In 428 b.c.e. the city of Mytilene launched a revolt against the Athenians and invited the Spartans to send them assistance. The plans for the revolt were reported to the Athenians (3.2),Footnote ¹ who sent a force against the city (3.3). The Mytilenians asked for help from the Spartans (3.4.5–6), but the fleet they sent arrived too late to help the city (3.26.4). The revolt appears to have been the initiative of the city's wealthier citizens: Thucydides reports (3.27–8) that heavy armour was not distributed to the people until Salaethus, the leader of the rebellion, realized that Spartan help would not arrive in time. Once the people received this armour, they refused to take orders from officials and held meetings, insisting that the government should distribute all available grain. If they did not, they threatened to negotiate on their own with the Athenians about surrender. The government was powerless to stop them and decided it was best to come to terms with the Athenians. It was agreed that the Athenians would have the power to act as they wished with the city and that the Mytilenians would have the right to send envoys to Athens to plead their case before the Assembly.

When the Athenians first met to decide about the fate of Mytilene, Cleon persuaded them to put the adult males to death and to enslave the women and children; a trireme was sent to inform Paches of the decision (3.36.2). On the next day, however, the Athenians changed their minds and found the decision to put everyone to death, not just the guilty, harsh and excessive (3.36.4). They therefore persuaded Athenian officials to hold another meeting to reconsider the decision (3.36.5). At this second meeting of the Assembly, Cleon defended his original proposal (3.37–40) and was opposed by a man named Diodotus (3.42–8). Thucydides gives a version of the speeches delivered by the two men. In this essay, I hope to show that the debate between Cleon and Diodotus is not only about Athenian policy toward Mytilene but also addresses a much larger issue, namely, how to address the Athenian Assembly and to conduct political debate. Several scholars have studied the pair of speeches as evidence for Athenian policy toward their allies.Footnote ² This essay approaches the speeches from a different angle and examines the political tactics of each speaker. As Gomme put it, ‘The quarrel between Diodotos and Kleon is as much about how to conduct debate in the ekklesia as about the fate of Mytilene’.Footnote ³ Cleon not only opposes any attempt to overturn his decree; he also criticizes his opponents' style of argument and denounces their entire approach as inappropriate to debate in the Assembly. In a similar manner, Diodotus goes beyond opposing Cleon's proposal and argues that Cleon's rhetorical style and political tactics undermine constructive deliberation and therefore pose a general threat to the city. Although some scholars have noted that Diodotus criticizes Cleon's rhetoric and style of argument, previous analyses of the debate have not noticed that Diodotus' critique goes much deeper than this and exposes Cleon's political tactics as well.Footnote ⁴

Thucydides' version of the debate reflects a keen awareness of rhetorical practice and the implicit rules of different genres of oratory. The best evidence for these rules is found in Aristotle's Rhetoric and the Rhetorica ad Alexandrum attributed to Anaximenes.Footnote ⁵ These works drew on a long tradition of reflection on rhetorical practice reaching back to Corax and Tisias, contemporaries of Thucydides. Both Aristotle and the author of the Rhetorica ad Alexandrum (1421b) divide oratory into three types: the judicial (dikanikon), the deliberative (demegorikon or symbouleutikon) and the epideictic (epideiktikon). Aristotle describes the basic characteristics of each speech in the first book of the Rhetoric (1358a–1359b). A deliberative speech aims either to exhort or dissuade and concerns the future because the speaker discusses future events. The goal of this kind of speech is to show that a certain course of action is going to be either advantageous or harmful (τὸ συμϕέρον καὶ βλαβερόν). The audience for this kind of speech is the member of an assembly. A speaker may introduce considerations of justice, but they should be subordinate to the main issue of advantage. In the law court, there is either an accusation or a defence. This kind of speech concerns the past because the accusation and the defence examine what has been done. The goal of the speaker is to prove that an action is just or unjust. The audience for this speech is the judge. The aim of the epideictic speech is to praise or to blame. This kind of speech generally looks to the present and praises or blames existing qualities, but may also glance at the past and future. The audience of the epideictic speech consists of spectators who are concerned with the speaker's ability (Arist. Rh. 1358b: ὁ δὲ περì τῆς δυνάμεως ὁ θεωρός).Footnote ⁶

Aristotle did not invent these types of speeches but was only codifying existing practices.Footnote ⁷ The distinction between deliberative and judicial oratory was rooted in the different constitutional functions of the Assembly and the courts. The role of the Assembly both in the fifth and the fourth centuries was to determine public policy and take decisions about matters affecting the community as a whole.Footnote ⁸ Aristotle (Rh. 1359b, cf. Rh. Al. 1423a20–6) says that the topics of deliberative speeches are finances, war and peace, national defence, imports and exports, and legislation, and the first three form the subject matter of addresses to the Assembly in Thucydides' speeches.Footnote ⁹ Speakers addressing the Assembly in Thucydides and Xenophon tend to base their arguments on the city's interest,Footnote ¹⁰ and the forensic speeches of Antiphon, Andocides and Lysias already contain many of the arguments prescribed by Aristotle for courtroom speeches.Footnote ¹¹ The different types of arguments used in the courts reflect their different function, which was to act as guardians of the laws and to punish those who broke the law (Dem. 24.36; Lycurg. Leoc. 4).

