Trials from Classical Athens | Christopher Carey | Taylor & Francis eB

ABSTRACT

Trials from Classical Athens presents a selection of key forensic speeches with new translations and lucid explanatory notes, detailing the strengths and weaknesses of the arguments and a discussion of the legal issues raised. Carey offers a diverse repertory of legal case studies which deal with different aspects of Athenian law. The volume provides a unique and accessible introduction to the Athenian legal system and how the system reveals the values and social life of Classical Athens. This comprehensive book will be a fundamental resource for students of Ancient Greek history and anyone interested in the law, social history and oratory of the Ancient Greek world.

TABLE OF CONTENTS

chapter |25 pages

INTRODUCTION

chapter 1|11 pages

HOMICIDE CASES 26

chapter |2 pages

from the gods and from your ancestors, and you apply the same standards as they when voting for conviction; secondly avenge the dead man; and at the same time rescue me, for I am left all alone. [4] For you are my nearest kin. The ones who should by rights have acted as the dead man’s avengers and as my allies have proved to be the dead man’s killers and have become my adversaries. What allies is a man to seek, where else will he go for refuge, except to you and to justice? [5] I am amazed at my brother. Whatever does he mean in appearing as my opponent? Does he think that piety consists in not abandoning his mother? Personally, I think it far more impious to abandon the vengeance due to the dead man, especially as his death was unplanned and unintentional on his part, while the murder was deliberate and intentional on hers. [6] And he cannot claim that he knows for certain that his mother did not kill our father. For he refused the one source of sure knowledge, from torture, while he welcomed sources which could not provide information. Yet he should have been eager, and this was the substance of my challenge, to investigate what really happened. [7] For if the slaves did not support me, he could have offered a vigorous defence against me based on certain knowledge and his mother would have been rid of this charge. But where he refused to put the facts to the test, how can he possibly have knowledge of matters he refused to ascertain? [8] What defence will he offer, I ask myself. For he was well aware that torture meant she could not be saved; he thought her salvation lay in refusing the torture. They believed that the facts could be suppressed by this means. So surely his oath that he knows for certain cannot be true, if he refused to obtain sure information when I was willing to use the fairest test, the torture, in this matter? [9] For to start with I offered to put to the torture his slaves, who knew that this woman, their mother, had also plotted earlier to kill my father with drugs, that my father had caught her in the act and that she made no denial beyond claiming that she was administering them not to kill him but as a love potion. [10] This was my reason for wishing to put them to the test in this way. I put accusations against this woman in writing and invited my opponents themselves to act as questioners in my presence, so that the slaves would not be forced to answer questions put by me; instead I was satisfied if the questions in my document were used. (And it is right that this should count as evidence for me, that I am pursuing my father’s killer properly and

chapter |2 pages

sacrifice. [17] Philoneos’ concubine went along for the sacrifice. When they were in Peiraieus, Philoneos sacrificed, of course. And when he had completed the sacrifice, the female wondered how to administer the drug to them, before or after dinner. And as she considered the matter she concluded that after dinner was better; she was also acting on the instructions of this Klytaimestra, my brother’s mother. [18] The full account of the dinner would be too longwinded for me to tell and you to hear. I shall try to give as brief an account as I can of the rest, of how the poison was administered. After dinner, naturally, since one was sacrificing to Zeus of Possessions and entertaining the other, and one was about to go on a voyage and was dining with a close friend, they made a libation and offered incense for their future. [19] And while Philoneos’ concubine was pouring the libation for them – as they offered prayers which would never be fulfilled, gentlemen – she poured in the poison. Thinking she was being clever, she gave more to Philoneos in the belief perhaps that if she gave him more she would win more affection from him – she had no idea that she was my stepmother’s dupe until disaster struck – while she poured less in our father’s drink. [20] They for their part after pouring their libations took their final drink, holding in their hands their own killer. Philoneos died at once on the spot; our father was afflicted with a sickness from which he died after twenty days. For this the assistant who carried out the act has the reward she deserved, though she was not to blame – she was put on the wheel and then handed over to the public executioner; the guilty party, the one who planned it, will soon have hers, if you and the gods will it. [21] Note how much more just my plea is than my brother’s. I urge you to avenge the dead man, who is the victim of an irreparable wrong. For the dead man my brother will offer no request, though he deserves your pity and support and vengeance for having his life taken in a godless and inglorious manner before his time by the last people who should have done this. [22] His plea will be for the murderess, a plea which is unprincipled, unholy, which deserves neither fulfilment nor attention either from the gods or from you; he will seek with his plea (to induce you not to convict her for her crimes) though she could not induce herself not to devise them.* But you must give your support not to those who kill but to the victims of deliberate

chapter |35 pages

the ruin which has befallen them. Then if they are able, if they have time before they die, they summon their friends and relatives and call them to witness; they tell them the identity of the killers and solemnly instruct them to take vengeance for the crime against them – [30] as my father instructed me, his son, during his last pitiable illness. If they cannot reach them, they write down a statement and call their servants to witness and reveal the identity of the killers. This is what my father did; he revealed all this and gave his instructions to me, young as I still was, not to his slaves. [31] For my part, I have told my tale and given my support to the dead man and the law. It is for you to consider the rest for yourselves and to vote in accordance with justice. I think that the gods below also take an interest in the victims of wrongdoing. The central facts are straightforward enough. The speaker’s father died not long after a friend, Philoneos, with whom he had dined. According to the speaker, he believed himself to have been poisoned. Philoneos’ mistress, who was probably a slave, confessed under torture to administering poison, apparently in the belief that she was giving Philoneos a drug which would restore his desire for her. The speaker claims that his father imposed a solemn injunction (Greek episkepsis) on him, stating that he was the victim of murder and instructing him to pursue the killer. §30 seems to suggest that the speaker was very young at the time, and it may be that a substantial interval has intervened since the father’s death, perhaps the interval needed for the speaker to reach the age of majority and so be able to prosecute (there was no time limit, prothesmia, in homicide cases). There is no real reason to doubt the broad outline of ascertainable events provided by the speaker, and one can readily see why the son of the first marriage might welcome the chance to prosecute his stepmother. The problem resides in the imputation of guilt to the stepmother; there is in fact a striking lack of evidence to incriminate her. Even if we accept that Philoneos and the speaker’s father were poisoned (and not merely the victims of food-poisoning or some other natural cause) and that Philoneos’ mistress had administered a fatal drug (and did not simply confess to a non-existent crime to be rid of the torture), the speaker’s father could do nothing more than express his suspicions. Whether he even suspected his second wife is not made explicit by the speaker; this may be a deliberate evasion of a weak point. The woman who was tortured evidently did not incriminate the stepmother, or we should have expected to

