The Reconciliation Agreement of 403/402 B. C. in Athens: Its Content and Application 3515048324, 9783515048323

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HERMES ZEITSCHRIFT FÜR KLASSISCHE PHILOLOGIE

EINZELSCHRIFTEN · HEFT 53

THOMAS CLARK LOENING

THE RECONCILIATION AGREEMENT OF 403/402 B.C. IN ATHENS ITS CONTENT AND APPLICATION

FRANZ STEINER VERLAG WIESBADEN GMBH STUTTGART

THOMAS CLARK LOENING

THE RECONCILIATION AGREEMENT OF 403/402 B.C. INATHENS

HERMES ZEITSCHRIFT FÜR KLASSISCHE PHILOLOGIE

EINZELSCHRIFTEN HERAUSGEGEBEN VON

JÜRGEN BLÄNSDORF JOCHEN BLEICKEN WOLFGANG KULLMANN

HEFT 53

FRANZ STEINER VERLAG WIESBADEN GMBH STUTTGART 1987

THOMAS CLARK LOENING

THE RECONCILIATION OF 403/402

AGREEMENT

B.C. IN ATHENS

ITS CONTENT ANDAPPLICATION

FRANZ STEINER VERLAG WIESBADEN GMBH STUTTGART 1987

CIP-Kurztitelaufnahme der Deutschen Bibliothek

Loening, Thomas Clark: agreement of 403, 402 B.C. in Athens: ists content andapplication / Thomas Clark Loening. –Stuttgart: Steiner-Verl.-Wiesbaden-GmbH, 1987.

Thereconciliation

(Hermes: Einzelschriften; H.53)

4 04832– 515– ISBN 3–

NE: Hermes / Einzelschriften Jede Verwertung desWerkes außerhalb derGrenzen desUrheberrechtsgesetzes ist unzulässig undstrafbar. Dies gilt insbesondere für Übersetzung, Nachdruck, Mikroverfilmung oder vergleichbare Verfahren sowie für die Speicherung in Datenverarbeitungsanlagen. © 1987 by Franz Steiner Verlag Wiesbaden GmbH, Sitz Stuttgart. Printed in the Fed. Rep. of Germany

To my Grandmothers

CONTENTS Preface Abbreviations Introduction

9 11 13

I. The Reconciliation Agreement 1. Sources for the reconciliation agreement 2. Terminology of the reconciliation agreement 3. Date of the reconciliation agreement 4. Unity of the reconciliation agreement 5. Status of the reconciliation agreement 6. Reconstruction of the reconciliation agreement

19 19 20 21 23 28 30

II. The Application of the Reconciliation Agreement 1. Eleusinian autonomy andthe property rights of the émigrés 2. Registration for emigration 3. Homicide trials 4. Repayment of wardebts 5. Confiscated property

59 59 68 69 85 88

III. The Application of the Amnesty Provision 1. Eligibility to receive amnesty 2. The amnesty and the political rights of the Three Thousand 3. The amnesty andthe cavalry 4. The courts after the restoration of the democracy 5. The amnesty vis-à-vis the events of 404/403 B.C. 6. The amnesty vis-à-vis events prior to the oligarchy

99 100 101 117 120 121 130

Summary Appendix Bibliography Indices

147

151 155 159

PREFACE

This study represents a revision of my doctoral dissertation. My curiosity in this subject wasfirst piqued while I prepared Lysias for my special author examination. Upon delving into it further, I discovered that there was much confusion surrounding the reconciliation agreement. For instance, it is often cited only by its most celebrated provision, the amnesty. It became apparent to me that the interpretation of the treaty and of its success or failure was often influenced by the prejudices which scholars brought to it, sometimes to the detriment of the ancient sources and an understanding of Attic law. What I have attempted to do, although not ignoring; the historical context, is to apply a philological and legal approach. My conclusions are in many cases at variance with previous interpretations, but I hope that they shed light upon this pivotal event in Athenian history. In the course of this study, several semantic difficulties arose in referring to the different groups affected by the reconciliation agreement. The adjective “Eleusinian” , for example, wasmeaningless without a specific context. Should it refer to the pre-oligarchy inhabitants or the oligarchic settlers? I have tried to resolve all ambiguities, occasionally sacrificing elegance in favor of laborious periphrases for the sake of clarity. By oligarchs I mean the officials of the oligarchy. The Three Thousand are also called the men of the City or the City Party. The democratic opposition is variously described as the men of the Piraeus, the Piraeus Party, or merely as the exiles within a clearly identifiable context. The oligarchic settlers in Eleusis are always characterized as the émigrés or emigrants. All translations, unless otherwise indicated, are my own. For the most part abbreviations of ancient authors and their works come from the LSJ and OLD. In referring to Greek names, I have discovered no way to be perfectly consistent, but I have adopted the following principles. Latinized forms of all authors’ names are used since they are the more familiar. I have transliterated the names of all historical persons (with the exception of Andocides and Thucydides who are mentioned as authors and historical figures) and place names, save the most common whose spelling would otherwise appear strange. My thanks, above all, to Stephen Tracy andJune Allison; to Charles Fornara, Alan Boegehold, John Marincola, Kurt Raaflaub, andWilliam Wyatt for their criticism and advice. I amindebted to mymany friends who encouraged and supported me. Finally, I wish to acknowledge my parents, Helen and Kurt Loening, for their unflagging patience. August 1984

Thomas Clark Loening

ABBREVIATIONS

Lipsius, AttRecht

American Journal of Archaeology American Journal of Philology Archiv fürPapyrusforschung undverwandte Gebiete All references to Aristotle are to the Ἀ η θ ν α ίω νΠ ο λ ιτ ε ίαunless otherwise indicated Mitteilungen des deutschen Archäologischen Instituts (Athenische Abteilung) Annual of theBritish School at Athens Cambridge Ancient History P. Cloché, La restauration démocratique à Athènes en 403 avant J.-C. (Paris 1915) Classical Philology Classical Review A. Dorjahn, Political Forgiveness in Old Athens: The Amnesty of 403 B.C. (Evanston 1946) F. Jacoby, Die Fragmente der griechischen Historiker (Berlin and ) Leiden 1923– H. Frohberger and T. Thalheim, Ausgewählte Reden des Lysias, I, II, (Leipzig 1892, 1895) XXXV et L. Gernet and M. Bizos, Lysias: discours I–XV, XVI– fragments (Paris repr. 1967) A. R. W. Harrison, The Law of Athens, I, II, (Oxford 1968, 1971) Inscriptiones Graecae Journal of Egyptian Archaeology Journal of Hellenic Studies F. G. Kenyon, Aristotle: Constitution of Athens3 (Oxford 1892) M. A. Levi, Commento storico alla Respublica Atheniensium di Aristotele (Milan 1968) J. H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig

Nep.

All references to Nepos are to the Vita Thrasybuli

AJA AJP ArchP Arist.

AthMitt

BSA CAH Cloché, LaRest

CP CR Dorjahn, Forgiveness

FGrH Frohberger-Thalheim, AusRed Gernet-Bizos, LysDis Harrison, LOA

IG JEA

JHS Kenyon, ConstAth Levi, ComAr

PA

Pap. Rainer PHib POxy

PQ PRyl

Rauchenstein-Fuhr,

ARLys

RE REA REG RhM

Ρ Α Rhodes, Α

RIDA

1905)

unless otherwise noted J. Kirchner, Prosopographia Attica (Berlin repr. 1966) Mitteilungen aus der Papyrussammlung der Österreichischen Nationalbibliothek in Wien (Papyrus Erzherzog Rainer), N.S. (Vienna

1932–)

The Hibeh Papyri (London 1906–)

Oxyrhynchus Papyri (London 1898– ) Philological Quarterly Catalogue of the Greek Papyri in the John Rylands Library (Man) chester 1911– R. Rauchenstein and K. Fuhr, Ausgewählte Reden des Lysias, I, II, (Berlin 1897, 1899) Real-Encyclopädie der klassischen Altertumswissenschaft Revue desétudes anciennes Revue desétudes grecques Rheinisches Museum für Philologie P. J. Rhodes, A Commentary on the Aristotelian Athenaion Poli-

teia (Oxford 1981) Revue internationale

desdroits del’antiquité

12 RivStorAnt Sandys, CAth TAPA

WS

X.

Abbreviations

Rivista storica dell’Antichità J. E. Sandys, Aristotle’s Constitution of Athens2 (London 1912) Transactions of theAmerican Philological Association Wiener Studien All references to Xenophon are to the Hellenika unless otherwise noted

INTRODUCTION

85) presents a detailed account of the CorThucydides (III.82– cyrean revolution in order to exemplify the horrors of civil war. It is indeed a grim and pessimistic portrait of human nature: lust for power, self-destructive intransigence, and a hopeless cycle of violence. Yet the Athenian experience belied this paradigm. In contrast to the seemingly endless savagery of the Corcyrean conflict, the civil warin Athens which had been occasioned by the despotic rule of the Thirty was brought to a peaceful conclusion. Each side was able to set aside their differences and reconcile. Much of the credit for the successful termination of hostilities and the orderly restoration of the democracy may be attributed to the agreement which hadbeen negotiated. The negotiations were conducted trilaterally by the democratic exiles, by the City Party, and by the Spartan king Pausanias. In order to understand how this treaty came about, a brief examination of the position of each of the negotiating parties is necessary.1 The democratic exiles, when they were initially driven out of Athens having suffered terribly at the hands of the oligarchs, were determined to take vengeance on the perpetrators of these injustices.2 After the Thirty had been deposed, the men of the Piraeus became more adventurous, emboldened by the lack of harmony among the Three Thousand. They began to make forays outside the Piraeus andeven attacked the walls of the City. When reinforcements from Sparta had arrived and the Piraeus had been blockaded once again, the fortunes of the exiles began to decline.3 After a chance encounter in the Piraeus with Lacedaemonian troops resulted in a larger battle, the exiles were compelled to retreat;4 they must have perceived at that time that it wasnot possible to return to the City by force if the men of the City had the active support of Sparta. Furthermore, the democrats could not depend upon the intervention of an outside power to assist them openly. The Boeotians among others tacitly supported them by allowing Thrasyboulos to seize Phyle from their territory.5 Nor did they molest Athenian exiles within their borders though it was contrary 1 For a detailed analysis of the events prior to the treaty of reconciliation, see: Cloché, LaRest 239; P. Krentz, The Thirty at Athens, (Ithaca 1982) 89–101. 162– 2 Lys. XXV.22. 3 X. II.4.25–29. Cf. Isoc. XVI.13; XVIII.49. 4 X. II.4.31–34. 5 Din. I.25. D.S. XIV.32.1. Paus. IV.11.6. Plu. Lys 27.4; Pel 7.2. X. II.4.2.

14

Introduction

to the Spartan edict.6 The only reasonable hope of restoration for the exiles wascompromise and accommodation with the City Party. The Ten of the City succeeded the Thirty with a mandate to conclude a just peace with Thrasyboulos and his followers. Instead they preferred to carry on the war and to seek aid from Sparta.7 In response to their plea for help, Lysander and his brother Libys came with a land and naval force.8 Although Lysander’s arrival did bring a renewed sense of security to the men of the City,9 they still had cause to be worried. Lysander had participated in the establishment of the Thirty and had supported them throughout their reign.10 Might he not want to restore the oligarchs to power? Several of his actions pointed in that direction. The Thirty, nowin Eleusis, had also sent to Sparta for aid,11 and Lysander had collected his Peloponnesian troops in Eleusis.12 The City Party had overthrown the Thirty, and their return to power would not be welcome. The citizens who remained in the City, displeased with the behavior of the original Board of Ten, selected another Board of Ten who were more committed to making peace with the exiles. The Second Ten, even before the arrival of Pausanias, tried to negotiate with the men of the Piraeus.13 It must have been evident to the men of the City that if they were to reach an equitable settlement with the Piraeus, an outside arbiter wasnecessary who, unlike Lysander, was not strongly associated with the oligarchs and who was not partial to the democrats, since they had reason to be wary of both the oligarchs andthe exiles. The ancient authors agree that the adoption of the reconciliation agreement was in large measure attributable to the efforts of Pausanias.14 He persuaded three of the Spartan ephors to authorize an ex6 The decree instructed the cities of Greece to return all Athenian exiles to the Thirty; if they should fail to do so, they were subject to a fine of five talents (D.S. XIV.6.1– 2, Plu. Lys 27.2). The Boeotians passed three measures in order to protect the refugees. Every Boeotian city was open to Athenians in distress (Plu. Lys 27.3). The Boeotians would turn a blind eye to any armed Athenian marching through their land (Din. I.25, Plu. Lys 27.3). Any Boeotian who allowed an Athenian exile to be arrested without giving aid was liable to a fine (D.S. XIV.6.3, Plu. Lys 27.3). Both Plutarch (Lys 27.4) and Justin (V.9.8) suggest that the activities of Thebes might be more properly described as covert rather than passive. Plutarch reports that in addition to secrecy anda base of operations, the Boeotians provided arms and money. Justin says that Ismenias supplied men to the exiles privately since he

could not do so publicly. 7 For a discussion of the Ten of the City, infra 42–46. 8 D.S. XIV.33.5–6. Lys. XII.59–60. Plu. Lys 21.2. X. II.4.28–29.

II.4.29. 10 Arist. 34.3. D.S. XIV.3.6. Lys. XII.74. Paus. III.5.1. Plu. Lys 15.5. 11 X. II.4.28. X. II.4.29. 13 Arist. 38.3. 14 Arist. 38.4. D.S. XIV.33.6. Justin V.10.7. Nep. III.1. Plu. Lys 21.3–4. X. II.4.38. 9

12

X.

Introduction

15

pedition to Athens with himself at its head. The Boeotians and the Corinthians refused to take part on the grounds that Athens had not broken the peace treaty and that their participation would violate their oaths. In reality they feared that Sparta would expropriate Athens as its own.15 Pausanias, upon reaching Athens, commanded the exiles to disband and return to their homes, an order which he could not have expected them to obey without assurances concerning their future safety. He feigned hostile activity toward them so that they would not be aware that he was not ill-disposed to them.16 After the battle with the democrats in the Piraeus, Pausanias used this opportunity to attempt a reconciliation between the opposing parties. He secretly instructed the men of the Piraeus to dispatch ambassadors to him and the two ephors who had accompanied him and even coached them on what proposals to make. Pausanias also asked the men of the City to approach him and the ephors andto state their desire for reconciliation and their promise that a reunited Athens would remain an ally of Sparta. Some men from the City Party as private citizens were sent to Sparta, while the authorities in the City also dispatched an embassy offering to surrender to Sparta and demanded that the exiles do likewise.17 The ephors and the Assembly, after hearing the various representatives of the different factions in Athens, sent arbitrators to help Pausanias in effecting a reconciliation.18 The mission of Pausanias is characterized as motivated by jealousy of Lysander.19 It is said to have been designed to stop Lysander, though it had been proposed to oppose the democrats or prop up the government in Athens.20 Diodorus (XIV.33.6) reports that Sparta’s ill-repute among the Greeks for supporting oligarchies also influenced the actions of Pausanias.21 There existed, no doubt, a certain amount of jealousy and distrust directed towards Lysander by the Spartan 15 X. II.4.29–30. Cf. Lys. XII.60. Justin (V.10.12–13) suggests another reason why Corinth and Thebes refused to participate. They were angry that Sparta hadwithheld from them their share of the spoils from the Peleponnesian War. The Lacedaemonians for their part thought that the Theban demands were excessive (Plu. Lys 27.2). Eight years later, Theban ambassadors, seeking aid from the Athenians, reminded them of their refusal to collaborate with the Spartans in this expedition (X. III.5.8–10). 16 X. II.4.31. 17 X. II.4.35–38. 18 Arist. 38.4. X. II.4.38. The former mentions ten arbitrators, the latter fifteen. 19 D.S. XIV.33.6. Plu. Lys 21.3. X. II.4.29. 20 Plu. Lys 21.3. Pausanias (III.5.1) gives a different account. King Pausanias was sent on the pretext of putting Thrasyboulos down, but in reality intended to reestablish the tyranny of those mento whom Lysander hadgiven over the Athenian government. 21 Justin (V.10.7) declares that Pausanias, moved by pity for the exiles, brought about the reconciliation. This report is likely to derive ultimately from Lysias XVIII (10–12, 22) where the speaker claims that the plight of Diognetos and his family during the oligarchy aroused the sympathy of Pausanias.

16

Introduction

kings since he hadbeen the hero of the latter part of the Peloponnesian War, defeated the Athenians at Aigospotamoi, and had induced them to capitulate. Lysander’s growing power and prestige could not have been viewed at home without suspicion.22 The refusal of Thebes and Corinth to join Pausanias’ expedition makes clear that Sparta’s reputation had suffered and that the Lacedaemonians did not enjoy the unanimous approval of their allies. Spartan intervention in Athens on the pretext of the civil war could not have been very agreeable to the Boeotians since Athens served as a comfortable buffer zone for them against Sparta. The presence of Lacedaemonian troops on a large scale in Athens would have removed that protection. The quickest and most effective way to neutralize the influence of Lysander and to appease the disgruntled Spartan allies was to stabilize the situation in Athens by bringing the civil war to a close. Pausanias had to act with discretion in order not to offend Lysander openly nor to appear to favor either side in the conflict. He must have suspected that Lysander desired to restore the oligarchs in Eleusis to their former position in Athens. Such a move would have accomplished nothing and would have been resisted not only by the democrats but also by the Three Thousand who had deposed the Thirty. To allay the apprehension of the Spartan allies, Pausanias had to make sure that the disputants themselves agreed to a treaty of reconciliation and that it was equitable to both sides. Furthermore, it could not appear to have been imposed by Sparta; nor could it rely upon a Spartan military presence for enforcement. Any conflict arising from the treaty might invite interference from Lysander or an outside power.23 The battle in the Piraeus had demonstrated to the exiles that Pausanias would employ force, if necessary, to bring about peace. To the City Party he offered no hope of victory over the democrats, but encouraged them to make peace. Pausanias seems to deserve the praise which the ancient authors awarded him for ending the Athenian civil war in a peaceful andjust manner. The purpose of this study is to explore in detail the content and application of the reconciliation agreement. The first chapter will be 22 For a discussion of the internal situation at Sparta at this time, see: C. D. Hamilton, “Spar, AJP 91 (1970) 294–314; W. Thompson, “Obsertan Politics and Policy, 405–401 B.C.” vations on Spartan Politics” , RivStorAnt 3 (1973) 47–58. 23 At the conclusion of the Peloponnesian War, Thebes and Corinth most strongly advocated the destruction of Athens (X. II.2.19–20). Polyaenus (1.45.5) states that Lysander suggested that Athens should be held by tyrants rather than be demolished since Thebes was nearby and growing stronger. According to Lysias (XII.58), Pheidon, in requesting aid, argued that unless Sparta intervened, Athens would fall into Boeotian hands. It seems as early as the capitulation of Athens, Sparta was distrustful of Theban intentions towards Athens.

Introduction

17

to an examination of the problems surrounding the treaty and to a reconstruction of it, insofar as it is possible, from the ancient sources. Each provision will be analyzed in the hope of discovering its precise meaning. Then the application and interpretation of the reconciliation treaty under the restored democracy will be discussed in the second chapter. A separate chapter is reserved for the investigation of the application and interpretation of the amnesty provision. This study is deliberately confined to the reconciliation agreement and is in no way intended to be an all-encompassing history of Athens at the end of the fifth and the beginning of the fourth centuries B.C. Many topics of related interest, e.g., political cross-currents in Athens, its financial plight, and its changed position in the Hellenic world, although reference is occasionally made to them, are largely ignored as being outside the immediate scope of this project. Although the restoration of the democracy, the reconciliation agreement in particular, was among the most significant events in Athenian history, it has not received due attention. Critics have been and continue to be far more interested in the reign of the Thirty. The general histories often do not comment critically upon the return of the democracy, but merely assemble a continuous narrative from the ancient sources. Several German scholars in the nineteenth century wrote extensively on the reconciliation treaty; however, the discovery of the Ath.Pol. which supplies a historical narrative of the period and is the main source for the text of the reconciliation agreement has rendered the works of Grosser, Luebbert, and Stahl largely obsolete. Since the publication of theAth. Pol., twomajor studies have appeared; but the works of Cloché and Dorjahn are flawed by untenable presuppositions and a simplistic treatment of the material. The commentators on Aristotle and Lysias often offer valuable insights on specific passages, but of course do not provide a comprehensive picture of what happened. A newretrospective of the reconciliation agreement and the restoration of the democracy which looks afresh at all the evidence and which especially takes into account the epigraphical and papyrological discoveries of the twentieth century is long overdue. devoted

Chapter I

THE RECONCILIATION AGREEMENT

In the initial part of this chapter, the problems associated with the reconciliation agreement in general will be taken up; questions concerning its sources, terminology, date, unity, and status will be discussed. The latter portion will contain a reconstruction of the treaty, insofar as it is possible, from the ancient sources anda detailed examination of its individual clauses.

1. Sources for the Reconciliation Agreement

No ancient author reports in full the treaty of reconciliation between the men of the City and the men of the Piraeus, andoften the sources seem contradictory or incompatible. There aresixextant historical narratives which describe the restoration of the democracy, varying in 6) gives length and the amount of detail preserved. Aristotle (39.1– the most detailed account of the agreement and the measures of Archinos intended to enforce it (40.1–2). Furthermore, he provides the archon date for both the restoration of the democracy (39.1) and the fall of Eleusis (40.3). The other major version of the treaty comes from Xenophon (II.4.38–39). Fewer particulars are presented, but he includes information which Aristotle does not. His chronology of 6) events is less precise and lacks specific dates. Diodorus (XIV.33.5– pays scant attention to the terms of reconciliation and mentions specifically only the right to emigrate to Eleusis. Seemingly he has misdated the return of the exiles to 401/400 B. C. The Life to Thrasyboulos (III) by Nepos contains a sketchy account of the restoration, but reports the important clauses of the agreement. Justin (V.10) has little to say about the treaty itself though the amnesty is mentioned. Both Nepos andJustin impart information which is unattested by other authors and offer no help in resolving chronological problems. Orosius (II. 17.13–16) merely reports the amnesty provision, but ascribes it to the period following the fall of Eleusis. Of the orators, Lysias in the Against Hippotherses (lines 38–48)1 indicates that in the agreement there were provisions which dealt with the confiscated property 1 Gernet-Bizos, LysDis, II, frg. I (= POxy, XIII, no. 1606, frgs. 1–6), lines 38–48.

20

I. TheReconciliation

Agreement

of the exiles. Isocrates (XVIII.20) relates a provision which purports to refer specifically to informers and bears witness to a law promulgated by Archinos (XVIII.2– 3) which wasdesigned to protect the men of the City in the courts from unjust treatment at the hands of the victorious democrats. A portion of the oaths which were sworn in order to insure adherence to the agreement is quoted by Andocides (I.90). Plutarch (Moralia 349F) names the exact date on which Thrasyboulos and his followers marched back into Athens and states that it was still being celebrated in his ownera. The treaty of reconciliation or the amnesty in particular were often cited in antiquity as a model of reason and political enlightenment. The references are far too frequent to enumerate and will be discussed only as the occasion demands. Not extant are the accounts of the restoration of the democracy written by Androtion, Philochorus, and Theopompus which certainly contained descriptions of the reconciliation treaty.2 2. Terminology of the Reconciliation Agreement All too often scholars refer to the treaty of reconciliation by its most remarkable feature, the amnesty. It, however, asAristotle attests, is only one of the provisions of the treaty. From the outset it will be useful to define the terms which are applied to this agreement. ηto indiν ή Both Xenophon (II.4.38) and Aristotle (38.4) use ε ἰρ cate merely the cessation of active hostilities between the two parties. The reconciliation in general and more precisely the treaty of reconciliation are referred to by two terms which seem to be synonymous: δια γ α ί/δ λ . There is a tendency λ α λ ω ύ ια λ /δ λ ύ λ ά σ ε ια σ σ ις ωand δια among the major sources to prefer one term to the other. For instance, δια γ α λ ί/δ λ α σ ωare found exclusively in Lysias,3 whereas λ ά σ ια λ δ ια λ ύ σ εις/δ ωoccur in Aristotle.4 There appears to be no appreλ ια ύ ciable difference in meaning; both terms connote a change from one state to another and specifically from ill-feeling to rapprochement. ῆ κ α ι (always plural) are the collective term for the proviθ ν The σ υ sions of the δια λ ύ σ ε ις ἱ δια λ σ ύ ιςas Aristotle (39.1) makes clear: ... α ε κ α ῆ ιare often ςτά σ ή δ κ α ε . In the testimonia the συνθ ςσυνθ ὰτ α τ ὰ ... κ μ έν .5 The ειν ρ κ ο ιas the objects of the verb ἐμ accompanied by the ὅ ρ κ ο ιare the oaths which each side swore when they agreed to abide ὅ 2 Androtion, no. 324, frgs. 10–11, FGrH III B. Philochorus, no. 328, frgs. 143, 181, FGrH III B. Theopompus, no. 115, frgs. 5, 120, 155, FGrH II B. 3 VI.39; XII.53, 58, 60; XIII.80. 4 38.4, 39.1, 40.1, 40.4. , Arist. 40.2 and X. II.4.43. α ις ή κ 5 Isoc. XVIII.67, 68. Lys. XXV.23, 28, 34. Without συνθ

I. TheReconciliation

Agreement

21

υ ν ῖςσ by the terms of the reconciliation agreement. The phrase, τα μ έν ή ε κ ρκ α α θ ο ιν ιςἐμ ιςκ ὶ το ῖςὅ , appears to be a formula and may in fact represent part of the actual wording of the oaths. η σ ν ιὴμ The act of amnesty itself is described by the expression μ η ν σ κ α ε ῖν κ .6 Liddell-Scott-Jones define μ ικ α κ έ ωas “bearing malice” , , or with a negative “passing an act of “remembering past wrongs” η σ τ ν μ ίαmeaning an act of political forgive.7 The word ἀ amnesty” ness8 is only found in much later authors andin regard to this treaty, is used by Valerius Maximus (IV, 1, ext. 4) who equates it with an oblivio9 and by Plutarch (Moralia 814B; Cic. 42.2).

3. The Date of the Reconciliation

Agreement

Aristotle states that the restoration of the democracy occurred in the archonship of Eukleides 403/402 B.C. (39.1), and there is ample testimony from other ancient sources to support his assertion.10 In a later passage vexed perhaps by textual difficulties, Aristotle (41.1) appears to indicate that Thrasyboulos and the democrats reestablished the ancestral constitution in the archonship of Pythodoros 404/ 403 B.C. How can this conflict be resolved? Without giving a specific date, Xenophon (II.4.38–39), Nepos (III), and Justin (V.10) do not contradict Aristotle since they place the reconciliation before the fall of Eleusis. Diodorus (XIV.32–34) alone seemingly dates the restoration to 401/400 B.C. M. Levi11 asserts that Aristotle dates the return of the democracy from the seizure of Phyle by Thrasyboulos and his supporters; however, Aristotle states unequivocally that he is referring to the democratic constitution, not to the resurgence of the democratic party. Plutarch (Moralia 349F) may provide the clue to the resolution of this problem. He relates how, even in his own time, the return of the exiles was still being celebrated by sacrifices and gives a precise date for the event (12 Boedromion). This date falls in the early autumn, in the third month of the archontic year. Obviously, this date cannot refer to the archonship of Pythodoros since that identification would place the reconciliation in the early months of 6 E.g., And. I.90, Arist. 39.6, Isoc. XVIII.3, X. II.4.43. Lysias uses μ σ η ικ α κ ε ῖνtwice (XVIII. ν 19; XXX.9) although it is not accompanied in either case by a negative. It is indeed curious that he does not allude specifically to the amnesty in the Against Eratosthenes and the Against Agoratos, the two speeches which focus most on this period. η σ ν ι κα κ 7 A Greek-English Lexicon, (Oxford repr. 1968), s.v. μ έ ω . η σ τία ν μ . σ έ η τ ω ,ἀ 8 Liddell-Scott-Jones, s.v. ἀ ν μ 9 Nepos (III.2) also uses the term oblivio. 10 E.g., Aeschin. I.39. And. I.87, 88, 89, 93, 94, 99. D. XXIV.42, 133, 134. 11 ComAr, II, 349–350.

22

I. The Reconciliation Agreement

the reign of the Thirty, but must allude to the next year, the archon­ ship of Eukleides. Kaibel12 postulates that Aristotle is explaining in this passage that Pythodoros was still in office for the first months of the new year though his name was later deleted from the list of epony­ mous archons.13 In light of the remark of Plutarch, it does not seem at all implausible that Pythodoros retained his office until the demo­ crats returned. The course of events may be reconstructed in this man­ ner. In the beginning of the autumn of 403/402 B.C., Thrasyboulos and his followers came back from the Piraeus; but because of the chaos caused by the departure of the Thirty and their satellites and the ensuing siege of the City by the exiles, Pythodoros remained in office beyond its legal termination. Whether he actively performed his duties during this period or his name was merely used for official purposes cannot of course be determined. There is ample evidence to suggest that immediately after the exiles were restored, no government built upon the old democratic model yet existed. According to Andocides (I.81– 82), a provisional government of twenty men was set up until the laws were reestablished. Some sources suggest that Thrasyboulos’ citizenship proposal was declared illegal on the basis of its being ἀπρο­ βούλευτον because no Council had yet been constituted.14 Further­ more, as the proposal of Phormisios attests, there was no consensus in the City upon what form the democracy should take; some desired to limit the number of people eligible to participate. Xenophon (II. 4.43) does not offer any help in deciding precisely when the magi­ strates of the democracy were appointed since he merely places their installation posterior to the speech of Thrasyboulos to the first assem­ bly after the return of the exiles. Under the circumstances it seems likely that Eukleides assumed office when the constitutional questions had been settled and the democratic government was in the process of being set up again. Though he took office at least two and a half months after the archontic year began, officially he became the epony­ mous archon for the whole year.l5 Therefore, the treaty of reconcilia­ tion was technically concluded in his archonship.16 12 Stil und Text der “Π λ ιτεία Ἀ θ η να ίω ν” des Aristoteles, (Berlin 1893) 200– 201. 13 Cf. D. Hereward, “New Fragments of IG II2 , 10” , BSA 47 (1952) 112– 113; A. E. Raubi­ tschek, “The Heroes of Phyle”, Hesperia 10 (1941) 286; and H. von Prott, “ Das Psephisma des Archinus” , A th M itt 25 (1900) 3 7 -3 8 . These scholars wish to retain Pythodoros as archon for a period beyond the restoration of the democracy. 14 Plu. Moralia 835F. sch. Planudea ad Hermog. V, 343, ed. Walz. Phot. Bibl codex 262. PO xy, XV, no. 1800, frgs. 4 – 7, lines 3 – 10. 15 Rhodes, A A P 462– 463. 16 One other possibility exists. Among the Thirty, Xenophon (II.3.2) lists a Eukleides about whom nothing more is known. Could the oligarch and the eponymous archon of 403/402 B.C. be the same individual? One would have to postulate further that Eukeides came into

I. The Reconciliation

Agreement

4. The Unity of the Reconciliation

23

Agreement

Cloché proposes that there were two distinct agreements: a peace 39) and the treaty treaty whose substance Xenophon relates (II.4.38– of reconciliation which Aristotle gives in detail (39.1–6).17 His arguments are based on a passage of the Ath. Pol. which seems to imply separate agreements and on the incongruous accounts of Aristotle and Xenophon concerning the terms upon which the democracy was restored. An examination of these passages will reveal that although their versions cannot be harmonized entirely, there was in fact only one agreement which provided for an armistice and established the guidelines by which relations among the oligarchs in Eleusis, the City Party, andthe victorious democrats were to be regulated in the future. Aristotle (38.4) describes Pausanias as having brought peace and γ η ν γ νκ ετ α α ὴ νεἰρή ὶτ ςδιαλύσ ρἤ ὰ ε ις ὰ ςγ ρ α reconciliation: ε π ὶπ έ ς . From this Cloché deduces that Aristotle is referring to ν ία σ α α υ Π different agreements. Xenophon does not draw such a distinction, but ηand the avoidance of the term δια ε σ ις ύ ί/δ α λ ν γ ια his use of εἰρ ή α λ λ would seemingly support this theory. Upon closer inspection of Xenophon, however, this semantic problem can be overcome. Throughout his narrative of the restoration, Xenophon uses δια ύ ω ω λ σ σ , ά ια λ λ /δ the regular words connoting reconciliation, in preference to their nominal forms. He introduces his account of the agreement with the phrase, διή λ λ φ α ξ α νἐ τ ε ; and in the preceding sentence the same ᾽ᾧ word is found again. If there were two distinct agreements, it cannot σ ω σ ά λ / λ be proven semantically in view of the regular meaning of δια δια λ ύ ω asregards the restoration of the democracy. The return of the exiles was made under the following conditions according to Xenophon: mutual peace, the right for any individual to return to his own property with the exception of the Thirty, the Eleven, and the Ten of the Piraeus, and the right to emigrate to Eleusis for anyone who feared for his personal safety. At this point, unlike Aristotle, he makes no mention of the amnesty provision. Aristotle passes over in silence the clause which allows individuals to return to office at the beginning of the archontic year 403/402 B.C. andwasreplaced once thedemocrats appointed magistrates, but the democracy retained himaseponym for thewhole year. Though Lysias (XII.54) attests that Pheidon and Eratosthenes remained in the City after the overthrow of the tyrants, it does not seem probable that many other members of the oligarchy stayed andserved in a lesser capacity in the government of the Ten of the City. It is open to doubt whether the restored democracy would continue to use the name of Eukleides aseponym, when in its opinion he was selected under an illegal constitution and in view of the fact that Pythodoros’ archonship became known as the year of anarchy. Kirchner (PA, I, 368) considers them separately (nos. 5674, 5680). Furthermore, this identification would increase rather than explain the discrepancy in Aristotle’s chronology.

17 LaRest 239–244.

24

I. TheReconciliation Agreement

their property; but it is not surprising, since he does not preserve the reconciliation treaty in full and chooses to concentrate primarily on those provisions which govern relations between the settlers in Eleusis ςrather than those which refer to the menwhoremained ο μ ῆ and the Δ in the City and the men of the Piraeus.18 Xenophon does not include the Ten of the City among those barred from returning to their property. Aristotle, in contrast, counts them among those excepted from the amnesty provision. Furthermore, Aristotle’s restriction is conditional upon the submission of accounts, whereas Xenophon appends no such proviso when he mentions the amnesty after the fall of Eleusis (II.4.43). An appeal to the other sources is indecisive. Justin (V.10.4) relates that Pausanias compelled the Ten of the City to emigrate to Eleusis to join the other oligarchs, but his testimony is vitiated by the fact that no other source corroborates the exile of the Ten of the City. Nepos (III.1) specifies that the Thirty and the Ten of the City were excluded from the agreement; but he, like Justin, fails to name the Eleven and the Ten of the Piraeus and does not mention whether this exclusion is conditional or not.19 Several reasons have been put forward to account for Xenophon’s failure to include the Ten of the City among those barred from taking advantage of the agreement. Xenophon does portray them more sympathetically than Lysias, not as the ruthless continuation of the oligarchy. Therefore, he only mentions the leaders of the original regime –the Thirty, the Eleven, and the Ten of the Piraeus. Some scholars impute a faulty memory to Xenophon.20 Writing later, he may have become confused and thought that the Ten of the City were not excluded from the treaty, since many of them had passed their accounts as Aristotle (38.4) and Isocrates attest (XVIII.8). No anomaly appears to exist if one bears in mind that Xenophon’s restriction does not apply to the treaty in general, but specifically to the right to return to one’s property. Thus, it is likely that this provision was not applicable to the Ten of the City, since they were presumably living in Athens when they were nego-

18 For instance, Aristotle avoids altogether the provisions concerning the return of property confiscated by the oligarchy. 19 Nepos mentions the amnesty separately and describes it as a law passed by Thrasyboulos after the restoration.

20 Dorjahn (Forgiveness 15) argues that the failure of Xenophon to mention a second Board of Ten led to his omission of the first Board of Ten from the groups excluded by this pro-

vision. Kenyon (ConstAth 125) and Sandys (CAth 153) claim that Xenophon has conflated Nachträgliches über athenische Amthe Ten of the City with theTenof thePiraeus. Stahl (“ , RhM46 [1891] 485) believes that the second Board of Ten hadnot yet nestiebeschlüsse” been installed by the conclusion of the agreement. It does seem difficult, however, to η σ α κ ικ ε ῖν . ν ὴμ νwith μ ῶ τ υ ὲα ὰ ὶτ ιἐπ α ν ιέ π equate ἀ

I. The Reconciliation

Agreement

25

tiating the reconciliation.21 If they felt endangered in the City, they could emigrate to Eleusis. Xenophon’s omission of the proviso concerning the rendering of accounts in his description of the amnesty is characteristic of hisindifference to meticulous detail andlegalities. The inconsistencies between Aristotle and Xenophon seem less severe, if their aims and compositional techniques are taken into consideration. Xenophon’s purpose is not to give a full history complete with documents, but to write an historical narrative describing the course of events without lingering over minute details.22 In his account of the restoration, he has communicated the essential facts which motivate the end of the episode: peace, the exiles’ return to their property, and the emigration to Eleusis. Xenophon has withheld the amnesty provision until the fall of Eleusis. It was the most appropriate occasion to relate this act of generosity on the part of the Δ ς μ ο ῆ when those people who had collaborated for its oppression were equitably reincorporated into the Athenian citizen body. The amnesty, though it is chronologically misplaced, forms a suitable conclusion to the protracted chaos caused by Athens’defeat in the Peloponnesian Warandthe bloody sequel of tyranny andcivil war.Aristotle, in contrast, is not composing a general history, but undertaking a specialized inquiry, the constitutional history of Athens. Hehasset up the restoration of the democracy as the dividing line in his history (41.2).23 Under these circumstances it is not surprising that Aristotle interests himself in details and in particular, an examination of the reconciliation agreement which brought the populace together again. Two separate treaties are unlikely for other reasons. Anyagreement between the hostile parties had to consider the situation at hand as well as provide equitably for the future. It must establish a cessation of hostilities and make some immediate arrangement for the exiles. In addition, it must ordain the conditions under which the disputing factions will live together again in harmony. It is not probable that the City Party would have consented to allow the exiles to return to their property before the terms of reconciliation had been carefully spelled out, nor would the Spartans have abandoned the City Party to the democrats unless they had assurances that the men of the City were afforded adequate protection from reprisals. If Xenophon were report21 Cloché, LaRest 246. J.-H. Kühn, “Die Amnestie von403 v. Chr. im Reflex der 18 IsocratesRede” , WS80 (1967) 35–36. 22For a more detailed discussion of the reasons for Xenophon’s omissions in Book II of the Hellenika, see: G. Colin, Xénophon historien: d’après le livre II Helléniques, (Paris 1933) 105–107. 23 Cf. Dionysius of Halicarnassus (Pomp III. 10) where he castigates Thucydides for not concluding hishistory with thereturn of theexiles fromthe Piraeus.

