rallied unanimously against Cylon “suggests that if the people already had grievances against the nobles they had not yet become acute, since they were prepared to defend the government of the aristocracy against a usurper.” Hignett notes, but (in my view) underestimates, the impact of the Megarian presence on the chauvinistic Athenian psyche: the dêmos could quite conceivably have harbored serious grievances against the Athenian aristocracy, but that would not necessarily make them willing to accept a Megarian-backed tyrant. Cf. How-Wells (1928) 2.37, alleging that Thucydides’ account “is clearly based on Alcmaeonid tradition.” Plutarch’s source for Megacles’ name was presumably the lost beginning of the Ath. Pol., since Heracleides Lembus, Epit. 2 names oiJ peri; Megakleva as the killers of the Cylonians: see Gomme in Gomme-Andrewes-Dover (1950–81) 1.427; Sandys (1912) 1–3; Rhodes (1993) 83; Chambers (1990) 141. Herodotus says the Cylonians were “liable except to execution” (uJpegguvou~ plh;n qanavtou); according to Thucydides, the Athenians persuaded Cylon’s men to leave the Temple of Athena “on the condition that they would do them no harm” (ejf∆ w/| mhde;n kako;n poihvsousin). Several indications show that this sentence fell upon the Alcmaeonids and not upon the families of all nine archons (unless, improbably, all nine were Alcmaeonids). (1) Thucydides says (1.126.11), “from this they and their genos (note the singular: Gomme in Gomme-AndrewesDover [1950–81] 1.427) were called accursed and sinners against the goddess (kai; ajpo; touvtou ejnagei`~ kai; ajlithvrioi th`~ qeou` ejkei`noiv te ejkalou`nto kai; to; gevno~ to; ajp∆ ejkeivnwn). (2) Plutarch (Solon 12.2: above, p. 36) identifies the enemies of the surviving Cylonians as the descendants of Megacles the Alcmaeonid. (3) The subsequent enforcement of the curse by king Cleomenes of Sparta in 508/7 was directed specifically (although perhaps not exclusively) at the Alcmaeonids (Hdt. 5.70–72; [Arist.] Ath. Pol. 20).

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the position of one of their own, Megacles, as eponymous archon (and by their subsequent speedy recovery from a sentence of “perpetual” exile, which featured the marriage of Megacles’ eponymous grandson to Agariste, daughter of the tyrant Cleisthenes of Sicyon: Hdt. 6.130–31); moreover, since the liability for the Cylonian massacre superintended by the nine archons fell upon the Alcmaeonids, it is likely that Megacles was not the only Alcmaeonid archon during the year of Cylon’s coup. To compel such a powerful clan to submit to trial for the actions of a few of its members, not to mention the enforcement (however temporary) of the verdict of aeiphygia, will have required considerable solidarity among the rest of the Athenians. The record of a jury specially chosen according to noble birth (ajristivndhn), mentioned at the very beginning of the preserved part of the Ath. Pol.,12 confirms this image of an Athenian nobility unified against the Alcmaeonids. Furthermore, the supposed presence of internal friction among the Athenian aristocracy would render highly improbable the immediate reversal in public opinion, amply documented by the sources, from unanimous opposition to the Cylonians to widespread condemnation of the Alcmaeonids – especially since the Alcmaeonids, a wealthy Eupatrid clan, will have had numerous supporters and dependents among the common people of Attica. Under conditions of horizontal stasis we would expect fragmentation under pressure; instead we find cohesion and solidarity. When did the trial and banishment of the Alcmaeonids take place? Plutarch (Solon 12.3) credits Solon with persuading the Alcmaeonids to stand trial; if correct, this would presumably place the trial and exile of the Alcmaeonids in the very late seventh or early sixth century,13 two decades or so after the legislation of Draco. But Plutarch’s account of Solonian intervention finds no confirmation in Thucydides and is explicitly contradicted by the Ath. Pol. Immediately after describing the killing of some of Cylon’s partisans at the altars of the Furies, Thucydides writes, kai; ajpo; touvtou ejnagei`~ kai; ajlithvrioi th`~ qeou` ejkei`noiv te ejkalou`nto kai; to; gevno~ to; ajp∆ ejkeivnwn. h[lasan me;n ou\n kai; oiJ ∆Aqhnai`oi tou;~ ejnagei`~ touvtou~, h[lase de; kai; Kleomevnh~ oJ Lakedaimovnio~ u{steron meta; ∆Aqhnaivwn stasiazovntwn, touv~ te zw`nta~ ejlauvnonte~ kai; tw`n teqnewvtwn ta; ojsta` ajnelovnte~ ejxevbalon… From this they and their descendants were called accursed and sinners against the goddess. So the Athenians drove out these accursed ones (whom later Cleomenes the Spartan also drove out with the help of an Athenian faction): they drove out the living, and they took up the bones of the dead and cast them out [of Attica]…. (Thuc. 1.126.11–12)

While Thucydides does not offer an absolute date for the first expulsion of the Alcmaeonids, he gives no indication of a substantial gap between Cylon’s coup and the

12 [Arist.] Ath. Pol. 1; cf. Plut. Solon 12.3, which gives the number of jurors as 300. See BonnerSmith (1930) 1.102–3. 13 Solon served as eponymous archon in 594/3 ([Arist.] Ath. Pol. 5.2; Sandys [1912] 19; Rhodes [1993] 120–21; Chambers [1990] 160–62). Plutarch discusses Solon’s intervention in the Alcmaeonid affair shortly before his archonship (cf. Plut. Solon 14) and states that Solon was already a man of respect (h[dh dovxan e[cwn, 12.3) when he convinced the Alcmaeonids to submit to judgment; taken together, these passages suggest that Plutarch believed the trial of the Alcmaeonids to have occurred around the turn of the sixth century.

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expulsion, nor does he mention Solon, much less connect Solon with the factional strife between the Cylonians and Alcmaeonids alleged by Plutarch.14 The Ath. Pol., together with Heracleides Lembus’ Epitome, provides more explicit evidence against Plutarch’s association of Solon with the trial of the Alcmaeonids and in favor of a pre-Draconian trial date. Ath. Pol. 3.1 introduces the organization of the Athenian constitution before Draco («Hn d∆ hJ tavxi~ th`~ ajrcaiva~ politeiva~ th`~ pro; Dravkonto~ toiavde: “the arrangement of the ancient constitution before Draco was as follows”). Compositional arrangement therefore suggests that the author assigned the contents of chapter 1 – the trial, conviction, and banishment of the Alcmaeonids and the purification of Athens by Epimenides of Crete – to the period before Draco’s legislation. Ath. Pol. 4.1 completes the ring composition begun at 3.1,15 explicitly assigning what precedes it to “the first constitution” (hJ prwvth politeiva), and states that after a brief interval (meta; de; tau`ta crovnou tino;~ ouj pollou` dielqovnto~), during the archonship of Aristaechmus (621/0), Draco enacted his laws. Rejection of the “Draconian constitution” that forms the bulk of chapter 4 as a historically inaccurate interpolation16 does not affect this internal chronology: the author of the Ath. Pol. dated the events of chapter 1 before the legislation of Draco (4.1) and thus a fortiori before the rise to political prominence of Solon, whose life and reforms occupy chapters 5 through 12. Furthermore, immediately after recounting Epimenides’ purification of Athens (1.3), the author states, “After this, it came about that the nobles and the masses engaged in stasis for a long time” (meta; de; tau`ta sunevbh stasiavsai touv~ te gnwrivmou~ kai; to; plh`qo~ polu;n crovnon, 2.1). He next describes the oligarchic nature of the constitution then in force and the resulting grievances of the poor, with specific attention to the hektêmoros (“sixth-parter”) system of hereditary serfdom that resulted from debtors’ defaulting on loans contracted on the security of their persons.17 Again, strictly on the basis of the internal arrangement of the text, we must conclude that tau`ta in 2.1 (the “this” in “after this”: literally a plural, “these things”) refers to the events of chapter 1. Since we are informed below (6.1) that Solon’s reform known as the seisachtheia (“Shaking-off of Burdens”) freed the dêmos by banning loans on the security of the person, the stasis between Athenian nobles and commoners described in chapter 2 must occupy the period between the trial of the Alcmaeonids and the reforms of Solon. If the trial preceded the appointment of Draco, as argued here, the resulting interval conforms to the assertion at 2.1 that the Athenian nobility and masses clashed “for a long time” (polu;n crovnon).18 14 Cf. Gomme in Gomme-Andrewes-Dover (1950–81) 1.427–28. 15 On ring composition in the opening chapters of Ath. Pol. see Rhodes (1993) 45–46, citing Keaney (1969). 16 See Rhodes (1993) 53–54, 87–88 with references; Chambers (1990) 154–58. 17 On the hektêmoroi cf. Plut. Solon 13.4–5, and see Woodhouse (1938) 31–97; Rhodes (1993) 90–97; Chambers (1990) 143–46 with references. 18 If we attempt to reconcile the Ath. Pol. with Plutarch and connect Solon to the trial of the Alcmaeonids, we find a corresponding description of lasting civil strife in Attica in the period between the 580’s, a decade that witnessed several episodes of anarchy and Damasias’ refusal to

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Part I: Homicide and Vengeance from Draco to Demosthenes

The Ath. Pol. thus unambiguously places the trial of the Alcmaeonids and the purification of Athens by Epimenides before Draco’s legislative activity. Unless Plutarch is guilty of a gross misreading, he did not rely on the Ath. Pol. when associating Solon with the Alcmaeonids. Rather, the presence of Solon in Plutarch’s account results from the well-attested Greek literary phenomenon whereby important events gravitate toward roughly contemporary (and sometimes quite remote) famous personages;19 we might compare the tendency of the Attic orators to ascribe laws to Solon as a default case or Plutarch’s own accreditation of the Spartan lawgiver Lycurgus with the fully-developed Spartan system of military education (agôgê) and the city’s ban on precious-metal coinage (Plut. Lyc. 9, 16ff.; cf. § 1).20 Since it can be securely located chronologically between the Cylonian conspiracy and the legislation of Draco, the trial of the Alcmaeonids provides critical insight into the political and social environment in Attica during the years leading up to the archonship of Aristaechmus and the appointment of Draco as lawgiver. The consensus among the Athenian nobility evidenced in the composition of the jury and the outcome of the trial, considered together with the solidarity displayed by the Athenian people as a whole in its immediate response to Cylon’s attempted coup, militates decisively against the horizontal stasis theory. Several arguments from probability further diminish the plausibility of the hypothesis that the decision to appoint Draco resulted from strife within the Athenian aristocracy. If we assume a background of horizontal stasis, the expulsion of the Alcmaeonids will have represented a decisive victory for their opponents. We must then ask why the victors would desire to alter the status quo by introducing the significant innovation of a written lawcode.21 Moreover, the remnants of Draco’s code (IG I3 104, augmented by quotations of the homicide law in Demosthenes 23 and surrender his eponymous archonship, and the first tyranny of Peisistratus (561/0). Forcing such a consensus, however, requires that we assume an internal inconsistency in the Ath. Pol., which explicitly places the first anarchy four years after Solon’s archonship and reforms (13.1). Moreover, Ath. Pol. 2.1 describes conditions of vertical stasis, whereas the geographically-based factionalism that led to the rise of Peisistratus is a case of horizontal stasis (the connection of the various factions with constitutional programs at Ath. Pol. 13.4 is clearly anachronistic: cf. Hdt. 1.59.3; Sealey [1960] 163–64). 19 Cf. Rhodes (1993) 83. On the basis of the testimony of the Ath. Pol. and Plutarch that the dead as well as the living Alcmaeonids were cast out of Attica, Rhodes interjects a gap of at least one generation between the killing of the Cylonians and the expulsion of the Alcmaeonids. If we follow Rhodes, there is scarcely room for the expulsion even between the earliest possible date for the coup (636) and the activity of Draco (621/0). But Rhodes’ conclusion is unnecessary: the curse on the Alcmaeonids was evidently retroactive, and in pragmatic terms it will have been difficult, if not impossible, to distinguish between the bones of those who died before the coup (who presumably will have been guiltless on Rhodes’ view) and those who died subsequently (who will have been complicit). Thus it is most likely that the trial and banishment of the Alcmaeonids and Epimenides’ purification occurred soon after the coup attempt. 20 Huxley (1962) 63; Cartledge (2002) 134. 21 Cf. Stroud (1968) 72–73. Regardless of whether Draco’s provisions themselves contained innovations (as seems clear from his retroactivity clause) or merely reproduced existing custom (as, e. g., Bonner-Smith [1930] 1.74), the very act of inscribing the laws was innovative (see below, p. 46).

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[Demosthenes] 43) evince a doctrine of liability directly opposed to that enforced upon the Alcmaeonids.22 For the actions of a few, led by the eponymous archon Megacles, the entire Alcmaeonid genos was cursed and sentenced to perpetual exile from Attica;23 although enforced sporadically at best, this curse would be cited subsequently by the Athenian tyrant Peisistratus ca. 556/5, who would only sleep with his tainted Alcmaeonid wife “in an uncustomary manner” (ouj kata; novmon, Hdt. 1.61.1), by the Spartan king Cleomenes in 508/7 as he banished some 700 households, and even as late as the beginning of the Archidamian War (Thuc. 1.126.2). The Alcmaeonid curse, therefore, constitutes an extreme example of vicarious liability: the contamination afflicts not only all living members of the clan but their descendants and even their ancestors (above, p. 40 with n. 19).24 In contrast, Draco’s homicide law defines liability in much narrower terms, restricting it to the person who kills with his own hand or conspires to kill (IG I3 104.11–13: dikavzen de; to;~ basileva~ ai[tion fovno e] [to;n aujtovcer ktevnant∆]25 e] boleuvsanta). This limit on liability corresponds to the constraints imposed elsewhere in the law on the capacity to prosecute the accused killer (IG I3 104.20ff.; cf. [Dem.] 43.57 [lex]) and to pardon the convicted killer (IG I3 104.13–19); taken together, these provisions demonstrate that one of Draco’s primary concerns was to restrict participation on both sides of a homicide trial (see below, p. 56). Proponents of the horizontal stasis theory might respond that Draco’s restrictions on liability could have been intended to safeguard the victors in the conflict from bloody retaliation by the Alcmaeonids or their partisans. But this presumption is refuted by the retroactivity clause at IG I3 104.19–20, which ordains that “even those who killed before shall be bound by this law” (kai; oiJ de; provteron ktevnante~ ejn to`ide to`i qesmo`i ejnecevsqon): in other words, no previous killing is “grandfathered in.”26 Far from protecting the status quo, the provision of retroactivity actually exposed previous killers to liability for their actions, from which they presum22 Fine (1983) 190. 23 I do not find convincing the arguments of Thomas (1989) 150 that this original exile is a fiction extrapolated from the subsequent expulsion of the Alcmaeonids by Cleomenes. 24 The concept of vicarious liability in the area of religion, in the form of a hereditary curse (a[go~, a[th, ajrav, kaqavra), occurs commonly in ancient Greece: e. g., Hdt. 1.91 (curse on the Mermnad kings of Lydia); Tod (1946–48) no. 23 = Meiggs-Lewis (1988) no. 30 = van EffenterreRuzé (1994–95) I, no. 104 (cf. no. 105); Soph. Ant. 584–85, 594–97 (curse on the Labdacids, including Laius, Oedipus, and Antigone); Ar. Thesmo. 332–51. See Bowra (1945) 87–88; on the connection between curse and law see Ziebarth (1895); Harrison (1922) 138–45; on law and religion generally see Parker (2005). A similar concept of vicarious liability is evident in the Old Testament: e. g., Dt. 28:18; Ex. 20:5 ~ 34:7 ~ Num. 14:18 ~ Dt. 5:9. Vicarious liability in the secular realm is a general characteristic of feuding societies: see, e. g., the Icelandic sagas passim and Puzo (1969) 194. 25 There is a lacuna of exactly seventeen letters at this point in the inscription. I have printed my own suggestion (see below, p. 49), which is closest to that of Wolff (1946) 73 (e] [to;n aujtovcera e] to;n bou]leuvsanta); for others see Ruschenbusch (1966) F 5a; Gagarin (1981) xiv–xv; and the textual notes to the inscription in IG I3. 26 Such a retroactivity clause should not be seen as a natural or inevitable part of Draco’s code; previous killers could just as easily have been “grandfathered in.” Pericles’ citizenship law of 451/0 ([Arist.] Ath. Pol. 26.4) provides a well-known counterexample: anyone born after its

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Part I: Homicide and Vengeance from Draco to Demosthenes

ably would have been immune so long as their faction retained its supremacy (and the Alcmaeonids remained in exile). We can, therefore, state with fair certainty that the features of individual liability and retroactivity in Draco’s homicide law make it highly unlikely that the impulse to commission Draco as lawgiver came from the victors in putative aristocratic unrest who had just defeated their Alcmaeonid enemies and exiled them en masse. In composing his homicide law, Draco may well have been influenced by the Cylonian fiasco and the fate of the Alcmaeonids, but in the opposite direction, since the liability provision may be read as tacit criticism of the judgment enforced upon the Alcmaeonids (below, p. 57).27 In fact, beginning with the legislation of Draco, vicarious liability appears only rarely in Athenian law. Occasionally in the Classical period a penalty of disfranchisement (“total” atimia) fell upon a wrongdoer and his offspring;28 for example, when Antiphon and Archeptolemus were convicted of treason and sentenced to death in 411, both they and their descendants incurred atimia (kai; a[timon ei\nai ∆Arceptovlemon kai; ∆Antifw`nta kai; gevno~ to; ejk touvtoin kai; novqou~ kai; gnhsivou~, [Plut.] Mor. 834a–b [decretum] [Vit. X Orat., Antiphon 24]: below, p. 176). Other references to vicarious liability occur in legal contexts but are not themselves strictly legal; these include the diômosia, the special oath taken by all parties to trials for homicide and intentional wounding (trauma ek pronoias), in which the swearer called down destruction upon himself, his offspring, and his house if he lied (diomei`tai kat∆ ejxwleiva~ auJtou` kai; gevnou~ kai; oijkiva~, Dem. 23.67).29 Although rare in law, the principle of vicarious liability nonetheless survived in popular sentiment: toward the close of the fifth century, for example, in prosecuting the former tyrant Eratosthenes for his brother’s killing, Lysias contemplated aloud the execution of the children of all the Thirty Tyrants, although they were not legally liable to punishment for their fathers’ actions (Lys. 12.36: below, p. 164). passage qualified for citizenship only if both his parents were citizens, but the citizenship status of Athenians born before its passage was unaffected. 27 Whatever its motivation, the rejection of vicarious liability in Draco’s homicide law likely had no immediate effect on contemporary relations between the recently-exiled Alcmaeonids and their fellow Athenians. The terminus ante quem for the Alcmaeonids’ return to Attica is 561/0, when Peisistratus took advantage of horizontal stasis between the “men of the shore,” led by Megacles son of Alcmaeon (and grandson of the eponymous archon during the Cylonian affair), and the “men of the plain,” led by Lycurgus son of Aristolaides, to launch his first attempt at tyranny ([Arist.] Ath. Pol. 13.4; Hdt. 1.59.3). Despite the assertions of some scholars (e. g., R. Thomas in OCD3 s.v. Alcmaeonidae), Alcmaeon’s command of the Athenian contingent in the First Sacred War (Plut. Solon 11; contra Aeschin. 3.108) does not necessarily imply that the Alcmaeonids had been restored to their homes in the 590’s or 580’s (cf. Davies [1971] 371). It may even argue the contrary: the close Alcmaeonid ties with Delphi (more famously attested in Herodotus’ description of the Alcmaeonid contract to rebuild Apollo’s temple, which resulted in the god’s instructing Spartan suppliants to “free Athens” from Peisistratid tyranny: 5.62–63) may have begun at this time, as the banished clan sought Delphic pressure on Athens to assist them in their first bid for repatriation. 28 Lipsius (1905–15) 931–32; Hansen (1976) 61–62; Todd (1993) 142–43. 29 Inheritance by an heir of a decedent’s debt to the state and attendant “partial” atimia (which was standard procedure at Athens: Andoc. 1.73; [Dem.] 58.1; Hdt. 6.136; Todd [1993] 143) is not an example of vicarious liability: the debt is not punitive on the heir but follows the estate.

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Finally, we must consider the nature and content of Draco’s code as a whole. According to Athenian tradition, Draco wrote an extensive lawcode, which Solon later annulled except for its provisions on homicide.30 Some modern scholars have argued that Draco regulated homicide alone,31 and still others have adopted the extreme position that Draco never existed (at least in human form).32 But the burden of proof falls upon those who wish to limit the scope of Draco’s code, and the familiarity shown by Classical and later authors with obsolete Draconian regulations on topics other than homicide33 argues for acceptance of the traditional narrative.34 It may be tempting to posit a connection between Cylon’s attempted coup, the reaction against the Alcmaeonids, and the appointment of Draco if one believes that Draco only legislated on homicide, or if one is unduly influenced by the fact that only his homicide law survives in significant fragments. If, however, we accept the tradition that Draco composed an entire lawcode, it is more difficult to see how the Cylonian affair and response could have precipitated the creation of that code, which regulated not only homicide but a wide range of offenses presumably unrelated to Cylon’s conspiracy and its aftermath.

Evidence for vertical stasis While the horizontal stasis theory thus fails under scrutiny, we do have compelling evidence for vertical stasis in Attica in the late seventh and early sixth centuries. The second chapter of the Ath. Pol. (quoted above, p. 39) documents protracted strife between the nobility (oiJ gnwvrimoi) and the masses (to; plh`qo~) in the period following the purification of Athens by Epimenides, which concluded the speedy chain of events set in motion by Cylon’s abortive coup attempt. To corroborate his narrative, the author cites several passages from the poetry of Solon, which indicate that whatever measures Draco took to appease the Athenian commons missed the mark.35 In the years leading up to the appointment of Solon, Attica was torn by economic strife between the wealthy aristocracy and the rest of the Athenian people. In the words of the Ath. Pol., toiauvth~ de; th`~ tavxew~ ou[sh~ ejn th/` politeiva,/ kai; tw`n pollw`n douleuovntwn toi`~ ojlivgoi~, ajntevsth toi`~ gnwrivmoi~ oJ dh`mo~. ijscura`~ de; th`~ stavsew~ ou[sh~ kai; polu;n crovnon ajntikaqh30 31 32 33

[Arist.] Ath. Pol. 7.1; Plut. Solon 17.1; cf. Dem. 23.51; [Dem]. 47.71. Stroud (1968) 76 n. 45 with references; Sealey (1960) 157; Humphreys (1991) 18–20. Beloch (1913) 1.2.258–62; Sealey (1960) 158, (1976) 104. E. g. Xen. Oec. 14.4–5 (theft); Plut. Solon 17.2 (idleness, petty theft, temple robbery); Lys. fr. 10 Thalheim = fr. XI Gernet-Bizos (idleness); Aeschin. 1.6ff. (education); Pollux 9.61 (unspecified offense). See Stroud (1968) 78–81. 34 Bonner-Smith (1930) 1.111, 133 with references; Stroud (1968) 65–66; Gagarin (1981) 1 n. 1. 35 Cf. Bonner-Smith (1930) 1.134ff.; Andrewes in Boardman-Hammond (1982) 371; Stroud (1968) 75–76. This is not to say that Draco necessarily attempted economic measures specifically designed to alleviate problems of (e. g.) debt or land tenure (as Solon later would): such a proposition must remain purely hypothetical. However, the very act of drawing up a code of laws was in itself a reaction to discontent among the Athenian plêthos (below, p. 46).

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Part I: Homicide and Vengeance from Draco to Demosthenes mevnwn ajllhvloi~, ei{lonto koinh/` diallakth;n kai; a[rconta Sovlwna kai; th;n politeivan ejpevtreyan aujtw/… ` Such being the arrangement in the state, and with the masses enslaved to the few, the people rose up against the nobility. With the stasis being severe and the two sides having been opposed to each other for a long time, they jointly chose Solon as reconciler and archon and entrusted the state to him…. ([Arist.] Ath. Pol. 5.1)

This description of the state of affairs in Attica confirms, in general terms, the statement made at 2.1, with an additional comment regarding the servitude of the dêmos. Chapter 6 then explains that the chief complaint of the people concerned the treatment of debtors and was addressed for the present by Solon’s cancellation of existing debts both public and private (the seisachtheia) and for the future by a law banning loans on the security of the person (cf. Plut. Solon 15). The link between debt and slavery has been explained at 2.2: a debtor in default became the slave of his creditor; thus a hektêmoros who failed to pay his rent could slip even further down the social ladder from dependent sharecropper to chattel slave.36 Solon’s own words confirm the contemporary gulf between rich and poor Athenians that helped to motivate his reforms. In one famous fragment (Solon fr. 5 West = [Arist.] Ath. Pol. 12.1) he casts himself in the role of mediator between the dêmos and the powerful: dhvmw/ me;n ga;r e[dwka tovson gevra~ o{sson ejparkei`n, timh`~ ou[t∆ ajfelw;n ou[t∆ ejporexavmeno~: oi{ d∆ ei\con duvnamin kai; crhvmasin h\san ajghtoiv, kai; toi`~ ejfrasavmhn mhde;n ajeike;~ e[cein: e[sthn d∆ ajmfibalw;n kratero;n savko~ ajmfotevroisi, nika`n d∆ oujk ei[as∆ oujdetevrou~ ajdivkw~. I gave the people as great a prize as sufficed, neither talking away honor nor giving them more; as for those who held power and were impressive in their wealth, them too I instructed to have nothing unseemly. I stood casting my stout shield over both sides and did not allow either to gain victory unjustly.

A similar opposition appears in another fragment (Solon fr. 37.1–5 West = [Arist.] Ath. Pol. 12.5):

36 This system of hektêmoros sharecropping, whatever its ultimate origin (above, n. 17), appears actually to contradict the Ath. Pol.’s assertion that all loans before Solon’s reforms were contracted on the security of the person. It is more plausible that a small landholder would pledge his land as security before he pledged his freedom; if he defaulted, his land passed into the possession of his creditor, and horoi (“boundary-” or “mortgage-stones”) were placed around it to delimit the plot that would be returned to the debtor upon discharge of the debt (cf. Solon fr. 36.5–7 West). The debtor was allowed to remain on his land, provided that he paid a rent of one-sixth of the assessed produce to his landlord. Failure to pay rent (which will have been common in bad crop years) resulted in the outright enslavement of the debtor (together with his family: ajgwvgimoi kai; aujtoi; kai; oiJ pai`de~, Ath. Pol. 2.2). Such a two-stage system would account for both the designation hektêmoroi and the Ath. Pol.’s statements that the poor were slaves (ejdouvleuon 2.2, douleuovntwn 5.1) to the rich. Cf. Rhodes (1993) 93–94.

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dhvmw/ me;n eij crh; diafavdhn ojneidivsai, a} nu`n e[cousin ou[pot∆ ojfqalmoi`sin a]n eu{donte~ ei\don … o{soi de; meivzou~ kai; bivhn ajmeivnone~, aijnoi`en a[n me kai; fivlon poioivato. If one must rebuke the people openly, the things they now have they would never have seen with their eyes even in sleep… while those greater and more powerful would praise me and make me their friend.37

While in his surviving poems Solon tends to emphasize the economic aspect of the conflict, with a poor(er) dêmos opposed to the rich and powerful, the contents of his reforms indicate that the distinction between the nobility and the people could also be drawn so as to define the former as wealthy Athenians of aristocratic birth and the latter as everyone else, including the non-Eupatrid rich, who were the primary political beneficiaries of Solon’s legislation.38 Each version or segment of the dêmos had its own grievances: the destitute yearned for deliverance from serfdom or outright servitude, while the wealthier demanded a share in the governance of the state.39 The Ath. Pol. thus describes a continuity of vertical stasis in the late seventh and early sixth centuries: tensions between the aristocracy and the dêmos predated and motivated the appointment of Draco as lawgiver, but his laws did not succeed in allaying civil strife, which continued (and presumably intensified) until the election of Solon as eponymous archon in 594/3.40 The ancient sources credit the proverbial severity of the earlier lawgiver41 with impelling Solon to repeal the bulk of Draco’s code, leaving only the homicide laws in force;42 an equal or greater catalyst will have been Draco’s failure in addressing the very grievances of the dêmos that had led to his appointment.

37 On the connotations of fivlon see above, pp. 26–29. 38 Rhodes (1993) 89, 96. 39 Cf. [Arist.] Ath. Pol. 2.3, which conflates the viewpoints of the two groups: “For the masses (toi`~ polloi`~), the most difficult and bitter element of the constitution was their servitude (to; douleuvein), but they also chafed at its other elements, for they had a share in nothing, so to speak (oujdeno;~ gavr, wJ~ eijpei`n, ejtuvgcanon metevconte~).” The marked similarity to the Struggle of the Orders during the Roman Republic will be discussed below (p. 47). The combination, in both cases, of economic and political grievances leading to agitation for legal reform may have contributed to the rise of a later Roman tradition that the Senate dispatched three ambassadors to Athens in 454 to transcribe the laws of Solon (Livy 3.31.8; see Ogilvie [1965] 449–50; Cornell [1995] 272, 275; Forsythe [2005] 203, 209–10). 40 Cf. Stroud (1968) 75–76; contra Humphreys (1991) 18. 41 E. g., Arist. Rhet. 1400b22–23; Pol. 1274b15–18; Plut. Solon 17. 42 Contra Wallace (1989) 8–9, 19, who contends that Solon amended Draco’s homicide law as well.

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Parallels for vertical stasis Further support for the reconstruction of the sociopolitical milieu surrounding the legislation of Draco and Solon argued above may be found in a number of parallel cases in Greco-Roman antiquity in which vertical stasis motivated the composition of written legislation. Such parallels occur in Archaic Greek cities outside Athens, in the early Roman Republic, and in later Athenian history, as well as elsewhere.43 Athens was not the only city in Archaic Greece to experience discontent of the sort attested and addressed by the reforms of Draco and Solon. Hesiod, who lived in the Boeotian town of Ascra around the turn of the seventh century, reflects similar concerns in his famous complaint about “bribe-devouring kings” (basilh`a~ dwrofavgou~, Op. 38–39);44 and surely Hesiod was not the only Boeotian to chafe at the monopoly on the administration of justice, with all its potential for arbitrary abuse, exercised by the local nobility. In Athens, Draco ensured that such a monopoly could no longer obtain: his lawcode was inscribed45 and publicly exhibited for the edification of any Athenian who could read or who knew someone who could read. Significant comparisons can also be discerned between Draco and Pittacus of Mytilene.46 Appointed aisymnêtês47 by his fellow citizens in the early sixth century with a mandate to put an end to civil discord, Pittacus discharged his office by issuing laws without altering the existing constitution,48 and on these grounds Aristotle draws an explicit comparison between the legislative activity of Pittacus and that of

43 Lawgivers in the ancient Near East, for example, commonly boasted of their protection of the poor from economic oppression. Ur-Nammu, founder of the Third Dynasty of Ur (r. 2112–ca. 2095), asserts that he “establish[ed] equity in the land…the orphan was not delivered up to the rich man; the widow was not delivered up to the mighty man; the man of one shekel was not delivered up to the man of one mina” (Laws of Ur-Nammu, lines 114–68: Finkelstein in Pritchard [1958–75] 2.31–32). Hammurabi (r. 1792–1750) states that his aims included “to stop the mighty exploiting the weak” (Code of Hammurabi, prologue § 3) and describes himself as “the perfect arbitrator” (prologue § 13: cf. [Arist.] Ath. Pol. 5.1). On the laws of Ur-Nammu and Hammurabi see Kuhrt (1995) 1.64–65, 111–15. 44 For the significance of the epithet dwrofavgou~ see West (1978) 151; the translation “gift-devouring” (Gagarin [1986] 34) does not represent a significant alteration of the sense, since the context makes it clear that the purpose of the “gifts” was to affect the kings’ judgment in disputes such as the one between Hesiod and his brother Perses. On the implications of this passage for the administration of justice in Hesiod’s Boeotia see Bonner-Smith (1930) 1.44ff., 67; Gagarin (1986) 50; Solmsen (1949) 86–87. 45 On axones (IG I3 104.10, 56; Dem. 23.28 [lex], 31): for the meaning of the term see Stroud (1979). The importance of writing in curbing legal abuses has been challenged by Thomas (1996) 10–11, but Greek authors cited by Thomas herself (Eur. Suppl. 433–34; Gorgias, Palamedes fr. 11a D–K) clearly viewed written law as a check on the arbitrary administration of justice. 46 Gagarin (1986) 59–60. On Pittacus generally see RE s.v. Pittakos; OCD3 s.v. Pittacus with references. 47 On the significance of this title see Arist. Pol. 1285a24–1285b1; OCD3 s.v. aisymnetes with references. 48 Arist. Pol. 1274b18–19: Pittacus was “a craftsman of laws but not of a constitution” (novmwn dhmiourgo;~ ajll∆ ouj politeiva~).

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Draco.49 Pittacus’ reform package, like Draco’s, failed to win universal acclaim among his fellow citizens; in Pittacus’ case, however, some of the opposition is preserved in the vituperative lyrics of Alcaeus (e. g., frr. 163, 165 Page). Although the appointment of Pittacus was motivated primarily by enduring competition between shifting aristocratic factions (i. e., horizontal stasis) reminiscent of the circumstances attending the rise of Peisistratus in Athens,50 there are also indications that popular discontent inspired some of Pittacus’ reforms. According to Strabo (13.2.3), Pittacus used his position to break up monopolies on political power and grant autonomy to Mytilene (Pivttako~ d∆ eij~ me;n th;n tw`n dunasteiw`n katavlusin ejcrhvsato th/` monarciva/…kataluvsa~ de; ajpevdwke th;n aujtonomivan th/` povlei). “Autonomy” should here be understood not merely as “self-government,” but in its literal sense of “one’s own laws”; that is, Pittacus, like Draco, ended an aristocratic monopoly on legal knowledge by giving his fellow citizens written laws that belonged to them and kept them from lying at the mercy of the aristocrats’ arbitrary application of unwritten rules, as Hesiod had.51 From Archaic Greece we now turn to early Republican Rome. According to Livy, the foundational document of Roman law, the Twelve Tables, owed its existence to vertical stasis between aristocratic patricians and non-aristocratic plebeians, which has since been christened the Struggle (or Conflict) of the Orders.52 When in 462 the tribune of the plebs C. Terentilius Harsa demanded that the powers and privileges of the consuls be reduced to writing, he was rebuffed by the patres.53 But the plebeians held fast, and eleven years later a special Committee of Ten was appointed to write down the laws (decemviri legibus scribundis), resulting in the publication of the Twelve Tables (the first ten in 451, the last two in 450).54

49 Arist. Pol. 1274b15–16: “There are laws of Draco, but he enacted his laws for the existing constitution” (Dravkonto~ de; novmoi me;n eijsiv, politeiva/ d∆ uJparcouvsh/ tou;~ novmou~ e[qhken). It has long been observed (e. g., Sandys [1912] 13; Rhodes [1993] 53) that this statement directly contradicts the description of the “Draconian constitution” at [Arist.] Ath. Pol. 4. 50 For details see Campbell (1967) 285–86; Bowra (1961) 135–37. 51 RE s.v. Pittakos compares Pittacus to Peisistratus and (especially) Solon; however, as Bowra (1961) 136 observes, “[t]he achievement of Pittacus was not that, like Solon, he created a new political system, but that he restored the existing system and made it work.” 52 Jolowicz (1932) 7–23; Cornell (1995) chs. 11, 13, 15; Forsythe (2005) chs. 7–8, 10. For the parallel between the Twelve Tables and Greek legal codification see Bonner-Smith (1930) 1.68; cf. Kunkel (1973) 24; contra Thomas (1996) 10. 53 Livy (3.9.2ff.) says simply that Harsa agitated for the delimitation of consular imperium; some scholars (e. g., Scullard [1980] 87; Cornell [1995] 272) broaden the proposed charge of Harsa’s board of five to include publication of the laws. 54 Cic. de Rep. 2.61; Livy 3.33–42, esp. 33.3, 35.11, 37.4; Diod. 12.26. On the numerous problems with the traditional account of the decemviri see Ogilvie (1965) 451ff.; Cornell (1995) ch. 11. I have passed over as inauthentic Livy’s description (3.31.8) of the Roman embassy sent to Athens in 454, whose alleged mission was to transcribe the laws of Solon and familiarize themselves with the laws and customs of other Greek poleis. It should be noted that the Digest (1.2.2.4 [Pomponius, Enchiridion]) preserves an alternate tradition wherein the decemviri themselves were assigned the task of researching the laws of the Greek cities. For a detailed analysis of the content of the Twelve Tables see Jolowicz (1932) 106–91.

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Like Draco’s lawcode, the Twelve Tables proved insufficient to allay the concerns of the lower classes. Although later Roman authors may well exaggerate in their recounting of decemviral abuses,55 widespread displeasure with parts of the code is evident in the rash of corrective legislation that immediately followed its promulgation. The reaction to the Twelve Tables at Rome occurred even more swiftly than the Athenian curtailment of Draco’s laws: in 449 the leges Valeriae Horatiae further secured the rights of plebeians and safeguarded their tribunes (Livy 3.55),56 and in 445 the eleventh Table, which contained a highly unpopular ban on intermarriage between patricians and plebeians, was struck down by the lex Canuleia (Livy 4.1–6). In the absence of a Roman Solon, however, the Struggle of the Orders would continue until 287, when the lex Hortensia made laws passed by the plebeian assemblies (plebiscita) binding on the entire Roman people,57 thus bringing to an end nearly two centuries of intermittent civil strife. Returning to Athens, we find that twice in the fifth century vertical stasis served as the catalyst for legal innovation; although this topic will be addressed in detail in chapters 5 through 7, a rudimentary outline will be given here in order to adumbrate the connections between the codification movement of the late fifth century and the foundations of Athenian law laid by Draco. In 411, and again in 404, an oligarchic regime briefly seized power in Athens; each of these political convulsions was followed by a legislative impulse on the part of the restored democracy. The aftermath of the Revolution of 411 witnessed the first general recension and recodification of Athenian law since the reforms of Solon, supervised by boards of Compilers (syngrapheis) and Recorders (anagrapheis); Nicomachus, the defendant in Lysias 30, belonged to the latter group.58 Their titles suggest that the function of the anagrapheis was to (re)publish existing statutes, while the syngrapheis were charged with organizing the laws, and presumably with resolving conflicts between laws and removing statutes deemed obsolete. The anagrapheis remained active from the restoration of the democracy (410/09)59 to the establishment of the Thirty Tyrants in 404; early in this period they republished Draco’s homicide law, and their efforts are duly commemorated in the preamble to IG I3 104 (lines 1–9: below, p. 137).60 The regime of the Thirty Tyrants, Athens’ second oligarchy in under a decade, lasted for eight months in 404/3. The Thirty had their own ideas about revamping Athenian law, and so while they were in office the codification begun in the aftermath of the earlier oligarchy was suspended. When democracy once again returned 55 “The oppression of the second decemvirs [those of 450] may have been overemphasized; the necessarily somewhat harsh conditions of a primitive code may have given rise later to the view that the lawmakers were themselves harsh: were not Draco’s laws said to be written in blood?” (Scullard [1980] 87–88; emphasis mine). 56 For the (hotly) disputed details see Ogilvie (1965) 497–503; Scullard (1980) 469–71; Cornell (1995) 276–78; Forsythe (2005) 230–33. 57 Gaius, Inst. 1.3; Justinian, Inst. 1.2.4; Cornell (1995) 277, 344. 58 On this speech and the function of the anagrapheis see Todd (1996). Pace Ostwald (1986) 407, Lysias 30.2 shows that the anagrapheis were not nomothetai (below, pp. 137, 146–147): see Edwards (1999) 164 with references. 59 Todd (1996) 103. 60 Stroud (1968) 19–30.

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to Athens in 403, this time after a civil war in which democratic insurgents brought down the reigning oligarchy, the anagrapheis resumed their efforts, which continued until at least 400/399 (Lys. 30.4).61 However, one of the terms of the Amnesty of 403, which officially reconciled the “men of the Peiraeus” (members of the victorious democratic resistance) and the “men of the city” (former supporters of the Thirty), involved a fundamental modification of Draco’s homicide law. The Amnesty decreed that an Athenian could only be prosecuted for a homicide that had occurred during the late oligarchy if he had killed with his own hand; conspiracy to commit homicide, including denunciation, was covered by the Amnesty and therefore theoretically exempt from prosecution.62 Thus our final comparative examples of lawmaking resulting from vertical stasis, represented by the legislative activity of the Athenian democracy in the wake of the oligarchies of 411 and 404, bring us full circle to Draco.

DRACO’S HOMICIDE LAW So far in this chapter I have argued against positing a specific and direct link between the Cylonian conspiracy (and the poorly-grounded attendant hypothesis of endemic violence among rival aristocratic families) and the Athenians’ decision to appoint Draco to codify their law. Yet this is not to deny the existence of retaliatory killings in seventh-century Athens or their effect on Draco’s legislation. On the contrary, the provisions of Draco’s surviving homicide law indicate that the suppression of self-help in its most extreme and violent form and the subjection of homicide to the jurisdiction of the state were primary concerns of the lawgiver.

The text of the law As it survives in an Athenian inscription dated to the year 409/8 (IG I3 104.10–23), which has been significantly restored with the aid of provisions cited in Demosthenes 23 and [Demosthenes] 43, the beginning of Draco’s homicide law reads as follows.63 10

pro`to~ a[cson kai; eja;m me; ∆k ªpºronoivªaº~ ªkºtªevnei tiv~ tina, feuvgºeªn: dºikavzen de; to;~ basileva~ ai[tioªnº fovnªoº e] ªto;n aujtovcer ktevnant∆º64 e] ªbºoleuvsanta: to;~ de; ejfevta~ diagnªo`ºnªaºi. ªaijdevsasqai d∆ eja;m me;n pate;ºr e\-

61 Todd (1996) 103. 62 [Arist.] Ath. Pol. 39.1, 5–6; Andoc. 1.90; Isoc. 18.20; Dorjahn (1946); Loening (1987); Wolpert (2002b). See below, chapters 5–7. 63 On Draco’s homicide law generally see Ruschenbusch (1960); MacDowell (1963); Stroud (1968), (1979); Gagarin (1981); Tulin (1996); Carawan (1998). Other modern critical editions of IG I3 104 include Tod (1946–48) no. 87; Meiggs-Lewis (1988) no. 86; van Efferterre-Ruzé (1994–95) I, no. 02. 64 For this conjecture see above, p. 41 with n. 25.

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15

20

i e\ ajdelfo;ª~º e\ ˙ue`~, ˙avpantªaº~, e\ to;n koªluvonta krate`n: eja;n de; me;º ˙ou`toi o\si, mevcr∆ ajnefªsiºovteto~ kai; ªajnefsio`, eja;n ˙avpante~ aijdevsºasqai ejqevlosi, to;n koªluvºonta ªkºraªte`n: eja;n de; touvton mede; ˙e`~ e\i, ktºenei de; a[koªnº, gno`si de; ˙oi ªpeºntªevkonta kai; ˙e`~ ˙oi ejfevtai a[kontºa kte`nai, ejsevsqªoºn de; ˙ªoi fºrªavtore~ eja;n ejqevlosi devka: touvto~ dºe; ˙oi pentevkoªnºtªa kai;º ˙e`~ ajrªiºstªivnden ˙airevsqon. kai; ˙oi de; prºovteªrºon ktevªnºaªntºeª~ ejnº to`ªide to`i qesmo`i ejnecevsqon. proeipe`n dºe; to`i ktevnanªti ejn ajºgorªa`i mevcr∆ ajnefsiovteto~ kai; ajnefsio`, sundiovkºen de; ªkºajnefsªio;~ kai; ajnefsio`n pai`da~ kai; gambro;~ kai; penqero;º~ kai frªavºtªoºrªa~…

Axon 1.65 Even if someone kills another unintentionally, he shall stand trial. The kings are to judge him guilty of homicide66 whether he killed with his own hand or conspired to kill, and the ephetai shall decide the case. If father or brother or sons are alive, they shall all grant pardon; otherwise he who objects shall prevail. If these do not exist, relatives up to first cousin’s son and first cousin shall grant pardon, if all are willing to pardon; otherwise he who objects shall prevail. If none of these exists and he kills unintentionally, and the Fifty-One, the ephetai, pass a verdict of unintentional homicide, then let ten phratry members admit him, if they are willing; let the Fifty-One choose these men on the basis of birth. Let those who killed previously also be bound by this law. Relatives up to first cousin’s son and first cousin shall issue a proclamation to the killer in public; first cousins, sons of first cousins, fathers-in-law, sons-in-law, and phratry members shall assist in the prosecution…

Lines 11 through 23, which contain the most substantial remnants of the inscribed law, deal with four crucial elements of Athenian homicide law: jurisdiction, definition, pardon, and prosecution. These will be addressed in order below, where I shall argue that Draco’s provisions should be read as attempts to prevent retaliatory killings by superimposing the jurisdiction of the state and by regulating the participation in and process of disputes arising from homicides. It is true, and must be stated as a caveat, that no explicit evidence of retaliatory killing survives from seventhcentury Athens. However, the presence of this practice in the contemporary Greek world is clear from the Homeric poems, where killers commonly go into voluntary exile, presumably in order to avoid a more violent fate at the hands of their victims’ kin.67 Moreover, as the next chapter will demonstrate, the process of disputes arising from killings in Classical Athens preserves telling remnants of an earlier custom whereby homicides were avenged in blood.68 The dying injunction issued by a 65 See above, p. 46 n. 45. 66 Fovno~, as a term of Athenian law, should be translated “homicide,” not “murder” or “manslaughter”: see below, p. 59 with n. 4. 67 Treston (1923) 1–77; Bonner (1927) 29; Calhoun (1927) 16–17; Bonner-Smith (1930) 1.17ff.; Burn (1966) 110–11, 134–39; Wallace (1989) 29–30; contra Gagarin (1981) 5ff.; Patterson (1998) 52ff. Gagarin asserts (p. 18) that “no homicide in the epics gives rise to a vendetta”; yet the two common responses to a homicide in his catalogue are self-imposed exile (what Ruschenbusch [1960] 147 calls Flucht vor der Fehde, “flight in the face of the feud”) and compensation, both of which are methods of avoiding vendetta. Note, too, that two of the three passages cited by Gagarin as “general remarks about the treatment of homicide” in Homer mention vengeance as the normal response to a homicide (Hom. Od. 3.196–97, 23.118–22). Cf. also Stroud (1968) 71–72; Carawan (1998) 61 n. 55. 68 Cf. Cohen (1995), esp. 87–88. While, as Cohen observes, in Classical Athens the blood feud was not operative, violence remained a primary element in the pursuit of private enmity (above,

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homicide victim, the practice of carrying a spear at the funeral procession of a person who died violently and then of standing guard over the grave for three days ([Dem.] 47.69; Harpo. s.v. ejpenegkei`n dovru ejpi; th/` ejkfora/`),69 the public proclamation to the killer,70 and the right of the victim’s family to witness the killer’s execution (Dem. 23.69)71 all date from a time when homicides regularly precipitated violent reprisals. The fact that the homicides amply evidenced in the orators lead to lawsuits rather than revenge killings attests to the success of Draco’s homicide law in suppressing violent retaliation.72

Jurisdiction Draco’s law on homicide, as presented in the inscription, begins73 with an assertion of jurisdiction: “Even if someone kills another unintentionally, he shall stand trial.”74 This is to be read as a prescriptive statement: all killers are to be put on trial in accordance with the law. Draco allows no alternative: while compensation for homicide (often equated with the Greek word poinhv,75 but see below) doubtless persisted as an alternative means of settling disputes, it is not legal but extralegal.76 Some

69 70 71 72

73

74

75 76

pp. 21–25), and thus at least the potential for violent revenge always lurked in the background. Bonner-Smith (1930) 2.220. Ruschenbusch (1960) 146. Lipsius (1905–15) 603; Bonner-Smith (1930) 2.193. Cf. Dem. 54.17–19 (above, pp. 24–25), where the speaker asserts that lawsuits for slander, battery, and wounding exist in order to deter the escalation of violence, and ultimately to prevent homicide. For a summary of the debate as to whether Draco’s original law began with the clause kai; eja;m me; ∆k pronoiva~ ktevnei tiv~ tina, feuvgen, as reproduced in IG I3 104, see Gagarin (1981) ch. 6. I believe that feuvgein here means “stand trial” (cf. Treston [1923] 195; Tsantsanoglou [1972] 170–79, cited by Gagarin [1981] 30 n. 1; Cantarella [1976] 31 n. 2, cited by Gagarin [1981] 114–15 n. 8), not “go into exile” (Bonner-Smith [1930] 1.113; Gagarin [1981] 30; Carawan [1998] 33; cf. Ruschenbusch [1960] 147). The meaning “stand trial” accounts for the adverbial kaiv (even if a man kills unintentionally, he stands trial; the a fortiori implication is that if a man kills intentionally, he stands trial) and thus squares with the evidence of Athenian law in the fifth and fourth centuries, whereby intentional killers of Athenian citizens were executed, not exiled (MacDowell [1963] 110–15; Wallace [1989] 16–17; pace Gagarin [1981] 112–15). Feuvgein “stand trial” thus applies accurately to both intentional and unintentional killers, while feuvgein “go into exile” does not. Finally, Draco’s use of sundiwvkein “assist in prosecuting” (v. 21) demonstrates that, by Draco’s time, diwvkein had already acquired the juridical significance “to prosecute,” and so we may reasonably propose that its correlative feuvgein in the same document means “to defend (oneself in court), stand trial.” E. g., Calhoun (1927) 67; Ruschenbusch (1960) 136–37; Gagarin (1981) 13–14. On this question see, e. g., Glotz (1904) 314–16; Treston (1923) 221–22; Bonner-Smith (1930) 2.196ff.; Ruschenbusch (1960) 136–37; Carawan (1998) 17ff. While scholars often gloss poinê as “wergild” (e. g., Ruschenbusch ibid.; Sealey [1994] 118), the terms are not precise equivalents, since OE wergild normally denotes a blood price set by law (Wergild [with Wormald (1999) 374–78]; cf. Wihtræd 25).

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scholars have argued that Draco continued, and in fact regulated, the practice of compensation for homicide.77 But the word poinhv is conspicuously absent from the remnants of Draco’s law, and there is no solid evidence of Draco’s having established fixed wergild amounts for homicide.78 The adverb nhpoineiv does occur once: IG I3 104.37–38, heavily restored by comparison with Demosthenes 23.60 [lex], reads kaªi; eja;n fevronta e] a[gonta bivai ajdivko~ eujqu;~º ajmunovmeno~ ktevªnºei, nªepoine; teqnavnaiº: “and if in immediate self-defense he kills someone carrying or leading away his property forcibly and without justification, the death shall be nêpoinei (‘without poinê’).” What are the implications of this clause for the rest of the law: are we to understand that under Draco’s law killings are usually compensable and the stated case is an exception, or does nêpoinei simply mean “unpunished,” as it was understood by the fifth century?79 The evidence suggests that the second answer is closer to the truth. In Homer poinê usually means “punishment” or “price,” not specifically “a blood-price for homicide.”80 Hesiod mentions poinê twice (Op. 749, 755) and in neither instance means “blood-price.” Thus we need not conclude that nêpoinei in Draco’s law means specifically “without blood-price,” and the absence of positive evidence for the payment of wergild elsewhere in his homicide law suggests that in this clause Draco is not singling out the killing of a thief or rustler as noncompensable (in contrast to other killings that are compensable) but merely stating that such a killer is to be exempt from punishment.81 This is not to say, though, that the family of a homicide victim never received compensation. As a rule, compensation will presumably have been the price of pardon by the victim’s kin; but Draco’s law permitted pardon only after the killer was convicted in court, and thus any extralegal compensation was contingent upon a

77 Glotz (1904) 303; Ruschenbusch (1960) 136–37; Gagarin (1981) 15, 139 n. 74. 78 According to Pollux 9.61, “the phrase ‘to pay a 20-cattle [?penalty]’ occurs in the laws of Draco” (ka]n toi`~ Dravkonto~ novmoi~ ejsti; ajpotivnein eijkosavboion). Some (e. g., Ruschenbusch [1960] 137, Gagarin [1981] 139 n. 74) see in this statement evidence of wergild in Draco’s homicide law, but the absence of corroboration in either the remnants of the inscribed law or the descriptions of the law by Classical orators suggests that Pollux cited this clause not from Draco’s homicide law but from a part of Draco’s code abrogated by Solon. The expression of a fine in terms of cattle supports a pre-Solonian date, since Solon leveled fines in drachmas (referring to standard weights of silver, not coinage, which would be introduced to Athens by Peisistratus). Primitive economies among Indo-European peoples commonly employed cattle as a standard medium of exchange: both Old English ([email protected], the ancestor of Modern English fee) and Old Norse (fé) used the same word for “cattle” and “money” (cf. the German cognate Vieh “cattle”); Latin pecunia “money” derives from pecus “herd,” and the lex Aternia Tarpeia of 454 apparently limited the fine that a Roman magistrate might impose without possibility of appeal to 30 cattle and 2 sheep (Festus s.v. peculatus, with Zetzel [1995] 218). 79 For varying interpretations of the provision nêpoinei tethnanai (and of poinê-words in general) see Velissaropoulos-Karakostas (1991); Carawan (1991). The Anglo-Saxon lawcodes exhibit striking parallels to this Athenian formula: e. g., Wihtræd 25 (licge buton wyrgelde); Ælfred 1.5 (liccge he orgylde). 80 Treston (1923) 28ff.; pace Gagarin (1981) 13. 81 Treston (1923) 195; Bonner-Smith (1930) 1.114; Ruschenbusch (1960) 136; Stroud (1968) 57; Gagarin (1981) xvii; contra Humphreys (1991) 23 with n. 22.

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prior judicial determination.82 In effect, by bringing all homicides under the jurisdiction of the state, Draco outlawed retaliatory killing.83 While we have no reliable means of gauging the immediate success of this endeavor,84 the Attic orators attest that by the late fifth century prosecution was not only the legal but the customary response to homicide.

Definition The second sentence of Draco’s law recognizes two types of homicide, killing with one’s own hand and conspiracy to kill, and defines them as legal equivalents. “The kings85 are to judge [a person] guilty of homicide whether he killed with his own hand or conspired to kill, and the ephetai shall decide the case”; that is, the “ownhand” (aujtovceir) perpetrator and the person who conspires to kill (oJ bouleuvsa~) incur equal liability. Draco’s definition of homicide should be read proscriptively: it defines as killers and exposes to the resulting legal liability only those individuals who commit or conspire to commit a homicide. (On the possibility of a conditional exception presented by androlêpsia see the Appendix.) By implication, the killer’s kin are immune from punishment, provided they did not conspire with him. This rule stands in direct contrast to the principle applied in the recent trial and condemnation of the Alcmaeonids, when the entire Alcmaeonid genos was held responsible and punished for the role of individual members in the slaughter of Cylon’s partisans. Draco’s homicide law thus rejects the doctrine of vicarious liability employed against the Alcmaeonids, which assumes complicity on the basis of kinship and assigns legal responsibility accordingly, and prescribes in its stead a direct individual standard of liability that embraces only those persons who kill with their own hands or conspire to kill and excludes all others, including members of a killer’s family who do not materially aid or abet the killing.

82 It remained possible, of course, for a killer to pay off his victim’s family so as to avoid prosecution (Harpo. s.v. uJpofovnia: see chapter 2). Again, though, such a solution was extralegal, and possibly illegal (MacDowell [1963] 9). 83 Cf. Bonner-Smith (1930) 1.55–6, 2.193. Wallace (1989) 32 holds that “the trial of homicides at Athens…could be compulsory by the early seventh century,” and thus before Draco’s legislation; as evidence for this assertion he cites the survival of the Athenian king in the historical office of basileus and the antiquity of the Prytaneion court (below, p. 60). These observations, however, suggest only that trials for homicide existed in pre-Draconian Athens (cf. the trial of the Alcmaeonids: see chapter 1), not that such trials were compulsory. 84 It is just possible that the popularity of Draco on Aegina, which proved fatal according to the Suda (see Figueira [1993]), resulted from the success of his homicide law at Athens during his lifetime; but the Suda’s entire account of Draco’s demise clearly invites skepticism, to say the least. 85 For the debate over the significance of the plural (which has no bearing upon the present analysis) see Gagarin (1981) 46–47; cf. Sealey (1994) 113–15, 117–19.

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Pardon Draco’s regulations governing the granting of pardon in the aftermath of a killing occupy lines 13 to 19 of the inscription. The right to pardon the convicted killer falls in succession to three groups defined by increasing remoteness of kinship with the victim. The first group eligible to pardon the killer comprises the victim’s father, brothers, and sons. In the absence of these, the right to pardon devolves upon a second group, which includes all the victim’s male relatives within the degree of descendant first cousin once removed (“first cousin’s son”).86 Finally, if the victim has no living kinsmen within this degree, ten members of the victim’s phratry (a large “brotherhood” of putative kin, many of whose members had no demonstrable mutual kinship ties)87 may pardon his killer; these ten, like the special jury appointed to try the Alcmaeonids for the slaughter of Cylon’s partisans, are to be selected on the basis of (noble) birth (ajristivnden).88 This last group may issue a pardon only if the ephetai have rendered a determination of unintentional homicide; the absence of a similar express restriction earlier in the pardon section implies that Draco empowered the first two groups (that is, the victim’s kin down to the degree of descendant first cousin once removed) to pardon both intentional and unintentional killers.89 In the first two groups (and possibly in the third) unanimity is required for pardon. A single adverse vote blackballs the killer and blocks the pardon: a rule that “he who objects shall prevail” (to;n koluvonta krate`n) is stated for the first group (the victim’s father, brothers, and sons) at line 14 and for the second group (all the victim’s kin within the degree of descendant first cousin once removed) at line 16. This unanimity requirement presents something of a paradox, as it enforces the solidarity of the group by asserting the rights of the individual.90 The rule protects 86 Here (v. 15) and at v. 21 I translate ajnefsiovteto~ as “first cousin’s son,” i. e. descendant first cousin once removed (cf. Gagarin [1981] xvi–xvii; Stroud [1968] 6–7). Humphreys (1991) 25–26 argues that the word means “uncle,” but at v. 22 Draco uses ajnefsio`n pai`da~ as the apparent equivalent of ajnefsiovteta~; and [Dem.] 47.72 shows (pace Humphreys, ibid. n. 34) that the fourth-century equivalent of Draco’s ajneyiovth~ is ajneyiadov~, “first cousin’s son.” 87 Lambert (1998); Patterson (1998) 89. In the Classical period, and presumably earlier, members of an Athenian phratry claimed common patrilineal descent from a putative male ancestor (Lambert [1998] 8). The antiquity of the institution is proven by the fact that the Greek word for “phratry member” (fravthr) is a reflex of Proto-Indo-European *bhráH2ter-“brother,” while the Greek word for “brother” (ajdelfov~) is not: Sihler (1995) 147; cf. Lambert (1998) 268–69. 88 Cf. [Arist.] Ath. Pol. 1.1; Plut. Solon 12.3 (above, p. 38). 89 Ruschenbusch (1960) 138; Gagarin (1981) 50–51. The possibility of pardon for intentional killers does not invalidate the argument above (p. 51 n. 74) that Draco penalized intentional homicide with death: an intentional killer might avoid punishment by voluntarily going into exile either before trial or (at least in the Classical period) before delivering his second defense speech at trial; this provision of Draco’s law makes such people eligible for pardon by their victims’ kinsmen (but not by phratry members). 90 On kin solidarity in the pardon provisions of Draco’s homicide law see especially Glotz (1904) 309–12; cf. Gernet (1982) 109, 222. Glotz compares with the Draconian requirement statutes of the Salian and Ripuarian Franks governing pardon and compensation (Lex Salica 57.5, on grave robbery: “Let him be wargus (i. e., expelled from the same region [as inhabited by the victim’s kin]) until such time as the relatives [of the victim] agree to it; and let these same rela-

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the pardoned killer from violent retaliation by ensuring that all relatives of the victim whom the law (and, presumably, society) deems relevant have consented to his pardon. A unanimous pardon thus allows the killer to return to Attica with the reassurance that his victim’s family has forsworn revenge, while a single dissenting vote, which reflects a continuing desire for vengeance, blocks the pardon and keeps the killer in exile and out of contact with any likely avengers. Draco’s requirement of unanimity as a condition of pardon thus constitutes a precautionary measure: exiled killers are not to be readmitted to Attica unless and until their safety can be assured to the greatest extent possible. This provision not only protects the individual killer but benefits the state as a whole by minimizing the occurrence of retaliatory killings within its borders.

Prosecution Under Draco’s law, the family of a homicide victim signals its intent to prosecute the killer by means of a proclamation made to the killer in public by the members of the second group discussed above; namely, the victim’s kinsmen within the degree of descendant first cousin once removed. Then follows the provision that “first cousins, sons of first cousins, fathers-in-law, sons-in-law, and phratry members shall assist in the prosecution (sundiovken).” Unfortunately, the exact function denoted by sundiovken is unclear: does the law make fathers-in-law, sons-in-law, and phratry members equal partners in the prosecution alongside relatives within the degree of descendant first cousin once removed, or do they play a secondary role?91 In any assessment of the significance of sundiovken, the repetition of first cousins and sons of first cousins, who are included in the proclamation group, presents a complicating factor. By the fourth century, Athenians interpreted Draco’s law as dictating that the right to prosecute ended with descendant first cousins once removed ([Dem.] 47.71–72), but later Athenian practice is only suggestive, not conclusive, as to the lawgiver’s original intent. In light of the Classical diômosia (below, p. 61), and on the basis of comparison with early Germanic law, I would propose that these “assistant prosecutors” may have functioned as “oath-helpers” (Eideshelfer) who swore to the guilt of the defendant but did not prosecute the lawsuit;92 Draco may also tives be asked whether he should be allowed to remain within the country” [Wargus sit (hoc est expulsus de eodem pago) usque dum parentibus convenerit (et ipsi parentes rogati sint pro eo, ut liceat et infra patriam esse)]; Lex Ribuaria 85: “Let him be wargus (i. e., expelled) until he makes satisfaction to the relatives” [Wargus sit (hoc est expulsus) usque dum parentibus satisfaciat]). Cf. Gernet (1917) 124–29. 91 Owing to the difficulty of interpreting this clause, scholars have often been content simply to translate sundiovken, and sometimes to draw some cautious conclusions. See, e. g., Gagarin (1981) 55; MacDowell (1963) 18: “Relatives outside this category had to share in the prosecution; this presumably means that they were not required to initiate any legal action, but only to give any support for which the closer relatives asked them.” Rubinstein (2000) 87 suggests that sundiovken may be potential rather than jussive, translating “must (may?) share in the prosecution.” 92 Cf. Glotz (1904) 304–5; Parker (2005) 74; Thür (2005) 165.

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have empowered fathers-in-law, sons-in-law, and members of the victim’s phratry as prosecutors in default of kin within the degree of descendant first cousin once removed. But these are merely conjectures. In his regulations on prosecution, just as in those concerning pardon, Draco enforces the solidarity of the victim’s family.93 While the granting of pardon necessitates unanimity at the end of the legal process, the rules of prosecution require solidarity at its outset: Draco mandates that all of the victim’s male relatives “up to first cousin’s son and first cousin shall issue a proclamation to the killer.” While Draco may simply have assumed that the kin of a homicide victim would seek vengeance as a rule, and therefore may have failed to envision a situation where families were divided over the issue of prosecution, it is far more likely that the requirement of kin solidarity in announcing a prosecution reflects the lawgiver’s resolve that the victim’s family should act as a unit. The victim’s entire kin within the specified degree must issue a claim signaling their intent to prosecute – a public (ejn ajgora`i)94 advertisement that they will seek redress through the courts rather than violent retribution.95

Conclusions: The aims of Draco’s homicide law Considered together, Draco’s provisions on jurisdiction, definition, pardon, and prosecution indicate that three paramount concerns motivated the lawgiver. The first was to ensure that homicides resulted in trials, not in revenge killings on the one hand or extralegal settlement on the other. Even in the case of an unintentional killing, and by implication in the case of an intentional killing, the killer had to be prosecuted in court. Draco intended this assertion of state jurisdiction to curb violent self-help and to rechannel into the courts the desire for vengeance felt by the kin of a homicide victim; and, whatever its immediate efficacy, by the time of the Attic orators it fulfilled its function admirably. Draco’s second concern was to limit participation in legal disputes arising from a homicide, both on the side of the victim and on the side of the killer. On the vic93 Glotz (1904) 304–6. 94 The lack of a definite article and the numerous Homeric parallels suggest that, when Draco wrote ejn ajgora`i, he meant “in public,” possibly “at a public assembly,” but not “in the (Athenian) agora.” Archaeological evidence also weighs against the latter interpretation: in the seventh century, the site of the future Classical Athenian agora was occupied by private houses and burials (Camp [1986] 33–34). Cf. Ruschenbusch (1960) 144 (“in einer Volksversammlung”); Fornara (1983) no. 15 (“either ‘in the marketplace’ or ‘in the Assembly’”); contra BonnerSmith (1930) 1.114; MacDowell (1963) 17; Stroud (1968) 6; Gagarin (1981) xvii (all “in the agora”). 95 In Icelandic law, too, a proclamation to the killer was the first step in prosecution: after Hrafnkel killed Einar for riding his horse Freyfaxi despite explicit warnings that death would result, Einar’s first cousin (FaBrSo) Sam “rode to a farm and, gathering some people, proclaimed Hrafnkel responsible for the killing” (lýsir víginu…á hendr Hrafnkeli: literally, “proclaimed a killing against Hrafnkel”: Hrafnkels saga Freysgoða 7). Sam subsequently issues Hrafnkel a summons for homicide (§ 7), and the case goes to trial (§ 10). Cf. Laxdæla saga 50.

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tim’s side, only stated relatives of the victim (and possibly members of his phratry) were empowered to prosecute the killer,96 and they had to present a united front in doing so. After a conviction of unintentional homicide, pardon might be granted by one of three expanding groups, depending on which living kin the victim left behind, but Draco gave priority to a small group of the victim’s nearest kin. On the killer’s side, the only people liable to prosecution for homicide were those who killed with their own hands and those who conspired to kill; no one else – no other member of the killer’s kin – incurred legal liability. The lawgiver thus created a doctrine of individual liability in direct contrast with (and perhaps as a specific reaction to) the recent precedent of the Alcmaeonid case. Here, in fact, Draco set a new precedent:97 as noted above (p. 42), the Draconian standard of individual liability would become the rule in Athenian law, with very few exceptions. Draco thus not only shifted the intended venue of disputes arising from a homicide from the streets and fields of Attica to the courts; he also limited participation in these disputes by placing constraints on both prosecution and liability. Draco’s third and final concern was to mandate solidarity among the victim’s family, and thereby to decrease further the impulse to retaliate for a homicide with a revenge killing. Under Draco’s law, the victim’s kin must prosecute and pardon as a group, thereby signifying their agreement to obey the lawgiver’s regulations from the beginning of the legal process to the end. Since a single maverick relative of the victim could block the killer’s pardon and keep him out of Attica, Draco’s requirement of unanimity for pardon meant that those killers who secured pardon had the best chance of personal safety upon their return. As we have seen, Draco’s lawcode as a whole was deemed a failure: it proved deficient in addressing the concerns of the dêmos and therefore survived only twenty-seven years, until the archonship of Solon. But while Draco may have failed in the bulk of his measures, his homicide law was a singular success. Solon, who abolished the rest of Draco’s code, deemed its homicide laws worthy of preservation, and these not only remained in effect down through the end of the Classical period but were the pride of the Athenian people: thus, for example, a fifth-century litigant could tell an Athenian jury that Draco’s provisions on homicide were “the best and most hallowed of all laws” and had “always been the same regarding the same things” (Ant. 5.14: below, p. 135). Draco’s homicide laws survived as long as they did because they achieved their most important goal: disputes resulting from killings were successfully redirected into the Athenian courts, which provided victims’ families with a means of obtaining vengeance that was both less risk-laden and more socially acceptable than retaliatory killing.

96 Evjen (1971) 259; Gagarin (1979) 304; Kidd (1990) 216; contra MacDowell (1963) 17–22. 97 While Athenian law had no doctrine of binding precedent, citations of precedent and arguments that the verdict in the instant lawsuit would set a precedent were employed by Classical Athenian litigants with fair frequency and were clearly expected to have persuasive effect (see Lanni [2006] 118–28, esp. 118); therefore, pace Lanni, I would ascribe to the Athenians a doctrine – or at least a concept – of persuasive precedent, even if Athenian litigants did not apply precedents as rigidly or systematically as a modern lawyer would (Lanni [2006] 119).

CHAPTER 2 AVENGING A HOMICIDE IN CLASSICAL ATHENS As demonstrated in the previous chapter, Draco enforced the solidarity of the family in the prosecution and pardon of a killer and defined the relevant kin groups as comprising relatives of the victim within the degree of descendant first cousin once removed and, in some cases, further kin, both actual and fictive. This chapter analyzes the normative course of a dispute arising from a homicide in the fifth and fourth centuries, as evidenced by records of contemporary litigation in the Attic orators and by notices given by later lexicographers, who had access to a larger corpus of Attic oratory than that which survives today. The fact that the majority of the evidence in the ensuing chapters comes from forensic speeches necessitates a caveat. By its very nature, forensic oratory is a partisan genre: the men who wrote and delivered these speeches did so with the purpose of winning lawsuits, not providing disinterested statements of fact or giving full and accurate interpretations of Athenian law. We therefore cannot expect Athenian litigants to state the complete and impartial truth. However, while not every statement made in court represents the factual truth, the constraints of the genre require that litigants present at least the normative truth; that is, the representations made by speakers had to be convincing, or at least plausible, to large juries of their fellow citizens. Forensic oratory is, therefore, a reliable source for contemporary societal norms, practices, and expectations. Moreover, while Athenian litigants might offer partisan, and sometimes even blatantly false, interpretations of the laws relevant to their cases, verbatim citations of the law (when textually sound), as well as paraphrases, can generally be presumed to be accurate: litigants were constrained from falsifying laws not only by the presumption that their opponents and juries had the same access to the law as they did but also by the threat of a statutory death penalty for citing nonexistent laws ([Dem.] 26.24).1

HOMICIDE IN CLASSICAL ATHENS Since the remainder of this study will examine conflicts arising from killings in Athens during the Classical period, we will begin with a rudimentary outline of the laws and customs regarding homicide current in fifth- and fourth-century Athens, in order to provide a summary background for the material that follows.2 1 2

On the reliability of Athenian forensic oratory as historical evidence see Todd (1990b); Worthington (1994a); on oratory as evidence for Athenian morality see Dover (1994) 8–14. For fuller expositions of this topic see MacDowell (1963) (the definitive study); Gagarin (1979); Hansen (1981); Tulin (1996). Other useful summaries can be found in MacDowell (1978) 109– 22; Todd (1993) 271–76; Gagarin (2002) 135–39.

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The dikê phonou and the homicide courts By the fifth century, the legal action for homicide instituted by Draco was formally titled the divkh fovnou.3 In keeping with Draco’s law, those who killed with their own hands and those who conspired to kill bore equal liability (IG I3 104.11–13: above, p. 53; Andoc. 1.94). In the case of a free victim, the right to prosecute was restricted to relatives of the victim within the degree of descendant first cousin once removed ([Dem.] 47.72; cf. IG I3 104.20–23: above, p. 55); in the case of a slave victim, the right to prosecute belonged to the slave’s owner ([Dem.] 47.70). Two public proclamations were issued in the wake of a killing: one by the victim’s relatives at his funeral, and another by the member of the board of archons known as the basileus, who superintended the system of homicide courts, after he registered the lawsuit to be brought by the kinsmen of the victim. Then followed three preliminary hearings (prodikasiai) held in successive months and presided over by the basileus; in the fourth month the lawsuit went to trial (Ant. 6.42). The trial took place in one of five special homicide courts, depending on the circumstances of the case, and in particular the intent of the killer4 and the status of the victim (Dem. 23.65–80; [Arist.] Ath. Pol. 57).5 When the defendant was charged with intentionally killing an Athenian citizen, the case was heard at the Areopagus, with the entire Council of the Areopagus serving as the jury. Conviction resulted in 3

4

5

Nineteenth-century scholars, influenced at least as much as by the assumption that the Athenians must have considered homicide a “crime” as by the occurrence of a graphê phonou in the list of graphai at Pollux 8.40, commonly posited the existence of a graphê phonou in Classical (and Archaic) Athens (e. g., Beauchet [1897] 2.453); while this theory continues to have its adherents (Hansen [1981] 13–17), it is at the present time generally (and rightly) rejected (e. g., Harrison [1968–71] 2.9; Gagarin [1979] 322–23 with references). Athenian homicide law recognized only the presence or absence of intent and did not distinguish between degrees of intent. A killer was either eJkwvn, “intentional,” or a[kwn, “unintentional”; accordingly, a homicide was either intentional (eJkouvsio~ fovno~) or unintentional (ajkouvsio~ fovno~). These terms denote the presence and absence of bare intent, not “premeditation” or “malice aforethought” (Loomis [1972]; contra Carawan [1998]; see also Rickert [1989]). Throughout this study, therefore, fovno~ is translated as “homicide,” not “murder” or “manslaughter.” The Athenian distinction between intentional and unintentional killing does not correspond to the common-law distinction between murder and manslaughter in either their original significance or their present definitions. “Murder” (Old English and Old Norse morð, Medieval Latin murdrum) originally signified a homicide that the killer kept secret (PollockMaitland [1898] 2.458 n. 1, 486 with n. 3; Grágás K § 88; Byock [2001] 225–26). If the killer took credit for the deed, the killing was called “(simple) homicide” (Medieval Latin [simplex] homicidium) in England, or víg (Old Norse, commonly translated “manslaughter”) in Iceland (e. g., Laxdæla saga 49, 65; Hrafnkels saga Freysgoða 7). Murder was considered the more serious offense, owing to the killer’s act of concealment. For a comparison of the development of English homicide law with the law of Draco see Evjen (1971) 260–62. At present, the element that usually distinguishes murder from manslaughter in the common law is “malice aforethought” (e. g., California Penal Code § 187), which is (at least in theory) a more restrictive term than “intent.” Exactly how many of these courts originated with Draco (or perhaps even earlier) is a subject of continuing controversy: see, e. g., Gagarin (1981) 125–37; Wallace (1989) ch. 1; Carawan (1998) 6–17.

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a mandatory death sentence.6 When the defendant was charged with unintentionally killing a citizen, or with killing a non-citizen (regardless of his intent), trial occurred at the Palladion.7 The jury consisted of the fifty-one ephetai instituted by Draco,8 and conviction resulted in a penalty of exile, with the possibility of pardon by the victim’s kin if the killing was ruled unintentional. A defendant who asserted that he had committed a lawful killing (a category that included unintentional killing in an athletic contest, killing a highway robber in self-defense, unintentional infliction of a friendly-fire casualty in wartime, and the slaying of a man caught in bed with the killer’s wife, mother, sister, daughter, or concubine kept for the purpose of procreating free children: Dem. 23.53 [lex]) received trial at the Delphinion. The ephetai served as the jury, and the penalty enforced upon conviction (that is, when the jury rejected the defendant’s plea of lawful homicide) depended on the intent of the killer and the status of the victim and was determined in accordance with the rules governing sentencing at the Areopagus and Palladion courts: defendants found guilty of intentionally killing an Athenian citizen were executed, those convicted of intentionally killing a non-citizen were exiled without possibility of pardon, and those convicted of unintentional homicide were exiled with the possibility of pardon. Defendants who stood accused of committing a homicide while already in exile were tried at Phreatto in the Peiraeus; since exiled individuals were barred by definition from setting foot on Attic soil, defendants at the Phreatto court pled their cases from boats moored to shore. The ephetai served as the jury here as well, and the penalty upon conviction was decided on the same basis as in the Delphinion court. Finally, non-human killers, both animals and inanimate objects, were tried at the Prytaneion by a jury consisting of the basileus and the four “tribe-kings” (phylobasileis). Convicted animals were punished by execution, while convicted inanimate objects were exiled by being thrown across the Boeotian border; the rationale behind the difference in sentencing presumably lay in the fact that animals can conceive intent, while inanimate objects cannot.9

6

7

8

9

This has long been the majority opinion (e. g., Ruschenbusch [1968] 13–14; MacDowell [1963] 110–15; Carawan [1998] 147). Gagarin, however, maintains ([1981] 111–15, [2002] 136) that exile was an alternative sentence. There is some ambiguous evidence suggesting that, in the fourth century, the Palladion court may have been manned in some instances by dicastic jurors rather than by the ephetai (Isoc. 18.52–54; [Dem.] 59.9–10: see, however, MacDowell [1963] 53–57; Harrison [1968–71] 2.40– 41; Todd [1993] 82). In the absence of clear evidence as to their identity (apart from the requirements stated in Photius and the Suda s.v. ejfevtai that they be at least fifty years of age and possess a reputation for justice), it is commonly (and plausibly) suggested that the ephetai were, at least in the Classical period if not in Draco’s time, a subcommittee of the Council of the Areopagus (MacDowell [1963] 48–57, [1978] 27–28, 117; Harrison [1968–71] 2.37–42; Todd [1993] 81–82). The comparison of convicted inanimate objects to Anglo-Saxon (and later English) deodands (e. g., Bonner [1927] 43) is not strictly apt. As their name implies, deodands (Deo danda, “things to be given to God”) were surrendered and “devoted...to pious uses” (see Pollock-Maitland [1898] 2.473–74), while the treatment of inanimate objects convicted of homicide in Classical Athens followed the analogy of the unintentional human killer, with no sacral aspect implied.

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A homicide trial at any of these courts consisted of three stages: oaths, speeches, and verdict (Dem. 23.71). The trial opened with a special oath, the diômosia, which was administered only in trials for homicide and intentional wounding (Dem. 23.67–69; Lys. 3.1, 4.4). Both the prosecutor and the defendant, along with their witnesses, swore this oath, by which they called down destruction upon themselves and their houses should they lie. After the oaths came the speeches; each side gave two, in the order prosecution, defense, prosecution, defense (as illustrated in Antiphon’s Tetralogies). At any point before commencing his second speech, the defendant could abandon his case and enter voluntary exile without hindrance (Ant. 5.13; Dem. 23.69). Upon conclusion of the speeches, the jurors cast their votes, with a bare majority sufficing to convict.

The use of apagôgê for homicide After surveying the five special Athenian homicide courts, Demosthenes notes, “If one is ignorant of all these, or if the time in which each of these things had to be done has elapsed, or if for some other reason he does not wish to prosecute in these ways, and he sees the killer circulating in the temples and around the agora, he may arrest him (ajpavgein) and take him to the prison” (Dem. 23.80). Summary arrest (ajpagwghv) for homicide existed as an alternative to the dikê phonou from the last quarter of the fifth century;10 but by the early fourth century, at least in some cases, in order to exercise the option of apagôgê the prosecution was required to declare that the defendant had been apprehended “in the act” (ejp jaujtofwvrw/: see chapter 7). Any willing Athenian citizen could mount an apagôgê (Dem. 24.105 [lex]); this feature further distinguished apagôgê from the dikê phonou, which was available only to relatives of the victim. The procedure employed in an apagôgê differed radically from that of the dikê phonou. A person arrested by apagôgê on suspicion of homicide was first taken to the Eleven, the body of magistrates that superintended the Athenian prison and oversaw executions. If the suspect confessed, he was immediately executed; if he disputed the charge, he was tried in an ordinary jury-court (dikastêrion), not in one of the dedicated homicide courts that heard dikai phonou (Aeschin. 1.90–91; [Arist.] Ath. Pol. 52.1). At a jury-trial arising from an apagôgê, no diômosiai were sworn (Ant. 5.11–12), each side only spoke once, and conviction resulted in a mandatory death sentence, regardless of the circumstances of the case. If, however, the prosecutor failed to garner one-fifth of the jury’s votes, he was fined 1,000 drachmas as punishment for mounting malicious litigation ([Andoc.] 4.18).

10 Ant. 5.9, 85 (below, pp. 122–131). The definitive study of apagôgê is Hansen (1976); the use of apagôgê for homicide is discussed in detail below in chapters 4, 5, and 7.

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Religious aspects of homicide While Draco’s law displays no awareness of any sacral aspect of homicide,11 by the fifth century the Athenians conceived of homicide as an offense that carried integral and fundamental religious ramifications. We have already encountered some indications of the Classical Athenian connection between homicide and religion, such as the administration of the homicide courts by the basileus, who was also the official in charge of state religious observances, and the diômosia sworn by the litigants and witnesses at homicide trials. In fact, the supernatural consequences attached to homicide began with the killing itself. According to Classical Athenian dogma, the spirits of those who died unnatural deaths demanded retribution; the Attic orators and tragedians use various terms, including ajlithvrioi, ajlavstore~, and prostrovpaioi, to designate these restless “spirits of vengeance” whose wrath afflicted the living who failed to avenge them.12 Vengeance was also associated with the mythical beings known as the Furies (∆Erinuve~). These figures possessed a fluid identity: sometimes the Furies are personalized, with the individual homicide victim said to possess his or her own Furies, while at other times they are personified as a permanent triad of divinities with discrete identities and names. According to either conception of their identity, the Furies’ primary function was to pursue killers and exact vengeance: one of the personified Furies was named “Avenger of Homicide” (Tisifovnh, Apollod. 1.1.4). The religious character of homicide in Classical Athens is further evidenced in the consequences of a killing for the victim’s kin, for the killer, and for the community as a whole. For the relatives of a homicide victim, the requirements of piety dictated that they seek vengeance upon the killer; with the practice of retaliatory killing a distant memory by the late fifth century, prosecuting (and hopefully convicting) the killer in court appears in the Attic orators as the normative method of discharging this obligation. Homicide prosecutors commonly assert that similar considerations of piety should impel the jurors in their lawsuits to convict the defendants; conversely, should the jurors vote to acquit, they risk incurring the wrath of the victim’s spirit (Lys. 12.99–100; 13.96). Moreover, it was accepted dogma in Classical Athens that the act of killing brought a ritual pollution (miasma) upon the killer,13 and that this pollution could be transmitted to anyone who associated with the killer, especially in an enclosed space such as a building or a ship: as one homicide defendant puts it, “I think you know that many men with unclean hands or having some other miasma have boarded ship and destroyed, along with their own 11 Gagarin (1981) 164–67; cf. MacDowell (1963) 142ff. 12 E. g., Ant. 2 g 10; 4 a 3–4, b 8; Aesch. Ag. 1501; Pers. 354. I prefer the rendering “spirits of vengeance” (cf. Sommerstein [1989] 124) to “avenging spirits” (e. g., LSJ9 s.v. ajlavstwr, ajlithvrio~ II), since the point is that these spirits demand vengeance rather than accomplishing it. ∆Alithvrio~ and ajlavstwr can also be used of the killer who arouses such spirits (e. g., Lys. 13.79: below, p. 209). 13 See especially Parker (1983). Treston (1923) 142ff. postulates that the oracle of Apollo at Delphi was responsible for the rise of the Athenian pollution doctrine, but see Parker (1983) 138– 43.

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lives, men who were pious in religious matters.” Polluted individuals were also believed to prevent auspicious sacrifices. Accordingly, a defendant might posit the absence of such occurrences as presumptive evidence of his innocence: if all the sea voyages he has taken and all the sacrifices he has attended have turned out wonderfully, he must not be guilty of homicide (Ant. 5.82–83). To prevent the possible communication of miasma, homicide trials by dikê phonou (but not by apagôgê) took place in the open air “so that the jurors might not go into the same place as those with unclean hands, and so that the prosecutor of the dikê phonou might not be under the same roof (oJmwrovfio~) as the killer” (Ant. 5.11). While it is possible that Antiphon is engaging in redundancy and the concern about a prosecutor’s being “under the same roof” with his defendant arose from the same potential transmission of pollution as would affect the jurors, additional considerations may have contributed to this homôrophios doctrine: as Douglas MacDowell observes, “sharing a roof was a symbol of friendship...; to refuse to share a roof with a killer may have meant only that the killer was an enemy, from whom vengeance was to be exacted. So...either vengeance or cleansing may have been the dominant motive.”14

Penalties for homicide In the Classical period, as we have seen, the penalties for homicide remained as they had been determined by Draco: either death or exile, depending on the circumstances of the killing.15 The death penalty, which was aggravated by confiscation of the killer’s property, was administered in one of two ways. The first was apotympanismos (e. g. Lys. 13.67–68), whereby the condemned man was fastened to a board (tympanon) and left to die.16 The second (and better-known) method of execution was poisoning: the convicted killer was forced to drink a potion of hemlock, whose effects are graphically described by Plato (Phaedo 117–18) in his account of the death of Socrates, who received a capital sentence in 399 for impiety and “corrupting the youth” (below, pp. 149–150). The grounds on which the method of execution was determined are unknown. When a convicted killer was sentenced to exile, he had to leave Attica by a fixed route and within a specified time (Dem. 23.72). Intentional killers of non-citizens sentenced at the Palladion incurred lifelong exile (Dem. 21.43), while unintentional killers were eligible for pardon by the families of their victims (IG I3 104.13–16: above, pp. 54–55). Upon a grant of pardon, the killer could only return to Attica after sacrificing, undergoing purification, and satisfying certain other requirements 14 MacDowell (1963) 145–46. 15 Gradation of penalties for homicide according to the status of the victim appears commonly in early law, while strict talio is rare. Compare, e. g., Code of Hammurabi 207–8, 209, 211, 213; among the Anglo-Saxon lawcodes see Æthelberht 26; Ine 23.3, 32–33, 70; Wergild passim; for Icelandic law see Grágás K §§ 86, 111, and the section entitled Baugatal (“Ring List”: K § 113). 16 See Keramopoullos (1923); Gernet (1924); Todd (2001).

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(Dem. 23.72). Those who entered exile voluntarily before the conclusion of their lawsuits were never allowed to return to Attica.17 Any exile who violated the terms of his banishment could be killed with impunity, or arrested and prosecuted (IG I3 104.30–31; Dem. 23.28, 51 [leges]), by anyone who caught him. But exiles who stayed away from the proscribed places were protected by the law, and it was illegal forcibly to convey an exile into Attica (IG I3 104.26–29; Dem. 23.37, 44 [leges]) so as to render him liable to punishment for violating the terms of his banishment.

COMMENCING ENMITY

As observed above (p. 29), homicides give rise to a special type of enmity in which the wronged party cannot avenge himself and must rely upon others to do so for him. In most Athenian homicide cases, death was presumably fairly immediate, and consequently the victim’s family had to proceed without express instructions from the decedent. In some instances, however, the victim had sufficient time, either after a lethal assault or poisoning or before his execution, to deliver to his relatives and friends instructions either mandating or prohibiting vengeance. The remainder of this chapter will examine first how individuals facing death signaled either commencement or abjuration of formal enmity against their killers, and then how their surviving relatives and friends proceeded upon their deaths.

The dying injunction Deathbed scenes narrated by Athenian litigants illustrate the custom whereby an Athenian facing certain death would issue a dying injunction, which effectively amounted to his final act of self-help. Litigants denote this act by means of the verb ejpiskhvptein, “to enjoin.”18 Dying men commonly made oral wills with the intent of disposing of their property and/or preserving their family lines (oikoi) by testamentary adoption if they had no living legitimate sons.19 One of Demosthenes’ “guardian speeches” provides a good example of this phenomenon (Dem. 28.15–16). On his deathbed, Demosthenes’ father, also named Demosthenes, summoned three men to serve as trustees of his estate: two nephews, Aphobus and Demophon, and a friend, Therippides. Also in attendance was Demon, the brother of Demosthenes senior, who was presumably present to witness his dying injunction. In his injunction, Demosthenes senior entrusts his minor son and daughter and his wife to the care of his three trustees. He betrothes his daughter to Demophon and his wife to Aphobus, providing 17 Dem. 21.43, with MacDowell (1963) 113–15. 18 Ant. 1.1, 29–30; Lys. 13.4, 41–42, 92, 94; Isae. 3.69, 71, 73; 9.19; Dem. 28.15; Harpo. s.v. ejpevskhyen with Isae. fr. 15 Thalheim. See Gernet (1982) 85–90; Panagiotou (1974) 433 with n. 34; Grace (1975) 11. 19 Icelanders also made oral wills in their dying injunctions: e. g., Vatnsdæla saga 6; Laxdæla saga 78.

