ElAnt v7n1 - Tradition and Originality: Aspects of Athenian Forensic Oratory in the Late Fifth and Early Fourth Centuries B. C.

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February 2003	Volume 7, Number 1

Tradition and Originality: Aspects of Athenian Forensic Oratory in the Late Fifth and Early Fourth Centuries B. C.

David Whitehead
Queen's University, Belfast
d.whitehead@qub.ac.uk

Proem

Ancient Athenian (or, traditionally, 'Attic') oratory has survived to us from an extraordinary period of almost exactly a century, from the 420s to the 320s, ¹ and within the extant material there is a heavy preponderance of forensic oratory (in the ancient and pure sense of that term): speeches delivered by litigants in court. Some of these speeches had been prepared, in whole or part, by the litigants themselves, but most were the work of so-called logographers, experts in law and, more important, in the rhetorical skills needed to win over the enormous juries which the classical Athenian legal system employed.

The richness of (most of) these speeches, on several levels, has long been generating detailed commentaries on them; ² and with additions to the genre all the time ³ , one may hope for complete coverage sooner or later. That said, major gaps still exist for the time being. One that I have discerned myself, and would venture to call glaring, is in respect of the six forensic speeches - nos. 16-21 in the standard numeration - of Isokrates (436-338). ⁴

In most versions of the hellenistic "canon" (chronologically arranged) of Ten Attic Orators Isokrates appears as no. 4. ⁵ Actually his life, and with it his output of work, was so prodigiously long as to rob any such position of much significance; nevertheless, speeches 16-21 were all early productions, written in the decade-and-a-half (403-388) following the end of the Peloponnesian War. Full appreciation of them, accordingly, calls for a Janus-like stance looking back as well as forward: back to the last quarter of the fifth century, when early efforts in Athenian forensic oratory furnished the young Isokrates with his point of departure, and forward to the high fourth century, when even though he had abandoned the lawcourts for other endeavours he was still, for that very reason, an influential figure on the Athenian rhetorical scene at large.

When one considers that the lifetimes of Isokrates and Hypereides - no. 9 in the "canon" - overlapped by more than fifty years (not to mention the ancient view, which there is no call to dispute, that they were master and pupil), ⁶ it is reasonable in principle to expect broad comparability in their respective efforts in lawcourt oratory - a genre ultimately notable, after all, for heavy reliance on re-usable rhetorical commonplaces (topoi). Yet anything 're-usable' has had a first user, and one wishes to gauge, in the present instance, the scope for invention in the formative phase. I find (1) that some scholars, at any rate, see the scope for individuality in late-fifth-century forensic oratory already severely circumscribed by prescriptive theory, and (2) that Isokrates in particular struggles for due recognition, or even, sometimes, adequate mention.

My purpose here is to address, and if possible redress, both of these issues. Concerning the first and broader one, the main thrust of the argument will be negative. When a detailed effort is made, as it recently has been, to reconstruct the "rules" of rhetoric as they had solidified (it is argued) as early as c.420, the results of the exercise seem to me less than is claimed for them. As to Isokrates, the reverse: his own wish to forget his period as a forensic orator is not an example we should allow ourselves to follow; and his positive contribution to the genre, while impossible to assess in depth, can at least be better appreciated by juxtaposing him (chronologically as well as substantively) with his contemporary and rival Lysias.

Proofs part 1: technai - stimulus or straitjacket?

(i) Study of the second five of the Canon of Ten (Aischines, Lykourgos, Demosthenes, Hypereides, and Deinarchos), the ones active in the second half of the fourth century, can invoke as contemporary material the earliest surviving specimens of the systematic or quasi-systematic rhetorical treatise: Aristotle's Rhetoric and the Rhetorica ad Alexandrum attributed to Aristotle but actually (or so it has been plausibly argued) the Techne Rhetorike of Anaximenes of Lampsakos. For all that individualism in the courtroom could still make its mark in this era, most of the conventions of the genre were well-established, and a minimally proficient level of performance in it lay within the compass, no doubt, of anyone able to absorb and follow them.

How far was that true a century earlier? The question has been much disputed, especially in recent years. Thomas Cole in 1991 ⁷ and, even more radically, Edward Schiappa in 1999 ⁸ have insisted that overarching rhetorical theory is a phenomenon which cannot be traced back earlier than the fourth century. Stephen Usher occupies a position no less firm but diametrically opposite: much of rhetoric was systematized in the third quarter of the fifth century and, as such, significantly predetermined the ground-rules for even the putative pioneer of forensic oratory in Athens, Antiphon (c.480-411). ⁹

When views as incompatible as these are the main currency of debate the attractions of a intermediate position are enticing. But in truth, holding any position in this area calls for definite stances on extremely difficult issues: notably, the credence to be attached to what Plato and (especially) Aristotle say - Aristotle in works now lost - about fifth-century oratory and rhetoric, outside Athens (particularly Sicily) as well as inside. This is the principal citadel assailed by Cole and Schiappa, and it is not my purpose here to assess whether their claims to conquest are justified ¹⁰ . Instead, and on the clear understanding that challenging Usher does not of itself mean accepting Cole and Schiappa tout court , my point of departure (and disagreement) is Usher's Greek Oratory: tradition and originality . For Stephen Usher fails in his attempt to convince this one reader, at least, that already in c.420 tradition was the overwhelmingly dominant element.

(ii) It is not central to Usher's purpose to demolish the modern orthodoxy on rhetorical technai . This maintains that the term techne , which in the fourth century and later meant (as we have seen in the case of Anaximenes) a general "handbook" for would-be speakers, had in the fifth century designated something different and more modest: a model speech, a paradigmatic specimen of rhetoric in ¹¹ action. On the contrary, the likelihood of this is so strong that it is accepted, albeit without great enthusiasm. ¹² All that Usher can do is plead that 'the existence in the fifth century of prescriptive manuals containing topoi in standard forms of words, which could be learnt and applied individually, cannot be ruled out entirely, given the frequency of similar formulae in extant speeches'. This plea forms part of a larger insistence that 'rules of partition, topics, types of argument, even staseis , were all firmly in place when Antiphon and Lysias came to write their earliest speeches'. ¹³

One of the specifics listed there, staseis , is worth dwelling on, briefly, for the light it sheds on Usher's general approach and methodology. The scholarly consensus, most recently voiced by Malcolm Heath, is that where stasis (the identification of legal and procedural issues) is concerned, authentic general analysis had to await Hermagoras of Temnos in the second century - before which, in the fourth century (he does not mention the fifth), there were merely occasional 'reflections' on this sort of question. ¹⁴ Usher protests that fifth-century instances of stasis -theory are there for those willing to see them: the tragedian Aischylos in his Eumenides (on different kinds of homicide), the Antiphontean Tetralogies (3.2.3, 4.2.3), Lysias (speeches 12, 13, and 29). ¹⁵ But a proposition like this surely elides the difference between ( a ) ad hoc discussion or illustration of something - however interesting and important in itself - and ( b ) its systematic analysis. If, as in this case, b is found later than a , we have the chicken-and-egg dilemma, or at any rate (in fields where the absolute chronological priority of theory over practice is rare) the task of judging the extent to which attested a requires and presupposes a context of b . To a very considerable extent, Usher evidently believes. But one is not bound to agree with him. Likewise, the fact that later rhetoricians identified - as, precisely, rhetorical - and (very often) named a particular figure of speech or thought can be just as useful for us as it was for them in isolating and labelling instances of the phenomenon if we meet it in earlier writers. What it is not is licence to push back, equally early, the date when the figure had a name, and use of the figure was a self-consciously rhetorical act. (For an instance of what I mean by this see the end of section vi, below, on, prokatalepsis .)

(iii) Left to itself, a claim that the existence of comprehensive, prescriptive, pre-fourth-century technai 'cannot be ruled out entirely' would describe a standpoint every bit as weak as it sounds. Instead, Usher proffers the 'confident assertion' that 'unlike other genres, oratory evolved under the stimulus of two agencies, that of the preceptor and that of the practitioner', and that it was the former - precursors of even Antiphon - whose teachings 'crystallized into a body of topics and types of argument which only the most talented (or foolhardy) might ignore'. ¹⁶ Thus, evidently less crucial for Usher than the mere possibility of a parallel category of all-embracing "handbooks" (a term to which he pardonably adheres, for convenience's sake) is the certainty - as he sees it - of so many interlocking technai of the model-speech kind that they constituted between them the 'body' of prescriptive matter he envisages.

How can we fathom what such productions might have looked like, and contained? Here Usher endorses the view that the Antiphontean Tetralogies, three sets of four paired speeches for putative homicide cases, belong in this genre, ¹⁷ and are indeed its only (certain) surviving exemplars, of a forensic kind. ¹⁸ I agree, and so have no quarrel at all with the idea that echoes of Antiphon 2-4 in later speeches - properly forensic ones - are matters of significance. But Usher goes far beyond that:

The results of the foregoing search for doctrine, topoi, types of argument, and rhetorical material in literature preceding the first Attic oratory must now be brought together. The product of this exercise is a kind of composite techne , the entire content of which one may assume to have been available to a speechwriter plying his trade from about 420 BC. ¹⁹

The contents of this 'composite techne ' occupy the remainder of Usher's chapter 1, some five pages. As an argumentative (rhetorical?) device it is a paradoxical combination of the dangerous and the disarmingly honest. The danger - that it may mislead - is present unless one constantly reminds one's self that the construct is, precisely, 'composite': a conflation of individual ingredients which (as we have seen) even Usher himself is unsure were ever brought together thus in a single vademecum. But at the same time, and more importantly, from a methodological point of view its defining characteristic is its sheer honesty. Others might have offered impressionistic generalities, propped up here and there with examples which (in accordance with one of the topoi noted: superabundance) we were invited to see as parts of a whole too copious to itemize in full. What Usher provides, it would seem, is the whole: each and every instance, or so it must be presumed, where - in his opinion - recognizable rhetorical tactics or devices were in existence before c.420, and reveal that fact by their appearance in the Tetralogies and/or pre-420 tragic and comic drama.

This methodological transparency deserves respect and admiration, which can best take the form of a response in kind: an assessment of the evidence adduced point by point.

(iv) Usher's composite techne has a fourfold division: proem, narrative, proof, epilogue. ²⁰ The first, third, and fourth of these he regards as requirements of rhetorical division laid down from the very beginning by 'the Sicilian pioneers', Korax and Teisias. It is of course possible to take a more sceptical view of the ancient information pertaining to this pair than Usher does, ²¹ but, as non-scepticism has never been proved untenable, I would not claim this issue as one on which the composite techne is demonstrably flawed. Rather, I have two ancillary observations.

One is to point out - Usher nowhere does - that fourth-century theory countenanced the absence of at least one element of the supposedly fundamental tripartition, the epilogue. 'The epilogue is not part of every forensic speech, for instance when it is short, or the matter easy to remember' (Aristotle, Rhetoric 1414b4-6). In the light of this, I might add, the orthodox view that Isokrates' speech 21 Against Euthynous once had an epilogue but was shorn of it may simply be misconceived. (Two of Isokrates' other forensic speeches, 16 On the Chariot-Team and 20 Against Lochites , consist, as preserved, of proof plus epilogue only - the epilogue exceedingly brief in the case of 20. It is a pity that Aristotle and/or Anaximenes do not similarly "sanction", in explicit terms, such apparently acephalous speeches; nevertheless, here too the operative word may well be 'apparently'.)