Isocrates recognizes epideictic oratory as a distinct genre, which he contrasts with other forms of oratory. Epideictic oratory was often viewed as a contest in which speakers competed with one another to show off their skill as speakers. According to Isocrates (Ep. 1.6), the best place to display one's talent was at a festival because ‘each can make known his abilities to the largest audience’. He contrasts this type of speech with a speech on practical matters.Footnote ¹² There was a strong element of competition in epideictic oratory: in his Funeral Oration Lysias believes that he is competing (ἀγών) with those who have previously spoken in honour of the deceased (Lys. 2.2). One of the best ways to display one's cleverness was to prove outrageous paradoxes. Gorgias in his Helen argues that Menelaus' wife bears no responsibility for betraying her husband and is not to blame for being seduced by Paris. In his On What is Not Gorgias attempts to demonstrate the startling proposition that nothing exists. In Plato's Phaedrus (230e–234c) Socrates hears a speech of Lysias showing that it is better for a youth to yield to a man who does not love him rather than one who does. Scholars doubt that this speech is a genuine work of Lysias, but the theme is characteristic of epideictic oratory.

When Cleon attacks his opponents for reopening the debate about Mytilene, he claims that they are treating the issue as if it were a contest in epideictic oratory.Footnote ¹³ Instead of examining the merits of his opponents' arguments, Cleon accuses them of acting like sophists who revel in paradoxes (3.38.7). He claims that they seek to show that ‘the wrongs done by the Mytilenians are to our advantage, and that our losses are harmful to our allies’ and that ‘what was completely decided has on the contrary not been decided’ (3.38.1). Just as sophists speaking in an epideictic contest try to disprove what appears to be self-evident, Cleon's opponents are criticized for defying common sense.Footnote ¹⁴ These are the paradoxes to which Cleon says the Athenians are enslaved (3.38.5: δοῦλοι ὄντες τῶν αἰεὶ ἀτόπων). As a result, they have become suspicious of common sense (3.38.5: ὑπερόπται … τῶν εἰωθότων). Cleon blames his audience for holding these wicked contests (3.38.4: κακῶς ἀγωνοθετοῦντες), which are dangerous for the city, and for acting like spectators (3.38.4 and 7: θεαταί … θεαταῖς) in a speaking competition rather than men deliberating about public matters (3.38.7: περὶ τῆς πόλεως βουλευομένοις). It is significant that Aristotle (Rh. 1358b) also calls the person who hears an epideictic speech a ‘spectator’ (θεωρός). Cleon also upbraids the Athenians for being ‘very good at allowing themselves to be deceived’ (ἀπατᾶσθαι ἄριστοι). This may be an allusion to the view of Gorgias that the art of speaking was a form of deceit (ἀπάτη).Footnote ¹⁵ Those who speak in the Assembly should not be overcome by their own impressive talents (δεινότητι) and this competition to show off one's intelligence (ξυνέσεως ἀγῶνι) (3.37.5).

After Cleon attacks his opponents for making the wrong kind of speech in the Assembly, one would expect him to make the right kind of speech and use the language and arguments found in deliberative oratory. Toward the end of the speech he does address the issue of public revenues (3.39.8: prosodou), which Aristotle (Arist. Rh. 1359b) says is one of the five topics that form the subject matter of deliberative oratory. He predicts that if the Athenians impose the same penalties on those who are forced to revolt by the enemy and those who do so willingly and do not impose harsh punishments on the latter, there will be no deterrent to prevent them from rebelling. Even if the Athenians succeed in putting down each revolt, they will lose a valuable source of revenue (3.39.8). In the rest of the speech, however, he approaches the debate as if he were a prosecutor in court rather than a speaker in the Assembly. He speaks of the injustices (ἀδικίας) done by the Mytilenians to the Athenians (3.38.1: ἀδικίας; 3.39.1: ἠδικηκότας). He says that they are guilty (3.39.6: ἡ αἰτία). He also uses the language of punishment, which is suitable for forensic oratory. He argues that punishment is most effective when retaliation follows as soon as possible after the crime (3.38.1). At the end of his speech he urges the Athenians to pay the Mytilenians back with the same punishment (3.40.5: ζημίᾳ) and to punish them as they deserve (3.39.6: κολασθέντων … ἀξίως τῆς ἀδικίας; 3.40.7: κολάσατε ἀξίως). In this way they will demonstrate that revolt will be punished by death (3.40.7: θανάτῳ ζημιωσόμενον). Those making deliberative speeches in Thucydides tend to avoid this language; outside this pair of speeches the noun ζημία and the verb ζημιοῦν tend to occur only in narrative and in legal contexts (2.24, 65.3; 3.70.4, 5; 4.65.3; 5.63.2, 4; 8.15.1, 21, 67.2, 73.6, 74.3).Footnote ¹⁶