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dowries from his estate for both fiancées. Seven-year-old Demosthenes junior and his share of the estate are entrusted to all three trustees jointly, with his father enjoining (ejpiskhvptwn) the trustees to rent out the property and keep the estate intact for Demosthenes junior. The scene closes with the dying father laying his son at the knees of Aphobus. As far as we know, Demosthenes senior died of natural causes. Not all Athenians did. When a dying man could identify his killer, he might issue specific instructions to his family, friends, and slaves regarding the killer. This mandate could take one of two forms: either a pardon or a call to vengeance. Athenian law invested the pardon of a killer by his victim with legally binding force: if a victim pardoned his killer before dying, his relatives were prohibited from prosecuting the homicide (Dem. 37.59);20 presumably this rule implies a fortiori that non-kin were also barred from prosecuting by apagôgê. Thus, in the first instance, the right to seek or forgo vengeance belonged to the victim. It was up to him whether his killing should be prosecuted or not; that is, whether a state of enmity should ensue between his surviving kin and the killer.21 Since, however, the Athenians of the fifth and fourth centuries did not share the Judeo-Christian attitude toward vengeance as the prerogative of the divine (e. g., Dt. 32:35; Rom. 12:19), it should not be surprising that Demosthenes does not follow his statement of the pardon rule with any examples of its application. By contrast, the orators preserve a number of instances in which decedents pursue the opposite course and mandate vengeance upon their killers in one form or another. The earliest description in Attic oratory of a dying injunction issued by a homicide victim occurs in Antiphon 1, Against the Stepmother. This speech is often placed somewhere in the period between 420 and 41122 but may be considerably earlier, and the case came to court some time after the events described, since the speaker was only a boy when the casus litis occurred (§ 30: see below). The speaker is prosecuting his stepmother for intentional homicide as an accomplice in the poisoning death of his father, and toward the end of his speech he explains the standard procedure employed by dying Athenians against their killers. Most victims of homicidal plots, he tells his jury, fail to perceive the impending danger until it is too late. “Then,” he continues, “if they are able and have time before they die, they summon their friends and relatives and call them to witness, and they tell them at whose hands they are dying and enjoin them to avenge them for the wrongs they have suffered (ejpiskhvptousi timwrh`sai sfivsin aujtoi'~ hjdikhmevnoi~). And this is what my father enjoined (ejpevskhpten) me to do when I was a boy and he was suffering his miserable terminal illness. If they are lacking such people, they draw up a document, summon their household slaves as witnesses, and reveal at whose hands they are dying. Although I was still young, my father revealed these things and gave these instructions to me, gentlemen, not to his slaves” (§§ 29–30).

20 See MacDowell (1963) 8. 21 In the Icelandic sagas a victim’s pardon of his killer was influential but not dispositive: see Vatnsdæla saga 3–5. 22 E. g., Gagarin-MacDowell (1998) 10.

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Just as the decedent’s pardon prevented his family from prosecuting and thus abjured the potential enmity, so an express injunction of vengeance stressed the recipient’s duty to prosecute and officially opened hostilities between the recipient and the killer. The wording of the dying injunction, here and elsewhere (see below), betrays the antiquity of the custom: the dying man said timwvrhson “avenge,” not divwxon vel sim. “prosecute.” The original meaning of the charge, as a call to violent retribution, thus survives in the wording of the dying injunction but not in its sense. Although the speaker explicitly likens his stepmother to Clytemnestra, who had slain her husband Agamemnon upon his return from the Trojan War (§ 17), when the speaker’s father ordered vengeance for his death, he did not intend or expect his son to mimic Orestes by killing his stepmother with his own hands.23 If the Classical Athenians had expected recipients of deathbed injunctions to fulfill them by means of revenge killings, those recipients who chose to prosecute instead would hardly have related the injunctions to their juries, thereby advertising their failure to obey them. In fact, at the beginning of Antiphon 1 the speaker summarizes his father’s deathbed instructions by stating that his father enjoined him “to prosecute his killers” (ejpiskhvyanto~ tou' patro;~ ejpexelqei'n toi'~ auJtou' foneu'si, § 1). For both the would-be avenger (the speaker) and the victim (his father), prosecution (ejpexelqei'n) is equivalent to vengeance (timwrh'sai). Contributing to this equivalence is the fact that, if convicted, the stepmother faces execution; even under Draco’s law, lethal enmities could still be legally carried out in Classical Athens, provided that homicide prosecutors used the courts to kill their enemies for them.24 Of the dying injunctions cited so far, one (Dem. 28.15–16) deals with the disposition of an estate; the other (Ant. 1.1, 29–30) orders vengeance on a killer. The next example, from Lysias 13, Against Agoratus, addresses both issues and demonstrates the connection between them. The events described by Lysias take place in 404/3 during the reign of the Thirty Tyrants. Dionysodorus has been denounced by Agoratus, tried, and condemned to death. In prison awaiting execution, he summons his wife, the sister of the man who would deliver the Against Agoratus. “And in the presence of my sister,” the speaker tells Agoratus’ jury, “Dionysodorus disposed of his property as he saw fit (tav te oijkei'a ta; auJtou' dievqeto o{pw~ aujtw'/ ejdovkei); and concerning Agoratus here, he named him responsible for his death, and he enjoined me and his brother Dionysius here and all his philoi to get revenge on Agoratus for him (ejpevskhpten ejmoi; kai; Dionusivw/ toutw/iv, tw'/ ajdelfw'/ tw'/ auJtou', kai; toi'~ fivloi~ a{pasi timwrei'n uJpe;r auJtou' ∆Agovraton). And, believing that his wife was pregnant by him, he enjoined her (ejpevskhpte), if she bore a child, to tell it when it was born that Agoratus had killed its father, and to command it to take 23 In Classical Athens, we should note, although Aeschylus in the Eumenides had Orestes acquitted of Clytemnestra’s killing upon the intercession of Athena, Orestes was remembered foremost not as the righteous avenger of his father’s death but as a madman. So in Isaeus 8.3, 44 a notorious bully, Diocles of Phlya, is nicknamed “Orestes,” and at Hypereides 1.7 Lycophron asks his jury, “Do you think Orestes the madman (∆Orevsth~ ejkei'no~ oJ mainovmeno~) or Margites, the biggest fool of all, would have done this?” For additional references see Wyse (1904) 590–91; Whitehead (2000) 122. 24 Cf. Ant. 5.61; Cohen (1995) 84, 104.

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vengeance for its father upon Agoratus as his killer (timwrei'n uJpe;r auJtou' wJ~ foneva o[nta)” (§§ 41–42). This passage, like those cited above from Demosthenes 28 and Antiphon 1, displays the technical use of the verb ejpiskhvptein to describe dying injunctions. In his employment of the term, moreover, Lysias distinguishes carefully between Dionysodorus and his survivors, using ejpiskhvptein only to describe the actions of the decedent: while the dying man, Dionysodorus, twice “enjoins” (ejpevskhpte[n]), his surviving wife is told to “command” (keleuvein) her child to seek vengeance. Further evidence for this restriction of ejpiskhvptein to the victim in the context of homicide25 appears in the hypothetical case represented in Antiphon’s Third Tetralogy, where the victim’s kin “enjoin” the jury “in place of the decedent” (ajnti; tou' ajpoqanovnto~ ejpiskhvptomen uJmi'n, Ant. 4 g 7). The speaker of Lysias 13 and Dionysius obey Dionysodorus’ dying injunction by prosecuting Agoratus for his killing. As in the Stepmother case, they are not expected to kill Agoratus themselves; if convicted, Agoratus faces the death penalty: private vengeance performed, and thus sanctioned, by public authority. Hence the speaker argues at the conclusion of his case that Dionysodorus’ injunction applies to the jury as well as to himself and Dionysius (§ 92). According to the speaker, Dionysodorus enjoined all his philoi (toi'~ fivloi~ a{pasi) to avenge him; and since Dionysodorus was a benefactor of the Athenian democracy, every juror is his friend and therefore has an obligation to obey his dying injunction by voting to convict his killer. Thus the public duty of the juror to the Athenian state coincides with his private duty to Dionysodorus (see chapter 7). The form and content of Dionysodorus’ final instructions show that the obligation to avenge his death constituted a de facto part of his estate.26 The oral will he makes in the presence of his wife contains directives regarding both the disposition of his property (cf. Dem. 28.15–16) and the punishment of Agoratus (cf. Ant. 1.1, 29–30), which falls to his brother, brother-in-law, and putative posthumous offspring. Moreover, Dionysodorus’ wife performs a similar intermediary function in the execution of both elements of the will, as evidenced by Dionysodorus’ instructions concerning the fetus he believes her to be carrying. While the speaker does not say so, Dionysodorus presumably made provision for his unborn child among the heirs to his estate; with regard to the obligation of revenge, the speaker expressly relates Dionysodorus’ instruction that, after it is born, its mother is to instruct it to avenge its father. In the interim Dionysodorus’ wife serves as custodian of the duty of vengeance: she is not to avenge her husband herself but only to pass on the duty to their child. Dionysodorus evidently had a son in mind, but this did not need to be 25 ∆Episkhvptein is also employed in other legal contexts, in the middle voice as opposed to the active, with the meaning “to file a claim (episkêpsis) for false testimony”; this served as notice of intent to bring a lawsuit for false testimony against a witness in a previous lawsuit (dikê pseudomartyriôn). See Harrison (1968–71) 2.192–93. 26 On the connection between vengeance for and inheritance from a homicide victim see chapter 3; Beauchet (1897) 3.574–75, 585. Icelandic law made this connection explicit: the same order of succession determined both the duty to avenge the decedent and the right to inherit his estate (Smiley, Kellogg, et al. [2000] xl–xli; Grágás K § 94).

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specified to Agoratus’ jury, since the Athenians understood revenge to be the province of men, and Athenian law barred women from prosecuting all offenses, including homicide. In discharging this duty, Dionysodorus’ wife performs a function analogous to that of the Athenian epiklêros, the daughter of a decedent who dies without sons. The epiklêros did not inherit her father’s estate but rather conveyed it to her male offspring, the grandsons of the decedent.27 Dionysodorus instructs his wife to play a similar role: as his impending death renders him unable to charge his son in person to avenge him, as had the father of the speaker of Antiphon 1, his wife will convey the injunction to their son, thereby serving, in essence, as epiklêros of the duty of vengeance.28 Understanding that Athenians who could place responsibility for their deaths on an individual would normally enjoin vengeance accordingly helps to elucidate the most famous deathbed scene in Athenian literature; namely, the description of Socrates’ demise in Plato’s Phaedo. After drinking the fatal hemlock in accordance with the death sentence imposed by an Athenian jury, Socrates, on the very threshold of Hades, issues his last words: “Crito, we owe a rooster to Asclepius; pay it and do not neglect it.” Crito responds, “That will be done; but see if you have anything else to say” (Pl. Phaedo 118a). Socrates’ charge to Crito has aroused much discussion and debate; Asclepius’ role as the god of healing has led to conclusions that Socrates meant to thank Asclepius for healing his soul or liberating him from physical troubles, or “hope[d] to awake cured like those...healed by ejgkoivmhsi~ (incubatio) at the Asklepieion at Epidaurus.”29 But regardless of Socrates’ exact intent, Crito clearly expects further instructions, and the evidence of the dying injunctions cited above (especially that of Dionysodorus in Lysias 13), viewed in light of Socrates’ impending death by execution, suggests that Crito is giving Socrates the opportunity to order vengeance on the parties responsible for his death: presumably his prosecutors, Meletus, Anytus, and Lycon. Yet Socrates demurs: he obeys Athenian custom by enjoining Crito to discharge a debt, but the debt is not retribution against his enemies but a rooster owed to the god of healing.

27 E. g., [Dem.] 46.20; Isae. 8.31. On epiklêroi see Harrison (1968–71) 1.132–38; Pomeroy (1975) 60–62; Sealey (1990) 29, 45; Patterson (1998) 97–101. 28 On the heritability of enmity see above, pp. 25–29. Like their Athenian counterparts, women in the Icelandic sagas, discouraged by societal norms from physically exacting retribution, commonly function as goads of vengeance. After the killing of Kjartan, for example, his mother Thorgerd pressures her surviving sons into avenging their brother by impugning their bravery and questioning their manhood (Laxdæla saga 53; Miller [1990] 212–14; cf. Gudrun’s goading of her sons to avenge their father Bolli at Laxdæla saga 60). On verbal goading and other methods commonly employed by women in feuding societies in order to propagate feuds originating with a homicide from generation to generation see Black-Michaud (1975) 78–80; Miller (1990) 212; Cohen (1995) 84 n. 59. 29 Tredennick-Tarrant (1993) 231; Dyer-Seymour (1908) 168; Burnet (1911) 147 (cf. Herondas 4.11–18 with Headlam [1922] 177–81, esp. 179).

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The aggressive funeral When an Athenian died violently and could not give explicit instructions to his family, they assumed that he required vengeance. A spear was carried at the funeral, and at least in some cases an initial proclamation was made against the killer. The evidence for these practices comes from [Demosthenes] 47, Against Euergus and Mnesibulus, which may have been composed by Demosthenes’ contemporary Apollodorus, from a fragment of the Atthidographer Istrus, and from the lexicographers Harpocration and Pollux. The speaker, commonly designated “the trierarch” from the liturgy that led to the dispute between himself and his opponents, asks the Exêgêtai (the “Interpreters” of the sacred law) what he should do after an aged freedwoman, previously owned by his father, has been killed (see chapter 4). The Exêgêtai advise the trierarch against prosecuting her homicide but instruct him to carry a spear at her funeral, stand guard over the tomb for three days, and issue a proclamation against “the perpetrators and killers” ([Dem.] 47.69). Two ancient lexicographers to the Attic orators attest that the kin of a homicide victim customarily signaled their intent to prosecute the killer by carrying a spear and issuing a proclamation at the funeral. In his second-century A.D. Lexeis of the Ten Orators, Harpocration has an entry entitled ejpenegkei'n dovru ejpi; th'/ ejkfora'/ kai; proagoreuvein ejpi; tw'/ mnhvmati (“carrying a spear at the funeral and making a proclamation at the tomb”), under which he cites not only [Demosthenes] 47 but also Istrus, according to whom “it was customary for relatives [of the victim] to pursue killers in this way” (FGrHist 334 F 14). According to the Onomasticon of Pollux (8.65), an approximate contemporary of Harpocration, the carrying of the spear was customary whenever the decedent died violently (dovru ejpi; th'/' ejkfora'/ ejpi; tw'n biaivw~ ajpoqanovntwn ejpefevreto) and was a signal to the decedent (wJ~ oJrw't/ o oJ nekrov~) as well as his killer. As Richard Seaford has observed, the carrying of the spear marks an “aggressive funeral.”30 The antiquity of the custom is evident, as is its original meaning. The weapon signifies violent revenge: when this practice first arose Athenians avenged their dead not by litigation but by the spear. Even after Draco’s law mandated that homicides must be prosecuted in court rather than avenged by retaliatory killings, the ancient symbol remained as testimony to an earlier time when bloody retribution was the norm. [Demosthenes] 47, Harpocration, and Pollux all connect the carrying of the spear with the proclamation made against the killer at his victim’s tomb, and presumably they functioned as a symbolic unit. At the victim’s funeral, one of his kinsmen named the killer and brandished the spear, thereby publicizing the killing and announcing to all, including the killer and the victim, the family’s intent to seek vengeance: originally satisfaction was to be exacted in blood, but by the Classical period it was to be achieved in court. The display of the spear and the issuing of the proclamation thus publicly and formally inaugurated the state of enmity between the killer and his victim’s kin.31

30 Seaford (1994) 86ff. 31 On the proclamation cf. Gernet (1982) 75–79; for the Icelandic parallel see above, p. 56 n. 95.

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As part of his revision of Athenian law in 594/3, Solon enacted a number of statutes regulating the conduct of Athenian funerals. Many of these funerary provisions are preserved in a law cited at [Demosthenes] 43.62, which reads: To;n ajpoqanovnta protivqesqai e[ndon, o{pw~ a]n bouvlhtai. ejkfevrein de; to;n ajpoqanovnta th'/' uJsteraiva/ h/\ a]n proqw'ntai, pri;n h{lion ejxevcein. badivzein de; tou;~ a[ndra~ provsqen, o{tan ejkfevrwntai, ta;~ de; gunai'ka~ o[pisqen. gunai'ka de; mh;, ejxei'nai eijsievnai eij~ ta; tou' ajpoqanovnto~ mhd∆ ajkolouqei'n ajpoqanovnti, o{tan eij~ ta; shvmata a[ghtai, ejnto;~ eJxhvkont∆ ejtw'n gegonui'an, plh;n o{sai ejnto;~ ajneyiadw'n eijsi: mhd∆ eij~ ta; tou' ajpoqanovnto~ eijsievnai, ejpeida;n ejxenecqh'/' oJ nevku~, gunai'ka mhdemivan plh;n o{sai ejnto;~ ajneyiadw'n eijsin. He shall lay out the dead man inside [the house] however he wishes. They shall carry the dead man out the day after they lay him out, before the sun comes out. When they carry him out, the men shall walk in front, the women behind. No woman under sixty years of age may enter the property of the dead man or accompany the dead man when he is carried to his tomb, except those within the degree of children of first cousins; no woman may enter the property of the dead man after the corpse is carried out, except those within the degree of children of first cousins [emphasis mine].32

Plutarch in his Life of Solon (21.6) adds that, among other regulations and restrictions on Athenian funerals, Solon banned the self-infliction of wounds by mourners (ajmuca;~ de; koptomevnwn) and the singing of composed dirges (to; qrhnei'n pepoihmevna). While Solon’s ordinances on funerals are often viewed as examples of the sumptuary legislation that helped earn him a spot on the roster of the Seven Sages of antiquity, Seaford correctly notes that their “function was not (or not primarily) economic.”33 Solon’s paramount concern in regulating the conduct of Athenian funerals was not to suppress the ostentatious display of wealth34 but to prevent the aggressive funeral from becoming too aggressive.35 Hence, while Solon did not legislate against the customs of carrying a spear at the funeral of a homicide victim and issuing a proclamation against his killer at his grave, he placed new restrictions on participation in funerals and on the method of mourning. From his surviving funerary legislation it appears that Solon did not restrict male attendance at either the laying-out of the body (prothesis) or the funeral procession (ekphora); he did, however, bar women under sixty from attending either the prothesis or the ekphora unless they were related to the decedent within the degree of descendant first cousin once removed. Solon thus applied the same standard of kinship in his funerary measures as Draco had in his homicide law (above, pp. 54–56). In doing so Solon may have acted under the direct influence of his predecessor, although we must consider the possibility that preexisting Athenian custom led both lawgivers to define a decedent’s kin as they did. By excluding women outside the stated age and kin groups from participation in funerals, Solon imposed a limit on the sheer size of the funeral procession, which, 32 On this passage see Ruschenbusch (1966) F 109; Seaford (1994) 75; Blok (2006) 201, 210– 13. 33 Seaford (1994) 79; cf. Blok (2006) 226–29. 34 This concern does appear elsewhere, however: for example, Solon forbade the sacrifice of an ox and limited the decedent to three cloaks (Plut. Solon 21.6). 35 Cf. Blok (2006) 234–35.

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in cases where the decedent had died violently, might threaten to disturb the peace.36 At the same time, Solon’s law emphasized the familial character of the funeral, which served to reinforce the sense of solidarity among the decedent’s kin37 – the same cohesion that Draco had required in his homicide legislation (above, pp. 54– 57). A desire to minimize the potentially disruptive force of the funeral of a homicide victim also presumably informed Solon’s regulations regarding conduct at the tomb. Mourning was to be spontaneous yet controlled: spontaneous, in that the singing of set dirges was prohibited; but at the same time controlled, lest mourners’ self-mutilation further provoke a crowd already bent on avenging the decedent’s death.38

CONDUCTING ENMITY In Classical Athens, as we have seen, homicide was avenged normally not by revenge killing but by litigation. It is clear from the surviving forensic speeches that an Athenian might consider killing his enemy in the course of a dispute: in Lysias 1, for example, the defendant Euphiletus takes great pains to prove to his jury that he killed Eratosthenes on the spur of the moment and not as an act of retaliation in pursuance of preexisting enmity (above, p. 16); and Euxitheus, the speaker of Antiphon 5, issues a similar disclaimer (§ 57), although without offering supporting evidence.39 The possibility of a revenge killing may be acknowledged in the counsel given by the Exêgêtai to the trierarch in [Demosthenes] 47. After advising the trierarch to carry a spear and make a proclamation against the killers at the freedwoman’s tomb, but not to name or prosecute the killers, the Interpreters conclude, “...you should expiate yourself and your house and bear the misfortune as lightly as you can; and if you want revenge some other way, take it” (uJpe;r seautou' kai; th'~ oijkiva~ ajfosiwsavmeno~ wJ~ rJa'/sta th;n sumfora;n fevrein, a[llh/ de; ei[ ph/ bouvlei, timwrou', [Dem.] 47.70). “Some other way” (a[llh/ ph/) is a remarkably vague phrase, and the Exêgêtai may simply be envisioning litigation other than a homicide lawsuit, such as the dikê pseudomartyriôn (action for false witness) against Euergus and Mnesibulus during which the trierarch reports this conversation; but the comment might also refer obliquely to violent retribution (see chapter 4).40 Whether the trierarch considered a revenge killing we do not know, but at least as of the delivery of [Demosthenes] 47, his enemies were still alive. This fact accords with the evidence of Attic oratory as a whole that the normal response to a homicide was not a retaliatory killing but a lawsuit. In the Classical period, prosecution for homicide comprised three stages: proclamations, preliminary hearings, and the trial proper. A fourth stage, the execution of judgment, followed in cases where 36 Seaford (1994) 82, 88–89. 37 Burkert (1985) 190–91. 38 Parker (1996) 50 proposes as an additional motivation the lawgiver’s desire (according to Plut. Solon 12.8) to remove the “harsh and barbaric” aspects of the Athenian funeral. 39 Gagarin (1997) 204. 40 Cf. Grace (1975) 10.

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the defendant was convicted and sentenced, according to the circumstances of the killing, to either execution or exile.

Proclamations Draco’s law mandated that the relatives of a homicide victim issue a proclamation against the accused killer in public (proeipe'n de; to'i ktevnanti ejn ajgora'i, IG I3 104.20–21: above, pp. 50, 55). In the Classical period, prior to a dikê phonou – but not to an apagôgê for homicide – two proclamations were issued to the killer: one by the victim’s relatives and a second by the basileus, who superintended the system of homicide courts. With each proclamation the intended prosecution, and the state of enmity between the killer and his victim’s kin, became increasingly public. The evidence for the proclamation at the tomb has already been discussed (above, pp. 69–71). As the custom of carrying a spear indicates, this is undoubtedly the earlier of the two proclamations historically as well as sequentially. MacDowell has argued for the existence of an additional proclamation by the victim’s family in the Athenian agora, which took place after the graveside proclamation and before the announcement by the basileus.41 But his evidence consists only of Draco’s phrase ejn ajgora'i (which, as argued above [p. 56], means “in public,” not “in the Athenian agora”) and a passage of Antiphon (6.35–36: see below) that mentions a proclamation but fails to specify its location. Therefore, it is best to adopt the solution proposed by Alexander Tulin and “either identify, or at least closely associate, the family’s proclamation ejn ajgora'/ with any ritual proclamation offered at the tomb.”42 The second proclamation was issued by the basileus after he registered a charge of homicide brought by the relatives of the victim. In the Classical period, the basileus presumably made this announcement in the agora, since his office, the Royal Stoa (Stoa Basileios), was located at its northwest corner.43 Thus, while Draco’s phrase ejn ajgora'i did not originally mean “in the Athenian agora,” when the agora became the “civic center” of Athens in the sixth century,44 it was natural that, for maximum publicity, proclamations against killers by the basileus occur there; and so, by the time of the orators, Athenians probably interpreted Draco’s law as requiring a proclamation in the agora, although Draco had done nothing of the sort. This second proclamation, made by a magistrate of the Athenian state in the most frequented part of the city, broadcast the victim’s relatives’ intention to prosecute, and the existence of formal enmity between them and the accused killer, to the entire Athenian citizen body. That a charge of homicide had to be filed before the basileus issued the second proclamation is clear from a passage in Antiphon’s oration On the Chorister that 41 MacDowell (1963) 24–25. 42 Tulin (1996) 43; cf. Gagarin (1997) 240, who distinguishes between an “informal” proclamation at the tomb and a “formal” proclamation by the basileus. 43 Camp (1986) 53–57, 100–5. 44 Camp (2001) 257.

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presents the most detailed surviving account of the procedure followed by the victim’s kin in the aftermath of a killing (Ant. 6.34–36).45 In this case an unnamed chorus-producer (chorêgos) stands accused of conspiracy to commit unintentional homicide (bouleusis phonou akousiou)46 after one of his choristers, Diodotus, ingests a lethal drug administered by a third party. In his defense, the chorêgos describes the immediate reaction of Diodotus’ family to their kinsman’s death as follows: ou|toi ga;r th/' me;n prwvth/ hJmevra/ h/| ajpevqanen oJ pai'~, kai; th/' uJsteraiva/ h/| proevkeito, oujd∆ aujtoi; hjxivoun aijtia'sqai ejme; oujd∆ ajdikei'n ejn tw'/ pravgmati touvtw/ oujdevn, ajlla; sunh'san ejmoi; kai; dielevgonto: th'/ de; trivth/ hJmevra/ h/| ejxefevreto oJ pai'~, tauvth/ dh; pepeismevnoi h\san uJpo; tw'n ejcqrw'n tw'n ejmw'n, kai; pareskeuavzonto aijtia'sqai kai; proagoreuvein ei[rgesqai tw'n nomivmwn. …peivsante~ de; touvtou~ ajpogravfesqai kai; proagoreuvein ejmoi; ei[rgesqai tw'n nomivmwn, hJghvsanto tauvthn sfivsin e[sesqai swthrivan kai; ajpallagh;n tw'n pragmavtwn aJpavntwn. oJ ga;r novmo~ ou{tw~ e[cei, ejpeidavn ti~ ajpografh'/ fovnou divkhn, ei[rgesqai tw'n nomivmwn. On the first day, when the boy died, and on the next day, when he was laid out [at the prothesis], my adversaries themselves did not see fit to accuse me of any wrongdoing at all in this matter; on the contrary, they associated and conversed with me. But on the third day, when the boy was carried out [in the ekphora], then they were persuaded by my enemies and prepared to lodge an accusation and issue a proclamation to stay away from the customary things. ...Having persuaded them to file a lawsuit and issue a proclamation to me to stay away from the customary things, they thought that this would save them and release them from all their problems. For the law states that after a person is registered as the defendant in a homicide lawsuit, he must stay away from the customary things.

Three times in this passage, and again in § 46, the chorêgos mentions an accusation of homicide (aijtia'sqai, ajpogravfesqai) and a proclamation (proagoreuvein)47 ordering the accused “to stay away from the customary things” (ei[rgesqai tw'n nomivmwn). In each instance the accusation comes first; the final appearance of the combination in the passage (ejpeidavn ti~ ajpografh/' fovnou divkhn, ei[rgesqai tw'n nomivmwn) establishes that this proclamation is contingent upon registration of the lawsuit by the basileus. The “customary things”48 from which a homicide defendant was excluded during the period between the registration of his case and his trial included not only the lawcourts (as was the alleged intent of the chorêgos’ prosecutors) but also “purification by water, libations, mixing-bowls, and the agora” (Dem. 20.158). In the present instance, however, the basileus refused to register the lawsuit against the chorêgos on the grounds that only two months remained in his term of office and homicide cases required three preliminary hearings in successive 45 On this passage see Tulin (1996) 39–41; Gagarin (1997) 239–40; on the background of the case see Heitsch (1980). 46 Heitsch (1980). 47 On the importance of the distinction between these terms see MacDowell (1963) 23; Tulin (1996) 40–41. 48 For the requirement that a person facing a homicide charge eirgesthai tôn nomimôn cf. Ant. 3 a 2, g 11; Dem. 20.158 (see below); [Arist.] Ath. Pol. 57.2; Lex. Seg. (Lex. Rhet.) p. 310 Bekker; Pollux 8.90 (adding “mysteries” [musthrivwn] to the list of proscribed places). In the last three, as in Antiphon 6, the duty is explicitly assigned to the basileus; the victim’s kin could not include this provision in their graveside proclamation, as they had no authority to ban the killer.

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months (see below).49 As a result, no ban was enforced on the chorêgos, who thus had access to the courts and procured several convictions before his own trial (§ 38). In cases where a ban was pronounced and subsequently violated, the violator was subject to summary arrest (apagôgê: Dem. 24.105 [lex]).50

Preliminary hearings Antiphon 6 also provides our sole contemporary testimony to the extraordinary procedure followed in dikai phonou – but not in apagôgai for homicide – with regard to preliminary hearings: the defendant explains that the first basileus with whom his prosecutors attempted to register their lawsuit against him refused to grant it, “for after he registered the case, the basileus had to conduct three preliminary hearings in three months and to bring the case to court in the fourth month, as has happened now” (e[dei me;n ga;r to;n basileva, ejpeidh; ajpegravyato, trei'~ prodikasiva~ poih'sai ejn trisi; mhsiv, th;n divkhn d∆ eijsavgein tetavrtw/ mhniv, w{sper nuniv, § 42). Two later lexicographers, Photius and the author of the Suda, give the following identical definition of “preliminary hearing” (prodikasia): prodikasiva: oiJ ta;~ ejpi; fovnou divka~ ejgkalouvmenoi ejn Prutaneivw/ pro; th'~ divkh~ diatelou'sin ejpi; trei'~ mh'na~, ejn oi|~ ejx eJkatevrou mevrou~ lovgoi proavgontai: tou'tov fasi prodikasivan. Prodikasia: Those charged with homicide live in the Prytaneion for three months before trial, during which speeches are made by each side; this they call prodikasia. (Photius, Lexicon s.v. prodikasiva = Suda s.v. prodikasiva)

The identification of these prodikasiai as preliminary hearings is confirmed by the section of the Lexica Segueriana titled “Names of Lawsuits” (Dikôn Onomata), which defines prodikasia as “when the trial is practiced before the binding trial” (o{tan de; progumnavzhtai hJ divkh pro; th'~ kuriva~, Lex. Seg. [Dik. Onom.] p. 186 Bekker). As MacDowell has noted, “(t)he lexicographers do not really explain what was the purpose of the prodikasiai.”51 Nonetheless, it is reasonable to conjecture, as MacDowell and others have done, that these “practice trials” allowed the prosecution and defense to present their evidence, on the basis of which the basileus would assign the lawsuit to one of the five special homicide courts (above, pp. 59–60).52 From the standpoint of vengeance, the most important piece of information given by Photius and the Suda about these preliminary hearings is their statement that men awaiting trial for homicide lived in the Prytaneion during the months between accusation and trial. The Attic orators, however, not only fail to confirm this provision but provide positive evidence to the contrary, in that at least some defend49 Scholars are divided in their assessment of this assertion by the basileus: some believe, on the basis of this passage, that all preliminary hearings and the trial had to be conducted by the same basileus, while others are more skeptical. See MacDowell (1963) 34–36; Tulin (1996) 40; Gagarin (1997) 242–43. 50 MacDowell (1963) 26. 51 MacDowell (1963) 36. 52 Lipsius (1905–15) 840, 845; MacDowell (1963) 36–37.

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ants in the surviving homicide speeches (including Antiphon 6: see below) were clearly not sequestered prior to trial. It is, therefore, possible that the lodging of homicide defendants at the Prytaneion before trial is a wholesale lexicographical fabrication. However, we must bear in mind that Photius and the author of the Suda had access to a much larger corpus of Attic oratory than we do today, and may well have drawn this information from one or more speeches now lost. Moreover, the word prodikasia (which we might render literally as “preadjudication”) contains no linguistic elements from which the lexicographers might have inferred the sequestration of homicide defendants. Therefore, while the lack of attestation in surviving Attic oratory certainly encourages skepticism, it would be rash simply to reject out of hand the evidence for sequestration given by Photius and the Suda. While the pretrial activities of homicide defendants described by the Attic orators make it clear that sequestration was not mandatory (at least in the surviving cases), it may have been exercised as an option at the discretion of the individual defendant. If Photius and the Suda are correct, why would men awaiting trial for homicide receive lodging at the Prytaneion? At first glance this would seem to constitute a grave violation of the homôr0phios doctrine (above, p. 63): the presence of accused killers in the Prytaneion would presumably expose the prominent individuals who regularly dined there53 to potential miasma. Possibly the consideration that overrode the risk of pollution was the safety of the accused killer. The months between the filing of a homicide lawsuit and trial have been described as a potential “cooling-off period” that encouraged reconciliation between the parties.54 This may be so, but we might also plausibly envision the opposite effect: a three-month waiting period between accusation and trial might provoke impatient relatives of the victim to seek violent retribution, and so, to prevent such attempts, they and the accused killer had to be kept apart. Hence the killer was ordered to “stay away from the customary things” – public places where he was likely to encounter his victim’s kin, as well as sacred sites that he might pollute – and was sequestered in the Prytaneion to forestall any temptation on the part of his victim’s family to exact revenge by violence. Under such circumstances, the only contact between the killer and the family of his victim would occur at the three preliminary hearings, conducted under the supervision of the basileus. This is not what happened with the chorêgos of Antiphon 6. On the contrary, in his defense the chorêgos offers evidence that he was in frequent contact with his accusers during the period between their filing of the lawsuit and the present trial, in order to prove that they did not really hold him responsible for the death of their kinsman. He asserts, in fact, that he and his prosecutors concluded a formal and public reconciliation (diallagê: above, p. 18) in the presence of witnesses, and that after the reconciliation his prosecutors “associated and conversed with me in the temples, in the agora, in my house, in theirs, and everywhere else” (meta; tou'to sunh'savn moi kai; dielevgonto ejn toi'~ iJeroi'~, ejn th'/ ajgora'/, ejn th/' ejmh'/ oijkiva/, ejn th/' sfetevra/ aujtw'n, kai; eJtevrwqi pantacou', § 39). Philocrates, one of his accusers, 53 Camp (2001) 27. 54 Gagarin (1997) 243.

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even stood with the chorêgos at the altar in the Council Hall and conversed with him, addressing him by name, an act that confused the councillors, since Philocrates had previously tried to lodge a dikê phonou against the chorêgos (§ 40). The arguments advanced by the chorêgos in this part of his speech all aim to demonstrate that he and his prosecutors were not in a state of enmity in the period leading up to trial, as they would have been had the prosecutors truly believed him to be culpable in Diodotus’ death. His opponents “associated and conversed” with him – a phrase that the chorêgos utters five times (§§ 34, 39, 40, 46, 48) – not only in public (thus inviting observers to conclude that they had been reconciled following the accusation) but in each other’s homes. The allegation that the chorêgos and his prosecutors visited each other at home serves as the ultimate proof both of the chorêgos’ general assertion that the parties were not enemies and of his specific contention that Diodotus’ kinsmen did not regard him as a killer.55 The home of an avowed enemy was arguably the last place an Athenian would go, unless he intended to do his enemy harm. In Lysias 4, accordingly, the prosecutor contends that he and the defendant were in a state of enmity and the defendant arrived unbidden at his house and attempted to kill him, while the defendant claims that they had been reconciled and the prosecutor invited him to visit (above, p. 17); in Lysias’ Against Teisis, a feigned reconciliation and an invitation lure Archippus into Teisis’ house, where Teisis assaults him (above, p. 18). If Athenians engaged in active enmity avoided each other’s homes on principle, absent malicious intent, they would have been all the more likely to do so when the cause of enmity was a homicide. From the point of view of the accused, private contact increased the probability of suffering violence at the hands of outraged kinsmen of the dead man. From the point of view of the accusers, associating with the killer of a relative in either his home or theirs not only compromised their accusation by implying that they had forgiven him but represented a particularly reprehensible violation of the homôrophios doctrine, since the deceased was their own kinsman.56 Thus the complete antithesis between the norms of Athenian echthra – and particularly the strictures governing accusations of homicide – and the conduct ascribed to his accusers allows the chorêgos to posit the latter as presumptive proof of his innocence.

Trial The requirements of proclamation and preliminary hearings discussed above applied only to the dikê phonou, the original Athenian legal action for homicide instituted by Draco. In the Classical period, however, as the following chapters will demonstrate, Athenians used a number of procedures to seek redress for a killing, including not only the traditional dikê phonou but also apagôgê and, in one instance, a review of a magistrate’s conduct in office (euthynai). As shown above 55 Cf. Heitsch (1980) 21, 33. 56 Cf. MacDowell (1963) 31–32, 145–46; Heitsch (1980) 22; and see below, pp. 105–9, on Dem. 22.2–3; 24.7–8.

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(pp. 16–20), Athenian litigants commonly asserted or disclaimed a relationship of echthra with their adversaries in explaining their actions and motives for litigation to their juries; Lysias in the Against Eratosthenes states as a general rule that “prosecutors had to disclose whatever echthra they felt toward their defendants” (Lys. 12.2). This practice appears with particular frequency in homicide cases: regardless of the procedure used, at trial litigants endeavoring to avenge a slain kinsman by prosecuting his killer regularly acknowledged the existence of enmity between themselves and their defendants and posited this echthra as the grounds for their prosecution. In the same section of the Against Eratosthenes, accordingly, Lysias cites the personal enmity (oijkeiva~ e[cqra~) between himself and the defendant, Eratosthenes, which resulted from the death of Lysias’ brother Polemarchus (discussed below in chapter 6); and the speaker of the Against Agoratus explains that Agoratus is his own enemy – as well as an enemy of the Athenian democracy (tugcavnei ou\n ejmoi; hJ aujth; e[cqra pro;~ ∆Agovraton toutoni; kai; tw'/ plhvqei tw'/ uJmetevrw/ uJpavrcousa) – because Agoratus killed Dionysodorus, his brother-in-law and cousin (Lys. 13.1–2; see chapter 7). On the other hand, the speaker of Antiphon 1, prosecuting his stepmother for conspiracy to kill his father, studiously avoids the word e[cqra, probably because the defendant is represented by her sons, who are the speaker’s own patrilateral half-brothers. While thus forbearing to characterize his kinsmen as his enemies (ejcqroiv), he nonetheless asserts that they are not only his adversaries at law (ajntivdikoi) but their father’s killers (fonei'~), insofar as they are defending their mother instead of prosecuting her in compliance with their father’s dying injunction (Ant. 1.1–2). Where possible, an Athenian homicide prosecutor would assert a relationship of echthra not only between himself and the defendant but also between the defendant and the trial jurors. Convincing the jurors that they were also enemies of the defendant, as a result of the charged homicide, the defendant’s other prior conduct, or both, increased the prosecutor’s chances of securing a conviction by activating the jurors’ desires for personal revenge upon an enemy for wrongs they themselves had suffered and by reminding the jurors of their obligation to exact vengeance on behalf of their philos, the victim (see above, pp. 25–29). This prosecutorial strategy of enlisting the jurors as allies in private enmity would prove especially attractive when the defendant was a former member or supporter of the regime of the Thirty Tyrants, whom most Athenians of the restored democracy considered their enemies. Accordingly, in prosecuting the former tyrant Eratosthenes, Lysias paints the defendant and the rest of the Thirty as not only his enemies but enemies of the city as a whole, including both their democratic adversaries in the recent civil war and their erstwhile oligarchic supporters (Lys. 12.1–2, 35, 51, 60, 79–100; see chapter 6). A few years later, the speaker of the Against Agoratus argues that his jurors should consider Agoratus their enemy because Agoratus’ denunciations to the Thirty resulted not only in the death of his kinsman Dionysodorus but in the executions of numerous Athenians friendly to the democracy (Lys. 13.2). Moreover, the men executed as a result of Agoratus’ denunciations had enjoined (ejpevskhyan, the technical term for a dying injunction: above, p. 64) all their philoi to avenge them; since the dead were benefactors of the democracy, the jurors should consider themselves

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philoi of the dead and thus bound by their dying injunctions to exact vengeance upon Agoratus (§ 92; see chapter 7).

Execution of judgment If convicted at trial, a killer incurred a penalty of either execution or exile, depending on the circumstances of his case (above, pp. 59–60). In enforcing both of these penalties, the law and the mechanism of the Athenian state exercised some degree of intervention in the private enmity between the convicted killer and the family of his victim. In capital cases, as Demosthenes informs us, a]n de; dovxh/ ta; divkai j ejgkalei'n kai; e{lh/ to;n dedrakovta tou' fovnou, oujd∆ ou{tw kuvrio~ givgnetai tou' aJlovnto~, ajll∆ ejkeivnou me;n oiJ novmoi kuvrioi kolavsai kai; oi|~ prostevtaktai, tw'/ d∆ ejpidei'n didovnta divkhn e[xestin, h}n e[tax∆ oJ novmo~, to;n aJlovnta, pevra d∆ oujde;n touvtou. If [the prosecutor] is deemed to bring a just charge and convicts the perpetrator of the killing, even so he does not gain authority over the convicted man. Rather, the laws and the assigned officials have the power to punish him; the prosecutor may look on as the convict pays the penalty that the law has prescribed but may do nothing beyond this. (Dem. 23.69)

While the victim’s relatives could not personally fasten the condemned to the board or administer the hemlock, the law allowed them to observe as the state took their revenge for them; this right to witness the execution of a kinsman’s killer represents an attenuation of the original claim on bodily revenge exercised by retaliatory killing.57 The impassioned pleas for the death penalty made by homicide prosecutors to Athenian juries (e. g., Ant. 1.27; Lys. 13.92ff.) demonstrate that state execution of killers satisfied both the prosecutor’s and the victim’s need for vengeance. Killers sentenced to exile received protection of two sorts: physical protection until they left Attica and legal protection once they were abroad. That the state exercised physical supervision, at least to a limited extent, over killers sentenced to exile before and as they left Attic soil is evident in the regulation cited by Demosthenes (23.72–73) that a man convicted of unintentional homicide must depart within a specified time and by an appointed route (to;n aJlovnt∆ ejp∆ ajkousivw/ fovnw/ e[n tisin eijrhmevnoi~ crovnoi~ ajpelqei'n takth;n oJdovn) in order to guarantee his safety (parascovnt∆ ajsfavleian). Once the killer entered exile, and as long as he obeyed the terms of his banishment, a clause in Draco’s homicide law (still in force in Demosthenes’ day: IG I3 104.26–29 = Dem. 23.37 [lex]) offered him protection in the form of sanctions against anyone who killed him or was complicit in his killing: eja;n d]ev [t]i~ to;[n ajn]dr[ofovnon ktevnei e] ai[tio~ e\ fovnou, ajpecovmenon ajgora']~ ejforiv[a]~ k[a]i; [a[qlon kai; iJero'n ∆Amfiktuoniko'n, o{sper to;n ∆Aqen]ai'on k[tevna]n[ta, ejn toi'~ aujtoi'~ ejnevcesqai: diagignovsken de; to;~] ej[f]evta[~]. And if anyone kills the killer or is responsible for his killing, when the killer has avoided the border market and Amphictyonic games and rites, he shall be liable to the same penalty as the killer of an Athenian; and the ephetai shall decide the case.

57 Cf. Glotz (1904) 308–9; Treston (1923) 226–28; Blundell (1989) 30–31.

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Provided that they avoided places where Athenians were likely to congregate – the “border market,” presumably located on the frontier between Attica and Boeotia, and festivals sponsored by the Delphic Amphictyony, of which Athens was a member – exiled killers thus received the same legal protection as applied to ordinary Athenian citizens.58 Naturally, an exiled killer forfeited this immunity if he returned to Attica without being pardoned: in such cases, Draco’s law allowed anyone who encountered him to arrest him summarily or to kill him ([to;~ de; ajndrofovno~ ejcsei'nai ajpoktevnen kai; ajpavgen ejn] te'i eJmed[ape'i]: IG I3 104.30–31; cf. Dem. 23.28 [lex]).59 However, to prevent overzealous relatives of the victim from forcibly repatriating an exiled killer so as to declare him in trespass and punish him accordingly, Athenian law decreed that “if anyone drives, carries, or leads across the border [into Attica] one of the killers who have gone into exile and whose property is unconfiscated, he shall owe the same as if he committed the act in our country” (eja;n tiv~ tina tw'n ajndrofovnwn tw'n ejxelhluqovtwn, w|n ta; crhvmata ejpivtima, pevra o{rou ejlauvnh/ h] fevrh/ h] a[gh/, ta; i[sa ojfeivlein o{sa per a]n ejn th/' hJmedaph/' dravsh/, Dem. 23.44 [lex]).60 As indicated by the consequences of returning to Attica and the restrictions imposed on travel outside Attica, with the attendant forfeiture of legal protection upon violation of the stated terms, the exiled killer was an outlaw;61 but even so he retained some legal rights. The cumulative effect of these clauses of the homicide law was to guarantee exiled killers legal (if not practical) protection from retaliation by the relatives of their victims so long as they obeyed the terms of their sentences; the sentence of the law and the authority of the Athenian state thus superseded the retributive interests of the victim’s kin not only in Attica but even abroad.

58 Stroud (1968) 53–54; Gagarin (1981) 58–61. 59 MacDowell (1963) 121–22; Stroud (1968) 55 n. 102; Gagarin (1981) 61. 60 This law, which, in light of the illegibility of most of IG I3 104, may well be of Draconian provenance (as Demosthenes asserts), has sometimes been taken as evidence that Draco (or Solon: cf. Ruschenbusch [1968] F 17) instituted wergild or sanctioned compensation for homicide. However, the law does not address the killing of an exiled killer but only the transportation of an exiled killer into Attica, which was presumably (as suggested by the phrase ta; i[sa ojfeivlein) a fineable offense analogous to a kidnapping committed within Attica (o{sa per a]n ejn th/' hJmedaph/' dravsh/). 61 On exile for homicide as outlawry (atimia) and the exiled killer as an outlaw (atimos) in both the Archaic and the Classical period see Hansen (1976) 77–78. The Icelandic institution of outlawry provides a broad parallel (see Miller [1990], esp. 238–39; Byock [2001] 231–32), but there are some significant differences between Icelandic outlawry and Athenian atimia, the most fundamental of which was that Icelandic outlaws in exile received no legal protection and could be killed with impunity.

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CONCLUDING ENMITY

According to the evidence of the orators and lexicographers, the state of enmity arising from a homicide could be composed in two ways. One form of composition was a formal pretrial reconciliation between the accused killer and his victim’s kin, which publicly resolved the dispute and forestalled prosecution for either intentional or unintentional homicide. The other form of composition became available only after a conviction for unintentional homicide, in which case the victim’s kin might formally terminate enmity by pardoning the exiled killer and thereby readmitting him into Attica. To secure either a pretrial reconciliation or a post-conviction pardon, the killer normally paid compensation to his victim’s family as the price of concluding hostilities.

Reconciliation in lieu of trial Access to and familiarity with their legal system notwithstanding, Athenians in the Classical period frequently opted, or at least attempted, to settle their disputes without recourse to the law, or even out of court after legal proceedings had been initiated. Under such circumstances, disputants commonly achieved reconciliation (however fleeting) by means of monetary compensation paid by the offender to the wronged party. Aeschines, for example, lambasted his arch-enemy Demosthenes for allegedly dropping two lawsuits for personal injury upon the payment of compensation by the respective attackers: Demomeles of Paeania, Demosthenes’ first cousin, whom Demosthenes had accused of intentionally wounding him (Aeschin. 2.93; 3.51); and Meidias, who had punched Demosthenes in the face in front of a packed Theater of Dionysus on 15 Elaphebolion 348 and, after Demosthenes had secured a preliminary verdict against him in the Assembly, had paid Demosthenes the hefty sum of 30 minae to avert further litigation (Aeschin. 3.51–52; above, pp. 21–22). While Aeschines, motivated by his hatred of Demosthenes, scorns these payments as base bribery, the frequency of unapologetic references to extralegal compensation by Athenian litigants indicates that Athenians by no means regarded out-of-court settlement as inherently less honorable than litigation; in many instances it was clearly preferable. In cases of homicide, the possibility of reconciliation between the accused killer and his victim’s kin in lieu of trial has already been raised by the example of the chorêgos in Antiphon 6. The chorêgos claims that, shortly after the accidental death of the chorister Diodotus, Diodotus’ family concluded a public reconciliation with him during the festival of the Diipoleia,62 near the Parthenon, in the presence of witnesses (§ 39). Afterwards the two sides behaved as friends, “associating and conversing” in public and in each other’s homes. Accordingly, says the chorêgos, members of the Council of 500 reacted with shock when Diodotus’ kinsmen attempted to initiate homicide proceedings against him the day after the councillors 62 On Scheibe’s emendation of ejn th/' povlei to ejn Diipoleivoi~ see Gagarin (1997) 241.

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had personally witnessed their reconciliation (§ 40). Now, the chorêgos is noticeably silent regarding the terms of this reconciliation, but the question naturally arises why and how Diodotus’ relatives would have come to terms with the man they had accused of responsibility for the death of a kinsman. Presumably, if his account of the reconciliation is accurate, the chorêgos paid compensation to Diodotus’ family, and he omits this detail from Antiphon 6 since such payment would have constituted an acknowledgement of his guilt in Diodotus’ death and, moreover, probably violated the law (see below). According to Harpocration and the Suda, both citing fourth-century sources, payments made to avert trial for homicide were called hypophonia: ÔUpofovnia: ta; ejpi; fovnou didovmena crhvmata toi'~ oijkeivoi~ tou' foneuqevnto~, i{na mh; ejpexivwsin: Deivnarco~ ejn tw'/ kata; Kallisqevnou~ kai; ejn tw'/ kata; Formisivou, Qeovfrasto~ Novmwn i~ v. Hypophonia: money paid for a homicide to the relatives of the person killed so that they do not prosecute. Deinarchus, Against Callisthenes [fr. XIX.13 Conomis] and Against Phormisius [fr. X.5 Conomis]; Theophrastus, Laws, book 16 [fr. 12 Szegedy-Maszak]. (Harpo. s.v. uJpofovnia) ÔUpofovnia: ta; ejpi; tw'/ fovnw/ didovmena crhvmata toi'~ oijkeivoi~ tou' ajnaireqevnto~ uJpo; tou' th;n aijtivan e[conto~, o{ti ajnhv/rhken, i{na mh; ejpexivwsin, ejpi; tw'/ mh; ejpexevrcesqai mhde; genevsqai th;n tou' fovnou divkhn uJpofovnia kalei'tai. ou{tw~ Deivnarco~ kai; Qeovfrasto~. Hypophonia: money paid for a homicide to the relatives of the person killed by the person charged with the killing, in order that they not prosecute, on condition that they not prosecute and a lawsuit for homicide (or ‘the dikê phonou’) not take place is called hypophonia; so Deinarchus and Theophrastus. (Suda s.v. uJpofovnia)

Another instance of the payment of hypophonia is alleged by the prosecutor who delivered the pseudo-Demosthenic speech Against Theocrines: …teleuthvsanto~ aujtw'/ tou' ajdelfou' biaivw/ qanavtw/, toiou'to~ ejgevneto peri; aujto;n ou|to~, w{ste zhthvsa~ tou;~ dravsanta~ kai; puqovmeno~ oi{tine~ h\san, ajrguvrion labw;n ajphllavgh. kai; th;n me;n ajrch;n h}n ejkei'no~ a[rcwn ejteleuvthsen, iJeropoio;~ w[n, para; tou;~ novmou~ h\rcen ou|to~, ou[te lacw;n ou[t∆ ejpilacwvn: uJpe;r w|n d∆ e[paqen ejkei'no~, mevcri touvtou scetliavzwn perihv/ei kai; favskwn eij~ [Areion pavgon Dhmocavrhn proskalei'sqai, e{w~ dieluvsato pro;~ tou;~ th;n aijtivan e[conta~. When his brother died a violent death, Theocrines behaved in such a way concerning him that, after looking for the perpetrators and discovering who they were, he took money and quit the matter. And, in violation of the laws, he held the office in which his brother died, as Sacral Commissioner, without being allotted to the position or to the vacancy. As for what his brother suffered, he went around complaining and saying that he would summon Demochares to the Areopagus, until he came to terms with the men responsible. ([Dem.] 58.28–29)63

Since the Areopagus only heard trials for intentional killing (above, p. 59), this passage demonstrates (regardless of the truth of the specific accusation against Theocrines) that hypophonia might be paid to forestall trial for intentional as well as unintentional homicide; we should note, too, that both Harpocration and the Suda define hypophonia as “money paid for a homicide,” without specifying the type of killing. In the case of an intentional killing, presumably, the victim’s relatives would be less 63 See MacDowell (1963) 8–9.

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likely to accept compensation in lieu of trial, and the price would be higher. While in most cases no stigma necessarily attended a compensated out-of-court settlement, Theocrines’ prosecutor clearly expected an Athenian jury to consider accepting hypophonia for a slain kinsman to be repellent, at least when the killing had been intentional. Moreover, while the speaker of [Demosthenes] 58 does not expressly characterize Theocrines’ payment of hypophonia as illegal, and accordingly it has been argued that Athenian law at least tacitly allowed compensation in lieu of trial,64 Draco’s jussive infinitives mandating the trial of accused killers (above, p. 51) and the absence of compensation from his preserved homicide law (above, p. 52) suggest that hypophonia were not only illegal in the Classical period but had been so since 621/0. The reconciliation alleged by the chorêgos in Antiphon 6 broke down; nonetheless, when combined with the testimony of [Demosthenes] 58, the chorêgos’ argument makes it clear that parties could be reconciled after a homicide and that such reconciliation signified that the victim’s kin was forgoing vengeance, including legal redress. The witnessed reconciliation ceremony said to have taken place in the wake of an alleged homicide in Antiphon 6 conforms to the Attic orators’ descriptions of other reconciliations that ended, or were supposed to end, non-homicidal disputes. These reconciliations were not simple private agreements between adversaries but involved third parties who witnessed the fact that the principals were formally renouncing their enmity: the speaker of Lysias 4, for example, asserts that mutual friends reconciled him and his prosecutor and names two of them, Philinus and Diocles (Lys. 4.2–4: above, p. 17); and in Hypereides’ Against Athenogenes Antigona reconciles the speaker (?Epicrates)65 and Athenogenes, who seal the reconciliation with a written contract (Hyp. 3.5–8). The statements of these and other litigants show that reconciled parties were supposed to behave as friends; yet these accounts consistently come from cases where the reconciliation failed – as attested by the very litigation that documents the unsuccessful resolution. Despite an alleged reconciliation, Diodotus’ family prosecutes the chorêgos for his killing; despite a documented reconciliation, the speaker of Lysias 4 stands accused of breaking into his prosecutor’s house and wounding him with a potsherd; and the prosecutor in Hypereides 3 brings an action for damage (dikê blabês)66 against Athenogenes for failing to disclose fully the debts of slaves he bought as a condition of their reconciliation. Such instances of failure naturally invite a pessimistic view of the efficacy of reconciliation in Classical Athens, but we should resist the conclusion that reconciliation never worked: if there had been no hope of a real resolution, Athenians would have had little motive to reconcile.67 64 E. g., Glotz (1904) 318–19; Bers (2003) 139 n. 31. 65 Whitehead (2000) 327. 66 For this identification of the lawsuit against Athenogenes see Kenyon (1893) xx; Blass (1887– 98) 3.2.83; Whitehead (2000) 267–68. 67 [Dem.] 58.29 may imply (in the word dieluvsato) a formal reconciliation between Theocrines and his adversaries (presumably tou;~ th;n aijtivan e[conta~ is a generalizing plural referring to the accused killer Demomeles and his philoi), in which case, based on the speaker’s silence regarding relations between the men after Theocrines dropped his lawsuit, we must assume the reconciliation was (represented as) successful.

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Nonetheless, the predominance of failed reconciliation agreements in the orators amply demonstrates that reconciliation by no means guaranteed lasting peace between the parties; rather, as occurs commonly in feuding societies,68 reconciliation signaled that enmity was in abeyance but not necessarily over. On this view, to employ an athletic analogy, a reconciliation between Athenian echthroi did not signal the end of the game69 but rather a “time out” of indefinite duration: while the “time out” might be infinitely prolonged – thus representing a real resolution of conflict – it remained subject to curtailment at any time as one party chose to resume hostilities. The preceding examples, which could be supplemented by numerous others, show that temporary reconciliation was the norm. Moreover, not every reconciliation represented an honest attempt to bury the hatchet, however briefly. As evidenced in Lysias’ Against Teisis (above, p. 18), Athenian enemies might feign reconciliation as a calculated move in order to catch their foes off guard: according to Teisis’ prosecutor, Pytheas convinced Teisis to reconcile with his enemy Archippus in order to lure him into a false sense of security; then, after the reconciliation, Teisis invited Archippus into his house, where he tied him to a column and assaulted him repeatedly with a whip.

Pardon after conviction In contrast to the stigma (and probable illegality) involved in pretrial reconciliation between an accused killer and the relatives of his victim achieved by means of monetary compensation, the pardon of a killer convicted by dikê phonou was explicitly sanctioned by Draco’s law (IG I3 104.13–19: above, pp. 54–55) and, to a more limited extent, by Classical Athenian law and custom. Whereas Draco had allowed even intentional killers to receive pardon from the victim’s surviving kin down to the degree of descendant first cousin once removed, in the Classical period pardon could only be granted to those convicted of killing unintentionally (Dem. 21.43; 37.59; 38.22; cf. 23.72; [Dem.] 43.57 [lex]); intentional killers were either executed or exiled for life. In contrast to the evidently revocable nature of pretrial agreements, the pardon of a convicted unintentional killer by the family of his victim signified a binding reconciliation between the parties, as evidenced by the rule that the pardon was indelible: unlike a pretrial reconciliation, pardon granted after conviction could not be withdrawn. As Demosthenes puts it, “if someone, having obtained a conviction of unintentional homicide and having clearly proven that the defendant is not free of pollution, afterward pardons and absolves him, he no longer has the power to exile the same man” (Dem. 37.59 = 38.22).70 Pardon by the victim’s kin after judgment thus had the same binding force as a deathbed pardon by the victim himself (above, p. 65). The difference, as Demosthenes notes, is that the victim’s pardon barred prosecution of his killer and was valid regardless of the cir68 Black-Michaud (1975) 86, 91; Miller (1990) 259. 69 For the analogy of feuds to games see, e. g., Black-Michaud (1975) 25–26; Cohen (1995) 88. 70 MacDowell (1963) 125.

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cumstances of the killing, including the killer’s intent: “as for those whom the laws sentence to banishment, exile, and death upon conviction, once they are absolved, this word [scil. ajfivhmi, ‘I absolve’] releases them from all terrors” (ou}~ ejkpivptein kai; feuvgein, a]n aJlivskwntai, kai; teqnavnai prostavttousin oiJ novmoi, touvtou~, eja;n ajfeqw'sin a{pax, aJpavntwn ejkluvei tw'n deinw'n tou'to to; rJh'ma, Dem. 37.59). Demosthenes’ mention of capital punishment as one of the “terrors” from which a killer is freed shows that a homicide victim could grant absolution even to an intentional killer – a power not granted to the victim’s surviving kin after the killer’s conviction. While nowhere explicitly stated in the sources, it is generally, and no doubt correctly, assumed that post-conviction pardon, like pretrial reconciliation, was usually contingent upon the payment of a negotiated sum by the killer to his victim’s kin.71 Money will have provided the family of the victim with a motive to reconcile with the killer; and absent the prospect of reconciliation, every banishment for homicide would have amounted to a life sentence.72 However, as neither the surviving provisions of Draco’s homicide law nor the Classical orators who quote and paraphrase it ever mention compensation in connection with pardon, we must conclude that the payment of compensation to secure pardon, like compensation paid to avert trial (hypophonia), was at best extralegal, if not illegal, under Draco’s law and remained so in the Classical period.

71 E. g., Panagiotou (1974) 429. 72 Treston (1923) 211–12 argued from the occurrence in Plato and Xenophon of the verbs ajpeniautei'n (e. g., Pl. Leg. 868c8) and ajpeniautivzein (e. g., Xen. Mem. 1.3.13) that the period of banishment for unintentional homicide was restricted to one year. The strongest evidence in favor of this position consists of the entry ajpeniautismov~ in Lex. Seg. (Synagôgê Lexeôn Chrêsimôn) p. 421 Bekker = Cunningham (2003) no. 1700, which reads, ajpeniautismov~: fugh; ejpi; ejniauto;n dia; fovnon ajkouvsion, kai; o{lw~ ajpodhmiva tou' tosouvtou crovnou ajpallagh'~ e{neka muvsou~ h] e[rwtov~ tino~. (“Apeniautismos: exile for a year on account of unintentional homicide; also, in general, absence from the country for a period of that length for the sake of release from some defilement or erôs.” MacDowell (1963) 122–23, however, rightly rejects Treston’s argument, noting that in Plato’s Laws ajpeniautei'n is used of periods longer than one year. Moreover, both the pardon provisions of Draco’s law (in particular the rule to;n kwluvonta kratei'n) and Demosthenes’ explicit statement that convicted unintentional killers remain in exile until pardoned by their victims’ kin (23.72) indicate that Athenian law placed no limit on the term of exile for unintentional homicide, and thus decisively refute both Treston and the Synagôgê.

CHAPTER 3 HOMICIDE, PIETY, AND THE FAMILY The previous chapter traced the normal course of the dispute between a killer and his victim’s kin in Classical Athens, from proclamation to prosecution to execution of judgment and pardon. The phrase “the normal course of the dispute” involves three assumptions: first, that the victim had surviving kin within the degree of descendant first cousin once removed; second, that these kinsmen elected (at least initially) to proceed against the killer by dikê phonou; and third, that the killer and his victim (and hence the killer and his prosecutor) were unrelated. Presumably most homicides in Classical Athens fell into this normative category. However, we have already encountered an exceptional case in Antiphon 1 (Against the Stepmother), where the defendant, accused of killing her husband, is prosecuted by her stepson and defended by her sons; thus the victim’s family, rather than presenting a united front against the killer as envisioned by Draco, is split in two, with one son conducting the prosecution and others the defense. This chapter and the next examine four cases that, like Antiphon 1, lie outside the mainstream of Athenian homicide law, in that the normative assumptions stated above do not hold. Included in the present chapter are disputes arising within a single kindred as a result of homicide: Euthyphro’s prosecution (or attempted prosecution) of his father for homicide, documented in Plato’s Euthyphro; Thudippus’ mortal wounding of his brother Euthycrates and its aftermath, reported in Isaeus 9 (On the Estate of Astyphilus); and two versions of an accusation of intrafamilial killing preserved in Demosthenes 22 (Against Androtion) and 24 (Against Timocrates). All these cases, with their various outcomes, emphasize the fundamental nexus in Athenian thought between homicide, religion, and the requirements of philia. PROSECUTING A KILLER IN THE FAMILY: PLATO’S EUTHYPHRO1 According to a frequently employed fourth-century rhetorical topos, opposing one’s own relatives in court brought shame upon the litigants; of course, the very orations in which speakers utter this sentiment show that it was frequently overlooked.2 But 1 2

On this case see especially Tulin (1996) 55–100; Kidd (1990); Panagiotou (1974). E. g., Lys. 32.1: “If the issues at stake were not important, gentlemen of the jury, I would never have allowed these boys to come before you, since I think it is most shameful to quarrel with one’s relatives...”; Isae. 1.6: “For I do not consider the fact that I am unjustly at risk to be the greatest of the evils confronting me, but rather the fact that I am involved in a lawsuit against family, against whom it is ignoble even to defend oneself”; [Dem.] 48.1: “For against my will, gentlemen of the jury, I have been forced to contend against Olympiodorus, although he is related to me and I am married to his sister...”. Had Athenians truly shrunk from bringing family disputes before the courts, we would possess one oration of Isaeus instead of twelve, and Dem-

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while it was one thing to wrangle over an inheritance with family members, it was quite another to accuse a kinsman of homicide, as we see in Plato’s Euthyphro.3 At the beginning of this dialogue, which takes place in 400/399 just prior to the trial of Socrates,4 the philosopher encounters Euthyphro (PA 5664) at the Royal Stoa and, true to form, interrogates him about his business there. Euthyphro responds that he has come to the office of the basileus in order to file a lawsuit for homicide against his father.5 The victim, a dependent free laborer (pelatês)6 who himself had killed a slave on Naxos, had been bound and thrown into a ditch pending a ruling by the Exêgêtai (above, p. 69) and had died of hunger and exposure (Pl. Euthyphr. 4c2– d5). From Euthyphro’s specific accusation against his father the dialogue progresses into an investigation of the definition and nature of piety,7 in which Euthyphro advances a concept of piety opposed to the mainstream Athenian view reflected in the opinion of his kinsmen and in Socrates’ argument.

The traditional concept of piety: Socrates and Euthyphro’s kin Ironically, in this dialogue between Euthyphro and Socrates, who has just been charged with (and will soon be executed for) impiety,8 it is the maverick philosopher who adopts the traditional moral stance.9 When Euthyphro informs Socrates that he has come to the Royal Stoa to file a lawsuit, Socrates naturally asks the identity of the defendant. Euthyphro admits that he is considered insane for prosecuting his case ( }On diwvkwn au\ dokw' maivnesqai, 4a1), since the defendant is his own father (4a6). Socrates’ initial reaction of surprise (ÔO sov~, w\ bevltiste; 4a7) turns into outright shock ( JHravklei~, 4a11)10 when Euthyphro informs him that the charge is homicide. The philosopher then draws a telling inference: [Estin de; dh; tw'n oijkeivwn ti~ oJ teqnew;~ uJpo; tou' sou' patrov~; h] dhvla dhv; ouj ga;r a[n pou uJpevr ge ajllotrivou ejpexh/'sqa fovnou aujtw'/.

3

4 5 6 7 8

9

10

osthenes might never have achieved his fame. On the topos see Blundell (1989) 37–38; Dover (1994) 187. The relevant section of the dialogue is Pl. Euthyphr. 3e–5e. Doubts have been raised about the historical reality both of the character Euthyphro and of his prosecution of his father, but these are unconvincing (Burnet [1924] 83–84; Kidd [1990] 214–15; Tulin [1996] 66–71). Tulin (1996) 65. On the legal merits of Euthyphro’s case see Panagiotou (1974). On the significance of this term see Kidd (1990) 219–21. Burnet (1924) 84; Kidd (1990) 221; on the concepts of piety and impiety in the Euthyphro see Bolkestein (1936) 129–31, 143, 145, 147, 149. For the charges of impiety and “corrupting the youth” brought against Socrates, who was tried by graphê asebeias, see Pl. Ap. 24b8–c1; Xen. Mem. 1.1.1; Diog. Laert. 2.40. On Socrates’ trial and execution see above, p. 63, and below, pp. 149–50. See Burnet (1924) 85 for the question of Euthyphro’s “orthodoxy.” Panagiotou’s ([1974] 423) characterization of the religious and moral objections of Socrates and Euthyphro’s kin as “an excuse for irresponsibility” is, in my opinion, anachronistic. For the invocation of Heracles as an expression of extreme surprise (cf. modern American “Jesus Christ!”) cf. Aeschin. 3.21; Dem. 21.66.

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So, then, it’s one of your relatives who was killed by your father? It must be; for there is no way you would prosecute him for homicide on behalf of a stranger. (4b4–6)

But Socrates’ conclusion proves to be incorrect: Euthyphro informs him that he intends to prosecute his father for killing a man on Naxos who was Euthyphro’s pelatês but not a member of his kin (4c3–d5). Owing to the identity of the accused and the circumstances of the laborer’s death, Euthyphro’s other relatives oppose the prosecution: as Euthyphro tells Socrates, tau'ta dh; ou\n kai; ajganaktei' o{ te path;r kai; oiJ a[lloi oijkei'oi, o{ti ejgw; uJpe;r tou' ajndrofovnou tw'/ patri; fovnou ejpexevrcomai ou[te ajpokteivnanti, w{~ fasin ejkei'noi, ou[t∆ eij o{ti mavlista ajpevkteinen, ajndrofovnou ge o[nto~ tou' ajpoqanovnto~, ouj dei'n frontivzein uJpe;r tou' toiouvtou -- ajnovsion ga;r ei\nai to; uJo;n patri; fovnou ejpexievnai. So my father and the rest of my family are angry because I am prosecuting my father on behalf of the killer, when my father did not kill him (as they say), and even if he absolutely did kill him, since the man was a killer, one should not be concerned about such a person, for it is impious for a son to prosecute his father for homicide. (4d5–e1)

According to Euthyphro, his family objects to his proposed lawsuit on three grounds: first, that Euthyphro’s father did not kill the laborer (ou[te ajpokteivnanti), who died from lack of sustenance and exposure to the elements; second, that the victim was himself a killer (ajndrofovnou ge o[nto~ tou' ajpoqanovnto~); and finally – and most importantly – that, regardless of the issue of guilt or innocence, prosecuting one’s own father for homicide amounts to impiety (ajnovsion ga;r ei\nai to; uJo;n patri; fovnou ejpexievnai). The reaction of Euthyphro’s kin is all the more understandable when we recall that, in cases of homicide, the normal and expected Athenian response was to demonstrate the solidarity of the family by prosecuting on behalf of a slain kinsman or by supporting an accused kinsman; Demosthenes, accordingly, states as a given that a person who suspects a philos of homicide does not prosecute him but leaves this to his enemies, the aggrieved kinsmen of his victim (to; de; timwrei'sqai kai; ejpexievnai toi'~ peponqovsin kai; toi'~ ejcqroi'~ paraleivpetai, Dem. 21.118).11 By contrast, the effect of Euthyphro’s proposed course of action is to explode the solidarity of his family; the consistency of the reactions displayed by Socrates and by Euthyphro’s kin evidences a generally-held Classical Athenian belief that prosecuting one’s own father, especially for homicide, transgressed the constraints of piety, but that the gravity of the impiety might be mitigated if the victim of the killing was also a kinsman (4b4–6, quoted above).

Euthyphro’s concept of piety Euthyphro, on the other hand, defines piety in radically different terms, and so proposes to fly in the face of accepted Athenian dogma by prosecuting his father for the killing of a non-kinsman, thereby establishing a relationship of presumptive enmity

11 Blundell (1989) 51.

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with not just any fellow kinsman, but his own father.12 Euthyphro indeed concedes that he is thought to be insane not only by Socrates (4a1, cited above) for the legal action he intends to mount, but by the Athenian people (katagelw'sin wJ~ mainomevnou: 3b9–c2) for his attitude toward piety in general, which his proposed lawsuit manifests. However, when Socrates expresses his surprise that Euthyphro would prosecute his father for homicide, Euthyphro responds, “It is laughable, Socrates, that you think it makes some difference whether the deceased is an outsider or a kinsman” (Geloi'on, w\ Swvkrate~, o{ti oi[ei ti diafevrein ei[te ajllovtrio~ ei[te oijkei'o~ oJ teqnewv~, 4b7–8). His relatives, says Euthyphro, fail to grasp the true nature of piety: they oppose his prosecution “with poor knowledge, Socrates, of the attitude of the divine toward piety and impiety” (kakw'~ eijdovte~, w\ Swvkrate~, to; qei'on wJ~ e[cei tou' oJsivou te pevri kai; tou' ajnosivou, 4e1–3). In reply, Socrates maintains his position, asserting the traditional Athenian attitude shared by Euthyphro’s kinsmen: “Aren’t you afraid that, in taking your father to court, you are committing an impious act (ajnovsion pra'gma)?” (4e7–8). Euthyphro responds with an emphatic (and, as it turns out, overconfident) negative: “There would be no use for me, Socrates, nor would Euthyphro be in any way different from the mass of mankind, if I did not possess accurate knowledge of all these sorts of things” (4e9–5a2). This is essentially the last word on the subject of Euthyphro’s lawsuit against his father, although he occasionally alludes to the topic later in the dialogue, as when, in response to Socrates’ request for a definition of piety and impiety, he clarifies his concept of the intersection between piety and legal justice: Levgw toivnun o{ti to; me;n o{siovn ejstin o{per ejgw; nu'n poiw', tw'/ ajdikou'nti h] peri; fovnou~ h] peri; iJerw'n klopa;~ h[ ti a[llo tw'n toiouvtwn ejxamartavnonti ejpexievnai, ejavnte path;r w]n tugcavnh/ ejavnte mhvthr ejavnte a[llo~ oJstisou'n, to; de; mh; ejpexievnai ajnovsion... Well, I say that piety is what I am doing now: prosecuting a wrongdoer who commits an offense connected with homicide or theft of sacred objects or some other such thing, whether the wrongdoer happens to be one’s father or mother or anyone else at all; not prosecuting is impiety.... (5d8–e1)

In asserting that piety (to; o{sion) demands the prosecution of all killers regardless of kinship ties, Euthyphro violates the contemporary Athenian norm, expressed both by his own family and by Socrates, that values kin solidarity foremost and can only consider countenancing the prosecution of a family member for homicide if the victim is a kinsman as well. Even then, as the following cases suggest, the desire to maintain the solidarity of the family at the cost of protecting a killer generally trumped the impulse to avenge his victim.

12 For the presumed strength of the father-son bond in Classical Athens cf. Isae. 9.17–19 (below, pp. 89 ff.).

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KILLING WITHIN THE FAMILY, 1: ISAEUS 9, ON THE ESTATE OF ASTYPHILUS13 The presence of complicated and contradictory pressures resulting from a killing by a close kinsman attested in the Euthyphro appears with even greater urgency and clarity in Isaeus’ ninth oration, On the Estate of Astyphilus. Like the Euthyphro, Isaeus 9 is largely concerned with piety (to; o{sion);14 but in this case, where the central issue is an inheritance, a homicide has been committed within the family, by one kinsman against another. On the Estate of Asyphilus was delivered by an anonymous Athenian in an inheritance dispute (diadikasia) with one Cleon, who claimed Astyphilus’ estate on behalf of his minor son Myronides in accordance with the provisions of a will allegedly deposited with Hierocles, Astyphilus’ maternal uncle. The de cuius and alleged testator, Astyphilus, died on a military expedition to Mytilene (§§ 1, 14); the fact that the campaign in question defies secure identification frustrates attempts to date the speech with greater specificity than the second quarter of the fourth century.15 The speaker of Isaeus 9 is Astyphilus’ uterine half-brother, and his rival for the estate, the son of Cleon, is Astyphilus’ descendant first cousin once removed (FaBrSoSo: § 2). Cleon, however, asserts that Astyphilus adopted his son per testamentum,16 thereby invalidating the speaker’s claim to Astyphilus’ estate on the basis of intestacy; the result is an inheritance dispute between collateral agnate branches of a single family line descended from the unidentified father of Thudippus and Euthycrates (see Figure 3.1).17 X of Araphen 1 2 Thudippus (I) (PA = APF 7252) Euthycrates (PA = APF 5600) = Hierocles’ sister = Theophrastus Astyphilus (PA = APF 2665) Cleon (PA = APF 8669)

speaker

Anaxippus

Myronides (PA = APF 10510) Thudippus (II) (PA = APF 7253)

Figure 3.1. Family tree for Isaeus 918 13 On this speech see the masterly commentary of Wyse (1904). 14 See Bolkestein (1936) 104, 172, 176. 15 Wyse (1904) 627; Blass (1887–98) 2.561 (terminus post quem 371); Wevers (1969) 10, 18, 25 (post 371; ca. 370 or 369); Rubinstein (1993) 120 (ca. 369); Forster (1927) 325 (ca. 366). 16 Childless Athenians commonly resorted to testamentary adoption in hopes of preserving their direct family lines: see Humphreys (1980) 99; Rubinstein (1993) 68–76. 17 On the identification of the litis personae see Wyse (1904) 627–28 and the references in the following note. 18 Kirchner (1901) 1.579; Wyse (1904) 625; Wevers (1969) 90; Davies (1971) 228–30, Table II. Kirchner and Davies have Thudippus II as the elder son of Cleon and Myronides as the younger son; Wevers vice versa. “Myronides son of Cleon of Araphen” served as prytaneus of the

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In Isaeus 9, the speaker attacks the authenticity of the will produced by Hierocles and allegedly deposited with him by Astyphilus before his final campaign. Relying heavily on arguments from probability, the speaker offers as evidence of the fraudulence of the will the apparent prescience of Astyphilus, who had served on numerous prior campaigns without drafting a will (§ 15); allegations that Hierocles had concocted the will and sold the position of heir to the highest bidder (§§ 22, 24); and the terms of the will itself, in particular Astyphilus’ alleged selection of Cleon’s son Myronides as his adopted son and heir.

Fratricide and the genesis of intrafamilial enmity In sections 16 through 21, the speaker endeavors to prove that Astyphilus could not have adopted Cleon’s son, due to a preexisting family quarrel. In the generation before Astyphilus, two brothers, Thudippus and Euthycrates, had clashed over the division of their patrimony following the death of their father ca. 410.19 The argument escalated into a fight in which Thudippus mortally wounded Euthycrates. The speaker gives this account of Euthycrates’ demise: Eujqukravtei ga;r, w\ a[ndre~, tw'/ patri; tw'/ ∆Astufivlou ai[tio~ genevsqai levgetai tou' qanavtou Qouvdippo~ oJ Klevwno~ toutoui>; pathvr, aijkisavmeno~ ejkei'non diafora'~ tino~ aujtoi'~ genomevnh~ ejn th/' nemhvsei tou' cwrivou, kai; ou{tw~ aujto;n diateqh'nai w{ste ejk tw'n plhgw'n ajsqenhvsanta ouj pollai'~ hJmevrai~ u{steron ajpoqanei'n. For, gentlemen, Thudippus, the father of Cleon here, is said to have been responsible for the death of Euthycrates, the father of Astyphilus. He assaulted him when a disagreement arose over the partition of their land, and Euthycrates was in such bad shape that he fell ill as a result of the blows and died not many days later. (§ 17)

In the brief period between the fight and his death, Euthycrates issued an injunction to his household: wJ~ dev, o{te ajpevqnh/sken Eujqukravth~ oJ path;r ∆Astufivlou, ejpevskhye toi'~ oijkeivoi~ mhdevna pote; eja'sai ejlqei'n tw'n Qoudivppou ejpi; to; mnh'ma to; eJautou', touvtwn uJmi'n to;n e[conta th;n thqivda th;n ∆Astufivlou mavrtura parevxomai. As to the fact that, as Euthycrates, the father of Astyphilus, lay dying, he enjoined his family never to allow any of the family of Thudippus to come to his tomb, I shall furnish to you as a witness the husband of Astyphilus’ aunt. (§ 19)

tribe Aegeis ca. 350 (IG II2 1747.30–31); “Thudippus of Araphen” (our Thudippus II) served as trierarch in the archonship of Cephisodorus (323/2: IG II2 1631.442–44, 470–73) and is presumably the same Thudippus who was executed along with Phocion in 318 (Plut. Phoc. 35–36). According to Athenian naming custom, we would expect the elder son to be given his grandfather’s name; on the other hand, the chronological context in which we find the brothers’ names suggests (but does not prove) that Myronides was older than Thudippus II. The balance of the evidence supports the latter view; perhaps Myronides, the elder son, received a name from the oikos into which Thudippus I had been adopted. 19 Davies (1971) 228–30.

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Owing to this rift within the family, the speaker argues, it is unthinkable that Astyphilus, the son of Euthycrates, would even speak to Cleon’s son, the grandson of Thudippus, much less adopt him by will and thereby institute him as heir to the estate in dispute. In actuality, according to the speaker, the fratricide resulted in a situation of intrafamilial enmity. The speaker’s specific goal in narrating Thudippus’ killing of Euthycrates is to prove that Cleon was Astyphilus’ worst enemy; accordingly, in describing the nature of the relationship between Astyphilus and Cleon, he uses the loaded and definitive term echthros (above, pp. 15–29) in the superlative, promising to his jury, “I will demonstrate to you that Astyphilus was the most hostile of all men to Cleon” (ejpideivxw ga;r uJmi'n e[cqiston aJpavntwn o[nta ∆Astufivlon Klevwni, § 16). From this point on, the speaker continually depicts Cleon and Astyphilus, and more generally the two branches of the family, as enemies. In § 20 Astyphilus “was at odds with Cleon his whole life” (to;n a{panta crovnon diavforo~ h\n Klevwni); in § 23 Cleon and his son are Astyphilus’ “worst enemies” (ejcqivstou~: cf. § 16); in § 31 Cleon is “one of [Astyphilus’] enemies” (ejcqrw'n tino~); in § 36 Cleon and his son are again ejcqivstou~ to Astyphilus; and finally in § 37 Cleon is polemiwvtato~ to Astyphilus. Isaeus’ choice of words serves figuratively to intensify the severity of the breach as the speech progresses: Cleon goes from being “at odds” (diavforo~) with Astyphilus – the normal term for family members involved in a quarrel20 – to being in a state of enmity (ejcqrov~//e[cqisto~) with him; and at the conclusion of the speech the connotation of polemiwvtato~, normally used of an enemy in war,21 suggests that Cleon and Astyphilus not only lack kinship ties but are not even fellow citizens.

Dying injunction, funerary cult, and the continuation of enmity In § 19, quoted above, the speaker informs his jury that, in the days before succumbing to his wounds, Euthycrates issued a dying injunction, for which the speaker uses the technical term, ejpevskhye (see above, pp. 64–68). Yet Euthycrates’ final instructions to his family pale in comparison with the standard dying injunction, in which a homicide victim commanded his surviving kin to avenge his death by prosecuting his killer. Rather than ordering vengeance on Thudippus, Euthycrates merely prohibits Thudippus’ descendants from visiting his tomb; presumably he issues his dying injunction in this mitigated form because his killer is his own brother. His comparative leniency may stem from kin sentiment, practical motives, or both; and while the former is merely a matter of conjecture, the latter is easily explained in light of the requirements of the dikê phonou. Euthycrates is effectively barred from ordering vengeance on Thudippus in the standard fashion, whether he wishes to do so or not: at the time of his mortal wounding, his son Astyphilus is a small boy, and 20 For the use of diavforo~//diafevrein to describe a dispute between relatives cf. Lys. 32.1; Isae. 1.9–10 (where e[cqra and e[cqisto~ also occur), 20, 30, 33 (also e[cqra); 4.26 (below, p. 99). 21 LSJ9 s.v. polevmio~; Blundell (1989) 39, citing the parallel of Dem. 23.56 for the use of polevmio~ to describe a personal enemy. See above, p. 15.

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his remaining would-be avenger is the brother who killed him. William Wyse, the great commentator on Isaeus, expresses skepticism regarding the totality of the speaker’s account of Euthycrates’ death, since evidently Thudippus was never prosecuted for the killing.22 But the family’s failure to bring Thudippus to justice does not compromise the speaker’s credibility, since, with the victim’s son Astyphilus too young to mount a lawsuit, the responsibility for prosecution will have fallen in the first instance to Thudippus himself. Euthycrates, therefore, presumably recognized the futility of issuing the standard dying injunction and realized that barring Thudippus and his descendants from his tomb probably represented his best viable option.23 In Archaic and Classical Athens, death-cult functioned as a defining aspect of kinship. Participation in the funerary cult, like the prosecution of a dikê phonou (above, pp. 55–56, 69–71), asserted an individual’s familial relationship to the deceased. This phenomenon makes its earliest appearance in the funerary legislation of Solon, who permitted women under sixty years of age to attend the laying-out of the corpse (prothesis) and the funeral procession (ekphora) only if they were related to the decedent within the degree of descendant first cousin once removed (ejnto;~ ajneyiadw'n, [Dem.] 43.62 [lex]: above, p. 70). After the funeral, maintenance of the tomb, too, fell to the decedent’s kin and descendants: by the fourth century, among the questions posed to a candidate for office at his dokimasia was “Do you have a family tomb, and where is it?” ([Arist.] Ath. Pol. 55.3).24 As observed above (p. 70), Solon imposes the same kinship restriction upon female participation in the funeral procession as Draco does upon (male) participation in the dikê phonou: in each case the respective lawgiver requires a relationship to the decedent within the degree of descendant first cousin once removed. The same determinative limit appears in Athenian inheritance law, which the Classical Athenians unanimously and correctly attributed to Solon. Under Solon’s provisions, when a decedent dies intestate, the estate devolves upon non-ascendant agnate (pro;~ patrov~, patrilateral) relatives of the decedent in fixed succession down to and including children of first cousins; in the absence of eligible agnates, the estate is heritable by non-ascendant cognate (pro;~ mhtrov~, matrilateral) kin in the same order.25 Again, whether Solon simply borrowed his cutoff point from Draco or both 22 Wyse (1904) 636. 23 The frustration that Euthycrates’ kinsmen, and others in similar circumstances of killing within the kindred, may well have felt due to the practical impossibility of vengeance is poignantly expressed by the author of Beowulf. Haethcyn has slain his brother Herebeald (apparently unintentionally) with an errant bowshot; Hrethel, the father of the two brothers, cannot exact either vengeance or compensation from Haethcyn, since they are kinsmen (2435–43), and consequently perishes from grief and frustration (2460–71). See Seebohm (1911) 63–64, 71; Klaeber (1950) 271. 24 Cf. Dem. 57.67; Rhodes (1993) 618; Phillips (2004) 61; Humphreys (1980). 25 [Dem.] 43.51 (lex) = Ruschenbusch (1966) F 50b: eja;n de; mh; w\si pro;~ patro;~ mevcri ajneyiw'n paivdwn, tou;~ pro;~ mhtro;~ tou' ajndro;~ [i. e., the decedent] kata; taujta; kurivou~ ei\nai. Cf. Isae. 7.22 (an inaccurate paraphrase: see Wyse [1904] 566); 11.11–12. On Athenian intestate succession generally see Lipsius (1905–15) 540ff.; Harrison (1968–71) 1.130ff.; Patterson (1998) 83.

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legislators made use of an older and more traditional Athenian kinship boundary is open to question; what is clear is that, beginning with Draco’s legislation, the kin group within and including descendant first cousins once removed enjoys a set of rights with respect to the decedent (and, starting with Solon, with respect to the decedent’s estate) that is denied to those further removed.26 Another, more explicit connection between the funerary duty and the right of succession to the decedent’s estate appears in a law authored in or after 508/727 that compels the retrieval and burial of neglected corpses: Tou;~ d∆ ajpogignomevnou~ ejn toi'~ dhvmoi~, ou}~ a]n mhdei;~ ajnairh'tai, ejpaggellevtw oJ dhvmarco~ toi'~ proshvkousin ajnairei'n kai; qavptein kai; kaqaivrein to;n dh'mon, th'/ hJmevra/ h|/ a]n ajpogevnhtai e{kasto~ aujtw'n. ejpaggevllein de; peri; me;n tw'n douvlwn tw'/ despovth/, peri; de; tw'n ejleuqevrwn toi'~ ta; crhvmat∆ e[cousin: eja;n de; mh; h\/ crhvmata tw'/ ajpoqanovnti, toi'~ proshvkousi tou' ajpoqanovnto~ ejpaggevllein. In the case of those who die in the demes and whom no one retrieves for burial, let the demarch make a proclamation to the relatives to retrieve and bury [the decedent] and cleanse the deme on the day when each of them dies. In the case of slaves he shall issue the proclamation to the master, and in the case of free men to those who possess the property. If the decedent has no property, he shall issue the proclamation to the relatives of the decedent. [Penalties for delinquent demarchs follow.] ([Dem.] 43.57–58 [lex])28

The situation implied by the phrase “those who possess the [decedent’s] property” is not one in which the family is unaware that a relative has died – in that case the decedent would still theoretically possess his own property – but rather one in which the death is known but the decedent’s family has neglected to recover his body. We can therefore identify the individuals in possession of the decedent’s property as the claimants to his estate.29 Under the terms of the law, these would-be heirs bear the legal responsibility of burying the decedent; in the case of an insolvent decedent the duty devolves upon his family as a whole. The legislator thus compelled negligent heirs and relatives to conform to the normal practice whereby decedents received burial at the hands of their heirs. Significantly, the speaker of [Demosthenes] 43 cites this law immediately after Draco’s provisions on prosecution and pardon, thereby demonstrating that Athenians of the Classical period recognized the connection between the duty to prosecute a homicide and the right to claim an inheritance. As we shall observe below in connection with the funeral of Astyphilus, Isaeus’ clients commonly assert their performance of death-cult as proof of a close relationship, both familial and emotional, with a deceased kinsman. According to the standard topos employed in inheritance disputes, the order of succession (anchisteia) naturally and spontaneously asserts itself in the performance of funerary ritual be26 Wyse (1904) 566–67; Patterson (1998) 89. 27 The repeated occurrence of the demarch (dêmarchos) in this law indicates a Cleisthenic or postCleisthenic date, but further specification is a matter of conjecture: Humphreys (1980) 98, for example, proposes the possibility that the legislator was reacting to the plague that swept Athens in 430. 28 See Whitehead (1986) 137–38. 29 Rubinstein (1993) 71.

