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ΕΙΣΑΓΓΕΛΙΑ in Athens1

Published online by Cambridge University Press:  23 December 2013

P. J. Rhodes
P. J. Rhodes
Affiliation:
University of Durham
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Extract

Εἰσαγγελία, ‘impeachment’, has regularly had a few pages devoted to it in books on Athenian law or the Athenian constitution. Recently a book has been published on the subject, one of a series on Athenian legal topics by M. H. Hansen: in it he assembles the evidence for 144 certain, probable or possible instances of εἰσαγγελία between 500 and 323 B.C., and his analysis leads him to disagree with much that has been said hitherto. However, I am not persuaded that all his own conclusions are correct.

One note of warning should be sounded at the beginning, εἰσαγγέλλειν, like γράφεσθαι, φαίνειν, ἐνδεικνύναι and other verbs used of initiating legal proceedings, is a word within whose normal range of meaning one or more technical senses developed. The existence of a technical sense did not, of course, put an end to the non-technical use of the word, and we must always be alert to the possibility that even in a legal context a word may have been used not in its technical legal sense, or that in part or all of the period with which we are concerned a set of technical terms, each with its own distinct meaning, may not have fully crystallised: for instance, unless the word is corrupt, Lys. x 1 uses εἰσήγγελλε of a prosecution which was not an εἰσαγγελία in any technical sense of the word (Gernet and Bizos therefore emend to ἐπήγγελλε); within a single speech, Isae. xi, a charge of maltreating an orphan is referred to both as an εἰσαγγελία (§§6, 15) and as a γραφή (§§28, 31, 32, 35).

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 99 , November 1979 , pp. 103 - 114
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1979

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References

2 Eisangelia: The Sovereignty of the People's Court in Athens in the Fourth Century B.C. and the Impeachment of Generals and Politicians (Odense U. Class. Stud, vi: Odense 1975). I cite by author's name this book and also the following: Bonner, R.J. & Smith, G., The Administration of Justice from Homer to Aristotle, i (Chicago 1930)Google Scholar; Harrison, A. R. W., The Law of Athens, ii (Oxford 1971)Google Scholar; Hignett, C., A History of the Athenian Constitution to the End of the Fifth Century B.C. (Oxford 1952)Google Scholar; Lipsius, J. H., Das attische Recht und Rechtsverfahren (Leipzig 1905–1915)Google Scholar; Rhodes, P. J., The Athenian Boule (Oxford 1972)Google Scholar.

3 Untersuchungen zur Geschichte des athenischen Strafrechts (Graezistische Abhandlungen iv: Cologne, & Graz, 1968) 73–4Google Scholar.

4 One technical use of ϵίσαγγέλλϵιν was for accusations against the διαιτηταί (Ath. Pol. 53.6; Harp., Suid. [EI 222] ϵίσαγγϵλία, quoted p. 106 below): the διαιτηταί were not instituted until 399 (MacDowell, D. M., RIDA 3 xviii [1971] 269–73Google Scholar); but it was not until later in the fourth century, perhaps about the 370s, that written denunciations were required (Calhoun, G. M., TAPA 1 [1919] 177–93Google Scholar. arguing for 378/7).

5 Hansen, shows more awareness of this danger in his Apagoge, Endeixis and Ephegesis … (Odense U. Class. Stud. viii: Odense 1976) 28Google Scholar, 47, than in his Eisangelia.

6 For the smooth breathing see Wade-Gery, H. T., BSA xxxvii (1936/1937) 265Google Scholar n. 3 = Essays in Greek History (Oxford 1968) 173 n. 4, Dover on Ar. Nub. 863, MacDowell, on Ar. Vesp. 195Google Scholar. But the aspirate is normal in modern works, and I retain it when I transliterate.

7 For the arguments see Ruschenbusch, , Σόλωνος νόμοι (Historia Einzels, ix 1966) 1–14Google Scholar, Andrewes, A., Φόρος: Tribute to B. D. Meriti (Locust Valley 1974) 21–8Google Scholar.

8 Hignett 90.

9 Comparison with the law of 337/6 (SEG xii 87.7) suggests that we should delete τυραννϵῖν rather than έπὶ τυραννίδι from the papyrus' text: cf. Conomis, N. C., Ὲλληνικά xvi (1958–1959) 10Google Scholar n. 3, Hansen, , Apagoge, Endeixis and Ephegesis (n. 5) 77Google Scholar n. 17.

10 E.g. Hdt. i 125.2, v 29.2, 79.2, vii 134.2; SIG 3 56 (= ML 42 B). 44, 594.2, 715.1.

11 E.g. Wade-Gery, op. cit. (n. 6) 265 = 173–4; Hignett 97, 216.

12 E.g. Rhodes 204–5.

13 Cf. Rhodes 199–201; Hansen does not discuss the trial of Phrynichus; he discusses the others on p. 19 and as cases 1–5 in his catalogue (69–71).

