sullivan - 2002 - 'second' thoughts on aiskhines 3252

8/12/2019 Sullivan - 2002 - 'Second' Thoughts on Aiskhines 3252

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Greece & Rome, Vol. 49, No. 1, April 2002

'SECOND' THOUGHTS ON AISKHINES 3.2521By JANET SULLIVAN

Lykourgos against Leokrateswas a trial for treason on the grounds thatLeokrates fled Athens as news of Philip's victory at Khaironeia in 338B.C. reached the city. At that time, the Assembly passed a hasty decreedefining flight as treason, but the trial only took place eight years laterwhen Leokrates finally returned to Athens. The only reference in thesources to the outcome of the case is Aiskhines 3.252:

ErEpoS 8' EK7rATEVoa 18oT7r7S EIS 'Podov, onTt rv qdol3ov advdvpuC)s ?VEyKE, -rrpWoTvroT0lcrT'yyEhyeA7KGaLtaLt at /r7iot at-rcT) eyevovro' El 6e Gl[a rjos o /JTETE7EOEV, vTTEpoWptLT'av.

Another private individual, terrified to the point of cowardice, sailed to Rhodes and wasprosecuted only the other day. The votes turned out to be equal but if one vote had beenchanged, he would have been cast out.

The implication is that the defendant was acquitted on the legendaryprecedent of Athene's acquittal of Orestes,2 and scholars have un-animously concluded that there is no doubt that the jury's vote wastied and that Leokrates escaped execution by the one casting vote. Theissue may not, however, be so clear cut and unambiguous.Lykourgos' prosecution of Leokrates took the form of an eisangelia othe dikasteria.By 330 B.C., all eisangeliaiwere heard eitherby the courtsor the Boule: the latter generally heard cases of impropriety or mis-conduct of officials, and its jurisdictionwas limited to a maximum fineof 500 drachmas;the dikasteriaheard cases of what we would recognizeas high crimes and misdemeanours (hence the usual translation ofeisangelia as impeachment).3 It is unclear when exactly the Ekklesiastopped trying eisangeliaiitself, but the last known cases are prosecu-tions of Kallisthenes and Ergophilos in 362.4Eisangeliaiheard by the dikasteria nvolved bringing a case before the1 A version of this paper was presented at the Classical Association Conference in Manchester2001.2 Aiskh. Eu.752f.3 [Arist.] Ath. 45.2 with P. J. Rhodes, A Commentaryon the AristotelianAthenaion Politeia(Oxford, 1993); P. J. Rhodes, The Athenian Boule (Oxford, 1972), 156, 164; M. H. Hansen,Eisangelia(Odense, 1975), 22-8.4 Hansen 1975, 93 f., with references cited.


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'SECOND' THOUGHTS ON AISKHINES 3.252Ekklesia.If it accepted the impeachment, the assembly ordered the Bouleto draw up a probouleuma,perhaps translatablehere as a formal charge,which was discussed and ratified at the next Ekklesia.The case was thenreferred to the courts. In the fifth century and the first half of the fourth,penalties did not have to be fixed in advance;the punishment was eitherproposed in the normalway with the jurorsvoting twice, an agontimetos(the process familiar from Sokrates' trial), or a penalty was pre-set,usually at death or death with additional penalties, and became auto-matic in the event of a guilty verdict, an agonatimetos.5The position inthe second half of the fourth century is not, at first glance, so clear.Lipsius argued that from the middle of the fourth century, the pro-cedure was reformed with eisangeliaibecoming wholly agonesatimetoi,carryingan automatic, pre-set death penalty, along with confiscation ofproperty and loss of right to burial in Attika.6Twenty-eight eisangeliaiare recordedbetween the trial of Timotheos in356 B.C., in which the general was fined 100 talents, and the year 322B.C., and these cases provide a clear window of opportunity for thereform for which Lipsius argued.7Hansen has looked in detail at thesetwenty-eight cases: in nine of them the result is unknown, and four othereisangeliaiwere withdrawnpriorto trial;eight more resulted in acquittal,one in aguiltyverdict (thoughthe sentence isunknown); and five more areknown to have carried the death penalty. That is a total of twenty seven.The one remaining case is that of Lykourgos against Menesaikhmos, acase obviously prosecuted before 325, since that was the year in whichLykourgos died. We know that Lykourgos got his guilty verdict but itabsolutely could not have resulted in the death penalty, becauseMenesaikhmos succeeded Lykourgos as ho epi tei dioikesei, looselytranslatable as Chancellor of the Exchequer, and he went on toprosecute Lykourgos' sons after their father died. Menesaikhmosmust, therefore, only have been fined and this one case proves Lipsiuswrong. As Hansen concludes, all the evidence which Lipsius uses toargue for a reform can equally be explained on the assumption thateisangeliairemained agonestimetoidown to 322 B.C.8

5 In one case, the penaltywas death with confiscation of allproperty,demolition of house, denialof burial in Attika,and hereditaryatimia:see [Plut].Mor. 833D-834B. See too Aiskhin.3.224; D. S.13.102; [Plat]. Ax. 368E; Xen. Hell. 1.7.34f.; Hansen 1975, 33ff., 84ff., 103, 113ff.; W. R.Connor, 'The Razing of the House in Greek Society', TAPA 115 (1985), 79-102.6 J. H. Lipsius, Das attischeRechtund RechtsverfahrenLeipzig, 1905), i. 192ff.7 Timotheos' fine: Nepos, Timotheos3.5, Iphikrates3.3; Isok. 15.129; Dein. 1.14, 3.17; Plut.Mor. 605F.8 Hansen 1975, 33-6.

