Evidence and Proof in Ancient Greece 1527574784, 9781527574786

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Evidence and Proof in Ancient Greece

Evidence and Proof in Ancient Greece Edited by

Chris Carey, Mike Edwards and Brenda Griffith-Williams

Evidence and Proof in Ancient Greece Edited by Chris Carey, Mike Edwards and Brenda Griffith-Williams This book first published 2024 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2024 by Chris Carey, Mike Edwards, Brenda Griffith-Williams and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-5275-7478-4 ISBN (13): 978-1-5275-7478-6

CONTENTS

List of Contributors .................................................................................... 1 Introduction ................................................................................................ 3 Chapter 1 .................................................................................................... 8 Prehistory and History of the Diamartyria Alberto Maffi Chapter 2 .................................................................................................. 16 Oral and Written Evidence in the Speeches of Isaeus Mike Edwards Chapter 3 .................................................................................................. 28 Dike Pseudomartyrion: A Remedy and Measure for Retrial? Eleni Volonaki Chapter 4 .................................................................................................. 40 Use and Abuse of Evidence in the Herms and Mysteries Cases Maria S. Youni Chapter 5 .................................................................................................. 55 Reshuffling the Evidence: A Reading of Demosthenes 54 Against Conon Vassilis Lentakis Chapter 6 .................................................................................................. 64 The Curious Case Against Timarchus: Rhetoric and Prejudice Kostas Kapparis Chapter 7 .................................................................................................. 79 Witness Statements in the Speeches of Aeschines: The Evidence of the Manuscript Tradition Dóra Solti and Athanasios Efstathiou

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Contents

Chapter 8 .................................................................................................. 88 “Knowing Witnesses” in Late Fifth-Century Prose Jurgen Gatt Chapter 9 ................................................................................................ 104 Calling for Witnesses: Aspects of Role Playing and Metatheatre in Aristophanes’ Frogs Andreas Fountoulakis Chapter 10 .............................................................................................. 119 Thoughts on the Socratic Oath “ȝ‫ޠ‬/Ȟ‫ ޤ‬IJާȞ țުȞĮ” Flora P. Manakidou Chapter 11 .............................................................................................. 133 The Dicast as Witness in Athenian Trials Chris Carey Chapter 12 .............................................................................................. 145 Witness Testimony in Assault Cases: Questions of Fact and Construction of Ethos Ifigeneia Giannadaki Chapter 13 .............................................................................................. 159 Witnesses, Evidence and Rhetoric in Dem. 57 Appeal Against Eubulides Kostas Apostolakis Chapter 14 .............................................................................................. 172 The Evidential Value of Religious Observance in Athenian Inheritance Disputes Brenda Griffith-Williams Chapter 15 .............................................................................................. 184 The Ultimate Evidence: Hyperides in Defence of Phryne: Notes for the New Critical Edition of the Fragments László Horváth Chapter 16 .............................................................................................. 198 Proof, Truth and Justice in the Epilogoi of Attic Forensic Speeches Christos Kremmydas

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Chapter 17 .............................................................................................. 217 Witnesses and Narratives of Displacement in Attic Drama and Oratory Adele C. Scafuro Chapter 18 .............................................................................................. 235 Oath and Torture in the “Doloneia” David Mirhady Chapter 19 .............................................................................................. 248 Witness of Virtue: The Epigraphic Evidence of the Hellenistic Honorific Decrees Antiopi Argyriou-Casmeridis Chapter 20 .............................................................................................. 260 Literature as Evidence: The Case of Herodotus Christopher Pelling Chapter 21 .............................................................................................. 277 Nachor the False Witness: The Greek Metaphrase of Aristides’ Lost Apology in the Novel of Barlaam and Josaphat and its Old French Version (Cod. Athon. Iviron 463) Emese Egedi-Kovács Bibliography ........................................................................................... 293 Indices .................................................................................................... 332

LIST OF CONTRIBUTORS

Kostas Apostolakis is Professor of Classics, University of Crete, Greece Antiopi Argyriou-Casmeridis is a Postdoctoral Researcher in the Department of Philology, National and Kapodistrian University of Athens, Greece Chris Carey is Emeritus Professor of Greek, University College London, UK Mike Edwards is Professor of Classics and Honorary Research Fellow, Royal Holloway, University of London, UK Athanasios Efstathiou is Professor of Ancient Greek Language and Literature, Ionian University, Greece Emese Egedi-Kovács is Senior Research Associate, ELTE Eötvös József Collegium (ELTE-EC), Budapest, Hungary Andreas Fountoulakis is Professor of Greek Literature and Drama, University of Crete, Greece Jurgen Gatt is Visiting Lecturer in Classics, University of Malta Ifigeneia Giannadaki is Assistant Professor of Classics and Cassas Chair in Greek Studies, University of Florida, USA Brenda Griffith-Williams is Honorary Research Associate, University College London, UK László Horváth is Associate Professor of Classics, Eötvös Loránd University (ELTE) and Director of the Eötvös József Collegium (EC), Budapest, Hungary Kostas Kapparis is Professor of Classics and Director of the Center for Greek Studies, University of Florida, USA

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List of Contributors

Christos Kremmydas is Professor of Ancient Greek History, Royal Holloway, University of London, UK Vassilis Lentakis is Professor of Ancient Greek Literature, National and Kapodistrian University of Athens, Greece Alberto Maffi was formerly Professor for Roman and Ancient Greek Law at the Bicocca-University of Milan, Italy Flora P. Manakidou is Professor of Classics, Democritus University of Thrace, Greece David Mirhady is Professor of Classics, Simon Fraser University, Canada Chris Pelling is Emeritus Regius Professor of Greek, University of Oxford, UK Adele Scafuro is Professor of Classics, Brown University, USA Dóra Solti is Tenured Assistant Professor, Eötvös Loránd University (ELTE), Budapest, Hungary Eleni Volonaki is Assistant Professor of Ancient Greek Literature, University of the Peloponnese, Greece Maria S. Youni is Professor of History of Law, Democritus University of Thrace, Greece

INTRODUCTION

The notion of proof (in the form of physical evidence, witnesses, corroborative information or logical demonstration) is fundamental to all attempts to convince. Communication of any sort, including and perhaps especially persuasion, is at heart a collaborative process, involving the active engagement of the recipient in the construction of meaning. Successful communication (minimally) requires the hearer(s) to accept the truth or at least plausibility of what is said or implied and the authority of the speaker as a source of information and/or guidance and advice. Where not already a given, i.e. where the speaker’s credibility is unknown or contested, or where the facts are uncertain or disputed, those conditions must be created by the speaker or writer, if the recipient is to be persuaded. Even in an age of polarized political positions and social media capable of creating intellectual space seemingly impenetrable to alternative points of view, there is always ultimately a need to persuade the uncommitted or to reinforce the committed. And the further the receiver is in time or space or experience from the events or information provided, the greater the need for proof. This applies to arenas both formal and informal, whether they are a polite tea-time conversation or a lively debate in a pub, formal institutional contexts such as legal hearings, academic texts in Science or the Humanities, or narrative genres such as historiography, though in general, the more formal the arena, the greater the need for proof, since reputation, social or financial status, liberty or even (in some cultures) life may rest on the reaction of the recipient(s). The modes of proof possible or required vary from culture to culture and (within a given culture) from context to context. So too does the notion of what constitutes satisfactory proof. This volume assembles a range of papers from experts in ancient Greek culture and literature to address the theme of proof from different angles. Much of the focus is on the orators, and in particular on the witness. This is perhaps unavoidable. The diversity of the means of proof available and the consequent diversity of deployment in formal public contexts, already fully theorized by the fourth century B.C., makes this a particularly challenging and rewarding area of study. And the nature of proof and the role of the witness have been subject to ongoing debate, with one influential school of thought maintaining that questions of fact, and consequently the role of witnesses and proof of fact, are peripheral to the decision-making process.

4

Introduction

But demonstration through evidence and argument and the language of proof are not peculiar to the law courts. They extend both to other oratorical forms and contexts, and to other genres, prose and verse, and accordingly several papers in the collection address other literary genres. It is common in introductions to collective volumes to emphasize the overall intellectual cohesion and intersecting complementarity of the chapters included. The cohesion of this volume resides solely in the choice of theme. There is, designedly, no governing perspective. The aim of the collection is not to tell a coherent story or to reach a synthesis, if synthesis (whether between different procedures, processes and practitioners or between competing modern approaches) were possible, but to explore some areas of interest, illustrate some of the lines of enquiry available, to shed light on the topic from different angles and to stimulate further research. The strength of the book resides in this diversity. The volume has two sections, divided on broad thematic lines:

Section A The broad theme of this section is the role played by witnesses and proof in different contexts, primarily but not exclusively the Athenian courts. The section opens with a chapter by Alberto Maffi, “Prehistory and history of the diamartyria”, which discusses the development and continuing role of the process of diamartyria against the background of modern reconstructions and argues that it was and remained a means of proof comparable with the role of the witness in the procedure of dikadden kata maityra at Gortyn. The developmental focus continues in Mike Edwards’ chapter, “Oral and written evidence in the speeches of Isaeus”, which revisits the question of the move from oral to written testimony in legal hearings. Procedure is also the subject of Eleni Volonaki’s chapter, “Dike pseudomartyrion: a remedy and measure for retrial?”, which deals with the action for false testimony. With Maria Youni, “Use and abuse of evidence in the Herms and Mysteries Cases”, we turn to case studies; her chapter discusses the procedure of menysis in gathering evidence in the Mysteries case and the visible strain placed on the legal system by the crisis. This focus continues in the chapters by Vassilis Lentakis, “Reshuffling the evidence: a reading of Demosthenes 54 Against Conon”, which explores the manipulation of the evidence both by the accuser and the defendant in Demosthenes’ speech Against Conon; and Kostas Kapparis, “The curious case Against Timarchus: rhetoric and prejudice”, which demonstrates Aeschines’ skill in conjuring a successful prosecution in the absence of solid supporting evidence.

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The speeches which survive carry titles indicating the nature of the documents presented as evidence in court. Some include what claim to be the documents themselves, though many are clearly later interpolations. The chapter by Dóra Solti and Athanasios Efstathiou, “Witness statements in the speeches of Aeschines: the evidence of the manuscript tradition”, seeks to identify the source and date of the witness statements inserted into the corpus of Aeschines. Jurgen Gatt’s chapter, ““Knowing witnesses” in late fifth-century prose”, expands the focus to examine judicial practice within a larger cultural and generic perspective. He discusses the judicial role of witnesses against the background of recent sociopolitical approaches to the phenomenon, focusing specifically on the speeches of Antiphon in comparison with other (non-forensic) fifth century textual sources. This larger generic perspective continues in Andreas Fountoulakis’ chapter. The Athenian courts make their presence felt in other Attic genres, notably comedy. In “Calling for witnesses: aspects of role playing and metatheatre in Aristophanes’ Frogs”, Fountoulakis examines Aristophanes’ parodic use of the process of calling passers-by to witness as a means of exploring the nature and limitations of theatrical fiction. Witnesses are of course not the only source of proof, in or out of court. Oaths played a prominent role in the Athenian system, as they did from our earliest Greek texts and continued to do. The section finishes with a celebrated non-judicial oath, that of Socrates, which forms the subject of Flora Manakidou’s chapter, “Thoughts on the Socratic oath: ȝȐ/ȞȒ IJઁȞ țȪȞĮ”.

Section B The broad theme of this section is identity, explored from different directions: evidence of identity, the identity of witnesses and the reasons for the choice/use of different kinds of witness or evidence, actual and metaphorical. The first chapter, by Chris Carey, “The dikast as witness in Athenian trials”, deals with a minor item in the logographer’s toolbox, the metaphorical presentation of the judges as witnesses to elements in the litigant’s case. This is followed by two papers which discuss the strategic handling of the witness testimony at the logographer’s disposal, each focused on a different kind of case: Ifigeneia Giannadaki in “Witness testimony in assault cases: questions of fact and construction of ethos” addresses the deployment of testimony in two cases of assault, Demosthenes 54 and 21, while Kostas Apostolakis in “Witnesses, evidence and rhetoric in Dem. 57 Appeal against Eubulides” examines the use of testimony to support and to sideline elements in the speaker’s case. With Brenda GriffithWilliams’ “The evidential value of religious observance in Athenian

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Introduction

inheritance disputes” the focus shifts from witness testimony to other kinds of proof. Arguments made in support of inheritance claims based on religious activity shared with the de cuius are often seen simply as emotional appeals; while not dismissing this dimension, she argues that evidence for such activity serves as a useful indicator of status, identity and relationships. László Horváth’s chapter, “The ultimate evidence: Hyperides In Defence of Phryne: notes for the new critical edition of the fragments”, addresses one of the most notorious lost speeches of fourth-century Athens; after establishing the nature of the prosecution brought against Phryne, he examines the historical basis for some of the statements and arguments attributed to Hyperides in later sources. The focus widens in Christos Kremmydas’ chapter, “Proof, truth and justice in the epilogoi of Attic forensic speeches”, from individual speeches to a broad discussion of the role played by references to “artless proofs” and references to truth and justice in the closing section of speeches written for the courts. The focus broadens still further in Adele Scafuro’s “Witnesses and narratives of displacement in Attic drama and oratory”. As noted above, courtroom practices found in the orators also influence other generic contexts. Scafuro’s chapter compares the deployment of multiple testimonies identifying individuals in recognition scenes in tragedy and New Comedy with techniques used by the orators. This focus on other genres continues in David Mirhady’s “Oath and torture in the “Doloneia””, which explores the dynamics of the encounter between Odysseus and Diomedes with Dolon in the Iliad. Mirhady finds in the incident elements of the role played by status and identity in the use of oaths and torture which we later find in forensic contexts. The focus on non-forensic sources continues in the last three chapters in the collection. The chapter by Antiopi Argyriou-Casmeridis, “Witness of virtue: the epigraphic evidence of Hellenistic honorific decrees”, addresses the practice and terminology of testifying used by envoys sent to foreign communities to inform those communities that one or more of their citizens had been publicly praised in the envoys’ community and elevated into public paradeigmata of arete. Judges in court are not the only audience who expect evidence. The historian too must convince his hearers/readers, and Chris Pelling’s chapter, “Literature as evidence: the case of Herodotus”, looks at the way in which Herodotus uses literary sources. He finds that Herodotus uses poetic sources only when more reliable conduits for the truth were unavailable, and speculates that poetry was possibly too close, with the risk that use of poetry as a source might reduce historie to a pedestrian equivalent. Finally, Emese Egedi-Kovács in “Nachor the false witness: the Greek metaphrase of Aristides’ lost Apology in the novel of

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Barlaam and Josaphat and its Old French version (Cod. Athon. Iviron 463)” again looks at the use of literary sources, in this case the use of Aristides’ Apology in the fictional saint’s biography; she also includes previously unpublished Greek and Old French versions of the apology preserved in the Iviron codex. The editors wish to thank the Department of Greek and Latin at UCL and the UCL Leventis Fund for their support. Also, Katie McHugh for her help with the indexing, and the staff at CSP for seeing the volume through to publication.

CHAPTER 1 PREHISTORY AND HISTORY OF THE DIAMARTYRIA ALBERTO MAFFI

In an article of 1927, later republished (Gernet 1955), Louis Gernet reexamined the nature and function of an institution which, in the fourth century, was used above all as a means available to the legitimate descendant to oppose the epidikasia of an inheritance by a collateral of the deceased. It is in this function that we encounter the diamartyria in orations 2, 3, 4, 5 and 6 of Isaeus and in Dem. 44, Against Leochares.1 I do not intend here to re-examine all the complicated questions related to the functioning of diamartyria (in particular as regards its relationship with the paragraphe) in the fourth-century Attic documentation. Instead, I am interested in discussing the validity of Gernet’s opinion on the original configuration of diamartyria, which forms the core of his article. First of all, it is necessary to recall briefly what diamartyria is and how it worked in the Attic procedure of the fourth century with particular regard to inheritance disputes. Through the diamartyria a witness (or possibly several witnesses) declares that the inheritance cannot be claimed through lexis klerou (me epidikon einai ton kleron) because there is a legitimate descendant who has the right to possess the inheritance without the need for authorization by the public authority. By virtue of this testimony, the request of the collateral was cancelled (diegraphe). However, the latter has the right to accuse the witness of false witnessing by means of episkepsis and to bring a dike pseudomartyrion accordingly. If he wins the case, scholars are divided on the question whether he should submit a new request for epidikasia, or whether he had to resume the procedure interrupted by 1

The diamartyria also recurs outside the topic of succession, in particular in Isocrates 18 and in Lysias 23. I will not deal with these sources here.

Prehistory and History of the Diamartyria

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diamartyria. If he loses the case, he will not be able to submit a new request for epidikasia. As observed above, Gernet proposes a historical explanation of the singular peculiarities of the diamartyria regime, in particular of the fact that testimony in such cases produces the automatic annulment of the inheritance claim made by the collateral. Gernet starts from an observation. In the Athenian procedural law of the fourth century (and probably as early as the fifth century) any witness can be accused of false testimony, giving rise, in the event of the applicant's victory, to compensation for damages.2 Gernet therefore asks: why give diamartyria a binding efficacy for the outcome of the procedure (contrary to what happens for any other kind of testimony) and at the same time allow its effects to be annulled by means of the dike pseudomartyrion? Furthermore, while as a rule the episkepsis against the false witness is formulated before the people’s court votes, there is no verdict in this case. Therefore, observes Gernet, “on a l’impression ... qu’un droit récent, et par des moyens plus ou moins récents, a fortement réagi pour contenir l’effet énergique d’une procédure traditionnelle”.3 On the basis of this observation, Gernet formulates his hypothesis on the origin of diamartyria: originally it was not a question of judicial witnesses, but of the witnesses who assisted the legitimate descendant heir at the moment in which he entered into possession of the hereditary assets or defended them against any attempts to take them away. That is, it is necessary to refer the process to a remote era, in which someone who claimed the inheritance as a collateral relative did not yet have recourse to formal adjudication by a court through lexis klerou, but entered personally into the possession of the hereditary assets. The direct descendant heir reacted to the collateral’s taking possession through exagoge (that is by the formal process of escorting the rival from the property)4 by being assisted by an adequate number of witnesses. Or, if it was the collateral heir that had taken possession of the hereditary assets (which could still happen in the fourth century, as shown by Dem. 44.32),5 the legitimate descendant heir could remove them from his possession; if the collateral tried to prevent him, he could react with force or, at least starting with Solon, with the dike exoules.6 When the system of claiming inheritance through lexis klerou was introduced (not before Solon, according to Gernet 1955, 88), the witnesses, 2 In inheritance disputes, the conviction of a witness would even have given rise to the repetition of the trial: see Gernet 1955, 87 n. 3; Behrend 1975. 3 Gernet 1955, 89. 4 For exagoge, see in general Harrison 1968, 219. 5 See Gernet’s commentary on the Belles Lettres edition of the oration, 140 n. 1. 6 For the dike exoules, see in general Harrison 1968, 217-221.

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who originally assisted the direct descendant heir in the exercise of selfhelp, became judicial witnesses whose role was to render the collateral’s claim ineffective. Consequently, the only way to counter the testimony in favour of the direct descendant heir was recognized in the dike pseudomartyrion.7 Gernet then concludes his reconstruction of the origins of diamartyria by proposing the following definition: “la diamartyria est un interdit privé, extra-judiciaire, et qui consiste dans une protestation collective où les ‘témoins’ assistent l’intéressé et consacrent une situation juridique”.8 Gernet therefore starts from the assumption that there was an era in which “les droits ne sont pas directement sujets à une appréciation judiciaire”.9 At that time the witnesses would have served to make the affirmed right “objective” by making the resistance of the one who was damaged by the affirmation of that right socially unacceptable. Gernet was probably aware that the transition from witnesses of an act of self-help to judicial witnesses was not easy to explain, and therefore goes in search of other clues that allow us better to represent what he defines as “les prolongements de la diamartyria”.10 First of all, he observes that “instrumental” witnesses, whose presence is required for the validity of a specific private act, can then be called, if a dispute arises, to testify in court. Then he adds: “nous savons du reste qu’à une époque ancienne, ils peuvent se présenter sous l’aspect de cojureurs”.11 Also in this case the testimony has a purely formal efficacy, determining the outcome of the case which is decided by the number of “cojureurs”. Finally, Gernet observes that, despite the fact that apparently the diamartyria now performs the function of a means of proof (therefore on a par with other types of judicial testimony), in reality it does not serve to prove the qualification of a legitimate descendant of those who make use of diamartyria itself, but its function is still that of “interdire un trouble”,12 deriving from the lexis klerou of the collateral. Gernet’s thesis met with considerable success. I will limit myself here to mentioning two of the most authoritative scholars who praised it, H. J. Wolff and A. R. W. Harrison. In particular, Wolff (1966) proposes an interpretation of diamartyria in succession matters which is in some way a variant of Gernet’s thesis. Wolff argues, with Harrison’s (1971, 128) approval, that the diamartyria produces its singular paralysing effect on the 7

A parallel development also occurred with regard to the dike exoules: see Gernet 1955, 93, 97. 8 Gernet 1955, 98. 9 Gernet 1955, 91. 10 Gernet 1955, 98. 11 Gernet 1955, 99. 12 Gernet 1955, 101.

Prehistory and History of the Diamartyria

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lexis klerou of a collateral because the request for the allocation of the inheritance (epidikasia) is an extrajudicial procedure, in which the magistrate is called not to perform a judging function, but to make an administrative decision. In itself, Gernet’s reconstruction appears, as always happens to those who read the pages of this scholar, fascinating and, at first glance, convincing. However, Talamanca (2017, 28 n. 62) has already highlighted its weakness: the difficulty of explaining the transition from “interdit privé” to “means aimed at asserting the inadmissibility of the dike”. Starting from this last observation, one wonders whether the original efficacy of diamartyria really penetrated the judicial sphere from the outside, or whether it should be placed within it from the very beginning. Gernet had considered the “cojureurs”, figures who play an early role in the process, as an “extension” of the original diamartyria. But the “cojureurs” are certainly a very ancient institution, whose nature does not change from the moment they become judicial witnesses, unlike what happens, according to Gernet himself, with the witnesses of diamartyria. It should also be noted that the “cojureurs” by definition swear together with the party whose reasons they confirm. Now, the one who presents the diamartyria to counteract the epidikasia of a collateral of the deceased does not appear to be sworn in (just as apparently the witness in an Athenian trial does not swear). And above all, according to the dominant doctrine, the one who makes use of diamartyria is not party to a diadikasia deriving from a lexis klerou opposed to that brought by the collateral. For this reason, it is argued that it is an outof-court act, even if it has the effect of extinguishing the inheritance claim brought by the collateral. But the most cogent objection to Gernet’s thesis seems to me to be formulated in this way. It can be accepted for the sake of argument (even in the absence of sources) that the lexis klerou, i.e. the possibility of claiming the inheritance by a collateral, was introduced by a legislative innovation (for convenience attributable to Solon); and that, precisely by virtue of this innovation, the witnesses of the primitive diamartyria have acquired a new function within the framework of the new procedure. But it is not explained why in this transformation their testimony retains a decisive efficacy for the affirmation of the right of the descendant, unlike what happens for the testimony of ordinary judicial witnesses, which never determine the outcome of the dispute. It is not explained, that is, why, despite the fact that the archon is invested with the decision on the allocation of the inheritance, the confrontation between the parties is removed from the decision of the court by virtue of a testimony. Nor does it seem to me that the thesis according to which it is an “administrative” and not a judicial procedure, as Wolff argued, provides a more convincing explanation. In

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fact, even in the case of diamartyria, the intervention is still a testimony, as confirmed by the use of the dike pseudomartyrion to contest it. It does not therefore seem to me that we can postulate a different effectiveness of a judicial testimony if the procedure aimed at obtaining the allocation of the inheritance is defined as “administrative”. In 1938 F. Lämmli had insisted on the character of diamartyria as a formal means of proof, therefore binding for the magistrate (pp. 154-155). Lämmli’s opinion was fundamentally ignored (perhaps because, against the dominant doctrine that considers it an out-of-court act, he considered diamartyria a testimony).13 Now, if we keep in mind the provision of the so-called Code of Gortyn (IC IV 72, col. XI 26-31), which contemplates, in the cases established by law, the mode of judgment dikadden kata maityra (“to decide according to a witness”), it is possible to advance the hypothesis that even in Athens the direct descendant of the deceased could successfully oppose the inheritance claim of a collateral of the deceased by presenting a witness who certified the qualification of the descendant. This is obviously an analogical reasoning that cannot be substantiated with historically convergent or even superimposable data. Meanwhile, in Gortyn’s law there is no trace of a procedure similar to Attic epidikasia. And as far as Athens is concerned, we are not able to say whether, before Solon, there was a rule (written or oral) which, similarly to the norm of the Code just mentioned, provided for the presentation of a binding testimony on the judge. Of the situation preceding the supposed creation of the lexis klerou the principle remains firm, presumably recognized at the Panhellenic level (as it will later be in Rome with regard to the sui), that direct descendants can take possession of the hereditary assets (a principle which, moreover, Gernet himself admits).14 But, as we have seen, this principle does not explain the binding effectiveness of testimony in favour of the legitimate descendant. We must therefore go back to an era prior to the establishment of the people’s court, when the formal judicial power lay with the magistrate.15 And consequently we must suppose that the decision on the lexis klerou by a collateral opposed to the right asserted by a direct descendant was left to the archon. A law (we do not know whether written or oral) allowed the legitimate descendant, who wanted to have his right to inheritance recognized, to present a binding testimony aimed at excluding the claim of the collateral. We must therefore assume the existence also in Athens of a 13 “Jede Diamartyria ist in erster Linie ein Zeugnis … Erste Voraussetzung jeder Diamartyria ist also das martyrein: es darf sich nicht um eine blosse Erklärung me eisagogimon einai handeln” (Lämmli 1938, 156). 14 Gernet 1955, 90-91. 15 See AP 3.5 with the commentary by Rhodes 1981, 106.

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mode of judgment equivalent to the dikadden kata maityra in Gortyn. That apparently the testimony does not aim to affirm the status of legitimate heir of the descendant is justified by the fact that he was not required to obtain the allocation of the inheritance from the archon, also because he was normally already in possession of the inherited assets. However, it is clear that victory in the dike pseudomartyrion did not give the collateral, who challenged the testimony, recognition of his right to inherit, but would indirectly demonstrate that the one who presented the diamartyria could not be considered a legitimate descendant of the deceased (in this sense the procedure exercised the function of controlling civil status that Paoli attributed to diamartyria).16 It therefore appears more plausible, even if not demonstrable, that the binding effect of the classical diamartyria is to be linked to a form of judgment bound by testimony, precisely as we see in the Gortyn Code. In the Code there is still no trace of the possibility of challenging a testimony as false (although the Code is certainly dated long after the alleged introduction of the dike pseudomartyrion by Charondas).17 However, as Gernet himself notes,18 even in Athens there are no traces of the dike pseudomartyrion before the end of the fifth century. Evidently, a compromise was sought between the ancient binding effectiveness of the testimony and the need to submit it to a veracity check in the new regime of free evaluation of evidence by the people’s court. For what reason the Athenians wanted to maintain, at least in the first instance, the ancient binding effect is not easy to conjecture. Perhaps because the legitimate descendant did not need to prove his qualification except to counter the claim of a collateral.19 On the other hand, it is not even entirely correct that the diamartyria has only negative content (me epidikon ...), as argued by Gernet.20 In fact, the testimony is given in the interest of the legitimate descendant, so it indirectly proves his qualification. In the event of defeat in the dike pseudomartyrion of the one who gave the testimony, the epidikasia of the collateral, rendered ineffective by the diamartyria, will not only be again proposed, but it will be proved that the party in whose interest the testimony was given is not a descendant of the deceased. The thesis that I support implies that from the very beginning the diamartyria was an institution of a judicial nature, that is, substantially a means of proof (as is precisely the witness in the dikadden kata maityra). This implies that even in fourth-century inheritance cases it retains the 16

Paoli 1933, 143ff. For Charondas and dike pseudomartyrion, see Aristotle Pol. 1274b. 18 Gernet 1955, 88. 19 In this sense also Gernet 1955, 100. 20 Gernet 1955, 101. 17

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nature of a means of proof. Thus, the procedure in question, contrary to what Wolff, followed by Harrison, argued, was a judicial procedure.21 This is confirmed by the possibility of challenging the diamartyria through the dike pseudomartyrion. Despite the difficulty of reconstructing the phases of the procedure, I believe that the archon himself will have had to pronounce formally in accordance with the testimony, denying the admissibility of the lexis by the collateral: we are therefore faced with a case, completely exceptional, in which the archon keeps the jurisdictional power he was vested with before the creation of the people’s court. But in order to present a witness, the legitimate descendant must also have appeared in court and taken an active part in the anakrisis, at least in order to affirm his right.22 Consequently, the episkepsis on the part of the collateral against the witness who provides the diamartyria will precede the statement of the archon which determines the diagraphe of his lexis klerou. It is no coincidence that no deadline has been established by the sources for presenting the episkepsis.23 On the other hand, there is at least one case in which the diamartyria is given in favour of a party who, while claiming to be a descendant of the deceased, has also presented the lexis klerou in opposition to that of the collateral, and is therefore a party in a proceeding defined by the speaker himself as diadikasia (Dem. 44.50).24 This is Dem. 44, a dike pseudomartyrion by which Leochares’ diamartyria is challenged. Therefore, in this case it is necessary to postulate a ruling by the archon which presumably produces the loss of the claims of both parties. In §7 the speaker invites the judges to vote to award the kleros. Now, the dike pseudomartyrion cannot reallocate the inheritance. So the speaker probably alludes to the fact that, in the event of victory, Leostratus, that is, the party who presented the testimony given by his son Leochares, will be able to keep possession of the inheritance. If, on the other hand, it is the opponent, the son of Aristodemus, collateral of the deceased Archiades, who is the winner, he will be able to resubmit his request for the assignment of the inheritance.25 Now, it is true that the case discussed in Dem. 44 presents characteristics that are in many respects 21

See Behrend’s critique (1975, 139 n. 34) of Wolff. See the description of the various initiatives of the parties in Isaeus 6. 23The proposal of U. E. Paoli (1933, 165-166 n. 2) is not documented. 24 A similar situation almost certainly occurs also in Isae. 3 (see the commentary by Paoli 1935, 6ff.; less convinced is Wyse 1904, 288) and, in my opinion, also with reference to the echinos (SEG XXXVI 296) containing a diamartyria (contra Wallace 2001, according to whom it is not a dike pseudomartyrion). 25 I leave aside here the question, which I mentioned above, whether it is the previous process, interrupted by the diamartyria, which continues, or whether a new lexis klerou had to be presented. See Paoli 1933, 166; Wolff 1966, 131 n. 55. 22

Prehistory and History of the Diamartyria

15

unusual. However, it seems to me undeniable that Leostratus, while proclaiming himself legitimate heir and despite being in possession of the hereditary assets (Dem. 44.27-32), on the one hand presents the lexis klerou (Dem. 44.40) and, on the other hand, resorts to the binding efficacy of the diamartyria. The diamartyria therefore appears here as a testimony presented by a party to the dispute, not an out-of-court remedy. Furthermore, in the significant passage of Dem. 44.57-59, diamartyria is alluded to as a judicial remedy. The agones in which the diamartyria is used are considered the most unjust and most worthy of reproach (§57). Recourse to diamartyria is allowed only if there is no other way of obtaining justice with regard to the issues involved in the dispute (§57). But the legislator did not impose it on the opposing parties (antidikoi) (§58). Finally, it is true that (as confirmed by §59) the diamartyria bars access to the court; but can we conceive that a trial (an agon, as we read here) ends with an act by one of the parties? It is therefore confirmed that, in cases of diamartyria, exceptionally, it is a decision of the magistrate to close the dispute (at least temporarily).

CHAPTER 2 ORAL AND WRITTEN EVIDENCE IN THE SPEECHES OF ISAEUS MIKE EDWARDS

There is general agreement among scholars of Athenian law that at some time in the early fourth century a change took place in the practice of calling witnesses at trials. Before the change, witnesses gave their evidence orally, with the opportunity to be questioned and cross-examined, but from this point on witness statements were read out by the court clerk, and the witnesses themselves simply confirmed that this was their evidence.1 When this change occurred has been the matter of some debate, most scholars accepting a date of “around 380”, or more precisely 378/7.2 The purpose of this chapter is to revisit this old chestnut, with specific reference to the evidence for it in the corpus of the speeches of Isaeus. In doing so, we find that the evidence for a change at this time is, to say the least, rather flimsy. We start, however, not with Isaeus, but with his most famous pupil.3 In his Against Stephanus I Demosthenes makes the following statement: First of all, whenever he tries to say this, that he’s not accountable for the whole deposition, reflect that the very reason why the law bids the witness to give testimony in written form is to prevent him from subtracting or adding to the items that have been put in writing. Accordingly, it was then that he should have ordered them to erase the particular items that soon he’ll say he has not witnessed—and not order them erased now, when those items are part of the deposition, should he have the impudence to repudiate them. (Demosthenes 45.44; trans. Scafuro, her emphasis) 1

As MacDowell 1978, 242-243. As proposed by Calhoun 1919. MacDowell (ibid.) considers that this “cannot be proved”. For “around 380”, see, e.g., Todd 1993, 336; Phillips 2013, 38. 3 For the tradition that Isaeus was Demosthenes’ teacher, see Edwards 2007, 2. 2

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17

The “then” refers to the arbitration process (diaita) which preceded the series of trials of which this case was a part, when the evidence for both parties was presented to the public arbitrators and sealed in two jars (echinoi), one for the prosecution and one for the defence.4 The case itself was heard in c. 350/49, in all probability soon after the paragraphe case brought by Phormion against Apollodorus at which Demosthenes had written a speech in support of Phormion (Dem. 36).5 That he has now changed sides and is writing for Apollodorus has worried some scholars, but most accept that Dem. 45 is a genuine work of the orator, rather than of Apollodorus.6 Either way, there is no reason to doubt that the speech was composed at this time. This passage of Demosthenes, then, is the evidence for a change in the law from the giving of oral to written evidence in court, and 350/49 is the immediate terminus ante quem for the passing of the new law. Bonner and Smith push this terminus further back to Demosthenes’ early litigation against his guardians, which dates to 364.7 In Against Aphobus I, for example, he says: țĮ઀ ȝȠȚ ਕȞĮȖ઀ȖȞȦıțİ ȜĮȕઅȞ IJĮ઄IJȘȞ IJ੽Ȟ ȝĮȡIJȣȡ઀ĮȞ. Please take and read this testimony. (Dem. 27.8; trans. MacDowell)

This is the regular deposition formula in these earliest Demosthenic speeches,8 however in the third one, Against Aphobus III, which is a defence of Phanus against a charge of false witness (a dike pseudomartyrion), the first witness formula we find in the speech runs as follows: țĮ઀ ȝȠȚ ț੺ȜİȚ IJȠ઄IJȦȞ IJȠઃȢ ȝ੺ȡIJȣȡĮȢ. Please call the witnesses of this. (Dem. 29.12; trans. MacDowell)

This formula, which recalls those of the earlier orators when evidence was certainly given orally, recurs three times in §§18, 26 and 53, and the four instances of it in fact outnumber the three instances of the deposition 4

See MacDowell 1978, 209. See MacDowell 2009, 115. 6 Such as Trevett 1992, 50-76, though interestingly (since he tends towards giving the benefit of the doubt in these matters) not MacDowell 2009, 120, who would attribute the speech to Apollodorus himself. 7 Bonner and Smith 1930, 353-362. 8 Cf. 17, 22, 26, 28, 33, 39, 41, 42, 46; Dem. 28, Against Aphobus II, 10, 11-13; 29, Against Aphobus III, 21, 39, 54; 30, Against Onetor I 9, 17-18, 24, 30, 32, 34; 31, Against Onetor II, 4. 5

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formula at §§21, 39 and 54. If, then, the four references to witnesses in Dem. 29 do in fact indicate that oral evidence was still employed in 364, that year becomes problematic for the dating of the change in the law. As was indicated earlier, however, most scholars think that the change in the law actually took place a decade and a half earlier than 364. In a seminal article in 1919, Calhoun argued that the change from oral to written testimony accompanied a change from oral to written pleading, and he dated both changes to the archonship of Nausinicus (378/7), a year of constitutional reforms in the build-up to war against Sparta. Calhoun noted that “we find in the forensic speeches of Antiphon, Andocides, Lysias, and Isocrates a studied variety of expression for the commencement of actions, but nothing that may be construed as an allusion to the writing or handing in of pleadings by litigants”;9 and the same applies to witness testimony. Now, the latest datable forensic speech of the four orators named by Calhoun is by Lysias— not 10, Against Theomnestus in 384/3, as Bonner and Smith have it,10 but 26, Against Euandrus, delivered on the final day of the archon year 383/2, as Todd, who also notes that the fragment of the For Pherenicus speech (fr. 135 Carey) “must belong during the period of Spartan occupation of the Theban Kadmeia in 382-379”.11 All this fits with Calhoun’s 378/7, but what seems a serious problem for his dating is a passage from Isaeus 5, On the estate of Dicaeogenes, which is datable to 389/8:12 And we’ll produce witnesses to you first that Dicaeogenes renounced twothirds of the estate in our favour, and then that Leochares went surety for him. Please read the deposition. DEPOSITION. You have heard the witnesses ... (Isaeus 5.2-3; trans. Edwards)

This is a clear reference to a written deposition (ਕȞ੺ȖȞȦșȚ IJ੽Ȟ ȝĮȡIJȣȡ઀ĮȞ), which is preceded by the statement that the speaker is going to call witnesses (ȝ੺ȡIJȣȡĮȢ ਫ਼ȝ૙Ȟ ʌĮȡİȟંȝİșĮ) and followed by a remark that the jurors have heard them (IJ૵Ȟ ȝ੻Ȟ ȝĮȡIJ઄ȡȦȞ ਕțȘțંĮIJİ), i.e. that they have confirmed the wording of the document. A variation on one of the standard witness formulas is used here (cf. Lys. 13.66); the verb is more regularly found in the first person singular, ʌĮȡ੼ȟȠȝĮȚ, as happens on seven subsequent occasions in the speech, where there is no hint of a written statement. But it is to be noted that there is a reference here to “witnesses” (martyras), used 9

Calhoun 1919, 189. Bonner and Smith 1930, 358. 11 Todd 2007, 625 n. 1. 12 See Edwards 2007, 80. The trial took place about 22 years after the death of Dicaeogenes, probably in a sea-battle off Cnidus in 411. 10

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in conjunction with a written deposition. Various arguments have been put forward to explain away the difficulty, which Calhoun himself recognized, that written depositions are evidenced here in a speech that is a decade earlier than his proposed date for the change in the law. Long before Calhoun’s article appeared, Thalheim, in a review of Bonner’s Evidence in Athenian Courts, which was published in 1905, two years after Thalheim’s Teubner text of Isaeus, took on board Bonner’s arguments for a change in the law around 380 and proposed to delete the words țĮ઀ ȝȠȚ ਕȞ੺ȖȞȦșȚ IJ੽Ȟ ȝĮȡIJȣȡ઀ĮȞ as an interpolation, stemming from the use of the expression țĮ઀ ȝȠȚ ਕȞ੺ȖȞȦșȚ IJ੽Ȟ ਕȞIJȦȝȠı઀ĮȞ either side of this section in 2 and 4.13 It may be regarded as bad editorial practice to adjust the text to make it fit a theory, although the suggestion was found attractive by Bonner and Smith,14 and also by Hommel in a review of Calhoun.15 But Calhoun himself argued that “the isolated instance of the reading of a deposition in 389 does not justify us in dating the change as early as 390, for there is not the slightest reason why evidence should not occasionally have been presented in writing prior to the enactment of a legal requirement that it be so presented”.16 This, on the face of it reasonable argument, was countered by Bonner and Smith, who find it “difficult to see why Isaeus’ client needed a written deposition for the first witness when he was able to elicit the testimony of the remaining seven groups of witnesses in the presence of the jury”.17 Now, the problem with this, on the face of it equally reasonable, argument18 is that speeches 6, 7, 8 and 9 of Isaeus all have the same mixture of calls to witnesses and calls to read depositions.19 Either, then, Isaeus did use a mixture of oral and written evidence, for whatever reason; or we have to recognize the ambiguity of the formula which appears to summon witnesses to give oral testimony and assume that when the 13

Thalheim 1905, 1575. Bonner and Smith 1930, 359. 15 Hommel 1923. 16 Calhoun 1919, 191. 17 Bonner and Smith 1930, 361. 18 Reasonable because the witness had to be in court anyway to confirm his written statement. Witnesses who were unable to be present could submit an absentee deposition (ekmartyria), made in front of witnesses who would then confirm the ekmartyria at the trial. See Phillips 2013, 38. Part of the evidence for the ekmartyria comes from Isae. 3.18-21, a speech which may be contemporary with speech 5 (see below). But it would, again, be bad practice to explain the presence of a written testimony here by amending the text of 5.2 to read ਥțȝĮȡIJȣȡ઀ĮȞ (followed by ǼȀȂǹȇȉȊȇǿǹ). 19 Respectively, 3 and 5 times (speech 6); 5 and 1 (speech 7); 4 and 4 (speech 8); and 8 and 5 (speech 9). 14

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speaker calls witnesses, he is in fact referring to written testimony. At this point we need briefly to consider the dates of Isaeus’ speeches.20 In the following table, I give the commonly accepted dating for each speech, followed by the dating of Wevers, who used the rhythm of clausulae to set the order of the speeches (significant differences are highlighted): 1. Cleonymus: 2. Menecles: 3. Pyrrhus: 4. Nicostratus: 5. Dicaeogenes: 6. Philoctemon: 7. Apollodorus: 8. Ciron: 9. Astyphilus: 10. Aristarchus: 11. Hagnias:

early c. 355 late unknown 389/8 365/4 or 364/3 c. 354 after 383, before 364/3 366 or 350s 378-1 early 350s

c. 355 c. 355 c. 389 c. 350 or later 389 36421 c. 355 c. 36522 c. 37023 c. 355 c. 36024

It is evident from this table that while the witness/deposition formula debate has focused on the problems caused by Isaeus 5, speeches 6-9 indicate that there are also problems with this theory the other way round: why does Isaeus apparently continue to use oral evidence in speeches that are in the 360s (6, possibly 8 and 9) and even the 350s (7 and possibly 9), if there was a law in force from 378/7 requiring written testimony? Or again, in order to save that dating, must we take all the witness formulas to indicate (as certainly when the noun martyrian and the imperative anagnothi are used) written testimony? The other speeches in the Isaean corpus are also relevant to the discussion, though most of their dates are equally uncertain. Most scholars 20 For discussions, see, e.g., Forster 1927; Edwards 2007; on speeches 7, 8 and 9, Griffith-Williams 2013, on 1, 2, 4 and 6 Griffith-Williams 2022. 21 On Greek inclusive reckoning, 52 years after the Sicilian Expedition (6.14), either archon year 365/4 or 364/3. 22 Not earlier than 383, because the speaker, who will have been at least 20, was born after the archonship of Eucleides in 403 (§43); and it is unlikely to be later than 364/3, the year Demosthenes prosecuted his guardians Aphobus and Onetor employing passages that appear to be borrowed from Isaeus. Griffith-Williams (2013, 89-90) is sceptical about the latter argument, but agrees that the speaker’s apparent youth makes a much later date unlikely. 23 Astyphilus died in Mytilene (§1), after the Theban War in which he served (§14); possible occasions are the operations of Timotheus in 366/5 or later garrison duty, even into the 350s. See Griffith-Williams 2013, 151. 24 See Edwards 2007, 178.

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would put speech 1, On the estate of Cleonymus, amongst Isaeus’ early efforts, but there are no internal indications of the date and Wevers’ method puts it considerably later in c. 355.25 It contains three references to witnesses (§§16 twice, 32), but none to depositions. The uncertainty of the dating, however, makes it problematic as firm evidence for the change. Likewise, speech 10, Against Xenaenetus, has only one testimony, introduced by the formula “please call the witnesses” (§7). Since the speaker tells us (§20) that he served with his father in the Corinthian War (394-386) and refers to a war that was still in progress (§22), most scholars date the speech to the time of the Theban War (378-371),26 and so it could just about be squeezed in before the law was passed. But Wevers takes the reference to a current war as referring to the Social War (357-355) and dates the speech to c. 355, again making it one of the later speeches and problematic as evidence for a change in 379/8.27 As for the remaining speeches in the Isaean corpus connected with inheritance,28 speech 2, On the estate of Menecles, for once is unproblematic. It has five written testimonies (§§5, 16, 34 twice, 37) and is certainly one of the later speeches, usually dated from internal evidence to c. 355.29 On the other hand, speech 3, On the estate of Pyrrhus, strictly speaking is undatable from internal indications, though two of the witnesses are known from events in the late 340s, and so it is usually seen as one of the later speeches.30 Wevers’ method, however, suggests c. 389.31 If that is right, it is interesting that the 12 sets of evidence in this speech are all written,32 and so speech 5 may not be the only one with written depositions prior to 379/8. Speeches 2 and 3, in fact, are the only inheritance speeches where the evidence is exclusively (and definitely) written. While, then, speech 2 certainly fits with Calhoun’s theory, speech 3 may not. Also problematic is speech 11, On the estate of Hagnias, which dates to the early 350s and has one written deposition (§46), as one would expect, but also one apparently oral statement (§43). If so, it might be thought ironic that a 25

E.g. Bonner and Smith 1930, 358; contra Wevers 1969, 21. As Griffith-Williams 2013, 196. 27 Wevers 1969, 23-25. 28 Speech 12, On behalf of Euphiletus, concerns citizenship. Strictly speaking, it is a fragment, preserved in Dionysius (Isaeus 17), but it happens to contain one witness deposition (§11). The date of the speech appears to be 344/3 (as Forster 1929, 430431; Edwards 2007, 195), and so it is evidence for a change by that time. 29 For the details, see Forster 1927, 39, who is followed by Wevers 1969, 16. Edwards (2007, 31-32) has 354/3. 30 As by Forster 1927, 75. 31 Wevers 1969, 21. For discussion, see Hatzilambrou 2018, 10. 32 Cf. §§7, 12, 14, 15, 37, 43, 53 twice, 56, 76 twice, 80. 26

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speech which relies heavily on citing the law (in §§1, 4, 11 and 22) seems itself to contravene it. Or does it? That leaves speech 4, On the estate of Nicostratus, a supporting speech which has no testimonies. However, I note that there are a number of references to testimonies produced by the main speaker: “producing witnesses” (ȝ੺ȡIJȣȡĮȢ, §2), “we have produced witnesses to you of all these facts” (ȝ੺ȡIJȣȡĮȢ, §18), “you have heard testimony about this too” (țĮ੿ IJĮ૨IJĮ ȝİȝĮȡIJ઄ȡȘIJĮȚ, §20), “are these relatives testifying for a man who claims ...” (ȜĮȤંȞIJȚ ȝĮȡIJȣȡȠ૨ıȚȞ, §24), “they produced witnesses” (ȝ੺ȡIJȣȡĮȢ, §26), and finally “the testimony that we produced” (IJ૵Ȟ ȝĮȡIJȣȡȚ૵Ȟ, §31). There appear, then, to be several references to what may have been oral or written testimony, followed at the end by a reference to what seem to be written testimonies—though IJ૵Ȟ ȝĮȡIJȣȡȚ૵Ȟ here in the speech’s epilogos could be a general, recapping reference to the “testimony” the speaker has already mentioned. This speech is regularly dated to c. 374 because of an emendation which is in my view erroneous;33 without that, there is no internal evidence and Wevers would put it in c. 350. Either way, if the references to witnesses are taken at face value, this speech is also after the date proposed for the change in the law to written depositions. The above discussion suggests that Isaeus’ speeches are far from being the firm evidence for a change in the law that they have been assumed to be. Isaeus seems to reflect a different practice from the earlier orators, but we need to consider how far his apparent references to oral testimony should be taken at face value. If they are not actually references to oral testimony, we might then ask whether we should take the exact same witness formulas used by the earlier orators (in the fourth century, at least) as secure evidence that they were not, in fact, using written testimony.34 And how do we interpret similar formulas in later speeches? Bonner and Smith discuss the obvious question as to whether we can test the statements made by the orators: “On occasion they use language that shows beyond doubt that their witnesses were giving oral testimony … In these instances the witnesses evidently told their stories quite informally in their own way”.35 This judgment seems rather naive to me (the judges may have heard the witnesses orally confirm their written statements), and on most occasions, as Isae. 5.2 demonstrates, speakers saying they are now going to produce witnesses and then telling the judges what they have heard would fit both forms of 33 See Edwards 2002. This date had previously been called into question by Wevers 1969, 21-23. See also Griffith-Williams 2022, 121-122. 34 Though, as Bonner and Smith point out (1930, 353), a clerk is not asked to read a deposition in Andocides, Isocrates or Lysias. 35 Bonner and Smith 1930, 353-354.

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testimony, as does the expression “call the witnesses”, because they were actually called.36 There are a large number of speeches in the later orators where the reference is only to written depositions;37 but there are in fact almost as many speeches where there is a mixture of calls to witnesses and written depositions, and in two cases only calls to witnesses.38 So if we accept that there was a change in the law before these speeches were delivered, it would appear that the wording of the formulas is irrelevant,39 but this in turn means that we cannot be certain about the situation in the speeches of Isaeus. I turn now to legal considerations. In an article in Symposion 1982, Ruschenbusch wanted to take the date for the change to written testimony back to 390, noting that there was a change in arbitration rules in c. 400.40 But then it is far from clear what happened to witness testimonies in the decade or more between the change in arbitration rules and the change in testimony rules. Was there perhaps a gradual shift towards written evidence, rather than a specific law ordering it at this time? This raises again the question of the apparent mixture of oral and written evidence in Isae. 5. Would Isaeus in fact have had a choice in his method of presentation, perhaps in a transitional period? Chris Carey advises me, with his usual acumen, that it is far more likely that Isaeus did not have such a choice, and that the change in the law (whenever and however it took place) was “topdown”, rather than “litigant-led”. For example, it imposes new duties on the clerk of the court (grammateus), which we would not expect to be at the whim of individual litigants, and the change will have been dictated by the needs of the court system (such as in terms of court time) rather than by those of litigants. I do not think this “top-down” compulsion is necessarily the case: there were certainly aspects of the Athenian legal system where litigants, within the general framework of the law, did have the right to choose, most obviously in the type of procedure they wished to use for a prosecution, but also in the selection of which passages of a law were to be 36 In Isae. 6.11 the speaker says “please call these people first and read their depositions”, and on occasion, a speaker will ask for a witness or witnesses to be called and name them, but then ask for their testimony to be read out, as in Aeschin. 2.67. 37 Dem. 27, 28, 30, 31, 32, 33, 34, 35, 36, 38, 42, 43, 45, 46, 48, 49, 50, 55; Lyc. 1; Hyp. 3 (only one instance at §33); Din. 1 plus one fragment (lx.1.103). 38 Dem. 18, 19, 21, 23 (witnesses only), 25, 29, 37, 39, 40, 41, 44, 47, 52, 53 (witnesses only), 54, 57, 58, 59; Aeschin. 1, 2. 39 A matter of old habits and expressions dying very hard, given the number of times the traditional formulas are used. 40 Ruschenbusch 1989. This date would, of course, invalidate the argument that witness statements in Lysias must always be oral ones.

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read out in court. But if it is the case, we have once more to assume that all the references to witnesses in speech 5 (and also in the “mixture” speeches 6-9, and 11) are in fact to written evidence. It should then follow that the law on written evidence had already been introduced by 389, in line with the dating of Ruschenbusch rather than Calhoun. If so, there are implications for the speeches of Lysias, at least: for example, did the “witnesses” called at 10.5 give oral or written testimony? Shortly after, Lysias has the law read out three times (§§14, 15, 16), so did the clerk also read the witness statements? There is, I think, an alternative scenario which we should consider. If Isaeus’ speakers do in fact call oral witnesses in speeches 1 (which could be after 389) and 10 (which is certainly later than 389), which were both delivered in diadikasia cases, might this imply that the law was not quite as general as we are led to believe by Demosthenes? In other words, what law is it that he refers to in 45.44—was it a general law covering most (but probably not all)41 types of case, or might it have been more targeted? I note that Demosthenes’ statement is found in a suit for false witness (dike pseudomartyrion), the same process as in Isaeus 2, 3 and 6.42 It would make sense that a law requiring written evidence was first passed in the case of trials that arose out of a witness allegedly having given false evidence, perhaps because it had changed since the arbitration or pre-trial hearing (anakrisis)43—the purpose of the law, Demosthenes says, was “to prevent him from subtracting or adding to the items that have been put in writing”.44 Other false witness speeches in the Demosthenic corpus are speeches 45, 46

41

See n. 51 below. Brenda Griffith-Williams points out to me that in Isae. 2 and 6 the defendant accused of false testimony is the deponent of a diamartyria, not a witness at a trial (as in Isae. 3 and Dem. 45). This may or may not be significant as far as oral and written testimony is concerned. As Chris Carey notes, the original witness statement (the one which provokes the episkepsis which led to the dike pseudomartyrion) might still be an oral testimony. 43 Probably the latter in inheritance disputes, where there is no conclusive evidence for arbitrations; see Griffith-Williams 2022, 21. 44 Adele Scafuro makes another suggestion as to why the change might have taken place first with the dike pseudomartyrion: it could have something to do with the rule that if a defendant lost such a suit three times he would suffer atimia (see MacDowell 1978, 245 with n. 555). It would be especially important to have the testimony written down in these cases, so that advocates/logographers could argue their cases. 42

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25

(both probably 350/49)45 and 47 (356/5).46 Speeches 2 and 3 happen to be the only ones in Isaeus where there is only written evidence, while in speech 6 the instances of written evidence outumber the apparent instances of oral evidence 5-3—just as in Dem. 29 (4-3). In Dem. 45 and 46 there is, likewise, only written evidence, but in Dem. 47, while the same overwhelmingly applies (13 instances), the language used could be taken to suggest oral testimony in §§27 and 44. We perhaps need, however, to compare what he says in §24: To prove that I’m telling the truth I’ll furnish as witnesses (ȝ੺ȡIJȣȡĮȢ) both the decree and the law, and then the board of magistrates that transmitted the names and brought the cases into court, and finally members of the symmory in which I was the overseer and trierarch. Please read these. (Dem. 47.24; trans. Scafuro)

In other words, when Demosthenes (or rather Apollodorus) twice uses the word “witnesses” he may do so to mean their presence in court. If, then, a law, whether general or specifically at first with respect to trials for false witness,47 was passed in Athens requiring written testimony, perhaps confirming in writing, as it were, a practice that had been growing for some time, and if before this law it was open to a litigant to use both types of witness statement (despite Carey’s reservations), the above discussion points to a date in the late 350s for its introduction, allowing for Isae. 2 (355), 3 (if late) and 6 (364, a “mixture”), as well as Dem. 29 (364, a “mixture”) and 47 (whether 356/5 or 354/3, a “mixture”). After this, much of the time speakers are clearly referring to written evidence, but there are many passages where this is not indicated by the wording,48 unless we assume that all references to witnesses must be to the confirmation of written evidence. To sum up, I do not question that there was a law, or that there was a provision in a law, about written evidence: while he unscrupulously changes sides in the Against Stephanus, we need not suspect Demosthenes of

45

As MacDowell 2009, 115. As MacDowell 2009, 136-141. Scafuro (2011, 297-298) does not choose between “as early as 355” and 354/3. 47 The law, or the practice at least, was then gradually applied to other types of case. An example might be maritime cases (dikai emporikai), which were not introduced until c. 350. See Todd 1993, 334. 48 For example, two of the three witness statements in the De Corona, delivered over three decades later have ȝ੺ȡIJȣȡĮȢ (§§135, 137), one has ȝĮȡIJȣȡ઀ĮȢ (§267). Is this simply variatio in Demosthenes’ expression, or does he really mean oral witnesses? 46

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inventing a law, which of course was illegal.49 This law possibly confirmed what had become the regular practice, rather than itself changing that practice. But the evidence presented above can be taken to indicate two very different scenarios for the date of the change: a) Firstly, when later orators use the word martyres, this should be taken to mean written evidence confirmed by the witnesses. This allows for the many uses of martyres in the speeches from Isaeus onwards and is consistent with a change in the law, which is evidenced by Dem. 45.44. In that case, some speeches of Isaeus (6-9, 11) which date from the 360s or 350s but which appear to have a mixture of oral and written testimonies, speeches (1 and 10) which appear only to have oral witnesses, and one speech (4) that postdates a change in about 380 but appears to refer to a mixture of oral and written testimonies, must all in fact refer to written testimonies; and this does away with the problem of explaining why some witnesses were called to give oral evidence while others were called to confirm written evidence. If so, why should we doubt that the apparent mixture in speech 5 is in fact nothing of the sort, but the speaker is referring only to written testimony? If, however, speeches 3 and 5 were written about 389, this strengthens the possibility that the law may after all have changed in c. 390, as Ruschenbusch suggested. But this has the knock-on effect of calling into question the apparent use of exclusively oral witnesses in the later speeches of Lysias. b) On the other hand, when an orator uses the noun martyres, with no accompanying call to read the evidence, this could be taken at face value. Indeed, should we put more trust in a single, possibly contentious statement of Demosthenes50 than in the numerous occasions when the word martyres is employed and no indication is given that these witnesses are there merely to confirm written testimony (as appears still to be the case in Dem. 23 and 53)? In this scenario, there may have been some types of case or courts to 49

See MacDowell 1978, 242. Note that Demosthenes uses the verb țİȜİ઄Ȧ twice in 45.44. As well as “order”, țİȜİ઄Ȧ can have a less prescriptive force with the meaning “recommend” or “propose” when it is used with an infinitive only, as here; see LSJ (s.v. 9). Indeed, the early Homeric meaning of the verb was “urge on”, and the meaning found in Herodotus, Thucydides and Xenophon, as well as in Lysias, was “urge”; see The Cambridge Greek Lexicon s.v. 1 and 2, and s.v. 3 for the meanings in the category “of persons, one’s heart, the law, justice”, command, bid, ask, as well as order. However we translate, it is clear that when orators (who are not disinterested interpreters of the law) say “the law orders”, it does not always in fact do so, as is certainly the case in, e.g., Lysias 1.27; see Todd 2007, 121.

50

Oral and Written Evidence in the Speeches of Isaeus

27

which the law applied, but others to which it did not.51 If Demosthenes is in fact referring to a law that was originally connected with the dike pseudomartyrion, a date in the late 350s rather than Calhoun’s 378/7 or Ruschenbusch’s 390 better suits the evidence of the speeches of Isaeus.52

51 Bonner and Smith (1930, 355, following Bonner 1912) think homicide was different, so we already have a possible exception. Brenda Griffith-Williams points out to me that Lys. 16.8, cited by Bonner and Smith 1930, 357 as “the latest reliable reference to oral evidence”, is from a dokimasia speech before the Boule. 52 I am very grateful to Chris Carey, Brenda Griffith-Williams and Adele Scafuro for their helpful comments on an earlier draft of this chapter.

CHAPTER 3 DIKE PSEUDOMARTYRION: A REMEDY AND MEASURE FOR RETRIAL? ELENI VOLONAKI

1. Dike pseudomartyrion: the procedure In classical Athens, witnesses ran the risk of being prosecuted on the grounds that they had given false or illegal testimony at a trial. The existence of this procedure suggests that witnesses had to follow certain rules in the presentation of testimony in court. The present chapter focuses on the legal aspects of a dike pseudomartyrion and its function in the judicial decision-making process of the Athenian courts. My aim is to examine the specific legal procedure in two cases of false testimony, the first arising from an inheritance dispute as presented in the speeches Against Stephanus I (Dem. 45) and II ([Dem.] 46) and the second arising from a trial for assault as presented in the speech Against Evergus and Mnesibulus ([Dem.] 47). The dike pseudomartyrion can be used as a means to reverse the outcome of a previous trial and receive compensation. Speeches 46 and 47 in the Demosthenic corpus are considered to have been written by Apollodorus, whereas speech 45 was composed by Demosthenes to be delivered by Apollodorus. It is worth exploring the rhetorical strategies used in the context of a trial for false testimony. The dike pseudomartyrion was an instrument that enabled each litigant before the judges’ final decision to announce in court that he intended to sue one or more of the other’s witnesses, and thus influence the judges’ final decision. The ensuing trial was an agon timetos and the convicted person was normally sentenced to pay a fine. A witness in court was liable to a dike pseudomartyrion if his testimony was

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subsequently considered to be false or improper.1 According to Demosthenes 46.6-7, legal and proper testimony was about facts that a person knew or events at which he was present, and this evidence had to be recorded in a document at the pre-trial hearing or arbitration so that it would remain unchanged until the trial. Hearsay testimony was not allowed while the original witness was still alive, unless the witness was abroad or incapacitated (46.8). Thus, the main issue in a dike pseudomartyrion would be the legality or falsity of the testimony presented in the original trial or diamartyria rather than an inquiry into the substance of the testimony as to whether it proved the prosecutor’s case or not; the latter would be for consideration at a possible retrial of the original case.2 The purpose of the prosecution in a dike pseudomartyrion was twofold: first to prove that the testimony provided by the accused witness(es) was false or illegal, and second to prosecute and punish the false witness. In [Dem.] 47.1, the speaker refers to all aspects of the procedure of a dike pseudomartyrion: a litigant has the legal right to challenge the deposition of his opponent’s witness(es) through the process of an episkepsis (discussed below). If he wins the trial for false testimony, the false witness is fined, and the prosecutor can subsequently also sue the litigant who had produced the witness with a dike kakotechnion. If a person was convicted three times of false testimony, he would lose his citizenship (atimia), and therefore no person with two convictions could be forced to give testimony for a third time (Hyp. 2 Phil. 12). The third conviction rule is also listed among the cases that could bring disfranchisement (atimia) to citizens by Andocides in On the Mysteries 1.74.3 Concerning the certainty of the rule, Rubinstein notes: “It is hard to make sense of this passage unless we assume that the decision to testify was not always at the witness’s own discretion”.4 She also argues that the existence of exomosia and kleteusis may support 1

Todd 1993, 97. Calhoun 1916, 394. 3 For the explanation offered by Rubinstein that the specific rule was valid in cases where someone suffered a minor punishment twice, see Whitehead 2000, 70-71, with n. 107. For the third conviction leading to atimia, see also Lipsius 1905-1915, 783 with n. 20 and 877-878. Plato Laws 937c also states that a citizen who has been twice convicted for false witnessing cannot be forced to be a witness again and if he is convicted three times he cannot bear witness any longer, and if after three convictions he dares to bear witness he can be brought to a magistrate and put to death. 4 Rubinstein 2005, 107. 2

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the assumption that witnesses were put under pressure to commit themselves to a trial. Trials for false testimony could be initiated against witnesses who gave depositions in any trial, in both private and public cases.5 As it appears from the known trials for false testimony in Attic oratory, the procedure was particularly used in private rather than public cases, since there is only one attestation of a trial for false testimony deriving from a public case, Lys. Against Theomnestus 10.22-24, where Theomnestus was prosecuted for throwing away his shield, most probably at a dokimasia rhetoron, and was acquitted, and he then brought a trial for false testimony against the key prosecution witness, who was punished with disfranchisement (atimia). Following Scafuro’s list of false testimony trials, the majority derive from private cases, most of them from a diamartyria involving inheritance disputes,6 and two from trials for assault and damage (dike aikeias and dike blabes).7 On the preponderance of false testimony trials in inheritance disputes and xenia cases, Scafuro explains that these cases involve “status identification”, in which evidence from witnesses appears to be a key method of proof.8 In cases where evidence was essential to the decision, a dike pseudomartyrion may have functioned as a kind of “remedy”.9 On the other hand, accusations against witnesses in public cases were rare for the simple reason that witnesses may not have been merely from the inner circle of the litigants’ family and friends, but they would have been expected to be unknown and unidentified. Also, the decision in such cases of public concern and common interest could not be based solely upon the testimony of witnesses, since they usually involved accusations of misconduct, bribery, corruption, sycophancy, treason, etc. Moreover, litigants would have had the motivation to prosecute for false testimony in order to benefit in financial terms in private rather than in public cases, since the former involved them individually, but this was not the case in public trials where the interests of the city were at stake.10 5

Scafuro 1994, 172. Isaeus 2, 3, 6; [Dem.] 44; cf. Dem. 29. Further on the connection of dike pseudomartyrion with cases of diamartyria, see Harrison 1971, 128-131; Scafuro 1994, 172-173; Phillips 2013, 35. 7 [Dem.] 45 and 46 concern a trial for false testimony deriving from a dike blabes involving the recovery of the father’s estate, and [Dem.] 47 derives from a dike aikeias. 8 Scafuro 1994, 173-182. 9 Scafuro 1994, 173-182; Rubinstein 2005, 113. 10 For the different motivation in private and public trials, see Rubinstein 2005, 107ff. 6

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2. Dike pseudomartyrion and episkepsis Calhoun has thoroughly discussed episkepsis as the procedure used to bring a trial for false testimony; he argues that episkepsis was not a formal or written record of a case to be taken to court but was normally an oral challenge, which could be initiated at any time at the depositions of witnesses during the trial or just before the judges voted.11 A challenge could address both litigants’ witnesses and this would lead to a dike pseudomartyrion or a dike kakotechnion against the litigant(s) who had brought the false witness(es) to court. Ath. Pol. 68.4 refers to episkepsis as initiating a trial for false testimony after the ballots had been handed out to the judges and before the voting had begun. Since the decision in the original trial had not yet been made at the time of the episkepsis, the challenge to bring a dike pseudomartyrion was a risk, but it could influence the judges psychologically in favour of the litigant who had challenged the opponent’s witness(es) for false testimony, unless both litigants had made the same claim. If, however, the litigant who had initiated the episkepsis won the case, he would have no reason to continue with a dike pseudomartyrion.12 The general assumption is that the trial for false testimony was under the jurisdiction of the same magistrate who had presided at the original trial, but the judges were not the same, since the two distinct trials were most probably heard on different days.13 Ath. Pol. 59.6 says that cases which originated in the Areopagus and were followed by a trial for false testimony were brought to the thesmothetae.14 The precise process that followed an episkepsis cannot be known, because of a lack of clear evidence.15 The date when episkepsis was introduced is also unclear, but it may have been enacted after 403. The 11

Calhoun 1916, 365-394. For the implications of the episkepsis in relation to the decision-making process of the judges, see K. Papakonstantinou 2015, 168-171. It is to be noted, as Papakonstantinou indicates, that the litigant who brought a dike pseudomartyrion did not need to prove that his accusation of false testimony was true, but the one being accused of false witness had to prove that his testimony produced in the original trial was true. This may be taken to show that despite the risk for the litigant in suing his opponent’s witness(es) for false testimony, due to the fact that he could not have known the result of the trial, he was not in such a difficult position in the trial for false testimony as the alleged false witness was. 13 On this issue, see Harrison 1971, 46. 14 For an interpretation of Ath. Pol. 59.6, see Rhodes 1981, 668. 15 Calhoun 1916, 384-385. 12

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earliest evidence for episkepsis is the case of Isae. 5, which was heard in 389.16 Episkepsis was a necessary process to ensure that the deposition in dispute, upon which the trial of false testimony would be based, was recorded (the content of the deposition, the litigant who had allegedly produced the false witness[es], and the witness[es]). There is no evidence of written forms of episkepsis, but it is plausible that at some time after the 380s, when all depositions needed to be written and handed over to be filed before the trial, the challenge against the deposition of the opponent’s witness(es) may have been included in the written documents.17 As regards the question whether the episkepsis committed the person who made it to proceeding with the prosecution, Calhoun suggests that the trial for false testimony could either be dropped at any time without any consequences (such as a fine), might not take place at all, could be dropped just before going to court, or finally the opponents could reach a compromise before the trial for false testimony just before the final decision of the judges.18 On balance, episkepsis was an essential stage in securing the deposition in dispute and the witness(es) responsible for the illegality or falsity of the testimony, but it did not necessarily commit the litigant to proceed with a trial for false testimony.19 Episkepsis could be used at any time and in any case to prevent a litigant using false or illegal depositions and to provide the opportunity to reverse an unjust decision, particularly if it involved issues of status and identity.

16

For a more detailed discussion of the date of the introduction of episkepsis, see Calhoun 1916, 370-374. 17 For the use of episkepsis as a “prerequisite” of the trial for false testimony, see Calhoun 1916, 374-378. 18 Calhoun 1916, 381-382. 19 Nevertheless, there is also the view that an attack in court without a trial for false testimony afterwards might be considered as hybris; see Thür 2005, 162.

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3. Dike pseudomartyrion: consequences and anadikia (retrial) According to the speaker in [Dem.] 47.2, a witness who was found guilty of false testimony was severely punished. Apart from the punishment of a lying witness, the litigant who initiated the episkepsis and brought a dike pseudomartyrion aimed to overturn his conviction, because it was based upon illegal testimony, as indicated in [Dem.] 46.10. And the litigant who produced the witness who gave testimony contrary to the law was also liable to prosecution for the same reason. It is to be noted that the episkepsis did not annul the verdict given at the original trial, especially if it involved a monetary fine, as can be inferred from [Dem.] 47.49. ȉhe speaker had apparently been sentenced in the original trial to pay a fine, which had to be paid before the trial for false testimony. Similarly, it can be assumed that in inheritance disputes the decision also had to be pronounced before the trial for false testimony. Nevertheless, the verdict was suspended in cases involving the death penalty or disfranchisement or reduction from freedom into slavery until the trial for false testimony was completed.20 An important question concerns what followed if the prosecutor in a false testimony trial, who had been convicted at the original case, won and the witness(es) were found guilty of giving false testimony. Was there the possibility of an anadikia, a rehearing of the original trial? Two passages from the ancient sources refer to anadikia, but both are inconclusive. Firstly, Plato Laws 937c-d suggests that more than half of the evidence had to be proved false for a retrial of the original case to take place. Theophrastus’ scholion on this passage indicates that a retrial could take place only in cases which involved the death penalty, slavery or atimia. Secondly, Isaeus On the estate of Hagnias 11.46 suggests an opposite view, that the conviction of only one false witness was adequate for a retrial of the original case. This is rather unlikely, since private inheritance trials in particular would involve several witnesses, and only one witness would not be a proof of the falsity or illegality of the testimony produced in the original trial as a whole, unless there was one key witness to issues of identity and kinship.21 It is generally assumed that an anadikia could not take place immediately after a successful prosecution for false testimony. After 20 See Papakonstantinou 2015, 172-174. On the suspension of verdicts, see also Lipsius 1905-1915, 781; Leisi 1908, 125. 21 Harrison 1971, 161 n. 2 regards this possibility as unlikely; cf. also Edwards 2007, 191 n. 42.

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receiving compensation from the false witness (the amount of which had to be decided by the judges since it was an agon timetos), the successful prosecutor could then proceed with a case against his opponent, who had produced the specific witness at the original trial, by a dike kakotechnion. After that trial was completed, it may have been possible to retry the original case, particularly if the accused had been found guilty. Even if a long time had passed since the original trial, a dispute involving inheritance and status identification might be referred to a court for trial.22 Finally, Behrend argues that there may have been restrictions on the use of anadikia on the grounds that the Athenian legal system would have an interest in upholding court decisions and securing the forensic status of the litigants.23

4. False testimony trials and challenges 4.1. Demosthenes 45, Against Stephanus I and [Dem.] 46, Against Stephanus II These two speeches involve a dike pseudomartyrion, which originated in a dispute between Phormion and Apollodorus concerning issues of inheritance (specifically, the authenticity of a will). The background story is as follows. The banker Pasion had two sons by his wife, Archippe: Apollodorus and his underage son Pasicles. Before Pasion died, he had (according to Phormion) made a will in which he appointed Phormion, an ex-slave whom he had set free, as guardian (epitropos) of his younger son and arranged for him to marry Archippe with a dowry of two talents, an apartment building worth 1,000 drachmas and various other items of property. Apollodorus and his brother divided their remaining patrimony except for the bank and a shield workshop, which were hired out by Pasion to Phormion for a specific period of time. To begin with, each son received half of the rental, but when they divided the property, Pasicles took the bank and Apollodorus got the workshop. When their mother died, Apollodorus divided her inheritance and sued Phormion with the accusation that he owed him parts of his property.24 The case was first taken to arbitration, and Apollodorus was 22 Generally on anadikia in private trials, see Behrend 1975, 131-156; Papakonstantinou 2015, 159-193. 23 Behrend 1975, 139. 24 Dem. 45.3-7 describes the background of Apollodorus’ dispute with Phormion. Further on Apollodorus’ family and Phormion, see Scafuro 2011, 219-221.

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persuaded to accept 5,000 drachmas and withdraw the suit. But later Apollodorus sued Phormion again for the capital of the bank, demanding the return of the huge sum of 20 talents.25 Phormion countered with a special plea to bar action (paragraphe) and was acquitted. At that trial, Stephanus, Apollodorus’ cousin, was a witness for Phormion and confirmed his allegations about the existence of Pasion’s will. Subsequently, Apollodorus sued Stephanus for false testimony. Stephanus is said to have attested that Phormion had challenged Apollodorus to open the original will of Pasion brought by Amphias during the arbitration, if he did not accept the document enclosed in the echinos as genuine (§8). The challenge supposedly made by Phormion to Apollodorus is a key argument concerning the false testimony accusation. Apollodorus explains that challenges are necessary only when proofs cannot be presented in court (§§15-16). He then argues that his opponents referred to a challenge in order to fabricate Pasion’s will, so as to win the paragraphe case (§§17-19). Apollodorus’ argument, therefore, is not that he refused the challenge, but he focuses on the claim that the challenge was never made. Scafuro argues that Apollodorus’ legal strategy is to prove that both texts of Pasion’s supposed will are forgeries and therefore the challenge itself is a fabrication.26 For the purposes of their case, neither litigant explicitly says that the challenge was not accepted. The text of the testimony is skilfully misleading concerning the validity of the challenge (§8). The testimony does not mention whether Apollodorus accepted the challenge or not (§43). Apollodorus’ accusation of false testimony concentrates on the allegation that Stephanus could not have had any knowledge of Pasion’s will, since he was not present when the will, if there was a will at all, was written, and therefore the attestation to Pasion’s will is false (§§23-26). Moreover, Apollodorus attempts to prove that even if there was a will, this specific document could not have been genuine, since it grants a huge dowry to his mother and rents out the bank on terms unfavourable to Pasion’s sons (§§27-39). [Dem.] Against Stephanus II 46 was a second speech delivered and probably written by Apollodorus. It aims to strengthen the points stressed in Dem. 45 (a speech composed by Demosthenes),27 to establish in particular the accusation of Stephanus’ false testimony based on the argument that he did not know about Pasion’s will. Apollodorus uses laws to show that Stephanus’ testimony is illegal: firstly, his evidence is 25

Dem. 36.3, with Scafuro 2011, 216 n. 5. Scafuro 2011, 221-227. 27 For the authenticity of Dem. Against Stephanus I 45, see Scafuro 2011, 227-230. 26

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hearsay but not from a dead person or someone who is absent from the city, as prescribed by law (§8); secondly that he is using testimony in his favour that was forbidden by law (§10); thirdly, his testimony is contrary to the law (§§46.10-11); and finally, according to the inheritance laws Pasion could not have made a will.28 In conclusion, Stephanus is charged with false testimony not because he falsely stated that Apollodorus did not open the two copies of Pasion’s will, but because these two copies, according to Apollodorus, were forgeries and Pasion had not left a will.

4.2 [Dem.] 47, Against Evergus and Mnesibulus This speech was written by Apollodorus for a case of false witnessing, and the contested testimony involves a challenge to interrogate a slave woman under torture, about who struck the first blow in a fight that broke out between the unnamed speaker and Theophemus. The complex circumstances of the suit, as the speaker presents them, are as follows.29 When the speaker was nominated as a trierarch, he was compelled by the law of Periander and decrees of the Assembly to collect nautical equipment from the trierarch of the preceding year; one of these extrierarchs was a certain Theophemus (§§20-23). After a number of unsuccessful attempts, the speaker proceeded to collect the equipment from Theophemus at his home where, according to the speaker, Theophemus struck him (§§37-38). The trierarch prosecuted Theophemus by an eisangelia before the Boule, Theophemus was convicted and begged for lenient treatment, to hand in the ship’s inventory and submit the dispute about the assault to a private arbitrator of the speaker’s choice (§§41-44). Theophemus, however, then refused to submit to arbitration, and the speaker filed a case against him for assault (dike aikeias); Theophemus promptly filed a counter-claim alleging the same against the speaker (§45). The cases went before separate official arbitrators (§45): Theophemus, in the arbitration of his case against the speaker, challenged the speaker to accept his slave woman for questioning under torture (§5) and the speaker, in the arbitration of his case against Theophemus, challenged the latter to provide the slave woman for questioning under torture (§10). When it 28 For an analysis of the laws and the relevant arguments from probability, see Scafuro 2011, 270-273. 29 For an analysis of the procedures involved in the case as well as all the incidents that took place as they appear in the narrative, see Christ 1998, 536-537; Scafuro 2011, 290-297.

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was time for the official arbitrator’s decision, Theophemus entered a paragraphe and applied for a postponement under oath (hypomosia).30 By causing delays in the speaker’s pursuit of his case, Theophemus managed to have his case heard first, and the judges sentenced the trierarch to a large fine. The trierarch therefore brought a suit for false testimony against two witnesses who testified that Theophemus was ready to hand over the slave woman for questioning (§46).

5. Conclusions There seems to be a standard procedural pattern in the cases discussed: (a) a challenge takes place at an arbitration and the defendant convicted in the original trial is accused of not accepting the challenge; (b) a paragraphe is initiated by the prosecutor of the original trial to prevent his opponent from bringing the case into court first; (c) the defendant is convicted and then proceeds with a trial for false testimony against one or more of the opponent’s witnesses. Speakers in a dike pseudomartyrion focus on the concept of the law and the enforcement of justice against false witnesses. In the proem of Apollodorus’ speech Against Evergus and Mnesibulus (47.1-4), the prosecutor asserts his legal right to the dike pseudomartyrion and encourages the judges to use the law in order to be protected from the deception and fraud of false witnesses. Scafuro analyses the issue of the challenge as it works in Apollodorus ([Dem.] 47) and illustrates the ways in which the speaker attempts to manoeuvre the question related to the supposed false testimony produced by Evergus and Mnesibulus in the original trial.31 They are accused of lying when they attested that Theophemus had challenged the speaker at the arbitration before the original trial to accept the slave woman for questioning under torture—as it appears, the speaker was convicted on the basis of their testimony. The speaker does not explicitly say that he had refused the challenge, but rather emphasizes that the slave was never presented for torture. Similarly to Dem. 45, in speech 47 the challenge was never completed, since the speaker had not accepted it. In this speech, however, there is no evidence of the testimony attested for the challenge. The speaker argues that the 30 Scafuro 2011, 292-293 suggests that Theophemus may have filed his special plea (paragraphe) on the grounds that the speaker’s case against him had already been decided; now it would be postponed until the special plea was heard. 31 For a full discussion on the challenge as presented by the speaker, see Scafuro 2011, 295-297.

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challenge never occurred since the slave was never produced. On the other hand, the speaker says that he himself had challenged Theophemus to hand over the slave, but he never did (47.5, 6, 8-10, 40). It is possible that both Theophemus and the speaker challenged each other to offer the slave for torture to produce evidence about the first blow, neither challenge was accepted, and the slave was never presented for torture. The speaker makes use of arguments from probability to prove that Evergus and Mnesibulus lied; he argues that since the challenge was made at the arbitration many citizens, other than relatives, could have appeared as witnesses in court (47.11-12), that Theophemus could have brought the slave with him to the arbitration (47.13-15), and finally the fact that Theophemus and his false witnesses had blackmailed him to drop the false testimony case proves their guilt (47.64). The interesting issue in the dispute between Theophemus and the trierarch lies in the fact that we are dealing with double trials for assault, double arbitrations and possibly double challenges. Each trial for assault had to be heard separately, independently of the outcome of the first case that was heard. If the speaker won the false testimony trial, he would receive compensation from the witness, at least the same penalty that had been imposed on him, and he could proceed with a dike kakotechnion against Theophemus for producing the false witnesses.32 The speaker was obliged by law to bring two separate prosecutions for false testimony, one against Evergus and one against Mnesibulus, since each of the witnesses was tried at a different trial. If he won the first trial against Evergus, he could then proceed to the second trial against Mnesibulus having confidence that he would win that one as well, and would get more money. Finally, there was still his own trial for assault to be heard, and if he had won both cases of false testimony, and possibly the trial against Theophemus (dike kakotechnion), he would most probably win his own trial for assault. Of course, if he had lost one or more of the aforementioned trials, the final outcome would have been completely different. Even though Attic law permitted the speaker to initiate several different procedures in order to gain benefit or money and cause damage to his opponent, we cannot rule out the possibility that he might attempt to secure a retrial of the original trial for assault brought by Theophemus, with the prospect of further personal profit. There is no conclusive evidence about anadikia after a successful dike pseudomartyrion. The outcome for a victorious prosecutor included: (a) monetary compensation at least equal to the fine he had to pay from the original trial, and (b) the right to bring a dike kakotechnion against 32

Dem. 47.1; cf. Todd 1990, 36 n. 31; Scafuro 1994, 170 with 192.

Dike Pseudomartyrion

the litigant who had produced the false witness(es). The reopening of the case may have been possible if the original case involved severe punishment (i.e. death, slavery and atimia), and also in inheritance disputes where identification, status and kinship were crucial to the decision of the original trial.

39

CHAPTER 4 USE AND ABUSE OF EVIDENCE IN THE HERMS AND MYSTERIES CASES MARIA S. YOUNI

The extensive scholarship on the double scandal of the mutilation of the Herms and the profanation of the Mysteries1 has drawn attention to its political and religious aspects, and many points have been clarified.2 The legal aspect of the scandal, on the other hand, has benefited much less from scholarly attention, despite the unprecedented number of trials, death sentences, confiscations of property and self-exiles that took place during a very short period of time. The outcome of the trials was determined mainly by the evidence brought by denunciators, whose role in the evolution of the affair was decisive. The way denunciations were received and assessed by the Assembly, the Council and the courts shaped the Athenians’ perception of politics and religion for some decades, and had grave consequences on the Sicilian expedition and the Peloponnesian war. The aim of this chapter is to discuss the neglected legal aspect of the events of 415, focusing on the consequences of the numerous denunciations, and on the ways in which the evidence was used and abused. For this purpose, it is necessary first to establish the sequence of procedures before the Assembly, the Council, and the courts, combining the evidence of our two main sources, Thucydides and Andocides.3

1

Furley 1996 treats the two cases as separate, whereas for McGlew 1999 they are closely connected. For an informed discussion of whether or to what extent the two cases were connected, see Todd 2004. 2 For scholarship on the two affairs, see Hornblower 2008, 367-372. 3 Sequence of events in Dover 1970, 271-276.

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The news about the mutilation of the marble busts of Hermes on a summer morning of 415 created a great disruption in Athens.4 An impious act of such gravity was taken as a bad omen for the expedition to Sicily, but more importantly the large number of Herms damaged in one night raised suspicions that these were the workings of a conspiracy whose ultimate purpose was to overthrow the democracy.5 The Assembly issued a decree inviting anyone who had information about this affair or indeed about any other act of impiety which had been committed to come forward and speak. The decree guaranteed immunity to all informers, whether citizens, aliens or slaves.6 In addition, on Cleonymus’ proposal a reward of 1,000 drachmas was offered to anyone who would reveal the names of the perpetrators, and on Peisandrus’ proposal the reward for the first informer to appear was no less than 10,000 drachmas.7 The Assembly bestowed full power of investigation on the Council,8 and appointed a commission to inquire into the case.9 The evidence presented at first was about some previous mutilations made by drunken young men, but at the same time a new scandal was revealed.10 At a meeting of the Assembly convened a few days later to make the final arrangements for the Sicilian expedition, Pythonicus claimed that Alcibiades, one of the three generals leading the fleet to Sicily, made private performances of the Eleusinian Mysteries, and asked the Ecclesia to give immunity to the slave Andromachus, who was ready to give information.11 The prytaneis ordered all citizens who were not initiated in the Mysteries to leave, and went in person to fetch Andromachus; the slave denounced Alcibiades and nine more persons for performing celebrations of the Mysteries in private houses.12 Alcibiades denied all the charges and offered to stand trial (țȡȓȞİıșĮȚ) immediately, before going on the expedition;13 if 4

According to Thucydides, almost all the marble busts of Hermes on the streets of Athens were damaged. Andocides says that only the Herm in front of his house remained intact, but this is no doubt an exaggeration. On the form, function and history of the Herms, see Osborne 2010, 341-367; Kousser 2015. 5 Thuc. 6.27.3. Powell 1979; Furley 1996, 93-101. 6 Thuc. 6.27.2. Cf. And. 1.15. 7 Thuc. 6.27.2; And. 1.27-28, 40; Diod. 13.2.3. 8 ǹ੝IJȠțȡȐIJȦȡ: And. 1.15. 9 And. 1.14, 36, 40. 10 Thuc. 6.28.1. Cf. Plut. Alc. 19.1. 11 And. 1.11. 12 And. 1.12-14. 13 According to Thucydides 6.28.2, the matter was magnified by Alcibiades’ political enemies, who thought that if he were removed, they would obtain the direction of the people unhindered. They associated the affair of the mysteries with

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found guilty, he should be punished with death but, if acquitted, they should allow him to take the command.14 His political enemies, fearing the outcome of a trial at that moment, persuaded the Assembly to postpone the trial, on the grounds that the departure of the army should not be delayed. It was decreed that Alcibiades stand trial upon his return, but all the other persons should be put on trial immediately.15 One of them, Polystratus, was arrested and remanded in custody until trial; the dikasterion pronounced him guilty and sentenced him to death and confiscation of property. Polystratus was executed, while the remaining eight fled Athens and were sentenced to death and confiscation in absentia.16 Shortly afterwards, a metic named Teucrus contacted the Council asking for immunity in order to give some important information. The immunity granted, Teucrus denounced ten citizens and one metic as his accessories in the profanation of the Mysteries.17 Apart from his involvement in the Mysteries, Teucrus said he also had knowledge about the mutilation of the Herms and gave a list of 18 names.18 On this evidence the two affairs were connected even more closely and were interpreted as the workings of a large group with the intention of overthrowing the democracy.19 All the persons accused in relation to the Mysteries and many of those accused over the Herms fled the city before trial.20 The cases were heard by the court; all the accused were found guilty in absentia, and were sentenced to death and confiscation of property.21 Two more denunciations for the Mysteries followed, by a woman named Agariste and a slave named Lydus. The name of Alcibiades was brought up the mutilation of the Herms, and claimed that both were part of a conspiracy to overthrow the democracy, in which Alcibiades played the main role, as the “undemocratic” licence of his life and habits proved. Cf. Plut. Alc. 19.2, 20.3. MacDowell 1962, 190-194; Osborne 2010, 341-367. 14 Thuc. 6.29.1-2; Plut. Alc. 4-5. 15 Thuc. 6.29.3; Plut. Alc. 19.7. Hansen 1975, 77-79; Leão 2012, 187. 16 And. 1.13. IG I3 421.26-32, 422.220-221, 426.65-72 (Polystratus); IG I3 422.217219, 375-378, 428.9-10 (Ionias); IG I3 422.204-211, 426.53-64 (Panaetius); IG I3 422.216f. (Nicides). For corrections of names, cf. MacDowell 1962, 71-72. For an extensive commentary on the epigraphic evidence on confiscations, see Pritchett 1953; 1956; 1961; Lewis 1997; cf. Camp 1974. 17 And. 1.15. 18 And. 1.34-35. 19 And. 1.36: ੪Ȣ İ੅Ș IJ੹ ਩ȡȖĮ IJ੹ ȖİȖİȞȘȝȑȞĮ Ƞ੝ț ੑȜȓȖȦȞ ਕȞįȡ૵Ȟ ਕȜȜૃ ਥʌ੿ IJૌ IJȠ૨ įȒȝȠȣ țĮIJĮȜȪıİȚ. 20 And. 1.15 (Mysteries), 1.34-35 (Herms). 21 Thuc. 6.61.7. IG I3 421.10 (Hephaestiodorus, Mysteries); IG I3 421.34 (Cephisodorus, Mysteries); IG I3 422.229ff., 426.102-105 (Phaedrus, Mysteries); IG I3 422.223 (Eurymachus, Herms).

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again by Agariste, who testified that he performed the Mysteries at the house of Charmides along with some others.22 The persons incriminated by Agariste fled Athens; they were tried in absentia, found guilty and sentenced to death and confiscation of property.23 Lydus denounced an unspecified number of persons; only four of these are named by Andocides. These were impeached by Speusippus, a member of the Boule.24 All the accused escaped, except for Leogoras, Andocides’ father, who brought a successful graphe paranomon against Speusippus and had the decree against him annulled. All the others were found guilty by default, and were sentenced to death and confiscation of property. More than a month after the mutilation a citizen named Diocleides appeared before the Council claiming he was an eyewitness to the crime in which no fewer than 300 perpetrators were involved, and gave a list of the 42 persons he had recognized, including two members of the Council, Mantitheus and Apsephion25. A member of the zetetai, Peisandrus, moved to repeal the ban on torturing free persons and put the suspects on the wheel, “to ensure the discovery of everyone concerned before nightfall”; the Council accepted the motion by acclamation. The two councillors took refuge at the altar and begged not to be tortured, but to be allowed to post bail instead; as soon as their request was accepted, they escaped.26 Diocleides was crowned and honoured with a dinner at the prytaneion. Acting in secrecy, the Council ordered that the 42 persons on Diocleides’ list, including Andocides and many of his relatives and friends, be arrested and put to jail in bonds. On the next day Andocides asked the Council for an interview promising to reveal the names of the actual offenders, upon condition of immunity.27 Andocides admitted his involvement in the mutilation of the Herms and maintained that the real perpetrators were not the ones denounced by Diocleides, but those included in the list given by Teucrus, with the addition of four more citizens.28 The Council summoned Diocleides, who confessed he had lied and named two persons who had persuaded him to give false information.29 The persons arrested were released from prison, whereas Diocleides was put on trial; he was 22

And. 1.16 gives neither the names nor the number of the persons accused. And. 1.16. IG I3 422.191ff., 426.106-107, 141ff., 185-191 (Adeimantus); IG I3 422.193ff., 202ff., 424.10-16, 426.107ff., 125ff., 427.46-85 (Axiochus). 24 And. 1.17-18. Murray 1990. 25 And 1.37, 43. Dover 1970, 275: an interval of one and a half months between the mutilation and Diocleides’ information. 26 And. 1.44. 27 And. 1.48-51; Thuc. 6.60.3. 28 Thuc. 6.60.2; And. 1.48-50, 61-64. 29 And. 1.65. 23

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pronounced guilty of false denunciation, sentenced to death and executed, whereas the two instigators fled Athens.30 The four persons denounced by Andocides fled the city, were tried by default and sentenced to death and confiscation of their properties; furthermore, they were declared outlaws and a reward was offered to anyone who killed them.31 On the evidence of new denunciations orchestrated against Alcibiades after his departure by Androcles,32 an eisangelia was moved by Thessalus, son of Cimon, against Alcibiades, charging him with mocking the Mysteries in his house, where he played the role of the High Priest.33 The Assembly sent the sacred ship Salaminia to Sicily to summon him and some other incriminated soldiers.34 Alcibiades escaped to the Peloponnese; he was tried in absentia by a heliastic court which sentenced him to death and confiscation of his property.35 As the death penalty could not be carried out, Alcibiades was declared an outlaw in the whole of Greece (ਥȜĮȪȞİȚȞ Į੝IJઁȞ ਥȟ ਖʌȐıȘȢ IJોȢ ਬȜȜȐįȠȢ; ʌĮȞIJĮȤȩșİȞ İੁȡȖȩȝİȞȠȢ), his name was inscribed on a stele, and all priests and priestesses were ordered to curse his name.36 These extraordinary events not only sparked a political and religious crisis but also had a huge impact on the administration of justice. First of all, the number of persons who were incriminated by denunciators within a short period of time is unique in Athenian history; moreover, there was not even one verdict of not guilty. It is remarkable that the dozens of Athenian citizens sentenced to death and confiscation of property were denounced mostly by informers of lower legal status, which was very unusual, but this was not questioned by the Athenians who appeared unusually ready to 30

And. 1.66; Thuc. 6.60.4. Thuc. 6.60.4: ਥʌĮȞİ૙ʌȠȞ ਕȡȖȪȡȚȠȞ IJ૶ ਕʌȠțIJİȓȞĮȞIJȚ; And. 1.34, 49, 52-53, 59, 6768; SEG XIII 17, 89, 94. 32 Thuc. 6.61.1; Isoc. 16.7; And. 1.27. 33 Quoted by Plut. Alc. 22.3: IJ੽Ȟ ȝ੻Ȟ Ƞ੣Ȟ İੁıĮȖȖİȜȓĮȞ Ƞ੢IJȦȢ ਩ȤȠȣıĮȞ ਕȞĮȖȡȐijȠȣıȚǜ ‘ĬİııĮȜઁȢ ȀȓȝȦȞȠȢ ȁĮțȚȐįȘȢ ਝȜțȚȕȚȐįȘȞ ȀȜİȚȞȓȠȣ ȈțĮȝȕȦȞȓįȘȞ İੁıȒȖȖİȚȜİȞ ਕįȚțİ૙Ȟ ʌİȡ੿ IJઅ șİȫ, IJ੽Ȟ ǻȒȝȘIJȡĮȞ țĮ੿ IJ੽Ȟ ȀȩȡȘȞ, ਕʌȠȝȚȝȠȪȝİȞȠȞ IJ੹ ȝȣıIJȒȡȚĮ țĮ੿ įİȚțȞȪȠȞIJĮ IJȠ૙Ȣ Įਫ਼IJȠ૨ ਦIJĮȓȡȠȚȢ ਥȞ IJૌ Ƞੁțȓ઺ IJૌ ਦĮȣIJȠ૨, ਩ȤȠȞIJĮ ıIJȠȜ੽Ȟ Ƞ੆ĮȞʌİȡ ੒ ੂİȡȠijȐȞIJȘȢ ਩ȤȦȞ įİȚțȞȪİȚ IJ੹ ੂİȡȐ, țĮ੿ ੑȞȠȝȐȗȠȞIJĮ Įਫ਼IJઁȞ ȝ੻Ȟ ੂİȡȠijȐȞIJȘȞ, ȆȠȣȜȣIJȓȦȞĮ į੻ į઺įȠ૨ȤȠȞ, țȒȡȣțĮ į੻ ĬİȩįȦȡȠȞ ĭȘȖĮȚ઼, IJȠઃȢ įૃ ਙȜȜȠȣȢ ਦIJĮȓȡȠȣȢ ȝȪıIJĮȢ ʌȡȠıĮȖȠȡİȪȠȞIJĮ țĮ੿ ਥʌȩʌIJĮȢ ʌĮȡ੹ IJ੹ ȞȩȝȚȝĮ țĮ੿ IJ੹ țĮșİıIJȘțȩIJĮ ਫ਼ʌȩ IJİ Ǽ੝ȝȠȜʌȚį૵Ȟ țĮ੿ ȀȘȡȪțȦȞ țĮ੿ IJ૵Ȟ ੂİȡȑȦȞ IJ૵Ȟ ਥȟ ਫȜİȣı૙ȞȠȢ.’ 34 Thuc. 6.53.1. 35 Thuc. 6.61.7: Ƞੂ įૃ ਝșȘȞĮ૙ȠȚ ਥȡȒȝૉ įȓțૉ șȐȞĮIJȠȞ țĮIJȑȖȞȦıĮȞ Į੝IJȠ૨ IJİ țĮ੿ IJ૵Ȟ ȝİIJૃ ਥțİȓȞȠȣ; Plut. Alc. 22.5: ਥȡȒȝȘȞ įૃ Į੝IJȠ૨ țĮIJĮȖȞȩȞIJİȢ țĮ੿ IJ੹ ȤȡȒȝĮIJĮ įȘȝİȪıĮȞIJİȢ ਩IJȚ țĮIJĮȡ઼ıșĮȚ ʌȡȠıİȥȘijȓıĮȞIJȠ ʌȐȞIJĮȢ ੂİȡİ૙Ȣ țĮ੿ ੂİȡİȓĮȢ. Cf. Isoc. 16.46; Diod. 13.5.4; Corn. Nep. Alc. 4.5; IG I3 424, 27-30; Graf 2000. 36 Isoc. 16.9; Plut. Alc. 22.5; Diod. 13.69.2; Corn. Nep. Alc. 4.5. 31

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accept the truth of any information. What can be inferred with certainty from the sources is that all the persons incriminated by informers (with the exception of Leogoras’ successful graphe paranomon) were prosecuted; all the accused were found guilty; all were condemned to death and confiscation of their property; the majority of the accused fled Athens before trial and were therefore condemned in absentia; some (or perhaps all) of those who were sentenced by default were proscribed. On the other hand, information about the court procedure itself is disappointingly scarce. We can only be certain that the trials took place before the heliastic courts, as attested by references to dikasterion in the sources,37 but the number of dicasts who manned each court is not mentioned. Public cases of great importance were tried by a dikasterion of at least 1,000 citizens,38 but it is likely that in this case the number was larger, taking into consideration that Leogoras’ graphe paranomon against Speusippus’ decree was decided by 6,000 dicasts (although this number is certainly an exaggeration, as it is difficult to imagine that all 6,000 Athenians who had been selected by lot that year were present). Any Athenian citizen who had taken the dicastic oath was eligible for the courts that judged the Hermocopidae, but for the Mysteries only judges initiated into the Mysteries were eligible. The percentage of initiated citizens at Athens is unknown, but it is likely that the same judges participated in more than one of the courts trying persons accused of profaning the Mysteries, a fact that may have influenced the outcome. The names preserved on the confiscation inscriptions agree with the ones given by Andocides, but neither the exact number of the persons implicated in the scandal nor all the names are known, for Andocides avoids giving the lists of all the denunciations.39 For the Mysteries we know of 32 persons accused (ten denounced by Andromachus, 12 by Teucrus, four by Agariste, including Alcibiades who was also denounced by Andromachus, four by Lydus, and one more person, Theodorus, mentioned in Thessalus’ 37

And. 1.17 speaks of a dikasterion with reference to the persons denounced by Lydus, and a dikasterion tried Alcibiades by default (Diod. 13.5.4). I accept that this applied to all cases by analogy; cf. Hansen 1975, 76, 80. 38 As in Dem. 24.9 (Demosthenes considers this number to be twice the size of the standard court for public cases). Court composed of 1,500 dicasts: Plut. Per. 32; Din. 1.107; 2,000 dicasts: Lys. 13.35; 2,500 dicasts: Din. 1.52. 39 He gives the lists of Andromachus’ and Teucrus’ denunciations but not those of Agariste and Lydus. His lists also miss some persons. For the first denunciation by Andromachus, Andocides (1.13) gives a list of ten names, but he omits two names: Pulytion, in whose house the performance of the Mysteries allegedly took place (And. 1.12), and Polemarchus, Andromachus’ master. For these and for the part played by slaves, see Todd 2004.