The second thing that needs to be said is something Usher himself does say, and properly so: there is really no indication whatever that the abstract world of the techne had a settled place (or status) for narrative. On the contrary, he suggests that '[n]arrative was to come into its own in real lawsuits, in which litigants had real-life stories to tell'. This is probably fair comment: the pre-420 pickings are lean (he cites merely Antiph. 4.1.6), and for once he is prepared to concede the role of innovators to men whose names we actually know. He singles out Lysias and Andokides. Antiphon should join them, on the strength of the excellence (in miniature) of 1.14-20. And in adding Isokrates too, I can adduce Usher's own, later comment that Isokrates 17, the Trapezitikos , his 'most accomplished' effort in the genre, contains 'one of the longest continuous narratives in early oratory'. ²²

(v) Proem . 'The conditions which a speaker needed to create at the beginning of his speech would have been universally understood. He had to win his audience's goodwill'. Such is Usher's (unexceptionable) definition, following later doctrine on the matter, of a proem's functions. He proceeds to list a number of 'specific topoi designed to realize this aim', supplying in each case what he regards as instances of them in the pre-420 material.

These instances are more or less adequately convincing ones as far as their occurrence in the Tetralogies is concerned:

( a ) Confidence in the jurors' fairmindedness (2.4.1)
( b ) Sympathy with them in their difficult task (4.3.1)
( c ) The disadvantages of one's own character and disposition (3.2.1)
( d ) Apology for having to argue cleverly (3.2.2, 3.4.2)
( e ) The advantages enjoyed by the opponent: preparation (2.1.1, 3.3.3)
( f ) The advantages enjoyed by the opponent: safety (4.2.1)
( g ) Superabundance of evidence, arguments, etc. (3.3.1)
( h ) The opponent's motives (4.2.1)
( i ) Emotional appeals: danger (2.2.1-2, 2.4.1)
( j ) Emotional appeals: general misfortune (2.2.1, 2.3.1, 2.4.1-2, 3.2.2)

Under five of these ten heads ( b , c , d , e , f ), however, no other illustrative passages are adduced, a fact which much surely leave open the possibility - to put it no higher - that the resultant topoi took their cue from the Tetralogies themselves. In order to feel confident that such strategies were recommended in a (hypothetical) plurality of techne -type material circulating in the third quarter of the fifth century, what we need, as Usher is well aware, is evidence from other quarters. This is where his appeal to comic and (particularly) tragic drama comes in. And it does so with, to my mind, less impressive results.

The evidence of drama is used in two ways: (1) to provide extra-Tetralogy instances of the remaining five of the ten topoi I have already mentioned ( a , g , h , and i-j ), and (2) to illustrate three more.

Concerning 1:

(a) Expressing confidence in a jury's fairmindedness is a sympathy-grabbing ploy ( captatio benevolentiae ) we are invited to find in lines 1340-44 of Aristophanes' Knights , staged in spring 424. Yet even if one is prepared to discount the fact that the context is not jurycourt but Assembly, the Sausage-Seller there seems to me to be depicting Demos as simply gullible, not impartial. ²³

(g) The topos of superabundance is, by contrast, plain to see in Sophokles, Philoktetes lines 1047-8 ²⁴ - but, staged in spring 409 (archon-date in ancient hypothesis ), it is too late for Usher's purposes.

(h) An opponent's motives are, likewise, impugned in Euripides, Hekabe 1206-7, albeit in a way so very unremarkable that one is bound to wonder whether it really was a tactic which needed to be solemnly recommended by rhetoricians. ²⁵

(i-j) Here Usher's contention is that 'the injection of Emotional Appeal into prooemia seems, on the evidence of the Tetralogies and Euripides (see Med . 465-74, Heraclid . 941, Hipp . 936-45) to have been a firmly recommended practice'. But as under the previous head, to say that (some of) Euripides' characters begin speeches with emotional appeals - which they do - falls well short of proving that they would not have done so except at the behest of rhetorical technai .

Concerning 2, what are professed to be early appearances of three topoi on the dramatic stage, two of them come from Aristophanes' Acharnians (staged in 425). Lines 496-98 are seen as employing a sub-category - poverty - of the complaint that one is disadvantaged (see c , above), ²⁶ and lines 636-40 a sub-type of the corresponding claim (see e-f , above) that one's opponent is better placed, in this instance by dint of ingratiating cleverness. Yet like the Knights passage considered above, any significance claimed here must face the fact that we are on the Pnyx Hill, the Assembly-place, not in the courts; and I am particularly baffled by the appeal to 636-40, where there is no opponent but rather another critique (cf. the Knights passage) of the Assembly's susceptibility to flattery, this time from foreign envoys.

That leaves the topos which Usher calls 'inexperience and/or ineptitude as a speaker'. This, he contends, influenced lines 986-87 of Euripides' Hippolytos , where Hippolytos says 'I am unskilled at making a speech to a crowd; I know better how to do so to contemporaries and a few' ( ego d' akompsos eis ochlon dounai logon,/ es helikas de k'oligous sophoteros ).

Usher's view of this passage, to be sure, is a modern orthodoxy: it appears in (e.g.) Barrett's commentary, in Solmsen's review of Barrett, and in Michael Lloyd's monograph on the Euripidean agon. ²⁷ Nevertheless, I query it. When Usher himself calls Hippolytos' words a 'variant' on the topos (cf. Solmsen, 'varied'), that to me does not go far enough. Barrett, after initially stating that '[t]his "unaccustomed as I am to public speaking" was a commonplace of the Athenian lawcourts (e.g. Lys. 12.3, 19.2, Is. 8.5, 10.1, Dem. 27.2, 55.7) as a means of securing the jury's sympathy', immediately adds 'but when Hipp. uses it to express his contempt for his audience and to plume himself on the high intellectual standards of his own côterie, this peculiar priggishness can have only the opposite effect'. Indeed so: a captatio mal evolentiae , were such a term permissible.

Lloyd too makes, and develops, much the same point:

It is significant in itself that Hippolytus uses rhetorical formulae, and the way he uses them is also interesting. For example, the commonplace that the speaker is unaccustomed to public speaking tends to be used by the orators in a rather deferential manner. Hippolytus, by contrast, uses highly coloured language to express his contempt for the mob ( ochlos 986, 989) and says that one needs to be kompsos and phaulos [smart and common] to address it convincingly. He implies that his actual audience is a mob of this kind and implicitly contrasts it with the sophoi [intellectuals] whom he prefers to address. A virtuous defendant was not to express himself in so antagonistic a manner again until the Socrates of Plato's Apology ... Speakers of actual forensic speeches sometimes criticize juries, but never express such comprehensive contempt for the circumstances of the trial.

The more these scholars illuminate the passage in terms of Hippolytos' warped personal psychology, the less it displays, to me, any cogent connection with 'actual forensic speeches', or (the issue here) paradigmatic advice on how to begin them. What Usher et al . are suggesting is that Euripides makes Hippolytos invert and subvert an already-established and recognizable topos of inexperience - and to do so, indeed, twice over: when Hippolytos goes on to say that he is compelled to speak nevertheless ( homos d' ananke , 990), Barrett adduces Lys. 12.3 again ('I am compelled by events to prosecute this man'), but he (rightly) comments on the Euripides passage itself in a way which emphasizes the dissimilarity between it and anything to be heard in a courtoom. ²⁸ What one needs to ask is whether the Hippolytos passage depends on the existence of the forensic topos of inexperience to give it point and meaning. To me it is self-contained and sufficient as it stands. Accordingly, I have no problem in conceding the possibility that litigants (especially defendants) in court were routinely parading their inexperience and/or inarticulateness, whether real or pretended, before Usher's 420 watershed; even before 428, the year when Hippolytos was staged. For this see already Antiph. 3.2.1-2; and then, in practical use, Antiph. 1.1 and 5.1-2. (The speaker of Antiph. 6, an active litigant, had to take a different tack.) When we come to the late fifth century, Lysias' fine speech 12 Against Eratosthenes - a speech which, it is routinely supposed, had a significant impact on the forensic oratory of the era ²⁹ - uses this approach in its autobiographical §3 (cited by Barrett: above), and fourth-century clients of Lysias employ it too (17.1, from c.397; 19.2, from the 380s). What is more rarely noted is that the same opening is found in Isokrates 21 Against Euthynous , also from the late fifth century: see the discussion in Part 2, below.

(vi) Proof . 'The lack of a distinct role for narrative in early theory leaves only an undifferentiated central section, which contains the topoi, forms of argument, and figures of thought that combine, without clearly-defined division, to present the speaker's side of the contest ( agon ) and his rebuttal of his opponent's case' (Usher). After this as proem, his own proof comes under the three heads indicated: arguments from probability ( eikos ), with two sub-species - biographical proof and character-types - and six associated topoi; seven 'forms of argument, and argumentative formulae'; and a further seven 'figures of thought'.

As with the proem material, the first thing to be said here is that many of the items listed are claimed for, pre-420, the Tetralogies only. That is true, it seems, of: the pistis ek biou (biographical proof: 2.2.12, with 2.3.8 for the riposte); the implicit probability of character-types (4.3.2, 4.4.2); ³⁰ the topos of dianoia (intention: 4.4.4-5); the topos of peritrope (reversal of accusation: 3.2.6-8, 3.3.9, 3.4.6, 4.2 passim , 4.4.7-8); particular-to-general universalizing (2.3.7, 3.4.6); the evidence of slaves (2.2.7-8, with 2.3.4 for the riposte); petitio principii (begging the question: 2.1.1, 2.4.5); hypostasis ³¹ (3.3.4-5, 4.3.5); concession (2.2.10, 4.4.7); and correction ('X, or rather Y': 2.4.2). In these instances, accordingly, the possibility that no other techne of this era contained them has to be seriously entertained.

The remaining items, once again, invoke other evidence, either (1) on its own or - best, for Usher's purposes - (2) in conjunction with Tetralogy passages.

Category 1 is less than consistently cogent. For the dilemmaton or double-catch - nowadays, post-Heller, we might say Catch 22 - found in (forensic) Antiphon and Lysias, no Athenian precedents at all are proffered; merely the anecdote about Teisias refusing to pay his teacher Korax's fee (because the skills he had learned would either induce the jury to vote for him or else, if they did not, be exposed as not worth paying for). As Usher notes, much the same tale is told (by Diogenes Laertius 9. 56) of Protagoras and a pupil, Eualthos. In neither version can a source-tradition be reliably traced back to the fifth century. More convincing as a putative feature of the pre-420 rhetorical landscape is the device which Usher christens the pathetic paradox (defined both here and again in his glossary at p. 367). It is a sort of argumentum e contrario with enhanced emotional content: 'is it not terrible/disgraceful etc. ( oukoun deinon/aischron ) if, when undesirable X cannot happen, even-more-undesirable Y can?' Two cases of this in the Hekabe of Euripides, lines 311-12 and 592-98, are adduced. Hypothetical inversion (an unfulfilled condition contrasted with reality: if X, then Y, but as things are, Z), not found in 'a fixed formula' in the Tetralogies, is, again, to be seen in Euripides: Medea 488-91 and 585-87, Hippolytos 1022-27; ³² so is reductio ad absurdum ( Alkestis 699-702), ³³ hypophora (question-and-answer: Hippolytos 1009-15), ³⁵ and paraleipsis (what one could say but will not: Herakleidai 951-52). Aischylos, for his part, is cited for erotesis (interrogation: Agamemnon '855ff' = 585-610), a dynamic strategy on stage which may or may not have established itself in the mainstream of actual forensic oratory. ³⁶

Where convincing examples of what come to be commonplaces of forensic oratory are put in the mouths, thus, of tragic characters, especially by Euripides, there clearly must be a case for detecting the influence of fifth-century rhetorical technai other than the Tetralogies. But the examples do need to be, precisely, convincing, to an unprejudiced observer, and Usher does his cause a disservice by proffering some that are not, alongside those that are.