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'SECOND' THOUGHTS ON AISKHINES 3.252Lykourgos' prosecution of Leokrates in 330 would, therefore, havebeen subject to either a variable penalty or a punishment pre-set in a

probouleuma,though this would not necessarily have been the deathpenalty. There is at leastone eisangelia rom the second half of the fourthcentury where the penalty was pre-set by the Boule and ratified by theEkklesia:Demosthenes successfully proposed a decree which includedthe provision that, if a certain Anaxinos was found guilty, the deathpenalty was to be imposed.9It is probably fair to argue that the Ekklesiamight have been inclinedto accept any penalty recommended in a probouleuma ssued by theBoule. However, such a clause was optional, and throughout the courseof the fourth century, when the powers of the courts had been increased,any decision concerning an appropriatepenalty would be much morelikely to be left to the dikasteria,who would decide between penaltyproposals from prosecution and defence, with a second vote following aguilty verdict. Hansen catalogues several fifth-century eisangeliaiwherethe penalty was pre-set, but in the fourth century, there was timesis,asmentioned above, in Timotheos' eisangelia in 356 B.C., and in theeisangeliaof Kephisodotos in 359 B.C., as well, we know that the matterwas left to the dikasteriabecause Demosthenes tells us that the jurorshad to take a second vote to determine the sentence.10To returnto Lykourgos against Leokrates,the unanimous conclusionthat the defendant was acquitted as a result of a tied vote was reinforcedby Hansen's claim that Aiskhines 3.252 proves that there was only onevote takenby the jury. 1However, a penalty may not have been specifiedin this eisangelia and if it had not been, Aiskhines could, in fact, bereferring to the second vote on whether the death penalty should beapplied to a man who had already been found guilty, rather than to afirst ballot which resulted in acquittalby one vote, and it is this scenariothat is worth investigating in some detail.Aiskhineshad, in fact, every reason only to refer to a second vote; he isattempting to create the greatest possible distinction between thepunishment of the crime committed by Leokrates and the proposedreward for the crimes he claims were committed by Demosthenes. Hewould not, anyway, need to refer to a firstvote which resulted in a guiltyverdict since this would be common, and recent, knowledge because thecases were separated by only a few weeks at most. If we look at the way9 Aiskhin. 3.224; see too Hansen 1975, 103.10 Kephisodotos: Aiskhin. 3.52; Dem. 23.167; Hansen 1975, 98f.11 Hansen 1975, 34f.

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'SECOND' THOUGHTS ON AISKHINES 3.252he refers to Leokrates, the tenor of what he is saying does not indicatethat Leokrates was found Not Guilty, even by a single vote. For whilstAiskhines is minimizing the crime Leokrates has committed, a crimejudged seriously enough for the Ekklesia o ratifyan eisangeliaeight yearsafterKhaironeia,his rhetoricimplies that Leokrates is someone who hasbeen punished for committing an offence which Demosthenes hasexceeded by far, and for which it is proposed he should be rewarded.On one particular occasion, Aiskhines uses the thrust that Demos-thenes is a coward and a deserter:Imagine for me for a little while that you are not in court, but in the theatreand envisagethe herald coming forward and getting ready to make the proclamation under thedecree. Consider whether you believe that the families of the dead will weep more overthe tragedies and the heroes' sufferingswhich will then be performed on stage than overthe senselessness of the city. For what Greek would not grieve, having been brought upin freedom, as he sat in the theatre and remembered this, if nothing else, that once, onthis very day when, as now, the tragedieswere about to be performed, when the city hadbetter laws and better leaders, the herald came forward and placed before you orphanswhose fathers had been killed in the war, young men kitted out in full armour, and hepronounced that beautiful proclamation which is so conducive to courage, that theseyoung men, whose fathers were brave and died in war, the state has nurtured tomanhood and now, in full battle gear, they go their own way with our best wishes andtake the seats of honour in the front row. That was the proclamationthen, but not now,for having presented the man responsible for their orphanhood, what can he announce?What can he say?For if he goes through the exact ordinances of the decree, the shame ofthe truthwill not be silent but will voice its opposition to the herald'svoice, that this man,if indeed he is a man, the Athenian demos has crowned for excellence - the vilest of all,and for nobility - a complete coward and deserter of his post.12