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charge against Alcibiades). For the Herms, we know the names of 33 persons: the 18 denounced by Teucrus, 11 out of the 42 denounced by Diocleides, and four denounced by Andocides.40 Of the 32 denounced for the Mysteries, all but Teucrus, who was granted immunity, were impeached in court, and of the 33 known persons denounced for the Herms, the 18 on Teucrus’ list and the four denounced by Andocides were impeached in court. In sum we know the names of 54 persons who were prosecuted in court,41 but the number of prosecutions and trials was greater. It is certain that trials followed immediately after each denunciation42 and were completed before the end of the month Hecatombaeon.43 Therefore, during two months in the summer of 415/4,44 the zetetai, the Council and the Assembly convened successively, and the heliastic courts were loaded with dozens of public trials. It should be stressed that although denunciations were collective and several persons were accused of participating in the same crime, each defendant had a separate trial. This specific feature of Athenian trials was dictated by the rules of procedure before the heliastic courts, since it was practically impossible to deliver speeches, present evidence and vote for more than one defendant in one day.45 This principle was breached once, in the infamous case of the Arginusae generals, but this trial is an acknowledged paradigm of an illegal procedure in all its aspects.46 But nothing of the kind happened in 415, as attested by Thucydides’ casual mention of trials in the plural (țȡȓıİȚȢ).47 Among the procedures relative to the events, we may single out three trials of a different nature. First, the graphe paranomon brought by Leogoras against his prosecutor Speusippus; Leogoras won the trial and 40

List of names: Dover 1970, 276-280; prosopography: 280-288. Hansen 1975, 58 enumerates 48 trials. 42 Andocides stresses three times that the 18 persons denounced previously by Teucrus had already been tried before he made his denunciation: And. 1.52, 59, 67. Cf. Dover 1970, 281. 43 As Dover 1970, 274 observes, the rewards, which were given at the Panathenaea, would not have been paid unless the guilt of the men denounced was established by trial or “confessed” by flight. The Panathenaea celebrations were concluded on the 28th day of Hecatombaeon. 44 Scirophorion 415/4 and Hecatombaeon 414/3. On dates, see the reconstruction of the events by Dover 1970, 273-276; Hansen 1975, 74. 45 This important aspect of Athenian law is often ignored by scholars. Leão 2012 and Graf 2000 speak of two trials, one for the Mysteries and one for the Herms. 46 Xen. Hell. 1.6-7. For the trial, see Burckhardt 2000; Filonik 2013; Hamel 2015. 47 Thuc. 6.60.4: IJȠઃȢ į੻ țĮIJĮȚIJȚĮșȑȞIJĮȢ țȡȓıİȚȢ ʌȠȚȒıĮȞIJİȢ IJȠઃȢ ȝ੻Ȟ ਕʌȑțIJİȚȞĮȞ, ੖ıȠȚ ȟȣȞİȜȒijșȘıĮȞ, IJ૵Ȟ į੻ įȚĮijȣȖȩȞIJȦȞ șȐȞĮIJȠȞ țĮIJĮȖȞȩȞIJİȢ ਥʌĮȞİ૙ʌȠȞ ਕȡȖȪȡȚȠȞ IJ૶ ਕʌȠțIJİȓȞĮȞIJȚ. 41

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became the only man who escaped conviction for the Mysteries. Second, the trial of Diocleides for bringing false information, in which Diocleides was found guilty, sentenced to death and executed; Hansen includes this case in his list of eisangeliai,48 but it is clear that Diocleides’ trial was according to the law about false denunciations.49 Third, the trial which determined the adjudication of the rewards proclaimed for the first informers; as in all cases where there was more than one claimant, this trial was a diadikasia before the court presided over by the thesmothetae. According to Andocides, there were four claimants, among them two Athenian citizens, Pythonicus and Androcles, but the rewards were adjudicated to the two informers who had given the names of the persons accused, so that the slave Andromachus received 10,000 drachmas, and the metic Teucrus 1,000 drachmas.50 For denunciations the terms menysis, eisangelia and apographe are employed as synonyms, although with some nuances. Menysis is an overall term describing information on a criminal act, given to the Ecclesia, the Boule or a specifically designated commission51 during a state of emergency when democracy and public order were threatened. The informant, menytes, was usually (as Teucrus and Andocides) but not necessarily (for example, Diocleides) implicated in the crime. This term was not restricted to slaves or other persons of lower civic status;52 a citizen could also appear as menytes.53 A menysis was often accompanied by adeia, in the form of a decree of the Assembly or the Council granting immunity to an informer implicated in the criminal act in question. A menysis could be spontaneous, as in the case of Andromachus54 or the result of a decree calling for information on a specific incident, as was the case with Teucrus, Agariste, Lydus and Diocleides.55 The verb apographein is used in connection with the list of names given by the informers (apographe).56 Eisangellein seems to be preferred when the informant is a citizen, and is not used for slaves, 48

Hansen 1975, 82 no. 61 Cf. Harris 2021, 65-66, 71. 50 And. 1. 27-28, 40; Thuc. 6.27.2; Diod. 13.2.3. 51 Menysis (denunciation): And. 1.14 (Andromachus), 15 (Teucrus), 16 (Agariste), 16, 18 (Lydus), 23, 26 (Andocides). Menyein (to denounce): Thuc. 6.53.1; And. 1.13, 14 (Andromachus), 15 (Teucrus), 16 (Agariste), 17 (Lydus), 19, 20, 22, 29, etc. (Andocides). Menytra (the reward for denunciations): And. 1.27. 52 Despite Todd 1993, 187, 385. 53 Thuc. 6.27.2: ȝȘȞȪİȚȞ ਕįİ૵Ȣ IJઁȞ ȕȠȣȜȩȝİȞȠȞ țĮ੿ ਕıIJ૵Ȟ țĮ੿ ȟȑȞȦȞ țĮ੿ įȠȪȜȦȞ; And. 1.19, 20, 22, 23, 26, 29, etc. 54 Cf. also Plut. Per. 31.2; Lys. 13; Din. 1.95. 55 Cf. also Dem. 24.11. 56 E.g. apographein: And. 1.13 (Andromachus), 17 (Lydus). 49

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metics or women; for example, it is used for the citizens Pythonicus and Diocleides, but menyein is preferred for the slave Andromachus.57 Menyein also seems to be preferred when the informant presents a list with the names of the alleged perpetrators, whereas eisangellein appears as a broader term. What is important to note here is that eisangellein has two different meanings, that is “to denounce” or “to initiate the procedure of eisangelia in court”, and that in Andocides’ narration of the events it appears as a synonym for denunciation.58 The earliest known instance of menysis is the one against Pheidias. Menon, an assistant of Pheidias, took a suppliant’s seat in the market place and demanded immunity from punishment in order to bring information against Pheidias. The sculptor was charged with embezzlement by a decree of the Assembly but was acquitted at the trial.59 A similar situation is described in Lysias 13. In 405 Theocritus, a slave, came before the Boule and gave information (menysis) on some persons conspiring against the treaty with Sparta. He said he was bound by oath not to reveal the names, but Agoratus instead was willing to do so. Some members of the Boule were dispatched to arrest Agoratus, who was eventually brought before another session of the Boule and gave a list of names.60 Another instance concerns the Harpalus affair; Dinarchus (1.95) accuses Demosthenes of bringing a false informer forward at the Assembly and priming him to say there was a plot against the dockyards. Dinarchus’ claim that Demosthenes failed to make any proposals about these matters means that the citizen who sponsored the informant was expected to accuse specific persons and propose a decree of prosecution. Finally, a procedure very similar to the one followed in 415 is reported by Demosthenes 24.11 from the middle of the fourth century, concerning some trierarchs who were holding public property. A decree was voted by the Assembly on the proposal of Aristophon to elect a commission of zetetai, designated to receive denunciations (menyseis) about any person who illegally possessed public money. Then Euctemon denounced two trierarchs (emenysen) to the Boule for illegally possessing public property. The Boule prepared a probouleuma and sent it to the Assembly, which voted to put the proposition to discussion. 57

And. 1.27, 43. Harris 2021, 64-68. Hansen often confuses denunciations with impeachments and trials. In 1975, 74 (no. 11) he lists the first denunciation of Alcibiades by Andromachus as an eisangelia but admits that the case did not go to court. Although denounced at least twice, Alcibiades was impeached once, cf. MacDowell 1962, 73; Bauman 1990, 64. 59 Plut. Per. 31.2-4. 60 Menyein: Lys. 13.19, 21; menytes: Lys. 13.2, 18; menysis: Lys. 13.22, 32. 58

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Concerning the court procedure employed against the Hermocopidae and performers of the Mysteries in 415, most scholars follow Hansen in considering that the trials were conducted by eisangelia. This view was recently challenged by Harris, who offers a number of sound arguments against Hansen’s thesis.61 Hansen is based mostly on the mentions of the word eisangelia in Andocides, but as we saw above, all of these instances actually refer to denunciations, not to the initiation of court procedure. One important point made by Harris is that the charges do not fit the categories of the nomos eisangeltikos as quoted by Hyperides in the fourth century, where all categories refer to political crimes.62 The scandals of 415 clearly had a political aspect, as they were connected in the Athenians’ minds by the same alleged motivation, namely, a conspiracy against the democracy.63 The fear of a coup, whether or not as a result of manipulation by opportunistic politicians, was, however, real, so much so that the Council summoned the generals and ordered the people to assemble in the Theseum with their arms, and the Councillors were notified to sleep on the Acropolis.64 But it is beyond any doubt that the formal charges against the accused were profanation of the Mysteries (ਕıİȕİ૙Ȟ ʌİȡ੿ IJ੹ ȝȣıIJȒȡȚĮ or ਕıİȕİ૙Ȟ ʌİȡ੿ IJઅ șİઅ) or mutilation of the Herms (ਕıİȕİ૙Ȟ ʌİȡ੿ IJ੹Ȣ ਬȡȝ੹Ȣ).65 The problem is that impiety is not included in the crimes prosecuted by the nomos eisangeltikos, and no other instance of impiety is known to have been prosecuted by eisangelia. On the other hand, the text of the indictment against Alcibiades recorded by Plutarch Alc. 22.3 expressly states that Thessalus İੁıȒȖȖİȚȜİȞ Alcibiades ਕįȚțİ૙Ȟ ʌİȡ੿ IJઅ șİȫ, and although we may question the reliability of the passage, dismissing the 61 Hansen 1975, 74-82 nos 11-60. Filonik’s 2013 statement that the procedure was eisangelia initiated by graphe will not stand. Contra Rubel 2014, who however does not explain why, and more significantly Harris 2021. 62 Harris 2021, 64-68. 63 According to all the sources Alcibiades was accused of an attempt to overthrow the democracy: Thuc. 6.27-28, 61.1; Carey 2004, 128. According to Isocrates 16.6, Alcibiades’ enemies combined the two charges that would enrage the people the most, namely profanation of the Mysteries and conspiracy against the democracy. Cf. Diod. 13.5.1; Corn. Nep. Alc. 3.6. 64 And. 1.45; Thuc. 6.61.2. 65 Thuc. 6.53.1; IG I3 422.226-227: IJİࡿȚ ਕıİȕ[İ઀ĮȚ IJİࡿȚ ʌİȡ੿ IJ੹ ȝȣıIJ]/੼ȡȚĮ; IG I3 427, 1: [IJȠࡿȞ ʌ]İȡ੿ IJ੹ [ȝȣıIJ੼ȡȚĮ ਕ]ıİȕİı[੺ȞIJȠȞ ---]. IG I3 426.100-102: ȝȚıșંıİȢ ႙Į઀įİ țҕ[ĮIJİ]ȕȜ੼șİıĮȞ/ IJȠࡿȞ ਕıİȕİı੺ȞIJȠ[Ȟ ʌİȡ੿] IJઁ șİં/ ĭҕĮҕ઀ҕįȡȠ IJȠࡿ ȆȣșȠ[țȜ੼ȠȢ] ȂȣȡȡȚȞȠı઀Ƞ. Cf. 426.177-178: [IJȠࡿȞ ਕ]ıİȕİı੺ȞIJȠȞ ʌ[İȡ੿ ---]/ [ȃȚț઀]įȠ IJȠࡿ ĭȠȚȞȚț઀į[Ƞ ȂİȜȚIJ੼ȠȢ]. Plut. Alc. 22.3: ਕįȚțİ૙Ȟ ʌİȡ੿ IJઅ șİȫ. Both crimes: IG I3 426.78-79: Ǽ੝ijȚȜ੼IJȠ IJȠࡿ ȉ[ȚȝȠș੼Ƞ ȀȣįĮșİȞĮȚ੼ȠȢ]/ ʌİȡ੿ ਕȝijંIJİȡĮ; 83-84: ĭİȡİțȜ੼ȠȢ IJȠࡿ ĭİҕ[ȡİȞ]ȚțĮ[઀Ƞ ĬİȝĮț]੼Ƞ[Ȣ]/ ʌİȡ੿ ਕȝijંIJİȡĮ.

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entire text as a forgery would probably be going too far. Furthermore, the emergency of the situation, the extraordinarily public aspect of the cases and their important political implications are features appropriate to eisangelia, thus it cannot be excluded as an option, given our ignorance about its form in the fifth century. In fact, our knowledge of the nomos eisangeltikos is based solely on Demosthenes, Hyperides and Lycurgus, dating some 80 years after the trials of 415—not to mention much later lexicographers—and all attempts at tracing the evolution of this law are purely speculative. The entire discussion about the origins of eisangelia depends on one passage in the Athenaion Politeia (8.4), stating that Solon provided for eisangelia before the Areopagus against subverters of the demos, and there is no certainty that there was in 415 a statute similar to the one quoted by Hyperides (4.7-10), which strictly prescribed and enumerated the offences addressed by eisangelia. Apart from eisangelia, the Athenians used a wide range of procedures to ensure that all cases of impiety were prosecuted in court.66 Moreover, the Ecclesia as sovereign was free to create special procedures at will, at any time and in any expedient way. The involvement of the Assembly, the Council and the commission of zetetai, the immediate arrestations of the accused, the imprisonment in bonds of those denounced by Diocleides, which was normally a feature of apagoge, and the statement of Andocides 1.17 that Speusippus delivered the persons denounced by Lydus to the court in his capacity as councillor, show that the extraordinary cases of 415 were of the utmost public interest, and the introduction of an ad hoc procedure might be the answer to the riddle of the procedure employed. There is no need to stress the impact of the evidence given by witnesses on the outcome of the trials, but although we have detailed information about the denunciations made in the Assembly and the Council, our sources are silent about the way this evidence was used in court. We may presume that the same persons who presented themselves as denunciators appeared also in court to testify about what they knew. Significantly, the legal status of most informers was unusual if not incompatible with Athenian judicial practice, since four out of six were of lower legal status (two slaves, one metic and one woman). Normally women did not testify in court,67 and the testimony of slaves was inadmissible unless given under torture, on the basis

66 Dem. 22.27 with Carey 2004, 126-128; cf. Parker 2005, 64-66; Phillips 2009, 408411. 67 Harrison 1971, 136-137; Todd 1993, 96. On women’s capacity to testify in homicide cases, see the discussion in MacDowell 1963.

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of proklesis eis basanon.68 By contrast, in 415, due to the decree inviting any kind of information, the evidence of slaves was given equal weight to the evidence of citizens. It seems that the Athenians, who were so consistent about the importance of citizen witnesses, this time made a disastrous exception to their principles. At the same time, many slaves were involved as witnesses under torture, especially about the performances of the Mysteries in private houses, where slaves were in a position to give the most accurate description of what they had seen.69 Andocides (1.64) states that after his own denunciation to the Council, the prytaneis arrested the womenservants in the house(s) which the criminals had used as their base, and no doubt had them tortured to reveal what they knew about the mutilation. We may ask why so many men were convicted on evidence given not by citizens but furnished by slaves, metics and women. It seems that there was a general hesitation about giving information among Athenians, and the extremely high rewards that were offered were intended to elicit denunciations. On the other hand, of the two Athenian informers, Diocleides proved unreliable, since only a few days later he confessed he had lied under the influence of two persons. This outrageous case of false denunciations did not alarm the Athenians, nor did it prompt a more careful scrutiny of the events. As for the information given by Andocides, the words of Thucydides (6.60.2) are telling: “whether true or not is a matter on which there are two opinions, no one having been able, either then or since, to say for certain who did the deed”. Significantly, the Assembly, the Council and the courts accepted all the evidence at face value with unusual haste and readiness, without testing its reliability at all, and the informers’ motives appeared to be of no concern to the demos. All relevant sources show that the Athenians seemed prepared to convict anyone brought before them without further investigation of the accusations. Thucydides is revealing when he states that “the Athenians, 68

Thür 1977. By that time, however, evidentiary torture had become predominantly a legal fiction rather than an actual practice, so that it was in fact never carried out: Gagarin 1996; Todd 1990, 33-34. 69 And. 1.22, 64. In both cases torture of slaves was held during the inquiry, not as a means of proof in court, although this was probably used also in court later. According to Harrison 1971, 150, the testimony of And. 1.64 shows that in exceptional cases of public danger magistrates could compel masters to surrender their slaves for examination under torture. Cf. Lipsius 1905, 894-895; MacDowell 1962, 79. According to Bauman 1990, 64-65, the need for servile evidence was one of the reasons for bringing katalysis tou demou into the picture and treating the mutilations and the Mysteries as evidence of a conspiracy to overthrow the democracy, but And. 1.22 implies that slaves could be tortured without their master’s consent to give evidence for public cases in general.

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instead of testing the credibility of the informers, in their suspicious temper welcomed all indifferently, arresting and imprisoning the best citizens upon the evidence of rascals, and preferring to sift the matter to the bottom sooner than to let an accused person of good character pass unquestioned, owing to the rascality of the informer”.70 Diocleides appeared before the Boule to give information about the mutilation of the Herms more than a month after the incident, during which time, according to Andocides, he had tried to blackmail some of the participants in the crime, asking for a larger sum of money than the official reward. The inquisitors, however, did not undertake a serious investigation of this suspicious delay or of Diocleides’ motives. At the same time, the fundamental principle that prohibited torture of persons of free status was called into question. The physical integrity of free persons, and above all of citizens, was one of the prevailing values in ancient Greek law and society, and therefore torture or penalties affecting the body were strictly forbidden for free persons and were authorized only for slaves.71 In Athens, this principle became part of the city’s written legislation in the archonship of Scamandrius, at the end of the sixth century.72 This law came close to being suspended when Peisandrus proposed that the citizens denounced by Diocleides be put to the wheel in order to expedite the revelation of the perpetrators, and many Councillors started shouting in favour of the proposal, at least according to Andocides.73 The inversion of the principle in this case is significant: on the one hand, denunciations by persons of lower status were given credit immediately, and it is very likely, as I suggested above, that slaves gave testimony in court without being tortured; on the other hand, the Council envisaged the possibility that Athenian citizens be subjected to torture, breaching one of the pillars of Athenian democratic ideology. An important albeit overlooked parameter of the trials of 415 is the large number of persons convicted by default. The fact that the great majority of the accused escaped before trial raises questions about the form of the procedures that led to convictions in absentia, and about the way evidence 70

Thuc. 6.53.2; cf. And. 1.36. Cf. Lys. 13.27 (Athenian citizens were not afraid they would be tortured); 13.59 (the Assembly passed a decree to torture Aristophanes of Cholledae because they thought he was not Athenian). 72 MacDowell 1962 on Myst. 1.43; Sickinger 1999, 54 and n. 82. 73 In general, Andocides’ report is subjective and should be taken with a pinch of salt, but he could not lie about an issue as serious and memorable as the proposal to suppress the law on torture. The examples of persons tortured in connection with public criminal investigations given by Bushala 1968, 63 n. 10, do not concern citizens: Antiphon in Dem. 18.132-133 was rejected from the list of citizens and Aristophanes in Lys. 59-60 was thought to be an alien. 71

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was used. Since only the courts and the Assembly had the power to pass sentences of death and confiscation of property, we must assume that formal convictions were passed by default, but there is no information about the details of the procedure in such cases.74 The procedure was no doubt summary, since an absent defendant could neither speak in his defence nor furnish witnesses or other forms of evidence, thus only the prosecutor’s voice was heard. The severe sanctions imposed on the accused illustrate a state of panic. There was an abuse of both the death penalty and total confiscation of property, since the number of convictions issued in this short period was apparently the largest in Athenian judicial history. Furthermore, the Assembly provided for additional measures against those who had escaped execution by declaring them outlaws, having their names written on a pillar as guilty before the gods, and offering rewards of one talent for killing each one of them.75 These excessively high rewards probably had a symbolic rather than practical value, considering the effect of eventual payments on the public treasury; and hardly any Athenian would pursue and kill an exiled citizen when there was widespread uncertainty about who was actually guilty. Proscription was applied against persons who had escaped trial or execution, not against persons who were present and could stand trial.76 In this, it was a supplementary measure used as a substitute for the death penalty. Apparently, this measure was applied for the first time to the exiles of 415, and this paved the way for the law of Demophantus a few years later, by which anyone who attempted to subvert democracy was outlawed.77 The very first denunciations which came to light about vandalisms of statues committed by drunken youths attest that similar acts were not new to Athens; therefore, the mutilation of the Herms by itself would not inevitably have led to a crisis of such importance. As for the private performances of the Mysteries, they would probably have remained private in the libertine context of the symposia had they not coincided with the mutilation of the Herms. It was the connection and manipulation of two at first sight irrelevant acts of impiety, and their political exploitation that challenged the religious sensitivity of Athenian society and triggered a general intolerance against anything that could be construed as an insult to the religion of the polis. It is not a coincidence that in the same year the poet 74 Harrison 1971, 102 says dryly that when the defendant failed to appear at the anakrisis, he lost his case. 75 Thuc. 6.60.4; And. 1.51; Lys. 6.18. Hansen’s statement (1975, 76, 78) that death sentences were commuted to exile is contradicted by the sources. 76 Youni 2001. 77 Youni 2018.

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Diagoras of Melos was proscribed for having parodied the Eleusinian Mysteries.78 The absence from Athens of an important part of the active citizens, as more than 5,000 Athenians participated in the expedition to Sicily, facilitated the intimidation of public opinion and the manipulation of the Assembly and the courts. That the Athenian society was undergoing a period of deep crisis has been underlined by many scholars; the dozens of prosecutions and trials, the death sentences passed against a large number of citizens, all members of the wealthy aristocratic circles, and the sales of the confiscated properties played a significant role in the agitation. Admittedly, the tension was soon reduced, when the persons sentenced to death in absentia returned to Athens, the proscriptions against them apparently remained inactive, and the grave sanctions against Alcibiades were annulled when he returned to the command of the Athenian fleet at Samos and helped to restore the democracy in Athens.79 But these inconsistencies only perpetuated the general uncertainty about the true offenders,80 and injured deeply the reliability of the administration of justice, considered by the Athenians as the cornerstone of their democracy. And of course, the impact of the mutilation of the Herms and the private representations of the Mysteries on the Sicilian expedition was disastrous, and foreshadowed the outcome of the Peloponnesian war.

78

Aristoph. Birds 1071-1073, cf. Clouds 830; Lys. 6.17-18; Craterus FGrH 342 F 16. 79 The stele recording Alcibiades’ proscription was thrown into the sea and the priests and priestesses were ordered to withdraw the curses against him: Diod. 13.69.2; Plut. Alc. 33.3. See Lewis 1997, 158-159. 80 Thucydides more than once in his narrative comments that after the affair was over it was still entirely unclear whether the sufferers had been punished unjustly: 6.60.2, 4-5, 61.1.

CHAPTER 5 RESHUFFLING THE EVIDENCE: A READING OF DEMOSTHENES 54 AGAINST CONON VASSILIS LENTAKIS

The so-called “artless proofs”, in the hands of a shrewd litigant or speechwriter, may involve considerable art. I shall focus on the manipulation of the evidence, both by the accuser and the defendant, in Demosthenes’ speech Against Conon. The matter has already been dealt with by Professor Carey in his commentary on the speech (in collaboration with R. A. Reid), as well as in his seminal article about the uses of atechnoi pisteis in the Attic orators.1 If I reopen the case, it is because I think that Demosthenes’ account offers itself to a different line of enquiry. A young Athenian, Ariston, sues Conon for assault (aikeia).2 While taking his customary evening stroll in the Agora, he is ambushed and brutally attacked by Conon, his son Ctesias, and other members of their company. The motive, he implies, is revenge. Some time ago, Ariston and his tent-mates, while serving on garrison duty in Panactum (a fortress at the border between Attica and Boeotia), denounced Conon’s sons, Ctesias included, for insulting and violent behaviour towards their servants and 1

Carey and Reid 1985; Carey 1994a. The trial has been dated to either 355 or 341; see Carey and Reid 1985, 69: “The only honest conclusion is: non liquet”. However, on grounds of prosopography, I find the later date more probable. In §7 a ĭĮȞȩıIJȡĮIJȠȢ ȀȘijȚıȚİȪȢ is mentioned; he is contemporary (ਲȜȚțȚȫIJȘȢ) with the speaker, i.e. in his early twenties. He must be the grandson of ĭĮȞȩıIJȡĮIJȠȢ I (Davies 1971, 563). His father, ȋĮȚȡȑıIJȡĮIJȠȢ, was born c. 390 (Davies 1971, 564). If the earlier date for the speech is adopted, it would mean that ȋĮȚȡȑıIJȡĮIJȠȢ begot his son in his early teens, which is of course unlikely. For a fuller discussion, see Lentakis 2018, 21-23.

2

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themselves. The very same night Conon’s sons jumped into Ariston’s tent and ended up by beating him. He could very well have sued them; but he is a quiet and shy young man, so he just resolved to keep away from such characters (§§3-6). It was not to be. During his evening walk he crosses paths with Ctesias who is in his habitual state, i.e. blind drunk. There is no exchange of blows or words. Ctesias mumbles something unintelligible and rushes to the nearby quarter of Melite, where his father and his mates had been drinking at a fuller’s workshop, and fetches them as reinforcements. For a long period after the beating, Ariston hangs between life and death (§§7-12). Conon’s version of the story is quite different. While returning with his friends from a dinner, they fall upon Ctesias and Ariston fighting in the Agora. Conon did not even touch Ariston; he has nothing to do with the case (§31). Both his son and Ariston belong to informal associations, as many upper-class lads do. They assume fancy names, borrowed from the phallic ritual of Dionysus, and they often quarrel over courtesans.3 This is a trivial issue, very common among men of this age. Giving and receiving blows is part of the game; if Ariston makes a fuss, it is because he is arrogant, sour, litigious and lacks common sense: it was all a joke (§§13-14). We do not know how the defendant counters Ariston’s claim about the seriousness of his injuries. He might have countered that Ariston is exaggerating his condition or that his subsequent illness was not the outcome of the blows exchanged with Ctesias. As was normal for most private cases, the issue was submitted initially for arbitration. And this is the nub of the question. Anyone unaware of certain basic rules of Athenian legal procedure would never have guessed from Demosthenes’ account that Ariston had initially lost the case; in other words, he did not receive monetary compensation. Otherwise, he would not have had any reason to appeal for a secondary hearing in court. We know that the right to appeal was open to either of the litigants. It is, however, very unlikely that the appeal was made by Conon; if the arbitrator’s verdict was against the defendant, Ariston would not have missed the opportunity of referring to it or, even better, of quoting it verbatim (cf. Isae. 12.11). Before the possible reasons for Ariston’s defeat are explored, it should be 3 Ariston’s strong protestations (“may these names fall on Conon’s and his sons’ heads”, §16) suggest that he was included by Conon in these groupings, perhaps as a member of the ǹ੝IJȠȜȒțȣșȠȚ. On the much-debated meaning of this word—“poor” or “satyrs”?—I subscribe to the latter view. Athenaeus (14.621f), discussing the various names of the Dionysiac phallic associations, couples ੉șȪijĮȜȜȠȚ with ǹ੝IJȠțȐȕįĮȜȠȚ, while in Lucian (Lexiphanes 10) ǹ੝IJȠțȐȕįĮȜȠȚ are coupled with ǹ੝IJȠȜȒțȣșȠȚ.

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pointed out that the litigants, at the secondary hearing of the case, had to rely exclusively on the evidence invoked during the arbitration. Every piece of evidence was put into sea-urchin shaped urns (echinoi), together with the arbitrator’s verdict, and sealed until the trial ([Arist.] Ath. Pol. 53.1-2). Hence the difficulty of the case. Demosthenes’ task is rather tricky; he has to construe the same evidence (which led to the initial defeat of his client) in a new, different way, IJઁȞ ਸ਼IJIJȦ ȜȩȖȠȞ țȡİȓIJIJȦ ʌȠȚ૵Ȟ. In order to appreciate best the orator’s strategy, we should first tackle the following question: why did Conon win the arbitration? It has been suggested that Ariston, although he had witnesses for his state after the beating, did not have eyewitnesses for the beating itself.4 This assumption is based on the fact that in §9 neither the names of the witnesses nor the content of their deposition are mentioned; the names are given much later, in §32, and Ariston just paraphrases the testimony; he carefully avoids quoting it verbatim. Why, however, should the names of the witnesses be mentioned in §9? They would be heard by the jurors at the beginning of the testimony, as the clerk of the court read it aloud for them. The same applies to the content of the deposition. Why should the speaker paraphrase the testimony at this point? It would be rather tedious and ineffective just after his own detailed account. If he does so in §32, it is in order to remind the jury of its content and to enable them to compare it with the deposition of Conon’s witnesses. According to Carey and Reid, nowhere is it suggested that Ariston’s witnesses actually saw the fight. Yet in §32 Ariston says that his witnesses have explicitly stated that they saw him being beaten by Conon (įȚĮȡȡȒįȘȞ ȝİȝĮȡIJȣȡȒțĮıȚȞ ੒ȡ઼Ȟ ਫ਼ʌઁ ȀȩȞȦȞȠȢ IJȣʌIJȩȝİȞȠȞ ਥȝȑ). ǿ would find it rather risky for him to distort the content of his supporters’ deposition while at the same time claiming that he is conveying their words faithfully. I do not therefore think that the phrase İੁ ȝ੽ ਦȫȡȦȞ ʌİʌȠȞșȩIJĮ, following four lines below, implies that his witnesses saw him after he was beaten; a speechwriter of Demosthenes’ calibre would not have been so careless as to contradict himself within the same syntactical period. The present perfect tense (ʌİʌȠȞșȩIJĮ) implies that Ariston’s supporters witnessed not only his beating but also its immediate consequences; if the victim’s injuries were minor ones, the passers-by would not have taken the trouble of involving themselves in a time-consuming and possibly dangerous affair. If Ariston’s account of the arbitration (§§26-37) is taken at face value, it is hard to see why he lost the case. What emerges from the narrative is that Conon did not have at his disposal any witnesses to testify in his favour and he exhausted every possible means to cause delay. To begin with, he 4

Mensching 1963, 308-309; Carey and Reid 1985, 70-72.

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compelled Ariston’s supporters to take an oath one by one, thus gaining time; he presented evidence absolutely irrelevant to the case in hand; he refused to read aloud his own testimonies. His antics caused indignation to everybody present; even Conon ended up hating himself. The procedure dragged on well after midnight. When Conon realized that he had run out of excuses and the arbitrator was about to pronounce his verdict, he resorted to the classic trick of challenging his opponent, by declaring himself willing to produce his slaves for torture as witnesses for the beating. Ariston declined the challenge to torture on the grounds that the defendant should not have made use of this judicial means at the last moment, just before the urns were sealed, but well in advance. And then Conon at last produced the testimony he needed. It was signed by persons notorious for their morals; in fact, they were common criminals: bullies and burglars. And, in contrast to Ariston’s witnesses, who were passers-by and strangers to him, and so did not have any reason for risking the accusation of false testimony (pseudomartyria), Conon’s men were his hetairoi; in other words, they were members of his club. An alternative term for these associations was synomosiai, and their role, as Thucydides (8.54.4) puts it, was to offer mutual support for trials and elections to office (ਥʌ੿ įȓțĮȚȢ țĮ੿ ਕȡȤĮ૙Ȣ). If, then, it had become apparent that Conon was striving to find witnesses until the last moment, why did the arbitrator change his mind in favour of a person who had caused so much irritation? I submit an alternative reading of the story. If Conon did not have witnesses at his disposal, he could very well have feigned illness on that day and asked for an adjournment. This was standard procedure and it would have cost him just an extra drachma as a supplementary fee to the arbitrator (Harpocr. svv. ʌĮȡȐıIJĮıȚȢ and ਫ਼ʌȦȝȠıȓĮ). Why should he risk irritating him? It is also hard to believe that Conon, a shrewd and experienced fellow, as Ariston presents him, came to the arbitration totally unprepared. Far from it. I suspect that Conon adopted a rather clever strategy. At the beginning of the arbitration he pretended to lack witnesses, thereby fostering in his opponent the illusion that the case could be easily won. Thus, Ariston declined Conon’s challenge light-heartedly, and his reasoning for it was completely insubstantial, for Conon’s move was perfectly within the limits of the law; the challenge would have been unacceptable only if submitted after the urns were sealed. We know from another case of aikeia that a litigant lost because he failed to comply with the challenge to torture made by his opponent ([Dem.] 47.7). Ariston’s offhand rejection of the offer raised the suspicion that he had something to hide. It was then that Conon produced his witnesses, capitalizing upon the impression created by Ariston’s refusal. It is also likely that Conon proceeded to a second challenge, that is, a

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challenge to take an oath (proklesis eis horkon).5 In §41, Ariston says “I wanted to take this oath back then too” (țĮ੿ IJȩIJİ); combined with his specious argument in §40 that “someone who does not take even an honest oath is more credible than someone who is prepared to swear upon the lives of his own children in a way contrary to your custom”, this makes me think that during the arbitration Ariston turned down Conon’s proposal to take an oath. Conon, then, played his cards cleverly and won, by relying not just on the “artless proofs”, i.e. the testimonies, the challenges and the oaths, but also on the cumulative effect they would produce if presented in the right order and at the right moment. By what means does Demosthenes attempt to tip the scales? To begin with, by presenting his client as a victim not only of assault but also of humiliation (hybris)—a crime far more serious, affecting not just the individual but also the community and incurring even the death penalty. This technique of auxesis or deinosis had already been applied in similar cases of aikeia by Lysias (Against Teisis, frr. 278-279 Carey) and Isocrates (Against Lochites). Conon’s act is not seen as an isolated, accidental event; it is the outcome of his hybristic personality. The defendant represents the type of person who, as Aristotle (Rh. 2.2.5-6, 1378b23-29) puts it, takes pleasure in humiliating his fellow beings, because in this way he feels superior. The same goes for his sons: the spitting images of their father, they are violent, insolent, debauched and drunkards. Following the example of Conon, they belong to antisocial aristocratic clubs, participate in homosexual orgies and parody mystery rites (§17). These kinds of activity, as the case of Alcibiades showed (Thuc. 6.28), were regarded with suspicion, fear, hysteria even; they were perceived as a menace towards democracy.6 The conservatism and the fears of the average Athenian are deftly exploited by Demosthenes; Lysias, in his speech Against Cinesias (fr. 195 Carey), had already paved the way. Predictably, the logographer applies the technique of diabole not only against the opponent but also against his supporters in order to undermine the credibility of their testimony. The speaker’s allegations do not of course prove that Conon’s mates were members of an organized club, still less that they were criminals. At least one of them, Archebiades, belonged to a propertied family (Davies 1971, 819) and was a political associate of Phocion (Plut. Phoc. 10.1-3); he had no reason to break into houses, as the speaker claims. Archebiades, though, was a well known ȜĮțȦȞȓȗȦȞ, i.e. an admirer of the Spartan way of life (Plut. ib.); and these sorts of people were notorious for their inclination to violence and their antidemocratic feelings 5 6

See Mirhady 1991, 82. See Carey and Reid 1985, 88-89; Ober 1989, 257-259; Murray 1990, 157.

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(cf. Pl. Prot. 342c, Gorg. 515a). The label of ȜĮțȦȞȚıȝȩȢ is attached to the whole group of Conon’s supporters, although the emphasis is given to their hypocritical austerity (§34). Ariston is presented as the polar opposite of his adversary. He is depicted as a conservative, modest and shy young man: the ideal victim of a gang of hybristai. It is true that in some instances he displays a passion incompatible with the general image of temperance he wants to impress: he explicitly wishes Conon dead (§§1, 15, 22). Yet these “spontaneous” eruptions are in fact well calculated, being justified by his age and the seriousness of the assault. As Aristotle (Rh. 2.1.9ff., 1378a30ff.) points out, anger (orge) is the outcome of humiliation. Ariston’s feats of anger give the feel of truth; an image totally unblemished would ring false. It is attested that Demosthenes, before he came of age, studied under Isaeus; not so much because the fees demanded by Isocrates were too high for him, but mainly because in Isaeus he found the shrewdness required for the logographer’s job (Plut. Dem. 5.6). However, as far as narrative technique is concerned, the distant teacher of Demosthenes seems to be Lysias, the master of verisimilitude. The speaker’s character emerges from the facts themselves; and his speech flows so naturally that the listener forgets that the narrative is a skilfully concocted version of events, not the events themselves.7 The narrative, centred on the theme of hybris, is so vivid that everything is enacted in front of the speaker’s eyes: places, people, actions, gestures, sounds, screams, remarks. The pace and focus vary according to what the situation demands, and in a few places direct speech (§§34-35) functions more effectively than written testimonies. There are scenes that strike forcefully: Conon’s sons heaping the contents of their nightpots upon the poor slaves (§4); Conon celebrating his victory by imitating the rooster (§9)—a gesture full of sexual connotations.8 Facts speak for themselves, or rather the logographer makes them speak. Dionysius of Halicarnassus (Dem. 13) quotes a large chunk of the narrative (diegesis) (§§3-9) adding that, had the speech circulated without the author’s name, the reader would have found it hard to decide whether it was written by Lysias or by Demosthenes. A notable feature of the speech is that the narrative crosses over to the proofs (pisteis) section. The logographer cannot change the evidence contained in the echinoi; what he can do is to accommodate it into a new story. Diakrousis (“causing delay”) is a key term of the arbitration account;9 7

I owe these remarks (as everybody does) to Dionysius’ essay on Lysias. See Csapo 1993, 16-22. 9 §27: ʌȡȠțĮȜȠ૨ȞIJĮȚ ਥʌ੿ įȚĮțȡȠȪıİȚ; §29: įȚĮțȡȠȪıİȦȢ ਪȞİȤૃ ਲ ʌȡȩțȜȘıȚȢ ਷Ȟ; §30: ਥțțȡȠȪȦȞ IJĮ૨IJૃ ਥʌȠȓİȚ. 8

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what emerges out of it is that Conon’s manipulations are a clear proof of his guilt. The best bit, however, is kept deliberately for the end, so as to leave an indelible impression upon the audience, rounding off the general image. In his younger days, as a member of the society of Triballoi (i.e. “The Savages”), Conon made a show of his contempt for gods and custom by feasting regularly on Hecate’s Suppers (§39); he was untroubled by miasma and divine retribution, so his oaths are worthless. By the end of the speech, Conon’s proofs have been shredded to pieces: his witnesses—scum; his challenge to torture—just delaying tactics; his oath—who gives credit to an atheist? But Demosthenes’ strategy focuses not only on what is said but also on what is left unsaid; as Dionysius of Halicarnassus (Dem. 2) puts it, a good logographer’s task is also to țȜȑȥĮȚ IJ੹ ʌȡȐȖȝĮIJĮ, i.e. to suppress or distort the facts of the case. Ariston studiously avoids mentioning the arbitrator’s verdict. When he says that Conon’s evasive tactics became obvious before the arbitrator (§30), he is being deliberately misleading. The phrasing implies that the arbitrator did not fall into Conon’s trap, but of course the opposite is the case: the defendant got away. Even more importantly, the plaintiff tactfully omits to touch upon the real crux of the dispute.10 Although he asks the clerk to read aloud the laws on hybris and robbery (lopodysia) (§24), he fails to do so about the law of aikeia, which of course is the most relevant one in his case. This is deliberate. The legal definition of aikeia hinges on “which party struck the first blow” (ʌȩIJİȡȠȢ ਵȡȟĮIJȠ ȤİȚȡ૵Ȟ ਕįȓțȦȞ).11 Commenting on Ariston’s account of his encounter with Ctesias in the Agora, Carey and Reid point out that the speaker “gives cursory and evasive treatment to an important point, and we may suspect that he is concealing something, perhaps some act of provocation which would explain the subsequent attack” (1985, 82). I think that this can be substantiated by Ariston’s reasoning. In order to prove Conon’s guilt, the accuser puts forward an argument from probability: “If Conon did not even touch me, why should I sue him and leave alone those who, by their own testimony, beat me up?” (§32). This, although a reasonable point, if subjected to scrutiny, is not completely satisfactory. Conon may well have acted as the leader of the group, but Ctesias’ role is far from negligible. It was he who initiated violence, by beating up Ariston at Panactum (§5); it was he who summoned reinforcements (§7); it was he who, together with 10

Cf. Wolff 2007, 105-107. [Dem.] 37.7, cf. 40: ਲ įૃĮ੅țİȚĮ IJȠ૨IJ’ ਩ıIJȚȞ, ੔Ȣ ਗȞ ਙȡȟૉ ȤİȚȡ૵Ȟ ਕįȓțȦȞ ʌȡȩIJİȡȠȢ, 47: įİ૙Ȟ IJઁȞ ਩ȜİȖȤȠȞ ȖİȞȑıșĮȚ ... ੒ʌȩIJİȡȠȢ ਵȡȟĮIJȠ ȤİȚȡ૵Ȟ ਕįȓțȦȞ; Isoc. 20.1: ਙȡȤȦȞ ȤİȚȡ૵Ȟ ਕįȓțȦȞ. On įȓțȘ ĮੁțİȓĮȢ see MacDowell 1978, 123-124; Todd 1993, 270271. 11

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his father, trod upon his poor victim’s body (§8). The obvious question is: why did Ariston spare Ctesias in his indictment? Certainly not out of magnanimity. The most obvious explanation is that he wished to avoid the thorny issue of who struck the first blow at their first encounter in the Agora. And we should not exclude the possibility that the slaves Conon was willing to surrender as witnesses about the assault (§27) would not testify just to Conon’s abstention from beating, as the orator implies, but also about the blows exchanged between Ariston and Ctesias. Moreover, if we accept the hypothesis that Conon challenged Ariston to take an oath, we may speculate that the latter was asked to swear that he had not come to blows with Ctesias. I now come to a curious testimony mentioned by Ariston in §26. Conon, he says, claimed that “he (presumably Ctesias) is the child of a courtesan and has suffered this and that”. It has been suggested that “Conon argues that as Ctesias is a bastard he was not admitted to Conon’s oikos, so that Conon was not responsible for his education”.12 This is open to some objections. As we saw, Conon’s point of view is that giving and receiving blows over a courtesan is a common and harmless game between upperclass young men. This is not compatible with the excuse presumably offered here: Ctesias cannot be presented both as a son of a respectable citizen and a bastard. Secondly, it is clear from Ariston’s account of the Panactum campaign that Conon’s sons served, together with him, as hoplites.13 This presupposes that Ctesias had already been enrolled into his father’s deme ([Arist.] Ath. Pol. 42). Why should Conon risk the accusation of having fooled his fellow-demesmen into admitting an illegitimate son? Thirdly, in a fourth-century inscription a [Ȁ]ȩȞȦȞ ȀIJ[ȘıȓȠȣ] is attested (IG II2 7103); he might well be the defendant of our speech (cf. Kirchner PA 8715). If so, I would find it quite surprising if Conon had given the name of his father to the illegitimate offspring of a prostitute. I therefore submit an alternative interpretation. The statement that Ctesias is a bastard was not made by Conon but by Ariston himself. In his testimony, Conon accused Ariston of having called his son’s mother, that is his own legitimate wife, a prostitute (the wording may have been even more explicit: porne, not hetaira). So, Conon’s supporters’ testimony was not irrelevant at all, as the speaker protests (§26), and it could shift the pendulum in favour of the defendant. Insulting the wife of a fellow-citizen in such terms was not a thing to be taken lightly; in the minds of some jury members it may have weighed more 12

Carey and Reid 1985, 94; cf. Sandys and Paley 1886, 202. Had they been ਩ijȘȕȠȚ serving in the fortresses of Attica, there would be no need for a call-up (§3). Moreover, the fact that they were under the command of the general and the taxiarchs (§5) implies that they had already been enrolled as hoplites in the tribes (cf. Gernet’s note on the latter passage). 13

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than the technical question of who struck the first blow. At any rate, it is clear that the events in the Agora were just an episode in an ongoing feud, perhaps between two rival gangs as has been attractively suggested.14 What happened in Panactum? Again, Ariston’s account (§§36) leaves much to be desired.15 If Conon’s sons ignored the general’s reprimand so blatantly, by assaulting Ariston in his tent that very evening, why did they remain unpunished? Had they suffered any consequences for their defiance, we surely would have been told. And why are the general and the taxiarchs not mentioned by name? It is possible that they were among the signatories of the testimonies at the end of §6. But one would expect Ariston to distinguish them from the rank and file: to stress that he has the support of his officers. It has been suggested that the general may have been absent from Athens at the time of the trial.16 This possibility cannot be excluded; but I find it unlikely that the same obstacle applied to every single officer involved in the scene. Either Ariston did not ask them for their support or, if he did, they declined. These are indications that already at Panactum the plaintiff was not just an innocent victim. All these suspicions arise because we have a written text in front of us; we may move backwards and forwards, spotting cracks and inconsistencies. But Ariston’s judges did not possess this advantage; they could not stop and ponder. I have tried to point out loose ends, shiftings of focus, omissions and distortions. These are not visible at first sight. As Dionysius of Halicarnassus (Dem. 13) incisively remarks, in Demosthenes we find Lysias’ naturalness and vividness of description, but with one important difference: in Lysias this feature applies especially in the narrative, while in the next sections, the proofs and the epilogue, there is a gradual fading out, a slackening of tension, a lack of pathos; in contrast, Demosthenes’ eloquence is carried by a strong wind up to the end. The proofs section of Demosthenes 54 is a case in point. The orator sweeps the audience with him by creating a second narrative, giving the audience no room for reflection and critical distancing. In a different context, and for other reasons, Aeschines (1.125, 175) calls Demosthenes a sophist; he was absolutely right.

14 Morford 1966, 243-244. However, I do not think that the mention of ਲȝİ૙Ȣ and ıȪııȚIJȠȚ (§4) shows that Ariston was a member of an ਦIJĮȚȡİȓĮ; the speaker is simply referring to the members of his military unit. 15 See Carey and Reid 1985, 80-81. 16 Kremmydas 2020, 213.

CHAPTER 6 THE CURIOUS CASE AGAINST TIMARCHUS: RHETORIC AND PREJUDICE KOSTAS KAPPARIS

1. Introduction Photius attests that Dionysius the sophist,1 when he read the opening of the speech Against Timarchus, wished that Aeschines had indicted and harassed many people, so that he could leave behind more speeches as exquisite as this one.2 It is true that in later antiquity the speech against Timarchus was one of the most popular texts from the Attic Orators, mentioned hundreds of times by rhetoricians, grammarians and lexicographers.3 It provided hypothetical legal scenarios for rhetoricians, such as the one in Sopater, where Timarchus supposedly wanted to work as a teacher after his conviction for prostitution, and the question was whether that should be allowed.4 It also inspired fictional writers, like Alciphron, where a handsome youth named Timarchus with an uncanny resemblance to the Aeschinean character features as a seducer, or Achilles Tatius, where the character and story of Thersandrus are unmistakably based on the narrative

1

Dionysius the sophist should probably be identified with Dionysius Halicarnasseus, who is called Dionysius the sophist in other places too (e.g. Sud. delta 1171: ਞȜȚțĮȡȞĮıİȪȢ, ȖİȖȠȞઅȢ ਥʌ੿ ਝįȡȚĮȞȠ૨ ȀĮȓıĮȡȠȢ, ıȠijȚıIJȒȢ), but since Photius does not specify, the name is common and the designation too broad, we need to accept some uncertainty. 2 Phot. Bibl. 61.20b.1-8. Aeschin. 1.1, “Although I have never indicted or harassed anyone during their euthyna”. 3 E.g. Anon. Hermog. 7.623; Phot. Bibl. 264.490a; alpha 260; Hermog. Inv. 3.2; Sopater Sch. Herm. 5.38 Walz. 4 Sopater Sch. Herm. 5.114 and 206 Walz

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of the speech.5 In more recent years it has been considered to be a critically important text for research into the social history and concepts of gender and sexuality in fourth-century Athens. The pioneering work of K. J. Dover, Greek Homosexuality, treated the speech as one of the pillars on which his flawed edifice of Greek “homosexuality” was based, and ever since it has been at the centre of any discussion on perceptions of same-sex relations, and in a broader sense, concepts of sexuality and gender in fourth-century Athens.6 Dover took most of the evidence from the speech at face value, not because he could not see that the alleged facts were subjugated to the rhetorical ends of Aeschines, but ultimately because the moral outrage feigned by Aeschines suited his objectives well, and allowed him to develop a theory according to which the Athenians were as “heterosexual” as they should be, while same-sex relations were limited to a specific educational pattern, the primary purpose of which was not sexual gratification, but the cultivation of intellectual bonds, and the initiation of youths into society. Dover’s views on the speech Against Timarchus exerted tremendous influence upon later studies on gender and sexuality, and to a larger or lesser degree were accepted by Michel Foucault and an entire generation of classicists who revered the great philosopher, and also scholars who wrote in the 1980s or earlier 1990s, including Jack Winkler, David Halperin and Harald Patzer, to mention a few.7 Several scholars, including Dover and David Cohen,8 were even prepared to take Aeschines at his word when he stated that Solon had devised a masterplan intended to control the morals and sex lives of Athenian citizens from the cradle to the grave. Adriaan Lanni implicitly accepted this intent of the law to police the morals and sexual habits of young men in Athens, and argued that the two laws cited by Aeschines on hetairesis and dokimasia rhetoron had an “expressive effect” and discouraged same-sex relations, as youths would fear prosecution with charges of prostitution and subsequent disfranchisement.9 We recognize a similar “masterplan” argument in Xenophon’s Lacedaemonian Constitution, where the historian makes the case that the laws of Lycurgus 5

Alciphr. 4.17; Ach. Tat. 8.9.2-4. I have placed “homosexuality” in quotation marks because the term is charged, as it implies a different form of human sexuality from “heterosexuality”. Dover understood “homosexuality” as pseudo-sexuality, and only acknowledged “heterosexuality” as a true form of human sexuality (1978, vii-viii). 7 Patzer 1982; Winkler 1990; Halperin 1990. 8 Dover 1978; Cohen 1987. 9 Lanni 2016; 2010. Alberto Maffi has effectively demolished what he called “l’ingenioza costruzione” in a thorough and critical review of Lanni’s 2016 book (BMCR 2017.10.22). My own strenuous objections to this argument have been discussed in Kapparis 2018b, 188-206. 6

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were meant to oversee every aspect of a Spartan’s life from birth to death. It was a false argument with regard to Sparta,10 and even more so with regard to the haphazard legal system of the Athenian democracy in the fourth century. The majority of scholars, including Nick Fisher and Douglas MacDowell, correctly rejected this concept of a masterplan, while Christopher Carey takes a middle way: he does not accept the concept of the “masterplan”, but rightly considers it an effective rhetorical strategy. He writes: “the effect is to create the impression of a uni¿ed and coherent set of laws straddling public and private life as a collective source of social stability and to place Timarchus’ alleged conduct in uncompromising opposition to these laws”.11 James Davidson and Thomas Hubbard, in their voluminous works on the subject, have been very critical of Dover’s interpretation of the speech, and the model which he promoted on this basis, although from different angles.12 Considering the attention which this text has received in recent years, it is strange to see that the actual rhetorical construction of the speech, which made such a strong impression upon Dionysius in all its treacherous and slippery brilliance, has not been studied as thoroughly as is needed. A pioneering article on Aeschinean style and performance by Christopher Carey, an insightful chapter by Rosalia Hatzilambrou on character construction in Aeschines, and some shrewd notes by Nick Fisher scattered in his commentary, have made important contributions, but I believe that there is more to be said about the exceptionally successful technique of this speech.13 What makes this exploration even more urgent is the fact that the success of Aeschines in this court case has often been taken as a measure reflecting Athenian public opinion on social issues. Such an approach, besides the fact that it is fundamentally flawed, underestimates the rhetorical strengths of this text, as well as the convergence of circumstances which allowed Aeschines to steal an unexpected victory out of thin air. The purpose of this chapter is to add to the discussion on the rhetorical strengths of the speech, and argue that far from reflecting Athenian public opinion, 10 What Xenophon marked as the “laws of Lycurgus” probably were a series of traditions and rules which had evolved over a long period of time. See MacDowell 1986; Hölkeskamp 2010, 636-639; Nafissi 2010; 2018; Schmitz 2017. On the other hand, Pericles in the Funeral Speech (Thuc. 2.37), undoubtedly in response to Spartan norms, had emphasized the exact opposite, namely that surveillance into the private lives of citizens was un-Athenian and undemocratic. 11 Fisher 2001; 1999; MacDowell 2000; Carey 2017, 267. 12 Hubbard 2003; 1998; 2014; Davidson 2007, 140-145, and elsewhere in the volume; 2001. See also Bednarek 2017 for a more recent overall discussion on homophobia (or the absence of it) in classical Athens. 13 Carey 2017; Hatzilambrou 2019.

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the speech effectively uses a mirage of morality and righteousness to disguise an endless series of lies, misinformation, misdirection and false assumptions, in order to manipulate successfully the fears, anger, anxieties, disgust and baser emotions of the audience.14 I further argue that the speech is a powerful early example of populist oratory, while the fundamentals of the Aeschinean strategy in the speech are still employed effectively in our courts and political discourse.

2. Misinformation and false arguments Aeschines begins his narrative on the life of Timarchus with a deliberate piece of misinformation when he pompously announces that he will omit the abuses which Timarchus inflicted upon his own body as a boy before reaching adulthood, and generously offers to treat these as if they were “crimes committed under the Thirty tyrants, or before the archonship of Eucleides” and therefore under “amnesty”.15 This he falsely represents as an act of magnanimity, a favour to his opponent. In reality, Aeschines was plainly not permitted by law to mention alleged misdeeds of Timarchus as a boy, and he actually quotes the law on this matter in another section of the speech.16 The law recognized that an under-age boy was not in control of his body and destiny, and was not in the position to grant or deny consent to sexual acts for money under compulsion by a parent or guardian. This is why the law punished the parent or guardian, but explicitly protected the under-age boy. Aeschines while commenting on the law gives the audience the impression that the boy would still be subject to the legal disabilities that adult prostitutes would be subject to, but this cannot be correct, because the law which he has just quoted prohibited it.17 Aeschines at that point fails to add that this would only happen if the youth continued to work as a sexual labourer past the age of 18. According to Aeschines, the opening act in the infamous career of Timarchus as a male prostitute took place in a location which one would not typically associate with prostitution. We are told that the young Timarchus 14

On disgust as a topos in the speech, see Spatharas 2016. This is a sarcastic reference to the general amnesty after the restoration of the democratic constitution in 403, according to which crimes and debts were expunged and the citizens of Athens took an oath not to hold grudges about the past (And. 1.73-90; Rubinstein 2018; Wolpert 2001; Carawan 2002; 2013; Joyce 2008; Ober 2002; Tieman 2002). 16 Aeschin. 1.13-14. 17 Aeschin. 1.14, “while he is alive, the law removes from him the benefit of having children, as he has removed from his son his ability to speak”. 15

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joined a doctor’s practice as an apprentice in the harbour area of Piraeus, but his real intention was to solicit clients. Aeschines assures his audience that there was a significant number of men, merchants, foreigners and citizens who used the body of Timarchus (ਥȤȡȒıĮȞIJȠ IJ૶ ıȫȝĮIJȚ ȉȚȝȐȡȤȠȣ),18 but fails to provide any details, under the false pretence that he does not wish to be accused of being too fussy. Of course, this is a cheap rhetorical escape route, employed to disguise the fact that he had nothing specific to offer at this point. We can be sure that none of this happened, at least not in the way Aeschines presents it,19 simply because his account stretches the limits of credibility beyond breaking point. A citizen youth of exquisite looks in the prime of life, and from an affluent background, would never need to hunt for lovers among merchants and foreigners in the harbour district. If he wanted to make himself available, he would be pursued by a long line of suitors willing to spend lavishly and go to great lengths to earn favour with him. Moreover, if we think that the setting where such acts supposedly took place was the most unlikely place to arouse sexual desire, it seems improbable that this account is truthful. Aeschines uses the term ਕȞȑıIJȘıİȞ, which we also encounter in the context of someone quitting a brothel,20 in order to transition to the next episode in the saga of Timarchus “the whore”. Allegedly, the person who “lifted” Timarchus from the brothel/doctor’s practice with substantial expense, and took him as his own lover boy, was Misgolas, an Athenian with a reputation for his fondness of young male prostitute entertainers. Aeschines expected that the jurors would recognize who Misgolas was from the jokes on the comic stage, and correctly anticipated that this would add credibility to his tale about Timarchus, the rent boy of Misgolas.21 While it is impossible to ascertain whether Timarchus at any point had any kind of personal relationship with Misgolas, or to verify any of the scintillating details about it, one thing is certain. Aeschines offers zero evidence in support of these allegations. He explains his lack of any proof as the result of people’s reluctance to speak out. In addition to the complete lack of evidence, Aeschines had another major problem on his hands: anyone could 18

Aeschin. 1.40. I find it possible that the young Timarchus in search of a career was aspiring to study medicine at a time when, after almost a century of rational medicine, the subject had become respectable enough to enter the philosophical discourse in the Platonic and Aristotelian schools. 20 Aeschin. 1.41; see also Isae. 6.19: ǹ੢IJȘ į੻ ਲ ਝȜț੽ ੩ȞȘșİ૙ıĮ ʌȠȜȜ੹ ȝ੻Ȟ ਩IJȘ țĮșોıIJȠ ਥȞ ȠੁțȒȝĮIJȚ, ਵįȘ į੻ ʌȡİıȕȣIJȑȡĮ Ƞ੣ıĮ ਕʌઁ ȝ੻Ȟ IJȠ૨ ȠੁțȒȝĮIJȠȢ ਕȞȓıIJĮIJĮȚ (“This Alke, after she was bought, was established in the brothel for many years, but when she got older she quit prostitution”). 21 E.g. Timocles fr. 32 K-A; Antiph. fr. 27 K-A; Alex. fr. 3 K-A. 19

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see that Misgolas was younger, perhaps significantly so, than Timarchus, which cancelled the entire narrative he was trying to feed the dicasts, namely that Misgolas, an older affluent man, had taken under his wing Timarchus, a youth with a great body and filthy sexual tastes.22 In order to cover up the shameless lie which Aeschines was telling his audience, he tried to explain that Misgolas was attractive for a man in his mid-40s, while Timarchus looked much older than his age, because of his drunkenness and bad lifestyle. The question here is not whether Aeschines was lying outright, but whether the jury had the opportunity to do the maths, as we do, and catch him red-handed. Would it not be easier, after all, to believe the good lie of Aeschines, that Timarchus looked older than his age because of his lifestyle of excess? This is exactly what Aeschines was betting that his audience was going to do, and he was right. There is an escalation of the racy allegations about the sordid love affairs of Timarchus when the jury is told that he even offered himself for money to a public slave named Pittalacus. The narrative as presented by Aeschines contains a number of points which would be legally impossible, and yet he seems to be stretching the truth with innuendos, vague statements and an elusive narrative, to make what would be patently untrue sound credible. The first legally impossible statement would be that Pittalacus owned a very profitable gambling establishment while he was himself the property of the state. Slaves did not own property in classical Athens; they were property. The only possible explanation is that Pittalacus was a freedman, who had been set free probably years before this trial, long enough to set up his profitable business, and that Aeschines uses the term įȘȝȩıȚȠȢ (“public”, §54) improperly, implying that Timarchus was so undignified as to sleep with a slave. While it is not difficult to believe that a metic in this position could be affluent, it is still very difficult to believe that there was any kind of intimate relationship between Pittalacus and Timarchus. Unless one were to assume some kind of irrational erotic passion, a relationship between a famously good- looking, upper-class citizen man and a disreputable freedman would not make sense; yet Aeschines astoundingly informs us that the opposite was happening, namely that the entire relationship was not based on any kind of emotion or affection, but on interests and profit. But if 22 Aeschines says that around 346 Misgolas was the same age as him, that is, 45 years old (§49). Timarchus was also middle-aged at that time and probably older than Aeschines and Misgolas. As he was a member of the Boule in 361 (§109), and its members had to be at least 30 years old, Timarchus was born before 391, which would make him at the very least 45 years old in 346, and this assuming that he joined the Council of the Five Hundred as soon as he was eligible. See also Fisher 2001, 10-12 and 20.

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what everything else he has told us thus far were true, Timarchus would not need to throw himself on a lowly freedman. Affluent citizen men would be queuing up for his services. Another legal obstacle in the narrative of Aeschines is the fact that if Pittalacus were a mere public slave, it would have been illegal for him to pursue a citizen boy, according to a Solonian law cited by Aeschines (§139), under penalty of 50 lashes. Third, if Pittalacus were a slave he would not have been able to bring lawsuits against two citizen men, Timarchus and Hegesandrus, two especially powerful and well connected men. Fourth, if Pittalacus were a public slave, as Aeschines repeatedly claims, then Glaucon would not have been able to remove him to freedom, because the ਕijĮȓȡİıȚȢ İੁȢ ਥȜİȣșİȡȓĮȞ procedure would only be employed to safeguard the status of persons who were already free, at least from the perspective of the person who was initiating the ਕijĮȓȡİıȚȢ. Fifth, arbitration was a process that applied to free persons; slaves were not in the position to enter into arbitration in order to resolve differences with a citizen. Only if Pittalacus had been a metic would he have been given the option to resolve any differences with a citizen through arbitration. The entire episode with Pittalacus is based upon a series of false equivalences, like the suggestion that if Timarchus was associating with the freedman, they must have been lovers, or that if Timarchus and Hegesandrus got into a drunken brawl with Pittalacus, it was a jealous lovers’ quarrel. The narrative about the sordid love affairs of Timarchus reaches its climax in his alleged relationship with Hegesandrus, a man successfully portrayed by Aeschines as arrogant to the point of hybris, extravagant, dishonest, violent and altogether a bad citizen and a terrible human being. Aeschines suggests that Timarchus was attracted to Hegesandrus’ money, but a closer reading suggests that this is another false equivalence and that in reality it was a relationship of equals. It is impossible to tell whether there was any erotic component in the relationship between the two men, certainly both adults, in their late 20s or 30s from affluent Athenian families, with political ambitions and actively involved in the affairs of the city, and both sufficiently well off to be able to afford a lifestyle with parties, good food, hetairai and gambling, and Aeschines actually says so later on.23 Aeschines wants to have it both ways: on the one hand he wants to tell his audience that an impoverished Timarchus offered his body to Hegesandrus, but on the other hand, here and further on, he provides a long list of misappropriations of public funds which inadvertently would suggest that Timarchus was perfectly well in the position to fund his extravagant lifestyle. We can see the discrepancy, but again the question is whether the members of the jury 23

Aeschin. 1.111-114.

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had the time to think it through and see the internal contradictions, while Aeschines was pounding them with more and more allegations. The narrative over the charges of prostitution is enhanced with a brutal argumentation, where Aeschines uses every dirty trick in the book. He knows that he has no real evidence, and he tries to compensate with circumstantial references which he interprets to suit his purposes.24 He argues that witnesses and proof are not necessary because the members of the jury have personal knowledge of these events, and even when they do not, they still do not need proof or witnesses, because they can extrapolate the facts using common sense. ਩IJȚ IJĮ૨IJĮ ȝĮȞIJİȓĮȢ ʌȡȠıįİ૙IJĮȚ;25 he exclaims indignantly, and further down he argues that if there were a vote in the Assembly whether Timarchus had been a whore (79: ʌİʌȠȡȞİ૨ıșĮȚ ȉȓȝĮȡȤȠȢ), the Assembly would definitely vote against him, because the members of the Assembly had already told Aeschines that this would be the case.26 Aeschines at this point is following an unconventional line of argumentation, that courts do not need proof and witnesses when the facts are known. This is another false equivalence between cases where the facts were widely known and unambiguous, because many witnesses had been present, and a case like this, where what needs to be proved happened in private and yet it is falsely presented as a self-evident fact, known to all.27 The next set of allegations,28 where Timarchus is accused of having wasted his parental heritage and mistreated his family members, is even less convincing, not least because at no point in his adult life, and certainly not at the time of this trial, was Timarchus a poor man, as he should have been if such accusations were true. It is another false equivalence to argue that because Timarchus sold some properties which he inherited, he squandered his inheritance. Moreover, bold as these accusations were, Aeschines had another ace up his sleeve, a blind uncle of Timarchus with a big grudge against his nephew, unjustly blaming him for losing his disability benefit. While it is clear from Aeschines’ narrative that Timarchus had done nothing wrong in this case, and that in fact he had upheld the law, the testimony of 24 For example, he even interprets a report submitted to the Assembly by the Areopagus Council about some reconstruction work on the Pnyx, which had been requested by the Assembly through a proposal of Timarchus, as an allusion to dark and deserted places where the latter allegedly took his lovers for furtive sexual encounters. 25 Aeschin. 1.76, “do we need an oracle?”. 26 Aeschin. 1.80: įȚȩIJȚ ʌİʌĮȡȡȘıȓĮıșȑ ȝȠȚ țĮ੿ įȚİȓȜİȤșİ. 27 For the topos where the orator appeals to common knowledge, see cf. Arist. Rh. 3.7.7, 1408a32-36; Dem. 9.41, 19.218, 21.217, 49.66, 59.109; Lys. 20.34; And. 1.130. 28 Aeschin. 1.96-106.

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a blind man against his nephew was certainly a very theatrical act which would be burned into the minds of the dicasts, and could have a massively prejudicial effect against the defendant. The final set of accusations,29 where Aeschines is arguing that Timarchus had been a dishonest politician, is even weaker in terms of real evidence. The only provable charge is an accusation of bribery to which Timarchus had actually confessed, and for which he had been punished with a very substantial fine of 30 minas. The fact that he had been able to pay it off and continue as an active citizen and politician completely invalidates the previous sections, where Aeschines had tried to present Timarchus as someone who had squandered his parental heritage, and in an impoverished state had to resort to prostitution. But Aeschines is not concerned with the finer points. The rest of the accusations are so unfounded that at some point Aeschines is accusing Timarchus not of crimes which he had committed, but of crimes which he was about to commit in the future. However, the Athenian justice system, like most legal systems, was reactive, not proactive, and did not punish intentions; it penalized crimes already committed. This desperation confirms that Aeschines really could find nothing incriminating in the long service of Timarchus to the Athenian state, but that never stopped him from throwing mud at his opponent and hoping that some of it would stick. There is nothing reliable or, indeed, believable in this narrative. No witness testimony or other evidence is presented to back up any part of a story rife with obvious lies, inconsistencies, contradictions and impossible facts, and yet, the jury believed it. The question is why, and the answer is somewhat complex, since Aeschines’ victory was not the result of any single element in his speech, but rather the culmination of a devastating and effective combination of strategies thrown at a receptive audience.

3. Misdirection and tactics of distraction One might be justified in thinking that Aeschines was a pathological liar who could not resist falsehoods and misinformation even when there is no obvious reason why he would use them, as for example in the part of the speech where he misrepresents as current practice an ancient custom on the order of the speakers in the Assembly.30 However, there is always a pattern 29

Aeschin. 1.106-116. Aeschin. 1.23-26. I have argued in a previous publication (Kapparis 1998) that the Herald of the Assembly had ceased to invite men over 50 to speak first, before anyone else could speak, probably more than a century before the time of Aeschines. This ancient practice, like the tale according to which the orators were supposed to 30

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and a purpose in this torrent of misinformation. Besides the obvious, namely to present his opponent in a bad light, there is a subtler but nonetheless critically important objective in all this. Like Apollodorus in Against Neaera, who devoted one third of the speech to Neaera’s career as a prostitute, even though it was legally irrelevant, because he wanted to misdirect the jury and distract their attention from the feeble main charge, Aeschines bombards the jury with sensational allegations, salacious tales and an endless series of lies about sex, debauchery, sexual violence, money and corruption, heartless neglect of family, wickedness and destructive actions directed against the very foundations of the Athenian democracy, because he wants to distract the attention of his audience away from the fact that he has absolutely zero proof for any of these allegations. Aeschines is asking the jury to disfranchise a fellow-citizen, but since he had nothing in his hands that would even remotely justify a vote to convict his opponent, more imaginative strategies were needed, and Aeschines had a full armoury of these. The strategies employed in order to take the eyes of the jury away from the fact he has no evidence would be very familiar to us from our own political discourse. Sex, violence and corruption scandals, even when they are entirely untrue, have cost many a politician an election, for the simple reason that they have the inherent capacity to grab the attention of an audience and distract from other, far more weighty and essential considerations. The strategy of Aeschines was to overwhelm the dicasts with so many falsehoods that he would distract their attention from the inherent weakness of the case, and generate confusion and doubt, at the very least, and ultimately lead his audience to the unenviable place where they did not know what was true and what was a lie. If he managed to spread confusion and doubt, this would certainly amount to an unqualified success in his strategy, as it gave him an opening to win an unwinnable case. We have seen such tactics work effectively in modern political battles, and it is imperative to remember that this was a political case, with political causes and objectives.

4. The politics of disruption While there is no doubt that Aeschines was an insider in Athenian politics at the time of this trial, and a political force to be reckoned with at that, one of his favourite tactics is to play the outsider, setting out to disrupt a powerful political establishment. Aeschines presents himself as a lone wolf, speak with an arm inside their gown, is meant to imply that contemporary politicians like Timarchus had corrupted the institutions of the Athenian democracy.

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the righteous citizen prepared to fight and disrupt powerful political forces, motivated by piety and the desire to defend the laws and democratic constitution.31 In Against Timarchus Demosthenes is presented as the skilled sophist, confident that he can extricate his friends from the fair punishment they deserve with his rhetorical skill.32 Aeschines employs this topic to generate prejudice against his opponents, and hopes to earn favour not only by presenting himself as a law-abiding ordinary citizen, but also someone who would unselfishly risk the discomfort and dangers of public life in order to benefit the city, the laws and the constitution. The fact that the topic appears in every single one of his extant speeches in a developed form probably means that he considered it to be a potent tool, and he was expecting to gain significant capital from its frequent employment in court.

5. The rhetoric of fear33 Stoking fears and anxieties has been an effective rhetorical strategy, both in politics and the courts, over the ages, and Aeschines was certainly one of the early pioneers of the rhetoric of fear. The entire prosecution of Timarchus is a wildly overstated note of caution to his fellow-citizens about the potential dangers to the city as a whole, and the citizens individually in their family lives, if men of the moral calibre of his opponent were allowed to dictate the course of the Athenian polis. The strategy of fear pervades the entire speech and influences every aspect of the prosecution’s narrative. In the section where Aeschines quotes an entire series of relevant, irrelevant, valid and obsolete laws, rules and regulations, he states that the legislator was worried, about young men abusing their own bodies, about older men buying the affections of younger men, about children being exploited by their parents and guardians, about emboldened slaves pursuing the affections of free boys, about young men being abused at school by teachers, fellow-students and even strangers coming by, about children being raped on the way home from school, and so on, and this is why he tried to create this airtight system of oversight. While it can be argued that the laws on 31 The clearest example of this topos in Aeschinean oratory is found in the opening lines of the speech Against Ctesiphon (3.1), where Aeschines was facing a similar lineup on the opposing side, including Demosthenes and other prominent members of the anti-Macedonian party. Even more striking is the employment of this topos in the speech On the False Embassy, where Aeschines opens and closes the speech with it. 32 Aeschin. 1.173-175. 33 On the rhetoric of fear, see also Konstan 2007; Neel 2017; Papadodima 2016; Nehamas 1994; Pina Polo 2019.

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hetairesis and dokimasia rhetoron were paranoid reactions to the possibility that men of the lowest socioeconomic standing,34 to which citizen men who practised prostitution decidedly belonged, could infiltrate positions of power and harm the city and the democratic constitution from within, the kind of authoritarian oversight over the private lives of citizens which Aeschines suggests would not be acceptable in the Athenian democracy. Aeschines has misrepresented the vast majority of the legal provisions and regulations he quotes, and has subjugated them to a narrative of fear, hoping that by scaring his fellow-citizens about the dangers which politicians like Timarchus posed he could secure their vote. It turns out that he was correct in his estimation. To the same effect Aeschines demonized his opponent, presenting him as a danger to young people, to the city and the democracy. In a high-pitched plea he asks the parents in the audience what use it is to hire teachers, coaches and supervisors for their children when those supposed to look after the laws are the ones living unsuitable lifestyles.35 At this point he invites his audience to consider the implications of a “not guilty” verdict on their children, and the kind of example that they would be providing. Then, with an appeal to the widespread dislike of procurers, he switches to public life, where he tries to scare his fellow-citizens by suggesting to them that they would face the wrath of the gods if they were to allow physically impure men to write decrees about religious affairs and serve as priests. He then elevates the tone even higher when he makes a tenuous connection between sexual desires and tyranny,36 and reaches a dramatic climax, very similar to the one we find in the speech Against Neaera, when he argues that, if Timarchus were to be acquitted, it would have been better for everyone if this trial had not taken place, because the message to young people around the city would be to ignore all requirements of propriety and orderly conduct.37 Aeschines skilfully manipulated the fears of his fellow-citizens and suggested to them that unless they were willing to be harsh and “like Furies drive out and punish with burning torches” (ȆȠȚȞ੹Ȣ ਥȜĮȪȞİȚȞ țĮ੿ țȠȜȐȗİȚȞ į઺ı੿Ȟ ਲȝȝȑȞĮȚȢ), they endangered the well-being of their children, the laws, the institutions, democracy and the city itself. Undoubtedly this successful manipulation of the deepest fears of his audience represents one of the 34

I have so argued in Kapparis 2022. Aeschin. 1.187. The argument reminds us of the question which Apollodorus asks his audience about the kind of message that they would be giving to their womenfolk, if they were to acquit Neaera (Dem. 59.110-115). 36 Aeschin. 1.191. Trans. C. D. Adams. 37 Aeschin. 1.192-193; cf. Dem. 59.112. 35

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earliest and most developed deployments of fear as an instrument of persuasion in political and forensic oratory, and places him among the pioneers who discerned with clarity the powerful potential of this dangerous tool. A few centuries later Cicero would deploy this tool to maximum effect, especially in his Catilinarian speeches.38

6. A receptive audience39 When the case against Timarchus went to court in 346, Aeschines had a favourable political climate behind him, while Demosthenes and Timarchus were fighting against the current. After a tense situation in Olynthus in 348, where the Athenians were too slow to prevent the destruction of the city, and the realization sank in that Philip was a serious adversary, the Athenians were persuaded to seek peaceful accommodation with Philip, essentially because they were still unwilling to risk an all out confrontation. Aeschines had a very significant advantage in 346, at a time when the peace of Philocrates dominated the Athenian political landscape. He had been an ardent supporter of a peaceful coexistence with Philip, and in 346 an Athenian audience would certainly be more receptive to the good ambassador of peace than to the warmongers on the opposite side, Demosthenes and Timarchus. How significant this factor was becomes obvious if we consider that no public trial, the outcome of which is known to us, went against the prevailing political climate.40 The case against Timarchus was not born out of some righteous outrage, or a zealous desire to safeguard the morals of the citizens. This was a political trial, product of the messy affairs of the mid-340s, and one would reasonably assume, to a large degree, judged by them. It would not be far off the truth to argue that the case against Timarchus was a desperate political move, and how scared Aeschines was at that time becomes apparent in the closing pleas of his speech On the False Embassy. Objectively there was a small possibility that the case against Timarchus could succeed, considering the fact that it was based on nothing more than 38

Neel 2017; Pina Polo 2019. On the performance of a speech and how it could allow a speaker to influence his audience with techniques that go beyond rational arguments on the merits of the case, see the useful collection by Papaioannou et al. 2017; also Serafim 2017, and in relation to this speech 2016. 40 For example, in 347, after the destruction of Olynthus, as the peace party was in the ascendancy, a decree proposed by Apollodorus a few months earlier, when Olynthus was still under siege, the purpose of which was to enrich the war chest, was defeated in a graphe paranomon. 39

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slander and an endless series of falsehoods. And yet, taking advantage of a favourable political climate, building the speech with bold strategy, and turning jury manipulation into an art form, Aeschines scored a stunning victory and succeeded in having his most vociferous accuser permanently silenced.

7. Conclusions We should be in no doubt that Aeschines sought the disfranchisement of Timarchus not because he wanted to safeguard the morals of his fellowcitizens, but because their political disagreements had already taken a nasty turn, and he wanted to disable a powerful and influential political opponent. However, attributing the outcome of this trial to politics alone would seriously underestimate the power of Aeschinean rhetoric. For the first time in this speech we can observe fully evolved and powerfully deployed a number of topoi and techniques which populist politicians and ruthless lawyers would continue to turn into a recipe for success in later centuries.41 It can be argued that never before in Attic oratory can we observe misinformation, misdirection, populist policies, manipulation of fears and anxieties, false equivalence and the politics of disruption used so effectively to secure a favourable outcome. Aeschines used these elements purposefully, to maximum effect, took advantage of the political climate, and built a case literally out of thin air against a powerful political adversary, supported by even more powerful allies, and with masterful skill blindsided not only the jury in front of him, but also countless generations of scholars who have since used the speech, believing it to be a reliable source on Athenian sexual morality. Aeschines continues to deceive us and to slander his opponent as a male prostitute to the present day. We need to see through these lies, the populism, the misdirection, the falsehoods and the manipulation, and read the speech first and foremost as an exquisite sample of fourth-century oratory. While the speech Against Timarchus will remain an important historical source, we need to be aware that we are seeing things through the 41 We can observe, for example, Donald Trump employing these tools of misinformation, misdirection, populist policies, manipulation of fears and anxieties, false equivalence and the politics of disruption during his 2016 election campaign against Hillary Clinton with the same brutal efficiency as Aeschines. Boris Johnson also successfully used the same tools during the Brexit campaign, wearing a patriotic mantle, presenting himself as a disruptor of corrupt elites, proclaiming his intention to extricate the UK from the clutches of the political establishment of Brussels, and successfully turning the attention of the electorate away from the difficult economics of Brexit to vague but hopeful promises of a more robust NHS and a Global Britain.

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prism of supremely refined rhetoric, and for that reason use the evidence it provides with the most extreme caution.

CHAPTER 7 WITNESS STATEMENTS IN THE SPEECHES OF AESCHINES: THE EVIDENCE OF THE MANUSCRIPT TRADITION DÓRA SOLTI AND ATHANASIOS EFSTATHIOU

Aeschines was a great rhetor acting in Athens after 355. His speeches (Against Timarchus [345], On the False Embassy [343] and Against Ctesiphon [330]) point to the main political issue of the time, the relationship between Athens and Macedon. Athens, though the leader of the second Athenian league, found herself in a state of decline. Diplomatic history between Athens and Macedon throughout the period from the end of the Social War (355) and the Battle of Chaeronea (338) includes important events such as the Peace of Philocrates (346). This treaty, the Peace of Philocrates, concluded in 346 between Athens and Macedon under Philip II, took the name of Philocrates, one of its main Athenian negotiators. It is strongly connected with the final settlement of the Sacred War, but it proved to be a successful political invention promoted by Philip in order to neutralize Athens’ resistance to his territorial expansion south. The peace was, however, regarded as unsatisfactory and attracted the criticism of several political figures, such as Aristophon, Demosthenes, Hegesippus and their associates. Athens quickly found herself in a state of “war within peace”. She tried to oppose her friend and ally Philip in every way—diplomatically, politically and even militarily. On several occasions, Athens even gave support to the anti-Macedonian factions of states which fought against Philip. For three years Aeschines had to suffer the consequences of a major disappointment, which the Peace of Philocrates caused. In both the speeches by Demosthenes and Aeschines On the False Embassy (343) a clear or

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implied division of citizens and especially politicians as friends and enemies permeates their argumentation strategies. Thus, for Demosthenes Eubulus and Aeschines worked not to support Macedon but to make as much as they could from a peace which, although fragile, was, in their view, still worth pursuing. Not long afterwards, attempts were made in Athens to review the peace. The major political trials surviving in the speeches Against Timarchus (345), Against Philocrates (344), a case against Aeschines (in the speech On the False Embassy, 343), and long after these the Against Ctesiphon and On the Crown (330), reflect a major shift in public opinion and may offer a picture of a dynamic function of friendship in politics. While in his speech Against Timarchus (1.174) Aeschines claims that it was he, together with Philocrates, who brought about the peace, once Philocrates is condemned as an agent of Philip, the situation changes. Now, in 343, Aeschines claims that it was Demosthenes who co-operated with Philocrates, and that he himself was forced to support the peace as the only way to end the deadlock of an unequal confrontation with Philip. In the years following the conclusion of the Peace of Philocrates, the policy of opposition to Macedon was advanced very carefully. In the three speeches of Aeschines various titles of ਙIJİȤȞoȚ ʌ઀ıIJİȚȢ (i.e. “inartificial proofs”; cf. Arist. Rh. 1.2.2-3, 1355b35-56a4) or ਥʌ઀șİIJoȚ ʌ઀ıIJİȚȢ (i.e. “supplementary proofs”; cf. Anaxim. Rh. Al. chs 7 and 2), such as ȌǾĭǿȈȂǹ, ȌǾĭǿȈȂǹȉǹ, ȃȅȂȅȈ, ȃȅȂȅǿ, ȂǹȇȉȊȇǿǹ and ǼȀȂǹȇȉȊȇǿǹ can be found. In particular, the various witnesses used by Aeschines to testify to his allegations may create a cumulative effect. It is worth mentioning the testimonies of Aeschines’ fellow-ambassadors regarding Demosthenes’ address to Philip in Pella, and Demosthenes’ behaviour in Macedonia and on their journey back to Athens (Aeschin 2.44). In fact, these titles signal the position of missing documents from the text of Aeschines. It would appear that documents, which were used in the court and were included in the written version of the speech ceased to be copied by students of oratory some time later (probably in the Hellenistic period or late antiquity). Alternatively, the written version originally included only a heading (e.g. ȞંȝoȢ) marking the point at which a document was read out in court. In either case, at a much later date the texts were completed with fabricated documents, which may be recognized as such by modern scholarship because of historical errors or incongruous linguistic features. If the contents of a document can be reconstructed from the surrounding text, the chances of forgery increase.

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Only one of the three orations of Aeschines has documents inserted in the text at a later time: the first part of the first oration (Against Timarchus §§1-68), in only one branch of the textual tradition. The phenomenon of inserting documents from the beginning until some point, but not until the end of the oration, is well known in the corpus of Attic Orators. Witness statements have been proved by scholarship to be forgeries from an early time,1 but as far as the laws and decrees are concerned, there are two approaches in terms of originality. According to the stichometric method, documents incorporated in the stichometric Urexemplar can be original, but the non-stichometric documents have to be considered with a high probability as forgeries.2 According to a different approach, documents should be examined one by one because they could have been added at a later time from an authentic source.3 As far as the witness statements are concerned, there were probably no authentic sources at a later time, and in the case of Aeschines, there is no stichometry apart from two papyrus fragments.4 Aeschines’ first oration has been handed down in two branches of textual tradition: branch ȕ and branch f. The documents—four laws and three witness statements—have been added only to branch ȕ. The single papyrus fragment5 containing sections that should include a document, the first witness statement in §50, does not contain it, so there is no ancient testimony for the existence of the documents in Aeschines’ first oration or any other of the three orations:

1.

1

Type of document

Document added

1.12 ȃȩȝȠȚ

+

1.16 ȃȩȝȠȢ 1.21 ȃȩȝȠȢ 1.35 ȃȩȝȠȚ 1.50 ȂĮȡIJȣȡȓĮȚ

+ + + +

1.66 ȂĮȡIJȣȡȓĮ 1.68 ȂĮȡIJȣȡȓĮ 1.101 ȂĮȡIJȣȡȓĮ 1.105 ȂĮȡIJȣȡȓĮ

In the manuscript tradition Papyri

Branch f -

Scholia

Testimonia

+

-

-

+ + + +

-

-

-

+

+

-

-

-

+

+

-

-

-

-

-

-

-

-

-

-

-

-

-

P.Oxy. 4030, not added

Branch k no tradition of the first oration

Canevaro 2013, 3-7. Canevaro 2013. 3 Drerup 1898, 221-366; Hansen 2016, 438-474. 4 P.Oxy. 4030, P.Hal.Inv. 13. 5 P.Oxy. 4030. 2

Branch ȕ

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Branch ȕ represents the full Corpus Aeschineum, which in addition to the three orations includes two vitae, the hypotheses, the full corpus of scholia and the epistles: Rhetorical tradition (with Demosthenes) Branch k – Oration 2 Oration 3

Philological tradition (Aeschines only) Branch ȕ Oration 1 Oration 2 Oration 3

Branch f Oration 1 Oration 2 Oration 3

Branch i – Oration 2 –

– Scholia k –

Epistles Scholia ȕ Vita 1 Vita 2

Epistles Scholia fȕ Vita 3

– Scholia i Vita 3

– –

Hypotheseis Oration 1: 7 false documents –

– –

– –

–

Oration ending

1:

long

–

Ancient papyri and testimonies contain only the three orations, nothing else from the later corpus. The textual tradition was basically not linear, but simultaneously linear and horizontal due to the editorial techniques of Alexandrine scholarship. This means that if editors found a gap in the text, they tried to fill it in from another manuscript representing another branch of the tradition. Therefore, if the documents had been added to branch ȕ in Hellenistic times, they would have undoubtedly infiltrated branch f too, but that is not the case. The infiltration of the documents could be connected much more with the gradual formation of the corpus in times of transition from the roll to the codex form. Until that time, the orations were transmitted separately from the other parts of the corpus that belonged to different hypomnemata on separate rolls. After the transition to codex form, the formation of the corpus could have happened in the following way: the epistles were added first— they were added to both branches of the philological tradition, ȕ and f, but after that time further parts were added only to branch ȕ. According to McNamee, scholia were added to literary codices from the fifth to sixth centuries on,6 and the vitae and the hypotheses could have been added together with the scholia. The false documents were added at a later time: 6

McNamee 1998 (in particular 285), 1995.

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although they contain many data worth being explained, there are no scholia to any of them; furthermore, there is a scholion which explains the person of Leocrates in §69, although this name turns up in the witness statement of the previous section too, without being explained. In conclusion, the false documents were added to branch ȕ of the Corpus Aeschineum when branches ȕ and f became separated after the sixth century in the case of orations 2 and 3 as well, but before the hypothetical mediaeval hyparchetype of branch ȕ. Only one question remains: the origin of the false documents, especially the witness statements. Four of the 51 papyri of Aeschines (P.Oxy. 1625, P.Oxy. 4041, P.Oxy. 4049, P.Cairo inv. SR 3056) have critical signs prefixed to the line indicating a document, in the majority of cases a diple or a chi. These critical signs in the left margin had the role of highlighting the connection between the ekdosis and hypomnema: the lemmata in the hypomnema were usually marked by the same critical sign as in the ekdosis.7 If the critical signs in the papyri of Aeschines can be interpreted as an indication of further scholia in the hypomnema, we can assume that in the case of the documents, these scholia could have contained the text of the document. If this is correct, it can be concluded that in the Roman era there were hypomnemata containing documents to orations 2 and 3 as well, but only the first seven documents of the first oration survived after they were incorporated in the text approximately in the sixth to seventh centuries. The text of the witness statements transmitted by the manuscript tradition undoubtedly represents a much later stage of linguistic development than the Attic Greek of Aeschines, and because of this obvious difference, editors have tried to “reconstruct” the assumed “errors” caused—as they considered—by the deterioration over time of textual transmission. Here we try to reverse this process in order to reconstruct the original text of the witness statements: §50 ȂȚıȖȩȜĮȢ ȃȚțȓȠȣ ȆİȚȡĮȚİȪȢ ȝĮȡIJȣȡİ૙. ਫȖȑȞİIJȠ ਥȞ ıȣȞȘșİȓ઺ ȉȓȝĮȡȤȠȢ ੒ ਥʌ੿ IJȠ૨ Ǽ੝șȣįȓțȠȣ ੁĮIJȡİȓȠȣ ʌȠIJ੻ țĮșİȗȩȝİȞȠȢ, țĮ੿ țĮIJ੹ IJ੽Ȟ ȖȞ૵ıȓȞ ȝȠȚ IJ੽Ȟ ʌȡઁȢ Į੝IJઁȞ ʌȠȜȣȦȡ૵Ȟ İੁȢ IJ੽Ȟ Ȟ૨Ȟ Ƞ੝ įȚȑȜȚʌȠȞ. 1 ȂȚıȖȩȜĮȢ ȃȚțȓȠȣ ȆİȚȡĮȚİȪȢ: ȂȚıȖȩȜĮȢ ȆİȚȡĮȚİȪȢ VW ȆİȚȡĮȚİȪȢ p ਥȞıȣȞȘșİȓ઺: ਥȞ IJૌ ıȣȞȘșİȓ઺ Ald ȉȓȝĮȡȤȠȢ: ȉȓȝĮȡȤȠȢ Ƞਫ਼IJȦıȓ p Ǽ੝șȣįȓțȠȣ: Ǽ੝șȣįȚțȓȠȣ a 2 țĮșİȗȩȝİȞȠȢ: țĮșİȗȩȝİȞȠȢ ahpMaAld įȚțĮȗȩȝİȞȠȢ xgmaLVDW įȚțĮșİȗȩȝİȞȠȢ mc ȖȞ૵ıȚȞ: ȖȞȫȝȘȞ hMa ʌȡઁȢ Į੝IJȩȞ: İੁȢ Į੝IJȩȞ x ʌȠȜȣȦȡ૵Ȟ: om. VWp İੁȢ IJ੽Ȟ Ȟ૨Ȟ: İੁȢ Ȟ૨Ȟ L Ȟ૨Ȟ x

7

Schironi 2012, 94; Turner 1968, 116ff.; McNamee 1977, 96-130.

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§66 ȂĮȡIJȣȡİ૙ īȜĮȪțȦȞ ȉȚȝĮȓȠȣ ȋȠȜĮȡȖİȪȢ. ਫȖઅ ਕȖȩȝİȞȠȞ İੁȢ įȠȣȜİȓĮȞ ਫ਼ʌઁ ਺ȖȘıȐȞįȡȠȣ ȆȚIJIJȐȜĮțȠȞ ਕijİȚȜȩȝȘȞ İੁȢ ਥȜİȣșİȡȓĮȞ. ȋȡȩȞ૳ į’ ੢ıIJİȡȠȞ ਥȜșઅȞ ʌȡઁȢ ਥȝ੻ ȆȚIJIJȐȜĮțȠȢ, ਩ijȘ ȕȠȪȜİıșĮȚ įȚĮȜȣșોȞĮȚ IJ੹ ʌȡઁȢ ਺ȖȒıĮȞįȡȠȞ ʌȡȠʌȑȝȥĮȚ Į੝IJ૶ ਙȡĮıșĮȚ, ਴Ȟ IJİ Į੝IJઁȢ ਥȞİțĮȜȑıĮIJȠ ਺ȖȒıĮȞįȡȠȞ țĮ੿ ȉȓȝĮȡȤȠȞ, țĮ੿ ਴Ȟ ਺ȖȒıĮȞįȡȠȢ IJોȢ įȠȣȜİȓĮȢ Į੝IJȩȞǜ țĮ੿ įȚİȜȪșȘıĮȞ ੪ıĮȪIJȦȢ. ਝȝijȚıșȑȞȘȢ ȝĮȡIJȣȡİ૙. ਫȖઅ ਕȖȩȝİȞȠȞ İੁȢ įȠȣȜİȓĮȞ ਫ਼ʌઁ ਺ȖȘıȐȞįȡȠȣ ȆȚIJIJȐȜĮțȠȞ ਕijİȚȜȩȝȘȞ İੁȢ ਥȜİȣșİȡȓĮȞ țĮ੿ IJ੹ ਦȟોȢ. 1 ਥȖઅ ਕȖȩȝİȞȠȞ İੁȢ įȠȣȜİȓĮȞ ... ਕijİȚȜȩȝȘȞ İੁȢ ਥȜİȣșİȡȓĮȞ: ਥȖઅ ਕȖȩȝİȞȠȞ İੁȢ ਥȜİȣșİȡȓĮȞ V ਥȖઅ ਕȖȩȝİȞȠȞ İੁȢ ਥȜİȣșİȡȓĮȞ … ਕijİȚȜȩȝȘȞ İੁȢ ਥȜİȣșİȡȓĮȞ W 2 ʌȡઁȢ ਥȝȑ: İੁȢ ਥȝȑ h 3 įȚĮȜȣșોȞĮȚ: įȚĮȜșȘȜ૨ȞĮȚ V ʌȡȠʌȑȝȥĮȚ: ʌȡȠıʌȑȝȥĮȚ x ਙȡĮıșĮȚ ਴Ȟ: ਙȡĮıșĮȚ įȚȐȜȣıȚȞ IJોȢ įȓțȘȢ ਴Ȟ mc įȚȐȜȣıȚȞ ਙȡĮıșĮȚ IJોȢ įȓțȘȢ ਴Ȟ phcMa IJોȢ įȓțȘȢ ਙȡĮıșĮȚ ਴Ȟ Ald 4 ਥȞİțĮȜȑıĮIJȠ: ਕȞİțĮȜȑıĮIJȠ mag ਴Ȟ ਺ȖȒıĮȞįȡȠȢ IJોȢ įȠȣȜİȓĮȢ Į੝IJȩȞ: ਷Ȟ ਺ȖȒıĮȞįȡȠȢ ਕijİȚțઅȢ Į੝IJઁȞ IJોȢ įȠȣȜİȓĮȢ pMa Į੝IJȩȞ: Į੝IJ૶ Dh 5 įȚİȜȪșȘıĮȞ ੪ıĮȪIJȦȢ: Ƞ੢IJȦ įȚİȜȪșȘıĮȞ pMa 6 ਝȝijȚıșȑȞȘȢ ... ਦȟોȢ: om. h İੁȢ įȠȣȜİȓĮȞ: İੁȢ įȠ૨ȜȠȞ W 7 İੁȢ ਥȜİȣșİȡȓĮȞ: om. pMaa §68 ਺ȖȒıĮȞįȡȠȢ ǻȚijȓȜȠȣ ȈʌİȚȡȚİઃȢ ȝĮȡIJȣȡİ૙. ੜIJİ țĮIJȑʌȜİȣıĮ ਥȟ ਬȜȜȘıʌȩȞIJȠȣ, țĮIJȑȜĮȕȠȞ ʌĮȡ੹ ȆȚIJIJĮȜȐț૳ IJ૶ țȣȕİȣIJૌ įȚĮIJȡȓȕȠȞIJĮ IJઁȞ ȉȓȝĮȡȤȠȞ IJઁȞ ਝȡȚȗȒȜȠȣ, țĮ੿ ਥȟ ਥțİȓȞȘȢ IJોȢ ȖȞȫıİȦȢ ਥȤȡȘıȐȝȘȞ ȉȚȝȐȡȤ૳ ੒ȝȚȜ૵Ȟ IJૌ Į੝IJૌ ਙȡıİȚ ઞ țĮ੿ IJઁ ʌȡȩIJİȡȠȞ ȁĮȠįȐȝĮȞIJȚ. 1 ਺ȖȒıĮȞįȡȠȢ ... ȝĮȡIJȣȡİ૙ om. h ȈʌİȚȡȚİȪȢ: ȆİȚȡȚİȪȢ La ȆİȚȡĮȚİઃȢ W țĮIJȑʌȜİȣıĮ: țĮIJȑʌȜİȣıİȞ V 2 IJઁȞ ȉȓȝĮȡȤȠȞ IJઁȞ ਝȡȚȗȒȜȠȣ: IJઁȞ ȉȓȝĮȡȤȠȞ IJȠ૨ ਝȡȚȗȒȜȠȣ mg ȉȓȝĮȡȤȠȞ IJઁȞ IJȠ૨ ਝȡȚȗȒȜȠȣ pMa 3 IJૌ Į੝IJૌ ਙȡıİȚ ઞ: IJૌ Į੝IJȠ૨ ਙȡıİȚ ઞ hcWa IJૌ Į੝IJȠ૨ ਙȡıİȚ ੪Ȣ pMa ȁĮȠįȐȝĮȞIJȚ: ȁİȦįȐȝĮȞIJȚ Jhc ȁĮȠįȐȝĮȞIJȚ amgxLVpMaWhaAld

It is obvious that these inserted witness statements originate from the Early Roman period. The main arguments are the following: the use of the accusative instead of the dative after the verb ਥȖțĮȜ૵, in relation to persons: ‫ݜ‬Ȟ IJİ Į‫ރ‬IJާȢ ‫݋‬ȞİțĮȜȑıĮIJȠ ‫ݠ‬ȖȒıĮȞįȡȠȞ țĮ‫ ޥ‬ȉȓȝĮȡȤȠȞ țĮ‫ޥ‬ ‫ݚ‬Ȟ ‫ݠ‬ȖȒıĮȞįȡȠȢ IJ߱Ȣ įȠȣȜİȓĮȢ Į‫ރ‬IJȩȞ (§66);8

8

Cf. LSJ s.v. ਥȖțĮȜȑȦ: Constr. c. dat. pers. et acc. rei.

