KODA I
Journal of Ancient History
Volume 16 (2015)

Proceedings of the Second Euro-Japanese Colloquium of theAncient Mediterranean World : Social Norms and Public Sphere(held at University of Tokyo in 2009.3.27-29)

Published by the Editorial Board of KODAI, TokyoOut-of-Court Settlement and Public Opinion
in Democratic Athens*
SATO Noboru (Kobe University)
Introduction
Out-of-court settlement played an important role in ‘litigious’ Athens and was legallybinding in private disputes1. In public cases, however, out-of-court settlement was often
regarded as a betrayal of the public interest. According to Lycurgus,
Three things are most responsible for guarding and protecting the
democracy and city’s prosperity: first, the system of laws; second, the vote of
the jurors; and the third, the trial, which bring crimes under their control.
… Neither the law nor the judges’ vote therefore has any force without aprosecutor to bring the wrongdoer before them (Lyc. 3-4).
In classical Athens, however, there were no state prosecutors responsible for bringing
charges in the interest of the polis, except in a few serious cases. Normally public charges
were brought by volunteer prosecutors on their own initiative 2 . How, then, did theAthenians deal with withdrawing a public charge? I shall start by considering theAthenian law code, and then move on to possible ways to ‘withdraw’ a public charge,
paying attention to some procedures which have been often neglected: particularly

dropping an eisangelia and making use of a hypômosia. Finally I shall discuss the role ofpublic opinion in this problem3.
Laws against Withdrawing Public Charges
First of all, according to Theophrastus, prosecutors who failed to carry through a public

case were penalized in Classical Athens. A fragment of Theophrastus’ On Laws contained*

I owe thanks for helpful comments and suggestions to the participants of the second
Euro-Japanese Colloquium at the University of Tokyo in 2009 and to Dr. B. Gray, Mr. M.
Miyazaki, and Prof. P. J. Rhodes.

1
2

D. 36.25; 37.1; [D.] 58.20; On arbitration and reconciliation in Classical Athens, see Scafuro 1997.
D. 20.146; Aeschin.1.19; Harrison 1968-71: ii. 34-35; Todd 1993: 92; Christ 1998; Rubinstein 2000:

passim.
3

At least from the strictly ethical point of view, would-be prosecutors who did not bring their cases
to court were also regarded as neglecting the public interest. e.g. a proedros who did not prosecute
his accused offender could be criticized for neglecting justice (D. 21.39). Partly because of limited
space, however, in this paper I constrain my researches to withdrawing a public case once
initiated.

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in the Lexicon Rhetoricum Cantabrigense reports as follows:Πρόστιµον: ἔκειτο τῷ µὴ µεταλαβόντι τὸ πέµπτον µέρος τῶν ψήφων, ὡςΘεόφραστος ἐν πέµπτῳ περὶ νόµων· ἐν δὲ τοῖς δηµοσίοις ἀγῶσιν ἐζηµιοῦντοχιλίαις καὶ πρόσεστί τις ἀτιµία, ὥστε µὴ ἐξεῖναι µήτε γράψασθαι παρανόµων
µήτε φαίνειν µήτε ἐφηγεῖσθαι· ἐὰν δέ τις γραψάµενος µὴ ἐπεξέλθῃ, ὁµοίως·περὶ δὲ τῆς εἰσαγγελίας, ἐάν τις µὴ µεταλάβῃ τὸ πέµπτον µέρος τῶν ψήφων, οἱδικασταὶ τιµῶσιν.
In Athens those who brought a public action (ἐν δὲ τοῖς δηµοσίοις ἀγῶσιν) but failed to gaina fifth of the vote were liable to a fine of 1,000 drachmae and in addition a sort of
disfranchisement (τις ἀτιµία), loss of the right to bring some sort of prosecutions, was also

inflicted4. Those who brought a public case but did not follow it through were liable to thesame penalties (ἐὰν δέ τις γραψάµενος µὴ ἐπεξέλθῃ, ὁµοίως)5. This fragment, therefore,
gives us a general idea that prosecutors of most public cases were liable to punishment if
they withdrew. Attic orations in the fourth century attest the legal regulations concerning
those who did not follow through their public cases. In [D.] 58.5-6, for example, Epichares,

prosecuting Theocrines at an endeixis, cited a law on prosecutors who did not obtain afifth of the vote and on those who did not follow through with their cases. According toEpichares, it was enacted so that “no one should bring forward baseless charges(συκοφαντῇ) or make profit with impunity and abandon the interests of the state (καθυφιῇτὰ τῆς πόλεως).” Presumably the latter part was thought of as the purpose of the regulation
concerning those who did not follow through their public cases.
Despite Theophrastus’ explicit explanation, the penalty is not clear. No contemporary

