Litigation and Cooperation: Supporting Speakers in the Courts of Classical Athens 351507757X, 9783515077576

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Lene Rubinstein

Litigation and Cooperation Supporting Speakers in the Courts of Classical Athens

Historia Einzelschriften 147

Franz Steiner Verlag Stuttgart

HISTORIA-EINZELSCHRIFTEN

Herausgegeben vonMortimer Chambers, Heinz Heinen, François Paschoud, Hildegard Temporini und Gerold Walser

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6415-X

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87. David Whitehead, Ed.: From Political Architecture toStephanus Byzantius. Sources for the Ancient Greek Polis. 1994. 124 S., 11 Abb., 5 kt. 6572– (zugleich: Papers fromtheCopenhagen Polis Centre, Vol. 1) 88.Bernhard Kremer: DasBildderKelten bisin augusteische Zeit Studien zurInstrumentalisierung eines antiken Feindbildes bei griechischen und römischen Autoren. 1994. 362 S., 2 kt. 6548–

89.Joachim Szidat: Historischer Kommentar zu Ammianus Marcellinus Buch XX-XXI.

Teil III: Die Konfrontation. 1996. 293 S., kt. (vgl. Bde. 31 u. 38) 6570– 0 90.Odile DeBruyn: Lacompétence de l’Aréopage en matière de procès publics. Des origines romaine

dela polis athénienne à la conquête dela Grèce (vers 700– 146 avant J.-

C.). 1995. 226 S., kt.

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chungen zuihrer Stellung innerhalb derRangordnung des Römischen Heeres undzuihrer Funktion. 1995. 246 S., kt. 8 6660– 93. Andrew Drummond: Law, Politics and Power. Sallust andtheExecution oftheCatilinarian Conspirators. 1995. 136 S., kt. 6741– 8 94.Heinrich Schlange-Schöningen: Kaisertum

und Bildungswesen im spatantiken Konstantinopel. 1995. VIII, 189 S., kt. 6760– 4 95.Mogens Herman Hansen andKurtRaaflaub (Eds.): Studies inthe Ancient Greek Polis. 1995. 219 S., kt. 0 6759– (zugleich: Papers fromtheCopenhagen Polis Centre, Vol. 2) 96. Martin Jehne (Hg.): Demokratie inRom? Die Rolle des Volkes in der Politik der römischen

0 Republik. 1995. VII, 141 S., kt. 6860– 97. Valerie M.Warrior: The Initiation of the Second Macedionian War. An Explication of 8 6853– Livy Book 31. 1996. 118 S., kt. 98.Raimund Friedl: DerKonkubinat imkaiserzeitlichen Rom. VonAugustus bis Septimius 6 Severus. 1996. 417 S., kt. 6871–

99.Christopher

Tuplin: Achaemenid Studies. 1 1996. 226 S., kt. 6901– 100.Marlis Weinmann-Walser (Hg.): Historische Interpretationen. Gerold Walser zum75.Geburtstag dargebracht

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5 kt. 6832– 102. Julia Heskel: The North Aegean Wars, 371– 8 6917– 360 B.C. 1997. 186 S., kt. 103. Lukas Thommen: Lakedaimonion Politeia.

Die Entstehung der spartanischen Verfassung. 1996. 170 S, kt. 6 6918– 104.Luisa Prandi: Fortuna e realtà dell’opera di Clitarco. 1996. 203 S., kt. 6947-X 105.Jerzy Linderski, Ed.: Imperium sine fine: T. Robert S. Broughton and the Roman Re8 public. 1996. X, 234 S. u. 1 Taf., kt. 6948–

106.Karl Christ: Griechische Geschichte und Wissenschaftsgeschichte. 1996. 238 S. m.7 1 6915– Taf., kt. 107.Eric. W.Robinson: TheFirst Democracies: Early Popular Government Outside Athens.

8 6951– 1997. 144 S., kt. 108.Mogens Herman Hansen / Kurt Raaflaub, Eds.: More Studies

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0 6969– Polis. 1996. 196 S., kt. (zugleich: Papers fromtheCopenhagen Polis; Centre, Vol. 3)

LENE RUBINSTEIN LITIGATION ANDCOOPERATION

HISTORIA ZEITSCHRIFT FÜR ALTE GESCHICHTE REVUE D’HISTOIRE · RIVISTA ANCIENNE J OURNAL OF ANCIENT HISTORY

·

DI STORIA ANTICA

·

EINZELSCHRIFTEN HERAUSGEGEBEN VON MORTIMER CHAMBERS / LOS ANGELES HEINZ HEINEN / TRIER FRANÇOIS PASCHOUD / GENEVE HILDEGARD · TEMPORINI / TÜBINGEN GEROLD WALSER / BASEL

HEFT 147

FRANZ STEINER VERLAG STUTTGART

2000

LENE RUBINSTEIN

LITIGATION AND COOPERATION

SUPPORTING SPEAKERS IN THE COURTS OF CLASSICAL ATHENS

FRANZ STEINER VERLAG STUTTGART

2000

CIP-Einheitsaufnahme DieDeutsche Bibliothek – Rubinstein, Lene: Litigation andcooperation: supporting speakers in the courts of classical Athens / Lene Rubinstein. –Stuttgart: Steiner, 2000 (Historia: Einzelschriften; H. 147) 07757-X 515– ISBN 3–

ISO 9706

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ToPaul andDorothy and their families

Seht ihr denMond dort stehen? – Er ist nurhalb zusehen, Undist doch rund undschön! So sind wohlmanche Sachen,

Die wirgetrost belachen, Weil unsre Augen sie nicht sehn.

1815 Matthias Claudius 1740–

Table

of Contents 9

Preface Chapter

1: Introduction

13

Chapter

2: Synêgoroi in the dikastêria: the evidence

24

1. The synêgoriai

25

2. Legal regulations

41

3. Synêgoria: the exception or the rule?

58

4. Synêgoroi in private

65

actions

5. Witnesses andsynêgoroi

70

3: Sharing risks

76

1. Joint defence a. Public actions b. Private actions

78 78 80

2. Joint prosecution a. Private actions

87 87 91

Chapter

b. Public actions c. Public actions initiated through the boulê andthe Assembly Chapter

4: Therôles of Athenian synêgoroi

1. Vicarious Voices? Synêgoriai

2. Synkatêgoroi inpublic

delivered

123

inprivate

5: Synêgoria ina democratic

actions

128

131

actions

3. Defence teams inpublic actions 4. Team-based litigation andthesimple agôn model Chapter

111

context

148 172

185

1. Hoiboulomenoi

186

2. Straw men,deserters, andsaboteurs 3. Transferable charis 4. Conclusion

198 212

232

8

Table of Contents

Appendix: Catalogue

of team-based prosecutions

234

Bibliography

245

Tables

257

Indices

263 263 273 279

1. General index 2. Index of names 3. Index of sources

Preface This book began life in Copenhagen ona grey afternoon in March 1994, as I was working on the ambiguous Athenian attitudes to litigation in general andon the Athenians’love-hate relationship with their volunteer public prosecutors (hoi boulomenoi) in particular. Onthat dayI hadjust finished mysurvey of the twenty-eight surviving forensic speeches delivered byprosecutors inpublic actions, whenI realized that a good number of attested hoiboulomenoi were notwhat they seemed to be, orat least notwhatI hadthought they were. Boulomenoi (volunteers) they certainly were; but more than half (at least fifteen) of the prosecutors whodelivered the speeches in ourcorpus were volunteering as speakers in public actions initiated by other citizens. These prosecutors weresynêgoroi, literally ‘with-speakers’, andmost oftheir speeches were written assupplementary contributions tothecases presented by the main prosecutors (hoi grapsamenoi) andsometimes also by yet more synêgoroi who spoke on their side. This observation initially called for a reinterpretation of all the prosecution speeches in ourcorpus of forensic oratory, including thespeeches delivered byhoi grapsamenoi, because of the possibility that any given speech may not have presented theentire case oftheprosecution, butonlypartofit. It soonbecame clear that the use of supporting speakers wasneither rare nor largely restricted to public actions: once I began to look systematically forsynêgoroi they turned upnearly everywhere, although their appearance seemed to have been less frequent in private actions than inpublic ones. Eventually I decided to let myoriginal project rest for a while inorder to concentrate on the practice of synêgoria, which has received only scant attention in modern works on Athenian law, in spite of the fact that the use of synêgoroi has been widely recognized by modern scholars. As work progressed I became convinced thatthis lackof attention wasentirely undeserved, andthat thecontributions bysupporting speakers inprivate aswell aspublic actions were crucial forourgeneral understanding of Athenian court practice andthe broader social andpolitical context of litigation in the fourth century. Manyof theideological tensions surrounding litigation that I hadobserved during work on my original project could be at least partially explained if Athenian public actions were interpreted as team-based contests. Chapter 5 of the present workwill discuss theimplications of team-based litigation forourreconstruction of howthe Athenian courts worked in practice andfor ourinterpretation of the ideological tensions that were generated bylitigation. It is myhope that thereader will agree atleast withmyassessment oftheimportance ofthese synêgoroi, andthatthis monograph devoted tothemmayalso fill a gaphitherto left openinmodern scholarship on Athenian legal history.

10

Preface

Themanuscript in its present form wascompleted during thesummer of 1999, and I regret not having been able to take more recent scholarship into account, especially S. Johnstone’s newbook Disputes andDemocracy: The Consequences of Litigation inAncient Athens (Austin: University of Texas Press, 1999). Some of his conclusions are very similar to mine; but we arrive at them by very different routes. David Whitehead kindly letmereadthepenultimate draft of hisforthcoming commentary onthespeeches of Hypereides, andI havebenefitted enormously from his work andfrom ourdiscussions of thetexts. Over the past six years mydebts to friends andcolleagues have accumulated, andthe number of creditors hasrisen steadily. First, I should like to thank mycolleagues at the Department of Classics at Royal Holloway. Their support andteam spirit have created a working environment that hasanatmosphere second to none. I amparticularly grateful toSusanna Morton Braund, Chris Carey, andRosalind Thomas, all of whom have read andcommented on individual chapters. I also owea considerable debt to myBA andMAstudents whohave attended thecourse Greek Lawand Lawcourts in 1996/7, 1997/8 and 1999/2000. Their intelligent questions andlively tutorial discussions have frequently mademeseeproblems ina newlight. Next, the following scholars have all read the manuscript in its entirety and provided mewith invaluable comments andcriticism: M.Chambers, J.A. Crook, P. Flensted-Jensen, M.Golden, M.H. Hansen, E.M. Harris, T. Heine Nielsen, A.Johnston, D. Konstan, D.M. MacDowell, P.C. Millett, P.J. Rhodes, S. Usher, and D. Whitehead. A.C. Scafuro and G. Thür have both read parts of the work andmade suggestions for which I amdeeply grateful. I thank themall. They have drawn my attention to numerous mistakes andinadequacies, which I haveattempted tocorrect to the best of myabilities. Anyerrors that remain are of course entirely myown responsibility. My mother, Ulla Rubinstein, has patiently endured endless interrogation on Danish court practice andadministration ofjustice. Shehasgenerously letmedraw onhernearly forty years of experience as ajudge intheDanish courts, andshehas always beenready toprovide mewithrelevant literature. Shehasalso doneherbest toprevent mefrommaking outrageously ill-informed claims about modern administration of justice. If she hasnotalways succeeded inprotecting mefrom myown ignorance, I alone amtoblame. I also thank myfather andmybrother forputting up withusandourshared obsession with law, which hasoften threatened todominate theconversation whenever thefour of ushave beentogether. I amvery grateful to theCarlsberg Foundation fortheir generous financial support of the first stages of this project, and to the editors of Historia Einzelschriften for their decision to publish mymanuscript. Mygreatest debtof all is tomyteacher andfriend PaulCartledge. Overthepast tenyears hehasbeen a constant source of inspiration andconstructive criticism. No one could wish for a more acute reader or more eloquent devil’s advocate. This piece of work has been deeply influenced by him; andalthough there are many points over which wedisagree, suchdisagreement hasalways beenfunandintellectually stimulating. I very much hope that he feels the same way.

11

Preface

WhenI first arrived inBritain nearly tenyears ago, Paul Cartledge andDorothy Thompson, along with their families, generously opened their homes to me; and their friendship andwarmth have sustained meover this long period. I owethem more than I canpossibly express in words. I hope that they will accept thededication of this book as a small token of my feelings. Staines March 2000

Chapter

1: Introduction

It has long been recognized that Athens knewnoprofession comparable to that of themodern lawyer. A modern lawyer will undertake to act andspeak onbehalf of other people incourt, solely onthegrounds thathecanoffer hisclients theservice of legal expertise that they themselves donot possess. The relationship between the modern lawyer andhis clients is normally a purely commercial one: the lawyer offers hisclients thebenefit of hisformal legal training andhisexperience asa legal practitioner in return for pay. That type of commercial relationship wasnotonly frowned upon by the Athenians, it wasalso illegal when it took place in the context of the democratic courts.1 Yet the banonpaid support in thecourtroom didnotmean that Athenian litigants hadto fight their legal battles in isolation, northat they hadto plead their legal cases alone. A litigant could obtain support at all stages of thelegal procedure in which hewasinvolved, including thefinal stage whenhiscase waspresented tothe panel of judges in the dikastêrion. That Athenians cooperated before andduring litigation, andthat many trials were in reality launched asjoint ventures are notnewobservations. Over the last three decades muchimportant scholarship hasbeenundertaken thatthrows light on the way in which Athenian litigants drew onthe support of friends andkin as participants during pre-trial procedures suchastheanakrisis andarbitration, andlater as witnesses during the actual hearing in court.2 But while it is readily accepted that the Athenians collaborated outofcourt inthepreparatory stages leading uptotheactual courtroom battle, andthat thelitigant’s supporters would confirm their willingness to back him through their appearance as witnesses on his bêma during the proceedings, it is commonly assumed that themain rhetorical confrontation incourt, the ‘battle of speeches’, would normally be fought out by only two opposing litigants who were clearly defined as protagonists in the legal drama. However, the corpus of forensic oratory that has survived from classical Athens suggests otherwise. As will be argued in Chapter 2 of the present work, about a third of these speeches were in fact written to be delivered by people whowere not the main parties inthelegal actions inwhich theywereinvolved, atleast notinformal terms. These speeches, along with the persons whodelivered them, will be themain theme running through this book. Myproposition is that thecomplexity of Athenian litigation cannot be fully appreciated unless the importance of these supporting speakers, synêgoroi, is taken into account. Onlyif it is acknowledged thattheywere significant figures in the Athenian legal process will it be possible to arrive at a satisfactory reconstruction of Athenian court strategies.

1 2

[Dem.] 46.26. Onthis law, see thediscussion inChapter 2: 2. e.g. Humphreys (1985) and(1986), Todd(1990a), Hall (1995).

14

Chapter

1: Introduction

Although it is generally recognized that Athenian litigants sometimes received assistance fromsupporting speakers incourt, thesynêgoros hasoccupied a marginal position in modern scholarship onAthenian lawandlitigation. Onereason for the general neglect of the synêgoros as a participant in Athenian legal proceedings is undoubtedly that the phenomenon of synêgoria hasbeen discussed first andforemost in thecontext of a debate concerning thetypes of expert assistance onwhich anAthenian litigant could drawwhenhewasfighting hisbattles incourt. Although a fewscholars, most notably Bonner (1927), regarded thesynêgoros asaprecursor of themodern professional advocate, thatideawassoonabandoned in modern scholarship, andrightly so.If ourmainconcern is tosearch foranAthenian parallel to the modern professional practitioner who makes a living from his legal expertise, the Athenian logographer, whowrote speeches to be delivered by the litigants themselves, is a farbetter candidate. This wasone of the main points made by Lavency in his book Aspects de la logographie judiciaire attique, which appeared in 1964, and which contains the mostcomprehensive discussion of synêgoroi todate. Lavency observed that a large number of speeches in ourcorpus of forensic oratory were delivered notby main litigants butby their supporters; andthat even such supporters would sometimes drawontheexpertise of logographers. Notsurprisingly, this ledLavency toconsiderthequestion whythepersons whohadwritten thespeeches, i.e. thelogographers, as a rule didnot deliver the speeches themselves.3 The persons whoengaged in logography clearly were inpossession of both the legal andrhetorical skills required forsuccessful court-room performance, andyettheywrote mostoftheir speeches to beperformed byothers. Lavency’s answer to that question wasthat theAthenians 76).4 insisted that a litigant pleaded his own case, at least in principle (1964: 69– 89), a litigant wasallowed toreceive support from According toLavency (1964: 79– other speakers; in fact, such support wasvery frequently given andit wasreadily accepted bytheAthenians, butwithoneimportant proviso. Suchspeakers would be tolerated only if they appeared literally as his ‘with-speakers’, the basic meaning of the word synêgoros, rather than as his legal representatives. According to Lavency, thepersons whospoke with a litigant would be required to voice their support of himas anindividual, and, unlike modern lawyers, they could not limit their contribution to arguments concerning only the merits of his case. Andhere Lavency represents a general trend inmodern scholarship: inso far astheexistence ofsynêgoroi hasbeenrecognized, it hasoften beenheldthat, under normal circumstances, their rôle wascomparable tothat of a modern character wit-

3

4

31) identified eight speeches that were purportedly written anddelivered by Lavency (1964: 26– the logographer himself as a synêgoros: Dem. 18, 20, 25, [26], 29; Hyp. 1 Dem. (Hyp. 5 in the Budéedition), Hyp.3 Eux., andHyp.4 Phil. (Hyp. 1intheBudéedition). Ofthese, however, he dismissed Dem.25 and29 as forgeries. These speeches will bediscussed inChapter 2: 1. It was, however, noted both by Lipsius (1905–15: 905) andLavency (1964: 114–117) that the evidence foranAthenian legal requirement thata litigant presented hisowncase incourt is very slender indeed. Theassumption rests entirely onQuintilian Institutio Oratoria 2.15.30. Cf. Harrison (1971: 156) wholeaves the question open in his main text, butsides with Lipsius and 157 n.7. Lavency onpp. 156–

1. Introduction

15

ness.5 Their main function wastoactasthepartisans of themainlitigant andtotake (bêma) as an overt demonstration of their solidarity with him. Lavency regarded the requirement that such ‘with-speakers’ always declare their deep personal engagement in the main litigant andhis case as a significant impediment to thedevelopment of advocacy as a profession comparable to that of a 95). modern lawyer (1964: 89– A point of view similar to that of Lavency wasstated forcefully byWolff (1964: 10), who followed up this proposition in his booklet Demosthenes als Advokat (1968). Wolff, too, sawtheAthenian insistence that a litigant would have to plead his owncase as an insurmountable obstacle to thedevelopment of real legal advocacy (1968: 11). In sofaras theAthenians knewa craft ortrade (Wolff deliberately avoided theword‘profession’) comparable tothatofthemodern lawyer, logography rather than advocacy provides the best parallel.6 Inonerespect, however, Wolff wentevenfurther thanLavency: thesynêgoros as a ‘with-speaker’ wasallowed no place in his ownright in Wolff’s discussion. Wolff noted (1968: 11– 12) that theAthenians sometimes permitted another citizen to speak ona litigant’s behalf as a Fürsprecher’, that is as a true legal representa17). According to tive, a Vicarious Voice to borrow a‘term fromCrook (1995: 13– Wolff, suchpermission wasgiven occasionally, butonly asa concession toa fundamental principle that the Athenian litigant hadto plead his case by himself: ‘for the Athenian legal system ruled outnotonlyformal legal representation, as domany archaic procedural arrangements; in addition it insisted ontheprinciple that every litigant hadto conduct his owncase personally, also as a speaker’(mytranslation, Wolff’s italics).7 That synêgoroi as ‘with-speakers’ of the type discussed by Lavency did not figure in Wolff’s discussion is understandable: after all, Wolff’s main concern was withlogography astherealparallel tomodern advocacy; andthefactthattheAthenians seemto have preferred theVicarious PentotheVicarious Voice wasof course

a stand on his platform

5

6

7

Dorjahn (1937: 343), Lavency (1964: 85), Latte (1968: 282). Forthesuggestion that synêgoroi would sometimes replace witnesses in public actions see Todd (1990a: 31). Harrison (1971: 158) compared thesynêgoros to a ‘witness of good character’. Humphreys (1985) treats synêgoroi andwitnesses together as serving moreorless thesamepurpose. Sheclaims that ‘normally synêgoroi only appeared briefly to praise the litigant’s character.’(1985: 318). Wolff stated his reasons for notapplying the word ‘profession’ (‘Berufsstand’) to the logographer’s trade (‘Gewerbe’) as follows: ‘wecannot speak of a real profession, andespecially nota higher profession inthemodern sense oftheword. Theactivity inquestion wasopentoall anddidnotrequire anyqualifications, exams orcertification. It wasthelivelihood of manya man; others practised it occasionally, as hasalready been noted, andnotfor the sake of cool cash’(1968: 10). Theterms ‘profession’and‘professional’areinanycase highly problematic 46). The term when applied to the ancient world. See e.g. thediscussion in Crook (1995: 41– ‘professional’inthecombined sense of ‘making a living from’and‘expert’wasusedfreely by Bonner (1927) andLofberg (1917), whoboth worked onthe teleological assumption that the Athenian practice oflitigation musthavedeveloped towards thepractices prevailing inAmerica intheearly 20th century. ‘Das attische Recht schloß nämlich nicht nur, wie viele archaische Ordnungen, dieformale Prozeßvertretung aus, sondern verlangte darüber hinaus grundsätzlich, daßjeder Litigant seine Sache auch rednerisch ineigener Person verfocht.’

16

Chapter

1: Introduction

of central

importance to this type of investigation. True legal representation in the sense thatthesynêgoros would takeovertheentire pleading, while themainlitigant played only a purely perfunctory rhetorical part in the proceedings, does indeed seemtohave beenrare, although it wasfarfrom asrare asWolff’s statement might

lead us to believe. Thefact that thesynêgoros hasbeenregarded (and later rejected) as a potential

candidate in the modern search for the Athenian ‘advocate’ is undoubtedly the reason whyonly those speeches that were delivered bysynêgoroi intheir capacity as genuine Vicarious Voices have received full attention in modern scholarship. A celebrated example of the synêgoros as a Vicarious Voice is the speech that Demosthenes wrote forPhormion tobedelivered inhisparagraphê against Apollodoros. The speech wasdelivered notby Phormion himself butby one (or perhaps several) of hisfriends (Dem. 36).8 Another equally famous example is Dem. 18, a speech written anddelivered byDemosthenes personally indefence of Ktesiphon in an action for illegal decree proposal (graphê paranomôn) brought by Aischines. [Dem.] 59 is a further speech that hasregularly beenrecognized anddiscussed as a synêgoria delivered by a synêgoros whoacted as a Vicarious Voice. It is hardly surprising that these speeches in particular should have contributed to theimpression that thesynêgoros was, under normal circumstances, a marginal figure in Athenian litigation, except in so far as he maybe regarded as a type of ‘super-witness’, who, unlike the conventional fourth-century witness, would address thecourt inwords of hisown.Forasfarasthese speeches areconcerned, the intervention bythesynêgoroi asVicarious Voices maybeexplained withreference totheapparently exceptional circumstances inwhich themainlitigants found them-

selves. Phormion wasanex-slave who, like hisformer master Pasion, hadbeen given hisfreedom, andwhowaslater madeanAthenian citizen because of hisexceptionally lavish contributions to the coffers of the Athenian polis.9 Because of Phormion’s unusually humble background, andbecause he wasnota native speaker of Greek, the dikastai mayhave allowed his friends to plead on his behalf as anexceptional measure. As for Dem. 18, Ktesiphon was prosecuted because of a decree that he had proposed inhonour of Demosthenes toreward thelatter forhisconduct inAthenian public life. Thecontext oftheaction, andindeed thecontents ofbothAischines’and Demosthenes’speeches, suggest thatAischines’prosecution would havebeenwidely regarded as anattack onDemosthenes, andthat Ktesiphon himself waslittle more than a pawnintheir game. SowhenDemosthenes rose todeliver hisspeech, which was nominally in defence of Ktesiphon, it mayhave been recognized by everybody present incourt that Demosthenes wasthe ‘true’defendant, andthat heshould therefore be allowed to speak inhisowndefence. If weturn to [Dem.] 59, thereasons for synegorial intervention donotpresent themselves asreadily, buttheycanstill befound. Apollodoros, whowasa sonof the

8 9

Forthepossibility thatmorethanonespeaker delivered thetext that survives, seeChapter 2: 1. 432) and, fora moredetailed discussion, Trevett (1992). See Davies (1971: 431–

1.Introduction

17

ex-slave Pasion mentioned above, wasengaged ina public action (a graphê xenias) in which heattacked a non-Athenian woman, Neaira, forcohabiting withanAtheniancitizen as hiswife. Theprosecution wasbased ontheallegation that Neaira and her citizen ‘husband’ Stephanos were passing off their children as Athenian citizens. ThatApollodoros, whohimself wasnota bornAthenian, mayhave preferred to launch the action in the name of his brother-in-law Theomnestos, whose citizen pedigree wasunassailable, is notall thatsurprising. Yetthewhole case asrepresented in [Dem.] 59 has its origins in a hostile relationship between Apollodoros and Stephanos. Thejudges mayfor that reason have accepted that Apollodoros, as a de facto party to the case, fought the action on behalf of his brother-in-law, who was the main litigant only in name. Scholars have proposed other reasons for Apollodoros’appearance as Theomnestos’ Vicarious Voice; andthe problem will be discussed in more detail in Chapters 3 and4. Here it must suffice to saythat thecase can be regarded as exceptional with somejustification. Sothesynêgoros asrepresented inmodern scholarship could assume oneoftwo functions, each of which would be at opposite ends of a scale, as it were. Hecould be either a ‘super-witness’ whose rôle in the legal proceedings amounted to a display of his solidarity with the main litigant. The very appearance of the synêgoros on the main litigant’s bêma in this capacity would, as a rule, be perceived as more important than theactual verbal arguments that hemight contribute. Or,attheother extreme, hecould act as the Vicarious Voice of themainlitigant; butonly if it was universally agreed that the main litigant could not be expected to plead his case adequately because of exceptional circumstances. What the conventional discussions of synêgoroi have not normally taken into account is the possibility that the rhetorical performance incourt could begenuinely shared between several individuals. Each of these speakers would have contributed less than the entire case, but considerably more than just a token couple of words as a demonstration of their support forthe main litigant. Hyp. 3 OnBehalf of Euxenippos is anexample of this. Hypereides, forhispart, emphasizes the plight of the defendant Euxenippos, allegedly anoldmanwithout political experience whohadinadvertently become a target ina heavyweight public action. It cannot be ruled out that the judges mayhave been prepared to accept Hypereides’ intervention as a synêgoros because of theexceptional circumstances of thecase. What is often overlooked, however, is that Hypereides wasin fact not acting asa true Vicarious Voice inthis action. Hisspeech, which hasbeenpreserved in its entirety, was but one contribution out of several delivered in Euxenippos’ defence. In 3.15 he refers to a previous synêgoros whohas already addressed the court, andit is clear that Hypereides’ owncontribution wasintended as a supplementtoother synêgoriai andperhaps also toa defence speech delivered byEuxenippos himself. Many of the preserved synêgoriai that were delivered in public actions resemble Hyp. 3: they were contributions to a team effort. The speaker who delivered a synêgoria of this type did not define himself as the exclusive mouthpiece through which the main litigant’s case wasvoiced, butnordidheconfine his contribution to a mere display of his willingness to back the main litigant as an individual.

18

Chapter

1: Introduction

This leaves room for yet another type of synêgoros: a ‘with-speaker’ whocould join intheproceedings because hehadapersonal orpolitical interest inthecase, and whose rôle inthetrial would notnecessarily beperceived asa token of hispersonal solidarity with themain litigant. Rather, such a speaker might represent himself as involved in the dispute in his ownright, butwithout necessarily having to represent the legal dispute as his’action in the waythat Demosthenes redefined thegraphê paranomôn from being an action against Ktesiphon into an action brought by ‘

Aischines against himself. A synêgoros of this third type could be as much a w ith‘ party’as a ‘with-speaker’, andthe demonstration that such rhetorical cooperation wasa common andwidespread phenomenon in the Athenian courts will be animportant concern of the present work. Theexistence of truly joint litigation at Athens mayforce us to reconsider what weactually mean when stating that ‘an Athenian litigant wasexpected to plead hisowncase’. The assumption that an Athenian litigant wasexpected not only to plead his owncase but also to plead it alone, at least in principle, has been fundamental to most recent scholarship onAthenian legal proceedings. It is widely assumed that it wasa characteristic of the ideal democratic citizen that hewascapable of pleading his owncase in court, be it as a prosecutor or as a defendant. The connection between personal appearance incourt andtherights andduties of Athenian citizenship wasmade by Egger as early as the middle of the nineteenth century (1862b: 364–

365).

78) went even further in regarding the pleading of one’s Lavency (1964: 77– owncase as a citizen’s privilege. Hebased his view onthe assumption that metics hadto be represented incourt bytheir prostatai, anassumption that hassince been widely questioned.10 But other scholars, for example Todd, who have accepted that the Athenian metic had direct access to the courts in at least some types of legal action, have still agreed with their predecessors inlinking personal appearance and pleading in court with Athenian civic identity: ‘this was an intrinsic part of the democratic theory of citizenship: to admit that youwere not capable of defending your own interests in the law courts was to admit that you did not fully possess the capacity of a citizen’ (Todd [1993: 94]). Theclaim that a citizen wasexpected andrequired to fight hisownlegal battles is central tothecurrent reconstruction oftheAthenian legal agônes as ‘opentrials of strength’between two(usually élite) protagonists, notunlike a wrestling match where therole of theaudience, thejudges, wastochoose thewinner. D.Cohen (1992:106) suggests that ‘if the process is seen as an agôn, a competition for honour in Bourdieu’s sense, then what one is as a mananda citizen is precisely what is at stake.’ Cohen’s interpretation

of Athenian trials forms part of a general

trend

in mod-

ern scholarship, which focuses overwhelmingly on the courts as a space in which individual members of the Athenian élite competed for honour andprestige. The 10

e.g. Whitehead (1977: 91– 96), MacDowell (1978: 78), Hansen (1991: 118), Todd (1993: 198). Rhodes (1993: 655) takes a compromise stand whenassuming that normally metics could not 67). prosecute in graphai (but see, e.g., Dem. 21.175 and[59].66–

1. Introduction

19

contest between prosecutor anddefendant would havebeenmonitored bythedêmos which also decided the outcome of each encounter.11 Another characteristic of this recent trend is thetendency to playdownthedifferences between private andpublic actions. The fact that Athens hadnoinstitution comparable to a modern impersonal prosecution agency, andthat the initiative andrisks connected withordinary public actions rested with individual citizens hasoccasioned the claim that public actions didnotdiffer fundamentally from private suits as far as thecourt hearing wasconcerned: both types were fought as intensely personal agônes between individual members of the élite. Onthis reconstruction, the maindifference between public andprivate actions is that a public action mayrepresent a more advanced stage in an escalating feud between twolitigants, since inpublic actions thestakes would be higher both for the prosecutor and for the defendant. A citizen who volunteered as a public prosecutor faced a personal risk of being fined a thousand drachmai inaddition to partial atimia if he failed to gain 20% of the votes cast by the judges. When a citizen decided to take on that risk, that was in itself a display of strength.12 For the defendant the stakes would be raised even higher: where defeat in a private action would mean only that he would be liable to paycompensation to his opponent, or, at the very worst, face atimia as a state debtor, defeat in a public action could meanexecution, confiscation of property, denial of burial in Attica, perpetual andhereditary atimia or fines so high that he might have no realistic hope of ever paying off his debt to the state. According to the current modern reconstruction, Athenian legal actions, public as well as private, canbe characterized as ‘zero-sum games’in which the prize for which the twoopponents competed wasrecognition of status or honour (timê): in this game the successful litigant could addto his ownprestige the prestige lost by hisunsuccessful opponent, andthemore theloser stood to lose, themore there was to be gained by the victor. If this model is to work, it is obviously essential that the person whoinitiated a legal action would always be perceived as a main party to the case, no matter whether the procedure was, in formal terms, a private suit (dikê) or a public action (graphê). Andmanymodern scholars doindeed maintain that this wasso.Although it would be possible for a prosecutor in a public action to claim that he was acting notonly inorder to further hisownpersonal aims butalso to further theinterests of the community as a whole, the action would remain his action because of the personal risk that he stood to incur if hefailed to gain the required share of the votes. Thus it might still be argued that the fundamental principle that a litigant was expected to plead ‘his case’onhis ownapplied as much in graphai as it didin dikai 27]). (see most recently Christ [1998: 26–

11 See e.g. Garner (1987), Ober(1989) and(1994), Cartledge (1990), Wilson (1991), Christ (1998: 37). Public trials were recognized byCalhoun (1913: 104) as ‘tests of strength’. Thejustifi35– cation of interpreting theAthenian administration ofjustice onthebasis of a simple agôn model 183). hasbeenquestioned byCarey (1994a: 182– 12 Asargued already byPaoli (1930: 252).

20

Chapter

1: Introduction

The agôn-model is also at the heart of Ober’s Mass and Elite. It was precisely the agôn that wasone of the mechanisms by which the dêmos maintained control andshaped thecollective ideology of Athens, andit wasthrough theagôn that élite members of thecommunity would demonstrate their allegiance to democratic community values. The line of comparison drawn by Ober between the courts andthe ekklêsia is obvious: in both fora the dêmos responded by thorybos and vote to the performance of individual élite members of the community; the dêmos chose the winner of each contest who, inturn, hadto demonstrate hiswillingness toconform to thevalues andexpectations of hisdemocratic audience.13

Ober’s work is part of a trend that represents a radical departure from previous reconstructions of fourth-century political life as centred on political parties or ‘clubs’. Many modern scholars have strongly opposed the idea that political parties or ‘clubs’ (hetaireiai) dominated political and legal activities in fourth-century Athens, an idea of which Calhoun (1913) was one of the most significant early proponents. Ingeneral, later scholars maybeprepared to accept thevalidity of Calhoun’s model for fifth-century Athens, at least up to a point; but it is now widely maintained that, in fourth-century Athenian political life, individuals rather than organized parties were what mattered.14 While it is of course accepted that ties between politically active citizens were forged, it is nowmaintained thatsuchpolitical alliances were ephemeral. Allegiance could (at least theoretically) be shifted from one dayto the next. Ober (1989: 121) notes that ‘[a] politician commonly called upon friendly rhêtores as synêgoroi whenhe wasinvolved in a public trial’as one wayin which members of the Athenian élite could anddidcooperate, butheurges that ‘wemustresist thetendency tomaketoomuchof these relationships’. Helater asserts that ‘[w]hen he addressed the Assembly or court, the orator stood alone, before the people’(1989: 123). Aslongasit wasassumed thatclearly defined andorganized political groups or p arties’played a crucial part inpublic life, collaboration byspeakers intheAthen‘iandikastêria, especially inlegal actions witha significant political dimension, was accepted as anessential feature of Athenian litigation. However, thecurrent reconstruction of Athenian politics in general as primarily centred onindividuals leaves little roomforthesynêgoros except inhiscapacity asa ‘super-witness’or,inexceptional circumstances, in his capacity as a Vicarious Voice. The participation by synêgoroi in their capacity as ‘super-witnesses’ is not in itself incompatible with Ober’s statement. A synêgoros of this type who uttered only a fewwords, butwhowould demonstrate to theaudience that the litigant enjoyed the support of an important section of the community, would addto the latter’s display of personal prestige. Such synêgoroi would not have prevented the litigant from retaining his position as protagonist.15 Likewise, inhiscapacity asa Vicarious Voice thesynêgoros canalso beaccommodated in the current agonistic model, provided that he can be shown always to 329). 13 Forobjections to Ober’s model, see e.g. Kallet-Marx (1994: 324– 287), 125), Hansen (1991: 281– 86, 121– 51), Sinclair (1988), Ober(1990: 84– 14 Dover (1968: 50–

15

578). 17), Rhodes (CAH VI2 577– followed by Harding (1994: 16– 7). Humphreys (1985: 336–

1. Introduction

21

have pleaded as a true legal representative of the main litigant. It will have to be assumed that such a synêgoros would have to concentrate exclusively on the main litigant’s case while effectively suppressing his ownpersonal voice andindividual profile. Furthermore, the type of synêgoros whodefined himself as the defacto main party tothecase is alsocompatible withthecurrent reconstruction of Athenian trials asagônes fought between twoopposing individuals. To illustrate this witha classic example: whenDemosthenes acted assynêgoros indefence ofTimarchos andKtesiphon in the public actions brought by Aischines it may have been recognized by all that Demosthenes wasthereal defendant inboth trials. Indeed, thearguments presented in Dem. 18maybe taken to suggest that if thedefendants were acquitted the winner would be Demosthenes, rather than the litigants on whose behalf he was pleading.16 Thus, these particular trials are not held to cause problems for the agôn model. It is still possible to regard the trials as one-to-one competitions for honour between twodefacto protagonists, Aischines andDemosthenes. Allegedly, thetwo defendants were but pawns in a larger political game, andDemosthenes’ role as synêgoros for the twodefendants is seen as crucial. On the other hand, the modern interpretation of Athenian trials as zero-sum games between individual members of the élite cannot be maintained if it can be shown that teams of pleaders could engage inlitigation together onanequal footing, also inrhetorical terms, without necessarily defining onemember of theteamasthe legal protagonist. This kindof teamwork iscommonly supposed tohaveoperated in one particular type of Athenian public prosecution, the apophasis. The apophasis wasprobably introduced in the middle of the fourth century. The Areiopagos could becommissioned bythe Assembly to investigate suspected crimes, andthecouncil wasalso authorized to carry outsuch investigations onits owninitiative. In either case, its report would subsequently be submitted to the Assembly. If the Assembly decided to follow upthecase bya court hearing, then a teamof prosecutors would be elected to plead thecase in a dikastêrion. In that type of procedure, the Areiopagos council could in a sense be regarded as the initiator of the legal action, and thecitizens whowereelected bytheAssembly toplead asprosecutors insuchapophaseis thus were notperceived as the supporters of anyparticular individual, but rather as the voices of the community as a whole or, alternatively, as the voices of

thecouncil (Dein. 1.48).

However, apophaseis arenormally regarded asexceptional, precisely because, unlike regular public actions (graphai), they were not launched in the name of a single individual citizen. Asmentioned above, a fundamental characteristic of ordinary Athenian public actions wasthefact that they hadtobe initiated byindividual citizens whoas such took personal legal responsibility for the actions; theapophasis, by contrast, was the responsibility of the Areiopagos andthe Assembly collectively, andthe same probably applied, mutatis mutandis, to eisangeliai to the boulê. Animportant objective of this book is to call for a modification of the view of theapophasis andsimilar procedures asexceptional, andto argue that it wasnotat

10 104), Wankel (1976: 9– 16 Lipsius (1905–15: 907), Blass (1910: 7–11), Calhoun (1913: 103– 38), MacDowell (1978: 251), Ober (1989:121), Carlier (1990: 249), Usher (1993: 16). and37–

22

Chapter

1: Introduction

all unusual that teams of prosecutors would undertake to plead together in ordinary graphai, at least suchgraphai asconcerned crimes where thecommunity as a whole wasperceived as a victim. While supporting prosecutors were in a formal sense the synêgoroi of the citizen whohadinitiated the action, such speakers seem to have preferred to represent themselves as real katêgoroi in their ownright rather than as partisans of the initiator (hograpsamenos), andin that respect there seems to have been little difference between their rôle inthetrial andtherôle of those citizens who hadbeen elected to plead in public actions initiated before the Assembly or the boulê. Theobservation thatteam-based public prosecution oftheordinary graphê type wasa widespread phenomenon wasmade already by Meier andSchömann (1824: 910) and Harrison (1971: 160), 710) and repeated e.g. by Lipsius (1905–15: 909– butit haslargely beenignored inmorerecent scholarship onAthenian litigation in public actions. I shall take that observation further andargue that the teams who pleaded insuchpublic actions constituted informal parallels to thecollegiate nature of most of theattested Athenian boards of officials (archai). The suggestion that a principle of collegiality operated in Athenian public actions of the graphê type as well as in extraordinary procedures such as apophaseis will serve to narrow the gapbetween ordinary andextraordinary public actions, while at the same time drawing attention to the fact that there seem to have been important differences between public andprivate actions in regard to the wayin which the pleading was conducted in the court room. In the following chapters, then, the Athenian synêgoros will be the focus of attention. The claim that participation by synêgoroi was a widespread phenomenon will be substantiated in Chapter 2, which will also emphasize the difference in the frequency of attested synegorial activity between public andprivate actions. In this chapter I have attempted to produce a comprehensive survey of theevidence forthe practice inthedikastêria inthefourth century, forthree reasons. First, anyattempt to argue that a practice hitherto considered exceptional wasinfact the normincertain types of legal action mustnecessarily take into account all thesurviving forensic speeches, both those delivered by main parties andthose delivered by synêgoroi. Second, theclaim thatpractice varied between public andprivate actions rests onan admittedly very limited number of cases of either category, and it would be illadvised to limit the statistical basis even further. Andthird, it is myhope that such a survey may prove useful also to those scholars who will not agree with my interpretation of the practice or with myassessment of its significance for our general

understanding of Athenian litigation. Chapter 3 will address thequestion whether legal actions could beinitiated jointly by several individuals. Here, too, a distinction will be madebetween private and public actions, andit will be shown that the Athenian legal system wassufficiently flexible toaccommodate disputes towhich several individuals onbothsides defined themselves as mainparties, at least ona rhetorical level. Asfaras public actions are concerned, it will be concluded that, although it wasprobably a requirement that only one individual assumed legal responsibility for a public action of the ordinary graphê type, that person would not necessarily be identical with the key person or

1. Introduction

23

persons intherhetorical strategy adopted bytheprosecution teamasa whole. Moreover, the chapter will also discuss the use of elected prosecutors in public actions initiated through the boulê or the Assembly, first andforemost in relation to apophaseis andeisangeliai. Chapter 4 will consider to what extent synêgoroi defined their task differently according to the nature of the procedure in which they were involved. It will be concluded that therequirement that supporting speakers defined themselves as partisans of the main litigant applied first andforemost in private actions. In public actions, however, supporting prosecutors would, as a rule, define themselves as katêgoroi in their ownright. Such prosecutors seemto have preferred to maintain a rhetorical distance fromthemainprosecutor whohadinitiated theaction. Thecomposition of defence teams in public actions will also be discussed, andit will be argued that the rôle of synêgoroi who participated in such teams would differ considerably, depending onthenature of their relationship withthedefendant. It will be shown thatdefence synêgoroi didnotnecessarily havetoclaim thattheywerefriends or relatives of the defendant whowasreceiving their support: it waspossible also for people who defined themselves rhetorically as outsiders to contribute to the defendant’s case. Finally, Chapter 5 will discuss theimplications of team-based pleading forour reconstruction of Athenian public actions. It will be suggested that thepractice offered scope for non-élite citizens to participate actively as speakers in the type of public actions that wereperceived asaffecting thecommunity asa whole. Although wecannot gauge howoften theaverage citizen availed himself of theopportunity to participate, theoption of risk-free participation ona teammayhavelent some substance to the democratic claim that anycitizen whowished to contribute actively to the political life of his polis also had an opportunity to do so, regardless of his personal wealth andsocial standing. This will lead on to a discussion of the darker side of team-based prosecution, and it will be argued that the phenomenon of the sykophant, normally perceived as a rhetorical inversion of theideal boulomenos, canbe fully understood only inthe context of multiple prosecution. Suchprosecution teams provided opportunities for subversive litigious behaviour of a kind that has notbeen properly appreciated in previous scholarship, andin that respect the practice wasclearly a double-edged sword. Asimilar conclusion will bedrawn inregard totheuseof defence synêgoroi in public actions: while intervention bysynêgoroi ontheside of a defendant could be represented as a wayof creating a level playing field between prosecution and defence, the practice wasalso perceived as a wayin which wealthy andwell-connected citizens might beatanadvantage whencompared tothevastmajority of their fellow citizens. The Athenian attitude to supporting speakers wasclearly ambiguous, andthe practice of team-based public actions seems to have created at least as many social tensions as it resolved.

Chapter 2: Synêgoroi in the Dikastêria: the Evidence The Athenian practice of enlisting support from synêgoroi hasbeen noted in most standard works on Athenian law but never properly quantified; andthere is considerable disagreement between modern scholars as to whether synêgoroi were employed as a rule or only exceptionally. As mentioned in the introduction, Wolff (1968: 11) believed that synêgoroi were allowed only occasionally (ab undzu)on grounds of ‘fairness’ (Billigkeit). Other scholars, such as Bauman (1990: 7) and Christ (1998: 37), have agreed with Wolff in regarding the use of synêgoroi as a circumvention of therule thatevery litigant wassupposed toplead hisowncase. 282) noted thatthephenomenon waswideOntheother hand, Latte (1968: 281– spread infourth-century Athens andargued thatthepractice wasa survival fromthe archaic age when friends andrelatives hada moral duty to support each other in court.1 Hansen (1991: 194) hasclaimed that ‘inpolitical trials it wasalmost regular for both accusation anddefence to be divided between several speakers from the same group’, butwithout adducing evidence to support his (implicit) assumption that in such trials synêgoria wasthe rule rather than theexception.2 Lavency’s Aspects de la logographie judiciaire attique (Louvain 1964) contains themostdetailed study of synêgoroi available, butLavency didnotattempt to setoutinfull theevidence forhowtheAthenian useofsupporting speakers operated within the wider context of the Athenian democratic administration of justice. His main concern in his chapter on synêgoria wasto show the relationship between synêgoroi andlogographoi, andhedidnottrytoassess howwidespread thepractice of synêgoria was. Animportant part of theempirical basis for Lavency’s study of synêgoroi was hisclassification ofthesurviving forensic speeches aseither synêgoriai orasspeechesdelivered bylitigants whoweremainparties tothecases thatthey werepleading. Blass, too, paidattention totheissue inhisdiscussions of individual speeches inour corpus of forensic oratory (1887, 1892, 1893, 1898), but he did not enter into a general discussion of thephenomenon. Morerecently a list ofextant synêgoriai has beenpresented byTodd(1993: 95 n. 19)aspart of a wider discussion of thetypes of

assistance available to Athenian litigants. Thespeeches delivered bysynêgoroi forma crucial part of ourevidence forthe practice; butthere hasbeenconsiderable disagreement astowhich speeches actually belong inthat category. A reevaluation of this bodyof evidence is a sine quanon for the present study, andthus the first section of the present chapter will contain

1

2

᾽ α ο ὶδ γ ο ίmentioned inIl. 18.502: λ ρ ω Hecompares theAthenian synêgoroi with theHomeric ἀ ϕ ή π υ ν ο , ἀμ ί. γ ο ϕ ιν ἐπ ο τ ο έρ ω ισ ρ ὶςἀ μ ἀ 10, Keil (1902: Forother scholars of thesame opinion, seeMeier andSchömann (1824): 709– 248), Bonner (1905: 82), Lipsius (1905–15): 909, Calhoun (1913: 86), Busolt and Swoboda (1920– 26: 1160), Bonner andSmith (1938: 8–19), Harrison (1971: 158 n.3), Usher (1993: 16).

1. The synêgoriai

25

discussions ofeachof thespeeches thatweredelivered bysupporting speakers rather than by main litigants. Section 2 will discuss the legislation that mayhave regulated the use of synêgoroi in court; andthe informal means bywhich the Athenians mayhave controlled the practice will also be considered here. Section 3 will attempt to assess how frequent thepractice was. This discussion will bebased notonly ontheextant synêgoriai, butalso onthereferences tosynêgoroi madeinspeeches delivered bymain litigants. This evidence hasnotyetbeen theobject of systematic investigation, and together withother types ofevidence, especially theAthenian defixiones (lead ‘curse tablets’) relating to litigation, the material points to the conclusion that the use of synêgoroi in court wasa widespread phenomenon. However, it will be argued that there seems to have been a considerable difference between private andpublic actions, and that synêgoroi were not used as frequently in the former as in the latter type of procedure. Section 4 will provide anexplanation for the difference in synegorial activity between different types of legal action. Finally, in Section 5 I shall touch briefly on some of the differences between witnesses andsynêgoroi in relacourt strategy. It will be argued that the gap between these two types of supporter widened inthefourth century, andthat it is essential that wekeep these differences in mind.

tion to Athenian

1. The synêgoriai

In his monumental DieAttische Beredsamkeit, Blass classified twenty-seven of our surviving lawcourt speeches as contributions delivered by supporting speakers. However, because of thenature of theinvestigation carried outbyBlass, hewasless interested inassessing theformal position of thespeakers aseither mainlitigants or synêgoroi than indetermining whether their contributions served as main speeches (Hauptreden) or supplementary speeches (called epilogoi or deuterologiai by later rhetorical theorists whose terminology wasadopted byBlass). It was,however, perfectly possible fora synêgoros todeliver whatwasineffect a mainspeech, while the mainlitigant receiving hissupport delivered only a token contribution. While Blass wasfully aware of this important factor (asforexample inhisdiscussions ofLys. 13 [1887: 555], Dem. 18 [1893: 420] and [Dem.] 59 [1893: 536]), his emphasis on the speeches rather than the speakers is probably the reason whyhe overlooked two obvious synêgoriai (Isaios 12 and[Dem.] 43), andwhyhedidnotdiscuss in more detail theposition of the speakers of Dein. 2 andDein. 3 whospoke as members of prosecution teams elected by the Athenian Assembly.3 Blass madenoattempt to produce a systematic discussion of all extant synêgo31), whowasconcerned primarily riai in their ownright. But Lavency (1964: 26– 3

Inhisdiscussion of Dein. 2 Blass (1898: 314) focussed onthequestion whether thespeech was delivered as a main speech or as a supplementary speech. Heconcluded tentatively that the speech wasindeed a mainspeech, since itcontains noreferences toa preceding speaker. Hewas more inclined to accept Dein. 3 as a deuterologia (1898: 317) on the grounds that it does not contain a proper discussion of the actual charge brought against Philokles.

26

Chapter

2: Synêgoroi in the Dikastêria: the Evidence

with the question of what legal assistance wasavailable to Athenian litigants, be it inthe form of a script purchased from a logographer or in theform of a synêgoria, produced a very useful table in which the extant forensic speeches are arranged according to the following categories: a) speeches delivered by the main litigant himself (or his or her kyrios), b) speeches delivered by synêgoroi, c) speeches delivered by the logographer himself qua main litigant, andd) speeches delivered by the logographer quasynêgoros. Lavency’s table distinguishes further between speeches

delivered by prosecutors andthose delivered bydefendants. Lavency identified 28 synêgoriai among the forensic speeches. His figure is far higher than that arrived at 95 with note 19), who claims that, because of the Athenian by Todd (1993: 94– refusal to accept overtly professional advocacy, ‘only thirteen of ourone hundred or so surviving forensic speeches were delivered by sunêgoroi’. Only ten speeches have been classified as synêgoriai by both Lavency andTodd: Lys. 5, [20] and32, Isaios 4 and6, Dem. 18, 36, [43], [44], andHyp. 3 For Euxenippos. There is noobvious reason forthis discrepancy between Todd’s andLavency’s figures, apart fromthefact that Lavency, unlike Todd, does notdistinguish between speeches delivered by publicly elected prosecutors (Dem. 25, [26], Dein. 1, 2, 3, Hyp. 1) andthose delivered by ordinary synêgoroi. The speeches delivered by elected prosecutors are all absent from Todd’s list. They will later be treated as belongingina separate category, andinTable 1 Ihavemarked themwithan(*). Moreover, both Todd andLavency include speeches that were notdelivered by synêgoroi, while omitting others that undoubtedly were. In what follows the speeches that were demonstrably delivered by synêgoroi will be listed and discussed individually. This will be followed by a discussion of speeches that have previously been classified as synêgoriai by either Lavency or Todd, but which were delivered either by speakers whose position in the legal proceedings cannot be ascertained, or by speakers whowere probably main litigants. Theorder inwhich the speeches are presented here follows thetraditional ordering inourcorpus of forensic oratory inthehope that this mayfacilitate theuseof this collection of synêgoriai for reference. The non-specialist (or impatient) reader is advised to go straight to the concluding part of this section anduse the main part of it only forconsultation inconnection withproblems relating to specific speeches.

Speeches delivered bysupporting speakers Lys. 5 wasdelivered ina public action bya synêgoros indefence of themetic Kallias, whowasontrial for his life (5.1). The speaker wasclearly part of a larger team of defence synêgoroi, some of whomhadalready addressed the court before him.4 [Lys.] 6 was delivered in an endeixis by a synêgoros in support of the main prosecutor Kephisios ([6].42), andourspeaker wasbutoneoutof several support136). The speech has been regarded by ing prosecutors (And. 1.92–101, 133– numerous scholars as a late forgery andit will be discussed in more detail inChap-

ιἄ ν κ ε ρ , ἐξή ίζ ο ν ετ ω ία λ λ ςἠγ α ί, Κ α ,ὧ ρ τ τ ο σ μ α ἄ ν ε δ ς ςδικα τ ο ῦσώ ὸ ὶἄλ 4 εἰ μ ςἢ υτιν λ ο ὲν ερ π μ ο ικ μ α α έν . ὶτ ὰ ρ π α ὰ τ λ νεἰρη νἄλ ω ῶ

1. The synêgoriai

27

ter 4 below. Other scholars, for example Blass (1887: 568– 569) and especially 57), havebeenprepared toaccept thespeech asa genuine fourthLämmli (1938: 17– century oration, although most modern scholars reject the possibility of Lysianic authorship. Here I shall only anticipate myconclusion that there is no compelling reason whyweshould classify thespeech as a pamphlet rather than a genuine piece of forensic oratory. Lys. 13 was delivered in an apagôgê brought by Dionysios (13. 41, 86, 90).5 Blass (1887: 555) characterized thespeech asa mainspeech; buthewasfully aware that thespeaker himself hadnottaken legal responsibility fortheapagôgê. Informal terms Dionysios’brother-in-law, thespeaker of Lys. 13, probably appeared assynêgoros in support of the main prosecutor (see Chapter 3: 2b for further discussion). Lys. 14 and 15 were probably delivered in a graphê astrateias.6 It is clear from the remarks made in Lys. 14.3 and 15.12 that the speakers addressed the court after the main prosecutor Archestratides, andthat the latter hadconducted the main part of theprosecution.7 Thespeaker of Lys. 15ends hisspeech witha brief reference to his personal reasons for having addressed thecourt (15.12): ‘Now, I, being the supporter of myfriend Archestratides as well as avenging myself onmyenemy Alkiῳ ὄ ν ίλ τ ρ ιἈ χ εσ ρ μ τ α ὲνο γ ὼ ὖ νκ α ὶϕ biades, ask you to vote for a just decision.’(ἐ η θ ρ ῶ η ο ν ν ,κ ἐχ ρ θ α ιά μ ὸ ὶἈ ν ο ῃβ ω εν δ ύ λ ὄ κ ο ιβ ν τ ίδ τ α , δέομ τ ιμ η α ιτ ς ὰ δ ια ίκ α ψ ϕ ίσ α σ θ α ι.) Both speeches were classified as synêgoriai by Blass (1887: 486 and 489).

[Lys.] 20 is a defence synêgoria written for delivery in a public action on behalf of Polystratos, whose son delivered at least part of the surviving speech ([20]. 11– 36). For the possibility that the first ten sections of the speech were delivered by another synêgoros, see thediscussion inChapter 4: 3. Lys. 27, which has been classified as a synêgoria by Lavency, was delivered in support of a prosecutor in a public action heard by a dikastêrion (27.6), probably a 455) and Lipsius (1905–15: 907 n. 24) reeuthyna.8 However, Blass (1887: 454– garded the text as the endof a mutilated speech, not as a synêgoria. Blass (1887: 5) drew attention to a lexicographical reference to the word κα τ ιώ α δ ξ α ι 372, 454– ρά τ in Lys. κ υ ο α τ π ικ ὰἘ ς(fr. XLV [Thalheim]). Heregarded this as anindication that Lys. 27 has not survived in its entirety, since the word does notoccur in the extant text. This led himto draw the conclusion that the extant part of the speech was but an epilogos delivered by the main prosecutor. But it is very likely that more 5

6

7 8

See also Hansen (1976: 131) cat. no. 12. Hansen (1973: 17)concludes onthebasis of Lys. 15.1and4 thatthetwospeeches weregenuine andsuggests that they mayhave beendelivered ina graphê astrateias. Heargues, pace Dover (1968: 166– 167), that there is no reason for treating Lys. 15 as spurious: the title of Lys. 14, is unreliable evidence forthetype of action employed, andit is α τ υ υ ο ο λ δ ίο ιπ ιά ξ κ α τ κ ιβ λ ὰἈ 8 whether the action brought was a graphê impossible to decide on the basis of Lys. 14.5– astrateias, deilias or lipotaxiou. Carey (1989: 148) also accepts Lys. 15 as genuine. ο υ ς ο τ ρ ὺ ςνόμ ὰ ·κ α ὶγ η σ ε ρ γ ό η η ν τ ῶ ςἱκα ςκα ίδ α τ ρ ρ χ τ εσ Ἀ ν ω λ λ ἄ ν ὲ ν τ ν ο ῶ ὖ Lys. 14.3: π ρ ὶμ ε · χ ε τ ο ρ έσ α π ν ω τ ρ ν α ά ςπ ρ τ υ ά ὶμ α έδ ειξ εκ ἐπ Hansen (1975: 66 n.6), see Harrison (1971: 208 n.2) whosums upthe pre-1971 debate. Todd (1993: 302) classifies, tentatively, theprocedure as a euthyna.

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than onespeech mayhave been written fortheprosecution (onthis question see pp. 147 in Chapter 4, below), andthe word κα 145– τ α δ ιώ ξ α ιmayin that case have occurred in another speech delivered in the same legal action. Blass’argument is thus notcompelling. The speech carries the title ‘Epilogos against Epikrates and hisfellow ambassaα dors’(κ τ ὰἘ π ικ ρά τ ο υ β ςκ εν τ ρ α ν ῶ γ εσ ὶτ ἐπ ο μ π ίλ ). Thedesignation of a ῶ ν ο σ ς υ speech asanepilogos does notinitself allow theconclusion that wearedealing with a synêgoria, and, whatis more, thetitle of thespeech is nowuniversally dismissed as spurious. But although the title of the speech must be rejected, there are other indications within the speech itself that our speaker wasnot the only prosecutor, and, furthermore, that hewasprobably notthefirst oneto speak. Admittedly, the speaker’s opening remark (27.1) does allow the interpretation that thespeaker himself haddelivered thecharges ina part of thespeech nowlost (orperhaps never written down–see Dover [1968: 160] forthis suggestion andfor parallels tosuchopenings): ‘Enough accusations havebeenvoiced against Epikrates [and his fellow ambassadors]’ (κ η τ γ α ρ η ν ιμ έ ,ὦ ό ρ α ε η ἄ ν τ ν δ α ςἈ θ ῖο ι, Ἐ ρ π ικ ά τ ο υ [κ ]). However, the alternative interpretation of β ςἱκ ευ α ν α τ ὰ ρ ῶ ν εσ ὶτ μ ν π ῶ σ υ this remark as anopening phrase of a synêgoria canbe supported by four parallel openings of speeches allof which were indisputably delivered assupplements tothe 4, 25.1, andDein. 1.1– 2. contributions of main prosecutors: Lys. 14.3, Dem. 22.3– This latter interpretation is further corroborated by the passage 27.14–15 in which thespeaker refers totheprosecutors intheplural withtheclear implication thatthey operated

asa team.9

Lys. 32 wasdelivered by a synêgoros, probably in a dikê epitropês. The speaker wasa brother-in-law of twoorphans whohadallegedly beendefrauded. Atleast one of the orphans hadundergone his dokimasia prior to this legal action (32.9), and it canbe inferred fromthe speaker’s introduction (32.2) that theorphans themselves hadinitiated the case against their maternal grandfather, whohadbeen acting as their guardian.

Isaios 2 was delivered in a dikê pseudomartyriôn by a synêgoros on behalf of thewitness standing trial (2.2, 17). Thesynêgoria wasdelivered bytheperson who hadreceived support from thewitness in theformof a diamartyria confirming his status astheadopted sonof Menekles (2.2); andtheclassification ofthespeech asa synêgoria is unproblematic. Aswill be argued inSection 4 below, it seems to have been quite common that a witness whowas attacked in a dikê pseudomartyriôn would receive synegorial support fromtheperson onwhose behalf hehadtestified. Isaios 4 was delivered by a synêgoros in a diadikasia klêrou by a person who professes to be a family friend of the twobrothers whowere claiming the inheritance left bya certain Nikostratos (4.1). Isaios 6 wasdelivered in a dikê pseudomartyriôn by a synêgoros whoacted in 2). The speaker claims to be a family support of the plaintiff, Chairestratos (6.1–

9

σ ρ θ α ϕ δ ό α ίζο δ εδ εῆ ι, νομ α τ ν ς ρ ν σ ω ό γ η τ α κ ν ῶ α ὴ κ ὶτ ρ θ ιχ α 27.14: ἔ τ ιδ ὺ ο τ ὲτο ὺ ὐ ςἡγεῖσ ςα ᾽ὑ μ ῶ ν ... Even if ρ α π ἢ ειν ά ν β μ α λ ρ ιν ά ν χ ὴ τ ν η τ ύ α τ ν ω τ ν ὄν μ ω ῶ ν ὀ λ ίγ ρἡ α τ ν νθ τ π λ ᾶ ο ὺἂ ο π first person plural, it is hardly likely that he weallow that a litigant ᾽ mayrefer to himself in the would usetheadjective ὀ ο ςif hewasacting alone. λ ίγ

1. The synêgoriai

29

friend of Chairestratos andhis father, andhis main function seems to have been to present thejudges with anaccount of the family’s misfortune, including details so unsavoury that it would have been highly inappropriate for a family member to bring them to the fore (6.17). Isaios 12 wasdelivered ina dikastêrion. Thetype of procedure is unknown and hasbeen muchdebated.10 Thespeech wasdelivered bya paternal half-brother of the defendant Euphiletos whohadbeenstruck off theroll of hisdeme. Several members of the deme Erchia seemto have acted as prosecutors (12.7– 8), andtheprosecution was directed at Euphiletos himself, while his half-brother acted as his synêgoros. The legal position of the speaker wasnotdiscussed by Blass in his brief analysis of 573).11 However, the speaker’s status as synêgoros is conthe speech (1892: 570– firmed by 12.4, inwhich thespeaker refers tohisownappearance asa witness inthe present action; for main litigants, as a rule, were not allowed to testify in their own cases ([Dem.] 46.9).12 Isokr. 21 was delivered by a synêgoros on behalf of Nikias whohadbrought a dikê of unknown type13 against Euthynous (21.1). Since the speaker describes his own task as that of speaking on behalf of Nikias, the classification of the speech as a synêgoria is unproblematic, although some doubt mustremain as to whether the speech has survived in its entirety (Blass 1892: 221– 222). Dem. 18 wasdelivered by Demosthenes himself on behalf of the defendant Ktesiphon, whowasattacked by Aischines in a graphê paranomôn (18.13). Ktesi-

10 For anoverview of thedebate onthelegal procedure employed inthis case, seeJust (1968). 248) notes that this speech wasa synêgoria. However, his assumption 11 Avramovic (1997: 247– that Euphiletos personally haddelivered a substantial main speech in which the most important facts andwitness statements were presented to thejudges mayconflict with the information provided byDion. Hal.Isaios 16,where it is reported thatthesection quoted fromIsaios 12had been preceded bya narrative andtestimony. It is most probable that the preceding sections of the speech nowlost hadalso been delivered by Euphiletos’synêgoros, although there are other examples of mainspeech andsynêgoria having beentransmitted asa single composition inour corpus of forensic oratory. Themostfamous example is [Dem.] 59. 12 This observation wasmadee.g. byLeisi (1907: 37). Theonlyexample of a litigant whotestified 876) characterized this as a rhetorical inhisownaction is Dem. 19.176. Lipsius (1905–15:875– ploy; butif so, it is surprising that wefind noother litigant resorting to this tactic. Perhaps an explanation maybefound inthenature of theprocedure brought against Aischines, andtheway in which it hadbeen initiated, first byTimarchos andlater byDemosthenes. If theprosecution was brought andrelaunched as a euthyna (and this cannot be determined with certainty) it is possible that this mayhave affected Demosthenes’ standing as a prosecutor. Euthynai were initiated only indirectly byindividual citizens whohadto submit their complaints to theeuthynoi. The latter would pass on public cases to the thesmothetai if they found the complaints 5). The indirect initiation of such public actions may have meant that justified (Ath. Pol. 48.4– individual prosecutors didnottake onthesame degree of responsibility as those whoinitiated public actions directly before the thesmothetai. Their standing as prosecutors maythus have resembled that of a synêgoros pleading a case asa representative of thepolis. This would also explain whywehavenoattestation of a statutory risk fortheprosecutors insuchactions. Inthat case, euthynai in[Dem.] 46.9 mustrefer totheprivate typeonly. Onindirect initiation of public actions, see further Chapter 3: 2c. 13 Todd (1993: 282) mentions as possibilities dikê parakatathêkês anddikê blabês.

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phon hadproposed an honorific decree for Demosthenes, andDemosthenes could thusclaim that hisinterests wereequally atstake inthis trial (18.5). Dem. 20 wasdelivered in support of a prosecutor in a graphê nomon mêepitêdeion theinai, presumably by Demosthenes himself.14 It is clear from 20.1 (σ υ ν ε ρ εῖν ) that the speaker appeared as a synêgoros. Hewasclearly butone of a larger team appearing ontheside of theprosecution, some of whomhadalready addressed thecourt (20.51). Dem. 22 wasdelivered in a graphê paranomôn brought byEuktemon (22.1, 3). The speaker Diodoros addresses thecourt after Euktemon (22.3), which mayindicate that heappeared as a synêgoros (but see Chapter 3: 2b). In anycase, it is clear that his speech wasnotthemaincontribution to theprosecution’s case (as wasnoted also by Blass [1893: 258]), andthat it worked as a supplement to the first speech which hadalready beendelivered byEuktemon. Dem. 25 and [26] were delivered in anendeixis to the Assembly conducted by Lykourgos, whowas assisted by a number of co-prosecutors (25.1). Some or all of the latter hadbeen elected by the Assembly (25.13). Thus, the speeches belong with thefour other speeches delivered byelected prosecutors. It is still disputed whether Dem. 25 is a genuine piece of forensic oratory ([26] is nowwidely accepted as a fourth-century speech, though notDemosthenic).15 Thetrouble began whenDionysiosof Halikarnassos (allegedly) rejected bothspeeches against Aristogeiton asnonμ ῆ κ τ εν ό ςἰδ Demosthenic ongrounds of style (ἐ ο α ιρ έ α , hyp. Dem.25, 7).16 ς ςτεκμ This verdict was accepted by Lipsius (1883) andby Blass (1893: 411–412), albeit 14 See theevidence anddiscussion referred to inChapter 4: 2 note 39 andinn.69 below. 15 Hansen (1976: 144) argued that it is important for usto establish genuine Demosthenic authorship for Dem.25, since thespeaker is arguably identical withDemosthenes. Butthefact that the speaker is anti-Macedonian andhasbeenprosecuted byAristogeiton innine public actions does not necessarily prove that he was identical with Demosthenes. It is highly conceivable that several other citizens might fit this description. Although the title of Aristogeiton’s defence speech (fr. I [Müller]) mentions onlythetwomostprominent members of theprosecution team, Demosthenes andLykourgos, weknowwith certainty that the team numbered other individuals, some of whommayhave been quite prominent. In addition to theunknown speaker who delivered [Dem.] 26, it appears from Dem. 25.54 that another co-prosecutor, Phaidros, had contributed to the prosecution with an account of Aristogeiton’s conduct towards his father 58: III Beil. IV 118 n.2), during the latter’s exile in Eretria. As suggested by Schaefer (1856– 16

this Phaidros is very likely identical with Phaidros Kalliou Sphettios whose military career included activities relating to Euboia (PA 13964 = Davies [1971: 525]). Thealleged rejection of Dem.25 byDionysios of Halikarnassos inDemosthenes 57 should not ᾽is a conjecγ ν ο είτο ςβ ρ ισ ο τ ᾽Ἀ τ ο α ῖςκ ντ ςἐ be considered overly problematic: thepassage ὡ ᾽. Usher (1974: 452) γ ρ είτο ο ισ ν τ ςβ ο ᾽Ἀ τ α κ τ ν ῇ ςἐ ture suggested byBlass. Themss. all have ὡ accepts Blass’conjecture inhisGreek text, butfollows themss. inhistranslation. Ontheother hand, Libanius’Hypothesis mayrefer toa different, nowlost, passage inwhich Dionysios openly rejects both speeches. But I do notshare Sealey’s optimistic assessment (1993: 237) that Dionysios’judgement canbe assumed invariably to ‘rest onthoughtful inquiry’without further evidence. It is clear from Demosthenes 57 that Dionysios has anaxe to grind when heclaims, pace Aischines, that he has not been able to find examples of crude passages in any of Demosthenes’ speeches, promptly dismissing those which do contain such vulgarities as nonDemosthenic. However much Dionysios deserves our respect, he has a propensity for getting 97). involved incircular arguments, as noticed byDover (1968: 95–

1. The synêgoriai

31

fordifferent reasons.17 Butthedebate didnotendhere: themodern controversy has raged for more than a century, andthe arguments for andagainst acceptance of the speech are focussing onever smaller details. 152) devoted an appendix to a discussion of Dem. 25 and Hansen (1976: 144– concluded that, as far as thecontents of the speech areconcerned, there is nocompelling reason why we should reject the speech as a philosophical pamphlet or a Hellenistic forgery.18 McCabe (1981) subjected thespeech toa computer-aided stylistic analysis, andconcluded thatthere isnobasis forrejecting thespeech ongrounds 239) replied to Hansen’s appendix by pointing out diof style. Sealey (1993: 237– vergences between Dem. 25, [26] andDein. 2 in their accounts of the life of Aristogeiton, andbydrawing attention tothree passages (25.42, 25.13, and25.65), which apparently conflict with what we know about Athenian law. As far as the disagreement between Dem. 25 andthe twoother sources for the life of Aristogeiton is concerned, Sealey’s arguments carry little weight. The three speeches conflict over relatively minor details (the size of Aristogeiton’s debt to the treasury, the number of endeixeis brought against him, the exact circumstances of hisbetrayal of his father, andhisconduct in prison). If such inconsistencies were to form sufficient grounds for rejecting a forensic speech as a late forgery, weshould have to face a difficult choice between rejecting, for example, either Dem. 18 or Dem. 19because of their inconsistencies inregard to thelife of Aischines.19 As for the three specific passages discussed by Sealey, 25.42 ῾οὗ τ μ ῖνο ο ςὑ ὐ χ ὶ ῷis translated by Sealey as This μ ὴ λ η ε έγ ιν α ὐ τ ή θ ,ὧ ν ν ἐτιμ ᾽ἐτῶ θ ρ ῆ επ λ ο τ έν σ π mandidnotapproach youfor five years, theperiod forwhich hewassentenced‘ not ᾽ onstate debtors is unknown, tospeak.’ S ince temporal limitation of atimia imposed Sealey infers that the author of Dem. 25 was not familiar with Athenian legislation. However, if therelative pronoun is read, with anomitted antecedent, as a partitive genitive with π ᾽ἐτῶ έν τ , the meaning of the passage is that Aristogeiton observed ν his atimia for five years out of the total period in which he hadbeen atimos.20 In 25.13 the speaker claims that he hadbeen elected as prosecutor by the Assembly, to which Sealey remarks that ‘there is noevidence that prosecutors were elected for theprocedure of endeixis’. Sealey overlooks the fact that theprocedure employed was not a regular endeixis to the Eleven, but, rather, an endeixis to the 16)forthepre-1893 German debate. 17 See Blass (1893: 410 with nn. 10– 18 Hansen’s appendix is a point-by-point refutation of Lipsius (1883). 19 Onthenumber of endeixeis brought against Aristogeiton (with different results), Sealey’s most important objection, see Hansen (1976: 151). Sealey does notdiscuss Hansen’s point. Oninconsistencies in the speeches of Demosthenes andAischines, see most recently E.M. Harris 16). It maybeobjected that weshould notexpect the same level of inconsistency in (1995: 7– Dem.25 andDein. 2, because thespeeches weredelivered within a relatively short spanof time, whilst 13years separated thetrials inwhich Dem. 18and19weredelivered. However, there are similar contradictions inregard to thedetails of theconduct of Demosthenes between Aisch. 3 (delivered in 330) andDein. 1 against Demosthenes (delivered 323), andbetween Dein.1 and 303]). Dein. 2 delivered inthesame year (see e.g. Worthington [1992: 302– 20 See Madvig (1857: §102a), Smyth (1956: §2522a, 2531). The fact that there is no definite

ίς νsupports this interpretation, especially when read with the next line τ ᾽ἐτ ῶ τ έν article with π ; ν η σ ε θ ό νἐπ ῳ τ ο τ ο ν ῦ ρ ό τ ῳ χ ῷ ο ὖ ν ἐντού τ

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Assembly, which would explain the appearance of prosecutors orprosecution synêgoroi elected by that body. We know only one or possibly twoother instances where endeixis to the Assembly was employed (Hansen 1976: 32), both of which were dismissed by the Assembly without ever being heard by the court. Sealey’s argument from silence thus carries noweight.21 λ The last passage to be discussed by Sealey is 25.65 (κ ο ᾽ὀϕ η α ῦ τ ὶτ έρ ὴ νμ σ α ν ἀ π ο σ τ α ίο υἀ σ π έδ ο σ θ ε), which hetakes to mean ‘andyousold hismother whohad been convicted in a dikê apostasiou’, i.e. that Aristogeiton’s mother was sold by the state at a public auction as a result of the dikê apostasiou. If this interpretation is correct, it is difficult to reconcile this passage with what weknowabout theprocedure of apostasiou, a private action which a former master could bring against his freedmen andfreedwomen for nothaving fulfilled their obligations towards him.22 Asfaraswecantell, thefreedman orfreedwoman wholost a dikê apostasiou would simply beenslaved anewto their former master. π However, ἀ μ ιin the middle voice with the meaning ‘hand over’or deο δίδ ω ‘ liver up’is attested elsewhere in Attic oratory (cf. LSJ s.v. III). The passage will

easily allow theinterpretation that, asa result of thecourt’s decision, Aristogeiton’s mother washanded overto herprevious owner (see also Todd[1993: 191n.40]). I thus see nocompelling reason for rejecting Dem. 25 as a late forgery, andhenceforth both Dem. 25 and[26] will be usedas genuine fourth-century synêgoriai.23 Dem. 29 was delivered by Demosthenes himself in a dikê pseudomartyriôn. Demosthenes spoke assynêgoros onbehalf of a witness whohadtestified forhimin his legal action against Aphobos (29.8–10, 50, 53).24 As noted by Blass (1893: 236) thespeech endsrather abruptly, which maybetaken to indicate thatit wasfollowed bya further contribution, delivered byanother synêgoros orperhaps byPhanos himself. Dem. 34, delivered inaparagraphê, resembles [Dem.] 59 inthat it waswritten for delivery bytwospeakers. Thesecond speaker hastaken over in34.23 andcon-

for a number of paragraphs. The last paragraphs (perhaps from 33, perhaps from40 onwards) wereverylikely delivered bythefirst speaker.25 Pace Blass (1893:

tinues

21 Thepractice of electing synêgoroi fortheprosecution will bediscussed further inChapter 3: 2c. 22 Lipsius (1905–15: 625) interprets the passage in the same way. Heargues that the author of

Dem. 25 has confused the dikê apostasiou andthe graphê aprostasiou against metics for not having registered witha prostatês, of which thelatter would result intheunsuccessful defendant’s being sold at a public auction. 23 I have resisted thetemptation togoalong withthefinal suggestion inSealey’s appendix (1993: 53 and25.54–101) thathave beentransmitted 239), thatDem.25 is infact twosynêgoriai (25.1– asonetext. Dem. 34 is in fact twospeeches rolled into one, andso is [Dem.] 59. Wemayhave yetanother example in[Lys.] 20, which will bediscussed further inChapter 4. Sealey’s suggestion is thus highly plausible; butit is nota valid argument against thetext as a genuine piece of fourth-century forensic oratory.

234) andMacDowell (1989). The latter argues that Dem. 29 mustbe 24 I follow Blass (1893: 232– accepted as genuine pace Finley (1952) in particular, butwith further references to previous discussions.

25 See Lipsius (1905–15: 910) for references to the 19th-century speech.

debate over the division

of the

1.The synêgoriai

8

33

581), the fact that the synêgoria was delivered in the middle of, rather than 580– after, the main speech is notsufficient reason foromitting this speech fromthe list. A parallel instance is found in Aisch. 2.143 where Boiotian andPhokian representatives are called to the bêma as synêgoroi, whereupon Aischines resumes his defence.26 That the first speaker, Chrysippos, initiated the original procedure against 18. It is indicated in 34.43–44 that the first speaker is Phormion appears from 34.13– indeed the main litigant. I have chosen to follow Lavency andhave classified the speech as partly synêgoria’. This is supported by the speaker’s closing remark (34.52) ‘I shall α λ ῶ δ ὲκ α ὶ ‘ call yetanother of myfriends if youinvite metodoso’(κ ϕ ίλ ω ν η τ ἐὰ ε), a phrase which indicates that onefriend had κ ν ελ εύ τ ὰ ν ῶ ιν τ ν ο λ λ ἄ already spoken.27 Dem. 36 wasdelivered by a synêgoros in aparagraphê onbehalf of the banker Phormion. Phormion was attempting to block a legal action brought by Apollodoros, andhis synêgoros justifies his intervention byreference to Phormion’s lack of experience as a speaker incourt (36.1). It mayalso be inferred fromtheopening line that Phormion himself haddelivered a brief introduction to thecourt; butapart from Phormion’s prooimion, the surviving speech contains most or all of the arguments presented insupport of Phormion’s case. Theclosing paragraph of thespeech is a request to thecourt attendant to pourouttheremaining water from theklepsydra, which shows that this speech cannot have been followed by further synêgoriai.2 [Dem.] 43 wasdelivered in a diadikasia klêrou onbehalf of the boyEuboulides, whowasstill a minor. Thespeech wasdelivered byEuboulides’natural father, who didnot, however, actasEuboulides’kyrios. Euboulides waslegally theadopted son of his maternal grandfather ([43].12–14), andit was his older natural brother who hadbeen registered asEuboulides’kyrios onthewrit relating to thetrial ([43].15). Thus, Euboulides’natural father wasformally acting as a synêgoros inthepresent case. It is quite likely, however, that the rôle of Euboulides’ kyrios in the court hearing hadbeenmerely perfunctory; forEuboulides’father seems tohave taken on the lion’s share of the pleading. ρ inthis passage. Forfurther discussion of Aisch. 2.143, see ε ύ ω γ ο 26 Aischines uses theverbσυνα Section 2 of this chapter. 27 Lofberg (1932) followed Blass in arguing that Dem. 34 wasdelivered by one speaker only. Gernet (1954: 150) accepts withreservation thetraditional viewthat there were twospeakers, butis tempted byBlass’suggestion that thespeech wasoriginally written as a synêgoria, and tosuit theactual prosecutor. Wolff (1966: 63)holds thatthespeech later revised –imperfectly – wasdelivered bytwospeakers; but, unlike Harrison, hedoes notbelieve thatbothspeakers had beenequally responsible forbringing theaction: heregards thesecond speaker asa synêgoros (Fürsprecher) rather thanactual party to thecase. 28 It maybe suggested very tentatively that Dem.36, like Dem.34, hadbeen written fordelivery μ ν ε π λ ις λ ά κ ο ισ ν ,ἃ σ ύ ῖν ιςἡμ ή δ ειο ᾽ἐσ ο τ ῖςἐπ ιτ ὶτ η δ κ γ bymore thanonesynêgoros. 36.1ἀνά μ ᾶ ... maybe taken to suggest that ς ινὑ ε κ σ α ὶδιδά ινκ ε έγ τ τ ες ,λ ο ό κ ο ύ η τ ο υδιεξιόν τ ο κ ςἀ more than one of Phormion’s friends would be actively involved in his defence. Thepassage 24 looks conspicuously like anopening by a newspeaker, whois restating the case in 36.23– 3. Fortheparticle τοίν ν υ terms that bear a striking similarity to theopening paragraphs 36.1– 574). commencing a contribution bya newspeaker, see Denniston (1954: 571–

34

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Dem. 44 was delivered in a dikê pseudomartyriôn by a son of the plaintiff ([44].3– 4). The sonjustifies his appearance as speaker by referring to his father’s lack of experience ([44].4); butit mustbe noted that herepresents himself andhis father as equally affected by the present trial. It is thus quite likely that the judges would haveperceived himasjoint party tothecase rather thanasa synêgoros acting on his father’s behalf. [Dem.] 59, delivered ina graphê xenias, is oneof thefewprecious examples of a speech which comprises both a contribution by the main prosecutor anda speech delivered by a supporting katêgoros. Conventionally Apollodoros’ speech is classified as a synêgoria, although hedelivered what wasin effect the main speech (see also Blass [1893: 537]). The first prosecutor, Theomnestos, spoke the first 15 paragraphs, while Apollodoros, whois introduced as his synêgoros, delivered the rest of the speech, 110 paragraphs. Fortheproblems relating to Apollodoros’ formal position in this legal action, see Chapter 3: 2b. Hyp. 1 Dem. wasdelivered in theapophasis against Demosthenes in connection withtheHarpalos affair. Thespeaker, presumably Hypereides himself, wasone outof tenprosecutors elected bytheAssembly (for thenumber of prosecutors, see Dein. 2.6), andhe probably wasnotthe first or even the main speaker (see Blass [1898: 73– 74] andmydiscussion in n. 94 below). Hyp. On behalf of Lykophron, no. 2 (ὑ π ὲρΛ υ κ ) (P. Oxy. ρ ν ο ο ϕ ςβ᾽ ό 13.1607)29, which wasdelivered inaneisangelia onbehalf of thedefendant, is preserved in a very mutilated state. I have decided to include this speech in the present 119) rejected ὑ ρΛ υ κ π 29 Colin (1946: 118– ὲ ρο ν ο ϕ ςβ᾽asa genuine speech byHypereides solely ό onthegrounds thatthespeaker seems tofocus exclusively onrefuting theallegation that Lykophron haddugthrough the wall of the woman’s house, while he neglects other parts of the charge. But given that Lykophron hadseveral synêgoroi (Hyp. 2.10–11), it is perfectly possible thatthey would havedivided upthedefence between them, sothateachof themwould focus on a particular point (see thediscussion inChapter 4 below). Furthermore, thespeech is extremely fragmentary as Colin himself notes, andthus hisargument carries hardly anyweight. However, ρΛ κ υ another argument against accepting Hypereides as the author of ὑ π ὲ ρο ν ο ϕ ςβhas been ό advanced byKörte (1923: 231) and(1924: 159), whodrewattention to theavoidance of hiatus ᾽ Avoidinthesurviving fragments of this speech (150 lines altogether, butnotcontinuous text). ance of hiatus is nota normal characteristic of the style of Hypereides, except in the funerary oration. However, I doubt thatenough hasbeenpreserved of thetext of ὑ ρΛυκόϕ π ὲ ρο ν ο ςβto allow a safe conclusion regarding authorship. The number of words in the most substantial ᾽ ρ[), 62 (fr. II col. γ ὰ ν τ ο... ε ὲ ἰμ fragments of continuous text is 55 (fr. I col. 1), 53 (fr. I col. 2]α 3) and32(fr. V).Forcomparison, there aresubstantial parts of Hyp.2 inwhich thefrequency of ρΛ υ π κ ὲ ν ο ρο hiatus is as lowas inthe fragments of ὑ ςβ, e.g. fr. IV col. 47 (78 words) and2.8 ϕ ό (43 words). Likewise, Hyp. 3 suggests that Hypereides is remarkably inconsistent in his style ᾽ is extremely high (e.g. 3.5, with regard to hiatus. There are passages in which the frequency 22), while it is lowin other passages (3.8–13 excluding the quotation of the nomos eis3.20– 37). This unevenness inHypereides’style wasnotdiscussed byKörte, 28, 3.36– angeltikos, 3.27– andhe did not take this problem into consideration, neither when he contrasted P.Oxy. 1607 with 150 lines chosen at random from the Lykophron speech’(1924: 159), norwhenhecal‘ the total number of occurrences in the Lykophron speech in its entirety (1923: 231). culated While I donotentirely dismiss the validity of thecase made byKörte, I would still question if κ υ ν ο ςβprovide a sufficient basis for such statistics. I ρΛ ρο π ὲ ϕ ό the surviving fragments of ὑ amgrateful to Prof. D. Whitehead fordrawing myattention to this problem. ᾽

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survey of synêgoriai, mainly because of the many references to the defendant’s synêgoroi inthepreserved speech delivered bythedefendant himself (Hyp. 2 Lyk.).30 Hyp. 3 Eux. was delivered by Hypereides himself in defence of Euxenippos who was standing trial in an eisangelia brought by a certain Polyeuktos (3.3– 4). Hypereides was clearly speaking as part of a larger defence team, and it appears fromhis remark in 3.15 that at least oneother synêgoros hadalready addressed the court. Hyp. 4 Phil. wasdelivered in a graphê paranomôn. Wedonotknowthe identity of the speaker: the speech mayhave been delivered byHypereides himself, but there is noinformation inthe surviving part of thespeech that allows a secure identification.31 Unfortunately the speech is very fragmentary, andthe only indication that the speaker appeared as synêgoros is his closing remark (4.13) that he has decided to use only one amphora of water for his contribution. Considering that one amphora’s time was between 36 and48 minutes,32 andconsidering that the time allotted to the prosecution in a graphê paranomôn wasprobably 5 1/2 amphoreis,33

30 Other synêgoriai preserved onpapyrus areLysias π ρ ὸ ςἹπ (P. Oxy. 1606) andHyperη ν π ρ ο σ θ έ ίλ ο υ ρ π ε ὶτ ο ῦτα εϕ ρίχ ιρ ρΧα ο ν π ὲ eides ὑ ς(P. Oxy. 2686). Hypereides composed twodefence ϕ ε speeches to bedelivered inthis action (Harp. s.v.ἀ ὶςτ ὴ ν ὑ ν α τ π ν έρ ὸ π ν ό δ υ α κ δ ί ιώ ιandΠ κ ε = frg. LI andLII [Jensen]). P.Antin. 2.62 (attributed toDeinarchos) wasprobably delivered by ρ wasdelivered byLysias’ ν η ὸ anelected prosecutor. Ithasbeendiscussed whether π ρ ςἹπ σ π οθ έ prostatês or by a synêgoros. See Whitehead (1977: 91 with n. 145) for a brief summary of the debate. Whitehead draws attention toLys. 5, another example ofa ‘synêgoros ina metic’s case’. ρ ίκ εν π ρΦ ε ο ὲ υπ ρ ν ο ὶτ ῦἈ ρ δ ε ο ρ κ ο λ ή Add to this Lys. ὑ υ(Dion. Hal. Isaios 6), a είδ ο λ υκ speech delivered bya synêgoros whofelt obliged toexplain atsome length whyhehaddecided to appear as supporter of themetic, fr. CXX (Thalheim). 31 Thereference tothis trial inAthen. Deipn. 552d isequally unhelpful inthis regard. Thepassage canbe usedonly in support of theassumption that Hypereides wastheauthor of thesurviving η ς , speech; butit does nottell uswhodelivered thespeech incourt: λ ν κ π ίδ ὸ ᾽ἦ α τ επ ὶΦιλιπ ςδ ή τ ρ ο ῥ ι, λέγ ω ν ῷ α ᾽ ὐ ῃ τ τ ε ίδ ὸ ν ερ ν γ ἕ ᾽ο μ ι. ἦ δ ν ο α εἶν ν τ ν τ έν ω α π λ ςἐσ ὶν π ο ιτ ὗλό ῶ ευ ο θ κ α η είδ ερ ςἔϕ η τ α ,ὡ τ ςὁ π τ ιὰ επ ό δ η . α μ ῶ ὴ ὸσ ςτ εὐ τ ελ ᾽λ ῾ to a chous is disputed: some scholars prefer to 32 Rhodes (1993: 721). The number of minutes operate withfour-minute choes. Lang(1995: 77) makes theimportant point thatthebronze tube intheklepsydra found in theAgora, forming thebasis of themodern three-minute assessment of a chous, mayhave lost a millimetre from its internal diameter through corrosion. 33 Aisch. 2.126 and3.197–198. The length of a court daycorresponded to a dayin the shortest 727) suggests that theoriginal measure ‘a third month of the year. Rhodes (1993: 723 and726– of a court day’, asdescribed inXen. Hell. 1.7.23, hadbeenabandoned bythetime whenAisch. ηwas still used. Howμ έν η μ έρ α ετρ δια μ εμ 2 and 3 were delivered, although the expression ἡ 198 andXen. Hell. 1.7.23 maybe dueto the fact ever, the discrepancy between Aisch. 3.197– η τ ο ς(Xen. γ νἀτίμ ὼ that the action suggested by Euryptolemos for trying the generals is anἀ 198 refers to anἀ η γ τ ό ὼ ν τ ς . Rhodes is inclined to believe ιμ Hell. 1.7.22), while Aisch. 3.197– μ η ό σ ν ιο δ γ ὼ η τ ό ςwould beallowed tospeak for ςτιμ that inthefourth century each party inanἀ 5 amphoreis and6 choes (= 3 hours and 18 minutes including the speeches on timêsis). The ϕ ο ρἀμ ὰ γ ρ ὸ α ςἕν δ εκ problem is a vexed one: Aischines’message in 2.126 (where he says π ᾳκρίν μ α ο ι) is that there is plenty of time for torturing slave έρ ρ ῃἡμ μ έ έν η α ςἐ ετρ μ εμ νδια witnesses. I find it hard to believe that Aischines’ 11 amphoreis was the time set aside for all speeches, including those ontimêsis: this would meanthatthetrial proper would last foronly 6 hours and 36 minutes while more than three hours would be spent onmanning thecourts andvoting. On

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wecanbereasonably confident thatourspeaker didnotcarry theprosecution onhis own. As for his position within the prosecution team, the possibility that he addressed the court as the first speaker cannot be ruled outcompletely, pace Blass (1898: 77). Even so, it is highly likely that Hyp. 4 was not delivered as the first speech ontheside of theprosecution. Attheendof hiscontribution thespeaker asks thegrammateus toreadoutthetext of thewritonce more (π ά λ ) inorder toremind ιν thejudges of theindictment andtherelevant laws according to which they were to cast their votes. Since thetext of theindictment wasreadoutbythecourt attendant at thebeginning of thetrial (Aisch. 1.2 andAristophanes Wasps 894– 897), it would probably make most sense asa rhetorical strategy toaskforanother reading towards theendof theslot allocated to theprosecutors. Atthis point, after the lapse of perhaps several hours, thejudges mayhave found it most helpful tobereminded of the wording andcontents of theoriginal charge.34 This strongly suggest that the speaker of Hyp. 4 was not the first prosecutor to address the court in this action, andthe speech will henceforth be referred to as a synêgoria.35

34

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the other hand, it is obvious that Aischines cannot have meant that he hadhad 11amphoreis μ ρ α ιas ‘myconviction oracquittal ίν ο allocated tohisdefence. Butif weinterpret Aischines’κ will be decided’, then the 11amphoreis make much more sense. If the 3-minute chous is applied, andif the 11amphoreis correspond totwo-thirds of a court day,this would workoutasa court dayof 16amph. 6 choes = 594 minutes, that is 9 hours and54 minutes, quite close to the average length ofadayinthemonth ofPosideôn (9 hours and36minutes, Keil 1902: 256). The prosecutor anddefendant would have 198 minutes each (= 3 hours and 18 minutes) for their pleading onconviction or acquittal, while another 198 minutes would be spent on voting and 198). Thedebate onthis issue hasbeencontaminated bytheassumptimêsis (cf. Aisch. 3.197– tionof Keil (1902: 255) that 1)thenumber 11wassomehow unacceptable, and2) thatAischines’ 11amphoreis + onewerea direct equivalent of theentire court day.Schol. Aisch. 2.126 (BLM) is muddled andthus of very limited value: while it first seems to assume that oneamphoreus η θ ὲ ρ ντ ετ α ] διαμ ῖςἕ ὸ ις ρ α ξὥ corresponded to one hour of a twelve-hour day, the phrase [τ ϕ ρ ο ε ῖςὕδα μ σ α ν ἀ τ ο ρἦ ςἕν inthesamescholion abandons this equivalent infavour of δ α εκ ω ὕ δ a court daythat works outas 22 amphoreis intotal. Keil’s interpretation of Aisch. 2.126 hasas its mainpremise that a chous wasfour minutes (the surviving klepsydra waspublished only in 1939), and, for Keil, this excluded the solution of a court dayof 16 amphoreis and6 choes suggested here. Keil’s insistence on 12as a ‘magic number’hascrept into many later discus91]). 69], Hommel [1927: 90– sions of theproblem (e.g. Colin [1917: 68– Note also that, towards the endof his defence synêgoria for Euxenippos, Hypereides (3.40) urges thejudges toaskforthewritof theeisangelia, thenomos eisangeltikos, andthetext of the έλ ρμ γ ὰ τ ν α dicastic oath to be readoutagain, once thejudges areabout tọ cast their votes: ὅ μ α ν γ ῶ ν τ ιτ έ α α τ ὑ ν ή ε π ν μ ρ α α γ α ν ὸ τ ῖν μ εὑ τ ε εύ ρ τ ε η εὦ ν δ ἄ ι, κελ ςδικασ α τ ίζ λ α θ ὶδιαψηϕ εσ ἡ λ ια σ τ ικ ν ό ν ὸ τ ν κ ο νὅρ ὸ ὶτ α νκ ὸ γ ικ τ ελ γ νεἰσα μ ντ ὸ ο γ ελ ία νκ γ ννό α ὸ ὶτ εἰσ α Atthebeginning of hissynêgoria against Neaira, Apollodoros doesasktheclerk ·toreadoutthe ὴ ν τ ϕ α η ν υ ὶθ τ ε ό τ ή ν τ εγρα ν ᾽ὃ θ α lawwhich formed thebasis of Theomnestos’prosecution (κ μ η ν σ τ ). This example constitutes a warnο ᾶ ς ἰςὑμ ςἐγράψ ιε α ετ χ α τ οκ ν τ ο γ ο ὗ α ὼ έρ ςεἰσ ὶὁἀ ingagainst a tooconfident conclusion that Hyp.4 wasnotdelivered as thefirst speech. Butit must be borne in mind that, while Apollodoros asks for a reading of a single law only, the speaker of Hyp. 4 asks for the entire text of the graphê to be read out. If wego by Aisch. 3.200 ) containing not only the text of the ν ιο ίδ ν α the writ in a graphê paranomôn was a tablet (σ illegal decree butalso thelawswithwhich thedecree proposal conflicted (see also Dem.23.215). If the speaker of Hyp. 4 wasfollowed by other contributors whowanted to have their say as well, it is not difficult to imagine that these menwould have been in a state of considerable impatience bythetime theclerk hadfinished reading outthedocument.

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Dein. 1 wasdelivered intheapophasis against Demosthenes inconnection with the Harpalos affair by a prosecutor whohadbeen elected by the Assembly (1.51). The speaker hadbeen preceded byat least oneother prosecutor, Stratokles, whose contribution is mentioned intheopening paragraph of thespeech (1.1). Dein. 2 wasdelivered by a prosecutor in the apophasis against Aristogeiton in connection with the Harpalos affair. The speaker wasacting as part of a team consisting of tenprosecutors elected by the Assembly (2.6), andhis address is a relatively short one, which consists primarily of a personal attack on Aristogeiton. It maybe assumed that previous speakers hadalready dealt with the main part of the accusation. Dein. 3 was delivered in an apophasis against Philokles, another of the men accused intheHarpalos affair (3.1). Again a teamofelected pleaders appear tohave acted as prosecutors (3.15), and the short contribution by the speaker of Dein. 3, whotouches only briefly on the actual accusation, suggests that he appeared after themainpartof theprosecution hadalready beenstated byoneormore other speak-

ers. Uncertain orfalse identifications of synêgoriai Lys. 18 wasclassified as a synêgoria by Lavency. The speech wasdelivered as a defence speech in a dikastêrion, possibly in anapographê. There is no indication 25 thespeaker actualinthetext thatthespeaker acted asa synêgoros; andin 18.24– ly complains that he has no synêgoroi who will plead for him.36 Blass (1887: 523– 530) assumed that thespeaker wasindeed themainlitigant. Lys. 28 wasdelivered bya prosecutor inaneisangelia heard bytheAssembly.37 The speech was classified as a synêgoria by Lavency, but apart from the title ‘Epiα τ ὰἘ κ ο λ έο υ ργ ςἐπ logos against Ergokles’ (κ ο ίλ ) there is noclear indication ογ ς that the speaker appeared as synêgoros rather than as main prosecutor. It wasassumed byBlass (1887: 458) thatthespeaker wasoneoutof several prosecutors who had been elected by the Assembly. The first line of the speech may suggest that it wasdelivered as a supplement to accusations voiced byother speakers;38 buton its ownthis type of opening does notprove that thespeech wasa synêgoria (see Dover 161). Unlike thecase of Lys. 27, there is nofurther indication in Lys. 28 1968: 160– that there was more than one prosecutor involved. Although it is highly plausible that the speaker appeared as a synêgoros (albeit notnecessarily elected), this cannot be proved from the speech itself. I have therefore chosen to omit the speech, although the question hasto be left open. Lys. 29 wasdelivered in a public action heard bya dikastêrion. The procedure employed wasanapographê (29.1). Thespeaker’s opening remark (29.1) maysuggest that he was not the main prosecutor, andthe speech was accordingly classified as a synêgoria by Lavency. Thespeaker complains that fewer people hadjoined in ά μ ι. α σ β ιβ ο μ ν ν α έν ῶ ἀ ο υ ρἡ ςὑ π α ὲ ςδεησομ ί, οὕστιν α τ σ ε ρ 36 Ο ςδικα ὐ κἔχ δ ν ,ὦ ἄ ω 37 Hansen (1975: 88) cat. no.73. ι ο νμ ν κἄ α η ὐ ῖο ι, ὥ τ εο ρ σ ε ά ,ὦ θ ν α ο ὕ τ ω λ ὰκ α ὶδειν ν δ ἄ ςἈ έ ςἐσ τ ὶπολ μ νκατηγορημ ὲ 38 Τ ὰ ν ῷ π ὼ ν ο λ λ κ θ ιςἀπ α ά ο μ έν ν τ ω ὐ α γ ρ α π ν υ τ τ ο επ ῶ ό ςἑκάσ ἑν ρ ῆ ςὑ π ὲ λ κ ιἘ α ο θ δ ο κ γ ε ῖδύνασ ρ θ ή ε ι. ῳ π λ ρ μ ετ έ ὑ ῷ τ νἀ ν η ία ξ δ ο ῦ ν α ιδίκ

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the prosecution than he hadexpected andadds that none of those whohadthreatened to prosecute have in fact turned up.Hiscomment suggests that he has been preceded by a fewspeakers andthat heis surprised’at thepoor turnout. Blass (1887: 460) argued, further, that‘the absence of witnesses andother evidence in support of the accusations made by the speaker points to the conclusion that the speaker wasa synêgoros. Healso drewattention to thespeaker’s comment in 29.1 that the reluctance of other prosecutors to participate means that they have been bribed with the money embezzled by Philokrates ‘which I regard as the most important proof that theapographê happens to begenuine’(ὃ κ μ ἀ ο ὶδ ο κ εῖοὐδεν ὸ ς ν τ ο τ εἶν α ἔλ α ρ ή ιτεκμ ιο ρ ν τ ῆ α ϕ γ ςἀπ ο ῆ ςὅ τ ιἀλη θ ὴ ςο γ ὖ χ σ α ά τ ν υ ε ι). Blass (1887: 460 n.7) interpreted the speaker’s endorsement of the prosecution as proof that he hadnot brought the apographê himself. However, it is equally likely that a prosecutor(even a mainprosecutor) might wantto begin hisprosecution bysupporting the validity of hisaccusation witha reference to anapparently objective ‘fact’inorder toconvince hisaudience that heis prosecuting forlegitimate reasons. Theargument of Blass is thus inconclusive, and I have chosen not to count this speech as a synêgoria. Lys. 30, delivered ina public action of unknown type against Nikomachos, was heard by a dikastêrion. The speech was regarded as a synêgoria by Blass (1887: 446), andinthetext it is indeed indicated that thespeaker operated aspart of a team of katêgoroi (30.34). Two further points can be made in favour of classifying this speech asa synêgoria: oneisthatthespeech contains nosystematic diêgêsis section, which maysuggest that a sustained narrative hadalready beenprovided bya previousspeaker; theother is that thespeech (35 paragraphs with only oneinterruption by witnesses) seems remarkably short for a main prosecution speech in a public action thatwould havebeenheard overanentire court day.There canbelittle doubt that the speaker wasnotthe only prosecutor whoparticipated in the case against Nikomachos; but since his formal position in the team cannot be ascertained, his speech hasnotbeen included inthecollection of synêgoriai above.39 Isaios 5, delivered in a dikê of unknown type, was classified as a synêgoria by Todd. It is doubtful whether the speaker appeared as a synêgoros or as main litigant, and neither Blass nor Lavency discussed the possibility that the speech had been preceded by a contribution from another litigant. The speaker does mention a large number of relatives whohave anactive interest in the outcome of thecase, butit is unclear whohadtaken the initiative to prosecute. There are, however, three indications that maysupport Todd’s classification of thespeech asa synêgoria. Oneis thatthespeaker refers twice (5.2, 12)to hiscousin ϕ ισ η ό δ ο τ ο ςοὑτο as ‘this manKephisodotos here’(Κ ί). This use of the pronoun σ indicates that Kephisodotos was present in court, and it may further be taken to

39 The speech has been discussed in detail in Todd (1996), whoadopts a sceptical line towards Blass’suggestion, characterizing it as ‘a type of explanation which wassupremely popular in the second half of the nineteenth century’(1996: 114). While Todd has a fair point in regard to thenineteenth-century habit of solving problems bytampering withtheevidence (e.g. byemendation of passages thatwerefelttobeuncomfortable), thehighnumber of genuine synêgoriai in ourcorpus calls fora reassessment andrehabilitation of thearguments provided by Blass.