26

I. TheReconciliation Agreement

ing a separate peace treaty which included a provision for the emigration to Eleusis, a similar clause in the reconciliation agreement discussed by Aristotle would be redundant and contrary to the policy of the democratic leaders. Aristotle (40.1) indicates that there was concern lest Eleusis grow too large and that Archinos successfully abridged the time in which individuals could register to emigrate to Eleusis. The evidence points to one agreement only to which both Xenophon and Aristotle allude, but whose accounts differ because of their contrasting purposes andinterests. Though their versions do not completely tally as to content and sequence, they do agree on the major points: an armistice, some form of exclusion from the agreement for the leaders of the oligarchy, the right to settle in Eleusis, and an amnesty.

Was an act of amnesty included among the terms of reconciliation, or was it distinct from the reconciliation treaty? The ancient sources seem divided on this point. Some associate an amnesty with the restoration of democracy in 403/402 B.C., whereas others mention it in relation to the fall of Eleusis. Among the provisions of the reconciliation agreement, Aristotle (39.6) reports an amnesty clause. Nepos (III.2) agrees that an act of amnesty was connected with the return of the exiles, though he characterizes it as a lawpassed by Thrasyboulos. Andocides (I.81) seems to support Aristotle when he describes events in this order: the return of the exiles, the amnesty, the establishment of a provisional government. Consequently, one may infer that the amnesty was already in effect in 403 B.C. before the democracy was set up again. When Dionysius of Halicarnassus introduces the speech of Lysias against the proposal of Phormisios (Lys 32), he refers to the amnesty as existing prior to the debate of this measure which must have been held soon after the restoration of the democracy. Xenophon (II.4.43), on the contrary, as has been noted, mentions the amnesty after the reduction of Eleusis. Justin (V.10.11) and Orosius (II.17.15) fully agree with him; and Diodorus (XIV.32– 34), though he does not allude to the amnesty specifically nor to the fall of Eleusis, dates the reconciliation in general to 401/400 B.C. Isocrates (VII.67)

is cited in support of Xenophon’s sequence of events: the slaughter of the oligarchic generals followed by the amnesty. This reference, however, is too general and too vague in its formulation to lend much

support to Xenophon. Prior to the discovery of the Ath. Pol., scholars had to rely upon Xenophon and desultory allusions among other authors for information about the amnesty. J. Luebbert24 believed that the amnesty

24 Deamnestia anno403 a.C.abAtheniensibus decreta,

(diss.

Kiel 1881) 12.

I. TheReconciliation Agreement

27

wasinstituted after the fall of Eleusis, but hewasunder the impression that Eleusis existed independently for only a month or two after the return of the exiles. R. Grosser25 associated a conditional act of amnesty with the restoration and another amnesty of an unconditional ςwas reunited after the capture of Eleusis. He ο μ ῆ nature when the Δ did not speculate about the length of the interval between the return of the exiles andthe elimination of the oligarchs in Eleusis. J. M.Stahl26 believed in an amnesty made by the disputing parties in the first assembly after the return of Thrasyboulos and his men from the Piraeus; and after the fall of Eleusis, the amnesty wastransformed into a decree. Once the Ath. Pol. hadappeared, Stahl andother scholars,27 impressed by the thoroughness of Aristotle’s account of the reconciliation treaty, granted him pre-eminence as an authority, andin an effort to harmonize the versions of Aristotle and Xenophon, they concluded that there were two amnesties: one in 403/402 B.C. as part of the terms of reconciliation, the other enacted in 401/400 B.C. after the capture of Eleusis. Dorjahn28 asserts that there was only one act of amnesty instituted in 403/402 B.C. and that it was merely reaffirmed in 401/ 400 B.C. It is this latter view which seems the more plausible. The priority given to Aristotle as a source is not unjustified, especially in view of the summary wayin which Xenophon describes the events of the restoration. Therefore, one must follow Aristotle and accept that among the provisions of the reconciliation treaty of 403/402 B.C., there was an amnesty clause. A second amnesty introduced after the fall of Eleusis seems neither logical nor necessary. The emigrants to Eleusis, unless they were among the oligarchic officials specifically excluded, enjoyed the amnesty granted by the reconciliation agreement; and there is no evidence to suggest that the treaty was ever revoked or amended. It is true, however, that many of its provisions became obsolete once Eleusis ceased to function as an autonomous city. Obviously, the regulations concerning emigration to Eleusis and relations between the two communities were no longer applicable; but other provisions, such as those which dealt with the return of property confiscated by the oligarchy, retained their authority. Therefore, it seems reasonable to suppose that the amnesty remained valid in its original form; namely, in order for the leaders of the oligarchy to take advantage of it, they must first submit their accounts. Had there been a second and unconditional amnesty after the capture of Eleusis, it is odd that Andocides (I.90) still refers to exiles in 399 B.C. Thus, 25 DieAmnestie desJahres 403 v. Chr., (diss. Minden 1868) 21–23. 26 “Ueber athenische Amnestiebeschlüsse”, RhM46 (1891) 277–278. 27 RhM46 (1891) 486. Cloché, LaRest 294. W.S. Ferguson, CAH, V, 375. 28 Forgiveness 22–23. Accepted by Krentz (Thirty 104) andKühn (WS80 [1967] 45).

28

I. TheReconciliation

Agreement

the evidence points to one amnesty, conditional in its application, which was negotiated among the articles of reconciliation in 403/402 B.C. and which was not altered in any way after Athens and Eleusis were reunited in 401/400 B.C.

5. Status of the Reconciliation

Agreement

Was the reconciliation treaty a decree, a series of laws, or merely a political understanding between the City Party and the Piraeus Party? Of the amnesty in particular, Dorjahn29 asks this question and reaches the conclusion that it was “ nothing more than an agreement . The nature of the treaty as a whole must between political parties” be examined as well. The ancient sources present by nomeans a unanimous opinion. Nepos alone (III.2), referring to the amnesty, states that Thrasyboulos had it enacted as a law after peace had been established. Others (sch. ad Ar. Pl. 1146, Plu. Moralia 814B) allude to the μ α(cf. D.H. Lys 32), and Valerius Maximus (IV, ή φ ισ amnesty as a ψ 1, ext. 4) uses the Latin equivalent plebiscitum. Velleius Paterculus (11.58.4) characterizes it as a decretum. The major sources, however, λ ύ σ ε ις do not represent the treaty in such terms. Aristotle prefers δια α ῆ κ ι, and Lysias and Isocrates often plead for adherence to the or συνθ μ έν ή κ α ε ιςἐμ ιν . ῖςσυνθ α ὶτα ιςκ ο ο ῖςὅρκ agreement with the phrase, τ In the speech of Thrasyboulos, Xenophon (II.4.42) mentions oaths and concludes his account of the restoration of the democracy, when the residents of Eleusis take advantage of the amnesty, with the exμ ς έν . Dorjahn reasons that oaths μ ο ε ι ὁδῆ ο pression, τ ις ἐμ ο ῖςὅρκ would have been superfluous, had the amnesty been ratified in the form of a decree or series of laws; but this argument is not persuasive since oaths often accompany a lawor decree.30 The vocabulary applied to the reconciliation agreement resembles that which regularly occurs in the text of treaties between Athens and other cities.31 Treaties between sovereign states were ratified by some organ of the government; however, the reconciliation agreement appears never to have been so approved. Who, upon the return of the exiles, hadthe authority to give legitimacy to this treaty and when did it occur? It is evident that the agreement was in effect before the reinstitution of public 29 Forgiveness 20–21. 30 R. Bonner and G. Smith, TheAdministration of Justice from Homer to Aristotle, II, (Chicago 1938) 149–150. ι, see: IG I3, 118, lines 26, 34; IG II2, 1, line ο ρκ α ιandὅ κ ῆ 31 For examples of this use of συνθ 49, 60–61 (with 16; IG II2, 107, line 45; andIG II2, 111, lines 17, 27–28, 33, 35–36, 48– ειν). έν μ μ ἐ

I. The Reconciliation Agreement

29

officials since Andocides (I.81– 82) describes in part the process of setting up the government after the return of the exiles, and other sources32 testify that the Council had not yet been constituted when Thrasyboulos made his citizenship proposal. If any provision of this treaty ever attained a binding legal status, the major sources have main­ tained a curious silence; those scholars33 who believe in a second am­ nesty in the form of a decree after the fall of Eleusis must rely upon the dubious authority of scattered references in much later authors. Several other arguments may be advanced which cast doubt upon the treaty ever having become a decree or a series of laws. The provi­ sions of the agreement as they have been handed down contain no mention of public officials either as an avenue for redress of violations or as the executors of any of its terms. Aristotle (39.3) does speak of evaluators, but they were to be appointed privately by the parties in dispute and serve no public function. Had the agreement ever attained a formal, legal status, one would expect an allusion within it to the governmental machinery, whereby its terms would be enforced.34 Furthermore, one of Archinos’ actions would tend to support its extra­ legal character. If the reconciliation agreement had been transformed into a law, it would not have been necessary for Archinos to take the extraordinary step of bringing before the Council the individual who was violating the amnesty and have him summarily executed (Arist. 40.2) since he could have been prosecuted in the courts. The intro­ duction of the παραγραφή (Isoc. XVIII.2– 3) is suggestive because it grants the right to contest the admissibility of a suit on the grounds that it was παρὰ τοὺς ὅρκους (Isoc. XVIII.2) or παρὰ τὰς συνθήκας (Isoc. XVIII.4). But this fact does not signify that the treaty achieved a legal status. Insofar as is known, no individual could be taken to court because he had transgressed the terms of the treaty.35 The παραγραφή was merely a defensive maneuver designed to give proce­ dural advantage to the men of the City and to discourage nuisance suits against them. It provided some legal means to help guarantee a treaty which was never officially incorporated into Attic law and which ultimately depended upon the religious persuasiveness of oaths for compliance (cf. Isoc. XVIII.3). 32 Plu. Moralia 835F. sch. Planudea ad Hermog. V, 343, ed. Walz. Phot. Bibl codex 262. POxy, XV, no. 1800, frgs. 4 – 7, lines 3– 10. 33 Cloche, LaRest 294. Stahl, R hM 46 (1891) 277, 486. 34 Officials, such as the σύνδικοι and συλλογεῖς, were appointed later to assist in the enforce­ ment of the property regulations of the reconciliation agreement. 35 Cf. Isoc. XVIII.26. The speaker complains that Kallimachos will not be punished for bring­ ing suit contrary to the reconciliation treaty. The only penalty which Kallimachos could incur was the ἐπωβελία, if he were not able to win one-fifth of the jurors’ votes.

30

I. TheReconciliation Agreement

Though never elevated to a decree or series of laws, the reconciliation treaty exerted a strong influence. From Isocrates (XVIII.20), it is known that the accords and oaths had been recorded and were available in some form to interested parties for consultation. As the many allusions from the orators attest, the reconciliation agreement was often invoked in order to provide a sound moral foundation for a case.

6. Reconstruction of the Reconciliation

Agreement

Since no ancient author gives a complete account of the provisions of the reconciliation treaty, it is necessary to reconstruct the agreement from the various sources. Its terms will be assembled according to author and will be discussed fully in order to determine what precisely the agreement encompasses, so that its success or failure may subsequently

be assessed.

6 ARISTOTLE 39. 1– ῖν ε η ν ςἈ α θ ο ίω ν ά υ ειν τ ντ ω νἐξοικ νἄ νἐ ῶ σ τ ςβουλομέν ε ιμ ο ὺ τ ςκ α ὶ αὐ ς ρ ρ υ ά α α ε ςκ τ το ὶ κυρίο ινἘλευσ ςὄν ο κ ῖν αἐπ ο τ α υ ιτίμ ἔχ ς . νκ α μ ῶ ο υ ὶτ έν τ υ α ὰ ο ἑ α νκαρπ υ ὑ τ ῶ After the Thirty were deposed, they proceeded to Eleusis. The

migration of oligarchs and their supporters to Eleusis probably did not cease during the reign of theTen of the City. It seems only natural that under the circumstances Eleusis would have been officially recognized as the outlet for residents of the City who feared for their safety after the democrats had returned. The treaty acknowledges the prior existence of this satellite city and attempts to impose controls on emigration and intercourse between the two communities in order to define more clearly the relation of Eleusis to the City and to make their coexistence aspeaceful andorderly aspossible. Theoligarchic officials and their sympathizers whohadsettled inEleusis prior to the conclusion ofthe reconciliation agreement, though they did not take part in its negotiation, must have been included in it. They are not specifically excluded from any of its terms except the amnesty clause; and then it is only the officials of the oligarchy, who may receive amnesty anyway, if they submit their accounts. Therefore, the oligarchs and their followers already in Eleusis had to abide by the same regulations as the émigrés and were equally entitled to take advantage of its benefits. The initial clause of the reconciliation treaty describes under what conditions the émigrés will live in Eleusis. They will be in full posses-

I. TheReconciliation Agreement

31

sion of their political rights (ἐ π ιτίμ ο ς ), independent (κ υ ρ υ ίο ), and ς υ self-governing (α ὐ ρ το ά κ ς ἑα ρ το α υ τῶ ). As regards their property, ν they will maintain full control of it and enjoy all earnings from it (τ ὰ α ὑ τ ῶ νκα ρπ ο μ υ έν ο ). ς υ

The fundamental question is to which community do these terms apply, Eleusis or Athens. Were the emigrants fully enfranchised in one or both communities? It is logical to assume that they would attain full rights in their own community on an equal basis with the oligarchs and their followers who had preceded them to Eleusis. Ἐπ ιτίμ ς ο υ , however, must also refer to the émigrés’ relationship with Athens as other clauses of the agreement make clear. The new inhabitants of Eleusis will contribute to the Spartan confederation just as the rest of the Athenians do (Arist. 39.2); apparently, the City-dwellers still consider the émigrés as members of the Athenian citizen body. Aristotle (39.5) declares that the emigrants may hold office in Athens, if they have transferred their abode back to Athens. Hadtheir relationship to the City changed to that of foreigners or metics, they could not have had the opportunity to become magistrates upon their return to the City.36 Similarly, κυ ςand α ρ ίο υ ὐ το ρ ά ρ κ το ςἑα α υ τ ῶ νallude to the position of the émigrés vis-à-vis both Eleusis and Athens. Obviously, independence from Athens is guaranteed, or else the right to emigrate would be meaningless. Athens could not legislate, impose taxes, or the like for Eleusis; in such matters the émigrés would be self-governing. Cloché37 asserts that the promise of independence protected the new residents of Eleusis from domination and mistreatment by the oligarchs already living there as well as from Athenian intervention; technically the émigrés could invoke this clause of the reconciliation treaty against the oligarchs in case of disputes. It is unlikely that such cases would often arise because the oligarchs would desire to accommodate as many of their former supporters in Eleusis as possible. More probably the emigrants as well as the oligarchs were sovereign in regard to the old inhabitants of the community. Eleusis was handed over to them to govern as they wished; the old residents were to be subject to their will. The emigrants maintained absolute control over their possessions and incomes. Upon emigration to Eleusis, they neither forfeited their property; nor did the City confiscate it.38 They could tend to their prop36 This provision allows the émigrés to keep all their land holdings. Had their status changed, they could not have done so without a special concession such as ἔγκ ςκ ῆ α η ὶὀ σ ιςγ τ ικ ς. ία Since no such dispensation is mentioned, it must be concluded that the émigrés retained their Athenian citizenship.

37 LaRest 252. 38 For a discussion of the subsequent confiscation of the property of the oligarchs, infra 64–67.

32

I. TheReconciliation

Agreement

erty in person when the Mysteries were being celebrated and could

visit possessions outside the ἄ σ τ υat any time. The question, whether this provision protected property acquired at no cost orcheaply through confiscations made during the oligarchy, will be taken up in reference

to the regulations which Lysias reports. ελ ὸ ε ν νεἶν ρ ω ῖσ ρυ ιμ , ἐπ θ τ ὸδ α ς ᾽ἱερ ή ο ιδ φ κ μ τέ ὲΚ α α ι κοιν ὸ νἀ ο λ π κ α ςκ ίδ α ὶΕὐμ α τ ρ ὰ ια . τ ὰ π ά τ The sanctuary at Eleusis will be accessible to citizens of the City as well as the émigrés in Eleusis, and its administration will remain in the hands of the Kerykes and Eumolpidai according to ancestral custom. The Eleusinian sanctuary was far too important to yield to the control of the emigrants, so it wasdecided to keep it open to both sides. The celebration of the Mysteries forms the one exception to the plan to keep the communities isolated from each other. It is difficult to discern the political sympathies of the Kerykes and 22) among the exiles Eumolpidai at this time. In Xenophon (II.4.20– there is a certain Kleokritos who is described as the herald of the Mysteries andis therefore probably a member of one of these families.39 After Thrasyboulos defeated the oligarchic forces at Munychia, Kleokritos, when the dead were being returned under truce, delivered a speech of reconciliation to the men of the City. Of the affiliations of the other members of these families, nothing is known, nor is there any information about the celebration of the Mysteries during the period of estrangement between Athens andEleusis.

ὴἐξεῖν μ α ιδ ή ή κ τ τ ετο ὲμ ετο ὸἄ ῖςἐ σ τ υμ νε λευ ῖςἘ ό θ σ ε ἰςτ ιν ρίο ιςἑκα ρο . ς τέ μ υ σ υ τε ν ςἘλευσιν ὴ ά δ εἰέν λ τ τ ε ω ο σ ῦἄ α ιπ The emigrants to Eleusis will not be allowed to enter the City, and the residents of the City will be forbidden to travel to Eleusis. The sole exception will be on the occasion of the celebration of the Mysteries, when inhabitants of each community mayvisit the other. The usual explanation why the City-dwellers were given access to Eleusis at the time of the Mysteries is based upon the importance of this religious festival and the knowledge that the sanctuary was to νhad family connecθ ε ἱἘλευσινὀ belong to both communities. Since ο tions in the City, as Xenophon reports (II.4.43), some accommodation had to be made for the émigrés to travel to Athens in the event that their family and friends could not visit them in Eleusis because of old age or some other infirmity. Cloché40 asserts that the occasion of the Mysteries was chosen because it waspreceded by a sacred truce which 39 K. Clinton, TheSacred Officials of theEleusinian Mysteries, 40 LaRest 254.

(Philadelphia 1974)

77.

I. TheReconciliation

Agreement

33

of Eleusis to go to the City with impunity. These conclusions arevalid as far as they go,butaremisleading nevertheless because of certain preconceptions which underlie them and because of several questions which are left unanswered. Some critics41 assume that the motive behind this measure is merely religious and that it is intended to restrict travel to the sanctuary in Eleusis or the Eleusinion in Athens. The wording of this provision, however, is nonspecific; it regulates visits to Eleusis and the City in general and not to the respective sanctuaries in particular. Presumably, at the time of the Mysteries, individuals could go anywhere in either community. Which Mysteries, the Greater or Lesser, are indicated by this clause? Commentators42 have always understood it to refer to the Greater Mysteries, but the text contains nothing to prove that the Greater Mysteries are meant to the exclusion of the Lesser Mysteries. In fact it is this very lack of specificity which suggests that both celebrations are indicated.43 Thus, the émigrés have another reason to visit the City, to attend theLesser Mysteries, since these rites are celebrated in Athens at Agrai on the Ilissos.44 There is no reason to believe that ο ἱἘ λ ε υ ν ό θ σ ιν ε , although able to participate in the Greater Mysteries, were barred from celebrating the Lesser Mysteries. Therefore, there were two occasions each year for the members of one community to visit the other. As Cloché briefly mentions, a truce preceded the Greater Mysteries. The source of this information is IG I3, 6 which is dated circa 460 B.C. π ό α τ ιalong It stipulates that a truce will be given to initiates and ἐπ with their retinue and to all Athenian citizens, beginning 15 Metageitnion through all of Boedromion until 10 Pyanopsion (side B, lines would enable the new residents

8–47).

ό π α τ ιand for their followers and There will be a truce for initiates and ἐπ their property and for all Athenians. The period of the truce begins 15 Metageitnion and extends through Boedromion until 10 Pyanopsion. The truce will be in effect in those cities which pay reverence to the sanctuary and for the Athenians there in those same cities. For the Lesser Mysteries there will be a truce which begins 15 Gamelion andextends through Anthesterion until 10 Elaphebolion.

41

40. G. A. Lehmann, “Die revolutionäre Machtergreifung der DreisKühn, WS80 (1967) 39– sig unddie staatliche Teilung Attikas (404– 401 v. Chr.)” , Antike undUniversalgeschichte, Festschrift Stier, (Münster 1972) 223 n. 57. 40. Lehmann, Festschrift Stier 223 n. 57. Levi, ComAr, II, 343. 42 Kühn, WS80 (1967) 39– νΠ ο λ ιτ ε α ίω ν ία, CR 5 [1891] 114) proposes a η θ Notes on the Text of Ἀ H. Jackson (“ ” Mysteries aremeant. ο ρ ιςif both theGreater andLesser τέ ρί ο ιςἑκα τη σ υ change to μ 43 Kenyon, ConstAth 124. 44 G. Mylonas, Eleusis and the Eleusinian Mysteries, (Princeton 1961) 240.

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The new residents of Eleusis were still considered to be Athenian citizens, and were therefore protected by the truce when they travelled to the City during this time, whether or not the amnesty clause applied to them. This inscription also records that an identical truce was in force during the Lesser Mysteries, extending from 15 Gamelion through all of Anthesterion until 10 Elaphebolion. Accordingly, ο ἱἘλευ σ ιν ό θ ε νcould travel to the City without fear for their personal safety at this time as well, and residents from the City could journey to Eleusis.

In light of IG I3, 6, one might form a different conclusion about this provision. Members of one community could visit the other, only when the Mysteries were being celebrated in that other community. Thus, when the Greater Mysteries were being held, the City-dwellers

could visit Eleusis, but the émigrés could not visit Athens; and on the occasion of the Lesser Mysteries, ο ἱἘ λ ευ σ ιν ό θ ε νcould go to the City, but the residents of the City would be prevented from travelling to Eleusis. This interpretation seems less likely. The wording of the exception to the non-fraternization regulation, although brief and highly ν -clause requires a verb or two to complete ή λ elliptical, is clear. The π its sense, and it seems only natural to understand ἐξεῖν α ι ἰέν ιfrom α ςsupplies a sense of reciprocity. Thus, ο υ τέρ the preceding phrase; ἑκα the expression is most easily construed, “except on the occasion of the Mysteries (Greater and Lesser) when each side mayjourney to the other’s community” . If the alternative interpretation were to be the case, one would expect the exception to be expressed in a more unequivocal way. The Mysteries were selected as the period for travel between Eleusis and Athens for two reasons. In part, the motivation wasreligious. The inhabitants of both cities would be able to attend their ancestral rites in both communities. More importantly, the Mysteries were conducted under a sacred truce which afforded a generous amount of time (110 days) when residents of both cities enjoyed a certain security andfreedom from harassment. Not only humanitarian impulses, but also practical purposes animated this provision of the reconciliation agreement. It provided a mechanism for peaceful contact between Eleusis andthe City under controlled circumstances. Residents of both communities could visit their families and friends living in the other city for a reasonable length of time each year, celebrate both sets of Mysteries, andin the case of the émigrés, care for their property and business interests in theCity, all without threats of reprisal from the other side. σ τ υat all times The émigrés were prohibited from entering the ἄ except at the time of the Mysteries. The wording of the treaty is precise and does not restrict travel elsewhere in Attica. Presumably, the

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35

new residents of Eleusis could visit their country properties at any σ τ υ . time, so long as they were not within theἄ νε ω ρο ν τ σ ιό σ υ ν τε λ ε ῖνδ ὸτ π νπ ὲἀ μ ῶ α χ μ ἰςτ ὸσ ικ υ ὸ νκαθά ρ π ε ςἄλλ ο τ ὺ ο ςἈ η υ ν α θ ς ίο . υ μ α μ Eleusis like Athens will contribute from its resources to the σ υ χ ικ ό ν . Since Athens no longer had allies or subjects after the Peleponnesian War and had sworn in 405/404 B.C., as part of the conditions of peace, to have the same enemies and friends as Sparta, the συμ μ α χ ικ ό νmust allude to the Spartan confederation.45 Wasthe contribution of each community separately assessed, or was there one evaluation for all of Attica to which both Athens and Eleusis contributed? Although it is not possible to determine with certainty, the expression, , suggests that the tribute which Sparta just as the other Athenians” “ had imposed after the defeat of Athens was to be the responsibility of both communities. Such an arrangement was the only just solution,

since Athens would lose many wealthy citizens through emigration and its loss was Eleusis’ gain. The provision concerning separate repayment of war debts (Arist. 39.6) is suggestive. Financial obligations incurred jointly, when the City wasunited, were to be honored jointly; but debts contracted by the different factions during the civil warwere to be paid back separately. ς , supposes that the emiυ ςἈθηναίο υ ο ςἄλλ ὺ ά ρτο π ε The phrase, καθ grants to Eleusis and the City-dwellers together comprised a unified larger group, namely, the citizen body of Athens. This formulation is yet another indication that, in the opinion of Athens, the new residents of Eleusis retained their citizenship; they were neither metics nor foreigners, but full citizens who possessed local autonomy within the boundaries of Attica. The émigrés were in a category by themselves andoccupied an anomalous andunprecedented position.

β ά ν ω σ ινἘλευσῖν μ νοἰκ ω νδ ν τ ἐ ὰ νλα έτιν ία ιό π νἀ ῶ ςτ ε μ υ ι, σ β α ὴσ μ ίν ν υ έν νδ . ἐὰ ο ή ω ὲμ λ η σ ο ινἀ λ ις , τιμ λ νκεκτημ ιντ ε ὸ ίθ ε π ν ο ρ , κ α ὶ ἥντινἂ τε ςἑλέσ θ α ι τρ ε ὰ τ ὴ ν ω ξ σ ῖςἐκά ιντιμ νοὗ ο τ ιτά β ν ά ε ιν . Ἐλευ δ ὲσυν ο ςἂ ν σ ε μ ιν ικ ῖν ίω ο ν ὓ ο ο ύ ὗ α λ λ ω ν τ α ο τ ιβ ι.

᾽

This clause concerns the process by which émigrés may purchase houses in Eleusis. It is evident that not all émigrés were interested in ςτ νἀ ιν ῶ π buying homes, but only a portion of them (τ ε ιό ). The ν τ ν ω 45 G. Busolt and H. Swoboda, Griechische Staatskunde, II, (Munich 1926) 917. Cloché, LaRest 255. Lehmann, Festschrift Stier 222. Levi, ComAr, II, 343. They believe that Eleusis was an independent member of the Spartan confederation, and its contribution was therefore assessed separately. Sandys (CAth 151) and Kühn (WS 80 [1967] 40) interpret σ μ υ μ α χ ικ ό ν as a fund for the common defense of Athens andEleusis.

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others probably either rented houses from the old inhabitants or secured shelter from the oligarchs who had confiscated the property of the Eleusinians whom they had executed.46 The emigrant was first supposed to try to persuade the owner to sell. If the émigré and the owner were unable to reach an agreement with each other on anequitable price, each party chose three evaluators. Whatever price that these evaluators deemed fair, the owner had to accept. It seems as if the owner had no right to refuse to sell, but was compelled to do so, if his property were sought after by an émigré. There was no avenue of appeal open to the owner; there wasno legal mechanism by which he might contest the necessity of selling or the price reached by the evaluators. One effort was made to prevent the owner from being cheated. Of the six evaluators appointed to assess the value of a house, the owner chose three whopresumably were friendly to him andwould look out after his interests. Though Eleusis was handed over to the emigrants to control, the provision makes clear that the emigrants were to deal peacefully and equitably with the old residents rather than to employ the methods of the Thirty, confiscation or forcible ejection. The final phrase offers some difficulty in interpretation because of the ambiguity created by Aristotle’s conciseness. The problems lie in the identity of the οὗ ο ιand the definition of σ τ ν ο υ ικ ε ῖν . As Cloché λ ε υ σ ιν ίω νmust refer to the old inhabitants. demonstrates,47 the Ἐ τ ο ιwith Three explanations are argued. Haussoulier48 identifies the οὗ ο ε ῖνwith a specific meaning, “ ν the evaluators and invests σ ικ υ to live in the same house with” . Thus, the phrase would be rendered, “ no Eleusinian can be a tenant of the new owner unless the evaluators τ ο ιto be thenewresidents of . Cloché49 understands theοὗ consent to it” . υ ν ο ε ικ ῖν Eleusis, but concurs with Haussoulier on the meaning of σ an Eleusinian may live in the house of He translates the expression, “ . the buyer as joint tenant only with the consent of the new tenants” ὗ τ ο Other commentators50 maintain that the ο ι are the émigrés, but to dwell in the same community ῖνas less precise, “ ε ο ικ ν υ construe σ with” . In this case the old residents would not be able to continue to live in Eleusis without the approval of the newinhabitants. The latter ο ι τ ὗ theory is the most probable. Although it is reasonable to link ο syntactically with the evaluators, logically it is not. It would be curious, indeed, if the newinhabitants, whohadthe option to buy anyhouse as 46 D.S. XIV.32.5–6. Lys. XII.52; XIII.44–46. X. II.4.8–10. 47 LaRest 257 n. 1. 48 Aristote: Constitution d’Athènes, (Paris 1891) 58. 49 LaRest 256–258. 50 Kühn, WS80 (1967) 40. Lehmann, Festschrift Stier 222 n. 56. Levi, ComAr, II, 343–344. 467. Sandys, CAth 151. Rhodes, AAP466–

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Agreement

long as they paid the negotiated price, had to submit to the decision of the evaluators whether they could have the old residents as tenants or not. Had the evaluators been awarded this added duty, it is likely that in the event of a dispute about the amount of rent to be paid, they would have exercised final authority. If this were the case, however, Aristotle surely would have elaborated. In lieu of anunambiguous ε ικ ῖν ο ν reference to joint occupancy and rent, the definition of συ must be general.51 To insure their personal safety and enjoy a sense of security, the émigrés must have held the right to decide with whom they weretodwell. After all,theoligarchs hadslaughtered manyEleusinians and could not possibly be expected to trust all who had survived their attack. The old residents for their part must have felt uneasy about sharing a community with those individuals who had been re-

sponsible for the deaths of members of their families andtheir friends. Although repatriation elsewhere would have caused the Eleusinians great hardship, they would have the compensation of withdrawing out from under the threat which the émigrés would have constantly posed.

έν ο ιςἐξοικ ρα φ ὴ νεἶν γ ο α ῖςβουλομ ι το ινδ ἀπ νἐπ τὴ ὲ ῖςμ ε ῖν , το ςἂ νὀ μ ό σ ω σ ιντο ρ μ ςὅρκ ν ῶ ςδ ε ὺ ο , τ έ υ κ μ αἡ ὴ ν ο ῦ σ η ινἀ φἧ δ ᾽ίκη σ ι νιδ ή σ ω σ ιν μ ὰ νεπ η μ ο ῦ ιδ σ ιν ῦ σ δ ἐξο ο ο δη ινε ἴκ σ ι, το ῖςδ ἀπ κ α ὰ τ τ α ὐ τ ά .᾽ ᾽ ᾽ Those individuals who wish to emigrate to Eleusis and who areresident in Athens will register within ten days after swearing the oaths. These oaths are presumably the ones which the People swore to abide by the reconciliation treaty and from which Andocides purports to μ ο η ο π δ ἀ

ἐπ ε

quote (I.90). The registration procedure and its purpose are nowhere explained by the ancient sources. In all likelihood the emigrants had to indicate to the demarch that they were moving to Eleusis, since he was the official responsible for the list of citizens.52 By having the émigrés register, the Athenians could keep an accurate record of who and how many moved to Eleusis and, above all, could prevent them from entering the ἄ σ τ υduring the period when it was forbidden for them to do so. Inasmuch as the emigrants retained their Athenian citizenship, it is improbable that their names were deleted from the citizen rolls; but probably a separate list wasmade recording the names of those who were to depart. For administrative andmilitary purposes, such as liturgies and the enrollment of soldiers, it wasnecessary to have a precise knowledge of who had remained in the City and who had left for Eleusis. After registration, emigration will occur within twenty , Sandys cites: Th. II.68.3 and VI.64.3. 51 As parallels for this use of συνοικεῖν 52 H.vanEffenterre, “Clisthène et lesmesures de mobilisation” , REG89 (1976) 14–15.

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Agreement

days; but the text is too obscure to determine unequivocally whether this twenty-day period included the ten days allotted for registration or commenced at its conclusion.53 One might further inquire why the authors of this treaty ordained this amount of time for the entire emigration process. Since the democratic exiles returned from the Piraeus on 12 Boedromion (Plu. Moralia 349F), which falls in the middle of the sacred truce declared for the Greater Mysteries, the number of days designated for the entire emigration process may have been dictated in part by the consideration that the procedure should be completed by the time the truce ended or soon thereafter. For those people who were not in Athens at the time, the same μ ο ῦ ς η ? σε δ ο π registration procedures will apply. But who are the ἀ Two possibilities suggest themselves, either the oligarchs and their satellites who fled to Eleusis before the reconciliation agreement was negotiated or individuals who left the City when it appeared certain that the democratic exiles would be victorious. If the former group is meant, however, another question immediately arises. Wasthere an advantage to registering formally for emigration as opposed to remaining in Eleusis unregistered? None of the sources state that registration involved some gain, so that it must be assumed that there wasnone. It is doubtful that the most compromised officials under the oligarchy would risk a return to the City54 though some of the Three Thousand who fled to Eleusis in fear might visit Athens to register since they were covered by the amnesty unconditionally. It is more likely that μ ο σ ῦ ινrefers to the latter group who, if they could be lured δη ο π ἀ back to Athens, might be persuaded to stay. If they did not elect to remain, they could take advantage of the emigration provision just as the others could. μ ὴἐξεῖν χ ε η δεμ ινμ α ρ ία ιδ ρ χ ὴ νἀ ντ ῷ ὲἄ νἘ ῶ ἄ νἐ ὸ σ τ ε ντ ιτ λ ε υ το ικα σ ῖν ικ ο ῦ ν τ η ῷἄ α τα ψ ι .π σ τ ά ρά ,π ρ ε λ ικα ντ ινἐ γ ὶν νἀ ἂ π ο τ ο ικ εῖ ν.

It is obvious that, in view of the travel restrictions between the two communities, a newresident of Eleusis could not hold a magistracy in Athens, since he would be present in the City only upon the occasion of the Mysteries which would not allow him adequate time to discharge his responsibilities. If he returned to the City and registered as residing there again, the émigré would be able to hold office. This offer is made without qualification and is open to even the most compromised of the Three Thousand and to the leaders of the oligarchy. 53 For a proposed solution to this problem, infra 69. 54 Rhodes (AAP 467) states that the men already in Eleusis remained they could enroll there or be registered in absentia in Athens.

unregistered, unless

I. The Reconciliation Agreement

39

Since non-citizens could not assume public office, the possibility of holding a magistracy once the émigré returned to the City is another proof that the emigrants were not stripped of their Athenian citizenship. Unstated in this provision is a requirement which mayhave overshadowed any inducement to resettle in Athens that this clause might have offered to the émigrés. Just as any City-dweller, an émigré would have to undergo a scrutiny before entering office which might prove an embarrassment or worse. The reverse process of registration which indicated that the émigré was a permanent resident of Athens once again is not described, but it is likely that it was similar to the procedure for registering for emigration to Eleusis. One possible advantage of registration for Eleusis may be discerned. If the emigrant chose to return to live in Athens again, there had to be some way to verify that he had been a citizen whohad moved to Eleusis. No one was to be allowed to sneak onto the citizen rolls. Stahl55 cites this passage to allege that the émigrés were in reality deprived of their political rights until they had returned to the City. As Cloché56 aptly points out, they were not forbidden from exercising their political rights in their own community, they were free to participate in the government of Eleusis if they were so inclined. The treaty does recognize the possibility of dissatisfaction with life at Eleusis and the emigrants’ desire to return to Athens, but Cloché57 goes too far in stating that this provision envisions the reuniting of the two communities. It was formulated to encourage residency in Athens.