chapter |1 pages

and solemn oath. [2] Now, if any other judges were going to decide my case, I should find the risk very frightening; for I observe that sometimes the effect of fabrications and accidents is such that the result often surprises those on trial. But coming before you I hope to receive just treatment. [3] What I most resent, Council, is that I shall be compelled to speak to you about matters which so embarrassed me that I tolerated mistreatment to avoid having them widely known. But since Simon has placed me in this difficult situation, I shall tell you the whole story without concealment. [4] And I ask, Council, that if I am guilty you show me no mercy; but if on this issue I prove that I am not guilty of the acts to which Simon swore, and in general if it becomes clear that my feelings for the lad display a folly inappropriate to my age, I ask you to think no worse of me; for you know that desire is common to all mankind, but the best and most decent man is the one who is capable of bearing his misfortunes with the most decorum. All my efforts to achieve this have been blocked by this man Simon, as I shall prove to you. [5] We both fell in love with Theodotos, a Plataian youth, Council. And I tried to win his affection by treating him well, while Simon thought that with violent and lawless behaviour he would force the boy to do whatever he wanted. It would take too long to tell all the mistreatment Thoeodotos has received from him. But what I think you should hear is his offences against me personally. [6] Discovering that the boy was with me, he came to my house at night, drunk, broke down the doors and went into the women’s quarters, when my sister and my nieces were there; and they have lived such a decent life that they are embarrassed to be seen even by their relatives. [7] Such was his violence that he refused to go until the passers-by and the people who came with him, shocked at his conduct in entering the presence of orphaned young girls, made him leave by force. And so far from regretting his outrageous conduct, he found out where we were dining and did the strangest thing, something quite incredible, unless one happened to know the man’s madness. [8] He called me from indoors, and when I came out he immediately tried to strike me; when I resisted, he stood at a distance and pelted me with stones. He actually missed me, but hit Aristokritos, who had come with him to see me, with a stone and split his forehead open. [9] Personally, Council, though I thought myself appallingly treated, I tolerated it through embarrassment at my unfortunate situation, as I have

chapter |1 pages

already said. I preferred to forgo satisfaction for these wrongs rather than to be thought a fool by my fellow-citizens, in the knowledge that, while these events would be thought consistent with the villainy of this man, my sufferings would excite mockery from many of those who habitually resent it if anyone in the city tries to be a useful citizen. [10] I was so unsure how to cope with this man’s contempt for legality, Council, that I decided it would be best to go away from Athens. So taking the boy along (I have to tell the whole truth) I left the city. When I thought that enough time had elapsed for Simon to forget the youth and regret his former misconduct, I came back. [11] I went off to Peiraieus. But Simon noticed at once that Theodotos was back and was at the house of Lysimachos, who lived near the house which Simon had leased, and he summoned some of his friends. They passed their time dining and drinking; they had set watchers on the roof so that when the boy emerged they could drag him in. [12] At this juncture I came back from Peiraieus, and while passing I called in at Lysimachos’ house. After a short interval we came out. Drunk by now, our opponents jumped on us. Some of Simon’s companions refused to join in his misbehaviour; but Simon here, Theophilos, Protarchos and Autokles began dragging the boy off. He however threw off his robe and took to flight. [13] As for me, thinking Theodotos would escape and that my opponents would turn back in shame as soon as they encountered people – with these thoughts I went off in another direction; I was so keen to avoid them, and I thought that all I had experienced at their hands a great misfortune. [14] And at this point, where Simon says the fight took place, none of them or us had his head cut open or suffered any other injury, as I shall prove by presenting those who were there as witnesses. Witnesses [15] The testimony of those who were there has shown, Council, that Simon was the offender and that he plotted against us, not I against him. After this the boy took refuge in a laundry, and they rushed in together and began to drag him off by force, while he yelled and called for witnesses to his protests. [16] A large number of people ran up and expressed disapproval of the affair, saying that these acts were appalling; but they ignored the comments and when Molon the fuller and some others tried to protect the boy they beat

chapter |1 pages

them severely. [17] By now they were in the vicinity of Lampon’s house, when I came upon them, walking along on my own. I thought it would be appalling and disgraceful of me to stand by while the youth was assaulted in so lawless and violent a manner; so I took hold of him. When asked why they were subjecting him to such unlawful treatment, my opponents refused to answer but let go of the young man and began to hit me. [18] A fight ensued, Council, in which the boy was pelting them and fighting for his life and these people were pelting us and still beating him drunkenly, while I was defending myself and the passers-by were all of them assisting us as the victims, and in this confusion we all had our heads split open. [19] As for all the others who joined Simon in his drunken violence, as soon as they saw me after this, they asked me to forgive them, as the ones who behaved intolerably and not the victims. And from that day to this, though four years have elapsed nobody has ever brought any complaint against me. [20] But as for this man Simon, the cause of all the trouble, for most of the time he kept his peace through fear for himself; but when he saw me lose some private suits arising from a challenge to exchange property, he began to despise me and with the impudence you see embroiled me in a trial of such a serious nature. To prove the truth of my story, I shall present you with those who were there as witnesses. Witnesses [21] You have heard what happened both from me and from the witnesses. I could wish, Council, that Simon’s attitude was the same as mine, so that you could hear the truth from both of us and decide with ease where justice lies. But since he has no respect for the oaths he swore, I shall try to correct the lies he has told you. [22] He had the audacity to state that he made an agreement with Theodotos and gave him three hundred drachmas, and that I schemed to detach the boy from him. But what he should have done, if this was the truth, was to summon the largest number of witnesses he could and deal with the matter legally. [23] But this man self-evidently never did anything of the sort, but assaulted and struck both of us, he came on a drunken visit, he broke down the doors and went by night into the quarters of free women. You should consider this conduct the firmest indication that he is lying.

chapter |1 pages

[24] Observe how implausible his claim is. He assessed his whole property at a value of two hundred and fifty drachmas. Now it would be remarkable if he hired a male lover for more money than he actually possesses. [25] But his impudence is such that he is not content to lie merely about this point, the payment of the money; he actually says that he has been repaid. But surely it’s inconceivable that at that point we would commit offences of the sort he has charged us with, in an attempt to deprive him of the three hundred drachmas, and pay back the money precisely when we had outfought him, without obtaining formal release from his charges and when under no compulsion? [26] No, Council, all this is a calculated fabrication by him; he says he gave the money so that he will not seem guilty of intolerable conduct in daring to treat the lad so outrageously when there was no compact between them, and he pretends to have been repaid because it is obvious that he never made a formal complaint about money or made any mention of it whatsoever. [27] And he claims that he was beaten and left in a terrible condition by me at his own door. Yet it is certain that he pursued the boy more than four stades from his house without any injury, and he denies this though more than two hundred people saw it. [28] He says that we came to his house with shards of pottery and I threatened to kill him; and this indicates intent. In my opinion, Council, it is easy to tell that he is lying, not only for you who regularly consider such matters but for the rest of the world as well. [29] Who could find it credible that with full intent and deliberation I came to Simon’s house in the daytime, with the lad, when there was such a large number of people gathered there, unless I was so deranged as to wish to fight alone against large numbers? Besides which, I knew that he would be delighted to see me at his door, since it was he who used to come to my house and force his way in, and who had the impudence to search for me without any consideration for my sister and my nieces, and finding out where I happened to be at dinner called me out and hit me. [30] And at that point, it seems, I kept my peace to avoid notoriety, regarding his criminality as my misfortune, but when time had passed, I then (according to him) became eager for notoriety! [31] If the boy had been at his house, it would make some sense for him to lie to the effect that I was compelled by desire to behave somewhat more foolishly than usual. As it stands, the boy would not even talk to him, but hated him more than anyone in the world, while it was with me that he was