Lapses of this kind do not, let it be said, flaw the presentation of his small but key category of evidence, phenomena which he finds in pre-420 Euripides and in the Tetralogies. Arguments from probability ( eikos ), so crucial to the Tetralogies (2.1.2-4, etc.), do indeed figure at lines 1007-20 of the Hippolytos . A topos in praise of the law is reasonably found both in the Supplices (lines 312-13 and 429-41) and in Antiph. 3.4.8. Arguments a fortiori are propounded in Antiph. 4.2.2 and at lines 451-61 of Euripides' Hippolytos . As to the topos of prokatalepsis (anticipation of the opponent's arguments), this is claimed, rightly enough, in Antiph. 4.2.3, and there are examples in Aristophanes ( Acharnians 540) ³⁷ and Euripides ( Hippolytos 962). ³⁸ Yet we might note that Lloyd mentions Hippolytos 962 in a list of eight Euripidean instances of prokatalepsis 'used in a more natural and less obviously calculated style' (sc. than Troades 938 and 951). ³⁹ And to go further still: in his commentary on the passage that Usher might advantageously have chosen as best of all for his purposes, Supplices 184-86 ( tach' oun an eipois etc.), Christopher Collard calls prokatalepsis 'natural in any argument and occurs already in Homer, Il. 6. 459, kai pote tis eipeisin etc.'. ⁴⁰

(vii) Epilogue . 'As is the case with prooemium and narrative, the range of topoi which the Attic orators include in their epilogues is wider and more varied than that found in the early tradition. In the Tetralogies, perhaps because of their brevity, this section is not thoroughly developed' (Usher). Instead of such thorough development he therefore contents himself with citing examples of an anakephalaiosis (closing summary: Antiph. 2.1.9, 3.4.9-10, 4.3.7) and the sort of emotional appeals appropriate to an epilogue. Under this head too the Tetralogies supply the bulk of the illustrations (2.3.11 for an object-lesson to others, 4.4.11 for a plea for time, and several exercises in pathos: 2.1.10-11, 2.2.13, 2.3.10-11, 3.2.11-12, 4.2.9, 4.4.10-11), but a single Euripidean instance, the pathetic Hippolytos 1028-31, joins in the exemplification of 'plea[s] for acquittal or conviction in language which evokes anger or compassion'.

(viii) I undertook at the start of this section to do Stephen Usher the courtesy of examining his 'composite techne ' in some detail, and I trust it will be conceded that I have done so. More: I have supplemented it with other passages; some mentioned by him when discussing the writer in question but not (re-)adduced for the techne ; some cited by other scholars who, to some degree or another, share his approach to this material and what it can tell us. On the debit side, evidence which does not seem to exemplify what has been claimed for it has been identified as such.

To engage in passage-mongering of this kind, to and fro, at far greater length than has been undertaken here would of course be possible, but doing so would risk obscuring the wood with the trees. The real issue is whether - as my initial question put it - the technai served would-be forensic orators c.420 as stimulus or straitjacket. Given Usher's insistence, quoted earlier, that by that time 'the work and influence of the teachers had crystallized into a body of topics and types of argument which only the most talented (or foolhardy) might ignore', it does not seem a caricature of his position to say that he opts for the straitjacket: prescription and repetition, in form as well as content, almost from the very outset. All I can discern, in this formative era, is stimulus: examples, suggestions, experiments.

Amongst those duly stimulated, it is plain, was Euripides, whom as early as 421 Aristophanes dubbed a poet 'of forensic phrasicles' ( rhemation dikanikon : Peace 534). Extravagant claims made, in the late nineteenth century, for the influence of rhetorical "handbooks" on Euripides are rightly shunned nowadays; instead, a sensible and sensitive approach like the one taken in chap. 2 of Lloyd's Agon would (surely) command general assent. Euripides can be seen to have exploited, eclectically, the burgeoning repertoire of rhetorical techniques: sometimes doing so with a light and subtle touch; sometimes with a heavier hand, as in Hippolytos' apologia which 'evokes the lawcourts to a greater extent than any other speech in Euripides'. ⁴¹ And Antiphon, who really did write for the courts, made, on Usher's own showing, 'clear advances on the Tetralogies in technique, style, and use of topoi', besides including 'innovations' in all three (1, 5, 6) proems and giving narrative its due. ⁴²

So, pace Usher, the model of stimulus rather than straitjacket does seem the appropriate one for his chosen watershed date, c.420. I now turn to consider the situation some seventeen years later, in c.403.

Proofs part 2: Isokrates and his contemporaries

(i) The Canon of Ten Attic Orators, as already remarked, ⁴³ is a piece of chronological schematism. Presented as a serial succession of the ten individuals concerned, it needs, in order not to mislead, to be recast as five clusters of them. While even this does not do full justice to historical reality, the groups which suggest themselves are: ( a ) Antiphon; ( b ) Andokides, Lysias, Isokrates; ( c ) Isaios; and ( d ) Aischines, Hypereides, Lykourgos, and Demosthenes, with Deinarchos in tow. The point is scarcely one of great profundity but it does, for present purposes, place proper emphasis on the fact that in the footsteps of Antiphon came, as group b , not just one practitioner of note but three.

The first of them in canonical order, Andokides, was certainly born (in the late 440s) before Isokrates (b. 436). Whether Andokides was also born before Lysias - who was also older than Isokrates - is harder to say because of the notorious crux of Lysias' birth-year; the ancient date of 459/8 has few adherents nowadays, but the alternative cannot be expressed more precisely than 445-436 ⁴⁴ . Still, with (apparently) less than a decade separating their births, the trio were manifestly 'contemporaries' of each other, no less than were Aischines, Hypereides, Lykourgos, and Demosthenes in their, later, era; and beyond the simple matter of when they were born there is the more material point of when they wrote their (forensic) speeches. In the case of Andokides, his one surviving contribution to the genre, speech 1 On the Mysteries , dates from either 399 or (as argued by MacDowell) 400, ⁴⁵ with assembly speeches earlier (no. 2: c.408) and later (no. 3: c.392). Lysias' attested forensic activity, on the standard assumption that speech 20 (from c.410) is not by him, appears to span the years 403/2 to c.380. ⁴⁶ And Isokrates 16-21 were delivered between 403/2 and, apparently, the early 380s. ⁴⁷

Another way of putting this would be to say that, after Antiphon's three courtroom speeches and then the isolated [Lysias] 20 For Polystratos , what we encounter next, in the fifteen years between 403/2 and the early 380s, is a quite tightly packed cluster of at least twenty-eight forensic speeches (one by Andokides, six by Isokrates, and at least twenty-one in the corpus Lysiacum ), ⁴⁸ their relative chronology and, accordingly, their possible influence upon each other not always clearcut.

The significance of Andokides in this respect is obviously limited. Effective though it is in its own terms, On the Mysteries displays a mix of rhetorical convention and (especially) individuality which sets it somewhat outside the mainstream, as regards discernible influences both on it and of it. ⁴⁹ Rather, the comparison which demands to be made is the one between Lysias and Isokrates. ⁵⁰

(ii) To begin this comparison I return to Stephen Usher's Greek Oratory , the most recent study of its subject.

Usher illustrates the scholarly disposition, mentioned in my introduction, to maximize the quality-gulf between Lysias and Isokrates as forensic orators - by heaping praise on the one and, by and large, withholding it from the other.

This is his overall verdict on Lysias:

Lysias made no radical changes to the overall structural framework which he inherited from Antiphon, but expansion of the non-argumentative parts of the speech, especially narrative, gave his oratory a more varied literary character while still fulfilling forensic requirements. Already in his prooemia he shows inventiveness in adapting or combining existing topoi, selecting those which accord with the impression he wishes to convey of his client... The richness of early materials for proof made innovation difficult for Lysias in that section, but he shows a constant awareness of the need for clarity of both argument and expression, and devises counter-arguments to conventional pleas. Procatalepsis (anticipation) comes into its own with Lysias, and probability-argument assumes a variety of guises... His position is pivotal in the development of Attic oratory. ⁵¹

Contrast this on Isokrates 16-21, where a (formally) similar string of qualifiers sound individually and cumulatively so grudging:

On the evidence of these six speeches, Isocrates could have continued his logographic career with considerable success. He has shown himself to be an intelligent if not particularly inventive speechwriter, who knows how to use existing techniques and topoi but does not add significantly to them. He can also write clear and effective narrative, but his attitude to it seems purely utilitarian and he does not give it a distinctive role. Individuality is to be noted in the introduction of epideictic features in Speech 16, while 19 ends with some colourful rhetoric. But the characteristic qualities of Isocratean art, which centre upon his prose style, come into their own [sc. only] in the longer discourses. ⁵²

To reduce the size of this quality-gulf by attacking the high reputation of Lysias would be just as foolish as making unrealistic claims, where this genre is concerned, for Isokrates. Lysias' career in the courts was longer and (very probably) fuller than Isokrates' and, sub specie aeternitatis , his resultant stature and influence correspondingly the greater. In that long-term sense there can be no serious quarrel with what Usher and other modern critics say of Lysias, echoing as they do such ancient judgements as that of Dionysios of Halikarnassos ( Lysias 1): 'he left few of his successors with the opportunity of improving on his performance'. Yet even Lysias had to begin somewhere, at some time; and (as we have seen), short of fresh evidence which will require that 'time' to be moved earlier than 403/2, he made his beginning simultaneously with Isokrates: Lysias motivated directly, by the murder of his brother; Isokrates indirectly, by the collapse of his family fortunes and the consequent need to earn a living.

As is well known, Isokrates sought in later life to deny that he had ever written forensic speeches. The eighteenth chapter of the treatise on him by Dionysios preserves the dossier of relevance: the party - or more exactly, family - line, from Isokrates' stepson Aphareus; a mischievous-sounding insistence by Aristotle (no friend of Isokrates') that Athens' booksellers had 'many bundles of Isokratean forensic speeches' on offer; and Dionysios' own view, following the lead of Isokrates' pupil Kephisodoros, that Isokrates wrote ' some speeches for jurycourts but not many'. Even if Dionysios had not proceeded to quote the first twelve chapters of one of the very speeches that we have, the Trapezitikos (no.17), modern opinion, after sceptical interludes in the nineteenth century especially, has (surely) reached a plateau of acceptance, of 16-21 as a whole, from which there can be no retreat. ⁵³ Nevertheless, my belief is that much modern opinion has also been affected, adversely, by Isokrates' own position on the issue - or more precisely, by what his position is assumed to be. That Isokrates disparaged forensic oratory per se is abundantly clear from his later pronouncements on the subject. ⁵⁴ That he had a low opinion of his own efforts in the genre is not (given his very high level of self-regard) by any means an automatic corollary of this, however, and can indeed to a considerable extent be disproved by the number of times, in his later "speeches", that he re-cycles material from 16-21, both (it would seem) consciously ⁵⁵ and unconsciously. ⁵⁶

We ourselves, quite obviously, are under no obligation to share Isokrates' own estimate of these speeches, whatever we supposed that estimate to be. Nevertheless, if they are approached with an open mind as well as with an awareness of chronology, the perceived balance between 'tradition and originality' in them may need re-adjusting.

(iii) Isokrates 21 Against Euthynous - hereinafter Euth . - is a support-speech ( synegoria ) delivered by a friend of the affluent plaintiff, one Nikias, who is prosecuting his cousin Euthynous. The charge is that of withholding money deposited with Euthynous for safekeeping under the repressive regime of the Thirty (404/3). Precise internal indications of the date of trial are lacking, but there seems no good reason why Nikias should not have brought his suit as soon as such private prosecutions were permitted again, after their suspension between spring 403 and, perhaps, the following spring. ⁵⁷ If that is correct, either Euth . or else speech 18 Against Kallimachos (see iv, below) is the earliest of the six.

Euth . earned its (occasional) ancient name, the Amartyros or Witnessless Speech , because of the plaintiff's dilemma as admitted in §4: no third party, whether free man or slave, was present at the transaction between the two cousins. Nobody saw Euthynous either take the money in the first place or, as the prosecution side alleges, withhold a third of it - one talent out of three - on demand.