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indicate that Kephisodotos wasacting onthespeaker’s side. Moreover, Wyse (1904: 408) inferred fromthefirst person plural ἀ ν μ τ ω ό μ σ α ε (‘wehavesworn theparties’ ν oath’) in 5.2 that Kephisodotos as well as thespeaker hadtaken theoath as plain-

tiffs. Thirdly, the speech begins rather abruptly: the speaker states briefly that, since Dikaiogenes hasnotcomplied withtheterms of a previous settlement, hissurety has nowbeen taken tocourt (5.1), andhehashisfirst piece of evidence, theantômosia, read outalready in the second paragraph of the speech. This maybe taken to indicate that a previous speaker hadalready delivered the appropriate flattery of the

audience andset the agenda.40 However, Isaios 3 and9, which are definitely notsynêgoriai, also lack proper prooimia: in both cases the speakers jump straight into thediêgêsis section. Kennedy (1963: 145) noted that in some of Isaios’speeches ‘the conventional type of prooimion is discarded for direct confrontation of the points at issue.’41 In fact, Isaios wasnot the only logographer to resort to this tactic: in his Π ρ ὶ ε 228 Hermogenes pointed outthat it wasa characteristic of ‘pure style’ Ἰ δ εῶ ν 227– to omit theprooimion andstart directly from the facts of the case. Hecites Dem. 41.1 and56.1asexamples andmakes theobservation thatthis stylistic phenomenon is widespread in private speeches. Dionysios of Halikarnassos drewattention to the same feature in some of Lysias’speeches (Lysias 17). Forthatreason it would be illadvised to ascribe too much significance to the missing prooimion in Isaios 5. As for the use of the first person plural ‘wehave sworn the parties’oath’, it does notallow usto decide whether it wasourspeaker orhisrelative Kephisodotos who wasthe main litigant; indeed, wecannot even rule outthat bothof them were (see Chapter 3: 2a). I therefore follow Lavency in omitting the speech from mylist of synêgoriai, although the question must still be left open. Dem. 56 wasdelivered ina private action of unknown type, andinthis speech, too, the speaker begins in medias res (56.1): Ἱhave a share in this loan, judges.’ (κ ο ιν ω ν ό ιτ ο μ ῦδα α ςεἰμ τ ν ο είσ ,ὦ ρ ςτούτ υ ο ἄ ν ε δ ςδικα σ τ α ί). Blass (1893: 584) accordingly suggested that Dareios spoke assynêgoros forPamphilos, whose name wasonthelending contract andwho,forthatreason, wasthemainparty tothedikê. InBlass’view, Dareios intervened assynêgoros inthecurrent action because Pamphilos wasunable to conduct his owncase adequately; andhe adds that this must have beencommon practice inmercantile suits, since manytradesmen were metics someof whomdidnotspeak Greek properly (1893: 584n.3). Carey andReid(1985: 198) followed Blass in suggesting that Dem. 56 is in fact a synêgoria, and that 209 Pamphilos hadassumed formal responsibility for the action (but see 1985: 208– where they refer to Dareios as legal initiator).42 The opening sentence ‘I have a stake in this loan’certainly suggests that the judges knowby nowwhich loan the speaker is referring to. It is a reasonable inference that they would have received this information from a previous speech, per-

58, III Beil. 86). Schaefer (1856– 40 Cf. the observation made in Schol. Dem. 22.1b (Dilts 1983– IV: 122) carried the argument too far in theopposite direction, whenheargued that Dem. 25 could notbea genuine synêgoria onthegrounds thatit contained aprooimion. 679). 41 Cf. Isaios 11.1 with Wyse’s comment (1904: 678– 183). 42 Fora different interpretation, see E.Cohen (1992: 182–

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haps a brief one, that hadbeen delivered by Pamphilos himself. But there is an alternative interpretation: thejudges mayhave learnt thebasic facts of thecase from theegklêma, which would havebeenreadoutbythecourt attendant atthebeginning of the hearing (Lipsius [1905–15: 904– 905]). Forthat reason the speech cannot be classified as a synêgoria with certainty, although it must be counted as a highly plausible candidate. [Dem.] 58 wasdelivered in anendeixis against Theokrines, andthe speech was classified as a synêgoria byTodd. Although the speaker gives the impression that he is speaking onbehalf of hisatimos father (58.1– 5), it is clear that the speaker himself wasresponsible for bringing the endeixis. According to the speaker, his father haddrafted the writ of the endeixis andgiven it to his son, so that the latter could proceed by taking thecase to court (58.5).43 The speech is thus not a synêgoria. To sumup: the list of synêgoriai that will provide an important part of the empirical basis of the present work is the following: Lys. [6], 13, 14, 15, 27; Dem. 20, 22, [59]; Hyp. 4 (public prosecution); Lys. 5, [20]; Dem. 18; Hyp. 3, ὑ π ρΛ ὲ υ κ ό ϕ ρο ν ο ςβ( public defence); Lys. 32; Isaios 6; Isokr. 21; Dem. 36, [44] (private prosecution); Isaios 2, 12(private?); Dem. 29, 34 (private defence); Isaios 4; [Dem.] 43 (diadikasia). ᾽ Anadditional sixspeeches weredelivered byelected prosecutors (Dem. 25, [26]; Hyp. 1; Dein. 1,2 and3), andthese speeches all appear to have worked as supplements tocontributions byprevious speakers. It mayturnoutthatthere areyet more synêgoriai among the texts in ourcorpus of forensic oratory; butin order to avoid circular arguments I havepreferred toerrontheside of caution.44 Inanycase, the list of synêgoriai setoutabove constitutes anastonishing third of oursurviving γ ω ν κ ν τ α ν ϕ τ τ ο ῶ ιν α δ ο τ ο ν ύ τ υ ν ό ο ὴ τ ὲτ γ υ π ν εγ η ρ ῶ ἔρ ά ῖα ίσ ερ ὑ ὶτ ν ,δ μ ν σ κ ιό ε ιν ὸπ λ ο ο ῖο ν ρ ά ρμ ο γ ψ ι. α ή τ κ α ῦ ςε ω ἰςτ δ ειξ ε ν ρτα ν ἔν ἔδ ὴ ὁπ α τ π ε ιν 44 In addition to Lys. 28, 29, 30; Isaios 5; andDem. 56 discussed above, Lys. 22 is a further synegorial suspect. Lys. 22 wasdelivered ina public action initiated intheboulê, andit can be inferred fromthespeaker’s account of theprocedures inthat forum thathehadnotbeenresponsible for bringing the conduct of the corndealers to the attention of the prytaneis in the first instance (22.2). Hemayhave participated as a volunteer (22.1) member of a larger team of prosecutors, someofwhommayhavebeenacting exofficio asmembers of theboulê. A further indication thathewasnotthefirst onetospeak maybefound in22.6 where thespeaker refers to μ ν ρ εσ τ εθ ὸ χ α ό μ α μ ῖνπ a lawthat must already have been read outto thejudges (ἡ ρὑ ε ῖςγ ὰ ν υ ν σ ω μ ν ῶ ε ϕ ρ ῖσ η ο θ δ ι). α έ ν τ τ ν α ν ῶ π ό ἐ ῇ λ ρ κ εύ ή ο ε ν ιπ τ ε α λ ιμ είω γ μ ο ν σ ῖτ ,ὅ ο ο ν π ςἀ π α ν ό τ εν Inthepreceding paragraphs, however, there is noplace where sucha citation would fit in, andit is possible that thelawhadbeenpresented anddiscussed bya previous katêgoros. Likewise, the fact that the speech progresses seamlessly from theprooimion to the argumentative section without a systematic diêgêsis is another indication that thespeech worked as a supplementary contribution. Like Lys. 30, Lys. 22 is inanycase a remarkably brief contribution if it is kept in mind that it wasdelivered in a public action to which anentire court day would have been allocated. Furthermore, as it has been pointed out to me, the case of [Dem.] 59, in which Apollodoros sets out by representing himself as a synêgoros butends his speech by referring to himself as the main prosecutor, mayindicate that weshould be mistrustful even of speakers whoclaim tohave taken full legal responsibility as prosecutors. If that is correct, this turns each andevery oneof ourpublic prosecution speeches into a potential synêgoria! Inthecontext of the present work, however, it is preferable to play safe and leave such speeches out of the

43

discussion.

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speeches delivered in legal actions heard by the Athenian dikastêria. This is in itself an important argument in favour of regarding the use of supporting speakers as anything but exceptional, and this claim will be backed by additional evidence in Section 3 of this chapter. Before that discussion is resumed, however, it must be asked to whatextent thepractice wasrecognized andregulated byAthenian legislation.

2. Legal regulations Three lawssurvive which areknown tohaveregulated theappearance of supporting speakers in court. Oneof these employs the term synêgoros, theother twoseem to have used the word syndikos. Athenian legal terminology is notoriously difficult for modern scholars to deal with, andtheextent to which theAthenians canbe said to have employed technical legal terms remains a bone of contention. At one level it is fair to saythat the Athenians diddevelop a technical vocabulary, particularly in the area of procedure: for example, when a law specified that transgressors should be prosecuted by a graphê to the thesmothetai it is assumed that the addressees of the lawtext would knowprecisely whattheprocedure of graphê entailed in practice, andhowthat procedure would differ from, say, anendeixis or an eisangelia to the Assembly. Likewise, the Athenians did not find it necessary to spell outthemeaning of thephrase common (but bynomeans universal) inlegislation relating to various types of public action that prosecution may be brought ‘by ο υ λ ό the one whowants from among the Athenians for whomthis is possible’(ὁβ μ εν ο ςτ η ν α ίω ῶ ν θ ο ν Ἀ ἷςἔ ). Here, too, it is taken forgranted that there will ιν τ ξ εσ be nodoubt as to whowould belong in thecategory of citizens permitted to bring suchactions; butthemodern reader is left withtheproblem of having todecode the message byresorting toother evidence forvolunteer prosecution inpublic actions.45 Ontheother hand, legal terminology wasnotusedwiththelevel of consistency or precision that a modern observer might expect. For example, a word such as graphê would undoubtedly have been understood to denote a specific category of public action whenthewordwasusedinthetext of a particular piece of legislation; butthe word itself carried a range of other meanings as well, including that of ‘writ’ which could also be used to denote the document forming the basis of a private action, a dikê (e.g. Ant. 1.2). Theprecise meaning of anygiven term would depend toa large extent onthecontext inwhich it wasused, andthusnotermcanbestudied in isolation. The Athenians, indeed, were fully aware that a litigant could widen the scope of interpretation of a piece of legislation considerably in order to support a

45 Such decoding is far from straightforward. Wecanbe reasonably sure that whenit occurs ina lawtext theclause is ineffect excluding non-citizens, women, minors andcitizens whowould beprevented from initiating sucha legal action because of full orpartial atimia. However, there is more doubt as to whether, insome procedures, further restrictions mayhave applied, which happen to be unknown to us: forexample, weare notin a position completely to dismiss the possibility that the initiation of certain types of public action was restricted to citizens over thirty years of age.

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particular line of argument, if he cited only part of the lawwithout indicating its original context. Demosthenes criticizes Aischines for employing precisely this tactic (18.121); but Demosthenes’ criticism should not lead us to believe that Aischines had necessarily overstepped the mark. Citing a non-existent law was a punishable offence, butpartial citation of a written statute wasnot.46 Even when a term is used in a well-defined context, serious problems of interpretation still remain. As hasoften beenobserved bymodern scholars, thefact that Athenian laws hardly ever provided definitions of the terminology which they used meant that it would be left to the court in each individual case to decide on what would be anacceptable interpretation of a given term.47 Forexample, whenjudging anaction for‘proposal of anunsuitable law’(graphê nomon mê epitêdeion theinai) the court would have to decide if the law that had been proposed by the defendant would qualify as ‘unsuitable’ or not. Each of the judges would have to make uphisownmindastowhat, inhisopinion, theadjective ‘unsuitable’meant andwhether it applied to theparticular case that hewashearing. Inthis hewould havetorely onhisownperception ofthesemantic range andboundaries of the word ‘unsuitable’, andhis interpretation of the adjective would depend first andforemost on howthe wordwasused in everyday language. The litigants would often attempt topresent their audience withtheir owninterpretations, narrowing or expanding the definition of particular terms as it suited their general line of argument.48 The individual dikastês would have to rely entirely

46 See [Dem.] 26.24, in which it is claimed that the death penalty wasimposed for citing a non30 Carey (1994c: 102) hasdrawn attention to the existent law. In connection with Lys. 1.28– wayin which litigants could usepartial citations of statutes as a rhetorical device. 365). Scholars 47 This point was made forcefully by Ruschenbusch in 1957 (repr. 1968b: 362– maydisagree with his pessimistic assessment (1968b: 364) that ‘the arbitrary decisions of the

48

judges replaced the law as the highest legal principle (Rechtsnorm)’ and debate the level of arbitrariness inlegal decisions fromthepoint of viewof theAthenian judges (e.g. Wolff [1964: 32]); yet 17], [1980: 563– 564], Meyer-Laurin [1965], Meinecke [1971], Gehrke [1995: 30– 15– Ruschenbusch’s observations in this article have remained fundamental forall subsequent research on Athenian law. Recently, Hillgruber hasadvocated a less pessimistic stand than that taken byRuschenbusch, while still drawing attention to thewayinwhich litigants could manipulate both their account of thespecific case inwhich they were involved andthemeaning of the 120]. laws through their rhetorical interpretations of the wording of the statutes [1988: 116– Hillgruber concludes that it must have been seen as important to the litigants as well as to the judges that the case appeared to fit’the laws (and thus he adopts a position resembling that of 357]); but‘that there wasconsiderable room formanipulation of thestatMeinecke [1971: 356– utes themselves. For an example of such an attempt by a litigant to provide an interpretation of the word mê 70, in which the speaker tries to establish a working definition of epitêdeios, see Dem. 24.68– the word by describing its opposite, a lawwhich is correctly framed andwhich will benefit the θ ή ε ι). He lists a number of λ π ῷ ατ τ ν ο λ έλ polis (τ ινμ ε ίσ ο ν ὸ νὀρθ ὶσυ α μ νκ ο ῶ ςἔχον τ ανό features which, in his opinion, are fundamental characteristics of good legislation and then undertakes to demonstrate that Timokrates’ lawdoes notpossess anyof these. The definition offered is highly subjective andit should notlead themodern reader to believe that thepassage can be used by us as an authoritative explanation of the meaning of the expression nomos mê epitêdeios. In fact, we have no idea of the court’s reaction to the speaker’s exegesis on this particular occasion, in part because the outcome of the trial is unknown. But even in those few

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onhisownjudgement whendeciding between thedifferent interpretations of a lawtext offered by the opposing parties. There would be noother authority present in court to instruct him on which of the opposing definitions was the ‘correct’ one, which meant that thelitigants were free topushtheir interpretations of thewords in a legal text to the limits of what would be perceived as possible within the confines

of ordinary

language.49 Neither thepersonal interpretation of thelawtext arrived atbyindividual judges northecollective decision of thecourt would be recorded for future consultation in parallel cases. Thus, there wasnoformal wayin which court decisions in individual cases could contribute cumulatively to the creation of narrow legal definitions of particular words usedincurrent legislation. Forthat reason, a wordsuchasepitêdeios (‘suitable’) could never acquire a precise technical legal sense that would differ radically from the way in which the word was used by the Athenian in the street in a non-legal context. These considerations will inform the following discussion of legislation pertaining to theuseof supporting speakers incourt. The surviving written statutes that contain clauses mentioning supporting speakers are all cited bylitigants as part of a wider argumentation. In some instances the litigants clearly are not citing the lawtext verbatim, andit is therefore quite likely that they mayhave rephrased the text considerably to suit specific rhetorical purposes. Moreover, because of the lack of narrow technical definitions of Athenian legal concepts, weshould expect a terminological overlap between the various designations applied to supporting speakers acting in thecourts. The noun syndikos andthe verb syndikein are applied regularly to those who represent an association in court: thepolis as a whole as well as its civic subdivisions. The persons elected to speak incourt onbehalf of a deme or another kind of association were sometimes referred to as syndikoi, and sometimes as katêgoroi whenthey acted asprosecutors onbehalf of thegroup.50 Thequestion whether such associations were inanysense ‘juridical persons’is a vexed one (Finley 1952: 88–

weknowthata forensic speech hadindeed succeeded inpersuading thejudges, we donotknowwhathadswayed thejudges tovote inits favour. Thejudges voted fora case inits entirety, andtheexegesis of thelawthathadprovided thebasis fora given legal action wasonly part of the argument with which a speaker tried to win thejudges over to his side. On this problem ingeneral, see e.g. Wolff (1969) and(1971). 49 This point hasalso beenmadee.g. byHillgruber (1988: 116). Even ina modern legal system, where professional judges control the proceedings in court, the participation by laymen in the legal process is held to provide a brake onthedevelopment of anoverly technical legal terminology. Thus inhissummary of thearguments forandagainst therôle played bylayjudges and juries in Danish criminal justice, Gammeltoft-Hansen notes (1998: 120): ‘Finally it has been that thepresence of layjudges is counteracting probably withsomejustification – pointed out– anunfortunate andunnecessary professionalism, e.g. in avoiding thatjuridical terminology is used in a waythat renders the proceedings all butincomprehensible to the defendant andthe audience’(mytranslation, G.-H.’s italics). ν δ ύ ικ ο ι), see also Whitehead γ ρ ο ή ο ι), IG II2 1196 and 1197 (σ α τ 50 Ath. Pol. 42.1, IG II2 1205 (κ (1986: 128– 129). For the useof the twoterms syndikos andsynêgoros, see Lavency (1964: 84 cases where

n.1).

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100). Someevidence suggests thatthemembers ofgenê, phratries, anddemes could atleast beconfronted incourt asgroups; whether theycould also bring prosecutions collectively is far more doubtful, andI shall return to this question in Chapter 3.51 Thephyletai whowere elected as supporters of a fellow-member on trial are called syndikoi in Dem. 23.206, andinhisdefence speech Andokides uses theverb

syndikein whencalling uponhis supporting speakers. Onedifference between syndikoi andsynêgoroi mayhavebeenthatelected syndikoi werenormally perceived as the voice of anassociation, i.e. theentire polis, a phylê, or a deme, while the term synêgoros hada broader application which included those who, in noofficial capacity, threw in their personal prestige in support of anindividual litigant. However, asnoted above, these differences interminology should notbepressed too hard. For example, the elected speakers whodefended Leptines’lawagainst a 153. Yet inDem. newproposal arereferred toassyndikoi inDem.20.146 and152– 24.36 the term synêgoros is applied to a person whohadbeen elected by the Assembly to defend anexisting lawin a nomothesia procedure. In the lawonnomothesia 23, such elected speakers are referred to as ‘co-pleaders who cited in Dem. 24.20– will be defending the laws’(ο μ εν η ο ιτ ἱσυνα ό σ ο ο γ ις ῖςνόμ ). Hyp. 3.12 also π ο ο λ shows that the terminology wasnotapplied consistently to denote elected supporters: heretheelected phyletai arecalled synêgoroi, sothedistinction between thetwo types ofco-pleader cannot havebeenclear-cut. This impression isfurther confirmed by the four instances where supporting speakers in private suits are said to be syndikoi andto syndikein: Dem. 29.23, 32.12, 34.12, andIsaios 4.3.52 Since there wasa considerable overlap intheapplication of thetwoterms, it is likely that laws regulating the appearance of syndikoi could easily be extended by litigants to cover synêgoroi as well, andvice versa, whenever this suited their rhetorical purposes. Whatconfuses matters evenmore is that there were twoboards of 800), cf. Harrison (1971: 84). Todd(1993: 297 with n. 14)argues 51 Thus Lipsius (1905–15: 799– that ‘weshould be wary of applying to them or to anyother group in Athens the language of . In note 14hestates thereason forhiscaution, namely that whensuing a “ corporate bodies” modem corporation’ an opposing litigant must always sue andconfront in court the officers currently in charge of the corporation. The current officers are not necessarily identical with 36) has 13and35– those whowere incharge whenthedispute began. Recently Jones (1999: 12– commented onthis problem. Although heaccepts thecommunis opinio that theGreeks didnot operate witha concept corresponding to themodern institution of abstract juridical persons, he points out(1999: 12) that ‘nothing prevented themembers of that same association from figuringasparties toa legal proceedings, andthis mayhave occurred withsome frequency’. While it is in keeping with Athenian principles that officers (e.g. demarchs) were held personally responsible fortheir conduct inoffice, andthat a current demarch could notbesued foroffences

52

for which hispredecessor wasresponsible, there were cases where individuals confronted the members of such groups collectively, whose case waspleaded bylegal representatives elected specifically forthat purpose. A citizen whohadbeenstruck off thedemeregister would have to confront representatives of theentire deme, notjust thedemarch whohappened to be inoffice whentherejection took place: sucha situation is referred to in Isaios 12.11 where thespeaker . See ν μ τ ο ῶ η τ ν ν ῶ δ ὸ ὸκοιν claims that his brother hadsued thedemarch of Erchia along withτ 130). also Whitehead (1986: 128– See also Bonner andSmith (1938: 8) andLavency (1964: 84 n. 1),whodiscussed theterminology andarrived at thesame conclusion.

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officials in Athens known as syndikoi andsynêgoroi respectively. The board of syndikoi was apparently relatively short-lived, whereas the board of synêgoroi who assisted the logistai in connection with euthynai seems to have existed throughout the period for which we have detailed information.53 Both boards may have had functions that included pleading incourt. It is generally assumed that thesynêgoroi mentioned inAth.Pol. 54.2 acted asprosecutors inconnection withtheannual auditing of outgoing magistrates.54 Less is known about the function of the syndikoi. According to Isaios fr. XII (Thalheim) they received confiscated property (π ρ ὸ ςο μ ὓ ευ η μ ςτ ό ὰ δ εν α ἀ π εϕ εέρ ). They are mentioned in Lys. 16.7, 17.10, 18.26 and19.32. It appears from Lys. τ ο 7 that they handled the repayments of state loans (κ 16.6– α τ α σ τ ά σ εις ) owed by persons who had served in the cavalry. They were involved in the law-suits in which Lys. 17, 18, and 19 were delivered, and which concerned confiscated property.55 Kahrstedt (RE s.v. σ ύ ν δ ικ ο ) claimed that in such suits the board of syndikoi spoke ς in court on behalf of the polis.56 However, there is evidence (not discussed by Kahrstedt) which suggests thatthesyndikoi mayhavepresided overrather thanpleadedinthecases known tous,andthis wastheconclusion arrived atbyGernet (1926: 35).57 That the syndikoi presided rather than pleaded 18) and Harrison (1971: 34– maybe inferred from Lys. 18, a defence speech delivered in anapographê. Poliochos wasresponsible fortheprosecution (Lys. 18.13), andthesyndikoi areappealed to in 18.26. It is unlikely that the latter were connected with the prosecution: the speaker appeals to the syndikoi as neutral officials whoought notto side with the speaker’s opponents. These twoboards of officials will notbethemainconcern of this section. Fortunately, they are fairly easy to recognize anddistinguish from other types of synêgoros andsyndikos. The words syndikos andsynêgoros are both used without any apparent difference inmeaning in Athenian defixiones (lead ‘curse tablets’), which will be referred to in more detail below inSection 3. Since thetwowords could be used interchangeably whencarrying themeaning ‘joint speaker incourt’, thethree known laws regulating the activities of syndikoi andsynêgoroi will be treated together in the following paragraphs. 53 Ath. Pol. 54.2. 598) 199) andRhodes (1993: 597– 54 Fortheboard of synêgoroi, seee.g. MacDowell (1971: 198– with references to earlier discussions. 7 58). Lys. 16.6– 55 For thekatastasis inconnection with thecavalry, see Bugh (1988: 53 and56– is discussed on pp.56 and 130. Bugh (1988: 130) follows Bonner andSmith (1938, vol. 2: 38) in identifying these syndikoi with the officials whohandled confiscated property. ιerscheinen fungierend inmehreren Reden desLysias, natürlich nicht als Geο ν δ ικ 56 ‘Diese σ ύ richtsvorstand, sondern als Vertreter derstaatlichen Interessen vorGericht, wiees demNamen ικ ο δ ςentspricht...’cf. Kahrstedt (1936: 223). ν σ ύ υ ν ο ῦχρό ο υτ ο ι, ἐκείν α μ ῖνεἶν ο υ υ ςἡ ο ςεὔν ίκ δ ο ὺ υ α ςσυν ο ςτ 57 Lys. 18.26: ἀ δ ὶτούτ ιῶ ὲκ ξ ίσ ρ α ρ ςἀ τ ε μ ό ςἄνδ η εκ λ ω ν σ λ θ ο π έν ᾽ἐ κτ ε ῆ α ὶτ ία τ ὰ ςἀ τ ςκ τ ω κ ό α ρ ίδ επ ςοὐσ ο ςπ τ τ ,ὄ α ςἐκπ ς ν α ι θ εδυνηθῆ ῄ κ σ ν τ ο α ο ῖςηὔχεσ ν ε ς α ο ,κ ὶτ ῖςθ θ ο μ νἀπ ῶ ο α ιτ ᾽εἶν ὺ ρὑ ςὑ π ὲ ίζ τ ε τ ο υ ςἐνομ ι. See also Lys. 17.10 for a similar appeal to thesyndikoi. For α ν ῦ ο δ ο π ἀ ν ω ο ῖςἐ τ ιν ξἐκείν ρ χ ά a parallel instance ofthepresiding magistrates being admonished that they should stay neutral, see Lys. 15.1.

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1) In his speech against Timarchos Aischines paraphrases prostitutes from a number of political activities (1.19):

a lawbanning male

If anAthenian prostitutes himself, it shall notbepossible for himtobecome one of the Nine Archons (I think because such a magistrate wears a wreath) nor shall he hold anypriesthood, because his body is not clean either; nor, says the lawgiver, shall he be a syndikos for thepublic, nor hold anymagistracy at any time, either in Athens or abroad, whether filled by lot or by election. ... η σ ίν η ή ῃ , ἑτα ν α σ ,μ ιςἈθ ντ ίω ὴἐξέσ ἄ ,ϕ ν ιρ ῷ τ τ ω ῶ α ὐ τ νἐν ν έ α ρ ἀ χ ό ν τ ω ν γ εν έσ θ α ι, ὅ τ ϕ ιοἶμ η α ν α ιστεϕ η ᾽ἱερω ή δ ρ ,μ ο ρ ό χ σ ςἡἀ η νἱερώ ύ ν σ α σ θ α ι, ὡ ς η ῷ μ σ ρ ο α δ ὐ δ ώ θ ὲκα εύ τ α ὲσυ ι, μ η μ ο η ῷ ν σ τ ιτ δ ο ν η ί, τ δ σ ικ ά τ ω σ ,ϕ ίῳ η δ ,μ ὲ η η δ δ ία μ μ ᾽ἔνδη ὴ έπ ρ ν ή εμ ή μ ν μ τ ρ ο τ ξ ἀ χ τ ο ά τ εὑπ ω ν ε ,μ ἀ ρ ερ ό ιο ή ν ,μ τ εκ η λ ρ ὴ ω ή τ ν μ τ εχειροτονητή ν...

· which purports to be the source of Aischines’ The law-text cited in Aisch. 1.21, quotation, was rejected as spurious by Drerup (1898: 306– 307), and there is no decisive wayof telling howclose Aischines’paraphrase came to the original wording of the law. There is good reason for treating this paraphrase with caution, because of the wayin which it is used by Aischines in his argumentation. Aischines makes useof this lawaspart of a wider demonstration of howthelawsof thepolis banned citizens whohadsoldtheir bodies fromtaking anactive part inallaspects of political life. The lawis a crucial element in thefirst part of hisprosecution speech, in which heattempts toestablish thelegal basis of hiscase against Timarchos through a seemingly systematic exposition of regulations pertaining to theorderly conduct andmental disposition (sôphrosynê) ofthecitizens. Hisultimate aimis toshowthat Timarchos hasbeen inbreach of this andother laws, because hehascombined his life as a prostitute with that of a politically active citizen. We are left in nodoubt whatsoever from Aichines’paraphrase of the lawthat oneof thelatest transgressions committed byTimarchos is theinitiation of a prosecution against Aischines forambassadorial misconduct: thephrase ‘norshall heact as anambassador, norshall hebring actions against those whohave acted asambassadors’ makes that plain to us as it must have been also to the Athenian judges. There are other indications that Aischines’ rendering of the lawtext wasfar from verbatim. A prostitute, heclaims, wasnotallowed to ‘be a sykophant inreturn for a η δ ὲσυκοϕ α ν μ θ ισ ). Infact, neither wasanyother Athenian citizen, ω τ θ είς είτ fee’(μ ω prostitute or not, atimos or epitimos. The first part of Aischines’ list enumerates activities that were open to some or all Athenian citizens, butin which male prostitutes were not allowed to participate. It would be strange indeed if the law also

included special provisions banning prostitutes fromactivities thatwere illegal anyway. Undoubtedly Aischines, whorefers to Timarchos as a sykophant elsewhere (1.107), hasadded a personal twist to his paraphrase of thelaw, having Timarchos as his special addressee. Thepassage is nonetheless extremely important forourpurposes here, notleast because of the context in which it appears. The capacity to act as a syndikos on ό ) occurs ina list of privileges andtasks, some of σ ιο ν ὸδημ behalf of ‘thepublic’(τ them high-ranking, that were reserved for citizens in full possession of their civic

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rights. Aischines’objective is to show howTimarchos, by his self-defilement, has ineffect cuthimself off fromall public functions andduties thatwere inthemselves symbolic of civic dignity.58 The passage suggests, then, that it was a citizen’s privilege to appear as a syndikos on behalf of ‘the public’, τ μ ὸδη ό σ ιο ν . Because of the lack of precise definitions of such terminology, it cannot be ruled outthat the expression usedby Aischines could be extended to cover all supporting prosecutors (be they referred to as katêgoroi, syndikoi, orsynêgoroi) inpublic actions of the kind where thepolis could be construed as theinjured party. The question that presents itself as a result is whether non-citizens were indeed preventedbylawaswell ascustom fromparticipating inpublic actions assupporting speak-

ers.

The widest possible interpretation of Aischines’ paraphrase suggests that the function reserved for citizens was that of acting as the voice of the polis in legal proceedings in which thepolis as a whole hada stake. But modern scholars have gone even further than this. Kahrstedt (1934: 129) included theright to appear as a synêgoros in any capacity among the items listed in his chapter ‘Inhalt des Bürgerrechts’, withtheclear implication that non-citizens were notallowed toassume this function; nomatter whether their support wasgiven to anindividual citizen or to a prosecutor whoclaimed to be conducting hiscase in theinterest of thecommunity as a whole. In this Kahrstedt disagreed with Bonner (1905: 83), who had adduced Dem. 49.22 as proof that non-citizens could act as synêgoroi, since this passage relates howthetwopowerful foreigners, Iason andAlketas, cametoAthens toassist thegeneral Timotheos whenthelatter wasontrial forhislife. Kahrstedt’s viewhas prevailed; Dover (1968: 150) andmanyothers have accepted theview that noforeigner wasallowed to actas a synêgoros inanylegal action whatsoever, let alone a public one.59 But this assumption conflicts with at least two attestations of noncitizen synêgoroi whoaddressed the court in public actions. When Aischines delivered his defence-speech in the euthyna brought by Demosthenes in 343 he wassupported by a number of Boiotian andPhokian synêgoroi (Aisch. 2.142–143). Aischines explicitly refers to them as such, andalthough their synêgoria wasdelivered before Aischines hadfinished hisspeech, there is noreason for doubting that they appeared asjoint pleaders. Their speaking rôle sets them apart from Aischines’witnesses whowould notaddress thecourt intheir ownwords but just confirm the testimony read outby the court attendant.60 This shows that non58

59 60

Common to most of the functions listed by Aischines is that theperson whodischarged them wore a wreath, symbolizing inter alia that the wearer wasacting or speaking onbehalf of the community as a whole. Theperson whoaddressed theAssembly would weara wreath while he spoke (Aristophanes Ekklesiazousai 131), anditssymbolic power isclear fromLyk. 1.122 where it is related that the entire boulê took off their wreaths before killing a traitor with their own ). See also Dem.21.33. ὶἀ π ν τ ε έκ ειν ο χ ειρ ά ν ο υ τ ὐ ςα τ ο ὺ η τεϕ ςσ ν μ έ ο ιελ ερ hands (π 78), Wolff (1968: 11). See e.g. Lavency (1964: 77– ρ ο ό υ η ν ς ... pace E.M. Harτ ο α ρ ισυνηγ ίμ ᾕ ν τ ῶ εςΒοιω ν τ γ ο εύ τ ε έν ςο ἱϕ εγ λ λ υ Aisch. 2.142: σ ris(1988a: 46), whoadduces Aisch. 2.143 andDem.49.22 insupport ofhiscontention thatnoncitizens wereallowed toappear aswitnesses inAthenian courts (cf. 1995: 14withn. 15). Onthe wider issue of foreigners’being accepted as witnesses I agree with Harris: Aristophanes from Olynthos is called asa witness inAisch. 2.155, andsome Olynthians testify onbehalf of Demo-

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citizens didsometimes participate as speakers in public actions in support of individual citizens standing trial. Whatismoreinteresting, however, isthatDemosthenes, acting as prosecutor inthesame action, claims that it would have beenpossible for himto enlist the support of Phokian exiles as fellow prosecutors, hadhebeen willing to paythem to appear (Dem. 19.80– 82).61 The fact that Demosthenes makes a virtue of not having asked the foreigners to assist him in his prosecution clearly indicates that this could have been envisaged as a possibility. Now, it can of course be argued that these foreigners would be allowed to appear only because the procedure employed by Demosthenes wasa euthyna. We knowthat this procedure could be initiated bynon-citizens, andit maywell be that non-citizen synêgoroi would be accepted in precisely those types of public action which metics were allowed to bring.62 However, it is unlikely that metics could participate in eisangeliai to the Assembly unless they received express permission from the boulê to address the Assembly.63 Yet, as noted above, whenthe general Timotheos wasimpeached byKallistratos of Aphidna andIphikrates of Rhamnous in 373, he was supported by Iason of Pherai and Alketas of Epeiros.64 The passage, Dem.49.22, referred tobyBonner (1905: 83) asproof that foreigners were allowed to appear assynêgoroi, is inconclusive: there it is stated only thatthey hadarrived in η η θ σ ο όν ). We cannot tell from this ῷ τ ω να Athens to ‘assist him at his trial’(β ὐ τ passage alone whether their assistance wasrendered in the form of testimony or actual pleading. ButinDem.49.10 wearetoldthatIason andAlketas appeared with Timotheos’friends andrelatives to beghimoff (ἐ ), anact which must ν ω μ έν ο υ ιτ α ξ have involved their addressing the court with words of their own.65 These examples call notonly for a modification of the view of Kahrstedt and others that it wasa citizen’s privilege to act as supporting speaker in court in any capacity; it also suggests that the widest possible interpretation of the expression ‘syndikein tôidêmosiôi’ in Aischines’paraphrase wasnotapplied inpractice.66 We

61 62 63

64 65

66

sthenes in 19.146. See Todd(1990a: 27 n. 14) for further examples. Thestatus of theBoiotians andOlynthians waspresumably ambiguous: theyhadbeengranted ateleia toumetoikiou (White16), which mayhave affected their standing inregard to theAthenian adminishead 1977: 15– tration ofjustice, butthey were notgiven citizenship, pace Todd (1990a: 27 n. 14). When Aisch. 2 wasdelivered, witnesses didnottestify orally, so thegapbetween synêgoroi andwitnesses had widened considerably. See Section 5 of this chapter. α τ ᾽οὐδ ρ τ ν ᾽ἂ α ά σ ς α νἔδ ε ν γ ιπ ὶοὐ ο ω κ ω ρἔγ δ νὥ ὲ σ τ εμ ὰ ὐγ The passage in Dem. 19.81: ο indicates thatDemosthenes comments onthepossibility of havα ιν θ σ ν ό επ π ο ἷα ν ᾶ ο ὶβ θ υ α τ ἐν ingtheexiles as vocal supporters, rather thansilent witnesses. Themostfamous metic prosecutor ina euthyna is Lysias, although itcannot bedetermined with absolute certainty whether he carried responsibility for the action (see Chapter 3: 2b on this problem). See further Chapter 1 n. 10forreferences to themodern debate. Hansen (1975: 26), butsee Rhodes (1979: 109). Dem.49.10, 22. Seealso Hansen (1975: 91) cat. no.80. The rôle of such defence synêgoroi will be discussed in detail in Chapter 4: 3. Apart from 978, the verb (ἐ μ α ιis never used to denote the weeping and )α ἰτ ξ έο Aristophanes Wasps 977– wailing by women andchildren butseems to refer exclusively to articulate pleading by adult men.Onthis terminology, see further Chapter 5: 3. Another passage that might be taken to indicate that foreigners could indeed mount the bêma ν ω π νἀνθρώ ἐᾶ α η δ έν νμ ιο α ντ ὸδίκ ῶ μ α θὑ ὶτοῦ in support of a litigant is Aisch. 3.7: ... κ

᾽

2. Legal regulations

49

are left with the problem of deciding what type of synegorial activity would be perceived as a citizen’s prerogative. If it is assumed that the wording ‘syndikein tôi dêmosiôi’ was indeed used by the legislator in the lawtext that formed the basis of

Aischines’paraphrase, there area number of possible interpretations. One interpretation is that the clause refers to the board of magistrates called syndikoi mentioned atthebeginning of this section. Intheearly decades of thefourth century the syndikoi presumably presided over law-suits arising from apographai andother matters involving the public treasury. The wording tôi dêmosiôi (which canmean ‘treasury’as well as ‘thepublic’or ‘community’) maybea further indication that this wasthe original meaning of the law; this would also explain whythe ban on serving as a syndikos is found among other provisions concerning magistracies andpriesthoods. If the board of syndikoi wasindeed whattheoriginal legislator had had in mind, this would not have worried Athenian litigants in the midfourth century. The lawon prostitution would still stand, even after the board of syndikoi haddisappeared; andlater litigants would be free to usethetext for other rhetorical purposes, so long as the activities they discussed could reasonably be construed as ‘acting as supporting speaker onbehalf of the public’. Another, moreplausible, interpretation is thattheclause refers tothose syndikoi whowere elected by the Assembly to represent thepolis in certain public actions such as apophaseis or in disputes involving other poleis. In themid-fourth century, forexample, oneor several syndikoi wereelected to represent thepolis ina dispute over the sanctuary in Delos.67

It is safe toassume that, nomatter whatitsoriginal meaning was,thelawwould be understood andinterpreted in a contemporary context by later litigants andby their audiences. There can be little doubt that the law allowed a broad range of interpretations andcould be applied to anysyndikos whohadbeen appointed to act as the official voice of thepolis. A citizen whohadincurred total atimia would of course be barred from all activities that involved his addressing the court in any capacity.68

ή τ ρ ετ γ ία ὰ ο η γ ν ῶ ς... μ ςτ ν σ σ ῶ εις υ ν ,ο η ὓ ξ έν ω ν ν α δ εή ετ ςἀ ή τ α τ ὰ ςτ τρ ν ῶ σ ι, μ α θ ῖσ ε ἐξ ιρ α β ιβ α ζ μ ό ά εν ο ρ ίτιν ίω εύ ω need notimply ν γ ζ η ... Theverb ἀναβιβ ε ο υ τ σ κ ιν ν ἐ ῶ ςἐκϕ δ ικ τ α σ ά β ιβ is also used todenote thepresentation of oldmothers and ζ ω ν α that theforeigners spoke: ἀ σ ε ιςsuggests thatthese foreigners didmorethan εή children insupplication; ontheother hand, δ just shedding tears andlooking miserable (see Chapter 4: 3 for further discussion). 67 Dem. 18.134. According toDemosthenes, Aischines waselected syndikos bytheAssembly, but was later rejected at the intervention of the Areiopagos. It is less likely that the lawreferred explicitly to those syndikoi whowereelected asdefenders of a challenged law, since this funcμ η ῷ ο δ /τ σ ; but ῳ ίῳ μ ή ῳ rather than σ ῷ δ ν υ δ ικ ε μ ῖντ ν ῷ ό ε ν δ ικ ῖντ υ tion was referred to as σ again it must be remembered that thephrasing of individual Athenian laws often left a wide 52) notes thewidespread use 36, 48– range of interpretations open to litigants. Crook (1995: 35– of officially appointed synêgoroi/syndikoi acting in disputes between poleis in the Hellenistic

68

period. 96 that the Athenians were notover-zealous in Hansen (1976: 62) inferred from Dem. 21.95– enforcing therule banning atimoi fromtheagora (and, byimplication, fromthecourts), butsee ρ ἐξ σ έ ὰ ιγ α ν τά MacDowell (1990: 319). Demosthenes calls theatimos Straton tothebêma: ἑσ κ ε η ῷ . Butbecause of hisatimia Straton is notallowed tospeak orlament: ἕστ τ ν α ὐ θ ε υ ο τ α ιδήπ

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The important point is that the law should not be used as evidence that only citizens could be syndikoi or synêgoroi in actions brought by individuals, be they public or private. If it is assumed that the qualification tôi dêmosiôi vel sim. was indeed part of thelaw-text, thelawcanbereconciled withtheevidence wehave for non-citizens appearing as synêgoroi on behalf of individual litigants in public actions. It is less important to determine precisely which type of publicly elected syndikos the legislators hadhadin mind when the lawon male prostitutes was first drawn

up.

2) InDem.20.152 thespeaker (presumably

Demosthenes himself)69 paraphras-

es another law in the following way:

Youhave a very good lawindeed, which has not been passed with an eye to these men, but to prevent this matter from turning into something akin to a profession andsykophantic activity for somepeople: that it shall notbepossible to act as a syndikos elected by theAssembly more than once.

᾽ἔχ μ ο ν ω ν μ ό ςὑ ῖνκα λ λ ά ῶ ς ,ο ὶμ α ὐ κ ιδ ὲκ ἐπ ὶτού τ ἔσ τ μ ο ὴ ιςτεθ ᾽ἵν α είς ,ἀ λ λ γ α ρ σ ᾽ὥ ία ᾖ ἐρ κ σ τ π ισ ε α μ ὶν ὶσυκοϕ γ α ᾶ ν ρ τ ὴ ία τ ἐξ ὸ π ,μ μ εῖν ο ή υ α π ὸτ ιὑ ο ῦ δ ἢ ἅ η θ α π τ έν α π λ ε ῖν ξ ν ο τ ο σ υ ν χ ειρ δ ικ ῆ σ α ι. Again weface theproblem thatthespeaker offers usonly a paraphrase, andthat the law from which it was derived has been lost to us. The passage forms part of a general attack onthe persons whohadbeen appointed bythe Assembly to defend Leptines’law, andit is prefaced bythestatement: T hemost important fact, which ‘ one of them has often been a applies to all the syndikoi, is that each and every syndikos in various cases on earlier occasions.’70Thus, it cannot be ruled out that the lawtext has been rephrased considerably on this specific occasion in order to provide maximum ammunition against these individuals. The paraphrase includes the wording ‘it shall not be permitted to act as a syndikos elected by the Assembly more than once’. Such elected speakers are attested in disputes where thepolis as a whole appeared as a party’confronting other poleis, where a challenged lawrequired sup-

porters in court, andin apophaseis which could be initiated by the Areiopagos on ‘ behalf of thepolis as a whole. The evidence suggests, further, that anindividual who μ έν ο ῦ ο λ α ,ἀ λ ὰκ ὶτ η ς θ γ α ῶ ντ εσ νκ π τ ῶ νἀ ερ ιν ῶ ο νἀ ω λ νἄλ ντ ῶ ν ο ό ὐμ ,ο π ῇ ν υ ν ὶσ ιω

ϕ θ έγ ξ α σ θ α ικ α ὶὀδύρασθ α ι

ϕ ο υκ α ισ ὶμ θ ὰ ο ῦτ ρ ς γ ά ο ν λ ογ α ὲ ὶἀ ν τ ίμ 69 Dion. Hal. Amm. 1.4 andperhaps · also Dein. 1.111 (κ μ ίω ν ...). TheKtesippos menο ν π ρ ο λ ν λ ῶ ω ςκ ο α α ὶΦ ὶἑτέρ υκ ο π ίπ σ τη ρΚ ο τ ὲ π ν ςὑ ο δ ίκ α έγ ςλ tioned here wasprobably thesonof Chabrias for whose sake thespeaker of Dem. 20 claims to have engaged intheaction (20.1), andit is possible that thePhormion referred tobyDeinarchos wasthe Phormion whoacted as Demosthenes’ fellow synêgoros in the trial against the lawof Leptines (20.51), rather thanPhormion theformer slave of Pasion, ashasbeenassumed e.g. by 281). But while Schaefer voiced nodoubt as to Demosthenes’active Worthington (1992: 280– 266) wasmore sceptical andpre58: I. 360), Blass (1893: 265– involvement in this trial (1856– ferred to leave thequestion open. Herejected theDeinarchos passage as a later interpolation of a scholion and, further, dismissed Deinarchos as unreliable in anycase. ύ ντο ω ν δ ίκ σ υ ν ῶ ντ ω τ ν ὰ π ά τ α ρ χ ικ ε νὑπ ὸ ά ο ιν α ὶκ νκ τ ω ν ά π ἁ ν τ ισ ο έγ ὲμ 70 Dem. 20.152: ὃδ ν . ο ν ε μ ισ α σ ν ο δ ικ ύ γ ςγέγ · ά ρ ιπ ισ τ ν ό ερ τ ό ρ ο τ ν ε τ ςπ ω ἷςἕκασ

2. Legal regulations

51

undertook to bring certain other types of public action would sometimes receive assistance from synêgoroi elected by the Assembly (or, in some instances, by the boulê); butit is notclear whether suchsynêgoroi wereseenprimarily asthesupporters of thepolis or of the individual prosecutor.71 This type of elected prosecutor will be dealt with in more detail in Chapters 3 and5. If the original lawtext that formed the basis of the paraphrase in Dem. 20.152 did in fact include the qualification elected by the Assembly’, there would be limits ‘ used by litigants as part of general attacks on to the way in which the law could be the supporting speakers of their opponents. If it didnot, andif the speaker of Dem. 20 hadadded the qualification himself in order to emphasize the relevance of the lawtotheparticular case that hewaspleading, wemustenvisage thepossibility that the meaning of the text could be extended to cover all instances where particular individuals hadappeared as supporting speakers more than once, be they elected or self-appointed. Anargument in favour of the assumption that the lawwasformulated in terms which would impose very clear limitations on its rhetorical application is that we have plenty of examples of citizens whoappeared as synêgoroi in public actions more than once, the most notorious of whom was Demosthenes himself. He is attested as a supporting speaker for Timarchos, Ktesiphon, Euthykles andmany others.72 Lykourgos, too, is known tohave beenactive several times inthis capacity, and so is Hypereides.73 Hypereides, in fact, appeared at least twice as a supporting speaker elected by the Assembly: once as a syndikos representing Athens in aninternational dispute andonce as one of the ten elected katêgoroi who acted in the apophaseis following the Harpalos affair.74 The fact that Hypereides could get away with being elected twice by the Assembly maysuggest that, in practice, the Athenians were notoverzealous in enforcing this law. This mayalso be implied in Dem. 25.13 where the speaker, whohasbeenelected bytheAssembly toactassupporting prosecutor inan endeixis, explains his reluctance as follows:

71

Elected synêgoroi are attested inanendeixis to theAssembly (Dem. 25 with thediscussion of the speech in Section 1 of this chapter) andwhat mayhave been an eisangelia or a euthyna 5, Perikles 10.6). The trial of Kimon brought against Kimon (Ath. Pol. 27.1, Plut. Kimon 14.2– 68) for a summary of prehas been the subject of an intense debate: see De Bruyn (1995: 63– vious discussions. Wecannot tell whoinitiated theaction, andnothing prevents usfromregardingtheelected prosecutors acting in this trial as a parallel to theelected synêgoroi whoassisted Lykourgos in his action against Aristogeiton. There is evidence for other actions in which prosecutors anddefendants requested synegorial assistance from their phylai, demes or other associations (e.g. Hyp. 3.12, IG II2 1258). 72 Public actions: synêgoros for Timarchos: Aisch. 1.166; for Ktesiphon: Aisch. 3.202 andpass.; 99) cat. no.96; for 52 andevidence collected in Hansen (1975: 98– for Euthykles: Aisch. 3.51– Lykourgos: Dem. 25 andAristogeiton fr. I (Müller); forPhilokrates: Aisch. 2.14; private suits: for Phanos: Dem. 29; forDareios: Dem. 56.50; andpresumably for Demon: Dem. 32.32. 73 Lykourgos: synêgoros for Ariston: Lyk. fr. X-XI (Conomis) andHyp. 2.3; for Polyeuktos Kydantides (?): Hyp. 3.12; for Polyeuktos Sphettios: Lyk. fr. IX (Conomis) andtheevidence collected byHansen (1974: 39) cat. no. 31. Among Hypereides’activities as a synêgoros were his appearances insupport ofPolyeuktos Kydantides (?) (Hyp. 3.12) andEuxenippos (Hyp. 3pass.). 74 Dem. 18.134 (see also Develin [1989: 326]), Hyp. 1 (see also Develin [1989: 405]).

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For when I observed in the Assembly meetings howyou lined meupand appointed me to undertake the prosecution of this man, I was not happy and, by Zeus and all the gods, I did not want to do it. For I wasfully aware that the person whohas engaged in such an activity before youwill also have to pay a price for this before he leaves the court. Perhaps not a price so great that he willnotice it immediately, butif heengages inmanysuchactivities anddoes not stop, he will soon know.

ρἐ ντ α γ ὰ η ῖςἐκκλ σ μ γ ὼ ᾶ ία ρ νὑ ιςὁ ῶ ςκατατάττον ἐ τ εκ ά α ρ ςμ ο ὶπ χ ειρ ιζ ο μ έν ο υ ςἐπ η ν κ ὶτ μ α ὴ ρ ία ὰ τ ν ό ν , ἠχθ γ τ ὶμ ο ὸ ν ο ύ η Δ τ ία ο υκα κ τ α ὶπ ά ν τ α ςτ ο ὺ ς ο θ η υ ν νὅ ρἠγνό ε .ο τ σ ο ιὁπ α μ ὺ ὰ ὐγ ο υ λ ο ςο ό ὐ κἐβ ιή ςτ ιτοιοῦ ᾽ὑ τ ο νπ μ ρ ῖν α ᾽εὐ θ ὺ κ ικ α χ θ ο α ὶπ ὼ τ νἀ ςα ῦ νὥ ετ ὴτηλ ο α ι. ε π θ ἰσ έρ σ τ έσ ἰδ θ α ι, ἀ ὲμ λ λἐ ν ὰ ν γ ώ σ η τ α ι, τ α ι. α χ ὺ ετ π ο λ λ οια ὰ τ κ α ὴ π ύ α ῦ ὶμ π τ ο α ιῇ ᾽ Alternatively, the lawtext mayhave been formulated very narrowly in such a way that its potential rhetorical application waslimited only to those syndikoi whohad been elected specifically to defend an existing law. It is in anycase significant that Dem. 20.152–153 is the sole known passage to refer tothis law. Manylitigants devote considerable speaking-time toattacks directed at the synêgoroi of their opponents. If it hadbeen possible to extend rhetorically the meaning of the lawtext to cover all synegorial activities, the lawwould have provided a very handy andappropriate weapon, andweshould have expected more litigants to have used it as part of such attacks. Thus, it may be concluded that the lawwasformulated in a waythat left nodoubt as to its limited scope andapplicability: thebanoniteration applied only tosupporting speakers whohadbeenelected bytheAssembly; andperhaps evenspecifically tothose whohadbeenappointed to defend a challenged law. 3) The only lawknown to uswhich seems to have applied to all categories of synêgoroi/syndikoi is the lawonbribery quoted in [Dem.] 46.26, generally accepted asgenuine.75 Thelawtext runs as follows:

If anyoneforms a conspiracy or bribes, in groups of ten, the Heliaia or any of thecourts inAthens or theboulê, giving or receiving money as a bribe, orforms a hetaireia with a view to abolishing the democracy, or receives money as a synêgoros in trials private or public, thepublic actions for these offences shall be brought before the thesmothetai.

ή ιτ τ ν θ ρ ίω ῶ ν Ἀ η ἢ δ τ ν ικ α τ σ ῶ ἡ ν λ ία ια ν ὴ τ ῃ σ ν υ δ εκ ά ζ ιἢ α τ ιςσυνιστῆ τ ν Ἐ ά ν ἑτ εία α ιρ μ εν ο μ δ εχ ή α ,ἢ ό ς τ α δ ιδ ὺ ο ςἢ ρ χ ὴ ν β ρ κ ο δ ἢ ο ίᾳ ο ἐ ὶδω τ π ὴ η υ λ ν σ ιν ν α τ α ἐ π ὶ ῃχρήμ ν ά ρ ο νλαμβ ςὢ , ἢσυνήγο υ ο ῦδήμ ο ιτ ε σ ύ λ α τ τ ῇἐπ ν ισ σ υ ὶκα ϕ σ ε ὺ ο ὸ ςθ ςτ ρ ὰ ςγρα ιτ α ἶν ὰ ε ςπ ν ω τ , τού ις μ ο ία σ η δ ιςἢ τ α ιςτ ῖςδίκ α ῖςἰδία α μ ο θ έτ α ς . MacDowell (1983: 67) hasdrawn attention to the wording in trials private or pub‘ that thelawencom), which indicates ις ία σ μ ο η δ π ὶτ ιςἢ α ῖςδίκ ιςτ α α ῖςἰδία lic’(ἐ passed all kinds of synegorial activity, including that of friends and relatives who came forward to help a litigant in a private suit. 67). 93), andMacDowell (1983: 66– 75 See Drerup (1898: 304), Lavency (1964: 91–

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Unlike the lawparaphrased in Dem. 20.152– 153, this regulation is sometimes referred to or hinted at by litigants when they attack the synêgoroi of their opponents.76 It wasforbidden to act as a synêgoros in return for money, andthelawhas often been adduced bymodern scholars asanillustration of theAthenian obsession with preventing ‘professionals’ from appearing on the legal andpolitical scene.77 This is undoubtedly a very important part of the truth, but, as will be argued in Chapter 4, the matter is more complicated than hasnormally been recognized. The three laws discussed above are the only laws pertaining to synêgoroi and syndikoi that are cited in the corpus of forensic oratory, andonly the lawquoted in [Dem.] 46.26 seems to have contained anygeneral provision concerning theuseof supporting speakers incourt. However, Calhoun assumed that a further lawdidexist which explicitly permitted the use of synêgoroi (1913: 85). He adduced two passages as evidence, Hyp. 2.10–11 and 3.10. Neither of these passages actually proves his point: both hail the –allegedly democratic –practice of allowing synêgoroi to appear in court, it is true; butthey donotwarrant the conclusion that the practice wassanctioned by law. More problematic is Hyp. 2 fr. III, which runs as follows:

Nor does the law, while giving permission to the one whowants tojoin as prosecutor ̣ against the defendants, forbid the sharing in their defence.̣ μ α έν ω τ ικ γ ο υ ]ρ ὰτ λ ο ε η ο ῖ μ μ [υ ο ό ςσ ο ὐδ]ὲ ὁν [κ ρ ιν ]ο μ έν ω ν ἐξ ύ ιδ λ ει.78 α θ ὲκω ] δίδω γ εῖσ [σ ία ο ν υ ο λ σ ι, συνα ο π

Thepassage is exceedingly difficult tointerpret, since wedonotknowtheargument which preceded it; even so, it is worth noting that the speaker does not appear to refer to a statute which explicitly permitted theappearance of synêgoroi insupport of the defendant. Since his main objective here is to defend his right to present a supporting speaker, onemight have expected that he would have cited, in positive terms, thestatute which gave himthat right –if such a statute didindeed exist. ο υ σ ία ιmaymean nomore than ‘leaves opνδίδω σ However, the phrasing ἐξ portunity for’; that is, thespeaker neednotrefer toanexplicit permission toemploy supporting prosecutors. Hemayin fact be saying nomore than that there is nostatute which forbids the enlisting of supporting speakers on either side, so the passage does notnecessarily testify totheexistence of a written lawthatregulated, ingeneral terms, the use of synêgoroi or synkatêgoroi. Another interpretation, in my opinion the most likely, is that the speaker is referring to a clause in the law relating to impeachment, the nomos eisangeltikos, which formed the basis of the action that Lykophron was fighting. It is a distinct 76 Lyk. 1.138; Dein. 1.111 (referring to Demosthenes’ activities as a paid synêgoros); [Dem.] 44.3.

11), Lavency 12), Calhoun (1913: 87), Bonner and Smith (1938: 10– 77 e.g. Bonner (1905: 11– 12), Engels (1989: 43), Hansen (1991: 180). For the words 95), Wolff (1968: 11– (1964: 93– ‘profession’and ‘professional’as inappropriate whenapplied to theancient world, see Chapter

1 n. 6.

έfollowing a negative έν... δ 78 For mytranslation of theμ iv).

statement,

see Denniston (1954:371

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possibility thatthis lawcontained aclause stipulating thatanyonewhowished could address the court as prosecutor, along the same lines as the lawquoted in Dem. 24.105. The latter lawprescribes that theEleven areto introduce theperson under arrest tothecourt (ε γ ἰσ ό ν α τ ω ν ε ἰςτ ὸ δ ικ α σ ρ τ ή ιο ), andthatanyonewhowishes is ν γ ρ είτ η ο to prosecute (κ α ω τ δ ο ὲὁβ υ μ λ εν ό ο ςο ἷςἔξεσ τ ). ιν Ananalogous example is found in [Plut.] Lives of theTenOrators 833E-F, who quotes a decree proposed by Andron andallegedly preserved byCaecilius, which defined theprocedure tobe followed against Archeptolemos, Onomakles, andAntiphon. It contains the clause ‘...the elected synêgoroi andthegenerals andothers, if anyonewishes, are to undertake theprosecution against themfor treason’(...π ρ ε ὶ έν ρ γ ο υ ο ε ρ ῖντο η ςσυνηγόρ ο ο δ υ π ὺ ο τ σ ςᾑρημ ία ςκ ςκα α ὶτ ο ο ὺ ὺ ςστρατηγ ςκ α ὶ η τ α ι). As indicated above, this example provides an analogy ἄ ο ύ λ λ λ ο υ ιςβ ,ἄ ς ντ rather than a direct parallel, insofarasthedecree applied onlytothelegal actions brought against these three specific individuals. Evenso, theexample is still important, because it shows that the Athenians sometimes found it expedient to provide opportunity for several individuals, including volunteers, to addtheir contributions to thecase for theprosecution. InChapter 3 it will beargued thatoneboulomenos didnotnecessarily constitute anupper limit, in which case theformula in Andron’s decree andin Dem. 24.105 does precisely ‘leave opportunity for’other people tocontribute to theprosecution in the court room without necessarily having hadtheir names written onthe indictment itself. But in the present context thequestion must be left open: thepassage proves neither the absence nor the existence of general legislation on multiple katêgoroi, nordoes it prove that thenomos eisangeltikos contained sucha clause. In anycase, it is significant that noother litigant is known to have referred to anygeneral legislation permitting rhetorical intervention bysynêgoroi. It is absent from the passages where onewould most expect to find it, namely those in which the litigants ask their ownsynêgoroi to come forward. Although some of the speakers introduce their supporters by asking for thejudges’approval, nospeaker ever makes anattempt todemonstrate thattheuseofsynêgoroi waswarranted bystatute. We have eight such passages in which litigants ask their synêgoroi to mount the bêma. Theyhavebeenusedasevidence thatatleast onegeneral regulation didexist which was normally observed by the litigants. The fact that some of the litigants ask for thejudges’ approval before calling their synêgoroi has been interpreted as an indication that thejudges’permission wasa procedural requirement.79 15: 908) assumed that a prosecutor might actually succeed in Lipsius (1905– persuading thejudges to forbid his opponent to introduce his synêgoroi. Hesuggested, however, that this rule was all but a dead letter in the fourth century.80 Harrison (1971: 159) questioned Lipsius’ assumption andsuggested that ‘this [i.e. the liti10), Kennedy 202), Bonner andSmith (1938: 9– 37), Bonner (1927: 55, 201– 79 Leisi (1907: 36– 127 with n.4), Wolff (1968: 11), Engels (1989: 21 n.2), Hansen (1991: 194). Todd (1963: 126– (1993: 94) agrees, with reservation. 80 ‘Dennes wardazueine Erlaubnis derRichter erforderlich, die geradezu als Aufforderung bezeichnet wird, aber wohl kaumjemals versagt wurde’. See also Bonner (1905: 82), Bonner and Smith (1938: 9): ‘Permission of thejury tocall uponadvocates wasrequired butnever refused’.

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gants’begging the leave of the court] mayhave been more a matter of tact than conformity to anabsolute rule.’81Butwithhisusual caution, Harrison left thequestion open andsuggested further that the immunity from dikê pseudomartyriôn enjoyed bythe synêgoroi wascompensated forbya rule that thejudges’permission was required before the synêgoroi were allowed to address the court.82 Lavency (1964: 107–108) and Kennedy (1968: 419– 420) also followed Lipsius, but with reservations. A number of objections can be made to the claim that thejudges hadto give their assent formally before a synêgoros would be allowed to speak. Oneindication that the use of synêgoroi was difficult to control is Aischines’ remark in his speech Against Ktesiphon (3.199):

In short, I would almost say, Athenians, that a law ought even to be inforce, concerning graphai paranomôn only, prescribing that it should not bepossible for either the prosecutor or the defendant in such an action to bring forward synêgoroi.

ρ ν η γ ,ὦ ε ε α ν ἄ δ ῖο θ ςἈ ι, ὀλ ᾽ἔγω ο Ὅ υδ ίγ λ ω ςδ έ ω εἰπ εῖνὡ μ νδ ο ε ῖ α ςκ ὶνό ῷ ή τ ὴἐξεῖν ετ ν α μ ῆ ιἐπ ὶτ ω ν ,μ ρ α ν τ εθ ό α ιμ νπ α α ῖςτ ῶ ιςτ α α ν α ό ῖςγραϕ ῖςμ ὴ ϕ γ ρ ν η ό ῳ ο εύ ϕ συ υ ν ρ γ ςπ ῷ α ή α τ ο σ ρα χ γ τ ρ ὴ γ έσ ν ό ετ ν θ τ α ι, μ ι. κ α τη This remark forms part of a general attack onthe practice of synêgoria. According to Aischines, thepleading engaged inbysynêgoroi obscures theissue onwhich the judges areto vote. Aischines’reason fordeploring the use of synêgoroi in graphai paranomôn in particular is that, in such actions, the laws ought to speak for them200): selves (3.199–

For as in carpentry, when wewould like to knowwhat is straight and what is not, weapply a measuring rod with which this is decided, in the same waya ruler measuring thejust is also at hand in graphai paranomôn in the shape of this tablet: thedecree andthelaws written next to it. ο ῇ ,ὅ ν ικ α μ ν τ εἰδ υ ο ,τ λ τ ν ή α ὸ έν ιβ ό εθ τ ρἐ τ ῇ εκ ν α θ τ ὰ ὸὀρ ὸ ν κ α ὶτ ργ ὸμ π ε ὥ σ ν ώ δ γ ιγ σ ια κ ετ α ι, ο ὕ τ ϕ ,ᾧ ω ν κ κ α ά μ ε ν ρ οσ ῖςτ α ο ν ὶἐ α π ο α ῖςτ ν ν τ ῶ α ῖςγραϕ έρ μ α ισ ικα ν ντ α ὼ ῦδικα ρ κ ο ειτ ά ίο υτου α τ νπ μ ω ὶτ ρ α ν ὸσ ό α ν π α ίδ ,τ ὸψήϕ ιο ν μ έν μ ο ι. ο ινόμ ρ α γ εγ α ρ κ α ὶο ἱπ α In other words, what is the point of listening to lengthy pleading?83 81 See also Carey (1992: 92) whocites Dem. 56.50 and[58].70 as evidence that the request for permission found in [Dem.] 59.14 ‘is probably a courtesy only’. 82 Harrison (1971: 159). 83 Thepassage carries a strong resemblance toArist. Rhet. 1354a, where theimage of thecarpenν ν ϕ θ ο ό α ρδ ε σ τ ὴ ν δ ε ια ν δ ικ ὰ ῖτ ὸ ινε σ τ γ τρ ον α γ ρ ὐγ ὴ έϕ ἰςὀρ ν π ο ςἢ ά ter’s rule is also used (ο ἢ ἔλ εο νὅμ θ μ α έλ λ ικα ε ιχρῆσ ν ν ό ). Arisι, τοῦ ν λ ν ό ε ἂ ρκ ἴτ ιςᾧ εβ ὰ σ τ γ π ε ν ο ο ιή ιεσ τρ ν ιο ο inmuchthesamewayasAischines, claiming that thelitigants’only task should totle continues · ν τ η τ ο ῦ ο ς τ β ιδ ϕ α ισ ν ὲϕ ρ ε ὸ ν μ ὅ τ ιτ μ ο ν ἀ ὲ ῦ betodemonstrate whathappened ordidnothappen (ἔ ἢ μ ο α τ ιἔσ ὅ ὐ ιν γ τ κ ἔσ γ ᾶ ενε ο ἢ ὲ ρ ν ο ἰδ έγ ε ὐγέγον π τ ὸ ν ιτ ιν ,ἢ α ῦδεῖξ ο τ ν δ έ ω ο ὐ ἔ ἐσ τ ιν ξ μ έγ ἢ μ α ικ ρ δ ἢ ίκ ἄ ὸ ν α ,ἢ ιο δ ν ικ μ μ ὴ ο ν ν ,ὅ ὁ θ ο ο σ α η έτ ςδιώ ν ὴ ρ ικ τ ν ε ,α ὐ τ ικ ν δ ὸ ν δ ή π υ τ ὸ ο ·ασ ϕ η ισ β τ ο μ ρ ν ύ ὰ τ ῶ ἀ ν ν π α θ ιν ν ε ά α μ α τ κ ὶο ν ω ὐ ). ώ ν ιν δ σ κ ε ε ῖγιγ

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Aischines’point of viewthat synêgoroi ought to beprevented bylawfromaddressing thecourt ingraphai paranomôn suggests that thejudges themselves were innoposition formally to denya hearing tosynêgoroi. This is also indicated bythe numerous passages in which thejudges areasked notto payheedto thearguments presented bytheopponent’s synêgoroi or, alternatively, where the audience is told to demand that thesynêgoroi plead in a particular way.84 There is noexample of a litigant asking thejudges todenya synêgoros access tothebêma byissuing a formal prohibition. Three of the eight passages in which litigants introduce their supporting speakersalso point totheconclusion thatthejudges hadnomeans ofcontrolling formally the appearance of synêgoroi. Aischines (2.184) andthe speakers of [Dem.] 58 ([58].70) andIsokr. 20 (20.22) simply asktheir synêgoroi to come forward without any further ado.85 Andokides (1.150) and the speaker of Dem. 56 (56.50) do not seem to ask for thejudges’permission either, butstate that they ‘see fit’, ‘deemit right’, or ‘request’(ἀ ξ ιό ω , which is less deferential than δέο μ α ιor α μ α ι) that ἰτ έο their synêgoroi nowaddress the court.86 However, even if thejudges didnothave the authority to forbid the synêgoroi to speak, there wasnoguarantee that they would actually consent to listen, anda litigant who was anxious that thejudges might turn a deaf ear to his supporting speakers could noteven resort to the well-known strategy of applying moral pressure on thejudges by reminding them of their oath. Although the dicastic oath that they had sworn didinclude a vowto listen toboth parties, theoath, asfar as weknow, contained no statement on synêgoroi.87 There are instances of main litigants being 39, 24.157–159, [59].115; Aisch. 210, 22.38– 239, 21.208– 84 Lys. 14.22, 15.11; Dem. 19.238– 202; Dein. 1.112– 113. Thespeaker of Hyp.3 claims that theprosecutor 198, 201– 1.170, 3.197– has recommended that thejudges ‘refuse to listen to those whomount the bêma’(3.11). The wayinwhich Hypereides endshissynêgoria hasbeeninterpreted bysome scholars asanindication that the judges had to give their formal permission before synêgoroi were allowed to address thecourt. However, I prefer the interpretation indicated byColin’s punctuation (1946: ̣ ίλ ο υ ς ο ιπ ᾽ἐσ ό νδ ο ιτ 179) of the final line of Hyp. 3.41: λ α ὶτ ὺ τ νδικα ῶ ὶδεῖσθ ςϕ σ ,κ τ ν ῶ α ά β ιβ ζ εσ θ α ι: ‘it remains to beseech thejudges, to summon ν α ία ἀ α ιδ α ὰ π ,κ ὶτ ῖν ε λ α ρ κ α π α your friends, andtopresent yourchildren’. See also thetranslation of Blass (1898: 51): ‘Uebrig bleibt dir, dieRichter zubitten, danndeine Freunde aufzurufen unddeine Kinder vorzufürhren.’ οιπ (For this useof δ ν ό θ ι, see e.g. Plat. Apol. 34C andLys. 18.24.) Jensen’s punctuation λ α ̣ εῖσ ά ι ίλ β α ιβ θ ζ εσ ο υ α ν ρ ςπ α κ α λ εῖνκ ὰ α α π α ὶτ ιδ ο ίαἀ νκ ὺ ῶ νδικα τ ῶ α σ ςϕ ὶτ θ α ιτ ὶ δεῖσ τ ᾽ἐσ δ ά β ιβ ι, θ ζ α εσ α ρ α ν κ α λ εῖν α andἀ suggests thatthejudges arethesubjects of thetwoinfinitives π which is highly unlikely; andBurn’s translation (1954: 493) is at odds with the Greek. On the 204). α θ ιandother verbs of supplication, seeCortés Gabaudán (1986: 107– useof δεῖσ ή π ω 85 Note, however, that Aischines (2.170) introduces one of his witnesses with the words: μ κ ῇ... which maybe taken to indicate that Aischines’synêgoroi ο ιςσυνδ ο ν ,ἂ ντούτ ο ρ ο γ ή ν υ σ needed theapproval of thejudges. in connection with supplication, see Cortés ω ιό ξ 86 For a discussion of the use of the verb ἀ 113). Gabaudán (1986: 111– 87 E.M. Harris (1994: 149 n. 5) points out that the dicastic oath has not received the attention it deserves. Themostcomprehensive discussion remains thatof Fränkel (1878) which hasformed the basis of later descriptions of the oath. Although I disagree with Harris in his claim that we can infer from the oath that thejudges would as a rule give legal arguments first priority, the

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shouted down; synêgoroi musthave beenequally orevenmore vulnerable to dicastic thorybos. This phenomenon wasundoubtedly anextremely important means by which the judges could exercise control over the litigants’ performance, andthe phenomenon hasbeen discussed in detail byBers (1985). Bers (1985) deals withtheinformal two-way communication between litigants andaudience andalso lists thewords which served as prompts whena litigant solicited animmediate response fromhisaudience (1985: 9 n. 34). Oneof theverbs on ελ εύ , a wordwhich maysometimes mean ‘bid’, ‘command’, or ειν Bers’list is κ ‘permit’, but need not have any stronger meaning than encourage’ or ‘invite’.88 ‘ εύ ε λ ε ινis used in those passages that have occasioned the Precisely the word κ claim that a formal permission wasrequired fromthejudges. Thethree passages are Dem. 34.52, [Dem.] 59.14, andHyp. 2.20. Dem. 34.52 has I shall call yet another of my friends, if you invite me to do so’(κ α λ ῶ δ ίλ ὲκ α ὶἄ ω λ λ ν ο , ἐὰ ὰ τ ῶ νϕ ν ‘ντιν ). [Dem.] 59.14 is mentioned byBers (1985: 10) as anexample of a litiη τ ε κ ελ εύ gant asking his audience to make favourable noises (this ought notto surprise us, since his synêgoros, Apollodoros, mayhave known only too well the hazards of dicastic thorybos, as indicated in Dem. 45.6). Hyp.2.20 actually takes theformof a tiny dialogue between speaker andaudiμ α έο ι ence. It ispreceded bya remark in2.19 where thespeaker begsandentreats (δ ελ ) himto present hissynêgoroi. κ α ὶἀντιβ ο εύ ) his audience toencourage (κ λ ειν ῶ In 2.20 he continues: ‘If youvoice encouragement, judges, I shall call upon some ή σ ο ν η θ τ ). oneto helpme’(ἐ β η ὰ α ο ν τ ρ ε ὖ ν κ ε ο ,ὦ ελ ἄ ν α λ δ τ α ῶ α ςδικα σ ί, κ τ ιν εύ Apparently the speaker expects his audience to shout approval, for he continues: ‘Mount the platform, Theophilos, and assist me with what you have to say. The ϕ ιλ judges voice encouragement’ (ἀ ,κ ε α ο θ η ίμ ι, Θ ὶσύνειπ εό β ν εὅτ ά ιἔχ ·κ ε εις -

λ εύ ο υ σ ινο ί).89 ἱ δικα α τ σ Likewise, Aisch. 3.202 shows that the best weapon against the synêgoroi of one’s opponent is to persuade thejudges to shout themdown. This passage gives a

of howlitigants andaudience could interact: Andif he, having skipped over a just defence, calls Demosthenes to his side,

vivid impression

then refuse above all toputupwith a sophist whobelieves that he will abrogate

oath is of great importance forlaying downtheprocedural ground-rules inthecourt room. But the dicastic oath wasalso subject to rhetorical manipulation; see Plescia (1970: 28). 88 Forexample, whenEuphiletos, thespeaker of Lys. 1,invited hisfriend Sostratos over fordinner (ἐ κ έλ ε υ ο ν , 1.22), hemaywell have twisted hisarm, butit is highly unlikely that σ ν υ δ είπ ειν ν hewentasfar asto issue a command, andtherenderings ‘permit’or ‘give legal authority’donot sometimes has a weaker ω ύ ε ελ suit the context, either. Lavency (1964: 108 n.1) noted that κ sense than ἀ γ κ ά , buthestill assumed that it carries with it some notion of ‘request’. He ν α ω ζ wasaware that fear of dicastic thorybos might have induced some litigants to be deferential canbe used in a ιν ε ελ εύ when introducing their synêgoroi. Kennedy (1968: 419) noted that κ 261) discusses themeaning of technical sense ‘to give legal authority’. MacDowell (1989: 259– κ ελ εύ ιν ε inlawtexts, concluding thattheverbrarely means ‘command’inthese contexts: ithas , ‘permit’or ‘provide’a given procedure (cf. Thuc. 1.72.2). ν the same meaning as ἐᾶ 89 Cf. Colin’s translation (1946: 136): ‘Si donc vous en ordonnez ainsi, juges, je vais appeler un amià monsecours. Monte ici, Théophile, je t’enprie, etajoute enmafaveur ce quetuasà dire;

le tribunal t’y invite.’

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the laws with his words; and let no one among youcount it to his merit, if he is the first to shout Call him, call him!’, when Ktesiphon asks if he shall call Demosthenes.

‘‘

ή σ α η δ ςτ ὴ ν δ π ίκ α ια ερ δ ν ἀ ὲὑπ γ ία ν π μ ἐὰ ο ρ η λ ν α π κ ῇ ο ο α Δ α λ σ θ η έν ν ,μ ά λ ισ ρ ὴ μ π ο σ δ έχ μ ν ὲ εσ θ ισ τ α ν εσοϕ τ ὴ ο μ ἰό α σ ιτο ν ὺ ῥ ή ο ςνόμ εν ο υ μ ή ςἀ ν σ α ιρ ε ιν , η ᾽ἐ μ δ ν ρ ἀ ε τ ῇτο ᾽ὑ μ η ῦ δ θ ῶ μ ν ε ὶςκα τ γ α ιζ λ ο έσ θ ,ὃ ω ςἂ ν ἐπ α μ ν ο ερ έν ο υΚ η τ ν ῶ τ μ ο η 'κ ο ρ η ν ,ε ,π ῶ ς σ τ ά ή ῃ θ ῃ ἰκαλ Δ έν ο έσ σ λ ςἀναβο ε ιϕ σ ι, κά λ ε ι.' Whatwould have happened if thejudges hadindeed refused ‘toputupwith’(π ρ ο σ ι) Demosthenes’ appearance? I donotbelieve that weshould imagine a θ α εσ έχ δ

court official physically blocking Demosthenes’ access to the bêma; but Demosthenes, on his part, would probably be reluctant to risk losing face, if 500 judges or more hadshouted ‘boo’inunison at themention of hisname. After all, it wasnot Demosthenes’ life or epitimia that were at stake at this trial.90 Hisprimary motive for appearing as Ktesiphon’s synêgoros washis desire to preserve or enhance his ownpolitical andpersonal prestige, andif thejudges hadindicated inadvance that the game wasalready up,he would gain precisely nothing from trying to address them anyway. Ina sense, then, thejudges’‘permission’wasrequired; butthere is noreason to believe with Lipsius that such a permission wasin anywaya formal requirement, ελ strictly prescribed by written statute or custom. The κ εύ ειν -passages show at mostthatnolitigant could becertain thathisaudience would consent tolisten tohis supporting speakers. Andtheevidence as a whole points to theconclusion that the only means available to the court of controlling the use of synêgoroi by the litigants wastherather more informal andcapricious dicastic thorybos.

3. Synêgoria: the exception or the rule? Asnoted intheconclusion of Section 1 of this chapter, 23 of the93 extant speeches delivered in the regular dikastêria were delivered entirely bysynêgoroi, while synêgoroi delivered substantial parts of a further twospeeches (Dem. 34 and[Dem.] 59). A further six speeches were written for supporting prosecutors elected by the Assembly (Dem. 25, [26], Hyp. 1, Dein. 1, 2, 3).91 That is, roughly a third of the

;τ ή ίςὁ ν τ ό ο γ ῆ ς ςτ ρ α υ κ ίςἡ ;τ α υ ρ κ ά δ ὰ ίτ λ ω ὲτ ςδ 90 See Aischines’pointed comment in3.210: ὅ ϕ ω ν ῆ ᾽ο ὶ ὔ τ επ η ερ τ ο ς γ ᾽ἀ ,σ ϕ ς ;ο ῶ ν ὼ ν ὺδ , ὁδ ο ὐ κ τ ὴ εύ ἀ ίμ γ ν ν ω ὐ η ϕ ἐσ σ ιϕ χὁμ τ ὶΚ τ ρ ὲ ν τ γ ὴ α ν ; ῃ ίζ ν ω γ ςἀ ία ῆ σ ςοὐ ὶτ ρ ε επ τ ία ὔ ςο ιμ ιτ ῆ ςἐπ ὶτ μ α τ ο τ ερ ο επ ῦσώ τ ςοὔ 91 The 93 speeches are: Lys. 12, 22, 29, 30; Dem. 19, 21, 23, 24, [53], [58]; Aisch. 1, 3; Lyk. 1 (total 13, publ. pros., main sp.); Lys. [6], 13, 14, 15, 27; Dem. 20, 22, 25, [26], [59]; Hyp. 1, 4; Dein. 1, 2, 3 (total 15, publ. pros., synêg.); Ant. 5; Lys. 9, 18, 19, 21, 25; And. 1; Isaios 11; κ υ ρΛ π ὲ ο ρ ϕ ό Aisch. 2; Hyp. 2 (total 10, publ. def., main sp.); Lys. 5, [20]; Dem. 18; Hyp. 3, ύ β( total 5, publ. def., synêg.); Lys. 10; Isokr. 17, 18, 20; Isaios 3, 5; Dem. 27, 28, 30, 31, 32, voς 33, 37, 38, 39, 40, 41, 45, [46], 47, 48, 49, 50, 54, 56; Hyp. 5 (total 26, priv. pros., main sp.); ᾽ Isaios 6; Isokr. 21; Dem. 36, [44] (total 5, priv. pros., synêg.); Lys. 23; Isokr. 16; Dem. Lys. 32; 35, 52, 55, [57] (total 6, priv. def., main sp.); Isaios 2, 12; Dem. 29, 34 (total 4, priv. def., synêg.); Lys. 17; Isaios 1,7, 8, 9, 10; Dem. 42 (total 7, diadikasia, mainsp.); Isaios 4; [Dem.] 43 (total 2, diadikasia, synêg.).

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speeches in ourcorpus of forensic oratory were delivered in the dikastêria by supporting actors. This hardly tallies with the observation made by Bonner and Smith (1938:13) that [c]omparatively fewspeeches of advocates have beenpreserved’.92 But such a figure ‘ must, of course, behandled withcaution. Thejustice of theclaim madebyBonner andSmith depends ultimately onwhether synêgoriai might reasonably be expected to form aneven higher proportion of surviving forensic speeches than they already do. The surviving speeches in ourcorpus represent only a small part of the total number of speeches written andcirculated inantiquity, andif wesetthemoutagainst all those speeches which weredelivered inAthenian courts butnever published (and many of them presumably never evenproduced inwriting), wearedealing with an infinitesimal fraction. Thefirst question which mustbeasked is, then, whether there is any reason to believe that a synêgoria would stand a higher chance of survival than a speech written fordelivery bya mainlitigant. This is probably notthecase. In fact, there mayeven be reason to believe that synêgoriai would be less likely to find their wayinto the corpus of forensic speeches. The scholiast commenting onDem. 22.1 (schol. Dem. 22.1b, Dilts) makes the following observation onDem. 22:

For Euktemon spoke as thefirst, and Diodoros speaks second. Therefore, the speech does not contain a prooimion or a diêgêsis for the reason that the prooimion is always spoken inorder topaycourt to theaudience, andthediêgêsis inorder to inform thelisteners of thestanding of thecase. Since thefirst speaker has already both paid court to the audience in the prooimion and told them about the case through hispleading, it is superfluous for thesecond speaker to say these things once again.

ῳ θ ρ ὁΔ ρ ιό ν ε ο ο δ ο ι, ὅ ὔ ω τ ςλ ε επ μ έγ ω ν εἶπ ρ ῶ τ ρ ο ,ἐ δ επ ν ευ ς τ έ ρΕὐκτή ὰ ὁγ ρἀ η η ή να σ ινδ π ε ε ὶτ ία ἰτ ν , ἐπ ιὰ τ ὸ ο τ ειδ ια ύ γ ο ςο τ ὔ εδιήγ ιὁλό ιο νἔχ ε ο ίμ η σ ιςἕν δ ε κ α τ ο ῦ ὲδιήγ ετ α ι, ἡ ρ ν τ λ ῶ έγ ο α α π ν ιο εία κ ἀ ἕν κ ςτ ν ε θ ῶ α ερ ρ ο ίμ ο π ο ν τ ο υ λ έγ ρ ώ ν π ῦ ὖ ο ο ,τ θ έσ ῆ εω ο ςὑπ ς ὸτ ιτ ῶ ε ,π ςἔχ ς ὺ ιτο δ ιδά ςἀκούοντα α ξ ίω ν κ α ὶδιδά ρ ο ιμ ο ν α ξ α τ π π τ ν ὰ ῶ ιὰ εύσ α ν τ κ ο α ερ ςδ η ὶθ ςτ ο ὺ ςἀκροα δ τ ο ςἤ ο ν ν λ έγ ο μ α ιτ δ τ ν ἐσ ό εύ τ ν δ τ ερ ιὰ ιν ιτ γ τ ὸ ῆ ἔ τ εω ,π ερ ςκαταστά σ ς ρᾶ τ ο ςτ ὸπ . ῖν ιν εἰπ ε λ ά π ὰ τ α α τ ὐ The scholiast’s observation does not fit all surviving synêgoriai, andit has been pointed out above that prooimia maybe left out of main speeches for stylistic reasons. However, thescholiast mayhave a point regarding theabsence of a narrative section.93 Eight of the 25 preserved synêgoriai do not contain a proper diêgêsis (Lys. 14, 15, [20], 27, Dem. 20, 22, Hyp. 3, Isaios 4). In four other instances (Lys. 5, κ ρΛ υ [6], Hyp. On behalf of Lykophron no. 2 (ὑ π ὲ ο ν ρο ςβ), and Hyp. 4) it is ϕ ό impossible to tell whether the speeches contained a narrative section because they

᾽ 95). 92 See also Todd (1993: 94– 93 The lack of diêgêsis in synêgoriai was also noted by Kennedy (1963: 261). The majority of synêgoriai that didcontain a narrative section weredelivered inprivate actions (Lys. 32; Isokr. 21; Isaios 2, 6, 12; Dem. 29, 34, 36, [43], [44]) while only three (Lys. 13; Dem. 18, [59]) were delivered in public actions. For the significance of this observation, see Chapter 4: 1.

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survive only infragments. Furthermore, five of thesix speeches delivered byelected prosecutors (Dein. 1, 2, 3, Dem. 25, [26]) definitely lack proper diêgêseis, and the same is probably true of Hyp. 1.94 Many of our surviving texts written for delivery bysupporting speakers thusdeviate considerably fromthestandard pattern of a logos dikanikos, and it is at least conceivable that, ceteris paribus, they would have been found to be of less value for educational purposes (especially for purposes of imitation, mimêsis) than speeches written for main litigants. 22) hasdemonstrated howdifficult it is to point to Admittedly, Dover (1968: 1– a single criterion which would have determined thesurvival of a piece of oratory in ourcorpus. Inhisdiscussion of thegenesis of theLysianic ‘corpusculum’(1968: 6), he found it hardto imagine that theselection wehave wasmade withsome regard ‘ ’s argument is for historical interest, literary quality andeducational value’. Dover

very hard to refute, and if he is right in assuming that the selection of speeches is more or less random, it maybe concluded that it is very unlikely indeed that synêgoriai hada higher, rather than equal, survival rate than speeches written for main litigants.

If, ontheother hand, it maybeassumed thatAthenian forensic oratory wasread andpreserved throughout antiquity partly because of its rhetorical, educational, and historical value, there is a possibility, however slight, that synêgoriai would be less likely to attract interest than speeches written for delivery by a main litigant, simply because theformer deviated considerably from whatwould beconsidered a model’ ‘ speech belonging to the dicanic genre. The second question is whether synêgoroi would be more likely than main litigants tocommission their speeches fromlogographers. Were synêgoriai more likely to be written down andcirculated in the first place than speeches delivered by the parties themselves? Theanswer tothatquestion is probably no:it is a commonplace intheforensic speeches thatsynêgoroi would bechosen partly because of their skill in speaking, their respectability and their political prestige.95 For this reason it is 94

95

Although substantial parts of this speech have been lost, enough hasbeenpreserved of thefirst 26 columns to allow the conclusion that the speaker proceeded directly from theprooimion (cols. 1– 2) totheargumentative sections. Itmaybeinferred fromDein. 1.1thatStratokles as the first speaker hadset outthe case in a substantial narrative. Some scholars have regarded Stratokles’ youth (he was probably in his late twenties) as irreconcilable with such a prominent 126]). Onthe other hand, position in the prosecution team (see e.g. Worthington [1992: 125– 495]), and there are Stratokles belonged to a very distinguished family (Davies [1971: 494– other examples of ambitious young menfromwealthy backgrounds taking a prominent part as prosecutors orsynêgoroi inpublic actions (Dem. 20 which wasprobably delivered by Demosthenes himself at a very early date is onesuchexample). Furthermore, thedate of Stratokles’ birth cannot bedetermined withcertainty. Davies suggests adateshortly after 356onthegrounds that Stratokles’ father Euthydemos is attested as syntrierarch with Stratokles’ grandfather in 356 and, consequently, wasunlikely to have married andset upa separate household at this date. However, some mendidmarry without having divided their property withtheir fathers, as 563]). had happened in the case of Philoktemon Euktemonos Kephisieus (Davies [1971: 562– Thus it cannot beruled outthat Stratokles wasborn before 356. See e.g. Hyp. 2.10 where the practice of allowing skilled speakers to assist litigants in need is extolled by the speaker as ‘most democratic’. Andokides (1.150) calls as his synêgoroi those who have proved to the people that they possess the ‘greatest aretê’.

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tempting toassume a priori thatsynêgoroi would nothave hadthesameurgent need for logographical advice as the inexperienced litigant whowould sometimes find himself involved in litigation more or less against his will. Yet the number of preserved synêgoriai does in itself undermine this a priori assumption, andit forces us to reconsider the nature of the symbiotic relationship between logographers andsynêgoroi. Logography andsynêgoria have been viewed by some scholars as complementary: logography flourished because the Athenian legal system didnotpermit professional advocacy, andbecause each litigant was, ideally, expected to plead hisowncase.96 It is probably true that thebanonpaidassistance inthecourt roomis partof the reason whymany Athenian litigants depended on the services of logographers, in that it prevented advocacy frombeing openly recognized asa source of income and thus a ‘profession’. On the other hand, the evidence seems to contradict the view that the useof the ‘Vicarious Pen’andtheuseof the ‘Vicarious Voice’were clearcut alternatives; andCrook (1995: 33) rightly points outthat ‘there wasnoreason whythe speech of a synêgoros should nothave beencomposed bya logographer’.97 The evidence proves beyond doubt that synêgoroi sometimes consulted logographers, and, apparently, so did prosecutors (katêgoroi or synêgoroi) who had been elected by the Assembly to plead on behalf of the polis, and who were very likely politically active citizens withsome rhetorical skills.98 Butall this having beensaid, it is still relatively safe to assume thatsynêgoroi would nothavebeenmorelikely to solicit advice or written speeches from logographers than those litigants whowere pleading in their owncases. The 25 preserved synêgoriai along with the six speeches delivered by elected prosecutors whoacted in teams thus constitute a relatively high proportion of our corpus of forensic oratory. This suggests that Athenian litigation (at least the sort of litigation undertaken by people rich enough to pay a logographer for his services) wasoften undertaken as a collective enterprise. This figure will of course have to be balanced against the corpus of forensic speeches as a whole. We possess 93 extant (or partly extant) forensic speeches delivered intheregular dikastêria. These were delivered in83 different trials, 36 public and47 private actions (counting Lys. 17, [Dem.] 57 andIsaios 12 as private).99

58: I 309), Lipsius (1905–15: 906), Bonner (1927: 209), Kennedy (1963: 96 e.g. Schaefer (1856– 33), Humphreys (1985: 69), Wolff (1968: 11), Hansen (1979a: 32– 126), Lavency (1964: 68– 31), Gagarin (1997: 1). 318), Todd (1993: 78 and95), Crook (1995: 30– 97 As noted also by Humphreys (1985: 318). 98 [Dem.] 26; Dein. 1, 2, 3. 99 Theclassification of [Dem.] 57 andIsaios 12aseither private orpublic actions does infact pose tremendous problems. Hansen (1976: 64 n.26) hasargued thatboth speeches weredelivered in public actions, assuming that theactions were graphai xenias heard inthecourt of the thesmothetai andthus identical withtheprocedure listed inAth. Pol. 59.3. Hesuggests, further, thatthe 12mayhave beena special arrangement arising fromthe arbitration referred to inIsaios 12.11– revision of the deme rosters in 346/5. But Hansen overlooks the passage in [Dem.] 57.21 in which the speaker asks for the klepsydra to be stopped while testimony is being read out. Together with thediaita mentioned in Isaios 12 this strongly suggests that both actions were private. If they were notprivate actions, [Dem.] 57.21 is ouronlyevidence forthestopping of the

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24 of these trials (13 public and11private) areknown inpart fromspeeches deliveredbysynêgoroi, andfour (all public) areknown fromspeeches delivered byprosecutors elected bytheAssembly. Theremaining 55 trials, 19public and36 private, are known exclusively from speeches delivered by the legal protagonists themselves.100 It would seem that synêgoroi appeared on one or both sides in at least 11 of the 19public actions andinatleast 10ofthe36 private suits.101 Theevidence that has formed thebasis of these calculations hasbeen setoutinTable 1 at the endof this book. The table below provides an overview of the distribution of synêgoroi between public andprivate actions

trials known fromsynêgoriai andspeeches delivered

byelected prosecutors public private

17 (9 P+D, 5P, 3D)

11 (7P+D, 4P)

total

28 (16 P+D, 9P, 3D)

inthecorpus of forensic

oratory

trials known from speeches delivered by protagonists w/o synêg. w/ synêg.

11

8

(3P+D, 2P, 6D)

10

(1 P+D, 3P, 6D) 21

26 34

(4P+D, 5P, 12D)

P+D –synêgoroi attested for prosecution anddefence, P –synêgoroi D –synêgoroi attested for defence

asa whole. total

36 (12 P+D, 7P, 9D) 48 (8P+D, 7P, 6D)

83 (20P+D, 14P, 15D)

attested

forprosecution,

To sumup:synêgoroi seemtohaveappeared inatleast 28outofthe36public trials (78%), andin at least 21 out of the 47 private suits (47%). In the public actions known directly fromtheforensic speeches, synêgoroi were employed asfrequently by prosecutors (19 instances) as by defendants (21 instances). There is thus no reason to assume with Worthington (1989: 206) andothers that synêgoroi were employed by prosecutors only exceptionally or at anyrate less frequently than by defendants.102 Thepublic speeches inwhich synêgoroi areattested were delivered inendeixis/ apagôgê (5), graphê paranomôn (4), euthyna (4), eisangelia (3), apophasis (3), klepsydra inpublic actions. Ath. Pol. 67.3 states only that theklepsydra is notstopped inactions , and,asnoted byRhodes (1993: 722), wecannot besure η μ έν η ρ μ εμ ετ μ α ια δ έρ conducted ina ἡ that all public trials were measured in this way. Thus the problem of [Dem.] 57.21 has enormous implications forthedebate ontherules surrounding public actions, butit will carry ustoo far afield todiscuss thematter here.

100 Publ. pros.: Lys. 12, 22, 29, 30; Dem. 19+Aisch. 2, Dem. 21, 23, 24, [53], [58]; Aisch. 1; Lyk. 1; publ. def.: Ant. 5; Lys. 9, 18, 19, 21, 25; Isaios 11; priv. pros.: Lys. 10; Isokr. 17, 18, 20; Isaios 3, 5; Dem. 27+28, 30+31, 32, 33, 37, 38, 39, 40, 41, 45+[46], 47, 48, 49, 50, 54, 56; Hyp. 5; priv. def.: Lys. 23; Isokr. 16; Dem. 35, 52, 55, [57] (?); diadikasiai: Lys. 17; Isaios 1, 7, 8, 9, 10; Dem. 42. 101 Public actions: Ant. 5 (P); Lys. 12(D), 25 (P), 30 (P+D); Dem. 19 + Aisch. 2 (D), Dem. 21 (D), 23 (P+D), 24 (P+D), [58] (P+D); Aisch. 1 (D); Lyk. 1 (D); private suits: Isokr. 20 (P); Isaios 5 (D); Dem. 27+28 (D), 32 (D), 38 (D), 45+[46] (D), 48 (D), 56 (P), [57] (P); diadikasia: Isaios 1. 102 e.g. Bleicken (1994: 215). Hansen (1989c: 139) drew attention to this error in his review of Bleicken’s first edition.

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graphê nomon mê epitêdeion theinai (2), apographê (1), ?graphê astrateias (1), xenias (1), dokimasia rhêtorôn (1), probolê (1), and in a further four graphai of unknown type. The use of synêgoroi thus does not seem to have been connected with any particular type of public action; but it must be noted that all these procedures were based oncharges thatrelated directly tothedefendant’s conduct inthe public sphere. This will receive further attention in Chapter 3. So far it maybe concluded that the use of supporting speakers wasfar from exceptional, andthattherelatively highproportion ofsynêgoriai inourcorpus seems to be matched by the attestation of synegorial activity in the rest of the forensic speeches. If anything, the number of synêgoroi arrived at mayin fact be too low. First of all, we cannot be sure that all litigants whoemployed synêgoroi would necessarily refer tothemintheir speeches. That a litigant would bemore inclined to mention the synêgoroi of his opponent than his ownsupporters is borne outby the evidence compiled inTable 1.Ofthe23 speeches delivered bymainlitigants in22 public actions (Dem. 19andAisch. 2 were delivered inthesame action, sotogether they count as one), thirteen speeches were delivered by prosecutors, andten by defendants.103 It is striking that while nine of the thirteen main prosecutors refer repeatedly andat length to the synêgoroi of the defendants,104 only two of them comment directly ontheir ownsynêgoroi.105 Conversely, twoof thetendefendants mention several prosecutors byname,106 andanother three refer to the prosecutors as hoikatêgoroi in theplural107 –which maybe taken to indicate that the main prosecutor received assistance from other speakers –while only three of them let on that they will present synêgoroi themselves.108 It maythus be inferred that litigants would in general be more ready to comment onthe supporters of their opponents, andthat weshould expect thelawcourt speeches to reveal whatis ineffect only thetipof aniceberg. Theresult ofthis investigation thussuggests thattheuseofsynêgoroi waswidespread, at least in public actions. It mayof course beobjected that, in thelaw-court speeches, passages commenting onthe synêgoroi of the opponent mayhave been included in the script as a safety precaution to be used if the opponent didindeed turn outtobeemploying synêgoroi, orskipped altogether if theopponent turned out to be fighting the trial onhisown.This hasbeen suggested asa possibility byTodd in his analysis of Lys. 30 (1996: 113). Thepossible rejection of these passages asevidence foractual synegorial activity maybe countered by twoarguments. The first argument is that records of past trials, referred toretrospectively bylitigants orbyother sources, very often mention synêgoroi as taking part in the legal battle. Hansen (1974) presented evidence for 37 graphai paranomôn, four of which are known from speeches delivered in the 103 Prosecution: Lys. 12, 22, 29, 30; Dem. 19, 21, 23, 24, [53], [58]; Aisch. 1, 3; Lyk. 1. Defence: Ant. 5; And. 1; Lys. 9, 18, 19, 21, 25; Isaios 11; Aisch. 2; Hyp. 2. 104 Lys. 12, 30; Dem. 19, 21, 24, [58]; Aisch. 1, 3; Lyk. 1. 105 Dem. 24, [58]. 106 And. 1, Lys. 25. 107 Ant. 5.64, 94; Lys. 19.2, 61, 21.20. 108 And. 1; Aisch. 2; Hyp. 2.

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actual trials (Dem. 18 + Aisch. 3, Dem. 22, 23, Hyp. 4).109 The remaining 33 instances are known from sources which refer to past trials, andnot necessarily in great detail. Very often litigants referring topasttrials donotevenbother tomention the name of the main prosecutor, let alone his supporters. Even Apollodoros, who refers to hisowntrial against Phormion inDem.45.5– 6, fails tomention that Phormion had received assistance from at least one synêgoros, namely the unknown speaker (or speakers) of Dem. 36. Even so, it is clear that synêgoroi appeared in at least eleven of the 37 graphai paranomôn registered by Hansen (1974), to which should be added the graphê paranomôn brought by Philon against Sophokles, who had Demochares as his defence synêgoros.110 The total of twelve attestations of synêgoroi inthis type of procedure is a figure which mustberegarded asanabsolute minimum.111 The same considerations apply to a similar figure derived from Hansen’s catalogue of attested endeixeis/apagôgai: of the21 actions brought before the regular dikastêria at least eight involved synêgoroi ononeor both sides.112 The attested frequent useof synêgoroi in these trials indicates that thesynêgoros-topos employed in extant forensic rhetoric does indeed reflect Athenian court-room reality pretty well. The second argument for taking the figures presented in this chapter seriously has to dowith the litigants’prior knowledge of their opponents’strategies. This is an extremely thorny issue, andit is unlikely that there is a simple solution to that problem. Scholars have discussed thepreliminary procedure ofanakrisis asa possible source of knowledge,113 butit is very likely that a litigant’s prior access to information about his opponent andhis supporters would depend to a large extent on whether the action was public or private. If the litigant was involved in a highprofile action where the stakes were high, it is possible that the Athenian informal networks would be far more important than anyformalized preliminary encounter between the opposing litigants.114 However, even if it is hard to determine andevaluate thechannels of information in the build-up to a trial, there is little doubt that the litigants did in actuality have access to knowledge about the strategies of their opponents. This is evident from the extant Athenian lead ‘curse tablets’, defixiones, which mayalso serve to corroborate theviewthat Athenian litigation wasveryoften undertaken asa collective enterprise. A large number of the preserved Athenian lead tablets containing 109 Thecatalogue contains 39 entries, butcat. nos. 3 and24 donotappear tohave reached thecourt. 3 (Müller). 110 Demochares fr. I.1– 111 Cat. nos. 9, 12, 13, 14, 17, 18 (with [Dem.] 59.6), 19 (with Dem. 21.182), 29, 30, 31, 32. It would seem that the defence-synêgoroi incat. no. 19 addressed thecourt in the time allotted to timêsis.