chapter |1 pages

actually staying. [32] So which of you finds it credible that, when I had earlier made a voyage away from the city taking the boy with me, to avoid fighting with Simon, once I arrived back I took him to Simon’s house, where I was likely to have the most trouble? [33] And when scheming against him did I come so ill-prepared that I had summoned neither friends nor servants nor any other person, except for this child, who could not have helped me, but would be able to disclose under torture any offence I committed? [34] Was I so stupid that when scheming against Simon, instead of watching for an opportunity to catch him alone, at night or in daylight, I went to the very place where I was sure to be seen by the largest number of people and beaten up, as though my intent was against myself, to ensure that I received the maximum humiliation from my enemies? [35] Furthermore, Council, you can easily tell from the fight which took place that he is lying. Once the boy realized what was happening, he threw off his robe and took to flight, and these people followed him, while I went off by another route. [36] But who should one hold responsible for what happened, the ones who ran away or the ones who tried to catch them? I think it’s obvious to all that people who fear for their safety flee and people who wish to cause harm pursue. [37] And it’s not the case that though this is the probability what actually happened was different. They seized the lad on the street and were dragging him off by force; I came along, and I did not touch them but took hold of the boy, while they were dragging him off by force and beating me. This has been attested for you by those who were present. So it is intolerable if it is to be believed that I am guilty of intent in matters where these people have in reality behaved in such an appalling and lawless way. [38] Whatever would have happened to me, if the reverse of this had happened, if accompanied by many of my friends I had met Simon, fought with him and beaten him, then pursued him and having caught him I tried to drag him off by force, if as it is when he has behaved like this I find myself facing a trial of such seriousness, in which I stand to lose my fatherland and all my possessions? [39] The most important and clearest indication is this. The man who has been wronged and schemed against by me, as he claims, could not bring himself to bring a charge before you for four years. Other people, when they are in love and are robbed of the object of desire and are beaten up, grow angry and attempt to take revenge at once, while this man does it ages afterwards.

chapter |1 pages

[40] I think, Council, that I have given adequate proof that I am not to blame for what happened. But my attitude to quarrels over matters like this is such that, though I have suffered a great many other outrages from Simon and had my head split open by him, I could not bring myself to take legal action against him. I thought it preposterous that just because we had been in competition with each other for a lover one should try to have people exiled from their homeland. [41] Then again, I did not think that intent applied to a wound unless the person inflicting it wanted to kill. For who is so foolish as to spend a long time planning to wound one of his enemies? [42] Clearly our legislators did not see fit, just because people happened to injure each other’s heads in a fight, to punish them with exile from their fatherland. In that case they would have exiled a good many people. No, it was for those who having planned to kill people wounded them and failed to kill that they made the penalties so severe. They believed that they should be punished for acts which were planned and intended; if they failed, the deed had still been done as far as their action was concerned. [43] This is a decision you have often reached before now in the matter of intent. For it would be bizarre if, whenever people received a wound as a result of drunken rivalry or horseplay or an insult or a fight over a mistress, for incidents which everyone regrets when they come to their senses, you are to make the penalties so severe and awful that you exile some of the citizen body from their homeland. [44] One thing especially amazes me about his character. I don’t think that the same nature is capable of both love and malicious litigation; the former belongs to simpler souls, the latter to the most unscrupulous. I wish it was possible for me to give proof of this man’s criminality in your court from the rest of his conduct, so that you would realize that it would be far more just for him to be on trial for his life than to place others in danger of losing their homeland. [45] Most of it I shall omit. But I shall mention a fact which you should hear and which will be an indication of his audacity and impudence. In Corinth, after arriving too late for the battle against the enemy and the expedition to Koroneia, he fought with Laches the taxiarch and struck him; and though the whole citizen body took part in the expedition, he was deemed thoroughly undisciplined and wicked and alone of the Athenians he was formally dismissed by the generals. [46] There are many other tales I could tell about him, but since it is not

chapter |1 pages

allowable in your court to speak outside the main issue, please bear this in mind. It was they who entered our home by force; they who pursued; they who tried to drag us by force off the street. [47] Remember this and vote for what is just. Do not allow me to be exiled unjustly from my fatherland, for which I have faced many dangers and performed many public services; I have never been responsible for any harm to it, nor has any of my ancestors, but for much benefit. [48] So in justice I should be pitied by you and other men, not only if any of the things Simon wants were to happen to me but also because I have been forced as a result of events like this to face a trial of this nature. The case arises out of a dispute between two rivals for the affections of a youth named Theodotos. The dispute obviously has a long history. The speaker (§5) traces it back to vindictive jealousy on Simon’s part because the boy preferred the speaker’s kindness to Simon’s abusive treatment. Simon for his part appears to be arguing (§22) that he had a sexual contract with the boy and that the speaker induced the boy to breach this arrangement. The speaker’s evasiveness on the subject suggests that Simon may be telling the truth on this point. The rivalry has erupted into violence, and Simon is prosecuting the speaker for allegedly wounding him. The speaker claims that Simon laid an ambush for the boy and that the speaker and the boy were innocent victims. Simon claims that the speaker came to his house and threatened to kill him. The case for the defence relies heavily on a tapestry of contrasting characterization woven by Lysias. Noteworthy is the use of the preliminary narrative in §§5–10, tracing the prehistory of the dispute, to create a vivid impression of Simon in preparation for the main narrative. Simon emerges as consistently drunken, violent and lawless. In contrast, the speaker is a mild-mannered individual, painfully embarrassed at the strength of his passion, unbecoming in a man of his years, and eager to avoid trouble at all costs. As in Lysias 1 (Case I), the characterization effects an implicit argument: could a man as retiring as the speaker be an aggressor, and could a man as violent as Simon be an innocent victim of aggression? So powerful is this contrast that it is only on reflection that we notice that the speaker is our sole source for this characterization. The speaker also, by emphasizing that similar quarrels have taken place before and stressing the triviality of the cause, and by presenting the fight in question as a confused and slightly comic affair, seeks to present the incident as a petty squabble unworthy of the attention of the Areopagos.

chapter |1 pages

In the same vein he presses the definition of trauma as attempted murder (§§41–3), a charge which in the seriousness both of allegation and punishment is disproportionate to the activity which engendered it. In the process he distorts the legal position on wounding with intent. He treats intent as though it necessarily involved premeditation in the fullest sense. In fact, the presentation of wounding, both in Dem. 54.18–19 (Case VI) and [Dem.] 40.32 (not in this collection), as arising out of an escalating quarrel would suggest that intentional wounding was treated as attempted homicide even if it occurred in the heat of the moment. Is the speaker guilty? We may reasonably accept that witness testimony supports the claim that Simon and his gang pursued the boy through the streets. Clearly Simon is no innocent victim of violence. But there are two features of the defence which leave one dissatisfied (in the study, though possibly not in the lawcourt on the day). Instead of arguing bluntly that he at no time wounded him, the speaker is content to give us a blurred impression of a confused street fight in which everyone received some injury (§18). In view of this evasion it is difficult to resist the conclusion that Simon was actually injured (how seriously it is impossible to guess). The other suspicious feature is the presence of the speaker and the boy in the vicinity of Simon’s house on the day in question. If the retiring personality he projects is real, it is surprising to see him taking such a risk. This lends some support to Simon’s version. The interval between alleged offence and prosecution suggests that Simon has been waiting for an opportunity for revenge. Little detail emerges about Theodotos, the cause of the quarrel, in all this; the mention of the possibility of his being questioned under torture (§33) suggests that he may have been a slave. This text is also interesting for the light it casts on Athenian attitudes to homosexuality. It was common for grown males to form erotic relationships with pubescent youths (as in the present case), and this is the normal expectation for homoerotic relationships. Although by no means all Athenian writers approve of the practice, there is a broad acceptance that such desires are normal, as can be seen from the fact that the speaker’s embarrassment at the opening concerns the strength of his passion, its unseemliness for one of his age, and the situations into which it drew him, rather than the gender of the love object. Likewise, at §43 he sets his quarrel on the same level as fights over mistresses (hetairai, courtesans slave or free). Attitudes to, and the etiquette of,