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the apparent confusion of the dative and genitive cases: țĮIJ‫ ޟ‬IJ‫ޣ‬Ȟ ȖȞࠛıȓȞ ȝȠȚ IJ‫ޣ‬Ȟ ʌȡާȢ Į‫ރ‬IJȩȞ (§50);9 the use of the non-Attic Koine form ȁĮȠįȐȝĮȞIJȚ (§68); the use of non-Attic vocabulary characteristic mainly of the Early Roman period: the verb ʌȠȜȣȦȡ૵ (§50) and the phrases ‫݋‬ȖȑȞİIJȠ ‫݋‬Ȟ ıȣȞȘșİȓߠ (§50), as well as țĮ‫ ޥ‬IJ‫݌ ޟ‬ȟ߱Ȣ (§66).

In the case of two readings, we are facing a problem of textual tradition and interpretation, respectively. In the witness statement of Misgolas (§50), the main manuscripts agree in the reading ੒ ਥʌ੿ IJȠ૨ Ǽ੝șȣįȓțȠȣ ੁĮIJȡİȓȠȣ ʌȠIJ੻ įȚțĮȗȩȝİȞȠȢ, and apart from one main manuscript, only secondary codices have the correct reading ੒ ਥʌ੿ IJȠ૨ Ǽ੝șȣįȓțȠȣ ੁĮIJȡİȓȠȣ ʌȠIJ੻ țĮșİȗȩȝİȞȠȢ. The compilator very probably transformed the original sentence of §40 ਥțȐșȘIJȠ ਥȞ ȆİȚȡĮȚİ૙ ਥʌ੿ IJȠ૨ Ǽ੝șȣįȓțȠȣ ੁĮIJȡİȓȠȣ, so we can be sure about the verb țĮșȑȗȠȝĮȚ, and the verb įȚțȐȗȠȝĮȚ can be explained as an error in textual transmission in the following way: ȆȅȉǼȀǹĬǼǽȅȂǼȃȅȈ ȆȅȉǼǻǿȀǹǽȅȂǼȃȅȈ.

ĺ

ȆȅȉǼȀǹǽȅȂǼȃȅȈ

ĺ

In the witness statement of Hegesandrus (§68) we have the phrase ਥȤȡȘıȐȝȘȞ ȉȚȝȐȡȤ૳ ੒ȝȚȜ૵Ȟ IJĮ੝IJૌ ਙȡıİȚ ઞ țĮ੿ IJઁ ʌȡȩIJİȡȠȞ ȁĮȠįȐȝĮȞIJȚ with the problematic meaning of the noun ਙȡıȚȢ. Since no meaning of this word corresponds with the meaning of the phrase, text editors up until today have solved the problem by conjectural emendation, replacing this problematic word by another noun with a more compatible meaning: ʌȡȐȟİȚ (Reiske), ȤȡȒıİȚ (Wolf) or ĮੂȡȑıİȚ (Orelli). Since the textual tradition is uniform and there is probably no textual deterioration, we can assume that in this case we have an unprefixed, poetic use of the noun ਩ʌĮȡıȚȢ. The word ਩ʌĮȡıȚȢ has a meaning that would fit without a problem into the context. We can also assume that the compilator of these witness statements, unlike the compilator of the laws, was not a highly qualified scholar but rather a person of average literacy who was not always aware even of facts that could already have been inferred from the text, for example correct personal names:

9

Cf. Horrocks 2010, 116.

Chapter 7

86 Correct name ȂȚıȖȩȜĮȢ ȃĮȣțȡȐIJȠȣȢ ȀȠȜȜȣIJİȪȢ īȜĮȪțȦȞ ȋȠȜĮȡȖİȪȢ ਺ȖȒıĮȞįȡȠȢ ਺ȖȘıȓȠȣ ȈȠȣȞȚİȪȢ

Name in the witness statements ȂȚıȖȩȜĮȢ ȃȚțȓȠȣ ȆİȚȡĮȚİȪȢ īȜĮȪțȦȞ ȉȚȝĮȓȠȣ ȋȠȜĮȡȖİȪȢ ਺ȖȒıĮȞįȡȠȢ ǻȚijȓȜȠȣ ȈIJİȚȡȚİȪȢ

Instead of all the witnesses announced by Aeschines, only one or two are speaking in the false witness statements, using the direct speech that was completely unusual in forensic oratory.10 In the Demosthenic tradition, documents are present in all of the four main mediaeval branches:11 Oration

Branch A

Branch S

Branch F

Branch Y

18 On the crown

+

+

+

21 Against Meidias 23 Against Aristocrates 24 Against Timocrates 35 Against Lacritus

added by later crosscontamination + + +

+ + + -

+ + + +

43 Against Macartatus

+

-

-

45 Against Stephanus A

oration not included oration not included oration not included

-

+

-

+

+

+

+ + + oration not included oration not included oration not included oration not included +

46 Against Stephanus B 59 Against Neaera

This fact leads to the conclusion that the documents were incorporated in the Demosthenic speeches at a much earlier stage than in the case of Aeschines, where they can be found only in one branch of the tradition with no trace of cross-contamination. In the manuscript tradition of Aeschines in antiquity, there are two major branches: the rhetorical and the philological tradition.12 The rhetorical tradition was strictly connected with Demosthenes and handed down two pairs of connected orations (On the False Embassy of Demosthenes, On the False Embassy of Aeschines, Against Ctesiphon of Aeschines, On the Crown of Demosthenes), excluding the speech Against Timarchus. The philological tradition included the whole corpus of the three speeches but without a link to Demosthenes. Assuming that the false documents are 10 Drerup

1898, 314; Carey 2000, 42. Source of the data: Canevaro 2013, 7-10. 12 Cf. Goldschmidt 1925, 147. 11

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products of rhetorical schools,13 one might expect that they would be present in the rhetorical tradition in connection with Demosthenes, but this is not the case. They are present in the only speech of the philological tradition that is missing in the rhetorical tradition, while the documents of the speech Against Ctesiphon, which would have a link to the speech of Demosthenes On the Crown with documents in it, are missing entirely: Demosthenes On the False Embassy On the Crown

Aeschines Against Timarchus On the False Embassy Against Ctesiphon

As we see, in the speeches of Aeschines the inclusion of the documents originates from the philological tradition, in contrast to the speeches of Demosthenes. In mediaeval times, the cross-contamination starts up again and the seven false documents of branch ȕ slowly infiltrate into branch f as well. Gaps in branch f are filled from partly unknown ȕ-manuscripts: vitae, hypotheses, scholia and documents move to branch f as well, but this process is unilateral: the long ending of the first oration, as well as the third vita, parts of the f-tradition, do not infiltrate into the manuscripts of the ȕtradition. In summary, we can say that the false documents of the first oration have their origin in the philological tradition of Early Roman times. In the beginning, they were transmitted in hypomnemata on separate papyrus rolls, and were incorporated into the textual tradition of Aeschines in the early Middle Ages, when cross-contamination of the manuscript tradition decreased for a while. The documents remained part of branch ȕ until the 15th century, when cross-contamination between branches ȕ and f started again. They form an integral part of the Corpus Aeschineum along with other parts of later origin, such as vitae, hypotheses and scholia, and have to be interpreted as a part of it.

13

Cf. Canevaro 2013, 319-342.

CHAPTER 8 “KNOWING WITNESSES” IN LATE FIFTH-CENTURY PROSE JURGEN GATT

1. Introduction In this chapter I draw upon the modern epistemological discussion about testimony to address some of the questions raised about the status of witnesses in ancient courts. By taking selected passages written in the late fifth century, I sketch out an important parallel between the ancient use of witnesses and modern epistemology: both emphasize the crucial role of the witness’s knowledge. This “norm” of witnessing, however, was evidently in competition with other norms and, most importantly, with a view of witnesses as partisan players uncommitted to the truth. Though the modern debate on the function of ancient witnesses has identified both of these trends, the two sides have attempted to crown one or the other as the “key” to explaining the witness’s function. Another answer to this question, however, is possible, one which resides not in choosing one explanatory model over the other, but in acknowledging the fecundity of this “tension” and, most importantly, the role of the orator in navigating between these competing norms within his speech. In short, I argue that with the introduction of a witness, orators had to choose, and justify in argument, the most rhetorically fruitful position from which to support their own witnesses as credible and trustworthy, and their opponent’s witnesses as the very opposite of this.

2. Modern epistemology; ancient witnesses A survey of the voluminous epistemological literature on the topic of testimony is quite beyond the scope of this chapter. It suffices to say that

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though this branch of enquiry has been neglected until recently,1 the predominant positions were laid down long ago: by David Hume and Thomas Reid.2 The former proposed a prototype of the “reductionist” position: testimony must be reduced to other, more basic, forms of knowledge.3 In essence, I learn by means of testimony because I have positive a posteriori reasons—such as the testifier’s knowledge—to infer that what I am being told is true. Reid, on the other hand, develops an early version of the non-reductionist position, which holds that testimony is a form of knowledge unto itself, akin to memory, and not reducible to an inference.4 I learn by means of testimony because I have an a priori justification to regard what you say as true, in Reid’s case a God-given credulousness.5 In this way, knowledge is transferred from the speaker to the listener. Beyond these crucial differences, the two predominant models6 are united in key ways: firstly, in regarding testimony as a species of evidence and, secondly, in stressing the importance of the witness’s knowledge.7 Similar ideas can be shown to animate the rhetorical presentation of witnesses in ancient forensic rhetoric, and often not as underlying assumption but as explicitly stated principle. In the interest of space, I confine myself to addressing the latter proposition and to showing that knowledge was fundamental to a witness’s very identity. This emphasis on knowledge, in turn, is an important component of just how testimony functions as evidence and is presented as such by litigants in court.8 The proximity of ancient rhetoric and modern epistemology may be surprising, indeed suspect. Quite besides the problem of anachronism, the ancient forensic orators were hardly epistemologists concerned with the nature of testimony in any abstract sense. Even if they were to focus on “knowledge” when presenting and characterizing witnesses, they have

1

Most literature on testimony postdates Coady 1992. Notable exceptions include Hardwig 1985; 1991; Fricker 1987. 2 On Hume’s treatment, see Coady 1973; Faulkner 1998; Gelfert 2010. On Reid’s treatment, see esp. Coady 2004. 3 For an important and contemporary “local reductionist” view on testimony, see Fricker 2002. 4 For contemporary non-reductionism, see Coady 1992; Burge 1993; Audi 2002. 5 Non-reductionists also appeal to the nature of language (e.g. Coady 1992, esp. 152175) and of society (e.g. Burge 1993, 464). 6 Some scholars have now proposed models which fall outside this divide, e.g. Lackey 2006. 7 On such convergence of reductionism and non-reductionism, see Faulkner 2007, 878, following Moran 2006. 8 E.g. Ant. 6.19: ȝĮȡIJȪȡȦȞ… ਥȟ ੰȞʌİȡ țĮ੿ İ੅ IJȓȢ IJȚ ਱įȓțȘțİ, ijĮȞİȡȫIJĮIJȠȢ ਗȞ İ੅Ș.

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entirely practical reasons for doing so.9 Indeed, this is just what I propose. The orators were indeed not epistemologists given to bouts of speculation, but they did capitalize on the epistemological issues inherent in the phenomenon of testimony for rhetorical purposes. Moreover, no easy parallel is sought between modern theories of testimony and the rhetoric of the law courts. Rather, the modern philosophical debate is used to frame the questions posed of the texts, to note commonalities—such as the focus on the witness’s knowledge—as well as significant departures. It also allows us to draw seemingly disparate texts closer to one another. Thus, current epistemology draws an important distinction between the formal testimony of a witness in a court, whether accidental or otherwise, and informal or natural testimony which encompasses all other forms of communication.10 In so doing, it marks out a broader category of “testimony”, one which joins together the witness testifying in court, the patient reporting symptoms to a physician, and the source speaking to a historiographer. Such a distinction, in other words, enables us to look at the rhetorical presentation and characterization of witnesses in court as forming part of a larger set of epistemological concerns tackled in a broader set of texts. Once again, the spectre of anachronism may be raised here. There is, namely, an important historical question to ask: whether the ancients would recognize this wider “testimonial” world at all. Before addressing this concern, at least in a preliminary way, I should like to introduce a third contribution of the modern epistemological discussion to the question of the function of ancient witnesses: namely Audi’s assessment of the profound influence of the forensic world on broader thinking about testimony.11 A similar direction of influence, I argue, can be discerned in the prose works of the late fifth century. We do not find, then, the clear-cut distinction between formal witnesses and other speakers set out by modern philosophical discussion, and this is hardly surprising, given the porousness of Athenian “legal space”.12 Rather, we find other speakers being cast into the role of “witnesses” and assessed in similar ways: namely, with regard to their knowledge. More generally, there is a substantial commentary focused on the nature of testimony and of testimonial evidence, in which the testifier’s knowledge is an important touchstone, and which takes, as its starting point, the witness in court. The best evidence for this position will be provided, I hope, by the texts selected and the analysis which follows. A 9

A point stressed by Decleva Caizzi 1969, 197; Carey 1985, 147. See Coady 1992, 29-47. 11 Audi 2002, 132. 12 On the murky boundaries of Athenian legal space in relation to proof and evidence, see Carey 1994b, esp. 180-181. 10

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skeleton of a more general argument, however, can be made. Thus, it is surely significant that some of the most basic terms which denote evidence come from the world of the courts13 and, simultaneously, that we find forensic speeches discussing the nature, credibility, and relevance of testimony, and framing, albeit self-interestedly, the relationship between proof and circumstantial evidence. Forensic rhetoric, to sum up what could be a long argument, helped set the terms for the broader engagement with the world of testimony, but a broader world which the ancients recognized and, indeed, examined.

3. Credibility or trust? Yet another, even weightier, problem confronts any attempt to read a coherent epistemology in the world of witnesses: namely the “sociopolitical” model of testimony offered by Humphreys, Todd and Cohen.14 Under this reading of the ancient witness, and of the ancient law court more generally, such an analysis would be fundamentally misplaced. It is noteworthy, however, that both Humphreys and Todd acknowledge a role for “knowledge” and “testimonial evidence” in their accounts. Todd admits that testimony has two distinct functions, as a ritualistic demonstration of support and as a species of evidence,15 while Humphreys speaks more generally about the relationship of the court and the formation of social knowledge.16 Nonetheless, it is clear where the emphasis lies: on prestige, reputation and trust. For Humphreys, for example, the relevant “social knowledge” is not formed by a witness reporting some statement of fact that he personally knows, but by his showing up and supporting the litigant with all the prestige afforded to him by birth, by social position, and by proximity to the litigants involved. Indeed, under a hard reading of the “sociopolitical” model, it is not entirely clear why the witness would have spoken at all. Nonetheless, it must be conceded that Humphreys et al. have identified an important aspect of testimony in the ancient world. Indeed, one can take this position even further. Keeping in mind the broader world of testimony identified above, one can argue that “witnessing” was associated with partisanship even outside of the courts. Perhaps the best illustration of this 13

See esp. Lloyd 1966, 425-426. Humphreys 1985; Todd 1990; Cohen 1995. Looking beyond the world of the law courts, a compatible framework underpins the studies of testimony in Heraclitus (Robb 1991, 168-169) and Aristophanes (Spatharas 2008, 178), which de-emphasize the role of accidental witnesses. 15 Todd 1990, 27. 16 Humphreys 1985, esp. 315-316. 14

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fact is Herodotus who—as Fehling notes17—meticulously tracks the party interest of his sources. But for a more pointed illustration of this, we need look no further than Plato’s Republic. Around the middle of Book 1, when Thrasymachus’ definition has begun to waver, the discussion is interrupted by Polemarchus and Cleitophon: By Zeus, Socrates—Polemarchus said—this is very clear indeed. Clear to you, perhaps, Cleitophon interrupted, who are determined to be his witness (ਥ੹Ȟ ıȪ Ȗ[İ]... Į੝IJ૶ ȝĮȡIJȣȡȒıૉȢ). But Polemarchus replied, What need is there for a witness (țĮ੿ IJȓ, ਩ijȘ, įİ૙IJĮȚ ȝȐȡIJȣȡȠȢ) when Thrasymachus himself agrees (੒ȝȠȜȠȖİ૙) that rulers sometimes enact laws which are harmful to themselves and that it is just to obey these laws? (Plato, Republic 1.340a)

Cleitophon’s use of the verb ȝĮȡIJȣȡİ૙Ȟ is a naked declaration that Polemarchus is “witnessing” on Socrates’ behalf because he has taken his side in a debate which has become partisan.18 In fact, he attacks Polemarchus just for being a witness, and in this way impugns the very credibility of what he is saying. Such a use of the verb ȝĮȡIJȣȡİ૙Ȟ, especially when placed side by side with the observations made by Humphreys et al., is immensely suggestive. It corroborates the existence of an ancient mode of thinking about witnesses as partisan players whose testimony, ironically, is suspect because of this relationship to the litigant. But this is not the only possible, nor the most frequent, characterization of a witness we find in the ancient sources. Indeed, Cleitophon’s very criticism of witnesses as partisan and therefore untrustworthy contains the seeds of an alternative view, one in which truth and truthfulness were of primary importance.19 Moreover, various concerns have been raised about the sociopolitical model and its ability to explain the entirety of the picture, or even its most salient characteristics. Most damningly, as Mirhady points out, there is hardly any rhetorical emphasis on the personal characteristics of the witness.20 In Antiphon’s speeches, for example, a witness’s deposition is followed by such colourless sentences as ੪Ȣ ȝ੻Ȟ ੢ıIJİȡȠȞ 17

Fehling 1989, 152-154 et passim. Socrates ends his exchange with Polemarchus by announcing their “alliance”: ȝĮȤȠȪȝİșĮ ਙȡĮ … țȠȚȞૌ ਥȖȫ IJİ țĮ੿ ıȪ (335e). This is an apt description of the exchange above. 19 This, in fact, is the traditional explanation of the function of ancient witnesses (e.g. Bonner 1905; Bonner and Smith 1938, 123-126; MacDowell 1978, 242). For recent defences of the importance of knowledge to a witness, see Mirhady 2002; Griffith-Williams 2008. 20 Mirhady 2002, 262. 18

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IJȠıȠȪIJ૳ ȤȡȩȞ૳ ੒ ਕȞ੽ȡ ਥȕĮıĮȞȓıșȘ, ȝİȝĮȡIJȪȡȘIJĮȚ ਫ਼ȝ૙Ȟ (5.31) and ȝİȝĮȡIJȪȡȘIJĮȚ ȝ੻Ȟ Ƞ੣Ȟ ʌİȡ੿ IJȠ૨ ʌȡȐȖȝĮIJȠȢ (6.16). Here, the figure of the witness is wholly buried in the impersonal passive verb. This is hardly in keeping with an overriding emphasis on the witness’s persona and his interest in the case. Neither is much of the procedural infrastructure which surrounded witnesses, which explicitly condemns false testimony as a punishable offence and explicitly addresses the issue of the witness’s knowledge by forbidding hearsay evidence.21 Even more dramatically, the witness must swear that he knew or that he was present,22 and could excuse himself from testifying by swearing to the opposite.23 All these procedural laws are better understood if one supposes that “support” was not all that the witness provided. More positively, I propose that the late fifth- and fourth-century forensic writers saw in the witness a far more useful means of persuasion than a mere “character witness” whose words could be ignored. And key to this persuasiveness were appeals to an alternative “way of thinking” about witnesses, one tied to the epistemological concerns which surrounded ਕțȠ੾ since the time of Homer.24

4. The knowing witness in early forensic rhetoric The most succinct demonstration of the importance of knowledge as the identifying feature of a witness is Anaximenes’ definition of testimony as “the agreement of a willing and knowledgeable (ıȣȞİȚįઆȢ) person”.25 Litigants in court also refer to witnesses in ways which emphasize their knowledge, referring to them as “those present” (Ƞੂ ʌĮȡĮȖİȞȠȝȑȞȠȚ) or “those in the know” (Ƞੂ ıȣȞİ઀įȠIJİȢ),26 while the word ȝȐȡIJȣȢ may itself refer to a person possessing relevant knowledge of the case.27 More importantly, the source of the witness’s knowledge is often explicitly identified. Thus, the witnesses summoned by the choregos in Antiphon’s sixth speech are also described as “those present”28 and their knowledge explained in terms of the nature of the alleged offence: involuntary 21

Cf. Todd 1990, 28; Cohen 1995, 91 for alternative views. Thür 2005, 152-155. 23 On the exomosia, see Todd 1990, 24-25; Carey 1995; Martin 2008. 24 These issues are raised most explicitly at Hom. Il. 2.484-493. See Snell 1953, 136137; Barnes 1979, 108; Hussey 1990, 12. 25 [Arist.], Rh. Al. 15.1. 26 E.g. Ant. 5.23. 27 E.g. Ant. 6.19. 28 Ant. 6.23. The witnesses in this speech are often seen as totally irrelevant to the case, e.g. Due 1980, 57; Gagarin 2002, 141. 22

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homicides, the litigant explains, routinely have witnesses such as the ones he is presenting.29 The basis of Euxitheus’ alibi, though hardly crucial to the speech, is also specified in similar terms: the man “was present” with the defendant at the time of Herodes’ disappearance.30 Presence, and therefore sight, was not the only epistemologically charged descriptor ascribed to witnesses, for they were also described as “those in the know” (Ƞੂ ıȣȞİȚįȩIJİȢ), the same verb found in Anaximenes’ fourth-century definition.31 Even in the fifth century, however, this verb was often used to refer to that “guilty knowledge” which witnesses and accomplices shared with the perpetrator.32 At other times, a witness’s knowledge is less concretely described but even more obvious, as when doctors testify to the medical details of a case.33 And on occasion, the issue of a witness’s knowledge is discussed in even more general terms: If I were furnishing witnesses when none where present (ȝ੽ ʌĮȡİȖȑȞȠȞIJȠ ȝȐȡIJȣȡİȢ), or have not provided those witnesses who were present (IJȠઃȢ ʌĮȡĮȖİȞȠȝȑȞȠȣȢ ȝ੽ ʌĮȡİȚȤȩȝȘȞ), then they could reasonably complain that their own words are more credible than my witnesses (Ƞੂ IJȠȪIJȦȞ ȜȩȖȠȚ ʌȚıIJȩIJİȡȠȚ ਷ıĮȞ IJ૵Ȟ ਥȝ૵Ȟ ȝĮȡIJȪȡȦȞ). (Ant. 6.29)

The choregos presents this argument to prove that his witnesses are credible (ʌȚıIJȩIJİȡȠȚ) and should be believed. In doing so, he refers to one thing above all: their presence at the scene of the boy’s death. His own witnesses, we are to infer, whom he had already presented in terms of their presence, are more credible than the prosecution’s allegations. Besides the clear focus on knowledge, one thing also stands out: namely the explicitness with which this credibility is defined and defended. I will return to this point shortly. For the time being, we may note the consistency with which knowledge is presented as among the most characteristic features of a witness. It would be a mistake, however, to infer from this that the author is referencing “knowledge of relevant facts” in every case. On occasion, rather, individuals are described as ȝ੺ȡIJȣȡİȢ because they possess knowledge of the litigants themselves, their lives, and their qualities: 29

Ant. 6.19: IJ੹ ʌȡĮȤșȑȞIJĮ ijĮȞİȡ૵Ȣ ਚʌĮȞIJĮ ʌȡĮȤșોȞĮȚ țĮ੿ ਥȞĮȞIJȓȠȞ ȝĮȡIJȪȡȦȞ. Ant. 5.42. On the defendant’s alibi, see Thür 1977, 50; Edwards 1985, 83-84; Gagarin 1989, esp. 105-106. 31 The ıȣȞİȚįȩIJİȢ in Ant. 6.22, 25. 32 On ıȣȞİȚį੼ȞĮȚ in the fifth century, see Bosman 2003, esp. 49-54; Sorabji 2014, 11-19; Gatt 2021a. 33 Cf. Dem. 54.12: ȜȑȖİ IJ੽Ȟ IJȠ૨ ੁĮIJȡȠ૨ ȝĮȡIJȣȡȓĮȞ țĮ੿ IJ੽Ȟ IJ૵Ȟ ਥʌȚıțȠʌȠȪȞIJȦȞ. On doctors as “expert witnesses”, see Amundsen and Ferngren 1977, 206; Plastow 2019, 583-584. 30

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I offer my past life as a trustworthy witness (ȝ੺ȡIJȣȡĮ ʌȚıIJઁȞ ʌĮȡ੼ȟȠȝĮȚ) that I am speaking the truth. And to this witness I add you too as witnesses (ȝ੺ȡIJȣȡȚ ȝ੺ȡIJȣȡİȢ ਫ਼ȝİ૙Ȣ ਷IJİ), for you live with me (ı઄ȞİıIJİ Ȗ੺ȡ ȝȠȚ) and know these things (ı઄ȞȚıIJİ IJĮ૨IJĮ). (Gorg. Pal. 15)

Gorgias has, unfortunately and possibly for the purposes of assonance, muddied the picture somewhat by describing a non-testimonial proof—his own past life—as a “witness”.34 To this he has added a further complication: describing the imaginary jurors of the mythical trial as ȝ੺ȡIJȣȡİȢ. Though nȠ dicast could, of course, ever be a ȝ੺ȡIJȣȢ in any technical sense, we find this conflation elsewhere in forensic literature.35 Moreover, the reason for conflation in this case is explicit enough: the judges know Palamedes—an act designated by the ever-recurring ıȣȞİ઀įİȞĮȚ—because they are his associates. Indeed, this is the reason and the justification given for appealing to them as “witnesses”. And though Gorgias describes them as knowing “these things” (IJĮ૨IJĮ), and elsewhere invokes the same judges as potential witnesses to certain important facts,36 there is little doubt that the judges are here being invoked as “witnesses” because they know that Palamedes is not the sort of person to be swayed by money. Even in the case of character “witnesses”, then, knowledge was identified as the characteristic quality, a sine qua non. To sum up, a witness, whatever his other qualities, is often presented as knowing something about the case or, at least, someone involved in the dispute, and often this is explicitly given as the justification for the litigant’s appeal to them. Surely, the very insistence and explicitness with which any witness is characterized as “knowing” suggest a rhetorical interest in their competence that goes quite beyond their often unspecified sociopolitical standing. Further evidence for this position comes from attacks which litigants level against their opponents’ witnesses: In what way is the testimony of the slave worthy of belief (ʌ૵Ȣ ਕȟȓĮ ʌȚıIJİȪİıșĮȓ ਥıIJȚȞ)? For it is not likely that he recognized his assailants when he was terrified out of his wits (ਫ਼ʌȩ IJİ Ȗ੹ȡ IJȠ૨ țȚȞįȪȞȠȣ ਥțʌİʌȜȘȖȝȑȞȠȞ Į੝IJઁȞ Ƞ੝ț İੁțઁȢ ਷Ȟ IJȠઃȢ ਕʌȠțIJİȓȞĮȞIJĮȢ ȖȞ૵ȞĮȚ). It is far more likely that he, persuaded (ਕȞĮȖȚȖȞȦıțȩȝİȞȠȞ) by his masters, nodded his assent [to their fabrications]. (Ant. 2.2.7)

34

On this tendency for conflation, see Mirhady 2002, 256. See Mirhady 2002, 264 for a list of instances and a similar explanation of this conflation; see also Carey in this volume. 36 ȉ઀Ȣ Ƞ੣Ȟ ȟ઄ȞȠȚįİ; ȜİȖ੼IJȦ (Pal. 11). 35

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As is typical for the Tetralogies,37 this argument is almost a point-by-point attack on the corresponding section of the previous speech.38 The author, therefore, picks up some of the language which the mock prosecution has used. Indeed, it is noteworthy just what is picked up, for key among these verbal echoes is the issue of the witness’s recognition. And, of course, he picks it up with one purpose in mind, to refute its existence. For this reason, then, the mock defendant uses an İੁțંȢ argument to undermine his opponent’s dual description of his witness’s cognitive state: presence and recognition.39 He might have been there, the litigant grants—as grant he must—but surely, his mental state forbade any such act as ȖȞ૵ıȚȢ. No, he continues, it is far likelier that the basis of the testimony is ਕȞȐȖȞȦıȚȢ, persuasion and collusion with his masters. Though the latter point opens a second important avenue of attack on witnesses—in terms of their partisanship—the underlying assumption of the most relevant part of the argument is clear enough. The mock prosecutor attacks the fictive witness for not “knowing” because he assumes that a witness should “know”, and expects his mock jurors to recognize this. We may, perhaps, resist giving this argument too much weight, the First Tetralogy being a mere rhetorical exercise rather given to experimental İੁțંȢ argumentation.40 It is reassuring, therefore, to find attacks on witnesses in actual court speeches which are similarly underpinned by the same expectation that a witness should know: And indeed, the probabilities are in my favour (IJઁ İੁțઁȢ ıȪȝȝĮȤȩȞ ȝȠȓ ਥıIJȚȞ), for I hardly imagine myself to have been so stupid that I committed the murder on my own to ensure that no one was privy to it (੆ȞĮ ȝȠȚ ȝȘįİ੿Ȣ ıȣȞİȚįİȓȘ)—for there lay my one great danger—and then proceeded to furnish myself with witnesses and confederates once the crime had been committed (ȝȐȡIJȣȡĮȢ țĮ੿ ıȣȝȕȠȪȜȠȣȢ ਥʌȠȚȠȪȝȘȞ). (Ant. 5.43)

This is yet another instance of the relationship of ıȣȞİ઀įİȞĮȚ and witnesses and another nod to the close association of knowledge and testimony. And, once again, the litigant is not merely invoking this norm in describing a witness, but making use of it as a point of attack. Thus, the defendant argues,

37 On the contested authorship of these works, see Decleva Caizzi 1969, 71-74; Sealey 1984; Carawan 1993; Gagarin 1997, 9. For a good summary of the issues, see Gagarin 2002, 52-62. 38 Ant. 2.1.9. On responsion in the Tetralogies, see Gagarin 2002, 104. 39 ਦȞઁȢ į੻ IJȠ૨ ਕțȠȜȠȪșȠȣ ʌĮȡĮȖİȞȠȝȑȞȠȣ … IJȠ૨IJȠȞ ȝȩȞȠȞ ਩ijȘ ȖȞ૵ȞĮȚ IJ૵Ȟ ʌĮȚȩȞIJȦȞ Į੝IJȠȪȢ (Ant. 2.1.9). 40 See Gagarin 1997, 9.

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invoking an important topos in the process,41 that as a rational actor with his eyes fixed on a strict calculus of risk, he would not have created witnesses— described here as people who know (ıȣȞ઀ıĮıȚ)—when the riskiest part of the crime was over. It is far likelier, the litigant contends, that the witness testified without “knowing” any such thing and was coerced to do so by the prosecution. Sophistry, of course, but sophistry which vindicates the rhetorical utility of characterizing the witness as someone who “knows” and, in this case, knows some relevant fact: the how, the when, the where of the body’s disposal. It is precisely by invoking this expectation that a witness should know these facts, that the credibility of the actual witness is undermined. Just as in the First Tetralogy, attacks on a witness’s credibility—indeed his status as a genuine witness at all—are levelled against one thing above all: the knowledge that the witness is expected to have. Before moving on to other genres of fifth-century prose animated by similar concerns, we may take stock of the arguments examined so far. We have seen that the rhetorical characterization of witnesses is often frank and regularly invokes talk of “knowing”. Often, the source of knowledge is explicitly identified and its existence, or its “reasonableness”, defended. Conversely, a litigant may attack the credibility of an unfavourable witness by explaining how he has failed to “know” in some relevant way. One of the most salient features of this argumentative scheme, then, is its flexibility. The litigant, whether prosecuting an enemy or defending himself, starts out by marking some standard of knowledge which the witness should attain; recognition, familiarity, and so on. He then proceeds to explain how his own witnesses have succeeded in achieving these ideals, or how his opponents’ witnesses have failed to do so. The central point, however, is the first one: it is often the litigant who must furnish this criterion for evaluating witnesses and justify its selection by argument. In other words, witnesses are attacked and defended from principles that are invoked by the orators themselves. There is, of course, a certain suggestive continuity between the points of defence and attack in rhetoric and the procedural rules which governed the deposition of witnesses.42 A litigant’s unwillingness to argue from hearsay (e.g., Ant. 5), as well as the witness’s visual knowledge, were not merely rhetorical strategies, but matters governed by procedural laws. Some, no doubt, will balk at the prospect of ascribing epistemological 41

On the “insoluble murder” topos in Antiphon, see Edwards 1985, 108; Carawan 1993, 245. 42 The rhetorical emphasis on the witness’s epistemic state, for example, seems excessive when a sworn declaration of knowledge was a condition for the admissibility of the testimony.

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scruples to the early lawgivers. But no such thing is necessary. Here, we can level the blame at the orators’ feet: it is far more likely that the orators themselves capitalized on “knowledge” as one of the most rhetorically expedient characteristics expected of witnesses.

5. Knowing “Witnesses” in Herodotus and Hippocrates The fact that orators smuggled precepts into their argumentation does not, of course, make these precepts arbitrary. Rhetoricians and litigants had their eyes fixed on victory and, therefore, on persuasiveness. Thus, it is reasonable to suppose that these rhetoricians did not stray too far from the expectations of their audiences, especially in actual court speeches. More importantly, we can understand the choice to focus on witnesses’ knowledge better by noting that similar expectations hold in the broader world of testimony.43

5a. The knowing source in Herodotus The importance of testimony to Herodotus is betrayed equally by the number of source citations in the Histories and by the volume of literature on the topic of his sources.44 Of course, not all would agree that Herodotus’ source citations are to be understood as “hearsay evidence”, or even as “source citations” in any straightforward way.45 For the purposes of this chapter, however, we may follow as a hypothesis Fowler’s learned assessment of Herodotus as the ʌȡ૵IJȠȢ İਫ਼ȡİIJȒȢ of the “problem of sources”.46 This problem is, of course, none other than the very same one which confronted a jury, namely how to determine the credibility of a witness or source. And, time and again, we find Herodotus emphasizing one thing above all: his sources’ knowledge credentials. Fehling has shown, for 43

The association of witnessing and knowledge can be found as early as Homer (Il. 2.301). It is also attested in Pindar (esp. O. 1.34), as is the connection of witnessing and presence (Pind. O. 13.108). 44 At Hdt. 2.99, for example, Herodotus distinguishes between “geographicalethnographical” and “historical” investigation in terms of the importance of ਕțȠ੾. See Schepens 1980, 58-64. Cf. Luce 1997: 16. 45 Among the most important such readings of Herodotus are Dewald 1987, 160166; Fehling 1989; Shrimpton 1997, 88-89; Luraghi 2001b, 144; 2006, 83-85; Murray 2001, 316. 46 See Fowler 1996, 76-80. Compatible views of “hearsay” are presented by Marincola 1987, 128; Goldhill 2002, 15; Cartledge and Greenwood 2002, 255; Schepens 2007, 44.

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example, the importance of the sources’ “knowledge” in explaining the main trends of source citations in Herodotus,47 while Luraghi argues that these “citations” are primarily descriptive, mapping out the “local knowledge” of various peoples which populate Herodotus’ account.48 Moreover, Herodotus also presents himself confronting his sources with such questions as: [İੁȡȠȝȑȞȠȣ įȑ ȝİȣ] ੒țȩșİȞ Ƞ੢IJȦ ਕIJȡİțȑȦȢ ਥʌȚıIJȐȝİȞȠȚ ȜȑȖȠȣıȚ.49 And the answer to these questions clearly had a marked effect on Herodotus. At Hdt. 2.28, for example, he asks a scribe how he knew so accurately the source of the Nile and dismissed his answer as a joke. More importantly, the availability of witnesses who had direct knowledge also drew a hard limit on Herodotus’ inquiry and its positive results. Thus, while the Danube is known in its entirety because it passes through lands inhabited by many potential sources,50 the Nile crosses into the deserts, which no one knows,51 about which none can speak accurately,52 and which can only be investigated by “reasoning”.53 As vindication of the importance of knowledge in assessing “witnesses” in Herodotus’ Histories, I turn to a short story involving Cambyses, his general Prexaspes,54 and a messenger who announces that Smerdis— allegedly Cambyses’ brother—had declared himself King in Persia.55 The messenger’s words have markedly different effects on their audience. Cambyses, who had sent Prexaspes to kill Smerdis some time before, immediately assumed that he was speaking the truth (ਥȜʌȓıĮȢ ȝȚȞ ȜȑȖİȚȞ ਕȜȘșȑĮ, 3.62) and confronted Prexaspes about his insubordination. Prexaspes, however, declares that he had buried the corpse with his own hands (਩șĮȥȐ ȝȚȞ Ȥİȡı੿ IJૌıȚ ਥȝİȦȣIJȠ૨, 3.62) and to prove this, he proposes to examine the messenger (IJઁȞ țȒȡȣțĮ ਥȟİIJȐȗİȚȞ): Pr. You! You say (ij੽Ȣ) that you have come as a messenger from Smerdis, the son of Cyrus. Now tell me the truth (İ੅ʌĮȢ IJ੽Ȟ ਕȜȘșİȓȘȞ) and you will not be punished. Did Smerdis order these things with you there in the room (Į੝IJȩȢ IJȠȚ ȈȝȑȡįȚȢ ijĮȚȞȩȝİȞȠȢ ਥȢ ੕ȥȚȞ ਥȞİIJȑȜȜİIJȠ IJĮ૨IJĮ) or did he convey it through an intermediary? 47

Fehling 1989, esp. 59-70. Luraghi 2001b, 148-151. 49 E.g. Hdt. 2.54. 50 ʌȡઁȢ ʌȠȜȜ૵Ȟ ȖȚȞȫıțİIJĮȚ (Hdt. 2.33). 51 E.g. IJઁ ȝȑȞIJȠȚ țĮIJȪʌİȡșİ ʌȡઁȢ ȕȠȡȑȘȞ ਙȞİȝȠȞ Ƞ੝ ȖȚȞȫıțİIJĮȚ (Hdt. 4.25). 52 IJઁ į੻ ਕʌઁ IJȠ૨įİ Ƞ੝įİ੿Ȣ ਩ȤİȚ ıĮijȑȦȢ ijȡȐıĮȚ (Hdt. 2.31). 53 Most famously at 2.33. On this tripartite division of lands seen, heard about and conjectured, see Corcella 1984, 58; Romm 1989: 98; 1992: 38; Bichler 2015, 14. 54 Who may well be a Herodotean invention (Munson 2009, 463). 55 On Bardiya, and the real identity of “Smerdis”, see Lang 1992, 201-202. 48

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Chapter 8 M. I myself, ever since King Cambyses left for Egypt, have never seen (Ƞ੡țȦ ੕ʌȦʌĮ) Smerdis the son of Cyrus. But the Magus whom Cambyses left in charge of his house ordered me to do this, saying (ij੹Ȣ) that it was Smerdis, the son of Cyrus, who wanted to say these things to you (IJĮ૨IJĮ… İੇʌĮȚ ʌȡઁȢ ਫ਼ȝȑĮȢ). So spoke the herald, uttering the truth (Ƞ੝į੻Ȟ ਥʌȚțĮIJİȥİȣıȝȑȞȠȢ) and Cambyses spoke then to Prexaspes. C. Prexaspes, since you are a good man and did what was ordered, you are free from blame (ĮੁIJȓȘȞ ਥțʌȑijİȣȖĮȢ). (Hdt. 3.63)

As scholars have noted, what we have here is an example of a Herodotean mini-tragedy,56 indeed the climax of one: Cambyses discovers that he has murdered his brother in vain. We also have a second recognition: the real usurper is about to be identified, namely a different “Smerdis”, a discovery which leads directly to Cambyses’ overdetermined death. The characters of Cambyses, the mad King, and Prexaspes, who will die uttering the truth,57 are also suitably tragic. The messenger too, and his examination by Prexaspes, also follow closely on tragic stereotypes.58 And yet, the tragic character of this passage does little to obscure the forensic backdrop of this scene. Thus, the drama unfolds in a royal court, one of many in Herodotus’ Histories.59 Prexaspes is on “trial” for insubordination and all he has to prove his innocence is a witness: the messenger whose words implicate him. As to its character and the focus of the questioning, one thing stands out: the frank concern with epistemic credentials. And more concretely, Prexaspes seeks to undermine the messenger’s “testimony” by showing that he did not see Smerdis and does not know who actually issued the order. All that the message amounts to, the “judge” is led to conclude, is mere talk (ijȐıȚȢ). This is, in essence, what the defendant of the First Tetralogy had tried to do. The overlap, surely, is not incidental but reveals a paradigm of thought attached to witnessing even when this is understood more broadly.

5b. The knowing patient in Hippocrates As the Hippocratic Corpus amply demonstrates, Hippocratic physicians were well aware of the central function of communication in medicine.60

56

E.g. Belloni 1989, 31. For more on a “tragic method” in Herodotus’s Histories, see esp. Fornara 1971; Raaflaub 1987. 57 3.74-75. See Flory 1978, 141. 58 E.g. țĮ੿ IJȠ૨ IJȩįૃ ਕıIJ૵Ȟ ਲ਼ ȟȑȞȦȞ ȝĮșઅȞ ȜȑȖİȚȢ; Soph. Trach. 187. 59 On these “royal courts”, see Gagarin 1989b, 21-22; Gray 2001, 15; Gatt 2021b. 60 Gautherie 2014, 118.

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Indeed, as Lain Entralgo observed,61 a Hippocratic physician refers to and makes use of “communication” in five distinct ways: to enquire, to enlighten, to prescribe,62 to persuade,63 and as an instrument and marker of prestige.64 It is the first two functions of medical speech, mirrors of one another, which most directly link up the Hippocratic Corpus and the world of testimony. A physician, then, may “inform” his patient of the diagnosis or the prognosis which he has formulated and, conversely, the doctor may learn from his patients those subjective experiences to which they alone are privy.65 Of course, the Hippocratic physicians, as practitioners of Ionian historie, place their chief emphasis on their own personal opsis of physical signs.66 Nonetheless, these authors also frequently depict themselves asking their patients questions,67 refer to their statements,68 or describe the patient’s experiences in ways which suggest a process of inquiry.69 In the opening chapter on Diseases 1, the author even gives his audience advice about how best to ask such questions.70 The very process of communication, then, was itself a subject of concern among Hippocratic authors. And just as in Herodotus, when a Hippocratic author turned to examine this testimonial process, the examination of a reporter’s knowledge was never too far from his mind. In On the Art 11, in an argument in defence of medicine’s status as a techne,71 the author divides a doctor’s sources of information—in Herodotean fashion—into three: sight (੕ȥİȚ ੁįİ૙Ȟ), hearsay (ਕțȠૌ ʌȣșȑıșĮȚ), and ‘reasoning’ (ȜȠȖȚıȝ૶). This division established, the author zeroes in on those diseases which are most troublesome to his craft: the invisible ones (IJ੹ ਕijĮȞ੼Į). In these cases, the doctor’s sight is, of course, a non-starter. What the author also argues they prove is that even the patient’s report is no good. And the reason given is that even the patients cannot see the disease and, as a consequence, they do not know (İੁįંIJİȢ) but only opine 61

See Lain Entralgo 1970, 152. See Totelin 2009, 248-250. 63 On the role of persuasion in Hippocratic medicine, see Lloyd 1979, 96-98; Jouanna 1999, 134. The locus classicus is Plat. Gorg. 456b. 64 E.g. Hippocr. Prog. 1, for awe as a response to a physician’s prescription. 65 See Lain Entralgo 1970; Lloyd 1979, 91-92; 1983, 68-76. 66 See Langholf 1990, 54; also Lain Entralgo 1970, 148-149; Mann 2012, 193-194 with specific reference to this passage. 67 Lloyd 1983, 76 contains a list of instances. 68 See Lloyd 1983, 76-77. 69 Various instances are given in Lain Entralgo 1970, 152-153; Langholf 1990, 5361. 70 Hippocr. Dis. 1.1. Cf. Lloyd 1979, 91. 71 On Art, see Mann 2012, esp. 197-204; von Staden 2007, 37. 62

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(įȠȟ੺ȗȠȞIJİȢ). The “proof” that the author gives here to establish the patients’ “ignorance” is somewhat suspect, yet its consequences are clear enough: the doctor is forbidden one important source of knowledge, the patient’s testimony, because the patient himself does not know and can only report “unclearly”. The doctor’s failure to know, in other words, is traced directly back to the failure of his testimonial source, the patient. And though “testimony” here is characterized primarily as a source of knowledge, and not a pistis in any obvious sense, the parallels with forensic rhetoric are clear. The author proposes to examine the reports available to physicians on the basis of their source’s knowledge and, secondly, he argues that the failure of this source to know what they testify to is understood to be a significant deficiency, significant enough to make the testimony “fail” in some specified way.

6. Conclusion To conclude, I refer to a fourth important contribution of the modern epistemological literature relevant to the debate on ancient witnesses: the concept of the norms of assertion.72 These “norms” are those constitutive rules of asserting which, among other things, allow the audience to determine whether to believe an assertion or not. Drawing upon this idea, we might want to ask what were the constitutive norms—as opposed to the mere laws—which pertained to witnessing in the late fifth century and, secondly, what is their place in determining the use of actual witnesses in court. As to their identity, a case has been made that at least two major “norms” are evidenced in court and in the wider literature: a partisanship norm and a knowledge norm. And as to the second question, I have argued that explicit engagement with these norms was often central to the deployment of witnesses in an ancient court. In short, orators repeatedly and explicitly invoked the knowledge norm in order to characterize a favourable witness as credible and pertinent to the issue at hand and to attack unfavourable witnesses on the same point.73 The norm is invoked, in other words, to define and to justify the witness’s function in terms of the case. This is not to say that the procedural laws were irrelevant to the use of witnesses in court, or that there is no overlap between the procedural laws 72 See esp. Williamson 1996 for the idea of norms and, indeed, the knowledge norm of asserting in modern epistemology. 73 For reasons of space, I have not focused on the partisanship norm. However, the allegiance of the witness to the litigants is another important touchstone of argumentation around witnesses and tortured slaves (e.g. Ant. 5.32: ʌȡઁȢ IJȠȪIJȦȞ İੁı੿Ȟ Ƞੂ ȕĮıĮȞȚȗȩȝİȞȠȚ ȜȑȖİȚȞ ੖ IJȚ ਗȞ ਥțİȓȞȠȚȢ ȝȑȜȜȦıȚ ȤĮȡȚİ૙ıșĮȚ).

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and the knowledge norm, but only that the laws needed to be supplemented amply by the orator’s own ingenuity. This, I argue, is the reason why the orators found it profitable to discuss, often in quite abstract terms, the qualities of the witnesses who made themselves available to the litigants. The most useful contribution of the concept of “norms of witnessing” to the debate, however, is that it solves the underlying tension between the two “models” of witnessing, since we can easily suppose the existence of different, indeed contrary norms. This would, in turn, partly explain the complex picture of the use of witnesses which emerges from the statistical analyses of Rubinstein74 and Gagarin75—one in which the type of case and the author’s “tastes” greatly determine how and how many witnesses are used. Finally, the availability of different “norms”, and therefore of a rhetorical choice, places a just emphasis on the role of the speechwriter in shaping the way in which witnesses are characterized and used. Indeed, in many ways, it was often the speechwriter who had to invent their precise function.

74

Rubinstein 2005 marks important differences between the use of witnesses in public vs private cases. 75 Gagarin 2019 emphasizes personal style.

CHAPTER 9 CALLING FOR WITNESSES: ASPECTS OF ROLE PLAYING AND METATHEATRE IN ARISTOPHANES’ FROGS ANDREAS FOUNTOULAKIS

Social attitudes and legal procedures are often echoed in the formation of Greek drama’s conventions in a way that serves the norms developed in drama as well as specific dramatic goals of individual plays. Attitudes to violent assaults, victims and perpetrators thus emerge in Aristophanes’ Frogs through patterns of action which have acquired a conventional form in both tragedy and comedy, and are interwoven with some of the play’s wider concerns such as the form and impact of theatrical representation or the function of drama within the polis. The aim of this chapter is to shed light upon a slave’s reaction to his master’s aggression and more specifically upon Xanthias’ call for witnesses in Aristophanes, Frogs 528 during a violent incident with Dionysus. That call for witnesses is examined from social, legal and dramatic points of view. The examination aims to reveal the ways in which social conventions can be transformed into dramatic conventions as well as the handling and function of the latter within their dramatic context. Particular attention is paid to the form of Xanthias’ call and its contribution to the metatheatricality of the scene it belongs to, along with the exchange of costumes between Xanthias and Dionysus. This may elucidate the associations of that metatheatricality with important themes of the play’s plot such as the interplay between social reality and dramatic action, the construction of dramatic character, the importance of status and the formative power of drama. Xanthias’ call for witnesses at l. 528 occurs in front of Persephone’s palace in the Underworld some time after his arrival there with his master Dionysus. As soon as Dionysus arrived in the Underworld dressed as

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Heracles and met Aeacus, the latter treated him in an aggressive manner at ll. 465-478, thinking that he was indeed the hero who took away Cerberus. Terrified by Aeacus, Dionysus at ll. 494-497 gave Heracles’ lion-skin and club to his slave Xanthias, while he assumed the appearance of the slave. Dressed as Heracles at ll. 498-521, Xanthias was nevertheless well received in Persephone’s palace, where he is about to have a lavish meal and be entertained by a female pipe-player and dancing girls. When Dionysus realizes what he is going to miss, he tries to take back the lion-skin by force. Xanthias calls bystanders as witnesses to the violence inflicted upon him and threatens to resort to legal action, seeking the arbitration of the gods, but eventually hands over the lion-skin and the club to his master (ll. 522533):1 ǻȚ.

ȄĮ. ǻȚ. ȄĮ. ǻȚ. ȄĮ.

ਥʌȓıȤİȢ, Ƞ੤IJȠȢ. Ƞ੡ IJ઀ ʌȠȣ ıʌȠȣį੽Ȟ ʌȠȚİ૙, ੒IJȚȒ ıİ ʌĮȓȗȦȞ ਺ȡĮțȜȑĮ ’ȞİıțİȪĮıĮ; Ƞ੝ ȝ੽ ijȜȣĮȡȒıİȚȢ ਩ȤȦȞ, ੯ ȄĮȞșȓĮ, ਕȜȜ’ ਕȡȐȝİȞȠȢ Ƞ੅ıİȚȢ ʌȐȜȚȞ IJ੹ ıIJȡȫȝĮIJĮ. IJȓ į’ ਥıIJȓȞ; Ƞ੡ IJȚ ʌȠȪ ȝ’ ਕijİȜȑıșĮȚ įȚĮȞȠİ૙ ਚįȦțĮȢ Į੝IJȩȢ; Ƞ੝ IJȐȤ’, ਕȜȜ’ ਵįȘ ʌȠȚ૵. țĮIJȐșȠȣ IJઁ įȑȡȝĮ. IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ țĮ੿ IJȠ૙Ȣ șİȠ૙ıȚȞ ਥʌȚIJȡȑʌȦ. ʌȠȓȠȚȢ șİȠ૙Ȣ; IJઁ į੻ ʌȡȠıįȠțોıĮȓ ı’ Ƞ੝ț ਕȞȩȘIJȠȞ țĮ੿ țİȞઁȞ ੪Ȣ įȠ૨ȜȠȢ ੫Ȟ țĮ੿ șȞȘIJઁȢ ਞȜțȝȒȞȘȢ ਩ıİȚ; ਕȝȑȜİȚ, țĮȜ૵ȢÚ ਩Ȥ’ Į੡IJ’. ੅ıȦȢ ȖȐȡ IJȠȚ ʌȠIJ੻ ਥȝȠ૨ įİȘșİȓȘȢ ਙȞ, İੁ șİઁȢ șȑȜȠȚ.

Dion.: Hold it, you! You don’t mean to say you are taking it seriously, my little joke of dressing you up as Heracles? Will you stop this ridiculous behaviour, and pick up the luggage again and carry it? Xan.: What’s this? You’re not thinking, are you, of taking away from me the things that you yourself gave me? Dion.: No, I’m not thinking of doing it—I’m doing it right now. Put down that skin you’ve got on. [He takes hold of the lion-skin.] Xan. [resisting]: Witness this, everyone! Let the gods be my judges! Dion.: Gods? What gods? And how vain and stupid of you, to suppose that you, a slave and a mortal, 1 The text of Aristophanes’ Frogs used in this chapter is that of Kenneth Dover’s 1993 edition. All translations of Aristophanic texts come from Alan Sommerstein’s Aris & Phillips editions. In all other cases the translator’s name is noted. Whenever reference is not made to a translator, the translation is my own.

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Chapter 9 could be the son of Alcmene! Xan. [handing over the lion-skin and club]: All right, never mind; have them. Some time, maybe, I tell you, god willing, you might need me again!

Xanthias’ call for witnesses at l. 528 (IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ) adopts one of the typical forms of such calls in dramatic and non-dramatic texts from the fifth century onwards, which often make use of the verb ȝĮȡIJȪȡİıșĮȚ, its compound ਥʌȚȝĮȡIJȪȡİıșĮȚ or the phrase IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ. Those calls are in many cases part of violent scenes in which the victim of an aggressive act addresses the bystanders, his relatives, a city and its citizens, a land or its inhabitants in order to make public the injustice committed, find immediate help and secure witnesses who could later testify if the case was eventually brought to court. In his seminal study “Beiträge zur Wort- und Sittengeschichte II”, Wilhelm Schulze has demonstrated that cries coming from a victim of violence, which were meant to secure help and notify the community accordingly, were common in Greek and other Indo-European cultures, and are amply attested in literary as well as in social contexts. The first aim of such cries, which are known as Not- und Hilferufe, was to secure assistance for the victim of an assault, and this is stressed by Schulze.2 Greek drama offers ample evidence relating to such cries even though they do not always fully fit into the patterns found in social and legal contexts.3 In Euripides, Heraclidae 69-72, for instance, Iolaus reacts to the Herald’s aggression by calling on the inhabitants of Athens to save him and Heracles’ children: ੯ IJ੹Ȣ ਝșȒȞĮȢ įĮȡઁȞ ȠੁțȠ૨ȞIJİȢ ȤȡȩȞȠȞ, ਕȝȪȞİș’: ੂțȑIJĮȚ į’ ੕ȞIJİȢ ਕȖȠȡĮȓȠȣ ǻȚȩȢ ȕȚĮȗȩȝİıșĮ țĮ੿ ıIJȑijȘ ȝȚĮȓȞİIJĮȚ, ʌȩȜİȚ IJ’ ੕ȞİȚįȠȢ țĮ੿ șİ૵Ȟ ਕIJȚȝȓĮȞ. Inhabitants of Athens from a long time ago, come and defend us. Although we are suppliants of Zeus Agoraeus, we are being treated in a violent manner and our wreaths are defiled, and this is a disgrace for the city and brings dishonour to the gods.

The inhabitants, who form the play’s Chorus, arrive in order to offer their help. Such a cry was often identified as a ȕȠȒ. Hence the etymology of the verbs ȕȠȘșİ૙Ȟ (“to come to aid”, “to assist”), or ȕȠȘįȡȠȝİ૙Ȟ (“to run to a cry

2 3

Schulze 1918/1966, 481-511/160-189. See Fountoulakis 2011, 86-88.

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for aid”),4 both literally meaning “to run towards the cry for help”.5 Yet, as Eduard Fraenkel pointed out with reference to Aeschylus, Agamemnon 1315-1320 and Choephori 983-989, an important aim of a Notund Hilferuf was, in addition to the help that might thus be offered, to notify the community and find witnesses who could later testify against the perpetrator.6 The element of the notification through a Notruf appears prevalent, for instance, in Euripides, Heracles 754, where Lycus cries as he is about to be killed by Heracles: ੯ ʌ઼ıĮ ȀȐįȝȠȣ ȖĮ૙’, ਕʌȩȜȜȣȝĮȚ įȩȜ૳. Oh land of Cadmus, I’m being killed in a treacherous way!

In Aristophanes, Clouds 1297 the Second Creditor cries IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ, calling for witnesses and apparently for help, when Strepsiades asks a slave to bring him a goad and threatens to hit him. In the course of a violent incident, the call for witnesses, who may later testify in the court, occurs in Clouds 494-496, when Strepsiades explains to Socrates the action he expects to resort to if someone hits him: IJȪʌIJȠȝĮȚ, țਙʌİȚIJ’ ਥʌȚıȤઅȞ ੑȜȓȖȠȞ ਥʌȚȝĮȡIJȪȡȠȝĮȚǜ İੇIJ’ Į੣șȚȢ ਕțĮȡો įȚĮȜȚʌઅȞ įȚțȐȗȠȝĮȚ. I get hit, and then I wait a little, and call people to witness; then after waiting another second, I go to law.7

During the violent exchange between Demeas and Niceratus from Menander, Samia 574-582, Niceratus makes use of two types of such cries. The first type is a Notruf, which occurs at l. 576 (ʌȡȩIJİȡȠȢ ਚʌIJİȚ ȝȠȣ ıઃ ȞȣȞȓÚ IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ [“You began this. I call witnesses to this effect”, trans. D. M. Bain]) and is the same as Xanthias’ cry IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ. Its aim is to secure witnesses. The second type is a typical Notund Hilferuf, is pronounced at l. 580 in tragic style (ੁȫ ’ȞșȡȦʌȠȚ) and is 4

See LSJ9, s.v. ȕȠȘșȑȦ and ȕȠȘįȡȠȝȑȦ. Frisk 1960-1972, s.v. ȕȠȘșȩȠȢ; Schulze 1966, 182-189; Lintott 1982, 19. 6 Fraenkel 1950, III.614-615. 7 See Spatharas 2008, 186-189. As happens in Aristophanes, Frogs 528, the verb ȝĮȡIJȪȡȠȝĮȚ, in particular, is used in Acharnians 926, Peace 1119, Birds 1031 and Wealth 932, in cases of aggressive assaults either against a citizen or against an official or in cases of clothes-stealing (ȜȦʌȠįȣıȓĮ). See Spatharas 2008, 181, 183186. 5

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addressed to people passing by, who may help Niceratus deal with his violent encounter with Demeas.8 Such patterns of thought and action as well as similar phraseology occur in the texts of the Greek orators, which imply that in social contexts the victims of violent incidents ought to cry for help, so as to notify the community about the act being committed and secure immediate help as well as witnesses who could later testify with respect to the violent assault if the case was brought to court.9 As may be inferred from Lysias 3.15-16, for instance, the victim of violence was expected to cry out loud so that those around him would become aware of the violent incident and come to help him: Ƞ੤IJȠȚ į੻ ıȣȞİȚıʌİıȩȞIJİȢ ਷ȖȠȞ Į੝IJઁȞ ȕȓ઺, ȕȠ૵ȞIJĮ țĮ੿ țİțȡĮȖȩIJĮ țĮ੿ ȝĮȡIJȣȡȩȝİȞȠȞ. ıȣȞįȡĮȝȩȞIJȦȞ į੻ ਕȞșȡȫʌȦȞ ʌȠȜȜ૵Ȟ ... … but these men charged in together, and started to drag him by force, although he was yelling and shouting and calling on people to be witnesses. Lots of people rushed up ... (trans. S. C. Todd)

The function of those who came to help as witnesses was an important part of a procedure that led to the punishment of the perpetrator, as may be inferred from Antiphon 1.29: Ƞੂ į’ ਥʌȚȕȠȣȜİȣȩȝİȞȠȚ Ƞ੝į੻Ȟ ੅ıĮıȚ, ʌȡȓȞ Ȗ’ ਵįȘ ਥȞ Į੝IJ૶ ੯ıȚ IJ૶ țĮț૶ țĮ੿ ȖȚȖȞȫıțȦıȚ IJઁȞ ੕ȜİșȡȠȞ ਥȞ મ İੁıȓ. IJȩIJİ įȑ, ਥ੹Ȟ ȝ੻Ȟ įȪȞȦȞIJĮȚ țĮ੿ ijșȐȞȦıȚ ʌȡ੿Ȟ ਕʌȠșĮȞİ૙Ȟ, țĮ੿ ijȓȜȠȣȢ țĮ੿ ਕȞĮȖțĮȓȠȣȢ IJȠઃȢ ıijİIJȑȡȠȣȢ țĮȜȠ૨ıȚ țĮ੿ ȝĮȡIJȪȡȠȞIJĮȚ, țĮ੿ ȜȑȖȠȣıȚȞ Į੝IJȠ૙Ȣ ਫ਼ij’ ੰȞ ਕʌȩȜȜȣȞIJĮȚ, țĮ੿ ਥʌȚıțȒʌIJȠȣıȚ IJȚȝȦȡોıĮȚ ıijȓıȚȞ Į੝IJȠ૙Ȣ ਱įȚțȘȝȑȞȠȚȢ. … while their victims are aware of nothing until they are already trapped and see the doom which has descended upon them. Then, if they are able and have time before they die, they summon their friends and relatives, call them to witness, tell them who the murderers are, and charge them to take vengeance for the wrong. (trans. K. J. Maidment)

Andrew Lintott has pointed out that in the light of the growing power and enforcement of law in classical Athens the need for witnesses, who were called by means of such cries and whose testimonies could be used in court, became more important than their immediate help in cases of assault or

8 9

See Bain 1981, 170-171. See Todd 1990, 119-139.

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theft.10 Cries such as those of Xanthias in the face of Dionysus’ aggression are formulated according to the pattern, both dramatic and social, described above. Although a call for witnesses may also be considered as a call for help, it is worth noting that Xanthias’ cries betray a need to secure witnesses rather than immediate help, which is in any case not offered. His use of the verb ȝĮȡIJȪȡİıșĮȚ, instead of a different vocabulary pertinent to such cries, suggests that he is interested in finding witnesses. As has been noted, similar phrasing employed each time a character calls for witnesses is quite common in Aristophanes.11 Yet in drama not all of the cries which may be identified as Notrufe or Not- und Hilferufe result in the intervention or even the appearance of a third party.12 Sometimes the pattern of action which includes such cries remains unfinished in the sense that there is no intervention of a third party. What actually happens is the dramatic manipulation of a social and dramatic convention in an unconventional way that develops beyond the spectators’ expectations and thus draws their attention to important aspects of a scene or an entire play, which may be closely related to the unexpected handling of the convention in question.13 This is what happens in the relevant scene of the Frogs (ll. 522-533). As noted above, Xanthias’ use of the verb ȝĮȡIJȪȡİıșĮȚ at l. 528 suggests his interest in finding witnesses; that is, in finding third parties who could perceive visually and aurally the scene in which he is involved. Such a perception is a necessary part of the testification process. This lays emphasis on a procedure of viewing and hearing which is not different from similar procedures that are indispensable in theatrical representations. When Xanthias cries for witnesses, he actually expresses his need for spectators as would have happened with a dramatic performer. Considering the role of Heracles he has assumed and the quasi-theatrical performance he subsequently gives within the context of the actual performance of the Frogs, his utterance might well be taken as an address to the potential audience of his mock performance14 and an implicit metatheatrical acknowledgment of the 10 See Lintott 1982, 21-22 with respect to evidence adduced from Lys. 1.23; Ar. Cl. 495, 1297; Peace 1119; Birds 1031; Plutus 932; Men. Sam. 488, 576; Lys. 23.9; Dem. 47.34, 64. Cf. also Lys. 3.7; Isoc. 18.6; Dem. 33.14, 53.16; Bain 1981, 170171; 1988, 9-10; Rubinstein 2005, 99-120; Thür 2005, 146-169. 11 See above, n. 7. 12 Cf. Kaimio et al. 1990, 51. 13 See Fountoulakis 2011, 81-98. 14 For such addresses in Greek drama, and in comedy in particular, see Bain 1977. For the acknowledgment of the audience in comedy, see Revermann 2006, 159-175.

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act of viewing, the spectators and the theatricality of the Frogs. Bearing in mind that the scene of Dionysus’ and Xanthias’ descent to Hades has strong ritual resonances and echoes initiation rituals,15 such an emphasis on the procedures of viewing and hearing may also be seen as an echo of similar procedures which are also indispensable in ritual representations. This emphasis also highlights the theatricality of ritual enactment. By revealing its mechanisms, it constitutes another metatheatrical acknowledgment of the theatricality which permeates the play’s ritual substructure. When at ll. 528-529 Xanthias exclaims IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ / țĮ੿ IJȠ૙Ȣ șİȠ૙ıȚȞ ਥʌȚIJȡȑʌȦ (“Witness this, everyone! Let the gods be my judges!”), he appeals for witnesses who might later testify in a divine court.16 This is based on two assumptions, the first of which is related to his status as a slave. Such appeals for witnesses in cases of assault or clothes-stealing could be made only by free men, who would then pursue those who assaulted them in court. Slaves did not enjoy such rights and could certainly not take their own masters to court.17 Xanthias thus appears to suppose that he is a free man and not a slave. This attitude would create a particularly comic effect. The second assumption is related to his status as a mortal. The fact that the gods will be the judges implies not only that he considers a divine court as appropriate for a god like Dionysus, but also that he considers himself as a god who could appeal to such a court and whose dispute with another god could be settled only by that court.18 Xanthias’ assumptions transpose his impersonation of Heracles into a fictional world which merges the world of free men with that of the gods. This might be expected for a hero like Heracles who enjoyed a semi-divine 15 See Bowie 1993, 228-238; Lada-Richards 1999, 53-55, 78-86; Sells 2012, 83-99; Griffith 2013, 150-199. 16 Spatharas 2008, 184 suggests that in this way Xanthias threatens Dionysus, the twelfth god, to lead him to the other eleven Olympians. The reference to the eleven gods might thus echo the Eleven to whom in Athens the victims of an offence could lead those who offended them. It is less likely that the IJĮ૨IJ’ ਥȖઅ ȝĮȡIJȪȡȠȝĮȚ of Xanthias at v. 528 is addressed to the gods, who would thus be asked to be both witnesses and judges. In any case, invocations of the gods as witnesses were not rare in ancient Greece. See Polinskaya 2012, 23-37. 17 Cf. Spatharas 2008, 184. Susan Lape associates this change of status with the opportunity of Athenian slaves to gain their freedom after their participation in the naval battle at Arginusae a year before the production of the Frogs in 405, and notes that “the Frogs provides a way to conceptualize the metamorphosis of slaves into citizens”. The Arginusae naval battle is mentioned in Frogs 33-34, 190-192 and 693699. See Lape 2013, 82. 18 See Spatharas 2008, 184.

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status. But in the case of Xanthias, a fictive figure masquerading as Heracles, the transformative fictional world emerges as the world of theatrical representation. When at ll. 529-531 Dionysus tries to remind him of his actual status, he believes that Xanthias takes himself as Heracles: ʌȠȓȠȚȢ șİȠ૙Ȣ; IJઁ į੻ ʌȡȠıįȠțોıĮȓ ı’ Ƞ੝ț ਕȞȩȘIJȠȞ țĮ੿ țİȞઁȞ ੪Ȣ įȠ૨ȜȠȢ ੫Ȟ țĮ੿ șȞȘIJઁȢ ਞȜțȝȒȞȘȢ ਩ıİȚ; Gods? What gods? And how vain and stupid of you, to suppose that you, a slave and a mortal, could be the son of Alcmene!

For Dionysus at least Heracles’ attire has actually induced Xanthias to think that he is indeed Heracles. Costume is thus consciously associated with performance, character construction and role playing. Dionysus’ fear that he may not be well received in the Underworld if he passes as the real Heracles is suggestive of his cowardice, and this invests him with a nonheroic colouring that removes him from the heroic world of epic and its representation in tragedy. In addition to the comic overtones of his dressing and undressing, such a colouring turns him into an embodiment of the comic genre. Assuming the role of a spectator, Dionysus represents the spirit of comedy and deconstructs from its point of view the spirit of tragedy as represented by Heracles/Xanthias and later in the play by Aeschylus and Euripides.19 These associations between costume and dramatic character are not alien to the connection between clothes, character construction, role playing and theatrical representation, which is made by Agathon in Aristophanes, Thesmophoriazusae 148-152: ਥȖઅ į੻ IJ੽Ȟ ਥıșોș’ ਚȝĮ ȖȞȫȝૉ ijȠȡ૵. Ȥȡ੽ Ȗ੹ȡ ʌȠȚȘIJ੽Ȟ ਙȞįȡĮ ʌȡઁȢ IJ੹ įȡȐȝĮIJĮ ਘ įİ૙ ʌȠȚİ૙Ȟ, ʌȡઁȢ IJĮ૨IJĮ IJȠઃȢ IJȡȩʌȠȣȢ ਩ȤİȚȞ. Į੝IJȓțĮ ȖȣȞĮȚțİ૙’ ਲ਼Ȟ ʌȠૌ IJȚȢ įȡȐȝĮIJĮ, ȝİIJȠȣıȓĮȞ įİ૙ IJ૵Ȟ IJȡȩʌȦȞ IJઁ ı૵ȝ’ ਩ȤİȚȞ. I change my clothing according as I change my mentality. A man who is a poet must adopt habits that match the plays he’s committed to composing. For example, if one is writing plays about women, one’s body must participate in their habits. 19

Cf. Dobrov 2001, 151-152, who notes the affinities between Aristophanes’ Frogs and Euripides’ Peirithous which enable the consideration of tragedy through the gaze of comedy.

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Agathon is a tragic poet and refers to the ways in which as a poet he conceives and constructs a dramatic character. Yet the process he describes is a way of becoming a character in one of his plays as well as a way of experiencing the character’s life and mentality through his body and the clothes he wears. It would not be unreasonable to suppose that a similar connection between costume, mentality, character construction and dramatic action would be relevant to the ways an actor is transformed into the character he impersonates through his costumes, especially since in the early days of the Greek theatre the poets were also acting in their own plays.20 In a similar manner, in Aristophanes, Frogs 279-282 Dionysus pretends that he is as brave as Heracles simply because he is dressed like Heracles.21 Yet the dramatic character he tries to construct in this way is soon deconstructed when at ll. 465-493 the encounter with Aeacus reveals his cowardice, and this culminates in the metatheatrical abandonment of the role of Heracles. Dionysus subverts and eventually deconstructs the illusory world of dramatic representation into which Xanthias’ incarnation and performance of the role of Heracles is developed, by reminding him at l. 531 that he is a slave (įȠ૨ȜȠȢ) and a mortal (șȞȘIJȩȢ).22 Moreover, Dionysus admits at l. 523 that like a modern director he had provided him with a ıțİȣȒ turning him into Heracles in what was, in fact, a playful joke: ੒IJȚȒ ıİ ʌĮȓȗȦȞ ਺ȡĮțȜȑĮ ’ȞİıțİȪĮıĮ (“my little joke of dressing you up as Heracles”). The two assumptions on which Xanthias’ role playing is based, namely that he is a free man and, at the same time, a god, are thus belied. In addition, Dionysus’ remarks underline the fact that the persona of Heracles is only a role played by a man whose actual identity was very different from that of Dionysus’ brother. By drawing attention to the theatricality of Xanthias’ role playing and the “play within the play” his new role involves, he makes a bold metatheatrical statement which, in addition to Xanthias’ use of ȝĮȡIJȪȡİıșĮȚ at l. 528, draws the audience’s attention to the elements and the circumstances of the performance as well as to the extent of the power and the fragility of theatrical representation.23 The same metatheatrical statement underlines 20

Note that in Ar. Thesm. 159-166 the poetry of Ibycus, Anacreon and Alcaeus is related to their elegant attire. See further Stehle 2002, 379-382; Fountoulakis 2008, 488-489. 21 Cf. Compton-Engle 2015, 106-107. 22 This is reversed at ll. 582-583, when Xanthias is asked to assume again the role of Heracles and asks how he may pretend that he is Alcmene’s son while he is a slave and a mortal. 23 For the term “metatheatre” and such metatheatrical effects, see Abel 1963; Hornby 1986. Cf. also Rosenmeyer 2002, 87-119; Bierl 2021, 107-129.

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the theatricality of the impersonation of Heracles by means of the lion-skin and the club as well as the identity of Xanthias as a mortal slave. It thus deconstructs the theatricality of the disguise and the identity play between Xanthias and Dionysus, which began at ll. 494-497: ǻȚ. ੅șȚ ȞȣȞ, ਥʌİȚį੽ ȜȘȝĮIJȚઽȢ țਕȞįȡİ૙ȠȢ İੇ, ıઃ ȝ੻Ȟ ȖİȞȠ૨ ’Ȗઅ IJઁ ૧ȩʌĮȜȠȞ IJȠȣIJ੿ ȜĮȕȫȞ țĮ੿ IJ੽Ȟ ȜİȠȞIJોȞ, İ੅ʌİȡ ਕijȠȕȩıʌȜĮȖȤȞȠȢ İੇÚ ਥȖઅ į’ ਩ıȠȝĮȓ ıȠȚ ıțİȣȠijȩȡȠȢ ਥȞ IJ૶ ȝȑȡİȚ. Dion.: Come on then, since you’re brave and full of spirit, you take this club and lion-skin and become me, if you’re really gutsy and fearless, while I take a turn being your luggage-carrier.

Being in line with Dionysus’ disguise as Heracles from the beginning of the play, a disguise that would project the supposed bravery of a Heraclean Dionysus and could facilitate his journey to the Underworld, this exchange of roles is repeated when Dionysus takes back Heracles’ costume at ll. 532533. This happens so that Dionysus may enjoy the hospitality offered at Persephone’s palace, as well as later in the play when he makes Xanthias resume the role of Heracles at ll. 579-588 after being attacked by the Innkeeper, Plathane, and her servant. The exchange of Xanthias’ baggage for Heracles’ costume points, through the lexical pun of ıțİȪȘ (“baggage”) and ıțİȣȒ (“costume”), towards the exchange of roles and status, which is facilitated by the fact that Heracles’ attire is only a costume temporarily changing hands and never becomes their permanent possession.24 As Slater observes, the successive exchange of the costume of Heracles draws the audience’s attention to the fact that the two men are, in fact, actors who play a theatrical role on the stage. It may highlight their ability to survive through their change of role, which as a theme may be further explored in the reference to the politician Theramenes (ll. 534-541) and his ability to survive politically changing roles under different circumstances, taking at times the side of both the oligarchs and the democrats.25 Having assumed their roles as actors in the theatre, they end up being stripped of their clothes, and therefore their roles, at l. 641, while in the ensuing lines (ll. 646-665) they are both being whipped by Aeacus, who thus tries in vain to reveal their identities. Through this violent and blatant demonstration of the extent, the possibilities and the fragility of role playing, the theatre sheds light in a self24

Cf. Stone 1981, 420-422; Compton-Engle 2015, 108. See Thuc. 8.68, 89-92; Lys. 12.71-76; Xen. Hell. 2.3.15-56; Arist., Ath. Pol. 28.5; Dover 1993, 262; Sommerstein 1996, 204; Slater 2002, 188-190. 25

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referential manner upon its own mechanisms and foreshadows the play’s main metatheatrical concerns regarding the form and function of tragedy within the polis, which will dominate the agon between Aeschylus and Euripides later in the play. The metatheatrical emphasis on costume, identity and status during the exchange of Heracles’ costume between Dionysus and Xanthias in successive scenes of dressing and undressing before the audience26 is related to the importance attached to theatrical costume at ll. 1061-1068 with respect to the art of Aeschylus and Euripides. While Aeschylus dresses his characters with splendid clothes so as to highlight their great thoughts and morality, Euripides dresses his own characters with rags in a theatre that promotes critical thinking and rhetorically effective speech.27 Moreover, distinctions of status such as that of master and slave, divine and human or brave man and coward, which emerge through the exchange of costume, and hence through the exchange of roles, between Dionysus and Xanthias,28 are further explored as central points of the play’s agon. The metatheatrical acknowledgment of these aspects of role playing in the exchange between Dionysus and Xanthias is thus developed into the metatheatrical reference to the playwrights, the plays, the circumstances and the function of the theatrical performance which occurs in the agon, where questions of status are again put forward.29 The use of the Notruf at l. 528 underlines the tensions, ambiguities and reversals that surround the presentation in Greek comedy of the character of the slave who often behaves like his free master or exhibits an insolence incompatible with the behaviour and attitude of slaves in social contexts.30 This conception and presentation of social status for comic effect is not alien to the ways Xanthias and his relationship with his master are presented throughout the play. The associations, however, between social status and theatrical representation towards which Dionysus’ metatheatrical response at l. 530 points, highlight important issues which are further explored in the contest between Aeschylus and Euripides. Yet this time it is not only a question of social status, but a broader question of poetic status and political impact. It is important to note that the contest between Aeschylus and Euripides is about poetic identity and status in the world of artistic competition as well as in the Athenian polis.

26

For the metatheatrical function of such devices, see Slater 2002, 15-18. Cf. Compton-Engle 2015, 109. 28 Cf. Compton-Engle 2015, 105, 108. 29 Cf. Compton-Engle 2003, 531; Slater 2002, 6-12. 30 Cf. Wood 1988, 173; Sommerstein 2009, 136-154; Tordoff 2013, 36-52; Lape 2013, 81-88. 27

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When later in the play Euripides refers to the innovations introduced by his art, he mentions at ll. 948-955 the fact that he brought all the characters of his plays to the foreground of the action and made them speak and behave in the same manner irrespective of their social status. Slaves figure prominently among those characters.31 This, he claims, invested the dramatic world he had created with a democratic atmosphere which provided a model for the polis. The spectators, who were also citizens and whose presence is explicitly acknowledged in a metatheatrical direct reference at l. 954 (IJȠȣIJȠȣıȓ),32 learned through imitation to speak in a similar manner, which was apparently not differentiated according to their social status:33 Ǽȣ. ǹȚ.

ǻȚ. Ǽȣ. ǹȚ.

਩ʌİȚIJ’ ਕʌઁ IJ૵Ȟ ʌȡȫIJȦȞ ਥʌ૵Ȟ Ƞ੝įȑȞĮ ʌĮȡોț’ ਗȞ ਕȡȖȩȞ, ਕȜȜ’ ਩ȜİȖİȞ ਲ ȖȣȞȒ IJȑ ȝȠȚ Ȥ੩ įȠ૨ȜȠȢ Ƞ੝į੻Ȟ ਸIJIJȠȞ, Ȥ੩ įİıʌȩIJȘȢ Ȥ਱ ʌĮȡșȑȞȠȢ Ȥ਱ ȖȡĮ૨Ȣ ਙȞ. İੇIJĮ įોIJĮ Ƞ੝ț ਕʌȠșĮȞİ૙Ȟ ıİ IJĮ૨IJ’ ਥȤȡોȞ IJȠȜȝ૵ȞIJĮ; ȝ੹ IJઁȞ ਝʌȩȜȜȦǜ įȘȝȠțȡĮIJȚțઁȞ Ȗ੹ȡ Į੡IJ’ ਩įȡȦȞ. IJȠ૨IJȠ ȝ੻Ȟ ਩ĮıȠȞ, ੯ IJ઼Ȟ. Ƞ੝ ıȠ੿ ȖȐȡ ਥıIJȚ ʌİȡȓʌĮIJȠȢ țȐȜȜȚıIJĮ ʌİȡȓ Ȗİ IJȠȪIJȠȣ. ਩ʌİȚIJĮ IJȠȣIJȠȣı੿ ȜĮȜİ૙Ȟ ਥįȓįĮȟĮ – ijȘȝ੿ țਕȖȫǜ ੪Ȣ ʌȡ੿Ȟ įȚįȐȟĮȚ Ȗ’ ੭ijİȜİȢ ȝȑıȠȢ įȚĮȡȡĮȖોȞĮȚ.

Eur.: Again, from the very first words, I wouldn’t leave any character idle: I would make the wife speak, and the slave just as much, and the master, and the maiden, and the old crone. Aesch.: Well, really, you surely deserved to be put to death for such audacity! Eur.: Not at all, by Apollo; I did it in the name of democracy. Dion.: I should give that topic a miss, old chap. It’s not exactly the ideal theme for you to dilate on. Eur.: Then I taught these people here [indicating the audience] how to talk— Aesch.: Indeed you did! I only wish that before doing that, you had burst in pieces.

In this metatheatrical statement relating to the function of tragedy, Aeschylus’ response to the allegedly democratic instruction concerning 31 For the relation between the exchange of clothes between Dionysus and Xanthias, and the idea of the levelling of the classes in Athens as this is explored in the play, see Compton-Engle 2003, 530-531. 32 See Slater 2002, 194-195. 33 Ar. Frogs 948-955.

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public speaking which was provided by Euripides is marked by serious misgivings. Aeschylus’ attitude is suggestive of a scepticism on the ground that an ability to speak without paying any attention to the moral dimensions of speech and the values endorsed by the speaker or his social status might provide with political power people who are socially, politically and morally unsuitable for a leading role within the polis.34 Considering that Aeschylus eventually emerges as the winner of the play’s agon, it is likely that Dionysus’ remarks at ll. 529-531 with respect to Xanthias’ inappropriateness and actual inability to utter a Notruf because he is a slave foreshadows the positively coloured Aeschylean views and points towards a wider concern before the perils of radical democracy, especially as it evolved towards the end of the fifth century. It also underlines the unsuitability of socially and morally depraved politicians and demagogues for leading roles in the political life of Athens.35 As has been noted, Dionysus’ statement at ll. 529-531 reminds Xanthias not only of his humble social status, but also of his mortality. Through this metatheatrical statement, which threatens the dramatic illusion emerging from Xanthias’ impersonation of Heracles, light is also shed on Xanthias’ transgressive attitude, which leads to his impious behaviour and his subversive stance towards religious order. It is precisely these aspects of Xanthias’ character which are also highlighted by the metatheatricality of the scene so as to be further explored as themes later in the play. Lack of respect before the traditional gods is a theme which emerges again in the play with reference to Euripides and the art he represents. Before his encounter with Aeschylus and although the latter had prayed to Demeter, Euripides prays at ll. 891-894 to his own private gods: the Sky, the Swivel of the Tongue, Sagacity and his Nostrils: ǻȚ. Ǽȣ.

੅șȚ į੽ ʌȡȠıİȪȤȠȣ IJȠ૙ıȚȞ ੁįȚȫIJĮȚȢ șİȠ૙Ȣ. ĮੁșȒȡ ਥȝઁȞ ȕȩıțȘȝĮ țĮ੿ ȖȜȫIJIJȘȢ ıIJȡȩijȚȖȟ țĮ੿ ȟȪȞİıȚ țĮ੿ ȝȣțIJોȡİȢ ੑıijȡĮȞIJȒȡȚȠȚ, ੑȡș૵Ȣ ȝ’ ਥȜȑȖȤİȚȞ ੰȞ ਗȞ ਚʌIJȦȝĮȚ ȜȩȖȦȞ.

Dion.: Go on then, pray to your unofficial gods. Eur.: O Sky on which I feed, O Swivel of the Tongue, O Sagacity, O sharp-scented Nostrils, may I find the right refutation for any argument that I attack!

Those private gods encourage the development of persuasive argumentation, recall the new gods introduced by the sophists in 34 35

Cf. Lape 2013, 87-90. Cf. Segal 1961, 216-217; Lape 2013, 89-90.

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Aristophanes’ Clouds and imply the supposed associations of Euripidean tragedy with the intellectualism of the sophistic movement. The outcome of the agon suggests the inability of those gods to help Euripides come back to life inasmuch as the value of a theatre which echoes the concerns of late fifth-century intellectualism and does not promote the traditional values of Athens is called into question. What is thus highlighted is the transgressive character of dramatic representation which may explore the possibilities of ritual reversals and liminalities, but eventually ought to reinforce civic order and social cohesion for the sake of the polis. Dionysus’ attitude towards Xanthias at ll. 522-533 reveals his broader stance towards the social mobility and the negation of traditional religion which seem to be endorsed by Xanthias. Such a stance is related not only to his temporary vested interest, but also to a set of principles which are also adopted by him when he acts as a judge at the contest between Aeschylus and Euripides. In this way, his attitude at ll. 522-533 foreshadows his attitude during that contest as well as its outcome. Xanthias’ call for witnesses does not lead to their presence or intervention, as would normally have happened in a social context, but results in Dionysus’ response which puts an end to the dramatic illusion surrounding his impersonation of Heracles. This unexpected manipulation of the Not- und Hilferuf procedure might surprise the spectators and draw their attention to the unconventional handling of a social and legal procedure in terms of its function within its dramatic context. A call for witnesses is thus turned into a call for spectators in a scene focused on theatrical costume and representation as well as on character and status. The metatheatrical implications of the scene make transparent the mechanisms of the theatre and reveal the tensions and contradictions between social reality and theatrical representation as well as the fragility of dramatic character and role playing. The aggressive exchange between master and slave may subsequently be seen as a device designed to bring to the foreground of the performance and foreshadow important aspects of the play’s agon relating to the construction of theatrical representation and its relation with the social context of the polis. Moreover, it poses questions pertinent to distinctions of status such as those between masters and slaves or gods and mortals. Such questions are further explored in the ensuing part of the play, where respect for social status and order as well as piety and traditional religion are turned into some of the criteria according to which the works of Aeschylus and Euripides are judged. The exchange between Dionysus and Xanthias is designed to highlight the play’s wider concerns relating to the construction of theatrical representation and its function

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within the Athenian polis.36

36

I am grateful to the editors of this volume for their helpful comments on an earlier version of this chapter. Of course, I am responsible for errors and imperfections that may remain.

CHAPTER 10 THOUGHTS ON THE SOCRATIC OATH “ȝ‫ޠ‬/Ȟ‫ ޤ‬IJާȞ țުȞĮ” FLORA P. MANAKIDOU

1. Status quaestionis From Homer1 onwards and throughout Greek antiquity oaths are used to verify the truth of a statement and secure order in the case of perjury. As both a procedure and a belief the oath has been thoroughly explored in all its dimensions.2 In its pre-eminent position in social life and as a guarantee of its constitutive values, an oath was particularly linked to important principles such as ĮੁįȫȢ, ıȑȕĮȢ and IJȚȝȒ.3 Greeks usually determined the identity of the person or the power they invoked in the oath, a feature essential for the validity of swearing even among gods.4 The divine witness was believed to be the supreme guarantor of the truthfulness of the oath. An oath goes hand in hand with the danger of perjury and all the consequences one has to bear in such a case. An important factor in oath giving is the fear

1

On oaths in early Greek dispute settlement and Homer, see Thür 1996; Berti 2006, 183-193. In the major Homeric Hymns the oath is also vital in the relationships between divinities. For personified Horkos, see Hes. Th. 231ff., 804, 831, Op. 219225; together with perjury and justice (e.g. Op. 190-194, 238-239). 2 See Sommerstein and Bayliss 2013; Sommerstein and Torrance 2014. For a diachronic survey of the religious and ceremonial aspects, see Berti 2006, 181-209. 3 See Cairns 1993, 209 (A. Eu. 483-484, 680, 710); Konstantinidou 2014, 7; Berti 2006 passim. 4 The oath has “to guarantee that a statement is absolutely binding”; see Burkert 1985, 250.

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one feels for the divinity invoked because of its punitive power in case of perjury.5 The present investigation will focus upon one eccentric oath Plato makes Socrates swear: “by the dog”. As it appears within philosophical arguments, one needs to investigate the reasons why this animal is preferred.6 Are some specific canine qualities highlighted by Plato? If so, how do they affect the connection between the philosopher and the dog as an oath witness?

2. Socrates’ oaths and Eideshorte It is noteworthy that Socrates is frequently presented as swearing by traditional gods too,7 and that among his pupils only Plato mentions the oath “by the dog” 13 times in varied contexts: Ap. 22a; Charm. 172d-e; Cra. 411b3-4; Gorg. 461a7-b2, 466c3-5; Hp. Ma. 287e5-6, 298b5-9; Ly. 211e 68; Phd. 98e௅99a; Rep. 3.399e5, 8.567d-e, 9.592a. In one of these cases Socrates specified that the dog is the Egyptian god, who is identified with the dog-like Anubis: ȝ੹ IJઁȞ țȪȞĮ IJઁȞ ǹੁȖȣʌIJȓȦȞ șİȩȞ (Gorg. 482b4-6). Later sources inform us that he allegedly swore by other similarly odd things: the goose, the ram, the stone, and trees (plane tree; oak). And it seems that the dog-oath became a model for similar idiosyncratic oaths too.8 At first sight, the oath seems to belong to a special category known as Eideshorte that describes an oath invoking not a divine power as testifier, but an object or a personified power or an abstract concept, or even an animal or a plant.9 The question is whether the dog-oath is indeed an Eideshorte. The ambivalent perception of Socrates, either as pious or as ungodly, affects the answer to the question. In the first case, the oath would 5 On divine punishment, see Sommerstein 2013, 139-140. On fear and curse, see e.g. Hes. fr. 204.78-9; on “reconciliation oaths”, Thuc. 3.82.7, 83.2. See further Sommerstein 2013, 167-175. 6 I leave out of this investigation the Cynic ideas; Hotes 2014, esp. 29-32, is right to see two totally independent conceptions of the Cynic and the Platonic dog despite many analogies. Differently Husson 2011, 50. 7 E.g. to Zeus (Ap. 17, 20d, 32, 33c; 35d, 39c). On oaths in the Apology, see below p. 121. Translations of Plato are by Fowler 1996, unless otherwise indicated. 8 D.L. 7.32 on Zenon: ੭ȝȞȣİ įȑ, ijĮıȓ, țĮ੿ țȐʌʌĮȡȚȞ, țĮșȐʌİȡ ȈȦțȡȐIJȘȢ IJઁȞ țȪȞĮ (“They say that he was in the habit of swearing by “capers” just as Socrates used to swear by “the dog”, trans. Hicks). All the relevant cases are listed in Patzer 2003, 94-95. 9 Torrance 2014, 111-131. The Athenian Ephebic oath is characteristic: the testifiers are the boundaries of the fatherland, “the Wheat, the Barley, the Vines, the Olives, and the Figs”. See Burkert 1985, 251; Mikalson 2010, 143; Bayliss 2013, 21; Torrance 2014, 117, 119, 131.

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signal Socrates’ piety10 because later sources connected it with the so-called Rhadamanthine oath that took its name from the judge of the Underworld, Rhadamanthus. According to Plato he was, together with Minos, the best lawgiver among men of ancient times and also a shepherd of men. In his capacity as a judge he prohibited humans from swearing by the gods and other divine powers as witnesses, and incited them instead to take oaths by other non-divine entities such as the goose, the dog, the ram and similar things.11 In the latter case, the oath would be seen as another piece of evidence for Socrates’ introducing ਪIJİȡĮ țĮȚȞ੹ įĮȚȝȩȞȚĮ, endangering social morality and corrupting the young. Our main sources, Plato’s and Xenophon’s Apologies, do not explicitly mention perjury among the charges against Socrates, but the lost Polycrates speech and later sources included false oathgiving.12 Things become complicated as both Plato and Xenophon explicitly assert Socrates’ respect towards the oath and the gods. The former mentions the Ephebic Oath which Socrates once gave as a youth and kept in wartime.13 Xenophon recalls Socrates’ keeping of the bouleutic oath in peace as an active member of the polis of Athens, and in his Apology makes him criticize his accusers because they violated their oaths in their charges against him and openly states that he has never “sacrificed to new deities in the stead of Zeus and Hera and the gods of their company, or … invoked ill oaths or mentioned other gods”.14 A third explanation is to set aside any religious connotation. Already Dodds stressed the similarity of the dog-oath to the alternative Eideshorte Ȟ੽ IJઁȞ ȤોȞĮ, a phonetic distortion of the solemn oath Ȟ੽ IJઁȞ ǽોȞĮ and denied 10 This is the opinion of Hirzel 1902, 98 (Socrates’ high degree of morality, his sense of justice and his godfearing attitude); on the Pythagoreans see 99f. (with the sources of D.S. and 8.22 ȝȘįૃੑȝȞȪȞĮȚ șİȠઃȢ); on Socrates’ oath see 100 ff. See further Hoerber 1963, 269. For a similar idea, see below n. 16. 11 On Minos and Rhadamanthus, see Min. 321b3; see further scholia on Pl. Rep. 399e and Phdr. 228b; Zen. 5.81. Cf. Cratin. Cheirons fr. 249 K-A. Ȉ Ar. Av. 521. For a detailed discussion of Rhadamanthus’ legendary role in oaths, see Hirzel 1902, 90-108, esp. 96; Dubnar 1995, 357. 12 On the accusation, see Pl. Ap. 24b-c; Xen. Mem.1.1.1, Ap.10. On Polycrates’ Accusation of Socrates that according to Libanius included the teaching of false swearing, see Murphy 2019, 78-79. See also Cyrill c. Iul. 6.190; J. Ap. 2.263f.; Dillon 1995, 146. Suid. s.v. ȈȦțȡȐIJȘȢ įȚȩIJȚ IJઁȞ țȪȞĮ țĮ੿ ʌȜȐIJĮȞȠȞ įȚૃ ਫ਼ʌİȡȕȠȜ੽Ȟ [sic] įİȚıȚįĮȚȝȠȞȓĮȢ ੭ȝȞȣİȞ. A list of the sources in Patzer 2003, 100-101, 105. 13 Ap. 28e. See Price 1999, 96-97; Sommerstein 2013, 13ff. On his respect for the laws, see e.g. Pl. Ap. 32b (Hirzel 1902, 102 n. 21); Crt. 51dff. 14 Xen. Apol. 24. On the bouleutic oath, see Mem. 1.1, 18, HG 1.7, 15; Pl. Charm. 157c and the oath in jury Lg. 936-937a.

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any hint of irony, thus leaving open the question of Socrates’ piety or impiety.15 Patzer came to the conclusion that Plato’s Socrates used the dogoath ironically as an ad hoc invention, based on the common use of oaths of this sort in the everyday language of common people; but because it was difficult for others to grasp the connection of this specific oath to Socrates’ philosophical ideas, his practice served to corroborate the future accusation for impiety.16 The discussion becomes more puzzling if we take into account Socrates’ presentation in Aristophanes’ Clouds, namely in a contemporary reception of his activity as teacher of the Athenians.17 Aristophanes insisted on depicting Socrates as a teacher of new ideas, including his belief in new gods such as Chaos, the Clouds and the tongue (423-424). He made him explicitly invoke new gods: Aer, Aether and the goddesses Nephelae (264-266). When Strepsiades speaks of Zeus’ thundering that will punish perjurers, Socrates is made to say that thunderbolts are not instruments against perjury, because otherwise Zeus would smite not only perjurers but also his own temple, and even (his sacred) oaks; after all, Socrates argues, “an oak does not commit perjury” (398-402). When he swears, he invokes his new gods, Anapnoe, Chaos and Aer (627-629). Later his pupil, Strepsiades, denies the oath by Zeus (816-831; especially 826 ੭ȝȠıĮȢ ȞȣȞ੿ ǻȓĮ) and swears by the Aer and the Mist (667, 814 and 1232-1236, 1239-1242). In this context, Aristophanes’ exclusion of the dog-oath requires some explanation. In the Wasps, staged in the following year (422), the dog-oath was uttered by a slave (83).18 If it was a Socratic peculiarity, we would expect Aristophanes to exploit it. One rather far-fetched explanation could be that the poet was aware of a “serious” side of this oath relating to some Socratic doctrine, and therefore omitted it. Equally implausible is the possibility that he left it out 15

Dodds 1966, 262f. (cf. Dillon 1995, 146f.; Denyer 2019) on a “playful allusion” to dog-headed Anubis (like ȝ੹ IJઁȞ ǽોșȠȞ at 489e2). Stokes 1997, 119 denied any ironical approach and saw a sacred content according the sacredness of the Egyptian dog. 16 See Patzer 2003, 96, 100-107. ȉorrance 2014, 123 n. 172 in contrast denied any suspicion of impiety in this oath and comes to a rather dubious conclusion: it “seems to be a formula of ‘swearing without swearing’ …giving the semblance of the force and emphasis conveyed by the oath but without running the risk of divine punishment for falsehood” (131). 17 Dillon 1995, esp. 140 (together with Euripides’ oaths), 144-146. See also Patzer 2003, 101. 18 Starkie 1968, 124 believes that we have the ȇĮįĮȝȐȞșȣȠȢ ੖ȡțȠȢ as a reflection of the superstition of the speaker and as a sign of hypocrisy. Less confident is MacDowell 1971, 141: its origin is unknown and he takes it “as milder than an oath by the name of a god”.

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because everyone saw in it a pious Rhadamanthine oath. A much more logical explanation is that the historical Socrates did not swear “by the dog” at all and that this was Plato’s innovation. If so, then, we are obliged to search in the Platonic dialogues for an explanation. If there is something Aristophanes can contribute to this canine discussion, it is his own use of dogs as a steady presence (and nuisance) in urban everyday life. He followed the Epic and most of all the Iambic negative treatment of the animal,19 and introduced it as a shameless beggar who audaciously steals human food and is even comically put on trial for this crime.20 Because of its acknowledged greedy, begging nature and its shamelessness Aristophanes made it the model for a greedy repulsive Cleon (Knights 1023).21 It is possible that Plato took up the idea of the symbolic use of the dog and explored its potential in his depiction of Socrates. 22

3. The dog and Plato’s Socrates To start with, the context in which the oath appears is never conducive to any persuasive explanation. Contrary to the negative evaluation of the animal in the epic, iambic and comic presentation,23 the Platonic dog appears under a consistently positive light with two main qualities that are summarized in the Republic (5.466c9) in close connection with men:

19 Franco 2014 offers a thorough (and well worth reading) overview on the multisided nature and behaviour of dogs from Homer onward, and explores the dog as a metonymic case, both similar to and different from man. On the cognitive qualities of the hunting and guardian dog, see her chapter 2 with a presentation of the Platonic passage in Republic. For the negative nature of dogs, especially in wartime, and the use of dog as invective (shamelessness) and blame (cf. țȣȞȫʌȘȢ, țȣȞ૵ʌȚȢ, țȣȞȐȝȣȚĮ), see e.g. Faust 1970, 8-31; Redfield 1975, 194-199, 193-202; Lilja 1976, e.g. 21-23; Nagy 1979, 226-227; on Helen the dog (and self-slanderer), see Graver 1995, 41-61; Worman 2002, 49-54; 2008, 32-40. Aristotle names three qualities of the dog (HA 488b22): șȣȝȚțȐ, ijȚȜȘIJȚțȐ, șȦʌİȣIJȚțȐ. 20 Worman 2008, 93. 21 Worman 2008, 91, 92-94, 231. She provided a Socratic portrait of an abusive character. 22 Ar. Eq. 259-260, 691-701, 1014-1029; Vesp. 672-677, 970-972. See Worman 2008, 91, 92-94, 231, on the analogy between Socrates and Cleon 94-97. In the Platonic dialogues she recognized the low discourse of iambus and an abusive framing of figures. See next note. 23 On the “doggish, abusive outsider, hungry and given to conflict” type in other genres, see Worman 2008, 44 (iambic), 50ff. (epinician), 58 (tragedy), 230.