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fore it is contested in court with regard to the decedent’s estate. Thus Euthycrates’ dying injunction, which prohibits his brother Thudippus and Thudippus’ descendants from visiting his tomb and participating in his funerary cult, effectively cleaves his kin group in two, beginning with the performance of Euthycrates’ last rites. At this moment, according to the law of intestate succession, the respective descendants of Thudippus and Euthycrates still qualify as agnates – with the notable exception of the speaker of Isaeus 9, whose father Theophrastus comes from outside the kin group – and Euthycrates’ injunction has no dispositive effect on inheritances within the family. However, at some point after the death of Euthycrates,30 Thudippus was adopted into another family; and as of the delivery of Isaeus 9, Thudippus’ descendants, including his son Cleon and his grandson, Cleon’s son, remained in the adoptive oikos (§ 2). By the letter of Solon’s law, the out-adoption of Thudippus disqualified his descendants from intestate succession to Astyphilus’ estate;31 nonetheless, an Athenian jury might decide to privilege blood over adoption and accordingly award the estate to Thudippus’ grandson (SoSo) Myronides.32 Owing to this possibility, the speaker of Isaeus 9 emphasizes the fact that, with regard to the performance of funerary cult, loaded as it is with kinship significance, a schism has separated Euthycrates’ line from Thudippus’ since the issuance of Euthycrates’ dying injunction – a schism within the biological family that predates the technicality of Thudippus’ adoption. By stressing both Euthycrates’ injunction and Astyphilus’ funeral (see below), as well as the out-adoption of Thudippus, the speaker attempts to convince his jury that, for all practical purposes, the descendants of Euthycrates (in particular Astyphilus) and the descendants of Thudippus (Cleon and his son Myronides) no longer qualify as kin, despite their biological connection. The circumstances surrounding Euthycrates’ death and their ramifications for his son Astyphilus present an illuminating comparison with the dying injunction issued by Dionysodorus in Lysias 13 (above, pp. 66–68). Facing imminent execution, Dionysodorus enjoined his wife to inform their putative unborn son of his duty to avenge his father; Isaeus 9 helps to complete the sequence, as the speaker describes how Astyphilus, who was a small boy when his uncle killed his father, was told repeatedly as he grew to manhood about his father’s killing and his dying injunction.33 In Isaeus 9, as in Lysias 13, the speaker stresses the heritable nature of echthra, which was one of its defining elements (above, pp. 25–29). According to the speaker of Isaeus 9, who is a son of Euthycrates’ widow by her second husband Theophrastus, when Astyphilus was old enough to understand, the story of his father’s death affected him so strongly that he took his duty to keep 30 This is suggested by § 17 (quoted above, p. 90): Euthycrates and Thudippus presumably quarreled in the division of inherited land, which Thudippus would not have stood to inherit had he already been adopted out of the oikos. 31 Rubinstein (1993) 45, 51. 32 Wyse (1904) 626. 33 Similar phenomena occur frequently in the Icelandic sagas; for example, in Laxdæla saga 59– 60, Gudrun repeatedly reminds her sons of the killing of their father Bolli (§ 56) until they achieve the revenge she desires (§ 64).

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Thudippus’ household from his father’s tomb one step further and refused even to speak to Thudippus’ son Cleon: ∆Akouvwn toivnun tau'ta oJ ∆Astuvfilo~ kai; touvtou kai; tw'n a[llwn proshkovntwn eujqevw~ ejk paidivou, ejpeidh; tavcista h[rceto fronei'n, oujdepwvpote dielevcqh Klevwni, ajlla; provteron ejteleuvthsen, oujc hJgouvmeno~ o{sion ei\nai, toiauvthn aijtivan e[conto~ Qoudivppou peri; to;n auJtou' patevra, tw'/ ejkeivnw/ uJei' dialevgesqai. Hearing these things from this man [Astyphilus’ uncle by marriage (PaSiHu): see § 19] and his other relatives from childhood on, as soon as he began to exhibit rational thought, Astyphilus never spoke to Cleon at all but died before doing so, believing that it was impious (oujc...o{sion) to converse with Thudippus’ son, since Thudippus bore such grave responsibility in regard to his father’s death. (§ 20)

Thus for Astyphilus, as for Socrates and Euthyphro’s relatives in Plato’s Euthyphro, a homicide activates obligations of piety. Piety, and specifically obedience to his father’s dying injunction, prevented Astyphilus from speaking to Cleon and ensured the continuation of the enmity between Euthycrates’ and Thudippus’ descendants into the next generation. As further proof of the duration and intensity of this enmity, the speaker again invokes the argument from piety, citing Astyphilus’ attendance at religious festivals, where Cleon never accompanied him (§ 21). In contrast to the irreconcilable enmity between Euthycrates’ son Astyphilus and Thudippus’ son Cleon, relations between Astyphilus and the speaker’s immediate family were exceedingly intimate. As proof of this assertion, the speaker again cites the performance of religious ritual, which here provides positive evidence of familial closeness: Eij~ toivnun ta; iJera; oJ path;r oJ ejmo;~ to;n ∆Astuvfilon 〈o[nta〉 pai'da h\ge meq∆ eJautou' w{sper kai; ejme; pantach'/. kai; eij~ tou;~ qiaswvta~ tou;~ JHraklevou~ ejkei'non eijshvgagen i{na metevcoi th'~ koinwniva~. Further, my father took Astyphilus to the sacrifices everywhere with him when he was a boy, just as he took me. And he introduced Astyphilus to the thiasos [religious brotherhood]34 of Heracles so that he might be a member of the association. (§ 30)

A specific parallel appears in Isaeus 8 (see below, pp. 100–2), where the speaker presents his and his brother’s accompaniment of the de cuius Ciron (PA = APF 8443) at religious festivals and sacrifices in support of their claim to be his maternal grandsons:35 ÔHmei'~ toivnun kai; a[lla tekmhvria pro;~ touvtoi~ e[comen eijpei'n, i{na gnwvsesqe o{ti ejk qugatro;~ hJmei'~ Kivrwno~ ejsmevn. oi|a ga;r eijko;~ pavppon uJevwn ejx eJautou' qugatrov~, oujdepwvpote qusivan a[neu hJmw'n oujdemivan ejpoivhsen, ajll∆ ei[ te mikra; ei[ te megavla quvoi, pantacou' parhvmen hJmei'~ kai; sunequvomen. kai; ouj movnon eij~ ta; toiau'ta parekalouvmeqa, ajlla; kai; eij~ Dionuvsia eij~ ajgro;n h\gen ajei; hJma'~, kai; met∆ ejkeivnou te ejqewrou'men kaqhvmenoi par∆ aujtovn, kai; ta;~ eJorta;~ h[gomen par∆ ejkei'non pavsa~: tw'/ Diiv te quvwn tw'/ Kthsivw/, peri; h}n mavlist∆ ejkei'no~ qusivan ejspouvdaze kai; ou[te douvlou~ prosh'gen ou[te ejleuqevrou~ ojqneivou~, ajll∆ aujto;~ di j eJautou' pavnt∆ ejpoivei, tauvth~ hJmei'~ ejkoinwnou'men kai; ta; iJera; suneceirourgou'men kai; sunepetivqemen kai; ta\lla sunepoiou'men, kai; hu[ceto hJmi'n uJgiveian didovnai kai; kth'sin

34 On Athenian thiasoi see Parker (1996) 333–42. 35 Wevers (1969) 100–2.

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Part I: Homicide and Vengeance from Draco to Demosthenes ajgaqhvn, w{sper eijko;~ o[nta pavppon. kaivtoi eij mh; qugatridou'~ hJma'~ ejnovmizen ei\nai kai; movnou~ ejkgovnou~ eJwvra loipou;~ kataleleimmevnou~ auJtw'/, oujk a[n pote ejpoivei touvtwn oujdevn, ajlla; tovnd∆ a]n auJtw'/ parivstato, o}~ ajdelfidou'~ aujtou' nu'n ei\naiv fhsi. We can state other pieces of evidence in addition to these, so that you may know that we are the sons of Ciron’s daughter. As was natural for a grandfather with his daughter’s sons, he never conducted a sacrifice without us: whether he was making a small sacrifice or a large one, we were always there and sacrificed with him. Not only were we invited to events of this sort, but he also always brought us to the Rural Dionysia, and we watched with him, sitting next to him, and we celebrated all the festivals with him. When he sacrificed to Zeus the Guardian of Property, a sacrifice that he took most seriously, inviting neither slaves nor free strangers, but rather doing everything by himself, we participated in the sacrifice, helped to handle the victims and place them on the altar, and did the rest along with him. And he prayed that we be granted health and good profit, as was natural for a grandfather to do. Now, unless he believed we were his daughter’s sons and saw us as the only descendants left to him, he would never have done any of these things; instead he would have placed beside himself this man who is now claiming to be his brother’s son. (Isae. 8.15–17)36

The fuller description in Isaeus 8 helps to flesh out the briefer account in Isaeus 9. In each case the argument aims to establish a close familial and emotional relationship between the speaker and the de cuius by documenting the conduct of sacrifices, attendance at festivals, and other performances of religious ritual, which not only mark membership in a kin group and bind relatives to each other but evidence the favored status of certain individuals within the family. In keeping with his description of the connection between Astyphilus and his stepfather (the speaker’s father), the speaker of Isaeus 9 asserts that he had an excellent personal relationship with Astyphilus as well, in marked contrast to the enmity between Astyphilus and Cleon. “Examine, gentlemen,” he tells his jury, “how I was disposed toward my brother [i. e., Astyphilus]. First, I was raised with him since I was a boy. Second, I never quarreled with him (oujdevpote diavforo~ ejgenovmhn); rather, he loved me, as all our family and friends know” (§ 30). This description of the closeness between Astyphilus and the speaker, his half-brother, presents a direct verbal contrast with § 20, where the speaker alleges that Astyphilus was at odds with Cleon (diavforo~ h\n Klevwni) throughout his life.

Funerary commemoration and inheritance: kin solidarity or fragmentation? The defining cultic event in Isaeus 9 is the funeral of Astyphilus. The speaker presents the conduct of Astyphilus’ funeral as his first proof that he, rather than Cleon’s son Myronides, deserves to inherit Astyphilus’ estate. When Astyphilus’ body was brought home, the speaker says, he himself was away from Attica on campaign, and his father was ill; Cleon, on the other hand, reacted by immediately seizing possession of Astyphilus’ landed property on behalf of his son by embateu-

36 On the textual problems in this passage (which do not affect its sense) see Wyse (1904) 119 (app. crit.); Thalheim (1903) 127 (app. crit.).

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sis, a procedure that allowed an heir in the direct male line to assume possession of a decedent’s estate without delay for adjudication.37 The speaker continues: ejpei; d∆ ejkomivsqh ta; ojsta' tou' ajdelfou', oJ me;n prospoiouvmeno~ pavlai uJo;~ eijspepoih'sqai ouj prou[qeto oujd∆ e[qayen, oiJ de; fivloi 〈oiJ〉 ∆Astufivlou kai; oiJ sustratiw'tai, oJrw'nte~ to;n patevra to;n ejmo;n ajrrwstou'nta, ejme; de; oujk ejpidhmou'nta, aujtoi; kai; prou[qento kai; ta\lla pavnta ta; nomizovmena ejpoivhsan kai; to;n ejmo;n patevra ajsqenou'nta ejpi; to; mnh'ma h[gagon eu\ eijdovte~ o{ti ajspavzoito aujto;n ∆Astuvfilo~. And after my brother’s bones were brought home, the one who pretends to have been adopted as his son long ago [i. e., Myronides] neither conducted the prothesis nor buried him. Instead, Astyphilus’ friends and fellow soldiers, seeing that my father was ill and I was not at home, themselves conducted both the prothesis and all the other customary ceremonies. And they brought my father to the tomb, since they were well aware that Astyphilus loved him. (§ 4)

In Classical Athens, as in Solon’s time (above, p. 70), the funeral ceremony took place in three parts: the prothesis (exhibition), in which the body of the deceased was laid out in his home or the home of one of his relatives; the ekphora (“carryingout”), the procession from the site of the prothesis to the tomb; and the burial (taphê) in the tomb.38 The funeral, as we have seen, was the duty of the decedent’s family. This responsibility fell in the first instance upon any legitimate son(s) of the decedent, who by law automatically inherited his estate;39 the strength of the Athenian conviction that sons should bury their fathers is seen in a law that imposed this duty even upon sons whose fathers had sold them into prostitution, thereby forfeiting all other rights to filial maintenance (Aeschin. 1.13). That this obligation applied to adopted as well as biological sons and was a requirement of filial piety is shown by a passage in Isaeus 4, a case in which two brothers, Hagnon (PA = APF 164) and Hagnotheus (PA = APF 147), assert a joint claim to the estate of Nicostratus (PA 11013) against Chariades (PA 15306), who alleges that he is Nicostratus’ adopted son. The speaker, a friend of the brothers, attacks Chariades’ claim to adoption (and, therefore, to the estate) by asserting that Chariades did not bury Nicostratus, as piety would have required him to do had Nicostratus actually adopted him: o} de; mevgiston, kai; mavlista th'~ Cariavdou ajnaideiva~ katamarturei', tou'to skevyasqe. o{pou ga;r to;n aujto;n poihsavmenon ou[t∆ ajpoqanovnta ajneivleto ou[t∆ e[kausen ou[te wjstolovghsen, ajlla; pavnta toi'~ mhde;n proshvkousi parh'ke poih'sai, pw'~ oujk a]n ajnosiwvtato~ ei[h, o}~ tw'/ teqnew'ti mhde;n tw'n nomizomevnwn poihvsa~ tw'n crhmavtwn aujtou' klhronomei'n ajxioi'; But observe the most important point and the one that testifies most to Chariades’ shamelessness. When the man who adopted him died, he did not take the body up for burial, did not cre-

37 Isae. 3.59; 8.34; Rubinstein (1993) 45–47; Todd (1993) 220; Harrison (1968–71) 1.156; Lipsius (1905–15) 577. 38 Burkert (1985) 190–94; Humphreys (1980) 99; Morris (1992). 39 Solon’s testamentary law allowed Athenians to draft valid wills only in the absence of legitimate sons. [Dem.] 46.14 (lex): {Osoi mh; ejpepoivhnto, w{ste mhvte ajpeipei'n mhvt∆ ejpidikavsasqai, o{te Sovlwn eijshv/ei th;n ajrchvn, ta; eJautou' diaqevsqai ei\nai o{pw~ a]n ejqevlh/, a]n mh; pai'de~ w\si gnhvsioi a[rrene~...; Isae. 3.68: oJ ga;r novmo~ diarrhvdhn levgei ejxei'nai diaqevsqai o{pw~ a]n ejqevlh/ ti~ ta; auJtou', eja;n mh; pai'da~ gnhsivou~ katalivph/ a[rrena~. In the Icelandic sagas, too, legitimate sons, who are the heirs of first instance, are expected to bury their fathers: e. g., Laxdæla saga 66.

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This passage and many others from inheritance speeches demonstrate that Athenians of the Classical period posited a direct and fundamental connection between commemoration of the decedent in funerary rites and succession to the decedent’s estate: simply put, whoever conducted the funeral was heir presumptive to the estate.41 So, for example, the speaker of [Demosthenes] 43 complains, 40 See Wevers (1969) 113; Humphreys (1980) 98. 41 Humphreys (1980) 98. In Roman practice we find a similar relationship between heirship and commemoration of the decedent. Three Digest passages, all citing Ulpian, are especially informative. 1. Roman law regulated not only succession to the estate but also, and separately, succession to the funerary duty. Ulpian determined the latter as follows (D. 11.7.12.4 [Ulpian ad Ed. 25]): Funus autem eum facere oportet, quem decedens elegit: sed si non ille fecit, nullam esse huius rei poenam, nisi aliquid pro hoc emolumentum ei relictum est: tunc enim, si non paruerit voluntati defuncti, ab hoc repellitur. sin autem de hac re defunctus non cavit, nec ulli delegatum id munus est, scriptos heredes ea res contingit: si nemo scriptus est, legitimos vel cognatos: quosque suo ordine quo succedunt. “He whom the decedent has chosen should carry out the funeral. But if he has not done so, there is no penalty for this action, unless some reward for it has been left to him: for in that case, if he does not obey the will of the dead man, he is barred from the reward. But if the dead man took no precautions concerning this matter and the duty was not assigned to anyone, this matter falls to the testamentary heirs; if there is no testamentary heir, it falls to the heredes legitimi or to the cognates; each succeeds the others in order” (emphasis mine). Thus in the first instance the electee has the duty to commemorate; while in most cases the electee will also have been an heir, he performs his duty qua electee and not qua heir. If there is no electee, then the duty to commemorate devolves upon the heirs (testamentary or intestate). Thus the order of succession to the funerary duty is the same as the order of succession to the estate, with the modification that the electee stands in the first position. 2. Another citation of Ulpian in the same Digest title (D. 11.7.4 [Ulpian ad Ed. 25]) draws an even sharper line between commemorator and heir: Scriptus heres prius quam hereditatem adeat patrem familias mortuum inferendo locum facit religiosum, nec quis putet hoc ipso pro herede eum gerere: finge enim adhuc eum deliberare de adeunda hereditate. ego etiam si non heres eum intulerit, sed quivis alius herede vel cessante vel absente vel verente ne pro herede gerere videatur, tamen locum religiosum facere puto: plerumque enim defuncti ante sepeliuntur, quam quis heres eis existet. “An heir specified in the will, by burying a deceased paterfamilias before accepting the inheritance, makes the place of burial religious, but no one should assume that in this very act he is acting as the heir: suppose, for example, that he is still weighing whether to accept the inheritance. Moreover, I think that even if it is not the heir who buries the decedent but someone else (because the heir is negligent or absent or afraid lest he appear to act as the heir), nonetheless he makes the place religious, for the dead are often buried before any heir exists for them” (emphasis mine). A scenario in which a decedent receives burial while the question of inheritance is still open finds parallels in several speeches of Isaeus, although there the Athenian commemorators expressly link their performance of the funerary duty with presumed heirship (see below, pp. 99–102; cf. Humphreys [1980] 98–99). 3. Finally, Ulpian presents us with several scenarios in which the capacity to commemorate a decedent is disputed (D. 11.7.14.13 [Ulpian ad Ed. 25]): Idem Labeo ait, si prohibente herede funeraveris testatorem, ex causa competere tibi funerariam: quid enim si filium

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uJperanaivscunton dh; ou|toi kataskeuavzousi pra'gma, wJ~ a[ra dei' hJma'~ kai; ta;~ gunai'ka~ ta;~ hJmetevra~ tou' me;n swvmato~ tou' ÔAgnivou, o{te ejteteleuthvkei, klhronovmou~ ei\nai kai; poiei'n a{panta ta; nomizovmena, wJ~ proshvkonta~ kai; gevnei o[nta~ ejggutavtw, to;n de; klh'ron oi[esqai dei'n e[cein to;n JAgnivou tou' teteleuthkovto~ Makavrtaton. My adversaries are concocting an extraordinarily shameless scheme, whereby we and our wives are supposed to inherit Hagnias’ body after his death and perform all the customary rites, as his relatives and next of kin, while, in their opinion, Macartatus should have the estate of Hagnias, the deceased. ([Dem.] 43.65)

Such a situation, with a decedent’s nearest kinsmen having performed the funerary rites but then shut out of his estate, is, in the speaker’s words, “neither just nor pious” (ou[te divkaion ou[q∆ o{sion, § 65 infra). Several litigants in the corpus of Isaeus accordingly reference their performance of the funerary duty in order to corroborate or refute an alleged adoption, and thereby to bolster their claims to an inheritance.42 In the case that parallels Isaeus 9 most closely and has been touched upon briefly above, the performance of Nicostratus’ funeral by his patrilateral first cousins (ajneyioi; ejk patradevlfwn: FaBrSos) Hagnon and Hagnotheus43 strengthens their claim to Nicostratus’ estate and rebuts that of their rival Chariades, who claims to be Nicostratus’ adopted son: parevsconto d∆ uJmi'n mavrtura~ prw'ton me;n wJ~ ajneyioiv eijsin ejk patradevlfwn Nikostravtou, e[peita de; wJ~ oujdepwvpote ejkeivnw/ diavforoi h\san, e[ti de; kai; wJ~ e[qayan Nikovstraton, pro;~ de; touvtoi~ wJ~ Cariavdh~ ouJtosi; oujdamw'~ ou[t∆ ejnqavde ou[t∆ ejpi; strateuvmati e[crhto Nikostravtw/, e[ti de; kai; th;n koinwnivan, h|/ mavlisq∆ ou|to~ ijscurivzetai, yeudh' ou\san. And they furnished you with witnesses to the following: first, that they [Hagnon and Hagnotheus] are first cousins of Nicostratus, sons of brothers; secondly, that they were never at odds with him;44 further, that they also buried Nicostratus; in addition, that Chariades never associated with Nicostratus either here or on campaign; and also that the business partnership that Chariades especially relies upon is nonexistent. (Isae. 4.26)

testatoris heres eius prohibuit? huic contradici potest: ‘ergo pietatis gratia funerasti.’...et quid si testator quidem funus mihi mandavit, heres prohibet, ego tamen nihilo minus funeravi? nonne aequum est mihi funerariam competere? et generaliter puto iudicem iustum non meram negotiorum gestorum actionem imitari, sed solutius aequitatem sequi, cum hoc ei et actionis natura indulget. “Labeo also says that if you bury the testator although the heir forbids it, you have just cause for an action for funeral expenses. For example, what if the testator’s heir has forbidden his son to bury him? To him the response can be given, ‘Therefore you buried him out of piety.’ ...And what if the testator has entrusted the funeral to me, the heir forbids it, and I buried him nonetheless? It is not equitable that the action for funeral expenses be available to me? And, generally speaking, I believe that a just judge does not follow the simple action for maladministration of affairs, but, in a more liberal fashion, pursues equity, since even the nature of the action allows him this” (emphasis mine). In these situations Ulpian’s actors resemble Isaeus’ agonistic Athenians (especially in Isaeus 8: see below). Note also Ulpian’s concern for equity in comparison with Isaeus 9 (above, p. 94, with Wyse [1904] 626). On the epigraphical evidence for Roman commemoration of the dead and heirship see Saller-Shaw (1984), esp. 126; Morris (1992) 159; Saller (1994); Meyer (1990), esp. 75. 42 Cf. Rubinstein (1993) 68–76. 43 Davies (1971) 237–38. 44 Cf. Isae. 9.20, 31 (above, pp. 90–91).

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The converse of this argument appears in Isaeus 2, where the speaker uses his performance of Menecles’ (PA 9906) funeral to support his allegation of adoption and, therefore, his claim to Menecles’ estate: kai; ejgw; me;n oJ poihto;~ ejkei'novn te zw'nta ejqeravpeuon...kai; teleuthvsanta e[qaya ajxivw~ ejkeivnou te kai; ejmautou', kai; ejpivqhma kalo;n ejpevqhka, 〈kai; ta; trivta〉 kai; ta; e[nata kai; ta\lla pavnta ejpoivhsa ta; peri; th;n tafh;n wJ~ oi|ovn te kavllista, w{ste tou;~ dhmovta~ ejpainei'n a{panta~... And I, his adopted son, took care of [Menecles] when he was alive...and when he died I buried him in a manner worthy of both him and myself. I placed a fine marker over him, and I performed the third-day and ninth-day sacrifices at his grave as splendidly as I could, such that all the demesmen praised me... (Isae. 2.36)45

Here the speaker not only recounts his conduct of Menecles’ funeral but details his continuing performance of Menecles’ death-cult. His reference to the approval expressed by Menecles’ demesmen demonstrates that the funeral served not just to assert the commemorator’s relation to the deceased for the benefit of the family, but additionally to advertise the commemorator’s status to the wider community – which will have been helpful to him when would-be heirs later wrangled over the decedent’s estate. So closely was commemoration tied to succession in the Athenian mind that in some instances, as Wyse observed, “[t]he parties contended for the body as if it were one of the assets.”46 In Isaeus 8, immediately upon the death of the de cuius Ciron (PA = APF 8443) sometime between 383 and 363,47 two of his relatives, a grandson (DaSo)48 and a nephew (BrSo), allegedly suborned by Diocles (PA = APF 4061), the brother of Ciron’s widow, contested the right to conduct Ciron’s funeral, an act that would establish one of them as the putative heir (Isae. 8.21–22). The grandson, who delivered Isaeus 8, asserts that Diocles commenced his machinations immediately upon Ciron’s death (§ 38); his own statements show that he staked his claim with no less haste. The grandson arrived at Ciron’s house to remove the body, intending to take it to his own house for the prothesis, but Ciron’s widow prevailed upon him to allow the prothesis to take place in Ciron’s own home. The grandson then approached Diocles, bringing witnesses, and informed Diocles that the prothesis would occur at Ciron’s house; the witnesses were necessary because the grandson wanted to make it clear that, even though the prothesis would not take place in his home, he stood on his claim to the estate. According to Ciron’s grandson, Diocles did not oppose moving the prothesis but requested reimbursement for items he had purchased for the funeral and, by consenting to the grandson’s management of the funeral, tacitly conceded Ciron’s estate to him (§ 23). But when the grandson came to pay Diocles the next morning, Diocles claimed to have received payment from Ciron’s nephew – a subterfuge allegedly aimed at subverting the grandson’s claim to the inheritance. In the present 45 46 47 48

Wevers (1969) 113. Wyse (1904) 604. Davies (1971) 313. Possibly also named Ciron (Davies [1971] 315–16).

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lawsuit, the speaker’s opponents dispute his claim to be Ciron’s maternal grandson; yet, according to the speaker, they did not contest his relationship to Ciron at the time of the funeral arrangements, as they should have if he were not a kinsman: kaivtoi eij mh; h\n qugatridou'~ Kivrwno~, oujk a]n tau'ta diwmologei'to, ajll∆ ejkeivnou~ a]n tou;~ lovgou~ e[lege: ‘su; de; tiv~ ei\;; soi; de; tiv proshvkei qavptein; ouj gignwvskw sev: ouj mh; ei[sei eij~ th;n oijkivan.’ Now, if I were not Ciron’s daughter’s son, he [Diocles] would not have agreed to these arrangements but would have spoken these words: “Who are you? What right do you have to bury him? I don’t know you; you shall not enter this house.” (§ 24)

Had he not been a relative of Ciron, the speaker continues, he should have been barred not only from the negotiations concerning the funeral expenses but even from the funeral ceremonies themselves: “if Ciron were not my grandfather, my adversary should have expelled me, thrown me out, and prevented me from taking part in the burial” (kaivtoi kai; touvtw/ prosh'ken, eij mh; pavppo~ h\n moi Kivrwn, wjqei'n 〈kai;〉 ejkbavllein kai; kwluvein sunqavptein, § 26). This statement indicates that, although Solon’s law (above, p. 70) placed kinship restrictions only on female participation in funerals, in the Classical period men too might be excluded from funerary observances – if not by law, then by custom and at the discretion of the family – for lack of kinship with the deceased. Accordingly, in the pseudo-Demosthenic Against Leochares, upon the death of Leocrates (PA = APF 9089), his father Leostratus (PA = APF 9154) first barred Leocrates’ adoptive kin from participating in the funerary rites, then ejected them from Leocrates’ estate ([Dem.] 44.32–33);49 since, as we have seen, commemoration was so closely associated with succession, the first of these actions was clearly conceived and executed in preparation for the second. As Ciron’s ekphora and burial approached, both parties in Isaeus 8 continued their maneuvers; they had to do so quickly, as Solon’s law mandated that that the ekphora take place before sunrise on the day after the prothesis. In order to assert his rights as partial underwriter of Ciron’s funeral, the speaker considered seizing his grandfather’s body by force, presumably so as to conduct the ekphora from his own home, but decided against such a drastic act on the advice of friends. And so the remaining stages of the funeral took place as planned: the ekphora proceeded from Ciron’s house, and the speaker participated in the preliminary rites and the burial (§ 38). As Ciron was laid to rest in his tomb, however, his grandson finally cast restraint to the winds and delivered a speech exposing Diocles’ scheme (§ 27). Since Ciron’s grandson evidently saw no shame in recounting his disruption of his grandfather’s funeral to an Athenian jury – and even called witnesses to testify to his actions – we may conclude that even the burial of a kinsman could serve as an acceptable locus of agonistic competition within the family.50 The behavior of Ciron’s family in Isaeus 8 suggests that Athenian families were expected to keep the peace and maintain decorum during the prothesis, but at the burial the gloves might

49 Humphreys (1980) 98. 50 Wevers (1969) 102.

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come off51 – an attitude shared, as Wyse notes, by the kinsmen of Dicaeogenes, according to a fragment of Lysias’ oration concerning his estate: Kai; me;n dh; oujde; tou'to a]n e[coi Glauvkwn eijpei'n h] a[llo~ ti~ tw'n Dikaiogevnou~ suggenw'n, wJ~, o{te me;n prou[keito, w[knoun kai; hjscuvnonto lovgou~ peri; aujtou' poiei'sqai, ejxenecqevnto~ de; h] peri; tw'n crhmavtwn tina; mneivan ei[cete h] ta;~ qugatevra~ hjxiou'te diaita'sqai. And, as a matter of fact, neither Glaucon nor any other of Dicaeogenes’ relatives could say that, when Dicaeogenes was laid out [at the prothesis], they hesitated and were ashamed to discuss it,52 but when he was carried out [in the ekphora] they either made any mention of his property or saw fit to arbitrate concerning his daughters.53 (Lys. fr. 23 Thalheim = fr. XXIII.1 GernetBizos)

The funeral of a kinsman whose estate was in dispute could, therefore, be just as “aggressive” as the funeral of a homicide victim (above, pp. 69–71); the critical difference was that, while in the aftermath of a killing the victim’s relatives (ideally) displayed their solidarity by directing their aggression outward as a unit, in the case of a disputed inheritance the family publicly fragmented as individual kinsmen directed their aggression against each other. Finally, after Ciron’s burial and the attendant altercation, his grandson continued to advertise his contribution to the funerary expenses, thereby maintaining the validity, and the visibility, of his claim to Ciron’s estate. Seeking to bolster his position, the grandson consulted one of the Exêgêtai (above, p. 69), whose bailiwick encompassed the commemoration of the dead as well as the legal and customary procedures concerning homicide. Acting upon the advice of this official, he performed the ninth-day offerings at Ciron’s tomb, sparing no expense, so that people would conclude that he had underwritten his share of the funeral and would accordingly presume that he was Ciron’s heir.54 With the foregoing episodes from other Classical Athenian inheritance disputes in mind, we now return to Isaeus 9 and the funeral of Astyphilus. In describing Astyphilus’ funeral, the speaker argues that Cleon and his son have demonstrated by their actions that they have no familial connection to Astyphilus. Cleon’s son Myronides, who claims to have been adopted by Astyphilus, did not host Astyphilus’ prothesis and was absent from his funeral, thus neglecting two duties that law, custom, and piety dictated that sons must perform for their fathers and that would have been expected of Myronides had his adoption actually taken place. The speaker pointedly declares that Myronides “neither conducted the prothesis nor buried” 51 Wyse (1904) 606. 52 I assume that aujtou' refers to Dicaeogenes’ estate; it might, alternatively, refer to Dicaeogenes himself. 53 Presumably the daughters were the epiklêroi (above, p. 68) to Dicaeogenes’ estate. 54 Cf. the Icelandic Laxdæla saga 26–27: in his dying injunction, Hoskuld requests that his legitimate sons Bard and Thorleik give an equal share of his estate to his illegitimate son Olaf; in order to support his claim to inherit from Hoskuld, Olaf pays more than his share of Hoskuld’s funerary expenses. Although, like Olaf, the speaker of Isaeus 8 obviously has a financial motive, we need not conclude that “filial duty had nothing to do with the performance of the [funerary] rites; it was purely a matter of anticipated financial gain” (Wevers [1969] 101): one motive does not preclude the other.

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Astyphilus (ouj prou[qeto oujd∆ e[qayen, § 4: above, p. 97), and then calls witnesses to confirm his statement. Apparently Cleon was absent from the funeral as well, since, following the testimony to Myronides’ absence, the speaker contends that “even Cleon himself would not deny – and you have heard the testimony – that he did not bury Astyphilus” (§ 5). Rather than paying his last respects to Astyphilus, Cleon chose immediately to stake a claim to Astyphilus’ landed and other property on behalf of his son Myronides (§ 3: above, p. 96); in so doing he broke the law, as sons adopted per testamentum were not entitled to immediate entry to a decedent’s estate (embateusis) but had to apply to the eponymous archon and await adjudication of the inheritance (epidikasia).55 The speaker explains his own absence from Astyphilus’ funeral – which, as Astyphilus’ heir, he should have conducted – by stating that he was away from Attica on campaign (§§ 3, 4) when Astyphilus’ body was brought home. Owing to the speaker’s absence and his father’s infirmity, Astyphilus received his prothesis and ekphora from friends and fellow soldiers.56 Whereas Cleon and Myronides did not attend any part of the funeral, the speaker’s father (and Astyphilus’ stepfather) Theophrastus attended the burial despite his illness: the speaker explains that Astyphilus’ friends and comrades brought Theophrastus to the tomb because they knew of the close relationship between Theophrastus and Astyphilus (§ 4: above, p. 97). Theophrastus’ participation in Astyphilus’ funeral, his own ill health notwithstanding, together with the closeness between Theophrastus and the speaker and Astyphilus during Astyphilus’ lifetime, thus stands in stark contrast to the actions of Cleon and Myronides, whom the speaker portrays as motivated solely by greed and lacking in both piety and affection toward the decedent, and whose behavior in the aftermath of Astyphilus’ death presumptively rebuts Myronides’ assertion of kinship to Astyphilus and his consequent claim to Astyphilus’ estate. It is possible, however, to explain Cleon’s and Myronides’ failure to participate in Astyphilus’ funeral by reference to Euthycrates’ dying injunction. A generation before Astyphilus’ demise, Euthycrates had enjoined his descendants to bar the descendants of his brother Thudippus from his tomb (§ 19: above, p. 90). Astyphilus was the son of Euthycrates, and so presumably his tomb was adjacent to his father’s; hence Cleon, the son of Thudippus, may well have asserted that he and his son avoided Astyphilus’ burial out of pious respect for the last wishes of Astyphilus’ father Euthycrates: despite the out-adoption of Thudippus, he and his descendants, including his son Cleon and Cleon’s son Myronides, remained bound by the terms of Euthycrates’ dying injunction. In fact, the out-adoption of Thudippus solved what otherwise would have amounted to a logistical nightmare whenever Thudippus or any of his descendants died. Had Thudippus remained in the oikos of his birth, upon his death he would have been buried in close proximity to the very brother who had barred him and his descendants from his tomb; as a result of his adoption, however,

55 Isae. 3.1–2, 43; 5.6; [Dem.] 43.5; Wyse (1904) 284, 327; Harrison (1968–71) 1.158–62; Wevers (1969) 114. 56 For epigraphic evidence of commemoration by hetairoi see Humphreys (1980) 105.

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we may presume that he and his descendants received burial in the tomb of his adoptive family.57

Homicide as family business: the Araphenian neighbors The speaker of Isaeus 9 asserts that Thudippus’ killing of his brother Euthycrates was witnessed by Hierocles, the brother-in-law (SiHu) of Euthycrates and maternal uncle of Astyphilus, and also by neighbors of the two brothers in Araphen, a coastal deme in eastern Attica approximately six miles south of Marathon:58 ÔW~ de; tau't∆ ejsti;n ajlhqh', i[sw~ me;n kai; ∆Arafhnivwn polloi; tw'n tovte suggewrgouvntwn marturhvseian a[n moi, diarrhvdhn de; peri; thlikouvtou pravgmato~ oujk a]n e[coimi o{pw~ uJmi'n parascoivmhn. kai; ga;r aujto;n tuptovmenon ijdw;n IJeroklh'~, oJ to; grammatei'on favskwn par∆ eJautou' teqh'nai, oi\d∆ o{ti oujk a]n ejqelhvseie marturh'sai ejnantiva tai'~ diaqhvkai~ ai|~ aujto;~ ajpofaivnei. Perhaps many of the Araphenians who farmed with them at the time could bear witness for me to the truth of these things, but I would be unable to provide you with their explicit testimony regarding a matter of this magnitude. And in fact Hierocles, who claims that the will [of Astyphilus] was deposited with him, saw him [Euthycrates] being struck, but I know that he would refuse to give testimony against the will that he himself produces. (§ 18)

Hierocles then fulfills the speaker’s prediction by taking the oath of denial (exômosia).59 If the speaker’s allegations regarding the forgery of Astyphilus’ will are correct, Hierocles has a clear motive for silence: he claims to be the depositary of the will, which includes in its terms the conditional adoption of Myronides upon Astyphilus’ death (§§ 5–6, 18); and he allegedly made the rounds of the family offering to sell the inheritance to the highest bidder (§ 24). The apparent reticence of Euthycrates’ and Thudippus’ fellow demesmen, both immediately following Euthycrates’ death and at the present trial, is less obviously explained than Hierocles’ refusal to testify. Some have suggested that Thudippus procured the silence of his Araphenian neighbors by intimidation.60 This may be true, but we must consider another, more fundamental reason for the brothers’ neighbors to stay out of the affair. The Athenians, as we have seen, considered homicide to be first and foremost a matter to be dealt with by the family of the victim. Even if they saw Thudippus kill Euthycrates, as the speaker asserts, the brothers’ neighbors may well have considered Euthycrates’ death an affair best handled within Euthycrates’ family, especially since the same family provided both the killer, Thudippus, and an additional witness, Euthycrates’ brother-in-law Hierocles. Given the neighbors’ evident hesitation to intervene in the immediate aftermath of Euthycrates’ killing, it is not surprising that they should refuse to involve themselves at a much later date when the same family became embroiled in yet another internal dispute, this time over the estate of Euthycrates’ son. 57 58 59 60

Cf. Rubinstein (1993) 50–55, 75. Whitehead (1986) xxiii. Todd (1993) 97; Harrison (1968–71) 2.139; Lipsius (1909–19) 878. Whitehead (1986) 227–28; Fisher (1998) 60 with n. 27.

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KILLING IN THE FAMILY, 2: DEMOSTHENES 22 AND 24 In the mid-350’s, Demosthenes composed two speeches, Against Androtion (oration 22) and Against Timocrates (oration 24), for his client Diodorus (PA 3919).61 In pursuance of an ongoing dispute with Androtion (PA 915 = APF 913), a prominent politician of long standing,62 Euctemon (PA 5784) and Diodorus brought a graphê paranomôn against Androtion in 355, accusing him of proposing unconstitutional legislation; two years later Diodorus prosecuted Timocrates (PA = APF 13772) on the same charge. The opening chapters of these speeches contain similar, but not identical, descriptions of a lawsuit brought by Androtion that stemmed from an accusation of homicide within the family of Diodorus. The relevant passages read as follows: aijtiasavmeno~ gavr me, a} kai; levgein a]n ojknhvseiev ti~, eij mh; tuvcoi prosovmoio~ w[n touvtw/, to;n patevra wJ~ ajpevkton∆ ejgw; to;n ejmautou', kai; kataskeuavsa~ ajsebeiva~ grafh;n oujk ejp∆ ejmev, ajll∆ ejpi; to;n qei'ovn mou, gravya~ ajsebei'n ejmoi' suniovnt∆ eij~ taujto;n wJ~ pepoihkovti tau'ta, eij~ ajgw'na katevsthsen, o}n eij sunevbh tovq∆ aJlw'nai, tiv~ a]n ajqliwvter∆ ejmou' peponqw;~ h\n uJpo; touvtou; tiv~ ga;r a]n h] fivlo~ h] xevno~ eij~ taujtov pot∆ ejlqei'n hjqevlhsen ejmoiv; tiv~ d∆ a]n ei[ase povli~ pou par∆ eJauth'/ genevsqai to;n to; toiou't∆ ajsevbhma dokou'nt∆ eijrgavsqai; oujk e[stin oujde; miva. ejgw; toivnun tau'ta me;n ouj para; mikro;n ajgwnizovmeno~ par∆ uJmi'n ajpelusavmhn, ajll∆ w{ste to; pevmpton mevro~ mh; labei'n touvtou~ tw'n yhvfwn: toutoni; de; meq∆ uJmw'n peiravsomai kai; nu'n kai; to;n a[llon a{pant∆ ajmuvnesqai crovnon. For, after bringing against me an accusation that one would hesitate to voice unless he were similar to this man [i. e., Androtion] – namely, that I had killed my own father – and after trumping up a graphê asebeias, not against me but against my uncle, indicting him for associating in the same place with me, who had allegedly committed these acts, he brought the case to trial. If my uncle had been convicted then, who would have suffered more miserably at the hands of this man than I? What philos or stranger would ever have been willing to associate with me? What city anywhere would have let dwell within it a man deemed to have committed such an impiety? Not one. But I pled my case before you and was acquitted by no small margin, but such that my adversaries did not receive one-fifth of the votes. With your help, I will endeavor to defend myself against this man here, both now and for the rest of my life. (Dem. 22.2–3) aijtiasavmeno~ gavr m∆ a} kai; levgein a[n ti~ ojknhvseien eu\ fronw'n, to;n ejmautou' patevr∆ wJ~ ajpevktona, ajsebeiva~ grafh;n kataskeuavsa~ eij~ ajgw'na katevsthsen. ejn de; touvtw/ to; pevmpton mevro~ tw'n yhvfwn ouj metalabw;n w\fle ciliva~, ejgw; d∆, w{sper h\n divkaion, mavlista me;n dia; tou;~ qeouv~, e[peita de; kai; dia; tou;~ dikavzonta~ uJmw'n ejswvqhn, to;n d∆ eij~ toiau'ta katasthvsanta m∆ ajdivkw~ ajdiavllakton ejcqro;n hJgouvmhn. For, after bringing against me an accusation that a person in his right mind would hesitate to voice – namely, that I had killed my own father – [Androtion] trumped up a graphê asebeias and brought me to trial. At trial he failed to receive one-fifth of the votes and was fined 1,000 61 On the dates of these speeches see Wayte (1882) xxi, xli (Androtion 355; Timocrates early 352); Ober (1989) 344 (357–354; summer 353); Blass (1887–98) 3.1.258, 280 (355; 353/2); Weil (1886) 11, 56–57 (355; 353/2); Schäfer (1858–87) 1.365–66; 4.329 (fall 355; 352). I think it best, as do Blass and Weil, to follow Dion. Hal. Ep. ad Amm. 1.4, which gives specific Athenian archon years and corresponding Olympic dates for both speeches: Ol. 106.2 = archonship of Callistratus (355/4) for Dem. 22; Ol. 106.4 = archonship of Thudemus (MS Eudemus) (353/2) for Dem. 24. 62 For the political and literary career of Androtion see Jacoby (1949); Pearson (1942) 76–86.

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These two accounts agree in outline: Androtion alleged that Diodorus had killed his own father and accordingly brought a graphê asebeias (public action for impiety), but at trial Androtion was soundly defeated and accordingly incurred a fine of 1,000 drachmas, the statutory penalty for garnering less than twenty percent of the jury’s votes in a graphê. The principal difference between the accounts lies in the identity of the defendant in Androtion’s graphê asebeias: in Demosthenes 22 it is Diodorus’ uncle (presumably FaBr), whose impiety consists in “associating in the same place” with his brother’s killer, while in Demosthenes 24 it appears to be Diodorus himself, the alleged killer. The earlier version, with Diodorus’ uncle as the defendant, is more likely to be accurate: since Demosthenes 22 is closer to the alleged event and some of the jurors at Androtion’s trial may have remembered the accusation of parricide, Diodorus had to stick more closely to the facts. By the trial of Timocrates, though, Diodorus must have felt that he could safely elide his uncle’s role in the affair; as we see in both versions, Diodorus so emphasizes the personal enmity between himself and Androtion that, even when he acknowledges his uncle’s involvement, he can say – apparently without embarrassment – that the person who would have suffered most from his uncle’s conviction would have been not his uncle but himself. In both versions, moreover, Diodorus states that he himself – not his uncle – won an acquittal. The probable solution to this conundrum, which results from Diodorus’ own patent attempt at obfuscation, is that Androtion prosecuted Diodorus’ uncle for impiety but Diodorus gave the main defense speech at trial: hence Diodorus can assert truthfully that he himself pled the case (ajgwnizovmeno~, 22.3) and – with only slight misrepresentation – that he himself was acquitted (ajpelusavmhn, 22.3; ejswvqhn, 24.7).63 However, unless the prosecution of Diodorus’ uncle was such a cause célèbre that the jury in the Timocrates case could supply the missing defendant from memory, the fact that Diodorus could completely suppress his uncle’s role when retelling the story in Demosthenes 24 and plausibly represent himself as the defendant in Androtion’s graphê asebeias indicates that an impiety charge could be brought not only against a parricide’s relative but against the parricide himself. The graphê asebeias would then constitute a remedy for intrafamilial homicide available to individuals who were unrelated to the victim and thus disqualified from prosecuting the killing by dikê phonou. Demosthenes 24 shows that a graphê asebeias might lie against a man who killed his father, the impiety being the parricide itself; Demosthenes 22 shows that the same action might be employed against kin who associated with the parricide after the fact, perhaps as compulsion to prosecute the killing.64 63 Weil (1886) 18–19. 64 MacDowell (1963) 9–10; contra Todd (1993) 273; Tulin (1996) 105 n. 261. MacDowell (ibid. 10–11) holds that it was impractical to attempt to force the relatives of a homicide victim to prosecute the killer because there was no prothesmia (statute of limitations) for homicide. Against this view, however, two observations can be made. (1) Lys. 13.83 (below, p. 185) states

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On the grounds articulated above, though, probability suggests that Androtion brought his graphê asebeias against Diodorus’ uncle, not against Diodorus himself. Several features in the account of the trial of Diodorus’ uncle given in the earlier version (Demosthenes 22), sometimes corroborated by the abridged and altered later version (Demosthenes 24), elucidate the basis of the charge against Diodorus’ uncle, as well as the reaction of the jury that acquitted him so decisively. According to Demosthenes 22, Androtion charged Diodorus’ uncle with impiety on the grounds that he “had associated in the same place” with Diodorus, who had been accused of parricide.65 The phrase “in the same place” is significant, as it indicates that the charged impiety consisted of the uncle’s being homôrophios with Diodorus, his brother’s killer. As we have seen (above, p. 63), the Classical Athenian doctrine of pollution held that unpurified killers communicated miasma to those around them, and it was therefore extremely risky to be “under the same roof” as a killer. Willingly to share a roof with the killer of a kinsman – in this case a brother – would not only invite danger, according to the received dogma regarding the transmission of miasma, but would also constitute a blatant affront to the victim. But when Androtion brought Diodorus’ uncle to trial, he suffered an emphatic rebuff, with less than one-fifth of the jury voting for conviction. MacDowell concludes from the jury’s vote that they disbelieved Androtion’s underlying claim that Diodorus had killed his father, and therefore leaves open the question of whether a graphê asebeias could properly be brought against a person who associated with a parricide.66 An alternative explanation, though, is that the jury agreed with the Araphenian neighbors of Thudippus and Euthycrates in Isaeus 9 (and disagreed with Plato’s Euthyphro) in the conviction that a homicide committed within a family was the business of that family, and that outsiders (such as Androtion) should not intrude in affairs that did not properly concern them. Hence Diodorus categorizes Androtion’s charge as one that a normal person “would hesitate to voice” (22.2; 24.7) not only due to the enormity of the accusation, but also because Androtion did not belong to the family concerned and therefore lacked the right to seek vengeance for Diodorus’ father. Although, as the evidence of Demosthenes 22 and 24 shows, the theoretical applicability of the graphê asebeias expanded the groups eligible both to seek and to receive punishment in connection with a homicide, prevailing Classical Athenian sentiment nonetheless resisted attempts at redress by individuals unrelated to the victim of a killing,67 thereby demonstrating continued allegiance to the principles enshrined in Draco’s law. a litigant’s opinion, not a fact: “for I do not think there is any statute of limitations for offenses like this” (ouj ga;r oi\mai oujdemivan tw'n toiouvtwn ajdikhmavtwn proqesmivan ei\nai: emphasis mine). If there really were no prothesmia for homicide, the speaker would not have to hedge but could cite the relevant statutory language. (2) Ant. 1.30, where the speaker states that he was a boy (paidi; o[nti) when his father died, is more persuasive than Lys. 13.83 but still not dispositive: the speaker is still a young man at the time of trial, possibly having just obtained the age of majority, and “the normal limit on the age of a pai'~ was about fourteen” (Gagarin [1997] 121; cf. Gagarin in Gagarin-MacDowell [1998] 9). 65 Cf. Bolkestein (1936) 113. 66 MacDowell (1978) 197–98. 67 Cf. Panagiotou (1974) 426–27; Tulin (1996) 103–4.

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We may note as a final observation that the prosecutions of Androtion and Timocrates provide good illustrations both of the perceived relationship between private vengeance and the public interest and of the transitivity of Athenian echthra (above, pp. 15–29). In the Timocrates case, Diodorus tells the jury that Androtion’s graphê asebeias against his uncle initiated the enmity between himself and Androtion: “As for the man who unjustly put me in such a position, I considered him an irreconcilable enemy (ajdiavllakton ejcqrovn)” (24.8). Two years earlier, in the prosecution of Androtion, Diodorus had dropped a similar hint (“With your help, I will endeavor to defend myself against [Androtion], both now and for the rest of my life,” 22.3). Diodorus thus advances the preexisting state of enmity between himself and Androtion, which Androtion initiated by filing his graphê asebeias, as justification for his participation in the graphai paranomôn against both Androtion and Timocrates. Yet this enmity is not the sole motive asserted by Diodorus. Demosthenes 22 begins with a declaration that, just as the prior prosecutor Euctemon has endeavored simultaneously to achieve two goals – to assist the city and to obtain personal vengeance (divkhn uJpe;r auJtou' labei'n) – so Diodorus will attempt the same (22.1).68 As is apparent here, and even more so in Lysias 12 and 13 (see chapters 6 and 7), the Athenians did not hold personal vengeance and the public interest to be necessarily opposed or even incompatible; on the contrary, prosecutors commonly strove to convince their juries that convicting the defendant served both purposes (above, p. 20). Having thus stated his reasons for prosecuting Androtion, Diodorus next explains how he and Androtion became enemies, so as to establish a justification for his hostility: after opining that he has suffered even more terribly at Androtion’s hands than Euctemon has, Diodorus launches immediately into his account of the graphê asebeias brought by Androtion against his uncle, in the evident presumption that Androtion’s interference in his family’s affairs will arouse the jurors’ sympathy for him and their prejudice against Androtion. Two years later, in his lawsuit against Timocrates, Diodorus again posits the coincident goals of personal revenge and the public welfare as motives for his participation in the previous lawsuit against Androtion, informing his jury that he had joined Euctemon in prosecuting Androtion “in the belief I had obtained a fitting opportunity to help the city and, at the same time, to exact punishment for what I had suffered” (hJgouvmeno~ aJrmovttont∆ eijlhfevnai kairo;n tou' bohqh'saiv q∆ a{ma th'/ povlei kai; timwrivan uJpe;r w|n ejpepovnqein labei'n, 24.8). For Diodorus, and for his Athenian jury, the established state of enmity between Diodorus and Androtion justifies Diodorus’ present lawsuit against Timocrates because of the transitive nature of echthra. Timocrates’ proposed law, which Diodorus attacks as contravening a number of existing Athenian laws, allowed men who incurred debts to the state to postpone their imprisonment until the ninth prytany of the year, on condition that sureties be provided for the debt and approved by the Assembly (24.39–40). Among its immediate and intended beneficiaries was Androtion, who, together with two other men, had recently become a state debtor by improperly appropriating spoils of war (24.11–14, 125–26, 137, 158–86). Timocrates’ attempt to protect Androtion 68 Cf. Usher (1999) 199.

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marks the two men as philoi; therefore, Diodorus’ graphe paranomôn against Timocrates represents an acceptable extension of his preexisting enmity with Androtion, pursued in accordance with the principle that the friend of an enemy is an enemy.

CHAPTER 4 [DEMOSTHENES] 47 AND THE LIMITS OF VENGEANCE Plato’s Euthyphro, Isaeus 9, and Demosthenes 22 and 24 illustrate the difficulties inherent in the prosecution of a homicide within the kindred, when either the killer and would-be prosecutor or the killer and victim were related. As we shall observe in this chapter, similar complications attended the prosecution of a homicide when the victim lacked kin within the degree of descendant first cousin once removed, whom Draco had empowered to prosecute by dikê phonou. These complications remained even after the Athenians expanded the applicability of the procedure of apagôgê (summary arrest), which any willing Athenian citizen could initiate, to include individuals suspected of committing a homicide. We begin with an analysis of [Demosthenes] 47, Against Euergus and Mnesibulus, which contains a remarkably detailed narrative of the conflict between the unnamed speaker (designated “the trierarch” for convenience) and his antagonist Theophemus. The pattern of move and counter-move evident in the trierarch’s description of his conflict with Theophemus displays the properties of reciprocity and escalation that characterize Athenian enmity (above, pp. 24–25). In contrast to most Athenian conflict narratives, however, the hostilities between the trierarch and Theophemus eventually result in a homicide; namely, the killing of an elderly freedwoman who had belonged to the trierarch’s father. This killing activates a complex and contradictory set of duties and obligations that highlight the essentially familial nature of Athenian homicide law and custom observed in chapter 3. In this case, though, the would-be avenger, the trierarch, lies outside the kin group entitled to seek vengeance under Draco’s law. In [Demosthenes] 47, accordingly, the trierarch portrays himself as a willing and justified avenger who founders, to his frustration, on the rock of legal standing. His speech thus provides a valuable and informative complement to the cases examined in the previous chapter, in particular Plato’s Euthyphro, whose eponym has the will to avenge but arguably lacks both justification and standing, and Isaeus 9, in which the kin of both the victim Euthycrates and his killer Thudippus are justified and qualified, but unwilling, to avenge Euthycrates’ death. The trierarch’s regretful account of his inability to avenge the freedwoman killed by his enemies raises the issue of the history and application of apagôgê in the context of homicide. Since the legislation of Draco, the apagôgê procedure had entitled any Athenian summarily to arrest a person already accused or convicted of homicide who violated the legal constraints on his movement. In the latter part of the fifth century, however, the scope of apagôgê was extended to include individuals who were merely suspected of homicide, and thus apagôgê (and the allied procedures endeixis and ephêgêsis) became an alternative to the dikê phonou for the prosecution of killers. Yet, in relating to his jury his options for vengeance on the

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freedwoman’s killers, the trierarch neglects to mention apagôgê, which, as an Athenian citizen, he could have employed despite his lack of kinship to the victim. A survey of the attested instances of apagôgê for homicide in the Classical period will provide the evidence for a concluding theory that explains how the trierarch could commit this omission without compromising his credibility.

VENGEANCE BEYOND THE KINDRED? [DEMOSTHENES] 47 [Demosthenes] 47, Against Euergus and Mnesibulus for False Witness, was probably authored by Apollodorus1 and was delivered ca. 3532 in a private action for false witness (dikê pseudomartyriôn). The trierarch accuses Euergus and Mnesibulus of lying in a joint deposition given in a private action for battery (dikê aikeias) that had resulted in the trierarch’s conviction by Theophemus of the deme Euonymon in or shortly after 357/6.

The dispute between the trierarch and Theophemus The lawsuit for false witness initiated by the trierarch, in which he delivered [Demosthenes] 47, represents the most recent round of hostilities in an ongoing and bitter dispute waged against the family of Theophemus. The conflict began between the trierarch and Theophemus in the archonship of Agathocles (357/6: § 44), when the outbreak of the Social War necessitated the expeditious return to the state of trireme equipment (such as sailcloth, tow, and rope) by the previous year’s trierarchs (§ 20). A rash of legislation, including a law passed by Periander (PA 11800) in 358/7 “by which the symmories had been organized,” a decree moved by one Chaeredemus (PA 15112) “that the ships’ equipment be recovered and kept safe for the city,” and another decree ordering each debtor to pay his assigned collector his fraction of his symmory’s debt, authorized the current trierarchs and overseers of symmories to repossess the outstanding equipment or collect its cash equivalent from their predecessors in office. It fell to the speaker of [Demosthenes] 47, who was serving as trierarch and overseer of his symmory, to collect from two trierarchs of the previous year who remained in default; namely, Demochares of Paeania (PA = APF 3718)3 and Theophemus of Euonymon (PA = APF 7094).4 1

2 3

4

On the authorship of [Demosthenes] 47 see Schäfer (1858–87) 4.193–99 (Apollodorus); Blass (1887–98) 3.1.546ff., 589 (Apollodorus’ unknown logographer); Trevett (1992) 71–74 (inclines toward Apollodorus); Tulin (1996) 21 (possibly Apollodorus). Schäfer (1858–87) 4.193–94; Blass (1887–98) 3.1.544–45; Usher (1999) 263. Demochares of Paeania was related to the orator Demosthenes, also of Paeania (see Davies [1971] 113–39, 143–44). The unflattering portrayal of Demochares in [Demosthenes] 47 weighs decisively against attribution of the speech to Demosthenes, but his presence in the speech may explain its inclusion in the Demosthenic corpus. IG II2 1612.313–16 (356/5) reads: Dhmocavrhn Paian[ia'], Qeovfhmon Eujwnumeva, [a}] ejpi; th;n Eujfua' w[feil[on, uJ]pozwvmata, iJstivon, ajgkuvra[~]. “Demochares of Paeania and Theophemus of Euonymon [returned] the following which they owed on the Euphues: hull-braces, sail, an-

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In accordance with the aforementioned legislation, the trierarch approached Theophemus and requested that he return the equipment he owed; Theophemus refused. He encountered Theophemus again “at the herm by the Little Gate”5 and issued him a summons, in the presence of witnesses, to appear before the Fleet Commissioners (ajpostolei'~) and the Curators of the Dockyards (ejpimelhtai; tw'n newrivwn), who introduced lawsuits concerning outstanding naval equipment. The trierarch won the resulting lawsuit, but Theophemus still refused to return the equipment; the trierarch accordingly reported Theophemus’ continued intransigence to the authorities. Having received similar reports from other trierarchs, the boulê issued a decree authorizing the trierarchs to collect the assigned equipment by any means necessary (trovpw/ w|/ a]n dunwvmeqa: §§ 26–33). Armed with this decree, the trierarch, having failed to locate Theophemus, approached Theophemus’ brother Euergus (PA = APF 5458) and directed him to instruct Theophemus to return the outstanding equipment; Euergus dismissed him with mockery. A few days later, the trierarch again accosted Euergus, this time with witnesses in tow, and asked whether Euergus and Theophemus held their property jointly or separately (povtera nenemhmevno~ ei[h pro;~ to;n a;delfo;n h] koinh; hJ oujsiva ei[h aujtoi'~; cf. Isae. 9.17 [above, p. 90], where the brothers Thudippus and Euthycrates get into a brawl ejn th' nemhvsei tou' cwrivou). The answer to this question had important ramifications: if Euergus and Theophemus held their property jointly, the trierarch could recover the debt from Euergus without troubling to find Theophemus. Euergus, however, replied that he and his brother lived apart (§§ 34–35). The trierarch was therefore obliged to seek out Theophemus yet again. He went to Theophemus’ house, accompanied by a slave assistant provided by the boulê. Since Theophemus was not at home, the trierarch dispatched one of Theophemus’ slaves to fetch him. When they returned, the trierarch showed Theophemus a copy of the most recent decree of the boulê, as well as an inventory of the trireme equipment he owed, and demanded the return of the equipment, as the fleet was about to sail. Theophemus again refused to pay and issued threats; at this point the trierarch, sensing the imminent escalation of the dispute, directed his assistant to collect witnesses from among the passersby. He then ordered Theophemus either to appear before the Fleet Commissioners and the boulê, if he still maintained that he owed nothing, or else to pay up or face immediate seizure of pledges for his debt. When Theophemus refused to comply, the trierarch attempted to seize the slave woman who had brought Theophemus home at his instigation. Theophemus prevented her seizure, and so the trierarch entered Theophemus’ house with the intent of distrain-

5

chors.” (The imperfect w[feil[on] indicates that the equipment is no longer owing.) The trierarch reports that Demochares initially displayed some recalcitrance but (unlike Theophemus) paid up after conviction in court ([Dem.] 47.28); thus the items listed on the inscription probably represent Demochares’ share of the debt (to; kaq∆ eJauto;n mevro~ tw'n skeuw'n, ibid.). However, see contra Davies (1971) 225–26. On hull-braces (hypozômata) see Casson (1971) 91– 92. The herm and the Little Gate were located by the City Gate at the northern boundary of the Peiraeus, approximately 150 m west of the juncture of the northern Long Wall and the Peiraeus wall (Judeich [1931] 152–53; cf. Travlos [1971] 159).

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ing upon other property (§ 38). As he crossed the threshold, Theophemus punched him in the mouth;6 the trierarch called upon his witnesses and defended himself, but in the end had to leave with no trireme equipment, no pledges, and (to add injury to insult) bruises from Theophemus’ fists. Following the altercation at Theophemus’ house, the trierarch came before the boulê, told the councillors what had happened, and displayed his injuries. On the recommendation of the Council, the trierarch lodged an eisangelia against Theophemus.7 Two days later, the boulê heard the eisangelia and returned a conviction. While the councillors were voting whether to refer the case to a jury-court (dikastêrion) or to impose upon Theophemus a fine of 500 drachmas, the statutory maximum issuable by the boulê on its own authority, the trierarch and Theophemus reached a settlement at the latter’s instigation: in order to avoid going to court, Theophemus would pay an additional fine (prostimhqh'nai) of 25 drachmas (presumably on top of the 500 drachmas mulcted by the boulê) and would agree to submit the case to voluntary binding arbitration, with the arbitrator to be chosen by the trierarch (§§ 41–44). While the trierarch presents himself as having consented to arbitration out of the goodness of his heart, we may presume that, in reality, he simply wanted to dispose of the matter before sailing with the fleet. In either case, if he thought his problems with Theophemus were over, he was wrong: when he returned to Athens, Theophemus proved unwilling to entrust the case to a private arbitrator as he had promised, and so the trierarch filed a dikê aikeias against him. Theophemus retaliated by filing his own dikê aikeias against the trierarch; thus the scuffle at Theophemus’ house resulted in cross-claims for battery, with each litigant accusing the other of starting the fight.8 In the fourth century, the dikê aikeias, like most Athenian lawsuits, was subject to compulsory public arbitration.9 Public arbitrators were appointed from Athenian citizen men in their sixtieth year ([Arist.] Ath. Pol. 53.2–6);10 they reviewed the evidence for their assigned cases and on that basis issued a verdict in favor of one of the parties. Appeal to a jury-court seems to have been granted automatically to the losing party ([Dem.] 40.31); thus, in effect, public arbitration was non-binding.11 Moreover, trial juries were free to disregard an arbitrator’s verdict: although the litigant who won at arbitration might present the result as a presumptive indica-

6 Pace MacDowell (1990) 290 (ad Dem. 21.72), Athenian litigants distinguish carefully between blows to the head delivered with a closed fist (puvx “with the fist”; konduvloi~ “with the knuckles”) and with an open hand (ejpi; kovrrh~, “on the jaw”: LSJ9 s. v. kovrsh I. 2). 7 On eisangelia see Hansen (1975), (1980); Rhodes (1979). 8 Athenian law defined aikeia (battery) as “starting a fight unjustly” (a[rcein ceirw'n ajdivkwn): Dem. 23.50; [Dem.] 47.7, 15, 35, 39, 40, 47; Isoc. 20.1. 9 This type of arbitration must be distinguished from voluntary private arbitration, which was available in almost all lawsuits, and binding, if both parties consented (Dem. 21.94 [lex]; Harrison [1968–71] 2.65). The trierarch and Theophemus had agreed in principle to private arbitration of their dispute, but Theophemus’ failure to consent to the trierarch’s choice of arbitrator had effectively voided the agreement. 10 Rhodes (1993) 589–96; Harrison (1968–71) 2.64–68, 72–74. 11 Cohen (1973) 150 n. 116; Harrell (1936) 35; see, however, Rhodes (1993) 589.

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tor of his guilt or innocence, the jury might either second or countermand the decision of the arbitrator. When identical cross-claims were filed, such as the reciprocal actions for battery initiated by the trierarch and Theophemus, the magistrates charged with superintending the relevant court, in this case the Forty,12 had to determine which lawsuit would come to trial first; the advantage naturally lay with the first prosecutor, since if he obtained a conviction, he effectively precluded his opponent from bringing his intended counter-suit. That is, if Theophemus convicted the trierarch of battery by successfully demonstrating that the trierarch had struck the first blow, there would be little point in the trierarch’s subsequently bringing Theophemus to court and alleging that Theophemus had started the fight. Theophemus accordingly engineered a successful postponement of the trierarch’s lawsuit,13 so that his own dikê aikeias came to court first. Thus outmaneuvered, the trierarch went to court as defendant, “trusting in myself,” as he says, “that I had done no wrong.” At trial, however, Theophemus convicted the trierarch of battery; according to the trierarch, Theophemus won the lawsuit on the strength of a false deposition submitted by his brother Euergus and Mnesibulus (PA = APF 10265), a connection by marriage (kêdestês: probably a brother-in-law [either WiBr or SiHu], but possibly his father-in-law: §§ 45– 46).14 According to this deposition, Theophemus had offered for torture a slave who had purportedly witnessed the start of the fight, but the trierarch had rejected the offer. As a result of his conviction in the dikê aikeias, the trierarch was fined 1,100 drachmas; with the addition of an epôbelia of 183 drachmas 2 obols and court fees (prytaneia) of 30 drachmas, the trierarch owed Theophemus a total of 1,313 drachmas 2 obols (§ 64). The trierarch had difficulty paying Theophemus and asserts that Theophemus granted him an extension (§§ 49–51, 78). Nonetheless, Theophemus held the trierarch in default, and so brought Euergus and Mnesibulus with him to the trierarch’s farm in order to seize pledges for the debt, while the trierarch himself was away in the Peiraeus (§ 62). First they raided the fields, rustling fifty sheep, kidnapping the shepherd and another slave, and seizing a valuable bronze hydria and “everything that went with the flock.” They then attempted to kidnap additional slaves but failed. Finally Euergus and Mnesibulus broke into the trierarch’s farmhouse and seized all its furnishings, ignoring the objections of the trierarch’s wife that the amount of the debt had been deposited at a bank (§§ 52–53, 57).15

12 At this time dikai aikeias came before the Forty (Dem. 37.33); by the date of composition of the Ath. Pol. jurisdiction had been transferred to the Introducers (Eisagôgeis: [Arist.] Ath. Pol. 52.2). See Harrison (1968–71) 2.21; Hansen (1991) 190; Rhodes (1993) 584. 13 On the meaning of paregravfeto kai; uJpwvmnuto (§ 45) see Harrison (1968–71) 2.101 n. 3, 108 n. 1. 14 Davies (1971) 226 posits that Mnesibulus was Theophemus’ father-in-law; Tulin (1996) 21 with n. 46 identifies Mnesibulus as Theophemus’ brother-in-law, citing Humphreys (1986) 77 n. 29. 15 On the issue of self-help in [Demosthenes] 47, and particularly the contrast drawn by the trierarch between his and his adversaries’ use of self-help, see Hunter (1994) 123–24; Christ (1998a) 536–41.

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During this argument, a freed former wet-nurse of the household tried to conceal in her garment the cup from which she was drinking, but the intruders saw her, and a fracas ensued: ...katidovnte~ aujth;n ou{tw dievqesan ajfairouvmenoi to; kumbivon Qeovfhmo~ kai; Eu[ergo~ aJdelfo;~ aujtou' ouJtosiv, w{ste u{faimoi me;n oiJ bracivone~ kai; oiJ karpoi; tw'n ceirw'n aujth'~ ejgevnonto ajpostrefomevnh~ tw; cei're kai; eJlkomevnh~ uJpo; touvtwn ajfairoumevnwn to; kumbivon, ajmuca;~ d∆ ejn tw'/ trachvlw/ ei\cen ajgcomevnh, pelio;n de; to; sth'qo~. eij~ tou'to d∆ h\lqon ponhriva~ w{ste, e{w~ ajfeivlonto to; kumbivon ejk tou' kovlpou aujth'~, oujk ejpauvsanto a[gconte~ kai; tuvptonte~ th;n grau'n. Having spotted her, Theophemus and his brother Euergus here treated her in such a way as they were taking away the cup that her arms and wrists became suffused with blood as they twisted and pulled her hands in taking away the cup, and she had scratches on her neck from being choked, and her chest was black and blue. And they reached such depths of villainy that they did not stop choking and beating the old woman until they seized the cup from her bosom. (§§ 58–59)

After the assault, Theophemus, Euergus, and Mnesibulus left the trierarch’s farm. The next day, after returning from the Peiraeus, the trierarch summoned Theophemus to see to the medical care of the freedwoman (§ 62); when Theophemus refused, the trierarch brought in his own physician, who examined the woman and concluded that he could not provide any useful treatment. Upon receiving this report, the trierarch summoned witnesses to observe the freedwoman’s condition and issued a second summons to Theophemus and his associates to provide her with medical care. Five days after the beating, the freedwoman succumbed to her wounds (§ 67). The trierarch then consulted the Exêgêtai as to what he should do about the freedwoman’s death. The Exêgêtai counseled him against filing a lawsuit for homicide; after consulting his friends and Draco’s homicide law, the trierarch decided to follow the Interpreters’ advice.

The Exêgêtai and the non-prosecution of Theophemus and Euergus The trierarch relates his consultation of the Exêgêtai in §§ 68–73.16 These were sacral officials charged with expounding the Athenian sacred law; their unofficial expertise in the law of homicide stemmed from the religious character of the offense.17 At his meeting with the Interpreters, the trierarch tells them the whole story (a{panta ta; genovmena) of the assault on his farm and the attack on the freedwoman, culminating with the reason for her death: “she died on account of the cup, because she would not let it go.” The Interpreters then ask the trierarch whether he desires merely an exposition of the law or their advice as well; he requests both. The Interpreters respond as follows:

16 On this part of [Demosthenes] 47 see especially Tulin (1996) ch. 2; Evjen (1971); Grace (1975); Gagarin (1979). 17 See von Fritz (1940) 98: “...the law with which [the Exêgêtai] dealt officially was not the secular law, even that part of the secular law – that is the law made by the legislature – which regulates religious matters.” On the religious aspects of homicide see above, pp. 62–63.

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Part I: Homicide and Vengeance from Draco to Demosthenes ‘hJmei'~ toivnun soi ta; me;n novmima ejxhghsovmeqa, ta; de; suvmfora parainevsomen: prw'ton me;n ejpenegkei'n dovru ejpi; th'/ ejkfora',/ kai; proagoreuvein ejpi; tw'/ mnhvmati, ei[ ti~ proshvkwn ejsti;n th'~ ajnqrwvpou, e[peita to; mnh'ma fulavttein ejpi; trei'~ hJmevra~. tavde de; sumbouleuvomevn soi, ejpeidh; aujto;~ me;n ouj paregevnou, hJ de; gunh; kai; ta; paidiva, a[lloi dev soi mavrture~ oujk eijsivn, ojnomasti; me;n mhdeni; proagoreuvein, toi'~ dedrakovsi de; kai; kteivnasin, ei\ta pro;~ to;n basileva mh; lagcavnein. oujde; ga;r ejn tw'/ novmw/ e[sti soi: ouj gavr ejstin ejn gevnei soi hJ a[nqrwpo~, oujde; qeravpaina, ejx w|n su; levgei~: oiJ de; novmoi touvtwn keleuvousin th;n divwxin ei\nai: w{st∆ eij diomei' ejpi; Palladivw/ aujto;~ kai; hJ gunh; kai; ta; paidiva kai; kataravsesqe auJtoi'~ kai; th'/ oijkiva,/ ceivrwn te dovxei~ polloi'~ ei\nai, kai; ejan; me;n ajpofuvgh/ se, ejpiwrkhkevnai, ejan; de; e{lh/~, fqonhvsei. ajll∆ uJpe;r seautou' kai; th'~ oijkiva~ ajfosiwsavmeno~ wJ~ rJas /' ta th;n sumfora;n fevrein, a[llh/ de; ei[ ph/ bouvlei, timwrou'.’ “Then we shall explain to you what is required by law and recommend to you what is in your interest. First, carry a spear at the funeral procession, and issue a proclamation at the tomb to see if the woman has a relative.18 Then stand guard over the tomb for three days. Now, this is what we advise you. Since you were not present yourself, but only your wife and children, and you have no other witnesses, do not issue the proclamation to anyone by name, but to ‘the perpetrators and killers.’ Then, do not file suit with the basileus, for under the law you are not allowed to do so: the woman is not a member of your family, nor is she your slave, from what you tell us, and the laws ordain that the prosecution belong to these. So, if you take the diômosia at the Palladion, you and your wife and children, and if you call down destruction upon yourselves and your house, your reputation will suffer among many; and if he escapes you, you will be deemed to have perjured yourself, while if you convict him, you will be resented. Instead, you should expiate yourself and your house and bear this disaster as lightly as you can; and if you wish to get revenge some other way, do so.” (§§ 69–70)

As commentators have noted, the Interpreters explicitly divide their reply to the trierarch into two sections: first authoritative exposition of the trierarch’s religious duties, then unofficial advice regarding his legal options.19 The first category comprises the carrying of the spear, the proclamation to the victim’s relatives, and the guarding of the tomb (above, pp. 69–71); everything that follows falls into the second category. Since the jurisdiction of the Exêgêtai covers the sacred rather than the secular law, they carefully distinguish the first part of their remarks, exposition of the trierarch’s religious obligations (ta; me;n novmima ejxhghsovmeqa), from the second part, recommendations (parainevsomen) or advice (tavde de; sumbouleuvomevn soi) concerning the law of homicide. Of particular interest at this juncture are the grounds offered by the Interpreters in advising the trierarch not to prosecute the freedwoman’s killing. The Interpreters give the trierarch two main reasons to forgo prosecution. The first reflects a practical concern: the trierarch did not witness the killing himself but learned of it by hearsay from his wife and children, and he has no other witnesses. The implication of this observation by the Interpreters is that the trierarch can 18 Von Fritz (1940) 97 translates “perform the proagoreusis at the tomb, if there is a relative of the woman (to do it).” However, the syntax indicates that here, as in the rest of the passage, the trierarch is the implied subject of the jussive infinitive proagoreuvein (cf. Gagarin [1979] 309 n. 27); for the quasi-final construction ei[ ti~...ajnqrwvpou see Smyth (1956) § 2354; Cooper (1998) § 65.1.10. For the proclamations issued by the relatives of the victim at the tomb and by the basileus see above, pp. 72–74. 19 E. g., MacDowell (1963) 15–16; Oliver (1950) 29 with references; Gagarin (1979) 308–9.

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present no adult male citizen eyewitness to support his accusation, a deficiency that would arouse negative prejudice in an Athenian jury.20 The Interpreters’ suspicion of the trierarch’s potential witness list is confirmed by the trierarch’s account of the raid on his farm, in which it is not always clear which members of Theophemus’ entourage are doing what. In § 53 Euergus and Mnesibulus break into the farmhouse – a point upon which the trierarch dilates, claiming that even if he had been in default to Theophemus, Euergus and Mnesibulus had no right to enter his home, seize his property, and disturb his wife and children.21 In § 58, however, the trierarch names Euergus and Theophemus as the freedwoman’s attackers. At this point, perhaps, the jurors are to assume that Mnesibulus is busy moving furniture out of the farmhouse; generally speaking, it does not take more than two adult men to subdue an elderly woman. But then, in § 60, one Hagnophilus watches from the property of the trierarch’s neighbor Anthemion as Euergus and Theophemus exit the farmhouse and the furniture is removed. While this sequence of events may have occurred just as the trierarch describes it, and there may be nothing mysterious about the disappearance of Mnesibulus from the narrative, an Athenian jury would be more likely to believe the trierarch’s story had he been there in person. The Exêgêtai construe the trierarch’s failure to witness the freedwoman’s death as a major impediment to his bringing charges for her killing; the trierarch’s absence at the time of the assault and the way he reports her death and the surrounding events suggest that the identity of the killer(s) may not be as secure as he asserts. The Interpreters therefore advise the trierarch not to name the accused killers in his proclamation. Although the trierarch does not say so, the same consideration presumably also factored into the Interpreters’ advice that he not take the diômosia, in which he would have to swear on the heads of his family that the defendants were guilty of the charged killing (above, p. 61), thereby risking divine retribution on the basis of hearsay reports. The second argument advanced by the Interpreters against the trierarch’s bringing a homicide lawsuit on behalf of the freedwoman is that he lacks the necessary legal standing to prosecute her killers, since she was neither his relative nor his slave: “do not file suit with the basileus, for under the law you are not allowed to do so: the woman is not a member of your family, nor is she your slave, from what you tell us, and the laws ordain that the prosecution belong to these” (oujde; ga;r ejn tw'/ 20 The capacity of women and children (and of slaves) to testify in Athenian homicide trials is an unsolved question. Whether one rejects the possibility (as, e. g., Todd [1993] 96) or concurs with MacDowell’s ([1963] 102–9) verdict of non liquet, an Athenian court would surely regard as weak a case in which the only eyewitness testimony to the alleged offense came from women and children. The comments of the Exêgêtai imply that freeborn women and children could swear the diômosia (eij diomei' ejpi; Palladivw/ aujto;~ kai; hJ gunh; kai; ta; paidiva kai; kataravsesqe auJtoi'~ kai; th/' oijkiva)/ but do not establish whether they could testify. Even if they could not, the trierarch could have administered an evidentiary oath to his wife (and possibly his children) before trial and introduced its contents at trial (cf. [Dem.] 40.10–11). 21 [Euergus and Mnesibulus] oi|~ oujdemivan divkhn wjflhvkein oujde; prosh'ken aujtoi'~ a{ptesqai tw'n ejmw'n oujdenov~... “to whom I had lost no lawsuit and who had no right to touch anything of mine...”. For the odium attached to such intrusions cf. Lys. 3.6; 12.8 (below, p. 172); Dem. 18.132; 22.50–52.

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novmw/ e[sti soi: ouj gavr ejstin ejn gevnei soi hJ a[nqrwpo~, oujde; qeravpaina, ejx w|n su; levgei~: oiJ de; novmoi touvtwn keleuvousin th;n divwxin ei\nai).22 The trierarch admits as much to the jury a little later in his speech, remarking that “the woman was not related to me at all, except inasmuch as she had been my nurse” (ejmoi; de; ou[te gevnei prosh'ken hJ a[nqrwpo~ oujdevn, eij mh; o{son tivtqh genomevnh, § 72). In fact, the trierarch evidently investigated the possibility of bringing the killers to justice exactly because the freedwoman had no kinsmen to seek vengeance for her: she had returned to the trierarch’s household upon the death of her husband because “she was old and there was no one to support her” (§ 55), and we may conclude from the trierarch’s silence that no long-lost relatives surfaced as a result of his proclamation at her funeral. At the end of the anecdote describing his meeting with the Exêgêtai, the trierarch has the court clerk read to the jury the law cited by the Interpreters that denied him the capacity to prosecute the freedwoman’s killing (§ 73). The documents recited by the clerk at this point must have included the section of Draco’s homicide law dealing with proclamation and prosecution, which began, “Relatives up to first cousin’s son and first cousin shall issue a proclamation to the killer in public; first cousins, sons of first cousins, fathers-in-law, sons-in-law, and phratry members shall assist in the prosecution” (Proeipei'n de; tw'/ kteivnanti ejn ajgora'/ ejnto;~ ajneyiovthto~ kai; ajneyiou', sundiwvkein de; kai; ajneyiou;~ kai; ajneyiw'n pai'da~ kai; gambrou;~ kai; penqerou;~ kai; fravtera~, [Dem.] 43.57 [lex] = IG I3 104.20–23: above, p. 55). This part of the homicide law clearly relates to the killing of an Athenian citizen, since slaves and metics did not belong to phratries. The freedwoman, however, was not a citizen but, like most freed Athenian slaves, a metic;23 hence the Interpreters envision a trial for her killing taking place at the Palladion court (§ 70), which held default jurisdiction over homicide cases involving non-citizen victims (above, p. 60). The clerk may also have read out other sections of the homicide law in addition to the provisions on proclamation and pardon: since the trierarch informs his jury that the Interpreters dissuaded him from prosecuting on the grounds that the freedwoman was neither his kinswoman nor his slave (oujde; qeravpaina), he will also have cited the clause of the homicide law dealing with the killing of slaves (and prosecution by their masters), if such a clause existed.24 Owing to his lack of kinship with or ownership of the victim, the Interpreters concluded that the trierarch lacked the legal capacity to prosecute the freedwoman’s killing: oujde; ga;r ejn tw'/ novmw/ e[sti soi. In this phrase MacDowell proposed a change of accent from non-enclitic e[sti to enclitic ejstiv, with the resulting meaning “under 22 On the capacity to prosecute a dikê phonou, defined in terms of relationship to the victim, see above, p. 59. 23 MacDowell (1963) 19; Gagarin (1979) 308. 24 In drafting laws, Athenian legislators commonly neglected to specify what they considered obvious (Harris [1994b] 139). For example, legitimate sons, who occupied first place in the order of intestate succession, are omitted in the relevant law of Solon ([Dem.] 43.51 [lex]); and, rather notoriously, the hubris statute (Dem. 21.47 [lex]) fails to define hubris. This phenomenon may also account for the absence of intentional homicide from the beginning of the reinscribed Draconian homicide law (above, p. 51 with nn. 73, 74).

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the law it is not your duty” (or, as MacDowell translates, “it is not legally your concern”) rather than “under the law you are not allowed to do so.”25 As justification for this emendation he noted that the Interpreters offer the trierarch additional disincentives to prosecute besides the letter of Draco’s law and cited his opinion that Draco’s assignment of homicide prosecutions to relatives of the victim within the degree of descendant first cousin once removed did not preclude individuals outside this category from bringing suit. Several factors, though, weigh significantly against MacDowell’s position. First, Draco gives a full and detailed list of qualified kinsmen of the victim: proclamation shall be made by relatives up to and including sons of first cousins, while “first cousins, sons of first cousins, fathers-in-law, sons-inlaw, and phratry members shall assist in the prosecution.” The most reasonable conclusion from Draco’s specificity is that people who fall outside the list may not prosecute.26 Moreover, regardless of what Draco meant by “assist in the prosecution” (sundiwvkein) when he drew up his law in 621/0, by the fourth century, as evidenced in [Demosthenes] 47, the Athenians interpreted Draco’s law as restricting prosecution in dikai phonou to kinsmen of the victim within the degree of descendant first cousin once removed: in the words of the trierarch, “the law ordains... that the relatives up to sons of first cousins shall prosecute” (keleuvei ga;r oJ novmo~... tou;~ proshvkonta~ ejpexievnai mevcri ajneyiadw'n, § 72). Furthermore, the Interpreters’ presentation of reasons for the trierarch not to prosecute in addition to Draco’s law does not imply that the law was not definitive on the issue. Not only has overdetermination of an argument always been a standard method of persuasion, but in light of the ample evidence provided by Attic oratory regarding the decision-making processes of litigants, the Interpreters had no reason to suppose that the letter of the law alone would (or even should) deter the trierarch from going to court. For example, the trierarch might easily have falsified the victim’s status and asserted that she was his slave, which would have rendered him eligible, as her master, to prosecute her killing; in the absence of official identification records for non-citizens, status was easy to fudge and difficult to prove.27 We should also note that the trierarch did not view the Interpreters’ advice on the homicide law as the last word on the subject: after visiting the Interpreters, he researched Draco’s law and consulted his friends, only then deciding, on the basis of their unanimous agreement, that he would decline to prosecute (§ 71). The Interpreters’ advice shows, in fact, that they are well aware of the possibility that the trierarch may decide to pursue his case in contravention of the law. Accordingly, they warn him that if he swears the diômosia, many will consider him the 25 MacDowell (1963) 19. 26 Cf. Evjen (1971) 259; Gagarin (1979) 312–13; Kidd (1990) 216. 27 A few examples of disputed personal status in the orators: (1) In Demosthenes 29 Aphobus claims that Milyas is a slave, while Demosthenes asserts that he is free. (2) The speaker of Lysias 23 alleges that the defendant Pancleon is not a Plataean, as he claims to be. (3) Demosthenes 57 is an appeal to a jury-court by Euxitheus, who claims that he has been struck from the rolls of his deme due to a false accusation of non-citizen origins. (4) In [Demosthenes] 59 Neaera pretends to be a citizen in order to charge higher fees for her services (§ 41); her daughter Phano (§ 72) likewise usurps citizen status and marries the basileus-elect Theogenes.

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worse for it, and if he wins the case, he will be resented. In other words, he will lose face and popularity – but not necessarily the lawsuit28 – if he prosecutes the freedwoman’s killers. The trierarch states at § 72 that “it is defined in the oath [i. e., the diômosia] what a relative is” (ejn tw'/ o{rkw/ diorivzetai o{ ti proshvkwn ejstivn). One purpose of the diômosia administered in a dikê phonou, already noted, was to ensure that the prosecutor was bringing a just charge; otherwise he risked calling down the wrath of Heaven upon himself and his house (§ 70: above, p. 117). Another purpose, as we see here, was to determine that the prosecutor was properly related to the victim and therefore eligible to bring the lawsuit.29 Therefore, if the trierarch were to bring the freedwoman’s killer to court and swear the diômosia, the illegality of his lawsuit would be patent at its outset – at least to the trierarch himself, and presumably to those who knew him and who would consequently hold the lie against him. The conclusion to be drawn from the account of the freedwoman’s death and its aftermath in [Demosthenes] 47 is, therefore, that in Classical Athens the business of avenging a killing through the courts belonged properly to the victim’s kin; when the victim had no kin, as in the case of the unfortunate freedwoman, he or she simply fell through the cracks of the Athenian legal system – at least with respect to a dikê phonou.30 The trierarch thus found himself in circumstances comparable to those facing the Araphenian neighbors in Isaeus 9 and Androtion in Demosthenes 22 and 24: an Athenian who wished to seek redress for the killing of a non-relative, whether directly (via dikê phonou) or indirectly (as in Androtion’s graphê asebeias), ran up against legal rules and societal norms echoing the maxim attributed to Gyges, king of the Lydians, that a person should mind his own business (skopevein ta; eJwutou', Hdt. 1.8).31

THE USE OF APAGÔGÊ FOR HOMICIDE In the section of their response dedicated to advice regarding the law of homicide, the Exêgêtai focus solely on the technical illegality, and therefore the practical inadvisability, of a dikê phonou. Neither in recounting the words of the Interpreters nor in his own voice does the trierarch recognize the possibility of bringing the freedwoman’s killers to court by other means; specifically, by apagôgê, endeixis, and/or ephêgêsis.32 In the fourth century, these three related, and often allied, procedures (which henceforth will be referred to by the simplifying designation apagôgê in order to avoid needless repetition, except where it is important to ob28 Evjen (1971) 262. 29 Evjen (1971) 259. In this respect the diômosia in a dikê phonou will have differed from the diômosia in a lawsuit for intentional wounding (Lys. 3.1; 4.4). Since the action for intentional wounding was a graphê (traumatos ek pronoias), and therefore open to prosecution by any willing Athenian citizen, a wounding prosecutor would not have needed to establish his relationship to the victim. 30 Cf. Grace (1975) 7; Gagarin (1979) 313. 31 Cf. Panagiotou (1974) 432, 436. 32 On these procedures and the relationship between them see Hansen (1976).

