EN RELACIÓN AL ACCESO DEL CONOCIMIENTO

The presentation of judicial activity in Against Callimachus exercised the rhetorical talents of the young Isocrates to the full. He wrote the speech for an anonymous speaker in his prosecution of Callimachus by paragraphe. The nature of a p aragraph e suit, where the defendant in the previous judicial dispute becomes the

current prosecutor, contains the potential for both parties in the dispute to be depicted

Quoted by Edwards and Usher (1985) 271. 66 Lys.25.19,25-7.

67 See Chapter 7.2. 68 See Chapter 7.4. 69 Lys.25.28-35.

as initiating litigation, in short to be portrayed as litigious. Consequently the Against

C allim achus contains substantial material on the presentation of judicial activity,

material which is incidental to the legal argument of the paragraphe suit. This can be illustrated by firstly looking at the structure of the speech and secondly by considering the nature of the conflict between the speaker and Callimachus.

The structure o f the Against Callimachus can be broken down into sections as follows:

§§1-3 Introduction: the novel procedure of paragraphe and its applicability to this dispute.

§4 Speaker’s statement o f intent: Legal Arguments 1-3 which he will produce against Callimachus.

§§5-12 The history of the dispute between the speaker and Callimachus up to the present case, including:

§8 Legal Argument 2: Callimachus’ original charges against the speaker are false (witnesses produced);

§10-12 Legal Argument 3: The dispute has previously been settled by arbitration and so can not be reopened

(witnesses produced).

§§13-15 Callimachus’ tactics: to disallow the previous arbitration agreement between the two parties, including:

Legal Argument 3: The dispute has previously been settled by arbitration and so can not be reopened.

§§16-18 The speaker's motivation: the innocent man.

§§ 19-34 Legal Argument 1: the speaker is protected by Amnesty (agreements and oaths of Amnesty are produced).

§§35-41 Callimachus’ tactics: to focus on the hardships he has suffered and could again if he loses the case.

§§42-47 Legal Argument 1: will the Athenians uphold their commitment to the Amnesty?

§§47-57 A character assassination o f Callimachus, including his sycophantic reputation

(witnesses produced).

§§58-65 The speaker’s services to the polis.

§§66-68 Conclusion.

As is suggested by the above structure, although much of the speech is devoted to the three legal arguments, there are substantial sections, in italics, which have no direct bearing on these arguments. The italicised sections occupy nearly half o f the speech and, moreover, the speaker concludes with this material, allowing its content to linger

4: Judicial Activity in the Attic Orators 72

in the jurors’ minds as he walks away from the bemaP^ This incidental material offers interesting insights into the presentation o f Judicial activity. But it is essential to comprehend the details of the case and the legal arguments advanced before this material can be examined (see Chapter 4.3).

The conflict between the two men began in 403, during the rule of the Ten, who were briefly in power after the fall of the Thirty and before the restoration of the d e m o c r a c y .T h e speaker, a friend of Patrocles ( o v t o ç | iOL è ï ï L T r i ô é L O u ) the Archon Basileus in 404/3, witnessed a dispute between the latter and Callimachus over a sum of money. Patrocles denounced Callimachus by phasis before the boule, claiming that the sum involved had become state property and the boule found in Patrocles’ f a v o u r .

The sum involved could have been as much as 5,000 drachmae, and therefore Patrocles may have received 2,500 drachmae as a result o f his successful prosecution.^^ The substantial sums involved explains the persistent and protracted nature o f the subsequent legal conflict between Callimachus and the party of P a tr o c le s.A fte r the restoration of the democracy, Callimachus took the opportunity to move against the individuals who he felt were responsible for his loss, initially Patrocles, then one Lysimachus and finally the speaker.^^ Callimachus initially suggested the speaker was a co-conspirator, but then moved to claim that the speaker was responsible for all his problems, an accusation which he began to circulate widely.^^ The speaker was finally persuaded by some of Callimachus’ friends to settle out of court, which he proceeded to do, but with the safeguard that both parties submitted the settlement to private arbitration before Nicomachus of Bate.'^'^ For a while, Callimachus was content to let the dispute drop, but then, with the assistance of one Xenotimus, he brought a dike blabes against the speaker, fixing the penalty against the speaker by timesis at 10,000

The italicised sections amount to 28§§ out of a total of 68§§, 41% of the speech.

See Isoc.18.5 and on the Ten, see A//i.Po/38.1, Xen.//e//.2.4.23-4, D.S. 14.33.5. There are occasions when the speaker is deliberately vague about whether the clash between Calhmachus and Patrocles took place under the oligarchy (see §35) or the democracy (see §17).

