HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 Graphe or Dike Traumatos? Mogens Herman Hansen I N Apagoge, Endeixis and Ephegesis I argued that the offence trauma ek pronoias in classical Athens could be redressed both through a private action (dike) and through a public action (graphe).l In support of the existence of a public action for wounding with intent to kill I adduced four sources which explicitly refer to a ypaqrry Tpav­ f.W.TO~: Dem. 54.18~ Aeschin. 2.93~ 3.51, 212. Recently Chiara Peco­ rella Long02 has restated the traditional view,3 that the reference, in all four passages, is to a dike traumatos. Her line of argument is that Athenian legal terminology lacks precision and is often confused. Accordingly the use of the terms ypa¢ea(Jm and ypa¢~ TpaVf.W.TO~ does not prove that the Athenians had a graphe traumatos, i.e., a public action for wounding. The other sources relating to trauma (where the terminology, according to Longo, is always precise and consistently used) show that the action brought was a dike. It seems useful therefore to discuss in detail the problems in distinguishing between dike and graphe, in order to support my view that both a BiKTJ and a ypa¢~ TpaVf.W.TO~ €K 7T'po)Joia~ could be brought before the council of the Areopagos. Following Longo I will begin with a discussion of the passage in Demosthenes' speech Against Konon (54.18): "" ~ , , ~, A..,.," ,~,,...,' 0 " owv ... HCTt KaK'Y/yoptaC; utKat" o/"CTt TOtVVV TaVTac; uta TOVTO ytyV€CT at, tva /-L~ AOtOOPOV/-L€VOt nmT€tv aAA,JAovc; 1TpoaywVTat. 1TaAtv alK€WC; dCTi" Kat , ".., \ ~,'" \.., , " ..,'" " '" ~'O TaVTae; aKOVW uW TOVT HVat Tae; utKae;, tva /-L'1/uHe;, OTav '1/ TTWV TI, ,,-t Cf /-L'1/8i TWV TOWVTWV a/-LVV'1/TaL /-L'1/8€vi, aAAa T~V £K TOV vO!J.Ov 8iK'1/V ava­ ,.,.Evy/. Tpav!J.aToe; TTaAtv €LCTtv ypaqxxL TOV /-L~ nTpwCTKO/-LEVWV nvwv cpOvove; yiYV€CTOat. The tenor of this passage is that a man should always bring the proper action instead of resorting to retaliation. When abused, a man should bring a dike kakegorias instead of using violence. When 1 M. H. Hansen. Apogoge. Endeixis and Ephegesis against Kakollrgoi. Atimoi and Phell­ gontes (Odense 1976) 108-10. 2 "ypac/>Ti TpmJ/.WTO<; 0 8iWIJ Tpav/.WTO<;," Sf/tal 53 (] 98]) 246-6 J, cited hereafter by author's name alone. a Ct: J. H. Lipsius, Das attische Recht und Rechtsverlahren I-III (Leipzig 1905-15) 606 n.22; A. R. W. Harrison. The Law oj' Athens II (Oxford J 97]) 103 n.3. 307 HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 308 GRAPHE OR DIKE TRA UMA TOS? thrashed, a man should rather bring a dike aikeias than resort to an armed attack. When wounded, a man should avail himself of a graphe traumatos and not proceed to homicide. The argument does not bespeak an advanced level of juridical thought, but it is neither muddled nor confused in terminology. Longo argues (247) that De­ mosthenes in this passage does not use legal technical terms: (a) the offence is trauma ek pronoias, not only trauma as stated by Demos­ thenes, and (b) the characteristic of trauma ek pronoias is the intent to kill and not the use of weapons which Demosthenes mentions. Neither argument carries any weight. As to (a): in the case De­ mosthenes versus Demomeles, the offence is twice described as trau­ ma (Aeschin. 2.93, 3.51) and once as trauma ek pronoias (Aeschin. 3.212). And similarly, in Dem. 40.32, the speaker refers to trauma and not to trauma ek pronoias. Since there was no aKovawv Tpav/-W as opposed to Tpav/-W EK TTPOVOl.a<;, the simple form Tpav/-W could not be mistaken for any other offence, and so the addition EK TTPO­ voia<; was, of course, optional. As to (b): in Lys. 3.28 and 4.6-7, both dealing with the offence trauma ek pronoias, the use of weapons is mentioned as one of the distinguishing marks of the offence trauma, 4 precisely as indicated in Dem. 54.18. The only difference is that Lysias mentions an ostrakon whereas Demosthenes refers to a stone or a similar weapon. So there is no reason to doubt that Demos­ thenes uses technical language, and the fact that ek pronoias is not emphasized is of no consequence. Dike kakegorias and dike aikeias are both precise technical terms. Why should graphe traumatos be an inaccurate description of a dike traumatos? Longo suspects "una deli­ berata mancanza de chiarezza," but in Demosthenes' speech Against Konon the distinction between dike and graphe traumatos is utterly unimportant for the case. Thus there is no reason to suspect that the passage is biased in this respect. The other three passages mentioning a graphe traumatos ek pronoias are all from Aeschines and relate to the same incident, Demos­ thenes' action against his cousin Demomeles. 