112 Hansen (1976): cat. nos. 1, 10, 12, 13, 16, 25, 29, 32. Cat. nos. 5, 7, 8, 17, 18, 23, 24, 30 didnot reach thecourt. 170), MacDowell (1978: 136), Dover (1968: 167– 113 Lämmli (1938: 74–128), Lavency (1964: 129– 241). 240– 23) and 114 Oninformal dissemination of information inAthens, seemostrecently Lewis (1996: 9– also Hunter (1990) and (1994: 96–119). Trials were also publicized formally on the official Athenian ‘notice-board’ in front of the twelve tribal heroes (Dem. 21. 103 andschol. Aris127). 24)); cf. E.M. Harris (1989: 126– tophanes Wasps 349, see also Boegehold (1995: 23–

4. Synêgoroi inprivate

actions

65

binding-spells aredemonstrably connected withlitigation. Mostofthese tablets were produced before the litigant encountered his opponent in court, andthey are thus interesting sources for what a litigant might expect to be facing in the court room, and for the ways in which he might take his precautions.115 The authors of the tablets naturally direct their spells first andforemost at their mainopponents, butin at least twenty instances they make sure that thespell is cast ontheir opponents’syndikoi orsynêgoroi aswell.116 It is taken forgranted inthese spells that opponents at lawwill receive support notonly fromwitnesses butalso fromco-pleaders. Inmany instances the supplementary spell is directed at a number of named synêgoroi or syndikoi, andsuch specific addresses are often accompanied by a further ‘blanket spell’aimed at ‘whoever else mayappear ashissynêgoroi/syndikoi’ .117 Most defixiones thus indicate that the litigants who hadcommissioned the tablets were in possession of some advance information about the supporters of their opponents; butthatthey were also preparing fortheunexpected, hence the ‘blanket spells’. It is of less importance here howthey went about obtaining such information: what matters most inthepresent context is that litigants donotappear to have beencompletely inthedarkwhenpreparing fortheir trials. There is thusnocompelling reason to follow Todd’s pessimistic assessment of the value of rhetorical passages which contain attacks on the opponent’s synêgoroi. The defixiones suggest that a litigant often would havesomeideainadvance of whowasgoing toassist his opponent, andtogether withthetrials attested inretrospective contexts theyconfirm that the practice of synêgoria wasindeed widespread.118

4. Synêgoroi in private actions Inspite of thefact thatwehavemorespeeches relating toprivate suits thantopublic actions, the number of attested synêgoroi indikai anddiadikasiai is actually lower. Thelimited number of surviving law-court speeches doesof course impose serious 115 It hasbeensuggested thatthetablets were written after theverdict hadbeenpassed. However, there nowseems tobegeneral agreement that bothdolls andtablets were produced prior to the trials asprecautionary measures. See Faraone (1985: 151n.9) fora summary of thedebate, and 32). his discussion in Faraone andObbink (1991: 3– 116 The following list is notintended to becomplete (our corpus ofjuridical defixiones is growing γ ρ ο ο ή ι), IG III app. 39, ν υ continuously): IG III app. 38, 63, 65, 95b, Ziebarth 2, SEG44.226 (σ 66a, 81, 103(323/2), 106a, 107a(late fifth orearly fourth century, Bravo [1987]), 129, Ziebarth ρ γ ο ο ιinthe ή ύ α τ ν δ ικ ο ι), Audollent DF60 (κ 3, Audollent DF62,63,Jordan (1985) no.9, 51(σ θ η ο ί). Faraone (1985: 153n. 18and19)sumsupprevious dicussions ο plural), IGIII app.94 (β onthedating of thetablets andconcludes thatallpublished Athenian juridical defixiones canbe dated to thefourth century orearlier. Jordan (1985) no.9 is a fourth-century voodoo doll found α ὶἔτ ιςἄ ο λ ς λ witha leadcoffin carrying aninscribed list of nine names anda ‘blanket spell’: κ μ ᾽ἐκ ετ έ ν οξύνδικ υ τ ρ . A further twospells aredirected at witnesses (IG III app. ς ό ά ιἒμ ςἐσ τ 25 and68a). 117 Nameof synêgoros only: e.g. IG III app. 95b; names + ‘blanket spell’: e.g. IG III app. 107a; ‘blanket spell’alone: e.g. IG III app. 63. 118 Thetablets donotnormally indicate whether these law-suits were private orpublic: only one, Jordan (1985 no.49), mentions an[ἔ ]δ ειξ ν ις . Thetext is dated byJordan tothelate fourth or early third century.

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limitations onanyattempt to generate statistics, andthus the apparent discrepancy between public andprivate actions in ourmaterial maynotin itself be significant. There is, onthe other hand, oneimportant reason to believe that the lower figures forprivate actions mayreflect Athenian court-room reality inthefourth century. As noted above, thespeakers inpublic trials hadbetween them at least eleven amphoreis (= 132 choes, i.e. 66 choes each) at their disposal, while litigants in private suits hadfar less time measured outfor the delivery of their speeches. While the waterclock would bestopped aslawsandtestimonies were readoutinprivate law-suits, a synêgoria would count against theparty’s ration of water.119 When the Ath. Pol. was composed, a litigant in a private suit would have between sixchoes (between 18and24 minutes) andthirteen choes (between 39 and 52 minutes) inwhich todeliver hisspeech, depending onthetype of procedure and the sumof money under dispute.120 It appears from [Dem.] 43.8, referring to a diadikasia which took place shortly after 361/0,121 that each party in a diadikasia was allowed fifteen choes (between 45 and60 minutes including a second speech); but the allowance was reduced to six choes at some point during the fourth century, perhaps before 345.122 Even if all allowances indikai were longer at the beginning of the fourth century thaninthe320s, it would still make less sense toshare thelimited time allowed to the parties in a dikê among several speakers than it would in public suits. Todd 32) noted that witnesses were employed far more frequently in private (1990a: 31– disputes than in public trials. While Todd is undoubtedly right in ascribing this phenomenon tothelitigants’wishtoprove that ‘family consensus wasontheir side’ in private disputes where the audience waslikely to be ignorant of the facts of the case,123 another part of theexplanation for this discrepancy mustbethat, in trials of comparatively short duration, theuseof witnesses rather thansynêgoroi would make muchbetter sense as a court strategy. In terms of speaking time, theuseof witnesses wasgratis, as it were, since, in private suits, the klepsydra was stopped as testimony was read out.124 In the dikai concerning property worth less thana thousand drachmai, thespeaker hadonly five choes inwhich topresent hiscase, while another twochoes were setaside fora reply tohisopponent’s speech. A speaker whowasforced topresent hiscase within 15or 119 Hyp. 4.13; Dein. 1.114. See also Lavency (1964: 87 n. 7). 120 Ath. Pol. 67.2 with Rhodes (1993: 721). 121 [Dem.] 43.31. Phylomache II defeated Glaukos ([Dem.] 43.7) in a diadikasia in 361/0, buther 10 with Wyse [1904: 677 and686– position as heir waschallenged soon after (see Isaios 11.9– 687]). See Keil (1902: 239) fora similar observation. Hisinterpretation of thespeaker’s complaint ([43].9) is wrong, though: Keil believed that thepresiding magistrate could exercise discretionary power to reduce the time allotted to litigants, butwhat the speaker wasreally complaining about wasthat hisfouropponents colluded inentering four separate claims, each with a full time-allowance. Thus, the ‘conspirators’could plead their case against thespeaker’s wife atanadvantage of four allowances toone. 122 [Dem.] 43.8 maysuggest that therules hadbeen changed before the delivery of this speech in 345; butthis is bynomeans certain. 123 See also Humphreys (1986). 124 Ath. Pol. 67.3.

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20 minutes inhisfirst speech might find it more advantageous topresent hiscase in toto onhis own, backing it upwith witnesses as hewentalong, rather than wasting precious time on introducing his co-pleader to thejudges andrunning the risk of creating confusion. Even so, litigants in dikai didsometimes rely on assistance from co-pleaders, anda closer look at the private suits in which synêgoroi appeared onone or both sides reveals some sort of pattern. Synêgoroi participated infouroutof five attested law-suits concerning guardianship: Isaios 7.7 and10 (plaintiff), Lys. 32 (plaintiff), μ α η ο τ ὰ Δ σ θ έν Lys. ‘Against Demosthenes on his guardianship’ (κ ο υ ῆ ςἐπ ρο ιτ π ς , fr. XXXIV [Thalheim]) (plaintiff),125 andDem. 27+28 (defendant). Furthermore, they appear in nine outof fourteen attested law-suits concerning false witnessing: Dem. 29 (defendant, perhaps also plaintiff), [Dem.] 44 (plaintiff, perhaps also defendant), Dem. 45+[46] (defendant), Isaios 2 (defendant), in the dikê pseudomartyriôn against Xenokles fromKopros reported inIsaios 3.2– 4 and3.22, 126 Isaios 5.16–18 (plaintiff, probably also defendant, 5.18), Isaios 6 (plaintiff), IG II2 ρ ε ὶτ ῆ 1258 (plaintiff), andDein. ‘Synêgoria concerning Agathon’s diamartyria’(π ς ρ γ ία , fr. LXXVI [Conomis]).127 ο ρία ςσυνη ρτ υ μ θ α ω γ ν ά ο ςδια Ἀ They are attested in four suits concerning inheritance: Lys. O n behalf of Phe‘ρεν renikos concerning the inheritance of Androkleides’ (ὑ ρΦ π ε ίκ ὲ ο ρ υπ ὶτ ε ο ῦ ρ ο υ , fr. CXX [Thalheim]) delivered before 380, Isaios 4 delivρ κ ο λ είδ υκλή ο Ἀ ν δ ered ca. 374,128 Isaios 7.10 (an inheritance suit in which the claimant Apollodoros received support from hisstep-father, considerably earlier thanthedelivery of Isaios 7 in the late 350s), and[Dem.] 43 delivered in 345, perhaps prior to thereduction of speaking time allowed in diadikasiai.129 Two plaintiffs in suits for assault enlisted the support of synêgoroi: Lys. Against 40) α τ ὰΤ είσ ιδ , fr. CXIX [Thalheim]) and Isokr. 20. Fisher (1992: 39– ο ς Teisis (κ notes that the speech Against Teisis wasnot delivered by Archippos, whohadfallen victim to Teisis’violence, butbyoneof his friends. Fisher finds this hardto reconcile with the speaker’s statement that the suit wasbrought as a dikê (2.1), andhe μ ειρα ῷ κ ρτ ίῳ δ ά κ ιἐγ ετ α λ η :Ε ε ἰγ ῖςτῷ π ρ ο υδίκ 125 The fragment is preserved in Harp. s.v. κά η τ β ε ϕ ῖς ισ , κάρπ ο υ ρ , ίο υἀμ ο υ ν χ ω ὲ τ ο ς ,ε ἰμ κ α τ ὰ ὺ ῷ ςνόμ σ α ια ὐ τ κ ιἔχ ε ι, δίκα α τ ν ὶτ ν ῶ σ ῶ ῆ π ςδικά ιτρο ν ἐπ ῦ ι. ζ α ετ ο τ ο ὶν ςσ ,ὥ π εροὗ υ σ ίο ικ ο , ἐν ς ἰδ ὲοἰκία ε 126 It is claimed inIsaios 3.22 thatDiophantos fromSphettos spoke onXenokles’behalf inthetrial (ὃ ςἔλ γ η ε ν ετ ὴ ν ὑ ρτούτο δ ). π ίκ ὲ υ 177) registers 13 such cases brought before the courts. I have subtracted 127 Scafuro (1994: 176– one item from her list, the dikai pseudomartyriôn referred to in Isaios 11.45, since the cases

were still pending whenTheopompos delivered this speech. Wecannot tell whether Theopom-

pos intended to support his witnesses as their synêgoros. I have added twomore: IG II2 1258 andtheDeinarchos title preserved inDion. Hal.Deinarchos 5 (which mustof course behandled with caution). There is no doubt that the speech was a synêgoria, for the opening line runs: , indicating that Agathon has already addressed the court ω ν νἈγάθ κ ε ὥ α σ π ρκ ε ὶα ὸ ὐ τ ςεἴρη himself.

128 Wyse (1904: 369).

ρ ῳ ο ὑ ρἐπ ή υ π mayalso have beendelivered ὲ ικ λ γ ρ ελ γ ία Ἡ ό χ ο η ν υ 129 Dein. fr. LVII (Conomis) σ in aninheritance case. The title given byDion. Hal. Deinarchos 12conflicts with theentry in γ ελ ό χ ᾽Ἡ ο υ θ α μ α τ μ ε νin which the speech is referred to as κ ῖο η νγρα ρ χ ικ ὸ ξ ια Harp. s.v. λ ρ ία γ . ο η ν σ υ

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suggests as a possibility that Archippos’friend brought a graphê hybreôs, acting as

ho boulomenos. However, theuse of synêgoroi is so amply attested in other dikai that Fisher’s ownalternative should bepreferred: that Archippos’friend pleaded as his synêgoros andthat the suit was in fact a dikê aikeias. Finally, synêgoroi areattested inseven speeches concerning damages of varioussorts,130 five of which exceeded theamount of 5000 drachmai. These law-suits maythus have belonged in thecategory of private actions in which each party was allowed the maximum 39 or 52 minutes altogether for the delivery of his first and second speech.131 Although these figures are so low that they do not allow any definitive conclusions as to when synêgoroi were used by litigants in private suits, it is probably no coincidence that synêgoroi appear to have been involved frequently in suits concerning guardianship andfalse witnessing. The laws required a wardto bring any complaints he might have against his guardian(s) within five years after he had reached the age of majority.132 This meant a very early début on the legal stage, and a young mannomore than 23 years oldmight notfeel equal to the task. Until he reached majority, anorphan wassupposed tobeprotected bytheeisangelia kakôseôs orphanou, a public procedure designed toprotect theorphan against hisacting kyrioi. The procedure was open to any citizen whowished to prosecute (whether for purely altruistic motives or for overtly political ones). The use of a synêgoros can thus be seen asa natural extension of theprotection offered bytheeisangelia while theorphan wasstill a minor, andasa compromise between therequirement that the young adult assume responsibility for his ownaffairs andthe realization that he would inevitably be at a disadvantage when fighting his older (and probably more experienced) guardians incourt. Moreover, inthose cases where anorphan hadhad more than one guardian, there would be a risk that the guardians would be backing each other by appearing as synêgoroi in each other’s defence, even in those cases where the wardhaddecided to fight themonebyone.133 The fact that synêgoroi are attested quite frequently in suits concerning false witnessing need notsurprise useither. By taking onthe risk connected with testifying in another person’s law-suit the witness hadrendered a favour to the litigant 130 I have deliberately avoided the designation of these actions as dikê blabês, and chosen the

looser formulation of ‘damages’. Thedikê blabês is often used as a default option bymodern scholars incases about which weknowonly that they concerned compensation of some kind. It is highly likely that the Athenians operated with a large number of very specific private procedures, depending onwhattype of damages were involved. 131 Dem. 36 (20 talents), Dem. 48 (at least 8000 dr.), Dem. 56 (6000 dr. + interest), Isokr. 21 (one talent), Isaios 5 (2/3 of a property yielding 8000 dr. a year). We have two Deinarchos titles ν υ which maysuggest synegorial activity ina similar private suit: fr. LII andLIII (Conomis) σ . η γ ο ρ ία η ςαandβ ρἀδρα β Π μ α ρ π λ ά β ό έν δ ο ο υ ν τ ιὑ π ὲ It is unclear howthespeaking time wascalculated inparagraphai. Keil (1902: 243) suggested ᾽ ᾽ theoriginal complaint, andI aminclined to thatthetime allowance would depend onthesize of agree with him.Theepôbelia payable bytheparties inaparagraphê wascalculated onthebasis of the value of the property originally under dispute, andthis suggests that the amount would also decide the number ofjudges onthepanel andtheduration of theparagraphê.

132 Dem. 38.17. 133 Dem. 27.12; 38 pass. For a discussion of such serial private suits, see Chapter 3: 1.

4. Synêgoroi inprivate

actions

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concerned, andit wasprobably seen as natural that this favour wasreturned by the original litigant intheform of a synêgoria ina subsequent dikêpseudomartyriôn.134 Furthermore, a moral obligation felt bya litigant to defend hiswitness against subsequent attacks mayhave been the only wayof overcoming the witness’ fear of testifying. Thedikêpseudomartyriôn could bea dangerous weapon. Compensations were sometimes huge (Apollodoros claimed a talent fromStephanos, Dem.45.46), andforsome witnesses a dikêpseudomartyriôn also meant facing thethreat of atimia (see e.g. Dem. 29.50 andHyp.4.12, andfurther Hansen [1982]). The person who hadreceived the support of the witness attacked would also be familiar with the details of the case and, last but not least, he would often have a direct personal interest in theoutcome of thedikêpseudomartyriôn. In some cases, a successful prosecution forfalse witnessing could evenleadtothereopening of the previous suit. For example, if the witness was convicted in a dikê pseudomartyriôn of having barred aninheritance suit by means of a false diamartyria, the barwould subsequently be lifted andthe original diadikasia would be allowed to proceed.135 Finally, weknowthat dikai pseudomartyriôn, unlike other dikai, were heard by panels of 500 judges (Isaios 5.20), andHansen (1982: 114– 115) noted that the procedure occupies anintermediate position between public andprivate actions. It cannot be ruled out that litigants in a dikê pseudomartyriôn had more time at their disposal than in other dikai, andthat their court strategies would bear a stronger resemblance to the strategies adopted by litigants in public actions. The remaining twelve private suits for which synêgoroi are attested do not present anypattern that will permit further general observations on procedure, except that synêgoroi, as was observed by Keil (1902: 248), are attested most frequently in those dikai where the litigants hadthe maximum time allowance. They are also attested indiadikasiai where speaking time didnotdepend onthe amount under dispute, butwasfixed atfifteen choes intheperiod fromwhich ourdiadikasia speeches date. It is highly likely that part of the explanation for other attested synêgoroi maybe found intheindividual circumstances of each litigant receiving support (one was a metic, another an ex-metic, andtwowere allegedly poor), but it must be noted that the synêgoriai in support of these allegedly disadvantaged characters were all delivered indikai of long duration.136 134 Isaios 2 andDem.29 were delivered bypersons whohadreceived support from the witnesses nowunder attack. Apollodoros expected that Stephanos would be supported byPasikles, who hadhadanactive interest infending off Apollodoros’attacks (Dem. 45.84). 135 The most recent discussion of the use of dikê pseudomartyriôn is Scafuro (1994). Behrend (1975) provides a detailed discussion of theevidence forthereopening of law-suits onthebasis of successful dikai pseudomartyriôn. Hisargument rests primarily onTheophr. Nomoi fr. F5 = Schol. Plato Laws 937d, a text which is very difficult to interpret. According to Behrend it proves thatonlygraphai xenias, dikai pseudomartyriôn, andinheritance suits could bereopened after theconviction of a witness ina dikêpseudomartyriôn. Scafuro (1994: 171 with n. 80) and Todd (1990a: 37 n. 32) both follow Behrend, but with reservations. Scafuro has shown that most of the attested dikai pseudomartyriôn were fought in connection with inheritance suits, andinthese cases there wasindeed a risk thattheoriginal suit might bereopened if thewitness wasconvicted. ρ ο υ(see also n. 30 above), preκ λ ρ ο είδ ο υκλή δ ν ο ῦἈ ρ ὶτ ίκ ο ε εν υπ ρ ε ρΦ π 136 Metic: Lys. ὑ ὲ

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Tosumup:there is a goodchance thatthelower frequency ofsynêgoroi attested in private suits than in public trials does actually reflect Athenian court-room reality. The shorter time awarded to litigants indikai goes a long waytowards explaining this difference. Furthermore, almost half of the attested synêgoroi appear in those categories of private suit where one would most expect to find them: dikai

epitropês andpseudomartyriôn. This maybeanother indication thattheinformation provided by the sources available is not due merely to coincidence, but that the material does reflect actual Athenian practice in private suits in thefourth century.

5. Witnesses andsynêgoroi

Asnoted intheintroduction tothisbook, there isa marked tendency among modern scholars to treat witnesses andsynêgoroi together. This approach is not completely unjustified, since Athenian litigants sometimes mention witnesses andsynêgoroi almost inonebreath whendescribing their opponent’s panoply.137 Furthermore, the desire among modern scholars toemphasize thefunctional similarities ofsynêgoroi andwitnesses mayhave increased as a result of the current tendency to stress the partisan rôle of thewitnesses appearing inAthenian trials.138 Butthere were importsumably diadikasia, delivered prior tothereduction of speaking time; ex-metic: Dem.36,paragraphê, theamount claimed was20 talents; poor: Isokr. 20, dikê aikeias, it appears from 20.16– 17that thespeaker hadproposed a considerable fine andcompensation; [Dem.] 44, dikêpseudomartyriôn, amount unknown, butprobably considerable (Rubinstein [1993: 13n.67]). It has 822]) thata claimant ina 15: 821– beenassumed (e.g. byHarrison 1971: 64pace Lipsius [1905– private action was to state the amount of his claim only after his opponent hadbeen found guilty; butTodd(1993: 134) draws attention to evidence which conflicts with this assumption, noting that in a number of instances the claimants state their amount from the outset, andhe suggests that this mayhave been a recognized rhetorical ploy’. Inmyview, however, it is not ‘ strategy as an explanation. Presumably it would be the even necessary to adduce rhetorical compensation initially claimed by the plaintiff that would determine the size of the dicastic panel andthelength of thetrial, andtheepôbelia inparagraphai mustalso havebeencalculated onthebasis of theamount claimed bytheoriginal plaintiff. In Dem. 38.2 thespeaker refers to thetimêma claimed byhisopponents inthedikê which henowintends toblock. Inthesummons quoted in [Dem.] 45.46, thetext includes Apollodoros’assessment of thecompensation hewill claim from Stephanos if thelatter is convicted, andalthough caution is called for inconnection with the documents inserted in ourspeeches, [Dem.] 45.46 has been widely accepted as gen92) whorefers to Kirchner (1883), 338), Harrison (1971: 91– uine, e.g. by Drerup (1898: 337– 186) does notcomment onthis document. ProsHansen (1979a: 34 n. 199). Trevett (1992: 182– ecutors inpublic agônes timêtoi also seemtohavestated their penalty proposal prior tothetrial: in Dein. 2.12 it is stated explicitly that the prosecutor in a graphê paranomôn would write his suggestion of timêma on the writ. Furthermore, in Ath. Pol. 48.4 we are told that those who wished to bring a complaint against a magistrate inconnection with theannual euthynai wasto write ona tablet hisownname, thenameof themagistrate, theoffence, andthetimêma accord). κ ῇ ῷ ο δ τ α ὐ ν ιἂ τ ing to his ownestimate (ὅ 137 e.g. Dem. 21.112, 30.3, [44].3; Isaios 8.5. 138 Thesimilarities between synêgoroi andwitnesses wasnoted earlier, e.g. byBonner (1927: 205– 206). The recent debate on witnesses in Athenian courts is vast, andso is therange of interpretations proposed bymodern scholars. Thearticle which hasbeenmost influential onsubsequent

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antdifferences between thetwotypes of supporter, andthese differences increased considerably intheearly fourth century. The element of risk connected with testifying in another person’s law-suit has been given pride of place in Todd (1990a).139 A witness could be sued in a dikê pseudomartyriôn, but this procedure apparently could notbe brought against synêgoroi. Aisch. 2.170 seems to indicate that the position of a witness wasmore risky than that of a synêgoros: here the general Phokion is called to the bêma with the words ‘notyet as a synêgoros, with the audience’s approval, butas a witness who will be responsible to this sykophant if he lies’(μ ή π γ ρ ω ή ο σ ο ν υ ,ἂ ν ντού τ ο ιςσ υ ν ϕ μ ρ ρ τυ α ά ῃ ά , ἐὰ ν τ ν ῷ σ η ψ υ κ τ εύ ο α δ ο δ κ θ εύ ν ο ι). ᾽ὑπ υ ν ῇ τ ,ἀ λ λ This is not to say that synêgoria was risk-free; but the risk for synêgoroi was of a different kind (and in some respect more serious), in so far as they would lay themselves open to prosecution by a public action for having assisted a litigant in return forpay.140 The important difference is that a synêgoros apparently could not be taken to task for having lied, only forhaving been paid, andthis maywell have resulted in different attitudes to the statements made by synêgoroi andwitnesses respectively. This is probably oneof the reasons whywesee some supporters appearing twice in the same trial butin different capacities, as in thecase of the synêgoros whodelivered Isaios 12:in 12.1hestates that hehasgiven testimony together with his relatives, andin 12.4 that hehasmade himself hypodikos as a witness. This tactic is paralleled inAisch. 2.184 where Phokion, after hisfirst appearance as a hypeuthynos witness in 2.170, is called to the bêma again, only this time as a synêgoros.141 Anglo-American scholarship remains that of Humphreys (1985), whose (judicious) position is 115). Formorebalanced intertaken toanunacceptable extreme byD.Cohen (1995a: esp. 107– pretations of theAthenian material seealso Todd(1990a) andCarey (1994c), (1995). 139 While I findTodd’s risk-model attractive, I seesome basic problems inneedof further explanation. Todd argues that themain function of the witness wasto demonstrate his support of the main litigant’s case. This demonstration wasachieved through thewitness’sharing in the litigant’s risk bylaying himself opento thedikêpseudomartyriôn. ButTodd’s model assumes that the main litigant’s credibility andthestrength of hiscase were perceived bytheAthenians to reduce therisk towhich hiswitness wasexposed. Inreality, itseems tohavebeentheother way around. Thequestion ‘whenis a witness mostatrisk?’maybeanswered intwodifferent ways. One answer is indicated by the remark in Aisch. 2.170: ‘When he lies!’Another answer is ‘Whenthemainlitigant winshiscase!’Therisk runbythewitness wasinversely proportionate to thesuccess of themainlitigant, simply because a losing opponent would bemore motivated forreopening thecase through anattack onthewitness. Although weknowof some examples of litigants following uptheir success with further attacks onthe loser’s witnesses (e.g. Isaios 3), there are more examples of losers reopening their lost cases by means of dikê pseudomartyriôn. I hope to address this problem ina separate article. 37). It mustbe noted, though, that wehave 140 The difference wasnoted already byLeisi (1907: 36– noexamples of suchactions having beenemployed against synêgoroi, andit mayhavebeenan extremely rare occurrence. 141 The dual rôle of supporters as both synêgoroi andwitnesses mayhave been more widespread thansuggested bythefewattestations inourAthenian material: theinscription IKKnidos 221.40– 42 (ca. 300 B.C.), which provides the framework for legal disputes between Kalymna andthe citizens of Kos, allows each side a maximum of four synêgoroi whoarealso allowed to testify. Theklepsydra is to bestopped while testimony andother documents arereadoutbythegram-

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But more important is the fact that the synêgoros spoke, while the witness would address thecourt in the fourth century, except in those cases where he refused to testify and would have to take the oath of exômosia.142 The contrast between the twotypes of supporter is highlighted in Dem. 21.139:

nothimself

Butnow, I believe, Polyeuktos, Timokrates, thedusty Euktemon will cover him. People such as these are on his pay-roll, and, in addition to these, yet others, a gang of witnesses whoare not harassing youopenly, butwhowill most readily nodapproval of the lies in silence.

᾽ η ν ῦ νδ , οἶμ α τ η ι, τού α ρ ιΠ ο ά λ τ λ ύ τ κ ο ς κ , Εὐκτή ευ έβ ο , Τιμ ρ ς τ ο υπ οβ μ ω νὁ κ ο ν ιο ρ · τοιοῦ τ ό ς τ ϕ ρ ,κ ο α ν ὶπ ὸ ίτιν ρ ᾽ἕτερ ο ὶα ό ὐ θ τ ςἔθ έ ισ ε ιπ ςεἰσ ο ρ ο ιμ ι ό ῶ α ὲ ν ςμ ν κ ο ἐν ο ερ ὐ χ ρ λ ρ τ ω ν τ ο ύ τ ο ύ σ ύ υ ,ϕ ο ν ν ις α εία τ εσ ω ,μ ᾽ἑτα τ ῶ σ ν μ ιρ ὑ ῖν , ᾽ἐπ σ τ ῇδ ιν σ ιγ εύ ὲτ ὰ ῆῥᾷ ο . ν ν ψ τ ω ευ δ

Thedifference between silent witnesses andobtrusive vocal supporters wasa fourthcentury phenomenon. It is universally recognized that theAthenians abandoned the use of oral testimony in the lawcourts at some point in the early fourth century, although there is disagreement over the precise date of the reform.143 Before that point witnesses could address thecourt with words of their own, andthey could be interrogated. This change in legal practice hasattracted interest notleast from those scholars whodebate Athenian literacy andAthenian attitudes to written documentation. The introduction of the requirement that evidence provided by witnesses must be submitted in writing prior to the trial andread outby the court attendant hasbeen seen as an indication that the use of writing andthe confidence placed in written documents grew in the fourth century.144 Such confidence in thewritten wordis voiced 45) that the by Apollodoros in Dem. 45.44 and [Dem.] 46.6, whoclaims (45.44– reason whytestimony has to be submitted in writing is that nowitness would ever be convicted in a dikê pseudomartyriôn unless his evidence wasfixed in a written text. These passages have been cited frequently in the discussion of the reasons behind the legal reform. mateus (ἄ ν ε υὕδατο , line 45), butthe synêgoriai seem to have counted against the litigant’s ς ration of water. 142 Onexômosia see Carey (1995). 143 A crucial passage is Isaios 5.2, which some scholars have emended inorder to date thechange 35) argues fora date intheveryearly fourth century and tothe370s. Ruschenbusch (1989a: 34– 80: 315) prefers the connects thereform withtheinstitution of public arbitration. Rhodes (1979– 311). It should later date, butis more cautious in a recent discussion of the reform (1995: 310– be noted that Rhodes’ (1995: 310 n. 31) latest evidence for oral testimony, Lys. 16.8 (ca. 390 η σ α ν , thestandard forρ τ ρ ύ α α ὶμ ικ ο ιδ θ η έμ β ά ν B.C.), is notconclusive. First, the wording ἀ mula used to introduce witnesses in this speech, shows that the witnesses would appear onthe bêma, butthis mayhave beenonly inorder to nodtheir assent to thetestimony readout. Second, even if it is assumed that the witnesses here didtestify orally, it must be remembered that the speech wasdelivered in theboulê rather than ina dikastêrion, andit is quite possible thatdifferentrules applied to hearings there. 72). 149), W.V. Harris (1989: 71– 144 Thomas (1989: 43) and(1992: 148–

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While there is nodoubt thatthereform itself testifies to a growing useof written documentation, a change in attitude to the written word, anda realization of the advantages of (unalterable) written testimony in connection with the dikê pseudomartyriôn, thereform mayhavebeenmotivated byother concerns aswell. Onesuch concern is that witnesses whogave their evidence orally could be used to upset the level playing field of the court room, a level playing field which the Athenians attempted tocreate bymeans of theklepsydra. Before thereform, Andokides could introduce hiswitnesses withthefollowing words (1.69):

Andyou, call methose whowere released thanks to me. For they, whoknow best, will be best at relating to the court what happened. That’s the wayit is, gentlemen. They will come upand address youfor as long as youwould like to listen, andafter thatpoint I shall defend myself against the other charges. ρ ο ειτ ὺ λ ισ γ ρἂ ιαὐτο ὺ ο ςκά έ. ἄ τ α ὰ έν ςλυθ τ α νεἰδό ι᾽ἐμ σ ὺδ έμ ςδ τ ε ςτ ὰ γ εν μ ό εν α λ έγ ο ιε ν ε ἰςτούτο υ ρ ·μ έχ ς . οὑτω ιτού ρ ε σ ὶδ ς ν δ ε ἄ ὲἔχ ι, ὦ τ ο υ ἀ ν α ή β σ ο ν τ α ικ α ὶλ έξ ο υ ῖν σ ινὑμ , ἕω η σ ο θ ρ ύ λ ο ᾶ ε θ α ιβ σ , ἔπ ςἂ κ νἀ ειτ α ᾽ἐ γ δ ὼ μ ή α σ ο ι. γ λ ω νἀ π λ ο λ ο ν ἄ ῶ ὶτ π ερ

The dangers of oral testimony are evident from this passage. Thür’s claim (1995: 329) that witnesses would normally have limited their oral testimony to brief answers to very precise questions undoubtedly applied inthe majority of cases. ButtheAndokides passage suggests that some witnesses did indeed go further, and it also gives anindication howthis type of testimony could beusedfortactical purposes by individual litigants. The passage suggests that the only control over the witnesses and the length of their address would be exercised through dicastic thorybos, and unless the audience indicated in clear terms that they hadhadenough, wemayassume that the witnesses could go on indefinitely. Andwhat does Andokides ask his witnesses to relate? Clearly, more than just the ‘fact’that they hadbeen released γ through his agency: they are to tell the court ‘what happened’(τ μ ὰ εν ), which εν ό α might very well be ‘the whole story’–including an encomium of Andokides which would normally beexpected notfrom witnesses butfromhissynêgoroi. There is no clear distinction between a witness giving that sort of oral testimony and a real

synêgoros. Andokides was not the only litigant whoexpected his witnesses to produce lengthy contributions that would supplement his ownpleading. In Lys. 17.2, a speech delivered in 398/7, some of thespeaker’s witnesses appear to have taken over part of the narrative after thespeaker’s prooimion.145 That it must have been difficult to distinguish clearly between witnesses giving oral testimony andsynêgoroi proper in thefifth andearly fourth centuries maybefurther indicated bya reference tothetrial 673. Here Apollo appears in support of of Orestes in Aischylos’ Eumenides 576– Orestes, having introduced himself as a witness as well as a syndikos.146 He is, in

η η δ α ν ν α θ είσ θ σ ό α ι, ὧ τ ίο ν ἐδ ν θ ἐν α γ εἐδεή ν ρ κ γ ιο ν α ὶὡ ό ύ τ ρ ςτοσοῦ β 145 ὅ ετἀ α ν ο ἔλ τ ν ὖ ὲ ιμ η ,ο ή θ ἱμ ᾶ ϕ λ ελ λ ό ν ο τ εἐμ ῦεἰδό τ ες ῷ κ α ὶὅ σ α ὠ τ ὐ α τ οα ᾽ἐχρήσ μ δ ρ έξ ρ μ ά ρ μ ιἃ τυ α α π α ῖν ο ςὑ σ ο ρή υ ρτ σ ι. υ α τ μ α α ῖν κ ὶμ ιὑ ιο ο τ μ εδιηγήσον έν τ α ρ ἷς η ο εῖν ςἔπ γ εν γ ε α ρ α κ α ὶπ ·ἐκ ό ν έσ ο ρκ υδ τ ὴ ιο ᾽ἁ η ν ,ϕ α ὲ ῳ ν ῶ ν ὶδόμ ω ἱκ ςὅ ἐϕ ςἐμ έτ –ἔσ δ ρν μ τ ὰ ιγ ό ἧ λ ν θ ο 146 κ ή σ ν ω ρ α ρ τυ α ὶμ

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fact, theonewhocarries themainpart of thedefence acting as witness andsyndikos simultaneously, and it is impossible to distinguish between his two functions in the trial. Inpublic actions, atanyrate suchaswere fought ina hêmera diamemetrêmenê, the strategy of leaving part of the narrative or argumentation to one’s witnesses would nothave serious implications, since thestatements bywitnesses aswell asthe contributions fromsynêgoroi proper would havecounted against themainlitigant’s ration of water.147 But in a private action, where the klepsydra wasstopped during testimony, thetactic of disguising one’s synêgoroi aswitnesses could serve asa way of hijacking the entire procedure to the detriment of one’s opponent. If witnesses were allowed to goonatlength because a sympathetic (orcurious) audience hadno will to stop them, the whole procedure could spin out of control, andthe balance created by equal measures of water granted to the twoopposing sides would have been upset in a serious way. If thecourt hadbeen assigned more than one private action ina single court day, thetime lost would presumably have toberecovered by reducing thespeaking time of theopposing litigant, orbycancelling oneor more of the subsequent law-suits on the court’s schedule.148 For that reason, it may have been seen as imperative to drawupa clearer line of demarcation between witnesses andsynêgoroi, andthis would have been achieved through the rule that testimony was to be submitted in writing andread out by the court attendant. It cannot be ruled out that it was a fourth-century innovation that the klepsydra would be stopped during the presentation of testimony andother atechnoi pisteis in private actions, andthat the tworeforms were made simultaneously. The earliest evidence wehave for a litigant asking for the flow of water to be stopped is Lys. 23.4, delivered in an early antigraphê (Todd 1993: 168 with n. 1) or paragraphê (Isager andHansen 1975: 124 with n. 5). On the other hand, we have no extant speeches delivered in dikai heard by ordinary dikastêria dating from the fifth century, so anargument from silence carries noweight at all.149 Thus, it is possible to interpret theintroduction of written evidence incourt asa reaction to an existing situation which was felt to be unsatisfactory, because it offered scope for litigants to gain more pleading time byletting their witnesses act as synêgoroi while the klepsydra was stopped. Alternatively, it may have provided a means of preempting abuse of a (new?) rule that, in private actions, the litigant should have unlimited scope forintroducing pisteis atechnoi which hadalready been brought upin the preliminary procedures of anakrisis and/or diaita in support of his position. ό . It is interesting to note that Apollo justifies his τ ς ὐ α σ ν ω ᾽ἐ α γ ὶσυνδική ὼ ῷ κ δ ρ α θ σ ιο ά ς–κ τ appearance as syndikos by stating that he himself wasultimately responsible for the murder of Klytaimnestra.

147 Ath. Pol. 67.3 with Rhodes (1993: 722). See n. 33 above. 148 Onecourt heard several private actions in a single court dayalready in the fifth century (Aristophanes Clouds 776– 780). 149 Ant. 1 and6 were both delivered in homicide trials where the rules relating to witnesses may havediffered considerably fromtherules applying inprivate actions heard byordinary dikastai, andthese differences mayhave beenmaintained inthefourth century as well.

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These explanations mustremain conjectural, however. It is always tempting for the historian to link attested political and legal reforms with wider ideological developments

or changes in general

attitudes (such

as the increasing

willingness

to

rely onwritten documentation), or,alternatively, toexplain a particular reform asa

response to a single practical problem. The attempt to connect the introduction of written testimony directly with a development of the dikê pseudomartyriôn is an example of thelatter type of explanation. Butreality is hardly ever assimple asthat, andthe reforms of Athenian legal procedures andadministration of justice in the early fourth century mayhave been motivated by a variety of concerns, ideological as well as practical. The introduction of written testimony mayhave been made in response to a whole complex of problems relating to legal proceedings in general, including the problem relating to witnesses whoacted as synêgoroi in disguise. It mayalso conceivably have formed part of a larger programme of reforms imposed onthe legal system as a whole, especially reforms connected with the preliminary procedures thatpreceded theactual confrontations between thelitigants inthecourtroom. The reasons for the shift from oral to written testimony will undoubtedly continue to cause debate anddisagreement among modern historians; on the other hand, there is no doubt that one of the effects of this reform was to widen the gap between witnesses andsynêgoroi. While it maysometimes have been difficult to tell the two types of supporter apart in the fifth century, they developed into two distinct categories in the fourth century, each of which would serve different tactical andrhetorical purposes.

Chapter

3: Sharing Risks

In theprevious chapter it hasbeen argued that Athenian litigants would frequently avail themselves of rhetorical support from synêgoroi, andthat this type of support should bedistinguished fromthesupport offered bywitnesses, atleast whenweare considering thenature of court-room collaboration inthefourth century. So far, the evidence discussed hastaken into account only suchinstances where there areclear indications that the supporters inquestion didin fact address thecourt in words of their own. While wecanbe confident that persons referred to as katêgoroi or synêgoroi actually delivered anoral contribution, the expression ‘myopponents’ (oἱ ο ίδ ι, οὗτ τ ικ ν ἀ ο ι, etc.) is not necessarily an indication that there were supporting speakers involved ontheopposing side. A mere witness whodidnotopenhismouth could be represented as an opponent’,1andso could those people whohadgiven planning without necessarily appearing on the advice and assisted in back-stage ‘ bêma.2

There are a number of instances where there canbe nodoubt that several personswereinvolved oneither side, butwhere it is notclear whether theymounted the bêma as supporting speakers or as witnesses or as actual parties to thecase. These examples have notbeen included intheinvestigation inChapter 2 orinTable 1,but in this chapter it will be argued that it is probable, though by no means certain, that suchpersons often addressed thecourt assynêgoroi. Another andfar more serious problem is to decide whether all those persons whoappeared asjoint speakers were indeed synêgoroi only, that is, whether they were participating in the proceedings without running therisks connected with losingtheaction, orwhether they could sometimes beparties to thecases dejure, and as suchbe liable to a share inthelosses aswell asthegains. It is normally assumed bylegal historians that, inprinciple, nomore than one defendant could betried ata time, andthatthis basic procedural rule applied toboth public andprivate actions. As far as prosecutors or plaintiffs are concerned, it is taken for granted in most recent discussions of Athenian litigation that there was always only one individual whocarried legal responsibility for a legal action: he assumed that responsibility by entering his name onthe writ of summons, andhe alone would carry the statutory risks if he failed to win the required 20% of the

votes. There is no single attested graphê or dikê about which we know with absolute certainty that more than one person hadassumed full legal responsibility for the action. Ontheother hand, there area significant number of legal actions which may have been initiated by more than one person, andfor which theevidence certainly 1

2

53, Dem. 40.58. e.g. Isokr. 18.52– The references to such supporters whojoined in staging other people’s private litigation are 33. 36; Isaios 8.3; Dem. 33.18; 40.32– legion: e.g. Ant. 6.35–

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allows that interpretation. In anycase, it is important that the question should be raised at all andthe evidence reassessed, for it is central especially to the current modern reconstructions andinterpretations of Athenian litigation in public actions as a defacto privilege of the top5 to 10 % of theadult male citizen population (e.g. Christ [1998: 33]). The legal position of the supporting prosecutors in a public action of the ordinary graphê type hasreceived very little attention from modern scholars, even from those whohave been aware that multiple prosecution wasa widespread phenomenon.Thequestion whether one, several orall volunteer prosecutors onsucha team would be personally responsible for the action in which they participated has not beenproperly addressed inrecent scholarship. If weturn to theGerman scholars of thefirst half of the 20th century whodidtake a stand onthis issue, theuncharacteristic lack of footnotes in the relevant sections should set some alarm-bells ringing. Theproblem aswell astheinconclusive nature oftheevidence wererecognized 15: 909– 910), fully by Meier andSchömann (1824: 710 n. 22), butLipsius (1905– whose work superseded Der Attische Prozeß, asserted with confidence that several persons whojoined ina public action asprosecutors hadtoassume joint responsibilityfortheaction: ‘Inpublic actions ofgreater significance a plurality ofprosecutors would join together, as happened in the prosecutions against Androtion and Timokrates byDiodoros andEuktemon, inbothof which cases Demosthenes wrote a prosecution speech for Diodoros. It wasleft to the prosecutors to agree among themselves howthey wanted to divide the prosecution between them during the court hearing. The first andmain speech wasdelivered by Euktemon in the action against Androtion, and by Diodoros in the action against Timokrates. They would have shared the risks of theprosecution between them’(myitalics).3 Lipsius offered noevidence in support of his last and, inthepresent context, most significant statement. Lipsius, in turn, wascontradicted with equal confidence by Kahrstedt (1934: 305) whoclaimed notonly that supporting prosecutors were exempt fromtheprosecutor’s risk, he also asserted that only oneperson (or, alternatively, thepolis collectively) could assume legal responsibility fora public action. Harrison (1971: 160) simply noted that ‘[i]t is not certain whether in such cases one of the accusers alone stood asinitiator, andtherefore alone bore thebrunt of a fine if notmorethan a fifth of the votes were for condemnation, or whether they shared this liability’. To my knowledge Harrison’s aporia has so far been the last word in the debate on this particular issue, except inregard to thepublic actions of eisangelia andapophasis. Acharacteristic of theapophasis wasthat it waspresented incourt bya team of prosecutors whohadbeenelected bytheAssembly after theAreiopagos hadreportedtheresults of its preliminary investigation. Some scholars also believe that mul-

3

Füröffentliche Anklagen vongrößerer Bedeutung trat einMehrzahl vonKlägern zusammen, ‘ fürdie Anklagen wider Androtion undwider Timokrates Diodoros undEuktemon, fürderwie enersteren Demosthenes beidemal dieeine Klagerede schrieb. Wiesich dieAnkläger dann in die gerichtliche Vertretung der Anklage teilen wollten, wird ihrer Vereinbarung überlassen gewesen sein; gegen Androtion hielt Euktemon, gegen Timokrates Diodoros dieerste undHauptrede. DieGefahren derAnklage werden sie miteinander geteilt haben.’

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tiple prosecutors were elected in eisangeliai to the Assembly, at least in the fifth century.4 Were there anyrisks connected with this type of legal participation, andif so, what was the nature of these risks? The fact that such prosecutors hadbeen appointed by election to conduct a prosecution in the name of thecommunity as a whole does not necessarily rule out that they would be held personally liable if their team failed to gain therequired 20%of thejudges’votes. They hadvolunteered to join, andthere is noobvious reason whytheir participation should berisk-free. Afterall, mostactive participation in therunning of theAthenian democracy imposed some risk on the volunteer, even on the humblest magistrate selected by lot. The position of such elected prosecutors will be discussed in Section 2c of this chapter. In what follows I shall first address theproblem ofjoint defence with regard to private as well as public actions. Theevidence fordefence practice allows a tentative conclusion that in both types of procedure only one individual could be prosecuted in a single action, but that prosecutors or plaintiffs would often attempt to present a series of actions involving different individuals as interrelated, claiming that the outcome of onecase would determine theoutcome of thefollowing actions in the series. This has particular relevance to private actions where several cases could be assigned to a court to be heard ina single court day, andwhere it is highly likely that a single dicastic panel mayhave heard a series of related cases. Inthesecond section of thischapter I shall address theproblem ofjoint prosecution, again discussing both private andpublic actions. However, thelatter category will receive more attention than the first, notonly because it presents more difficulties, butalso because of theimportance ascribed tothenotion of thesingle boulomenos inmodern discussions of Athenian public actions andtherôle of thecourts in the political life of the polis.

1. Joint defence a. Public

actions

We know that in principle there could be only one defendant in a single public action. If wecantrust Xenophon’s account, whatwasseen as themost scandalous aspect of the famous trial of the generals after Arginousai in406 wasprecisely that sentence waspassed onthedefendants collectively.5 There is, however, onepiece of 4

5

57) discussing the fifth century. MacDowell (1978: 62) andDe e.g. Ruschenbusch (1968a: 56– Bruyn (1995: 66) accept that elected prosecutors sometimes pleaded ineisangeliai to the Assembly. Carawan (1985: 118 n.7) interprets this practice infifth-century Athens as a survival of a ‘restriction against prosecution by non-Areopagites’. The evidence (Plutarch only) is dis33). missed by Hansen as inconclusive (1975: 31– Euryptolemos’ objection to the procedure proposed by Kallixenos in the boulê centres on the unlawfulness of a collective sentence (Xen. Hell. 1.7.18, 21, 23, 32), andhiscounter-proposal , Xen. ν τ ο α σ ἕκ α ίχ α ςδ ὺ ο ςἄνδρ ιτ α θ asparaphrased byXenophon contained theclause κρίνεσ Hell. 1.7.34. See also Plato Apol. 32b andXen. Mem. 1.1.18. Carawan’s claim (1987: 174) that a collective trial was not seen as the main problem rests on a misinterpretation. He interprets α μ ῃ ,κ α ὶἅ θ εδίκ σ νβούλη εᾗἂ θ ε ςκολάσεσ τ α ςεἰδό τ Xen. Hell. 1.7.19 κ ῦν ο ο ὺ α δικ ὶτ ςἀ

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evidence that hasbeentaken toindicate that somepublic actions could involve several defendants whoall stood to bejudged bya single voting procedure. Lys. 22 was delivered in 386 in a public action of unknown type. The case concerned several corndealers whowere accused of having profited illegally from buying upgrain during a period whenAthens wasexperiencing a shortage of supplies andof having colluded inraising theprices. Theextant speech delivered onthe side of theprosecution suggests thata vote fortheprosecution after a single hearing would result in the collective punishment of all the corndealers involved in the action.6 For that reason, Hansen (1975: 118 n. 12) stated that the case was ‘handled unconstitutionally’. There are other procedural anomalies in the action against the corndealers, notleast thespeaker’s claim that theboulê came very close to executing the defendants without a trial (22.2). Some scholars have suggested that the metic status of the defendants meant that they enjoyed less procedural protection than Athenian citizens.7 It maywell bethat theAthenians wereless scrupulous inupholding procedural principles when it came to non-Athenians,8 but Lys. 22 is not a particularly good example of a collective public trial. In fact, there is nopassage in theextant speech which allows a firm conclusion that a collective sentence would be passed if the judges returned a verdict of guilty. Andthere is nocompelling reason for assuming thatthecase wasconducted inbreach oftheprinciple thateachdefendant ina public action wasentitled toconduct anindividual defence. First, it is worth noting thatonlyonedefendant is questioned in22.5. Theplural η τ ) inthespeaker’s summons of thedefendant to ε β μ ὲ ρ ν ῶ ἀ τ ν ν ο α ά ὶπ imperative (κ the bêma (22.5) is a conjecture made by Frohberger andaccepted by subsequent editors.9 Hude(1912) noted consensus codicum infavour of thesingular imperative

ν ᾽ἕν tomeanthatEuryptolemos doesnotobject tothegenerals’being ο σ τ α α ἕκ θ α ν τ α π ά α ὶκ ςκ tried collectively. Butthepassage means ‘whenyouknowwhoareguilty, youmaypunish them

6 7

8

9

with whichever penalty youlike...’ Pace Carawan (1987: 175 n. 12) Kannonos’decree must havecontained a stipulation regulating thehearings ofcases brought onthebasis of thedecree: Schol. Aristophanes Ekklesiazousai 1089 cites Kratinos (emended bysome editors to Krateros) ρ ὸ ςκλ . ν α εψ ύ δρ for the information that the decree prescribed a hearing π e.g. Lys. 22.19. 148) followed by 85), Rhodes (1972: 180), Gauthier (1972: 144– Gernet andBizos (1926: 83– 317). There is disagreement as to the type of pro96), Todd (1993: 316– Whitehead (1977: 94– cedure employed: phasis (Gauthier [1972: 145], Rhodes [1972: 153], Whitehead [1977: 95]), apagôgê or eisangelia (Hansen [1975: 41], Todd [1993: 316]). All the scholars mentioned in n. 7 have taken at face value the speaker’s claim that the boulê cameclose toexecuting thecorndealers without trial, hadit notbeenforourspeaker’s intervention. Thecontext of hisnarrative, however, calls forcaution. Thespeaker is trying tojustify his owninvolvement inthecase inorder tocounter theaccusation thathehadchanged sides inthe course ofevents. Changing sides ona particular issue meant thatonewasopentoallegations of bribery, soourspeaker mayhave wished toexaggerate theheat of thedebate in theboulê. The wish to preempt accusations of bribery is undoubtedly animportant reason whypersons who attempted to persuade thecouncil or Assembly to adopt a moderate course of action towards defendants in moments of crisis felt theneed to present their intervention as a modification of 17; the prosecution’s case rather than as open support of the defendants (Xen. Hell. 1.7.16– 470). Aristophanes Thesmophoriazousai 466– Thalheim (1905), Hude(1912), Gernet andBizos (1926).

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η θ ι.10I see noreason for rejecting thetext of the manuscripts, anda further β ν ά ἀ argument in favour of reverting to it is that, in 22.6 and7, the speaker does indeed refer to theopposing party inthesingular.11 It appears from 22.6 that thespeaker is anticipating a defence that will be made by this particular individual who has just been questioned. The speaker’s attempt to convey the message that a conviction in the present trial will meantheconviction of all thecorndealers canbeexplained asa rhetorical strategy, which wasemployed frequently by Athenian prosecutors. In a series of trials where a number of persons were tried for the same offence, the expectation seems tohavebeenthattheoutcome ofthefirst case would affect theoutcome of the subsequent trials. A prosecutor might thus choose to represent his opponents as a group rather than focussing onthe particular defendant presently ontrial, because hepretended (andperhaps expected) that thepresent verdict would establish a kind of internal precedent.12 Thus, Lys. 22 constitutes noclear exception to therule thateachdefendant ina public action wasentitled to defend himself individually andto an individual voting procedure. Weare left with the trial of thegenerals in 406 as theonly attested instance where wehave reason to believe that the Athenians strayed from that principle. Andwhen the Athenians eventually regretted their conduct, they decreed that the persons responsible for the trial should all be prosecuted –individually (Xen.

Hell. 1.7.35).

b. Private actions

Anargument by analogy that the principle one defendant, one action’must have applied in private suits as well as in public‘actions does not carry much weight. Manyinternal inconsistencies canbedetected intheprinciples governing Athenian administration of justice, and it is perfectly conceivable that practice could vary

considerably between private andpublic procedures, especially since theAthenians made fewsystematic attempts to formulate fundamental legal doctrines that would regulate litigation in general, across therange of different types of action.13

θ η ε(sic!) incod. Palatinus 88 in 10 Gernet andBizos (1926) noted (wrongly) only thevariant ἀνάβ their app.crit.

,ὦ ἄ ν α λ δ ς ρ ώ π ο ιτο ε ὺ ςσ ιτ ε ςδικα εύ ο μ ελ τ ςὃ σ ςκ ῃ ι νό τ α ςἔσ ί, ὡ ντοίν ὲ υ νἀ νμ π ο δ είξ 11 Ἂ μ ν ὴ ν , ὲ ν τ υ ο ίν ρ ϕ θ ε ίσ . (6) andχ α σ η ο ψ , ἀπ ιν σ ω εύ τ ε ςκελ ο ν ἱἄρχον ,ἂ ν ν σ ο ν ε ῖτ ν ῖσ ω θ α ιτ ὸ σ υ μ γ ε ῖσ υ ο μ ο λ τ ὴ ὗ ο ο ὁ ν ὲ ςμ ν , ἐπ ρ ία ειδ ο γ η τ α κ ν ὴ ντ η τ α ιταύ ν εἶν ὴ ρ ε ν ν ὦ ἄ δ ςδικα α ί, ἱκα τ σ η κ α τ εψ μ ό ω υ ο ςὀμ ο ὺ τ ςνόμ ὰ τ ῖςδ ε α ὲκ ι, ὑμ α ετ ίν α νϕ ρ εύ ρ ω ιᾶ σ γ ο π θ α ι, ὁδ ο μ α ςἀπ ὲνό ϕ ιε ῖσ θ α ι. (7) 7 12 The interdependence of verdicts passed in ‘serial trials’is assumed in Hyp. 1, fr. III cols. 5– andDein. 1.113. Thespeaker of Lys. 27 blames thejudges forinconsistency ina previous series of trials, whenthey acquitted Epikrates after they hadconvicted Onomasas onthesame charge. (27.4) See also the discussion in Chapter 4: 3. For a complaint that such internal consistency wasnotalways achieved, see Lys. 19.6. For further discussion of ‘internal precedent’in private suits, see below in this chapter. 13 It will suffice to draw attention to the celebrated ‘principle’ that nocitizen must be executed

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Inhisintroduction toDem. 34, a speech delivered ina complicated paragraphê, Gernet (1954) held that there could be only oneperson acting as plaintiff in a dikê andthat only oneperson could be sued; buthedidnotadduce evidence insupport of his claim. Harrison, on the other hand, believed that several plaintiffs could bring a joint dikê andthat a verdict could be passed onseveral defendants at a time (1971: 160).14 Harrison drewattention tothree speeches, Dem.34, 38 and47, which will be discussed below. According to Harrison, the dikê in support of which Dem. 34 (a paragraphê speech) wasdelivered involved twooriginal plaintiffs, Dem. 38 was delivered inaparagraphê involving twooriginal plaintiffs andfouroriginal defendants, andDem. 47 wasdelivered in a dikê pseudomartyriôn against twodefendants whohadgiven identical testimony ina previous suit. Harrison suggested that, when several persons were involved on either side in a single dikê, they shared equally between them the gains andlosses of the suit. If Harrison is right, we must imagine that twoor more defendants could bejudged together ina single voting procedure, which would prove perhaps the most remarkable difference between thelegal principles governing private suits andthose that were applied in public actions. Onthe other hand, if it is accepted that there could beonly onedefendant ina single suit, it is possible that references to several opponents in the speeches delivered by plaintiffs in dikai are indications that the defendant was supported by synêgoroi.15 There is evidence to suggest that individual citizens could confront religious organizations andcivic subdivisions asgroups. Isaios 12.11 refers toa previous dikê inwhich notonly thedemarch butalso thedeme asa whole were sued, andseveral people seem to have been actively involved in arbitration onthe side of the deme. Whitehead (1986: 128– 130) suggests the possibility that individual members (not necessarily the demarch) could act officially in the name of the whole collectivity, andthat a deme could both sueandbe suedcollectively. In disputes over property theoutcome of a private action would presumably affect thedemeasa whole rather than named individual members, andinsuch actions thedememayhave beenperceived byjudges andparticipants alike as a single defendant. Inthis particular context, thedemes maybetheclosest wecangettoorganizations with ‘juristic personalities’(Finley [1952: 89]), but as such the demes mayhave been exceptional. 60) relates how As forother types of association, Apollodoros (Dem. [59].59– Phrastor brought a dikê against his gennêtai, andnumerous people seem to have 11refers to a been involved in arbitration onthe side of thegenos.16 IG II2 1258.4– legal dispute between some unknown individuals andtheorganization of theEikadeis.17 It appears fromtheinscription that some of themembers of theorganization without trial, hailed as the hallmark of democratic justice; butwhich didnotalways apply in apagôgai andendeixeis. See Hansen (1976: 18, 114and119). 14 See also Lipsius (1905–15: 910). 28, 55.3, 8, 21, 6, 10, 13,26– 23, 45, 48, 17.2; Dem.42.32, 45.2, 19,43, 47, 54.4, 5– 15 Isokr. 16.22–

56.28, 37, 43. 16 Carey (1992: 117) argues that theproceedings wereconducted bya state arbitrator. 17 Lambert (1993: 365) argues thattheEikadeis mayhavebeenagenos, buttheevidence isincon201). Here clusive. See also themore detailed discussion of IG II2 1258 inLambert (1997: 199– it is suggested that the dispute was an internal one that haderupted between twodifferent branches of theassociation, perhaps over thesale of communal land.

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hadtestified for the opponents of the Eikadeis at the trial. The phrasing of the text in regard tothis legal action suggests thattheorganization hadindeed beentaken onas a collectivity (lines 4–12), i.e. as the sumof all its members, as has recently been formulated by Jones (1999: 12– 13). That the votes placed in a single ballot-box could decide the position of more than one individual is known from diadikasiai. Diadikasiai differed from dikai in that all litigants were onthe same footing. In those cases where a diadikasia klêrou was re-opened, all claimants had to pay a deposit (parakatabolê), and all ran the same risk.18 Several relatives of the same degree could share speaking time, kadiskos and, if successful, the inheritance between them.19 The diadikasiai show that the Athenians didsometimes operate formally withgroups inlitigation rather than with single individuals. It is also interesting to note that most attested law-suits in which larger organizations, civic aswellasreligious, confronted eachother, orinwhich an individual asserted a claim against a larger organization seem to have been diadikasiai.20 The existence of diadikasiai of this type makes it risky to assume a priori that twoor more persons could notbe suedin thesame dikê. However, theevidence that wehaveforordinary dikai doesnotinfact support theclaim thatseveral individuals could be sued collectively. Dem. 38 and47, the most important basis for Harrison’s case, provide the only indications to the contrary, andthere are passages in both speeches which suggest that only onedefendant wasstanding trial at a time. Dem. 38 wasdelivered in a paragraphê brought in response to no fewer than eight dikai initiated by Nausimachos andXenopeithes. They were each suing four brothers in order to recover the sumof 3000 drachmai allegedly owed to them by

18 Rubinstein (1993: 39 n.17). 19 Isaios 11.21, see also Harrison (1971: 96). That practice could vary is perhaps suggested by Dem.48.29. Thespeaker andhispaternal half-brother whowere both claiming the inheritance left byKomon wererelatives of thesamedegree. Evenso,theyseemtohaveacted independentlyof eachother, each laying claim tohalf of theinheritance. Butthecase related bythespeaker is untypical in that the speaker hadconspired with a rival claimant and‘sat in silence onthe other platform’, thus letting his half-brother down andallowing the rival claimant to win. See Calhoun (1918). That the form of procedure could lead to complications is evident from the diadikasia that resulted in the ousting of Phylomache, daughter of Euboulides, from theestate left byHagnias. Theevents at this action arerelated in indignant tones byPhylomache’s hus10. I disagree withTodd whenhe infers (1993: 89, 120) from Sositheos’ band in [Dem.] 43.6– 10)thatmultiple claims wereexceptional evenindiadikasiai. Sosithecomplaint ([Dem.] 43.8– os’complaint wasnotthat there were four other claimaints andthat this wasthe source of the complications, butthat these four hadcolluded against him. 20 Dein. frs. XX, XXXIV, XXXVIII, LXXXIV (Conomis), see also Lipsius (1905–15: 266, 464). Dein. fr. LXXXIV (Conomis) maybe the same speech as Lyk. fr. VII (Conomis). Isaios fr. VII (Thalheim) maybe anexample of a diadikasia involving a deme, butthe fragment does not allow anyfirm conclusions onprocedure. Weknowonly that thedispute concerned a piece of land. Thedeme hasbeenconfronted bya single individual, whoseems toexpect a considerable 10). Lys. 17 was delivered in a diadikasia number of speakers on the opposing side (lines 9– (17.1) between an individual andthe entire polis. Note that in Aisch. 3.146 it is envisaged that a hypothetical legal battle for supremacy between the bêma of the Assembly andthe stratêgion might take place in a diadikasia.

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their former guardian nowdead, the father of the four brothers. It is quite clear that theeight suits were brought separately, andeach suit forthe full amount: the speaker claims that the real sumunder dispute wasno less than four talents (8x3000 = 24000 drachmai).21 The speaker’s strategy of presenting theparagraphê as a joint venture entered into bythe four original defendants made Harrison suggest that ‘it seems that thesuit wastaken as a single suit, andthat time wasallotted to thespeakers accordingly’.22 However, 38.2 shows that theparagraphê wasbrought in response to a single dike rather thantoalleight of themsimultaneously. Herethespeaker states that ‘you have heard that the compensation claimed in the dikê is thirty mnai’ (ὃμ ρ ὰ ὲ νγ η κ ό α ᾽ἀ κ τ μ ε, τριά η μ κ ε ῖςἐπ ο ν ὑ τ ῃτίμ α ὶτ ῇδ εἰσ ίκ ν ὶμ α ῖ), andthe wording ἐ ὶ π ‘ ῃalong with the admission that the sum under dispute was 3000 drachmai τ ῇδίκ rather than four talents proves that only one suit was being countered. The᾽timêma of 3000 drachmai mentioned here is important in so far as it determined the risk runby the person whobrought theparagraphê. If unsuccessful, the speaker would forfeit his deposit, the epôbelia, which amounted to a sixth of the sumunder dispute.23 It would, in fact, be anunwise strategy onthe part of the four brothers to bring a joint paragraphê in response to all of the eight dikai, had this indeed been possible. In that case, the deposit they would have to putat stake in a single trial would amount to noless than 4000 drachmai, whereas if they brought a series of separate paragraphai in response to the individual dikai, eachparagraphê would carry a risk of 500 drachmai only. If their first attempt to bar the action proved unsuccessful, the four brothers would still have the option of cutting their losses by withdrawing theremaining paragraphai. Conversely, they mayhave hoped thatone successful paragraphê might induce their opponents to withdraw their seven other dikai. The latter strategy, that of testing each dikê in an individual paragraphê, still calls for a rhetorical representation of the eight suits as interrelated. Here, as was also thecase inother ‘serial trials’, thespeaker might see anadvantage in persuadingthejudges thattheir present verdict would establish aninternal precedent: if one dikê was declared inadmissible, the court should obviously reject also the seven other parallel suits. It is an important component of the speaker’s overall strategy that hesucceeds inconveying theideaof Nausimachos andXenopeithes asoneand the same party. When the speech is considered in the wider context of the eight original dikai, it is clearly in the speaker’s interest to stress that both brothers would 2. The speaker’s calculation of thetotal sumof all thecomplaints contradicts Wolff’s 21 Dem. 38.1– suggestion (1966: 58) that there were only four original actions, each of which were brought jointly byNausimachos andXenopeithes. 22 Harrison (1971: 160n.3). Fora slightly different interpretation, seeWolff (1966: 58) and(1968: 19), whosuggests that while thefourcases mayhave beenkeptseparate ona formal level, they wereprobably pleaded together inonesession, sothattheextant speech wasdelivered onbehalf of all four brothers in their paragraphê. 23 For epôbelia inparagraphai, see Isokr. 18.12, 35, 37. Isokr. 18.12 indicates that the risk was equal for both parties in a paragraphê; butthere is still doubt as to whether the 20% rule applied inall types of private actions in which theepôbelia wasimposed.

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be affected byanadverse vote inthepresent suit, although informal terms only one of them would be directly affected. Thus, Dem. 38 does notprove that twodefendants could be sued in a single private action. Dem. 47 wasdelivered in a dikê pseudomartyriôn, apparently against twopersons, Euergos andMnesiboulos, whohadgiven thesame(allegedly false) testimony in a previous law-suit. Thespeaker refers to hisopponents intheplural throughout

the speech, but it is telling that the only person referred to directly by the pronoun ‘this manhere’ (ο ὑ τ ο σ ί) is Euergos –Mnesiboulos seems to have played only a minor part.24 In 47.76 the speaker states explicitly that he had brought more than onedikêpseudomartyriôn, andthis is a strong indication thatonlyoneperson would be directly affected by an adverse vote in the present action.25 This person was probably Euergos. Ourspeaker mayhave hadthesamereason forrepresenting Euergos and Mnesiboulos as fighting a common cause as the speaker of Dem. 38: both hadtestified tothesamefact, andit would beintheinterest of thespeaker topretend that the conviction of one would necessarily lead to theconviction of theother. Since there were nojoint defendants involved in Dem. 38 and47 there is no compelling reason to assume that several persons could be suedina single dikê. On theother hand, there is plenty of evidence which suggests that normal practice was to sue a group of opponents bybringing separate suits. We know, forexample, that Apollodoros sonof Pasion suedseveral witnesses, whohadall given thesame testimony, ina series of trials (Dem. 45.7). Pittalakos, a public slave, attempted tobring separate dikai against Timarchos andHegesandros (Aisch. 1.62). Demosthenes sued

his three guardians, Aphobos, Demophon, andTherippides, separately.26 In Isaios 13 the speaker relates the failed attempt to overturn anadjudication of an in5.12– heritance to a certain Dikaiogenes: thespeaker’s cousin Menexenos hadstarted proceedings against Dikaiogenes’witnesses whomheattacked onebyonein separate suits. It wasprecisely that which left Dikaiogenes’opponents vulnerable, for after theconviction of thefirst witness, Dikaiogenes allegedly bribed Menexenos todrop

the subsequent dikai pseudomartyriôn. That a speaker involved in such a series of related law-suits refers to theopposing party in the plural, implying that more than oneperson will be affected by an adverse verdict, is notsurprising. Andthefact that some speakers refer consistently to their opponents in the singular lends some credibility to theassumption that the 24

25

Indications that thepresent dikê pseudomartyriôn wasbrought against Euergos only are found ο ο λ υ η ς σ ίβ ν ὶΜ α υκ μ ο ϕ ή γ ό εοὑτ σ ςτ ὶὁἀδελ ο εοϕ in47.34, 53, 58, 60, 63, esp. 53: Εὔερ ὸ ςὁΘ ή ςα ὐ τ ο ῦ . τ ὁκηδεσ σ σ α ο π μ υ ο ιή ν ρ α σ ία υ ν ἐν εχ ὴ τ ν ίω ρ υ τ ρ α μ ο δ ευ ν ψ α ῶ μ ᾽αὐτ ...β ο ν ςτ εν ο ο ὺ υ λ ό ο ςὑ ςτ ὺ π ςἀγῶ

θ α ι. 26 Dem. 27.12. For other serial

32. Aischines᾽ 7; Dem. 41.4, 55.31– dikai, see e.g. Isokr. 18.6– remark (3.173) that Demosthenes hadsquandered his patrimony ina ridiculous wayhasbeen over-interpreted to the effect that Demosthenes abandoned his suits against Demophon and Therippides after having secured theconviction of Aphobos. It is highly unlikely that Aischines would use abandoned private suits as character assassination. While it could be held against a litigant thathehadbetrayed a public prosecution, thecommonplace ofabuse inconnection with private suits wasthat one’s opponent hadpersisted in litigious behaviour visà vis his relatives andhadfailed to reach anout-of-court settlement.

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useof theplural is more thanjust rhetorical convention.27 However, asstated above, nothing canbe concluded withcertainty onthebasis of the plural alone, since witnesses didcount as ‘opponents’ as well. Canit then be inferred that theother person (or persons) held to be implicated would in fact take thefloor before hisowndefence wasdueto be heard? It is quite likely that this would have happened regularly. For inprivate actions in particular, theargument that there would be a kindof internal precedent at work in serial suits maybe more thanjust rhetorical make-believe: it is highly plausible that the verdict in thefirst action would set aninternal precedent, andthat several persons accused on related charges would consider especially the first legal battle as vital for their ownchances of success inthesubsequent suits. InDem.27.12 Demosthenes refers tofuture dikai against hisguardians, Demophon and Therippides, who were allegedly the accomplices of Aphobos presently ontrial. Demosthenes embarks ona narrative inwhich all hisguardians play a part, buthedoes notwantto go into thedetails pertaining to theconduct of Demophon andTherippides since ‘it will suffice to talk about that when I have brought in my ᾽ἐξα κ ο κ α ρ έσ ν ρ τ τα claims against them’(τ ,ὅ ὐ τ ῶ ν τ α α τ ε ν ὶα ῖν ὰ εἰπ ε ιπ ῶ τ ὐ ερ ςγ ϕ ὰ up at ςἀ some μ κ εν ω π , 27.12). This maybe taken to refer to trials coming εν έγ ᾽ point inthefuture (the useof ἄ withtheaorist subjunctive mayindicate that Demoν sthenes hasnoteven summoned themyet), buta passage in hisspeech against Meidias suggests the possibility that the lapse of time between the trials was indeed very short. In 21.78 he relates howMeidias andhis brother tried to frustrate his suits against hisguardians:

as mydikai were about to be brought into court infour orfive days, his [Meidias’] brother andhehimself burst into myhouse andchallenged meto an antidosis of their trierarchy. then,

ἢ π η έμ π ν τ ε ὶτετάρ ν α ὡ π σ ερ μ έρ ἡ ἰς ε ο ιτ ῶ ν λ ελ υ α ν ν ῶ ικ δ σ ν ῶ εἰσ ιέ ιμ ο εμ τ τ ό ιδ ιδ τ ν ό ν τ ε νἀ ία ς η νοἰκ ϕ σ ὴ α νἀδελ ο ή τ ἰςτ δ ςε ὶοὗ α νεἰσεπ η υκ ο τ ὸ τ ςὁτού ρ χ ία ρ α ν . ρ ιη τ This passage maybe interpreted totheeffect that all Demosthenes’dikai epitropês were scheduled to be heard onthesame day.28 Thecourt administration does allow this reconstruction: four private suits could beheard ina single court day, andpresumably there wasnothing toprevent a magistrate fromassigning a number of related suits to the same session allocated to himby the thesmothetai, provided that the disputed amount wasroughly thesame inallcases.29 This might meanthat thesame 27 28 29

Isokr. 18;Dem. 50, 52; andHyp.5 useonly thesingular about thedefendant. MacDowell (1990: 294) offers twoalternative interpretations: thedikai wereheard either onthe same dayoronsuccessive days. 718). After the Several dikai heard on the same day: Ath. Pol. 67.1 with Rhodes (1993: 717– mid-fourth century, the thesmothetai would assign dicastic panels to magistrates by lot (Ath. Pol. 66.1). Presumably, all procedures of the same type scheduled for a particular court day would be heard bythe same panel, presided over by the same (board of) magistrate(s). Dem. 15suggests that magistrates hadsomediscretionary power to assign individual cases to 42.13– particular court days, sometimes within a statutory time limit, although theoverall schedule of

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panel ofjudges would hear all thecases, giving theplaintiff anadvantage over his opponents since hewould have hadplenty of time to elaborate andrepeat his story; and, by the endof the day, thejudges would be very familiar indeed with the details of his version of the case. If a speaker knewthathisaudience ina series ofrelated cases would bemadeup from the same individuals, this would also add more weight to his claim that the verdict would establish a sort of internal precedent. Additionally, a plaintiff who had been successful in the first round of a series of trials might find it a good deal easier to persuade therest of hisopponents to settle thedispute outof court.30 This tactic might also backfire, of course: if theplaintiff lost hisfirst suit, there would be a great risk that hewould also lose therest. To sumup:there is noevidence to support theclaim that several persons could be sued in a single action, either public or private. Given that we have evidence which confirms thatdefendants inpublic actions wereentitled toanindividual hearing, it is permissible to interpret the silence of thesources as anindication that the Athenians adhered to this principle, except in oneextreme situation after Arginousai. As for private actions theevidence is notconclusive, butit must be noted that there is nosource which even suggests, let alone confirms, that a different rule applied in dikai. Ontheother hand, manyspeakers adopted therhetorical strategy of representing several legal actions as interdependent. This conveys the impression that their opponents are actually groups of people rather than single individuals. In private suits this strategy mayin fact reflect Athenian court administration, which allowed forfoursuits tobeheard bythesamepanel ina single court day.Butevenwhere this did not apply, a plaintiff involved in a series of trials related to the same complaint might still find it expedient to stress theimportance of thepresent trial byclaiming that thejudges’verdict would affect the outcome of the rest. It is likely that in such the courts was controlled by the thesmothetai (see Rhodes [1993: 657 and 666]). It may be assumed that the presiding magistrates would apply to the thesmothetai for a slot in the court schedule, oncetheyhadagreed toreceive a case andthecase hadproceeded beyond thestage of arbitration. It is possible thatmagistrates whoreceived a ‘package’of interrelated private cases could apply forall tobeheard onthesameday.This would havebeenthemosteconomical way of administering thecourts, given that there were a limited number of court days available to be distributed among a large number of magistrates, eachboard withresponsibilities ina particular sphere of jurisdiction. Some of the evidence cited by Rhodes (1993: 657) suggests that individual magistrates could request specific dates for thehearings. 30 Last-minute settlements between theopposing parties werepossible indikai, andScafuro (1997: 394) discusses the possibility of ‘arbitration during trial’, i.e. the attested cases in which a 393– compromise between the opposing parties wasagreed even after thejudges hadpassed their first verdict, butbefore they voted onthepenalty orcompensation. Scafuro also discusses serial actions (especially cross-actions) as anintegral part of the manceuvering of Athenian litigants (1997: 40), asdidThür(1971) inhiscase study of thecomplicated actions andcross-actions that had preceded the court hearing in which Isokr. 17 wasdelivered. The strategy of bringing a series of interrelated dikai against several individuals constitutes a clear parallel to thetype of pre-trial behaviour described by Scafuro andThür, except that the strategist, whoopted for a series of trials against different individuals, would have to bankona favourable response of the court to the first legal action in theseries.

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dikai, several persons might address the court in support of the defendant on the grounds that they would be personally affected by the verdict, if only indirectly. What really matters is that legal actions, especially private ones, were regularly presented totheaudience asclashes between several persons, notjust twoprotagonists, andthat Athenian court practice provided opportunity forother persons, directly or indirectly affected bythe charge, to address thecourt in words of their own.

2. Joint prosecution Joint prosecution seems tobeenvisaged inatleast onearea of Athenian legislation: thelawprescribing procedures forhomicide provides thatrelatives, related byblood as well as by marriage, andmembers of the phratry are allowed tojoin in the prosecution of a murderer: (Relatives) asfar as thedegree of cousin’s sonandcousin are to denounce the killer in theAgora. Cousins andcousins’sonsandbrothers-in-law andfathersin-law andphratry members ̣ ̣ ̣ must (may?) share in theprosecution.

̣

[ᾶ ιμ ιἐ έχ νἀ ]γ ρ ρ ᾽ἀ ο ν σ εϕ ιό τ ετ ι κ|τ ̃· ο ]ὲτ ο σ ιο ςκ νδ α ε ὶἀνεϕ ειπ ο ρ έ π ν α ν[τ ̣ [ ι ϕ ὸ ϕ σ σ ς κ ι ο α ὶ ε ἀ ν ε ν ]ἀ ρ ὸ ςκ α ν|δ εν θ ὶπ ]ε ε ὲ[κ ν π α ίδ α α ὶγαμβ ςκ κ ιό δ ν υ σ ̃[ο [ά ]τ [α ]ρ ς .31 ρ ]ςκ|α ὸ ρ ὶϕ

̃

̃ would have toswear theparties’ MacDowell (1963: 99) suggests that suchrelatives oath, which maybetaken to indicate thatthey, too, shared formal responsibility for theprosecution.32 However, thepractices prescribed inlegal actions relating tohomicide cannot beusedtothrow light onprocedural regulations inother areas of Athenianadministration ofjustice. Thedikêphonou differed in mostrespects fromother Athenian law-suits, notleast inregard to thestanding of parties andwitnesses. The oath sworn by the parties differed from that sworn in ordinary dikai andgraphai, witnesses were required to swear aswell, andthedikê itself wasananomaly, since, for obvious reasons, it could notbe brought by the victim personally. It would therefore be very dangerous indeed to draw anyconclusions regarding ordinary courtpractice on the basis of the dikê phonou. a. Private

actions

Let usfirst consider ordinary dikai. InIsokr. 20.2, thespeaker claims that Secondly, as regards other complaints, theperpetrator is liable to legal action only bythe victim himself, butasfar as hybris is concerned, since it is regarded as a matter of common concern, it is possible for whoever of the citizens who wishes to initiate a graphê with the thesmothetai andappear inyour court. 23 as restored from [Dem.] 43.57. 31 IG I3 104.20– 32 Ant.5.12. Thespeaker claims that if theaction hadbeena dikêphonou, hisopponent (whowas acting as a synêgoros in the present apagôgê) would have had to swear the diômosia (pace Gagarin 1997: 183).

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ὲνἄλ νμ ῶ λ ατ ά ω νἐγκλημ ειτ τ ῷ ἔπ ω π να ῷ α τ θ ὐ τ ό ν τ ιμ ό ν ο νὁδρά σ ό α ςὑπ δ ικ ό ςἐστινπ ρ ρ εω ῆ ὶδ ὲτ ε ςὕβ ,ὡ ς ςκοιν μ ο ῦτ ρά γ ο α ῦπ τ ο ςὄντο ς , ἔξεσ ῷ τ ιτ β ο υ λ ῳ μ ο έν ῶ νπ ο λ ιτ ῶ ρ νγ ῳ α ρ π μ ψ α έν ὸ ςτ ο ὺ ςθ εσ μ ο θ έτ α ςεἰσ ελ θ εῖνε ἰς ·τ ᾶ μ ς. ὑ

This passage suggests that in ordinary private actions only the victim personally could enter his name on a writ and have the case brought into court.33 But it is possible to envisage situations where twopersons ormore could equally be regarded as victims, for it did happen that several individuals entered into joint private transactions, at least on anad hoc basis. It must be asked if all of them could join forces andbring a private action together, if things went wrong. IG II2 1258 provides the strongest indication that a group of people, whoall defined themselves collectively asvictims of aninjustice, would still havetorely on one individual whowould have to enter his name onthe summons that formed the basis of the dikê. In the wake of a legal dispute which the Eikadeis have defended unsuccessfully, Polyxenos sonof Diodoros has taken it upon himself to challenge by episkêpsis the testimony given by the opponents’ witnesses ‘to the detriment of the association of the Eikadeis’(ἐ β λ ε ά π ὶβ ιτ ο ῦκοιν ο ῦτ ο ῦΕἰκα δ έ ω ν[lines 10– 11]). Polyxenos is awarded a golden crown for his trouble (lines 17– 21), and in the 15) that theEikadeis shall choose three of their same decree it is decided (lines 12– γ ω ν υ ν α members tofight together with(σ ιο ῦ ν τ α ι) Polyxenos incourt, ‘sothatthose whohave given false testimony will be punished’ (ὅ π ω η νδιδῶ ςἂ νδίκ σ ινο ὰ ἱτ ρ ο ῦ ν ρ τ υ τ μ ες).34 It is clear from this decree that the Eikadeis regarded the α ῆ ευ δ ψ pending dikai pseudomartyriôn as a common concern, andwe must assume that Polyxenos’three supporters would contribute to making thevoice of theassociation heard. The association clearly relied onanindividual member to initiate the legal proceedings; yet it is highly likely that the case as argued in court by Polyxenos and hissupporters would be represented asthecase of theassociation collectively. Dem. 34 is a case where at least twospeakers defined themselves as injured parties, andthey present their case as ajoint venture in the speech. But, as pointed 44 that the first out in Chapter 2: 1, it maybe inferred from 34.12–16 and34.43–

33 This is theonly passage in theOrators to state directly that ordinary dikai could be brought by the injured party only. The passage forms part of a general attempt to stress theseriousness of thespeaker’s case against thedefendant Lochites. Thespeaker hasbrought a private action for violence; buthe argues that this particular type of offence is perceived by thepolis as a crime affecting thecommunity asa whole. According tothespeaker, a number of measures have been taken in order to encourage thecitizens to bring such cases before the court: there is no court deposit (parakatabolê) to bepaid insuch actions, andtheexistence of a graphê hybreôs makes it possible for volunteers to intervene onbehalf of thevictim. The speaker claims that acts of hybris are unique in the sense that they alone can be brought to court by means of a public as 27, well as a private procedure. That this is a rhetorical exaggeration is clear from Dem. 22.26– which suggest that there wasa perceived procedural overlap also in theareas of theft andasebeia. I shall return to this problem inChapter 5: 3. 34 It is doubtful if IG II2 1197 should be interpreted as a parallel instance on deme level. The , but it is τ α η χ ά ὶΛ ερ ο ῖςπ ιςτ ο ίκ δ ν υ ο ῖςσ decree refers to honours bestowed by the deme on τ most likely that these might bethesyndikoi whowere appointed to assist thedemarch, presumably on a regular basis (Whitehead 1986: 129).

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speaker, Chrysippos, had taken on legal responsibility for the original dikê which has been countered by Phormion in the present paragraphê. Pace Harrison (1971: 160 with n. 3), theconsiderable rhetorical involvement onthe part of Chrysippos’ associate does notindicate that more than oneperson could assume legal responsibility for a dikê. In Dem. 56.1, the speaker, Dareios,35 introduces himself as a lending partner (κ ο ιν ω ν ό ιτ ςεἰμ ο ῦ δ ν μ α είσ α τ ο ). It appears from56.6 that Pamphilos was ςτούτο υ registered in theborrowing contract as thelender, andthat Dareios hadcontributed to the loan, but without having had his name written into the contract. When the speaker describes howtherelationship between lenders andborrowers turned sour, he mentions repeatedly the possibility of legal action initiated by himself andhis 16, 18), andtheplural ‘wearebringing theaction’(δ partner Pamphilos (56.12– ικ α ) is used in 56.37 (see also 56.44–47). In 56.4 Dareios seems to suggest that α εθ μ ό ζ both he and Pamphilos are facing the risk of epôbelia in the present suit, andhe contemplates the possibility of imprisonment forbothof them. As noted in Chapter 2: 1 it hasbeen suggested that Dem. 56 wasin fact a synêgoria delivered by Dareios on behalf of Pamphilos, whowas the main party to the action. The text does not allow anydefinitive conclusions in regard to the formal legal position of Dareios; but what is clear is that the speaker attempts to present the case asa confrontation between Dionysodoros anda ‘duo’consisting of himself and Pamphilos. Andit wasthe rhetorical representation of the parties, rather than the formal text on the writ, to which the judges were likely to respond when they cast their votes at the end of the hearing. The plaintiff who is most consistent in conveying an impression that he is part of a larger team is undoubtedly thespeaker of Isaios 5. Throughout the speech the first person plural is used about the plaintiffs, and, as noted in Chapter 2: 1, the reference to the antômosia in5.2 maybe taken to indicate that several individuals hadsworn theparties’oath(ἀ μ ). Onlytwopassages inthespeech give a εν μ ό ν σ α τ ω 33 the speaker hint that the speaker wasperhaps the legal protagonist after all. In 5.32– refers to anarbitration which wassetupprior tothepresent action asa last attempt to reach an out-of-court settlement. Here the speaker lets on that he hadplayed a mainpart insetting uptheprocedure, andthathehadchosen twoof thefourarbitra). In5.38 there is another possible indication η ν μ tors (ο ἱμ α ὲ λ ν ό δ ύ ρ ο ὐβ οο γ ὼ π ὓ ςἐ that ourspeaker carried responsibility onhisown, andthat hehadhadto goit alone, at least up to a point.36 The formal distribution of legal responsibility between the speaker andhis relatives, whoare represented as equally involved in the case against the defendant Leochares, is thusunclear. However, just asintheother twodikai discussed above, thejudges listening andresponding to therhetorical presentation of the case must 35 hyp. Dem. 56, 1. 24 the speaker refers to a previous suit over a bath36 ε ἰἐμ ὲἐξηπ α η σ ν τ α... In 5.22– ά ν ἕν ὄ ε τ house which hehadlost to Mikion. Although hepresents it as a joint venture, it appears from ρ ο υ ή κτ ο ῦκλ ιἐ ω ςτ χὅπ ὐ ιο λ ςο ν μ ὁἄθ ὲ ὼ γ α ὶἐ 5.24 that the speaker hadbeenresponsible: κ μ ο έν ςὑ ὸτ π ῦΔ ο ρ ισ α ιο ικ ινὑβ ε ῄ ᾶ ν π ςἀ μ α τ ϕ η ὼ λ ςτετταράκον εκ ω λ εἰλ π ο α σ ο ρ λ π λ ὰ ,ἀ ώ ς γ έν ο υ ς .

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have perceived thelegal contest asa battle between thespeaker andhisrelatives on the one side and, on the other, Leochares andDikaiogenes, the person for whom Leochares hadacted assurety. It appears fromIsaios 5.5 thatDikaiogenes is expect-

ed to speak in support of Leochares,

which will have contributed further to that impression. Theevidence examined here doesnotallow ustodismiss definitively thepossibility that a single dikê could be initiated formally by several individuals who all defined themselves asvictims, orthepossibility that anassociation could beentered collectively (e.g. as ‘the Eikadeis’or ‘the Halimousioi’) as plaintiff on the writ (egklêma) that would form the basis of a dikê in the fourth century. It may be taken as significant that we do not know a single instance where this did unquestionably occur; ontheother hand, theevidence forthedifferent types ofdikê is toolimited to allow anargument from silence to carry much weight. For those whotake a particular interest inthelegal standing of Athenian associations orbusiness-related partnerships this is a very important piece missing fromourjigsaw puzzle. Muchwork (some of it inprogress) still remains tobedone inthis area, andweareevenallowed to hope that newepigraphical evidence, notleast inthe formofjudicial defixiones, mayhelpto throw more light ontheissue. Forthetime being it seems preferable to leave thequestion open. However, evenif it is assumed thatformal responsibility forinitiating a dikê did necessarily rest with a single individual, andthat it would be impossible for two or more persons toenter their names ontheegklêma, thepractice of allowing multiple pleaders inprivate actions still hasimportant consequences forourreconstruction of the working of the Athenian courts. What can be inferred from the surviving speeches is thatgroups of people (relatives aswell asbusiness partners) could present their case in court as a common cause, the outcome of which would affect all of them equally. Even in those cases where weknow for certain that only one individual had assumed formal responsibility fora dikê in which several other people hada direct interest, itwaspossible fortheother people involved tohavetheir sayincourt andto contribute to ensuring thesuccess of a legal action that wasa genuine joint venture ineverything butname. Thelegal system clearly wasflexible enough toaccommodate disputes between groups of people ona rhetorical as well asa practical level. It waspossible formultiple pleaders topresent a legal case asthecase of a group, and thejudges, whowould havebased their verdict first andforemost ontheoral presentation of theparties in court, would presumably have responded accordingly. Moreover, that theoption of multiple pleading wasavailable inprivate actions also hasimportant implications whenitcomes tothequestion of theordinary Athenian’s real access to the courts. Some private actions carried theconsiderable risk of epôbelia, a sixth of the sum under dispute, which would be forfeited by the losing party. Other types of action required the parties to pay a deposit in the form of parakatabolê, which may have amounted to 10 % of the amount claimed.37 Al183) It is unclear whether the epôbelia was 37 For the parakatabolê, see Harrison (1971: 179– payable only inthose cases where oneof theparties obtained less thana fifth of thevotes, andit 118) is possible thatdifferent rules applied indifferent types of action. See Hansen (1982: 115– for a discussion of theevidence forepôbelia andreferences to the previous debate.

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though the epôbelia seems to have been payable to theopponent rather than to the treasury, a defaulting litigant appears to have incurred atimia (and in some cases even imprisonment) as a debtor, until thedebt hadbeen paid(Hansen [1982]). The existence of such a risk, along with the assumption that the rhetorical burden involved would have been too heavy for the average Athenian to carry, invites thea priori argument that a large section of the Athenian population might have been deterred fromentering into this type of high-risk private litigation.38 Even ontheassumption that formal responsibility fora private action, andwith that the epôbelia or other deposits, invariably hadto be taken by a single individual, thefact that such a person didnothave to carry theentire pleading onhisown, but could rely on rhetorical backing from his partners in the case, must still have lowered the threshold of deterrence considerably. It is also entirely conceivable that a group of people whoall hada stake in the same dikê could make their ownarrangements for protecting the person whowaswilling to assume the formal (and financial) risk on their behalf, for example by setting upan eranos fund.39 Their willingness to incur part of the financial risk may, in turn, have increased because they would nothave to stake their money onthe rhetorical capacities of a single individual. Theycould retain joint control overtheproceedings, right uptothepoint where thejudges would cast their final vote. Thus thea priori argument that this type of private litigation wasdefacto thepreserve of thewell-heeled Athenian élite loses at least some of its force. Joint litigation inprivate actions maythus have been a significant factor which would have facilitated the ordinary Athenian’s access to thecourts. Andtheexistence of this practice mayhave evenmore fundamental implications whenit comes to public actions, which, according to the current view, were analmost exclusive preserve of theAthenian élite because of thehighrisks connected with active participation. It is tothis area of Athenian litigation thatwemustnowturnourattention.

b. Public actions When it comes to public actions heard by the dikastêria most modern scholars habitually think of ho boulomenos in the singular, of one individual whois ultimately andsolely responsible for a given public action, andmuchrecent research (includ38 39

Harrison noted (1971: 184) that the epôbelia, if imposed on whichever party lost, would have raised thestakes andfavoured therich against thepoor litigant. For eranos contributions in general, see Millett (1991). That groups of people might contribute jointly tobail outtheindividual whotook onthe financial risk connected witha legal action has been suggested by Christ (1998: 118). Unfortunately the passages cited as evidence for this practice donotprove thepoint. Lys. 8.18 relates to synêgoroi andwitnesses which thespeaker , τό μ α μ τ α ι επ ο γ οθ έσ ρ ᾶ ιπ ο ᾖ τ ίμ ν α ρ , ὅτ γ ά ν ο ό τ ερ hadexpected hisassociation to provide (π ν τ α ο ὸ ν λ έγ ῦτ ο ρἐμ π ὲ ὑ ιν ε έγ ῦλ τ ο ν ὲ ὶμ τ ν ἀ ν ῦ τ α α ν ὶν ;κ ή ο σ ς ρ τυ ρ τ ν ῦ α α ο κ α ο ὺ ὶτ ςμ ν ἐρ τ ὸ θ εκω λ σ ύ ιν...). Dem.25.58 mostlikely refers toAristogeiton’s betrayal ofpersons who ε π ειρᾶ ) or who, ῷ ναὐ τ ρ ία η τ νσω τ ω νε ὴ ν ἰςτ ό ερ νϕ ν ο νἔρα ντ ὸ ῶ would contribute to his defence (τ like Zobia themetic-woman, hadassisted himfinancially whenhehadtoflee Athens inorder to evade the law. That eranos contributions would be onewayof sharing thefinancial risks connected with a dikê remains a conjecture, butit is a very plausible one.

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ing myown) on the Athenian administration of justice is based on that assumpThe formula used most often in laws anddecrees does refer to ho boulomenos, ‘anyone whowishes’, in thesingular,41 butthe useof the singular does not necessarily mean that one volunteer constituted anupper limit. In some instances that does indeed seemtohave beenthecase, butthere areother instances where the volunteer formula seems to invite participation or contribution literally from any one whowants, andwhere participation byonecitizen does notseem to have precluded participation by other volunteers.42 Volunteering inalmost anyarea of Athenian political life wasconnected with a risk fortheperson whochose tocarry outa task onbehalf of thecommunity. Asfar as public legal actions were concerned, theAthenians attempted to strike a delicate balance between thedesire to encourage citizens to bring criminal behaviour to the attention of thecourts andtheneedto deter them fromusing thesystem to further endsthatwereperceived asillegitimate. Acitizen might gainlegitimately invarious ways from his decision to prosecute: a successful public action might improve his political standing, give himthesatisfaction ofavenging himself ona personal enemy, andin a few types of action the prosecutor wasentitled to an award in cash. The possible rewards were balanced by an element of risk imposed on the person who brought theaction. A person whoentered hisnameona writ inmosttypes of public action made himself juridically responsible for the subsequent proceedings. If he dropped thesuit, orif hebrought thecase tocourt butfailed togaina fifth part of the votes, heincurred a fine of a thousand drachmai andpartial atimia.43 Theexistence of this statutory risk is oneof themost important arguments in favour of regarding the Athenian courts as a politico-legal space in which active participation remained a defacto privilege of thewealthy, while theaverage Athenianwould normally have restricted hisparticipation inthelegal process to the more passive andentirely risk-free rôle as a spectator, listener and voter.44 Secondly, the burden connected with preparing andpleading as a volunteer public prosecutor is normally regarded as so heavy that it could have beencarried only byexpensivelyeducated Athenians whoalso hadthe financial means to devote their lives entirely tion.40

240), Os267), MacDowell (1978: 235– 40 e.g. Hansen (1975: 31), (1981) and(1991: 180, 266– 78 andpassim), Rubinstein (1998). 163), Cohen (1995a: 74– borne (1985), Todd (1993: 160– ν ῶ 41 The plural of the rel. pron. ο ) is to be read with theantecedent, thepart. gen. τ ἷς(ἔ ιν τ ξ εσ 919, thejoke is clearly based onthe useof the singuη ν Ἀ θ α ίω ν . In Aristophanes’ Wealth 917– lar in laws anddecrees: when asked by the sykophant whowill prosecute criminals, thejust ᾽ ᾽ἐγ ώ .Ὥ τ σ ό ῖν ε ν ἐκ ςεἰμ ῦ ο μ citizen replies ὁ υ λ εν β ο ο ό , towhich thesykophant responds οὐκ ς , cf. Karion’s remark in929. μ α κ α τ ε γ ιτ ᾽ἥ ῆ ρ ά ε ἰςἔμ ό λ εω ςπ π ὰ ςτ 25, And. 1.84, Dem. 24.25. 23, 244.40–41, 337.19– 42 e.g. IG I3 102.46–47, II2 204.16– 43 For the types of public prosecution which carried the risk of partial atimia, see Hansen (1975: 29).Theobjections of previous scholars totheexistence of partial atimia (e.g. Kahrstedt [1934: 30, 52– 176]) have beenrefuted at length by Hansen (1973: 26– 109] andHarrison [1971: 175– 65). There is anon-going dispute overtheprecise extent 91), see also Hansen (1976: 63– 63, 85– of thepartial atimia incurred byprosecutors (e.g. E.M. Harris [1989: 133n.40] and[1992: 79– 328]). 80], MacDowell [1990: 327– 44 Fora recent restatement of this view, which is widespread particularly among British andAmer36). ican scholars, see Christ (1998: 32–

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to pursuits inthepolitico-legal sphere. If anordinary Athenian might find it dauntingenough toplead ina private action that would have lasted at most fora couple of

hours from beginning to end, he would most likely have found it absolutely terrifyingto face theprospect of carrying outthepreliminaries of a public action and, not least, of having to address the court for a third of a court day–that is, if he hadto carry outthese tasks onhis own. It hasalready beenestablished thata litigant would notnecessarily havetoplead on his own in a private action. Likewise, the survey presented in Chapter 2: 1– 2 shows that a volunteer prosecutor would not have to rely exclusively on his own rhetorical skills andpersonal practical experience inthesphere of politics. Just as it has been argued in the preceding section that the practice of legal collaboration would havereduced theburden of litigants inprivate actions andlowered thethreshold of deterrence considerably, so the option of team-based public litigation may force modern historians to reconsider the postulated gapbetween ‘mass’and élite’ when it comes to active political participation, especially in the Athenian court‘

rooms. I shall return to that question in Chapter 5, but before this discussion can be resumed, two fundamental questions have to be addressed in the current section. The first is whether a supporting prosecutor in a public action would be forced to assume thesame statutory risk asthemainprosecutor. If theanswer is intheaffirmative, the argument that only the wealthiest Athenian citizens would have the financial means to face therisk connected with public litigation will retain its validity. If the answer is negative, this will mean that risk-free participation in public actions waspossible, andthatwill havea significant effect onthecurrent reconstructions of the social stratification of Athenian litigation. That will lead to a further question, namely whether it waspossible forseveral prosecutors toshare theprosecutor’s risk between them, if andwhen they found that this was strategically called for. There is reason to believe that it wasthe actual writ (graphê) which made a prosecutor juridically responsible for the action,45 and likewise that the rewards paid outin some types of public action were paid to theperson whoassumed legal responsibility for initiating the case.46 What has to be decided is whether all participating prosecutors could or even hadto enter their names on the document and share the risk (or reward) among themselves. As noted in the introduction to this chapter, Lipsius asserted (1905–15: 9–10) that all katêgoroi whochose to participate as speakers in a public action would be personally liable. In support of his claim Lipsius referred to Euktemon’s andDiodoros’twojoint ventures (Dem. 22 and24); butthese twocases donotin fact prove that both main and supporting katêgoroi hadto assume the prosecutor’s risk. In Dem. 24.3, Diodoros reminds thejudges that for their sake he is facing the risk of ρ ά ψ α 3 (γ ); ς ρ ); 22.2– μ α εν ο ψ ά ς ), 222 (ὁγ ν κ ω 45 And. 1.33 (ὁἐν δ είξ ); Dem. 18.103 (ὁδιώ α ς ρ ά ). In [Dem.] ψ ο ν τ α γ ς ο μ ῦἀ π ο εν ρ ο ); Hyp. 3.34 (τ α ψ ά ς ρ μ α εν ); Aisch. 2.14 (ὁγ ψ ο ά [57].8 (γ ς ) was ρ ειν έχ μ α α π ο ν ο ὔ 2 it is stated explicitly that theone whoputhis name forward (τ 53.1– held personally responsible. See also Dem. 21.47. ῷ ἀ ρ π γ ά ο ψ ι), [Dem.] 58.13 andIGII243.45, ν τ α 46 [Dem.] 59.16, 52(τ ), [Dem.] 53.2 (τ ο ῦ ἑλ τ ο ό ν ς ή ν α ϕ ν ῷ ῷ τ ἐπ ι), [Dem.] 43.71 (τ ἰδιώ εξ ῃτ ῷ τ ι). ν τ ιό 9] (τ 412.[7–

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being fined a thousand drachmai.47 Thepassage shows that Diodoros’namewason the writ, and that he had assumed full legal responsibility for the action. Dem. 24, however, is usually regarded as the main speech against Timokrates. There is no information in this speech on the legal responsibility assumed by Euktemon, who delivered a supplementary speech in support of theprosecution. Onthe other hand, Lipsius’claim cannot be dismissed without further discussion. Hisidea of shared risk andresponsibility is notas wildas it might first appear. We know that risk-sharing andjoint responsibility were standard practice in those areas for which magistrates were made responsible for implementing decisions and regulations. In a number of laws anddecrees in which boards of magistrates are given responsibility foracting, non-compliance onthepart of theboard is penalized byseparate fines imposed equally onall individual members.48 Lipsius’reconstructionmaybebacked bya further argument fromanalogy, if weturntoanother areaof Athenian political life, namely theAssembly. Here, too, all individuals whocontributed formally to a decision-making process were personally responsible for their contribution. In thecontext of the Assembly, several boulomenoi could contribute to thetext of a single decision byproposing riders, supplementary orcorrective. Oneexample of a decision to which more than one individual had made a contribution is IG II2 212 = Tod 167, in which honours were bestowed onthethree sons of Leukon, the late ruler of theBosporan realm. Themainbodyof thedecree wasproposed bythe notorious Androtion, whose motion wasconcerned withonly twoof Leukon’s sons, Spartokos andPairisades. Hisproposal wassupplemented witha short rider byPolyeuktos, son of Timokrates, whoproposed that Leukon’s third son, Apollonios, be crowned along with his brothers.49 The heading of the decree, which mentions all three sons, shows that the decree with its rider wasperceived andpublished as a single public enactment. This interpretation is further supported by the relief decoration onthestele depicting Spartokos andPairisades seated ona throne withApollonios standing next tothem. Therelief thusrepresents thecontents of thedecision in its entirety, including the rider. In that respect, at least, it is fair to say that the concept of multi-authored motions, forwhich several individuals hadtaken responsibility, was not unknown to the Athenians. A parallel, albeit of a different kind, is 285 to a single decision to which twoindividuals the reference inIG II2 1623.276– hadcontributed asproposers:

ο ς . ν ὁκίνδυν μ ῶ ρὑ ία ιςὑ ιλ ὲ 47 ἐμ ν χ ᾽ἐ π ο ὶδ 28; 1629.239– 52; 244.27– 39; 71.29– 31; IG II2 222.48– 37; 55.6–10; 61.36– 48 e.g. IG I3 34.36– 547) lists a number of fifth-century 393; SEG 17.21.12–14. Piérart (1971: 543– 242; 1631.385– epigraphical texts (some very heavily restored) stipulating such fines imposed across boards of magistrates. It is perhaps suggestive thata thousand drachmai seems to be a standard rate (texts X, XI, XIII [line 31], XV, XVI), although higher fines of tenthousand drachmai arealso attested inhismaterial. Inthefourth-century texts thefines vary considerably. 49 The identities of thetwoproposers involved inthis decree strongly suggest that they mayhave collaborated onthemotion initsentirety. Timokrates, thefather of Polyeuktos, is identical with theTimokrates attacked in Dem. 24, whois represented as Androtion’s minion throughout that speech.

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These fast-sailing triremes sailed out with thegeneral Diotimos in the archonship of Euainetos toprovide protection against pirates, according to thedecree of theAssembly that Lykourgos Bouta(des) andAristonikos Maratho(nios) proposed.