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humans should “guard and hunt” (ıȣȝijȣȜȐIJIJİȚȞ, ıȣȞșȘȡİȪİȚȞ) “like dogs” (‫ޔ‬ıʌİȡ țȪȞĮȢ).24 As hunting companions,25 dogs are often called “hounds on the trail” and (as in the Republic) the interlocutors are often compared to them, in their own human searching (țĮșȐʌİȡ țȣı੿Ȟ ‫ݧ‬ȤȞİȣȠȪıĮȚȢ įȚİȡİȣȞȘIJȑȠȞ, Lg. 2. 654e3). Socrates, especially, is presented as a searcher who tracks down the arguments like a noble (Laconian) dog: “You follow the arguments with a scent as keen as a Laconian hound” (Prm. 128c1). The verb ੁȤȞİȪİȚȞ is also employed with reference to the search for ideas (Phdr. 252e 7; Plt. 263b1). ȌȣȤȒ is “better fitted by nature … the tracking of what is best of all and consequently, grasping it” (Lg. 5. 728d1). The tracking metaphor returns in the imagery of șȘȡİȪİȚȞ and șȒȡĮ as Socrates’ way of dealing with arguments (Phd. 115b-c; 66a and c respectively).26 Equally, Socrates undertakes a mission in order to seek the truth about the Apolline oracle in the Apology. This transforms him into the human hound going from one group to the other in the hunt for his own identity as wise. Significantly, this quality defines him from his youth, as this is a retrospective narrative about the beginning of the dislike (Ƞੂ ʌȡ૵IJȠȚ țĮIJȒȖȠȡȠȚ, 24b3) he aroused among many, which in the end led to his trial (23a). But, on the contrary, it is precisely this dog-like inquiry (ਥȟȑIJĮıȚȢ) that should be seen as further evidence of his piety (įȚ੹ IJ੽Ȟ IJȠ૨ șİȠ૨ ȜĮIJȡİȓĮ, 23c). Furthermore, it is this search that made many young people gather around him and willingly imitate him because they enjoyed his method of ਥȟȑIJĮıȚȢ (23c3-5). If so, then the unique appearance of the oath-dog in the Apology (22a) can be justified despite its provocative use in a trial for impiety (26b8-c7) and with the prospect of a death sentence.27 Moreover, Socrates had already confirmed his truthfulness by swearing to Zeus in opposition to his rivals (17b). The other quality of the dog places it high in the hierarchy of animals in its contact with men. In Xenophon Socrates refers to the “fable of the dog” 24 Plut. Mor. 51 (276f-277a) links these qualities together: “good at following tracks and hunting down evildoers” (Franco 2014, 265-266). My italics in the Greek citations. 25 There is a great deal of material on hunting dogs in Xen. Cyn. e.g. 4.4, 6.15. 26 See Stavru 2018, 236-237: “this suggests that Socrates stood out for this ability for his whole life”. More on hunting dogs: Lg. 7.824a (England, The Laws of Plato, vol. I I, 1921, p. 325); Rep. 459a; Euthphr. 13a19; cf. IJ‫ݫ ޟ‬ȤȞȘ IJࠛȞ ȜȩȖȦȞ Rep. 2.365d. Female dogs are praised for their hunting ability (Rep. 451d). See further, Arist. HA 608a21-28. 27 In a trial the jury has to respect their own oath (35c4-d, Lg. 949a6; and the oath in Dem. 24.149-151) as a sign of their piety, and there are also ਕȞIJȦȝȠıȓĮȚ by the contestants (Harrison 1971, 99-100).

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(of unknown author), where the animal is the guardian of the sheep (Mem. 2.7.13-14 = P 356a).28 In Plato this feature is particularly highlighted and explored. It is a feature they share with the gods, given that the latter “are the greatest of all guardians and over the greatest things” (Lg. 10.906d, 907; and e). Training is nevertheless essential for this role too as in all things referring to the right organization and constitution of the state. Therefore, the warriors need a more “subtle system of training, for they must be sleepless as watch-dogs, and of very sharp sight and hearing” (੮ıʌİȡ țȪȞĮȢ ܻȖȡȪʌȞȠȣȢ IJİ ਕȞȐȖțȘ İੇȞĮȚ țĮ੿ ੖IJȚ IJȚ ȝȐȜȚıIJĮ ‫ݷ‬ȟީ ‫ݸ‬ȡߢȞ țĮ‫ܻ ޥ‬țȠȪİȚȞ, Rep. 3.404a, trans. Lindsay).29 Even the animals that by nature possess this quality need training, because otherwise “shepherds find it difficult to keep dogs to guard their flocks which are so badly bred or trained that from want of discipline or hunger or from some other evil in their nature, they will dare to worry the sheep, and act like wolves rather than dogs (Rep. 3.416a). ȅne shared quality of the dog qua hunter and guardian is obedience to his master’s voice: in a simile the animal stands for the man who believes himself to be wronged and who is called back by the reason within (ਫ਼ʌઁ IJȠ૨ ȜȩȖȠȣ) and calmed down, “as a dog is called back by a shepherd”.30 In this context, Plato also compares the helpers (ਥʌȓțȠȣȡȠȚ) in the city with dogs insofar as they are “subject to the rulers like sheep-dogs of the city’s shepherds” (Rep. 4.440d).31 Socrates paraphrased the well known axiom of Protagoras that a man is a measure of all things, and added the dog: “neither a dog nor any casual man is a measure of anything whatsoever that he has not learned” (Tht. 171c1). Young dog imagery is used for young men approaching dialectics: “they imitate those who refute them, and refute others in their turn, delighting, like puppies, in dragging about and pulling to pieces with words whoever happens to be near them” (Rep. 7.539b). In his presentation of Socrates, 28 Also sheepdog in 2.3.9, 9.2. See Van Dijk 1997, 336-340, esp. 339: the dog is made to swear “to Zeus” and it is not a coincidence that Xenophon has Socrates select a fable with a canine protagonist. See further Zafiropoulos 2001, 100. Already in Homer the guard dog is accurately described (Odyssey 14.29-32, 37-38, 16.4-7, 8-10, 161-163). 29 Like Aesop (see below in his Vita), Demosthenes compared himself to dog watchers of Athens according to the Aesopic fable P 153, and this is a model for Aesop the dog watcher too (see Zafiropoulos 2001, 106 n. 51). On Demosthenes’ bestial imagery, where the speaker is accused of being a bad dog as guardian of the demos who fails to bite the wolves and consumes the sheep instead (25.40), see Worman 2008, 231. 30 A master beats his dog: as analogy of the rational that keeps at bay the irrational Plato uses the master-dog relationship at Rep. 441b-c. See Franco 2014, 587 n. 139. 31 A case of dogs against whom someone has to fight in Rep. 4.422d.

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Xenophon similarly emphasized his quality as a useful partner for the youth and, in particular, mentioned how the philosopher expounded the need for education even for those who thought that they possessed natural endowments and despised learning. To corroborate this belief, Xenophon’s Socrates also drew from the canine world, with the training of dogs being essential for their usefulness: “and high-bred puppies, keen workers and good tacklers of game, make first-rate hounds (ਕȡȓıIJĮȢ) and useful dogs (ȤȡȘıȚȝȦIJȐIJĮȢ), if well trained, but, if untrained, turn out stupid, crazy, disobedient brutes. It is the same with human beings” (Mem. 4.1.3, trans. Todd). In the context of education, the imagery of shepherding assimilates the teacher to a shepherd and the children to the sheep (Lg. 7.808d2). The shepherd is also often compared to the king (e.g. Plt. 268c1, 267d6, 267e9, cf. 265d4, 268b6). Minos and Rhadamanthus, IJ૵Ȟ ʌĮȜĮȚ૵Ȟ ਙȡȚıIJȠȚ ȞȠȝȠșȑIJĮȚ, are called herdsmen (Min. 321b3 and esp. 321c). Especially, in the constructed world of Socrates’ ideal city, teacher and king are not only vital for the youth but also share a common identity, that of the guardian.32 In his depiction of the guardian’s qualities (first mentioned in Rep. 2.374e), Socrates is interested in the well born youth (ȖİȞȞĮ૙ȠȢ) and agrees that apart from education this duty requires a certain natural disposition fitting to it (the term used is ijȪıȚȢ ਥʌȚIJȘįİȓĮ). Plato makes Socrates introduce the dog as the best model by nature for his guardians in the ideal city with the playful similarity of ıțȪȜĮȟ-ijȪȜĮȟ (2.375a-376): “do you not think … that so far as their fitness for guarding is concerned, a noble youth and a well bred dog are very much alike?” (375a). By that he means: “each of them must be sharp-sighted, quick of foot to pursue the moment they perceive, and strong enough to make captures and overcome opposition when necessary” (375a). He goes on: “And they must certainly be brave”. ǹnd further: “will either horse or dog or any animal be brave if it is not spirited? Have you not observed that spirit is unconquerable and irresistible? Every soul possessed by it will meet any danger fearless and unshrinking” (375b). He concludes that these are the physical qualities of both the guardian and the dog. The qualities of the soul are summarized in the term șȣȝȠİȚįȒȢ, “of high spirit” (375b). The guardians must be both gentle to their friends and harsh to their enemies. Such an admission leads the discussion to a dead end: “Where shall we find a character at once gentle and high-spirited?” (375d). Obviously, there is a contradiction between the spirited type and the gentle 32 See Hotes 2014, 21-29; Piccone 2015, 107ff. reads the canine imagery in the light of Heraclitus’ dog B 97 (and its political implications) and (108) Odyssey 16 and 17. We may add [Theocr.] 25.78-83. See Tait 1949, 203-211 on philosophia as love of knowing and love of the known.

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type, and such seemingly incompatible requirements appear to make a good guardian possibility just “an impossibility”. It is now that Socrates recalls the dogs he mentioned earlier: “In many animals, but perhaps best in that with which we compared our guardian. Well bred dogs (ȖİȞȞĮȓȦȞ țȣȞࠛȞ), you surely know, are naturally of that disposition (ijȪıİȚ Į੝IJ૵Ȟ IJઁ ਷șȠȢ: character … by nature [Piccone])—as gentle as possible to their friends and those whom they know, but the very opposite to strangers” (375d-e). After that, he is able to proceed to the next conclusion: “the character we seek in our guardian is possible, and not contrary to nature” (375e). After having defined both the physical features (ı૵ȝĮ) and the natural disposition (ijȪıİȚ ਷șȠȢ, which, as we saw, can include two opposite qualities), Socrates adds another quality for his ideal guardian: “the philosopher in his nature” (ਛȡ’ Ƞ੣Ȟ ıȠȚ įȠțİ૙ ਩IJȚ IJȠ૨įİ ʌȡȠıįİ૙ıșĮȚ ੒ ijȣȜĮțȚțઁȢ ਥıȩȝİȞȠȢ, ʌȡઁȢ IJ૶ șȣȝȠİȚįİ૙ ਩IJȚ ʌȡȠıȖİȞȑıșĮȚ ijȚȜȩıȠijȠȢ IJ੽Ȟ ijȪıȚȞ; 375e).33 He thus pushes the analogy with the dog to its limits and plays with the double meaning of philosophos as both lover of wisdom and lover of what is known. He openly admits that no other creature possesses this double quality apart from the dog, which is therefore “worthy of admiration” (376); when Glaucon asks him why this is so, Socrates answers through experience (376): dogs are angered “when … [they] see a stranger, … but if they see someone they know, they welcome him, even though they have received no kindness at his hands” (376). A further conclusion is given regarding the dog. ȉhe animal is identified with the “lover of wisdom”, which is identical with the lover of learning (ਝȜȜ੹ ȝ੽Ȟ țȠȝȥȩȞ Ȗİ ijĮȓȞİIJĮȚ IJઁ ʌȐșȠȢ Į੝IJȠ૨ IJોȢ ijȪıİȦȢ țĮ੿ ੪Ȣ ܻȜȘșࠛȢ ijȚȜȩıȠijȠȞ, 376b). ȉhis is so, Socrates goes on, because the animal “distinguishes between a friendly and an unfriendly face, simply by the fact that he knows the one and is ignorant of the other. Now, how could the creature be anything but fond of learning when knowledge and ignorance are its criterion to distinguish between the friendly and the strange? … but is it not the same thing to be fond of learning and to be philosophical?” (376a-b).34 The fourth conclusion refers to the human guardian but implicitly also describes the dog as conceived above: “who is to become the fine and noble guardian shall be by nature a lover of wisdom (ijȚȜȩıȠijȠȢ), high-spirited, quick and strong” (trans. Piccone). In a nutshell, the ideal phylax is,

33 Trans. Piccone 2015, 107: “to become in his nature a lover of wisdom besides being high-spirited”. 34 For Aristotle this is a sign of impulsiveness (Nic. Eth. 7.1149a25-32); see also his observation on dogs not biting those who sit down (Rh. 2.3.6, 1380a).

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according Plato’s Socrates, identical with an ideal watchdog,35 since both are well bred creatures with a particular disposition to physical and spiritual qualities, and both possess the love of learning and the love of wisdom. Notably, these guardians are conceived to be of crucial importance for the correct education of the young, and in Book 5 an elite among these guardians will be promoted to philosopher-kings, and consequently will become the people’s shepherds. While these helpers (ਥʌȓțȠȣȡȠȚ) are compared to dogs, the kings (like the teachers) are compared to shepherds and thus the analogy is consistent throughout (“and indeed in our city we have made the auxiliaries subject to the rulers like sheepdogs of their city’s shepherds”, 4.440d, trans. Lindsay). Finally, we are reminded that in this construction Socrates spoke of female and male watchdogs and their duties as a zoological analogy to humans (451d). In this complete zoological imagery, we recall Socrates’ own mission as described in the Apology. As already mentioned, there he presents himself as searching for his personal truth like a hound; in his mature days, he examines others in his pursuit for truth and virtue. This opposes him to the sophists as hunters of youth for financial profit (Sph. 231d2-3). Socrates also compares himself to the stinging fly of the Athenians, who are in turn compared to a noble, albeit lazy horse (30e).36 Finally, in Euthydemus we encounter a climax in the exploration of all these analogies, which is actually an absurd reversal of the systematic and consistent humanization of the dog. The analogies between man and dog create the outrageous sophistry for a sort of “animalization” of humans.37

4. The oath’s fabulistic background: Socrates and Aesop The next question is: how are we to understand all these analogies between animals and humans? Are they to be taken seriously?38 Or are they another case of Socrates’ pleasantries or irony or parody of the school of the sophists?39 The idea that the world of animals can provide a model for 35 N.b. it is a shameful thing for a shepherd to raise a dog that attacks the flock (Rep. 416a-7). 36 On the analogy of dog and fly (țȣȞȐȝȣȚĮ), see Franco 2014, 241-246. 37 Euth. 298d. As a metaphor, see Rappe 2000, 205; the Platonic “your father is a dog” ends up in Antisthenes as the “Father of the dogs”, the “Haplokyon” (the first “Dog” according Goulet-Gazé 1996, 414-415). Be that as it may, the dialogue is full of sophistries and fallacies. 38 Mainoldi 1984, 189-197. It is also important that Plato notices the danger when a dog could become a wolf (3.416a). 39 Joke, parody: Sinclair 1948, pace Tait 1949, 203-211; Hotes 2014, 5, 22 (and n. 64).

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humans was already present in Democritus (Plu. Mor. 974a) and was also comically explored by Aristophanes in the Clouds, where he mocked Socrates in many ways40 and pictured Cleon as a shameless dog.41 The treatment of an animal as a metonym for the human condition leads, of course, to the Aesopic fabulistic world, which shared with Socrates the pursuit of moral instruction. In a much later work Philostratus admitted that Aesopic myths are “more essential to wisdom than the others”, Aesop “makes use of the simplest things to teach grave lessons”, and in contrast to the poets’ inclination for lying, he “showed more concern for the truth” and “used fiction for the benefit of his audience” (Philostr. VA 5.14).42 The benefit of the audience and the truth were also the main goals of Socrates’ philosophein. Aesopic dogs also feature in the two qualities of guardian of sheep and of hunters. As expected, they behave according to their ambivalent nature: because of their gluttony and the relationship with food their service to the master is not always positive.43 A combined reading of Plato’s Socrates and Aesop’s novel-like biography (G)44 provides a nexus of analogies as well as differences between the two men as regards their lifestyle, ideas and mission. Both despite and because of their high moral standards they ended up in a sort of pharmakosfate; even so, in their last moments they both enjoyed Apolline protection.45 40 For a good summary of this comic caricature, its divergences from Plato and Xenophon and the consistency of comic presentation in other comedies, see Dover 1968/1978, xxxii-xxxvi, xli-lvii; his explanation of this Aristophanic presentation as a hostile attitude towards an intellectual, seen as an abnormal man, is open to debate. ȉhe poets “abused” the philosophers “by likening them to “dogs howling at the moon,” with “other such senseless slanders” (Lg.12.967d). 41 ǿn the Wasps too; see Worman 2008, 92-94. See above n. 21. 42 Trans. Lissarrague 2000, 147. 43 Not trustworthy: P 120, 134, 153, 206. Sheepdog as guardian: P 97, 153, 206, 254 (Nagy 1979 on the theriomorphic Aesop). Hunting: P 132, 136; Zafiropoulos 2001, 100; 2015 111 n. 17; Van Dijk 1997, 336-340. Philocleon recalls the anecdote on a bitch barking at Aesop (Wasps 1401-1405); see Zafiropoulos 2015, 16; Graver 1995, 47 observed the negativity of the Aesopic dog (P 135, 206, 253, 254, 264, 342, 415), very close to the Homeric dog insult language (especially as regards greediness and dependence on the belly). 44 See especially Zafiropoulos 2011, 203-216; 2015, passim, e.g. 40-41, 56, 113ff., esp. 196-205, 202-203. Already Compton 1990, esp. 338-341, 346; 2006; Papademetriou 1997, 10, 33-35; Konstantakos 2003, e.g. 109; Schauer and Merkle 1992, 85-86 highlighted the differences rather than the similarities, and examined the Socratic reflections on the Aesop-Roman (90-93), but came to the conclusion that Aesop is made in the end a “Gegentypus zu Sokrates” (93-96). Without knowledge of this, Clayton 2008, 311-328, esp. 313ff., comes to the same conclusions. 45 Compton 2006, 340.

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In particular, their appearance resembled that of animals and advertised them as the two famous ugly wise men of antiquity. Aesop’s deformity has been treated, described and explored in great detail by writers and artists,46 and the same trait was stressed in many ways for Socrates. Aesop was characterized as dog-headed (țȣȞȠțȑijĮȜȠȢ, 11 and 29 G) and “dog in a basket” (țȪȦȞ ਥȞ ȖȣȡȖȐș૳, 88).47 Socrates was presented as Silenic and Satyr-like with his snub nose, protruding eyes and huge belly (different from his slim appearance in the Clouds) and even shortness.48 Their external deformity was conceived as another sign of their provocative, almost revolutionary, nature as it presents them as deviating from the common Greek inclination towards external beauty and admirable nobility. Plato showed how one has to search behind appearances in order to discover the wealth of an inner quality, stressed in Socrates’ double nature of ਩ȟȦșİȞ and ਩ȞįȠșİȞ (Symp. 216d), and this is valid for Aesop too.49 This fits well with Plato’s idea that dogs are not classed among animals living in herds (Plt. 266a). If so, then the two men were conceived as isolated and ill-received wise men because of their misunderstood ideas and behaviour.50 Aesop presented himself as a dog not to be handed to Croesus (wolf) by his sheep, the Samians (97 G).51 Socrates was likened to a Satyr or Silenus (Symp. 221d5-6) and as already mentioned, in Parmenides, a late work on Socrates’ youth, Zeno compared the young Socrates to Laconian female hounds because of their shared ability to track down and follow the scents in their mission (128c).52

46

Perry T 30 (Himerius Orationes 13.5). See Papademetriou 1997, 13-42; Lissarrague 2000, 135, 137-139 (e.g. Lysippus made statues of both Aesop and Socrates). 47 See Zafiropoulos 2015, chap. 4 and esp. 136-139, 198; Lissarrague 2000, 132149; Compton 1990, 344; Nagy 1979. 48 On Socrates’ physiognomy in Plato and Xenophon, see Stavru 2018, who explains the Silenus motif “in order to redefine inward and outward beauty” (227). Aesop narrated a story on his master’s she-dog and her total devotion to him (G 44-51). 49 See Stavru 2018, 212-214, 219 with literature. 50 On Aesop’s death, see Plut. Mor. 556f-557a; Compton 1990, 331-333, 335; Zafiropoulos 2015 esp. chapters 4 and 5, e.g. 201-203 (already Zafiropoulos 2001, 18-19, 20 and on Socrates the fabulist 21, n. 64; 2011, 208-216). 51 For Aesop’s theriomorphic figure and especially his association with the dog, see Nagy 1979, 315-316. Cf. Piccone 2015, 109 on Heraclitus “the divine dog who barked at the mob” (șİ૙ȠȞ ਫ਼ȜĮțIJȘIJ੽Ȟ įȒȝȠȣ țȪȞĮ). 52 On Derrida’s Socratic bestiary, see Stavru 2018, 228-235, 236.

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Furthermore, Platonic dialogues offer “our richest source of Aesopic fables”.53 Plato’s Socrates often mentions fables (as we saw, in Apol. 30e4). In Phaedo, especially, we find a telling reference to Aesop in the crucial last moments of Socrates’ life. Cebes mentions Socrates’ activity of putting the fables of Aesop into verse (ਥȞIJİȓȞİȚȞ);54 Socrates admits that “since I was not a maker of myths myself, I took those myths of Aesop which I had at hand and knew and turned into verse the first ones that I came across”, after obeying a dream that urged him to “compose and practise music” (60c861b7, ȝȠȣıȚț੽Ȟ ʌȠȓİȚ țĮ੿ ਥȡȖȐȗȠȣ 60e6-7 = Perry T 73). This kind of music is called “popular” (įȘȝȫįȘȢ).55 Only shortly before, Socrates recalled Aesop because, in his view, he could be the right person to create a fable dealing with Socrates’ experience of the strange coexistence of pain and pleasure: “I think … that if Aesop had thought of them, he would have made up a fable” (60c1-2). Regardless of the specific implications of its context, this hypothetical fable56 is telling for the close link that Plato wanted us to recognize between Socrates and Aesop. Plato found in the Aesopic myths a background for his inclination to intermingle the playful/everyday with the serious/elevated.57 With the oath “to the dog” Plato hinted once again at the fact that Socrates “was the first who drew philosophy away from the study of the cosmos … and diverted it to the objects of ordinary life” (Cic. Tusc. Disp. 5.4.10). Consequently, it is misleading to judge the oath for its religious value as another Eideshorte. Socrates is presented as a dog-like searcher and guardian. It is a logical step to accept that the absence of the oath in Aristophanes and Xenophon is not 53

See Zafiropoulos 2015, 110, also 24-25, 110-114 based on van Dijk’s collection of fables within the dialogues (111f.): all are aetiological fables. For fables as a “typical ingredient of Socrates’ dialectics”, see Van Dijk 1997, 340, revisiting Nietzsche on Platonic “hybrids”; Nightingale 1995; Kurke 2006; 2011 (esp. chap. 6) worked out Aesop’s influence on Plato in matters of form, style and content (pace Nagy 2011); Worman 2008, 155 revisited the idea of low prose and high poetry and argued for a Platonic iambic discourse with abusive speech (chap. 4 and esp. 161166). 54 See Zafiropoulos 2011, 204-207, on ਥȞIJİȓȞİȚȞ 205 n. 10 and 2015, 57-58, and on Socrates’ philosophical mousike 59ff. 55 On Alcibiades’s description of Socrates as musician, cf. Symp. 215b-e; Compton 1990, 330. 56 On Socrates Aesopicus in this passage, see Zafiropoulos 2015, 51-58, 113f.; Compton 1990, 340-342. The editor of Aesop Demetrius Phalereus also wrote on ȈȦțȡȐIJȘȢ (122-125). 57 On Plato’s playful-seriousness in philosophical education, see Ardley 1967, 234238; D’Angour 2013, 299-301, 304-307. I am much indebted to Dr Christos Zafiropoulos and Dr Andreas Antonopoulos for all their comments.

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a fortuitous omission, but evidence of its Platonic origin. As an ad hoc invention, in accordance with Plato’s imagery, the oath is a product of ਥȞIJİȓȞİȚȞ the prosaic disposition of the animal into a targeted philosophical symbolism, thus enhancing the poetics of philosophical ıʌȠȣįĮȚȠȖȑȜȠȚȠȞ.

CHAPTER 11 THE DICAST AS WITNESS IN ATHENIAN TRIALS CHRIS CAREY

My theme is a minor item in the toolbox of the Athenian forensic speaker. I wish to explore the way the judges in Athenian trials are drawn rhetorically into the nexus of evidentiary sources.1 This is not (or not primarily) about the formalities of witnessing in Athenian courts. It is about rhetorical extensions of the idea of witnessing, both terminological and conceptual. Inevitably, however, the ploy draws for its effect on cultural assumptions surrounding the witness. Witnessing has been much discussed in recent years and publications over the last two decades or so have underlined some of the complexities of the role. In some respects, the witness is for the Athenians what the witness is for us, a key source of evidence. Gerhard Thür observes that it is the only enforceable means of discovering the truth in Athenian trials.2 As such it is one of the most important elements in the Athenian judicial system. This aspect has been undervalued to some extent in recent years. One important line of research, initiated by Sally Humphreys and developed by Stephen Todd, stresses the sociopolitical aspect of witnessing, as a visible act of solidarity and support for a litigant.3 As Todd memorably puts it, two things count with witnesses, who you are and what you say; he adds that when the two aspects conflict, who you are is more important than what you say. But 1

For a brief but useful note on the topos, see Todd 2007 on Lys. 10.1, and the pertinent remarks of Mirhady 2002. 2 Thür 2005, 163. 3 Humphreys 1985, 322-324; Todd 1990, 27. For a robust response arguing the case for the evidentiary role of witnesses, see Mirhady 2002. For a more extreme case for the “support” thesis (that witnesses lie and are expected to lie by all parties), see Cohen 1995, 107-110, and for a rebuttal, Mirhady 2002, 266-267.

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it is a mistake to turn witnessing into a purely or even primarily social or political phenomenon. Witnesses always attest fact. And witnesses were vulnerable to action. Crucially they were not legally liable to prosecution for being on the losing, or winning, or just the opposing side but for the factual content of testimony. And witnesses must speak from first-hand knowledge. Hearsay evidence was ruled out (with only one exception, the words of a dead man).4 And anyone called to give evidence could decline on grounds of ignorance—either they do not know or they were not present.5 But though the case for witnesses as primarily a means of displaying support is unconvincing, identity and relationships matter, in terms both of the practicalities of securing witnesses and of impact in court. There is a sociopolitical dynamic at work. It was the responsibility of the litigant to obtain his own witnesses and ensure their presence in court. For anyone asked to act as witness there was an element of inconvenience at the least and risk of prosecution at the worst, since prosecution for false testimony from a disgruntled litigant against whom one had testified was always a possibility, however unquantifiable the risk.6 Consequently the system creates a strong reliance on friendly witnesses. In a much-quoted passage Isaeus at 3.19 notes that people approaching any act with legal implications take along friends as witnesses. “Who you are” matters in another respect. As David Mirhady notes, in cases involving estates there is a marked presence of family members, while in cases involving citizenship there is a marked presence of members of demes and other civic groups.7 These are of course the most obvious source of confirmation of fact. But the presence of a significant number of people close to the case at the litigant’s side also offers an element of reassurance about the overall strength of a litigant’s position to a judicial panel at some remove from events, even where the specific facts they attest are not critical for the decision. In public cases the presence of witnesses with a high profile and some claim to public goodwill enhances the credibility of the testimony. The need for the litigant to secure his own witnesses and the consequent reliance on friendly witnesses where possible align the witnesses firmly with one party to the dispute.8 The witness is in some sense part of the litigant’s team, even if his formal role is to confirm the truth of supposedly 4

[Dem.] 46.7, 46.9, 57.4. See briefly Harrison 1971, 143-144; fuller discussion in Carey 1995; Martin 2008. 6 For the dike pseudomartyrion, see Volonaki in this volume. 7 Mirhady 2002, 262-263. 8 See Thür 2005, 165-167. This is not peculiar to classical Athens but is present in any adversarial system where the parties or their representatives have to adduce their own witnesses, as Brenda Griffith-Williams rightly reminds me. 5

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factual statements. And the Athenian jurors, or indeed anyone who had ever been in court in any capacity or simply paused to consider the implications, cannot have been unaware of this. But the relative rarity of attacks on witnesses on simple grounds of partisanship,9 and the fact that no attempt was made to change the system, suggest that the Athenians were satisfied that the deterrents were sufficient to prevent widespread abuse and the penalties sufficient to deal with proven cases of false testimony.10 Though a single person could combine the roles of witness and supporting speaker in the same trial, there was a rule preventing the litigant from being his own witness.11 We are not told anywhere whether judges could ever be summoned as witnesses. But it never happens and the clause in the judicial oath requiring them to give an equal hearing to both sides suggests that they were either legally barred or culturally deterred from formally acting as witness. So what I am examining is not courtroom practice but rhetorical metaphor. It is a metaphor which has its roots in a larger pattern of appeal to the shared knowledge of the judges which is common in the orators. “You know” or “you all know” is a more direct and so more powerful way of saying “everyone knows”, a gesture which Aristotle regards as a clichéd device of the logographers.12 Aristotle astutely puts his finger on the psychology of such appeals to common knowledge, whether specific to the judges or allegedly shared across Athenian society; everyone is invited to see himself as the only one who does not know the truth, and the resultant sense of shame is meant to induce him to take the statement as fact and behave accordingly. The author of [Dem.] 40 presents this as a dishonest practice favoured by people with a weak case,13 since it allows a speaker to make assertions for which he has no evidence. He is right to the extent that there was no way to test the truth of such assertions; so the only obstacle to misleading claims was the pragmatic need to avoid blatant falsehood. But it was a commonplace for a very good reason. It worked. Or more precisely (since there was never any prospect of recording, or even knowing, the ratio decidendi of such a large body voting individually, anonymously and without formal discussion, or the impact of any one argument or testimony on the final decision), litigants and logographers felt that it worked, or even 9

Dem. 39.33 is illuminating in this respect. Boeotus’ witnesses are attacked not just on the grounds of partisanship, as friends of the opponent, but as partners in his nefarious activities. 10 For the balance between friendship and veracity, see Mirhady 2002, 269-270. 11 Isae. 12.4; Aeschin. 2.170 with 184; [Dem.] 40.58, 46.9. 12 Arist. Rh. 3.7.7, 1408a.32-36. 13 [Dem.] 40.53-54.

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simply that it might work. The appeal to the dicast as witness is simply a refinement of this basic logographic device. The appeal to audience knowledge can exist along a spectrum, from general reference to character, reputation or situation through to specific matters which the audience can (allegedly) confirm from their own experience. The dicast-witness motif more usually refers to specific acts and events (unsurprisingly, since that is the role of the witness in court), less often to general patterns of behaviour. But though the two formulations overlap, the effect is not identical. The application of the language of witnessing to the judges allows the speaker to reduce the distance between the judges and the events in dispute by casting them in the role of sources, not recipients, of fact. It also, in a legal culture where the litigant provides his own witnesses, implicitly enlists their support for his position. Finally, it frequently, and crucially, comes with implications of autopsy. The effect is increased when the metaphor is reinforced with the linguistic paraphernalia of formal witnessing; martyrein and the noun martys are occasionally reinforced with introductory formulae for the presentation of witnesses or allusion to the underlying legal rules in relation to the process through the use of the verb pareinai, “be present”. The appeal rests on a very simple logical principle, that one can believe the evidence of one’s own senses. It is set out most succinctly at Aeschin. 1.78: “For your view, I think, is that you need no further discussion or testimony in matters that a man knows himself for certain”. The disgruntled comment of the speaker in [Dem.] 40 that the “everyone knows” topos is a useful way of glossing over the absence of witness testimony is also applicable to the dicast-witness motif. Lys. 22.12 offers a straightforward example: If they were doing this for your benefit, they ought to have been seen selling it at the same price over several days, until the stock that they had bought up was exhausted. But in fact they were selling it a drachma dearer several times in the same day, as though they were buying by the medimnos at a time. I adduce you as witnesses of this.

This is one of those cases where the speaker uses the full formula for witnessing. Instead of simply saying “you are my witnesses”, the speaker says IJȠ઄IJȦȞ ਫ਼ȝ઼Ȣ ȝ੺ȡIJȣȡĮȢ ʌĮȡ੼ȤȠȝĮȚ, “I adduce you as witnesses of this”; his wording differs from the regular witnessing formula only in substituting the accusative for the dative and the present for the future (usually IJȠ઄IJȦȞ ਫ਼ȝ૙Ȟ ȝ੺ȡIJȣȡĮȢ ʌĮȡ੼ȟȠȝĮȚ, “ǿ shall adduce witnesses of this for you”). The substitution of the accusative is a para prosdokian which adds emphasis to the motif. The context is a claim by the speaker that the corn-dealers deserve

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no sympathy because they routinely manipulate prices to maximize their profit at the expense of the ordinary people. The claim may or may not be true; it is likely in fact to be true of some traders, since profiteering will take place in any environment which allows the opportunity. But given the extent of the Athenian reliance on imported grain and the consequent vulnerability of every household, an unsubstantiated allegation like this against those who control the grain supply has a powerful appeal to popular prejudice. And the recruitment of the judges to the role of supporting witnesses invites them to view their prejudices as established fact, so that the claims need no external validation. In Lys. 22 the judges are witnesses simply by virtue of being Athenian citizens. More often the motif is accompanied by the gesture of audience assimilation. It is a commonplace in Athenian courtroom speeches to address the judges with the second person when referring to decisions of the Assembly (even at some remove in time) or by other judicial panels, as though these bodies were identical.14 A simple instance is Aeschin. 2.44. Up to this point his narrative has dealt with events during the embassy to Macedon. In a neat transition Aeschines moves to events in Athens and recruits his audience in his support. Thus far, he says, my fellow-envoys are my witnesses. But the judges themselves heard the statements made in the Assembly; he adds: “so I have no room to lie” (੮ıIJİ Ƞ੝ț ਥȞȑıIJĮȚ ȝȠȚ ȥİȪįİıșĮȚ). The presentation of the judges as witnesses alongside his fellow-envoys is repeated in §§55-56. In §55 he calls his fellow-envoys to support his statements and then adds in §56: “For the reports that we delivered you are my witnesses, and for what was said in Macedonia and events on our journey I have provided our colleagues as witnesses”. Lys. 12.74 offers a more subtle instance of audience assimilation. The context is the Assembly meeting where the regime of the Thirty was voted in under duress with the threat of military intervention by Lysander: Theramenes, judges (and I shall cite you yourselves as witnesses to this), said that he cared nothing for your uproar, since he knew of many Athenians who were working to the same end as himself, and that his advice had the approval of Lysander and the Lacedaemonians.

Again, as in Lys. 22 the speaker uses the language of formal forensic witnessing (“I shall cite you yourselves as witnesses to this”, IJȠ઄IJȦȞ ਫ਼ȝ઼Ȣ Į੝IJȠઃȢ ȝ੺ȡIJȣȡĮȢ ʌĮȡ੼ȟȠȝĮȚ) to introduce the motif. The larger context is Lysias’ attack on the reputation of Theramenes. Eratosthenes has claimed that he was an associate of Theramenes. As (twice) subverter of democracy 14

See on this the discussion of Wolpert 2003.

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and ultimately victim of the Thirty, Theramenes was an ambiguous figure in death as in life. Eratosthenes felt that Theramenes’ death had won him enough goodwill in some quarters to make it worthwhile trying to capitalize on it in his own defence. In order to prevent this Lysias presents the other side of Theramenes, as the man who destroyed democracy. Here he is describing a scene in the Assembly in 404 in which the members of the Assembly yell in protest at the “instruction” (ਥț੼ȜİȣıİȞ, §73) by Theramenes to vote in a body of Thirty to govern the city.15 Theramenes, with Lysander to back him, contemptuously dismisses the hubbub and asserts that the Assembly will do what it must. The judges in the present case are identified with that Assembly audience as witnesses to Theramenes’ conduct and vocal opponents of the proposal. The reality was much more complex. Though Lysias presents all of the judges without exception as victims of Theramenes when he returns to the witness motif in §84,16 some of his audience, as Lysias acknowledges elsewhere in the speech (§§92-94), both stayed in the city and probably fought for the regime in the battle of Munychia. But they are invited here to align themselves with Lysias’ version and accept their identification with the opposition to Theramenes’ proposal and ultimately with the winning side. The further implication is that they should demonstrate their hostility to Theramenes and all he stood for in their vote and so convict Eratosthenes. Lysias is not so much appealing to memory here as creating a convenient false memory, for some at least of the audience. It is a fiction which serves everyone well, both those who could pride themselves on standing up for democracy and those who found themselves on the wrong side, whether from ideology, self-interest or simple pragmatism. Though assimilation regularly involves another judicial panel or the Assembly, there are other options available. At Dem. 21.18 the judges are equated not just with those attending the Assembly meeting at which Demosthenes volunteered to act as choregos for his tribe, but also the audience in the theatre, where Meidias tried to cause trouble for Demosthenes:17 Of the events in the Assembly or before the judges in the theatre, you yourselves are my witnesses, all of you, judges. And surely we should 15

§§72-74. “But, I believe, he would have the nerve for anything, when he has come here now, before judges who are none other than the very people who have suffered at his hands, to offer his defence to the actual witnesses of his criminality: so great is either the contempt in which he holds you or the confidence that he has in others”. 17 More realistically at §§226-227 he accepts that some of them were in the theatre. 16

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consider most reliable those statements on whose truth the hearers can themselves attest for the speaker.

The assimilation is an easy one, because the importance of the Dionysia meant that it would attract a large number of Athenians. Though Demosthenes may be telling the truth in his account of Meidias’ misconduct, at least to the extent that Meidias obstructed and struck him, it looks as though he had very little evidence to back up his narrative. So recruiting the judges as witnesses is a useful way of blustering over the deficit. One of the most sophisticated examples of the judge-witness motif is in Aeschines’ speech Against Timarchus.18 The use at Aeschin. 1.81-84 goes beyond the relatively simple effects we have seen so far to combine simultaneous assimilation and separation. Aeschines in his prosecution of Timarchus narrates an incident in the Assembly when the subject of house demolitions on the Pnyx, under a decree proposed by Timarchus, was under discussion. A terminally solemn member of the Areopagus unwittingly uttered some potential double-entendres relating to Timarchus’ words, which in their innocent sense could simply relate to aspects of topography and construction and related costs but taken less innocently could be interpreted as references to payment for sex and probably specific body parts or sex acts. The Assembly (Aeschines claims) got the joke which the Areopagite missed, and the result was uproar. Aeschines uses the second person repeatedly to describe the response of the members of the Assembly. He then very solemnly distinguishes the judges from the Assembly: “I take this,” he says, “as a witness testimony deposed to you by the Athenian Assembly, which cannot properly be convicted of false witness” (§84). Then he switches back to the second person to return to the events in the Assembly. How can Timarchus be acquitted by judges who even without any indictment recognized his acts both collectively and volubly? This is a very clever passage; it separates the judges from the Assembly to insist on the authority of the Assembly and assimilates them to the same body in order to appeal to the evidence of their own behaviour. The account of the events in the Assembly is part of an extended reply to the demand from Timarchus’ supporters that Aeschines produce witnesses to prove Timarchus’ guilt. Aeschines’ answer is to argue away the possibility of witnesses (because of the nature of the acts) and to deny that witnesses are anyway necessary. The facts are beyond dispute because they are common knowledge. It is in this context that he calls on the Athenians more straightforwardly to be his witnesses (§89): 18

For further discussion of this speech, see Kapparis in this volume.

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Chapter 11 Now if this trial were taking place in another city that had been called to adjudicate, I should have expected you to be my witnesses, as the ones who know best that I am telling the truth. But since the trial is in Athens and you are at the same time judges and witnesses to my account, my task is to remind you and yours not to doubt me.

A similar but bolder variation is played out at §§129-130, where famously he appeals to rumour to support his claims about Timarchus. Like all the other instances, we are looking at a variation on the “everyone knows” motif. But he places the alleged common knowledge on a much higher level by personifying rumour and quoting Hesiod to the effect that Rumour, Pheme, is a goddess. He goes on to urge them (§130): So recollect, gentlemen, the report you have encountered concerning Timarchus. Isn’t it the case that as soon as the name is uttered you ask the question: “Which Timarchus? The whore?” So then, if I were offering witnesses, you would believe me. Yet if I offer the god as witness, will you not believe, when in all piety one cannot charge her with false testimony?

The gods are frequently in Greece called upon as witnesses. But not usually with this technical suggestion of witness in court. In attributing divine authority to the rumours known to the judges and making this authority his witness, he encourages his audience to view their suspicions as certain knowledge. The witness motif we have been discussing forms part of a larger rhetorical strategy which responds to the lack of hard evidence at Aeschines’ disposal. By definition the acts he alleges against Timarchus even if true cannot have been witnessed. Aeschines’ response is to take what his audience (or some of them) have seen and use it as a bridge to what is unseen and give surmise, suspicion and innuendo the appearance of evidence. This involves inviting them to see with the mind’s eye. It involves guiding them on how to interpret what they see in court, as when he asks them to look at Demosthenes’ clothing and imagine how it feels, at 1.130, or at 1.189 where he invites them to see the signs of age in Timarchus as the tell-tale marks of debauchery. And it involves treating shared (or allegedly shared) knowledge as possessing the authority of eyewitness testimony. This also involves using seen public behaviour as the hallmark of character and an indicator of private conduct. The witness motif is used at 1.25 in relation to the statue of Solon on Salamis. The audience are invited to bear witness (on the tenuous supposition that they have all or almost all crossed to Salamis) to the modest and dignified pose of the statue. This is then contrasted with a gross and indecent performance in the Assembly by

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Timarchus. It is difficult to believe that Timarchus’ conduct in the Assembly was as gross as Aeschines claims.19 But it may have been flamboyant and Aeschines’ contrast between two political styles allegedly both seen by the audience is intended to distort the recollection of the Assembly scene and judge it severely. The examples we have seen so far all deal with the judges as a group. But the motif can also be adjusted to apply to a subset of the judicial panel. The potential this offers can be seen at the opening of Lysias 10. Here the speaker does not simply assimilate the judges in front of him to another court but exploits the reality of the allocation process. In the fourth century judges were allocated to individual courts on a day-to-day basis.20 The case is kakegoria and the allegation is that at a previous trial the opponent accused our speaker of homicide, one of the allegations forbidden under Athenian law. Our speaker opens his speech by asserting that he has no shortage of witnesses, since he recognizes many of those facing him as being among the judges in the trial in question. The effect is much more precise than simply identifying this jury with another. Just how realistic his claim was in context depends on a question we cannot answer, which is how big the courtroom was and how close the bema was to the judges. But what matters is not the truth but the rhetorical force of the ploy. Like the basic logographer’s formula it tries to browbeat the judges surreptitiously by encouraging each judge who does not know the background to see himself as the lone ignoramus. But unlike the “everyone knows” topos it offers not just a sweeping attribution of knowledge but a very precise link to the events in question and so provides a potentially powerful validation of the speaker’s factual claims. The formulation in Lys. 10 simply notes that some of the current jury know the facts and invites all others to treat this alleged knowledge as a validation. But the topos can go further. Instead of simply claiming unspecified judges as his witnesses the speaker can invite those judges who know the facts to perform the role of witnesses by sharing their knowledge with their neighbours in court.21 The most persistent example of this is in Andocides 1, where it occurs no fewer than three times. The first instance at §37 is at first sight a puzzle. He refers to evidence given in the Boule about the mutilation of the Herms. He then states that his audience are his 19

Cf. Fisher 2001, 153. For changes in the process from the late fifth to the fourth century, see MacDowell 1978, 35-40. 21 The practice of distinguishing members of the judicial panel by age and knowledge was probably already a topos by the last quarter of the fifth century; cf. Antiphon 5.71. 20

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witnesses (martyres) because it took place in their presence (en hymin). There is no enioi, “some of you”, and no “those who were present”. He clearly does mean all of the judges. He asks them to remind each other and confirm his statements. But they cannot all have been in the Boule and nobody could ever have imagined that they were. The evidence must however have been reported or repeated in the Assembly, which makes the assimilation easier. The motif is repeated at §46, where it includes events in the Boule but also larger mobilization in the city, and at §69, where the Assembly is drawn explicitly into the narrative. Here he is more explicit that not all of his audience can have been present. He asks those who were there (§46)/those who saw (§69) to remember and inform the others. The triple repetition of the motif in this speech is highly unusual. There were different versions of the events of 415 in circulation and Andocides needs to establish his version in order to dissociate himself unambiguously from the mutilation of the Herms. Despite his request for people to recollect events, it is very unlikely that many members of the audience will have a precise recollection of events which were now 15 years in the past. Hence the request to his audience to remind themselves and each other. It is noteworthy that his appeals come at points of detailed and vivid narrative. His appeal to the judges to remember is really an attempt to induce them to treat his narrative as their memory, an attempt (as in Lysias 12, discussed above) to create memory. Perhaps more importantly, it plays on the age differential among the judges. Anyone who was new to the panels in 400 (anyone in their early thirties) when the trial took place would have been too young to participate in the events in 415 which are narrated. This cohort is invited to believe that the older members of the panel are witnesses for the account. I have been focusing on the use of words (martys and cognates) which explicitly label the judges as witnesses. But the concept can be present without the use of the explicit terminology of witnessing. This is the case for instance in [Dem.] 50.3. The speaker (probably Apollodorus) is about to launch into an account of his exemplary service as a trierarch as part of his accusation against his delinquent successor. He pauses to invite those who served on the campaign to recollect the facts and tell those sitting near them in court: “I ask all of you who served in the army and were present (ʌĮȡોIJİ) there to remember yourselves and to tell those sitting near you about my zeal and the troubles and difficulties which befell the city at that critical time”. The key word for my purposes is ʌĮȡોIJİ. As noted above, it was permissible to decline to bear witness to events at which one had not been present. And the language of physical presence understandably plays a

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major role in witness depositions.22 Without the hammer blow of martyrein and cognates, ʌĮȡોIJİ casts the judges in the role of eyewitnesses. The appeal is revealing in other respects.23 Firstly it is a useful reminder that not all rhetorical ploys are empty tricks. As always, the suggestion that part of the audience is already convinced is an attempt to convince at least some of the others by assimilation. But there was a real possibility that some of those in court would have served on the campaign. And some, perhaps many, may have remembered him. He had a high profile, as a politician, an inveterate litigant and a man who spent lavishly on liturgies.24 His claim of lavish expenditure on his ship (§§7-8) is entirely plausible; and extravagant behaviour like this would attract attention. Secondly, it also demonstrates the flexibility of recurrent motifs. An appeal to fellow-soldiers is also an appeal to group solidarity. So beyond the question of persuading the judges of the facts we also a subtle appeal for eunoia, here useful because any account of his lavish expenditure is bound to seem vainglorious to some of his listeners. The device we have been examining is at home in public speeches; unlike the “everyone knows” topos, it is less common in private cases. Probably the reason lies in the nature of the issues and persons in each kind of case. Where the formulation “everyone knows” or “you all know” allows room for rumour, hearsay and deduction as well as personal knowledge and for broad generalizations25 as well as precise references to specific facts and circumstances,26 the witness motif carries implications of direct personal acquaintance with the facts and events. And for many, perhaps most, private cases neither the characters nor the events will have the salience to allow the motif to be deployed credibly. One rare occurrence is in Isae. 3.40: 27 Now Nicodemus’ dishonesty is known to the majority of you even without a word from me. So I have no lack of witnesses to every statement about him.

22 The key phrase is ȝĮȡIJȣȡİ૙/ȝĮȡIJȣȡȠȣ૨ıȚ ʌĮȡİ૙ȞĮȚ, as e.g. Dem. 35.14, 43.8, 45.8, 24, 59.32. The evidence of documents surviving in speeches is always suspect, given the inevitable doubts about authenticity. But in the case of this wording the formulaic use of the terminology is confirmed by speaker statements, as Dem. 40.59, 46.5; Isae. 9.10. 23 Cf. And. 1.46; Ant. 3.1.7. 24 Cf. Dem. 36.39. 25 E.g. Isae. 1.41; Isoc. 21.12; Dem. 34.30, 39.29, 40.9. 26 E.g. Isae. 6.1; Dem. 39.39, 44.4. 27 Lys. 10 (discussed above), also in a private suit, is different, since it relates to a specific instance in a public context.

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It may be that the target was sufficiently notorious to give credibility to the statement that his behaviour was well known. But it is striking that the device is attached to vague allegations of misconduct for purposes of diabole rather than to specific events, as usually happens in the public speeches. So it may be just a bit of bluster. It is also worth noting that the appeal to the audience specifically as witnesses tends to be confined to forensic speeches. There was no insuperable barrier to its use in the Assembly. And in fact Assembly speeches at least in Demosthenes make frequent appeal to audience knowledge. But the terminology is less at home in Assembly speeches. MacDowell pointed out long ago that martys in Greek like “witness” in English has two uses.28 It can refer to someone who appears in court to give formal evidence; but it can also simply mean someone who has direct personal knowledge of events. There is an obvious value of blurring that distinction in court, where formal witnessing plays a crucial role. There is less obvious value in the Assembly.29 The instances I have been examining constitute the most frequent but not the only play with the language of witnessing available to speakers in court. There are other options. We find Aeschines engaging in interesting play with the terminology at 3.31, where the laws and decrees are personified as his witnesses. The speaker at Demosthenes 55.7 uses the language of witnessing of his own behaviour, elevating what technically Aristotle would call a tekmerion or a semeion to the authority of a human witness. The effect is to claim a little more authority for a simple argument from analogy. None of the passages I have examined is critical for the argument in the speech in question. On occasion (as in Aeschines 1), if used strategically, the dicast-witness motif can have a cumulative impact, in covering up the paucity of real evidence. But for the most part the motif just offers an effective way of adding dramatic vividness, engaging the audience more personally, or offering a persuasive reconstruction of a moment in time or a set of events. The examples discussed above are merely details. But they do indicate how astute pleaders can adjust commonplace topoi and use them to effect. They also show the value of close reading for any appreciation of the way in which a speech operates, not as a single mass or even as a sequence of themes and arguments but as a linear and developing attempt to persuade, which often operates (sometimes imperceptibly) at the level of carefully deployed detail. 28

MacDowell 1963, 105. For a rare instance, see Dem. 9.41, in the context of an attack on (what he presents as) the current degenerate political culture. 29

CHAPTER 12 WITNESS TESTIMONY IN ASSAULT CASES: QUESTIONS OF FACT AND CONSTRUCTION OF ETHOS1 IFIGENEIA GIANNADAKI

1. Introduction It is a topos in modern studies on witness testimony in Athenian courts to emphasize a significant difficulty when approaching the subject—to make a link between the identity of a witness and the content of the particular statement he offers. Terms such as “MARTYS/MARTYRIA” (or “MARTYRES/MARTYRIAI”), mark the interruption of the speech for the inclusion of witness statement(s), which are not preserved in most cases.2 Despite this difficulty, modern scholarly works have been refining the discussion of the function of witnesses, legal and rhetorical. But this is not to suggest a scholarly consensus on the main function of witnesses and their testimony in Athenian courts. Among the most influential approaches is the one which considers the witnesses partisans of the litigant, emphasizing their identity and their relationship to the litigant,3 in contrast with the 1

I am grateful to Kostantinos Kapparis and Lene Rubinstein for sharing insightful feedback on earlier draft and to the editors, Chris Carey, Mike Edwards, and Brenda Griffith-Williams, for their invaluable and thoughtful suggestions. 2 Even when statements are preserved, their authenticity is debatable: see Todd 1993, 44-45. 3 See Humphreys 1985, 313-363; similarly, Todd 1990, 27, 30-31. Cohen 1995, 107111 argues that witnesses appear to testify to whatever needs to be told to support the litigant for whom they appear and they were expected to lie. Contrast Mirhady’s 2002, 261 n. 27 objections; he gives priority to the importance of the things being testified, rather than the identity of witnesses, and claims that they were expected to “tell the truth”. Cf. Thür 2005, 165-166.

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view—more convincing in my opinion—that draws attention to their primary role as confirming certain facts; they are always invited to testify to things they knew or had experienced rather than to show their support for a litigant.4 The focus of this study is neither the procedural nor the legal framework within which the witnesses functioned in the Athenian legal system.5 My interest is to understand the rhetorical role of witness testimony in the architecture of two forensic speeches dealing with offences of assault, namely Dem. 54 and 21, building on influential scholarly approaches which acknowledge the artful use of witness testimony6 and the strategic use of witness statements influenced by procedural variations and the nature of the facts that witnesses were invited to confirm—a compelling case made by Rubinstein.7 Thus this study seeks to shed light on the artful and strategic use of witness testimony as employed in types of assault cases (private and public), in ways which have not been explored.8 According to a passage in Aristotle’s Rhetoric,9 “martyriai (witness statements) partly concern ourselves, partly our adversary, some relating to the case and others to ethos (moral character)”. It is precisely the link between the employment of witness statements and the ethos of the litigant, as Aristotle suggests, and the witnesses’ ethos (which Aristotle does not address), that will be explored here, leading to conclusions about deployment and drafting of witness statements and the nature of the “facts” they purport to confirm.10 This analysis will suggest that the “facts” which witnesses are invited to confirm may not always be crucial for the case argued from a legal perspective, but witness testimony may be effective from a rhetorical viewpoint, collected, drafted and orchestrated within the wider rhetorical strategy of each speech, in synergy with arguments from ethos (as an artful proof), along the lines suggested by Aristotle. This analysis reveals the dynamics of witness testimony and its deployment to confirm certain “facts” in order to lend credibility to the litigant’s construction of the character and conduct of his opponent, or that of his witnesses in order to undermine the opponent’s version of the “facts”. Therefore, study of witness testimony in 4

Cf. Carey 1994b, 183-184. More recently, Gagarin 2021. On this, see Todd 1993, 96-97; Phillips 2013, 38-39. 6 E.g. Carey 1994a, 98-101. 7 Rubinstein 2005. 8 Cf. Gagarin 2014; 2019 discussing witness testimony from different viewpoints. I focus on assault cases heard by popular courts, excluding e.g. intentional wounding and homicide cases, where procedural differences (legal process, different courts) and swearing of oaths by the witnesses to the innocence/guilt of the litigants may have dictated the employment/choice of witnesses. 9 Rh. 1.15.18, 1376a23-32. 10 Cf. Rh. 1.15.16, 1376a12-14. 5

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specific clusters of comparable cases (regarding types of assault, here) may shed more light on its nuanced deployment and its rhetorical role, as dictated by the overall rhetorical strategy of the speaker and the particular circumstances in each case, i.e. the absence of eyewitnesses to testify to the alleged offence.

2. Witness testimony in Against Conon (Dem. 54) The speech against Conon was written for Ariston, a young man who was allegedly beaten and verbally abused by Conon and his associates, to be delivered in a private suit for battery (dike aikeias). Ariston from the outset stresses the seriousness of the assault, which he describes using terminology of a more severe type of offence, hybris (wanton/humiliating assault).11 Although Conon’s assault took place in the Agora, Ariston’s narrative offers a vivid background of previous violent incidents between Ariston and Conon’s sons while on garrison duty at Panactum, two years earlier. These incidents are confirmed by witnesses; we cannot know how many, but apparently more than one confirms Ariston’s version of events. The witness statements are not preserved, but the surrounding narrative may shed light on the nature of the events that the witnesses are most likely to have confirmed. Ariston’s framing of the events invites negative moral judgments about Conon’s sons, whose abusive behaviour was allegedly surpassed by Conon himself.12 The situation was reported to the general and the taxiarchs, who are also said to have witnessed other violent actions involving Ariston and Conon’s sons.13 If we trust the surrounding narrative—at least in its broad outline—there is no reason to doubt the continuous hostile relations between the two sides or that the generals and taxiarchs had become aware of these. However, it is not clear to the modern reader whether these officials testified for Ariston: one might reasonably expect them to be singled out (cf. the doctor’s statement later), but the fact that the witnesses are unidentified here need not suggest they did not testify.14 Although not directly relevant to the present offence, these

11

Cf. Isoc. 20, where aikeia is also exaggerated and is presented as hybris. See Spatharas 2009, 55-56. The legal notion and its defining elements have been a subject of debate: see esp. MacDowell 1990, 19-22; 1976, 14-31; pace Fisher 1995, 45-47; 1990, 123-138. A more balanced view is offered by Cairns 1996, 1-32. 12 54.6. 13 54.4-5. 14 Cf. Mirhady 2002, 262 drawing attention to the great degree of witnesses’ anonymity as against their strategic identification. According to Rubinstein 2005,

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incidents at Panactum, supported by witness testimony, lay the foundations for the depiction of Conon as a habitual hybristes, providing a backdrop to Conon’s and his associates’ violent behaviour, since Conon is expected to claim that this was a trifling matter between young men’s rival groups.15 Other witness testimony produced (§§9-12) is related to Conon’s assault in the Agora. But what are the events to which these witnesses were likely to testify? Ariston had to prove that Conon started the fight, striking the first blow, as is the legal requirement in dikai aikeias.16 But witnesses are unlikely to provide decisive evidence regarding the assault. Instead, Ariston’s witnesses—the passers-by, two named Athenians and the doctor(s)17—apparently testify to “facts” about his subsequent medical condition18 and are not eyewitnesses to the offence.19 Ariston stresses the level of violence and the abusive behaviour of Conon and his associates, acting as bullies. Ariston focuses on his sufferings and then turns to the aftermath of the assault, evading any reference to the circumstances—the facts—which led to this assault. Certain unidentified witnesses (plural form) are invited here, presumably including those who carried him home and conceivably those who took him to the public bath or witnessed his condition while he was carried there. Some of these passers-by are identified towards the end of the speech:20 Lysistratus, Paseas and Diodoros. Their statement is paraphrased by Ariston and this paraphrase reveals a distortion: they are presented as having explicitly testified that they saw Ariston being beaten by Conon, but they arrived on the spot after the Appendix, 64% of witness statements in private speeches and 42.5% in public speeches are unidentified. 15 Cf. Bonner 1905, 17. 16 See Dem. 47.40; cf. 47.38-39; Isoc. 20.1; Phillips 2013, 96. 17 The speaker produces doctor’s statements in §§10 and 12. The doctor discussed in §10 is likely the doctor testifying at §12, too, since there is no indication that a different doctor testifies. However, this cannot be ruled out in the light of the plural “doctors” Ariston repeatedly uses elsewhere (§§1, 10, 36). Thus, either the same doctor, or two different doctors testify to events relating to Ariston’s critical condition. If the latter is the case, the plural forms would be easily explained. Alternatively, Ariston a) is exaggerating the number of the doctors to stress the seriousness of his condition, or b) several doctors attended him, while only one of them actually testified (Carey-Reid 1985, 84). The issue must remain open. 18 For a different view, see Lentakis in this volume. 19 §9 with Carey-Reid 1985, 84. It is unclear if Phanostratus witnessed the assault and if he testified (cf. Carey-Reid 1985, 71 n. 5), but the detail that Phanostratus had been attacked first and held down may be intended to imply (conveniently for Ariston) that Phanostratus was not in a position to witness the assault. 20 §32.

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incident. At best, the witnesses deployed here could testify to Ariston’s condition after the incident, not that Conon struck the first blow against Ariston.21 A number of other witness statements are produced next (§10), to the effect that these witnesses encountered Ariston by chance while he was being carried home. The witnesses would presumably confirm actions taken by various individuals who aided the injured Ariston, and among those who testified must have been Euxitheus,22 a relative of Ariston, and Meidias. These were passers-by and individuals who offered assistance and hospitality to Ariston (after he had been taken from the public bath), so they had first-hand knowledge of his condition. It is most likely that their testimony would relate to facts from their own experience, such as witnessing Ariston being carried home, accompanying him to the public bath, being present when the doctor attended him, offering hospitality. But all these events followed the assault. These witness statements are framed as evidence of hybris against Ariston, and are interconnected with Ariston’s moral judgments about Conon to undermine his ethos and credibility. Also, the doctor’s testimony (§10) is employed to emphasize the seriousness of Ariston’s subsequent condition—described explicitly as the immediate result of Conon’s and his associates’ blows (§12). It is unclear to what extent the doctor would confirm that the illness was the immediate result of the beating, or that it had arisen in combination with some pre-existing condition. Additionally, it is left unclear in this narrative, and presumably in the doctor’s statement, how close to death Ariston had come.23 Ariston may have selected the most convenient details of the doctor’s assessment to frame the doctor’s testimony. The use of medical terminology in the doctor’s statement, as implied by Ariston’s outline, would certainly make an impression on the dikastai, since doctors make only rare appearances in the surviving oratory.24 His statement is rhetorically effective as it would 21 Cf. §28: Ariston claims that he declared to those who arrived that “Conon was the first to strike him” but this phrasing does not point to the defining terminology of aikeia—he is merely presented as the ringleader. 22 He is present in court (IJȠȣIJȠȞȓ, §10). 23 Cf. Carey-Reid 1985, 85. 24 For doctor witnesses, see Humphreys 1985, 327. In Athens, doctors were not “expert” witnesses, in the modern sense, i.e. offering expert opinion under specific rules (evidence admissibility, appointment, reporting procedures). Doctors’ testimony was “expert” in the sense that a professional provided statements on the basis of his training/specialist knowledge to confirm facts (Dem. 54; cf. 40.32-33). Cf. Kapparis 2018a, 300 noting that doctors’ “expert” testimony may have determined the outcome of a trial. In contrast, Plastow 2019, 592 n. 39 (with

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presumably exemplify the serious injuries resulting from what Ariston presents as Conon’s hybris.25 Despite the detailed discussion of his health condition, Ariston never displays or describes as still visible any signs of physical assault on his body. This may well suggest complete recovery. Bruising, even temporary impairment of his mobility, would leave no visible signs on his body, since a reasonable interval of time between the assault and the time of the trial must be assumed.26 Besides the various— identified and unidentified—witnesses in this narrative (§§9-12), emphasis is placed on the number of witnesses.27 Ariston presents the testimony of Euxitheus, Meidias, the doctor, the passers-by, and those who visited him while he was ill. All this witness evidence focusing on the aftermath of the assault would provide a factual basis for the severity of the offence, which is not discussed as aikeia but as an act of hybris.28 Furthermore, Ariston introduces witness testimony concerning the arbitration (§29), the pre-trial stage—testimony which is framed as revealing Conon’s ethos and conduct (§§26ff.). Conon issued a “challenge” (proklesis) offering his slaves for torture, but Ariston admits that he rejected it. The exact content of the witness statement cannot be known, but its deployment here indicates that at least certain aspects of Ariston’s story are corroborated. Ariston focuses on Conon’s delay in issuing the challenge and interprets this as a manoeuvre to delay the decision of the arbitrator. He also alleges that Conon refused to read out his witness statements and hand over copies, and drafted irrelevant witness statements. Ariston invites the unidentified witness to testify to the veracity of his version of events and to the effect that this challenge was employed as a delaying tactic. The delay in issuing the challenge must have been the essence of this testimony. However, Ariston’s evasions suggest that certain events cannot have been included. Ariston evades an answer to his own refusal to accept the challenge, which accordingly cannot be part of the witness statement. references to earlier scholarship) considers doctors “non-expert” witnesses; Harrison 1971, 134. 25 §§11, 13. 26 Swelling on his face, lip cut, inability to get up and speak (§§8-9); cf. §§11-12 possible bone fractures, pneumonic infection. The possibility of visible marks is not addressed in O’Connell’s 2017, 47 discussion. 27 §10: ʌȠȜȜȠ੿ ıȣȞȓıĮıȚȞ …; use of plural in §§9, 10, 12. Since the water-clock was stopped for witnesses in private trials, there is no disadvantage to adding witnesses; yet, the litigant ought to consider potential rhetorical advantage, i.e. persuading the dikastai of the relevance of their witnesses and avoiding straining their patience. 28 The repetition of hybris in §§9, 10, 11, 13. This moral vocabulary frames the witness statements manifesting Conon’s ethos and conduct, which are sharply contrasted with Ariston’s moderation (§24).

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Naturally, he never states the outcome of the arbitration—presumably successful for Conon29—and this element is unlikely to be part of the witness statement. Similarly, Conon’s drafting of irrelevant witness statements and his alleged refusal to share copies of his witness statements may well have been left out, since Ariston himself does not elaborate on these events. Thus, the witness would probably confirm that Conon’s challenge was issued very late during the arbitration, perhaps as a “dry” fact, not framed in the way that Ariston frames it. Omission and selection of presumably uncontested facts, such as the timing of the issue of the challenge, must have been at play in drafting this witness statement. But the witness testimony is again framed as revealing crucial aspects of Conon’s insolence and injustice. This moral interpretation of the events here interconnected with witness testimony is designed to undermine Conon’s character and credibility.30 Next, Ariston leads his artful use of witness testimony in a different direction, aiming to attack the ethos and credibility of Conon’s witnesses (§§31-36), too. He pursues a sustained strategy of discrediting the opponent’s witnesses, and indirectly the opponent,31 on the grounds that they are testifying as close friends and associates of Conon, so they are not trustworthy.32 This is indeed a strategy advised in the Rhetoric to Alexander33 as a means of responding to witness statements in order to discredit them, with reference to a close relationship between the opponent and his witness. Although Anaximenes’ strategy appears to relate to the defendant’s attempt to discredit the prosecutor’s witnesses, this strategy is used here by the prosecutor to undermine the reliability of the defendant’s witnesses: Diotimus, Archebiades, and Chaeretimus are presented as Conon’s drinking companions with a criminal character, who have formed a network of mutual support in litigation.34 Witness evidence (§36) was produced to the effect that Conon’s witnesses had some sort of “criminal record”. Two offences are mentioned, breaking into people’s houses and violent behaviour against those who crossed their path. The former is a claim which cannot be substantiated, since the offence would require 29

§33: the text implies that Conon was successful in the arbitration after securing crucial witness testimony. 30 On the rhetorical exploitation of pre-trial proceedings, cf. Gagarin 2018, 172-174. 31 A strategy not pursued to the same extent in other extant speeches: cf. 21.139142; Todd 1990, 24; Mirhady 2002, 269. 32 §33. Rubinstein 2005, 102 finds one witness testimony by a witness identified as the speaker’s personal friend/his inner circle, in public suits, and 43 instances in private suits. 33 Anaxim. Rh. Al. 15.4-5; cf. Mirhady 1991b, 10-15. 34 §§33-35.

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summary arrest (apagoge) to the Eleven and death, if they confessed on the spot or were found guilty by a court.35 Similarly, regarding the second allegation, beating anyone who crossed their path (§37), witness testimony may have included allegations against them or allusions to or threats of potential lawsuits, rather than actual prosecutions. Part of Ariston’s strategy to discredit Conon’s witnesses is the quotation of the witnesses’ statement (§31), coming after the discussion of Conon’s manoeuvring during the arbitration. Ariston challenges this statement as false. The witness statement illustrates the artistry of drafting the depositions ambiguously to support one’s own case: the crucial information ȝ੽ ʌĮIJȐȟĮȚ ȀȩȞȦȞĮ ਝȡȓıIJȦȞĮ can be taken as “that Conon did not strike Ariston”, as Conon would have the dikastai believe, or that “Ariston did not strike Conon”.36 The ambiguity in this accusative and infinitive construction also suggests a conscious effort to phrase it in a way which would allow Conon to provide a “factual” basis for his allegation, and simultaneously this ambiguity may have served him well in securing this statement by witnesses unwilling to lie: for them the statement would simply mean “Ariston did not strike Conon”.37 Therefore, Ariston’s inability to present eyewitnesses in support of his claim that Conon assaulted him is compensated by the artful use of witness testimony, not necessarily to confirm facts directly related to the assault, but to confirm selected facts before and after the incident which could be represented as indicative of Conon’s ethos and the alleged unreliability of his witnesses. The witness statements deployed strategically were presumably phrased in wording acceptable to Ariston’s witnesses (cf. the witness statement secured by Conon), so that they would not refuse to testify, e.g. by denying knowledge of facts (exomosia),38 or run the risk of being accused of false testimony.39 The drafting of a statement would clearly involve collaboration between the litigant and the potential witness in order for the former to secure the compliance of the witness and for the witness to be satisfied with the content of the statement.

35

Carey-Reid 1985, 99. Carey 1994a, 99-100 on securing testimony from reluctant witnesses; cf. Dem. 45.26. 37 For careful composition of witness statements cf. Dem. 45.19 (presumably genuine: Scafuro 2011, 250-251): brevity, dryness, infinitive construction; 45.43, 46.5. 38 See Carey 1994a, 100-101. 39 On dike pseudomartyrion: MacDowell 1978, 173, 244; Todd 1993, 97, 145-146; Phillips 2013, 43. 36

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3. Witness testimony in Against Meidias (Dem. 21) Having examined key aspects of the witness testimony employed in Dem. 54 (a private suit) we shall now turn to the speech Against Meidias, a public speech which offers comparable examples of the artful use of witness testimony connected with the ethos of the opponent, namely, his portrayal as a habitual man of violence. The speech is written for a probole40 and Meidias is accused of an “offence concerning the festival”, which consisted in his punching Demosthenes in the theatre of Dionysus, while Demosthenes was serving as chorus producer.41 Unlike Against Conon, the speech Against Meidias contains the texts of witness statements; unfortunately, they are spurious.42 Only one of the seven depositions produced relates in some way to the assault, while the rest confirm certain “facts” which are discussed to support Demosthenes’ attack on Meidias’ ethos and lack of democratic credentials. Whereas Ariston had to prove that he was the victim of unprovoked assault (in the course of the dike aikeias), Demosthenes’ task is to prove that his assault falls within the scope of probole for an offence associated with the festival. Yet, the moment of the assault remains

40

§§1, 11-12 and esp. 25-26; see MacDowell 1990, 13-16. On probole, see also MacDowell 1978, 194-197; 2009, 246-248; Todd 1993, 121; Phillips 2013, 32, 415421. For a different view on the procedure employed, see Harris 1989; 2008, 79. On the question of delivery see MacDowell 1990, 23-28. 41 Demosthenes refers to ʌȜȘȖȐȢ, blows (plural: §§6, 12; cf. 69: ȝȘį੻ IJȠ૨ ıȫȝĮIJȠȢ IJઅ Ȥİ૙ȡİ IJİȜİȣIJ૵Ȟ ਕʌȠıȤȑıșĮȚ ȝȠȣ). MacDowell 1990, 32 n. 2 merely acknowledges the plural. The plural may be a rhetorical exaggeration of a single blow, but it is equally possible that Demosthenes received more than one blow, which may be supported by the imperfect ਩IJȣʌIJİȞ in §219. Also, Aeschines (3.52) refers to IJȠઃȢ țȠȞįȪȜȠȣȢ and (3.212) țĮ੿ țĮIJĮțİțȠȞįȪȜȚıIJĮȚ ... IJ૵Ȟ țȠȞį઄ȜȦȞ: he certainly exaggerates the incident claiming also that marks of these punches were still visible in the 330s. But one cannot dismiss all sources which give the plural form and refer to blows and Aeschines’ references to punching as mere fabrication. Allowing for rhetorical exaggeration augmented in time, I am inclined to trust the sources which are consistent: at the very least, Demosthenes received a blow, and possibly more than one blow, which are referred to as “punches” in Aeschines and are alluded to in Dem. 21.72; cf. the mediaeval title to the speech (“punch,” singular but mediaeval titles have no independent validity). The subsequent Assembly meeting and its outcome, as well as the notoriety of the incident, make it difficult to believe that there was no blow at all against Demosthenes (cf. §§2: įોȝȠȢ ਚʌĮȢ … ıȣȞ૊įİȚ; 6, 194: ੪Ȣ ੅ıĮıȚȞ …, 206, 214, 217: ਵțȠȣıİȞ ੒ įોȝȠȢ). For an alternative reconstruction of events, see Gagarin 2017. 42 Witness testimony is produced in §§21, 82, 93, 107, 121, 168, 174. For the question of its authenticity, see MacDowell 1990, 46-47, 333, 343, 386.

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spectacularly obscure, or vaguely alluded to, in the speech,43 and there is no witness testimony to the assault on Demosthenes presented in the speech. Instead, Demosthenes claims44 that all the dikastai are witnesses of the events (martyres) in the theatre and the Assembly meeting, and he also stresses that the assault was made in the presence of many citizens and foreigners attending the Dionysia. Although it is possible that some (or conceivably many) members of the court panel attended the Dionysia on that occasion, it is doubtful that all the dikastai, or many citizens and foreigners, witnessed the actual moment of the assault, in a crowded and presumably noisy theatre, shortly before the dramatic performances.45 It is possible that those spectators in close proximity to Demosthenes at that moment and with a clear view of the incident scene, and with their eyes fixed on the “protagonists” of the incident, would be able to witness it. Thus, Demosthenes’ remarks should be treated with caution and viewed as a rhetorical device rather than an accurately presented fact.46 The evasion of discussion of the assault and the absence of witness testimony on this may reveal Demosthenes’ effort to conceal important facts, for instance, potential provocation of Meidias,47 and this also serves well his rhetorical effort to elevate the blow(s) to a more serious offence, hybris.48 Instead, Demosthenes produces the goldsmith’s testimony to support his allegations about the damage done to the chorus’s clothing and the golden 43 MacDowell 1990, 32, 290 on §72. The assault is possibly alluded to in the “comparative” incidents for offences concerning the festival, too: §§179, 180-181 and in Demosthenes’ anticipation of Meidias’ argument at §§36, 39: it is impossible to know if Meidias would make this argument or not, but these events discussed in detail, even if subjectively presented, are more likely to be real than fabricated. 44 §§18, 74, 217. Cf. claims that some of the dikastai were present in the Assembly (§§194, 226-227) when the probole was introduced. But even if so, Demosthenes still had to prove that he was assaulted in the way he claims he was and that this assault falls within the scope of probole. Harris 1989, 128 notes that Meidias’ guilt needs no proof, in this incident, as it has been already established by the probole vote in the Assembly. However, the term katacheirotonia does not suggest a final verdict on the matter (MacDowell 1990, 13; Rhodes 1981, 659-660). The positive outcome in the Assembly meeting for Demosthenes cannot automatically suggest that the prosecutor need not prove the guilt of the defendant in the subsequent trial. 45 Cf. Gagarin’s 2017, 320-321 similar doubts. 46 MacDowell 1990, 243. Yet, scholars have assumed that the incident was seen by all spectators, or that it was widely witnessed: e.g. Wilson 1991, 164; MacDowell 1990, 8; 2009, 247; Harris 2008, 77; 2018, 376. 47 Cf. Carey-Reid 1985, 73 on Dem. 54 for potential provocation of Ctesias leading to Ariston’s assault. 48 On the rhetoric of hybris in Dem. 21, see Wilson 1991; cf. also Gagarin 2017, 321-323.

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crowns designed for the festival, events that occurred prior to the assault.49 The preceding narrative relates the continual insulting acts against Demosthenes after he had undertaken the liturgy, bribery of the chorus trainer, and obstruction of the chorus from entering the theatre. But for all these allegations, Demosthenes offers only the goldsmith’s testimony, strategically placed after his long list of Meidias’ previous inappropriate or illegal actions against him:50 it is not clear what details about Meidias’ alleged breaking into the goldsmith’s house were corroborated by the witness testimony, but its place in the narrative gives the impression that all Demosthenes’ claims are substantiated. Ultimately, Meidias emerges as having behaved like a habitual man of violence throughout the preparation of Demosthenes’ chorus.51 His portrayal is enhanced through a selection of previous legal actions involving himself and Demosthenes, followed by witness testimony: an offer for exchange of properties over the performance of a trierarchy, and Meidias’ insulting language against Demosthenes’ female relatives, after breaking down the doors of their house, which resulted in a dike kakegorias against Meidias.52 Demosthenes discusses these previous incidents as examples of hybris, but in legal terms, these disputes were not prosecuted as such.53 However, his selections of past events followed by witness testimony are presented as revealing of Meidias’ ethos and conduct, consistently described with hybris terminology. The most ingenious and dramatic example, which augments Meidias’ portrayal as hybristes, is the episode of Straton and his disfranchisement, for which witness statements are produced along with the disfranchised man, a “silent witness”. The episode is framed as another example of Meidias’ hybris and arrogance, and witness testimony is introduced to the effect that Demosthenes is “telling the truth” without a hint at the events corroborated in particular.54 The plural number (IJȠઃȢ ȝ੺ȡIJȣȡĮȢ) also suggests that more than one witness was available to support the witness statement.55 Meidias allegedly never appeared at the arbitration hearing, but 49 Cf. §25. Central in Demosthenes’ legal case seems to be the assault rather than the obstruction of the chorus. 50 §§12-19. 51 §19 (hybris and aselgeia terminology). 52 §§80-82. For this episode, see MacDowell 1990, 294-299. These previous hostilities also provide Meidias with a motive for his attack on Demosthenes. 53 Cf. Ariston’s allegations about the conduct of Conon’s sons in the camp, for which they were not prosecuted by Ariston either (above pp. 147-148). 54 §93. 55 The episode is narrated in §§83-93; for the framing of the events as revealing of Meidias’ ethos, see §§83, 86, 88, 92.

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attempted to delay the arbitrator’s decision and persuade Demosthenes to drop the charge altogether.56 After Straton decided against Meidias by default, Meidias plotted against him and instigated his disfranchisement. Demosthenes is evasive about the legal grounds on which Straton was convicted, which must have been solid,57 and the witness testimony is unlikely to have made any reference to this aspect, either. It may have included selected facts pertaining to Meidias’ delaying tactics during the arbitration, or the timing of his attack on Straton. Therefore, one can reasonably expect the witness testimony to have been selective and presumably presenting dryly certain facts about Meidias’ past actions, while the surrounding narrative frames these actions as manifestations of hybris.58 Another past event supported by witness testimony is Meidias’ false accusation that Demosthenes murdered Nicodemus. Meidias allegedly spread rumours against Demosthenes in the Agora, attempting to implicate him and have him charged with the murder, which was actually committed by Aristarchus. The witnesses, more than one, are invited to confirm certain actions of Meidias and his attempt to incriminate Demosthenes.59 The witness testimony could perhaps refer to Meidias’ malicious spreading of rumours against Demosthenes, or his unsuccessful attempts to influence the family of Nicodemus to prosecute Demosthenes for the murder, events discussed in the preceding narrative. Finally, the last pieces of witness testimony are produced to the effect that Meidias’ record of public service was poor and that his donation of a trireme was a mere tactic to avoid participation in a military campaign as a cavalryman. The formula introducing the witness testimony does not make it clear what facts in Demosthenes’ account are substantiated (§168).60 The same is the case with the witness testimony employed at §174 (“MARTYRES”), to illustrate Meidias’ allegedly poor public service, as a hipparch and treasurer of the Paralus. There is plausibly a level of selectivity in the accounts that the witnesses are invited to confirm: for instance, the sequence of events leading to the donation of the trireme, or Meidias’ delegation of his trierarchy. But it is unlikely that the witnesses could attest to Meidias’ alleged motives and 56

Cf. above, pp. 150-151 for Dem. 54 (arbitration). Cf. MacDowell 1990, 3, 317-319. 58 Cf. §§97, 98. 59 §107. The introductory formula of the witness testimony points to events discussed earlier, cf. esp. §§105-106 and the emphatic repetition of hybris vocabulary associated with Meidias’ actions. 60 Meidias’ services are discussed in §§154-167. No witnesses are identified, but it is conceivable that Demosthenes’ joint trierarch, Philinus (§161), or any of the individuals named in §165 were among them. 57

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Demosthenes’ biased contextualization of these events, which are in fact part of Demosthenes’ rhetoric here.61 Thus except for the goldsmith’s testimony, which relates to the assault, the assembly of witness statements orchestrated is interconnected with Meidias’ ethos and conduct consistently associated with hybris and is not directly related to the incident of assault. This witness testimony is used to confirm selected events or actions of Meidias related to his ethos and political conduct rather than proving facts related to the episode at the Dionysia.

4. Conclusion To conclude: we have seen the artful uses of witness testimony in a private and a public speech, relating to types of assault, studied within the legal context, and the particular circumstances of the speeches. Witness testimony is predominantly used to support facts not directly relevant to or crucial for the proof of the offence which forms the basis of the prosecution and this strategy is dictated by the absence of eyewitnesses to testify to the events. Witness statements produced must have been drafted selectively to confirm certain past events, most likely uncontroversial or largely uncontested, and present the opponent’s offence as another manifestation of his abusive character. Thus, the deployment of witness testimony and its intersection with arguments manifesting the ethos of the litigants is in line with Aristotle’s remarks that some types of martyriai serve the purpose of supporting the speaker’s use of ethos as an artful proof. Through witness testimony the speakers attempt to build key features of the ethos of their opponents and the ethos of their opponents’ witnesses. Furthermore, the number of witnesses (martyres) available is especially important in terms of rhetoric, since the factual basis of the speaker’s claims is presented as within the knowledge of a range of individuals, identified or unidentified.62 The non-preservation of the actual content of the witness testimony (martyriai) makes it impossible to reach firm conclusions about the precise facts they confirmed and to what extent they actually corroborated the facts they purport to corroborate. As a result, conclusions such as the present are inevitably tentative. Nonetheless, careful examination of the legal context and the wider rhetorical strategies in these speeches reveals the dynamics of 61 Witnesses are unidentified, but it is conceivable that Meidias’ poor services, known to “all the cavalry men” (§174), could be corroborated by some of them. 62 Martyres must not be identified with martyriai: we can determine the number of martyriai, but we cannot determine the precise number of martyres presented, in each speech. The witnesses’ number must have had an impact on the dikastai, visually, as Chris Carey reminds me.

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witness statements in confirming certain facts, presumably selectively, or dryly, or ambiguously, in order to undermine the credibility of the defendant and simultaneously increase the credibility of the speaker and his account. Witness testimony is deployed to shed light on the main character trait of Conon and Meidias, their presentation as men of violence: hybris and cognates appear 130 times in 227 sections, referring to Meidias or his actions, and 26 times in 44 sections, with reference to Conon. Ratios are strikingly similar: one mention every 1.8 sections of the OCT text for Meidias and one mention every 1.7 sections for Conon.

CHAPTER 13 WITNESSES, EVIDENCE AND RHETORIC IN DEM. 57 APPEAL AGAINST EUBULIDES KOSTAS APOSTOLAKIS

1. Introduction Demosthenes’ Against Eubulides is one of the three forensic speeches in the corpus of Attic oratory dealing with contested citizenship, the others being Apollodorus’ Against Neaera ([Dem.] 59) and Isaeus’ For Euphiletus (Isae. 12). Our speech was delivered as an appeal against a decision taken in the context of an extraordinary procedure called diapsephisis, activated in 346/5. In this procedure, each member of a deme in turn had to pass a scrutiny concerning his citizen status. Although the particular parameters of this procedure are not quite clear,1 the main issue was whether the person examined was free and whether both his parents were astoi. If he failed to prove his origin and pass the scrutiny, he had the right to appeal to a court, while his fellow-demesmen selected five of their members as prosecutors. If he won the case, he was re-registered in the deme, but if the decision of the jury went against him, the city sold him into slavery. Obviously, such procedures encouraged citizens to attack or revenge themselves on their opponents for personal or political reasons. The atmosphere in the city is also depicted in other speeches of the time, where it is said both that the number of the disenfranchised citizens was large, and that some of the * I would like to thank the editors of this volume for their valuable comments. 1 It seems that the general legal situation was analogous to the scrutiny of new citizens when they came of age, as described in the Aristotelian Athenaion Politeia (chap. 42); cf. below the imaginary “scrutiny of thesmothetai”. On diapsephisis, cf. Isae. 12 (Hypothesis), fr. 6 Thalheim; [Arist.] Ath. Pol. 42.1; Diller 1935, 302-311; Lape 2010, 199-216.

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procedures might have been motivated by corrupt prosecutors.2 Regarding our case, the speaker Euxitheus is appealing against the decision to eject him from Halimus, his deme. The particular Assembly in which the diapsephisis procedure took place was summoned and directed by Eubulides, who was a member of the Council that year. According to Euxitheus, the prosecution questioned the citizen status of his parents, by claiming that his father spoke like a foreigner and that his mother had been a ribbon seller and a wet nurse. Euxitheus attempts to refute the assertions of the prosecution by calling his relatives and fellow-demesmen to bear witness to his citizen status. It is worth noting that the speech contains no fewer than 15 headings for witnesses and depositions. Furthermore, as occasion serves, Euxitheus overturns the prosecution’s evidence by adducing witnesses who support his own interpretation. These testimonies bear the main burden of the rebuttal, and accordingly have a structural function in the speech, being placed in its central part and either preceded or followed by supporting arguments, generalizations on human life and emotionally loaded comments. This strategy is in accordance with Demosthenes’ masterful employment of the so-called artless proofs (atechnoi pisteis) such as depositions and witnesses, and seems to confirm the assumption that these proofs are available for rhetorical exploitation and manipulation no less than the artistic ones (entechnoi pisteis).3 It is self-evident that in cases of contested citizenship, in the absence of official written documents concerning the circumstances of marriage and birth, it was mainly the testimonies of relatives and demesmen which were considered hard evidence. This preference for live evidence over written documents is also typical of the fourth century.4 Besides, according to the speaker, the ulterior motive for the prosecution was a testimony given honestly by Euxitheus but against Eubulides in a previous trial, in which the latter failed to gain one fifth of the votes (§8). In this chapter I focus on the rhetoric of the testimonies in Against Eubulides. My approach also examines the official accusations made by the prosecution and especially possible implicit associations with the comic stage of both the fifth and 2

Cf. Aeschin. 1.77, 86; Hyp. fr. 29 Jensen. In Against Timarchus, Aeschines argues that Timarchus, after being bribed, persuaded the deme members to disenfranchise a certain Philotades of Cydathenaeum (Aeschin. 1.114); for this case, see Fisher 2001, 253-254. 3 Cf. Mirhady 2000b, 182. For an almost “artistic” handling of the artless proofs in the orators, including their exploitation and manipulation, which is not compatible with Aristotle’s position, cf. Carey 1994a. 4 Todd 1990, 27-31, although he too readily accepts the position that the witness just offers visible support (rather than testimony), does comment on the desire to make individuals answerable as a basis for a degree of confidence; Scafuro 1994, 164.

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fourth centuries, in the hope of shedding more light on some aspects of the case.

2. Decisions in the twilight First, the speaker Euxitheus undertakes to show how his deme members handled the diapsephisis procedure, in order to reveal that he is the victim of intrigue and premeditation. He sets out the prehistory of the dispute and the crucial Assembly in which he was ejected from his deme. He then proceeds to narrate Eubulides’ scheme (§§8-14). It is interesting that this narrative reveals the motives and the real character of the opponent. Eubulides (whose name literally makes him a man supposedly associated with euboulia, “good counsel”) in his capacity as a member of the Council (§8: ȕȠȣȜİȪȦȞ) and in charge of the procedure of diapsephisis, is said to have schemed (§9: ਥʌȚȕȠȣȜİȪȦȞ) against Euxitheus in order to expel him from his deme.5 More specifically, Eubulides arranged to hold the procedure as late as possible, so that most of the members of the Assembly would leave and only his own accomplices would remain.6 Euxitheus’ narrative includes every detail of this Assembly, which began at twilight (įİȓȜȘȢ ੑȥȓĮȢ) and was actually completed in the dark (੮ıIJİ … ıțȩIJȠȢ İੇȞĮȚ ਵįȘ), a very untypical setting (§9: “and we did not start on the diapsephisis until late in the afternoon; consequently, it happened that when my name was called, it was already dark”).7 Euxitheus also claims that Eubulides, instead of providing witnesses to confirm his accusations, began shouting and slandering him (§11) and urged the demesmen to vote Euxitheus out. By means of this narrative, Euxitheus constructs the portrait of his opponent: an orator who uses mere slander and who attempts to conceal the absence of testimonies and arguments by his extravagant delivery and invective is described as a typical sycophant and one who uses the practices of a demagogue.8 Moreover, Eubulides refused to accept Euxitheus’ request to 5 For a similar wordplay cf. Ar. Th. 808-809: ਝȜȜ’ Ǽ੝ȕȠ઄ȜȘȢ IJ૵Ȟ ʌ੼ȡȣı઀Ȟ IJȚȢ ȕȠȣȜİȣIJ੾Ȣ ਥıIJȚȞ ਕȝİ઀ȞȦȞ / ʌĮȡĮįȠઃȢ ਦIJ੼ȡ૳ IJ੽Ȟ ȕȠȣȜİ઀ĮȞ; 6 For the role of associations in classical Athens, cf. Jones 1999. 7 Quite different is the tactic in Isae. 7.27-28, concerning the enrolment of Thrasyllus in Apollodorus’ deme, where Thrasyllus only has to stress the favourable outcome of the dispute, without mentioning further details; cf. Griffith-Williams 2013, 69. 8 For the description of such practices as “sycophantic”, cf. §34; also [Dem.] 25.47, where Aristogeiton is said to shout and scream (ȕȠ૵Ȟ țĮ੿ țİțȡĮȖȫȢ) against a certain Agathon, saying that one should torture him, but after receiving money, he kept silent. For the association of loud voice with deceitful and demagogic rhetoric, cf. Dem. 18.132, where Demosthenes attributes to Aeschines this practice (țİțȡĮȖȫȢ). Also, Paphlagon, the comic portrait of the emblematic demagogue

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be given the chance to defend himself. The result was that the number of votes cast was higher than the number of citizens who had voted (§13). The whole procedure is therefore called into question and the decision is said to have been taken literally and metaphorically in the dark, in the sense that, due to absence of witnesses, the parameters of the case were not illuminated. Ȃoreover, it is suspicious that neither Eubulides nor Euxitheus adduced witnesses to support their claims in that Assembly. Concerning the prosecutor, it is not clear why he decided not to rely on witnesses (§11). Perhaps he did not have the appropriate evidence at his disposal, so he opted to use his supporters in order to surprise his opponent and achieve his disenfranchisement. On the other hand, the absence of fellow-demesmen and relatives to support Euxitheus is also striking, given that he should have been more than ever vigilant during such a critical scrutiny.9 The speaker, however, manipulates this deficiency by claiming that his friends and the other neutral Athenians had departed for their homes due to the lateness of the hour. He also attempts to overturn the evidence used by the prosecution by providing as witnesses those very men who had voted against him in the diapsephisis procedure (§14).10

3. Evidence vs invective According to Euxitheus, the main point of the prosecution is his father’s foreign accent and the fact that his mother had performed work inappropriate for a woman of citizen status. The speaker, for his part, argues that his prosecutors ought to give proper testimonies, instead of using hearsay evidence (§34),11 slanders and invective (§§1, 11). Eubulides is actually classified as a sycophant, on the basis that he makes allegations about everything but produces no witnesses to prove them (§34). Accordingly, the speaker adduces plenty of testimonies from his relatives, in order to counter the slanders cast upon his parents (§36), and demonstrate that both his father and his mother were Athenian citizens. It is worth noting that this group of witnesses is gradually expanded from family members to more distant relatives and finally to fellow-demesmen. More specifically, Euxitheus calls upon as witnesses his father’s living Cleon, is credited with a loud voice (Ar. Eq. 255: țİțȡĮȖઅȢ įȓțĮȚĮ țਙįȚțĮ). 9 Cf. Carey 1997, 231. 10 The practice of calling unfriendly witnesses to swear that they had no knowledge usually takes place in the exomosia; for this procedure, cf. Carey 1995, 114-119; Martin 2008, 56-68. 11 Cf. §4 “… the laws do not even permit hearsay evidence to be included in testimony”. Hearsay evidence is often considered tantamount to slander.

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relatives, on both the male and female side, and sets out a detailed presentation of his family tree (§§21-22); then the members of his phratry and of his clan (§23); also, demesmen testifying that he had repeatedly passed scrutiny and entered office without any objection during his dokimasia (§§24-25). Further witnesses are cited with regard to an older diapsephisis, during the administration of Antiphilus, Eubulides’ father, in which Thucritus’ citizenship was never questioned (§§26-27). This last testimony is reserved for men who share the same genos as Euxitheus’ father; they testify that the members of Thucritus’ family are buried in their ancestral tombs (§28). The identification and the detailed presentation of these witnesses are of crucial importance in a case concerning citizenship.12 The attestation of the citizen status of the speaker’s mother (§§30-45) includes the information that she has been married to not one, but two citizens. He mentions the reasons for her divorce from her first husband carefully, to avoid casting any doubt on her citizen status or her morality; it was just a matter of a financial arrangement, so that Protomachus could marry an epikleros relative of his. He admits that his mother was a nurse, but he then calls up the members of the family whom she had served to testify to what they knew, i.e. that she was an Athenian woman who was forced by poverty to undertake humble occupations (§§44-45); in §35 these accusations are emphatically dissociated from the issue of birth and status. Euxitheus not only supports his assertions with plenty of testimonies, but also attempts to subvert the opponents’ evidence and the relevant rhetoric by showing their contradictory argumentation. One such obvious inconsistency is that Euxitheus appears to be a rich man, while both his parents are described as poor (§35). Another inconsistency of the prosecutors is that they both criticize him for the disgrace of poverty while at the same time accusing him of being rich enough to buy off the witnesses (§52). Any hint, however slanderous, at the origin of an Athenian might subvert his public profile and his political ambitions. The speaker promises to demonstrate that he is an Athenian on both his father’s and his mother’s side and, at the same time, to refute the insults and accusations of his opponents (§17). More specifically, Eubulides and his associates have questioned Thucritus’ citizen status, on the grounds that he used to have a foreign accent (§18). It is worth noting that this slander was a typical way of questioning the Athenian origin even of leading politicians in fifth-century comedy. An indicative example is the attack of the comic Plato on the demagogue Hyperbolus, on the grounds that he could not speak Attic Greek 12

Cf. Isae. 12.5-6, where Euphiletus’ case is supported by his named relatives: his brother-in-law, his maternal uncle and three other kinsmen, who, however, are not precisely specified. Cf. Griffith-Williams 2013, 176.

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well.13 Also, in a play by the same poet, Cleophon’s mother is described as a Thracian, speaking in a foreign tongue (Pl. Com. fr. 61 K-A), the implication being that the demagogue is not of Athenian origin.14 These accusations are refuted by the speaker, who provides witnesses to the fact that his father received a share of his family property when he returned, and that nobody accused him of being an alien on the grounds that he spoke with an accent (§19). The citizen status of Euxitheus’ mother is also questioned by the prosecution, who describe her performing humble manual tasks, that of a ribbon seller (IJĮȚȞȚȩʌȦȜȚȢ) and a wet nurse (IJȓIJșȘ). It is worth noting that Euxitheus names his mother once in §68, although Greek litigants conventionally avoided naming women relatives. It seems that he was obliged to do so, because identification in such cases was essential.15 Even more interesting is the fact that he appears ready to offer further testimonies concerning other citizen nurses should the jurors wish (§35)—though he doesn’t actually do so. He apparently believes that the jurors will avoid asking somebody to mention citizen women by name.16 Besides, the bar on landownership by non-citizens would naturally push them towards trade, which made it easy to use work in the Agora to cast doubt on a trader’s status. On the other hand, in the speech a law by Solon is cited, according to which aliens were not permitted to work in the Agora (§31). However, if there was such a law and it was active, there could be no basis for suspicion about a person’s citizenship on the ground of working in the Agora. On the contrary, §34 makes clear that aliens could work in the Agora, if they paid the relevant tax.17 Therefore, it seems that a woman selling ribbons in the market could easily be considered to be a foreigner, metic or even slave. Besides, since the speaker uses the first person plural when speaking about his mother’s occupation as ribbon seller, he himself probably used to assist her in this activity (§31). It seems that the prosecution has already mentioned his presence in the Agora in the past, and he has decided that it is better not 13 Pl. Com. fr. 183 K-A ੒ į’ Ƞ੝ Ȗ੹ȡ ਱IJIJ઀țȚȗİȞ, ੯ ȂȠ૙ȡĮȚ ij઀ȜĮȚ,/ ਕȜȜ’ ੒ʌંIJİ ȝ੻Ȟ Ȥȡİ઀Ș ‘įȚૉIJઆȝȘȞ’ Ȝ੼ȖİȚȞ,/ ਩ijĮıțİ ‘įૉIJઆȝȘȞ’, ੒ʌંIJİ į’ İੁʌİ૙Ȟ į੼ȠȚ / ‘ੑȜ઀ȖȠȞ’, ‘ੑȜ઀ȠȞ’ ਩ȜİȖİȞ (“O dear Fates, the man [Hyperbolus] just couldn’t speak Attic Greek. But when he ought to be saying ‘I used to live,’ he would come out with ‘I use to live,’ and when he should be saying ‘just a bit,’ he would say ” (trans. I. Storey). 14 Cf. Apostolakis 2021, 54-56. 15 Cf. Schaps 1977, 323; Griffith-Williams 2013, 216. 16 Cf. Brock 1994, 344. 17 An alternative explanation is that, if such a law existed, it might concern those having permanent establishments and did not include women working on the fringes of the market.