source states that both a fine and atimia were inflicted on those who did not follow

through with a public case. Some mention only a fine of 1,000 drachmae. In the case of
Theocrines, for example, Epichares brought an endeixis against him, partly because he

had not paid a fine of 1,000 drachmae, which had been inflicted on him since he did notbring a phasis against Micon to trial ([D.] 58.6). The speaker does not claim that atimia
was inflicted on Theocrines because of his withdrawal of this case. Aeschines also suggeststhat Demosthenes did not prosecute his graphê and was fined, but does not refer to atimia(Aeschin. 2.93)6. A fragment of Lysias refers only to the thousand-drachmae fine one has to4

Latte 1965: 86 — and the text is quoted by Harrison 1968-71: ii. 83 n. 2. The meaning of tis atimia
has been interpreted as loss of the right to bring the same type of prosecutions (Hansen 1976:
63-65; Todd 1993: 143; MacDowell 1990: 327-328). Harris argues that all public cases wereprohibited (Harris 1999: 408-410).

5

On the fragment, see MacDowell 1990: 327-328; Harris 1992; Harris 1999. Harris’ argument isbased on Scholia to Dem. 19, which slightly differs from Lex. Rhet. Cant. and which does notcontain the regulation concerning not following through a public case, or the one concerningeisangelia.
6

On the matter of legal procedure concerning this case, Hansen 1983. Wallace 2006 states that“the constitutional facts must have made sense to the dikasts”(62).

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pay when one fails to prosecute after filing a graphê7. In the case of Euctemon, however,

only atimia is mentioned. According to Demosthenes, Euctemon, having prosecuted theorator for desertion (lipotaxiou), did not appear at an anakrisis, a preliminaryinterrogation, and failed to bring the case to the law court. As a result, as Demosthenes
says, Euctemon had made himself atimos (D. 21.103).

Two explanations have been proposed. On the basis of Theophrastus and the case ofEuctemon, Edward Harris claims that those who failed to bring a public charge to the law
court were liable not only to a fine of 1,000 drachmae but also to partial atimia, that is,loss of a right to bring a public case for ever8. He assumes that the sources mentioning
only a 1,000-drachma fine do not tell the whole truth. As Wallace noted in his paper,
however, if Theocrines was legally deprived of the right to bring a public case because of
not following through with the case, “Epichares had every reason to mention it” at theendeixis against Theocrines9. The prosecutor, nevertheless, refers to a 1,000-drachma fine

only and explains that the defendant had no right to prosecute because of his unpaid fine.
Wallace, therefore, doubts the fragment of Theophrastus as a source and claims thatatimia was inflicted only on prosecutors who failed to carry through a graphê lipotaxiou,
as in the case of Euctemon.
It seems also possible to argue that atimia was an additional penalty, as suggested by
the word “πρόσεστί”10. In many cases, additional penalties were inflicted on those who
failed to pay the standard penalty (D. 21.44) or those who did not meet the terms of therules about atimoi ([Arist.] Ath.Pol. 63.3). In these cases, the council, the law court ormagistrates usually decided further penalties, whether at the trials or later. We do notknow how often additional penalties were inflicted. But presumably they were notautomatically inflicted in addition to the original one. This may be also the case with those7τὰς χιλίας δραχµάς, ἃς δεῖ ἀποτίνειν ἐάν τις µὴ ἐπεξέλθῃ γραψάµενος., Lex. Rhet. Cant. s.v.
Ἐπιτίµιόν = Lys. fr. XI.19 Carey. This procedure is also controversial. On this trial, see Wallace
2006: 64; Carey 2007: 319-321.

8

Harris 1999; Harris 2005.

9

Wallace 2006: 60.