2.93: Kat VVV JJlv &JpOOOKia~ KarrryopEt~, 7rPOTEPOV S' inrEJ.l-EWa~ T7}V E7rL­ {3oA7}V Ti1~ {3oVAT,~ Ti1~ E~ 'ApEiov 7r£x'Y0v, OVK E7rE~tWV rfi TOV TpaV/-UlTO~ 'Ypacfyfi, Tiv E'Ypal/Jw dTlJ.LOJLEATlV TOV naLaVul, aVEl/Jwv OVTa, E7rLTEp,WV T7}V uaVTOV KEcJ>aAT,V; 4 Lys. 3.28: ;"E'YEL l>E w.. T,/-UI", T/MJo/-Uv £7Tt rr,v OiKLaV rr,v TOVTOV O(TTpaKOV EXOVTfS, Kat w.. T,7TEi;..ovv miTe!) £'Yw U7TOKTEVEtV, Kat w.. TOVrO £UTtV T, 7TpOVOta. 4.7: KaiTOt q,aVEPOV T/B7J £I; 6Jv ELp7JKEV, OTt ov 7TpovOta 'YE'YEV7JTat. ov "lap av OUTC»., T/;"80/-Uv, uB.r,;"ov OVTO" Ei 7Tapa TOVTCP EVp.r,UO/-Uv oUTpaKov 7j OTeP aVTov U7TOKTEVOV/-UV, ci;..;..' 0'LK08EV EXOVTE., av £{3aB/,(,o/-Uv. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 MOGENS HERMAN HANSEN 309 3.51: TL yap BEt vvv TaVTa AEYEtv, T1 T£l 7TEpi T7,V TOV TpaVILQTO" ypacJ>T,v aVT~ av/-L/3E/3TJK(ha, OT' E'Ypal/JaTo Ei" "ApHOV 7Tayov aTJ/-LO/-LEATJV TOV nm­ avw, aVEI/JLov OVTa €aVT~, Kat rr,v rii" KEl/xxAi,,, E7TLTOWfW 3 212 " \ \ A..~\ \ I I I \ . : WUTE TTJV /-LWpav KE'P"~TJV TaVTTJV ... /-LVPWKL" KaTaTET/-LTJKE Kat TOVTWV /-LLu(JOV" ELATJc/>E TpaVILQTO" EK 7TpOVOia" ypacpa" ypacJx)/-LEvo". Longo suggests that the meaning of graphe in these passages is not 'public action' but 'written document' (250, 260). It is well known that the word graphe, as a legal technical term, regularly has the figurative meaning 'public action', but occasionally is used in the literal sense 'indictment', i.e. written accusation handed over to the the archai or read out to the jurors.5 In this sense graphe can even denote a written document in a dike, and similarly the verb 'Ypac/JEu- 8aL, 'to bring a public action', can be used in the phrase StKa" 'Ypa­ c/JEu8m.. 'to draw up in writing a private action'. In the orators I have found the following three examples of this usage: Antiph. 1.2, wr;; Kat EYW Kat i} ypacbr, A€YEL Gn a dike phonou)~ Dem. 27.l2, (hav Ka'T' av'Twv 'Tar;; 'YPac/xh a:rrEV€'YKWJ..l,EV Gn a dike epitropes)~ Isoc. 18.12, 7rEtuar;; Se 'Tr,v apXT1lJ 1TaAtV 'Tr,v av'Tr,v StK71V E'Ypat/Ja'To Gn a dike blabes). And we can add two more examples from Aristophanes' Clouds: Et (],Ot 'Ypacf>oL'TO 7rEV'TE'TaAaV'TOr;; 'Ttr;; StK71 (759), and <>7rO'TE 'Ypacf>ot'To 'Tr,v StK71V <> ypa/-tJ.La'TEifi; (770).6 According to Longo, graphe has the special meaning 'written docu­ ment' in all the four passages referring to a graphe traumatos. But this is most unlikely, for the following reasons. (a) Graphe in the figura­ tive sense 'public action' frequently governs an objective genitive describing the offence and delimiting the type of public action: 'Ypacbr, 1TapavolJ-Wv, gEviar;;, aUE/3Eiar;;, etc. When graphe has its literal mean­ ing 'written document', such an objective genitive is not attested and less likely to occur. The proper idiom is rather 'Ypacb7J 7rEpt 'Ttvor;;.7 In 5 Cl Lipsius (supra n.3) 263-64 n.1. 6 Longo 249 nn.2-3, following Lipsius, adduces three more passages: (a) Dion. Hal. Din. 635 (= Din. fr.48 test.2): Kat Eg OJV aVT()~ TrEpt athov O"Vv~"yPalJJf;:v EV TclJ ;..oycp TclJ KaTu IIpog~vov, 0<; EtPT/Tat ,MV ~Ta TT,V c!1VyrjV, TrpOaKH""~VT/V BE EXH TT,V "ypaqrrjV TaVTT/V' ~Eivapxo<; ... KT;". But here rT,v "ypa¢T,v TaVTT/V is not part of the fragment, but Dionysios' introduction to the indictment quoted {in a dike blabes}. So the passage is not a reliable source for Athenian legal terminology. (b) Oem. 38.6: t'tKOat BE Kat Bvot" (ETWV "yE"yEVT/~VWV) acp' oil TV"yxavOVatv "yE"ypa",,~voL, where the preferable reading, however, is Eyyt'ypalJ.