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serve the distinction between them) could be employed to prosecute a homicide by any willing Athenian citizen (above, p. 61), and so the fact that the trierarch was neither kin to nor master of the victim – which legally barred his bringing a dikê phonou – would present no impediment to prosecution by these means. It is, of course, possible that the Interpreters mentioned the possibility of apagôgê to the trierarch and that he (or his logographer) chose not to transmit this information to the jury in [Demosthenes] 47. The jury was, after all, at the trierarch’s mercy as to the contents of his meeting with the Interpreters; and it is worth nothing that, although the trierarch generally displays considerable diligence in providing the testimony of supporting witnesses, he presents no deposition to corroborate the account of his consultation with the Interpreters. If the Interpreters brought up the topic of apagôgê and the trierarch omitted that fact from his speech, it would not be difficult to explain his decision. Like any Athenian litigant, the trierarch is trying to present himself to his jury in the best possible light while casting all conceivable aspersions at his opponents. He therefore portrays himself as having been sufficiently appalled at the freedwoman’s killing that it took the express prohibition of Draco’s law, corroborated by the auctoritas of the Interpreters and the judgment of his friends, to dissuade him from taking her killers to court. The trierarch, then, may simply have suppressed a part of his conversation with the Interpreters (or with his friends) that would compromise his self-portrait as the willing but regrettably incapable avenger, but we must also consider some alternative possibilities. To begin with, when the trierarch discussed the freedwoman’s killing with the Interpreters and later with his friends, legal remedies for homicide besides the dikê phonou may not have occurred to them. As the Athenian homicide courts were specialized to a degree far beyond the normal jury-courts (dikastêria), in that they were supervised by one expert (the basileus) and staffed by others (the Council of the Areopagus, the ephetai, and the phylobasileis), we perhaps should not assume that the average Athenian citizen possessed anything more than a vague familiarity with even his city’s best-known homicide laws.33 In favor of this view is the fact that, in a lawsuit for false witness, the trierarch instructs his jury on the homicide law at some length (§§ 72–73) before citing the relevant Draconian clauses. If the average Athenian knew little about the dikê phonou, he might well be expected to know even less about apagôgê for homicide, given its rarity.34 Alternatively, the trierarch, the Interpreters, and his friends may have been aware of the availability of apagôgê but either did not consider it worth mentioning or dismissed it upon due consideration. Edward Harris has demonstrated, on the basis of the eligibility of all Athenian citizens to serve as regular jurors and the personnel requirements of the dikastêria, the risks of imputing to Classical Athenians a significant degree of ignorance of their legal system;35 and we should remember that, in contrast to the specialization of the dikê phonou, lawsuits prosecuted by apagôgê (including apagôgai for homicide, however infrequent) were tried in the dikastêria 33 Hansen (1981) 20–21. 34 See below, pp. 126–28, and Gagarin (1979) 321; contra Hansen (1981) 20. 35 Harris (1994b).

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(above, p. 61). Consequently, some or all of the people involved in the discussions following the freedwoman’s death may have known that apagôgê could be used to prosecute a suspected killer; just as importantly, some or all of the jurors before whom the trierarch delivered [Demosthenes] 47 may have known so as well. To summarize: we know that, under Athenian law, if the trierarch wished to prosecute the freedwoman’s killers, the kin requirement in Draco’s law governing dikai phonou need not have constituted a dead end: the trierarch could have legally prosecuted the freedwoman’s killers by apagôgê. The trierarch’s failure to mention this option invites one of two conclusions: either the Interpreters, the trierarch, and his friends were unaware of, or for some reason ignored, remedies for homicide apart from the dikê phonou; or the alternative procedures did arise in the conversations following the freedwoman’s death, but the trierarch and his logographer felt comfortable suppressing their existence in the composition and delivery of [Demosthenes] 47. The following examination of the history, nature, and attested use of apagôgê for homicide, with special consideration of the role of the victim’s family, offers a plausible explanation for either of the aforementioned scenarios.

Apagôgê and homicide from Draco to Antiphon 5 Two clauses of Draco’s law, cited in Demosthenes’ Against Aristocrates, refer to the use of apagôgê and endeixis in connection with homicide.36 Both clauses address the issue of exiled killers who return to Attica in defiance of their banishment. The first sanctions the killing or arrest (apagôgê) of such individuals: “it shall be permitted to kill or arrest killers in our land” (tou;~ d∆ ajndrofovnou~ ejxei'nai ajpokteivnein ejn th/' hJmedaph'/ kai; ajpavgein, Dem. 23.28 [lex] = IG I3 104.30–31).37 The second shields from prosecution those who denounce exiles in violation of their banishment with the result that the violator is executed: “there shall be no dikai phonou anywhere against those who denounce (ejndeiknuvntwn) exiles, if one returns where he is not allowed” (fovnou de; divka~ mh; ei\nai mhdamou' kata; tw'n tou;~ feuvgonta~ ejndeiknuvntwn, ejavn ti~ kativh/ o{poi mh; e[xestin, Dem. 23.51 [lex]).38 (Demosthenes assumes that the exiles in question have been banished from Attica for homicide, but this is not a necessary conclusion. “Exiles” [feuvgonta~] includes but is not limited to exiled killers: had Draco meant only “exiled killers,” he would have written ajndrofovnou~, as above.) This clause, therefore, envisions a scenario in which a

36 Pace Hansen (1976) 108, 134, Dem. 23.31 does not convincingly demonstrate the existence of ephêgêsis in Draco’s homicide law. Dem. 23.31 discusses the Draconian clause cited at § 28, which mentions apagôgê but not ephêgêsis; and the qesmoqevtai in § 31 are presumably to be identified with tou;~ a[rconta~, w|n e{kastoi dikastaiv eijsi in § 28 (note the plural “archons” and their juridical function). 37 Stroud (1968) 54–56; Gagarin (1979) 316–17; Hansen (1976) 16, 107–8, 114–16. Clearly kaiv here means “or,” not “and” (Denniston [1950] 292; cf., e. g., Dem. 24.113). 38 Hansen (1976) 16, 115–16; Papillon (1998) 52.

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banished individual violates his terms of exile and is executed as a result of an endeixis, and absolves of culpability the man who brings the endeixis.39 These provisions permit the use of apagôgê and endeixis against killers who have already been convicted; thus in the strict sense the offense redressed by apagôgê and endeixis in these cases is not the homicide itself but the killer’s violation of his sentence of exile. The first documented use of endeixis and apagôgê to bring an accusation against a suspected killer – that is, of endeixis and apagôgê for homicide proper, such as were available to the trierarch of [Demosthenes] 47 against the killers of his former nurse – does not appear until the late fifth century, in the prosecution of Euxitheus for the killing of Herodes (PA 6537), for which case Antiphon composed Euxitheus’ defense speech (Antiphon 5, On the Killing of Herodes).40 The trial occurred while Mytilene was subject to Athens and therefore can be dated to the period between 427 and 412. Euxitheus, a Mytilenean, had been traveling aboard the same ship as Herodes, an Athenian, when a storm compelled their vessel to dock at Lesbos in the vicinity of Methymna. While waiting for the storm to clear, the two men boarded another boat and set to drinking; Herodes disappeared during the night and was never seen again, dead or alive. On the basis of a statement made by a slave under torture and an incriminating letter supposedly written by Euxitheus, Herodes’ relatives accused Euxitheus of killing their kinsman. In accordance with the interstate regulations governing members of the Athenian Empire, the case was tried at Athens;41 however, instead of using the standard dikê phonou, Herodes’ kinsmen prosecuted Euxitheus by endeixis and apagôgê. In his defense speech Euxitheus objects strenuously to the use of these irregular procedures: prw'ton me;n ga;r kakou'rgo~ ejndedeigmevno~ fovnou divkhn feuvgw, o} oujdei;~ pwvpot j e[paqe tw'n ejn th'/ gh'/ tauvth/. kai; wJ~ me;n ouj kakou'rgov~ eijmi oujd∆ e[noco~ tw'/ tw'n kakouvrgwn novmw/, aujtoi; ou|toi touvtou ge mavrture~ gegevnhntai. peri; ga;r tw'n kleptw'n kai; lwpodutw'n oJ novmo~ kei'tai, w|n oujde;n ejmoi; proso;n ajpevdeixan. ou{tw~ ei[~ ge tauvthn th;n ajpagwgh;n nomimwtavthn kai; dikaiotavthn pepoihvkasin uJmi'n th;n ajpoyhvfisivn mou. fasi; de; au\ tov ge ajpokteivnein mevga kakouvrghma ei\nai, kai; ejgw; oJmologw' mevgistovn ge, kai; to; iJerosulei'n kai; to; prodidovnai th;n povlin: ajlla; cwri;~ peri; aujtw'n eJkavstou oiJ novmoi kei'ntai. First of all, I am on trial for homicide after being denounced as a malefactor (kakou'rgo~ ejndedeigmevno~), a thing that has never happened to anyone in this country. And my opponents themselves have borne witness that I am not a malefactor and not liable under the law on malefactors. For that law deals with thieves and cloak-snatchers, charges that they have not shown to relate to me at all. And so, with regard to this apagôgê, they have made your acquittal of me

39 Cf. Demosthenes’ exegesis at §§ 51–52; Hansen (1976) 16, 20–21. 40 On this speech see Gagarin (1979) 317–19, (1989), (1997); Hansen (1976); Gagarin in Gagarin-MacDowell (1998) 48–72; Carawan (1998) 313–54; Usher (1999) 34–40; Jebb (1875) 1.55–62; Blass (1887–98) 1.174–87, 645. 41 Euxitheus’ case had to be tried at Athens for two reasons. (1) All lawsuits between Athenians and residents of allied cities were heard at Athens (Thuc. 1.77; [Xen.] Ath. Pol. 1.16–18; cf. IG I3 10 = Fornara [1983] no. 68 = Meiggs-Lewis [1988] no. 31). (2) Lawsuits involving any resident of an allied city that carried the penalty of death, exile, or disfranchisement received an automatic appeal at Athens (IG I3 40 = Fornara [1983] no. 103 = Meiggs-Lewis [1988] no. 52).

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From the complaints voiced by Euxitheus in §§ 8–19 and recapitulated in §§ 84–95 we can reconstruct the procedures used by his prosecutors to bring him to court. Herodes’ relatives first lodged an endeixis, denouncing Euxitheus to the Eleven as a “malefactor” (kakourgos). At least by judicial custom, and perhaps specified under “the law on malefactors” cited by Euxitheus, offenses that qualified their perpetrators as kakourgoi included theft and cloak-snatching, both mentioned by Euxitheus above. By 346/5, when Aeschines delivered his oration Against Timarchus, seducers and killers also fell under the rubric of kakourgoi (Aeschin. 1.90–91).42 From Euxitheus’ objections we may be certain that, at the time of his trial, homicide was not mentioned in the law on kakourgoi;43 we will address below the reliability of Euxitheus’ assertion that the prosecution of homicide in this manner was unprecedented. Whether or not killers were considered kakourgoi either by law or by custom, the Eleven accepted the endeixis; Herodes’ relatives then arrested Euxitheus by apagôgê (§ 9, quoted above; cf. § 85). Either before or after his arrest, Euxitheus offered three men to stand surety for him, as he claims the law entitled him to do, but Herodes’ kin convinced the Eleven to refuse Euxitheus’ request for bail (§ 17), and so Euxitheus was imprisoned pending trial. At several points Euxitheus asserts that the use of endeixis and apagôgê to bring a suspected killer to trial lacks precedent in Athenian law,44 and this argument has occasioned some scholarly dispute.45 While Euxitheus, a Mytilenean, obviously was in no position to possess expert knowledge of the homicide law of Athens, Antiphon, who wrote his speech, certainly was: he was Athens’ first professional logographer, apparently specializing in homicide cases, and one of the leading Athenian intellectuals of his day.46 It would have been pointlessly risky for Antiphon to have Euxitheus proffer this argument if endeixis and apagôgê had been used in the past – or at least in recent memory – to prosecute a suspected killer: a single juror who remembered such procedures being used could nullify a linchpin of Euxitheus’ defense. We should therefore accept Euxitheus’ assertion that the use of endeixis and apagôgê against a suspected killer was, in fact, unprecedented. Draco’s law allowed endeixis and apagôgê against convicted killers for violation of exile, and either Draco or a subsequent lawgiver permitted apagôgê against accused killers who violated the basileus’ proclamation ordering them to “stay away from the customary things” (lawcourts, temples, reli42 43 44 45

Hansen (1976) 45, (1981) 23–24; Carey (2000) 54; Fisher (2001) 224–26. Hansen (1976) 105. On the value of precedent in Athenian law see above, p. 57 with n. 97. E. g., Hansen (1976) 105–7, after reviewing the evidence pro and con, refuses to declare for either side, concluding that “[i]t is possible that Antiphon is right and that Euxitheus really is the first to have been arrested as a kakou'rgo~, though he is charged with murder,” while Gagarin (1997) 173, 180–81 accepts Euxitheus’ assertion of the lack of precedent; contra Carawan (1998) 334–35. 46 [Plut.] Mor. 832c–d (Vit. X Orat., Antiphon 1–5); Thuc. 8.68; Gagarin (2002) 38–52.

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gious ceremonies, and the agora: above, p. 73); but Herodes’ kin successfully convinced the Eleven to accept, for the first time, an endeixis and apagôgê used to bring a suspected killer to trial and thus serving as an alternative to the dikê phonou for the prosecution of homicide per se. This decision by the Eleven set a precedent, and thenceforth suspected killers (androphonoi) took their place alongside thieves, cloak-snatchers, and seducers on the list of kakourgoi (Aeschin. 1.91). Why, then, did Herodes’ relatives opt to prosecute Euxitheus for homicide by endeixis and apagôgê rather than by the standard dikê phonou? Euxitheus himself posits a number of prosecutorial motives. He alleges that Herodes’ relatives stand to gain financially from a conviction by apagôgê, since the penalty upon conviction is assessable (§ 10);47 but he appears to contradict this statement in other parts of his speech where he states that he is facing a penalty of death (e. g., §§ 16, 59).48 Proceeding by apagôgê meant that the prosecutors and their witnesses avoided swearing the diômosia mandatory in a dikê phonou and thus did not risk the divine wrath attendant upon a false charge (§§ 11, 15; see above, p. 61). Even if Euxitheus won an acquittal in the instant apagôgê, the prosecution could try him again on the same charge by a dikê phonou (§§ 16, 85ff.).49 The most plausible motive for prosecution by apagôgê, however, is that Euxitheus’ arrest and imprisonment prevented him from fleeing Athens.50 Addressing his prosecutor, Euxitheus says, levgei~ de; wJ~ oujk a]n parevmeina eij ejleluvmhn, ajll∆ wj/covmhn a]n ajpiwvn, wJsperei; a[kontav me ajnagkavsa~ eijselqei'n eij~ th;n gh;n tauvthn. kaivtoi ejmoi; eij mhde;n dievfere stevresqai th'sde th'~ povlew~, i[son h\n moi kai; prosklhqevnti mh; ejlqei'n, ajll∆ ejrhvmhn ojflei'n th;n divkhn, tou'to d∆ ajpologhsamevnw/ th;n protevran ejxei'nai ejxelqei'n: a{pasi ga;r tou'to koinovn ejsti. su; dev, o} toi'~ a[lloi~ ”Ellhsi koinovn ejstin, ijdiva/ zhtei'~ me movnon ajposterei'n, aujto;~ sautw'/ novmon qevmeno~. You claim that if I had been released, I would not have remained here but would have left, as if you had compelled me against my will to come to this country. And yet, if it made no difference to me to be deprived of this city, I could just as well not have come when I received the summons, instead losing the case by default; or, on the other hand, I could have made my first defense speech and then left, for that is a right common to all. But you seek on your own authority to deprive me alone of a right common to all the other Greeks, making your own law for yourself. (§ 13)

Here Euxitheus gets to the heart of the matter: he represents a flight risk, and his attempts to convince the jury otherwise do not hold up under scrutiny. His assertion that he came to Athens of his own accord is suspect, since he is a citizen of Mytilene, an Athenian ally. Therefore, unless he left the territory of the Athenian Empire altogether, he could not be sure of escaping Athenian jurisdiction, and Athenian justice, indefinitely; and even if he decided to take his chances as a fugitive, he would be sentenced to death in absentia51 and might render his fellow Mytileneans liable to 47 48 49 50 51

See Carawan (1998) 340–42. Gagarin (1979) 319. On the merits of this argument see Gagarin (2002) 159. Gagarin (1979) 318; Carawan (1998) 333. Cf. the decree passed in the 460’s or 450’s outlawing Arthmius of Zeleia and his descendants, which effectively declared them public enemies of Athens (Dem. 9.43–44, 19.271; Aeschin. 3.258; Din. 2.24–25; Plut. Themistocles 6; Fornara [1983] no. 69; Phillips [2004] 174, 245).

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androlêpsia (see the Appendix). Coming to Athens, therefore, was not nearly as voluntary an act as Euxitheus would have his jury believe. Nonetheless, summoning Euxitheus to Athens was one thing; keeping him there was another. Euxitheus will not have known the strength of the prosecution’s case until his arrival in Athens, and so Herodes’ relatives had reason to be concerned that, once apprised of the evidence against him, Euxitheus might recalculate his odds and decide to flee – a possibility that Euxitheus mentions only in order to dismiss it, but that we should take seriously. As Euxitheus himself observes, if Herodes’ kinsmen had brought a dikê phonou against him, he could have abandoned his defense and fled into self-imposed exile at any time before commencing his second trial speech. Such an action would have earned him an in absentia conviction and death sentence but would have robbed his prosecutors of the prospect of immediate justice, and perhaps of any justice at all. Proceeding by endeixis and apagôgê, however, insured Herodes’ kinsmen against this possibility and guaranteed that Euxitheus would face judgment. Endeixis and apagôgê were, therefore, first used as remedies for homicide proper (as distinct from their function as remedies for improper trespass by convicted or accused killers) not in order to close a loophole in Draco’s law, which allowed only family members within the degree of descendant first cousin once removed to prosecute a killing and thus left victims without the requisite kin unavenged, but rather in order to prevent a suspected killer from avoiding trial by flight. In principle, though, the ability to prosecute a homicide by apagôgê, endeixis, and/or ephêgêsis did close the loophole, since any Athenian citizen could employ these procedures, regardless of his relationship to the victim. We must now examine how often this principle was put into practice; that is, how common was it for non-kin to prosecute a homicide by means of apagôgê and related procedures?

Attested instances of apagôgê, endeixis, and ephêgêsis in connection with homicide In his catalogue of 33 known occurrences of apagôgê, endeixis, and ephêgêsis,52 Hansen found seven instances in which these procedures were employed in connection with homicide. 1. (Hansen, no. 1) Herodes’ relatives prosecute Euxitheus of Mytilene by endeixis and apagôgê for the killing of Herodes (Antiphon 5). The trial occurred between 427 and 412; the verdict is unknown. 2. (Hansen, no. 4–5) Friends of Phrynichus (PA 15011), one of the oligarchs of 411, prosecute Phrynichus’ killers, Apollodorus of Megara and Thrasybulus of Calydon, by apagôgê (Lycurgus 1.112; cf. Lysias 13.71–73: below, p. 195). The arrest occurred in late 411 or early 410; the defendants were freed from prison before trial by a decree of the Assembly. 3. (Hansen, no. 11) One or more unknown individuals prosecute Menestratus of the deme Amphitrope (PA 10002) by apagôgê (Lysias 13.55–57: below, p. 191 n. 15). At the beginning of the oligarchy of 404/3, Menestratus informed on some 52 Hansen (1976) 122–43.

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of his fellow citizens, denouncing them as enemies of the regime; they were then executed by the Thirty Tyrants. Menestratus’ trial occurred between the fall of the Thirty in 403 and the trial of Agoratus (see number 4 below) ca. 398; Menestratus was convicted and executed by apotympanismos (see above, p. 63). 4. (Hansen, no. 12) Dionysius (PA 4091) and an unnamed kinsman (the speaker of Lysias 13: see chapter 7) prosecute Agoratus (PA 177) by apagôgê for informing against and thereby procuring the execution of Dionysodorus (PA 4278). Dionysius is the victim’s brother; the speaker of Lysias 13 is the victim’s brother-in-law (SiHu) and first cousin. The trial occurred ca. 398; the verdict is unknown. 5. (Hansen, no. 16) Satyrides, Timoxenus, and Miltiades of Ceos prosecute Antipater of Ceos for killing ?Aesion, the Athenian proxenos on Ceos. The case was heard by the Athenian Council of 500, which convicted Antipater and sentenced him to death (IG II2 111 = Tod [1946–48] no. 142.27–42 = Rhodes-Osborne [2003] no. 39.27–45) sometime between 364 and 362.53 Hansen categorizes this lawsuit as “possibly” an apagôgê and allows that “the classification of the trial of Antipatros as an apagôgê is most problematic”; it is, in fact, improbable, since the procedure employed against Antipater is never named in the inscription, and the case was tried not by a dikastêrion (as we would expect in an apagôgê) but by the Council of 500. 6. (Hansen, no. 17) At a meeting of the Assembly, the thesmothetai arrest an unnamed individual by apagôgê for violating his sentence of exile for homicide; he is executed without trial (Demosthenes 23.31). Demosthenes 23 was delivered in 352/1, and the speaker states that these events happened “last year”; that is, in 353/2. 7. (Hansen, no. 23) At a meeting of the Council of 500, Meidias (PA = APF 9719) proposes the arrest and execution of Aristarchus (PA 1656) for the killing of Nicodemus (PA 10868). No arrest is carried out, and MacDowell is probably right to conclude that “[i]f Meidias really said what D(emosthenes) attributes to him here, he was speaking wildly, not proposing a proper legal action.”54 Later, in 348 or 347, Nicodemus’ relatives brought a dikê phonou against Aristarchus, who fled Attica before trial (Demosthenes 21.104, 116–17; Aeschines 1.171–72; S Dem. 21.104 [364 Dilts], 110 [385 Dilts]; S Aeschin. 1.171 [339 Dilts]; on the conflict between Demosthenes and Meidias see above, p. 21). Meidias was not related to Nicodemus, but there appears to have been some cooperation between Meidias and Nicodemus’ relatives. Since we are presently concerned with the use of apagôgê and related procedures to bring people to trial for homicide per se, we may dismiss the last three listed items: number 5 cannot be securely identified as an apagôgê; number 6 is an apagôgê brought against a convicted killer for violation of his exile, not against a suspected killer; and number 7 is a rejected proposal for an apagôgê. This leaves only four cases. In the trials of Euxitheus (number 1) and Agoratus (number 4), kinsmen of the victims who were qualified to bring a dikê phonou bring an apagôgê 53 Tod (1946–48) 2.131; Hansen (1976) 133 with n. 3. 54 MacDowell (1990) 339–40.

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instead; Lysias’ account of the trial of Menestratus (number 3) contains no information regarding the relationship between the prosecutor(s) and victims. This leaves only one case, the killing of Phrynichus (number 2), in which we know that the prosecutors were not related to the victim and thus could not have lodged a dikê phonou. Notably, Phrynichus’ killers, Apollodorus of Megara and Thrasybulus of Calydon, were foreigners, like Euxitheus in Antiphon 5, and so presented the same risk of flight as Euxitheus did; it is a reasonable conjecture that this argument helped the prosecutors of Apollodorus and Thrasybulus obtain their arrest warrant from the Eleven. Nonetheless, in the aftermath of the oligarchic revolution of 411, the late Phrynichus was so unpopular that his assassins were not only freed by decree of the Assembly but subsequently voted public honors and Athenian citizenship.55 These few attested instances of the prosecution of homicide by apagôgê indicate that the Athenians did not view the primary function of apagôgê for homicide as addressing the case of a kinless victim and thereby closing a loophole in Draco’s law. While in theory the availability of apagôgê for homicide, beginning with the prosecution of Euxitheus in the late fifth century, allowed any Athenian citizen to prosecute a killing, regardless of his relationship to the victim, the evident rarity of apagôgai mounted by non-kin suggests that Athenians continued to conceive of homicide as an offense best redressed by the victim’s family, whether by the traditional dikê phonou or by apagôgê.56 This conclusion finds tacit support in the summary of homicide courts and procedures given in Demosthenes’ Against Aristocrates. After discussing the dedicated homicide courts at the Areopagus, Palladion, Delphinion, Prytaneion, and Phreatto (above, pp. 59–60), Demosthenes describes the use of apagôgê as follows: eij pavnta tau'tav ti~ hjgnovhken, h] kai; parelhluvqasin oiJ crovnoi ejn oi|~ e[dei touvtwn e{kasta poiei'n, h] di∆ a[llo ti oujci; bouvletai touvtou~ tou;~ trovpou~ ejpexievnai, to;n ajndrofovnon d∆ oJra'/ periiovnt∆ ejn toi'~ iJeroi'~ kai; kata; th;n ajgoravn, ajpavgein e[xestin eij~ to; desmwthvrion...kajntau'q∆ ajpacqei;~ oujd∆ oJtiou'n, pri;n a]n kriqh',/ peivsetai, ajll∆ ejan; me;n aJlw',/ qanavtw/ zhmiwqhvsetai, ejan; de; mh; metalavbh/ to; pevmpton mevro~ tw'n yhvfwn oJ ajpagagwvn, ciliva~ prosoflhvsei. If one is ignorant of all these [homicide courts], or if the time in which each of these things had to be done has elapsed, or if for some other reason he does not wish to prosecute in these ways, and he sees the killer circulating in the temples and around the agora, he may arrest him and take him to the prison.... And after the killer’s arrest, nothing will happen to him until he is tried; then, if he is convicted, he will receive the death penalty; but if the man who arrested him does not receive one-fifth of the votes, he will incur a fine of 1,000 drachmas. (Dem. 23.80)

Hansen argues that Demosthenes’ description refers to a type of apagôgê for homicide (which Hansen labels apagôgê phonou) distinct from the apagôgê kakourgôn used, for example, against Euxitheus in Antiphon 5. The difference, according to Hansen, is that the apagôgê phonou “could only be employed if the suspect appeared in public,” and that the suspect’s guilt or innocence was determined on two separate issues: the homicide itself and the suspect’s appearance in public.57 Hansen admits 55 Lys. 13.72 (below, pp. 195–96); IG I3 102 = Tod (1946–48) no. 86 = Meiggs-Lewis (1988) no. 85 = Fornara (1983) no. 155. 56 Cf. Gagarin (1979) 321–22. 57 Hansen (1976) 100; cf. similarly MacDowell (1978) 120–21.

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that since the jury rendered only one verdict, it is unclear what would happen if the defendant were guilty of only one count and not the other; for example, if the defendant had committed a homicide but had avoided the temples and the agora. This is not the only problem with accepting the existence of an apagôgê phonou. As Hansen notes, “[t]he law concerning ajpagwghv against suspected homicides [i. e., apagôgê phonou] does not seem to correspond very well with the law concerning apagoge against accused homicides.”58 Moreover, the requirements of an apagôgê phonou, as proposed by Hansen, conflict with the proclamation requirement evident elsewhere in Athenian homicide law, whereby people accused of homicide were warned by the basileus to stay away from public and religious places (above, p. 124). If we adopt Hansen’s view, we must conclude that proclamation against the killer was necessary in all other procedures (dikê phonou, apagôgê kakourgôn) but irrelevant in an apagôgê phonou: in the scenario constructed by Demosthenes, no accusation or proclamation precedes the arrest. Therefore, according to Hansen’s reading of Demosthenes, an unsuspecting person could be dragged out of a temple or the agora and hauled off to jail with no warning whatsoever, accused of a killing and, at the same time, of appearing in a place off limits to accused killers. That is, an apagôgê phonou would allow any would-be prosecutor to create and enforce a ban simultaneously. Such a procedure not only defies common sense but contradicts Athenian homicide law as we know it, and therefore the existence of an apagôgê phonou should be rejected.59 If there was no apagôgê phonou of the type proposed by Hansen, then how are we to interpret Demosthenes’ description of apagôgê? The correct explanation, I believe, is that Demosthenes is not accurately describing one type of apagôgê but conflating two. He sets out to explain the apagôgê used as a substitute for the dikê phonou: if someone wants to prosecute a killing but cannot use or opts against the dikê phonou, he can employ apagôgê to accuse a person of homicide. The problematic clause is the additional requirement “and (if) he sees the killer circulating in the temples and around the agora,” which applies not to apagôgê for homicide per se but to apagôgê for violation of the ban proclaimed against an individual who has already been accused (or convicted) of homicide. This hypothesis of conflation thus finds Demosthenes guilty of a minor and explicable mistake, while maintaining the internal consistency of Athenian homicide law.60 58 Hansen (1976) 101. 59 Cf. Gagarin (1979) 314–16. Note, however, the analogy drawn by MacDowell (1963) 134 with the graphê hetairêseôs (Aeschin. 1.19–20); and cf. the dokimasia tôn rhêtorôn brought against Timarchus (Aeschin. 1.28–32). 60 Dispensing with Hansen’s apagôgê phonou, we are left with three, not four, types of apagôgê connected with homicide (cf. Hansen [1976] 99–108; Ruschenbusch [1968] 67 with n. 203; Gagarin [1979] 313–22; Carawan [1998] 335–36). (1) Apagôgê kakourgou (and endeixis kakourgou) was the only type of apagôgê used to prosecute a killing per se. Beginning with Antiphon 5, killers were considered kakourgoi: cf. Aeschin. 1.91, where killers are listed as kakourgoi alongside cloak-snatchers, thieves, and seducers. The prosecutions of Apollodorus and Thrasybulus, Menestratus, and Agoratus, and Meidias’ proposed arrest of Aristarchus (above, pp. 126–27), therefore fall into this category. (2) Apagôgê against individuals accused of homicide who violated the proclamation barring them from specified public places before trial (Dem.

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Just as important as what Demosthenes says in his discussion of apagôgê for homicide is what he does not say. He lists several motives for choosing apagôgê over a dikê phonou: the would-be prosecutor is ignorant of the system of courts that tries dikai phonou; the time-limit for a dikê phonou has elapsed;61 or “for some other reason [the would-be prosecutor] does not wish to prosecute” by dikê phonou. Nowhere does Demosthenes mention a contingency in which the would-be prosecutor elects to proceed by apagôgê because he is unrelated to the victim and thereby disqualified from bringing a dikê phonou. Nor is such a situation included in the catchall category of “some other reason.” The subject ti~ (“someone,” the would-be prosecutor) remains the same throughout the sentence, and the first two conditions leading to the choice of apagôgê – ignorance of the homicide courts or insufficent time to use them – make it clear that Demosthenes is envisioning a person who would be qualified to use the homicide courts if he knew about them or had sufficient time; that is, a relative of the victim entitled to prosecute by dikê phonou. Finally, and tellingly, the third condition leading to the choice of apagôgê over a dikê phonou is the preference, not the capacity, of the would-be prosecutor: Demosthenes states that if he does not wish (oujci; bouvletai) to prosecute by dikê phonou in the dedicated homicide courts – not “if he cannot” prosecute by dikê phonou (which would be oujk e[xesti aujtw'/ vel sim.) – he may elect to proceed by apagôgê. Demosthenes, therefore, presents apagôgê as an alternative to the dikê phonou for relatives of a homicide victim, not as a way for individuals unrelated to the victim to skirt Draco’s kin requirement and prosecute a killing. Thus the evidence of the use of apagôgê for homicide from its first instance in Antiphon 5, from the documented subsequent apagôgai for homicide, and from Demosthenes 23 all conforms to a single pattern and supports the same conclusion: although, beginning with the prosecution of Herodes in the late fifth century, apagôgê for homicide was technically available to any Athenian citizen regardless of his relationship to the victim, throughout the Classical period Athenians viewed the victim’s relatives as his proper avengers, either by the regular dikê phonou or by apagôgê. Such an attitude explains the absence of apagôgê from the trierarch’s presentation of his legal options in the wake of his nurse’s death in [Demosthenes] 47. Since the law permitted non-kin to prosecute homicide by apagôgê, the trierarch could have done so; but the principle that avenging a homicide was the business of the victim’s family militated against such a course.62 Therefore, in light of the documented rarity of apagô24.105 [lex]; Hansen [1976] 99–100). (3) Apagôgê against individuals convicted of homicide and sentenced to exile who violated the terms of their sentence (Dem. 23.28 [lex], 31: above, p. 122). 61 This statement can be explained in two ways: either the prothesmia (statute of limitations) for a dikê phonou has expired (e. g., Weil [1886] 222; on the question of a prothesmia for homicide see above, p. 106 n. 64) or there are fewer than three months left in the year, so that a dikê phonou cannot be filed (e. g., Hansen [1976] 101; cf. above, p. 74). 62 Cf. Panagiotou (1974) 426–27; Grace (1975) 7; Tulin (1996) 103–4 (with regard to the dikê phonou). In Medieval Iceland, by comparison, homicide lawsuits were assignable, and hence non-kin were entitled to prosecute, but the prevailing ethic considered the victim’s kin, and especially his close kin, as his proper avengers. See Laxdæla saga 14, 55; Hrafnkels saga Freysgoða 7, 8.

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gai for homicide mounted by individuals unrelated to the victim, the possibility of an apagôgê may simply never have occurred to the trierarch, his friends, or the Exêgêtai; and even if it did, the trierarch had good reason to reject it and felt confident that its omission from [Demosthenes] 47 would not compromise the image he wished to project of himself as a man with the will, but not the capacity, to avenge.

PART II HOMICIDE, VENGEANCE, AND THE THIRTY TYRANTS

CHAPTER 5 FROM APAGÔGÊ TO AMNESTY: CONTINUITY AND CHANGE The Athenians of the Classical period took particular pride in the stability and permanence of their homicide laws. In his defense of Herodes, Antiphon praises the laws governing homicide as both the most ancient and the most static in the land: kaivtoi touv~ ge novmou~ oi} kei'ntai peri; tw'n toiouvtwn pavnta~ a]n oi\mai oJmologh'sai kavllista novmwn aJpavntwn kei'sqai kai; oJsiwvtata. uJpavrcei mevn ge aujtoi'~ ajrcaiotavtoi~ ei\nai ejn th'/ gh'/ tauvth/, e[peita tou;~ aujtou;~ ajei; peri; tw'n aujtw'n... Further, I think you would all agree that the laws established for such offenses [i. e., homicide] are the best and most hallowed of all laws. They are the oldest in this country, and further they have always been the same regarding the same things.... (Ant. 5.14)

The same assertion appears almost verbatim in Antiphon’s oration On the Chorister: kai; tou;~ me;n novmou~ oi} kei'ntai peri; tw'n toiouvtwn pavnte~ a]n ejpainevseian kavllista novmwn kei'sqai kai; oJsiwvtata. uJpavrcei me;n ga;r aujtoi'~ ajrcaiotavtoi~ ei\nai ejn th/' gh/' tauvth/, e[peita tou;~ aujtou;~ aijei; peri; tw'n aujtw'n... And all would praise the laws established for such offenses [i. e., homicide] as being the best and most hallowed of the laws. For they are the oldest in this country, and further they have always been the same regarding the same things.... (Ant. 6.2)

The first of Antiphon’s claims, that the homicide laws are the oldest laws in Athens, is well documented (modern doubts regarding the historicity of Draco notwithstanding: above, p. 43) and unanimously corroborated by Classical sources, both literary and epigraphical, which credit Athens’ homicide laws to Draco and attest that Draco’s legislation on homicide survived the general recension of Athenian law by Solon in 594/3 and remained in force through the Classical period.1 This overwhelming evidence compels us to accept the tradition, as exemplified in Antiphon, that Draco’s provisions on homicide were the oldest laws still in force in Classical Athens. Antiphon’s second assertion, that the laws on homicide “have always been the same regarding the same things,” presents more significant problems. It is a priori unlikely that the Athenians implemented no changes whatsoever to their homicide law in the period of roughly two centuries between Draco’s legislation and the trial of Euxitheus. On the most fundamental level, it is arguably improbable that Draco devised the entire system of homicide courts that operated in the fifth and fourth centuries (above, pp. 59–60).2 And, of course, we know (as Antiphon could not) that the very lawsuit in which Euxitheus characterized the homicide laws as “al1 2

E. g., IG I3 104.4–5; Andoc. 1.83–84 (decretum); Dem. 20.157–58; 23 passim; [Dem.] 47.71; [Arist.] Ath. Pol. 4.1, 7.1. See above, p. 43. Carawan (1998) 6–17; Gagarin (1981) 125–37.

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ways the same regarding the same things” would break new ground, serving as a precedent for broadening the use of the apagôgê and endeixis kakourgou to include the prosecution of homicides.3 Yet Antiphon is not saying that the Athenians never altered their homicide law; rather, as Michael Gagarin has observed, we must take into account the significance of the phrase peri; tw'n aujtw'n.4 The laws governing homicide have always been the same “regarding the same things”: that is, “Antiphon means that any particular provision dealing with a specific matter has remained unchanged, but that new provisions may have been created concerning new situations or new aspects of situations already covered by existing laws.”5 While the Athenians never abolished Draco’s homicide law, in whole or in part, they did amend it;6 and as this chapter will demonstrate, the political and social upheaval of the late fifth century led them temporarily to suspend some of its provisions. Nonetheless, Draco’s law continued to be valid from its enactment in 621/0 to the end of the Classical period, and thus the cornerstone of Athenian homicide law remained unaltered.7 During the late fifth century, however, the homicide law was a subject of continuing public discourse. While, as demonstrated in the previous chapter, the extension of apagôgê to suspected killers was casuistic in origin, ensuing political developments caused the Athenians to examine their homicide laws systematically. The oligarchic revolutions that wracked Athens toward the end of the fifth century, in 411 and again in 404, led the Athenians to pay renewed attention to their body of laws, and in particular to the law of homicide. In both 411 and 404, vertical stasis erupted between oligarchs and democrats8 and raged for less than a year, with an oligarchic government assuming control at Athens, before democracy was restored. In the seventh century, the need to quash dangerous vertical stasis had motivated the Athenians to commission Draco as their first lawgiver; the fifth century witnessed similar developments, as the Athenians twice embarked upon legislative measures in hopes of preventing an oligarchic revival and ensuring the stability of a newly reestablished democracy. Tellingly, in the aftermath of both oligarchic revolutions, Draco’s homicide law occupied center stage.

3

4 5 6 7 8

Further, if Antiphon composed On the Chorister (dated to 419 or 418: Heitsch [1980]; Gagarin [1997] 220–21, 245) after On the Killing of Herodes (between 427 and 412: above, p. 123), then he was well aware that the assertion made about the permanence of the homicide law at 6.2 required qualification. Cf. Pl. Gorg. 490e9–11: Callicles remarks, ÔW~ ajei; taujta; levgei~, w\ Swvkrate~, to which Socrates replies: Ouj movnon ge, w\ Kallivklei~, ajlla; kai; peri; tw'n aujtw'n. Gagarin (1981) 22–23; cf. Stroud (1968) 77; Gagarin (1997) 183–84. Gagarin (1981) 23–29. MacDowell (1963) 5–7. Owing to the greater complexity of Athenian politics and society in the fifth century than in the seventh, vertical stasis is now defined politically (oligarchs versus democrats) rather than economically (the nobility versus the masses). Nonetheless, it is hopefully not too cynical or simplistic to assert that, in many cases, economics determined politics: while we know of a number of prominent and wealthy Athenians who were staunch democrats as a matter of principle, rich Athenians tended toward oligarchy and poor Athenians toward democracy.

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Codification of the law, 410/09–405/4 In 410/09, when democracy was restored in the aftermath of the oligarchy of the Four Hundred and the Intermediate Regime that followed it, the Athenians embarked upon a general revision and codification of their laws, under the direction of officials called Recorders (anagrapheis) and Compilers (syngrapheis).9 This recension took place continuously until the Thirty Tyrants seized power at the very end of the year 405/4. Among the first actions of the anagrapheis was the republication of Draco’s law on homicide, which resulted in the inscription now known as IG I3 104. The preamble to the inscription (vv. 1–9) reads as follows:

5

Diovgn[e]to~ Freavrrio~ ejgrammavte[ue:] Diokle'~ e\rce: e[docsen te'i boule'i kai; to'i devmoi: ∆Akamanti;~ ejp[r]utavneue, [D]iov[g]neto~ ejgrammavteue, Eujquvdiko~ [ej]pestavte, ..e...ane~ ei\pe: to;[n] Dravkonto~ novmon to;m peri; to' fov[n]o ajnagra[f]savnton oiJ ajnagrafe'~ to;n novmon paralabovnte~ para; to' b[a]s[i]lev[o~ me]t[a; to' gramm]atevo~ te'~ boule'~ ej〈n〉 stevlei liqivnei kai; ka[t]a[q]evnt[on provs]qe[n] te'~ stoa'~ te'~ basileiva~: oiJ de; poletai; ajpomi[sqo]s[avnton kata; to;n n]ovmon, oiJ de; eJllenotamivai dovnton to; ajr[g]uv[r]i[on.]

Diognetus of Phrearrhioi was secretary; Diocles was archon. Resolved by the Council and the people; Acamantis held the prytany; Diognetus was secretary; Euthydicus was president; ..e... anes made the motion. Let the Recorders of the Laws (anagrapheis tôn nomôn) inscribe Draco’s law on homicide, having received it from the basileus along with the secretary of the Council, on a stone stele; and let them place it in front of the Royal Stoa. Let the pôlêtai let out the contract according to the law, and let the Hellênotamiai provide the funds.

Since Diocles served as eponymous archon in 409/8, the anagrapheis evidently turned their attention to Draco’s homicide law soon after their appointment, and presumably it was among the first laws they addressed. There is no solid evidence that the anagrapheis altered Draco’s law as they knew it in any way, by either addi-

9

The chief Athenian sources for the Four Hundred and the Intermediate Regime are Thuc. 8 and [Arist.] Ath. Pol. 29–33; for the codification under the restored democracy we have Lys. 30 and several preserved inscriptions, including IG I3 104 (see below). Important recent discussions include Ostwald (1986), Rhodes (1991), and Todd (1996). Officials charged with codification and/or publication of the laws, with the titles anagrapheis and syngrapheis, are attested during the oligarchy of the Four Hundred, the Intermediate Regime, and the restored democracy; this raises the question of the continuity of their activities. Ostwald (1986) 407–9 argues forcefully that the syngrapheis and anagrapheis active after the restoration of the democracy were actually appointed toward the end of the Intermediate Regime. However, as the Ath. Pol. (see especially 31.1 and 32.1) and Thucydides attest to the presence of syngrapheis and anagrapheis appointed by the Four Hundred with the primary goal of altering the Athenian constitution in the direction of oligarchy, it is better to interpret the presence of syngrapheis and anagrapheis under the Five Thousand as a continuation of this constitutional movement than as a precursor to the wholesale revision of laws conducted under the democracy from 410/09 on. As Rhodes (1991) 89 notes, it is unlikely that officials chosen by the Five Thousand to steer the Athenian constitution to the right would have been kept on when democracy was restored.

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tion or omission;10 and indeed the decree commemorated in the preamble to IG I3 104 instructs them simply to “inscribe Draco’s law on homicide.” We may therefore conclude that the Revolution of 411 and its aftermath occasioned no changes to the Athenian law of homicide; on the contrary, one of the first impulses of the restored democracy was to preserve and republish Draco’s law unchanged.

The Thirty Tyrants The situation during and after the oligarchic revolution of 404/3 was entirely different. Under pressure from Sparta, at the close of the Peloponnesian War in 404 the Athenian democracy was replaced by an oligarchy led by a board of thirty men known to posterity as the Thirty Tyrants.11 The Thirty quickly cemented their position by appointing, at the beginning of the civil year 404/3, a Council of 500, the Eleven who superintended the prison and executions, and a new board of Ten to govern the Peiraeus. While in 411 the Four Hundred had concentrated their revisionist efforts on the Athenian constitution and probably did not address non-constitutional law at all,12 the Thirty largely ignored their mandate to rewrite the constitution and focused instead on reforming individual statutes and transferring legal jurisdiction. They repealed the laws of Archestratus and Ephialtes concerning the Council of the Areopagus ([Arist.] Ath. Pol. 35.2), thereby presumably returning to the Areopagus powers of jurisdiction and authority taken away by Ephialtes in 462/1 (Archestratus and his laws are unknown). This may have been the extent of the Thirty’s revision of constitutional law;13 the rest of their legislative activity targeted individual statutes and institutions that fostered democracy. In order to decrease the power of the jury-courts, which were considered a bulwark of the democracy, the 10 Contra Rhodes (1991) 91. I say “as they knew it” because we cannot be certain that a complete copy of Draco’s homicide law existed in 409/8: although the interpretation offered above (cf. p. 51 n. 74) assumes that Draco’s law began as it does on the inscription, kai; ejavn is a very strange way to begin a law. 11 The Thirty may have acquired this unflattering sobriquet (at least in some quarters) while they were still in power: Xenophon has Theramenes describe the regime as “the tyranny of the city by the few” (to; uJp∆ ojlivgwn turannei'sqai th;n povlin, Hell. 2.3.48; cf. 2.3.16 with Dillery [1995] 148–49). 12 In the initial stages of the Revolution of 411, Cleitophon had attached a rider to a decree of Pythodorus, to the effect that the “ancestral laws” of Cleisthenes should be sought out (prosanazhth'sai...kai; tou;~ patrivou~ novmou~ ou}~ Kleisqevnh~ e[qhken o{te kaqivsth th;n dhmokrativan), but the oligarchs were clearly interested in Cleisthenes’ laws from a constitutional standpoint (w}~ ouj dhmotikh;n ajlla; paraplhsivan ou\san th;n Kleisqevnou~ politeivan th'/ Sovlwno~, [Arist.] Ath. Pol. 29.3). On Cleitophon’s rider and its implications see Rhodes (1993) 375–77; Gomme-Andrewes-Dover (1950–81) 5.214–16. Later in the Ath. Pol.’s discussion of the Four Hundred we find repeated references to constitutional revision (30.1, 31.1–2, 32.1) but no mention of compilation or revision of other laws. 13 See Fingarette (1971); cf. Dow (1961). Clinton (1982) 32ff. suggests that the Thirty physically removed laws inscribed by the anagrapheis between 410 and 404 from a wall near the Royal Stoa; Krentz (1982) 61 and Ostwald (1986) 479–80 concur, but see contra Rhodes (1991) 93– 94.

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Thirty annulled or amended ambiguous statutes that encouraged the proliferation of lawsuits. Solon’s testamentary law, for example, invalidated wills produced under conditions of insanity, senility, intoxication by drugs, illness, coercion, detention, or female influence ([Dem.] 46.14 [lex]); the Thirty removed these restrictions so as to reduce the number of contested inheritances ([Arist.] Ath. Pol. 35.2). As a further assault on the prominence of the dikastêria, the Thirty had many – perhaps most – lawsuits during their regime tried before the Council of 500, which the Thirty had packed with their supporters at the beginning of 404/3 and which served as their kangaroo court until the tyrants were deposed (see chapters 6 and 7). From the descriptions given by Lysias and Xenophon, it appears that the type of legal action characteristic of the reign of the Thirty was apagôgê to the Five Hundred, who displaced the jury-courts in this function.14 Lysias 13 contains multiple reports of individuals and groups summarily arrested and haled before the Council under the oligarchy; namely, Agoratus (§§ 21–31), a number of generals and taxiarchs who were perceived as enemies of oligarchy (§§ 34–38), Hippias of Thasos and Xenophon of Curium (§ 54), and Menestratus of the deme Amphitrope (§ 55). In his prosecution of Eratosthenes, a former member of the oligarchic junta, Lysias relates the arrest and execution of his brother Polemarchus (12.16); while he does not mention the Council of 500, the cross-examination of Eratosthenes at § 25 shows that the Council was at least complicit in Polemarchus’ execution, whether or not Polemarchus received a show trial before the Council between his arrest and execution. The orator’s comment in § 48 that Eratosthenes should have informed the Council that “all the impeachments” (tw'n eijsaggeliw'n aJpasw'n) were groundless and fabricated with the goal of harming Athenian citizens also indicates the frequency of trials before the Council; and while Lysias calls these trials impeachments (eisangeliai), the impeachment procedure does not preclude a preliminary summary arrest (apagôgê). Under the Thirty, Socrates famously refused to take part in the arrest of Leon of Salamis, which led to Leon’s execution.15 In addition to 14 Krentz (1982) 62; Phillips (2004) 16. 15 Pl. Ap. 32c–d; Epist. 7.324e–325a; Andoc. 1.94; Xen. Hell. 2.3.39; Mem. 4.4.3. None of these sources states that Leon was tried by the Council before his execution. According to Andocides, Leon was executed without trial (ajpevqanen ejkei'no~ a[krito~). The execution of innocents without benefit of trial became a stock accusation against the Thirty (e. g., Lys. 12.36, 82–83; 26.13; Isoc. 20.11) and in fact was a paradigmatic mark of the tyrant (cf. Hdt. 3.80.5, defining a tyrant as one who “changes ancestral laws, rapes women, and puts men to death without trial” [novmaiav te kinevei pavtria kai; bia'tai gunai'ka~ kteivnei te ajkrivtou~]). However, as Adams (1905) 178–79 notes, a[krito~ “does not necessarily mean ‘without trial,’ but may mean without full process as guaranteed by the constitution” – that is, to an Athenian, the democratic constitution. Therefore, even those tried by the Council of 500 under the Thirty could be said a[kritoi ajpoqnhv/skein; and thus several authors state that all 1,500 men executed under the Thirty died akritoi (Isoc. 7.67; 20.11; Aeschin. 3.235; on this topic generally see Carawan [1984]). In Leon’s case, there may have been no trial before the Council or anywhere else. Plato has Socrates remark that he himself might have faced execution for his insubordination had the Thirty not been deposed soon thereafter (Pl. Ap. 32d7–8); this may indicate that Leon’s execution took place late in the reign of the Thirty, and therefore presumably after the passage of the law giving the Thirty the ius vitae necisque over those (such as Leon) outside the list of Three Thousand (see below). Lysias twice mentions the mass arrest and execution of Salaminians (12.52; 13.44),

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these accounts of specified individuals and groups subjected to apagôgê, we find in Lysias and Xenophon broad statements that the Thirty commonly employed summary arrest to devastating and terrorizing effect.16 At some point during their regime, the Thirty transferred jurisdiction over homicide cases from the traditional homicide courts to the Council of 500.17 The terminus post quem non for this transition is the passage of a law providing that the Council of 500 alone had the authority to pass sentence of death upon those individuals included among the Three Thousand who enjoyed full rights of citizenship under the oligarchy (Xen. Hell. 2.3.51; see below, p. 176). While positive evidence is lacking, it is probable that the Council had been hearing homicide cases since the early stages of the reign of the Thirty, especially since the tyrants themselves were responsible for so many deaths. In a speech authored after the restoration of the democracy, Lysias may imply that the Thirty deprived the Areopagus of its homicide jurisdiction when he asserts that the Areopagus’ jurisdiction over dikai phonou “is both an ancestral function and has been assigned in our own time” (w|/ kai; pavtriovn ejsti kai; ejf∆ hJmw'n ajpodevdotai tou' fovnou ta;~ divka~ dikavzein, Lys. 1.30), thus perhaps indicating a recent gap in Areopagite jurisdiction;18 and a scholion to Aeschines 1.39 (S 82 Dilts) attests that the Thirty “defiled the laws of Draco” as well as those of Solon (ejlumhvnanto kai; tou;~ Dravkonto~ kai; tou;~ Sovlwno~ novmou~). At the outset of their administration, the Thirty enjoyed some popularity in Athens as a result of their crackdown on sycophants (malicious litigants). But they also moved quickly to silence opposition to the new oligarchy: a number of democratically-minded military officers, the “generals and taxiarchs” of Lysias 13, who had been denounced by an informer named Agoratus shortly before the Thirty assumed power, now received a show trial before the Council of 500, after which they were executed (see chapter 7). In order to finance the Spartan garrison that protected their regime, as well as to line their own pockets, the Thirty soon began to arrest metics (free resident aliens), then Athenian citizens, as public enemies; these men received sentences of death or exile and had their estates confiscated. During who may have included Leon. In the former passage he says that those arrested were condemned to death “on a single vote” (miva/ yhvfw/); this may imply a trial before the Council of 500 but could just as well refer to a vote of the Thirty. 16 Lys. 26.13: polloi; eij~ to; desmwthvrion ajphvgonto kai; a[kritoi uJpo; touvtwn (scil. the Thirty) ajpwvllunto; Lys. 13.44: mevmnhsqe de; kai; tou;~ ejnqavde dia; ta;~ ijdiva~ e[cqra~ ajpagomevnou~ eij~ to; desmwthvrion etc.; Xen. Hell. 2.3.12, 14, 21–22, 38; 2.4.14. 17 The assignment of capital jurisdiction to the Council of 500 blatantly violated Athens’ democratic constitution. A law authored probably by Cleisthenes and republished ca. 409/8 limited the penalty that the Council might inflict on its own authority to a fine of 500 dr. (IG I3 105.31– 32) and expressly forbade the Council from imposing capital punishment without the consent of the Assembly (v. 36). 18 Note contra, however, Dem. 23.66: tou'to movnon to; dikasthvrion oujci; tuvranno~, oujk ojligarciva, ouj dhmokrativa ta;~ fonika;~ divka~ ajfelevsqai tetovlmhken (“This court alone [scil. the Areopagus] no tyrant, no oligarchy, no democracy has dared to deprive of its homicide lawsuits”). Cf. Lipsius (1905–15) 42 with n. 129; Sandys (1912) 152; Bonner (1924) 175; Carey (1989) 78; Weil (1886) 216; Papillon (1998) 69.

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their eight-month reign, the Thirty consigned some 1,500 Athenians to execution ([Arist.] Ath. Pol. 35.4; Aeschin. 3.235; Isoc. 7.67; 20.11). As the popularity of the Thirty plummeted and supporters of democracy fled the city, disagreements erupted within the oligarchic junta. Extremists, led by Critias (PA = APF 8792), justified the Thirty’s bloody methods of raising revenue while dispatching political enemies, while the more moderate Theramenes (PA = APF 7234) expressed opposition that proved troubling to his colleagues. In an attempt to mollify Theramenes, Critias proposed the creation of a list of three thousand Athenians who would enjoy full political rights in the oligarchy. Despite Theramenes’ objection that the number 3,000 was insufficient and power should be distributed among a greater part of the citizen body, the Thirty carried out the plan. Having published the catalogue of 3,000, the Thirty took two additional steps: they disarmed all Athenians except the Three Thousand, and they passed a law that required a verdict of the Council of 500 to impose a death sentence on any of the Three Thousand, while a vote of the Thirty sufficed to execute anyone outside the catalogue. When Theramenes continued to voice his disapproval, Critias, in the name of the Thirty, erased Theramenes’ name from the list of Three Thousand at a meeting of the Council of 500 and sentenced Theramenes to death (Xen. Hell. 2.3.15–56; [Arist.] Ath. Pol. 36–37). In the wake of Theramenes’ execution, the Thirty ejected everyone except the Three Thousand from the city of Athens. Thrasybulus (PA = APF 7310), a prominent democrat, organized a counterinsurgency among the exiles and occupied the border fortress of Phyle in northern Attica. After an unsuccessful assault on Phyle, the Thirty seized control of the town of Eleusis in western Attica for use as a possible retreat in case of trouble; the entire male citizen population of Eleusis was executed so that the tyrants might seize their property. Thrasybulus and the democratic exiles subsequently marched south from Phyle and took up positions on the hill of Munychia in the Peiraeus; from their occupation of Munychia Athenian sources label the rebels “the men of the Peiraeus,” while the Thirty and their supporters, the Three Thousand, are called “the men of the city (i. e., Athens).” The decisive battle in the civil war occurred at Munychia and was won by the democrats; Critias, the leader of the Thirty, was killed in action, and on the following day the Three Thousand removed the Thirty from power, ending their eight-month reign, and replaced them with a board of Ten (Xen. Hell. 2.4.1–23; [Arist.] Ath. Pol. 38.1– 3; Lys. 12.52–57; 13.77–79).

Reconciliation: the Amnesty of 403 These Ten continued to fight the democrats for a brief time, until Sparta intervened to arrange a peace settlement. Employing the vocabulary of private enmity, the Athenians called the settlement a “reconciliation” (diallagai, dialyseis).19 The rec19 Scafuro (1997) 121–22; on diallagê/diallattô as technical terms of private enmity see above, p. 18.

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onciliation agreement that ended the civil war comprised two principal terms. First, Eleusis, to which most of the Thirty had fled, was separated from the Athenian state. Any of the Three Thousand who wished to move to Eleusis was allowed to do so but barred from holding political office in Athens, and travel between Eleusis and Athens was restricted to the annual celebration of the Eleusinian Mysteries. Eleusis retained its independence from Athens until 401/0, when an Athenian army retook the town by force (Xen. Hell. 2.4.24–43; [Arist.] Ath. Pol. 38.3–39, 40.4). The second term of peace, which is of immediate concern here since it directly and explicitly affected Athenian homicide law, was a general amnesty, enforced by oaths sworn by the entire Athenian population.20 The author of the Ath. Pol. summarizes the terms of this Amnesty of 403 as follows: ta;~ de; divka~ tou' fovnou ei\nai kata; ta; pavtria, ei[ tiv~ tina aujtovceir e[kteinen trwvsa~. tw'n de; parelhluqovtwn mhdeni; pro;~ mhdevna mnhsikakei'n ejxei'nai plh;n pro;~ tou;~ triavkonta kai; tou;~ devka kai; tou;~ e{ndeka kai; tou;~ tou' Peiraievw~ a[rxanta~, mhde; pro;~ touvtou~, eja;n divdwsin eujquvna~. There shall be lawsuits for homicide according to ancestral custom, if someone killed a person by wounding him with his own hand. No one shall be allowed to bear malice for past acts against anyone except the Thirty, the Ten, the Eleven, and those who governed the Peiraeus, nor even against these if they submit to review.21 ([Arist.] Ath. Pol. 39.5–6)

The requirement that a person must have killed with his own hand (autocheir) in order to be liable for a homicide committed under the Thirty marks an important deviation from the standard of liability created by Draco and enforced by the Athenians up to this point. Under Draco’s law the “own-hand” killer and the person who conspired to kill but did not physically commit the act incurred equal liability (dikavzen de; to;~ basileva~ ai[tion fovno e] [to;n aujtovceir ktevnant∆] e] boleuvsanta, IG I3 104.11–13: above, p. 53). While the Amnesty had no effect on trials for homicide committed with one’s own hand (autocheir), it disallowed all other accusations of homicide, namely those in which the accused was charged with conspiracy to kill (bouleusis).22 Comparison with Andocides 1.91 (below, p. 145) suggests that the phrase ta;~...divka~ tou' fovnou should be interpreted broadly as meaning all lawsuits for homicide (including trials by endeixis and apagôgê), not just the type of homicide lawsuit technically labeled dikê phonou.23 20 On the Amnesty of 403 see especially Cloché (1915); Dorjahn (1946); Loening (1987); Krentz (1982) 102–8; Ostwald (1986) ch. 10; Strauss (1987) 89–120; Wolpert (2002a), (2002b); Ober (2002); Tieman (2002); Quillin (2002). For the oaths see Andoc. 1.90–91 (below, pp. 144–45); Lys. 13.88–90; Xen. Hell. 2.4.43; [Arist.] Ath. Pol. 39.4, 40.2. 21 Scholars have long recognized that the statement on homicide trials represents an exception to the general amnesty that follows it (Cloché [1915] 259–62; Bonner [1924]; Loening [1987] 40; Rhodes [1993] 468; Carawan [1998] 126; Wolpert [2002b] 32). “The Ten” refers to the Ten who succeeded the Thirty; these must be distinguished from the Ten “who governed the Peiraeus,” who are specified but not enumerated. 22 Carawan (1998) 126–28; Wolpert (2002b) 33. 23 Carawan (1998) 125–26; cf. Loening (1987) 78. The phrase aujtovceir e[kteinen trwvsa~ is reconstructed by Chambers (1990) 318, (1994) 35 (cf. references ap. Rhodes [1993] 468) from the papyrus’ “autociraektisiotrwsas, with e inserted above the first i, e inserted above the second i, and ot deleted and ie inserted above” (Rhodes [1993] 468); as it preserves the begin-

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If the Athenians obeyed the Amnesty of 403 to the letter, its effect would have been to absolve almost every Athenian of culpability in almost every death that occurred under the Thirty. If only those who killed with their own hands bore liability, then arguably the only people who could be charged with homicide as a result of the numerous executions carried out during the reign of the Thirty would be the Eleven, who supervised the executions.24 We may go even further: on a strict interpretation of the autocheir requirement the Eleven would not even be liable for homicide in those cases where condemned persons received execution by hemlock, since hemlock was self-administered (Pl. Phaedo 117a–c: above, p. 63). But leaving the Eleven unprotected by the Amnesty for killings they committed with their own hands will have had little practical effect, since the Eleven were already excluded from the Amnesty ex officio unless they underwent and passed a review of their conduct in office (euthynai). The aim of the exception for non-autocheir killing was, therefore, not to encompass the Thirty, their principal accomplices (the Eleven and the ten governors of the Peiraeus), and their successors (the Ten), since all these officials were already bereft of the Amnesty’s protection unless and until they submitted to euthynai. Rather, this exception protected all Athenians apart from the stated magistrates, with the intended result that those ordinary citizens who had participated in the numerous judicial murders of the Thirty would enjoy immunity from liability; the safeguards of the Amnesty thus extended to those who had denounced and thereby procured the execution of their fellow citizens and to the members of the Council of 500, who had arguably acted under duress in sentencing people to death (see chapter 7). A passage in Isocrates’ Against Callimachus confirms the Amnesty’s protection of informers, stating that “the terms of reconciliation explicitly absolve of responsibility those who informed against people or property or did anything else of the sort” (tw'n me;n sunqhkw'n diarrhvdhn ajfieisw'n tou;~ ejndeivxanta~ h] fhvnanta~ h] tw'n a[llwn ti tw'n toiouvtwn pravxanta~, Isoc. 18.20).25 What would the motive for such protection be? Immediately after the enactment of the Amnesty of 403, a commission of lawgivers elected by the people found that large numbers of Athenians were liable to prosecution under the laws of Solon ning and the end of the letter sequence on the papyrus, Chambers’ reconstruction is preferable to the more commonly adopted aujtovceir (or aujtoceiriva/) e[kteinen h] e[trwsen (e. g., Sandys [1912]; Kenyon [1920]; Mathieu-Haussoullier [1922]). Those who adopt the latter reading commonly interpret the phrase h] e[trwsen as referring to the public action for intentional wounding (graphê traumatos ek pronoias): e. g., Sandys (1912) 152; Loening (1987) 40; Wolpert (2002b) 32. Even if this reading is correct, though, the distinction may lie not between killing and wounding but between the immediate death and mortal wounding of the victim. 24 Loening (1987) 40; Wolpert (2002b) 33. 25 I take ejndeivknumi here as meaning generally “to denounce (a person)” (cf. LSJ9 s. v. I.2), as distinct from faivnw “to denounce (a thing)” (LSJ9 s. v. A.I.4; cf. the Athenian legal procedure called phasis [Harrison (1968–71) 2.218–21; Todd (1993) 119]), and thus synonymous with mhnuvw, the verb commonly employed for informing on a person; but see below (p. 145) on the limitations imposed by the Amnesty on endeixis in the technical sense. My interpretation of this passage therefore differs from those of van Hook (1945) 267 and Mirhady in Mirhady-Too (2000) 102 with n. 17.

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and Draco for acts committed under the Thirty (Andoc. 1.81–82: below, pp. 146– 47). At least with regard to the laws of Draco, Andocides must have his chronology slightly confused, since the Amnesty drastically reduced the number of Athenians liable to prosecution for homicide; it is more probable that the realization that numerous Athenians faced trials for killings committed during the oligarchy antedated the Amnesty and helped to motivate it. The Amnesty shielded the mass of citizens from legal reprisals for the deaths caused by the Thirty not because the Athenians wished to see the guilty go free, but rather because they wished to encourage a true reconciliation between former supporters and opponents of the Thirty and, on a practical level, because (among other factors: see below, p. 148) they wanted to prevent their courts from being backlogged for the foreseeable future.26 The spirit of reconciliation evident in the Amnesty also appears in the oaths sworn by the Athenians after the civil war. Two of these oaths are partially quoted by Andocides in his oration On the Mysteries, which he delivered in 400 or 399, only five years after the reign of the Thirty. The oath taken by all Athenian citizens included the following promise: kai; ouj mnhsikakhvsw tw'n politw'n oujdeni; plh;n tw'n triavkonta 〈kai; tw'n devka〉 kai; tw'n e{ndeka: oude; touvtwn o}~ a]n ejqevlh/ eujquvna~ didovnai th'~ ajrch'~ h|~ h\rxen. And I will bear no malice against any citizen except the Thirty and the Eleven, nor even against whoever of these is willing to submit to a review of his conduct in the office he held. (Andoc. 1.90)

As Edwin Carawan notes,27 we should not interpret the disclaimer “I will bear no malice” (ouj mnhsikakhvsw) as being equivalent to “I will not pursue legal action.” Mnêsikakein, literally “to remember wrongs,” has a broader meaning and implies a renunciation of retaliatory action, whether in the courts or elsewhere;28 and therefore, by swearing the oath mê mnêsikakein, Athenians solemnly proclaimed that 26 Carawan (1998) 127. We should bear in mind that, while the trial proper was concluded within a day, a dikê phonou actually occupied four months: three preliminary hearings (prodikasiai) in successive months were followed by the trial in the fourth month (above, p. 74). In addition, only one court (the Areopagus) heard accusations of the intentional killing of an Athenian citizen; only one court (the Palladion) heard accusations of the intentional killing of a non-citizen; and one person, the basileus, superintended the entire system of homicide courts and presided over all prodikasiai for homicide. 27 Carawan (1998) 128–33. 28 Carawan (ibid.) argues against the traditional equation of mnêsikakein with retributive litigation and offers in its stead a distinction between mnêsikakein and legal action; e. g., (p. 130) “...the natural implication of the oath mï mnïsikakein was not that a litigant was prohibited from taking partisan claims to court, but that he could not in good conscience resort to out-of-court remedies in violation of specific covenants.” While Carawan has convincingly displayed that the meaning of mnêsikakein should not be limited to litigation, I believe that he goes too far in distancing mnêsikakein from litigation. Andocides quotes a section of the oath sworn by jurors in the dikastêria after the democratic restoration that runs, kai; ouj mnhsikakhvsw oujde; a[llw/ peivsomai, yhfiou'mai de; kata; tou;~ keimevnou~ novmou~ (1.91); clearly here the jurors are not renouncing out-of-court vengeance but swearing not to let remembrance of past wrongs influence their votes in court: “I will not remember past wrongs, nor will I be persuaded by another to do so” is opposed to “but I will vote in accordance with the established laws.” The Athenians,

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they were relinquishing their claims on retribution.29 In some instances, however, the Athenians would signally fail to live up to their oath, despite the glowing optimism of Xenophon30 and the author of the Ath. Pol.31 Andocides also quotes from the amended bouleutic oath sworn annually by incoming members of the Council of 500 the clause kai; ouj devxomai e[ndeixin oujde; ajpagwgh;n e{neka tw'n provteron gegenhmevnwn, plh;n tw'n fugovntwn: “And I will not accept an endeixis or apagôgê for things that happened in the past, except against exiles” (Andoc. 1.91). While it has been suggested that the “exiles” mentioned in the oath should be identified as those former oligarchs who fled Attica after the democracy reabsorbed Eleusis in 401/0,32 the fact that the “exiles” are not further specified or explained argues for a more inclusive reading. The Council could not accept an endeixis or apagôgê plh;n tw'n fugovntwn: this group included not only former oligarchs who had left Attica for political reasons, fearing reprisals by the democracy, but also men in exile for other reasons, including the commission of homicide.33 As regards the homicide law, this means that convicted killers under sentence of exile, as well as homicide defendants who had fled Attica rather than submitting to court judgment, could be prosecuted by endeixis or apagôgê to the Council if they returned to Attica in violation of their banishment. That is, of the three types of endeixis-apagôgê available in connection with homicide (above, p. 129 n. 60), the Council of 500 was entitled to accept only one: it could admit an endeixis and/or an apagôgê against a convicted killer who violated his terms of exile, but not against an accused killer who violated the restrictions on his movement within Attica or against a suspected killer. This limitation on the Council’s acceptance of endeixeis and apagôgai suggests two conclusions regarding the treatment of homicide under the Amnesty of 403. The first is that the Athenians imposed a general restriction on the endeixis and apagôgê of individuals accused of homicides committed under the Thirty, which was reflected in the bouleutic oath but not limited to the activities permitted to the Council of 500. To counter the possible objection that the bouleutic oath contains

29 30

31

32 33

therefore, used mnêsikakein as a catch-all term for retribution, including (but not limited to) litigation. Cf. Carawan (1998) 131: “The most immediate and self-evident intent of the oath mï mnïsikakein was to renounce this mechanism of vendetta.” Xen. Hell. 2.4.43: “And having sworn oaths that they would not remember past wrongs, still now they live together as citizens, and the people abides by its oaths” (kai; ojmovsante~ o{rkou~ h] mh;n mh; mnhsikakei'n, e[ti kai; nu'n oJmou' te politeuvontai kai; toi'~ o{rkoi~ ejmmevnei oJ dh'mo~). [Arist.] Ath. Pol. 40.2: following the execution of a democrat who returned from exile and began to “remember past wrongs” (mnhsikakei'n) in violation of his oath, “no one ever remembered past wrongs after that” (oujdei;~ pwvpote u{steron ejmnhsikavkhsen). MacDowell (1962) 131. The Patrocleides decree, passed in 405, provides a parallel. This decree reenfranchised Athenians who had lost their citizen rights, excepting only two groups: (1) those who had supported the oligarchy of the Four Hundred in 411 and had subsequently fled Attica; and (2) those in exile for homicide, “slaughters” (sfagai'~), or attempted tyranny (Andoc. 1.77–79 [decretum], with MacDowell [1962] ad loc. and in Gagarin-MacDowell [1998] 121–22).

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no autocheir requirement such as that found in the Ath. Pol.’s treatment of the Amnesty, we may note that endeixis and apagôgê were not limited to homicide, and therefore the autocheir requirement was presumably omitted from the bouleutic oath as not germane to all cases. Moreover, since in the aftermath of the restoration of democracy the Athenians limited apagôgê for homicide to cases in which the accused acted, or was apprehended, ep’ autophôrôi (above, p. 61, and see chapter 7), and thus in this respect the range of application of apagôgê was narrower than that of the dikê phonou, which lacked a similar proviso, it is improbable that apagôgê (and endeixis) would have been left exempt from the autocheir requirement governing dikai phonou. The second conclusion to be drawn from the constraints placed on the jurisdiction of the Council of 500 and stated in the bouleutic oath deals specifically with the Council and its recent history. The Thirty Tyrants, as we have seen, used the Council of 500 as a court of law and through it sentenced numerous Athenians to death; the standard procedure employed for this purpose was apagôgê. In order to distance itself from this bloody memory and ensure that the Council would no longer be used for similar purposes, the restored democracy deprived the Council of jurisdiction over apagôgai and endeixeis, with a few stated exceptions. The Eleven, however, continued to exercise jurisdiction over apagôgai despite their intimate role in the atrocities of the Thirty, because apagôgê had been their traditional bailiwick before the oligarchy. Andocides’ commentary on the Amnesty of 403 and on the democracy’s resumption in the same year of the legal codification begun in 410 but interrupted by the Thirty provides an apt coda to this chapter, since the orator sheds light on several crucial aspects of the Athenian mindset regarding the reconciliation between oligarchs and democrats in general, and on the form and perception of Athenian homicide law in the aftermath of the Thirty in specific. In his oration On the Mysteries, Andocides presents to his jury this account of the restoration of the democracy: ejpeidh; d∆ ejpanhvlqete ejk Peiraievw~, genovmenon ejf∆ uJmi'n timwrei'sqai, e[gnwte eja'n ta; gegenhmevna, kai; peri; pleivono~ ejpoihvsasqe swv/zein th;n povlin h] ta;~ ijdiva~ timwriva~, kai; e[doxe mh; mnhsikakei'n ajllhvloi~ tw'n gegenhmevnwn. dovxanta de; uJmi'n tau'ta, ei{lesqe a[ndra~ ei[kosi: touvtou~ de; ejpimelei'sqai th'~ povlew~, e{w~ a[lloi novmoi teqei'en: tevw~ de; crh'sqai toi'~ Sovlwno~ novmoi~ kai; toi'~ Dravkonto~ qesmoi'~. ejpeidh; de; boulhvn te ajpeklhrwvsate nomoqevta~ te ei{lesqe, eu{riskon tw'n novmwn tw'n te Sovlwno~ kai; tou' Dravkonto~ pollou;~ o[nta~ oi|~ polloi; tw'n politw'n e[nocoi h\san tw'n provteron e{neka genomevnwn. ejkklhsivan poihvsante~ ejbouleuvsasqe peri; aujtw'n, kai; ejyhfivsasqe, dokimavsante~ pavnta~ tou;~ novmou~, ei[t∆ ajnagravyai ejn th'/ stoa'/ touvtou~ tw'n novmwn oi} a]n dokimasqw'si. When you returned from Peiraeus, although it was in your power to exact vengeance, you decided to let the past be; you considered the preservation of the city more important than private acts of vengeance, and you resolved not to bear malice against each other for what had happened. Having made this resolution, you chose twenty men. These men were to take charge of the city until additional laws could be passed. In the meantime, the laws of Solon and the ordinances of Draco were to be used. When, however, you allotted a Council [of 500] and chose lawgivers (nomothetai),34 they found that there were many of Solon’s and Draco’s laws under which numerous citizens were liable on account of what had happened previously. You held an assembly 34 On the relationship between these nomothetai and the anagrapheis and syngrapheis see especially Rhodes (1991).

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and deliberated on these matters, and you voted to examine all the laws and then inscribe (anagrapsai) in the [Royal] Stoa whichever of the laws passed examination. (Andoc. 1.81–82)

Andocides then quotes the relevant decree, moved by Teisamenus (PA 13443): “Edoxe tw'/ dhvmw/, Teisameno;~ ei\pe: politeuvesqai ∆Aqhnaivou~ kata; ta; pavtria, novmoi~ de; crh'sqai toi'~ Sovlwno~ kai; mevtroi~ kai; staqmoi'~, crh'sqai de; kai; toi'~ Dravkonto~ qesmoi'~, oi|sper ejcrwvmeqa ejn tw'/ provsqen crovnw/. oJpovswn d∆ a]n prosdevh/, hJrhmevnoi nomoqevtai uJpo; th'~ boulh'~ ajnagrafevnta~ ejn sanivsin ejktiqevntwn pro;~ tou;~ ejpwnuvmou~ skopei'n tw'/ boulomevnw/, kai; paradidovntwn tai'~ ajrcai'~ ejn tw'/de tw'/ mhniv. tou;~ de; paradidomevnou~ novmou~ dokimasavtw provteron hJ boulh; kai; oiJ nomoqevtai oiJ pentakovsioi, ou}~ oiJ dhmovtai ei{lonto, ejpeida;n ojmwmovkwsin: ejxei'nai de; kai; ijdiwvth/ tw'/ boulomevnw/ eijsiovnti eij~ th;n boulh;n sumbouleuvein o{ ti a]n ajgaqo;n e[ch/ peri; tw'n novmwn. ejpeida;n de; teqw'sin oiJ novmoi, ejpimeleivsqw hJ boulh; hJ ejx ∆Areivou pavgou tw'n novmwn, o{pw~ a]n aiJ ajrcai; toi'~ keimevnoi~ novmoi~ crw'ntai. tou;~ de; kuroumevnou~ tw'n novmwn ajnagravfein eij~ to;n toi'con, i{na per provteron ajnegravfhsan, skopei'n tw'/ boulomevnw/. Resolved by the people; Teisamenus made the motion. The Athenians shall govern themselves according to their ancestral customs; they shall use the laws of Solon and his measures and weights, and they shall also use the ordinances of Draco, which we used in previous times. As for whatever laws are required in addition, lawgivers (nomothetai) chosen by the Council shall inscribe (anagraphentas) them on boards and display them by the Eponymous Heroes for inspection by anyone who wishes, and they shall hand them over to the authorities within this month. First the Council and the 500 lawgivers (nomothetai) chosen by their demesmen shall examine the laws handed over to them, after they have sworn their oath; also, any willing private citizen shall be allowed to come before the Council and offer any good advice he has concerning the laws. When the laws are passed, the Council of the Areopagus shall oversee the laws, to make sure that the authorities use the established laws. Those of the laws that are ratified shall be inscribed (anagraphein) on the wall where they were inscribed (anegraphêsan) previously, for inspection by anyone who wishes. (§§ 83–84 [decretum])

The Athenians carried out the terms of the Teisamenus decree and inscribed the ratified laws in the Royal Stoa; once this was complete, they passed new legislation banning the use of unwritten laws, subordinating decrees of the Council and of the people (psêphismata) to laws (nomoi), confirming the verdicts of courts and arbitrators rendered under the democracy, and affirming that they would employ their laws, both the traditional and the new, from the archonship of Eucleides (403/2) on (§§ 85–87). Andocides presents the Amnesty of 403 as an alternative to vengeance: although the victorious democrats could have taken the opportunity to punish their defeated oligarchic adversaries, they privileged the security of the state over their own personal desires for revenge. Behind this apparently altruistic statement lies a harsh reality that confronted the Athenian democrats in 403. In the immediate aftermath of the civil war, the security of the state was no mere abstraction. Less than a year previously, Sparta had defeated democratic Athens in the Peloponnesian War, imposing peace terms that left the Athenians both humbled and hobbled: they were compelled to dismantle the fortification walls of the Peiraeus and the Long Walls linking the Peiraeus and Phaleron to Athens, to surrender their empire and all but twelve naval vessels, to restore their exiles, and to accept membership in the Peloponnesian League and follow Spartan policy (Xen. Hell. 2.2.20; Plut. Lysander 14.8; Andoc. 3.11–12). The combination of the decimation of the Athenian fleet and the destruction of the land fortifications connecting the city of Athens to its military

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and commercial harbors left Athens defenseless, as the Spartans had intended. With the Athenians thus bereft of their “wooden wall” (Hdt. 7.141–43), the navy that had catapulted them to prominence in the Greek world after the Persian Wars and had allowed them to hold out against the Peloponnesian League for twenty-seven years, the Spartans could enforce their desires at will. They lost no time in doing so, interfering in Athenian domestic affairs by procuring the appointment of the Thirty Tyrants, a puppet government viewed by Sparta as an insurance policy against democratic resurgence; Isocrates accordingly describes the Spartans as having been masters of Athens (despovta~ hJmw'n o[nta~) under the tyrants (7.65). Although Sparta dispatched a garrison of 700 men to protect the Thirty, it opted against intervening actively in the subsequent civil war by committing additional troops to Attica; presumably the Spartans did not object to Athens’ weakening itself even further by expending manpower and resources in internal power struggles. This strategy worked as long as the Thirty remained in control of the city. But after the ouster of the Thirty, with momentum clearly swinging back in the direction of democracy, Sparta moved to contain the situation in Athens before it got out of hand, and so imposed the peace that featured among its terms the Amnesty of 403. Sparta’s interests now required the protection of the Athenian oligarchs, natural and demonstrated Spartan sympathizers, who had unexpectedly met defeat at the hands of the democrats they had exiled; therefore, even in their hour of triumph, the Athenian democrats had to temper their elation with the consideration that Sparta might easily intervene again to their detriment. With Attica ravaged by civil war and hundreds of Athenians dead at the hands of their countrymen, Athens was now in an even weaker position to confront Sparta than it had been at the end of the Peloponnesian War. The choice for the democrats in dealing with the defeated oligarchs lay not simply between vengeance and magnanimity, but between vengeance and the attendant high probability of a Spartan reprisal and magnanimity and the possibility of being left alone. With these practical considerations in mind, the Athenians enacted the Amnesty of 403 with the goal of preserving the democracy they had just reinstated. This factor must be taken into consideration alongside the inducements mentioned above (p. 144); namely, the prevention of a second round of civil war fought in the Athenian courts and the promotion of a genuine reconciliation between oligarchs and democrats. The force of this negative incentive – fear of Spartan retaliation and further constitutional interference – is probably best demonstrated by the Amnesty’s fragility. Shortly after the promulgation of the Amnesty, when the Athenians were still anxious to avert the imminent threat of Spartan intervention, the influential politician Archinus (PA 2526) arrested by apagôgê a democrat who had violated the Amnesty and persuaded the Council of 500 to execute him without due process, “telling them that they would now demonstrate whether they wished to preserve the democracy and abide by their oaths” (levgwn o{ti nu'n deivxousin eij bouvlontai th;n dhmokrativan swv/zein kai; toi'~ o{rkoi~ ejmmevnein, [Arist.] Ath. Pol. 40.2).35 This 35 On the procedure used in this case see Rhodes (1993) 477–78; Sandys (1912) 154–55; Hansen (1976) 126–27; Carawan (1984) 116–17.

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incident must have followed very quickly upon the passage of the Amnesty,36 since later in 403 (presumably at the beginning of the civil year 403/2) the Council would swear for the first time in its annual oath not to accept apagôgai against anyone except exiles (above, p. 145). According to the Ath. Pol., Archinus told the Council that execution of the defendant was crucial to the preservation of the democracy (eij bouvlontai th;n dhmokrativan swv/zein) and equated the preservation of the democracy with maintenance of the Amnesty; his statement thus represents a more pointed version of Andocides’ observation that the Athenians enacted the Amnesty for “the preservation of the city” (swv/zein th;n povlin). Archinus’ argument before the Council of 500 and its result show the lengths to which the Athenians were willing to go to avoid risking the forced imposition of a third oligarchic regime in less than a decade. Thanks to Archinus and the Council of 500, this anonymous Athenian democrat fared under the restored democracy exactly as he would have under the Thirty: he was arrested by apagôgê, haled before the Council, and executed. While the irony must have been evident and presumably left a bad taste in some mouths, Archinus persuaded the councillors that, in scapegoating the defendant, they were acting for the greater good of Athens. Publicly making an example of a democrat who violated the Amnesty was designed to reassure the Spartans that the Athenian democracy would protect Sparta’s friends in Athens, and thus to lessen the likelihood of renewed Spartan military intervention and constitutional upheaval. Realizing, however, that one death might not sufficiently deter violations of the Amnesty, Archinus soon thereafter (in 403/2) convinced his countrymen to institute a novel legal procedure, paragraphê, whose original function was to forestall prosecutions mounted in breach of the Amnesty.37 These measures illustrate the strictness with which the Athenians initially enforced the Amnesty, as well as their primary motivation for doing so. But as time passed and the Spartan threat receded, Athenian observance of the Amnesty of 403 became much more casual. Xenophon and the Ath. Pol. enthusiastically aver that the Athenians never violated the Amnesty (above, p. 145 notes 30–31), but the record of Attic oratory tells a very different story: we possess fifteen surviving speeches from lawsuits in which individuals’ conduct under the Thirty, and therefore the enforcement of the Amnesty, was a key issue.38 These include two orations of Andocides (1 and 3), four by Isocrates (16, 18, 20, and 21), and nine under the name of Lysias (6 [spurious], 13, 16, 18, 25, 26, 30, 31, and 34: Lysias 12 is a special case, since the tyrant Eratosthenes was excluded from the Amnesty at the time of his trial). To these cases attested in the corpora of the Attic orators we may add the most famous trial in Athenian history. The prosecution of Socrates in 399 was motivated chiefly by the events of 404/3, and specifically by the philosopher’s connection with Critias, the leader of the extremist faction of the Thirty who had been killed in action at Munychia. While the prosecutors formally charged Socrates with impiety (by a graphê asebeias), their indictment (above, p. 86 n. 8) also alleged that Socra36 Cf. Chambers (1990) 321–22. 37 Wolff (1966); Harrison (1968–71) 2.106ff.; Todd (1993) 136–37; Lipsius (1905–15) 846ff. 38 Cf. Wolpert (2002b) 48 with n. 1, 58ff.

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tes had corrupted the youth of Athens39 – a thinly-veiled reference to Critias – and at the trial of Timarchus in 346/5 Aeschines asserted as fact before an Athenian jury that Socrates had been executed “because he was shown to have educated Critias, one of the Thirty who brought down the democracy” (Aeschin. 1.173). Socrates’ trial and execution may therefore be viewed as an even more blatant violation of the spirit of the Amnesty of 403 than the trials of other erstwhile supporters of the tyrants. Socrates had been among the Three Thousand allowed to remain in Athens by the Thirty (Pl. Ap. 32c4–d9). However, as attested by Aeschines and by Xenophon, another former member of the Three Thousand,40 it was not Socrates’ direct participation in the regime of the Thirty that resulted in his trial and conviction, but his perceived indirect contribution to the oligarchy as the former teacher of Critias. The fate of Socrates thus illustrates what could happen to an Athenian merely for associating with key figures in the oligarchy, regardless of his personal conduct under the Thirty. Moreover, not only the accusation brought by Socrates’ prosecutors but also, and more significantly, the conviction verdict rendered by his jury must be weighed against the positive assessments rendered by Xenophon’s Hellenica41 and the Ath. Pol. with regard to Athenian observance of the Amnesty of 403. The willingness shown by the majority of a 501-man jury to share complicity in an understood act of forensic retaliation for the brutalities of the Thirty, in spite of the Amnesty, shows that a broad base of the Athenian citizen body did “remember past wrongs” and was ready to act on that remembrance.42 As in Rome after the Punic Wars, so in Athens, as the Spartan threat receded, internal conflicts that had been suppressed by a supervening danger to the state erupted once the danger had been removed.43 39 “Corrupting the youth” does not correspond clearly to any known offense under Athenian law; this fact, together with the vague wording of the second count of the indictment, presumably shielded Socrates’ prosecutors from possible liability for violating the Amnesty of 403 (see Wolpert [2002b] 65 with n. 52). 40 With the indictment of Socrates cf. Xen. Mem. 1.2.12, 16, 24 with Wolpert (2002b) 63. 41 The discernible inconsistency between Xenophon’s explicit assessment of the Amnesty of 403 in the Hellenica and that implied by the fate of Socrates in the Memorabilia may be attributable to the difference in the intended readership of the respective works. In the Hellenica, aimed at a panhellenic audience, Xenophon shies from portraying his countrymen in a bad light – we should note that, while Xenophon himself was exiled after the battle of Coroneia in 394, his sons remained Athenian citizens – while in the Memorabilia, directed at a primarily Athenian readership (as the overwhelming majority of contemporary Greeks outside Athens would not have heard of Socrates, much less cared what happened to him), Xenophon can speak more candidly. 42 Socrates was convicted by a vote of 280 to 221: see Pl. Ap. 36a5–6. That the jury voted for the death penalty by a greater margin (340–161: Diog. Laert. 2.42) than they voted for conviction is not as significant, since the swing in the penalty vote arguably resulted from Socrates’ proposal that he be awarded free meals at the Prytaneion (Pl. Ap. 36d4–e3) and his insincere offer to pay a nominal fine, augmented at the last moment by contributions volunteered by his friends (Pl. Ap. 38b1–9). 43 Cf. Lys. 13.78 (below, p. 209), where Lysias has Anytus, a leader of the democratic resistance (and future prosecutor of Socrates), predict just such a development. While Lysias may simply have invented Anytus’ speech in order to bolster the case of his client (who is, after all, seeking

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The passages of Andocides quoted above also illuminate his contemporaries’ conception of their homicide laws. Before the Revolution of 411, Antiphon had characterized Athenian homicide law as having “always been the same regarding the same things.” This statement did not mean that the Athenians had never amended Draco’s law, but simply that no part of Draco’s law had ever been expressly rescinded and superseded. Thus, despite the development and expansion of Athenian homicide law in the centuries following Draco, the ordinances of the first lawgiver remained definitive, and so Antiphon could justifiably assert the permanence and stability of the homicide laws, as well as the reverence they received from the Athenian people: they were “the best and most hallowed,” as well as the oldest, of Athenian laws (above, p. 135). One prominent amendment of Athenian homicide law by addition occurred in Antiphon’s time; in fact, in one of Antiphon’s own cases: this is the use of endeixis and apagôgê to prosecute suspected killers, attested for the first time in Antiphon 5. Further developments came at the end of the century: in contrast to the Revolution of 411, which occasioned no alterations of the homicide law either during the regimes of the Four Hundred and the Five Thousand or in the systematic codification that was one of the first impulses of the restored democracy, the regime of the Thirty Tyrants and its aftermath witnessed significant changes to the law of homicide. Accordingly, in evaluating Andocides’ commentary at 1.81–82 and the contents of the Teisamenus decree (§§ 83–84), we must remember that the Amnesty of 403 halved Draco’s definition of liability, effectively rescinding the h] bouleuvsanta clause of Draco’s law (IG I3 104.12–13), with respect to killings committed under the Thirty. Although restricted to the period of eight months when the tyrants held sway, this narrowing of liability – which theoretically rendered the great majority of Athenians immune from prosecution for the great majority of homicides committed – represented the most radical alteration of Athenian homicide law since Draco’s codification. Nonetheless, both Andocides’ own words and the Teisamenus decree ignore the effect of the Amnesty of 403 on Athenian homicide law. According to Andocides, after the Amnesty of 403 was put into effect, the Athenians elected twenty men to govern the city pending the enactment of supplementary legislation; in the meantime they were to employ the laws of Solon and Draco. By omitting from his account the severe limitation placed on homicide liability by the Amnesty, the orator implies that Draco’s law remained in full effect. In similar fashion, the opening lines of the Teisamenus decree not only disregard the Amnesty but positively affirm the unaltered continuity of the homicide law: “The Athenians shall govern themselves according to their ancestral customs; they shall use the laws of Solon and his measures and weights, and they shall also use the ordinances of Draco, which we used in previous times.” Again, “the ordinances of Draco” tout court overlooks the Amnesty’s suspension of liability for conspiracy and carries the false implication satisfaction for the death of a kinsman under the Thirty), and Andocides (1.81: above, p. 146) claims that the potential for revenge, which he acknowledges, was never actualized, the rash of legislation against former supporters of the oligarchy in the years following 404/3 shows that the statement attributed to Anytus illustrates the mindset of a significant proportion of Athenian democrats.