10Additional penalties: D.21.44: “For how is it that if a man who has lost his case fails to pay, thelaw thereupon is not content with a private suit for ejectment (dikê exoulês), but directs theimposition of a further fine to the treasury (προστιµᾶν ἐπέταξε τῷ δηµοσίῳ)?” ; D.24.83: “and so thedebtor would have been obliged not only to pay in full the amount of the debt as recorded, but also
to liquidate the penal payments legally added thereto (τὰς ἐκ τῶν νόµων προσούσας ζηµίας).”;D.24.114: “If a man was found guilty on a private prosecution for theft, while the normal penalty
was double reparation, the court was empowered to add to the fine the extra penalty of
imprisonment (προστιµῆσαι δ᾽ ἐξεῖναι τῷ δικαστηρίῳ πρὸς τῷ ἀργυρίῳ δεσµὸν τῷ κλέπτῃ) for fivedays and as many nights, so that everybody might see the thief in jail.”; [Arist.] Ath.Pol. 63.3: “Ifany unqualified person sits on a jury, information is laid against him and he is brought before thejury-court, and if convicted the jurymen assess (προστιµῶσιν) against him whatever punishment
or fine he is thought to deserve; and if given a money fine, he has to go to prison until he has paid
both the former debt, for which the information was laid, and whatever additional sum has been
imposed (προστιµήσῃ) on him as a fine by the court.”; Cf. Plat. Laws 767e, 943b.

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who failed to follow through with the legal procedure. Tis atimia may not have been

automatically imposed on them. Whether partial atimia was stipulated only for graphê
lipotaxiou or occasionally incurred as an additional penalty, some prosecutors seem tohave been punished with a fine of 1,000 drachmae only.
There seems to have been another limitation on the rule against withdrawal of public
cases. The punishments did not seem to be applied to every sort of public suit. No extant

source mentions any rule against dropping an eisangelia. Theophrastus, after reporting
the penalties for other types of public cases, adds the special penalty on those who did not

obtain 20% of the vote in the case of eisangelia, but does not mention any penalty on those

who did not carry through an eisangelia11. Although Hansen argues that a 1,000-drachma
fine was inflicted on a citizen withdrawing an eisangelia or any other type of public case12,

Libanius’ Hypothesis on Demosthenes 25. 2-3, on which his argument is mainly based,

reports that Aristogeiton was fined one thousand drachmae when he prosecuted Hegemon
and failed to get one-fifth of the votes, not when he dropped the case. On the other hand,several sources, although they are not explicit, suggest that prosecutors of any kind of

eisangelia were not punished, even when they did not obtain 20% of the votes or withdrew

the case, until shortly before 33013.

Even after that, [Arist.] Ath.Pol. 56.6 suggests that this sort of exemption was applied tothe eisangeliai or graphai against various kind of maltreatment14. While Ath.Pol. uses theword graphai, scholars have generally agreed that this procedure was eisangelia. However,some keep a cautious attitude about this identification. Whatever the case may be, publiccharges against maltreatment of orphans or parents could be withdrawn without penalty,
even after 330 BC.
So far we have looked at the law code relating to not following through a public case. On
the one hand, the Athenian legal system clearly showed the polis’ attitude towards notproceeding with a prosecution. From the legal point of view, Athenian prosecutors were
11

Lex. Rhet. Cant. loc.cit.

12

Hansen 1975: 107-108 assumes that the prosecution against Hegemon mentioned in thishypothesis was in fact an eisangelia mentioned at [D.] 25.47 and Aristogeiton did not lose but
withdrew it, as the wording of the oration (τὴν καθ᾽ Ἡγήµονος εἰσαγγελίαν … ἀπέδοτο) suggests (cf.
Hansen 1991: 214). His assumption is, however, refuted by Rhodes 1981: 630; Rubinstein 2000:
119-120.
13

Ath.Pol. 56.6; Hyp. 1. Lyc. 8, 12; Pollux 8.52-3; Rhodes 1981: 629-630. Cf. Rubinstein 2000:
115-117 argues that even after 330, eisangelia entailed no risk for a prosecutor. Whitehead 2001:
124 holds off on making a decision whether Hypereides (1. Lyc. 8, 12) refers to prosecutor’s
general advantage over defendants or exceptional feature of eisangelia.

14

Graphai kakôseôs mentioned here are usually taken as eisangeliai kakôseôs. On thisidentification, see Harrison 1968-71: i. 117-18; Rhodes 1981: 629-630. Todd 1993: 107-108, 114
n.10 keeps a cautious attitude. While accepting eisangeliai for various types of maltreatment,
Avontins 2004 argues that Ath.Pol. 56.6 refers only to graphai and that only graphê goneôn

kakôseôs was risk-free. His argument, however, does not refute that public charges against
maltreatment of orphans or parents, whether an eisanglia or a graphê, could be withdrawn
without penalty. See also n. 16 below.

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supposed to follow though a public case, once they had formally initiated it. On the other,
the laws had some limitations, too. First of all, at least in some cases, the punishment was,presumably, a 1,000-drachma fine only, less severe than partial atimia. Secondly, no
penalty was inflicted on prosecutors who did not carry through an eisangelia and possibly

a graphê kakôseôs.