Scholars have often noted that Cleon uses the language of justice, wrongdoing and punishment.Footnote ¹⁷ Less attention has been paid, however, to Cleon's use of many common themes and arguments found in forensic oratory and to his unusual political tactics.Footnote ¹⁸ Cleon strikes a legal tone very early in his speech when he declares that ‘the most terrible thing of all would be … for us not to realize that a city that abides by laws which are worse but remain unchanged is stronger than one that has good laws that are never enforced’ (3.37.3). Here Cleon draws on several themes often found in court speeches. The first is that the laws should remain the same and that it is dangerous to have laws constantly changed.Footnote ¹⁹ To keep the laws stable, Solon is said to have made the Athenians swear that they would not alter them for either ten or a hundred years.Footnote ²⁰ Antiphon (6.2) praises the laws about homicide because they have remained unchanged for a long time (cf. Dem. 20.153). Demosthenes (24.139–43) tells the court that the Locrians ordered that all those who proposed to introduce a new law did so with a noose around their neck. If the proposal did not pass, the noose was pulled tight and the proposer hanged. Demosthenes praises the Locrians because they have only passed one new law in many years. Earlier in the same speech (24.24) Demosthenes commends the laws about legislation because they have been in effect for a long time and have often proved their worth. In his speech Against Leptines Demosthenes views frequent changes in the laws as a symptom of disorder (Dem. 20.90–2). Already in the fifth century the Athenians often added entrenchment clauses to important measures to ensure that they would not be altered.Footnote ²¹

The second theme is that the city owes its strength and power to obedience to the laws (3.37.3: νόμοις ἀκινήτοις χρωμένη πόλις κρείσσων). According to Aeschines (3.6), when the Athenians observe the laws, the democracy remains strong. By the same token, when judges are distracted by irrelevant matters, the laws are neglected and the democracy undermined (cf. Aeschin. 3.23; Lycurg. Leoc. 3–4; Andoc. 1.9). Demosthenes (24.215–16) goes so far as to claim that Athenian military power derives from its citizens' willingness to obey the laws: ‘Does Athens not have more triremes than any Greek city? More hoplites? More cavalry? More revenue? More possessions? More harbours? What protects and preserves all these things? The laws. When the city obeys them, all these resources serve the common interest.’

The third theme is the importance of enforcing the laws for them to have their full effect. Cleon contrasts laws that are followed with those that are not enforced (ἀκύροις). In his speech Against Meidias Demosthenes (21.224) asks: ‘What makes the laws strong? Will they come running and be there to help someone if he is wronged and cries out? Of course, they cannot; the laws have force only if the court confirms them and makes them valid (κυρίους) each time a victim asks for justice.’ When prosecuting Neaera, Apollodorus tells the court that if they do not punish her, their laws about marriage and citizenship will no longer be valid ([Dem.] 59.112: οἱ μὲν νόμοι ἄκυροι ὑμῖν ἔσονται; cf. Lys. 1.34). Aeschines (1.177) reminds the judges in the trial of Timarchus that if they punish wrongdoers the laws will be excellent and valid, but if they let them go, the laws will be excellent, but no longer valid (κύριοι) (cf. Dem. 50.1). Note however that Aeschines' contrast is slightly different from Cleon's. Aeschines contrasts laws that are enforced with those that are not, but in both cases he calls the laws of Athens good. Cleon's contrast goes one step beyond this when he claims that it is better to follow consistently laws that are not as good than to have laws that are good but are never enforced. Aeschines makes a general point about the importance of enforcing the law whereas Cleon argues that it is more important to follow the law than to enact good laws. Cleon therefore gives priority to obedience to the laws. Aeschines (1.6) would have disagreed for he thinks that both aims are important: ‘When we legislate, we must see to it that we enact laws that are good and beneficial to our constitution, but after we have legislated, we must obey the established laws and punish those who do not obey.’ Cleon's argument (or Thucydides' version of it), though based on several traditional ideas about the law, also distorts these views. No litigant addressing an Athenian court ever says that the city's laws are bad.Footnote ²²

In forensic oratory it was normal for the accuser to urge the judges to be angry with the defendant because he has broken the law.Footnote ²³ At the same time the accuser would argue that the judges should not feel pity for the defendant.Footnote ²⁴ By contrast, defendants would claim that they deserved pity because they were innocent.Footnote ²⁵ In one of the earliest preserved court speeches, a young man who is prosecuting his stepmother for killing his father tells the court that they should show no pity for her because she showed none for him (Antiph. 1.26). When prosecuting Meidias on a charge of outrage (hybris), Demosthenes (21.46) tells the court: ‘There is nothing, men of Athens, nothing at all that is more intolerable than outrage (hybris) nor anything that more deserves your anger (ὀργίζεσθαι).’ Meidias does not deserve pity because ‘it is right to pity the victims of some injustice that they will not be able to endure, not those who are being punished for the terrible things that they have done’ (Dem. 21.99). Later in the speech he predicts that Meidias will bring his children into court to make the judges feel sorry for him (Dem. 21.186). Demosthenes (21.196) asserts: ‘There is no way that pity is the appropriate response for you, not in any respect, but the opposite: hatred and loathing and anger. These are the responses that your actions deserve.’ An accuser in a case of military desertion reminds the judges of their duty to vote according to the established laws ‘and not to pity those who do wrong, but rather to be angry with them’ (Lys. 15.9). Another accuser tells the court that they should be angry with some metic grain dealers for trying to deceive the Athenians to help themselves (Lys. 22.3–9).