As Euth . is a support-speech, and (at just twenty-one chapters) quite a short one at that, it is obviously likely to give an incomplete idea of the full range of arguments deployed by what I have called 'the prosecution side'. With that proviso, three aspects of it seem to call for comment.

One, mentioned already, ⁵⁸ is that the speech as preserved has no epilogue. Whether it ever did have one is impossible to know, but we are not absolutely bound to think so. It is quite conceivable that Isokrates' unnamed client asked for logographic help with a suitably succinct proem (§1) and narrative (§§2-3) and a relatively longer proof section but felt capable of closing his speech extempore. (Compare perhaps - at any rate for comparably abrupt endings - Lys. 16; Isai. 3 and 5; Demosth. 29, 31, 37; [Demosth.] 44, 47, 50.)

Then the proem has an interest out of proportion to its succinctness. 'I am not at a loss for a reason to speak on behalf of Nikias here. He happens [i] to be my friend, you see, and [ii] to be in need, and [iii] to be the victim of injustice, and [iv] to have no ability as a speaker. So on all these counts I am compelled to speak on his behalf'. Both Hiddemann in his dissertation on the proems of early forensic speeches and Lavency in his monograph on logography have disparaged this as a string of commonplaces found in any and all synegoriai , with Lavency going so far as to call it a mechanical reproduction of all the options, suitable for such circumstances, that are listed in Anax. Tech . ⁵⁹ 36.13. Usher has protested that inability at speaking is not one of the topoi listed there. ⁶⁰ This is fair comment; but one must go further. Anaximenes says: 'If you are speaking on another's behalf, say that you are his synegoros [ a ] out of friendship, or [ b ] out of hatred of the opponent, or [ c ] because you were present at the events, or [ d ] in the public interest, or in view of [ e ] the isolation of and [ f ] the injustice being suffered by the man whose synegoros you are'. Of these six possible motivations, only two or at most three correspond to Euth . 1: a = i, f = iii, and ii might be considered a fair approximation to e ; on the other hand b , c , and d are entirely absent.

Consequently, there is no basis for envisaging a collection of proem-arguments appropriate to supporting speakers earlier than Euth . 1 itself. Rather, what Isokrates has done here is to bring together four such arguments which, individually, may already have been tried and tested. Re i, the synegoros as friend, this marks the opening of (what remains of) the undatable Lysias 5. Re iii, being the victim of injustice, see already - albeit not in a proem - the First Tetralogy (Antiph. 2.2.10). And re iv, Nikias' having 'no ability as a speaker', so that his friend is 'compelled' to speak on his behalf, that is the topos of inexperience/inarticulateness discussed earlier. ⁶¹ Perhaps Euth . broke new ground in applying it not to the speaker himself but to his friend, the litigant, but one cannot put that possibility to an adequate test when there is so little synegoric material (Antiph. 4. 4, [Lys.] 20, and compare Aristoph. Vesp . 946-49) from earlier years.

As regards the main body of the speech, note also:

§4: this transition from narrative to proof-section appears to show the influence both of the Tetralogies and of forensic Antiphon (5. 25 for end-of-narrative phraseology; 1.1 and 2.4.1 for affected aporia ; 6.34 - and compare again Lys. 12.3 - for the verb didaskein , 'teach', in the sense of enlightening a jury).

§5, likewise, has a common-knowledge formula which appears to be a topos already (Antiph. 5.11, 32, 82, 6.33), but a dig at the opponent's verbal skills which may not yet have become one. ⁶²

§14 employs a device, hypothetical testimony by the opponent himself, certainly commonplace later ⁶³ but not necessarily at the time of its appearance here and in Lys. 12.77; §14 also has an instance of hypostasis . ⁶⁴

§16 deploys prokatalepsis , familiar enough in itself ⁶⁵ but in a precise form, introduced by isos ('perhaps'), which is first attested here and in Lys. 12.50. ⁶⁶ The same chapter's 'Enough said, then about these matters' ( peri men oun touton hikana ta eiremena ) reappears in Lys. 29.8.

§18 (and again 20.22) characterizes a jury's decision as a 'law' ( nomos ) in a way which may well have inaugurated a topos on the subject (compare Lys. 14.4, Demosth. 19.232, Lyk. Leok . 9).

§19 employs peritrope ⁶⁷ . In pointing this out, Usher calls it 'standard', ⁶⁸ but it is nevertheless unusually subtle (compare above on §5); less, here, a reversal of accusation than of defence ('defending Nikias [from suspicions of vexatious prosecution] in the same way as defending Euthynous is easily done').

§21 uses a phrase, 'to leave himself a defence' ( apologian hupoleipesthai ), again good enough to be imitated by Lysias (7.20). ⁶⁹

Underpinning the battery of these and other short-range weapons was an argumentative strategy grounded, as it had to be, in probabilities, or what are called here (§4) proofs, tekmeria - meaning in this context not specific, tangible proofs but general principles of what could (and could not) be deemed probable. Reasoning of this kind is of course prominent in the Tetralogies, as well as expertly handled by Antiphon, in the Herodes case (Antiph. 5) especially. Euth . as it stands shows no appearance of enlarging the general scope of eikos -based advocacy, if indeed much scope still existed. Rather, within "theoretical" guidelines already well understood, Isokrates was able to introduce some lower-level material apposite to this particular trial: some of it pre-existing (e.g. a line of argument in §8, on the (un)likelihood of seeking to intimidate one's friends, which has a model in Antiph. 1.28); some of it necessarily new, because generated by the political facts of life under the Thirty Tyrants. ⁷⁰ With those facts losing their relevance as time went by, here was a particular facet of Euth . with little to offer to later generations of logographers. Lysias, though, is another matter, and from all points of view one must regret not being able to juxtapose Euth ., in any useful way, with Lysias' fragmentary and undatable Against Theomnestos ( Oxyrhyncus Papyri 1606); this likewise concerned an attempt to recover a monetary deposit made without witnesses.

It should be mentioned in conclusion that this case saw the earliest known occasion when Isokrates and Lysias crossed professional swords with each another; for Lysias appears to have written two speeches for the defendant Euthynous' side of the story. ⁷¹

(iv) Isokrates 18 Against Kallimachos - hereinafter Kall . - is a speech written for someone whose opponent Kallimachos is suing him for (?)damages in the sum of ten thousand drachmas. Isokrates' client (again a rich man) is attempting to thwart Kallimachos' efforts by activating, apparently for the first time, the new blocking procedure of paragraphe : this amongst other things requires him, the erstwhile defendant, to take the initiative and speak first. In that procedural form the case seems to have come to court either late in the archon-year 403/2 or else early in 402/1. ⁷² If this is correct its date is very close to that of Euth ., which is to say earlier than most of the datable speeches of Lysias except - probably - any or all of nos. 12, 21, 31, and 34.

More than three times longer than Euth ., Kall . is also unlike it in having a full, quadripartite structural skeleton: proem, narrative, proofs, epilogue. It also has, in the shape of §4, a brief prothesis section, a formal statement of the case to be answered or (as here) proved. After setting out the proem section of his composite techne Stephen Usher remarked that the absence of a prothesis was its single most noteworthy feature. ⁷³ By implication, therefore, it is his view that the prothesis in Antiph. 5.8 ⁷⁴ is innovatory. Other early protheseis noted by him occur in Andok. 1.10 and in Lys. 31.5-7 and. 24.4-5. ⁷⁵ Kall . 4 he ignores. It nevertheless predates certainly the Andokidean specimen and quite possibly either or both of the others.

In the speech as a whole we find Isokrates, according to Usher, demonstrating 'his acquaintance with the rhetorical devices in current use at the time'. ⁷⁶ This is fair comment in respect of the four such devices specified: hypothetical inversion in §§1, 37, and 51; paraleipsis in §10; prokatalepsis in §13; and pathetic paradox ⁷⁷ in §§'15' (= 18?), 21, 24-6, and 39. These are presumably instances of Isokrates being 'intelligent if not particularly inventive'. Perhaps, though, there is some inventiveness in his twice employing, towards the end of this long speech (§§52 and 58), the topos of superabundance which Usher regards as appropriate for proems ⁷⁸ , especially as they are combined here with other rhetorical devices, aporia (§52) and, again, paraleipsis (§58). ⁷⁹

The varied uses of narrative in Kall . also deserve comment. One appears almost at the outset (§2), within the proem: Isokrates' view that it was wise to begin by ensuring that the jurors understood Archinos' law on paragraphe , under which they were to act, entails there a brief 'preliminary narrative' (Usher) to tell or remind them how it had come about. And later on, long after the principal narrative section (§§5-12) and the proofs which flow from it, come two more, shorter stretches of narrative with supporting functions. Each follows one of the enhanced superabundance passages mentioned above: §§52-54 is an episode of alleged multiple corruption of witnesses, chosen to illustrate Kallimachos' bad character and untrustworthiness; then §§58-65 (after the battery of rhetorical questions which has filled §§55-57) depicts the speaker himself as public benefactor and war-hero, crowned, together with his brother, for defiant naval exploits after the Aigospotamoi disaster. (The matter of the crowning leads, in §66, to a trope - 'What has happened to us is the opposite of what others find' - used by Isokrates again (19.2, and in the faux -forensic 15.162) but not initiated by him (see already [Lys.] 20.35). The artful purpose it serves here may nevertheless have been novel: pointing out that the episode just recounted has already brought recognition and reward, so that the jurors, standing for the whole demos, need simply to remember and endorse a view of the speaker that they have already put on record.)

Other points:

§1: the 'so that none of you is surprised' formulation here was used by Lysias (fr.78 Thalheim) in the opening of his incompletely-preserved speech For Pherenikos on Androkleides' estate , written between 382 and 379.

§2: for human action 'more x than vengeance from the gods', either this passage ('more immediate') or Lys. 12.96 ('more firm', of the Thirty's view of their own rule) surely prompted the other.

§9: to assert that 'the outcome of trial by jury is often unexpected' ( polla para gnomen en tois dikasteriois apobainei ) may find an echo in Lys. 3.2, a decade or so later ('if judgement on me were going to be pronounced by any others [sc. than you Areiopagites] I would be very fearful of the risk, seeing what machinations and chances sometimes occur, resulting in many unexpected outcomes for those on trial' - hoste polla kai paragnomen apobainein tois kinduneuousin ). On the other hand, if Kallimachos' friends really did voice this point of view it may already have been commonplace. (For para gnomen apobainein cf. anyway, in another genre, Thucydides 5.14.3, on the outcome of the Archidamian War from Sparta's perspective.)

§13: for the prokatalepsis formula with 'I gather' ( punthanomai ), more confident-sounding than the equivalent 'perhaps' versions, compare Lys. 12.62.

§34: informing a jury that its decision should not be determined by gratitude for services rendered ( charis ) looks like a novel inversion of normal appeals (as made, indeed, later: §§58, 62, 67).

§35: the phrase 'he will have a dreadful, cruel experience' ( deina kai schetlia peisetai ; cf. 15.130) is a clear borrowing from Antiphon (6.43 & 49).

§39: this 'can one help but think it stupid?' rhetorical question spurns the normal forensic pos ouk atopon in favour of a pos ouk alogon unprecedented (and unparalleled) in the genre.

§51: either this ( dikas hoias dedikastai ) or the explicit Lys. 21.18 (it cannot be shown that aischras ['disgraceful'] dikas dedikasmai ) appears to be the model for the other.

§56: the idiom 'from what, do you imagine, would he shrink...?' ( tinos an humin aposchesthai etc.), again in 19.15 (on its way to becoming a fourth-century courtroom cliché: compare Demosth. 24.65 & 201, [Demosth.] 40.57), appears for the first time either here or else in Lys. 24.2 ( tinos an humin ho toioutos aposchesthai dokei ponerias ).