Dropping a Public Charge
In spite of the existence of a law code prohibiting the withdrawal of a public charge,
withdrawing a public charge seems to have been not entirely uncommon. In the trial
against Theocrines, Epichares criticizes the defendant for withdrawing an indictment(graphê) against Polyeuctus for money ([D.] 58.31-32). Nothing suggests, however, that

Theocrines was liable to a fine or partial atimia as a result of this withdrawal. Epichares’

silence in the endeixis suggests rather that Theocrines withdrew his indictment but was
not liable to any punishment at the time of the trial of the endeixis against him. The legal

procedure against Polyeuctus was either a graphê or an eisangelia kakôseôs orphanôn15.
Theocrines, therefore, legally dropped this case without any penalty, as we have seen,
though this withdrawal is ethically criticised as abandonment of an orphan16.
According to Apollodorus, when Stephanus had brought a suit against Phrastor (ἐγράφη
Στέφανος οὑτοσὶ ὑπὸ τοῦ Φράστορος πρὸς τοὺς θεσµοθέτας), the latter indicted the former
for giving an alien woman to an Athenian citizen. When the defendant came to terms withthe prosecutor and relinquished his claim, Phrastor dropped his case ([D.] 59.53). The
prosecutor may have intended from the very beginning not to prosecute in court as long as
the defendant would drop his claim. Stephanus was again prosecuted for unlawful
imprisonment by Epaenetus (τὴν γραφὴν γεγραµµένου). This time the defendant
submitted their dispute for arbitration and the prosecutor withdrew the indictment (τὴνγραφὴν ἀνελέσθαι τὸν Ἐπαίνετον. [D.] 59.68-69). In both of the cases, the prosecutors are

not criticized for dropping their cases at all.
E. Harris assumes that prosecutors were formally allowed to withdraw their charges

with impunity at the anakrisis, the preliminary interrogation by the magistrates. For

15

The procedure is often taken as an eisangelia. e.g. Harrison 1968-71: i. 118 n.1; Osborne 1985: 48;

16

Harris 1999: 134-135 presumably takes this case as an example of withdrawing a graphê without

Rubinstein 2000: 109 n.81, 206; also see n. 14 above.
penalty. Wallace 2006 claims that the prosecutors who withdrew their charges were punishedonly when they did this for payment and points out that financial gain is stressed in this case as
well as others (61). Since this procedure is exempted from the penalties on withdrawal of the
public cases, the alleged monetary gain here has nothing to do with the punishment. Avotins 2004
argues that only the graphê goneôn kakôseôs was azêmios and that the penalty-free eisangeliaikakôseôs were introduced possibly around the end of fifth century and the graphai kakôseôs were‘of no interest any longer to a prosecutor’ (esp. 468). If he is right, Epichares may rhetoricallychoose the word ‘graphê’ rather than ‘eisangelia’ in order to obscure the fact that an eisangelia
was risk-free.

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Harris “follow through” (epexelthein) can cover both bringing the case to trial and turning
up at the anakrisis and withdrawing the charge at that point, and for him it is only failingto turn up at the anakrisis or the subsequent trial which would count as abandoning thecase. In fact, neither Euctemon nor Theocrines, who are mentioned as liable topunishment in forensic speeches, attended the anakrisis (D. 21.103; [D] 58.8). On the one
hand, Harris’ theory is possible and may be supported by Hyperides’ Against Diondas,

according to which one of Diondas’ friends asked him to stop his prosecution at the

anakriseis17. Strictly speaking, on the other hand, it is only proved that prosecutors who
did not attend the anakrisis were liable to penalties, not that they had a right to withdraw
a public charge there.

Another possibility is that, if partial atimia was not automatically inflicted on allprosecutors who withdrew their own charges, some of them may simply have paid a fine of
1,000 drachmae. A fine of this magnitude was not necessarily too expensive for wealthy
citizens to pay18.

