Genos Dikanikon: Amateur and Professional Speech in the Courtrooms of Classical Athens

  Bers, Victor. 2009. Genos Dikanikon: Amateur and Professional Speech in the Courtrooms of Classical Athens. Hellenic Studies Series 33. Washington, DC: Center for Hellenic Studies.

Chapter 6: Appeals to Pity and Displays of Anger

Appealing to Pity

Several very well-known descriptions of court speakers and actual passages of court speech have lead many scholars to conclude that litigants wallowed in emotion as they made appeals to the jury’s pity (in older terminology, appeals ad misericordiam). This might have been true of many amateurs, but very seldom, as I see it, of the professionals.

A locus classicus is Socrates’ declaration, as represented by Plato at Apology 34d3–35b8, that he will not demean himself or his city by carrying on in the contemptible manner he has often witnessed: [1]

εἶεν δή, ὦ ἄνδρες· ἃ μὲν ἐγὼ ἔχοιμ᾽ ἂν ἀπολογεῖσθαι, σχεδόν ἐστι ταῦτα καὶ ἄλλα ἴσως τοιαῦτα. τάχα δ᾽ ἄν τις ὑμῶν ἀγανακτήσειεν ἀναμνησθεὶς ἑαυτοῦ, εἰ ὁ μὲν καὶ ἐλάττω τουτουῒ τοῦ ἀγῶνος ἀγῶνα ἀγωνιζόμενος ἐδεήθη τε καὶ ἱκέτευσε τοὺς δικαστὰς μετὰ πολλῶν δακρύων, παιδία τε αὑτοῦ ἀναβιβασάμενος ἵνα ὅτι μάλιστα ἐλεηθείη, καὶ ἄλλους τῶν οἰκείων καὶ φίλων πολλούς, ἐγὼ δὲ οὐδὲν ἄρα τούτων ποιήσω, καὶ ταῦτα κινδυνεύων, ὡς ἂν δόξαιμι, τὸν ἔσχατον κίνδυνον. τάχ᾽ ἂν οὖν τις ταῦτα ἐννοήσας αὐθαδέστερον ἂν πρός με σχοίη καὶ ὀργισθεὶς αὐτοῖς τούτοις θεῖτο ἂν μετ᾽ ὀργῆς τὴν ψῆφον. εἰ δή τις ὑμῶν οὕτως ἔχει – οὐκ ἀξιῶ μὲν γὰρ ἔγωγε, εἰ δ᾽ οὖν – ἐπιεικῆ ἄν μοι δοκῶ πρὸς τοῦτον λέγειν λέγων ὅτι “ἐμοί, ὦ ἄριστε, εἰσὶν μέν πού τινες καὶ οἰκεῖοι· καὶ γὰρ τοῦτο αὐτὸ τὸ τοῦ Ὁμήρου, οὐδ᾽ ἐγὼ ‘ἀπὸ δρυὸς οὐδ᾽ ἀπὸ πέτρης’ πέφυκα ἀλλ᾽ ἐξ ἀνθρώπων, ὥστε καὶ οἰκεῖοί μοί εἰσι καὶ ὑεῖς γε, ὦ ἄνδρες Ἀθηναῖοι, τρεῖς, εἷς μὲν μειράκιον ἤδη, δύο δὲ παιδία· ἀλλ᾽ ὅμως οὐδένα αὐτῶν δεῦρο ἀναβιβασάμενος δεήσομαι ὑμῶν ἀποψηφίσασθαι.” τί δὴ οὖν οὐδὲν τούτων ποιήσω; οὐκ αὐθαδιζόμενος, ὦ ἄνδρες Ἀθηναῖοι, οὐδ᾽ ὑμᾶς ἀτιμάζων, ἀλλ᾽ εἰ μὲν θαρραλέως ἐγὼ ἔχω πρὸς θάνατον ἢ μή, ἄλλος λόγος, πρὸς δ᾽ οὖν δόξαν καὶ ἐμοὶ καὶ ὑμῖν καὶ ὅλῃ τῇ πόλει οὔ μοι δοκεῖ καλὸν εἶναι ἐμε τούτων οὐδὲν ποιεῖν καὶ τηλικόνδε ὄντα καὶ τοῦτο τοὔνομα ἔχοντα, εἴτ᾽ οὖν ἀληθὲς εἴτ᾽ οὖν ψεῦδος, ἀλλ᾽ οὖν δεδογμένον γέ ἐστί τῳ Σωκράτη διαφέρειν τῶν πολλῶν ἀνθρώπων. εἰ οὖν ὑμῶν οἱ δοκοῦντες διαφέρειν εἴτε σοφίᾳ εἴτε ἀνδρείᾳ εἴτε ἄλλῃ ᾑτινιοῦν ἀρετῇ τοιοῦτοι ἔσονται, αἰσχρὸν ἂν εἴη· οἵουσπερ ἐγὼ πολλάκις ἑώρακά τινας ὅταν κρίνωνται, δοκοῦντας μέν τι εἶναι, θαυμάσια δὲ ἐργαζομένους, ὡς δεινόν τι οἰομένους πείσεσθαι εἰ ἀποθανοῦνται, ὥσπερ ἀθανάτων ἐσομένων ἂν ὑμεῖς αὐτοὺς μὴ ἀποκτείνητε· οἳ ἐμοὶ δοκοῦσιν αἰσχύνην τῇ πόλει περιάπτειν, ὥστ᾽ ἄν τινα καὶ τῶν ξένων ὑπολαβεῖν ὅτι οἱ διαφέροντες Ἀθηναίων εἰς ἀρετήν, οὓς αὐτοὶ ἑαυτῶν ἔν τε ταῖς ἀρχαῖς καὶ ταῖς ἄλλαις τιμαῖς προκρίνουσιν, οὗτοι γυναικῶν οὐδὲν διαφέρουσιν. ταῦτα γάρ, ὦ ἄνδρες Ἀθηναῖοι, οὔτε ὑμᾶς χρὴ ποιεῖν τοὺς δοκοῦντας καὶ ὁπῃοῦν τι εἶναι, οὔτ᾽, ἂν ἡμεῖς ποιῶμεν, ὑμᾶς ἐπιτρέπειν, ἀλλὰ τοῦτο αὐτὸ ἐνδείκνυσθαι, ὅτι πολὺ μᾶλλον καταψηφιεῖσθε τοῦ τὰ ἐλεινὰ ταῦτα δράματα εἰσάγοντος καὶ καταγέλαστον τὴν πόλιν ποιοῦντος ἢ τοῦ ἡσυχίαν ἄγοντος.