14 On εὔθυναι leading to an eisangeltic form of trial cf. below p. 110.

15 E.g. Hignett 154–5.

16 E.g. Wilamowitz, , Aristoteles und Athen (Berlin 1893) i 114–15Google Scholar.

17 Cf. Rhodes 17–19.

18 E.g. Hignett 74, 92, 98–9, 150–1.

19 For Isae. xi cf. above p. 103.

20 I agree with Hansen on this extension of the concept of magistrate (cf. Piérart, M., Ant. Class, xl [1971] 550–1Google Scholar, Rhodes 147); so as not to clutter the argument, I shall write simply of magistrates.

21 Cf. below pp. 107–8.

22 Cf. below, n. 27.

23 I cite as a few of the most straightforward examples [Dem.] xliii 71, xlvi 26; ML 46.31–41 cf. 41–3, IG ii2 1631.385–401. The νόμος εἰσαγγελτικός as quoted by Hyp. iv 7–8 begins ἐάν τις … (Hansen, following the enumeration of the Teubner text, cites this speech as iii).

24 Cf. Rhodes 169–71, where I was unnecessarily reluctant to recognise the use of ϵίσαγγϵλία for charges of this kind as a technical use of the word.

25 Cf. Hansen 20.

26 Cf. below p. 111 with n. 73, p. 112.

27 For the organisation of Athens' laws see the law ap. Dem. xxiv 20, where the four categories are βουλευτικοί, κοινοί, τοῖς ἐννέα ἄρχουσιν, τῶν ἄλλων ἀρχῶν. If, as I suspect, the organisation of the second part of Ath. Pol. is based on the organisation of the laws, that will confirm that laws concerning the ecclesia were among the βουλευτικοί.

28 Cf. Rhodes 162–4, Hansen 12–20.

29 Most accessible as Philochorus, 328 F 199.

30 In Rhodes 163, clause iv should be grouped with clause ii.

31 Notably Hager, H., JPh iv (1872) 74–112Google Scholar, Thalheim, T., Hermes xxxvii (1902) 339–52Google Scholar.

32 Cf. Lex. Rhet. Cant, ϵίσαγγϵλία, schol. Plat. Rep. viii 565 c, Lex. Seg. 244.14 Bekker, Zon. ϵίσαγγϵλία, Suid. ϵίσαγγϵλία EI 221): texts assembled by Hansen 16 n.15.

33 Rhodes 162–4, cf. Bonner and Smith 294–5.

34 E.g. Lipsius 194 n. 53.

35 E.g. Harrison 54–5.

36 Prosecutors might indeed go to great lengths to bring their charge within the scope of the specific clauses of the law. Lycophron in 333 was accused of attempting to overthrow the democracy by breaking the law of the democracy which forbade adultery with an Athenian woman: Hyp. i 12–15 (Hansen's case 119; Hansen, following the Teubner text, cites this speech as ii). But this stretching of the law does not show that there cannot have been an open clause: here as in iv Hyperides argues not that there is no law relevant to the misdeed of which the defendant is accused but that there is a law which prescribes a procedure other than ϵίσαγγϵλία.

37 Cf. Harrison loc. cit.

38 Hansen, assembles and discusses the evidence in his catalogue of ϵίσαγγέλίαι, pp. 69–120Google Scholar. I shall give the number of each case in his catalogue, and cite only the evidence most relevant to this discussion.

39 Cf. below p. 111.

40 E.g. case 144: [Dem.] xlvii 42–3. Obviously a fine of 500 drachmae would not be a sufficient penalty for a man fully guilty of a major public offence, and I do not believe it was intended that the boule should impose penalties within its competence on such men: cf. below p. 113.

41 Case 67: Lys. xiii 35.

42 Cases 80–1: [Dem.] xlix 9–10.

43 Case 109: Hyp. iv. 29, Hesp. v (1936) 393–413, no. 10, ll. 47–50, 111–15.

44 Cases 85–6: Aesch. ii 30 with Arist. Rhet. ii 1380 b 10–13. The inference from δῆμος in Aeschines is less than certain.

45 Cf. Lipsius 188–92.

46 Cf. above p. 106, and Rhodes 164–71.

47 See in general Rhodes 52–81; Laix, R. A. de, Probouleusis at Athens (U. of California Publications in History lxxxiii: 1973) 3–142Google Scholar; Rhodes, , JHS xciv (1974) 232–3CrossRefGoogle Scholar (reviewing de Laix). There were similar provisions for the presentation of προβολαί and ίκϵτηρίαι (Ath. Pol. 43.5–6), and in the case προβολαί the limitation of numbers may be diought to favour prior notice.