(v) Isokrates 20 Against Lochites - hereinafter Loch . - was written for 'a working man, one of the masses' (§19) who is prosecuting his opponent, rich young Lochites, for battery ( aikeia ). Precise dating-criteria are lacking, but the early 390s look about right. ⁸⁰ That being so, further models available to Isokrates included Lysias 13 and 30, and probably 25 and 32; also [Lysias] 6, and Andokides 1.

After the full length of Kall ., Loch . reverts to Euth .-like brevity; but whereas with Euth. the only part which orthodox opinion has taken to be missing is an epilogue, Loch . appears to be drastically acephalous. Its opening words are: 'So then: that Lochites struck me - and struck the first blow - everyone who was there has testified to you'. What follows are twenty-two chapters of amplication ( auxesis ) and intensification ( deinosis ) of the issues raised, and a brief, concluding invitation to supporting speakers to add whatever points they can. That this "published" version of the speech does omit its earlier and supposedly less interesting parts - proem and narrative as well as the testimony section alluded to - has indeed been almost universally taken for granted; yet it may be that the basis for this is unsound. ⁸¹ Since logographers surely provided what their clients asked for and paid for, it cannot be beyond the bounds of possibility that here (and compare On the Chariot-Team : see section vi below) Lochites' victim wanted from Isokrates precisely what we see here and no more, ⁸² an expertly rhetorical piece of auxesis and deinosis to follow a story that he himself was confident of telling and the testimony of witnesses that he himself was capable of introducing. (Alternatively his witnesses told his story for him - in which case Loch . may to that extent have served as a model, a few years later, for Lysias 17.2, where the witnesses are called 'to narrate' as well as to testify.)

Turning from form to substance, Usher sees nothing of particular note here except the 'novel' hyperbole of §6, which aims to excite the same indignation about hybris as about theft, even the theft of sacred objects ( hierosylia ). ⁸³ One could add §10: accusing the opponent of contempt for the laws ( kataphronein ton nomon ), again in §22 and in 16.2, certainly becomes a cliché later (e.g. Demosth. 42.2; [Demosth.] 43.72, 50.65, 56.10, 59.12 & 77; Dein. 1.85), but I know of no instances earlier. Beyond that, in a larger sense there must be a case for seeing novelty in Loch .'s entire strategy, that of making the jury think more about a charge not at issue ( hybris ) than the one that was (mere aikeia ). While leading fourth-century logographers certainly attempted this after Isokrates (Demosthenes 54, and apparently Hypereides Against Mantitheos : see fr.120 Jensen), nobody is known to have done it before him. Similar strategies appear to be discernible in two lost prosecution-speeches of Lysias, Against Isokrates (see fr.44 Thalheim) and Against T(e)isis (see Dion. Hal. de Demosth . 11), but their dates cannot be determined.

The closing chapters of the speech are noteworthy too, on a tradition vs. originality measure. Right at the end, in §22, the apparently spontaneous call to synegoroi (if that is indeed what is meant by tis ton paronton , 'anyone present') has a model in Andok. 1.23 & 35, insofar as one might not suspect it to be already hallowed by convention; but before this, in §21, there is a plea to the jurors to imagine themselves, when they vote, in the litigant's shoes which appears to originate either here or in Lys. 1.1; ⁸⁴ and the bold step, in §19, of telling the jurors that an acquittal of Lochites out of political prejudice would mean positively dishonouring themselves ( humas...an autous atimazoit ') is, as far as I know, unparalleled.

(vi) Isokrates 16 On the Chariot-Team ( peri tou zeugous ) - hereinafter Zeug . - acquired that title in later antiquity by dint of its general subject-matter; it is actually a defence of the younger Alkibiades on a charge of (?)damages originally incurred by his notorious father and namesake, now dead, in respect of an entry in the 416 four-horse Olympic chariot race. A combination of upper and lower termini enable the date of the trial to be fixed with some confidence at 397 or 396. ⁸⁵

Of all the 16-21 group, Zeug . is the speech which has generated the most modern discussion for the singularity it displays. Is it, as it stands, a viable forensic speech at all? Some have denied that it can be, on two interconnected counts: (1) like Loch . it appears to begin in medias res ('So as regards the team of horses - that it was in my father's possession not because he had robbed Teisias but because he had bought it from the city of Argos - you have heard both the ambassadors who have come from there and the others who know the situation testify'), with everything before this jettisoned for the "published" version; and (2) this version, in terms of both language and content, comes across more like an encomium of the elder Alkibiades than anything tolerable in an Athenian jurycourt. ⁸⁶ An allied complication (3) is presented by nineteenth-century theories which saw both Zeug . and Lysias 14 as having undergone post-trial revisions, in response to each other, before reaching their present form and content. As these are issues I cannot deal with adequately here, it must suffice to cite the best modern treatment of them, in David Gribble's Alcibiades and Athens , ⁸⁷ and to assert, summarily, that I see no good reason to accept any of the three propositions indicated. Concerning 3: since there are no phenomena which demand such hypothetical revisions to account for them, the hypothesis is otiose. Concerning 2: while it is clear (especially in Gribble's finely-nuanced discussion) that sections of Zeug . do, quite literally, show some of the formal characteristics of the genos enkomiastikon , the idea that they can only have been added or reshaped in that genre after the trial is a point on which I believe we should feel less certain than some do - because such certainty lays claim to correspondingly more certainty about what was and was not 'tolerable in an Athenian jurycourt' than I consider attainable. (It also discounts a priori the capacity of an innovative logographers to innovate.) And concerning 1: my position on Loch . has already anticipated my position here. As Josef Zycha pointed out, Zeug . as we have it is incomplete only in the sense that it does not encompass everything Isokrates' client (and his witnesses) said at the trial; it may perfectly well preserve everything he had asked Isokrates to prepare for him beforehand. ⁸⁸

Obviously enough, therefore, it is above all else one's stance on these three issues, individually and collectively, which determines the extent of generic innovation one acknowledges in Zeug . Those who do accept any or all of the three propositions outlined at the beginning of the last paragraph will be disposed to minimize it - or at any rate to say (on the supposition that what we have bears little resemblance to what was delivered) that innovation cannot be usefully estimated. Those unconvinced, as I am, by any or all of the three propositions will be commensurately inclined to see here a forensic effort which, whatever its success (we do not know it) in acquitting Isokrates' client, was an attempt to respond to unusual circumstances with an unusual, indeed unique, defence-speech.

Its frame - a fact sometimes overlooked - is one of material (§§1-3 and §§42-50) which could not be more directly relevant to the younger Alkibiades and his case. Within that frame, Isokrates' concentration on his client's father has a precedent of sorts in Antiph. 5.74-80 but extends that strategy almost beyond recognition by the sheer length and weight of §§4-41. And this section too has a periphery and a core. What is said about the elder Alkibiades in §§4-24 and again in §§36-41 relates largely to his behaviour during the latter part of the Peloponnesian War, and as such - whether palatable or not to a jury of the mid 390s - was material any logographer in Isokrates' position would surely have had to include. By contrast §§25-35, while admittedly culminating in the 416 Olympics where the chariot-team at issue had run, approach that occasion via a eulogistic review of the whole personal and familial history of Alkibiades from earliest times. This is the section most redolent, in language as well as content, of the genos enkomiastikon ; yet even Gribble, who explores this matter so judiciously, puts on record his view (which I share) that §§25-35 'do not abandon their prima facie purpose of defending the personal life of Alkibiades before a democratic court'. ⁸⁹

Against this background, two smaller-scale instances of possible novelty and/or influentiality in the opening chapters of Zeug . may be noted in brief: ⁹⁰

§2: the speaker complains here that the present suit is merely the latest in which his opponents have been 'spending more time slandering my father than explaining the substance of their affidavits ( antomosiai )'. Later at least, irrelevance in a jurycourt breached an oath by which litigants bound themselves to keep to the point (Aristotle, Ath.Pol. 67.1). Whether this oath existed at the time of Zeug . is uncertain; what is, nevertheless, clear is that the present passage is an early example of the forensic tactic of accusing one's opponents of indulging in the extraneous. Indeed, if Antiph. 5.11 is set aside as a special case (because in homicide trials the di omosia oath was peculiarly severe in this regard) it is the first instance I can find; and Lys. 3.46 is the second.

§5: here and again in §§21, 36, and 46 there are close verbal and substantive correspondences with passages in Lys. 18.1-5. ⁹¹ Zeug . is perhaps the earlier of the two speeches, though that is far from demonstrable (Lys. 18 appears to predate the Corinthian War, but by how much is not clear). Lys. 18.3 shares with Zeug . 21 the purpose of reviewing the military achievements of a leading figure of the Peloponnesian War era (Nikias in Lysias' case), and Lys. 12.39 suggests that in generic terms this may already have been hackneyed material. There are no such indications, though, in respect of the other three pairs of passages.

(vii) Isokrates 17, the Trapezitikos ( Banking Speech ) - hereinafter Trap. - could well have been transmitted to us under the more workmanlike name Against Pasion ; the title it acquired, instead, reflects the well-known defendant's profession. The ex-slave banker Pasion, not yet a naturalized Athenian at this stage of his career, is being prosecuted by another non-citizen, a rich young man (we never learn his name, only that of his father Sopaios) from the Black Sea kingdom of Bosporos/Pontos. The charge is that Pasion, having helped the young man conceal money which would otherwise have had to be surrendered to his home authorities, subsequently appropriated it by denying all knowledge of it. The case came to court after (§36) the end of the Spartan naval hegemony in 394; very shortly after if King Satyros of Pontos, still alive here, died in 393/2; possibly somewhat later if Satyros' reign lasted until 389/8. ⁹²

After the peculiar features of Loch . and, especially, Zeug ., Trap . reverts to the more standard shape and fully-articulated structure - including a particularly long, continuous narrative (§§3-23) - already used in Kall . Usher calls Trap . 'the most accomplished of Isocrates' forensic speeches'. ⁹³ My own opinion is that Trap . and Aig . (see the next section) run each other close for that accolade; but at any rate the general merits of what Isokrates provided for his fee here have been pretty universally acknowledged from Dionysios of Halikarnassos to the present day. ⁹⁴

Despite their manifest differences in scale and accomplishment, Trap . recalls Euth . to the extent that, without witnesses of what had passed between the litigants, the outcome would hinge upon which of them made the more credible impression on the jury (and in the process undermined the credibility of his opponent). Direct and indirect presentation of character, in short, was called for. Usher remarks that '[t]he case seems tailor-made for techniques pioneered by Lysias', which is (possibly) fair comment. Usher goes on to ask why the young Bosporan did not employ Lysias ' logographic services, and hypothesizes that 'Lysias would have been reluctant to assist litigation against a fellow-metic who had achieved a status in Athenian society similar to that of his own family'. This too sounds reasonable (for all that the son of Sopaios, too, was a metic: §41); and furthermore the implication, for Lysias' natural sympathies, in what Usher says can of course find corroboration if, as in the Nikias vs . Euthynous case (section iii above), Isokrates and Lysias were on opposing sides here. ⁹⁵

Casting about for Lysianic models for the treatment of the opponent here, Usher considers what is said about the Thirty in Lysias 12, but immediately (and rightly) points out that 'Isocrates' task here requires greater tact and subtlety. Pasion was an associate of wealthy men, and consequently influential'. Pasion also, I would add, needed to retain enough surface credibility, especially early in the speech, to prevent the jurors asking themselves why the plaintiff should ever have trusted him and confided in him. Consequently Pasion is, as depicted, greedy, unscrupulous, and (§18) cringingly cowardly when forced into a corner; but he is also the surrogate father-figure introduced early on (§6).