~vot (A), accepted by Blass (Teubner), Rennie (OCT), and Gernet (Bude), and not "YE"ypa""~"Ot (cett.), accepted by Murray (Loeb). (c) Oem. 38.15: OTt' Toivvv EMYXavov TclJ TraTpL TTj~ E1rtTpOrr7i~, TavavTi' EypaljJavTo TOVTWV, where, pace Lipsius, we do not find the idiom "ypacpea(JaL 8iKT/V in any of the MSS. 7 When Plato, in Laws 876E, refers to the written text of the law concerning trauma he uses the phrase .;, "ypac/YYi TrEpt Tpav,."aTo~, and not .;, "ypac/YYi Tpav,."aTo~. For this meaning of "ypacJyY, in the Laws ~'l e.g. 788B, 859A, and 871A. Similarly, in Arist. Pol. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 310 GRAPHE OR DIKE TRAUMATOS? all the four passages describing a graphe for wounding, the objective genitive Tpavl.w:ro~ is added, which strongly suggests that the author has the figurative and not the literal sense in mind. (b) As pointed out in Apagoge 109, and acknowledged by Longo 249,8 the schema etymo!ogicum ypaq,T, v ypa~u(Ja" is never used in references to pri­ vate actions, but occurs in two of Aeschines' three references to graphe traumatos (2.93 and 3.212). (c) The use of ypaqrq and 'Ypa­ ~u(Jm denoting the written accusation in private actions is indeed extremely rare, and we must not forget that hundreds of passages attest the common meaning '(to bring a) public action', or '(indict­ ment in a) public action'. In public actions it is, of course, more difficult to distinguish be­ tween the figurative and the literal sense of graphe, but when the action is technically a graphe, the distinction is insignificant, as can be illustrated by the following examples: Oem. 18.53, Kat /-Wt. AEYE TT,V ypaq"y,v aVTT,V Aa/3Wv. fPAH· ... & ~v 8"wKEt TOV t/l11c/Xuf..UlTO~ ... TaVT' fUTtV. Oem. 58.36, all' o~ f~ avrYi~ TTJ~ ypactn1~ aVTtKa , (J ~, ',#,.",." '"" ~ II: • Av.!. \' \ YVWUEU E uwn 7rp0'fl"u,,~ EUTLV T11~ EvuE~E~ 11 ypa'f"'. I\.EyE Ta~ ypaq,a~ TaVTa~. rPAAI" (Both are in connection with a graphe paranomon.) More significant is the fact that graphe is occasionally used in descriptions of other types of public action, as for example eisangelia or apographe. The most prominent examples, often discussed, are to be found in Isaios' speech 11 On the Estate of Hagnias. It was de­ livered in an EUraYYEAia KaKWUE~ opcpavov (I l.6, 15), but in five passages graphe is used in descriptions of the action: 28 " 'A..~" ~ ~ ,~.. ., , ~, • \ l' ,~ : WU1TEp Kat 'Ypao/"~ KaT Ef..WV uEuwKEV, OVTW Kat utKa~ Ef..Wt ELvat. Kat. Tf!J ~, , 1TaLoL 1TE1TOtTlKEV. 31: E1Tt Tam-a~ T(X~ UVKOljxxVTtaS EAT,AV6EV, E~ ciJv 'Ypaqnw 'Ypa.paJLEVO~ Kat E~ 8ta{3&.AAwv EA1Tl.{,EL xpT,J.UXTa AT,IjIEu6at ... 1280a40, treaties of alliance are called ypacf>ai 1TEPL (TlJl-'lUXx}.a<;. At 1321 b36 and 1331b7, however, ypacf>aL BLKWV means 'registration of actions' and not 'written accusa­ tions', cf. LSJ S.v. ypacJyY, II. For the meaning of BiK-r, in these two passagescf. 313f infra. In the papyri ypacJyY, is frequently used in the sense 'list, catalogue'; here too the objective genitive is regular and often occurs, cf. Preisigke s. v. 8 Longo states (248-49 n.4) that my list of passages is not complete and adduces three more examples, of which two (Aeschin. 1.1 and 3.216) are recorded in my note (Apagoge 109 n.l1) but, admittedly, not recorded twice, whereas the third example, taken from the nomos hybreos quoted in Oem. 21.47, is the very phrase of that law which has aroused most suspicion as to the authenticity of the document: Oo-OL B' uV ypa 7raT~p '" W(,VPHO ... ei ... 7TEPU)t/JOJ.UlL ... 0WKpivrW '" 7Tapa 7T£IO'a<; TOv., V01WV<; 'YpaqXx<; 'Ypa4>O/-LEvov ... , where the reference is both to the phasis brought against Mikon (5ft) and to the graphai paranomon (l, 23, 30ft), cf 15, 47. