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I. Action for defamation (δίκη κακηγορίας), Or. X

Of the speeches of Lysias in private causes only four are extant; but each of these four represents a class.

Against Theomnêstos. [Or. X]—The occasion of

I. Against Theomnêstos.
this action was as follows. (1) Theomnêstos, a young Athenian, had been indicted by one Lysitheos for throwing away his shield in battle; but had been acquitted. The present speaker had been among the witnesses of Lysitheos; and in the course of the trial had been called a parricide by Theomnêstos. (2) A certain Dionysios, also a witness of Lysitheos, was next prosecuted by Theomnêstos for perjury; and was sentenced to disfranchisement (§ 22). (3) The present speaker then brought his action against Theomnêstos—which was thus the third of a series.

The Athenian law against Defamation (κακηγο-

Law against Defamation.
ρίας) 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, were among these1. The present case had already been submitted to arbitrators (§ 6); it now came before an ordinary court, under the presidency of the Thesmothetae2.
Date

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.

Analysis.

Witnesses can scarcely be needed, since many of the judges themselves heard the libel when it was uttered in court. The prosecutor holds it mean and pettifogging (ἀνελεύθερονφιλόδικον) to go to law about abusive words; but the taunt of parricide has driven him to it (§§ 1—3). He then proves by witnesses that he was only thirteen years old at the time of his father's death; and that he was directly a sufferer by it, since he became the ward of his father's elder brother, Pantaleon3, who has defrauded him (§§ 4, 5).

Theomnêstos owns that he used the taunt; and the taunt has been proved false. But Theomnêstos argues that it is not, in the view of the law, a libel. He said only ‘slew:’ not ‘murdered.’ Is it lawful, then, the speaker asks, to reproach a man with ‘flinging’ away his shield? The law speaks only of ‘throwing.’ He gives further instances; and then observes that, in the procedure of the Areiopagos, ‘slaying’ is the term always used (§§ 6—14). Not content with this exposure of the quibble, he adds some illustrations from the old laws of Solon. These are full of obsolete words; but their meaning is the same now as ever (§§ 15—20).

If Theomnêstos got satisfaction for having been charged with cowardice, much more should the plaintiff get satisfaction for having been charged with parricide. Theomnêstos has had one favour done him already:—Dionysios, a brave man, has been his victim. For the plaintiff, what could be so shameful a reproach as to be accused of murdering his father —a man who, after serving the democracy all his life, died for it at the hands of the oligarchs? His bravery has to this day its memorials in the temples of Athens; even as the cowardice of Theomnêstos and of his father have their memorials—in the temples of the enemy (§§ 21—29). The plea that the libel was uttered in anger is no defence at law (§ 30). Let the court bear in mind that he, who is now accused of murdering his own father, had in his youth impeached the Tyrants before the Areiopagos. Remembering this, the laws and their oaths, let the judges stand by his father and him (§§ 31, 32).

If not one of the most artistic or the most powerful,

The Speech suspected in antiquity —but probably genuine.
this is at least one of the most spirited of the speeches of Lysias4; and the doubt of its genuineness which seems to have existed in antiquity5 must be explained—as in the case of the speech For the Invalid—by the slightness of the matter on which the case turned. The verbal quibble of Theomnêstos is, indeed, treated at somewhat excessive length; but the absurdity of the defence was perhaps felt to be among the best supports of the complaint. The conclusion of the speech bears the sure stamp of genuineness. It was a characteristic of Lysias that he loved to end, not with a rhetorical appeal, but with a definite point, put in the fewest and plainest words. Just such an ending we have here. There are besides in the speech several passages quite worthy of Lysias;—for instance, the opening remarks (§§ 1—3); —the reference to the fate of Dionysios (§§ 24, 25);— and the speaker's tribute to his own father (§§ 26—28).
Reference in § 31 to ‘the Tyrants.’

The reference in § 31 is of some interest. The speaker says that, immediately on reaching the age of eighteen—that is, in 399 or 398 B. C.—he had prosecuted ‘the Thirty’ before the Areiopagos. Now when the Thirty Tyrants left Athens in 403 B. C., Pheidon and Eratosthenes alone of their number are known to have stayed at Athens. If the allusion here is to them, then we see that Eratosthenes escaped at least the penalty of death when impeached by Lysias in 403.

The ‘Second’ Speech an Epitome.

The so-called Second Speech Against Theomnêstos [Or. XI.] is merely an epitome of the First, made by some grammarian later than Harpokration6. The epitome preserves for the most part the very words of its original, with which it corresponds as follows:—

Epitome §§ 1— 2 = Speech §§ 1— 5

Epitome §§ 3— 6 = Speech §§ 6—20

Epitome §§ 7—10 = Speech §§ 21—29

Epitome §§ 11—12 = Speech §§ 30—32.

1 See the speech §§ 6—9: ἀνδροφόνοςπατραλοίαςμητραλοίαςῥῖψαι τὴν ἀσπίδα. From Dem. in Eubul. § 30 it appears that to reproach a citizen with trading in the marketplace (τὴν ἐκ τῆς ἀγορᾶς ἐργασίαν) came under this law.

2 Meier and Schmann, Att. Proc. p. 67.

3 The language in § 5 leaves it ambiguous whether Pantaleon was uncle or brother of the speaker; Sauppe assumes the former, which is more likely. The speech of Lysias κατὰ Πανταλέοντος (Frag. v.) may, he thinks, have had this man for its object. He conjectures that the father of the speaker—who is said in § 27 to have died for the democracy—may have been that Leon of Salamis who was put to death by the Thirty (Or. Att. II. p. 202).

4 ‘Oratio prior in Theomnestum ad optimas Lysiae referenda,’ says Francken: which is true so far, certainly, that ‘indignationis et justi plena doloris est oratio’ (Comment. Lys. p. 72).

5 Harpokration adds εἰ γνήσιος to his citation of the speech S. VV. ἀπίλλειν, ἀπόρρητα, πεφασμένης, ποδοκακκη: but not S. VV. ἐπιορκήσαντα, οἰκέως.

6 Who in no one of his six references to the speech Against Theomnêstos (see above) distinguishes it by ά.

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