ρ ε ιςα ρ ιή ἵδ τ εἐξέπ γ λ ο|Δ μ τ ε ὰ τη σ |ε τρα υ ν σ α ὴ ντ υ λ α κ ῶ ν|ϕ ν ὴ ὶτ υἐπ ο ίμ τ ιο ϕ ισ μ α μ ο υ ὃ ή εἶπ |δή λ εισ|τ ε ν Λ ὰ τ ψ κ α υ ν κ|ο ῶ γ ο ρ ςΒ ο ῦ υ τ ά :κ α ὶἈ ν ικ ο ό τ ισ ς |ρ ρ θ ώ α Μ α τ α υ ν υ ο χ ῦ σ ιἐπ α ὶ|Εὐα |τα ιν έτ ο υἄρχοντ ο . ς

̃

Although εἶπ εν is in the singular, there can be little doubt that, grammatically, Arisεἶπ tonikos belongs totherelative clause (ὃ εν ...) rather thanthemainclause.50 The previous according tothedecree of theAssembly’(κ ϕ ισ μ μ ή α ή ο α υ ) suggests δ τ ὰ ψ ‘ is to a single decision bytheAssembly to which twopersons had that thereference contributed. The most likely interpretation appears to be that Lykourgos has proposed themainbodyof thedecree, while Aristonikos mayhaveproposed additional measures or an amendment. Alternatively, the proposal in its entirety mayhave been made jointly by Lykourgos andAristonikos.51 Theindividual responsible fora supplementary orcorrective proposal would be named in therider formula, even inthose cases where hewasin fact identical with theperson whohadbeen responsible forthemainbody of thedecree. Thepractice of routinely recording the identity of theperson whohadproposed a rider strongly suggests that the Athenians wanted to leave open the possibility of calling that personto account for his words ina graphê paranomôn at a later date.52 instance of theuseof theverb inthesingular ina decree proposed bymore than ε ). ξ ε onenamed individual, see ISE 40 (Argos, ca. 300, twoproposers, verb: ἔλ 51 While decrees with riders are well attested in Athens, this is the only example of a possible Athenian decision with twojoint individual proposers that I have been able to find. However, decrees with several named individuals as genuinely joint proposers are known from outside 497] for a discussion). Decrees proposed by boards of Athens (see e.g. Rhodes [1997: 491– officials areknown frombothAthens andother Greek cities. InAthens, atleast, themagistrates musthave been individually andseverally responsible fortheir collective motion, just as they were individually responsible fortheir actions asa board inother contexts (for suchproposals, 268]). I amvery grateful to P. J. Rhodes usually referred to as gnômai, see Rhodes [1972: 267– forall hishelp andforourmanydiscussions of this complicated issue. It hasbeensuggested to methatAth.Pol. 35.2, referring tothe‘lawsof Ephialtes andArchestratos concerning theAreiopagites’, mayprovide another instance ofjoint legislation. Butsince thetextrefers tolawsinthe plural, andsince weknow that several people were involved in the attacks onthe Areiopagos 4), it is far more likely that weare dealing with several different pieces of (Ath. Pol. 25.3– legislation proposed byseveral individuals. Forthelackof information onArchestratos, seee.g.

50 Fora parallel

Rhodes (1993: 440).

52 An example of a rider containing a potentially very controversial measure is found in IG II2 36.Themainpart ofthedecree, proposed byKephisodotos, isconcerned withtheAthen141.29– ianrelationship with Straton, king of Sidon. Kephisodotos’ additional proposal grants exemption frommetic-tax, choregic liturgies andeisphora toanySidonians whose permanent place of residence is Sidon, whenever they are in Athens for trading purposes. It should also be noted that even such riders as mayappear rather trivial inregard to their substance could expose the proposers to a considerable risk of legal action, as forexample thesupplementary proposal by 34), in which Autolykos suggests that a number Autolykos to Diophantos’decree (IG II2107.30– of named members of anAthenian embassy toLesbos becommended andinvited todine inthe Prytaneion. That such honorific proposals could turn out to be dangerous for the proposer is

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We mayhave no cast-iron examples of graphê paranomôn being employed against a decree which demonstrably contained clauses proposed by several individuals; but in Hansen’s collection of thirty-nine attested graphai paranomôn, at least onecase seems to have beenbrought against a decree with a rider moved bya person other thantheonewhohadbeenresponsible forthemainbodyof thedecree (Hansen [1974: 36] cat. no. 26). According to Hansen’s reconstruction the individualcontributors tothedecree were attacked inseparate actions. Cat. no.23 provides another possible example of an attack on a rider.53 For a further twelve graphai paranomôn in Hansen’s catalogue weknow little or nothing about themotions that hadgiven rise to the actions, andit is impossible to tell whether they hadtaken the form of riders or maindecrees.54 Onthe basis of Hansen’s cat. no. 26 it maybe concluded tentatively that, if a multi-authored decree was attacked, the individuals responsible for each part of the decision would have to be attacked severally. It can also reasonably be supposed that, if the proposer of a rider wasbrought to trial in a graphê paranomôn, the writ onwhich thegraphê paranomôn wasformally based would contain only thetext of therider itself along withthetextofthelaworlawswhich therider allegedly contravened.55 Even so, it seems utterly inconceivable that theprosecutors would refrain from commenting on the wider context of the rider (i.e. the main body of the decree), once such a case wasgiven a hearing before thecourt. In some ways theposition andrôle of a supporting prosecutor ina public action wassimilar tothatof acitizen whoproposed a rider. Aswillbedemonstrated further inChapter 4: 2, suchprosecutors often defined their contribution asa supplement to thecase madebythemainspeaker (some evensuggest thattheir contribution is also corrective, as in Dem. 25.1). Some katêgoroi actually signposted their supplementary contribution with a formula that bears a certain resemblance to the rider formula attested in Athenian decrees, asinLys. 14.3, theopening of a supplementary prosecution speech: In regard to everything else, Archestratides has delivered a satisfactory prosecution. For hehasbothgiven anexposition of thelaws andprovided witnesses clear from the cases brought against Ktesiphon (Aisch. 3 andDem. 18), Androtion (Dem. 22) andPhilippides (Hyp. 4). 53 Cat. no.23 is theaction thatTheokrines brought against thefather of thespeaker whodelivered [Dem.] 58. Thespeaker’s father hadclearly beenresponsible fora clause inanhonorary decree which provided that sitêsis should be granted to Charidemos, the natural sonof Ischomachos μ μ ρ έν α γ ο ([Dem.] 58.30– εγ νἦ α μ ν ,ἐ ϕ ισ νᾧ 31). The phrase in [58].30 ... π ν ὴ τ ή ερ ὶο ὸψ ὗτ ῷ Ἰσ ῳ τ χ μ ο ά χ ο υsuggests the reconstruction that the μ ή ιδ ρ η ρ ρΧα σ ινἔγ α ὴ ψ ε νὁπ ίτ σ α τ speaker’s father mayhave beenresponsible forthis clause only. 54 Hansen (1974) cat. nos. 2, 6, 10, 15, 16, 19, 20, 33, 34, 37. A further twocases, cat. nos. 21 and 22, provide a possible example of attacks ona decree with riders. These aretwoclearly related graphai paranomôn which Theokrines brought against Thoukydides and Demosthenes concerning their proposals ontheAinians. Thespeaker of [Dem.] 58 changes between thesingular ϕ ισ μ ά τ η ν in ω ῶ ν ψ 38), buttheplural τ andtheplural inhisaccount of theactions ([Dem.] 58.36– [58].37 suggests that wearedealing withtwoseparate decrees. 55 For the drafting of writs submitted by prosecutors in graphai paranomôn, see Aisch. 3.200. Dem. 18.111, and Dem. 23.215.

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in support of all hispoints. However, I shall instruct you,point bypoint, on the issues which he omitted.

ν ὲ ο ὖ ντ ρ χ ὶμ ῶ νἄλ ρ η π εσ λ α ερ ω νἈ σ τ η ρ τ γ ίδ α ό ε·κ η ςἱκα ν ῶ ὶγ ςκα ρτ τ ὰ ο ὺ ς ρ α ρ τ υ ςπ ·ὅ υ μ ο ςἐπ ρ ά ά ν έσ έδ τ ν ό ειξ χ ω νπ σ α α ε ὶμ τ α εκ ο ᾽οὗ δ τ ο ςπ ρ α α λ έ᾽ἕκα μ ᾶ θ σ τ ν γ α ο κ ὼ ςδιδά ὑ ,ἐ ν λ ο ιπ ε ξ ω . Theopening ofLys. 14hasseveral parallels inother supporting prosecution speeches (see e.g. Carey 1989: 151), andthe topos will be discussed further in Chapter 4: 2. Inthepresent context it mayserve as a reminder that there were important parallels between proceedings in the Assembly andin thecourts, andthat at least some coprosecutors signpost their personal contribution in much the same wayas supplementary or corrective additions to decrees are signposted in the inscriptions in epigraphic ‘shorthand’. It cannot be ruled outthat there were further parallels, andthat several prosecutors acting together in the same public action mayactually all have been personally andseverally responsible for their contributions to thecase. In the context of the courts this would mean that all whohadentered their names on the graphê would suffer thepenalties if theypulled outof theaction before it washeard, or if theprosecution teamas a whole failed to garner therequired number of votes. Likewise, in such cases ascarried a reward payable to the successful prosecutor, it would follow from Lipsius’suggestion that all the persons whohadcontributed to theprosecution would have beenentitled to a share of it. Admittedly, in the surviving regulations pertaining to the prosecutor’s reward incertain types of public action, theinitiator of suchanaction is always referred to in the singular. The phrasing of the law in [Dem.] 59.16 suggests that the person whohadentered his name onthe writ in a graphê xenias would have a claim ona third of the confiscated property. The same principle applied in apographê ([Dem.] ρ ῷ γ ἀ π ά ο ψ 53.2: τ α ν τ ι), andpresumably inphaseis ([Dem.] 58.13 andIGII243.45). [Dem.] 43.71 indicates thata successful prosecutor ina public action concerning the unlawful removal of olive trees is rewarded with 100 drachmai for each tree. But again, theuseofthesingular doesnotrule outthatseveral citizens might join insuch actions asprosecutors andshare thereward. An argument from analogy points to the conclusion that it would be possible to share rewards paid by the polis to individuals who assisted in bringing about or contributing totheprosecution inmatters where theinterest of thecommunity were perceived to be at stake. In And. 1.27– 28 Andokides refers to the prize to be conferred onthose whoprovided information56 on the profanation of the mysteries in 415. A host of people laid claim to thereward, andhaving heard theclaimants in a diadikasia thecourt decided toaward a thousand drachmai toTeukros andtenthou) the π έρ sand to Andromachos, after Androkles hadasserted a claim on behalf of (ὑ boulê (1.27). MacDowell (1962: 82) inferred from this passage that the 10000 drachmaiwould be shared equally between the500 bouleutai, andthis is indeed themost plausible interpretation of thetext as it stands.57

56

57

613) of a significant terminological overlap between the Ziebarth’s demonstration (1897: 610– η ν ύ σ α μ ςandother terms referring toinitiators of legal proceedings is still valid in designation ὁ connection with a discussion of rewards of this kind. 20 drachmai mayseema pittance whencompared toTeukros’reward; yetthemoney received

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Thus, there is noa priori reason whyweshould notaccept Lipsius’proposition as plausible,58 especially onthegrounds that theAthenians as a rule connected active political participation withanelement of personal risk fortheindividual who chose to volunteer. If weturntotheattested cases of multiple prosecutions, it is also

clear that oursources only rarely distinguish sharply between mainprosecutors and their supporters. There areinstances where entire teams of prosecutors arereferred to as katêgoroi in the plural.59 The status of such katêgoroi is hard to determine, partly because of the lack of a precise terminology (see Chapter 2: 2 for a general discussion). There aresomeexamples of thetermkatêgoros being applied to a person whodefinitely appeared as a supporting prosecutor.60 Persons whohadbeen elected by the Assembly to act as the voice of thepolis were also regularly referred to as katêgoroi.61 But the most serious problem facing the modern historian is that evenwhena supporting prosecutor is explicitly referred to asa synêgoros, it cannot be ruled outa priori that his name hadbeen entered onthegraphê. [Dem.] 59, thespeech against Neaira, of which thefirst fifteen paragraphs were delivered by Theomnestos, the brother-in-law of Apollodoros sonof Pasion, while therest wasdelivered byApollodoros himself, mayserve as a convenient illustrationof theambiguous nature of oursources. Thecase is number 27 inthecatalogue of joint prosecutions at the endof the present book, to which I shall refer frequently 5), have throughout this section. Many scholars, as for example Carey (1992: 4– regarded this speech asa straightforward case inwhich oneperson acted formally as prosecutor, while theother carried therhetorical performance incourt in the capacity of synêgoros, whoassuchwasexempt fromtheprosecutor’s risk. Butthefact that Theomnestos was legally responsible does not necessarily mean that Apollodoros as a synêgoros wasnotalso personally liable for hiscontribution to the case. There canbenodoubt thatTheomnestos waspersonally responsible forhispart in the action. His very first sentence contains a statement that he has initiated the graphê:

Many were the facts, Athenians, which encouraged me to bring this graphê against Neaira andto come into your court.

ν ὴ α τ ν έα ιρ ιΝ θ α ν α ι, γράψασ η ῖο ρ θ ε ςἈ ν δ ,ὦ ἄ ἦ ν α λ ν τ κ α ῦ α ο ρ μ ετ ὰ π α π λ ά ο λ ὴ ντα ϕ γ ρ α η υ ν τ ὶκ α ὶεἰσ θ ᾶ ελ ε . ς ῖν ε ἰςὑμ

by each bouleutês wasequivalent to 40 days of dicastic pay in the year 415 (Boegehold [1995:

22 n.5]). Wedonotknowthefifth-century rateof bouleutic pay,butitis likely tohavebeenless

692). than the five obols attested in Ath. Pol. 62.2 (Rhodes: 1993: 691– 58 Theargument inDem.22.26 assumes thatanyonewhoinitiated a public action (inthis instance apagôgê, ephêgêsis orgraphê) would runtherisk of being fined a thousand drachmai, andthe passage does notallow for thepossibility that several citizens might join forces. However, the passage will notpermit arguments fromsilence. Forfurther discussion of Dem.22.26, seeChapter5: 3. 21, 25.5, 27.14, 30.34; And. 1.6; Dem. 21.64. 59 e.g. Ant. 5.64; Lys. 19.2, [20].7, 21.20– 60 e.g. And. 1.92; Aisch. 3.52. 61 e.g. Dein. 1.51, 58, 114, 2.6; Dem. 25.4.

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InTheomnestos’final request addressed to thejudges, Apollodoros is called to the bêma as a synêgoros ([59].14): I nowaskyou,judges, for something which I find is a befitting request for some onewhois young andlacks theexperience inspeaking: to encourage meto call Apollodoros as synêgoros in this action.

ρ ε ,ὦ ν ςδικα ῶ ἄ ν δ ιο ὖ μ α νὑμ ή μ σ ρ κ δ α τ έο α ρἡγοῦ ιπ ο ε ί, ἅ ινδεηθῆ σ ν π ε α ι μ ρ γ εκελ ό ν ω ο ή ν ν τ έ ο ν τ εὄ α ςἔχο ν τ α κ ὶἀ π α ,σ είρ τ ειν ο ῦλ εῦ υ ν έγ σ α ικα λ έῳ Ἀ π ρ ο λ λ ό ο δ ω γ ν ῶ ν . ιτο ῷ ἀ ύ τ σ α ιτ

So far, thedivision of labour seems straightforward enough. Theomnestos assumed legal responsibility for the action while placing his trust in the legal expertise and rhetorical skills of Apollodoros.62 That Apollodoros himself hadnot been required to enter his name on the writ qua supporting prosecutor maybe suggested by the first paragraph in his synêgoria ([59].16):

First he [i.e. the court attendant] will read out to you the law, on the basis of which Theomnestos brought this graphê and this action is being heard byyour court.

ὴ ν ϕ τ α υ η ν τ ὶ ή ν τ εγρα ᾽ὃ μ ν τ ὲν μ ῖνἀ θ μ ν ο ο ρ τ ν ῶ ο ὑ α γ ὖ ν ν ώ σ τ ὸ ετ α ν ν ό ν ι, κ π α η σ τ ο ν α τ ςἐγράψ γ ᾶ οκ . Θ α ω εόμ ς α ιε ν ὶὁἄ ἰςὑμ ο ὗ τ ο ςεἰσέρχετ

But as we move towards the conclusion of Apollodoros’ speech, the distinction drawn between Theomnestos as hograpsamenos andhis synêgoros fades away: in [59].120–125 Apollodoros relates howhe challenged Stephanos to submit some female slaves for torture, andApollodoros is the one whoprovides the witnesses. These aretasks that weshould normally expect themainprosecutor to have carried out. As noted by Carey (1992: 150), the distinction between ho grapsamenos and his synêgoros has vanished completely at the endof the speech ([59].126): So, I for mypart, while taking vengeance both on behalf of the gods, against whom myopponents have committed sacrilege, and on myownbehalf, have brought them to trial and brought them under your vote... [you for your part must nowconvict them etc.] ... and if youdo so, everyone will think that you have returned a good andjust verdict in this trial which I have brought against Neaira for living with a citizen in spite of her being a foreigner. ή κ α σ ι, εβ ιἠσ ο τ ὓ ,ε ἰςο ςοὗ ῖς εο ῖςθ ο α α τ ί, κ ὶτ ρ σ ε ςδικα ν δ ἄ ν ,ὦ ο ὖ ν μ ὲ ὼ γ ἐ μ εὸτ ὴ νὑ π α ὶὑ κ ρ ῷ ν α ῶ ῶ τ η ω σ ν , κατέστ ιμ ά τ ετουτο ἰςἀγ υ σ ὶε α υ κ τ α ὶἐμ λ ῶ ιγ γ α ὶδ ςκ ἤ α ϕ ικα ο τ ν ν(...) κ α α ε σ ᾶ σ ο ὶτα ςδόξ επ τ ε ν ῦ τ α π ο ιή ῆ ψ ν α τ έρ η ν , ξέν η ν ο ὖ μ ή σ ρ α α ν ψ ν ά ,ἣ γ ὼ ϕ ἐγ Ν α ν έα ν ιρ ἐ ρ α γ ὴ ν τ ν η κ ύ τ σ α ιτα α ίω ςδικᾶ ῷ ν σ υ ο ικ ε . ῖν ἀ σ τ which Apollodoros employs γ ώ Note the emphatic use of the personal pronoun ἐ twice in his final appeal, andnote thephrase thegraphê which I initiated against ‘ played by Theomnestos is sup): the part η ν μ ρ α ψ ά νΝ έα γ ὼ α ἐγ νἐ ιρ Neaira’ (ἣ andperhaps forgotten. Precisely thissentence wasregarded byBlass (1893: pressed – 62 [Dem.] 59.14–15.

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539) as evidence for the sloppiness of the logographer, presumably Apollodoros himself, who could not quite make up his mind as to whether he wanted the case against Neaira to be remembered asTheomnestos’case orhis own. Other scholars have inferred, quite reasonably, that Apollodoros, who mayhave opted for the rôle of synêgoros forstrategic reasons, wasnonetheless averse toplaying second fiddle, even inpurely formal terms. Thetemptation torepresent thecase as hisown, rather than as thecase of Theomnestos, simply proved too strong for himin theend, and thus he felt compelled to sacrifice the fiction that he hadcreated so painstakingly in theprooimion. However, if wefollow Lipsius’suggestion thatall whoparticipated as prosecutors inanaction shared intheresponsibility fortheprosecution, this conflict within [Dem.] 59 disappears. A further argument in favour of this reconstruction is that on the text of the challenge to basanos cited in [59].124 wefind the expression A pollodoros issued this challenge to Stephanos concerning thematters for which he ‘ has ά δ επ ρ ο initiated a graphê against Neaira...’ [τ υ κ α λ ε ῖτ οἈ π ο λ λ ρ ό ο δ ω α ν ο ν ςΣ τ έϕ ὴ γ ρα ν έγ ϕ π τ α ιΝ ρα έα γ α ιρ ρ ὶὧ ν ὴ ν ...]. This document is generally held to be ντ π ε genuine (see most recently Trevett [1992: 190– 191] andCarey [1992: 149– 151]). Thepassage maybetaken asa strong indication that thenames of bothTheomnestosandApollodoros were onthewrit forming thebasis of thepresent graphê. The most important argument in favour of retaining the traditional reconstruction of the case is that Apollodoros is willing to represent the graphê as Theomnestos’responsibility atthebeginning of hisspeech. If Apollodoros’namehadindeed been added to the writ, Apollodoros could have represented himself as a true grapsamenos right from the start. That hewould have wanted to doso is suggested precisely by his emphatic statement in the last part of his speech that he hadplayed a crucial part inbringing about theprosecution against Neaira. An ingenious explanation of what is going on here has been suggested by Thür (1977: 71 n. 17). According to Thür, Apollodoros hadoriginally initiated thegraphê, butthecase hadtoberelaunched inthenameof Theomnestos asa result of a crossaction forhomicide brought byStephanos against Apollodoros. While thehomicide case wasstill pending, Apollodoros wasbarred fromtheAgora and,byimplication, from the courts as a suspected killer. Theomnestos then took over Apollodoros’ case, to which Apollodoros waslater free to contribute as a synêgoros once he had beencleared of theaccusation of homicide ([Dem.] 59.10), butwithout entering his name onthe second writ that formed thebasis of Theomnestos’ action.63 Onbalance, a reconstruction along thelines suggested byThüris themoreprobable; andthus it is not all that likely that Apollodoros was legally responsible for the graphê in which [Dem.] 59 wasdelivered. On the other hand, the ambiguity surrounding Apollodoros’ rôle in the present action remains a problem. Pace Blass, Apollodoros’insistence onthepart that hehadplayed in initiating theaction should notbe regarded astheresult of Apollodoros’sloppiness orincompetence as a logographer. It was very likely deliberate. Aswill be shown inChapter 4: 2, mostother attested supporting prosecutors in public actions seem to have preferred to stress their ownpersonal motivation for 63 Forparallel

instances

of relaunched cases, see thediscussion inChapter 5: 1.

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taking part intheprosecution asgenuine katêgoroi intheir ownright, although none of them actually went to the length of representing themselves as genuine grapsamenoi in thewaythat Apollodoros did. Precisely this ambiguity inoursource material mayseem, on the face of it, to support Lipsius’claim. There is, however, one attested legal action involving multiple prosecutors that provides decisive evidence against the assumption that all of themwould have incurred legal responsibility for theaction. The action concerned is thegraphê asebeias brought byMeletos against Sokrates in 399 (cat. no. 8), inwhich Meletos received support fromtwoother prosecutors, Anytos and Lykon. A document, carrying thenameof Meletos onlyandpurporting tobethewritof the action, is cited in Diog. Laert. Sokrates 2.40; andFavorinus allegedly claimed that it wasstill kept in the Athenian state-archive as late asthesecond century A.D. Because that document is very likely a forgery it will not receive further attention here.64 More promising is Plato’s dialogue Euthyphron, which opens witha conversation between Euthyphron and Sokrates in front of the Royal Stoa. Sokrates tells Euthyphron about the charge that Meletos has just brought against him (2A-C). Meletos is at thecentre of Sokrates’account of thecharge, andit appears fromthis account that his name maywell have been the only name on the graphê. This impression is conveyed also by Plat. Apol. 19A-B, while Apol. 27C shows that Meletos hadsworn theprosecutor’s oath. Andtheinformation thatcanbederived fromPlato is further corroborated in Xen. Mem.4.4.4 and4.8.4, where Meletos is represented as responsible for the graphê, while Anytos andLykon are not even mentioned. Decisive, though, is the remark made by Plato’s Sokrates inApol. 36A-B that Meletos carried the prosecutor’s risk alone:

...but this indeed is clear to all: if Anytos and Lykon had not mounted the speaker’s platform to accuse me,Meletos would even have incurred afine of a thousand drachmai for nothaving obtained a fifth part of the votes.

ή ρ γ ο ν υ η Ἄ η τ ο ςκ α κ τ α ν ὶΛ κ ύ ω έβ ν ἀ ὴ λ ο ν τ ,ὅ ε ο ῦ τ ιε τ ἰμ όγ ὶδῆ τ ν π α ...ἀ ὰ λ λ ο ν β ῶ ςτ ὼ μ ν έρ τ π ὸ τ π ο ν έμ ϕ α λ α μ λ ετ εχιλ ά ία ὐ ,ο ς ςδραχμ ὦ ν ἂ ,κ ῦ ο ε ςἐμ τ ν σ ο ϕ ν. ω ή ψ

This joke would hardly have made sense, if Meletos had not carried sole responsi-

bility for the action. The position of Anytos andLykon in Meletos’graphê against Sokrates then shows that risk-free participation as a prosecutor in a public action wasindeed possible. It willbeconsidered inChapter 5: 1whytheAthenians permittedthis apparent deviation from theprinciple of risk-and-reward that underpinned mostof their democratic institutions. Presently, it mustbe considered if it wasat all possible for more than oneindividual to assume legal responsibility fora public action. That this wasnotpossible, andthat one individual would always be compelled to assume sole legal responsibility for a public action wasthe view of Kahrstedt (1934: 305) and(1936: 223).

64 Onthis document, see most recently Sickinger (1999: 132), whosuggests as a possibility that the document wasa later reconstruction, deposited in theMetroon inorder to satisfy thecuriosity of foreign visitors.

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Kahrstedt adduced precisely the graphê asebeias against Sokrates as the only valid of his contention.65 But the example of Meletos, whoassumed sole legal responsibility fortheaction while receiving rhetorical support fromprosecution synêgoroi, does not on its ownprove Kahrstedt’s point. It shows only that some prosecution teams hadadopted thestrategy of letting oneindividual assume theentire risk connected with theaction, while hissupporters incourt would notbe subject to fine andpartial atimia if theprosecution ended ina disaster. Butthis does notmake it clear whether twoormoreprosecutors hadthealternative option ofassuming joint responsibility, whenever this wasperceived as a tactical advantage. It mayhave been regarded asdesirable for some prosecutors to assume jointly therisk connected with bringing a public action, notbecause it would have reduced the risk for each individual concerned (atimia, at anyrate, could notbe ‘shared’in thatway); butbecause theability andwillingness totakeonsuchrisks might beheld to demonstrate to all the political clout andpublic-spiritedness of the prosecutors involved. It is a commonplace in recent modern scholarship that the honour (timê) and prestige that could be gained by an ambitious member of the Athenian élite from initiating andfighting a public action at high personal stakes wasone of the most important, legitimate motives forengaging inthis type of litigation.66 Some attested prosecution teams definitely numbered several individuals with high political profiles, who, it might be assumed, hadchosen to participate together partly in order to further their personal political ambitions (cat. nos. 10, 14, 18, 20, 22, 36, 37, 38). Just as Apollodoros may have been uneasy with his rôle as Theomnestos’ synêgoros in the action against Neaira, so it might be imagined that a citizen of, say, Demosthenes’calibre would have shied awayfromappearing as the synkatêgoros of Lykourgos and vice versa (cat. nos. 36 and 37). Thus, in those public actions where several citizens with a high social andpolitical status participated together in the prosecution, it maybe easier to explain their willingness to cooperate with each other if it can be established that they all had the option of taking on the full risk by adding more than one name to the graphê. Unfortunately, onthis particular point theevidence lets usdown. Theexample of Apollodoros’andTheomnestos’action against Neaira discussed earlier inthis section shows thatcaution isrequired inanyattempt todetermine who andhowmany were legally responsible for bringing a given public action. Moreover, [Dem.] 59 is our only surviving public prosecution speech which contains both the speech of a litigant whodefinitely hadtaken legal responsibility andthat of his supporting prosecutor, who, on balance, probably hadnot. That Apollodoros himself openly declares hisposition asTheomnestos’synêgoros attheoutset allows us tentatively to assess the formal distribution of responsibility between the main support

65

66

Apart from this graphê asebeias the rest of theargument produced by Kahrstedt is notpersuasive. The only other actual case that hecites is a private action; andtherest of his argument is based onthecontention thatitcannot possibly beimagined thatprofessional synêgoroi (!) would have hadto assume responsibility: ‘Dannwären sie nacheinem verlorenen Prozeß derSukkumbenzbuße verfallen oder hätten deren Betrag bei ihrem Klienten liquidieren müssen.’ 39) withreferences toprevious British andAmerican scholSee mostrecently Christ (1998: 34–

arship

in n. 132.

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litigant and his supporter. However, the fact that even this seemingly straightforward case has turned out to present difficulties provides ample illustration of the complexity of the source material. Apollodoros wasable to redefine his ownrôle fromthatof Theomnestos’synêgoros tothe‘real’grapsamenos inthecourse of his

speech. This constitutes animportant warning to thehistorian: other speakers, who delivered contributions that appear to have been main prosecution speeches, may also have exaggerated their ownrôle in the actions in which they were involved. The other extant prosecution speeches, main as well as supplementary, have been torn from their original context, andthe (assumed) main speeches as a rule do not provide information ontheformal position ofother prosecutors whotook part inthe legal action. There areonly three passages that could be usedto suggest that it waspossible for more than one prosecutor to assume legal responsibility for a public action. All three of them arehighly problematic. Thefirst isXenophon’s account oftheproceedings thattook place intheAthenian Assembly after the battle of Arginousai in 406. In the tumultuous debate which preceded the trial of thegenerals, Euryptolemos anda number of other citizens attempted to stop the proceedings by threatening a graphê paranomôn against Kallixenos, the proposer of the decree prescribing the format of the eisangelia (τ ὸ νδ ὲ ϕ ϕ ά έ σ ν κ ρ α μ ο α ν ρ α ιΕὐρυπ τ Κ ά ν ο σ εκ λ α α ρ έσ ν ε λ α τ ο τ λ εγ λ π ό ίξ ο α ε ςσυγγ π ν ν ε ο μ ό ςτ εὁΠ εισ κ τ ιά ο ν α ςκ α ὶἄλ λ ο ιτιν έ , Xen. Hell. 1.7.12). Thethreatened action ς appears to be a joint venture. That is further suggested by Lykiskos’ subsequent proposal that all the prosecutors should bejudged by the same voting procedure as the stratêgoi if they did not withdraw their summons. They were forced to desist, andthe passage as a whole suggests that all of them were seen as responsible.67 However, whatXenophon is attempting todescribe here is thedêmos running amok, andthe passage is thus of only limited value asevidence for normal procedures. The two other passages are little better, in so far as they belong in a context of staged confrontations in Aristophanes’ two surviving fourth-century comedies, Ekklesiazousai andWealth. These passages are very hardto interpret, andthey are bynomeans unambiguous. 1020, thewomen havepassed a decree providing that if InEkklesiazousai 1015– a young manwhodesires a young woman does notsleep with anoldwoman first, ‘the older women shall be permitted to pull the young man with impunity, seizing α υ ν α ιξ β ιςγ υ τ α έρ ῖςπ ρ εσ ὶν himby his knob’(τ ἔσ α τ ω τ ῖλ ὸ ν ν ε τ έ ο α ν ν ἀ ἕλ κ ιν ε β ο μ έν α ςτ ο ῦπ α τ ). The text of the women’s decree undoubtedly alludes to τ ά λ ο υ measures of self-help asprovided inreal Athenian legislation, andtheambiguity of theplural ‘theolder women’inthetext contributes tothesubsequent dramatic complications.68 Intheplay, a young mansooncomes into conflict with the first provi-

67

68

. ν ία η σ ϕ λ ῶ κ σ ιτ ὴ ν ἐκ μ ὴ ἀ ὰ ν There is a serious textual problem in 1.7.13 where all mss.haveἐ ; butthe text of themss. is easily translated as ‘if ή σ ιν ϕ ῶ νκλ σ ὴ ιτ μ ὴ ἀ ν ὰ Dobree emends to ἐ α ὶ they did not leave the ekklêsia alone’. In the last clause of the passage the plural is used ‘κ ἠ ν α γ κ ϕ ιέ ά η ν σ θ σ α α ν ιτ ἀ ή σ ὰ εις ςκλ ᾽. It cannot bedetermined precisely whattype of legal initiative is alluded to in this passage, and it is more than likely that such precision wasnot intended by Aristophanes at all. There are

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sionof thedecree. Theplural, which leaves opportunity forseveral women to ‘pull’ the unfortunate youth, immediately gives rise to anugliness-contest between two oldhags whoeach assert their right to actupontheself-help clause simultaneously 1111). Theyoung man,forhispart, contemplates withhorror theprospect of (1049– having to service the two of them (1089– 1111). The episode appears to endwith the young manbeing dragged into a house bythetwowomen whointend to have their way with him (1105–1111). In Wealth a sykophant, whois nowoutof a job because of Wealth’s regained sight, threatens legal action. Having been outmanoeuvred by the Just Citizen and Karion, the sykophant realizes that hecannot carry theaction alone (944– 950):

I’m leaving. I knowthat compared toyouI’mthe weaker party byfar. But if I can get hold of a partner, even a fig-wooden one, I’ll get this powerful god punished today for openly overthrowing the democracy single-handed without the consent of either the boulê of the citizens or the Assembly. ιγ ν ώ σ κ γ ρἥττ ὰ ω ω ν ιγ ὢ π Ἄ ειμ ν π ο λ ὺ ·ὰ νἐ ῶ ὑμ β ω τ ιν ὰ ά λ ν γ ο δ ν ὲσύζυ κ ἂ νσ ο ν , τοῦ ρ τ ὸ ντ ο νἰσ ν ὸ θ υ χ ε ὸ ν ·ύκιν μ ερ η ή ο ν ν ή , δ σ ο ν α ω ιδίκ ῦ π τ ὼ ο γ ἐ κ α ν α ῶ τ α ςε λ ιὴ μ ύ ἷςὢ τ ὁ ε ό ν ιπ ν εριϕ ο ς μ η ρ ο κ α ν δ τ ὴ τ ὴ ν ία π ν λ ,ο ιθ ὔ τ ετ ὴ νβου ὼ ν ὴ ν τ τ ῶ η ν σ π ία ο λ ιτ κ ν λ ῶ ν ὴ ν . ἐκ ο ὔ τ ετ

The type of action suggested by ‘for openly overthrowing the democracy’ (ὁ τ ιὴ κ α τ α λ ρ ύ ὴ α ε ι(...) τ νδημ ο ) is eisangelia with a clear allusion to the wording τ κ ία ν of the nomos eisangeltikos (Hyp. 3.7). It cannot be determined whether the sykophant’s fig-wooden yoke fellow would share formally in the responsibility for the eisangelia, butit is clear at least that hewasrequired forrhetorical assistance in the legal action. Aristophanes’ comedies should not be pressed too hard as evidence for legal technicalities, andthe Aristophanic happenings, even if they hadbeen unambiguous, would not serve as proof that there could be more than one eisangeilas (as perhaps suggested by Wealth 944– 950) ormore thanoneperson carrying outa seiz1020). The only inference that ure or arrest (as suggested by Ekklesiazousai 1015– they allow usto make is that legal confrontations often involved several active participants on the side of the prosecution. In that respect at least, the evidence of the comedies reinforces theevidence pertaining to thereal team-based public prosecutions, which will nowbe discussed.

certain remarks made inthesubsequent dialogue which mayplay upontheprovision forprivate seizure of a slave, anactwhich could becountered bythemeasure ofaphairesis eiseleutherian: ᾽ἀ ρτ ν ο ὴ ῶ τ νδημ ϕ ῆ ῶ ν τ ...) and 1064–1065 in which the young man α α ίμ ιρ νἀ ᾽ἢ ίδ 1023 (τ offers toprovide guarantors (cf. Isokr. 17.14). Note, ontheother hand, theremark made bythe , presumably a stock excuse for ᾽ ώ ᾽ο ,ἀ ᾽ὁνό κ ὐ ἐγ μ ο 1056: ἀ λ old woman in 1055– ισ λ ε κ ςἕλ λ λ resorting to self-help measures of a less private anda morepunitive kind, which wasusedalso by Euphiletos in Lys. 1.26.

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The catalogue numbers 41 attested cases dating from theperiod between 420– 417 and325/4, notcounting attested apophaseis andeisangeliai to theboulê which, according to communis opinio, involved teams of prosecutors as a standard feature. Twenty-two cases areknown directly fromspeeches delivered byparticipants inthe legal actions: eight fromdefence speeches (cat. nos. 1,3, 4, 5, 6, 11, 31, 35), twelve fromprosecution speeches (cat. nos. 9, 10, 12, 13, 18, 19,22, 23, 27, 28, 30, 37), and twofrom pairs of speeches delivered onthe side of prosecution anddefence (cat. nos. 7, 34). Theother nineteen prosecutions areknown fromreferences topasttrials or from surviving fragments of lost speeches. In 24 cases wecantell forcertain that there were several prosecutors involved, butit is impossible todecide whoamong themhadtaken legal responsibility forthe action.69 In the other seventeen examples of prosecution teams weknow the name of one person who hadinitiated the prosecution,70 butin most instances it cannot be decided with certainty that his name wastheonly name onthe writ. Exceptions are cat. nos. 7, 8, 12, 18, 24, 28, 34, and35, which can all be attributed to a single individual. But on their ownthese eight cases donot warrant the conclusion that legal responsibility did necessarily rest with one individual only. Two important considerations, however, point usin that direction. The first is that, apart fromtheproblematic case oftheprosecution against Neaira (cat. no.27), there is nota single attested example of a public action for which twoor more citizens appear to have assumed joint legal responsibility for theprosecution. Second, among the41 team-based prosecutions there areat least eight cases in which prosecutors with a high political profile, or at least a high level of political ambition, participated as prosecutors without having taken on the prosecutor’s risk and responsibility (cat. nos. 7, 8, 17,20, 26, 35, 37, 38). In a further twocases (cat. nos. 1 and 12) weknow that key persons in the rhetorical performance in court were not themselves legally responsible fortheactions. The second point is the more important, for, as pointed out earlier, the prosecutor’s risk could not be distributed between several individuals in the way that it might have been possible to share the purely financial risks associated with most private actions. Thustheonlyconceivable motivation forseveral prosecutors voluntarily toassume joint responsibility foranaction musthave beentheincreased prestige that would follow from such an act, along with the reluctance on the part of prominent prosecutors to play second fiddle on a prosecution team even in purely formal terms. As mentioned above, it is commonly held that the prestige that could be gained from participation in a public trial wasdirectly related to the prosecutor’s willingness to assume the full risk connected with the initiation of such anaction. Onthat assumption, it might have beenexpected that a citizen of a high social andpolitical standing whochose tojoin forces withoneof his peers as a prosecutor in a public action would have wanted to assume thefull risk himself in order to maximize the prestige that he would gain from a successful outcome of the legal action. If that is so, the risk-free participation byprominent citizens as supporting prosecutors in a

69 Cat. nos. 1, 2, 3, 4, 5, 6, 9, 11, 13, 14, 15, 17, 19, 20, 21, 25, 27, 29, 30, 33, 36, 39, 40, 41. 70 Cat. nos. 7, 8, 10, 12, 16, 18, 22, 23, 24, 26, 28, 31, 32, 34, 35, 36, 38.

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significant proportion of attested prosecution teams maybe taken to indicate that supporting prosecutors would under nocircumstances beallowed toenter their names on the writ even if they wanted to, because only one individual could take on this responsibility. Alternatively, it may be suggested that the high-profile supporting prosecutors had actively chosen not to assume the prosecutor’s risk because the question of formal responsibility wasof secondary importance fortheir personal prestige compared to the significance of the rhetorical rôle they would be playing on the team. While thesecond alternative cannot beruled out(see thediscussion inChapter 5: 2), Apollodoros’uneasiness about hisrôle asTheomnestos’synêgoros mayserve as an indication that thefirst alternative is theoneto be preferred. Nomatter which of the twoexplanations is accepted, the fact that prominent citizens sometimes chose to participate in public actions without being personally liable tothepenalties incase of failure shows that they would still havebeenable to satisfy their ambition through this type of participation, regardless of their formal position ontheprosecution team. Thus, thelegal risk andresponsibility taken onby the main prosecutor didnotnecessarily define himas the legal protagonist in the court room, whowasbound tooutshine theother members of theprosecution team by virtue of his position as hograpsamenos. That proposition is further supported bytheambiguous nature ofmostofoursources formultiple prosecutions. It mustbe regarded as significant that we are very often unable to distinguish between hoi grapsamenoi andtheir synêgoroi; and,further, thatthis applies evenincases known directly from speeches delivered by litigants appearing in or confronting prosecution teams (cat. nos. 3, 4, 5, 6, 9, 11, 13, 30). This ambiguity inoursource material mustbeascribed tothetype of pleading engaged in by supporting prosecutors, andto the way in which such synkatêgoroi represented their ownrôle. More often than not, they defined themselves as prosecutors in their ownright, rather than as mere members of a backing group who were there to praise thecharacter of themainprosecutor andaddto hisdisplay of personal prestige. In Chapter 4: 2, a closer study of their rhetorical strategies will add further weight to this argument. It is equally suggestive that some of thedefence speeches contain personal attacks aimed at the katêgoroi without distinctions being made between main prosecutors andsynkatêgoroi (cat. nos. 3, 4, 5, 6, 11). EvenAndokides, whosingles out 123, 137 and 139, proKephisios as main prosecutor (cat. no. 7) in 1.33, 71, 121– 101. Here he distributes duces a systematic attack oneach of his katêgoroi in 1.92– hisvenom equally among Kephisios, Meletos andEpichares, whoareallattacked as katêgoroi intheir ownright. Thepassage suggests thatthelatter twowere important players ontheprosecution team, andthere is noattempt onAndokides’part to suggest that Meletos, Epichares, and Agyrrhios (a third synêgoros who receives his 136) appeared as Kephisios’ backing group of loyal supshare of abuse in 1.133– porters. Forty-one attested public actions in which several citizens contributed rhetorically to theprosecution’s case is a considerable number, if webear in mindthat for many attested public actions wehave noinformation atall pertaining totheidentity

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of theprosecutor orprosecutors. Ingeneral, thenames ofdefendants haveaconsiderably higher survival rate inoursources.71 It must also be noted that in themajority

of public actions about which weknow the name of only one individual prosecutor, wecannot beatall certain thattheprosecution wasinfact carried byhimalone. The forty-one attestations of multiple prosecutions are probably only the tip of an ice-

berg.

In Chapter 2: 3 the participation by multiple speakers in public actions was linked with thefact that such actions were heard over a full court day. However, the material collected in the catalogue does not permit the conclusion that the use of supporting katêgoroi wasequally widespread in all types of public procedure. One feature which is common to all buttwoof the 41 cases (cat. nos. 1 and 12, both apagôgai/endeixeis concerning homicide) is that theoffences that gave rise to the actions were all perceived as crimes committed against thepolis rather than against an individual victim. The catalogue numbers eight or nine graphai paranomôn,72 six apagôgai/endeixeis (of which twowere apagôgai kakourgôn),73 five eisangeliai to the Assembly,74 three graphai nomon mê epitêdeion theinai,75 one graphê asebeias (cat. no. 8), onegraphê astrateias (cat. no. 10), onegraphê xenias (cat. no. 27), andone possible graphê aprostasiou (cat. no.41). Fourteen other prosecution teams pleaded in public actions of unknown type, all of which seem to have been related formally to specific crimes that involved noindividual victims directly.76 Ourmaterial does notallow usto assess thefrequency ofjoint prosecutions in those public actions that concerned offences committed against individual victims. The number of attested actions known actually to have reached thecourt is fartoo 68 weare told that anotherlow (there are only four such cases).77 In Lys. 13.67– 71 Thefollowing counts mayserve asanillustration: of Hansen’s 130eisangeliai totheAssembly weknowthenames of individuals involved intheprosecutions in53cases andthenameof the defendant in 120 cases. Of the 33 apagôgai/endeixeis/ephêgêseis recorded in Hansen (1976), names of theprosecutors areattested in 15cases (of which at least five involved multiple prosecutors) andthe nameof thedefendant in29 cases. Of the39 graphai paranomôn recorded in Hansen (1974), weknowthenames ofoneormoreof theprosecutor(s) in30cases (of which at least seven involved multiple prosecutors) andthenameof thedefendant in33 cases. 72 Cat. nos. 19, 20, 23, 24, 26 (?), 29, 30, 32, 34.

73 74 75 76

Cat. nos. 1, 7, 12, 28, 33, 37. Cat. nos. 14, 16, 17, 31, 35. Cat. nos. 18, 22, 25. Cat. nos. 2, 3, 4, 5, 6, 9, 11, 13, 15, 21, 36, 38, 39, 40. 77 Manyprosecutors participating inpublic actions, beitasgrapsamenoi orassynkatêgoroi, stated their personal, on-going hostile relationship with the defendant as onereason whythey were volunteering as prosecutors. However, in the majority of such cases, the prosecutors did not attempt to define themselves as directly affected by thespecific unlawful act with which the defendant wascharged. The practice of multiple prosecution in which several citizens would profess their individual anddifferent motives forparticipating together inthesame public action makes it hard to locate such a public action in a single series of law-suits involving the ‘repeated appearance of the same parties in court’(Osborne [1985: 52]), or to regard it as a culmination of a feuding relationship between twoindividuals (see esp. D. Cohen [1995a]). I shall return to that problem in Chapter 4 and5; suffice it to say here that it is essential to distinguish between graphai brought by the victims personally andgraphai brought bycitizens

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wise unknown Phainippides hademployed anapagôgê (Hansen [1976: 126] cat. no. 6) against Agoratos’ brother for cloak-robbery (lôpodysia), but we are not told whether Phainippides himself was the victim, or whether he acted on behalf of another citizen. Nordoweknowwhether Phainippides wasacting alone. Apollodoros sonof Pasion, whorelates howhe hadbrought andwona graphê pseudoklêteias against Arethousios ([Dem.] 53.15– 17), seems to have acted on his own. In the one attested graphê hybreôs (Isaios 8.41 and fr. VIII [Thalheim]) we knowonly the name of thedefendant Diokles of Phlya.78 Theonly inference wecan make about the prosecution is that theaction probably wasnotinitiated bythe victim (he wasatimos), but by a person (or persons) acting on his behalf, andwhose motives forvolunteering cannot beascertained (pace Osborne [1985: 50]). Theonly attested eisangelia kakôseôs orphanou to have reached the court wasthe case in which Isaios 11 wasdelivered. It appears to have involved one prosecutor only, a manwhowassharing responsibility for the orphan with Theopompos.79 The rest of the attested public actions actually brought by or on behalf of individual victims are all probolai initiated through the Assembly, to which special rules may have applied.

The lack of attested examples of public actions brought on behalf of individual victims poses tremendous problems foranyattempt to forma general impression of the use of multiple katêgoroi in graphai. It is not inconceivable that the use of synkatêgoroi ingraphai concerning crimes committed against individual victims would have depended on whether the victim himself had instigated the action, or whether other citizens hadbrought thegraphê onhisbehalf.80 Indeed, theassumption thatho whowere volunteering onbehalf of thecommunity as a whole oronbehalf of another individual. 78 WhenIsaios 8 wasdelivered, thecase wasstill pending. Isaios fr. VIII (Thalheim) indicates that Diokles wasprosecuted in theend. 16, 20, 31 suggest that the prosecutor wasacting alone. Note, 6, 13– 79 The passages Isaios 11.2– however, theuseof theplural about theprosecution in 11.43. 80 While there is at least one type of graphê which seems to have required action by the victim himself, the graphê adikôs heichthênai hôs moichon ([Dem.] 59.66, see also Ruschenbusch [1968a: 59]), other types of graphê seem to have beenaimed at providing protection andlegal redress forindividuals whowerelegally orphysically prevented from initiating theaction themselves. The one attested graphê hybreôs, brought against Diokles of Phlya, is a case in point. Notonly hadDiokles allegedly walled uphis victim, he hadalso brought about hisdisfranchisement, leaving the manunable to seek legal redress. A whole range of public actions provide

redress through the agency of others for precisely those citizens whoclaimed to be unfairly disfranchised. The graphê bouleuseôs (perhaps for tampering with thedebt-register with maλ ύ ο ευ licious intent (β σ ) by the magistrates responsible), pseudengraphês (for false entry on ις thedebt-register), andpseudoklêteias belong tothis category (false summonsing might result in the victim’s atimia because he would lose his case by default). These procedures provided an avenue for other citizens to challenge administrative or legal decisions that hadresulted in the 663] for the different procedures andother modern victim’s atimia (see Rhodes [1993: 662– discussions). True, Apollodoros personally initiated hisgraphê pseudoklêteias against Arethousios ([Dem.] 53.15–18), butprior to bringing his action he hadpaid off his debt to the treasury. Other persons whowere notas wealthy asApollodoros would have hadtorelyonvolunteers to prosecute ontheir behalf as longas they remained atimoi asstate debtors. Aristogeiton is held to

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boulomenos (or more precisely hograpsamenos) would in most cases be identical with the victim directly affected by the crime that wasbrought to court under the heading of a public action rests on alarmingly weak foundations.81 We simply cannot tell what wascommon practice in this particular area of the administration of

justice.82

have acted illegally by initiating his graphê bouleuseôs against Ariston before he hadpaid off hisdebt to the treasury (Dem. 25.72 pace Hansen [1976: 147], notdiscussed byRhodes [1993:

663]. Thepassage is horribly difficult to interpret andthere maybealternative solutions). IG II2 398grants Sopolis andhisrelatives theright toprosecute theresponsible magistrates 1631.393– by graphê bouleuseôs if the value of the oars returned by Sopolis is not deducted from his total debt. No doubt, this provision is intended as a protection of Sopolis: as long as part or all of Sopolis’public debt remained outstanding he would notbe ina position to sue, hadit notbeen for this explicit amnesty. 52). Christ (1998: 130 with n. 38) rightly notes that there are very few 81 e.g. Osborne (1985: 48– attestations of graphai brought by the injured parties themselves, andthat the frequency with which this happened hasbeen exaggerated in Osborne (1985) andin more recent scholarship. 56) only five were initiated bypersons whocanbe Of thegraphai listed inOsborne (1985: 55– regarded as thevictims directly affected bythecrimes giving rise to thepublic action. Three of these were dropped: [Dem.] 59.66 (adikôs heirchthênai hôs moichon), [Dem.] 59.52 (xenias), Dem.45.4 (hybreôs); whilst one(Dem. 25.71, bouleuseôs) hadyettobetaken tocourt, andwe are told that the victim is notformally allowed to bring the action because of his atimia. That leaves a solitary attested graphê brought bythevictim personally: Apollodoros’graphê pseudo18).Inregard tothetwoattested eisangeliai kakôseôs klêteias against Arethousios ([Dem.] 53.15– orphanou (one of which wasdropped), Osborne’s inference that ‘[n]either prosecutor seems likely to be putting theward’s interests first’is dangerous. Hisinterpretation (1985: 49) of the 32) rests ona action brought byTheokrines against anunidentifiable Polyeuktos ([Dem.] 58.31– 59, seealso highly doubtful family connection between Mikon andEpichares (Davies 1971: 56– cat. no.28 with note); andOsborne’s inclusion of Polyeuktos in Mikon’s family is pure conjecture. When referring to thejudges’perception of Theokrines’graphê paranomôn over the 32) thatTheokrines wasbelieved tobeacting for same issue, Epichares saysexplicitly ([58].31– ᾽ἐπ ῳ δ ίσ τ ο ευ ύ τ σ ν ὡ α ςδ ὴ thesake of theorphan, andthat this wasthereason forhissuccess (τ β η ή ο θ σ α ν ῷ π τ α ιδ ί). While this does notpermit inferences about Theokrines’real motives, ιτ theremark suggests that prosecutors intervening onbehalf of anorphan would have to convey the impression that they were acting for the sake of thechild. As for theprosecutor’s motives behind the eisangelia kakoseôs orphanou against Theopompos, we know only Theopompos’ hostile version (Isaios 11). 82 This lack of attested cases is unfortunate inmore thanonerespect. Insome modern adversarial systems the rôle of the individual victim incriminal actions is perceived as extremely problematic, asevidenced, forexample, bythecurrent debate inBritain ontheposition of rape victims aswitnesses fortheprosecution. InDenmark, thevictim ofa crime is allowed toclaim compensation inperson during thehearing of a criminal case brought bytheState Prosecution Service, butonly in the types of procedure that donotinvolve layjudges orjuries (LawonAdministration of Justice §991 with commentary). In criminal cases heard by lay judges or byjuries, the victim’s claim mustbevoiced bytheState Prosecutor because of ‘fearthatthepersonal conduct of the individual seeking compensation during the hearing maycomplicate in anunfortunate manner those criminal actions heard bylayjudges’(myitalics). It would have been interesting to seeprecisely howtheAthenians dealt with this issue intheir pleading, andif they perceived thevictim’s position as problematic in similar or, indeed, inentirely different ways–theonly extant speech delivered bythevictim personally ina public action is Dem.21, which maynotbe typical.

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Thus, the generalizations that can be made from the evidence set out in this section pertain only to thetypes of public action inwhich the main victim wasperceived to be the entire community, andwhich hada direct bearing onindividual conduct ina rather narrowly defined political sphere (army, Assembly, boulê, courts andareas in which magistrates exercised administrative power). In this particular area of Athenian administration of justice, however, the conclusions that can be drawn have considerable implications for the question of active participation by ordinary citizens in public actions concerning crimes with a significant perceived political dimension. In this section it hasbeen established that it waspossible for a citizen to participate in a prosecution team as a synkatêgoros, whowould notincur partial atimia anda fine of a thousand drachmai if theteamfailed toobtain 20%of thevotes. This meant that citizens could take an active part in public actions at different levels. They might choose toenter their nameonthewritandassume theprosecutor’s risk, orthey could have their saywithout running a personal andfinancial risk that only fewcitizens would be able to afford. It also meant that citizens whowanted to participate actively would not necessarily be faced with the rather daunting task of

having toaddress thecourt fora third of acourt day,forit would bepossible toshare the rhetorical burden among a number of individual prosecutors. Andwhile a synêgoros, whose name wasnotonthewrit, might stand to gainprestige andthesatisfaction of revenge from participating in a successful prosecution, the only loss he would incur from anacquittal of the defendant wasloss of face. Hewould be exemptfromthestatutory penalties, andthustherisk-and-reward mechanism, bywhich theAthenians attempted tocontrol theparticipants inthepolitico-legal sphere, clearly wasnotfully operational inhiscase. The possibility of participating in public actions at different levels is assumed 226. Aischines is accused of by Demosthenes inhisattack onAischines in 18.222– inconsistency because of hisdecision to prosecute Ktesiphon for illegal decree pro-

posal after having remained passive

inprevious graphai paranomôn (Dem. 18.223):

Thephrasing of these decrees, Athenians, is identical, downto thelast syllable, withthedecree which waspreviously proposed byAristonikos andnowbyKtesiphon. AndyetAischines did not himself bring legal actions against them, nor didheassist theperson whodidindict them in hisprosecution.

ή ῥ ὰ β α τ ὰ ὐ ςκ ὶτα ϕ Τ ὰ ίσ α μ ςσυλλα τ υ α τ, ὦ ὐ ρ τ ε ἄ ν ὰ δ η ὶτ ςα ςἈ ὰ ι, τ ψ ῖο α ν η θ ϕ ε ν ρ α ο γ ὑ έγ τ ο ῶ ν μ α ᾽ἔχ τ ε ὲΚτησιϕ δ ν ιἅ ικ ο ῦ ν ό ,ν ρ ισ τ ς μ ρ ρ π ό ὲ ν ο π τ Ἀ ε ν ερ γ ό γ η ῳ κ α σ τ υ μ έν α ψ α ρ γ ῷ ετ τ ὔ ,ο ό ᾽ἐδίω τ ς ὐ α η ν ςο ὔ τ ξ ε ίν χ ᾽Α ἰσ α ί. κ σ ῦ τ ὶτα η ρ σ εν . Demosthenes’attack gains inforce precisely because of theimplication thathadhe really wanted to, Aischines could have hadhis say without having to bring a highrisk action himself. Aischines’utter passivity on these previous occasions can thus be held up as proof of his insincerity in the present graphê paranomôn against a decree of a nearly identical wording.83

83 See also Dem. 18.251. Demosthenes claims that through his passivity accepted thehonorific decree forDemosthenes as lawful.

Aischines has in effect

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The possibility of risk-free participation in public actions

111 through synêgoria

calls for a modification of the current reconstruction of the Athenian courts as a space dominated by active speakers whobelonged totheélite. Rhodes (1986: 142)

hasdrawn attention to synegorial activity as onewayin which anordinary Athenian, whodidnot have the advantage of being born into an illustrious andwealthy family, might rise to political prominence, andAischines is oneexample. However, even high-born citizens like Demosthenes and Perikles (if Plut. Kimon 14.5 and Perikles 10.6 canbe trusted onthis) madetheir first appearances inpublic actions as 686 also suggests thatyoung mencould synkatêgoroi. Aristophanes Acharnians 685– further their ambitions in this way.84 Ontheother hand, participation asa synkatêgoros ina public action should not beperceived byusonlyasa stepona ‘career ladder’thatmight leadontosomething nobler and better (pace Engels [1989: 44–451]). It is clear from the evidence discussed inthis section that eventhemostprominent andpolitically experienced citizens such as Anytos (cat. no. 8) andLykourgos (cat. nos. 31 and35) appeared as synkatêgoroi in public actions brought by other citizens; andDemosthenes and Lykourgos collaborated as prosecutors onmore than oneoccasion, long after both hadestablished their reputation in the political sphere (cat. nos. 36 and37).85 The distribution of tasks between the members of a prosecution team in each individual case wasvery likely a matter of court strategy, as will be argued inChapter 4: 2.

c. Public actions initiated through the boulê andthe Assembly

The present section is concerned with the types of procedure that are commonly 116]). A referred toas ‘extraordinary’inmodern scholarship (e.g. Todd[1993: 112– number of public actions were notinitiated directly byindividual citizens through theappropriate magistrate orboard of magistrates, butindirectly through theboulê andAssembly. Certain types of criminal conduct could be brought to the attention of either of these twodecision-making bodies by oneor several individuals (not 60, [1976: 133] cat. no. 82] cat. nos. 43– necessarily citizens: e.g. Hansen [1975: 79– 16), andtheboulê orAssembly would subsequently debate andpassa vote deciding whether ornotthecase should be allowed to proceed for further hearing. More than anyother type of public action, the procedures brought via the Assembly ortheboulê could beperceived aslegal actions inwhich thecommunity as a whole hada stake, inso farasnocase could progress without theconsent of these large decision-making bodies. Consequently it is inthese types of procedure thatwe should bemost likely to findelected prosecutors whoacted formally asthevoices of ο ιςτ ο ῖς νστρογγύλ ω τ ρ ε ῖνε ιξυνάπ γ ἰςτά ίε ο α 84 Ὁ χ ο ςπ η υ π ο σ δ ῷ ά α δ σ ςξυν ὲνεαν ία τ ςἑα υ . I see no compelling reason to assume with MacDowell (1971: 198) that the young μ α ιν σ ῥ ή manserved ontheboard of synêgoroi selected bylot. 85 Contrast the attitude to advocates for theprosecution in theRoman Republic, allegedly a task 139] withCicero’s complaint inDivinatio in most suitable foradulescentuli (Crook [1995: 138– Caecilium 68). But note that politically well-established Romans appeared in this capacity for thetask.

despite their professed contempt

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thecommunity as a whole, andwhowere perceived notasthesupporting speakers of anyindividual prosecutor, butas representatives of thepolis in its entirety.86 Thetwomostimportant procedures of this kindwereeisangelia andapophasis. Theprobolê mayhave been another action of a similar kind: atleast weknowthat a probolê could not proceed in the courts unless the Assembly had first voted in favour of admitting andpassing onthecase. There is, however, disagreement among modern scholars as to whether thetermprobolê wasapplied to theentire procedure from initiation in the Assembly to the final verdict passed by the dikastêria, or whether probolê just applied to the first stage in the Assembly in which the dêmos decided if the case should be referred to a court or dismissed.87 The problems relating to theprobolê are far toocomplex to beaddressed inthepresent context and therefore this procedure will notbeconsidered in the following paragraphs.88 However, in addition to the well-known procedures of eisangelia andapophasis, it was also possible to initiate other types of legal action through the Assembly and/or the boulê. There is evidence to suggest that certain types of apagôgê and endeixis could be brought through the boulê and the Assembly as well as through 34]). the Eleven (Hansen [1976: 32– In all suchcases animportant rôle of theAssembly wasto decide byvoting for 51, 3.5, P.Oxy. 2686), which stipulated that thecase or against a decree (Dein. 1.50– should proceed to a further hearing, andwhich also contained the formal charge 115, Dem. 19.276– 279, Hyp.2. 3– made against the defendant (Lyk. 1.113– 4, 3.29– 30, P.Oxy. 2686.14–15). The noun katacheirotonia or the verb katacheirotonein with the name of the defendant, literally ‘vote down by a show of hands’, is sometimes applied to the Assembly’s decision to admit and pass on a case for a final

86 Inthis connection it is worth noting thepassage inDein. 3.14, a speech delivered bya prosecutorwhohadbeenelected bytheAssembly toactinanapophasis aspartof a team: α ρ γ ἰσ ρ ὰ ὸ χ ν π ειπ μ ε ἀ έν ῖντιμ ρ μ ο η υ ω ο υ έν ς ο ,κ υ ρ α ο δ ο ὺ ςἐσ ὶὑπ εν ςπ τ ὶτ ό τ α ο εγ ςτ ῆ λ ςπ είπ ό λ ε ω ςγ εσ ί θ α α τ ιν π ρ ςτ ῶ νἀνθρώ ο ω η ὺ ν μ νἀ ῖνπ ,ὅ ῶ ν σ ο ερ α ςὑ δ ιή τ ίκ ν α ν ω νκ α ο τ εο ὶπ ε ἱθ ε ςπ ρ ο έ ὶϕ α δ ο ή σ ντιμ α ρ ντού σ ο ρ μ η ω ο α μ τ εγ εν ο σ θ υγ έν ο τ ε α νἅπα ςτ νδῆ ὸ ι, ἑορακό ο νκ ν τ α ακατήγ ὶ ρ ο κ π ε χ ειρικ ν ω λ ό λ ἐ δ π τ ρῶ μ ῖν ο ν α ι. ν ἄ α ῶ ῦ ο ν τ ὶτ π τ ὑ ρ ία ν ὸτ ἐν ὴ ν ω τ ιμ 87 It has long been assumed that the Assembly would pass a preliminary verdict, referred to as

88

katacheirotonia, andfor more than 150 years scholars have been discussing what purpose this preliminary decision served (see Schömann [1847] for anearly illustration of howheated and unpleasant that debate hadalready become). Brewer (1900) and(1901) took issue with theone point onwhich all hispredecessors hadagreed, namely that theAssembly passed a preliminary verdict. Brewer, however, preferred to interpret theproceedings in theAssembly as essentially concerned with thedecision as to whether thecase should beadmitted into theCourts ornot: the rôle of theAssembly wasto grant authorization fortheprosecution. Brewer’s arguments were dismissed with contempt byLipsius ina later edition of Dasattische Recht undRechtsverfahren 15: 177n.2) withthecomment thatBrewer’s ideas didnotmerit detailed refutation; and (1905– subsequent scholars have followed Lipsius inutterly ignoring these articles. Butalthough Brewer’s work is in many ways flawed (as evidenced in his very broad definition of eisangelia, for example), hedoes present some ideas which merit attention anddeserve to befollowed up. Most recently MacDowell (1990: 16) andRowe (1994) have argued that theentire procedure 74) maintains that 131) and(1992: 73– wasdesignated probolê, while E.M. Harris (1989: 130– probolê referred only to the initial stages of the action. Xen. Hell. 1.7.35 tells in favour of MacDowell andRowe.

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hearing (e.g. Dem. 21.2, Dein. 2.20), just as the verb aphienai, ‘to let go’or ‘to acquit’, is used in cases where the Assembly decided that there wasnobasis for a further procedure andthus dismissed the action by voting downthe accusation (e.g. Isokr. 18.22).89 This area of Athenian administration ofjustice is fraught with difficulties, and there is serious disagreement among modern scholars as to howweshould interpret these procedures, andinwhatwaythey were applied.90 Inwhatfollows, however, I shall limit mydiscussion to two questions that have a bearing on all these categories of extraordinary procedure. The first is whether elected/appointed prosecutors were a standard or regular feature in actions initiated through decree, and the second whether such procedures were risk-free for the citizens who chose to participate in

them.

It is generally agreed that teams of prosecutors were appointed bythe Assembly 51 Demosthenes is chaltoconduct apophaseis inthefourth century. InDein. 1.50– lenged to prove that anapophasis hadindeed been brought against the speaker, and the speaker demands that heproduce the decree along with information onthe persons whohadbeen elected as katêgoroi: If indeed younowclaim, youdisgusting animal, that theAreiopagos instigated

an apophasis against me,after it hadcarried outan investigation ontheAssembly’s order, then showthedecree andindicate which menbecame myprosecutors after the apophasis hadtaken place; just as both of these are at hand in the

present case: both the decree according to which theAreiopagos carried out its

89 As far as eisangeliai areconcerned, there is only onesecure attestation of thewordkatacheirotonia being applied to a preliminary hearing which would result in a decision to admit thecase (Hansen [1975: 118] cat. no. 142). As Hansen notes (1975: 44 and 118), katacheirotonia is sometimes used about thefinal verdict passed by the Assembly in eisangeliai heard in that forum. According to Hansen, a decision bytheAssembly to pass onaneisangelia to a dikastêrion‘onlyresulted inan(sic!) decree thatthecase beheard, never ina preliminary verdict’(1975: 44), andthus he dismisses the possibility that katacheirotonia could be used in this context at all. But Hansen’s observation that, in the context of eisangelia to the Assembly, the word katacheirotonia always referred to the final verdict rests ononly twopassages: Lys. 29.2 and Dem. 19.31. This inmyviewprovides aninsufficient basis forsucha generalization. Moreover, the wayin which katacheirotonia wasused in probolai andapophaseis calls for caution. In apophaseis, weknow for certain that the katacheirotonia resulted only in a decree, recording theAssembly’s decision toaccept theAreiopagos’report, topass thecase onto thecourts, and 51, P.Oxy. 2686). Onthis analogy, it ismorethanlikely thatthe toelect prosecutors (Dein. 1.50– Assembly’s decision to ratify andact upona decree proposing aneisangelia andcontaining the 30) could also be representcharges enumerated bythedecree proposer(s) (e.g. Hyp.2.3, 3.29– edas a katacheirotonia. Because theAssembly hadthealternative of rejecting thedecree and throw out the eisangelia if it found the charges untenable, a ratification of the prosecutor’s eisangelia-decree might equally be regarded as a preliminary verdict in favour of the prosecutor’s case, just as their decision to vote down the decree could be represented as anacquittal ϕ ιέ (ἀ ν α ι+ the name of the accused is applied regularly to such decisions). 90 The Hansen-Rhodes controversy ([Hansen 1975], Rhodes [1979], Hansen [1980b], Rhodes 525]) hasnever found a solution. Thediscussion centres onthehistorical origins of [1993: 524– the procedure andonsubstantive issues (i.e. the application of the nomos eisangeltikos). For a recent comment on this particular controversy, see Bearzot (1996).

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investigation, andprosecutors whohave beenelected bya showof hands inthe Assembly, andfrom whomthejudges are nowreceiving information about your crimes.

ϕ ν τ ν ο υ ίν ρ ὲ ῄ μ ια ὸ ἰμ ν ε ,ὦ ρ ς σ η ίο ὺ θ ν ,τ μ ο ῦδή ο υ ρ π οσ τ ά ξ α ν τ α ςζητήσα σ α ν ὴ νπ ο ὶἐμ ερ υ τ ὴ νβ λ ο ῦπ ο σ ιή α σ θ α ϕ ιτ α ὴ νἀπ σ ιν ό , δεῖξ ισ μ α ο ντ ,κ ὸψήϕ α ὶ ρ ο ο ο τ υκατήγ ιγενομ όμ ε τ ίν ςἐγένον η έν ςτ ῆ ϕ ςἀπ ά σ εω ο ς ,ὥ σ ρν π ε ῦ νἀ μ ϕ ό τ ε ρ α γ έγ ο ν ε ,κ ισ α μ ὶψήϕ α κ α ᾽ὃ θ ἐζ ή η β τ σ ἡ ο ή ε ν υ ,κ λ α ὶκατήγ ρ ο ο ιχ ειρ ο ή ᾽ὧ σ ο α ν τ τ υ ,π ο ρ ν ν ο α ςτ ν ο ῦδήμ ῦ ν ο ἱδικασ μ τ α α ή ὶτἀ τ α δ ικ π υ ν θ ά ν ο ν τ α ι. Theimplication is clearly thatelected katêgoroi werea standard feature inthis type of action; andDein. 1.58 provides a strong indication that this feature wasin fact a statutory requirement. It is also widely accepted that prosecutors would be appointed in eisangeliai to theboulê. The useof prosecutors whoparticipated ex officio in such actions is attested in twodecrees. One is IG I3 102 (Hansen [1975: 115– 116] cat. no. 138) which contains guidelines fora preliminary hearing in theboulê. The other is the decree proposed by Andron ([Plut.] Lives of the Ten Orators 833E-F), stipulating theformat of thetrials against Antiphon, Archeptolemos andOnomakles (Hansen [1975: 113– 114] cat. nos. 135– 137). Both decrees contain clauses that assign part of the prosecution to persons acting ex officio while also encouraging individual volunteers to addtheir contributions.91 Because thetask of undertaking theprosecution incourt wasassigned to teams of speakers acting asthevoices of thecommunity, it would also bepossible forsuch actions to proceed to the final hearing, even if the person whohadfirst initiated themdiedbefore thehearing orwasforced, bribed, orotherwise persuaded todesert 50 the the case. We know that this didindeed happen at least once. In Ant. 6.49– speaker relates howhis eisangeliai to the boulê against a number of magistrates proceeded, in spite of the fact that the speaker himself hadbeen outmanoeuvred through a charge for homicide which barred him from all activities in the public sphere.92

Finally, we have evidence for elected katêgoroi participating in an endeixis (Dem. 25.13), according toHansen brought viatheAssembly ([1976: 32]and[1976: 142] cat. no.32). Hansen’s reconstruction ofthecase asanendeixis initiated in 141– theAssembly depends entirely onDem. 25.13, where the speaker recounts howhe hadbeenpressurized into standing forelection asa prosecutor. Dem. 25.13, inturn, provides the only attestation of elected prosecutors participating in such actions, andprecisely this feature hascontributed to the suspicion among modern scholars that the speech is a forgery. Thus, Hansen’s case might at first appear to rest on a circular argument, were it not for the fact that other sources provide further examples of endeixeis/apagôgai that hadbeen initiated in this fashion (see the list in Hansen [1976: 32]). Asfar as theuseof elected prosecutors is concerned, Hansen suggests (1976: 146) that thepractice insuchprocedures wasaninnovation that had followed in the wake of the institution of apophasis in the mid-fourth century.

91 De Bruyn (1995: 106–107) argues that the procedure in IG I3 102 wasanapophasis, but her argument rests entirely ona very dubious restoration of thetext of thedecree. 92 See also Ant. 6.36.

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That Hansen preferred toregard theelected prosecutors asaninnovation, which spread from apophaseis to other actions after the middle of the fourth century, is hardly surprising. For, unlike most of his predecessors, Hansen (1975: 31– 33) insisted thateisangeliai involved elected prosecutors onlyif theywere initiated inthe boulê, while eisangeliai totheAssembly always hadtobepleaded bythevolunteer who had initiated the action. According to Hansen, the latter type of eisangelia involved no elected prosecutors at all. Asfaraselected prosecutors areconcerned, theonlyclear evidence wehave for their participation in eisangeliai to the Assembly is Plut. Perikles 10.6 (cf. Kimon 14.5). Hansen (1975: 31)dismisses Plutarch’s evidence asanecdotal andinanycase pre-Ephialtean. Ontheother hand, anargument fromsilence totheeffect thatelected prosecutors cannot have participated insuchactions, because wehave nofirm attestation of them, carries only limited weight. First, in twenty-seven cases out of the fifty-nine eisangeliai to the Assembly heard inthefourth century wedonotknoweventhenames of anyof theprosecutors involved.93 Second, in the majority of cases where the names of prosecutors are known, they are referred to as katêgoroi, or the cognate verb katêgorein is used.94 As pointed out in Section 2b of the present chapter, the noun katêgoros andits cognate verb do not allow any inferences whatsoever regarding the formal legal position of a prosecutor; andas a term katêgoros could be applied equally well to elected prosecutors whopleaded forexample inapophaseis (e.g. Dein. 2.6) andto supporting katêgoroi who assisted in public trials initiated by individual citizens (e.g. And. 1.92). However, in addition to theargument from silence, another point might be adduced in support of Hansen’s contention, namely that theinitiator of aneisangelia hadto assume a limited variant of the prosecutor’s risk. While he would not be penalized for obtaining less than 20% of the votes until ca. 330, he would incur a fine of a thousand drachmai if he withdrew the eisangelia. More importantly, it is widely held that after ca. 330 a citizen whohadinitiated an eisangelia, andwho failed togarner therequired number of votes, would indeed bepenalized witha fine as theperson responsible fora frivolous prosecution. This maybe taken to suggest that the overall responsibility for pleading the case would invariably have rested with a single private citizen, i.e. the citizen whohadinitiated the action. That, in turn, mayindicate that the pleading in eisangeliai to the Assembly wasnot conducted by teams of elected prosecutors, andthat this procedure differed markedly from apophaseis andeisangeliai to the boulê in that respect. There canbe nodoubt thateisangelia totheAssembly wasdifferent fromother types of public action in regard totheprosecutor’s risk. There is also general agreement among scholars that eisangelia before ca. 330 wasa type of procedure that entailed nopersonal risk fortheperson whopleaded thecase. That is thecomplaint of Lykophron (Hyp. 2.12) who argues that his opponent, Ariston, had chosen this

93

108, 115, 116, 117, Hansen (1975) cat. nos. 73, 74, 75, 76, 77, 78, 79, 85, 86, 87, 88, 89, 103–

118, 122, 123, 125, 127, 130.

94 Hansen (1975) cat. nos. 68, 80, 81, 82, 83, 84, 90, 91, 92, 93, 94, 95, 96, 100, 101, 102, 112, 113, 120 (for theaction against Hegemon see below in thecurrent section), 121, 126, 128.

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procedure rather thana more appropriate graphê, because eisangelia wasrisk-free.95 Likewise, according to communis opinio, a reform of the eisangelia procedure introduced a penalty onveryunsuccessful prosecutors inca. 330, presumably because theprocedure hadbeen abused.96 Theevidence for this reform is first andforemost Dem. 18.250, from which it hasbeeninferred that, bythetime whenDem. 18wasdelivered (330), thestatutory risk of a thousand drachmai fine fornotobtaining 20%ofthevote hadbeenimposed ontheprosecutor. This is supported bya quotation fromTheophrastos preserved in 53, and Harp. s.v. εἰσα Poll. 8.52– γ ε γ λ ία in which it is claimed that prosecutors were fined if they received less than 20% of the votes, butthat they didnotincur atimia. Thepassages inthelexicographers contain noindication of thedate of the reform, except that the completion of Theophrastos’ Nomoi, from which at least Pollux hadderived hisinformation, provides uswitha terminus ante quem. Dem. 18.250 is usually cited as evidence for the year 330 as a terminus ante quem that is considerably earlier than the terminus ante quem provided by Theophrastos’Nomoi. However, oncloser inspection this passage does notinfact prove that the Athenians had imposed a new rule that the prosecutor would be liable to a fine fornotobtaining 20%of thevote bythetime whenDem. 18wasdelivered. All wearetold is thatwhena number of eisangeliai werebrought against Demosthenes after thebattle of Chaironeia hewasconsistently acquitted bythejudges, who‘did ϕ ω ν notgrant theprosecutors the[fifth?] partofthevotes’(κ τ α ο ὶτ ή ῖς μ ο έρ ὸ ςτ ν ῶ ψ ). Butwhile this passage maytell usthattheprosecutors ετ εδ ο τ ίδ ε ο ὐμ κ ο δ ιώ υ ιν σ whobrought these actions hadfailed miserably intheir attempts to secure theconviction of Demosthenes, it does not in anywayprove that they hadincurred any penalties for failing to obtain 20%of thevotes. There is nomention whatsoever of fines, andtheexpression neednotinfact meananymore than ‘theprosecutors kept suffering crushing defeats’.97 It is notatallsurprising thatthepractice of penalizing prosecutors whofailed to obtain therequired votes inordinary graphai should have given rise to a more general usage of the20%threshold asa graphic measurement of thescale of a prosecutor’s defeat, even insuch actions where penalties were notimposed. Thus, in Dein. 1.54 weare told that in a number of apophaseis the Areiopagos ‘didnotobtain a ). It is most ω ν ϕ ετ νψήϕ ῶ η ο έρ π ετ είλ ςο τ νμ ο ὐμ ὸπ έμ fifth part of the votes’ (τ unlikely that this means that the Areiopagos was fined; it probably means only that onthese occasions the prosecutions failed in a most spectacular way. Thus, Dem. 18.250 doesnotallow theconclusion thatthereform imposing a risk ontheprosecutorwhofailed toobtain 20%of thevotes wasmadebefore 330. If wereturn totheevidence of thelexicographers, Harpokration reports that ‘the prosecutor is not punished if he fails to secure a conviction, except if he does not

47). 95 Thesame applied to eisangelia formaltreatment of orphans andepiklêroi (Isaios 3.46– 53), Hansen 122), Harrison (1971: 52– 96 Wyse (1904: 330), Körte (1923: 231), Colin (1946: 121– 31). (1975: 30–

97 pace Körte (1923: 231): O bwohl hier nicht ausdrücklich gesagt wird, daßdie Kläger, die den fünften Teil derStimmen‘ nicht erhielten, einer Geldstrafe unterlagen, wirdjeder ausderErwähnungdesStimmenbruchteils zunächst schließen, daßes fürdie Kläger vonBedeutung war.’

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receive a fifth part of the votes. For in that case he pays a thousand [drachmai]. Formerly, they used to incur even greater penalties’ (ὁ δ ὲδιώ κ ω ν , ἐὰ νμ ὴἕλ ῃ , ϕ μ ιο ῦ ῃτ μ ο τ ω μ ὐ δ α ν ὴ ὲ νζη ι, π ετα λ ὴ ν ή ἐὰ ο έρ β ᾽μ λ ν τ ςτ ά ὸε ῶ ν ψ ρχιλ ὰ ό τ εγ ία ς · ὸδ ὲπ α λ ε ι· τ α τ ίν ιὸ ἐκ νκ ειζό α ὶμ ν ω ά ). The last statement ςἐκολ τ ο ζ ο ν may be taken to suggest that Harpokration refers toa reform which relaxed a setof previous rules applying to eisangeliai; andthat in turn might cast doubt on the value of the passage as a whole. Alternatively, Harpokration’s reference to τ ὸπ α λ ιό α , ‘theolddays’, maybe ν interpreted as an echo of a set of ideological justifications voiced in connection with thereform in thelate fourth century. That is, theAthenians, as wastheir wont, mayhave represented their innovation of the procedure as a return to thepatrios politeia.98 Nomatter which interpretation is preferred, the reform, which curtailed the use of eisangelia, may have been made at any time during the last three decades of thefourth century. It cannot beruled outthat it wasconnected, forexample, with the wider constitutional reforms that followed after the Athenian defeat in the Lamian War in 322, by which democracy was replaced with a moderate form of oligarchy, hailed as a reintroduction of thepatrios politeia by its supporters.99 The entire reconstruction of the development rests onpassages in late lexicographers whopresumably derived their information fromTheophrastos’Nomoi Book 4 (cf. Lex. Cant. s.v. εἰσαγ ). Noneof thelexicographers in ν γ ο ελ ρ ία τ ιμ ό σ ands.v. π question cites anAttic orator insupport of hisinformation onthereform, andthere is no secure evidence in anyof oursurviving speeches to confirm that the reform wasnecessarily made in theperiod between 330 and322. If it is accepted that, even after 330, noone individual katêgoros would have beenheldpersonally liable if theprosecution failed togarner therequired number of votes in an eisangelia, the following reconstruction is possible. There was a risk connected with eisangeliai to the Assembly and indeed with other actions initiated intheAssembly andtheboulê; butit wasa risk thatwasqualitatively very different from the risks that applied in ordinary public actions. A denunciation had to be followed up by a decree, andthe decree hadto be ratified by the Assembly before the case could be referred to thecourts for a hearing. As far as eisangeliai to the Assembly areconcerned, thedecree thatwarranted a further hearing is mentioned in nine of theproceedings registered inHansen’s catalogue, of which someconcerned several prosecutions to be brought against different individuals (1975).100 Wemust assume that there would be anindividual decree-proposer whose name wasentered on the decree. A decree proposer would be open to prosecution by graphê paranomôn, andthat risk wasa significant one.101

98 I amgrateful toM.H.Hansen forhaving suggested this interpretation. 99 Foradiscussion of thereforms connected withtheoligarchic return tothe‘patrios politeia’, see 46). 61), and more generally Habicht (1997: 44– Lehmann (1997: 58– 30), 111, 119, 124 (with Hyp. 3.30 72, 99, 109 (with Hyp. 3.29– 42, 62, 65, 69– 100 Cat. nos. 6, 13– γ ρ ά ψ α ιεἰςτ γ ). ελ γ ν ία ν ὴ εἰσ α 101 Inhisspeech against Leokrates, Lykourgos complains that things have come to sucha pass that ν ὸ ‘the one whotakes a personal risk andwhoincurs hatred for the sake of the community’(τ ιλ ο ) is regarded as a busybody (ϕ ν ο μ εν ό ν α θ π εχ νἀ ῶ νκοιν τ ακ α ῶ ν ρτ εύ ο ὶὑ : κινδυν π ὲ ἰδ ίᾳ

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Weknowatleast three instances where graphai paranomôn were threatened or brought against the person whohadproposed a decree stipulating further legal action after a denunciation totheAssembly ortheboulê. Dein. 2.12 andhyp.Dem.25, 2 refer to a graphê paranomôn against Aristogeiton. Following Pythangelos’ and 1– Skaphon’s arrest of Hierokles, whowas handed over to the prytaneis andwhose case wassubsequently referred totheAssembly, Aristogeiton allegedly proposed a decree, prescribing that Hierokles be summarily executed if he confessed, andput on trial if he denied his guilt. Aristogeiton wassubsequently convicted in a graphê paranomôn for this proposal (Hansen [1974: 37] cat. no. 29). And. 1.17 and22 relate to the graphê paranomôn brought by Andokides’ father against Speusippos, whoas a bouleutês hadproposed a decree stipulating a court hearing after themênysis brought bythe slave Lydos to theboulê. Speusippos was convicted (Hansen [1974: 28] cat. no. 1). Andfinally, Xen. Hell. 1.7.12 reports the unsuccessful challenge of the decree proposed by Kallixenos stipulating the terms 29] cat. no. 3). If we for trying the generals after Arginousai (Hansen [1974: 28– look at the initiator’s risk from that angle, it is also conceivable that more than one person could assume responsibility for prescribing the hearing, for it was possible for others to propose riders to thedecrees (Hansen [1975: 71] cat. no.6; Hyp. 2.3 maybe another example of this. See thediscussion in Section 2b above). If we accept that the risk connected with initiating actions through the boulê and the Assembly would lie with the decree proposer rather than with the people who pleaded as katêgoroi in the action, and that the risk took the form of liability to a graphê paranomôn rather than to statutory fines, then that also suggests that the teams of elected prosecutors whopleaded in such actions, butwhohadnotthemselves proposed that theaction bebrought, would have beenunder nopersonal risk. It still remains, however, to discuss Hansen’s proposition that the person responsible for initiating the eisangelia (and, presumably, for acting as decree proposer) wasalways the prosecutor whocarried legal responsibility for pleading the case in court. Hiscontention that a single prosecutor would incur a statutory fine if he did not plead in the action obviously constitutes an important obstacle to the reconstruction outlined above. As mentioned earlier, Hansen’s argument against participation byelected katêgoroi ineisangeliai totheAssembly rests inpart onthat assumption. However, his generalization is made from five empirical examples of individuals who hadproposed decrees in eisangeliai to the Assembly, andwho also addressed the court. The first is the eisangelia brought by Hypereides against Philokrates of Hagnous (Hansen [1975: 102] cat. no. 109), the second is the eisangelia initiated by Polyeuktos against Euxenippos for which it is known that Polyeuktos himself had proposed the decree that formed the basis for the action (Hyp. 3.30, Hansen [1975: 109] cat. no. 124). Lykourgos’ prosecution of Leokrates (Hansen [1975: 108] cat. no. 121) also appears to have been based ona decree proposed by μ ν , 1.3). There is nospecific mention here of a thousand drachmai fine. Asthe initiator ο α γ ρ ά π of the eisangelia against Leokrates (Lyk. 1.137), Lykourgos would have been at personal risk in several ways, oneof which wasthata graphê paranomôn might be brought against himfor his proposal that the eisangelia be brought.

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Lykourgos himself (Lyk. 1.137), and the fourth example is the eisangelia brought by Ariston against Lykophron (Hyp. 2.3, Hansen [1975: 106– 107] cat. no. 119). The fifth is the eisangelia allegedly brought by Aristogeiton against Hegemon (Hansen [1975: 107– 108] cat. no. 120). The first four examples tell us only that in some eisangeliai (perhaps the majority) the court would be addressed bytheperson whohadbeen responsible for proposing thattheeisangelia beheard inthefirst place. Wecannot assume onthatbasis that this was an absolute requirement. In any case, it is abundantly clear from Hansen’s cat. nos. 119 and 124 that theinitiator of aneisangelia would notnecessarily be theonly katêgoros involved. It is perfectly conceivable that hecould have been assisted by katêgoroi whohadbeen elected by the Assembly. Andnoevidence is provided by these examples to theeffect that the prosecutors involved would have been fined if they pulled outof the eisangeliai. The fifth example provides the only positive evidence in support of Hansen’s claim that a denunciator would always belegally responsible forpleading thecase, and that he would incur the normal statutory penalty of a thousand drachmai if he failed toappear asprosecutor whenthecase reached thecourt. This is theeisangelia brought by Aristogeiton against Hegemon. It is commonly assumed that Aristogeiton haddropped this action andthathewasfined a thousand drachmai asa result. The evidence for this eisangelia is found in Dem. 25.47; butHansen’s argument depends first andforemost ona line inthehypothesis toDem.25 which heinterprets asrelating tothesameaction.102 It isthiscase which leads Hansen tobelieve thatthe denunciator was always legally responsible for pleading the eisangelia in court

(1975: 31).

) π έδ τ ο ο It is true that inDem. 25.47 Aristogeiton is accused of having ‘sold’(ἀ aneisangelia against Hegemon. This maymeanthatAristogeiton hadindeed dropped the action –butit canequally well be interpreted as anallegation that Aristogeiton hadsabotaged thecase, orthathehadbeenbribed nottoparticipate intheprosecution asa (syn)katêgoros, ashemight originally have intended (see further Chapter 5: 2). There is, on the other hand, not a hint in this passage that Aristogeiton hadbeen punished for pulling out of the case. 3 mayatfirst sight suggest that AristoTheevidence found inhyp. Dem.25, 2– geiton wasin fact punished. Theproblem is that if wetrust this passage, it is clear that Aristogeiton hadnot incurred the penalty for dropping the eisangelia. For we are told that Aristogeiton had been bribed to betray an (unspecified) public action against Hegemon andhadbeen fined a thousand drachmai for nothaving obtained a ρ α γ μ ψ ά εν μ ο ν α ο μ ο ή εν ὸ ςτ γ ν ςκ ῶ α ἀ α π ο ὶτ δ ό ὸ ν ἀ γ ᾽Ἡ ειθ π fifth part of the votes (ἔ ϕ λ εχιλ ϕ ω ν ὦ ία ή ). ς ν ν ὼ β τ ψ ῶ ὴ λ α ρ ο ςμ μ έ π τ π έμ ο ν Unless wefollow Taylor indeleting theproblematic part ‘nothaving obtained a fifth part of the votes’from the text altogether (which in myopinion would detract considerably from the value of the passage as a whole), there are two alternative inferences that canbe madefromthis passage. Oneis that there wasa statutory risk connected with not obtaining 20% of the votes in eisangeliai in 331 when the trial

3 wasconnected withthe 102 Thecase against Hegemon mentioned inthehypothesis toDem.25, 2– 117). eisangelia mentioned in Dem. 25.47 already by Schaefer (1858: Beil. IV, 115–

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against Hegemon took place. If so, Aristogeiton must have taken theeisangelia to court, where he mayperhaps have sabotaged the prosecution deliberately in return for a bribe, andin that case the passage does notprove that aninitiator of aneisangelia could be fined for dropping the action. Alternatively, theaction mentioned 3 wasin fact notaneisangelia, butanordinary graphê, inwhich in hyp. Dem. 25, 2– case Aristogeiton hadtaken part intwopublic actions against Hegemon. Thelatter solution is, inmyopinion, themorelikely, andit is supported to some extent by the use of the middle participle γ ρ α μ ψ ά εν ο ςin the hypothesis.103 In any case, it is far from inconceivable that Aristogeiton may have been involved as katêgoros orsynkatêgoros inmorethanonepublic action against Hegemon, i.e. ina graphê which carried the normal statutory risk as well as the eisangelia mentioned inDem. 25.47. After all, Aristogeiton is well known forhisrepeated involvement in public actions against particular individuals, andin Dem. 25.37 thespeaker claims that he himself hadbeen at the receiving endof nofewer than seven graphai and twoeuthynai inwhich Aristogeiton hadbeen involved as prosecutor. The problematic example of Aristogeiton’s eisangelia provides the only basis for Hansen’s assumption that the person responsible for the original denunciation was compelled to act as katêgoros, and it is the only piece of evidence which suggests that the person whohadinitiated an eisangelia would be liable to the fine of a thousand drachmai if hedidnotplead intheaction. Therest of Hansen’s case isbased ontheargument afortiori thatsince ordinary graphai carried statutory risks to prevent prosecutors from dropping their actions, theAthenians musthave invented similar safeguards toensure thesuccessful hearingof eisangeliai. Foreisangeliai bydefinition concerned offences such as treason andother similar threats to theconstitution andeventothesurvival of thecommunity as a whole. However, in apophaseis andeisangeliai to the boulê the guarantee that the action would reach the court wasprovided precisely by theelection of prosecutors whowould all have taken onthetask inpublic, andwhopresumably would find it difficult to goback ontheir promise andtheir election. Asfar asprosecutors elected by the Assembly are concerned, it mayeven have been possible to punish them for having broken their promise to the dêmos, anoffence, in fact, that might make them liable to prosecution under the nomos eisangeltikos.104 Moreover, as ϕ ω is used with reference to eisangeliai to the Ep103 Note, however, that the middle form of γρά onymous Archon inIsaios 11.31, aspointed outbyHansen (1975: 107). 104 That citizens elected by the Assembly to carry out specific tasks or duties were not allowed to go back ontheir election, except under special circumstances confirmed byanoath of exômosia, maybe inferred from Aisch. 2.95. Here Aischines refers to a law, a clause of which stipulates thata citizen cannot gobackona cheirotonia madeintheAssembly byswearing theoath ῇ λ υ ο ῇβ ντ ςἐ ία μ ο υχειροτον ᾷ τ ὰ μ ο κτ ο ῦδή ςἐ ςἐ ρὁνό ὰ δ ὐ ὲγ of exômosia in the boulê: ο ι; andthere is no reason to assume that the obligation to abide by one’s election α θ σ υ ν μ ἐξ ό applied to ambassadors only. Wecanbe reasonably sure that there were some sanctions available against citizens whodefaulted; the procedures by which such sanctions could be imposed arelessclear, however. Itmayhavebeenpossible toapply theclause inthenomos eisangeltikos concerning promises made in the Assembly: it is used as an argument from analogy against Timotheos, who, according to Apollodoros, hadpromised in the Assembly to bring a graphê 67). Theaction xenias against Iphikrates, andwhofailed to follow uphispromise (Dem. 49.66–

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wasnoted in the introduction to this section, if one of the prosecutors in such an action died or wasforced out, e.g. by a charge for homicide, the case would still have proceeded: thefact that multiple elected prosecutors were involved inthecase would have maximized thechances that theaction would reach thecourts. If Hansen’s argument afortiori is accepted, namely thattheAthenians would be more keen on guaranteeing the hearing of eisangeliai than of ordinary graphai, it seems very oddindeed that eisangeliai totheAssembly would differ fromtheother

known types of procedure initiated through decree in the Assembly or the boulê precisely bynothaving this safety-measure associated with theprocedure. In fact, the ‘completion rate’of legal actions initiated as extraordinary procedures in Assembly or boulê is so high as to be suggestive. Wehave noevidence for dropped apophaseis or eisangeliai to the boulê.105 As for eisangeliai to the Assembly, we know more actual examples of this procedure than of any other type of Athenian public action, andnotoneof them is known withcertainty to have been abandoned once theAssembly hadvoted infavour of a further hearing. Hansen (1975) registered 130 possible eisangeliai eis tondêmon, andassumed that four of these were dropped: cat. nos. 110, 120, 128, and129. In thecase of cat. no. 110, wecannot be sure that the action ever reached decree stage in the Assembly.106 The same is true of cat. no. 129.107 Cat. no. 120, Aristogeiton’s case against Hegemon, hasbeendiscussed above; andthere isnoreason tobelieve thattheeisangelia wasdropped. As for cat. no. 128, ‘having stirred upthe eisangelia against ὴ νκ μ α η Demokles, where did he take it?’(Dem. 25.47) (τ τ ο ὰ κ Δ λ έο γ ε υ γ ςεἰσα ;) again suggests that Aristogeiton had sabotaged the λ ία εψ εν νἀ ν α σ είσ ῖἔτρ α ο ςπ case, butnotnecessarily that it wasdropped (see further Chapter 5: 2). On the other hand, there is no reason whyit should be assumed that all eisangeliai were necessarily conducted in precisely the same wayevery single time the procedure wasemployed. Because theformat of thetrial wasdecided bydecree, it is possible that thedecree proposer could have inserted oromitted a clause relating to the appointment of prosecutors at hisdiscretion. There is reason to believe that the decrees stipulating the format of individual eisangeliai to the boulê andof apophaseis contained specific clauses prescribing whowere to plead in the actions, as for example the decree prescribing the proceedings to be adopted in the trials of 115] cat. nos. 135– Antiphon, Archeptolemos, andOnomakles (Hansen [1975: 113– 137). By analogy, it may be suggested that in decrees relating to eisangeliai to the

ofprobolê could also beemployed against citizens whohadpromised intheAssembly toundertake a particular task butfailed to carry it out(Ath. Pol. 43.5). 105 The exception is a formal decision to drop the eisangelia against Timarchos (Hansen [1975: 119] cat. no. 143) that was taken by the boulê (Aisch. 1.112). ι α θ λ εσ έλ γ γ έλ λ ν α ω εἰσ 106 Aischines says only that Demosthenes wasabout to be impeached (μ , 3.223). ῦ ο ᾽ἐμ π ὑ

107 Cat. no. 129 is Demosthenes’eisangelia against Kallimedon, referred to inDein. 1.94. Demoμ εν ο ) before thedecree prescribing thehearing ύ ο ν ς α ιρ sthenes mayhave called off thecase (ἀ ϕ μ ω ν ὲν ν ό ο ρ ὐ ρ δ γ ά α έ π ν ,α ῦ ν ὶτού τ ο τ ω ἰτ α ία ᾽ἕν εκ ερ α ὶπ ςδ wasratified bytheAssembly (κ ευ ά κ νin Dein. 1.95 mayapply both to this case andto the subsequent σ ω α ζ ρ α ν ο ςπ τ ο ςἀγῶ reports concerning

thedockyards).

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Assembly similar prescriptions could be included, if thedecree proposer perceived the formal appointment of prosecutors to be a desirable option. That the person whoproposed the decree would have considerable room for manœ uvre, andthat hemight even prescribe measures that mayappear highly unorthodox is clear, for example, from the decree moved by Drakontides, whoproposed that aneisangelia against Perikles wasto be heard onthe Akropolis (Hansen [1975: 71– 72] cat. no.6). This suggestion wasapparently felt to betoocontroversial for one of his fellow citizens, Hagnon, whoremoved this particular clause by a corrective rider to Drakontides’decree. Another example is thedecree that stipulatedtheterms of theeisangelia brought against thedeadPhrynichos (Hansen [1975: 83] cat. no. 62). This decree included a clause to the effect that any defence 82– synêgoroi pleading for Phrynichos’acquittal should incur the same penalty as Phrynichos in case of conviction. Thedecree is referred to byLykourgos inhis speech against Leokrates (1.114), andLykourgos has the text read out in support of his point. An unparalleled andstriking provision, perhaps; butentirely possible as long as the Assembly agreed that it wasappropriate. Theinventiveness of thedecree proposer would of course bechecked in various ways. Undoubtedly, in eisangeliai to the Assembly the formal charge on which the action was based had to be one of those listed in the nomos eisangeltikos.108 The attested graphai paranomôn, allegedly challenging decrees which prescribed highly unorthodox manners of prosecution, also showthatthedecree proposer would have to be careful notto go beyond what would be perceived as reasonable andlawful. However, there wasa certain flexibility in such procedures andconsiderable scope for variation, so long as certain basic rules were kept. If thedecrees arerecognized ascentral inprescribing theformat of individual trials, this mayexplain theapparent conflicts andinconsistencies inourmaterial as a whole andbring thevarious extraordinary procedures into line with each other. I suggest that elected prosecutors could participate ineisangeliai totheAssembly, andthat they as well astheelected prosecutors whoparticipated inapophaseis andeisangeliai to the boulê would not be liable to the conventional prosecutor’s risk. Wecannot tell if elected prosecutors were a standard feature ineachandevery eisangelia heard by the Assembly and the courts. The high number of eisangeliai that did reach the courts, however, indicates that special measures did apply, and elected prosecutors whowould provide thebest guarantee that theactions would be heard maywell have been a regular feature.

108 This is clear notleast from Ariston’s application of thecharge of ‘subversion of thedemocracy’ to the action brought against Lykophron for having slept with a woman against the laws (Hyp. 2.12).

Chapter

4: The Rôles ofAthenian Synêgoroi

In Chapter 2 theevidence fortheAthenian useof synêgoroi incourt wassurveyed. Inthat chapter it wasconcluded thattheuseof supporting speakers waswidespread,

especially in public actions –at least among litigants belonging to the upper strata of society. The questions that will receive attention in the present chapter are what suchsynêgoroi actually did, howthey represented their ownrôle inthecourt room,

and,mostimportant, howtheyrepresented their personal ties withthelitigants whom they were supporting. It has been noted often enough that the support delivered by a synêgoros could take many different forms.1 Therange of theevidence canbe suggested by the following data. At the upper endof the scale wefind litigants such as Apollodoros who, inhisspeech against Neaira, does themainpleading andwhose rôle seems to be indistinguishable from that of a main prosecutor, apart from the fact that the indictment didnotcarry his name, butthat of his brother-in-law, Theomnestos. It maybeassumed thatinmanyofthose cases where a preserved synêgoria contains a continuous and detailed diêgêsis-section, the main litigant had restricted his own

contribution to aprooimion andto introducing hissynêgoros orsynêgoroi.2 In addition to [Dem.] 59 wehave tenother examples of such synêgoriai, namely Lys. 13 (public prosecution); Dem. 18 (public defence); Lys. 32, Isaios 6, Isokr. 21, Dem. 36, [Dem.] 44 (private prosecution); Isaios 2, Dem.29 (private defence); [Dem.] 43 (diadikasia). It should be noted that eight of these speeches were delivered in private suits. Isaios 12 is probably a further example: it appears from the paraphrase in Dion. Hal. Isaios 16 that the preserved part of the synêgoria waspreceded by a detailed narrative corroborated bywitnesses. But we also find synêgoroi who contribute only a few paragraphs, such as the speaker of Lys. 15wholimits hiscontribution toanattack onthose generals whoare expected to act as synêgoroi in support of the defendant, Alkibiades. Some synêgoroi present witnesses ontheir ownandcontribute further arguments pertaining to the question of guilt or innocence,3 while others concentrate on the question of the penalty or compensation to be paid bythedefendant, thus delivering speeches which focus on auxêsis or meiôsis/tapeinôsis. In these speeches the speakers all jumpstraight fromtheprooimion into thepistis section, orsometimes evendirectly

1

2 3

14), Lavency (1964: 88), 206), (1930: 8– Bonner (1905: 83), Bonner and Smith (1927: 205– 426). Kennedy (1968: 422– See thediscussion inChapter 2: 3. 13 of our 25 preserved synêgoriai contain statements which are corroborated by witnesses brought forward bythesynêgoros: Lys. 13, [Dem.] 59 (public prosecution); [Lys.] 20, Dem. 18 (public defence); Lys. 32, Isaios 6, Dem. 36 (paragraphê), [44] (private prosecution); Isaios 2, 12, Dem. 29, 34 (paragraphê) (private defence); [Dem.] 43 (diadikasia), pace Bonner (1905: 83). Furthermore, twoof thesix speeches delivered byelected prosecutors contain statements corroborated by witnesses (Dem. 25 andDein. 1).

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from theprooimion to theepilogos. And, as mentioned inChapter 2, some speakers even leave outtheprooimion altogether. According to Aristotle Rhet. 1419b, auxêsis and tapeinôsis together make up oneof thefourelements constituting anepilogos. It hasbeennoted asa characteristic of manyof theshorter synêgoriai that they resemble theepilogos-sections of the speeches delivered by legal protagonists.4 Obviously, synêgoroi for the prosecutor will attempt to demonstrate that a given offence is of the utmost gravity anddeserves the most severe penalty, while synêgoroi forthedefence tryto adduce arguments in favour of acquittal5 orarguments that might induce thejudges to impose a lenient sentence.6 Ontheother hand, it will notdotoaccept Nouhaud’s claim (1990: xii) that ‘the second speech (deuterologia) nolonger hasit as its principal function to produce argument, butto sustain the anger of thejudges in order to secure conviction’.7 It will be argued towards the end of Section 2 of this chapter that it was a very important task, particularly of a synêgoros whoprosecuted in a public action, to adduce specific arguments related to the case, and that his ability to contribute information about thedefendant andhiscase wasapparently seenas adequate justification for his appearance in court. Thus, at first sight it appears to be difficult to come upwith a uniform description of what Athenian synêgoroi actually did, andof what they were supposed or expected to do. In this chapter it will be demonstrated that the task of a synêgoros

differed markedly according to whether he acted in support of a prosecutor or a defendant, andwhether theaction waspublic orprivate. This may seem a rather trivial observation; yet modern scholars have notpaid muchattention to thedifferent rhetorical strategies employed byvarious categories 424) went nofurther in hisclassification of synof synêgoroi. Kennedy (1968: 422– êgoriai than to distinguish between speeches delivered onbehalf of litigants who were notallowed to address thecourt themselves (women, minors, slaves, andatimoi); speeches delivered in support of litigants whohadalready addressed the court with a speech of their own; and, finally, speeches delivered by synêgoroi whowere defacto the real party to a given case (e.g. Demosthenes in the trial of Ktesiphon, andApollodoros in the case against Neaira). Kennedy’s distinctions are important, andthe relationship between synêgoroi and‘straw men’will be dealt with later in Chapter 5: 2. In this chapter, however, it will be argued that thetype of procedure employed wasanother factor which hadanimportant bearing ontherhetorical strategies employed by synêgoroi, and, further, that it was absolutely crucial for the contents of a synêgoria whether thespeech wasdelivered insupport of a prosecutor orof a defendant.