By the same token the young Bosporan himself is subtly portrayed. On the one hand he is nervous and deferential, as befits both his age and his non-citizen status. This side of his persona will presumably have been reinforced in aspects of delivery and body-language now beyond recovery, but one small touch is there, from start (§1) almost to finish (§53), in the words themselves. I refer to the frequency ⁹⁶ with which he uses the (standard) formula 'men of the jury', o andres dikastai : twenty-six times in all, almost a ratio of once every two chapters, as opposed to once - Kall . 21 - in all the other four Athenian speeches put together. ⁹⁷ Yet all the while he is a man with his reputation at stake (§1). Any of the jurors disposed to wonder, at this initial stage, quite what reputation such a man was concerned to protect will have had their question implicitly answered as the speech unfolded. By §56 it had done so, and could perfectly well have ended there - but Isokrates had kept one telling argument up his sleeve and now at last brings it to bear (§§57-58): 'you should also remember Satyros and my father', who hold the Athenians in the highest esteem and have often demonstrated this by granting Athens preferential rights in grain shipping. Usher calls this 'an informal ending'. This I interpret as meaning that it stands out from the formalities found in more conventional epilogues (e.g., as he has earlier observed, ⁹⁸ Zeug .). I should prefer to say that its sudden abandonment of the subtlety which had characterized most of the rest of the speech shows Isokrates once again in good genre-expanding form. (Lysias 22 Against the Grainsellers , a decade later, had no such subtlety to abandon but did end in a similar appeal to the stomach, via the wallet: 'If you convict them you will be doing what is just and you will buy grain more cheaply; if not, it will be more expensive'. And compare likewise Demosth. 20.29-35, again on the Bosporos.)

Note also:

§1: the very opening words of the speech ( ho men agon moi megas estin , 'This trial is a big thing for me') may have influenced Lys. 10.31 ( ouk an genoito toutou meizon agon moi , '...there could not be a bigger trial for me than this'), just a few years later.

§5: the narrative-enlivening present tenses which begin here, and the later oscillation between past and present, perhaps show the influence of Andok 1.11-18. ⁹⁹

§26: ti mathontes , 'What were we thinking of?', is a colloquial idiom from the comic stage (Aristophanes Clouds 402, Lysistrata 599, Ploutos 908), otherwise rare in oratory; see merely Demosth. 29.20.

§54: that there is 'nothing more credible or more true than torture' is a sentiment with fifth-century antecedents (Antiph. 1.8, 6.25), but the particularly emphatic form it sometimes took on in the fourth century (Isai. 8.12, Demosth. 30.37; compare Aristot. Rhet . 1376b30-1 and Anax. Tech . 16.1) makes its first appearance here, and it has been reasonably suggested ¹⁰⁰ that this is no accident.

(viii) Isokrates 19, the Aiginetikos ( Aiginetan Speech ) - hereinafter Aig . - acquired that title from its place of delivery and (thus) judicial context. As is routinely observed, it is indeed the only extant forensic speech written for a court outside Athens. Aigina provides that place and context because it became the home of two displaced aristocrats from Siphnos: one the speaker, Isokrates' client; the other his boyhood friend Thrasylochos. Thrasylochos' will has named the speaker his heir as well as his adoptive son; but, in a procedure apparently akin to the Athenian diadikasia , an elder, non-uterine half-sister of Thrasylochos is seeking to have this overruled on grounds of natural justice. All this is happening in, perhaps, 391 or 390, though the early 380s cannot be ruled out. ¹⁰¹

George Kennedy judges Aig . 'probably the best of the six, persuasive in argument, fitted out with an ethopoiia [character-drawing] worthy of Lysias, and achieving a natural and effective pathos as the speaker narrates his faithful care of the friend whose estate he claims'. ¹⁰² In fact, between the formalities of proem (§§1-4) and epilogue (§§47-51), stretches of narrative and proof sections generate each other in a flexible and highly effective manner. Antiphon as well as Lysias had shown the way here, but that would be no basis on which to deny Isokrates credit for the skill with which, after a dozen years in the courts, he could match their efforts.

In terms of Kennedy's 'ethopoiia', the character-drawing task here was arguably simpler than it had been it Trap ., where the portrayals of plaintiff and defendant alike called for some quite subtle nuances. No such need arose here. The speaker sketches a highly prejudicial picture of his opponent (see esp. §§17, 30-3, 40-1) while building up the more elaborate, sympathetic one of himself. As the woman was not disputing the formal standing of the will per se (§§15, 34, 50), such a contest between claims based on blood-relationship and on a testamentary gift was a matter less of abstract principle than of argumentative practicality. To whom had the testator, Thrasylochos, been closer and better disposed? Which of the claimants had treated him better in life and so had the stronger moral claim to inherit from him? That was the crucial area of dispute, with battle joined even in the proem (§§2-3). Although the modern scholarly consensus that Isokrates' client was successful ¹⁰³ ignores the possibility that the woman too may have had a good speechwriter to present her case and her character, what is undeniable is that the speaker's plea to allow the will to prevail could hardly have been made with a more impressive array of skills. Had Isokrates learned anything from the inheritance-speeches of Lysias? As they are all lost, ¹⁰⁴ it is impossible to know; and equally impossible, therefore, to gauge any influence they exerted on Isaios. All that can safely be said is that when Isaios, Isokrates' pupil, came to take on Athenian cases of a comparable kind (see esp. Isai. 1, but also 4, 9, and 10) he had, in Aig ., one outstanding example of how it could be done but - as his own tactical approach ultimately showed - did not have to be.

Also worth nothing:

§1: for what Wyse (commenting on Isai. 7.1) ¹⁰⁶ calls this 'pose of injured innocence', a speaker claiming he has been sadly disabused of a former opinion, Isokrates may have adopted Lysianic models: see Lys. 5.2, 7.1, 9.3, 31.1.

§2: 'what happened to me is the opposite of what most people experience' may also draw on Lysias (see above on Kall . 66), and indeed the same goes for the particular 'what' here, feeling 'almost grateful' to one's opponents: see Lys. 24.1 and 16.1.

§14: personifying a law as someone's 'advocate', syndikos , is an imaginative conceit. The closest parallel I have identified is also a precedent: Pindar, Olympian Ode 9. 98-99, on the tomb of Iolaos; ¹⁰⁷ compare also Aischin. 3.37 ('I will proffer your own laws as my synegoroi '). More broadly, for impersonal plea-intensifiers, see e.g. Demosth. 21.188 (the laws and the dikastic oath), Lyk. Leok . 150 ( chora , trees, harbours, dockyards, walls, temples, sanctuaries), and Dein. 1.109-10 ( chora , sacrifices, tombs).

§28: if, the speaker tells the jury, he could adequately convey to them how well he had tended his sick friend, oud' an ten phonen humas anaschesthai ton antidikon . The Budé editor, Mathieu, renders this 'vous ne laisseriez pas même parler mes adversaires', and describes it as a cliché in Athenian lawcourts 'et sans doute aussi ailleurs'. We are in truth in no position to know what, if any, topoi Aiginetan jurors c.390 were accustomed to hearing; in any event a better translation, in my opinion, is 'you would not find even the sound of my opponents' voice bearable', and this is more appropriately seen as the first appearance of a purely Isokratean topos (cf. 8.3, 12.140, 15.22).

§31: by claiming Thrasylochos' property within days of his burial the woman behaved 'as if it were his money rather than him she were related to' ( hosper ton chrematon all' ouk ekeinou sungenes ousa ). Thanks to the Stromata/Stromateis of Clement of Alexandria, we know (6.21.1-2 Stählin) that a very similar but arguably more polished version of this appeared in one of the lost 'orphan speeches' of Lysias (fr.84 Thalheim): kai phaneros gegonen ou ton somaton sungenes on alla ton chrematon . Mathieu suggests that the phrase was proverbial; yet Clement not only thought the resemblance between the Isokrates and Lysias passages noteworthy but did so as part of a long list of literary 'thefts'; and as he quotes Isokrates first it would be reasonable to infer that Lysias was the thief.

§42: 'if the dead have any perception of what is happening here (sc. on earth)' became a conventional proviso both in Isokrates' own later writings (9.2, 14.61) and elsewhere: Demosthenes (20.87), Lykourgos ( Leok . 136), Hypereides ( Epitaphios 43). ¹⁰⁸ Did Isokrates originate it? The Lykourgos passage suggests as much, in being manifestly modelled on this section of Aig .: repeated there is not only the general proviso but also, from §44, the prediction that the dead (but sentient) individual in question would be the 'harshest judge', chalepotatos dikastes , of what he saw. ¹⁰⁹

Epilogue

I have not thought it necessary, in sections iii-viii, to give more than an occasional instance of Isokrates drawing on the Tetralogies and/or forensic Antiphon. That he did exploit the resources of his emerging profession, both the ones we know and the ones we can only imagine, as they existed in the late fifth century is in fact clear, and unsurprising. To make the case for Isokrates as a writer of more important and more innovative lawcourt speeches than he is normally given credit for need not be built on a blinkered attempt to deny their indebtedness to already-existing conventions of the genre. Rather, in Stephen Usher's thumbnail sketch of one who 'knows how to use existing techniques and topoi but does not add significantly to them' it is not the first but the second part that I have sought to challenge.

Doing so, as I have acknowledged, is not always easy. It would be much easier if we had exact dates for 16-21 and for all the speeches of the Lysianic corpus. And it would be unrecognizably easier if, in addition, other (lost) speeches had survived, so making the matter of separating originality from tradition less of a guessing-game. Without either of these benefits, the methodological Scylla and Charybdis of the exercise ¹¹⁰ are: ( a ) no phenomenon existed before it is extant; ( b ) every phenomenon existed before it is extant. Extreme a is immediately discernible as facile; but extreme b is (I would suggest) no less dangerous, lurking as it does beneath the seemingly sophisticated surface of the generic approach, and setting its face against any idea that we might occasionally be in a position equivalent to that of Newtonian rather than quantum physics - observing process itself, not merely its aftermath. In any event I have tried my best here to avoid both extremes, inhabiting instead a middle ground. ¹¹¹ That is the terrain which affords the most balanced view of Athenian forensic oratory in the late fifth and early fourth centuries. When the democratic lawcourts of Athens resumed their normal business in 403/2 (after the dislocations of military defeat, political totalitarianism, and bloody civil war), those who wrote the speeches for it took their place in a genre whose conventions were, as far as we can tell, solidifying but not yet solid; and the continuing - expanding - flexibility of the craft was further guaranteed by the happy coincidence, while it lasted, of (at least) two skilled and versatile practictioners who learned and borrowed from each other. ^{112 112}

¹ All three-digit dates hereinafter are BC(E); and the same applies to the 'fourth' (or whatever) century.

² In Anglophone scholarship at least, pioneering pride of place must go to W. Wyse, The Speeches of Isaeus (Cambridge 1904; reprinted Hildesheim 1967), still indispensable in its field.

³ Some recent specimens: K. A. Kapparis, Apollodoros: Against Neaira [D.59] (Berlin 1999); D. M. MacDowell, Demosthenes: On the False Embassy (Oxford 2000); D. Whitehead, Hypereides: the forensic speeches (Oxford 2000); N. R. E. Fisher, Aeschines: Against Timarchos (Oxford 2001).

⁴ Only one of the group, no.17, has a commentary on anything like the scale I am speaking of, and even this is from various standpoints inaccessible: J. C. A. M. Bongenaar, Isocrates' trapeziticus vertaald en toegelicht (Utrecht 1933). An all-embracing commentary on 16-21 as a group is what is needed; so (in collaboration with Dr Lene Rubinstein, Royal Holloway, University of London) that is what I am embarked upon - with the present paper offered as, in effect, prolegomena to it. See further, n.112.