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to deny it.18 Accordingly, the speaker sets out in detail the appropriate evidence that his opponent failed to bring in court, and stresses the absence of witnesses who would give evidence of his mother either paying foreigner’s taxes or, if she was a slave, testify that she was sold or had been set free (§34). Eubulides, on his part, apparently exploited the social prejudice against women working in the Agora, a prejudice reflected on the contemporary comic stage. In Old and Middle Comedy, women selling goods are common figures. In Aristophanes, in particular, such a woman is a typical character and a laughing stock.19 It might be indicative that in Eupolis (fr. 262 K-A) the citizenship of a prominent politician is apparently questioned on his mother’s side, on the grounds that she is said to be a Thracian ribbon seller. In §§44-45, Euxitheus has to explain that his mother, despite having served at some time in the past as a wet nurse, was an aste. Occupations which were not respectable, such as those of ribbon seller and wet nurse, although practised by citizen women,20 placed the status of the women who exercised them in a grey area; they cast suspicion on the women’s origin and also exploited the shame of working elsewhere, outside the home. The association of a wet nurse, in particular, with a woman of foreign status was probably also reinforced by the contemporary comic stage, where nurses are portrayed as slave attendants.21 Probably, therefore, the prosecution insisted that Euxitheus’ mother was a nurse, not only in order to question her citizenship, but also to cast doubt upon her son’s origin, by implicitly 18

If so, Eubulides attempted to activate another kind of slander, i.e. that a man who was involved in humble activities is unworthy of the status of an Athenian citizen. This is comparable with the supposed assistance which Aeschines offered to his mother in initiation rites, according to Demosthenes (Dem. 18.259-260). 19 Cf. Ar. Vesp. 238 an ਕȡIJȩʌȦȜȚȢ “bread seller”; 497 a ȜĮȤĮȞȩʌȦȜȚȢ “greengrocer”; Lys. 564 an ੁıȤĮįȩʌȦȜȚȢ “dealer in figs”; Ec. 686 an ਕȜijȚIJȩʌȦȜȚȢ “a seller of barley groats”, and a ȝȣȡȩʌȦȜȚȢ “seller of perfumes”; Pl. 427 a ȜİțȚșȩʌȦȜȚȢ “peasepudding seller”. Also cf. Eubulus’ ȈIJİijĮȞȠʌȫȜȚįİȢ; Apostolakis 2021, 57-58. 20 Cf. the bread seller in Ar. Vesp. and the garland seller in Ar. Thes. who are clearly citizens; cf. Brock 1994, 345 (“… in reality it will have been hard to deduce a woman’s status simply from her occupation, except that if she did not work, she was presumably a citizen, and if she was handling significant sums of money, she was probably not”). Cf. also Harris 2014, 201-202, who argues that, despite their exclusion from the political sphere, women could be active in the Agora. 21 Eubulus’ Titthai, for example, is a play of Middle Comedy, where nurses might have been represented as slaves or poor foreigners; cf. Aulus Gellius 12.1.17-8; Hunter 1983, 209. In Menander’s ȉȓIJșȘ a bride, a child and an old woman are mentioned in association with a childbirth and a violent incident. In Antiphanes fr. 157 K-A the speaking character violently disapproves of malignant nurses. For this type of comic invective in Attic oratory, cf. Apostolakis 2021, 56-58.

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associating her duty with activities not unlike those represented on the comic stage. We might even consider that a wet nurse in comedies was used to contribute to the identification of a lost child in recognition scenes; this time, on the contrary, the wet nurse cannot be used as an impartial witness concerning Euxitheus’ birth, but is herself at the centre of the dispute, being regarded as Euxitheus’ mother. Moreover, one could think that, just as a nurse might help to identify a lost child, she might also be in a position to introduce a child illicitly into her family. It also might be indicative that, as comic invective in the fifth century worked against prominent politicians through slanderous allusions to their origin, so in fourth-century oratory invective and insults are also used to subvert the opponent’s public career.22 It seems that both Euxitheus and Eubulides were leading members of the deme of Halimus, with political aspirations. Eubulides was a member of the Council in the year of diapsephisis (§8), while Euxitheus is said to have been a phratriarchos (§23) and a demarchos (§63). However, apparently Euxitheus was not prominent at city level,23 and so invective concerning his origin might have more influence on his fellow-demesmen—as their decision to expel him from the deme indicates—than on the Athenian dicasts. The speaker, for his part, argues that his mother had worked as a wet nurse under the compulsion of poverty, as a way of adapting to it (§42), and adds that even now many Athenian women are wet nurses (§35). Actually, in tomb inscriptions we often find a positive view on wet nurses, which suggests a certain intimacy and ties of affection between them and the family members.24

4. Performing witnesses The speaker claims that he could show many other misdeeds committed by his opponents and lies told by them but, since the audience regards these as off the point, he will omit them (§66; cf. §63).25 He innovates in the last

22

The locus classicus in Attic oratory is Aeschines’ allegations that Demosthenes’ mother is a Scythian (Aeschin. 2.78, 180, 3.172). 23 Actually, few if any local politicians ever were; cf. Osborne 1985, 88-92, where he mentions our speech as evidence that getting too much involved in offices in one’s deme was very different from being prominent in the city as a whole. 24 Some of them are addressed as ȤȡȘıIJĮȓ or ijȓȜĮȚ; cf. Ǻrock 1994, 336-337. 25 Bers 2003, 127 n. 61 considers this statement an indication of revision: jurors and spectators shouted the speaker down and forced him to abandon the narrative of peripheral incidents about Eubulides. However, when he says that he will omit more

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section of the speech which, although it does not contain any new witnesses or depositions, is in fact an elaboration of the witness testimonies which dominate the whole speech. By means of this innovation, all witnesses and depositions already presented, instead of being summarily repeated at the end of the speech as a routine recapitulation (ਕȞĮțİijĮȜĮȓȦıȚȢ, Hermog. Meth. 12), are re-performed on the platform as a staged, imaginary scrutiny of thesmothetai (§§ 66-67): Just as you interrogate candidates for thesmothetes, so will I in the same way interrogate myself. ‘Sir, who was your father?’ ‘My father? Thucritus.’ ‘Are there relatives who will testify for him?’ ‘Certainly. To start, four first cousins, then a cousin’s son, then the men who married the female cousins, then phratry members, then clan members sharing a cult of Ancestral Apollo and Household Zeus, then those who shared the same tombs, then deme members to attest that he often passed scrutiny and served in magistracies, and who themselves clearly confirmed him as a citizen at the diapsephisis.

In this “scrutiny within a scrutiny”26 the speaker compares himself to a candidate for the position of thesmothetes; in this way, a citizen whose citizenship is in question appears to meet the requirements to assume even the office of the archons who administered the popular court in which he is currently being tried. It is interesting that here the speaker encourages the jurors to share a sensory experience and blur the distinction between here and there, i.e. between the court and the Stoa Basileios, where the thesmothetai undergo scrutiny and give their oath (cf. Poll. On. 8.85-87).27 Moreover, it offers an implicit argumentum a fortiori. If Euxitheus could pass the test for thesmothetes, by definition he must pass the test for deme membership and citizenship. At the same time, the jurors are called upon to edit their verdict on Euxitheus’ citizenship not only as dicasts, but also as witnesses (cf. the verb șİȐıĮıșİ) who have participated in this imaginary procedure of anakrisis and can testify to his descent. This invented dialogue also increases the opportunity to provide a more theatrical delivery of the testimonies, probably by the speaker differentiating his tone of voice when imitating the examining officers and the person under investigation. This theatrical invention enables the speaker to construct an impressive line of witnesses to testify for his father and his mother, in an inclusive catalogue, beginning with his close relatives, then phratry members, clan members, and deme members; even homotaphoi, men who share the same tombs points concerning his opponents, he might be using a convenient praeteritio (cf. §66: ਥȐıȦ), a technique used to hint at misconduct without supplying evidence. 26 Scafuro 1994, 165. 27 For this kind of imaginary sight, cf. O’Connell 2017, 148-157.

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(§68), are included. This section with the performed witnesses flows into a loaded epilogue, in which Euxitheus declares that loss of citizenship is tantamount to death. This is supported with an argument a fortiori: since the jurors interrogate the nine archons on whether they treat their parents decently, they should give him the right to bury his mother in their ancestral tombs. The speaker ends his speech with a surprising culmination, declaring that he would prefer to commit suicide rather than abandon his relatives, who are so numerous (§70).28 In this way, the subject of the relatives who have paraded as witnesses in court is raised again at the very end of the speech.29

5. Reconsidering the supporting witnesses The witness testimonies, aptly arranged and accompanied by relevant comments, at first sight give the impression that Euxitheus’ relatives unanimously support him by testifying to matters which are common knowledge. However, as is often the case, we should be cautious about the speaker’s assertions, and rather consider possible hidden aspects of the case. Indeed, it has often been remarked that he devotes the major part of his speech to proving the Athenian citizenship of both his father and his mother, and treats his own birth conditions briefly. He never actually produces witnesses explicitly testifying that he is a legitimate son of his parents; he only adduces witnesses to attest that he was entered into his phratry, enrolled in his deme and was chosen as a candidate for priest of Heracles (§46). This cursory treatment is considered by scholars all the more suspicious considering the abundance of witnesses and depositions used to testify to the Athenian citizenship of his parents. 28 Cf. the adjective ਙʌȠȜȚȢ which has a poetic colour (e.g. A. Eu. 457; S. OC 1357, Ph. 1018). The adjective dramatically describes the situation in which the speaker will find himself if his appeal is rejected (in oratory cf. Ant. Tetr. A.2.9; [Lys.] 20.35; in all these cases the defendant will become ਙʌȠȜȚȢ as a consequence of a condemnation). It is indicative that in another case of contested citizenship, which was decided in the diapsephisis of the very same year, a man called Antiphon was disenfranchised, but illegally returned to Athens some years later, probably between 343 and 340, having allegedly promised Philip that he would burn down the dockyard. Demosthenes caught Antiphon and brought him before the Assembly. In the debate which followed, involving the Assembly and the Areopagus, Aeschines is reported as insisting that Demosthenes violated Antiphon’s rights, but the kind of punishment ultimately meted out to Antiphon (the rack) indicates that he was considered a non-citizen; cf. Yunis 2001, on Dem. 18.132-133. 29 For the parading of relatives in loaded epilogues, cf. Apostolakis 2017.

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The speech mainly focuses on two kinds of supporters: the supposed associates of Eubulides, who managed to strike Euxitheus from the official register of the deme by their vote, and the relatives of Euxitheus, who support him by giving their testimony.30 Concerning the trustworthiness of the witnesses, it is explicitly stated that the prosecution accuses Euxitheus of having bribed the witnesses with his riches (§52). The role of kin who were poor and accepted money may have been crucial.31 It is true that, after having presented the witness of the members of his phratry that he was introduced to it normally (§46), he humorously refutes any allegation of having bribed the witnesses (§54: “Yet I assume that I did not persuade them with money to do this when I was a child”). The objection is that they may well have accepted money from him recently, in order to confirm their previous acceptance. ǿn any case, one might think that the witnesses who attest to the marriage and the members of the phratry for whom Thucritus gave a wedding feast are lying (§43), and have therefore been bribed by the speaker, as the prosecution insists (§52). The lack of any attestation to Euxitheus’ birth, in particular, and especially the fact that no relatives testify to his amphidromia or dekate, seems suspect.32 Accordingly, many reconstructions of the case have been suggested, but none can be proved with certainty. More specifically, Louis Gernet suspects that Eubulides argued that Euxitheus was a rich metic who bribed the members of a poor family to testify to his citizen status.33 We should take into account that even the citizenship of former metics was met with suspicion and concern by the Athenians.34 Another possible reconstruction is that Euxitheus was his mother’s illegitimate child, born during Thucritus’ absence in the war, and was afterwards passed off as legitimate.35 An improvement to this scenario is made by Chris Carey, who suggests that Euxitheus might simply have 30 For kinship in courts, cf. Humphreys 1986; for the associations in classical Athens, cf. Jones 1999. 31 Humphreys 1986, 62; cf. Carey 1994a, 105-106. 32 A more complicated scenario has been suggested by Kears 2013, 280, who speculates that Euxitheus’ mother was a pauper who married a wealthy foreigner from Leucas, Euxitheus’ father, who passed himself off as an Athenian by claiming that he was a victim of the Decelean war. This seems highly fanciful, and in any case impossible to prove. 33 Gernet 1960, 11. 34 Apollodorus, for example, reports Polycles’ repeated disparaging comments on his origin ([Dem.] 50 Against Polycles, passim); similarly, Chaerephilus’ sons were satirized by comic poets as newcomers to Athenian political life (Timocl. frr. 14, 15 K-A; cf. Apostolakis 2019, 141-149). 35 Humphreys 1986, 62.

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been a bastard (ȞȩșȠȢ), i.e. Nicarete was a mistress.36 This seems to be compatible with the assumption that all the slanders concerning her occupations were supportive accusations intended to increase the jurors’ distrust, while the speaker has shifted the major point of the prosecution. More specifically, Susan Lape suspects that Eubulides may have called Euxitheus’ mother “the ribbon seller” alluding to her servile origin, and Euxitheus avoids answering the accusations of her supposed slave origin, instead focusing on the family’s poverty.37 To sum up, there is an almost unanimous sense among scholars that the massive construction of witness evidence in the speech conceals a hidden agenda. It is possible that the witnesses offered by Euxitheus’ kin for his citizenship were not speaking from personal knowledge, and that he had more close relatives who were unwilling to be present at the trial and testify for him.38 By emphasising the testimonies concerning his parents’ origin, Euxitheus is probably attempting to bury the most crucial issue: whether Thucritus and Nicarete were his real parents.

6. Conclusion In forensic speeches, the various pieces of evidence are often susceptible to different interpretations, representations, exaggerations, discreditations and distortions which often echo current social and political preoccupations and stereotypes, and it is precisely in that grey area that rhetoric dominates. The examination of witness evidence and testimonies in the speech Against Eubulides offers the opportunity to reflect on their function and rhetorical handling, and on the deficiencies of the Athenian system of checking citizenship. The performative dynamics of witnesses also enhance their influence on the audience and contribute to a more vivid presentation of the supporting evidence. Moreover, while the accusations of the prosecution are described as slanders not unlike those reproduced on the comic stage, the “quasi-theatrical” performance of the witnesses offers a decisive answer in a solemn colour. However, while the speaker attempts to persuade the jurors that the decision to eject him was taken in the dark, it appears that some aspects of 36 In fact, the speaker himself considers this alternative only to dismiss it, on the grounds that it would be open to his relatives to inherit all his property (§53). Another alternative, suggested by Chris Carey (1994a, 105-106), is that both Thucritus and Nicarete, Euxitheus’ parents, held citizen status and, having lost their children, presented an alien child as their own. 37 Lape 2010, 206. 38 Cf. Humphreys 1986, 62.

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his own case remain in the semi-darkness, especially concerning the circumstances of his birth. We may speculate that the main point of the prosecution is cleverly suppressed by Euxitheus, who elects to focus his argumentation and the supportive witnesses on matters which can be adequately refuted. Our speech, therefore, is an example of oratory where the available evidence and witnesses are so manipulated as to support favourable interpretations and conceal undesirable implications. From this point of view, it seems that, far from being “artless proofs”, witnesses may be susceptible to artistic handling by orators.

CHAPTER 14 THE EVIDENTIAL VALUE OF RELIGIOUS OBSERVANCE IN ATHENIAN INHERITANCE DISPUTES BRENDA GRIFFITH-WILLIAMS

1. Introduction “Evidence is a means of proof”: that is the basic definition of “evidence” in modern legal textbooks, and it is obvious enough that anyone who wants to win a contested case will need evidence to support his or her version of events. It seems equally obvious that evidence must be relevant to the case – in other words, that it must be in some way connected with the facts or issues in dispute, even if the connection is not a particularly strong one. But that raises questions about the kind of evidence that will be considered relevant in a particular case or class of cases, and in different jurisdictions or at different times.1 This chapter examines a category of evidence used in some fourth-century Athenian inheritance disputes, relating to attendance at festivals and sacrifices and the conduct of funeral and commemorative rites, which has sometimes been characterized by modern scholars as “extra-legal” or “irrelevant” to the issues in dispute, intended to distract the judges from the legal issues by appealing to their emotions rather than their reason. In fact, it can be argued that—allowing for cultural differences—the Athenian courts had similar expectations to those in the modern world: that a legal claim would be supported by evidence, and that evidence must be relevant 1

For the theory of legal evidence summarized in this paragraph, see Twining 2006, esp. 121 and 193; and, for its application in the Athenian context, Griffith-Williams 2012.

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to the facts in dispute. But relevance is culture-specific;2 there were significant differences in legal procedure, in the nature of the evidence that was available, and in social norms and expectations of behaviour, all of which make it likely that evidence considered relevant in a fourth-century Athenian legal dispute might not conform with 21st century conceptions of relevance.

2. Disputed inheritance claims: issues and evidence In a contested inheritance claim the disputed issues are most likely to be the identity of one or more of the claimants as blood relations of someone who has died, or the validity of a will supposedly made by the dead person—or, in the Athenian context, the validity of an adoption. In the modern world scientific techniques of document and handwriting analysis can help to detect a forged will. We routinely use passports, birth certificates, or other documents to prove our identity. If necessary, DNA testing can establish our parentage with near certainty. But all of these are relatively recent developments, and documentary or scientific evidence, even when it is available, is not always conclusive. It may be impossible to prove a case beyond doubt, so the outcome is a matter or judgment for the adjudicator, who (in a non-criminal case under English law) will make his or her decision on the balance of probabilities. In the ancient world, where scientific evidence was not available and documentary evidence was routinely treated with suspicion, litigants had to use different means of proof, and argumentation from probability inevitably played a larger part. In Athenian inheritance disputes, as in other litigation, the main form of evidence was witness testimony, which had the advantage that a witness could be held accountable for his evidence.3 A fourth-century Athenian claiming an estate under a will would be expected to produce both the document itself and testimony from witnesses who were present when it was made. In a case where he needed to prove his identity, he would produce testimony from witnesses that he had been properly introduced to his father’s phratry or registered in his deme as a legitimate son (the closest equivalent in classical Athens to a modern birth registration system). But these basic evidentiary “facts” were usually supplemented by others designed to support the speaker’s story and persuade the judges that it was more likely to be true than his opponent’s—including, in some cases, evidence relating to funeral rites and other religious observances. Such evidence never forms the largest or most significant part of a litigant’s case, 2 3

Twining 2006, 121. Cf. Todd 1990, 28-30.

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but it could be used as a powerful means of persuasion in inheritance disputes, especially by a skilled professional speechwriter such as Isaeus who specialized in this area of the law. It is undoubtedly true, as we shall see, that some of this evidence was intended to appeal to the judges at an emotional level, but persuasion is a complex process involving both reason and emotion; as Aristotle knew,4 the idea of two separate categories of evidence, one “rational” and the other “emotional”, would be a false dichotomy.5

3. Social norms and expectations Evidence that a claimant had conducted the testator’s funeral, or attended church services with the testator during his lifetime, would almost certainly not be considered relevant to an inheritance claim in a modern English court, because there will in most cases be no connection between inheritance and religion. In fourth-century Athens, by contrast, inheritance had a religious dimension that was inseparable from the transmission of material property. An Athenian’s closest relatives, who were entitled to inherit from him if he left no legitimate sons, were his anchisteia hieron kai hosion, “nearest in sacred and secular matters”. During his lifetime, he would be expected to invite his close friends and relatives to attend his private sacrifices or accompany him to the public festivals, while his enemies would be excluded. After his death, his heir inherited not only his material estate but also his family cults and the duty (moral rather than legal) to conduct the funeral and commemorative rituals.6 It is sometimes implied that a direct descendant of the deceased, ideally his legitimate son, had a stronger obligation to carry out these duties than a collateral relative, and that could be among the reasons for a childless man to adopt a son.7 In a contested inheritance case, these expectations could be exploited either to support a speaker’s case or to undermine that of his opponent. One speaker, claiming the estate of his adoptive father, Menecles, says that Menecles “began to consider how he could stop being childless and have someone who would look after him in old age and bury him after his death,

4

Arist. Rh. 1.2. Cf. Griffith-Williams 2016, esp. 46 and 54. 6 Cf. Kurtz and Boardman 1971, 143: “It was essential that the dead receive the customary rites of burial, but it was equally important the he receive them from the proper hands”. 7 Cf. Kurtz and Boardman 1971, 147: “Assurance of proper performance of annual rites was reason enough for a man to adopt a son”. 5

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and then continue to carry out the customary rites for him”.8 Another makes the point in more general terms: “All men who are soon to die take precautions not to leave their families without heirs and to ensure that there will be somebody to offer sacrifices and perform all the customary rites over them”.9 In some circumstances a childless Athenian might even be motivated to adopt a son in order to avoid placing the responsibility for the commemorative rituals on members of his family whom he personally distrusted or disliked. In the context of Athenian culture, then, a speaker who criticized his opponent for claiming an estate without having conducted the dead man’s funeral would undoubtedly have been taken seriously by a panel of Athenian judges. They would also have found it plausible that the dead man was unlikely to have adopted someone whom he excluded from his household sacrifices, because going to festivals together or sharing sacrifices was “a symptom and a reinforcement of close social bonds”.10 Our analysis of the relevant texts begins with three speeches written by Isaeus for clients whose claims were based on kinship to the deceased, and who dispute the validity of wills produced by their opponents.

4. Isaeus 9: On the estate of Astyphilus The speaker of Isaeus 9 claims the estate of his half-brother, Astyphilus, a mercenary who died abroad. His opponent, Cleon, has produced a will in which Astyphilus supposedly adopted Cleon’s son; but the document in question, according to the speaker, is really a forgery produced by Cleon and his associate Hierocles (a maternal uncle of both Astyphilus and the speaker himself). In a bitter denunciation of his uncle’s treachery, the speaker produces witnesses who testify that Hierocles approached Astyphilus’ friends offering the forged will to anyone who would agree to share the estate with him. This central allegation is supported by the claim that Astyphilus would never have wanted to adopt Cleon’s son because he and Cleon were sworn enemies after a fight between their fathers about the division of their patrimony had resulted in the death of Astyphilus’ father. The speaker cannot produce any positive testimony on the fight, although he says that it was witnessed by many demesmen, but he does have other 8

Isae. 2.10. Translations from Isaeus 1, 2, and 4 are those of Griffith-Williams 2022. Isae. 7.30. Except where otherwise indicated, translations from Isaeus 7, 8, and 9 are those of Edwards 2007. 10 Parker 2005, 44. Cf. Parker 2005, 43: “In inheritance cases, the question of who a testator did and did not invite to his sacrifices becomes an important index of intimacy (whether deriving from supposed kinship or not)”. 9

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evidence of the enmity between Astyphilus and Cleon, and of the close relationship between Astyphilus on the one hand and the speaker and his father (Theophrastus) on the other. That includes evidence relating both to the conduct of Astyphilus’ funeral and to shared religious observances during his lifetime. In a brief passage near the beginning of the speech Isaeus seeks to undermine Cleon’s claim to the estate by pointing out that he did not take responsibility for Astyphilus’ funeral, while also explaining why his client was unable to conduct the funeral himself. The role of the speaker’s frail and elderly father adds pathos to the account, and foreshadows the later details of relations within the family: But when my brother’s remains were brought home, the one who pretends to have been adopted long ago as his son did not lay them out or bury them, but Astyphilus’ friends and fellow-soldiers, seeing that my father was sick and I was abroad, themselves both laid out the remains and performed all the other customary rites, and they led my father, ill as he was, to the tomb, knowing full well that Astyphilus regarded him with affection. (Isae. 9.4)

In his lifetime, according to the speaker, Astyphilus never went to the sacrifices with Cleon: Next, it would surely have been reasonable for Astyphilus, whenever he was in Athens, to go to the sacrifices, at which all Athenians entertain each other, with Cleon rather than anybody else, since he was a demesman and his cousin, and especially if he intended to adopt his son. To prove, then, that he never went with him, the clerk will read you the deposition of his demesmen. (Isae. 9.21)

Shared religious observances, on the other hand, emphasize the close ties between the speaker, his father, and Astyphilus: Further, my father took Astyphilus everywhere with him when he was a boy to the religious ceremonies, just as he took me, and introduced him to the followers of Heracles, so that he might become a member of the association. The members themselves will testify to you. [WITNESSES] Next, consider my relationship with my brother, gentlemen. First, I was brought up with him from childhood, and second, I never had a dispute with him, but he regarded me with affection, as all our relatives and friends know. I would like them to come forward as witnesses. (Isae. 9.30)11

11 Cf. Isoc. 19.4 where the speaker, who claims to have been adopted in a will left by his friend Thrasylochus, says that when he and Thrasylochus were children they

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The speaker reverts to Astyphilus’ funeral in his concluding argumentation, asserting that it “was totally improper of [my opponents] to claim the property of Astyphilus when they ... did not bury his remains but claimed the property before performing the customary rites over him” (Isae. 9.32). Finally, in the course of an emotional appeal to the judges, he warns them not to allow Cleon to perform the annual commemorative rites: Therefore, all of you, take my side, gentlemen; if you are persuaded by Cleon to vote in any other way, consider what you will be responsible for. First, you will cause the bitterest enemies of Astyphilus to go to his tomb and perform the ceremonies over him … (Isae. 9.36)12

In sum: the success of Isaeus’ client in speech 9 depends on the willingness of the judges to believe his allegations about the forged will. In case any of them might be sceptical, he seeks to persuade them through his story of the enmity between Astyphilus and Cleon that Astyphilus would have been most unlikely to adopt Cleon’s son. His account of the funeral would cast doubt on the validity of Cleon’s claim to the estate, while the evidence of Astyphilus’ religious observance adds credibility to his account of friendly and hostile relations within the family.

5. Isaeus 4: On the estate of Nicostratus Isaeus 4 is a short supplementary speech delivered by a synegoros on behalf of two brothers, Hagnon and Hagnotheus, who claim the estate of Nicostratus as his cousins and next of kin. Nicostratus, like Astyphilus, was a mercenary who died abroad, and one of his fellow-soldiers, Chariades, claims to have been adopted by Nicostratus in a will which Hagnon and Hagnotheus denounce as a forgery. Unlike the speaker of Isaeus 9 they do not claim to have had a close relationship with Nicostratus, who had been away from Athens for 11 years, and there is no mention of shared religious observances during his lifetime. But, as their synegoros reports, their witnesses have testified that they conducted his burial. Chariades, on the other hand, failed conspicuously to carry out the duties expected of an adopted son:

“did not perform a sacrifice, a festival observance, or any other celebration without each other” (trans. Mirhady). 12 As Chris Carey points out to me, the idea that burial by and offerings from an enemy are repellent to the dead also occurs in tragedy, notably in Aeschylus’ Oresteia, e.g. A. Ag. 1541-1550, Cho. 22-53.

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Chapter 14 And consider this, the most important point and the greatest testimony to Chariades’s effrontery. Since he neither took away the body of his adoptive father for cremation, nor collected the bones, but left all this to be done by strangers, is he not to be considered most impious in claiming to inherit the property of the dead man, for whom he never performed any of the customary rites? (Isae. 4.19)

We do not know the full details of the case put forward by Hagnon and Hagnotheus, because the main speech has not survived, but it appears that they were struggling to prove that the will put forward by Chariades was not genuine.13 It is not surprising, then, that their supporting speaker places exaggerated emphasis on the conduct of the funeral, in the hope of convincing the judges.

6. Isaeus 1: On the estate of Cleonymus The point at issue in Isaeus 1 is the validity of the will left by Cleonymus. Isaeus’ client, a nephew of Cleonymus who says that he and his brother are Cleonymus’ next of kin, does not deny that his uncle made the will; he claims that Cleonymus had intended to revoke it because it no longer represented his true wishes, but had died before he could do so. In a rather complicated argument (which the judges may perhaps not have found entirely convincing), Isaeus seeks to explain why Cleonymus had decided to make a will in favour of more distant relatives, even though he was really fonder of the speaker and his brother than of anyone else, and had always wanted them to inherit his property. The speaker says that after the death of their father, his and his brother’s legal guardian was their paternal uncle, Deinias, with whom Cleonymus had quarrelled. Cleonymus made the will because he was afraid that he might die while his nephews were still minors, so that his estate would come under the control of his enemy, Deinias. According to the speaker, he was concerned not only about the disposition of his material property, but also about responsibility for the commemorative rituals: For he thought it would be terrible to leave his worst enemy as the guardian of his relatives and in control of his property, and for Deinias, with whom he had been at odds during his lifetime, to be left to perform the customary rites for him until we grew up. (Isae. 1.10)

To support his claim that Cleonymus had intended to revoke his will, the 13

See Griffith-Williams 2022, 124-125.

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speaker also mentions (with the support of witnesses) that Cleonymus had quarrelled with one of those named in the will, Pherenicus: And I don’t need to explain the substance of their disagreement, but I will mention some significant signs (ıȘȝİ૙Į)14 that it existed, to which I shall also be able to produce witnesses. First of all, when he was sacrificing to Dionysus, and had summoned all his relatives as well as many other citizens, he did not invite Pherenicus. (Isae. 1.31)

This speech as a whole is short on narrative and long on argumentation from probability, leaving several possible questions about the facts of the case unanswered. It is notable that, despite the allusion to the “customary rites”, nothing is said about Cleonymus’ funeral. (Was it, in fact conducted by the speaker and his brother, or by their opponents?) The testimony about Cleonymus’ quarrel with Pherenicus does not cover his relations with the other beneficiaries of his will, and it is possible that Cleonymus and Pherenicus were reconciled before the former’s death.15 Overall, then, the evidence of religious observance is a relatively unimportant aspect of the speech, but it would have contributed to Isaeus’ aim of casting doubt into the judges’ minds about the validity of the will.

7. Isaeus 8: On the estate of Ciron In Isaeus 8 the dispute centres on questions of identity and status rather than a will. The speaker claims the estate of the deceased Ciron, who, he says, was his mother’s father. His mother is now dead, and Ciron’s two sons by a second marriage have also died, so the speaker and his brother are Ciron’s only surviving descendants. But his opponent, Ciron’s nephew, says that the speaker has no claim to the estate because his mother was not Ciron’s legitimate daughter. In response, the speaker produces what evidence he can of his mother’s identity as Ciron’s legitimate daughter: she was formally betrothed, with a dowry, to her two husbands; and the speaker’s father, her second husband, held a wedding feast for her with his phratry members; and she was chosen by the wives of her husband’s fellow-demesmen to preside at the Thesmophoria. None of this would have happened, according to the speaker, if she had not been Ciron’s legitimate daughter. As to his own status as an Athenian of legitimate birth, the speaker says that he and his brother were introduced to their father’s phratry at birth; their father swore 14 15

On the meaning of ıȘȝİ૙Į, see p. 182 below. Cf. Griffith-Williams 2022, 23.

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on oath that they were the children of an Athenian mother formally married, and none of the phratry members made any objection. A little earlier in the speech, he had already described how Ciron treated his two grandsons: Now we can put forward other evidence (IJİțȝ੾ȡȚĮ) besides this to show that we are the children of Ciron’s daughter.16 As was natural, since we were the sons of his own daughter, he never made any sacrifice without us, but whether he was performing a small or large sacrifice, we were always there joining in it with him. And not only were we invited to these ceremonies but he always took us into the country for the Dionysia; we attended public spectacles with him and sat next to him, and we went to his house for all the festivals. When he sacrificed to Zeus Ctesius, a sacrifice that he took especially seriously and to which he admitted neither slaves nor free men from outside the family, but performed all the ceremonies personally, we shared in this, laid our hands on the victims with his, placed our offerings with his, and assisted him in the other rites; and he prayed that Zeus grant us health and wealth, as was natural for him, being our grandfather. Yet if he had not considered us his daughter’s children and seen us as the only remaining descendants left to him, he would never have done any of these things … (Isae. 8.15-17)

On the surface, this appears to be a reasonably straightforward factual account. We cannot know how the speaker performed the passage—what gestures or tone of voice he used—but the words in themselves neither explicitly reveal any emotion on the speaker’s part nor solicit an emotional response from the judges. If we look at the passage more closely, however, we may conclude that it was designed to elicit such a response indirectly. All the speaker really needed to say, in order to make his point, was that when he and his brother were children, Ciron always invited them to his sacrifices and took them to public spectacles and festivals—and he would not have done that if they had not been his legitimate grandsons. But he adds some apparently superfluous detail, including the specific reference to Zeus Ctesius (the god associated with household wealth) which takes on a particular significance in the context of the speaker’s claim to inherit his grandfather’s estate. And in describing how the two boys sat next to their grandfather at the festivals, and laid their hands with his on the sacrificial victims, Isaeus uses the rhetorical device of enargeia to create pictures in the minds of the audience which may have left a more lasting impression 16

Edwards 2007 translates this sentence slightly differently: “Now we have other proofs beside these to put forward to prove that we are the children of Ciron’s daughter”. On the meaning of IJİțȝ੾ȡȚĮ, see pp. 182-183 below.

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than the words alone. Ciron’s grandson tells an extraordinary story about a quarrel over the conduct of his grandfather’s funeral, explaining that he wanted to conduct the funeral from his own house but was prevented from doing so by Ciron’s widow (whose brother, Diocles, is the villain of the story): I came with one of my relatives, my father’s cousin, to remove the body for burial from my own house. I did not find Diocles at the house, so I entered, accompanied by bearers, and was ready to remove it. But when my grandfather’s widow asked me to bury him from that house, and with supplications and tears said that she herself would like to help us lay out and adorn his body, I consented, gentlemen. (Isae. 8.21-22)

The grandson agreed to the widow’s request on the understanding that he himself would take responsibility for conducting the funeral from Ciron’s house, and Diocles accepted payment from him for the things that were needed for the funeral. This, according to the speaker, confirms that Diocles recognized him as Ciron’s legitimate grandson, but despite that Ciron’s nephew—at the instigation of Diocles—has had the audacity to oppose his claim to the estate. This part of the narrative ends by describing a dramatic confrontation at the graveside on the day of the funeral: I allowed [my opponent] to assist in all these rites as being my grandfather’s nephew, but he should not have allowed me to do so, if what they now have the audacity to say were true. But he was so struck by the truth of the matter that at the tomb, when I spoke and accused Diocles of stealing the money and introducing this man to claim the estate, he didn’t dare utter a sound or say any word of what he now dares to say. (Isae. 8.26-27)

8. The weight of the evidence In all the examples discussed above, the Athenian judges would have seen the evidence of religious observance (or non-observance) as having a connection with the disputed issues: did Cleonymus intend to revoke his will (Isae. 1)? Did Nicostratus adopt Chariades (Isae. 4)? Did Astyphilus adopt Cleon’s son (Isae. 9)? Was the speaker’s mother a legitimate daughter of Ciron (Isae. 8)? So, in modern terms, we can accept that this evidence is “relevant” but it is worth distinguishing between the “relevance” and the “weight” of legal evidence: The ‘weight’ or ‘cogency’ or ‘probative force’ of a single evidentiary proposition, or of a mass of evidence, refers to the strength or weakness of the support or negation. Questions of relevance (is there any connection?)

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To use a different frame of reference, which would have been familiar in fourth-century Athens, the “proofs” or evidentiary facts put forward in these texts are not “necessary signs”, but they are still “signs”. As Aristotle explains:18 Among signs (ton semeion), some are related as the particular to the universal; for instance, if one were to say that all wise men are just, because Socrates was both wise and just. Now this is a sign (semeion), but even though the particular statement is true, it can be refuted, because it cannot be expressed as a syllogism. If, on the other hand, one were to say it is a sign that a man is ill, because he has a fever, or that a woman has given birth to a child because she has milk, this is a necessary sign. This is the only kind of sign (semeion) that is a proof (tekmerion); for only in this case, if the fact is true, is the argument irrefutable. Other signs are related as the universal to the particular, for instance, if one were to say that it is a sign that this man has a fever, because he breathes heavily. This argument can also be refuted, even if the fact is true, since a man can breathe heavily without having a fever. (Arist. Rh. 1.2.18, 1357b) (Loeb trans., adapted)

Aristotle’s definitions are not reflected in Isaeus’ use of this terminology (or, indeed, in that of other Athenian speechwriters). On the one hand, he uses ıȘȝİ૙Į at 1.31 (p. 179, above), which might be taken as recognition that the evidence he is about to produce falls short of conclusive proof. On the other hand, what he calls IJİțȝ੾ȡȚĮ at 8.15 (p. 180, above) are equally inconclusive: the evidence in both speeches does support the point he wants to make, but does not actually prove it. On the face of it, then, he might appear to be exaggerating the probative value of his evidence in speech 8, but there is no reason to think that litigants would have been expected to use the word tekmerion only in its strictest Aristotelian sense, or that the judges would have understood it in that sense.19 For that reason I have chosen to 17

Twining 2006, 193. Cf. Allen 2001 72-73: “Within the class of signs—broadly so called—Aristotle distinguishes between those that furnish conclusive evidence, which he calls ‘tokens’ [tekmƝria], and those which furnish only inconclusive evidence, for which he reserves the term ‘sign’ [sƝmeion] in a narrower sense. … Signs furnish evidence. With their aid, we resolve questions of fact, whether the solution is conclusive or— in the old-fashioned sense of the term—probable”. 19 In fact, Isaeus frequently uses tekmerion in the more general sense of “sign” rather than “necessary sign” or “proof”; cf. Isae. 1.12, 13; 3.19, 54, 79; 4.1, 12; 5.26, 31; 6.1, 28; 7.11; 8.6, 15; 9.10, 16, 26; 10.6, 16; 11.40. It seems always to be 18

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translate IJİțȝ੾ȡȚĮ at Isae. 8.15 (p. 180 above) as “evidence” rather than “proofs”. It would, in any event, be wrong to see the lack of conclusive evidence, in any of the speeches discussed, as an indication either that the speaker’s case was weak or that he was trying to deceive the judges.20 Isaeus was simply making the best use he could of the evidence available to him, and the judges’ task was to decide, after hearing all the evidence put forward on both sides, which of the rival claimants to an estate had made the stronger case.

9. Conclusion Evidence of religious observance in Athenian inheritance disputes, though neither essential nor, in itself, conclusive, could, nevertheless, provide useful indications of status, identity, and relationships, either to support a speaker’s claim or to undermine that of his opponent. While it might enhance the persuasiveness of a speaker’s case by appealing to the judges’ emotions, this evidence was always presented as part of a rational argument from probability designed not to distract the judges from the legal issues but rather to persuade them that the law was on the speaker’s side.

indistinguishable in meaning from semeion, which he uses only four times: Isae. 1.31; 6.48; 12.11, 12. 20 William Wyse’s insistence on the “inconclusiveness” of the reasoning in Isae. 8 (Wyse 1904, 603) is typical of his tendentious commentary in which the underlying assumption is that Isaeus’ clients were always in the wrong.

CHAPTER 15 THE ULTIMATE EVIDENCE: HYPERIDES IN DEFENCE OF PHRYNE: NOTES FOR THE NEW CRITICAL EDITION OF THE FRAGMENTS LÁSZLÓ HORVÁTH*

Following the centenary of Jensen’s 1917 Teubner edition of Hyperides, a full study of the fragments needs to be undertaken in preparation for the new critical edition, along with the new speech fragments recovered over the past 100 years.1 The fragments of Speech LX (Jensen), delivered in defence of Phryne, are reproduced in a renewed, partly expanded, almost print-ready form in the Appendix (App.). It goes without saying that the preliminary work also involved a reassessment of our knowledge of the speech and a complete review of the relevant literature. In the course of all this, I have also examined the question of the last extra orationem argument or proof, the denudation of Phryne, the tearing off of the upper garment, used at the end of the speech (?), which has captivated the imagination of audiences from antiquity to the present day. The past century has seen a number of major scholarly studies on this speech.2 Although there have sometimes been strikingly different results in * The study was supported by the NKFIH grant NN 124539 (Textual Criticism in the Interpretation of Social Context: Byzantium and Beyond). The author would like to express his gratitude to Boldizsár Fejérvári for his advice on the English text of the paper. 1 Two new texts of outstanding importance: new fragments of the speeches Against Diondas and Against Timandros. See Carey et al. 2008; Horváth 2014. 2 See Cavallini 2004, 2010, 2014; Cooper 1995; Eidinow 2016; Filonik 2013; Kapparis 2017, 2020, 2021; Kowalski 1947; McClure 2003; O’Connell 2013, 2017; Raubitschek 1941; Rosenmeyer 2001; Semenov 1935; Todisco 2022.

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the exploration of the connections between the handful of testimonies and fragments and the actual methods of the famous speech and defence, the fact remains that the basic theses had been established in the “pre-Jensen” period and have often featured in later literature without mention of the protos heuretes. The working method of the prototype of the definitive testimonies regarding the lost speech (Athenaeus and Pseudo-Plutarch, see fr. 177) and the role of Idomeneus as the biographer, had been confirmed by Radermacher in 1907, while the fictitious character of the famous anecdote of the tearing off of the clothes was discussed by Lipsius in 1912.3 The almost hypercritical attitude questioning everything—a counterweight to Raubitschek’s conservative position, published in the Reallexikon entry on Phryne, which was too unquestioning towards the sources—extended to almost all elements of the literary tradition surrounding the speech in the late 20th century. In this connection, one could argue somewhat pointedly that if Pseudo-Longinus and Quintilian had not briefly praised the speech (App. de causa) as authoritative ancient witnesses, and Quintilian had not quoted M. Valerius Messala Corvinus’ virtuoso Latin translation of it (App. fr. 185), the Phryne speech would rival, in terms of verisimilitude, Alciphron’s fictitious love letters involving Hyperides (frr. 183 and 184). It could easily be “proved” that it was merely a school exercise.4 Most recently, Cooper’s critical assertions have been considerably nuanced first by Cavallini’s (perhaps a little too accepting, but nevertheless extremely effective and intratextually most convincing), and subsequently by Kapparis’ moderate and objective analyses and summaries. This paper is the result of my background work for the new critical edition. It does not aim to present and contrast in detail the various positions in the literature. In short, I fully agree with Kapparis’ summary assertions, with regard both to the outcome of Cooper’s detailed source criticism and to the background and starting point of the trial, as nuanced by McClure, but most of all by Cavallini. In fact, the case against Phryne did not stem from the jealousy of the accuser or from the blasphemy of the accused in the strict sense of the word (impiety), but from the hetaira’s extravagant lifestyle, which had been pushing social boundaries (even amounting, perhaps, to a political attack on Hyperides, who was defending her).5 This was very similar to the trumped-up charges and proceedings against

3

Radermacher 1907, 302–303; Lipsius 1905-1915, 920 n. 76. Filonik 2013, 66 eventually concludes that the speech is authentic but the tradition surrounding it is a forgery. Cf. Kapparis 2020, 69. 5 Cooper 1995, 306 n. 10; McClure 2003, 133; Filonik 2013, 66; Cavallini 2014, 143. 4

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Socrates.6 On the other hand, the legends and anecdotes surrounding the trial may have been influenced by Hellenistic biography, although it is impossible to ascertain the extent to which this fiction reflects real events.7 In what follows, I shall merely add a few comments and considerations to the findings in the literature on the type of the lawsuit and the two cornerstones of the tradition surrounding the speech; i.e. whether there was a love affair between Hyperides and Phryne, and whether the speaker did tear off Phryne’s dress at the end of his speech (whether this was indeed the ultima ratio or ultimate evidence). The treatise in the ȉȑȤȞȘ ૧ȘIJȠȡȚțȒ attributed to Neocles in Anonymus Seguerianus (215), published by Spengel, and more recently by Dilts and Kennedy, contains the accusations made against Phryne by Euthias (App. de causa): țĮIJ੹ ȝ੻Ȟ Ƞ੣Ȟ ਫ਼ʌંșİıȚȞ ਕȞĮțİijĮȜĮ઀ȦıȚȢ Ȗ઀ȞİIJĮȚ, ੖IJĮȞ Į੝IJ੹ IJ੹ IJ੽Ȟ ਫ਼ʌંșİıȚȞ ʌİʌȠȚȘțંIJĮ ȥȚȜ૵Ȣ ਥțIJȚșઆȝİșĮ, ȠੈȠȞ ਕıİȕİ઀ĮȢ țȡȚȞȠȝ੼ȞȘ ਲ ĭȡ઄ȞȘǜ·țĮ੿ Ȗ੹ȡ ਥțઆȝĮıİȞ ਥȞ ȁȣțİ઀૳ țĮ੿ țĮȚȞઁȞ İੁı੾ȖĮȖİ șİઁȞ țĮ੿ șȚ੺ıȠȣȢ ਕȞįȡ૵Ȟ țĮ੿ ȖȣȞĮȚț૵Ȟ ıȣȞ੾ȖĮȖİȞǜ·‘ਥʌ੼įİȚȟĮ IJȠ઀ȞȣȞ ਫ਼ȝ૙Ȟ ਕıİȕો ĭȡ઄ȞȘȞ, țȦȝ੺ıĮıĮȞ ਕȞĮȚį૵Ȣ, țĮȚȞȠ૨ șİȠ૨ İੁıȘȖ੾IJȡȚĮȞ, șȚ੺ıȠȣȢ ਕȞįȡ૵Ȟ ਥțș੼ıȝȠȣȢ țĮ੿ ȖȣȞĮȚț૵Ȟ ıȣȞĮȖĮȖȠ૨ıĮȞ’. ȥȚȜ੹ Ȗ੹ȡ Ȟ૨Ȟ IJ੹ ʌȡ੺ȖȝĮIJĮ įȚȘȖİ૙IJĮȚ. Repetition by cause is when the elements that form the basis of the case are listed purely. “Phryne is on trial for impiety, because she was carousing in the Lyceum and introduced a new god, and put together groups of men and women. ‘I have demonstrated to you that Phryne is impious, and that she was shamelessly carousing, and introduced a new deity, and gathered together illicit groups of men and women.’ At this point he is only providing the mere facts of the case. (trans. Kapparis 2017, 259)

The other late sources that name or refer to the type of the lawsuit invariably describe ਕıİȕİȓĮ (impiety) proceedings. Thus, Alciphron 4.3; Choricius 29.2.45, 29.2.76; Eustathius Com. Il. 4.579. The two main sources drawing from the biographical tradition are Athenaeus 13.590d (App. frr. 176 and 183) (mentioning the threat of capital punishment: țȡȚȞȠȝ੼ȞȘ į੻ ਫ਼ʌઁ Ǽ੝ș઀Ƞȣ IJ੽Ȟ ਥʌ੿ șĮȞ੺IJ૳ ਕʌ੼ijȣȖİȞ) and Pseudo-Plutarch Vit. X or. 849e (App. fr. 176) (mentioning sacrilege: IJૌ ਦIJĮ઀ȡ઺ ਕıİȕİ૙Ȟ țȡȚȞȠȝ੼Ȟૉ). However, as Cavallini and others have pointed out, these reports must be treated with great caution, especially because of their late date.8 And not only for that 6

On the similarities of the Socrates trial, see Cooper 1995, 305 n. 9. Kapparis 2017, 260; 2020, 70-71; 2021, 76-82; McClure 2003, 133; Cavallini 2014, 143; and Cooper 1995, 308 et passim, respectively. 8 Cavallini 2014, 142. 7

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reason, but also because “the charge of impiety was an ਕȖઅȞ IJȚȝȘIJȩȢ, in which the penalty was not prescribed by law but was determined by a second vote”.9 Moreover, the account closest in time to the events and the trial is the passage from Posidippus’ comedy Ephesia (fr. 12), which describes the famous final scene of the trial, also crucial in terms of the denudation, and mentions the avoidance of the death penalty (įȚ੼ıȦıİ IJ੽Ȟ ȥȣȤ੽Ȟ ȝંȜȚȢ). In the letters of Alciphron, the editors of the first editions of the text had already detected the use of expressions borrowed or adopted from Hyperides’ defence (App. fr. 184): İੁ Ȗ੹ȡ ĮੁIJȠ૨ıĮȚ ʌĮȡ੹ IJ૵Ȟ ਥȡĮıIJ૵Ȟ ਕȡȖȪȡȚȠȞ Ƞ੝ IJȣȖȤȐȞȠȝİȞ ਲ਼ IJȠ૙Ȣ įȚįȠ૨ıȚȞ Įੂ IJȣȖȤȐȞȠȣıĮȚ ਕıİȕİȓĮȢ țȡȚșȘıȩȝİșĮ, ʌİʌĮ૨ıșĮȚ țȡİ૙IJIJȠȞ ਲȝ૙Ȟ IJȠ૨ ȕȓȠȣ IJȠȪIJȠȣ țĮ੿ ȝȘțȑIJȚ ਩ȤİȚȞ ʌȡȐȖȝĮIJĮ ȝȘį੻ IJȠ૙Ȣ ੒ȝȚȜȠ૨ıȚ ʌĮȡȑȤİȚȞ. For if we don’t get any money from our lovers when we ask for it, or if we who get money are going to be condemned for impiety by the ones who give it, then we might as well put an end to this lifestyle and no longer have trouble or cause trouble for our companions. (Alciphron 4.3, trans. Granholm)

and țਕțİ૙ȞȠȢ ਦIJĮȓȡĮȞ ਩ȤİȚ ਕȟȓĮȞ ਦĮȣIJȠ૨ țĮ੿ ıઃ ਥȡĮıIJ੽Ȟ ıȠ੿ ʌȡȑʌȠȞIJĮ. Į੅IJȘıȩȞ IJȚ ʌĮȡ’ Į੝IJȠ૨, țĮ੿ ੕ȥİȚ ıİĮȣIJ੽Ȟ ਲ਼ IJ੹ ȞİȫȡȚĮ ਥȝʌİʌȡȘțȣ૙ĮȞ ਲ਼ IJȠઃȢ ȞȩȝȠȣȢ țĮIJĮȜȪȠȣıĮȞ. However, he has a mistress worthy of himself and you have a lover who suits you. Ask him for something, and you’ll see that you’ve set fire to the docks or are dissolving the laws. (Alciphron 4.5, trans. Granholm).

The unmistakably light-hearted and witty phrasing of Hyperides, whose wit is, in my opinion, substantially akin to his other speeches, mocks the actual accuser. I fully agree with Cooper’s observations, namely that Hyperides uses the devices he has employed in his speeches in defence of Lycophron and Euxenippus potentially to discredit, and here specifically to ridicule, the accuser, Euthias, whom he portrays as a hopeless, jealous lover: since Phryne has attacked him for not paying her the price of her services, he has sued her for treason. Hyperides, on the other hand, certainly highlights the true spirit of the İੁıĮȖȖİȜȓĮ law and shows its petty abuses.10 The text of the İੁıĮȖȖİȜȓĮ law is known from none other than Hyperides (Hyp. Eux. 8). 9

Citation from Cooper 1995, 306 n. 9; cf. Kapparis 2017, 261. Cooper 1995, 310-311.

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The marked influence of the text of the law on Alciphron’s letter, certainly owing to the defence of Phryne, can hardly be explained by anything but the fact that the type of accusation was İੁıĮȖȖİȜȓĮ, a one-off vote with the prospect of the death penalty. The appearance in the Alciphron letters (and elsewhere) of expressions referring to impiety does not point so strongly in the direction of the ਕıİȕİȓĮ lawsuit type, which could easily have been introduced both in the letter and in the speech through Phryne’s notorious tendency to nakedness evidently attacked in the accusation, which declared it impious. Conversely, however, the phrase “firing the docks and overthrowing the constitution” (IJ੹ ȞİȫȡȚĮ ਥȝʌİʌȡȘțȣ૙ĮȞ ਲ਼ IJȠઃȢ ȞȩȝȠȣȢ țĮIJĮȜȪȠȣıĮȞ) could hardly have been included as an incidental element in the defence at an ਕıİȕİȓĮ trial, where there was less room for such accusations or their dismissal, but far more in an İੁıĮȖȖİȜȓĮ trial.11 I agree with Cooper insofar as the same scenario might almost have been the blueprint for the prosecution and the defence as that followed in the adultery trial (İੁıĮȖȖİȜȓĮ) of Lycophron. Euthias described Phryne’s notorious acts as impious and presented them as a subversion of the constitutional order, while Hyperides, poking fun at the accuser, replied that these actions had nothing to do with treason or the spirit of İੁıĮȖȖİȜȓĮ. I think that, contrary to other details, the late tradition on the Phryne case has not (on the question of the type of lawsuit) complicated or over embellished but simplified the facts. Instead of the (also) originally irrelevant İੁıĮȖȖİȜȓĮ, whose contents could only be summarised in a roundabout way, the Phryne legend, the “ਕıİȕİȓĮ procedure”, was used to refer to the easily comprehensible “essence”, breaking away from the legal complications. To use a concept from textual criticism, we should apply mutatis mutandis the principle of traditio difficilior and assume that the İੁıĮȖȖİȜȓĮ procedure should be posited as the original type of the lawsuit, more difficult to conceive in later times.12 In what follows, I shall first examine that part of the literary tradition on the speech which discusses whether Hyperides was a lover of Phryne. The truth is clearly not to be known, and it may seem fair to say that any answer would be of limited literary significance. Still, the revelation may well nuance Hyperides’ argumentative strategy, his deft use of tone, his often astonishing and wry style, as well as the artistic ingenuity of Alciphron, the 11 As Cooper 1995, 311 n. 23 puts it: “There is the problem of whether Phryne was charged under a ȖȡĮij੽ ਕıİȕİȓĮȢ or İੁıĮȖȖİȜȓĮ”. On the literature regarding the relevant Athenian jurisprudence, see Cooper 1995, who finally leaves the question open. 12 According to Phillips 2013, 458, the Alciphron testimony “strongly suggested” that the procedure was İੁıĮȖȖİȜȓĮ. See also Kapparis 2017, 261 for ȖȡĮij੽ ਕıİȕİ઀ĮȢ.

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Sophistic letter writer. Cooper’s duly critical philological view is that the love triangle between Hyperides, Euthias and the object of their love, Phryne, the hetaira, is pure fantasy. This anecdote also originates from Idomeneus, the author of a separate treatise on the Athenian demagogues, who was peculiarly motivated to demonstrate, by means of juicy examples, that each and every public figure he portrayed was unbridled in love. Cooper convincingly argues that Idomeneus’ falsifications can in some cases be detected beyond doubt (such as the claim about Demosthenes, who is said to have knocked out an eye of his rival out of jealousy, which may have been the result of a misreading of Aeschines’ text). Idomeneus mentions Aspasia alongside Pericles, just like Phryne alongside Hyperides. The biographer may also have misunderstood something about Phryne in the text of Hyperides’ speech, quoted from Syrianus (see below), and rounded out the love circle from that. Later on, following Idomeneus, everyone went awry: not only Athenaeus, but also Alciphron, and even Syrianus himself, who wrote commentaries on Hermogenes.13 As well founded as the arguments about the biographers’ inventions may be, however, I think that questioning even this element of the tradition is going too far.14 The love affair between Hyperides and Phryne is supported both by philological arguments and by the rhetorical features that characterize Hyperides and form the essence of his speeches. On this point, too, the two testimonies from which we depart are the same, firstly Pseudo-Plutarch Vita X or. 849e: ੪ȝȚȜȘțઅȢ į੻ țĮȓ ĭȡ઄Ȟૉ IJૌ ਦIJĮ઀ȡ઺ ਕıİȕİ૙Ȟ țȡȚȞȠȝ੼Ȟૉ ıȣȞİȟȘIJ੺ıșȘǜ Į੝IJઁȢ Ȗ੹ȡ IJȠ૨IJȠ ਥȞ ਕȡȤૌ IJȠ૨ ȜંȖȠȣ įȘȜȠ૙. It was because he had been intimate also with Phryne the courtesan that when she was on trial for impiety he became her advocate; for he makes this plain himself at the beginning of his speech. (trans. Cooper)

And, probably going back to the same source, Athenaeus 13.590d: ૽Ȋʌİȡİ઀įȘȢ į’ ੒ ૧੾IJȦȡ ਥț IJોȢ ʌĮIJȡ૴ĮȢ Ƞੁț઀ĮȢ IJઁȞ ȣੂઁȞ ਕʌȠȕĮȜઅȞ īȜĮ઄țȚʌʌȠȞ Ȃȣȡȡ઀ȞȘȞ IJ੽Ȟ ʌȠȜȣIJİȜİıIJ੺IJȘȞ ਦIJĮ઀ȡĮȞ ਕȞ੼ȜĮȕİ, țĮ੿ IJĮ઄IJȘȞ ȝ੻Ȟ ਥȞ ਙıIJİȚ İੇȤİȞ, ਥȞ ȆİȚȡĮȚİ૙ į੻ ૅǹȡȚıIJĮȖંȡĮȞ, ĭ઀ȜĮȞ į’ ਥȞ ૅǼȜİȣı૙ȞȚ, ਴Ȟ ʌȠȜȜ૵Ȟ ੩ȞȘı੺ȝİȞȠȢ ȤȡȘȝ੺IJȦȞ İੇȤİȞ ਥȜİȣșİȡઆıĮȢ, ੢ıIJİȡȠȞ į੻ țĮ੿ 13

Cooper 1995, 309-310. The question of the love affair between Hyperides and Phryne is touched on, but not questioned, in Cavallini 2014, 140; Eidinow 2016, 26; Kapparis 2017, 259. Questioned, if anything, in McClure 2003, 133. 14

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Chapter 15 ȠੁțȠȣȡઁȞ Į੝IJ੽Ȟ ਥʌȠȚ੾ıĮIJȠ, ੪Ȣ ૅǿįȠȝİȞİઃȢ ੂıIJȠȡİ૙. ਥȞ į੻ IJ૶ ਫ਼ʌ੻ȡ ĭȡ઄ȞȘȢ ȜંȖ૳ ૽Ȋʌİȡİ઀įȘȢ ੒ȝȠȜȠȖ૵Ȟ ਥȡ઼Ȟ IJોȢ ȖȣȞĮȚțઁȢ țĮ੿ Ƞ੝į੼ʌȦ IJȠ૨ ਩ȡȦIJȠȢ ਕʌȘȜȜĮȖȝ੼ȞȠȢ IJ੽Ȟ ʌȡȠİȚȡȘȝ੼ȞȘȞ Ȃȣȡȡ઀ȞȘȞ İੁȢ IJ੽Ȟ Ƞੁț઀ĮȞ İੁı੾ȖĮȖİȞ. (App. fr. 176) The orator Hyperides threw his son Glaucippus out of their ancestral home and took up with the extremely expensive courtesan Myrrhine. He kept her in the city; Aristagora in the Piraeus; and Phila [a woman he had purchased for a large sum of money and then set free, and whom he had later made his housekeeper] in Eleusis, according to Idomeneus. In his speech On Behalf of Phryne, Hyperides admits that he was in love with her and had by no means escaped these feelings when he moved the Myrrhine mentioned above into his house. (trans. S. Douglas Olson)

Athenaeus’ phrasing clearly suggests that the author’s source (Idomeneus or someone else from the rich array of named references) took the statement directly from the speech. This means that Hyperides not only said that he loved Phryne (the infinitive in the accusativus cum infinitivo [ਥȡ઼Ȟ] in classical usage stands for continuous present), but also added that his love for her had not yet petered out when he took Myrrhine to his house. Myrrhine’s figurative or real entry certainly stirred the biographical imagination later on and led to the figure of Hyperides keeping several hetairai simultaneously, but why and, above all, how could Idomeneus have invented by himself that Hyperides had spoken of his not dwindling affection for Phryne in the speech, even in connection with Myrrhine? On the other hand, it is a fact that the key expression in Pseudo-Plutarch’s testimony is the result of a modern textual correction: ੪ȝȚȜȘțȫȢ. Yet, accepting Jensen’s opinion in the apparatus (ita Į੝IJઁȢ Ȗ੹ȡ țIJਦ. referuntur ad ੪ȝȚȜȘțȫȢ, see App. 176), I myself understand the phrase “He himself declares this at the beginning of his speech” to refer to the love affair and its confession.15 It is difficult to question the authenticity of this formulation, even if we assume Idomeneus or Hermippus to have been the source.16

15

Cooper 1995, 309 n. 18 lays out the textual variants and settles on this one as the most likely emendation. 16 On the basis of the clear references in the testimonies, Cooper 1995, 304 derives the statements concerning Phryne’s trial indirectly from Idomeneus of Lampsacus and from Hermippus, who directly drew from him. A new papyrus reading from Herculaneum, however, provides further evidence of Hermippus’ activity and its thoroughness in extracting Hyperides’ speeches. Thanks to Fleischer’s (2018) superb decipherment, the analysed Philodemus papyrus contains some 12 lines of text taken from Hermippus, in which the biographer directly quotes and paraphrases from Hyperides’ (perhaps hitherto) unknown speech on the philosopher-turned-

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Similar conclusions can be drawn from the testimony of Syrianus (App. fr. 177). The authority on oratory, in explaining Hermogenes, looks for an example and then finds one for the “drawing an equation” figure of thought: ૽Ȋʌİȡİ઀įȘȢ į੻ ʌ੺ȜȚȞ ਥȞ IJ૶ ਫ਼ʌ੻ȡ ĭȡ઄ȞȘȢ ਥȟȚı੺ȗȠȞIJȠȢ IJȠ૨ ੖IJȚ Į੝IJંȢ IJİ țĮ੿ Ǽ੝ș઀ĮȢ ੪ȝȚȜȘțંIJİȢ ਷ıĮȞ IJૌ ĭȡ઄Ȟૉ … ਕȞĮș੼ȞIJȦȞ ૽ǼȜȜ੾ȞȦȞ ਥȞ ǻİȜijȠ૙Ȣ Į੝IJોȢ İੁțંȞĮ țĮ੿ ਥʌȚȖȡĮȥ੺ȞIJȦȞ ‘ĭȡ઄ȞȘ ૅǼʌȚțȜ੼ȠȣȢ ĬİıʌȚț੾’ Ȁȡ੺IJȘȢ ੒ ț઄ȦȞ ਫ਼ʌ੼ȖȡĮȥİȞ ‘ਥț IJોȢ IJ૵Ȟ ૽ǼȜȜ੾ȞȦȞ ਕțȡĮı઀ĮȢ’ – ૽Ȋʌİȡİ઀įȘȢ Ƞ੣Ȟ ੒ ૧੾IJȦȡ ਥȞ IJ૶ ਫ਼ʌ੻ȡ Į੝IJોȢ ȜંȖ૳ İਫ਼ȡઆȞ IJȚȞĮ įȚĮijȠȡ੹Ȟ ਩ijȣȖİ IJઁ ਥȟȚı੺ȗȠȞ ij੾ıĮȢ ‘Ƞ੝ Ȗ੹ȡ ੖ȝȠȚંȞ ਥıIJȚ IJઁȞ ȝ੻Ȟ ੖ʌȦȢ ıȦș੾ıİIJĮȚ ਥț ʌĮȞIJઁȢ IJȡંʌȠȣ ȗȘIJİ૙Ȟ, IJઁȞ į੻ ੖ʌȦȢ ਕʌȠȜ੼ıİȚİȞ.’ And again Hyperides in the speech in defence of Phryne. When somebody identified him with Euthias as both having been intimate with Phryne…; when the Greeks erected a statue for her and carved on it: ‘Phryne of Thespiae, daughter of Epicles,’ Crates, the Cynical philosopher wrote underneath: ‘from the intemperance of the Greeks’ – Hyperides the orator finds in his speech about her some difference to avoid the identification saying, ‘for it is not the same thing for one to try to save her by every possible means and for the other to destroy her.

Cooper assumes, in connection with the very phrase from Hyperides quoted here, that it was misinterpreted by Idomeneus and then, through Hermippus, rounded out into a love triangle, although it is not at all certain that the phrase referred to a love affair.17 In my opinion, however, it is clear that Syrianus is talking about the love-related “common denominator” which links the accuser and the defender. It is hardly convincing to question the credibility of the testimony by saying that the digression mentioning Crates shows the presence of the biographical tradition in the testimony, and to conclude that this led Syrianus to misunderstand the quoted sentence of the speech.18 This example taken from Hyperides, however, in contrast with the extra orationem effect of the tearing off of clothes, does not occur elsewhere in the oratorical literature. In my opinion, the quotation was probably collected and used by Syrianus himself, either from his own readings or from an exemplar of oratory. If Syrianus’ credibility can be undermined in this way, Alciphron’s literary letters carry even less weight. And yet, as I hinted above, Churchill Babington (App. fr. 184) has, in my opinion, rightly assumed that fragments tyrant Chaeron. Fleischer 2018, 36 also praises Hermippus’ thoroughness in his excerpts. For my comments on other findings in the study, see Horváth 2021. 17 Cooper 1995, 310. 18 Cooper 310. For Syrianus’ familiarity with Hyperides, see also Ucciardello 2012, 319f.

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and paraphrases of the speech might be lurking in the wording of the fictitious letters concerning Phryne and Hyperides.19 The text of the letters gives an unadulterated sense of the direct reading experience. The author himself may well have been reading about the characters, and the clearest, most obvious source of the story could have been the speech in Phryne’s defence, access to which is hinted at in a cunning way (4.3): İੁ į੻ į੽ țĮ੿ IJઁȞ ȜȩȖȠȞ ȖȡȐȥĮȚȢ IJઁȞ ਫ਼ʌ੻ȡ IJોȢ ĭȡȪȞȘȢ, IJȩIJİ ਗȞ ੪Ȣ ਕȜȘș૵Ȣ ȤȡȣıȠ૨Ȟ Įੂ ਦIJĮ૙ȡĮȚ ıIJȒıĮȚȝİȞ ੖ʌૉ ʌȠIJ੻ ȕȠȪȜİȚ IJોȢ ਬȜȜȐįȠȢ. If only you would write down the speech you held in Phryne’s defence, then indeed we courtesans would set up a golden statue anywhere you want in Greece. (trans. Granholm)20

To question all this, and thus to regard the Hyperides—Phryne—Euthias love triangle, or at the very least the relationship between Hyperides and Phryne, as mere fantasy, seems tenuous. On the other hand, it feels like an unmistakably upbeat remark worthy of Hyperides that the speaker, to the surprise of the audience, makes an unexpected confession about his relationship with Phryne. Hyperides begins his speech in defence of Euxenippus (already mentioned because of the İੁıĮȖȖİȜȓĮ lawsuit type) with a light, casual turn of phrase: ਝȜȜ’ ਩ȖȦȖİ, ੯ ਙȞįȡİȢ įȚțĮıIJĮȓ, ੖ʌİȡ țĮ੿ ʌȡઁȢ IJȠઃȢ ʌĮȡĮțĮșȘȝȑȞȠȣȢ ਕȡIJȓȦȢ ਩ȜİȖȠȞ, șĮȣȝȐȗȦ, İੁ ȝ੽ ʌȡȠıȓıIJĮȞIJĮȚ ਵįȘ ਫ਼ȝ૙Ȟ Įੂ IJȠȚĮ૨IJĮȚ İੁıĮȖȖİȜȓĮȚ. Personally, gentlemen of the jury, as I was just saying to those seated beside me, I am surprised that you are not tired by now of this kind of impeachment. (trans. J. O. Burtt)

The seemingly voluntary, impromptu upbeat remark is a sympathetic revelation of the common sense shared by the ordinary Athenian judges and the orator. Mutatis mutandis, the same effect may have been intended by the opening of the defence of Phryne: Į੝IJઁȢ Ȗ੹ȡ IJȠ૨IJȠ ਥȞ ਕȡȤૌ IJȠ૨ ȜંȖȠȣ įȘȜȠ૙ (“he himself declares this at the beginning of his speech”). The “selfdisclosure” was, moreover, a shrewd move, since the love thread could have 19 Contra O’Connell 2013, 116, whose hypothesis about the disputed Pollux passage analysed by him has received moderate approval in the literature. Nevertheless, I have also included it among the fragments, see App. fr. 179. 20 The golden statue is also an obvious reference to the statue of Phryne at Delphi, mentioned in Athenaeus’ well known account (Athenaeus 13.591b).

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been a well known fact among the audience. This could be followed by a scourging of Euthias’ farcical foibles, in particular his desire to avenge his disappointment in love on Phryne by way of the fictitious treason trial. There is another, indirect argument that the love affair was not necessarily a biographical invention, but a reality. As in many forensic trials, many people rightly look for a political motive behind the story.21 There are numerous examples to show that the victim, the suffering subject, of a showdown between political opponents was more often than not a friend, a close associate, a supporter of the politician under attack. The most evident parallel is the case of Neaera, accused by Apollodorus and defended by her lover Stephanus. If we assume a political attack on Hyperides, we can ask the next question: why was Phryne’s person important to the speaker? The most striking element in the literary tradition regarding the speech is the idea that Hyperides, sensing the ineffectiveness of his address and arguments, would have torn off Phryne’s outer garment and convinced the judges of her innocence by the sight of the naked woman.22 As mentioned above, the scene was already considered by Lipsius to be a biographical invention.23 The basis of the colourful story, according to the almost complete consensus philologorum, is to be found, on the one hand, in the dramatic (comic and tragic) foreshadowing and, on the other, in the pityinducing pleas of the accused at the end of the speeches.24 In fact, Phryne’s plea—and the orator’s customary concluding words in connection with it— which made a pathetic (?) spectacle, may have been embellished by the later biographers Hermippus and Idomeneus.25 In the hands of scholars, however,

21 See Cavallini 2014, 141; also n. 5 above, esp. Filonik 2013, 66. A political showdown may be indicated by the fact that Hyperides called Euthias a sycophant (App. fr. 181), although such a thing could have happened without any particular political strife. On the other hand, however, Hyperides’ political opponent Aristogeiton, who sued the orator after the battle of Chaeronea (Ps. Plut. Vita X. or. 849a), also accused Phryne (Athenaeus 13.591e: ૅǹȡȚıIJȠȖİ઀IJȦȞ į੻ ਥȞ IJ૶ țĮIJ੹ ĭȡ઄ȞȘȢ IJઁ ț઄ȡȚંȞ ijȘıȚȞ Į੝IJોȢ İੇȞĮȚ ੕ȞȠȝĮ ȂȞȘıĮȡ੼IJȘȞ). 22 Athenaeus 13.590e. 23 See n. 3 above. 24 See Filonik 2013, 65; Cavallini 2014, 146. O’Connell, in his recent book (2017, 1-2 and 51), considers the scene credible. Cooper 1995, 312 finds the biographical bias of Idomeneus once again in the misunderstanding of Hyperides’ lost speech. Kapparis 2020, 71 considers the question of the authenticity of the scene to be undecidable. 25 This may have been due partly to the widespread tradition that Praxiteles modelled the statues of Aphrodite and others in Cnidus on Phryne: McClure 2003, 128-129

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the decisive argument is merely an argumentum ex silentio. The first testimony referring to Phryne’s trial, written around 290—the abovementioned passage from Posidippus’ comedy Ephesia (fr. 12)—although describing Phryne’s influence, is silent on the subject of nudity and the tearing off of her clothing. Yet, it is precisely this moment of which the spectator or reader might expect to see a truly comic elaboration—at least, if it really happened.26 What Posidippus’ testimony clearly confirms, however, is that the arousal of pity through the actions of the accused, and her pleading, could indeed have happened. The sympathetic appearance, the clothing torn as a sign of pain, self-pity and grief or, alternatively, as evidence of the toil undertaken for the country (revealing wounds), the neglected appearance, could all have been a common part of the extra orationem argumentation accompanying the closing words, as already noted by Kowalski and many others after him, and amply supported by literary parallels.27 It is therefore a scholarly commonplace that Phryne’s dress was not torn by Hyperides, however much the scene, with the help of biographers, has become a source of inspiration for the vivid imagination of artists from Alciphron to JeanLéon Gér‫۾‬me to modern cinema.28 It is safe to assume, however, that Hyperides must have been consciously building on the impact that he expected Phryne’s pathetic, presumably battered (?) appearance to have. For and 133-134; or the legend that she appeared naked before everyone at the feasts of Eleusis and Posidonia: Raubitschek 1941, 906. 26 ĭȡ઄ȞȘ ʌȡȩ ‫ޒ‬Ȗ’‫ ޓ‬ਲȝ૵Ȟ Ȗ੼ȖȠȞİȞ ਥʌȚijĮȞİıIJ੺IJȘ / ʌȠȜઃ IJ૵Ȟ ਦIJĮȚȡ૵Ȟ țĮ੿ Ȗ੹ȡ İੁ ȞİȦIJ੼ȡĮ / IJ૵Ȟ IJંIJİ ȤȡંȞȦȞ İੇ, IJંȞ Ȗ’ ਕȖ૵Ȟ’ ਕț੾țȠĮȢ. / ȕȜ੺ʌIJİȚȞ įȠțȠ૨ıĮ IJȠઃȢ ȕ઀ȠȣȢ ȝİ઀ȗȠȣȢ ȕȜ੺ȕĮȢ / IJ੽Ȟ ਱ȜȚĮ઀ĮȞ İੈȜİ ʌİȡ੿ IJȠ૨ ıઆȝĮIJȠȢ / țĮ੿ IJ૵Ȟ įȚțĮıIJ૵Ȟ țĮș’ ਪȞĮ įİȟȚȠȣȝ੼ȞȘ / ȝİIJ੹ įĮțȡ઄ȦȞ įȚ੼ıȦıİ IJ੽Ȟ ȥȣȤ੽Ȟ ȝંȜȚȢ (“Phryne was once the most illustrious of us courtesans by far. / And even though you (female) are too young / to remember that time, you must at least have heard of the trial. / Although seeming to have wrought too great injury to men’s lives, / she nevertheless conquered the court with regard to her life, / and clasping the hands of the jurors one by one / with tears she saved her life at last”, trans. McClure). See Cooper 1995, 314-315. Cavallini 2014, 146-148 argues that Posidippus is in fact suggesting that Phryne won the judges over with her body, namely her naked beauty. He believes that Posidippus was seeking to emulate Euripides’ Andromache (284ff. and 289ff.). On the other hand, the “nude scene” was probably already part of the tradition around 270, because in Herodas’ second mimiambus, a brothel-keeper (a certain Battarus), parodying the style of Attic orators, condemns his violent client who has assaulted one of the girls. In his argument, he shows the girl’s naked body as evidence. It is widely believed that this could be a parody of Hyperides’ speech. Cf. Cooper 1995, 315. 27 Kowalski 1947, 53. 28 See Cavallini 2010, passim.

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there can be no doubt of her radiant beauty, even if we must treat with strong scepticism the notion that she could have been the model for both Apelles and Praxiteles. Raubitschek is probably right that in Athenaeus’ summary the pithy expression IJ੽Ȟ ਫ਼ʌȠijોIJȚȞ țĮ੿ ȗ੺țȠȡȠȞ ૅǹijȡȠį઀IJȘȢ (“Aphrodite’s priestess and maid”), though it cannot be proved to be a literal quotation, may be a strong allusion to Hyperides’ speech.29 Along with scholars who have made similar conjectures, I myself am inclined to think that Hyperides used Phryne’s beauty quite evidently as an effective weapon.30 If this was not the ultima ratio par excellence, it was a good reinforcement of the other, carefully prepared devices. As a conclusion of sorts, it is worth recalling the testimony of PseudoLonginus (34.3, App. de causa). Analysing the style of Demosthenes, the ancient aesthete says: ਩ȞșĮ ȝȑȞIJȠȚ ȖİȜȠ૙ȠȢ İੇȞĮȚ ȕȚȐȗİIJĮȚ țĮ੿ ਕıIJİ૙ȠȢ Ƞ੝ ȖȑȜȦIJĮ țȚȞİ૙ ȝ઼ȜȜȠȞ ਲ਼ țĮIJĮȖİȜ઼IJĮȚ, ੖IJĮȞ į੻ ਥȖȖȓȗİȚȞ șȑȜૉ IJ૶ ਥʌȓȤĮȡȚȢ İੇȞĮȚ, IJȩIJİ ʌȜȑȠȞ ਕijȓıIJĮIJĮȚ. IJȩ Ȗȑ IJȠȚ ʌİȡ੿ ĭȡȪȞȘȢ ਲ਼ ਝșȘȞȠȖȑȞȠȣȢ ȜȠȖȓįȚȠȞ ਥʌȚȤİȚȡȒıĮȢ ȖȡȐijİȚȞ ਩IJȚ ȝ઼ȜȜȠȞ ਗȞ ੥ʌİȡİȓįȘȞ ıȣȞȑıIJȘıİȞ. When he is forced into attempting a jest or a witty passage, he rather raises the laugh against himself; and when he tries to approximate charm, he is farther from it than ever. If he had tried to write the little speech on Phryne or Athenogenes, he would have been an ever better advertisement for Hyperides. (trans. W. H. Fyfe and D. Russell)

The juxtaposition of the Athenogenes and Phryne speeches may also refer to the use of lightly (ȜȠȖȓįȚȠȞ) theatrical, dramatic elements typical of both speeches. The speech of Athenogenes is almost a prose transcription of the New Comedy (but the use of dramatic elements could also be seen in Hyperides’ speech against Timandrus).31 In the Phryne “sujet” we can also assume a number of comic characters and scenes, not only the hetaira and the heroic lover, but also the deserted paramour. Not to mention the possible nuances of the pity-inducing act typical of tragic heroines, which we will never know. Hyperides’ real ultima ratio in argument and persuasion was the use of theatrical elements that were entertaining, immediately accessible to the audience and recognizable either consciously or unconsciously—but always within the limits of the oratorical genre.

29

Raubitschek 1941, 906. See O’Connell 2013, 113. 31 Cf. Horváth 2007, 2019. 30

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CHAPTER 16 PROOF, TRUTH AND JUSTICE IN THE EPILOGOI OF ATTIC FORENSIC SPEECHES CHRISTOS KREMMYDAS

1. Introduction The epilogos has not attracted much attention from modern scholarship on Greek rhetoric and oratory.1 Ancient rhetorical theory on arrangement defined its key objective as “to remind the audience what has been said” (Anaximenes, Rh. Al. 38.10, 1446a) and identified its four key parts: i) to dispose the hearer favourably towards oneself and unfavourably towards the adversary; ii) to amplify and depreciate; iii) to excite the emotions of the hearer; iv) to recapitulate (Arist. Rh. 3.19.1, 1419b, trans. Kennedy). Aristotle goes on to refer his readers to commonplaces appropriate to each of these functions that he had presented earlier in the Rhetoric. Few people would take issue with Anaximenes and Aristotle’s brief discussion of the functions of the epilogos. However, as is often the case with Greek rhetoricians, rhetorical theory does not fully match oratorical practice.2 Aristotle stresses, for instance, that the epilogos is not merely 1 Usher 1999, 25-26 discusses the epilogos in general terms; he also includes brief discussions of the functions of epilogoi in many of the speeches of the corpus (especially recapitulation) with a special focus on the development of rhetorical structures through the classical period; Steel 2009, 77-91; de Brauw 2007, 190 notes that “even in the fourth century, speeches that divide neatly into four parts are fewer than those that do not”. He also shows awareness that the differentiation of the commonplaces deployed in the epilogos depends on whether the speech was delivered for the prosecution or the defence: “the epilogue tends to be thick with commonplaces, which differ somewhat according to whether the speech is for the prosecution or the defense” (p. 197). 2 In a similar vein, de Brauw 2007, 198 remarks that “epilogues in oratory differ

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about repetition of facts; rather, he stresses the importance of proofs. Not only does the epilogos build on facts established earlier in the speech, but “in the epilogue we should give a summary statement of the proofs”, so that it is not just about recapitulation and repetition. He also states that the amplification (or deprecation) of the opponent’s character in the epilogos follows up on the demonstration of the speaker’s truthfulness and the adversary’s mendacity (Rh. 3.19.1-2, 1419b). One does in fact encounter references to the speaker’s truthfulness and occasionally to the opponent’s mendacity in extant forensic epilogoi, but these notions are deployed less frequently than one might expect.3 More often, there are references to different kinds of evidence presented as (nontechnical) means of proof earlier in the speech (witness depositions, challenges to torture, laws) or, less frequently at the very end of the speech, thus making a stronger impression on the dikastai. Occasionally, appeals to proofs presented are generic (i.e. that the speaker has presented adequate proofs). Finally, most forensic epilogoi deploy an appeal to the judges to judge in accordance with what is just (kata to dikaion). These notions appear essential to the rhetorical objectives of the epilogos, as they help demonstrate to the judges that a speaker’s task had been performed and to remind them of their duty to judge in accordance with the law and the notion of justice. In this chapter I first discuss some key methodological issues relating to extant forensic epilogoi. I then consider the role played by references to non-technical proofs4 as well as to the concepts of truth (aletheia) and justice (to dikaion) in the epilogoi. I examine the ways in which these specific notions interface with other functions that epilogoi might be performing in any given speech (e.g. stirring the emotions of the audience, amplifying the case of the speaker or undermining that of the opponent, and engendering goodwill and/or ill will for the speaker and his opponent respectively). I demonstrate that whilst appeals to the concept of justice (to dikaion) are seen as essential to most extant speeches, there are exceptions that might be explained through the rhetorical and legal context of the from theorists’ descriptions in a number of ways” and briefly identifies a number of ways in which the theorists fail to reflect on rhetorical practice, including the reading out of witness depositions as a means of enhancing the speech’s authority. 3 See, e.g., Kremmydas 2013a, 80-86 for the way in which contextual factors affect the deployment of expressions relating to deception. 4 I take “proof” to denote various non-technical means of proof (atechnoi pisteis) such as martyriai and nomoi, but also verbs denoting “to demonstrate” or “to prove” (e.g. ਕʌȠįİȓțȞȣȝȚ, ਥʌȚįİȓțȞȣȝȚ, įİȓțȞȣȝȚ but also įȚįȐıțȦ [“to instruct”, “to teach”]), which tend to appear at the start of the epilogoi.

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speeches in question. A close contextual analysis might also help explain the combined use of all or only some of these three notions in other forensic contexts: their operation in speeches delivered in public and private cases or cases that transcend the public-private divide, in prosecution or defence speeches, the possible role played by the order of speech in synegoriai, and the precise type of suit in which a speech was delivered (e.g. in private action for false witnessing) are contextual factors that might explain how these notions would have been used in the epilogoi. While one might be tempted to dismiss references to the notions of truth and justice as mere epilogic commonplaces, an in-depth examination of extant epilogoi suggests that references to these concepts are far from hackneyed topoi. Although they do not always feature jointly in the epilogoi, an examination of the diverse ways in which they are deployed sheds light on the sophistication of the rhetorical strategies adopted by the speakers and reflects the rhetorical and legal context of the speeches that they were part of.

2. Methodological problems ǹ number of methodological issues regarding the analysis of the extant forensic epilogoi should be highlighted at this point. 1) An epilogos is not necessary in all speeches and, in fact, not all of our extant forensic speeches include one. For example, Isocrates 21 Against Euthynus, a short synegoria in support of Nicias (§2) in an unknown type of dike, appears to have a rather abrupt ending; however, this might be a rhetorical strategy to leave the audience with a negative characterization of the opponent Euthynus. Further typical features of an epilogos, such as an emotional climax and the recapitulation of key points, are missing, but might have featured in the epilogos to another supporting speech for the prosecution. 2) An epilogos is missing in some speeches that break off that section and in fragmentary speeches.5 For instance, in [Dem.] 50 the speech ends rather abruptly with the reading of a witness deposition that purports to demonstrate Polycles’ repeated failure to meet his liturgical obligations (§68). A passage a little earlier in the speech seems to suggest that the epilogos has already started at §63 (if not earlier), whilst the speaker promises to have the clerk read out to the court at least four documents without mentioning in the same context the deposition that he proceeds to have read out. Was the inserted heading “deposition” (ȝĮȡIJȣȡȓĮ, §68) meant 5

E.g. Lys. 25; Dem. 31 (MacDowell 2004, 79 calls the extant speech a “draft … for use in his second speech”).

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to be followed by further headings referring to the other documents that Polycles mentions at §64, yet these were elided during the textual transmission of the speech over two millennia? 3) In the corpus of Attic oratory, some so-called “speeches” are only parts of speeches. Lysias’ speeches 18, 27, 28 and 29 are all identified in the manuscripts as epilogoi. They may represent attempts on the part of well established speechwriters to come up with memorable sections of speeches that could be delivered by their clients in different contexts.6 Might such model epilogoi be what Aristotle had in mind when discussing the epilogos and its functions in Book 3 of his Rhetoric? 4) The identification of epilogoi in the flow of the speeches involves subjective judgments: while it is obvious where an epilogos comes to an end (at least in cases where the manuscript does not break off), its beginning is not always clear-cut.7 This suggests that one should not apply speech divisions too rigidly. 5) The length of epilogoi varies considerably, from one or two sections to several. This may be due to the speakers’ personal stylistic preferences or contextual factors (e.g. the speech might be one of several supporting speeches). In what follows I examine the ways in which the notions of atechnoi pisteis, truthfulness (aletheia) and lawfulness (to dikaion) are deployed in speeches (including supporting ones) delivered for the prosecution and the defence in various public and private cases. As a control group I shall examine epilogoi in forensic speeches delivered in cases that lack a penal aspect: paragraphai, diadikasiai and dokimasiai.

3. Epilogoi in public prosecution speeches In public cases, the graphe (“plaint”, or eisangelia),8 the document on which the formal charge was written, was important in terms of setting out key 6

Cf. also the collection of deliberative prooimia by Demosthenes. Antiphon’s (now lost) works included a collection of prooimia and epilogoi (frr. 68-70 BlassThalheim). 7 E.g. in Dem. 34 the recapitulation of key legal points commences at §43; the speaker seeks to jog the dicastic audience’s memory at §49 and a concluding appeal to them brings the speech to a close. 8 See Harris 2013, 156-157. Enklema, the document where the charge was recorded before the trial, is used mainly in private (prosecution) speeches. This document is read out in Dem. 39.39 just before the epilogos. Cf. the term phasis that represents this official document in the phasis procedure (e.g. Dem. 58.8), and apographe in cases of apographe.

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facts of the case and key lines of argument that would be reflected in the speech delivered during the trial.9 One might thus expect the epilogos to echo the key facts written in the graphe, and indeed even the graphe itself to be read out to the judges in court as part of the epilogos (or just before it). Echoes of the graphe can indeed be found in a few of our extant cases (Dem. 19.8, 333, 23.215), while the graphe itself is read out in Hyperides’ Against Philippides 13 and Lys. Against Alcibiades (14.47). It is likely that, at least in some cases where supporting speakers were involved, the plaint might have been read out again by the last prosecution speaker or the speaker who was entrusted with focusing on legal issues. However, reading out this document either immediately before or at the very end of the epilogos is a rhetorical strategy rarely attested in public prosecution speeches.10 Most speeches incorporate references to other non-technical (atechnoi) means of proof deployed earlier in the speech, whilst performing key epilogic functions. In the very brief epilogos to Aeschines’ Against Timarchus (1.195196)11 the speaker stresses that in his speech he has taught the judges the laws and subjected Timarchus’ life to scrutiny. Despite its brevity Aeschines’ epilogos ticks a number of boxes for rhetorical functions that are compatible with the public character of the suit in which this speech is being delivered (dokimasia tɨn rhetorɨn): i) he is stirring antipathy towards the character of the defendant, Timarchus (§195); ii) he reminds the dikastai that he has deployed laws as key means of non-technical proof; iii) he appeals to the theme of the city’s interest. This latter theme is not a function highlighted by Aristotle in his discussion of epilogoi but is consistent with the public character of this case.12 At the same time, the notion of dikaion is used twice in §196 along with the notion of sympheron, although the wording of the appeal to the dikastai to judge fairly is different from those encountered in other speeches. In Aeschines’ Against Ctesiphon, the epilogos is slightly longer (3.255260) and embeds anticipation of the opposition’s arguments, as well as references to their synegoroi. It is worth noting that the appeal to the laws is not presented directly here either but, instead, is put into the mouth of Solon, the lawgiver, thus enhancing its potential effect on the dikastai. This vivid prosopopoeia is followed by an appeal to the judges to vote for what 9

See Kremmydas 2018. But cf. reference to graphe in [Dem.] 59.125. 11 Carey 2000, 22-23 notes the brevity of the epilogos, but also stresses the fluidity of the boundaries between the different sections of Aeschines’ speech. 12 The notion of sympheron only occurs four times in the speech (§§6, 117, 178, 196). 10

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is “just and advantageous for the polis” (§260). The notions of justice and expediency are combined by Aeschines once again at the end of an important public prosecution speech. As for the non-technical means of proof Aeschines had adduced earlier in the speech, they are not referred to explicitly in the epilogos. Demosthenes’ prosecution speech On the False Embassy (19) concludes (§§341-343) with a focus on what is expedient for the city and the need to make an example of Aeschines. In this epilogos there are no references to the proofs deployed elsewhere in the speech nor is there any reference to to dikaion, although the speech is replete with citations of public documents (decrees, letters, inscriptions) and witness testimonies that promote the reliability and truthfulness of Demosthenes’ lengthy narratives. Further variations in terms of epilogic rhetorical strategies can be identified in other public prosecution speeches by Demosthenes. In Against Leptines, a supporting speech for the prosecution dominated by the argument that Leptines’ law is inappropriate (e.g. §163), considerations of the Athenian civic ethos predominate. Demosthenes’ final appeal to the judges urges them to safeguard and remember what they know to be fair (§167), so that they vote in accordance with the oaths they have sworn and reject those who give bad advice (§167). In Against Meidias, the epilogos is longer than usual (§§184-227) and incorporates the refutation of the opponent’s arguments (§§189-192), a section that one would expect to precede it. There is no doubt, however, that the epilogos as it stands does perform key epilogic functions, including summarizing key points, stirring negative emotions towards Meidias and evoking positive emotions towards Demosthenes. At the very end of the epilogos, there is a call to the judges to cast IJ੽Ȟ ੒ıȓĮȞ țĮ੿ įȚțĮȓĮȞ ... ȥોijȠȞ (§227), but this is preceded by the famous passage on the strength of the laws (§§223-225; cf. 188), which he urges the judges not to betray (§222). The public character of this case is clearly alluded to in the appeals to make an example of Meidias for the sake of the city (§227) and the religious connotations of Meidias’ alleged offence are also played up by Demosthenes. ǹnd although there are no explicit references to non-technical means of proof presented earlier in the speech, there are two indirect references to witnesses: Demosthenes claims that not only his fellow Athenians but also any Greeks visiting Athens at the time had witnessed Meidias’ hybris and the demos heard of his deeds (§217). This speech thus does not forgo the standard references to the concept of dikaion; on the contrary, the judges are called upon to defend the laws and stay true to the oaths they have sworn by punishing Meidias. Finally, the notion of truth (aletheia) does not feature in this epilogos.

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The epilogos to Diodorus’ prosecution speech in the graphe paranomon Against Androtion (§78) is brief and lacks references to the laws, the city’s advantage (sympheron), aletheia or any proofs adduced earlier in the speech.13 It focuses on stirring hostility against Androtion by stressing his impiety. However, a number of issues that reflect the rhetorical focus of epilogoi on recapitulation, amplification, rousing of hostile emotions against the defendant (note the allusion to the laws, e.g. at §73) are broached in the sections leading up to this abrupt ending (§§69-78). Thus, the rhetorical context of this supporting speech may help explain the absence of the key notions encountered in other prosecution speeches discussed so far. Even though legal arguments are discussed earlier in the speech (e.g. §§5-11), no public documents are read out at any point. This epilogos was part of the prosecution team’s rhetorical strategy that required Diodorus as synegoros to end the speech with a sustained attack on the character of Androtion. Meanwhile, the prosecutor, Euctemon (§§1-3), is likely to have taken on the task of developing the legal arguments for the prosecution.14 In Demosthenes’ Against Aristocrates, delivered by a certain Euthycles, who was one of a team of speakers for the prosecution,15 there is no appeal to the judges to cast a fair and proper vote in accordance with the laws; instead, there is an extended section revisiting key non-technical proofs from laws that Euthycles had cited in his graphe (§§215-218). After a fine piece of statutory analysis, the speaker concludes his speech by twice calling upon the judges not to be deceived in the knowledge that Aristocrates made the most illegal proposal ever (§219). Although the notions of proof, truth and to dikaion are not explicitly referred to in this speech, they are not totally absent given the detailed, final analysis of clauses from laws and the appeal to the judges not to be deceived. It is likely that the notions in question might have been deployed in subsequent speeches delivered by the prosecution team. But even so, this case demonstrates once again the versality evident in the extant epilogoi and the adaptability of the rhetorical strategies to the rhetorical and legal context of the speeches. Finally, in the epilogos to Demosthenes’ Against Timocrates, another speech in a public case relating to Athenian legislative procedures (a graphe nomon me epitedeion theinai), the speaker Diodorus first devotes a few 13

In her commentary Giannadaki (2020, 43) notes that “there is no epilogue (epilogos) proper in Against Androtion”. However, she adds, “the end of the speech constitutes an emotional outburst against Androtion, a tacit invitation to punish an official who has lived a shameful and impious life …. This emotional outburst is compatible with the tone of the typical epilogue as discussed by the rhetoricians”. 14 Giannadaki 2020, 8. 15 Rubinstein 2000, 238 no. 12.

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chapters to the Athenian legal ideology (thus echoing the epilogos to Dem. 23 Against Androtion), before seeking to stir anger against Timocrates (§§215, 218). It is obvious then that, as in Dem. 23, the standard appeals to the judges to vote in accordance with the laws might have been felt to be redundant in this context. The laws of the city and their fate in the aftermath of the trial take centre stage in the epilogos to Demosthenes’ first speech Against Aristogeiton (IJȓ Ƞ੣Ȟ ਥȡİ૙IJૃ, ੯ ਙȞįȡİȢ ਝșȘȞĮ૙ȠȚ, İੁ ʌȡȠȑȝİȞȠȚ IJȠઃȢ ȞȩȝȠȣȢ ਩ȟȚIJİ;): the judges are asked to defend the laws, even though this appeal differs from the standard epilogic appeals encountered in other speeches in that the speaker appeals to the gods, too (25.98, 101).16 The epilogos of Against Neaera [Dem.] 59 reiterates Apollodorus’ claim that Neaera is guilty “in accordance with the graphe” (§125), and stresses his own truthfulness and that of his witnesses and the fact that Stephanus is lying because he was unwilling to hand over his female slaves to be tortured. All three notions examined in this chapter play a role in the epilogos: documentary evidence in the form of witnesses provided by Apollodorus and the failure of the opponent Stephanus to put up slaves for torture both prove the prosecutor’s truthfulness and Stephanus’ mendacity. The notion of to dikaion is also underlined (§126), which is further bolstered through a reference to the gods. Hyperides’ Against Philippides, a fragmentary prosecution speech in a graphe paranomon, ends by deploying a key piece of evidence, the graphe, and reminding the dicastic audience of the laws; he also calls upon them to reach a fair and expedient verdict, as proof of the reliability of the case he has made. Thus, key means of proof and the notions of lawfulness and expedience are impressed upon the judges (§13). In this prosecution speech, the public character of the graphe paranomon seems to dictate the reference to the laws and the graphe. But this speech is a synegoria, one of possibly four supporting speeches for the prosecution (Hyperides explicitly says he only spoke for “one amphora”, when the whole prosecution would have had more than 5½ amphorae at their disposal), and it is likely that the extant speech was the very last one, hence the repeated references to the judges’ verdict (§§4, 13) and the call upon the clerk to have the graphe read out once again.17

16

A similar technique is deployed in [Dem.] 26.25-27. Rubinstein 2000, 36 rightly points to the reading out of the graphe as evidence supporting the suggestion that it was one of the speeches delivered “towards the end of the slot allocated to the prosecutors”, but does not conclude that it was the very last speech for the prosecution. 17

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In the fragments of Hyperides’ Against Demosthenes, another synegoria for the prosecution on a charge of treason, Hyperides’ appeals to the laws (§39) are formulated in a negative way: this time it is not “vote in accordance with the laws”, rather it is “if your vote does not conform with the laws and justice, this acquittal, men of the jury, will be left behind as your own legacy” (§39). Since it is likely that Hyperides was the third prosecution speaker (out of ten: Din. 2.6), one might expect that the other prosecution speeches, too, would have included appeals to the laws and the concept of justice. In the epilogos to Dinarchus’ speech Against Demosthenes, the speaker alludes to the fact that the main charges had already been covered by another prosecutor, Stratocles (§1). This probably explains why appeals to the laws and other non-technical proofs of the case are not prominent in the epilogos: there is a single appeal to the judges to deliver a fair verdict (§111); the speaker also asks them to demand that the defence deliver speeches that relate to the charge (§113). The examination of epilogoi in extant public prosecution speeches has highlighted the diversity of strategies adopted that at the same time reflect the diversity of rhetorical and legal contexts in which the speeches were delivered. The fact that some of the speeches in question were part of team efforts for the prosecution did determine the contents of the epilogos and, in particular, the way in which notions and arguments were deployed in speeches and the order in which the speeches were delivered in court. The epilogoi of some of the lengthiest forensic speeches often (but not always) deploy references to the notion of expediency (sympheron), even though they do not consistently appeal to to dikaion or remind judges of the nontechnical proofs adduced earlier in the speech. However, the overall rhetorical strategy in the rest of these speeches and the rhetorical focus of the epilogos determines to a large extent the use or non-use of these notions. The absence of to dikaion, references to atechnoi pisteis or the notion of truth from some of these speeches suggests that these notions were not seen as indispensable in the epilogoi of public prosecution speeches; rather, the precise combination of these notions depended on contextual factors.