ο τ ααὐ ν ο ό ςτ ο ῦφ υεἶν ρ ίςτιν ἴτ ια α ,ε ικ α α τ ὰτ ὰπ ὲδίκ ά τ ςδ ὰ τ ἔκ τειν χ ίᾳ ε ιρ ε νἢἔτρω σ ε . ν This clause may refer only to the residents of the City and not to the inhabitants of Eleusis58 since the émigrés were granted a measure of autonomy and were presumably removed from the legislative and judicial jurisdiction of Athens. The provision does apply to all residents of the City irrespective of the faction to which they belonged. The extreme conciseness of this clause raises several important questions. Were murders committed before or after the reconciliation treaty intended to fall under this provision? Did this clause form an exception to the amnesty which immediately follows? One naturally thinks of the executions carried out during the regime of the Thirty and assumes that this provision refers to them. The use in the protasis 55 RhM46 (1891) 484. 56 LaRest 258–259 n. 2. 57 LaRest 258. 58 Kühn (WS 80 [1967] 41) declares that this clause applies to both the residents of Athens and Eleusis in order to reassert the validity of the old laws of homicide over the encroachment madeby the oligarchy.

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of a past tense in the indicative

rather than in the subjunctive strongly supports this interpretation. But the number of homicides committed α ὐ τ χ ία ο ειρ , if this term is literally construed, by the officials of the oligarchy with the possible exception of the Eleven and by the Three Thousand cannot have been many. Understanding this clause to apply strictly to the future is equally unsatisfactory. The wording of the amnesty itself is cited in support of this view that murder was an offense covered by the amnesty.59 The amnesty provision does not specifically exclude murder; nor does it give an indication of its relationship with this clause, at least in Aristotle’s version. If this were the case, no murder charges arising from the period of the anarchy or the civil war could be prosecuted. This interpretation seems unlikely, however, since homicide carried with it the taint of contamination and as such, posed a threat to the community at large. Consequently, there had to be a process by which the City could protect itself from this pollution. One may infer from the phrase, κ ρ ια α τ ὰτ ὰπ , that, ά τ unlike other offenses which the amnesty will excuse, murder trials will continue to be undertaken as before without restriction. The fact that homicide cases merited their own clause further suggests that δ ίκ α ιτ η ο λ ῦφ ν υ ό θ ό ο ρελ τ νof the υstand in opposition to τ ω α νπ ῶ amnesty provision. Therefore, the most sensible conclusion is that this clause forms an exception to the amnesty.60 Similarly, intentional wounding61 was deemed a serious enough crime to fall outside the amnesty provision. Just as the amnesty provision barred those officials ςduring who had been most culpable for the sufferings of the Δ μ ο ῆ the oligarchy, this clause was careful to single out those individuals who were most responsible for acts of violence and allowed them to be called to account for their actions. η η δ σ ν έν ικ ςμ αμ α η δ ρ κ ε ὸ ε ῖνἐξεῖν ν ὶπ η λ υ θ νμ ό τ ω ρ ελ ὲπ α νδ ῶ τ α ι,

The reconciliation agreement did not distinguish who may or may not take advantage of the amnesty provision with the exception of the leaders of the oligarchy. Therefore, the assumption must be that the amnesty was extended to all Athenians, regardless of their political allegiance. The expression, τ λ η θ υ ό ν ω τ , is ambiguous since ρελ νπ α ῶ it does not make it at all clear whether it refers solely to crimes committed during the oligarchy or covers the events which occurred prior 59 Cloché, LaRest 259–262. Dorjahn, Forgiveness 33. 60 R. Bonner, “Note on Aristotle Constitution of Athens XXXIX.5”, CP 19 (1924) 175–176. 61 Trials for intentional wounding just as those for premeditated murder were held before the Areopagus (Arist. 57.3, D. XXIII.22). Bonner (CP 19 [1924] 175) successfully refutes Lipsius’ suggestion (AttRecht 42 n. 129) that this provision was designed to restore to the Areopagus judicial functions usurped by the Thirty.

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41

to the institution of the oligarchy. After their defeat at Aigospotamoi in 405 B.C., upon the motion of Patrokleides, the Athenians granted amnesty to certain political and financial offenders, but excluded others; a little later, they recalled their exiles. Were these persons who either did not return to benefit from the decree for whatever reason or whowere especially excluded from it included in the reconciliation treaty of 403 B.C.? Certainly, there is nothing in the agreement as it is preserved which restricts it to members of the City Party andPiraeus Party. The inclusion in the reconciliation of those exiled prior to the oligarchy would fall outside its immediate purpose, to reunite the disputing factions in the civil war. The question will be explored at greater length, when the case of Andocides is examined. Cloché62 believes that the way in which this clause is worded precludes lawsuits among members of the same faction; however, there are no means of verifying this assertion from the formulation of the phrase itself. The reconciliation agreement was intended to bring together the men of the City and the exiles and did not necessarily prevent quarrels among individuals of the same party. This problem will be discussed further when eligibility to receive amnesty is examined in detail. κο ν τ ςτριά ακ α ςτο ςδ ὶ το ὺ έ ρ ὺ κ ὸ ακ α ςἕν ὶ το π λ ὴ νπ δ ε κ α ακ ὺ ὶ ρξ ς , α ν ςἄ τ α ω α ιέ ςτ ο ῦΠ ε ιρ ὺ ο τ A small number of persons were barred from enjoying the amnesty, those officials who wielded the most power under the oligarchy and were therefore most responsible for the illegalities committed during this time. The Thirty were, of course, excluded from the amnesty because they had held supreme authority and had been the architects of the reign of terror which resulted in the banishments, confiscations, and the executions. The Eleven had been chosen by the Thirty (Arist. 35.1) along with three hundred scourge-bearers who served as their assistants. Aristotle (52.1) defines the duty of the Eleven as bringing before the tribunal land and houses to be confiscated and as handing η over to the π τ α ί property which has been judged to be public. ω λ Furthermore, the Eleven introduced informations and administered the death penalty.63 Since the methods of the tyrants depended heavily on delation, confiscation, and execution, it is scarcely surprising that the Eleven, whose job it wasto carry out these orders, were excepted from the amnesty. The Ten of the Piraeus are more difficult to assess since virtually nothing is known about them. Like the Eleven, they 62 LaRest 262. 63 E.g., the death of Theramenes (X. II.3.55–56).

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had been selected by the Thirty (Arist. 35.1). They probably exercised executive functions similar to those which the Thirty performed in the City. They presumably relied upon similar methods and were con-

sidered as an extension of the authority of the tyrants. After Thrasyboulos had seized Munychia, the Ten of the Piraeus probably fled with the other oligarchs to Eleusis or found shelter in the City. Aristotle includes the Ten of the City among those groups prohibited from the amnesty. In a sense, they were not members of the oligarchy but their successors. Unlike the Eleven and the Ten of the Piraeus, they were not elected by the Thirty, but by the Three Thousand (X.II.4.23). Only Nepos supports Aristotle and includes the Ten of the City among the excluded groups (III.1). The testimony of Nepos, however, is suspect since his allusion to the exclusion does not bear directly upon the amnesty, and he does not mention the Eleven or the Ten of the Piraeus. Xenophon does not list the Ten of the City among the groups forbidden to return to their property (II.4.38);64 and in connection with the amnesty itself (II.4.43), neither does he restrict eligibility to the amnesty in any way, nor does he append the proviso concerning the submission of accounts. Andocides (I.90) cites in part the oaths which all Athenians swore after the reconciliation treaty was concluded. His account tallies nicely with Aristotle’s in that the amnesty clause restricts certain persons from obtaining forgiveness and that this exclusion is modified by the possibility of submitting accounts in order to enjoy the amnesty. Therefore, the discrepancy lies only in the number of persons excluded from the amnesty since Andocides does not mention the Ten of the City andthe Ten of the Piraeus. Many attempts are made to reconcile Aristotle, Xenophon, Andocides, and Nepos on this point; however, only Aristotle andAndocides are in direct disagreement because they are the only ones who report different groups as excluded from the amnesty. Various reasons are put forth either to harmonize or elucidate their conflicting accounts. Some critics65 postulate a lacuna in the text of Andocides following νἕνδεκ αand would insert the Ten of the Piraeus and perhaps the τ ῶ Ten of the City afterwards. Another scholar66 attributes a faulty memory to Andocides or accuses him of neglect when he omits the Ten of the Piraeus and the Ten of the City. The explanation seems unlikely reports that except for the Thirty andthe Tenof the City, there wasto be nobanishment nor confiscation. Heexcludes no groups from the amnesty, nor does he make it contingent upon the submission of accounts. , 2376. α τ 65 G. Dalmeyda, Andocide: discours, (Paris 1930) 45. T. Lenschau, RE, s.v. τριάκον K. J. Maidment, Minor Attic Orators, I, (London 1941) 408. E. C. Marchant, Andocides: DeMysteriis andDeReditu, (London repr. 1906) 153. 66 Cloché, LaRest 274.

64 Nepos

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43

On the Mysteries wasdelivered in 399 B.C., only four years after the restoration; and as Isocrates (XVIII.20) attests, the reconciliation agreement was recorded in some form for consultation by the public. It is possible that Andocides with premeditation left out these two groups because they had rendered their accounts and were no longer profitable to exploit in his speech. Cloché67 rejects this hypothesis since, unlike the Ten of the City, there is no evidence to suggest that the Ten of the Piraeus had been amnestied by this time. In consideration of the fact that his trial took place in Athens andthat the Ten of the Piraeus had not exercised power in the City, Andocides may have omitted them since the Athenians may have been less familiar with their activities. Furthermore, the Piraeus officials were to have submitted their accounts before juries in the Piraeus and were not within the strict jurisdiction of the City so that Andocides mayhavementioned only those officers of the oligarchy who were best known andmost odious to the Athenians and who hadeither died in Eleusis in 401/400 B.C. or were in exile. Many of the Ten of the City, on the contrary, by this time had given their accounts andreceived the amnesty so that there may have been no useful purpose in mentioning them. Although one cannot demonstrate either alternative with certainty, a lacuna in the text of Andocides or a purposeful omission on hispart must remain a possibility. In any event, the evidence of Andocides is not sufficient to vitiate the testimony of Aristotle that both the Ten of the City and the Ten of the Piraeus were excluded from the amnesty. Other commentators68 want to delete altogether the Ten of the City from the groups barred from the amnesty, claiming that they had been mild and had done nothing to merit exclusion. These critics ςin Aristotle’s text as a gloss on ρξ ν τ α ιέ α α ςἄ ειρ ςτ ῦΠ ο ω ο ὺ construe τ νδ κ έ α(of the Piraeus) after τ ῶ αand would restore τ νδέ κ τ ῶ ντριά ῶ ν τ α κ ο in Andocides’ text. It is unlikely that the Athenians would refer to the Piraeus officials as merely “the Ten”since such a designation would beambiguous andapt to confuse them with the Ten of the City. It would also be strange if the Athenians dubbed the Piraeus officials according to their number rather than their main attribute, the area of their jurisdiction. The fact that many of the Ten of the City did submit their accounts (Arist. 38.4) at least suggests that they did so since

in order to obtain amnesty. What was the character of the Ten of the City? Theancient sources provide a contradictory picture. Aristotle (38.1– 3) portrays those whom he designates as the First Ten in unflattering terms. After the 67 LaRest 274. 68 E.g., D. M.MacDowell, Andocides: Onthe Mysteries, (Oxford 1962) 130–131.

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overthrow of the Thirty, ten men were elected with full powers to settle the warwith the exiles. But instead they sought aidfrom Sparta. Fearful of their ownoverthrow, the Ten of the City put to death Demaretos, a prominent citizen, in order to intimidate the Δ ςby this μ ο ῆ example. Kallibios, the Spartan harmost, along with the Peloponnesian troops and some of the Athenian cavalry were actively supporting the Ten of the City. Aristotle refers to the reign of the Ten of the City as a tyranny (41.2). In agreement with Aristotle, Diodorus (XIV. 33.5–6) reports that the Ten of the City were chosen to end the civil war amicably; but once in power, they set themselves up as tyrants and secured aid from Sparta. In theAgainst Eratosthenes (XII.58–60), Lysias, while inveighing against Pheidon, a member both of the Thirty and of the Ten of the City aswell as anassociate of Eratosthenes, gives a similar portrait. He declares that Pheidon was selected to reconcile the men of the City andthe menof the Piraeus, but travelled to Sparta in order to obtain aid. Nepos (III.1) and Justin (V.10.5) simply state that the Ten of the City exercised the same cruelty as the Thirty; Lysias (XII.55) accuses them of being far worse than their predecessors. Only Xenophon depicts the Ten of the City sympathetically, but he alludes to them specifically only once after their assumption of power. They, in conjunction with the hipparchs, looked after the men of the City who were upset and distrustful of one another (II.4.24). Xenophon simply says that the Ten of the City were elected one from each tribe, not that they were appointed to make peace. In his narrative, it is not the Ten of the City, but the Three Thousand whosent emissaries to Sparta for help (II.4.28). The weight of the ancient testimony supports the villainous character of the Ten of the City against Xenophon’s brief anddiscreet portrayal. The question, whether or not the Ten of the City were excluded from the amnesty, is complicated by Aristotle’s notice that the original Board of Ten was replaced by a second Board of Ten led by Rhinon (38.3). This Second Ten is praised for their goodwill to the Δ ς μ ο ῆ and is said to have presented their accounts under the restored democracy without being accused of misconduct by anyone of either faction, despite the fact that they had assumed power during the oligarchy. And Rhinon became a general soon thereafter under the democracy. Isocrates (XVIII.8) confirms that Rhinon wasindeed a member of the Ten of the City and reports that some of them attended the trial of Kallimachos which occurred after the restoration of the democracy. Their presence in Athens at this time indicates that either they were not excepted from the amnesty, or that they hadsuccessfully rendered their accounts. In either case, a far more positive picture of the Ten of the City is painted, more in conformity with Xenophon’s representation.

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Aristotle is the sole source for two Boards of Ten; no other ancient source even hints that this was the case. May Aristotle’s information be believed, unsupported as it is; or should it be cast aside as an error? Critics argue a variety of viewpoints. Some critics69 take Aristotle’s report at face value not questioning his authority, whereas others depend upon Xenophon’s silence to argue for just one Board of Ten. Attempts have been made to reconcile Aristotle and Xenophon either by assuming an error on Aristotle’s part or on the part of his source,70 or by identifying the second Board of Ten with another body of ten officials.71 The silence of Xenophon is certainly not a sound basis upon which to argue, for it hasbeen observed that he scarcely mentions the Ten of the City, and when he does, he has a tendency to spare them. Diodorus, Nepos, and Justin only summarily treat the reign of the Tenof theCity sothat their silence cannot becredibly cited in support of Xenophon. Andocides and Isocrates cannot be expected to have elaborated on this problem since this matter is not germane to the content of their particular cases. Lysias, however, makes a long excursus on the activities of the Ten of the City and concentrates upon Pheidon in particular. It is not surprising that Lysias too does not allude to a second Board of Ten, if Pheidon, his target, belonged only to the first Board of Ten. A second set of Ten, more moderate in outlook and without the services of Pheidon, would not have been relevant to Lysias’argument. 69 J. Beloch, Griechische Geschichte, III1, (Berlin 1922) 12. A. von Mess, “Aristoteles’ Ἀ η θ ἰαund die politische Schriftstellerei Athens” ‘ V. ιτε λ ο , RhM 66 (1911) 382–383. ν α νΠ ίω vonSchoeffer, RE, s.v. δ έκ , 2411. α 70 Busolt-Swoboda,᾽ GS, I, (Munich 1920) 79–80. Cloché, LaRest 184. Colin, Xenophon 79– 82. Jacoby, FGrH III, Supplement, Androtion, no. 324, frgs. 10–11, 137–138. There is considerable argument about Aristotle’s source for the second Board of Ten. Some mention 383) bases his argument Theopompus, others Androtion. Von Mess (RhM 66 [1911] 382– α ὶ κ α κ for Androtion and a second Board of Ten upon a passage in Harpocration: s.v. δέ ν ρ ῶ η θ ν ν τ έ νἀ δ ω ν το υ νλ σ λ τἀ ιντ ῶ ὴ νκα ρ ὶτ ὰτ ε ῶ νμ τ ι χειρο ᾽Ἀ σ η ς ε , π ἠ ο χ ῦ ν θ δο α δεκ , is interpreted asconς γ ῷ ῆ νὲξ ντ ῶ νἐ ᾽. The phrase, τ τ ἰω ο ρ δ νἈν κ ε ςε ῆ νἑξ ῶ α ὶτ ἰκ ἴρη the taining all the names of the oligarchs; but Jacoby says that the expression is neuter, “ sequence of events” . The argument of von Mess, however, should not be dismissed so ) reports Book III of Androtion again as his source for π ις λ ό casually. Harpocration (s.v. Μ the identity of Molpis. Also cited by Harpocration for both these entries is the lost Lysianic speech Concerning the Estate of Diogenes. It seems possible that Harpocration encountered these names in Lysias when he wasassembling his lexicon andconsulted Androtion for confirmation because he included a list of the names of the oligarchs. , 2375) argue for the private α τ 71 Ferguson (CAH, V, 371) and Lenschau (RE, s.v. τριάκον citizens dispatched by the men of the City to Sparta (X. II.4.36–37). Cloché (LaRest 184 , Mnemosyne, Notes on the Rule of the Ten at Athens in 403 B.C.” n. 1) and A. Fuks (“ Series IV, 6 [1953] 199) prefer the Board of Twenty set up as a provisional government after the restoration of the democracy (And. I.81) which waspresumably composed of ten men from the City Party and ten menfrom the Piraeus Party. Levi (ComAr, II, 341) speculates that Aristotle confused the ten reconcilers (38.4) sent from Sparta with a second Board of Tenat Athens.

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The solution may be that only one Board of Ten existed, but that its membership changed.72 Such a proposal would explain the conflict in the sources on the nature of the Ten of the City. Those members of the original Board of Ten, who, although elected to conclude peace, prosecuted the warmore vigorously with Spartan aidandwhofollowed the path of the Thirty, were purged. They were replaced by individuals, such as Rhinon and Phayllos, who were determined to end the civil strife. Xenophon, who does not occupy himself with minute details and who writes sympathetically of the Ten of the City, did not deem this change in personnel significant enough to record in his history. There is no incontrovertible evidence to contradict Aristotle’s assertion that the Ten of the City were excluded from the amnesty.73 The Athenians were justified in preventing them from taking advantage of this provision without an accounting. The original Board of Ten belied their promise to seek peace and continued the battle against Thrasyboulos with support from Sparta. Once the hawkish andintransigent members of the Ten of the City had been removed, the reconciliation agreement wasconcluded. When the amnesty clause wasbeing framed, no distinction was made among the members of the Board of Ten, past or present, since all had held office under an illegally constituted government. Each member of the Ten of the City, if he so desired, could submit his accounts andbecome eligible for the amnesty. In all probability those members of the Ten of the City whohadbeen deposed would find their accounts procedure a perilous proposition and would flee to Eleusis or elsewhere. The others, such as Rhinon, who had been instrumental in bringing about the reconciliation, remained in the City and passed their accounts with little or no difficulty. μ η δ ὲπ ρ ςτούτο ὸ ς υ , ἐὰ νδιδῶ ς σ . ιν εὐ θ ύ ν α

Those persons who have been excluded from the amnesty may presumably receive forgiveness once they have rendered their accounts. If the requirement were merely the submission of accounts, it is curious that all officials of the oligarchy did not give their accounts in order to share in the amnesty. Although it is not explicitly stated in this provision, it is implied that individuals who decided to undergo their accounts procedure did so at some risk. If they were convicted of some malfeasance in office, they must have been subject to some form of punishment. Therefore, it was only after the oligarchs either passed On Aristotle, Ath. Pol., XXXVIII, 3,”PQ 23 (1944) 289–297. Kühn, WS 72 A. Dorjahn, “ 80 (1967) 38–39. Stahl, RhM46 (1891) 485. 73 Cloché, LaRest 259–262. Rhodes, AAP468–469.

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their accounts or paid the penalty for misconduct in office that they could utilize the amnesty to protect themselves from further legal entanglements arising from their tenure in office.74 For the more compromised oligarchs the benefit of the amnesty would have been offset by the perils in submitting their accounts; for them Eleusis would have been an attractive proposition. The less culpable could remain in the City, give an accounting, and take advantage of the amnesty, whether or not they incurred a minor penalty. Ultimate exclusion from the amnesty, in a sense, was left to the discretion of the oligarchs themselves.

εια ιε α ν ρξ ςἐ ῖἄ τ α ντο νΠ νἐ ὲ ῖςἐ νΠ ςδ ειρ εὐ ὲδοῦ ςμ ν θ ν α α ὑ ιτο ὺ μ ρεχ μ α . έν ο ή τ ο ις α π α ὰ τιμ ντο ῖςτ ιἐ ε τ σ ῷ ἄ ντ ᾽ἐ ςδ ρ ὺ α ιε ῖ, το This sentence is subject to a variety of interpretations. Kenyon75 believes that the Piraeus officials were to render their accounts before dicasts in the Piraeus and that the oligarchic officials of the City were ῷἄ to give theirs before juries in the City. He inserts ἐ σ ε ιbefore τ ντ μ έν α ρεχ ο τ ο απ ιςand explains its omission by the fact that α τ ὰτιμήμ the phrase occurred just before. Juries in both the Piraeus and the μ ρεχ εν ο ι. Kaibel76 asserts μ ό α τ απ α ή τιμ ὰ City were to consist of the τ that, while Piraeus officials were accountable only to the citizens of the Piraeus, the Thirty, the Eleven, and the Ten of the City were responsible to all citizens including the residents of the Piraeus anddoes μ ρεχ μ έν α ο ο τ απ α ή ιςto City-dwellers only. ὰτιμ ῖςτ ντο not restrict ἐ α α ν ιε ςἐ τ ρξ α ςἄ ῖ as the democratic νΠ ο ὺ ειρ Wilamowitz77 construes τ leaders in the Piraeus rather than the Ten of the Piraeus. Therefore, ῷ ἄ σ τ ε ιrefers to all magistrates of the oliντ ςἐ ὺ he concludes that το garchy and that they were to submit their accounts before juries in the μ ρεχ μ α τ εν απ ό ο ή α ιof both parties. The ὰτιμ City composed of the τ interpretations of Kaibel and Wilamowitz may be safely rejected. The Ten of the City only administered the City since exiles were in control of the Piraeus when they assumed power. Consequently, it would seem unjust if the Ten of the City were to give their accounts before dicasts which included citizens of the Piraeus. The ancient testimony does not intimate that the democrats ever appointed magistrates in the α ιε ρξ ῖἄ ς α ν ῷ Π τ ειρ α ςἐ ντ ο ὺ Piraeus, and one naturally associates τ 74 Kühn (WS 80 [1967] 36 n. 12) believes that if an oligarchic official were found guilty of some offense at his accounts procedure, he would not receive amnesty. If this were true, one must ask whyanyone would undergo the risk of giving account, if the slightest offense disqualified himfrom the amnesty. 75 ConstAth 125. Cloché, LaRest 268–271. 76 Stil 198. Krentz, Thirty 106. 77 Aristoteles undAthen, II, (Berlin 1893) 217.

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ρξ ςof the foregoing senςἄ ν α α τ ιέ α ςτ ω ο ῦΠ ε ιρ with the oligarchic τ ο ὺ tence. It would seem equally unfair if the Ten of the Piraeus had to undergo their accounts before citizens who had not been governed by them and who may have been less familiar with their activities. The view of Kenyon appears to be the correct one. It is most logical to unα ιε ῖ and το ῷ ῷ ἄ Π ςἐ σ ε τ ιρ ντ ε ςἐ ὺ ιas referring to the derstand τ ντ ο ὺ officials of the oligarchy listed in the previous sentence. Furthermore, ν... δ έ έreinforces the idea that the Piraeus officials the correlative μ were to be tried before tribunals in the Piraeus and the City officials by juries in the City. The accounts procedures were to be held in both μ ρεχ εν μ α ο ό τ α ι. π ή α ὰ τιμ locations before the τ The composition of these juries is problematic because the phrase, μ εν ο ι, is obscure and without specific parallel. ρεχ ό α απ α τ ὰτιμήμ τ One inference may be made without dispute. The dicasts will consist of members from both the men of the City and the victorious democrats since this provision does not exclude either faction from participating in these processes, but only restricts them to the τ ὰτιμ μ α τ α ή μ αwith ἀ η μ α η , “surety” π ο τίμ μ εν ο ι. Reinach78 identifies τίμ . ρεχ ό π α μ ή α ὰ τ τιμ α penalty” . Wilamowitz80 equates τ Others79 translate it as “ μ ο εν ι, citizens whocan produce rateable ρεχ ό μ εν ο ιwith ὅ α λ α π ό ρεχ π α π property. The interpretation of Reinach may be set aside at once since μ αdoes not have the meaning “surety”elsewhere, andthe deposit η τίμ of sureties by the jurors does not make sense in this context. The idenμ ε ν ρεχ μ ο εν α ό ρεχ ιwith ὅ απ ο τ ό α ιis diffiπ λ απ α ὰτιμήμ tification of τ cult to accept since, except for the similarity of the phrase, there is no ρ ε other evidence to support this assertion. The expression, ὅ λ π απ α μ εν χ ο ό ι, occurs four times.81 Twice in the Ath. Pol. (4.2) it refers to

the so-called Drakonian property classes, it appears once in IG I3, 21 (line 11)82 in an unidentifiable context, and Thucydides (VIII.97) uses it to describe the property qualifications of the constitution of μ ε ν ο ι ό ρεχ α απ λ π the Five Thousand in 411 B.C. Aristotle’s use of ὅ in reference to Drakon does not necessarily attest the antiquity of the phrase so that one cannot trace its origin beyond its appearance in IG I3, 21 where it occurs without a certain context. Furthermore, since this expression was current in 411 B.C. to describe property 78 Aristote: Larépublique athénienne, (Paris 1891) 70. 79 E.g., Haussoulier, Aristote 58. 80 Arist u. A., II, 217–218. Cloché, LaRest 268–271. Kenyon, ConstAth 125. Rhodes, AAP 470. Sandys, CAth 153. ο ι, occurs only here; and I cannot μ εν ό ρεχ α απ α τ ὰτιμήμ 81 To my knowledge, the phrase, τ ο ιother than those discussed here. ν ε μ ό ρεχ α π α λ π discover other instances of ὅ θ α ι. IG I3, 21 is dated to 450/449 B.C. and concerns relations betρέχεσ α π α λ π ὲh] ό ὰδ 82 Τ ween Athens and Miletos. The expression in this occurrence certainly refers to the obligation of Miletos to send military assistance to Athens.

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qualifications, it does not seem unreasonable to ask whyin 403 B.C. ο ι, if in fact these terms are equiμ εν ρεχ ό α τ α απ it became τ ὰτιμήμ valent. If the dicasts were to come from certain property classes, the composition of the juries would favor the oligarchs, because many democrats lost much of their wealth during their exile. In all likelihood the exiles would not concede such an important advantage which would probably result in the exoneration of many of the oligarchs at their accounts procedure. There is some evidence to support μ αas meaning penalty. Accounts procedures fall under the cateη τίμ gory of δίκ η α τ α ιτιμ ί, suits in which the jurors fix the penalty.83 The μ α τ απ ρεχ μ ή α εν ό ο ι, may be dueto the τιμ ὰ singularity of the phrase, τ uncertain state of the laws andthe courts upon the restoration andmay thus reflect the need felt by the authors of the reconciliation treaty to reassert the right of the juries to estimate penalties at accounts procedures.84 Consequently, any official of the oligarchy who chose to render his accounts would appear, whether in the Piraeus or in the City, before juries composed of men from both factions who were authorized to mete out the appropriate punishment. ς . ςἐθ ν τ α ο ε έλ ἴθο ε ῖντο ὺ ςἐξοικ ω ὕ τ It is unclear whether this phrase refers to the emigration regulations ᾽ as a whole or to the clause which immediately precedes it. Part of the ἰθ, whether it represents difficulty hinges on the interpretation of ε ε ἶτ αor εἴτ . Kenyon85 identifies εἰθas ε ε and concludes that this ἶτ α᾽ phrase concerns the emigration provisions which have preceded. But if ᾽ misplaced and would be less this were the case, the expression seems confusing if it followed the provision concerning the right to hold office in the City after reregistration in the City and preceded the regulations concerning murder trials. It is more sensible to associate this phrase with the amnesty clause. Cloché86 also identifies ε ἰθas , but interprets the expression differently. He asserts that some of ε ἶτ α the officials of the oligarchy, although they had submitted their ᾽accounts and had therefore received the amnesty, might still desire to emigrate to Eleusis to avoid harassment. This proposal seems rather 83 This applies to suits arising from the non-financial conduct of an official. There were prescribed penalties for financial maladministration. For accounts procedure, see: J. Roberts, 18. Accountability inAthenian Government, (Madison 1982) 17– 84 Krentz (Thirty 106–107 n. 13) argues against this interpretation, stating that, if the phrase , it would merely confirm existing practice. After the manipmeant “assessing a penalty” ulation of the laws andlawcourts by the oligarchy, it is clear that the state of the laws at this time was chaotic as evidenced by the legislative commission set upfollowing the resto84) and that there wasa need to reestablish the preration of the democracy (And. I.81– oligarchic custom.

85 ConstAth 125. 86 LaRest 272.

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farfetched because, had the oligarchs been afraid for their safety, they would have proceeded to Eleusis without submitting their accounts. ἴτ εand would insert μ ήafter το ς , Blass,87 on the contrary, reads ε ύ . or let them emigrate who do not wish to render their accounts” “ The option to resettle in Eleusis, however, was not a penalty, but a ή ,“ ἴθwithout the μ or let those choice. It seems better to assume ε ςalludes to the members of the ο ύ . Τ emigrate who wish to do so” ᾽ earlier regulations pertain to groups excluded from the amnesty. The the Three Thousand and any others whohadremained in the City, and this clause extends the opportunity to emigrate under the same conditions to the leaders of the oligarchy.

α τ αἃἐδανείσ μ νἑκα νπ ο ὸ ό ςἀ λ ρ ε ο π τέ ο α ν υ τ οε ἰςτ ὰδ ὲχρήμ τ . ρ ίς ω δο ν α ιχ ῦ The Ten of the City borrowed money to prosecute the war against the men of the Piraeus and the amount seems to have been substantial, one hundred talents.88 The democrats were also obtaining loans from outside.89 The provision was designed to regulate the repayment of these debts. It stipulates that ἑκα ςwill pay the loans back ο ρ υ τέ separately. On the surface this word connotes the émigrés to Eleusis and theCity-dwellers. The question, however, is more complex. There were not two factions but three: the new residents of Eleusis, the victorious democrats, and any members of the oligarchy or Three Thousand who chose to remain in the City. This complexity raises many more questions. Were the oligarchs or oligarchic sympathizers who remained in the City obliged to contribute to the war debts of the democrats or the oligarchs based in Eleusis? How was it deter-

mined who belonged to which faction? How would they repay their debts and what were the finances of the different parties involved? The repayment of these loans will be discussed later when the application of the reconciliation treaty is examined.

ίω α ίαἈ ε ν ιτ ν, (Leipzig 1903) 63. Followed by Rhodes (AAP 471). λ ο “Π θη ” ἴτ εis contrary to good linguistic Against this reading it maybe objected that uncorrelated ε usage, yet it is not without precedent. For examples, see: J. D. Denniston, TheGreek Par508 n. 1. ticles2, (Oxford repr. 1978) 507–

87 Aristotelis:

88 D. XX.11–12. Lys. XII.59; XXX.22. Isoc. VII.68. Plu. Lys 21.2. X. II.4.28. 89 D. XX.149. Lys. XXX.22; Against Hippotherses line 168. Plu. Moralia 835F.

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LYSIAS: AGAINST HIPPOTHERSES Lines 38–48 η κ ντ ντ νσ ῶ ῶ ν θ ῶ υ κ ελ σ ευ ο υ ὲ ὰμ νπ μ ρ επ έ α ν ατο ςἐωνημέν ὺ ο ς υ ς[κ α ]ο μ τ όν θ ίζ ε σ τελ θ α ςκα ι, ὺ ο τ α τ α ]ρ [π ὲἄ δ ὰ ,τ ε ιν ἔχ Confiscated property probably posed the most vexing problem for the authors of the reconciliation treaty. No matter what solution they reached, it was bound to be inequitable in some way either to the returning exiles or to the men of the City whohad purchased this property. Any attempt to return property would require some bureaucratic machinery whereby the claimant would have to establish ownership prior to the confiscation and the purchaser would have to be compensated in some manner.90 The complexity of this issue wasgreat, and its potential for undermining the spirit of the reconciliation was foreseen before the return of the exiles since regulations concerning property confiscated during the oligarchy were included in the treaty. The sole evidence for the clauses dealing with property comes from the fragmentary Against Hippotherses of Lysias. Aristotle and the other ancient sources are curiously reticent about thismatter. It seems that the ῆ κ α θ ι were liberally mentioned throughout the speech because ν σ υ the word certainly occurs twice and perhaps a third time.91 At this point it is not the intention to analyze the speech in detail, but to

aspossible, the substance of these regulations. Individuals who had purchased confiscated goods will retain possession of them, and any property which had not been auctioned off wil revert to its original owner. As the following clause makes clear, this provision only involves movable property. Presumably, the original owner would have to establish undisputed title to these unsold goods before regaining possession of them. Acceptance of the reconciliation agreement meant a renunciation of all legal claims to movretrieve, insofar

ables confiscated and sold by the oligarchy. There may have been a provision whereby the exiles could repurchase their goods for the amount of money paid by the buyer, provided that he were willing to sell. Such a clause would prevent profiteering on the part of persons who had bought confiscated property cheaply and who then later attempted to sell it back to the original owner at an inflated price. There would be no obligation to resell, unless the buyer desired to do

90 Harpocration (s.v. σ ν ύ δ ο ικ ι) reports that there was a special board created after the restoration of the democracy to handle the many disputes resulting from the confiscation of property during the oligarchy. Harrison (LOA, II, 34– 35) believes that their function waslargely administrative, to look after the State Treasury. The syndics apparently hadjurisdiction over cases not only between private citizens, but also when the State hadaninterest in the case at issue. η[κ- - - - - το θ 91 Συ]ν ς- - - - - [ἀ υ ο ςνόμ [ὺ ε(lines 127–129). The pertinent proviτ α ό η]κ κ sions of the treaty mayhave been read to - thejury.

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so. As inequitable as this arrangement may seem, it was the quickest and most effective way to minimize ill-feeling and interminable legal disputes which might threaten the reconciliation. Aspointed out above, these terms were agreed upon by the exiles before they returned as a necessary precondition for their restoration. ς ] κ , [ἃ α έν ο ὶα ἱ συνθῆκα , ι ]τ ῆ ν[ο ὔ ᾽οἰκία νκεκτημ ς , ο ο ο ὔ ὖ τ τ εγ [σ ]α π ]ι δ ῶ ο [ὲ ὲἂ νδ ν...νδ α σ [τ ῦ σ π εδίδο ο θ ινἀ ε]λ ο τ ῖςκα ο ... τ

ε ρα .

Not all confiscated property remained in the hands of the purThe reconciliation treaty ordains that immovable property, such as land and houses, will be returned to their former owners (cf. Isoc. XVI.46). At this point the text becomes too fragmentary to restore with any certainty. Most commentators interpret what follows . If along the lines of Gernet and Bizos,92 “pourvus qu’ils payassent” this inference is correct, it raises questions which cannot be answered in the present state of the evidence. Must claimants pay the full price or a fraction thereof in order to recover this property? Not all the exiles would have the amount of money which Lysias seemed to possess in order to be able to buy back their land and property. Consequently, were they to be deprived of their immovable as well as movable property? Furthermore, what happened in the case that immovable property in question had been bought by the oligarchs, or the emigrants to Eleusis? Could the previous owners regain their property in this situation or did the oligarchs and the émigrés retain ownership? chasers.

XENOPHON II.4.38

ᾦ ή ς, λ ςἀ ο υ λ ρ λ ὸ η ὲ νμ νἔχ ν ςπ τ ε ινὡ ερή ξ φ α νἐ ο ἱδ ὲδιήλλα The immediate purpose of the reconciliation agreement was to end the hostilities between the ᾽men of the City and the exiles. ηamong the articles ν ή Although Aristotle (38.4) does not place εἰρ of the reconciliation treaty, the evidence points to only one agreement which established peace and terms under which the two factions ςis diffiυ ο λ ή λ λ would come together again. The interpretation of ἀ cult since, strictly speaking, it refers only to the City Party and the democrats who negotiated the treaty with Pausanias. Did the oligarchs ε ἰ

92 LysDis, II, 253. B. P. Grenfell and A. S. Hunt (POxy, XIII, 69) propose [ὦ ὴ ν ἀ π ο δ ῶ [σ ]ιand do not speculate what the rest of the sentence might mean. J. H. Lipsius (“ Lysias’ Rede gegen Hippotherses und das attische Metoikenrecht” , Berichte der sächsiή ν π ο εἀ σ δ ῶ ν τα ιμ ι[τ νγ schen Gesellschaft der Wissenschaft 71 [1919] 3– 4) suggests ἐά Le disand explains that the exiles could buy back their immovable property. P. Cloché (“ cours de Lysias contre Hippotherses” , REG 23 [1921] 32) asserts that immovable property wassimply restored to its former owners without compensating the buyer.

