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Speech On the Murder of Herodes.

Of extant speeches written by Antiphon for real causes, by far the most important is that On the Murder of Herodes. The facts of the case were as follows. Herodes, an Athenian citizen, had settled at Mytilene in 427 B.C. after the revolt and reduction of that town. He was one of the kleruchs among whom its territory was apportioned, but not otherwise wealthy1. Having occasion to make a voyage to Aenos on the coast of Thrace, to receive the ransom of some Thracian captives who were in his hands, he sailed from Mytilene with the accused,—a young man whose father, a citizen of Mytilene, lived chiefly at Aenos2. Herodes and his companion were driven by a storm to put in at Methymna on the north-west coast of Lesbos; and there, as the weather was wet, exchanged their open vessel for another which was decked. After they had been drinking on board together, Herodes went ashore at night, and was never seen again. The accused, after making every inquiry for him, went on to Aenos in the open vessel; while the decked vessel, into which they had moved at Methymna, returned to Mytilene3. On reaching the latter place again, the defendant was charged by the relatives of Herodes with having murdered him at the instigation of Lykînos, an Athenian4 living at Mytilene, who had been on bad terms with the deceased. They rested their charge principally on three grounds. First, that the sole companion of the missing man must naturally be considered accountable for his disappearance. Secondly, that a slave had confessed under torture to having assisted the defendant in the murder. Thirdly, that on board the vessel which returned from Methymna had been found a letter in which the defendant announced to Lykînos the accomplishment of the murder.

It was necessary that the trial should take place

Mode of legal procedure.
at Athens, whither all subject-allies were compelled to bring their criminal causes. The ordinary course would have been to have laid an indictment for murder (γραφὴ φόνου) before the Areiopagos. Instead, however, of doing this the relatives of Herodes laid an information against the accused as a ‘malefactor’5. He was accordingly to be tried by an ordinary dikastery under the presidency of the Eleven. ‘Malefactor,’ at Athens, ordinarily meant a thief, a housebreaker, a kidnapper, or criminal of the like class; but the term was, of course, applicable to murder, especially if accompanied by robbery. Instances of persons accused of murder being proceeded against, not by an indictment, but by an information, and being summarily arrested without previous inquiry, occur only a few years later than the probable date of this speech6. When, therefore, the accused contends that the form of the procedure was unprecedented and illegal, this is probably to be understood as an exaggeration of the fact that it was unusual. In two ways it must have been distasteful to the prisoner; first, as an indignity; secondly, as a positive disadvantage. Trial before the Areiopagos left to the prisoner the option of withdrawing from the country before sentences; and imposed upon the accuser a peculiarly solemn oath7. In this case, moreover, the unusual (though not illegal) procedure was accompanied by unjust rigours. When the accused arrived in Athens, although he offered the three sureties required by law, his bail was refused; he was imprisoned. This treatment, of which he reasonably complains8, may have been due in part to the unpopularity of Mytileneans at Athens, and to the fact that Herodes had been an Athenian citizen.
Date of the speech.

The date of the speech must lie between the capture of Mytilene in 4279 B. C. and the revolt of Lesbos in 412 B. C. The accused says that in 427 B.C. he was too young10 to understand the events which were passing, and that he knows them only by hearsay. On the other hand, he can hardly have been less than twenty at the time of the trial. Kirchner11 and Blass are inclined to place the speech about 421 B. C.; it would perhaps be better to put it three or four years later, about 417 or 416 B. C. On the other hand, a slight indication—which seems to have escaped notice—appears to show that it was at least earlier than the spring of 415 B. C. The accused brings together several instances in which great crimes had never been explained12. If the mutilation of the Hermae had then taken place, he could scarcely have failed to notice so striking an example.

The speech opens with a proem in which the defendant

Analysis.
pleads his youth and inexperience (§§ 1—7); and which is followed by a preliminary argument (προκατασκευή) on the informality of the procedure (§§ 8—18). The defendant then gives a narrative of the facts up to his arrival at Aenos (§§ 19—24); and shows that the probabilities, as depending upon the facts thus far stated, are against the story of the prosecutors (§§ 25—28). The second part of the narrative describes how the vessel into which Herodes and the defendant had moved at Methymna returned to Mytilene; how the slave was tortured, and under torture accused the defendant of murder (§§ 29—30).

The defendant now concentrates his force upon proving the testimony of the slave to be worthless (§§ 31—51). He next discusses the statement of the prosecutors that a letter, in which he announced the murder to Lykînos, had been found on board the returning vessel (§§ 52—56). He shows that he could have had no motive for the murder (§§ 57—63). He maintains that he cannot justly be required to suggest a solution of the mystery. It is enough if he establishes his own innocence. Many crimes have finally baffled investigation (§§ 64—73). He notices the reproaches brought against his father as having taken part in the revolt of Mytilene and having been generally disloyal to Athens (§§ 74—80).

Besides all the other proofs, the innocence of the prisoner is vindicated by the absence of signs of the divine anger. Voyages and sacrifices in which he has taken part have always been prosperous (§§ 81—84). In a concluding appeal the judges are reminded that, in any case, justice cannot be frustrated by his acquittal, since it will still be possible to bring him before the Areiopagos (§§ 85—95).

Remarks.