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that all of Draco’s homicide law remains in force. The Teisamenus decree thus engages in a wishful revisionism whereby the only divergence from “ancestral custom” in Athenian law may have occurred under the Thirty – and such a reading depends on a pregnant interpretation of the phrase “which we used in previous times”: significantly, Teisamenus did not write “which we have always used.” The representations of Draco’s law by Andocides and in the Teisamenus decree confirm a fortiori the point of view expressed by Antiphon; namely, that the Athenians deliberately chose to privilege the continuity of Draco’s law over subsequent procedural additions, such as the extension of apagôgê to suspected killers, and even (in the case of the Amnesty of 403) over the temporary annullment of one of Draco’s fundamental provisions. This doctrine of the continuity of Athenian homicide law survived well into the fourth century. [Demosthenes] 47, Against Euergus and Mnesibulus (post 358/7), discussed in detail in the previous chapter, demonstrates its enduring influence: seeking to acquaint himself with the homicide law after the killing of his former nurse, the trierarch consults “the law of Draco on the stele” (§ 71) and no others, thereby ignoring the remedy provided by apagôgê. The continuity doctrine is even more evident in Demosthenes’ Against Aristocrates, delivered in 352/1. In this oration, which contains a sustained discussion of the laws on homicide that Aristocrates’ decree allegedly proposes to subvert, Demosthenes expressly attributes all the homicide statutes he cites to Draco (§ 51), conspicuously fails to identify as postDraconian any elements of Athenian homicide law (most prominently the use of apagôgê against suspected killers: § 80),44 and flatly rejects any interruption of Areopagite homicide jurisdiction down to his own day: his contention in § 66 that “no tyrant, no oligarchy, no democracy” has ever removed homicide trials from the Council of the Areopagus patently (and perhaps polemically: see above, p. 140 with n. 18) includes the oligarchy of the Thirty.45

44 Demosthenes discusses apagôgê at the end of his résumé of the Athenian homicide courts as they operated in the mid-fourth century (§§ 65–80: above, pp. 59–60, 128–31). His failure, both here and elsewhere in the speech, to specify any modifications to Athenian homicide law made after Draco’s codification suggests that he believed that all elements of the Athenian treatment of homicide originated with Draco, if not earlier (see the next note). 45 In 23.66 Demosthenes also retrojects the continuity of the Areopagus homicide court into the realm of myth, citing the cases of Poseidon v. Ares and Furies v. Orestes.

CHAPTER 6 LYSIAS 12: PLAYING BY THE RULES As shown in the previous chapter, the Amnesty of 403 shielded almost all Athenians from liability for the majority of killings perpetrated during the regime of the Thirty Tyrants. The Amnesty included all Athenians except the former tyrants themselves and their chief subordinates, and under its terms Athenians could only prosecute homicides committed under the Thirty if they accused the defendant of killing with his own hand. Despite these restrictions, some Athenian litigants succeeded in bringing to court accusations of killings carried out while the Thirty were in power. Within about five years after the restoration of the democracy, both Lysias 12 (Against Eratosthenes) and Lysias 13 (Against Agoratus) were delivered by Athenian prosecutors in cases where a homicide committed during the recent oligarchy was the principal issue. Early in the reign of the Thirty, according to Lysias, two of the tyrants, Theognis and Peison, conceived a plot to bolster the financial position of their nascent regime by arresting ten metics, including Lysias and his brother Polemarchus, as enemies of the state and confiscating their property. Lysias was arrested but managed to escape his captors, fleeing to the home of his friend Archeneus in the Peiraeus. From his hiding-place Lysias dispatched his host to Athens to find out what had happened to his brother; upon his return Archeneus reported that the tyrant Eratosthenes (PA = APF 5035) had arrested Polemarchus and taken him to jail. The following night, Lysias departed Attica for Megara, learning later that the Thirty had executed Polemarchus by hemlock (Lys. 12.6–17). After the democracy was restored in 403, Lysias accused Eratosthenes of killing Polemarchus, took him to court, and delivered the speech Against Eratosthenes (Lysias 12).1 The verdict in the case is not known.2

THE PROCESS AGAINST ERATOSTHENES The identification of the legal procedure employed by Lysias against Eratosthenes has long been the subject of debate. Much of the discussion revolves around Lysias’ metic status. Pericles had invited Cephalus, the father of Lysias and Polemarchus, to move to Athens from his native Syracuse; although they were metics, not citizens, the family received special privileges, namely isoteleia (exemption from the 1

2

I reject the contention of a minority of scholars that Lysias 12 was never delivered in court (Carawan [1998] 376–77; cf. Todd [2000] 114; Wolpert [2002b] 59); the extraordinary nature of the speech does not suffice to impeach its authenticity. On Lysias’ life and the chronology of events see especially Dover (1968) 28–46. Pace, e. g., Cloché (1915) 327–28.

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metic tax of one drachma per month) and enktêsis gês kai oikias (the right to own real property in Attica).3 While metics were not allowed to vote or to address the Athenian Assembly, scholarly opinion is divided concerning their access to the Athenian courts – a question that is complicated by the fact that Lysias delivered his speech against Eratosthenes in person.4 Several explanations have been offered to account for Lysias’ suo nomine prosecution of Eratosthenes. Commentators have suggested that metics were allowed to speak in court (rather than being represented by their citizen patrons, prostatai) when avenging the death of a relative;5 or that isoteleis “had full privileges before the Athenian courts” whereas ordinary metics did not;6 or that either isoteleis or all metics had the right to prosecute at euthynai.7 M. H. Hansen, however, has convincingly demonstrated that metics enjoyed full access to the Athenian courts without the necessity of representation by a prostatês. On the basis of the speeches that survive from lawsuits involving one or more metics, Hansen concludes that “[p]rivate suits brought by metics or against metics came before the polemarch, but public prosecutions were handled by the usual magistrates, whether the metic was accuser or accused, and the surviving speeches show that metics appeared in all courts in person or had a friend, not their prostates, to aid them.”8 Since metics could and did plead their own cases in the Athenian courts, the fact that Lysias represented himself in his lawsuit against Eratosthenes tells us nothing about the charge or the venue. There are three possibilities: (1) Lysias charged Eratosthenes with intentional homicide in a dikê phonou; (2) Lysias charged Eratosthenes with homicide by means of endeixis and/or apagôgê; or (3) Lysias prosecuted Eratosthenes at the euthynai that Eratosthenes had to undergo in order to qualify for the Amnesty of 403. 3

4

5 6 7 8

[Plut.] Mor. 836a (Vit. X Orat., Lysias) states that Lysias became isotelês (as a sort of consolation prize?) after being deprived of the citizenship he enjoyed for a brief time after the restoration of the democracy. However, we know that the family’s privilege of enktêsis predates the reign of the Thirty Tyrants, since Lysias 12.18–19 informs us that they had owned three houses in Athens and Peiraeus, as well as a shield workshop. I therefore assume that the family’s isoteleia too predates the oligarchy: perhaps Pericles offered Cephalus both privileges as incentives to move to Athens. Lys. 12.3ff. The position that Lysias prosecuted Eratosthenes during his brief stint as an Athenian citizen is untenable. After the return of the democrats but before the government was fully constituted (ejp∆ ajnarciva~ th'~ pro; Eujkleivdou), Thrasybulus moved a decree granting Lysias citizenship. Archinus then brought a graphê paranomôn against the Thrasybulus decree on the grounds that it was unconstitutional since it had not passed the Council of 500 before being put to the Assembly; Archinus won his case and thereby secured the annulment of the decree ([Plut.] Mor. 835f–836a [Vit. X Orat., Lysias]). The time between passage and annulment of the decree will not have sufficed for Lysias to prepare and conduct his prosecution of Eratosthenes (cf. Dobson [1919] 77: “he lost his privilege immediately”). Further, the timing of the Thrasybulus decree and of the euthynai offered to former members of the Thirty do not coincide: the former was moved before Eucleides took office, while the latter took place during his archonship ([Arist.] Ath. Pol. 39.1). Jebb (1875) 1.263 n. 1; cf. Rauchenstein-Fuhr (1963) 13. Adams (1905) 44 n. 4. Blass (1887–98) 1.542; Morgan (1895) 28. Hansen (1991) 118 with notes 409–413; cf. Whitehead (1977) 90.

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The second scenario is the easiest to dismiss. Nothing in Lysias’ speech suggests that an apagôgê has taken place, and in fact statements such as “they [i. e., Eratosthenes and his supporters] have sunk to such depths of audacity that they have come [to court] to defend themselves” (§ 22) and “he [Eratosthenes] has come to defend himself” (§ 84), implying voluntary participation by Eratosthenes, would make little sense if Eratosthenes had been haled into court by apagôgê.9 We may therefore narrow the field to two possibilities, and several factors indicate that Lysias prosecuted Eratosthenes not by dikê phonou but at Eratosthenes’ euthynai. The reader of Lysias 12 cannot fail to observe that Lysias devotes comparatively few words to the killing of his brother and concentrates the majority of his energies on a general indictment of the Thirty. Lysias does not mention Polemarchus’ death in his prooemium (§§ 1–3) and does not name the defendant, Eratosthenes, until § 16; the orator spends more time attacking the character of Theramenes (§§ 62–78), who had little or nothing to do with his brother’s death, than accusing Eratosthenes of killing Polemarchus.10 Throughout his prosecution, Lysias speaks of “the defendants” in the plural, as though he has all thirty tyrants, not just Eratosthenes, in the docket.11 The piece of evidence that decides the question of procedure in favor of Eratosthenes’ euthynai appears at § 37, where Lysias defines his burden of proof by telling the jury, “I think I have to prosecute my case until the defendant is deemed to have committed acts meriting death” (mevcri ga;r touvtou nomivzw crh'nai kathgorei'n, e{w~ a]n qanavtou dovxh/ tw'/ feuvgonti a[xia ei[rgasqai). Previous commentators have noted that this passage supports an euthynai trial over a dikê phonou, but they have often been mistaken as to the reason. Dorjahn, for example, held that “[t]his remark points unmistakably to an audit trial, for in a murder case the penalty was fixed by law, and there was no reason to suggest the death penalty in view of the utter lack of an alternative.”12 Jebb, too, realized that § 37 implies that “the question was what degree of punishment, if any, [Eratosthenes] was to suffer,” but as an alternative he presumed a homicide trial at the Areopagus.13 But since the victim, Polemarchus, was a metic, a dikê phonou for his killing would have been tried at the Palladion, 9 Pace von Wilamowitz-Moellendorff (1893) 219–21 and Dorjahn (1946) 40, these statements do not rule out a dikê phonou, since in a dikê phonou the defendant had the right to abandon his case and withdraw into voluntary exile at any point before commencing his second speech, and therefore dikê phonou defendants could be said to be in court of their own free will. 10 Noting this shift in emphasis, Blass (1887–98) 1.547 comments that “while the first part of the speech essentially has the character of a private speech, the second part is delivered in the style of a public accusation.” 11 E. g., § 2: “in this case we have to ask the defendants (tw'n feugovntwn) what enmity they felt toward the city that gave them the audacity to commit such grave offenses against it.” While Athenian litigants commonly refer to their adversaries in the plural, meaning “the defendant and his family” or “the defendant and his synêgoroi (advocates),” throughout Lysias 12 the context makes it clear that Lysias means “the defendant Eratosthenes and the rest of the Thirty.” 12 Dorjahn (1946) 40 (emphasis mine). 13 Jebb (1875) 1.263, 261. Cf. Blass (1887–98) 1.542, who ruled out a homicide trial, “in which the penalty was fixed.”

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and the penalty for Eratosthenes upon conviction would be exile, not death.14 The very mention of the death penalty, therefore, proves that Eratosthenes was not tried by dikê phonou, since under that procedure he would not be liable to capital punishment. Accordingly, we must conclude that Lysias prosecuted Eratosthenes at the euthynai offered to former tyrants by the Amnesty of 403, bringing as the nominal charge the killing of Polemarchus and demanding the death penalty; this scenario is corroborated by the language used by Lysias in § 37 implying an assessable lawsuit (agôn timêtos), in which, with no penalty fixed by law, a jury that convicted its defendant then chose between penalties proposed by the prosecution and defense.15

PRIVATE ENMITY IN LYSIAS 12 Lysias’ speech against Eratosthenes resounds throughout with the language of echthra. In his effort to secure a conviction, the orator first endeavors to establish the boundaries of enmity so that the entire Athenian citizen body is arrayed with him against the defendant and the rest of the Thirty. Lysias then argues that the tyrants’ motives for and conduct of their hostilities against the Athenian people violated the standards for proper pursuit of echthra, which their adversaries have consistently obeyed, and in accordance with which he now seeks vengeance for his brother’s death.

The boundaries of enmity At the beginning of his speech, Lysias undertakes the task of drawing the boundaries of the enmity that has motivated his prosecution of Eratosthenes, and he point14 [Arist.] Ath. Pol. 57.3; Dem. 23.71–73, 89; above, pp. 59–60. With regard to penalties, the sources (e. g. Dem. 21.43, 23.72) admittedly tend to draw the distinction between intentional homicide, punishable by death, and unintentional homicide, punishable by exile. However, absent specific indications to the contrary, the authors are presumably positing a killing with a citizen victim. Further, as MacDowell (1963) 126 observes, “occasionally we hear of a foreigner’s being granted the privilege that, if anyone killed him, the killer was to suffer the same penalty as the killer of an Athenian citizen” (see, e. g., Dem. 23.89). Killers of metics, therefore, must normally have received less severe punishment than killers of Athenian citizens; the logical conclusion is that a guilty verdict at the Palladion court resulted in exile, whether the defendant was convicted of killing a citizen unintentionally or of killing a metic, regardless of intent. The preserved fragments of Draco’s law do not address the killing of metics, and in fact Draco may not have considered metics as a group in drafting his homicide law, since the number of metics in seventh-century Athens will have been negligible. If this is the case, the creation of rules governing the prosecution and punishment of homicides with metic victims represents another instance of the development of Athenian homicide law by accretion and without disturbance of any of Draco’s original provisions (see above, pp. 135–36). 15 The prosecutor at an euthynai trial had to specify in writing both the offense charged against the defendant and the penalty he sought ([Arist.] Ath. Pol. 48.4; Harrison [1968–71] 2.211 n. 1); euthynai trials thus qualified as agônes timêtoi. See Harpo. s. v. ajtivmhto~ ajgw;n kai; timhtov~; Lipsius (1905–15) 105ff., 248ff.; Todd (1993) 133–34; Roberts (1982) 17–18, 24.

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edly casts the defendant and the rest of the Thirty as echthroi of the city as well as of himself:16 provteron...e[dei th;n e[cqran tou;~ kathgorou'nta~ ejpidei'xai, h{ti~ ei[h pro;~ tou;~ feuvgonta~: nuni; de; para; tw'n feugovntwn crh; punqavnesqai h{ti~ h\n aujtoi'~ pro;~ th;n povlin e[cqra, ajnq∆ o{tou toiau'ta ejtovlmhsan eij~ aujth;n ejxamartavnein. ouj mevntoi wJ~ oujk e[cwn oijkeiva~ e[cqra~ kai; sumfora;~ tou;~ lovgou~ poiou'mai, ajll∆ wJ~ a{pasi pollh'~ ajfqoniva~ ou[sh~ uJpe;r tw'n ijdivwn h] uJpe;r tw'n dhmosivwn ojrgivzesqai. In the past...prosecutors had to disclose any existing enmity (echthran) they felt toward their defendants. In this case, however, we have to ask the defendants what enmity (echthra) they felt against the city that gave them the audacity to commit such grave offenses against it. Now, I say this not because I do not carry my own enmity (oikeias echthras) and misfortune, but because all of us possess a great abundance of reasons for anger, for our own sakes or for the city’s. (§ 2)

In this passage Lysias employs the loaded term echthra no fewer than three times: first for the state of mind prosecutors bring to bear against their defendants, again for the attitude borne by the Thirty against Athens, and finally for his own feelings about the Thirty. Athenian prosecutors commonly informed their juries of preexisting enmity against their defendants in order to forestall suspicions of sycophancy: pursuing enmity in court was an honorable course of action, while extorting money from an individual, absent prior enmity, was not (above, p. 20).17 The present case, however, is a novelty: while Lysias, the prosecutor, will explain the personal enmity between himself and Eratosthenes, which was activated by Eratosthenes’ involvement in the death of Lysias’ brother, the activities of the Thirty while they were in power suggest that they considered themselves to be at enmity with the city of Athens as a whole. Thus Lysias conflates the personal and specific echthra between himself and Eratosthenes with a general dispute pursued by the Thirty (including Eratosthenes) against the Athenian people (including not only the metic Lysias but also, and crucially, every member of the citizen jury). Lysias’ portrayal of the killing of Eratosthenes as symptomatic of broad enmity between the Thirty and Athens rather than as an isolated incident has a practical aim: if Lysias succeeds in enlisting the jurors as allies against Eratosthenes, he will assure himself of a conviction. This is the force of the concluding sentence of § 2: Lysias admits his personal motive for prosecuting Eratosthenes – thereby complying with the custom that prosecutors justify their lawsuits by revealing preexisting enmity against their defendants – but subordinates this individual motive to the public desire, both individual and corporate (“for our own sakes or for the city’s”), to exact revenge upon the Thirty. Lysias’ identification of his litigious interests with those of the city of Athens as a whole, and of the jury that represented the city,18 continues throughout the speech. At § 34 he puts the jury in his position – as, no doubt, many jurors who had lost relatives to the Thirty’s proscriptions actually were – by asking, “What would you do if you were Polemarchus’ brothers or sons?” To hammer home his point, Lysias 16 Cf. Bearzot (1997) 94. 17 E. g., [Dem.] 59.1; Rauchenstein-Fuhr (1963) 1.21, citing as examples Dem. 21.77; [Dem.] 59.15; Zakas (1907–10) 1.126. 18 Phillips (2004) 6.

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points out that the jurors themselves are the very people who suffered terribly under the Thirty (§ 35). Moreover, Eratosthenes and his witnesses and synêgoroi (“supporting speakers,” advocates) acted against the interests of the Athenian people not only in 404/3 but during the earlier oligarchy of the Four Hundred (§§ 42–43). Eratosthenes considered the city of Athens his enemy and the enemies of Athens his friends (th;n me;n povlin ejcqra;n ejnovmizen ei\nai, tou;~ d∆ uJmetevrou~ ejcqrou;~ fivlou~, § 51),19 thereby controverting the natural allegiances of any Athenian. The defendant’s hostility toward Athens is confirmed by the company he kept, including Pheidon, one of the Ten appointed to succeed the Thirty after the battle of Munychia, who deserves the jury’s indignation (ojrgivzesqai, echoing § 2) for continuing the war against the men of the Peiraeus rather than stiriving for reconciliation (§§ 54–58); and the Spartan admiral Lysander, who had intimidated the Athenians into adopting the Dracontides decree that created the board of Thirty and who “was most friendly to the oligarchy, most hostile to the city, and especially hated the men of the Peiraeus” (§ 59). The jury should display its gratitude toward the martyrs for democracy by exacting vengeance upon their enemies (para; tw'n ejcqrw'n divkhn labovnte~, § 60). Lysias resumes and expands his condemnation of Eratosthenes by association in a lengthy digression on the career of Theramenes (§§ 62–78). Since Theramenes had been a voice of moderation among the Thirty, opposing the practice of targeting innocent people for their money, and had been executed for his trouble (Xen. Hell. 2.3.15–56: above, p. 141), Lysias expected Eratosthenes to align himself with Theramenes and thereby to distance himself from the opprobrium attaching to the Thirty’s brutal excesses (§ 62). In several respects, the opening sentences of Lysias’ attack on Theramenes constitute a doublet of § 2 and thus a second prooemium to the speech. The orator again equates his cause with that of Athens, requesting that the jurors listen “for my own sake and for the city’s” (uJpevr t∆ ejmautou' kai; th'~ povlew~), and then opens § 64 by proffering a paradox that echoes the statement in § 2 concerning the respective litigants’ declarations of enmity: perievsthken ou\n th'/ povlei toujnantivon h] wJ~ eijko;~ h\n. a[xion me;n ga;r h\n kai; tou;~ fivlou~ tou;~ Qhramevnou~ prosapolwlevnai, plh;n ei[ ti~ ejtuvgcanen ejkeivnw/ tajnantiva pravttwn: nu'n de; oJrw' tav~ te ajpologiva~ eij~ ejkei'non ajnaferomevna~, touv~ t∆ ejkeivnw/ sunovnta~ tima'sqai peirwmevnou~, w{sper pollw'n ajgaqw'n aijtivou ajll∆ ouj megavlwn kakw'n gegenhmevnou. Things have thus turned out for the city to be the opposite of what was to be expected. Theramenes’ philoi ought to have died along with him, unless there happened to be one of them who opposed his policy; but now I see people staking their defenses on him and his associates vying for honors, as though he had been responsible for numerous benefits instead of great evils.

This paradox develops Lysias’ construction of the boundaries of enmity first established by the similar opposition in § 2. Lysias had employed the earlier paradox in order to assert a definition of the antagonists, with himself and the Athenian people on one side and Eratosthenes and the rest of the Thirty on the other. Now he strives to correct those Athenians who have drawn the lines of the dispute improperly, as 19 See Bearzot (1997) 147.

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Eratosthenes and his supporters have done and the Athenians as a people will do unless they exercise care (and, naturally, adopt Lysias’ own viewpoint). As Lysias construes the conflict, the party opposing himself and the city encompasses all of the Thirty, both living (Eratosthenes) and dead (Theramenes). Theramenes gets no credit for being commonly viewed as the least offensive participant on his side of the dispute; his association with the rest of the Thirty trumps any internal friction within the group.20 In order to convince the jury to share his opinion, Lysias portrays the career of Theramenes in the worst possible light, alleging that Theramenes bore chief responsibility for the oligarchy of 411 and then sold out his co-conspirators Antiphon and Archeptolemus, consigning them to their deaths,21 and that Theramenes again acted against Athenian interests in the closing days of the Peloponnesian War by collaborating with Sparta and first deceiving, then forcing his countrymen into accepting humiliating terms of peace (§§ 65– 70).22 In the immediate aftermath of the peace, according to Lysias, Theramenes was no mere participant in the oligarchy but the leading force behind the creation of the Thirty: Theramenes invited Lysander to sail into the Peiraeus with a Spartan fleet in order to cow the Athenian Assembly (§§ 71–72), publicly advertised his cooperation with Lysander while pressuring the assembled citizens into passing the Dracontides decree (§§ 73–74), and personally selected ten of the Thirty (§ 76). This is the Theramenes, “responsible for so many evil and shameful deeds and more, past and recent, small and great,” with whom Eratosthenes and his supporters now position themselves. In so doing, Lysias reiterates, his adversaries define themselves as opponents of the jurors as well: as he tells the jury, Theramenes “did not die for you” but met his end pursuing the same anti-Athenian policies he had manifested since 411, “having twice reduced you to slavery” (§ 78). By thus rejecting the tradition of Theramenes as martyr, which arose soon after he died at the hands of his fellow oligarchs,23 Lysias endeavors to prevent the jurors from aligning themselves on the wrong side of the present and ongoing dispute: while some of them had been forced to do so at the Assembly meeting that appointed and empowered the Thirty, no such compulsion attends their verdict in the present trial (§§ 75, 90–91). Notably, Lysias refrains from discussing Theramenes’ conduct after the Thirty were securely ensconced, thereby omitting Theramenes’ participation in the regime between its establishment and his execution. Unless Lysias’ motive for the omission lies in his stated desire to avoid appearing to prosecute Theramenes rather than Eratosthenes (§ 62), his silence presumably lends credibility to the popular assessment 20 Cf. Lysias’ anticipation of the defense at § 89: “[Eratosthenes and his supporters] say that Eratosthenes has committed the fewest evils of any of the Thirty, and for that reason they think him worthy of saving; but he has committed the most offenses against you [note Lysias’ characterization of the jury as fellow victims of Eratosthenes] of the rest of the Greeks, and for that they do not think he ought to die?” 21 Although Lysias does not mention it, tergiversations such as this earned Theramenes the nickname kothornos, “Buskin” (a shoe worn by actors that fit either foot: Xen. Hell. 2.3.31). 22 For Theramenes’ role in bringing about peace between Athens and Sparta cf. Lys. 13.9ff. (below, pp. 185–86), and see Bearzot (1997). 23 Xenophon’s description of Theramenes’ death (Hell. 2.3.15–56) is the prime example. See, e. g., Adams (1905) 54–56; Frohberger (1882) 48; Masson-Hombert (1924) 48.

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of Theramenes, as represented by Xenophon. In what he does say, however, Lysias deliberately overcompensates for Theramenes’ reputation as a moderate, with the goal of swaying the jury, if not all the way to his own position, at least toward a middle ground between it and the prevailing opinion. Lysias’ delineation of the boundaries of enmity continues after the digression on Theramenes and reaches a crescendo in the epilogos of his speech (§§ 81–100). Immediately after dismissing Theramenes, he recapitulates his view in §§ 79–80, telling the jurors that they now have the opportunity “to exact punishment from the defendant Eratosthenes and his colleagues in power, and not to be stronger than the foe (tw'n polemivwn) in battle but weaker than your enemies (tw'n ejcqrw'n) at the ballot,”24 and encouraging them, as he did in the proem, to respond to the atrocities of the Thirty with anger (ojrgivzesqe)25 directed against Eratosthenes in the form of votes for his conviction. In the epilogue that follows, the orator makes his most developed and concerted effort to fix the boundaries of enmity. He first restates his definition of the parties involved in the dispute, with the city as a whole on one side and Eratosthenes and the rest of the Thirty on the other: “It is not an equal contest between the city and Eratosthenes...the defendants executed innocent men without trial, while you see fit to judge according to the law those who destroyed the city” (§§ 81–82).26 Lysias then identifies the victims of the Thirty as the fathers, sons, and brothers of the jurors, whose desire for revenge is both individual (toi'~ ijdiwvtai~) and public (th'/ povlei), as is his own (cf. § 2). Owing to the loss of their relatives and their property, the jurors themselves are victims of the Thirty (§§ 83–84) and should strike back in proportion to the wrongs they have suffered. Despite its legal impossibility, Lysias rhetorically suggests the application of strict talio: as the Thirty have killed the jurors’ sons (and other relatives), perhaps the jury might approach satisfaction by executing the Thirty and their sons (§ 83). The jury’s vengeance will be not only personal but vicarious, as the men who died under the Thirty can no longer punish their enemies (pevra e[cousi th'~ para; tw'n ejcqrw'n timwriva~, § 88) and rely on their surviving kinsmen, their natural allies, to carry on their retributive interests.27 The members of the jury must show which side of the dispute they are on: by convicting Eratosthenes they will manifest their anger (ojrgizovmenoi) and thereby prove themselves enemies of the Thirty, while if they acquit him, they will align themselves with the Thirty even more firmly than before: “you will not be able to say that you were merely following the Thirty’s orders [under the 24 On the distinction between echthroi and polemioi see above, pp. 15, 91. Here, significantly, they refer to the same people: the Thirty and their supporters, who are no longer polemioi, since the civil war is over, but, as Lysias argues here and in the Against Agoratus (see chapter 7), remain echthroi liable to private vengeance. 25 On the role of anger in prosecutorial rhetoric see Arist. Rhet. 1378a19–b10; 1419b24–26; Carey (1994) 29–31; Allen (2000) 50–59, (2005) 380–85; on its role in this speech and in the Against Agoratus see Bearzot (1997) 86–92. 26 On the allegation that the Thirty executed their victims “without trial” (ajkrivtou~) see above, p. 139 with n. 15. 27 As expressed explicitly by Dionysodorus in his dying injunction (Lys. 13.40–42: above, pp. 66–68 and see chapter 7). On kinship as presumptive grounds for philia see above, pp. 25–29.

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oligarchy], since now no one is forcing you to vote contrary to your judgment.” Whether for or against Eratosthenes, the jury’s verdict will constitute an overt act in the dispute (above, p. 21): while the votes of the individual jurors are secret, the decision of the jury as a whole is public, and the city will know where they stand (§§ 90–91). Here, in pointed contrast to his frequent previous identification of the jury with the city, Lysias is compelled to draw a distinction between the two: he is envisioning the possible acquittal of Eratosthenes, and since he characterizes the city as being in a state of enmity with Eratosthenes, a jury that votes to acquit cannot represent Athens. Having directed the foregoing arguments at all his jurors collectively, Lysias next addresses them segmentally according to their demonstrated allegiances during the recent oligarchy: first the “men of the city,” the former supporters of the Thirty, and then the “men of the Peiraeus,” the rebel democrats who had fought and won the civil war. In §§ 92–94 Lysias offers the defeated men of the city the opportunity to reposition themselves in the conflict. It was especially crucial for the orator to attract the votes of at least some former oligarchs, since the regulations for the euthynai of the Thirty mandated that jurors belong to the propertied classes (toi'~ ta; timhvmata parecomevnoi~: [Arist.] Ath. Pol. 39.6), thus presenting a high probability that men of the city constituted a significantly greater percentage of Eratosthenes’ jury than of the general Athenian population.28 But since their former leaders, the Thirty, were either dead, in exile from Athens, or (in Eratosthenes’ case) on trial for their lives, supporters of the late oligarchy now had a perfect opportunity to abandon the losers and join the winning side. Lysias presents them with several potent incentives to do so. First, the boundaries of enmity exhibited in the civil war were unnatural and improper, since they split asunder kin groups that are natural and proper allies: “you were forced,” Lysias tells the men of the city, “to fight against sons and brothers.” The orator’s representation of the men of the city as victims of compulsion by the Thirty (hjnagkavzesqe), even as slaves to the tyrants (ejdouleuvete), implies that their participation in the oligarchy was involuntary – even more reason to switch sides now that they can (§ 92). While Lysias cannot comfortably call upon the former oligarchs to avenge the relatives who had died at their hands, he can offer them an economic incentive for revenge upon the Thirty: the tyrants had increased their own estates at the expense of their supporters while subjecting them to the same risks and opprobrium (§ 93). The orator concludes his appeal to the men of the city by urging them, now freed from the domination of the Thirty (nu'n ejn tw'/ qarralevw/ o[nte~), to exact vengeance on behalf of themselves and the men of the Peiraeus (kai; uJpe;r uJmw'n aujtw'n kai; uJpe;r tw'n ejk Peiraiw'~ timwrhvsasqe); that is, to reunify the city in a declaration of common enmity against Eratosthenes and his former colleagues in power (§ 94). Next Lysias addresses the men of the Peiraeus. Only a few months before, the people of Athens, democrats and oligarchs alike, had sworn not to remember wrongs (mê mnêsikakein) suffered under the Thirty; but Eratosthenes, as a former tyrant, was excluded from the Amnesty, and so Lysias can give full vent to his feelings and 28 Cloché (1915) 312–13; Rhodes (1993) 470–71.

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urge the men of the Peiraeus to remember. They should remember (ajnamnhvsqhte) their disarmament and banishment by the Thirty and resuscitate the anger they felt then (ajnq∆ w|n ojrgivsqhte...w{sper o{t∆ ejfeuvgete; cf. § 2). They should remember (ajnamnhvsqhte again) the rest of the sufferings the tyrants inflicted upon them: the executions of men ripped from their families and denied proper burial and the difficulties and anxieties that attended their own return from exile (§§ 95–98). Thus, while the men of the city are encouraged to change allegiances, the men of the Peiraeus are urged to hold their position and not to renounce their enmity. As the Amnesty (at least officially) constrained the expression of Athenian democrats’ desires for revenge against the majority of their former adversaries, Lysias aims to direct and focus the full force of their animus onto an acceptable and unprotected target: Eratosthenes, former member (and present representative) of the Thirty Tyrants.29 At the conclusion of his speech (§§ 99–100), Lysias reunites the two groups of jurors that he has just addressed separately and again directs his remarks to the jury as a whole, in the hope that it will present a common front, as he has urged throughout. In his proem (a{pasi pollh'~ ajfqoniva~ ou[sh~ uJpe;r tw'n ijdivwn h] uJpe;r tw'n dhmosivwn ojrgivzesqai, § 2), Lysias had adumbrated the Athenians’ individual and public grievances against the Thirty; in his epilogue he specifies them. He has reminded the men of the city and the men of the Peiraeus in turn of their separate grounds for personal enmity; he now spells out the common grounds that all the jurors share as citizens of a reunified Athens. In admitting by way of excuse that recounting all the deeds of the Thirty would require not just one prosecutor but many, Lysias tacitly invites the jurors to join him as fellow prosecutors. He then reminds them of his motives, which are theirs no less than his: he has brought Eratosthenes to justice on behalf of the sanctuaries defiled by the Thirty, the city that the tyrants reduced to weakness, the dockyards – seat and symbol of Athens’ traditional naval power – that they destroyed, and the men whom they killed. Since the jurors could not prevent the deaths of the Thirty’s victims, they have the duty to help them now that they can (§ 99). Philia, as we have seen, does not expire upon the death of one philos, but rather imposes additional obligations upon his survivors. Lysias presents the image of these heroic dead awaiting the verdict in order to give the jury a final admonition that their votes will determine their position in the ongoing dispute; and in accordance with his practice throughout the speech, Lysias defines his adversaries as the Thirty Tyrants, including, but not limited to, Eratosthenes. The people who died under the oligarchy are listening to Eratosthenes’ trial and will know when the jurors cast their votes;30 those who vote to acquit the defendants (touvtwn) will confirm the death sentences passed by the Thirty on their victims, while those who exact satisfaction from the defendants (para; touvtwn divkhn lavbwsin) will be avenging the dead (uJpe;r aujtw'n [scil. tw'n teqnewvtwn] timwriva~ 29 Cf. § 28, where Lysias alludes to the provisions of the Amnesty with approval: “I think the rest of the Athenians have sufficient cause to place the blame for what happened on the Thirty; but as for the Thirty themselves, if they place blame on their own group, how can you reasonably accept that?” 30 Cf. Lyc. 1.146: “You know well, gentlemen, that although each of you now casts his vote secretly, he will be making his opinion clear to the gods”; similarly Dem. 19.239.

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pepoihmevnou~). Having thus reasserted the boundaries of enmity finally, explicitly, and vividly, Lysias once again aligns the jurors with himself as fellow victims of the Thirty (pepovnqate, “you have suffered”), then urges them to respond accordingly and convict, bringing his prosecution to a close with the stark imperative dikavzete, “Render your verdict” (§ 100).

Lysias’ conduct of the dispute Thus, from the beginning of his speech to the end, Lysias clearly and repeatedly presents the ongoing and bitter conflict in which he is presently engaged as a dispute between the people of Athens (including the citizen jurors, and championed by the metic prosecutor) and the Thirty (including, and represented by, the defendant Eratosthenes). The opposing sides are further characterized by a distinct difference in their conduct of the dispute, as Lysias portrays his behavior as directly antithetical to the motives and actions of the Thirty. Lysias’ self-representation is marked by the attributes of reluctance, restraint, and righteousness. After first establishing the boundaries of enmity in § 2, with Eratosthenes and the rest of the Thirty ranged on one side and himself and the Athenian people on the other, Lysias employs the topos of the reluctant disputant commonly found in Attic oratory: “So I, men of the jury, who have never conducted my own or anyone else’s business in public, now stand compelled by what has happened to prosecute this man. As a result, I have often fallen into deep despair, fearing that, due to my inexperience, I would conduct this prosecution on behalf of myself and my brother in an unworthy and incapable manner; nonetheless, I will attempt to instruct you from the beginning in as few words as I can” (§ 3).31 In order to deflect accusations of sycophancy, Athenian prosecutors regularly presented themselves as having been forced into litigation by the actions of their defendants32 or as inexperienced in matters of law;33 here Lysias skillfully combines both commonplaces. He expands upon this theme later in his speech, offering repeated assertions that he neither initiated nor desired the existing state of hostilities against Eratosthenes and the Thirty. In fact, by his own account, Lysias had never found himself in enmity against anyone prior to the death of his brother: Lysias, Polemarchus, and their father Cephalus were such model metics that they had not participated in a single lawsuit as either prosecutors or defendants, nor acquired a single enemy (ejcqro;n d∆ oujdevna kekthmevnou~), in the more than thirty years they had lived in Athens before the rise of the Thirty (§§ 4, 20).34 Lysias’ posture of reluctance extends even into unreal conditions: he wishes that there were some truth 31 On the topos of reluctance to engage in antagonistic behavior, particularly litigation (commonly labeled apragmosynê, “staying out of [other people’s] affairs”), see, e. g., Arist. Rhet. 1381a24–25 with Cope-Sandys (1877) 2.47; Christ (1998b) 166. 32 Such protestations occur with the greatest frequency in lawsuits against relatives; e. g. Lys. 32.1; Isae. 2.1; Dem. 27.1; 39.1: above, p. 85 with n. 2. 33 E. g., Dem. 41.2; 54.1; see Carey (1994) 27–28. 34 Bearzot (1997) 96–97.

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to the defense’s expected plea that they had done no wrong, since he would have “not the least share of the benefits” (§ 22). Alongside his self-characterization as a reluctant participant in the dispute, Lysias employs another common topos, that of prosecutorial restraint. As Robin Osborne observed in an article fundamental to the study of Athenian law, the law of Athens was characterized by its “open texture,”35 possessing a diversity of procedural options available to redress most wrongful acts. Consequently, when an Athenian prosecutor confronted with such options chose a legal procedure carrying a less severe penalty over another appropriate procedure carrying a more severe penalty, he commonly advertised his moderation to the jury, with the purpose of presenting himself as a reasonable man, not subject to overreaction, and thus both credible and persuasive.36 Upon first inspection, the fact that Lysias seeks to enforce upon Eratosthenes the most extreme sanction allowed by law would seem to preclude his use of this topos; yet in spite of this apparent obstacle, he neatly manages to portray his demand as reasonable by couching his proposal of the death penalty in the language of compromise. At § 36 he poses a rhetorical question to the jury: since the commanding generals at Arginusae who submitted to judgment received the death penalty despite winning the battle (see Xen. Hell. 1.6.25–1.7.35), should not the Athenians punish the Thirty, who contributed to the loss at Aegospotami37 and later sentenced numerous citizens to death, by executing them and even their children?38 Having thus presented the jury with a harsher (albeit impossible) prospect of punishment – a sentence of death enforced upon all thirty former tyrants along with their children – Lysias advocates a penalty that is more limited in focus and thus more moderate by comparison. He defines his burden of proof by stating, “I think I have to prosecute until the defendant (tw'/ feuvgonti) is deemed to have committed 35 Osborne (1985b) 48 (above, p. 22). 36 For example, Ariston, the prosecutor and speaker of Demosthenes 54, asserts that the vicious and humiliating assault to which he was subjected rendered the defendant Conon liable to apagôgê as a cloak-snatcher or to a graphê hybreôs, both capital procedures (apagôgê carried a statutory death penalty, while the graphê hybreôs was an assessable lawsuit [agôn timêtos: above, p. 156] in which the prosecutor could propose execution as punishment). On the advice of his friends and family, however, Ariston elected to prosecute Conon by dikê aikeias, in which the penalty was an assessable monetary fine (Dem. 54.1). See Paley-Sandys (1886–1910) 2.185–87; Carey-Reid (1985) 73–77; on the topos of restraint see Carey (1994) 37; Christ (1998b) 166. 37 Xenophon’s description of the battle of Aegospotami (Hell. 2.1.18–32) does not mention the role played by any of the future tyrants (named at Hell. 2.3.2). However, Xenophon’s silence does not necessarily compromise Lysias’ credibility. Xenophon is mostly concerned with the actions of the commanders in the battle, and Lysias states that the Thirty-to-be affected its outcome as private citizens (ijdiw'tai o[nte~). Furthermore, both Lysias and Xenophon (e. g., Hell. 2.3.13) document close relations between members of the Thirty and Lysander, who won the battle of Aegospotami mere months before collaborating with the Thirty in Athens (above, p. 148). 38 On Lysias’ proposal to execute the children of the Thirty cf. Cloché (1915) 320–21; Bearzot (1997) 132–33. [Dem.] 40.32 characterizes the Athenians’ failure to exile the tyrants’ children as an act of generosity.

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acts meriting death; for this is the most extreme penalty we can exact from them (par∆ aujtw'n)” (§ 37). Thus, given the realities of the present trial, the execution of the actual defendant, Eratosthenes, represents the limit of available retribution not only against Eratosthenes but against the Thirty as a group; as such, despite falling short of Lysias’ ideal form of revenge, it will have to suffice. Lysias reprises and expands upon this argument in his epilogue. This time, in introducing the topic of punishment, the orator draws an initial contrast that opposes the Thirty not to the condemned Arginusae generals but to his jury: the Thirty (ou|toi) executed innocent men without due process (cf. § 36), but the jurors see fit to try them in accordance with the law, although, even if they broke the law, they could not exact a penalty appropriate to the Thirty’s crimes against the city. Lysias then explains this statement by meditating upon theoretical illegal punishments that might be inflicted upon the Thirty; again he poses a sequence of rhetorical questions, the first of which (as in § 36) signal the theoretical nature of his argument. tiv ga;r a]n paqovnte~ divkhn th;n ajxivan ei[hsan tw'n e[rgwn dedwkovte~; povteron eij aujtou;~ ajpokteivnaite kai; tou;~ pai'da~ aujtw'n, iJkanh;n a]n tou' fovnou divkhn lavboimen, w|n ou|toi patevra~ kai; uJei'~ kai; ajdelfou;~ ajkrivtou~ ajpevkteinan; ajlla; eij ta; crhvmata ta; fanera; dhmeuvsaite, kalw'~ a]n e[coi h] th'/ povlei, h|~ ou|toi polla; eijlhvfasin, h] toi'~ ijdiwvtai~, w|n ta;~ oijkiva~ ejxepovrqhsan; ejpeidh; toivnun pavnta poiou'nte~ iJkanh;n divkhn par∆ aujtw'n oujk a]n duvnaisqe labei'n, pw'~ oujk aijscro;n uJmi'n kai; hJntinou'n ajpolipei'n, h{ntinav ti~ bouvloito para; touvtwn lambavnein; What could they suffer that would constitute the fitting penalty for their actions? If you were to execute them and their children, would we receive sufficient recompense for the killings of our fathers, sons, and brothers whom they executed without trial? What if you confiscated their visible property39 – would that make it right for the city, from which they have taken so much, or for the individuals whose houses they looted? Since, even if you did all these things, you could not exact a sufficient penalty from them, how is it not shameful for you to leave undone any penalty whatsoever that someone wishes to exact from them? (§§ 82–84)

In § 36 Lysias had contemplated achieving satisfaction for the atrocities of the Thirty by imposing the death penalty on the tyrants and their children; here he increases the severity of the penalty by adding the confiscation of their property.40 In so doing so he invites his jury to draw two conclusions, one implicit and one explicit. The aggravation of the hypothetical penalty implicitly makes the actual penalty, the execution of Eratosthenes alone, appear even more moderate by comparison; and Lysias’ assertion that even the aggravated penalty would fail to achieve talio for the actions of the Thirty amounts – as he openly states – to an argument in favor of the conviction and execution of Eratosthenes.

39 On the meaning of this phrase see Phillips (2004) 224 n. 46. 40 While unavailable in the present case, a sentence of death aggravated by the confiscation of property had precedent in Athenian law (on the value of precedent see above, p. 57 n. 97). For example, after the Four Hundred were deposed, the orator Antiphon and Archeptolemus were convicted of treason and executed; the state confiscated their property and dedicated a tenth of it to Athena. In addition, their houses were razed to the ground, they were not allowed burial in any land controlled by Athens, and their descendants were disfranchised ([Plut.] Mor. 834a [Vit. X Orat., Antiphon 24]).

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While Lysias thus portrays himself as both a reluctant and a reasonable protagonist, particularly in his proem and epilogue, he also stresses his determination, which is evident throughout the speech in the vigor of his prosecution. The note of anxiety that the orator sounds in § 3, while evincing uncertainty concerning his ability to prosecute Eratosthenes with appropriate competence, expresses no doubt whatsoever in regard to his zeal. In the epilogue, as he sums up his case, Lysias assures the jury that his resolve remains unflagging: ...th'~ ejmh'~ proqumiva~ oujde;n ejllevleiptai, uJpevr te tw'n iJerw'n, a} ou|toi ta; me;n ajpevdonto ta; d∆ eijsiovnte~ ejmivainon, uJpevr te th'~ povlew~, h}n mikra;n ejpoivoun, uJpevr te tw'n newrivwn, a} kaqei'lon, kai; uJpe;r tw'n teqnewvtwn... ...I am not at all lacking in determination on behalf of the sanctuaries, which the defendants either sold off or befouled by their entrance; on behalf of the city, which they made small; on behalf of the dockyards, which they dismantled; and on behalf of the dead.... (§ 99: above, p. 162)

With this image the orator completes his self-portrait. Forced into enmity by the actions of Eratosthenes, Lysias pursues vengeance zealously, yet with reverence for the divine and with all due moderation given the limitations of the Amnesty of 403 and of the euthynai procedure to which Eratosthenes has willingly submitted. Lysias would achieve prominence as a logographer, and would later win a place among the canonical ten Attic orators, thanks in large part to his unparalleled skill at êthopoiia, the portrayal of character that aimed to make Lysias’ clients sympathetic to their juries.41 It is particularly fitting that the first subject of Lysias’ famously effective character portrayal, depicted in the Against Eratosthenes,42 is the orator himself.

Motives of the Thirty In sharp contrast to this representation of his own behavior, Lysias portrays Eratosthenes’ and the rest of the Thirty’s participation in the conflict as overzealously and dishonorably motivated, initiated, and effected. The Thirty started the hostilities against Lysias and his family – which the tyrants’ subsequent actions would extend so as to encompass the entire city – without just cause.43 The Thirty did not mount 41 E. g., Longin. de Sublim. 34.2; Carey (1994) 40–42; Scafuro (1997) 60. 42 I accept the communis opinio that oration 12 comes first chronologically among the speeches of Lysias. Had Lysias already been known as a logographer when he prosecuted Eratosthenes, his assertions that he had never previously represented himself or anyone else in court (§§ 3, 4: above, pp. 154, 163) would have been blatant – and easily impeachable – lies. Cf., e. g., Blass (1887–98) 1.542. 43 For the topos of blaming one’s opponent in litigation as the wrongful initiator of the dispute cf. [Dem.] 59.1: “We have been wronged greatly by Stephanus and subjected to the most extreme dangers by him...so that I will conduct this lawsuit not as the initiator (uJpavrcwn) but as one seeking revenge (timwrouvmeno~). For he initiated the enmity first (th'~ ga;r e[cqra~ provtero~ ou|to~ uJph'rxen), without ever having suffered ill treatment by us either in word or in deed.” The origin of the dispute between Ariston and Conon that eventually resulted in Demosthenes 54 lay, according to Ariston, in the unprovoked insulting and hubristic treatment of himself, his

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their initial attack on Lysias, Polemarchus, and eight other metics by way of punishment (timwrei'sqai), which would imply a prior overt act by the metics and therefore constitute a proper act of retribution by the Thirty; it was, rather, an unprovoked attempt at financial gain (crhmativzesqai), the gratuitous opening salvo of a groundless dispute (§ 6).44 So says Lysias; but the preemptive strike against Lysias and Polemarchus may well have been motivated by a reasonable expectation that these two metics, at least, would be enemies of the regime. Lysias allows this motive as a pretext (provfasin, § 6), but it may have been grounded in fact. Lysias’ father Cephalus, after all, had relocated his family to Athens on the invitation of Pericles (§ 4: above, p. 153), the ideal exemplar and proponent of the Athenian democracy, and the orator later characterizes himself and his family as eager supporters of the democracy who had performed all appointed choregic liturgies and paid numerous eisphorai (war-taxes), even going beyond the call of duty in ransoming Athenian prisoners of war (§ 20). The Thirty might reasonably have feared that Lysias and Polemarchus, with their wealth and close ties to prominent democrats,45 might pose a real threat to the oligarchy: should resistance arise, the brothers could provide material as well as financial support, since they owned a shield-making business.46 Certainly after his flight into exile Lysias actively promoted the rebel cause, hiring mercenaries and providing the men of the Peiraeus with money and shields47 – in recognition of which assistance the orator was (fleetingly) awarded Athenian citizenship after the democratic restoration48 – but we cannot responsibly retroject Lysias’ staunch support for democracy after the Thirty had tried to kill him onto the period immediately preceding his arrest. To whatever degree Lysias’ participation in the civil war confirmed the Thirty’s putative suspicions, as opposed to reflecting the Thirty’s treatment of the orator and his brother, it is reasonable to posit that the tyrants struck at Lysias and Polemarchus not simply because they were wealthy (as Lysias would have it) but because, given the brothers’ connections and prior civic conduct, their wealth might well find its way into the hands of enemies of the regime. Yet we may also safely conclude that Lysias and Polemarchus had not openly

44 45

46 47

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friends, and his slaves by the sons of Conon (Dem. 54.3–6). Note especially § 3: “the original enmity (hJ...ejx ajrch'~ e[cqra) and collisions between us arose from there”; and § 6: “With the affair having advanced to this point, when we returned to Athens, as a result of the aforementioned events there existed between us, as could be expected, reciprocal anger and enmity (e[cqra).” See above, pp. 18–19. Cf. § 20: “They wronged us for our money, treating us as others would treat people out of anger at serious offenses.” But also, notably, to Socrates, who was condemned in 399 largely for his connection to prominent oligarchs, including Critias (see above, pp. 149–50): in Plato’s Republic Socrates is hosted by Cephalus and his sons, including Polemarchus (who extends the invitation: 327b–c) and Lysias (328b). The Thirty seized 700 shields from Lysias and Polemarchus (§ 19). Lys. fr. I.6.I Gernet-Bizos, on which see Gernet-Bizos (1989) 226–32, 254; Todd (1993) 232– 36, (2000) 366–73. [Plut.] Mor. 835f (Vit. X Orat., Lysias) gives totals of 2,000 drachmas (plus 2 talents donated by Lysias’ friend Thrasydaeus of Elis), 200 shields, and 300 mercenaries. [Plut.] Mor. 835f–836a (Vit. X Orat., Lysias); see above, p. 154 n. 4. Cf. IG II2 10, a later decree (passed in the archonship of Xenaenetus, 401/0) enfranchising metics who had assisted the democratic return (below, p. 196).

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opposed the Thirty before their arrest; if they had, Lysias would surely have enlightened his jury accordingly so as to elicit additional sympathy. Therefore, in contrast to the democratic leaders mentioned in Lysias 13, who vocally obstructed Theramenes’ proposal of peace terms (Lys. 13.5–16: above, p. 139 and see chapter 7), Lysias and Polemarchus had committed no overt act against the Thirty, and so Lysias’ contention that the tyrants initiated the state of enmity against himself and his brother can be accepted as accurate. In addition to placing blame on the tyrants for commencing hostilities, Lysias presents their motives for the dispute as reprehensible. Athenians drew a fundamental distinction between litigation launched in the respectable prosecution of echthra and litigation pursued for financial gain, which represented the archetype of sycophancy.49 The natural corollary of this distinction is that sycophancy and enmity properly pursued are, in some sense, antonymous; and even the former oligarch Xenophon applies this antithesis to the actions of the Thirty in stating that the tyrants “killed many men for the sake of enmity and many others for the sake of money” (pollou;~ me;n e[cqra~ e{neka ajpevkteinon, pollou;~ de; crhmavtwn, Hell. 2.3.21). At the beginning of his narratio, Lysias calls the Thirty “degenerates and sycophants” (ponhroi; kai; sukofavntai, § 5):50 the tyrants merit description as sycophants, rather than simply thieves, because they regularly subjected their victims to show trials before a Council of 500 stacked with supporters of their regime. Lysias was not alone in condemning the Thirty as sycophants: in addition to the comment quoted above, Xenophon implicitly levels the same criticism in reporting a remark of Theramenes (an obviously sympathetic character in this part of the Hellenica) that the Thirty “behave more unjustly than the sycophants (ajdikwvtera tw'n sukofantw'n poiei'n), since they allowed the people from whom they took money to live; are we to kill those who do no wrong in order to seize money?” (Hell. 2.3.22).51 Shortly after accusing the tyrants of sycophancy, Lysias explicitly contrasts the tyrants’ sycophantic designs with things done “for good reason.”52 As the speech develops, however, he manages to blur the distinction between sycophancy and enmity, incorporating sycophancy within the enmity model and portraying the Thirty as both sycophants and echthroi.53 For Lysias, as we shall see, the financial 49 Lofberg (1917); Christ (1998b). 50 Bearzot (1997) 98. Lysias’ characterization of the Thirty as sycophants from the beginning of their reign may be designed to counteract the prevailing view that held that, at the outset, the Thirty met with general approval for their crackdown on sycophancy (Xen. Hell. 2.3.12; [Arist.] Ath. Pol. 35.2–3; cf. Lysias’ statement in § 5 that the tyrants “claimed that it was necessary to cleanse the city of the unjust and convert the remaining citizens to excellence and justice” but failed to carry out their promise). 51 Cf. Hell. 2.3.43, where Theramenes accuses his fellow tyrants of “shameful greed” (aijscrokevrdeian). 52 § 7: the Thirty decided to arrest two poor metics so that they could say “that these things had not been done for money but had occurred for the benefit of the state – as if they had done anything else for good reason.” 53 Contemporary and later orators commonly adopted similar tactics, with stock accusations of sycophancy directed at any prosecution mounted against a speaker’s interests; e. g., Andoc. 1.99; Dem. 29.22; Hyp. 3.25; Lyc. 1.31.

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motives of the tyrants form one proof of a general argument that the Thirty conducted hostilities against his family and the Athenian people in violation of recognized and honorable norms. Lysias’ contention in § 6 that the tyrants targeted him and Polemarchus in order to seize their assets is both repeated with regard to the specific case of the brothers and broadened so as to constitute a general motive for the Thirty’s mistreatment of the Athenian people, including not just the democratic partisans who suffered exile or execution but even the tyrants’ own supporters. Lysias tells his jury that after his arrest he offered one of his captors, the tyrant Peison, a bribe of one talent to save his life; after agreeing to these terms, Peison extorted additional funds and four silver bowls and denied him traveling money (§§ 8–12). Then, after Peison had taken him to the home of Damnippus, Lysias informed Damnippus that he was guilty of nothing and was being destroyed for his money (ajdikw' d∆ oujdevn, crhmavtwn d∆ e{neka ajpovllumai, § 14). At Lysias’ urging, Damnippus offered a bribe to another of the tyrants, Theognis (§§ 12–15); as Damnippus and Theognis were conversing, Lysias seized the opportunity to escape. The orator relates Peison’s acceptance of his bribe (and subsequent extortion of money in excess of the agreed-upon sum) and Damnippus’ comment that Theognis would do anything for money as illustrative examples of the individual avarice of the tyrants; indeed, these events suggest that, for the Thirty, personal profit trumped the interests of the state, real or pretended. According to Lysias, the tyrants’ pretext for arresting him and his brother was the allegation that they opposed the regime, while their actual reason lay in the financial difficulties confronting the oligarchy. Yet Peison and (hypothetically) Theognis subvert both the Thirty’s pretense of eliminating threats to the regime, by their apparent willingness to allow Lysias to escape,54 and the government’s genuine financial need, by appropriating bribe money that should have gone into the public treasury. In § 19 the orator itemizes the revenue accruing to the Thirty from the property seizures carried out against himself and Polemarchus: 700 shields; enormous amounts of silver and gold (including three talents of silver, 400 Cyzicene staters, 100 gold darics, and four silver bowls from Lysias alone: § 11) as well as bronze, jewelry, furniture, and women’s clothing; 120 slaves; and, to cap it all off, a pair of earrings physically ripped from the person of Polemarchus’ wife.55 The tyrants,

54 While Lysias’ description of his capture and escape permits the conclusion that Peison doublecrossed him and never intended to let him go (see below, p. 177), I believe that he is intentionally vague regarding Peison’s plans. Lysias presents the events following his agreement with Peison as follows: As Peison and Lysias were leaving Lysias’ house, they were intercepted by two other tyrants, Melobius and Mnesitheides, who told Peison to be on his way and ordered Lysias to accompany them to the house of Damnippus; Peison urged Lysias to keep quiet and take heart, since Peison would meet him at Damnippus’ (§§ 12–13). Given this final piece of encouragement, the orator’s subsequent assertion that he escaped from Damnippus’ house on his own initiative (rather than waiting for Peison) leaves the question of Peison’s intent open. 55 Cf. Lys. fr. I.2.I Gernet-Bizos, which appears to appraise the total value of Lysias’ estate seized by the Thirty at 70 talents.

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says Lysias, kept the most valuable items for themselves,56 depositing the remainder in the treasury;57 thus the orator portrays these seizures as impelled in the first place by personal avarice (individual tyrants’ desires to line their own pockets) and in the second place by the corporate necessity of bankrolling the regime (cf. § 6).58 Lysias concludes his description of the sack of his and his brother’s estates by commenting that the Thirty “wronged us for our money as others would act out of anger (ojrgh;n e[conte~) at serious offenses” (§ 20). He reiterates this point at § 23, contending that Eratosthenes killed Polemarchus “not because he had wronged him personally” – which would have constituted apt grounds for retaliation – “or because he saw him committing an offense against the city, but eagerly serving his own lawless nature.” Lysias then compels Eratosthenes to admit under cross-examination that he believed the executions of Polemarchus and the other metics to be unjust (§ 25). The thrust of the argument in these passages is that the vehemence of the Thirty’s assault on Lysias and Polemarchus, which came without provocation and arose from dishonorable pecuniary motives, normally characterized a retaliatory act committed in the honorable prosecution of enmity.59 The Thirty, therefore, exhibited the behavior of echthroi without possessing the proper motives for echthra. Not restricting their targets to ten unfortunate metics, the Thirty enriched themselves and the regime at the cost of their fellow citizens as well. Early in the Against Eratosthenes, Lysias offers preliminary allusions to the extent of the tyrants’ sycophantic depredations: the phrase uJpe;r tw'n ijdivwn in § 2 (above, p. 157) is sufficiently vague to cover financial losses as well as dead relatives, and at § 7 the assertion that the Thirty “considered killing men to be of no import but seizing money to be of great import” appears in the context of the tyrants’ decision to target metics, but the generalizing ajnqrwvpou~ indicates that Lysias intends this as a broad comment on the tyrants’ policy. The orator implicitly attributes the tyrants’ targeting of citizens to sycophantic motives in § 21, stating that, among other atrocities, the Thirty killed numerous citizens unjustly (ajdivkw~) and prevented the intended betrothals of many marriageable girls: these girls could not be wed because the Thirty had seized their fathers’ assets, thus preventing the payment of dowries. Lysias becomes explicit about the Thirty’s sycophantic victimization of Athenian citizens in 56 It is grammatically possible, but logically unlikely, that the relative pronoun introducing the clause w|n ta; bevltista e[labon (opposed to ta; de; loipa; eij~ to; dhmovsion ajpevdosan) refers only to the nearest antecedent, the 120 slaves. 57 We may fairly ask how Lysias could know this, since he fled to Megara the next day. This detail may be a mere fabrication; on the other hand, it is possible that Lysias can conjecture as to the division of his assets by the Thirty on the basis of the status of his former possessions upon his return. Under the Amnesty of 403, property confiscated by the Thirty reverted to its former owners, while assets that the tyrants had sold remained the property of the buyers. See Lys. fr. I.2.I Gernet-Bizos; Todd (2000) 367–68. 58 Krentz (1982) 80–81 believes that Lysias exaggerates the role of avarice in the actions of the Thirty, but even he notes that both the former oligarch Xenophon (Hell. 2.3.21; cf. 2.4.21) and the author of the Ath. Pol. (35.4) considered greed to be a cardinal motive of the tyrants. On the Athenian and later tradition regarding the greed of the Thirty see Balot (2001) 220–24. 59 Cf. Lysias’ use of ojrgivzesqai to signal enmity at §§ 2, 80, 90, 96.

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§ 48, where he asserts that Eratosthenes should have informed the Council of 500 that the tyrants were filing false impeachments concocted in order to harm their fellow citizens (sugkeivmena ejpi; th'/ tw'n politw'n blavbh/). Here again the allegations advanced by Lysias find corroboration in Xenophon (Hell. 2.3.38–40), who has Theramenes complain of the arrest of noble citizens (kalouv~ te k∆ ajgaqouv~) including the blameless Leon of Salamis, Niceratus son of Nicias (PA = APF 10741), who had never displayed enthusiasm for democracy, and the former trierarch Antiphon (PA = APF 1283: not to be confused with the orator, who had been executed in 410). Later, too, Lysias posits personal enrichment at the expense of innocent lives as the primary motivation of the Ten who succeeded the Thirty after the battle of Munychia and with whom Eratosthenes was aligned.60 Adding insult to injury, the tyrants used some of the funds seized from their victims to finance the continuing conflict against them, by paying the Spartan mercenaries who helped maintain their regime (§ 60).61 Not only the enemies of the Thirty but their friends too suffered dispossession: at § 93 Lysias reminds the former men of the city that the civil war had diminished their assets and the Thirty had failed to share with them the profits made at the expense of their adversaries.

Conduct of the Thirty The Thirty’s inappropriate financial motive for establishing relationships of enmity augurs their base conduct as echthroi. Xenophon reports that the tyrants openly acknowledged the state of private enmity between themselves and their partisans and the supporters of democracy;62 yet the tyrants transgressed several cardinal Athenian norms in prosecuting the dispute against their enemies. To begin with, the Athenians subscribed to the dogma that a man’s home was his castle.63 Breaking into the home of an enemy crossed the bounds of acceptable behavior for echthroi and could be construed as hubris.64 In Lysias’ Against Simon, the speaker alleges that his prosecutor Simon, in the course of the conflict between them, committed an act of hubris by illicitly entering his home by night while drunk and breaking into the women’s quarters (Lys. 3.6–7).65 The trierarch of [Demosthenes] 47 vilifies his adversaries along similar lines: while engaged in hostilities with him, they broke into his farmhouse and disturbed his wife (§ 53: above, p. 117). Even agents of the government were supposed to exercise circumspection in entering the home of a 60 § 56: “what bothered them was not the dead nor those about to die, but those who had more power and were becoming rich more quickly.” 61 According to Xenophon (Hell. 2.3.21), the Thirty used the estates of the proscribed metics for exactly this purpose. 62 At Hell. 2.3.28 Critias, in the company of the rest of the Thirty, announces to the Council of 500 that “both you and we are openly at enmity with the dêmos” (kai; uJmei'~ kai; hJmei'~ fanerw'~ ejcqroi; tw'/ dhvmw/ gegenhvmeqa). Cf. Arist. Rhet. 1400a35–36. 63 See Christ (1998a) 522–25. 64 On the concept of hubris see Fisher (1992). 65 Both the time of day and Simon’s intoxication support the characterization of Simon’s behavior as hubris: see Phillips (2000) 154 with n. 45; 197–201.

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private citizen: Demosthenes relates that Aeschines criticized him on one occasion for “committing hubris against unfortunate citizens and entering houses without a decree” (Dem. 18.132).66 In contravention of this Athenian doctrine of the inviolability of private homes, the Thirty broke into their targets’ houses to carry out arrests. While Demosthenes would contend in 355, almost a half-century after the fact, that the Thirty conducted arrests in the agora but respected the sanctity of private homes (Dem. 22.52),67 both Lysias and Xenophon, who experienced these events firsthand, make it clear that no such scruples handcuffed the tyrants. Xenophon has the rebel leader Thrasybulus tell his men before the battle of Munychia that “we were arrested at dinner, in our sleep, and in the agora” (Hell. 2.4.14), and it is quite possible that this part of Thrasybulus’ speech reflects the personal experiences of Xenophon as a man of the city who served in the cavalry under the Thirty. Xenophon’s account is corroborated both specifically and generally by Lysias. The deputation assigned to apprehend Lysias did so at his home, interrupting a dinner party and expelling his guests (§ 8). Eratosthenes arrested Polemarchus in public (ejn th'/ oJdw',/ § 16), but only after an initial search of Polemarchus’ home, during which the tyrant Melobius manhandled Polemarchus’ wife (§ 19: above, p. 169). Lysias’ description of this intrusion, complete with the aggressors’ hubristic treatment of a woman, parallels the scenes in Lysias 3 and [Demosthenes] 47 discussed above and was intended to inspire the same animus in the jury. The incursions of the Thirty into the homes of Lysias and Polemarchus were no isolated incidents, but rather exemplified a habitual policy of the tyrants: later in his speech, addressing the jury, Lysias states as plain fact that “you are angry at all those who came into your houses conducting a search either for you or for one of your own” (§ 30). He reasserts this point in § 33, stating that “we were not even allowed to be in our own homes (par∆ auJtoi'~ ei\nai),” and in his epilogue he adds picturesque and poignant detail, reminding the men of the Peiraeus that the tyrants had physically dragged away some of their victims from children, parents, and wives (§ 96). The agreement on this policy of the Thirty exhibited by two eyewitnesses from opposite sides of the civil war – Lysias, a victim of the Thirty and supporter of the democratic counterinsurgency, and Xenophon, a man of the city who had collaborated with the tyrants – argues decisively for the acceptance of their accounts over the contradictory assertion of Demosthenes (born, we should note, some twenty years after the reign of the Thirty). Another violation of the accepted norms of Athenian enmity occurred when the Thirty brought a target to trial. Under the democracy, the Athenian courts functioned as proper venues in which adversaries could pursue their hostilities. In the jury-courts (dikastêria), which Athenians considered a bastion of their democracy ([Arist.] Ath. Pol. 9.1), a jury of the litigants’ peers afforded disputants the opportunity to have their lawsuits decided by a group that, in theory and principle (and despite the overrepresentation of the aged and poor), both represented and symbolized 66 Aeschines’ reported complaint that such actions are terrible in a democratic state (ejn dhmokrativa/ deinav) may well tacitly undermine Demosthenes’ assertion that the Thirty refrained from entering their targets’ homes (see below). 67 This statement appears to be accepted by Krentz (1982) 81–82.

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the Athenian state as a whole.68 Although the democratic homicide courts were staffed largely by specialists and not by men from the pool that provided jurors for the dikastêria, positions on the Council of the Areopagus, and therefore on its subcommittee of fifty-one ephetai (if the common identification of the ephetai is correct: above, p. 60 n. 8), were determined ultimately by lot beginning in 487/6, when the Athenians adopted sortition ek prokritôn for the annual archonships ([Arist.] Ath. Pol. 22.5). Hence the homicide courts, like the dikastêria, embodied the Athenian people and thus constituted legitimate venues for conducting disputes. As we have seen (above, pp. 139–40), the Thirty suppressed both the jury-courts and the homicide courts and transferred jurisdiction over most lawsuits, and with it the venue for the attending disputes, to the Council of 500. (In the next chapter we shall encounter a vivid example of this transfer of jurisdiction in Lysias’ oration Against Agoratus: there the speaker relates that the Athenian Assembly ordered a number of suspected threats to the regime to be tried by a jury of 2,000, but the Thirty countermanded the will of the people and put the defendants on trial before the Council of 500.) The Council of 500 was historically the embodiment of democracy par excellence: it had been instituted by Cleisthenes as one of the reforms that established and defined Athenian democracy, and its members had always been appointed by lot, fifty from each of the ten Cleisthenic tribes. Traditionally, therefore, the Council was just as representative of the Athenian citizen body, if not more so, than the dikastêria. The Thirty perverted this democratic institution and turned it into an instrument of oligarchy by installing as councillors men friendly to their regime.69 Consequently, in lawsuits tried by the Council, the verdict was predetermined: not only had the Thirty stacked the Council with their partisans, but the tyrants themselves might attend trials and oversee the balloting of the councillors so as to compel by intimidation the outcome they desired (Lys. 13.37: below, p. 226). Moreover, the Thirty’s passage of the law arrogating to themselves the ius vitae necisque over all individuals excluded from the catalogue of the privileged Three Thousand (above, p. 140) removed even the necessity of subjecting them to show trials before the Council: the Thirty could pass death sentences on these people on their own authority, although a vote of the Council was still required to execute a member of the Three Thousand. These conditions clearly compromised the integrity of the legal process, and therefore, in contrast to the forensic pursuit of enmity during the democracy, trials before the Council under the Thirty signaled the improper prosecution of echthroi 68 MacDowell (1971) 2–3; Phillips (2004) 6. 69 [Arist.] Ath. Pol. 35.1: “Having gained control of the city, and having appointed (katasthvsante~) 500 councillors and the other magistrates from 1,000 men chosen in advance...”; cf. Lys. 13.20. The use of the verb kaqivsthmi by the author of the Ath. Pol. suggests that the Thirty selected the members of their Council by appointment rather than (traditionally democratic) allotment: the same verb is used for the appointment of the Thirty themselves (oiJ me;n ou\n triavkonta tou'ton to;n trovpon katevsthsan, Ath. Pol. ibid.). The phrase “from 1,000 men chosen in advance” (ejk prokrivtwn ejk tw'n cilivwn) has occasioned scholarly debate as to their identity (and true number): see Rhodes (1993) 438. For our purposes, however, the only important issue is to identify who did the choosing, and the answer must be the Thirty.

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by the tyrants and resulted in the improper arbitration of disputes by the Council (and later, in some cases, by the Thirty themselves). As Lysias observes, the cooption of the Council by the Thirty and the tyrants’ eventual assumption of capital jurisdiction over those outside the Three Thousand meant that Eratosthenes (along with his colleagues in power) was “both prosecutor and juror of the men on trial” (kathvgoro~ kai; dikasth;~ auJto;~ h\n tw'n krinomevnwn) – a constitutional violation that the orator contrasts with democratic practice, as exemplified by the present trial of Eratosthenes, featuring mutually independent prosecution, defense, and jury (§ 81). Lysias continues to emphasize this disparity between the legal procedures of the oligarchy and the democracy in the next section: while he is prosecuting Eratosthenes in accordance with the law (kata; to;n novmon), the Thirty put innocent men to death without due process (tou;~ oujde;n ajdikou'nta~ ajkrivtou~ ajpevkteinan, § 82).70 Accordingly, in a pair of passages previously discussed in the context of tyrannical sycophancy (above, pp. 170–71), Lysias describes the citizens executed under the oligarchy as having met their fate unjustly (ajdivkw~, § 21) and characterizes the accusations brought against citizens by the Thirty and tried by the Five Hundred as fabrications (§ 48). The most blatant violation of proper (that is, democratic) legal procedure occurred in the context of the Thirty’s seizure of Salamis and Eleusis: the tyrants arrested (by apagôgê) three hundred Athenian citizens living in these towns, confined them in prison, and then condemned them all to death on a single vote.71 These general observations and specific instances provided by Lysias demonstrate that the Thirty, in their absolute domination of the machinery of law, perverted the Athenian institution of private enmity and its processes. Indeed, by the nature and exercise of their autocratic control, particularly by their stranglehold on a judicial system in which they often functioned as judge, jury, and executioner, the Thirty, for all practical purposes, removed the potential for litigious reciprocity upon which Athenian echthroi depended (above, pp. 24–25). By Lysias’ account, the Thirty not only broke the rules of echthra in pursuing their enemies but violated the obligations of philia at the expense of their friends. The Thirty, he says, declined to share the assets seized from their victims with their supporters, who suffered financial losses as a result of the civil war. Moreover, the tyrants’ dishonorable motives for and conduct of the conflict redounded upon their partisans and exposed them to reproach: Lysias tells the former men of the city that the Thirty “compelled you to suffer discredit along with them (sundiabavllesqai)” and gave them a share of the censures (tw'n ojneidw'n metadidovnte~) – but not the profits – of their activities (§ 93). Even after the ouster of the Thirty, the leading 70 On the significance of the adjective a[krito~ in accounts of the Thirty see above, p. 139 with n. 15; cf. Bearzot (1997) 112. 71 § 52: Eratosthenes ejlqw;n meta; tw'n sunarcovntwn eij~ Salami'na kai; ∆Eleusi'navde triakosivou~ tw'n politw'n ajphvgagen eij~ to; desmwthvrion, kai; mia'/ yhvfw/ aujtw'n aJpavntwn qavnaton kateyhfivsato. With regard to the Thirty’s condemnation of the residents of Salamis and Eleusis, we may take Lysias literally and need not assume that the tyrants put the men on trial before the Council of 500, since the seizure of these towns (Xen. Hell. 2.4.8–9) occurred after the Thirty assumed the right to execute anyone outside the catalogue of the Three Thousand (Xen. Hell. 2.3.51).

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oligarchs continued to act to the detriment of their adherents. Following the battle of Munychia, the Three Thousand expelled the surviving tyrants from the city of Athens, with the exceptions of Pheidon and Eratosthenes, and elected the replacement board of Ten (above, p. 141). These Ten were chosen, according to Lysias, on the basis of their bitter personal enmity toward the Thirty (tou;~ ejkeivnwn [scil. tw'n triavkonta] ejcqivstou~ ei{lonto)72 and presumed amity toward the men of the Peiraeus, and in the hope that they would reconcile (diallavxai)73 the warring factions. Among the oligarchs, therefore, the rank and file wished to end the dispute with their democratic adversaries, but their leadership would not comply. The Ten intensified the conflict rather than working to end it, and the orator describes the new junta as fighting a two-front war (ejpolevmoun) against both the old regime and the rebels (§§ 54–58). Two former tyrants – Pheidon, who served on the board of Ten, and Eratosthenes, who shared Pheidon’s policies – turned on the remaining Thirty, their former allies; there was, evidently, no honor among sycophants. Lysias offers his most explicit descriptions of oligarchic backstabbing in a lengthy, detailed, and defamatory assault on the character and career of Theramenes, the tyrant-turned-martyr (in the minds of many) with whom the orator expected Eratosthenes to align himself in mitigation of his involvement with the Thirty. Theramenes had played a leading role in both of the oligarchic revolutions of the late fifth century, and in the context of these upheavals Lysias uses the figure of Theramenes to illustrate the perfidy of Theramenes himself (in 411) and of his fellow tyrants (in 404/3).74 In 411, according to the orator, Theramenes had been the man most responsible for persuading the Athenian people to put the Four Hundred in power and had been rewarded for his services with a generalship (§ 65). Comparison with authors who had no bone to pick with Theramenes suggests that Lysias slightly exaggerates Theramenes’ role, but also, and more importantly for our purposes, fills out Lysias’ picture of Theramenes as a traitor to his comrades. Thucydides (8.68) names Theramenes, together with Antiphon the orator (PA 1304), Peisander (PA 11770), and Phrynichus (PA 15011), as leaders of the oligarchic uprising;75 and the author of the Ath. Pol. assigns chief responsibility for the creation of the oligarchy to Peisander, Antiphon, and Theramenes (32.2). Soon, however, Theramenes turned against his associates, executing one of the infamous tergiversations that earned him the nickname “the Buskin.” First, sensing that the oligarchs were falling from favor, he masterminded the downfall of the very regime he had created – a move partially motivated, according to Lysias, by jealousy of his more powerful colleagues, including Peisander and Callaeschrus (PA = APF 7758), the 72 On its face, this seems to be an impossible assertion, since Pheidon, one of the Ten, had been one of the Thirty. Below (§ 55), however, Lysias corrects his generalization and clarifies the boundaries of this internal oligarchic rift: the Ten were enemies of the extremist faction of the Thirty that had been led by Critias and Charicles (PA = APF 15407). 73 For the significance of this term see above, pp. 18, 141. 74 On Theramenes’ role in the Revolutions of 411 and 404 and Lysias’ portrayal thereof see especially Bearzot (1997). 75 On Thucydides’ account of the Four Hundred see Gomme-Andrewes-Dover (1950–81) 5.153ff.; Connor (1984) 222ff.; Kagan (1987) 131ff.

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father of the future tyrant Critias.76 Antiphon too fell victim to Theramenes’ ambitious machinations. Shortly after the restoration of democracy in 410, Theramenes impeached Antiphon and Archeptolemus (PA 2384) on charges of treason; the defendants were convicted, executed, and denied burial in Athenian territory, their houses were demolished, and their offspring suffered outlawry (atimia).77 As Lysias notes, Theramenes “prosecuted and killed Antiphon and Archeptolemus, his closest friends (filtavtou~ o[nta~ auJtw'/), and sunk to such depths of evil that he enslaved you to keep faith with them and destroyed his friends (fivlou~) to keep faith with you” (§ 67). The orator thus portrays Theramenes as an antagonist equally dangerous to friends and enemies.78 Seven years later, when Theramenes attempted to obstruct the policies advocated by his fellow tyrant Critias, the son of Callaeschrus, he suffered the same fate as his erstwhile philoi. Lysias does not dilate upon the fate of Theramenes, for which we rely upon the fuller account of Xenophon, but the testimony of both sources is consistent with and symptomatic of the Thirty’s disreputable behavior at the expense of their supporters and even (in the case of Theramenes) of their colleagues. Lysias reports that, in his final speech before the Council of 500, replying to Critias’ attack, Theramenes reproached the Thirty, citing the oaths the tyrants had sworn to each other (§ 77). When Theramenes’ apologia pro vita sua threatened to win over the councillors, Critias performed an act of constitutional legerdemain, erasing Theramenes’ name from the catalogue of the Three Thousand in order to subject him to the sole authority of the Thirty, who immediately sentenced him to die (Xen. Hell. 2.3.51: above, p. 141).79 Running to the altar in the bouleutêrion, Theramenes begged the councillors to obey the law and not to allow Critias to strike names from the catalogue,80 and predicted that the altar to which he had fled for sanctuary would not protect him, since his fellow tyrants exhibited not only the worst injustice toward men (peri; ajnqrwvpou~ ajdikwvtatoi) but the worst impiety concerning the gods (peri; qeou;~ ajsebevstatoi, Hell. 2.3.53). Theramenes’ prediction came true, as the tyrants demonstrated their disregard for the divine by ordering him dragged from the altar to be executed by hemlock; the condemned man’s appeals to gods and men went unheeded, 76 § 66: “...but when he saw Peisander, Callaeschrus, and others rising above him, and you the people no longer willing to listen to them, then, because of envy toward them and fear of you, he took part in the activities of Aristocrates.” Cf. Xen. Hell. 2.3.30 (Critias): “But when [Theramenes] noticed that a force opposed to the oligarchy was coming together, he became, in turn, the chief leader of the people against them.” On the role played by Theramenes and Aristocrates in the downfall of the Four Hundred and initiation of the Intermediate Regime cf. [Arist.] Ath. Pol. 33.2. 77 [Plut.] Mor. 834a–b (Vit. X Orat., Antiphon 24: above, p. 42); cf. Thuc. 8.68; Ant. fr. I Thalheim = fr. III Gernet = fr. 1 Gagarin. 78 Cf. Xen. Hell. 2.3.29, 32–33 (Critias), 46 (Theramenes). 79 For similar deletions from the catalogue see Isoc. 18.16; 21.2. 80 Xen. Hell. 2.3.52. Theramenes’ use of novmo~ and its derivative e[nnomo~ emphasizes the illegality of Critias’ action: “Gentlemen, I beg of you what is most lawful of all things (ta; pavntwn ejnnomwvtata): that it not be up to Critias to erase me or whomever of you he wishes, but that judgment take place for you and for me in accordance with the very law (o{nper novmon...kata; tou'ton) that they wrote concerning those in the catalogue.”

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with the members of the Council prevented from intervening by the presence of armed guards (Hell. 2.3.54–55).81 Thus Critias avenged his father, displaying as he did so that even the tyrants were not safe from their own laws; and Theramenes fell victim to the same phenomenon of internal fragmentation within an oligarchic bloc that he had precipitated at the expense of his philoi in 411/10. The tyrants’ act of sacrilege in wrenching Theramenes from the Council Hall altar to face the fatal cup of hemlock symptomizes yet another damning aspect of their conduct of enmity that Lysias emphasizes pervasively in the Against Eratosthenes; namely, their disregard of the dictates of Athenian (and indeed universal Greek) religion.82 Throughout Lysias 12, the Thirty manifest their impiety both individually and collectively. In the course of bribing Peison to permit his escape, Lysias extracted an oath from the tyrant, although, as he notes, he knew that Peison respected neither gods nor men (ou[te qeou;~ ou[t∆ ajnqrwvpou~ nomivzei). His prognosis, like Theramenes’, proved accurate. Peison swore, on pain of his own and his sons’ destruction (w[mosen ejxwvleian eJautw'/ kai; toi'~ paisi;n ejparwvmeno~), to save Lysias in exchange for one talent, but then violated his oath and seized additional money and valuables (§§ 9–11: above, p. 169). As just demonstrated, the fact that Theramenes had received oaths from his fellow tyrants (par∆ ejkeivnwn [scil. tw'n triavkonta] o{rkou~ eijlhfwv~) did not prevent his execution (§ 77). Lysias reserves his most explosive ammunition, however, for his peroration, in which he accuses the tyrants of violating the dogma (honored throughout the Greek world) that holy sites guaranteed sanctuary to suppliants.83 He first evokes the victims torn by the Thirty from religious sanctuaries and executed (tou;~ d∆ ejk tw'n iJerw'n sunarpavzonte~ biaivw~ ajpevkteinan, § 96), then asserts that more such atrocities would have occurred had the resistance failed to overthrow the tyrants: “because of their character, neither temples nor altars, which serve as places of sanctuary even for offenders, would have aided you, the victims” (§ 98). Again, Lysias’ description would have projected the image of Theramenes, as well as those of the Thirty’s less illustrious victims, onto the minds of the jurors. Among the numerous acts of sacrilege attributed to the Thirty, Lysias highlights the tyrants’ obstruction of the funerals of their victims, paying particular attention to the burial of his own brother Polemarchus. In recounting the difficulties attending Polemarchus’ funeral, Lysias places himself and those members of his jury who had suffered similar losses in a position analogous to that of Antigone, whose story had been dramatized to critical acclaim by Sophocles a generation earlier:84 as all Athe81 Medieval Icelandic practice provides an illuminating contrast: even in a society where men customarily went about armed (in direct contrast to Classical Athens: Thuc. 1.6.1–3), weapons were prohibited at the local spring assemblies (várþing) and the annual general assembly (Althing), all of which included the hearing of lawsuits; attendees could reclaim their arms after the conclusion of an assembly at vápnatak (“Weapon-Taking”: e. g., Hrafnkels saga Freysgoða 10). 82 The impiety of the Thirty became a standard rhetorical topos: cf. Isoc. 7.66; Aeschin. 2.176. 83 Burkert (1985) 59. 84 Sophocles’ Antigone was performed for the first time at the Greater Dionysia ca. 442/1 and won first prize (Jebb [1900] xlii; Bowra [1945] 63; Watling [1947] 13; Whitman [1951] 81; OCD3 s. v. Sophocles).

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nians knew, Antigone had been compelled by the demands of piety to bury her brother Polyneices, fallen in the siege of Thebes, in spite of the express prohibition of king Creon. In addition to this specific affinity to the figure of Antigone borne by many relatives of the Thirty’s victims, several overarching parallels between the Antigone legend and the reign of the Thirty will have suggested themselves to the orator and his jury.85 The Athenians, oligarchs and democrats alike, had just witnessed for eight months the devastating effects of stasis, which are represented in the Antigone by Polyneices’ assault upon his home city of Thebes; and as we shall see, Antigone’s dilemma in facing the obstacles to proper burial erected by a tyrantgoverned state, including the penalty threatened for violating Creon’s edict,86 will have resounded with especial pathos for those who lost family and friends – condemned as traitors by the Thirty, just as Polyneices was by Creon – during the tyrants’ reign of terror. In discussing the Thirty’s interference with the last rites of their victims, Lysias begins with the individual case of Polemarchus and then generalizes. We know that Lysias received secondhand the details he provides regarding Polemarchus’ funeral, since, facing death in Attica (unless Peison was to be trusted), the orator fled to Megara after evading arrest (§ 17: above, p. 153); his failure to provide witnesses to his brother’s burial probably does not compromise his account but rather suggests that the frequency of similar events rendered the testimony of witnesses unnecessary. Lysias reports that, after executing Polemarchus, the Thirty behaved in miserly fashion in response to requests from Polemarchus’ family connected with the performance of his funeral. “When he was carried out (ajpefevreto)87 of the prison dead,” the orator informs his jury, “although we owned three houses, they did not allow the funeral procession to take place (ejxenecqh'nai) from any of them; instead people rented a hut and laid him out (prou[qento aujtovn).88 And, although we had numerous cloaks, they gave none of them for the burial; instead one of his friends contributed a cloak, another a pillow, another whatever he had for Polemarchus’ burial” (§ 18).89 The Thirty, therefore, did not actively impede the funeral of Pole85 Cf. Allen (2005) 386–92; Bearzot (1997) 113. 86 See especially Soph. Ant. 1–99; note the reference to Creon by the poetic plural turavnnwn at v. 60. 87 Adams (1904) 74 posited that Lysias’ choice of ajpefevreto (rather than ejxefevreto) to describe the conveyance of Polemarchus’ body from the prison, where he had imbibed the hemlock, indicates the irregularity of the funeral that followed; but ejxefevreto would be improper here, since under normal circumstances (as Lysias explains) the ekphora would have been conducted from the home of the deceased or one of his relatives, not from prison. 88 On the ekphora and prothesis see above, p. 70. 89 I take the unexpressed subject of prou[qento to be Polemarchus’ family (and perhaps his friends), not the Thirty, who are the subject of the previous clause but would hardly have made a financial contribution of any kind to the funeral of one of their own victims. In describing his brother’s prothesis, Lysias had to employ the third person, because he was absent, having already fled Attica. (By contrast, the first-person statements that “we” owned the houses and cloaks are apt, since, regardless of their location, Lysias and his family were still the rightful owners of the assets in question.) Cf. Phillips (2004) 27; Todd (2000) 119. However, see contra Frohberger (1882) 26; Lamb (1930) 235; Gernet-Bizos (1989) 1.163; Edwards (1999) 94. Frohberger and Edwards suggest that the Thirty rented the hut for Polemarchus’ prothesis in order

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marchus, but they did what they could to inconvenience and humiliate his family and friends. As with other aspects of the tyrants’ conduct, Lysias presents his own individual case – in this instance the difficulties attending the burial of Polemarchus – as a symptomatic instance of an overarching theme. At § 21 the orator asserts that the Thirty “killed many men unjustly and left them unburied (ajtavfou~ ejpoivhsan).” While it is possible that in some cases the tyrants literally left the bodies of their victims exposed, later passages in the Against Eratosthenes suggest that Lysias uses the adjective a[tafo~ in the same way as a[krito~, indicating not that the relevant action has not been performed but that it has been performed improperly. In the context of the reign of the Thirty, as observed above (p. 139 with n. 15), a[krito~ generally means “without due process,” not “without any trial at all.” In like manner, a[tafo~ in the present passage means “without proper burial,” not “without burial” tout court. Elsewhere in his speech, Lysias consistently describes the funerals of the tyrants’ victims as difficult and dangerous, but not impossible or unexecuted. “Thanks to Eratosthenes and his colleagues in power,” he asserts, “it was a fearsome thing even to go to the ekphora of the dead,” and the friends and family of the Thirty’s victims – easily identifiable by their participation at funerals – died along with them (§§ 87–88). In his peroration Lysias deplores the fact that the tyrants prevented their victims from receiving customary burial (oujde; tafh'~ th'~ nomizomevnh~ ei[asan tucei'n, § 96: emphasis mine) – a statement that, as we have seen, includes the case of Polemarchus and the irregularities of his funeral. This sacrilegious disruption of holy rites dear to the hearts of the Athenians proves, for Lysias, that the tyrants believed themselves to be beyond the reach of divine punishment (hJgouvmenoi th;n auJtw'n ajrch;n bebaiotevran ei\nai th'~ para; tw'n qew'n timwriva~, § 96), and thus represents the acme of hubristic impiety.90 Over eighty years later, Aeschines would present an account of the conduct of funerals under the Thirty in terms that appear to contradict these statements by Lysias. In his speech Against Ctesiphon, delivered in the celebrated Crown case of 330, Aeschines alleges that the tyrants “did not allow the relatives of the dead to be present at their funeral processions and burials” (oujd∆ ejpi; ta;~ tafa;~ kai; ejkfora;~ tw'n teleuthsavntwn ei[wn tou;~ proshvkonta~ paragenevsqai, Aeschin. 3.235). As Lysias indicates in the Against Eratosthenes that mourners were allowed to attend these funerals but faced grave risks if they did, we must either reject Aeschines’ statement as false or read it as a rhetorical exaggeration signifying that the tyrants permitted their victims’ kin to attend funerals, but that attendance presented such to keep his friends and family away from the funeral, where they might cause a disturbance (see below, p. 180); Edwards additionally posits that the word kleisivon indicates “the lack of respect shown” Polemarchus. These arguments can be countered as follows. As to Polemarchus’ prothesis, the funerary contributions made by friends of Polemarchus suggest that they were present at least at the burial (taphê); and if the tyrants had barred mourners from any stage of the obsequies, Lysias surely would have mentioned the fact as further proof of the Thirty’s impiety. As for the kleisivon, presumably a small hut was all the mourners could afford after the Thirty had ransacked Lysias’ and Polemarchus’ estates. 90 Cf. Bearzot (1997) 112–13.