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and their followers who had already gone to Eleusis number among them? The authors of the reconciliation agreement must have thought so because it acknowledges the presence of the oligarchs in Eleusis and even grants to them the opportunity to take advantage of the amnesty and live once again in the City. The question remains open, however, whether or not the oligarchs felt bound to respect an agreement which they played no part in negotiating. The answer to this question might provide an explanation for the events of 401/400 B.C.

ιδ α ὲἐ ν νἕκασ υ ιέ π τ ὰἑα π ῶ ὶτ ἀ τ νπ ο ριά λ ὴ ντ ν ῶ κ ο ν τ τ ακ α ὶτ ν ῶ α ιε ρξ ῖἀ β ά κ ν ακ τ ἕν δ α ὶτ ω νδέκ νἐ νΠ ιρ ε ῶ α . ὶτ ιδ Cloché states that ἀ ὲἐπ ὰἑα α ν υ ιέ τ π νἕκασ ῶ νmeans at the τ ο very minimum that the exiles may return to their homes; andhe speculates on the possibility whether this expression may possess a more extensive connotation, a recovery of lost property and civil rights by the exiles.93 Dorjahn94 believes that this phrase implies a restoration of confiscated property; and Kühn95 says that this provision, in addition to its basic meaning, indicates a return to all the rights of citizenship for the democrats. In the Against Hippotherses Lysias reports that movable property which had already been auctioned off would remain in the possession of the new owner and that any unsold property would revert to its original owner. Immovable property was restored to its former owners provided that they pay something for it. Therefore, this phrase cannot mean a full restoration of property, nor does it necessarily indicate a return of land and houses. Nor does it imply that all the exiles were to recover their citizen rights, for the proposal of Phormisios makes clear that, after the restoration of the democracy, the issue of citizenship was far from settled. This expression occurs elsewhere in Xenophon’s narrative of the civil war(II.4.31). After the skirmish with the men of the Piraeus, Pausanias sent emissaπ ν ιέ α ιἐ π ries to the democrats to urge them to go home (ἀ ὶτ ). ὰ ἑα ν υ τῶ In this passage there is no intimation of a broader meaning which includes a restitution of property and civil rights, but the expression simply means that the exiles should return to their homes. This clause of the treaty does not apply exclusively to the democrats, but also encompasses those individuals who may have followed the oligarchs andwhomayhave repented of their decision. The Thirty, the Eleven, and the Ten of the Piraeus were not permitted to return to their homes. Their exclusion is not at all surprising since they were ultimately responsible for the civil war, and their pre93 LaRest 244. 94 Forgiveness 15, 25–26. 95 WS80 (1967) 35.

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sence in the City might threaten implementation of the reconciliation agreement. They did retain the right to submit their accounts later on and to enjoy the amnesty. Since the Ten of the City were residing in Athens at the time and had helped to bring about the reconciliation treaty, they were not prohibited from living in the City. They could, however, emigrate to Eleusis if they so desired. β ο ῖν τ οτ ν ῶ ο ἐ ςφ ξ ἄ ε ἰδ σ ε ς έτιν τ ξ ε , ἔδο ε ω ναὐτο λ ῖςἘ ευ σ ῖν α κ α τ ο ι-

κ εῖ ν

.

Xenophon does not relate in detail the regulations concerning the right to emigrate to Eleusis, but only states it as an alternative and supplies a motivation for it (cf. D.S. XIV.33.6). Oneshould not imbue ξ ε νwith its technical sense as introducing a decree, “ ο ἔδ it was resolved” , but with its general meaning, “ it seemed best”(cf. And. I.81), since the evidence indicates that the reconciliation treaty was never transformed into a decree or a series of laws. XENOPHON II.4.43 η μ μ σ ν ὴ ὴ ν ή ικ σ ςἧμ ε α ιν ο κ ςὅρκ υ ν , ό τ ε α σ κ α ὶὀμ

Xenophon mentions the amnesty not in connection with the restoration of democracy in 403 B.C., but with the fall of Eleusis in 401/ 400 B.C. when the civil crisis was finally resolved. It is curious in his description of the amnesty, he fails to append the proviso which excludes the leaders of the oligarchy contingent upon the submission of their accounts. Kühn96 explains this omission by asserting that after the fall of Eleusis, this clause was no longer applicable since none of the oligarchs were left andthe Ten of the City hadpresumably rendered their accounts. It is not known, however, howmany oligarchs perished at Eleusis; and it does seem certain that some of them survived and sought refuge outside Attica. Andocides in 399 B.C. quotes in part (I.90) those oaths to which Xenophon is alluding, andthey still specify groups excluded from the amnesty. Xenophon’s silence should be ascribed to his habitual indifference to particulars. One might cite in η σ ν ικ ε ῖν , κ α further support of this assertion that he does not qualify μ η ν λ ρελ υ ῶ θ ό νπ α τ unlike Aristotle and Andocides, with τ ῶ ω νor τ γ εν γ η μ ε έν ω ν . ANDOCIDES I.90

α ν τ ή σ ωτ νπ η ῶ ντ σ ο λ ντριάκο κ ικ ὴ α ιτ ῶ λ νοὐδε ῶ ν ν ὶπ α κ ὶο ὐμ ς ῆ ςδιδό α ιτ ν ῃεὐθύ ν α ὶτ α νἕνδεκ λ ῶ κ έ νἐθ ςἂ νὃ ω τ ὲτού δ ὐ ,ο α

εν . ρξ ςἦ ςἧ ῆ χ ρ ἀ 96 WS80 (1967) 39.

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ς μ ο ῆ Andocides purports to quote from the oaths97 which the Δ swore upon the restoration of the democracy in order to promise to abide by the reconciliation agreement. Isocrates (XVIII.20) attests

that they existed in some form for consultation by the public. There is no reason to challenge the substance of this quotation nor its supposed date. Its language is similar to Aristotle’s formulation of the amnesty with the exception of the groups excluded. ANDOCIDES

I.91

μ α ι ἔνδειξ ρ ν ο ρ ό γ νἕν ὴ τε ινο ε κ ατ α ὶο κ ὐ ὐδέξο γ ω δ νπ ῶ ὲἀ π α γ γ ε εν η μ έν ω ν ,π λ ὴ ντῶ ν φ υγ ό ν τ ω ν . η σ ή ικ ν σ α η φ ω α κ μ κ α ὶο ιο ιδ ὲκ μ α ὰ ῳπ ὐμ τ , ο είσ α ῦ ι, ψ ο ὐ δ ὲἄ λ λ έν ςνόμ ο ς υ ο . υ ςκεῳ ὺ ο τ

The fragments of the bouleutic and heliastic oaths preserved by Andocides are more difficult to interpret. There is nothing specific in their formulation to link them directly with the reconciliation treaty of 403 B.C. and the amnesty clause in particular, except by implication. They are cited in connection with those oaths which the Athenians swore to adhere to the reconciliation agreement. It seems equally plausible that these lines quoted by Andocides were added to these ὰ τ α oaths after the decree of Patrokleides in 405 B.C. The expression, κ ς , of the heliastic oath suggests a period when the ο υ ςνόμ ςκειμέν υ ο ο ὺ τ law code was relatively stable, either just prior to the establishment of the oligarchy or sometime subsequent to the restoration when the revision of the laws was nearing its conclusion or had reached its end, but not immediately after the return of the exiles when the laws were ν γ ό υ in a state of confusion. Equally ambiguous is the identity of the φ νof the bouleutic oath. Grosser98 defines them as those persons τ ω banished by the former democracy. Stahl,99 before the publication of the Ath. Pol., believed that they were the emigrants to Eleusis, but afterwards connected them with the oligarchs and their supporters who fled from Eleusis in 401/400 B.C. and were too afraid to return to Athens.100 MacDowell101 does not decide one way or the other; he asserts that they are either those individuals excepted from the decree of Patrokleides or the oligarchs who retired into voluntary exile after the fall of Eleusis andwere not included in the oath until this time. The two alternatives need not be mutually exclusive. It seems more likely . 97 It is evident that the oaths areonly partially quoted since all begin with κα ί 98 Amnestie 18. 99 RhM46 (1891) 279. 100 RhM46 (1891) 486. Cloché, LaRest 274–276. 101 Andocides 131.

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that these additions to the bouleutic and heliastic oaths were made after the decree of Patrokleides since the oligarchs were never formally banished nor was the clause concerning the submission of accounts ever revoked. The oligarchic exiles, however, didgointo a self-imposed exile after Eleusis lost its independence,102 and therefore, de facto came under the category of φ γ ν ό τες.103 Of course, the Council could υ ήagainst anyone of the officials of γ γ π ω α receive an ἔν ιςor an ὰ δ ειξ the oligarchy, if he returned to the City andhad not been amnestied before by passing his accounts. ISOCRATES XVIII.20 η νἀ ή φ δ ιεισ ρ ντο ρ ῶ ςἐνδείξα η κ ῶ νδια ὺ θ ν σ υ ςἢ ν ν α ή τ α ςἢφ α ν τ ρά ς ξ , α ν ν π το ιο α τ ν ν ιτ ῶ τ ω λ ύ ω τ λ ἄ ν τ ῶ The speaker states that among the articles of reconciliation wasan explicit provision exculpating informers for their role in the regime of the Thirty.104 The ancient sources attest that there were a significant number of informers.105 There is, however, no corroborating evidence to confirm the testimony of the speaker. Such a clause would have been redundant since the amnesty would have protected them from prosecution arising from their fallacious depositions. It is, perhaps, noteworthy that the speaker, after making his claim, has the oaths accompanying the reconciliation recited instead of the relevant clause of the treaty. One might infer from this fact that no distinct provision regarding informers existed, but that he is merely alluding to the amnesty.

102 For argument that the banishment of the Thirty from the cities of Greece belongs to the period subsequent to the fall of Eleusis, see: T. Loening, “ TheAutobiographical Speeches , Hermes 109 (1981) 285 n. 16. of Lysias andthe Biographical Tradition” 103 Dionysius of Halicarnassus (Lys 32) in his hypothesis to Lysias XXXIV alludes to another group of exiles. It is clear, however, that this group is not composed of individuals who had been formally banished. He reports that after the restoration of the democracy, Phormisios proposed that the exiles should return and that citizenship should be limited to land-holders. Cloché (LaRest 280–281) reasons that the exiles refer to the menof the City who had left Athens immediately prior to the reconciliation, fearful of the consequences of thereturn of thedemocrats. Gernet andBizos (LysDis, II, 207) believe that the exiles are those persons whohadbeen banished by the Thirty. There is no need, however, to specify one group or the other since the import of the phrase is general. It alludes to all whohad fled Athens, democrats, members of the Three Thousand, emigrants to Eleusis; and Phormisios includes these menupon their return in hisproposal to restrict citizenship.

104 Accepted by Dorjahn (Forgiveness 24) andRhodes (AAP 468–469). 105 Lys. VI.45; XII.48; XIII.1–61.

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3 ISOCRATES XVIII.2– ρχίν μ νἔθ ο ςἈ ο υνό ε ἰπ ν ό τ ο εσ ς ρ ὰτο ὺ α ιπ α τ ιςδικά ζη ντ θ , ἄ ε ῷφ ψ ς ρά , ἐξεῖν α α ιτ γ υ σ κ ο ρ ρα θ α ὅ εύγ ι, το ιπ ν τ α ς ο ςδ ν α ο τ ὺ ρχ ᾽ἄ ρ ὶτού π ε ρῶ τ νεἰσά ο τ ο υπ ρ α γ ντ ρα ρ ο νπ ὸ α τε ρό ὲπ νδ ι ε γ ε ιν , λέγ ψ μ ά εν ο ν , ὁπ ςδ ό ρ τε ο θ ᾽ἂ ῇ νἡττη ,τ , ὴ ν ἐπ β ε ω λ ία ν ειν φ ε ίλ ὀ

The law of Archinos, strictly speaking, is not part of the reconciliation agreement, though it waspromulgated to safeguard it. It permits a defendant to attempt to prevent the admission of asuit onthegrounds that it violates the treaty. If the losing party at this process does not obtain one-fifth of the dicasts’ votes, he must pay one-sixth of the amount of money at stake. This legislation is the first recorded instance ή ρ α φ , although it need not have been the innovation of γ ρ α α of π Archinos.106 The novelty of his measure may be the fact that the order of speakers is reversed; namely, the defendant spoke first. G. M. Calρ α φ ή γ ρα houn107 observes that no extant court speech in which π α is concerned deals with a public case and concludes that this process was reserved for private suits only. The exact wording of the law cannot be recovered since Isocrates summarizes rather than quotes it. Nor can its date be pinpointed with accuracy.108 It was probably passed sometime after the restoration of the democracy when it became evident that something more than oaths was necessary to promote adherence to the reconciliation treaty and to curtail a proliferation of private suits based on events which occurred during the oligarchy. In all probability this legislation postdated the incident which Aristotle (40.2) relates. Archinos persuaded the Council to execute without trial an individual who had violated the amnesty, though it is not specified how he did so. The presumption is that this person brought suit contrary to the amnesty clause. Isocrates (XVIII.2) declares that Archinos proposed this law in response to citizens who were acting like sycophants or trying to upset the reconciliation agreement. Kenyon and others,109 apparently putting their faith in Aristotle’s statement that there was no further transgression of the amnesty once this man had been put to death, believe in the priority of this legislation. If ή , see: S. Isager and M. H. Hansen, φ ρα γ ρα α discussion of the development of π Aspects of Athenian Society in the Fourth Century B.C., (Odense 1975) 123–131. ή , and the Lawof Archinus” ρα φ γ ρα α ρ ,π ία , CP 13 (1918) 183–184. Cf. Isager ρτυ α μ 107 “Δια andHansen, AthSoc 129–130. The Chronology of Athenian Speeches and Legal Innovations in 108 D. M. MacDowell (“ 401–398 B.C.” , RIDA 18 [1971] 269) proposes late 401/400 B.C. or the year following ή . Hebases his conclusion on the date of Isocrates φ ρα γ ρα α for the introduction of the π XVIII which he assigns to 400/399 B.C.; however, an earlier date is indicated for this speech. 109 ConstAth 126. Dorjahn, Forgiveness 38. Sandys, CAth 154–155. 106 For a

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their interpretation were correct, as Cloché110 points out, the person ρ α α victimized by this sycophant could have easily invoked the π γ ρ α φ ήto contest the admissibility of the suit; and the drastic action of Archinos would have been unnecessary.

110 LaRest 300–301.

Chapter

II

THE APPLICATION OF THE RECONCILIATION AGREEMENT

The aim of this chapter is to collect and assess all material which relates to the application of the individual articles of the reconciliation agreement in order to determine how they are interpreted and how closely the Athenians adhered to them. For many of the provisions, especially those which governed relations between Athens and Eleusis, there is no evidence which discloses anything about their enforcement. This fact is attributable in large part to the brief independence of Eleusis and to the general dearth of sources for this period. For the study of the remaining provisions, one must rely upon desultory allusions which are often unsubstantiated by other authors and legal actions whose nature is sometimes uncertain andwhose verdicts in most instances are unknown. As in the case of the property regulations, because of their incompleteness and the paucity of information, one can suggest little more than the problems associated with their application. Each clause of the reconciliation treaty will be discussed separately in the order in which they are treated in the preceding chapter. Omitted from consideration are those provisions for whose application evidence is lacking: regulations concerning the sanctuary in Eleusis (Arist. 39.2), travel restrictions between Athens and Eleusis (Arist. 39.2), contriχ ικ ν(Arist. 39.2), the purchase of housing by ό μ α μ υ bution to the σ émigrés in Eleusis (Arist. 39.3), and the holding of magistracies by émigrés upon their return to the City (Arist. 39.5). The following chapter will be devoted entirely to an examination of the amnesty provision.

1. Eleusinian Autonomy andthe Property Rights of the Émigrés Nothing whatever is known about this independent community of Eleusis, nor does a detailed narrative of its fall appear among the ancient sources. They merely allude to it in one or two sentences (X. II. 9). Prior to the discovery of the Ath. 4.43, Arist. 40.4, Just. V.10.8– Pol., the elimination of the oligarchic republic in Eleusis wasbelieved to have followed closely upon the restoration of democracy in 403/ 402 B.C. Aristotle, however, provides a precise date, the archonship of Xenainetos (401/400 B.C.), some two years after the return of the

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exiles from the Piraeus.1 More difficult to address than the date of the fall of Eleusis arethe questions when and why the troubles began between Athens andEleusis which culminated in the ambush of the oligarchic generals and the return of the emigrants to Athens. Since no author supplies the particulars of the events leading to the confrontation of the two communities, it is impossible to determine precisely when the tensions commenced or howlong the intervals were between each event. Xenophon and Justin, however, are in complete agreement that the provocation came from Eleusis. From the former (II.4.43) it is learned that the emigrants in Eleusis were hiring mercenaries, and the latter (V.10.8) gives the more general account that the tyrants made war on the Athenians suddenly. One receives the impression from Xenophon, although he may have compressed the series of events somewhat, that the hiring of mercenaries, the murder of the oligarchic generals, and the reduction of Eleusis occurred in rapid succession.2 Similarly, Justin portrays the action as proceeding quickly; the oligarchs initiate their actions suddenly, the generals fall victim to the Athenian plot, and the emigrants are recalled to Athens. This evidence, meager as it may be, does not allow the supposition that hostilities began soon after the reconciliation treaty, nor that they were protracted. Consequently, one may conclude that late in 402/401 B.C. or early in the following year, the oligarchs took their military actions and that in response the Athenians set the trap for the oligarchic commanders. Afterwards the emigrants were persuaded to return to Athens. It is unclear what form the provocation from Eleusis assumed. Justin characterizes the hostilities as war (bellum), whereas Xenophon only mentions the employment of mercenaries. Cloché,3 in an attempt to reconcile the accounts of Justin and Xenophon, suggests that there may have been incursions on the Athenian frontier which prompted the Athenians to respond, but that Xenophon, considering them too insignificant to relate, believed, on the contrary, that the engagement of mercenaries presented the real threat to peace. No reasons are given by the ancient sources to explain the actions of the oligarchs. Justin’s statement (V.10.8) that they were outraged at having been exiled is specious and may be dismissed as rhetorical embellishment. The oligarchs had not been banished to Eleusis, but 34) who, although he does not receives some support from Diodorus (XIV.32– mention the fall of Eleusis specifically, places the restoration of the democracy in 401/400 B.C.; he or his source may have delayed his account of the return of the exiles until the year when the strength of the oligarchic forces wasbroken once andfor all. 2 Colin, Xenophon 89. 3 LaRest 284–285 with n. 4.

1 Aristotle

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had prepared it as their haven in the event of their overthrow. After the conclusion of the reconciliation agreement, many of their more ardent supporters were permitted to emigrate to Eleusis under the protection of this treaty. Noris there any evidence to suggest that the conduct of the Athenians impinged upon the liberty of the emigrants. Justin (V.10.9) further implies that the oligarchs intended to restore themselves to power in Athens. It is unlikely, however, that the oligarchs were planning to reassume their former position in the City. A reentry by military means, if it were to be successful, would have required widespread support among the residents of the City; yet the evidence indicates that City-dwellers of all factions approved of the action taken against the oligarchs. Xenophon (II.4.43) reports that the Athenians marched en masse against the generals, and the speaker of Lysias XXV (9) reveals that some emigrants whohad repented of their decision and had moved back to Athens also participated in the expedition against Eleusis.4 Furthermore, the oligarchs would have needed the consent, if not the active support, of Sparta to regain the upper hand in Athens. Eleusis, however, seems not to have received aid from Sparta. This may be inferred from the fact that the emigrants had to resort to the use of mercenaries rather than rely upon Peloponnesian troops and that the Spartans did not intervene in any way to prevent the Athenians from reducing Eleusis. A more plausible explanation for the actions of the oligarchs exists; rather than seeking to reestablish dominion in Athens, they were interested in maintaining the integrity of the settlement in Eleusis. As Lehmann5 asserts, the reflux of emigrants to Athens must have undermined the strength of the oligarchic republic and in the minds of the oligarchs, at least, must have endangered their ability to safeguard their independence. If the theory that the emigrants or their hirelings made incursions on the Athenian frontier is correct, it suggests the immediate cause of the tensions between Athens and Eleusis. Nowhere in the reconciliation treaty are the borders between the two communities defined.6 Therefore, a disagree4 Frohberger and Thalheim (AusRed, I, 130) and Rauchenstein and Fuhr (ARLys, I, 110) μ έν ω ν , refers to individuals who ψ α ρα γ ο π α νἘλευσίν δεὰ ῶ believe that the expression, τ registered for emigration to Eleusis under the terms of the reconciliation treaty, but in actuality did not emigrate because of the measure of Archinos. As Cloché (LaRest 286 n. 2) points out, Archinos shortened the registration period, not the time allotted for departure once a person had registered. Therefore, since the participle is in the aorist tense, the phrase cannot allude to those people affected by the abbreviation of the enrollment period, but must mean “ . those menwhoregistered (and emigrated) to Eleusis” 5 Festschrift Stier 232. 6 It is not known howmuch territory outside its walls the community at Eleusis controlled. Since the emigrants were free to travel without restriction throughout Attica with the exυ , no further delineation of boundaries at first may have been deemed τ σ ception of the ἄ necessary.

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ment over boundaries may have developed which induced the oligarchs to engage mercenaries in order to help them protect the territory under dispute. The Athenians would have interpreted the seizure of land and

the employment of mercenaries as an escalation of the quarrel which necessitated a quick, yet unmistakable, response. The Athenians for their part must have felt threatened by the military activities of the oligarchs and must have contemplated with dread the possibility of a renewal of fratricidal conflict. As mentioned, the residents of the City were united in their opposition to the military provocation of Eleusis. Cloché7 postulates that some members of the Three Thousand who had elected to remain in Athens after the return of the exiles were pressured by public opinion or fear of reprisal to march against Eleusis, while others welcomed this occasion to attempt to bring back the emigrants in order to increase the oligarchic ranks in the City. The Three Thousand had voted to depose the Thirty and were therefore unlikely to be well-disposed to the oligarchs so that they probably viewed their actions with some alarm. Cloché’s reasoning may also be applied to those emigrants who had become disenchanted with life in Eleusis andhadreturned to Athens.8 Lastly, the democrats, some of whom had never surrendered the notion of a unified Attica, saw in the oligarchic aggression an opportunity to remove the danger which Eleusis, as an independent state on Attic soil, posed by its very existence. Thus, the diverse elements in the City had combined to oppose strongly the oligarchic settlement. As both Xenophon (II.4.43) and Justin (V.10.9) report, the oligarchic generals went to a conference andwere subsequently murdered. There can be no doubt that the ambush of the oligarchic commanders was premeditated by the Athenians. Justin specifically says so (per insidias comprehensi); and though Xenophon does not use the word , the conclusion to be drawn from his account is obvious: the plot” “ generals were treacherously seized and executed. The purpose of the Athenian deception may be deduced from the simile in Justin’s narrative: ut pacis victimae. By putting the oligarchic leaders to death, the Athenians intended not only to neutralize the immediate threat of war, but also to enervate the settlement in Eleusis once andfor all. The denouement of this episode was the peaceful reincorporation of Eleusis under Athenian control. Xenophon (II.4.43) reports that friends and relatives were sent to persuade the emigrants to return to 7 LaRest 285–286. Cf. Colin, Xenophon 89. 8 Perhaps this group hadanadditional motive forjoining the expedition against the oligarchic community. They mayhave been seeking to punish the oligarchs for establishing a repressiveregime inEleusis.

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the City, and Plato (Menex 243 e) states how moderately the Citydwellers made war on the emigrants andpaints in generous terms their homecoming. Lysias XXV (9), however, casts a shadow upon this amicable reunion and suggests that some coercion may have been applied. Not only were the generals slaughtered, but Eleusis was besieged. Had the emigrants not been convinced to return, might not Eleusis have been vanquished militarily or starved into submission? The implication is clear that Athens wasdetermined to reannex Eleusis. This compulsion in no way contradicts the fact that the oligarchic community waspeacefully reintegrated. Rather than subjugate Eleusis by violence, the Athenians chose to wait and use diplomacy, albeit

reinforced by the threat of military action, to achieve their goal. The Plato passage, sometimes considered to be rhetorical exaggeration or bitter irony because it ignores the plot against the generals, onthewhole accurately depicts the conclusion of the final chapter of the oligarchic conspiracy. The Athenians used restraint against the emigrants by electing to remove their leaders rather than overcome their settlement by military means. Furthermore, they exacted no vengeance from the emigrants and even reaffirmed the oaths of amnesty by which the Δ ς μ ο ῆ is said to have abided (X. II.4.43, Just. V.10.10–11). Does the execution of the oligarchic generals and subsequent reduction of Eleusis constitute a violation of the reconciliation treaty? The emigrants were granted independence, but implicit in this provision was a guarantee of Athenian sovereignty. Once the oligarchic leaders had taken military action, even though the threat posed may have been more potential than actual, the armistice wasbroken; andEleusis forfeited its assurances of security. The question becomes, whether or not the pressure applied by Athens on the emigrants after the death of the generals when the military threat had passed amounts to an infringement of the reconciliation agreement. The Athenians were within their rights to defend themselves and their property, but were they justified in taking the further step of beleaguering Eleusis? The ancients condemn Athens neither for the execution of the generals nor for the annexation of Eleusis, but portray the oligarchs as the aggressors. Modern commentators,9 while generally they deplore the ambush of the oligarchic leaders, vary on the question whether the fall of Eleusis wascontrary to the reconciliation treaty. One must assume that once the agreement had been violated by the oligarchs, the Athe9 Cloché (LaRest 291) and Grosser (Amnestie 43) assert that the fall of Eleusis did not violate the reconciliation treaty; Kühn (WS 80 [1967] 44) and Levi (ComAr, II, 349) argue to the contrary. All four critics, however, frame the question incorrectly in terms of the amnesty. The provision granting autonomy to Eleusis, not the amnesty is the one at issue.

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to respect Eleusinian autonomy andwere free to act as if a state of warexisted. The timing of Athens’bold move is attributed to the preoccupation of Sparta with Elis, the Anabasis, and the Persians in Asia Minor.10 There may have been an additional reason why the Lacedaemonians did not react to the fall of Eleusis. They may have come to view their former clients in Eleusis as a liability rather than an asset. Since the Spartans were involved elsewhere, peace in Attica would have been essential; and the oligarchs were seen to be causing disturbances. The nians were no longer obliged

restored democracy in Athens, insofar as it can be determined, had complied fully with the terms of its alliance with Sparta concluded at the end of the Peloponnesian War. Consequently, the Athenians may have been regarded as more reliable and valuable allies than the unpredictable oligarchic community in Eleusis. Without exception the émigrés were granted the right to exert full control over their own property and to enjoy its income. Yet it is known that some property of the oligarchic officials at least was con) was created to list the γ ε ῖς λ υ λ ο fiscated and sold. A special board (σ property of the oligarchs (AB, I, 304, 4–5). Harpocration (s.v. π μ ο π εῖα ), citing Philochorus as his authority,11 states that processional equipment wasprovided from the proceeds of the sale of the Thirty’s property. Recently the inscription recording the confiscation and sale of the property of the oligarchs has been identified.12 It dates to the archonship of Mikon, 402/401 B.C. (Stele I, lines 2–3), the year before the reincorporation of Eleusis. It is not clear, however, whose property has been offered for sale. There is evidence to indicate that the property of the Thirty andthe Eleven wasinvolved.13 Furthermore, it isnatural to assume that the property of the other officials excluded from the amnesty, the Ten of the Piraeus and the Ten of the City, wasalso encompassed by this action. If other officials under the oligarchy or some members of the Three Thousand were affected by this measure, it is not possible to determine it from the epigraphical testimony alone because of the scarcity of owners’ names preserved in the inscription and the paucity of the names of the menwho, outside the Thirty, held prominent positions during the oligarchy. Walbank14 exempts from confiscation the estates of the dead oligarchs15 andany who may have 10 Lehmann, Festschrift Stier 232. 11 No. 328, frg. 143, FGrH IIIB, 140. 12 M. Walbank, “ The Confiscation and Sale by the Poletai in 402/1 B.C. of the Property of , Hesperia 51 (1982) 74–98. the Thirty Tyrants” 13 Walbank, Hesperia 51 (1982) 92–94. 14 Hesperia 51 (1982) 94. 15 Of theThirty, Theramenes, Kritias, andHippomachos; of the Tenof the Piraeus, Charmides.

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rendered their accounts such as Eratosthenes and Rhinon, but this maynot be necessarily so. Only immovable property, land and dwellings, is listed on these stelai. Walbank16 conjectures that the sale of movable property was recorded separately on other stelai. This hypothesis appears unlikely for several reasons. While at least seven fragments of the inscription listing the immovable property have surfaced, not one part of this proposed second series of stelai has been uncovered. The Attic Stelai,1 7 a close chronological parallel, do not display a similar method of organization. As D. M. Lewis18 observes about the Attic Stelai, the η τ π α ω λ ί tended to deal first with the movables of the town houses and then the movables of the country properties. Afterwards they turned their attention to the real estate of town and country. Sometimes, however, movable and immovable property are recorded together (e.g., VI, line 53ff.). Unlike the two distinct series of inscriptions proposed by Walbank, the Attic Stelai form a discrete whole. In the Against Eratosthenes delivered at least one year later than this decree, Lysias (83), while speaking on the impossibility of punishing the Thirty adequately for the crimes which they hadcommitted, entertains the idea of confiscating their property. Hadthe property of the oligarchs been totally confiscated the year before, Lysias certainly would have been considered fatuous for suggesting expropriation of that which had already been seized. Therefore, it must be supposed that only a portion of the oligarchs’property wasconfiscated. The expression which Lysias uses, τ ρ ά μ , is sometimes beα ν ατ α ε τ ὰφ ρή ὰχ lieved to be equivalent to φ ρ ὰοὐσ ν ία , the technical term for imα ε there was no cutmovable property;19 however, as Harrison20 states, “ and-dried classification of property into visible’and ‘invisible’” . Perwhich is considered by haps this phrase is best interpreted as property ‘ public knowledge to belong to the oligarchs, whose ownership is unρ άwould inμ α ν τ ατ ε α ὰφ ρή ὰχ disputed.21 In this particular case τ clude all movables andperhaps some immovable property. Since the expropriation of property waspartial and consisted only of land and dwellings, this fact suggests that the confiscation wasnot 16 Hesperia 51 (1982) 96. Herelies upon the Philochorus passage for proof that the movables of the oligarchs had also been confiscated and sold. Yet, in a cautionary note (96 n. 57), he states that no such distinction canbe made with anycertainty from this reference. The Attic 17 Dated circa 415–413 B.C. For the text of the Attic Stelai, see: W. K. Pritchett, “ , Hesperia 25 The Attic Stelai: Part II” Stelai: Part I” , Hesperia 22 (1953) 225–299; “ (1956) 178–317; “Five New Fragments of the Attic Stelai” , Hesperia 30 (1961) 23–29. , Ancient Society and Institutions: Studies Pre18 “After the Profanation of the Mysteries” sented to Victor Ehrenberg, (Oxford 1966) 184–186. 19 Frohberger-Thalheim, AusRed, I, 60. Rauchenstein-Fuhr, ARLys, I, 50. 20 LOA, I,231. 21 Harrison, LOA, I, 231 n. 1.

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merely punitive, but may have been done for a specific purpose. From the Against Hippotherses (lines 45–48) it is learned that immovable property wasreturned to the exiles provided that they pay something. Did the exile have no recourse to recover his land, if it were in the possession of an émigré in Eleusis? Another reason may now be put forth for seizure of the oligarchs’ immovable property. The confiscation may have been made in order to make an exile’s land available to him for repurchase or to supply other property in compensation. What cannot be determined with certainty is whether the immovables recorded in the inscription represent all the land which the oligarchs owned or that which they had acquired cheaply or at no cost by confiscation during their tenure in power. If Lysias XII.83 is interpreted correctly, the latter alternative seems more plausible. Whether this measure was confined to the oligarchic leaders or applied equally to the émigrés who had bought confiscated immovables during the oligarchy is uncertain. Hadthis action been designed to give back to the exiles their land and houses, as appears likely, then it would have encompassed all possessors of immovables seized and sold under the Thirty who were not residing in Athens, irrespective of their having held high office during the oligarchy. Those individuals who had remained in the City after the restoration of the democracy andwhohad purchased confiscated immovables during the reign of the tyrants were presumably unaffected by this measure. In order to regain possession of their land from these persons, the exiles would have brought their claims before the syndics. The expedient of confiscation would have been employed only against people who were outside the control of Athens. The mechanics of the process, whereby this immovable property was expropriated, may now be reconstructed to a certain extent. The γ ε ῖςwere elected in order to make lists of the land anddwellλ ο σ υ λ ings to be returned to the exiles. Once this task hadbeen completed, the State then moved to confiscate the property in question. In view of the enormity of the project, it is not surprising that this action was taken over a year after the restoration of the democracy, since ample time would have been required to compile accurate records. Although those members of the Three Thousand who had chosen not to emigrate and who were in possession of immovables confiscated by the oligarchy were to be compensated by the exiles for the return of this property, the émigrés were not. Since they were outside Athenian jurisdiction, they could not take advantage of such an arrangement. Thus, the financial sacrifices which the reconciliation entailed would not have been borne by the exiles alone. As an important byproduct of this proposal, the depleted Athenian treasury would have

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been replenished in return for the State’s efforts as middleman in this transaction.

The date of the decree, 402/401 B.C., is significant. As mentioned above, the difficulties which preceded the fall of Eleusis are thought to have broken out suddenly andnot to have been protracted. Furthermore, it is conjectured that a border dispute mayhave been the source of the trouble between the two communities. It is now possible to postulate further. The Athenians confiscated and sold some parcels of land which the oligarchs considered to be inside their boundaries and not within Athens’ right to expropriate. In response the émigrés and their hirelings forcibly occupied this territory and defended it against Athenian attempts to recover it. The question, whether the confiscation and sale of this immovable property violated the reconciliation agreement, is complicated by the fact that two of its articles are at issue. Aristotle (39.1) states that the property rights of the émigrés were to be respected; yet Lysias (Against Hippotherses lines 38– 48) reports that land and houses confiscated by the oligarchs would revert to their prior owners on the condition that they pay, although movables were to remain in the hands of the buyers. At first glance, there appears to be a contradiction between these two provisions; but that need not be the case. The émigrés’ property which is protected was that which the reconciliation treaty legally recognized as theirs; namely, all goods which they owned prior to the oligarchy and all confiscated movables which they may have purchased during the reign of the tyrants. As the Lysias passage indicates, expropriated immovables were specifically excluded and were therefore not acknowledged to be the legitimate property of the purchasers. If the epigraphical evidence is interpreted correctly, then the seizure and sale of the immovables recorded in this inscription maybe viewed as a measure intended to enforce one clause of the treaty and not as an infringement of the émigrés’property rights. Consequently, Aristotle’s statement (40.3) that Athens, unlike other cities, upon reestablishing its democracy, did not make a redistribution of land holds true and maynot be dismissed as a glorification of the moderation of the restored democracy. The democrats did not aggrandize themselves by large-scale confiscations, but saw to it that immovable property, in accordance with the reconciliation agreement, wasrestored to its rightful owners.

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2. Registration for Emigration According to Aristotle (40.1), Archinos successfully diminished the number of days allotted to registration for emigration to Eleusis.22 He wasmotivated by a desire to detain in Athens the throng of the Thirty’s adherents whowere putting off their decision to emigrate: When the reconciliation treaty hadbeen concluded on such terms, as many aswhohadfought with the Thirty were afraid, andmany were intending to emigrate, but postponed their registration to the final days, as all are accustomed to do; Archinos, realizing their number andwishing to restrain them, subtracted the remaining days permitted for registration so that manywould be compelled jointly to remain against their will until they regained confidence.

This passage is cited as evidence that many members of the City Party, fearful of reprisal from the democrats andskeptical of the feasibility of the reconciliation agreement, were eager to settle in Eleusis.23 Aristotle, however, more narrowly defines the group affected by the ν υ επ ο as many as who had fought with (σ λ measure of Archinos, “ έ μ η σ α ν ) the Thirty” . Therefore, only those individuals who had been closely associated with the Thirty, such as the cavalry, were postponing their decision. Presumably, the less compromised members of the Three Thousand had already made their choice, to reside in thè

City. Consequently, while the action of Archinos pertained to a significant number of citizens, it was by no means directed against the majority of the City Party. The abridgement of the registration period must have occurred within the first few days after the return of the exiles so that chronologically it would have been among the first tests of the reconciliation treaty. Critics24 characterize this incident as arbitrary and a flagrant violation of the agreement. But had the men of the City perceived this action of Archinos as an infraction, the repercussions would have been severe. Their uncertainty and distrust would have been intensified; their confidence in the reconciliation treaty would have been undermined. Under such circumstances many people, not only those affected by the curtailing of the registration period but also others who had resolved at first to remain in Athens, would perhaps have departed for Eleusis without registering. There is no evidence, however, to suggest large22 How Archinos curtailed the registration period is unknown. Rhodes (AAP 473) suggests that he made a motion in the Assembly or persuaded those in charge of enrollment to refuse more names.

23 Kühn, WS80 (1967) 42. Lehmann, Festschrift Stier 224. Levi, ComAr, II, 345. 24 Cloché, LaRest 279. Kühn, WS 80 (1967) 42. Lehmann, Festschrift Stier 224. Rhodes, AAP 474.