Aiskhines is setting up a vivid comparison between the city's heroesand cowards. This line of attack makes a mockery of using as anexample a man who had been acquitted of cowardice. It is perhapseven arguable that Aiskhines is actually trying to mimic Lykourgos'successful prosecution of a few weeks earlier. The speeches have asimilaremphasis on cowardice and desertion,both hark back to the past,and Aiskhines uses decrees, poetry, oaths and so on, in a style that is notobviously his own if we consider his two other extant speeches.13Aiskhines' contrastbetween Leokrates' case and Demosthenes' crownis a crucial one, because it would make little sense if Leokrateshad beenfound Not Guilty. Moreover, Aiskhines is arguing in the context of theerosion of democracy:

12 Aiskhin. 3.153-5.13 See too D. S. Allen, The Worldof Prometheus Princeton, 2000), 159.

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'SECOND' THOUGHTS ON AISKHINES 3.252You should be on guard against those who call themselves public guardians andphilanthropists but who are untrustworthy in character. For goodwill and the name ofdemocracy arein the public domain, but those who are the first to escape to them in speechare those who are furthest away from them in deed. When you get an orator, then, whodesires crowns and proclamations amongst the Greeks, tell him to bring his argumentback,like the law requiresone to give securityforproperty,to aworthylife and atemperatenature. But if he cannot testifyto these assets, do not confirm the praiseforhim, but have athought for the democracy which is already slipping away from you. Does it not seemdreadful to you that the Boule and the people areignored but the letters and ambassadorscome to privatehouses, not from justanyone either,but from the foremost people in Asiaand Europe? And those things which carrythe death penalty, certain men do not denydoing them, but confess to the people and comparetheir lettersamongst themselves. Someof them tellyou to look at their faces as the guardiansof the democracy and othersdemandgifts forbeing saviours of the city. But the people, discouragedby whathas happened, as ifthe worse for old age or convicted of madness, retainonly the name of democracy whilstyielding the workings to others. And so you leave the assemblies without having debatedanything, but as if from a picnic where you were given a share of the leftovers.14Private citizens are held to account for their misdeeds, however trivial,whilst politicians, rhetorsand the like, do as they please and even seek tobe rewardedfor things which should carry an automatic death penalty.Even foreign policy, Aiskhines claims, is done with these big-wigsprivately rather than with the assembly. Thus, how can you punishprivate individuals for minor offences but crown politicians who do farworse? That this happened frequently is, in fact, bitterly lamented byHypereides too, who expressly says that ordinarypeople face executionor exile for a simple mistake whereas politicians who commit greatcrimes get off scot-free.15In the context both of his speech and of our investigation, Aiskhines3.252 can only mean that Leokrates would have been executed and castout without burial fLykourgos' penaltyhadbeen accepted but that, in theevent, Leokrates was given an alternativepunishment, perhaps exile or alarge fine as proposed by the defence. Indeed, the other exampleAiskhines uses in 3.252 of behaviourwhich contrasts with Demosthenes'own is of a citizen who was only tryingto sail to Samos and was executedby the Areopagos thatveryday. Itwould seem to underminehis argumentprofoundly if his other example, Leokrates,had received no punishmentwhatsoever, and especially if he was actuallyfound Not Guilty.A hung jury, however, is remarkable especially considering thenumber of jurorswho could be involved in public trials, but there is aprecedent for a guilty verdict being followed by an extremely close

14 Aiskhin. 3.248-51. 15 Hyp. Dem. 52.

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'SECOND' THOUGHTS ON AISKHINES 3.252the precedent of Lykourgos' conviction of the Areopagite Autolykos in338 for secreting his wife and sons out of Athens, not even for leavingthe city personally. Moreover, since Leokrates' defence was based onleaving to trade in corn with cities other than Athens, an illegal activitywhich carried the death penalty, Lykourgos would have been extremelyunlikely to have exchanged the opportunity to prosecute on concretegrounds for a specious eisangeliaunless he was confident of success.The proceduralargumentsoutlined above show, at the very least, thatthe case was not necessarily an agon atimetos,and that there may havebeen provision for at least one further vote on the penalty. On the basisof legal, procedural, and rhetoricalarguments,moreover, it is possible toput together a strong argumentthat the case was an agontimetosand thatLykourgos gained a conviction, failing only on the second vote on thepenalty and even then, by the hairsbreadthof Aiskhines'hung jury.Thetraditionalunderstandingof Aiskhines 3.252, therefore, cannot continueto be considered safe.

NOTES ON CONTRIBUTORSJANET SULLIVAN: Research Student at Leeds University.ANDREW CHUGG: CharteredEngineer working for MBDA, Bristol.G. LIVELEY: Lecturer in Classics at the University of Bristol.SORCHA CAREY: British Academy Post-doctoral Fellow in the

Faculty of Classics, Cambridge.SUSANNA MORTON BRAUND: Professor of Classics at YaleUniversity.WENDY RASCHKE: Professor of Classics at the University ofCalifornia, Riverside.I. C. MANTLE: Associate Lecturer in Classics at the Open Universityin Scotland and Consultant for the Classics Department, the OpenUniversity.

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sullivan - 2002 - 'second' thoughts on aiskhines 3252

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