Κατὰ Θεομνήστου
. [Or. x.] — Theomnestus, a young Athenian, had been indicted by one Lysitheus for throwing away his shield in battle, but had been acquitted. The present speaker had been among the witnesses of Lysitheus, and in the course of the trial had been called a parricide by Theomnestus. A certain Dionysius, also a witness of Lysitheus, was next prosecuted by Theomnestus for perjury, and was sentenced to disfranchisement (§ 22). The present speaker then brought his action against Theomnestus. The Athenian law against Defamation (κακηγορία) punished with a fine of 500 drachmas (about £20) the utterance of certain reproaches classed as ἀπόρρητα (§ 2). To call a citizen a murderer, a striker of father or mother, or to charge him with having thrown away his shield in battle, was among these. The present case had already been submitted to arbitrators (§ 6); it now came before an ordinary court, under the presidency of the Thesmothetae. From § 4 the date is certain. The speaker had been thirteen years old in the time of the Tyrants (404 — 3 B.C.), and was now thirty-three: the speech belongs therefore to 384 — 3 B.C. — Attic Orators, I. 293.§§ 6 — 20.
διαιτητήν The Attic διαιτηταί were of two kinds, — public (κληρωτοί), and private, chosen (αἱρετοί) by the parties themselves. Here, private arbitration is meant. ἀπορρήτων ‘forbidden’ words, which rendered those who used them liable to a δίκη κακηγορίας. ἀπεκτονέναι The term used by Theomnestus, acc. to the speaker, § 3, τὸν πατέρα μ᾽ ἔφασκεν ἀπεκτονέναι τὸν ἐμαυτοῦ.τῷ νομοθέτῃ We often find similar intimations that the intention or principle of a law is to be considered where the letter is not explicit: e.g. Arist. Mag. Mor. II. ad init. ὁ νομοθέτης ἐξαδυνατεῖ καθ᾽ ἕκαστα ἀκριβῶς διορίζειν: cp. Rhet. I. 1.
οὐ γὰρ δήπου, κ.τ.λ. ‘If anyone were to call you a “striker” of father or mother [the ἀπόρρητα, or actionable words] you would claim damages from him: surely, then, if anyone were to say that you had “smitten her who bore you” or “him who begat you”, you would not consider him deserving of impunity or innocent of libel’. For the form of the sentence, οὐ δήπου, εἰ μέν...εἰ δέ, cp. In Eratosth. § 36 (above, p. 74), οὐκ οὖν δεινόν, εἰ τοὺς μὲν στρατηγοὺς κ.τ.λ.: Isocr. Panegyr. § 181 (below, p. 133), καὶ γὰρ αἰσχρὸν ἰδίᾳ μὲν κ.τ.λ.: Plat. Gorg. 512 A, λογίζεται ὅτι οὐκ, εἰ μέν...εἰ δὲ κ.τ.λ. — ὡς οὐδὲν εἰρ. ‘on the ground that he has not’: but ὡς μηδέν, ‘as if he had not’.
περὶ τοῦτο γὰρ καὶ ποιεῖν καὶ λέγειν ‘For you are an expert in this subject (τοῦτο, =τὸ κακολογεῖν), and have studied both the theory and the practice’. ποιεῖν, how ‘to invent’ taunts; λέγειν, how to utter them. ῥῖψαι τὴν ἀσπ ῥίπτειν, abicere, was stronger than ἀποβάλλειν, which, like iacturam facere, was capable of meaning simply ‘to lose’: hence ῥίψασπις is the term of reproach, one who flings away his shield. εἴρητο Dobree, εἴρηται, which would be easier: but ἀποβεβληκέναι was the word actually used in the law, as appears from the epitome of this speech (κατὰ Θεομν. B § 5). Retaining εἴρητο, take it as depending on εἰ: ‘If some one were to say... and it had been prescribed by the law...’: the actual provision of the law being stated hypothetically, as one of the data of the imagined case. ἐξήρκει ἄν σοι...μέλειν ‘You would be content to be set down as one who had thrown away his shield, saying merely that you did not care’. Dobree would omit ἐρριφέναι τὴν ἀσπίδα: wrongly, I think. The perf. is thoroughly Greek: ‘you would be content to have thrown away’, i.e. you would acquiesce in the position of one who was said to have done so. He is supposed to say, οὔ μοι μέλει. Cp. Her. VI. 129, οὐ φροντὶς Ἱπποκλείδῃ.