⁵ Thus in the sequence followed in [Plutarch]'s Lives of the Ten Orators : Antiphon, Andokides, Lysias, Isokrates, Isaios, Aischines, Lykourgos, Demosthenes, Hypereides, Deinarchos. That there were other sequences, and indeed other names (see in brief C. Carey in S. Hornblower & A. Spawforth (eds.), The Oxford Classical Dictionary (3rd edition, Oxford 1996) p. 212) is not crucial to my purposes here, which will simply aim to correct - in part 2 below - the tendency inherent in any ordering to impose a misleading chronological sequence and ignore overlap and simultaneity.

⁶ Whitehead (n. 3 above) p. 4 with n. 16.

⁷ T. Cole, The Origins of Rhetoric in Ancient Greece (Baltimore & London 1991) - hereinafter Cole, Origins .

⁸ E. Schiappa, The Beginnings of Rhetorical Theory in Classical Greece (New Haven & London 1999).

⁹ S. Usher, review of Cole, Origins, in Classical Review 42 (1992) pp. 58-60; and now, at length, Greek Oratory: tradition and originality (Oxford 1999; paperback edition with typographical corrections and additional bibliography 2001) - hereinafter Usher, Oratory .

¹⁰ For a helpful lead see the review of Cole, Origins , by D. A. Russell in Journal of Hellenic Studies 112 (1992) pp. 185-86.

¹¹ For this see e.g. A. Gercke, 'Die alte techne rhetorike und ihre Gegner', Hermes 32 (1897) pp. 341-81, at 348-59; G. A. Kennedy, 'The earliest rhetorical handbooks', American Journal of Philology 80 (1959) pp. 169-78; K. Barwick, 'Das Problem der Isokrateischen Techne', Philologus 107 (1963) pp. 43-60; and now (with his own slant on the matter) Cole, Origins chaps. 5-6.

¹² Usher, Oratory p. 2 with n. 3.

¹³ Quotation from p. 58 of the review of Cole, Origins (see n. 9 above). For reasons that will emerge, I would wish to say 'Antiphon, Lysias and Isokrates'.

¹⁴ M. Heath, Hermogenes: On Issues (Oxford 1995) p. 19.

¹⁵ Usher, Oratory p. 16 with n. 47, p. 100 with n. 161. (My references to the Tetralogies, here and passim , are the normal ones which include them, as speeches 2-4, in an overall Antiphontean sequence of six; but note that Usher cites them, self-containedly, as 1-3.)

¹⁶ Usher, Oratory p. 1.

¹⁷ Usher, Oratory pp. 6-16 and 355-59 (Appendix A), dating them in the late 430s. Cf. e.g. M. Gagarin, Antiphon: the speeches (Cambridge 1997) p. 8; he puts them in the middle of the fifth century. For a very different assessment of the Tetralogies, giving rise to a (much) later dating, see E. M. Carawan, 'The Tetralogies and Athenian homicide trials', American Journal of Philology 114 (1993) pp. 235-70, developed further in his Rhetoric and the Law of Draco (Oxford 1998) chap. 5.

¹⁸ Proviso and qualification are necessary because of the thesis of Cole, Rhetoric , that the "Old Oligarch" ([Xenophon], Athenaion Politeia ) and the speeches in Thucydides are also, in their way, technai . See also I. M. Plant, 'The influence of forensic oratory on Thucydides' principles of method', Classical Quarterly 49 (1999) pp. 62-73. Again, I forbear to pursue these matters here.

¹⁹ Usher, Oratory pp. 21-2, after the 'search' of pp. 1-21.

²⁰ Usher, Oratory pp. 22-3, 23-4, 24-5, and 25-6 respectively. To avoid a surfeit of page-references, I specify them from now on only if they fall outside these sections.

²¹ See e.g. Cole, Origins pp. 23-27.

²² Usher, Oratory p. 122. On narrative in Isokrates 16-21 see part 2 below, esp. sections iv, vii, and viii. It is revealing of Usher's handling of 'Isocrates Logographos' that Isokrates does not figure in the index entry on 'narrative'; indeed the same is true, where 16-21 are concerned, of those on 'prooemium' and 'epilogue'.

²³ 'First of all, whenever somebody said in the Assembly "Demos, I am your lover and I cherish you, and I alone care for you and advise you", whenever anybody used proems like that you would flap your wings and toss your horns'.

²⁴ Odysseus: 'I could say much in answer to his words, if I had time; but as it is I can deploy one argument only'.

²⁵ Hekabe to Polymestor: 'It was the gold, if you care to speak the truth, that killed my son, and what you gained from it'.

²⁶ 'Do not hold it against me, men of the audience, if, though a beggar ( ptochos ), I propose to speak, amongst Athenians, about the polis'. Usher attempts to forestall objections on these grounds by twice calling what we see here a 'variant' on the topos of inexperience. But when he links Ach . 496-8 with the opening of Demosthenes' First Philippic (Demosth. 4.1), that underlines its appropriateness to deliberative oratory and the protocols of venturing to participate in it.

²⁷ W. S. Barrett, Euripides: Hippolytos (Oxford 1964) p. 348; F. Solmsen, review of Barrett in American Journal of Philology 88 (1967) pp. 86-93, at 88-9; M. Lloyd, The Agon in Euripides (Oxford 1992) - hereinafter Lloyd, Agon - p. 48.

²⁸ Barrett loc.cit. (in preceding note): 'Once again the words are ordinarily meant to win the jury's sympathy; once again Hipp. seems merely to be implying his distaste'.

²⁹ See e.g. Usher, Oratory pp. 58-64.

³⁰ Aristot. Rhet . '2.12.14' (which should perhaps be 2.12-14) is added, but it is hard to see why, when the exercise is one of finding pre-420 evidence.

³¹ A figure in which the opponent is described as having reached 'such a pitch of audacity (or whatever) that...' ( eis touto ( tolmes , etc.) hoste... ).

³² And Soph. Ajax 442-53, cited on his p. 17, could have been mentioned again here.

³³ Lloyd, Agon pp. 31-32 adds Andromache 215-19 and 662-67 and Supplices 537-48, as well as post-420 instances.

³⁴ Note, however, that the authenticity of lines 1012-15 has been suspected: see Barrett ad loc. On hypophora in Euripides see generally Lloyd, Agon pp. 29-30, who also cites Soph. Ajax 457-70 and OT 1375-86 and Eur. Alk . 1049-61 and Med . 502-8.

³⁵ J. Wilkins, Euripides: Heraclidae (Oxford 1993) p. 179 adds Aisch. Ag. 36 and four more Euripidean instances: El . 1246, IT 37, Hel. 157, and Or . 16. All four, though, are later than Usher's 420 watershed, and the first two especially, as I read them, depict the characters in question not so much artfully hinting at what they could say under other circumstances as fearful of saying anything at all.

³⁶ That it did is (well) argued by E. M. Carawan, ' Erotesis : interrogation in the courts of fourth-century Athens', Greek, Roman and Byzantine Studies 24 (1983) pp. 209-26.

³⁷ Cited earlier (his p. 20) by Usher, it could have been mentioned again here.

³⁸ Usher's reference is ' Suppl .' 962', but read Hipp . (This error - the result, I imagine, of Hi(ketides)/Hi(ppolytos) confusion - appeared several times in the hardback edition; elsewhere it has been tacitly corrected.)

³⁹ Lloyd, Agon p. 31.

⁴⁰ C. Collard, Euripides: Supplices (Groningen 1975) vol.2 pp.156-57.

⁴¹ Lloyd, Agon p. 47, quoted with approval by Usher, Oratory p. 19 n. 54.

⁴² So Usher, Oratory pp. 40-1, summarizing pp. 28-40. On narrative see already section iv, above.

⁴³ See n. 5 above.

⁴⁴ See e.g. J. K. Davies, Athenian Propertied Families 600-300 BC (Oxford 1971) pp. 587-89.

⁴⁵ D. M. MacDowell, Andokides: On the Mysteries (Oxford 1962) - hereinafter MacDowell, Andokides - pp. 204-5.

⁴⁶ See most recently S. C. Todd, The Oratory of Classical Greece, 2: Lysias (Austin 2000) - hereinafter Todd, Lysias.

⁴⁷ On these dates - none of them in fact very controversial - see further, in brief, sections iii-viii below.

⁴⁸ My repeated 'at least' reflects the fact that several Lysianic speeches are undatable within the overall 403/2-c.380 period; and ' corpus Lysiacum ' is acknowledgement that more speeches (than no. 20) attributed to Lysias may well not be by him. For my purposes here the first of these things is more regrettable than the second. The twenty-one speeches I have in mind are nos. 3, 6, 7, 9, 12, 13, 14, 15, 16, 17, 18, 19, 21, 25, 27, 28, 29, 30, 31, 32, and 34.

⁴⁹ See generally MacDowell, Andokides pp. 18-23; cf. Usher, Oratory pp. 42-53, esp.44-49.

⁵⁰ That Isokrates 16-21 are contemporary with (early) Lysias is noted by Usher, Oratory p. 77 n. 85, reiterated at p. 116: 'This corpusculum is...contemporary with much of the Lysianic corpus, and must be examined in close proximity with it'. But he does not really do this. (In any case stray comments such as the one on p. 94 - Lysias 16, with its Corinthian War background, 'probably' later than the earliest of the Isokratean group - show an insecure grip on chronology.) A scholar who does, albeit briefly, juxtapose Lysias and Isokrates is J. J. Bateman, 'Some aspects of Lysias' argumentation', Phoenix 16 (1962) pp. 157-77, at 158, 159, 161, 167 with n. 19.

⁵¹ Usher, Oratory pp. 116-17, abridged.

⁵² Usher, Oratory pp. 125-26. (He treats post-forensic Isokrates - 'Isocrates Sophistes' as opposed to 'Isocrates Logographos' - in his chap. 9.)

⁵³ For present purposes the intermittently-aired question of whether 16-21 are authentic forensic speeches or abstract exercises is a side issue. A recent attempt - utterly unconvincing, in my opinion - to revive the latter view in modern dress has been made by Y. L. Too, The Rhetoric of Identity in Isocrates (Cambridge 1995).

⁵⁴ See e.g. 8.129-30, 12.11 & 240, 13.19-20, 15.3 & 30-38.

⁵⁵ Some examples: 16.5 → 4.47, 6.15, etc.; 16.27 → 7.16 and 15.299; 16.28 → 15.211; 16.42 → 7.69; 18.41 → 15.91; 19.2 → 3.29; 19.25 → 12.83; 19.27 → 14.47; 19.42 → 9.2 (and 14.61); 19.51 → 15.23; 20.10 → 16.42; 20.11 → 7.67; 21.12 → 15.160.

⁵⁶ Again, some examples (of apparently unconscious verbal and phraseological echoes): 16.21 → 6.111; 16.23 → 15.151 & 258; 16.32 → 10.22; 16.38 → 4.167; 16.39 → 5.110; 17.1 → 8.80; 17.4 → 7.32; 17.45 → 9.27; 17.47 → 15.30; 18.5 → 9.19 and 12.49; 18.10 → 15.179; 18.17 → 4.129; 18.32 → 6.92; 18.35 → 15.130; 18.38 → 6.37; 18.42 → 6.106; 18.44 → 14.26; 18.57 → 15.14; 18.60 → 4.93; 18.63 → 15.97; 18.66 → 10.60; 19.20 → 6.32 and 10.19; 19.21 → 8.81 and 15.168; 20.7 → 12.211; 20.11 → 15.319; 20.12 → 7.16; 21.12 → 4.111.

⁵⁷ See D. Whitehead, 'Law and lawsuits in the late fifth century B.C.' ( Museum Helveticum 59 [2002] 71-96, esp. part I)

⁵⁸ Part 1 section v.