4 5

6 7

Lavency (1964: 88), Nouhaud (1990: xii-xiii). e.g. Hyp. 3, [Lys.] 20. Wehave noextant example of this intheactual law-court speeches, butthere areretrospective accounts of Athenian trials which maybe taken to indicate that some defence synêgoroi were 8). expected to take upthis line of argument (e.g. [Dem.] 59.6– le second discours (deuterologia) n’a plus pour fonction principale d’apporter desarguments ‘ (...) desusciter (...) la colère desjuges pouremporter le verdict’. mais

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125

All advocates bore testimony to the good character of the principal’ was the ‘ made by Bonner (1927: 206), andthe parallel between a modern character claim witness andan Athenian synêgoros has been accepted andrepeated by most later scholars.8 The observation made in Chapter 2 that the silent witness andthe articulate synêgoros were twodistinct types of supporter does notrule outthe functional similarity of witnesses and synêgoroi noted by Humphreys (1985: 336– 337). According to her, synêgoroi andwitnesses alike served primarily to enhance the prestige of the main litigants. Thus, they maybe held to have resembled the supporters in the trial on the shield of Achilles who rally round each litigant, cheering him along (Horn. Il. 18.502). Furthermore, most modern scholars agree that it wasseen as desirable (or at least as the safest strategy) that synêgoroi (re)presented themselves aseither relatives orpersonal friends of thelitigants whomthey hadagreed to support.9

In his discussion of this issue, Lavency (1964: 85) quotes the following passage from Rhet. adAlex. (1442b):

If youare speaking onbehalf of somebody else, youmustsaythatyouare acting as a synêgoros either because offriendship or enmity towards the opponent or because you were present at the event or because of the common good or because the one on whose behalf youare speaking is alone [sc. friendless] and is suffering injustice.

ῃ ϕ ιλ ν ς , ῥητέο ,ὡ ρ γ ία ε ο ρ ῖςἢ η δ ςδ ιὰ ι᾽ἔχθ ν α έγ λ ν σ τ υ υ ο ο ν λ λ ῦ δ ν ἐὰ ὲὑ π ὲρἄ γ μ ρ α εν α σ ιπ γ ῷ ϕ ῷ ρ έσ α ά κ ο σ ῖςπ μ τ θ ἢ ὸτ ο δ δ ιὰ ιὰ ἀ ν τ ιδ ύ ιν α τ ίκ ιἢ ὸτ ο υ ο ν ερ ἢδ ιὰ τ ὸἔρη μ ο νεἶν α ικ α ὶἀ γ ρ η δ ο σ ικ ε υ ν ῖς εῖσ θ α ι, ᾧ .

Onthe basis of this passage, further corroborated by references to actual law-court speeches, Lavency proceeds to argue 1) that synêgoroi normally state the nature of their link with the main litigant, 2) that the synêgoria serves as a demonstration that themain litigant deserves goodwill andesteem, and3) that Athenian synêgoria has its root in ‘the duty of solidarity which bound the members of an Athenian association’. It is not surprising that Lavency ascribes so much importance to the (alleged) relationship between the synêgoros and the litigant who is receiving his support. The Athenian insistence on a tie of solidarity between litigant and his vocal supporter is, according to Lavency, part of the reason whylogography could coexist with ‘advocacy’inAthens: ‘[l]ogography is always represented as a type of technical assistance which, being practiced by a rhetorical expert, is sold to any litigant; synêgoria, by contrast, remains firmly inscribed in the social context described above, as a proof of the solidarity provided to the litigant by the group which surrounds andprotects him.’ (1964: 89)10 According to Lavency, a citizen who was 8 See Chapter 1 n. 5 for references. 145), MacDowell (1978: 251), Humphreys (1983a: 248), Engels (1989: 9 e.g. Jones (1956: 144– 21 n. 2, 43), Todd (1993: 94), Christ (1998: 37, 127). 10 ‘[l]a logographie est toujours présentée comme l’assistance d’ordre technique qui, exercée par unhomme expert en éloquence, est prêtée à quiconque est enjustice; la synégorie, parcontre, paraît résolument inscrite dans le contexte social que nous venons de décrire, comme le témoignage desolidarité qu’apporte aucomparant le groupe quil’entoure et le protège’.

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widely known for his legal expertise would notcarry much conviction if he pretended to be a friend or relative of all the clients whom he chose to support, so at least a considerable part of his business would have to take place ‘back-stage’, as it were.11 150) makes a verysimilar point: a legal expert is tolerated as Dover (1968: 149– anactive participant inthecourtroom only if hecanconvince hisaudience that a tie of friendship or kinship exists between himself and the main litigant, or if he is himself a politically active citizen with a plausible motive for engaging openly in the case, i.e. friendship towards the defendant, enmity towards his opponent, or a deep concern over the rights andwrongs of the actual case. Dover adds, however, that ‘these explicit reasons areless important thanthe fact that bycoming to speak he[i.e. thesynêgoros] is displaying aninterest inthelitigant andinforming thejury byimplication that anadverse verdict will bea rebuff to him... ’So Dover seems to agree with Lavency that the tie between the main litigant andhis synêgoros was of the utmost importance. Dover further notes (1968: 157) that the litigant whose synêgoros claimed to have offered support onthegrounds of public-spiritedness rather thanpersonal ties of friendship orenmity waslaying himself opento theaccusation ή τ ρ ο α ςπ ρ α εσ that hewasusing paidrhêtores aspart of hislegal artillery (ῥ κ ευ α σ μ έν ο ς , cf. Isaios 1.7). 12) note that in the fourth On the other hand, Bonner and Smith (1938: 10– century manysynêgoroi found it unnecessary topretend that they hadpersonal ties linking themwiththemainlitigant whomthey were supporting. Theobservation of Bonner and Smith is essentially correct, as will be demonstrated below; but their explanation of this phenomenon is inadequate. In keeping with their general approach toAthenian law,theyoffer a chronological solution: At first advocates were ‘ andfellow-demesgenerally drawn from the litigant’s friends, relatives, club fellows, men.These were themenwhoknewhimandhisaffairs best. Butincourse of time advocates tended to become professional in private as well as public suits andthe practice of paying advocates arose.’(1938: 10)12 Onthe following pages they quote a number of introductions to synêgoriai to illustrate their point and conclude that ‘after the middle of the fourth century the advocate is a well-established factor in litigation. Thepretense that theadvocate is a relative andfriend is abandoned. Heis the one who is most able to help the litigant.’ (1938: 12) The evidence available to us does not allow a detailed reconstruction of the development of thepractice ofsynêgoria overtime. However, oneof thefewpieces of evidence thatprovides reliable information about litigation inAthens intheearly fifth century is Hdt.6.104, fromwhich it maybeinferred thatseveral citizens participated intheprosecution of Miltiades intheyear493. Ona later occasion, according to Hdt. 6.136, Miltiades wasassisted bysynêgoroi when his gangrenous leg made himtooill toundertake hisowndefence. Synêgoroi arealso attested inAristophanes’ comedies, acting on the side of prosecutors as well as defendants.13 The little evi12). 11 For a similar view, see also Jaeger (1938: 34) andWolff (1968: 11– 205). 12 This diachronic reconstruction wasanticipated inBonner (1905: 203– 686 (prosecution). 952 (defence), Acharnians 685– 13 e.g. Aristophanes Wasps 946–

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wehave thuspoints totheconclusion thatsynêgoria wasanoldphenomenon, or, atanyrate, well established before thebeginning of thefourth century. It should also be noted that for the period covered by the surviving law-court speeches there is an even spread of attestations of synegorial activity in general. Furthermore, the material collected in the catalogue of joint public prosecutions represents every decade from the410s to the 320s except perhaps the 380s. Given the random survival of information andthe limitations of the evidence, this may suggest that there wasnopronounced development towards increased participation by supporting prosecutors in public actions during the period with which we are dence

concerned. Theevidence does notallow usto assess the level of synegorial professionalism’inthefifth century, andthere is noevidence atalltosupport Bonner ‘ andSmith’s claim thatsynêgoria inreturn forpaybecame more widespread inthefourth century than it hadbeen in the fifth, or, for that matter, that the Athenians in the fourth century hadbecome more tolerant of paidsynêgoroi appearing incourt. Noris there anyindication tobederived fromthelaw-court speeches themselves thatthere were anyradical changes intheattitude tosynêgoroi orintheactual practice ofsynêgoria during the later fifth andthe fourth centuries. The different ways in which synêgoroi represented themselves andtheir reasons forspeaking areduetodifferences intheir tasks as perceived bythe audience andthelitigants themselves, andthat depended first andforemost onthetype of procedure inwhich they pleaded. Inpublic actions, the task of a synêgoros also seems to have been defined differently, depending on whether heappeared in support of theprosecution orontheside of thedefence. Let us first return to Rhet. adAlex. 1442b andLavency’s interpretation of the text (1964: 85). According to Lavency, this passage illustrates howsynêgoria was perceived as a display of solidarity in thecourtroom. But Lavency does notmake used by the author in his enumeration of the different much of the disjunctive ἢ legitimate motives forspeaking asa synêgoros: ‘youmustsaythatyouarespeaking because of friendship, or because of enmity, or because youwere present at the event, or because of thecommon good, or because theoneonwhose behalf youare speaking is alone andis suffering injustice’.14 Thepreserved synêgoriai showthatsomesynêgoroi pretended toacombination of the different legitimate motives, claiming to be both friends of the main litigant, enemies of his opponent andacting outof public-spiritedness.15 Butit is surprising to note that the majority of attested synêgoroi pleading on the side of the prosecution in public actions donot refer to their ties with the main litigants. In four instances they stress their personal relationship with the opponent as their main reason for participating actively in the trial, a relationship which is, of course, invariably hostile.16 In another two instances they claim that their main motivation wastheir concern for thecommunity as a whole,17 andin a further six cases they donotstate their reasons at all.18

14 15 16 17 18

. 15: 908 with n.31) noted theἢ Lipsius (1905– Lys. 15.12. Lys. [6], 14; Dem. 22, [59]. Lys. 27; Dem. 20. Hyp. 1; Dein. 1, 2, 3; Dem. 25, [26]. Although Hyp. 1 is notpreserved in its entirety, thepro-

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It will beargued inthefollowing paragraphs thattheperceived difference inthe task of various types of synêgoros shows upin the wayin which they explain to the audience whythey havechosen tojoin inthelegal battle. Mostattention will bepaid to the synêgoroi who appeared in public trials. It will be argued that, in private actions, the attested synêgoroi seem to fit the descriptions usually offered by modern scholars (Section 1). However, synêgoroi whoappeared onthe side of prosecutors inpublic actions constitute a group apart (Section 2), while synêgoroi acting on the side of defendants in such trials could play different rôles in the pleading, depending onthe nature of their relationship with thedefendants (Section 3). Finally, in Section 4 I shall discuss the implications of these observations for the modern reconstruction of Athenian legal actions (and, in particular, public actions) tensely personal contests between twoopposing individuals.

1. Vicarious Voices? Synêgoriai

delivered

as in-

in private actions

With the exceptions of Dem. 29 andIsaios 2, which were both delivered onbehalf of defendants indikai pseudomartyriôn, all surviving synêgoriai delivered inprivate actions conform to the first piece of advice given inRhet. adAlex. 1442b. There is noapparent difference between synêgoroi whoappeared ontheside of theplaintiffs andthose whosupported defendants in private actions. The synêgoroi whodelivered Isaios 4 (diadikasia) and6 (in support of theplaintiff), Isokr. 21 (in support of the plaintiff), and Dem. 36 (in support of the plaintiff in a paragraphê, that is the defendant in the original dikê) all stress in their first paragraphs that they are friends ίλ ο (ϕ ιorἐπ ή ιτ δ ειο ι) of thepersons they aresupporting. η δ εσ τ ή ς , Synêgoroi whowere relatives of themainlitigants delivered Lys. 32 (κ 32.1, on the side of the plaintiff), [Dem.] 43 (natural father of the claimant Euboul4, on the side of the plainides III, [43].11, diadikasia), and[Dem.] 44 (son, [44].1– tiff).19 The speaker of Isaios 12 was supporting his paternal half-brother, the defendant in what was probably a private action (Isaios 12.1, 11). In the final passage of Dem. 32, the speaker (plaintiff in a paragraphê, that is defendant in the original 32). Although thetext is cordikê) swears that Demosthenes is hiskinsman (32.31– rupt, there is reason to believe that Demosthenes is introduced here as his syn-

êgoros.20

19

20

oimion andthefirst part of thepistis section canberestored withsome certainty. It is significant thatthere arenoreferences heretothespeaker’s ownmotives forjoining intheprosecution. The reason for their silence on this matter is most likely that these speakers were elected by the Assembly. Intheir capacity of elected prosecutors they wereacting asthevoices of thepolis and are probably the closest Athenian parallel to modern (ideally) impartial state prosecutors. A further synêgoria that does notcontain references to the synêgoros’ reasons for appearing is Hyp.4, butsince thebeginning of thespeech is lost, it cannot beruled outthat thesynêgoros did indeed state his reasons here. 64). Onthe meaning of ἐπ ή δ ειο , see Konstan (1997: 63– ς ιτ It is normally assumed that three final lines aremissing fromthetext. Onealternative solution would be to read ἐξ αin the last sentence, thus getting ‘However, such κ κ η εfor ἐξέστη τ έσ matters do indeed arise outof the constitution itself’. According to the speaker, Demosthenes

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Thesynêgoros whodelivered part of Dem.34 (ontheside ofthedefendant ina paragraphê, that is theplaintiff intheoriginal dikê) is introduced asa defacto party tothecase already in34.1, where thespeaker announces thatheandhispartner will take turns at addressing the court.21 Likewise, the speaker of Dem. 56 (plaintiff) introduces hissynêgoros asoneof his friends (56.50). Some of these synêgoroi add that they have chosen to support their friends or relatives, because these are not experienced pleaders (Isokr. 21.1, Dem. 36.1, [Dem.] 44.4). It is interesting to note that none of these synêgoroi claims tobea personal enemy of theopponent. If wego by these speeches, only a positive relationship with the main litigant seems to be adequate justification for aiding himin a private action. Anapparent exception is theclosing remark of Isokr. 20, in which the speaker issues a general invitation to

to come forward andspeak onhisbehalf (20.22). A similar pattern is detectable in the surviving fragments of other synêgoriai delivered indikai. InLys. fr. CXX (Thalheim) Onbehalf of Pherenikos ontheestate of Androkleides (ὑ ρ ) the speaker ο υ ρ ή ρΦ π εν ε ρ κ ίκ ο λ ὲ είδ ο υπ ρ λ ο υκ ὶτ ν δ ε ο ῦἈ finds it necessary to describe at some length the origins of his friendship with Pherenikos andPherenikos’father. Whenthelatter cametoAthens asa refugee, the speaker offered themhospitality, ‘sothatnoonewhoentered myhouse would have been able to tell which of uswasthe owner of it, unless heknewalready’(ὥ σ τ ε η μ δ έ ν γ ν α ῶ ν α ιτ ίσ τ ῶ α τ μ νεἰσιόντω , ὁπ ο τ νἠπ ῶ ό ο ήτ ερ ν ο ρ ό τ ιςπ ερ ςἡ ,ε ν ἰμ ὴ ν η τ ). Thesynêgoros points outthat Pherenikos could have found οτ ο ἰκ ία ν τ ἐκ έκ manypeople whowould havebeenbetter andmoreexperienced supporters thanthe speaker himself, butthat Pherenikos believed that hisintimate relationship withhis synêgoros would addcredibility to his case.22 α τ ὰ Τ είσ ιLikewise, the speaker of Lys. fr. CXIX (Thalheim) Against Teisis (κ ) seems to have been closely involved with themainlitigant whowastheplainδ ο ς tiff in a private action for violence. In the first line of the speech the speaker proή δ ειό π ιτ ο ί ςμ fesses his intimate connection with Archippos, a close friend of his (ἐ ἐσ τ ιν...), andit isclear fromtheextant partof thenarrative thatthesynêgoros spent social time in Archippos’company. Even theonesurviving line of Dein. fr. XCIII (Conomis) Synêgoria for Athenades against Amyntichos concerning the raft, no. 1 ) contains a protesta(Ἀ ]ο ν ρ ι[χ α γ τ ν ία ο ύ η ρ μ ῃ π ὶτ ῆ σ ε υν ν ά δ ρ ὸ ςσ χ εδ ία ςἈ ςπ θη ίλ ο ο ςμ ικ ή α ). The opening words of Dein. fr. δ ὶἐπ ε ιο tion of friendship (ϕ ν ιτ ςὤ ν υ LII (Conomis) Synêgoria for Parmenon concerning damage to ᾽(orby)a slave (σ η γ ο ρ ία Π μ ρ α έν ο ν τ ) shows that thespeaker claimed to ιὑ η ς β ά β λ υ ο δ ό π ρα π δ ρἀν ὲ those present

21

has promised to help him, despite his decision as a politically active citizen not to meddle in other people’s private actions. Butsince thegrain trade isa political concern aswellasa private matter, Demosthenes canjustify his intervention by pointing to the obligation of kin to help each other incourt as well as hisconcern fortheinterests of thecommunity. ν ό μ ε ιλ έρ εγ ῷ τ ν ᾽εὐνο ία ςἐ μ ετ ν ῶ μ ιἡ α σ ᾽ ῦ ο κ ,ὦ ρ ε σ τ ἄ ν α ί, ἀ ςδικα δ μ εθ σ ό μ ῶ ν δ εη ια ὑ Δ ίκ α

τ ω ν ... ι ο ερ τ ό ῦ δ ειν ο ἐμ ὶν εἰσ ιν ε έγ ὶλ ο λ λ ο ιπ τ ί, ὅ ρ α ε τ σ ςδικα δ ν ἄ ο ,ὦ έν ικ ς α νκ ὖ ὶΦ ν ο ερ ὲ 22 ο εμ ἶδ ο τ η τ π ισ α νοἰκειότ ὴ νἐμ ὴ ιτ α γ ῖτ ε ω ςἡ ᾽ὅμ λ λ ο ι·ἀ π ειρ ν μ ἔμ ά τ ω γ α ρ ντοιούτ λ λ ᾶ ο νπ ω κ α ὶμ

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have been present at the transaction around which the present suit revolved (κ α ὶ μ η γ έν εν εγ α ρ ο ς...).23 π α Interestingly, the one fragment of a private synêgoria which does notcontain a justification for the synêgoros’ appearance, but suggests a direct reference to the main litigant’s ownargument is the opening line of Dein. fr. LXXVI (Conomis) Synêgoria for Agathon (Ἀ ρία ). The information in Dion. Hal. Dein. γ ά θ γ ω ο ν η ισ υν 5 that this synêgoria wasdelivered inconnection withanaction concerning diamartyria maybring this speech into line with Dem. 29 andIsaios 2 which, aspointed out above, donotemphasize therelationship between synêgoros andthemainlitigant. It wasnoted inChapter 2: 4 thatthere isa highfrequency ofsynêgoroi inattested dikai pseudomartyriôn, andthatanexplanation forthis phenomenon might betheperceptionthat thereal party tothecase wastheperson onwhose behalf thetestimony had been given in theprevious trial. It wasalso suggested that there might have been a general acceptance of thepractice that theoriginal litigant returned thefavour tothe witness in the form of a synêgoria if thewitness wassubsequently attacked. As noted in the introduction to this chapter, eight outof eleven extant private synêgoriai contain proper diêgêseis.24 Since it is unlikely that a main litigant andhis synêgoros would waste time intelling thesame story twice, this maybetaken as an indication that these synêgoroi defined their task as pleading not only on behalf of, but also instead of, the main litigants who had, presumably, delivered only token prooimia. Hence also the topos that the main litigant is in needof rhetorical assistance because of his lack of skills. Here weencounter an Athenian parallel to the 17); andprecisely because the synVicarious Voice in Crook’s sense (1995: 13– mainlitigant’s case wasvoiced, he the which acted through as a mouthpiece êgoros would not necessarily oust the legal protagonist by his side from the centre of the court’s attention. Some of the narratives produced in these synêgoriai have the two opposing main litigants as starring characters, while the synêgoros himself plays a minor part in the story25 or no part at all.26 As for the synêgoriai which complemented a substantial speech delivered by the main litigant, the one sample that we have may

α ὶanda further justification for the 23 The initial κ α ὶmight have been followed by a second κ speaker’s appearance on the bêma against Conomis (1975: 123) ‘nonintellegitur quomodo or. α ὶmaybe interpreted as ‘although’. cumconiunctione κ α ὶexordiri possit’. Alternatively, the κ Thelatter will bethemost appropriate translation if wefollow Usher’s reading of thepassage in γ ε ο ρ α τ :κ α ερ ς ὶπ α νfor mss. ὕσ ο ερ τ σ Dion. Hal. Dein. 12, accepting Hudson’s emendation ὕ ικ εῖτ δ α ι, thusjoining ἀ ν ω μ έν ρ α ιΠ γ τ ν ,ὅ ω εν η μ έν εἔγν γ ο ω ςὕσ τ ρ ε ί, ἔγ α ςδικα τ ερ ο σ ν ,ἄ δ ν together in onepassage thelines assigned bythemss. to twodifferent speeches. 24 Lys. 32; Isaios 2, 6; Isokr. 21; Dem. 29, 36, [43], [44]. 25 Lys. 32; [Dem.] 43. The speaker mentions his own part in the adoption of Euboulides III ([43].11–13, 73– 74) andhis actions as the kyrios of Phylomache II ([43].9), buthe defines his rôle in the present trial as that of voicing the case of Euboulides III on his behalf: [43].15–17, 84; andby implication onbehalf of theacting kyrios of Euboulides III, whose name was 49, 81– onthewrit ([43].15). Thediêgêsis of this speech hasasitsmostimportant element anaccount of the genealogies of Euboulides III andhisopponent, Makartatos. 26 Isaios 6; Isokr. 21; Dem. 36.

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suggest that insuchcases, too, thelegal protagonist would occupy a central place in the synêgoros’ narrative.27 The surviving material does not inform us what type of synêgoria would be most common in private actions: the number of speeches is far too low, andour

selection maynotberepresentative. Asnoted inChapter 2, speeches which deviated from the standard pattern of a dicanic logos mayhave stood a lower chance of survival than thespeeches that conformed totheacknowledged model. Thesynêgoriai containing a full diêgêsis andcomprehensive argumentative sections maythus be over-represented in ourcorpus of oratory. But despite the variations in the length andscope of the surviving synêgoriai delivered in dikai, it is still significant that, on the whole, the evidence seems to conform to the standard modern descriptions. Except in dikai pseudomartyriôn, the synêgoroi define themselves as partisans of the main litigants, intimately connected withthepersons whoarereceiving their support, andthemainlitigants remain clearly visible as protagonists. The only difference is that the extant synêgoriai, including theone that wasintended as a supplement to a substantial speech delivered by the main litigant, suggest a rôle for the synêgoros which went far beyond the rôle of a modern character witness. These synêgoroi all plead on legal issues, and although some of their speeches contain lists of the services of the main litigants andtheir relatives tothecommunity orcomments ontheir upright characters,28 wegeta clear impression that legal pleading wasstill their most important task.

2. Synkatêgoroi in public actions

Ofthenine non-elected synêgoroi whoappeared insupport of prosecutors inpublic actions, andwhose speeches are preserved (Lys. [6], 13, 14, 15, 27, Dem. 20, 22, [59] andHyp.4), three refer to their personal relationships with the main litigants. Thespeaker of Lys. 15indicates inthelast paragraph of hisspeech (15.12) that he has contributed to the prosecution of Alkibiades, both because he wasa friend of the main prosecutor, Archestratides, andbecause Alkibiades was his personal enemy. Admittedly, byowning upto theties of friendship existing between himself andArchestratides, the speaker is representing his ownintervention as an act of solidarity. Ontheother hand, hedoes notproduce anyarguments in direct support of Archestratides. His mention of Archestratides is confined to a single sentence, andthere is thus nothing inthespeech which remotely resembles theevidence produced bya modern character witness. Most of his speech (eight outof twelve paragraphs) is devoted to anattack onthe generals whoareexpected to plead in favour of Alkibiades as his synêgoroi. Thespeaker of Lys. 13wasthebrother-in-law andcousin of Dionysios (13.41) who hadinitiated the apagôgê (13.86). Dionysios was the brother of Dionysodoros, who hadbeen executed by the Thirty, allegedly at the instigation of Agoratos. The tie of solidarity uniting the relatives and friends of the murdered Dionysodoros is 27 28

Isaios 4. 59. 44, 56– 61; Dem. 36.31, 43– 28, 6.60– Isaios 4.27–

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emphasized throughout the speech, andthe obligation placed on the relatives of Dionysodoros to bring his murderer tojustice is represented as the main reason for ourspeaker’s appearance incourt (13.41– 42, 92). Now,because of theamnesty of403, theentire case of Dionysios andhiscousin depended upon thejudges’ accepting the charge against Agoratos as a charge of murder, inspite of thewayinwhich theprocedure wasinitiated, anddespite thefact that thecase washeard byanordinary dikastêrion rather than byoneof thehomicide courts.29 The rhetoric of Lys. 13contains manyof thetopoi found in speeches delivered inactual murder trials. Forexample, in 13.77– 82 Agoratos is represented ϕ ό ν ο as a polluted killer (ἀ ) with whomnohuman being would wantto associο ς ν δρ ate. In 13.92 thejudges aretoldto think of themselves asthefriends andrelatives of all those Athenians whose deaths hadbeen caused by Agoratos:

...it necessarily follows that youall are their friends andrelatives, so that they have put each of youunder no lesser obligation (sc. to avenge them) than we are.

μ ᾶ ίλ ηὑ ςἐσ ο ... ἀ υ γ κ ιπ τ ά ν τ ν ά ςκ α α ὶἐπ ςἐκ ιςϕ η ο είν δ ιτ είο υ ςεἶν α ι, ὥ σ τ ε ῳ α ἐπ ὶὑ μ μ ῖνἢκ η ῶ έσ νἑν ἡ ψ ὶἑκά κ α σ τ ν . λ ν λ ο ᾶ ο ὐ δ ὲ νμ ή π , the dying man’s last act of putting his relatives under the The verb ἐπ τ ω κ ισ obligation toprosecute hismurderer, is useda further fourtimes inthespeech (13.4, 41, 42, 94, cf. Ant. 1.1). The speaker’s attempt to represent the action against Agoratos as a trial for homicide renders it superfluous for him to explain why he has decided to support Dionysios: prosecutions for homicide could (oreven hadto) be fought collectively by the relatives of themurdered manat least as far as thedegree of cousins’sons, andassistance could also behadfromin-laws andphratry members.30 Since hewas a relative of thevictim, it wasonly natural thatourspeaker participated intheprosecution side byside withother kin.Furthermore, it mustbenoted that thespeaker of Lys. 13does notrepresent hissynêgoria asa service owedto themain prosecutor, Dionysios: hisreason for speaking is hisobligation toward hisdeadcousin, andhis relationship with Dionysios is of only secondary importance.31 There are no personal comments onDionysios at all to be found in this speech. The third example of a friend or relative acting in support of a prosecutor in a public action is that of Apollodoros who spoke on the side of his brother-in-law, Theomnestos, in the latter’s action against Neaira. It wasnoted in Chapter 3 that Apollodoros’representation of hisownrôle inthetrial against Neaira is transformed in the course of his speech. Hesets outrepresenting himself as the synêgoros of Theomnestos ([Dem.] 59.16) andends upreferring to himself as the real grapsamenos, especially from [59].120 onwards. However, therelationship between main litigant andsynêgoros as represented inTheomnestos’prooimion ([59].1–15) would

τ ὰ ν ο υ α εἶν ικ ό α ϕ ὰ ςδ ῦ ὲδ ο ίκ ο ςτ 29 Oneof theexceptions tothegeneral amnesty wasprecisely τ , Ath. Pol. 39.5. ν ε σ ἔκ α τ νκ ὶἔτρω ειν ε ίᾳ ο α τ χ ιρ α ὐ ε ίςτ ἴτ ιν ,ε ρ ια τ ὰ π τ ά 30 [Dem.] 43.57. The passage forms the basis of the restoration of IG I3 104. 31 See esp. 13.1– 4, in which the speaker represents the acts of Agoratos as an injustice done to the speaker himself. It is notuntil 13.41 that thenameof themainprosecutor is even mentioned.

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seem to conform closely tothemodel suggested byLavency. Thetwopleaders are byties of both marriage andblood, and,consequently, anenemy of either of them must be an enemy of both ([59].1,6– 8,11–13). But from a rhetorical point of view, [Dem.] 59 presents a rather surprising disunited

of arguments between thetwospeakers. It is often assumed (e.g. byDover andLavency) that it wasthetask of thesynêgoros toconvince hisaudience that his motives for speaking were legitimate, i.e. that he hadties which connected him intimately with themain litigant onwhose side hewaspleading. In [Dem.] 59 it is, infact, theother wayaround. Theomnestos devotes hisintroduction toa demonstrationof hispersonal relationship withApollodoros, andhisentire argument serves to convince the audience that Stephanos’ attack on Apollodoros amounts to nothing less than anattack onall of Apollodoros’family and,byimplication, onTheomnestos himself.32 Apollodoros, on the other hand, mentions Theomnestos only in his first paragraph in which the terms of the graphê are discussed. He refers briefly to Theomnestos’prooimion: tribution

Theomnestos has told you about the wrongs I have suffered from Stephanos which have made memount the speaker’s platform to accuse this Neaira here.

η κ α ά γ ν κ β ο ο α έν έβ ν υἀ η ο τη α ρ ῖο ν ι, ὑ ε α ς ,ὦ ἄ ν δ π τ ςἈ θ ὸΣ εϕ νἠδικημ ὲ Ἃμ ή ρ σ ω νΝ εα ίρ α ςτα η η σ ί, Θ σ κ ρ υ τ ὸ μ ν τη εό επ ο ςὑμ ᾶ ςεἴρ ς . He then introduces his first atechnos pistis, the law which formed the basis of the ὴ νταυτη ϕ graphê brought by Theomnestos (...κ ν ὶΘ η εό μ σ ᾽ὃ ν τ ντ ή ντ θ ο α εγρα ς ρ ). Apart from onebrief aside onhowStephanos hasbrought Theomnesά ψ α τ ο ἐγ tos’graphê uponhimself ([59].44), there is nofurther reference toTheomnestos in the rest of his speech. Apollodoros’ synêgoria resembles Lys. 13 and 15 in that it contains no argument designed to create good-will in theaudience towards the main litigant, Theomnestos; andApollodoros’ rôle is by no means comparable to that of a character witness. Apollodoros is notrepresenting himself as the partisan of the main prosecutor. Indeed, hadit not been for Theomnestos’prooimion, it would have been impossible forustotell whether themainlitigant andhissynêgoros wereconnected byanytieother thantheir common hatred of Stephanos. Andit mustbenoted inthis connection that Theomnestos, onhis part, is careful to stress that it wasnotApollodoros himself, butoutsiders, whohadpersuaded himinto taking action ([59].12). We maythen ask if the division of labour between Theomnestos andApollodoros wasinanywayunusual. Asmentioned inChapter 3: 2b, it hasbeensuggested by Thur that Apollodoros’ position as Theomnestos’ synêgoros can be explained with reference to the specific circumstances of the trial: Stephanos had brought an action for homicide against Apollodoros inresponse to thegraphê initially brought 32 In thelight of [59].1–13, inwhich Theomnestos lists all theinjuries donetoApollodoros, whilst representing himself as anindirect victim of Stephanos’attacks onApollodoros, his final paragraph seems somewhat artificial: he asks the judges to accept Apollodoros as a synêgoros, because he is older andhasmore legal experience andbecause ‘he, too, hasbeen wronged by this manStephanos here’. Thismayindicate that [59].15 is infact a standard wayof introducing a synêgoros.

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in Apollodoros’name. This rendered Apollodoros temporarily unable to follow up his prosecution against Neaira; andso theprosecution hadto be relaunched in the name of Theomnestos. Thür’s reconstruction goes a long waytowards explaining the division of labour between ho grapsamenos andhis synêgoros in this particular case. However, there mayhave been other reasons whyboth Apollodoros andTheomnestos might have found it expedient to represent Theomnestos as theperson formally responsible for thelegal action. Apollodoros washimself anunusual character, being a naturalized foreigner with a conspicuously high political profile. It is tempting to assume with Carey (1992: 5) that Theomnestos andApollodoros may have decided on this particular strategy in the present trial because Apollodoros feared a hostile reaction fromtherest of theAthenian community.33 True bornAtheniansmight well feel that itwashighly inappropriate fora naturalized citizen toattack other Athenians by means of a graphê xenias.34 In fact, Apollodoros refers elsewhere to his ownself-consciousness withregard to his status inhisspeech against Nikostratos ([Dem.] 53.18). Herelates howhehad prosecuted Arethousios in a graphê pseudoklêteias, anagôn timêtos. When it came to fixing thepenalty, Arethousios andhis supporters suggested a fine, andApollodoros agreed to accept their proposal rather than insisting onthedeath penalty:

...not in order to prevent Arethousios from being executed (for the deeds comby himagainst medeserved the death penalty), butso that I, being the sonof Pasion anda citizen bydecree, would notenduphaving caused thedeath

mitted

of anyAthenian.

ῷ θ α ν σ ά τ ο τ υεἴργα ρ ρα ὐ εθ οε τ ο ύ σ ῃὁἈ ιο γ ὰ ἰς ά ν ὴἀπ ς(ἄ οθ μ ια ξ α χἵν ο ὐ ϕ μ ισ η α π δ η ο έ ν λ η αἈ ίτ ςμ ή θ ν ᾽ἵν γ α ίω ὼ σ ο Π ὰ α τ ψ α α ἐ ςὢ νκ ὶκ λ λ ), ἀ έ ἐμ ν α ν . ίω π τ νἀ εκ ο ν ὼ ςεἴη It maybe objected that Apollodoros would display hisawareness of being a naturalized citizen only in a context where this was strategically called for: Apollodoros’ act of generosity towards Arethousios might otherwise undermine his claim that Arethousios andhis associate Nikostratos were indeed his enemies. Nevertheless, even inthis context theargument testifies toApollodoros’expectation thathisaudience would approve of such restraint on the part of an ex-metic vis à vis a born Athenian.35

33 Note, however, Patterson’s (1994: 204) attractive suggestion of anintended symmetry andcontrasting of Apollodoros’wife anddaughter withStephanos’‘wife’and‘daughter’, andherargu211) that Apollodoros actually exploits hisposition as a naturalized citizen in ment (1994: 209– the present case. Patterson’s argument does not rule out that Theomnestos andApollodoros would still prefer to have thecase advertised formally as Theomnestos’case. 34 Lofberg (1923: xx) suggests thatTheomnestos appeared as nominal prosecutor because Apollodoros was atimos as a state debtor, which he believes is suggested by [59].5. But Lofberg’s argument is based ontheassumption that atimoi were allowed to address thecourt assynêgoroi, which wasclearly notthe case. Andhe overlooks the information given in [59].8 that Apollodoros did in fact pay his debt to the treasury.

35 See also [Dem.] 50.26 where Apollodoros refers to Polykles’ insulting remark, designed to remind Apollodoros’ supporters of Apollodoros’ status as a second-rate Athenian. Apollodoros’willingness to repeat this insult in court is quite remarkable, andit testifies to litigants’

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That similar considerations madeApollodoros optforthesynêgoros-strategy in hisattack onStephanos andNeaira cannot beruled out; ontheother hand, it would berash todismiss [Dem.] 59 asan‘atypical’synêgoria. Forit mustbekept inmind that the other preserved prosecution synêgoriai in ourcorpus have been divorced from their original context, andit is possible that some of them were originally preceded byintroductions very similar to that spoken byTheomnestos. In anycase, [Dem.] 59.16–126 resembles five of ourremaining six synêgoriai delivered in support of prosecutors in public actions in at least one important respect: like Apollodoros, these synêgoroi make surprisingly little –if anything at all –of their personal connections with themainprosecutors. Dem. 22 is anexample of this. Thespeech wasdelivered byDiodoros insupport of Euktemon, whohadbrought a graphê paranomôn against Androtion. We know from Dem. 24 that Euktemon and Diodoros collaborated regularly both in the courts and in the Assembly.36 It is striking that Diodoros does notindicate at all that hewassupporting Euktemon out of friendship or, at least, out of political solidarity. In his synêgoria he makes only three references to Euktemon: once in his introduction (22.1) where he states that enmity anda wishto avenge himself onAndrotion are his mainreasons forjoining intheprosecution, just asenmity andhisdesire forrevenge hadcaused Euktemon to

bring the graphê paranomôn in the first place. But Diodoros points out that he has even better reasons than Euktemon for desiring the downfall of Androtion: Euktemon had suffered wrong at the hands of Androtion, but the injustice suffered by Euktemon was, infact, negligible compared to theinjustice to which Diodoros himself hadbeen exposed. 4 Diodoros defines his agenda as that of filling the gaps in the In Dem. 22.3– argumentation which Euktemon, the first speaker, hadleft open:

I shall try to expose briefly the issues

which, it seems to me, Euktemon left untold, but which youhad better hear, both concerning the matter on which you are going to cast your votes andconcerning the considerable damage which he [i.e. Androtion] has inflicted onyouthrough hispolitical activities.

ϕ π επ ο μ ν ο ν έν ο λ ιτ ευ υ ς ν μ ο σ ὶκ α ρ ίᾳ ὶπ ὶὧ ή ν ε τ ὗ ο ο ςδη ν ὴ ψ ετ τ ᾽ὧ ν ο ἴσ ε ὶδ ερ π ᾽ έλ τ μ ω νἐδ ιο νδ κ ό ε ι, β ρ α λ είπ ο ιπ λ εινΕὐκτή μ α α ᾶ ψ ε , ἅμ ν ᾽ὑ ςἔβ κὀλ ἰγ ὐ ο μ ι. α ά ρ σ ο α χ έ β ειρ σ π ιν ν ἐ θ ιεξ ε ῖν δ α τ ῦ ελ ι, τα α σ ο ῦ κ ᾶ μ ςἀ ὑ

50 where Diodoros reThe only other reference to Euktemon is found in 22.48– howAndrotion hadaccused Euktemon of embezzlement whenheserved asa collector of eisphora. This section ends with theclaim that Androtion hadnotbeen able to prove that Euktemon wasguilty (22.50), but it is significant that Diodoros does not take the opportunity to produce positive arguments in favour of Euktemon’s innocence. Indeed, the entire speech of 78 paragraphs does not contain a counts

being prepared to sacrifice some honour for strategic purposes, at least occasionally (cf. Herman1995: 53). 36 Dem. 24.8–15. This speech wasprobably delivered in 354/3, a year later than Dem. 22, but the 14, wasbrought in 355/4 (Hansen graphê paranomôn against Euktemon, referred to in 24.13– ], butsee Hansen [1974: 32] cat. no. 13, where he suggested a later μ ν ω ή τ [1989a: 46 s.v. Ε κ ὐ

date).

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onthepart of Diodoros to render theaudience more favourable tothe main prosecutor, to produce arguments which testified to Euktemon’s good character as a democratic citizen, or to demonstrate that a tie of friendship existed between thetwoof them. Theonly link between themasrepresented inthis single attempt wards

is their common enemy. Thereason whyDiodoros omits anyreference tohispersonal ties withthemain prosecutor maybe that Euktemon hadalready made this entirely clear to the audience inhisownspeech. Evenso, there areimportant differences between thewayin which Theomnestos andApollodoros divided their rhetorical task between them andthedivision of labour between Euktemon andDiodoros. Unlike Theomnestos, who confined his speech to a prooimion, Euktemon had delivered a substantial speech with a varied argumentation, andDiodoros defines his ownsynêgoria as speech

supplementary (22.3). Inmarked contrast to[Dem.] 59.1–15,where Theomnestos depicts hisownhostile relationship with Stephanos as inextricably bound upwith the feud between Stephanos andApollodoros, and[59].16 inwhich Apollodoros endorses Theomnes4) attempts to demonstrate that his motives for accustos’claims, Diodoros (22.1– ing Androtion in this action were similar to, but not identical with, those which had prompted Euktemon to bring the graphê. He does not represent his ownenmity towards Androtion as connected in anywaywith theon-going political conflict in which Euktemon wasinvolved, nordoes he indicate that Euktemon hadmade the connection in the previous speech. The impression given throughout Diodoros’ speech is that a certain distance exists between thetwoprosecutors. Eachappears to be fighting his own individual battle against Androtion, using the present graphê paranomôn as an appropriate weapon, andit is only the person of Androtion that unites them in a common cause. Hadit notbeen for the evidence of Dem. 24 we should never have known that theties between Euktemon andDiodoros were more

than just ad hoc.

Dem.22 is bynomeans exceptional inrepresenting themainprosecutor andhis synêgoros (or synêgoroi) as two independent agents, each of whom hadhis own personal reasons fortaking action: that is, astwoagents united byshared feelings of enmity, butnototherwise connected. Thespeakers of Lys. [6], 14, and27, andDemosthenes himself in Dem. 20 donotattempt to convey to their audience the impression that thegroup of prosecutors were united byties of solidarity which went beyond theparticular trials they were fighting. Nordowefindanyreferences to the mainprosecutor inHyp.4 Against Philippides, butsince thespeech is notpreserved in its entirety, it will notpermit anyarguments from silence. Hyp.4 will therefore notreceive attention in the following paragraphs. However, [Lys.] 6, of which the beginning is lost, will beusedbecause of thespeaker’s ownremark in [6].42 which apparently serves positively towiden thegapbetween thesynêgoros himself andthe mainprosecutor, Kephisios. The speaker of Lys. 14 adopts a strategy which bears a strong resemblance to that of Diodoros in Dem. 22. In hisprooimion the speaker takes care to inform his audience of the personal enmity between himself andthe defendant, Alkibiades, although he opens his speech with the claim that no one needs any excuse for pros-

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ecuting Alkibiades, whois anenemy of theentire community.37 Andlike Diodoros, thespeaker ofLys. 14doesnotpretend topersonal ties of friendship orkinship with the main prosecutor, Archestratides. Archestratides is mentioned in a single para-

graph (14.3):

In regard to everything else, Archestratides has delivered a satisfactory prosecution. For he has both given an exposition of the laws andpresented witnesses insupport of all hispoints. However, I shall instruct you,point bypoint, on the issues that he omitted.

ν ὲ τ ῶ ν ὶμ ρ ἄ ρ χ λ π ε λ εσ ρ ω Ἀ η ν α η τ τ ίδ ςἱκα γ ρ σ ν ό ε·κ ῶ α ρ ςκατη ὶγ ὰ τ ο ὺ ςνόμ ο υ ς ρ α ρ τ υ ςπ ·ὅ ρ ά ά ν τ ειξ έσ α ω έδ ὶμ σ ᾽οὗ ν π α α χ εκ ἐπ ετ ο δ τ ο ρ ςπ α α λ έλ ο ιπ ε ν ,ἐ γ ὼ ᾽ἕκα σ τ κ θ α ο νὑ μ ᾶ ςδιδά ξ ω . Again we have an exact parallel to Diodoros’ opening in Dem. 22.3– 4, in which Diodoros defines his task as synêgoros as that of supplying arguments that have been omitted bytheprevious speaker. Inhiscommentary onLys. 14.3 Carey (1989: 151withreference toFrohberger) 445, which contains a draws attention to Aristophanes’ Thesmophoriazousai 443– similar opening. Second Woman appears as a synêgoros for First Woman in the Assembly-style debate on howto punish Euripides:

I, too, have comeforward to say a few words. For she [i.e. First Woman] has a good prosecution on most points, but I want to relate also what I

delivered

myself have suffered.

ῆ μ λ θ ά η . τ ο ν ω ν ρ ὴ π α ῥ ν ω ἕν κ κ α α ε ὐ τ ίγ λ ὀ · η κ μ γ ε ρ ὲνγ Τ νεὖ ρἄ ὰ η ὰ κ ό η ᾽α α λ τ ὕ λ τ ι. ὼ α μ π έπ ᾽ἐγ θ α , τα ῦ τ α λ ύ λ ο ο ν έξ ο α ιβ δ ἃ

2 also comment on the Considering that Lys. 27.1, Dem. 25.1– 3, andDein. 1.1– preceding speakers ina similar way, there canbe nodoubt that wearedealing with a topos peculiar to synêgoriai, perhaps particularly to synêgoriai delivered in support of prosecutors.38 2. 37 Lys. 14.1– ν ο ῆ ρ 38 The topos is also attested inat least oneprivate speech, Dein. π ςδια ὶτ ςἈγάθω ε μ ρ τ υ α ρ ία γ ρκ α ὶα σ π ὐ ε τ ο ὸ ςσυνη ρ κ ία ε ν (fr. LXXVI [Conomis]), theopening line of which isὥ ςεἴρη ν γ θ . Given thefrequency of thetopos there is noneedtoassume thatitrepresents attempts ά ω Ἀ at improvisation onthepart of thesynêgoroi. This hasbeenpointed outbyWorthington (1992: 126). ButI disagree withWorthington whenitcomes tointerpreting thetopos asanindication, however slight, that the speeches were revised for publication. Presumably synêgoroi would have known in advance whowould appear on their side (and undoubtedly so in those cases where the prosecutors hadbeen elected by the Assembly). Likewise, it seems to me utterly inconceivable that litigants acting inconcert would nothavediscussed thecase andthedistribution of arguments between themselves in advance! It is worth noting, though, that the actual commendation of previous speakers is mostly general andrather vague. Demosthenes’ seemingly detailed comment onLykourgos’opening speech inthetrial of Aristogeiton (25.1) contains, oncloser inspection, nothing more thana commonplace. Thesame is true of a later comγ ο ρ κ υ ο ὲν ῦ ςμ mentonLykourgos’omissions (25.69). However, he is more specific in 25.97: Λ ι. ίε ο λ ῶ ,κ α ςἐπ ὶκα ν εῶ θ ν ρ α τ ῶ η τ έ μ ν ὴ α τ οκ ρ ε ὶτ τ ρ ύ α ν η ν ᾶ ἐμ θ Ἀ ν ὴ τ ν ὖ ο

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Inthese passages thespeakers justify their appearance onthebêma byclaiming that they possess specific information about thedefendant which wasnotavailable to their fellow litigant(s); by appearing as speakers they contribute to the pool of knowledge which will inform the verdict passed by the judges. It is worth noting that the references to previous speakers focus exclusively on the quality of their

rhetorical performance, the strength of the arguments presented by them, andthe observation that they have left out information which will now be provided by the present speaker. It would seem that such speakers deliberately avoid commending their fellow litigants andstressing their qualities as (democratic) citizens, their upright character, andtheir loyalty as friends. What is perhaps less surprising, given the context, is that no attested synêgoria delivered in support of a prosecutor in a public action contains the allegation that the main litigant is in need of rhetorical support because of his lack of skill. The claim that the main litigant and his synêgoros share the same enemy is theonly recurrent argument, andeven this allegation is missing from some synêgoriai. Although Demosthenes does indicate (20.1) that he hadconsented to contribute ο ῦπ α ιδ to the attack onLeptines’law ‘because of Chabrias’son’(τ ὸ ςεἵν ε κ α τ ο ῦ ρ ίο ), hemakes nofurther reference tothisrelationship, andit is notevenknown β υ Χ α whether the sonof Chabrias wasactually numbered among the people speaking in support of the prosecutor.39 It is clear from 20.100 that the prosecutor whowas juridically responsible for thetrial of Leptines’lawwasApsephion, sonof Bathippos;40 butwehear next to nothing about himin Demosthenes’ speech. Andaccordingto Demosthenes, hisownreason forprosecuting thelawof Leptines is first and foremost that he thinks ‘that it will be beneficial to the polis if the law is abolished’ (μ ά λ ισ τ ). μ ο μ ν α ιτ ν α ὲ θ ό ν σ ὸ νεἵν ύ π λ ελ τ ῇ ειλ ε ιν ό φ έρ εκ α μ μ ίζ τ ο ῦν ο ε ινσυ Whatis moreremarkable isthatDemosthenes makes noattempt toconvince the judges that hewasthepersonal enemy of Leptines. Thespeech does notcontain any serious character assassination of Leptines himself. Theattack is directed athislaw, andthere is at least onepassage which seems to be spoken ona conciliatory note

(20.102):

It seems to me,Athenians, either that Leptines (and don’t youget angry with me,for I am not going to say anything bad about you) has not read Solon’s laws, or else that hedoes notunderstand them. γ ·οὐ ισ θ η ῇ ρ δ ν δ ὲ ὲ ν ὀ ς ιμ ο ίμ α η ς(κ ίν τ επ η κ ν ῖο ι, δο ῖΛ α ε μ ο ρ ὶδ ᾽ ,ὦ ε θ Ἐ ἄ ν ςἈ δ γ ὰ ρφ ν ὐσ υ λ υ ο ςἢο α ο ν ςνόμ ρ ῦ ω λ ό ο ο ιτ ὺ ςΣ νἐρ α ν κ ω έν ὐ ῶ κἀ ν σ εγ ε) ἢο ιέν α ι.41 39 The wordπ α ῖςmayin fact indicate that Chabrias’sonwasstill a minor: see Blass (1893: 266) andLipsius (1905–15: 909 n. 34). 40 pace Carlier (1990: 77). 41 See also 20.143–144 in which Demosthenes lectures Leptines on the mechanisms of punishν υ ντοίν ὲ ἰμ mentandreward, which will become inoperative if his lawis allowed to stand: ε μ ῖν α ι λ ῦ σ ρ ὑ ή σ ὰ ετ α ιγ ρ ἠ ω γ χ γ ν η ό ι, συ ε σ ώ σ λ η ετα δ α ίκ τ ὐ ), α ῦ τ (γ ο κ ρἂ α α έν ὶτοῦτ ν ο γ ιτ ὰ ο ν ὸ τ ο νπ ιε ῖν ιο ο μ εν ςκύρ ό ειν τ ὶδια α νκ ά δ ω υ ο ζ ή α ισπ σ ετ ν ρ α τ ε ν π ὶὧ .ε ερ α ὲφ να ἰδ ὐ τ ὸ ςἥμ ι. If this is meant asanattack on α μ ο λ ύ ο ὐβ ᾽ο δ ιν ε μ ο ν ν έγ ό μ , ἐγ ,ψ ὼ ω ὲ ν σ έ κ ο ὐ ἔ χ ω ιν π ῶ α ςἐπ Leptines’character it is remarkably tame, even if it is allowed that thepassage is deeply iron-

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Demosthenes mayof course be ironic here. Ontheother hand, it is striking that the speech as a whole contains nothing similar to the allegations made in Diodoros’ speech against Timokrates (Dem. 24), ouronly other speech delivered in a graphê nomon mêepitêdeion theinai, in which the defendant Timokrates is depicted as the unscrupulous henchman of the even more sinister characters, Androtion, Melanopos, andGlauketes.42 Theonly other personal remark onLeptines’character is the passage 20.14, which mayor maynotbe ironic: Demosthenes thinks that it would be beneficial to the Athenians andto Leptines himself if hecould be persuaded to imitate theethos of thepolis:

Noteven if he is an extremely good man–and he maywell be, asfar as I am concerned –can he excel the polis in character.

ρεἰπ ὰ δ ὲγ ὐ ν ο ά υχρησ τ ό ᾽, ὡ ςἐσ θ ο ᾽ἕν ςἐμ ῦγ εκ ᾽ἔσ ελ τ ω τ ,β ίω νἐσ ό τ ὶτ ῆ ςπ ἦ θ ο λ εω ς ςτ . ὸ There is nofurther attempt todiscuss Leptines’character intheentire speech. Demosthenes refrains from making anyattempt to demonstrate that he is prosecuting out of personal enmity. Nordoes hepretend that hewasacting forreasons of friendship orother obligations owedbyhimtothemainprosecutor, Apsephion, orto hisfellow synêgoros, Phormion. It cannot even be determined whether anyties connected the three accusers ofLeptines’lawoutside thecourt room. If suchties didexist, wemust regard Demosthenes’ silence onthe matter as deliberate andhighly significant. Plutarch reports that ‘some say’that Demosthenes agreed to appear ontheside of the prosecutor because he wascourting Chabrias’widow (Life of Demosthenes 15). This is clearly anecdotal, andeven Plutarch himself does not seem to believe thestory. Weknownothing about thelives of Phormion andApsephion, nordowe have any information pertaining to Apsephion’s father, Bathippos, who was the original instigator of the graphê nomon mêepitêdeion theinai against Leptines, but whodied before the case could be brought before a dikastêrion. It may well be that these menwere all connected bypolitical ties orbyties of kinship or friendship; but if so, it is all the more significant that Demosthenes does not refer to such connections with a single word. It might beobjected that Demosthenes asa prominent figure inthepolitical life of Athens might have been able to claim that his intervention wasmotivated solely byhisconcern forthecommunity asa whole, precisely because hispolitical engagementwould be known to hisaudience, andthat suchprotestations of political altruismmight have rung hollow if voiced by less prominent synêgoroi. But it must be kept in mind that the trial against Kephisodotos in 359 was allegedly the first public action in which Demosthenes took an active speaking part, as synêgoros for Euthykles,43 andthat when he delivered the speech against Leptines in 355/4, he had yet to deliver his maiden speech in the Assembly the following year.44 Thus, we ical. Theaction against Leptines’lawwas, of course, singularly unsuitable personal feud, since Leptines himself wasnolonger personally atrisk.

asaninstrument ina

197, 200. 189, 196– 162, 187– 130, 137, 158– 113, 125– 67, 110– 42 Dem. 24.11–16, 26, 65– 99) cat. no.96. 43 Hansen (1975: 98– 44 Dion. Hal. Amm. 1.4. Dionysios mayof course mean that Demosthenes delivered his first pub-

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cannot dismiss thissynêgoria asexceptional onthegrounds thatDemosthenes (aged only 29 or 30) hadmore political clout than the other prosecutors whom weencounter in public actions.45 Likewise, thespeaker ofLys. 27refers onlyobliquely tohisfellow prosecutors. It seems that thetrial inwhich this speech wasdelivered formed part of a series of prosecutions directed at Epikrates and some other citizens who had allegedly collaborated with him.46 The speaker claims (27.14) that the prosecutors hadbeen approached by the defendants, who attempted to buy them off, thinking that they would muchsooner receive thisfavour from us thanfromyou, since wearefew, and, besides, that it is easier to bribe other people with your property than youyourselves.

μ μ ᾽ἡ ν ίζ ῶ ο ν α τ ρ ν ὀ ο ςπ θ λ ο ᾶ τ λ ὺἂ ν ν π α ω τ ο ίγ ν ὄ ν τ ω ν τ η α ν ύ τ τ ὴ ν ρ χ ιν ά μ λ α β ά ν ε ἤ ιν π ρ α ᾽ὑμ ᾷ ῶ ν ο , ἔτ ν ἄ λ ιδ λ ο ὲῥ υ ςτιν ὰ ς ὑμ α κ ερ ρ α τ α ίζ χ α ι θ α εσ ἢὑ μ ᾶ ςα ὐ τ ούςγ ε.

The speaker continues (27.15) with theaffirmation that heandhis fellow prosecutors hadresisted the temptation, because they shunned what would amount to a betrayal, and–this is stated ina moreconvoluted fashion –because they feared the penalties which might be imposed for such conduct. In this passage the speaker represents himself aspartof a teamofprosecutors, andanupright teamatthat. Even so, the other members of the group remain anonymous, andthe speaker does not attempt to champion anyoneof them. Andlike Demosthenes inAgainst Leptines, the speaker of Lys. 27 eschews references topersonal enmity towards thedefendant: theimpression given inthis speech is thatourspeaker wasappearing ontheside of theprosecution solely outof public-spiritedness. The most peculiar synêgoria interms of thealleged relationship between main prosecutor andsynêgoros is undoubtedly [Lys.] 6 Against Andokides. Its authenticity as a genuine work of Lysias hasbeen andis still disputed, andsome scholars,

45

46

101) interprets Dem. 51.19 as an lished speech (On the Symmories), andSealey (1993: 100– indication thatDemosthenes hadaddressed theAssembly already before 359. But, first, despite 249), it is not at all certain that Dem. 51 was the arguments presented by Blass (1893: 242– delivered byDemosthenes himself, and,second, even if it was, theattack onarrogant rhêtores whowill nottolerate ordinary citizens taking part inpublic debate does notnecessarily refer to thespeaker’s personal experience. Onthedate of Demosthenes’birth, seeGolden (1979), andSealey (1993: 247), whoargues for theyear384/3. Demosthenes is infact nottheonlyprosecutor whosawanadvantage inpresenting his intervention as motivated by public-spiritedness alone: the speaker whobrought the graphê paranomôn against Aristokrates asks his audience notto think that he hadbrought his prosecution because of personal enmity (Dem. 23.1), cf. Lyk. 1.6–Lykourgos wasof course a very well-established figure whenhedelivered this speech. See further thediscussion inSection 4 of this chapter. ὰ ν υ α ά τ ο ρ ςἱκ η τ (...) Ἐπ ικ α ν ρ ὲ γ ιμ ό η τ Lys. 27.1. Thetext is uncertain, andFalk’s deletion κα [κ α ὶτ ν μ ρ β ] wasaccepted byGernet andBizos (1926). However, theopposing ῶ σ π ευ εσ υ ν τ ῶ side is referred to in theplural throughout, andnothing prevents usfrom assuming that weare still dealing withonetrial outof a series, even if wereject theidentification of theaccused as a team of ambassadors.

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forexample Gernet (1924: 91), have argued thatthetext was, infact, notcomposed fordelivery incourt atall. Gernet stated a number of reasons forrejecting thespeech as a genuine piece of forensic oratory: the speaker does notmention thecrime that formed thebasis of theendeixis, thespeech does notcontain a sufficient amount of juridical argumentation, it does notmention the mutilation of the Herms except in passing, thedecree of Isotimides is referred to as a nomos in [6].9, 29, and52, and, last butnot least, the author seems all too well acquainted with the arguments presented by Andokides in his defence. Gernet concluded that ‘this is not an accusation, it is a diatribe’andsuggested that weare, rather, dealing witha contemporary pamphlet against Andokides, composed after the trial with the aim of detracting fromAndokides’success insecuring hisownacquittal. However, theobjections advanced byGernet have proved farfromconclusive. 57) presented a detailed refutation of Gernet’s technical arguLämmli (1938: 17– ments onstrictly juridical issues. Hesuggested, further, that those passages inAnd. 1which mirror thearguments found in [Lys.] 6 mayhave beenadded toAndokides’ 42). The speech prior to circulation, rather than the other way around (1938: 41– speech hassubsequently been accepted as a genuine piece of fourth-century forensic oratory (though notnecessarily genuinely Lysianic) byMacDowell (1962: 14– 83), Hansen (1973 pass. and 1976: 130) andTodd (1993: 15), Dover (1968: 56, 78– 37 n.13, butwith reservation). Oneof the passages which crowned Gernet’s suspicion that [Lys.] 6 wasnot composed for delivery in court was[6].42, in which thespeaker is notcontent with maintaining a distance between himself and the main prosecutor, Kephisios. He takes what would seem like the ultimate step by admitting that Andokides’anticipated attack on Kephisios’character maynotbe completely unfounded: Perhaps, then, hewill also bring counter-accusations against Kephisios, andhe will have something to say –for the truth must be told. But you cannot punish both the defendant and the prosecutor with the same vote. Rather, nowis the time to reach ajust decision about this man; another time will comeforjudging Kephisios and each of us concerning those matters which he will nowmention.

ῆ η θ ρἀλ ῃτ γ ὰ ὰ ή σ ρ ε ι, κ γ ο α ὶἕξ η ιλέγ ιὅτ ε τ α ικ τ ν ἀ υ ισ φ ίο η α ὶΚ κ ν ὖ ω ςο σ Ἴ μ ῳ τ ν εν ο ό ν τ γ εἀ ο ύ ο λ ο φ ·π ν ισ θ α ετ ή α ῇ ὐ τ ύ ῇ ψ εῖςο δ ν ᾽ὑμ κ ἂ ,ἀ ὐ λ λ ειν ὴ λ έγ ρ χ ι α ν ό ς ἐσ α ιρ κ τ ιγνῶ υ τ ο ρ ὶτού μ ὲ ν ν ὰ π ε λ ῦ ν λ ι. ἀ σ α ά ρ λ ο ο ῦ κ ν τ α γ ο τη α κ ν κ α ὶτ ὸ ή ῳ ,ὧ νοὗ ν τ ο μ εμ ςν ν κ ῦ μ α ῶ νἑκάσ τ ὶἡ ισ φ ίῳ η ιΚ ξ ε ο ςδ ὲἥ , ἕτερ ια α ίκ τ ὰ δ ι. α ετ σ This is indeed a striking passage, and such a direct attack made by a synêgoros against the main litigant on his side is unparalleled; but that does not necessarily meanthat weshall have todismiss it asimplausible. Theevidence discussed above already points totheconclusion that it wasnotseenasobligatory, andinsomecases notevenasdesirable, thata synêgoros allied himself tooclosely withthemainprosecutor through hispleading. Thejudges were bynomeans expected to demand an elaborate exposition of the friendship or ties of political solidarity which united the mainprosecutor withhissynêgoroi, andwhich arenormally heldbymodern scholarstobeessential if a synêgoros wastobe accepted asa speaker bytheaudience. A

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profession of thepersonal grudge heldbythesynêgoros against thedefendant, along withhisdesire (orspecial capacity) tobring to thefore arguments omitted bypreviousspeakers, are, infact, morecommon inourextant synêgoriai thanarearguments displaying solidarity as a primary motivation fortaking part in a public prosecution. In this regard, thesynêgoroi forvolunteer prosecutors resemble theattested elected katêgoroi, except that the latter, who are not appearing in support of any individual butonbehalf of theentire community, adopt anevenmoreimpersonal rhetoric: they donotpretend even to anypersonal feelings of enmity towards the defendant. The closest wegetto anelected katêgoros commenting onhisownfeelings andpersonal ties, be they friendly or hostile, is Hypereides, whorenounces his friendship and 21), andthespeaker’s remark in obligations towards Demosthenes (1 fr. V cols. 20– Dem. 25.37 that Aristogeiton hasaccused himinseven graphai paranomôn andtwo euthynai.47 The modern proposition that synêgoroi were always partisans of the main litigants in word as well as deed must then be modified considerably, andif webear that in mind, the criticism levelled against Kephisios by the speaker of [Lys.] 6 already seems somewhat less shocking. It is clear fromtheargument of [Lys.] 6 that thespeaker, whopresumably belonged tothefamily of theEumolpidai, represented his rôle as that of voicing the grievances of a particular group, that of the priestly families of Eleusis. In [6].54 herefers to hisgrandfather, Diokles, whowastheson of Zakoros the hierophantês.48 Throughout the preserved part of the speech the emphasis is on the religious aspects of Andokides’ crimes, and the speaker is in effect acting as anexpounder of religious lawanddivine signs andas anauthority onthequestion of divine vengeance. Asmentioned above, Gernet (1924: 92) found the absence of juridical arguments highly suspect, but given that the speaker was only one out of a number of prosecutors, it maybe assumed that others haddealt withtheother aspects of thecharge. Ourspeaker mayhaveappeared asanauthority onreligious issues in order to supply thearguments which theother speakers were not in a position to provide. This ties in neatly with the synêgoros-topos isolated above: the synêgoros joins in the prosecution because he possesses specific knowledge without which the attack on the defendant would be incomplete. In this respect, hedoes indeed resemble a modern witness: nota character witness testifying to thegoodcharacter of themainlitigant, but, rather, an e xpert witness’whois ina position to instruct theaudience onparticular aspects of ‘thedefendant’s personality or crimes.49 This wayof composing a team of prosecutors hasother parallels. According to Plato Apol. 23E the team that prosecuted Sokrates wascomposed with a view to

ρ ῶ inthis passage makeit impossible todecide whether Aristogeiγ ο 47 Theverbs κρ ίν τη ω andκα ton hadbeen legally responsible for the actions or whether he hadappeared as prosecution synêgoros onone or all of these occasions. 15) andDover (1968: 48 The identity of thespeaker hasbeendiscussed byMacDowell (1962: 14– 80). Both scholars assume that this synêgoros must have been one of those mentioned 78– 49

134); but the possibility that yet more people were indirectly by Andokides (1.94–100, 133– volved intheprosecution cannot beruled out. 330). Onthecategory of expert witnesses, see Humphreys (1985: 326–

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achieving a similar division of labour among theprosecutors: Meletos participated acting as thevoice of thepoets, Anytos as a representative of the artisans andover political matters,50 andLykon onbehalf of the rhêtores. Hansen points out(1995: 14) that inboth Plato’s andXenophon’s apologies Socrates’defence is directed 13– almost exclusively against the charges brought by Meletos, who emphasized the issue of Sokrates’impiety andcorruption of the young.51 Hansen notes the absence in both apologies of political arguments relating to Sokrates’past associations with controversial figures such as Kritias andAlkibiades; but, unlike other commentators, he does notbelieve that the silence of these two sources proves that no such charges were raised by Sokrates’ prosecutors.52 He suggests that these particular accusations relating to Sokrates’activities in the period covered bytheamnesty were raised inthetrial byAnytos rather than Meletos, and that these charges were answered by Sokrates’ synêgoroi,53 not by Sokrates himself. Thus, theactual silence in both Plato’s andXenophon’s Apologies, along withtheindication that there wasa rhetorical division of labour onbothsides, seems tocorroborate thestatement in Plato Apol. 23E. Muchattention hasbeen devoted by later rhetorical theorists to the art of êthopoiia, theprojection of a particular type of character which does notnecessarily reflect the real character of the litigant. The character itself is a fiction, created for the occasion anddesigned tomeettherequirements ofa particular line ofprosecution or defence.54 Theweight of anygiven argument does notjust depend onhowit is said, γ μ ιο ρ ῶ νκ υ α νδη μ ὶτ ῶ εν ο ν ῶ υ θ , Ἄν τ χ ο τ ς νἀ ό ὲὑ π ὲρτ ῶ ςδ ο νπ ιη ῶ η τ ο ὲνὑ π ὲρτ ςμ έλ 50 Μ ν π ῶ ο would λ ιτ ικ ν ῶ νAnalternative interpretation of τ ω η τόρ ν τ ῶ ρ ῥ ν δ ω ὲὑ π κ ὲ ύ ,Λ ν ῶ π ο λ ιτ ικ be ‘persons involved inpolitics’, andit is · of course impossible to determine whether thegeniὰ π ο λ ιτ ικ ὰ maybe tive plural ismasculine orneuter. Hansen (1989a: 4) notes that ‘Theneuter τ , butthemasculine π ο ιτ ικ λ ό ςoccurs onlyonce insome3000 pages of attic politics” usedabout “ statesman”Euboulos.’If rhêtôr carries rhetoric (Aisch. 2.184) ina flattering reference to the “ its usual fourth-century meaning in this passage andrefers to those whoaddressed theAsseminthesense ‘persons engaged inpolitics’seems redundant. ν ῶ ιτ λ ικ ο π ν ῶ blyandcourts, thenτ However, it is possible that rhêtôr refers toteachers of rhetoric, in which case this is theearliest attestation of thewordinthis sense. 51 Hansen first produced this argument in Danish in (1980d), andit wasaccepted as a valid point 76). But Brickhouse andSmith still seem determined to by Brickhouse andSmith (1989: 75– interpret thehistorical trial as if thearguments presented intheApologies constituted theentire 87). Themodern controversy defence, especially in their section ‘Sokrates’silence’(1989: 82– isemotionally charged toa surprising degree, andthescholarly world appears tobedivided into those whowould like to whitewash Sokrates andthose whowould like to acquit theAthenians of thecharge of miscarriage ofjustice. It is to be feared that historians andphilosophers will never reach agreement on the trial of Sokrates, andthat the debate will always evoke strong emotions.

87, ‘Socrates’Silence’. 52 pace e.g. Brickhouse andSmith (1989), esp. pp.82– 53 Sokrates’ synêgoroi are attested in Xen. Apol. 22, andI agree with Hansen that there is no reason whywe should assume that the synêgoroi pleading on the side of Sokrates were an invention byXenophon. Onthecontrary, their participation in thedefence squares badly with theimage ofSokrates aspropagated bybothXenophon andPlato: inmostother respects Sokrates is depicted as staunchly opposed to employing the strategies of normal court practice, forexο ε ςandflattery of thejudges. ample theappeal toἔλ 54 See, above all, Dover’s discussion of theartof êthopoiia andhis interpretation of Dion. Hal. 77). 9 (1968: 76– Lysias 7–

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butalso on whosays it.55 The creation andrhetorical projection of the gullible but law-abiding Euphiletos whodelivered the defence speech Lys. 1 are often represented as theprime example of howpersuasive this device could be.56 But in public actions where it waspossible for several persons to join forces as prosecutors, it might notalways be necessary to goto the lengths of creating artificial personae for thelitigants, andinthose cases where theprosecutors werealready well-established figures on the political scene this might not even be possible. However, a wellcomposed teamof publicly known prosecutors might employ a device which would have a very similar effect to that achieved by êthopoiia, namely that of distributing arguments between themselves sothat theright type of argument ended upwith the right sort of person.57 Anargument on the defendant’s deficiencies in the military field might carry more weight if voiced bya respected general; anattack onthedefendant’s family might prove tobemorepersuasive if putinthemouth of somebody whowasknown to have been involved in direct dealings (whether hostile or friendly) with the persons discussed; comments ona defendant’s political misdemeanours might make a deeper impression ontheaudience if theperson whovoiced them waswell established as an authority onthe political scene, andarguments pertaining to religion would be far more effective if voiced by a member of a priestly family.58 The strategy of distributing arguments carefully between a gallery of well-known persons, each of whomwould carry authority within a particular field, mayaccount for other short synêgoriai which seem to pursue one specific line of argument. Lys. 14,forexample, focuses overwhelmingly onthepersonal misdemeanours andpast history of thedefendant andhisfamily, andthespeaker makes a point of hishaving hadaccess to knowledge that is not universally available.59 Likewise, the anonymousspeaker of Lys. 15concentrates hisattack almost exclusively onthegenerals whoare expected to appear insupport of thedefendant. Although there is a certain overlap between thetwospeeches, theteam of prosecutors seems to have operated with a clear division of labour. As noted above, the speaker of Lys. 27 focuses exclusively on the question of conviction, timêsis, andthe general effects of the

55 This wasrecognized bycontemporary theorists: Rhet. adAlex. 1437a-b andArist. Rhet. 1398a. Fora recent discussion withreference toAntiphon’s speeches inparticular, seeZinsmaier (1998: 404). 399– 56

e.g. Carey (1994b: 40– 41).

57 Ontheimportance of casting’one’s trial, seeHall (1995). Fora moredetailed discussion of the ‘alternative toêthopoiia, see Rubinstein (forthcoming). useof synêgoroi as an 58 Although Aristotle claims thatoneof thethree kinds of proof through thespeech resides inthe character of thespeaker (Rhet. 1356a), hedoes notpaymuchattention tothequestion of howto match theright argument to theright sort of person, butheissues a warning inhisdiscussion of gnômologia inRhet. 1395a. Hismessage is thatoneshould notattempt a type of argument that is notsuitable toone’s ageor toone’s knowledge. 59 14.46. Wedonotknowtheidentity of thespeaker of Lys. 14,buthisclaim in 14.2 thathisfather hadbeena personal enemy of theelder Alkibiades could hardly have beenmade bya nobody (it takes somepolitical andsocial standing tohaveenemies inhighplaces), andthespeaker asserts μ εν ο γ ο ύ ς ...) ἡ ν ρ ὸ η ν ο π ν ο τ ιτοῦ α λ ά α ὶπ that hehaslong regarded thedefendant as a villain (κ

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verdict, and it is likely that others have already dealt with the bulk of the accusation.60

If themaintaskof a synêgoros prosecuting ina public action wasdefined ashis contribution to the pool of knowledge available to thejudges, there is no reason to be puzzled over the seeming independence of each synêgoros from the rest of the prosecution team. It is apparently enough for thesynêgoros to explain his appearance by professing that he is capable of providing a specific nail for the defendant’s coffin, andsucha contribution does notnecessarily imply that thecontributor hasto side unreservedly with themainprosecutor ortherest of thesynêgoroi onhisteam. Howoften wasthestrategy of a rhetorical division of labour actually employed? This cannot be determined with certainty, not least because we possess so few speeches that were delivered onthe same side in the same public action. The only pairs preserved are Lys. 14 + 15 (presumably by the same author, see Carey [1989: 148]), Dem. 25 + [26] (generally presumed notto be bythesame author), and 147– Hyp. 1 + Dein. 1, of which the latter two pairs were delivered by synêgoroi elected by the Assembly. We can only guess at the factors which made the dêmos choose these particular persons as prosecutors. Nodoubt, their political expertise andtheir access tospecific knowledge didplay a part, butit is impossible totell whether these were themost important criteria. However, there are at least some indications that the (presumably un-elected) prosecution teams involved in the trials of Andokides, Sokrates, andthe younger Alkibiades were notaltogether exceptional. Weknowofquite a fewinstances where it maybe inferred that the logographers hadbeen commissioned to write speeches for several persons engaged in the same public action. Unlike private suits where both sides were allowed a second speech, andwhere it is reasonable to assume that a logographer would often (butnotalways: seeDem.45 and[46] withTrevett [1992: 74]) becommissioned towrite bothspeeches, public actions didnotallow either 73– party a rejoinder, except onthequestion of thepenalty inagônes timêtoi. Wedonot know howoften clients would commission speeches onthe timêsis. It mayindeed have happened, but the little weknow about this section of anagôn timêtos suggests that it wasnormally an improvised event where the parties would make their suggestions on the basis of thejudges’reactions as gauged both through dicastic thorybosandthrough their first vote onthequestion of guilt.61 Having a speech prepared in advance would prevent thelitigant from adjusting hissuggestion to themoodof theaudience asgauged through their initial reactions. Onthese grounds, it is a reasonable inference that pairs of speeches written for the same public action may indicate that the logographer hadbeen commissioned to 60 It is hardly possible thatthis speech wasdelivered inthetimeallotted totimêsis, since itappears 9 and 13 that thejudges still have to make uptheir minds onthequestion of guilt. from e.g. 8– However, weknowthatsynêgoroi didintervene inthetimêsis section ofagônes timêtoi. Onthis issue, especially in regard to private actions, see also MacDowell (1985: 526).

61 On the question of thorybos and how the signals might help a litigant to decide on a further 15) whodiscusses howthorybos might help a defendant strategy, see above all Bers (1985: 14– in a homicide trial to decide whether to stay or runaway after his first speech. Hispoint was taken upbyMacDowell (1990: 24). Onthenecessity forthedefendant to improvise, see also MacDowell (1985: 526).

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write speeches forboth themain litigant andat least oneof hissynêgoroi. In some cases where the logographer washimself actively engaged in the trial, it maybe assumed thathedelivered oneof thespeeches himself, while carefully designing the

other speech (or speeches) to supplement hisownarguments.62 Most of the evidence for the production of multiple speeches by one logographer is fragmentary andshould be handled with some caution. There is always the possibility that later compilers of forensic oratory would assign twospeeches deliveredonthesameside inthesametrial tothesamelogographer, although thespeeches hadin fact been composed by twodifferent authors. However, this observation cuts both ways: many of the titles of lost speeches are recorded in the works of various lexicographers whocite their authority for a particular phenomenon as ‘in the speech of so-and-so for (or against) so-and-so’. They are notalways so scrupulous ininforming usonwhether there wasonlyonespeech ortwo,andwhether the word or argument of their entry appeared in the first speech or in the second one. This is clear fromthelexicographic references to, forexample, Lykourgos’speeches against Lykophron (frs. X-XI [Conomis]): of the 14 references to the pair, only ᾽ . There is thus a distinct possibility that we three refer specifically to speech αor β cannot identify all pairs of speeches actually composed byanygiven logographer.63 ᾽ Among thefragments of theworks of Lykourgos there aretwospeeches written for delivery in the eisangelia against Lykophron, one of which was presumably 107] cat. no. delivered by Lykourgos himself as a synêgoros (Hansen [1975: 106– 119); Hypereides wrote twoprosecution speeches forthetrial of Aristagora (frs. VVI [Jensen]).64 Heprobably also wrote twospeeches forthedefence of Lykophron: 62 cf. the remark made in Dion. Hal. Dein. 11 on the speech for Diphilos (fr. XLI [Conomis]) proposing an honorary decree. The speech wasapparently delivered in the Assembly (it is γ ρ η ο ικ ό μ ), andDemosthenes is called to the bêma as Diphilos’synêgoros at ς η classified as δ the endof the speech. Dionysios argues that, for that reason, Diphilos’speech should not be φ ῷ ε ιν ρ ά εὐ ν ο γ ο ῦ ν τ α τ ὰ τ ω ςο ὕ τ ιμ ν ὲ ὰ ιτ α ςμ ιεἶν ascribed to Deinarchos: ἀ α ν νδ ο α ὲοἶμ π ίθ . Thegeneral validity ῖν ιιδ ε τ π α ερ μ ῳ ρ χ ο υλαβόν η ο ν τ η γ ά , λό ὸ ν σ ν Δ θ ο δ Δ έν ρ ειν ὰ ίλ ὲπ α Δ ιφ

of Dionysios’common-sense argument is opento debate. ρο φ ρ ν Λ ο κ ό υ ςβis thatthere π ὲ 63 Oneof thearguments forrejecting Hypereides astheauthor of ὑ ’ Thecase is noother evidence forHypereides’having composed twospeeches forthedefence. ofLykourgos’speeches against Lykophron shows howdangerous suchanargument fromsilence canbe. υwasa graphê conρ τ σ ο α ίο σ π ) that theaction ἀ ρ ία ρ υ τ μ α 64 Harpokration’s information (s.v. δια ρ ο σ τ α π σ ίο υ . This flicts withAth. Pol. 58.3 andindeed Harpokration’s ownexplanation s.v. ἀ ίο τ α σ υwasa dikê (but see Hansen ο σ ρ π led Hansen (1991: 117) to conclude that the action ἀ [1978: 42] fora different view). Rhodes (1993: 656) points outthat thenature of thesuit points to a graphê brought by ho boulomenos: there would have been noobvious individual injured 95]). Lipsius’claim (1905–15: 911 n. 39) that thetwospeeches party (cf. Whitehead [1977: 94– π εὶ VI.20 (Jensen) which runs: ἐ were notwritten for the same trial rests exclusively onfr. V– ρκ α ὰ ὶτο ὺ ο π ςἀ ι·εἰγ α ν ῆ ρ θ α χ ιπ α ν ῶ γ ἀ ν ῦ ν ῷ ὶτ κ τ α ν ἐσ ὶὁτ τ ό τ ω ῆ ο μ ςδω ρ ςἁρμ ο ία εν ςνό ξ ίω ς ὴ μ δ κ ο ῶ ιδικα σ ν φ ρ ά γ ψ ι, ἐὰ α α θ υ σ γ ιν λ ῳ π ά ό ν τ α ν μ έ ςξεν ο β λ ο υ ῷ κ ε ία ν ἐξ ςεἴρη εῖν α ιτ ; Lipsius does ν ιο ίκ α δ ρ ὸ α ςτ ᾽Ἀρισταγό τ α ικ τ ν ἐσ ό ερ ν α α ι, π ρ ῶ τ γ έν ὸπ ῶ τ ςο ν ὐφ ο ευ ἀ π ο π εφ notexplain howhearrives at hisconclusion. Forthespeaker adduces thelawondôroxenia in order to provide an argument a fortiori, which does not imply that the action itself was for dôroxenia –quite the contrary, in fact (see e.g. Dem. 54.24 for a similar type of a fortiori argument).

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one to be delivered by Lykophron andthe other byone of his supporters (perhaps by the Theophilos whois called to the bêma in Hyp. 2.20, or maybe by yet another synêgoros whomayindeed have been Hypereides himself –wecannot tell).65 Furthermore,

hewrote twodefence speeches fortheapophasis against Chairephilos (P.

Oxy. 2686 andfrs. LXI-LXII [Jensen]).66 Deinarchos also appears tohave produced some public speeches in pairs: heproduced twoprosecution speeches for a public action against Polyeuktos (frs. III, IV [Conomis]), andtwodefence speeches to be delivered in an apographê brought by Kephisophon (frs. XXI, XXII [Conomis]). The material presented in this section does notpermit firm generalizations on

rhetorical strategies in those public actions which involved multiple prosecutors. Notonly is theevidence wehave tooslim to provide sufficient basis forsuchgeneralizations, but the distribution of arguments between different speakers mayalso have varied considerably according to the composition of a given team of prosecutors, andthe level of advance cooperation between individual prosecutors may have varied significantly fromcase tocase. Weknow, forexample, that atleast two logographers, Deinarchos andHypereides, wereinvolved incomposing thespeeches delivered against Demosthenes intheHarpalos-affair. What can be concluded from this investigation is that synêgoroi who assisted main prosecutors in public actions donotseem to conform to the narrow modern description ofsynêgoroi asthepartisans of themainlitigant. Their speeches suggest that such synêgoroi most often preferred to represent themselves as independent agents whose mainpurpose wastosupply further arguments against thedefendants, arguments which they were in an especially good position to provide, without necessarily siding unreservedly with themainprosecutor. Thus they should notbe regarded merely as a backing group, nordidthey act ascharacter witnesses for the mainlitigant. Despite theinequality inthedistribution oftherhetorical burden among the different participants ona prosecution team, thebasic relationship among the speakers wasessentially egalitarian. It canalso beconcluded that there wasa good deal of flexibility when it came to distributing the rôles among the participating prosecutors. The teams were by no means bound to assign the lion’s share of the pleading to theperson whohadassumed legal responsibility fortheaction. Theeffect of thistypeofteam-pleading would havebeentoreduce theconspicuousness of the individual whohadinitiated the legal action. The primary rôle of prosecution synêgoroi in public actions wasto endorse the mainprosecutor’s case against thedefendant, rather than to appear insupport of theprosecutor as a person.

65 pace Engels, whoasserts (1989: 198) that Hypereides haddeliberately chosen the low-profile rôle of logographer inorder to highlight thepreposterous nature of Lykourgos’action. Onthe problem of determining theauthorship of P. Oxy. 1607, see Chapter 2 n. 29. 134) argues that Hypereides wrote thetwospeeches forChairephilos to 66 DeBruyn (1995: 133– , and ία ν ο τ ο . κα χ ειρ τ α bedelivered intwodifferent trials. Shebases herargument onHarp. s.ν infers from theentry that Hypereides’ speech contained allusions toprobolê. But she fails to note that Harpokration refers to Dem. 21 as well, andthat the lexicographer says only that α τ α χ ο τ is used in connection with ν ία ειρ ο occurs in Hypereides’ speech. κ ία ν ο τ ο κ α τ α χ ειρ apophasis about theAssembly’s acceptance ofthereport submitted bytheAreiopagos andtheir decision to commit thedefendant to a trial before a dikastêrion (Dein. 2.20).

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3. Defence

teams

in public actions

One feature is common to the preserved prosecution anddefence synêgoriai: both types contain more than just a simple and brief endorsement of the main litigant’s cause. Like theattested prosecution synêgoroi, thesynêgoroi appearing onbehalf of defendants produce real argumentation on issues of procedure,67 the facts of the

case,68 and general legal principles.69 However, the evidence for defence synêgoroi in public actions is difficult to deal with, for tworeasons. Firstly, only five, possibly six such synêgoriai are preserved (Lys. 5 and[20], of which thelatter maycontain twosynêgoriai,70 Dem. 18, Hyp. Onbehalf of Lykophron, no. 2 and3 Onbehalf of Euxenippos), of which two, Lys. 5 andHyp. Onbehalf of Lykophron, no.2, survive only infragments. Thus, we 67

5; Dem. 18.14–16; Hyp. 3.1–10, 31– 32. Lys. 5.4–

14; Dem. 18passim (Demosthenes’ account of his ownactivities serves to 68 [Lys.] 20.6, 8, 11– counter the allegation that theclause justifying thehonours bestowed onDemosthenes ἀ ρ ετ ῆ ς θ ία γ α ςandὅ α τ τ ελ ιδια δρ ε ν ῖκ α ὶἀ ῳ was α ὶλέγ κ ω νκ α α εκ μ ή ῷ ὶπ ρ ἕν δ ά τ τ ντ ω ρ ὰ ισ ἄ τ τ α 50]); Hyp.ὑ 59; Aisch. 3.49– π ρΛ ὲ ᾽fr. I cols. 1– υ 3, fr. XIII, fraudulent [Dem. 18.57– κ ρ φ ό ο ν ο ςβ

26 3.14– 32; Dem. 18.53– 20, 31– 5, [20].5–10, 19– 58, 110– 69 Lys. 5.2, 4– 122; Hyp. ὑ π ρ φ ρΛ υ ὲ κ ό ο ᾽ ν ο ςβ 40. fr. V, 3.31– 364) suggested that [Lys.] 20 contained twosynêgoriai delivered in 70 Wilamowitz (1893: 363– 10)delivered bya speaker whose identity andrelationsupport of Polystratos, the first ([20].1– 36). His ship with Polystratos is unknown to us, and the next by Polystratos’ son ([20].11– suggestion haslater beenaccepted asconvincing byGomme, Andrewes andDover (1981: 201– 206). In [20].4 the sons of Polystratos are referred to in the third person, andone of them is 27 thespeaker refers to his achievements in reported to have served in Sicily. But in [20].24– Sicily inthefirst person –andthespeaker mustbeidentical with thesonreferred to inthethird person in [20].4. While a litigant maysometimes refer to himself in the first person plural, I have never come across anexample of a speaker whorefers tohimself inthethird person (ό μ ὲν γ ἦ ν , [20].4). While Polyeuktos is referred toconsistently asὁ ρἐ ὰ ν Σ ε ικ λ ίᾳ ρfrom[20].11 ή τ α π andWilamowitz mayhave onwards, heis referred to byhisnameintheprevious paragraphs – a point whenhecomments on([20].1) ‘weder redet manso vonseinem eignen vater, noch gibt einjunger manndenherren heliasten solche belehrung’. Gernet (1926: 61) regarded Wilamowitz’suggestion as seductive, butrejected it first andforemost because of what Wilamowitz sawas a textual problem in([20].10–11). Wilamowitz found the κ α ίτ ο ιin theopening line of [20].11 troublesome (1893: 364) andsuggested that there might be a lacuna inthepreceding text, containing a proper ending of the first α ίτ ι ο speech andtheopening line(s) of thesecond. However, Denniston (1954: 558) notes thatκ mayoccasionally be used at theopening of a speech, presumably ona rather aggressive note – a tone which is indeed sustained intheremainder of [Lys.] 20 (see also Dover [1968: 58]onthe aggression conveyed bythis particle). And,aspointed outinChapter 2: 1,theabsence ofproper prooimia from law-court speeches –main speeches as well as synêgoriai –is a well-attested phenomenon. As for the allegedly missing bit of [20].10, it must be noted that the passage [20].9–10 as it stands contains a plea for acquittal as well as an admonition to thejudges: a perfectly natural wayof finishing a synêgoria andmaking wayfor the next speaker. Wilamowitz’attractive solution maythus beapplied without tampering with thetext atall. Ontheother hand, it would be difficult to maintain that the entire text wasdelivered byonespeaker only without correcting the text as it stands, or without assuming that something went wrong in regard totheuseof personal pronouns andnames between delivery andcirculation of thespeech (cf. thediscussion of Dem. 34 referred to inChapter 2: 1).

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have only limited information as to howdefence synêgoroi defined their owntask. While it is possible to base the investigation of prosecution synêgoroi on the actual speeches delivered by them, the inquiry into the rôle of defence synêgoroi has to rely toa fargreater extent onwhatwill henceforth bereferred toashostile evidence, namely those passages in which prosecutors anticipate andcounter arguments expected from the synêgoroi of the defendant. For convenience, information derived from speeches delivered bydefendants or their synêgoroi will be referred to as friendly evidence. Secondly, the five or six preserved defence synêgoriai form a remarkably heterogeneous collection compared totheextant prosecution synêgoriai, andwhile this mayserve toincrease ourawareness of thevery diverse tasks of defence synêgoroi, it also makes it far more difficult to drawgeneral conclusions of thekind setoutin the previous section on prosecution synêgoroi. Again, the analysis of the extant synêgoriai must be supplemented with hostile evidence found in the prosecution speeches, along with the fewbutprecious passages in which defendants comment ontheir ownsynêgoroi. Both friendly andhostile evidence suggests that defence synêgoroi appeared together inconsiderable numbers. Inhisowndefence speech (2.179, 184) Aischines lists as his synêgoroi his father, two brothers, two brothers-in-law, some friends, ἡ λ ικ ιω τ νhere, see Rhodes [1986: 135– ῶ ν ῶ contemporaries (for the meaning of τ 136]), andother associates. Inaddition tothese, Aischines introduces Euboulos and κ τ ῶ ν Phokion, of whomoneis torepresent the‘sensible menengaged inpolitics’(ἐ ) while theother will speak as a representative of ρ ν ῶ ρ ό ν ω ν ν δ ἀ φ π ο ν κ λ α ῶ ιτ ὶσω ικ thegenerals. It is worth noting that these twosynêgoroi aredistinguished from the rest of Aischines’ supporters, including Nausikles, whoare designated as friends (φ ίλ ο ι) andcontemporaries.71 The synêgoros in defence of Kallias, who delivered Lys. 5, is but one of several.72 Hypereides closes his synêgoria for Euxenippos with an instruction that the latter call his friends to the bêma, andit also appears that Hypereides’ speech has beenpreceded byanother synêgoria.73 Andokides hasatleast twosupporters, Anytos andKephalos, in addition to several elected supporters from hisphylê (1.150). Because the defence synêgoroi in each case seem to have been so numerous, some of them, at least, cannot actually have said very much.74 This mayin turn suggest that such synêgoroi were performing walk-on parts rather than the parts of real actors; that is, their main task wasnot to produce argument, but rather to be there bythedefendant’s side in order to convince the audience that heenjoyed the respect andgoodwill of as many different people as possible. Indeed, there can be δ α ν ίω οκ μ ὲν... Φ ν ο λ υ ο ᾽... ὲconstruction: Εὔβ ὲ... δ ... δ 71 Thedistinction is clear fromtheμ ὲν . (2.184). λ τ νκ ω ίλ φ ν ῶ ὲτ κδ ἐ ν ιἄ ε κ ρ ίζ ν γ , ἐξή ω ο ετ ία ςἠ λ λ α ί, Κ α τ σ ε ρ ςδικα δ ν ἄ ο ,ὦ τ ς α μ ώ σ ῦ τ ο ν ὲ π 72 Ε ὸ λ ὶἄλ υτιν ἰμ ερ ο ςἢ

(5.1). α μ μ έν ο ικ α ὶτ ρ ὰ ὰ νεἰρη π τ νἄλ α ῶ ω λ ... ν ε ν εἶπ ω έγ ο ῦλ ο ρ 73 3.15: ἀ ό τ ερ ςἐμ ρὁπ ᾽ὅ λ λ π ε 74 So, for example, Latte (1968: 282): ‘Es kann sich kaum ummehr als ein Leumundszeugnis gehandelt haben, schon diegroße Zahl derSprecher verbietet, aneinEingehen aufdenGegenstand des Prozesses zudenken.’

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no doubt that the display of solidarity was one of the tasks taken on by defence synêgoroi, andthat the numerical strength of their appearance hada cumulative effect; butthis is nocompelling reason forbelieving that forthemajority of defence synêgoroi, being onshowwasmore important than theverbal arguments theycould contribute.75 Letmedrawtwomodern parallels tosubstantiate this point. It is notunusual for modern academic conferences, particularly those based around panel contributions, to operate with allocated time slots of between, say, 10 and20 minutes for each presentation. The assumption is that a speaker will be able to putacross a relatively complex scholarly point andcorroborate it in the time allocated to himor her, provided that the problem to be discussed is sufficiently well defined and the structure of the presentation reasonably tight. True, in most cases such presentations will be given to audiences of professional academics, butvery often the audience will include scholars whoare notspecializing in the same field as the speaker. Forcomparison, it mayalso be mentioned that theaverage duration of a Danish 88 was 2.9 court days (a court day begins at 9.30 trial byjury in the period 1986– a.m. andlasts until 3 or4 p.m., including a lunch break of onehour), withmorethan half of the trials lasting two days or less (Wilhjelm 1990: 125). This includes the case presented bytheprosecutor, thetime spent oncross-examination of thedefendantandthewitnesses, thereading aloud of written evidence andtheactual speeches delivered by the advocates, including a set of rejoinders. The time spent also includes thesumming upbythepresiding judge, thevoting bythejury and,incase of conviction, the further procedures concerning thepenalty. If thejury returns a verdict of guilty, further speeches are given on the question of penalty, andthejury votes again, this time after deliberation together with the professional judges.76 I have included the Danish example only as a warning against unrealistic a priori assumptions as to howmuch (or howlittle) canbe said in thecourse of a court day. Assuming that Athenian defence teams were ingeneral well organized andhad coordinated their strategy, it is perfectly possible thateachindividual speaker could make a significant contribution to the defendant’s case, even if he happened to be one of a large number with limited time at his disposal. If thesynêgoros hada particular part to play, along the lines suggested above for prosecution teams, this would also provide an adequate explanation for the large defence teams. The evidence does indeed suggest that there were different categories of defence synêgoroi, each 75

76

Hypereides’contribution to the defence of Euxenippos (Hyp. 3) contains sustained andvaried legal argumentation andcanhardly bedismissed asjust a public demonstration of support. Keil (1902: 249) reckoned that the speech could be delivered in about 20 minutes. Some of our extant prosecution synêgoriai arealso veryshort indeed. According toKeil’s calculations, Dein. 3 would have taken about tenminutes to read out(‘deklamatorisch aber nicht langsam’[1902: 254]), whilst theslightly longer speech, Dein. 2, would have taken about 13minutes. There are noatechnoi pisteis inanyof these speeches, which might otherwise have added to thelength of thesynêgoros’contribution. The Danish criminal justice system is adversarial andbased ontheprinciple that trials must be conducted orally (Lawon the Administration of Justice § 148). Witnesses areexamined by the parties (§ 872), butthethree professional judges andthejury canasksupplementary questions (§§ 873 and875). Written evidence must be read out (§ 879).

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of whomhada specific rhetorical task tocarry out.Thedivision of rôles between the defendant anda variety of supporters is also suggested by Philokleon’s description of a trial (Aristophanes Wasps 562– 575), where thejudges will listen to all sorts of voices from menpleading foranacquittal (ἀ ᾽ἀ λ λ ρ κ ο μ ῶ α ιπ ά σ α ςφ ω ν ὰ ςἱέν τ ω ν ε ἰς φ ἀ π ό ευ ), some wailing, some recounting myths or fables, and some telling ξ ιν jokes.77

Thespeaker of Lys. 14is expecting a considerable number of people to plead in 22 hedivides these unnamed supportof theyounger Alkibiades. In 14.19– ers into three groups, which he takes ononebyone: first, resuming his attack from 14.16, hecomments onthefriends of thedefendant whomayhope to gain prestige by securing his acquittal (ε ᾽ἐκ ἰδ εῖν ο ιδοκο ῦ σ ελ ιβ τ ίο υ ςεἶν ζ ο α ν ισῴ τ ε ςτ ο ὺ ς φ ίλ ο υ ς , 14.19), then on his relatives (τ ιν ε ςτ ῶ νσυγ γ εν ῶ ν , 14.20), and, finally, on ε ρ ιν ν , 14.21), who may well want to turn the occaω ν χ ν ἀ τ ςτ ῶ ό some magistrates (τ π ίδ ) of their ownpower.78 It is clear from the following ειξ ιν sion into a display (ἐ paragraph that thespeaker is thinking of thegenerals in particular, whoareexposed to a more sustained attack fromthespeaker of Lys. 15. Thethree groups arerepresented here asquite distinct. They areeither friends, orrelatives, orpeople withpolitical clout; andthelatter donotnecessarily enjoy any special relationship with the defendant. The importance of the boundaries separating the groups fromeach other should notbe underestimated (Konstan [1997: 53– 67]), although twoof thegroups, friends andrelatives, areoften lumped together in oursources.79 This suggests that these twogroups hadrhetorical tasks which were shared, and there is evidence which indicates that both types of synêgoros would engage inbegging onbehalf of thedefendants. However, it will beargued that their different standing inrelation tothedefendant mayhave influenced thewayinwhich the audience would respond to their arguments. defence

77 In this passage, Philokleon is probably describing typical features of a single trial. The defendantis referred to inthesingular after thedescription of thediverse defence speeches: ι εὐ ρ π α ιδ ,τ ὰ θ θ ά ὺ α μ εσ ςἀ ν ώ έλ κ ει π ειθ υ ςἀνα τ ο ύ ο τ ὴ μ ν κ ἂ μ α ι ὼ δ ό , ἐγ ς ςχ ὺ ῖςτῆ ἱε ειρ ο ςυ ὶτ α εία λ ςκ η τ ὰ ςθ ᾽᾽ἀκροῶ η χ τ ᾶ α β ι κἄ λ ρὑ ᾽ὁτεα τ ὴ μ α π ρ·αὐ π ειθ ὲ τ ν ῶ ᾽ἅ θ ν τ ὰ δ ὲσυγκύψα η ῆ ςἀ ω ν ςεὐθύ ν π ο λ ῦ σ ετρέμ α ι λ εῖμ ο ιβ τ ν νἀ εὸ ρθ ε π σ ὥ ·τ The only indication to the contrary, i.e. that Philokleon is · describing his experience from a 558 to a host of people whoarehanging around range of different trials, is thereference in 552– τ κ ά ο ις ) inorder to influence thejudges before they ῦ σἐ ηρο π ὶτο ῖσ ιδρυφ near the enclosure (τ enter thecourt room. However, ᾽ these people mayhave beensupporters of thedefendant (inreal life, such entreaties mayhave been engaged in particularly by fellow magistrates whose own chances would depend ontheoutcome of thepresent action; see Chapter 3: 1a). There is other evidence that supporters would try to influence the verdict before the beginning of the trial by approaching thejudges in theagora, e.g. Aisch. 3.1 andDem. 19.1. For synêgoroi bewailing their ownfate inaddition to that of thedefendant, see e.g. Hyp. 1 col. 40 (referring to thetears of Hagnonides, whose owntrial maydepend ontheoutcome of thecase against Demosthenes). I amgrateful to Prof. D. M. MacDowell for having drawn myattention to the problems connected with the interpretation of Philokleon’s account. ι, ο εν μ ύ ῷ ἐ π ίδ ειξ ιο ο εω μ ςπ ὐ α η τ θ ῶ ιν μ σ ῆ ά τ ν ν δυ ὲ ν ο ιν τ ῶ β ςἑαυ ν τ ω ν ρ χ ό 78 ἐὰ ἀ ν ν δ ῶ ε έτιν ςτ ῷ η κ ό τ ρ τ ζ α ε ν α ιν τ ν δ α ύ α ι. ςσ ῶ ςἡμ ν ερ α ὺ φ ςφ α ὶτο ὲὅ ιδ τ ικ ιλ ο μ εν ο ύ οτ ιμ 79 e.g. Dem. 21.182, 49.10–11, [59].1 17; Hyp. 2.10, 3.13.