Like a prosecutor in court, Cleon argues that the Athenians should act on their feelings of anger. He says that they should not hesitate to punish the Mytilenians because when one delays, one's anger is less keen (3.38.1: ἀμβλυτέρᾳ τῇ ὀργῇ).Footnote ²⁶ Diodotus recognizes that Cleon appeals to this emotion when he admits that his opponent's speech is more attractive to the Athenians because of their anger toward the people of Mytilene (3.44.4: orgên). Cleon also warns the Assembly that there are three things most detrimental to those who hold power, and pity is one of them: only those who can reciprocate have a right to pity, not those who will never pity the Athenians in return and are by necessity their enemies (3.40.2). Earlier in his speech, he orders them ‘not to give in to pity’ (3.37.2: οἴκτῳ ἐνδῶτε).Footnote ²⁷ It is significant that the words used for pity (οἶκτος, ἔλεος) in this speech occur in no other deliberative speech in Thucydides; the only other pair of speeches in which they are found is the quasi-judicial debate about the Plataeans. The Plataeans, who defend their conduct, ask for pity (3.59.1), and the Thebans, who act as prosecutors, deny that they are entitled to pity (3.67.2, 4).Footnote ²⁸ Some scholars argue that Cleon's approach is more emotional and contrast it with Diodotus' more rational and intellectual approach. This is not quite accurate because Cleon makes rational arguments to argue his points; his argument that it is necessary to punish the Mytilenians to discourage other allies from revolting is far from irrational. The reason why Cleon employs the language of anger and pity is because he approaches the debate like a prosecutor in court who seeks to make the judges so angry that they are willing to impose a harsh punishment. As we will see, Diodotus' main objection to this language is that it is inappropriate for debate in the Assembly.

To prove that a defendant was guilty, the accuser had to show not only that he had violated the law but also that there were not any extenuating circumstances.Footnote ²⁹ Even though Athenians judges were strictly bound by oath to follow the law,Footnote ³⁰ they could take various factors like ignorance, duress, lack of intent or pleas of necessity into account when reaching their decision and show forgiveness (συγγνώμη). This was called ‘fairness’ (epieikeia), to which Demosthenes (21.90) says that all defendants were entitled.Footnote ³¹ For instance, Lysias (12.25, 29, 31, 52) reports that Eratosthenes would defend himself by claiming that he had acted under duress and was compelled to follow the orders of the Thirty when he arrested Lysias' brother Polemarchus.Footnote ³² According to the prosecutor in another speech of Lysias (22.5–9) the grain dealers who were accused of breaking the law about buying grain denied their guilt on the grounds that they were acting on a magistrate's orders. When defending his proposal to award a crown to the Council for their performance of their duties, Androtion argued that the Council should not be held responsible for their failure to build triremes because the treasurer absconded with funds, an event beyond their control (Dem. 22.16–20). In a maritime case, a merchant named Dareius predicts that his opponent Dionysodorus will claim that his partner Parmeniscus was prevented from fulfilling the terms of their contract because his ship was damaged and was forced (ἀναγκασθῆναι) to put in at Rhodes ([Dem.] 56.21). There is evidence that the Athenian courts accepted these excuses: the naval records indicate that trierarchs were not convicted of failing to return naval equipment if they could prove that they lost it during a storm (IG ii² 1629.746–9, 796–9; 1631.116–19, 142–3, 150).Footnote ³³

Cleon, like other prosecutors, asserts that ‘fairness’ does not apply in this case and that the defendants do not deserve forgiveness. In fact, he says that fairness (ἐπιεικείᾳ), like pity, is against the interests of those in power (3.40.2). Only those who will be friendly to Athens in the future, not those who will remain their enemies, deserve fairness (3.40.3).Footnote ³⁴ This denial of fairness is similar to an argument made by Agoratus' accuser, who says that if their crimes are very great, defendants should be punished even when they act against their will (Lys. 13.52).Footnote ³⁵ The Mytilenians however have no excuse: they did not harm Athenian interests against their will (ἄκοντες μὲν γὰρ οὐκ ἔβλαψαν), but plotted against them in full knowledge (εἰδότες δὲ ἐπεβούλευσαν, 3.40.1).Footnote ³⁶ Only those actions done against one's will deserve forgiveness (ξυγγνώμον δ' ἐστὶ τὸ ἀκούσιον).Footnote ³⁷ Cleon admits that he has forgiveness (ξυγγώμην) for allies who revolt because the Athenians have oppressed them or because they are compelled by the enemy (ὑπὸ τῶν πολεμίων ἀναγκασθέντες, 3.39.2). He then shows that the Mytilenians have not been oppressed and therefore do not have the first excuse: they have fortifications and triremes to protect them and enjoy autonomy and good treatment from the Athenians (3.39.2). It is important that the Athenians not impose the same punishment (τὰς αὐτὰς ζημίας) on those who revolt when compelled by the enemy and on those who do so willingly (3.39.7). Aristotle (Rh. 1374b) gives this argument as an example of epieikeia, which he discusses in his analysis of forensic rhetoric (τὸ τὰ ἁμαρτήματα καὶ τὰ ἀδικήματα μὴ τοῦ ἴσου ἀξιοῦν). Nor can the Mytilenians plead ignorance as an excuse: they knew that other rebellious allies had been punished (3.39.3).Footnote ³⁸ Just as Demosthenes (21.38–41) tries to prove that Meidias acted with deliberate intent to humiliate when he punched him at the Dionysia and had no excuses, Cleon says that the Mytilenians committed an act of planned aggression, a deliberate choice to side with Athens' enemies (3.39.2: ἐπεβούλευσαν). Cleon makes a distinction between those who revolt because they have suffered some violence (3.39.2: ἀπόστασις μέν γε τῶν βίαιόν τι πασχόντων ἐστίν) and those who attack (ἐπανέστησαν) and act with the intent to destroy the Athenians (διαϕθεῖραι).Footnote ³⁹ This argument is aimed at proving that the Mytilenians did not act in self-defence but with clear criminal intent, another standard feature of speeches made by accusers in court. After showing that there are no extenuating circumstances, Cleon asserts that the Mytilenians were motivated by hybris, which was brought on by their prosperity (3.39.3–5). It is significant that other speakers addressing the Athenian Assembly in Thucydides do not in general use this term, which they find inappropriate for a deliberative speech.Footnote ⁴⁰