4. Epilogoi in public defence speeches Although far fewer defence speeches delivered in public cases survive, their epilogoi may still shed precious light on rhetorical strategies adopted by defendants (or devised for them by their logographers). In an early, notorious (and highly political) case, Andocides’ speech On the Mysteries was delivered when the defendant was on trial for his life (and

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career) in the endeixis brought against him (400 or 399). The epilogos (§§144-150) performs two of the functions identified by Aristotle, namely promoting the speaker’s character and appealing to the emotions of the audience of judges: there are references to his family and distinguished ancestors who benefited the city of Athens. There are emotional appeals to the judges to save him, before he calls up the syndikoi (Anytus, Cephalus, Thrasyllus et al.) to speak in his support (§150).18 The epilogos does not deploy any of the key notions we have been examining so far: there are no references to the proofs deployed in the speech, although various types of documents, especially witness depositions, abound throughout the speech;19 what is more, one cannot trace any appeals to the judges to reach a fair or expedient verdict.20 This might be due to a combination of factors: the stakes were very high in this case and that probably goes some way towards explaining the emotional tone of Andocides’ pleas. However, an examination of prosecution epilogoi in other speeches delivered in endeixeis shows that they also deployed strong emotional appeals, referred to the speaker’s family bonds, and sought to stir anger and discourage any demonstration of pity on the part of the judges towards the defendant (e.g. [Dem.] 58.66-70). However, one of the prosecution speeches in cases of endeixis does include an appeal to the judges to judge fairly ([Dem.] 58.70), whilst another appeals to the laws less directly (IJȓ Ƞ੣Ȟ ਥȡİ૙IJİ ... İੁ ʌȡȠȑȝİȞȠȚ IJȠઃȢ ȞȩȝȠȣȢ ਩ȟȚIJİ; Dem. 25.98). It is difficult to reach a definitive conclusion, but a combination of the orator’s personal style, the type of case and the stakes involved, in conjunction with the political context of a given case, might help to explain the reduced role played by appeals to a just verdict in this particular defence epilogos in Andocides’ speech On the Mysteries. By contrast, the epilogos of Lysias’ defence speech On the Olive Stump (in a graphe asebeias delivered before the Areopagus) deploys the language of proof (the verb apodeiknumi [x2] and the nouns martyras [x2] and tekmeria (Lys. 7.42-43). Lysias’ provision of proofs is even contrasted with the lack of evidentiary support on the part of his opponent (§43); it was probably seen as one of the strengths of his case, and that explains the emphasis on it in the epilogos. The speech finishes quite abruptly and there is no reference to the laws or to to dikaion. In other public defence speeches, although there are references to to dikaion and its opposite, he adikia, there are less frequent references to the laws of the state. The epilogos to [Lys.] 20 echoes the themes in Andocides’ 18

Contrast how the prosecutor in Lys. 6.55 urges the dikastai to show no pity towards Andocides (pity should be shown to those who die unjustly). 19 E.g. §§14, 15, 18, 28, 35, 46, 77, passim. 20 The epilogos of Lys. 6 does not deploy these appeals to the judges either.

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On the Mysteries at least to some extent: emotional appeals and references to the speaker’s family that parallel those deployed by Andocides are combined with a reference to the hypothesis that the judges might unfairly condemn him ([Lys.] 20.35).21 In Lysias 9, For the Soldier (a defence speech in an apographe), the speaker seeks to evoke the sympathy of the judges and appeals to the concept of dikaion positively and negatively, as part of his hypothetical statement regarding the outcome of this case, before he issues a strong final plea to the dikastai to prioritize the idea of fairness (§22). Although the repeated appeals to the concept of justice at the end of the speech are not accompanied by appeals to truthfulness or to the proofs adduced earlier by the speaker, evidence in the form of witnesses and laws put forward as proofs is referred to at §§9, 13, before the epilogos. In Lysias’ defence speech On the property of Aristophanes (Lys. 19), another speech in an apographe, the theme of justice for the speaker is combined with a reference to proof (§60), truth (§61) and what is financially expedient for the city: the latter theme relates to the fact that this case could lead to confiscation of the speaker’s property and this might have been presented by the prosecution as a strong financial incentive to convict the speaker. The speaker argues that not even two talents would end up in the city’s coffers (§61). Meanwhile, in Lys. 21, another defence speech in an apographe, the speaker stresses his goodwill to the polis and seeks to evoke the sympathy of the dikastai, but the concepts of proof, truth and justice do not feature in his epilogos. In Demosthenes 18 On the Crown, a supporting speech for Ctesiphon, the closing sections of the speech (§§321-324)22 do seek to engender the goodwill of the dicastic audience, but none of the themes examined in this chapter are attested. This may be due partly to the fact that this is a supporting speech and Demosthenes himself as synegoros is not likely to incur any penalty, and partly to the post-delivery editing that may have altered the contents of the epilogos that would have been delivered in court. Aeschines’ defence speech in the False Embassy case (part of Aeschines’ euthynai) includes appeals to the potential injustice that would be perpetrated if he were convicted and references to the family members who have come to court to support the defendant (§179) that form part of the extended emotional appeals made by Aeschines (§§179-182). The notion of expedience is also broached, as he indicates that helping him 21 Contrast Plato’s Apology, where Socrates explicitly turns down the opportunity to evoke the audience’s pity by appealing to his family members (34c-35d). 22 Yunis places the start of the epilogos at §297 and notes that “D. begins to conclude without signalling that he is doing so” (2001, 275).

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would benefit the community (§183). Yet there is no reference to the concept of truth, or appeals to proofs presented, the laws of the state or to the concept of justice. Hyperides’ epilogos in the eisangelia speech In Defence of Lycophron does contain emotional appeals, but lacks any reference to the concept of truth, to proofs presented earlier or to the concept of to dikaion before the speaker brings his speech to a close and introduces his supporting speaker (§§19-20). It is always a possibility that such appeals might have been part of the second speech also composed by Hyperides (and delivered by a certain Theophilus, §20). Conversely, the defence speech On Behalf of Euxenippus (in another case of eisangelia) concludes by reminding the dikastai of the illegality of this eisangelia and calling upon them to have the impeachment, the impeachment law and the heliastic oath read out to them before they cast their vote and consider what is dikaion and in accordance with the law (§40). Hyperides is the second (and possibly last) speaker for the defence (note §41) and was charged with proving/arguing against the legality of the eisangelia; this seems to suggest that there is a connection between the task of individual speakers in a multi-person (defence) team and the themes they broach in the epilogos. The examination of epilogoi in public defence speeches has demonstrated that, whilst the rhetorical context (e.g. order of speakers in multi-person defence teams) or the personal circumstances of the speaker (e.g. in And. 1 or in Dem. 18) might have made appeals to the notions of proof, truth and justice less important or relevant in certain epilogoi, the epilogoi of public defence speeches of Lysias do broach these notions whilst one epilogos in Hyperides (Euxenippus) deploys only the notion of dikaion based on the key legal documents read out. The key notions examined in this chapter do not appear to be hackneyed topoi, but form part of elaborate rhetorical strategies that develop in the speeches and reflect specific contextual factors and deliberate rhetorical choices on the part of the orator.

5. Epilogoi in private cases (prosecution and defence) One might expect different rhetorical approaches in epilogoi of speeches delivered in private cases. However, despite there being evidence for variation in the rhetorical strategies deployed, the public and private distinction does not appear to cause such diversity in the deployment of the notions in question.

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5a. Private prosecution speeches In private prosecution speeches, the extent to which the speaker makes use of epilogoi varies from case to case. Most speeches tend to appeal to the dikastai to vote fairly23 and, less often, in accordance with the laws,24 or to cast a “fair” (dikaian) and “holy vote” (hosian psephon).25 In the brief epilogos to Lysias’ prosecution speech Against Theomnestus (a dike kakegorias), the speaker seems to adopt themes more peculiar to defence speeches, and appeals to the dikastai to help him, his father and the established laws and the oaths they have sworn (§32). In addition, he points out that, whilst prosecuting Theomnestus, he is also being accused of parricide (see §§26-28, 31), but there are no references to proofs, the concept of dikaion or to truth-telling. The epilogos to Isocrates’ Against Lochites (in a dike aikeias) does refer to the law which the defendant has allegedly breached and hypothesizes what might happen if the dikastai deprived themselves of their rights according to the laws (§20). He also calls upon them to show their anger towards Lochites, as his behaviour demonstrates disregard for the laws. The emphasis on the laws thus parallels/echoes appeals to to dikaion in other speeches. However, there are no references to proofs, the concept of dikaion or to truth-telling in this speech either. In the epilogos to Demosthenes’ first speech Against Aphobus (27.6365), reference is made to the laws and the oaths that the dikastai had sworn, whilst at the very end of the epilogos to the Second Speech Against Aphobus one encounters references to witnesses and proofs, as well as arguments from probability and powerful emotional appeals to the judges. The renewed focus on witness depositions in Demosthenes 28, which recycles some of the material first presented in the first speech Against Aphobus (Dem. 27), shows their strategic importance in this epilogos. There is an appeal to the concept of dikaion slightly earlier (§20) and an emotive plea to the dikastai to help Demosthenes as well as his deceased father, Demosthenes senior, whilst the same concept returns at the very end of the speech (įȚțĮȓȦȢ… įȚțĮȓȦȢ, §24). There is no appeal to the notion of truth in this epilogos. Similarly, in the prosecution speech Against Onetor (in a dike exoules) the epilogos follows the reading of a witness deposition (§34) and a challenge 23

Isoc. 17, 18 (įȓțĮȚĮ țĮ੿ ıȣȝijȑȡȠȞIJĮ), 19, 20 (IJ૵Ȟ ਥȞ IJȠ૙Ȣ ȞȩȝȠȚȢ įȚțĮȓȦȞ ..., IJ૵Ȟ ȞȩȝȦȞ țĮIJĮijȡȠȞȠ૨ıȚ); Dem. 28, 33, 39 (Ƞ੝ įȚțĮȓȦȢ, ȞȩȝȠȚȢ, ȖȞȫȝૉ įȚțĮȚȠIJȐIJૉ, țĮIJ੹ IJȠઃȢ ȞȩȝȠȣȢ); [Dem.] 44, 48. 24 Dem. 45, 49. 25 [Dem.] 47.

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to basanos (§36), and there are several references to truth-telling (five attestations of [Ƞ੝ț] ਕȜȘș- in §§37-39) in conjunction with vocabulary denoting “demonstration” and “proof” (note ȕȐıĮȞoȞ, ȕĮıĮȞȓȗİȚȞ, ȕĮıĮȞȓȗİıșĮȚ [x4 in §37], ȝĮȡIJȣȡ- [x3 in 37, once in §39], ਕʌȠįİįİ૙ȤșĮȚ [39]). The speech concludes with a sentence combining strong negation of truth-telling (since it relates to the opponent, Onetor) with a brief refutation of the opponent’s key arguments. The conclusion does not deploy an appeal to the dikastai to judge fairly, although the term dikaion is deployed earlier in the epilogos in a slightly different context (§36). Thus, contextual factors seem to dictate a different strategy that is also echoed in the much shorter second speech delivered at the same trial (Dem. 31); this speech also focuses on truth-telling and deception as key concepts in this case (ਕȜȘș- x10, ijİȞĮțȓȗİȚ, ʌĮȡĮțȡȠȪıĮıșĮȚ ȗȘIJİ૙, §12) and comes to an end rather abruptly with a succession of rhetorical questions, thus showing that the appeal to the judges to vote in accordance with justice is not indispensable to forensic epilogoi. Most epilogoi appeal to the dikastai to vote fairly (IJĮ įȓțĮȚĮ ȥȘijȓıĮıșĮȚ or similar expressions), others reflect an emphasis on truth that predominates elsewhere in the speech, while other epilogoi eschew references to proofs, the concept of dikaion or to truth-telling altogether. Once again, contextual factors seem to dictate the diverse strategies deployed; the extent to which a speaker deployed the key themes examined in this chapter varies from case to case.

5b. Private defence speeches The extant defence speeches in private cases tend to avoid references to the laws of the state in general. Only in one speech ([Dem.] 56 Against Dionysodorus) in a dike blabes is there a striking appeal to the dikastai to act as “lawgivers” of the whole port.26 This is clearly an indication of the way in which the speaker wanted to make this private case relevant to the wider community; in his view, this is a public, not a private matter (§48). In Isaeus’ defence speech On the estate of Menecles delivered in a false witnessing case (dike pseudomartyrion), the speaker (the adopted son of Menecles) makes a strong appeal to the judges that combines powerful emotional appeals and a reminder of the proofs he had adduced during the speech. On the one hand, he reminds the judges that he has used the adoption laws to prove his point (§45) and stresses that he has demonstrated the facts through numerous relevant witnesses and laws. On the other hand, he 26 There is also a single reference to the laws as helping the lenders in Dem.’s Against Phormion (34.52).

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deploys emotional appeals to the judges, whose wording echoes Andocides 1.148 (ਕȞIJȚȕȠȜ૵ țĮ੿ ੂțİIJİȪȦ ਥȜİોıĮȓ ȝİ țĮ੿ ਕʌȠȥȘijȓıĮıșĮȚ IJȠ૨ ȝȐȡIJȣȡȠȢ IJȠȣIJȠȣȓ). He implores them to help both him and the deceased who is now in Hades and accompanies this appeal with an oath, before bringing the speech to a close with a final appeal to the judges to remember the law, the oath they had sworn (i.e. the dicastic oath sworn before the trial) and the speech they have heard (§47). Thus, the epilogos to this defence speech brings together most of the rhetorical objectives identified by Aristotle (see above), as it predisposes the audience positively towards the speaker and negatively towards the opponent, seeks to evoke emotions of pity, sums up key points, touches on the notion of justice, and reminds the judges of key proofs. However, although there are a few references to truth-telling in the speech (§§2, 16, 17, 38), one might have expected more attestations of the vocabulary of truth-telling, especially considering the type of private action in which this speech was delivered. The speech ends with a variation of the appeal to the judges to vote fairly and in accordance with the oath and the laws (§47). In the epilogos to Lys. 3, a defence speech in a case of wounding with premeditation (dike traumatos ek pronoias)27, there is only one appeal to the judges to vote according to justice (§47), whilst the defence speech Against Callicles (Dem. 55) in a dike blabes ends with a proklesis to the opponent to swear an oath and the presentation of a number of witness depositions (§35). The presentation of additional depositions at the end of a speech that has already featured a number of depositions (§§14, 21, 27) was meant to create a sense of the overwhelming weight of evidence on the side of the defendant that might have helped sway the judges to acquit him. The only epilogic element that recalls Aristotle’s list of functions is an emotional appeal to the judges not to abandon the speaker in the hands of his opponents as he has not committed any injustice (§35). In the speech Against Aphobus in defence of Phanus (Dem. 29) delivered in a false witnessing case, the epilogos stresses Aphobus’ mendacious witnessing (§55) and uses the language of proof to refer to the way in which Aphobus had attacked the witnesses (IJ૵Ȟ ȝĮȡIJȪȡȦȞ țĮIJĮȥİȣįȩȝİȞȠȢ, §57); finally, Demosthenes recapitulates key facts of the case through a mininarrative.

27

I follow Todd 2007, 281-284 (with a summary of main scholarly views), who maintains that both dike and graphe existed for cases of trauma ek pronoia and suggests that Lys. 3 was a dike.

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6. Paragraphe, diadikasia, dokimasia speeches The examination of forensic epilogoi so far has focused on public and private speeches in which a penalty for either party is the likely outcome of the trial. However, it is also worth exploring forensic epilogoi in legal suits such as diadikasiai, paragraphai and dokimasiai, all of which lack a penal aspect, since it has been shown that the rhetorical strategies adopted in speeches delivered in connection with some of these procedures reflect this key legal feature.28 In the epilogoi of some diadikasia speeches, there are references to the concept of justice in general terms, but also in connection to the vote that the dikastai were going to cast.29 They thus seem to share this appeal with forensic speeches examined earlier. The epilogos to [Dem.] 43 appeals to the notions of justice and expedience and calls on the judges to vote in accordance with their oaths (§84); Isoc. 19 calls on the judges not to be deceived and commit an injustice in this case, and the speaker concludes by deploying the typical appeal to the judges to vote in accordance with justice (§51). The epilogos to Isae. 1 only invokes to dikaion (§§49, 51); Isae. 7 appeals to the notion of justice (§45) and Isae. 4 also calls on the judges to vote in accordance with their oaths (§31). In the epilogos to Isae. 9 there are implicit appeals to the notion of dikaion (§35) but none of the other concepts; in a similar way, in Isae. 10, the appeal to the laws and the notion of dikaion are combined with the concept of proof (ਕʌȑįİȚȟĮ, §26). Finally, Isae. 8 not only refers to the different means of evidence adduced in the speech but also appeals to the dikastai to remember their oaths, the laws and to vote for what is dikaion (§46). The epilogos is followed by the reading out of a witness testimony. By contrast, epilogoi in dokimasia speeches do not always invoke the concepts of justice or deploy appeals to the laws or to the bouleutai to cast their vote in accordance with the laws and their oaths.30 The epilogoi to Lys. 16 For Mantitheus, Lys. 26 Against Euandrus and Lys. 31 Against Philon do not invoke any of these themes, whilst we do not have an epilogos for Lys. 25. The epilogos to Lys. 24 does include an appeal to the bouleutai to 28 Rubinstein 2000, 134-135 has shown that appeals to anger and hostile emotions are rather restricted in cases of diadikasia. 29 [Dem.] 43; Isae. 7, 9 (an appeal to justice and possibility of injustice being perpetrated), 8, 10; note also 4, a supporting speech in which the speaker refers to the laws, the oaths and the witness-statements that the main speaker has provided as the basis upon which the dikastai ought to ground their verdict. 30 Lys. 16.17 represents an indirect appeal to the judges to vote in accordance with justice: ੆ȞĮ … įȚ੹ IJĮ૨IJĮ ȕİȜIJȓȦȞ ਫ਼ijૃ ਫ਼ȝ૵Ȟ ȞȠȝȚȗȩȝİȞȠȢ ਖʌȐȞIJȦȞ IJ૵Ȟ įȚțĮȓȦȞ IJȣȖȤȐȞȠȚȝȚ.

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reach a just decision, whilst the epilogos to Lys. 31 does not contain appeals to to dikaion. Instead, the speaker suggests that based on the case he has presented, the bouleutai would be able to reach a decision that would be advantageous to the city. There are no references to aletheia or to different kinds of evidence in any of these epilogoi. As for epilogoi in paragraphe speeches, they present a mixed picture: in the epilogos to the earliest paragraphe speech (Isoc. 18), the speaker calls upon the judges to vote in accordance with what is fair and expedient (§68). In the epilogos to the speech Against Apaturius, the speaker refers to Apaturius’ deception and involvement in the disappearance of evidence ([Dem.] 33.30-33) and brings the speech to a close with a variation on the theme of fairness (“I have spoken what is fair; now it is your turn, judges, to reach a judgment in accordance with justice”, §38), but the notions of the speaker’s truthfulness and Apaturius’ mendacity and deception are also invoked (IJ੹ ȥİȣįો … ȥİȣįȩȝİȞȠȢ, §35, ਥȟĮʌĮIJ઼Ȟ ʌİȚȡ઼IJĮȚ, §36). In the epilogos to Against Phormion (Dem. 34), there is reference to Lampis’ mendacity and volte face (§46). Lampis was a key witness in this case and the speaker reminds the dikastai that his change of stance (from truthful to lying witness) should not affect their verdict. His mendacity was a key theme in much of the speech, so its reiteration in the epilogos is to be expected and helps the dikastai remember before reaching their verdict. The epilogos of the paragraphe speech Against Lacritus (Dem. 35, a reply to a paragraphe) combines references to the concept of dikaion with the notion of expedience (sympheron), a necessary addition given the implications of this case for the all-important maritime trade that echoes references to the notion of sympheron in public speeches examined earlier. An emphasis on Lacritus’ civic-spirited character at the end of the speech is underscored by citation of a law and witness testimonies right at the end of the speech (§62). The epilogos to Dem. 36, a reply speech in a paragraphe, deploys an appeal to the judges to show themselves to be true to their oaths and to save Phormion in accordance with justice (§61), a variation on the appeal to to dikaion. This appeal is followed up by the reading out of a law and witness depositions (§62), thus making non-technical proofs (atechnoi pisteis) a key feature of the epilogos. Dem. 37 concludes with an unusual appeal to the judges to pass a just verdict in this case (§60). Finally, the epilogos to Dem. 38 invokes repeatedly the concept of to dikaion (x5 in §§27-28), but does not deploy an appeal to the judges to reach a verdict in accordance with what is just. What is more, there are no references to documentary evidence presented earlier in the speech or any affirmations of the speaker’s truthtelling and the opponent’s mendacity. The epilogoi to our (admittedly few) extant speeches in cases of

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dokimasia invoke the concept of justice less frequently and do not deploy appeals to the laws or to the bouleutai to cast their vote in accordance with the laws of the state and their oaths. Appeals to the notion of truth and references to evidence deployed earlier in the speech are not attested either. In the epilogoi of some diadikasia speeches, there are references to the concept of fairness in general terms, but also in connection to the vote that the dikastai are going to cast and some of epilogoi also remind the dikastai of evidence already presented. Similarly, epilogoi in paragraphai present a diverse picture that seems to parallel epilogoi in private cases.

7. Epilogos Whilst Aristotle is broadly correct in his categorization of the rhetorical functions of epilogoi, an examination of the notions of proof, truth and justice (to dikaion) and the ways in which they are deployed in the epilogoi of extant forensic orations reveals considerable diversity in terms of the rhetorical strategies used by the orators in response to contextual factors. Whilst there is no doubt that the main function of the epilogoi attested in Attic forensic oratory is recapitulation of the case presented by the speaker, other epilogic functions operate in conjunction with this main function and interface with one another (e.g. engendering a positive disposition towards the speaker and/or negative towards the opponent, emotional appeals). However, in some cases, there is no recapitulation or merely a token one. The invocation of the notion of justice, the reference to non-technical proofs such as witnesses and laws, assertions of truth-telling and occasionally also appeals to public interest (sympheron) are deployed in conjunction with these functions to boost the credibility of the speakers by emphasizing that they met their obligations qua speakers (litigants or supporting speakers) in a court of law (hence the deployment of the language of proof: “I have proved …”), and to generate goodwill on the part of the dikastai at the end of their speech. At the same time, these epilogic themes help the speaker remind his dicastic audience31 of their own duty to judge in accordance with the law, in keeping with the dicastic oath they had sworn. However, interesting variations in the patterns of deployment of these notions can be identified, too, that reflect the rhetorical strategies of the speakers in the speeches, but also contextual factors. The notion of justice (dikaion) features in the overwhelming majority of extant epilogoi, whilst the notions of proof and truth are seen as less vital at the end of most speeches, except in those where truth and untruth had 31 The majority of the speeches were delivered in a dikasterion; a few were delivered in the Boule.

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already played a key role in the rest of the speech. In some speeches, the reading out of documents (witness depositions or other document relevant to the case) precedes the epilogos and any references to them in the epilogos might have impressed the dicasts with the strength of a speaker’s case, whilst in a few speeches we even encounter the reading out of documents at the very end of the epilogos. Although this strikes us as a potentially very effective rhetorical strategy, the fact that it is not attested more frequently may simply reflect the rhetorical circumstances of specific cases or the individual style of specific speakers. There is a greater tendency in public prosecution speeches to appeal to laws, yet some of the epilogoi to the lengthier speeches of the corpus lack references to the notion of to dikaion (especially if they are supporting speeches in a team prosecution). Might the deployment of all three notions examined in this chapter be a matter of individual oratorical choice and contextual factors? This would seem to be confirmed by the way these three notions are being deployed in public defence speeches, where all three are less likely to appear together in an epilogos. References to non-technical proofs in the epilogos might reflect a strategic response to the opponents’ lack of documentary evidence. The examination of the deployment of these three notions in forensic speeches shows that the public-private distinction and the role played by a speech for the prosecution or the defence, do not account for the individuality of rhetorical strategies witnessed in the epilogoi. Whilst rhetorical theory has identified rhetorical functions of the epilogoi, a closer examination of the way in which the notions of non-technical proofs (including references to witness depositions), truth and justice are being deployed, reveals a high degree of diversity and individuality that defies easy categorization and calls for a closer examination of rhetorical strategies in the epilogoi relative to the rest of the speeches, but also of the political and legal context of the speeches themselves and the individual styles of orators.

CHAPTER 17 WITNESSES AND NARRATIVES OF DISPLACEMENT IN ATTIC DRAMA AND ORATORY ADELE C. SCAFURO

1. Introduction The scenarios I examine here concern witnesses who assist in identifying individuals in Tragedy, Graeco-Roman New Comedy and the Orators. A good beginning point is Aristotle’s well known discussion of ਕȞĮȖȞȫȡȚıȚȢ (“recognition”, “discovery”) and ʌİȡȚʌİIJİȓĮ (“reversal”) in Poetics 11 and 16. With attention focused on plot structure, Aristotle in the first passage defines ਕȞĮȖȞȫȡȚıȚȢ as “a change from ignorance to knowledge, to friendship or to enmity, in matters that determine prosperity or adversity”; he declares that the finest type occurs simultaneously with a ʌİȡȚʌİIJİȓĮ; when a recognition of persons occurs together with the reversal, it produces fear or pity, the kinds of effects that tragedy imitates.1 In Poetics 16, he returns to recognitions and lists multiple ways in which they occur, drawing examples from epic and tragedy;2 the first are the least artistic (ਕIJİȤȞȠIJȐIJȘ) and these come about through tokens (įȚ੹ IJ૵Ȟ ıȘȝİȓȦȞ); the second are contrivances of the poet—sequential actions or arbitrary acts rather than exigencies of plot construction—and these, too, are inartistic (ਙIJİȤȞȠȚ); the third arrive by way of a person’s memory of an event and trigger perception; the fourth arrive through inference (ਥț ıȣȜȜȠȖȚıȝȠ૨), a subdivision of which is a composite arising out of a false inference made by the audience;3 1 Arist. Poetics 11.1452a29-1452b1. Translation is open to varied interpretation; e.g. IJ૵Ȟ ʌȡઁȢ İ੝IJȣȤȓĮȞ ਲ਼ įȣıIJȣȤȓĮȞ ੪ȡȚıȝȑȞȦȞ: see Lucas 1968, 131 on 52a32. 2 Arist. Poetics 16.1454b20-1455a20. 3 For difficulties of text and meaning here, see Lucas 1968, 171-172.

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finest of all are those that come about from the actions themselves, when an unexpected disturbance arises in a probable way—as examples, Aristotle cites Oedipus Tyrannus (OT) and Iphigeneia among the Taurians (IT). Scholars over the centuries have often used (or tried to use) Aristotle’s discussion in these chapters to guide interpretations of the plots and characters of tragedy and comedy (Old and New). Though I mention some here, I make no attempt to review these receptions and ask readers instead to begin this comparison of dramatic and courtroom strategies of witnessing by looking to the specific context (viz. plot construction) of Aristotle’s discussion of “recognitions” and to see that he is not interested in distinguishing “recognition” (a broad concept) and what I would call “identification” (a sub-division of the former): not all recognitions of persons are identifications: while the latter might also be considered a “change from ignorance to knowledge” (1452a30-31) and hence a “recognition” of a sort, it is specifically a change that creates an identity for a particular person. Whereas Orestes in IT after a separation of many years recognizes his sister Iphigenia, the recognition does not cause a change to her identity—she is still Iphigenia, daughter of Agamemnon and Clytemnestra; on the other hand, after the messenger and herdsman in OT give information to Oedipus about his true parentage, he not only comes to recognize who he is, he also has a new identity: no longer the son of the Corinthian Polybus and Merope, he is now the son of the Theban Laius and Iocaste. Although in the corpus of extant Greek tragedies recognitions of the “Iphigenia type” are more numerous, identifications of the “Oedipus type” must have been common. The Ion, of course, stands out, together with the OT, as the only extant examples, but identifications were featured in lost plays such as the Tyro of Sophocles, Astyadamus, and Carcinus. In “tragedies of identification”, the character who acquires a new identity was often separated from his parents at birth, exposed and then adopted by substitute parents. We might designate such a person as “displaced” in society, and his or her story as a “narrative of displacement”. Tragedies of identification that have such narratives serve, in part, as models for certain plays of New Comedy, especially “citizen identification” and “change of status” plays.4 The former is the name I use to designate those plays in which a young adult who is thought to be of non-Athenian 4

Cf. Traill 2008, 245-268; she sees Menander as transforming “a fundamental element of tragedy by turning tragic ignorance into comic misperception” (245) and considers why women are so often the subject of these “misperceptions”; 261-266 offers further reflections on New Comedy’s debt to tragedy and its appropriation of ਕȞĮȖȞȦȡȚıȝȩȢ. For a broad view of plays of “mistaken identity” (with OT as a beginning point), see Panayotakis 2020.

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origin turns out to be born of Athenian parents; such scenarios end in betrothal or marriage. The change of status plays are similar and usually concern the identifications of young women or infants whose parentage and/or ethnic origin is unknown or unvalidated. If the father of such a young woman is identified, she may subsequently be permitted to marry a beloved and the change may be marked by her new status as, e.g., a ȖĮȝİIJ੽ ȖȣȞȒ. If an infant of dubious parentage is identified, that act will end in the marriage (or the preservation of the marriage) of the parents. Citizenship in these plays, even if set in Athens or acted with Athenian protagonists, is not an expressed concern.5 In a number of these plays, slave women who are about to begin careers as prostitutes are identified as freeborn in the nick of time and are able to marry their beloveds and/or prevented from a liaison with a kinsman (e.g. Curculio, Epidicus, Poenulus, Rudens). On one occasion, in a play set in Aetolia, the identification of a protagonist leads to a change of status from enslaved to free (Captivi) and there is no beloved in sight.

2. Familial identifications and evidentiary strategies Two elements in the paradigmatic tragedies of identification, OT and Ion, may be singled out for their reappearance in New Comedy: familial identifications and the evidentiary strategies that produce them.6 Familial identification in the Ion is closely attached to ethnic identity. The issue of 5

It is too complex an issue to offer a rationale and enumeration of how many plays belong to which category here; scholars have provided different answers, sometimes relying on plays too fragmentary for conclusions and ignoring their settings; see, e.g., Mette 1965, 100-105 and Webster 1974, 15-17; Gomme and Sandbach 1973, on the other hand, is very careful. Here are some bare statistics of my own; among the collective plays of Menander, Plautus, and Terence (excluding from the ‘Menander count’ the doublets that exist only fully in the Latin plays, e.g. Men. Andria): I count 19 “identification-marriage plays”, of which 11 are set in Athens or have Athenian protagonists; in only three (Sik., Eun., And.) is the obstacle that prevents marriage explicitly explained as the lack of citizenship of the young man or woman. In the remaining eight “Athenian plays”, there is no mention of citizenship, but a change in social or family status is marked as a result of identification: Epitr., Heros, Samia, Epidicus, Rudens, Truc., H.T., Phormio; among these, Epitr., Samia, and Truc. concern infants. “Non-Athenian plays of known setting” (e.g. Cist.) and “unknown setting” (e.g. Misoumenos) may also be “change of status plays”; citizenship is not an explicit issue (rights of epigamia may pertain in Cist.), but membership in a particular family is. 6 “False witnessing” scenarios that often have to do with family identifications also appear in Graeco-Roman New Comedy; e.g., in Sikyonioi and Poenulus 5.2. For these and other examples, see Scafuro 1994, 180-181.

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Ion’s identity is played out as the crisis of a childless couple, between the foreign-born husband and the native-born wife, between the husband who as xenos has won the right to wed an Athenian queen—indeed, a wife who is the daughter of Erichthonius, the autochthonic king of Athens. When Xuthus claims Ion as a son, he assures him he is well born (581), but Ion sees complications—born to a father who is not a native-born Athenian and of a mother whose identity is unknown; the mythic world has been conjoined to fifth-century civic institutions.7 The identification of Oedipus’ parentage is played out differently; whether he is Theban or Corinthian turns out to matter very much, but that is a function of his relationship to his mother/wife—and not a function of civic or ethnic identity in and of itself.8 In comedies of identity, the displaced persons share the concern to know their parentage; it makes all the difference in the world whether they are Athenian—or Lemnian, Sicyonian, Corinthian, or Carthaginian. On this depends their status, their capacity to enter into legitimate marriage. Mythic patterns are regularly transferred into the realm of the citizen and his oikos. When Philumene in Men. Sikyonioi has her true identity confirmed, she no longer is an appendage of questionable status in Stratophanes’ household, she becomes the daughter of Cichesias of Scambonidae and the soon-to-bewedded wife of Stratophanes; when Glycera discovers her true father in Perikeiromene, she no longer will be Polemon’s pallake, but his gamete gyne. Gone are the glorious royal titles of Attic tragedy; in their place, entitlement to Attic citizenship (if the play takes place in Athens) and the acquisition of its privileges. A more detailed example will be provided in the course of this chapter. The other shared element, the evidentiary, is the means by which the identifications are made and comprises two entwined components: a narrative of displacement and the testimony of witnesses with their proofs and explanations for the changed status of an infant or young child or adult. Such narratives appear occasionally in Attic oratory of the fourth century in speeches in which the identity of persons and their status as citizens are contested (e.g. Dem. 57, [Dem.] 59; Isaeus 3). Comparison of the deployment of witness testimony in such narratives with similar scenarios in drama not only shows that the dramatic genre reflects issues that ruffle the surface and underbelly of Attic society, but also raises the question: is there influence from oratory to drama, or vice versa? We turn to tragedy first and consider witnessing scenes in OT; two of four episodes will be our main concern; an outline of the episodes will 7

Gibert 2019, 36-40 on Ion’s “citizenship”. For profound reflections on the discovery of Oedipus’ identity in a broadly conceived civic context, see Karakantza 2020.

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indicate the appearance of witnesses (i-iv) and the point at which Oedipus’ attention shifts from his search for the murderer of Laius to a search for the identity of his parents. Thus: Prologue: Oedipus sends Creon to Delphi to find out from Apollo the cause of pollution. Parodos. First episode: (i) Creon returns and gives his report: the murder of Laius must be expiated—his killer must be found. Witnesses are sought; Oedipus, on Creon’s advice, has already summoned Teiresias. (ii) The seer, provoked by the king, reveals that Oedipus is himself the killer. First Stasimon. Second Episode: Oedipus reflects on his possible connections to the unfolding events: inter alia, he recalls that en route to Thebes, he killed a man. Learning that a former servant from the household, now a herdsman, had viewed that act, he summons him to appear. Second Stasimon. Third Episode: A Messenger arrives with news of the death of the Corinthian king; (iii) he also reports that Polybus was not Oedipus’ natural father—long ago, the Messenger himself, at that time a shepherd, had received Oedipus as an infant from a servant of Laius’ household; the servant (the one who was summoned earlier) can confirm the story. Third Stasimon. Fourth Episode. (iv) The former servant, now a herdsman, appears. Oedipus first asks the Messenger to identify him and then begins his questioning. The Messenger takes over but the Herdsman does not want to answer. Under compulsion he admits to having delivered the infant to the Messenger that day. Fourth Stasimon. Fifth Episode.

While the information delivered by Creon and then Teiresias in the prologue and first episode can be considered witnessing scenes, it is the Messenger’s role as “informing witness” in the third episode and the Herdsman’s same role in the fourth that solicit our immediate interest. The two episodes, separated by a querying and supportive choral ode, present in their totality a narrative that tells how Oedipus was displaced shortly after birth and went from one set of parents to another. The overarching narrative is thematic (the displaced infant); its strategy for the presentation of witness testimony, however, works dramatically, as B. Knox in 1959 and R. G. Lewis in 1989 proposed, by allusion to the Athenian investigative procedure of zetesis: the questioning of one witness provides new information, so that another witness is called to provide further information.9 Indeed, one could say that the Messenger and herdsman in OT, as also Creon and Teiresias in the prologue and first episode, all function as “informing witnesses” or “informers” (see section iii below).

9

See §iii infra and nn. 20 and 21.

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Only two segments of the Ion concern us, the second episode (510-675) and the long exodus (1250-[1622]).10 In the former, an oracle was given to Xuthus, acclaiming him as the natural father of the first person he should meet upon leaving the temple of Apollo; when he comes upon the assistant to the priestess of Apollo, of unknown parentage until that moment, he greets him as his son (518-529) and tells him of the oracle. But before the young man accepts the identification, the two together construct a reasonable (?) story of the young man’s displacement as an infant: Xuthus, before his marriage to Creusa and while drunk at a Bacchic celebration at Delphi, had raped a woman; the woman must have exposed the infant (545556). The two agree to the story and accept the identification (559-662), but with some hesitation; the mother’s identity is by no means certain. Xuthus promises to search for her at a later time (575). The long scene ends with Xuthus giving the name “Ion” to his newly found son. Later in the play (the long exodus), after the near catastrophe of the poisoning of Ion, Apollo’s priestess brings onstage the tokens of identity that had been left with the infant when his mother abandoned him. And still later, when Creusa recognizes those birth tokens, she attests for Ion the circumstances of his birth and exposure (1395-1545). Ion seeks confirmation about Apollo’s paternity from the oracle, “I shall go inside the temple and inquire of Phoebus whether he or a mortal man was my father” (1546-1547). As he is about to exit, Athena appears; she gives the final attestation to this quilted narrative of displacement. At this point, Ion’s identification as the son of Apollo and Creusa has had many witnesses, each appearing in separate scenes with their separate discourses: Xuthus, with his bewildered testimony about Apollo’s oracle and speculative reconstruction of the past; the priestess who provides the tokens of the displaced infant; Creusa who gives first-hand testimony of Apollo’s paternity; and Athena who gives confirmation, with further details, even unknown to Creusa till this moment. Ion’s identity is now certain; he is the son of Creusa and Apollo. The story of displacement with its confirmation by witnesses is an integral part of identification in tragedy and runs over from one scene to another as one witness and then another is summoned in OT, and four witnesses, scene after scene, appear in Ion. The strategy of presentation in OT can be said to mimic an investigative procedure and has an intense focus 10 For the following divisions, see the useful commentary of Martin 2018. The second episode (p. 269): 510-16 “Introduction”; 517-562 “False recognition”; 563568 “Desire for the mother”; 569-667 “Aborted agon”; 668-675 “Ion’s acceptance and prospective reflection”. The exodus (p. 458): 1250-1319 “Creusa’s and Ion’s confrontation”; 1320-[1368] “The Pythia”; 1369-1548 “Recognition”; 1549-[1622] “Dea ex machina and exit”.

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driven by Oedipus himself as an Inquisitor who had first sought witnesses/informers to discover the cause of pollution in Thebes, then the killer of Laius, and finally, with ever more intensity, his own parents. Euripides’ successive scenes of testimony have no such (even allusive) link to investigative procedure or courtroom argumentation—unless one counts Xuthus’ creation of a flimsy argument of paternity.11 While Euripides’ proofs of Ion’s parentage do create an imaginative and spectacular quadruple crescendo, ending with Athena’s face-saving appearance for Apollo, no one could possibly compare this to a courtroom drama.12

3. Identifications and narratives of displacement in the Andria, Captivi and Menaechmi When we turn to the identifications of Greek New Comedy and the Roman plays that have Greek models, we may be struck by the different staging of identifications and the positioning of the narratives of displacement. Terence’s Andria, set in Athens and based on Menander’s play of the same name, perhaps gives the clearest illustration.13 Simo, father of Pamphilus, has become aware that his son is involved with Glycerium, a young woman who is thought to be the sister of Chryses, the recently deceased prostitute from Andros; but his son has nevertheless promised, under the guidance of his clever slave Davus, that he will marry Philumena, the daughter of his next-door neighbour Chremes. In the course of the play, it has been whispered about that Glycerium is actually an Athenian citizen and that Pamphilus is planning to marry her; if she is a citizen, all is well and fine; if not—and this is what Pamphilus’ father fears—then Pamphilus is preparing to commit a serious offence against the law, since citizen men cannot marry foreign women unless there are special treaty arrangements between Athens and the home city of the woman.14 In the final act, Crito, the cousin of the deceased prostitute, arrives from Andros, desiring to make a claim on Chrysis’ estate. The scene-by-scene evolution of whispered 11

See Martin 2018 on 545-555. Some scholars have posited a legal procedural framework (e.g. eisangelia) for Eur. Orestes and a charge of one sort or another (e.g. treason); I have argued against these (sometimes attractive) views and see instead an imaginary construction of law and lawlessness in that play (see Scafuro 2019, 186-189 and nn. 10-18). In the Ion, on the other hand, there is no such construction. 13 For the relationship of the Menandrian original to Terence’s play, see Scafuro 1997, 355-357 with nn. 30-33. 14 For examples of treaties with clauses of epigamia, see VelissaropoulosKarakostas 2011, I.146, 149 and 296-299. 12

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rumour that turns into attested fact is too detailed and nuanced to present here;15 instead, I give a synoptic articulation of the dialogue at 5.4.922-945, the penultimate and climactic scene. The character to keep one’s eye on is Chremes: he has assumed a mediating role between father and son and, in the midst of Crito’s testimony, takes over the questioning. Crito speaks first, once again telling the story of Chrysis’ alleged sister Glycerium: “An Athenian man had been shipwrecked on the coast of Andros; a young girl was with him; the man asked Chrysis’ father for help”. Simo: “It’s a fairy tale!” Crito: “The man who took in the shipwrecked man was a kinsman; I heard him say he was Athenian; he died on Andros”. Chremes: “His name?” Crito: “I think it was Phania, a man from Rhamnus ...”. Chremes: “Was the girl his daughter?” Crito: “No, his brother’s”. The light dawns; Chremes: “She’s my daughter!” Now Chremes himself picks up the narrative: “Phania, my brother, left Athens to avoid the war ... he was afraid to leave the girl here ... But the girl’s name’s not right ...”. Crito: “Yes, she had another when she was little. I can’t remember it”. Pamphilus knows: “The name you want is Pasibula!”

The identification is made: rather than in the mode of Murder on the Orient Express where everyone pitches in to kill the hated man Ratchett (whose real name is Casetti), Glycerium’s father, as well as her fiancé and Crito, cousin of the supposed sister Chrysis, have all joined in to identify Pasibula and to create her narrative of displacement—and this occurs in one scene near the end of the play, not two with intervening chorus as in Soph. OT and not three or four as in Eur. Ion.16 The next example comes from a different type of identification play; in Plautus’ Captivi, for which the Greek original is unknown, we move outside of Athens, to Aetolia, and here the family identification of a young man will cause a change in his name and status—he will turn out to be freeborn and not enslaved, but no romance is involved, and no previously forbidden marriage has suddenly become palpably possible. Two young men from Elis, one rich (Philocrates) and the other his slave (Tyndarus), have been captured while fighting in Aetolia and have been sold to the Aetolian Hegio; the latter had been buying up Elean captives in the hope of finding a rich catch to assist in locating and ransoming his older son, Philopolemus, who 15

For extended treatment, see Scafuro 1997, 355-374. Identifications and stories of displacement occur in many New Comedy plays and not all take place in the final act; nevertheless, where they occur, they often display the same sort of compact clustering of witness testimony as in the Andria. Here I focus on the witness clusters that appear at the ends of plays since these have a tendency to be fuller. 16

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is being held captive in Elis. The two Elean captives, however, have switched identities; the Elean master Philocrates is now disguised as the slave Tyndarus, and the slave as the master. This deception allows the real Philocrates to return to Elis, with Hegio’s permission—for Hegio would only permit the slave to go and search for his son, and not the valuable master. Once Philocrates—in the guise of Tyndarus and with a “document” in hand—is gone,17 Hegio visits the other Elean captives held by his brother, to find one who might identify Philocrates; the chosen “identifier”, Aristophantes, however, claims that the captive left behind is not the master Philocrates, but the slave Tyndarus (540ff). The latter is punished by Hegio and sent to work in the quarry. Reversal and recognition come in the last three scenes of the play; preliminaries are set in 5.2 (954-977), when Philocrates returns from Elis with Hegio’s older son; in 5.3 (978-997), the crucial proofs of the identity of Hegio’s younger son are made; and in 5.4 (998-1036), father and younger son reunite under Philocrates’ direction. Our attention will be directed to 5.3, with a nod to the preceding and following scenes. Philocrates, upon his return, not only brings the older son back to Aetolia, he also brings Stalagmus, an ancient slave who once belonged to Hegio and who had stolen away the younger son many years ago and never returned. The parasite Ergasilus had already announced their arrival to Hegio in 4.2 (872-876); he had seen the trio in the harbour; Hegio is thus forewarned and prepared. Soon after greeting Philocrates and Philopolemus (5.2), he sends them indoors and begins the questioning of Stalagmus. The narrative of the kidnapping of the younger son soon unfolds (5.2, 971ff.); Stalagmus confesses: he was the one who stole and sold him. “To whom?” Hegio asks. “To Theodoromedes son of Polyplusious in Elis, for six minas” is the reply. Hegio recognizes the name as that of Philocrates’ father and summons the Elean from his house. In 5.3, Hegio reports the new information, that his son had been sold to Philocrates’ father. The latter now takes up the questioning: “How many years ago?” he asks Stalagmus. “Twenty.” “A false recollection,” responds Philocrates. Stalagmus gives more critical information: his father had given him a four-year old boy to be his own when he himself was a little boy. The details catch Philocrates’ attention and he asks Stalagmus for the boy’s name: it was Paegnium at that time, but Philocrates changed it to “Tyndarus”. Further questions are posed by the Elean: why doesn’t 17 Syngraphus, Capt. 450, 506. The document that is sometimes translated “passport” (Lewis and Short) is a nice touch—a document of identification, perhaps useful for crossing war-torn areas. Brix and Niemeyer 1930 ad loc. compares Aristoph. Birds 1213ff. for ıijȡĮȖȓȢ and ıȪȝȕȠȜȠȞ; see Dunbar 1995, 619.

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Once again, as in Terence’s Andria, we have a scene with joint witness testimony—and a confirmation of a change in name. Stalagmus’ testimony about the kidnapping of a young boy from the Aetolian Hegio, the boy’s sale to an Elean for six minas, and the boy’s conveyance to another little boy, namely to Philocrates, needs the latter’s confirmation for the adult man’s identification; and that identification is sealed with Stalagmus’ revelation of the boy’s original and changed names. In the final scene of the play, Hegio greets Tyndarus upon his return from the quarry as his son: Salve, exoptate gnate mi (1006). Tyndarus is confused; Philocrates explains his new identity and presents him to his father Hegio.18 A similarly structured identification occurs in Plautus’ Menaechmi, another play for which the Greek original is unknown and which once again takes place outside of Athens, in Epidamnus. Unlike the identifications in the first two examples, the two in Menaechmi are a blend of recognition and identification—the original identity of each brother is reverted to rather than a new one freshly created: the Syracusan twin will regain his original name and the “Epidamnian” twin will return to his native city and leave behind his Epidamnian wife—in a subversion of a common comedic plot, reintegration here involves the end of a marriage rather than the initiation of one on the spot.19 The backstory is important: when the two were seven years old, their father, Moschus, left one twin, Sosicles, in Syracuse and took the other, Menaechmus, on a business trip to Tarentum; there the boy got lost in a crowd and a rich Epidamnian merchant carried him off; the boy’s father died of grief and the grandfather, learning the news, changed Sosicles’ name to Menaechmus (because, as the Prologue Speaker tells the audience, he so much loved the boy who never returned—and also because it was his own name). Meanwhile, the Epidaurian merchant adopted Menaechmus I in Epidaurus, and later gave him a richly dowered wife and also made him his heir. At the start of the play, some 20 years after the departure of Menaechmus I from Syracuse and after another six years of searching for him, Sosicles lands in Epidamnus along with his slave 18 Cf. Xuthus’ greeting to Ion when he exits the temple after learning that the first person he meets will be his son: ੯ IJ੼țȞȠȞ, ȤĮ૙ȡૅǜ ਲ Ȗ੹ȡ ਕȡȤ੽ IJȠ૨ ȜંȖȠȣ ʌȡ੼ʌȠȣı੺/ ȝȠȚ. (Eur. Ion 517f.). 19 For a recent study of this play (alongside Amphitruo), see Panayotakis 2020.

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Messenio. The twists and turns of the farcical plot (such as it is) depend on the mistaken identification of one twin for the other by various characters— by the wife and father-in-law of Menaechmus I, by the latter’s lover Erotium, by his parasite as well, by Messenio and a host of other characters—a doctor, cook, prostitute’s slave, and a staff of slave-flogging men. Finally, in the last scene (5.9), and at rather too great a length, Messenio, himself confused at first but gradually putting one and one together (1096-1099), enables the twins to identify each other—indeed, they become the witnesses of their own identities. Messenio asks questions and, beginning in earnest with sed nunc agite uterque id quod rogabo dicite (“But come now, each of you answer what I ask”, 1105), creates a proof of twinhood with a staccato-paced interrogation: MESS. “Is your name Menaechmus?” Men. “I admit it.” MESS. “Is yours the same?” SOS. “It is.” MESS. “Do you say that your father was Moschus?” MEN. “Yes, truly.” SOS. “Likewise in my case.” MESS. “Are you Syracusan?” MEN. “For sure.” MESS. “What about you?” SOS. “How not?”

An abridged articulation of the next bit of interrogation follows here (11111123), with Sosicles’ exclamations of delight omitted: Messenio to Men. I: “What is your earliest memory of your country?” Men. I: “When I went with my father to Tarentum on a business trip and I wandered away from my father and was carried off.” Messenio, to Men. I again: “How old were you when your father took you away from Syracuse?” Men. I: “Seven.” Messenio: “And how many sons did he have at that time?” Men. I: “Two.” Messenio: “Who was the older?” Men. I: “We were exactly the same.” Messenio: “How is that possible?” Men. I: “We were both twins.” Messenio: “Did you have the same name?” Men. I: “No, my name was the same then as now, ‘Menaechmus’; his was ‘Sosicles’.”

At this point, the twins begin to address each other directly—and names are once again all-important (1125-1134). Menaechmus I has now become the interrogator and asks the Syracusan twin how he came to be called “Menaechmus”? It was their grandfather’s doing, Sosicles tells him. Menaechmus I then asks their mother’s name. Sosicles responds, “Teuximarcha”. The name clinches the identity: “Yes, that’s right. Greetings, unexpectedly, I see you after so many years”. Sosicles responds with similar enthusiasm. The clustering of testimony for the identification/recognition at the end of the play once again points to a difference from the discrete scenes in Ion and OT that were discussed earlier in this chapter. The clustering, naming,

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and change of interrogator in Menaechmi 5.9 aligns the scene with Andria 5.4 and Captivi 5.3, three comedies quite different in their identification trajectories: in the Andria, a young woman thought to be a foreigner turns out to be of citizen birth and will marry her beloved; in Captivi, a young man thought to be a slave turns out to be a citizen—but there is no lover in sight; and in Menaechmi, the twins identify each other with the assistance of a slave—one reverts to his original name and the other allows his wife to be auctioned off. These differences make the similarities among the witnessing scenes all the more remarkable; and indeed, the one in Menaechmi could easily be played as a parody of all such scenes.

4. Witness testimony It was pointed out earlier that the scenarios of witness attestations in Ion do not have any convincing forensic link; for the summoning of witnesses in OT, on the other hand, some scholars have seen allusions to an Athenian procedure, an investigation (ȗȒIJȘıȚȢ) that relied on informers (ȝȘȞȣIJĮȓ) who lay “informations” or make “denunciations” (ȝȘȞȪıİȚȢ); R. G. Lewis (mentioned earlier) proposed that Sophocles used the procedure as a framework for the play.20 The proposal is attractive and a quick review of ȗȒIJȘıȚȢ is in order. In individual cases, the Athenian procedure may have been regulated by an initiatory decree when an extraordinary crime endangered the safety of the community and required a critical investigation—as, e.g., in 415, when the Boule was made autokrator (And. 1.15) in an investigation into the profanation of the Mysteries and mutilation of the Herms. Informers might be asked to come forward and examiners (ȗȘIJોIJĮȚ) elected to question them; rewards for informers might be offered and immunity (adeia) granted for their information, provided it was true (And. 1. 20); slaves and women might be permitted to give testimony. The investigation might lead to a trial or trials of varying type (e.g. an eisangelia or apagǀgƝ) on different charges (e.g., impiety, treason, murder)—or to no trial at all. Our main sources for the operation of the procedure derive from accounts of the impieties in 415 and from the trial of Agoratus, perhaps in

20 Knox 1957, 80-82 adds in the dike phonou; Greiffenhagen 1966, 150, sees resemblances to ȝȒȞȣıȚȢ but in the end thinks that Sophocles has looked to create a scenario that acts out a process existing in a period between private retaliation and official court punishment for homicide. Lewis 1989, 50-63, in addition to illustrating the way the procedure works in the play, offers a meticulous study of its use of the terminology of zetesis.

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399, after the overthrow of the Thirty in 404/03.21 Less well attested is the ȝȒȞȣıȚȢ of Menon against Pheidias in the 430s and most probably in 438.22 There is no evidence for its inaugural use; Menon’s ȝȒȞȣıȚȢ is the earliest known. The date of OT is not certain, and while a date for a first performance in the 460s is not impossible, a date in the 430s or 420s has seemed the likeliest.23 In other words, ȗȒIJȘıȚȢ and ȝȒȞȣıȚȢ will have been known to Sophocles and his contemporaries; the visibility of a framework for the procedure and the density of its vocabulary scattered throughout the play are not the result of a legal historian’s over-active imagination.24 A passage from And. 1 Mysteries, delivered in 400 or 399, can illustrate both a method of investigation that may share some similarity with Oedipus’ inquiry into the pollution at Thebes, the murder of Laius, and his own identity—and at the same time suggest a presentation of proof that may have something in common with the identification scenes in the Roman comedies under discussion. The passage (§14) presents Andocides’ oral questioning of Diognetus and the latter’s activity as a ȗȘIJȒIJȘȢ, a member of the board of examiners elected, some 15 years earlier, to hear the testimony of witnesses making denunciations (ȝȘȞȪıİȚȢ) about the profanation of the Mysteries:25 21 For ȝȒȞȣıȚȢ in 415: And. 1. 11-17, 34,35, 47, see MacDowell 1962 ad loc. and pp. 167-71; on adeia, see Esu 2020. For the trial of Agoratus (Lysias 13) and its date, see Todd 2000, 137-140 and 2020, 241-262. The events of 415 are also discussed by Maria Youni in this volume. 22 For Menon (vs Pheidias), Plut. Per. 31.2, and see Jacoby FGrHist 328 fr. 121 and Comm. pp. 394-395 with nn. 21 and 22; Ostwald 1986, 54 n. 210; Stadter 1989, 290291. Menon, according to Plut. Per. 31.2, was granted immunity for his testimony by a decree of “Glucon” (emended to “Glaucon” by Pareti, ref. in Jacoby Comm. p. 394 n. 20); Jacoby thinks Plutarch may have gotten the decree indirectly from Craterus. 23 Finglass 2015, 5. 24 Consider Hieronymus’ report (Wehrli fr. 31) in Lives of the Poets, Sophocles 12: Sophocles, after an informative visit from Heracles, informed (ਥȝȒȞȣıİ) the Athenians where to find a golden crown stolen from the Acropolis; for this he was awarded a talent, which he used to dedicate a shrine to Heracles Menutes (“Heracles the Informer”). If any shred of this is true, Sophocles will have known the technical meaning of menysis. On the other hand, there appears to be an investigation and menysis underway onstage at Ar. Ach. 204-224, produced in 425. 25 Hansen 1975, 79 n. 14 maintains that the word used to modify the men at And. 1.40, ઘȡȘȝȑȞȠȣȢ, indicates they were elected by the Assembly; but any civic group might “elect” officials: see, e.g., IG II 2 410.3 and 23, where the hieropoioi are those elected by the Boule (before 330); IG II 3 I 306.8, where the elected men are to copy the Boule’s decree onto the Boule’s dedication—surely bouleutai (343/2); “men elected” by demesmen: e.g. IG II2 1205.3-5 and SEG XXI 519.10-14 (both after the

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You were on the board of inquiry, Diognetus, when Pythonicus denounced Alcibiades before the Assembly?26 Yes. You know, then, that Andromachus laid an information about what was going on in Pulytion’s house? Yes, I know. And that these are the names of the men against whom he laid information? Yes.

The questions here do not duplicate the questions asked during the inquiry in 415; rather, Diognetus in 400/399 is simply asked to attest his earlier position as a ȗȘIJȒIJȘȢ along with the fact that Andromachus had informed on the activities taking place in Pulytion’s house and had provided a list of names that Diognetus is now asked to confirm. The events occurred 15 years earlier—did Diognetus rely on his memory—or had there been some documentation of Andromachus’ testimony in 415? Certainty is impossible; Andocides may have acquired the information from his own recollections and inquiries of Diognetus and other members of the board;27 on the other hand, lists of names may have been recorded in 415 and archived in the bouleuterion, as were decrees granting adeia.28

mid-fourth century). It cannot be proved, but it seems likely they were elected from the bouleutai, as the zetetai in 419/18 (Ant. 6.49). 26 For İੁıȒȖȖİȚȜİȞ here, Hansen 1975 cat. no. 11 n. 1 translates as “impeach” (for which “denounce” is a common synonym among scholars, e.g. Rhodes 1972, 187 and passim); MacDowell 1962 ad loc. suggests “report” or “give information” here, comparing Lys. 13.50, 56. Hansen’s interpretation is to be preferred. 27 It might be argued that Diognetus’ details (as well as those regarding the three other ȝȘȞȪıİȚȢ described in §§15-18) could have been recorded in writing by the secretary of the Boule or a member of the board of ȗȘIJોIJĮȚ in 415; after all, Andromachus’ testimony would have to be examined subsequently for its truth or falseness in order for his immunity (ਙįİȚĮ) to stand or lapse (And. 1.20, 65; cf. Lys. 6. 23 and 24). However, if this is so, then it is strange that Andocides does not ask for any document to be read, except for two lists of names; this may reflect the nonpreservation of such documents—or concealment on the part of Andocides (as MacDowell 1962, 167-171 interprets the material). 28 MacDowell 1962, 168 tentatively proposes that Andocides quotes from “official lists” for those denounced by Andromachus and Teucrus (1.13 and 15) but not for the names of those said to have been denounced by Agariste and Lydos (1.16 and 17). Andocides at 2.23 (the speech is only loosely dated to 410-405) says that the decree of Menippus granting him adeia in 415 can still be found in the bouleuterion; see Sickinger’s good discussion 1999, 82.

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In this same section of the speech, Andocides supplies details of three other “informations” about the Mysteries. Diognetus is only questioned about Andromachus’, but apparently his presence is a guarantee of the acceptability of the other three. The court secretary had been asked to read lists of names in the first two ȝȘȞȪıİȚȢ (§§13-15), but Andocides himself provides the names in the third and fourth (§§16-18). The fourth (the ȝȒȞȣıȚȢ of the slave Lydus) is the most interesting (§17): Lydus, so Andocides tells us, had informed against his father Leogoras as well as against other men; that information then inspired Speusippus to initiate trials against all of them. Andocides’ questioning of Diognetus and description of the four “informations” in §§11-18 is masterly; it serves as a concise and (seemingly) authenticated prelude to his argument, largely of probability, against his prosecutors that he could not have informed against his father (§§19-24).29 Rather than be diverted to speak of that argument, however, let us keep to §§11-18 and consider these sections as a “cluster of testimony” presented in a trial of 400/399—quite like the cluster of witness testimonies in a final or near final scene of the Andria, or Captivi or Menaechmi, but not at all like the witness testimonies of the informers in 415. In real time, the denunciations of 415 were not presented consecutively, each informer awaiting his turn in a queue, so that the first in line must finish before the second would begin his denunciation before the ȗȘIJોIJĮȚ. Rather, the decisions to call informers were made at different times, based on (we may presume) a constant flow of new information: Pythonicus had indicated in the Assembly that Andromachus, slave of Archebiades, knew something, the Prytanes brought him in, and a decree of immunity was granted (§12); at some point, a metic named Teucrus who lived in Athens but had fled secretly to Megara sent a message to the Council that he could give information about the Mysteries and the Herms, messengers were sent to Megara to bring him in, and a decree of immunity granted (§15). We must assume a similar procedure for the others. We do not know how much time intervened between the appearance of one and another, but surely it was not lickety-split. The procedure, mutatis mutandis, is much like that followed by Oedipus and his informants in OT—as Lewis had suggested in 1989. In OT, the testimonies of Messenger and herdsman are discrete, with an intervening scene—the men were not summoned at the same time (and the Messenger was not summoned at all); likewise, Creon and Teiresias were summoned at different times. In the comedies, however, the witness testimonies are clustered together in one scene. 29

See MacDowell 1962, 168-171.

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I have suggested that Andocides may have been able to consult the written lists of names and immunity decrees, but perhaps not the testimony of the informants; in that case, he will have himself constructed each of the four depictions of ȝȘȞȪıİȚȢ (§§11-18) from his own recollections and inquiries. But whether he consulted documents or reconstructed events from live witnesses or a combination of both, his genius was to put them together to create one summary cluster of four denunciations that would become the foundation of his argument in §§19-24 for the trial taking place in 400/399. We can see a similar procedure in Dem. 57 Against Eubulides. The speaker (Euxitheus) had been expelled from his deme Halimus during a review of the deme’s registry (a diapsephisis) as mandated by a polis decree in 346/5;30 he is now appealing that decision. Since deme membership is a requirement for Athenian citizenship ([Arist.] Ath. Pol. 42.1-2), essentially Euxitheus must prove that he meets the requirements of citizenship. Accordingly, he calls for many depositions to be read and witnesses to confirm them; indeed, seven depositions and eight witnessing groups confirming testimony are scattered throughout a speech of 70 chapters, and nine are densely packed into §§14-28.31 They are mostly the testimony of kinsmen, father’s kin on the paternal side (§21), father’s kin on the maternal side (§22), phratry and genos members (§23 attesting membership); deme and phratry members (§23 attesting election as demarch); kinsmen attesting that Euxitheus’ father was allotted office (§25); witnesses attesting that his father had never been accused of lacking citizenship (§27) and that his father had been buried in a genos plot (§28); testimony of kinsmen of the speaker’s mother (§§38 and 39), of phratry and deme members related to his mother (§40), of sons of his mother’s first husband and of his half-sister’s husband and son (§43), and of witnesses attesting that Euxitheus was allotted to serve as priest of Heracles and had passed his scrutiny (§46). In my enumeration, I have omitted three testimonies of a different sort: the first attesting the technical unfairness of the vote when he was expelled from the deme (§14); another, attesting his father’s citizen status to show that he was not a 30

Libanius’ hypothesis to the speech provides the name. Depositions “D” and Witnesses “W” in Dem. 57: 14 D, 19 D, 19 W, 22 D, 23 W and D, 25 D, 27 W, 28 D, 38 W, 39 W, 40 D, 43 W, 45 W, 46 W. For an overview of the evidence when the oral presentation of witness testimony was replaced by written depositions, see Edwards (this volume) and earlier treatments by Calhoun 1919 and Bonner and Smith 1930, 353-362. Whether a change to written testimony enacted by law occurred in 390 or 380 or 350, calls for witnesses thereafter may have been for the purpose of confirming evidence; however, the law, as Edwards attractively suggests in his conclusions, may not have included all types of trial; it may be that “status cases”, such as Dem. 57, may have been permitted witnesses to state their testimony rather than simply to confirm it. 31

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foreigner (§19); and finally, attesting his mother’s service as a wet nurse as nothing to be ashamed about (§45). I quote the second one of these for its flavour, a variant, perhaps, of a narrative of displacement: So I will provide witnesses first that he was captured and returned safely; then, that on his return he got a share of his uncles’ property; and further, that no one ever accused him, not among the deme members, not among his phratry members, nor anywhere else, of being an alien on the ground that he spoke with an accent. [To the clerk.] Please take the depositions.32

One feature of the testimonies in Dem. 57 is that almost each and every one of them appears in a cluster—that is, the speech is interrupted for multiple attestations for discrete pieces of testimony—thus there are four witnesses in §21, two in §37, and possibly four in §39. Each of the attestations, then, represents a cluster of witnesses—this is not unusual; what is unusual is the number of clusters (though appearance may belie the actual number of witnesses).33 Indeed, the witnesses who deposed the testimonies appear so numerous and their testimony so suggestive of grand univocal support, there would seem no need for further addition.34 Nonetheless, the speechwriter has added a masterly stroke at the end of the speech: rather than listing, in pedestrian manner, all the witnesses once again, he instead enacts the interrogation of a scrutiny for the office of a thesmothetes, becoming the interrogator of himself. In this way, Euxitheus is able to combine all the clusters of evidence that had been dispersed throughout the speech into one final cluster of testimony that summarizes and clinches his identification as a citizen.35 32

Trans. Bers 2003. Cf. Isae. 3 Pyrrhus: depositions are read on 10 occasions (and sometimes repeated, as in §§14, 53, and perhaps 15); clusters appear at §§13, 14 (double), 53 (double), 76, 80. That the appearance of so many depositions may belie the actual number, see Humphreys 1985. 34 Nonetheless, we do not know the verdict, and there may be flaws in the argument; see Humphreys 1986, 62. 35 Cf. Dem. 43 Macartatus. The presentation of testimony is quite interesting (even with the proviso that we cannot rely on their transmitted texts). All but the last are presented to identify relationships in the oikos of Buselus: one deposition in §31; probably five in §§35-37; five in §§42-46; multiple depositions of “neighbours and others” in §70 about intrusions onto the contested property. §§48-49 round off the depositions about relationships with the speaker’s condemnatory hypothetical interrogation of his opponent Theopompus (§48) followed by the favourable interrogation of the minor, Eubulides (III) in §49. Once again, we see a logographer summarizing clusters of testimony for ease of comprehension, through the performance of an interrogation (anakrisis)—a brilliant method, but somewhat 33

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Does this sound familiar? It should. It is the method followed by Andocides when he combined the depositions of §§11-18 into a brilliant argument that he could not have informed against his father; it is a highly sophisticated and rhetorical manipulation of testimony. Demosthenes has thoroughly learned the skill and taken it a step further with his enactment of an interrogation. And it is the very method, I submit, used by the playwrights of Graeco-Roman New Comedy who reserved their citizen identifications or status identifications for the penultimate or last scene of their plays, picking up the hints of attestations earlier on, but combining them into a cluster for the final irrefutable ending. It was the way it was done; it was, if one steps back and looks at the unfolding of testimony carefully in each of the comedies discussed here, the performance of a rhetorical argument on stage. At one time, it must have been a novelty; if the identification scene in Terence’s Andria does represent more or less Menander’s original, I would propose that it was still a novelty at that time—for however long or short that lasted. Clearly the ending had become fossilized in Menaechmi (and in Curculio as well); but it could still, for all that (even because of that), be comical. Shakespeare, we all know, doubled the twins—one set was not enough in the Comedy of Errors.

clumsy in the hands of this speaker. For arguments against Demosthenes as author of this speech, see Scafuro 2011, 138-139.

CHAPTER 18 OATH AND TORTURE IN THE “DOLONEIA” DAVID MIRHADY

Over a number of years I have been interested in the use of “proofs” (pisteis) in Athenian law during the time of the orators, particularly the use of slave torture and the swearing of oaths.1 Witness testimony (martyria) was the gold standard for such proofs, but in Athens only free adult males could supply it.2 However, there were also many challenges (prokleseis) to both oath and torture, litigants reporting in court how they challenged their opponents to resolve their disputes either on the basis of a statement made on oath, either by one or both of the litigants or by a third party, or on the basis of a statement elicited from a slave under torture. The challenges were refused or in some other way frustrated, and so the cases came to a law court, where speeches were presented. However, the arguments that were formulated about such torture and oath became stock in trade of rhetorical teaching, as well as of law court speeches themselves. They reveal a great deal about, for instance, the Athenian rationale for slave torture, which was integral to their democratic ideology and appears in many speeches, in comedy, and in tragedy.3 Arguments about oaths also reveal information both about religious piety and about women, whose oaths could be taken but who could not appear as witnesses in democratic law courts. In a recent paper I attempted to trace the basis for the Athenian rationale for torture further back, to the early fifth century.4 I examined both Prometheus 1

Mirhady 1991a; 1991b; 1996; 2000a. Mirhady 2002. 3 These two phenomena, oath and torture, form part of the canon of documentary evidence that was used later, in the ancient Athenian courts, and discussed in the rhetorical handbooks of Aristotle (Rh. 1.15) and Anaximenes (Rh. Al. 17-18). For tragedy, see Mirhady 2004. 4 Mirhady 2021. 2

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Bound and the “democratic” account of the torture of the tyrannicide Aristogeiton in Athenaion Politeia 18. There not slaves, but a god (Prometheus) and a free Athenian are tortured, both as punishment and in attempts to elicit information. Those texts prove consistent with later oratory and drama, in which Athenian democratic ideology dictates that slaves lie unless tortured, but that if tortured under the right conditions, tortured slaves are the surest guarantee of truth.5 These earlier sources reveal the flipside of this rationale: as an avatar of the free Athenian democratic citizen, Prometheus endures torture without revealing the sought for information, and Aristogeiton, the noble proto-democrat and tyrannicide, actually lies when tortured in order to spite and mislead the tyrant Hippias. So democratic ideology clearly dictates that free people not be tortured partly because torture did not work on them, and in one of its earliest acts the Athenian democracy actually adopted a decree that forbade it.6 In this chapter I wish to examine a still earlier text, the “Doloneia” of Iliad 10, in which the Achaeans and Trojans both send out night-time reconnaissance missions that lead finally to the massacre of the Thracian king Rhesus. The text is generally agreed to be post-Homeric—it can easily be removed from the Iliad’s plot—but it is nevertheless also agreed to be pre-classical, and so pre-democratic.7 It offers both an oath-challenge and what we might call a “forceful interrogation”, which suggests that its author is already employing what were to become staples of both Greek society and Greek storytelling.8 The Trojan Dolon challenges Hector to swear an oath that Dolon will get Achilles’ horses and chariot in exchange for his espionage, and Odysseus and Diomedes subsequently capture and forcefully interrogate Dolon, who reveals everything. Hector’s oath is admittedly not an evidentiary oath, as in later forensic oratory, but a promissory oath. Still, the principles are much the same, since it results from a challenge. And the interrogation does not quite employ torture: there is no whipping or use of the rack. But Dolon is questioned by Odysseus at the end of Diomedes’ sword, and he is in absolute terror (Il. 10.374-446). Like the slave in the classical context, who is made to believe that the pain of the torture will stop once the truth is revealed, he is made to believe (albeit falsely here) that the truth will set him free of his fear. So these situations are not quite the same as the Athenian, but there are parallels. 5

The magisterial work of Gerhard Thür 1977 is still the fullest account. The so called “decree of Scamandrius” (And. 1.43), c. 510-509. 7 I do not intend to discuss the authorship of the “Doloneia”. 8 On oaths, see Sommerstein and Torrance 2014; on the “Doloneia” see most recently Duffy 2020. 6

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The Rhesus, a Euripidean dramatization of the “Doloneia”,9 depicts neither the oath nor the interrogation.10 Rather than dramatizing so much involving Dolon, the play focuses on Hector’s tragic decision to send out the hapless spy, which reverses the good fortunes of his recent victories (Rh. 579) into the massacre of his ally Rhesus and recriminations against Hector and the Trojans. Where he does appear, Dolon manoeuvres a great deal in negotiating his compensation for the espionage (Rh. 154-181), but he does not demand that Hector swear an oath (182-183). Through Dolon’s elaborate manoeuvring, however, the play actually seems to be highlighting its avoidance of the oath-challenge while simultaneously acknowledging the significance of Dolon’s demand to get Achilles’ horses. Similarly, although it is clear that in the Rhesus Diomedes and Odysseus do kill Dolon after getting information from him, including a password (Rh. 591-592), it is not the critical information that allows them to kill Rhesus—Athena supplies that (595-607)—so the audience misses out on the throw of Diomedes’ spear and the baring of his sword, as well as his dispatching of Dolon’s head, all admittedly difficult on an Athenian stage. Of course, Dolon also does not appear cowering in fear. But the fact that the goddess becomes the source for the information critical for Odysseus and Diomedes again highlights the importance of the Homeric interrogation scene that the play avoids. So, although these elements become staples of Greek society and literature, the fact that they are actually avoided in the play from the classical period calls for explanation. In the “Doloneia” Dolon insists that Hector swear a promissory oath: But come, raise your sceptre and swear to me that you will give me the horses and the chariot in decorative bronze, horses that bear the peerless son of Peleus. And for you I shall be no vain scout, falling short of expectation. (Il. 10.321-324)

The demand is outlandish:11 Hector is the commander in chief after all, and the fracas caused by the arms of Achilles after his death—the tragic strife between Ajax and Odysseus—indicates how significant Achilles’ chariot and horses could be. When Hector swears the demanded oath, however, it is described as an epiorkos (10.332), the word normally used of a false oath 9

I will not discuss its authorship. See the recent commentaries of Liapis 2012; Fries 2014; Fantuzzi 2020. 10 Ironically, Hector later swears an oath unilaterally that whoever is responsible for Rhesus’ death will be tortured and beheaded (Rh. 816-819). So oath-swearing, torture, and beheading, all elements of the “Doloneia,” are mentioned. Hector’s oath elicits an oath in response from the Chorus, that it is not responsible (Rh. 826-832). 11 Hainsworth 1993, 187 calls it “a fatuous piece of vainglory”.

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or perjury.12 That creates an interpretive problem inasmuch as it seems strange to attribute perjury to a character otherwise as morally unblemished as Hector. And in fact Hector does not swear anything false: Hector took the staff in his hands and swore to him: “Now let Zeus himself, the loud-thundering husband of Hera, observe that on those horses no other Trojan shall mount, but I declare, you shall pride yourself forever.” So he spoke and thus swore an unsound oath (ਥʌȓȠȡțȠȞ ਥʌȫȝȠıİ); and he roused him up. (Il. 10.328-333)

Hector swears no other Trojan will mount the chariot, and none ever does. But that is not how the oath is understood by Dolon, or anyone else. The meaning of “pride yourself” (ਕȖȜĮȧİ૙ıșĮȚ) is ambiguous: it does not require that Dolon have the horses. It is possible that epiorkos refers to this equivocation, but the poet does not draw attention to it. In the Rhesus, Hector does not swear an oath to Dolon. A careful reading of the Rhesus passage (149-194), where Hector agrees to give the chariot and horses without an oath, suggests a better understanding of oath, perjury and the oath-challenge in the earlier text, particularly if it is read as an explanation and critique of the “Doloneia”. Such cultural phenomena seem to have long continuity in Greek culture,13 even if, in the “Doloneia”, we are seeing them in a very nascent form. In the Rhesus, Odysseus and Diomedes follow an errant lead from Dolon, which takes them only to Hector’s empty camp (Rh. 574-576), and even then they might be satisfied only with having killed Dolon and returning to their camp with his equipment (591-593), but Athena intervenes. In the “Doloneia” Odysseus and Diomedes pray to her at more or less the same point in the story (Il. 10.462-464; cf. Rh. 274-295), which gives the playwright occasion to make the substitution. However, the heightened role the Rhesus then gives the goddess suggests problems with the interrogation that led to its disappearance from Rhesus, problems that go beyond the dramaturgical, since Diomedes’ spear throw and Dolon’s beheading might have been reported even if not shown on stage.14 By the classical period, 12

Epiorkos meaning perjury/false oath: Il. 3.279, 19.260; Hes. Op. 282, Th. 232. Attempting to explain this passage, LSJ suggest, “he swore a bootless oath, i.e. one which he meant to fulfil, but the gods willed otherwise”. Later, Lys. 10.17 argues that in an archaic law the term ਥʌȚȠȡțȒıĮȞIJĮ is equivalent to ੑȝȩıĮȞIJĮ, clearly indicating that that is not how the word is normally understood. 13 See Mirhady 1991a. 14 Davidson 1979, 61-63 details the “Pindaric” or “oracle” version of the story, based on scholia on 10.435 of the Iliad, in which Athena and Hera take a more active role.

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status distinctions have hardened: the forceful interrogation of Dolon as a free man and his weakness in succumbing to it might have appeared offensive, even though he is a distasteful character and the Athenians may have been less squeamish about the torture of free non-citizens, at least in contexts of national security. In the play the character of Dolon is also different; he is more calculating, as appears in his negotiation with Hector. We learn, twice, that he revealed to Odysseus and Diomedes the Trojans’ night password (Rh. 573, 688; cf. 521), besides directing them to Hector’s camp (Rh. 575). But it seems as if the password was simply overheard and not educed by interrogation (ǻȩȜȦȞȠȢ ȠੇįĮ ıȪȝȕȠȜȠȞ țȜȪȦȞ, 573; cf. Il. 10.207: IJȚȞȐ ʌȠȣ țĮ੿ ijોȝȚȞ ਥȞ੿ ȉȡȫİııȚ ʌȪșȠȚIJȠ). Whether he was tortured is left open. Seemingly in place of the interrogation scene Rhesus supplies a choral song invoking vain prayers to Apollo for Dolon’s success (Rh. 224263). Unlike the references to torture in the democratic law courts, which generally result from refused torture-challenges in which both sides were to participate in the torture, the torture of Dolon in the “Doloneia” is unilateral, as it is in most poetic contexts (such as Sophocles’ Oedipus the King 11521157). In the forensic situation the participation of both sides prevents the slave from just saying either what the owner or what the torturer (the nonowner) wants (or so Athenian ideology seems to have thought). But that is not a concern for a poet, who makes clear that the unilateral torturer wants the truth, as Diomedes and Odysseus do. Also unlike the forensic, evidentiary torture, the torture of Dolon is more open-ended. Its goal is not to affirm one side’s version of events or the other’s. It is not even like Prometheus’ torture, which is after a specific piece of information. It seeks whatever Odysseus and Diomedes may find useful, starting with Hector’s whereabouts (Il. 10.406-411). Moreover, rather than the infliction of pain, the “Doloneia” substitutes Diomedes’ threat, and so Dolon’s fear, of death. An understanding of the forceful interrogation of Dolon as a precursor to the Athenian basanos of slaves must take into account the similarities and differences between him and the ideologically constructed character of slaves that supported the Athenian rationalization of their torture. The differences made the presentation of his torture in Rhesus too problematic. At the same time, an understanding of Dolon’s status in the “Doloneia” must also allow for his oath-challenge to seem plausible, but not an oathchallenge in the Rhesus. The beginning of the “Doloneia” is largely built on balanced treatments of the Achaean and Trojan camps and their leaders’ efforts to recruit spies.15 15 As Agamemnon scans the scene at the very beginning, however, his fellowcommanders are asleep (Il. 10.1-2), while the Trojan camp is very active, with fires

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But in one regard the treatments are quite unbalanced. On Agamemnon’s behalf Nestor easily recruits the best possible spies for the Achaeans, Diomedes and Odysseus (Il. 10.218-253).16 Five other first-rate fighters volunteer as well (10.228-230). On the Trojan side, however, Hector has no such luck. No Sarpedon or Aeneas or Paris steps forward—they are all silent (10.313). Only the hapless Dolon raises his voice (319-327).17 A repeated text seems to underline the contrast by having both Diomedes and Dolon use the same formulation: Nestor/Hector, my heart and proud spirit urge me on. (Iliad 10.220, 319)

In some ways Dolon seems a Trojan counterpart to Thersites, the Greek upstart of Iliad 2, especially as he speaks in Rhesus. Both receive unflattering physical descriptions that seem to reflect their moral shortcomings: (Thersites) was the ugliest man to come to Ilium: bow-legged and lame in one foot; both his shoulders rounded over his chest, and above them a pointy head with thin stubble. (Iliad 2.212-223) (Dolon) was truly ugly to look at, but swift of foot. (Iliad 10.316)

Odysseus addresses Thersites as one of a group of men who are unsuited to war and weak, and so they should follow those who are “better” (2.201). Homer describes Thersites in particular as having measureless and disordered speech (2.212-213). He lacks a patronymic, suggesting that he is not a noble. However, Dolon is said to be the son of Eumedes, a wealthy herald (Il. 10.314-315).18 The point of his description, however, seems to be that although he is not as ill-suited to fighting as Thersites, as the son of a burning and pipes playing (Il. 10.12-13). This divergence does not play a role in the later narrative, though it might have. Dolon might, for instance, have been backlit by the Trojan fires and so more easily seen, but that is not mentioned. 16 They somewhat anticipate their role in stealing the Palladium from Troy (Paus. Attic. į 14), which Rhesus actually puts earlier (501-09, 710-721). 17 In the Rhesus even the idea for what turns out to be Dolon’s mission is attributed not to Hector, as it is in the “Doloneia”, but to Aeneas. In the “Doloneia”, Menelaus is first to suggest to Agamemnon the recruiting of a spy (Il. 10.37-38). 18 Heralds serve as messengers, and also as servants (Il. 1.320, 2.184-185) and assistants in quieting a crowd (2.280). Talthybius is there to receive a prize Agamemnon does not want (23.596), which suggests a source of Eumedes’ wealth. Gods also sometimes take the form of heralds (2.280, 17.322). Talthybius and Idaeus are described as knowledgeable (7.274-278), so being of herald stock does not imply lack of intelligence. However, Priam is told to take an older herald when he goes to supplicate Achilles (24.179), and true to form the old man panics when he sees Hermes (24.356).

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herald, Dolon is likewise not a real noble, a fighter—he is only rich—and he is both motivated by material rewards himself and likewise thinks that his father’s money will allow him to get his way (cf. 10.380-381).19 Unlike Thersites, who is lame (2.217-218), Dolon is “swift-footed” (10.316), which would actually be useful for a herald, or a spy, or a coward. He shares the epithet with Achilles, whose chariot he covets, though that seems coincidence—Achilles’ swift-footedness is never made part of the Iliad story—as well as with Hermes (Bacchylides 19.30). It makes some sense that as the son of a herald Dolon comes from stock that crosses borders, both to deliver information, obviously, but also, no doubt, to collect it, surreptitiously.20 So he has the genes of a spy. Like “Astyanax”, Dolon’s name may reflect an aspect not of his own but of his father’s character. His father Eumedes himself is named “good cunning”, and that seems relevant for a spy as well. Like their patron god Hermes, heralds must sometimes be accused of tricks, as is clear in Rhesus (216-218). Dolon is also described as an only son with five sisters (Il. 10.317), the implication perhaps being that he is a sissy, though Orestes has three sisters and escapes that implication. In the Iliad the proper heroic motivation is glory (kleos). The entire epic largely turns on the idea that material reward (geras) should only be a secondary compensation. When Nestor announces the need for a spy, for instance, the compensation he suggests is “great glory” (10.212-213) and, secondarily, a black ewe with lamb from each leader (10.214-216), which seems almost a token acknowledgment (Il. 10.212-217). Dolon mistakenly believes that he will derive glory from Achilles’ chariot, but he has things reversed, thanks to Hector, who starts by offering as reward a chariot and the best pair of horses in the Achaean camp (obviously Achilles’) and then says that glory would be attached to it (10.307). The author of Rhesus seems to engage directly with this issue through elaborate manoeuvres between Hector and Dolon which, since the play seems obliged to report the same general facts, result eventually in the demanded compensation being again Achilles’ chariot and horses. In the 19 Davidson 1979, 64 emphasizes Dolon’s wolf costume and associates it with the Arcadian cult of Zeus Lycaeus. But the mention of the wolf costume is very brief, and includes a ferret cap (Il. 10.334-335), to which no one seems to give cult significance. The costume seems to underline rather that Dolon is un-military, so his aristeia is odd, especially when contrasted with his opponents’, who use borrowed weapons. Hainsworth 1993, 186 notes that both Thersites and Dolon are described as ugly because they are “intended to be despised”, and 189 that “Dolon takes no corslet and neither sword nor shield”. 20 Virgil, Aeneid 12.346-352, gives a very complimentary account of Dolon.

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play, however, both Hector’s initial call for a volunteer and Dolon’s initial response are couched in terms neither of glory nor of material reward, let alone a provoked “heart and proud spirit”, but patriotism. Hector: What Trojan present in discussion volunteers to go spy on the Argive ships? Who would be benefactor of this land?21 Who says yes? I obviously cannot myself be servant to my country and allies in everything. Dolon: I am willing to run this risk for my country and go to spy on the Argive ships. (Rh. 149-154)

Hector then suggests glory (Rh. 159), before Dolon, in explicitly transactional terms, demands payment for the espionage in specific material compensation (Rh. 157-158). Patriotic lip service complete, Homeric honour ignored, Dolon’s demands are those of the democratic wage worker. Hector: Your father’s house was glorious before, but now you’ve made it doubly so. Dolon: Surely then, while work is necessary, it’s also worthwhile for the worker to receive a wage. In everything, when profit is attached, the work brings twice the reward. (Rh. 159-163)

Hector seems bemused. “Yes,” he says, “that’s also just, and I don’t say otherwise” (Rh. 164), but it seems he would like to say otherwise. That is, Hector’s initial position, of patriotism and “doubled” (Rh. 160) glory, should be motive enough for Dolon. But Dolon retorts that material compensation “doubles” his motivation to do a good job. Hector then seems subtly to point out their asymmetrical status by challenging that Dolon can have anything, except Hector’s kingship of the city (Rh. 165). That is, Hector is commander (tyrannos) and Dolon should not be dictating terms to him. Dolon ignores that point as well, while admitting he does not want Hector’s power (Rh. 164-165; cf. 198). Hector then offers a marriage tie, again subtly eliciting admission from Dolon that they are not equal in family status (Rh. 167-168). Dolon then rejects Hector’s offer of gold since he is already wealthy (Rh. 169-170), and he wants nothing else that comes from Troy (Rh. 171). So much for what is actually in Hector’s control. Hector says he is not willing to promise—and Dolon does not want—the Achaean commanders either as captive slave workers or for ransom (Rh. 173-178), and he refuses any other geras from the Achaean camp (Rh. 181). I count altogether seven different proposals 21

Fantuzzi 2016 discusses the centrality of euergasia.

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by Hector and rejections by Dolon. He is a dogged negotiator. It all seems a very roundabout way of focusing attention, even criticism, on what the “Doloneia” makes Hector’s initial offer and Dolon’s demand. The Rhesus highlights the asymmetry of status between the two men and Dolon’s single-minded intransigence, which make it inappropriate for Hector to swear a promissory oath to Dolon, and which may also account for why it is called an epiorkos in the “Doloneia”. It is not so much that Hector believes it very unlikely that he will be in a position to fulfil the spirit of the oath, but that the asymmetry makes the swearing of it unsound. The play draws attention to the avoidance of epiorkos. After reacting somewhat incredulously to Dolon’s demand with a response similar to Odysseus’ when he hears about it in the “Doloneia” (Il. 10.184-188, cf. 401-405), Hector says in Rhesus that he will not lie: he will give Dolon Achilles’ chariot team (Rh. 189-190). The words “I will not lie; I will give” (ȥİȪıȠȝĮȚ: įȫıȦ) seem a pointed avoidance of the “Doloneia’s” “so he spoke and so swore an unsound oath” (੬Ȣ ijȐIJȠ țĮȓ ૧ૃ ਥʌȓȠȡțȠȞ ਥʌȫȝȠıİ, Il. 10.332; cf. 10.321-323: ȝȠȚ ੕ȝȠııȠȞ … įȦıȑȝİȞ [“swear to me … you will give”]). Hector’s language in Rhesus is more that of the verbal contract than the Homeric promissory oath. In an Iliadic oath-challenge that is the inverse of this one in terms of asymmetrical status, Menelaus challenges Nestor’s son Antilochus to swear that he did not “willingly (and) by guile” (ਦțઅȞ … įȩȜ૳) hinder his chariot in the funeral games (Il. 23.581-585). In refusing that oath, Antilochus cites that Menelaus is anax, that he is “older”, and that he is “better” than himself, citing three different markers of status (Il. 23.587-588). The passage suggests that Antilochus’ oath would have been an epiorkos on the basis of status alone. Xenophanes’ saying that the challenge of an impious man to a pious man is unfair seems the simplest formulation of what seems the basic idea (Arist. Rh. 1.15.29, 1377a23-24). There are different ways of expressing status difference, “pious and impious” being just one. The disastrous consequences of Hippolytus’ oath to the slave Nurse in Euripides’ play offer further evidence for this idea (Eur. Hipp. 611-612). Although as a noble Hippolytus abides by his oath, the Nurse herself, who has not sworn, does not abide by the conditions of secrecy according to which Hippolytus swears. Instead, she tells Phaedra, and that leads to trouble. Likewise in the “Doloneia”, although Dolon does not swear an oath, implicit in his demand for Hector’s oath is that he will dutifully perform the role of a spy. He explicitly commits to getting information (10.324-327), but spies are also implicitly supposed to keep their mouths shut if captured. The Athenians allowed free women to swear oaths, because they believed women understood the consequences of perjury in ways slaves could not,

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even if, like Phaedra, they could be overwhelmed by their emotions. Dolon does not have the fortitude. Moving on to the interrogation scene: for our purposes in trying to flesh out a pre-democratic understanding of the sort of person who might be a source of information through torture or intimidation, Dolon seems to offer several important characteristics. Neither the “Doloneia” nor the rest of the Iliad allow many insights into the character traits of slaves. First, Dolon’s father’s wealth and role as a herald may allow Dolon to move and speak among the elite—so like a slave in classical times he knows things22—but he is not really of elite status, as he admits in Rhesus. On the Achaean side, in “Doloneia” Agamemnon directs Diomedes not to choose his spying companion on the basis of birth (10.238-239). But both Diomedes and the other volunteers are in the first rank of Achaean fighters, behind Achilles. Every one of them is a king in his own right, and any one of them could have intermarried with Agamemnon’s family. A marriage tie is something Agamemnon offers Achilles (Il. 9.145). However, as his wolf costume reveals, Dolon is no fighter at all. Second, Dolon’s ugliness appears an outward sign of his moral weakness, again a characteristic of slaves (Il. 10.316). But, third, seemingly in contrast to his ugliness, Dolon is said to be swift-footed. Besides being seemingly a trait in a family of heralds, this characteristic is actually needed for the story since it appears that Dolon would be capable of outrunning Diomedes and Odysseus were he not terrified by Diomedes’ spear throw. At any rate, the narrative seems devoted to a thorough portrayal of Dolon’s character that makes plausible his actions both in demanding an oath from Hector and in surrendering critical information when threatened with death. His character is not quite that of a slave, but it is nowhere near on a par with the leading fighters. If the night of espionage can itself be understood as a specific agon, as a later legal contest is also an agon, then the forceful interrogation of Dolon may be seen as akin to an agon-deciding form of basanos. As disputants, Agamemnon and Hector have delegated to Odysseus, Diomedes and Dolon, and the two Achaeans decide to resolve the contest by getting critical information, by force, from a lower-status individual.23 There is never a 22

The herald Medon overhears the Suitors’ plans (Od. 4.677-679, 16.412). Apollodorus, Epit. E 5.9-10, reports that when captured by Odysseus, the noble seer Helenus was forced (ਕȞĮȖțĮȗȩȝİȞȠȢ) to reveal prophecies to the Achaeans. As a son of Priam, Helenus is clearly noble (Soph. Phil. 604-613), but the circumstances of the compulsion are not made clear. Sophocles only says that he was captured. Apollodorus also says that he left Troy after losing out to Deiphobus in getting Helen after Paris’ death. So he had reason to resent Troy. 23

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question that Dolon might try to defend himself as an actual fighter. There are very few records of an actual basanos procedure from the classical period, but those that exist indicate a pattern according to which the slaves at first lie in support of their masters. The immediate bodily discomfort of the basanos then leads them to change their allegiance to the person who can make the discomfort go away. There are only those two choices. What actually happens during Dolon’s interrogation is thus of great interest. Odysseus sees Dolon, speculates that he may be a spy, and devises the stratagem to allow Dolon to go by them, so that he and Diomedes will be between Dolon and the safety of his own lines (Il. 10.340-349). Dolon’s description as swift-footed comes into play as Odysseus anticipates that they will not be able to run him down, but that a spear throw will stop him. Homer seems unfair in saying that Dolon “thoughtlessly” (ਕijȡĮįȓૉıȚȞ) runs quickly by Odysseus and Diomedes as they lie still, pretending to be corpses (10.350). Perhaps the word means as little as that he lacks awareness of them. His goal, after all, is to reconnoitre the Achaean lines, not to check whether every corpse on the battlefield is actually dead. Then, after hearing them pursue him, Dolon stops, hoping his pursuers are his own friends (10.355-356). That really does seem thoughtless inasmuch as he has only just been sent out. Dolon draws several such false inferences. Earlier in the narrative, Nestor sets out the goals for the Achaean spies: either kill a straggler or ascertain some report about Trojan plans (10.205210). Odysseus and Diomedes do both, in reverse order. When Diomedes purposely misses with his spear, Dolon stops still again, inferring correctly this time that Diomedes could have killed him but wants to keep him alive (for the moment). The fact that Diomedes only has that one spear to throw (10.178), or that Dolon could escape if he just kept running, is never raised, aside from Odysseus’ earlier concern that Dolon may outrun them (10.346). They hem him in between themselves and the Achaean line (10.363-364). No mention is made here that Odysseus has a bow and arrows (10.260). In their first verbal exchange, Diomedes demands that Dolon stop running or else he will kill him (10.370), and Dolon is terrified. The poet takes more than two lines to express how utterly frightened Dolon is (10.374-377). The point is that Dolon believes that by stopping he is implicitly agreeing to Diomedes’ condition: he will not be killed if he stops. Dolon then requests to be taken alive and ransomed, the typical battlefield supplication (10.378-379).24 Odysseus tells him to buck up, not to think 24 When Menelaus takes Adrastus prisoner, he hears out the latter’s battlefield supplication and is on the point of honouring it before Agamemnon insists that no prisoners be taken (Il. 6.45-65). Achilles likewise explains that he did take prisoners until Patroclus was killed, but no longer (21.100-105). That scene suggests that

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about death, but to give precise answers to Odysseus’ questions (10.383384):25 is he on his own, freelance, or following Hector’s orders (10.385389)? Again, Dolon incorrectly infers an agreement: if he gives the answers, he will be allowed to live (and be ransomed). He misreads the situation and Diomedes’ and Odysseus’ bad cop/good cop routine. Odysseus shows not the slightest interest in ransom. He wants information, just as Dolon himself is supposed to be after information. Dolon should realize that once he gives the answers, he will be of no more use. So, he must either withhold the answers until he comes under the control of someone who is interested in ransom, or come up with some other plan that will keep him alive. Dolon does suggest later that they tie him up while they go and check out his story (10.443-445), but nobody suggests that there is any rope available for that purpose. If, like the tyrannicide, Aristogeiton, Dolon realized that his life is forfeit at that point anyway, he might lie. But in his fear, like the tortured slave, he believes that the truth will set him free. It is important to emphasize, as Homer does, just how frightened Dolon is. His fear and, I would argue, his moral weakness lead to bad decisions. He is demonstrating characteristics that will later be associated with slaves. Ironically, it is Odysseus in the Cyclops’ cave who provides a model for what Dolon might say and do under threat of death. Not until the Cyclops disdainfully rejects Odysseus’ supplicant (and entirely truthful) plea for hospitality with the threat of death (Hom. Od. 9.272-280) does Odysseus start lying (“with tricky words” [įȠȜȓȠȚȢ ਥʌȑİııȚ], 9.282), first about his ship (9.283-286), and later about his name (9.365). Until that point he is the noble Greek, speaking the truth. Of course, he has to lose several men and employ the stratagem of Maro’s wine, the stake in the Cyclops’ eye, and the sheep conveyance before he and his remaining men escape from the cave. But his initial lie, about the ship, saves his men there. The lie about his name, which plays such a huge role in the plot, seems somewhat gratuitous. Dolon’s response to Odysseus reveals that his loyalty has already changed, like that of a slave who is tortured unilaterally by his master’s opponent. Homer reiterates how frightened Dolon is. Dolon claims that Hector has misled him by agreeing to give him Achilles’ chariot and horses (Il. 10.391-399). Dolon actually lies here, denying his own responsibility, but Odysseus sees through it. Dolon’s supplication is initially not entirely unreasonable even if it has little chance of success given the Achaeans’ no prisoners policy. 25 After slaughtering the Suitors, Odysseus also tells the herald Medon to buck up (șȐȡıİȚ), since Telemachus has already advocated for him (Od. 22.372). Medon is, of course, spared.

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Odysseus’ second question to Dolon is about the whereabouts of Hector, a question not about Dolon himself, which, one might argue, he has a right to divulge, but about the Trojan leadership, its position during the night, and its planning (Il. 10.405-411). All this is strategically critical information and in revealing it Dolon would seem to become a traitor. In fact, he says very little about the Trojans themselves, that is, little that exposes them to attack: Hector is deliberating with his counsellors, and the Trojans have posted the necessary guard (Il. 10.414-418). However, Dolon then also reveals that their allies rely on the Trojan guard because they are not defending their own homes (10.421). In the storytelling, the poet begins in this nuanced way to suggest resentment, a rift between Trojans and the allies, which will lead to Rhesus’ death. (It is manifest in Rhesus.) Odysseus seizes on it, asking very briefly about the allies’ location. Dolon seems to think that he is diverting Diomedes and Odysseus from the Trojans by elaborately describing the allies’ positions and in particular the Thracians and Rhesus’ chariot and horses (10.432-441). And with that he signals that he thinks he is done: they should either take him to their ships or leave him tied up (10.442-445). Of course, they kill him instead, following Agamemnon’s take no prisoners policy. Odysseus and Diomedes feel just as confident that Dolon has spoken the truth as Athenian ideology dictates that slaves tortured as a result of a basanos challenge do. In Rhesus, however, although his use of the password is overheard, the free Dolon only gives the useless information about Hector’s camp (Rh. 575), which he knows from the Trojan assembly that Hector is not occupying. Rhesus’ Dolon says nothing about Rhesus. The play from the classical period presents a much less culpable Dolon. Oath-challenges and slave torture become commonplace in classical culture, frequent mechanisms of dispute resolution guided by democratic ideology. In literature they become standard plot devices, which serve to focus attention on certain critical utterances, for which “witness testimony” (martyria) may be paradigmatic.26 Implicit in the “Doloneia” are nascent ideas along this line: the need to restrict oath-challenges to those of equal status, and the vulnerability of a lower status person to forceful methods of eliciting information. The plausibility of the storytelling depends on these dynamics. It may seem paradoxical that in the “Doloneia” Dolon’s character is such that he is thought capable both to participate in an oath-challenge and to be susceptible to forceful interrogation. That may partly explain why the Rhesus, written during the time of Athens’ democracy, tells the same story while avoiding both oath and torture. 26

See Mirhady 2004, 17-20.