chapter |1 pages

homosexuality are however complex, and the reader interested in pursuing the issue further will find an admirable discussion in K.J. Dover, Greek Homosexuality (London 1978). CASE VI: DEMOSTHENES 54 – AGAINST KONON FOR BATTERY We have here a private action for battery (aikeias dike). A young man named Ariston claims to have been the victim of an unprovoked attack by a middle-aged man named Konon. Although he has brought a private case, Ariston notes that he could have brought a public action for outrage (graphe hybreos). The nature of these actions is discussed in the brief essay at the end of the speech. Both plaintiff and defendant appear to be people of substance, to judge by both the reference to public services (leitourgiai) at the close and the fact that Konon’s associates (§7) include Spintharos, whose father Euboulos was one of the most successful politicians in fourth-century Athens. The date of the action can be fixed by the reference in §3 to garrison duty at Panakton two years before the trial. Demosthenes speaks at 19.326 of an expedition to Panakton in 343, and tells us that during the Sacred War (355–346) no such expedition had been necessary. It is far from clear that the expedition mentioned in Dem. 19 and the guard duty mentioned here are the same kind of operation; nor can we exclude the possibility that Demosthenes is exaggerating. But the evidence such as it is would suggest a date of 357 or 343 for the incidents narrated and 355 or 341 for the hearing. It is difficult to choose with confidence. The association of Konon with the son of Euboulos, whose faction Demosthenes was attacking by the late 350s on the ground of its failure to check the rising power of Macedon, suggests that Demosthenes may have accepted the case from political motives. Unfortunately, even if true, this conjecture does not help for dating, since Demosthenes was still struggling (though more successfully) with this faction in the late 340s. However, since by 341 Demosthenes was one of the leading political figures, he is less likely to have needed, or to have been free, to take on a speechwriting brief. So a date in the 350s seems marginally more likely. [1] I was outrageously assaulted by this Konon, judges, and placed in such a serious condition that for a long time neither my family nor any of the doctors

chapter |1 pages

expected me to pull through. So having recovered my health and survived against expectation I have brought this suit for battery against him. Though all the friends and relatives whom I consulted declared that his acts rendered him liable to summary arrest as a mugger and indictment for outrage, they advised and encouraged me not to take on a task beyond my abilities nor to be seen bringing a complaint beyond my years for the injuries I suffered. So this is what I have done, and under their influence I have brought a private suit, though I would prefer most of all, men of Athens, to bring him to trial on a capital charge. [2] This you will all understand, I am sure, when you hear what I have suffered. Though the outrage committed then was terrible, the defendant’s appalling conduct since then has been every bit as bad. I urge and beg all of you alike, firstly to give a favourable hearing to my account of my sufferings and secondly, if you think I have been wronged and treated unlawfully, to help me as justice demands. I shall give you a full and detailed account of events as briefly as I can. [3] Two years ago I went out to Panakton, when we were assigned to garrison duty. The sons of Konon here had a tent near us, though I wish they hadn’t. For that was the origin of the hostility and clashes between us. I shall tell you how it came about. These people used to spend the whole day drinking, beginning immediately after the midday meal, and they continued to do this all the time we were on garrison duty. As for us, we behaved outside the city exactly as we used to do here. [4] So when the time came for the rest to have dinner, they were already engaged in drunken games. Most of it they directed at our servants, but finally against us personally. They claimed our servants annoyed them with the smoke when they were preparing food and took every remark as an insult. So they beat them, emptied their chamberpots over them, and urinated on them; there was no kind of disgraceful or outrageous act which they omitted. Though we saw all this and were vexed, initially we remonstrated with them; but when they mocked us and refused to stop, we went and told the whole story to the general, all of my mess together, not myself alone. [5] Though he abused them roundly and reproached them, not only for their disgraceful treatment of us but also for their entire conduct in the camp, so far from desisting or feeling ashamed, as soon as it grew dark they immediately rushed into our tent that evening; they began by insulting us but finally threw some punches at me. And they raised such a noisy uproar around the tent that the

chapter |1 pages

general and the taxiarchs came with some of the other soldiers; it was these who prevented us from suffering some irreparable injury, or indeed inflicting it in response to the drunken violence of these people. [6] Now that the matter had gone so far, when we returned here, as one would expect, there was anger and hostility between us. But good heavens, I did not think it necessary to sue them or to make an issue of any of the events; no, I simply decided for the future to be careful and avoid them and to have no dealings with people of that sort. First of all, I wish to provide the depositions relating to the statements I have made, and then to show you the treatment I have received from Konon himself; then you will realize that the very man who should have criticized the original offences has himself taken the lead in committing far more serious crimes. Depositions [7] These are the events I chose to ignore. Not long afterwards I was walking in the agora one evening, as was my habit, together with Phanostratos of Kephisia, one of my contemporaries, when this man’s son Ktesias came up, drunk, in the vicinity of the Leokorion, near Pythodoros’ premises. On catching sight of us he shouted out, and after talking to himself as a drunk would, so that one could not catch what he was saying, he went off up to Melite. It turns out they were drinking there (as we learned later) at Pamphilos the fuller’s place, Konon here, a man named Diotimos, Archebiades, Spintharos son of Euboulos, Theogenes son of Andromenes, and many others. All these Ktesias roused up and set off to the agora. [8] As it happened, we were returning from the shrine of Persephone and were once more walking roughly opposite the Leokorion, when we encountered them. When we closed with them, one of them (someone unknown to me) fell upon Phanostratos and held him down, while Konon here, his son and the son of Andromenes attacked me and to begin with stripped me and then tripped me up and knocked me down into the mud; and they reduced me to such a state, by jumping on me and outrageously assaulting me, that they split my lip and closed up my eyes. They left me in such a poor condition that I could neither stand up nor speak. And as I lay there I heard them saying many dreadful things. [9] Much of it is abusive and I should hesitate to repeat

chapter |1 pages

some things in your court; but one thing which is evidence of his arrogance and an indication that he was the leader in the whole business I shall tell you. He crowed in imitation of victorious cocks, and the rest urged him to flap his elbows against his sides by way of wings. After this I was carried home, unclothed, by passers-by; these people had gone off taking my robe with them. When I reached my door, there was shouting and yelling from my mother and her serving-girls, and with an effort I was eventually carried off to a bathhouse, where I was washed and shown to the doctors. To prove the truth of these statements, I shall provide you with witnesses to the facts. Witnesses [10] As it happened, judges, Euxitheos of Cholleidai here, a relative of mine, and with him Meidias, who were coming back from dinner, came upon me when I was already near my home; they accompanied me as I was carried to the bath and were there when the doctor was brought. I was in such a weak condition that, to avoid my being carried the long distance home from the bath, those present decided to take me to Meidias’ house for that night, and they did so. So then, take the depositions of these people also, so you will know that there are many people who know the sort of outrage I was subjected to by these men. Depositions Now take also the doctor’s deposition. Deposition [11] At that point then my immediate condition from the blows I received and the outrage I suffered was such as you hear and all the people who saw me right then have testified to you. But subsequently the doctor said that he was not overly concerned for the swellings on my face and the cuts, but I was subject to persistent bouts of fever and severe and violent pains, especially of the sides and the pit of the stomach, and I was incapable of eating. [12] And according to the doctor, but for the fact that a very substantial spontaneous