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21 the three groups are expected to appear each for a different In Lys. 14.19– reason. Alkibiades’friends are there to display their ownmoral worth byhonouring the obligations of friendship (ε ἰδ ᾽ἐκ ελ ο ιδοκο εῖν ῦ σ ιβ τ ίο υ ςεἶν α ικ τ λ . 19), his relatives in order to beg (ἐ ξ α ιτ ῶ ν τ α ι) thejudges to release him, andthe generals because they arephilotimoi (here in a negative sense; see also Carey [1989: 161]). The division of thedefence synêgoroi into these categories is notspecific to this particular prosecutor: wefindthesamekindof distinction between individual groups notonly in other prosecution speeches,80 butalso inspeeches delivered bydefendantsthemselves.81 Andattheendof hisspeech against Timarchos (1.194), Aischines plays upon the notion that there were three distinct types of defence synêgoroi: Synγ ρπ ῳ ὰ ρ α ία ο ύ τ êgoroi of three kinds will be present to assist him’(τ σ ιν ἐ κτ‘ρ ιῶ ν r elatives, ρ triad γ ). However, ο ο ι friends, and ή instead of the expected ν υ νσ ῶ εἰδ ‘ politically active citizens’thethree groups mentioned are 1)wastrels, 2) prostitutes, and3) the prostitutes’clients. Theelement of surprise andtheskilful variation ona familiar theme are what gives this passage its rhetorical power. Despite thefact that so fewdefence synêgoriai have survived, eachof thethree categories is represented in the collection. The speaker of Lys. 5 claims to be a family friend of the defendant standing trial (5.1),82 while at least part of [Lys.] 20 wasdelivered by one of the defendant’s three sons ([20].35). But neither Demosthenes (18) nor Hypereides (3) claims to be related in any way, by blood or by friendship, to the persons they are defending. They belong, undoubtedly, to the third category of synêgoroi, those who spoke with some authority derived from their prominence in the political life of thepolis, the ο ρ ῆ ά τ ν τ ο τ τ ἱτ ὰ λ ςπ ό εω ε ςπ ςreferred to in Lys. 30.31. Wehave nomeans of determining therelationship between Lykophron and the speaker of Hyp. On behalf of Lykophron, no. 2, andit would be imprudent to trust Lykophron unreservedly when he seems to suggest in 2.19 that all ἢ ῶ ν ο ἰκ είω ν those whomaysupport himwill beeither his relatives or his friends (τ support additional from receive would φ ίλ ). It is notunlikely that Lykophron τ ν ω ῶ ν other synêgoroi who were not necessarily his personal friends but who had their 172below). ownpersonal political axe to grind (onthis point, see further pp. 163– example of a synthird a In the first ten paragraphs of [Lys.] 20 wemayhave êgoros who is not related to the main litigant by blood or friendship, but who has agreed to throw his political weight behind the defendant. This speech will receive more attention presently, since it mayshed some interesting light on howdefence synêgoroi might divide different types of argument among themselves. γ εν γ ε ίλ ῖςandφ ο ι); υ ); [Dem.] 59.117 (σ ες τ ν ο τ τ 80 Lys. 30.31 (φ ά ρ ίλ ῆ ο ιandο ό λ τ ε ω ςπ ςπ ἱτ ὰ ρ π ο σ ή ιλ τ ίᾳ εφ ε έν ιμ ή τ εγ ἱμ ) and 138 (ο ία ιλ Lyk. 1.135 (people whoare claiming ties of φ ή κ ο ν τ ε ς , whoareδειν ο ίandalways helping defendants inreturn formoney). ίλ ο ιand ό , several φ ς , one στρατηγ ό ικ ς ιτ λ ο ρπ ὴ ν 81 Aisch. 2.179 (relatives) and 184 (one ἀ ά ἱδυν ἡ λ ικ ιῶ τ α ι); Hyp. 2.10 (ο ίλ ο ιand, perhaps asdistinct from these twogroups, ο ἰκ εῖο ι, φ μ εν ο ιεἰπ εῖν ). Note that Hypereides, whodoes nothimself claim to be a friend or relative of ίλ ο ιand present his Euxenippos, ends his synêgoria by instructing Euxenippos to call his φ ητ ῆ εδ ςμ ῆ ςἤ ῖνἀρετ μ ε ιν ςὑ ἵτ children (3.41). Andokides, however, introduces only those ο γ ίσ η τ ςε , claiming that hehasnosurviving relatives ν α σ ἰςτ ο ἔδ ν ο ῆ χ θ ὸπ ο ν ἔλ ο εγ λ ςτ έτ ερ ὸὑμ whocan plead for him(1.148–150). ί... ρ τ α π ῷ 82 κ α ίλ ὶφ ο υὄν τ ητ ο ο ὶκ ὶἕω α ςκ α ςἔζ ὶἐμ

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Thefirst tenparagraphs ofthetextgive animpression ofasynêgoros whospeaks with a certain degree of authority. Hesets outbyadmonishing thejudges that they must not be carried away by their ownfeelings of hostility against the Four Hundred as a group, butrather assess each individual member onhis merits andmake sure thattheir anger isdirected atthepersons whohavebeenactive incommitting crimes ([20]. 1, 5– 6). The loyalty of Polystratos towards the polis and his fellow citizens is vouched for by the members of his phylê, and can be further supported by arguments from probability, based on the behaviour andmotives of the defendant and 4). The prosecutors are quickly written off as persons who proshis sons ([20].2– ecute innocent citizens whilst letting the guilty off in return for money ([20].7). And,finally, thespeaker generalizes ontheproblems of guilt andresponsibility, and gives his ownopinion on who should be punished and who should not ([20].8–10). Although the speaker voices clear support for the defendant’s case, it is worth noting that he stops short of delivering unconditional praise of his character. The

refutation of theprosecutors’arguments is rational andlevel-headed. Twopassages inparticular suggest a certain reservation onthe part of the speaker. In [20]. 1– 2 he backs his claim that Polystratos waswell disposed towards thedêmos notby a personal endorsement butwithreference totheelection of thedefendant byhisphyletai whoshould be best qualified todiscern, inregard to their ownmembers, what sort ‘ people they are’(ο of ἱἄ ρ ᾽ δια ὐ ερ τ νὁπ ῶ ο ῖο ίτιν έ ςε ). The second passage contains a refutation of thecharge that Polystratos is an ιν σ oligarch ([20].3– 4). Rather than denying this emphatically and adducing positive evidence to thecontrary, thespeaker claims that this is unlikely, given Polystratos’ age and the fact that neither he nor his sons were atimoi, nor hated by the people in any other way. This synêgoros has taken sides; yet he seems reluctant to get too deeply involved in Polystratos’case. Thetone of thespeech changes in [20].11, whenthe(second) speaker attempts to tackle theallegation that hisfather wasa relative of thearch-traitor Phrynichos. Headds a challenge: ‘andyet, if anybody wants, let himtestify during myspeech ῷ ῳ τ γ ῷ λ ό α ίτ ο ιε ο ύ ν λ α τ ι, ἐ ετ that myfather wasa relative of Phrynichos’(κ ἴτ ιςβ ). Having disposed of the Phryniῳ η μ ῷ ρ ρ σ α τυ ά ν τ ίχ ρ υ ω ὡ γ κ Φ νὄ α τ ςἀ α μ ῖο ν ν α ἐ chos issue, the speaker is notcontent withjust denying that his father was anoligarch: the addition of ‘how could he have been more democratically minded...’ (π ῶ ςδ ᾽ἂ γ ν έν μ ο ρ τ ο ο ικ ώ η ιτ τ ε ς...) in [20].13 is farmoreassertive thananyarguο δ ment made by the first speaker.83 The songoes on to elaborate a number of points already made by the previous synêgoros, but nowthe points are highly charged emotionally. Thespeaker represents himself as directly affected bythebaseness of the prosecutors ([20].15–18), andthe phrase shouldn’t webe suffering a grievous ῶ ‘ο ) andother appeals to thecomςο ν ὖ wrong indeed...’ (π ν ε ο ὐ κ ιμ χ σ ἂ ν ά ὰ π δ ειν passion of thejudges occur repeatedly.84 From ([20].23) onwards the speaker diverts thecourt’s attention away from his father in order to highlight the achievements of himself and his brothers. His synêgoria reaches anemotional pitch whenthespeaker begs thejudges to have mercy

83 See also [20].22– 23. 84 [20].15, 19, 30, 34– 36.

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uponhisageing father andhisoffspring, andpromises anevenmoredevoted service 36). Unlike the first speaker, Polystratos’ son is to the polis in the future ([20].35– obviously deeply involved inhisfather’s case, andtheemotional appeal andhisplea formercy come across asentirely natural whenvoiced bya person whomight ulti-

mately stand to inherit his father’s atimia.85 If it is accepted that [Lys.] 20 does in fact contain twospeeches, it would seem that the synêgoroi had divided the rhetorical tasks between them along the lines suggested by Aristotle in Rhet. 1413b. Here he divides the acting style of the agonistic genre into two: one giving force to the speech through êthos and the other through pathos.86 In [Lys.] 20 both speakers produce arguments pertaining to the legal case of Polystratos, butthetemperate tone of thefirst speaker suggests a man whopersuades through theauthority residing inhisownperson, while Polystratos’ son uses pathos to make an impact on the audience. If weknew more about the litigants’gestures, postures andinflection, thedifference between thetwotechniques of pleading would probably seemmuchmore pronounced.87 The suppliant relative is a stereotype known from both Old Comedy and prosecution speeches. Sometimes it is difficult to distinguish between those relatives whodelivered tearful speeches andthose whoparaded their tears onthebêma, but who were not allowed to address the court in words. Aristogeiton’s cruelty and bloodthirstiness as a prosecutor were obvious to all when ‘hedidnot feel pity, not whenhe sawthechildren norindeed theageing mothers of some of thedefendants ρ α η α γ χ ῦ τ ὶπ ὐ α ιδ έρ ςτ standing next to them’(ο ία ,ο ς ίω ν ὐ έν νἐν ῶ ω νκρινομ χ ὶμ λ έε ι) (Dem. 25.84). ὗ τ ο ρ ν ο ςἠ ῶ ρ α σ ςὁ τ εσ ῶ π α In a different context (19.283), Demosthenes reminds thejudges of Aischines’ advice to them that ‘you should not even pity the mother of Timarchos, an old ὐ ᾽ἐλ δ ρ η ε α τ ε έ woman, norhis children, noranybody else...’(ο μ μ ῖνὑ ᾶ ν ὴ ςο ὔ τ ετ υ ν α ,ο ῖκ α ῦ νγ α ...). It is ὔ ᾽ἄ α τ λ ετ λ έν νοὐδ ὰ π ο α ιδ ίο ρ χ , γρ ὔ τ ο υ ά νΤιμ ὴ δ εῖντ highly unlikely that the oldwomen delivered speeches of their own, andit is clear ᾽ from Demosthenes’ description in 25.84 that the show was intended to have first ρ ).88 ῶ ν andforemost a visual impact (ὁ There are other indications that female relatives andchildren could addto the 573, Philokleon refers to theparadspectacle incourt: in Aristophanes’Wasps 568– η λ εία ὶ α ςκ ὰ ρ (...) τ ια ςθ α ιδ ά ing of small children, daughters as well as sons (π ω ν α ί) of ο λ ε ῖ), while thevoices (φ ιβ ν τ ). Their father doesthepleading (ἀ ἱεῖς τ ο ὺ ςυ ν ή andχ ο ιρ η χ ᾶ τ α ι), arelikened tovoices of animals (ἀ λ thechildren, whobleat (β ρ ίδ ιο ). Towards the end of his owndefence speech Aischines (2.152 and 179) ν seems to have gathered his daughter andtwo sons around himon the bêma. He refers to them in 2.179 as ‘these little children here whomaybe small andas yet α υ ὰ τ ὶτ unaware of the dangers, butwhoare still to be pitied if weare to suffer’(τ

85 [20].35. η ςδ ο ύ ὲδ ύ τ α (τ η τ ρ ά ιτ τ ικ ω ὑ π ο κ ὴ δ ὲἡ η γ ,ἀ εσ ικ τ ω τ ν ρ ά τ ισ ιβ ἡ ἀ κ μ ν ὲ ὴ ικ 86 ἔσ τ ιδ έξ ὲλ ιςγραφ )· ή η τ ικ ἡ δ θ ὲπ α ὴ ικ ρἠθ γ ὰ μ ν ὲ ·ἡ η εἴδ 87 See above all Hall (1995) for a discussion of the different effects used by Athenian litigants. 88 See also Hall (1995).

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μ ικ ρ ὰ μ ὲ νπ α ιδ ία κ α ὶτ ο ὺ ςκινδύν ο υ ςοὔ π ω σ υ ν ιέν τ α , ἐλ εε ιν ὰ ᾽ε δ ἴτ ή ισυμ β ). μ ῖν ἡ σ ετ α ιπ θ ῖν ε α In most instances it is clear that children were presented only for visual effect while their father continued thepleading, andperhaps, assuggested byDem. 21.99, didsome of the crying himself.89 AndPolystratos’sonrefers to precisely this division of rôles when he says ([Lys.] 20.35):

Weare finding ourselves in the opposite situation to that of other people. For while others gather their children around themandbegyouto let them off, we are begging for ourfather here andfor ourselves...

ίο τ ντ ν ο ῖςἄ ὲτοὐνα λ λ ο ενδ ιςἀνθ μ ρ α ώ θ π π επ ν ό ο ις .ο ρἄλ ὰ ἱμ ὲ νγ λ ο ιτ ο ὺ ς μ ιἐξαιτοῦν ο εν τ ιὑμ α η σ ά ᾶ ς τ μ ,ἡ σ ρ α ε ῖςδ α α ῖδ ςπ π α ὲτ ὸ ν π α τ α έρ τ ο υ τ ο ν ὶκ α ὶ ἡ μ ᾶ ςἐξ α ιτ μ ο ύ εθ α ... Theassumption is that a defendant will normally extend hisplea formercy tocover hisdescendants, which is understandable ina legal system that operated with some forms of collective punishment.90 The speaker’s claim that in the present trial the rôle division has been turned upside-down suggests that it would usually be the defendant, nothischildren, whoaddressed thecourt in words. Only one piece of evidence suggests that the rôle of children (π α ) could ιδ ία sometimes bemorearticulate. InAristophanes’Wasps thepuppies (π α ιδ ία ) of Labes the dog are called to the bêma with the instruction (Wasps 977– 978): ‘Mount the bêma, miserable things, andwith your whimpers beghimoff andentreat andcry’ (Ἀ ν β α α ίν ετ, ὦ ρ α κ α ὶκνυζούμ η α α ἰτ εν ο λ ε ν ). ῖτ π ό εῖτ ιβ τ ν εκἀ ρ ύ ετ ε εκ α ὶδα κ ᾽ off’(α ἰτ εῖτ ) and ‘entreat’(ἀ ε ν τ ο λ The verbs ‘beg ιβ εῖτ ) maysuggest more than ε just inarticulate whining. Butas noted byMacDowell (1971: 258), the puppies are notgiven a line intheplay, andthere is nopassage intheorators which suggests that minors or females were allowed to speak. It is possible that Aristophanes, for the sake of dramatic economy, hascombined the puppies’whining with an articulate rôle which would normally fall to other, adult, synêgoroi. All other evidence suggests that there wasa distinction between articulate synêgoroi andinarticulate supporters paraded for visual effect, similar tothedistinction between silent witnesses andvocal synêgoroi discussed inChapter 2: 5.91 Crying wasnotreserved exclusively for children. Other relatives –andsometimes friends –might also be expected to shed tears in public. One prosecutor (Lys. 27.12) warns thejudges that they mustnotbeswayed bythetearful speeches of the defendant’s demesmen andfriends: Andnowperhaps both hisfellow demesmen andfriends will do what they have been used to also on previous occasions: to beg you, wailing, to pardon the defendants.

α μ ικ α γ ὼ δ έο ὶἱκετ 89 [Lys.] 20.34; Aisch. 2.179 (ὑ ...); Dem. 19.281, 310, 21.186– ρὧ ν ω ἐ π ύ ε ὲ 188; Hyp. 4.9. 119). 90 Hansen (1976: 118– 91 Compare, also, therôle of theatimos Straton inDem.21.95, whois presented to theaudience, ι. α θ σ ιorὀδύρα α θ σ α ξ έγ θ although hecannot φ

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κ α ὶν ῦ νἴσ ω ςπ ο σ ο ιή υ σ ινἅ π ερκ α ὶπ ρ ό τ σ ο ερ νἦ α νεἰθ ισ μ έν ο ικ α ὶδημ ό τ α ι ίλ κ ο ι, κλά α ὶφ ο ν τ ε ςἐξα ιτ εῖσ θ α ια ὐ τ ᾽ὑμ ο ῶ ὺ ν . ρ ςπ α There areother passages which corroborate the assumption that contributions from relatives were expected to contain a considerable element of begging andsupplication, perhaps with a special view to evoking feelings of compassion (ἔ λ εο ) in the ς audience.92 Much of the material examined here is of course hostile evidence, and weareoften dealing withtactical comments intended tolessen theimpact of a show set upto work on thejudges’emotions. But these comments should notbe written off as mere satirical exaggeration: some defendants indicate that they have brought their relatives along precisely because they were needed for this purpose. Aischines brought most of his male relatives with him to the court, and their task as defined by Aischines himself (2.179) is to beg alongside him(σ υ ν δ εη σ μ ό εν ο ι). This group of synêgoroi seems quite distinct from thesynêgoroi called to the bêma at theendof his speech (2.184), andAischines’separate introduction of these people suggests that they were expected to play different rôles. The rôle distribution among different types of synêgoroi is even more apparent intheclosing paragraphs of And. 1,a passage withrather macabre overtones. Andokides whoclaims to have noliving relatives left whocanbegforhisrelease (1.148) suggests that thejudges imagine that they areseeing thebodies of hisdeadrelatives μ α ὰσώ τ ααὐ begging for his salvation (τ τ ρ ῶ ᾶ να νὁ ἰτ μ ᾽ὑ ο έν υ ρ ω μ νἐμ ὲπ α ῶ ν σ ῶ σ ι). Not content with these ghostly supporters, Andokides next asks thejudges α themselves to take ontherôle of suppliant relatives (1.149):

Youmust then take theplace of myfather and brothers and children. ToyouI turnfor protection, andI entreat andsupplicate you. Youmustsave me,having begged yourselves to release me.

μ ρ ὸ εῖςτοίν ο ςἐμ ὑ υ νκ ὶκ α α τ α τ ν ὶἀ ὶπ ὶἀ ν τ φ ὶ ἀδελ ῶ νκ α ὶἀ ν τ α ὶπ ίδ ω έ νγ γ ω κ α ἰςὑ ὶἀντιβ μ ᾶ εύ ο ᾽ὑ λ ςκαταφ ν ῶ κ εσ θ ε·ε α μ ·ὑμ ὶἱκετεύ ρ ε ῶ ῖςμ επ ν α ω μ εν ο σ ά ισώ τ σ α . ε ἰτη α ν α ὐ τ ῶ

Yet inthe very next paragraph Andokides introduces a considerable number of synêgoroi. The previous paragraphs would make very little sense, unless weassume that both Andokides andhis audience agreed that relatives were expected to play a very specific part in the performance, a part that wasexclusive to them andcould not be filled by Anytos, Kephalos, or Andokides’phyletai, whowere going to speak in his support. The passage suggesting that thejudges replace the defendant’s relatives begging for his release should notbe dismissed as idiosyncratic or absurd. A 25, suggests that weare dealing with a topos strikingly similar passage, Lys. 18.24– which wassufficiently effective to be used andreused bydefendants.93 239 also 92 e.g. Dem. 21.182–183 (referring to past trials of Smikros andSkiton). Dem. 19.238– suggests thatanemotional performance from Aischines’brothers canbeexpected. Demosthenes (25.78) claims that Aristogeiton, because of his servile origin, will nothave anyrelatives who canbeghimoff, except for hisequally disreputable twinbrother. 93 See also Lys. 21.17. Arist. Rhet. 1411b refers to a defence synêgoria delivered byLykoleon on α υ ὶΛ κ ο λ ν έω behalf of Chabrias, in which a bronze statue acts as an imaginary suppliant: Κ ετ φ α ο ρ ὰ νμ ή κ λ α ν α ν χ ὴ ν ία ἰσ ,τ εἰκ ὴ ρ χ τ ῦ τ θ ο α ν ν έν τ ό υ ε ὐ ρ ίο η υοὐ ςα β ετ ἱκ ρΧα ν ὴ ὑ π ὲ δ ὲτ '· '

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A corresponding topos occurs in prosecution speeches, butwith an important difference. It wasapparently notunusual forprosecutors toconjure uptheimage of the laws or other symbols of the community begging thejudges for conviction.94 The vocabulary used in some of these passages, ‘to beg’, to supplicate’ and ‘to ‘ as that used for the entreat’(δ εῖσ θ ι, ἱκετεύ α ο ειν ,ἀ ν λ τ ιβ εῖν ), is roughly the same emotional pleas delivered by defence synêgoroi. In particular, Aisch. 3.257– 259, complete with the ghosts of Solon, Aristeides the Just, Themistokles and the heroes whofell atMarathon andPlataia, provides a remarkably close parallel toAndokides 1.148, although Aischines’deadsynêgoroi donotweepbutgroan (σ τ εν ά ζ ειν ). Thecontexts ofsomeofthese passages suggest thattheyareintended toworkas antidotes tothepassionate speeches offered bythedefendants themselves andtheir supporters. Animportant question is whythese prosecutors donotrespond directly by gathering their ownrelatives around them on the bêma, instead of inventing such imaginary suppliant synêgoroi to fight thebattle forthejudges’charis andcompassion. Whendeliberating onhowto stemtheemotional tide generated bythetears of Meidias andhischildren, Demosthenes doesatonepoint envisage thepossibility of bringing hisownchildren into court, hadhenotbeenchildless (21.187); even so, we knowthat Demosthenes hadother relatives whoare notmentioned here as possible synêgoroi. Both Aischines and Lykourgos had children and other close relatives, butneither of themrefers tomembers of their families aspossible supporters –mute or articulate –in their prosecution speeches. Afurther indication thatrelatives werenotexpected tosupport a prosecutor qua relatives is theapparent embarrassment of theyoung manwhodelivered [Dem.] 58 against Theokrines. Hesuggests that having a relative as co-prosecutor is only the second-best option, whenheexplains ([58].4) howmany professed enemies of the defendant have pulled outof theprosecution team ‘sothat I shall noteven have any σ τ ο ι εμ supporting speaker, unless one of myrelatives will assist me, after all’(ὥ η μ δ ). Thespeaker’s ὲτ ῃ η ή θ ὸ σ ν ο τ ιςἄ ρ ή α τ σ ᾽εἶν ῶ ν υ ν ο νβ μ είω ἰκ ο ερ α ι, ἐὰ ῦ ν ν τ point, of course, is that thedefendant Theokrines hasmanaged to persuade his enemies to back downbyoffering them favourable deals (compare Lys. 29.1, andsee further the discussion in Chapter 5: 2). This, however, does not detract from the significance of thepassage, insofarasthespeaker canrepresent it asa problem that his only supporters will be members of his ownfamily. It mayalso be significant that, at the end of his speech, he calls a synêgoros to the bêma; but he does not indicate to the audience whether this person wasa relative, friend or an unrelated person who happened to be an enemy of Theokrines.95 ειἡ ετ εύ ῦἱκ τ ρα ο ὐ ὰ τ ο ςγ νκινδυνεύον ὸὄμματω ρ π ὰ ᾽ο λ λ εί, ἀ κἀ ὐ ῷ ρ ν π ό τ α ι, ἀ λ λ ρἐ γ ντ ὰ ν . ω ῆ μ λ τ ν εω ῶ τ ό α ςἔργ η ν μ ό ὸὑπ ', τ ν ο χ υ ὴ ἄ ψ νδ ο χ ὸ'ἔ υ ψ ,τ μ ν ώ εἰκ ·ςπ 259; Dein. 1.109. A variation onthis theme is found 94 Dem.21.188; Lyk. 1.150; Aisch. 3.37, 257– inLys. 13.92 where thejudges are instructed to act as friends andrelatives of the menkilled by theThirty. InDem. 21.188 thelawsandthedicastic oatharegiven therôle of children standing beside thelitigant to addemotional force to hisspeech. ε. It is possible thatthespeaker hadinserted a ειπ ὶσύν α ,κ εις μ ιἔχ ῖν ,ε ἡ ὁδεῖν α ἴτ σ ο ν 95 Βοήθη ι λ ε ο ικά ίμ α , whenthespeech wasactually delivered (cf. Lys. 19.59: κ α εῖν δ nameinstead of ὁ ). ν α ὶτό νκ τ ὸ

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It wasargued intheprevious section of this chapter thatprosecution synêgoroi normally represent themselves asdetached fromthemainprosecutor, andthat even those who are related to the prosecutor by ties of blood make strikingly little of that relationship. Andall of them, regardless of possible ties of blood or friendship, refrain frompraising thecharacter of themainlitigant andindeed from supplicating on his behalf. A possible butpotentially controversial explanation of this phenomenonis thatthere wasinfact nosimilar parttoplay forthesynêgoroi of a prosecutor in a public action. If such a prosecutor defined himself rhetorically as the mouthpiece or instrument of the entire community, his obvious synêgoroi for emotional purposes, especially for generating compassion, would be not relatives whose primary task wasdefined as singing his praises or begging on his behalf but symbols of thecommunity as a whole, be they deadheroes, sanctuaries, laws, dockyards or even the judges themselves.96 There would be no room for suppliant relatives (or friends, for that matter) in this capacity. The prosecutor’s flesh-and-blood synêgoroi would, as argued above, represent themselves as persons whocould contribute information about thedefendant andhiscrime, andtheir knowledge andhatred of the defendant would be themainjustification fortheir appearance.97 Even our hostile evidence suggests that relatives were expected to support a defendant, andthey arenotblamed fordoing so,notevenbyprosecutors. They may 80), butnot for the part be attacked andvilified for whothey are (e.g. Dem. 25.79– they aretoplay inthedefence. Thus, whenDemosthenes comments onAischines’ brothers, herepresents them as loud andlow-born citizens, andheasks thejudges notto listen to their entreaties; butheadds: But you must not give in, bearing in mind that it befits them to be concerned about Aischines, whilst your concern mustbe the laws and the entire polis and above all the oaths to which youare sworn whensitting asjudges.

ή κ ν τ ρ ε ι ο ο ὲ ο ιςμ ύ σ τ ιτούτ ο π υ μ τ ιὅ εν ο ύ ο ἡ μ τ τ ᾶ μ σ θ ε ε ᾽ἐνθ , ἐκεῖν υ ῖςδ ὴ ὑ ὲμ φ ρ ο ν τ ίζ ρ ειν ά ν τ ὰπ εω ατ λ α ὶπ α η ῆ ό ςκ ςπ ν μ ῶ ςτ ῖνδ ,ὑ α ὶὅ λ ω ὲτ νκ ννόμ ῶ τ ε μ κ ό ο ς(19.239). ω ᾽ὀμ θ σ ,ο ν ὓ ὶκάθη τ ο ω κ ὐ ςα ρ ὅ

In another passage we find a prosecutor urging thejudges to be angry with the defendant’s relatives because they have failed in their duty to make the defendant obey thelawandyetnowattempt to persuade thejudges to acquit a criminal (Lys. 14.20). But there is still no outright criticism of their rôle as synêgoroi per se: it seems to have been regarded notonly as natural, butalso as a moral obligation.98 96 Lykourgos (1.141) toys with the idea that thejudges themselves should group their children and νin trials for σ ιο women around them. But although he claims that this practice would be ὅ ισ νnor εἰθ μ ο ιμ ό treason, he dismisses his suggestion as impossible because it is neither ν μ έν ο ν . InDem. 18.291 Aischines isrebuked forhislackoftears whenrecalling themisfortunes of thepolis in his prosecution speech. This suggests a context where pathos might be used to good effect bya prosecutor. 97 EvenTheomnestos justifies Apollodoros’appearance withreference to hissuperior knowledge

andskill, in addition to Apollodoros’ personal desire for revenge ([Dem.] 59.15).

98 This is suggested also byDemosthenes’attack onEuboulos, whois expected to appear as syn291) that it is outrageous for Euboulos to êgoros for Aischines. Demosthenes claims (19.290– support Aischines incourt whenhedidnotevencontribute tothedefence of hisownrelatives in

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Friends of thedefendant seemtohavebeenina moreprecarious moral position, andthey areconsequently more opento attack thanthedefendant’s relatives. They could backtheir intervention witha reference tothemoral imperative thatanydecent person must stand by his friend in a crisis. This is what is implied by the overtones of thecomparative ‘morally better’(β ελ τ ίο υ ), which inLys. 14.19 is applied tothe ς

defendant’s friends:

if they appear to be more virtuous because they are saving their friends, it is clear that youwill also appear to be more excellent because youare avenging yourselves onyour enemies. ελ ίο τ υ ςεἶν ῦ σ ιβ ιδοκο ζο ο ᾽ἐκεῖν α ισῴ ν τ ε ἰδ ε ςτ ο ὺ ίλ ςφ ο υ ς λ , δῆ ο νὅ τ ικ α ὶ ρ μ ο ω ύ εν ιτιμ υ α ο μ μ είν ςδόξ ο τ εῖςἀ εεἶν ε ιτο ὑ ὺ ςἐχθ ρ ο ύ ς .

In Lys. 5.1, the only surviving introduction to a synêgoria delivered by a declared friend of the defendant, the synêgoros does indeed represent his appearance as a moral duty: But nowI would find it shameful not to help Kallias obtain justice to the best of myability, since he is inviting andbeseeching metodoso andis afriend of both myself andof myfather when he wasalive, andsince wehave hadmany dealings with each other.

ν εἶν ρ ὸ α ι, κελεύον ν ο χ ἰσ ιδο κ ε ῖα τ ν ῦ δ ο έμ ςκ α ὶδεομ έν ο ,κ ίλ υ ο α υ ὶφ ὄ ν τ ο ς ρ ί, κ α ὶπ ῷ π α τ ο λ β λ μ ο λ ἡ ῶ ῖν ν μ α ρ σ ίω τ υ π η ὸ ν α κ ο ὶκ ὶἕω α ςἔζ ή ὶἐμ λ ςἀ ο υ λ λ ς γ εγ μ η ῆ θ η σ εν έν α ο τ ιΚ ὴβ ὰ α ω λ ν δ λ ,μ ίκ ίᾳ α ια , ὅπ ω ςἂ μ νδύνω α ι. Butthere wasclearly a limit astohowfaroneshould goinsupporting a friend who 55) argues perwasanenemy of the community as a whole.99 Konstan (1997: 54– suasively that the Greeks perceived a real difference between relatives andfriends in this regard: the Greeks contrasted being born into a family with making friends. While youaresaddled forlife withyourrelatives byblood without having anactive choice in the matter,100 youcan decide to get ridof a friend for, as Konstan notes, ‘[r]elationships that are made can be broken; although the Greeks placed a high value onloyalty to friends, they recognized that therelationship is mutable.’ 67) argues against the view of Connor (1971: 47– 48 Konstan later (1997: 60– 54) that if anAthenian found himself in a situation where hisobligations to and53– his friends conflicted with theobligations to thepolis, there wasnoready solution to his moral dilemma. Konstan points out (1997: 67) that ‘[i]n the civic discourse of

99

their trials. See also Aisch. 1.104 where Timarchos is rebuked for not having supported 196, theprosecutor argues that it (σ υ ν ειπ ) his uncle in theboulê. In Dem. 24.67 and 195– εῖν might have beena mitigating circumstance if Timokrates hadproposed hislawinorder to help hiskin: this suggests anacceptance of theindividual Athenian having divided loyalties between polis andfamily. 138), pace Dover (1974: 59), andRubinstein (1998: 137– See most recently Konstan (1997: 56–

305). 304–

100 Relatives bymarriage form a peculiar intermediate category: marriages could of course beeasily dissolved, but the moment children were produced from this union, the ties of obligation became less easily dissoluble (cf. [Dem.] 59).

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Athens, friendship is regarded as a virtue (...), nota threat, andnever is loyalty to friends treated aspotentially subversive.’I haveargued elsewhere that, fortheordinary Athenian, there was indeed a wayout of the dilemma posed by conflicting loyalties: that of terminating the friendship andsubsequently remaining passive. Oneshould neither helpa former friend, norshould oneattempt toharmhimactively, atleast notunless anduntil therelationship hadbeenredefined asdownright and open enmity (see e.g. [Dem.] 53, esp. 13).101 Ideally, then, there wasno moral dilemma. If your friend behaves criminally, your obvious duty is to renounce that friendship; the priorities are clear, for the community hasa stronger claim onyourloyalty thana subversive friend. Andthis is precisely where a friend whoappeared in support of a defendant wasmost vulnerable to attacks made intheprosecution. According tomost prosecutors, a defendant wasby definition a criminal, in most instances even before hiscase hadbeen decided. Consequently, any friend who contributed to his defence must have got his priorities wrong. In Lys. 27.13 the prosecutor makes it quite clear that loyalty to the defendant, if guilty, is incompatible with loyalty to thepolis:

If they askfor his release inspite of their belief that hehas committed the crime, then it is clear that they are more well disposed towards the criminals than towards you, the victims; consequently they are not deserving of gratitude but ofpunishment, whenever youcan inflict it. ή σ ο ν τ λ α ο ι, δῆ ν ἰτ ἰδ ίσ ε ὲνομ α ῖν ὅ ν τ ε α τ ε ικ ιτ δ ο ῖςἀ ςἀ ο ῦ ικ σ ιν δ ν εὐ ο ύ σ ο ί τ ερ μ μ ἤ έν ῖν ,ὥ ο ις ὑ τ ᾽ο ο σ ιτ ρ τ υ ῖςἀ ο ο ικ ὐ χ δ ά ιν ςἄ ρ λ λ ὰ χ εἰσ ἀ ε τ ω ία ῖν ιμ ιτυ ξ ιο , ς μ . θ ε τ ε π ό α ν ὁ ὑ ῖςδύνησ

This topos is common in prosecution speeches, and it is frequently developed into anallegation that thedefendant’s friends are notonly showing misplaced loyalty; they aredoing so, because they areof thesame criminal disposition ashe is.102 Lykourgos (1.135) elaborates this point andclaims that since Leokrates’friends have notabandoned himafter hisevil deedthey mustnecessarily share hiscriminal disposition: consequently, they toodeserve thedeath penalty. According toLykourgos, this idea wascarried outin practice onone occasion (1.113– 115). When an ρ ό ) of the murς εκ eisangelia to the Assembly wasbrought against the corpse (ν dered traitor Phrynichos, the decree stipulated that anysynêgoroi whodefended him would have to share in thepenalty if Phrynichos wasfound guilty. For the Athenians of old ‘didnot even consider it right to support those whohadleft the other citizens inthelurch, butbelieved that themanwhoattempts to save a traitor might ο ῖςτ λ ο λ ῖντ ο ὺ υ θ ε ςἄ η ςἐγ ὕ τ ο ω ςο ὐ likewise betray the polis as well’ (ο δ ὲβ π ν ό ὴ α ιτ λ ὶ α ν ινκ ῦ δ ο ο ρ ο ίω π ν ςἂ ᾽ὁμ κ α α ι, ἀ γ ν εἶν τ ιο λ λ α λ είπ τ ο ν οδίκα ῦ ἡ ο υ σ ιν ). A decree, purportedly containing the terms of the η ν ζο τ ὸ νδιασῴ ν ρ ό τ ο δ τ α τ ν π ὸ eisangelia, is read out, andLykourgos continues by informing his audience of two 21 (unfortunately very heavily restored) 101 See Rubinstein (1998: 136). Hyp. 1 fr. V cols. 20– suggests a similar line of argument. 45. 212, 25.42– 34; Dem. 21.208– 102 Lys. 12.41, 30.31–

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defence synêgoroi, Aristarchos andAlexikles, whowere executed anddenied burial in Attica. While thestatement relating toAristarchos andAlexikles maywellbeofLykourgos’owninvention,103 there is no reason to dismiss the possibility that the decree contained such a stipulation (see Chapter 3: 2c). Andalthough the death penalty inflicted onthesynêgoroi of a convicted defendant is unparalleled in ourmaterial, theLykourgos passage is extremely important whenreadinits fourth-century context. Lykourgos works on the assumption that the synêgoros of a defendant will invariably provide a personal endorsement of thedefendant’s character andactions, including those for which he is nowstanding trial. Andif it happens that the defendant proves deserving of destruction, it is only just that his stubbornly loyal friends should be involved in his fall; by persisting in their friendship andby asking for his acquittal they have proved themselves as undesirable andas dangerous to thepolis as he is. Likewise, other hostile evidence suggests that a person whoappears in support of a defendant is effectively putting his stamp of approval on his behaviour.104 Thisbrings ustothemaindifference between thesynegorial rôle of relatives andthat of thedefendant’s friends. Thetwogroups mayengage inthesame type of pleading when it comes to begging thejudges to have mercy onthedefendant. But they will notargue from thesame position. A relative is notina moral dilemma, either real orperceived: hehasnochoice butto appear. If hedoes not, hemight, atthevery least, be reproached intheway that Demosthenes taunted Euboulos withhaving deserted hisrelatives: heallegedly sat passively through their main defence and did not plead properly in the timêsis section (Dem. 19.290). Theconnection between a close relative andthedefendant will notbe perceived as less intimate, even if the relative opts for a passive rôle in the trial or stays away from thecourt altogether; thedestruction of thedefendant is bound to affect other members of his family, if only indirectly.105 A descendant like Polystratos’son in [Lys.] 20 shared directly in the danger faced bythedefendant andinthepenalty (atimia) inthecase ofconviction. Here the synêgoros would findhimself ina situation which comes chillingly close toLykourgos’ideal prescription that synêgoroi ought to share inboththedefendant’s penalty and his disgrace. In his owndefence speech Aischines portrays his brothers as potentially suicidal if theverdict should goagainst him, andhisoldfather would obviously becompletely devastated (2.179). What Aischines does not say, of course, is that if he is found guilty, thereputation of hisbrothers andhisbrothers-in-law will undoubtedly be tarnished because of their family connection with him, whether they chose to support him or not.106 In other words, a close relative had very little to lose by 103 At least thenames of thesynêgoroi are wrong (Hansen [1975: 83]). α τ ς ν ῦ ο α ο ὶτ ὺ ςβοηθ ε ῖ(...) κ 104 This is expressed in so manywords byDemosthenes (21.127): δ ν ῶ ὰ ςτ τ σ α κ ,ἀ α ὶδοκιμ λ λ ὰ ν ν ο ό ρ ο υ ςμ ό γ η ν ὴ σ υ υμ τ ο ύ τ ο ὰ τ ε υ ςμ ο έν κ α ὶτο ὺ ςσυνεξεταζομ β εἶν α ι. ν ά ιν ε μ λ α ο π ὑ ν ω έν μ γ α ρ επ π ῳ τ τ ο ύ 8. 9 etpass.; Dem. 21.99, [59].6– 105 e.g. Lys. 19.8– 106 In [Dem.] 59.11, Theomnestos appeals to the sympathy of thejudges by pointing to the effects it would have onhis ownstanding andthestanding of his relatives, if Apollodoros hadbeen ε ς ρ δ ν ἄ κ ί, ὦ ο ο τ π εῖτ ὐ α ὴ εδ convicted inanyof theactions brought against himbyStephanos: σ

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in thedefence team as a synêgoros, andhewould have a vested interest in securing an acquittal. Such relatives would be ideally positioned to put forward passionate pleas for mercy; their pleading would be perceived ascovering notonly thedefendant, butalso themselves. Ontheother hand, arguments pertaining directly tothequestion of guilt orinnocence would perhaps notcarry as muchweight if they were voiced bya relative, as they might if voiced by a person whowould notbe directly affected byanadverse verdict andwhocould havechosen tostayoutof thetrial, hadhenotbeenconvinced that thedefendant infact deserved acquittal. Whena friend decided to participate in the defence team, his choice could be interpreted as a demonstration of his own conviction that the defendant was innocent. By his ascent onto the bêma he had indicated that, as far as he wasconcerned, there wasnoconflict of interest between thedefendant’s case andthat of thecommunity. This is what is professed by the synêgoros whodelivered Lys. 5. In his opening sentence heindicates quite clearly thathecould havechosen nottoappear: ‘If Kallias hadbeenontrial for anything other than hislife, judges, I would have beencontent with the contributions from the other speakers’(Ε ἰμ ὲ ν π ὶἄ ερ λ λ τ ο ο μ ῦσώ α υἢ τ ο ς , ν ίζ ρ ὦ ε τ α ί, Κ α λ λ ία ἄ σ ν ςἠγω ςδικα δ ε τ ρ κ ε ο , ἐξή ιἄ μ ο ικ α ν ρ ὶτ ὰ τ ὰ ῶ ν ἄ π α λ λ ω ν μ η έν .) However, nowthat the defendant is running the risk of execution, the α εἰρ speaker feels obliged to help himin hisjust cause (β η θ τ ῆ ὰ ο σ δ α ίκ ιΚ α λ λ α ), ίᾳ ια and he adds (5.2) that

joining

Well, I thought that he was living as a metic in this city in such a waythat he would befar more likely to obtain a reward fromyouthan beplaced in so great

a danger on such charges. ο ικ ε ετ ῖν α ρ ῃ ν τ ω τ ὕ τ ο ό ῆ ό ὐ ε π τ ν ν ν ὖ ςμ λ ιὥ ὸ τ ο ε λ α μ ο ὺ ύ ὲ π ἐ τ σ τ επ ν ιζ μ ο ό ἐν ρ ο γ ν α θ ἀ ο ῦ τ ιν ο ἢ ἐ ςτεύξεσ π ὶτοια ῶ ᾽ὑμ ν ρ ιπ θ α α ύ τ ιςα α ἰτ ία ιςε ἰςτοσοῦ ν τ ο σ εσ θ α ι. τ α σ τή κ νκα ίν ν ο υ δ In the next paragraph he asserts that no individual or magistrate has ever brought anycomplaint against Kallias. By indicating that hisappearance is bychoice andby adding his protestations that Kallias has always lived as a law-abiding person, the speaker is ineffect asserting that the interests of Kallias arecompletely compatible with the interests of thepolis.107 The decision of a friend to maintain his relationship with thedefendant in spite of the accusations made by the prosecutors would have rhetorical implications for his contribution to the defence. It would lend additional weight to the legal arguments advanced by him: any refutation of the prosecutors’ claims might gain in force andpersuasiveness precisely because they werevoiced bya person whomight

ῷ κ α ὶτ ῇ α υ τ νἐμ η μ νἐχρησά ρ μ ὸ ᾶ ύ ο ιπ ὐ τ ο ίἂ μ ςα εν ,τ ς ςὑ ιζό γ ο νλ ω τ νεἰκό ῶ ί, ἐκτ α τ σ α δ ικ υ ε λ ο ύ εβ ὶἐπ ν α ο σ η π ςοὑτο ῳ α θ τ έφ γ σ ε ν Σ ῖν ὧ υ ν έβ υ ν ρ α λ ο δ ο λ ώ ικ φ ῇ ὶκ α ιἈπ ,ε ῇ ἴτ ὶτ ἀ δ ελ ᾷ ρ ο φ α ἰσ α ὶσυμ ῳ ῃο χ γ κἂ νκ ἀ ῷ ύ ν ὐ ῶ ὑ ν ο ι; ἢπ σ ἢἐ ίᾳ τ ντ ρ έ ῳ ρ ο τ ῷ π έρ ντ , ἢἐ ῷ τ ὐ να σ ε ; ν ὼ κ ςἦ ω τ επ π εριπ 107 Since thedefendant wasa metic, wemayassume that the speaker would have to make aneven stronger defence of hisdecision toparticipate assynêgoros, stressing thattheconduct of Kallias hadnever conflicted with Athenian interests.

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have chosen not to appear, had he believed that the prosecution had a case. But because friendship (φ ιλ ία ) meant thatthesupporting friend could claim tobe bound to the defendant by intimate ties of affection (Konstan [1997: 53– 92]), it would probably also seem natural if he contributed emotional arguments as well, in entreating thejudges to acquit thedefendant andto pity himself because he stood to lose a dear friend. Ourhostile sources suggest thatfriends sometimes engaged inasking thejudges to have mercy uponthedefendant as a special favour duetothemselves, butunfortunately there is nofriendly evidence tobederived fromthedefence speeches against which wemight test this prosecution topos.108 It is impossible to tell whether friends ever made such requests directly, or whether this is a distortion of a slightly differentdefence topos. Prosecutors mayhaveexaggerated andtwisted a familiar topos in order to harden the hearts of the judges against any emotional pleas made by the defendant’s friends, whowould be likely to declare their loyalty andaffection in addition to their ownstrong belief in thedefendant’s innocence. Friends andrelatives, however, take comparatively little rhetorical flak in the prosecution speeches. Inourhostile sources, themost prominent type of synêgoros is themanwhoappears onthe side of thedefendant without being connected with himby ties of friendship or kinship, andthis type of supporter seems to have been the main target of the prosecutors’ attacks. Many of the anticipations of the synêgoroi’s legal arguments intheprosecution speeches seem to have beendirected at such outsiders.109 This type of synêgoros is the kind referred to as ‘those who are ἱτ ὰ ῆ τ ςπ ό λ ) inLys. 30.31. The ρ εω τ ά ε τ ν τ ο ς ςπ engaged intheaffairs of thepolis’(ο designation is a broad one; other prosecutors refer in more specific terms to magistrates of various types, including stratêgoi,110 and to persons designated as rhêtores or its synonyms.111 It is a commonplace in modern literature that if a synêgoros didnotpretend to bea friend orrelative of thedefendant, this would almost automatically give rise to suspicion thathewasspeaking inreturn forpay.112 Tobesure, thatkindof inference wassometimes made, andaccording to Schol. Aisch. 1.64, Aristophon of Azenia wasparodied onthecomic stage forhaving supported thegeneral Chares in return for a fee. Allegedly, people also gossiped about Ergokles’having promised money to some able speakers oncondition that they would secure his acquittal.113 But al14; Dem. 21.208– 212. 108 Lys. 27.13– 135, 3.196– 54; Aisch. 1.119, 132– 41, 24.170–171, [58].53– 86, 14.22; Dem.22.40– 109 Lys. 12.85– 198; Dein. 1.112.

110

ο υ α λ τ ί: Dem.22.38– ευ 239); β φ εύ : Dem.22.38 (onthis official seeRhodes 1972: 238– α ς ρ τ ν ιγ ἀ γ ο ί: e.g. Lys. 14.21; Aisch. 1.132–135, 3.7, 196; Dein. 1.112. η ρ α τ 40; σ τ

111 e.g. Dem. 21.190, 24.157; Dein. 1.112. 91), Wolff 11), Lavency (1964: 90– 87), Bonner andSmith (1938: 10– 112 See Calhoun (1913: 85– 12), Humphreys (1983b: 3), MacDowell (1990: 336) andthe literature cited in n. 9 (1968: 11– above.

ο , υ ιν σ ο τ ῖςλ α έγ τ έν θ υ γ εγ ρ ὶἘ εσ π ε α τ λ υ ν κ ο έο ςμ α γ λ τ ά ρ ία ρ ν η α ντ ίω θ ε νἈ κοἶδ ὐ ᾽ο ίςδ 113 Τ ]; (Lys. 29.6) According to the speaker, these ρ ῖν ε γ ο η τ ὴκα ὶμ α οαὐ τ νσῶ σ α ι[κ τ ὸ ε ἰδύναιν people eventually let Ergokles downbecause they were afraid to voice their support openly in theface of theAthenians’anger. Dobree’s emendation of thetext is inmyopinion unnecessary,

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though thesurviving prosecution speeches suggest that suchsynêgoroi were indeed accused of supporting the defendant for the wrong reasons, illegitimate financial motives do notconstitute the most frequent type of allegation. There are basically three topoi usedbyprosecutors intheir attacks onsynêgoroi whoallegedly appeared for reasons other than friendship orkinship. Thedefence synêgoros is either speakingfora fee, orhehasa direct personal interest inseeing injustice being done, orhe wishes to demonstrate his personal power andprestige. Thechoice of topos seems in many cases to depend on the context of the particular action. 1)The accusation that oneor more synêgoroi have received a fee to speak for the defendant is found in only twolaw-court speeches delivered in public actions, Dem. 21.139 andLyk. 1.138. Demosthenes refers to Polyeuktos, Timokrates and ισ ρ φ θ ο ό ο Euktemon as the employees’(μ ι) of Meidias aspart of a longer descrip‘ through his wealth threatens to subvert theentire administration of howMeidias tion of justice (21.136–140). The specific attack on these three individuals bears outthe more general point made in 21.112 that whenfaced with wealthy citizens, ordinary Athenians have little chance of obtaining justice. With their money rich defendants can purchase able synêgoroi andwilling false witnesses, in addition to time (presumably by bribing the presiding magistrates to postpone their cases or slow downthe preliminary proceedings). Lykourgos does not addanynames to his accusation, butclaims that those of Leokrates’ synêgoroi whoare not relatives or friends are appearing habitually as μ α ιδ γ ά λ η ὲμ ισ τ supporters of those on trial in return for a fee (ἐ κ π α έπ ἐ λ π ὶτ ο ῖς ή μ τ εγ έν η ή μ δ τ ε ὲ ή ιμ νπ ρ εφ κ ιλ ο ο υ ίᾳ σ ισ θ σ ο ι, μ μ ῦδ έν ο γ ὲσυνα ιςἀ ο υ λ ο π ο ε ὶ έν ο ις ...). According to Lykourgos, people whoemploy their skills to τ ο ῖςκρινομ rescue defendants against theinterests ofthecommunity arefurnishing proof through their very appearance that they would be prepared to commit similar crimes themselves.114 In other words, only traitors will support a traitor, andthe topos on ‘speakingagainst theinterests of thedêmos inreturn forbribes’is sointimately connected with theconcept of treason that it seems entirely called for inthe present trial (an eisangelia to theAssembly forprodosia). Theallusion tocatapolitical bribes is clear in Lykourgos’choice of words towards theendof the passage (1.138):

For one should not use acquired rhetorical skills against your interests but in the interest of youand the laws and the democracy. μ ν ω κ α κ ὶ α ν ὶτ ν ό ῶ μ ῶ ν ρὑ ᾽ὑ π ὲ λ λ ,ἀ ν ῆ ό θ ιδειν εν σ α γ εγ μ ῶ ν ᾽ὑ ρδ θ εῖκ α ὰ γ ο ὐ ρ α τ ία οκ ς.115 ῆ τ ςδημ for the passage makes equally good sense without it: in that case Ergokles hadpersuaded the speakers notonly to refrain fromjoining in the prosecution butalso to engage actively in the φ υ λ υ ἐκ ο τ κ εύ ο λ υ Π τ ὰ α trial onhis side. Fora similar allegation, see Dein. fr. II.4 (Conomis) Κ ρ π ε , ἐπ ειδή ν τ ο κ ρτ ευ νΠ ύ ὸ λ ο ω τ ιὁῥή ε γ έ νλ ο ετ ίρ α ιν λ α ο τ επ θ έν τ ο ςἔν ειξ ρη δ φ ις : μήπ ο λ ο ῳ γ ῷ λ ό τ ῷ τ ὐ να ςἐ ι, ὡ ε θ ή ο ο ῖςἐβ τ ὐ ο ιςα ρ ατούτ ῶ νδ ν β ω ά μ α τ ντιν αλ ν ῶ α φ α , ἔπ ειτ ς ο σ υκ ι. For an allegation that some people hadacted as paid synêgoroi in the boulê, see α δ είκ ν υ τ Dem. 51.16. ν μ έν ω τ ο ῖς γ α ρ π επ ν ῶ α ικ ὶτ τ ὅ ιν τ ν ἐσ ιό ρ ή θ α ιτεκμ ῖσ γ ε λ η ο π σ ν ν ο ά τ ω ἀ ρὑ π ὰ ὲρτ 114 τ ν ῶ ὸγ ἀ δικ τ ο ιο μ ύ ετ . τ ιςἂ α ο ν ο σ χ ῖε ν 115 Fortheeisangelia against Leokrates being a charge ofprodosias têspatridos, see Hansen (1975:

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2) The second

prosecution topos in which it is claimed that the defendant’s synêgoroi, whoarecriminals themselves, have a personal interest insecuring anunjust acquittal is far more frequent. It occurs regularly incases where it is clear to all that a conviction mayhave political or legal consequences for citizens other than the defendant andhis immediate family. Thegraphê paranomôn brought against Androtion (Dem. 22) concerned a decree which bestowed honours onthe outgoing boulê. Onepart of the charge is that the boulê is not deserving of such honours, and it is therefore not surprising that a number of its members are expected to support Androtion (Dem. 22.38– 41). The prosecutor expects that they will justify their appearance by claiming to be synêgoroi for the boulê, butthat they are really concerned about their ownimpending euthynai. A conviction of Androtion will increase their risk of being called to account for their mismanagement while in office, whereas an acquittal in the present trial will betantamount toanapproval of Androtion’s decree and,byimplication, of theconduct of theboulê. This, in turn, will make it far harder for anyone to convict the bouleutai later.116 Likewise, the defence synêgoroi expected as speakers in thegraphê nomon mê epitêdeion theinai against Timokrates (Dem. 24) arethepeople whostand tobenefit directly from his law, the most prominent of whom is Androtion (Dem. 24.157– 159). According to the prosecutor, numerous politically active citizens (π ο λ ὶτ λ ο ν ῶ ) will appear because they want Timokrates’ lawto stand, notbeμ ν ω έν ιτ λ ευ ο π ο cause they want to doTimokrates a favour (24.157). But Androtion’s synegorial assistance waspartof theoriginal dealbetween himself andTimokrates: Timokrates would never have risked taking Androtion’s money in return for proposing such a blatantly harmful law, had he not known that Androtion would back him up if it

came to a trial.117

A similar argument occurs when several people are accused of the same offence, andwhere the verdict in thefirst case orcases is held to establish aninternal precedent (see Chapter 3: 1). The defence synêgoroi expected to appear on Demosthenes’side in the Harpalos affair are allegedly likely to be those whoare themselves implicated in thecrime.118 According to the speaker of Dein. 1, anacquittal of Demosthenes, theworst of thelot, will meanthatit will bevirtually impossible to convict anyof theothers. But some prosecutors envisage another type of synêgoros whomay not be accessory to the defendant’s crime, butwhowill nonetheless be eager to secure an acquittal so that he himself mayfeel free to commit the same kind of crime in the future. Anacquittal in the present case will signal that the Athenians do not object to that sort of conduct: the verdict will grant adeia, amnesty, to any one who wishes to engage inthesame kindof activities asthedefendant. This topos is found inat least 108) cat. no. 121. Fortheclose connection between bribery andattested eisangeliai, see Hansen 113). (1975: 65 with n. 54). For the term c atapolitical bribery’, see Harvey (1985: 108– 116 See also Aisch. 3.9–10fora similar ‘line of argument. 117 Dem. 24.158. Fortheaccusation of bribery, see 24.67, 122. 118 Dein. 1.112; Hyp. 1 fr. IX col. 40.

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three places,119 andit is closely linked totheargument thattheverdict will establish a general precedent –an argument found in 23 out of 28 public prosecution speeches.120 3) The third andmost frequent topos is concerned with a destructive kind of philotimia: the defence synêgoroi have a desire to procure the acquittal of the defendant, because this provides them with an ideal opportunity for displaying their personal power.121 The worse thedefendant’s case is, thebetter for them andtheir ultimate purpose: if theycantrick orcoerce thejudges toacquit even theworst of all criminals, they will havedemonstrated toeverybody that theyareabove thelawand that, because of their power andskills, their personal demands will at anytime outweigh thejudges’concern forjustice andthegeneral interests of thecommunity as a whole. Theaccusation thatdefence synêgoroi aremotivated bytheir owndesire todemonstrate that their power andprestige place themabove thelaws is often directed at the stratêgoi whoare expected to appear, as for example in Lys. 14.21. Here it is suggested that thestratêgoi aresodriven bypersonal ambition that they are, infact, undermining theentire system from which they derive their prestige:

Andif some of the magistrates support him, putting on a display of their own power andtaking pride in thefact that they are able to save even those whoare obviously guilty, you must understand, first, that if all people were like Alkibiades, weshould notneed generals at all (for they would not have anybody to command), and, secondly, that it would befar more appropriate for them to prosecute those menwhohave deserted the ranks than to assist them in their defence.

ά ῆ ῷ ίδ ἐπ ὲντ ειξ ςἑα ινμ υ τ νδυν ῶ τ ὐ ινα σ θ η ῶ ο τ ω νβ νδ ε ἐὰ νἀρχόν ῶ ςτ έτιν μ ε η κ ρ ω α τ ό τ ῴ α ςπ ῶ ςσ ςἡμ ν ερ α ο ιο μ ὺ ύ εν ςφ α ὶτο ιλ μ ικ ο ο τ ο ι, φ ὲὅ εν τ ύ ιδ ιμ ο ὲ νὅ τ ιε νμ ἰπ ο ῶ τ ρ τ ν ά ε ςἈ κ ιν λ β ά ε ινπ μ α ὴὑπ λ ο ρ μ ᾶ ςδ ὲχ ι, ὑ α τ ν ινδύνα ε ζ β ιά δ ρ εἶχ ν ιἐγένον ο τη α τρ τ σ ν , οὐ ο ῶ ιτ δ ε ὲ δ ἔ ν ν ἂ ῶ νλιπ κ ιτ όν ή τ ε ν ω ντ ὴ ρ ο σ ὺ ςπ ο τ ὐ να ο λ ), ἔπ ιπ ο τ λ ᾽ὅ ὺμᾶλ ν τ ειθ ο ῦ ο τ ο υἡγ ὅ ι. α θ εῖσ γ ο λ ρ ο ν ἀ π τ τ ω ἢ ὑ ῶ π ν ρ ὲ τ ιού ε ο γ ῖν ο τ ά η ξ κ ιν α τ Likewise, the general whomaysupport Timarchos is characterized by Aischines (1.132) as ‘having anarrogant bearing andenjoying thesight of himself (ὑ π τ ιά ν ζ ω 86; Aisch. 1.194–195; Dem. 19.289. 119 Lys. 12.85– 7, 29.13, 30.23; Dem. 19.232, 20 20, 21, 27.6– 120 Lys. [6].54, 12.35, 85, 14.4, 12,45, 15.9, 22.17– 2, [53].29, passim, 21.98, 183, 220– 225, 227, 22.7, 68, 23.94, 24.101, 218, 25.10, 53, [26].1– 23, 3, 3.246; Dein. 1.27, 46, 67, 88, 107, 113, 2.21– 7, 192– 113; Aisch. 1.90– [59].111– 91, 176– 3.19. See Rubinstein (1995) for a discussion of persuasive precedent in the Athenian courts. 198; Dein. 135, 3.196– 140; Dem. 19.296, 301, 21.207; Aisch. 1.132– 22; Lyk. 1.139– 121 Lys. 14.21– 1.112. Demokrates of Aphidna whois addressed directly (2nd pers. sing.) is accused of dis3. Asadescendant of thetyrannicide Aristoplaying a similar misplaced arrogance inHyp.4.2– geiton (see Davies [1971: 475]), Demokrates is using the prestige given to himbecause of his famous ancestor to throw mudat thedêmos andmakejokes in public about the city’s misfortunes. The attack itself probably rests on the prosecutor’s assumption that Demokrates will make a display of his power andwitby supporting the defendant Philippides –a completely unworthy cause, according to theprosecutor.

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κ α μ ὶκατασκοπ εν ο ύ ςἑαυτό ο ) –this is clearly a manwhothinks heis somebody ν andwhotakes pleasure in displaying this to theaudience. Andin 3.196 Aischines warns thatthestratêgoi andthose entitled tomeals inthePrytaneion will eventually destroy the very democracy that honoured them, if they use the timê bestowed on

them by the dêmos to get criminals off the hook.122 In 1.173–175 Aischines produces a striking variation on this theme: Demosthenes has not chosen to support the defendant Timarchos because he is eager to gain personal prestige. Rather, his display of power andskill in subverting justice serves the purpose of promoting his private educational establishment. This deviationfromthenormal topos is generated inpartbythetheme of thespeech asa whole andby the context of the trial. The underlying theme that runs through the entire speech –from the laws cited in the beginning (1.7–18) to the admonition addressed to the judges at the end (1.191–195) –is education, paideia: of children, of young

men, andof theentire citizen-body collectively.123 Thevariation itself is notwithout wit, andthebusiness image maybeinterpreted as a display of contempt: Demosthenes’ motivation is nota desire for timê for himself butrather theeagerness of a teacher toprovide hispupils witha blackboard demonstration of how efficiently his rhetoric works. Such displays, it is claimed, will improve hisbusiness. Yetthere is a very dangerous andominous undercurrent here; for the description of Demosthenes’ school follows directly after a reminder that the Athenians executed the sophist Sokrates for having educated Kritias, one

of the Thirty. Perhaps there is a prospective second Kritias among Demosthenes’ pupils –is hehere in thecourtroom right now, watching andlearning from Demosthenes’performance?124 Alltheprosecution topoi discussed here suggest thatdefence synêgoroi whoare notrelatives andfriends will appear outof illegitimate self-interest. However, this self-interest is rarely classified as financial, butrather as pretentious, subversive, or plain criminal. Yetweshould expect thattheprosecutors responsible forthese topoi tried to hit the defendant andhis supporters where it really hurt. The apparent neglect of the ‘synêgoros-for-pay’ topos thus indicates that p rofessional’ synêgoroi ‘ were not seen as the most serious threat to the administration of justice in public actions.125 Theveryinfrequency ofthetopos also yields important information about μ η έν ο τ ετ ς ,ἐ ν τ ο ια ιμ ύ ῃ ν π ζ ἣ τ ο ο ο ρ τ υ α λ ίᾳ σ ἱθ ι, ιτ μ κ ο μ ε ε ο ισῴ ο ὶκ α ίᾳ η ὶο ἱνό τ ρ ιςἐ δ ν ά 122 ε ἰγ φ ο υ σ ι, κα ρ ά τ γ α λ μ α ύ ᾽ἧ ι. τ α η ε ο ν ά ιτ ρ ςτετίμ ὴ φ ν π ο λ ιτ α τ π ο ῖςτ ὰ εία ν ὑ ῖν ε θ η β ο μ ᾷ λ ο τ 286: thatAischines conducted hiscase against Timarchos onthetheme 123 See also Dem. 19.284– of citizen-education seems to have stuck intheminds of theAthenians. ο ῖρ ςinAischines’speeches, which 124 This passage contains oneof theveryfewattestations ofἑτα contributes to the stirring upof memories of the Thirty. Otherwise, Aischines uses the word only about Philip’s companions, except for twoinstances: one is in2.19 where it is insinuated ο ςof thearch-traitor Philokrates, andtheother in2.73 where it ῖρ thatDemosthenes wastheἑτα occurs inconnection with anattack onthegeneral Chares. In fourth-century oratory the word (which is very rare indeed) nearly always suggests subversive andoligarchic activities, if it is notapplied specifically to thecourt of theMacedonian kings. 125 I have found only one instance of the word sykophantês being applied to a synêgoros: in And. ν τ ο ιπ ρ ίτ κ τ α ν α ὶἐπ ά συ οφ κ 1.99 theprosecution synêgoros Epichares isaddressed directly asὦ ο δ . α ς κ ίν

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the perceived nature of the relationship between the defendant andhis synêgoroi. Except intheMeidias case, defence synêgoroi arenotrepresented astheminions or hired rhetorical experts of a prominent party’leader, a backing group rallying around him, cheering himalong inorder to add ‘ to hisdisplay of political clout andtimê in court. If anything, it is the other way around: numerous people allegedly regard defence synêgoria as a chance forthemselves to demonstrate oreven enhance their ownpersonal prestige, rather thantheprestige of thedefendant. Thetopoi onillegitimate self-interest outlined above serve tocreate a rhetorical distinction between those synêgoroi whoarefriends andrelatives of thedefendant andthose whoareoutsiders. Thetopoi aresometimes preceded byanopenassertion that these outsiders have notappeared for the sake of the defendant at all.126 But to what extent should the prosecutors’ distinction between friends andoutsiders be trusted? This question hasanimportant bearing ontheentire discussion of Athenian political relationships andthenature of thealliances formed between citizens active in the Assembly, the boulê andthe courts. Although scholars areadopting anincreasingly sceptical approach to thetraditional concept of Athenian p arties’, atleast inthefourth century, theideathatpoliti‘ stable groups joined together by ties of true friendcally active Athenians formed ιλ ship (φ ) dies hard. If that idea is correct, we ought to expect the defendants and ία their synêgoroi in public actions to operate with two categories of synêgoroi only: relatives andfriends, the latter category encompassing political allies as well as friends whowere notthemselves active inpolitics. Weshould alsoexpect a relatively consistent behaviour within the political groupings in regard to whosupported whomin court, be it onthe side of the prosecution or as a participant in a defence team.127

The evidence, friendly as well as hostile, points to ananswer somewhere in the middle: somefriends werealsopolitical allies, butnotallpolitical allies werefriends. In this respect it is important to note that even thedefendants themselves seem to distinguish in their ownrhetoric between those synêgoroi whowere friends and those whowerenot. Asmentioned inthebeginning ofthis section, Aischines makes a clear distinction between Euboulos andPhokion asopposed to Nausikles, whois explicitly included among Aischines’ friends andcontemporaries. Andokides does not pretend (1.150) that Anytos andKephalos or hisphyletai whohadbeen elected as his synêgoroi were supporting himoutof friendship. Nordiddefence synêgoroi have to assert that their friendship with thedefendant wastheir primary motivation. It will besuggested here thatthedecision ofonecitizen tojoin another citizen inone 205; 24.157. 126 Lys. 12.85; Dem. 21.204– 127 Cawkwell, for example, relies to some extent onevidence for synegorial assistance in public actions whentracing the members of Euboulos’‘group’(1963: 49); see also Gehrke (1976: 24– 25). Likewise, E.M. Harris (1995: 155) finds Aischines’engagement intheprosecution brought

byAristophon against Philonikos problematic, because Aischines refers toAristophon inneutral terms inhisownspeeches, andbecause Euboulos, whoappeared asAischines’synêgoros in hiseuthynai, wasattacked indirectly byAristophon inthepublic action inwhich Aischines had participated as supporting prosecutor. On the other hand, Rhodes (1986: 142) andLane Fox (1994: 138) infer from Dem. 18.162 and 19.291 that Aischines, at thebeginning of hispolitical career, hadformed a friendship or at the very least a stable alliance with Aristophon.

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particular trial didnot necessarily create a friendship or lasting alliance between main litigant andsynêgoros, or between the synêgoroi themselves when they appeared together ina prosecution ordefence team. However, backing thewrong litigant might sometimes turn outto bequite embarrassing later on. In his attack on Ktesiphon, Aischines claims that in reality Demosthenes and Ktesiphon areateachother’s throats (3.213– 214). This passage contains more than just a denial that friendship exists between the two men, for Aischines argues a fortiori that if the main litigant andhis synêgoros are condemning each other outside thecourtroom, thejudges should nothesitate tocondemn bothof themas well. It would be unwise to accept uncritically Aischines’ claim that there was no real solidarity between Demosthenes andKtesiphon. ButevenDemosthenes himself does notjustify his contribution to Ktesiphon’s case by referring to anyties of friendship. He claims that he has as much part in the trial as Ktesiphon (18.5) and rebukes Aischines forhaving attacked thewrong person: rather than prosecuting Ktesiphon, Aischines should have confronted Demosthenes himself in a straight trial (18.13– 16, 124). Apart from that, Ktesiphon is mentioned only six times in the 324 paragraphs of Demosthenes’speech, andhere only inconnection withhisdecree.128 The emotional appeal inthespeech concerns Demosthenes himself, notthelitigant heis defending. Demosthenes’self-proclaimed motivation andpleading correspond neatly 166. to thehostile topos no.2) discussed above onpp. 165– It may of course be suggested that only synêgoroi who could claim with any plausibility that they were defacto parties to the case would be able to dispense with any topoi on the themes of friendship andsolidarity. But Hypereides’ defence of Euxenippos (Hyp. 3) suggests that this wasnotthe case. In fact, Hypereides does notjustify hisparticipation atall, noteveninthewaythatDemosthenes didwhenhe claimed thegraphê paranomôn to be common (κ ο ) to himself andKtesiphon. ιν ό ς Only in 3.11 does he argue in general terms that it is a democratic principle that those whoaregoodspeakers should beallowed to assist inexperienced citizens in their trials. And in 3.28 he actually takes pride in the fact that not only has he refrained from prosecuting ordinary citizens (idiôtai); buthe has actually assisted other idiôtai intheir trials tothebest of hisabilities. Hypereides comes across asan outsider, andhedefines himself as such. The absence of passion from Hypereides’contribution is noticeable.129 The tone is, at most, oneof indignation atthewaytheprosecutor hasgone about thecase, at the alleged abuse of eisangelia, andat the perceived inequity of the present trial, in which the prosecutor hasa huge advantage over thedefendant. Thejudges may of course be moved when Hypereides accuses (3.13) the prosecutor of trying to deprive Euxenippos of adequate support inthepresent trial ‘... butbecause Euxenippos is aninexperienced, elderly man, noteven hisfriends andrelatives should be ο δ ὲ ὐ ςο β τ ύ ερ ὐ ᾽ὅ τ ιἰδιώ ρ η εσ ξ ῳ ςἐσ δ εν α ίπ ὶπ τ π τ ικ allowed to helphim...’(... Ε η θ ε ῖν ...), conjuring upas it does the ο ιβ α τ υ ςἐξέσ είο τ ο ὺ ο ςοἰκ ὺ ίλ ὶτ υ α ο ςφ ςκ image of a frail andhelpless oldmanfaced with a heartless andresourceful prosecution. But Hypereides apparently does notconsider it part of his synegorial task to

128 Dem. 18.57, 83, 113, 207, 223, 250. 129 For this observation, see also Blass (1898: 66).

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move thejudges topity bydirect emotional appeals. Heleaves thatjob to Euxenipposhimself, his friends andhischildren (π α ιδ ία , 3.41), whoaregiven their cueat theendof his speech. Theparticular rôle of Hypereides inEuxenippos’teamis thus well defined: his argumentation gains force first andforemost through ethos, that is the rhetorical projection of the authority andknowledge residing in his ownperson, andin two respects Hypereides seems especially qualified. A citizen whohada distinguished record asa successful prosecutor ineisangeliai andother public actions would probably carry more weight than most other people whenarguing fora particular interpretation of the nomos eisangeltikos. Hypereides uses this to full effect (3.27– 32). Furthermore, Hypereides, whose ownpolicy andattitudes in regard to the Macedonians must have been well known, mayalso have carried considerable weight whenarguing that Euxenippos wasnota Macedonian mole (3.19– 26). Hypereides’ defence of Euxenippos, which maybe compared to the first ten paragraphs of [Lys.] 20 discussed at the beginning of this section, confirms that synêgoroi could legitimately contribute to a defendant’s case without necessarily claiming to be his friends or relatives. Some of them mayhave claimed to appear because they were enemies of theprosecutors, butHyp.3 suggests thatthey didnot even have to dothat.130 For one thing, he ignores completely his ownrelationship with Lykourgos, whoappeared as synêgoros for the prosecutor (3.12). Lykourgos is described here inapparently neutral terms assecond tononeasa speaker andwitha ρ ιο έτ ή ςκ α reputation forbeing moderate andrespectable (μ ὶἐπ ς).131 ιεικ

Obviously, if Hypereides appeared repeatedly as a supporter of defendants in trials where Lykourgos spoke ontheside oftheprosecution, weshould imagine that thejudges would beable toputtwoandtwotogether. That sucha pattern didindeed exist is suggested by Hypereides’ hand –at least as logographer –in the trials of Lykophron as well as Simmias (fr. LI [Jensen]). But the absence of venom from Hyp. 3 is remarkable, if Hypereides’real motivation for appearing inEuxenippos’ defence washisdesire to pick a fight withLykourgos. Thelack of aggression inhis reference to Lykourgos only adds to the impression of a speaker whoattempts to preserve a certain degree of neutrality while helping outa citizen whois incapable of defending himself adequately intheface of a formidable opposition.132 Although Hypereides hasvoiced unequivocal support forEuxenippos’case, he refrains from a more elaborate praise of hischaracter. Andwemaywonder towhat extent he,Euxenippos orindeed theaudience would interpret hissynêgoria asproof of a political alliance. There is at least one indication in the speech itself that a citizen could assist inthedefence of another without this leading toa firmly cemen130 Euboulos is expected tojustify hisdefence of Meidias byreferring to hisownenmity towards Demosthenes (Dem. 21.205), andso are the synêgoroi of Theokrines ([Dem.] 58.44). 131 It has been suggested to meby D. Whitehead that Hypereides mayhave been deeply ironical, andthat thejudges would have been fully aware that this wasinfact scorn faintly disguised as praise. Evenso, it is still significant that Hypereides avoids engaging inanopen, personal attack onLykourgos, whowasprobably oneof themainprosecutor’s mostimportant strategic assets. 132 Thattheir repeated appearances assynêgoroi onopposing sides incourt maynothaveprevented Lykourgos andHypereides fromcollaborating politically onsomeoccasions is suggested byan 18). Athenian lead defixio, SEG 40.269, most recently discussed by Habicht (1994: 14–

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tedalliance between thetwo: inhisdefence ofEuxenippos Hypereides says–apparently notblushing intheleast – thathehasbeena defence synêgoros of Euxenippos’ prosecutor, Polyeuktos, whom Hypereides is nowconfronting on Euxenippos’ behalf inthecourtroom (3.12). Although Hypereides performed this task asoneof ten synêgoroi elected from Polyeuktos’ phylê, he claims that Polyeuktos had at least stated his preference in the election, and it is highly unlikely that Hypereides himself could have been forced against his will tocontribute to Polyeuktos’defence.133 It mayhave caused Demosthenes some embarrassment that he hadagreed to support Philokrates in 348 as his defence synêgoros in a graphê paranomôn, especially after Philokrates wasconvicted of treason andsentenced to death in absentia.134 BothAischines andthespeaker of Dein. 1 attempt to getpolitical mileage out of this.135 In2.20, Aischines implies thatDemosthenes’opensupport of Philokrates, combined with Philokrates’ open support of Demosthenes in proposing him as one oftheambassadors, meant thatDemosthenes could under nocircumstances beasked to watch outfor Philokrates’tricks. Butit is worth noting that neither Aischines nor thespeaker of Dein. 1claims that Demosthenes wasa friend (φ ίλ ο ) of Philokrates: ς hisappearance asa synêgoros is interpreted first andforemost asanendorsement of Philokrates’policies as set out in his decree.136 Thus, Demosthenes’ vulnerability seems to spring far more from the substance of Philokrates’ decree which he defended thanfromanyclose personal association withthedecree proposer himself.137 The activities of synêgoroi in public trials andtheir relationships with the litigants they aresupporting donotsuggest theexistence of permanent orsemi-permanent political groups whoflocked around their leader incourt. Atleast, this wasnot the impression that thesynêgoroi or themain litigants wanted to give –whether as defendants orprosecutors. Prosecution synêgoroi, including those whowereelected bythe Assembly, seemto have preferred maintaining a rhetorical distance between themselves andtheother prosecutors whowere inonthecase: theywereunited only in their enmity towards a particular individual andtheir desire to bring himdown. This would leave them free to turn against each other later on.138 ρ υ ο γ ό ςἐκ ῆ τ κ α ςἈ η 133 ἀ ᾽Ἀ λ ευ ᾽ἔφ εξ γ ρ ο ῦ υτ ν ο σ ε μ γ ν ἐ υ ν δ ῶ α ᾽ὅ ά ὲν λ ὑ ἴο ,δ λ π Ο α τ ςτ ν υ έκ ἀ ὸ ξ εθ εὶςὑ π ὸσ ή μ ἦ ν σ ω ,ὧ ο α ῦ(...). (3.12) ἱρ γ α νκ ὼ ῆ ν ε[ἷ]ς τ α τ ίδ ὶἐ υ ςᾐ ο λ ςφ 103) cat. no. 109. 134 For this eisangelia, see theevidence collected in Hansen (1975: 102– 135 Aisch. 2.14, 20, 109, 3.62; Dein. 1.28. 136 Theonlyplace where thewordφ ίλ ο ςcanbeinterpreted inanywayasreferring toPhilokrates’ relationship with Demosthenes is Aisch. 3.81, where Demosthenes’decision to abandon Philip ίλ ν . But ω νφ η ῶ ςτ ρ ο δ τ ό andPhilokrates by attacking his fellow ambassadors makes hima π φ ίλ ο ιmayequally well refer to theother ambassadors. ο ς ῖρ 137 Asnoted above inn. 124, Aisch. 2.19 inwhich it is insinuated thatDemosthenes wastheἑτα of Philokrates probably should not be taken to refer to anyestablished political friendship: the wordἑτα ο ῖρ ςwith its fourth-century connotations is best translated as ‘conspirator’. 42 further corroborates the argument that many politically active citizens pre138 [Dem.] 58.39– ferred to distance themselves rhetorically from thepersons with whomthey collaborated. The speaker of [Dem.] 58 claims that the parading of enmity in public is only a clever rhetorical front, andthat the rhêtores are indeed as thick as thieves behind thefacade of mutual hostility that they habitually present to the unsuspecting dêmos. Although there is reason to doubt the speaker’s claim that their displays of echthra were insincere, his comment on their rhetorical self-representation does indicate that manyactive citizens preferred nottodefine themselves as

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Oneexample of the shifting constellations in public actions is that of thesynêgoroi who united in a defence of Leptines’ law. According to Dem. 20.146 they were Leodamas of Acharnai, Aristophon of Azenia, Kephisodotos of Kerameis, and Deinias of Erchia. These synêgoroi hadall been elected by the Assembly, but it mustbe supposed that they hadvolunteered to stand, andthat they didnotobject to collaborating on this particular occasion in 355. In the year 356/5(?), Chares of Angele hadjoined Aristophon inanattack onthegenerals Iphikrates andMenestheus of Rhamnous andTimotheos of Anaphlystos (see Hansen [1975: 100– 102]). Six years later, however, Chares wasattacked by the same Kephisodotos whohadappeared in a defence team together with Aristophon.139 Unlike prosecution synêgoroi who did not normally talk about each other or about the main prosecutor, defence synêgoroi hadto discuss the person of the defendant oratleast hiscase. Buttheir argumentation could takemanydifferent forms, from passionate pleas andpraise of the defendant’s character to rational refutation of the prosecutors’accusations. Thetype of argumentation would depend to a certain extent on the pre-existing relationship between the defendant anda particular synêgoros, but it also meant that outsiders could join in the action for reasons of their own without compromising themselves completely if they should turn out to be defending a lost cause.

4. Team-based litigation and the simple agôn model TheAthenian bêmata aregetting rather morecrowded withspeakers thanis normally assumed. This section will discuss the implications of this observation for the current reconstruction of Athenian legal actions, public as well as private, as contests fought out between opposing members of the Athenian élite before the dêmos.140

Most preserved private synêgoriai were delivered by persons who effectively acted as Vicarious Voices for the main litigant, but there are also synêgoriai which were intended to work as supplements to thediêgêseis andarguments presented by theprotagonists. Theevidence does notallow anyconjectures astowhich type was the most common. Synêgoriai containing all the four parts belonging to a model dicanic speech, including diêgêsis, mayhave stood a higher chance of survival than those which provided only supplementary arguments, as argued inChapter 2. Thus, members of groups to which they owedloyalty. See also Dein. 1.99 for a claim similar to that 42. This calls fora modification of Rhodes’statement (1998: 157) that made in [Dem.] 58.39– thephenomenon of declared political opponents whoarenevertheless personal friends ishardto imagine inAthens. TheAthenians, apparently, were able toimagine thatpolitical opponents did form suchprivate friendships; butwhere a modern Briton is likely regard it as a virtue that some of our politicians are capable of distinguishing between purely political conflicts andpersonal likes anddislikes, theAthenians appear to have found suchconduct deeply suspicious. 139 Arist. Rhet. 1411a; Dion. Hal. Amm. 1.8. 36), whowarns against 140 For a recent, cautious restatement of this view, see Christ (1998: 34– 188). pressing too hard the model applied by Todd (1993: 162) and D. Cohen (1995a: 185–

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the high proportion of Vicarious Voices in ourmaterial maynotreflect any typical division of labour between main litigants andsynêgoroi in dikai, but rather what types of forensic oratory later generations considered most useful for purposes of teaching andimitation. Asdemonstrated inSection 1of this chapter, synêgoroi indikai would normally justify their participation in the trial by stressing their positive relationship with the litigant whom they were supporting. Thus, in most types of private action the protagonist would remain clearly visible as such: his synêgoros or synêgoroi would be there in order to back himas an individual, andthe protagonist’s case andhis interests would be the main focus of the pleading engaged in by such supporting speakers.141 Sometimes a synêgoros might define thepersonal or financial interests of theprotagonist ascoextensive withhisown,asforexample thesonwhodelivered [Dem.] 44 on behalf of his father, and the friend and business partner who delivered part

of Dem. 34.

Asignificant category of extant private synêgoriai does notfocus ontheperson andplight of the main litigant, namely the speeches delivered onbehalf of defend-

ants in dikai pseudomartyriôn by the persons in whose interest the testimony had originally been given. This is precisely a situation where it would be difficult to decide whowasto be perceived as the defacto protagonist on the side of the defence, thedefendant whose name wasonthewrit, ortheperson whose position ina previous law-suit wasbeing attacked through his witness.142 Another exception must be made for those private actions in which several related claims were brought against a number of individuals whocould be defined rhetorically as a group, or whena group of people decided tojoin forces as plaintiffs, choosing oneof their number as the person legally responsible for the action, as pointed outinChapter 3. The practice of allowing synêgoroi in private actions mayhave increased the flexibility of thelegal system, sothat itcould accommodate confrontations between a multiplicity of individuals whodefined themselves both rhetorically andpractically asjoint parties to a given case. However, most of the surviving private speeches doconcern private conflicts fought outbetween between twoopposing individuals. What is important to note in this context is that even in those cases where a synêgoros wasresponsible for thebulk of thepleading, the individual personalities of the opposing legal protagonists, dejure or perceived, would not necessarily be lost orobscured. Thetwoopponents could maintain their distinct personal profiles, and it would still be possible for the audience to measure them against each other as 141 Isaios 4, 6, 12; Isokr. 21; Lys. 32; Dem. 36. 142 InIsaios 2.1 thespeaker states that heis appearing insupport of himself andhisadoptive father, andthewitness’case is defined aspartof hisproject of vindicating hisadoption (2.2). Similarly, thewitness receiving Demosthenes’support inDem. 29 remains anonymous until 29.23 andis mentioned again bynameonly in29.58. Theabrupt ending of Dem. 29 mayindicate that it was followed by another speech delivered either by Phanos himself (cf. the end of Hyp. 3 which ι, addressed the α θ εῖσ suggests thatEuxenippos, whois mostlikely thesubject of theinfinitive δ judges after thecontributions of hissynêgoroi) orbyanother person whomayhaveproduced a more personal defence of Phanos.

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individuals. Indeed, some speakers, including a number of synêgoroi, do seem to invite general comparison between thetwoopposing main litigants, andthey seem toexpect thatsucha comparison of thelives, conduct, andattitudes of theprotagonists mayassist thejudges in reaching ajust decision.143 It would bewrong, however, toregard general comparison of thelitigants’characters as pivotal to all dikai anddiadikasiai, while treating only as incidental the particular issues which hadgiven rise totheactions (as does, forexample, D. Cohen [1995a: esp. 188]). First, a clearer distinction mustbe made between character-relatedarguments which serve to establish the veracity or plausibility of the speaker’s legal argumentation, andthe type of argument where the speaker tells thejudges that his ownservices to thecommunity should inform their verdict directly, as should the antisocial behaviour of the speaker’s opponent.144 Second, there are at least as manyprivate speeches in which thespeaker does notdepart from the issue at hand, butlimits his information about himself to a description of his personal conduct inoneparticular set of controversies leading upto thepresent confrontation incourt, asthere arespeeches which invite comparison of theentire lives andcharacters of the litigants.145 Although a wide-ranging attack on the character of the opponent is often found as an ingredient in private litigation, D. Cohen’s claim (1995a: 186) that ‘[a]t the core of the Athenian judicial agôn is the comparative judgement of the parties as citizens andsocial beings’ would really workonly if all attempts atdiabolê were accompanied byanequal measure of general self-praise that might then form thebasis of such a comparison. So far it may be concluded that, as far as private actions are concerned, the simple agôn model canaccommodate synêgoroi inprivate actions asweknowthem from the extant forensic speeches, at least up to a point. The rhetorical affinity between the main litigant andhis supporter(s) makes it possible to interpret many private actions as legal contests between twoconcrete individuals only.146 To what extent andunder whatcircumstances suchprivate one-to-one agônes wereperceived primarily as competitions for honour andrecognition of relative social status between two opposing individuals, and to what extent the decisions of the dikastai were informed bytheopposing litigants’displays oftheir ownprestige andmagnanimity, is a matter fordebate. Whatshould bestressed in thepresent context is that the attested practices andpleading by synêgoroi in private actions donot in themselves undermine the validity of the simple agôn model.

67; 43, 17.57, 18.51– 41, 10.25; Isokr. 16.15– 61, 7.34, 36– 30, 5.41– 47, 6.60– 143 Isaios 2.42, 4.27– 65; 85, 50.63– 25, 45.77– 53, 42.23– 26, 40.45– 57, 38.25– 24, 34.38– 40, 36.41, 55– Dem. 28.22– 35. Hyp. 5.29– 47. 144 e.g. Isaios 5.41– 145 Speeches that donotgo beyond thecontext of the legal conflict in which they were delivered are: Dem. 30+31, 32, 33, 35, 37, 39, 41, [43], [44], 49, 52, 54, 55; Isaios 1, 3, 8, 9; Isokr. 20, 21. None of these contains general self-praise of the main litigants, although the speakers do of course represent themselves in a flattering light through their narratives of theconflict leading upto theconfrontation incourt. 146 Even diadikasiai could often take that form, although some cases (e.g. the ones referred to in 27) involved several contesting claimants. Dem. [43].7–10 and48.20–

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Butif weturnourattention tothesynegorial practices attested inpublic actions, theuseof synêgoroi constitutes a farmore serious problem inregard to themodel.

In those

public actions where numerous pleaders contributed

to both prosecution

anddefence, it would bemuchharder fortheaudience tomakeaninformed comparison between the opposing parties, main prosecutor anddefendant, as individual citizens. Ashasbeen argued in Section 2 above, attested synêgoroi pleading onthe side of the prosecution in public actions represent themselves as supplementary katêgoroi intheir ownright, whohave specific contributions tomakeasmembers of a larger adhocprosecution team. There areonly three extant synêgoriai outof thesurviving twenty delivered in public actions in which thesynêgoroi take ontherôle of the Vicarious Voice, in so far as they seem to be pleading ‘instead of’ rather than ‘with’ the main litigants,

whose owncontributions were presumably very limited (Lys. 13, Dem. 18, [59]).147 These three synêgoriai contain full narratives, andin the case of [Dem.] 59, we knowthat Theomnestos hadlimited hiscontribution to a short speech which served asaprooimion toApollodoros’narrative andargumentation. It is possible thatsimilar virtual prooimia spoken by the main litigants had preceded Lys. 13 and Dem. 18.148 The number of preserved synêgoriai does not allow us to rule outthe possibilitythatthese three synêgoriai represented thenorm, while theother seventeen, which were intended only as supplementary speeches without diêgêseis, were exceptional. Butif it is accepted that a full forensic speech is more likely tohavebeenpreserved in ourcorpus than the ones that deviated from the dicanic genre as established by rhetorical theorists, thedistribution 17:3 infavour of supplementary synêgoriai must be considered significant. Unlike most of those attested synêgoroi whoacted as Vicarious Voices indikai, thespeakers of Lys. 13,Dem. 18and[59] didinfact oustthemainlitigants fromthe centre of thecourt’s attention, at least fortheduration of their speeches. Their synêgoriai mention the main litigants only in neutral terms andin passing, andrather than ‘representing’themainlitigants byvoicing their grievances andarguments for them, these synêgoroi replaced andeclipsed them. There is thus a tremendous difference between, for example, the synêgoroi of Dem. 36 andIsokr. 21, whochampion thecases andcharacters of Phormion and 147 The figure of 20 includes those speeches delivered byelected katêgoroi. In the trial of Aristogeiton, Lykourgos waspersonally responsible fortheendeixis (Dein. 2.13), so the fact that his supporting speakers do not define themselves as his partisans is still significant despite their having beenelected bytheAssembly. AsforDein. 1,2, 3 andHyp. 1,these elected prosecutors donotdefine themselves asa group orbloc witha wider shared political agenda. ) ῃ ρ ίβ τ ια ν δ 148 Aischines predicts (3.201) thatKtesiphon willdeliver aprooimion, thenwaffle on(ἐ fora bitbefore handing overtoDemosthenes. Schol. Dem.20.3 notes thatApsephion, whowas supported by at least twosynêgoroi, Phormion andDemosthenes, produced a similar virtual ντ ν ὸ ο ρ γ ο ὴ ή νὡ ςδιά η ϕ νσυν ςὢ δ ο χ ο ρ ὸ τ ςεἶτ ςτ ο τ α ῦπ αἰδιώ νγρα ο ὴ prooimion, ἑλ μ εν ςτ ό . Phormion’s speech mayhave beenextant as late as thesecond century ν ν ε α εσ λ ίω ά μ ἐκ ρ Φ ο υκ α ο μ ὶ ή σ α ν τ ο ῦνό ο ρ ςτ γ ο η ρ οκ α ν ίω ο ρπ μ τ ὰ ςγ ρ ο A.D. when Hermogenes mentioned it: Φ ῷ τ ῆ ς ,τ ῷ λ κ α ῷ ϕ μ ι, τ τ ῷ ν δ α ῷ σ υ ικ ο έρ ,τ ίῳ ,τ ς ῆ ςδιαιρέσεω ιςτ είο λ α η ρ χ ῖςκεϕ ο σ υτ ο έν μ α . (see Müller [1858 vol. 2: 446] for β ν λ α ώ μ ετα ν τ ὴ ά ιν ξ ε[sc. Demosthenes] τ ψ ε ρ τ ν έσ ,ἀ ς ἀ ία ξ 58: I360 n.2) andBlass (1898: 268) references to this speech). However, both Schaefer (1856– disputed this, albeit

notonparticularly solid grounds.

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Nikias, andthespeakers of Lys. 13and[Dem.] 59 whoconcentrate their efforts and their rhetoric ontheir ownrôle as prosecutors andonthe misconduct of their opponents. Thelatter showthemselves willing toendorse themainprosecutor’s case, but it clearly wasnotpart of their task tovoice their support of themainprosecutor as a person. The lack of rhetorical affinity between these twosynêgoroi andthe persons who are receiving their support means that their synêgoriai will, in effect, deflect the court’s attention away from the personalities of the main prosecutors, hoi grapsamenoi. If the decision of the court was informed in part by a comparison of the personalities of thedefendant andtheprosecutor, wemaywonder whatsignificance the judges would ascribe to the main prosecutors, Dionysios (Lys. 13) andTheomnestos ([Dem.] 59), andwhether their personal standing andprestige would enter into the equation at all. The strategies adopted by the speakers of Lys. 13 and[Dem.] 59 were by no means exceptional. The majority of attested synêgoroi whosupported prosecutors inpublic actions referred totheir (negative) relationship withtheir opponents, mostly combining that with a claim that they were motivated by public-spiritedness. It maybe concluded that most prosecution synêgoroi preferred to keep a rhetorical distance from the rest of their teams andto represent themselves as independent agents whose task wasexclusively to provide arguments against thedefendant and hissupporting speakers. In some instances themainprosecutor ina public action would have synêgoroi whowere at least asdistinguished ashewas, asforexample inthecase of Lykourgos andDemosthenes, whocollaborated on more than one occasion (cat. nos. 36 and37). In such cases there would be at least twostars onthe show as far as the prosecution wasconcerned, andit is veryunlikely thatjudges andbystanders would have perceived the legal action against Aristogeiton (cat. no. 37) inclear terms as ‘Lykourgos vs.Aristogeiton’. To be sure, insuchpublic actions theprosecutors involved would undoubtedly have improved their political standing by having contributed to the victory of their teams, just as individual participants inmodern team-based sports will derive a certain amount of personal prestige (sometimes considerable) fromhaving played ona winning team; buttheperformance of anindividual player ina modern teamgame will, as a rule, bejudged in thecontext of the team’s performance as a whole, and thekeyplayers ina winning Athenian prosecution teamwould presumably havehad to share the glory of victory in much the same way. In those cases where prosecution teams failed to get the required 20% of the votes, there would of course be individual members of the teams, those whohad entered their names onthegraphai, whocould be construed as thelosers andwho might be remembered as such in later accounts of the trials.149 Asnoted in Chapter 3: 2b, it has been held that a citizen’s willingness to assume the prosecutor’s risk wasin itself anassertion of status. Likewise, in those (rare) types of public action

); 22.3; 24.7; 25.83; μ ρ εν ο α ς ψ ά ), 222 (ὁγ ν 149 And. 1.33 (ὁἐν κ ω δ είξ ); Dem. 18.103 (ὁδιώ α ς [57].8 (γ ρ α μ εν ο ); Hyp. 3.34. Note that inDein. 1.54 the Areiψ μ ρ ά α ά ς ψ εν γ ο ); Aisch. 2.14 (ὁ ς opagos Council collectively is construed as the loser.

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where the main prosecutors were entitled to a share of thefine orconfiscated property, they would presumably beeasily recognizable asthewinners. Consequently, it mayalso be suggested that in other types of public action a victory for the prosecution team would be interpreted as a victory first andforemost for the person whose name hadbeenentered onthegraphê. However, if this principle is applied to trials in which the person who had assumed the prosecutor’s risk played only a very limited part in the pleading (as for example cat. nos. 18and27), some serious problems arise. Weshould havetoimagine that, when deciding whohad ‘won’the action, judges as well as bystanders would remember thewording of theindictment andtheformal distribution of legal responsibility between the main prosecutor andhis synêgoroi, rather than the rhetorical division of labour that they hadjust witnessed in court. While it cannot be ruled out that such an interpretation of the trial was possible, it is not very likely either. Andthere is other evidence to suggest that the contribution of prosecution synêgoroi would be remembered, even a very long time after the case hadbeen decided. For example, Aischines’ rôle as a supporting prosecutor (cat. no. 26) is used against himin Dem. 19.291, while Aischines characterizes Demosthenes as a traitor to his friends byreferring to his involvement in the action against Kephisodotos (cat. no. 17). Demosthenes (21.64) commends the restrained behaviour of the general Chabrias towards Philostratos of Kolonos whohadappeared ona previous occasion as one of hisprosecutors, presumably in aneisangelia (cat. no. 15). Philostratos hadbeen oneof several katêgoroi andhadallegedly produced the harshest plea of theentire team. Butin a reference to thesame legal action, Aristotle (Rhet. 1364a) refers to Leodamas’ speech for the prosecution, andwe have no wayof telling who had brought the action. In thetrial of Sokrates, it wasMeletos whohadstaked hisepitimia anda thousand drachmai ongetting at least 20% of thejudges’votes. In that one respect, at least, Meletos emerged asthewinner after Sokrates’conviction. Yet, inXen.Apol. 31thetriumphant (κ ρ ὸ ) Anytos istheobject ofSokrates’scorn astheperson 29– υ δ ς ε), andit is Anytos’sonwhothrough responsible for hisconviction (ε ἰἀ π τ έκ ο ν έμ his unrestrained behaviour proves that Sokrates wasright, after all. Onthe other hand, it cannot be inferred that Meletos hadacted merely asa s trawman’forAny‘ third fiddle in the tos by signing his name to the action while playing second or rhetorical confrontation inthecourt room. If Plato’s andXenophon’s Apologies are in any wayreflections of what was said in the real trial, Meletos seems to have played quite a prominent rhetorical rôle as well.150 There areother indications that therhetorical performance of prosecution synêgoroi could be represented as highly significant contributions when speakers reminded their audience of previous trials, eventotheextent thattheycould berepre-

150 See thediscussion in Hansen (1995). Note that theprosecution is anonymized inXen. Mem. ρ ο γ ο ςinthesingular. Butthere is noreaή τ α κ 1.2.64: Xenophon refers consistently toὁ 1.1.1– sontobelieve that ‘theprosecutor’is identical with Anytos; onthecontrary, theprosecutor is μ ο ρ α εν ςin 1.2.64. In his attempt to produce a point-by-point refutation of γ ψ ά referred to as ὁ theprosecutors’case, Xenophon mayhaveregarded itasirrelevant whether aparticular accusa10]). tion wasuttered byMeletos, Anytos or Lykon (see also Hansen [1995: 9–

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sented as directly responsible for theoutcome of a public action. In Lys. 12.67 the audience is reminded howTheramenes had ‘caused the death of Antiphon and Archeptolemos, whowere mostdearto him, byprosecuting thembecause hewantedto appear trustworthy to you, thepeople...’ ( β ο υ λ όμ εν ο ῳ ῷ μ ςδ π ὑ ετ ή λ ὲτ έρ θ ε ι ῶ ν τ δ ακ ο κ τ ὸ ῖνπ ε ισ α ςεἶν α ι Ἀντιϕ ὶ Ἀρχεπ τ ό λ ιλ εμ ο τ νϕ ά τ ο υ ςὄν τ α ῷ ςα ὑ τ ρ γ ῶ ν ο ἀ π έκ τ κ ειν α τη ...). Inthis passage Theramenes is heldresponsible forthe ν ε conviction of the twomen; yet if wecan trust the decree quoted in [Plut.] Lives of the TenOrators 833E-F, hehadappeared as oneoutof a large number of prosecutors, including theother generals, upto tenbouleutai andanyother Athenian who wanted to join in. The person whomoved the decree in the boulê was a certain Andron, whomusthave beentheperson legally responsible for thedecree stipulating the terms of the trial.151 As pointed out in Chapter 3: 2b, the fact that supporting prosecutors often played very significant rhetorical parts inthe trials in which they wereinvolved is undoubtedly animportant reason whywearesooften unable totell who hadoriginally been responsible for the actions. Inteam-based prosecutions, then, theprotagonist ontheteam would notnecessarily be identical with the person whohaddemonstrated his willingness to assume theprosecutor’s risk. This weakens considerably oneof thearguments that currently underpin the most radical interpretations of Athenian legal actions as zero-sum games. Themodel is based inpart ontheassumption that there wasa certain symmetry between the risk incurred bytheprosecutor andtherisk incurred bythe defendant: if a prosecutor wanted to raise the level of the penalties at stake for the defendant, hewould beforced toincrease thepersonal risk forhimself correspondingly by assuming personal liability for the prosecutor’s fine and partial atimia, to be incurred if his case failed to winover a fifth part of the dicastic panel.152 The prosecutor would have been expected to follow up this assertion of status with a rhetorical performance through which hewould demonstrate andconfirm hisclaim to superiority over therival with whomhecompeted, andthehigher the stakes, the higher theprize to be gained interms of increased timê forthesuccessful prosecutor.153 The fact that theperson whohadassumed the prosecutor’s risk would often come across inthecourt roomasbutonemember of a teamof katêgoroi, andsometimes nota particularly conspicuous member atthat, is clearly problematic for this reconstruction. Tosumup:thecurrent agonistic model might haveaccommodated thephenomenonof multiple prosecution, if it could havebeenfirmly established thateachprosecution teamwould always comprise anobvious protagonist, whohadassumed both the prosecutor’s risk and the main part of the rhetorical performance during the proceedings in court, while the other participating prosecutors would have been

151 Andron could presumably be held responsible for his decree stipulating theprocedure in the same wayas Kallixenos could be held responsible for his proposal concerning the way the 12). Andron is sometimes identified generals weretobetried after Arginousai (Xen. Hell. 1.7.8– withthefather of Androtion, Andron sonof Androkles of Gargettos (PA921), butsee Harding 16) with whomI concur. (1994: 14– 163), D. Cohen (1995a: 186). 152 Osborne (1985: 53), Todd (1993: 160– 195). 153 Forthemost radical interpretation along these lines, see D. Cohen (1995a: 184–

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perceived as his personal supporters. In the majority of attested team-based prosecutions that does notseemtohave applied. While supporting prosecutors signalled their readiness toendorse thecase against thedefendant bydemonstrating their willingness to contribute to theprocedure against him, they appear farmore reluctant to voice support of the main prosecutor as a person. The behaviour of such supporting prosecutors in court bears outHumphreys’ general observation on alliances in the Athenian political sphere (1983b: 3): ‘[w]hatever the real reasons which prompted Athenian politicians to support one policy or another, they were expected tojustify their decision in terms of moral principle or the advantage of the city.’ This behaviour, which Humphreys detects first andforemost intheproceedings of theAthenian Assembly, seems tohavebeen expected also fromthose whoprosecuted inpublic actions heard bythecourts; and what is interesting to note is the marked difference between these synkatêgoroi and those whoappeared assupporting speakers inprivate actions. While thelatter would support individual litigants andwould make a point of demonstrating their ties of solidarity onthebêma, theformer would beexpected to act insupport of policy and principle rather than in support of their personal friends orkinsmen. This points towards a difference between the Athenian perception of public and private actions respectively: the behavioural norms applying to active participants in the Assembly seem also to have applied, mutatis mutandis, to those who prosecuted inpublic actions; whereas displays of personal alliances andintimate ties of affection would not only be tolerated butalso expected from those whochose to back litigants involved asplaintiffs inprivate actions. That the Athenians perceived sucha difference between public andprivate actions is further suggested by the way in which prosecutors, grapsamenoi and synkatêgoroi alike, tend to characterize their enmity with the defendants, when they cite enmity astheir motivation forprosecuting. Ofthetwenty-eight preserved prosecution speeches, fifteen do not cite personal enmity towards the defendant as a motive at all,154 while thirteen mention previous conflicts between prosecutors and defendants.155 However, of these thirteen onlythree prosecutors state that their feelings of hostility originate from their dealings with the defendants outside the political sphere.156 Of the remaining ten prosecutors, eight state explicitly that their previous conflicts with the defendants were firmly rooted in the political sphere (sometimes brought about by public actions initiated by the defendants against them-

154 Lys. [6], 22, 27, 29, 30; Aisch. 3; Dem.20, 23 (enmity is explicitly denied in23.1), [26]; Lyk. 1 6); Hyp. 1,4; Dein. 1,2, 3. Note, however, that [Lys.] 6 and (enmity is explicitly denied in 1.5– Hyp. 1 and4 areincompletely preserved. 155 Lys. 12, 13, 14, 15; Aisch. 1; Dem. 19,21, 22, 24 (but note that thespeaker does notcomment onhis personal relationship with Timokrates, although he discusses his relationship with Androtion at some length), 25, [53], [58], [59]. ; butnote thatEratosthenes committed hiscrimes while α ρ ς ἰκ εία ςἔχθ 34 (esp. 12.2 ο 156 Lys. 12.1– 87 (but see 21.8), [53].4–18(but note that Apolloinoffice as oneof theThirty); Dem. 21.77– doros seems keentostress that hedidnottake anysteps toretaliate, until hisopponents hadgot himregistered asa state debtor, [53]. 14).

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selves),157 while two avoid specifying the nature of their hostile relationship altogether.158 Although there can be little doubt that, in classical Athens, the political was very often personal, byfar themajority of prosecutors appear actively to have tried to avoid the suspicion that they were allowing conflicts in the private sphere to escalate into battles fought through public actions. Thus neither private alliances of friendship or kinship between members of a prosecution team, northe pursuit of conflicts originating outside the political sphere seem to have provided adequate justification for participation inpublic actions; andin suchactions prosecutors seem to have paraded such private ties, be they hostile or friendly, only exceptionally, even when such ties demonstrably didexist. In such actions a verdict in favour of a team of prosecutors whodidnot offer each other anykindof personal support could noteasily have been interpreted asa transparent actof approbation of theperson whohadinitiated theprosecution. If the judges cast their votes in favour of such a prosecution team, they would be voting for anentire case putto thembya –sometimes considerable –number of persons, andtheonly unequivocal message of a conviction insuch a case would bethecondemnation of thedefendant. Ontheother hand, if thejudges cast their votes in favour of thedefence, their verdict mayvery well have been interpreted as an approbation of the defendant, both of his personal qualities andof hisclaim tobeinnocent of thecharge. But if it is maintained that such anacquittal served as a wayin which thedefendant’s timé might be measured, be it absolutely or relatively to the combined timê of his prosecutors, weencounter a serious problem whenconsidering the various rôles of the defendant’s synêgoroi. Asynêgoros whoappeared insupport ofa defendant ina public action could not keepthesame rhetorical distance fromthemainlitigant asa prosecution synêgoros could. While themembers of a prosecution teamappear tohaverefrained fromtalking about each other, a defence synêgoros hadto discuss the defendant or, at the very least, the proposition that he was innocent of the particular crime of which he

157 Lys. 13pass. (Agoratos’activities asa mênytês towhich thespeaker’s cousin, amongst others, 3, 20 (public action brought byTimarchos); Dem. 19.17 (clashes inthe fell victim); Aisch. 1.1– 3 (graphê asebeias 222 where personal enmity is denied), 22.1– Assembly; but note 19.221– 16 (enmity against brought against the speaker’s uncle; butdirected against the speaker), 24.6– Androtion rather thanthedefendant Timokrates, cf. Dem.22; thespeaker’s motivation forproceeding against Timokrates is the latter’s conduct in the Assembly in support of Androtion, 16), 25.37 (repeated participation inpublic actions against thespeaker byAristogeiton; 24.14– 4 (graphê but no explicit reference to personal enmity or desire for personal revenge), [58]. 1– 8 (graphê paranomôn paranomôn brought against thespeaker’s father bythedefendant); [59].4– brought against Apollodoros byStephanos; according toThür’s reconstruction [1977: 71 n. 17] thehomicide action mentioned in [59].9–10wasbrought after thefirst launching of thegraphê xenias against Neaira).