Well, that, and things just about like it, is what I have to say in my defense. Some one of you might be irked, remembering his own actions, if on trial for something less momentous, he asked and beseeched the jurors, weeping copiously, and marching his children up here to win as much pity as he could, and also many other relatives and friends, but I do none of that; and, on top of that, though I am – so it might seem – facing the most extreme danger. Some of you might, on thinking about it, adopt the harshest attitude to me, and growing angry for this reason, cast your votes in anger. If any of you is feeling that way – I don’t think it would be right, but just in case – I think it would be proper for me to answer him like this: “Sir, I do have, I think, some family; you see, it’s like that bit in Homer, ‘I don’t come from oak or rock, but from human beings,’ so I do have family, sons actually, men of Athens, three of them, one already a young man, and two children. Still, I am not going to get any of them to come up here, and I will not beg you to acquit me.” Why won’t I do any of these things? Not out of arrogance, gentlemen of Athens, and not to show you lack of respect. If I do or don’t feel confident about death – well, that’s another story. But as for reputation, my own, yours, the whole city’s, it does not seem noble for me to do any of that, especially at my age and having the name I do: whether it is true or false, it is a matter of fixed belief that Socrates is, in some way, beyond most men. So if those of you who suppose that they have some reputation for wisdom or manliness or some other point of excellence carried on in this manner, it would be shameful. I have often see men in this category, men who seemed to be of some value, behaving in an amazing fashion, in the belief that they were going to suffer something terrible if they died, as if they would live forever if only you did not execute them. These men seem to hang a badge of shame around the city’s neck, with the consequence that a foreigner would suppose that Athenians preeminent for their virtue, men whom the Athenians prefer to themselves in assigning official positions and other honors – that these men were no better than women. Gentlemen of Athens, neither should you who pride yourselves on being of some value do this, nor should we allow you to; rather, you should make this clear: you are more likely to convict the man who brings in these piteous dramas and makes the city a laughingstock than the man who keeps his peace.

The sarcastic phrases θαυμάσια δὲ ἐργαζομένους (“behaving in an amazing fashion”), οὗτοι γυναικῶν οὐδὲν διαφέρουσιν (“these men are no better than women”), and τὰ ἐλεινὰ ταῦτα δράματα (“these piteous dramas”) are remarkable for the utter lack of compassion and forbearance they manifest. But as reportage, Plato might provide an accurate description of the appeal to pity as it was performed by a speaker facing the possibility of execution, or even lesser punishments, if he failed to win his case. [

We meet the best known among comic descriptions of these appeals in Aristophanes’ Wasps, in Philocleon’s ecstatic description of the joys of jury service. [3] Supplications begin outside the court:

καὶ μὴν εὐθύς γ᾽ ἀπὸ βαλβίδων περὶ τῆς ἀρχῆς ἀποδείξω
τῆς ἡμετέρας ὡς οὐδεμιᾶς ἥττων ἐστὶν βασιλείας.
τί γὰρ εὔδαιμον καὶ μακαριστὸν μᾶλλον νῦν ἐστι δικαστοῦ,
ἢ τρυφερώτερον ἢ δεινότερον ζῷον, καὶ ταῦτα γέροντος;
ὃν πρῶτα μὲν ἕρποντ᾽ ἐξ εὐνῆς τηροῦσ᾽ ἐπὶ τοῖσι δρυφάκτοις
ἄνδρες μεγάλοι καὶ τετραπήχεις· κἄπειτ᾽ εὐθὺς προσιόντι
ἐμβάλλει μοι τὴν χεῖρ᾽ ἁπαλὴν τῶν δημοσίων κεκλοφυῖαν.
ἱκετεύουσίν θ᾽ ὑποκύπτοντες τὴν φωνὴν οἰκτροχοοῦντες·
“οἴκτιρόν μ᾽, ὦ πάτερ, αἰτοῦμαί σ᾽, εἰ καὐτὸς πώποθ᾽ ὑφείλου
ἀρχὴν ἄρξας ἢ ᾽πὶ στρατιᾶς τοῖς ξυσσίτοις ἀγοράζων.”
ὃς ἔμ᾽ οὐδ᾽ ἂν ζῶντ᾽ ᾔδειν, εἰ μὴ διὰ τὴν προτέραν ἀπόφυξιν.

I will show you, beginning at the startling-line, how our power is second to no monarchical rule. These days, what living thing is happier and more blessed than a juryman or more pampered or more awe-inspiring? – and I’m talking about an old man! First off, when I creep out of bed they’re looking for me at the courtroom railing – big, six-foot men. And then, right away, as soon as I come near, he [the defendant] puts out his hand, his hand soft from filching from the public till instead of working. They kowtow and beg me, and pour out a miserable lament: “Pity me, sir, I beg you, if you ever kept something back for yourself when serving in an office or on campaign when you shopped for your messmates.” This is somebody who wouldn’t have even known I was alive, if it weren’t for an acquittal once before.

Wasps 548–558

And piteous entreaties, says Philocleon, continue within the trial itself as litigants bemoan their poverty and, should stories and jokes fail to please, culminate in the parading of children before the jury:

… τὰ παιδάρι᾽ εὐθὺς ἀνέλκει
τὰς θηλείας καὶ τοὺς υἱεῖς τῆς χειρός, ἐγὼ δ᾽ ἀκροῶμαι,
τὰ δὲ συγκύψανθ᾽ ἅμα βληχᾶται, κἄπειθ᾽ ὁ πατὴρ ὑπὲρ αὐτῶν
ὥσπερ θεὸν ἀντιβολεῖ με τρέμων τῆς εὐθύνης ἀπολῦσαι·
“εἰ μὲν χαίρεις ἀρνὸς φωνῇ, παιδὸς φωνὴν ἐλεήσαις·”
εἰ δ᾽ αὖ τοῖς χοιριδίοις χαίρω, θυγατρὸς φωνῇ με πιθέσθαι.
χἠμεῖς αὐτῷ τότε τῆς ὀργῆς ὀλίγον τὸν κόλλοπ᾽ ἀνεῖμεν.

Right away he leads his children up to the podium, girls and boys, taking them by the hand; and I listen, and they all bow and scrape ensemble; and then, on their behalf, their father, trembling, begs me, as if I were a god, to let him off at his euthuna [audit on leaving office]: “If you rejoice on hearing the voice of a lamb, take pity as you hear a boy’s voice”; or if it’s piglets that give me my jollies, he begs me to hearken to his daughter’s voice. And then we crank down our anger for him.

Wasps 568–573

For a variety of reasons I believe we are again dealing with a sort of optical illusion. We must discriminate between accounts or predictions of these pleas as they are presented by a litigant’s opponents or, as in the case of Plato and Aristophanes, writers with anti-democratic or comedic purposes. We cannot assume affective delivery within the courtroom on the basis of verbal similarities to appeals enacted outside of courts. We must recognize the function of these pleas in the overall framework of a lawcourt pleading. Above all, we must be alert to differences between professional and amateur speaking styles.