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threatening hazards as to dissuade many would-be mourners – an interpretation that would square with the reports given by Lysias. (A third possible explanation, based on some editors’ treatment of this passage, will be discussed below.) While the Thirty’s actions with regard to the funerals of their victims thus contribute to Lysias’ portrayal of the tyrants as impious and generally despicable antagonists, these tactics also served the oligarchs’ practical interests. Deterring, or even preventing, the kin and friends of the men they had executed from conducting the traditional funerary rites on their behalf served to prevent such funerals from becoming rallying points of discontent with the regime responsible for their deaths. If allowed to commemorate unchecked the death of a man executed by the Thirty, relatives and friends could be expected to mount an “aggressive funeral” of the type described in chapter 2. We may envision such a ceremony as including the display of the spear and the proclamation by the victim’s kinsmen against the killer or killers, presumably naming the Thirty themselves, individual members of the junta, or prosecutors and/or informants who supported the oligarchy. For obvious reasons, the tyrants wished to suppress open declarations of enmity against themselves and their partisans, especially as the large number of their victims (eventually totaling some 1,500: above, p. 141) might encourage the victims’ families to combine their forces and thereby mount a serious threat to the regime.91 On the other hand, by monitoring and imposing (at least implicit) restrictions upon their victims’ funerals, the Thirty could presume the existence of hostility, and of a de facto state of enmity, against themselves on the part of those who attended: in accordance with the transitive property of echthra (above, pp. 25–29), friends and relatives of an executed enemy were now, if not before, enemies themselves. By assuming that funeral attendance proved enmity, the tyrants could identify and target additional adversaries and could accordingly neutralize threats to their regime, real or presumptive, without exposing themselves to the risks inherent in allowing the hostility to be expressed and enmity openly declared. This policy would naturally result in the victimization of innocent people based solely on the assumption of enmity by association, but from their record of activities in power it is clear that such considerations would not have restrained the Thirty.92 We shall now consider the third possible reading of Aeschines 3.235 noted above, which depends upon an editorial emendation of the text, in combination with a variant interpretation of Lysias 12.18. The text of Aeschines translated above reads, oujd∆ ejpi; ta;~ tafa;~ kai; ejkfora;~ tw'n teleuthsavntwn ei[wn tou;~ proshvkonta~ 91 Cf. Bearzot (1997) 112. 92 Consider, for example, the cavalier attitude of Critias toward the numerous casualties of the regime, as recorded by Xenophon: “Councillors, if any of you thinks that more men are dying than the occasion requires, he should consider that these things happen wherever constitutions are in the process of change; and here necessity dictates that those who convert the constitution to oligarchy have the largest number of enemies, because our city is the most populous of all Greek cities and the dêmos has been brought up in freedom for the longest time” (Xen. Hell. 2.3.24). Such a mindset accords perfectly with Lysias’ characterization of the oligarchs (albeit the Ten, not the Thirty) as unconcerned with those who had died or would die (oujd∆ oiJ teqnew'te~ aujtou;~ ejluvpoun oujd∆ oiJ mevllonte~ ajpoqanei'sqai, § 56).

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paragenevsqai. While some editors print this clause as written93 on the strength of the unanimous agreement among the manuscripts of Aeschines (save the substitution of paragiv〈g〉nesqai for paragenevsqai in some),94 others bracket or delete the words tafa;~ kaiv, resulting in a passage that would be translated “did not allow the relatives of the dead to be present at their funeral processions,” with no reference to burials.95 Neither syntax nor style necessitates such an emendation. Since burial and procession are both components of the Athenian funeral and thus form a semantic unit, kaiv joining tafav~ and ejkforav~ is admissible; Aeschines need not have written, for example, oujd∆ ejpi; ta;~ tafa;~ oujd∆ ejpi; ta;~ ejkforav~. The orator’s compositional placement of burials before processions, which reverses the temporal sequence, is explicable on the grounds of hysteron proteron, a figure employed by Athenian authors “to keep a process they wish to be considered as a whole” – such as the stages of a funeral – “from being broken up into its successive parts.”96 Finally, the presence of tafav~ enhances the alliteration of the passage, adding to the repetition of tau (ta;~ tafa;~...tw'n teleuthsavntwn) that precedes a similar play on pi (proshvkonta~ paragenevsqai). Given these facts, there is no compelling reason to emend the passage by removing tafa;~ kaiv. If, however, the proponents of emendation are correct, this passage, joined with an interpretation of Lysias 12.18 that differs from the one adopted here, would suggest that the Thirty kept an even tighter rein on their victims’ obsequies than has been depicted above. Such a conclusion relies on a restrictive reading of Aeschines; namely, that in writing ejpi; ta;~ ejkfora;~ tw'n teleuthsavntwn Aeschines meant that the tyrants excluded relatives of the deceased only from the ekphora (and possibly, by implication, from the prothesis), while permitting them to attend the burial (taphê). As noted above (p. 178 n. 89), some readers of Lysias 12.18 posit the Thirty, rather than Polemarchus’ family and friends, as the referent of misqwsavmenoi and the subject of prou[qento; if this is the case, then the Thirty rented the hut and conducted Polemarchus’ prothesis. Lysias does not mention an ekphora of his brother’s body but goes directly from the prothesis to the burial, to which Polemarchus’ friends made contributions. If Lysias’ silence regarding a funeral procession implies that Polemarchus did not have one, then Polemarchus’ funeral conforms to the emended account of Aeschines: the Thirty laid out Polemarchus’ body; no customary ekphora took place; and Polemarchus’ friends and family were only present at the final stage of the funeral, the taphê. The tyrants would have seen obvious benefits in imposing such restrictions on the funerals of the men they executed. By conducting the prothesis themselves rather than allowing the relatives of the deceased to do so in their homes, they would have spared themselves the cumbersome necessity of monitoring a number of private households simultaneously: if the traditional figure of 1,500 victims is correct, simple mathemat93 Franke (1879) 190; Richardson (1889) 225; Martin-de Budé (1928–52) 2.109. 94 Dilts (1997) 307 (app. crit.). 95 The emendation originates with Weidner (1878) and is accepted by Adams (1919) 492; BlassSchindel (1978) 278; and Dilts (1997) 307, followed by Carey in his translation (Carey [2000] 14, 244). 96 Cooper (1998) 2.1337.

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ics demands that, over their eight-month reign, the Thirty averaged over six executions per day. (We shall encounter in the next chapter a specific example of multiple coincident executions in Lysias’ Against Agoratus.) It was unquestionably easier to monitor and control burials, which were both public and stationary, than private protheseis and mobile processions. By removing the relatives and friends of the dead from two-thirds of the traditional funerary process, the tyrants would have laid themselves open to even more reprehensible charges of impiety; yet by allowing mourners to attend the taphê they could at least pay lip-service to the custom of the city: they permitted their enemies traditional burial; they were not so many latter-day Creons. However, another previously-discussed passage in the Against Eratosthenes decisively contradicts this scenario. In § 87 Lysias asserts that, under the Thirty, “it was a fearsome thing (deinovn) to go to the funeral procession (ejkforavn) of the dead” (above, p. 179: emphasis mine). Risk requires possibility. Since Lysias is making a general statement, we must conclude that the picture presented above on the basis of alternative readings of Aeschines and Lysias did not represent a universal, nor even a consistent, policy of the Thirty; at most, it could have been applied ad hoc, in the cases of executed men whose families and supporters were seen as especially hostile or potentially dangerous to the regime. Given his family’s wealth and connections (above, pp. 153–54), Polemarchus certainly would have qualified for membership in this category, and so in his case the tyrants might reasonably have taken these additional precautions. The state of survival of the Lysianic corpus allows us to end our discussion of the Thirty’s interference with traditional Athenian burial customs by again noting parallels with the traditional story of the Seven against Thebes. Less than two decades after his prosecution of Eratosthenes, Lysias would explicitly invoke the figure of Polyneices, and would again dilate upon the Athenians’ traditional horror at the violation of funerary norms, in his Funeral Oration, composed for delivery by an Athenian citizen over soldiers killed in action in the Corinthian War.97 It is possible to discern several points of contact between the Thebans’ violation of Greek custom and the Athenian response in the Funeral Oration and the behavior of the Thirty in the Against Eratosthenes. When the Thebans refused burial to Polyneices and others in the wake of their unsuccessful siege of the city, the Athenians considered this an act of impiety because of the pollution of the sacred (iJerw'n de; miainomevnwn tou;~ a[nw qeou;~ ajsebei'sqai, Lys. 2.7;98 cf. 12.99: above, p. 166) and believed that 97 On the authenticity of Lysias 2 see Jebb (1875) 1.206–10 (leaning toward negative); Blass (1887–98) 1.438, 444–47 (negative); Snell (1887) 1.13ff. (positive); Dobson (1919) 92–94 (negative); Connor (1966) 9–10 (guardedly positive); Gernet-Bizos (1989) 1.42–45 (positive); Usher (1999) 350 n. 5 (ambivalent); Todd (2000) 26 (guardedly negative). Thalheim brackets Lysias’ name in his Teubner edition (1913); the OCT editor, Hude, does not (1912). For the date of the speech see Blass (1887–98) 1.437 (387); Snell (1887) 1.19 (387); Dobson (1919) 92 (ca. 394); Gernet-Bizos (1989) 1.43 (post 393: perhaps 392 or 386); Ober (1989) 347 (?392); Edwards (1994) 74 (?392). Jebb (1875) 1.206–7, 210 concludes that the speech was composed as a rhetorical exercise between 380 and 340. On the Athenian institution of the funeral oration see Loraux (1986). 98 Cf. ajsebeiva~, 2.10. Snell (1887) 2.10 suggests that iJerw'n de; miainomevnwn “implies that the Argives had taken refuge at the altars” and “[t]he mivasma consisted in the pollution caused by

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“it was the mark of good men to punish their enemies while they were alive (zw'nta~ tou;~ ejcqrou;~ timwrhvsasqai)” (2.8) but to respect them in death (cf. 12.88, offering the point of view of the dead: above, p. 160). When the Thebans then rejected an Athenian offer to bury the dead, the Athenians marched on Thebes, “believing the war dead worthy of receiving the customary rites” of burial (tou;~ teqnew'ta~ ejn tw'/ polevmw/ ajxiou'nte~ tw'n nomizomevnwn tugcavnein: cf. 12.96: above, p. 179); they resolved to prevent further Theban offenses against the dead and hubris against the gods (i{na mhvketi eij~ tou;~ teqnew'ta~ ejxamartavnonte~ pleivw peri; tou;~ qeou;~ ejxubrivswsin; for the juxtaposition of disregard for men and disrespect toward gods cf. 12.9: above, p. 177) and determined not to return to Attica until Polyneices and the others received the traditional funeral honors (patrivou timh'~) in accordance with “the law of the Greeks” (ÔEllhnikou' novmou) (2.9).99 After defeating the Thebans in battle, the Athenians recovered the disputed corpses and buried them in Attica (2.10).100 A customary and integral part of the Athenian funeral oration consisted of a recounting of the great deeds of the ancient dead, which the speaker offered as exempla to the living.101 Through the repetition in the Funeral Oration of themes employed in the Against Eratosthenes, Lysias emphasizes the pride felt by the Athenian people in their strict observance of traditional burial custom,102 which the Thirty had violated but the subsequent democracy had restored. *** Absent any positive evidence of a verdict in the Eratosthenes case, we cannot reliably gauge the effectiveness of Lysias’ prosecution. However, the position of Lysias’ lawsuit in relation to the Amnesty of 403 is clear. As a former member of the Thirty,

99

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101 102

the presence of the dead bodies.” While this would provide a neat parallel to the death of Theramenes (above, p. 176), such a conclusion is unnecessary; the iJerw'n in question may simply be the rites of burial, whose neglect resulted in pollution (or else miainomevnwn means that the rites were “marred” or “sullied” in their omission). Sophocles (Ant. 1064–90) also describes, as Lysias does here, the effects of omission of burial on both the gods above and those beneath the earth. Cf. [Dem.] 60.8: the ancestors of the Athenians ta; tw'n katoicomevnwn novmim∆ ouj periei'don uJbrizovmena, o{te tou;~ e{pt∆ ejpi; Qhvba~ qavptein ejkwvluen Krevwn. On the universality of Greek burial custom cf. Eur. Supp. 524–27: nekrou;~ de; tou;~ qanovnta~...qavyai dikaiw', to;n Panellhvnwn novmon swv/zwn; see also vv. 301–13 and 365–80 with Allen (2005) 387–88. According to Lysias and Herodotus (9.27.3), they were all buried in Eleusis; Euripides (Supp. 734–59), however, has them buried at Eleutherae, and Plutarch (Theseus 29.5) compromises between the two, with the commanders buried near Eleusis and the rest at Eleutherae. Arist. Rhet. 1396a12–14; Thuc. 2.36; Pl. Menex. 239a–b; Lys. 2.3; [Dem.] 60.3–9; Loraux (1986). The Athenians honored this custom in the breach as well as the observance: a person might commit an offense so grave that he was deemed unworthy of burial in Attica. In the late fifth and early fourth centuries (Xen. Hell. 1.7.22; Lyc. 1.113, 115; see MacDowell [1978] 176–79) this was the rule for individuals convicted of temple robbery (hierosylia) or treason (prodosia: cf. the case of Antiphon and Archeptolemus, p. 176 above). For the dread felt by Athenian litigants facing the prospect of burial abroad see, e. g., Dem. 57.70; Hyp. 1.20 with Whitehead (2000) 148–49.

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Eratosthenes was excluded from the protection of the Amnesty unless he passed his euthynai; and Lysias 12, delivered in the course of Eratosthenes’ review, represents the orator’s determined effort to ensure that Eratosthenes not be included within the scope of the Amnesty. Rhetorical musings on the punishment of the tyrants’ children notwithstanding, Lysias acted in full accord with the terms of the Amnesty in prosecuting Eratosthenes. It would not be long, though, before Athenian litigants attempted to redress wrongs suffered under the Thirty by means whose relation to the letter and spirit of the Amnesty was not as clear.

CHAPTER 7 LYSIAS 13: VENGEANCE RESURGENT Some five years after the euthynai of Eratosthenes at which Lysias prosecuted the former tyrant came the trial of Agoratus (ca. 398),1 who stood accused of serving as an informer under the Thirty Tyrants and in that capacity consigning a number of men to their deaths. The arguments employed by the prosecution in this case, and the fact that the lawsuit was allowed to proceed to trial in the first place, evince an Athenian attitude toward the Amnesty of 403 very different from that on display in the immediate aftermath of the civil war. Using the apagôgê procedure,2 Agoratus’ prosecutors charged him in the death of their kinsman Dionysodorus, who had been executed by the Thirty following a denunciation by Agoratus. Dionysius, the brother of Dionysodorus, filed the apagôgê with the Eleven; at Agoratus’ subsequent trial by jury, another prosecutor, the brother-in-law (WiBr) and first cousin of the victim, delivered a speech composed by Lysias (Lysias 13, Against Agoratus). The speaker of Lysias 13 presents the sequence of events culminating in the death of Dionysodorus as follows. In the winter of 405/4, the Athenians sent Theramenes (who would soon become one of the Thirty Tyrants) to Sparta for the purpose of negotiating a treaty of peace that would end the Peloponnesian War. After an absence lasting several months, Theramenes returned to Athens bearing a Spartan peace offer. A group of prominent Athenian democrats, led by a number of generals and taxiarchs including Dionysodorus,3 confronted Theramenes and voiced opposition to the proposed terms of peace. In response, Theramenes and other proponents 1

2

3

Two passages of the Against Agoratus are crucial to the dating of the speech. (1) At § 56 the speaker cites as precedent the conviction and execution of Menestratus, which occurred “a long time after” (pollw'/ crovnw/ u{steron) Menestratus’ denunciations under the Thirty. (2) At § 83 the speaker anticipates that Agoratus will raise the issue of the delay in prosecution and counters as follows: “Do not accept it if he argues that we are seeking punishment long after the fact (pollw'/ crovnw/ u{steron). For in my opinion there is no statute of limitations (proqesmivan) for offenses of this sort....” The prothesmia for most offenses under Athenian law was five years, and the prosecution would have no reason to bring up the statute of limitations unless it had expired or were on the brink of expiring. Presumably, therefore, Agoratus’ trial took place approximately five years after the death of Dionysodorus. On the date of the Against Agoratus cf. Blass (1887–98) 1.558; Jebb (1875) 1.272; Cloché (1915) 331–32; for an alternative view, placing the speech before 401/0, see Loening (1987) 74; cf. Bearzot (1997) 74–76. The full preserved title of Lysias 13 is Against Agoratus on the endeixis (Kata; ∆Agoravtou ejndeivxew~). However, in describing the process of bringing his lawsuit against Agoratus (§§ 85– 87), the speaker of Lysias 13 never uses the noun e[ndeixi~ or the verb ejndeivknumi, but instead repeatedly and consistently calls the procedure apagôgê. While it is possible that, as in Antiphon 5 (above, p. 124), an endeixis preceded the apagôgê (Jebb [1875] 1.272), it is more likely that ejndeivxew~ represents a copyist’s error (Hansen [1976] 131 n. 2). See the discussion by Bearzot (1997) 66–74. Dionysodorus was probably a taxiarch, not a general: see Frohberger (1882) 69; Blass (1887– 98) 1.553 with n. 5.

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of oligarchy conspired against these leading democrats, suborning Agoratus (PA 177) to serve as their informer. In an effort to portray Agoratus as acting under coercion, which would increase his credibility, the oligarchs set the stage for Agoratus’ denunciations by dispatching Agoratus’ friend Theocritus to a meeting of the Council of 500. Theocritus’ testimony regarding a conspiracy against the state led the councillors to issue a decree ordering the arrest of Agoratus and to dispatch a deputation to enforce the decree. The first attempt to bring Agoratus before the Council was foiled by men who offered to stand surety for Agoratus, but a second embassy from the Council succeeded in carrying out the arrest. When brought before the Council of 500, Agoratus revealed the identities of his sureties, of the leaders of the opposition to Theramenes’ peace treaty, and of certain other Athenian citizens. The men thus denounced by Agoratus, including Dionysodorus, were then apprehended, tried by the Council as the Thirty looked on, and executed (Lys. 13.5–43).

LYSIAS 13 AND THE EP’ AUTOPHÔRÔI REQUIREMENT FOR APAGÔGÊ

Before accepting the apagôgê of Agoratus, the Eleven, under whose jurisdiction the lawsuit fell, insisted that the prosecution include in the written indictment the phrase ejp∆ aujtofwvrw/; this suggests that apprehension of the accused ep’ autophôrôi was by this time a necessary precondition for apagôgê.4 What did it mean, though, to catch someone ep’ autophôrôi? Etymologically, ep’ autophôrôi means “in the very (aujto-) act of theft (cf. fw'r ‘thief’).” By the fifth century (e. g., Ant. 1.3; 5.48), and probably earlier, the phrase had come to mean simply “in the act,” regardless of the nature of the act.5 An English parallel appears in the word “red-handed,” which literally and originally refers to homicide (the perpetrator’s hands being stained with the blood of his victim) but may be used figuratively to describe a person caught in the commission of any wrongful act. In the Against Agoratus, however, Lysias stretches the meaning of ep’ autophôrôi well beyond “in the act.” Prefacing his cross-examination of Agoratus at § 30, the speaker asserts, “I think even Agoratus himself will admit that he listed the names [of his victims]; if not, I will cross-examine him ep’ autophôrôi.” Clearly he cannot mean that he will cross-examine Agoratus in the act of giving a list of names to the Thirty Tyrants, since that act occurred years earlier. Rather, in this instance ep’ autophôrôi must mean “manifestly,” “right here before you jurors.”6

4 5

6

Cf. Hansen (1976) 48; Harris (1994a) 169; contra Carawan (1998) 366. The orators speak of people caught ep’ autophôrôi in the act of theft (Isae. 4.28; Dem. 45.81; Aeschin. 1.91); clothes-stealing (lôpodysia: Aeschin. 1.91); embezzlement (Aeschin. 3.10); homicide (Ant. 5.48; Aeschin. 1.91); conspiracy to commit homicide (Ant. 1.3); receiving bribes (Dem. 19.121; Din. 1.29); sycophancy (Dem. 39.26); perjury (Dem. 45.59); and seduction (Lys. 1.21; Aeschin. 1.91). Harris (1994a). For the fourth-century use of ep’ autophôrôi meaning “manifestly” cf. Aeschin. 2.88: “Would you excuse me, Athenians, if...I demonstrated that the remainder of his accusation concerning Cersobleptes is manifestly (ejp∆ aujtofwvrw/) false?”

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The interpretation of ep’ autophôrôi implied by § 30 is expressly advocated later in the speech, when the speaker endeavors to rebut Agoratus’ contention that the phrase does not apply to him: dokou'si d∆ e[moige oiJ e{ndeka oiJ paradexavmenoi th;n ajpagwgh;n tauvthn...sfovdra ojrqw'~ poih'sai Dionuvsion th;n ajpagwgh;n ajpavgont∆ ajnagkavzonte~ prosgravyasqai tov ge ejp∆ aujtofwvrw/: h] pw'~ oujk a]n ei[h 〈o}~〉 prw'ton me;n ejnantivon pentakosivwn, ei\ta pavlin ejnantivon ∆Aqhnaivwn aJpavntwn ajpogravya~ tina;~ ajpokteivneie kai; ai[tio~ gevnoito tou' qanavtou; ouj ga;r dhvpou tou'to movnon oi[ei to; ejp∆ aujtofwvrw/, ejavn ti~ xuvlw/ h] macaivra/ patavxa~ katabavlh/, ejpei; e[k ge tou' sou' lovgou oujdei;~ fanhvsetai ajpokteivna~ tou;~ a[ndra~ ou}~ su; ajpevgraya~: ou[te ga;r ejpavtaxen aujtou;~ oujdei;~ ou[t∆ ajpevsfaxen, ajll∆ ajnagkasqevnte~ uJpo; th'~ sh'~ ajpografh'~ ajpevqanon. oujk ou\n 〈oJ〉 ai[tio~ tou' qanavtou, ou|to~ ejp∆ aujtofwvrw/ ejstiv; tiv~ ou\n a[llo~ ai[tio~ h] su; ajpogravya~; w{ste pw'~ oujk ejp∆ aujtofwvrw/ su; ei\ oJ ajpokteivna~; It seems to me that the Eleven who accepted this apagôgê acted entirely correctly in compelling Dionysius, when he brought the apagôgê, to add “ep’ autophôrôi.” How could Agoratus not be ep’ autophôrôi? By denouncing people first in the presence of five hundred people and then in the presence of all Athenians, he killed them and caused their deaths. Certainly you don’t think, Agoratus, that it is only ep’ autophôrôi if someone strikes a person with a club or a dagger and knocks him down, since then, by your reasoning, it will appear that nobody killed the men whom you denounced, since nobody struck them or cut their throats: they were compelled to die by your denunciation. Is not the person responsible for a death ep’ autophôrôi? Who, then, is responsible other than you, who made the denunciations? And so how are you, the killer, not ep’ autophôrôi? (§§ 86–87)

As is evident from § 85, the speaker expected Agoratus to assert in his defense that he was not apprehended ep’ autophôrôi, as his arrest warrant stated; the speaker’s argument indicates that, as we would expect, Agoratus interpreted the phrase strictly, as meaning “in the act,” and on that basis asserted that his apagôgê had been carried out improperly. The interpretation of the phrase ep’ autophôrôi and its resulting impact on the propriety of the apagôgê of Agoratus was one of two key questions of law in dispute at Agoratus’ trial, the other being the relationship of the prosecution of Agoratus to the Amnesty of 403 (below, pp. 192–200). Once the prosecution had amended the arrest warrant to include these two crucial words, the Eleven had permitted Agoratus’ arrest and trial, but the real test would come when the jury rendered its verdict. The logical contortions Lysias is compelled to engage in on this point demonstrate that Agoratus had by far the easier argument. According to the traditional interpretation, Agoratus was not apprehended ep’ autophôrôi: he was arrested some five years after the fact and therefore objected on procedural grounds that he was not liable to apagôgê.7 Since the interval between act and arrest was undeniable, Lysias had to advance an alternative definition of ep’ autophôrôi that included the case of Agoratus. He accordingly transfers the referent of the phrase from Agoratus’ arrest, where the defense wished to locate it, to the act of denunciation itself: the speaker argues that Agoratus qualifies as ep’ autophôrôi because he publicly and manifestly made denunciations that led to executions. The Council of 7

Note, though, that Agoratus apparently did not protest that apagôgê was an improper procedure for the prosecution of homicide, as Euxitheus had in Antiphon 5 (see chapter 4). By Agoratus’ trial, therefore, apagôgê for homicide was clearly recognized as legal, however rarely it was employed.

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500 and the Assembly witnessed Agoratus in the act of denouncing his victims; thus Agoratus was detected ep’ autophôrôi in the commission of a culpable act. The speaker then proceeds to argue that the designation ep’ autophôrôi applies to anyone who is responsible for a death, whether the culprit kills with his own hand or by informing against his victim. Thus, while Agoratus advocates a traditional strict interpretation of ep’ autophôrôi as referring to the proximity of the arrest to the act in question – was he arrested in the act of denunciation? – Lysias has his client argue that the phrase refers to the manifest nature of the act, and that Agoratus’ denunciations killed his victims just as obviously as a blow from a club or a knife. The trial of Agoratus may have been a landmark case in the use of apagôgê for homicide, much as the trial of Euxitheus had been (above, p. 124). The Athenians did not completely abandon the traditional interpretation of the phrase ep’ autophôrôi with regard to apagôgê. Seducers and thieves, as well as killers, were liable to apagôgê if they were apprehended ep’ autophôrôi; and while the definition of ep’ autophôrôi in the context of theft seems to have had some latitude, including individuals apprehended in possession of stolen goods as well as those caught in the act of stealing,8 the evidence suggests that in cases of seduction ep’ autophôrôi meant “in the act,” even in the fourth century. In Lysias 1, On the Killing of Eratosthenes, the speaker, Euphiletus, after being apprised that his wife has been conducting an affair with Eratosthenes, orders a slave to “show these things to me ep’ autophôrôi,” explaining, “I have no need of words; rather, I need the deed to be evident (to; e[rgon fanero;n genevsqai), if in fact this is the case” (§ 21). That is, Euphiletus intends to catch his wife and her lover in the act of intercourse; this is how his slave understands him, and several days later Euphiletus, with the assistance of the slave and some friends, successfully carries out the plan. In the case of seduction, then, ep’ autophôrôi means “in the act,” not simply “manifestly” or “obviously.” Having apprehended Eratosthenes ep’ autophôrôi, Euphiletus could have arrested him by apagôgê but chose instead to kill him, relying on Draco’s lawful homicide statute, which empowered an individual to kill a man found in illicit sexual congress with his wife, mother, sister, daughter, or concubine kept for the procreation of free children (Dem. 23.53 [lex]). Although this section of Draco’s law dealt with self-help killing, not apagôgê, it may well have influenced how Athenians interpreted the phrase ep’ autophôrôi with regard to the apagôgê of a seducer. Draco permitted the slaying of a man found ejpiv, literally “on,” a woman belonging to one of the categories specified above; and we may conjecture that later Athenians imported this Draconian requirement as a necessary condition for the apagôgê of a seducer. In the Classical period, therefore, Athenians did not completely discard the strict interpretation of ep’ autophôrôi as “in the act,” but they did relax its meaning with respect to homicide. This is evident not only in the case of Agoratus but also in Demosthenes’ discussion of apagôgê for homicide in the Against Aristocrates (above, pp. 128–31). Demosthenes states that a person may prosecute a killing by apagôgê “if he sees the killer circulating in the temples or around the agora” (Dem. 8

Harris (1994a).

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23.80). Nowhere does he mention the ep’ autophôrôi requirement, although we know that it continued to be in force: Aeschines includes apprehension ep’ autophôrôi as a requirement for the apagôgê of killers, as well as other offenders, in the Against Timarchus;9 and Demosthenes himself refers elsewhere (45.81) to the hypothetical apagôgê of a thief caught ep’ autophôrôi. Demosthenes could hardly have been aware of the ep’ autophôrôi requirement for the summary arrest of a thief but unaware of the same requirement for the summary arrest of a killer. Why, then, does he omit to mention it in his discussion of apagôgê for homicide in the Against Aristocrates? It may be that, while Demosthenes does not state the ep’ autophôrôi requirement explicitly, he paraphrases it in explaining that a person may initiate an apagôgê “if he sees the killer circulating in the temples or around the agora”; that is, arresting a killer in a temple or in the agora qualified as apprehension ep’ autophôrôi. On this reading, then, Demosthenes explains the ep’ autophôrôi requirement without using the actual phrase. If this is the case, then by Demosthenes’ time ep’ autophôrôi in the context of homicide had an even broader significance than the meaning “manifest(ly)” advocated in Lysias 13: a suspected killer could qualify as being apprehended ep’ autophôrôi if he was caught frequenting temples or the agora after committing an act justiciable by apagôgê, and so the meaning of ep’ autophôrôi might range beyond the manifest commission of an offense to include simple appearance in public after the commission of the offense. Demosthenes, then, may well have avoided using the phrase ep’ autophôrôi in discussing apagôgê for homicide in order to avert confusion of the looser definition employed in connection with homicide with the stricter standard applied to seduction and theft. We should remember, though, that Demosthenes’ and Aeschines’ comments on apagôgê postdate the Agoratus case by half a century or more. In Lysias 13, the substance of the prosecution’s charge and the grounds for the apagôgê were not that Agoratus had been caught trespassing upon forbidden areas such as temples or the agora, but that he had manifestly killed Dionysodorus by informing against him. That is, Agoratus was prosecuted not for acts committed after an alleged killing but for the killing itself.10 As we discern from his prosecutor’s counterarguments, Agoratus advocated a strict interpretation of ep’ autophôrôi, according to which he was immune to apagôgê since he was apprehended not in the commission of the alleged offense but years afterward (Lys. 13.83, 85). Agoratus’ emphasis of this point suggests that he placed considerable confidence in the expectation that his interpreta9 Aeschin. 1.91: tiv~ ga;r h] tw'n lwpodutw'n h] tw'n kleptw'n h] tw'n moicw'n h] tw'n ajndrofovnwn... lavqra/ de; tou'to prattovntwn, dwvsei divkhn; kai; ga;r touvtwn oiJ me;n ejp∆ aujtofwvrw/ aJlovnte~, eja;n oJmologw'si, paracrh'ma qanavtw/ zhmiou'ntai, oiJ de; laqovnte~ kai; e[xarnoi gignovmenoi krivnontai ejn toi'~ dikasthrivoi~.... I adhere to the view of Hansen (1976) 44–45 that Aeschines is cataloguing the offenses justiciable by apagôgê; but see contra Gagarin (1979) 317–22; Harris (1994a) 180; Fisher (2001) 224–26. 10 Bearzot (1997) 81; Carawan (1998) 362–63; cf. MacDowell (1963) 130ff.; Loening (1987) 73; Wolpert (2002b) 61. While we might expect Lysias to address the killing first and foremost even if the technical offense were Agoratus’ violation of prohibited space, the fact that he never mentions Agoratus’ presence in temples or the agora compels the conclusion that Agoratus was arrested and tried for homicide per se, not for violating restrictions on the movements of accused killers.

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tion of ep’ autophôrôi as “in the act” would prove persuasive to his jury and thus help to secure his acquittal. The Eleven, to be sure, had at least tacitly endorsed a broader interpretation of ep’ autophôrôi in first demanding that Dionysius add the phrase to the arrest warrant and then allowing the lawsuit to proceed to trial, but the real decision on the applicability of the term to Agoratus was made by the jury in its verdict, which, unfortunately, we do not know. Nonetheless, the Eleven’s acceptance of the apagôgê of Agoratus and Agoratus’ resulting argument against the prosecution’s wider interpretation of ep’ autophôrôi and in favor of the stricter standard suggest that Agoratus’ case, like the trial of Euxitheus, marks a broadening of the use of apagôgê against suspected killers. In Antiphon 5, Euxitheus had objected to the use of apagôgê to prosecute an alleged homicide, asserting that the procedure had never before been employed for that purpose (above, p. 123). Significantly, Euxitheus does not mention an ep’ autophôrôi requirement; presumably no such requirement existed at the time of his trial, since if it had, Antiphon would hardly have passed up the opportunity to object that his client could not have been caught “in the act” for the simple reason that the body of the alleged victim had never been found. In Lysias 13 the situation is reversed. As far as we can tell from the speaker’s counterarguments, Agoratus did not question the procedural validity of apagôgê against suspected killers, but rather contended that he did not fall into the category of killers who could be prosecuted by apagôgê, since he was not apprehended ep’ autophôrôi. Not only the dispute between Agoratus and his prosecutors over the correct interpretation of this phrase, but the very circumstances of its inclusion in Agoratus’ indictment, suggest that the broad definition of ep’ autophôrôi proposed by Lysias and his clients was a relative novelty. Dionysius had not written ep’ autophôrôi into the indictment of his own accord but had been compelled to do so by the Eleven. While the speaker asserts, in transparent desperation, that the Eleven forced the amendment as a favor to the prosecution, it is clear that the opposite was true: in actuality, the ep’ autophôrôi requirement was a hurdle imposed by the Eleven that the prosecution had to surmount,11 and they attempted to do so by distorting the meaning of the phrase in such a way that it could be broad enough to include Agoratus. MacDowell argues that if, at the time of Agoratus’ trial, ep’ autophôrôi in the context of homicide was taken to mean “in the act,” Lysias’ attempt to assert the vaguer definition “manifestly” would be “absurd.”12 Absurd, perhaps, but necessary: Lysias knew that Agoratus would attack the prosecution on this point, and therefore he had to assert the relevance of the phrase however he could and hope that the jurors’ enduring desire to avenge their sufferings under the Thirty would impel them to latch on to his alternative definition as an excuse to convict. The litigants’ arguments concerning the meaning of ep’ autophôrôi evidenced in Lysias 13 thus suggest that, at the time of Agoratus’ trial, Athenians still generally understood ep’ autophôrôi to denote proximity to an offense; in the case of homicide, ep’ autophôrôi usually meant “in the act.” Motivated by the necessity to in11 Carawan (1998) 366. 12 MacDowell (1963) 133; cf. Loening (1987) 77.

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clude Agoratus within the scope of the term, Lysias and his clients asserted to the contrary that ep’ autophôrôi meant “manifestly, clearly, obviously.”13 While we cannot gauge the effectiveness of Lysias’ argument with any accuracy, since the jury’s verdict is not known, several factors suggest that the definition of ep’ autophôrôi proposed by the prosecution in Lysias 13 set a precedent for a broader interpretation of the term,14 at least with regard to apagôgê for homicide.15 The fact that Lysias published the speech is in itself significant. As a logographer seeking continued patronage, he is more likely to have circulated a winning speech than a losing one, and at the least it is probable that the Against Agoratus did not fail spectacularly. Moreover, Demosthenes’ discussion of apagôgê for homicide in the Against Aristocrates (above, p. 128) indicates that, by the middle of the fourth century, the Athenians had relaxed and expanded the meaning of ep’ autophôrôi well beyond its fifth-century significance of “in the act”; and the Agoratus case and the delivery of Lysias 13 shortly after the turn of the century may well have been the landmark event that set this expansion in motion. Lysias’ argument against the traditional definition of ep’ autophôrôi in the Against Agoratus calls to mind the observation made by Thucydides in his history 13 Cf. Bearzot (1997) 82. 14 On the value of precedent in Athenian law see above, p. 57 n. 97. 15 The discussion of the fate of Menestratus (§§ 55–57) raises the possibility that the prosecution of Agoratus by apagôgê for denunciations that led to executions under the Thirty may itself have had at least a partial precedent. According to Lysias, Menestratus had been, like Agoratus, an informer during the oligarchy, and his denunciations had also caused a number of deaths. After the restoration of democracy but before the trial of Agoratus, Menestratus was tried as a killer in a jury-court, convicted, and condemned to death by apotympanismos (uJmei'~ de; pollw'/ crovnw/ u{steron labovnte~ [scil. to;n Menevstraton] ejn dikasthrivw/ wJ~ ajndrofovnon o[nta, qavnaton dikaivw~ katayhfisavmenoi tw'/ dhmivw/ parevdote kai; ajpetumpanivsqh). The detail that Menestratus’ trial occurred in a dikastêrion rather than in one of the dedicated homicide courts, and possibly the use of the phrase wJ~ ajndrofovnon o[nta (below, p. 211), point to the conclusion that his prosecutors employed apagôgê and/or one of the procedures related to it, endeixis or ephêgêsis. If Menestratus was prosecuted by apagôgê for the deaths he caused as an informer under the Thirty, his case would constitute a direct, relevant, and recent precedent for the trial of Agoratus by apagôgê, and the definition of ep’ autophôrôi may well have been at issue in the lawsuit. However, the vagueness of Lysias’ description of Menestratus’ trial and conviction weighs against this supposition. While the context implies that Menestratus was charged with the killings of the men he had informed against in 404/3, Lysias does not say so explicitly; Agoratus’ jury is told only that Menestratus was an informer under the oligarchy and was later tried, convicted, and executed for homicide. Possibly the killing that gave rise to Menestratus’ trial occurred after the democracy was restored, and Lysias’ omission of this fact is an attempt to telescope the events and thereby invite the jurors falsely to tie Menestratus’ condemnation to his activities under the tyrants (cf. Cloché [1915] 341–42). If this is the case, then the ep’ autophôrôi requirement for apagôgê may not have been an issue at Menestratus’ trial: for example, we may posit a scenario in which Menestratus was apprehended in the act of killing, was taken immediately before the Eleven, where he contested his guilt, and was then tried in a jurycourt and convicted. This hypothesis would also explain why Lysias mentions Menestratus only here and does not cite him later in the speech (at §§ 85–87) as an example of apagôgê employed after the fact against an informer, which would have aided significantly in validating the prosecution of Agoratus and rebutting Agoratus’ anticipated argument that, as an informer, he was not subject to apagôgê.

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of the Peloponnesian War regarding the mutability of words in times of civil strife. People engaged in stasis, notes Thucydides, arbitrarily change the meanings of words to suit their adversarial circumstances: irrational audacity becomes partisan bravery, prudent delay becomes specious cowardice, and so on (Thuc. 3.82). By the time of the Agoratus case, open civil strife in Attica was several years in the past, but vehement and lasting enmity between former men of the Peiraeus and men of the city still festered under the surface and occasionally broke through, as in the prosecution of Agoratus. In the course of seeking to punish Agoratus for acts he had committed while stasis still raged, Lysias and his clients distorted the meaning of ep’ autophôrôi: “in the act” became “manifestly.” Lysias’ attempted misdirection of the jurors to the effect that ep’ autophôrôi should be construed as referring to the manifest perpetration of an act rather than the immediacy of the perpetrator’s arrest is no less blatant than the definitional reversals catalogued by Thucydides. Thus, in keeping with Thucydides’ observation, semantic vacillation was employed as a weapon in Athenian partisan politics even after the civil war ended; and Lysias 13 validates the historian’s prediction that such verbal transformations not only attended past eruptions of stasis but would continue to do so as long as human nature remained constant. Despite the Amnesty of 403, not all Athenians had buried the hatchet: some had simply taken it from the battlefield to the courts.

THE PROSECUTION OF AGORATUS AND THE AMNESTY OF 403

This brings us to the issue of the relationship between the prosecution of Agoratus and the Amnesty of 403. At trial, the prosecution admitted that Agoratus’ only role in the death of their kinsman Dionysodorus had been that of informer; nowhere in Lysias 13 does the speaker allege that Agoratus committed any act related to Dionysodorus’ death other than giving the name of Dionysodorus, among others, to the Council of 500. The lawsuit against Agoratus therefore appears at first sight to represent a blatant contravention of the Amnesty, which immunized from legal liability for homicides committed under the Thirty all those who had not killed with their own hands, and offered explicit protection to informers (above, pp. 142–43). The beginning of Lysias 13, in which the speaker lays out the grounds for his accusation, is remarkable for its patent contradiction of the Amnesty: Dionusovdwron ga;r to;n khdesth;n to;n ejmo;n kai; eJtevrou~ pollouv~, w|n dh; ta; ojnovmata ajkouvsesqe, a[ndra~ o[nta~ ajgaqou;~ peri; to; plh'qo~ to; uJmevteron, ejpi; tw'n triavkonta ajpevkteine, mhnuth;~ kat j ejkeivnwn genovmeno~. For during the reign of the Thirty [Agoratus] killed my brother-in-law Dionysodorus and many others whose names you will hear, men who were good to you the people, by turning informer against them. (§ 2)

The speaker states with perfect clarity that he is bringing Agoratus to court for his role in the death of Dionysodorus as an informer (mhnuthv~) under the Thirty (ejpi; tw'n triavkonta). On first appearance, therefore, it was evident from the outset of the trial that the Amnesty protected, or should have protected, Agoratus: the prosecu-

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tion admitted, with no hint of reservation, that the defendant’s actions fell under both the substantive and the temporal scope of the Amnesty. Rather than concealing or soft-pedaling Agoratus’ status as an informer under the oligarchy, Lysias foregrounds the fact throughout the speech: Agoratus is repeatedly described as an informer (e. g., §§ 18, 19, 48), and at several points the speaker gives detailed descriptions of Agoratus’ denunciations of Dionysodorus and others. Understandably, the prosecution anticipates that Agoratus will stake his defense on the Amnesty even more than on the ep’ autophôrôi clause in his arrest warrant (§ 77). They therefore seek to disqualify Agoratus from the protection of the Amnesty, on the grounds that both they and Agoratus belonged to the democratic faction of the Peiraeus when the oaths of reconciliation were sworn. By the speaker’s reasoning, the Amnesty does not cover Agoratus, because the oaths formed a bilateral compact between the men of the city and the men of the Peiraeus, not an internal compact among the men of the Peiraeus: “the defendant was in Peiraeus, as was I and Dionysius and all these men seeking to punish him. Therefore, the oaths do not stand in our way, since the men in the Peiraeus swore no oath to the men in the Peiraeus” (§§ 89–90). Commentators have traditionally attacked Lysias for this bit of reasoning. Blass remarks simply that “the lawsuit was against the Amnesty.”16 Jebb objects that “the sophism about the Amnesty – that it was not meant to hold good between two men of the same party – is a curious exception to the usual tact of Lysias in argument.”17 Friedrich Ferckel goes even further, labeling the prosecution of Agoratus “a sabotage of the Amnesty.”18 According to A. P. Dorjahn, the lawsuit did not violate the letter of the Amnesty, but Lysias chose the wrong argument: during the triumphant procession from the Peiraeus to Athens, the democrats had drummed Agoratus out; therefore Agoratus was neither a man of the city nor a man of the Peiraeus, and hence excluded from the Amnesty.19 Recently, however, Edwin Carawan has argued in support of the interpretation of the terms of the Amnesty advocated in Lysias 13, concluding that “[f]ar from violating the Amnesty, [Agoratus’ prosecutors] were adhering to it by forgoing the demand for immediate execution” and submitting the case to trial.20 Carawan’s reading depends on a more limited interpretation of the words mh; mnhsikakei'n in the oaths sworn by the Athenians than that advocated here (above, p. 144): according to Carawan the promise mê mnêsikakein was not meant to obstruct litigation in general but did bar “arrest by lethal force and execution without trial.” This argument has some attractive features: it excuses the Eleven for admitting the apagôgê of Agoratus, and it even justifies the prosecutors’ initial omission of the phrase ep’ autophôrôi from the warrant, since, according to Carawan, the inclusion of ep’ autophôrôi would have meant that the prosecutors were attempting to have Agoratus executed without trial. If, however, we adopt the broader 16 Blass (1887–98) 1.555. 17 Jebb (1875) 1.275; Cloché (1915) 336–38 and Bearzot (1997) 83 also label Lysias’ argument sophistic, and Bearzot adds “laughable.” 18 Ferckel (1937) 130, cited by Dorjahn (1946) 49. 19 Dorjahn (1946) 48. 20 Carawan (1998) 370.

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reading of mê mnêsikakein advocated here, such an argument merely transfers responsibility for violating the Amnesty from Agoratus’ prosecutors to the Eleven. We should note, too, that any apagôgê could result in immediate execution without trial if the individual accused and arrested admitted his guilt; if, on the other hand, he contested liability, a trial was granted automatically, as in the case of Agoratus. In order to assess the possible violation of the Amnesty committed in the prosecution and trial of Agoratus, we must revisit what we know of the Amnesty’s actual terms. The sources vary slightly, but significantly, in regard to who exactly qualified for the protection of the Amnesty of 403. The author of the Ath. Pol. writes that, under the Amnesty, “no one was permitted to bear malice for past actions against anyone” (tw'n de; parelhluqovtwn mhdeni; pro;~ mhdevna mnhsikakei'n ejxei'nai, 39.6 [emphasis mine]: above, p. 142) except the leaders of the late oligarchy. If this was the case, then the majority view would be correct: Lysias’ attempt to exclude Agoratus from the Amnesty was unfounded, since the Amnesty covered everyone without regard to factional affiliation during the oligarchy; and therefore the prosecution of Agoratus violated the Amnesty of 403.21 According to Andocides, however, the oath of reconciliation featured the clause “I will not bear malice for past actions against any citizen (kai; ouj mnhsikakhvsw tw'n politw'n oujdeniv) except the Thirty, the Ten, and the Eleven” (Andoc. 1.90 [emphasis mine]: above, p. 144). Neither the Ath. Pol. nor Andocides supports Lysias’ contention that the oath was sworn reciprocally by the oligarchs of the city and the democrats of the Peiraeus. Presumably, therefore, in his arguments on the nature of the Amnesty in the Against Agoratus Lysias has incorrectly (and in all probability intentionally) conflated the oaths comprising the Amnesty with the treaty ending the civil war, which was concluded between the two belligerents: the men of the city and the men of the Peiraeus. Nonetheless, if Andocides’ quotation of the oath is accurate, the Amnesty may not have included Agoratus, and it definitely did not include him if some of Lysias’ other comments regarding Agoratus’ status are correct. While the Ath. Pol.’s paraphrase of the terms of the Amnesty is all-inclusive, apparently covering everyone except the Thirty and their immediate subordinates, according to Andocides the Amnesty protected Athenian citizens only. Of these two sources Andocides is more likely to be correct, since he quotes the actual terms of the oath and is closer to the event than the author of the Ath. Pol. If Andocides is right and the Amnesty of 403 was limited to citizens, then, according to Lysias’ account of Agoratus’ status, Agoratus was disqualified from coverage by the Amnesty. Lysias goes to great lengths to demean Agoratus’ origins: according to the speaker, Agoratus is “a slave and the descendant of slaves,” the son of a man named Eumares who was owned by Nicocles and Anticles (§§ 18, 64). While Athenian litigants commonly leveled allegations of servile status at their opponents, and in many cases such accusations are mere rhetorical commonplaces,22 the evidence suggests that in this case Lysias is at 21 Cloché (1915) 337–38. 22 E. g., Demosthenes’ famous attack on the parentage of Aeschines (Dem. 18.130): “Well, just yesterday or the day before he became an Athenian citizen and a politician at the same time, and by adding two syllables he made his father Atrometus instead of Tromes, and his mother, in all

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least partially correct: Agoratus was not an Athenian citizen, although he was not a slave but a metic. Agoratus himself contended that the Assembly had granted him citizenship as a reward for his role in the assassination of Phrynichus in 411 (§ 70: above, p. 126), and (at least according to Lysias) he played the role of a citizen in the Assembly and in the courts as both juror and litigant (§ 73). But Lysias’ arguments to the contrary are persuasive. As the prosecution notes, the Thirty would hardly have released unpunished a man who had assassinated an oligarch of the previous regime (and a friend and associate of many members of the current junta) and had been honored on that account by the dêmos (§§ 73–74). Even more convincing than this argument from probability is Lysias’ explicit refutation of Agoratus’ claimed participation in the death of Phrynichus, which is corroborated by independent evidence. Lysias credits Thrasybulus of Calydon with the slaying of Phrynichus and implicates Apollodorus of Megara in the conspiracy; he denies any involvement on Agoratus’ part (§§ 70–71). Both literary and epigraphical sources support Lysias’ version of the assassination of Phrynichus over Agoratus’. In a speech delivered in 331 or 330,23 Lycurgus ascribes responsibility for the killing of Phrynichus to Apollodorus and Thrasybulus (Lyc. 1.112). Of these two, the surviving epigraphic record privileges Thrasybulus. At § 71 of the Against Agoratus the speaker cites a decree that, he maintains, disproves Agoratus’ contention that he took part in the assassination of Phrynichus and that the Athenians enfranchised him on that account. The manuscripts of Lysias do not contain the quoted text of the decree, but we may nonetheless possess at least part of what Agoratus’ prosecutor had read out to the court at this point, thanks to the fortuitous preservation of IG I3 102 (Tod [1946–48] no. 86; Meiggs-Lewis [1988] no. 85). This inscription contains a decree and two riders dated to the archonship of Glaucippus (410/09); the decree and the first rider confer honors upon the assassins of Phrynichus. The primary beneficiary is Thrasybulus, who receives Athenian citizenship and additional benefits (lines 6–25). The inscription continues: to;~ [de; a[llo~ hovsoi tovte eu\ ej]poivesan to;n de'mon to;n ∆Aqe[naivon...10...]in kai; ∆Agovraton kai; Kovmona [kai;...6...]o[.]o[....] kai; Si'mon kai; Fili'non ka[i;...8...]a, eujergev[ta]~ ajnagravfsai ejm povle[i ejn stevlei l]iqivnei to;n gram[ma]teva te'~ bole'~. [kai; e[gktesi]n ei\nai aujtoi'~ o|mper ∆Aqenaivoi~, [kai; gepevdo]n kai; oijkiva~, kai; oi[kesin ∆Aqevnesi, [kai; ejpimevl]esqai aujto'n te;n bole;n te;n aijei; b[oleuvosan ka]i; to;~ prutavne~, hovpo~ a]n me; ajdi[ko'ntai... The secretary of the boulê is to inscribe as benefactors on a stone stele on the Acropolis all the others who at that time did well by the dêmos of the Athenians: ...is, Agoratus, Comon, ..., Simus, Philinus, and .... These are to have enktêsis of the same things as Athenians, both of land and of a house, and the right to live in Athens; and the sitting boulê and the prytaneis are to take care of them, lest they be wronged.... (IG I3 102.25–34)

According to the terms of this decree and its first rider, Thrasybulus received Athenian citizenship, while his co-conspirators, including Agoratus, received the right to solemnity, Glaucothea, whom everyone knows was called Empusa [a shape-shifting monster for whom prostitutes were commonly nicknamed: Yunis (2001) 187].” On Lysias’ employment of this topos see Voegelin (1943) ch. 5. 23 On the date of the Against Leocrates see Petrie (1922) xxx; Humphreys (1985a) 219; Harris in Worthington-Cooper-Harris (2001) 159 with n. 1.

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own land and a house in Attica (enktêsis gês kai oikias), a privilege normally reserved for citizens but granted to metics (including Lysias: above, p. 154) under exceptional circumstances. Agoratus and the other co-conspirators were not, however, made citizens. If they were, the grant of enktêsis would be redundant and pointless; moreover, the clause of the decree providing that Agoratus and the others are to receive enktêsis “of the same things as Athenians” (e[gkthsin ei\nai aujtoi'~ w|nper ∆Aqhnaivoi~) clearly indicates a distinction between these honorands and Athenian citizens: while Agoratus and the rest receive privileges normally limited to citizens, they retain their non-citizen status. The designation “benefactors” (eujergevta~), applied to Agoratus and the rest, also marks them as non-citizens: the Assembly regularly conferred the title of euergetês upon persons who, as here, performed meritorious service for the Athenian people but were not part of it. As this inscription relates to the assassination of Phrynichus, names Agoratus, and rebuts Agoratus’ expected assertion of citizenship, it stands a good chance of being the very document cited at Lysias 13.71.24 The main objection to equating IG I3 102 with the decree invoked by Agoratus’ prosecutors concerns the status of Apollodorus. Lysias writes in § 72 that the decree just cited conferred citizenship upon Apollodorus as well as Thrasybulus, but IG I3 102 only mentions Apollodorus in a second rider, passed in response to allegations of bribery regarding a previous decree in his honor. This discrepancy, however, need not present an insurmountable obstacle. IG I3 102 postdates a previous award voted to Apollodorus that presumably (on the basis of Lysias 13.72) included a grant of Athenian citizenship. While this decree does not itself confer citizenship upon Apollodorus, the second rider assumes that such action has been taken. Lysias 13.72 therefore gives a fairly accurate paraphrase of IG I3 102: while the decree did not enfranchise Apollodorus, it does show that he had been enfranchised previously. Furthermore, after mentioning the citizenship granted to Thrasybulus and Apollodorus but denied to Agoratus, the speaker goes on to discuss the problem of venal politicians’ accepting bribes to list individuals as benefactors in their decrees – a topic that bears a close similarity to the motivation behind the second rider to IG I3 102. The inscription, therefore, meets the prosecution’s primary need – to disprove Agoratus’ claim to Athenian citizenship – and (on one view, at least) accords with the description of the decree cited at Lysias 13.71. While the minor discrepancy regarding Apollodorus’ citizenship prevents us from stating with certainty that Agoratus’ prosecutor cited IG I3 102, it is a strong possibility. So, according to the prosecution, Agoratus asserted that the Athenian people had enfranchised him in connection with the assassination of Phrynichus, a claim refuted convincingly by IG I3 102. There is, however, another possibility, which Lysias notably fails to address. In 401/0, a decree moved possibly by Archinus (IG II2 10 = Tod [1946–48] no. 100 = Rhodes-Osborne [2003] no. 4) awarded Athenian citizenship to those metics who had participated in the return of the democrats from Phyle (o{soi sugkath'lqon ajpo; Fulh'~, line 4). As Agoratus claimed in his defense that he had 24 On the proposed equation of the decrees see Tod (1946–48) 1.212–13; Meiggs-Lewis (1988) 262–63; Bearzot (1997) 315–17.

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joined the democrats at Phyle and taken part in the subsequent campaign (ejpi; Fulhvn te w[c / eto kai; sugkath'lqen ajpo; Fulh'~, § 77), the contents of this decree bear directly upon his status at the time of trial and, therefore, his qualification for coverage under the Amnesty. The back of the stele contains the names and occupations of beneficiaries of the decree, but owing to the fragmentary nature of the inscription, it appears that all the names of those to be enrolled in the tribe Erechtheis are missing.25 Agoratus’ prosecutors accuse him of posing as a demesman of Anagyrous (§ 73), and the deme of Anagyrous belonged to the Erechtheid tribe.26 It is therefore possible that Agoratus received Athenian citizenship not as a result of Phrynichus’ assassination in 411/10 but ten years later, for his participation in the return from Phyle. According to Lysias, Agoratus contended that he had participated both in the assassination of Phrynichus and in the return from Phyle, but based his claim of citizenship entirely on the former. In reality, of course, Agoratus could not have maintained that the Athenian people made him a citizen twice, once for his involvement in the killing of Phrynichus and again for his participation at Phyle and afterward. Naturalization only occurs once; if Agoratus was enfranchised by the restored democracy following 411/10, he was not enfranchised by the restored democracy following 404/3, and vice versa. He therefore had to tie his claim to citizenship to one and only one of these events. IG I3 102 proves that Agoratus was not granted citizenship in the wake of Phrynichus’ assassination. Therefore, if the prosecution’s anticipatory rebuttal accurately reflects Agoratus’ claimed source of citizenship, then Agoratus was not an Athenian citizen at the time of his trial and hence was not entitled to the protection of the Amnesty. If, however, Agoratus was actually enfranchised by IG II2 10, then the prosecution’s connection of his citizenship claim to Phrynichus is a red herring that attempts to distort Agoratus’ defense and confuse or distract the jury, and Agoratus was an Athenian citizen and thus included in the Amnesty. However, some of the details of Agoratus’ presence at Phyle advanced by the prosecution provide specific evidence against the supposition that he could have been naturalized after the civil war of 404/3. The speaker contends that when Agoratus approached the democratic force at Phyle, he was rebuffed (§§ 77–79: below, p. 208). In significant contrast to the numerous uncorroborated allegations in the Against Agoratus, he calls a taxiarch as a witness to the event. If this version of events is accurate and the democratic army rejected Agoratus (and even, according to the speaker, tried to execute him), then the same democrats would hardly have enfranchised Agoratus upon their return to power. On balance, therefore, it is more likely that Agoratus falsely claimed to have been naturalized following the first democratic restoration in 411/10. But in either case, Lysias’ recourse to the transparent sophistry that the Amnesty countenanced retributive action between former members of the same faction is significant: it betrays an anxiety that his clients’ 25 The beneficiaries fall into three categories: those who participated in the return from Phyle (v. 4), those who fought at Munychia (v. 7), and those who remained in Peiraeus after the reconciliation (vv. 8, 56–57). The second and third groups of honorands received isoteleia; the first received citizenship, but it appears that the entire first list is missing: see the reconstruction and commentary by Rhodes-Osborne (2003) 20–26. 26 Whitehead (1986) 369.

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citizenship argument may prove insufficient, either because Agoratus can demonstrate that he really is a citizen and is therefore protected by the letter of the Amnesty, or because a jury might apply the spirit of the Amnesty to Agoratus unless given a pretext not to do so. The Amnesty of 403 thus constituted a major element in both the prosecution and the defense at the trial of Agoratus, and judging from its prominence in the arguments of the litigants, it may well have been the most important issue to the trial jurors. The Amnesty probably also influenced the prosecution’s original choice to proceed by apagôgê rather than by dikê phonou, as well as the tenor of Lysias’ argument regarding the definition of the crucial and disputed phrase ep’ autophôrôi. The Amnesty’s limitation of homicide prosecutions to own-hand (autocheir) killers applied, as argued above (p. 142), both to the dikê phonou and to apagôgê; therefore, Agoratus’ prosecutors did not choose the latter procedure over the former because, as has sometimes been maintained, they would have had to demonstrate that Agoratus was autocheir in a dikê phonou but not in an apagôgê.27 Nonetheless, several considerations made apagôgê a more attractive procedure for the prosecution than the dikê phonou. Whereas the dikê phonou was an ancient procedure dating back to Draco and bound by traditions that instilled pride in the Athenians, apagôgê was a considerably more fluid procedure still undergoing development, as evidenced in the recent expansion of apagôgê to suspected killers achieved in the landmark prosecution of Euxitheus.28 Moreover, in order to lodge a dikê phonou, Dionysodorus’ relatives would have had to describe the circumstances of their kinsman’s death, and Agoratus’ involvement would clearly point to a charge of conspiracy (bouleusis), which the Amnesty explicitly disallowed.29 With a dikê phonou, therefore, the breach of the Amnesty represented by the proposed prosecution of Agoratus would have been evident long before trial and might well have impelled the basileus to quash the lawsuit at its outset. In proceeding by apagôgê, however, the prosecution had simply to allege that Agoratus was a “malefactor” (kakourgos) or “killer” (androphonos), and the latter category featured no substantive or procedural distinction between the own-hand killer and the conspirator or accessory. While the Eleven still possessed final authority to accept or reject an apagôgê and could easily have rejected the proposed apagôgê of Agoratus on the grounds that the prosecution had not apprehended him ep’ autophôrôi (in the usual sense of the term), Dionysodorus’ kinsmen presumably (and reasonably) believed that the greater latitude and fungibility of apagôgê gave them a better chance at convincing the Eleven to grant an apagôgê than they had at convincing the basileus to grant a dikê phonou. As it turned out, the Eleven admitted the lawsuit on condition that the prosecution amend its indictment to include the 27 E. g., Carawan (1998) 361. 28 The remarks made above concerning the possible apagôgê of Menestratus (p. 191 n. 15) apply here as well. While, as I have argued, it is unlikely that Menestratus was accused and convicted by apagôgê for delatory activities under the Thirty, if this was in fact the case, the successful apagôgê of Menestratus (of which Agoratus’ prosecutors were clearly aware) will presumably have contributed to the decision to employ apagôgê against Agoratus. 29 Carawan (1998) 361.

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phrase ep’ autophôrôi. Quite possibly the magistrates believed that this would forestall the intended lawsuit, since Agoratus had obviously not been arrested in the act; if so, Dionysodorus’ kinsmen called their bluff and proceeded, opting to take their chances with a jury. Alternatively, the Eleven may simply have decided to pass the buck and, rather than rejecting the lawsuit on their own authority, allow the trial jury to decide whether the prosecution had fulfilled the terms of the indictment. Lysias’ contorted arguments about the meaning of ep’ autophôrôi also reflect his clients’ need to demonstrate that the prosecution of Agoratus accorded with the Amnesty rather than violating it. In the Against Agoratus, as we have seen, Lysias endeavors to replace the circumstantial significance of ep’ autophôrôi (was the suspect apprehended during the commission of the act?) with an aspect of agency (is the suspect manifestly responsible for the act?). This argument allows Agoratus’ prosecutors to equate killing by delation with killing by club or knife: “Certainly you don’t think that it is only ep’ autophôrôi if someone strikes a person with a club or a dagger and knocks him down?” (ouj ga;r dhvpou tou'to movnon oi[ei to; ejp∆ aujtofwvrw/, ejanv ti~ xuvlw/ h] macaivra/ patavxa~ katabavlh/...;, § 87: above, p. 187). The comparison of the informer Agoratus to an own-hand killer indicates that, in response to the limitations imposed on prosecutions for homicide by the Amnesty of 403, Lysias is attempting to assimilate the ep’ autophôrôi clause in Agoratus’ indictment to the autocheir requirement – an argument that, coincidentally, demonstrates that this requirement applied to apagôgê for homicide as well as to the dikê phonou.30 Lysias’ formulation validates both his clients’ use of apagôgê and the jury’s hypothetical vote to convict Agoratus: if the prosecution persuades the jury that Agoratus is ep’ autophôrôi and accordingly eligible for apagôgê, then by the same token he is also autocheir, and his condemnation will not violate the Amnesty. Unfortunately, from the standpoint of logic, this argument not only eliminates the significance of ep’ autophôrôi but vitiates the Amnesty’s restriction on homicide lawsuits. According to Lysias, the alternative to designating Agoratus ep’ autophôrôi in the killing of Dionysodorus and the other generals and taxiarchs executed by the Thirty would be to admit not only that no one was ep’ autophôrôi but that no one killed them (§ 87: above, p. 187). The internal reasoning of this passage thus implies that every killing must be ep’ autophôrôi. Lysias then makes this point explicit by equating the phrase ep’ autophôrôi with responsibility or culpability: “Is not the person responsible for a death ep’ autophôrôi?” (oujk ou\n oJ ai[tio~ tou' qanavtou, ou|to~ ejp∆ aujtofwvrw/ ejstiv;). As someone or something is responsible (ai[tio~) for every death, if we follow Lysias’ definition, every killer is ep’ autophôrôi, and as a result the term loses all significance. This can hardly be what the Eleven had in mind when they compelled Dionysius to include the words ep’ autophôrôi in the indictment of Agoratus; and, in general, it would be utterly senseless for Athenian law to impose the condition that liability to apagôgê hinge upon the suspect’s being ep’ autophôrôi if the phrase had no meaning.31 30 Loening (1987) 78. 31 Lysias’ discussion of the amendment to the indictment, and his anticipation and rebuttal of Agoratus’ argument on this point, demonstrate that the Eleven’s insistence on the inclusion of ep’ autophôrôi stemmed from a concern regarding the substantive content of the allegation, not

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Moreover, if, as Lysias posits, ep’ autophôrôi equals autocheir equals culpability, then the Amnesty’s restriction on homicide trials has no force whatsoever. Limiting prosecutions for homicide to individuals deemed responsible (ai[tio~) for a killing would not have altered Athenian homicide law in the least, as this was the state of the law before the Amnesty. Draco had established a standard of culpability that equated own-hand (autocheir) killing with conspiracy to kill (bouleusis): “the kings are to judge [a man] guilty of (or ‘responsible for’) homicide whether he killed with his own hand or conspired to kill” (dikavzen de; to;~ basileva~ ai[tion fovno e][to;n aujtovceir ktevnant∆ ] e] boleuvsanta, IG I3 104.11–13: above, p. 49). Thus Athenian law already limited prosecutions for homicide to those who bore responsibility for killing and, further, defined what constituted legal responsibility. In equating the ep’ autophôrôi requirement for apagôgê with the autocheir requirement for prosecuting a homicide imposed by the Amnesty of 403, and in asserting that both these requirements were equivalent to bare culpability, Lysias would have the framers of the Amnesty merely reiterating Draco’s definition of homicide rather than imposing restrictions on homicide prosecutions, and this is clearly false. Thus, while Lysias, for obvious reasons, cannot deny the existence of the Amnesty, in order to deny its application to Agoratus he nullifies its regulations governing homicide. For the purposes of Lysias 13, the Amnesty of 403 is a cipher.

PRIVATE ENMITY IN LYSIAS 13 The speaker of Lysias 13 describes the state of enmity between himself and his kin and Agoratus, which arose from the death of his brother-in-law and first cousin Dionysodorus, in terms very similar to those employed by Lysias some five years earlier in the Against Eratosthenes in his effort to achieve vengeance for his brother Polemarchus. While some repetition of arguments may be expected owing to Lysias’ composition of both speeches, the consistencies evident in orations 12 and 13 also demonstrate the durability of the private enmities that resulted from the Thirty Tyrants’ time in power: Lysias evidently felt that the chords he had struck in the Against Eratosthenes bore repeating in the Against Agoratus and would benefit his clients in their quest for revenge. As we shall see, however, the exigencies of the Agoratus case demanded a somewhat different emphasis of the various aspects of enmity than that presented in the prosecution of Eratosthenes.

just the procedural form of the indictment document (that is, adherence to a mere pro forma statutory requirement that the phrase appear in the indictment without consideration of what it meant). Had Dionysius’ original neglect mattered only for the form of the indictment, Lysias need not have mentioned the oversight, let alone devoted so much space to disputing the meaning of ep’ autophôrôi.

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The boundaries of enmity As in the Against Eratosthenes, so in the Against Agoratus the prosecution must first establish the boundaries of enmity between themselves and the defendant; accordingly, the speaker of Lysias 13 introduces his case to the jury as follows: Proshvkei mevn, w\ a[ndre~ dikastaiv, pa'sin uJmi'n timwrei'n uJpe;r tw'n ajndrw'n oi} ajpevqanon eu\noi o[nte~ tw'/ plhvqei tw'/ uJmetevrw/, proshvkei de; kajmoi; oujc h{kista: khdesth;~ gavr moi h\n Dionusovdwro~ kai; ajneyiov~. tugcavnei ou\n ejmoi; hJ aujth; e[cqra pro;~ ∆Agovraton toutoni; kai; tw'/ plhvqei tw'/ uJmetevrw/ uJpavrcousa: e[praxe ga;r ou|to~ toiau'ta, di∆ a} uJp∆ ejmou' nuni; eijkovtw~ misei'tai, uJpov te uJmw'n, a]n qeo;~ qevlh/, dikaivw~ timwrhqhvsetai. Dionusovdwron ga;r to;n khdesth;n to;n ejmo;n kai; eJtevrou~ pollouv~, w|n dh; ta; ojnovmata ajkouvsesqe, a[ndra~ o[nta~ ajgaqou;~ peri; to; plh'qo~ to; uJmevteron, ejpi; tw'n triavkonta ajpevkteine, mhnuth;~ kat∆ ejkeivnwn genovmeno~. poihvsa~ de; tau'ta ejme; me;n ijdiva/ kai; e{kaston tw'n proshkovntwn megavla ejzhmivwse, th;n de; povlin koinh/' pa'san toiouvtwn ajndrw'n ajposterhvsa~ ouj mikrav, wJ~ ejgw; nomivzw, e[blayen. ejgw; ou\n, 〈w\〉 a[ndre~ dikastaiv, divkaion kai; o{sion hJgou'mai ei\nai kai; ejmoi; kai; uJmi'n a{pasi timwrei'sqai kaq∆ o{son e{kasto~ duvnatai, kai; poiou'si tau'ta nomivzw hJmi'n kai; para; qew'n kai; par∆ ajnqrwvpwn a[meinon a]n givgnesqai. It befits all of you, men of the jury, to exact vengeance on behalf of the men who died loyal to you the people, and it befits me not least, since Dionysodorus was my brother-in-law and first cousin. So I have the same enmity (echthra) toward Agoratus here as you the people have. For he committed such deeds that he is hated by me now with good reason and, if the god wills it, he will be justly punished by you. During the reign of the Thirty, you see, he killed my brother-inlaw Dionysodorus and many others whose names you will hear, men who were good to you the people, by turning informer against them. By doing these things he inflicted a great loss upon me and each of Dionysodorus’ relatives individually, and, in my opinion, he inflicted no small harm upon the city as a whole, by depriving it of such men. Therefore, men of the jury, I consider it just and pious both for me and for all of you to exact vengeance to the extent each man can; and if we did this, I think that we would be treated better by both gods and men. (§§ 1–3)

Just as Lysias had done in prosecuting Eratosthenes, the speaker subsumes his own individual case, arising from the death of Dionysodorus, under the general rubric of the damage done to the Athenian people as a whole by the Thirty Tyrants and their partisans. With regard to the instant lawsuit, the speaker asserts his credentials as a proper and entitled avenger of the victim, Dionysodorus, by stating their familial relationship: he is Dionysodorus’ brother-in-law and first cousin. Kinship between prosecutor and victim had no legal relevance in an apagôgê, which in theory any willing Athenian citizen could mount (above, p. 61). Nonetheless, owing to the Athenian sentiment that homicide was a family concern, and that therefore a victim of homicide should be avenged by his kin, the speaker demonstrates his compliance with these societal norms by disclosing his relationship to Dionysodorus.32 For these purposes, the two men’s connection by marriage is less important than their connection by blood: as Dionysodorus’ first cousin, the speaker would have been entitled to prosecute Agoratus by dikê phonou as well as by apagôgê. The familial tie between victim and prosecutor thus establishes the grounds for the latter’s enmity (echthra) against the killer, as manifested in the present lawsuit. The speaker, further, makes evident the solidarity of his family in their dispute against Agoratus. 32 Bearzot (1997) 241.

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This cohesion of the kin group is evidenced later in the speech in the fact that Dionysius, the brother of the victim, submitted the original arrest warrant for Agoratus (§ 86), and it is implied here by the speaker’s statement that Dionysodorus’ death harmed his entire family (e{kaston tw'n proshkovntwn). Yet, in his introduction, the speaker clearly privileges the public interest and the Athenian people’s hostility toward Agoratus and men like him over his own specific and personal grievances. As with the death of Polemarchus in Lysias 12, the death of Dionysodorus serves merely as a symptomatic instance of the conduct that characterized the oligarchy and gave rise to a state of enmity pitting the Thirty and their supporters against Athens as a whole; and this argument in turn allows the speaker to identify the jury’s position in the dispute with his own. He achieves this association in part by employing a rhetorical chiasmus at the very beginning of his speech: he first invokes the jury’s duty to avenge all the democratic dead (Proshvkei mevn, w\ a[ndre~ dikastaiv, pa'sin uJmi'n timwrei'n uJpe;r tw'n ajndrw'n oi} ajpevqanon eu\noi o[nte~ tw'/ plhvqei tw'/ uJmetevrw/), then subjoins his own duty to avenge Dionysodorus (proshvkei de; kajmoi; oujc h{kista: khdesth;~ gavr moi h\n Dionusovdwro~ kai; ajneyiov~). Agoratus’ deeds have given rise to the speaker’s hatred (uJp∆ ejmou'... misei'tai) and hopefully will lead to a conviction by the jury (uJpov te uJmw'n, a]n qeo;~ qevlh/, dikaivw~ timwrhqhvsetai). By means of this figure, Lysias situates the prosecution’s desire for vengeance within the larger concerns of the jury compositionally as well as rhetorically. Then, in § 2, the speaker alternates between his specific grounds for enmity and the motives imputed to the jury and the city of Athens: Dionusovdwron...to;n khdesth;n to;n ejmo;n (specific)...eJtevrou~ pollouv~...a[ndra~ o[nta~ ajgaqou;~ peri; to; plh'qo~ to; uJmevteron (general)...ejme; me;n ijdiva/ kai; e{kaston tw'n proshkovntwn (specific)...th;n de; povlin koinh'/ pa'san (general). Finally, in § 3 “I” (ejmoiv), the speaker, and “all of you” (uJmi'n a{pasi), the jurors, merge into “we” (hJmi'n), and the identification is complete. Lest the jury forget the prosecution’s claim to act on its behalf and on behalf of the Athenian people, Lysias reiterates this equation of the interests of the speaker and his kinsmen, the jurors, and the city of Athens throughout the speech, just as he had done in the Eratosthenes case. In his treatment of Agoratus’ jury, however, Lysias makes the first of two crucial adjustments from the strategy employed against Eratosthenes. Lysias had prosecuted Eratosthenes in the immediate aftermath of the peace and the Amnesty, when the Athenians were especially anxious to observe the Amnesty’s terms, and he had been compelled by the regulations governing the euthynai of former tyrants to allow for the probability that his jury would include a significant number of men of the city, who until very recently had opposed the democracy. Accordingly, toward the end of the Against Eratosthenes he had made separate appeals to oligarchs and democrats in an attempt to unify them in enmity against the defendant (above, pp. 162–63). Agoratus, by contrast, was tried some five years later, after the initial shock of the Peloponnesian and civil wars had subsided, and by a regular dicastic jury that presumably contained a preponderance of poorer Athenians.33 Both the passage of time and the likely composition of Agora33 On the composition of the dikastêria see above, pp. 172–73.

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tus’ jury evidently encouraged Lysias and his clients to assume, for the sake of their argument, that the entire jury was democratic in its sympathies.34 Unlike Lysias in oration 12, the speaker of Lysias 13 never acknowledges the likelihood that at least some of his jurors sided with the Thirty Tyrants during the civil war, instead consistently and expressly positing a jury consisting entirely of democrats. In the Against Agoratus Lysias employs the phrase to; uJmevteron plh'qo~ (including variants in case and word order) eight times, seven of which occur in the first seventeen sections (§§ 1 bis, 2, 9, 10, 16, 17, 92); once, at § 20, he uses the even more explicit formulation tou' dhvmou tou' uJmetevrou. The presumption of a uniformly democratic jury permits the speaker to impute democratic leanings not only to all the jurors individually but to the city as a whole, both immediately before and during the civil war. Accordingly, by the speaker’s account, every person and action that favored the democracy did so to the benefit of the jurors and the city, while every person and action that harmed the democracy did so to their detriment. At § 4 the speaker promises to relate to the jury how and by whom “your democracy” (uJmi'n hJ dhmokrativa) was brought down. When Sparta proposed peace terms to end the Peloponnesian War that included the partial dismantling of the Long Walls, “you would not put up with hearing about the destruction of the walls (uJmei'~...oujk hjnevscesqe ajkouvsante~ peri; tw'n teicw'n th'~ kataskafh'~),” and in response Cleophon objected “on behalf of all of you” (uJpe;r uJmw'n pavntwn, § 8; cf. § 12). When Theramenes volunteered to serve as ambassador plenipotentiary to Sparta, he was “plotting against you the people” (ejpibouleuvwn tw'/ plhvqei tw'/ uJmetevrw/, § 9; cf. § 17),35 and he achieved his anti-democratic aims by forcing Athens into a dishonorable peace over the opposition of generals and taxiarchs who “had your interests at heart” (eujnoou'nte~ uJmi'n, § 13; cf. § 17) and foresaw the downfall of “you the people” (to; uJmevteron plh'qo~, § 16). These comments all refer to events that preceded the seizure of power by the Thirty, and so in these places we may chalk up Lysias’ equation of the Athenian people with the democracy to standard and unremarkable democratic rhetoric: under a democratic government, the democracy was the people, even if some individual citizens preferred an oligarchy. As the narration approaches the period of oligarchic ascendancy, however, Lysias’ revision of Athenian history and whitewashing of the jurors’ participation in it decreases in credibility.36 At § 20 the 34 This is another facet of Lysias 13 that points to a later rather than an earlier date (that is, ca. 398 rather than 401) within the chronological range proposed by the various commentators (above, p. 185 n. 1). 35 The speaker asserts (§ 10) that, in the year before his appointment as ambassador, Theramenes had failed his dokimasia (candidacy examination) for the generalship because the Athenians did not consider him a friend of democracy. The fact that Athens was willing to send a proven oligarch to negotiate with Sparta on his own authority suggests that the hardships of war had prepared the Athenians to sacrifice their constitution as the price of their survival, and thus argues against Lysias’ portrayal of the Athenian citizen body at the end of the war as unwavering in its commitment to democracy. 36 While the jury pool for the dikastêria was skewed disproportionately toward the elderly and poor (above, p. 172), and it might therefore be argued that Lysias could risk alienating former oligarchs on account of their meager representation on Agoratus’ jury, the Against Eratosthenes

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speaker asserts that the Council of 500 sitting shortly before the installation of the tyrants had been corrupted, desired oligarchy, and was working “for the dissolution of your democracy” (ejpi; kataluvsei tou' dhvmou tou' uJmetevrou). Yet, unlike the Council soon to be appointed by the Thirty, this was a democratically-allotted boulê. If the Council of 500, the archetypal organ of Athenian democracy, was leaning in the direction of oligarchy toward the middle of 404, we must wonder exactly whom they were supposedly betraying; and we certainly cannot assume, as Lysias does, that the jurors in the Agoratus case unanimously decried the Athenian government’s swing toward the center. While Lysias cannot be accurate in ascribing staunch democratic leanings to all Agoratus’ jurors in the months before and after the end of the Peloponnesian War, he is at least consistent. The speaker addresses the members of his jury as though, following the establishment of the oligarchy in 404, every single one of them joined the democratic resistance, opposing the tyrants in both thought and deed. So, for example, according to the speaker, by the time the Thirty transferred the lawsuit against the generals and taxiarchs to the boulê, “you [the members of the jury] had all realized the trouble the city was in” (a{pante~...ejgnwkovte~ h\te ou| h\n kakou' hJ povli~, § 36). Given that, for Lysias’ purposes (as commonly), the jury is the city of Athens in microcosm, the consumer of the narrative, whether a juror in the Agoratus case or a modern critic, might well wonder exactly how a small group of oligarchs, apparently supported only by non-citizens of low status, gained power in the first place and then held sway at Athens for as long as it did. By imputing democratic sympathies to the entire jury, Lysias can also ascribe to every juror the sufferings that the Thirty (and their tool Agoratus) inflicted upon their enemies. “We lost many good citizens,” says the speaker at § 13, “and we ourselves were expelled [from Athens] by the Thirty.” Thus Lysias constructs his argument on the premise that not a single juror in the present case was on the list of the Three Thousand allowed to remain in Athens. The assumption is repeated flagrantly in § 47, where the speaker tells the jury, “In addition, you lost your personal estates, and finally you were all collectively expelled from your homeland by the Thirty” (pro;~ de; touvtoi~ ta;~ ijdiva~ 〈oujsiva~〉 ajpwlevsate, kai; to; teleutai'on sullhvbdhn a{pante~ uJpo; tw'n triavkonta ejk th'~ patrivdo~ ejxhlavqhte). At several points, as in the Against Eratosthenes, Lysias juxtaposes the personal losses suffered under the oligarchy by Agoratus’ prosecutors and jurors as individuals with the public injuries inflicted upon the state that they collectively constitute. We have already witnessed in the prooemium to the Against Agoratus the connection drawn by Lysias between the sufferings incurred by Dionysodorus’ relatives as a result of his execution and the harm done to the city as a whole by the loss of Dionysodorus and victims like him (§ 2: above, p. 201). As the speech develops, Lysias repeatedly associates the jurors’ personal disasters with the collective catastrophe endured by Athens. In § 48, for example, the speaker implores the jurors to “remember, each of you, both your indicates that the civil war had caused financial hardship for the Thirty’s supporters as well as their opponents (Lys. 12.93: above, p. 174). Under such circumstances, Agoratus’ prosecutors may have addressed a jury containing more former oligarchs than they or their logographer bargained for.

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own misfortunes and the common misfortunes of the city.” This juxtaposition recurs in very similar form in the speaker’s closing remarks, where he encourages the jury to “remember all the terrible things that happened, both those common to the city and those private ones that befell each of you” upon the execution of the generals and taxiarchs (§ 95). Lysias constructs this scenario, assigning to the jury a unanimous democratic stance and the resulting adversity, in order to convince the jurors that their position in the ongoing dispute, and thus their verdict in the present lawsuit, is predetermined as a duty toward their deceased philoi. The argument of the Against Agoratus distinctly privileges this corporate obligation over the financial and other misfortunes incurred by the jurors as individuals. In the first sentence of the Against Agoratus (above, p. 201), the speaker posits revenge on behalf of the democrats killed by the Thirty as an obligation binding upon every member of the jury. As the argument develops, this obligation is both repeated and specified in terms of both origin and content. The duty to avenge, which falls upon the prosecutors and jury alike, arises from the dying injunctions issued by Dionysodorus and the other victims of the Thirty – an argument that Lysias was precluded from employing in the Against Eratosthenes because neither he nor (apparently) any other surviving kin were present to hear any final instructions Polemarchus gave. Hence, in the introduction to the Against Agoratus, the speaker promises to include in his narration “what [Agoratus’ victims] enjoined (ejpevskhyan) when they were about to die” (§ 4).37 The only dying injunction described in detail in the speech is that of Dionysodorus, the victim immediately relevant to the case. As he sat in prison after his conviction, awaiting execution, Dionysodorus summoned his wife, the speaker’s sister, and issued an injunction mandating vengeance upon Agoratus, to whom he assigned responsibility for his impending death, and directed to his brother Dionysius, the speaker, all his philoi (a term that normally designates family and/or friends [above, p. 26], but see below), and his putative unborn son (§§ 40–42: above, p. 66). Without giving specifics, the speaker asserts that the other men consigned to execution by Agoratus’ denunciations issued like injunctions to similar groups of recipients: “As they were dying, they enjoined us and all their philoi to get revenge for them on Agoratus as their killer” (§ 92). The speaker contends that these dying injunctions apply to the jurors, as well as to himself, Dionysius, and the other kin of the victims, because the philoi to whom the dying men appealed for vengeance include the members of the jury: “if [Agoratus’ victims] patently did some good for the city or for you the people, you must all be their friends (fivloi) and intimates; therefore, they issued their injunctions no more to us [the prosecutors] than to each one of you (oujde;n ma'llon hJmi'n h] kai; uJmw'n eJni; eJkavstw/ ejpevskhyan)” (§ 92).38 Thus Lysias replaces family relationship or personal friendship, the usual qualifications for philia, with broad political affiliation: since the men denounced by Agoratus were noted democrats who had done 37 On the significance of the verb ejpiskhvptw see above, pp. 64–68. 38 Cf. § 94 oi|~ ejpevskhpton ejkeivnoi wJ~ fivloi~ ou\si, and compare also the description of the condemned generals and taxiarchs as eujnoou'nte~ uJmi'n (§ 13).

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signal service to the dêmos, and since (according to the argument detailed above) the jurors were all democrats and therefore had reaped the benefits of the condemned men’s political activities, the jurors are philoi of Dionysodorus and his fellow victims and hence recipients of their dying injunctions. This is not to say, though, that Lysias widens the range of philia to the detriment of the importance of kinship. As noted above, kinship forms the basis of the speaker’s and Dionysius’ stated moral qualification to avenge Dionysodorus, even though it is legally irrelevant in the procedure they employ to redress Dionysodorus’ death. Doubtless, too, part of Lysias’ goal in having the speaker read out a list of Agoratus’ victims at § 38 was to awaken a passion for revenge in any of their relatives and friends – philoi as traditionally defined – who might be sitting on the jury. But in composing this speech, Lysias could not safely presume that any significant fraction of the prospective jurors would be related to the men whom Agoratus had denounced, and so he broadened the scope of philia so as to make every juror, regardless of kinship, an addressee of the last instructions of Agoratus’ victims. Significantly, this expansion of the concept of philia tacitly demonstrates the tight connection drawn by the Athenians between kinship and the duty to avenge a killing. The speaker appeals to the jurors not simply as Athenian citizens who should desire the punishment of a killer and his removal from the community, but as quasi-kin upon whom the decedents have imposed the obligation to avenge them. By arguing that the jurors are recipients of the dying injunctions of Dionysodorus and the other men executed as a result of Agoratus’ denunciations, Lysias widens the focus and ramifications of the verdict to be rendered: it will reflect not only the legal issue of Agoratus’ guilt or innocence, but the jurors’ piety as well. Owing to the religious overtones that the Athenians attached to homicide (see chapter 2), and especially to the demands of piety that fell upon the victim’s kin and other recipients of his dying injunction (see chapter 3), the speaker argues that since the relevant decedent(s) in the present case directed their injunctions to the jurors, piety requires them to convict Agoratus. Hence, in his introduction, the speaker presents vengeance upon Agoratus as both just from a legal standpoint (divkaion) and pious from a religious standpoint (o{sion) for himself and for the jury (kai; ejmoi; kai; uJmi'n, § 3). Justice, and especially piety, require the jurors to obey the dying injunctions of Agoratus’ victims. As we have seen, the narrative of the Against Agoratus portrays not only Dionysodorus but all of the generals and taxiarchs as investing Agoratus with responsibility for their deaths and mandating retribution accordingly (§§ 41– 42, 92). The victims, says the speaker, charged the addressees of their dying injunctions “to take vengeance upon Agoratus as their killer and to do him whatever harm each man could” (timwrei'n uJpe;r sfw'n aujtw'n ∆Agovraton toutoni; wJ~ foneva o[nta kai; kakw'~ poiei'n kaq∆ o{son a]n e[mbracu e{kasto~ duvnhtai, § 92). For Dionysodorus’ kinsmen, this means bringing Agoratus to court as a killer, which they have done.39 For the jurors, it means voting to convict. Since they could not act earlier to prevent the deaths of Agoratus’ victims, they must come to their aid now by punish39 For the Classical Athenian assumption that a dying man’s call to vengeance mandated that his kinsmen mount a prosecution for homicide see above, p. 66.

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ing their killer (§ 93); since the dead cannot avenge themselves, the jurors must achieve satisfaction for them.40 Accordingly, toward the end of the speech, Lysias again posits the verdict to be rendered by the jury as an indicator of its sense of piety as well as its sense of justice. The acquittal of Agoratus will mark the jurors as deficient in both areas (“it is neither pious nor lawful [ou[te o{sion ou[te novmimon] for you to acquit Agoratus,” § 93), while a conviction will redound to their credit (“you will be deemed by all men to have voted with justice and piety [divkaia kai; o{sia yhfivsasqai],” § 97). Lysias’ tactic of treating the jury in the Agoratus case as universally and staunchly democratic, thereby eliding the reality of factional memories, represents one of two major strategic changes from the trial of Eratosthenes in regard to the prosecution’s depiction of the boundaries of enmity. A second change was mandated by the difference in status between the respective defendants, and also by some incontestable facts of the Agoratus case that inevitably complicated the prosecution’s approach. While Eratosthenes had been a member of the ruling cadre of Thirty and his identification within the oligarchic camp had therefore involved no difficulty, the requirements of Lysias’ argument in the Against Agoratus and Agoratus’ own documented conduct located him by necessity on the fringes of the oligarchic faction at best. In positioning Agoratus within the stasis of 404/3 and the attendant hostilities, the fundamental problem confronting Lysias was the fact that, whatever Agoratus’ connection to the Thirty may have been at the beginning of their regime, he later became a man of the Peiraeus. While disputing the specifics of Agoratus’ involvement, the prosecution conceded that he had been present not only in Peiraeus but even at Phyle, at the outset of the democratic counterinsurgency. This admission presumably resulted from incontrovertible evidence presented by the defendant, since it would clearly have benefited the prosecution to be able to assert that Agoratus had remained in the city as a die-hard supporter of the oligarchy from beginning to end.41 As we have seen, Lysias endeavors to turn Agoratus’ flight from the city to his clients’ advantage, by arguing that it deprived him of the protection of the Amnesty (above, p. 193). Yet Agoratus’ absence from Athens for much of the time the tyrants were in power, combined with his status as a non-citizen, clearly problematizes, and arguably compromises, his identification as an oligarchic sympathizer. The facts of the case and the necessity of maintaining an internal consistency in the prosecution’s argument compel Lysias to argue two seemingly contradictory points: while Agoratus must be excluded from the oligarchic faction and acknowledged as a man of the Peiraeus so as to disqualify him from the Amnesty, he must be associated with the oligarchs and distanced from the democratic insurgents for the purpose of defining and delimiting the dispute. 40 This argument is implied by § 46: “What sort of opinion do you think [the democratic victims of the Thirty] have about the defendant? What vote do you think they would cast, if it were up to them...?” Compare the more explicit formulation at Lys. 12.88 (above, p. 160). 41 Such a hypothetical argument might have entailed accepting Agoratus’ claim to citizenship; otherwise it would have been difficult to place Agoratus among the Three Thousand who alone were allowed to remain in the city following the death of Theramenes (above, p. 141).