Isoc. 18.5-6. On phasis, see p. 16n.27.

Callimachus brought a dike blabes against the speaker for the sum of 10,000 drachmae (Isoc. 18.11). In

a dike blabes, the penalty is fixed by timesis at twice that of the damage done (see Dem.21.43 and

MacDowell (1978) 149-3, Todd (1993) 279-82), so Calhmachus probably lost some 5,000 drachmae in the initial phasis. In cases proceeding by phasis, a successful prosecutor gained half the sum seized (see p. 16), hence Patrocles would have gained some 2,500 drachmae.

The sum of 5,000 drachmae would almost be enough to put a man in the leisured classes, see APF xx- xxiv.

See Isoc. 18.7. Calhmachus brought a dike against Patrocles and extracted 1,000 drachmae from him. Secondly, he brought a ‘sycophantic’ prosecution against one Lysimachus, and obtained 200 drachmae from him. Presumably CaUimachus was able to associate Lysimachus with his original loss.

See Isoc. 18.7, 9. When he moved against the speaker, it appears Callimachus subjected him to a period of widely circulated accusations, without bringing a specific charge, with the aim of extracting an out of court settlement from him.

drachmae.^* But at the anakrisis before the arche, the speaker produced a witness to the arbitration, using the procedure of diamarturiaP^ Consequently Callimachus either had to prosecute the witness using a dike pseudomarturion or drop the dike blabes against the speaker.^® Callimachus initially opted for the later, but subsequently reintroduced

the dike blabes against the speaker and persuaded the arche to allow the case to proceed

to the jury court. So the speaker faced a court appearance as the defendant in a dike

b la b e s with the risk of a 10,000 drachmae fine which he claimed would have

impoverished him.^i At this point the speaker brought the current paragraphe against Callimachus, transforming Callimachus into the defendant and him self into the p r o s e c u t o r. ^ 2The present case can probably be dated to 400.^^

In §4, the speaker outlines the legal arguments he will advance to demonstrate that Callimachus’ dike blabes is illegal:

’AttoÔ6l^co ôè K a \ M | i a y o v où p o v o v Tiapà t ô ç cjiJvOnKaç ÔLKa{ô|ievov à.Xkb. KQL TrepL l ù v èyKÀnpaTwv t i j e u ô ô p e v o v , kql n p o a é T i ô i a i T a v n p î v YeYevniiévTiv n e p i q ù t ü v .

I will prove that Callimachus not only brought a dike against the agreements (i.e. the Amnesty), but he also spoke falsely about the written complaints and moreover an arbitration has taken place between us regarding this issue.^

As the outline of the speech above demonstrates, the speaker devotes just over half his time to the three arguments (Legal Arguments 1-3 in the structure above). Firstly, in §§ 19-34 the speaker argues that Callimachus’ dike blabes contravenes the Amnesty and thus allows him to bring the current paragraphe. Under the terms of the Amnesty, which he cites at §19, public prosecutions which had been settled before the restoration of the democracy could not be reopened.^^ So even if the speaker was responsible for Callimachus’ loss, Callimachus could not bring a dike blabes against him because the initial phasis predates the restoration of the democracy. This first argument is supported

Isoc. 18.11.

The outcome of a private arbitration was binding on both parties (Todd (1993) 123-5), therefore legally Callimachus was not allowed to reopen the case. The procedure of diamarturia allowed the speaker to produce a witness to the arbitration before the archeand so demonstrate that Callimachus’

dike blabeswas illegal (see Harrison (1968-71) 2.124-5, Todd (1993) 135-6).

See Isoc. 18.12 and Harrison (1968-71) 2.192-7, Todd ibid.and (1990b) 36-8 on diamarturia dtnd dike pseudomarturion.

See Isoc. 18.3, 64 for his claims that Callimachus’ dike blabesthreatened his remaining property.

On paragrapheand its introduction, see Chapter 7.3.i-ii.

Mathieu and Brémond (1928-62) 2.15, MacDowell (1971b) 269. 84 Isoc. 18.4.

85 On the Amnesty, see Chapter 7.3.i. The speaker cites the Amnesty at §19 and then adds his own commentary, that: ‘but does not the agreements expressly acquit the ones who brought endexisor phasis

or have done any of other such things {hW ' où loou lièv auvOriKcov 8iappf|&riv acpieLacov loùç €y8e(^ai/iaç f| (pfivavTaç n loov akkwv ti tcoi/ ToioijTwy npa^aviag (§20)).’ In other words he makes sure that phasisis listed as one of the public prosecutions which can not be reopened. A similar sentiment is expressed in the bouleutic oath, see Andoc.1.91.