I have found very little useful for this investigation in the scraps that describe early rhetorical theory. An important exception is the evidence available for Thrasymachus of Chalcedon, a prominent figure among fifth-century theorists of rhetoric, who is reported to have devoted a work to eleoi, “Appeals for Pity.” From brief mentions in Plato and Aristotle we know something – but not much – of its content. In his potted history of the technê logôn in the Phaedrus Socrates speaks of Thrasymachus as a master of piteous groans and techniques in the incitement, and subsequent calming, of the listeners’ indignation:

τῶν γε μὴν οἰκτρογόων ἐπὶ γῆρας καὶ πενίαν ἑλκομένων λόγων κεκρατηκέναι τέχνῃ μοι φαίνεται τὸ τοῦ Χαλκηδονίου σθένος, ὀργίσαι τε αὖ πολλοὺς ἅμα δεινὸς ἁνὴρ γέγονεν, καὶ πάλιν ὠργισμένοις ἐπᾴδων κηλεῖν, ὡς ἔφη·

The mighty Chalcedonian seems to me to be supreme in the realm of artfully extracting piteous, groaning arguments applicable to old age and poverty, and to have been cunning as well at rousing masses of men to anger and, once they were enraged, to beguiling them with charms, as he said.

Phaedrus 267c7–d4

The arch reference to Thrasymachus by means of a Homeric-sounding periphrasis, literally “the strength of Chalcedon,” is probably a backhanded compliment to the power of the eleos performed according to his instruction. [
4] Aristotle’s disdain for the performative elements of oratory [5] presumably explains the brevity of his remarks on Thrasymachus:

διαφέρει γάρ τι πρὸς τὸ δηλῶσαι ὡδὶ ἢ ὡδὶ εἰπεῖν, οὐ μέντοι τοσοῦτον, ἀλλ᾽ ἅπαντα φαντασία ταῦτ᾽ ἐστί, καὶ πρὸς τὸν ἀκροατήν· διὸ οὐδεὶς οὕτω γεωμετρεῖν διδάσκει. ἐκείνη μὲν οὖν ὅταν ἔλθῃ ταὐτὸ ποιήσει τῇ ὑποκριτικῇ, ἐγκεχειρήκασιν δὲ ἐπ᾽ ὀλίγον περὶ αὐτῆς εἰπεῖν τινές, οἷον Θρασύμαχος ἐν τοῖς Ἐλέοις·

To speak in one way rather than another does make some difference in regard to clarity, though not a great difference; but all these things are forms of outward show and intended to affect the audience. As a result, nobody teaches geometry this way. Whenever delivery comes to be considered it will function in the same way as acting, and some have tried to say a little about it, for example, Thrasymachus in his [account of] emotional appeals.

Rhetoric 1404a10–18 (translation by Kennedy 1991)

Aristotle was quick to turn up his nose at what went on in Athenian courts, but I conjecture that Thrasymachus’ attention to this aspect of speechmaking shows that it was widely regarded as very important, and also as treacherous, and therefore not to be left to a speaker’s instincts. If that is so, we have direct evidence for concentrated attention to the critical role of affect in speaker and audience.

Consider, for instance, the three instances of ad misericordiam appeals adduced by Burnet ad Apology 34c3. First, Lysias 20.34:

καίτοι ὁρῶ μέν γ᾽ ὑμᾶς, ὦ ἄνδρες δικασταί, ἐάν τις παῖδας αὑτοῦ ἀναβιβασάμενος κλάῃ καὶ ὀλοφύρηται, τούς τε παίδας δι᾽ αὐτὸν εἰ ἀτιμωθήσονται ἐλεοῦντας, καὶ ἀφιέντας τὰς τῶν πατέρων ἁμαρτίας διὰ τοὺς παῖδας, οὓς οὔπω ἴστε εἴτε ἀγαθοὶ εἴτε κακοὶ ἡβήσαντες γενήσονται· ἡμᾶς δ᾽ ἴστε ὅτι πρόθυμοι γεγενήμεθα εἰς ὑμᾶς, καὶ τὸν πατέρα οὐδὲν ἡμαρτηκότα. ὥστε πολλῷ δικαιότεροί ἐστε, ὧν πεπείρασθε, τούτοις χαρίσασθαι, ἢ οὓς οὐκ ἴστε ὁποῖοί τινες ἔσονται. πεπόνθαμεν δὲ τοὐναντίον τοῖς ἄλλοις ἀνθρώποις. οἱ μὲν γὰρ ἄλλοι τοὺς παῖδας παραστησάμενοι ἐξαιτοῦνται ὑμᾶς, ἡμεῖς δὲ τὸν πατέρα τουτονὶ καὶ ἡμᾶς ἐξαιτούμεθα, μὴ ἡμᾶς ἀντὶ μὲν ἐπιτίμων ἀτίμους ποιήσητε, ἀντὶ δὲ πολιτῶν ἀπόλιδας· ἀλλὰ ἐλεήσατε καὶ τὸν πατέρα γέροντα ὄντα καὶ ἡμᾶς.

Nevertheless, gentlemen of the jury, we see that if somebody brings forward his children and weeps and laments, you take pity on the children if they are to lose their citizen rights on his account, and you pardon the father’s crimes on account of the children, without knowing whether they are going to turn out well or badly when they grow up. In our case, you know that we have been loyal to you and that our father has done nothing wrong. So it will be far more just for you to reward those whom you have tested, rather than people whose future development is unknown to you. Our predicament is the opposite of other people’s: they bring forward their children and plead with you; we bring forward our father and ourselves, and beg you not to deprive us of citizen rights and of citizenship. Take pity on our father, who is an old man, and on us.

As part of an argument a fortiori (or perhaps question-begging), the speaker denies his father’s guilt. This passage is remarkable for describing the jurors’ pity as normally extended to the children put on display in spite of the father’s guilt, and granted in anticipation of the children proving better than their father. [
7] The appeal is made by an implicit praeteritio, as if the defendant’s son is saying, “My father will not march his children before the court”; thus the verbs κλάῃ and ὀλοφύρηται refer to others, not to the defense speakers themselves. [8]

Demosthenes predicts an appeal to pity at 19.310:

ἀλλ᾽ ὑπὲρ αὑτοῦ κλαήσει τοῦ τὰ τοιαῦτα πεπρεσβευκότος, καὶ τὰ παιδί᾽ ἴσως παράξει κἀναβιβᾶται

He will shed tears for himself, and he will probably produce his children and bring them up.

In his speech Against Meidias, Demosthenes not only omits the hedging ἴσως, but claims that the appeal to pity is the defendant’s only recourse:

τί οὖν ὑπόλοιπον; ἐλεῆσαι νὴ Δία· παιδία γὰρ παραστήσεται καὶ κλαήσει καὶ τούτοις αὑτὸν ἐξαιτήσεται· τοῦτο γὰρλοιπόν.

What other defense is left? Pity, you may say: he’ll bring forward children and weep and ask you to let him off for their sake – that’s what’s left.