τῶν ἕνδεκα ‘Or again, if you had been made one of the Eleven [the Commissioners of Police], you would not be satisfied if a person were arrested for “robbing a man of his cloak” or “stripping him of his tunic”; you would acquit him on the same principle, because the epithet “clothesstealer” was not applied to him’. — ἀποδ., ἐκδεδ., true perfects pass.: lit. ‘if one were to arrest another saying that (he himself) had been robbed’: ἀποδύειν, of the ἱμάτιον: ἐκδύειν, of the under-garment, the χιτών. οὐδ᾽ εἰ...τίθενται ‘Nor, if any one were convicted of “having sold a boy into slavery”, would you call him a kidnapper, — on your principle [εἴπερ, with fut. ind. μαχῇ] of cavilling about words, instead of attending to the facts which all men have in view when they establish the terms’. — ἐξαγ.: cp. Her. v. 6, πωλεῦσι τὰ τέκνα ἐπ᾽ ἐξαγωγῇ (for exportation as slaves).
ἔτι τοίνυν, κ.τ.λ. ‘Well, here is another illustration, judges. The defendant appears to be so averse to trouble or exertion that he has never even gone up to the Areiopagus. As you are all aware, when cases of homicide are tried in that place, the term employed in the preliminary oaths of the parties is not this [τούτου, i.e. the accuser does not say that the accused is ἀνδροφόνος]; it is the phrase in which I have been reviled [i.e. κτείνειν]; for the prosecutor deposes that the prisoner “hath slain”, and the prisoner replies, “I have not slain”.
οὐκοῦν ἄτοπον...διωμόσατο ‘Now it would be absurd that the prisoner, after having been adjudged guilty of “slaying”, should defend himself on the plea that he was “a homicide”, the prosecutor's statement having charged him with “slaying”.’ As to the text of this passage, which has been corrupted in the mss., see the critical note. τί γὰρ ταῦτα...διαφέρει ‘How, I ask (γάρ), do such cases differ from that which the defendant is prepared to maintain [ἐρεῖ]?’ i.e. the defendant uses ἀποκτείνειν, implying ἀνδροφόνος: the Areiopagus, vice versa. πεντακ. δραχμ.] about £20.
*λαμβάνεις ‘If you accept the laws in the sense in which I now take them’; — οὕτω, i.e. with a view to the spirit rather than to the letter. The mss. have λαμβάνειν, — an impossibly harsh anacolouthon when εἰ precedes and ἀξιοῖς follows. It was probably a mere error of transcription. οὐκ ἀξιοῖς for οὐ instead of μή after εἰ in such a sentence, cp. In Eratosth. § 36 (p. 74) οὐκ ἄρα χρή.
εἶτ᾽ οὐκ αἰσχ., κ.τ.λ. ‘Now do you not blush for being such a simpleton as to suppose that you are to be enriched, not by the rewards of patriotism, but by the profits of impunity?’ i.e. do you not see that every one will soon recognise you as a συκοφάντης?
ὥστε οὐ δύνασθαι Not ὥστε μή: a parallel, if the text is sound (as it seems), to the anomaly in Soph. El. 780, ὥστ᾽ οὔτε νυκτὸς ὕπνον οὔτ᾽ ἐξ ἡμέρας | ἐμὲ στεγάζειν ἡδύν. The ‘rules’ of Greek grammar were in the making in those days, and the thought sometimes overbore the normal usage: here, for instance, the writer was thinking most of the negative fact. ἄν πως, κ.τ.λ. ‘if, even at this late hour, when he stands at your bar, he can be educated, and prevented from troubling us in the future’. (εἰ μὴ πρότερον,) ἀλλὰ νῦν, ‘better late than never’: cp. note on Soph. O. C. 1276. — There was one βῆμα (tribune) for the accuser, another for the accused: Aeschin. In Ctes. § 207, τὸ τοῦ κατηγόρου β.,...τὸ τοῦ φεύγοντος. Σόλωνος The laws written βουστροφηδόν on the wooden rollers (ἄξονες) and triangular tablets (κύρβεις) preserved in the Prytaneion were known as the ‘laws of Solon’. Acc. to Plut. Sol. 17, τοὺς Δράκοντος νόμους πλὴν τῶν φονικῶν ἀνεῖλεν (‘he cancelled’) ἅπαντας, but, as Grote says (III. 180), ‘there is room for supposing that the repeal cannot have been so sweeping’. Solon was popularly credited with political reforms that came after him (ib. 169), and so also, doubtless, with laws that had been before him.
