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Introduction.

Two Case Studies.

Antiphon 1.

→ Lysias 1.

Other Examples.

Conclusion.

Index of Citations

General Index

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Athenian Homicide Law: Case Studies 

Michael Gagarin, edition of March 27, 2003

page 4 of 6

· Lysias 1 ·

Read about the evidence
Lysias (Lys. 1).

By contrast with the case against the stepmother, the story told by the speaker in Lysias 1, a farmer named Euphiletus, has usually been judged very effective, in part because Euphiletus supplies external evidence in the form of witnesses for what is often seen as the crucial question, did he in fact catch Eratosthenes in bed with his wife.

Read about the evidence
Lysias (Lys. 1).

Euphiletus begins his story (sections 6-29) at a point of complete innocence, when he married a young woman who at first was the perfect wife, obedient to his every wish. After the birth of their son, he relaxed his guard and placed all his affairs in her hands, thinking their relationship was as secure as it could be. But unbeknownst to him, at his mother’s funeral she was seen by a certain Eratosthenes—a professional adulterer, as he is characterized later—who seduced her. Their secret affair continued for some time without Euphiletus having any suspicions, despite some clues that, as he later tells us, he should have spotted at the time but didn’t. Then, one day he was approached by a maid-servant sent by a woman who was another victim of Eratosthenes’ seductions. The woman was angry that she had been cast aside, and when she found out about Eratosthenes’ new affair, she saw to it that Euphiletus learned of it. Stunned and enraged by this news, and upset with himself for not having recognized the clues sooner, Euphiletus determined to exact the full punishment stipulated by the law, which, as he sees it, allows a man to kill an adulterer caught in bed with his wife. So he confronts their maid, who has been acting as the go-between for the affair, and with threats of beating forces her to tell him the whole story and to agree to notify him the next time Eratosthenes visits his wife. Four or five days later, when Euphiletus has retired for the night, Eratosthenes enters the house. The maid then alerts Euphiletus, who goes out and rounds up several friends. They storm into the house, catching Eratosthenes in flagrante delicto, and Euphiletus quickly dispatches the adulterer with his sword. Justice is done.

Read about the evidence
Demosthenes (Dem. 23).

Now, we must remember that Euphiletus is actually the defendant in this case, but he has quite successfully turned his defense speech into a speech of prosecution, so that his story is not one of justified homicide but of a crime duly punished. And at the end of his story, he has the clerk read the jury the law on which he bases this claim. Our manuscripts do not preserve the text of this law, but the same law is preserved in another speech, Demosthenes 23 (section 53). It reads, “if a man kill another unintentionally in an athletic contest, or overcoming him in a fight on the highway, or unwittingly in battle, or in intercourse with his wife [literally, ‘on top of his wife’— MG], or mother, or sister, or daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account.” This is clearly an old law, for its language is archaic, and it quite likely formed part of Draco’s original homicide law. There is some doubt, however, whether in practice the law was ever meant to imply that one should intentionally seek to catch an adulterer in the act so that one can kill him with impunity, and it seems likely that by the end of the fifth century such an act would have been frowned upon, even if it were permitted according to the letter of the law. Be that as it may, Euphiletus cites the law as if it were a statement of the punishment lawfully required for Eratosthenes’ crime of adultery. And he calls his friends as witnesses to testify first that he did in fact catch Eratosthenes in the act, and second that he did not notify them ahead of time, which would have been evidence that he set up the whole episode to entrap Eratosthenes.

Read about the evidence
Antiphon (Antiph. 1).

Of course, Eratosthenes’ relatives saw the whole case quite differently. They prosecuted Euphiletus for homicide and apparently argued both that Eratosthenes had not, in fact, been caught in bed with Euphiletus’ wife, and that the whole episode was a set up and amounted to entrapment. We do not know how effective a story they could tell to support these claims, but they would not have been able to present much evidence, since Euphiletus’ friends would have only confirmed his story and he would certainly not let them talk to his wife or question the maid who acted as a go-between. (They may have asked that the maid be interrogated under torture but Euphiletus would have refused, leaving them to argue, like the speaker in Antiphon 1, that his refusal was evidence of his guilt.) So the relatives would have been left mainly with arguments about the general likelihood of events, and most scholars conclude that Euphiletus almost certainly won the case.

Read about the evidence
Antiphon (Antiph. 1).
Lysias (Lys. 1).

However, despite the effectiveness of his arguments and in particular of the story he tells, or perhaps because of it, some scholars have suspected (as they have in the case of Antiphon 1) that this speech is also a fictitious literary exercise rather than a genuine speech written for an actual case. The story of crime and punishment is, of course, a well known one, and adultery is a common feature of Greek myths and literature, especially in the comedies that were regularly staged in Athens. One scholar [John R Porter, “Adultery by the Book: Lysias 1 (On the Murder of Eratosthenes) and Comic Diegesis,” (Echos du Monde Classique) 40 (1997) 421-53] has recently analyzed “the subtle fashion in which [Euphiletus’] speech exploits the motifs of the stereotypical adultery tale in achieving both its charm as a narrative and its effectiveness as a rhetorical appeal,” and he concludes that the story “has been molded by an author well versed in the conventions of comic adultery narratives,” and that these “performative features of the text” are an indication that Lysias 1 may be an elaborate fiction written as a literary exercise not for actual delivery in court.

Read about the evidence
Antiphon (Antiph. 1).
Lysias (Lys. 1).

Now, it is true, of course, that Euphiletus’ story, like that told in Antiphon 1, draws on stereotypical characters and story elements. But those who study storytelling have shown that all stories, whatever their degree of truth, achieve their effectiveness in part by their use of well known (i.e. stereotypical) characters and story patterns. Crime and punishment is more often a story told by the prosecution, as in Antiphon 1, where the storyteller stops at a point just before the end, when only the jury’s verdict of guilty is needed to bring the story to its proper conclusion. But Lysias 1 shows that the same plot line can be used by the defense. In both cases, as in most cases in any legal system, the other side would have told a different story. They might have drawn on different stereotypical characters types or used the same types in different ways. But if they were to present an effective case, they must have constructed a plausible story and this would almost certainly have required that they use elements with which their audience was very familiar. The fact that we can find mythical or literary elements in these stories does not mean either that they are literary exercises, or that as court speeches they are fictitious tales. It simply means that their authors (like any good litigating attorney today) knew something of the art of storytelling and have done their job well.

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