In reviewing the whole speech as an argument, the first thing which strikes us is the notable contrast between the line of defence taken here and that traced for a case essentially similar in the modelspeeches of the First Tetralogy. There, the defendant employs all his ingenuity in suggesting explanations of the mysterious crime which shall make the hypothesis of his own guilt unnecessary. Here, the defendant pointedly refuses to do any thing of the kind. It is enough if he can show that he was not the murderer; it is not his business to show who was or might have been. On this broad, plain ground the defence takes a firm stand. The arguments are presented in a natural order, as they arise out of the facts narrated, and are drawn out at a length proportionate to their consequence,—by far the greatest stress being laid on the worthlessness of the slave's evidence; in discussing which, indeed, the speaker is not very consistent13. One apparent omission is curious. The prisoner incidentally says that he never left the vessel on the night when Herodes went on shore and disappeared14; but he does not dwell upon, or attempt to prove, this allessential alibi. If the numerous commonplaces and general sentiments seem to us a source of weakness rather than strength, allowance must be made for the taste and fashion of the time; and every one must recognise the effectiveness of the appeal to divine signs in which the argument finds its rhetorical climax.

As a composition, the speech has great merits. The êthos, indeed, is not artistic; a style so dignified and so sententious is scarcely suitable to a speaker who is continually apologising for his youth and inexperience. Nor, except in the passage which touches on the ruin of Mytilene15, is there even an attempt at pathos. But there is variety and versatility; the opening passage is artistically elaborate, the concluding, impressive in a higher way; while the purely argumentative part of the speech is not encumbered with any stiff dignity, but is clear, simple, and sufficiently animated. Altogether the style has less sustained elevation, but shows more flexibility, greater maturity and mastery, than that of the Tetralogies.

1 § 58.

2 § 78.

3 Compare § 28 with § 23.

4 See § 61; and also § 62, ἀπεστέρει μὲν ἐμὲ τῆς πατρίδος, ἀπεστέρει δὲ αὑτὸν ἱερῶν, which implies, as Blass points out, that Lesbos was not the πατρίς of Lykînos, as it was of the defendant.

5 ἔνδειξις κακουργίας: cf. § 9 κακοῦργος ἐνδεδειγμένος. When the accused arrived in Athens, he was, on the strength of the ἔνδειξις, arrested by the Eleven: § 85 ἀπήχθην. Hence in § 9 he speaks of ταύτην τὴν ἀπαγωγήν. The terms ἔνδειξις κακουργίας and ἀπαγωγὴ κακουργιας do not denote two different processes, but two parts of the same process. Ἔνδειξις was the laying of information against a person not yet apprehended: ἀπαγωγή was the act of apprehending him.

6 The two murderers of Phrynichos in 411 were ‘seized and put in prison’ by his friends (ληφθέντων καὶ ἐς τὸ δεσμωτήριον ἀποτεθέντων), —that is, were proceeded against by ἀπαγωγή: Lykurgos in Leokr. § 12. The procedure in the case of Agoratos (391 B.C.), again, was by an ἔνδειξις, not by a γραφὴ φόνου, and there was an ἀπαγωγή of the accused (Lys. in Agorat. § 85). Strictly speaking the ἔνδειξις and ἀπαγωγή were applicable only to those cases in which the accused was taken ἐπ᾽ αὐτοφώρῳ: that is, in which no further proof of his guilt was required. Thus Pollux defines ἔνδειξις as ὁμολογουμένου ἀδικήματος μήνυσις, οὐ κρίσεως ἀλλὰ τιμωρίας δεομένου. Agoratos appears to have raised this very point: Lys. in Agor. § 85. But, since the procedure of the Areiopagos was so highly favourable to the accused, a prosecutor would generally prefer the procedure by ἔνδειξις if there was any decent pretence for it. And the condition of manifest guilt does not seem to have been rigorously insisted upon by the authorities. There was, probably, a feeling that the forms of the Areiopagos would be in a manner profaned by application to criminals of the vilest class.

7 De caed. Herod. § 12, δέον σε διομόσασθαι ὅρκον τὸν μέγιστον καὶ ἰσχυρότατον, ἐξώλειαν αὐτῷ καὶ γέϝει καὶ οἰκίᾳ τῇ σῇ ἐπαρώμενον.

8 § 17.

9 § 76.

10 § 75.

11 Kirchner De temporibus orationum Antiphont. pp. 2 ff., quoted by Blass, Attisch. Bereds. p. 166.

12 §§ 67—70.

13 In § 39 it is contended that the slave cannot have represented himself as taking part in the murder, but only as helping to dispose of the corpse. In § 54, on the contrary, it is assumed that the slave represented himself as the actual murderer. Lastly, in § 68, the view taken in § 39 is not only reasserted, but is ascribed to the adversaries as their own.

14 § 26 λέγουσι δὲ ὡς ἐν μὲν τῇ γῇ ἀπέθανεν ἀνήρ, κἀγὼ λίθον ἐπέβαλον αὐτῷ εἰς τὴν κεφαλήν, ὃς οὐκ ἐξέβην τὸ παράπαν ἐκ τοῦ πλοίου.

15 § 79: ‘For all Mytileneans, the memory of their past error has been made indelible; they exchanged great prosperity for great misery; they beheld their country made desolate.’

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