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scale emigration to Eleusis. Furthermore, Aristotle (40.2) does not censure Archinos for his proposal, but on the contrary, praises him for it and his other acts which served to insure the success of the restored democracy. Therefore, the reduction in the number of days of the registration period must not have been generally viewed as a violation of the reconciliation agreement. Had the action of Archinos been a serious infringement, it is curious that the other sources do not report it at all. A different interpretation of the shortening of the registration period is required. The clause of the treaty which regulates registration and emigration to Eleusis is ambiguous; it does notclearly delineate whether the twenty days assigned for emigration were inclusive or exclusive of the ten-day enrollment period. If the twenty days were counted exclusively, the emigration period would exceed the sacred truce in force for the Greater Mysteries by two or three days. It seems likely that the time reserved for departure was reckoned separately from the registration period andthat Archinos sought to abridge the registration period by a few days in order to assure a safe andorderly journey for the émigrés under the auspices of the sacred truce. A number of the enthusiastic supporters of the oligarchy would have been retained in the City which not only would have lessened the strength of the settlement in Eleusis, but also would have created a greater political balance in Athens.25 The majority of citizens of either faction probably looked upon the action of Archinos as an adjustment rather than a violation of the reconciliation agreement.

3. Homicide Trials In contrast to many other provisions of the reconciliation treaty, a comparatively large amount of evidence exists regarding the murder clause from which one may form certain conclusions about its application. Within the Lysianic corpus two fully extant speeches along with allusions to two other prosecutions concern the political murders committed during the oligarchy. In addition, the reconciliation agreement is at issue in two further homicides mentioned by the sources. Suits initiated against members of the Thirty (Lys. XII; X.31) will be examined first, followed by actions undertaken against informers 57). Finally the immunity of under the oligarchy (Lys. XIII; XIII.55– Meletos (And. I.94) and Euthyphron’s suit against his father (Pl. e) will be explored. Euthphr 4 c– 25 Cloché, LaRest 279. Levi, ComAr, II, 346.

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Critical to the understanding of the Against Eratosthenes is its date. It has been commonly believed that shortly after the restoration of the democracy, Eratosthenes submitted his accounts at which time Lysias delivered the speech. As I have argued elsewhere,26 prior to the enactment of IG II2, 10 in 401/400 B.C., Lysias would have been prohibited legally from appearing in court in his ownpersona. Thus, the speech postdates the decree and, most probably, the fall of Eleusis. Given the later date of the trial of Eratosthenes, the question must be raised anew on what charge he was being prosecuted. One may

infer from the speech that Eratosthenes lived continuously in Athens27 and that he would have rendered his accounts by this time in order to receive the protection of the amnesty. Because the reconciliation agreement does not play a part in his defense andhe hasnot entered a ρα γ ρα φ π α ή ,28 one concludes that he was being prosecuted for an offense which wasnot encompassed by the amnesty. The one crime which is believed to have been excluded from the amnesty washomicide, and Lysias does not accuse Eratosthenes of any specific crime during the oligarchy except the murder of his brother (23, 26, 34). Since only the bare essentials of Polemarchos’demise arerelated,29 Lysias’evidence against the defendant appears unconvincing. In lieu of concrete evidence to document his case, Lysias employs proofs drawn from probability to persuade thejury. Hehammers away at the claim of Era34). tosthenes that he opposed the plan to arrest selected metics (25– Lysias will even stipulate that Eratosthenes spoke against the proposal, but speculates what Eratosthenes would have done, had he concurred with the plan, when contrary to his personal conviction he performed the commands of the oligarchs (34). That the defense of the accused will rely upon a transferral of blame to the Thirty (28, 81) provides the orator with an opportunity to expatiate on the conduct of the oligarchs (39– 78) and to point out especially how ludicrous it is for one member of the Thirty to divert guilt for the illegalities to the Thirty collectively (28). The crux of Lysias’case rests upon the argument that 26 Hermes 109 (1981) 280–294. 27 Since Eratosthenes remained in the City after the overthrow of the Thirty (54), it maybe presumed that he continued to reside there; or else Lysias would have been certain to note hisabsence.

ήin this instance because the plaintiff is speaking φ α ρ γ ρα α cannot be a question of a π first. 29 Lysias imparts the impression that he possesses few details about hisbrother’s death. After all, his knowledge is secondhand since he sent Archenes, the shipowner, from the Piraeus to the City to discover what happened (16). Lysias did not remain in the Piraeus long enough to collect all the particulars, but left for Megara on the following night (17). In addition, the pillaging of Polemarchos’ house (19) and his funeral (18) are described to arouse pathos among the jury. Both these events, of course, could not have been witnessed by Lysias since he wasin the Piraeus or hadalready departed for Megara.

28 It

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Eratosthenes was under no compulsion to execute the orders of the tyrants. Hecould have become aninformer andforewarned theintended victims (32); and since it was solely in his power to arrest or save Polemarchos (26), he could have prevented what happened by denying that he sawor came upon Polemarchos (31). Lysias cannot prove that the accused actually committed a homicide; in fact, he clearly states that his brother drank hemlock (17). Instead Lysias is asserting that the failure of Eratosthenes to insure the safety of Polemarchos, when he was the only one able to do so, constitutes murder. Although Eratosthenes, strictly speaking, cannot be characterized as an α χ ὐ τ ό ειρ , the argument is being advanced, nonetheless, that to apprehend a man who is known to be accused unjustly and who in all certainty will be condemned to death, when it was possible for an individual to avert such a miscarriage of justice, is tantamount to direct murder. What the verdict may have been is impossible to discern. Critics30 are quick to conjecture that Eratosthenes was exonerated. In support of their assertion, they cite the weakness of Lysias’ proofs, the fact that the dicastery was composed of both men of the City and men of the Piraeus, and the divisive and unconciliatory tone of the speech. It must not be overlooked, however, that Lysias’ case was tenable enough at the preliminary hearing so as to be admissible.31 The importance of this process lies in the willingness of the Athenians to entertain at least an extended definition of direct homicide wherein an official’s culpability is expanded to include acts of omission, as a result of which anunjustly accused person perishes. One other prosecution for murder brought directly against one or more members of the Thirty is known. The speaker of Lysias X states that when he had come of age, he moved against the Thirty before the Areopagus (31). Since his father had been put to death during the oligarchy (27), the presumption is that the plaintiff brought a δ η ίκ ν ο υ . Several arguments lend support to this hypothesis. The Areoφ ό pagus was the court which heard such lawsuits.32 Anymembers of the Thirty who had remained in Athens would have passed their accounts by this time, thereby becoming eligible to receive amnesty. They still could be prosecuted, however, for murder, since it wasexcluded from the amnesty. The date of this suit can be pinpointed. The speaker reports that he was thirteen years old in 403/402 B.C. when the demo30 Cloché, LaRest 326–330. F. Ferckel, Lysias und Athen, (diss. Würzburg 1937) 47–48. Frohberger-Thalheim, AusRed, I, 18–19. Gernet-Bizos, LysDis, I, 159. Rauchenstein223. Fuhr, ARLys, I, 19. Wilamowitz, Arist u. A., II, 222– ρισ ιςbecause it is addressed to a jury κ ά ν 31 This speech could not have been spoken at an ἀ (1, 3, 11, andpassim) rather than the appropriate magistrate. 32 Arist. 57.3. D.XXIII.22.

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α σ κιμ ἰαwould have occurred upon cracy was restored (4), and his δο reaching his eighteenth birthday. Consequently, this process can be dated to 399/398 B.C. Since none of the particulars surrounding the death of the speaker’s father nor the subsequent lawsuit are related, little may be said with any assurance. The deceased is associated sometimes with Leon of Salamis.33 The identification is based on the similarity of the name of the speaker’s elder brother, Pantaleon (5). The deceased is described as having been a general many times (27), and Leon of Salamis is said to be the general of the same name mentioned by Thucydides (VIII.23–24, 54–55, 73) and Xenophon (1.5.16, I.6.16).34 The identification of the deceased with Leon of Salamis must be dismissed for lack of compelling evidence. It is also suggested on the basis of Andocides 1.94 that the speaker did not prosecute for ίαbut for βούλευσις,35 since few of the oligarchs are likely α ὐ ε ιρ χ το to have committed homicide directly. Cases of βούλευσ ις , however, seem to have fallen within the jurisdiction of the Palladion rather than ῖςτριάκο ν τ αwith the two the Areopagus.36 Some critics37 associate το members of the Thirty, Eratosthenes and Pheidon, who are thought to have remained in the City after the return of the exiles. There is no reason to assume that no other members of the Thirty hadremained in Athens or had returned after the fall of Eleusis. But one may conjecture that the speaker was encouraged to prosecute because of the trial of Eratosthenes which had taken place two years earlier at the maximum. The plaintiff, like Lysias, probably didnot winhis case; for he mentions only that he initiated a suit, not that he achieved a condemnation, a fact which he certainly would have reported, hadhe been successful.38 Lysias XIII is purported by the title contained in the manuscripts to be an action against Agoratos in pursuance of an ἔνδειξ ; however, ις as the speech itself makes clear (85–86), the procedure used in this ἠ . There were a variety of sitγ γ ω α case is the similar process, the ἀ π uations in which this procedure could be employed;39 its relation to homicide cases has been a subject of much debate. Demosthenes (XXIII.80), after describing the five special homicide courts in Athens, adds a sixth wayof prosecuting a murderer: , JHS 77 (1957) 179 n. 10. 33 A.Andrewes andD. M.Lewis, “Note on the Peace of Nikias” 34 J. McCoy, “ The Identity of Leon” , AJP 96 (1975) 187–199. 35 Frohberger-Thalheim, AusRed, II, 168. Lipsius, AttRecht 126–127. 36 D. M. MacDowell, Athenian Homicide Lawin the Age of the Orators, (Manchester 1963) 64–69. 37 Cloché, LaRest 327. Frohberger-Thalheim, AusRed, I, 19–20. 38 Frohberger-Thalheim, AusRed, II, 151. Gernet-Bizos, LysDis, I, 151. ήand a description of the procedure, see: γ ω γ α π 39 For a concise summary of the uses of ἀ 229. Harrison, LOA, II, 221–

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There is a sixth legal procedure in addition to all the others which this man has likewise violated in authoring this decree. If someone is ignorant of these procedures or the time limits have elapsed within which it is necessary to undertake each of them, or for some other reason hedoes notwish to prosecute

by these methods, but he sees a murderer frequenting the sanctuaries orthe ) tojail. γ ε ιν π ά Agora, it is necessary to arrest himandlead himaway(ὰ It is this kind of process with which D. M. MacDowell40 associates the Against Agoratos. Gernet and Bizos41 object to this interpretation

for the following reasons. There is no allusion within the speech itself to Agoratos having entered the forbidden places. In addition, if this more expeditious method of pursuing a murder charge were widely used, it would have replaced the other legal avenues of dealing with homicide which Demosthenes considers to be more regular. Instead ήin reference to murder γ ω γ α π Gernet and Bizos conjecture that ἀ cases was employed strictly against non-citizens such as Agoratos. The parallels which they cite in support of their hypothesis are not persuasive. Neither in the case of the man charged with the murder of Herodes (Antiphon V) nor of the slayers of Phrynichos (Lycurg. I. 112–113) does any connection exist between their status as nonAthenians and the legal means taken against them.42 While it is true that Agoratos is not said to have visited the banned places, one would anticipate, as Harrison43 remarks, that the trial would revolve upon the question whether or not the individual hadcommitted murder, not whether or not he had frequented the locations legally proscribed to murderers. Perhaps the other speaker for the prosecution at this process handled this aspect of the case. A hypothesis whythe plaintiffs chose ήrather than the more conventional δίκ γ γ ω ηφ ν ό ο α υ π to initiate an ἀ will be proposed below.

40 Homicide 131–136. 41 LysDis, I, 187–188. 42 The defendant in Antiphon V, a Mytilenean, protests that the prosecutors have proceeded 19). They should have brought against him a against him by the incorrect legal means (8– ς(9). Murderers did not fall ήand ἔ γ ο ρ γ ν ιςas a κακοῦ δειξ υrather than anἀ γ ο ω ν ό α ηφ π δ ίκ into the category of malefactors (for the ancient sources, see: Harrison, LOA, II, 223 n. ήdiffered from the one described by Demosthenes γ γ ω 4). Furthermore, this form of ἀ π α in that the penalty for conviction was at the discretion of the jury. Lipsius (AttRecht 323) and M. H. Hansen (Apagoge, Endeixis, and Ephegesis against Kakourgoi, Atimoi, and ς γ ο ρ ῦ ο κ 102) declare that Agoratos wasarrested as a κα Pheugontes, [Odense 1976] 101– just like the accused in Antiphon V. Hansen (Apagoge 102–103) believes that the process mentioned by Demosthenes was introduced later in the fourth century. The family of Phrynichos probably moved against Apollodoros andThrasyboulos sometime later by the same procedure which the relatives of Dionysodoros are using against Agoratos. For a discussion of this case, see: MacDowell, Homicide 138–139. 43 LOA, II, 227.

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Chronological clues in the speech which might indicate when it was delivered are almost entirely lacking. The trial of Agoratos took place sometime after the condemnation of Menestratos who was executed a long time after the commission of his crime (56). Agoratos, as part of his defense, will protest that he is being prosecuted a long time after his false informations; but it is impossible to gauge the length of the interval between his depositions and the present process and between the prosecution of Menestratos and the trial of Agoratos. 4 Therefore, commentators4 arbitrarily assign a date to this speech ranging from 400 B.C. to 398 B.C. There may be another way, however, to arrive at a more precise date. Agoratos is reproached at length with his status. He is of servile birth (64), andhis claims to citizenship based on his participation in the assassination of Phrynichos are dis-

puted (70– 72). The inscription honoring the murderers of Phrynichos is extant45 and records, just as the speaker asserts (72), that Agoratos among others was listed merely as a benefactor and was awarded certain privileges (IG I3, 102, lines 25–34).46 Agoratos behaved as if he were a citizen, conducting lawsuits and attending the Assembly (67, 73). Furthermore, the speaker suggests that in return for his denunciations, the oligarchs were going to make Agoratos a citizen (61). It is improbable that he was granted citizenship under the Thirty, since he joined the democratic resistance early on at Phyle andreturned with the exiles from the Piraeus (79–82). IG II2, 10, dated to 401/ 400 B.C., extends citizenship to the non-citizens who fought with Thrasyboulos at Phyle. Since Agoratos’ pretensions to citizenship rest upon his involvement in the slaying of Phrynichos andnot his presence at Phyle, it would suggest that IG II2, 10 had not yet been passed. Consequently, one may place this process anytime from the restoration of the democracy up to the passage of IG II2, 10, although it is more likely that it occurred later in this period than earlier. Thus, the speech antedates both the fall of Eleusis and the Against Eratosthenes. Agoratos is being prosecuted by the kinsmen of Dionysodoros who was among those individuals deposed by the defendant. Dionysios, the brother of the deceased, has intitiated the complaint (86); but the brother-in-law of Dionysodoros is delivering the main speech. The first half of the speech (5–48) is devoted to a narrative of Ago90) ratos’ conduct as an informer for the Thirty. The latter part (49– consists of a refutation of the anticipated arguments of the defense. 44 Blass, AttBer, I2, 555. Cloché, LaRest 331–332. Frohberger-Thalheim, AusRed, I, 73 n. 24. Gernet-Bizos, LysDis, I, 186 n. 1. Rauchenstein-Fuhr, ARLys, I, 65. 45 IG I3, 102. The inscription is dated to 410/409 B.C. 46 Gernet-Bizos (LysDis, I, 184) conclude that Agoratos andthe others were elevated to metic status by this decree.

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Each argument as it relates to the murder itself or the legality of the trial will be discussed in detail. Before dealing with the defense’s arguments, the speaker declares what Agoratos must prove to exculpate himself. He must show either that he did not make the denunciations (49) or the menagainst whom

he informed were justly accused (51, 84, 89). Agoratos cannot prove the former, since the prosecutor quotes from the decree which condemned the men on the basis of the testimony of the defendant (50). In fact, Agoratos has already made the admission earlier in the proceedings (30, 33). Nor can he demonstrate that the individuals who ς μ . Hadthey been ο ῆ were named by him were conspiring against the Δ doing so, the Thirty certainly would not have taken action against them (51). What the speaker has done is to oversimplify and reduce the points at issue to only those which he can prove without doubt against Agoratos and which the defendant will not contest. By magnifying the importance of these two criteria, the plaintiff seeks to create the appearance of an open-and-shut case and thus to divert the jury from the other issues which will form Agoratos’defense.

Agoratos will plead that he was compelled by the Thirty against his will to make the denunciations, but the prosecution maintains the opposite (28, 52). The speaker does not directly confront the assertion of the defense, but attacks it circumstantially. Agoratos willingly surrendered the protection of the altar at Munychia, though he claims that he was forcefully removed (28), an accusation which the plaintiff tactfully does notrepeat since he cannot demonstrate it. Noris the 61) conduct of Xenophon and Hippias (54) and Aristophanes (60– relevant, who elected to die rather than make false accusations. Though the contrast in their behavior with that of the defendant may brand him as an ignoble coward, it strongly suggests that compulsion was applied and that Agoratos, unlike the others, yielded. The fact that he 59) is also inconclusive; andit offers, implicated his guarantors (30, 58– on the contrary, further evidence that he wasunder pressure from the tyrants. The Thirty may have demanded that he include in his informations the names of those persons who, by desiring to save his life, attempted to frustrate the designs of the oligarchs. Reminiscent of the Against Eratosthenes is the speaker’s refusal to acknowledge that fear for one’s personal safety may be taken into account as a mitigating circumstance for one’s actions. After all, Agoratos could have fled with his guarantors in the ships that were lying in readiness in the 26, 52, 58). Hadhe done so, the deaths of many innocent harbor (25– men would have been avoided (53, 58). Thus, from the speaker’s viewpoint, the decision not to escape in the face of such a danger, when the defendant was apprised of what the consequences of his choice

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would be (25), constitutes proof of his active participation in the oligarchic conspiracy. Just like Eratosthenes’ failure to save Polemarchos, Agoratos has committed a willful homicide by an act of omission. Agoratos plans to allude to Menestratos in reference to the denunciations (55). It seems clear that he is to be mentioned so that he might absorb a portion of the blame for what happened. The prosecutor is careful to explain that Menestratos is a second-generation informer (55); namely, he was deposed by Agoratos before making his ownrevelations. Therefore, the defendant cannot point to Menestratos as the prime mover behind the false informations. Just as Lysias effectively deflects Eratosthenes’ attempt to redirect responsibility toward the Thirty collectively, the speaker rejects a similar maneuver to transfer culpability and turns the case of Menestratos to his advantage. He concludes that Agoratos should be put to death by a sophistical argument which runs as follows (57): Menestratos was executed as a murderer because of the consequences of his false testimony; therefore, the person who placed him in the position to do harm is far more worthy to be condemned. Part of the defendant’s case will rely upon his claim that he is being tried beyond the statute of limitations. In response the speaker declares that there is no statute of limitations for such crimes (83). Although ), he implies, beμ α τ α ή δικ ο αἀ ύ ια τ he does not specify the offense (τ cause of his frequent allusions to Agoratos throughout the speech as a murderer,47 that he is discussing it in relation to homicide. He is correct in asserting that such a prescription does not apply to murder;48 and, therefore, there can be no statute of limitations for an individual suspected of murder who has been caught visiting the forbidden areas. Is Agoratos, however, necessarily invoking the statute of limitations in regard to murder? It would be strange if he mentioned it in reference to a crime which is not covered by such a provision.49 More probably he is challenging the prosecution’s attempt to equate his denunciations with murder and will concede that his actions make him guilty of some other offense50 for which there may have been a statute of limitations. Consequently, Agoratos will argue that both the statute of limitations and the reconciliation agreement provide him with immunity from prosecution for his perjury. The speaker tries 47 According to my count, there are thirty-seven occasions in this speech where the speaker links Agoratos directly with the deaths of Dionysodoros andhis companions. 48 MacDowell, Homicide 10–11. 49 Gernet-Bizos (LysDis, I, 211) believe that Agoratos is arguing this point from moral rather than legal grounds. μ ο υ . , συκο ητ ο ῦ δή τ α ν ά φ φ τία , or ἀ π ία ρ α γ ο δ ευ 50 E.g., ψ

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to mislead the jury by associating the statute of limitations with murder, when Agoratos will relate it to an entirely different charge. Secondly, the plaintiff does not offer an explanation why he and Dionysios waited so long to take action. Instead he states that the amount of time that has elapsed afforded Agoratos that much more time to live (84). One may account for the delay in this manner: the prosecution moved against Agoratos, only after they hadbeen encouraged

by the precedent set by the conviction of Menestratos. π Agoratos will take exception to the addition of the phrase, ἐ ᾽ , to the arrest warrant (85). The Eleven had compelled Dioῳ ρ ώ φ ο α τ ὐ γ ή(86). Harrison51 γ ω π α nysios to append this expression to the ἀ ῳ refers not to the homicide in this instance, argues that ἐ π ρ ᾽α φ ώ ὐ το but to the violation of the restrictions on visiting the banned places, since it is the crime for which the defendant has been apprehended. It is clear, as most critics52 agree, that the phrase should be construed in connection with murder; for the speaker is certainly making the association (85, 87). Scholars53 explain that the Eleven, in order to π ρ ῳ , make the arrest legally valid, affixed the expression, ἐ ὼ φ ᾽α ὐ ο τ to the warrant. Lipsius54 dissents and asserts that this insertion was γ α ί relating to homicides. The description of γ ω π α unnecessary in ἀ this procedure in Demosthenes (XXIII.80) does not include such a qualification; and the speaker in this case states that even if this phrase had not been appended, Agoratos would still have been liable for arrest (85). If ἐ π ᾽α ὐ το ρ ῳwere not required to make the ἀ φ ὼ γ ήadγ ω π α missible, what was the motive behind the Eleven’s action? Another π ρ . ῳ ᾽α ὐ φ ὼ ο τ explanation exists which hinges upon the meaning of ἐ . manifestly” MacDowell55 imbues it with the less specific sense of “ , the argument in this He asserts that if it meant “caught in the act” passage would be ludicrous, since several months at the minimum had elapsed in between the depositions andthe arrest of Agoratos. Others56 maintain that the expression should be taken literally as “caught in the act”in the belief that its application had become flexible andthat it could embrace a variety of situations. The latter meaning is more logical in the context of this speech. The prosecutor is seeking to manifestly”a murderer, but establish not merely that Agoratos is “ 51 LOA, II, 226–227. 52 Frohberger-Thalheim, AusRed, I, 74. Gernet-Bizos, LysDis, I, 188–189. Hansen, Apagoge 102. MacDowell. Homicide 132–133. Rauchenstein-Fuhr, ARLys, I, 64. 53 Blass, AttBer, I2, 552. Frohberger-Thalheim, AusRed, I, 75. Harrison, LOA, II, 224. MacDowell, Homicide 133. Rauchenstein-Fuhr, ARLys, I, 64. 54 AttRecht 324–325. 55 Homicide 133. 56 Blass, AttBer, I2, 552. Frohberger-Thalheim, AusRed, I, 74. Gernet-Bizos, LysDis, I, 188– 189. Hansen, Apagoge 102. Harrison, LOA, II, 224. Rauchenstein-Fuhr, ARLys, I, 64.

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). What the speaker ία ειρ χ ὐ το that he is guilty of direct murder (α dwells upon is the defendant’s personal culpability for the deaths.

Agoratos’ fallacious depositions before the Council and the Assembly, since they resulted in the condemnation of the men against whom he informed, is equivalent to being caught in the act of murder (86). ρ ῳ , “caught in the ὼ π φ τ ο ὐ ᾽α According to Agoratos’ definition of ἐ act”only applies to a person who has slain by a club or knife andnot to someone who has brought death by deliberate misstatements (87). But one who causes the deaths of others by hisperjury, so the speaker ρ ῳ(87). Hence, reasons, must therefore be a murderer ἐ π ὼ φ το ὐ ᾽α ία .57 Agoratos, by ιρ ε χ ὐ το “caught in the act”is being equated with α ὐ ο χ τ ία ειρ , is held personally responsible an expanded definition of α for the deaths of Dionysodoros and the others. The action of the Eleven now becomes explicable. According to the reconciliation agreement, only cases of direct murder in theory could be prosecuted. Consequently, it follows that charges arising from homicide during the oligarchy must be based on evidence that it wasin fact direct murder. ρ ῳto the warrant in order to insure that The Eleven added ἐ π ώ φ το ὐ ᾽α the prosecution was in compliance with the murder provision of the reconciliation treaty. The reconciliation agreement will be invoked by Agoratos in his defense (88). The speaker dismisses this plea with a sophistical syllogism (89– 90): the reconciliation treaty was made between the men of the City and the men of the Piraeus, both prosecution and defendant belonged to the Piraeus Party, the treaty therefore does not apply to the case. From the unresponsive retort of the speaker, it is uncertain in what regard Agoratos will refer to it. As mentioned above, it is presumed that he is protesting the opposition’s contention that false denunciations which help to condemn innocent individuals are tantamount to murder, but will grant that his conduct makes him guilty of some lesser offense for which the amnesty would have protected him from prosecution. If this assertion is correct, why didAgo58 to challenge the admissibility of the ή ρα φ γ ρα ratos not enter a π α legal action initiated against him? One reason may be that Archinos had not yet proposed this piece of legislation, since it is unknown at what point after the restoration of the democracy this lawwaspassed. , because it was ή γ ω γ α π Possibly a demurrer could not be used in ἀ a more summary and expeditious procedure. There is, however, no evidence to support or reject this notion. The most likely solution , (Gernet-Bizos, 57 “ Le flagrant délit est moins une circonstance qu’un élément d’inculpation” LysDis, I, 189). ήin this case since the prosecution is speaking first. φ α ρ γ ρα α 58 It cannot be a question of a π

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revolves around the nature of the charge against Agoratos. Though the real issue under discussion is homicide, the arrest warrant is based on the fact that he, a suspected murderer, visited the Agora and the sanctuaries in defiance of the ban. Since this violation took place subsequent to the reconciliation agreement, the amnesty provision would not apply; and he would be subject to prosecution. Herein lies the explanation why Dionysios and the speaker elected to pursue Agoratos in this manner. It was a means by which the reconciliation treaty could be circumvented. The amnesty would not have been an obstacle, and a looser definition of murder may have been more acceptηφ ό ίκ ν ο υ . One further advanable in this kind of process than in a δ γ ήwas that if the prosecution failed to collect γ ω π α tage of the ἀ one-fifth of the jury’s votes, it incurred a fine of only one thousand drachmas. If it should win, the death penalty wasmandatory.59 It is not possible to determine with certainty the outcome of this trial. Most commentators60 take the pessimistic view that Agoratos was condemned. While stating that the prosecution’s case was weak, they believe that a jury would have been unsympathetic to Agoratos because of his pretensions to citizenship, his servile origins, the odious nature of his crime, the stature of the men who perished as a result of his denunciations, and a lack of discernible support from either the men of the City or the men of the Piraeus. Furthermore, there is the shadow cast by the example of Menestratos. The decision of the jury would depend on whether or not they felt the defendant to have committed direct murder. If they were convinced that he was an α ὐ χ τό ε , they would have had little choice but to convict him, since ιρ his visits to the areas off-limits to murderers are not contested. In this instance, the reconciliation agreement would be of no avail to him because the actual offense occurred after the conclusion of the reconciliation treaty. To judge from the trial of Eratosthenes held subςdisplayed a willingness to consider cases in which μ ο ῆ sequently, the Δ an extended definition of direct homicide wasat stake. Although one cannot be certain, all these circumstances taken together present a situation unfavorable for acquittal. The trial of Menestratos has already been discussed in regard to the 57) provides only the merest prosecution of Agoratos. Lysias XIII (55– outline of the circumstances attending this process. As a result of 59 The speaker mentions the death penalty three times as the proper punishment for Agoratos (57, 69, 91). 60 Blass, AttBer, I2, 555. Frohberger-Thalheim, AusRed, I, 74. Rauchenstein-Fuhr, ARLys, I, 65. Cloché (LaRest 338–341), although he enumerates all the reasons which make a conviction likely, cautions against the conclusion that Agoratos was condemned. GernetBizos (LysDis, I, 191) say that acquittal wasnot improbable.

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Agoratos’ denunciations, Menestratos wasarrested andimprisoned; but Hagnodoros, a kinsman of Kritias, persuaded him to make additional depositions in return for immunity. Sometime later, Menestratos was brought to trial as a murderer and was condemned. This process antedates the trial of Agoratos and is therefore the earliest known case which involved homicide committed during the oligarchy. Howgreat the interval of time wasbetween the trials of Menestratos andAgoratos cannot be determined precisely, although if one is correct in assuming that the prosecutors of Agoratos initiated their action emboldened by the precedent set in the Menestratos case, the intervening period need not have been great. It is difficult to ascertain on what charge Menestratos was brought to trial and what procedure was employed. Rauchenstein and Fuhr61 theorize that he was not prosecuted as a murderer because of his delations, but that he wasaccused of another capital offense. At the hearing his opponents would have brought up his denunciations in order to facilitate securing the death penalty. MacDowell,62 on the contrary, believes that it wasa question of homiα π cide because of Menestratos’ activities as an informer and that ἀ γ ήwasused against him as it hadbeen against Agoratos. Hereasons γ ω that an oblique means of seeking retribution must have been utilized, since the reconciliation treaty forbade prosecutions for murder with ία . Consequently, Menestratos was accused ειρ χ ὐ το the exception of α of entering the places proscribed to murderers. This latter view appears more plausible, though it requires some amendment. The speaker of Lysias XIII (56) does not state that Menestratos was convicted of ν β ό homicide, but that he was in court since he was a murderer: λα ςἀνδροφ ὼ ό ν ο νὄν τ α . Thus, the text suggests that ςἐ νδικ ρ ίῳ η α σ τ τ ε he was pursued on a charge stemming from murder rather than homicide itself. On analogy with the Agoratos case, the indirect means to prosecute Menestratos as a murderer was the application of ἀ ή γ γ ω α π described by Demosthenes (XXIII.80).63 As the action of the Eleven in the Agoratos case illustrates, an attempt at least had to be made to demonstrate that the homicide, upon which the grounds for arrest ήconformed to the restricγ γ ω α π depended, was direct so that the ἀ tions imposed by the reconciliation agreement. It is not, asMacDowell declares, that the accusers of Menstratos could not have initiated a

61 ARLys, I, 64 n. 1. 62 Homicide 137–138. 63 Gernet-Bizos (LysDis, I, 186) deny that Menestratos, an Athenian citizen (55), waspursued ή wasreserved solely for non-citiγ ω γ α π by this method in the belief that this form of ἀ zens. Instead they propose that murder wasproven against Menestratos by some unknown procedure.

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ήoffered several advantages. A γ γ ω π α ηφόνου,64 but that the ἀ δ ίκ ίαmay have been permissible; ιρ ε χ ὐ το less stringent definition of α

and the reconciliation treaty could not be effectively invoked, since the actual crime, visiting the forbidden areas, occurred after the conclusion of the reconciliation agreement. Among the victims of the Thirty was Leon of Salamis.65 Five citizens were delegated by the oligarchs to go to Salamis and arrest him, one of whom was Sokrates who declined to participate, another of whom was Meletos, one of the accusers of Andocides, who did assist in the apprehension. Subsequently, Leon was executed without a trial. Andocides (I.94), in showing howthe amnesty benefits Meletos, quotes a lawwhich he states to have been valid prior to the oligarchy andto be currently in force after the restoration of the democracy. According to this law the person who plots a homicide is subject to the same penalty as the individual who actually performs the murder. In addition, Andocides declares that the sons of Leon cannot prosecute for murder because it is necessary to use the laws promulgated since the archonship of Eukleides, not because Meletos did not arrest Leon nor because he denies his role in the incident. As formulated, the argumentation of Andocides is confusing and seemingly contradictory. σ ιςis presently On one hand he says that the law regarding βούλευ valid, yet Meletos cannot be prosecuted because one must use the laws passed since 403/402 B.C. Andocides is interpreted to mean that λ ν ο ο ευ φ ό υ ῦ σ the sons of Leon cannot bring Meletos to trial for βού ιςτ since the reconciliation treaty forbids all prosecutions for homicide ία .66 Insofar as one can determine, ιρ ε χ το ὐ except those committed α Andocides’ assertion is correct. Both Lysias and the brother-in-law of Dionysodoros attempt to demonstrate a direct cause-and-effect relationship between the conduct of the defendants and the deaths of their victims, not merely conspiracy to commit homicide, a charge which would have been easier to prove in the cases of Eratosthenes and Agoratos. One must not think, however, as Andocides leads the jury to believe, that Meletos was completely immune from prose64 Had they done so, they would have faced several difficulties. The presiding official at the ρισ ἀ ν ά κ ιςcould have rejected their suit as insufficiently founded, whereas in an ἀ γ γ ή ω α π there does not appear to have been a preliminary hearing (Harrison, LOA, II, 223). Furtherή όν ηφ ο υ , the occasion of the commission of the actual , unlike an ἀ γ γ ίκ ω more, in a δ π α crime would have fallen within the time limits covered by the amnesty; and if the arguments advanced for a broader definition of direct murder failed to be persuasive, the defendant could have appealed to the reconciliation treaty with morejustification. 65 And. I.94. Pl. Ap 32 c–d; Ep VII 324 e–325 a. Cf. D.Chr. XLIII.8, D.L. II.24, Lib. Decl II.19, Them. Or 239 b. 66 MacDowell, Andocides 133. Bonner-Smith (AdminJust II, 82) assert that Meletos’immunity depended on the fact that he was not an α χ τό ὐ ε ιρ , but also state that the amnesty did not encompass indirect murder.

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ηφ ν ό ο υon the ίκ cution.67 The sons of Leon could have brought a δ ία . They may have refrained ὐ basis of an extended meaning of α χ ε ιρ το from doing so because of the difficulty of proving that the actions of Meletos were directly responsible for their father’s death. Meletos, unlike Agoratos, did not act as an agent of the Thirty by making false denunciations. Nor was he solely entrusted with the responsibility of apprehending or saving Leon as Eratosthenes had been in the case of Polemarchos. Had Meletos refused to take part in the arrest, the remaining three persons assigned to this task would have carried out the orders of the oligarchs. Furthermore, he could have plausibly argued that his involvement in Leon’s arrest was motivated by fear for his personal safety.68 Immediately prior to his trial in 399 B.C., Sokrates encounters Euthyphron at the Royal Stoa (Pl. Euthphr 2 a). Euthyphron is initiae). A day-laborer, ting a lawsuit for murder against his father (4 c– working on the farm of Euthyphron’s father on Naxos, killed one of their slaves. Euthyphron’s father bound the day-laborer and threw him in a ditch while a man was dispatched to Athens to inquire of the exegete what action should be taken against the murderer. In the interim the day-laborer perished of exposure and starvation. As a consequence, Euthyphron accuses his own father of the murder of the day-laborer. The family of Euthyphron protests that the father did not actually slay the man and that the day-laborer, since he wasguilty of homicide himself, did not merit any consideration. It is hazardous to adduce evidence from a Platonic dialogue, since the author is accustomed to blend fact and fiction and to manipulate the chronological settings of his works. In spite of this proviso, the lawsuit of Euthyphron will be examined under the assumption that it does represent an actual case and that it does take place when it purports to occur. Euthyphron and his family are thought to have been cleruchs on Naxos; and since Athens is assumed to have lost control of Naxos after the Battle of Aigospotamoi, the death of the day-laborer must have happened before the capitulation of Athens and the installation of the Thirty. This is the only extant example of a prosecution for a homicide which was committed before the oligarchy after the democracy had been restored. Howdoes the reconciliation agreement affect this process? Does it apply at all to the legal position of Euthyphron’s father? The murder provision is not specifically restricted to homicides 67 Cloché (LaRest 345–346) characterizes the case of Meletos as a well-established instance of impunity. 68 Sokrates (Pl. Ap 32 d) suggests that he would have been put to death for his failure to participate in the arrest of Leon, hadthe Thirty not been overthrown soon thereafter.

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committed during the oligarchy. In lieu of such a qualification, one must conclude that it encompasses all homicides which occurred prior to the return of the exiles. Therefore, one would expect Euthyphron ίαin order to be in compliance to found his accusation upon αὐτοχειρ with the murder clause of the reconciliation treaty. There is some indication that he is proceeding in this manner. The protest of the family that his father did not physically commit murder (4 e) sounds as if it were a response to an allegation of direct homicide. It is impossible to speculate reasonably whether the king archon judged this action admissible and handed it over for trial, since few of the arguments which each side was to present can be discerned. The delay in prosecution may be attributable to a number of factors: the constitutional upheavals, the recodification of the laws, family opposition. Furthermore, there is reason to believe that the Athenian courts dealt first with those lawsuits which arose from the reign of the tyrants before turning their attention to cases pending from the period prior to the oligarchy.69 When the reconciliation treaty was being negotiated, the murder provision was framed to restrict prosecutions for homicide to α ο ὐ τ χ ειρ ίαand thereby minimize their number. The means which the Thirty had employed to eliminate their opposition, however, made it ίαin its strictχ ειρ το ὐ difficult for potential plaintiffs to demonstrate α est sense. Few victims of the oligarchy were murdered outright; more often they were deposed by an informer on a spurious charge, arrested, convicted before the oligarchic Council (unless a trial were dispensed with altogether), and compelled to drink hemlock. A dilemma was created for those desiring to bring suit: to fix guilt upon any one person when no one could be said to have killed with his own hand (but many had played a part in the deaths) and to comply with the reconciliation agreement. After the restoration of the democracy, who could be held legally accountable for the reign of terror during the oligarchy? The Thirty? Few of the tyrants, however, were still resident in Athens; a majority had either died, emigrated to Eleusis, or left Attica by this time. Furthermore, it would have been difficult

to discover which oligarch was responsible for any one homicide. The agents of the Thirty –the informers, those whomade the arrests, the members of the Council? These people, however, did not mastermind the political murders, but carried out instructions, often motivated by a fear for their personal safety, given to them by the oligarchs. ) were prohibited ο λ ύ ευ σ ις Since prosecutions for indirect homicide (β ία , strictly interpreted, χ ειρ ὐ το by the reconciliation agreement and α 69 Infra 120–121.