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 312 GRAPHE OR DIKE TRAUMATOS? ideal society, he is certainly not using Athenian technical terms con­ sistently. So to adduce passages from Plato's Laws in support of the view that Athenian legal terminology lacks precision is, to say the least, not advisable.12 Similarly, the notes in rhetorical treatises, lexi­ ca, and scholia may be good sources for terminology if they quote or paraphrase a lost speech. But when they describe legal institutions in their own words, we cannot quote the passage as an example of confused legal terminology in fourth-century Athens.13 Finally, many of the documents inserted in the forensic speeches are probably genuine and excellent sources. But some are undoubtedly spurious and some are very suspect, as for example the martyriai inserted in Demosthenes' speech Against Meidias. 14 Thus there is no reason to discuss the testimonium inserted in Oem. 21.109, which no scholar will defend as authentic. Similarly, Longo invokes a description, in Oem. 59.97-98, of an action brought by the Plataeans against the Spartans during the Per­ sian wars: oi nAarat,E'i~ AaYXclvov(Tt BUcr,v ro'i~ AaKEOOtJl,Oviocs Eis , 'A .. A...' \ !.. \ .!. .,,, , Th ro~ f-C"f"'KTVOva~ xtl\.WJV ral\.Uvrwv tnrEP rwv U1Jf.t,.uxxwv ... e source applies to litigation between cities, where the word dike is often used,15 and it has no relation to the Athenian administration of justice. Accordingly, the passage does not show that the Athenians were inaccurate in their legal terminology. Another source adduced by Longo is Oem. 21.25: Ei7TEP aA'Y'J(J~ E7TE7TOV(JEtV Tav(J' & A€:YW, SiKa~ isia~ /-LOt 7TpOUT,KEV avr4J AaXEtV, T(;W ~v iJ.UlTUuv Kat TWV xpVUWV UTEcpaVWV Ti,~ Stacf>(Jopa~Kat Ti,~ • \ • , • , f3\' f3 ~ ~, • • ",. f3 ' (J ,,#.,....' 7TEpt TOV XopOV 7TaU'Y'J~ E'1TT1PEta~, Aa 'Y'J~, wv u Et~ TO UWJ.L v pw at o/f,J,Lt, Vf3PE~, ov J,LCt di' OVXt S'Y'J/-LOu~ KpivEtv aVTOV Kat TiJ.L'Y'JJ.L' E7Ta'YEtV 0 Tt XPT, 7Ta(JEtV 11 a7TOTEWal.. According to Longo, Demosthenes seems (wrongly) to include the graphe hybreos among the dikai, and she infers that the orator's legal terminology lacks precision (251-52). But if we read the following sections (not quoted by Longo) the apparent terminological confusion 12 In the Laws Plato often copies Athenian institutions and he may often use Athe­ nian technical terms, cf M. Pierart, Pfaton et fa cite grecque (Brussels 1974) 465-66. But the differences between the constitutions of Athens and Magnesia, as regards both the institutions and the nomenclature, are so great that it is impossible, on the basis of the Laws, to make any inference about how consistent the Athenians were in their legal terminology. 13 (1: e.g. Dion. Hal..pin. 635, discussed supra n.6. 14 Cf E. Drerup, Uber die bei den attischen Rednern eingefegten Urkunden (NJbb Suppl. 24 [1898]) 313-14. The authenticity of the inserted nomoi is a different prob­ lem, cf Drerup 297-305. 15 Cf e.g. Thuc. 4.118.8,5.18.4; Oem. 18.150. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 MOGENS HERMAN HANSEN 313 disappears. When Demosthenes opposes 8iKa~ l8ia~ AaXEtv to 8'T1J..W­ u~ KpivELv, he has no intention of drawing a line between private and public actions. He emphasizes instead the distinction between actions brought by a private citizen (/3A&/3.,.,~ and V/3PEW~) and actions brought by a citizen on behalf of the polis (7rP0/30AT,). The distinction is developed in 26 where Demosthenes states the reasons for bring­ ing a pro bote : 0 'TE yap xopor; .ry v 'T.ryr; 7r()AEwr;, r, 'T' eu(J7,~ 'T.ry~ €op'T.ryr; EivEKa IT'aUa 7rapEUKEV&'E'TO, eyw (J' <> IT'E7rOv(Jwr; 'TaV'Ta XOP'TIyor; .ryv. The whole argument is summarized in 28, and here Demosthenes correctly points out that the action hybreos is a graphe, and not a dike in the technical sense: JJ.7, 87, 'TOV'TO AEYELV av'Tov ean, on Kat 81.Ka~ l8ia~ 8i8wu' <> vOJ..W~ J..Wt Kat, ypalb7,v v/3PEwr;. The reader is only confused if he stops in 25 in the middle of the argument instead of proceeding to its conclusion in 28.16 Finally, in corroboration of her view that Athenian legal termi­ nology if often confused, Longo adduces some sources relating to the action for impiety. I leave out Plato's Laws (cj. 311f supra). The other passages are from Plato's Euthyphro, the Lysianic speech Against Andokides, and Demosthenes' speech Against Androtion. PI. Euthphr. 