Athenian prosecutors did not merely withdraw their public charges de jure, but madeuse of another way to drop a prosecution de facto. Hypômosia, an oath for postponement,

seems to have been a common means19. It is true that the oath was just for postponing, notfor withdrawing a legal action. But unless the prosecutor restarted the legal procedure, it
was suspended and could presumably be hushed up in the end. Epichares, who in vain
asked Demosthenes to help him to prosecute Theocrines, reveals that hypômosia wascommon for litigants as a means to avoid litigation in the law court ([D.] 58.43). According
to him, Theocrines prosecuted Demosthenes for proposing an illegal decree (graphê

paranomôn), fixing the penalty at ten talents. The prosecutor, however, allegedly thendischarged him from the indictment by hypômosia. When the case was called (καλουµένηςτῆς γραφῆς), someone made an oath for postponement on behalf of the defendant. The
prosecutor neither made a counter-oath nor subsequently called the case for trial again. It

is true that the speaker seems to exaggerate. When the speaker initiated the endeixis, hestill thought of Demosthenes as an enemy of Theocrines, which means that Demosthenes
must have made a hypômosia after the first step of the endeixis against Theocrines.
Therefore, it cannot have been a very long time after the hypômosia was made for
Demosthenes that the trial over the graphê paranomôn could be recognised as dropped,

not just suspended. The strategy, nevertheless, seems possibly to have been common.
Athenians could with impunity evade reopening the prosecution for several years oncesuspended. Aeschines reopened his prosecution against Ctesiphon on Demosthenes’ crownsix years after it was initiated in 336 BC. Similarly Diondas delayed bringing his17“καὶ πρὸς ταῖς ἀνακρίσεσιν δεῖται αὐτοὺς ( = prosecutions) παύσασθαι, … (174r. 28 Carey et al:2008).” Even in this case, however, it is uncertain how Diondas could ‘stop’ his case. He could
suspend it with a hypômosia, an oath for postponement.

18

Cf. D.21.88.

19

On hypômosia generally, see Thalheim, in RE, s.v. ὑπωµοσία; Thür in Der Neue Pauly, s.v.
Hypomosia; Harrison 1968-71: ii. 155-156.

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prosecution of Hyperides to court from 338 to 33420. Moreover, if a defendant made an oathof hypômosia under mutual agreement with the prosecutor, as told at [D.] 58.43, the latter

was less likely to be accused of failing to carry through his public case, even if he did notreopen it, since the suspension was caused by his opponent21.
There may be another example of the same or similar tactics. When Demosthenes

proposed a trierarchic law, he was prosecuted but won the case (D. 18.102-103). At thesame time, the wealthiest citizens came and offered him a huge amount of money “not topropose the measure, or, failing that, to abandon and leave it alone with a hypômosia(καταβάλλοντ᾽ ἐᾶν ἐν ὑπωµοσίᾳ)”. The last part of the passage I have just cited is not clear
enough, but it has been taken as follows: Demosthenes was asked to neglect his new law,once someone had initiated the legal action against him with an oath called hypômosia22.

Although the oath to start a graphê mê nomon epithêdeion theinai could have temporally

suspended the law, the aim of the wealthiest citizens must have been complete
nullification of the new law23. In order to abolish it, they must have asked Demosthenes to
do some further action. It may have been his defeat in a popular court, but this tactic was

obviously insecure for the prosecutors and dishonorable for Demosthenes. Even defeat inabsentia would have been disgraceful for the defendant, since public announcement of theresult would have surely diminished the reputation of the politician, who was proud of
this legislation24. More attractive is an indefinite suspension (i.e. withdrawal de facto) of

the trial with a hypômosia for ‘postponement’, as in the case of [D.] 58.43: the wealthiest
citizens may have asked the defendant to make an oath to postpone the trial. If the
defendant had agreed to this offer, the prosecutor would not have needed to do any more tonullify the new law, since it would be suspended forever unless the prosecutors themselves
reopened the trial. Another possibility is that the wealthiest Athenians asked
Demosthenes not to make a counter oath when they themselves make one forpostponement.
When Apollodorus prosecuted Phormio, the charge was ‘evaded’ for a while (τῆς γραφῆςἐκκρουοµένης), according to the prosecutor (D.45.4). The defendant may have used ahypômosia in order to suspend the procedure, though we have no clue. Or the indictment
may have been actually suspended by the magistrates for some reason. In the meantime,
20

Horváth 2008; Horváth 2009; Rhodes 2009.