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was impossible to prove in these circumstances, accusers sought to expand the definition of direct homicide so that they could bring suit without appearing to defy the reconciliation treaty. They argued that ία , if a death hadoccurred as a direct χ ε ὐ το ιρ a defendant wasguilty of α result of one of his actions (commission or omission). Thus, the failure of Eratosthenes to save Polemarchos and the mendacious denunciations of Agoratos are asserted to be equivalent to direct murder. As ία , the suit didnot violate long as an accusation was based on α χ ειρ ὐ το the reconciliation agreement, though a defendant might contest, as Agoratos did, that his actions did not constitute direct homicide and were therefore covered by the amnesty. In practice indirect murders could be prosecuted by advancing a broader meaning of α ὐ ία χ το ειρ . Some prosecutors attempted to circumvent the reconciliation treaty ή . In this manner they could γ γ ω π α altogether by resorting to an ἀ prevent the accused from effectively invoking the reconciliation agreement, since the actual crime, entering the areas forbidden to suspected murders, took place after its negotiation. AsEuthyphron’s suit against hisfather suggest, homicides which werecommitted prior totheinstallation of the Thirty, but were prosecuted after the return of the exiles had ίαin order not χ ειρ το ὐ to be founded as well upon an allegation of α to be at variance with the murder provision. It is not possible to ascertain how widespread prosecutions for the political murders committed under the oligarchy were after the restoration of the democracy. They may be imagined to have been few. In comparison to the number of men slain by the Thirty,70 there are only a handful of allusions to attempts at legal redress. The families of the dead may have been deterred from initiating proceedings out of a feeling of futility, since the principal authors of the reign of terror had either perished, emigrated to Eleusis, or fled from Attica. The ίαor a desire to respect the spirit of ὐ χ ε ιρ το uncertainty of proving α the amnesty may have prevented many, like the sons of Leon of Salamis, from prosecuting. Nor can one assess the success of plaintiffs’ . Only in the case of ία χ ειρ arguments for an extended definition of α ὐ το Menestratos is a conviction known to have been achieved. It may be that informers, because of the insidious nature of their crime andtheir inferior social position, found a less sympathetic reception in court than the oligarchic officials themselves. As the Against Eratosthenes indicates, presiding magistrates and dicasteries were willing to contemplate a less rigid interpretation of direct homicide. 70 The number of individuals purged by the oligarchy varies. The total most often reported by the older and more reliable sources is 1500: Aeschin. II.77, Arist. 35.4, Isoc. VII.67; XX.12, Lib. Decl II.19. Other sources give a similar figure: D.L. VII.5 (1400), Sen. Tranq V.1 (1300). The scholiast ad Aeschin. I.39 states that several sources assert that 1500 died; but Lysias, in a speech whose title is not preserved, saysthat 2500 were killed.

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4. Repayment of WarDebts Aristotle (40.3) records that the Athenians repaid in common the money which the oligarchs had borrowed from Sparta, although the reconciliation treaty set forth that wardebts contracted bythemenof the City and the men of the Piraeus be discharged separately. Isocrates (VII.68) and Demosthenes (XX. 11–12) corroborate the testimony of Aristotle while providing additional information. The interpretation of this event greatly depends on its date, but none of the ancient sources supplies any unequivocal chronological indications. Aristotle implies that the debt repayment occurred prior to the fall of Eleusis, since he mentions it before giving the archon date for the return of the émigrés from Eleusis. The notice in Demosthenes is ambiguous because he states that the loan wasrepaid when the City hadbecome one. This expression, however, mayrefer to the return of the democratic exiles in 403 B.C. or to the reincorporation of the settlement in Eleusis with Athens in 401/400 B.C. An examination of the motive for the generalization of the debt to Sparta may help to place this event chronologically. As Demosthenes reports, the proponents of joint repayment believed that this measure ς ρ would be a symbol of harmony: τ α ῆ ξ νὑπ ιτ ρῶ τ ά ο ὲτο ῦ νδ τ οπ ῶ μ ε νἀ ῖο η ξ ιο ν ν τ ω ςσ ύ ν ο ία ο ; Aristotle ascribes a similar motivation μ ὸ ς . ςὸμονοία ε ρχ ινδ ε ῆ ῖντ μ ν ο ε ρῶ ι το τ νἄ ο ῦ τ οπ for this action: ἡγού One cannot extract absolute chronological data from the similarity of ῶ ρ language, since these statements contain a double ambiguity. Π ό μ νmay allude to time “first”or to rank “foremost”. Likewise, ὁ τ ο ν ο ια maybe viewed in two ways. It may describe the sense of harmony felt in the City immediately after the restoration of the democracy, or it may refer to the situation subsequent to the fall of Eleusis when the émigrés returned to the City. The account of Demosthenes suggests another reason for this action. He reports that Sparta sent ambassadors to Athens to demand the money back. No embassy, however, is mentioned as having been dispatched to Eleusis for a similar purpose. It does not seem probable that the Spartans would apply to Athens for full repayment of the loan, unless Eleusis no longer functioned as an independent community, since many of the menof the City settled there who shared responsibility for the debt according to the reconciliation agreement. A passage from the Against Nikomachos of Lysias (XXX.22) mentions this Spartan embassy and therefore provides a terminus ante quem for the repayment of the loan. This speech is generally believed to have been delivered in 399 B.C.71 Thus, Sparta 71 Blass, AttBer, I2, 465. Gernet-Bizos, LysDis, II, 159.

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must have demanded reimbursement before 399 B.C.; and if the inference drawn from the fact that full payment wassought from Athens alone is correct, this incident must have taken place after the fall of Eleusis.

ο ιαa credible motive for the joint repayment of the loan? Is ὁμόν Had this proposal been promulgated immediately after the return of the democratic exiles, one could argue more plausibly that such an act of moderation would have demonstrated to the men of the City the sincerity of the democrats’ intentions andwould have perhaps retarded the flow of emigrants to Eleusis.72 If, however, this event occurred after the fall of Eleusis, as appears likely, concord becomes a less convincing motivation, since a majority of the Three Thousand hadelected to remain in the City and had already lived in peace for three or four years. In addition, Isocrates and Demosthenes reveal that this measure received spirited opposition and was far from winning unanimous approval. There may have been a more compelling reason for Athens to absolve itself of its debt to Sparta at this time. In his commentary on this passage, the scholiast to Demosthenes repeatedly introduces the notion of fear (460.13, 14, 20), though he is careful to state that Demosthenes wishes to portray this act as voluntary. In conjunction with Lysias XXX.22 where Spartan threats are cited, the scholiast cannot be disregarded. Clearly the Spartans were eager to have the one hundred talents back, andit wasimportant for the Athenians to accommodate them. Why did the Lacedaemonians importune Athens so strongly to repay the loan at this time? Cloché73 rightly rejects the idea that Sparta acted on behalf of the Three Thousand, its former clients, since Pausanias and the ephors hadarbitrated the reconciliation treaty and had sanctioned the specialization of the war debts. Since the Lacedaemonians had assumed possession of the former Athenian empire, financial distress must not have been the cause of their action.74 It appears more likely that Sparta desired to exact a pledge of Athens’ goodwill and to prevent a resurgence of Athenian power, now that Attica was no longer split into two independent communities. Repayment of the one hundred talents would keep Athens in desperate economic straits, and its tenuous finances would insure its quiescence during Sparta’s involvement against Elis andthe Persians in Asia Minor. Although harmony may have been put forward as the grounds for generalizing the debt, it seems certain that some concession had to be made to the demands of Sparta. 72 Cloché, LaRest 382. 73 LaRest 382. 74 According to Diodorus (XIV.10.2), the Spartans each year in tribute.

received more than one thousand talents

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According to Isocrates, this financial measure was passed by the Assembly in the form of a decree; and Demosthenes is in full agreement. What funds were used to erase this debt? The scholiast to Demosthenes states that Athens imposed a tax on its citizens instead of paying from the wealth of the Acropolis (460.20); Demosthenes makes a similar implication. Cloché75 mentions the possibility that joint repayment may have been merely an illusion. Although Sparta may have received public funds from Athens, a special tax may have subsequently been levied on the Three Thousand to recover the one hundred talents. As Cloché observes, it is impossible to verify this assertion. Therefore, in lieu of unequivocal evidence, one must rely upon the sense of the Demosthenes passage. A tax on all citizens may have been the only just solution because there may have been difficulty in assessing liability for the debt. Presumably, the records still existed which listed the members of the Three Thousand;76 but as Mantitheos points out in regard to the cavalry lists (Lys. XVI.6), records could be forged. In addition, some members of the Three Thousand joined the exiles in the Piraeus prior to the restoration of the democracy.77 It would seem unfair, if these individuals who had supported the democrats, albeit belatedly, would subsequently have hadto share the expenses of the cause that they hadabandoned. The war debts incurred by the banished democrats seem to have been paid out of public monies as well. Lysias (XXX.22) implies that the debt to the Boeotians78 was considered to be public, and Demosthenes (XX. 149) explicitly states that Gelarchos was repaid out of common funds. One may conclude from the Demosthenes passage that the benefactors of the exiles in the Piraeus were individually reimbursed by decree, but that their repayment did not stir up controversy because lesser amounts of money were being disbursed at different times. The ancient sources give conflicting opinions on the question, whether or not joint repayment of the debt to Sparta constituted a violation of the reconciliation treaty. Aristotle (40.3) declares that the men of the City and the men of the Piraeus repaid in common though the reconciliation agreement bid that war debts be discharged ς ο μ ῆ separately; in contrast, Demosthenes (XX.12) states that the Δ 75 LaRest 382. 76 Isoc. XVIII. 16; XXI.2. X. II.4.28. 77 E.g., Kallimachos (Isoc. XVIII.48–49) who hadremained a member of the Three Thousand until the democrats threatened the City Walls andwhothenjoined the exiles in thePiraeus. WhenKing Pausanias intervened inthe civil war, Kallimachos fled to Boeotia. 78 Presumably, this is the same money which the Boeotians lent thedemocratic exiles to which Plutarch alludes (Lys 27.4).

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elected to repay the loan in common so as not to upset any of the agreements. Dorjahn79 argues that after the fall of Eleusis, a newfinancial arrangement was concluded which accompanied the reaffirmation of the amnesty, whereby all war debts were to be discharged jointly. Such a theory might explain the disparity between Aristotle and Demosthenes, if one presumes that the former is referring to the original agreement and the latter is alluding to a later modification of the treaty. Furthermore, it would tally nicely with the proposed date of the loan repayment to Sparta. There is no evidence, however, as has been demonstrated earlier, which points to an alteration of the reconciliation agreement after Eleusis ceased to exist as an independent community. Cloché80 understands Demosthenes to mean that the populace adhered strictly to the spirit of the treaty which in this case entailed a violation of the agreement. One may suspect Demosthenes of distorting for his own purposes the conclusion drawn from this historical example, since it was important for him in relation to the issue under debate to produce a precedent which showed that the People had kept its promise, although it was financially disadvantageous to them. Consequently, it may be deduced that this financial measure, strictly speaking, wasaninfraction of the reconciliation treaty of 403 B.C., but wasapproved by the Assembly after the fall of Eleusis because of the change in circumstances. This act of goodwill is ascribed to Archinos or to the moderate faction to which Archinos and Phormisios belonged.81 It is impossible, however, to assign responsibility for this proposal to any one individual or ideological party. As the speaker of Isocrates XVIII (23) reports, the democratic leaders, Thrasyboulos and Anytos, were capable of great generosity in their own financial affairs to promote compliance with the reconciliation agreement; and it is not unreasonable to suppose that they extended this magnanimous spirit to the affairs of the City. The repayment of all war debts on the whole favored the menof the City, since their obligation appears to have been greater, though, in the case of the oligarchic debt, it was in the interest of all Athenians to accommodate Sparta.

5. Confiscated Property The disposition of property confiscated andsold by the Thirty must have posed a major problem once the democracy had been restored, 79 Forgiveness 14–15, 23. 80 LaRest 380. 81 Cloché, LaRest 382–383. Levi, ComAr, II, 348–349.

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yet very little is known about its resolution outside the property provisions cited by Lysias. If there were additional regulations on this subject, no trace of their existence can be found in the sources. The few pertinent allusions illustrate more the kinds of difficulties faced by the returning exiles in their attempt to recover their confiscated property than the application of the property clauses of the reconciliation agreement. Passages in which movable property is at stake will be examined first, followed by a discussion of those which concern immovables.

The Against Hippotherses of Lysias,82 although it is the source of the property regulations of the reconciliation treaty, provides scant information about their application because of its fragmentary state of preservation. The property at stake, the details of the quarrel, and the kind of lawsuit are uncertain. One indisputable fact can be ascertained from what is extant. Although Lysias is intimately involved in the dispute, he does not deliver the speech himself since he is consistently referred to in the third person (e.g., lines 36, 43, 79); it was probably given by his patron.83 This process may be dated after the annulment of Thrasyboulos’ citizenship decree (mid to late 403/402 B.C.), but prior to the enactment of IG II2, 10 (401–400 B.C.).84 Much of the controversy concerning this speech surrounds the relationship of its title to the fragments. Its full title is Π ς Ἱπ π ο ρ ὸ νὺ ςθ ρα η ρτ π α ῆ ε ρ π σ ὲ θ έ ίν ς ; however, the role of the slave girl cannot η be determined since she is not mentioned in the text nor can sheplausibly be restored anywhere. Grenfell andHunt85 conjecture that Lysias was attempting through the agency of the slave girl to recover some property which Hippotherses hadbought during the reign of the Thirty and that the dispute terminated in the slave girl’s prosecution. T. Reiρ π έ nach86 set forth a more logical interpretation. He construes the ὑ ρ ί, “concerning the slave girl” , ε of the title as having the sense of π and concludes that after Lysias had returned to the City, he reclaimed one of his slaves sold by the tyrants. In turn Hippotherses, the purchaser, has brought suit against him. As Ferckel87 points out, a legal action undertaken against a slavewoman would not have been in keeping with her social or legal position. Furthermore, Lysias is the defendς ὴ α ν φ 82 Gernet-Bizos, LysDis, II, frg. I (= POxy, XIII, no. 1606, frgs. 1–6). Harp., s.v. ἀ ς . ο μ νυ ν ο α σ ὐ κ α ία ὶφ ρ ε , Ἱερὠ ά 83 For a discussion of the identity of the speaker, see: Loening, Hermes 109 (1981) 289. 84 For the argumentation about its dating, see: Loening, Hermes 109 (1981) 288–293. 85 POxy, XIII, 49–50. 86 “ Le plaidoyer de Lysias contre Hippothersès”, REG 32 (1919) 446–447. 87 Lysias 65. Gernet-Bizos (LysDis, II, 228–229), citing Demosthenes (XXXVII.51; LV.31), argue that a suit against a slave was admissible. It is not so much the slave girl’s social status, but hergender which renders anaction against her unlikely.

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ant in the case, as is evident from the speech itself (lines 183–184, 221–222).88 If the lawsuit has been prompted by a quarrel over the slave girl, why does she not play a prominent part in the speech? Of course, those critics who believe that the slave girl is the defendant in the case have alternate theories about the property under dispute. Grenfell and Hunt89 declare that among the confiscated goods of Lysias which Hippotherses bought were land and houses. There is no evidence, however, to support the hypothesis that the family of Lysias η σ τ . The passages which imply ις had been granted the privilege of ἔγκ that they owned immovables (Lys. XII. 18, Pl. Respub 328 b) are inconclusive, for it is equally possible that they merely rented several houses. Furthermore, a passage in this speech is interpreted as contraη γ σ : οὗ κ dicting the notion that Lysias was possessed of ἔ ις τ ςο τ ὔ ο τ ε γ ῆ ν[ο ὔ ]τ ᾽οἰκ ία νκεκτημέν ς(lines 43–44).90 Gernet and Bizos91 ο 32 precludes the object that the value of the goods cited in lines 31– possibility of the dispute involving the slave girl alone. It must be noted, however, that this property, of which the slave girl was presumably a part, represents all that had been sold and need not in its entirety be the object of litigation between Hippotherses and Lysias. If the slave girl was among the property which had been sold for seventy talents, it is scarcely surprising that Lysias should describe its disposition in detail, since it is relevant to the background of the present process. In addition, as several passages illustrate (lines 113–124, 184–207, 224–236), Lysias, much in the manner of the Against Eratosthenes, concentrates less on the immediate legal situation and expands the scope of the speech to include discussions of the character of the buyers of confiscated goods and the iniquitous ironies posed by

the property regulations of the reconciliation treaty. The property mentioned in lines 31–32 probably came from the armaments workshop which the family of Lysias operated in the Piraeus. The allusion to the death of Polemarchos (lines 7–10, cf. 161–162) suggests that the property at issue in this speech had been held in common by the brothers; namely, the shield factory. Furthermore, there are two apparent references to shields (lines 20, 66). From Lysias XII (8, 19), it is known that upon the arrest of Polemarchos, the Thirty confiscated from the armaments workshop, among other 88 Gernet-Bizos (LysDis, II, 229) explain these passages by remarking that it is natural to consider the master asthe defendant whenhisslave is being sued. 89 POxy, XIII, 50. 90 Reinach, REG 32 (1919) 444–445. Gernet-Bizos (LysDis, II, 230 n. 4) construe Hippoςthroughout the speech refers to Lysias. ο τ ὗ therses as the subject of this phrase although ο 91 LysDis, II,227–228.

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items, seven hundred shields and one hundred andtwenty slaves, some of which the oligarchs kept for themselves and the remainder were turned over to the Treasury. The slave girl will have been among the group of slaves offered for sale by the Treasury. To reconstruct the events leading up to Hippotherses’ lawsuit is a difficult task because the narrative section of the speech is so fragmentary. Upon his return Lysias was willing to buy back his property from the purchasers (lines 14–17), but wasunable to do so since Nikostratos had initiated a suit with Xenokles the seller. They seem to have been partners in this action rather than opponents. Ferckel,92 who supposeṣ the gap between fragments I and II to be small, restores [ἐ ρία π τ ο ιof line 32 with Nikostratos οin line 31 and associates οὗ ]ν τ and Xenokles. If this interpretation is correct, whom are they suing? ο ιin line 8 In all likelihood they are bringing suit ̣ against the ἐωνημέν ]ν ρία οin line 31. Nikostratos and who would be the subject of [ἐ τ π Xenokles would have been the first purchasers of Lysias’confiscated goods who in turn sold them to the ἐω μ έν ο η ι. Afterwards a quarrel ν developed which resulted in the lawsuit of Nikostratos and Xenokles against the buyers, either due to unfulfilled financial obligations or to contested ownership of some of the property. An account of this feud will have been contained in the lacuna between fragments I and II. μ έ ν ο ιwhich lines 73–74 η ν Hippotherses must have been among the ἐω appear to confirm. The proper names mentioned in lines 89 and 91–9293 may be the other purchasers. Although Hippotherses has undertaken the legal action, Lysias implies that he has more than one opponent; μ ν έ ο η ιas a group (lines 133–134, 232). namely, the ἐω ν A description of the dispute between Lysias and Hippotherses will have been found in fragments III and IV. Little information can be gleaned from this section. In lines 76– 86 someone, probably Hippotherses, citing his own misfortunes, has demanded one half the price of an object, presumably the slave girl, which Lysias angrily refused to pay for financial reasons. Therefore, once he had returned, Lysias had regained possession of the slave girl in some manner. Since he states that he was desirous of buying back his confiscated goods (lines 14–16), it does not seem logical that he would have denied compensation to Hippotherses, had he been entitled to it. Since Lysias objects to Hippotherses’ claim on economic grounds and the catalogue of his benefactions to the exiled democrats (lines 163–171) indicates that he still had plenty of money at his command despite hislosses during the 92 Lysias 66–69.

93 Grenfell-Hunt (POxy, XIII, 48) are tempted to restore in line 89 the name of Hieronymos which Harpocration cites from this speech.

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Agreement

oligarchy, it is possible that he had already purchased the slave girl from Nikostratos and Xenokles or one of the other ἐω μ έν η ο ι; but ν Hippotherses claimed her as his own. Or it may be the case that the slave girl was owned jointly by Hippotherses and one of his partners whom Lysias paid, and Hippotherses is seeking his share of the purchase price which Lysias denies to him on the pretext that he has already paid once. Nor is it certain what Hippotherses is attempting to gain by this lawsuit. Lines 76– 86 suggest that the plaintiff wants to recover his portion of the purchase price along with the damages that he would win, if his suit were successful. From other passages in the 228), it appears that Hippotherses is speech (lines 113–118, 224– striving to regain possession of the slave girl. Of the possibilities, the ̣ ̣ of Lysias’refusal to compensate Hippoformer is more likely in view τ ν(line 116), is to beconstrued generω νδὲὄν ῶ therses. The phrase, τ ally as the property of all returning exiles; and τ ]δ [ὰ ᾽(line 228) may simply refer to the financial loss which Lysias would incur, if the verdict were unfavorable. Consequently, the type of suit which Hippoηἐξού ςas η λ ηβλάβης,94 not a δίκ ίκ therses has initiated must be a δ some commentators95 have supposed. In the peroration, the best preserved section of the speech, where one would expect a recapitulation of the speaker’s arguments, Lysias has composed instead a personal apology andhasdenigrated the character of his adversary. His appeals are based on his moral superiority and do not contribute any additional information to the circumstances surrounding this case. The jury should reach its verdict on the basis of the contestants’ conduct towards Athens (lines 140–143). Lysias then proceeds to give proof of his patriotism by recounting his mis162), his services to the exiled fortunes under the Thirty (lines 155– democrats (lines 163–171), and his behavior since the restoration of the democracy (lines 171–181). Hippotherses, on the contrary, is accused of collaboration with the enemy during the reign of the Four Hundred and harboring unpatriotic sentiments of which he has never 203). In addition, he is characterized as a sycorepented (lines 184– phant (line 206, cf. 3). Lysias concludes the speech with biting irony (lines 224– 236, cf. 113–124). If he should lose, he will have suffered financial loss not only at the hands of the tyrants, but also the returned democrats. In contrast his adversaries will have received forgiveness for their actions during the oligarchy from the very people whom they had victimized as well as for the suit which they have now brought before the jury. Although Lysias’ rancor and indignation are under94 Reinach, REG 32 (1919) 445. 95 Gernet-Bizos, LysDis, II, 229–230. Grenfell-Hunt, POxy, XIII, 50. Ferckel, Lysias 70–71.

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standable in view of his sufferings and benefactions on behalf of the democracy, his failure to argue the legal aspects of the case intimates strongly that his position wasweak. It is not clear in what context Lysias cites the property provisions of the reconciliation treaty (lines 38–48), since the papyrus becomes unintelligible immediately after their quotation. Reinach96 suggests that additional regulations followed, whereby returning exiles could repurchase their confiscated movables from their new owners at the price at which they had been bought from the Thirty. Such a clause would have prevented profiteering on the part of those individuals who had acquired confiscated goods cheaply during the oligarchy and who later attempted to resell them to their original owners at an exorbitant price. There is no evidence, however, to support the existence of a provision of this kind; and none can be extrapolated from this speech. Ferckel97 interprets this passage more plausibly as a moral justification of Lysias’ conduct. The argument would have been constructed in this manner. Although buyers retained possession of confiscated movables, returning exiles can retrieve at no cost their unsold property and repurchase all of their immovables. Since Lysias did not own any immovables and none of his movables remained unsold, he has a legitimate right to buy back his goods. Lysias, no doubt, encountered difficulties after his return in reacquiring his property and may consequently have employed questionable means to obtain it. Therefore, he refers to the property provisions of the reconciliation agreement in order to vindicate his behavior rather than provide a legal foundation for his defense. Some critics98 imply that Lysias had possession of the slave girl in violation of the reconciliation treaty. They theorize that he hadforcibly seized her or that she hadreturned to him of her own accord. As a sold movable, she would have rightfully belonged to Hippotherses. If this were the case, however, it is indeed odd that Lysias invokes the reconciliation agreement in his behalf. According to the reconstruction proposed above, Lysias has attempted to buy back the slave girl; and Hippotherses is suing him in order to get the recompense which he claims to be owed to him. Therefore, it is Lysias’financial obligations to Hippotherses, not the ownership of the slave girl per se, that are being contested. Consequently, neither has Lysias defied the property clauses of the reconciliation treaty; nor are they directly relevant to this process. 96 REG 32 (1919) 448. Cf. Gernet-Bizos, LysDis, II, 252 n. 1. 97 Lysias 70. , ArchP 98 Ferckel, Lysias 70. A. Körte, “Literarische Texte mit Ausschluss der christlichen” 7 (1923) 157.

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The speaker of Isocrates XVIII (23–24) cites the democratic leaders, Thrasyboulos and Anytos, for their restraint from initiating legal action to recover the property which they had lost during the oligarchy. Although deprived of much property and cognizant of the persons who had deposed it, they respect the property provisions of the reconciliation agreement in the same way as the rest of the citizens despite their pre-eminent position in the City at the time. Two points require emphasis. The property to which the speaker refers μ ά τω )99 and was therefore not ρη ν consists of confiscated movables (χ recoverable under the terms of the reconciliation treaty, if they had been sold. The legal action which Thrasyboulos and Anytos are said to have refrained from bringing was not intended to regain possession of their lost property, but to seek damages from those men who had deposed it. Otherwise the possessors of these goods would have been designated as the potential defendants, not the ἀ ψ ς.100 α ρά ν τα γ ο π The question, whether or not damage suits violated the amnesty, will be considered later. ρ ς(Isoc. XVI.46) ὶτ The younger Alkibiades states in the Π ο υ ο ε ῦζεύγ that upon the return of the exiles, when others were regaining possesς sion of their property, he alone was deprived of land which the Δ μ ο ῆ gave back in lieu of confiscated goods because of the power of his enemies. This passage corroborates the testimony of Lysias regarding the property provisions of the reconciliation treaty. Immovables such as land (γ ῆ ν ) were restored to their previous owners, whereas movables υ ε μ η which had been confiscated and sold during the oligarchy (δ ) were retained by their purchasers. In this context ν ω τ ά θ έν τ ω νχρημ ςhas a more general meaning and refers to all recoverable propο ὐ ία σ erty under the terms of the reconciliation agreement; namely, allimmovables and any unsold movables. Since the younger Alkibiades was a child at the time of the oligarchy (Isoc. XVI.46), it is doubtful that he owned the land to which he alludes. In all probability it belonged to his father and was confiscated by the Thirty. After the restoration of the democracy, the property did not revert to the estate of Alkibiades the elder.101 It is impossible to verify the legitimacy of Alkibiades the younger’s claims to the land and his contention that he wasdefrauded μ α τ α meaning movable property, see the discussion of Isoc. XVI.46 which immediρή 99 For χ ately follows. Cf. Lys. XII.83. ψ ςreceived three-quarters of the property at issue, if it were judged to α ρά ν τ ε γ 100 The ἀ π ο be public; the remainder went to the State (Harrison, LOA, II, 212). Thedeposers, however, were unlikely to retain possession of their premium in its entirety, but were apt to keep those goods which they could useandto sell the rest at a profit. 101 Alkibiades the elder is said to have bequeathed to his children less than he hadinherited from hisguardians (Lys. XIX.52).

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of it by the machinations of his enemies. His assertion, however valid it may be in relation to his own situation, does suggest that some individuals did not succeed in regaining property which the reconciliation agreement permitted them to recover. In view of the magnitude of the confiscations during the reign of the oligarchs, it is not surprising that some goods, especially immovables, did not find their way back to their rightful owners for a variety of reasons: contested ownership, disputes over succession, inability to compensate the purchaser, or possession by one of the émigrés in Eleusis. A certain Antiphon is reported among the victims of the Thirty by Xenophon in the speech which he attributes to Theramenes (II. 3.40). Plutarch (Moralia 833A) alludes to an Antiphon executed by the oligarchs in whose daughter’s behalf Lysias composed a speech.102 Four fragments of this speech have been identified among the papyri in the collection of the Nationalbibliothek in Vienna.103 The date of this process cannot be decided, but one may speculate that it took place soon after the restoration of the democracy. The legal context of the speech, insofar as it can be reconstructed, must be pieced together from the reference in Plutarch and the extant fragments. It is learned from Plutarch that Kallaischros is claiming Antiphon’s daughter in marriage. It may, therefore, be presumed that Antiphon did not leave a male heir so that his daughter became the sole inheritor. In accordance with Attic law, an heiress’closest male relative wasentitled π to marry her. A legal procedure (ἐ ιδικ α σ ία ) was required to assure that she passed to the appropriate kinsman; and if there were more than one claimant, the issue was settled by a δια δικ α σ ία . The extant fragments, however, allude not to guardianship, but to a dispute over ownership of a farm and other immovables.104 Few details are preserved. Epistratos, whose relationship to Antiphon or to the other principals is unspecified, pretended for five months after the death of Antiphon that a farm of Antiphon’s belonged to him in order that he might save it for Antiphon’s daughter. The Thirty confiscated it eventually (frg. 1, col. I, lines 1–15). Sometime after the trial of Anti102 Plutarch adds that Theopompus mentioned an Antiphon slain by the Thirty (no. 115, frg. 120, FGrH II B, 563) and identifies him as the father of the subject of the Lysianic speech.

103 H. Gerstinger, H. Oellacher, and K. Vogel, Pap. Rainer, N.S., I, 97–100, 104–105, no. 4; III, 93–94. Of the remaining fragments of this papyrus, none can be XIII, frgs. 1– assigned with certainty to this speech. 104 Since this papyrus seems to contain only speeches which are concerned with inheritance cases involving heiresses, Oellacher (Pap. Rainer, I, 104) suggests that only the portion of the speech which describes the quarrel over Antiphon’s estate hasbeen included in the collection.

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β β α ε ιώ phon, an unnamed individual105 suedPyronides in a δ η σ ς106 εω ίκ 8). although the deposit had been given back (frg. 2, col. II, lines 1– In the third fragment it appears as if Pyronides is laying claim to Antiphon’s estate or a portion thereof (frg. 3, col. II, lines 2– 9). The final fragment alludes again to the farm as well as a house (frg. 4, col. I, 8). The relationship of Pyronides to Antiphon’s daughter and lines 1– to Kallaischros is best explained by one of the following conjectures. Pyronides may be the husband of Antiphon’s daughter and as such, assumed control of his father-in-law’s property upon his death. According to Attic law, Kallaischros, the nearest male relation, could have the marriage dissolved and marry his kinswoman, provided that the husband of the heiress had not been adopted by the deceased and the union had not produced male progeny. Consequently, Kallaischros would be contesting not only for custody of Antiphon’s daughter, but also for control of his estate. Pyronides, on the other hand, maybe another male relative who is a rival claimant to the hand of Antiphon’s daughter. In such a situation the issue of guardianship was submitted to the courts which adjudicated the matter according to the order of succession prescribed by law. It may be that Pyronides usurped the rights of the closest male relation after Antiphon’s condemnation because Kallaischros was in exile; but once the refugees returned after the restoration of the democracy, Kallaischros challenged the legitimacy of Pyronides’ claims to custody of Antiphon’s daughter. Consequently, the speaker, either Kallaischros or his advocate, refers to the β α ιώ ςin order to demonstrate that even prior to the current ε σ ε ω ηβ δ ίκ action the right of Pyronides to exercise authority over the estate of Antiphon wasquestioned. It is significant that the property under dispute consists exclusively of immovables. This fact tallies well with the provisions of the reconciliation treaty which return all immovables and any unsold movables to their original owners, in this instance to the estate of Antiphon. Any movables which had been confiscated and auctioned off would have remained in the possession of the purchasers. In view of the large number of persons executed by the oligarchy, conflicts over the order of succession (especially in the event of intestacy), wills, and the recovery of the decedent’s confiscated immovables by the heirs must not have been uncommon. As this case suggests, the property regulaβ α ς ιώ σ β ε ε ω η ίκ (Pap. Rainer, I, 104) concludes that Kallaischros brought the δ 9) in which Pyronides himagainst Pyronides; however, in light of frg. 3 (col. II, lines 2– self appears to lay claim to Antiphon’s estate, it is improbable. It is unknown what sale of property occasioned this suit. Presumably, the property in question wasone of the immovables belonging to Antiphon’s estate.

105 Oellacher 106

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tions of the reconciliation agreement applied equally to the property of the dead andof the living. ρ ὶτ γ ςκλήρου.107 ο έν Δ ῦ ο ιο υ ε Little remains of the Lysianic speech, Π Gernet and Bizos108 connect this work with another attributed to Lyρ ὶτ ο ῦΔικαιογέν υ ςκλήρο . The idenο υ ε π α ν ςΓλα ω ὐ κ ρ ὸ sias entitled Π tification is based solely upon a reference in Photius (s.v. ἀ ν τιδικ ο ῦ μ ε ν ) who cites the speech as Π ςΓλα ύ ρ ὸ κ ρ ω ν απ ὶτ ε ο ς ῦΔιογέν ο υ ρ ο υ ή . The association must be dismissed as inconclusive since Phoκ λ tius may simply have written Diogenes for Dikaiogenes because of the similarity of names and subject matter. Even though it is impossible to ascertain the particulars of this suit from the fragments, several general conclusions may be made. The speech is cited twice by Harpoέ κ ακ α ὶδεκαδοῦ ς χ ,Μ ο ό cration in reference to the oligarchy (s.v. δ λ ). This fact suggests that Diogenes wasa victim of the Thirty’s perπ ις secutions and as a consequence that his possessions were confiscated and offered for sale. One fragment109 implies that the order of succession wasbeing contested. Diogenes’wife may have had a son by a previous marriage whom he adopted, and the adoptee’s right to inherit may have been challenged by Diogenes’ family. The date of this process cannot be pinpointed, but may be safely assigned to the period soon after the restoration of the democracy. It is uncertain whether or not the property provisions of the reconciliation treaty specifically came into play in this action; but this speech, just as the Concerning Antiphon’s Daughter, serves as an indication that there were widespread conflicts over inheritance occasioned by the pattern of execution and confiscation during the oligarchy which the democratic courts had to resolve. One may imagine that in many instances the property regulations of the reconciliation treaty were invoked to support an heir’s claim to a piece of property that hadbeen owned by the decedent.

107 Gernet-Bizos, LysDis, II, 267–268, frg. XXIII, nos. 3–5. 108 LysDis, II, 243–244. 109 Gernet-Bizos, LysDis, II, 267, frg. XXIII, no. 3.

Chapter

III

THE APPLICATION OF THE AMNESTY PROVISION

The most celebrated clause of the reconciliation treaty wasthe amnesty provision. Undoubtedly, after the reconciliation agreement had been negotiated, there was uncertainty on the part of both factions whether the amnesty would be a success. The ancient sources report attempts to violate the amnesty and the remedies applied to prevent their repetition. Aristotle (40.2) states that Archinos brought before the Council one of the returned exiles who had acted contrary to the amnesty and argued that this manshould be executed without a trial because his death would serve asanexample to all of the consequences η ν σ ὴμ ικ α κ ε ῖν .1 After he had been of not obeying the prohibition μ put to death, nooneever dared to violate the amnesty again. According to the speaker of Isocrates XVIII (2, cf. 26), Archinos introduced the ήbecause of attempts to upset the amnesty. Nepos (III.3) ρ α φ γ ρα π α declares that Thrasyboulos, whom he credits with proposing the amnesty, supervised its enforcement. When several of the returned exiles wished to execute some of the men of the City, he restrained them, adhering to his promise.2 Xenophon (II.4.43), on the other hand, does not mention any plots to overturn the amnesty, but simply says that ςabided by its oaths. μ ο ῆ the Δ Although the statements of the ancient authors may be hyperbolic, it does not necessarily mean that they inaccurately reflect the conditions in Athens in the years following the restoration of the democracy. As Cloché3 observes, three conclusions maybe drawn from these references. Individuals sought to contravene the amnesty although it is unknown howwidespread the practice was.4 Secondly, the democratic leaders were strenuously working on behalf of the amnesty. In large part it wassuccessful. 1 For a similar sentiment, cf. Isoc. XVIII.47. (Arist u. A., II, 223) believes that the source upon which Nepos depended has transferred credit for this action from Archinos to Thrasyboulos. Since both Xenophon

2 Wilamowitz

(II.4.42) and Isocrates (XVIII.23) attest that Thrasyboulos counselled compliance with responsibility for this

the reconciliation treaty, there is no reason to deny Thrasyboulos

action.