2A: EYE>: ... ov 'Yap 1TOV Kat ani 'YE 8iK7j 7'Le;" o~(Ta 71l'YxavEL 7rpOe;" Tal' {3a(J"LAEa W(T7rEP E/-Wi. LO: OVTOL 81] 'A07jva'ioi 'YE, 6J EvOv~pwv, 8iK7jV avrr,v KaAOVo-LV aAAcl 'YpacJy/w EYE>: Ti tfrOe;"; 'YpacJrhv (TE TLe;", We;" EOLKE, 'YE'Ypa7rTaL ... 5A-B: LO: Kat el ,.uv, & MEA7jTE, ~i7jV UV, EvO~pova O/-WAO'YEte;" (TOcPOV ElvaL Tel TOLa VTa , Kat opOWc; voJ.Ii.(,ELV Kat EJ,LE -rJ'YOV Kat 1-'7, ~, , ~, , " ~ ~ ~ - ' 'I. '_0 'I.' ~, , "" , oLKa'ov' EL oE 1-'71, EKELVep Tep uLuua"Ka~ AaXE uLK'"f/V 1TpOTEpOV 71 E/-WL ... KaL av 1-'7J /-Wt 7rEi07jTaL 1-'7j8E a~YI rile;" 8iK'"f/e;" 11 aVT' E/-WV 'Ypa~TaL (TE, aVTCl ,.. , , "... ~ , d I ~ , 17 TaVTa AE'YELV EV Tep utKaarr,pLcp a 1TpovKa'AoVI-'7jV aVTOV; Lyso 6.11: 'AVOOKi87jc;" 8E TO(TOVTOV KaTa7rE~pOV7jKE TWV OEWV ... W(TTE 7rptv ", ~_~ , ~ , " , ~ ''I. 'I. ' ~, , ... 71 E7rt~u7j1-'7jKEvaL uEKa 7j/-LEpac;" EV TTl 7rOAEL 1TpoaEKaAE(TaTO uLK7jV a(TE- {3Eiac;" 7rPOc;" Tal' {3a(TLAEa, Kat EAaXEV ... ~(TKWV TOV "APXL7r7rOV a(TE{3E'iv 7rEpi TOV 'Epl-'-ijv TOV EaVTOV 7raTpc'iKW. O 22 27 ~ , n' ,,, ,,, " , , A..L 0 ~ , y 0 em. 0 : rr,c;" a(TEpELae;" KaTa TaVT E(TT a7raYELV, 'Ypa'IIC(T at, utKa",E(T at 7rpoc;" EV/-WA7riooc;", ~i"EUI 7rPOc;" TO" {3a(TtAEa. First, Plato's use here of 8iK'TI/8tK&'Eu(Jat versus ypa~/yp&~u­ (Jat: it is a common linguistic phenomenon that, in a pair of anto­ nyms, one of the two opposed words may also be used to denote the 16 So, in 25, dike has its regular general meaning 'action' (comprising both private and public actions) whereas in 28, when opposed to graphe, it has the specific meaning 'private action', c/ 314 infra 0 An exact parallel to the use of dike in 25 can be found in Oem. 37.33. 17 In other passages the action is unambiguously described as a public action: "ypa­ fjlEa(Jat (5B bis), ucrf.{3Eiae;" "ypafjlEcr(JuL (5c, 12E), "ypu4YTIv "ypafjlEcr(Jm (2B, 3B), TTjv "ypu4YTIv fjlEVyELJI (6A), and r, 1TpO<; MeA.1]TOV "ypar/YY! (SA, 15E). HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 314 GRAPHE OR DIKE TRA UMA TOS? whole category, whereas the other invariably has its specific meaning. As an example let me adduce the antonyms T,J,LEpa and vve. Like the English word 'day', ..qJ,LEpa can denote both the twenty-four hour period and the daytime as opposed to the night hours~ whereas vvg invariably means 'night' .18 Similarly, of the antonyms BiKTJ and 'Ypa­ cPT" the word dike has both a general meaning 'action' (comprising both public and private actions) and a specific meaning 'private ac­ tion', whereas the word graphe only has the specific meaning 'public action'. The specific meaning of dike is much more common than the general meaning, which however can be found both in laws inserted in the forensic speeches and in the speeches themselves. A few examples will suffice: Oem. 24.54: NOMOL: oawv 8iKTJ 7TPOTEPOV ~YEVETO T1 Ev8vva T1 8ta8LKaaia I • ~ '" .~I ,,~ I 7TEpL TOV E II ULKaaTTJP~, 71 wu;t 71 U71/-Wau;t ... Oem. 46.26: NOMOL Eall TL~ ... avllT,YOPO~ eVil Aaf..L/3&vn XpT,f..LaTa E7Tt TaL~ 8iKaL~ Tat~ i8iaL~ T1 871/-WaiaL~ .. . I 3 46 ,." ., ~ "" ~ 8 ' . I S. . : KaL OVK all HaTJYYEI\.AEIi 7TpO~ TOll apxollTa KaKova aL TTJll E7TLKATJ- pOll ... aAA~ TE Kat ~IlWll TOVTWll nOll 8LKaw aKLll8vllWll ToL~ 8udKOVULll ouaWll Kat ~~Oll TctJ f30VAO~Il~ f30TJ8Etll TOt~ ~7TLKAT,POL~. Oem. 18.121: aAA' ou8' aiax.vllH c/>80110V 8iKTJll EiaaYWll ... (in a graphe paranomon) . These examples explain, in my opinion, the language used by Plato in the Euthyphro: Meletos' graphe asebeias against Socrates is some­ times referred to specifically as a public action, and is then correctly called a graphe. But sometimes Euthyphro and Socrates refer in general to the action brought against Socrates, in which case BiKTJ and BiKTJV Aa'YxaVELv are correct, but less common idioms. On the other hand, in Dem. 22.27, the verb BtKa~Eu(Jat in all probability refers to a private action, for it is explicitly set off against (17Ta'YEtV, 'YpacPeu(Jat, and 'YpacPetV~ and Longo's only reason for rejecting this interpretation is her a priori' belief that there cannot have been a dike asebeias