21

Indeed, as far as we know most of the oath for postponement mentioned in Attic orations weremade by the defendant’s parties (D.21.84; 39.37; 47.39; [D.] 58.43). This must reflect a strategy ofAthenian litigants, since it is unlikely that a prosecutor was legally prohibited from making anoath for postponement. An exception is D. 48.25, which refers to a hypômosia made before an

epidikasia trial. Cf. Sato 2010.
22
23

Goodwin 1904: 62; Wankel 1976: 565-66; Hansen 1974: 36 (Cat. 25); Yunis 2001: 171.
It seems strange at least to me that any citizen could suspend for ever (i.e. nullify de facto) any
law which was once passed, by just making an oath to initiate a graphê mê nomon epithêdeion

theinai. I argue elsewhere that the hypômosia mentioned at D.18.103 would be an oath for
postponement (Sato 2010). Only later sources explicitly refer to the hypômosia to initiate agraphê mê nomon epithêdeion theinai or a graphê paranomôn (Pollux 8.56; Plut. Moralia 848D).
24

D. 18.102, 107-108.

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the litigants and Apollodorus’ mother had a meeting about their reconciliation. The
speaker does not mention what happened to the prosecution after that, but abruptly
changes the topic. It is likely that it was either still suspended at the time of the trial
against Stephanus for perjury or had been withdrawn by then, either de facto or de jure.

As we have seen, Athenian prosecutors could and did “withdraw” their cases and someof them clearly knew how to evade the penalty. Interestingly, in most of the cases
mentioned above, some sort of private negotiations took place before the withdrawal(D.18.103; 45.4; [D.]58.31-32, 43; 59.53, 68-69). The private negotiation between theparties became most important when they tried to suspend a suit with a hypômosia.

Otherwise, the opponent could make a counter oath25. A number of accusations against
prosecutors of being paid to drop a public suit presumably indicate that a prosecutor of apublic case easily found opportunities for private negotiation with his defendant26. Inclassical Athens, therefore, public suits, which usually depended on an unofficial
volunteer prosecutor, could often be abandoned through litigants’ negotiation in theprivate sphere.
The Athenian Attitude towards ‘Selling the Public Interest’
In this final section, I would like to survey Athenian attitudes towards dropping a public
case. In some cases, the Athenians must have added more pressure on volunteer
prosecutors by their pronouncements in the public sphere. In forensic speeches, manyprosecutors are accused of ‘dropping cases’, as if they were damaging the public interest of
the polis. A prosecutor of Epicrates explained why they came to the law court in spite ofthe defendants’ pleas:Now, we have refused to be traitors, and we expect no less of you: reflectthat you would be highly incensed with us, and would punish us at any
opportunity, as criminals deserve, had we come to terms with these men,either by taking payment or by any other means. Yet if you are incensed
with those who do not go through with their suit as justice requires, surely
you are bound to punish the actual offenders (Lys. 27.14).
The speaker makes it clear that popular opinion in the public sphere could create pressure
on them to come to the law court. Although he may have rhetorically fabricated such‘public opinion’ to win the lawsuit in this particular case, the statement suggests that25

D.48.25 (epidikasia); [D.]58.43 (graphê paranomôn). According to D.48.26, when Olympiodorus’hypômosia was rejected by an antypômosia, not only did he fail to suspend the trial, but his claim
was struck out in accordance with the law. Beyond rejecting the suspension of the procedure, we
do not know what happened when a hypômosia was rejected in the case of public suit.
26

Not prosecuting or dropping a public suit for money (including dubious cases): e.g. Lys. 6.11; 20.7,
10, 15; 25.3, 9, 26; 27.14-15; 29.1; Aeschin. 2.93, 148; 3.52; D. 21.3, 39; 25.47, 49-50; 58.6, 8, 12-13,
32, 33, 35, 62; Din. fr. II.4 Conomis.

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public indignation against withdrawal of the public case could be instigated, at least incases which attract people’s attention.
Demosthenes also refers to the importance of the people’s opinion. According to him,
when he was going to prosecute Meidias for his hybristic attack, Demosthenes was offereda large amount of money to refrain from prosecution, but he did not accept it (D. 21.3). At
the same time, many fellow citizens came and urged him to prosecute the offender (D.
21.2). Towards the end of the speech, the prosecutor refers to the situation in which theprobolê was held.

At the actual time of the offence it was obvious that you (= those in theassembly at the time of the probolê) all felt angry and bitter and severe sothat, when Neoptolemus and Mnesarchides and Philippides and those veryrich men one and all were making their pleas both to me and to you, you
kept calling out ‘Don’t let him off,’ and when Blepaeus the banker came up
to me, you let out such a shout, thinking that I was going to take a bribe,‘the same old story!’ that I was startled by your clamor, Athenians, and let
my cloak drop so that I was half-naked in my tunic, trying to get away fromhis grasp, and when you met me afterwards, “Mind you prosecute theblackguard,” you cried; “don't let him go; the Athenians will watch to see
what you are going to do” (D. 21.215-216)
Demosthenes obviously exaggerates public indignation at Meidias’ behavior against
himself. This passage, nevertheless, suggests that public opinion was able to urge evenwould-be prosecutors to bring the case to trial27.
When a case was attracting people’s attention, the prosecutors would find it difficult tokeep a low profile and tended to be under more pressure from public opinion. In the case of

