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VI. THE COURT SPEECHES 1 MacDowell 1963 remains the most useful study. Although scholars have disputed some of the details, his account is still largely accepted. 2 Inscriptiones Graecae I3 104; see Stroud 1968; Gagarin 1981. 3 The Basileus, or “king,” was one of the nine Archons or chief magistrates at Athens. Since “king” is a misleading equivalent, and the modern expression archon basileus does not occur in our classical sources, I refer to him as the Basileus. 1. athenian homicide law As a background to discussion of the individual works, I begin with a brief summary of Athenian homicide law and legal procedure in Antiphon’s day.1 The Attic orators and others refer to the Athenian homicide laws as the oldest in the land. Scholars generally accept the tradition that the first laws written for Athens by Draco around 620 were all replaced a generation later (around 590) by Solon, except for Draco’s laws on homicide; thus, the homicide laws were the earliest of “the laws of Draco and Solon,” which remained the basis of Athenian law until Antiphon’s day. By the end of the fifth century, so many additions and revisions had accumulated that the Athenians appointed a commission to sort out and reinscribe those that should still be treated as valid. One of the first texts to be reinscribed in 409/8 was “the law of Draco concerning homicide,” and this inscription on stone survives to the present day, albeit in a mutilated state.2 From this and other evidence , primarily the orators and Aristotle’s Athenian Constitution, we can reconstruct the main features of homicide law, though some details remain controversial. When someone was killed, relatives of the victim normally brought a private homicide suit, a dikē phonou, against the alleged killer. They made a proclamation in the agora naming the killer and filed the suit with the Basileus , the official who oversaw religious matters in Athens.3 The Basileus 06-T1987 1/31/02 10:05 AM Page 135 136 the court speeches 4 Homicide was the only crime for which unintentional acts were explicitly punishable in Athenian law. This probably reflects prelegal conditions portrayed in Homer, where unintentional killings require exile (e.g., Iliad 23.85–90), and is another indication of the antiquity of the homicide laws. 5 SeeAth. Pol. 57.3. Two other homicide courts were used under special circumstances: thePrytaneiumwhenthekillerwasunknown(orwasananimalorsomethinginanimate), and a court “in Phreatto” for cases where the killer was already in exile. 6 See Gagarin 1997: 104. We have other speeches for trials before the Areopagus (such as Lysias 7), but not from a homicide case. 7 See below, section 6.4. Lysias 13 is also a homicide case brought by an apagōgē. 8 Antiphon 1 and 6 represent the litigant’s first speech; cf. 6.14: “And if I am lying . . . the prosecution can refute me in their second speech on any point they wish.” 9 Demosthenes 23.53; Ath. Pol. 57.3. held three preliminary hearings, each a month apart, then supervised the trial, which was usually heard by one of three special courts, depending on the charge, the defendant’s response, and other circumstances: the Areopagus tried cases of intentional homicide; the Palladium, unintentional homicide4 and cases involving noncitizens; and the Delphinium, homicide that was exempt from punishment by law.5 The Athenians treated someone who had “planned” or instigated a homicide as liable for prosecution under the homicide laws just like a person who killed “with his own hand.” The history of and rationale for these courts is much disputed, but we happen to have actual examples of a case from each of them: Antiphon 1 tried before the Areopagus,6 Antiphon 6 before the Palladium, and Lysias 1 before the Delphinium. A different procedure, apagōgē or “summary arrest,” is used in Antiphon 5, but this appears to have been unusual, perhaps even unprecedented .7 Thedikē phonou had religious associations, and thus its procedures differed in some respects from those in other cases; for example, the litigants had to swear more solemn and serious oaths. In a dikē phonou, the plaintiff and defendant each speak in turn, then each gives a second speech in rebuttal;8 in an apagōgē (Antiphon 5), each litigant gives only one speech. The jurors vote immediately. The penalty for intentional homicide is death, though exile seems to have been a common alternative; if he wished, the accused could leave and go...

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