χ ο ύ ρ ᾶ ρ ςὑπ α ϕ ο ια 158 Thespeaker of Lys. 14states thathisfather hadbeeninvolved inaconflict (δ ) with thedefendant’s father, andthat thespeaker himself hadlater suffered atthehands of η ς σ ὐ τ ο ῦπ επ ον πα ν ὑ ῦ α ὶν θ ); buthedoes notreveal thenature of these ῶ thedefendant (κ κ ς ςκα ὼ 2). The speaker of Lys. 15 states only that the defendant is his enemy (15.12). conflicts (14.1– ᾽

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stood accused. Even so, defence synêgoroi didnotall define themselves as a backinggroup whose combined effort served toenhance thedefendant’s ownexposition of his personal standing. Defence synêgoroi seemtohave haddifferent rhetorical tasks depending onthe nature of their relationship with the defendant. While some of them (relatives and friends) would very likely have represented themselves as deeply involved on a personal level, it was also possible for outsiders to contribute to the team effort without engaging inpassionate praise of thedefendant’s entire life andpersonality. Those whodidnotpretend to have anyties of affection orloyalty with thepersons they were defending maywell have concentrated their efforts ondiscussing thejustice of theactual charge (Dem. 18, Hyp.3 andperhaps [Lys.] 20.1– 10)andtheway in which the prosecutor(s) had gone about bringing the defendant to trial (Hyp. 3). Even those synêgoroi who preferred not to side unreservedly with the defendant might still have a considerable impact on the outcome of his case. In one case where weknow the outcome, thegraphê paranomôn against Ktesiphon, there canbelittle doubt that Demosthenes played a significant part insecuring Ktesiphon’s acquittal. Atfirst sight, Demosthenes’rôle inthedefence of Ktesiphon mayappear unproblematic. As noted inChapter 1, scholars advocating the simple agôn model have hadnodifficulties withthetrial of Ktesiphon, precisely because it is possible to interpret the action as a straight competition for honour between two individuals, Demosthenes andAischines. Demosthenes makes Ktesiphon’s case his ownto theextent that Ktesiphon as a person is all butforgotten inthecourse of his speech. The starring actor in the diêgêsis section is Demosthenes, not Ktesiphon, andbytheendof his speech weareas ignorant of Ktesiphon’s personality, democratic credentials, andworth as wewere at the beginning.159 Demosthenes defines himself as the target of Aischines’ attack in much the same wayas defence synêgoroi in dikai pseudomartyriôn represent themselves as defacto defendants. Thecommon feature of this type of synêgoria is that the speeches were delivered in trials which maybedescribed as strategic litigation: the prosecutor is formally attacking one person butaiming his rhetorical artillery at another. Demosthenes’ response to Aischines’ attack is a self-centred synêgoria which invites the audience to ignore the person of Ktesiphon altogether, although Demosthenes could still claim that he was defending Ktesiphon’s case and that his own excellence worked as an argument in favour of Ktesiphon’s decree. The court’s decision to acquit Ktesiphon is also easily interpreted as a vindication of Demosthenes andhis policies, andthis interpretation of thetrial canbe found repeated in many anencomium of Demosthenes, from Plutarch (Dem. 24) to Schaefer (1856– 266) andbeyond. 58, vol. 3: 261– However, the trial itself can be regarded as unproblematic only because of its historical outcome. Hadthe verdict gone against Ktesiphon andhis decree, Ktesiphonwould have been punished, andit would have beenfar harder forcontempor159 The extent of our ignorance may be illustrated by the fact that we do not know whether this Ktesiphon wasin fact identical with theKtesiphon denounced inDem. 19.12. Although scholarsnormally reject theidentification (see Wankel [1976: 13n.9]), thearguments remain inconclusive.

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aryAthenian observers aswell asforposterity tointerpret thetrial anditsresult asa straightforward, almost arithmetical, comparison of the timê andsocial standing of Aischines andDemosthenes respectively. True, Demosthenes would undoubtedly have lost prestige if Aischines hadwonthe case; butin case of a conviction, the person of Ktesiphon would inevitably haveentered into theequation. After all, while Demosthenes risked suffering a set-back in terms of his political reputation as a direct result of the action, the life andepitimia of Ktesiphon were in the balance. Indeed, some remarks in Aisch. 3 suggest that Ktesiphon had in fact a higher poli-

tical profile than scholars –ancient as well as modern –normally allow. Thus, we may doubt to what extent Ktesiphon would have been perceived by the judges as just an insignificant sparrow fought over by two hawks.160 Aischines suggests thata victory forKtesiphon’s decree maybeinterpreted asa victory for Demosthenes, but that a defeat will be Ktesiphon’s defeat. Ktesiphon’s fate should, according toAischines, serve asanexample forothers to abhor (3.246):

It is proclaimed in the theatre that a disgusting man, wholeads a disgraceful

life, is crowned because of his aretê, his noble character, and his loyalty. A younger manis corrupted bywatching this. Aperson whois wicked anda pimp, such as Ktesiphon, is punished. Theothers will have received instruction.

ῳ ,ὅ τ ιστεϕ ῷ θ ρ εά α ν τ ο ῦ τ ύ τ τ ρ ρ α ετ ίτ ιςἐ α ετ ντ ιἀ ῆ η γ ςἕν α α ὶἀνδρα κ κ κ ε α κ α δ ὶβ β ελ ρ ίῳ ῷ θ ·ὁδ υ ο ό ία ν ενεώ π ς ο ῶ έγ ςκ α ο ν ὶεὐν ςἀσχημ ία τ , ἄνθρω ς τ ερ ο ςταῦ η . δίκ η τἰδ ν ρ τ θ ά ιςδέδ ὼ ν ρ διεϕ ὸ ο κ η ω κ επ σ ό ςκ ρ ν ο α οβ ν ὶπ ς ,ὥ ο ρ σ π ε ῶ ν σ ιϕ λ ἄ ε λ γ ο ι ίδ π επ α ευ ν τ α ι.161 Κ τη ο ἱ δ έ ᾽

· Oneserious obstacle forourinterpretation of thetrial of Ktesiphon is that weprobably do not know the whole story. As suggested in cat. no. 34, Aischines may have hadat least one synêgoros. It is also possible that the latter delivered a different and

more direct personal attack onKtesiphon. Moreover, it is suggested byAischines’ speech thatKtesiphon received support fromseveral veryprominent synêgoroi, some of whommayhave concentrated their efforts ondefending himrather than Demosthenes

andhis policies.162 Nofourth-century interpretation of Ktesiphon’s acquit-

tal has survived, andthose later authors whointerpret the verdict as a straight vindi-

cation of Demosthenes’ policies, while regarding the person of Ktesiphon as irrelevant, mayhave based their interpretation primarily onthetwosurviving speeches. Thetrial of Ktesiphon maythus havebeenconsiderably morecomplex thanthe twospeeches andthelater myths about Demosthenes’victory leadustobelieve, and the verdict passed mayhave been less transparent to a contemporary Athenian observer, in so far as it could be interpreted as a shared victory for Ktesiphon and Demosthenes together. All weknowforcertain is that thedefeat of theprosecution wasoverwhelming, butwearenotina position todecide precisely whatdetermined 160 Aisch. 3.31, 203, 242. 195, 210, 230. 161 See also 3.8, 24, 50, 105, 191– 162 Aisch. 3.7, 196, 257. Blass (1910: 10) doubted that these synêgoroi really appeared: ‘Dem38). osthenes ruft niemanden aufundhatte es auchwirklich nicht nötig’, cf. Wankel (1976: 37– Perhaps it wasnotnecessary for Demosthenes –butKtesiphon might have thought it a good idea to have some supporters whowould clear his nameandreputation.

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thedecision of each individual dikastês in this case, norwhether Ktesiphon owed his acquittal exclusively to Demosthenes’contribution to hisdefence. If the trial of Ktesiphon is more difficult to interpret than is normally acknowledged, it is still more straightforward than theother attested actions in which numeroussynêgoroi contributed totheefforts ofadefence team, asinthecases ofAischines (Aisch. 2), Andokides (And. 1), andEuxenippos (Hyp. 3). The hostile topos isolated in Section 3 above, that some prestigious menconsidered their rôle asdefence synêgoroi as a wayof increasing their owntimê, complicates the picture even further. Foraccording toseveral prosecutors, suchsynêgoroi would divert thecourt’s attention away from thedefendant’s personality andcrimes. Thejudges arewarned that if they are persuaded by such people to vote for an acquittal, their verdict will not reflect accurately the attitude of thecommunity towards a particular kindof criminalbehaviour, butrather howthejudges collectively havebowed indeference tothe power, prestige, andrhetorical brilliance of certain ambitious individuals. Both prosecution anddefence synêgoroi could anddidmake independent and significant rhetorical contributions to public actions, andsynêgoroi could anddid turn the occasion into a display of their ownknowledge, skills, andpower to persuade, whether that power wasderived from the general respect they commanded from their fellow citizens163 orfromtheir technical abilities tocontrol themoodand emotional response of their audiences. Insuchcases, theperformances ofsynêgoroi on both sides would have had the effect of blurring the individual profile of the prosecutor formally responsible for the public action and, to a lesser extent, the individual profile of thedefendant. That in itself constitutes a serious obstacle to the interpretation of Athenian public actions primarily as zero-sum agônes, in which the victor would gain increased personal prestige in a measure proportional to the losses incurred by his opponent. Thewayinwhich public actions wereconducted asagônes between looselydefined teams ofspeakers points totheconclusion thatthefinal verdicts passed in such actions would notreflect therelative social andpolitical position of twoopposing individuals, nor the relative strength of twoclearly defined, opposing groups of political allies, but rather the relative strength of two opposing cases. It is not in the area of team-based games that the Greeks have left their most conspicuous legacy, except inthemilitary sphere where theclash ofopposing ranks of hoplites is arguably oneof themostextreme forms ofteam-based contest imaginable.164 Even so, a large part of the executive of the Athenian polis wasstructured around teams of officials serving onboards, andthepractical running of thepolis depended to a large extent on the ability andwillingness of citizens to cooperate when discharging their official duties. That type of cooperation didnotdepend on the existence of formal party-political structures; on the contrary, the practice of ή ςisusedbothabout Lykourgos inhisrôleasprosecution synêgoros (Hyp. 163 Theadjective ἐπ ικ ιε 3.12) andabout Archias of Cholargos, whois expected to appear as synêgoros for Androtion 41). (Dem. 22.40– 169) with reference to previous 25, 167– 164 Onteam-based sport, see e.g. Golden (1998: 9, 24– literature, including literature competitions.

ondramatic

festivals, which were also organized

as team-based

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composing such boards by means of a lottery across the tenphylai constituted a considerable impediment to the hijacking of individual boards by particular political groups.165

The wayin which synkatêgoroi represented themselves andtheir rôles in the actions in which they participated, be they actions brought through the Assembly andthe boulê or ordinary graphai, andtheir reluctance to state the ties that united them withtherest of their teams suggest that suchteams constituted informal parallels to theboards of officials found inother areas of public life. Thus public actions of thetype where thecommunity asa whole wasperceived astheinjured party may be best understood as team-based agônes. That this type of agôn in the political sphere wasnotanalien concept to theAthenians, andthat suchteamwork wasboth recognized andhonoured officially by the community, is borne out by numerous inscriptions from the classical period in which entire boards of magistrates, groups of ephebes andpublic arbitrators are honoured collectively, sometimes (but notalways) as a result of their successful competition against other teams of the same type.166 Animportant difference between team-based agônes inthecourts andteam competitions in other areas of political and social life was that the former could potentially create an individual loser, that is the defendant, whowould suffer the full blow of defeat if he wasconvicted, while therest of histeam would be less directly affected. Individual victors, however, would beconsiderably less conspicuous, especially if the prosecutors wonthe action. The advantages anddisadvantages of ‘collegiate’prosecution will be discussed inthefollowing andfinal chapter, where theproblems surrounding defence teams will also beaddressed.

165 Forthis point seemostrecently Rubinstein (1998). 166 As examples of honorific decrees recognizing team effort the following inscriptions can be cited: SEG 34.63, IG II2 2834 (diaitêtai); IG II2 223, 2790A, 2791, 2792 (boulê); IG II2 1156 (ephebes from the tribe Kekropis); IG II2410 (priests andhieropoioi of the boulê); SEG 16.57 (thesmothetai); IG II21142, Agora 15.35, 15.38, 15.44A, 15.51, 15.32 (prytaneis); SEG 21.513, 34.106, IGII22976 (ephebes andpersons incharge of their training); Agora 15.19 (syllogeis tou dêmou); IG II2 2822 (tamiai tou tês theou).

Chapter

5: Synêgoria in a Democratic Context

In the previous chapters it hasbeen argued that the useof synêgoroi wasfar more widespread than is normally believed, andthat synêgoroi seem to have appeared very frequently, especially in public actions, on the side of both prosecutors and defendants. It is no longer possible to ignore the practice on the grounds that it was exceptional andessentially a deviation from an alleged democratic principle that every citizen hadto plead hisowncase alone, be it in public or private actions. Nor can the synêgoros be brushed aside asjust another kind of witness. Synêgoroi will have to occupy animportant place inanyreconstruction of theAthenian administrationofjustice. Theywereregular andsignificant performers inthedemocratic courts. Thepresent chapter will debate thesignificance of team-based pleading forourinterpretation of Athenian public actions. In Section 1 the practical effects of allowing multiple prosecutors will be discussed, andit will be argued that the practice mayreflect formal organizational principles that arefound inother areas of theAthenian democratic polity. This section will also explore whether prosecution teams didindeed render theprosecution more impersonal than would have been thecase if a single individual carried both theprosecutor’s risk andtheentire rhetorical burden onhisown. Section 2 will consider the darker side of team-based prosecutions anddraw attention tothewaysinwhich thepractice created opportunities forwhattheAthenians perceived as abuse of the legal system. It will be argued that some of the apparent contradictions in theAthenian attitude to their volunteer prosecutors and their owndemocratic courts maybebetter understood if they are seeninthecontext of a legal system where multiple prosecution wasthenorminpublic actions. InSection 3, thepossible impact of defence synêgoroi ontheoutcome of a trial will beassessed. It will beargued that weshould seeAthenian verdicts as attempts tomeasure theworth andpersonal conduct ofanindividual citizen against thecrimes he was accused of having committed, andthat, in this particular regard, modern scholars have overstated thecontrast between the nature of Athenian verdicts and the sentencing policies in some modern adversarial legal systems.1 But it will also be suggested as a possibility that the legal system, which in some cases left opportunity for a flexible penal response, mayhave been rooted in specifically Athenianideological concerns. Oneparticular problem that will receive attention here is the hostile topos isolated inChapter 4: 3 that thedebtof charis allegedly owedbythecommunity tothe defendant’s synêgoroi could, at the synêgoroi’s request, be transferred to the defendant himself. It will be suggested that therecognition of transferable charis as a kindof ransom mayhave tempered theconsiderable risk-factor associated with active participation in the running of the democracy, allowing the citizen of restricted 1

162). Todd (1993: 161–

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means a certain degree of protection if hefound himself asa defendant in a public action as a result of his active engagement inthepolitical sphere, forexample asa magistrate. In this connection it will be asked if theAthenians themselves thought of their courts primarily as a battleground reserved fora ‘litigious élite’, andtowhatextent they reflected onandaccepted thepossibility thatordinary citizens might endupas defendants in public actions. Thecurrent interpretation of theprocedural flexibility that existed intheadministration ofjustice will bereassessed. It will beargued that theAthenians were very muchaware thattheir legal procedures didsometimes provide a far from level playing field that favoured theprosecutors, andthat the practice of allowing defence synêgoroi should be understood in this context.

1. Hoi boulomenoi If it is accepted, as argued in Chapter 4: 2 and 4, that pleading by multiple prosecutors would have theeffect of reducing theconspicuousness of theindividual who hadentered his name onthegraphê, it remains to askwhether this effect could in anywaybe regarded asdesirable. Anyattempt toanswer that question will haveto be based on circumstantial evidence. The Athenians themselves did not leave treatises in which they set out the reasons why they preferred a multitude of prosecutors rather than a single individual toplead fortheprosecution inapophaseis, or whythey deliberately facilitated theparticipation of several citizens ineisangeliai orother procedures initiated through theboulê andtheAssembly, letalone whythey allowed citizens theoption of sharing therhetorical burden in public actions of the graphê type for which legal responsibility hadto be shouldered by a single individual.Butnordidthey leave usanysystematic attempts toexplain their preference for boards of magistrates.2 Yet the majority of modern observers accept not only that boards of magistrates were the norm to which there were butfewexceptions; it is also assumed thatcollegiality wasa principle thattheAthenians applied consciously, although theexplanations offered bymodern scholars differ to some degree.3 If weconsider thepractical effects of allowing prosecution teams inpublic actions, these mayin themselves provide sufficient explanation for the phenomenon of multiple katêgoroi. A chain is never stronger than its weakest link, andtheindividual who took it upon himself to volunteer as ho grapsamenos was extremely

2

3

226) of eleven democratic principles applying to It is significant that Hansen’s list (1991: 225– office-holding derives the first tenfrom their formulation in Aristotle’s Politics. But Hansen’s no. 11, ‘Magistrates should exercise their power inboards andnotas individuals’, is based on 2). Perhaps Aristotle omitTheophrastos’caricature of the‘typical’oligarch (Characteres 26.1– tedcollegiality fromhislist of characteristics ofdemocratic archai fora reason: collegiality was notpeculiar todemocratic administration, butwidespread also inoligarchies. Collegiality as a check on magisterial power: e.g. Ober (1989: 55) and Hansen (1991: 239), collegiality asa check ontheincompetence of individual magistrates (‘damage limitation’): e.g. 139). Hignett (1952: 232), preemption of ‘corruption’: e.g. Rubinstein (1998: 131–

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if hewasintimidated4 orbribed,5 or if hediedbefore thehearing,6 there wasa risk thattheentire case would fall withhim. Another well-known strategy for outmanoeuvring a potentially dangerous prosecutor was to bring counter-suits intended toresult intheprosecutor’s atimia, exile, ordeath.7 Litigants frequently draw attention tosuchtactics, andit is a frequent prosecution topos thatthedefendant and his supporters haddone all they could to stop the prosecution –of course invariably by foul means. Such allegedly illegitimate defence strategies have been discussed frequently by modern scholars, andthere can be little doubt that the Athenians themselves found the practices problematic, in much the same way as they held deeply ambiguous opinions on ‘gifts’in other contexts (Harvey: [1985]).8 However, if there were several katêgoroi involved ina single public action, the effectiveness of such tactics would be reduced to some degree. Thecost of bribing an entire team into passivity or leniency would rise, and would probably also be mademoredifficult if themembers of theteamfelt that theywerebeing watched by each other. It would notalways be sufficient just to bribe the person whose name was on the writ, and, furthermore, he would not always be identical with the key person in the team’s rhetorical strategy. We have examples of alleged bribery of synkatêgoroi, asinDem.25.47. Hereweare toldthatAristogeiton hadthreatened in theAssembly tojoin thepublic action against Agathon theoil seller, butwasbribed to desist. This, however, didnotprevent thecase fromcoming to court, for accordvulnerable:

4

5 6 7

8

e.g. Aisch. 1.64; Dem. 19.2, 21.3. It wasalso possible fortheAthenians to imagine that intimidation could bedirected atpotential synkatêgoroi ([Dem.] 58.59) andwitnesses ([Dem.] 58.7). Dorjahn (1937) discussed intimidation, butfocused primarily ontherestricted scope forintimidating thejudges. e.g. Dem. 20.145, [58].32. Dem. 20.145. 50; And. 1.132–136; Dem. 21.103–105, 123 (comment on general prac36, 49– Ant. 6.7, 34– 53 + fr. XV (Conomis). According to Dem. 19.2 3; 24.8; [59].10, Dein. 1.51– tice); 22.2– 121 Aischines’dokimasia rhêtorôn against Timarchos wasanother such case. In Dem. 21.116– wearetoldthatMeidias failed tocarry through acounter-suit against Demosthenes, whereupon heattempted to remove Aristarchos, according toMacDowell (1990: 339) so thatDemosthenes would be blackened by association. Another possibility is that Aristarchos wascollaborating withDemosthenes in his action against Meidias. The attitudes to strategic litigation, i.e. counter-suits, seemespecially ambiguous. The Athen3, 20) ians were well aware of the useof this tactic, butwefind only one litigant (Aisch. 1.1– whois willing toadmit thatheis employing it himself orhasemployed it inthepast. This adds

a newdimension totheinsistence onpersonal enmity andthedesire forrevenge professed bya significant number of katêgoroi, be they grapsamenoi or synkatêgoroi. It is a commonplace in modern discussions that prosecutors employ this topos inorder tocounter allegations that they were acting inreturn forpay; andinmorerecent literature, theemphasis hasbeenontheclaims topersonal honour andmanliness inherent insuchprofessions thatthelitigant is acting inorder to avenge himself onhisopponent (e.g. Christ [1998: 123]). Butto myknowledge, noonehas interpreted such claims as attempts to locate theprosecutor’s motives firmly in the past. If the speaker wassuspected of acting in order to rid himself of a potential future prosecutor, this would notonly cast doubt onthevalidity of hisattack onthedefendant; it would also betantamount toanadmission of potential guilt onhispart. I believe that it is possible toapply all three interpretations simultaneously, andthat thetopos served tocounter different lines of attack on the speaker’s integrity.

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ϕ ω ν ingtothespeaker a silent (ἄ ο ) Aristogeiton waspresent incourt whenAgathon ς wasacquitted.9 If a defendant targeted hisbribes, counter-suits or intimidation only at thepersonresponsible fortheaction, hemight gaintime–andtime could beprecious inthe run-up to a trial –buthewould notnecessarily prevent theprosecution frombeing brought against him at a later date. The disappearance or removal of ho grapsamenos didnotprovide anyguarantee in the midor long term, if other members of theteam were ready totake over thecase intheir ownnameandrelaunch it. Wesee that happening in a number of instances, forexample inthegraphê nomon mêepitêdeion theinai against Leptines andhis lawwhere the original ho grapsamenos had died before the case reached court, in the case of Aischines’euthyna taken over by Demosthenes after Timarchos’conviction, andinthecase of thegraphê paranomôn against Thoukydides, re-instigated by Theokrines of Hybadai after Charinos, the original grapsamenos, hadbeen convicted of treason ([Dem.] 58.37– 38). We also know that at least twoof the defendants hadgained considerable advantages bydelaying theaction. Leptines hadmanaged togain somuchtime thathe wasnolonger under personal risk whenhis lawwasfinally taken to court. Andone of the reasons whyAischines wasacquitted in his euthyna mayhave been that, at this late date, thecase wasconsidered bythejudges tobeboring, stale, andveryold news (cf. Dem. 21.112 ontheadvantages of buying time). Butboth defendants did face thecourt in theend. Inthose cases where a public action hadbeeninitiated through decree (eisangelia andapophasis), there is nosecurely attested example of anaction having been dropped altogether after ratification of thedecree providing fortheaction. Aspointed out in Chapter 3: 2c, given that we know more eisangeliai than anyother single type of public action, this must be considered highly significant. A prosecution team’s chances of winning would obviously havebeenreduced considerably if individual members were forced orpersuaded todesert thecase, andthere would still be plenty of scope (andreason) forbribery, intimidation andcounter-suits against elected as well as self-appointed prosecutors. Nevertheless, in regard to public actions initiated through decree, which mayhave involved a core ofelected prosecutors asa standard or at least a regular feature, the format seems in practice to have ensured that such public actions, once brought, would eventually bejudged. The difficulty here is to decide if the Athenians weredeliberately encouraging multiple prosecutors in public actions, because they were fully aware that it would be a wayof maximizing thechances of getting suchactions heard bythecourt. It is possible toobserve themechanism asit seems tohave operated ina goodnumber of attested cases, andwe also know that multiple prosecution wasthe norm in apophaseis andperhaps a frequent clause indecrees prescribing the formats of individual eisangeliai andother actions initiated through boulê andAssembly.

9

115 forTimarchos’betrayal of theaction against Philotades of KydathSee also Aisch. 1.114– enaion, inwhich heparticipated intheprosecution. Thefact thatTimarchos hadreceived money ἐ π ὶ ρ γ ο ίᾳ η τ ὰ α τ ισ ςτ κ ῇ to betray thecase didnotmeanthat it wasdropped (the expression ἐπ ρ ίο η τ ο υsuggests theopposite). See also Lys. 29.1, [Dem.] 58.4, andthediscussion in ῦδικα σ τ Section 2 below.

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However, since the Athenians themselves never bothered to state their reasons for allowing or actively prescribing the practice, it maylead to the wrong conclusions if multiple prosecution is interpreted solely as a practical measure ‘designed’ to ensure that public actions would be heard by the courts. It would be in perfect keeping withtheGreek wayof writing history topostulate theexistence of aprôtos heuretês or to ascribe its invention to an ingenious (and preferably ancient) lawgiver, whosawprecisely where the administration of justice in public actions was most vulnerable. But it is highly unlikely that such a ‘designer’ever existed. First, since multiple prosecutors occur inpublic actions as farback as oursourceswill take us,multiple prosecution maywell have its roots inanearlier ageabout which weknowhardly anything at all, andit mayhave developed onits ownwithoutanyconscious ‘design’, interference orregulation bytheAthenians intheclassical period.10 The practice as it operated in the classical period seems eminently sensible in the light of the structures of the fourth-century legal system andof the attested Athenian concerns andanxieties in regard to their volunteer prosecutors. Butwecannot getanycloser to anexplanation than that. There maybemany other possible interpretations of thephenomenon of multiple prosecution. Andthepractice hadat least oneother observable (side?) effect which seems togohandinhand with a fundamental democratic principle: it maximized thescope foractive participation byordinary citizens in politically important public actions. Asnoted in Chapter 3: 2b, some modern scholars have assumed that the high risks connected with litigation in public actions must have limited participation in such actions to a very narrow section of theAthenian citizen population: those with extraordinary wealth, education andambition.11 It has been argued, most recently by Christ (1998: 34), that the assumed defacto restriction of active participation in thepolitico-legal sphere toa narrow élite seems atoddswiththedemocratic princi-

ple that every citizen whowished should be able to participate, andwith the claim to political meritocracy voiced byThucydides’Perikles (Thuc. 2.37.1) andechoed, for example, inAisch. 1.27 andDem.Prooimion 13withreference to theAssembly. It is of course possible to interpret the restricted access to public litigation as an 6 and accidental side-effect of the regulations (for such there were: [Dem.] 58.5– 12 paraphrase relevant laws) which allegedly served to deter citizens from mali11– cious litigation andfrom abandoning cases to the detriment of thecommunity (see further Section 2 below). But it is equally possible to regard it as anintegral part of

a wider political structure which ensured thestability of thedemocratic constitution inthefourth century andprotected it against stasis sparked off bya disgruntled and

slighted aristocracy. According to that interpretation, the Athenians could represent their system in democratic discourse as meritocratic, thus satisfying thepopular demand forequality of political opportunity inprinciple, whilst ineffect retaining active participation

10

11

Precisely thesameargument canbemadeinregard tomagisterial collegiality which wasnotin itself a democratic invention; buttheprinciple of collegiality, whenapplied within a democratic constitution, nodoubt helped tobring about a reconciliation of democratic egalitarian principles witha recognized practical need foradministrative authority andcontrol. 35). 195), Christ (1998: 32– 118), D. Cohen (1995a: 184– Osborne (1985: 53), Ober (1989: 112–

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in the Assembly andthecourts as anélite prerogative. In that waythe democratic constitution could accommodate the aristocratic drive forcompetition, recognition andpolitical conspicuousness which would raise them above their fellow citizens, a demand that hadto be satisfied in order to preserve the allegiance of the Athenian élite to democratic values. By preserving high-profile public litigation as a defacto monopoly of the wealthy, the Athenians would in effect have applied one of Aristotle’s prescriptions for a stable constitution: a combination of arithmetic equality and proportional equality (Politics 1301b–1302a, cf. 1280a), to which the Athenians may not have adhered openly in public discourse, but which they quietly applied to their politico-legal system in practice.12 The practice of allowing participation by multiple katêgoroi, some of whom would beexempt frompersonal andfinancial risk, should atthevery least give rise to a modification of the reconstruction set out above. The characterization of the courts asa space inwhich ordinary citizens participated bydeciding theoutcome of the legal agônes (through thorybos as well as by vote), while the élite, by andlarge, held onto their monopoly of thebêma, rests ontheassumption that a prosecutor had tocarry theentire rhetorical burden andtherisks attached to it onhisown. Andthis assumption is often combined with a dangerous argument fromsilence: wehave no example of anidentifiable public prosecutor whocanbe proved to have been poor. True, the speeches delivered in private actions do as a rule provide valuable information ontheprivate wealth andpublic benefactions of thelitigants involved, andit is also true that thepeople involved in suchprivate disputes tendtobelong to the highest strata of society. In regard to private litigation in particular, it is fair to saythat ourmaterial is heavily biased towards wealth, notonly because of thefees charged for logographic services, but also because the length of a private action would usually be determined by the sum of money under dispute. The likelihood that a poor manwould become embroiled inprivate litigation concerning more than a thousand drachmai is limited. A litigant fighting a dikê concerning a thousand drachmai or less would have the floor for 21 minutes only, including his second speech, andhe maynothave required a script, even if he were able to read it. In public actions, however, weareoften left in thedark, partly because of the reluctance of prosecutors to talk about themselves and their own services to the community –a point which will be further discussed below. Those litigants whom wecanidentify securely withpersons mentioned inother sources arelikely to have belonged totheélite. Butsome of ourattested prosecutors orprosecution synêgoroi cannot be identified with certainty. This is the case of, for example, Archestratides (Lys. 14.3 and15.12), whosigned hisname to thegraphê against theyounger Alkibiades. We have no personal information about Phormion whocontributed to the attack on Leptines’law(Dem. 20), or about hograpsamenos, Apsephion, whoallegedly didnotsay very much.13 Andwhat wasthe social status of the four anony12 For a recent suggestion along these lines, see Christ (1998: 34). 13 Even Polyeuktos, the main prosecutor of Euxenippos (Hyp. 3), has caused problems in this regard: although histribal affiliation (Aigeïs, Hyp.3.12) lends support totheconventional identification of himasPolyeuktos Kydantides (pace Worthington [1992: 222]), doubts remain over thequestion whether he,Polyeuktos of Sphettos, oryetanother Polyeuktos wasthedefendant in

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mous persons whovolunteered as elected katêgoroi in the Harpalos apophaseis alongside prominent citizens like Hypereides andStratokles?14 We know little or nothing about these people, andasforsuchindividuals asarereferred tocollectively by the term hoi katêgoroi, it is obviously impossible to attempt any identification at all. The danger of the argument from silence lies above all in its inherent tendency to become circular. There is a large number of prosecutors involved in attested public actions whocannot beidentified, because they are mentioned bytheir first name

alone, without patronymic or demotic, andwithout any information about their political activities other than the particular trial in which they were involved. In those cases where weknowthefirst name of a litigant butabsolutely nothing else, thetemptation toidentify himwitha person ofthesamenamewhois already known as a liturgist or a decree proposer is very hard to resist, especially if it is assumed a priori that active political participation was defacto the privilege of a small section of thecitizen body.15 In some cases wedonotknoweven the first name, ὄνο μ α , of a public prosecutor; butthen the historian is facing a temptation to infer that, since this litigant wastaking part in a high-risk, high-profile public action, he must have been wealthy enough to face thefinancial risk of a fine of a thousand drachmai and sufficiently well educated to cope with the huge task of addressing the court for a third of a court day –so he probably belonged to the élite... 72), it canbe inferred From lists such as that produced byHansen (1989a: 34– legitimately that manyattested andidentifiable litigants seemto have beenregular participants onthe politico-legal scene, andthat some or most of these very active 118]). But this does not necessarily citizens were wealthy (cf. Ober [1989: 112– mean that they monopolized the bêma in the dikastêria to such an extent that we should regard addressing thecourt as katêgoros as anélite prerogative. Theargument concerning thefinancial riskimposed forveryunsuccessful prosecutions is of course extremely important, although it is difficult to assess theprecise significance of this risk. Wehave nowayof deciding onthe basis of the available evidence whatwasthemostlikely type of defeat fora prosecutor: anout-andoutdefeat, or defeat by a narrow or narrowish margin. Weknowat least four examples of verdicts where thelosing grapsamenos obtained more than a fifth of the

141] cat. no. anendeixis brought against thebouleutês Polyeuktos in326/5 (Hansen [1976: 140– 31), and wecannot establish with certainty if he was identical with Polyeuktos the stratêgos (see e.g. Hansen [1989a: 57] whoprefers separate entries forPolyeuktos Kydantides, Polyeuktos thestratêgos, andPolyeuktos Sostratou Sphettios). Hypereides’s speech indefence of Euxenippos contains sufficient information to allow the conclusion that the Polyeuktos whohad initiated theeisangelia against Euxenippos wasindeed a well-known figure inAthenian political life; but his case also illustrates the tendency for known Athenian figures to accumulate more entries ontheir curricula vitae thanarestrictly warranted bytheevidence. 5). 14 Forthewealthy background of Stratokles, seeDavies (1971: 494– 15 Theexamples of suchidentifications arelegion; andI plead guilty tothecharge aswell(Rubinstein: 1998). Forthatreason, thecases thatwereidentified asprosecutions involving prominent individuals inChapter 3: 2bnumbers onlysuchtrials where wehaveadditional information that mayhelp usdetermine thestatus andpolitical profile of thepersons concerned.

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votes.16 There arealso examples of quite narrow victories fortheprosecutors.17 An assumption that mass psychology would be most likely to produce either staggering victories or spectacular defeats is thus not warranted by the evidence. Nevertheless, the risk would undoubtedly have deterred some from venturing to bring heavyweight public actions ontheir own. Ontheother hand, it cannot be ruled outthat ordinary citizens might feel more confident about bringing a public action if they could rely on synegorial support from other citizens, whether friends of thelitigant himself orenemies of his oppo950 nent. Note in this connection that the sykophant in Aristophanes’ Wealth 944– goes off insearch of a potential fellow prosecutor, sothattogether theymaytake on Wealth in a trial for subversion of the democracy. The young manwhodelivered [Dem.] 58 claims that whenhehadinitiated hisendeixis against Theokrines hehad relied onthepromises of active support byTheokrines’enemies, whohadsubsequently madetheir private peace withthedefendant andleft themuchtoo inexperienced prosecutor inthelurch ([58].4). Furthermore, anordinary citizen whowished to have hissayina political heavyweight action mayhave been able toparticipate actively without running anyfinancial risk atall, if hejoined in analready existing prosecution team as a synkatêgoros rather than as ho grapsamenos or ho endeixas

a priori

velsim.

To be sure, most ordinary people maystill have found it extremely difficult to upthecourage to address a huge audience, evenforaslittle asfive minutes.18

pluck

But in that case they would be stopped only by their owntimidity, notby excessive financial risks or by the prospect of a rhetorical task that would presuppose an expensive education oranexpensive prepared script (the useof which would of course require a high level of literacy). However, even if it could be demonstrated that, in reality, only fewordinary Athenians availed themselves of theopportunity of participating actively in public prosecutions atthelowest possible level, theavailability ofa low-risk, low-cost and low-skill type of active participation must still be considered significant. For the very existence of this option removes one of the most glaring contradictions between democratic ideology, which stressed thattheopportunity tohaveone’s sayon political matters should be open to all, andthe statutory risks connected with public litigation which are frequently held to have restricted the real possibility of active participation to thewealthy, well educated andpowerful. It maybeargued that thedistinction between élite litigants andtheir more humble fellow citizens would still remain in place; butthat the main distinction would be between full andlimited active participation. Andit is true that when citizens of 16 Isaios 3.37 (a graphê xenias in which the defendant Nikodemos was acquitted by only four 213). votes); Hyp. 3.28; Aisch. 3.252; IG II2 1641B with Stumpf (1987: 211– 17 Plato Apol. 36A; Dem. 21.75. In theeisangelia against Kephisodotos, thedefendant’s penalty proposal prevailed over theprosecutors’suggestion bythree votes only (Dem. 23.167), andin thegraphê nomon mêepitêdeion theinai against Philip son of Philip the defendant’s penalty ο υ ς(Dem. 24.138). proposal wasaccepted π α ᾽ὀλίγ ςψήϕ ρ α 5 that the majority of people are afraid to speak upincourt, 18 See e.g. theremark in Dem.23.4– andthat it never occurs to themthat they might examine matters of common concern.

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skill and repute are criticized for not having brought public actions against their powerful peers, the verbs κ ρ (‘bring to trial’), γ ίν ω ϕ μ ο ρ α ά ι(‘bring a graphê’) and γ (‘bring animpeachment’) arenormally used, indicating thatpersons of έλ λ γ ω α εἰσ high standing areneeded precisely for thepurpose of initiating the actions.19 However, the flexibility in rhetorical rôle-division between main prosecutors andsynkatêgoroi points in a different direction. There is noobvious fixed rhetorical hierarchy to be detected in theactual speeches. Some main prosecutors delivered long speeches with shorter synegorial supplements; in other cases it wasthe other wayaround. And, as noted in Chapter 4, eveninrelatively short supplementary synêgoriai theattested prosecution synêgoroi donotdefine themselves as mere assistants to the main prosecutor. They represent themselves as proper katêgoroi whohave their owncontribution to make, andwho aredriven by their owndesire to bring thedefendant tojustice, rather than by loyalty to thecitizen whohadinitiated theaction. Neither can it be held that the rôle as synêgoros in a public prosecution team would invariably be perceived as a low-status task, for even the most eminent of citizens areknown to havejoined prosecution teams assynêgoroi as well as initiators, as pointed out in Chapter 3: 2b. Although there wasconsiderable scope for tailoring each contribution to the team effort to match the level of expertise of the individual contributors, the relationship between main andsupporting katêgoroi within a given team is represented in thespeeches as essentially egalitarian, despite theunequal rhetorical burdens of theparticipants. Asnoted inChapter 4: 4, theexistence of prosecution teams composed from a multiplicity of rhetorically independent individuals calls for a modification of the current reconstruction andinterpretation of public actions as opentrials of strength between twoconcrete individuals, thedefendant andtheprosecutor. Andthere is yet another feature of prosecution rhetoric which presents aneven greater problem to thecurrent interpretation, namely the wayinwhich prosecutors –mainprosecutors andsynêgoroi alike –talk about themselves. The interpretation of public actions as intensely personal agônes, as battles or competitions for personal honour andstatus between individual members of the élite, has developed, in part, as an explanation of a particular feature of Athenian court rhetoric which has baffled later observers: the wayin which litigants bring arguments relating to their personal standing andservices to thecommunity to bear onthecases they arefighting. Until recently, such arguments have tended toevoke hostile comments from historians whohave adduced the status-related topoi as an illustration of how the courts, manned by a fickle and ill-educated dêmos without the guidance of a professional judge, could be ledastray by irrelevant considerations andextraneous information, that is, irrelevant andextraneous by our standards.20

40; Hyp. 3.27–30; Dein. 1.100–102. 19 e.g. Dem. 25.38– 20 e.g. Egger (1862: 380–381), Bonner (1905: 11–14), Lofberg (1917: 10–19), and in more neutral 9). For a slightly different assessment, 920) andWolff (1968: 8– 15: 919– tones Lipsius (1905– see Wolff (1969), butevenhere there is a clear attempt todistinguish between rhetorical tactics andtrue legal issues. See further the citations from more recent scholarship in Powell (1988: 300). 299–

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However, overthelast fewdecades there hasbeena marked change inthestance of historians inthis particular regard. Rather thansneering attheAthenians forhaving failed to live upto ourexpectations of ‘ideal’ c riminal justice, it is argued that these recurrent status-related arguments formed anintegral partof the legal process in high-profile public actions. If a given type of argument is voiced over andover again by Athenian litigants, andif it is given pride of place in forensic oratory, we must assume that theargument wasconsidered notonly relevant, butin fact central

to the legal process itself by the participants. Andif litigants repeatedly invited their audiences to compare their worth ascitizens andsocial beings to that of their opponents, it should beaccepted that suchcomparisons werea crucial aspect of Athenian

litigation. The problem as I perceive it lies not with this intellectual approach itself (to which I subscribe wholeheartedly), but with its empirical foundations. The debate takes as its starting point the same passages that shocked scholars such as Bonner and Lofberg at the beginning of the 20th century. These passages stand out as conspicuous, precisely because they runcounter to the expectations of many modern observers;21 the main difference lies in thedegree of respect with which thehistorian is willing to confront the Athenian ‘other’. But the argument that general comparisons of the opposing litigants were central to such high-risk legal agônes rests ontheassumption that thestatus-related topoi occur regularly inthelitigants’speeches; yetthere hasbeennoattempt toconsider those speeches where thetopos does notoccur inorder to explain its absence inrelation to thecurrent interpretation. One speech that is frequently referred to as an example of a prosecutor who invites thejudges tocompare thedefendant’s entire life, social conduct andservices to the community to those of the prosecutor is Dem. 21 Against Meidias.22 D. Cohen (1995b: 243) claims in this connection that ‘this situation is by no means idiosyn-

21 Thequalification hasbeenadded because of thecultural differences of suchmodern observers, which also produce differences intheir legal expectations. Evenwithin thesame legal system, explanations and interpretations of flexible penal practices may in fact change considerably overtime. Asearly as 1866, §71oftheDanish Penal Coderequired thecourt totake thedefendant’s entire life into account whendeciding onthetype andseverity of thepenalty, asdoes §80 of thecurrent Danish Penal Code of 1973, which prescribes that ‘information about theperson of thedelinquent, including hisgeneral personal andsocial circumstances’influence thepenalty assessment. The main difference between the twoprovisions lies in the attempt of §71 to achieve anequal impact of thesanctions imposed bythecourts, a principle that is still applied in §51 of the current penal code. Thecommentary tothe obsolete §71 of the 1866 code suggests i.a. thatprison service onbread andwater would bemostacutely felt bya delinquent notusedto leading a life of deprivation, which would justify reducing thelength of theprison sentence for 759). But there is also a marked those normally living in ‘propitious circumstances’ (pp. 758– difference intherespective social bias of theoldandnewlaw: thecurrent legislation takes into account personal andsocial disadvantages, while the older law emphasized the delinquent’s previous moral andsocial disposition. According tothecommentary to§80 of thecurrent Penal Code, a reform madein 1973 ‘aimed toemphasize thepossible personal andsocial handicaps of thedelinquent as equal ormore significant factors’(p. 327). Once national andcultural boundaries arecrossed, thedifferences become evenmore pronounced. 243), Ober (1994). 22 Cohen (1991), (1992), (1995a), (1995b: 242–

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cratic, butis widely found throughout Athenian litigation, particularly among members of the élite.’ While it is true that sucharguments relating tothegeneral conduct of theopposinglitigants are found in a good number of private speeches (see Chapter 4: 4) and inmostdefence speeches delivered inpublic actions, Dem.21cannot inanywaybe considered typical whencompared to other public prosecution speeches. Of theremaining 27 surviving speeches, only three (Dem. 19, [53] and [58]) contain passages in which the prosecutors engage in lengthy self-praise.23 Leaving aside the prooimia in which some of the speakers state their personal motives for becoming involved in the action, the other 24 prosecutors seem remarkably reluctant to provide information about their ownconduct outside theparticular context of the legal action, except whenthey attempt toclear themselves of veryspecific attacks ontheir integrity expected from the defendants andtheir synêgoroi.24

The passages in which prosecutors state their motives for acting andanticipate specific lines of personal attack are extremely important for ourunderstanding of the position of volunteer prosecutors. But they will notpermit the conclusion that public actions hadastheir core a personal competition forhonour between prosecutor anddefendant. Rather, such arguments should be regarded as ancillary to the main line of prosecution, in so far as they served to establish the credibility of the speaker andthe validity of his attack onthedefendant.25 Since the weight of a particular argument depends to some extent on the person whoutters it, a successful attack ontheprosecutor’s integrity would undoubtedly contribute to theundermining of his general trustworthiness. But there is a considerable difference between that observation andthe claim that the assessment of the personality andstatus of the individual prosecutor mattered more than hisarguments relating to thespecific case whenthejudges decided ontheir verdict. When commenting on theprooimion of Aisch. 1, in which Aischines states his personal motives forbringing theaction, E.M. Harris (1995: 102) remarks that such comments areunnecessary for state-appointed prosecutors in the American system of criminal justice. In such modern adversarial systems, in which the state has a monopoly ornear-monopoly ontheinitiation of criminal actions, it is assumed that, as anemployee of thestate, theprosecutor will invariably actinthestate’s interest; whereas anAthenian volunteer prosecutor would have toestablish thejudges’trust

in his personal

integrity through

hispleading.

23 In [Dem.] 53 Apollodoros’narrative

serves

to highlight thecontrast

between

hisownhonour-

able behaviour andthebaseless andtreacherous character of hisopponent. Thespeaker of [Dem.] 68), presumably inorder tomaximize 58 places hisself-praise inthefinal part of hisspeech (66– its impact. Demosthenes’ self-praise in 19 relates exclusively to his conduct in regard to the

24

25

peace process andtheembassies to Macedonia. There is noinformation onhisother services to thecommunity. The following prosecution speeches contain anticipation and refutation of specific personal 169, 136, 167– 19; Aisch. 1.135– 8, 17– attacks on the prosecutors (antikatêgoria): Lys. 30.7– 52. 8, 25.37; Dein. 1.48– 223; Dem. 22.1– 218, 221– 4, 23.187–190, 24.7– 132, 217– 3.71, 116– For a similar point of view, see e.g. Wolff (1968: 19).

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Harris’argument touches

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ona crucial difference

Context

between volunteer prosecutors

and(ideally) objective prosecution agencies.26 Harris’point canbe further supportedby therhetoric of those prosecutors whohadbeen elected bythe Assembly, and

whose position comes closest to that of a modern state prosecutor. It is significant that the six speeches donotcontain anyattempts onthe part of the prosecutors to proclaim their personal motives for having engaged inthe action; andtheir rhetoric as a whole is remarkably impersonal in regard to the prosecutors themselves. Presumably, they had established their personal credibility already through their election to act as the voices of the polis.27 But if Harris’ contrast is accepted, we should still be wary of overstating the difference between Athenian court practice andthe pleading incriminal actions in some modern adversarial systems. It maywell bethat, intheory, thepersonal views andpersonal ambition of a modern state-appointed prosecutor are notsupposed to influence the way in which the prosecution is conducted.28 Ultimately, however, state-appointed prosecutors maytake thetrust of thejury andthepublic forgranted only so long as the politico-legal system which appoints them commands general respect andtrust as well. Danish defence lawyers sometimes include intheir strategies attacks ontheintegrity of the prosecution, normally through criticism of the conduct of the police with which the prosecution service is connected, both in terms of personnel and because state prosecutors will have to base their cases oninformation derived from investigations conducted by that agency.29 Attacks andallegations relating to the

26 27 28

29

Similar expectations exist in regard to the Danish State Prosecution Service, where no state prosecutor is allowed toplead thecase if s/he is inanywaypersonally involved init (Lawonthe Administration of Justice §97). Dem.25, [26]; Hyp. 1;Dein. 1,2, 3. Aspointed outinChapter 4 n. 18,theopening partof Hyp. 1 canbe restored with some certainty, andthis would be theplace where wemight expect the prosecutor to comment onhisownpersonal reasons for getting involved in thelegal action. Theaspect of personal ambition andits influence onhowindividual prosecutions areconducted isespecially relevant inthose systems where theposition asstate-appointed prosecutor ispartof a wider career structure. If further moves uptheladder aredetermined inpartbysucha prosecutor’s success in ‘winning’cases, it is notinconceivable that theprosecutor will have a vested personal interest insecuring as manyconvictions as possible. There arevarious means of controlling the conduct of state prosecutors: in Denmark they will be bound notonly by formal regulations related to the so-called ‘principle of objectivity’by also by the less formalized con152]). Gammeltoft-Hansen (1998: ceptof prosecution ethics’(Gammeltoft-Hansen [1998: 150– 152) mentions asanexample of aproblematic case a trial byjury conducted in 1983, concerning ‘ the rape andmurder of a small girl. Already in his initial proceeding theprosecutor presented thejury with a number of photographs of hermaltreated body ‘which could beperceived as an attempt to appeal totheemotions of thejury andinstil into thema feeling of disgust towards the defendant right from theoutset’(mytranslation). InDenmark, police, prosecution service, andcourts alloperate under thecontrol of theMinistry of Justice, and this is perceived as a problem by some politicians. On 22 Feb. 1996 it was debated inparliament whether thepolice should bemoved to a different administrative sector, with direct reference to the English separation of police andprosecution service enacted in 1986. This suggestion wasnever followed up.Onthe problem relating to the lack of distance between police andprosecution service in Denmark, see further Gammeltoft-Hansen (1998:

156).

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conduct of individual police officers (and their personal attitudes in regard to the race, gender andpolitical orientation of individual defendants) maythus form part of defence strategies incertain cases. Furthermore, inadversarial systems thediscretion exercised bytheprosecution service in deciding which actions to bring to court andwhich to abandon is nearly always problematic: in principle the state has a monopoly or near monopoly on deciding whento proceed andwhen notto prosecute, butthat discretion is necessarily exercised by individuals. In such systems the prosecution service depends on thepublic trust inits integrity as aninstitution andin thelaws that regulate it, as well as in the integrity of the individuals whoare employed by it.30 If for some reason that trust is lost, and the public becomes suspicious of the motives underlying the decisions onwhen to prosecute, the general trust in the integrity of the administration of criminal justice as a whole will be injeopardy. Onereason fortherhetorical efforts onthepart of Athenian katêgoroi to establish their personal trustworthiness maybe found in theAthenian reluctance to trust implicitly inthe integrity of those agents whoacted or claimed to be acting onbehalf of thepolis (that is, their magistrates aswell asindividual volunteers). This lack of trust provides ample explanation for the personal attacks on individual prosecutors and their attempts to anticipate the diabolê engaged in by the defendants and their synêgoroi.31 If the attack on a defendant was made jointly by multiple katêgoroi it is likely thatthis would maketheteamasa whole less vulnerable topersonal attacks directed against its individual members. Although one badly rotten apple might well ruin the entire barrel, it is not inconceivable that thecredibility of the prosecution’s case in itsentirety might bestrengthened if thecase wasvoiced bya large number of people rather than by a single individual, especially if the katêgoroi claimed to be advancing their arguments independently of each other. Asnoted inChapter 4: 2 it is likely that prosecution strategies mayhave varied considerably between individual cases. Butthatobservation initself undermines the attempts to impose a uniform interpretation of Athenian public actions as trials of strength between clearly defined protagonists. Themajority of surviving prosecution speeches were delivered by katêgoroi whoconcentrated their efforts on attacking the defendant rather than bragging about their ownachievements andgeneral per-

30 Onproblems relating to thediscretion necessarily exercised bythestate-prosecution service in 159 and 179– 63, 157– an adversarial system (Denmark), see Gammeltoft-Hansen (1998: 59– 191). Foraninteresting andsubversive contrast drawn between English andAthenian prosecution initiatives (from which it might even be inferred that the Athenian openness in admitting that considerable individual discretion has to be exercised in deciding which cases to bring to court hasdistinct advantages overcurrent English practice), seePowell (1988: 300 with n.273). 31 For a general discussion of the Athenian lack of trust in their ‘agents’, see Rubinstein (1998: 135). Onthepossibility that a prosecutor witha personal criminal record might undermine 134– ει, λ ό π ῇ ο τ π ρ α κ ρ ω ν ςἐ α ν ἄ θ υ ν ὶτοιοῦ ἄ ἰτοίν τ ό ιν ίςἐσ τ ςτ hisowncase, seee.g. Dem.25.39: ε ίω ςἢ τ ε , εἰδ ῖν ] ζη σ ν ο ὲδικα τ α α ν τή α ὶσυκοϕ ιν α[κ τ ά τ νκρινοῦν ὸ υτ ο π ὸ ςτρό τ ν α κπ ο ἷο ςἐ ι τ τ ί; ὅ ιὰ ῷ .δ τ ο νἑα ᾽ἢτοῦ υ τ τ ρ ο σ τ ο ν νὄ ἧ ιμ ο τ εὕ ν ιχ ρή ᾽ἂ ν ν έ , οὐδ ν ρ τ ίζ ο ειν η δ ὲνϕ ω ἀ δ ίκ ςμ ῖ, ε ινδ ε χ ρ νὑπ ά κ τ ο τ α ν τ ςκρινοῦν ν εγ α ά α τ νἀ εξ α ὐ ὸ ὶπ νκ έλ ω λ νἄλ ν τ ῶ τ α ή ο σ ρ ο τ νκατηγ ὸ γ ω ϕ σ εύ ιν ἐκ εῖν ο π ἀ ν ο ι. ία ρ η ν ο π υ τ ο ύ τ ο ν ὴ τ ιὰ ὴ δ μ ἵν α

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sonal andsocial conduct. Theassistance rendered tomainprosecutors intheformof supplementary attacks by (allegedly) independent co-prosecutors would have contributed to a certain extent to thedepersonalization of the prosecution’s case. However, thefour exceptions (Dem. 19, 21, [53], and[58]) constitute a warning against too much generalization in the opposite direction. Together the prosecution speeches indicate that Athenian public trials could take many different forms, andthat verydiversity defies attempts toimpose a single interpretation orexplanatory model onourmaterial as a whole.

2. ‘Straw men’, ‘deserters’, and‘saboteurs’ Intheprevious section, attention hasbeendrawn to a number of advantages of the practice of permitting several prosecutors to take part in a public action. Theoption of risk-free participation on a prosecution team made it possible for the average citizen to have his say, if he so wished. The rhetorical burden falling onthe volunteer prosecutor would also have been reduced: the participants on the team could decide ontheir strategy in common32 anddistribute arguments among themselves, so that each prosecutor could concentrate his pleading in areas where he felt most experienced andwould carry most weight with theaudience. Noonemember of theteam would beforced tokeepupa sustained andtaxing oral performance for several hours, andtheteamcould match thelength andcomplexity of each of thecontributions to therhetorical capacity of the individual participants. All of this mayhave made it a realistic prospect for a non-élite citizen to engage actively in a public action if he felt that the action wasimportant, andthat he would have something to say. Additionally, attention has been drawn to the wayin which team-based prosecutions might havehelped toincrease thenumber ofcases that would actually have reached the courts once they hadbeen initiated. The team as a whole would have been less vulnerable to bribery andintimidation, andthe members would presumably have kept aneyeoneachother aswell. However, just astheAthenian formal principle of collegiality didnotsucceed in eradicating theproblem of corrupt officials, sotheless formalized collegiate nature of prosecution teams inpublic actions didnotprevent sharp andevenillegal practices inthis areaof Athenian political life. Infact, it wasprecisely thecollegiate nature of such teams that made it possible for individual citizens to gain illegitimately from the opportunity to participate. Andthis brings us to the apparent paradox of the ‘sykophant’. It will be argued that wemaygain a better understanding of the Athenianuneasiness about abuse of their legal system if activities normally labelled ‘sykophantic’bythem are seen inthecontext of team-based litigation in public actions. 32 Thattheteams didsoinadvance isclear fromthemanyreferences topreceding speakers inthe extant synêgoriai (see Chapter 4: 2). See also Lyk. 1.59, in which Lykourgos claims that the defendant Leokrates has been instructed by his synêgoroi on what to say in his owndefence speech.

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It would be outside the scope of this work to do justice to all that has been written on the phenomenon of the sykophant. A full account of the debate can be found in Christ (1998), whoalso draws attention to the many ideological conflicts that surrounded the institution of the volunteer prosecutor. Traditionally, modern scholars have regarded thesykophant asa citizen who(ab)used hisdemocratic right to bring legal actions to further his ownfinancial ends. Some scholars, notably Lof85), have argued that sykophancy can even be regarded 19 and 73– berg (1917: 18– as a p rofession’, andthat there were citizens whomade a living exclusively from their‘activities in the democratic courts. According to this view, the sykophant was in effect a perverted cousin of themodern professional lawyer: a legal expert who made a living from his trade, butwhose activities were bydefinition unlawful because of the Athenian insistence that the participants in anylegal process be amateurs who, in most circumstances, would not stand to gain financially from their participation. Oneproblem arising from this reconstruction is to decide precisely howa citizencould make money from his activities in the courts. While a litigant whohad fought andwona private action might gain financially, it was acknowledged by 47) that ordinary dikai provided fewfinancial opportunities for Lofberg (1917: 46– his professional sykophant, because such actions could bebrought only bypersons whowere directly andpersonally involved inthecase. Hence Lofberg, andmostof hissuccessors withhim,preferred toassociate thesykophant first andforemost with public actions, which could be brought by ‘anyone whowished’. It is problematic for this reconstruction that the majority of public actions did not offer anyfinancial rewards for the prosecutor whobrought them. For that reason, modern scholars have normally associated the sykophant with the few types of procedure in which a successful prosecutor wasrewarded, notably phasis andapographê; butabove all it hasbeenassumed that thesykophant madea living primarilybythreatening tobring legal actions andthendropping theminreturn fora bribe. Paradoxically, themainsource ofincome forsucha sykophant wasgenerated byhis willingness not to use his legal skills in court, although oursources seem to agree that litigious hyper-activity was one of the primary qualities of the p rofessional ‘ sykophant’. Although later scholars have been more reluctant than Lofberg to accept the existence of truly professional sykophants in Athens, the view that ‘sykophant’was a designation applied to citizens whoabused the legal system for financial gain largely went unchallenged until it wasquestioned byOsborne (1990). Osborne argued that there are only relatively fewattestations of actual phaseis andother actions that carried a reward for theprosecutor. This undermines the traditional view thatthese particular types ofprocedure wereespecially favoured bycitizens whoare believed to have made a living from thecourts. The other important objection made by Osborne is that the noun ‘sykophant’ andits cognate verb often carry theconnotations of over-litigiousness andrhetorical proficiency, andthat, according to Osborne, is a reason whythe word sykophant was often used by litigants whospoke as defendants in private actions. This sits uneasily with the traditional viewthat thesykophant made most of his living from

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notgoing into court, i.e. from blackmail. The mainconclusion drawn in Osborne’s investigation is that ‘sykophant’ was first and foremost a label that litigants would useto signal disapproval of thelitigious behaviour of their opponents, andthat we should bewaryof understanding thesykophant-designation asanything other thana rhetorical redefinition of thequalities normally associated with the ideal boulomenos whowasthecornerstone of thedemocratic administration ofjustice. Some of the problems raised in Osborne’s article have recently been followed upbyChrist (1998), inwhose account (1998: 72–117) particular attention is paidto thedifferent categories of sources forthephenomenon. Christ notes thedifferences between the representation of the sykophant-phenomenon in sources written for a highly literate andpresumably wealthy audience ontheonehand, and,ontheother, the way in which the word is used as a term of abuse in texts written for public performance, especially inthelaw-court speeches. Theformer tendtocast thesykophant as a citizen of lowsocial standing, whogains financially from his right to act as ho boulomenos by harassing the wealthy with (groundless) law-suits, which will bejudged by Athenian riff-raff with anoverwhelming desire to strip their wealthy fellow-citizens of their assets, or even their lives. The latter category of sources, however, also represent thesykophant asa problematic, evendestructive, character whobyhisactivities undermines thelegal system andtheentire community withit. Herein lies another paradox, towhich Osborne (1990) hasdrawn attention, and which has been explored further by Christ. If the sykophant was fundamentally a stereotype created by the Athenian élite as a wayof venting their dissatisfaction with the democratic courts, it is anintriguing question whythe dikastai, to whom thelaw-court speeches would beaddressed, could beexpected togive a sympathetic

hearing to complaints about sykophantic behaviour. Christ notes rightly that the version of the sykophant presented to the audiences of dikastai has largely been stripped of its overtly class-related connotations. The sykophant stereotype asadapted toa democratic audience wasnolonger necessarily pooraswell as destructive: hewasonly destructive. According toChrist (1998: 70– 117), the ordinary Athenians manning the courts would be willing to 71 and 116– accept this modified version of thestereotype partly asa result of a general desire to maintain civic harmony andunity. Byjoining theélite indefining thesykophant as an outsider andas ‘un-Athenian’, the dêmos hadrecognized the persisting social tensions within their community andacknowledged the legitimacy of thecomplaints voiced by the élite, while at the same time participating in the creation of a common enemy whocould bedefined asanobject of hatred byrich andpooralike. Inreality there wasnoclear distinction between the sykophant andhoboulomenos; butthe sykophant as anideological construct wasa repository for all thenegative andextreme types of behaviour associated with thedemocratic courts. While Christ’s argument is attractive, it is worth stepping back for a moment from the hypothesis that ‘the sykophant’ was essentially an ideological construct created andpromoted by the Athenian élite, inorder to consider if sykophantic behaviour might haveconstituted a real problem inrelation totherunning oftheAthenian court system from a genuinely democratic point of view. In order to answer that question we need to return to the apparent paradox inherent in the traditional

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scholarly accounts of thephenomenon, namely that thesykophant, whose defining characteristic wasthat heengaged inexcessive litigation inreturn formoney, would at thesame time generate mostof hisincome bynottaking cases tocourt. The financial dimension of sykophantic behaviour wasemphasized byHarvey (1990: 110– 112) in a direct response to the article by Osborne referred to above. Theevidence adduced byHarvey insupport oftheviewthat ‘money-grubbing’was an important characteristic of ‘the sykophant’ is incontrovertible, but its implications deserve further discussion. Harvey (1990: 112) suggested three methods by which the litigious Athenian might gain financially: 1) by blackmail, 2) by bringing prosecutions that would carry a reward, and3) byprosecuting people inreturn fora fee. The first is difficult to explain, given the existence of penalties for dropping public actions: a citizen might get away with abandoning a public action in return for money once or even a couple of times; but it is hard to see howit would have been possible for anyone to engage in this type of behaviour on a regular basis. Moreover, if themaincharacteristic of ‘thesykophant’would behiswillingness not to take cases tocourt, provided that hereceived a reward forhispassivity, this may be heldtoconflict withthecharacterization of thesykophant inmanyof oursources as hyper-litigious. Harvey’s second method must be abandoned, if weaccept Osborne’s argument thatthepublic actions carrying rewards donotseemtohavebeen especially favoured bylitigants compared to other types of public action. Harvey’s third method is a distinct possibility, although some problems arise as to how this would have beenapplied inpractice. It will besuggested here that thephenomenon of team-based public actions can adda newdimension to the debate andprovide some answers to thequestion of howit might be possible foranAthenian to profit considerably andillegitimately from his involvement in public prosecutions of the type that did not offer the prosecutor a reward. It will be argued that there were indeed three waysinwhich a litigant might gainfinancially fromanordinary public action. As indicated in the title of this section, the people whoprofited from such activities maybedubbed respectively ‘straw men’, ‘deserters’, and‘saboteurs’; although the same individual mayof course have engaged in anyof these practices, according to whathefound mostexpedient oneach particular occasion.

1)The ‘straw man’, i.e. thecitizen whoagreed to launch other people’s actions in hisownname inreturn formoney, hasoften beendiscussed byscholars inconnec52) regarded it as comtion with the ‘professional’ sykophant. Lofberg (1917: 48– monpractice that wealthy menwould employ highly skilled citizens to fight public actions against their political rivals andenemies. Harvey, too, suggested (1990: 112) that a sykophant might be hired by a wealthy citizen to fight his legal battles for him, ‘presumably because hewasanabler speaker than themanwhohired him’.

The law-court speeches dosuggest anawareness onthepart of the Athenians that some citizens might pay others to bring prosecutions.33 A celebrated example, often referred to by modern scholars, is that of Euktemon, whohadallegedly been

η δ ὲσ υ κ ο η ϕ ); Aisch. 1.20 (μ ά ν τ ς η υκ ), [59].43 (σ ς ν ο ϕ τ ά ο κ υ 33 e.g. And. 1.122; Dem. 21.103 (σ ϕ α ν α τ ρ μ ί α , ὅπ χ ᾽α ύ β ω ἰτ είτ ῶ α ςἔσο ὶσ μ ω ισ θ ω θ είς ); cf. Aristophanes Knights 1255–1256 (κ ). ϕ ν εὺ ςδικῶ ρα ογ ὸ ςὑπ ν α ιΦ ο σ

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hired by Meidias to bring a graphê astrateias against Demosthenes (Dem. 21.103). According to Demosthenes, the case wasbrought with the sole purpose of publicizingDemosthenes’ name as a defendant in a public action for avoidance of military service, andtheaction wasnever brought to court. However, as mentioned above, it is hard to see how this type of practice could beregarded asparticularly disruptive ordangerous totheAthenian legal system asa whole, unless it is assumed that people whobrought public actions inreturn forpay would normally take the cases all the wayto court. After all, Euktemon was legally prevented from initiating another suchaction again, as Demosthenes himself points out. The traditional reconstruction of the habitual sykophant as an ‘agent’presupposes that such people would be sufficiently skilled to plead their cases in such a waythat they would receive therequired 20% of thejudges’votes. Asfarasthegeneral argument ofLofberg andHarvey isconcerned, namely that rhetorically skilled citizens would consent to fight other people’s actions on their behalf, we may wonder why they would want to do so. Presumably, if they were highly skilled andexperienced, they would have had a political profile of their own andtheir ownlegal battles to fight. 52) felt the need to In this connection, it is significant that Lofberg (1917: 51– identify three individuals asDemosthenes’hired agents andminions: Euthykles, the trierarch whodelivered Dem. 23, andwhohadpreviously been involved in a highprofile eisangelia (cat. no. 17), Diodoros, andEuktemon (cat. nos. 19– 22). Allthree appear to have hadpolitical profiles of their own. Lofberg’s characterization of them is thus notparticularly convincing; andthat poses a serious problem forhisgeneral interpretation. Finally, it maybe asked what would have motivated wealthy and, presumably, ambitious citizens to payothers to fight their court-room battles for them, while they themselves stayed outof the limelight.34 Theproblems raised bythereconstruction ofLofberg andHarvey maybesolved in part if this particular variant of sykophantic behaviour is understood in thecontext of team-based public actions. First, as hasbeen argued previously, assuming legal responsibility for a public action didnotnecessarily impose a great rhetorical burden on the person whochose to doso. This appears, for example, from Theomnestos’ultra-short contribution to thecase against Neaira (cat. no. 27) andApsephion’s speech in the case against Leptines’law, which was allegedly equally brief (cat. no. 18). Lofberg’s andHarvey’s highly skilled andlegally astute ‘professional’ sykophant thus is not a sine qua nonfor this reconstruction.

34 According to Thucydides 8.68.1, Antiphon theoligarch didprefer to keep a lowpublic profile while offering advice to fellow citizens involved in agônes in the Assembly andcourts. But Antiphon clearly hadno political ambition that wascompatible with thedemocratic set-up of hispolis; and, according toThucydides, hisreason for preferring to master-mind legal actions

fought by other people was that he knewthat he did notcommand the trust of thedêmos. In any case, Thucydides’account suggests that Antiphon’s behaviour wasexceptional. See, however, Dem. 18.249 inwhich it is claimed thatconspirators against Demosthenes used ‘straw men’as α ὶ a screen, andthat the conspirators didnot initially want their involvement to be known: κ ε γ , εἰσαγ α ς μ α ὶγραϕ ,κ ε ῖν τ ιε ο ὲπ ὰ τ , εὐθύν α ῶ κ ςἐμ ῦ ς τ ὰ ὲ α ελ ςκα σ υ ιμ τ ν νο σ ά ω ἐπ τ ν ἷςἦ μ ᾽ὑπ ελ ά λ ισ τ μ ά ν ι᾽ὧ δ ὰ ν ,ἀ λ λ ο τ ρῶ επ όγ ντ ῶ τ ὐδ ι᾽ἑαυ ο ι, ο ν γ τ ό νμ ω λ ία α ᾽ἐπ τ ν α τ ςπ ά α τ ῦ β α ν ο ν γ ἀ ν ή ο σ εσ θ α ι...

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However, the designation ‘straw man’is far more appropriate than Lofberg’s agent’whenapplied to a person whoacted as hograpsamenos for a fee. It is per‘ conceivable that citizens of modest means andwith no particular personal fectly ambition or rhetorical abilities might have been tempted to take on the rôle of ho grapsamenos if the fee offered was high enough, and if they could be certain that they would receive adequate assistance incourt. And this brings us to the next point, namely that of the motivation of those wealthy citizens whomight see anadvantage inpaying another citizen to take legal responsibility fora public action. Because team-based prosecutions were anaccepted andwidespread practice, paying somebody else to act as ho grapsamenos did not mean that the paymasters themselves would have to remain backstage. It has been argued in Chapter 3: 2b that there wasno obvious fixed rhetorical hierarchy between ho grapsamenos andhis synkatêgoroi within attested prosecution teams. Thus, wealthy citizens who wished to demonstrate their skills and political clout in a public action would be able to do so, butwithout running the risk of having their wings clipped as a result of the partial atimia that would be imposed onhograpsamenos for gaining less than the required 20% of the vote. Thatthepractice wasfarfromunknown maybeinferred fromtheopening paragraphs of [Dem.] 53. Here Apollodoros makes a virtue of not having persuaded 2): ‘NorwasI so another citizen tobring theapographê against Arethousios ([53]. 1– short of finances or friendless that it would have been impossible for me to find ὐ ᾽α δ ὖοὕ ϕ τ ιλ somebody whowould act ashoapograpsôn’ (ο ω ο ςἄ , ρ ς π ο ο ςἦ ᾽ἄ ν ο δ ὖ ). ρ ά ψ ν ο τ α γ ἀ π ο ν ὸ ε ρ ῖντ ᾽ο ὐ κἂ ν ἐξ ὥ σ τ ευ Tobesure, Apollodoros claims thathehadshied awayfromdoing sobecause it would be perceived as a token of his insincerity andwould have undermined his claim incourt that hewasa personal enemy of his opponent.35 Undoubtedly, there was that risk for any wealthy prosecutor who participated as a synkatêgoros in a public action, especially if it hadbeen brought by a citizen of a considerably lower social status than himself. However, if he hadjoined in a team with several other citizens that risk would have been reduced. For a possible example of such a prosecution team, see Aischines᾽account (2.14) of howPhilokrates᾽political rivals had setupa prosecution against him, ‘having written thenameofLykinos onthegraphê’ ὴ νἐπ (Λ ρ α μ ϕ ιγ ψ εν υ ά ο ι). In anycase, the evidence discussed in κ ῖν ρ ο α γ νἐπ ὶτ ν ὴ Chapter 3: 2bshows that many prominent citizens didnotshare Apollodoros’professed reluctance to act as synkatêgoroi inother people’s actions. The grapsamenos whodelivered only a short contribution in the action that he hadbrought would have hadto eliminate any suspicion that he hadinitiated the action in return for pay. From what weknow about the speech of Apsephion in the action against Leptines’law, it appears that hehademphasized his rôle as his dead father’s successor: his father hadoriginally initiated theaction andApsephion now

35 ThatApollodoros envisages thepossibility thathemight havepersuaded

another citizen totake

ὰ λ λ on the prosecutor’s risk andstill have addressed the court himself is suggested by [53].2: ἀ ᾽ δ ν ο , ἕτερ ν ό ς τ τ ὲ α ο ὐ ν εν ο μ ςδεινότα εἶν ιμ α α ι, ἀ δ εῖσ θ ικ η ά σ γ ἡ ν ω τ ν ά ιςἁπ ο π ρ ώ θ ν ν τ ν ἀ ῶ ἐ , ν ιο ρ ή ,κ α οτεκμ ρ έχ ιςτο τ ειν ὶεἶν ο ῦ ιτούτ ιἄ α α ντ π α μ ο υτοὔν ο μ έν υ ο δικ ῦἀ ο ῦτ ο ρἐμ ὲ π ὑ μ ι... α ο δ εύ ςψ ν ,ὥ α ρ ς ᾶ μ ν ρ ἔχθ ὴ ιτ π ιμ ςὑ ο ὸ έγ λ ὼ εἐγ τ ο π ὅ

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it up.Asnoted inChapter 4: 2, Theomnestos goes outof hiswayto stress that hewasasgravely affected asApollodoros byStephanos’activities, andhealso claims thatit wasoutsiders rather thanApollodoros himself whohadpersuaded him followed

to bring the action.

Even a speaker such as theyoung Epichares, whodelivered more than a token contribution ([Dem.]. 58) to the case against Theokrines, takes great care to stress his personal motives forbringing theendeixis, and, as noted in Section 1 above, this is one of the three prosecution speeches in which the speaker engages in general self-praise. In[58].42 thespeaker lets thecatoutofthebag. Heprofesses thatDemosthenes will refuse to testify against Theokrines, and‘the reason for that is notthe fact that I have been persuaded bysome to bring anendeixis against this man, but thefact that heandtheperson whohasjust beencalled aswitness have settled their ᾽α ἴτ ιό ν ἐσ ὸδ ιν τ ,ο ὐτ ὸἐμ ὲὑ differences’(τ π ότιν ω ν π επ μ εισ έν ο ν ἐν δ ε ῖξ α ιτ ο υ μ ρ ε τ κ α λ ο ύ ι ν α κ τ ἄ ὶ ν ὸ ο ν ν ῦ τ τ λ ὰο ο ί, ἀ λ δ ια ν τ ο λ ελ ύ σ θ α ι.) Inthis particular case thespeaker mayhave beenopento suspicion because of his youth ([58].41), butalso because his situation mayhave given grounds for thinkingthat he might have been paid to act as hoendeixas. Hestood to inherit his father’s atimia as a state debtor in anycase ([58].2), andif his supposed paymasters hadagreed tocompensate himforthefine, ourspeaker would havehadvery little to lose byacting as hoendeixas, even if hefailed to gain a fifth of thejudges’votes. That any democratically minded Athenian would take a dim view of this practice, at least in principle, should come as nosurprise. Notonly didit create a situation in which wealthy citizens might shift the risks connected with active political participation ontotheir less prosperous fellows; whatis farworse is that thecitizen whodidaccept money forsuchprosecutions hadcompromised hiscivic dignity and integrity by ‘selling’ in return for misthos his democratic right to bring public actions. Incase it might seemunfair tothemodern observer that sucha person would be cast as the villain of the piece (i.e. as a sykophant), while his paymasters donotseem to have beenopento similar abuse, it is worth remembering Harvey’s comment on Athenian attitudes tobribes ingeneral (1985: 81): ‘if it wasnotmoreblessed togive thantoreceive, atleast it wasmorewicked toreceive thantogive.’Inhiscapacity as a ‘straw man’at least, thesykophant asanenemy of thepolis wasnota figment of the imagination of the Athenian élite. The citizen whodefiled himself by engaging insuchanactivity posed a threat tothevery heart of Athenian democratic ideology.

2) The ‘deserter’hadto be in possession of more rhetorical skills than his colleague the ‘straw man’in order to profit from court-related activities. The fundamental characteristic common tobothwasthatbothwere opentobribes. Inthecontext of a team-based prosecution the ‘deserter’would have professed himself willing to participate in anaction brought by another citizen, butwould have been persuaded by thedefendant topulloutof thejoint venture. Because hehimself hadnottaken legal responsibility for the action, hecould have done so without incurring the statutory penalty fordropping a public action: thecase would havecontinued; butthedefendantmight have stood a better chance of acquittal if he managed to buyoff one or several members of the prosecution team.

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Twoprosecutors complain that they have beenletdownby ‘deserters’ontheir teams. The speaker of Lys. 29 states at theoutset of his speech (29.1) that several citizens had originally declared their intent to participate in the action, and their failure toturnupis usedasproof thatthedefendant, Philokrates, is inpossession of money which his late friend Ergokles hadearned through embezzlement andbribery. The implication, of course, is that his fellow prosecutors hadbeen bribed to pull out. A similar allegation, albeit more veiled, is made by the young Epichares, discussed above. In [58].4 he claims that he has been betrayed (π ρ ο δ έδ μ α ο ι) by people whohehadtrusted would assist himin his prosecution, andwhohave now ‘settled’(δ ια λ έλ ν υ τ α ι) withTheokrines. Wereceive noinformation asto howthis settlement has come about, except a vague reference in [58].42 to a ‘conspiracy’ (hetaireia), butweareleft inlittle doubt thatthesettlement involved a quidproquo 43 where it is alleged that Demosthenes had pulled out because (see also [58].42– Theokrines hadagreed to drop anaction against himin return). The ‘deserter’as a type comes very close to thetraditional view of the blackmailing sykophant, except that hisrôle andimportance can, again, be fully appreciated only in thecontext of team-based public actions. Aspointed outabove, it has been perceived as a problem to the traditional view of the sykophant as a blackmailer that the Athenians imposed a penalty of a thousand drachmai andpartial atimia for abandoning public actions. Thewhole point of hisblackmailing activity wasprecisely that heprofessed himself willing todropthecase inreturn formoney; butit is hardtoseehowthelawscould leave scope foranAthenian citizen toengage inthis practice ona regular basis. In order to square this particular circle, scholars 88] andMacDowell [1978: 65]) have suggested thatcertain (e.g. Lofberg [1917: 86– public actions could be settled out of court andthat, in any case, the penalties connected with a public action would notalways beenforced. Asfarasthis last point is concerned, Lofberg assumed (1917: 87) thatthesanctions would nothavebeenimposed inpractice, because noonewould havetaken an interest in doing so, neither theofficials under whose jurisdiction thecase hadbeen initiated, northevictim whohadpaidLofberg’s professional sykophant todropthe action. Lofberg overlooks completely the possibility that the next victim onhis sykophant’s agenda would have hada very real andurgent desire to make sure that the penalties were imposed, andfast. This is initself a very important argument against hiscontention that a significant number of Athenian citizens would have beenable to make a living from habitually initiating andsubsequently dropping actions in return forbribes. Thus, the existence of the penalty of a thousand drachmai andpartial atimia makes it difficult to maintain that this type of blackmail was a serious and widespread problem, unless it is assumed that the Athenians were surprisingly lax in enforcing it, especially those Athenians whofound themselves under the threat of prosecution by anindividual known to have dropped a public action ona previous occasion. A way around this problem is to be aware of the possibility that some of the people whohadallegedly ‘sold’public actions were in fact deserting synkatêgoroi rather than actual grapsamenoi. Hansen (1976: 59 n. 23) lists fifteen examples of prosecutors whohaddropped public actions, apparently without having incurred the statutory penalty. Oncloser

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inspection, however, oneof these actions turns outto have been a dikê rather than a public action.36 Twomore mayhave been abandoned before they hadeven been initiated formally.37 Among theother prosecutors onHansen’s list onlythree canbe said with certainty to have taken legal responsibility for the public actions that they haddropped. Phrastor dropped a graphê against Stephanos ([Dem.] 59.53), andhe appears notto have beenpunished forthis. Thefact that Phrastor is willing totestify that hehaddropped theaction maysuggest that thesettlement between thetwohad been obtained by legitimate means; butthecircumstances remain mysterious.38 Epainetos of Andros allegedly dropped his graphê adikôs heirchthênai hôs 70) through a private arbitration. Since moichon against Stephanos ([Dem.] 59. 64– Epainetos was a foreigner who appears not to have been permanently resident at Athens ([59].67), thewhole issue of thefine andpartial atimia would nothave been of particular relevance to him. Finally, thenotorious Theokrines of [Dem.] 58 withdrew hiseisangelia kakôseôs orphanou against Polyeuktos ([Dem.] 58.32) and allegedly a number of graphai paranomôn as well ([Dem.] 58.34– 35). The passage is followed by a number of witness statements of which the first, apparently, confirmed that Theokrines had received a bribe in connection with a graphê paranomôn against Antimedon ([58].35); but the speaker does notpoint outthat Theokrines hadactually acted as ho grapsamenos. This is followed by other witness statements of the same sort’ ‘ vague. Oneof these cases, to which Dem([58].35), which mayhave been equally osthenes andHypereides are called to testify,39 maybe identical with the graphê paranomôn mentioned in [58].43, which allegedly petered out after Theokrines’ acceptance of Demosthenes’ plea of illness. This case wasdefinitely initiated by Theokrines, andthe method described here is referred to as a well-known wayin which a grapsamenos might wriggle outof his commitment with impunity. Oftheremaining examples onHansen’s list at least three maybeinterpreted as cases of ‘deserters’, i.e. citizens whohadthreatened to appear as synkatêgoroi but whohadlater deserted their teams. Aristogeiton pulled outof thegraphai against Demades (Dem. 25.47), butthe phrase ‘hedeserted thegraphai against Demades’ (τ ὰ ςκ α μ τ η ά ὰ ϕ δ Δ ) suggests that Aristogeiton haddeο υγρα ν ε ᾽ὡ ςἐξέλιπ ὰ θ ςοἶσ serted the ranks of the prosecution; there is no indication that he hadbeen legally

36 Theprosecution forasebeia byAndokides against Archippos wasa dikê ([Lys.] 6.11–12). For the existence of a dikê asebeias, see Dem. 22.27, but note the different presiding magistrates. However, the useof the verb lanchanein in [Lys.] 6 indicates clearly that thespeaker is indeed referring to a private action. 39) mayhave 37 Theproedros andthe thesmothetês whohadbeenexposed to hybris (Dem. 21.36– abandoned their cases before they hadeven initiated the procedures. For Demosthenes’ eisangelia against Kallimedon (Dein. 1.94), see also Chapter 3 n. 107. 38 Alternatively Stephanos mayhavecompensated Phrastor forthethousand drachmai, andPhrastormayhave been willing to live with hispartial atimia. 39 Wemaywonder howmany(if any) of the persons called as witnesses actually agreed to come forward to confirm the statements read outhere. In [58].42, at anyrate, the speaker makes a ρ υ ξ ο ο τ ὗ ς λ είτ α ω ὁκῆ point of Demosthenes’refusal tocome forward to testify onhisbehalf: κ ν ο μ έν εισ επ νπ ότιν ω π ὲὑ ὸἐμ ὐτ ,ο ιν τ νἐσ ιό ἴτ ᾽α ὸδ ή σ ι. τ ετ α β νο η α μ ν οσ θ έν η κἀ νΔ ὐ τ ὸ ι. α θ σ ύ λ ελ νδια ο εν μ ού λ ικα τ ρ ἄ ν ὸ α ὶτ νκ ο τ ῦ δ εῖξ ο ·ί, ἀ ἐν τ ιτουτο ὰ α λ ν λ

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responsible for the actions. As mentioned above, Theokrines’abandonment of the graphê paranomôn against Antimedon ([Dem.] 58.35) is referred to as anexample of howTheokrines wasprepared to pull outof legal actions inreturn formoney; but it isa distinct possibility thatthis mayhave beena case of ‘desertion’aswell. Given thecontext of Epichares’action against Theokrines, it is suggestive that Epichares does not state explicitly that Theokrines had dropped an action for which he had been legally responsible. The third instance is anaborted attempt to bring a graphê nomon mêepitêdeion theinai against Leptines while hewasstill personally accountable forthelawattacked in Dem. 20. In 20.145 it is alleged that, of three prosecutors whohadbeen involved intheprevious attack, onehaddiedbefore theaction, another hadbeen ‘persuaded’ ρ α εσ to cancel it, andthe third was ‘suborned’ (π κ ) not to prosecute. The ευ η ά σ θ difficulty here is to decide whether we are dealing with three separate actions or only one. If thelatter is thecase, thetwounnamed persons whohadbeen ‘persuaded’or ‘suborned’were probably synkatêgoroi of the late Bathippos, whois known to have taken legal responsibility for the action (20.144). On the other hand, if the speaker is referring to three successive attacks, it is worth noting that there is no information inthepassage toallow theconclusion that thetwoprosecutors inquestion didnotsuffer thestatutory consequences. In addition to thecases onHansen’s list there aretwofurther examples of ‘desertion’. Oneis Aristogeiton’s eisangelia against Hegemon (Dem. 25.47) which, in the light of the discussion in Chapter 3: 2c, is probably different from the graphê against Hegemon which Aristogeiton didbring to court and lost. The other is an action brought against Agathon the oil seller, to which Aristogeiton hadpromised to β ὼ ν α contribute, butfromwhich heallegedly pulled outinreturn for ‘something’(λ ). As noted above in Section 1, a silent Aristogeiton waspresent when ή π ο τ ε ὁ τ ιδ Agathon was acquitted. These concrete examples of ‘desertion’should of course be handled withcaution. The fact that ‘desertion’would undoubtedly be difficult to prove also means that litigants could throw such allegations at each other relatively freely. What they do show, however, is that the Athenians were very much aware of the possibility that supporting prosecutors might be bought off by defendants to the detriment of thecases in which they were involved. They also addsome substance to theclaim that blackmail wasa real phenomenon, andthis is borne outbyHarvey’s collection of nofewer than twenty-nine allegations of thepractice intheorators (1990: 111n.

27).

However, it must not be forgotten that what a defendant or élite writer would haveperceived asblackmail would mostlikely havebeenregarded asa bribe froma democratic point of view. Thefact that modern scholars still prefer theword‘blackmail’betrays a persistent tendency to seetheproblem of ‘malicious’litigation from the point of view of the élite. While deserting a prosecution teaminreturn fora bribe probably wasnotillegal

(except if the ‘deserter’wasanelected prosecutor whowasunder obligations to the dêmos), it would undoubtedly havebeenperceived assharp practice. It wasa method by which Athenians with a reputation for their skills in speaking (such as Aristo-

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geiton) might conceivably profit from threatening to participate in a public action without having to suffer thestatutory consequences if helater pulled outof thecase inreturn for a bribe. However, a prosecutor wholetdownhisteamwould assuredly have suffered in terms of hisreputation, especially if hedidsoonmorethanoneoccasion. Asargued in Section 1 of this chapter, the peer pressure onsuch teams mayhave been considerable, andtheinformal collegiate nature ofpublic prosecutions ofthistype probably provided some guarantee against the practice. If a member of a prosecution team felt uneasy about abandoning histeam openly, hemight prefer to optinstead

fortherôle of ...

3) the saboteur’. The possibility that a prosecutor could be bribed to proceed with ‘ butplead it so badly that the case would fail, has notbeen discussed in anaction, modern scholarship. Ananecdote attributed to the late fifth-century author Stesimbrotos by Plutarch Kimon 14.5 relates howKimon wasto appear as defendant in a trial in which Perikles hadbeen appointed as oneof his prosecutors. Perikles was propositioned by Kimon’s sister, Elpinike, whopleaded with him on behalf of her brother:

and Perikles smiled andsaid ‘Youare an old woman, Elpinike, too old to succeed in such things.’ E venso, he was very lenient towards Kimon in the trial, and he rose only once to contribute to the prosecution, as if to satisfy his own conscience.

η ,ὡ ῦ τ ςτηλικα α δ ια ίκ Ἐ λ ῦ π ιν ,ὦ ρ α αΓρ ς τ ν σ α ειδιά ὲμ τ ν δ ὸ ι, 'γ α ν ά ςεἶ,' ϕ ῦ α ᾳ ῷ ό μ Κ τ ω γ ν ί ε α ν τ ι έ ν σ θ ο α ι μ τ α ρ τ α ῃ γ π ρ κ ε τ ά γ δ ί ῇ ιπ α θ εσ ρ ά τ ν τ ἔ ν π λ ὴ π ' ϕ ο μ σ ιο εν ύ ρ ο ί·α ν ό ν γ . ρἀ ν ο ,ὥ ο ν α ἅ ιμ σ π π ε α ρ κ ξἀναστῆ ὸ α κ ὴ ν τη ὶπ α ςτ 'ν

Wemaywell bemistrustful of therumours circulated inthelate fifth century

about

Perikles’ behaviour on this particular occasion; but the passage is nonetheless an illustration of a tactic that appears to have been well known. There are several instances where citizens areaccused of having resorted tothis strategy, except thatthe favours that they had allegedly received consisted not in offers of sex but of cash. 695, where twomembers The practice is alluded to in Aristophanes’ Wasps 691– (synêgoroi) of a team of prosecutors have been persuaded by bribes to collude in ruining theprosecution’s case, ‘andthenoneof thempulls while theother gives in, κ ε).40 εν έδ ω τ ν ᾽ἀ ὲ ν κ ε ι, ὁδ ᾽ὁμ ἕλ ίο ρ ν θ ᾽ὡ ἆ θ ςπ as if they were sawing’(κ Some of themanyallegations madebylitigants thattheir opponents have ‘sold’ public actions may allude to this strategy; indeed in some instances it is entirely clear that the ‘sold’cases in question hadin fact been heard by the courts. If we return to Hansen’s list of abandoned public actions, some of these cases definitely concern ‘saboteurs’rather than defaulting grapsamenoi. According to Aischines (1.114) Timarchos hadreceived a bribe of twenty mnai ) the graphê xenias against Philotades, and yet it is stated ρ ο ὔ κ ε δ ω to ‘betray’ (π η τ ά α τ κ ισ ῇ π ςτ explicitly that Timokrates hadtaken charge of thecase in court (ἐ

40 The similarity sage.

α μ ι(buy) maybe intended ία ρ (saw) andπ ίω ρ between the verbs π

in this pas-

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γ ρ ο ίᾳ ἐ π ὶτ ο ῦ δ ικ ρ α η σ ίο τ ).41Demosthenes’‘sale’(ἀ υ π έδ ο τ ) ofhisprobolê against ο Meidias inreturn for3000 drachmai (Aisch. 3.52) maymeanonlythatDemosthenes hadagreed tobelenient inhispenalty assessment inreturn forabribe. Or,according to the more polite reconstruction of Erbse (1979b: 428– 429), Demosthenes may haveagreed toreceive a compensation of3000 drachmai fromMeidias andrefrained from proposing the death penalty or a fine so great that Meidias would remain a

perpetual debtor to thestate.42 The hypothesis to Dem. 25 claims that Aristogeiton had‘sold’(ἀ π ο δ μ ό εν ο )a ς graphê against Hegemon; butinthis case thestrategy backfired, because Aristogeitonoverdid hissabotage, failed togarner therequired 20%of thevotes, andincurred the statutory penalty as a result.43 Finally, Demosthenes mayhave bribed Nikodemos who had brought a graphê lipotaxiou to be lenient in his prosecution (Aisch.

2.148).44

Theadvantages tobothprosecutor anddefendant ofthis strategy areclear. If the of the action andthedefendant agreed that theformer should proceed with thecase butplead itbadly, hograpsamenos would escape thestatutory penalties for withdrawing a public action. Thedefendant, forhispart, would have hadhisreputation cleared as a result of his acquittal, andhewould have some guarantee that this particular action could notberelaunched byother prosecutors, since theAthenians didnotpermit thesame case tobetried twice under thesame procedural heading. However, if theperson whohadtaken legal responsibility fortheaction agreed to adopt this strategy, hewould runa risk. Wehave seenhowAristogeiton overdid the demolition job that he applied to his ownaction to the effect that he failed to gain the required number of votes. A grapsamenos whohadstruck upa deal with the defendant would also have tostrike a fine balance between hisdeliberate attempt to shoot himself inthefoot andtherequirement that heproduce arguments sufficiently effective for hisprosecution toappear convincing to atleast a fifth part of thedicastic panel. initiator

41 This point was made also by Lipsius (1905–15: 844 n.56). 42 Neither reconstruction is incompatible withtheproposition thatDem.21 wasdelivered moreor less as it stands. A gooddealof negotiation between prosecution anddefence could take place 84, 47.43, [53].18, [59].6). Although such a during the timêsis procedure (e.g. Dem. 25.83– compromise on the part of even the sternest prosecutor mayhave been perceived as entirely honourable atthetime (particularly intheimmediate, highly emotionally charged context of the timêsis procedure), it would still leave the prosecutor open to the accusation later that he had compromised his principles in return for money. Dem. 21.176 maysuggest an example of a prosecutor compromising inaprobolê. Inthis case, hoprobalomenos seems tohave accepted a verdict that effectively annulled the verdict in a maritime suit that he hadlost to thedefendant, ή σ α τ ) correε ρ ο σ ετ ιμ Euandros, ona previous occasion. Inaddition, thecourt assessed a fine (π sponding to the size of the damages (presumably to his business transactions) that either Euandros himself or his opponent Menippos hadclaimed to have sustained by staying in Athens until the case washeard. pace E.M. Harris (1992: 73) I do not believe that the case against Euandros took theformof a dikê: thecourt hadtheoption of imposing thedeath penalty, which would have beenpossible only ina public action. Fora similar compromise inaneisangelia to theboulê, see Dem.47.43. 43 For therejection of Taylor’s emendation of thetext, seeChapter 3: 2c. α ϕ σ ι ιδ ν α νχρήμ ῖο ρ α μ ψ γ εν ά νἈ μ ντ ο ν ο ὸ νΝ ὸ η ικ ὶτ ό α δ η ,κ ςλ υ ιπ τ ο α ϕ ίο ξ 44 Aisch. 2.148: ἐγρά π είσ α ςἐσώ ... η ς θ

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Thefine imposed onvery unsuccessful prosecutors is arguably best understood in the context of this strategy. Onthe face of it, twoclauses within the lawparaphrased in [Dem.] 58.6 appear to serve twovery different purposes. While thelaw prescribed penalties for withdrawing public actions (a means of ensuring that as many public actions as possible would reach the courts, once they hadbeen initiated), it also laiddownpenalties imposed ontheperson responsible fora prosecution that didnotreceive therequired number of votes (a deterrent against bringing public actions). Modern scholars have reconciled the twoclauses by interpreting the20% rule as a kind of entrapment clause (e.g. MacDowell [1978: 64], Hansen [1991: 195]), designed todeter prosecutors frombringing groundless actions. According to this reconstruction a citizen whothreatened another witha trumped-up charge would have found himself in a difficult situation, if his victim called his bluff andforced himto take thecase tocourt. Thelawin its entirety hasbeen regarded as a wayin which the Athenians attempted to protect individual members of the community against vexatious litigation. It is highly likely that the law may in effect have worked as a deterrent against the bringing of frivolous prosecutions. AnAthenian could undoubtedly claim that this wasthe ‘intent of thelawgiver’if such anargument suited thecase that hewas pleading. Even so, themodern emphasis ontheclause as a kindof victim protection against ‘sykophants’maywell spring from the fact that scholars have been taken in, willy-nilly, bythecomplaints about sykophants voiced in texts written bytheélite for theélite. Asmentioned above, the modern insistence on using the word ‘blackmail’about threats toparticipate ina prosecution unless thedefendant paidupalso reflects the tendency to see the whole issue from the point of view of the ‘victim’ rather than from the point of view of the Athenian polis. Arguably, the lawin its entirety makes sense if both its clauses are interpreted together as a measure by which theAthenians sought toensure that public actions would reach thecourts and that the cases would be pleaded properly. If we look at the law from the point of view of thepolis, and if we assume that the lawin its entirety served the primary (but not necessarily the sole) purpose of ensuring asfaraspossible that (wealthy) criminals would notbeable tobuyofftheir prosecutors, thenthesecond clause ofthelawmakes equally goodsense, if it is read in thecontext of the sabotage strategy outlined above. Indeed, the paraphrase and interpretation of thelawoffered bythespeaker in [Dem.] 58.6 shows that thecomϕ α ν ), τ ῇ υ κ ο bined effect of the lawas a deterrent against ‘acting as a sykophant’(σ ( κ ϕ ῇ α ι θ υ ‘hiring oneself out’(ἐ ), and‘embezzling thematters of thepolis’ ῇ β γ ο λ ρ α ῆ ὰ τ ) probably would have been recognized by the audience. τ λ εω ςπ ό ς While the law would have provided some deterrence against sabotage if the person approached by thedefendant happened to be theprosecutor responsible for the action, it would have a more limited effect whenseveral prosecutors acted as a team. If the team as a whole was bribed into agreeing to adopt the strategy referred 695 andto play a game that is, mutatis mutandis, to in Aristophanes’ Wasps 691– somewhat similar to the good cop–badcop tactic adopted by modern police forces ininterrogations, theteammight succeed inachieving therequired number of votes while at the same time ensuring the acquittal of the defendant. The price would

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probably be high, but some people undoubtedly would have been both willing and able to payit. Moreover, as noted intheconclusion of theprevious section, onebad apple might ruin the entire barrel, so even if only onesynkatêgoros wasbribed he might still succeed in sabotaging the case of the prosecution as a whole (cf. the anecdote relating to Perikles, above). Thus, inthatrespect thepractice of team-based prosecution wasa double-edged sword. Theadvantages of peer pressure within theteam, thehigher price of bribing anentire team into leniency, andthechance that some of themembers of theteam would be immune to thedefendant’s offers of bribes (for example because of deepseated mutual enmity) would have beenoffset toa certain extent bytherisk thatone ‘saboteur’onthe team might cause theentire prosecution to collapse.

Thediscussion of the ‘straw man’, the ‘deserter’, andthe ‘saboteur’hasdemonstratedthat there would be ways in which Athenians could make money from participating in public actions other than just apographai, phaseis, and graphai xenias. Does that mean that we shall have to bring the ‘professional sykophant’ back into the debate? I doubt it. It is notplausible that a citizen could get away with being a ‘straw man’, a ‘deserter’, ora ‘saboteur’ona regular basis without being exposed as such. The tirade against Aristogeiton (who wasquite likely as respectable as any other citizen with a high political profile) suggests that the Athenians would be quick to apply the label ‘traitor’(π ρ η ) as well as ‘sykophant’to a person who ο δ ς ό τ hadengaged inactivities thatcould inanywaybeconstrued as ‘sabotage’or‘deser48). tion’(Dem. 25.46– Onthe other hand, the fact that money could be made fromengaging (and not engaging) in public actions adds some substance to the worries about sykophants from a democratic point of view. In public actions, that money would be of the worst sort conceivable: in thecase of the ‘straw man’misthos, which would make him akin to a prostitute (in that respect Neaira the prostitute andStephanos who signed his name to other people’s political activities ([Dem.] 59.43) made a nice couple), while themoney taken fromdefendants inpublic actions by‘deserters’and ‘saboteurs’ would have amounted to catapolitical bribery, to adopt Harvey’s term (1985). When we consider how the abusive term ‘sykophant’ is used in speeches addressed to the democratic courts, the word normally does carry a connotation of legal harassment and general dishonesty, which is intended to cast doubt on the character andintegrity of the speaker’s opponent. Butwith thewordthere is often also a clear indication of anunderlying financial motive.45 In public actions, the accusation used by defendants that their prosecutors are known to prosecute the innocent while letting theguilty goarguably serves thepri232; 39, [20].7; Aisch. 1.20, 2.99, 3.231– 21, 38– 45 e.g. Ant. 5.80; Isaios 11.31, Lys. [6].31, 7.20– 105; Dem. 18.138, 19.222, 21.103, [59].39; Hyp. 2.2. That a defendant in 101, 104– And. 1.99–

a private action would find it easy to claim that his opponent was ‘sykophanting him’out of greed inorder togain financially atthedefendant’s expense goes without saying. Therepresentation of the sykophant in Aristophanes’comedies is also invariably connected with the finan-

67]). cial motif (see thediscussion inChrist [1998: 59–

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marypurpose ofcasting doubt ontheintegrity of theprosecutors andtheir case: they will doanything for money, prosecute anybody as long as they maygain from it, and let anybody (i.e. the guilty) go if a bribe is offered.46 This type of language comes close to thewayin which a litigant might attack theintegrity andcivic status of a woman by claiming that she would be available to anybody whowished to buy herservices,47 andit is also a type of abuse that is regularly associated withtreason. To conclude: weshould notsee the democratic concern over sykophantic behaviour primarily as a wayof negotiating the political tension between rich and poor, in the sense that the Athenian dêmos would be willing to lend a sympathetic ear to élite dissatisfaction with democratic justice as long as this was expressed though dissatisfaction withtheimaginary figure of thesykophant’. True, massand élite seem to have agreed in labelling the sykophant‘ ‘bad’; butmass andélite may very likely have haddifferent reasons for resenting practices of the kind that would normally be labelled sykophantic’. The idea that there were people who lived exclusively bythat trade‘is very likely rhetorical andcomic exaggeration; nevertheless the activities associated with ‘the sykophant’, i.e. frequent litigation for the wrong (financial) motives, were a real threat, notonly to wealthy, self-declared Athenian quietists, butalso to the democratic administration of justice as a whole andto its ideological foundations. It is quite clear from the law-court speeches that litigants whoclaimed that they were innocent victims of sykophantic behaviour might expect to command some sympathy fromthedikastai. Butthen, theAthenians donot seem to have been any keener on convicting innocent people than they were on acquitting the guilty.

3. Transferable charis When beginning his defence speech on behalf of Ktesiphon, Demosthenes claims that Aischines as a prosecutor hashadaneasier task than theoneDemosthenes is about totake on,notonly because Aischines hadless atstake personally whenconducting the trial; butalso because the Athenians do not like to listen to people prais4): ingthemselves (18.3–

Asecond advantage for himis that human beings are bynature fond of listening to abuse andaccusations while they loathe those whoare praising themselves. Of these two tasks the one that provides pleasure has been given to him, while the other which annoys everybody, so to speak, is left for me. ν α ῶ νκ ὶτ ιῶ ρ ο ιδ νλ ο ὲ ῶ νμ ι, τ ε χ ρ ιςὑπ ά ο π ρ ώ ύ σ ινἀνθ ᾶ σ ιπ ε , ὃϕ ᾽ νδ ο ερ ἕτ ίο τ τ ω ν ι·τού θ α θ εσ χ ὺ τ ο ὑ ςἄ ᾽α ιδ ῦ σ ο ἡ ιν δ α έω ρ ιῶ ο ,τ γ ς ῖςἐπ ν κ ο ἀ ο ύ ε ιν κ α τη ῖνἐν ε ο ςεἰπ ςἔπ ινὡ ῳ σ δ ᾶ έδ ὲπ ι, ὃδ ο τ α τ , το ύ ή ν ρ ὸ ςἡδον νἐσ έ ιπ τ νὃμ ν υ ί. ο ν ἐμ ὸ ῖ, λοιπ ε λ χ ο 26; Dem. [57].60. This type of abuse is also found in some prosecu46 e.g. Lys. [20].7, 25.3, 25– 29. 40, [58].28– tion speeches, e.g. Aisch. 1.107; Dem. 25.39– 47 e.g. Isaios 3.13.