eisangeliai for major public offences, prosecutors may have been apt to feel more pressure.
An eisangelia was initiated at the assembly or the council in public and was usuallyapplied to a serious crime against the polis, which would presumably attract muchattention. The issue was treated as an official public concern. Since an eisangelia for aserious crime did not admit postponement with a hypômosia28, there would have been

little time for the people to lose interest. The Athenians, therefore, may have felt it lessnecessary to legislate against withdrawing an eisangelia partly because of this27

This passage does not necessarily mean that popular opinion really prevented any prosecutor
from dropping a public case. Actually, public indignation against Meidias’ behaviour may not havebeen so strong or so lasting as to add serious pressure on Demosthenes to bring the case to trial.
On the question whether Demosthenes brought this case to court or not, see MacDowell 1990:
23-28; Rubinstein 2000: 208-209; Harris 2008: 84-86.

28

Hyp. 4 Eux. 7 mentions that a hypômosia for postponement of eisangeliai was not admitted. Thismeans either that the litigants of an eisangelia were legally prohibited from suspending the suitwith hypômosia, which seems more likely, or that public pressure may have made it difficult topostpone the case seriously detrimental to the public interest.

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characteristic of the procedure29. Public opinion could work as a coercive power for theprosecutor or the would-be prosecutor not to neglect the public interest but to bring thecase to trial.
On the other hand, it would have been difficult for the citizens to keep their eyes on

every prosecutor, let alone every would-be prosecutor. While an eisangelia was mostly

brought before the council or the assembly in public and prosecutions against magistrates

were brought at the euthyna in front of many citizens, most public charges were brought
to magistrates with only a few witnesses. The two parties could easily make their deed
less noticeable, when they mutually agreed with each other30.
In his oration against Demosthenes, Dinarchus criticizes the defendant for cancelling aneisangelia (ταύτην τὴν εἰσαγγελίαν…ἀναιρούµενος) against Callimedon with intent tooverthrow the democracy (Din.1.94)31. Here, however, Dinarchus accuses Demosthenes ormocks his continual change of policy, rather than bitterly reproaching the politician forneglecting the public interest, in spite of the fact that the cancellation of the eisangelia
happened just before the trial against Demosthenes. It seems likely that the people paid
more attention to the Harpalus affair than the matter concerning Callimedon and did notregard the cancellation of the eisangelia as seriously detrimental to the public interest.

Aeschines also criticizes Demosthenes for his judicial activities. When Demosthenes
accuses him of being bribed by Philip, Aeschines says,
Do you today accuse me of having taken bribes, you who were once fined by
the Council of the Areopagus for not prosecuting your suit for assault (οὐκἐπεξιὼν τῇ τοῦ τραύµατος γραφῇ,), that time when you indicted (ἐγράψω)your cousin Demomeles of Paeania for the cut on your head that you gave
yourself with your own hand? (Aeschin. 2.93)
Here Aeschines suggests that Demosthenes dropped his public charge (graphê) for money.
Glancing at this episode, however, we see that Aeschines intended to mock Demosthenes’
inconsistent attitude towards bribery, not to condemn his neglect of the public interest. At

the trial of Ctesiphon in 330, Aeschines referred to the same trial again and to the graphê
hybreôs against Meidias, as well. Concerning the latter case, Aeschines claimed that
Demosthenes “sold (ἀπέδοτο) for thirty minas both the hybris to himself and the vote of29

Interestingly, the penalty was not inflicted on those who withdrew an eisangelia (or a graphê)kakôseôs, which was brought before the archôn eponymos, not either the Assembly or the boulê.
The reason is uncertain, but the polis apparently preferred lessening obstacles to bringing aneisangelia concerning maltreatment to prohibiting withdrawal.
30

At least in some cases, mutual agreement was necessary to withdraw a case. And. 1.120-121
suggests that Cephisius could not drop an endeixis against Andocides, because the defendant (notthe prosecutor!) did not agree.

31

In this case, it is not certain whether Demosthenes’ eisangelia was withdrawn after the Assembly
passed the decree about the case or cancelled somehow before it (Rubinstein 2000: 121 n.107). On
the eisangelia against Callimedon, see also Hansen 1975: 111; Worthington 1992: 264-265.