⁵⁹ K. Hiddemann, De Antiphontis, Andocidis, Lysiae, Isocratis, Isaei orationum iudicialium prooemiis (diss. Munster 1913) p. 48, 'orditur...ab illo loco communi, qui in omnibus fere synegoriais reperitur'. M. Lavency, Aspects de la logographie judiciaire attique (Louvain 1964) - hereinafter Lavency, Logographie - p. 104 with n. 1, reiterated p. 162 with n. 2.

⁶⁰ Usher, Oratory p. 119 n. 213. On these topoi (and, in general, the motivations for synegoric involvement) see at length L. Rubinstein, Litigation and Co-operation: supporting speakers in the courts of Classical Athens ( Historia Einzelschriften 147: Stuttgart 2000) chap. 4 sections. 1-2.

⁶¹ In Part 1 section v.

⁶² See however Antiph. 3.2.2. The version of this in Euth . 5 has to be more subtle, as Euthynous is Nikias' cousin; the effect is achieved by saying something about Nikias and allowing its implications for Euthynous to dawn afterwards. In this as in other respects Usher's overall verdict ('interesting if read in isolation, the speech does not mark its author as an innovator': Oratory p. 119) could have given Isokrates the benefit of more doubt.

⁶³ Lavency, Logographie p. 120 n. 3, citing (e.g.) Isai. 2.38-39, Demosth. 19.240, 20.126-27, 41.19-20, Aischin. 3.27.

⁶⁴ See generally above, Part 1 section vi.

⁶⁵ Again see generally above, Part 1 section vi (end).

⁶⁶ Note also Isai. 5.28 and Lyk. Leok . 90 which, like the present passage, predict that what the opponent will say is something that he has said already (presumably at the preliminary hearing and/or in general pre-trial assertions).

⁶⁷ See generally above, Part 1 section vi. Besides the Tetralogy references given there see Antiph. 5.57-59 and (albeit quite possibly after rather than before Euth .) Lys. 21.16.

⁶⁸ Usher, Oratory p. 119.

⁶⁹ The same may also be true of §6's 'all injustice is motivated by greed' and Lys. 7.13, though there the sentiment seems more truistic and the language more conventional.

⁷⁰ This point about the immediate political context is made by Usher, Oratory p. 119.

⁷¹ See Oxyrhyncus Papyri 2537, verso, lines 18-21.

⁷² For this date, which used to be standard before D. M. MacDowell advanced reasons for postponing it to 400/399 ('The chronology of Athenian speeches and legal innovations in 401-398 BC', Revue Internationale des Droits d'Antiquité 18 (1971) pp. 267-73) see Whitehead, 'Laws and lawsuits' (above, n. 57). On paragraphe , both in general and with particular reference to Kall ., see e.g. H. J. Wolff, Die attische Paragraphe (Weimar 1966), section III; E. M. Carawan, 'What the laws have prejudged: paragraphe and early issue-theory', in C. W. Wooten (ed.), The Orator in Action and Theory in Greece and Rome ( Mnemosyne suppl.225: Leiden 2001) pp. 17-51.

⁷³ Usher, Oratory p. 23.

⁷⁴ See Usher, Oratory p. 35.

⁷⁵ See Usher, Oratory pp. 45, 77, and 107 respectively.

⁷⁶ Usher, Oratory p. 120, citing the evidence in n. 216 there.

⁷⁷ See Part 1 section vi.

⁷⁸ See Part 1 section v. (§52, at any rate, was regarded as striking enough for imitation: see Isai. 6.48.)

⁷⁹ Combining topoi is something Usher counts as innovatory in others (e.g. Oratory pp. 60, 74, 89 for Lysias, 156 n. 93 for Isaios), so why not in Isokrates?

⁸⁰ Although Lochites was too young to have participated in the events of 404/3 (§11) and the jury is urged to recollect them as past history (§12), they seem nevertheless, at times, fresh in the mind (§§4, 10, 20).

⁸¹ For the idea, which I tentatively espouse here, that we have all of Loch . that there ever was, see J. Zycha, 'Ist die XVI. und XX. Rede des Isokrates verstümmelt überliefen?', Wiener Studien 6 (1884) pp. 23-29.

⁸² Cf. Todd, Lysias p. 192 n. 3 on Lysias 18: 'We have no way of telling whether a preceding statement of the defense case has been lost or whether the concluding appeal for the jury's sympathy based on the speaker's family history (which is all that survives) was all that was commissioned from the orator'. See again, n. 88.

⁸³ Usher, Oratory p. 125.

⁸⁴ Even if the originator is Lysias, Isokrates may have been the first (here and again in 19.51) to place the plea at the end of the epilogue. See also, more generally, Demosth. 54.42; it seems to provide microcosmic corroboration that Demosthenes consulted Loch . when he too (as just mentioned) needed to inflate a battery case into something more portentous.

⁸⁵ Central to the former is the age of the defendant, born in (it can be determined) 417 or 416 and therefore adult and prosecutable in 398 or 397. The latter are less clear: it is dubitable whether, as is often claimed, §40 cannot have been written after the rebuilding of the Long and Peiraieus Walls began (in 394, apparently); even so it remains plausible enough that the opponent, Teisias, will have wanted to initiate the trial at the earliest possible opportunity. The lower terminus anyway moves up to 395 on the assumption that Lysias 14 and 15, written against Alkibiades at that time, respond to some of Isokrates' assertions here. I am inclined to accept that assumption, as most do, but some have queried and complicated it (see further below).

⁸⁶ See to this effect e.g. C. Carey, Lysias: selected speeches (Cambridge 1989) p. 149.

⁸⁷ D. W. Gribble, Alcibiades and Athens: a study in literary representation (Oxford 1999) - hereinafter Gribble, Alcibiades - pp. 92-117.

⁸⁸ Again (cf. n. 82 above) note Todd, Lysias (p. 228) on the subject: 'The opening words [of Lysias 21] make clear that what we have is not a complete speech but simply a part of one. The charges have already been dealt with, and what follows is first a statement of the anonymous defendant's services towards Athens and then a peroration. It is possible that the first part of the speech has been lost, but there is no evidence for a gap in the manuscripts, and it is equally possible that this is all that was commissioned from the orator, with the litigant himself being responsible for the rest'; he then adds (228 n. 1) 'A possible parallel would be Isoc. 16, which similarly begins by referring back to the subject of the case'. See also, generally, Todd's remarks (Lysias p. 280 with n.1) on Lys. 27-29, which are - or at least seem - similarly acephalous.

⁸⁹ Gribble, Alcibiades p. 113.

⁹⁰ I ignore under this head the connection between Zeug. and Lys. 14 already mentioned; their need to express diametrically opposed opinions about the elder Alkibiades ( Zeug . first, it would seem) makes the connection inevitable and so, for my purposes here, irrelevant.

⁹¹ See in brief F. Blass, Die attische Beredsamkeit, zweite Abtheilung: Isokrates und Isaios (2nd edn. Leipzig 1892) p. 227 with n. 5 (citing earlier work).

⁹² For the evidence and issues here see e.g. C. J. Tuplin, 'Satyros and Athens: IG II_212 and Isokrates 17.57', Zeitschrift für Papyrologie und Epigraphik 49 (1982) pp. 121-28, esp.125-26 with endnote.

⁹³ Usher, Oratory pp. 122-23, at 122.

⁹⁴ See text to n. 53.

⁹⁵ This possibility is well argued by J. C. Trevett, 'P. Oxy. 2537 and Isocrates' Trapeziticus', Zeitschrift für Papyrologie und Epigraphik 81 (1990) pp. 22-26. The papyrus in question (for which see already above, n. 71) lists a Trapezitikos speech, connected with this same case, apparently by Lysias; suggestions that what has been transmitted to us as Isok. 17 was actually by Lysias are disproved by the lexicographer Photios' citation of a word from the Lysianic Trapezitikos which does not occur in Isok. 17; consequently Lysias' speech must have been written for the defence side in the case.

⁹⁶ Attention was briefly drawn to this by J. Eibel, De vocativi usu apud decem oratores atticos (diss. Würzburg 1893) p. 5.

⁹⁷ Aig. (see the next section) apostrophizes the 'men of Aigina' four times, an unremarkable middle-range frequency by comparison with the feast-or-famine approach of the five Athenian speeches.

⁹⁸ Usher, Oratory p. 122.

⁹⁹ Compare also Trap . 18-20 and Andok. 1.42, each involving solemn promises made on the Akropolis.

¹⁰⁰ By D. C. Mirhady, 'Torture and rhetoric in Athens', Journal of Hellenic Studies 116 (1996) pp. 119-31, at 130-31.

¹⁰¹ As with Trap ., an initial upper terminus is the end of Spartan naval control of the Aegean (implicit here) in 394, from which one then calculates the amount of time Thrasylochos and the rest spent in Melos, Troizen, and finally Aigina; this puts Thrasylochos' death in 392 or 391. A lower terminus has been seen in the Athenian attack on Aigina in 390/89 (Xen. Hell . 5.1.1) and the consequent rupture of what Xenophon calls the 'intercourse', epimeixia , between the two poleis; whether, though, this will necessarily have prevented an Aiginetan metic from using the services of an Athenian logographer seems to me far from certain.

¹⁰² G. A. Kennedy, The Art of Persuasion in Greece (Princeton 1963) p. 140.

¹⁰³ For this see most recently H. J. Wolff, Das Problem der Konkurrenz von Rechtsordnungen in der Antike (Heidelberg 1979) pp. 15-34 (much the best single discussion of Aig . and the issues it raises), at 24.

¹⁰⁴ For their remains see nos. XI, XXXI, XXXV, XLIV, LV, (?)LVIII, (?)LXXXVI, CVII, and CXX Thalheim.

¹⁰⁵ See in general, on Aig . and Isaios, Wyse (n. 2 above) pp. 175-78, 180-81, 222, 223. For the use of Aig . in Isai. 1 compare above all Aig . 4 with Isai. 1.8; the resemblance is so close as to render irrelevant the fact that Lys. 13.4 is earlier than either.

¹⁰⁶ Wyse (n. 2 above) p. 551.

¹⁰⁷ Compare the epic/tragedic feel of §39, the speaker carrying the stricken Sopolis (Thrasylochos' brother) on his shoulders: compare Nessos and Deianeira in Soph. Trach . 564; Eur. Bacch . 945-46; and for a rescue Aeneas and Anchises in Vergil, Aeneid 2. 707-25 (ipse subibo umeris, etc.).

¹⁰⁸ See generally K. J. Dover, Greek Popular Morality in the time of Plato and Aristotle (Oxford 1974) p. 243.

¹⁰⁹ Usher, Oratory p. 124 concedes some novelty to §42: 'A device speculating on the likely feelings of the now dead Thrasyllus...is similar to a prosopopoiia [for which see e.g. the gods at the end of Antiph. 1, and Lys. 12.100], but with even more dramatic immediacy than usual, as he is confidently added to the list of those who would approve of the speaker's adoption (47), a striking rhetorical coup'.

¹¹⁰ For this modern topos see e.g. C. D. Hamilton, Sparta's Bitter Victories (Ithaca NY & London 1979) p. 21.

¹¹¹ On which I am of course in good company, including that of B. Due, Antiphon: a study in argumentation (Copenhagen 1980).

¹¹² I am indebted to Lene Rubinstein for observations on the first draft of this paper (spring 2000). Though the commentary on Isokrates 16-21, foreshadowed throughout, will be our joint effort, I bear sole responsibility for what has appeared here. A second draft (summer 2001) benefited from the comments of Edwin Carawan, David Mirhady, and - in a special category of respondent - Stephen Usher. They too I must exonerate from any real complicity in what I have sought to argue, and indeed in the case of Dr Usher (and my 'Proofs part 1') it should be understood that on fundamentals we have cordially agreed to disagree.