Demosthenes 21.99 (my translation)

Similarly, at §186 Demosthenes simply knows that Meidias will parade his children and lament:

οἶδα τοίνυν ὅτι τὰ παιδί᾽ ἔχων ὀδυρεῖται, καὶ πολλοὺς λόγους καὶ ταπεινοὺς ἐρεῖ, δακρύων καὶ ὡς ἐλεινότατον ποιῶν ἑαυτόν.

Now, I know that he’ll have his children here too, and he’ll lament and make a long humble speech, weeping and making himself as pitiable as possible. (My translation)

Demosthenes himself could be said to have staged a pitiable parade through words alone by describing the effect a loss in court would have on his mother and sister if he does not defeat Aphobus (Demosthenes 28.19–22). It should be noted, however, that this entire speech is exceptionally vehement.

Our expressions “appeal to pity,” “appeal for mercy,” or even the traditional “appeal ad misericordiam,” color our view. ἔλεος and related words are associated with acknowledgement of wrongdoing (this is implied by the words Kyrie , eleêson in the Mass), an abject posture, a presentation of oneself to the world as weak and utterly helpless. When we read ‘beseech’ as a translation of δεόμεθα, the English word steers us into overestimating the speaker’s wretchedness. Consider some examples from E. S. Forster’s Loeb translation of Isaeus (1927). At 2.47 the speaker ends his speech with this appeal to the jury:

ἀλλ᾽ ἐπειδὴ τὸ πρᾶγμα εἰς ὑμᾶς ἀφῖκται καὶ ὑμεῖς κύριοι γεγόνατε, βοηθήσατε καὶ ἡμῖν καὶ ἐκείνῳ τῷ ἐν Ἅιδου ὄντι, καὶ μὴ περιίδητε – πρὸς θεῶν καὶ δαιμόνων δέομαι ὑμῶν – προπηλακισθέντα αὐτὸν ὑπὸ τούτων, ἀλλὰ μεμνημένοι τοῦ νόμου καὶ τοῦ ὅρκου ὃν ὀμωμόκατε καὶ τῶν εἰρημένων ὑπὲρ τοῦ πράγματος, τὰ δίκαια καὶ τὰ εὔορκα κατὰ τοὺς νόμους ψηφίσασθε.

… but since the matter has come before you for judgment and you have the sovereign right of decision, come to the aid both of us and of him who is in the other world, and do not allow Menecles, by the gods and deities I beseech you, to be insulted by my opponents, but mindful of the law and of the oath which you have sworn and of the arguments which have been used in support of my plea, pass in accordance with the laws the verdict which is just and in conformity with your oath.

Forster’s English for the underlined phrase, “by the gods and deities I beseech you,” seems justified by the invocation of the supernatural world. And when linguistic associations of our own language are, evidently, augmented by the mention of supplication, which for our culture is an extreme form of self-debasement, we can easily fall into the assumption that the speaker is groveling, metaphorically or even literally. Just moments before the passage already cited the speaker had used a string of words that would seem to prove his desperation (2.44, again in Forster’s translation):

ἐγὼ οὖν δέομαι ὑμῶν πάντων, ὦ ἄνδρες, καὶ ἀντιβολῶ καὶ ἱκετεύω ἐλεῆσαί με καὶ ἀποψηφίσασθαι τοῦ μάρτυρος τουτουί.

I beg you all therefore, gentleman, and beseech and entreat you to pity me and to acquit the witness here.

On the other hand, δεῖσθαι need not by itself carry much pathos. At 5.20 the speaker asks (δέὁμεθα; Forster: “we beseech”) jurors who were present at a certain occasion for their assistance in informing the other members of the panel. In contemporary English, “ask” or “request” would better render the speaker’s tone (these are the verbs chosen by MacDowell for his 2004 translation of Demosthenes 27–38). It is true that the very rich families involved in the dispute have lost much of their wealth, and commentators (e.g. Wyse 1904:44) regard the speaker’s argument as weak. But the man is, as Wyse says, “not a novice in litigation,” and the tone of the epilogos is hardly diffident.

The affective quality of the phrase ἀντιβολῶ καὶ ἱκετεύω, which often appears together with δέομαι in requests to the jury, [10] is not quite as easy to assess. Their original reference is to ritual acts meant to appease supernatural beings, yet the emotional level of this form of entreaty need not indicate an agitated or distressed speaker. Consider these five examples from Isaeus (translations now from Michael Edwards’ 2007 translation in the Texas series):

(1) 2.2: δέομαι δ᾽ ὑμῶν ἁπάντων καὶ ἀντιβολῶ καὶ ἱκετεύω μετ᾽ εὐνοίας ἀποδέχεσθαί μου τοὺς λόγους. 

I beg and entreat and supplicate you all to receive my speech with goodwill.

(2) 2.44.1–3: ἐγὼ οὖν δέομαι ὑμῶν πάντων, ὦ ἄνδρες, καὶ ἀντιβολῶ καὶ ἱκετεύω ἐλεῆσαί με καὶ ἀποψηφίσασθαι τοῦ μάρτυρος τουτουί.

I therefore beg and entreat and supplicate you all, gentlemen, to pity me and acquit the witness here.

(3) 6.57.3–8: τοῦτο γὰρ ὑμῶν δέομαι καὶ ἱκετεύω σφόδρα μεμνῆσθαι, ὦ ἄνδρες, ὅπερ ὀλίγῳ πρότερον ἀπέδειξα ὑμῖν, ὅτι Ἀνδροκλῆς οὑτοσὶ φησὶ μὲν εἶναι ἐπίτροπος αὐτῶν ὡς ὄντων γνησίων Εὐκτήμονος, εἴληχε δ᾽ αὐτὸς ἑαυτῷ τοῦ Εὐκτήμονος κλήρου καὶ τῆς θυγατρὸς αὐτοῦ ὡς οὔσης ἐπικλήρου·

I beg and earnestly supplicate you to remember, gentlemen, what I described to you just now, that Androcles here says he’s the guardian of our opponents whom he alleges are the legitimate sons of Euctemon, but he himself claimed for himself Euctemon’s estate and his daughter as heiress.

(4) 8.45.1–4: ὑμῶν δ᾽ ἐγὼ δέομαι καὶ ἱκετεύω, μή με περιίδητε περὶ τούτων ὑβρισθέντα τῶν χρημάτων ὧν ὁ πάππος κατέλιπε, μηδ᾽ ἀποστερηθέντα, ἀλλὰ βοηθήσατε καθ᾽ ὅσον ὑμῶν ἕκαστος τυγχάνει δυνάμενος.

But I beg and supplicate you, do not allow me to be insulted and deprived of this estate that my grandfather left, but help me as far as each of you is able.

(5) fr. 4.1 Thalheim: δέομαι οὖν ὑμῶν συγγνώμην ἔχειν, εἰ καὶ νεώτερος ὢν λέγειν ἐπὶ δικαστηρίου τετόλμηκα· διὰ γὰρ τοὺς ἀδικοῦντας ἀναγκάζομαι παρὰ τὸν ἐμαυτοῦ τρόπον τοιοῦτόν τι ποιεῖν. πειράσομαι δ᾽ ὑμῖν ἐξ ἀρχῆς ὡς ἂν δύνωμαι διὰ βραχυτάτων εἰπεῖν περὶ τοῦ πράγματος.