chapter |1 pages

evacuation of blood occurred at a time when I was in great pain and already despaired of, I might even have died from suppuration. As it was, it was this that saved me, the evacuation of blood. To prove that in this too I am telling the truth, and that I was subjected to illness such as to reduce me to a desperate condition, as a result of the blows I received from these men, read the doctor’s deposition and that of the people who visited me. Depositions [13] So the fact that the blows I received were not slight or insignificant but that I found myself in extreme danger because of the outrageous behaviour and the violence of these people, and so the action I have brought is far less serious than they deserve, this has I think been made clear to you on many counts. And I imagine that some of you are wondering what on earth Konon will dare to say in reply to this. Now I want to warn you about the argument I am informed he has contrived; he will attempt to divert the issue away from the outrage of what was done and reduce it to laughter and ridicule. [14] And he will say that there are many individuals in the city, the sons of decent men, who in the playful manner of young people have given themselves titles, and they call some ‘Ithyphallics’, others ‘Down-and-outs’; that some of them love courtesans and have often suffered and inflicted blows over a courtesan, and that this is the way of young people. As for my brothers and myself, he will misrepresent all of us as drunken and violent but also as unreasonable and vindictive. [15] Personally, judges, though I have been angered by the treatment I have received, my indignation and feeling of having been outraged would be no less, if I may say so, if these statements about us by Konon here are regarded as the truth and your ignorance is such that each man is taken for whatever he claims or his neighbour alleges him to be, and decent men get no benefit at all from their normal life and habits. [16] We have not been seen either drunk or behaving violently by anyone in the world, nor do we think we are behaving unreasonably if we demand to receive satisfaction under the laws for the wrongs done to us. We agree that his sons are ‘Ithyphallics’ and ‘Down-and-outs’, and I for my part pray to the gods that this and all else of the sort may recoil upon Konon and his sons. [17] For these are the men who initiate each other into the rites of Ithyphallos and commit the sort of acts which decent people find it deeply shameful even to speak of, let alone do.

chapter |1 pages

But what’s all this to me? I am amazed if any excuse or pretext has been discovered for use in your court to enable a man, if he is proved guilty of outrage and inflicting blows, to escape punishment. For the laws, quite the reverse, have provided even for pleas of necessity and sought to prevent them from turning into something more serious. For instance – I’ve had to find out and research this subject because of this man – there are suits for slander; [18] it’s said that these take place so that people will not be led on to beat each other when insulted. Then again, there are suits for battery; I’m told that these exist to prevent anyone, when he is getting the worst of it, from retaliating with a stone or any other object of the sort, but to ensure that he waits for legal satisfaction. Again there are indictments for wounding to prevent murder from occurring when people are wounded. [19] The least significant, I think, the action for slander, has been provided for to avoid the ultimate and most serious offence, to ensure that murder will not be committed or people led on by degrees from slander to blows and from blows to wounds and from wounds to killing, but there should be an action for each of these acts laid down in the laws so that they are not judged by individual anger of whim. [20] So this is what is in the laws. And if Konon says: ‘We’re a band of Ithyphallics, and in our love affairs we beat and strangle whoever we choose’, will you laugh and let him off? I don’t think so. None of you would have been seized with laughter, if he had chanced to be there when I was being attacked and stripped and outraged, when after going out in full health I was carried home, and my mother rushed out, and there was so much yelling and shouting at our house from the women, like that for a dead man, that some of the neighbours sent to our house to ask what had happened. [21] As a general rule, judges, in justice there should be no excuse or indemnity for anyone in your court such as to allow a man to commit outrage. But if it is open to anyone, it is proper that recourse to arguments of this sort should be reserved for people who commit any such act through youth, and in their case not to prevent them from being punished but so they face a lighter punishment than they should. [22] But when a man over fifty years old, and in the company of younger men, his sons at that, not only failed to dissuade or prevent them but has himself been ringleader and instigator and the vilest of all, what punishment could he suffer which would be adequate for his actions? In my opinion, not even death. Even if he had carried out none of the acts but had stood by while his son Ktesias committed the acts which Konon clearly

chapter |1 pages

has done, you would be right to hate him. [23] For if he has brought up his sons in such a way that they feel neither fear nor shame to commit offences in his presence, offences at that which in some cases carry the death penalty, what punishment in your view could not reasonably be inflicted on him? For myself, I think that this is evidence that he did not respect his own father either; for if Konon personally had honoured and feared his own father, he would have demanded that his sons too honour and fear him. [24] Please take these laws too, the law dealing with outrage and the one about clothes-stealers. For you will see that they are liable under both. Read it. Laws Konon’s actions render him liable under both laws; he committed both outrage and clothes-stealing. And if we have chosen not to sue under these laws, though we would rightly be recognized as peaceful and reasonable, he is a criminal all the same. [25] Indeed, if anything had happened to me, he would have faced a charge of murder and the most terrible punishment. At any rate, in the case of the father of the priestess at Brauron, though it was agreed that he did not touch the dead man, the Council of the Areopagos exiled him because he urged on the man who struck the blow. And rightly so; for if bystanders instead of checking people attempting a wrongful act through wine or anger or any other cause actually incite them, there is no hope of escape for anyone who falls into the hands of men of violence, and it will be his lot to suffer outrageous treatment until they give up. And this is what happened to me. [26] Now I want to tell you what they did when the arbitration took place. This too will show you their recklessness. They prolonged the time beyond midnight by refusing either to read out the depositions or to hand over copies and just taking our supporters one by one to the stone and making them take an oath, and drafting utterly irrelevant depositions, to the effect that this was his son by a mistress and that he had been treated in this way or that, behaviour which roused the disapproval and disgust of every person present, including finally their own. [27] Anyway, when they tired and had had enough of this conduct, they issued a challenge aimed at causing delay and preventing the sealing of the

chapter |1 pages

jars, to the effect that they were willing to hand over for questioning about the assault some slaves whose names they wrote down. And now I think that much of their speech will be on this subject. But in my opinion what you should bear in mind is that, if the purpose of their challenge was for the torture to take place and they had confidence in the justice of this point, they would not have issued the challenge when the decision was on the point of being made, at night, when they had no excuse left; [28] but at the start before the suit was lodged, when I was in bed ill, not knowing whether I would survive, and was telling all my visitors the identity of the man who struck me first and carried out most of the outrage inflicted on me, that was the time when he would have come at once to my house with many witnesses, that was the time when he would have offered to hand over the servants and invited members of the Areopagos along. For if I had died, they were the ones who would have tried the case. [29] If he was ignorant of all this, and if (as he claims now) though he had a valid argument to offer in this he made no preparations when facing a danger of this magnitude, at least when I was back on my feet and had summoned him, he would have shown himself willing to hand over the slaves at the first meeting before the arbitrator. He has done none of this. To prove that I am telling the truth and that the challenge was issued to cause delay, read out this deposition. This will make it clear. Deposition [30] Now on the subject of the challenge you should remember this, the time when he made the challenge, his evasive purpose in doing this, and the initial periods during which he has shown no desire to have this argument to support him, nor issued a challenge nor made any demand. So when all the facts were proved before the arbitrator as is happening now, and it was clearly demonstrated that he was guilty of the charges, [31] he entered a lying testimony and named as witnesses people whom I think you too will not fail to recognize, if you hear them: ‘Diotimos son of Diotimos of Ikaria, Archebiades son of Demoteles of Halai, Chairetios son of Chairimenes of Pithe, testify that they were coming away from dinner with Konon and came upon Ariston and Konon’s son fighting in the agora, and Konon did not strike Ariston.’ [32] As if you would immediately trust them and would not work out the truth, that to start with neither Lysistratos nor Paseas nor Nikeratos nor Diodoros, who have explicitly attested that they saw me being beaten by Konon and stripped