3 LaRest 299. 4 One may not make a conclusion from the sources since they arevague on this point. IsoςandNepos (III.3) quidam ex iis. υ ίο crates (XVIII.2) merely says ἐν

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It is the aim of this chapter to evaluate the assertions of the ancient by examining the application of the amnesty in its various in light of all the surviving evidence. Eligibility to receive forgiveness will be discussed first, andthen the relationship of the amnesty to the political rights of the Three Thousand and the cavalry will be considered. After a brief excursus on the courts in the restored democracy, the effect of the amnesty upon judicial processes arising from the events of 404/403 B.C. and upon those stemming from disputes which originated before the oligarchy will be studied. sources aspects

1. Eligibility toReceive Amnesty

As has been discussed earlier, nothing in the wording of the amnesty provision indicates that anyone but the officials of the oligarchy were excluded from its benefits. In several speeches of Lysias, however, speakers claim that their opponents are not entitled to take advantage of the amnesty. They suggest three circumstances in which the amnesty could not be invoked: if both accuser and defendant had belonged to the same faction, if an individual had not been a member of either party, or if a person were a non-citizen. The adversaries of Agoratos (XIII.89–90) maintain that the reconciliation agreement is irrelevant to the defendant’s case. They argue that it hadbeen concluded between the menof the City and the men of the Piraeus andthat hadthey andAgoratos been members of opposing factions, the amnesty would apply. But since both accusers and defendant had belonged to the same party, the reconciliation treaty is not pertinent; for members of each faction had not sworn oaths of amnesty among themselves.5 The question is not whether Agoratos could receive amnesty, as Cloché6 poses it, but whether the amnesty could be cited in a legal action between opponents of the same faction. The argument of Agoratos’accusers may be safely rejected since there is evidence to the contrary. In Isocrates XVIII the speaker resorts to ήbecause he believes Kallimachos’ suit to violate the amρ α φ γ ρα π α nesty. Although both litigants in this action had belonged to the City Party, there is no trace of protest in this speech that the defendant could not invoke the amnesty on his own behalf because both contestants had been members of the same faction. Furthermore, as has been pointed out before, an individual in many instances could not be 5 This statement is technically correct; however, the fragments of the oaths (And. I.90–91) make clear that persons swore to forgive the past of everyone (except the oligarchic officials), not merely that of the members of the opposing faction. 6 LaRest 336–338.

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easily categorized as a member of the City Party or of the Piraeus Party. Consequently, restricting the benefits of the amnesty in the manner that the prosecutors of Agoratos suggest would have been difficult, if not impossible, to enforce. Andocides is said to be ineligible to receive amnesty because he had not been among the menof the City or the menof the Piraeus (Lys. VI. 39). This argument appears to be asspecious as that usedbytheaccusers of Agoratos. In the registration provision of the reconciliation agreement (Arist. 39.4), accommodation is made for individuals non-resident in Athens at the time to return and enroll for Eleusis. The majority ςare probably those persons who fled the City ο μ ῦ ν τ ε of the ἀ δη ο π when the victory of the democratic forces hadseemed inevitable; however, there is no reason to exclude from this group menwhohadbeen absent from Athens during the reign of the oligarchy. Thus, it appears that individuals who, strictly speaking, had belonged to neither faction were included in the amnesty. A remark by the speaker of Lysias XXV raises the question whether or not non-citizens could avail themselves of the amnesty. He implores the dicasts to abide by the reconciliation agreement in regard to all citizens (34, cf. And. I.90). His statement, however, must not be construed as definitive. If the amnesty were limited only to citizens, it is curious that the prosecutors of Agoratos who expend so much energy in challenging the defendant’s pretensions to citizenship do not level this objection against hisinvocation of the amnesty. Therefore, it may be inferred that Athenian residents, regardless of their political status, could take advantage of the amnesty. Litigants attempted by a variety of interpretations to persuade juries that their adversaries were ineligible to receive amnesty; however, upon closer scrutiny of these arguments, it maybe seen that they are fallacious. The amnesty provision, framed in simple but broad terms, permitted everyone to seek unconditional pardon except the Thirty, the Ten of the City, the Eleven, and the Ten of the Piraeus.

2. The Amnesty andthePolitical

Rights

of the Three Thousand

The reconciliation treaty, as it is preserved, does not assure the City Party the exercise of political rights. One may infer, however, that the former members of the Three Thousand were not prevented from participating in the government of the restored democracy. Xenophon (II.4.43, cf. Lys. XII. 94) implies that the entire citizen body wasin charge of the City’s affairs. The reconciliation agreement (Arist. 39.5) allows the émigrés to hold magistracies in Athens, provided that

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they had moved back to the City; therefore, one may extrapolate that the citizens who had elected not to settle in Eleusis also retained ν α ι this right.7 Furthermore, the menof the City served asjurors at εὔθυ of the former oligarchic officials (Arist. 39.6) and at other processes (Lys. XII.92; XXVI.2). They attended the Assembly (Lys. XXVI.2, X. III.5.10–12) and no doubt held various minor posts in the bureaucracy. Consequently, there is no reason to suppose that the restored democracy diminished in any waythe political rights of the City Party. Although the men of the City were not legally barred from holding elective positions, the scrutiny which they had to undergo could pose a major obstacle to their accession to office. At this process, after the candidate had been asked a few prelimimary questions to establish his legal qualifications for the position,8 anyone could rise andoppose him; in turn, the accused was offered an opportunity to rebut the charges. A challenge wasnot necessarily based on the candidate’s competence, but often included a review of his entire life. Once the candidate had satisfied the preliminary requirements, the grounds for disqualification were not legally fixed. Thus, it is not surprising that members of the City Party were taxed with their conduct during the oligarchy; for a candidate’s political sympathies were a relevant criterion upon which he was to be judged since the citizenry had a legitimate right to reject for office men whose loyalty to the existing government was questionable. Dida candidate whowasbeing challenged on the basis of his behavior under the Thirty haveprotection against such ήcould not be employed since it did not ρ φ α γ ρα α a charge? The π apply to scrutinies.9 Nor does the amnesty appear to have sheltered him from such harassment since in the extant speeches for scrutinies from this period reference is freely made to his political affiliation during the civil war. It is absurd to propose that by negotiating anact of amnesty, the past could be completely erased from the public consciousness or that a public silence could be imposed wherein it was forbidden to allude to an individual’s conduct in the oligarchy. What

an act of political

forgiveness could accomplish wasto confer immunity from prosecution to persons who had committed crimes within the period covered by the amnesty. The enactment of the π ή ρ α φ γ ρα α by Archinos implies as much since it wasdesigned to supplement the 7 Cf. X. II.4.43. There is no distinction between the men of the City and the former

democratic exiles. 8 The candidate was first examined to determine that he wasan Athenian citizen, hadperformed his familial and religious duties, and had fulfilled his financial and military obligations to the State (Arist. 55.3). 9 The wording of the quotation of this law by the speaker of Isocrates XVIII makes clear ς ήwas intended solely for lawsuits (2): α , ικ ὰὅρκο ρ υ α ρ φ ντ α α ιςδ ιπ τ γ ά ζη ρα α that the π γ ρά ψ α ο γ σ ν φ ρα τ θ α εύ ιπ α ι ῷ . ιτ α ε ῖν ἐξ

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reconciliation treaty by granting procedural advantage to a defendant sued in violation of the amnesty. Therefore, since a candidate did not stand to be penalized for disqualification for office, citing his activities during the reign of the tyrants did not contravene the amnesty andwasadmissible at scrutinies as character evidence.10 There remain four speeches and a fragment of a fifth delivered at scrutinies for public office in which a candidate’s conduct during the oligarchy was at issue. Each speech will be investigated in order to ascertain what kinds of arguments, as they pertain to the oligarchy, were employed by accusers and defendants alike. Special attention will be paid to references to the reconciliation agreement and their relation to the amnesty. The speeches, all attributed to Lysias, will be considered in their probable chronological order: XXV, OnBehalf of Eryximachos, XXXI, XVI, andXXVI. μ ο υκα ή τ α λ ςἀ γ ία ύ π ο σ λ , Lysias XXV purports ε ο ω From its title, Δ to be a speech delivered in defense of a mancharged with subverting the democracy. Scholars11 agree, however, that this speech represents a scrutiny process rather than a criminal prosecution because of its position within the Lysianic corpus,12 the speaker’s reticence concerning a penalty in the event of conviction, andhis assertion of hisrights to share in the government (3, 10, 14, 23). Furthermore, the political tenor of the speech is more appropriate for a scrutiny than a lawsuit. The process took place before a dicastery (1, 3, 4, 9, andpassim) though one cannot glean for what office the speaker wasa candidate.13 The date of the speech cannot be determined precisely. Anallusion to the fall of Eleusis in 401/400 B.C. (9, 30, 35) provides a terminus post quem. The speaker’s emphasis on concord (20– 24, 27, 30), his appeals to adhere to the reconciliation agreement (23, 28, 34–35), and the warning of a possible plot to return by the oligarchic exiles (24) suggest a time soon after thereduction of the independent community of Eleusis when the reconciliation treaty hadjust been reaffirmed andAttica 10 Dorjahn, Forgiveness 32–33. 11 Blass, AttBer, I2, 511. Cloché, LaRest 159, 387–388. Frohberger-Thalheim, AusRed, I, 123. Gernet-Bizos, LysDis, II, 111. Rauchenstein-Fuhr, ARLys, I, 103. 12 This speech is interposed between two others which were spoken at scrutinies. Onemust point out, however, that the Palatine manuscript breaks off at the endof XXV; andin the missing portion, there was another complete speech, Κ α τ ὰΝ ικ γ ς(T. Thalheim, ρ ία ίδ ο υἀ Lysias: Orationes, [Leipzig 1913] frg. C), which is unlikely to havebeendelivered at a scrutiny.

13 Unlike the other Lysianic speeches composed for scrutinies (XVI, XXVI, XXXI), this speech and the one on behalf of Eryximachos (infra 106) were given before a dicastery instead of the Boule. In each case it is uncertain whether the candidate hasbeen rejected by the Boule and the speeches were delivered as an ἔφ ε α ιςto a dicastery or merely as a legally requisite second stage to the scrutiny process. For the role of a dicastery in a scrutiny proce4 andRhodes, AAP542–543, 614–617. dure, see: Arist. 45.3, 55.2–

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had been completely unified once again. Therefore, the speech was late in 401/400 B.C. or the year following.14 The identity of the speaker is unknown. Yet he is obviously an affluent citizen since hehasperformed manypublic services (12–13). His accusers are presumably Epigenes, Demophanes, and Kleisthenes, the three persons whom he reproaches at length for their sycophantish 35). The charge against the speaker appears merely to activities (25– have been residency in Athens during the reign of the Thirty and as a 2, 5). Hisopponents consequence, collaboration with the oligarchs (1– would not accuse him of collusion with the Thirty, if they could prove him guilty of any specific offense (5). Hehadnot been a member of the Four Hundred, nor had he held an archonship or a seat in the Council under the oligarchy (14). During the tyranny he wasnot guilty of any personal misconduct since he did not participate in the arrest of any person nor did he take vengeance on his enemies or promote the interests of his friends (15). Neither did he enroll anyAthenian on the blacklist,15 nor obtain a judgment of arbitration against anyone or enrich himself asa result of the City’s misfortunes (16). Thestrongest proof of his loyalty to the democracy is his exemplary behavior during the oligarchy whenhe hadevery opportunity to commit injustices (17). Furthermore, self-interest determines what form of constitution an individual prefers; and the system of government which is adopted at any one time depends upon the number of its adherents at that moment (8). The criterion which the jury should use to assess a citizen’s actions in the democracy is whether or not he would benefit from a change in constitution (10). The speaker, however, has never suffered any injury, public or private, during the democracy which would have induced him to desire the institution of an oligarchy (12). The distinction should be madebetween the Thirty andtheir partisans andthe remainder of the City Party who have done no wrong; and the latter should not be held accountable for the crimes of the former (1, 5– 6, 35), nor should they be despised because they elected to remain in Athens in order to save themselves andtheir property (18). The speaker given probably

14 Blass, AttBer, I2, 511–512. Cloché, LaRest 387–390. Frohberger-Thalheim, AusRed, I, 125. Gernet-Bizos, LysDis, II, 112. Rauchenstein-Fuhr, ARLys, I, 104 n. 1. ς(Isoc. XVIII. 16; XXI.2, ο γ λ ο τά υκα ο ρ δ ν ά σ υ Λ ὰ τ ε 15 This list is presumably identical with ὁμ Lys. On Behalf of Eryximachos, PRyl, III, no. 489, lines 116–118) andshould not be confused with the catalogue of the Three Thousand. It is not known what the exact nature of this list was, but it seems to have been composed at Lysander’s behest or with hisassistance in order to prevent prominent democrats andopponents of Sparta from being included among the Three Thousand. Perhaps as C. H. Roberts (PRyl, III, 109) andKrentz (Thirty 78) suggest, the individuals on this list, once they had been removed from the citizen rolls, were sent to serve among Lysander’s forces, though it seems equally plausible that they were hostages under hiscontrol.

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Provision

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concedes that he hadstayed in the City during the oligarchy, but asserts that he wasinnocent of all wrong-doing. He does not dispel, however, the impression that he favored oligarchy16 since he does not categorically state his opposition to oligarchy and support of democracy, but sidesteps the issue by explaining that a change in constitutions wasnot to his advantage. His motives for remaining in Athens, fear for his

safety and preservation of his property, are tactfully understated since they were unlikely to win sympathy among the former exiles who had lost much of their property during the oligarchy and whohadundergone many risks in their efforts to restore the democracy. The speaker is not content merely to defend himself against charges of complicity with the Thirty, but attacks those men who seek to chastise former members of the Three Thousand. The democrats are carefully divided into two groups: the radicals, such as his accusers, who act as sycophants andemploy the same methods in the democracy 31) andthe moderate which the Thirty had used in the oligarchy (29– leaders of the Piraeus Party (23, 28). The jury must repel the efforts of the former group because their actions pose a threat to the restored democracy. As the speaker explains, the excesses of one form of government engender the creation of another; just as the wickedness of the oligarchy occasioned the restoration of the democracy, the conduct of the radical democrats has twice produced an oligarchy (27). Furthermore, such sycophancy precludes the attainment of concord 24). The among the citizenry, the basis of any city’s strength (20– activities of the extremists play into the hands of the City’s enemies, the oligarchic exiles in particular, whohope to ally themselves to those slandered and disenfranchised by the democracy (20, 23, 24) and to arouse mutual suspicion instead of harmony, war instead of peace, distrust of Athens by the rest of Greece (30). The jury, on the contrary, is exhorted to follow the example of the democratic leaders and abide by the reconciliation treaty (23, 28). The oaths and covenants are the safeguard of democracy and grant immunity from the consequences of the past to the City Party and guarantee to the Piraeus Party the permanence of the democratic constitution (28). The speaker considers the jury obliged to respect the reconciliation agreement in regard to all citizens though he condones the punishment of those who perpetrated the evils, but remonstrates that those innocent of all wrong-doing during the oligarchy are being castigated as well

(34–35, cf. 18).

16 For example, the speaker praises the beginning of the Thirty’s reign (19) and comments upon the excesses of thedemocracy in the interval between the twooligarchies (19,25–26).

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Implicit in the speech is an admonition that if the radical democrats persist in their sycophancy, the democracy will be undermined and Athens will be vulnerable to an oligarchic revival or intervention from external enemies. The stability of the democracy depends upon the achievement of harmony which can only be accomplished by faithful adherence to the reconciliation agreement. The speaker does not invoke it on his own behalf because doing so would be an admission of guilt, but in support of the Three Thousand as a whole. Heurges the jury to interpret the amnesty in its most literal sense, to forget utterly the former allegiance of the men of the City and thereby to eradicate the prejudice against them in the restored democracy in order that they may be fully incorporated into all aspects of political life once again. Respecting the spirit as well as the letter of the reconciliation treaty is the most direct path to Athens’well-being. The accusation levelled at the speaker does not contravene the amnesty17 since residency in Athens during the reign of the Thirty wasnot a crime. Therefore, the amnesty, strictly speaking, is not relevant to this process because he has committed no offense for which he could receive pardon. As the speaker argues, holding anindividual’s membership in the Three Thousand against himconstitutes a moral violation of the reconciliation agreement. Whether or not the accused successfully persuaded the jury and gained office, cannot be ascertained. Twoadjoining papyrus fragments are all that remain of the Lysianic speech OnBehalf of Eryximachos.18 Preserved in its title is the phrase, μ ε ίν α ν τ ςἐ ο νἄ σ τ ε ι (lines 38–40). There is no doubt that the title refers to the period of the Thirty’s reign since there areseveral unmistakable 119). Several passages imply allusions to events of that time (lines 100– 73, 99–100, cf. 49, that it is a criminal prosecution (lines 62, 72– 60). They, however, are inconclusive since there is no reference 59– to a specific offense or to the penalty if the verdict is adverse. The charge which the title bears suggests a scrutiny because “having rewasnot a crime andmembers of theThree Thoumained in the City” sand whowere candidates for public office in the restored democracy were often challenged on the basis of their former affiliation with the City Party. The striking verbal parallels of this speech with Lysias XXV19 as well as the similarity of the accusation also point toward 17 Cloché, LaRest 159 n. 2, 391. Dorjahn, Forgiveness 32. 18 One fragment is in the collection of the British Museum (no. 2852) first published by H.J. M. Milne, “ A NewSpeech of Lysias” , JEA 15 (1929) 75–77; the other is in the John Rylands Library (no. 489). The two fragments are published together by C. H. Roberts in PRyl, III, 103–109. The numbering of lines is that adopted by Roberts. 81 and XXV.5, lines 108–118 and XXV.14–16. 19 Cf. lines 68–76 and XXV.13, lines 76–

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scrutiny rather than a lawsuit. The speech was given before a di51, 77–78, 109–110) though the position to castery (lines 42, 50– which Eryximachos had been appointed by lot cannot be ascertained.20 There are no allusions within the speech to indicate the date of its delivery; but because of its affinities with Lysias XXV, onemaytentatively place this speech in the same chronological vicinity, circa 400–

a

399 B.C. It is tempting to identify the defendant of this speech with Eryximachos, son of Akoumenos, the physician in Plato’s Symposium and participant in the profanation of the Mysteries in 415 B.C.21 Two arguments, however, render this association unlikely.22 The speaker states that he had been an enthusiastic benefactor of the People (lines 68–72), had saved his triremes at Aigospotamoi (lines 102–104), andhad ransomed one of his trierarchs after the demolition of Athens’ walls (lines 105–108).23 It is improbable that an individual who had suffered exile and confiscation for his involvement in the parody of the Mysteries should have attained once again a position of wealth and prominence in the City in such a short time.24 Furthermore, when Andocides (I.18) calls witnesses to affirm that his informations hadnot been responsible for the implication of certain menin theprofanation of the Mysteries, Alexippos, anephew, rather thanEryximachos, the son, testifies that Akoumenos hadbeen denounced by Lydos. Thefact that Eryximachos does not appear where one expects that he should suggests that he had died or had not returned to Athens from exile. Consequently, the identification of the subject of this speech with the physician of the same name must be rejected for lack of evidence.25 20 Roberts (PRyl, III, 105) rules out a scrutiny because no office is mentioned in the extant portion of the speech; however, several speeches delivered at scrutinies (Lys. XVI; XXV; XXVI) do not allude to the position for which the candidate is being examined. K. J. Dover (Lysias and the Corpus Lysiacum, [Berkeley 1968] 5) believes that this speech was infact spoken at a scrutiny onanalogy with Lysias XXV. 21 PA, I, no. 5187. 22 J. K. Davies, Athenian Propertied Families 600–300 B.C., (Oxford 1971) 463. Roberts,

PRyl, III, 104–105. 23 Davies (AthPropFam 463) and Roberts (PRyl III, 105) deduce from these lines that the accused wasa general at Aigospotamoi. 24 Davies (AthPropFam 463) cautions against this argument by citing the example of Adeimantos of Skambonidai (PA, I, no. 202); however, the resurgence of Adeimantos, like that of Alkibiades, must havebeen anexception. Davies also asserts that hadthe speaker andthe physician been the same person, he would have referred to his financial losses incurred because of his participation in the parody of the Mysteries in lines 65– 70. This argument, however, is not compelling since a defendant would scarcely be expected to allude to his role in anincident which continued to provoke public indignation. 25 Nor can either Eryximachos be firmly connected with the father of Eryxias, victorious choregus for Pandionis and Erechtheis in the boys’ dithyramb at the Thargelia (IG II2, 3063, circa 400–350 B.C.) or with the kinsman of Chabrias (D. XL.24). See: Davies, AthPropFam 463–464.

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The accusers (line 79), who are unnamed, apparently didnot charge Eryximachos with anything more than having remained in the City during the oligarchy and as a consequence, collaboration with the Thirty. If his opponents could revile him with any personal wrongdoing, they would not resort to the allegation of complicity with the oligarchs (lines 78–81).26 Eryximachos does not deny that he was among the Three Thousand, but claims that his deportment wasexemplary under the oligarchy. Neither had be been a member of the Council, nor had he held an archonship (lines 110–114). Neither had he had any of his enemies apprehended, nor had he obtained a judgment of arbitration against them, nor had he contrived to have them recorded on the blacklist (lines 114–118). The reconciliation agreement is not mentioned in the extant portion of the speech, but it is logical to assume that Eryximachos invoked it, just as the speaker of Lysias XXV did, in order to persuade the jury that the amnesty should apply morally as well as legally and that his membership in the City Party should not be held against himat his scrutiny. The charge against the accused is not a breach of the amnesty for the same reasons cited in connection with Lysias XXV though it may violate the spirit of the reconciliation treaty. As proof of his worthiness to hold office, Eryximachos relies more upon his good character and past performance (lines 60–64) than a strident attack on his radical democratic opposition as the speaker of Lysias XXV has done. One receives the impression from this speech that in contrast to Lysias XXV, it was more personal in nature than political and that it didnot address such a wide spectrum of issues. It is unknown whether or not Eryximachos was successful. Of the extant speeches composed for scrutinies following the restoration of democracy, Lysias XXXI is unique. Philon, otherwise unknown, has been selected by lot to serve as a member of the Council (2); but at the scrutiny an unnamed accuser, a Councilman (1–2), challenges Philon’s fitness to hold office. Unlike the other speeches written for scrutinies, the accused is not being reproached for collaboration with the Thirty or for oligarchic sympathies, but for his neutrality in the civil strife. The date of this process is unknown since there are no concrete chronological indications within the speech itself. Most critics27 place it shortly after the return of the exiles. There is one passage, however, which seems to provide a terminus post quem for the delivery of the speech. The speaker states that the metics have 81 are incomplete, their meaning can be restored from Lysias XXV 26 Although lines 80– (5), analmost exact verbal parallel. 27 Frohberger-Thalheim, AusRed, I, 162. Gernet-Bizos, LysDis, II, 173. Rauchenstein-Fuhr, ARLys, I, 133.

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been honored for their loyal service to the democracy during the civil war (29). This must be a reference to IG II2, 10 passed in 401/400 B.C. which granted certain privileges to the foreigners who had aided the democracy.28 Hence, a date soon after the enactement of IG II2, 10 is suggested; as Blass29 remarks, the speech may be assigned to 398 B.C. without danger of serious error. The accuser declares that the oath which he swore as a Councilman, not personal hostility, motivated him to challenge Philon’s candidacy (2). The accusation which the speaker elaborates upon most

is the conduct of Philon during the conflict between the oligarchs and the democrats. Philon was among those banished from Athens by the Thirty, and for a while he lived in the country (8). When the exiles moved from Phyle to the Piraeus, he went to Oropos andresided there as a metic under the protection of a patron (9). The accuser maintains that Philon does not deserve any forgiveness since he elected not to assist the democrats, but postponed his return until the restoration had been completed (9). He could have joined the democratic forces in the Piraeus when many exiles had come back to do so (8). Nor can Philon plead in extenuation of his absence from the Piraeus personal misfortunes, infirmity, or penury (10, 12) because it was by design that he did not participate (11). Furthermore, since he was a person of some means, he should at least have given financial help to the democrats; but he did not (14–15). Philon, on the contrary, will argue that had neutrality been a crime, there would have been a law forbidding it (27). It is reported in some ancient sources that Solon had promulgated such legislation;30 but if the tradition is reliable, one mayreasonably infer from this speech that the law had become obsolete or had been formally abrogated by this time since the speaker does not allude to it.31 Therefore, this accusation, like the arguments drawn from the mistrust of Philon’s mother toward her son, is intended to provide moral rather than legal grounds for his rejection from the Council.

cannot refer to the so-called Heroes of Phyle decree dated to 403/402 B.C. 295) since it confers only the most (Aeschin. III.187; Raubitschek, Hesperia 10 [1941] 284– modest honors upon the few citizens and foreigners who initiated the rebellion against the oligarchy.

28 This passage

29 AttBer, I2, 481. 30 Arist. 8.5. Cic. Att X.1.2. Gell. II.12. Plu. Sol 20.1. For arguments in support of the authen, Historia Solon’s LawForbidding Neutrality andLysias 31” ticity of this law, see: V. Bers, “ , Historia 21 24 (1975) 493–498, J. Goldstein, “Solon’s Law for an Activist Citizenry” (1972) 538–545. For opposing arguments, see: C. Hignett, A History of the Athenian 27. Constitution, (Oxford repr. 1975) 26– 31 As further proof that this law of Solon (if authentic) had fallen into disuse, one need only cite the speaker’s contention that no such legislation had ever been proposed because no lawmaker could have envisioned any citizen committing an offense of this kind (27).

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The speaker does charge Philon with a specific offense. Heandsome of his companions are said to have made raids throughout the country-

side during the civil war, robbing the elderly and infirm of their resources (17–19). The accuser asserts that the victims of Philon’s depredations cannot prosecute him because of the same infirmities which prevented them from coming to the aid of the democrats (18). It was, no doubt, the amnesty, not physical disabilities, which dissuaded them from bringing suit. Hadthey initiated legal action, Philon would have claimed protection of the amnesty and perhaps would have interposed ήsince the crime fell within the period encompassed by φ ρ α γ ρα α aπ the reconciliation agreement. The scrutiny of Philon serves as a good example that a description of an individual’s behavior during the civil war didnot in practice constitute a violation of the amnesty. From the speech itself it is apparent that neither Philon nor his opponent will cite the reconciliation treaty in support of their case. Had the mere mention of Philon’s conduct during the oligarchy contravened the amnesty, certainly he would have invoked it in his defense. It is impossible to discern whether or not Philon was disqualified from the Council; but it may be supposed that he enjoyed little support among the citizenry because, as the speaker argues (13), by remaining neutral in the civil conflict, he betrayed both the City Party and the Piraeus Party. Lysias XVI was composed on behalf of Mantitheos for his scrutiny before the Council.32 The name of the defendant is attested only by the title in the manuscripts and does not occur in the text of the speech; the accuser’s identity is unknown. It is uncertain for what position Mantitheos has been selected by lot. Commentators33 assume that he has been appointed to the Council or to an archonship. In support of their contention, they point to a passage in the speech itself in which Mantitheos declares that cavalrymen who had served during the oligarchy have been chosen to be Councilmen as well as hipparchs andgenerals after the restoration of the democracy (8, cf. Lys. XXVI. 20). Since only members of the Boule andarchons were subject to scrutinies by the Council (Arist. 45.3) and appointment to an archonship α σ ία before a dicastery (Arist. 55.2) to which required a second δοκιμ there is no allusion in this speech, it seems most likely that a seat in the Council wasat stake. The date of this process cannot be specified, but one may place it within definite chronological limits. Mantitheos took ῳἀ π ο γ λ ία ο μ , but also έ ν ζο ῇΜ ν α τι θ έῳδοκιμα υ λ 32 Not only the title of the speech, Ἐ νβο numerous passages throughout the speech (1, 3, 8, 9, andpassim) indicate that the scrutiny washeldbefore theCouncil. 33 Blass, AttBer, I2, 517. Cloché, LaRest 395. Frohberger-Thalheim, AusRed, I, 146. GernetBizos, LysDis, II. 4. Rauchenstein-Fuhr, ARLys, I, 121.

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part in the battles at Haliartos in 395 B.C. (13) and at Corinth in 394 B.C. (15). Furthermore, he alludes to the Battle of Koroneia in 394 B.C. (16). A terminus ante quem is suggested by a passage which seems to refer to Thrasyboulos of Steiria, the democratic leader (15). Since he is mentioned in a manner which indicates that he is still living, the speech must have been delivered before his death in 389 B.C. Therefore, this process occurred sometime between 394 B.C. after the Battle

of Koroneia and389 B.C.34 The accuser has alleged that Mantitheos had been a cavalryman during the oligarchy and a member of the Three Thousand (3). Mantitheos explains that his father hadsent him andhis brother to the court of Satyros on the Pontos before the Battle of Aigospotamoi in 405 B.C. and that they hadnot returned to Athens until five days before Thrasyboulos and the exiles moved from Phyle to the Piraeus (4). It would be unreasonable to expect him, having arrived at such a moment, to share in the dangers of others, or the Thirty to include him among the

Three Thousand when they were disenfranchising even those persons who had cooperated in the overthrow of the democracy (5).35 The cavalry lists do not provide conclusive evidence since the names of many who have confessed to serving are not inscribed while others who had been absent have been recorded (6); one could have easily contrived to have his name erased from these lists (7). Mantitheos contends that far better proof exists in the record of the phylarchs who, upon the return of the democracy, were entrusted with the responsibility of collecting the κ α τα σ τ ά σ ε ιςfrom the cavalry (6–7). Hadthe phylarchs not exacted these allowances from all whohadbeen given them, they would have incurred the financial loss themselves; and no one can show that Mantitheos had ever been listed by the phy7). larchs, reported to the syndics, or made to refund this money (6– If he hadbeen a cavalryman, he would not deny it, but would endeavor to pass his scrutiny by demonstrating that he had not harmed any citizen (8). None of the arguments adduced by Mantitheos prove incontrovertibly that he was not a cavalryman. The period after his arrival in Athens was one in which the ἱπ π ε ῖςhad played an especially prominent role. They supported the Thirty in the battle at Munychia (X. II.4.11); and once the Ten of the City had been installed, they were responsible for patrolling theperimeter of theCity, skirmishing occasion395. Frohberger-Thalheim, AusRed, I, 148. Blass, AttBer, I2, 518. Cloché, LaRest 394– Gernet-Bizos, LysDis, II, 7. Rauchenstein-Fuhr, ARLys, I, 122. 35 Mantitheos, in essence, states that hedidnot take sides in the civil warandmakes no apologies for it. His attitude is in stark contrast with that of the speaker of Lysias XXXI who reproaches Philon at length for hisneutrality.

34

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ally with the democratic forces (X. II.4.24–27). Furthermore, a contingent of Athenian horsemen was among the troops of King Pausanias which fought against the democrats in the Piraeus (X. II.4.31). Therefore, Mantitheos had ample opportunity to serve. The falsification of the cavalry lists indicates only that such records were not entirely accurate, but does not demonstrate that Mantitheos’ name had been mistakenly inscribed. Nor do the phylarchs’ lists necessarily supply reliable evidence since it is unknown whether all members of the cav. It may be that only ις ε σ ά τ σ α τ α alry or just a portion were issued κ those cavalrymen who could not equip themselves received this allowance from the government. Despite the assertion of Mantitheos that he was not wealthy (10), he may have been able to outfit himself from his own means. Although he protests that he was not a member of the cavalry, Mantitheos does not remove all suspicion since he does not account for his actions in the interval between his return to Athens and the restoration of the democracy. Consequently, it cannot be clearly established that Mantitheos was not a cavalryman during the oligarchy.36 Some critics37 imply that the accusation against Mantitheos violated the amnesty, and Gernet and Bizos find it noteworthy that he does not cite the reconciliation treaty in his defense. The amnesty, however, does not apply to the case of Mantitheos because cavalry service was not a crime and he is not charged with any other offense. He cannot be forgiven for crimes which he is not even accused of committing. Furthermore, it would be ludicrous to suppose that merely mentioning an individual’s cavalry service during the oligarchy constituted an infraction of the amnesty when membership in the cavalry wasa matter of public record. If such were the case, one would have to assume that consulting the cavalry lists waspermissible aslong as they were not cited aloud in a legal action. Invoking the reconciliation agreement, even on moral grounds, would have been tantamount to admitting that the accuser’s allegation was correct; so it is not surprising that Mantitheos does not allude to it. Whether or not he wasvictorious, it is impossible to determine. The circumstances in which the scrutiny of Euandros (Lys. XXVI) took place were extraordinary. Leodamas had been the first man chosen by lot to serve as archon, but had been rejected at his scrutiny by the Council through the efforts of Thrasyboulos of Kollytos (13). Euandros, the alternate selection, appears before the Council to undergo 36 Cloché (LaRest 396) andGernet-Bizos (LysDis, II, 6) believe that the argument drawn from the phylarchs’lists is decisive in favor of Mantitheos. 37 Frohberger-Thalheim, AusRed, I, 144. Gernet-Bizos, LysDis, II, 5.

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ίαon the penultimate day of the year (6); and the speaker σ his δοκιμα of Lysias XXVI, a friend of Leodamas (15) and enemy of Thrasyboulos of Kollytos (23–24), challenges his candidacy. The date of this process may be determined precisely. A general terminus post quem is provided by the allusion to the surrender of ships by Thrasyboulos of Kollytos (23); Xenophon (V.1.27) reports this incident among the events of 387 B.C. As Diodorus (XV.20.1.) discloses, the eponymous archon for 382/381 B.C. was named Euandros. That the eponymous archonship is the magistracy at issue in this process is indicated by a passage within the speech itself. The speaker declares that if Euandros is approved, he will have jurisdiction over orphans and heiresses (12). 7) lists among the administrative duties of the eponyAristotle (56.6– mous archon authority over matters relating to orphans and heiresses. Therefore, it is natural to identify the defendant with the eponymous archon and date this speech to the final days of 383/382 B.C.38 The beginning of the speech has not survived, and there is no way to reckon the length of the missing part. The lacuna may have contained other allegations regarding Euandros’ fitness to hold office. The speaker’s accusation, as it appears in the extant portion of the speech, comes in the form of responses to the anticipated arguments of the defense (3, 6, 16). Euandros will claim that he is an orderly person and minds his own business (3); but his accuser, while stipulating that Euandros has led a quiet life since the restoration of the democracy, argues that his actions during the oligarchy are far more worthy of investigation (5). Euandros hadbeen a member of the Council and a cavalryman under the Thirty (10, cf. 3).39 With one exception the speaker does not charge Euandros with specific offenses (1, 3, 10, 12), but links him generally with the subversion of the democracy (4, 9) and the excesses of the tyrants (13, 18). It appears that Thrasyboulos of Kollytos may have tarred Leodamas with the same brush which the accuser uses against Euandros. From Aristotle (Rh II.23–24) one learns that Leodamas had also been characterized as an opponent of the democracy.40 The one specific crime of which Euandros is accused is homicide. He is described as having unclean hands (8); and the speaker remarks upon the irony of Euandros becoming a member of the Council of the Areopagus once his archonship had ended, judging murder suits when it is he who should be prosecuted for murder (12). Furthermore, he 38 Blass, AttBer, I2, 476–477. Cloché, LaRest 398–399. Gernet-Bizos, LysDis, II, 128. 39 Blass (AttBer, I2, 477 n. 5) states that this passage is not decisive evidence that Euandros hadbeen a cavalryman or Councilman during the oligarchy. 40 Gernet-Bizos (LysDis, II, 127) conjecture that Leodamas hadbeen inscribed as an opponent of the People because of hisinvolvement in the government of the Four Hundred.

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notes the paradox of Euandros, as archon, exercising authority over orphans and heiresses when he has been responsible for the deaths of some of their parents. One need not regard this accusation seriously since it is expressed in such general terms. Euandros is not charged with having committed any particular homicide, but is depicted as a murderer because of his affiliation with the Council during the oligarchy when that body regularly hadcondemned individuals whom the tyrants had selected for extermination.41 It is evident that Euandros hadnever been prosecuted for homicide and that it is only by a loose definition of murder which allows himto be characterized as a murderer. The speaker offers a narrow interpretation of the purpose of a scruιwere established in the main ία σ α tiny process. He states that δοκ ιμ

in order to prevent magistrates of the oligarchy from regaining power in the community which they had abused so badly (9). He even goes so far as to espouse the disqualification for office of all who had served in the cavalry or had been Councilmen during the oligarchy (10, cf. 15). The argument that scrutinies were designed to keep those whohad participated in the oligarchic government from holding office in the democracy is scarcely persuasive since it is a transparent attempt to limit the criteria upon which a candidate should be evaluated to only those which he can demonstrate against Euandros. The Council is informed by the accuser that Euandros will argue that his scrutiny affects not only him, but the entire City Party (16). In addition, he will invoke the reconciliation agreement in his own behalf (16). The speaker then counters with an unconvincing, sophistical argument. First, he divides the men of the City into two groups (16): those persons, like Euandros, who helped the oligarchs to perpetrate their crimes and others who, though they had remained in the City, opposed the actions of the Thirty. According to his view, this latter group is more worthy of recognition than the democrats because they have been tested during the oligarchy andthe democracy, whereas the democrats have not been put to the proof under each form of government (17). In return for their cooperation with the exiles, the moderate members of the Three Thousand have subsequently been honored by appointments to cavalry commands, generalships, and embassies (20). AsGernet and Bizos42 observe, the speaker apparently attributes the return of the exiles to the exertions of the mild oligarchs rather than to the insurgency of the democrats (18–19). Heconcludes by stating that scrutinies were instituted because of wrong-doers like ) were negotiated because of ς ή κ α θ Euandros andthat agreements (σ ν υ 41 Blass, AttBer, I2, 477. Gernet-Bizos, LysDis, II, 126, 131. 42 LysDis, II, 128.