I beg you, therefore, to excuse me if, young as I still am, I have ventured to speak before a court.

The repeated collocation of the three verbs suggests a formula, almost a cliché – not that the use of a cliché must exclude emotion (Johnstone 1999:172n41). [
11] Still, the near identity of the first two examples is, at the least, an indication that the speakers were following a template, and that the same words would be appropriate both to a preliminary captatio benevolentiae (in the first example) and to approach the speech’s conclusion (in the second), a point where we would expect a warmer rhetorical temperature. In the third, the request involves a recollection of a specific fact. Against these examples we can hold another passage from Isaeus (8.22) that is undoubtedly meant to describe – not enact – powerful emotion at work:

δεομένης δὲ τῆς τοῦ πάππου γυναικὸς ἐκ τῆς οἰκίας αὐτὸν ἐκείνης θάπτειν καὶ λεγούσης ὅτι βούλοιτ᾽ ἂν αὐτὴ τὸ σῶμα τὸ ἐκείνου συμμεταχειρίζεσθαι μεθ᾽ ἡμῶν καὶ κοσμῆσαι, καὶ ταῦτα ἱκετευούσης καὶ κλαιούσης, ἐπείσθην, ὦ ἄνδρες, καὶ τούτῳ προσελθὼν μαρτύρων ἐναντίον εἶπον ὅτι ἐντεῦθεν ποιήσομαι τὴν ταφήν, δεδεημένη γὰρ εἴη ταῦτα ποιεῖν ἡ τούτου ἀδελφή.̣

But when my grandfather’s widow asked me to bury him from that house, and with supplications and tears said that she herself would like to help us lay out and adorn his body, I consented, gentlemen. I went to our opponent and told him in front of witnesses that I would conduct the funeral from there because Diocles’ sister had begged me to do so.

Here we have not a first-person address but a narrative; the subject is a mature, possibly old woman; the occasion is her husband’s funeral; moreover, she is reported to have wept. The occasion and the agent are compatible with an emotional outburst. This seems to me utterly distinct from the nearly formulaic requests with which it shares some vocabulary. When an expert speaker like the ex-actor Aeschines presented his aged father and, perhaps, mother at 2.147–148, [
12] he had the means to excite pity by vocal inflections and posture, whether drawn from life or from stage conventions. By virtue of his age alone, the spectacle of his ninety-four-year-old father was no doubt capable of exciting pity. But the entire passage, which runs from 146–152, is filled with objective claims about his family’s rectitude and public services, a list that seems ill suited to histrionic delivery. [13]

Though I agree that the cognitive element of appeals to pity is significant (see below on Konstan’s interpretation), it is going too far to exclude emotion as exerting a force that we can, with some probability, ascertain. I grant that the interplay between cognition and emotion is complex, and that group dynamics can on occasion supersede the individual, perhaps by the manipulation of thorubos (Bers 1985; Lanni 1997). Johnstone’s argument that we cannot speak of the emotions of a collective body such as a jury or a theater audience strikes me (if I understand it right) as a great exaggeration, at odds not only with our intuition that in a properly run trial the jurors react as individuals and maintain a high, if not total, degree of independent judgment. Consequently, there is value in assessing the affect expressed in pleas for pity. The physical gestures of paradigmatic supplication, a certain physical pose and physical contact, are virtually absent or replaced by the manipulation of a physical object not directly connected to the speech. [15] This does not seem to me a convincing argument, but not because of the treatment of those physical features. Rather, the tone suggested by the relevant passages in professional speech seems to me untheatrical; hence I cannot accept the affinity to stage drama that Johnstone proposes (Johnstone 1999:116 with n44). The skilled court speaker might well be working to arouse strong affect in the jury, but he himself does not seem to me to be adopting a style that implicitly or explicitly suggests that he is in the grip of emotion.

Aristotle’s remarks on rhetorical delivery in the Rhetoric, e.g. at 1386a30–b7, which, like much of that work, make frequent jumps to theatrical practice, are more frustrating than helpful. It would be enormously helpful to know just how broad or restrained, how stylized or natural, were the “gestures and cries, and displays of feelings, and generally [the] acting” (translation by Kennedy 1991) to which he alludes. Aristotle seems tripped up by his disdain for the inescapable role played by hypokrisis in forensic and political speech, and I see nothing in the Rhetoric that leads to any useful comparison between a court speaker and an actor making something “vivid.” The more flamboyant style of speaking prominent in Aristotle’s own time, especially in Demosthenes and Aeschines, further muddies the waters. The best treatment I have seen is Sifakis 2002, but I confess to a persistent feeling of frustration.

At the close of his defense against Demosthenes’ charges that he had become Philip’s tool, Aeschines presents to the jury a large entourage of relatives. The passage holds within itself an indication of how it was delivered:

κἀμοὶ μὲν οἱ συνδεησόμενοι πάρεισιν ὑμῶν πατὴρ μέν, οὗ τὰς τοῦ γήρως ἐλπίδας μὴ ἀφέλησθε, ἀδελφοὶ δέ, οἳ διαζυγέντες ἐμοῦ ζῆν οὐκ ἂν προέλοιντο, κηδεσταὶ δὲ καὶ ταυτὶ τὰ μικρὰ μὲν παιδία καὶ τοὺς κινδύνους οὔπω συνιέντα, ἐλεεινὰ δ᾽ εἴ τι συμβήσεται παθεῖν ἡμῖν. ὑπὲρ ὧν ἐγὼ δέομαι καὶ ἱκετεύω πολλὴν πρόνοιαν ποιήσασθαι, καὶ μὴ τοῖς ἐχθροῖς αὐτοὺς μηδ᾽ ἀνάνδρῳ καὶ γυναικείῳ τὴν ὀργὴν ἀνθρώπῳ παραδοῦναι.

There are people here to join me in imploring you: my father – do not deprive him of his hopes for his old age; my brothers, who would not want to live if I were taken from them; my in-laws; and these little children who do not yet recognize the danger but who will be pitiful if anything befalls me. I beg and implore you to give careful thought to them and not hand them over to their enemies or to this person of unmanly and effeminate temperament.

Aeschines 2.179 (translation by Carey 2000, but with the final phrase more literally rendered)

In the last sentence Aeschines condemns Demosthenes as “unmanly and effeminate in his temperament [orgê],” which is implicitly contrasted with his own and his family’s masculinity. Aeschines is, to be sure, asking the jurors, and even the gods, to save him from execution (see §180; cf. Demosthenes 19.31), but the contrast he implies between Demosthenes and himself indicates (if it does not prove) that he was guarding against any sign that he was exhibiting the very weakness he hoped to pin on his enemy.