chapter |1 pages

of my robe and subjected to all the other outrageous treatment I received, would have been willing to give false testimony, as people unknown to me who turned up at the incident by chance, if they did not see me in this condition. Again, I myself would never, if I had not suffered this treatment at Konon’s hands, have let off the men who on the admission of my opponents themselves beat me and elected to take action first against the one who never even touched me. [33] Why should I? No, the man who was the first to strike me and from whom I suffered the greatest outrage is the man I am suing, the one I hate and prosecute. All of my claims are as you see true and patently so. But in his case, if he had not offered these witnesses he would have had no argument at all but would have found himself convicted in silence. But as drinking companions of his and partners in many acts of this sort they have naturally given false testimony. If it’s to be this way, if people once abandon all shame and dare to give blatantly false testimony, and the truth brings no benefit, it will be intolerable. [34] Oh, but they’re not that sort of people. Yet many of you, so I believe, know Diotimos, Archebiades and Chairetios, the grey-haired man here, who in daylight assume a grim expression and claim to play the Spartan and wear short cloaks and thin shoes, but when they gather together and are in each other’s company, leave no manner of evil or shameful deed undone. [35] And this is their splendid and spirited attitude: ‘What, not give evidence for each other? Isn’t this what confederates and friends do? What in the evidence he will bring against you is really to be feared? Some people say they saw him being beaten? We shall testify that he was never even touched. That he was stripped of his robe? We shall testify that they did this first. That his lip had to be stitched? We shall say your head was or some other part was fractured.’ [36] But we actually provide the testimony of doctors. This is something they don’t have, judges. Except for their own testimony, they will have no witness to offer against us. By the gods, I could not tell you the extent and nature of their readiness to commit any act in the world. But so you will know the sort of acts they go round committing, read out to them these depositions, and you, stop the water. Depositions [37] So then, when they break into houses and beat up people they meet, do you think they would scruple to give false testimony on a scrap of paper,

chapter |1 pages

men who have participated in viciousness, wickedness, unscrupulousness and outrage of this magnitude and kind? For in my opinion at least all these qualities are found in the acts they commit. Yet there are other acts still more terrible committed by these men, but we should find it impossible to find all the victims. [38] Now as to the most unprincipled thing I hear he intends to do, I think it better if I warn you. They say he intends to bring his children to the stand and swear on them, and to invoke dread and severe curses of a sort that someone who heard them announced them to us in amazement. Reckless acts of this sort are impossible to counter, judges. For the most decent people who would be least likely to tell any lie themselves are most easily deceived by such things. Nonetheless, one must base one’s trust on a consideration of a man’s life and character. [39] I shall tell you the contempt he feels for such concerns; I have been forced to discover it. I am informed, judges, that a certain Bakchios, who was condemned to death in your court, and Aristokrates, the man with bad eyes, and others of that sort including Konon here were comrades as young men and had the name ‘Triballians’; and they used regularly to collect the offerings to Hekate and the testicles of the pigs used for purification before meetings and feast together, and to swear oaths and break them more casually than anything in the world. [40] So Konon, a man such as I describe, is not to be trusted on oath, not remotely, but the man who would not swear even an honest oath, and would not even dream of swearing on his children but would rather suffer anything in the world, and if he has to swears as custom dictates, is more deserving of trust than the one who swears by his children and is ready to go through fire. And I, who would more rightly be believed than you in every respect, Konon, was ready to swear this oath, not out of a readiness to do anything to escape punishment for wrongs I have done, as in your case, but for the sake of the truth and to avoid suffering additional outrage, since I had no intention of letting the case be lost by a false oath. Read out the challenge. Challenge [41] This is the oath I offered to swear, and I swear now by all the gods and goddesses, for your sake, judges, and that of the bystanders, that it is because I suffered at Konon’s hands the acts for which I am now suing, and was beaten

chapter |1 pages

and had my lip split to the extent that it had to be stitched and I was outrageously assaulted that I am bringing this action. And if my oath is honest, may much good befall me and may I never again suffer anything of the sort, while if my oath is false, may I myself perish utterly, and anything that is mine now or in the future. But my oath is not false, even if Konon says so till he bursts. [42] So I urge you, judges, now that I have proved my case in full justice, and have given you a pledge in addition, that just as each of you would personally hate the perpetrator if he had suffered this, he should feel the same anger against Konon here on my behalf, and not regard as a private matter any such thing which might perhaps befall anyone. Whoever it befalls, you should give aid and grant justice, and hate people who in the face of their crimes are bold and impetuous and when put on trial are shameless and wicked and care nothing for custom or anything else in their efforts to escape punishment. [43] But Konon will beg and weep. Now consider: who deserves more pity, the man who suffers what I have suffered at his hands, if I leave the court as a victim of further outrage, deprived of justice, or Konon, if he is punished? Is it more advantageous for each of you that people should be free to commit assault and outrage or not? I think not. Now if you acquit, there will be more of these people, but if you convict, there will be less. [44] There is much I could say, judges, to show we have been useful citizens, both ourselves and our father during his life, serving as trierarchs and soldiers and doing our duty, and that neither Konon nor any of his family have been of use. But there is not sufficient time, and the case is not about these matters. Indeed, if in reality we were on our own admission even more useless and criminal than these people, we do not, I think, deserve to be beaten or subjected to outrage. I don’t know that I need say more. I think you understand all that has been said. If no weapon was used, the victim of a violent assault had (in some circumstances at least) two options available, the private action for battery (dike aikeias) or the public action for outrage (graphe hybreos). Debate continues over the precise definition of hybris as a legal term. Although there is a widespread impression that hybris is primarily a religious term (denoting the

chapter |1 pages

pride which makes a mortal forget his place in the order of things), the word is most often used of dealings between human beings. It generally describes behaviour which is uncontrolled and which presupposes a desire to humiliate or at least a contempt for the rights and prestige of others. It could be applied to anything from mockery through verbal insult to physical assault, including rape. However, in law the term was narrower. The law on hybris quoted at Dem. 21.47 appears to cover action, not words. It is likely, moreover, that in legal contexts at least, though the law was imprecise (it appears to have begun: ‘if anyone commits outrage [hybris] against someone . . .’), the offence was generally understood to cover physical violence. It is not clear what converted aikeia into hybris, but it may be suggested that where the speaker could argue that the assault was committed either with the intention of humiliating or with wilful disregard for the status of the victim then the action for outrage might succeed. In the present case the action of Konon in imitating a victorious fighting cock after beating Ariston could be held to prove either. In explaining his reasons for choosing the private action, Ariston naturally places the emphasis on modesty (a public action would require more boldness and greater legal experience than a young man should in this culture possess) and restraint. In the process he suppresses other motives. As was explained in the general introduction, the prosecutor in a public action faced serious penalties if lie either dropped the case or failed to obtain 20 per cent of the judges’ votes. In addition, since on most reconstructions hybris involved the state of mind or intention of the perpetrator it would be more difficult to prove than aikeia, for which the fact of striking first sufficed. Finally, if Konon were convicted in a public action for hybris any fine would go to the state, while the victor in a private action for aikeia stood to gain compensation. The case against Konon is presented with remarkable force, and one’s first impression is that Ariston’s case is overwhelming. As to the assault itself, Ariston has good evidence from a doctor that he was severely beaten. That Konon was actually the perpetrator is suggested by Konon’s behaviour at arbitration (for which Ariston has witness testimony); evidently Konon had difficulty assembling a case, and it appears that it was only when his situation was looking desperate that his associates gave evidence on his behalf. However, it is far from clear that the witnesses who carried Ariston home actually saw the attack; they may merely have found him lying beaten. It may be that the only witness on Ariston’s side was his friend Phanostratos. From §§30–3 one