Another commonplace from forensic oratory found in Cleon's speech is the warning against talented speakers who use their skill to undermine the law. Cleon charges that his opponents ‘always wish to appear more clever (sophôteroi) than the laws and want to come out ahead in all public debates because they cannot express their opinions on other more important issues. With such behaviour they often destroy their own communities’.Footnote ⁴¹ The best-known example of this topos occurs in the opening phrases of Socrates' speech at his trial (Pl. Ap. 17a–18a) in which he reminds the judges how his opponents have warned them that Socrates is a clever speaker (deinos legein), who will attempt to mislead them.Footnote ⁴² One can find several other examples. For instance, Diodorus, when prosecuting Androtion for passing an illegal decree, makes a similar warning: ‘When it comes to public speaking, this man is a skilled practitioner and has devoted his whole life to this subject. To make sure that you will not be misled and persuaded to cast a vote that violates your oath and to acquit this man, whom you should punish for many reasons, pay close attention to what I am going to say …’ (Dem. 22.4; cf. [Dem.] 52.2). The judicial oath obligated judges to follow the laws of Athens; Diodorus like Cleon claims that Androtion will use his skill in speaking to forget the oath and to ignore the laws. Demosthenes (29.13) makes a similar charge against Aphobus.

Closely related to this forensic tactic is the charge of accusing one's opponent of being a sophist. Cleon implicitly makes this accusation when he compares the Assembly to an audience listening to sophists (3.38.7: σοϕιστῶν θεαταῖς ἐοικότες). Aeschines accuses Demosthenes of being a sophist, who will boast to his students that he distracted the judges from the charges against Timarchus (Aeschin. 1.173–6; cf. 3.35). A speaker in a maritime case accuses his opponent Lacritus of being a sophist trained by Isocrates, who will attempt to use his cleverness to deny him justice (Dem. 35.39–40). In his speech against Ctesiphon Aeschines (3.16, 202) warns the judges not once but twice that Demosthenes is a sophist who thinks that he can destroy the laws. Demosthenes (19.246) later flung the same charge back at Aeschines.Footnote ⁴³ In his defence of Ctesiphon Demosthenes (18.226–7) accuses Aeschines of acting like a sophist (σοϕίζεται) and treating the trial like a speaking contest (ῥητόρων ἀγῶνα) in which the eloquence of the speeches are judged, not an examination of his political career. Just as litigants in court claim their opponents will try to distract the judges from the main issue, Cleon predicts that his opponents will try to mislead the Assembly with specious arguments (3.38.2: τὸ εὐπρεπὲς τοῦ λόγου ἐκπονήσας παράγειν πειράσεται).Footnote ⁴⁴ Other litigants echo Cleon's argument by accusing their opponents of despising or looking down on the laws (Antiph. 6.47; [Dem.] 42.2; [Dem.] 59.77; Isoc. 16.2; 18.1; 20.22; Lys. 14.9; fr. 195 Carey [= Ath. 12.551d–552b]; Aeschin. 3.203), which implies that they consider themselves superior to the laws.Footnote ⁴⁵ In Thucydides no other speaker in the Athenian Assembly uses these tactics.

In the concluding section of his speech (epilogos) the accuser often asks the court to punish the defendant and make an example out of him as a deterrent to crime. Toward the end of his speech against Meidias, Demosthenes (21.227) tells the court: ‘you were chosen by lot to judge the case, and it is in your power to put an end to the matter with a single vote, will you now hesitate to help me, to bring joy to the people, to teach discipline to others, and to enable you yourselves to live in complete security for the future by making this man an example (παράδειγμα) for others?’ Another accuser exhorts the court to make an example of Androtion: ‘You should impose a penalty today for all his crimes and provide an example for others so they will show greater restraint’ (Dem. 22.68). In a prosecution for treason during an embassy, Demosthenes (19.343) asks the court to punish Aeschines and make an example of him for the citizens and the other Greeks (cf. Lycurg. Leoc. 150). Other speakers stress the deterrent effect of harsh penalties (cf. Dem. 45.87).Footnote ⁴⁶ An accuser in a case about bribery predicts that if the court punishes the defendant, their verdict will send a warning to those who steal public property and make them more virtuous (Lys. 30.23–4).Footnote ⁴⁷ Apollodorus urges the court to condemn Neaera so that others will be more careful and respect the gods and the city ([Dem.] 59.77). At the end of his speech in a case of assault, Ariston says that if the court acquits Conon there will be more violent crime; if they convict, there will be less (Dem. 54.43). In a similar fashion Cleon emphasizes the deterrent effect of punishment and tells the Assembly to ‘punish these men as they deserve and set a clear example (παράδειγμα) for your other allies that whoever rebels will be punished with death. If they understand this, you will spend less time fighting your allies and neglecting your enemies’ (3.40.7).Footnote ⁴⁸ It is no coincidence that Cleon, like other accusers, places this argument in the concluding section of his speech.Footnote ⁴⁹