CHAPTER 19 WITNESS OF VIRTUE: THE EPIGRAPHIC EVIDENCE OF THE HELLENISTIC HONORIFIC DECREES ANTIOPI ARGYRIOU-CASMERIDIS

When a polis honoured one or more citizens of another city and decided to make its decision known to the honorand’s own polis, it chose to send out envoys with the explicit aim of obtaining permission for the public announcement of the honours bestowed, as well as for publication on durable material of the text of the honorary decree itself. These envoys were sent to the honorand’s homeland with a mission to inform his community of the services he had rendered abroad, and also to testify to his actions and to the virtues he had displayed. In this chapter, I shall explore the language of Hellenistic honorific decrees with a focus on witness and the terminology of testifying used by the envoys who were sent to foreign communities to provide evidence about the honorands’ benefactions. Their brief was to inform the recipient community that one or more of its citizens had been publicly praised in the envoys’ communities and elevated into public paradeigmata of arete. They were also commissioned to persuade their foreign audience of the virtues and merits of the honorand, so that his home community, too, would decide to honour him and endorse the decision of the envoys’ community that had received his benefactions. I shall highlight the way in which the written documentation (including the honorary decree itself) may have been used as testimony to corroborate the envoys’ speeches, and also the way in which the envoys themselves effectively acted as witnesses testifying to the honorand’s virtues. The answer to these questions is not as straightforward as it may seem in the first instance.

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The epigraphic evidence of the Hellenistic honorific decrees points to two important ways for such envoys to provide evidence for the honorand’s virtues and benefactions. One was through the decrees themselves, and the other was through speeches delivered by the envoys who conveyed the decrees to the honorands’ home communities. These two were often complementary, that is the written evidence of the decree would be further elaborated through the envoys’ oral presentations. In general, the envoys, who were sent to other poleis with written documents, conveyed the decrees or a sealed copy of them,1 with or without covering letters,2 but also performed speeches, in which they attempted to evoke specific emotional reactions3 from their audiences through appeals to history4 and past relations between the two poleis, of which the honorand’s actions were the most recent manifestation. They also gave accounts of the honorand’s virtues, and they ended with a request (ʌĮȡĮțĮȜȠࠎıȚ/ܻȟȚȠࠎıȚ), usually for the oral proclamation of honours in the honorand’s own polis. When a polis decided to honour a citizen or a foreigner for benefactions *I am grateful to the editors of this volume and to my PhD supervisor, Professor Lene Rubinstein, for discussing earlier drafts of this chapter. The remaining faults are of course all mine. All dates are B.C. unless otherwise stated. 1 E.g. IG X,2 1:1028 (Delos, c. 230), ll. 2-9: ʌĮȡĮȖİȞȠȝ੼ȞȠȣ ǺȠ઄ȜȦȞȠȢ IJȠ૨ ʌĮȡ’ ਫ਼ȝ૵Ȟ ਕʌȠıIJĮȜ੼ȞIJȠȢ ʌȡİıȕİȣIJȠ૨ țĮ੿ IJ‫ ޠ‬IJİ ȥȘijަıȝĮIJĮ ܻʌȠįިȞIJȠȢ įȚ’ ੰȞ ਥIJİIJȚȝ੾țİȚIJİ ਡįȝȘIJȠȞ ǺંțȡȠȣ țĮ੿ ʌĮȡİȜșંȞIJȠȢ İੁȢ IJ੽Ȟ ਥțțȜȘı઀ĮȞ țĮ੿ įȚĮȜİȖ‫ޢ‬ȞIJȠȢ ܻțȠȜȠުșȦȢ IJȠ߿Ȣ ‫݋‬ȥȘijȚıȝ‫ޢ‬ȞȠȚȢ IJĮ૨IJ੺ IJİ ʌȡȠșҕ઄ȝȦҕȢ ʌȡȠıİįİȟ੺ȝİșĮ țĮ੿ IJȠ૨ ȥȘij઀ıȝĮ[IJ]ȠȢ țĮș’ ੔ ıȣȞİțİȤȦȡ੾țİȚȝİȞ IJ੹ ʌĮҕȡҕ’ ਫ਼ȝ૵Ȟ ਕȟȚઆ[ȝĮ][IJ]Į ʌİʌંȝijĮȝİȞ ਫ਼ȝ૙Ȟ IJާ ܻȞIJަȖȡĮijȠȞ ੖ʌȦȢ İੁįોIJİ (“Boulon, who was sent as an envoy by you, has arrived and has delivered the decrees in which you honoured Admetos son of Bokros; after he came into the assembly and spoke in accordance with your decrees, we accepted this request in accordance with your wishes, and we have sent you a copy of the decree in which we complied with your request, so that you may see it”). Translation in www.attalus.org (91). 2 E.g. IG V,1 1428 (Messene, late 2nd c./1st c.): the envoy was commissioned to hand over the ਥʌȚıIJȠȜȒ to the Messenian archons. Cf. IvO 52 (Olympia, c. 138), ll. 11-15. Translation at: Burstein 1985, n. 80. 3 See Chaniotis 2013a, 757-758: “The narrationes of some of these decrees were dramatic rhetorical performances in the assembly.… In the Hellenistic period, assemblies were gradually transformed into stages of display: rhetorical, theatrical, emotional”. Cf. Judge 1997; Gazzano 2019. See Jones 1999, 52-62 for kinship ties as used in diplomatic interactions between communicating communities. Cf. idem, 7: usually, the claim to ıȣȖȖȑȞİȚĮ was based on the presentation of mythical or historical ties (or both) between the communities. Cf. Curty 1995; Low 2007, 133 (ıȣȖȖȑȞİȚĮ); Rubinstein 2013 for ijȚȜȓĮ, İ੡ȞȠȚĮ, ıȣȖȖȑȞİȚĮ and ȠੁțİȚȩIJȘȢ as main themes of the envoys’ addresses. 4 See Chaniotis 2009.

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it had itself directly received, we may infer that the benefactor’s actions and virtues were common knowledge within the beneficiary community. By contrast, when a polis decided to honour one of its own citizens for benefactions he had rendered to another community as a foreign benefactor, it relied for its citizen’s conduct abroad on the testimonies provided by the beneficiary community. Scholars have shown the importance of the envoys’ oral performances for the decision-making process in the benefactor’s home community.5 Several inscriptions suggest that they would not only repeat before the Assembly what was written in the honorary decree conveyed by them, but also elaborate orally on the actions and virtues of the honorand. Rubinstein has argued that the significance of publicizing civic honours bestowed on one’s own citizens by other states “was also a public expression of respect, acknowledgement and goodwill towards the polis that had conferred the honours”.6 However, the process of informing the honorand’s polis of his display of virtue in another community did not always involve the dispatch of envoys. There are several examples of honorific decrees where the evidence for the honorand’s conduct abroad took the form of written documentation alone without accompanying oral performances by envoys. One example is that of Asclepiades, a doctor from Perge in Pamphylia. A second-century decree from Seleucia, another polis in Pamphylia,7 praised him for all the good services he had offered as a physician. He had not only displayed his professional expertise by offering unusual treatments and surgery to patients in need, but also promoted the health of the residents of Seleucia by offering lectures at the local gymnasion.8 Asclepiades was honoured by the Seleucians with a golden crown and a bronze statue,9 and with citizenship for himself and his wife and children. It was further resolved that Asclepiades would be 5 Rubinstein 2013 gives numerous examples of inscriptions which prove the centrality of envoys’ speeches in the process of diplomatic interaction in the Hellenistic period. For the selection of envoys, see Mosley 1973, 43-47. It was expected that men who had the ability to represent clear and persuasive argument should be appointed as envoys. Such ability was an advantage both abroad and at home, “for it was on the basis of an envoy’s report that decrees had to be formulated” (Mosley 1973, 43). Cf. Aeschin. 2.34-35. 6 Rubinstein 2013, 178. 7 See Samama 2003, 441 n. 41 for another possibility of Seleucia in Cilicia. 8 The gymnasia were regular venues for lectures (ਕțȡȠȐıİȚȢ), especially for grammarians, sophists, poets and musicians; see Delorme 1960, 198, 321, 476. There is much scholarly discussion on Hellenistic gymnasia, e.g. Mania-Trümper 2018; Kah-Scholz 2004. 9 For statues as honours for civic benefactors, see Ma 2013.

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given a copy of this decree, sealed with the public seal,10 so that his own polis, Perge, was informed of the Seleucians’ decision and that it in turn endorsed the honours in its own honorific decree. It was not unusual for doctors, as for other professionals,11 to travel and receive public honours in the communities where they had demonstrated their professional expertise, and, in turn, for them to be praised by their home polis for their good behaviour and services abroad.12 However, what makes this honorific decree particularly interesting is the vocabulary used in it to refer to the process of witnessing. Unsurprisingly, the Seleucians who had benefited from the medical services were among those who testified to the doctor’s professional qualities. This is clear in ll. 40-41 of the decree: “He was honoured by the testimony emanating from the people” (țĮ੿ IJોȢ ʌĮȡ੹ IJȠ૨ į੾[ȝȠȣ ȝĮȡIJȣȡަĮȢ ਕȟȚȦ]șİ੿Ȣ).13 Such testimonies would have been a prerequisite for the renewal of his contract as a public doctor, as Massar has shown.14 But, in the previous lines, the decree explicitly states that the honorand “is providing the cities as witnesses giving ekmartyria for him through their decrees and public letters, also on the matter of the honours bestowed on him by them” (ʌĮȡİ઀ıȤȘIJĮ઀ IJİ IJ੹Ȣ ʌંȜİȚȢ ‫݋‬țȝĮȡIJȣȡȠުıĮȢ Į੝IJ૵Ț įȚȐ IJİ 10 IK Perge 12 = Samama 2003: n. 341. Translation in www.attalus.org (99L). Asclepiades undoubtedly belonged to a family of doctors, as is shown by his name and the reference to his ancestors, as well as to his professional qualities; see Samama 2003, 440 n. 40. 11 Travelling professionals were not a new thing, but the expansion of the market for artistic skills and the extensive specialization and increased professionalization in the Hellenistic period offered many opportunities for professionals in the fields of art and education to travel and offer their services. These professionals offered their services in various contexts: musicians, actors, and poets were normally praised for their performances in the context of religious festivals; teachers and philosophers were usually honoured for their contributions to civic education at the gymnasia, while musicians, poets, historians, and doctors were praised for their teaching activities and public lectures; doctors and architects were usually commended in periods of crisis (war, natural disasters and epidemics). For professionals as paradeigmata of arete in Hellenistic honorific decrees, see Argyriou-Casmeridis 2014. 12 See Samama 2003. Cf. Massar 2005. 13 See Samama 2003, 442 n. 46. Cf. IG XII,6 1:12 (198/7) = Samama 2003, n. 168 for Diodorus, a public doctor in Samos, ll. 16-18: țĮșંIJȚ țĮ੿ ʌȜİȚȠȞ੺țȚȢ ਥʌ੿ IJ૵Ȟ ਥȡȖȠȜĮȕȚ૵[Ȟ] ਫ਼ʌઁ ʌȠȜȜ૵Ȟ ਥȞ IJ૵Ț į੾ȝȦȚ ȝİȝĮȡIJުȡȘIJĮȚ. Massar 2001, 180-181 and n. 24. 14 Massar 2001, 180ff. explained the three ways of recruiting public doctors: a) witness attests to the doctor’s qualities (IG XII,1 1032: ȝİȝĮȡIJȪȡȘIJĮȚ); b) a Coan doctor is called; and c) choice based on the doctor’s reputation.

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ȥȘijȚıȝ੺IJȦȞ țĮ੿ įȘȝȠı઀ȦȞ ਥʌȚıIJȠȜ૵Ȟ țĮ੿ ʌİȡ੿ IJ૵Ȟ ȖİȖİȞȘȝ੼ȞȦȞ Į੝IJ૵Ț ʌĮȡ’ Į੝IJȠ૙Ȣ IJȚȝȓȦȞ).15 The participle used here, ਥțȝĮȡIJȣȡȠȪıĮȢ, is particularly important for two reasons. First, ਥțȝĮȡIJȣȡȓĮ and its cognate verb ਥțȝĮȡIJȣȡȑȦ are very rare in the epigraphic record. In addition to the present decree, it is used in an honorific decree from Andros, dating also from the second century for another doctor. Heroïdes, son of Neon, had been previously honoured by the Aetolian League and the polis of Stratos in Acarnania with citizenship and honorific decrees.16 During his extended stay in these poleis, he conducted himself with propriety (IJ੽Ȟ ਕȞĮıIJȡȠij੽Ȟ İ੝ıȤ੾ȝȠȞĮ) and offered his professional expertise to their citizens. The evidence for his benefactions is provided by the decrees themselves, as is explicitly stated in lines 16-17: “as it has been witnessed for him—testified by ekmartyria—through the decrees” (țĮșઅȢ Į੝IJ૵Ț įȚ੹ IJ૵Ȟ ȥȘijȚıȝ੺IJȦȞ ਥȟİȝĮȡIJȣȡ੾șȘ). Apart from the decrees for the two doctors, the term ਥțȝĮȡIJȣȡȓĮ is used in a comparable context in a decree for Menestratus of Phocaea, a manager (ਥʌȚıIJȐIJȘȢ) of the Artemisium at Amyzon. He is said to have provided many proofs (ਕʌȠįİȓȟİȚȢ) of his kalokagathia, especially by writing to rulers, “providing ekmartyria concerning his goodwill towards our citizens” (੒ȝȠ઀ȦȢ ਥȖȝĮȡIJȣȡ૵Ȟ ਫ਼ʌ੻ȡ IJોȢ İ੝ȞȠ઀ĮȢ IJ૵Ȟ ʌȠȜȚIJ૵Ȟ).17 The only other Hellenistic attestation18 of the term ਥțȝĮȡIJȣȡȓĮ is not in an honorific decree, but in an inscription from Calymna concerning an arbitration by Cnidus between Calymna and Cos, dating from the early third century.19 The inscription refers to a procedure of arbitration between the two communities. Detailed procedural rules were applied to verbal witness. Those witnesses who could make the journey to Cnidus were expected to do so and present themselves before the tribunal in order to give their evidence in person. It was recognized, however, that some witnesses would be unable to make the trip; some provision was necessary for the hearing of their testimony. Those who were unable to give their evidence in person were therefore allowed to give it by proxy (ਥțȝĮȡIJȣȡȓĮ). On a fixed day in both Cos and Calymna, these witnesses were to go before the prostatai and give sworn depositions of their testimony. Before doing so they were to take an oath that they were telling the truth, and that they were indeed unable to 15

IK Perge 12, ll. 14-18. IG XII, Suppl. 249 (2nd c.). Translation in www.attalus.org (99H). 17 Cf. Robert, Amyzon n. 15 (201), ll. 6-12; Grainger 2017, 60-61. 18 A very early attestation is in IG I3 157/213 (440-410) with a record of ਥȖȝĮҕȡIJȣȡİࡿȞ, which refers to an alliance of Athens. The inscription is heavily restored. 19 Tit. Calymnii 79 = IK Knidos I 221. Ager 1993, no. 21, 75-83: the arbitration between Calymna and Cos concerned conflicts over debt. 16

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attend the arbitration hearing.20 Thus, in the section about the witnesses there is a clear distinction between ȝĮȡIJȣȡȓĮ and ਥțȝĮȡIJȣȡȓĮ, i.e. between the deposition of witnesses who are present at the arbitration and of those who are not. The inscription prescribes that the evidence of absent witnesses should be given to the ʌȡȠıIJȐIJĮȚ, who would seal the ਥțȝĮȡIJȣȡȓĮȚ with the public seal.21 Here, the term ਥțȝĮȡIJȣȡȓĮ is clearly used as a technical term, known also from Classical Athenian law.22 If a witness could not be present to confirm his testimony in court, because he was abroad on campaign or for other reasons, he could make his statement in front of other witnesses, who then confirmed his testimony in their own depositions in court. In a passage from Isaeus we find a clear explanation of ਥțȝĮȡIJȣȡȓĮ: “and we all obtain absentee depositions in the presence not of one or two people but of as many as possible, to prevent the person who testified in absentia from denying the deposition afterwards and to make you all the more confident in the unanimous testimony of a large number of gentlemen (kaloi kagathoi)”.23 Harpocration clearly explains the difference between ȝĮȡIJȣȡȓĮ (testimony) and ਥțȝĮȡIJȣȡȓĮ (the deposition of a witness taken out of court). ȂĮȡIJȣȡȓĮ is for witnesses who were present (IJ૵Ȟ ʌĮȡȩȞIJȦȞ), whereas ਥțȝĮȡIJȣȡȓĮ is for absent witnesses (IJ૵Ȟ ਕʌȩȞIJȦȞ).24 It is very suggestive that the honorific decrees for the two doctors and the epistates, which use the terms ਥțȝĮȡIJȣȡȓĮ or ਥțȝĮȡIJȣȡȑȦ, point precisely to the notion that the foreign poleis which had originally bestowed the honours were bearing witness to the honorands’ benefactions and virtues through the decrees themselves. That is, the honorific decrees were essentially represented as written testimony (ਙIJİȤȞȠȚ ʌȓıIJİȚȢ) given by poleis that were “absent”. It should be noted that Asclepiades, the doctor from Perge, was himself given a sealed copy of Perge’s response to the Seleucian decree.25 The fact that no Seleucian envoys are mentioned suggests that Asclepiades himself had conveyed the Seleucian documents. By handing them over to his home community, he himself is transformed 20 Ager 1993, 82 n. 9 noted that an additional oath was taken as well as the regular oath about telling the truth. 21 Tit. Calymnii 79, ll. 45-49: ੒ į੻ ȝ੺ȡIJȣȡ ੒ ȝ੻Ȟ įȣȞĮIJઁȢ ਥઅȞ ʌĮȡİ૙ȝİȞ, ȝĮȡIJȣȡİ઀IJȦ ʌĮȡİઅȞ ਥʌ੿ IJȠ૨ įȚțĮҕıIJȘȡ઀Ƞȣ, IJȠ੿ į੻ ਕį઄Ȟ[Į]IJȠȚ IJ૵Ȟ ȝĮȡIJ઄ȡȦȞ ʌĮȡĮȖİȞ੼ıșĮȚ ਥʌ੿ IJઁ įȚțҕĮıIJ੾ȡȚȠȞ ਥȖȝĮȡIJȣȡȘı੺ȞIJȦ ʌȡȠıIJĮIJ઼Ȟ ਥȞ ਦțĮIJ੼ȡĮ[Ț] IJ઼Ț ʌંȜȚ. 22 E.g. Dem. 35.20, 46.7; Aeschin. 2.19. 23 Isaeus 3.21 = Edwards 2007, 52. It is worth pointing out that Forster’s rather dated (1927) translation of ekmartyria as “written deposition” misses the point. Instead, both Edwards 2007, 43 and 52 n. 34, and Hatzilambrou 2018, 82 rightly translate the term ekmartyria as “absentee deposition”. 24 Harpocration, s.v. ਥțȝĮȡIJȣȡ઀Į. 25 IK Perge 12, ll. 19-21.

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into a witness to whom the initial statements of the absent witnesses were given, as in the case of an ਥțȝĮȡIJȣȡȓĮ in court. Thus, the use of the legal term ਥțȝĮȡIJȣȡȓĮ, which normally refers to a particular type of witnessing in forensic contexts, is deployed in the context of oratory that will probably have combined elements of the deliberative and epideictic genres. The ambassador’s speech has been identified as a distinct genre of oratory, which flourished especially in the Hellenistic period.26 And since there is no extant rhetorical speech from that period—compared with the Classical and the Roman evidence of oratory—we can only rely on indirect references to it in other genres, such as historiography27 or epigraphy. We can tell from many of the epigraphic résumés of the envoys’ oral performances that they would have contained accounts of past interactions between the communicating poleis, in order to enhance the envoys’ own credibility and secure the favourable reception of their request, as in the captatio benevolentiae. This would be combined with a narration of the honorand’s actions and virtues, and finally, they would exhort their addressees to grant the request for publication and announcement of the honours that their own community had bestowed. In Hellenistic honorific decrees, two other similar terms refer to the act of witnessing, i.e. the verbs įȚĮȝĮȡIJȣȡȑȦ/įȚĮȝĮȡIJȣȡȠ૨ȝĮȚ and ਕʌȠȝĮȡIJȣȡȑȦ, albeit in different contexts and with semantic variations. Both verbs mean “to prove, to provide evidence, to call as witness”. ǻȚĮȝĮȡIJȣȡȑȦ (in the active voice), when it is used in the context of honorific decrees, is normally

26

See Vanderspoel 2007; Wooten 1973. See Sacks 1986. The term ʌȡİıȕİȣIJȚțȩȢ ȜȩȖȠȢ was first used by Polybius (Polyb. 12.25 a3). As Thornton 2013, 33 argues for Polybius: “He was at the same time an historian and a shrewd orator, used to addressing both Greek assemblies and Roman authorities”. Polybius classifies speeches as being of three types: įȘȝȘȖȠȡȓĮȚ (speeches in public assemblies), ʌĮȡĮțȜȒıİȚȢ (exhortations), and ʌȡİıȕİȣIJȚțȠȓ ȜȩȖȠȚ (ambassadors’ speeches). For the speeches in Polybius, see Wooten 1974; Thornton 2013. However, pace Wooten, who argues that during the Hellenistic period the Greek city-states had become “the pawns of the super-powers, Rome and the Hellenistic monarchies” (1973, 209), and so that important political decisions were now made in Rome or at the courts of the Hellenistic monarchs and not in the assemblies of the Greek city-states, the epigraphic evidence reveals a different dynamic of the political life in the Greek poleis. For a discussion of the surviving evidence—especially from the papyri—for Hellenistic oratory, see Kremmydas and Tempest 2013b; Kremmydas 2013b. Cf. Rubinstein 2016, 79, who argues that the coinage ‘presbeutikos logos’ does not in itself necessarily indicate that envoys’ speeches were recognized as a more important part of the diplomatic process in the Hellenistic period than they had been in the fifth and fourth centuries. 27

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associated with envoys, but not always.28 In a decree for Metrodorus from Pergamon, the young ephebes (neoi) bear witness to their gymnasiarch’s impartial and just conduct.29 The passive form įȚĮȝĮȡIJȣȡȠ૨ȝĮȚ is usually attested in the participle form in the phrase įȚĮȝĮȡIJȣȡȠȣȝȑȞȘȞ ਩ıȤİȞ/ਥıȤȘțȫȢ, to denote that the honorand himself had provided witness of his virtues, e.g. the İ੝ȝȑȞİȚĮ (benevolence) of the gods and the people,30 or the ȤȐȡȚȢ (gratitude) deriving from his actions.31 The verb ਕʌȠȝĮȡIJȣȡȑȦ is attested only rarely in the epigraphic record. In most of the decrees there is a clear association of the act of witnessing with envoys, who were sent to report on the honours granted by their own community. In a decree of the Dionysiac Technitai for Queen Nysa, wife of King Ariarathes, the envoys sent by the demos of the Athenians and by the synodos of the Dionysiac Technitai ਕʌȠȝĮȡIJȣȡȠ૨ıȚ the royal benefactions.32 The verb ਕʌȠȝĮȡIJȣȡȑȦ is again associated with envoys, this time the ȕĮıȓȜİȚĮȚ ʌȡİıȕİ૙ĮȚ, in a decree from Labraunda in Caria, issued by the Chrysaoreis for Apollonius, an oikonomos of King Ptolemy.33 But this decree is heavily restored. Another restored decree from Delos refers to envoys sent to the Romans to provide testimony (ਕʌİȝĮȡIJȪȡȘıĮȞ) about the situation in Asia.34 In these decrees, the verb ਕʌȠȝĮȡIJȣȡȑȦ denotes the act of witnessing by the envoys themselves, presumably through their oral addresses to their foreign audiences. In other epigraphic attestations of ਕʌȠȝĮȡIJȣȡȑȦ, the persons who act as witnesses are not envoys, but simply the citizens (ʌȠȜ૙IJĮȚ), who had benefited from the benefactions of the honorands and could bear witness to their actions,35 as in the cases of honorific decrees for doctors, whose qualities were confirmed by the testimony of their patients. For example, in 28 E.g. IG Bulg. I2 314a (Mesambria) for a Roman euergetes, ll. 9-10; IK Byzantion 1(175-171), ll. 55-56. 29 MDAI(A) 32 (1907) 273,10 (p. 133), ll. 41-42: įȚĮȝĮȡIJȣȡȠ૨ȞIJİȢ ʌİȡҕ੿ҕ IJȠ૨ ੅ıȦȢ țĮ੿ įȚțĮ઀ȦȢ ਥȞ IJોȚ ਕȡȤોȚ ਕȞİıIJȡ[੺ij]șĮȚ. 30 I.Priene 110 (1st c.), ll. 15-17; Cf. I.Priene 108. 31 SEG XXXIX 1243 (Claros, 130-110): įȚĮȝĮȡIJȣȡȠȣȝ੼ȞȘȞ ਩ıȤİȞ IJ੽Ȟ ਕʌઁ IJ૵Ȟ ʌȡĮııȠȝ੼ȞȦȞ Ȥ੺ȡȚȞ. 32 IG II2 1330, ll. 72-73 (163-130): [ʌ]ȡİıȕİȣIJĮ੿ Ƞ੆ IJİ ʌĮȡ੹ IJȠ૨ į੾ȝȠȣ ਕ[ʌİıIJĮȜȝ੼ȞȠȚ IJȠ૨ ਝșȘȞĮ઀ȦȞ țĮ੿ IJોȢ ıȣȞંįȠȣ] IJ૵Ȟ IJİȤȞȚIJ૵Ȟ ਕʌȠȝĮȡIJȣȡȠ૨ı[Ț]Ȟ. 33 I.Labraunda 43 (267): țҕĮ[ҕ ș]ંIJȚ Įੂ ȕı઀ȜİȚĮȚ ʌȡİıҕ[ȕİ૙ĮȚ Į੝IJ૵Ț ਕʌȠȝĮȡ][IJȣȡȠ૨]ıҕȚ? ҕ 34 IG XI,4 713 (2nd c.): țĮșઅȢ] Ƞੂ ʌȡİı] ȕİȣIJĮ੿ ਕʌİȝĮȡIJ઄ȡȘ[ıĮȞ. 35 IG IX,1 222 (Phocis, Tithronion), ll. 6-9: țĮ੿ ʌĮȡĮ઀IJȚȠ[Ȣ] [ਕİ઀ IJȚȞȠȢ ਕȖĮșȠ૨ ȖİȞંȝİ]ȞȠȢ țĮ੿ țȠȚȞ઼Ț țĮ੿ țĮș’ ੁį઀ĮȞ IJȠ૙Ȣ [ਕİ੿ įİȠȝ੼ȞȠȚȢ IJ૵ȝ ʌȠȜȚIJ઼Ȟ, Į]੝IJ૵Ȟ ܻʌȠȝĮȡIJȣȡȘı‫ޠ‬ȞIJȦȞ Į੝[IJ૶; IvO 39 (Olympia, c. 300-250), ll. 13-15: ijĮȞİȡ੹Ȟ ʌȠȚ੼ȦȞ IJ੹Ȟ ਩ȤİȚ İ੡ȞȠȚĮȞ ʌȠIJ੿ IJ੹Ȟ ʌંȜȚȞ, țĮșઅȡ ʌȜİ઀ȠȞİȡ ܻʌİȝĮȡIJުȡİȠȞ IJ૵ȝ ʌȠȜȚIJ઼Ȟ (proxeny decree for Damocrates, a theorodokos from Tenedos).

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a decree of the Aetolians for Sosicles the hieromnemon and Aristodamus from Magnesia on the Maeander, it was testified for them that they displayed spoude and philotimia towards the Aetolian ethnos collectively and towards those of the citizens who approached them in private (IJ੹Ȟ ʌ઼ıĮ[Ȟ ıʌȠȣį੹Ȟ țĮ੿ ijȚ][ȜȠIJȚȝ઀]ĮȞ ʌĮȡİȤંȝİȞȠȚ įȚĮIJİȜ੼ȠȞIJ țȠȚȞ઼Ț IJİ IJ૵Ț ਩șȞİȚ IJ૵[Ȟ ǹੁIJȦȜ૵Ȟ țĮ੿] [țĮIJ’ ੁ]į઀ĮȞ IJȠ૙Ȣ ijĮȞİȡҕ[੹Ȟ ʌȠȚİ઀ȝİȞȠȚ] [IJ੹Ȟ] ੁį઀ĮȞ ʌȡȠĮ઀ȡİıȚȞ, țĮșઅȢ ਕʌİȝĮȡIJȣȡİ૙IJȠ Į੝IJȠ૙Ȣ).36 I shall now focus on the Hellenistic honorific decrees as evidence for the function of envoys as witnesses.37 I shall explore the vocabulary of the decrees, in order to identify when and how the envoys sent with the written documents were themselves represented as witnesses who testified orally to the conduct of the honorand in the community which had originally conferred the honours. As already mentioned,38 many Hellenistic honorific decrees mention that the envoys reported (įȚİȜȑȤșȘıĮȞ/įȚİȜȑȖȘıĮȞ) in accordance with the briefs set out in the decree they presented or that their speeches were accompanied by official covering letters (ȖȡȐȝȝĮIJĮ).39 Apart from the verb įȚĮȜȑȖȠȝĮȚ, in other instances, the verb ਕʌȠȜȠȖȓȗȠȝĮȚ is used about the envoys giving accounts before the Boule and the demos of the honorand’s community of his conduct and virtue, as well as of the honours bestowed on him in return. One example is a decree of Colophon for a judge from Methymna. The envoy Cleosthenes travelled to Methymna, handed over the decree of Colophon, and appeared before the Boule and the demos, where he recalled the old kinship and friendship ties between the two poleis. He also gave an account (ਕʌȠȜȠȖȚıȐȝİȞȠȞ) of the judge’s virtues, i.e. his kalokagathia and dikaiosyne.40 The envoy’s ethos and his oral presentation 36

IG IX,12 1:187 (194/3), ll. 5-8. Cf. Milet I 3,141 (228), ll. 39-41 (decree of Miletus regulating relations with Chios): ਥ੹Ȟҕ ܻʌȠȝĮȡIJȣȡࠛıȚȞ Į੝IJȠ૙Ȣ ȀȚĮȞȠ੿ ȝİIJ੹ ȥȘij઀ıȝĮIJȠȢ, ੖IJȚ İੁı੿Ȟ Į੝IJ૵ȝ ʌȠȜ૙IJĮȚ. 37 See Jones 1999, 52: “Sometimes embassies carried not only diplomatic instruments such as the texts of decrees, but also works of literature in verse or prose to bolster their claims, blurring the line between ambassador and travelling lecturer”. The dispatch of envoys meant the investment of money and time on the part of the polis, and often exposed the envoys themselves to considerable personal risk (Rubinstein 2013, 183-184). 38 See nn. 1-2 above. 39 E.g. a decree of Thisbe in Boeotia honours envoys who acted as theoroi for the announcement of the festival at Ptoon: IG VII 4139 (178-146), ll. 10-13: ਥʌİȜșંȞIJİȢ į੻ țĮ੿ Į੝IJȠ੿ ਥʌ੿ IJં [IJİ] ıȣȞ੼įȡȚȠȞ țĮ੿ IJઁȞ įોȝȠȞ įȚİȜ੼ȖȘıĮȞ ਕțȠȜȠ઄șȦȢ IJȠ૙Ȣ ਥȞ IJ૵Ț ȖȡĮʌIJ૵Ț țĮIJĮțİȤȦȡȚıȝ੼ȞȠȚȢ. Cf. IG VII 4141 (Ȗȡ੺ȝȝĮIJĮ ਕʌ੼įȦțĮȞ). 40 IG XII,2 509/658: țĮ੿ ਕʌȠȜȠȖȚ[ı੺ȝİȞȠȞ ਫ਼][ʌ]੻ȡ IJોȢ IJȠ૨ įȚțĮ[ıIJȠ]૨ IJȠ૨ ਕʌȠıIJĮȜ[੼ȞIJȠȢ ਫ਼ʌઁ] [ȂȘ]șȣȝȞĮ઀ȦȞ țĮȜҕȠțĮȖĮș઀ĮȢ țĮ੿ įȚț[ĮȚȠı઄ȞȘȢ].

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could be important for the decision of a polis to send foreign judges to another polis. The Peparethian decree for judges from Larisa explicitly states that the envoy’s good ethos among those who were appreciated by the polis (ਙȞįȡĮ țĮȜઁȞ țਕȖĮșઁȞ IJ૵Ȟ IJȚȝȦȝ੼ȞȦȞ ʌĮȡ’ ਲȝ૙Ȟ) and his oral performance were well received by the honorands’ community (IJંȞ IJİ [ʌȡ]İıȕİȣIJ੽Ȟ ਕʌİį੼ȟĮIJȠ ijȚȜȠijȡંȞȦȢ) and resulted in the decision of Larisa to send judges to Peparethos.41 Another verb deployed for envoys witnessing to the honorands’ virtues is the verb ਥȝijĮȞȓȗȦ, “to present, to show forth”. Decrees for foreign judges offer examples of the envoys’ task of reporting on the honorands’ virtues by use of the term ਥȝijĮȞȓȗȦ. For instance, in a decree for foreign judges from Magnesia on the Maeander, the envoy will present (ਥȝijĮȞȚİ૙) the judges’ arete and dikaiosyne.42 The verb ਥȝijĮȞȓȗȦ is also used to denote the envoys’ act of testifying to the virtues of the communities which sent them. For example, in a decree of four poleis recognizing the inviolability (asylia) of the Asclepieion in Cos, the architheoros and the theoros witnessed (ਥȝijĮȞȚȗȩȞIJȦȞ) the friendship and kinship ties between the poleis.43 It is noteworthy that the verb ਥȝijĮȞȓȗȦ, although it is not so often 41

SEG XXVI 677 (2nd c.), ll. 13-18: ਩ʌİȝȥİȞ ʌȡઁȢ Į੝IJઁȞ[ȥ]੾ijȚıȝ੺ IJİ țĮ੿ ʌȡİıȕİȣ[IJ੽Ȟ]; IJઁȞ IJ੺ IJİ Ȗȡ੺ȝȝĮIJĮ ਕʌȠįઆıȠȞIJĮ țĮ੿ įȚĮȜİȖȘıંȝİȞȠȞ ਕțȠȜȠ[઄][ș]ȦȢ IJȠ૙Ȣ ਥȞ IJ૶ ȥȘij઀ıȝĮIJȚ țĮIJĮțİȤȦȡȚıȝ੼ȞȠȚȢ, ੒ į੻ įોȝȠȢ[੒] ȁ[ĮȡȚ]ıĮ઀ȦȞ ਕțȠ઄ıĮȢ IJ੹ ਫ਼ʌઁ IJȠ૨ ʌȡİıȕİȣIJȠ૨ ʌĮȡĮțĮȜȠ઄[ȝ]İȞ[Į. 42 I.Magnesia 101 (2nd c.), ll. 49-59: IJં IJİ ȥ੾ijȚıȝĮ ਕʌȠįઆıİȚ țĮ੿ ਥʌİȜ[șઅȞ ਥʌ]੿ IJઁȞ įોȝȠȞ ‫݋‬ȝijĮȞȚİ߿ IJ੾Ȟ IJİ IJ૵Ȟ ਕȞįȡ૵Ȟ ਕȡİIJ੽Ȟ țĮ੿ įȚț[Į]Ț[Ƞı઄Ȟ]ȘȞ țĮ੿ ʌĮȡĮțĮȜ੼ıİȚ Į੝IJȠઃȢ ਕʌȠį੼ȟĮıșĮȚ IJ੹ ਥ[ȥ]ȘijȚıȝ੼ȞĮ IJҕ઀ҕ[ȝȚĮ ț]Į੿ ʌȡȠȞȠȚોıĮȚ ੖ʌȦȢ ਕȞĮȖȠȡİ઄ȦȞIJҕĮȚ ț[Į]੿ ʌĮȡ’ Į੝IJȠ૙Ȣ Įੂ IJȚȝҕ[Į੿] [IJȠ૨] IJİ į੾ȝȠȣ țĮ੿ IJ૵Ȟ įȚțĮıIJ૵Ȟ țĮ੿ IJȠ૨ ȖȡĮȝȝĮIJҕ੼ҕȦȢ. Cf. I.Priene 57 (3rd c.): țĮ੿ ਥȝijĮȞȓıĮȞIJĮȢ IJȒȞ [IJİ ਕȡİIJ੽Ȟ IJ૵ȝ ʌȡİı]ȕİȣIJ૵Ȟ țĮ੿ IJ੽Ȟ ਙȜȜȘȞ ijȚȜȠIJȚȝȓĮȞ, ਴Ȟ ਥʌȠȚȒıĮȞIJȠ ʌİȡ੿ ੰȞ ਕʌİıIJȐ[ȜȘıĮȞ. 43 IG XII,4 1:216 (242): ‫̙݋‬ȝijĮȞ[Ț]ȗިȞIJȦȞ IJ‫ޤ‬Ȟ IJİ [ijȚȜަĮȞ țĮ‫ ޥ‬IJ‫ޣ‬Ȟ ıȣȖȖ‫ޢ‬Ȟ]İȚĮȞ IJ੽Ȟ ਫ਼ʌ੺ȡȤȠȣıĮȞ IJĮ૙Ȣ ʌંȜİı[ȚȞ. Cf. IG XII,4 1 222 (decree of Camarina), ll. 16-17: ਥȝijĮȞ઀ȗȠȞIJİȢ IJ੹Ȟ ȠੁțİȚંIJĮIJĮ țĮ੿ İ੡ȞȠȚĮȞ IJĮ૙Ȣ ʌȠȜ઀İııȚ. A similar inscription from Amphipolis concerning the asylia of the Asclepieion mentions that the Coan architheoros and theoros, ਥȞİijȐȞȚȗȠȞ IJ੽Ȟ İ੡ȞȠȚĮȞ (goodwill) of their polis towards King Antigonus and Macedon (Hatzopoulos, Mac. Inst. II 41, ll. 5-8. Cf. ibid. II 36 (decree of Philippi). In a decree of Miletus seeking recognition of the Didymeia as crowned games, the verb ਥȞİijȐȞȚȟĮȞ is used for the ijȚȜȓĮ between the communicating poleis, whereas the verb ਕʌİȜȠȖȓȟĮȞIJȠ is used to denote their accounts of the decisions of the Milesians (IG XII,4 1:153/154 (late 3rd c.), ll. 6-10. An interesting semantic variation of the envoys’ reporting to the honorands’ virtues by use of the phrase “ਥȝijĮȞȓȗȦ + virtue” is the phrase “ਥȝijĮȞȓȗȦ + the honorand’s name + İ੡ȞȠȣȞ”, as many citizenship decrees from Calymna record (Tit. Calymnii 8; 12; 25; 28; 29; 32; 33; 35; 54, 55; 56; 57; 61). The Asia Minor decrees often use another variation: “ਥȝijĮȞȓȗȦ + ੖IJȚ/įȚȩIJȚ”, yet without changing the overall meaning

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used in oratory or historiography, is also in the literary evidence normally associated with the demonstration of virtues.44 A particular aspect of persuasion was the projection of ethos by the speaker.45 In the case of envoys, the ethos they projected would combine both their authority as individuals and the collective ethos of their polis. As the representatives of their polis, envoys were effectively its voices.46 Thus, when they testify to the virtues of the honorand, they not only testify to the honorand’s ethos, which had made him deserving of public honours; they also, simultaneously, testify to the ethos—the values and moral disposition—of the community they represented, as evidenced by its decision to reward such qualities. It is no accident that references to the honorand’s virtues were frequently incorporated into the hortatory clause of the decree.47 This was the very last part of the decree, which encouraged the audience to emulate and follow the honorand’s good example. The polis shows everyone that it knows how to reward its good citizens and foreigners alike for good actions; thus, the polis that originally issued the decree is the “speaker” who made the decision and displayed its own disposition through the celebration of the virtues of its benefactors. And the envoy sent to the honorand’s polis was the medium through which the voice of the polis would be heard through its decree, which in turn would function as an important basis for the envoy’s oral argumentation, as an atechnos pistis. In this chapter, I have explored the epigraphical evidence of Hellenistic honorific decrees for the use of witness statements and other evidence, which were necessary to justify the honours granted. In particular, I have focused on the terminology of witnessing and giving testimony by envoys. It is very suggestive that the vocabulary used in these decrees resembles the vocabulary used in oratory. Since not a single speech survives in full from

of this part of the decree (e.g. I.Kaunos 17 for judges, ll. 35-36). Apart from the decrees for theoroi, other decrees for envoys attest the phrase “ਥȝijĮȞȓȗȦ + a particular virtue of the honorand”. A decree concerning the alliance between Hierapytna and Rhodes at the beginning of the second century mentions the election of an “ਙȖȖİȜȠȢ” (instead of “ʌȡİıȕİȣIJȒȢ”), who will present (ਥȝijĮȞȚȗȑIJȦ) the İ੡ȞȠȚĮ on behalf of the Rhodians (IC III iii. 3, ll. 94-96). 44 E.g. Hyp. 6. 23: IJ੽Ȟ IJ૵Ȟ ıIJȡĮIJİȣȠȝȑȞȦȞ ਕȡİIJ੽Ȟ ਥȞİijȐȞȚıİȞ. Cf. Dem. 22.22; Aeschin. 1.128; Arist. Rh. 1.9.33: ਩ıIJȚȞ į’ ਩ʌĮȚȞȠȢ ȜȩȖȠȢ ਥȝijĮȞȓȗȦȞ ȝȑȖİșȠȢ ਕȡİIJોȢ. Cf. Diod. 10.3: ਕȜȜ੹ țĮ੿ ȥȣȤોȢ ਥȞȑijĮȚȞİȞ ਷șȠȢ. 45 See Rubinstein 2016. Cf. Erskine 2007. 46 See Rubinstein 2016, 121-124 for envoys as “vehicles for collective characterisation” and as “the mouthpiece of his own community”. 47 For the hortatory clause of honorific decrees, see Henry 1996; Hedrick 2000; Miller 2016.

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the Hellenistic period,48 it is not possible to reconstruct the actual speeches delivered before the recipient communities with the rhetorical and theatrical49 nuances of their performances. However, the evidence from the Hellenistic honorific decrees sheds light on an important aspect of these speeches and their function. The envoys themselves acted as witnesses testifying orally to the virtues of the honorand and to the decision of their community to reward these virtues. Their oral testimony could be, and often was, further corroborated by the written documentation that they carried and deployed in their argumentation. Thus, the envoys as carriers of the decrees and as the voices of their poleis also acted as witnesses of arete.

48

See Kremmydas and Tempest 2013b, 4. Chaniotis 1997 has discussed theatricality in Hellenistic public life. See especially pp. 226-32 for the significance of delivery in Hellenistic public oratory. Idem 1997, 228: “In Hellenistic times, political oratory was often perceived as a carefully staged dramatic performance, as we may infer from Hellenistic historiography”. Cf. Chaniotis 2013b for the theatrical elements of Hellenistic decrees and oratory. 49

CHAPTER 20 LITERATURE AS EVIDENCE: THE CASE OF HERODOTUS CHRISTOPHER PELLING

1 The historian as detective, searching for clues;1 the historian as judge, impartially weighing the arguments;2 the historian as barrister, crossexamining witnesses;3 the historian, when on the other side in a controversy, as the wrong-headed advocate who muddies the waters. The legal analogies are seductive, and they go back a long way.4 In the Greek world as in ours, historical writers used evidence, adducing facts to bear “witness” (ȝĮȡIJȣȡİ૙Ȟ, ȝĮȡIJȪȡȚĮ) to the truth of their account, pointing to “indications” (IJİțȝȒȡȚĮ) allowing inferences to be made. Historians and their audiences, like forensic orators and seasoned jurors, knew that not all accounts would agree, and not all reports were equally to be trusted. It would be odd if forensic techniques were not borrowed for the historian’s craft, just as court orators knew the power of gripping narrative and picked up tips from the historians. Such expertise and deftness are particularly clear when Polybius sets about demolishing the causal analysis of Fabius Pictor (3.8-9) but arguably can be found much earlier.5 The court of history, like that in the agora or the forum, would judge individuals; the truth needed to be uncovered. The public expected, and needed, evidence. 1

Winks 1970; Ginzburg 1989. Ginsburg 1991; cf. Lord (Jonathan) Sumption, https://www.ein.org.uk/blog/historian-judge (accessed 21.4.21). 3 Collingwood 1946, 25 and 249-282. 4 Possibly even to the original sense of the word historie itself: cf. ੅ıIJȦȡ at Hom. Il. 18.501 with Nagy 1990, 250-252; Darbo-Peschanski 2019, 161. 5 Pelling 2019, 68-75. 2

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Evidence could come in many forms, and much was to be found in literature. Fergus Millar commented on “a curious, but important, feature of ancient historiography—while it was possible to use Cicero’s speeches for putting together a speech ‘by Cicero’, it was not possible to use them to provide evidence for the main narrative; that was supplied by the narrative sources alone”.6 Yet the biographer Plutarch feels no such compunction, and can exploit Cicero or Aristophanes while alert to the complex ways that literature can distort historical reality.7 The same is true of other genres and authors: Aristotle in the Politics, Strabo and Pausanias all use literary evidence freely. Is this, then, a generic peculiarity of historiography? Still, “using” “evidence” from “literature” for “history”? Each term raises problems. x What we normally mean by “evidence” is an indication of something other than itself. The smoking gun is evidence to show who fired it; the credit card slip is evidence that the lying politician was not where he claimed to be. Many of our citations are not like that. They are evidence only for themselves: they are facts in their own right, texts as history. If Solon praised Philocyprus (Hdt. 5.113), that does not tell us much about Philocyprus, for Herodotus does not discuss whether the praise was merited or simply flattery. One could stretch a point and say that this was “evidence” for how Solon behaved before tyrants, but one would be more likely to call it an “illustration”. x One can “use” a book in all sorts of ways. What of intertextuality, so great a preoccupation of recent scholarship? If Herodotus evokes Homer, or Plutarch evokes tragedy, they are certainly exploiting those echoes to add depth and charm to their own writing, and even persuasiveness, for modern juries too tend to find narratives more believable when they map on to story patterns that they find familiar. But that is not what we normally mean by “evidence”. x What, too, is “literature”? The Romans had a word for it, at least roughly—litterae—but did the Greeks? Are Delphic oracles literature? Are royal letters to subject states? Obviously, Herodotus, Thucydides and Ephorus were producing literature, and later writers used their accounts as sources; Herodotus himself was responding to, and probably using, Hecataeus. But that demands, and has often received, a different sort of treatment from this one. 6 7

Millar 1964, 54-55. See Pelling 2002, 148.

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x What about “history”? How narrowly should that be defined? Much of the “biography” of ancient poets was reconstructed from a literal interpretation of their own poems and sometimes those of others.8 If Homer in fact went blind or if Euripides worked in a cave those would be aspects of their personal history that were certainly important to them. When the Aristotelian Athenaion Politeia reconstructs Solon’s legislative activity partly on the basis of his poems, is it doing anything very different from those biographers? Probably not. Word counts and readers’ patience are both easily exhausted, and without further agonizing I will simply clarify my topic as the explicit, or at least transparent, use of what we call literature, but excluding Hecataeus and historiographic sources and therefore largely confined to oratory and especially poetry, as evidence for what happened in order to illuminate a history of broad significance. Even so there will doubtless be blurring at the margins. We are certainly not altogether making our divisions at, as Plato put it, the joints ordained by nature (Phaedrus 265e)—if only, indeed, nature had been so thoughtful as to provide such natural joints.

2 The Athenaion Politeia is a useful place to start, for both it and Plutarch’s Solon quote Solon’s poems freely.9 They take them literally; there are no reservations in 20th or 21st century mode about “the poetic ‘I’” or about building a persona.10 They believe him when he says that he trod a middle path between rich and poor (Ath. Pol. 12.1; Plut. Sol. 18 = F 5 W2), or when he says that he might have been a tyrant but chose not to be (Plut. Sol. 14 = FF 32-33 W2, cf. Ath. Pol. 6.3-4, 11.3); there is no hint of “well, he would say that, wouldn’t he?” The impression that the poems project of a moderate man of simplicity, dignity, and integrity doubtless affects the later writers’ 8

See Lefkowitz 2012. That is not to say that all this reconstruction is their own work; the fourth-century Atthidographers in particular had clearly been busy on the topic, and they were probably not the first. Cf. Lefkowitz 2012, 46-54. Rhodes 1981, 24-25 and 28 posits a common source for Plutarch and for Ath. Pol.; that may be right, but I see no reason to doubt that they knew the poems at first hand as well. 10 On Solon’s sophisticated self-presentation, see esp. Stehle 2006, and on the delicate problems this poses for historical reconstruction Irwin 2005, 132-152; on the over-straightforwardness of Plutarch’s reading, see Romney 2020; Klooster 2020; on Ath. Pol., Hendrickson 2013. 9

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judgment in other ways; this was not the man to seek a profit by borrowing before his cancellation of debts, though he may have been over-trusting enough to tell his friends (Ath. Pol. 6; Plut. Sol. 15.7-9). Perhaps such a straightforward reading is at least largely right; it is hard to believe that such claims as that of bringing the exiles home (F 36 W2) can be taken as purely figurative. Solon figures in Herodotus too, but not like this. Only once does Herodotus cite a poem directly, and that is not in Solon’s big scene in Book 1. It is that mention of his visit to Philocyprus, “whom he praised more than any other tyrant in his poetry” (F 19 W2)—a point of interest in itself, but not used as evidence for Philocyprus (p. 261 above). Herodotus of course knows about Solon’s legislation, but apart from one stray later mention (2.177.2) it is mentioned only to explain why he was travelling (1.29.1). The historian could easily have found an opportunity to say more. When Croesus is inquiring about the Greek cities of his day (1.56.2), Sparta’s history is traced back to Lycurgus, but for Athens we are told only about Peisistratus (1.59-68); Peisistratus, says Herodotus, left much unchanged (1.59.6), but nothing is added about that previous settlement. Another wise man, Chilon of Sparta, advises Peisistratus’ father not to have children (1.59.2); Solon’s poetic misgivings about his protégé are left unmentioned.11 Plutarch by contrast relished them (Sol. 30). Yet a canny listener or reader of Herodotus would not find it difficult to catch the voice of the poems when Solon shares his wisdom with an uncomprehending Croesus.12 Seventy years as the measure of life (1.32.24) evokes Solon’s listing of the ten ages, each seven years long (F 27 W2). There is no shortage of parallels in the Elegy to the Muses (F 13 W2): the stress on ੕ȜȕȠȢ (and it is striking when Herodotus uses this very poetic word in prose),13 the distinction between prosperity which lasts and that which does not, the utter destruction that comes when the gods take against one, the delusion of over-confident mortals; disease, wealth, poverty, children— all are themes that the elegy and the historian share. Certainly, some aspects seem more Herodotean than Solonic, the emphasis for instance on divine jealousy or the melancholy stress on death in the case of Cleobis and Biton;14 but even there the audience’s picture of Solon as an all-purpose

11

Cf. Stehle 2006, 105. As many have noted: see esp. Chiasson 1986; Crane 1996, 76-77; Harrison 2000, 36-38; Noussia-Fantuzzi 2010, 14-17. 13 Crane 1996, 61-63; Chiasson 2012, 136. 14 Chiasson 1986; von Fritz 1967, i.217-219 had similarly found the Tellus example more in tune with Solon’s thought than Cleobis and Biton. It may well have been 12

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sage, based on the “wisdom literature” aspect of the poems, will have lent cogency to his role as the mouthpiece of timeless wisdom. Herodotus, then, suits Millar’s dictum rather well. Solon’s poems can be used for a speech, but the opportunity to use them as a “source” for his legislation is one that the historian resists. And Solon matters, greatly. As many scholars have stressed,15 his words to Croesus are often recalled at the most crucial moments of the narrative; remembered by Croesus himself on the pyre (1.86); echoed when Herodotus tells of Polycrates’ conversation with Amasis (3.40-44), of Artabanus’ advice to Xerxes (7.46) and of the desperate Greeks clutching for hope as the Great King approaches (7.203.2). Solon can even serve as an alter ego for Herodotus himself, so some have thought,16 as the historian dispenses his own wisdom into the ups and downs of human fortunes. Maybe his audience may prove more receptive than Croesus; maybe not. Is this a case of Herodotus using Solon as “evidence”? Yes, but in a nuanced way, or rather ways. First, in the sense that Millar identified, not as evidence for what Solon did but for what he might have said and how he might have said it. And secondly, more broadly, as evidence not just for what happened on day X but for what life is like; not just for a human experience but for “human experience” in general. That in turn can lend credibility to a particular case, rather as intertextuality does (p. 261 above): if things happened similarly in the Iliad, or if Solon knew that no human could safely be called happy until they die, that makes it more credible that Thermopylae could play out like that or that Polycrates or Xerxes might suffer an unforeseen calamity. So “evidence”, perhaps—but in an oblique and indirect way. The same can be said of the reference to Pindar at 3.38.4, following Darius’ seminar on cultural relativism: would the Greeks be prepared to eat their dead fathers, or the Indians to burn them? Absolutely not, both groups cry. “That is the way these things are ordained, and Pindar seems to me to have been right to have made nomos the lord of all”. Enigmatic, certainly, both for what Pindar meant and what Herodotus took him to be meaning; but if it is “evidence” it is not for the episode but for the universal truth. Herodotus’ own contribution to bring both the Tellus and the Cleobis-Biton cases into contact with the Solon story: so Erbse 1992, 13. 15 E.g. Shapiro 1996, 353-355; Harrison 2000, 45-52; Pelling 2019, 111 and 268 n. 24. 16 Solon “appears in Herodotus’ narrative as a kind of alter ego of the narrator himself”, Redfield 1985, 102 = 2013, 273. For other versions of this idea, cf. Bischoff 1932, 39; Hellmann 1934, 38, 43-45; Drexler 1972, 25-28; Stahl 1975, 5, 7; Pelling 2006a, 145 and n. 15; and esp. Moles 1996.

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We should also notice what Herodotus does not do. A cultured listener or reader would register how his Croesus has a different fate from Bacchylides’, and how his version of Helen shows some similarities with Stesichorus’ but does so without an implausible phantom. Herodotus may be rationalizing those poems,17 or at least the mythical material that lay behind them. But he does not mention either as “evidence”; nor does he mention Aeschylus for Salamis, or Simonides for Plataea,18 or Callinus on the Cimmerians, or even his kinsman Panyassis for the Ionian colonies, though he doubtless knew all those works. A story about Phrynichus’ Fall of Miletus is interesting for the history in which it played a part, the distress that drove the Athenians to impose a fine (6.21.2); but the play’s contents are not cited for events in Miletus itself.19 Nor does he engage with or challenge those versions, at least openly; it is not worth scoring points off the poets as he scores off Hecataeus or some oral traditions, for the poets are just doing something different. He mentions Anacreon at Polycrates’ court (3.121.1), but does not exploit his verse to make any further points about Polycrates, even though “his whole poetry was full of Polycrates” (Strabo 14.1.16); nor does he use Alcaeus to tell us about Myrsilus or Pittacus (cf. Hdt. 1.27), though he is quite interested in Mytilene. Tyrtaeus may lurk unnamed in the background at 6.52.1, where the Lacedaemonians’ own tradition “agrees with none of the poets”; that may include Cinaethon and Hesiod too.20 If so, the sweeping anonymity is eloquent. Nothing more about those “poets” needed to be said. Yet Aeschylean language can be echoed. Artemisia fears that “damage to the naval force might harm the land force too” (ȝ੽ ੒ ȞĮȣIJȚțઁȢ ıIJȡĮIJઁȢ țĮțȦșİ੿Ȣ IJઁȞ ʌİȗઁȞ ʌȡȠıįȘȜȒıȘIJĮȚ, 8.68 Ȗ.1), surely evoking Aesch. Pers. 728 ȞĮȣIJȚțઁȢ ıIJȡĮIJઁȢ țĮțȦșİ੿Ȣ ʌİȗઁȞ ੭Ȝİıİ ıIJȡĮIJȩȞ)—and that is once 17

West 2002 and 2007, followed on Bacchylides by Donelli 2016b, 24-25. See also Hadjimichael 2019, 272-276 for the various ways in which Herodotus’ gesturing towards Bacchylides, if that is what it is, might be taken. 18 Boedeker 2001 tentatively suggests that he may have used Simonides among other sources for Plataea; I am unconvinced, but in any case Simonides is not adduced as evidence—indeed, as Boedeker stresses (2001, 132), Herodotus is at pains to differentiate his version from that in the poem. 19 Like Chiasson 2012, 128-129, I am sceptical of the suggestion that 1.1-4 draws on Phrynichus’ Phoenician Women (Raubitschek 1993; West 2002, 13-15); but even if this were right, it is the attribution of the versions to Persian and Phoenician ȜȩȖȚȠȚ that is presented as making them worthy of consideration. 20 Cf. Hornblower-Pelling 2017, 155-156 ad loc. It is possible too that 1.65.2 hints at Tyrtaeus’ Eunomia (so Hornblower 2013, 272 on Hdt. 5.95.1), but Spartan eunomia was more broadly acknowledged (cf. Thuc. 1.18.1; Plato Crito 52e, Hipp. Mai. 283e) and the suggestion could easily be missed.

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again in a speech. Herodotus’ one mention of Aeschylus is to say that he, “alone of the earlier poets”, seized on an Egyptian tradition that Artemis was Demeter’s daughter (2.156.6): evidence for a tradition, but hardly for a cosmic truth. “Alone of the earlier poets”, though, insinuates a further point: Herodotus knows all this stuff, just as he does when he records that Spartan tradition “in line with none of the poets” (6.52.1), confident that he knows what they do not say as well as what they do. But to know the poets is also to know when they are not to be adduced. When Cynegirus falls heroically at Marathon (6.114), it is not mentioned that he was Aeschylus’ brother and that Aeschylus fought there too. Cynegirus deserves his moment of fame for his own sake, and on his own. Let us turn to more straightforward cases. At 5.95.1-2 the battle is mentioned in which Alcaeus lost his shield and fled; “and Alcaeus turned this episode into a song and sent it to Mytilene, reporting to his friend Melanippus there what had happened”. Evidence, yes, for Herodotus clearly takes the incident as historical; but not evidence for anything much beyond itself, a fact about Alcaeus’ poetry rather than a pointer to anything more. It is interesting that Archilochus mentioned Gyges (1.12.2), but this does not deepen the picture of Gyges; anyone remembering the poem (F 19 W2) might recall that Gyges was “rich in gold” and that Archilochus affected not to care a fig about him, but the audience would infer the first point anyway (it will be confirmed by his rich gifts to Delphi, 1.14) and the second is a point about Archilochus, not evidence for Gyges. In one version of Polycrates’ end Anacreon is present when Oroetes’ herald is treated with disrespect (3.121.1); it is possible that this is code for “and that is my evidence for the encounter”, but not very likely (the story hardly reflects well on the tyrant). Herodotus leaves it for his audience (and his commentators)21 to tease out any inferences about Polycrates as a patron of the arts. The same can be said about Arion, “who spent much of his time with Periander” (1.24). Arion was the first composer of dithyrambs (1.23), the Linus song is sung in Egypt (2.79), Aristeas composed his “Arimaspean poem” before disappearing (4.14.3) and the Olen hymn was brought to Delos by two Hyperborean maidens (4.35); all of these are interesting curiosities, none is “evidence” for anything more. Onomacritus’ forging of oracles was exposed by Lasus (7.6.3), but Lasus’ poetry and music are not even mentioned, and there is no indication or likelihood that he was the source. These cases still add rhetorically to their contexts: nearly all the readers and listeners will know of the poets, and their mention will have the effect of “zooming” the narrative (to use Christiane Sourvinou-Inwood’s 21

Cf. Asheri in Asheri-Lloyd-Corcella 2007, 508.

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term),22 relating it to items they already know—ah yes, that battle; ah yes, that must be the poet Lasus; ah yes, fancy Archilochus not caring about a man like that. Their own pre-existing knowledge can enrich the narrative by giving it that extra context and immediacy. What about Sappho? This comes closer to “evidence”. At 2.135 Herodotus tells of the Egyptian courtesan Rhodopis, whose freedom was expensively purchased by “a man from Mytilene called Charaxus son of Scamandronymus, the brother of Sappho the poet”. Rhodopis’ doings are set out, and the iron spits that she dedicated at Delphi are mentioned as a guide to her wealth (“great—for a Rhodopis”); and “when Charaxus returned to Mytilene Sappho poured abuse on him” (or, less likely, “her”) “in a song”. This certainly “zooms” to the audience’s previous knowledge— “ah yes, that song”, or at least “that Sappho”—and we can probably find a further implication “and that’s why we know about this”. Still, there is no suggestion that the poem was used as evidence for more than Charaxus’ generosity;23 it is the Delphic spits, not Sappho, that enable one to gauge Rhodopis’ wealth, and the courtesan’s famous successes will anyway have come at a time after Charaxus’ return to Mytilene and Sappho’s song of abuse. Wherever the rest of the story comes from (not that there is much more)—possibly erotic chatter and song in the men’s clubs, where Rhodopis may have figured as a great hetaira of old—24 it will not be that song. Herodotus may have made use of it because other evidence was so sparse. The spatium historicum, as some call it,25 extends back to a varying degree depending on the source material, and it goes further in Egypt than

22

Sourvinou-Inwood 1989. See Lidov 2002, 206, 213-214. I assume however, contra Lidov, that Herodotus drew the Charaxus element directly from Sappho’s poem; the combination of disparate elements shows several signs of what Fowler calls Herodotus’ “voiceprint” (Fowler 1996, 76 = 2013, 66), especially the use of Delphic sources and the linking of ȝȞȘȝİ૙Į to sexual matters. Hadjimichael 2019, 198-199 agrees that Herodotus will have known of the poem’s contents, though she doubts, I think unnecessarily, whether he had read the poem itself. 24 So Yatromanolakis 2007, 321-326; Nagy 2015. This is not the place to explore the complicated question of the identification of “Rhodopis” with the “Doricha” of Posidipp. F 17, Strabo 17.1.33 and Athen.13.496b-c. This has been much discussed in the context of Sappho’s recently discovered “Brothers poem”: cf. esp. Ferrari 2014, 9-12; Martin 2016, 118-120, Raaflaub 2016, 127-134; Gribble 2016, 30-41; Donelli 2021. 25 This is much discussed: see Baragwanath and de Bakker 2012b, 24-29, with bibliography at 24-25 n. 95; and esp. Hunter 1982, 86-90; Vannicelli 2001; Rood 2023. 23

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elsewhere;26 but there too Herodotus does differentiate the stages of this source material, and 2.99.1 marks the beginning of the phase where he is recounting “Egyptian logoi according to what I have heard, with an admixture of what I have seen myself”. This lasts until 2.147.1, when he indicates the start of the period covered by “what the Egyptians say in agreement with others”, again with additions from what he has seen; he later notes the beginning of extensive Greek dealings with Egypt so that “from the time of king Psammetichus we know everything, now and later, in detail” (2.154.4). Greek information on the pyramid-builders was clearly hard to come by; no wonder that he seized on whatever Sappho could offer for one name that came up. And yet it should not really have figured there at all, for Rhodopis lived much later, in the reign of Amasis (2.134.2). That does suggest one further point of “evidence”, for Sappho provides confirmation of her date; but even there Herodotus does not say so. His clinching point is that she was a fellow-slave of Aesop. It is no coincidence that his most critical treatment of the Homeric poems comes in that same tract of Egyptian narrative (2.112-20)—another rare occasion, then, when Greek and Egyptian traditions intersect. That is not the first appearance of Homer. At 2.23 Herodotus is radiating scepticism about an all-encircling “Ocean”, and “I think it was Homer or another early poet who found [or “made up”] the name and imported it into poetry”; then at 2.53.1-2 it is Homer and Hesiod, composing (as he thinks) some 400 years before him, who “created a theogony for the Greeks, gave the gods their names, parcelled out their honours and skills, and indicated the forms they took”. Homer is a creative and authoritative figure, then, but without any suggestion of particular access to the truth; there is no thought of the Muses there. As for the Trojan War, Herodotus has no doubt that it really happened,27 but Paris is given an un-Homeric motive; he had heard of the Greek theft of Medea and thought that he could get away with his own abduction of Helen (1.3.2)—no role there for a divine beauty contest, then— but the more significant element was the Greek escalation, taking it all so seriously as to send an army (1.4.1). So Homer clearly had the bones of a 26

Hunter 1982, 50-92; cf. Munson 2012, 200; Said 2012, 88-90; Baragwanath 2018, 294. 27 See esp. Saïd 2012. Strictly, all Herodotus generally affirms in his own voice is the destruction of Troy and the subsequent dispersal (Neville 1977, 7-9); the exceptions come in 2.118-120, where some statements are made in the indicative rather than oratio obliqua and various arguments presuppose a lengthy war with the Greeks and, at least, Paris’ abduction of Helen. In theory these could be explained by oral “downslip”, whereby a complex construction is abandoned for a simpler one rather than sustained over a long passage, but this seems unlikely: de Jong 2012, 131.

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story to work with, but equally clearly elaborated it considerably, shaping those gods, injecting some imaginary geography and colouring it in his own way. It is in Egypt that we see how thorough that remoulding could be. As in those preliminaries to Book 1, yes, there was a war and yes, it began with Paris’ abduction; but now it emerges that even in the shorter term Paris got away with it only to an extent, as far as the weather-enforced detour to Egypt. The shocked King Proteus sent him off without Helen and the goods that he had brought from Sparta, promising to keep them safe for Menelaus. Here too Greek sources have surely influenced his account, especially Stesichorus and possibly Hesiod, but Herodotus does not cite them; he attributes this version to the Egyptian priests, and it is what the priests say, not the poets, that counts as “evidence”.28 The author that he does cite is Homer, not for the version the Iliad gives but for this Egyptian account that he seems to me to have known; but, given that it was less fitting for epic composition than the other version that he employed, he abandoned it, indicating that he knew this one as well. (2.116.1)

The passage is often regarded as the earliest acknowledgement of “genre” and its expectations, though perhaps “for epic composition” (ਥȢ IJ੽Ȟ ਥʌȠʌȠȚȓȘȞ) means no more “for his epic composition”.29 This, he goes on, is clear from the way that he included (ʌĮȡİʌȠȓȘıİ) in the Iliad—and he nowhere else made himself take a step back (ਕȞİʌȩįȚıİ ਦȦȣIJȩȞ)—a story of Paris’ wandering.

Strong and striking words, but also enigmatic. ʌĮȡİʌȠȓȘıİ, if that is the right reading,30 is a rare word, and this would be its first extant occurrence. 28 The “Greekness” of the priests’ account is another puzzle (cf. n. 24 above) that we need not go into here. For the type of explanation I would myself favour, cf. Pelling 2002, 160-161 and in Pelling-Wyke 2014, 55. 29 That is how Ford takes it, 2002, 19. On the reasons why he might have thought it less fitting, see Verdin 1977, 60-61; Ford 2002, 150. 30 țĮIJ੹ (= țĮșૅ ਘ) ʌĮȡȑʌȠȚȘıİ is Bekker’s emendation of the MSS reading țĮIJ੹ Ȗ੹ȡ ਥʌȠȓȘıİ. It is bold to introduce so unprecedentedly early a use of the word by emendation, but it was approved by both Hude and Wilson in their OCTs, by Rosén in the Teubner and by Grethlein 2010, 154. Lloyd (Asheri-Lloyd-Corcella 2007, 32) and de Romilly in the Budé preferred țĮIJȐ ʌİȡ ਥʌȠȓȘıİȞ (Reiz), perhaps rightly. LSJ takes ʌĮȡĮʌȠȚİ૙Ȟ as “introduce an episode” into a poem, though the only parallels cited are two cases in P.Oxy. 1611 (ll. 165, 175) where both reading and

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Elsewhere it covers a range of “adjustments”, often suggesting something devious (see LSJ), and perhaps a “nuance of stealth or subterfuge” should be felt here too;31 or perhaps it should be taken in the most literal way, he “created” that suggestion “alongside” the main plot. ਕȞİʌȩįȚıİ ਦȦȣIJȩȞ is even harder to interpret. It should literally be “make himself step back”. LSJ and translators take it as “retracted” or “contradicted himself”, but it is safer to say, with Powell in his Lexicon, “the meaning is unclear”: Grethlein 2010, 155-156 takes it as “subject to critical scrutiny”, Godley in the Loeb as “return to the story”, the Cambridge Greek Lexicon as “bring [oneself] back to a version of a story in order to revise it”. Another possibility would be to take the point of “nowhere else” to be “in no other instance” did he (e.g.) go over the same ground twice, pointing to the singularity of this case when two incompatible versions might be sensed even though open inconsistency was avoided, and we should avoid injecting any sense of “retraction” or “contradiction”. Certainly, the one, two, or three quoted passages (again there is a textual issue)32 do not contradict the plot, for they simply indicate that Paris stopped off in Sidon and Egypt itself en route and that Menelaus spent some time in Egypt on his return journey. Consistency is again assumed then in 2.117, where the Cypria cannot be Homeric for it represents Paris as reaching Troy after a three-day voyage over smooth seas. That is inconsistent with what is clearly taken to be a coherent and unified picture in the genuinely Homeric poems. What emerges is a sophisticated picture of a sophisticated poet. Homer is seen as encoding references for a knowing audience;33 they, or enough of them, will recognize a gesture towards an alternative version, and will presumably reach their own conclusions, if they wish, on Homer’s reason for dropping such hints (to fend off accusations of ignorance of a tradition, or of what was true? To insinuate an explanation of why the rejected alternative might have arisen?). It is not too far from the modern suggestion that the Odyssey gestures towards an alternative version, in that case one interpretation are dubious; despite the approval of Grethlein 2010, 154 it is hard to think that the meaning here is so bland, and what would have been “introduced” is in any case not an “episode”. The Cambridge Greek Lexicon takes it as “introduce incidentally or mistakenly”. 31 Sammons 2012, 53 n. 2. 32 Hude follows Schaefer in retaining only the first of the three; Wilson marks the second and third with the symbol that he uses to indicate passages that may be Herodotus’ own later additions to his original version; that was suggested here by Powell 1935, 76. 33 So also Sammons 2012, esp. 55-57, who goes on to develop the analogies with early allegorical interpretations of Homer; cf. Graziosi 2002, 117 and 123; Kim 2010, 35-37.

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which has Penelope recognize Odysseus all along.34 Most importantly, it shows awareness not just that literary composition is an artful business, but that this has consequences for using such work as “evidence”. That project is not hopeless: it is exactly what Herodotus is doing here. But it is a delicate affair, and requires one to ask what the composer might have been up to for his or her own very particular purposes, and to compare that version with other sources. When there is no such corroboration, caution is needed: Priam was constantly losing two or three sons in every combat “if one can base such an account on what the epic poets say” (2.120.3). No wonder that Herodotus is so chary of using such evidence elsewhere. It is again when at the fringes of human knowledge, but in space rather than in time, that Homer crops up next.35 A reference in the Odyssey to horned cattle in Libya “bears witness” (ȝĮȡIJȣȡȑİȚ) to the hornlessness of Scythian cattle (4.29), though the inference is so obviously precarious that this may be tongue-in-cheek;36 Homer, or at least the Epigoni if that is Homeric (compare that scepticism about the Cypria at 2.117), had something to say about the Hyperboreans, and so did Hesiod, but it is not worth saying what it was, and Herodotus passes on to the fuller tradition preserved by the Delians (4.32). Then Cleisthenes barred the Argives from Sicyonian games in annoyance at Homer’s using “Argives” to refer to the Greeks (5.67.1). When pleading, rather ineptly, with Gelon of Syracuse to join them against Xerxes while denying him the leadership of the fleet, the Athenians appeal to Homer for their role at Troy (7.161.3), mirroring the equally inept Spartans’ half-quotation of a line from the Iliad when refusing to cede leadership on land (7.159). None of these—Cleisthenes, Spartans, Athenians—gives the impression of using Homeric authority aright; nor do the Athenians when they briefly mention the Trojan War in their exchange with the Tegeans before Plataea, and they hurriedly add that such long-ago material is better left aside (9.27.4). Such speakers were using Homer as the evidence for their propagandist claims, but the narrator-historian is unimpressed.37 34 E.g. Rutherford 2013, 94, “it is perfectly possible that the poet is consistently following one version while playing on the audience’s awareness of the other”; Currie 2016, 48-52, with references to previous scholarship. For other points of contact between Herodotus” approach and modern neoanalysis, see Currie 2020. 35 The same is true of one other reference to poetry: “not even” the mysterious Aristeas himself claims in his verses to have gone further than the Issedones (4.16.1, cf. 13.1, 14.3), but it does not sound as if it would have counted as good evidence even if he had. The “not even” suggests that such a work was less likely than others to be truthful (Verdin 1977, 63). 36 “Forse non senza ironia”, Marcozzi-Sinatra-Vannicelli 1994, 164. 37 Saïd 2012, 93-96.

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Rather different questions are raised by Herodotus’ citations of Simonides, along with other memorial couplets that might or might not be Simonidean. Perhaps these should be grouped with inscriptions, a class that raises different questions,38 but the poetry of the verbatim quotation does seem to lend the monuments a further resonance. The same goes for other inscribed epigrams that Herodotus does not link with Simonides, 4.88.2, 5.59-61, and 5.77.4, though at least the last may have been associated with Simonides from an early date.39 Simonides is mentioned twice. The first is brief: in Ephesus the Persians killed many including the Eretrian general Eualcides, “a man who had often won victors’ crowns in the games and was often greatly praised by Simonides of Ceos” (5.102).40 The more elaborate instance comes after Thermopylae, where three memorial inscriptions are cited verbatim, one couplet for the Peloponnesians as a whole and a second for the Spartans—the famous “go tell the Spartans …” (੯ ȟİ૙Ȟૅ, ਕȖȖȑȜȜİȚȞ ȁĮțİįĮȚȝȠȞȓȠȚȢ …)—and a third of four lines for the mantis Megistias. Herodotus associates Simonides explicitly only with the last of these, and as the man responsible for its inscription rather than as its composer, though that is doubtless implied.41 The first two he leaves anonymous, though “go tell the Spartans …” is attributed to Simonides elsewhere.42 The words themselves are what matter, not who wrote them. The epigrams are not presented as if the earlier narrative required confirmation, and the first is indeed inconsistent with what Herodotus has said—not that he thinks the discrepancy worth pointing out as if it were a genuine conflict of “evidence”.43 They are again evidence just for 38

On these, see especially West 1985; Osborne 2002, 511-513. I therefore pass over here the Boeotian dedications of 5.59-61. Herodotus is certainly using those epigrams as “evidence”, yet not as literature but for their script; inferences are drawn about the origins of the alphabet. For discussion, see West 1985, 289-295; Hornblower 2013, 179-181, criticizing West for being over-severe on Herodotus. 39 See Sider 2020, 66, though Petrovic 2007a, 220-222 is more cautious; cf. Erbse 1998, 223-225. 40 This is in the context of the burning of Sardis, and Donelli 2016a, 124-125 suggests that the mention of Simonides carries “significant ‘proleptic’ implications”: just as the burning was vindictively recalled in the context of the 490 and 480 campaigns (6.101.3, 7.1.1, 8 ȕ.3, 11.2), so the mention of Simonides might prompt the reader to think ahead to the great later battles which he commemorated. He marks the beginning and the culmination of that story. 41 See Petrovic 2007a, 236; Sider 2020, 76. 42 Cic. Tusc. Disp. 1.101 and Anth. Pal. 7.249; cf. Sider 2020, 89 and 91; Petrovic 2007a, 249. 43 Though many have pointed it out since: see esp. Vannicelli 2007, esp. 319-320 and in Vannicelli-Corcella-Nenci 2017, 581 ad loc., with references to previous

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themselves. But that “for themselves”—for the praise and eternal glory that they give—is important, and the triple accumulation adds to their force.44 It is doubtless right to see Herodotus’ history as in some sense in competition with commemorative epigram, as alternative ways of preserving the glory that great accomplishments deserve. The language of the proem conveys as much: Herodotus has written this “so that the things originating from humans should not become erased by time and great and wondrous accomplishments, some Greek and some barbarian, should not lose their glory”. “Erased”, ਥȟȓIJȘȜĮ, suggests the fading or erosion of words on stone; Herodotus’ words may last better.45 But history and epigram can collaborate as well as compete. The verses are worthy of the “wondrous” battle; they are wondrous themselves. They sound down the ages, and Herodotus does not shy from adding their voice to his own.

3 Later things would change, but not quickly and not by much. Thucydides quotes fewer epigrams than Herodotus (1.132.3, 6.54.7, 59.3), but he does squeeze them harder for “evidence”.46 It is another question how well he does it; in the case of his hardest squeezing (6.54.7), arguably not very well at all.47 His use of Homer has often been contrasted with that of Herodotus, with some finding him more credulous and some more circumspect,48 and this requires a fuller discussion than can be given here: my own view is that the similarities are substantially greater than the differences. Like Herodotus, Thucydides knows that poets have their own job to do, and truth may suffer (1.10.3, cf. 11.2). Like Herodotus, he can therefore be sweeping: believe what I say, not “the hymns that the poets have created, enhancing everything as they do” (1.21.1); he has nothing valuable to say about scholarship. The discrepancy concerns the numbers concerned and the limiting of the memorial to the Peloponnesians; the omission of the Thespians is particularly striking in view of the stress on their contribution just before at 7.226-227. 44 West 1985, 288; Erbse 1998, 215-218. 45 Cf. esp. Luce 1997, 26; Moles 1999, 49-51 = 2022: 386-389; Bakker 2002, 30-31. 46 Cf. Petrovic 2007b, 55, Thucydides “weaves his story around the epigrams and actually draws his information from a poem” in a way that Herodotus did not. 47 Cawkwell 1997, 11; cf. Pelling 2022a on Thuc. 6.55.1. 48 More credulous: Gomme in Gomme-Andrewes-Dover 1945-1981, 109-110; Hunter 1980, 192-193. More circumspect: de Romilly 1967, 244-245 = 2012, 147. For a different contrast cf. Nicolai 2001, 284, “while Herodotus almost parades his refusal to use the epic as a source, Thucydides undertakes to make use of it, trying to distinguish in it what is trustworthy and what is simply poetic embroidery”. I would bring the two much closer together.

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Cyclopes and Laestrygonians: “let what the poets say and each person’s opinion suffice” (6.2.1). The big differences come in the questions each puts to the material, with Thucydides more concerned to find points that resonate with his own war—the importance of sea-power and the vulnerability of coastal towns, the power of wealth, the necessity for an invading force to fight and win a battle on arrival (1.11.1-2). We cannot be sure when Thucydides wrote this, but anyone reading them after Athens’ failure in Sicily might nod sagely.49 Thucydides’ Demosthenes criticizes Nicias for failing to follow up his initial successes (7.42.2), and there is good reason to think that the narrator thought the same.50 The most important similarities are in what they do not do. We noted that Herodotus had recourse to such evidence only in extremis, when more reliable conduits for the truth were not available. For Thucydides too the Archaeology addresses a history that was particularly difficult to reconstruct (1.1.3). He asks his readers to accept only that “the truth has been discovered from the clearest indications to an adequate degree, given that these things happened long ago” (1.21.1): in Aristotelian terms, the level of precision depends on the nature of the material (Arist. Nic. Eth. 1.1094b11-14, 1098a26-29). One cannot imagine him using Euripides to illustrate Athenian war-weariness, or Aristophanes for the origins of the war or Nicias’ successes or delays, or the comic poets for public reactions to Pericles or to Alcibiades, points that came readily to Plutarch (respectively Nic. 9.7; Per. 30.4, Nic. 17.4 and 18.3; Per. 8.4, 13.8-10, 16.2, 25.9-10, 33.8, 39.2, and Alc. 16.2-3). He did not need them for contemporary history in the way that Plutarch would need them for the history that by his time was already ancient. For Thucydides as for Herodotus, such evidence must be raided only faute de mieux. Later, it does seem likely that Ephorus cited Aristophanes and Eupolis on the origins of the Peloponnesian War (FGrH 70 F 196 = Diod. 12.3841.1);51 if so, it was probably again to fill a perceived gap, in this case one 49 Hunter 1982, 40-41 and esp. Kallet 2001, 97-115 suggest further points of contact with the Sicilian expedition. 50 On this at least the commentators largely agree, with minor variations: see the notes ad loc. of Dover in Gomme-Andrewes-Dover 1945-1981; Hornblower 19912008; Pelling 2022b. 51 Barber 1935, 109-112 and 127-128; Parker in BNJ; Parmeggiani 2011, 417-422, 436-438 and 2014 assume that Diodorus drew the citations from Ephorus. But, as Parmeggiani 2014, 120-121 acknowledges, Diodorus’ final summary—“the causes of the Peloponnesian War were somewhat along these lines (IJȠȚĮ૨IJĮȓ IJȚȞİȢ), as Ephorus recorded”—indicates only “that this is approximately what Ephorus said”, and “the reader … is prompted to wonder whether Ephorus actually said all of this”. It is also possible that he cited Tyrtaeus on the Messenian Wars (F 216: cf. Parker

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caused by Thucydides’ reticence concerning the personal attacks.52 Then Duris of Samos cited poetry to demonstrate the booziness of ancient warriors (FGrH 76 F 15, Homer), the luxury of the Samians (F 60, Asius), and the flattery of the Athenians (FF 10 and 13, verses of Seiron and an ithyphallic hymn).53 Timaeus quoted Pindar for the foundation-story of Acragas (FGrH 566 F 92), and included what seem to be pleasantries about Homer, Hesiod and Aristotle (FF 152, 157).54 Polybius scattered literary flourishes throughout his work, and Scipio Aemilianus’ quotation of Homer forms a climactic moment (38.22.2)—but what is telling is that Scipio said it, text as history once again. One cannot imagine Polybius engaging with Naevius or Ennius on the Punic Wars in the way that he engages with Fabius Pictor (3.8-9). It is not until much later that things are really different. Dionysius of Halicarnassus in his Antiquities and Diodorus are both much fuller in poetic citations, and Diodorus makes full use of Demosthenes’ speeches;55 Appian cites Plato’s Apology at Syr. 41.212; Herodian comments that Marcus Aurelius’ cultivation is clear “from the writings and speeches that have come down to us” (1.1.3).56 By then these too are fair game for the serious historian. But it took its time for historiography to get there.

4 Why should this be? Conventions do not just happen. Why regard the Athenians’ reaction to Phrynichus as a telling indication of the times but not the play itself (Hdt. 6.21.2, p. 265 above)? Maybe that story itself contains a part of the answer; a playwright may misjudge his audience just as Phrynichus did, and one person’s idiosyncratic take on events needed to be viewed with caution. But that takes us only so far. Herodotus knew how to winnow the valuable from the chaff. We have seen him doing just that, extracting what he needs from Homer or Solon or Simonides. It is just that he is very selective in identifying that need.

2004, 29-30 and in BNJ), but it is far from clear that Strabo is still quoting Ephorus at that point (6.3.3). 52 So Strasburger 1961, 16 = 1982-1990, 804. 53 Baron 2017, 219-226. 54 For the tone of FGrH F 157 cf. Baron 2013, 117-119. 55 See, e.g., Bosworth 1971, 95. 56 Thanks to Luke Pitcher for pointing out these last two passages. It is unclear whether by “these writings” Herodian means the Meditations: see the note of Whittaker 1969, 9.

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A larger part of the answer may be that poetry was simply too close; and the more we realize how often poetry presented narratives of real-life past events57 and the more we stress the historians’ “poetic” techniques,58 the closer it all seems. It was important that prose historie should not appear as just a pedestrian equivalent, shorn of its finery but still telling the same tales in the same manner (cf. Arist. Poet. 9-10.1451a36-b11). It is reasonable to think of the historians as at times writing “against” the poets;59 Herodotus’ Helen is not Homer’s, his Croesus is not Bacchylides’ and his Plataea is not Simonides’; if Thucydides is maintaining a combative silence over popular views that this was “Pericles’ war”, he would know that the comic poets had generated such talk.60 But it was important to keep one’s distance, more important for a close neighbour than it would be for Plutarch or Aristotle or Strabo or Pausanias. Thucydides marks out his difference from “the poets” explicitly and programmatically at 1.21.1 (p. 274 above); Polybius would later insist that tragedy and history had different aims, and this is where the likes of Phylarchus went wrong (2.56.10-12, cf. 4.40.2). Herodotus’ manner is less confrontational, but his readers and listeners might catch the insinuation very soon—not, after all, that far into Book 1—that there was no need to belabour Bacchylides for getting it wrong about Croesus. Poets were simply doing something different. They had their place, but this was not it. Strong fences, then, make good neighbours. Herodotus knew that well.

57

Bowie 1986, 27-33 and, with further instances and discussion, 2018, 62-69. E.g. Chiasson 2012. 59 Marincola 2006, esp. 14, 21-22; cf. Grethlein 2010. 60 “Combative silences”: Pelling 2000, 94, 103-111. Thucydides writing against the comic version: Henderson 2017. 58

CHAPTER 21 NACHOR THE FALSE WITNESS: THE GREEK METAPHRASE OF ARISTIDES’ LOST APOLOGY IN THE NOVEL OF BARLAAM AND JOSAPHAT AND ITS OLD FRENCH VERSION (COD. ATHON. IVIRON 463) EMESE EGEDI-KOVÁCS

In chapters 26-27 of the novel Barlaam and Josaphat, King Abener, in an attempt to turn his son away from the Christian faith, organizes a theological debate in which one of the participants, Nachor, poses as Barlaam, Josaphat’s master. According to the king’s plan, the “fake Barlaam” will speak so badly about Christianity that the other speakers will easily outdo him, causing Josaphat to renounce his faith. But Nachor’s speech has the opposite effect: not only does he fail to convince Josaphat, but he himself converts to Christianity in the process. The speech in the Barlaam novel, Nachor’s pseudo-testimony, is in fact a transcription of Aristides’ Apology, a sermon which, although it is mentioned by Eusebius and St Jerome, was considered lost until 1878. In the 19th century, Armenian and Syriac translations came to light, as well as Greek papyrus fragments also preserving excerpts from the original text of the sermon. In the light of the Greek fragments, it became clear that the fictional saint’s biography Barlaam and Josaphat also preserved a metaphrase of the sermon in Greek. Codex Iviron 463, which contains the Greek abridged version of the Barlaam novel, includes not only the Greek transcription of the Apology,

The study was supported by the NKFIH grant NN 124539 (Textual Criticism in the Interpretation of Social Context: Byzantium and Beyond). The author would like to express her gratitude to Boldizsár Fejérvári for his advice on the English text of the paper.

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but also its Old French translation. In addition to an overview of the afterlife of the Apology and an examination of the role of the “loaned text” within the narrative, this chapter will also provide extracts from the previously unpublished Greek and Old French versions of the apology preserved in the Iviron codex. The original version of the fictional hagiography Barlaam and Josaphat, considered a Christian legend in the West, may have been a Sanskrit narrative of the life of the Buddha. It was through Arabic and then Georgian intermediaries that the story reached Byzantium, where it was translated into Greek and became a Christian legend. Earlier tradition erroneously attributed the writing of the Christian version to St John of Damascus, but it is more likely that the Greek translation was the work of a Georgian monk, Euthymius the Athonite.1 According to the Christian version, Abener, the pagan king of India, is determined to persecute the followers of the new religion, Christianity. However, when his son Josaphat is born, astrologers predict that the child will himself convert to Christianity when he grows up. King Abener, to prevent the prophecy from coming true, keeps his son carefully locked away from the outside world in his palace, so that his child will never know the miseries of life on earth. Despite all his precautions, however, the boy one day comes face to face with reality and meets a hermit named Barlaam, who converts him to Christianity and, despite his father’s anger and machinations, he perseveres in his faith. In the scene mentioned in the introduction (chapters 26-27), King Abener organizes a theological debate, hoping to dissuade his son from the Christian faith. With his adviser Arachis, he devises a plan to bring Nachor, a pagan astrologer bearing a striking resemblance to Josaphat’s master, Barlaam, to court. Their plan is that during the debate, the “fake Barlaam” will speak in defence of Christianity, but he will argue so ineffectually that he will be easily outdone by the other speakers. Nachor will then admit defeat, recanting all his teachings, and Josaphat will return to the faith of his ancestors. Before the debate begins, however, Josaphat is warned in a divine vision and, now aware that Nachor is not his master, he addresses the “false Barlaam” threateningly: if he defends the faith Josaphat was taught, the prince will remain in the teaching for the rest of his life. If, however, the self-styled theologian is defeated by the rhetoricians, Josaphat’s shame will be visited upon him for having led a royal heir astray. Nachor is horrified, realizing that he has fallen into his own trap. He eventually decides he had better side with the prince if he is to avoid mortal peril. In his speech, therefore, he fervently defends the Christian faith, and finally speaks so 1

For more detail on the author and the genesis of the work, see Volk 2006, VI/1, “Einleitung”, passim.

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convincingly that the rhetoricians, unable to respond, stand silent. The king then angrily dissolves the assembly, adjourning the meeting. Josaphat, being left alone with Nachor, tells him that he has known of the plot all along, and then preaches to him of the true way. Nachor himself is converted and baptized, and he goes on to live as a hermit in the wilderness. The theological debate organized by the king, and Nachor’s speech, thus have the opposite effect to what was intended: not only do they not divert Josaphat from Christianity, but they also cause the pagan astrologer to convert. The author of the novel did not leave the composition of Nachor’s persuasive argument to chance: as mentioned in the introduction, for the speech of the pseudo-Barlaam, he used the Apology of the second-century philosopher and Christian apologist Aristides of Athens which, according to early records, was a persuasive argument for the Christian doctrine. Aristides is traditionally said to have addressed his apology to the Emperor Hadrian, who visited Athens in 125. According to the sources, it was on that occasion that Aristides gave him his apology in praise of the Christian Church. Until 1878, the apology was thought to have been lost. Although some early authors referred to the work, no details of the content of the speech were given. One mention comes from Eusebius of Caesarea (c. 260-339) who, in the fourth chapter of his History of the Church (HE 4.3.3), refers to the Apology attributed to Aristides, which he claims was addressed by the Athenian philosopher to the Emperor Hadrian, and adds that the speech has been preserved by many.2 The Chronicle of Eusebius, which has survived in Armenian translation as well as in Jerome’s Latin version (Chron. ad ann. 125-126), is also terse about the speech, stating merely that Aristides addressed Hadrian.3 St Jerome (~350-420) mentions Aristides’ Apology in two of his epistles (ad Magnum oratorem, Ep. LXX, 4; De viris illustribus, Ep. XX):4 he praises Aristides’ eloquence and talent, and he notes that the speech is rich in citations taken from philosophers. However, he does not give any further details about the content of the text. Although no Latin translations of the Apology are known, an early Roman martyrology mentions Aristides as an apologist: the calendar lists 31 August as his feast day.5 It is surprising, however, that Aristides’ name does not 2

Eusebius Werke (Schwartz 1903) 304.3-6; Pouderon 2003, 25; Volk 2006, VI/1, 123 n. 102. 3 Eusebius Werke (Karst 1911) 220; Pouderon 2003, 25-26; Volk 2006, VI/1, 123 n. 103. 4 Sancti Eusebii Hieronymi Epistulae 70.4 (Hilberg 1910, 704.15-705.7); Volk 2006, VI/1, 124 n. 105; Hieronymus, Liber de viris inlustribus 20 (Richardson 1896, 20.812); Volk 2006, VI/1, 124 n. 106; Pouderon 2003, 27. 5 Le Martyrologe romain 1676, 274; Pouderon 2003, 27.

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appear in the Greek martyrologies.6 The last mediaeval mention of the Apology is found in the martyrology of Ado of Vienne (Ado Viennensis, ninth century), written in 858.7 The Apology would only be mentioned again in a letter by G. Witzel to his publisher in the 16th century,8 and in a 17thcentury work by Georges Guillet de Saint Georges, who refers to a contemporary who boasts that the Apology is to be found in the monastery library of Medelli, near Athens.9 According to Harnack, the manuscript is the invention of the contemporary in question, who based his claim on the comment by Ado of Vienne that “Aristides’ work was most highly esteemed among Athenians of the time”.10 Volk points out, however, that the work quoted by Harnack dates from a time when it was not known that several Greek language extracts from Aristides’ text had survived in the Barlaam novel and on papyrus fragments. Volk then goes on to explain that other contemporary sources also suggest that the claim may well have been untrue, since the original version of Aristides’ speech was probably no longer located in any monastery around Athens at the time.11 Thus, although there are sporadic references to the Apology, the text itself, partly in the form of translations and Greek fragments, only surfaced in the 19th century. In 1878, the Mechitarist monks of the monastery of San Lazzaro in Venice published an Armenian fragment of Aristides’ Apology.12 In 1889, J. Rendel Harris discovered a Syriac version of the discourse in the monastery of St Catherine at Mount Sinai, which he published two years later. While he was working on the publication of the text, he sent some fragments to a fellow-scholar, Joseph Armitage Robinson, who demonstrated that the Greek version of the sermon had in fact been known for a long time, since it was included in an episode of the novelistic hagiography Barlaam and Josaphat.13 At the same time, Georgian scholars had also succeeded in showing that the anonymous author of a sixth-century Georgian work (Martyre d’Eustathe de Mzchetha) also inserted some extracts from the Apology into his narrative.14 Shortly afterwards, papyrus 6

Harnack 1893, 98; Pouderon 2003, 27 n. 2. Martyrologe d’Adon (Dubois and Renaud 1984) 344; Pouderon 2003, 28. 8 Witzel. 1537, f. Qq2 ro-vo; Pouderon 2003, 24. 9 Guillet de Saint George (Sieur De la Guilletière) 1676, 145-146. For more detail, see Corpus Apologetarum Christianorum Saeculi Secundi (von Otto 1872) 343-344; Pouderon 2003, 24; Harnack 1882, 106; Pouderon 2003, 24; Volk 2006, VI/1, 124128. 10 Harnack 1882, 106. See Volk 2006, VI/1, 125 n. 109. 11 Volk 2006, VI/1, 125-128. 12 Mechitaristae 1878, 8-9; Pouderon 2003, 23. 13 See “Preface to first edition” Harris and Robinson 1893. 14 Pouderon 2003, 23-24. See Volk 2006, VI/1, 131. 7

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fragments of the original Greek version would also be recovered.15 Codex Iviron 463, preserved on Mount Athos, is one of the manuscripts that contain an abridged version of Barlaam and Josaphat in Greek. The manuscript is unique in that it contains, in the margins of all 135 folios, an Old French translation of the main Greek text, which is completely different in philological terms from the known and published Old French versions of the novel. The Iviron manuscript thus includes not only the Greek metaphrase of the Apology, but also a hitherto unknown Old French translation. Although Paul Meyer drew attention to the Old French text by an unknown author in his 1866 study,16 the codex has received little attention in the literature to date, and no transcription of the text has been made. According to recent research, the manuscript may have been produced in the Lophadion monastery in Constantinople in the early fourth quarter of the 11th century (around 1075).17 The French text has been dated to the early 13th century,18 but my research on the manuscript suggests that the French text is older than previously thought, and may have been written in the margins at the same time as, or shortly after, the Greek codex was produced. My research serves to prepare a critical edition of both the Greek and Old French texts of the manuscript.19 In order to restore the Old French text, which survives in a fragmented form because of damage the codex has suffered, it was indispensable to transcribe the Greek text of the codex as well. Although the various versions of the Greek Barlaam novel are now well known thanks to the Loeb Classical Library series20 and the critical 15 P.Oxy. 1778; P.Lit.Lond. 223; the more recently recovered Heidelberg inv. G 1013 fragment supplements the earlier discovered P.Oxy. 1778. See Hagedorn 2000, 40-44. 16 Meyer 1866, 313-334. 17 See D’Aiuto 1997. A number of scholars have attempted to date the Iviron codex (12th to 14th centuries): Lambros 1895-1900, 149; Kondakov 1902, 292-294; Der Nersessian 1937, 24; Dölger 1953, 5; Weitzmann 1963, 105-107; Lazarev 1967, 282, 334 n. 47; Pelekanides et al. 1975, 308; Pérez-Martín 1996, 176-177. 18 Earlier assumptions about the dating of the Old French manuscript and the circumstances under which the translation was made were based primarily on the claims of Paul Meyer, who dated the Old French text of the Iviron manuscript to the beginning of the 13th century (Pérez-Martín 1996, 176-177; Agrigoroaei 2014). It is important to stress, however, that the eminent scholar had an opportunity to study only 19 of the 270 pages of the manuscript, and not even those 19 in their completeness. Thus, Meyer could not have known the complete Old French text, its linguistic and literary peculiarities, or its relationship to the original Greek version. 19 On the preparations for the critical edition of Codex Iviron, see Egedi-Kovács 2014, 2016, 2017a, 2017b, 2018a, 2018b, 2019a, 2019b, 2020a, 2020b, 2021. 20 Woodward and Mattingly 1967.