chapter |1 pages

has the impression that the deposition from Konon’s friends attesting that Konon did not strike Ariston swung the arbitration hearing in Konon’s favour, which suggests that, guilty or not, he had numerically superior testimony. Konon intends to argue that he came upon his son Ktesias fighting in the agora, and that instead of the life-threatening attack described by Ariston it was merely a fight between members of rival gangs. He may also be arguing (§26) that Ariston had in some way mistreated Konon, though this is far from clear. Ariston also claims that Konon intends to swear on the life of his sons (§38). The logographer’s response to this is devastating. Konon’s claim that Ariston and Ktesias are members of rival gangs is twisted into an admission that Konon is a member of such a gang. The attempt to make light of the incident is met with an insistence on its seriousness. The issue of gangs recurs in Ariston’s response to Konon’s proposed oath. The oath in question is far from unique. But Ariston presents it as unusual, and he undermines its effect further by representing Konon as belonging in his youth to a gang which (in a manner attested elsewhere among the smart young men of Athens in and after the age of the sophists) engaged in systematic affronts to religious sentiment; an oath from such a man is worthless. Above and beyond all this, characterization is used to great effect. As with Lys. 3 (Case V), which may have been Demosthenes’ model, we are given a preliminary narrative ostensibly providing necessary background information but in fact presenting a characterization of the family of Konon (not, it should be noted, Konon himself) which both supports the main narrative (by offering a corroborative parallel) and predisposes the hearer towards the speaker’s side on the main issue. The wilful and drunken violence attested there is of a piece with the alleged behaviour of Konon and his son on the night in question. In contrast, from his restrained opening, full of the modesty with the Athenians expected of youth, through to the end Ariston emerges as a moderate and decent young man. In fact, of course, Ariston is our only source for this view of him, both in camp and in general. If Konon did assault Ariston, why did he do it? Ariston’s account looks at first sight compelling. But in order to mount the attack on Ariston, Ktesias had to undertake a long walk from the agora up to Melite, and Konon had to return with him along the same route, not knowing whether Ariston would still be in the agora or not. This is of course entirely possible, but the behaviour

chapter |1 pages

of Konon and Ktesias makes more sense if Ariston on his first encounter with Ktesias had done or said something (he and Phanostratos outnum bered Ktesias) to provoke the attack. Ariston may not be quite the innocent he would have us believe. There may be some truth in Konon’s presentation of Ariston and Ktesias as members of rival gangs. CASE VII: ISOKRATES 20 – AGAINST LOCHITES The present case concerns an alleged assault. As in Dem. 54 (Case VI) we have here the private action (dike aikeias); this is clear both from the opening, where the emphasis on the first to strike reflects the definition of the offence in the wording of the law, and the reference in §19 to what appears to be assessment of damages to be paid to the victim, which suggests the private suit. If this is a real speech, and not a rhetorical exercise in argumentation, it is incomplete; what survives is the proof section, the narrative being omitted. The speech postdates the restoration of the democracy. The rhetorical use made of experiences under the Thirty suggests that events are relatively recent; but memories were long; Aischines (2.78, not in this volume) could still capitalize on his father’s loyalty to the democratic cause sixty years after the restoration. . . . [1] The fact that Lochites struck me, and was the one who began the violence, has been attested to you by all who were present. You should not regard this offence as on a par with others, nor should the penalties for crimes against the person and those against property be the same. For you know that physical safety is of personal concern to all mankind and that it is with this end in view that we have made our laws, we fight for freedom, desire democracy, and carry out all the other activities in our lives. So it is reasonable for you to impose the most severe penalty on people who commit offences in an area which you consider of the utmost importance. [2] You will find that our lawmakers also took physical safety especially seriously. First of all, this is the only offence for which they made both private and public actions exempt from the court deposit, so that each of us would be able to secure the punishment of wrongdoers to the best of his ability and according to his wish. Secondly, in the case of other suits the offender is liable to prosecution only by the victim in person, while in the matter of outrage, because the act is of public concern, it is open to any citizen to enter an

chapter |1 pages

indictment with the Thesmothetai and come into your court. [3] So intolerable did they find the prospect of people striking each other that they even passed the law on slander, which orders those who use any of the prohibited insults to pay a penalty of five hundred drachmas. How severe then should the penalties be on behalf of people who have suffered physical mistreatment, when your anger for the sake of those who have merely experienced verbal insult is evidently so great? [4] It will be amazing if you consider the people who were guilty of outrages under the oligarchy deserving of death but let off people who commit the same offences as they did under democracy. Rather the latter should in justice suffer a more severe punishment. For they are displaying their criminality more blatantly. If someone has the audacity to offend now, when it is not allowed, whatever would he have done when the people in control of the city were actually grateful to people who committed crimes of this sort? [5] Perhaps Lochites will try to make light of the issue, ridiculing the charge and claiming that I suffered no injury from the blows and my arguments are more serious than the events merit. However, for my part, if his actions contained no element of outrage, I should never have come to court. As it is, I have come here to obtain satisfaction not for the general injury sustained from the blows but for the insult and the dishonour. [6] These are the things which should stir the greatest anger in free men and should receive the heaviest punishment. And I see that you, when you convict anyone for sacrilege or theft, do not base your assessment on the magnitude of the theft but condemn all to death alike and believe that people who attempt such crimes should receive the same punishment. [7] You should adopt the same attitude toward people guilty of outrage and consider not whether the injury they inflicted was not severe but whether they broke the law, and punish them not merely for what actually happened but for their character as a whole. [8] You should bear in mind that often before now trivial causes have been the cause of great misfortunes, and in the past some individuals have been driven to such anger by people who dared to strike them that wounds, deaths, exiles and the gravest disasters have resulted. The fact that none of this has happened is not due to the defendant; no, as far as his actions are concerned it has all come about, and it is due to chance and my character that no irreparable calamity has occurred. [9] I think that the way for you to experience the anger which the issue

chapter |1 pages

warrants would be to consider in your minds how far this offence exceeds the rest in seriousness. You will find that all other crimes harm a part of one’s life, while outrage ruins the whole of one’s affairs, that many households have been destroyed by it and many states devastated. [10] Why waste time speaking of the misfortunes of others? We ourselves have seen the democracy overthrown twice and been robbed of our freedom twice, not by people guilty of other kinds of criminality but by people who despised the laws and were willing to be the enemy’s slaves and subject the citizens to wilful violence. [11] And the defendant is one of them. Even if he is too young to be part of the constitution in place then, still his character belongs to that regime. It was natures such as his which handed our power to the enemy, knocked down the walls protecting our land, and killed fifteen hundred citizens without trial. [12] It is appropriate for you to remember those events and take vengeance not only on the ones who abused us at that time but also on those who now desire to reduce the city to that condition, and on those whom you expect to turn out evil more than on those who offended before, in so far as it is better to find a means of preventing future crimes than to punish those which have already taken place. [13] Do not wait for them to band together and seize an opportunity to offend against the whole city, but use any pretext on which they are handed over to you to take vengeance on them. Consider it a stroke of luck whenever you catch a man who has demonstrated the whole of his criminality in petty acts. [14] It would have been best of all if the wicked among mankind bore some mark to enable you to chastise them, before any of the citizen body is wronged. But since it is impossible to discover them before someone is harmed by them, at least when they are recognized everyone should hate such men and consider them public enemies. [15] Bear in mind that risks to property do not apply to the poor, but we all alike are subject to assault on our persons. So when you punish people who take money, you benefit only the rich, but when you chastise those who commit outrage, you are helping yourselves. [16] So you must take trials such as this especially seriously, and in the case of transactions in general you should assess the penalty at the amount you think the prosecutor should get, but in the case of outrage you should assess a penalty whose payment will make the defendant desist from his current excesses. [17] If then you deprive of their property people who subject citizens to wilful abuse and if you hold the view that no penalty is sufficiently severe for people whose crimes are