of any kind, not even to the Eumolpidai. So Lys. 6.11 is the only confusing passage. It is not impossible that the speaker does refer to a dike asebeias to the basileus, and it is worth pointing out that Andokides' action probably relates to a Her­ mes dedicated by Andokides' family,19 i.e., a case in which Andoki- 1~ Other examples in Greek are ~%vlav(}pwrro<;, xwpalauTV, etc. For the linguistic phenomenon (sometimes called participatory opposition) (f J. Lyons, Semantics 1 (Cambridge 1977) 307-08, 'semantic marking'. Examples of 'formal' (instead of se­ mantic) marking can also be adduced, e.g. OOKtJ.,UXuiaICmoOOKtJ.,UXuia, where OOKtJ.,UXUia means (a) examination, (b) acceptance on examination, whereas a1rOOOKtJ.,UXuia always means rejection on examination. 19 Cl D. M. MacDowell, Alldocides 011 the Mysteries (Oxford 1962) 5 with n.6. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 MOGENS HERMAN HANSEN 315 des, as the wronged person, was entitled to bring a private action. On the other hand, I will certainly not preclude the possibility that all actions to the basileus for impiety were public actions, in which case the speaker of Lys. 6 must use dike in the general sense 'private action'. Here, for once, the reader is bewildered by the terminology, and there is no indication in the context that allows him choose between the two meanings of dike. The attested fact, however, that the word dike is sometimes used in a general sense, even in refer­ ences to graphai and other public actions, cannot be adduced in support of the opposite view that graphe can be used in references to a dike in the specific sense 'private action'. Aeschines 2.93 mentions an epibole incurred by Demosthenes for withdrawing his graphe traumatos against Demomeles. In Apagoge 109 I compared this fine to the 1000 drachmas for withdrawing a public action. Questioning my interpretation, Longo (254-58) points out, correctly, that epibole in other sources denotes a fine imposed by a magistrate. But the Areopagites were not magistrates and the council of the Areopagos was not a regular board of archai.20 So on any interpretation we have to admit that the fine incurred by Demos­ thenes is a case apart and cannot be an ordinary epibole imposed by an arche. Admittedly we have no information that Demosthenes was fined 1000 drachmas. But this is of minor importance. What I wish to argue is that the epibole mentioned in Aeschin. 2.93 is analogous with the fine of 1000 drachmas for withdrawing a public action and serves the same purpose, viz. to discourage sycophants, and this points to a public rather than a private action. I take no position on the questions whether Demosthenes had to pay exactly 1000 drachmas, or whether the fine was automatic or had to be imposed by a special act of the council of the Areopagos. In homicide actions heard by the Areopa­ gos many procedural rules were slightly different from the rules applied in actions heard by the people's court: the anakrisis took the form of three prodikasiai, the antomosia took the form of a solemn diomosia connected with a sacrifice, and, contrary to the normal practice, witnesses in homicide trials had to take an oath.21 Longo prefers a modified form of the traditional view that BiKat cpOlJOV Kat Tpavp.aTO(} EK npolJoLa(} differed from other private actions in that a fine could be imposed for withdrawing the indictment. Her modification is that the fine was not automatic but imposed only if 20 Ct: M. H. Hansen, "Seven Hundred Arc/wi in Classical Athens," GRBS 21 (1980) 172-73. 