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censure (τὴν τοῦ δήµου καταχειροτονίαν) that the people had passed against Meidias”(Aeschin. 3.52). With this passage Aeschines suggests that Demosthenes neglected the
public interest. After mentioning these trials, however, Aeschines clearly claims that theseold incidents should be passed over and describes Demosthenes’ political activities
concerning Philip in much more detail in order to prove that the politician did nothing

good for the polis (3.54). Aeschines presumably intended to give the jurors a negative
impression concerning Demosthenes’ judicial and legal activities, but did not bitterly
denounce him for betraying the public interest. It is possible that these two ‘crimes’,
though indicted with a ‘public’ charge, were not regarded as critical to the public interestby any means, so that Aeschines could severely accuse Demosthenes of betraying thepeople.
Aristogeiton is said to have “sold the impeachment of Hegemon (τὴν καθ᾽ Ἡγήµονοςεἰσαγγελίαν … ἀπέδοτο)”, and to have “thrown up his brief against Demades (τὰς κατὰ∆ηµάδου γραφὰς ... ἐξέλιπεν)”. The speaker also insinuates that Aristogeiton settled out ofcourt with other defendants for payments (D. 25.46-47). While it is impossible todetermine whether Aristogeiton himself initiated these procedures32, he is clearly accusedof out-of-court settlements for payment. The speaker, however, does not criticize
Aristogeiton for neglecting the public interest, but mocks him for his uselessness as asycophant.
Epichares, the prosecutor of Theocrines, used a two-pronged rhetorical strategy. Citinga law concerning those who did not follow through with a public case, as mentioned above,
he explains that the purpose of the regulation was to prevent prosecutors fromabandoning the interests of the state ([D.] 58.6). A few sections later in this oration,
Epichares also claims that if Theocrines compromised with the illegal trader he haddenounced, he did wrong to all the citizens and would justly be fined a thousand drachmae([D.] 58.12). Here the prosecutor obviously considers that private conciliation with thecriminal was an offence against all the citizens.
At the same time, however, Epichares describes Theocrines as a sycophant and claims
that the defendant kept writing indictments contrary to the laws and harassing many
citizens with baseless and malicious actions (συκοφαντοῦντα πολλοὺς τῶν πολιτῶν), when
he had no right to do so ([D.] 58.2). It is true that the speaker is clearly using rhetoric: noone had a right to commit ‘sycophancy’. But Epichares tries to include the jurors, in otherwords, the citizens among the victims and would-be victims of Theocrines’ continual
judicial actions. In addition, Epichares explains that he was liable not merely to the fine ofa thousand drachmae, but also to arrest (apagôgê) and to the other punishments which

the law provided for anyone who committed sycophancy against merchants andship-owners ([D.] 58.10). After citing the law on sycophancy against traders, Epicharessays that if Micon sailed to a legitimate port and Theocrines nonetheless denounced him,
he was bringing a baseless charge against the ship-owners ([D.] 58.12). Here Epichares
seems to find it difficult to determine whether he should present Micon as a wrong-doer oras an innocent trader. Generally speaking, it was not easy for the third person to decide32

Rubinstein 2000: 119.

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whether the defendant of a dropped public case had really committed a crime or was a
victim of sycophancy. Describing withdrawal of a public case as abandoning the public
interest logically suggests that the defendant of the case was possibly a wrong-doer, even
if he was actually innocent. Epichares’ rhetorical strategy shows the difficulty inpresenting a withdrawal of a public charge as straightforward detrimental to the public
interest.
As we have seen, although out-of-court settlement with a suspect in a public trial was
frequently described as detrimental to the public interest, it was often either
retrospectively mocked as part of a politician’s embarrassing past or associated withindiscriminately prosecuting many, especially innocent citizens. These examples suggestthat it was difficult to complain about out-of-court settlement in a public case, unlesswould-be prosecutors were continuously active in politics or in legal activities.
To conclude: although dropping a public case in Classical Athens was penalised, the law
code had some limitations and prosecutors presumably often withdrew their cases.
Popular opinion in the public sphere could urge a volunteer prosecutor to bring a case totrial, especially when the case attracted the citizens’ attention. However such cases do notseem to have been very common. In many cases, prosecutors and would-be prosecutors
could keep a low profile. Only politicians or those who often participated in judicial
activities could be criticized or mocked when they did not prosecute suspects in the law
courts. In such a socio-legal environment, not a few litigants of public suits presumably
made private negotiations taking into consideration the possibility of an out-of-court
settlement, even after their cases were officially filed.

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