For economy of presentation, I proceed to brief remarks on the speaker’s self-characterization in a few of the passages cited by Konstan (2001:43) to demonstrate the thesis of his first chapter. His claim, which I find entirely persuasive, is that “pity, in the classical conception … was not something separate and apart from judgments concerning justice and desert, but rather presupposed the innocence … of the accused party. For this reason, an appeal to pity was not accompanied by expressions of remorse, nor a request for pardon or forgiveness; it was designed rather to make vivid to the jury the consequences of condemning an innocent person.” Seen this way, the fundamental intent of these appeals as they are composed by professionals is compatible with a dignified delivery.

On Lysias 21.24–25, Konstan (2001:38) remarks:

The speaker’s intention is to contrast as sharply as possible what his character and history of service to the state ought to earn him with the harsh consequences of a negative verdict. He is not for a moment suggesting that he be spared on the basis of his good deeds or character, in spite of the wrongs he may have committed while holding public office. Rather, he is making vivid to the jury what losing his case would mean for himself and his family, precisely on the assumption that he is innocent. His object is not to ask for mercy, in the sense in which mercy presupposes guilt … ; it is to make sure that no irrelevant motive, such as personal hostility, political partisanship, or favour toward his accuser, may induce the jury to convict him, by making clear what is at stake if they do so. It is a way of charging the jury to take seriously the power at their disposal, and be certain that they do not do grave harm, as they can, on the basis of insufficient evidence, when the charges involving bribery are all the more implausible in light of his history of selfless service to the city.

To this we can add that at §§4 and 24 the speaker claims to have been stoic under circumstances of physical danger.

The speaker at Lysias 7.41 presents a catalog of the misery he will face if convicted:

πάντων γὰρ ἀθλιώτατος ἂν γενοίμην, εἰ φυγὰς ἀδίκως καταστήσομαι, ἄπαις μὲν ὢν καὶ μόνος, ἐρήμου δὲ τοῦ οἴκου γενομένου, μητρὸς δὲ πάντων ἐνδεοῦς <οὔσης>, πατρίδος δὲ τοιαύτης ἐπ᾽ αἰσχίσταις στερηθεὶς αἰτίαις, πολλὰς μὲν ναυμαχίας ὑπὲρ αὐτῆς νεναυμαχηκώς, πολλὰς δὲ μάχας μεμαχημένος, κόσμιον δ᾽ ἐμαυτὸν καὶ ἐν δημοκρατίᾳ καὶ ἐν ὀλιγαρχίᾳ παρασχών.

I would be the most wretched of all men, if I were unjustly forced into exile. I would be childless and alone. My household would be made desolate. My mother would be stripped of everything. I would be deprived, on charges that bring extreme pain, of the native land which means so much to me, for which I have fought many battles on land and at sea, and have behaved well under both democracy and oligarchy.

Despite projecting the picture of his future life as superlatively wretched (ἀθλιώτατος), the defendant cites his military, which is to say his manly, achievements. In the second clause of the last sentence he boasts that he has been consistently kosmios, the very quality I have proposed as encapsulating the “civic personality” skillful forensic speech aimed to display. [
16] Manliness did not exclude manifestations of happiness and grief in private, [17] but in court a man was well advised to keep a stiff upper lip even when – perhaps especially when – he was asking for pity.

Displaying Anger

At the start and conclusion of the Rhetoric (1354a17; 1419b26), and many times in between, Aristotle speaks of orators’ need to arouse ὀργή, anger, in their audiences, but anger is, for him, one of those regrettable phenomena of oratory that would have no place in a well-ordered society because it is πρὸς δικαστήν (“directed to the juryman” [1354a18]). That cranky formulation seems to ignore anger in the speaker, but elsewhere in the Rhetoric Aristotle does recognize that a speaker’s style (lexis) can exhibit too chill a sangfroid and thereby endanger his credibility:

παθητικὴ δέ, ἐὰν μὲν ᾖ ὕβρις, ὀργιζομένου λέξις, ἐὰν δὲ ἀσεβῆ καὶ αἰσχρά, δυσχεραίνοντος καὶ εὐλαβουμένου καὶ λέγειν, ἐὰν δὲ ἐπαινετά, ἀγαμένως, ἐὰν δὲ ἐλεεινά, ταπεινῶς, καὶ ἐπὶ τῶν ἄλλων δὲ ὁμοίως. πιθανοῖ δὲ τὸ πρᾶγμα καὶ ἡ οἰκεία λέξις· παραλογίζεταί τε γὰρ ἡ ψυχὴ ὡς ἀληθῶς λέγοντος, ὅτι ἐπὶ τοῖς τοιούτοις οὕτως ἔχουσιν, ὥστ᾽ οἴονται, εἰ καὶ μὴ οὕτως ἔχει ὡς λέγει ὁ λέγων, τὰ πράγματα οὕτως ἔχειν, καὶ συνομοπαθεῖ ὁ ἀκούων ἀεὶ τῷ παθητικῶς λέγοντι, κἂν μηθὲν λέγῃ. διὸ πολλοὶ καταπλήττουσι τοὺς ἀκροατὰς θορυβοῦντες.

Emotion is expressed if the style, in the case of insolence [hybris], is that of an angry man; in the case of impious and shameful things, if it is that of one who is indignant and reluctant even to say the words; in the case of admirable things, [if they are spoken] respectfully; but if [the things] are pitiable, [if they are spoken] in a submissive manner; and similarly in other cases. The proper lexis also makes the matter credible: the mind [of the listener] draws a false inference of the truth what a speaker says because they [in the audience] feel the same about such things, so they think the facts to be so, even if they are not as the speaker represents them; and the hearer suffers along with the pathetic speaker, even if what he says amounts to nothing As a result, many overwhelm their hearers by making noise.

Rhetoric 1408a16–25 (translation by Kennedy 1991 – but see the discussion immediately following)

At first reading, this may seem to recommend a frankly mimetic style, advice that would of course threaten my general thesis – that professional speech aimed at the restraint of speakers’ affect – but Aristotle is not going that far. The interpretation of the last sentence is crucial, for it appears to report that a plangent delivery succeeds in Attic courts; worse, a style both plangent and dishonest. The speakers who are so characterized may well be working to overcome an objective deficiency in the honesty of their pleadings. [
19] And in the next section Aristotle appears to recommend naturalism in forensic speech:

οὐ γὰρ ταὐτὰ οὐδ᾽ ὡσαύτως ἀγροῖκος ἂν καὶ πεπαιδευμένος εἴπειεν.

A rustic and an educated person would not say the same thing nor [say it] in the same way.

Rhetoric 1408a31–32 (translation by Kennedy 1991)

It is important to keep in mind that Aristotle is habitually aware of gradations, even if he does not make the point explicitly at every step, and there is no reason to think that his prescriptions here are deviations from his ingrained practice. Very soon he is back to his usual caution:

τὸ δ᾽ εὐκαίρως ἢ μὴ εὐκαίρως χρῆσθαι κοινὸν ἁπάντων τῶν εἰδῶν ἐστιν.