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First and foremost, the casus litis establishes Agoratus as an enemy of Athenian democracy and hence opposes him not only to the democratic cause in 404 but to the post-restoration democratic jury presently hearing his case. Despite possessing no incriminating knowledge, Agoratus informed against the generals and taxiarchs who led the democratic opposition to the terms of peace proposed by Sparta and endorsed by Theramenes (§§ 13–14, 17–18; cf. §§ 62–63). In so doing he provided material assistance to the members of the oligarchic conspiracy then in motion and thereby determined his position in the ensuing dispute: in the opening sentences of Lysias 13 the speaker describes the state of echthra pitting himself and the Athenian people against Agoratus as a direct result of the latter’s denunciation of Dionysodorus “and many others” (§§ 1–2). The prosecution portrays these denunciations as a deliberate choice by Agoratus, an issue that will be addressed in further detail below. Moreover, the speaker presents the events immediately surrounding the actual denunciations so as to confirm Agoratus’ stance of hostility toward the dêmos. Agoratus initially delayed apprehension by the boulê when several men volunteered to stand surety for him, and could have avoided arrest altogether had he obeyed his sureties’ entreaties to leave Attica. Agoratus’ sureties were motivated by the concern that “things in the city were not in the best condition” (§ 23); that is, they were troubled by the precarious state of the democracy. Agoratus not only disregarded their warnings and subsequently complied with the second deputation of the Council sent to arrest him, but then denounced his sureties, along with the generals and taxiarchs and some additional individuals, before the boulê (§§ 29–30). At the resulting trial, the Council not only acquitted Agoratus but, according to the prosecution, designated him a benefactor (euergetês) of the regime (§ 38). The councillors could easily have convicted Agoratus on the basis of his supposed complicity with the other defendants, yet they chose to reward him with his life and with a titular honor. Lysias thus depicts Agoratus as the political and moral antithesis of his victims: while the latter supported and promoted the democracy conspicuously and honorably and paid for it with their lives, Agoratus abetted the oligarchy of the Thirty by giving false information and thus proved himself their benefactor. For the purposes of determining the lines of conflict, the Thirty’s grant of this title cements Agoratus’ position. Later in the reign of the Thirty, Agoratus attempted to switch sides and join the democratic resistance; although we are not told when or why, the natural assumption is that Agoratus’ flight to Phyle resulted from the expulsion from the city of everyone excluded from the catalogue of the Three Thousand. The prosecution expects Agoratus’ claim of participation in the counterinsurgency from Phyle onward to constitute the principal line of argument in his defense (§ 77). However, according to the speaker’s description of events, Agoratus’ efforts to realign himself with the democratic rebels failed, and he was pointedly and consistently rebuffed. Upon his arrival at Phyle, the democrats there arrested him with the intent of executing him. The speaker pointedly mentions that they treated Agoratus as they did any other thief or “malefactor” (kakourgos: above, p. 124), thereby patently implying that the apagogê of Agoratus resulting in the present trial merely reproduced the apagogê attempted by the democrats at Phyle. The prosecution asserts that Agoratus escaped execution at Phyle thanks only to the intervention of the rebel general

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Anytus (PA = APF 1324); yet Anytus intended to grant only a temporary reprieve, and his rationale for sparing Agoratus both defined him as an enemy and presumed future vengeance. “We are not yet in a position,” Anytus is represented as saying, “to get revenge on any of our enemies (timwrei'sqaiv tina~ tw'n ejcqrw'n)...but if we ever return home, then we will punish those who do us wrong” (§ 78). Thus, according to the prosecution, the general recognized Agoratus as echthros despite his attempt to defect to the democratic cause and encouraged efforts to exact revenge upon him after the restoration of democracy. The speaker thus presents not only the apagogê of Agoratus by the democratic troops but even its quashing by their commander as definitive evidence of Agoratus’ adversarial position and as justification for the present trial and the desired conviction. After Agoratus’ brush with death at Phyle, the democratic army continued to treat him as a pariah: owing to his denunciations, the democrats shunned Agoratus as a killer. In keeping with the homôrophios doctrine (above, p. 63), the troops universally refused to share a meal or a tent with Agoratus and thereby expose themselves to the pollution that an unpunished and uncleansed killer might communicate. The taxiarch – presumably the infantry commander for the tribe Erechtheis, if the prosecution’s assertion that Agoratus represented himself as a demesman of Anagyrous is correct42 – refused to station Agoratus among the men of his tribe, thereby confirming Agoratus’ rejection by the soldiers and by his commanding general Anytus. Furthermore, no one would even speak to Agoratus, “just as though he were alitêrios” (w{sper ajlithrivw/, § 79) – a term that designated either the spirit of an unavenged homicide victim or the killer who activated such a spirit (above, p. 62). Agoratus belonged to the latter category, as confirmed by a very similar passage later in the speech that employs androphonos “killer” in place of alitêrios (§ 82: below, p. 211). The alleged counterexamples in Demosthenes 22 and 24 discussed in chapter 3 show that the response to homicide that the Classical Athenians considered proper, both morally and religiously, was a refusal to associate in any way with the guilty party: the very behavior scrupulously displayed, according to Lysias 13, by the men at Phyle. From the command level down, the democrats at Phyle consistently (and, from the prosecution’s point of view, correctly) dealt with Agoratus as a killer with whom they were at enmity: the men who first encountered him, by initially arresting and endeavoring to execute him; their commander, by labeling him an enemy and encouraging the prospect of revenge; the taxiarch, by dismissing him; and the army as a whole, by shunning him. Moreover, the fact that the speaker calls the taxiarch as a witness, combined with the high probability that there were men on the jury who had been present at Phyle and could refute any inaccuracies in the prosecution’s description of events there, suggests that, in addition to accurately representing normative Athenian sentiment regarding the treatment of killers in general, the Phyle narrative contains a significant degree of factual truth concerning the reception accorded to Agoratus. By presenting a condemnatory verdict unanimously rendered in immediate response to Agoratus’ denunciations by men who included some of the informer’s 42 See above, p. 197; Phillips (2004) 227 n. 46.

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targets who had managed to escape Athens (§§ 77–78), Lysias constructs the scene at Phyle in its entirety so as to prejudice Agoratus’ jury toward a conviction. The speaker has already reminded the jurors that some of the men who escaped death despite their condemnation by Agoratus “returned from Phyle and are honored by you as noble men (a[ndre~ ajgaqoiv)” (§ 63). The description of the events at Phyle thus adds an element to the jurors’ presumed motive of revenge on behalf of Agoratus’ victims. Not only do they owe a debt to the men who died as a result of Agoratus’ testimony, as amply documented above; they also have a similar obligation to those who survived and to whom they have demonstrated a continuing allegiance. The entire Phyle narrative thus serves as an implicit appeal to the jurors, and especially to those who were present at Phyle, to maintain their position in the dispute and to defend their philoi, both living and dead, by discharging the obligation incumbent upon them and convicting Agoratus. Since in the Against Agoratus Lysias ascribes democratic sympathies and interests to the entire jury, he perceives no need (as he had in the Against Eratosthenes) to convince former oligarchs to desert their partisans; however, his treatment of Agoratus as a man of the Peiraeus when it suits his clients’ Amnesty argument cleverly allows any men of the city sitting on the jury to vote for a conviction without feeling that they are betraying an ally. After discussing the reception of Agoratus at Phyle, Lysias passes over the rest of the civil war and next addresses the defendant’s attempt to participate in the victorious democrats’ procession from the Peiraeus to the Athenian Acropolis, which took place on 12 Boedromion 403 following the conclusion of hostilities.43 The prosecution alleges that Agoratus took up arms and joined the procession among the hoplite ranks, but Aesimus (PA 311), serving as parade marshal, detected him as the procession approached the gates of Athens and ejected him on the grounds that a killer was not fit to take part in the festivities (ouj ga;r e[fh dei'n ajndrofovnon aujto;n o[nta sumpevmpein th;n pomph;n th'/ ∆Aqhnaiva/, § 81). As with the events at Phyle, the prosecution presents witnesses to confirm the preceding narrative. Now, among the men who were allowed to participate in the procession there were obviously many who had recently shed the blood of their countrymen in battle, but they were not considered androphonoi. They had committed acts of war; Agoratus had groundlessly facilitated executions carried out within the oligarchic polis by the judiciary of the Athenian state. Motivated as it was by the presumption that Agoratus was a killer to be shunned, Aesimus’ dismissal of Agoratus from the procession to the Acropolis parallels Agoratus’ rejection by the taxiarch and by the democratic army as a whole at Phyle. In juxtaposing the reactions to Agoratus at Phyle and at the procession, Lysias invites the jury to conclude that the democratic community universally and consistently viewed Agoratus as a killer and on that account cast him out for the duration of the war and beyond. The speaker accordingly sums up his discussion of this topic by telling the jurors, “This...is how [Agoratus] was treated by the hoplites both at Phyle and in the Peiraeus:” – even though not a word has been said about Agoratus’ time in the Peiraeus – “no one would speak to him, since 43 For the date (which fell in September or October according to our calendar) see Plut. Mor. 349f. Xenophon gives a brief report of the procession at Hell. 2.4.39.

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he was a killer (wJ~ ajndrofovnw/ o[nti: cf. w{sper ajlithrivw/ above), and Anytus was responsible for his not being executed” (§ 82). Lysias 13 thus establishes Agoratus’ position in the dispute largely by means of a negative argument centered around his rejection by the democratic counterinsurgents. Yet Agoratus might still conceivably assert that he had occupied a position of neutrality in the civil war, as at least one other Athenian metic allegedly did in the aftermath of the democratic restoration (Lys. 31.14),44 in defiance of a law enacted by Solon that prohibited neutrality in time of stasis ([Arist.] Ath. Pol. 8.5).45 However, Agoratus’ commission of an overt act (above, p. 21) in denouncing a number of democrats and thus consigning them to execution positively determines his status in the dispute as a partisan of the oligarchs, a status confirmed by the Thirty when they designated Agoratus a benefactor of their regime. Moreover, since Agoratus’ activity as an informer spans the downfall of the democracy and the transition to oligarchy in 404, and since, according to the narrative of Lysias 13, the execution of the generals and taxiarchs paved the way for the Thirty by removing a crucial roadblock, Lysias can characterize Agoratus’ denunciations as “the beginning of the whole evil business” (hJ...ajrch;...tou' panto;~ kakou', § 30); that is, of the Thirty’s reign of terror and the ensuing civil war. Consequently, the peroration to the Against Agoratus argues that the verdict returned by the jurors will indicate their relationship to the Thirty as well as to the individual defendant: the jury faces the necessity of choosing sides not only between Agoratus and the men he denounced but between the tyrants and all of their victims. Lysias begins the concluding argument of the Against Agoratus by arguing that the jurors qualify as philoi of Agoratus’ victims and thus as addressees of their dying injunctions (§ 92: above, p. 205). Upon this premise he constructs the remainder of the peroration (§§ 93–100). Using a syllogism familiar from the Against Eratosthenes (12.100: above, p. 162), he asserts that the jury’s vote in the Agoratus case will directly reflect its opinion of the verdict rendered and the sentence enforced upon the men whom Agoratus denounced. “If you acquit this man Agoratus,” says the speaker, “you will not effect that alone: by the very same vote you will also condemn to death those men whom you agree were friendly to you (uJmi'n eu[nou~)” (§ 93). An acquittal of Agoratus would endorse the conviction and execution of his victims, and such a betrayal would constitute an egregious violation of the obligations of philia binding the jurors to the condemned. In the Against Eratosthenes, Lysias had portrayed such backstabbing as characteristic of oligarchs, best and most appallingly exemplified in Theramenes’ capital prosecution of his erstwhile philoi Antiphon and Archeptolemus (12.67: above, p. 176); here he presents the corollary, consistently underscoring the unity of the democratic faction to the extent of blatant exaggeration. In order to maintain their credentials as good democrats, therefore, the jurors must continue to display solidarity in support of their allies and unanimous hostility toward their enemies. The archetypal enemies of democracy, and hence (by Lysias’ formulation) of the jurors, are, of course, the Thirty, whom Agoratus’ prosecutors have defined as 44 Carey (1989) 192, 198–200 with references; Todd (2000) 308–9. 45 Rhodes (1993) 157–58; for additional sources and commentary see the preceding note.

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the philoi of the defendant. A vote for Agoratus, therefore, is a vote for the Thirty. This equation is crucial to the prosecution’s strategy, as it distracts the jurors from the contentious specifics of the case – Agoratus’ role in the execution of Dionysodorus and the serious obstacle presented by the Amnesty of 403 – and represents the issue at trial as a simple black-and-white choice between oligarchy and democracy. A democratic juror persuaded by this rhetoric might well vote to convict Agoratus, regardless of the efficacy of the prosecution’s legal arguments, in order to ward off the odium of association with the tyrants. Accordingly, as the end of the oration approaches, Lysias subtly shifts the primary focus of his attack from Agoratus to the Thirty: while he does not lose sight of the issue of the individual defendant’s culpability or the jurors’ obligations toward the victims, he increasingly foregrounds the tyrants’ presumed interests as the would-be negative determinant of the jury’s decision. The speaker tells his jurors that Agoratus’ victims would “incur the worst of all sufferings, if the people they enjoined as their friends to get revenge for them (oi|~ ejpevskhpton...wJ~ fivloi~ ou\si timwrei'n uJpe;r auJtw'n) cast the same votes against them as the Thirty did” (§ 94). The next sentence concludes with a reference to the democratic leaders “who died at the hands of the Thirty and the defendant Agoratus” (uJpo; tw'n triavkonta kai; ∆Agoravtou toutoui; ajpevqanon, § 95), which emphasizes the role of the tyrants over that of the defendant. Finally, after summarily reasserting the specific culpability of Agoratus, the speaker concludes by defining the responsibility borne by the jurors not in reference to the lawsuit before them but in antithesis to the actions and interests of the Thirty: e[ti de; kai; proshvkei uJmi'n ejnantiva toi'~ triavkonta yhfivzesqai: w|n me;n toivnun ejkei'noi qavnaton katevgnwsan, uJmei'~ ajpoyhfivsasqe: w|n d∆ ejkei'noi qavnaton ouj katevgnwsan, uJmei'~ katayhfivsasqe. oiJ triavkonta toivnun tw'n me;n ajndrw'n touvtwn, oi} h\san uJmevteroi fivloi, qavnaton katevgnwsan, w|n dei' uJma'~ ajpoyhfivzesqai: ∆Agoravtou de; ajpeyhfivsanto, diovti ejdovkei proquvmw~ touvtou~ ajpolluvnai: ou| proshvkei katayhfivzesqai. ejan; ou\n ta; ejnantiva toi'~ triavkonta yhfivzhsqe, prw'ton me;n oujc oJmovyhfoi 〈toi'~ ejcqroi'~〉46 givgnesqe, e[peita toi'~ uJmetevroi~ aujtw'n fivloi~ tetimwrhkovte~ e[sesqe, e[peita toi'~ pa'sin ajnqrwvpoi~ dovxete divkaia kai; o{sia yhfivsasqai. Moreover, it befits you to vote in opposition to the Thirty: you must acquit those whom they condemned to death, and you must convict those whom they did not condemn to death. The Thirty condemned to death these men, who were your friends, and whom you must acquit. But they acquitted Agoratus, because he was deemed to have destroyed these men with enthusiasm; him it befits you to convict. If, then, you vote in opposition to the Thirty, first, you will not be casting the same votes as your enemies; second, you will have avenged your own friends; and third, you will be deemed by all men to have voted justly and piously. (§§ 96–97)

46 This editorial supplement, originally proposed by Francken (1865), is accepted by Hude (1912) and Gernet-Bizos (1989), and apparently by Todd (2000) in his translation; Thalheim (1913) would emend to the superlative toi'~ ejcqivstoi~. One of these conjectures is almost certainly correct: oJmovyhfoi requires a dependent dative in order to make sense; toi'~ triavkonta is arguably ruled out on stylistic grounds by its appearance in the preceding clause, while toi'~ ejcqroi'~ (or possibly Thalheim’s toi'~ ejcqivstoi~) makes a neat antithesis with toi'~ uJmetevroi~ aujtw'n fivloi~ in the following clause.

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At the end of the speech, Agoratus is relegated to a secondary role, serving only as a bellwether for the jurors to employ as a means of proving their continuing opposition to the Thirty and thereby preserving their democratic bona fides. In order to maintain their position in the continuing conflict, they must demonstrate their hostility to the oligarchs by rendering a verdict supportive of their friends – a group that includes Agoratus’ victims but comprises the democratic city as a whole – and contrary to the interests of their enemies:47 they must vindicate the men whom the Thirty condemned and punish the man they set free. In the end, therefore, Agoratus’ conviction carries greater significance as a demonstration of the jurors’ integrity as philoi and echthroi than as an indicator of the defendant’s guilt. In establishing the boundaries of echthra, therefore, the prosecution’s strategy in the Against Agoratus is, to a significant extent, the reverse of that employed in the Against Eratosthenes. In the earlier speech, the immediate proximity of the reign of the Thirty and the civil war had compelled Lysias to concede to realities and address the fact that Eratosthenes’ jury included significant representation from both sides in the recently concluded war; he therefore made a dedicated attempt to persuade those jurors who had belonged to the opposing faction to realign themselves in the dispute. While the jury’s position was thus complex, that of the defendant Eratosthenes was simple: as a former member of the Thirty, his stance was securely established, universally known, and required no proof at trial. In the Agoratus case, however, the jury and defendant change places: in comparison to the Eratosthenes case, Lysias simplifies the position of the jury but confronts a greater degree of complication in determining the stance of the defendant. The passage of time between the troubles of 404/3 and the trial of Agoratus, along with the difference in jury composition, allowed Lysias to risk ignoring the presence of former oligarchs on Agoratus’ jury and to impose an artificial simplicity by treating the jurors as unanimously democratic philoi of the prosecution. But he faced inherent and evident difficulties in defining the defendant’s place in the conflict. Unlike Eratosthenes, Agoratus had not been a leader of the oligarchic faction, a member of the Three Thousand, or even (according to the prosecution) an Athenian citizen; these considerations, combined with the apparently incontestable fact of his presence at Phyle and the Peiraeus, complicated his position in the dispute and laid it open to contest.

Agoratus’ motives and the question of volition Further complicating the prosecution’s case against Agoratus was the problem of his motives and volition. Eratosthenes had contested his specific role in the arrest and execution of Polemarchus and the other metics, but in general, as much as he might endeavor in his defense to rehabilitate himself and mitigate his guilt by portraying himself as an ally of Theramenes, as a former member of the ruling junta he could not disclaim his central and voluntary role in the creation and conduct of the 47 On the transitivity of philia and echthra see above, pp. 25–29.

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oligarchy. The Amnesty, too, afforded a general blanket immunity to the partisans of the late oligarchy while imposing the presumption of liability upon its leaders, presumably taking into account the possibility of duress exercised by the Thirty upon their supporters. Lysias indicates as much in the Against Eratosthenes in acknowledging that the courts could be expected to apply, and would be justified in employing, a more stringent set of standards in judging the Thirty than in judging their followers; he even concedes that it might be necessary to pardon those who killed others to save their own lives.48 Given Agoratus’ low status and lukewarm support for the oligarchy, the jurors cannot presume prima facie that Agoratus was a voluntary partisan of the Thirty, and they might well acquit him if he proves duress. The prosecution must therefore prove volition – that is, that Agoratus willfully joined in the dispute on the side of the oligarchs. Further, owing to Agoratus’ status outside the catalogue of the Three Thousand, let alone the ruling elite, in order to make its volitional argument credible the prosecution must at least offer a motive: why would Agoratus, of all people, wish to align himself with an oligarchy? Lysias’ argument as to Agoratus’ motive is extremely weak. Nowhere does he advance any positive incentive for Agoratus to inform upon his victims, apart from a vague expectation of benefits from the new government. In one passage the speaker claims that, in return for his denunciations, Agoratus “expected that [he] would get something significant from them [i. e., the Thirty]” (mevga ti w[/ou par∆ aujtw'n diapravxesqai, § 53); elsewhere he proposes that Agoratus was impelled by the slightly more specific, but considerably less realistic, hope of receiving Athenian citizenship under the new regime (meqevxei~ th'~ tovte politeiva~ kaqistamevnh~, § 61). Moreover, the only considerations granted to Agoratus by the Thirty that the prosecution is able to adduce are Agoratus’ having been spared the death penalty and named a “benefactor” (euergetês, § 38: above, p. 208). Evidently, Agoratus’ accusers were able to discover no concrete advantages gained by the defendant from his activities under the Thirty, quite possibly because there were none to find. The prosecution’s failure to identify a discrete and plausible motive might seem to call into question Agoratus’ alleged volition in the denunciations he made; however, while the speaker’s attempt to prove motive lacks substance, the case made for Agoratus as a willing instrument of the Thirty is quite compelling, at least on the surface. Agoratus will contend that he informed against his will (a[kwn: §§ 28, 52– 53); and the prosecution expects him to attempt to excite the jurors’ pity,49 presum48 Lys. 12.28: “I think that the rest of the Athenians have sufficient grounds for placing the blame for past events on the Thirty; but as for the Thirty themselves, if they place blame on their own group, how can you be expected to accept that?” 12.90: if the jurors acquit Eratosthenes, “you will not be able to say that you did what the Thirty ordered you to do.” 12.31: “if we must pardon those who destroyed others for the sake of their own safety....” 49 The speaker anticipates Agoratus’ captatio misericordiae at § 33: “That [Agoratus] was responsible for all the city’s ills, and that he deserves to be pitied by not a single person (oujd∆ uJf∆ eJno;~ aujto;n proshvkei ejleei'sqai), I think I can summarily demonstrate.” Cf. §§ 43–44: “It grieves me to recount the calamities that befell the city, but I must do so, men of the jury, at the present moment, so that you may know how exceedingly you should pity Agoratus (wJ~ sfovdra uJmi'n ejleei'n proshvkei ∆Agovraton).” On the prevalence of Athenian defendants’ appeals to pity see Carey (1994) 33.

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ably by claiming that, like so many Athenians caught up in the horrors of the oligarchic regime, he acted under duress and out of fear for his own life. At one point, the speaker halfheartedly attempts to dismiss the relevance of volition, proposing that some involuntary acts are so heinous that they demand retribution regardless of the level of intent involved (§ 52). Aware, however, that such an argument might not dispel the compassion that the jury might feel for an individual coerced into doing terrible things by the tyrants, the prosecution mounts an extensive anticipatory rebuttal of Agoratus’ plea of fear and duress. Expecting that the question of Agoratus’ volition will play a crucial role in the jury’s decision, Lysias devotes considerable energy to proving that Agoratus’ actions resulted from his own free will. The prosecution accordingly emphasizes that Agoratus acted voluntarily (eJkwvn) at every crucial juncture leading up to the executions of his victims. When the second delegation of councillors came to bring Agoratus before the boulê, he willingly stood up from the altar at Munychia (eJkw;n ajnevsth ∆Agovrato~ ajpo; tou' bwmou', § 29). He then willingly informed against the generals and taxiarchs, his sureties, and a number of additional citizens (eJkw;n ejmhvnuse, § 19; eJkw;n ajpogravfei, § 31). In so doing, he willingly consigned these men to their deaths (eJkw;n...pollou;~ kai; ajgaqou;~ ∆Aqhnaivwn ajpevkteina~, § 28); that is, when Agoratus gave his information, he was aware of the consequences: he possessed intent not only as to his act (the denunciations) but as to its result (the inevitable, or at least highly probable, deaths of the individuals so incriminated).50 50 I borrow this terminology from the Model Penal Code, produced in 1962 by leading scholars of American criminal law (Robinson [1995] 62–63; the text of the Code is reproduced ibid. pp. 699–797). The Model Penal Code distinguishes three objective elements of an offense (§ 1.13(9)): conduct (e. g., A throws a javelin), circumstance (B runs across the path of the javelin), and result (B dies). Where the Code discriminates among up to four levels of culpability, depending on the offense – in decreasing order, “purposeful,” “knowing,” “reckless,” and “negligent” (§ 1.13(11)–(15)) – Athenian homicide law had only two grades of culpability, intentional (eJkwvn) and unintentional (a[kwn: above, p. 59 with n. 4; on these terms generally cf. Rickert [1989]). While Athenian homicide law did not formally partition offense elements in the manner of the Model Penal Code, we nonetheless find that, in at least some instances, Athenians did recognize that an actor could possess different grades of intent with regard to the elements of conduct and result, and that these differences could be significant in determining trial venue and liability. The application of Draco’s provision on lawful homicide during an athletic contest, which released from liability those who killed ejn a[qloi~ a[kwn (Dem. 23.53 [lex]), must often have relied upon a (tacit) distinction between conduct and result. In a boxing or pancration match, for example, the competitors were, by the nature of the event, eJkovnte~ as to conduct: they punched (and, in the case of the pancration, kicked, threw and choked) each other voluntarily. In the case of a fatality, then, the factor that determined liability was the killer’s intent as to result: did he mean to kill his opponent? In Antiphon 3 (Second Tetralogy), both the prosecution and the defense stipulate that the defendant is eJkwvn as to conduct (throwing a javelin) but a[kwn as to result (the death of a boy who runs across the training ground and is hit by the javelin). The prosecution’s stance on the thrower’s culpability as to result results in a charge of unintentional rather than intentional homicide. (We might observe that, since the prosecution admits that the defendant was a[kwn as to result, Draco’s law should have immunized him. Antiphon, however, was not writing for an exclusively Athenian audience – as indicated, for example, by the repeated reference by litigants in the Tetralogies to a patently nonDraconian, and presumably hypothetical, homicide law prohibiting “both unjust and just kill-

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While it was one thing to say that Agoratus was eJkwvn, it was quite another to prove it. The speaker supports this contention by presenting an apparent abundance of evidence that makes a persuasive, but far from definitive, case for Agoratus’ volition. To begin with, the prosecution’s account of the process that culminated in the Council’s first attempt to arrest Agoratus is compromised by some significant gaps. According to the speaker, the Council had already arranged to have Agoratus give information when Theocritus, a close friend of Agoratus, testified in secret before the Council regarding a democratic conspiracy. The testimony of Theocritus allegedly set the stage for Agoratus’ denunciations, making them appear to be the result of coercion rather than premeditation (§§ 19–22). However, as Theocritus, by the speaker’s admission, refused to name names when called before the Council, the prosecution can posit no clear causal connection between the denunciations of Theocritus and the subsequent apprehension of Agoratus other than the friendship between the two men. The speaker presents the anonymity of Theocritus’ testimony as evidence of prearrangement; but if the reason for questioning Theocritus was simply to produce a conspicuous and credible pretext for the arrest of Agoratus, and if both men were in league with the oligarchic conspirators (as implied by the prosecution’s characterization of the entire process as “the result of preparation” [ejk paraskeuh'~, § 22]), we would expect Theocritus to have given the Council Agoratus’ name. If the speaker is accurately representing the contents of Theocritus’ testimony, we must presume that the resulting decree of the Council targeted known associates of Theocritus, including Agoratus; we need not, however, conclude that either Theocritus or Agoratus was already conspiring with the oligarchs on the boulê. It should further be noted that the speaker later gives the names of two other men “who were summoned by the boulê on the same charge” – and presumably as a result of the same decree – as Agoratus: Hippias of Thasos and Xenophon of Curium (§ 54). Neither of these men is connected to Theocritus or to Agoratus, and both were executed. Their places of origin indicate that, like Agoratus (and probably Theocritus),51 they were metics. It is therefore a distinct possibility that the Council ing”: e. g., Ant. 3 b 9; pace Gagarin [1997] 151). The hypothetical lawsuit in Antiphon 4 (Third Tetralogy) arises from the death of a man in a fistfight (Ant. 4 b 2). The defendant asserts that he did not mean to kill the man (i. e., that he was a[kwn as to result); nonetheless he faces the death penalty if convicted (4 b 7). Therefore, if Antiphon intended this lawsuit to reflect Athenian practice (see the caveat above), then, whether he envisioned the venue as the Areopagus (so Gagarin [1997] 160–61) or the Delphinion (on the basis of the defendant’s plea of lawful homicide on the grounds of self-defense), the defendant was on trial as an accused intentional killer. Lastly, when the border dispute between the brothers Thudippus and Euthycrates resulted in Euthycrates’ death (Isae. 9.17–19: see chapter 3), the family may well have concluded that Thudippus was a[kwn as to result (that is, that he meant to beat his brother but not to kill him), and this consideration may have played a role in their decision not to prosecute Thudippus for homicide. 51 Lysias names him as “Theocritus, called the son of Elaphostictus” (§ 19). ∆Elafovstikto~ means “marked (i. e., tattooed or branded) with a stag”: presumably Theocritus’ father had been a slave or freedman who received this name (or nickname) from such an identifying mark, and Lysias employs the patronymic in order to demean Theocritus’ origins. The very use of a patronymic, however, implies that Theocritus was not a slave.

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passed this decree for the specific purpose of rounding up potentially troublesome metics; such a move would then foreshadow the decision made by the Thirty soon thereafter to arrest the ten metics who included Lysias and Polemarchus (Lys. 12.6– 7: above, pp. 166–67). Pursuant to the decree issued in response to Theocritus’ statement, the Council dispatched a deputation to apprehend Agoratus. While the events preceding the passage of the decree give no clear indication of the existence of a conspiracy, much less Agoratus’ willing participation in it, the prosecution is on much firmer ground beginning with the Council’s first effort to arrest Agoratus. On this first attempt the assigned councillors found Agoratus in the agora of the Peiraeus but were prevented from executing his arrest by a number of bystanders who volunteered to stand surety for him. The speaker specifies three of these sureties by name: Nicias (PA 10774), Nicomenes (PA 10967), and Aristophanes of Cholleidae (PA 2096) (§§ 23, 58–59). These may well have been the only three: Demosthenes (24.144) cites a law exempting from incarceration men subject to apagogê who could provide three sureties belonging to the same Solonian property class as themselves.52 After registering the names of Agoratus’ sureties, the councillors returned to Athens, while the sureties and Agoratus retired to the altar of Artemis on Munychia and there pondered what to do next (§ 24). The prosecution asserts that, from their position of sanctuary in the Temple of Artemis, the sureties and all the surrounding bystanders passionately urged Agoratus to leave Attica; the sureties even volunteered to provide the needed vessels and accompany him themselves, fearing that if Agoratus obeyed the summons, he might be compelled under torture to divulge the names of innocent Athenians suggested to him by the boulê. Despite the dire consequences envisioned by his sureties and their assurances of his safety, Agoratus declined the opportunity to escape. The speaker posits Agoratus’ refusal as evidence of his complicity with the Council, arguing that he would only have remained in Attica if he had already received a guarantee from his co-conspirators that he would come to no harm (§§ 24–26). On its face, this argument appears convincing: by leaving Attica, Agoratus would have ensured his own safety and avoided the possibility of endangering the lives of others; conversely, the likelihood of grave personal harm attending a decision to stay was so evident as to preclude such a choice, unless Agoratus knew something his sureties did not. That is, Agoratus’ neglect of an obvious risk implies the existence of a countervailing reward, which in turn allows Lysias plausibly to impute motive to Agoratus – even though, as we have seen, he is unable to specify what it was. Before accepting the conclusion drawn by the prosecution from Agoratus’ insistence on remaining in Attica, however, we should play the devil’s advocate and consider some additional factors that might have influenced his decision. Most fundamentally, choosing to go into voluntary exile was not a decision to be made lightly, especially for a person of Agoratus’ status. Leaving Attica was onerous enough for those prominent Athenians who suffered ostracism, who were wealthy men with influential connections in foreign cities; for Agoratus, despite the support 52 Harrison (1968–71) 2.221.

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offered by his sureties, the prospect may have been financially untenable as well as emotionally unbearable. Furthermore, Agoratus’ flight would have been construed as an admission of guilt, and therefore, in spite of his sureties’ alleged suggestion that he leave the country “until things settled down” (e{w~ ta; pravgmata katastaivh, § 25), in reality Agoratus might have incurred effective perpetual exile and was thus faced with the prospect of leaving Attica not temporarily but permanently. In assessing the fidelity of Lysias’ narrative, moreover, we should take into consideration the fact that, at the time of Agoratus’ trial, the sureties to whom the prosecution ascribes the proposal of removing Agoratus from Attica are all apparently dead. Agoratus denounced his sureties along with the generals and taxiarchs, and while some of these incriminated individuals managed to escape, the survivors did not include Aristophanes of Cholleidae (whom, in describing his execution at §§ 58–59, Lysias credits with providing the vessels that were to convey Agoratus and his sureties out of Attica). Presumably Nicias and Nicomenes met a similar fate: although the speaker calls witnesses to testify at § 28, he does not specify their identities, as we would expect him to do if they were among the individuals named in the preceding narrative; we should therefore assume that these witnesses were (or claimed to be) among the bystanders who witnessed the first attempt to apprehend Agoratus and/or the resulting deliberations at the Temple of Artemis. Therefore, while the prosecution’s account of Agoratus’ behavior at this stage is carefully constructed so as to present a cogent and convincing argument for premeditation and collusion with the nascent oligarchy, it may well rest on a very precarious factual basis. Agoratus’ recalcitrance toward the first deputation sent to arrest him resulted in the passage of a second decree by the Council and the dispatch of a second posse to Munychia, which succeeded in removing Agoratus from the altar of Artemis and delivering him to the Council. Prosecution and defense dispute the circumstances of Agoratus’ removal: Agoratus alleges that he was taken away by force (biva/ fhsi;n ajfaireqh'nai), while the speaker contends that he accompanied the arrest party voluntarily (eJkw;n ajnevsth...ajpo; tou' bwmou', § 29). This is a crucial detail in the case, since Agoratus’ arrest led directly to the denunciations he made before the Council and later before the Assembly. The prosecution’s account of this event supports its depiction of Agoratus as a willing accessory to the establishment of oligarchy, while the scenario presented by Agoratus is consistent with his claim to have acted under duress. Under other circumstances, Lysias would have been happy to accept Agoratus’ version: in the Against Eratosthenes, as we have seen (above, p. 177), Lysias posited the violation of the norms of religion as one of the tyrants’ defining characteristics, and that speech contains several references and allusions to the forcible removal of individuals from altars that parallel exactly Agoratus’ account of events on Munychia. But here the prosecution’s need to establish Agoratus’ volition trumps the opportunity to disparage the proponents of oligarchy, and so the speaker must assert that Agoratus left Munychia voluntarily. Again, though, even if we accept the basic contention of the prosecution that Agoratus’ removal from the altar required no use of force, we need not construe such behavior as an automatic indicator of complicity. The contents of the second decree of the Council are neither preserved under the relevant lemma nor discussed

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in the surrounding narrative, but we may reasonably conjecture that it was an ad hominem measure mandating Agoratus’ arrest and possibly invalidating his right to postpone apprehension by means of sureties: there would have been no point in passing a second decree if its terms were no more stringent than those of the first. Consequently, Agoratus may simply have run out of options: having (allegedly) declined the offer to escape Attica, he now had no choice as to whether he would appear before the Council, but merely when and how. Just as fleeing Attica would have resulted in the presumption of Agoratus’ guilt, so compelling his arrest party to drag him kicking and screaming from the altar of Artemis, or otherwise endeavoring to resist arrest or to interject further delays, would presumably prejudice the Council against him. He may, therefore, have felt that the safest course of action at this point was to obey the summons without a fuss. Further, if the prosecution is falsifying the conspiracy between Agoratus and the boulê, then the distinct possibility arises that unless one or both decrees specified a charge, Agoratus had no idea why he was being sought for questioning: the prosecution admits, after all, that the testimony of Theocritus that preceded Agoratus’ arrest was given before the Council in secret (§ 21). Lastly, it should be noted that the speaker calls no witnesses to support his allegation that Agoratus voluntarily abandoned sanctuary; this omission naturally raises suspicions, since witnesses do testify to the deliberations between Agoratus and his sureties, which occurred in the same location and immediately preceded Agoratus’ departure. When brought before the Council, Agoratus named his sureties, the generals and taxiarchs, and certain other citizens. But according to the prosecution, the boulê was not satisfied that Agoratus had given them all the relevant information, and so Agoratus listed still more individuals. “All of these men,” says the speaker, “he denounced willingly, with no compulsion upon him” (touvtou~ me;n ou\n a{panta~ eJkw;n ajpogravfei, oujdemia'~ aujtw'/ ajnavgkh~ ou[sh~, § 31). Agoratus then repeated his testimony before the Council in regard to the generals and taxiarchs53 at a subsequent meeting of the Assembly held at Munychia (§§ 31–32). Agoratus evidently conceded that he had given these names to the Council and the Assembly (§§ 29, 32) but disputed the voluntary nature of his testimony. While Agoratus will plead that he testified under coercion, his prosecutors portray these denunciations as the premeditated (and therefore a fortiori voluntary) culmination of a plot previously arranged between Agoratus and the oligarchs on the Council, and Agoratus’ willingness to add names to his list of incriminated men at the behest of the Council further substantiates the accusation of collusion. Once again, though, a seamless prosecutorial narrative conceals a problematic evidentiary omission. The prosecution characterizes Agoratus’ testimony as voluntary and rebuts his defense of coercion without calling supporting witnesses. In statements attributed to Agoratus’ sureties, the 53 The prosecution alleges (§ 32) that Agoratus appeared before the Assembly because “certain people were greatly concerned that a denunciation concerning the generals and taxiarchs occur in the Assembly as well (concerning the others the denunciation that took place in the Council alone was sufficient).” § 33 implies that the lists given by Agoratus to the Council and to the Assembly were not identical: “...Agoratus listed the names of those men, both the names [listed] in the Council and the names [listed] in the Assembly....”

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speaker himself had earlier raised the issue of torture, which the Council might employ against Agoratus due to his non-citizen status; but the prosecution adduces no specific evidence, merely its vague overarching theory of complicity between Agoratus and members of the boulê, to prove that the Council did not compel Agoratus’ testimony by torture. In order to complete his argument for Agoratus’ volition, the speaker contends that Agoratus not only denounced his victims voluntarily but knew that the information he gave would result in their executions; he therefore made a deliberate choice to cause the deaths of innocent men (above, p. 215). This is inherently the most difficult element of Agoratus’ intent for the prosecution to prove. In the absence of a clear declaration of intent to kill, the issue in question consists entirely of Agoratus’ internal mental state; a definitive answer is therefore elusive, and the prosecution accordingly resorts to circumstantial evidence, arguments from probability, and the dying declarations of Agoratus’ victims. While Lysias had good reason to expect that such arguments might sway the jury toward a conviction, this is, in fact, the weakest point in the prosecution’s volitional argument. The most compelling evidence for Agoratus’ presumed expectation that his testimony would result in the deaths of the men he incriminated appears in the context of the trial of the generals and taxiarchs, where Lysias employs an implied argument from probability that approaches the “reasonable man” standard of the modern Anglo-American common law. The speaker presents the conviction and execution of the men condemned by Agoratus as a foregone conclusion. Just before their trial, the Thirty had seized power, and so all Athenians recognized the hopeless state of affairs in the city; and “you yourselves know,” the speaker tells Agoratus’ jury, “the sort of trial that took place.” The intimidating presence of the Thirty and the lack of secrecy in the balloting guaranteed that the Council would convict the defendants, and they were all predictably sentenced to death, with the sole exception of Agoratus, who was acquitted (§§ 34–38). By this reasoning, since everyone else knew the result of the trial in advance, Agoratus must have known as well, and Agoratus’ awareness that executions were the certain outcome of his denunciations constitutes intent to kill. The fatal flaw in this argument is that it substitutes the clarity of hindsight for the uncertainty of prospect. Athenian democrats (and at least some Athenian oligarchs) who had lived through the regime of the Thirty looked back on it with revulsion as a reign of terror that featured numerous atrocities and culminated in civil war. But no one could have predicted, much less assumed, such an outcome at the time of the trial of Agoratus’ victims. The Council tried the generals and taxiarchs immediately (eujqevw~) after the establishment of the Thirty (§ 35); at that point the Athenians did not yet know what the new government would be like, except that it would be an oligarchy. Moreover, Xenophon explicitly contradicts Lysias’ picture of universal dread in stating that the Athenians initially applauded the Thirty’s crackdown on sycophancy by means of trials before the boulê (Hell. 2.3.12: above, p. 140). Not only, then, was the verdict not preordained in the mind of the average Athenian (irrespective of the intentions of the Thirty), but the dêmos may not have regarded the conviction and execution of the generals and taxiarchs as a travesty of

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justice at the time, despite the prosecution’s repeated and vehement assertions and regardless of subsequent hindsight that might view the event as a harbinger of the future course of the oligarchy. The speaker also castigates the tyrants for transferring the trial of Agoratus’ victims to the Council from a dikastêrion of 2,000, as had been decreed by the Assembly, and contends that a jury-court would have easily (and justly) acquitted the defendants. The size of the proposed jury, however, indicates the seriousness with which the Assembly took the charges and therefore militates against the speaker’s assumption of automatic acquittals. Much as Agoratus’ jurors may have appreciated the foresight credited to them by the prosecution, an Athenian watching the trial of the generals and taxiarchs in the Council Hall in 404, at the outset of the reign of the Thirty, could hardly have assumed in advance that the verdict and sentence were predetermined, any more than if the trial had been held in a dikastêrion. An intent to kill, therefore, cannot be ascribed to Agoratus on the basis of “what everybody knew”; rather, its presence depends wholly on the degree of specific complicity between Agoratus and the leading oligarchs. Acceptance of the prosecution’s allegation of a premeditated conspiracy involving prominent Athenian oligarchs and Agoratus (and possibly Theocritus) permits the conclusion that Agoratus intended the deaths of his victims. Yet we can identify some crucial developments leading to the executions of the generals, taxiarchs, and others that Agoratus could not have foreseen, much less intended. Although he may have been aware of (and even complicit in) an oligarchic movement in Athens, Agoratus could not have known that the men he informed against under the democracy would be tried under an oligarchy. He could not have known that, between his denunciations and the resulting trial, Athens would surrender to Sparta and install the Thirty. Finally, he could not have known that the Thirty would countermand a decree of the Assembly and put his victims on trial before the Council of 500. To a modern observer, at a significant remove from the events of 404/3, these factors severely compromise the prosecution’s contention that Agoratus intended the deaths of the men against whom he testified. For the Athenian jurors judging Agoratus’ case, an accurate assessment of Agoratus’ intent to kill will have depended on their ability to resist Lysias’ powerful rhetoric and their willingness to recall the state of affairs in the summer of 404 to the exclusion of subsequent events. For the prosecution, further proof that Agoratus intended the deaths of his victims, and, more broadly, that he bore direct responsibility for their executions, comes in the form of their dying injunctions. Had Dionysodorus and the others considered Agoratus to be an unwilling instrument of the Thirty, they could have enjoined their kinsmen to exact revenge on the tyrants or on whoever prosecuted them; they might even have pardoned Agoratus and thereby safeguarded him from retaliation (above, p. 65). Instead, according to the speaker, the men denounced by Agoratus unanimously named him as their killer and ordered vengeance against him. Dionysodorus charged his friends and family to seek retribution and instructed his wife to tell his unborn child “that Agoratus killed (ajpevkteine) its father, and to order it to get vengeance on his behalf against the man who was his killer (wJ~ foneva o[nta)” (§§ 41–42: above, pp. 66–67). Agoratus’ other victims, too, expressly named

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him as their killer (wJ~ foneva o[nta) and mandated vengeance accordingly (§ 92). If, in accordance with the prosecution’s arguments, the jurors see themselves as philoi of the victims rather than as impartial arbiters of Agoratus’ guilt or innocence, they are bound to accept and adopt the victims’ assessment of Agoratus’ intent and to judge him a voluntary killer (cf. § 93: above, pp. 206–7). Throughout the Against Agoratus, Lysias employs constant repetition to reinforce the contention that death was the automatic and intended result of Agoratus’ denunciations, and that the prosecution therefore accurately places blame for the killings on Agoratus. Having recounted Agoratus’ testimony before the Council and Assembly, the speaker concludes, “That the defendant Agoratus listed the names of those men (ajpevgrayen...tw'n ajndrw'n ejkeivnwn ta; ojnovmata), both the ones in the Council and the ones in the Assembly, and that he is their killer (e[sti foneu;~ ejkeivnwn), I think you pretty well know” (§ 33). From that point on, he describes Agoratus interchangeably, and often simultaneously, as an informer (using the verbs (kata)mhnuvw and ajpogravfw and the corresponding nouns mhvnusi~ and ajpografhv) and as a killer (using the verb ajpokteivnw/ajpovllumi of Agoratus or ajpoqnhv/skw/ ajpovllumai of his victims, often in conjunction with a reference to Agoratus as ai[tio~, and labeling Agoratus foneuv~ and ajndrofovno~).54 Only at the very end of the speech does the prosecution ascribe to Agoratus an actual desire to kill, as distinguished from the alleged reasonable assumption that his testimony would lead directly to his victims’ executions. Expanding upon his earlier observation that the Thirty absolved Agoratus and named him an euergetês in return for his testimony (§ 38), the speaker asserts in his concluding argument that the tyrants “acquitted Agoratus because he seemed to destroy [his victims] eagerly” (∆Agoravtou de; ajpeyhfivsanto, diovti ejdovkei proquvmw~ touvtou~ ajpolluvnai, § 96: emphasis mine). While Agoratus’ alleged zeal to condemn his victims to death provides a plausible motive for the Thirty to reward him as a benefactor in addition to acquitting him, the prosecution adduces no evidence to prove its claim. In the end, therefore, the entire case for Agoratus’ volition hinges upon the prosecution’s assertion of knowing and complicit involvement by Agoratus in the oligarchic conspiracy that resulted in the 54 §§ 41–42 ai[tio~ h\n tou' qanavtou...ajpevkteine...foneva; § 43 ajpografevnte~ ajpevqanon...ai[tiov~ ejstin ajpokteivna~ ejkeivnou~; § 48 ajpevkteina~ mhnuvsa~; § 49 Agoratus must show wJ~ ouj katemhvnuse tw'n ajndrw'n touvtwn oujd∆ ai[tio~ aujtoi'~ ejsti tou' qanavtou; § 51 ajpevgrayen... ejmhvnuse; § 53 ajpevkteina~ bis; § 54 ajpevqanon; § 55 tw'n ajpografw'n touvtwn...Menestratus ajpegravfh uJpo; tou' ∆Agoravtou...ajpografevnta~ ajpolevsqai; § 57 tovn te Menevstraton ajpogravya~ ai[tio~ ejkeivnw/ ejsti; tou' qanavtou, kai; toi'~ uJpo; Menestravtou ajpografei'si tiv~ aijtiwvtero~...; §§ 58–59 had Agoratus followed the advice of Aristophanes of Cholleidae, ou[t∆ a]n ∆Aqhnaivwn oujdevna ajpwvlesa~...nu'n de; kai; to;n swth'ra to;n sautou' ejtovlmhsa~ ajpogravyai, kai; ajpogravya~ 〈ajpevkteina~〉 kai; ejkei'non kai; tou;~ a[llou~ ejgguhtav~; § 61 Aristophanes uJpo; sou' ajpolluvmeno~ toioutosi; ejgevneto...peisqei;~ de; wJ~ suv ge, a]n ejkei'noi ajpovlwntai, meqevxei~ th'~ tovte politeiva~ kaqistamevnh~, ajpevgraya~ kai; ajpevkteina~ ∆Aqhnaivwn pollou;~ kai; ajgaqouv~; § 64 ∆Agovrato~ tou;~ me;n ajpevkteine, tou;~ de; fugavda~ ejnteu'qen ejpoivhse; § 81 ajndrofovnon; §§ 85–87 passim (above, p. 187); § 92 foneva; § 93 ajpevqnh/skon...foneva; § 94 to;n ai[tion o[nta ejkeivnoi~ tou' qanavtou; § 95 uJpo; tw'n triavkonta kai; ∆Agoravtou toutoui; ajpevqanon...to;n ai[tion touvtwn...ajpodevdeiktai...kai; ejk tw'n ajpografw'n kai; ejk tw'n a[llwn aJpavntwn ∆Agovrato~ w]n aujtoi'~ ai[tio~ tou' qanavtou.

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regime of the Thirty. If the jurors believe that Agoratus voluntarily and substantively colluded with the oligarchs in their attack on the democracy, which was championed by the generals and taxiarchs and represented by Agoratus’ sureties and the other men he incriminated, and if the jurors further identify themselves generally as democratic adversaries of the Thirty and specifically as allies of Agoratus’ victims, then the prosecution expects them to convict Agoratus without compunction.

Agoratus’ conduct Owing to the nature of the respective trials, the Against Agoratus focuses much more explicitly on the deaths of Dionysodorus and Agoratus’ other victims than the Against Eratosthenes does on the death of Polemarchus: at Eratosthenes’ euthynai his entire conduct in office was fair game, while the charge in the apagôgê of Agoratus was the specific killing of Dionysodorus. However, as the prosecution aligns Agoratus with the Thirty in establishing the boundaries of enmity, both the individual adversarial conduct of Agoratus and the general adversarial conduct of the Thirty are germane to its case; and as in the Against Eratosthenes, the impropriety ascribed both to the individual defendant and to the larger faction with which he associated himself contributes to the prosecution’s argument in favor of conviction. Even before his denunciation of the generals and taxiarchs, according to the speaker of Lysias 13, Agoratus had a history of despicable behavior, including the seduction of Athenian citizen women (especially heinous conduct given Agoratus’ lowly origins) and sycophancy. As we observed in connection with Lysias’ allegations of oligarchic motives in the Against Eratosthenes (above, p. 168), the Athenians viewed sycophancy as the antithesis of proper antagonistic behavior. In the Against Agoratus, accordingly, the speaker adduces as examples of Agoratus’ “evil and shameful behavior” (kaka; kai; aijscrav) an unspecified number of private prosecutions (divka~ ijdiva~), public prosecutions (grafav~), and denunciations (ajpografav~) that Agoratus initiated for sycophantic purposes, and alleges that the Assembly and courts have condemned and fined Agoratus as a sycophant on multiple occasions (§ 65).55 Inspired by his record as a habitual (if not necessarily successful) sycophant, the oligarchic conspirators suborned Agoratus to inform against the generals and taxiarchs who were attempting to obstruct Theramenes’ peace plan, taking care to enhance his credibility by concocting the ruse involving Theocritus and so 55 I take the phrase muriva~ dracmav~, referring to the amount Agoratus has been fined, to mean “countless drachmas,” not “10,000 drachmas” (both muvrio~ “10,000” and murivo~ “countless” have the feminine accusative plural muriva~). We need not assume that Agoratus was ever tried and convicted in a graphê sykophantias (as, e. g., Frohberger [1882] 102–3; for the procedure cf. [Arist.] Ath. Pol. 59.3; Todd [1993] 109) or by probolê (Bearzot [1997] 310; Todd [2000] 153 n. 40); it is more probable that he fell victim (perhaps several times) to the rule that imposed a fine of 1,000 drachmas on any prosecutor in a graphê who received less than one-fifth of the jury’s votes (Phillips [2004] 226 n. 35).

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creating the appearance of compulsion (§§ 18–19: above, p. 216). The speaker insists that Agoratus neither participated in nor otherwise knew of the plans of the generals and taxiarchs; the oligarchs nonetheless decided that Agoratus was suitable for their purposes. Thus the prosecution depicts both Agoratus and the oligarchs who recruited him as dishonorable echthroi: Agoratus denounced the generals and taxiarchs unjustly (ajdivkw~, § 27),56 on the basis of fictitious evidence, and his handlers encouraged him to do so with full knowledge that they were suborning a lie. Significantly, although the speaker accuses Agoratus of sycophancy elsewhere, he does not brand him a sycophant in connection with the denunciations of the generals and taxiarchs, presumably because Agoratus’ goal in making these denunciations was not to extort blackmail payments or secure monetary judgments from his victims but to gain favor and benefits from the government. Nonetheless, an underlying constant of groundless accusations connects his sycophantic lawsuits with his denunciation of the generals and taxiarchs, thereby allowing the prosecution to present all these acts together as indicative of a consistently dishonorable antagonist. Moreover, Agoratus’ similar prior bad acts lend credence to the prosecution’s contention that the generals and taxiarchs were innocent of any wrongdoing – or at least that Agoratus possessed no information that would have incriminated them. The speaker asserts the innocence of Agoratus’ victims not merely for the purpose of rehabilitating his kinsman Dionysodorus but also in order to anticipate and eliminate one of Agoratus’ projected lines of defense. He later argues that, in order to secure an acquittal, Agoratus must prove either that he did not cause the deaths of Dionysodorus and the others or that he did so with justification (dikaivw~: § 84). For Lysias thus to open the door for a justification defense would constitute a grave tactical error unless he and his clients knew, or could confidently predict, that Agoratus planned to raise the issue of justification on his own. In his defense, therefore, Agoratus presumably argued that he had possessed incriminating information regarding the generals and taxiarchs and that the validity of his testimony had been proven not only by their conviction (which, by itself, the jury might well discount, since it occurred under the Thirty) but by the fact that his statements had led the Assembly to order the generals and taxiarchs put on trial before the Thirty seized power, while Athens was still a democracy. Some of his jurors may well have attended the relevant Assembly meeting; and Agoratus, as well as his prosecutors, could exploit the common rhetorical construct of jury and Assembly as equivalent manifestations of the Athenian people (above, p. 157). Both prosecution and defense could reasonably expect the jurors’ assessment of Agoratus’ justification defense to be a cardinal consideration in their votes: if Agoratus convinced the jury that he had denounced the generals and taxiarchs with justification (dikaivw~), he had a better chance of securing an acquittal, while if the jury adopted the prosecution’s position that Agoratus had fabricated his testimony and had therefore informed without justification (ajdivkw~), it would be more likely to convict. 56 Cf. § 60: in contrast to Agoratus, Aristophanes of Cholleidae “chose to die rather than to make denunciations and destroy men unjustly (ajdivkw~).”

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Motives and conduct of the oligarchs While Lysias foregrounds the actions of the individual defendant to a greater degree in this speech than in the Against Eratosthenes, an effort is also made to portray the oligarchs’ conduct in the dispute as generally reprehensible, both before and after the installation of the Thirty. In contrast to the forthright tactics implicitly praised as normative under the democracy, and evidenced by the prosecution in its quest for vengeance against Agoratus, the oligarchs’ methods of pursuing their enemies are characterized as deceptive and manipulative. The earliest incidence of such behavior mentioned in the Against Agoratus predates not only the establishment of the Thirty but the activities of Agoratus himself. The prosecution alleges that, in coordination with Theramenes’ mission to Sparta, his oligarchic co-conspirators in Athens brought a lawsuit against the demagogue Cleophon (§ 12). Such action was expected of enemies, both personal and political, and in itself accorded perfectly with the Athenian ethic of retaliation. But Cleophon’s prosecutors broke the rules by misrepresenting their grounds for litigation: the pretext (provfasin) they employed in order to bring Cleophon to court – an allegation that he had deserted his post in the field57 – concealed their actual motivation for prosecution (to; d∆ ajlhqev~); namely, that he was obstructing the partial dismantling of Athens’ Long Walls, an element in the Spartan peace proposal endorsed by Theramenes. The oligarchs then compounded their deception by rigging Cleophon’s jury (dikasthvrion paraskeuavsante~), thereby obtaining a capital conviction on a trumped-up charge (ejn th/' profavsei tauvth/). This combination of deceitful accusations and manipulation of the machinery of law continues (and, in Lysias 13, reaches its apex) in the subsequent prosecution of the generals and taxiarchs. These men, according to the prosecution, recognized that the oligarchs were using the peace negotiations as a pretext in order to realize their actual goal of overthrowing the democracy (§ 15). The speaker thus posits duplicity as a general overarching characteristic of the oligarchic movement from its inception, which manifested itself with particular flagrancy, but not solely, in the form of forensic attacks. By their assault on the generals and taxiarchs, who threatened to expose their deception, the oligarchs intended, as in the case of Cleophon, to remove perceived obstacles to the treaty proposed by Sparta and sponsored by Theramenes; their success in eliminating Cleophon led them to employ similar methods against their new targets. First the conspirators concocted false charges, characterized by the speaker as “slanders” (diabolav~, § 17). They then conceived a plot (ejpiboulh;n...ejpibouleuvousi, § 18) to incriminate the generals and taxiarchs by suborning Agoratus and arranging for him to give fraudulent testimony before the Council and Assembly. In preparation for Agoratus’ testimony, the oligarchs first summoned Theocritus to testify before the boulê in secret (§ 21); from the point of view of Agoratus’ prosecutors, the conspirators’ decision to conceal this 57 Cleophon was probably tried by graphê lipotaxiou: cf. Lys. 14, esp. § 5; Andoc. 1.74; Aeschin. 3.175–76; Lyc. 1.147; Carey (1989) 143ff.; Phillips (2004) 225 n. 9. According to Dem. 15.32 (and perhaps Lys. 14.8–9), this procedure carried a penalty of atimia upon conviction, but during the Peloponnesian War the penalty may have been death.

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initial move from the public eye fundamentally undermines the credibility of the accusations they subsequently brought. Agoratus’ appearance before the Council and Assembly marks the transition from clandestine conspiracy to open deception and manipulation. In consequence of Agoratus’ denunciations, the Assembly passed a decree dictating that the accused persons be tried by a dikastêrion of 2,000 jurors. The preliminary hearing by the Assembly and its referral of the case to a dikastêrion indicate that the prosecution proceeded by eisangelia, presumably charging that, in resisting the proposed peace, the generals and taxiarchs were either misleading or betraying the Athenian people.58 Before the trial could take place, however, Athens surrendered to Sparta, and the Thirty assumed office, countermanded the decree of the Assembly, and transferred the lawsuit to their hand-picked Council of 500. The tyrants thus perverted justice and violated the rules governing echthroi by depriving the generals and taxiarchs of the opportunity to defend themselves before a jury that represented the entire Athenian citizen body and compelling them instead to submit to the predetermined judgment of chosen partisans of the new oligarchy (above, p. 221). In presuming the jury’s familiarity with the course of the trial of the generals and taxiarchs (“you yourselves know the type of trial that took place,” § 36: above, p. 220), Lysias both expects and encourages Agoratus’ jurors to view these proceedings as a characteristic example – and possibly the first instance – of the maladministration of justice that was standard operating procedure under the Thirty. The speaker nonetheless describes the trial in detail, so as to illustrate not only the tyrants’ customary tactics in committing judicial murder but also their perversion of the accepted standards of philia and echthra. Even though the Thirty had remanded the lawsuit to the Council, they apparently did not trust their own partisans to render the appropriate verdict and so resorted to intimidation. The tyrants sat in the front row of the Council Hall and monitored each councillor’s vote by dispensing with the customary secret ballot, instead compelling the members of the boulê to cast their votes openly by placing their ballots on tables, one containing votes to convict and the other votes to acquit.59 The coercion thus applied by the Thirty ensured the conviction of the defendants: the speaker asks his 58 Bearzot (1997) 291; on eisangelia see Hansen (1975), (1980); Rhodes (1979). Hyp. 4.7–8 preserves the eisangelia statute, which includes clauses rendering liable to impeachment anyone who “subverts the Athenian people” (to;n dh'mon to;n ∆Aqhnaivwn kataluvh/), commits military treason (povlin tina; prodw'/ h] nau'~ h] pezh;n h] nautikh;n stratiavn, “betrays a city, ships, or an army or navy”), or “as a politician, does not propose what is best for the Athenian people, taking money” (rJhvtwr w]n mh; levgh/ ta; a[rista tw'/ dhvmw/ tw'/ ∆Aqhnaivwn, crhvmata lambavnwn). For the Thirty’s use of informers to bring eisangeliai cf. Lys. 12.48 (above, p. 171). 59 Xenophon also reports the Thirty’s use of intimidation tactics against the Council: in attendance at the Council meeting at which Theramenes was condemned were a number of armed young men (Hell. 2.3.23), whose presence prevented the councillors from obstructing Theramenes’ arrest and execution (Hell. 2.3.55). At the subsequent trial of the Eleusinians, as at the trial of the generals and taxiarchs, the tyrants compelled the jury (in this case the Three Thousand) to cast their votes in the open (fanera;n fevrein th;n yh'fon: Hell. 2.4.9; see Manatt [1886] 112; Marchant-Underhill [1906] 2.69).

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jury rhetorically, “as a result [of the tyrants’ aforementioned actions], how was any of [the defendants] going to be acquitted?,” and then answers his own question by noting that, apart from Agoratus, all of the men on trial were condemned to death (§§ 37–38). Lysias intends this depiction of Thirty’s lack of faith in their own minions on the Council, as evidenced by their presence in court and their manipulation of the voting process, to resonate with Agoratus’ jury on several levels. First, it conspicuously exemplifies the lack of cohesion in the oligarchic faction, as opposed to the solidarity that Lysias consistently attributes to their democratic adversaries (above, p. 211). The tyrants’ conduct also argues in favor of the innocence of the condemned. The speaker has already asserted that, had they been tried in a dikastêrion in accordance with the people’s decree, they would have been acquitted (§ 36). The evident corollary of the Thirty’s need to confront the councillors with an implied threat of individual liability in order to assure themselves of a conviction is that, absent such duress, even the tyrants’ own supporters might have exculpated the defendants. This argument, moreover, serves to deflect the blame for the conviction and execution of the defendants from the members of the Council, who acted under compulsion, onto the Thirty and their willful instrument Agoratus. Comparison of the prosecution’s characterization of the Thirty’s behavior toward the Council and toward Agoratus results in a counterintuitive scenario wherein the tyrants applied greater compulsion to their established allies on the Council, whose posture of philia was already determined, than to the outsider Agoratus. For the prosecution, presumably, this constitutes evidence of Agoratus’ voluntary collusion, while at the same time contributing to the portrayal of the Thirty as weak and incompetent antagonists. In his defense, however, Agoratus would have done well to attack the questionable conclusion suggested by his prosecutors’ account of the denunciation and trial of the generals and taxiarchs; namely, that the Thirty placed greater confidence in an untried informer than in their own Council. In disparaging the Thirty’s motives for and conduct of enmity in the Against Agoratus, Lysias revisits several of the themes explored in the Against Eratosthenes. While the prosecution fails to demonstrate the specific application of these stock allegations to the charged homicide of Dionysodorus or to the deaths of Agoratus’ other victims, they are useful in that they contribute to the general negative portrayal of the tyrants, thereby reinforcing the jurors’ presumed antipathies; and they are relevant to the case against Agoratus, since Agoratus willingly aligned himself with the Thirty. The characterization of the tyrants as sycophants, motivated by greed to target wealthy individuals so as to seize their assets either for the coffers of the regime or for their own pockets, which figures prominently in the Against Eratosthenes due to the conspicuous wealth of Lysias and Polemarchus (above, pp. 167–71), recurs only briefly and inferentially in the Against Agoratus. In cataloguing the losses inflicted upon the city (ta;~ gegenhmevna~ sumfora;~ th/' povlei, § 43) by the Thirty and Agoratus, the speaker mentions the executions of the residents of Salamis and Eleusis (§ 44; cf. Lys. 12.52; Diod. 14.32.4); while he does not explain the tyrants’ motives, the jurors will have recalled that, at least in the case of the Eleusinians, the Thirty

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had acted in order to appropriate their victims’ property.60 In Athens, too, some of the men executed by the tyrants left behind unbetrothed sisters (§§ 43–45). The jurors did not need to be reminded that these girls could not be married because the Thirty confiscated their victims’ estates, thereby preventing the payment of the dowries of their marriageable female dependents (cf. Lys. 12.21: above, p. 170). Finally, the speaker personalizes the issue of the tyrants’ financial motives for the members of his jury by maintaining that the jurors themselves were dispossessed of their personal estates (ta;~ ijdiva~ 〈oujsiva~〉 ajpwlevsate) during the oligarchy (§ 47). The jurors arguably require no further evidence of the sycophancy of the Thirty, since their own misfortunes attest to it. As for Agoratus, given his established sycophantic proclivities (above, p. 223), the prosecution may expect the jurors to read similar motives into its allegation that Agoratus “expected to get something significant” from the oligarchs in return for his testimony (§ 53: above, p. 214); but the speaker offers no evidence of financial gain by Agoratus and never directly accuses Agoratus of sycophancy in connection with his denunciations of the generals and taxiarchs. In the Against Agoratus, then, the allegation of sycophancy made so explicitly in the prosecution of Eratosthenes recedes into the background. Lysias could easily have emphasized the sycophancy of the Thirty in this case as well: the generals were certainly wealthy men, as was the taxiarch Dionysodorus, whose kinsmen could afford to hire Lysias as their logographer even after the depredations of the Thirty. But he chose to highlight what Agoratus’ victims and the presumptive jurors had in common rather than what separated them. The Athenians who made up the disproportionately poor jury pool might not take pity on affluent families deprived of some of their wealth by the tyrants, and so it was to the prosecution’s advantage not to remind the jurors of their financial standing by alleging that the Thirty targeted Dionysodorus and the rest for their money. All the better, then, to privilege the political over the financial motive with regard to these killings, and to present the victims as champions of democracy who used their positions of power and influence to benefit the Athenian people and so gave their lives on behalf of the jurors. The metic status of Lysias and Polemarchus had largely precluded the use of such an argument in the Against Eratosthenes: while the Thirty might plausibly have considered the brothers a significant threat on the basis of their citizen connections and evident democratic leanings, an Athenian jury would still see them as political outsiders and would have difficulty in viewing Polemarchus as a martyr for the democracy. Therefore, in his and his brother’s case, Lysias stressed the motive of sycophancy. In an effort to deter any possible envy on the part of Eratosthenes’ jurors, however, he asserted that his family had used its wealth to the benefit of the Athenian democracy in the performance of choregic liturgies, payment of eisphorai, and ransoming of Athenian prisoners-of-war (12.20: above, p. 167). In the Against Agoratus, by contrast, Lysias can avoid alluding to the affluence of the generals and taxiarchs altogether. Unlike Lysias and Polemar60 Xen. Hell. 2.4.8: oiJ triavkonta...ejboulhvqhsan ∆Eleusi'na ejxidiwvsasqai, w{ste ei\nai sfivsi katafughvn, eij dehvseie. Below (2.4.10) Xenophon states that the condemnation of the Eleusinians pleased “those among the citizens who were concerned with profit alone” (tw'n politw'n oi|~ to; pleonektei'n movnon e[melen). On this passage see Krentz (1995) 142–43.

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chus, and like Agoratus’ jurors, the generals and taxiarchs were members of the Athenian citizen body; and while their wealth can be inferred from the offices they held, those same offices qualify them as benefactors of the dêmos and invite the argument that the oligarchs targeted them for their democratic sympathies. Since the Thirty’s attack on the generals and taxiarchs is fully explicable on political grounds, there is no need for Lysias to posit redundant causation by openly accusing the tyrants of sycophancy, which would require him to introduce the topic of their victims’ wealth and thereby to risk inspiring feelings of resentment among the jurors.61 Another issue that figures prominently in the Against Eratosthenes but is relegated to the background in the Against Agoratus is the alleged impiety of the Thirty. While in prosecuting Eratosthenes Lysias had emphatically asserted the tyrants’ subversion of Athenian religious norms and practices, providing numerous examples to support his claims, the Against Agoratus contains only a single brief comment that might be construed as an allusion to the tyrants’ disregard for the sacred. Some of the men executed by the Thirty, the speaker maintains, left behind elderly parents who had expected to be supported by their children in their old age and to be buried by them when they died (§ 45). By sentencing their sons to death, the Thirty prevented these elderly Athenians from receiving their last rites at the hands of the people who should have performed them. Thus, while the Against Eratosthenes details the tyrants’ obstruction of the funerals of their victims, including Polemarchus, the Against Agoratus refers only to indirect interference; presumably the Thirty did not hinder Dionysodorus’ proper burial as they had Polemarchus.’ Moreover, the issue of funerary conduct was not as germane to the prosecution of Agoratus as it was to the case against Eratosthenes, since Agoratus evidently had played no role in the fate of the generals and taxiarchs after he procured their executions by denouncing them. While the impiety of the Thirty receives little explicit attention from Agoratus’ prosecutors, it is implicitly highlighted by means of a tacit contrast with the piety demonstrated by the prosecutors themselves, which will be shared by the jurors, provided that they punish Agoratus as he deserves. In introducing his case to the jury (§§ 3–4: above, p. 201), the speaker expresses the conviction that his prosecution and its hoped-for condemnation of Agoratus are pious (o{sion) as well as legally just, and that the gods will reward with prosperity those who punish Agoratus; he believes that his presentation of the facts of the case will impel the jurors “more piously” (oJsiwvteron) to convict Agoratus. In his concluding remarks, the speaker recapitulates this argument from piety, warning the jurors that an acquittal of Agoratus would be impious (ou[te o{sion) as well as unlawful (§ 93) and urging them to cast a just and pious vote (divkaia kai; o{sia yhfivsasqai) for conviction (§ 97). While, as argued above, the prosecution and conviction of Agoratus represent positive displays of piety as acts of revenge fulfilling the mandate issued by Agoratus’ victims in their dying injunctions, the prosecution’s appeal to piety also encourages the jurors to distance themselves from the despicable religious conduct of the Thirty. 61 See Arist. Rhet. 1386b16–24.

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Lysias presents the conviction of Agoratus as a result of the jurors’ decision to vote in opposition to the tyrants: if they cast their ballots against the Thirty (eja;n...ta; ejnantiva toi'~ triavkonta yhfivzhsqe) by condemning Agoratus, they will avoid expressing concord with their enemies, they will avenge their friends, and all men will consider their vote just and pious. Since the verdict is cast as a simple binary choice between supporting and opposing the late oligarchy, and pious opposition to the Thirty demands a conviction, it follows that support of the tyrants, and a fortiori the tyrants themselves, are conversely defined by their impiety. Therefore, should the jurors acquit Agoratus, they will incur the stain of impiety not only by a sin of omission – their failure to obey the dying declarations of their philoi – but also by a sin of commission: the decision to issue a verdict consonant with the interests of the notoriously sacrilegious Thirty. One final aspect of the Thirty’s adversarial misconduct alleged in the Against Agoratus concerns the tyrants’ application of private enmities to the public sphere. In the Against Eratosthenes, Lysias had asserted that Eratosthenes’ seizure of Polemarchus stemmed neither from a private dispute between the two men nor from any public wrong committed by Polemarchus and witnessed by Eratosthenes (ou[te aujto;~ ijdiva/ ajdikouvmeno~ ou[te eij~ th;n povlin oJrw'n ejxamartavnonta, 12.23: above, p. 170). He thus presented personal enmity as plausible grounds for the tyrants’ pursuit of their victims without making any judgment on the propriety of acting from such motives. In the Against Agoratus, however, Lysias portrays this aspect of the Thirty’s conduct in a distinctly negative light. After invoking the memories of the hundreds of Athenian citizen residents of Salamis and Eleusis executed by the Thirty, the speaker continues: mevmnhsqe de; kai; tou;~ ejnqavde dia; ta;~ ijdiva~ e[cqra~ ajpagomevnou~ eij~ to; desmwthvrion: oi} oujde;n kako;n th;n povlin poihvsante~ hjnagkavzonto aijscivstw/ kai; ajkleestavtw/ ojlevqrw/ ajpovllusqai. You also remember the men here [in Athens] who were arrested and taken to prison on account of private enmities (idias echthras); although they had done the city no wrong, they were forced to perish by the most shameful and dishonorable death. (§§ 44–45)

To be sure, the pursuit of private vendettas in the political arena of Athens neither originated with the Thirty nor ceased with their downfall, and was employed by democrats and oligarchs alike.62 What distinguished the Thirty’s use of this tactic was the combination of the scale on which it was employed and the tyrants’ control of the mechanism of law, which deprived their victims of a fair hearing (above, p. 226).63 Under the democracy, a man who took an enemy to court either to redress a personal wrong or to allege an offense against the state had to prove his case to a body of his citizen peers. Prospective jurors in the dikastêria promised on oath to hear both sides of a case impartially, and while it would be overly optimistic to assume that every juror left his prejudices behind when he entered court, the heliastic oath was no empty formula: the evidence of the orators shows that the Athenians 62 Contra Zakas (1907) 1.241, who considers such behavior “indicative of tyranny.” 63 Zakas (1907) 1.241 draws an apt comparison with the proscriptions of the late Roman Republic: see, e. g., App. Bell. Civ. 1.95.2–5.

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took their oaths seriously.64 The democratic legal system thus afforded prosecutors and defendants alike a theoretically neutral process by which to decide their disputes. By contrast, the Thirty’s referral of lawsuits to their kangaroo court, the Council of 500, resulted in guaranteed convictions. It was bad enough that the tyrants were playing with a stacked deck; but, as Lysias observes, they capitalized on their position by going for high stakes: by prosecuting their enemies for alleged offenses against the state, they could have them automatically sentenced to death. Again, it is not the death sentence itself that offended Athenian sensibilities: being responsible for the death of an enemy might be openly acknowledged as a goal, or at least as a fantasy, by Athenian echthroi.65 There was, however, a countervailing sense of fair play. It was possible to go too far in pursuit of enmity: protestations along these lines by defendants in the surviving forensic corpus reveal a general societal feeling that the charge ought to fit the offense, and show that bringing a grave public accusation on the basis of enmity alone, without producing evidence of specific wrongdoing, was frowned upon.66 Under the democracy, moreover, in order for an Athenian legally to bring about his enemy’s death by means of the courts, a third party (whether a homicide court, a dikastêrion, or a legislative body) external to the dispute and possessing independent and supervening authority conferred by the state had to pass sentence. Not only did the collusion between the Thirty and the boulê eliminate any semblance of impartiality in judgment by blurring the distinction between prosecution and jury, but to make matters worse, the Thirty, with their enemies at their mercy, gave no quarter and regularly imposed sentences of death rather than fines or exile. With such a failsafe method at their disposal, the tyrants displayed no restraint with regard to either severity or frequency in using accusations of public offenses to settle private grievances: as observed above (p. 182), in order to achieve the canonical figure of 1,500 executions, the Thirty would have had to average over six per day. Later in the regime, the passage of the law subjecting those outside the catalogue of the Three Thousand to the capital jurisdiction of the Thirty alone allowed the tyrants in such cases to abandon even the legal fiction of trials before the Council and thus to avoid any nominal risk that the councillors would resist their will. With a show trial before the boulê rendered unnecessary by the new law, the tyrants could dispatch their enemies with even greater efficiency; and the fate of Theramenes 64 For the text of the heliastic oath in the fourth century see Dem. 24.149–51 (iusiurandum) with Harrison (1968–71) 2.48; Hyp. 1 fr. 1. The name “oath of the heliasts” (to;n tw'n hJliastw'n o{rkon, Dem. 24.148) indicates that some form of the oath significantly predated Demosthenes (and the Thirty Tyrants), even if it did not go back to Solon, as Demosthenes asserts: if the oath were a fourth-century innovation, we would expect it to be called the “oath of the dicasts.” Solon used the word hJliaiva (or hjliaiva) for the Athenian Assembly sitting as a court of law (Rhodes [1993] 160; contra Hansen [1982]), and it occurs in a law cited by Lysias for its archaism (Lys. 10.16 [lex]). 65 Dover (1994) 182–83, citing Dem. 18.133, 54.1. 66 E. g., Hyp. 1, 4; Dem. 21.83–101 (regarding Meidias’ attack on the arbitrator Straton). At times, as in Demosthenes 54, even a prosecutor who had a potential capital charge available to him might decide to bring a lesser charge; the moderation so demonstrated was clearly expected to impress the jury.

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shows that the law offered little shelter to the Three Thousand themselves, since the Thirty could strike their enemies’ names from the catalogue on a whim.67 It should be noted that, once again, the trial of the generals and taxiarchs does not conform to this pattern: the prosecution offers no evidence of personal animosity between any of the oligarchs and any of the generals or taxiarchs, choosing instead, for the reasons discussed above, to portray the conflict between the two groups in exclusively political terms. While in some cases, as with the generals and taxiarchs, charges of conspiracy against the oligarchy might be substantiated, Lysias’ almost casual tone in reminding Agoratus’ jury of the arrests and executions of personal enemies carried out by the tyrants suggests that the phenomenon was common and that a considerable proportion of the men condemned by the oligarchy perished because of preexisting enmities with members of the ruling junta. Since this allegation had no bearing on the deaths of Agoratus’ victims, we must presume that, as with the intimations of impiety directed at the tyrants, Lysias had the speaker mention the Thirty’s practice of eliminating private enemies by means of specious accusations of treason in hopes of maximizing the jurors’ antipathy toward the tyrants and, by extension, toward their instrument Agoratus. *** In the fourth century, the Athenians of the restored democracy, regardless of their personal politics, remembered Solon as an exemplary paragon of citizen virtue and the Thirty as prototypical villains;68 and posterity, ancient and modern, has largely upheld their respective verdicts.69 The consensus evinced by the fourth-century 67 Cf. Isoc. 21.2: “When the Thirty came to power and his enemies were trying to erase him from among those having a share in the state (aujto;n oiJ ejcqroi; ejk me;n tw'n metecovntwn th'~ politeiva~ ejxhvleifon) and put him on the catalogue kept by Lysander, Nicias here, fearing what was happening at the time, mortgaged his house, sent his slaves out of the country, brought his furniture to me, gave Euthynus three talents of silver to safeguard, and went to live in the country.” Shortly thereafter, Nicias decided to leave Attica (§ 3). “Those having a share in the state” are presumably the Three Thousand (cf. Mirhady in Mirhady-Too [2000] 129 n. 2). Lysander’s list is not elsewhere attested, although it has been conjectured that the people on it were either proscribed (Mirhady, ibid.) or “deprived of civic rights and enrolled for military service under... Lysander” (van Hook [1945] 352). 68 Praise of Solon in the orators: e. g., Lys. 30.28; Isoc. 7.16; 15.231, 235, 313; Hyp. 3.21–22; Aeschin. 1.6, 183 (cf. §§ 25–26); 3.108, 257; Dem. 18.6–7; 19.251–56; 20.93, 104; 22.30–31; 24.106, 211; 36.27; [Dem.] 26.4, 23; 42.1; 43.66–67; 48.56–57; 61.49–50. In the philosophers: e. g., Pl. Rep. 599e1–3; Arist. Pol. 1273b35–1274a21; 1296a18–20; cf. [Arist.] Ath. Pol. 9.1, 41.2. Censure of the Thirty in the orators (besides Lysias passim): e. g., Andoc. 1.90; 3.10; Isoc. 7.62, 66, 73; 8.108, 123; 16.43, 50; 18.17–18; Hyp. 2.8; Aeschin. 2.176; 3.235 (above, p. 179); Dem. 20.11–12; 22.52; 24.57–58, 163–64; Lyc. 1.61, 124. In the philosophers (despite Socrates’ connection to Critias): e. g., Pl. Ep. 7.324b8–325a5; Arist. Rhet. 1400a15–18, 32–36; [Arist.] Ath. Pol. 35.4–36.1. 69 For views on Solon expressed by post-Classical Greek authors see, e. g., Plut. Solon; Diod. 9.1, 26.1.1. The high regard in which the Romans held Solon is shown by the (erroneous) assertions of Cicero (de Leg. 2.58–62) and Livy (3.31.8) that Solon’s laws formed the model for the Romans’ own venerable Twelve Tables; for Solon’s supposed continuing influence on Roman law

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sources, from the staunch democrats Lysias, Demosthenes, and Hypereides to the crypto-oligarch Isocrates to the openly anti-democratic Plato and Aristotle, indicates that it was not merely their respective places on the political spectrum that earned Solon his fame and the Thirty their opprobrium. What Athenians of all political allegiances would have found laudable in Solon and repellent in the Thirty was their behavior toward their fellow citizens in times of broadly similar factional strife. Appointed as eponymous archon with special powers to revise the laws at a point in Athenian history when serious vertical stasis threatened to tear the state apart, Solon saw his mission as one of reconciliation. Although he subscribed to the Athenian doctrine of helping friends and harming enemies as much as any of his successors, as evidenced by his prayer to the Muses that he be “sweet to [his] friends and bitter to [his] enemies” (fr. 13.1–6 West), Solon spurned the opportunity to press his advantage and parlay his extraordinary position into a personal tyranny,70 instead endeavoring to reunite the factions of nobles and commoners and boasting of his equitable treatment of both.71 His goal in legislating was to put an end to the stasis then wracking Athens, which had arisen as a result of economic oppression (doulosuvnhn, h} stavsin e[mfulon povlemovn q∆ eu{dont∆ ejpegeivrei) and could be stopped by good government (Eujnomivh...pauvei d∆ e[rga dicostasivh~: fr. 4.18–19, 32, 37 West). Several episodes of anarchy in the 580’s notwithstanding, Solon’s reform package was a remarkable and lasting success, and he achieved the concordia ordinum that had eluded his predecessor Draco; hence later Athenians, using the language of private enmity, remembered him as a “reconciler” (diallakthvn, [Arist.] Ath. Pol. 5.2). Nearly two centuries later, as the Peloponnesian War was drawing to a close, the Athenian polis again found itself divided vertically, this time between oligarchs (whom the Ath. Pol., significantly, calls oiJ gnwvrimoi [34.3], recalling the language of the schism at the time of Draco and Solon [5.1]) and democrats; and the people entrusted the Thirty, as their ancestors had entrusted Solon, with powers to revise the constitution. The result could not have been more different. The Thirty, while largely ignoring their constitutional mandate, did annul or compromise some of Solon’s legislation, including his testamentary law and other provisions that they felt gave too much power to the dikastêria and the dêmos ([Arist.] Ath. Pol. 35.2). Whereas Solon had worked to bring the Athenians together, the Thirty acted so as to drive their fellow citizens further apart. Solon’s economic and constitutional reforms had broadened the political power base in Athens; the Thirty, by contrast, cf. D. 10.1.13 (Gaius de XII tab. 4); 47.22.4 (Gaius de XII tab. 4); 48.5.24 (23).pr (Ulpian de adulteriis 1). See also Pers. 3.79; Juv. 10.274–75; Tac. Ann. 3.26. For assessments of the Thirty by Greek and Roman authors after the fourth century B.C. see, e. g., Diod. 14.4; Justin, Epit. 5.8–9; Nepos, Thrasybulus 1.2, 5. So enduring was the negative tradition surrounding the Thirty that Chaucer presented them as an archetype of evil in the Franklin’s Tale (Canterbury Tales V.1368–78, quoted by Krentz [1982] 15). Modern criticism tends to follow the ancients in roundly condemning the Thirty, although Krentz (1982) offers a somewhat more sympathetic view (see, e. g., p. 130). 70 Solon frr. 32, 33, 34 West; [Arist.] Ath. Pol. 12.3; Plut. Solon 14, Publ. 25.5 (Comp. Sol. et Publ. 2.5). 71 See especially Solon fr. 5 West ([Arist.] Ath. Pol. 12.1), quoted above, p. 44.

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jealously guarded their privileges, maintained their stranglehold on power by appointing carefully-selected friends to high office, and only reluctantly enfranchised their own supporters, the Three Thousand. The tyrants, moreover, used their position to wage a reign of terror against their own people. Solon boasted that he had repatriated countrymen who had been gone so long that they no longer spoke the Attic dialect (fr. 36.8–12 West = [Arist.] Ath. Pol. 12.4); the Thirty forced five thousand of their fellow citizens into exile and executed 1,500 more who were not so fortunate. Eventually the Thirty brought about what Solon dreaded most, plunging Athens into open civil war. In the aftermath of the civil war, Athenians who had fled abroad to escape the tyranny now returned to their homes in security. The victorious democrats displayed notable magnanimity toward their vanquished foes, however much their hands may have been forced by fear of the Spartans, who had imposed the oligarchy upon them and might still act to protect their partisans in Athens. The restored democracy did not attempt to enforce the lex talionis upon the Three Thousand, nor even upon the Thirty. No mass executions or disfranchisements, common in the wake of stasis in the Classical Greek world and practiced in the immediate past by the tyrants themselves, followed the conclusion of hostilities in 403.72 On the contrary, the democracy passed an amnesty aimed at preventing reprisals even on the individual level; a number of defeated oligarchs were allowed to maintain political autonomy at Eleusis until 401/0; and in spite of remaining prejudices against former members of the Three Thousand (as evidenced particularly in the dokimasia speeches of Lysias), those who rejoined the Athenian body politic were fully incorporated into the state, with some attaining high office, including generalships and seats on the Council of 500, after 403 (see, e. g., Lys. 16.8). The achievement of détente and the outward display of concord between former men of the Peiraeus and men of the city, however they might be compromised by individual violations of the Amnesty of 403 in the succeeding generation, were a source of great pride to the Athenian people. Although they did not renounce vengeance altogether, as shown in the prosecutions of Eratosthenes, Agoratus, and other former oligarchic partisans, the democrats did exercise restraint in the wake of their victory: Andocides’ comment that “although it was in your power to exact vengeance, you decided to let the past be” (Andoc. 1.81: above, p. 146) was overly optimistic but more true than false. In the aftermath of the civil war, fourth-century Athenians contrasted the divisive nature of oligarchy, as exemplified by the reign of the Thirty, with the concord that characterized the restoration of democracy; and as a result, concord became a defining aspect of democratic government in Athenian thought. As they congratulated themselves on their inclusivity and generosity, the Athenians found a parallel and a precedent in the actions of Solon. Like Solon, they had restored fellow citizens to their homes; like Solon, they had brought an end to stasis and reestablished peace and harmony among the citizen body. As commenta72 Those oligarchic partisans who relocated to Eleusis in accordance with the Amnesty of 403 surrendered their Athenian civic rights voluntarily ([Arist.] Ath. Pol. 39; cf. Carawan [2006] 62–65).

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tors have noted, in the course of the fourth century Athenian authors increasingly assign the credit for founding their democracy not to Cleisthenes73 but to Solon.74 This phenomenon, with all its attendant historical inaccuracy, can be explained as a direct result of developments in Athens in the years following 403: since reconciliation and concord came to be defining markers of the Athenian democracy, it followed that Solon, the exemplar of these virtues, must have been the first Athenian democrat.

73 See, e. g., Cleitophon’s rider to the Pythodorus decree (411/10), as reported by [Arist.] Ath. Pol. 29.3 (above, p. 138 n. 12). 74 Rhodes (1993) 159 with references; among the citations of Athenian authors given above (n. 68) see especially Isoc. 7.16; Hyp. 3.21; Aeschin. 3.257; Dem. 18.6; 22.30–31; [Arist.] Ath. Pol. 9.1, 41.2.