48 E.g. Rhodes 55–6, Hansen 25; de Laix, op. cit. 178, does not discuss this question.

49 Case 11: And. i 11–13.

50 See Cloché, P., Rev. Hist., cxxx (1919) 5–68Google Scholar, Andrewes, A., Phoenix xxviii (1974) 112–22CrossRefGoogle Scholar.

51 Cf. below p. 110.

52 Case 66: Xen. Hell, i 7.1–3, D.S. xiii 101.1–5. It is not clear at what point the attack on the generals came to be regarded as an ϵίσαγγϵλία: on deposition and ϵίσαγγέλία see below p. 110; on the sequel to these events see below p. 111.

53 Case 99: Tod 154. If this were a formal ϵίσαγγέία from the beginning we might expect the accused to be named in the decree.

54 Case 119: Hyp. i 3.

55 Case 12: Is. xvi 7.

56 Cases 13–61: And. i 15–17, 34–45. 61–8. I am not sure that the involvement of the ecclesia is proved by the use of δῆμος and οἱ Ἀθηναϵοι in Thuc. vi 60. 1, i v 61.7, and of ύμϵῖς in And. i 37, 66 (cf. below p. 111).

57 Case 67, cf. Rhodes 164–6: Lys. xiii 19–33.

58 Cf. Rhodes 186–8.

59 Cases 135–7: decree ap. [Plut.] X.Or. 833 e–f.

60 Case 139: Lys. xxx 10.

61 Cf. Rhodes 183 with n. 4.

62 Case 142: Dem. li 8–9 with 1: the end of §9 suggests that here ὺμϵῖς may be taken seriously.

63 Case 144, cf. Rhodes 154–6: [Dem.] xlvii 41–2. The charge was ὡς ἀδικοῦντι καὶ διακωλύοντι τὸν ἀπόστολον: it is not clear whether in this instance that was represented as treason or as μὴ χρῆσθαι τοῖς νόμοις; in Cephisophon's decree for a colony to the Adriatic in 325/4 failure to do one's duty in accordance with that decree is regarded as a dereliction of official duty punishable by the εὔθυνοι, while ἀτακτοῦντας trierarchs are to be punished by the boule (Tod 200. 233–46).

64 Case 138: ML 85.38–47.

65 Case 143: Aesch. i 100–12.

66 Case 11: And i 11. Cf. above p. 109.

67 Case 67, cf. Rhodes 164–5: Lys. xiii 50, 56 (this stage of the case was conducted under the régime of the Thirty). Hansen, case 67 n. 6 (cf. Lipsius 208), regards this use of εἰσαγγέλλειν as non-technical; but I suspect that Agoratus and Menestratus were in retrospect treated as οἱ εἰσαγγείλαντες.

68 Case 144, cf. Rhodes 164: [Dem.] xlvii 41–2.

69 The cases of Pericles (6), the generals after Arginusae (66), Ergocles (73), the generals who supported Thebes in 379/8 (77–8), Timotheus (80), Autocles (90), Cephisodotus (96), Iphicrates and colleagues in 355 (100–2), and the thesmothetae of 344/3 (103–8). These are discussed by Hansen, 41–4, who concludes that ‘an apocheirotonia of a magistrate was normally the first step towards an eisangelia.’ Cf. Harrison 59: ‘This procedure (sc. ἀποχειροτονία) was in effect an εἰσαγγελία.’

70 Cf. above p. 109, on the trial of the generals after Arginusae.

71 Cf. the cases of Cimon (5), Eurymedon and colleagues (7–9), Thucydides (10), Ergocles (73), Philocrates (109) and Lysicles (112), discussed by Hansen, 45–7.1 too think that the trial of Cimon arose from his (ϵὔθυναι, but I suspect that before Ephialtes' reform both ϵίσαγγϵλλαι and ϵὔθυναι were the concern of the Areopagus: cf. above p. 105.

72 Cf. Hansen 31–3.

73 I am not sure that Hansen is right to restrict κατάγνωσις to unfavourable decisions of this kind: the decisions of the ecclesia in response to a προβολή, though they had purely advisory force, could be described as καταχειροτονίαι if unfavourable to the accused or as ἀποχειροτονίαι if favourable (Dem. xxi 1–2, 214), and it may be that an unfavourable decision of the boule which was embodied in a προβούλευμα to the ecclesia could also be termed κατάγνωσις.