Opportune or inopportune usage is a factor common to all [three] species of rhetoric.

Rhetoric 1408b1–2 (translation by Kennedy 1991)

And his specific advice requires a deliberate calibration and recalibration of the artful and the ingenuous:

ἔτι τοῖς ἀνάλογον μὴ πᾶσιν ἅμα χρήσασθαι (οὕτω γὰρ κλέπτεται ὁ ἀκροατής)· λέγω δὲ οἷον ἐὰν τὰ ὀνόματα σκληρὰ ᾖ, μὴ καὶ τῇ φωνῇ καὶ τῷ προσώπῳ τοῖς ἁρμόττουσιν· εἰ δὲ μή, φανερὸν γίνεται ἕκαστον ὅ ἐστιν. ἐὰν δὲ τὸ μὲν τὸ δὲ μή, λανθάνει ποιῶν τὸ αὐτό. ἐὰν οὖν τὰ μαλακὰ σκληρῶς καὶ τὰ σκληρὰ μαλακῶς λέγηται, πιθανὸν γίγνεται.

[D]o not use all analogous effects [of sounds and sense] together; for thus the hearer is tricked. I mean, for example, if the words are harsh, do not deliver them with a harsh voice and countenance. Otherwise, what you are doing is evident. But if sometimes one feature is present, sometimes not, you accomplish the same thing without being noticed. But if, as a result, gentle things are said harshly and harsh things gently, the result is unpersuasive.

Rhetoric 1408b4–10 (translation by Kennedy 1991)

Note the sequence. The text has moved from (a) a suggestion that shouting in the disorderly manner of crowds (θορυμβοῦντες) might be effective, to (b) the advice to make the delivery run counter to the words’ meanings, to (c) a warning not to allow the mismatch of surface content and delivery to go too far. Aristotle is not, after all, suggesting that one go to court and “let it all hang out.” [
20] There is a tantalizing generic mention of professional speechwriters at 1404a34 (one of just three appearances in the Rhetoric of the word logographos), but no explicit comment on how they would usually advise a client on the matter of emotionalism in the composition and delivery of a speech. It would be particularly interesting to know how a professional would advice the rustic (ἀγροῖκος), whose style Aristotle says would be different from that of an educated man (πεπαιδευμένος).

Prima facie, a court speaker’s displays of anger might seem less vulnerable to suspicions of unmanliness, or might even win a favorable reaction from jurymen. Anger is, after all, an emotion that buttresses martial valor; it can, far more pertinently, manifest the proper stance toward classes of persons who injure society. (Aristotle introduces a relevant terminological distinction at Rhetoric 1382a1–7, calling orgê an emotion aimed merely at individuals, misos the emotion aimed against thieves and sycophants.) [22] On the other hand, control of anger is a notably pervasive and conspicuous theme in literature and philosophy throughout the ancient world, and the urgency of restraining and channeling anger is nowhere seen in a greater variety of ways than in our evidence for Athens in the fifth and fourth centuries. It will be sufficient here to refer to the eighth chapter of W. Harris 2001. And just as I do not regard explicit appeals to pity in professional oratory as proof that the speaker was to enact his piteousness, I do not interpret a speaker’s report of his own anger as reliable evidence that he was to manifest rage as he spoke. Here it is crucial to analyze the tone of the Greek as precisely as we can. To my eyes, it is misleading to punctuate with exclamation marks as Allen (2003:76) has done in translating Demosthenes Against Meidias 21.123: “All this bad behavior and his habit of adding to the troubles of people who justly defend themselves against him must be paid back with more than just my getting angry and upset while you look the other way! It’s necessary for everyone to be just as angry!” Moreover, the dramatizing inceptive force of “getting angry” is far from certain in the verb ἀγανακτεῖν, and βαρέως φέρειν does not seem to me to suggest that Demosthenes reports himself as “all shook up” (cf. MacDowell’s translation of both parts as “resent indignantly”). Similarly, I do not accept Allen’s assertion (2003:81) that “[t]he expectation that orators should prove their hot blood, as it were, is also clear from the regularity with which orators display discomfort about delayed prosecutions.”

Rubinstein’s investigation of dicastic anger indicates the risks in attempting to manipulate the jury’s anger, particularly in private cases. Rubinstein remarks (2004:190) that “whatever self-regulation [of the arguments litigants presented] there may have been in Athens would have been exercised by the individual litigants – or their logographers – who would have been constrained only by tactical considerations, not by any consideration of general ethical principles. The crucial tactical decisions made by the author of a forensic speech would have to be made on the basis of what he assumed would be acceptable to the audience.” To this we can add that an individual amateur litigant, lacking the logographer’s restraining hand, would more likely yield to his emotions and allow his rage to break out, thereby offending his judges and harming his case.


[ back ] 1. Plato here represents Socrates as acknowledging frequent attendance at court sessions (34a4: ἐγὼ πολλάκις ἑώρακά τινας ὅταν κρίνωνται [“I have often seen certain men, when on trial …”]). This statement confirms Burnet’s interpretation of Apology 17d.2, νῦν ἐγὼ πρῶτον ἐπὶ δικαστήριον ἀναβέβηκα (“now for the first time I am appearing before a court”): “All he says is that he has never appeared as a party to a case.”

[ back ] 2. Unsurprisingly, a much older Plato retained his contempt for “shameful supplications and effeminate lamentations” and would empower the judges to interrupt these and other utterances he regarded as unsuitable, including oaths (Laws 949b). Apropos the accuracy of Socrates’ charge, one might compare the claim, unsubstantiated in its specifics, in the Protagoras about the shouting down of men on the bêma (319b–c). Plato was of course eager to heroize Socrates, and that desire, together with his own disgust for the democratic courts, might explain the discrepancy between him and Xenophon, who actually calls such appeals during an antitimêsis illegal: see Konstan 2001:36.

[ back ] 3. See Johnstone 1999:174nn55–56 for discussion of whether jurors could be so approached in the fourth century.

[ back ] 4. Thrasymachus’ teaching might have consisted only in model speeches: see Cole 1991, chap. 5, esp. 83–84.