ποδοκάκκῃ This sentence (with τὸν πόδα πένθ᾽ ἡμέρας καὶ νύκτας ἴσας) occurs also in the νόμος (interpolated?) ap. [Dem.] or. LVIII. In Theocr. § 105. Hesych. ποδοκάκῃ: ὁ ἐν τῷ ξύλῳ δεσμός, ἐν ᾧ οἱ κακοῦργοι δεσμεύονται, οἷον ποδοκατοχή: citing Plato comicus (circ. 420 — 390 B.C.). προστιμήσῃ ‘If the Heliaea award an additional penalty’ (in an aggravated case). The Periclean subdivision of the ἡλιαία into δικαστήρια was subsequent to this law.
ἐπιορκήσαντα — δρασκάζειν ‘He shall give security, calling Apollo to witness his oath’ [ἐπιορκ. would ordinarily mean ‘having sworn falsely’ by the god]. — ‘If in fear of the proceedings, he should attempt flight’: — a detached phrase, which in the original may have depended on ἐὰν συμβῇ or the like. ἀπίλλει τῇ θύρᾳ ‘Whoever shuts the door of the house [lit. excludes by the door] when the thief is within’...(to prevent the master entering, or to secure the burglar?). — ἀπίλλω, from root ϝελ, whence εἴλω, εἰλέω, ἅλ-υ-σι-ς, a chain — ἁλ-ί-σκ-ομαι, etc. Curt. Gr. E. § 656. Hesych. quotes ἀπέλλαι ‘enclosures’=σηκοί, ἐκκλησίαι: whence the Lacon. ἀπελλάζειν=ἐκκλησιάζειν, to hold assemblies. — On the question between the spellings ἀπίλλω and ἀπείλλω, cp. my note on Soph. Ant. 340 (appendix, p. 250). καὶ μηδὲν...διαφέρου ‘and make no cavil on that account’, — said derisively to Theomnestus: i.e. ‘you cannot pretend that here the strange word makes the sense of the law doubtful’.
τὸ ἀργύριον στάσιμον ‘The money shall stand at whatever rate the lender chooses’. The word στάσιμον here does not refer to weighing, but to the exaction of interest as high as he pleases: i.e. στάσιμόν ἐστι=δύναται ἴστασθαι or σταθῆναι, the loan can stand, can remain put out: cp. Andoc. De Red. § 11, ὅσου ἐμοὶ κατέστησαν, n., p. 221. For στάσιμος in the sense of ‘weighable’ (ζυγῷ ἱστάναι), cp. Pollux IV. 173, who cites στάσιμα as used for στάθμια, ‘weights’, by Cephisodorus (Fragm. Com. 342): Polyb. VIII. 21. § 1, ἕλκοντα τὸ τῆς πράξεως στάσιμον, ‘turning the scale of the crisis’.
οἰκῆος καὶ Δούλης, κ.τ.λ. ‘He shall be required to make good the injury done to the male or female slave’. Cp. the νόμος cited in Lys. or. I. § 32, ἐάν τις ἄνθρωπον ἐλεύθερον ἢ παῖδα αἰσχύνῃ βίᾳ, διπλῆν τὴν βλάβην ὀφείλειν. τὸ δὲ οἰκῆος θεράποντος] οἰκεύς in Il. and Od. sometimes=a (free) member of a household; sometimes, as here and in Soph. O. T. 756, a slave, οἰκέτης. In Homer θεράπων usu.=a free attendant — e.g. an esquire, etc.: later, it is simply a more honourable name for the slave as the personal attendant of his master. In Thuc. IV. 16 θεράπων is the servant of the Spartan hoplite: in VII. 13 the θεράποντες perh. include the free θῆτες who had been pressed for naval service, as well as the δοῦλοι. θεράποντες was esp. the Chian word for οἰκέται, Eustath. ad Dionys. 533.
σιδηροῦς i.e. impenetrably stupid — incapable of receiving knowledge, even when it is hammered into him: cp. Aeschin. In Ctes. § 166, πῶς ποτ᾽ , ὦ σιδήρεοι, ἐκαρτερεῖτε ἀκροώμενοι, i.e. men of iron endurance: Ar. Acharn. 491, ἀναίσχυντος σιδηροῦς τ᾽ ἀνήρ, shameless and brazen. τοῦ βήματος Cp. note on § 15.