In his reply to Cleon Diodotus not only opposes his decree but rejects his entire approach to the debate. His attack is directed not only at Cleon's language but also at his political tactics. He signals his own attitude in the first sentence of his speech (3.42.1): he says that he neither accuses (αἰτιῶμαι) those who have proposed another debate nor praises (ἐπαινῶ) those who blame those who criticize the practice of holding several discussions of important issues. When he says he does not ‘accuse’, he indicates that he is not going to deliver a judicial speech; when he says he does not ‘praise’, he hints that he is not about to give an epideictic speech. He continues by denouncing Cleon's attacks on his opponents as inappropriate behaviour in the Assembly. These tactics may be acceptable in a law court, but in the Assembly attacks on character inhibit free discussion by discouraging speakers from expressing their actual views (3.42.1–3). The city does not gain from this approach, which deprives it of advisors by intimidation (3.42.4). Diodotus refuses to play by Cleon's rules, which are unsuitable for debate in the Assembly. He is not going to make an accusation (3.44.1: κατηγορήσων) or discuss guilt or forgiveness (3.44.1–2: ἀδικίας … ξυγγνώμης). This is because the Athenians are not engaged in litigation (οὐ δικαζόμεθα) but deliberating (βουλευόμεθα) about how the people of Mytilene can serve their interests (χρησίμως ἕξουσιν, 3.44.4).Footnote ⁵⁰ He therefore looks to the future just as Aristotle says that a speaker should do when addressing the Assembly (3.44.3: μέλλοντος). Those in the Assembly should likewise not act as judges (3.46.4: οὐ δικαστάς …). His rejection of Cleon's judicial rhetoric and tactics could not be more explicit.Footnote ⁵¹ On the other hand, Diodotus does not object to putting the guilty on trial; he objects to trying them at a meeting of the Assembly (3.48.1: κρῖναι). His overall argument is constitutional as well as rhetorical: the Athenians should deliberate about public policy in the Assembly and try individuals in the courts. By attempting to conduct a trial in the Assembly, Cleon is urging the Athenians to make a serious political mistake.

Diodotus also refuses to use the standard appeals to anger or pity found in judicial rhetoric. Anger is out of place in discussions before the Assembly because it inhibits proper deliberation by encouraging hasty and foolish decisions (3.42.1). Diodotus also states that the Athenians should not be influenced by pity (οἴκτῳ) or a sense of fairness (ἐπιεικείᾳ), just as Cleon does (3.48.1), but his reasons are different. Cleon argues that the Mytilenians do not deserve pity or fairness because they are clearly guilty; Diodotus rejects this language because it is not appropriate to debate in the Assembly. While Cleon champions the importance of enforcing the law and the deterrent value of punishment, Diodotus questions the power of the law to prevent revolts. Even though many laws have been passed with the death penalty, men will still commit crimes if they are confident of success; the same is true for states (3.45.1–2, 6–7). In an earlier period, punishments were less severe, but as time went on, they grew more and more harsh and included the death penalty, yet men still broke the law (3.45.3–4). Because the law is ineffective in preventing revolts, the Athenians should adopt a policy that makes it more likely that a rebellious city will surrender rather than fight to the end. In contrast to Cleon, who lays great stress on what the Mytilenians have done in the past, Diodotus looks to the future in the way one should in a deliberative speech. If it is possible for a rebellious city to come to terms and expect lenient treatment, it is more likely that the city will surrender rather than fighting to the bitter end (3.46.1–2). This way the Athenians will not have to spend their resources on a lengthy siege and be able to regain the revenue from tribute they need to fight their war against Sparta (3.46.3). Diodotus does not just oppose Cleon's proposal; he questions his use of language and political tactics. All the important terms in Cleon's vocabulary – punishment, guilt, law, anger and pity, fairness, attacks on intelligence – are shown to be inappropriate when addressing the Assembly.Footnote ⁵²

Many scholars consider Diodotus a hard-headed realist with no illusions about inter-state relations. For instance, de Ste Croix thought that Diodotus adopts a realist approach to foreign affairs and expresses Thucydides' own views about the absence of moral standards in inter-state relations.Footnote ⁵³ Connor believes that ‘Diodotus … presents himself as the clear-thinking, tough-minded realist’.Footnote ⁵⁴ This misses the point of Diodotus' critique of Cleon's speech. Diodotus does not rule out the importance of justice in foreign policy (see the discussion of 3.47 below). What he objects to is Cleon's judicial approach to the debate, which is detrimental to proper deliberation in the Assembly. Diodotus does not endorse a realist view of foreign policy; he only insists that the Assembly should debate the question of Mytilene in terms appropriate to its political function, which is to consider what is in the public interest. His critique is grounded in a shrewd understanding of the constitution of Athens.Footnote ⁵⁵