chapter |1 pages

against the person but whose punishments are financial, you will act in everything as befits fair judges. [18] For you will reach a sound verdict on the case before you, you will make the rest of the citizen body more disciplined, and you will make your own life safer. It is in the nature of sensible judges that in reaching a just verdict on the cases of others they simultaneously protect their own interests. [19] None of you should think it proper to reduce the assessment in view of the fact that I am a poor man and one of the masses. It is unjust to exact lesser punishments on behalf of obscure victims than for the distinguished, or to consider poor men less worthy than rich. You would be treating yourselves with disdain if you held such a view about the citizen body. [20] Furthermore, it would be absolutely intolerable, if when the city is governed democratically we were not all to receive the same treatment, if we should see fit to hold office but deprived ourselves of our rights under the laws, if we were willing to die in battle for our country but when casting a vote we were to give an advantage to men of property. [21] If you will be advised by me, you will not take such a view of yourselves, and you will not teach young men to despise the mass of citizens, or think that trials such as this are the concern of others; no, each of you will cast his vote as though he were judging his own case. For those who dare to break this law which protects your persons are wronging all alike. [22] So if you are sensible you will encourage each other and mark your own anger on Lochites, in the knowledge that all men of his sort despise the established laws but think that judgments made here have the authority of law. For my part, I have spoken on this matter to the best of my ability. But if anyone present can speak to my case, let him step up and address you. In the absence of a narrative, even a conjectural reconstruction of the events at issue is impossible. We can however evaluate the strategies of the two sides. Inevitably we learn rather less about Lochites’ line of argument, since it is not in the speaker’s interests to give space to his opponent’s case except to demolish it. The speech suggests that an important part of the defence case consists of making light of the injuries received. Since this line is taken by the speaker in Lys. 3 (Case V) and the opponent Konon in Dem. 54 (Case VI), this is evidently a standard (and potentially useful) approach, and the speaker is likely to be correct in anticipating Lochites’ arguments.

chapter |1 pages

The speaker retaliates by stressing the gravity of the offence. Two points are particularly worth noting. The first is the attempt to associate the opponent with the oligarchic coups which swept democracy aside twice in the closing years of the fifth century. Lochites himself is too young (§11) to have been politically active at the period in question, but the speaker links his attitude (of contempt for laws and for the citizen body) to that of the people who overthrew the democracy and ignored consitutional and legal restraints. His aim is to put the residual resentment against the oligarchs at the service of his prosecution of Lochites. He is also (in a manner typical of Athenian litigants) arguing that his case is not a purely private concern but is important for the city as a whole, including the judges. The second (and related) tactic of significance is his use of the concept of ‘outrage’, hybris. He has brought a private action for battery (aikeia) but he treats the assault as though he were conducting a public action for hybris. The aim is to exploit the strong emotions triggered by the concept of hybris and to present an implicit argument a fortiori (if Lochites is guilty of hybris he must be guilty on the lesser charge of aikeia).

chapter 3|7 pages

SUITS CONCERNING PROPERTY

chapter |33 pages

administration included the tail-end of the Peloponnesian War (culminating in the siege of Athens by Sparta and her allies) and the aftermath of oligarchy followed by civil war. Not all of the financial damage suffered by the orphans will have been due to Diogeiton’s fraud. The speech is exceedingly well crafted. A financial suit of this sort is by nature likely either to bore or confuse an audience. Lysias does not attempt to work through the accounts systematically but seizes a few items which exemplify Diogeiton’s dishonesty. Particular attention is paid in the narrative to the characterization of Diogeiton. Lysias presents us with a plausible villain (even where he offers no corroborative evidence) by striving for consistency in the actions narrated. Diogeiton conceals the scale of the estate as he conceals his brother’s death. He cheats on his daughter’s dowry, as he cheats his wards by cunningly transferring to them the whole cost of sacrifice (§21), funeral monument (§21) or liturgy (§24, §26) disguised as half the cost. And he persistently avoids attempts to resolve the dispute (§2, §12). But perhaps the finest touch in the speech is the use of the widow, Diogeiton’s daughter. As Todd has noted (The Shape of Athenian Law, 203), the quotation of the woman’s speech to her father allows Lysias to circumvent to some degree one of the procedural limitations of the Athenian courts, the fact that women could not appear in any capacity. Yet Diogeiton’s daughter is the only one (beside Diogeiton himself) who has personal knowledge of his depredations. The use of direct speech creates the illusion that we are actually hearing the woman herself. It also allows the speaker to achieve pronounced emotional effects while maintaining for himself the restrained personality appropriate to an individual embroiled in a dispute with kin. CASE IX: ISAIOS 3 – ON THE ESTATE OF PYRRHOS [AGAINST NIKODEMOS FOR FALSE TESTIMONY] There were in Athens two formal means of checking a legal move by an opponent. The older process, called diamartyria, consisted (as the derivation from martys, ‘witness’, suggests) of a formal affirmation of a fact which made a given action invalid. The affirmation stood, and the action in question was ruled out, unless the opponent brought an action for false testimony against the individual who made the assertion. The diamartyria declined in importance from the end of the fifth century (overtaken by the newer and more flexible paragraphe, for which see the introduction to Dem. 35 on p. 150F), and

chapter 4|23 pages

CASES CONCERNING COMMERCE

chapter |15 pages

the claim that if anything of the sort had occurred I would have brought a plea in bar of action against him, but that I should come to court with this plea and demonstrate to you both that I have done this man no wrong and that his prosecution of me is illegal. [2] If Pantainetos had suffered any of the wrongs of which he is now complaining, he would clearly have brought a suit at once during the period when our business dealings took place, since these suits are monthly and we were both in town, and when all mankind are in the habit of showing their indignation right at the moment of their wrongs rather than after a delay. Since he has suffered no wrong – as you too will (I’m sure) affirm when you hear what happened – but is plaguing me from the confidence aroused by his success in the suit against Euergos, the only course left for me is to prove in your court, judges, that I am not in any way guilty and provide witness for my statements in an attempt to save myself. [3] My request to all of you will be modest and fair: to hear me with goodwill on the issue of my barring plea and to pay attention to the whole of my case. For though many suits have taken place in the city, I think it will be found that no-one has brought a suit more shameless or more unscrupulous than the one he has dared to lodge and bring to court. I shall give you as brief an account as I am able of all our dealings from the beginning. [4] Euergos and I loaned one hundred and five mnai to Pantainetos here, judges, on the security of a processing plant among the mine workings at Maroneia and thirty slaves. Forty-five mnai of the loan were mine, while one talent belonged to Euergos. As it happened, Pantainetos owed a talent to Mnesikles of Kollytos and forty-five mnai to Phileas of Eleusis and Pleistor. [5] The individual who sold the processing plant and the slaves to us was Mnesikles (he was the one who had bought the property for Pantainetos from Telemachos, its former owner), and Pantainetos leased it from us for the interest accruing on the money, one hundred and five drachmas per month. We made a contract in which were written the terms of the lease and a right for Pantainetos to redeem the property from us within a stated time. [6] Once this had been completed in the month of Elaphebolion in the archonship of Theophilos, I sailed off to the Black Sea, while this man and Euergos were here. As to their dealings with each other while I was away, I could not say. For their versions do not agree with each other, nor does Pantainetos’ version always agree with itself. Sometimes he says he was evicted

chapter 5|53 pages

CASES CONCERNING CITIZENSHIP

chapter 6|7 pages

SLANDER

chapter |1 pages

Appendix I ATHENIAN CURRENCY

chapter |1 pages

Appendix II THE ATHENIAN CALENDAR

chapter |2 pages

SELECTED FURTHER READING