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Thevalidity ofDemosthenes’claim isdebatable, forlitigants inprivate actions would hardly refer to their ownexcellence with such frequency andat such length if they knew that their audiences would normally resent that sort of argument.48 On the other hand, Demosthenes’remark doesseemtoreflect court practice inoneparticularrespect: elaborate andsystematic self-praise isa topos attested farmorefrequently in defence speeches than in speeches delivered byprosecutors inpublic actions. Unlike mostof theattested prosecutors referred to above, defendants refer regularly to their ownservices to thecommunity andto the achievements of their ancestors.49 Moreover, such arguments tend to occur towards theendof thedefencespeeches, which indicates that they served a purpose that went far beyond captatio benevolentiae. Toa certain extent thetopos serves toestablish thedefendant’s trustworthiness as against the credibility of his opponents, andit is often linked with attacks on the prosecutors. Indeed, some defendants invite comparison between themselves andtheir opponents, coupled with theclaim that their owngood deeds (ἔ ρ γ α ) should serve as more reliable evidence than the words (λ γ ό ο ι) of the prosecutors whoare themselves untrustworthy characters.50 More than one defendant claims that his ownachievements testify to his upright character (Hyp. 2.18) and ρ ια ) that hecannot possibly have committed the ή should serve as evidence (τ μ εκ crime of which hestands accused.51 But there is far more to the topos than that. It is frequently coupled with an explicit demand for charis, reminding the audience that as representatives of the entire polis they owea debt of gratitude to the defendant andhis family, andthat nowwould be anappropriate moment to repay it,52 preferably in the form of compassion (ἔ ).53Asnoted bySaunders (1991a: 114), charis η μ λ γ εο ν ώ γ υ ς ) orleniency (σ could beclaimed inreturn fora law-abiding life anda demonstration of a consistently democratic andpatriotic attitude (e.g. Aisch. 2.180–182). The use of the topos thus was not restricted only to those whocould afford to spend lavishly on behalf of thecommunity. 118) hasdiscussed bothaspects of thecharacter-related Saunders (1991a: 113– defence topoi indetail. Heargues that ‘[t]he justification of punishment, orexemp48 See n. 143 inChapter 4. Fortheclaim that bragging is unpleasant to listen to even whenit is justified, see also Aisch. 3.241.

25, P.Ryl. 489 cols. 2– 4; 19, 21– 64, 21.1–12, 15– 27, 19.29, 55– 78; Lys. 18.1– 7, 21– 49 Ant. 5.77– 95) recognized the argu149; Aisch. 2.180–182; Hyp. 2.16–18. Davies (1981: 92– And. 1.141– mentas primarily a defence topos inpublic litigation. 50 This observation makes it evenmoreremarkable that mostattested prosecutors donotrespond in kind: while they areclearly concerned withrefuting direct attacks ontheir integrity, mostof them refrain from proving their trustworthiness through a recitation of their liturgies andother services, as pointed outin Section 2. 51 See e.g. Lys. 19.56, 61 and21.22 fora similar line of argument. 27, 21.17, 25, 25.11, P.Ryl. 489 col. 3; Aisch. 2.171. The plea 52 And. 1.140–147; Lys. 18.23, 26– 36 maybe counted as well. for charis andeleos voiced by Polystratos’ son in Lys. [20].30– Although thesonis technically speaking acting as hisfather’s synêgoros, descendants occupied anintermediate position between being a real party tothecase andbeing supporters, especially insuchcases where a conviction might result inhereditary atimia, asnoted inCh.4: 3. 36, 21.15, Aisch. 2.182 53 And. 1.141, Lys. [20].35–

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tion from it, on the basis of the competing claims of strict justice, compensatory justice, andpublic interest led to a state of continuous tension in Athenian legal proceedings. The arguments andtheir context areinvariably parti pris andtendentious; nevertheless Athenian juries were constantly faced with weighing theclaims ofjustice andexpediency –though it isofcourse doubtful if theaverage juror would havebeenable toarticulate precisely why,andhowstrongly, hepreferred oneclaim to the other...’ There can be no doubt that the debt of charis owed to the defendant wasexpected to influence the verdict. This is clear not least from the prosecution speeches, where the prosecutors anticipate precisely that demand advanced by their opponents. What is perhaps more interesting, andwhatcalls for a modification of Saunders’argument, is that mostprosecutors seemto accept thegeneral validity of arguments relating to charis while normally voicing their objections to the defendant’s requests in very specific terms, arguing that thejudges should not feel obliged to this particular person, because they owehimnocharis at all.54 In oneparticular instance, Demosthenes (19.91) acknowledges openly that the defendant should benefit from whatever charis is owed to him, butof course only in so far as it is deserved. Only a fewprosecutors deny flatly that charis should be allowed to influence the verdict; buteven these passages donotcontain downright rejections of the importance of charis as a general principle. Rather, these prosecutors remind thejudges that they mustnever give more priority to charis than to the laws andtheir dicastic oath.55 Thus, the extant speeches suggest that even hostile prosecutors tend to accept the validity of the charis argument in principle, andtheir preferred tactic seems to be a point-by-point demonstration that the community has no outstanding debt to this particular defendant. Thereluctance onthepart of eventhefiercest prosecutors to advocate a blanket dismissal of all claims to charis as a matter of legal principle suggests that the ideological tension generated by a perceived conflict between

j ustice’and expediency’wasnotin fact as pronounced as Saunders suggests. ‘ ‘ The demands routinely made by prosecutors for the harshest penalty possible areoften supported byarguments relating toexpediency, namely thebeneficial deterrent effect that such a verdict would have.56 This is noted by Saunders himself (1991a: 117) with reference to theargumentation in Lyk. 1 Against Leokrates. The ideological battle is thus not so much over a principle of ‘blind’justice (as might be advocated byprosecutors) versus expediency (asmight beadvocated bya defendant whoattempts topersuade thejudges that hiscommunity needs him); butrather over general versus specific obligations andconcerns. Thejudges areconfronted with a dilemma: they will have tochoose between honouring oneoutof twoincompatible sets of obligations, i.e. either satisfying the (legitimate) claims to charis that an 239, 282, 21.148– 54 e.g. Lys. [6].3, 7, 36, 53, 12.80, 14.23, 15.10, 27.11, 30.16, 27; Dem. 19.237– 21; Lyk. 1.147–148; Hyp. 4.7–10. 80; Dein. 2.8–15, 3.17– 174, 25.76– 40; Dem. 19.1, 21.225, 24.134–137; Aisch. 3.233, 255; Dein. 1.14–17, 27. In Dem. 55 Lys. 14.39– 21.143 it is claimed that the crime of hybris is so particularly heinous that in such cases, charis should notinfluence theverdict inanyway,cf. Dem. 21.183. 56 See the passages collected in Ch.4 n. 120. For a fuller discussion see also Rubinstein (1995).

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individual might have on hispolis, or paying heed to the community’s demand for a penalty to deter potential future offenders while atthesame time providing retribution forthewrongs suffered bythecommunity asa result of thedefendant’s actions. The demands of an individual for charis from his community in return for past services have been recognized by modern observers as central to Athenian ideology, and we should not assume that such claims would be dismissed lightly by the judges.57 For that reason it is understandable that prosecutors would be wary of dismissing the defendant’s claims as a matter of legal principle. It might seem a safer strategy todispute thevalidity of hisdemand byarguing either thatthedefendant has never actually done the community any services that would justify a public expression of charis,58 orthat whatever debtthecommunity hasowedthedefendant has long since been paid back in full.59 Note in this connection Andokides’remark in his defence speech (1.147) that none of his ancestors have as yet claimed the charis duetotheminreturn fortheir benefactions. This addstotheimpression that charis wasa currency which could be hoarded andspent at the discretion of the ‘creditor’, whenever heor his descendants needed it. It also suggests that charis in return for specific benefactions wasperceived as finite, strictly commensurate with the good deeds themselves, and that the currency could be spent only once.60 Thethird option fora prosecutor is toplace thedefendant’s goodandevil deeds in a metaphorical pair of scales, accompanied by anassertion that the crimes and malicious disposition of thedefendant (and in some cases of hisancestors, too) will inevitably outweigh any good deeds he might count to his merit.61 In general, the speeches suggest that thejudges were not asked to decide whohadthe better claim to their charis, the prosecutor(s) or the defendant. It is rare to find a prosecutor demanding theconviction of thedefendant as a favour to himself, supported byhis owndemand forcharis inreturn forhisservices tothecommunity. (The exceptions

are Dem. 21, [53] and [58]). Such attempts to balance the defendant’s personal account of merit is not all that different fromthewayinwhich thepenalty is assessed insome modern administrations of criminal justice (see n. 21 above), for, in general, both Athenian prosecutors anddefendants seemto agree that thejudges should take theentire life and personality of thedefendant into account whenpassing their verdict –forbetter (as a defendant might argue) or forworse (according to theprosecutors). 57 Fortheimportance of thereciprocal relationship between theindividual andhiscommunity, see above all Whitehead (1983). 80; Hyp. 4.10–11. 49, 14.24, 15.10; Dem. 25.76– 58 e.g. Lys. [6].46– 59 e.g. [Lys.] 6.36 andDem. 21.171. Lys. 14.31 contains a similar kind of reasoning. 60 Ontheparallels between thelanguage of charis inforensic rhetoric andthelanguage of lending 125). andborrowing in practice, see Millett (1991: 124– 18.Thelatter twospeak39, 30.16; Dem. 19.91, 282, [59].116–117; Dein. 1.14– 61 e.g. Lys. 12.38– ersargue afortiori that thecrimes of which previous named defendants wereaccused wereseen as such terrible offences that even thegratitude owedto them wasnotsufficient to warrant an acquittal. Thepresent defendant, whose crime is far worse, does notevenhave ajustified claim to charis, andthus deserves nothing short of the harshest possible penalty. The metaphor of 60, butseeDemosthenes’objections toitin 18.227– ‘balancing thebooks’is usedinAisch. 3.59– 231.

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The scope for adjusting the penalty to fit the criminal was obviously non-existent if a verdict of guilty was passed in an agôn atimêtos, in which the penalty would be fixed by the statute forming the basis of the legal action, andin which the court’s decision-making power was restricted to the question of guilt. In such cases the judges would have todecide whether thedefendant’s demand forcharis would outweigh the accusations made by his opponents andso warrant an acquittal –either because the prosecutors were held to be untrustworthy or because the defendant’s books were deemed to be balanced in his favour.62 What is important to note is that the individual personality of the prosecutor(s) does not seem to have been recognized explicitly as the yardstick with which the defendant’s worth could be measured in relative terms. The similarities between the Athenian andcertain modern attempts to make the penalty fit thecriminal aswell asthecrime maybeonly superficial, however. There are marked differences in the ideological concerns which give rise to the desire for

flexibility in the imposition of sanctions for criminal offences andits manifestation in penal policies in different cultures. Again, the pronounced differences between existing modern legal systems warn against a simple contrast between ‘the Athenians’and‘usmodern westerners’. Evenwithin a single legal system thepractice of imposing flexible penalties (as opposed to a simple tariff system or talionic or mirroring punishment)63 is often justified by markedly different ideological concerns, in many instances determined by the observer’s or interpreter’s ownpolitical orientation. Recently, the flexibility in the sanctions imposed by British courts has provided a veritable political battleground, andinthis particular modern debate theunderlying assumption is often that the flexibility itself has its origins in a ‘soft’ attitude to crime and a (misguided) desire to compensate forthesocial injustice suffered bythedefendant byadopting a more lenient attitude towards his criminal acts. Although this debate is often conducted in rather superficial terms, the wayin which this issue is presented to the public through the media is instructive, in so far as it points to a very explicit connection currently made between flexible penal practices andprevailing political attitudes andconflicts. But there are numerous other ways in which such flexibility may be justified andexplained. The Danish penal code of 1866 (which is nowwidely perceived as Draconian) states a desire forequality intheimpact of penalties imposed onindividual convicts as a justification for flexible penalty assessment (§71b). Thus the assessment of fines should be informed bythedefendant’s personal financial circum-

62 A similar situation gave rise to a reform of the Danish jury system in 1936 when thejury was given a say in thedecision onpenalty in addition to thequestion of guilt. Thereform wasmade indirect response to a number of allegedly wrong acquittals (many of them inactions for infanticide), which were interpreted as indications of the fear felt by thejuries that the penalties decided bytheprofessional judges would betooharsh. ForanAthenian parallel to this concern, anticipated by a prosecutor, see Lys. 15.9 andcompare also Dein. 1.57 in which the speaker claims that such concerns actually occasioned acquittals of people whowere obviously guilty. 87). 63 Ontalionic andmirroring punishment, see Saunders (1991a: 77–

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stances as well as bythe nature andgravity of hisoffence, andthis particular policy is still applied incertain areas of Danish criminal justice today.64 The desire for flexibility may also bejustified by a wish to facilitate reform and later resocialization of theconvicted criminal. Inthe 1866 code (§71c) this principle justified a particularly harsh approach to beggars andvagrants whowere regarded as professional criminals incapable of reform. Today, a similar concern mayyield entirely different penal results. It is notinconceivable that particular penal practices within a single legal system mayhave their roots ina variety of different considerations (some of which arefundamentally incompatible), andthattheemphasis onone particular set of considerations orjustifications maydepend in part on the cultural andpolitical background of theindividual observer (or legal practitioner) as well as onthecurrent ideological moodprevailing in thesociety in which thelegal system operates. Thetensions within Athenian legal ideology, especially inregard to penal practices, have long been recognized bymodern scholars, andit is outside the scope of the present work to enter into that debate.65 Here it must suffice to conclude that those passages in which litigants argue that the response of the court should be based inpart onanassessment of thecharacter of thedefendant tendtorelate tothe concept of reciprocal justice, to adopt oneof Saunders’classifications (1991a: 114– 115). Whatever the historical roots of that concept may have been, thejustifications for reciprocity as advanced by fourth-century litigants seem to correspond quite well toa setof fundamental values thatunderpinned contemporary democratic ideology, and they find a clear parallel in the honorific decrees passed by the Athenian assembly, andindeed byother organizations aswell. InLys. 18.23, forexample, the defendant asks thejudges for anacquittal in recognition of the favours done to the community byhimself andhis family. By doing so, thejudges will demonstrate to all those who wish to do thepolis a good turn that they will be heard byjudges of a fair andgenerous disposition.66 This line of argument bears a marked resemblance [16], for to a common formula used inAthenian honorific decrees. IG II2222.[11]– example, proclaims that the citizenship bestowed onPeisitheides should serve as a demonstration to all that the Athenians know howto repay their debt of charis.67 Other potential benefactors will receive a demonstration of the willingness of the

64 See thecurrent Danish penal code §51. 65 The ideological tensions are outlined in Saunders (1991a: 96–122). The debate itself has been characterized bya markedly evolutionary approach andcorresponding attempts toresolve some of the internal conflicts bymeans of chronology; see e.g. Paoli (1930), Latte (1968), Ruschenbusch (1965), (1968a), (1989b).

μ ᾶ ρ ω ιιδ ςἀπ ὴπ ς ε ῖνἡ ό ερ ρ ,μ ιν μ ᾶ νχά ο ενὑμ α ιτ ὴ π ῦ ᾽ἁπ νἀ ςτ ω ν τ ά νἀ θ ν η 66 ν τ ῦ νταύ ντοίν υ ν ν ν ία ο γ εὐ ν ό ω δ α ιμ η ρ δ ὲτ ο ν τ ν π ὴ ῶ μ γ ο έν υ εν ο ν ,μ ς είω δ η ιτ δ ν ἐπ ᾽εν ε εῖςτ ῶ δ η ο τ ςμ δ έν ια τ εθ , ε ιν ὖ λ π ο π ό ιε ν μ ῖν ο ιςτ έν ὴ σ ο μ λ α υ ο ιτ α ο ῖςβ π ο ιῆ δ ειγ ά ρ α π ν λ ο λ ᾶ κ ο λ ὺμ α π τ α λ ὰ λ λ ῦ ι, ἀ σ α ι. α ιςτεύξοντ ο τ ο ῖςκινδύν ν ν μ ῶ ἐ ο ἵω ν ὑ 64 withn.27) fora discussion andforreferences tosimilar clauses in 67 SeeWhitehead (1983: 62– numerous other decrees. While the individual qualities explicitly rewarded by the Athenians changed over time, as demonstrated by Whitehead (1993) and, more recently, by Veligianni306), the underlying principle of reciprocity remained a constant 227, 247– Terzi (1997: 192– throughout

theclassical period.

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Athenian dêmos to recognize their benefactors, and they will thus be spurred into action. Likewise, whenprosecutors askthecourt to ignore thedefendant’s demand for charis, either because it is groundless orbecause thedebt hasalready been repaid, this is frequently coupled with the argument that displays of undeserved charis in theform of anacquittal or a lenient sentence will have a corrupting effect onother members of the community. By contrast, the creation of a negative paradeigma through the imposition of a penalty suitable to the defendant’s evil disposition and past malefactions may, according totheprosecutors, work ‘pourdécourager les autres’, that is, as anhonorific decree in reverse.68 It is possible to conclude that a verdict passed in a public action could be interpreted partly as a measurement of thedefendant’s standing andpast record, just as anhonorific decree could be interpreted as a measure of thestanding of thehonorand. Inpublic legal actions, it would seemthat themeasurement of thedefendant’s timê wasnotrelative tothepersonal record of hisprosecutor(s), but, rather, relative to theaccusations levelled against him. However, this conclusion should notbepressed toohard; forit would seemthat it waspossible for several other persons to pool their timê andtheir personal claims to charis to work in the defendant’s favour by acting as his synêgoroi. Andif a defendant wasbacked byindividuals witha conspicuously highpolitical andsocial standing, anacquittal could beinterpreted asa reflection of their prestige aswell as that of the defendant himself. In other words, charis seems to have worked as a currency that could betransferred to others aswell ashoarded.69 Asnoted inChapter 4: 3, prosecutors frequently objected totransferable charis, as evidenced by the hostile topos no. 3, discussed on pp. 166–167 above. This topos deplores the use of synêgoroi who attempt to override the demand for justice by bringing their owninfluence to bear onthejudges’decision. Most of the prosecution topoi in which thespeakers argue that demands for gratitude are incompatible withthedemand forjustice aredirected notagainst thecharis-arguments voiced by thedefendant butthose advanced byhissupporters.70 Demosthenes objects (19.296) to the practice on the grounds that only the defendant’s owndeeds should enter into theequation:

I say, let noonebe acquitted or convicted because it is the wish of thisperson or that; but let the manwhose deeds save or destroy himobtain the appropriate verdict fromyou. For this is the democratic way. ήμ μ α ι, η τ ο ο ύ λ ισω ἢὁδε αβ ῖν α ῖν νὁδε η δ , ἐὰ η ζ είς ᾽ἀπ δ έσ μ μ θ ο ω λ λ ύ θ ω σ η η κ ς ρ ῆ ο ο τ ύ σ σ ῳ ςπ τ ύ , το ν ίο τ ν α ὶτοὐνα ῴ ῃκ ζ μ έ ν α σ γ ρ α ᾽ὃ νἂ λ π επ λ ντ ὰ ἀ ο τ ικ .71 ό ν ρἐσ ινδημ τ ά ογ τ ῦ . το ν χ ειν γ ά μ ϕ ρ χ ῶ ν ὑ ᾽ὑ έ τυ π τ ω ο α υπ ρ α ή ψ 68 See Ch. 4 n. 120 for this topos. 3 in which the speaker detracts 69 The validity of this claim is questioned explicitly in Hyp. 4.2– fromDemokrates’timêbyasserting that hehasobtained it through hisancestors, cf. Isaios 5.47. 211; Lyk. 297, 301, 21.205, 208– 2, 296– 23, 15.11, 27.13, 30.33; Dem. 19.1– 70 Lys. 12.86, 14.21– 140; Aisch. 3.196, 241– 242. 1.139– 71 Inthefollowing paragraph Demosthenes claims thatnooneamong Euboulos’equally powerful

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Demosthenes’claim thatthepractice ofallowing intervention bypowerful synêgoroi is deeply undemocratic is madebyother prosecutors too, beit inexplicit terms orby labelling such defence synêgoroi as aristocrats or wealthy men(κ α λ ο ὶκἀγα θ ο ίor ι). It is implied that these are people whose wealth andreputation make ο ιο ύ σ λ π themarrogant enough to askthejudges todisregard completely thecriminal record of thedefendant as a favour to themselves.72 In his speech against Ktesiphon, Aischines is less categorical. While it amounts toa subversion of theentire legal system if synêgoroi bring their personal influence tobearonthejudges’decision onthequestion ofguilt, it isacceptable forprominent citizens to intercede onbehalf of thedefendant inthetimêsis section (3.198): Themanwhoasksfor your vote during the hearing onpenalty is asking youto suspend your anger. But the manwhoasksfor your vote in thefirst part of the trial is asking you to surrender your oath, the law, the democracy: demands which it is impious for anyonetomake, andimpious for anyoneto concede to another. So ask them to leave youto cast youfirst vote in accordance with the laws andtoface youduring thehearing onpenalty.

ϕ ο να ἰτ ὴ ή ε ν τ ὴ σ νὑμ ῖ, τ ε ιτ ὴ νψῆ νο ετ ὲ γ ὖ ν ὴ ιςμ ν ντ ρ έρ ἐ ῇτιμ α τ ὀ σ ν ὅ π ρ α ϕ ο ῳ τ να ὴ νψῆ ῳ γ λ ἰτ ό ε ρ ῖ, ὅρ ῷ ώ εῖτ κ α ι. ὅσ ιτ π τ α ο να τ ιςδ ᾽ἐ ντ ἰτ ε ῖ, νόμ ο ν ρ ο κ α τ ία ν α ῖ, δημ ε α ἰτ ἰτ ῖ, ὧ ε ν σ ο ὔ τ α ιοὐ εαἰτῆ δ ν ὲ ί, ο ᾽αἰτηθ ὅ δ ν ε ὔ σ ὐ τ ν ο έν ιο τ α ῳ δ ο ῦ ϕ ν α ι. κελεύσ ο ν ρ μ κ έ α ν α ᾶ ὐ τ η ν ὑ α τ ὖ ο ύ ἑτ εο τ , ἐάσαν ς ςψῆ ὰ τ ώ ρ τ α ν ὴ π τ ς ο τ ο ὺ υ ςνόμ η ςδιεν κ ε , ἀπ σ ιν ν ιν τ ᾶ α ν . έγ ε ἰςτ ὴ ν τ ίμ

Theintervention bypowerful synêgoroi onbehalf of individual defendants gave rise toa great dealof tension onanideological level asevidenced bythehighfrequency of hostile comments on the practice voiced byprosecutors in their speeches. It is

unfortunate thatwehave noexample of a defence synêgoros engaging inthis typeof argumentation relating to transferable charis, except for the son of Polystratos who delivered at least part of [Lys.] 20. It is thus difficult to assess the validity of the prosecutors’representation of thepractice. On the other hand, the intervention by defence synêgoroi who allegedly recite their ownservices tothecommunity inorder tosecure therelease of thedefendant is frequently referred to witha highly suggestive verb, mostoften found inthemiddle voice, ἐξ α ιτ εῖσ θ α ι, literally ‘todemand thehanding overof X (tooneself)’.73This verb is used by defendants as well as prosecutors, interchangeably with the more σ ις(‘begging’), torefer to thesupport given εῖσ θ α ι(‘to beg’) andδέη deferential δ

72

contemporaries andpredecessors hasevermanaged toinfluence theverdicts passed bythecourts. Their real influence is confined to the Assembly, andthejudges should avoid giving in to Euboulos’demands. A very similar passage occurs inDem. 21.207, also addressed to Euboulos. 209; Aisch. 1.69, 3.196–198, cf. Lyk. 1.140. In Dem. 25.78 Lys. 12.86; Dem. 19.296, 21.207– ίrelatives θ ο ὶκἀγα λ ο α there is a variation onthetopos: Aristogeiton is mocked forhaving noκ whomaybegforhisrelease. Forfurther references tosimilar passages, which donotexplicitly condemn thepractice as undemocratic, seeChapter 4 n. 121.

73 Lys. 14.16, 27.12–13, 30.31; Dem. 21.208, 25.78, [59].117; Aisch. 1.173, 3.196; Lyk. 1.20, 135, 139.

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by defence synêgoroi.74 The vocabulary suggests that some defence synêgoroi did indeed ask for their personal claim to thecommunity’s charis to be regarded as a contribution to thedefendant’s ransom. That such attacks on anallegedly undemocratic practice were taken seriously enough to merit refutation by defendants andtheir supporters is clear from Hyp. 2.10 and3.11. In these passages the prosecution topos is countered obliquely with the assertion that thepermission to render rhetorical support to a defendant inneed is in fact ‘most democratic’. Interestingly, these arguments donotserve tojustify the concept of transferable charis. Instead it is claimed that defence synêgoroi may serve to create a level playing field andrestore thebalance between thedefendant andtheprosecutor(s) whoareinvariably ata rhetorical advantage. Both sides of the argument should be taken seriously, andtogether thetwoopposing topoi point to an area of deep conflict within Athenian legal ideology. It is a frequent defence topos that inpublic actions thedice areloaded in favour of the prosecution. The defendants give different reasons for this procedural in-

equality, sometimes combining several of them to support their claim. Sometimes their complaints are substantiated in specific andpersonal terms with reference to the prosecutors’superior skills in speaking,75 or to thelarge numbers participating intheprosecution, whohave ganged uponthedefendant.76 Butmoreoften, defendants assert that theinequality is structural, andthat all defendants will inevitably be at a disadvantage. Prosecutors speak first andmaystir upsuch feelings of anger in the audience that thejudges may refuse to listen to the defence.77 They also control therhetorical agenda, andthedefendant maybeforced tospeak about matters which will nothelp to prove his innocence, butwhich hewill have to take upin order to remove the prejudice against him.78 Furthermore, a person whois beside himself with fear for his life or loss of his epitimia will always find it difficult to defend himself adequately, while the prosecutors can argue from a position of personal safety.79 Finally, the prosecutors have full control over the timing of the trial and can prepare their attack well in advance,80 andthey also control thechoice of procedure.81 Thelast point mayexplain inpart whytheAthenians permitted intervention by powerful people on the side of the defence in public actions. The choice of procedures available to a citizen whowished to bring a case to court hasbeen recognized as a central aspect of Athenian litigation by numerous modern scholars. 24; And. 1.148; ι: Lys. 18.23– α θ εῖσ δ Aisch. 2.149, 179. 2; Hyp. 3.12–13. See also thechorus inAristophanes’Achar7; Lys. 19.2; Aisch. 2.1– 75 Ant. 5.3– 718, whocomplain thatoldmenstand nochance atall whenconfronted withyoung nians 676– andtrendy synêgoroi whohave received a sophisticated rhetorical education. 76 Lys. [20].18 (reference toa previous trial where thedefendant hadbeencaught without supportμ ); Hyp. 2.19, 3.13. ο η ς ers, ἔρ 6; Hyp. 2.9–11. 6; Aisch. 2.1– 77 Lys. 19.4– 2; Aisch. 2.7, 159; Hyp. 2 fr. II. 80; Lys. 9.1– 78 Ant. 5.74– 7; Lys. 19.3; And. 1.6; Aisch. 2.159; Hyp. 2.8. 79 Ant. 5.6– 80 Lys. 19.3; And. 1.6. 3. 32; Hyp. 2.12, 3.2– 81 Ant. 5.8–19; Isaios 11.31–

74 (ἐ )α ιτ εῖσ ι: Lys. [20].15, 19,31, 35, 21.17; And. 1.149. ξ α θ

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365) pointed outthat, in practice, there wasa signifiRuschenbusch (1968b: 362– cant overlap between a range of public andprivate procedures.82 Hansen, whoalso drew attention to this feature in his doctoral thesis on atimia (1973: 230– 231), incorporated it inhisconcluding negative assessment of theadministration ofjustice ‘ on the grounds that the choice of procedure, in the fourth century’ (1973: 229), rather than the nature of the crime committed by the delinquent, would determine the level of the penalty. This observation has been widely accepted by other legal historians, butin more recent discussions scholars have preferred to interpret pro-

cedural flexibility as ‘a primary quality ofAthenian legal procedure’(Osborne 1985: 48), rather than asanundesirable andunintended feature of a fundamentally messy

legal system.

27 is at the heart of this interpretation, andthe passage is held to Dem. 22.25– provide us with an important key to the understanding of howthe Athenian administration ofjustice actually worked. Herethespeaker explains howthelawgiver has provided a number of remedies in order to grant access to the courts to citizens which suited their social andfinancial standing: Howcan this be achieved? If he provides through the laws many remedies against wrongdoers, asfor example inthecase of theft. Youare strong andselfconfident: arrest him. Therisk is a thousand drachmai. Youare too weak: denounce him to the magistrates. They will carry out the arrest. Youare afraid even of this: bring a graphê. Youhave noconfidence inyourself and would not be able to pay a thousand drachmai, because youare poor: bring a private action for theft before an arbitrator, andyouwill runno risk. η κ ό δ ικ ν ἐ π ο ὺ μ ω ὶτ ςἠ ν ό ν ; ἐὰ λ λ τ ῶ ν π ο ὰ ςὁδ ιὰ δ ο ὺ ο ςδ τ ῷ ιτοῦ α τ ν ἔσ ὖ π ῶ ςο ·ἐ νχ γ ε · ἄπ ιλ ῷ ίο α π ισ ᾽ὁ ιςδ τ εις εύ σ α α ικ ὶσα υ τ ῆ . ἔρρω ς ῆ ςκλοπ ντ ἷο τ α ςο σ ο υ ῦ σ ιν τ γ ο π ἐκ ι, ο ο εῖν ο ιή ῦτο η σ ιν ο ῖςἄρχου ο ς ε ἶτ έσ τ εν ερ , ἀσθ ν δ υ ο κ ίν ἐϕ ς ϕ ο β ε ῖκ α ὶτοῦ ο ϕ υ ε . ·καταμ ·γράϕ ισεαυ τ ο έμ η τ ὸ ςὤ ν·κ νο α κἂ ὶπ ὐ έν νἔχ ο ις κ α ν εύ ὴ ὶο σ τ εις ὐκινδυν . ρ ῆ ὸ ςπ ςδιαιτη ο υκλοπ ζ ι·δικά α ία ςἐκτεῖσ χ ιλ

This passage suggests thattheAthenian court system wasindeed a two-tier system, andthat this manifested itself inthechoice of procedures available to litigants who wanted to take on anopponent in court. Because of the risk connected with most public actions, thedikê is construed inthis passage asanoption available to thepoor andthetimid. Thepassage is also oneof therare ones toacknowledge that inequality in social andfinancial resources meant corresponding inequality inaccess tothe courts.

When discussing the so-called opentexture’83of the Athenian legal system, Osborne (1985: 53) has argued that ‘ the choice of procedure would normally be 82

83

Ruschenbusch ascribed this phenomenon tothefailure of Athenian statutes to provide precise definitions of legal substance, another point which hasreceived almost universal recognition among scholars of Athenian law. The overlap between private andpublic actions wasemphasized already by Brewer (1900: 267). Anobjection to the useof theterm opentexture’to describe this feature of the Athenian legal system is voiced byE.M. Harris (1994: ‘ 150n. 16), whopoints outthatthetermisnormally applied inconnection with thesubstantive aspect of law(that is, what Ruschenbusch [1968b: 365] discussed in his section on ‘Gesetzeslücken’) rather than to its procedural aspect. 362–

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‘determined bytherelative andabsolute social positions of prosecutor anddefendant’(my italics). But Osborne’s model works only if weassume that there were

–legal, moral, psychological or otherwise –which would ensure that the procedure chosen would also match the standing of thedefendant. Andit mustbediscussed whether there were indeed anyconstraints onthe freedom of choice available toa prosecutor inthose situations where theprosecutor/ victim happened to have farmoreresources at hisdisposal than thedefendant, both in terms of finance andin terms of his network of potential supporters (obviously, the two are frequently linked). One thing seems relatively certain: there were noformal restrictions on the choice available toa prosecutor whohadtheresources tobring a public action against a weaker fellow citizen –inthose cases where thelaws left scope forsuch a choice. Inthose cases where aparticular grievance could betaken tocourt under a variety of different headings, the prosecutor hadthe whip hand, andhe would presumably decide onthetype of action best suited to his owncapacity andpurposes. If he was wealthy (orif hecould enlist a great number of personal enemies of thedefendant as synkatêgoroi), hewould be free to match hismanandhisaction ashesawfit. Only moral constraint, along with the fear that the judges would react with hostility towards a prosecutor whouseda steamroller tocrack a nut, would ensure that theright type of action wasemployed against theright sort of person. Thus, theprocedural flexibility of theAthenian legal system contained at least the potential for creating anextraordinarily uneven playing field when seen from the point of view of the defendant rather than the prosecutor/victim of the crime. Since all agônes timêtoi would last for an entire court day, a defendant in such a public action would be faced with a daunting rhetorical task regardless of his social standing, unless he hadthe backing of synêgoroi. It is also likely that a full day was allocated to all public trials where thepenalty fixed by lawwasimprisonment, death, exile, atimia, orconfiscation of property.84 It might be objected that the Athenian legal system itself, with its alleged focus oncompetition between citizens whoclaimed to beof thesame social andpolitical standing, would ensure that a prosecutor would never challenge a weaker fellow Athenian in a heavyweight action. The political advantages of having one’s rivals killed by the courts or at least politically crippled by exorbitant fines are obvious.85 certain additional mechanisms

84

85

Ruschenbusch’s mainpoint is thatthelack of substantive definitions occasioned thesignificant procedural overlap (1968b: 363). In order to prevent further misunderstanding I shall usethe term ‘procedural flexibility’whenreferring to this phenomenon. is thelacunose passage inAth. Pol. 67.5. I Ourmainsource for theduration of public actions ̣ ̣ ]α [ρ ἐ π μ ἡ ὶτ μ ]ε ο η ο σ ίο ιρ ις ῖς[δ ῖτ α ιδ ᾽[ἡ ι[α follow Hommel’s reconstruction (1927: 24): δ ̣ ]έ μ [ω ά ευ τ νἢ ]ιμ ἢ ἀ σ τ ιςχρημ ἢδή ὴ γ ία υ τ ν ο α ςἢϕ ά [ὸ ]σ ςἢθ [ν ]ν ὅ ω ρ μ τ γ ο ιςπ ῶ νἀ ό ώ σ εσ ιδεσ τ ιis followed bywhat τ σ εσ ό ρ ιςπ ο ι. Thephrase ὅ]σ α ἢ ἀ ὴ π π ο ῖ[σ α θ ε τ ε ῖν ῆ ρ [ῖ, ὅ ]τ ιχ σ ιδ]ε α τ ιμ is undoubtedly a list of penalties, anditisperhaps best translated ‘towhich isappended’, thatis, referring toagônes atimetoi forwhich thespecific lawthat formed thebasis of thelegal action stipulated a fixed penalty, pace Rhodes (1993: 728). Osborne (1985: 52) argued thattheAthenian courts didnotseektoimpose anyfinal decisions. 24) bases hischaracterization of Athens as a feuding society primarily upon Cohen (1995a: 2– Osborne’s claim. But a considerable number of the decisions made by the courts in public actions were supposed to be very final indeed. It is crucial to distinguish between public and

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Additionally, theperson whohadinitiated theaction would have demonstrated his own power and skills to the community at large, although he would in many cases have hadto share his success with a number of other citizens whohadjoined inthe prosecution. Nosuchadvantages seemobvious, if thecitizen defending himself ina public trial hada low(orno)political profile andwasuniversally acknowledged to bea sitting duck. Thus, it maybeargued thatthere would belittle ornoincentive for a resourceful prosecutor to gofor a weak target.86 Moral constraint mayalso have been effective in preventing prosecutors from using inappropriately heavy procedural artillery. It is indeed possible that prosecutors would have thought at least twice before bringing a public action against a far

weaker fellow-citizen, simply because thecontest would beperceived byeveryone unequal andunfair. It is notinconceivable that theperson responsible for such anaction would risk incurring the hostility of hisaudience andactually lose face rather than improve his standing because of hisperceived undemocratic’be‘ haviour. Thetrouble is that theAthenians didnotrepresent their legal system asprimarily concerned with maintaining or redressing the social balance between its élite members. This is a model imposed onthematerial bymodern historians andsociologists, a model based first andforemost on(highly selective) observations of how litigation seems to have worked in practice. Competition for honour maywell be part of thepicture whenweconsider howthecourts functioned (though it certainly is notthewhole picture). ButtheAthenians themselves didnotformulate this asa general principle inclear terms in their court rhetoric. Furthermore, thestructure of thelegal system asrepresented inDem.22.26 (which isconcerned withequal access to the courts rather than equality in the legal proceedings) must be supplemented andcontrasted with numerous other passages in which it is claimed that the most important issue wasnotthematching of actions to men, buttocrimes. The view that the choice of procedure should reflect the nature of the crime committed is voiced by Hypereides in his defence of Euxenippos in a passage that bears a most remarkable resemblance to Dem. 22.26 in regard to style as well as reasoning.87 Here heclaims that ina democracy it isessential thatcases are brought

as blatantly

86 87

private litigation. While theAthenians mayvery well have regarded private actions asparts of on-going conflicts between individuals, thecourts often meant curtains for thedefendant ina public action. The penalty of hereditary atimia imposed in some cases mayhave worked as a preventative measure against descendants avenging themselves ontheprosecutor(s) asweseeit happening in [Dem.] 58. This also points to an Athenian desire for final solutions in public actions, as does thepolis’virtual monopoly onthe right to implement the verdict (e.g. Dem. 23.69) –it wasonly inprivate actions thattheimplementation wasleft tothewinning party who hadtorely onmeasures ofself-help oronfurther litigation. True, theimposition ofa fine would notalways be followed bypayment, andanapographê brought bythevictorious prosecutor(s) might sometimes follow. However, if anatimos state-debtor participated inpolitical activities, hewould expose himself toaconsiderable riskofarrest (anddeath), notjust byhisprosecutor(s), butbyanyenemy whatsoever whomight wanthimoutof theway. See e.g. Cohen (1995a: 73) andChrist (1998: 34) for this line of argument. 159 n.3), but recent discussions of This similarity has been noted e.g. by Colin (1946: 158– Dem. 22.26 normally donotdrawattention to the Hypereides passage.

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into court according to the laws, because this is a wayof ensuring that the laws inforce, kyrioi. Hecontinues (3.5– 6):

remain

For that reason youhave made separate laws applying individually to each of all the crimes that exist in the city. Somebody commits sacrilege: there are graphai asebeias to the Basileus. Somebody is wicked to his parents: the Eponymous Archon presides over this. Somebody makes an illegal proposal in the city: there is theboard of thesmothetai. Somebody commits a crime which merits arrest: the board of Eleven has been established. In the same wayyou have established the appropriate laws and courts for each of all the other crimes. μ ε ρὑ ῖςὑ μ ρἁπ ὰ νἀ η ά τ ῶ δικ π τ ν δ ιὰ ά ω ὲ τ ο ῦ τ ν τ ογ ω ν ,ὅ σ α ἔσ τ ινἐ ντ ῇ π ό λ ει, μ ο ν υ ό ςἔθ ρ ὶἑκάσ ὶςπ εσ θ ερ εχω ν α τ τ ω ὐ ῶ ν ϕ .ἀ ε α σ ῖτ εβ ὶ ιςπ ὶτ ερ ὰ ἱερ άγρα · ἄρ α ῦ λ ό ,ϕ εία ςἐσ ρ ρ τ ἀ έ α ιπ σ εβ ὸ ὸ ςπ ςτ ὸ ςτ ο ὺ ςἑα υ ·ὁ τ ν ο ο ῦγ εῖς χ ω ν ̣ νβασιλ μ ϕ ρ ά ά τ ν ιςἐ ο ει·θ η α εσ α ι. π τ ν τ ῇ π μ ό ρ θ λ ο τ υκά ο θ ά ὶτού ειγ ετ ἐπ ῶ ν σ υ ν έδ ρ ιῆ γ ὴτ ῶ νἔσ γ ςἄ ο νἕν ω ι. ἀπ τ α χ ρ ια π ξ ο ιε ῖἀ δ εκ ακα θ η κ έσ ε. τ τ ὸ να ὐ τ ὸ νδ ὲ μ ρ ό ά π ο η τ νκ ω ν α ὶἐπ τ ἁ ν λ π λ ἀ ν ἄ ω ὶτ δ ικ ά ῶ ν τ ω ν κ α μ ὶ ο ν ό υ ς κ α ὶ δ ικ ρ ή ι α α σ τ · ή κ ρ ο ν τ ο α τ σ ά ὰ π τ ἑκ σ ο ιςαὐ τ π ῶ ν ἀ τ ε έδ . ο

̣

The similarity of the two passages is hardly coincidental: there can be little doubt that Hypereides must have been familiar with the type of argument employed in Dem. 22.26,88 if not with the actual speech itself.89 Each of these passages represents a wayin which the Athenians made sense of their legal system; andboth of them pretend that the procedural system was logically andcoherently structured. But in each case the logical structure pretended to is different: in one passage the emphasis is onthestanding andresources of the prosecutor/victim, in theother it is the nature of the crime which alone should determine the choice of procedure. When taken together, the two passages suggest that Athenian legal ideology maywell have beenasflexible astheprocedural system itself. Indeed, flexibility on an ideological level is precisely what weshould expect from a juridical system that didnotrecognize the authority of professional legal experts, andwhich developed 27. In 21.25– 26, Demosthenes seems to 88 See Isokr. 20.2 for a topos similar to Dem. 22.25– 6. It may have been a common anticipate a defence argument resembling that of Hyp. 3.5– defence topos to object that theprocedure employed didnotsuit the complaint itself –anda common prosecution argument to anticipate this topos by sneering ‘procedural quibble!’ (cf. 48, Dem. 22.28) The defence topos is also found in twoparagraphê speeches (Dem. 35.47– 35; Hyp. 2.12. 37) andin an attenuated form in Ant. 5.9–10; Isaios 11.32– 37.33– 89 It is impossible to tell whether Hypereides derived his argument directly from Demosthenes’ speech, or whether both authors hadaccess to a collection of topoi in which such a passage was included. Early commentators noted marked similarities between other passages inthespeeches η ρ νκα ὰΔ λ ο λ λ ὰπ α ό ν ,π η ντ ὸ ὸ α τ κ ὐ ν η ύ ω ς π είδ ερ of Demosthenes and Hypereides: μ ῾κ μ ο ῷ π σ ῳ ερ ρ θ β ο ύ λ ε ὶτ α ο υδω ν ἀ ῶ .κ ν ν ῶ ὶ Ε τ ὐ έν γ ο ῷ ρ λ ό π ν υ ὸ α ό δ ν τ α ,ἔ ιώ ςΔ ςκεκλοϕ ν τ ετ ν. .. Euseb. Praep. Evang. 10.14. The ο ρόδηλ κ ε, π η ετ έθ υμ ο ῦἑτέρ ο τ ὰ ρ ο νὁἕτ α ερ ςπ ὲ τ ιμ ὅ from whomin these cases. In fact, it is commentator notes that it is impossible to tell whostole · likely that Hypereides andDemosthenes appeared together in both actions, Demosthenes as defence synêgoros forHypereides against Diondas (Hansen [1974: 36] cat. no.26) andperhaps asco-prosecutor of thedecree bestowing honours onEuboulos (Hansen [1974: 40] cat. no.34). It would notbe surprising if thetwoof themcollaborated in working outjoint court strategies.

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legal doctrines or legal ‘science’. But while modern scholars in general are sensitive to the flexibility of the Athenian administration ofjustice ona functional level, the explanatory model currently applied to Athenian legal ideology, which centres on the social mechanisms of feuding andcompetition for honour rather than the desire to match crimes with appropriate procedures, produces a far toosimple picture thatoften downplays (orleaves outaltogether) theconcerns which the Athenian litigants voiced frequently in their speeches. There is plenty of evidence to suggest that the Athenians didfind problems with the wayin which their legal system worked, andthat negotiation of suchproblems formed anintegral part of their court-rhetoric.90 Asnoted onp. 214 prosecutors often claim that themostimportant function of thecourt is toadminister sanctions, which served boththespecific purpose ofridding society of undesirable individuals andthe general purpose of deterrence. It is sometimes claimed thatpenalties imposed ontherichandfamous areof mosteducational value, because such cases are likely to be widely publicized,91 and even that rich persons deserve less pity than poor offenders, because their wealth ought to give themless incentive forcommitting crimes.92 However, there is plenty of evidence to suggest that the Athenians envisaged situations in which poor offenders could (and should) be taken tocourt under theheading of a public action, and,moreimportant, that the Athenians were notaverse to theidea inprinciple. Generally, according toprosecutors, a law-breaker isa law-breaker andmustbe treated as such regardless of his social standing, andnormally thejustification advanced by the prosecutors for having chosen a public action is the nature of the crime rather than the social standing of the individual whohadperpetrated it or the social standing of the prosecutor himself.93 Theexistence of thepublic actions against kakourgoi confirms that, evenif the mechanisms of incentive andcompetition mayhaveprevented excessively unequal

no formal

21, 163) that thestability of theadministration ofjustice together 90 Todd’s suggestion (1993: 20– with the absence of a ‘formal theoretical critique of the legal system’testifies to an ‘unchallenged acceptance of Athenian law’is problematic. Thefact thata given structure is maintained for centuries does notnecessarily imply that themajority of people arehappy with that structure, northat it is regarded asa model of perfection. Agiven structure mayberetained forwant of a better alternative (cf. e.g. theBritish reluctance toabandon thetraditional electoral system infavour of proportional representation: thisdoesnotnecessarily prove thatthepresent system is regarded as unproblematic, evenbyits mostardent supporters). TheAthenians were acutely aware of thepossibility of miscarriage ofjustice, of theinevitable imbalance between prosecutoranddefendant, andtheproblems arising from strategic litigation. Although suchconcerns arenotconveyed tousinpolitical pamphlets orjuridical treatises, theyarevoiced repeatedly in the law-court speeches. Saunders (1991b: 115) points outthat while ‘Athenian lawwasnot subject to systematic andprincipled analysis andcriticism fromoutside itself’, there wasplenty of criticism voiced within thesystem. 91 e.g. Lys. 27.5, 30.24; Lyk. 1.14–15. 92 e.g. Lys. 31.11; Dem. 45.67. 5 (the speaker goes on to explain his personal 5, 24.1– 24, 28, 23.1– 28, 22.23– 93 Dem. 21.24– motives forvolunteering inthefollowing paragraphs, buttheintroduction isconcerned withthe 9. Forthecorresponding defence topos, 87; Lyk. 1.6– nature of Timokrates’crime); Lys. 13.85– see Hyp. 2.12, 3.3.

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actions tosomeextent, citizens of lowstanding certainly were notprotected against finding themselves at the receiving endof heavyweight action. For the apagôgê/ endeixis/ephêgêsis kakourgôn are heldbymodern historians to have involved poor individuals in particular, andthese procedures were in fact public actions.94 If the accused insisted onhis innocence, he would be heard in a trial of long duration for which hewasunlikely to have been adequately prepared.95 Even if hehimself was able to handle his owndefence reasonably well, the fact that kakourgoi were often kept incustody prior to thetrial would be a serious obstacle when it came to finding people whowould be willing to act as witnesses andsynêgoroi.96 If wecantrust the speaker of Dem. 54, therisks connected with employing an apagôgê kakourgôn were considerable, andit maybe inferred from 54.1 that those risks were more thanjust a question of physical strength. Here the speaker relates howhis relatives andfriends hadsaid that Konon’s evil deeds made himliable to prosecution byapagôgê as a lôpodytês orbya graphê hybreôs. However, the same people advised himnot to initiate an action too heavy for a person of his age. He therefore resolved to bring a dikê aikeias instead. Clearly, thespeaker is nottrying topretend that hehasbrought a lesser’action, ‘ tocarry out a dikê, rather initiating anapagôgê because hewastooweakphysically youth would probably undermine the plausibility of the arrest himself. His very such a claim. Rather, his claim is that he opted for the dikê rather than the public procedure of apagôgê because of his young ageandlack of experience.97 The pasCharacteristics shared bythese procedures andother public actions: Dem. 23.80 (...ἐὰ ν δ ὴ ὲμ μ ετ α ῇτ ϕ β λ ὸπ ω α νὁἀπ έμ π τ νμ ο έρ ο γ α ςτ γ ῶ α νψή ώ ν , χιλ ή ϕ σ ία λ ει), Dem. 24.105 ρ ο σ ο ςπ (... δ η σ ά ν τ ω ναὐ τ ὸ ν ο ἱἕνδ ε κ κ α α ὶεἰσαγόν τ ω νε ρ ο ἡ είτ λ ια ἰςτ ω δ , κατηγ ία ν ο ν ὲὁβ υ ὴ λ ό μ εν ο ςο ἷςἔξεσ ). If myinterpretation of Ath. Pol. 67.5 is correct (see n. 84 above), such τ ιν μ μ ρ μ α η η δ ια εμ έ ετ έν , nomatter whether timêtoi or atimêtoi. ρ actions would be heard in a ἡ Whentheaction wasbrought under theheading of thenomos tônkakourgôn, thepenalty fixed bylawseems to have beendeath. Hansen (1976: 21 withn.25) lists therelevant sources, and η ειτ σ μ ίν ο α τ comments onthepassage inAnt.5.10: ἔπ ιἐπ ίμ , ἀνταπ ν τ σ α ῖν ε ο ν μ ο θ ν ο α ῦ ο ίη υ ό κ ειμ έν π ο νἀ ὸ ο υτ κ τ ν τ ίσ α είν α ,ο ϕ ο ινα ὐτ ο ῦἐμ ὶσυμ ὐ τ ο ῖς λ λ ὰτ ῦσϕ ,ἀ ν τ ο α ο ο έρ ςἕνεκ ῳ κ ειμ έν μ ω ν ῷ τ ῷ ν η . ό κ εθ ιτ ό νἐ ν τ ν ῶ α ν ἂ α νἔνειμ θ α σ σ ν τ ἔλ ο ῦ τ τ ο α λ υ ὶἐντα σ ν ελ ς ,κ ιτ ο ῦ According to Hansen’s reconstruction, theprosecutors mayhavesuggested a fine, butthis was dismissed bythemagistrates before thecase wasbrought tocourt. Gagarin (1997: 182) follows Thalheim (1914) inbracketing ἄ , andaccepts thespeaker’s claim. Headduces other evidence ν thatapagôgê/endeixis wereagônes timêtoi, butfails todistinguish between theprocedures used against atimoi, towhich hisevidence relates, andapagôgê/endeixis kakourgôn. Onthequestion of timêsis indifferent types ofapagôgê, endeixis andephêgêsis, seeHansen (1976: 21, 96–100). 95 In Plato’s Gorgias 486A-B, Kallikles points out that Sokrates andhis fellow philosophers will be insore needof rhetorical skills if prosecuted byapagôgê. 96 This complaint is voiced in Ant. 5.18, cf. Dem. 24.145. For imprisonment in connection with 23), whoargues thatimprisonment wasobligatory apagôgê andendeixis, see Hansen (1976: 22– in apagôgai kakourgôn, whereas the defendant could be released on bail in an endeixis not followed byapagôgê. Wemaywonder howmanypoorpeople would be likely to find guarantors whowould be willing andable to payup.In those cases where the imprisoned could be released onbail thesocial position of thedefendant wastaken into consideration (Dem. 24.144 with Hansen [1976: 22– 24]). OnAthenian prisons in general, see Hunter (1997). 97 Acertain ‘ageism’wasalso atworkinthecourts, andit isclear that a youthful litigant initiating a public action might expect his audience to be prejudiced against him(e.g. Lys. 16.20, where

94

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sage also serves toexplain whythespeaker hadnotbrought a public action relying onthesupport of his friends andrelatives: whenadvising against bringing a public action these people hadatthesame time signalled their unwillingness toparticipate actively onthespeaker’s side. Thus, it would seem that theapagôgê kakourgôn andpresumably theother related procedures were, in practice, notdifferent fromother types of public action in terms of the demand on the prosecutor’s resources –he would have to be experienced himself or,alternatively, count onexperienced people whowould bewilling to

assist him in court. Still, the targets of these procedures are held by most historians to have been socially disadvantaged people, andif that is true weare then dealing witha type ofprocedure which positively invited litigious confrontation onextremely unequal terms.98 Lys. 13, delivered by a synkatêgoros, shows that in an apagôgê kakourgôn theprosecutor could enlist thehelpof supporting speakers. Likewise, the speaker of Ant. 5, who was tried on a charge of kakourgia, implies that he was defending himself against a prosecution team (5.59). This speaker, presumably a wealthy citizen of Mytilene, hadthe means of availing himself of the logographical services of Antiphon –whomight, incidentally, have hadhisownpolitical reasons for providing such support. But a poor Athenian whohadbeen apprehended and imprisoned asa kakourgos would presumably havehadtomakedowiththesupport of his relatives andfriends whowere likely, ceteris paribus, to have been just as poor andunskilled as himself. If it is correct that the procedures of apagôgê/endeixis/ephêgêsis kakourgôn were theprimary procedural weapons aimed at ‘common criminals’whowere likely to have been of lowsocial standing, then theAthenian administration ofjustice didin anycase afford only little protection to such people intheform of a guaranteed hearing before the court. In manycases they were probably noteven given a hearing at all: if the accused admitted his crime whenbrought before the magistrates, hewasexecuted without trial.99 It must be kept in mind that nearly all the assumptions made by modern historiansregarding theactual application oftheprocedures against poorkakourgoi reston arguments from silence, that is, onthefact that wehear so little about them inour sources. To be fair, there is no wayof establishing with certainty howfrequently these procedures were actually used. On the other hand, the fact that they were available in their summary form maybe taken to testify to a significant lack of interest onthepart of theAthenians inproviding adequate procedural protection of those members of society whowere perceived as ‘nasty pieces of work’.100 thespeaker accounts for his being politically active despite hisyouth, andAristophanes’Birds 29) andRhet. ad Alex. 1437a. 1431). See also Carey (1994b: 28– 1430– 83). 98 Hansen (1976: 54), see also Debrunner Hall (1996: 81– 21). See also Hansen (1990: 234 n. 93) against Carawan (1984: 112) who 99 Hansen (1976: 17– argues that mostcriminals would insist ona court hearing. 100 Hansen (1991: 190) points outthat in upholding the right of the Eleven to execute kakourgoi without trial, ‘theAthenians behaved inthematter asdoes thetraditional order inmanysocieties, considering that thieves androbbers belonged as a rule to the lowest section of society, which deserved theleast legal protection while being liable to thesternest legal punishments.’

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But what of those citizens of modest means who did not go to the lengths of burgling homes, robbing people in the street or picking the pockets of the wealthy? There are indications that the Athenians were concerned, on an ideological level, with the potential risks of uneven contests involving those whowere perceived as ‘menof modest means, buthonest’.101This is onearea where wedosee a conflict between the view that crimes must be punished severely and that poverty is no excuse forcommitting them, andtheAthenians’ownrealization that their adversarial system didnotprovide adequate guarantees against excessively unequal contests. We tend to hear about defendants with a lowpolitical or social profile in two rhetorical contexts. One is the attempt of a speaker to illustrate the cruelty andantidemocratic attitude of his opponent by recounting howhis opponent has attacked defenceless fellow citizens bybringing public actions against them. Theother is the context of penalty-assessment where prosecutors argue afortiori thatthejudges are morally obliged to impose anevenharsher sentence ontherich andfamous defendantpresently ontrial, since poororunknown persons have incurred heavy penalties (usually death or disfranchisement) for trivial offences in previous public actions. In Dein. 1.23 the speaker refers to a number of persons whohadincurred the death-penalty on previous occasions. We have no wayof determining the social standing of these men, butit is clear from 1.27 that the speaker intends to contrast their cases with that of Demosthenes presently ontrial: punishing unknown offenders has noeducational value in regard to the rest of thecitizens since the verdict will notbewidely publicized, whereas theconviction of a rich andfamous citizen is bound to have animpact ontheconduct of all members of thecommunity.102 26) refers to the heavy penalties imLikewise, Hypereides (1 fr. VI cols. 25– posed in twotrivial cases: Konon of Paiania wasfined a talent for having received the theôrikon of five drachmai onbehalf of his son, andAristomachos wasapparently punished for having borrowed a tool from the Academy.103 Although we have no means of determining thesocial status of these defendants, Hypereides’message is clear enough. What he is telling his audience is in effect that ‘it could happen to you, too’:

Butif anyoneamong youordinary menmakes a mistake through ignorance or lack of experience whenserving as a magistrate, hewill besentenced toeither death or exile after having been out-rhetored in court bythese men. 101 Thecombination ofhonesty withreduced financial circumstances wasnotstraightforward, asis evident fromRhet. adAlex 1429a. Here theauthor gives anexample of a paradeigma mêkata logon which indicates that poverty wassometimes represented as incompatible with ajust dis18.TheAthenian idea of a modest social position. Fortheopposite argument, see Lys. 24.15– standing andhonesty combining should notbeconfused with theChristian notion thatpoverty is intrinsically virtuous. TheAthenian argument is, rather, thatpeople whoarenotwealthy are forced to restrain their impulses to commit crimes, because they do not have the resources necessary fordealing with theconsequences if caught. Butsee also Arist. Politics 1295b. 102 See also Lys. 14.12; Lyk. 1.14. 103 Worthington (1992: 220) rejects the identification of this Konon with theunknown person in Dein. 1.56 whowasprosecuted fora similar offence. Foranother example of anoffence committed by a poverty-stricken citizen, see Dem. 21.182 where weare told that a certain Pyrrhos

wassentenced todeath forhaving satasajudge despite hisatimia.

3. Transferable

̣

229

charis

̣

ὲνἰδιω μ νὑ ῶ νἐά νμ ὰτ ῶ λ λ ἀ ή ντιν ρ χ ιςἀ [αἄ ντ ρ χ ω ]δ ν ι᾽ἄ γ ν ι᾽ ̣ τῶ ο ια νἢ[δ [ι, οὗτ ο ]ὑ ς ῃ ρ τ τ π μ ά ία ὸτού ν ἁ τ ἀ π ει]ρ ω νκ[α ]τ η τ ρ ρ α ο ρ ευ θ ε ὶςἐ [δ ῷ ντ ικ ]α [θ ἢ ἀ α π ο ν ε ἐ ῖ]τ α κ ιἢ τ ῆ ςπ ρ [ρ ίδ ίῳ α τ η ο τ ] ἐκπ σ ς εσ εῖτα ι·104

Thepassage combines theafortiori argument that Demosthenes mustbe punished at least as heavily as Konon andAristomachos withanattempt toblacken thecharacter of Demosthenes andhisfellow rhêtores.105 Theimage conjured upis that of a group of selfish, merciless, powerful characters whoare ready to pounce on any minor offence committed inadvertently by an inexperienced citizen, whowill be unable to defend himself whenconfronted with their rhetorical skills. Thesame accusation iscarried evenfurther inDemosthenes’attack onMeidias, whois accused of abusing hispower andposition to walk all over hisdefenceless fellow citizens, andthe fate of the public arbitrator Straton is adduced as anexample of Meidias’ cruelty.106 Allegedly Meidias has not conducted the prosecution according to the rules, andStraton hadnoteven acted illegally. But the message is above all thatMeidias doesnotshrink fromusing a steamroller tocrack a nut: hehas mismatched hismanandtheaction. Straton’s example serves asa demonstration of what can happen if unscrupulous rich people abuse their power through the legal system, which is, according to Demosthenes, notat all the level playing field that the Athenians would like it to be. Dem. 21 is unique among the extant forensic speeches initsfocus onthetensions between thearistocracy andtheordinary members of theAthenian dêmos inveryexplicit terms, anddoubts havebeenvoiced asto whether it was written at all for delivery in court.107 Still, we find the objection to uneven contests madeelsewhere inoursources.108 Their ownawareness that noformal restrictions would prevent resourceful litigants fromusing heavy procedural artillery against weakopponents mayhavebeen one of the most difficult problems with which the Athenians had to contend. Any

ideologically motivated opposition to excessively unequal contests was bound to conflict with the idea that punishment applied consistently across the social scale served the general purpose of deterrence, andwith the idea that the nature of the crime, rather thanthesocial standing ofthedefendant, ought todetermine thechoice

of procedure which would influence the level of the sanction imposed. Athenian democratic ideology withitsinsistence onequal political opportunity forallstressed that political participation, active as well as passive, wasopen to all, andthis also meant that the risks connected with active political participation should be the same for all.109

But unless the system provided some ways of addressing theproblem of those defacto inequalities in risk which arose from unequal contests in the courtroom, where theAthenian inthestreet might findit farmoredifficult toobtain anacquittal 104 See also Dem. 24.112. 105 See also Dem. 51.11. 97. 106 Dem. 21.83– 107 e.g. Wilson (1991), but see Erbse (1979b), E.M. Harris (1989), MacDowell (1990) andOber (1994). 3; Aisch. 3.1; And. 1.132; Dem. 27.2, 30.3, [44].3; Isaios 1.7. 108 Lys. 19.1– 109 Onrisk connected withactive participation, see mostrecently Daverio Rocchi (1998).

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thanhiswealthy, well-connected, andwell-educated fellow citizens, there would be a risk of deterring a large section of thecitizen body from active participation, not only as speakers in the Assembly but also as ordinary magistrates. Andthe latter were needed inconsiderable numbers if thedemocracy wasto function at all. Although it maynot have happened very frequently that ordinary magistrates were in fact brought to book for their conduct inoffice, the risk wasthere, andit is clear that Hyp. 1 fr. VI col. 26 cited above plays on the audience’s anxieties in precisely that regard. This mayprovide at least part of thereason whysome speak-

ers could represent as ‘democratic’the principle of allowing experienced speakers to assist defendants inneedandbring their personal influence tobear onthecourt’s decision. But it is equally obvious whythe very same practice might give rise to the objections voiced by the prosecutors whoclaimed that it wasundemocratic. Not only might a wealthy andwell-connected defendant find it easier to enlist the support of other powerful people (Dem. 21.112), the risk that the practice might lead to the development of an informal system of legal patronage mayalso have been a cause for concern. Unlike Roman advocacy, which hadits roots in a formal system of patronage and the moral obligation of patrons to plead on behalf their clients, the lack of a

comparable system in Athens would very likely have left ordinary defendants with more restricted access to legal assistance fromprestigious andskilled synêgoroi.110 However, just as alternatives to a system of patronage were found in Athens in 43]), there were alternaregard to economic crisis-management (Millett [1989: 37– tive structures in place, through which ordinary citizens could obtain synegorial support fromtheir more powerful fellows. Theattested provision of elected phyletai assynêgoroi maybeinterpreted as an ingenious measure toavoid a system of patronage building uparound public actions, while atthesame time leaving anopening forweakdefendants toobtain assistance. The procedure bywhich a prospective defendant could approach hisphylê andask for supporting speakers to be elected is obscure, butthe general comment on the practice inDem.23.206 together withHyp.3.12 andAnd. 1.150 suggests thatit was quite common.111 In Hyp.3.12 Hypereides relates howPolyeuktos asked hisphylê forassistance in theform of defence synêgoroi:

Butwhenyouwere defending yourself in theaction brought byAlexandros from Oion youasked for ten synêgoroi from the phylê Aigeϊs, of whomI, too, wasone of those selected byyou, andyousummoned other people from among the rest of theAthenians to help youout in court. ό γ μ ὲνσυνη κ ὰ ε ,δ υ ἴο ῦἐ ρ ο υτ ο ξΟ λ ᾽Ἀ εξ δ γ ν ά ευ ε γ ὑ π ῶ ν α ςτ νἀ ὸ ᾽ἔϕ ᾽ὅ ἀ λ λ τ θ η ε ὶςὑ π ὸσ κ ο ,ἐ ῦ ἱρ α ἦ ν ρ γ ε[ἷ]ς ὼ ο σ ω ,ὧ α κ ὶἐ ν υ ῆ ςἐ ςᾐτή υ η λ ίδ κ ῆ ο τ ςϕ ςΑ ἰγ ή θ σ η ά ο ν τ ς ο ο ὺ ντ ιο ρ ςβ ή τ σ ὸδικα ὶτ η ν ιςἐπ λ ε α ά ίω νἐκ ]θ δ ὲτ ῶ νἄλ ω ν[Ἀ λ

ι. σ ο

32). OnAthenian avoidance of patronage, see Millett (1989). 110 Crook (1995: 31– ῶ ςἐξελ ερ ν α εγ α ὶϕ α τ ςκ ῦν ο δικ ᾽ἀ τ ισ μ έγ ὰ ῖο ι, τ ο ν ὺ α η ςτ ρ 111 Dem. 23.206: ὑ μ ε εῖςδ ᾽ ν δ θ ,ὦ ἄ ςἈ ο ι σύ έν ι ν ο δ ικ ε ςᾑρημ ντιν ῶ λ ετ υ νϕ ῶ ὰτ ρ ᾽ἀστε ῖ εἴπ α α ὶπ μ υ ινκ έν ω σ ο υ χ ο νἢδ νἓ ς ,ἂ ϕ ίετ θ ε· ῶ σ ιν δ εη ,ἀ

᾽

3. Transferable charis

231

This passage does notmake it entirely clear whether thesynêgoroi were elected by thephylê, or whether Polyeuktos hadsimply been given permission to choose ten menaccording to his ownpreferences. That the latter wasthecase is indicated by Hypereides’statement thathehadbeenselected byPolyeuktos (α η θ ἱρ ε ὶςὑ π ὸσ ο ). ῦ It is also suggestive that inDem. 23.206 such supporting speakers arereferred to as ‘elected from among the phyletai’ rather than ‘elected by the phyletai’ (π ρ α ὰτ ῶ ν ϕ υ λ ετ ῶ ᾑ ν ρ η μ έν ο ισ ύ ν δ ικ ο ι). Apassage inXenophon’s Anabasis maythrow some further light onthis problem. After a confrontation between Dexippos of Sparta and Agasias of Stymphalos which hadledto a conflict between thesoldiers andKleandros, Agasias offered todeliver uphimself fortrial before Kleandros inorder toput an end to the hostilities, but he asked his fellow soldiers to provide him with some mento speak in his support (6.6.18–19): ‘But elect some menfrom among yourselves and send them with me to Kleanso that they mayspeak and act on mybehalf, in case I omit some point from mydefence.’ Then the army gave himpermission to select the men he wanted. Heselected thegenerals. dros,

'σ μ υ π έμ ψ α τ έν μ εμ τ ο ο ιὑ ῶ ναὐ ιμ τ ῶ νἑλ μ εν ρ ό ο ιπ ὸ λ ςΚ ρ έα ν ο νο ἵτ δ ιν ε ς ,ἄ ν μ ο ῦ κ ρ ά α λ έ ρ ἐ , κ α ὶ ὶ ἐ κ ν π υ π ω ξ ὑ υ .' τ τ ο σ ι ο ι ν ύ ο π σ ο υ ξ ρ λ ί ὲ ἔδ ὼ κ π γ αα ω ε ν τ ιἐ ἡ σ τρ α τ ιὰ ο ὕ σ τ ιν ο α ύ λ ρ ο ιτ μ ςβ ο ο εν ελ π ν ο ό ἰέ ρ ν ι. ὁ ο α είλ δ η ὲπ ε τ ο τ ο ὺ τ ςστρα

γ ο ύ ς .

When making his petition, Agasias asked the army to select his supporters, but it is clear that once authorization had been given from the army, the final choice was madebyAgasias himself. It maywell be that, insuchsituations, a number of volunteers were expected to step forward –andat this point there would undoubtedly be opportunity for the rest of the soldiers to make noisy objections if a volunteer was deemed unsuitable for whatever reason. After that point, the petitioner would presumably be allowed to make hisownchoice from among the volunteers. This reconstruction mustof course remain tentative, butif it is accepted it provides some explanation of the practice of appointing defence synêgoroi from the phylai of thedefendants whowere in needof support. Even if it wasthedefendant himself whoultimately stated his preference anddecided the outcome of the election, the appointment of synêgoroi would still take place openly in a controlled environment. The defendant, whowould inevitably be landed with a subsequent debt of charis in return forsuch legal support, would owethis debt as muchto his civic subdivision astheultimate provider of this service astothose individual members whohaddecided to volunteer in the election. In this regard, it mayalso be significant that synêgoroi were elected from the defendants’phylai rather than their demes: the larger the unit, the smaller the risk of informal ties of patronage and obligation being forged between weakdefendants andpolitically powerful synêgoroi. Although the practice of allowing prominent andexperienced citizens to support individual defendants wasclearly a double-edged sword in a democratic context, the phylê elections testify to a general acceptance not only of the use of defence synêgoroi as such, but also of the fact that they were indispensable in certain types of legal action, that is thepublic ones.

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4. Conclusion Most recent accounts andinterpretations of Athenian legal actions, public as well as private, arebased onthe assumption that what thejudges witnessed wasa one-toone agôn between two individuals who retained their position as protagonists throughout the proceedings. While this description fits a relatively large number of private actions, manyattested public actions call fora different analogy. Allof them were of course agônes, contests, butfewof thepublic actions attested directly inour speeches seem to have worked as straight confrontations between twoindividuals only. Many public actions as experienced by the audience are better compared to musical contests between twoquartets, quintets, or even two chamber orchestras, except that thecontributors incourt spoke in succession rather than simultaneously. If onelistens to a piece of music written for several instruments, it is perfectly possible topickoutandconcentrate onthetuneplayed, say, bytheoboe. Acomposer of a work for several instruments mayalso decide to let one instrument stand outas more conspicuous than therest, just as theparticipants in a given legal team could anddidmakecontributions of varying length andimpact. But, ultimately, thepiece of music is intended to work as anentity in which all the instruments join as contributors, andthe same seems to have been the case in a good number of Athenian public actions. The reasons whythe Athenians allowed the practice of team-based public actions is a matter for debate. It has been suggested in this chapter that the practice created at least as many problems as it solved. True, the possibility of risk-free participation on public prosecution teams meant that there wassome substance to theAthenian claim thatanycitizen whowished hadtheopportunity totake anactive part inpublic life, even if hisfinancial resources were limited. But atthesame time the practice created opportunities for corrupt andeven potentially subversive litigious behaviour; andthe straw man’in particular is anexample of howsuch pros‘ contribute in their ownwayto a widening of the gap ecution teams could in fact For thepractice provided wealthy citizens withtheoption of between rich andpoor. paying their less prosperous fellows for assuming the risks of politico-legal participation on their behalf; andif it wasdiscovered that a citizen hadreceived misthos in return forlaunching a public action inhisownname, he,rather thanthepersons who hadpaid him, would have been branded as the villain. Onbalance, however, the Athenians mayhave beenprepared toaccept thedisadvantages that werecreated by such prosecution teams, because their collegiate nature offered the best guarantee that public actions would have reached the courts once they hadbeen initiated. As far as defence teams are concerned, that type of legal support also contributed to the creation of real social inequalities at the same time as it purportedly served tocreate a level playing field between prosecution anddefence. Ashasbeen argued above, the Athenians seem to have been acutely aware of this problem. Inorder tominimize theadverse effects of synegorial activity while atthesame time retaining the benefits of the practice, the Athenians seem to have responded withtheir usual knee-jerk reaction whenever they wereconfronting thereal political inequalities created bytheinequalities of wealth between individual members ofthe

4. Conclusion

233

citizen body. They turned anykind of payment for anykind of synegorial activity into a criminal offence, nomatter whether thesynêgoros acted ina public action or ina private suit. Thebanonsynêgoria inreturn fora feemaythusbeinterpreted not so much as a manifestation of a conscious Athenian desire to keep their legal proceedings in the hands of amateurs, as it maybe interpreted as a wayin which the Athenian tried tokeepthesocially divisive side-effects of suchlegal assistance to a minimum.

Onthe other hand, theeffect of thebanonmoney being received inreturn for synegorial assistance was undoubtedly an important reason whylegal advocacy undertaken byexpert practitioners never developed in classical Athens, in spite of theimportance of thedemocratic courts andthecentral position thatlitigation occupied in Athenian political life as well as in the lives of individual citizens. But although we should not regard Athenian synêgoria as part of the ‘genesis of a legal profession’, to putit in Bonner’s words (1927), theuseof supporting speakers was a central feature of litigation in democratic Athens. Thesynêgoros mustbe moved fromthemargins tothecentre of Athenian legal proceedings. A full appreciation of the highly complex anddiverse court-room strategies adopted by Athenian litigants is possible only if the synêgoros is given the place in ourreconstructions that he deserves.

Catalogue of team-based prosecutions The aimof this catalogue is to provide anoverview of those attested public actions in which more than oneprosecutor wasactively involved in a speaking capacity. It covers theperiod fromwhich ourforensic speeches date (ca. 420 to324/3), andthus it does not include evidence for earlier fifth-century joint prosecutions for which Plutarch is ourmostimportant source. However, I append a list ofjoint public actions attested in Plutarch’s Lives at the endof the catalogue. The list includes only those actions for which Plutarch himself indicates that he has derived his information froma classical source.

Eisangeliai referred directly from the boulê to the dikastêria andapophaseis have notbeen included inthis catalogue, since it is generally accepted that teams of specially appointed prosecutors would plead in such actions. For eisangelia to the 144, and boulê thereader is referred tothecatalogue inHansen (1975) cat. nos. 131– 142). However, for apophaseis to the detailed catalogue in De Bruyn (1995: 120– three items fromthese catalogues will be listed below (Hansen [1975] cat. nos. 140 142] cat. no.4) onthegrounds that the identification and 142, DeBruyn [1995: 120– of procedure in these cases is doubtful. Finally, a note of caution mustbesounded: in those cases where names of individual prosecutors are known, I have indicated their entry numbers in Kirchner’s Prosopographia Attica andin Fraser’s andMatthew’s A Lexicon of Greek Personal Names II. Asnoted inChapter 5, these identifications arevery often highly insecure, and they should accordingly be taken cumgrano salis.

417 (Gagarin [1997: 174]) Euxitheos of Mytilene 1. At some point during the years 420– wasprosecuted inanendeixis/apagôgê byseveral unidentifiable prosecutors (5.64, 94), one of whom is the main target of the speech Ant. 5. The passage Ant. 5.12 indicates that the prosecutor whoplayed the most significant rhetorical part in the attack on the defendant Euxitheos was a synêgoros, whoas such hadnot sworn the parties’ oath (pace Gagarin [1997: 183 and205]). In 5.59 Euxitheos refers explicitly to the relatives of the murdered Herodes as participants in the prosecution, andit is likely that one of them hadassumed legal responsibility for the action. 2. Shortly after 410, but before Lys. [20] was delivered, Polystratos (Deiradiotes?) (PA 12076 = LGPN II s.v. 13) was convicted in a public action of unknown type (Todd [1993: 302] suggests a euthyna). Several prosecutors, whose identity cannot beestablished, seem to have participated inthecase (Lys. [20].11, 18).

3. Shortly after 410 Polystratos (Deiradiotes?) (PA 12076 = LGPN II s.v. 13) was prosecuted in a public action of unknown type. Heapparently faced several prosecutors (Lys. [20].5 andpass.), butit is notindicated whoamong them wasthemainprosecutor.

4. Shortly after 403/2 the speaker of Lys. 21 wasprosecuted in a public action (21.16, 21– 22) of unknown type (Todd [1993: 302] suggests graphê dôrôn as a possibility). It appears 21 that hewasconfronted with several katêgoroi, butwedonotknowwho from Lys. 21.20– hadtaken legal responsibility for the action.

Catalogue

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prosecutions

235

5. Inca. 400 a public action of unknown type1 wasbrought against thespeaker of Lys. 25. Several prosecutors were involved (25.1). In25.25 three individuals arementioned byname: Epigenes (PA 4778 = LGPN II s.v. 5), Demophanes (PA 3651 = LGPN II s.v. 1), and Kleisthenes (PA8525 = LGPN II s.v. 2). The passage seems to be a standard antikatêgoria directed against thespeaker’s opponents, andit isa reasonably inference thatthethree were involved intheprosecution. Wedonotknowwhowaslegally responsible fortheaction. 6. Inca. 400 a public action of unknown type wasbrought against Eryximachos (PA5187? = LGPNII s.v. 1) whodelivered the speech P.Ryl. 489. Hewasapparently prosecuted by more than one person (col. 3.60, 79).2 We do not know who hadtaken legal responsibility

fortheaction.

130, cat. no. 10) wasbrought against Andokides 7. In 399 anendeixis (Hansen 1976: 128– Leogorou Kydathenaieus (PA828 = LGPNII s.v. 7) by Kephisios (PA8288 = LGPNII s.v. 1), who was aided by a number of supporting speakers. In his defence speech Andokides mentions the prosecution synêgoroi Meletos (1.94, PA9825 = LGPN II s.v. 4), Epichares (1.95, PA4991 = LGPN II s.v. 7), andAgyrrhios (Kollyteus?) (1.133, PA 179 = LGPN II s.v. 1). A synêgoros, whocannot be securely identified with anyof the persons mentioned byAndokides, delivered [Lys.] 6 onthe side of theprosecution (Lys. 6.42). Kephisios and his fellow speakers areall referred to askatêgoroi in And. 1.6; butit canbe inferred from And. 1.33 that Kephisios wascarrying theprosecutor’s risk alone.

8. In 399 Sokrates Sophroniskou Alopekethen (PA 13101 = LGPN II s.v. 30) was prosecuted ina graphê asebeias byMeletos Meletou Pittheus (PA9830 = LGPNII s.v. 14), who received assistance fromatleast twosynegoroi: Anytos Anthemionos (Euonymeus?) (Plat. Apol. 36A, PA1324 = LGPNII s.v. 4) andLykon (Autolykou Thorikios?) (Plat. Apol. 36A, PA9271 = LGPNII s.v. 19). That thename of Meletos wasonthe writ that formed thebasis B, andApol. 36A– B suggests that healone of theaction isclear fromPlat. Euthyphron 2A– carried the prosecutor’s risk. 9. In 400/399 or 399/398 Nikomachos (PA 10934 = LGPN II s.v. 4) was prosecuted in a 177] cat. no. 140 andTodd [1996: public action of unknown type (see Hansen [1975: 166– 106] for discussions). Lys. 30 was delivered on the side of the prosecution, and the 104– 35). Wedonotknowwho speaker indicates that hewasoneof several prosecutors (30.34– hadtaken legal responsibility fortheaction.3 1

2

3

511), Bizos Lys. 25 is widely held tohave beendelivered ina dokimasia: e.g. Blass (1887: 510– 113), Kahrstedt (1936: 59 n. 2), Dover (1968: 7, butsee 188– inGernet andBizos (1926: 111– 189where hesuggests thatthespeech maybea hypothetical defence), MacDowell (1978: 168), Hansen (1991: 219), Todd (1993: 302). Butthis is notatall certain, andboth Harrison (1971: ὴ ἐ κ ρ ν χ μ ᾶ ὖ ςο 201) andOstwald (1986: 503 n. 17)arecautious. Thegeneral remark in25.10 ὑ α ςneednotrefer totheprocedure butmayhave beenusedinthe ο ίτ τ λ ὺ ο ςπ ιν ά ε ζ ιμ δ κ ν ο ω τ τ ο ύ broader sense of ‘putting tothetest’. Therestof theargument infavour of a dokimasia is based first andforemost uponthespeaker’s silence inregard toa possible penalty andthefact that the text contains no reference to the procedure of eisangelia, held to be the only alternative to dokimasia. Butfirst, there areseveral pages missing from thespeech, andsecond, theclaim that theonlyalternative todokimasia would beeisangelia isbased onthespurious title of thespeech ). ία γ μ ο υκαταλ ω ο ή ε ςἀ λ (δ ύ σ π ο Pace Dover (1968: 5) andTodd (1993:̣ 302), I donotbelieve that this speech wasdelivered in a 49 arestrong indications that thespeaker ι) andcol. 2.41– α ώ θ σ ιῶ ξ εσ ζ dokimasia: col. 3.62 (ἀ risked more inthepresent trial thanjust being rejected as unsuitable forholding office. Blass (1887: 466) suggested that the speaker of Lys. 30 acted as a synêgoros, butthere are no

236

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10. In ca. 395 Alkibiades Alkibiadou Skambonides (PA598 = LGPN II s.v. 24) wasprosin a graphê astrateias (Lys. 15.1 and4 with Hansen [1973: 17]), in which Lys. 14 and 15 were delivered. Archestratides (PA 2395 = LGPN II s.v. 2) addressed the court before thespeakers of Lysias 14and15(Lys. 14.3 andLys. 15.12). Lys. 15.12, inwhich the speaker refers tohimself asArchestratides’friend andassistant inthepresent case, suggests that Archestratides hadtaken legal responsibility fortheaction. It cannot be ruled outentirely, however, that thespeaker of Lys. 14hadentered hisname onthewrit along withthat of Archestratides (see Carey [1989: 142]).

ecuted

11. In ca. 390 Polyainos (PA 11904 = LGPNII s.v. 2) wasprosecuted in a public action of unknown type (Todd [1993: 260] suggests anapographê, andin this he hasbeen followed 164]). Lys. 9 was delivered by Polyainos. Several individuals by MacDowell [1994: 163– ρ γ ο ο ). Since the η ύ λ α were involved in the prosecution (9.14: ἔβ ν ν α ψ α έ τ ὐ δ νκα ν ο ῶ τ ω τ stratêgoi asa board seemto havebeeninvolved inthecase, it is likely thatmorethanoneof themaddressed thecourt.4 Wedonotknowwhowaslegally responsible fortheaction.

12. At some point during the first decade of the fourth century, Dionysios (PA4091 = 132] cat. no. 12)against AgoraLGPNII s.v. 12) brought anapagôgê (Hansen [1976: 130– tos (PA 177, notinLGPN). Dionysios’cousin delivered Lys. 13ontheside of theprosecu87 indicates strongly that Dionysios had assumed sole responsibility for tion. Lys. 13.85– the legal action, andit washewhohadto negotiate thewording onthe writ with theboard of theEleven before the latter were prepared to admit thecase. It maybe inferred that the speaker of Lys. 13,though heavily involved rhetorically, wasnotlegally responsible forthe action. Lys. 13.90 maybetaken as anindication that there were yetmore synêgoroi acting

on Dionysios’ side.

13. At some point between 395 and386 Epikrates Kephisieus (PA4859 = LGPNII s.v. 70) was prosecuted in a public action of unknown type (Hansen [1975: 66 n. 6] suggests a euthyna), inwhich Lys. 27 wasdelivered byoneof theprosecutors. Thespeaker of Lys. 27 15), buthedoes notindicate whocarried responrefers to himself as part of a team (27.14– sibility for the action.

92] cat. 14. In 373 two eisangeliai to the Assembly ([Dem.] 49.9–10, Hansen [1975: 91– nos.80 and81) were brought against Timotheos Kononos Anaphlystios (PA13700 = LGPN II s.v. 32) andAntimachos (PA 1110 = LGPN II s.v. 13) respectively. Kallistratos Kallikratous Aphidnaios (PA8157 = LGPNII s.v. 50) andIphikrates Timotheou Rhamnousios (PA 7737 = LGPN II s.v. 4) clearly played a very important part in the prosecutions, butthe ϕ εισ ε ή κ ) does notallow theconclu10 (ἐ ε ς ιandκατηγοροῦντ τ phrasing in [Dem.] 49.9– sion that either orboth of them hadinitiated theeisangeliai. Both actions involved several τ ε ν ρ ο ). ςα εύ ὐ τ ο γ ῖς ο ἱσυνα supporting prosecutors ([Dem.] 49.9: ο

15. In 366/5 Chabrias (Ktesippou?) Aixoneus (PA 15086 = LGPNII s.v. 2) wasprosecuted in a public action of unknown type.5 At least twokatêgoroi were involved: Philostratos

4

5

positive indications inthespeech thatthecourt hadalready beenaddressed bya previous speaker. I aminclined to follow Blass, butstill prefer to errontheside of caution. Theonlypoint of which wecan be sure is that the speaker of Lys. 30 didnotact as sole prosecutor. 160) thattheprosecutors confronted byPolyainos It hasbeenargued byMacDowell (1994: 157– were thestratêgos Ktesikles andsome of his secretarial staff. See, however, Dreher (1994: 166– 167) whoargues that several stratêgoi (but not necessarily the board in its entirety) were involved in the prosecution. The action is classified tentatively as aneisangelia byHansen (1975: 93 cat. no. 84).

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237

Dionysiou Kolonethen (Dem. 21.64, PA 14734 = LGPNII s.v. 52) andLeodamas Acharneus (Arist. Rhet. 1364a, PA 9077 = LGPN II s.v. 3). We do not know who was legally responsible for the action.

16. In 361 Aristophon Azenieus (PA 2108 = LGPN II s.v. 19) prosecuted a number of unnamed trierarchs in an eisangelia to the Assembly (or possibly to the boulê, Hansen [1975: 118–119] cat. no. 142).6 It is claimed in [Dem.] 51.9 and 16 that a number of unidenἱσυγ tifiable supporting prosecutors hadbeeninvolved (ο κ γ ρ α η ο ο τ ῦ ν τ ες ). Wedonotknow precisely whohadbeen responsible for initiating these actions; butAristophon must have played a very significant part on the prosecution team, and it is possible that he hadalso instigated theprocedures in thefirst place.

99] cat. no. 96) wasbrought 17. In 359 aneisangelia to the Assembly (Hansen [1975: 98– against the stratêgos Kephisodotos (PA 8313 = LGPN II s.v. 10). Demosthenes Demosthenous Paianieus (PA 3597 = LGPN II s.v. 37) participated in the prosecution, andAischines’ account (3.52) suggests that Demosthenes hadnothimself been responsible for initiating γ ᾽εἰσα ελ γ η σ ία νἀ ε π ςα ν κὤ κ ὐ τ ο ὐ ῦκρινομ έν ο ρ υπ ρ ὶθανά ε ο ο the action (ο τ ς ο υκατήγ γ εν έσ θ α ι). Hansen suggests that the eisangelia was brought by Euthykles Thrieus (PA 5581 = LGPNII s.v. 38), but while the latter’s involvement in the prosecution is suggested in Dem. 23.5 and23.167–168, wecannot tell whohadbeen legally responsible for the action. 18. In 355/4 a graphê nomon mêepitêdeion theinai wasbrought against a lawproposed and carried byLeptines ek Koiles (PA9046 = LGPNII s.v. 7). Ourmost important source for this action is Dem. 20, andfrom this speech it appears that there were at least three prosecutors involved: Apsephion Bathippou (PA2808 = LGPNII s.v. 4), Phormion (PA 14952 = LGPNII s.v. 8),andthespeaker of Dem.20 whomayhavebeenDemosthenes Demosthenous Paianieus (PA3597 = LGPNII s.v. 37) himself. Prior to this action, a prosecution had been brought against Leptines byApsephion’s father, Bathippos (PA2814 = LGPNII s.v. 1), whohaddied before the case could be heard bya court (Dem. 20.144). Bathippos appears to have assumed sole legal responsibility for this action (ἐ ρ ά γ ψ α τ ο , Dem. 20.144). Dem. 20.3 Apsephion hadassumed legal responsibility for relaunching the According to Σ ὴ ν ὡ ϕ ς ρα μ λ εν γ ό ο ςτὴ ν case, while theother prosecutors involved acted as hissynegoroi (ἑ γ ρ ν ο τ μ ο ρ ίω ν ή ὸ Φ ν α ο ἐκ ). InDem.20.1 η ά λ εσ ν ν ςὢ σ υ ε ν τ ιώ ἰδ α ἶτ ὸ ρ ςε τ α π ῦ ιά δ ο χ ο ο δ ςτ υ ν ερ εῖν , 20.1), andin thespeaker characterizes histaskasthatof acting asa ‘co-speaker’(σ μ γ εθ γ υ ώ ) whowill ensure that α 20.100 hesuggests himself andPhormion asguarantors (ἐ Dem. 20.100). Apsephion proposes a lawto replace that of Leptines (see theargument inΣ

19. In 355/4 a graphê paranomôn (Hansen [1974: 32] cat. no. 12) wasbrought by Euktemon(PA5784 = LGPNII s.v. 11)against Androtion Andronos Gargettios (PA915 = LGPN II s.v. 3). Euktemon received assistance from Diodoros (PA3919 = LGPNII s.v. 11) who delivered Dem. 22. Diodoros addressed thecourt after Euktemon (Dem. 22.3), butit is not clear if Euktemon alone wasresponsible for the action.

33] cat. no. 13) was brought 20. In 355/4 (?) a graphê paranomôn (Hansen [1974: 32– against Euktemon (PA5784 = LGPNII s.v. 11). Androtion Andronos Gargettios (PA915 = 6

119 cat. no. 142) classified the action as aneisangelia to theboulê, andin Hansen (1975: 118– this he is followed by Rhodes (1979: 110). Pace Rhodes (1979: 110 n. 62) I donotbelieve that ᾶ ς[Dem.] 49.9 necessarily refers to the boulê (this point is made by Hansen himself μ the ὑ [1975: 119 n. 2]). For the problem relating to katacheirotonia in the sense of a preliminary verdict (according

to Hansen notapplicable ineisangeliai to theAssembly) see Chapter 3: 2c.

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LGPNII s.v. 3), Glauketes (PA2946 = LGPNII s.v. 4), andMelanopos Lachetos Aixoneus (PA9788 = LGPNII s.v. 7) were all involved in the prosecution (Dem. 24.13– 14: γρά ϕ ο ν ισ μ ). MacDowell (1990: 327– α τ α ιτ ὸψήϕ 328) mentions Androtion’s involvement in this case as problematic, because Androtion hadfailed to get 20% of the votes in a previous public action. The penalty for that was partial atimia, i.e. Androtion must have lost his capacity for bringing another public action of the same type. If weassume that Androtion wasinvolved onlyassynêgoros inthegraphê against Euktemon, while thenameofGlauketes or Melanopos (or both) waswritten onthegraphê, MacDowell’s problem is solved.

21. Shortly before or in 354/3 Diodoros (PA3919 = LGPNII s.v. 11) mayhave initiated a public action of unknown type against Androtion Andronos Gargettios (PA915 = LGPNII s.v. 3) (Dem. 24.8– 9). Euktemon (PA5784 = LGPN II s.v. 11) assisted Diodoros (ἦ λ θ ο ν ἐ π α ετ ο ᾽Εὐκτήμ τ ν ὐ ὸ νμ ο ), but wedo not know whether one or both of them addressed the᾽ ς court as prosecutors. The case washeard in the boulê, later debated in the Assembly, and ultimately referred to a court manned bya thousand dikastai. It is notclear, however, if the passage Dem.24.8– 9 refers toa separate action against Androtion, orwhether it is identical with the case recounted in 24.11– 14, in which the graphê paranomôn mentioned above (cat. no. 19) formed part of theproceedings (this hasbeen suggested e.g. byHansen [1974: 32] cat. no. 13). If the latter is thecase, then thecourt-proceedings mentioned in24.9 must refer to this graphê paranomôn, in which Euktemon appeared as defendant, while theexpression ἦ λ θ ο νἐπ ᾽α ὐ τ νrefers to the attack launched by Euktemon on two trierarchs ὸ through a decree proposed in the Assembly which also implicated Androtion, Glauketes, andMelanopos (see cat. no.20, above).

22. In 354/3 a graphê nomon mêepitêdeion theinai was brought by Diodoros (PA 3919 = LGPN II s.v. 11) against Timokrates Antiphontos Krioeus (PA 13772 = LGPN II s.v. 63). 10). Euktemon (PA 5784 = LGPN II s.v. 11) acted as supporting prosecutor (Dem. 24.9– Diodoros mentions inDem.24.3 that heis legally responsible fortheaction; butit cannot be ruled outcompletely that Euktemon, too, hadadded hisname tothe writ.

23. In 352/1 (?) a graphê paranomôn (Hansen [1974: 33] cat. no. 14) wasbrought against Aristokrates (PA 1897 = LGPN II s.v. 13). Euthykles Thrieus (PA5581 = LGPNII s.v. 38), whoprobably delivered Dem.23 (hyp. 2 Dem.23) ontheside oftheprosecution, indicates inhisspeech thathewasacting aspart ofa team(Dem. 23.18, 186, 215). In23.5 thespeaker ὴ ν τ ϕ α η ν ύ τ ρ α γ α ὶα ὸ ν τ ὴ ὐ ςτ claims that he hadtaken legal responsibility for the action (κ κ ). ε ῖν εγ ἀ π εν

24. In 348 Lykinos (PA 9198 = LGPN II s.v. 6) brought a graphê paranomôn (Hansen [1974: 34] cat. no. 17) against Philokrates Pythodorou Hagnousios (PA 14599 = LGPNII s.v. 76). According to Aischines 2.14 thecase wassetupbya number of Philokrates’politiϕ ροὗ τ α ιγ ον ὰ τ ρ ο ιπ α α ρ ά cal rivals whopersuaded Lykinos to puthisname onthe writ (γ μ ὴ ν ο ι). Wemayassume that Lykiεν ρ α ἐπ ά ψ ιγ ϕ ισ μ α ,Λ ρ α υ κ γ ῖν ν ο π μ ἐ ν ὶτ ὴ ω ν τ ν ὸψήϕ ό nos wasprovided with synegorial assistance by Philokrates’ rivals in court (it wasintheir interest thatthecase should succeed); yetwhentheaction ended ina crushing defeat forthe α ὶ prosecution, Lykinos waspresumably theonlyonewhohadtosuffer theconsequences (κ ϕ ω ν ο ὐ ή ο ν έρ ςτ ψ ῶ μ ν ο τ π έμ π ο ὸ ςτ μ εν ά ρα ψ η δ ὲγ ,ὁ ρ ά ς τ γ ιλ ε οκ ιΦ ϕ εύ τ ὸ τ ελ ευ τ α ν π ῖο ἀ ο μ ετ α β λ μ ά α ν ε ι).7

7

Aisch. 3.62 suggests that Lykinos carried theprosecution onhisown; butit is conceivable that theomission of Lykinos’synêgoroi is duesimply to thelapse of time (13 years) orto Aischines’ regarding them as irrelevant to his present narrative.

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25. In 346/5 Timarchos Arizelou Sphettios (PA 13636 = LGPNII s.v. 36) wasinvolved in a graphê nomon mêepitêdeion theinai together with a number of other rhêtores (Aisch. ρ π ρ γ ρ ὰ ε ὶτ ῆ ο 1.34: τ ν ὸ ςπ ρ εδ ϕ ία υ λ ςτ ῶ ν ῶ μ ν ν ο ό ν Τ ρ ίμ α χ ο ςοὑτο σ ὶκ α ὶἕτερ ο ιτοιοῦ τ ο ι ῥ ή τ ο ρ ε ςσυνελθ ό ν τ ε μ ςγεγραμ έν ο ιεἰσ ὴ ὶμ ἐπ ή ιτ δ ε ν ιο α ν ι...). Wedonotknowwho εἦ waslegally responsible for theaction.

26. At some point before 343 Aristophon Azenieus (PA 2108 = LGPN II s.v. 19) prosecuted Philonikos (PA 14675 = LGPNII s.v. 3) ina public action, andaccording to Demo291) hereceived assistance fromatleast oneprosecution synêgoros, sthenes (Dem. 19.290– Aischines Atrometou Kothokides (PA354 = LGPN II s.v. 54). We have no information on thetype of action employed, norcanthecase bedated with precision. Dem. 19.290– 291 forms part of Demosthenes’attack directed against Euboulos, whois acting as Aischines’ defence synegoros. Euboulos iscriticized forhisinconsistency: henowproposes tosupport Aischines, whohadparticipated ina legal action that constituted anindirect attack onEu᾽ἔκριν ε νἈ ν ίκ ϕ ῶ Φ ν ιλ είν ό ν ικ ν κ ο α ο υτ ρισ ὶδ το ι᾽ἐκ ῶ νσ ο ὶπ επ ρ γ α boulos’policies (ἡ μ έν γ η ρ ω ό ε ν ι). This suggests that the action wasa graphê paranomôn against an honorκ α τ ific decree proposed byPhilonikos forEuboulos. It is clear from Dem. 19.291 that Aristophonwastheperson responsible forthetrial, andthat Aischines wasa supporting prosecuρ γ ει).8 ό η τ κ α γ υ tor(σ

27. Atsome point between 343 and340 Neaira wasprosecuted ina graphê xenias brought byTheomnestos Deiniou Athmoneus (PA6965 = LGPNII s.v. 22), whohadtaken legal responsibility fortheaction, while Apollodoros Pasionos Acharneus (PA 1411 = LGPNII 16). s.v. 68) probably acted as his synêgoros ([Dem.] 59.14– 28. In ca. 340 Epichares (PA5003 = LGPNII s.v. 24)9 brought anendeixis (Hansen [1976: 138] cat. no. 25) against Theokrines Hybades (PA6946 = LGPN II s.v. 1). Epichares, 137– whodelivered [Dem.] 58, lets on in [58].4 and[58].70 that he expects to be assisted by synêgoroi. The speaker is adamant in [58].1 that he has taken legal responsibility for the ), adding the interesting twist that his father, whohadbecome δ ειξ ιν ἔν ν ν ὴ α ιτ ῦ ο action (δ atimos through Theokrines’agency, haddrafted thetextofthewritandhanded itovertohis ο ι). ρμ ρ ά ή γ ψ α ρ α τ ῶ ςε ἰςτ ρτα ὁπ ῦ ν τ τ δ ειξ κ ν α α ὴ ε π ω ἔν ιν ἔδ π ε son([58].5: ... διό

8

9

Harris (1995: 155)discusses Demosthenes’allegation andsuggests thatthis waspureinvention onDemosthenes’part. Harris’reasons fordoubting Demosthenes’claim are, first, that AristophonandAischines were known tohave taken opposing sides over thepeace of Philokrates and over themerits of thestratêgos Chares and, second, thatAischines claims inhis speech against Timarchos that hehas never before brought a public action (1.1). Harris concedes that Aischines mayhaveexaggerated hislackof court experience, which is indeed possible. Butmore important, Aischines’ownclaim does notinfact contradict Demosthenes’allegation that hehadbeen ν π ο ,ὦ ὐ δ α π ν λ ιτ έ ώ π ο ν τ ετ ῶ ῶ active as a synêgoros. Aischines’phrasing is very specific: Ο ρα γ μ ψ α ή σ ὴ ν ... By using thephrase εν ά ς ο ιςλ ν ςο α ὔ ᾽ἐ π υ ϕ τ ύ θ ν εὐ ρα τ εγ ὔ ι, ο α ῖο ν η θ ε ρ ςἈ ν δ ἄ

ὴ η γ ν ρ γ ρ η ϕ α ό ψ α τ μ ά ρ εν α ‘brought a graphê’ ( γ ο ) rather than the broader term ‘prosecuted’(κ ς ), Aischines mayhave attempted to cover his back: what he claims is that he has never σ α ς instigated a public action against a fellow citizen; butthis does notrule outthathehadappeared ϕ εσ θ α ιand as a supporting speaker in other people’s trials (cf. the distinction between γρά inDem. 18.251.) ιν ε κ ιώ δ LGPN II 24 identifies Epichares as Epichares sonof Mikon of Cholleidai on the basis of SEG 37, a conventional identification that wasmade already by Kirchner. However, the 34.127.36– 59) concludes ona very sceptical note, andhis warning should discussion inDavies (1971: 57– beheeded.

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29. In336 or 335 Kephisodotos (LGPN II s.v. 13, noPAentry) wasprosecuted ina graphê paranomôn (Hansen [1974: 38] cat. no. 31), in which Lykourgos Lykophronos Boutades (PA 9251 = LGPN II s.v. 4) andPolyeuktos (Sostratou Sphettios?) (PA 11950 = LGPN II s.v. 49) addressed the court as katêgoroi (Lyk. fr. IX (Conomis), Polyeuktos fr. I. 1– 2 [Müller]). According to Hansen, Lykourgos spoke as synêgoros for Polyeuktos, but while the fragments together indicate that both participated as speakers, it is impossible to place the responsibility for theaction with anyoneof them. 30. In 336 Philippides (PA 14351 = LGPN IIs.v. 1) wasprosecuted ina graphê paranomôn, inwhich Hyp.4 wasdelivered ontheside of theprosecution. It hasbeenargued inChapter 2: 1 that the speaker was not the first to address the court, which indicates that he was delivering a supplementary speech. Wedo not know whowas legally responsible for the action.

31. In 333 an eisangelia (Hansen [1975: 106–107] was brought against Lykophron (PA 9255 = LGPNII s.v. 2) byAriston (PA2140 = LGPNII s.v. 13). Ariston received assistance fromseveral supporting prosecutors (Hyp. 2.19), oneof whomwasLykourgos Lykophronos XI [Conomis], Hyp. 2.3). It is clear from Boutades (PA9251 = LGPNII s.v. 4) (Lyk. frs. X– Hyp. 2 fr. IV col. 47 that Ariston’s name was on the eisangelia. However, in Hyp. 2.3 the plural is used inconnection ̣ inthe Assembly which hadpreceded thecourt ̣ withthedebate ̣ ). It cannot be ruled out that Lykourgos may ]α ] ἐδίδο[σ ν ν γ ελ ί[α γ τ νεἰσα ετ ὴ hearing (ὅ have added an additional accusation to the charges made by Ariston in his eisangelia proposal (for anexample of a rider to a decree relating to aneisangelia see Hansen [1975: 71] cat. no. 6).10

32. In the second half of the 330s Phanostratos (PA 14097 = LGPN II s.v. 7) prosecuted Aristogeiton Kydimachou (PA 1775 = LGPN II s.v. 4) in a graphê paranomôn (hyp. Dem. 25,2; Hansen [1974: 37]catno.29). Dein. 2.12 suggests thatthecase involved several other ρ γ ό ω ). If thehypothesis to Dem.25 canbetrusted, ν η prosecutors (ἐ π ρ θ ὰ κ τ ύ ν τ α ῶ εσ θ α επ one of these katêgoroi was Demosthenes Demosthenous Paianieus (PA 3597 = LGPN II s.v. 37), andthe text maybe taken to indicate that Phanostratos wasthe main prosecutor (γ ρ α ψ μ ά εν ο μ ν ω Φ ν α ρ ρ ό ν τ ο α ςπ α ό σ ...). α τ ς 33. In 332/1 Hierokles Phanostratou (PA7481 = LGPNII s.v. 10) wasarrested byanapagôgê 140] cat. no. 30). According to hyp. Dem. 25, 1, Pythto theprytaneis (Hansen [1976: 139– angelos (PA12335 = LGPNII s.v. 1)andSkaphon (PA 12724 = LGPNII s.v. 1)carried out ̣ ̣ ̣

ιἀ π έσ τ ειλ ἰρ ά α νγ ψ ν α α νκ ὶτ ὰ ὰ ἱ> ο τ ]ε ο ία ςα ὶγ [γ γ 10 Hyp. 2.3: ἐμ α εεἰ̣ σ ντ ε ἰκ ε[ῖ]ο ̣ ςτή ̣ λ ̣ ρ