Throughout most of his speech Diodotus rejects considerations of justice and argues that the interests of the community should take precedence. Toward the end of his speech, however, he uses the language of justice when he says that the Athenians will do wrong if they put to death the common people who have been their benefactors (3.47.3: ἀδικήσετε εὐεργέτας κτείνοντες), which appears to be inconsistent with his previous statements. Gomme thought that ‘Diodotus at this point departs from his coldly realist approach and realizes that he cannot after all keep justice, the moral question, altogether out of the argument’.Footnote ⁵⁶ Winnington-Ingram believed that here Diodotus accepts the terms of the debate imposed by Cleon and follows his view of justice as reciprocity.Footnote ⁵⁷ Macleod also found Diodotus inconsistent in this ‘appeal to considerations of justice, in spite of his declared preference for ones of expediency’.Footnote ⁵⁸

Though both speakers invoke the principle of reciprocity, there is a crucial difference between Cleon's type of justice and that of Diodotus. Aristotle in the Nicomachean Ethics (1130b–1131a) observes that there are different types of justice and makes a distinction between distributive justice (διανεμετικόν) and rectificatory justice (διορθωτικόν). The former allocates respect, money and other items (ἐν ταῖς διανομαῖς τιμῆς ἢ χρημάτων ἢ τῶν ἄλλων) among the members of a political community (κοινωνοῦσι τῆς πολιτείας); the latter regulates interactions between individuals (ἐν τοῖς συμαλλάγμασι). Distributive justice allocates goods to a person for some virtue. This kind of justice is achieved by the correct geometrical proportion: the person who is better receives a greater share than the one who is not as good (Arist. Eth. Nic. 1131b27–30). Rectificatory justice, on the other hand, treats both parties, accuser and defendant, on an equal level and considers only the wrong done by the latter to the former. It does not take the defendant's general moral character into account. As Aristotle (Eth. Nic. 1132a) says, ‘it makes no difference whether a decent person has defrauded a worthless one or a worthless person a decent one, or whether the seduction was committed by someone decent or someone worthless; the law pays attention solely to the imbalance created by the damage done (πρὸς τοῦ βλάβους τὴν διαϕορὰν)’ (tr. adapted from C. Rowe). It imposes punishment for wrongdoing. This is the kind of justice that Cleon urges the Assembly to use against the people of Mytilene (cf. 3.40.1: ἔβλαψαν).

The first kind of justice is relevant to the Assembly, the second to the court. Judges in Athenian courts swore an oath to decide only about the charges made in the accuser's indictment; they did not make a general decision about his character.Footnote ⁵⁹ A defendant reminds the accuser about the solemn oath he would have sworn in a homicide court ‘that you would accuse me only about the murder itself, that I had committed it and no matter how many wrongs I had done I would not be convicted for any reason but this, and if I had performed many good deeds, they would not have saved me’ (Antiph. 5.11).Footnote ⁶⁰ This meant that the courts made their decisions only about the guilt of the defendant and did not take their public service into account. One accuser in a case of assault mentions that he could have said much about his service as a trierarch and as a soldier but states that these matters are not relevant to the case (Dem. 54.44). Aeschines (3.195) recalls that ‘Archinus of Koile indicted Thrasybulus of Steiria on a charge of proposing an illegal decree when he proposed some measure contrary to the laws although he was one of those who returned from Phyle with him, and convicted him. Even though the services (euergesias) he had performed were recent, the judges took no account of them’. Dinarchus (1.14) says that an Athenian court imposed a large fine on the general Timotheus because ‘you did not place more weight on public service (euergesias) like this than on the charge brought against him and the oaths you swore when you were casting your votes, but you assessed a penalty of one hundred talents because Aristophon stated that he had taken money from the Chians and the Rhodians’. In his speech Against Meidias Demosthenes (21.143–6) says that the distinguished career of Alcibiades and his family did not prevent him from being sent into exile for his arrogant and insulting actions (hybris).Footnote ⁶¹