21 0: D. M. MacDowell, Athenian Homicide Law (Manchester 1963) 34-37 (prodika­ sian, 92 (diomosia), 98-100 (oath of witnesses). HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 316 GRAPHE OR DIKE TRA UMA TOS? the Areopagos decided that the withdrawal of the action was due to a misuse of the action and not to a genuine reconciliation between plaintiff and defendant. Again, however, I emphasize that the only evidence supporting this view is the epibole mentioned by Aischines in connection with Demosthenes' graphe traumatos against Demome­ les. In all descriptions of the dike phonou or traumatos ek pronoias there is not the slightest evidence of any fine for withdrawing the dike. Furthermore, Aischines' mention of the epibole is too brief to allow us to decide whether the fine was obligatory or discretionary: if the fine was automatic, the Areopagos would have to report the withdrawal of the action to the praktores, who would then record Demosthenes as a debtor to the state if he did not pay.22 If the fine was discretionary, the Areopagos would have to debate the with­ drawal and to take a vote on the fine. Aischines gives no informa­ tion, and I suspend judgment. We may turn now to the possible relationship between the dike and a graphe traumatos. Longo (258-60) maintains that klope is the only other offence for which the coexistence of a dike and a graphe is attested (259). But this statement is only true if we accept her a priori assumption that atKa~Eu8m cannot mean 'to bring a private action' in D 22 27 ,.., , {3' ' ''' " , , , '..I., 8 em. . : 'T"fJC; aUE EtaC; Ka'Ta 'Tav'T EU'T a7TaYELlJ, ypaH," ZSav 82 (I965) 302-09; A. R. W. Harrison, The Law Ql Athens I (Oxford 1968) 168-69; D. M. MacDowell, "Hybris in Athens," G&R 23 (1976) 14-31, and The Law in Classical HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 318 GRAPHE OR DIKE TRA UMA TOS? drachmas if he withdrew the action before the hearing or, at the hearing, obtained less than 1/5 of the votes of the jurors. Further­ more, if his opponent was fined, the money would go to the treasury and not to himself. In a dike aikeias there was no fine of 1000 drach­ mas and the prosecutor would recover damages if he won the case. So the alleged masochism in bringing a graphe hybreos rather than a dike aikeias was even more flagrant than in the case of trauma (where even a dike would bring the prosecutor no profit). Nevertheless in the forensic speeches we have some well attested examples of the victim mentioning a graphe hybreos as a possible alternative to a dike aikeias.28 Admittedly, we have few examples of the application of the graphe hybreos,29 but if the victim's bringing of a graphe instead of a dike was an unbelievable masochism, no speaker would have men­ tioned the alternative to the jurors. The explanation may well be that the rules for bringing a graphe or a dike were more complex than we tend to believe, which leads me to my final observation. (d) A prosecutor in a graphe had to pay a parastasis (probably only a nominal fee), but if he withdrew his action or obtained less than 1/5 of the votes of the jurors, he was fined 1000 drachmas. Such a fine did not apply to dikai, but in most dikai both parties had to pay a fee called prytaneia, and the man who lost the suit would have to refund to his opponent the prytaneia he had paid. The prytaneia were three drachmas in minor and thirty in major cases.30 So for a prosecutor who lost a major case the prytaneia amounted to 2 x 30 = 60 drach­ mas, a considerable sum for an ordinary Athenian. Thus a prosecutor who was confident that he could persuade more than a fifth of the jurors, but less confident that he would win the case, might find that it was safer to bring a graphe than a dike. We do not know whether a prosecutor in a dike traumatos had to pay prytaneia or not, but if he had, all discussion of 'masochism' is futile. Athens (London 1978) 129-32, who admits, however, that "there is a considerable overlap between the scope of a graphe for hybris and the scope of a dike for battery, violence, slander and so on" (130). 2R Isoc. 20.2; Oem. 54.L Lys. fr.126 Sauppe. 29 According to Theon (Walz I 155, Spengel II 63) both Lysias and Lykourgos had published several speeches in actions for hybris: Tel n AvU"wv Kat AVKOVPYOV EK rwv n;" vl3ptw<; AOyWV. Known (but lost) speeches are Lys. fr.136 Karel KaUwv vI3Ptw<;, fr.225 1TPO" LwU"rparov vI3Ptw<;, Is. fr.18- 25 Karel 4WKAEOV'i vI3Ptw<;, Din. fro Iviii Karel npO~EVOV vI3Ptw<;, fr. lix a1ToAoyia vl3ptw<; 'E1TLxaPH 1TPO" tAwra~h/V (all fragments after Sauppe). Other examples are Is. 8.41 (the action is still pending) and Oem. 45.4 (the action is brought when all dikai were suspended). 