[ back ] 5. Aristotle’s meaning at Rhetoric 1401b3–9 is uncertain. The first underlined word carries an ambiguous connotation; the second is textually dubious: [ back ] ἄλλος δὲ τόπος τὸ δεινώσει κατασκευάζειν ἢ ἀνασκευάζειν· τοῦτο δ᾽ ἐστὶν ὅταν, μὴ δείξας ὅτι ἐποίησεν <μηδ᾽ ὅτι οὐκ ἐποίησεν>, αὐξήσῃ τὸ πρᾶγμα· ποιεῖ γὰρ φαίνεσθαι ἢ ὡς οὐ πεποίηκεν, ὅταν ὁ τὴν αἰτίαν ἔχων ὀργίζηται, ἢ ὡς πεποίηκεν, ὅταν ὁ κατηγορῶν αὐξῇ. [ back ] Kennedy’s translation runs: “Another topic is constructing or demolishing an argument by exaggeration. This occurs when one amplifies the action without showing that it was performed; for when [the accused] amplifies the charge, he causes it to appear that he has not committed the action, or when the accuser goes into a rage [he makes it appear] that [the defendant] has.” δείνωσις might possibly suggest treating some action as horrifying, and using voice and gesture to drive home the point, in which case the translation is too restrained. ὀργίζηται, on the other hand, for which Kennedy gives a full-blooded translation, is the reading of several manuscripts, but it was emended by W. D. Ross in his 1959 Oxford edition to αὐξῃ, “augment” or “exaggerate.”

[ back ] 6. Johnstone 1999:110: “a prosecutor’s warning against what a defendant might do does not prove that he actually did it.” Johnstone’s analysis is discussed at further length later in this chapter.

[ back ] 7. A counterexample to the principle of la solidarité de la famille, the principal subject of Glotz 1904. For a grandfather’s good deeds performed prophylactically, see Andocides 1.141 and Jost 1936:36. Demosthenes 25.84, a prosecution speech, endorses the general principle of extending pity when a litigant’s family was put on display.

[ back ] 8. Konstan 2001:40–41 analyzes the adroit pivot this passage executes.

[ back ] 9. Johnstone 1999:118 makes an astute point about the few instances in which a prosecutor in a dikê uses the plea ad misericordiam: almost all the prosecutors were orphans arguing for their inheritance. Johnstone remarks several times on the asymmetry between prosecutors and defendants and criticizes the view of litigation as basically a competition for honor (see his chap. 4). What he misses is the difference among speakers in navigating this treacherous part of a court presentation.

[ back ] 10. In the proem of the same speech (2.2), for instance, appealing to the jury to listen with good will.

[ back ] 11. For doubling of synonyms to add emphasis, especially with the verb δέομαι, see Slings and de Stryker ad Plato Apology 171c6.

[ back ] 12. We cannot tell whether Aeschines’ words about her, prefaced by ἣ νῦν ἐμοὶ πρὸ τῶν ὀφθαλμῶν προφαίνεται, mean that she was alive and present in court or vivid in Aeschines’ imagination: see Fisher 2001 ad loc. and 16.

[ back ] 13. The speaker of Lysias 24, who defends his eligibility for the one-obol welfare payment (on the matter of authenticity see chapter 2), makes no claim of significant services to the state, only that during the civil war he left the city together with other democrats (25). His appeal at §§7–8 has a piteous ring (“Do not utterly destroy me… . Do not have the hard-heartedness to wrong me, and so cause others in my position to despair”); yet the tone so quickly turns jokey that the speaker’s recovery, as it were, might be intended to suggest that the logographos was eager to have his client show himself capable of self-possession.

[ back ] 14. Johnstone points out (1999:172n43) that Demosthenes never “supplicates” the Ecclesia, perhaps because “this reflects a different relationship between speakers and audience in the Assembly, and in the courts.” Perhaps, though the language of supplication, even when used in an attenuated form in asking for the jury’s sympathy, was felt to be inappropriate when applied to deliberations over policy. A further wrinkle: Johnstone argues several pages later (1999:120–122) that in Athenian culture pity must be understood primarily in terms of cognition, and he insists that “the contemporary institution of Athenian tragic theater provides no basis for understanding pity in the courts.” I agree with Johnstone’s conclusion that litigants are presenting “cognitive claims,” but not the adjective he attaches to that phrase, “implicit.”

[ back ] 15. Johnstone 1999:116–117 thoroughly mines the evidence for physical acts that might count as supplication, but I see no reason to doubt that a speaker’s verbal appeal for pity involved nothing of the kind. At 175n70 he adduces Demosthenes 58.8.70, but that is the speaker’s description of supplication he performed at an earlier trial (“I supplicated him at his knees”). Moreover, the speaker probably never spoke at that earlier trial (he describes himself as young: §§1–3); and the speech as a whole has struck scholars as the product of a “second-rate” writer (inter alios Schaeffer 1858:3.279–80). At 169n4 Johnstone mentions the argument put forth by Navarre that in Greek oratory appeals to pity were acted out, but in ways that the texts do not record (cf. Kennedy 1991:154n76 ad Aristotle Rhetoric 1386a: “defendants in Greek courts probably sometimes dressed for the part to awaken sympathy”). If this was an actual practice, it would, in my opinion, be the desperate expedient of an amateur litigant. An argument from silence, of course, but perhaps true as applied to speeches at an amateur level far distant from the activities of the professional logographoi.

[ back ] 16. I summarize here the most relevant points in a couple of other examples, ostensibly appeals for pity, treated by Konstan 2001, adding some remarks of my own. On Lysias 4.20 Konstan (2001:39) writes: “The appeal to pity is not a means of distracting the jurors from the evidence relevant to the case, but rather of enjoining them to judge in accordance with the facts and with justice, and not heedlessly impose a penalty that will cause an innocent man to suffer gravely, and thus in truth be pitiable.” Note that at 7.41 the speaker claims to have been stoic (kosmios) in battles on land and sea. Not surprisingly, prosecutors might be said to share the defendants’ contention that guilty men deserve no pity (Konstan 2001:41, citing inter alia Lysias 14.40).

[ back ] 17. See Roisman 2005:54, commenting on Apollodorus’ self-reported emotions in [Demosthenes] 53.

[ back ] 18. A further complication: the word ὀργή might have a connotation in lawcourt speech rather different from the apparent plain meaning. MacDowell comments on Demosthenes 19.91: “as often in forensic speeches, this word refers not primarily to the emotion of anger but to conviction in court.” A controversial reading of the word, but not one that can be easily dismissed.

[ back ] 19. Aristotle is optimistic at Rhetoric 1355a22, claiming that the truth is by its nature more powerful than the false: χρήσιμος δέ ἐστιν ἡ ῥητορικὴ διά τε τὸ φύσει εἶναι κρείττω τἀληθῆ καὶ τὰ δί.καια τῶν ἐναντίων, ὥστε ἐὰν μὴ κατὰ τὸ προσῆκον αἱ κρίσεις γίγνωνται, ἀνάγκη δι᾽ αὑτῶν ἡττᾶσθαι… .

[ back ] 20. Consequently I prefer the Rhys Roberts translation of 1408a23–25, even though it stretches the conative element of the imperfective present: “an emotional speaker always makes his audience feel with him, even when there is nothing in his arguments; which is why many speakers try to overwhelm their audience by mere noise.”

[ back ] 21. Orator 131–133. See W. Harris 2001:111 with n124.

[ back ] 22. This is clearly explained in Rubinstein 2004:193 with n18.