Although the courts could not take public service (euergesia) into account when determining guilt, one of the roles of the Assembly was to reward the city's benefactors (euergetai) and those who were friendly to the Athenian people.Footnote ⁶² Diodotus says that the common people in all the cities are well disposed to the Athenians (ὑμῖν … εὔνους).Footnote ⁶³ There are several honorary decrees passed by the Assembly from the fourth century that praise citizens or foreigners for the same quality. For instance, a decree dated to 344/3 praises the city of Pellana for always being friendly and well disposed (ε[ὔνους …) to the Athenian people (IG ii² 220, lines 15–18). Another decree, this one dated to 325/4, praises Heraclides of Salamis for always being well disposed (διατελεῖ εὔνους ὤν) toward the people and awards him a gold crown for his goodwill (εὐνοίας) towards the Athenians (IG ii² 360, lines 12, 15). The earliest extant example of a crown awarded for goodwill towards the Athenian people is found in a decree dated to 405/4 for Epicerdes of Cyrene (IG i³ 125, lines 27–9).Footnote ⁶⁴ In the fifth century the Assembly honoured many foreign benefactors.Footnote ⁶⁵ To some they granted the title and privileges of a proxenos.Footnote ⁶⁶ Thus when Diodotus appeals to a principle of justice when arguing against putting all the male citizens of Mytilene to death, he invokes a type of justice that was appropriate for the Assembly to follow. In his view Cleon's form of retributive justice (τιμωρία) could not combine justice and the interests of the community (3.47.5: καὶ τὸ Κλέωνος τὸ αὐτὸ δίκαιον καὶ ξύμϕερον τῆς τιμωρίας οὐχ εὑρίσκεται ἐν αὐτῷ δυνατὸν ὂν ἅμα γίγνεσθαι).Footnote ⁶⁷

Yet Diodotus does not completely reject the principles of rectificatory justice. He says that if the Athenians vote to execute the common people of Mytilene, who did not share responsibility for the revolt, they would be punishing their benefactors.Footnote ⁶⁸ This would play into the hands of the upper classes in the future because they would have the common people on their side in any future revolt were the Athenians to impose the same penalty on those who were guilty and those who were not (3.47.3: τὴν αὐτὴν ζημίαν τοῖς τε ἀδικοῦσιν ὁμοίως κεῖσθαι καὶ τοῖς μή). Here Diodotus speaks the language of guilt and innocence and implies that it is right to punish the guilty. Ironically enough, his point that one must treat differently the guilty and the innocent echoes one made by Cleon (3.39.7: τὰς αὐτὰς ζημίας). He is more explicit in his concluding words when he advises the Athenians to judge those who are charged with wrongdoing (3.48.1: ὡς ἀδικοῦντας κρῖναι) and to let the others go.Footnote ⁶⁹ He has no objection to punishing the guilty in the courts; he is against treating a debate in the Assembly about the fate of an entire city like a trial. When he urges the Athenians not to punish the innocent, however, he does so mainly because such a policy would serve their interests and harm those of the enemy. His own proposal attempts to combine justice and advantage. Diodotus does not criticize Cleon so much for attempting to combine the two but for trying to combine them in the wrong way.Footnote ⁷⁰

What Diodotus in effect criticizes Cleon for is dragging the tactics of the law courts into the Assembly.Footnote ⁷¹ Thucydides may have distorted some of Cleon's arguments and rendered the tone of his speech more violent than it actually was, but there is no reason to doubt that Cleon would have used such tactics in the Assembly. As Andrewes noted, ‘Aristophanes’ Kleon is recognizably a caricature of the same man we find in Thucydides'.Footnote ⁷² From Aristophanes' Knights we know that Cleon used the threat of prosecution to intimidate his political enemies and to win influence with the people.Footnote ⁷³ When he enters, the Paphlagonian slave, who is a parody of Cleon, charges his two fellow slaves with treason and conspiracy (Ar. Eq. 235–9). He boasts to the judges in the courts that he keeps them busy with cases so they can receive their three obols a day (Ar. Eq. 255–7). The chorus say that he extorts money from officials who have not yet passed their audits, who are ripe for exploiting (Ar. Eq. 257–63). He makes one charge after another: an endeixis for smuggling equipment to the Spartans (Ar. Eq. 278–9: ἐνδείκνυμι), a phasis before the Prytaneis for failure to pay tax (Ar. Eq. 300–2),Footnote ⁷⁴ a denunciation of plotting with the enemy to the Council (Ar. Eq. 475–9, 626–9) and attacks on officials during their audits (euthynai) (Ar. Eq. 824–6). Just as Cleon charges his opponents with bribery (3.38.2: κέρδει ἐπαιρόμενος; 3.42.3; 3.43.1; cf. Lys. 21.19: ὑπὸ κέρδους ἐπαρθῆναι – charge of bribery), the Paphlagonian threatens four charges of bribery, each with a penalty of a hundred talents (Ar. Eq. 442–3).Footnote ⁷⁵ The chorus complains how he fills the courts with his criminal charges (graphai) (Ar. Eq. 304–10). In the Wasps Aristophanes portrays Cleon and his supporters in a similar way.Footnote ⁷⁶ The chorus of Wasps suspects treason in Thrace (Ar. Vesp. 288–9, 475), conspiracy (344–5) and tyranny (417, 470, 474–6, 487; cf. 488–502). The chorus says that Cleon has ordered them to report for service in the courts with three days' worth of rage, the emotion prosecutors try to arouse (242–4), and they several times talk about their anger (277–80, 403, 406, 424–5, 454–5).

Unlike other politicians before him, Cleon exploited the weaknesses of the courts for political advantage.Footnote ⁷⁷ When he spoke in the Assembly, he used the same methods of intimidation he employed in the courts. This breakdown of the separation between the deliberative sphere (the Assembly) and the judicial sphere (the courts), which Diodotus so perceptively criticizes, was a dangerous development in the history of Athenian democracy and contributed to the defeat of Athens in the Peloponnesian War.Footnote ⁷⁸ But that is the subject of another essay.