Dēmos · Classical Athenian Democracy · a Stoa Publication
→ The Procedure.
Christopher W. Blackwell, edition of March 21, 2003
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Dinarchus says that either the Areopagus or the Assembly could initiate an apophasis: “The council of the Areopagus is bound, gentlemen, to follow one of two methods in making all its reports (τὰς ἀποφάσεις). What are these methods? Its inquiry is made either on its own initiative or in obedience to the people’s instructions” (Din. 1.50). In at least one case, that of Antiphon, the Areopagus initiated an apophasis after the man had been acquitted by the people (Dem. 18.133; Din. 1.63). In the trial of Demosthenes, the People (ὁ δῆμος) passed a decree asking the Areopagus to investigate the question of bribery and to issue an apophasis (Din. 1.4; Din. 1.7; Din. 1.58); because Din. 1.4 mentions “the People passing a lawful decree” (ψηφισαμένου γὰρ τοῦ δήμου δίκαιον ψήφισμα), we can be sure that he is speaking of the Assembly.
Once an apophasis was begun, the Areopagus conducted an investigation. In a fragmentary speech by Hyperides, from the trial of Demosthenes, the orator says, “The reporting of the names of the recipients [of bribes — CWB] it [i.e. the Assembly — CWB] assigned to the Areopagus, who gave these men’s names to the people” (Hyp. 5.f9; the text of this speech is badly damaged, and some parts have had to be reconstructed through inference, comparison with other sources, and educated guessing). Dinarchus says that Demosthenes himself had moved in the Assembly that the Areopagus investigate the question of bribery: “When, moreover, you, Demosthenes, and many others had proposed in a decree that the Areopagus, according to its traditional right, should hold an inquiry to discover if any of them had received gold from Harpalus, the Areopagus began its investigation (ζητεῖ)” (Din. 1.4). Any subsequent action would then depend on the outcome of the Areopagus’ report (Din. 1.1).
After the Areopagus issued its report, the apophasis itself, it could recommend that the defendant be tried before a jury. Dinarchus describes the sequence of events: “In the case of Polyeuctus of Cydantidae, when the people instructed the Council of the Areopagus to inquire whether he was accompanying the exiles to Megara and to report back after the investigation, it reported that he was doing so. You chose accusers as the law prescribes: Polyeuctus came into court and you acquitted him, on his admitting that he was going to Megara to Nicophanes who, he said, was married to his mother” (Din. 1.58). Here, the Areopagus reported that the man had gone to Megara with some exiles, and was thus suspected of treason. Because of this report, accusers were chosen to prosecute the case before a court.
It seems that the Assembly had to vote on whether to take a case to court as a result of the Areopagus’ apophasis. In a speech prosecuting Aristogiton, in a trial resulting from an apophasis (see Din. 2.1), Dinarchus says of the defendant that “he has been found by the Council of the Areopagus to have taken bribes against your interests… and the People have, by a show of hands, handed him over to you [the jury — CWB] to be punished” (ὅτι τούτου κατέγνωκεν ἡ βουλὴ δῶρα λαμβάνειν καθ᾽ ὑμῶν… τούτου καταχειροτονήσας ὁ δῆμος παραδέδωκεν ὑμῖν τιμωρήσασθαι) (Din. 2.20). At the same time that the Assembly voted on whether to send a defendant to be tried in front of a jury, it would also elect, by show of hands, one or more prosecuters to present the case against the defendant. Hyperides mentions chosen accusers (τοῖς ᾑρημένοις κατηγόροις) (Hyp. 5.f9). At Din. 1.58, the orator tells the people of Athens that “you chose accusers as the law prescribes” (κατηγόρους εἵλεσθε κατὰ τὸν νόμον); and at Din. 1.51 he mentions “accusers, elected by the people, who are now giving the jury an account of the crimes” (καὶ κατήγοροι χειροτονήσαντος τοῦ δήμου, παρ᾽ ὧν νῦν οἱ δικασταὶ τἀδικήματα πυνθάνονται).
It is clear that the ultimate decision—to punish the defendant or not to—was in the hands of the jury. Dinarchus mentions many cases of defendants who were found guilty by the Areopagus’ apophasis, but subsequently acquitted by a jury (Din. 1.57-59). Among them was Polyeuctus, whom the Areopagus found to have made suspicious trips to Megara to visit some men who had been exiled from Athens. But, Dinarchus reminds the jury, “Polyeuctus came into court and you acquitted him, on his admitting that he was going to Megara to Nicophanes who, he said, was married to his mother. So you did not consider that he was doing anything strange or reprehensible in keeping in touch with his mother’s husband who was in difficulties, or in assisting him, so far as he could, while he was banished from the country” (Din. 1.58).
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