30 On the prytaneia and the parastasis see W. Wyse, The Speeches of Isaeus (Cam­ bridge 1904) 330-31, and Lipsius (supra n.3) 824-28; for the fine of 1000 drachmas, M. H. Hansen, Eisangelia (Odense 1975) 29-30. HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 MOGENS HERMAN HANSEN 319 I take no position on these questions, but will only emphasize that arguments based on the alleged similarities or differences between a dike or a graphe fraumafos are of no value since we do not have sufficiently reliable and detailed information about the prosecution, the trial, and the penalty, neither generally in relation to graphai and dikai, i.e., public versus private actions, nor specifically in relation to the dike and graphe traumatos. After this discussion of the possible relation between a dike and a graphe fraumatos I return to the four passages which, in my opinion, prove the existence of a graphe traumatos ek pronoias heard by the council of the Areopagos and involving a fine to be imposed if the prosecutor withdrew his action before the hearing (Oem. 54.18, Aes­ chin. 2.93, 3.51, 212). According to Longo, the terminology used in all four passages lacks precision and is open to other interpretations, viz., that graphe does not denote a public action, but the written document (in a dike traumatos). In order to avoid the recognition of a graphe traumatos Longo is almost hunting for other sources in which the use of the terms dike and graphe, allegedly, lacks precision and is confused. The hunt (over several thousand pages) has resulted in less than a score of passages, and even here the confusion is often created by Longo's interpretation of the source than by the source itself. Furthermore, not a single one of her examples of confused terminology shows that the idioms ypa~7J v ypa¢Ea-(Jat and ypa~iJ/ ypa¢Ea-(Jat + genitive can be used in descriptions of private actions. Apart from Plato's Laws (not explicitly describing Athenian institu­ tions), a late rhetorical note (not a reliable source for legal termi­ nology), and a passage in Demosthenes (dealing with international litigation), the sources discussed relate to one of the following idio­ matic usages: (a) Of the antonyms dike/graphe (private and public action), dike is the word used when the reference is to the whole category. So dike regularly has the specific meaning 'private action' but may have the general meaning 'action' (private and/or public), whereas graphe al­ ways has the specific meaning 'public action'. (b) Graphe is a special type of public action, but, since most public actions were graphai, the word graphe is sometimes used in the more general sense 'public action', even in references to other types of public action (e.g. eisangelia or apographe). (c) Instead of 'public action' and 'to bring a public action', the words ypa~iJ and ypa~Ea-(Jat may sometimes mean 'written document' and 'to draw up a document in writing'. In a few cases these terms are even applied in descriptions of private actions, but, first, this usage is HANSEN, MOGENS HERMAN, "Graphe" or "Dike Traumatos"? , Greek, Roman and Byzantine Studies, 24:4 (1983:Winter) p.307 320 GRAPHE OR DIKE TRAUMA TOS? extremely rare and, second, there is no example of this usage when the offence is added as an objective genitive, or when the idiom used is the schema etymologicum ypa~ v ypac/JEu(Jat. In conclusion, leaving aside the four passages referring to a graphe traumatos, we have several hundred other passages where the terms BiK"fJ/BLKa~E(J(Jat and ypa~/ypac/JEu(Jat are consistently and unam­ biguously used. Out of the score of sources adduced by Longo I can agree in only three or four cases that the terminology is confusing. On the contrary, my conclusion is that the Athenian legal termi­ nology concerning dikai and graphai is surprisingly precise, and so I maintain my view that the Athenians allowed both a dike and a graphe traumatos ek pronoias to be heard by the Areopagos. THE UNIVERSITY OF COPENHAGEN November, 1983