4: Judicial Activity in the Attic Orators 74

by ponderous rhetoric on the solemnity of agreements in Greece, the restraint exhibited by Thrasybulus and Anytus, the worthy renown that the Amnesty has brought to Athens (articulated in sentiments reminiscent of the Funeral Orations) and the blessings of h o m o n o ia in comparison to the horrors o f stasis.^^ Secondly, he argues that Callimachus has lied in the charges made in the dike blabes, as he consistently maintains that it was Patrocles and not himself who was responsible for denouncing Callimachus at the initial phasis and at §8 produces three sets o f witnesses to support this claim. Thirdly, he stresses that the arbitration before Nicomachus was binding and so Callimachus is acting illegally by reopening the case. It appears Callimachus intended to subvert this objection by arguing that the arbitration never took place, arguments which the speaker counters both by supposition and by producing witnesses to the arbitration.^

The speaker has painted a triptych of detailed legal argument to demonstrate the illegality of Callimachus’ dike blabes. One of panels of the triptych represents the Amnesty and the protection afforded under it by using the novel procedure of

paragraphe. The remaining two panels of the triptych represent the falsity and illegality

of Callimachus’ dike blabes in its own right, regardless of the Amnesty: in other words the arguments that the speaker would have used in his defence in the dike blabes. As was often the case in paragraphe suits, litigants advanced arguments using material specific to the actual paragraphe suit and to the preceding case that had given rise to the paragraph e suit.^^ In eaeh of the three panels, the speaker has adopted a duo- chromatic scheme: factual arguments, supported by the production of witnesses of documents and secondly arguments from supposition. But the triptych o f legal argument represents a little more than half the content of the speech. The remaining material, which is incidental to the legal argumentation, is used to paint two portraits, that o f the speaker as the judicial reticent and that o f Callimachus as the venal sycophant. The portraits are rendered almost totally in monochrome, evidence is offered in the form of inference and innuendo, with little supporting factual information. Given the structure of the speech (see above), these two portraits are obviously essential to the speaker’s presentation of his case. I will firstly examine the two portraits in more detail and secondly consider why he painted them.

The speaker, as the defendant in the dike blabes which underlies the current suit, is desirous to impress his innocence upon the jurors.^^ As has been noted above, these protestations are supported by witnesses, who testify that the speaker had no connection

86 See Isoc. 18.19-34,42-7,66-8. 87 Isoc. 18.10-13.

88 Isager and Hansen (1975) 130-1, Todd (1993) 138-9. 89 Isoc. 18.4,9, 16, 19,20,22,40-1,57,67.

with Callimachus’ initial loss. Consequently he claims that his suit is just ( Ô l k q l o ç ) and appeals to the jurors to vote with justice in his favour.^ These statements of innocence are hardly surprising from a man facing a 10,000 drachmae fine. But the speaker’s portrayal of his judicial reticence transcends the commonplace to that o f elevated moral character. The speaker states he resisted all opportunities for wrongdoing under the Thirty, even though the Thirty pressurised many to behave in this way.^^ The speaker then argues by inference that it is highly improbable he should have harmed Callimachus after the restoration of the democracy, having resisted all opportunities for wrongdoing under the T h i r t y . ^ ^ Incidentally, this contention is almost certainly false, as

it seems that Callimachus originally lost his sum of money before the restoration.^^ Concluding, the speaker claims he is the kind of man who resisted opportunities to seek vengeance on his enemies, so would not harm a man with whom he never had a contract.^"^ The speaker presents himself as an individual of elevated moral integrity: he renounces the legitimate moral activity of harming his enemies even when he was presented with ample opportunity, consequently the thought of harming a complete stranger, with whom he did not even have a contract, is preposterous.^^ As in Lysias’ speech Defence on a Charge o f Subverting the Democracy, it is the nature and distance of the relationship between two individuals which determine the perceived legitimacy of engaging in judicial activity. The speaker buttresses the presentation of his moral character in the concluding section of his speech by reminding the jurors of his trierarchic services to the polls and the resulting crown that was awarded to him.^^ The speaker emerges as the classic idiotes, a man who is not only innocent of the charge that he has been arraigned on, but one who would not even harm his enemies and who was ‘responsible for many good things’ for the city.^^

^ For the justice of his case, see Isoc. 18.20,37; for appeals for the jurors to vote justly, see §§ 16, 26, 3 4 ,3 5 ,6 5 ,6 7 ,4 2 ,6 8 .

91 Isoc. 18.16. 92 Isoc. 18.18.