CONCLUSION In 621/0, and again in the late fifth century, acute vertical stasis impelled the Athenians to codify their laws, and in both instances the law of homicide received special attention. When appointed as lawgiver in the archonship of Aristaechmus, Draco confronted a nascent city-state wracked by economic and social turmoil between the nobility and the masses, and a society that practiced retaliatory killing, memories of which survived into the fourth century in the practices observed by Athenians in the wake of a homicide. Draco’s lawcode attempted to address both of these issues; while his efforts at ameliorating the plight of the common people failed, thereby necessitating the appointment of Solon to revise the laws of Athens in 594/3, his homicide law succeeded, whether immediately or gradually, in eliminating the custom of avenging a killing in blood. Draco rid Athens of this practice not by combating the Athenian ethic of revenge but by transferring the locus for avenging a killing from the streets and fields of Attica to the courts. By mandating that acts of homicide be redressed by the lawsuit rather than by the spear, and thereby prohibiting revenge killing, Draco asserted the right of the Athenian state to arbitrate disputes resulting from homicides, at the expense of the customary (and arbitrary) jurisdiction of the aggrieved family. The key to Draco’s success, however, lay in his respect for the principle of vengeance and his recognition of the necessity of solidarity among the kinsmen of a homicide victim. His homicide law codified and standardized traditional practice in requiring that the victim’s family issue a public proclamation to the killer that announced the establishment of enmity between the parties; but now in so doing the victim’s kin announced not that they would attempt strict talio by means of a revenge killing but that they would seek retribution by litigation. Draco’s requirement of unanimity in the proclamation, prosecution, and pardon of a homicide further imposed upon the family of the victim the necessity to act as a unit. While thus respecting the rights of the victim’s kin, and to that extent maintaining their customary role in the aftermath of the killing of one of their members, at the same time Draco’s homicide law restricted participation in all mandatory stages of the dikê phonou to kinsmen within a specified degree of relation to the victim. From the beginning of the legal process to its end, these measures not only enforced the solidarity of the victim’s family but also signaled their willingness to obey the terms of the law in their efforts to achieve (and, in the case of pardon, to renounce) vengeance upon the killer. Just as important as Draco’s limitations on participation by the victim’s family, if not more so, were his restrictions on legal liability for homicide. The recent trial and conviction of the Alcmaeonids had exemplified the principle of vicarious liability, as the entire Alcmaeonid genos was held legally responsible for the acts of individual members in the slaughter of Cylon’s partisans. By limiting liability for a homicide to the person who killed with his own hand or conspired to kill, Draco

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Conclusion

absolved the killer’s kindred (except for any members who had actively abetted the killer) and rendered them legally immune from retaliation, thus rejecting vicarious liability and establishing a standard of individual liability that would characterize Athenian law down through the Classical period. The short-term success of Draco’s homicide law is attested by Solon’s decision in 594/3 to retain Draco’s provisions on homicide even as he repealed and replaced the rest of his predecessor’s legislation; its long-term success is evident not only in its continued validity through the Classical period but in the reverence shown by fifth- and fourth-century Athenians toward their first lawgiver, even at the expense of historical accuracy. By the fifth century, a fundamental change had altered the Athenian conception of homicide: to the secular concerns evident in Draco’s law were added religious aspects including the requirements of piety incumbent upon the philoi of a homicide victim and the doctrine of pollution that necessitated the avoidance of miasma communicable by unpunished killers. These developments in Athenian homicide doctrine were soon accompanied by a crucial development in Athenian homicide law, as the precedent established in the case of Euxitheus (Antiphon 5, On the Killing of Herodes) expanded the applicability of endeixis and apagôgê to suspected killers, and these procedures thus became legal alternatives to the dikê phonou for the prosecution of homicide. Vertical stasis returned to Athens in the waning years of the fifth century, in the form of the oligarchic revolutions of 411 and 404. As in the seventh century, so in the fifth civil strife served as the catalyst for legal codification, and again the Athenians devoted particular scrutiny to the law of homicide. In the aftermath of the oligarchy of 411, the restored democracy chose to preserve the homicide law unaltered; but the more drastic upheaval of 404/3, which resulted from Athens’ defeat in the Peloponnesian War, comprised the reign of the Thirty Tyrants with its mass executions and general disregard of established Athenian homicide law and custom, and required a catastrophic civil war to sweep the oligarchs from power, necessitated a different approach. In 403, the restored democracy realized that, owing to the scale of killings perpetrated under the oligarchy, the resulting legal disputes would have to be limited both in character and in number in order for the state to function internally and to preserve its autonomy by avoiding further external interference by Sparta. Accordingly, the Amnesty of 403 included the most drastic (albeit temporary) alteration of Athenian homicide law to date. With respect to killings that occurred under the Thirty, the element of conspiracy in the Draconian standard of liability was generally suspended: apart from the leaders of the late oligarchy, only those Athenians who had killed with their own hands could be prosecuted for homicide. Initially the Athenians complied with the Amnesty’s restriction on homicide lawsuits, although, as we see in Lysias’ prosecution of Eratosthenes, the desire for revenge remained. As time passed and the threat of Spartan intervention diminished, this drive to avenge began to test, and in some instances to outweigh, the constraints of the Amnesty and the necessity of maintaining the reconciliation between the victors in the stasis of 404/3 and their former adversaries. As evidenced in Lysias’ descriptions of the reign of the Thirty, the civil war, and the ensuing years in orations 12 (Against

Conclusion

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Eratosthenes) and 13 (Against Agoratus), his contemporaries viewed vertical stasis, even when it degenerated into full-scale civil war, as private enmity writ large; and eventually, in some cases, the desire for vengeance trumped reconciliation. Only some five years after the enactment of the Amnesty of 403, the Eleven permitted the kinsmen of Dionysodorus to proceed against Agoratus by apagôgê, and Lysias wrote a speech for the prosecution that endeavored openly to vitiate the Amnesty. Nonetheless, in spite of individual violations, the Amnesty of 403 was more of a success than a failure, as the restored democracy largely reincorporated its former oligarchic opponents: while in some discrete cases the Athenian adversarial ethic overcame the spirit of reconciliation, in general reconciliation prevailed. With the exception of the Amnesty’s limitations on the prosecution of killings committed under the Thirty, the restored democracy again reinstated Draco’s homicide law; apagôgê for homicide also remained legal, although the state removed jurisdiction in this area from the Council of 500, which had served as the principal homicide court during the oligarchy. Fourth-century Athenians thus possessed a variety of options for the prosecution of a homicide. Relatives of the victim within the degree of descendant first cousin once removed usually elected to prosecute by the dikê phonou instituted by Draco, despite the availability of apagôgê. Those who were unrelated to the victim and therefore barred from bringing a dikê phonou were empowered by law to prosecute by apagôgê and might also proceed against a killer indirectly by means such as the graphê asebeias (Demosthenes 22 and 24). However, despite the legal potential for redress by non-kin, contemporary Athenian sources (Plato, Euthyphro; Isaeus 9; Demosthenes 22 and 24; and especially [Demosthenes] 47) demonstrate that, in practice, the Athenians continued to subscribe to the canonical Draconian principle that vengeance for a killing, however obtained, remained the proper prerogative of the victim’s kin.

APPENDIX ANDROLÊPSIA Demosthenes 23, Against Aristocrates, contains our only contemporary references to a procedure called androlêpsia (“man-seizure”). One of the laws that Aristocrates’ decree allegedly violates reads as follows: ∆Eavn ti~ biaivw/ qanavtw/ ajpoqavnh/, uJpe;r touvtou toi'~ proshvkousin ei\nai ta;~ ajndrolhyiva~, e{w~ a]n h] divka~ tou' fovnou uJpovscwsin h] tou;~ ajpokteivnanta~ ejkdw'sin. th;n de; ajndrolhyivan ei\nai mevcri triw'n, plevon de; mhv. If a person dies a violent death, on his behalf the androlêpsiai shall be permitted to his relatives, until they either undergo trials for homicide or surrender the killers. The androlêpsia shall be of up to three people but no more. (Dem. 23.82 [lex])

Demosthenes then offers commentary on the law and contrasts it with the terms of Aristocrates’ decree: ‘ejavn ti~ biaivw/ qanavtw/ ajpoqavnh/’ fhsivn. prw'ton me;n dh; tou'to prosgravya~ to; ‘biaivw~,’ suvmbolon pepoivhken w|/ gignwvskomen o{ti, a]n ajdivkw~, levgei. ‘uJpe;r touvtou’ fhsi; ‘toi'~ proshvkousin ei\nai ta;~ ajndrolhyiva~, e{w~ a]n h] divka~ tou' fovnou uJpovscwsin h] tou;~ ajpokteivnanta~ ejkdw'sin.’ skopei'sqe wJ~ kalw'~. provteron me;n uJposcei'n divka~ ajxioi', meta; tau'ta dev, a]n tou'to mh; bouvlwntai, prosevtaxen ejkdou'nai: eja;n de; mhdevteron touvtwn ejqevlwsi, ‘to; ajndrolhvyiovn’ fhsin ‘ei\nai mevcri triw'n, plevon de; mhv.’ para; toivnun o{lon tou'ton to;n novmon ei[rhtai to; yhvfisma. prw'ton me;n gavr, ‘ejavn ti~ ajpokteivnh/’ gravfwn, ouj prosevgrayen ajdivkw~ oujde; biaivw~ oujd∆ o{lw~ oujdevn. ei\ta pro; tou' divkhn ajxiw'sai labei'n, eujqu;~ e[grayen ajgwvgimon ei\nai. pro;~ de; touvtoi~ oJ me;n novmo~, eja;n mhvte divka~ uJpovscwsi par∆ oi|~ a]n to; pavqo~ gevnhtai, mhvte tou;~ dedrakovta~ ejkdw'si, keleuvei kata; touvtwn ei\nai mevcri triw'n to; ajndrolhvyion: oJ de; touvtou~ me;n ajqwv/ou~ parh'ke, kai; oujde; lovgon pepoivhtai peri; aujtw'n oujdevna, tou;~ de; to;n h[dh pefeugovta (qhvsw ga;r ou{tw) kata; to;n koino;n aJpavntwn ajnqrwvpwn novmon, o}~ kei'tai to;n feuvgonta devcesqai, uJpodexamevnou~ ejkspovndou~ ei\nai gravfei, eja;n mh; to;n iJkevthn e[kdoton didw'sin. oujkou'n kai; tw'/ mh; prosqei'nai pw'~, eja;n ajpokteivnh/, kai; tw'/ mhdemivan krivsin eijpei'n, kai; tw'/ mh; divka~ aijtei'n, kai; tw'/ pantacovqen didovnai labei'n, kai; tw'/ tou;~ uJpodexamevnou~, ajlla; mh; par∆ oi|~ a]n to; pavqo~ gevnhtai kolavzein, kai; pa'sin ouJtwsi; fanerw'~ kai; para; tou'ton ei[rhke to;n novmon. “If a person dies a violent death,” it says. First, by adding the word “violently,” the lawgiver has given an indication by which we recognize that it means “if [a person dies] unjustly.” “On his behalf,” it says, “the androlêpsiai shall be permitted to his relatives, until they either undergo trials for homicide or surrender the killers.” Look how well it is written. First it demands that they undergo trials, and then, if they are unwilling, it has ordered them to surrender [the killers]. And if they are willing to do neither of these things, the law says that “the androlêpsion1 shall

1

The fact that Demosthenes uses ajndrolhvyion where the law uses ajndrolhyiva (Dilts [2005] correctly rejects the emendation of th;n de; ajndrolhyivan in the text of law to to; de; ajndrolhvyion) suggests that these words were synonymous in the fourth century (at least in the singular); they were understood as synonymous by the lexicographers (see below), with the exception of the author of the Suda, who seems to believe that the terms are distinct but fails to explain the

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Appendix: Androlêpsia be of up to three people but no more.” The decree [of Aristocrates] has been proposed in violation of this entire law. First, in writing “if a person kills,” he did not add “unjustly” or “violently” or anything at all. Then he wrote that the offender shall be immediately liable to seizure, before any demand for redress has been made. Furthermore, the law ordains that if the people among whom the death occurs neither undergo trials nor surrender the perpetrators, the androlêpsion against them shall be of up to three people. But Aristocrates lets these all go free and has taken no notice of them at all; instead he writes that those who receive a man already in flight (so I shall posit), according to the law of all mankind that states that one shall receive a fugitive, shall be expelled from alliance unless they surrender the suppliant. So by not adding the manner of killing, if a person kills, and by not mentioning a trial, and by not demanding redress, and by granting seizure from anywhere, and by punishing those who receive the fugitive rather than the people among whom the death occurs, and in all respects, he has thus made his proposal in obvious violation of this law as well. (Dem. 23.83–85)

Demosthenes again mentions androlêpsia at §218, but there appears to contradict an element of his description above: while in §84 those who are subject to androlêpsia unless they either surrender the homicide suspect(s) or undergo trial are “the people among whom the death occurs” (par∆ oi|~ a]n to; pavqo~ gevnhtai), at §218 Demosthenes identifies those liable to seizure as “the people among whom the perpetrator is” (par∆ oi|~ a]n oJ dravsa~ h\/).2 Demosthenes may be correct in one place and not the other; note that among the lexicographers cited below, the authors of the Lexeis Rhêtorikai and the Suda follow §84, while Harpocration and Pollux follow §218. Since no other contemporary source mentions androlêpsia, it is possible that the procedure was very rarely used;3 if so, this might account for Demosthenes’ confusion. But it is more likely that the contradiction is only apparent and not real. Since the law does not specify the targets of androlêpsia beyond the requirement that they shall be no more than three, we may reasonably conclude that §84 and §218 describe two different and valid methods of applying the law: the relatives of the victim may seize up to three men either from the city where the homicide occurred or, if the killer has absconded, from the city in which he is currently located. A number of lexicographers (most importantly Harpocration, Pollux, and the authors of Lexeis Rhêtorikai in the Lexica Segueriana and of the Suda)4 also comment upon androlêpsia: ∆Androlhyiva: to; ajrpavzein a[ndra~ e[k tino~ povlew~: hjnecuvrazon ga;r th;n e[cousan povlin to;n ajndrofovnon kai; mh; proi>emevnhn aujto;n eij~ timwrivan. Dhmosqevnh~ kat∆ ∆Aristokravtou~. levgei de; kai; oujdetevrw~ to; ajndrolhvyion ejn touvtw/.

2 3 4

difference. I therefore find it unnecessary to infer a lexical distinction between “an act or instance of seizure” (androlêpsia singular, MacDowell [1963] 27; Bravo [1982] 142) and “the right of seizure” (androlêpsion, MacDowell; androlêpsiai plural, Bravo). MacDowell (1963) 28–29. Cf. Bravo (1982) 152. Lex. Seg. (Synagôgê Lexeôn Chrêsimôn) s. v. ajndrolhyiva (pp. 393–94 Bekker = Cunningham [2003] no. 1224) is a nearly verbatim copy of Harpocration; the definition of ajndrolhyiva in the Etymologicon Magnum (s. v. ajndriav~, Gaisford [1848] cols. 284–85) is a combination of elements from Pollux (8.41, which incorrectly names ajndrolhvyion as a type of lawsuit) and the Suda.

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Androlêpsia: the seizure of men from a city; they exacted sureties from the city that held the killer and did not surrender him for punishment. Demosthenes, Against Aristocrates; he also speaks in the neuter of androlêpsion in this oration. (Harpo. s. v. ajndrolhyiva) ∆Androlhvyion dev: o{tan ti~ tou;~ ajndrofovnou~ katafugovnta~ w{~ tina~ ajpaitw'n mh; lambavnh/, e[xestin ejk tw'n oujk ejkdidovntwn a[cri triw'n ajpagagei'n. oJ de; ajdivkw~ ajndrolhyiva/ kecrhmevno~ oujk ajneuvquno~ h\n. Androlêpsion: when a person demands [the surrender of] killers who have fled to some people and does not receive them, he may arrest up to three persons from those who do not surrender [the killers]. A person who employed androlêpsia wrongfully was not unaccountable. (Pollux 8.50–51) ∆Androlhvyion kai; ajndrolhyiva: ajndrolhvyiovn ejsti to; fovnou pracqevnto~ e[n tini povlei, kai; tou' fonevw~ mh; ejkdidomevnou uJpo; tw'n politw'n, trei'~ ajnt j aujtou' tw'n ejkeivnou politw'n a[gein eij~ dikasthvrion, divkhn uJfevxonta~ tou' fovnou. kai; tou'to ajndrolhvyion kalei'tai. Androlêpsion and androlêpsia: androlêpsion is, when a homicide has been committed in some city and the killer is not surrendered by the citizens, to bring to court three of his fellow citizens in his place to undergo trial for the homicide. This is called androlêpsion. (Lex. Seg. [Lex. Rhet.] pp. 213–14 Bekker) ∆Androlhyiva kai; ajndrolhvyion: eja;n e[xw th'~ ∆Attikh'~ ajnh;r ∆Aqhnai'o~ ejteleuvthse, kai; mh; ejxedivdosan oiJ ejn ejkeivnh/ th'/ povlei ejn h|/ to; e[rgon ejpravcqh to;n dokou'nta ejn th'/ aijtiva/ ei\nai, ejfei'to ejk tou' novmou trei'~ tw'n ejkeivnw/ uJpovntwn a[gein eij~ ∆Aqhvna~ divkhn uJfevxonta~ tou' fovnou: kai; tou'to ajndrolhvyion ejkalei'to. Dhmosqevnh~ ejn tw'/ kata; ∆Aristokravtou~: pro;~ de; touvtoi~ oJ novmo~, eja;n mhvte divka~ uJpovscwsi, par∆ oi|~ a]n to; pavqo~ gevnhtai, mhvte tou;~ dedrakovta~ ejkdidw'si, keleuvei kata; touvtwn ei\nai mevcri triw'n to; ajndrolhvyion. ∆Androlhyiva ou\n to; ajrpavzein a[ndra~ e[k tino~ povlew~: hjnecuvrazon ga;r th;n e[cousan povlin to;n ajndrofovnon kai; mh; proi>emevnhn aujto;n eij~ timwrivan. kai; tou'to ejkalei'to ajndrolhyiva. Androlêpsia and androlêpsion: if an Athenian man died outside Attica and the people in the city in which the act was committed did not surrender the person deemed to be responsible, it was allowed by law to take three members of his family [lit., “three people under/subject to him”] to Athens to undergo trial for the homicide; this was called androlêpsion. Demosthenes, Against Aristocrates; also, the law commands that if the people among whom the death occurs neither undergo trials nor surrender the perpetrators, the androlêpsion against them shall be of up to three persons. Androlêpsia, then, is the seizure of men from a city; they exacted sureties from the city that held the killer and did not surrender him for punishment. This was called androlêpsia. (Suda s. v. ajndrolhyiva kai; ajndrolhvyion)

It is clear that Demosthenes 23 was the lexicographers’ sole source of information on androlêpsia: it is the only source they cite, and their entries contain no information that could not be fairly easily inferred or conjectured from it.5 There are currently two main schools of thought on the date, meaning, and function of the androlêpsia law. Ruschenbusch believed that the law was Draconian and that Demosthenes misunderstood its original purpose. He correctly noted that the text of the law preserved in Demosthenes contains no proviso referring to killings outside Athenian territory, and on that basis he argued that the law originally addressed killings within Attica and permitted the relatives of a homicide victim to seize relatives of the killer in order to compel them either to pay the victim’s wergild 5

Bravo (1982) 132.

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or to surrender the killer. The law’s limitation of seizures to three hostages would then have represented “the lawgiver’s effort to restrict the feud and ensure the peace of the country.” Over time, as the rule of law advanced and the threat of blood feuding between Athenian families disappeared, the law came to be reinterpreted (as by Demosthenes) as addressing cases where an Athenian was killed in a foreign polis.6 One element in this reconstruction can be confidently eliminated. As several commentators have noted, the clause e{w~ a]n...divka~ tou' fovnou uJpovscwsin cannot mean “until they pay wergild (or ‘compensation’)7 for the homicide,” as Ruschenbusch argues; it must mean “until they undergo trial(s) for homicide.”8 But Ruschenbusch’s hypothesis does have its attractive features. Athenians before Draco did practice retaliatory killings and did conceive of liability for homicide as being incurred not only by the killer but also vicariously by his kin; Draco was indeed concerned with restricting liability for homicide and keeping the peace within Attica (see chapter 1). The rule of law in Draco’s Athens was presumably not strong enough to compel all accused killers to submit voluntarily to a dikê phonou, and apagôgê and related procedures, which permitted the seizure of an alleged offender either by private citizens or by agents of the state acting on their behalf, would not be employed against suspected killers until the late fifth century (see chapter 4). If Ruschenbusch’s interpretation (as modified above) is correct, the androlêpsia law, whether authored by Draco or by a subsequent lawgiver, represents a conditional exception to the Draconian standard of individual liability for homicide: if a killer did not submit to trial of his own accord, the victim’s family might seize three of the killer’s relatives, and if the killer’s kin did not then surrender him, they could be tried as a group in his stead.9 (What the result would be if the killer’s kin as a group were convicted is, of course, a matter of conjecture; presumably the extreme sanction would have been the exile of the entire family, as in the Alcmaeonid case [see chapter 1].) While Ruschenbusch’s theory has drawn its share of adherents,10 the majority view both before and after Ruschenbusch – disagreements on important aspects of androlêpsia notwithstanding – holds that the androlêpsia law was drafted for the purpose described by Demosthenes and the lexicographers; namely, to compel foreign poleis to extradite those individuals suspected of killing Athenians within their borders.11 Both the language and the content of the law support this interpretation.

6 7 8 9

Ruschenbusch (1960) 140–42; the quoted material appears on p. 142. Miles (1950) 222; on the absence of wergild in Draco’s law see above, p. 52. MacDowell (1963) 28–30; Bravo (1982) 143 with references. The authors of the Lexeis Rhêtorikai and the Suda state that the three hostages undergo trial, but in the law the understood subject of uJpovscwsin and ejkdw'sin must be the same (as Demosthenes interprets it in §§83–84; cf. Bravo [1982] 133); since the hostages cannot ejkdou'nai anyone, the subject must be either the corporate kin of the victim or the offending city (see below). 10 See the references in Bravo (1982) 133 n. 10; Grace (1973) 9 n. 1, 13; cf. Carawan (1998) 44. 11 E. g., Lipsius (1905–15) 267; Miles (1950); Bravo (1982) with references; Todd (1993) 331; and see n. 13 below.

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While the succinctness and lack of technicality in the language of the law, and Demosthenes’ use of ajndrolhvyion for the law’s ajndrolhyiva, may suggest a date prior to the fourth century,12 the phrase biaivw/ qanavtw/ argues for a Classical date.13 This phrase does not appear in any unquestionably Draconian clause; it is neither present nor restored in IG I3 104. It does appear, however, in Athenian honorific decrees of the second half of the fifth century14 and of the fourth century.15 It may be noted further that Draco’s homicide law consistently describes the act of killing from the point of view of the killer (IG I3 104.11 ktevnei tiv~ tina, 16–17 ktevnei de; a[kon, 23–24 ai[tio~ e\i fovno, 27 ktevnei e] ai[tio~ e\i fovno, 28–29 to;n Aqenai'on ktevnanta, 34–35 ktevnei, 37–38 eja;n fevronta e] a[gonta bivai ajdivko~ eujqu;~ ajmunovmeno~ ktevnei), not from the point of view of the victim, as in the androlêpsia law (ejavn ti~ biaivw/ qanavtw/ ajpoqavnh/). Draco is also very specific in describing exactly which kinsmen of the victim may prosecute (IG I3 104.20–23) and pardon (vv. 13–19) the killer (see chapter 1), whereas the androlêpsia law grants seizure simply “to the relatives” (toi'~ proshvkousin) tout court.16 The creation of a law whose purpose is to compel the extradition of foreigners who kill Athenians is consistent with other elements of Athenian judicial and jurisdictional policy documented during the period of the Athenian Empire (478/7– 404).17 As disaffection among the allies increased, Athens took a number of measures to protect its citizens and partisans in allied cities.18 The Athenians programmatically compromised the jurisdiction of allied poleis from at least the 450’s on. The Phaselis decree (IG I3 10 = Meiggs-Lewis [1988] no. 31 = Fornara [1983] no. 68), issued between 469 and 450, mandates that any lawsuit between an Athenian and a Phaselite must be tried at Athens (vv. 6–11); a similar rule already applied to Chios (vv. 10–11). A rider to the Chalcis decree of 446/5 (IG I3 40 = Meiggs-Lewis [1988] no. 52 = Fornara [1983] no. 103) orders that all lawsuits heard at Chalcis that carry penalties of exile, death, or disfranchisement shall be subject to appeal at Athens “in accordance with the decree of the [Athenian] dêmos” (vv. 71–76); in light of Antiphon’s statement (5.47) that no city may sentence a person to death without the consent of the Athenians, it is likely that this “decree of the dêmos” stated the limitations on jurisdiction imposed specifically on Chalcis by the rider as a general rule governing all allied poleis.19 12 Bravo (1982) 139. 13 Contra Glotz (1904) 219 and Treston (1923) 164, who concur that the law concerns extradition from foreign poleis but propose that it originates with, or even before, Draco. 14 E. g., IG I3 161.5 (435–405); 162.10 (440–415); 164.24–25 (440–425). Cf. Gagarin (1981) 143. 15 Bravo (1982) 140 cites IG II2 38.2–6 (early fourth century); IG II2 226.34–40 = Rhodes-Osborne (2003) no. 70.36–42 (343/2). 16 Cf. Glotz (1904) 306 n. 1. For additional arguments in favor of a post-Draconian date see Bravo (1982) 136ff. 17 Cf. Gagarin (1981) 143; contra Bravo (1982) 142 (“the nomos in question does not institute a new right but regulates a right recognized by custom”). 18 See especially the indispensable discussion by Meiggs (1972) 205–33. 19 See contra, however, Meiggs (1972) 224–26, noting inter alia the temporal gap between IG I3 40 (446/5) and Antiphon 5 (427–412: above, p. 123); possibly the terms of the rider to the Chal-

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Thanks to these and other measures, such as the imposition of democracies, cleruchies, garrisons, and supervisory officials (not to mention tribute, compulsory since the foundation of the Delian League in 478/7), the popularity of Athens and its sympathizers plummeted in many allied cities. Reprisals against Athenian citizens abroad were sharply discouraged by a fine of 5 talents levied by the city of Athens upon any allied polis in which an Athenian was killed (Ar. Pax 169–72);20 the same life insurance policy was commonly extended to individual foreigners deemed especially valuable to Athens, including those who were designated proxenoi and/or “benefactors” (euergetai) of the Athenians, by ad hominem decrees (e. g., IG I3 19, 156, 161, 162, 164). In this context, an imperial date for the establishment of the androlêpsia procedure makes eminent sense. The rise in the number of Athenians in allied cities, as cleruchs, garrison troops, supervisory officials, merchants, or simply visitors, and the concomitant decline in Athens’ reputation among the allies will often have placed Athenians abroad in situations of potential danger.21 Just such a background has been plausibly conjectured for the alleged killing of the Athenian Herodes by the Mytilenean Euxitheus (Antiphon 5).22 The plurals “killers” (tou;~ ajpokteivnanta~) and “trials” (divka~) in the androlêpsia law may be significant: they may betray the lawgiver’s awareness that disaffected citizens of an allied polis might band together to kill an Athenian, either in conspiracy or on the spur of the moment. Such violence had to be deterred, and one way the Athenians chose to do this was by the prospect of harsh and broad punishments for homicide. If an Athenian was killed abroad, the city where he met his end incurred a hefty five-talent fine. But this punished the city that allowed an Athenian to die violently within its borders, not the killer, and the money went to the Athenian treasury; how was the family of the slain man to pursue its retributive interests?23 The answer was androlêpsia. Relatives of the victim were empowered to seize citizens of either the polis where he

20

21

22 23

cis decree were generalized in the interim. Note also that the Old Oligarch, writing probably in the 420’s, states that Athenian courts sentence oligarchically-minded (and hence anti-Athenian) citizens of allied poleis to disfranchisement, confiscation, exile, and death ([Xen.] Ath. Pol. 1.14); on the issue of confiscation see Meiggs (1972) 226–27. See also de Ste Croix (1961) 271–72. This rule supports by analogy Demosthenes’ identification of those liable to androlêpsia as “the people among whom the death occurs” (23.84), but it does not imply that the identification at 23.218 (“the people among whom the perpetrator is”) is wrong: see above, pp. 241–42, and below. The presence of a similar danger posed by disaffected allies in the fourth-century Second Athenian Confederacy is attested by the killings of an Athenian proxenos and Athenian sympathizers at Iulis (IG II2 111.27–41 = Rhodes-Osborne [2003] no. 39.27–41 [363/2]; Meiggs [1972] 218). In the fourth century, as in the fifth, we find decrees ordering that the killing of a privileged foreigner be treated in the same way as the killing of an Athenian (e. g., IG II2 38; IG II2 226.34–40 = Rhodes-Osborne [2003] no. 70.36–42; cf. n. 15 above). E. g., Todd (1993) 330–31; Gagarin (1997) 173–74. On the distinction between punishment of the city and punishment of the killer see de Ste Croix (1961) 275.

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died or (if different) the polis where the killer was currently in residence;24 the fact that only the victim’s relatives were allowed to conduct these seizures is yet another indicator of the centrality and continuity of the Athenian doctrine that vengeance for homicide was the prerogative of the victim’s kin. Thus not only was the polis where the killing took place held directly liable to the Athenian state, but unless the killer was surrendered to face trial at Athens and assume individual liability for his actions, the polis where the victim’s relatives enforced androlêpsia25 had to stand trial in the killer’s place and thus assumed vicarious liability, and unless and until that polis consented to face judgment, its involuntary sureties seized by androlêpsia were effectively held liable in default.26 These conditions raise a number of pragmatic questions (for example, how does one try, let alone punish, a city for homicide? what happened to the individuals seized by androlêpsia if the killer was not surrendered and the relevant city refused to stand trial?) that cannot be definitively answered.27 We might conjecture that if a city ever went on trial and was convicted, the penalty would not automatically have been expulsion from alliance with Athens, either from the Delian League in the fifth century or from the Second Athenian Confederacy in the fourth. As the Athenians knew, many of their allies would view this as a reward rather than a punishment; furthermore, Demosthenes mentions expulsion from alliance (tou;~ de; to;n h[dh pefeugovta...uJpodexamevnou~ ejkspovndou~ ei\nai, §85) only as an element in the Aristocrates decree, which he is attacking, and not in reference to the androlêpsia law. Presumably, too, if androlêpsia failed either to produce the extradition of the killer or to induce the offending polis to stand trial, the seized persons could be detained indefinitely; but the logistics of this are entirely unknown.

24 Neither the text of the androlêpsia law nor Demosthenes’ exegesis contains the proviso, incorrectly inferred by the author of the Suda, that the hostages must be relatives of the killer. 25 Not the hostages (above, n. 9). 26 Miles (1950) 224 and Bravo (1982) 141, 151 propose that the men seized by androlêpsia served not as hostages but as objects of punishment: they were enslaved by the victim’s kin, and this constituted “vengeance-compensation” for the homicide (Bravo, ibid. 141). But there is no evidence for the status of the seized men during their detention, and the androlêpsia law makes it clear that they are hostages, since it defines their eligibility for automatic release: they may be held only until (e{w~) either the killer is extradited or their city stands trial. 27 Cf. MacDowell (1963) 30.

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GENERAL INDEX adoption: 64, 89, 91, 94, 97, 99, 103 Aegospotami: 164 Aeschines: 80, 172, 179–81 Aesimus: 210 Aesion(?): 127 Agamemnon: 66 agôn timêtos: 156, 164 n. 36 Agoratus: 31, 66–68, 77, 127, 129 n. 60, 139, 140, 185–232, 234, 239 aitios: 199–200, 222, 245 akôn: see intent, degrees of akritos apokteinein/apothnêiskein: 139 n. 15, 160, 174, 179 alastôr: 62 Alcaeus: 47 Alcibiades: 19–20 Alcmaeonids: 37–42, 53, 57, 237, 244 alitêrios: 62, 209, 211 Amnesty of 403: 14, 31, 49, 141–52, 153, 154, 156, 161–62, 166, 170 n. 57, 183–84, 185, 187, 192–200, 202, 207, 210, 212, 214, 234, 238, 239 anagrapheis: 13, 48, 137, 146 n. 34 anchisteia: 93 Andocides: 144–48 androlêpsia: 53, 125–26, 241–47 androphonos: 125, 189 n. 9, 191 n. 15, 198, 209, 210–11, 222 Androtion: 105–9, 120 Antigone: 177–78 Antipater of Ceos: 127 Antiphon (orator): 29, 42, 124, 135–36, 159, 165 n. 40, 171, 175–76, 183 n. 102, 211 Antiphon (trierarch): 171 Anytus: 68, 150 n. 43, 209 apagôgê: 13, 22, 23, 30, 61, 65, 72, 74, 76, 79, 110–11, 120–31, 136, 139, 140, 142, 145– 46, 148–49, 151, 152, 154, 155, 164 n. 36, 174, 185–92, 194, 198, 199, 201, 208, 217, 223, 238, 239, 244 apeniautein: 84 Aphobus: 64–65, 119 n. 27 Apollodorus (logographer): 69, 111 Apollodorus of Megara: 126, 128, 129 n. 60, 195–96 apostoleis (Fleet Commissioners): 112 apotympanismos: 63, 78, 127, 191 n. 15

Araphenian neighbors (Isae. 9): 104, 120 arbitration: 113–14, 147 Archeptolemus: 42, 159, 165 n. 40, 176, 183 n. 102, 211 Archestratus: 138 Archinus: 148–49, 154 n. 4, 196 Archippus: 18, 24, 76, 83 archons: 36, 122 n. 36, 173 Areopagus: 37, 60, 138, 147, 173; see also homicide courts Arginusae: 164, 165 Aristarchus: 22, 127, 129 n. 60 Aristocrates: 152, 241–42, 247 Ariston: 18, 21, 22, 23, 24, 26, 164 n. 36, 166 n. 43 Aristophanes of Cholleidae: 217, 218, 222 n. 54, 224 n. 56 Aristotle: 233 Arthmius of Zeleia: 125 n. 51 Asclepius: 68 Assembly: 14, 80, 108, 126, 128, 140 n. 17, 146, 154, 159, 173, 187, 195, 219, 221, 222, 224, 226, 231 n. 64 Astyphilus: 89–104 ataphos: 179 Athenian Empire: 123 n. 41, 125, 245, 246, 247 Athenogenes: 82 atimia: 42, 165 n. 40, 176, 225 n. 57, 245 autocheir: see liability: “own–hand” killer axones: 46 n. 45 basileis (in Draco’s law): 49–50, 53 basileus (archon): 30, 59, 60, 62, 72, 74, 75, 86, 116, 117, 121, 124, 129, 144 n. 26, 198 battery: see dikê aikeias benefactor: see euergetês boulê: see Council of 500 bouleusis: see liability: conspiracy to kill bribery: 186 n. 5 burial: see taphê Callaeschrus: 175 Cephalus: 153, 154 n. 3, 163, 167 Chaeredemus: 111 Chalcis decree: 245 chamber-pots: 19 Chariades: 97, 99

260

General Index

Charicles: 175 n. 72 chorêgos (Ant. 6): 73–74, 75–76, 80, 82 Ciron: 95–96, 100–2 Cleisthenes: 13, 15, 138 n. 12, 140 n. 17, 173, 235 Cleitophon: 138 n. 12, 235 n. 73 Cleon: 89–104 Cleophon: 203, 225 cloak-snatching (lôpodysia): 124, 186 n. 5, 189 n. 9 Clytemnestra: 66 codification of Athenian law: 137–38, 151, 238; see also anagrapheis, syngrapheis compensation: 30, 51–53, 79 n. 60, 80–82, 84, 244, 247 n. 26 Compilers: see syngrapheis Conon: 18, 21, 23, 24, 26, 164 n. 36, 166 n. 43 conspiracy to kill: see liability Corinthian War: 182 Council of 500: 13, 22, 31, 80, 112, 113, 127, 138, 139, 140, 141, 143, 145, 146, 147, 148–49, 154 n. 4, 168, 171, 173, 176, 186, 187, 192, 195, 204, 208, 215, 216, 218, 222, 225, 226, 227, 231, 234, 239 Creon: 178, 182 Critias: 141, 149–50, 167 n. 45, 171 n. 62, 175 n. 72, 176–77, 180 n. 92 Crito: 68 Ctesias: 19 curse: 41 Cylon: 35–57, 237 Damnippus: 169 decrees and laws, relationship of: 147 definition of homicide: see liability Delian League: see Athenian Empire Demochares: 111 democracy: 13, 32, 67, 77, 136, 137, 138, 145, 146, 147, 148, 149, 151, 152, 158, 167, 171, 172, 173, 183, 202–7, 208–13, 223, 224, 225, 228, 230–31, 232–35, 238, 239, 246 Demomeles: 80 Demophantus: 13 Demophon: 64 dêmos: 44–45, 57, 180 n. 92, 195, 203, 229, 233, 245; see also democracy Demosthenes (father of the orator): 64–65 Demosthenes (orator): 15, 21–25, 26, 64–65, 80, 111 n. 3, 127, 233 deodands: 60 n. 9 diaphoros, diapherein: 91, 96 Dicaeogenes: 102

dikastêrion: 61, 113, 121, 127, 138, 139, 144 n. 28, 172–73, 189 n. 9, 191 n. 15, 202, 203 n. 36, 221, 226, 227, 230, 231, 233 dikê aikeias: 18, 22, 25, 111, 113–14, 164 n. 36 dikê blabês: 82 dikê exoulês: 21 dikê kakêgorias: 21, 22, 25 dikê phonou: 13, 30, 59–61, 72, 74, 76, 83, 85, 91, 92, 110, 119, 120, 121, 122, 123, 125, 126, 127, 128, 129, 130, 140, 142, 144 n. 26, 146, 154, 155, 156, 198, 199, 201, 237, 238, 239, 244 dikê pseudomartyriôn: 67 n. 25, 71, 111 Diocles: 100–2 Diodorus: 105–9 Diodotus: 73, 76, 80, 82 diômosia: 42, 55, 61, 62, 116, 117, 119–20, 125 Dionysius: 127, 185, 190, 193, 199 n. 31, 202, 205, 206 Dionysodorus: 31, 66–68, 77, 94, 127, 160 n. 27, 185–86, 192, 193, 198, 199, 200, 201, 202, 204, 205, 206, 208, 212, 221, 223, 224, 227, 228, 229, 239 disfranchisement: see atimia dokimasia: 22, 92, 203 n. 35, 234 dokimasia tôn rhêtorôn: 129 n. 59 dowries: 170, 228 Draco: 13–15, 16, 29–31, 35–57, 58, 60, 66, 69, 71, 78–79, 82, 83, 84, 85, 92, 107, 110, 115, 118–19, 121, 122, 124, 126, 135–36, 137–38, 140, 142, 144, 146, 147, 151–52, 156 n. 14, 188, 198, 200, 215 n. 50, 233, 237–38, 239, 243, 244, 245 “Draconian constitution”: 39, 47 n. 49 Dracontides decree: 158, 159 dying injunction: 29, 50, 64–68, 77–78, 90–92, 94, 160 n. 27, 205–7, 211, 212, 220, 221– 22, 229 echthra, echthros, defined: 15–29 eirgesthai tôn nomimôn: 73, 75, 124, 129 Eisagôgeis: 114 n. 12 eisangelia: 113, 139, 171, 226 eisphora: 167, 228 ekphora: 70, 73, 92, 97, 101, 102, 103, 178, 179, 180–82 Eleusis: 141, 142, 145, 174, 183 n. 100, 226 n. 59, 227, 228 n. 60, 230, 234 Eleven, the: 61, 128, 138, 143, 144, 146, 185, 186, 187, 190, 191 n. 15, 193, 194, 198, 199, 239 embateusis: 96–97, 103 embezzlement: 186 n. 5

General Index endeixis: 30, 110, 120, 122–27, 136, 142, 143 n. 25, 145–46, 151, 154, 185 n. 2, 191 n. 15, 238 enktêsis gês kai oikias: 154, 195–96 enmity, private: see echthra ep’ autophôrôi: 61, 146, 186–92, 193, 198–200 ephêgêsis: 30, 110, 120, 122 n. 36, 126, 191 n. 15 ephetai: 50, 53, 60, 78, 121, 173 Ephialtes: 138 epidikasia: 103 epiklêros: 68, 102 n. 53 epimelêtai tôn neôriôn: 112 Epimenides of Crete: 39, 43 episkêpsis: 67 n. 25 episkêptein: see dying injunction Eratosthenes (Lys. 1): 16, 71, 188 Eratosthenes (Lys. 12): 31, 42, 77, 139, 149, 153–84, 185, 200, 201, 202, 207, 213, 214 n. 48, 223, 229, 230, 234, 238 êthopoiia: 166 Eucleides: 147, 154 n. 4 Euctemon: 21, 26, 105, 108 euergetês: 195–96, 208, 211, 214, 222, 246 Euergus: 71, 110–120 Euphiletus: 16, 17, 21, 71, 188 Euthycrates: 85, 90–92, 107, 110, 112, 215 n. 50 euthynai: 76, 143, 144, 154–56, 161, 166, 184, 185, 202, 223 Euthyphro: 85–88, 95, 107, 110 Euxitheus: 71, 123–26, 127–28, 135–36, 187 n. 7, 190, 198, 238, 246 Exêgêtai (Interpreters): 69, 71, 86, 102, 115– 22, 131 exômosia: 104 extradition: see androlêpsia feud: 15 n. 2, 25 n. 38, 26 n. 39, 35, 36, 41 n. 24, 50 n. 67, 68 n. 28, 83, 244 Five Thousand, oligarchy of: 13, 137–38, 151 flexibility and variation: 21–24 Forty, the: 114 Four Hundred, oligarchy of: 13, 30, 48, 126, 136, 137–38, 145 n. 33, 151, 158, 165 n. 40, 175, 195, 238 freedwoman ([Dem.] 47): 110–120, 130 funerals: 70–71, 92–93, 96–104; aggressive: 69–71, 102, 180; proclamation at: see proclamations; spear at: 51, 69, 71, 72, 116, 180; Thirty Tyrants and: 177–83, 229; see also ekphora, prothesis, taphê Furies: 62

261

generals and taxiarchs (Lys. 13): 139, 140, 185, 203, 204, 205, 206, 208, 211, 215, 218, 219, 220, 221, 223, 224, 225, 226, 227, 228, 229, 232 graphê asebeias: 105–9, 120, 149, 239 graphê hetairêseôs: 129 n. 59 graphê hybreôs, hubris: 22, 118 n. 24, 164 n. 36, 171, 179, 183 graphê lipotaxiou: 19, 225 n. 57 graphê paranomôn: 105, 108, 109, 154 n. 4 graphê sykophantias: 223 n. 55 graphê traumatos ek pronoias: 17, 22, 23, 25, 42, 61, 80, 120 n. 29, 142 n. 23 Gyges: 120 Hagnon: 97, 99 Hagnotheus: 97, 99 Hammurabi: 46 n. 43 Harpocration: 29, 69 hekôn: see intent, degrees of hektêmoroi: 39, 44 heliastic oath: 230–31 hemlock: 63, 78, 143, 153, 176–77 Herodes: 123–26, 130, 135, 246 Hesiod: 46, 47, 52 Hierocles: 89–90, 104 Hippias of Thasos: 139, 216 Homer: 50, 52 homicide courts: 30, 59–61, 128, 135, 144 n. 26, 231; Areopagus: 59–60, 81, 121, 128, 140, 144 n. 26, 152, 215 n. 50; Delphinion: 60, 128, 215 n. 50; Palladion: 60, 116, 118, 128, 144 n. 26, 155; Phreatto: 60, 128; Prytaneion: 60, 128 homôrophios: 63, 75–76, 107, 209 hubris: see graphê hybreôs Hypereides: 233 hypophonia: 81–82, 84 Iceland: 15 n. 2, 24 n. 30, 27 n. 44, 41 n. 24, 56 n. 95, 59 n. 4, 63 n. 15, 64 n. 19, 65 n. 21, 67 n. 26, 68 n. 28, 69 n. 31, 79 n. 61, 94 n. 33, 97 n. 39, 102 n. 54, 130 n. 62, 177 n. 81 informers: see liability: denunciation inheritance: 92–94, 96–104, 118 n. 24, 139 intent, degrees of: 50, 51 n. 74, 54, 59–60, 63, 73, 84, 156 n. 14; 213–23 Intermediate Regime: see Five Thousand, oligarchy of Interpreters: see Exêgêtai Isaeus: 29 Isocrates: 233 isotelês, isoteleia: 153–54, 197 n. 25

262

General Index

Istrus: 69 Iulis: 246 n. 21 jurisdiction: 51–53, 123 n. 41, 125, 140, 146, 152; see also homicide courts, apagôgê jury-court: see dikastêrion kakourgos: 123–25, 128, 129, 136, 198, 208 Leocrates: 101 Leon of Salamis: 139, 171 Leostratus: 101 liability: 41, 142–44, 151–52, 153, 192, 200, 214, 237, 238, 244, 247; conspiracy to kill: 14, 41, 49, 50, 53, 57, 59, 73, 142–43, 151– 52, 186 n. 5, 198, 200, 237, 238; denunciation: 49, 143, 187, 188, 191 n. 15, 192, 193, 198 n. 28, 199, 201, 211; individual: 53, 57, 238, 244, 247; “own-hand” killer: 14, 41, 49, 50, 53, 57, 59, 142–43, 146, 153, 188, 192, 198, 199, 200, 237, 238; vicarious, 41– 42, 53, 238, 244, 247 liturgies: 167, 228 Long Walls: 147, 203, 225 Lysander: 158, 159, 164 n. 37, 232 n. 67 Lysias: 31, 42, 77, 139, 153–235, 238 Megacles: 36–38 Megara: 153, 170 n. 57, 178 Meidias: 21–24, 26, 80, 127, 129 n. 60, 231 n. 66 Melobius: 169 n. 54, 172 men of the city: 49, 141, 161–62, 171, 174, 192, 193, 194, 202, 210, 234 men of the Peiraeus: 49, 141, 158, 161–62, 167, 172, 175, 192, 193, 194, 207, 210, 234 Menecles: 100 Menestratus: 126–27, 129 n. 60, 139, 191 n. 15, 198 n. 28, 222 n. 54 metics: 118, 140, 153–54, 155, 156 n. 14, 157, 163, 167, 168 n. 52, 170, 171 n. 61, 195– 96, 211, 213, 216, 217, 228 miasma: 62, 75, 107, 182 n. 98, 209, 238 Miltiades of Ceos: 127 Mnesibulus: 71, 110–120 mnêsikakein: 142, 144–45, 146, 150, 161, 193– 94 Mnesitheides: 169 n. 54 Model Penal Code: 215 n. 50 Munychia: 141, 149, 158, 171, 172, 175, 197 n. 25, 215, 217, 218, 219 Myronides: 89, 94, 96, 102, 103 Mytilene: 123, 125

Neaera: 119 n. 27 Niceratus: 171 Nicias: 217, 218 Nicodemus: 22, 26, 127 Nicomachus: 48 Nicomenes: 217, 218 Nicostratus: 97, 99 nomothetai: 146, 147 oath-helpers: 55 Old Oligarch: 245 n. 19 “open texture”: 22, 164 Orestes: 66 ostracism: 217 outlawry: 79, 125 n. 51, 176; see also atimia overt act: 21, 161, 167, 168, 211 “own-hand” killer: see liability paragraphê: 149 pardon: 30, 41, 50, 54–55, 57, 63, 65, 80, 83– 84, 85, 93, 221, 237, 245 Patrocleides decree: 145 n. 33 Peiraeus: 141, 146, 147, 153, 154 n. 3, 159, 197 n. 25, 207, 210, 213, 217; see also men of the Peiraeus Peisander: 175 Peisistratus, Peisistratids: 15, 28, 39 n. 18, 41, 42 n. 27 Peison: 153, 169, 177, 178 Peloponnesian League: 147, 148 Peloponnesian War: 13, 41, 138, 147, 148, 159, 185, 202, 203, 204, 225 n. 57, 233, 238 penalties for homicide: 51, 59–60, 63–64, 78–79 Periander: 111 Pericles: 37, 153, 154 n. 3, 167 perjury: 27, 186 n. 5; see also dikê pseudomartyriôn Persian Wars: 148 Phano: 119 n. 27 Phaselis decree: 245 Pheidon: 158, 175 philia, philos, defined: 26–29 phratry: 50, 54, 57, 118–19 Phrynichus: 126, 128, 175, 195–97 Phyle: 141, 196–97, 207, 208, 213 phylobasileis: 60, 121 piety: see religion, homicide and Pittacus: 46 Plato: 30, 233 poinê: 51–52 polemarch: 154 Polemarchus: 31, 77, 139, 153–84, 200, 202, 205, 213, 217, 223, 227, 228, 229, 230

General Index polemios: 15, 91, 160 n. 24 pollution: see miasma Pollux: 29, 69 Polyneices: 178, 182–83 precedent: 57, 124, 165 n. 40, 185 n. 1, 191, 238 preliminary hearings (prodikasiai): 30, 59, 74– 76, 144 n. 26 private homes, inviolability of: 171–72 probolê: 21, 22, 223 n. 55 proclamations: 29, 50, 51, 59, 69, 71, 72–74, 85, 116, 118–19, 180, 237 prosecution (capacity and procedure): 41, 50, 55–56, 57, 59, 85, 93, 117–19, 121, 130, 237, 245; see also dikê phonou, apagôgê prostatês: 154 prostropaios: 62 prothesis: 70, 73, 92, 97, 100, 101, 102, 103, 178 prothesmia (statute of limitations): 106 n. 64, 130 n. 61, 185 n. 1 purification: 63 Pytheas: 18, 26, 83 “reasonable man” standard: 220 reciprocity and escalation: 24–25, 110, 174 reconciliation (diallagê, diallagai): 17–18, 30, 75, 80–83, 141–52, 175, 197 n. 25, 233, 235, 239 Recorders: see anagrapheis religion, homicide and: 30, 62–63, 85–109, 115, 206–7, 238; Thirty Tyrants and: 176– 77, 218, 229–30 reluctance: 163 restraint: 22, 163–64 retaliatory killing: 29, 50, 53, 56, 57, 62, 66, 69, 71, 78, 237, 244 Revolution of 404: see Thirty Tyrants Revolution of 411: see Four Hundred, oligarchy of; Five Thousand, oligarchy of Rome: 47–48, 98 n. 41, 150, 230 n. 63, 232 n. 69 rule of law: 24 rustling: 114 Salamis: 139 n. 15, 174, 227, 230 Satyrides: 127 Second Athenian Confederacy: 246 n. 21, 247 seduction: 16, 124, 186 n. 5, 188, 189 n. 9, 223 seisachtheia: 39, 44 self-help: 23, 29, 114 n. 15, 188 sequestration: 74–75 Simon: 171

263

slaves: 118, 119, 123, 194, 216 n. 51 Social War: 111 Socrates: 63, 68, 86–88, 95, 139, 149–50, 167 n. 45 solidarity, among democrats: 211, 227, 234; among kin: 30, 54, 56, 57, 58, 71, 87–88, 95, 96–104, 201–2, 237 Solon: 14–15, 29, 31, 36, 38–39, 43–45, 48, 57, 70–71, 79 n. 60, 92–94, 97, 101, 135, 138 n. 12, 139, 140, 143, 146, 147, 151, 211, 217, 231 n. 64, 232–35, 237, 238 Sparta: 31, 138, 140, 141, 147–49, 150, 159, 171, 185, 203, 208, 221, 225, 226, 234, 238 stasis: 31, 178, 192, 207, 211, 234, 238; horizontal: 35, 36–43; vertical: 35, 43–49, 136, 233, 237, 239 Stephanus: 166 n. 43 Struggle of the Orders: 45 n. 39, 47–48 summary arrest: see apagôgê sycophancy, sycophants: 140, 157, 163, 168, 170, 174, 175, 186 n. 5, 220, 223–24, 227 symmory: 111 synêgoros: 155 n. 11, 158 syngrapheis: 13, 48, 137, 146 n. 34 Syracuse: 153 talio: 25, 63 n. 15, 160, 234, 237 taphê: 93, 97, 178 n. 89, 180–82 Teisamenus decree: 14, 147, 151–52 Teisis: 18, 24, 26, 76, 83 temple robbery (hierosylia): 183 n. 102 Ten, the (governors of Peiraeus): 138, 142 n. 21, 143 Ten, the (successors of Thirty): 141, 142 n. 21, 143, 144, 158, 171, 175, 180 n. 92, 194 Theagenes of Megara: 36 Thebes: 178, 182–83 theft: 124, 186, 188, 189, 208 Theocrines: 81–82 Theocritus: 186, 216, 219, 221, 223, 225 Theognis: 153, 169 Theophemus: 24, 110–120 Theophrastus: 103 Theramenes: 141, 155, 158–60, 168, 175–77, 185, 186, 203, 207 n. 41, 208, 211, 213, 223, 225, 226 n. 59, 231 Therippides: 64 Thirty Tyrants: 13–14, 30, 31, 42, 48, 66, 77, 127, 136, 137, 138–52, 153–235, 238 Thrasybulus: 141, 154 n. 4, 172 Thrasybulus of Calydon: 126, 128, 129 n. 60, 195–96 Thrasydaeus of Elis: 167 n. 47

264

General Index

Three Thousand, the: 139 n. 15, 140, 141, 142, 150, 173–74, 175, 176, 204, 207 n. 41, 208, 213, 214, 226 n. 59, 231, 232, 234 Thucydides: 191–92 Thudippus: 85, 90–92, 107, 110, 112, 215 n. 50 Timarchus: 150 Timocrates: 105–9 Timoxenus: 127 transitivity and heritability: 25, 108, 180, 213 n. 47 treason: 183 n. 102 trial, procedure of: 42 “trierarch” ([Dem.] 47): 24, 71, 110–20, 130– 31, 152, 171 truth, factual and normative: 58 Twelve Tables: 47–48, 232 n. 69

Ur-Nammu: 46 n. 43 volition: see intent, degrees of wergild: 51 n. 76, 52, 79 n. 60, 243–44 women, and diômosia: 116; capacity to testify at trial: 117 n. 20; participation in funerals: 70, 92, 101; role in propagation of enmity: 67, 68 n. 28, 94, 205 wounding, intentional: see graphê traumatos ek pronoias written law, importance of: 40, 46 Xenophon: 160, 168, 170 n. 58, 172 Xenophon of Curium: 139, 216

INDEX LOCORUM I. GREEK AESCHINES 1 (Against Timarchus) 6: 232 n. 68 6ff.: 43 n. 33 13: 97 19–20: 129 n. 59 25–26: 232 n. 68 28–32: 129 n. 59 58–59: 18 n. 9 90–91: 61, 124 91: 125, 129 n. 60, 186 n. 5, 189 n. 9 170–72: 22 171–72: 127 173: 150 183: 232 n. 68 2 (On the False Embassy) 88: 186 n. 6 93: 80 148: 22 176: 177 n. 82, 232 n. 68 3 (Against Ctesiphon) 10: 186 n. 5 21: 86 n. 10 51: 80 51–52: 80 52: 21, 22 108: 42 n. 27, 232 n. 68 175–76: 225 n. 57 235: 139 n. 15, 141, 179–81, 232 n. 68 257: 232 n. 68, 235 n. 74 258: 125 n. 51 AESCHYLUS Agamemnon 1501: 62 n. 12 Persae 354: 62 n. 12 ALCAEUS (Page) 163: 47 165: 47

ANDOCIDES 1 (On the Mysteries): 144–147, 149, 151– 52 73: 42 n. 29 74: 225 n. 57 77–79: 145 n. 33 81: 150 n. 43, 234 81–82: 144, 146–47, 151 83–84: 135 n. 1, 147, 151–52 85–87: 147 90: 49 n. 62, 144, 194, 232 n. 68 90–91: 142 n. 20 91: 142, 144 n. 28, 145 94: 59, 139 n. 15 96–98: 13 99: 168 n. 53 3 (On the Peace with Sparta): 149 10: 232 n. 68 11–12: 147 [4 (Against Alcibiades)] 18: 61 ANTIPHON 1 (Against the Stepmother): 65–66, 85 1: 64 n. 18, 66, 67 1–2: 77 3: 186, 186 n. 5 17: 66 27: 78 29–30: 64 n. 18, 65, 66, 67 30: 106 n. 64 2 (First Tetralogy) g 10: 62 n. 12 3 (Second Tetralogy): 215 n. 50 a 2: 73 n. 48 b 9: 215 n. 50 g 11: 73 n. 48 4 (Third Tetralogy) a 3–4: 62 n. 12 b 2: 215 n. 50 b 7: 215 n. 50

266

Index Locorum b 8: 62 n. 12 g 7: 67 5 (On the Killing of Herodes): 71, 123–26, 128, 129 n. 60, 130, 136 n. 3, 151, 185 n. 2, 187 n. 7, 190, 238, 245 n. 19, 246 8–19: 124 9: 61 n. 10 9–10: 123–24 10: 125 11: 63, 125 11–12: 61 13: 61, 125 14: 57, 135 15: 125 16: 125 17: 124 47: 245 48: 186, 186 n. 5 59: 125 61: 66 n. 24 82–83: 63 84–95: 124 85: 61 n. 10, 124 85ff.: 125 6 (On the Chorister): 72–76, 80–81, 82, 136 n. 3 2: 135, 136 n. 3 34: 76 34–36: 73 35–36: 72 38: 74 39: 75, 76, 80 40: 76, 81 42: 59, 74 46: 73, 76 48: 76 Fragments (Thalheim) I: 176 n. 77

APOLLODORUS Bibliotheca 1.1.4: 62 APPIAN Civil Wars 1.95.2–5: 230 n. 63 ARISTOPHANES Clouds 206–8: 24 n. 29

Peace 169–72: 246 505: 24 n. 29 Thesmophoriazusae 332–51: 41 n. 24 Wasps: 24 n. 29 ARISTOTLE [Constitution of the Athenians (Ath. Pol.)]: 35–40, 43–45 1: 35 n. 1, 38 n. 12, 54 n. 88 2: 39, 39 n. 18, 43, 44, 44 n. 36, 45 n. 39 3: 39 4: 35, 35 n. 1, 39, 47 n. 49, 135 n. 1 5: 38 n. 13, 43–44, 44 n. 36, 46 n. 43, 233 5–12: 39 6: 39, 44 7: 43 n. 30, 135 n. 1 8: 211 9: 172, 232 n. 68, 235 n. 74 12: 44, 233 n. 70, 233 n. 71, 234 13: 39 n. 18, 42 n. 27 15: 44 20: 37 n. 11 22: 173 26: 41 n. 26 29: 138 n. 12, 235 n. 73 29–33: 137 n. 9 30: 138 n. 12 31: 137 n. 9, 138 n. 12 32: 137 n. 9, 138 n. 12, 175 33: 176 n. 76 34: 233 35: 138, 139, 141, 168 n. 50, 170 n. 58, 173 n. 69, 233 35–36: 232 n. 68 36–37: 141 38: 141 38–39: 142 39: 49 n. 62, 142, 142 n. 20, 154 n. 4, 161, 194, 234 n. 72 40: 142, 142, 142 n. 20, 145 n. 31, 148–49 41: 232 n. 68, 235 n. 74 48: 156 n. 15 52: 61, 92, 114 n. 12 53: 113 57: 59, 73 n. 48, 156 n. 14 59: 223 n. 55

Index Locorum Politics 1273b35–1274a21: 232 n. 68 1274b15–16: 47 n. 49 1274b15–18: 45 n. 41 1274b18–19: 46 n. 48 1285a24–b1: 46 n. 47 1296a18–20: 232 n. 68 Rhetoric 1363a20–21: 26 n. 41 1363a33–34: 26 n. 41 1372a11–21: 27 n. 42 1378a19–b10: 160 n. 25 1381a24–25: 163 n. 31 1386b16–24: 229 n. 61 1396a12–14: 183 n. 101 1400a15–18: 232 n. 68 1400a32–36: 232 n. 68 1400a35–36: 171 n. 62 1400b22–23: 45 n. 41 1419b24–26: 160 n. 25 DEINARCHUS 1 (Against Demosthenes) 29: 186 n. 5 30: 22 2 (Against Aristogeiton) 24–25: 125 n. 51 Fragments (Conomis) X.5 (Against Phormisius): 81 XIX.13 (Against Callisthenes): 81 DEMOSTHENES 9 (Third Philippic) 43–44: 125 n. 51 15 (On the Liberty of the Rhodians) 32: 225 n. 57 18 (On the Crown) 6: 235 n. 74 6–7: 232 n. 68 130: 194 n. 22 132: 117 n. 21, 172 133: 231 n. 65 19 (On the False Embassy) 121: 186 n. 5 239: 162 n. 30 251–56: 232 n. 68 271: 125 n. 51

267

20 (Against Leptines) 11–12: 232 n. 68 93: 232 n. 68 104: 232 n. 68 157–58: 135 n. 1 158: 73, 73 n. 48 21 (Against Meidias): 21–22, 24 hyp. 1.2: 21 hyp. 2.5: 21 1: 21 1–2: 21, 22 13: 21 14–18: 21 18: 21 43: 63, 64 n. 17, 83, 156 n. 14 47: 118 n. 24 66: 86 n. 10 74: 21 77: 157 n. 17 78–80: 21, 22 81: 21 81–101: 21, 22 83–101: 231 n. 66 94: 113 n. 9 103: 22 104: 22, 127 111: 22 116–17: 127 118: 87 22 (Against Androtion): 20 n. 14, 30, 85, 105, 110, 120, 209, 239 1: 108 2: 107 2–3: 76 n. 56, 105 3: 106, 108 30–31: 232 n. 68, 235 n. 74 50–52: 117 n. 21 52: 172, 232 n. 68 23 (Against Aristocrates): 40, 49, 135 n. 1, 152, 241–47 28: 46 n. 45, 64, 79, 122, 129 n. 60 31: 46 n. 45, 122 n. 36, 127, 129 n. 60 37: 64, 78 44: 64, 79 50: 113 n. 8 51: 43 n. 30, 64, 122, 152 51–52: 123 n. 39 53: 16, 60, 188, 215 n. 50 56: 91 n. 21 60: 52

268

Index Locorum 65–80: 59, 152 n. 44, 191 66: 140 n. 18, 152, 152 n. 45 67: 42 67–69: 61 69: 51, 61, 78 71: 61 71–73: 156 n. 14 72: 63, 64, 83, 84 n. 72, 156 n. 14 72–73: 78 80: 61, 128–31, 152, 188–89 82: 241 83–84: 244 n. 9 83–85: 241–42 84: 242, 246 n. 20 85: 247 89: 156 n. 14 218: 242, 246 n. 20 24 (Against Timocrates): 30, 85, 105, 110, 120, 209, 239 7: 106, 107 7–8: 76 n. 56, 105–6 8: 108 11–14: 108 39–40: 108 57–58: 232 n. 68 105: 61, 74, 129 n. 60 106: 232 n. 68 125–26: 108 137: 108 148: 231 n. 64 149–51: 231 n. 64 158–86: 108 163–64: 232 n. 68 211: 232 n. 68 [26 (2 Against Aristogeiton)] 4: 232 n. 68 23: 232 n. 68 24: 58 27 (1 Against Aphobus) 1: 163 n. 32 28 (2 Against Aphobus): 64–65 15: 64 n. 18 15–16: 64, 66, 67 29 (3 Against Aphobus): 119 n. 27 22: 168 n. 53 36 (For Phormio) 27: 232 n. 68

37 (Against Pantaenetus) 33: 114 n. 12 59: 65, 83, 84 38 (Against Nausimachus) 22: 83 39 (1 Against Boeotus) 1: 163 n. 32 26: 186 n. 5 [40 (2 Against Boeotus)] 10–11: 117 n. 20 31: 113 32: 164 n. 38 41 (Against Spudias) 2: 163 n. 33 [42 (Against Phaenippus)] 1: 232 n. 68 [43 (Against Macartatus)]: 41, 49 5: 103 n. 55 51: 92 n. 25, 118 n. 24 57: 41, 83, 118 57–58: 93 62: 70, 92 65: 99 66–67: 232 n. 68 [44 (Against Leochares)] 32–33: 101 45 (1 Against Stephanus) 59: 186 n. 5 81: 186 n. 5, 189 [46 (2 Against Stephanus)] 14: 97 n. 39, 139 20: 68 n. 27 [47 (Against Euergus and Mnesibulus)]: 21 n. 19, 23, 24, 30, 69, 71, 110–31, 172, 239 7: 113 n. 8 15: 113 n. 8 20: 111 26–33: 112 28: 111 n. 4 34–35: 112 35: 113 n. 8 38: 113 39: 113 n. 8 40: 113 n. 8 41–44: 113 44: 111

269

Index Locorum 45: 114 n. 13 45–46: 114 47: 113 n. 8 49–51: 114 52–53: 114 53: 117, 171 55: 118 57: 114 58: 117 58–59: 115 60: 117 62: 114, 115 64: 114 67: 115 68–73: 115–20 69: 51, 69 69–70: 116 70: 59, 71, 118, 120 71: 43 n. 30, 119, 135 n. 1, 152 71–72: 55 72: 54 n. 86, 59, 118, 119, 120 72–73: 121 73: 118 78: 114

41: 119 n. 27 72: 119 n. 27 [60 (Funeral Oration)] 3–9: 183 n. 101 8: 183 n. 99 [61 (Eroticus)] 49–50: 232 n. 68 DIODORUS SICULUS 9.1: 232 n. 69 12.26: 47 n. 54 14.4: 232 n. 69 14.32.4: 227 26.1.1: 232 n. 69 DIOGENES LAERTIUS 2.40: 86 n. 8 2.42: 150 n. 42 DIONYSIUS OF HALICARNASSUS Letters to Ammaeus 1.4: 105 n. 61

[48 (Against Olympiodorus)] 1: 85 n. 2 56–57: 232 n. 68

ETYMOLOGICON MAGNUM

54 (Against Conon): 18–19, 21, 22, 23, 24–25, 26, 231 n. 66 1: 163 n. 33, 164 n. 36, 231 n. 65 1–2: 22 3: 19, 166 n. 43 3–6: 166 n. 43 5: 19 6: 19, 166 n. 43 7–9: 19 13: 19 17–19: 21, 24–25, 51 n. 72 35: 27

EURIPIDES

57 (Against Eubulides): 119 n. 27 67: 92 n. 24 70: 183 n. 102

GORGIAS

[58 (Against Theocrines)]: 81–82 1: 42 n. 29 28–29: 81 29: 82 n. 67 [59 (Against Neaera)]: 119 n. 27 1: 157 n. 17, 166 n. 43 9–10: 60 n. 7 15: 157 n. 17

andrias: 242 n. 4

Supplices 301–13: 183 n. 99 365–80: 183 n. 99 433–34: 46 n. 45 524–27: 183 n. 99 734–59: 183 n. 100 EUSEBIUS Chronica 1.33: 35 n. 1

Palamedes fr. 11a (D–K): 46 n. 45 HARPOCRATION androlêpsia: 242–43 atimêtos agôn kai timêtos: 156 n. 15 epenenkein dory epi têi ekphorai: 51, 69 epeskêpsen: 64 n. 18 hypophonia: 53 n. 82, 81

270

Index Locorum

HERACLEIDES LEMBUS Epitome 2: 35 n. 1, 37 n. 9 HERODOTUS 1.8: 120 1.59: 42 n. 27 1.61: 28, 41 1.91: 41 n. 24 3.80: 139 n. 15 5.62–63: 42 n. 27 5.70–72: 37 n. 11 5.71: 35 n. 1 6.130–31: 38 6.136: 42 n. 29 7.141–43: 148 9.27: 183 n. 100 HERONDAS 4.11–18: 68 n. 29 HESIOD Works and Days 38–39: 46 748: 52 755: 52 HOMER Odyssey 3.196–97: 50 n. 67 23.118–22: 50 n. 67 HYPEREIDES 1 (For Lycophron): 231 n. 66 fr. 1: 231 n. 64 7: 66 n. 23 20: 183 n. 102 2 (Against Philippides) 8: 232 n. 68 3 (Against Athenogenes) 5–8: 82 21: 235 n. 74 21–22: 232 n. 68 25: 168 n. 53 4 (For Euxenippus): 231 n. 66 7–8: 226 n. 58

INSCRIPTIONS IG I3 10: 123 n. 41 6–11: 245 10–11: 245 IG I3 19: 246 IG I3 40: 123 n. 41, 245 n. 19 71–76: 245 IG I3 102: 128 n. 55, 195–96, 197 6–25: 195 25–34: 195 IG I3 104: 40, 49–56, 137 n. 9, 245 1–9: 48, 137–38 4–5: 135 n. 1 10: 46 n. 45 10–23: 49–56 11: 245 11–13: 41, 59, 142, 200 12–13: 151 13–16: 63 13–19: 41, 54–55, 83, 245 14: 54 15: 54 n. 86 16: 54 16–17: 245 19–20: 41 20ff.: 41 20–21: 72 20–23: 59, 118, 245 21: 51 n. 74, 54 n. 86 22: 54 n. 86 23–24: 245 26–29: 64, 78 27: 245 28–29: 245 30–31: 64, 79, 122 34–35: 245 37–38: 52, 245 56: 46 n. 45 IG I3 105 31–32: 140 n. 17 36: 140 n. 17 IG I3 156: 246 IG I3 161: 246 5: 245 n. 14 IG I3 162: 246 10: 245 n. 14

Index Locorum IG I3 164: 246 24–25: 245 n. 14 IG II2 10: 167 n. 48, 196–97 4: 196, 197 n. 25 7: 197 n. 25 8: 197 n. 25 56–57: 197 n. 25 IG II2 38: 246 n. 21 2–6: 245 n. 15 IG II2 111 27–41: 246 n. 21 27–42: 127 IG II2 226 34–40: 245 n. 15, 246 n. 21 IG II2 1612 313–16: 111 n. 4 IG II2 1631 442–44: 89 n. 18 470–73: 89 n. 18 IG II2 1747 30–31: 89 n. 18 Fornara 68: 123 n. 41, 245 69: 125 n. 51 103: 123 n. 41, 245 155: 128 n. 55 Meiggs-Lewis 30: 41 n. 24 31: 123 n. 41, 245 52: 123 n. 41, 245 85: 128 n. 55, 195 86: 49 n. 63 Rhodes-Osborne 4: 196 39: 127, 246 n. 21 70: 245 n. 15, 246 n. 21 Tod 23: 41 n. 24 86: 128 n. 55, 195 87: 49 n. 63 100: 196 142: 127 van Effenterre-Ruzé I.02: 49 n. 63 I.104: 41 n. 24 I.105: 41 n. 24

271

ISAEUS 1 (On the Estate of Cleonymus) 6: 85 n. 2 9–10: 91 n. 20 20: 91 n. 20 30: 91 n. 20 33: 91 n. 20 2 (On the Estate of Menecles) 1: 163 n. 32 36: 100 3 (On the Estate of Pyrrhus) 1–2: 103 n. 55 43: 103 n. 55 59: 97 n. 37 69: 64 n. 18 71: 64 n. 18 73: 64 n. 18 4 (On the Estate of Nicostratus): 97–98 19: 97–98 26: 91 n. 20, 99 28: 186 n. 5 5 (On the Estate of Dicaeogenes) 6: 103 n. 55 7 (On the Estate of Apollodorus) 22: 92 n. 25 8 (On the Estate of Ciron): 95–96, 98 n. 41, 100–2 3: 66 n. 23 15–17: 95–96 21–22: 100 23: 100 24: 101 26: 101 27: 101 31: 68 n. 27 34: 97 n. 37 38: 100, 101 44: 66 n. 23 9 (On the Estate of Astyphilus): 30, 85, 89–104, 107, 110, 120, 239 1: 89 2: 89, 94 3: 103 4: 97, 103 5: 103 5–6: 104 14: 89 15: 90

272

Index Locorum 16: 91 16–21: 90 17: 90, 94 n. 30, 112 17–19: 88 n. 12, 215 n. 50 18: 104 19: 64 n. 18, 90, 91, 103 20: 91, 95, 96, 99 n. 44 21: 95 22: 90 24: 90, 104 30: 95, 96 31: 99 n. 44 36: 91 37: 91 11 (On the Estate of Hagnias) 11–12: 92 n. 25 Fragments (Thalheim) 15 (For Eumathes): 64 n. 18

ISOCRATES 7 (Areopagiticus) 16: 232 n. 68, 235 n. 74 62: 232 n. 68 65: 148 66: 177 n. 82, 232 n. 68 67: 139 n. 15, 141 73: 232 n. 68 8 (On the Peace) 108: 232 n. 68 123: 232 n. 68 15 (On the Antidosis) 231: 232 n. 68 235: 232 n. 68 313: 232 n. 68 16 (On the Team of Horses): 149 43: 232 n. 68 50: 232 n. 68 18 (Against Callimachus) 16: 176 n. 79 17–18: 232 n. 68 20: 49 n. 62, 143 52–54: 60 n. 7

ISTRUS (FGrHist 334) F 14: 69 LEXICA SEGUERIANA Dikôn Onomata (Bekker) p. 186: 74 Lexeis Rhêtorikai (Bekker) pp. 213–14: 243 p. 310: 73 n. 48 Synagôgê Lexeôn Chrêsimôn (Bekker) pp. 393–94 (androlêpsia): 242 n. 4 p. 421 (apeniautismos): 84 n. 72 LONGINUS On the Sublime 34.2: 166 n. 41 LYCURGUS 1 (Against Leocrates) 31: 168 n. 53 61: 232 n. 68 112: 126, 195 113: 183 n. 102 115: 183 n. 102 124: 232 n. 68 146: 162 n. 30 147: 225 n. 57 LYSIAS 1 (On the Killing of Eratosthenes): 16–17, 20, 21, 22, 71 21: 186 n. 5, 188 30: 140 43–44: 20 43–45: 16 2 (Funeral Oration): 182–83 3: 183 n. 101 7: 182 8: 183 9: 183 10: 182 n. 98, 183

20 (Against Lochites) 1: 113 n. 8 11: 139 n. 15, 141

3 (Against Simon): 23, 171–72 1: 61, 120 n. 29 6: 117 n. 21 6–7: 171

21 (Against Euthynus): 149 2: 176 n. 79, 232 n. 67 3: 232 n. 67

4 (On an Intentional Wounding, Defendant and Prosecutor Unknown): 16–18, 22, 23, 24, 29, 76, 82

273

Index Locorum 1–2: 17 2–4: 82 4: 27, 61, 120 n. 29 5: 17 10: 17 [6 (Against Andocides)]: 149 9 (For the Soldier) 20: 26 n. 41 10 (1 Against Theomnestus) 16: 231 n. 64 12 (Against Eratosthenes): 20 n. 14, 31, 108, 149, 153–84, 200, 202, 203, 210, 213, 214, 218, 223, 229, 238 1–2: 77 1–3: 155 2: 77, 157, 158, 160, 162, 163, 170, 170 n. 59 3: 163, 166, 166 n. 42 3ff.: 154 n. 4 4: 163, 166 n. 42, 167 5: 168, 168 n. 50 6: 167, 169, 170 6–7: 217 6–17: 153 7: 168 n. 52, 170 8: 117 n. 21, 172 8–12: 169 9: 183 9–11: 177 11: 169 12–13: 169 n. 54 12–15: 169 14: 169 16: 139, 155, 172 17: 178 18: 178, 180–81 18–19: 154 n. 3 19: 167 n. 46, 169, 172 20: 163, 167, 167 n. 44, 170, 228 21: 170, 174, 179, 228 22: 155, 164 23: 170, 230 25: 139, 170 28: 162 n. 29, 214 n. 48 30: 172 31: 214 n. 48 33: 172 34: 157 35: 77, 158 36: 42, 139 n. 15, 164, 165

37: 155, 156, 164–65 42–43: 158 48: 139, 171, 174, 226 n. 58 51: 77, 158 52: 139 n. 15, 174 n. 71, 227 52–57: 141 54–58: 158, 175 55: 175 n. 72 56: 171 n. 60, 180 n. 92 59: 158 60: 77, 158, 171 62: 158, 159 62–78: 155, 158 64: 158 65: 175 65–70: 159 66: 176 n. 76 67: 176, 211 71–72: 159 73–74: 159 75: 159 76: 159 77: 176, 177 78: 159 79–80: 160 79–100: 77 80: 170 n. 59 81: 174 81–82: 160 81–100: 160 82: 174 82–83: 139 n. 15 82–84: 165 83: 160 83–84: 160 84: 155 87: 182 87–88: 179 88: 160, 183, 207 n. 40 89: 159 n. 20 90: 170 n. 59, 214 n. 48 90–91: 159, 161 92: 161 92–94: 161 93: 161, 171, 174, 203 n. 36 94: 161 95–98: 162 96: 170 n. 59, 172, 177, 179, 183 98: 177 99: 162, 166, 182 99–100: 62, 162 100: 163, 211

274

Index Locorum 13 (Against Agoratus): 20 n. 14, 31, 66– 68, 94, 108, 127, 140, 149, 153, 160 n. 24, 182, 185–235, 239 1: 203 1–2: 77, 208 1–3: 201 2: 77, 192, 202, 203, 204 3: 202, 206 3–4: 229 4: 64 n. 18, 203, 205 5–16: 168 5–43: 186 8: 203 9: 203 9ff.: 159 n. 22 10: 203, 203 n. 35 12: 203, 225 13: 203, 204, 205 n. 38 13–14: 208 15: 225 16: 203 17: 203, 225 17–18: 208 18: 193, 194, 225 18–19: 224 19: 193, 215, 216 n. 51 19–22: 216 20: 173 n. 69, 203 21: 219, 225 21–31: 139 22: 216 23: 208, 217 24: 217 24–26: 217 25: 218 27: 224 28: 214, 215, 218 29: 215, 218, 219 29–30: 208 30: 186, 187, 211 31: 215, 219 31–32: 219 32: 219, 219 n. 53 33: 214 n. 49, 219 n. 53, 222 34–38: 139, 220 35: 220 36: 204, 226, 227 37: 173 37–38: 227 38: 206, 208, 214, 222 40–42: 160 n. 27, 205 41–42: 64 n. 18, 66–67, 206, 221, 222 n. 54

43: 222 n. 54, 227 43–44: 214 n. 49 43–45: 228 44: 139 n. 15, 140 n. 16, 227 44–45: 230 45: 229 46: 207 n. 40 47: 204, 228 48: 193, 204, 222 n. 54 49: 222 n. 54 51: 222 n. 54 52: 215 52–53: 214 53: 214, 222 n. 54, 228 54: 139, 216, 222 n. 54 55: 139, 222 n. 54 55–57: 126, 191 n. 15 56: 185 n. 1 57: 222 n. 54 58–59: 217, 218, 222 n. 54 60: 224 n. 56 61: 214, 222 n. 54 62–63: 208 63: 210 64: 194, 222 n. 54 65: 223 67–68: 63 70: 195 70–71: 195 71: 195, 196 71–73: 126 72: 128 n. 55, 196 73: 195, 197 73–74: 195 77: 193, 197, 208 77–78: 210 77–79: 141, 197 78: 150 n. 43, 209 79: 62 n. 12, 209 81: 210, 222 n. 54 82: 209, 211 83: 106 n. 64, 185 n. 1, 189 84: 224 85: 187, 189 85–87: 185 n. 2, 191 n. 15, 222 n. 54 86: 202 86–87: 187 87: 199 89–90: 193 92: 64 n. 18, 67, 78, 203, 205, 206, 211, 222, 222 n. 54 92ff.: 78 93: 207, 211, 222, 222 n. 54, 229

275

Index Locorum 93–100: 211 94: 64 n. 18, 205 n. 38, 212, 222 n. 54 95: 205, 212, 222 n. 54 96: 62, 222 96–97: 212 97: 207, 229 14 (1 Against Alcibiades): 19–20 1: 20 5: 225 n. 57 8–9: 225 n. 57 15 (2 Against Alcibiades): 20 12: 20, 26 16 (For Mantitheus): 149 8: 234 18 (On the Property of Nicias’ Brother): 149 23 (Against Pancleon): 119 n. 27 25 (Defense on a Charge of Overthrowing the Democracy): 149 26 (Against Evander): 149 13: 139 n. 15, 140 n. 16 30 (Against Nicomachus): 48, 137 n. 9, 149 2: 48 n. 58 4: 49 28: 232 n. 68 31 (Against Philon): 149 14: 211 32 (Against Diogeiton) 1: 85 n. 2, 91 n. 20, 163 n. 32 34 (On Not Overthrowing the Ancestral Constitution): 149 Fragments (Gernet-Bizos) I.2.I: 169 n. 55, 170 n. 57 I.6.I: 167 n. 47 Fragments (Thalheim) 10 (Against Ariston): 43 n. 33 23 (Against Glaucon on the Estate of Dicaeogenes): 102 75 (Against Teisis): 18, 22, 24, 26, 76, 83

NEW TESTAMENT Matthew 10:21: 27 n. 44 10:35–36: 27 n. 44 Mark 13:12: 27 n. 44 Luke 12:52–53: 27 n. 44 14:26: 27 n. 44 15:6: 26 n. 40 21:16: 27 n. 44 Romans 12:19: 65 OLD TESTAMENT (LXX) Exodus 20:5: 41 n. 24 21:22–25: 25 n. 36 34:7: 41 n. 24 Numbers 14:18: 41 n. 24 Deuteronomy 5:9: 41 n. 24 28:18: 41 n. 24 32:35: 65 Micah 7:6: 27 n. 44 PHOTIUS ephetai: 60 n. 8 prodikasia: 74 PLATO Apology 24b8–c1: 86 n. 8 32c–d: 139 n. 15 32c4–d9: 150 32d7–8: 139 n. 15 36a5–6: 150 n. 42 36d4–e3: 150 n. 42 38b1–9: 150 n. 42 Euthyphro: 30, 85–88, 95, 110, 239 3b9–c2: 88 3e–5e: 86 n. 3 4a1: 86, 88 4a6: 86 4a7: 86

276

Index Locorum 4a11: 86 4b4–6: 86–87 4b7–8: 88 4c2–d5: 86 4c3–d5: 87 4d5–e1: 87 4e1–3: 88 4e7–8: 88 4e9–5a2: 88 5d8–e1: 88

Publicola 25.5: 233 n. 70

Gorgias 490e9–11: 136 n. 4

Solon: 232 n. 69 1: 37 11: 42 n. 27 12: 35 n. 1, 36, 36 n. 6, 37, 37 n. 11, 38, 38 n. 12, 38 n. 13, 54 n. 88, 71 n. 38 13: 39 n. 17 14: 38 n. 13, 233 n. 70 17: 43 n. 30, 45 n. 41 21: 70, 70 n. 34

Laws 868c8: 84 n. 72

Themistocles 6: 125 n. 51

Letters 7.324b8–325a5: 232 n. 68 7.324e–325a: 139 n. 15

Theseus 29: 183 n. 100

Menexenus 239a–b: 183 n. 101 Phaedo 117a–c: 143 117–18: 63 118a: 68 Republic 327b–c: 167 n. 45 328b: 167 n. 45 332a–b: 26 n. 41 343e4–6: 27 n. 42 599e1–3: 232 n. 68 PLUTARCH Lycurgus 1: 40 9: 40 16: 40 Lysander 14: 147 Moralia 349f: 210 n. 43 [832c–d]: 124 n. 46 [834a]: 165 n. 40 [834a–b]: 42, 176 n. 77 [835f]: 167 n. 47 [835f–836a]: 154 n. 4, 167 n. 48 [836a]: 154 n. 3 Phocion 35–36: 89 n. 18

POLLUX 8.40: 59 n. 3 8.41: 242 n. 4 8.50–51: 242–43 8.65: 69 8.90: 73 n. 48 9.61: 43 n. 33, 52 n. 78 SCHOLIA TO AESCHINES 1.39 (82 Dilts): 140 1.171 (339 Dilts): 127 SCHOLIA TO DEMOSTHENES 21.104 (364 Dilts): 127 21.110 (385 Dilts): 127 SOLON (West) 4: 233 5: 44, 233 n. 71 13: 233 32: 233, 233 n. 70 33: 233 n. 70 34: 233 n. 70 36: 44 n. 36, 234 37: 44–45, 233 SOPHOCLES Antigone: 177–78 1–99: 178 n. 86 60: 178 n. 86 584–85: 41 n. 24 594–97: 41 n. 24 643–44: 26 n. 41 1064–90: 182 n. 98

277

Index Locorum STRABO 13.2.3: 47 SUDA androlêpsia kai androlêpsion: 243 ephetai: 60 n. 8 hypophonia: 81 prodikasia: 74 THEOPHRASTUS Laws (Szegedy-Maszak) 12: 81 THUCYDIDES 1.6: 177 n. 81 1.77: 123 n. 41 1.126: 35 n. 1, 36, 37, 37 n. 11, 37 n. 11, 41 2.36: 183 n. 101 3.82: 192 8: 137 n. 9 8.68: 124 n. 46, 175, 176 n. 77 XENOPHON [Constitution of the Athenians] 1.14: 245 n. 19 1.16–18: 123 n. 41 3.2: 24 n. 29 Hellenica 1.6.25–1.7.35: 164 1.7.22: 183 n. 102 2.1.18–32: 164 n. 37 2.2.20: 147 2.3.2: 164 n. 37 2.3.12: 140 n. 16, 168 n. 50, 220 2.3.13: 164 n. 37 2.3.14: 140 n. 16 2.3.15–56: 141, 158, 159 n. 23 2.3.16: 138 n. 11 2.3.21: 168, 170 n. 58, 171 n. 61

2.3.21–22: 140 n. 16 2.3.22: 168 2.3.23: 226 n. 59 2.3.24: 180 n. 92 2.3.28: 171 n. 62 2.3.29: 176 n. 78 2.3.30: 176 n. 76 2.3.31: 159 n. 21 2.3.32–33: 176 n. 78 2.3.38: 140 n. 16 2.3.38–40: 171 2.3.39: 139 n. 15 2.3.43: 168 n. 51 2.3.46: 176 n. 78 2.3.48: 138 n. 11 2.3.51: 140, 174 n. 71, 176 2.3.52: 176 n. 80 2.3.53: 176 2.3.54–55: 177 2.3.55: 226 n. 59 2.4.1–23: 141 2.4.8: 228 n. 60 2.4.8–9: 174 n. 71 2.4.9: 226 n. 59 2.4.10: 228 n. 60 2.4.14: 140 n. 16, 172 2.4.21: 170 n. 58 2.4.24–43: 142 2.4.39: 210 n. 43 2.4.43: 142 n. 20, 145 n. 30 Memorabilia 1.1.1: 86 n. 8 1.2.12: 150 n. 40 1.2.16: 150 n. 40 1.2.24: 150 n. 40 1.3.13: 84 n. 72 2.6.35: 26 n. 41 4.4.3: 139 n. 15 4.5.10: 26 n. 41 Oeconomicus 14.4–5: 43 n. 33

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Index Locorum

II. LATIN CICERO De Legibus 2.58–62: 232 n. 69 DIGEST 1.2.2.4: 47 n. 54 10.1.13: 232 n. 69 11.7.4: 98 n. 41 11.7.12.4: 98 n. 41 11.7.14.13: 98 n. 41 47.22.4: 232 n. 69 48.5.24(23). pr: 232 n. 69 FESTUS

LEX RIBUARIA 85: 54 n. 90 LEX SALICA 57.5: 54 n. 90 LIVY 3.9: 47 n. 53 3.31: 45 n. 39, 47 n. 54, 232 n. 69 3.33: 47 n. 54 3.33–42: 47 n. 54 3.35: 47 n. 54 3.37: 47 n. 54 3.55: 48 4.1–6: 48

peculatus: 52 n. 78 NEPOS GAIUS Institutes 1.3: 48 n. 57 JUSTIN Epitome of the Philippic Histories 5.8–9: 232 n. 69 JUSTINIAN Institutes 1.2.4: 48 n. 57 JUVENAL 10.274–75: 232 n. 69

Thrasybulus 1.2: 232 n. 69 5: 232 n. 69 PACTUS LEGIS SALICAE ‘C’ pr. 1: 25 n. 38 PERSIUS 3.79: 232 n. 69 TACITUS Annals 3.26: 232 n. 69

III. OTHER NEAR EASTERN Code of Hammurabi pr. 3: 46 n. 43 pr. 13: 46 n. 43 207–8: 63 n. 15 209: 63 n. 15 211: 63 n. 15 213: 63 n. 15 Laws of Ur-Nammu 114–68: 46 n. 43

OLD ENGLISH Ælfred 1.5: 52 n. 79 Æthelberht 26: 63 n. 15 Beowulf 2435–43: 92 n. 23 2460–71: 92 n. 23

Index Locorum Ine 23.3: 63 n. 15 32–33: 63 n. 15 70: 63 n. 15 Wergild: 51 n. 76, 63 n. 15 Wihtræd 25: 51 n. 76, 52 n. 79 OLD NORSE (OLD ICELANDIC) Grágás 86: 63 n. 15 88: 59 n. 4 94: 67 n. 26 111: 63 n. 15 113: 63 n. 15 Hrafnkels saga Freysgoða 6: 27 n. 44 7: 56 n. 95, 59 n. 4, 130 n. 62 8: 130 n. 62 10: 56 n. 95, 177 n. 81

Laxdæla saga 14: 130 n. 62 19: 27 n. 44, 29 n. 50 26–27: 102 n. 54 49: 59 n. 4 50: 56 n. 95 53: 68 n. 28 55: 130 n. 62 56: 94 n. 33 59: 27 n. 44 59–60: 94 n. 33 60: 68 n. 28 64: 94 n. 33 65: 59 n. 4 66: 97 n. 39 78: 64 n. 19 Vatnsdæla saga 3–5: 65 n. 21 6: 64 n. 19

279