74 Hansen, 24–5, obtains this result from [Dem.] xlvii 42–3 and Ath. Pol. 45.2:1 am less confident that Ath. Pol.'s summaries of Athenian law can be pressed this far, and suspect that the boule had an inappellable right to impose fines up to 500 dr. (cf. Rhodes 147 with n. 6); it is beyond dispute that there was some distinction between penalties within the boule's competence and penalties beyond the boule's competence, to which Ath. Pol. makes no allusion.

75 Cf. the procedure followed in 339 when news arrived that Philip II had occupied Elatea: Dem. xviii 169–70. This preceded the ἐκκλησία τοῖς στρατηγοῖς: cf. MacDowell's edition of And. i, p. 182.

76 Cf. above p. 109.

77 Is. xvi 7; Plut. Alc. 21.7 cf. 22.5, D.S. xiii 5.2, 4, cf. 69.2 (the use of δήμος by these writers is not enough to prove the point, but I readily grant that a vote of the ecclesia was needed to recall Alcibiades from Sicily.

78 Cf. above n. 56.

79 Cf. above p. 109.

80 As Xenophon tells the story, complaints about Arginusae were introduced into a trial on a financial charge; he implies but does not openly state that it was because of Arginusae that Erasinides was placed under arrest.

81 I quote §32, from Hude's O.C.T.: μόν-η is Frohberger's correction of μέν); the meaning is not in doubt.

82 Case 109: Dem. xix 116–17, Hyp. iv 29. In Hesp. v (1936) 393–413, no. 10, lines 48–9 are restored [——τῆς γραφῆς εἰς ἣν εἰσήγ]γειλεν αὐτὸν Ὑπ[ερείδης τῶι δήμωι ἀλλ᾿ ὀφλό]γτος ἐρήμην, but the corresponding passage in lines 113–15 reads κατὰ τὴν εἰσαγγελίαν ἣν εἰσήγγει[λεν αὐτὸ]ν Ὑπερείδης: [Γ]λαυκίππο: Κολ: ἀλλ᾿ ὀφλό[ντοσἐρ]ήμην, and in line 49 Κολλυτεὺ: is more probable than τῶι δήμωι (my attention was drawn to this by Dr D. M. Lewis; I am unhappy also about the restoration τῆς γραφῆς εἰς ἣν εἰσήγ]γειλεν in line 48).

83 Case 121: Lye. Leocr. 19 (probably to be connected with the εἰσαγγελία against Leocrates), 127.

84 Case 127: [Dem.] xxv 47–8.

85 Cases 131–3: Ant. vi 35–8.

86 Cases 135–7: decree ap. [Plut.] X.Or. 833 e–f.

87 Cf. above p. 110.

88 Case 138: ML 85.38–47. Cf. ML 46.31–41, on the procedure to be followed against any one who interfered with the payment of tribute to Athens: accusations were to be made through the prytanes to the boule, which if it found the accused guilty would refer the case to a δικαστήριον; but the verb used of the accuser is not είσαγγέλλειν but γράφεσθαι.

89 Case 139: Lys. xxx 10–11.

90 Case 140: Lys. xxx 1; 7; 30 (ύπὸ Markland: ùnέp MSS).

91 Case 142: Dem. li 8–9 (where I accept Hansen's defence of δικαστήριον) with 1.

92 Case 144: [Dem.] xlvii 42–3.

93 Dem. xxiv 63. Hansen supposes this to refer only to his sub-class of εἰσαγγελία to the boule: cf. above pp. 107, in with n. 73.

94 Cf. above p. 110.

95 E.g. ML 89.37–8, Tod 131.15–16.

96 Cf. Rhodes 168–70. 1 concede to Hansen, 52, that the reservation of the death penalty for the δῆμος πληθύων (people in assembly, i.e. ecclesia) is to be read in its context of laws dealing with the powers of the boule; but it remains true that the δικαστηρια were thought of as bodies representative of the Athenian people and able to express the will of the people on the litigants before them (cf. Caven, B. McM., JHS xcvi [1976] 227CrossRefGoogle Scholar, reviewing Eisangelia and another book by Hansen).

97 Cf. above p. 108.

98 Cf. Hansen 29–31: he believes that εῆσαγγέλλοντες had always been liable to a fine for withdrawing their prosecution.

99 The one pointer to a specialist that I have found is [Plut.] X.Or. 842 c: Lycurgus εἰσήνεγκε δὲ καὶ ψηφίσματα, Εὐκλείδῃ τινὶ Ὀλυνθίῳ χρώμενος ἱκανωτάτῳ περὶ τὰ ψηφίσματα. Aesch. iii 125 claims that Demosthenes prevented Athens from supporting the Amphictyony in the Fourth Sacred War by taking advantage of the inexperience of the man whom he persuaded to propose an apparently innocent motion; D.S. xvii 15.3 attributes to Demades a ψήφισμα γεγραμμένον φιλοτέχνως.