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edition by Robert Volk,21 the idiosyncratic readings of the text of the Iviron codex are not included in these editions and have not been previously examined. The structure of the Apology is relatively straightforward: it begins with a short prologue in which the speaker defines the nature of God and then classifies humanity according to its various religions, followed by a detailed discussion of each people and their religious cults in the remainder of the speech, in the order of the author’s assessment, and the text ends with a description of Christians and a brief conclusion.22 In the various surviving versions of the Apology, we find divergent divisions. The Syriac translation distinguishes four groups: barbarians, Greeks, Jews and Christians. The Greek version in the Barlaam novel, on the other hand, divides mankind into three groups: worshippers of false gods (three peoples are mentioned in particular: Chaldeans, Greeks and Egyptians), Jews and Christians.23 The metaphrase in Greek in the Barlaam novel is certainly shorter than Aristides’ original speech (as far as it can be reconstructed from the Syriac version):24 the author of the hagiography evidently tried to tailor the text to the context of the narrative, shortening it in some places so as not to burden the reader with unnecessary detail, but adding references to the argument as relevant to the plot in other places.25 The speech begins with a discussion of the Chaldeans and their misguided fetishism: they worshipped the elements and served the creatures rather than the Creator. Then we come to the Greeks, whose myths are criticized by the Christian speaker, who discusses at length the “whatabouts” of the Greek gods. He argues that the crimes of the ridiculous and insane gods imagined by the Greeks merely serve to excuse people who commit similar sinful acts. Sadly, this very passage is omitted from the abridged versions of the Barlaam novel, including the Iviron codex, with only Cronos and Zeus mentioned. The Apology also condemns the Egyptians who, the orator claims, were even more foolish and stupid than the Greeks, and the most mistaken of all peoples. The speaker then turns briefly to the Jewish people. He praises their faith in a God but reproaches them for their ignorance and ingratitude, because they often served pagan cults, while they killed the prophets and righteous men sent to them. Finally, in the last and most important part of his defence, the speaker praises Christians, who he believes are the closest to the truth. He praises their uprightness, their restraint, their fraternity, their compassion and their 21

Volk 2006. See Pouderon 2003, 173-177. 23 See Pouderon 2003, 150-152. 24 See Pouderon 2003, 144-149, 156-158, 171. 25 See Pouderon 2003, 149. 22

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piety, which he describes as the “pathway of righteousness” (ਲ ੒įઁȢ IJોȢ ਕȜȘșİȓĮȢ) that “leads those who walk on it to the eternal kingdom” (ਸ਼IJȚȢ IJȠઃȢ ੒įİȪȠȞIJĮȢ Į੝IJ੽Ȟ İੁȢ IJ੽Ȟ ĮੁȫȞȚȠȞ ȤİȚȡĮȖȦȖİ૙ ȕĮıȚȜİȓĮȞ). Codex Iviron 463 preserves an abridged version of the novel, in which the borrowed text is also shorter than the speech in the other versions of the Barlaam novel: in the manuscript, the transcription of the Apology— presented as Nachor’s speech in the novel—fills seven folios of the codex (f. 77v-f. 83v). The Old French text in the margin of the manuscript is an exact translation of the main Greek text. However, one may observe stylistic differences between the two versions: while the Greek text, with its sophisticated idiom, is rich in classical rhetorical figures, unsurprising in a work by a second-century Athenian philosopher,26 the French text is somewhat simpler, both lexically and stylistically, mainly because of the crudeness of the emerging vernacular. In structure and style, the Greek version of the speech follows the ancient rhetorical practice: a carefully constructed text full of logical arguments and rich in rhetorical devices. For example, the Greek text of the hagiography contains several instances of figura etymologica: țĮ੿ ਵȡȟĮȞIJȠ ıȑȕİıșĮȚ IJ੽Ȟ țIJȓıȚȞ ʌĮȡ੹ IJઁȞ țIJȓıĮȞIJĮ Į੝IJȠȪȢ. … and began to worship the creature rather than their Creator. (trans. Woodward and Mattingly) ȀĮ੿ Ƞ੝ ıȣȞોțĮȞ ੖IJȚ ʌ઼Ȟ IJઁ IJȘȡȠ૨Ȟ ȝİ૙ȗȠȞ IJȠ૨ IJȘȡȠȣȝȑȞȠȣ ਥıIJ੿ țĮ੿ ੒ ʌȠȚ૵Ȟ ȝİȓȗȦȞ IJȠ૨ ʌȠȚȠȣȝȑȞȠȣ ਥıIJ੿. They have not understood how that which guardeth is ever greater than that which is guarded, and that the maker is greater than the thing that is made. (trans. Woodward and Mattingly)

In the Old French translation, however, the stylistic element in these passages is gradually simplified and then disappears. In the first case, we still find the French expression corresponding to the Greek form: … se [mirent] a servir les cri[atures] ançois que le cri[ator …

but the figure is reduced to a simple repetition at the second locus:

26

Pouderon stresses that, although the Syriac and Armenian versions reveal most of the content of Aristides’ original speech, it is certainly the Greek version in the Barlaam novel that is closest to the original; see Pouderon 2003, 110, 149.

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only to vanish completely in the second part of the sentence: … e que li cri[atu]rs est plus grans que ce qui est fait.

The symmetrically arranged participles, which give the Greek text its conciseness, are also sought for in vain in the Old French translation, where they appear merely as simple conjunctions: țĮȓ ıȣȖțȜİȓıĮȞIJİȢ ȞĮȠ૙Ȣ ʌȡȠıțȣȞȠ૨ıȚ șİȠઃȢ țĮȜȠ૨ȞIJİȢ, Ƞ੠Ȣ țĮ੿ IJȘȡȠ૨ıȚȞ ਕıijĮȜ૵Ȣ, ੆ȞĮ ȝ੽ țȜĮʌ૵ıȚȞ ਫ਼ʌઁ ȜૉıIJ૵Ȟ. And they enclose them in temples, and worship them under the title of gods, and guard them in safety lest they be stolen by robbers. (trans. Woodward and Mattingly) e lor fi[rent t]emples (= ıȣȖțȜİȓıĮȞIJİȢ ȞĮȠ૙Ȣ) e les aoroi[ent e le]s nomoient dios (= șİȠઃȢ țĮȜȠ૨ȞIJİȢ) [e les g]uardent chie[rem]ent que li larrun n’enblent.

The “apophatic” enumeration of the nature of God in the two passages which will be analysed in detail later is also lost in the Old French translation. To begin with, there is only one instance of a privative expression similar to the Greek text that gives the enumeration a distinctive character (inmortel). Instead, there are instances of the structure “sans” + noun (sans comencement, sans definement), or “nient” + participle/adjective (nient criés, nient formés, nient mesurés, nient enclos, nient veables, nient comprehendable, nient malesié), while there are further examples of the translator simply circumscribing the concept (tos jors fu, tos jors sera): cod. Iviron 463, f. 24v: ȅ੤IJȠȢ Ƞ੣Ȟ ੒ ਥȞ IJȡȚı੿Ȟ ਫ਼ʌȠıIJȐıİıȚȞ İੈȢ șİȩȢ, ਙȞĮȡȤȩȢ ਥıIJȚȞ țĮ੿ ਕIJİȜİȪIJȘIJȠȢ, ĮੁȫȞȚȩȢ IJİ țĮ੿ ਕǸįȚȠȢ, ਙțIJȚıIJȠȢ, ਙIJȡİʌIJȩȢ, ਕıȫȝĮIJȠȢ, ਕʌİȡȓȖȡĮʌIJȠȢ,27 ਕʌİȡȚȞȩȘIJȠȢ, ਕȖĮșઁȢ țĮ੿ įȓțĮȚȠȢ ȝȩȞȠȢ. He then is in three persons one God, without beginning, and without end, eternal and everlasting, increate, immutable and incorporeal, invisible, infinite, incomprehensible, alone good and righteous. (trans. Woodward and Mattingly) 27

The text of the Iviron manuscript omits the word “ਕȩȡĮIJȠȢ,” which is surprisingly present in the Old French translation. For my comments on this, see Egedi-Kovács 2017b, 123-124; 2018b.

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Cis est [en troi]s persones un s[eul deu sans c]omencement est [e sans] definement [tos] jors fu e tos [jors se]ra. Il est ni[ent c]riés nient for[més] nient mesu[ré]s nient enclo[s] nient veables [nien]t comprehenda[ble b]enignes e sols [droi]turiers. cod. Iviron 463, f. 78r: ǹ੝IJઁȞ Ƞ੣Ȟ ȜȑȖȦ İੇȞĮȚ șİઁȞ, IJઁȞ ıȣıIJȘıȐȝİȞȠȞ IJ੹ ʌȐȞIJĮ țĮ੿ įȚĮțȡĮIJȠ૨ȞIJĮ, ਙȞĮȡȤȠȞ țĮ੿ ਕǸįȚȠȞ, ਕșȐȞĮIJȠȞ țĮ੿ ਕʌȡȠıįİો … Him therefore I call God, who constructed all things and sustaineth them, without beginning, without end, immortal, without want … (trans. Woodward and Mattingly) Celui] di je deu q[ui tot es]tora e tot m[eintint.] Qui est san[s comen]cement e sa[ns define]ment e in[mortel] e nient ma[laisié] …

The speech of Aristides is by no means the only “borrowed” text in the fictional hagiography of Barlaam and Josaphat: the story accommodates a number of framed narratives and parables, with the author apparently taking whole passages from earlier works. He quotes longer passages from the Old and New Testaments, which he does not seem to be writing from memory but quoting (or, even more so, copying) verbatim, but he also borrows a good deal from the Church Fathers: the words of St Gregory of Nazianzus or St Basil the Great often appear in the text as an integral part of the work.28 The Barlaam and Josaphat fictional hagiography is a good example of the mediaeval practice of compilation, which was often used by mediaeval authors whose dictionaries, as Maurice Picard notes, did not yet include such concepts as “literary property” and “plagiarism” (to the great good fortune of posterity, it should be added).29 However, I do not share Picard’s view regarding the embedding of the Apology in the Barlaam novel, which he considers to have been a simple copy-and-paste procedure of a text that more or less fitted the author’s ideas, even if it is true that sharing a refutation of the Hindu religious doctrines would have been more appropriate, and that the greatest rivals of seventh-century Christianity were not the Chaldean, Greek and Egyptian religious cults.30 This procedure, 28 For more detail on the sources of the work, see Volk 2006, VI/1, “Die Quellen”, 96-140. 29 Picard 1892, 20-21. 30 Picard 1892, 20-21. It should also be noted, on the other hand, that for the Byzantines, who at that time still considered themselves “Romaioi”, that is, “Romans”, the “Hellenic” heritage with its pagan connotations could have given rise to ambivalent feelings, to which they themselves did not yet know exactly how to

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whereby the author of a novel takes extracts from earlier works almost without alteration, was not unknown in the Middle Ages. An example is the surviving Latin version of the novel Apollonius of Tyre: at two points in the narrative there are riddles leading to a crucial insight for the protagonist. At the beginning of the novel, Apollonius uses a riddle to reveal the king’s incestuous relationship with his own daughter, and at the end of the narrative the protagonist discovers his daughter, who he has thought was dead, through riddles.31 The interpretation of these passages long puzzled philologists, since the content of the riddles does not really fit the story, and the parallels are far from clear enough to lead the protagonist to the truth. That is, until it was discovered that the riddles in the second scene, which are performed by Apollonius’ daughter Tarsia, are in fact taken from a contemporary collection of riddles: they were borrowed by the unknown author who produced the Latin translation (or rather adaptation/Christianized excerpt)32 from the volume of the African-born poet Symphosius, presumably to replace the difficult-to-translate riddles in the original Greek text.33 In the case of the Barlaam novel, however, the borrowed text does not seem to be an “alien body” within the narrative; on the contrary, it is an integral part of it, in terms of both content and narrative. Pouderon points out that the author of the hagiography tried to adapt the text of the Apology to the context of the narrative by means of minor abridgements and insertions. However, I would also draw attention to another interesting aspect: the author seems to have taken care not only to ensure that the borrowed text was in keeping with the content of the episode in question. The careful compilation of the speech of the pseudo-Barlaam/Nachor also reflects narratological considerations. One of the most important elements of the sermon intended to justify Christian doctrine is undoubtedly the definition of the nature of God, which is given at the very beginning of the speech, during the introduction: cod. Iviron 463, ff. 77v-78r: ਫȖȫ, ȕĮıȚȜİ૨, ʌȡȠȞȠȓ઺ șİȠ૨ ਷ȜșȠȞ İੁȢ IJઁȞ țȩıȝȠȞǜ țĮ੿ șİȦȡȒıĮȢ IJઁȞ Ƞ੝ȡĮȞઁȞ țĮ੿ ȖોȞ țĮ੿ IJ੽Ȟ șȐȜĮııĮȞ, ਸ਼ȜȚȩȞ țĮ੿ ıİȜȒȞȘȞ țĮ੿ IJ੹ ȜȠȚʌȐ ਥșĮȪȝĮıĮ IJ੽Ȟ įȚĮțȩıȝȘıȚȞ IJȠȪIJȦȞ. ੉įઅȞ į੻ IJઁȞ țȩıȝȠȞ țĮ੿ IJ੹ ਥȞ Į੝IJ૶ ʌȐȞIJĮ ੖IJȚ țĮIJ੹ ਕȞȐȖțȘȞ țȚȞİ૙IJĮȚ, ıȣȞોțĮ IJઁȞ țȚȞȠ૨ȞIJĮ țĮ੿ įȚĮțȡȓȞȦȞ IJઁ relate. A critique of Greek mythology from a Christian point of view was therefore certainly not uninteresting for the contemporary reader. 31 See Wolff 1999, 279-288; Egedi-Kovács 2012, 69-72. 32 Kortekaas 2004 argues that the surviving Latin language novel may have been an adaptation of an earlier Greek novel now lost. 33 See Wolff 1999, 282.

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İੇȞĮȚǜ ʌ઼Ȟ Ȗ੹ȡ IJઁ țȚȞȠ૨Ȟ ੁıȤȣȡȩIJİȡȠȞ IJȠ૨ įȚĮțȡĮIJȠȣȝȑȞȠȣ ਥıIJȓȞ. ǹ੝IJઁȞ Ƞ੣Ȟ ȜȑȖȦ İੇȞĮȚ șİઁȞ, IJઁȞ ıȣıIJȘıȐȝİȞȠȞ IJ੹ ʌȐȞIJĮ țĮ੿ įȚĮțȡĮIJȠ૨ȞIJĮ, ਙȞĮȡȤȠȞ țĮ੿ ਕǸįȚȠȞ, ਕșȐȞĮIJȠȞ țĮ੿ ਕʌȡȠıįİો, ਕȞȫIJİȡȠȞ ʌȐȞIJȦȞ IJ૵Ȟ ʌĮș૵Ȟ țĮ੿ ਥȜĮIJIJȦȝȐIJȦȞ, ੑȡȖોȢ IJİ țĮ੿ ȜȒșȘȢ țĮ੿ ਕȖȞȠȓĮȢ țĮ੿ IJ૵Ȟ ȜȠȚʌ૵Ȟ. ǻȚ’ Į੝IJȠ૨ į੻ IJ੹ ʌȐȞIJĮ ıȣȞȑıIJȘțİȞ. ȅ੝ Ȥȡ૊ȗİȚ șȣıȓĮȢ țĮ੿ ıʌȠȞįȐȢ, Ƞ੝į੻ ʌȐȞIJȦȞ IJ૵Ȟ ijĮȚȞȠȝȑȞȦȞǜ ʌȐȞIJİȢ į੻ Į੝IJȠ૨ Ȥȡ૊ȗȠȣıȚ. By the providence of God, O king, came I into the world; and when I contemplated heaven and earth and sea, the sun and moon, and the other heavenly bodies, I was led to marvel at their fair order. And, when I beheld the world and all that therein is, how it is moved by law, I understood that he who moveth and sustaineth it is God. That which moveth is ever stronger than that which is moved, and that which sustaineth is stronger than that which is sustained. Him therefore I call God, who constructed all things and sustaineth them, without beginning, without end, immortal, without want, above all passions, and failings, such as anger, forgetfulness, ignorance, and the like. By him all things consist. He hath no need of sacrifice, or drinkoffering, or of any of the things that we see, but all men have need of him.34

This basic idea appears again and again in what follows: the subordination between the “mover” and the “moved”, the “Creator” and the “created”, on the basis of which Aristides defines the essence and fundamental nature of God. It is not by accident, however, that the words of the pseudo-Barlaam defining the nature of God and inspired “by the Holy Spirit” seem to be convincing in the scene in question; they even make that other notion plausible that they should cause the speaker, Nachor himself, to convert. Some of the elements and phrases of the speech may sound familiar to the reader: Barlaam, in his very first sermon to Josaphat, which succeeds in winning the prince over to the Christian faith once and for all, defines the nature of God in a similar way:

34 English translation of the passage by Woodward and Mattingly, according to the fuller Greek version of Barlaam and Josaphat.

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Barlaam’s first sermon (cod. Iviron 463, ff. 24r-24v)

Speech of “Pseudo-Barlaam” (Nachor) (Aristides: Apology) (cod. Iviron 463, ff. 77v-78r)

Ǽੁ IJઁȞ ਥȝઁȞ ȕȠȪȜİȚ įİıʌȩIJȘȞ ȝĮșİ૙Ȟ, ੒ țȪȡȚȩȢ ਥıIJȚȞ ੒ ȝȠȞȠȖİȞ੽Ȣ ȣੂઁȢ IJȠ૨ șİȠ૨, ੒ ȝĮțȐȡȚȠȢ țĮ੿ ȝȩȞȠȢ įȣȞȐıIJȘȢ, ੒ ȕĮıȚȜİઃȢ IJ૵Ȟ ȕĮıȚȜİȣȩȞIJȦȞ, ੒ ıઃȞ ʌĮIJȡ੿ țĮ੿ ਖȖȓ૳ ʌȞİȪȝĮIJȚ įȠȟĮȗȩȝİȞȠȢ. ȅ੝ț İੁȝ੿ Ȗ੹ȡ ਥȖઅ IJ૵Ȟ IJȠઃȢ ʌȠȜȜȠઃȢ țĮ੿ ਕIJȐțIJȠȣȢ ਕȞĮȖȠȡİȣȩȞIJȦȞ șİȠȪȢ țĮ੿ IJ੹ ਙȥȣȤĮ IJĮ૨IJĮ țĮ੿ țȦij੹ ıİȕȠȝȑȞȦȞ İ੅įȦȜĮ, ਕȜȜࡑ ਪȞĮ șİઁȞ ȖȚȞȫıțȦ țĮ੿ ੒ȝȠȜȠȖ૵ ਥȞ IJȡȚı੿Ȟ ਫ਼ʌȠıIJȐıİıȚ įȠȟĮȗȩȝİȞȠȞ, ʌĮIJȡȓ, ijȘȝȓ, țĮ੿ ȣੂ૶, țĮ੿ ਖȖȓ૳ ʌȞİȪȝĮIJȚ, ਥȞ ȝȚઽ į੻ ijȪıİȚ țĮ੿ Ƞ੝ıȓ઺, ਥȞ ȝȚઽ įȩȟૉ țĮ੿ ȕĮıȚȜİȓ઺ ȝ੽ ȝİȡȚȗȠȝȑȞૉ. ȅ੤IJȠȢ Ƞ੣Ȟ ੒ ਥȞ IJȡȚı੿Ȟ ਫ਼ʌȠıIJȐıİıȚȞ İੈȢ șİȩȢ, ਙȞĮȡȤȩȢ ਥıIJȚȞ țĮ੿ ਕIJİȜİȪIJȘIJȠȢ, ĮੁȫȞȚȩȢ IJİ țĮ੿ ਕǸįȚȠȢ, ਙțIJȚıIJȠȢ, ਙIJȡİʌIJȩȢ, ਕıȫȝĮIJȠȢ, ਕʌİȡȓȖȡĮʌIJȠȢ, ਕʌİȡȚȞȩȘIJȠȢ, ਕȖĮșઁȢ țĮ੿ įȓțĮȚȠȢ ȝȩȞȠȢ, ੒ IJ੹ ʌȐȞIJĮ ਥț ȝ੽ ੕ȞIJȦȞ ıȣıIJȘıȐȝİȞȠȢ, IJȐ IJİ ੒ȡĮIJ੹ țĮ੿ IJ੹ ਕȩȡĮIJĮǜ ʌȡ૵IJȠȞ ȝ੻Ȟ IJ੹Ȣ ȞȠİȡ੹Ȣ įȣȞȐȝİȚȢ țĮ੿ Ƞ੝ȡĮȞȓȠȣȢ, ਕȞĮȡȓșȝȘIJȐ IJȚȞĮ ʌȜȒșȘ ਙȨȜȐ IJİ țĮ੿ ਕıȫȝĮIJĮ, ȜİȚIJȠȣȡȖȚț੹ ʌȞİȪȝĮIJĮ IJોȢ IJȠ૨ șİȠ૨ ȝİȖĮȜİȚȩIJȘIJȠȢǜ ਩ʌİȚIJĮ IJઁȞ ੒ȡȫȝİȞȠȞ țȩıȝȠȞ IJȠ૨IJȠȞ, Ƞ੝ȡĮȞȩȞ IJİ țĮ੿ IJ੽Ȟ ȖોȞ țĮ੿ IJ੽Ȟ șȐȜĮııĮȞ, Ƞ੝ȡĮȞઁȞ ȝ੻Ȟ ਲȜȓ૳ țĮ੿ ıİȜȒȞૉ țĮ੿ IJȠ૙Ȣ ਙıIJȡȠȚȢ țĮIJİțȩıȝȘıİȞ, ȖોȞ į੻ ʌĮȞIJȠȓȠȚȢ

ਫȖȫ, ȕĮıȚȜİ૨, ʌȡȠȞȠȓ઺ șİȠ૨ ਷ȜșȠȞ İੁȢ IJઁȞ țȩıȝȠȞǜ țĮ੿ șİȦȡȒıĮȢ IJઁȞ Ƞ੝ȡĮȞઁȞ țĮ੿ ȖોȞ țĮ੿ IJ੽Ȟ șȐȜĮııĮȞ, ਸ਼ȜȚȩȞ țĮ੿ ıİȜȒȞȘȞ țĮ੿ IJ੹ ȜȠȚʌȐ ਥșĮȪȝĮıĮ IJ੽Ȟ įȚĮțȩıȝȘıȚȞ IJȠȪIJȦȞ. ੉įઅȞ į੻ IJઁȞ țȩıȝȠȞ țĮ੿ IJ੹ ਥȞ Į੝IJ૶ ʌȐȞIJĮ ੖IJȚ țĮIJ੹ ਕȞȐȖțȘȞ țȚȞİ૙IJĮȚ, ıȣȞોțĮ IJઁȞ țȚȞȠ૨ȞIJĮ țĮ੿ įȚĮțȡȓȞȦȞ IJઁ İੇȞĮȚǜ ʌ઼Ȟ Ȗ੹ȡ IJઁ țȚȞȠ૨Ȟ ੁıȤȣȡȩIJİȡȠȞ IJȠ૨ įȚĮțȡĮIJȠȣȝȑȞȠȣ ਥıIJȓȞ. ǹ੝IJઁȞ Ƞ੣Ȟ ȜȑȖȦ İੇȞĮȚ șİઁȞ, IJઁȞ ıȣıIJȘıȐȝİȞȠȞ IJ੹ ʌȐȞIJĮ țĮ੿ įȚĮțȡĮIJȠ૨ȞIJĮ, ਙȞĮȡȤȠȞ țĮ੿ ਕǸįȚȠȞ, ਕșȐȞĮIJȠȞ țĮ੿ ਕʌȡȠıįİો, ਕȞȫIJİȡȠȞ ʌȐȞIJȦȞ IJ૵Ȟ ʌĮș૵Ȟ țĮ੿ ਥȜĮIJIJȦȝȐIJȦȞ, ੑȡȖોȢ IJİ țĮ੿ ȜȒșȘȢ țĮ੿ ਕȖȞȠȓĮȢ țĮ੿ IJ૵Ȟ ȜȠȚʌ૵Ȟ. ǻȚ’ Į੝IJȠ૨ į੻ IJ੹ ʌȐȞIJĮ ıȣȞȑıIJȘțİȞ. ȅ੝ Ȥȡ૊ȗİȚ șȣıȓĮȢ țĮ੿ ıʌȠȞįȐȢ, Ƞ੝į੻ ʌȐȞIJȦȞ IJ૵Ȟ ijĮȚȞȠȝȑȞȦȞǜ ʌȐȞIJİȢ į੻ Į੝IJȠ૨ Ȥȡ૊ȗȠȣıȚ.…36

36

For the translation of this passage, see above.

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ȕȜĮıIJȒȝĮıȚ țĮ੿ įȚĮijȩȡȠȚȢ ȗ૴ȠȚȢ, IJȒȞ IJİ șȐȜĮııĮȞ ʌȐȜȚȞ IJ૶ ʌĮȝʌȜȘșİ૙ IJ૵Ȟ ȞȘțIJ૵Ȟ ȖȑȞİȚ. ȉĮ૨IJĮ ʌȐȞIJĮ Į੝IJઁȢ İੇʌİ țĮ੿ ਥȖİȞȞȒșȘıĮȞ, Į੝IJઁȢ ਥȞİIJİȓȜĮIJȠ țĮ੿ ਥțIJȓıșȘıĮȞ....35 The two speeches, though not completely identical of course, contain several similarities: in addition to the list of the visible elements of the created world (earth, sky, water, celestial bodies), there is a remarkable definition of God’s nature as “apophatic” (as common as this kind of definition would be in apologetic literature),37 which can only circumscribe the true nature of God, incomprehensible and perfect to mortals on earth, by means of privative adjectives (ਙȞĮȡȤȠȞ țĮ੿ ਕǸįȚȠȞ, ਕșȐȞĮIJȠȞ țĮ੿ ਕʌȡȠıįİો, etc.). It is not the purpose of this study to examine the sources of these passages (or to identify possible common sources that have not yet been discovered), but merely to show that the similarity between the two passages is not accidental; on the contrary, it is evidence of authorial intention and of a narratologically subtle, conscious weaving of a story, which at the same time shows the skills of the author of the hagiography. The unity of the narrative, although it is interrupted by a number of interspersed stories and parables and is thus sometimes difficult to follow, is established most 35

“If thou wilt learn who is my Master, it is Jesus Christ the Lord, the only-begotten Son of God, the blessed and only potentate, the King of kings, and Lord of lords; who only hath immortality, dwelling in the light which no man can approach unto; who with the Father and the Holy Ghost is glorified. I am not one of those who proclaim from the house-top their wild rout of gods, and worship lifeless and dumb idols, but one God do I acknowledge and confess, in three persons glorified, the Father, the Son, and the Holy Ghost, but in one nature and substance, in one glory and kingdom undivided. He then is in three persons one God, without beginning, and without end, eternal and everlasting, increate, immutable and incorporeal, invisible, infinite, incomprehensible, alone good and righteous, who created all things out of nothing, whether visible or invisible. First, he made the heavenly and invisible powers, countless multitudes, immaterial and bodiless, ministering spirits of the majesty of God. Afterward he created this visible world, heaven and earth and sea, which also he made glorious with light and richly adorned it; the heavens with the sun, moon and stars, and the earth with all manner of herbs and divers living beasts, and the sea in turn with all kinds of fishes. He spake the word and these all were made; he commanded and they were created”. (English translation of the passage by Woodward and Mattingly, according to the fuller Greek version of Barlaam and Josaphat.) 37 See Pouderon 2003, 78 n. 3.

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satisfyingly by the harmonious connection between the two speeches, the parallel elements creating a clear link between the two loci. As we read in the novel, as soon as Nachor opened his mouth to speak, his discourse surprised even him: ੥ʌȠȜĮȕઅȞ į੻ ੒ ȃĮȤઅȡ IJઁȞ ȝ੻Ȟ ૧ȒIJȠȡĮ ਥțİ૙ȞȠȞ Ƞ੝į’ ੖ȜȦȢ ਕʌȠțȡȓıİȦȢ ਱ȟȓȦıİǜ țĮIJĮıİȓıĮȢ IJઁ ʌȜોșȠȢ IJૌ ȤİȚȡ੿ ıȚȖ઼Ȟ, ਕȞȠȓȟĮȢ IJઁ ıIJȩȝĮ Į੝IJȠ૨ … ਘ Ƞ੝ ʌȡȠıȑșİIJȠ İੁʌİ૙Ȟ, ਥțİ૙ȞĮ ȜİȜȐȜȘțİ. Then replied Nachor, disdaining even to answer the speaker. He beckoned with his hand to the multitude to keep silence, and opening his mouth … spake that which he had not purposed to say, and thus addressed the king. (trans. Woodward and Mattingly)

And indeed, the pseudo-Barlaam in the story becomes so transformed that as soon as he begins to speak, he involuntarily recalls the words of Josaphat’s real teacher, Barlaam, notably, the very part of the Christian teacher’s first admonition which sealed Josaphat’s fate for ever. Nachor’s testimony, inspired by the Holy Spirit, thus becomes credible not only for the audience of the theological debate in the story, but also for the reader, who can interpret the borrowed text of the Apology not as a randomly inserted “foreign body”, but as an integral part of the narrative, an analeptic reference to an earlier scene in the story. The rest of the Apology, however, naturally complements Barlaam’s sermon: while the real Barlaam’s sermon discusses the history of humanity from a Christian perspective, from Creation to the expulsion from the Garden of Eden, the story of the Flood and Noah’s ark, the histories of Abraham, Moses and Aaron, and the narrative of the Exodus to the story of Christ, the pseudo-Barlaam’s discourse borrowed from Aristides looks at the history of mankind from a religious perspective, classifying the peoples according to their relationship to God and their religious cults. In the light of the above, it is worth glancing at the Old French translation. The translation by the unknown French author as a “contemporary reader” may also be revealing:

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Barlaam’s first sermon (cod. Iviron 463, ff. 24r-24v)

Speech of “Pseudo-Barlaam” (Nachor) (Aristides: Apology) (cod. Iviron 463, ff. 77v-78r)

Vos volés apr[en]dre del mien si[gnor] c’est li poestés […] le seins filz del si[gnor bo]neurés. Li sols f[ilz de] deus en tot e rien. Li rois de rois q[ui] est aorés avoc l[i] pere e le seint e[s]prit. Je ne sui pas de caus qui serve[nt] as pluiseurs faus deus qui sunt mort e as ydres qui sunt surdes. Mais un seul deu [je conois] e regehis en trois persones qui regne glorieus, le pere e le fil e le seint esprit [en une] nature e sustance [en un]e gloire [e regne] sans distin[ct]iun. Cis est [en troi]s persones un s[eul deu sans c]omencement est [e sans] definement [tos] jors fu e tos [jors se]ra. Il est ni[ent c]riés nient for[més] nient mesu[ré]s nient enclo[s] nient veables [nien]t comprehenda[ble b]enignes e sols [droi]turiers. Qui [tot]es [c]hoses fist e de nient estora e [ce qu]e um voit e ce [que] um ne voit. [Pr]emiers les nient [ve]ables poestés e les [cel]estes espris qui [su]nt sans numbre [e q]ui sunt devant [… d]evant e sunt inmor[t]el e sans car e chantent devant deu les [y]mnes esperitues e loent les grandeces de deu. E puis cestui veable siecle, le ciel e la terre e la mer, le ciel aorna del [sole]il e de la lune e des estoiles, en la terre fist toutes les naisances por sustenance de umes….

Je sire rois par porvëance de deu sui venus es munde e ai esguardé le ciel e la terre e la mer le soleil e l[a lune] e les autres criatures e me sui mervellés de lor creacium. E cant je esguardai [le munde] e canqu’il i a[voit par] comandem[ens meu] esté si reco[nus le] criatur e i[l l’est] par droit [car de] tote criat[ure plus po]isans li cria[tur. Celui] di je deu q[ui tot es]tora e tot m[eintint.] Qui est san[s comen]cement e sa[ns define]ment e in[mortel] e nient ma[laisié] si haus que [ne pasium] ne fauseté n[e coro]ce ne durté [ne nun]sachance n[e autre] chose qui de[stro]blent ni poe[t destre]indre. De pa[r lui] sunt tuit g[ens] né. Il n’a be[soins] de sacrefice n[e d’en]sens ne de rie[n que] nos veiuns m[ais nos] tuit avons b[esoins] de lui.

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When comparing the Old French versions of the two passages, a slight “mismatch” can be observed, suggesting that the translator may also have perceived an association between the two places. In the Old French translation, the enumeration defining the nature of God begins in both cases with the same words (“sans comencement [est] e sans definement”), although the Greek original uses different expressions in the two places. In the first case, the translation is correct, since the French terms are the exact equivalents of the adjectives in the Greek text: [sans c]omencement est [e sans] definement (ਙȞĮȡȤȩȢ ਥıIJȚȞ țĮ੿ ਕIJİȜİȪIJȘIJȠȢ)

In the second case, however, the translation seems inaccurate, or at least inconsistent, since ਕǸįȚȠȞ is also translated as “definement”: est san[s comen]cement e sa[ns define]ment (ਙȞĮȡȤȠȞ țĮ੿ ਕǸįȚȠȞ)

The adjectives “eternel” or “perpetuel” would be more accurate. Nevertheless, in the continuation of the first passage (Barlaam’s sermon) the word ਕǸįȚȠȞ is circumscribed, rather than translated, in the French text: [tos] jors fu e tos [jors se]ra ĮੁȫȞȚȩȢ IJİ țĮ੿ ܻǸįȚȠȢ

The slight “bump” in the translation, however, shows that the translator had—whether consciously or unconsciously—linked the two discourses in his mind, and had begun the defining moment of the two loci, namely, the enumeration of the characteristics of God’s nature, with the same phrase, even though it was different in the Greek text. The hypothesis outlined above does not therefore appear to be unfounded, and the parallel between the two speeches is certainly not a coincidence. It hints at a deliberate choice on the part of the author, who thus sought to give credibility to the oration of Nachor, the pseudo-Barlaam, inspired by the Holy Spirit, from whose influence not only the speaker himself and his audience (above all the silenced rhetoricians) but also the contemporary reader would be unable to escape. On the other hand, the text borrowed from Aristides’ Apology was integrally incorporated into the narrative through its associations with Barlaam’s sermon.

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INDICES

GENERAL INDEX

absentee deposition, see ekmartyria Achaeans 236, 239-240, 241, 242, 244-245 Achilles 236, 237, 240 n. 18, 241, 243, 244, 245 n. 24, 246 adeia 47, 228, 229 n. 21, 230 Ado of Vienne 280 adoption 173, 174-178, 181, 211, 218, 226 Aeneas 240 Aeschines 4-5, 63, 64-78, 79-87, 137, 139-141, 144, 153 n. 41, 160 n. 2, 161 n. 8, 165 n. 18, 166 n. 22, 168 n. 28, 189, 202-203, 208-209 Aeschylus 107, 111, 113-118, 265-266 Aesop 128-132, 268 Agamemnon 107, 218, 240, 244, 245 n. 24, 247 Agathon 111-112 agon 15, 114-117, 222 n. 10, 244-245 timetos 28, 34 agora 55, 56, 61-62, 63, 147-148, 156, 164-165, 260 aikeia 5, 36, 38, 55, 58-63, 104, 108-110, 146-157, 194 n. 26 Ajax 237 Alcaeus 112 n. 20, 265, 266 aletheia, see truth Amasis 264, 268 ambassador’s speech 254 Anacreon 112 n. 20, 265, 266 anadikia, see retrial anakrisis 14, 24, 167 anchisteia 174 anger 60, 213n.28 animals 120-132 Antilochus 243 Antiphon 5, 18, 52 n. 73, 92-94, 97 n. 41, 108, 141 n. 21, 168 n. 28, 201 n. 6 apagoge 50, 151-152

334

Aphobus Apollo Apollodorus Appian arbitration Archilochus archon Areopagus arete, see virtue Arion Aristides Aristogeiton Aristophanes Aristotle

General Index

17, 210, 212 115, 167, 221, 222, 223, 229 17, 20, 25, 28, 34-37, 73, 75 n. 35, 76 n. 40, 142, 159, 161 n. 7, 169 n. 34, 193, 205, 244 n. 23 275 16-17, 23, 24, 29, 34-35, 36-38, 56-59, 60-61, 70, 105, 150-152, 155-156, 252-253 266-267 11-14, 18, 20 nn. 21 and 22, 52, 67, 167, 168, 249 n. 2 31, 50, 71 n. 24, 139, 168 n. 28, 207 266 6-7, 277-292 161 n. 8, 193 n. 21, 205, 235-236, 246 5, 52 nn. 71 and 73, 91 n. 14, 104-118, 122-123, 128-129, 131-132, 165, 208, 261, 274-275 13 n. 17, 59, 60, 123 n. 19, 127 n. 34, 135, 144, 146, 157, 160 n. 3, 174, 182, 198, 202, 202, 207, 212, 215, 217-218, 235 n. 3, 261, 275, 276 265-266 155 n. 51

Artemisia aselgeia assault, see aikeia, hybris Assembly 36, 40-42, 44, 46-48, 50-54, 71, 72, 137-142, 144, 153 n. 41, 154, 160, 161-162, 168 n. 28, 229-230, 231, 249 nn. 1 and 3, 250 astos/aste, see citizenship Astyphilus 20, 175-177, 181 Athena 222, 223, 237, 238 Athens 6, 12-13, 25, 28, 41-45, 52-54, 63, 65, 66 n. 12, 67 n. 15, 69, 79-80, 106-107, 108-109, 110 n. 16, 115 n. 31, 116-118, 121, 125 n. 29,134 n. 8, 137, 139-140, 149 n. 24, 161 n. 6, 168 n. 28, 169 n. 30, 173, 174, 176, 177, 182, 203, 207, 219, 220, 223-226, 231, 235, 247, 252 n. 18, 263, 274, 279-280 atimia, see disfranchisement audience assimilation 137-139, 142, 143 Autolekythoi 56 n. 3 Bacchylides 241, 265, 276 Barlaam and Josaphat 6-7, 277-292

Evidence and Proof in Ancient Greece

basanos, see evidence benefactor/benefaction Biton blows challenge, see proklesis character, see ethos Charaxus Chilon of Sparta choregos Cicero Catilinarians Cinaethon citizenship Cleisthenes Cleobis Cnidus codex Athon. Iviron 463 Comedy, Middle Comedy, Old confiscation Corinthian War costume courts

covering letter Croesus Ctesias Cyclopes Cynegirus death sentence deception

335

242, 248-250, 252, 253, 255-256, 258 263-264 36, 38, 56, 61, 62-63, 143, 148-149, 153 n. 41, 154 267 263 93-94, 138 76, 261 76 265 21 n. 28, 29, 134, 159-171, 219, 220, 232, 250, 252, 257 n. 43 271 263 18 n. 12, 193-194 n. 25, 252 7, 82, 277-278, 281-283 463 165 5, 104-118, 163-166, 218 40, 42-45, 53, 54, 208 21 104, 111-114, 117, 241 n. 19, 244 3-6, 9-15, 17, 19, 23-27, 28-29, 31-32, 34, 35, 37-38, 40, 42, 44-54, 56, 57, 66-67, 71, 74, 76, 80, 88-91, 93, 96-98, 102-103, 106, 107-109, 110, 133-137, 140-144, 145-146, 149 n. 22, 151152, 154, 159, 164, 167-168, 169 n. 30, 172-173, 174, 200-202, 206, 208-209, 215, 218, 223, 228 n. 20, 231, 235, 239, 253-254, 260, 265, 278 249, 256 130, 263-265, 276 55-56, 61-62, 154 n. 47 246, 273-274 266 29 n. 3, 33, 39, 40, 41-45, 47, 53, 54, 59, 115, 124, 151-152, 187, 188 37, 77, 161 n. 8, 183, 199 n. 3, 204, 211, 213, 214, 225

336

deformity Delphi deme, registration in demesmen, as witnesses Demosthenes (general) Demosthenes (orator)

General Index

130 192 n. 20, 221, 222, 261, 266, 267 62, 159-171, 232-233 160, 162-163, 175-176 274 4, 5, 16-17, 20 n. 22, 24-27, 28-29, 35, 45 n. 38, 48, 50, 55-63, 74, 76, 79-80, 82, 86-87, 125 n. 29, 138-139, 140, 144, 153-157, 159-160, 161 n. 8, 165 n. 18, 166 n. 22, 168 n. 28, 189, 195, 201 n. 6, 203-206, 208, 210, 212, 234, 275 denunciation 4, 40-54, 55-56, 175-177, 228, 229-230, 231, 232 deposition, see evidence, written diabole 59, 114 diadikasia 11, 14, 24, 47, 201, 213-214 diaita, see arbitration diamartyria 4, 8-15, 24 n. 42, 29, 30 diapsephisis 159-163, 166, 167, 168 n. 28, 232 dicast, dikastes 5, 45, 68-69, 71-72, 73, 95, 133-144, 149, 150 n. 27, 152, 154, 157 n. 62, 166, 167, 199, 201 n. 7, 202-203, 205, 207 n. 18, 208, 209, 210-216 dikasterion, see courts dike aikeias 30, 36, 61, 148, 153, 210 blabes 30, 211, 212 emporike 25 n. 47 kakegorias 141, 155, 210 kakotechnion 29, 31, 33-34, 38-39 pseudomartyrion 4, 8-14, 17, 24, 27, 28-39, 134 n. 6, 152 n. 39, 211 Diomedes 6, 236-240, 244-246, 247 Dionysius of Halicarnassus 21 n. 28, 60, 61, 63, 64, 66, 275 Dionysus 56, 104-106, 109, 110-118, 153, 179 disfranchisement 24 n. 44, 29, 30, 33, 34, 39, 65, 73, 77, 155, 156 doctor 67-68, 94, 101-102, 147, 148, 149-150, 227, 250-253, 255-256 documents in speeches 5, 18, 80-87, 143 n. 22, 200-204, 207, 209, 214, 216 dogs 120-132 dokimasia 159-160, 162-163, 201, 213-216, 232 rhetoron 30, 65, 74-75, 202 thesmotheton 167-168, 233

Evidence and Proof in Ancient Greece

337

Dolon 6, 236-247 Duris of Samos 275 echinos 14 n. 24, 35 education 62, 65, 126, 128, 131 n. 57, 251 n. 11 Egypt 99-100, 120, 122 n. 15, 265-270, 282, 285 Eideshorte 120-122, 131 eikos, see probability (eikos) eisangelia 36, 44, 47-48, 49-50, 201-202, 209, 223 n. 12, 228 ekmartyria 19 n. 18, 251-252, 253 n. 23 Eleusinian Mysteries 41, 53-54 Eleven, the 110 n. 16, 151-152 emendatio 22, 85, 190 n. 15, 269 n. 30 enargeia 180-181 enemies/enmity 41 n. 13, 42, 49 n. 63, 79-80, 97, 126, 174, 175177, 178, 217 Ennius 275 envoys 6, 137, 248-250, 253-259 Ephesus 272 Ephorus 261, 274-275 epidikasia 8-13 epikleros 163 epilogos 6, 22, 198-216 epiorkos 237-238, 243 episkepsis 8, 9, 14, 24 n. 42, 29, 31-33 Eratosthenes 137-138 ethos 5, 146-158, 203, 256-257, 258 Eualcides 272 Eumedes 240-241 Eupolis 165, 274-275 Euripides 106-107, 111, 113-118, 122 n. 17, 194 n. 26, 223, 224, 237, 243, 262, 274 Eusebius of Caesarea 277, 279 Euthymius the Athonite 278 evidence, legal documentary 173, 205, 214, 216, 235 n. 3; see also documents in speeches hearsay 29, 35-36, 93, 97, 98, 101, 134, 143, 162 oath 5, 6, 36-37, 45, 48, 57-59, 61, 62, 119-121, 135, 146 n. 8, 167, 179-180, 213 n. 29, 235-239, 243244, 247, 252-253,

General Index

338

oral relevance torture (basanos)

4, 16-27, 232 n. 31, 249-250, 254-259 91, 93, 94, 97, 150-151, 157, 163, 168, 172-173, 174, 181-182, 188, 209, 211, 216

36-38, 50-52, 58, 102 n. 73, 150, 205, 210-211 235-239, 244-247 weight 51, 181-183, 212 written 4, 16-27, 29, 30, 31, 32, 57, 60, 92-93, 97, 142143, 152, 153, 160, 166-167, 168, 176, 198-199 n. 2, 199, 200-201, 207, 210-211, 212, 214, 216, 232-234, 248-250, 252-253, 256, 259 evidence, scientific 173 exomosia 29-30, 93 n. 23, 152, 162 n. 10 expedience (sympheron) 50, 98, 202-209, 213, 214, 215 expert witness, see witness Fabius Pictor 260, 275 Fable 124-125, 131 false testimony, see testimony fear, rhetoric of 59, 66-67, 74-77 Foucault, Michel 65 funeral and commemorative rituals 172-175, 176-177, 178, 179, 181, 243 gambling 69, 70 gender/sexuality 65-66 Glaucon 70, 127, 229 n. 22 glory (kleos) 241-242, 273 grammateus 23 graphe 49 n. 61, 201-202, 204, 205, 207, 212 n. 27 nomon me epitedeion theinai 204-205 paranomon 43, 45, 46-47, 76 n. 40, 204, 205 Gyges 266 hagiography 277-292 hearsay, see evidence, hearsay Hecataeus 261, 262, 265 Hector 236-244, 246-247 Hegesandrus 70, 85 Helen of Troy 265, 268-269, 276 Helenus 244 n. 23 Hera 121, 238 heritage 71-72, 285 n. 30 Hermes 41, 240 n. 18, 241

Evidence and Proof in Ancient Greece

Hermocopidae Herms Herodian Herodotus Hesiod hetairai hetairesis hetairoi Hippias Hippocrates Hippolytus Homer

339

45, 49 4, 40-54, 141-142, 228, 231 275 6, 26 n. 50, 91-92, 98-101, 261-276 140, 265, 268, 269, 271, 275 62, 70, 185, 189-190, 195, 267 65, 74-75 58 236 100-101 243 26 n. 50, 93, 98 n. 43, 119, 123 n. 19, 125 n. 28, 129 n. 43, 236, 237-247, 261-262, 268-271, 273276 honorific decrees 6, 248-259 hortatory clause 258 hybris, hybristes 32 n. 19, 59, 60, 61, 70, 147-150, 154-158, 203 hyparchetype 83 Hyperboreans 266, 271 Hyperides 49, 50, 184-195, 202, 205-206, 209 biographical invention 193 defence of Phryne 184-195 dramatic elements 195 love between Hyperides and Phryne 186, 187, 188-193 new critical edition of the fragments 6, 184-195 political motive 185, 193 tearing off of upper garment 184, 185, 186, 187, 191, 193195 testimony of Syrianus and Alciphron 191-192 type of lawsuit 6, 186-188 hypomnema 82-83, 87 hypomosia 36-37 hypothesis 82-83, 87, 159 n. 1, 232 n. 30 identity 5-6, 32, 33, 89, 99 n. 55, 101, 112-114, 119, 124, 126, 134, 145-146, 173-174, 179-180, 183, 218234 immunity, see trial inheritance 5-6, 8-15, 21, 24 n. 43, 28, 30, 33-36, 39, 71, 170 n. 36, 172-183 initiation rituals 41, 45, 65, 110, 165 n. 18 inscriptions 45, 62, 166, 203, 250, 252-253, 272

340

General Index

invective 123 n. 19, 161, 162-166 Ithyphalloi 275 judges, see dicast/dikastes jury 19, 57, 62-63, 69-73, 77, 98, 121 n. 14, 124 n. 27, 141, 159, 192, 206; see also dicast/dikastes justice, lawfulness (to dikaion) 6, 15, 26 n. 50, 37, 44, 54, 72, 119 n. 1, 121 n. 10, 199-216, 256-257 kakegoria, see dike kakegorias katacheirotonia 154 n. 44 kinship 33, 39, 169 n. 30, 175, 249 n. 3, 256-257 kleteusis 29-30 Laestrygonians 273-274 language of Early Roman Period 84-85, 87 legal analogies 260 legitimacy/illegitimacy 8-10, 12-15, 62, 168, 169-170, 173, 174, 179181, 220 Libya 271 liturgies 143, 155, 200; see also choregos, trierarch logographer/logographos 5, 24 n. 44, 59, 60-61, 135-136, 141, 206, 233234 n. 35 lopodysia 61 Lycurgus 50, 65-66, 263 Lysander 137-138 Marcus Aurelius 275 martyria, see witness statement martys, see witness material reward (geras) 240-242 Medea 268 Medon 244 n. 22, 246 n. 25 mendacity 199, 205, 212, 214 Menelaus 240 n. 17, 243, 245 n. 24, 269, 270 menysis, see denunciation metatheatre 5, 104, 109-110, 112-117 metic 42, 47-48, 49, 51, 69, 70, 164, 169, 231 miasma 61 Miletus 256 n. 36, 257 n. 43, 265 Misgolas 68-69, 85 misinformation 66-67, 72-73, 77 Munychia 137 Mytilene 20 n. 23, 265, 266, 267 Naevius 275

Evidence and Proof in Ancient Greece

341

Nestor 240, 241, 243, 245 Nicias 200, 274 Not- and Hilferuf 106, 107, 109, 117 oath, see evidence, proklesis eis horkon oath, promissory 236, 237-238, 243; see also proklesis eis basanon Odysseus 6, 236-240, 243-247, 270-271 Olynthus 76 Onetor 17 n. 8, 20 n. 22, 210-211 Onomacritus 266 Orestes 218, 223 n. 12, 241 orge, see anger outlawry 44, 52 papyrus, papyrus roll 81-83, 87, 190 n. 16, 254 n. 27, 277, 280-281 paradeigma 6, 248, 251 n. 11 paragraphe 8, 17, 35, 36-37, 201, 213-215 Paris 240, 244 n. 23, 268-270 Pasion 34-36 Pausanias 261, 276 Peisistratus 263 penalties, see death sentence, disfranchisement Periander 36, 266 Pericles 66 n. 10, 189, 274, 276 persuasion 3, 34-35, 42, 43, 75-76, 93, 95, 96, 98, 101,116 117, 123, 143, 144, 150 n. 27, 155-156, 160 n. 2, 169, 170-171, 173-174, 177, 183, 195, 248, 250 n. 5, 258, 261, 279 Phaedra 243-244 Phanus 17 Philip II of Macedon 76, 79-80, 168 n. 28 Philocrates, peace of 76, 79-80 Philocyprus 261, 263 philosophy 68 n. 19, 90, 120, 122, 126, 127-128, 129, 131132, 190-191 n. 16, 191, 251 n. 11, 279, 283 Phormion 17, 34-35, 214 phratry, introduction into 168, 169, 173, 179-180 Phrynichus 265, 275 Phylarchus 276 piety 41, 49-50, 53, 73-74, 117, 120-121, 122, 124, 140, 185-189, 204, 228, 235, 282-283 Pindar 98 n. 43, 238 n. 14, 264, 275

342

Piraeus Pittalacus Plato “play within the play” Plutarch polis Polybius Polycrates Priam probability (eikos) probole procedure Athenian

General Index

67-68, 190 69-70 29 n. 3, 33, 68 n. 19, 92, 120-132, 208 n. 21, 262, 265 n. 20, 275 112 49-50, 185, 186, 189, 190, 229 n. 22, 261, 262263, 274, 276 53, 74, 104, 113-118, 121, 202-203, 208, 232, 248-252, 256-258 254 n. 27, 260, 275, 276 121, 264, 265, 266 240 n. 18, 244 n. 23, 271 36 n. 28, 38, 61, 96, 173, 179, 183, 210, 231 153, 154 n. 44 4, 104, 119, 213, 245, 252 8-14, 23, 28-31, 36 n. 29, 38, 40, 45-50, 52-53, 56, 58, 70, 108, 109-110, 117, 153 n. 40, 159162, 173, 188, 201 n. 8, 204-205, 221, 222-223, 228-229, 231-232 4, 12-13

Gortynian proklesis eis basanon 50-51, 150; see also torture eis horkon 58-59, 212; see also oath Prometheus 235-236, 239 proofs, non-technical (atechnoi pisteis) 6, 55, 59, 80, 160, 171, 199, 201, 202, 204, 206, 214, 215, 216, 258 proscription 45, 53-54 Proteus 269 Psammetichus 268 ratio decidendi 135-136 recapitulation 167, 198-199, 200, 201 n. 7, 204, 212, 215 recognition (ਕȞĮȖȞȫȡȚıȚȢ) 6, 166, 217-218, 222, 225-228, 270271 recognition (identification, ȗȒIJȘıȚȢ) 30, 34, 39, 138, 147 n. 14, 163, 164, 191, 218-234 religion/religious observances 5-6, 40, 44, 53-54, 75, 116, 117, 119 n. 2, 121-122, 131, 172-183, 203, 235, 251 n. 11, 278, 282, 285, 290 retrial 4, 9 n. 2, 29, 33-34, 38-39, 172-183 reversal (ʌİȡȚʌİIJİȓĮ) 217, 225

Evidence and Proof in Ancient Greece

343

Rhesus 236-244, 247 Rhodopis 267-268 ribbon seller 160, 164-165, 170 role playing 111-114, 117 Sappho 267-268 Sarpedon 240 Scipio Aemilianus 275 scrutiny, see dokimasia sexuality, see gender/sexuality Sicilian expedition 20 n. 21, 40-41, 54, 274 n. 49 Sicyon 220, 271 Sidon 270 Simonides 265, 272, 275-276 slander, see diabole slaves 33, 34, 36-39, 41-42, 45 n. 39, 47-48, 50-52, 58, 60, 62, 69-70, 74, 95, 102 n. 73, 104, 105, 107, 110-118, 122, 150, 159, 164-165, 170, 180, 205, 219, 223, 224-228, 231, 235-236, 239, 242-247, 268 Social War 21, 79 Socrates 5, 92, 107, 120-132, 182, 185-186, 208 n. 21 Solon 9-12, 50, 65, 70, 140, 164, 202, 261-264, 275 Sparta 18, 48, 59-60, 65-66, 137, 263, 265-266, 269, 271, 272 spatium historicum 267-268 St Jerome 277, 279 St John of Damascus 278 Stephanus 16-17, 25-26, 28, 34-36, 86, 193, 205 stichometry 81 Strabo 261, 265, 267 n. 24, 274-275 n. 51, 276 supporting speaker (synegoros) 135, 177-178, 202, 204, 208, 209, 215 supporting speech (synegoria) 22, 200, 201, 203, 204, 205-206, 208, 213 n. 29, 216 sycophant 30, 161-162, 193 n. 21 synomosiai, see hetairoi Tegea 271 testimony 4, 5-6, 8-15, 16-27, 28-29, 50-51, 52, 57-63, 7172, 80-82, 88-103, 108-109, 134-136, 139, 140, 145-158, 160-171, 173, 175-179, 184-185, 189195, 203, 213, 214, 220-234, 247-255, 258-259, 277, 290; see also witness statement

General Index

344

epistemology false

83-103 4, 6-7, 8-9, 13, 17-18, 24-25, 28-39, 43-44, 47, 48, 51, 58, 86, 93, 121, 134-135, 139-140 textual tradition 81-87 early 82, 84, 85 philological 82, 86-87 rhetorical 80-87 theatricality 5, 71-72, 104, 109-118, 167-168, 170, 195, 249 n. 3, 258-259 Theban War 20 n. 23, 21 Theophemus 36-38 Theramenes 113, 137-138 Thermopylae 264, 272 Thersandrus 64-65 Thersites 240-241 thesmothetae 31, 47, 159 n. 1, 167, 233 Thirty, the 67, 137-138, 228-229 Thucydides 26 n. 50, 40, 41 nn. 4 and 13, 51-52, 54 n. 80, 58, 261, 273-276 Timaeus 275 Timarchus 4, 64-78, 79, 80, 81, 86-87, 139-141, 160 n. 2, 202 Timotheus 20 n. 23 topos 71 n. 27, 74 n. 31, 77, 96-97, 133 n. 1, 136, 141144, 145, 200, 209 disgust 67 n. 14 torture, see evidence, proklesis eis basanon trial, trials 5-6, 11, 15, 16-17, 18 n. 12, 19 n. 18, 24-25, 2839, 40-54, 55 n. 2, 57, 58, 63, 69, 71, 73-74, 75, 76, 77, 80, 95, 100, 123-124, 133, 135, 140, 141, 142, 149 n. 24, 150, 151 n. 30, 154 n. 44, 160, 170, 185-194, 202-202, 205, 206-207, 211, 212, 213, 228-229, 231, 232 immunity 41-43, 46, 47, 48, 228, 229 n. 22, 230 n. 27, 231232 in absentia 42-45, 52-53, 54, 283 trierarch 25, 36-37, 38, 48, 142, 155, 156 Troy, Trojans 236-242, 244 n. 23, 245, 247, 268, 270, 271 truth (aletheia), truthfulness, truth-telling 3, 6, 25, 44-45, 60, 68, 69, 88, 92, 94-95, 99-100, 119, 124, 128, 129, 133, 134-135, 138-

Evidence and Proof in Ancient Greece

345

141, 145 n. 3, 155, 181, 199201, 202-212, 214-216, 230 n. 27, 236, 239, 241, 247, 252253, 260, 264, 265-266, 268, 271 n. 35, 273, 274, 282, 286 Tyrtaeus 265, 274-275 n. 51 variae lectiones 190 n. 15, 274 n. 50 virtue 6, 128, 248-250, 251 n. 11, 253, 254, 255, 256259 wet nurse 160, 164, 165-166, 232-233 wills 34-35, 173, 175-178, 181 witness (martys) 3-7, 8-14, 16-26, 28-39, 43, 50-53, 57-62, 71-72, 80-86, 88-103, 104-110, 117, 119-121, 133-144, 145-158, 160-171, 173, 175-179, 185, 199-200, 203, 205, 207, 208, 210-216, 217-223, 224 n. 16, 226-233, 235, 248, 251-259, 260, 271 expert 94 n. 33, 149-150 n. 24 false 8, 9, 17-18, 24-25, 29, 31-32, 33-34, 36, 37-39, 86, 139, 200, 211, 212, 219 n. 6 formulae 17-23, 136-136, 156 identity 5, 33, 89, 134, 145-146, 173-174, 220-223. 227228 performed 141-144, 166-168, 170-171 rules 23, 28-30, 97, 102, 135, 136, 252 silent 155-156 women 36-38, 42-43, 47-48, 50-51, 228, 235, 243-244 witness statement (martyria) 5, 16-27, 79-87, 91, 119, 134-136, 137139, 142-144,145-158, 213 n. 29, 235, 247, 252-254, 258-259; see also testimony Xanthias 104-118 Xenophanes 243 Xerxes 264, 271

INDEX OF GREEK TERMS

ਕȞ੺ȖȞȦșȚ ਕʌȠȜȠȖȓȗȠȝĮȚ ਕʌȠȝĮȡIJȣȡȑȦ ਙIJİȤȞȠȚ ʌȓıIJİȚȢ ਕijĮȓȡİıȚȢ İੁȢ ਥȜİȣșİȡȓĮȞ ȕȠȒ įȚĮȜȑȖȠȝĮȚ įȚĮȝĮȡIJȣȡȑȦ/Ƞ૨ȝĮȚ İੁıĮȖȖİȜȓĮ ਥțȝĮȡIJȣȡȓĮ ਥȝijĮȞȓȗȦ ȗȘIJȒIJȘȢ țİȜİ઄Ȧ ȝĮȡIJȣȡȓĮ ȝȒȞȣıȚȢ, ȝȘȞȪıİȚȢ ʌĮȡ੼ȟȠȝĮȚ ʌȡȠıIJȐIJĮȚ

18-19 256-257 254-256 253-254 70 106-107 256 254-255 44 n. 33, 187-188, 192 19 n. 18, 251-254 257-258 229-230 26 n. 50 81, 94 n. 33, 200-201, 253 228-232 136-137 253

INDEX OF PASSAGES CITED

Achilles Tatius 8.9.2-4.

65 n. 5

Aeschines 1.1 1.1-68 1.6 1.12 1.13-14 1.14 1.16 1.21 1.23-26 1.25 1.35 1.40 1.41 1.49 1.50 1.54 1.66 1.68 1.69 1.76 1.77 1.78 1.79 1.80 1.81-84 1.89 1.96-106 1.101 1.105 1.106-116 1.109

64 n. 2 81 202 n. 12 81 67 n. 16 67 n. 17 81 81 72 n. 30 140 81 68 n. 18, 85 68 n. 20 69 81, 83, 85 69 81, 84, 85 81, 84, 85 83 71 n. 25 160 n. 2 136 71 71 n. 26 139 139 71 n. 28 81 81 72 n. 29 69

348

1.111-114 1.114 1.117 1.125 1.128 1.129-130 1.130 1.139 1.173-175 1.175 1.178 1.187 1.189 1.191 1.192-193 1.195-196 2.19 2.34-35 2.44 2.55-56 2.67 2.78 2.170 2.179-182 2.180 2.184 3.1 3.31 3.52 3.172 3.212 3.255-260

Aeschylus Agamemnon 1315-1320 1541-1550 Choephori 22-53 983-989

Index of Passages Cited

70 n. 23 160 n. 2 202 n. 12 63 258 n. 44 140 140 70 74 n. 32 63 202 n. 12 75 n. 35 140 75 n. 36 75 n. 37 202 253 n. 22 250 n. 5 80, 137 137 23 n. 36 166 n. 22 135 n. 11 208 166 n. 22 135 n. 11 74 n. 32 144 153 n. 41 166 n. 22 153 n. 41 202-203

107 177 n. 12 177 n. 12 107

Evidence and Proof in Ancient Greece

349

Eumenides 457 483-484 680 710

168 n. 28 119 n. 3 119 n. 3 119 n. 3

Persians 728

265

Aesop P 97 P 120 P 132 P 134 P 135 P 136 P 153 P 206 P 253 P 254 P 264 P 342 P 415

129 n. 43 129 n. 43 129 n. 43 129 n. 43 129 n. 43 129 n. 43 125 n. 29, 129 n. 43 129 n. 43 129 n. 43 129 n. 43 129 n. 43 129 n. 43 129 n. 43

Alciphron 4.3 4.5 4.17

186, 187, 192 187 65 n. 5

Alexis fr. 3 K-A

68 n. 21

Andocides 1.11 1.11-17 1.11-18 1.12 1.12-14 1.13 1.13-15 1.14

41 n. 11 229 n. 21 231, 232, 234 45 n. 39, 231 41 n. 12 42 n. 16, 45 n. 39, 46 nn. 51 and 56, 230 n. 28 231 41 n. 9, 47 n. 51, 207 n. 19, 229

350

1.15 1.15-18 1.16 1.16-18 1.17 1.17-18 1.18 1.19 1.19-24 1.20 1.22 1.23 1.26 1.27 1.27-28 1.28 1.29 1.34 1.34-35 1.35 1.36 1.37 1.40 1.43 1.44 1.45 1.46 1.47 1.48-50 1.48-51 1.49 1.51 1.52 1.52-53 1.59 1.61-64 1.64 1.65 1.66 1.67

Index of Passages Cited

41 nn. 6 and 8, 42 nn. 17 and 20, 47 n. 51, 207 n.19, 228, 230 n. 28, 231 230 n. 27 43 nn. 22 and 23, 47 n. 51, 230 n. 28 231 45 n. 37, 47 n. 51, 50, 230 n. 28, 231 43 n. 24 47 n. 51 47 nn. 51 and 53 231, 232 47 nn. 51 and 53, 228, 230 n. 27 47 nn. 51 and 53, 51 n. 69 47 nn. 51 and 53 47 nn. 51 and 53 44 n. 32, 47 n. 51, 48 n. 57 41 n. 7, 47 n. 50 207 n. 19 47 nn. 51 and 53 44 n. 31, 229 n. 21 42 nn. 18 and 20 207 n. 19, 229 n. 21 41 n. 9, 42 n. 19, 52 n. 70 43 n. 25, 141 41 nn. 7 and 9, 229 n. 25 43 n. 25, 48 n. 57, 52 n. 72, 236 n. 6 43 n. 26 49 n. 64 142, 143 n. 23, 207 n. 19 229 n. 21 43 n. 28 43 n. 27 44 n. 31 53 n. 75 46 n. 42 44 n. 31 44 n. 31, 46 n. 42 43 n. 28 51, 51 n. 69 43 n. 29, 230 n. 27 44 n. 30 46 n. 42

Evidence and Proof in Ancient Greece

1.67-68 1.69 1.73-90 1.74 1. 77 1.130 1.144-150 1.148 2.23

44 n. 31 142 67 n. 15 29 207 n. 19 71 n. 27 207 212 230 n. 28

Anonymous Barlaam and Josaphat 26-27

277, 278

Anonymus Seguerianus 215 (Neocles)

186

Antiphanes fr. 27 K-A fr.157 K-A

68 n. 21 165 n. 21

Antiphon 1.29 2.1.9 2.2.7 3.1.7 5.23 5.31 5.32 5.42 5.43 5.71 6.16 6.19 6.22 6.23 6.25 6.29

108 96 nn. 38 and 39 95 143 n. 23 93 n. 26 92-93 102 n. 73 94 n. 30 96 141 n. 21 93 89 n. 8, 93 n. 27, 94 n. 29 94 n. 31 93 n. 28 94 n. 31 94

351

352

Index of Passages Cited

Apollodorus Epitome E 5.9-10

244 n. 23

Appian Syriaca 4.212

275

Archilochus F 19 W2

263, 266

Aristophanes Acharnians 204-224 926

229 n. 24 107 n. 7

Birds 1031

107 n. 7, 109 n. 10

1071-1073 1213ff.

54 n. 78 225 n. 17

Clouds 264-266 398-402 423-424 494-496 495 627-629 667 814 816-831 826 830 1232-1236 1239-1242 1297

122 122 122 107 109 n. 10 122 122 122 122 122 54 n. 78 122 122 107, 109 n. 10

Ecclesiazusae 686

165 n. 19

Frogs 33-34 190-192 279-282

110 n. 17 110 n. 17 112

Evidence and Proof in Ancient Greece

465-478 465-493

105 112

494-497 498-521 522-533 523 528 528-529 529-531 530 531 532-533 534-541 579-588 582-583 646-665 693-699 891-894 948-955 954 1061-1068

105, 112 105 105, 109, 117 112 104, 106, 107 n. 7, 109, 110 n. 16, 112, 114 110 111, 116 114 112 113 113 113 112 n. 22 113 110 n. 17 116 115, 115 n. 33 115 114

Knights 255 259-260 691-701 1014-1029 1023

161-162 n. 8 123 n. 22 123 n. 22 123 n. 22 123

Lysistrata 564 Peace 1119

165 n. 19 107 n. 7, 109 n. 10

Thesmophoriazusae 148-152 159-166 808-809

111 112 n. 20 161 n. 5

Wasps 83 238 497 672-677 970-972

122 165 n. 19 165 n. 19 123 n. 22 123 n. 22

353

354

1401-1405

Index of Passages Cited

129 n. 43

Wealth 427 932

165 n. 19 107 n. 7, 109 n. 10

Aristotle Historia Animalium 488b22 608a21-28

123 n. 19 124 n. 26

Nicomachean Ethics 1.1094b11-14 1.1098a26-29 7.1149a25-32

274 274 127 n. 34

Poetics 9-10.1451a36-b11 11.1452a29-1452b1 11.1452a30-31 16.1454b20-1455a20

276 217 n. 1 218 217 n. 2

Politics 1274b

13 n. 17

Rhetoric 1.2 1.2.2-3, 1355b35-56a4 1.2.18, 1375b 1.9.33 1.15 1.15.16, 1376a12-14 1.15.18, 1376a23-32 1.15.29, 1377a23-24 2.1.9ff., 1378a30ff. 2.2.5-6, 1378b23-29 2.3.6, 1380a 3.7.7, 1408a 32-36 3.19.1, 1419b 3.19.1-2, 1419b

174 n. 4 80 182 258 n. 44 235 n. 3 146 n. 10 146 n. 9 243 60 59 127 n. 34 71 n. 27, 135 n. 12 198 199

[Aristotle] Athenaion Politeia 3.5 6

12 n. 15 263

Evidence and Proof in Ancient Greece

6.3-4 8.4 11.3 12.1 18 28.5 42 42.1 42.1-2 53.1-2 59.6 68.4

262 50 262 262 236 113 n. 25 62 159 n. 1 232 57 31, 31 n. 14 31

[Aristotle] Rhetoric to Alexander 2 7 15.1 15.4-5 17-18 38.10

80 80 93 n. 25 151 n. 33 235 n. 3 198

Athenaeus 13.496b-c 13.590d 13.590e 13.591b 13.591e 14.621f

267 n. 24 186, 189-190 193 n. 22 192 n. 20 193 n. 21 56 n. 3

Aulus Gellius 12.1.17-8

165 n. 21

Bacchylides 19.30

241

Choricius 29.2.45 29.2.76

186 186

355

356

Index of Passages Cited

Cicero Tusculan Disputations 1.101 5.4.10

272 n. 42 131

Cornelius Nepos Alcibiades 3.6 4.5

49 n. 63 44 nn. 35 and 36

Craterus FGrH 342 F 16

54 n. 78

Cratinus Cheirons fr. 249 K-A

121 n. 11

Cyrill Against Julian 6.190

121 n. 12

Demosthenes, [Demosthenes] 9.41 18.132 18.132-133 18.135 18.137 18.259-260 18.267 18.297 18.321-324 19.8 19.218 19.333 19.341-343 20.163 20.167 21.1 21.2 21.6

71 n. 27, 144 n. 29 161 n. 8 52 n. 73, 168 n. 28 25 n. 48 25 n. 48 165 n. 18 25 n. 48 208 n. 22 208 202 71 n. 27 202 203 203 203 153 n. 40 153 n. 41 153 n. 41

Evidence and Proof in Ancient Greece

21.11-12 21.12 21.12-19 21.18 21.19 21.21 21.25 21.25-26 21.36 21.39 21.69 21.72 21.74 21.80-82 21.82 21.83 21.83-93 21.86 21.88 21.92 21.93 21.97 21.98 21.105-106 21.107 21.121 21.139-142 21.154-167 21.161 21.165 21.168 21.174 21.179 21.180-181 21.184-227 21.188 21.189-192 21.194 21.206 21.214 21.217

153 n. 40 153 n. 41 155 n. 50 138, 154 n. 44 155 n. 51 153 n. 42 155 n. 49 153 n. 40 154 n. 43 154 n. 43 153 n. 41 153 n. 41, 154 n. 43 154 n. 44 155 n. 52 153 n. 42 155 n. 55 155 n. 55 155 n. 55 155 n. 55 155 n. 55 153 n. 42, 155 n. 54 156 n. 58 156 n. 58 156 n. 59 153 n. 42, 156 n. 59 153 n. 42 151 n. 31 156 n. 60 156 n. 60 156 n. 60 153 n. 42, 156 153 n. 42, 156, 157 n. 61 154 n. 43 154 n. 43 203 203 203 153 n. 41, 154 n. 44 153 n. 41 153 n. 41 71 n. 27, 153 n. 41, 154 n. 44, 203

357

358

21.219 21.222 21.223-225 21.226-227 21.227 22.1-3 22.5-11 22.22 22.27 22.69-78 22.73 22.78 23.215 23.215-218 23.219 24.9 24.11 24.149-151 24.215 24.218 25.40 25.47 25.98 25.101 26.25-27 27.8 27.17 27.22 27.26 27.28 27.33 27.39 27.41 27.42 27.46 27.63-65 28.10 28.11-13 28.20 28.24 29.12

Index of Passages Cited

153 n. 41 203 203 138 n. 17, 154 n. 44 203 204 204 258 n. 44 50 n. 66 204 204 204 202 204 204 45 n. 38 47 n. 55, 48 124 n. 27 205 205 125 n. 29 161 n. 8 205, 207 205 205 n. 16 17 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 210 17 n. 8 17 n. 8 210 210 17

Evidence and Proof in Ancient Greece

29.18 29.21 29.26 29.39 29.53 29.54 29.55 29.57 29.139-142 30.9 30.17-18 30.24 30.30 30.32 30.34 30.36 30.37-39 31.4 31.12 33.14 33.30-33 33.35 33.36 33.38 34.30 34.43 34.46 34.49 34.52 35.14 35.20 35.62 36.3 36.39 36.61 36.62 37.60 38.27-28 39.29 39.33 39.39

17 17 n. 8, 18 17 17 n. 8, 18 17 17 n. 8, 18 212 212 151 n. 31 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8 17 n. 8, 210 211 211 17 n. 8 211 109 n. 10 214 214 214 214 143 n. 25 201 n. 7 214 201 n. 7 211 n. 26 143 n. 22 253 n. 22 214 35 n. 25 143 n. 24 214 214 214 214 143 n. 25 135 n. 9 143 n. 26, 201 n. 8

359

360

40.9 40.32-33 40.53-54 40.58 40.59 43.8 43.31 43.35-37 43.42-46 43.48 43.49 43.48-49 43.70 43.84 44.4 44.7 44.27-32 44.32 44.40 44.50 44.57 44.57-59 44.58 44.59 45.3-7 45.8 45.15-16 45.17-19 45.19 45.23-26 45.24 45.26 45.27-39 45.43 45.44 46.5 46.6-7 46.7 46.8 46.9 46.10

Index of Passages Cited

143 n. 25 149 n. 24 135 n. 13 135 n. 11 143 n. 22 143 n. 22 233 n. 35 233 n. 35 233 n. 35 233 n. 35 233 n. 35 233 n. 35 233 n. 35 213 143 n. 26 14 15 9 15 14 15 15 15 15 32 n. 24 35, 143 n. 22 35 35 152 n. 37 35 143 n. 22 152 n. 36 35 35, 152 n. 37 16, 24, 26, 26 n. 50 143 n. 22, 152 n. 37 29 134 n. 4, 253 n. 22 29, 36 134 n. 4, 135 n. 11 33, 36

Evidence and Proof in Ancient Greece

46.10-11 47.1 47.1-4 47.2 47.5 47.6 47.7 47.8-10 47.10 47.11-12 47.13-15 47.20-23 47.24 47.27 47.34 47.37-38 47.38-39 47.40 47.41-44 47.44 47.45 47.46 47.49 47.64 49.66 50.3 50.7-8 50.63 50.64 50.68 53.16 54.1 54.3 54.3-6 54.3-9 54.4 54.4-5 54.5 54.6 54.7 54.7-12

36 29, 38 n. 31 37 33 36, 38 38 58 38 36 38 38 36 25 25 109 n. 10 36 148 n. 16 38, 148 n. 16 36 25 36 37 33 38 71 n. 27 142 143 200 201 200 109 n. 10 60, 148 n. 17 62 n. 13 56, 63 60 63 n. 14 147 n. 13 63, 147 n. 12 63, 147 n. 12 55 n. 2, 61 56

361

362

54.8 54.8-9 54.9 54.9-12 54.10 54.11 54.11-12 54.12 54.13 54.13-14 54.15 54.16 54.17 54.22 54.24 54.26 54.26ff. 54.26-37 54.27 54.28 54.29 54.30 54.31 54.31-36 54.32 54.33 54.33-35 54.34-35 54.35 54.36 54.37 54.39 54.40 54.41 55.7 55.14 55.21 55.27 55.35 56.48 57.1

Index of Passages Cited

62 150 n. 26 57, 60, 149 n. 19, 150 nn. 27 and 28 148, 150 148 n. 17, 149, 149 n. 22, 150 nn. 27 and 28 150 n. 25 150 n. 26 94 n. 33, 148 n. 17, 149, 150 n. 27 150 nn. 25 and 28 56 60 56 n. 3 59 60 61, 150 n. 28 62 150 57 60 n. 9, 62 149 n. 21 60 n. 9, 150 60 n. 9, 61 56, 152 151 57, 61, 148 n. 20 151 nn. 29 and 32 151 n. 34 60 60 148 n. 17, 151 152 61 59 59 144 212 212 212 212 211 162

Evidence and Proof in Ancient Greece

57.4 57.8 57.8-14 57.9 57.11 57.13 57.14 57.14-28 57.17 57.18 57.19 57.21 57.21-22 57.22 57.23 57.25 57.24-25 57.27 57.28 57.30-45 57.31 57.34 57.35 57.36 57.37 57.38 57.39 57.40 57.42 57.43 57.44-45 57.45 57.46 57.52 57.53 57.54 57.63 57.66 57.66-67 57.68 57.70

134 n. 4, 162 n. 11 160, 161, 166 161 161 161, 162 162 162, 232 232 163 163 164, 233 232, 233 163 232 163, 168, 232 232 163 232 163, 232 163 164 161 n. 8, 162, 164, 165 163, 164, 166 162 233 232 232, 233 232 166 169, 232 163, 165 233 168, 169, 232 163, 169 170 n. 36 169 166 166, 166-167 n. 25 167 164, 167-168 168

363

Index of Passages Cited

364

58.8 58.66-70 59.32 59.109 59.110-115 59.112 59.125 59.126

201. 8 207 143 n. 22 71 n. 27 75 n. 35 75 n. 37 202 n. 10 205

Dinarchus 1.1 1.52 1.95 1.107 1.111 1.113 2.6 fr. lx.1.103

206 45 n. 38 47 n. 54, 48 45 n. 38 206 206 206 23 n. 37

Diodorus Siculus 8.22 10.3 12.38-41.1 13.2.3 13.5.1 13.5.4 13.69.2

121 n. 10 258 n. 44 274 41 n. 7, 47 n. 50 49 n. 63 44 n. 35, 45 n. 37 44 n. 36, 54 n. 79

Diogenes Laertius 7.32 8.22

120 n. 8 121 n. 10

Dionysius of Halicarnassus Demosthenes 2 13

61 60, 63

Duris of Samos FGrH 76 F 10 F 13 F 15

275 275 275

Evidence and Proof in Ancient Greece

F 60

275

Ephorus FGrH 70 F 196 F 216

274 274-275 n. 51

Eupolis fr.262 K-A

165

Euripides Andromache 284ff. 289ff.

194 n. 26 194 n. 26

Heracles 754

107

Heraclidae 69-72

106

Hippolytus 611-612

243

Ion 510-516 510-675 517-562 517f. 518-529 545-556 559-662 563-568 569-667 575 581 668-675 1250-1319 1250-[1622] 1320-[1368] 1369-1548 1395-1545 1546-1547 1549-[1622]

222 n. 10 222 222 n. 10 226 n. 18 222 222 222 222 n. 10 222 n. 10 222 220 222 n. 10 222 n. 10 222 222 n. 10 222 n. 10 222 222 222 n. 10

365

366

Index of Passages Cited

Rhesus 149-154 149-194 154-181 157-158 159 159-163 160 164 164-165 165 167-168 169-170 171 173-178 181 182-183 189-190 198 216-218 224-263 274-295 501-509 521 573 574-576 575 579 591-592 591-593 595-607 688 710-721 816-819 826-832

242 238 237 242 242 242 242 242 242 242 242 242 242 242 242 237 243 141 241 239 238 240 n. 16 239 239 238 239, 247 237 237 238 237 239 240 n. 16 237 n. 10 237 n. 10

Eusebius of Caesarea History of the Church 4.3.3

279

Evidence and Proof in Ancient Greece

Eustathius Commentary on the Iliad 4.579 186

Gorgias Defence of Palamedes 11 15

95 n. 36 95

Harpocration, s.v. hypomosia parastasis

58 58

Hermogenes On Invention 3.2

64 n. 3

On the Method of Forcefulness 12

167

Anon. Hermog. 7.623

64 n. 3

Herodian 1.1.3

275

Herodotus Proem 1.1-4 1.3.2 1.4.1 1.12.2 1.14 1.23 1.24 1.27 1.29.1-33 1.32.2-4 1.56.2 1.59-68 1.65.2

273 265 n. 19 264 264 266 266 266 266 265 263 263 263 263 265 n. 20

367

368

1.86 2.23 2.28 2.31 2.33 2.53.1-2 2.54 2.79 2.99 2.99.1 2.112-120 2.116.1-2 2.117 2.118-120 2.120.3 2.134.2 2.135 2.147.1 2.154.4 2.156.6 2.177.2 3.40-44 3.38.4 3.62 3.63 3.74-75 3.121.1 4.13.1 4.14.3 4.16.1 4.25 4.29 4.32 4.35 4.88.2 5.59-61 5.67.1 5.77.4 5.95.1 5.95.1-2 5.102

Index of Passages Cited

264 268 99 99 n. 52 99 nn. 50 and 53 268 99 n. 49 266 98 n. 44 268 268 269 270, 271 268 n. 27 271 268 267 268 268 266 263 264 264 99 99-100 100 n. 57 265, 266 271. 35 266, 271 n. 35 271 n. 35 99 n. 51 271 271 266 272 272, 272 n. 38 271 272 265 n. 20 266 272

Evidence and Proof in Ancient Greece

5.113 6.21.2 6.52.1 6.101.3 6.114 7.1.1 7.6.3 7.46 7.159 7.161.3 7.203.2 7.226-227 8 ȕ.3 8.68Ȗ.1 9.27.4 11.2

261 265, 275 265, 266 272 n. 40 266 272 n. 40 266 264 271 271 264 272-273 n. 43 272 n. 40 265 271 272 n. 40

Hesiod Theogony 231ff. 232 804 831

119 n. 1 238 n. 12 119 n. 1 119 n. 1

Works and Days 190-194 219-225 238-239 282

119 n. 1 119 n. 1 119 n. 1 238 n. 12

Himerius Orationes 13.5

130 n. 46

Hippocrates Prognostics 1

101 n. 64

Diseases 1.1 On the Art

101, 101 n. 70

11

101

369

370

Index of Passages Cited

Homer Iliad 1.320 2.184-185 2.201 2.212-213 2.212-223 2.217-218 2.280 2.301 2.484-493 3.279 6.45-65 7.274-278 9.145 10.1-2 10.12-13 10.37-38 10.178 10.184-188 10.205-210 10.207 10.212-213 10.212-217 10.214-216 10.218-253 10.220 10.228-230 10.238-239 10.260 10.307 10.313 10.314-315 10.316 10.317 10. 319 10.319-327 10.321-323 10.321-324 10.324-327 10.328-333

240 n. 18 240 n. 18 240 240 240 241 240 n. 18 98 n. 43 93 n. 24 238 n. 12 245 n. 24 240 n. 18 244 239-240 n. 15 239-240 n. 15 240 n. 17 245 243 245 239 241 241 241 240 240 240 244 245 241 240 240 240, 241, 244 241 240 240 243 237 243 238

Evidence and Proof in Ancient Greece

10.332 10.334-335 10.340-349 10.346 10.350 10.355-356 10.363-364 10.370 10.374-377 10.374-446 10.378-379 10.380-381 10.383-384 10.385-389 10.391-399 10.401-405 10.405-411 10.406-411 10.414-418 10.421 10.432-441 10.435 10.442-445 10.443-445 10.462-464 17.322 18.501 19.260 21.100-105 23.581-585 23.587-588 23.596 24.179 24.356

237, 243 241 n. 19 245 245 245 245 245 245 245 236 245 240-241 245-246 246 246 243 247 239 247 247 247 238 n. 14 247 246 238 240 n. 18 260 n. 4 238 n. 12 245 n. 24 243 243 240 n. 18 240 n. 18 240 n. 18

Odyssey 4.677-679 9.272-280 9.282 9.283-286 9.365 14.29-32

244 n. 22 246 246 246 246 125 n. 28

371

372

14.37-38 16.4-7 16.8-10 16.161-163 16.412 22.372

Index of Passages Cited

125 n. 28 125 n. 28 125 n. 28 125 n. 28 244 n. 22 246 n. 25

Hyperides 1 Lycophron 19-20

209

2 Philippides 4 12 13

205 29 202, 205

3 Athenogenes 33

23 n. 37

4 Euxenippus 7-10 8 40-41

50 187 209

5 Against Demosthenes 39

206

6 Funeral Speech 23 fr.29 Jensen

258 n. 44 160 n. 2

Isaeus 1.10 1.12 1.13 1.16 1.31 1.32 1.41 1.49 1.51 2.2 2.5 2.10 2.16 2.17

178 182 n. 19 182 n. 19 21 179, 182, 182-183 n. 19 21 143 n. 25 213 213 212 21 174-175, 175 n. 8 21, 212 212

Evidence and Proof in Ancient Greece

2.34 2.37 2.38 2.45 2.47 3.7 3.12 3.13 3.13-15 3.14 3.15 3.18-21 3.19 3.21 3.37 3.40 3.43 3.53 3.56 3.76 3.79 3.80 4.1 4.2 4.12 4.18 4.19 4.20 4.24 4.26 4.31 5.2 5.2-3 5.26 5.31 6.1 6.11 6.14 6.19 6.28 6.48

21 21 212 211 212 21 n. 32 21 n. 32 233 n. 33 21 n. 32 233 n. 33 233 n. 33 19 n. 18 134, 182 n. 19 253 n. 23 21 n. 32 143 21 n. 32 233 n. 33 21 n. 32 233 n. 33 182 n. 19 233 n. 33 182 n. 19 22 182 n. 19 22 178 22 22 22 22, 213 19 n. 18, 22 18 182 n. 19 182 n. 19 143 n. 26, 182 n. 19 23 n. 36 20 n. 21 68 n. 20 182 n. 19 182-183 n. 19

373

374

Index of Passages Cited

7.11 7.27-28 7.30 7.45

182 n. 19 161 n. 7 175 n. 9 213

8.6 8.15

182 n. 19 182 n. 19, 182-183

8.15-17 8.21-22 8.26-27 8.43 8.46 9.1 9.4 9.10 9.14 9.16 9.21 9.26 9.30 9.35 9.36 10.6 10.7 10.16 10.20 10.22 10.26 11.1 11.4 11.11 11.22 11.40 11.43 11.46 12.4 12.5-6 12.11 12.12

180 181 181 20 n. 22 213 20 n. 23 176 143 n. 22, 182 n. 19 20 n. 23 182 n. 19 176 182 n. 19 176 213 177 182 n. 19 21 182 n. 19 21 21 213 22 22 22 22 182 n. 19 21 21, 33 135 n. 11 163 n. 12 56, 182-183 n. 19 182-183 n. 19

Isocrates 16.6

49 n. 63

Evidence and Proof in Ancient Greece

16.7 16.9 16.46 18.6 18.68 19.4 19.51 20.1 21.2 21.12 20.20

44 n. 32 44 n. 36 44 n. 35 109 n. 10 214 176 n. 11 213 61 n. 11, 148 n. 16 200 143 n. 25 210

St Jerome Chronicon ad ann. 125-126

279

Epistles Ad Magnum Oratorem, Ep. LXX 4

De viris illustribus, Ep. XX Josephus Against Apion 2.263f.

121 n. 12

[Longinus] On the Sublime 34.3

195

Lucian Lexiphanes 10

56 n. 3

Lysias 1.23

109 n. 10

1.27 3.7 3.15-16 3.47 6.17-18 6.18

26 n. 50 109 n. 10 108 212 54 n. 78 53 n. 75

279 279

375

376

6.23 6.24 6.55 7.42-43 9.9 9.13 9.22 10.1 10.5 10.14 10.15 10.16 10.17 10.22-24 10.26-28 10.31 10.32 12.71-76 12.72-74 12.73 12.74 12.84 12.92-94 13.2 13.18 13.19 13.21 13.22 13.27 13.32 13.35 13.50 13.56 13.59 13.66 14.47 16.8 16.17 19.60 19.61 20.34

Index of Passages Cited

230 n. 27 230 n. 27 207 n. 18 207 208 208 208 133 n. 1 24 24 24 24 238 n. 12 30 210 210 210 113 n. 25 138 n. 15 138 137 138 138 48 n. 60 48 n. 60 48 n. 60 48 n. 60 48 n. 60 52 n. 71 48 n. 60 45 n. 38 230 n. 26 230 n. 26 52 n. 71 18 202 27 n. 51 213 n. 30 208 208 71 n. 27

Evidence and Proof in Ancient Greece

20.35 22.12 23.9 fr. 135 Carey fr. 195 Carey frr. 278-279 Carey

168 n. 28, 208 136 109 n. 10 18 59 59

Menander Samia 488 574-582 576 580

109 n. 10 107 107, 109 n. 10 107-108

Pausanias Attica į 14

23 n. 16

Philostratus Life of Apollonius 5.14

129

Photius Bibliotheca 61.20b.1-8 264.490a alpha 260

64 n. 2 64 n. 3 64 n. 3

Pindar Olympians 1.34 13.108

98 n. 43 98 n. 43

Plato Apology 17 17b 20d 22a 23c

120 n. 7 124 120 n. 7 120, 124 124

377

378

23c3-5 24b3 24b-c 26b8-c7 28e 30e 30e4 32 32b 33c 34c-35d 35c4-d 35d 39c

Index of Passages Cited

124 124 121 n. 12 124 121 n. 13 128 131 120 n. 7 121 n. 13 120 n. 7 208 n. 21 124 n. 27 120 n. 7 120 n. 7

Charmides 157c 172d-e

121 n. 14 120

Cratylus 411b3-4

120

Crito 52e

265 n. 20

Euthydemus 298d

128 n. 37

Euthyphro 13a19

124 n. 26

Gorgias 456b 461a7-b2 466c3-5 482b4-6 515a

101 n. 63 120 120 120 59-60

Hippias Major 283e 287e5-6 298b5-9

265 n. 20 120 120

Laws 654e3 728d1 808d2 824a 906d

124 124 126 124 n. 26 125

Evidence and Proof in Ancient Greece

907 936-937a 937c 937c-d 949a6 967d

125 121 n. 14 29 n. 3 33 124 n. 27 129 n. 40

Lysis 211e6-9

120

Minos 321b3 321c

121 n. 11, 126 126

Parmenides 128c

130

128c1

124

Phaedo 60c1-2 60c8-61b7 60e6-7 66a 66c 98e-99a 115b-c

131 131 131 124 124 120 124

Phaedrus 228b 252e7 265e

121 n. 11 124 262

Protagoras 342c

59-60

Republic 1.335e 1.340a 2.365d 2.374e 2.375a 2.375a-376 2.375b 2.375d 3.375d-e 3.375e 3.376a-b 3.376b

92 n. 18 92 124 n. 26 126 126 126 126 126 127 127 127 127

379

380

3.399e 3.399e5 3.404a 3.416a 4.440d 4.441b-c 4.422d 5.451d 5.459a 5.466c9 7.539b 8.567d-e 9.592a

Index of Passages Cited

121 n. 11 120 125 125, 128 nn. 35 and 38 125, 128 125 n. 30 125 n. 31 124 n. 26 124 n. 26 123-124 125 120 120

Sophist 231d2-3

128

Statesman 263b1 265d4 266a 267d6 267e9 268b6 268c1

124 126 130 126 126 126 126

Symp. 215b-e 216d 221d5-6

131 n. 55 130 130

Theaetetus 171c1

125

Plato Comicus fr. 61 K-A fr. 183 K-A

164 164 n. 13

Plautus Captivi 450 506 540ff. 872-876

225 n. 27 225 n. 27 225 225

Evidence and Proof in Ancient Greece

954-977 971ff. 978-997 998-1036

225 225 225 225

Menaechmi 1096-1099 1105 1111-1123 1125-1135 Poenulus

227 227 227 227

5.2

219 n. 6

Plutarch Alcibiades 4-5 16.2-3 19.1 19.2 19.7 20.3 22.3 22.5.

42 n. 14 274 41 n. 10 41-42 n. 13 42 n. 15 41-42 n. 13 44 n. 33, 49, 49 n. 65 44 nn. 35 and 36

Demosthenes 5.6

60

Phocion 10.1-3

59

Nicias 9.7 17.4 18.3

274 274 274

Pericles 8.4 13.8-10 16.2 25.9-10 30.4 31.2 31.2-4 32 33.8

274 274 274 274 274 47 n. 54, 229 n. 22 48 n. 59 45 n. 38 274

381

382

39.2

Index of Passages Cited

274

Solon 14 15.7-9 18 30

262 263 262 264

Moralia 51 556f-557a 974a

124 n. 24 130 n. 50 128-129

[Plutarch] Lives of the Ten Orators 849a 849e

193 n. 21 186, 189

Pollux Onomasticon 8.85-87

167

Polybius 2.56.10-12 3.8-9 4.40.2 12.25a3 38.22.2

276 260, 275 276 254 n. 27 275

Posidippus Ephesia fr. 12 F 17

187, 194 267 n. 24

Sappho Brothers

267 n. 24

Solon F 5 W2 F 13 W2 F 19 W2 F 27 W2

262 263 263, 266 263

Evidence and Proof in Ancient Greece

F 32-33 W2 F 36 W2

262 263

Sopater Scholia on Hermogenes 5.38 Walz 5.114 Walz 5.206 Walz

64 n. 3 64 n. 4 64 n. 4

Sophocles Oedipus at Colonus 1357

168 n. 28

Oedipus Tyrannus 1152-1157

239

Philoctetes 604-613 1018

244 n. 23 168 n. 28

Trachiniae 187

100 n. 58

Strabo 6.3.3 14.1.16 17.1.33

274-275 n. 51 265 267 n. 24

Suda delta 1171

64 n. 1

Terence Andria 922-945 1006

224 226

[Theocritus] 25.78-83

126 n. 31

Thucydides 1.1.3 1.10.3 1.11.1-2

274 273 274

383

384

1.18.1 1.21.1 1.132.3 2.37 6.2.1 6.27.2 6.27.3 6.27-28 6.28 6.28.1 6.28.2 6.29.1-2 6.29.3 6.53.1 6.53.2 6.54.7 6.55.1 6.60.2 6.60.3 6.60.4 6.60.4-5 6.61.1 6.61.2 6.61.7 7.42.2 8.54.4 8.68 8.89-92

Index of Passages Cited

265 n. 20 273, 274, 276 273 66 n. 10 274 41 nn. 6 and 7, 47 nn. 50 and 53 41 n. 5 49 n. 63 59 41 n. 10 41 n. 13 42 n. 14 42 n. 15 44 n. 34, 47 n. 51, 49 n. 65 52 n. 70 273 273 n. 48 43 n. 28, 51, 54 n. 80 43 n. 27 44 nn. 30 and 31, 46 n. 47, 53 n. 75 54 n. 80 44 n. 32, 49 n. 63, 54 n. 80 49 n. 64 42 n. 21, 44 n. 35 274 58 113 n. 25 113 n. 25

Timaeus of Tauromenium FGrH 566 F 92 F 152 F 157

275 275 275

Timocles fr. 14 K-A fr. 15 K-A fr. 32 K-A

169 n. 34 169 n. 34 68 n. 21

Evidence and Proof in Ancient Greece

Virgil Aeneid 12.346-352

241 n. 20

Xenophon Apology 10

121 n. 12

24

121 n. 14

Cynegeticus 4.4 6.15

124 n. 25 124 n. 25

Hellenica 1.6-7 2.3.15-56

46 n. 46 113 n. 25

Memorabilia 1.1 1.1.1 1.18 2.3.9 2.7.13-14 2.9.2 4.1.3

121 n. 14 121 n. 12 121 n. 14 125 n. 28 124-125 125 n. 28 126

385

INDEX OF INSCRIPTIONS CITED

IC III iii 3 IC IV 72, col. XI 26-31 IG I3 157/213 IG I3 421.10 IG I3 421.26-32 IG I3 421.34 IG I3 422.191ff. IG I3 422.193ff. IG I3 422.202ff. IG I3 422.204-11 IG I3 422.216f. IG I3 422.217-219 IG I3 422.220-221 IG I3 422.223 IG I3 422.226-227 IG I3 422.229ff. IG I3 422.375-378 IG I3 424.10-16; 27-30. IG I3 426.53-64 IG I3 426.65-72 IG I3 426.78-79 IG I3 426.83-84 IG I3 426.100-102 IG I3 426.102-105 IG I3 426.106-107 IG I3 426.107ff. IG I3 426.125ff. IG I3 426.141ff. IG I3 426.177-178 IG I3 426.185-191 IG I3 427.1 IG I3 427.46-85 IG I3 428.9-10 IG II 2 410.3 and 23 IG II2 1205.3-5

257-258 n. 43 12 252 n. 18 42 n. 21 42 n. 16 42 n. 21 43 n. 23 43 n. 23 43 n. 23 42 n. 16 42 n. 16 42 n. 16 42 n. 16 42 n. 21 49 n. 65 42 n. 21 42 n. 16 43 n. 23, 44 n. 35 42 n. 16 42 n. 16 49 n. 65 49 n. 65 49 n. 65 42 n. 21 43 n. 23 43 n. 23 43 n. 23 43 n. 23 49 n. 65 43 n. 23 49 n. 65 43 n. 23 42 n. 16 229 n. 25 229 n. 25

Evidence and Proof in Ancient Greece

IG II2 1330 IG II2 7103 IG II3 I 306.8 IG V,1 1428 IG VII 4139 IG VII 4141 IG IX,1 222 IG IX,12 1:187 IG X,2 1:1028 IG XI,4 713 IG XII,1 1032 IG XII,2 509/658 IG XII,4 1:153/154 IG XII,4 1:216 IG XII,4 1:222 IG XII,6 1:12 IG XII, Suppl. 249 IG Bulg I2 314a I.Kaunos 17 I.Labraunda 43 I.Magnesia 101 IK Byzantion 1 IK Perge 12 I.Priene 57 I.Priene 108 I.Priene 110 IvO 39 IvO 52 MDAI(A) 32 (1907) 273, 10 Milet I 3, 141 SEG XIII 17 SEG XIII 89 SEG XIII 94 SEG XXI 519.10-14 SEG XXVI 677 SEG XXXVI 296 SEG XXXIX 1243 Tit. Calymnii 8 Tit. Calymnii 12 Tit. Calymnii 25 Tit. Calymnii 28

255 n. 32 62 229 n. 25 249 n. 2 256 n. 39 256 n. 39 255 n. 35 256 n. 36 249 n. 1 255 n. 34 251 n. 14 256 n. 40 257 n. 43 257 n. 43 257 n. 43 251 n. 13 252 n. 16 255 n. 28 257-258 n. 43 255 n. 33 257 n. 42 255 n. 28 251 n. 10, 252 n. 15, 253 n. 25 257 n. 42 255 n. 30 255 n. 30 255 n. 35 249 n. 2 255 n. 29 256 n. 36 44 n. 31 44 n. 31 44 n. 31 229 n. 25 257 n. 41 14 n. 24 255 n. 31 257 n. 43 257 n. 43 257 n. 43 257 n. 43

387

388

Tit. Calymnii 29 Tit. Calymnii 32 Tit. Calymnii 33 Tit. Calymnii 35 Tit. Calymnii 54 Tit. Calymnii 55 Tit. Calymnii 56 Tit. Calymnii 57 Tit. Calymnii 61 Tit. Calymnii 79

Index of Inscriptions Cited

257 n. 43 257 n. 43 257 n. 43 257 n. 43 257 n. 43 257 n. 43 257 n. 43 257 n. 43 257 n. 43 252 n. 19, 253 n. 21

INDEX OF PAPYRI CITED

Heidelberg inv. G 1013 P.Cairo inv. SR 3056 P.Hal.Inv. 13. P.Lit.Lond. 223 P.Oxy 1611 P.Oxy. 1625 P.Oxy. 1778 P.Oxy. 4030 P.Oxy. 4041 P.Oxy. 4049

281 n. 15 83 81 n. 4 281 n. 15 269-270 n. 30 83 281 n. 15 81, 81 nn. 4 and 5 83 83