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men like the moderates of the City Party (20). What the speaker implies, but stops short of declaring, is that persons, such as Euandros, who had been ardent supporters of the oligarchy could not take advantage of the reconciliation treaty. Instead, he argues that only those members of the Three Thousand whom he hasdesignated as loyal were to be affected by the reconciliation agreement and that they alone should benefit from it. The speaker retreats from his plea for categorical rejection of former cavalrymen and members of the Council and now asserts that the basis for approval should simply be whether or not the individual has committed any crimes during the oligarchy. One may surmise the manner in which Euandros appealed to the reconciliation treaty. He will have advanced the notion that it, the amnesty in particular, forgave him as well as many others their involvement in the oligarchic government and that the fact that he has been a lawabiding citizen since the restoration of the democracy, which the accuser concedes (5), is the only relevant criterion upon which theCouncil should make their decision. If Euandros is rejected merely for his previous oligarchical affiliation, the entire City Party will be in danger of being deprived of their political rights. This speech is sometimes considered to be a violation of the amnesty or an attempt to undermine its authority. Ferckel43 claims that the accuser contravenes the amnesty by calling Euandros a murderer on the basis of a homicide for which he cannot be prosecuted because of the reconciliation treaty. It, however, didnot afford him immunity for any homicide which he may have committed, provided that the charge was direct murder. As has been discussed, the meaning of α ία χ ειρ ὐ το was flexible enough to embrace a variety of situations. Though such slander may violate the spirit of reconciliation, it does not represent a legal infringement of the amnesty since Euandros is not brought to trial for a crime which was covered by the amnesty. Similarly, the speaker’s call to disqualify for office all who had served in the cavalry and Council under the Thirty and his specious interpretation of the reconciliation agreement are not a legal, but a moral violation of the amnesty. These arguments do not advocate the nullification of the reconciliation treaty, but seek to persuade the Council that its benefits as well as accession to magistracies had not been intended for the City Party as a whole, but only for the less compromised members of the Three Thousand. The speaker tries to revive the factional hostility which had existed twenty years earlier. Initially, it seems surprising to find this kind of vituperation at such a late date when the principals of the oligarchy had grown elderly, died, or fled Attica. The appeal 43 Lysias 134.

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to party loyalties may in fact signify that the reconciliation treaty was operating well. As in the Against Eratosthenes, the rhetorical division of the citizen body into its old factions appears designed to reawaken enmity that had become dormant once the reconciliation had been made andhadachieved a measure of success. In view of the weakness of the speaker’s arguments, it comes as no surprise that Euandros did in actuality become archon. One suspects, as Gernet and Bizos44 do, that the accuser’s opposition to Euandros stems more from his rivalry with Thrasyboulos of Kollytos than from his public-spiritedness. Thus, there mayhave been an additional motive for his method of attack. Since Leodamas had apparently been portrayed as inimical to the democracy, the speaker may have retaliated by depicting Euandros as an even more fervent enemy of the People. As the speeches for scrutinies show, candidates for public office in the restored democracy were often reproached with “having re. mained in the City”or “having been a cavalryman in the oligarchy” η σ ικ ν α κ ε ῖνis literally construed, these allegations may be said ὴμ If μ to violate the amnesty. It is evident, however, that the amnesty provision was designed to extend protection to individuals for crimes committed during the oligarchy. Consequently, such accusations did not technically contravene the amnesty since they were not actionable offenses,45 although they may not have been in keeping with the spirit of reconciliation. The case of Philon demonstrates that pot only the men of the City, but also the democratic exiles were challenged on account of their behavior during the oligarchy. It is not possible to gauge how widespread or how successful these verbal attacks against the former members of the Three Thousand were. The speaker of Lysias XXV gives the impression that such charges were common and politically inspired. One must not place too much credence in his statement because it may have been exaggerated in the hope of winning sympathy. As Cloché46 cautions, many accusers may have claimed public interest as their motivation in order to mask their personal enmity. Few names are preserved of the men of the City who served as officials under the restored democracy. Of those who had emigrated to Eleusis, none are known to have resettled in Athens and subsequently to have entered public office either before or after the fall of the oligarchic settlement. Of those whohadcontinued to reside in the City, Rhinon became a general soon after the reconciliation agreement (Arist. 38.4) and is restored as a treasurer of 44 LysDis, II, 126–127. 45 That membership in the Council during the oligarchy was not against the law, see below the discussion of Epichares’situation. 46 LaRest 387.

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Athena for 402/401 B.C.47 Kephisophon, one of the private citizens sent to Sparta to negotiate for the City Party (X. II.4.36), appears as μ ςκ α τ α ρυ ε ὺ τ ὰπ τα ν ε ία νin 403/402 B.C.48 and as a treasurer a γραμ of Athena and the Other Gods in 398/397 B.C.49 Furthermore, it is reported that many members of the City Party later served as hipparchs, generals, ambassadors, andCouncilmen (Lys. XVI.8; XXVI.20). Although it is hazardous to make conclusions from such limited information, it appears that sentiment against the former members of the Three Thousand reached its peak, as one might expect, just after the restoration of the democracy (Arist. 40.2, Isoc. XVIII.2, Nep. III.3) and the reduction of Eleusis (Lys. XXV) andthen gradually declined. Consequently, by the time Mantitheos and Euandros were being scrutinized, “having remained in the City”and “having been a cavalryman in the oligarchy”were accusations which adversaries routinely used against their personal enemies and were no longer persuasive since candidates could point to many men of the City who had held office in the restored democracy.

3. The Amnesty andthe Cavalry In the years immediately following the restoration of the democracy, several actions were undertaken that exclusively concerned the cavalry. Each will be discussed in order to discover its intent and effect ε ῖςunder the π so as to form a conclusion about the position of the ἱπ democratic regime. Mantitheos reports that soon after the restoration of the democracy, the phylarchs were entrusted with the task of making a list of those who had been cavalrymen under the Thirty so that the κα σ ις σ τα τά ), beα ά σ τ α σ ις τ could be recovered (Lys. XVI.7). Harpocration (s.v. κ sides referring to this passage, cites Eupolis and Plato Comicus as his ιςwas an allowance given to authorities. He states that the κ σ σ τά τα α members of the cavalry to equip themselves which wasreturned to the Treasury upon the conclusion of service. Since Eupolis had died prior τά σ τα σ to 404 B.C., the κα ιςmust represent a practice already in use 47 IG II2, 1371, lines 3–4. 48 IG II2, 1, lines 1, 56. The first of the three decrees preserved on this stone dates to 405/ 404 B.C. before the capitulation of Athens; the other two were passed in 403/402 B.C. Kephisophon is the secretary for the first and third decrees. It seems likely that the first measure was nullified by the Thirty and ratified again under the restored democracy along with the third decree when Kephisophon was secretary. The second proposal was promulgated by Kephisophon (lines 42, 50– 51). The stone wasinscribed only after all three measures, hadbeen enacted.

49 IG II2, 1388. line 3.

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and not an innovation of the Thirty.50 Because the κα τά σ τα σ ιςwas a loan rather than an outright grant, its recovery by the State wasnot

contrary to the property regulations of the reconciliation treaty. The significance of this act can only be the disbanding of the cavalry.51 For the sake of its stability, it wasimportant for the new democratic government to dissolve immediately any organized body which might oppose it. Secondly, such ameasure would beameans of recording which cavalrymen had remained in Athens and which had emigrated to Eleusis. Since the disbanding of the cavalry did not infringe upon the civic rights of the ἱπ π , it cannot be characterized as a contravention of ε ῖς the amnesty.52 In 400/399 B.C. Thibron, the Spartan harmost, asked Athens to supply three hundred cavalrymen, offering to provide their pay (X. III. 1.4). The Athenians responded by sending himmenwhohadserved in the cavalry under the Thirty in the belief that the City would profit if they stayed away or perished. The rationale for this action, as transmitted by Xenophon, is purely political and is intended to portray the restored democracy in a bad light. Might not the Athenians have other reasons for complying with the Lacedaemonian request? After all, Athens had become a Spartan ally at the conclusion of the Peloponnesian War; and its relations with the Lacedaemonians since the restoration of the democracy had been uneasy. The fall of Eleusis had caused Sparta to doubt Athenian intentions; andjust about this time the Athenians, aware of their vulnerability, had repaid the oligarchic war debt upon the demand of the Lacedaemonians. Thus, the City was obligated to consent to Thibron’s request for cavalry because of the peace treaty with Sparta andthe consequences which a refusal might trigger. Sending this expeditionary force hadadvantages for both sides. For Athens it was an easy way of placating the Lacedaemonians, and it rid the City of three hundred potential troublemakers. Nor did the Athenians even have to bear the expense of keeping this contingent since Sparta, perhaps in recognition of Athens’ financial plight, volunteered to furnish its pay. For its part, Sparta obtained the troops which it needed and kept a significant portion of the Athenian cavalry tied up abroad so as to insure the City’s good behavior while the Lacedaemonians were preoccupied with the Persians in Asia Minor and with

50 Cloché, LaRest 369. A. Martin, Les cavaliers athéniens, (Paris 1887) 337. W. K. Pritchett, The Greek State at War, I–II, (Berkeley 1974) 3 n. 3. 51 Cloché, LaRest 370. Martin, LesCav 342–343. 52 Cloché, LaRest 370. Martin, LesCav 339–342. For a discussion of opposing opinion, see: Cloché, LaRest 368–369.

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Elis. Many critics53 take a dim view of this action andeven consider it to be a violation of the amnesty; however, there is nothing in the reconciliation agreement or the amnesty provision in particular which π ε ῖςwhohad forbids dispatching cavalry abroad. To single out those ἱπ served during the oligarchy is a violation of the spirit of the amnesty since their past is the determining factor in being selected for this mission. Among the papyri discovered at Hibeh are fragments of a Lysianic ρ ὴπ α ρα φ α μ ν ω νhas been ό α speech entitled Κ τ ὰΘ εο ζ ο τἰδου .54 A γ brought against the defendant.55 One of the acts imputed to Theozotides is reducing the wartime pay of the cavalry from one drachma to four obols per day while increasing the salary of the mounted archers from two to eight obols (lines 72–79).56 The date of this measure cannot be discerned, but it may be placed with confidence in the first few years following the restoration of the democracy. The decrease in pay of the cavalry could be viewed asa response to a depleted Athenian treasury, especially if it is considered in connection with Theozotides’proposal to exclude bastards andadoptees from benefits awarded by the state to orphans (lines 6–44),57 except for the fact that the ξ π ο ό salary of the ἱπ τ το α ιwasquadrupled. Since the mounted archers, like the τοξ ό τ α ι, were recruited from the lower classes,58 it is likely that the motivation for this measure was political59 as well as economic. Besides amodest savings for theTreasury,60 this proposal of Theozotides at the same time punished the most zealous supporters of the oligarchy and rewarded those men who had formed the backbone of the democratic resistance. There can be no question of a violation of the amnesty here since the political rights of the cavalry are in no way diminished, but it is an indication of the disfavor into which the ε ῖςhadfallen under the restored democracy. π ἱπ 53 Frohberger-Thalheim, AusRed, I, 144. Grosser, Amnestie 43 n. 81. Martin, LesCav 480. 414) and Luebbert (DeAmnestia 62) assume a more moderate viewCloché (LaRest 413– point,

54 Gernet-Bizos, LysDis, II, frg. VI (= PHib, I, no. 14). The title is attested by Pollux (8.46). 55 Cloché, LaRest 373. B. P. Grenfell and A. S. Hunt, PHib, I, 49. Cf. Gernet-Bizos, LysDis, II, 234–235. 56 Theozotides’ reform was not of long duration since Demosthenes (IV.28) reports that in his time the cavalry received a drachma perday. 57 The stone upon which this measure was inscribed has been found. See: R. Stroud, “Theo, Hesperia 40 (1971) 280–301. zotides andthe Athenian Orphans” ιwasdespised. α τ ό ξ το ο π 58 Lysias XV (6) indicates that service among theἱπ 59 Cloché, LaRest 373. Grenfell-Hunt, PHib, I, 49. 60 The cavalry numbered 1000 menso that the reduction in pay would save 2000 obols per day. The raise in salary of the two hundred mounted archers would mean an additional daily outlay of 1200 obols. Thus, the net savings each daywould amount to eight hundred obols or two-thirds of a talent permonth.

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After the reconciliation the loyalty of the cavalry was suspect because of their ardent support for the oligarchy. As a consequence, certain measures, all perfectly legal and in conformity with the amnesty provision, were taken to disperse them andlessen their influence as a group. Individually, however, they freely exercised their civic rights. Many who had served in the cavalry during the reign of the Thirty acceded to office under the restored democracy (Lys. XVI.8) although accusers attempted to stir up a jury’s wrath against them many years later (Lys. XXVI. 10).

4. The Courts after the Restoration of the Democracy It is maintained that private lawsuits were not heard after the restoration of the democracy until the archonship of Xenainetos, 401/400 B.C.;61 this conclusion is based on two allusions from the orators (Isoc. XXI.7, Lys. XVII.3). When the passages are examined, however, they do not support such a contention. Isocrates states that no civil suits were being heard when affairs in the City were unsettled. The speaker of Lysias XVII reports that his family wasunable to proceed against the sons of Eraton I during the warbecause private cases werenot being adjudicated; but immediately after peace hadbeen restored, when civil actions were once again being judged, his father brought suit against Erasistratos and won a judgment against him in the archonship of Xenainetos. The period of instability to which these two passages refer must be the civil war when the democratic exiles began to defeat the oligarchs. It may not be assumed that civil suits were not heard during the entire reign of the oligarchy since a lawwaspassed after the return of the exiles which nullified court decisions and arbitrations rendered under the Thirty (D. XXIV.56). The Lysianic passage does not report how much time has elapsed between the initiation and adjudication of the suit against Erasistratos. One may infer that it required some time to resolve because of the circumstances surrounding the case. Furthermore, several civil actions may be dated to the period prior to the fall of Eleusis.62 Consequently, there is no evidence which indicates that the courts, civil or criminal, were not operating soon after the democracy hadbeen restored. There may be an additional reason why the suit against Erasistratos took so long to be decided. Tojudge from the extant judicial speeches, the courts tended to deal first with cases arising from the events of 61 MacDowell, RIDA 18 (1971) 267. 62 Isoc. XVIII; XXI. Lys. Against Hippotherses. See: Appendix I.

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404/403 B.C. and then to handle disputes which hadoriginated before the reign of the Thirty. Of the actions belonging to the former category, all took place before the fall of Eleusis with the possible exception of Lysias’ prosecution of Eratosthenes.63 None of the processes which fall into the second classification occurred prior to the archonship of Xenainetos.64 It is understandable why the restored democracy would give priority to actions stemming from the period of the oligarchy. The earlier that these conflicts could be resolved, the better the chances were for the success of the reconciliation treaty andfor a return to domestic peace.

5. The Amnesty

vis-à-vis

the Events of 404/403 B.C.

Little evidence survives which sheds light upon the application of the amnesty in relation to the events of 404/403 B.C. Could the amnesty be invoked at all legal processes arising from this period, or did it protect only individuals accused of crimes against the State? The extant cases may be divided into public and private actions. In the former category one may place the prosecution of Philon of Koile (Isoc. XVIII.22) and the charge against Epichares (And. I.95–100). Of the civil suits stemming from this era, only the actions of Kallimachos (Isoc. XVIII) andNikias (Isoc. XXI) are known. The speaker of Isocrates XVIII cites the example of Philon of Koile (22). An information had been lodged against him for malfeasance on an embassy; and although he could not defend his actions, the mere invocation of the reconciliation agreement secured dismissal of the case. The date of the ἔν ιςcannot be fixed with precision, exδ ε ιξ cept that it preceded the suit of Kallimachos. This Philon is otherwise unknown, and the embassy of which he wasa member cannot be identified. It must, however, date from the reign of the oligarchy;65 or else 63 In addition to the actions cited in the previous note: Isoc. XVIII.22, Lys. XIII; XIII.55– 57. Lysias X.31 is another exception; however, the plaintiff could not bring suit earlier than 399/398 B.C. because hewasa minor. See: Appendix I. 64 Isoc. XVI. Lys. XVII; XVII.3; XVIII. Pl. Euthphr 4 c–e. See: Appendix I. 65 The sources report five embassies during this period. Three maybe eliminated from consideration because they were not officially commissioned by the Athenian government: the deputation of the Thirty from Eleusis to Sparta (X. II.4.28), the democratic envoys to King Pausanias (X. II.4.35), and the private citizens whotravelled to Sparta onbehalf of the men of the City (X. II.4.36–37). The embassy of the Thirty to the Lacedaemonians soon after their elevation to power mayalso be ruled out since Xenophon (II.3.13) indicates that the delegation consisted only of two members of the Thirty, Aristoteles and Aischines. The embassy of the Ten of the City to seek financial assistance from the Lacedaemonians (Arist. 59, cf. X. II.4.28) appears most likely. The two deputations sent to 38.1, Lys. XII.58– 22, cf. negotiate a peace agreement after the Battle of Aigospotamoi (X. II.2.11–14, 16– Lys. XII.68) are also possible.

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the example would lose its relevance to the speaker’s situation. The case of Philon is the only surviving example of the amnesty at work in a process at which the defendant was charged with having committed a crime against the State during the oligarchy. Epichares, one of the prosecutors of Andocides, was a member of the Council during the reign of the Thirty. This, Andocides alleges, is a violation of the decree of Demophantos passed in 410/409 B.C. which punished individuals guilty of conspiring against the democracy with summary execution and confiscation of their property (And. I.95–100). This Epichares cannot be identified with the person of the same name whom Lysias (XII.55) numbers among the Ten of the City because Andocides would have been certain to mention the more important office in preference to the less significant seat in the Council. Epichares is said to recall his own misconduct (95). What does Andocides mean by this statement? MacDowell66 suggests two alternatives: either Epichares has boasted of his exploits under the Thirty, or hehas contested the pertinence of the amnesty to Andocides’ situation, the very thing upon which he relied for his own immunity. MacDowell selects the latter possibility, explaining that of Andocides’ adversaries, Epichares wasprobably the one who handled the question of the relevancy of the amnesty and the decree of Teisamenos to the legal position of Andocides. The assertion that Epichares would be liable to the penalties imposed by the decree of Demophantos, if it were not for the revision of the laws (99), deserves close scrutiny. Does holding a seat in the Council during the oligarchy place Epichares in violation of the decree of Demophantos? The decree defines who is to be subject to its penalties: individuals who subvert the democracy or hold an office after the overthrow of the democracy (96, 97) and persons who attempt to set themselves up as tyrants or assist in instituting a tyranny (97). The conduct of Epichares, as presented by Andocides, scarcely justifies the conclusion that he had conspired to overturn the democracy. Epichares did nothing more than belong to the Council under the oligarchy and is even described as a slave of the Thirty (99) which indicates that his role in the establishment of the oligarchy had been χ ν ςwith an ἄ ω . ρ ή ο υ λ ευ τ negligible. Nor is it correct to equate a β Therefore, Epichares does not appear to be in contravention of the decree of Demophantos. If one assumes, nonetheless, that the behavior of Epichares were contrary to this measure, could he still be punished in 399 B.C.? Andocides claims that Epichares has impunity since it is necessary to use the laws passed since the archonship ofEukleides. The 66 Andocides 134.

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decree of Demophantos, however, appears to have remained in force in the fourth century since both Demosthenes (XX. 159) andLycurgus (I.124–127)67 refer to it. Furthermore, had this measure been an-

nulled, it is unlikely that it would still have been standing before the β ο υ λ ευ ρ ή ιο τ νas Andocides himself attests (95, cf. Lycurg. I.125– 126).68 Consequently, the immunity of Epichares cannot depend upon the revised law code.69 Hisprotection, if any were needed, must stem from the amnesty. ηβλάβης70 for ten thousand drachίκ Kallimachos has brought a δ ή . ρα φ γ ρα α mas to which the defendant responded by interposing a π Isocrates composed the speech for the accused (XVIII) who speaks ρ α α first since the order of speakers is reversed at this process. If the π ρ γ ήwere upheld, the suit of Kallimachos would be quashed; if it α φ were disallowed, the trial would continue. If either side failed to collect one-fifth of the jurors’ votes at this process, a fine of onesixth of the amount at stake would be assessed. The defendant, although unidentified, appears to have been a prominent Athenian. He wasone of the few trierarchs who had saved his ship at Aigospotamoi (59) and continued to fight the enemy with his brother, paying the crew out of his own funds (60). After Lysander had imposed the death penalty upon anyone caught importing grain into Athens, the speaker and his brother intercepted grain destined for the Lacedaemonians and brought it into the Piraeus. In return they were honored with crowns and were proclaimed as authors of great benefits before the statues of the Eponymous Heroes (61). Kallimachos, the plaintiff, is unknown, except for the comments of the speaker. According to the defense, Kallimachos shirked military service during the Dekeleian 48). Once the Thirty Warand kept property hidden from taxation (47– had assumed power, he returned to Athens andwasdesirous of participating in the oligarchy (48). He remained a member of the Three Thousand until the democrats were threatening the walls of the City 67 Lycurgus mistakenly dates this decree to the period following the restoration of the democracy.

68 M. Ostwald (“ The Athenian Legislation against Tyranny andSubversion” , TAPA 86 [1955] 117–119) believes that the decree of Demophantos was superseded soon after the resto8). Like the decree against ration of the democracy by the lawquoted by Hyperides (IV.7– tyranny of 337/336 B.C. found by the Agora Excavations (B. D. Meritt, G reek Inscripas supplemental tions” , Hesperia 21 [1952] 355–359, no. 5), this law is best interpreted “ inview of the testimony of Demosthenes andLycurgus. 69 It is curious that Andocides bases the immunity of hisopponents upon the decree of Teisamenos rather than the amnesty. The crimes of which each is accused remained punishable offenses under the revised law code. Perhaps Andocides, in recognition of the tenuousness of his claim to receive amnesty, has attempted to reinforce his main argument for the invalidity of the decree of Isotimides in 399 B.C. by citing the example of his accusers. 70 Blass, AttBer, II2, 213. Dorjahn, Forgiveness 28.

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and then fled to the Piraeus (49). When King Pausanias intervened in the civil war, Kallimachos sought refuge among the Boeotians (49). The date of this lawsuit cannot be determined with certainty. A terminus ante quem is provided by an allusion to the peaceful relations between Athens andSparta (29); thus, the speech must have been delivered before the outbreak of the Corinthian War. The period in which this process took place may be defined more narrowly. The speaker alludes to the successful operation of the reconciliation treaty (25, 46, 68); and it is thought that he would not make such statements, had the fall of Eleusis been a fait accompli. A date in 402/401 B.C. or early in the following year71 appears most likely since one must allow some time to elapse after the restoration of the democracy in which the incidents leading upto this lawsuit occurred. The events preceding the present case are complex and all the more confusing because the speaker elects not to give a careful exposition of the details. After the Ten of the City had succeeded the Thirty, Patrokles, the king archon, accompanied by the defendant encountered his personal enemy, Kallimachos, on the street (5). Patrokles apprehended Kallimachos, claiming that he was in possession of some of Pamphilos’ money, now among the men of the Piraeus, which actually belonged to the government (5). After a brawl hadfollowed Kallimachos’ denial, Rhinon, one of the Ten of the City, arrived on the scene to whom Patrokles laid information about the money (6). Rhinon referred the matter to his colleagues who in turn handed it over to the Council for adjudication (6). The money was declared to be public by the Council (6). Once the exiles had returned, Kallimachos initiated a suit against Patrokles andreceived a settlement of ten minas from him (7). Action was then taken by the plaintiff against a certain Lysimachos whogave hima payment of two hundred drachmas (7). Finally, the speaker wassued as an accomplice, but subsequently as the prime mover of all that had happened (7). Some of Kallimachos’ friends approached the defendant and advised him to come to terms (9–10). The dispute was submitted to Nikomachos of Bate for arbitration (10). According to the terms of the settlement, Kallimachos received two hundred drachmas (10), an arrangement to which he adhered for a time (11). Later, in association with a certain Xenotimos, Kallimachos ρ ία ρτυ μ α brought suit against the defendant who countered with a δια (11).72 The plaintiff dropped his suit rather than risk paying the 71 G. Mathieu and E. Brémond, Isocrate: discours, I, (Paris 1928) 16. Kühn (WS 80 [1967] 49–51)dates the process before the fall of Eleusis, but believes that the speech wasrevised and published afterwards. Blass (AttBer, II2, 214), Cloché (LaRest 357–358), and Mac269) place the speech after the fall of Eleusis. Dowell (RIDA 18 [1971] 268– 72 For a description of this process, see: Harrison, LOA, II, 124–131.

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ελ β ία ω ἐπ , if he should not garner one-fifth of the dicasts’votes (12). Kallimachos revived his suit in the belief that only his court deposit was at stake (12). It is the admissibility of this action which the speaker ρα φ ή . γ ρα α is contesting with the π The defendant bases his case on three points (4): his opponent’s accusations of wrong-doing are lies, the arbitration had settled their dispute, and the lawsuit of Kallimachos violates the amnesty. The circumstances surrounding the arrest of Kallimachos and confiscation of his money arouse suspicion. How was it ascertained beforehand that the plaintiff was carrying money? The timely arrival of Rhinon and the summary judgment of the Council appear to be more than happenstance. Furthermore, the official reason for the seizure, possession of money belonging to Pamphilos which had been declared to be public, is not discussed further; but later the money is conceded to have been the property of Kallimachos (19, 35). One therefore infers that it wasmerely a pretext upon which to confiscate Kallimachos’ money and that this incident wascarefully planned in advance. The defendant ascribes sole responsibility for the deed to Patrokles and alleges that he acted out of personal animosity since it was easily proven that Patrokles was the one who actually informed against Kallimachos.73 The speaker’s protestations of innocence are not entirely satisfactory. The reference to Lysimachos’74 settlement with the plaintiff indicates that Patrokles wasnot acting alone; and the defendant’s willingness to come to terms with Kallimachos is difficult to explain, if he were totally guiltless. Howdoes one account for the escalation in Kallimachos’demand for compensation and the accusation that the speaker is the author of his misfortunes, not an accomplice as he had earlier maintained? Kühn75 theorizes that Kallimachos at first held Patrokles responsible for what happened, but discovered in the course of his negotiations with Patrokles and Lysimachos the true nature of the defendant’s involvement. Although it is impossible to reconstruct the exact role of the speaker in this affair from the sketchy details, it may be conjectured that he, perhaps in some official capacity,76 73 The defendant summons witnesses to verify that Patrokles denounced Kallimachos (8). It is notable, however, that neither Patrokles nor Lysimachos are called to testify; perhaps they would reveal the exact role which the defendant hadplayed in this incident. 74 It is unknown what part Lysimachos played in the apprehension of Kallimachos. Perhaps he

is to be identified with the hipparch mentioned by Xenophon (II.4.8, 26). 75 WS80 (1967) 56. 76 One suspects that the speaker had held a position in the oligarchic government. While pro18), hedoesnotmakethecustomclaiming hisinnocence during thereign of the Thirty (17– ary claim of not having been a magistrate or a Councilman. Furthermore, Kallimachos will accuse those who were involved in the revolution in order to excite thejury’s wrath (36). Perhaps his strategy is to associate the speaker, a minor official in the government, with the more notorious oligarchs.

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masterminded the plot against Kallimachos in order to help fill the empty treasury. According to the defendant, Kallimachos will deny that an arbitration had ever taken place (13–15). The argument of the plaintiff, however, appears to be misrepresented since it would be absurd for him to assert that the matter had not been submitted to arbitration when the speaker has produced witnesses of this agreement and its content not only at the hearing of the first suit (11), but also at this process (10). It is more plausible that Kallimachos is contending that the arbitration is invalid because it had been conducted under false pretenses. He would never have agreed to have Nikomachos serve as umpire, had he known that the arbitrator wasa friend of the defendant (13), though the speaker states that the plaintiff was aware of the fact (14). Nor would Kallimachos have consented to accept only two hundred drachmas in compensation, if he had been apprised at the time of the arbitration of the degree of the speaker’s participation in the confiscation of the money. It is curious that the defendant does not stress the inadmissibility of the present suit because of the arbitration agreement since this argument was instrumental in persuading Kallimachos to drop the first suit. The omission suggests that there may have been substance to the plaintiff’s charge about the irregularity of the arbi-

tration.

The speaker devotes most of his energies to a discussion of the 47). He states that even if he haddone what Kallimachos amnesty (19– alleges, he is immune because of the reconciliation agreement (19). ε ςἐνδ ί ο ὺ Since the amnesty expressly forbids the prosecution of τ ς , he too α τ ν α ξ ρά ν α ςἤτ ν ή π ῶ τ α ν ν ω τ ύ ἄ ιο λ το ν ςἢφ λ ῶ ιτ ω ντ α τ ν α ξ must be protected because he is innocent of any wrong-doing (20). At this point the defendant abandons his case to the background and transforms his speech into a eulogy of the reconciliation treaty. Inιςagainst Philon δ ειξ voking the amnesty was sufficient to have the ἔν of Koile dismissed. The democratic leaders, Thrasyboulos and Anytos, ςagainst the persons who had deη β α ιβλά refrained from bringing δίκ posed their property during the oligarchy because they respected the oaths andcovenants on equal terms with the rest of the citizens, despite 24). It would be ironic, their pre-eminent position in the City (23– the speaker argues, if the jury adhered to the provisions of thereconciliation agreement in their private affairs, yet violated it in their capacity as dicasts (24). It is equally paradoxical for the jury to expect private contracts to be enforced by the State, but to allow Kallimachos, a private citizen, to break public agreements (24). The defendant explains the importance of σ , in the daily life of all Greeks and ῆ κ α ι θ ν υ 32). warns of the consequences of not remaining faithful to them (27–

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Likewise he adjures the jury to abide by the oaths of amnesty andthe dicastic oath (34). Beneath the speaker’s arguments one detects an undercurrent of admonition. Though he is a defendant in a private suit, this action concerns not only the litigants, but all citizens since the welfare of the City is at stake (35, cf. Lys. XXVI.16). Many persons are interested in the outcome of this process because they believe that the amnesty is on trial (42). If the verdict is favorable to the speaker, everyone will be able to reside in Athens without fear; an adverse decision will frighten those who had remained in the City and 43). If the arguments of Kallimachos are encourage sycophancy (42– accepted, judicial chaos will result since all members of the Piraeus Party could bring suit under the same pretext (37). If the oaths of amnesty are disregarded now, the success of the reconciliation treaty will be undermined; and domestic tranquillity will yield once again to discord (44, cf. 68). For this reason, the speaker proposes that transgressors of the amnesty should be punished with the ultimate penalty (47). Although he asserts his innocence, the speaker lays claim to the protection of the amnesty. He wishes the jury to believe that he is on trial for his part in the arrest of Kallimachos and the seizure of his money when in fact he is being sued for damages. The amnesty, no doubt, granted him immunity from criminal prosecution. But did it apply to private actions? Was an individual still vulnerable to civil suits arising from conduct for which he had received amnesty? Since restoration of confiscated property was confined to immovables and unsold movable goods, many people may have sought to recover their financial losses during the oligarchy by instituting damage suits. It ςwere would seem that explicit regulations prohibiting δίκ η β α ι βλά lacking in the reconciliation treaty.77 After all, Kallimachos brought suit against Patrokles and the speaker once before. Also indicative of the confusion which existed is the fact that a magistrate accepted the present suit in spite of the arbitration and the dismissal of the first ή ρ α φ γ ρα α action. It may be concluded that the promulgation of the π law was designed to stem the flow of civil actions resulting from the events of 404/403 B.C. By giving procedural advantage to the defendant and imposing the ἐπ β ελ ω ία , it discouraged the initiation of nuisance suits although it did not legally bar them. Thus, the π α ρ α ρ γ α ήrepresents an attempt to broaden the scope of the amnesty so φ that it might apply to civil actions. One infers that before they had ή , defendants preferred to settle out of ρα φ γ ρα recourse to the π α 77 Dorjahn (Forgiveness 28, 33) states without by the reconciliation treaty.

argument that damage suits were outlawed

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court, fearing that the jury would be less than impartial.78 Although the outcome of this process is unknown, one is inclined to believe that the speaker wasvictorious because of his prominence in the City and the arbitration agreement negotiated previously with Kallimachos.79 Most persuasive is his description of the judicial and political ramifications if the jury finds that the amnesty does not pertain to

private suits. Isocrates XXI was composed on behalf of a certain Nikias for delivery by his advocate. When the Thirty had assumed power, Nikias, fearful of what washappening in the City, mortgaged his house, sent his slaves out of Attica, transported his furniture to the house of the speaker, and deposited three talents of silver with his cousin Euthynos for safekeeping (2). After he had made these arrangements, he went to the country to live (2). A short time later, Nikias decided to sail away and asked Euthynos to surrender the three talents (3). Euthynos, however, returned only two, denying that he had been entrusted with the third. Distrusting the oligarchic government, Nikias did not take immediate action, but voiced his complaints to his friends (3). Nikias’ case is complicated by the fact that no one witnessed the deposit (4, 7);80 therefore, the speaker must rely entirely upon arguments drawn 21). The type of lawfrom probability for proof of Nikias’veracity (4– ςheld before a jury of 401 citiη ή κ ρα κ α θ τα ηπ α ίκ suit is probably a δ zens (Arist. 53.3).81 Although the authenticity of this speech hasbeen doubted on stylistic grounds, it is generally agreed that it is a genuine, albeit somewhat mutilated, work of Isocrates.82 The speech contains no chronological information by which one may date this process; however, critics83 place it soon after the restoration of the democracy in 403/402 B.C. or the year following. Theimportance of this lawsuit is that the dispute which hadoccasioned it occurred during the reign of the Thirty. Howdoes the amnesty affect this suit? Does it constitute a violation of the amnesty? Scholars prefer not to address this aspect of the case.84 Had the suit of Nikias been contrary to the amnesty, one would have expected Euthynos to resort 78 It is implied that although Patrokles wassued, he settled out of court (7), just as the speaker had done originally. One presumes that Lysimachos came to terms with Kallimachos privately since there is nomention of a lawsuit. 79 Cloché, LaRest 365. ς ρ ο ρτυ . ά μ ο ν ἀ υ ςΕὐθύν ὸ ρ 80 This fact is also attested by the title Π 81 Blass, AttBer, II2, 220. Mathieu-Brémond, IsocDis, I, 3. 82 For a discussion of the genuineness andincompleteness of this speech, see: Blass, AttBer, II2, 220–222, Mathieu-Brémond, IsocDis, I, 4–5. 83 Blass, AttBer, II2, 220. Mathieu-Brémond, IsocDis, I, 3. 84 Dorjahn (Forgiveness) does not discuss this speech at all. Cloché (LaRest 355–356 n. 2) mentions it only in passing in connection with the restitution of property. Most commentators on Isocrates ignore the question altogether.

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;to but there is no evidence that he did so.85 Of course, ή φ a παραγρα it is possible that his action took place immediately after the return of ήhad been instituted by Archinos. ρ α φ the exiles before the π γ ρα α ήin this instance cannot be ρ α φ γ ρα α Consequently, the absence of π cited as evidence that Nikias did not violate the amnesty. Far more suggestive, however, is the fact that the speech does not contain one reference to the reconciliation agreement. If Euthynos intended to argue that he was immune from prosecution because of the amnesty, the speaker, no doubt, would have anticipated it and would have refuted it as he does the other arguments of Euthynos (16, 19). The obvious conclusion is that the amnesty was irrelevant to this action. Nor are the property regulations of the reconciliation treaty pertinent to this case since they deal exclusively with the disposition of confiscated goods. To account for the inapplicability of the amnesty in this matter, one may advance the following hypothesis. The quarrel between Nikias and Euthynos was of a purely private nature; unlike the suit of Kallimachos in which the conduct of the oligarchic government had been the source of the dispute, the failure to return the deposit in full was unrelated to any official act of the oligarchy. Therefore, one assumes that the amnesty could not be invoked in civil suits arising from the events 404/403 B.C. that had occurred independently of the oligarchic

government. As the cases of Philon of Koile and Epichares demonstrate, the amnesty granted immunity from prosecution for crimes committed against the State during the oligarchy. In the realm of private litigation, however, the situation was different. Civil suits originating from the events of 404/403 B.C. were not expressly forbidden by the amnesty, but it must not be thought that all private lawsuits were actionable. For instance, suits seeking restitution of property confiscated by the oligarchy whose return the reconciliation agreement did not sanction would not be admissible.86 Some people, like Kallimachos, unable ήis not completely outside the realm of possibility. Lysias composed a speech φ α ρ ραγ α 85 A π ς(Gernet-Bizos, LysDis, η ή κ θ τα ρα α κ α ρπ ὲ π ὑ ν ικ ία ςΝ on behalf of the defense entitled Π ὸ ρ II, frg. XXXV). If Nikias were truly the plaintiff, one would expect the title of the IsocraςΕὐθύν ὸ ρ ο υ of the manuscripts. The speaker ν rather than Π υ ο ν ὰΕὐθύ τ α tean speech to be Κ of Isocrates XXI (9) affirms that Nikias has initiated the lawsuit. The disparity in the titles of these twospeeches canbe reconciled, if one conjectures that the speech of Isocrates ήentered by Euthynos andthat after the demurrer hadbeen ρ α φ γ ρα α was in response to a π rejected, the Lysianic speech was delivered at the hearing of Nikias’suit. Given the carelessness of ancient commentators indistinguishing between κ ς , thisreconstruction ό ρ ά andπ τ α cannot be set forth with a great degree of confidence. In any event, it does not affect the interpretation of the speech suggested here. 86 Presumably, a returning exile could sue for restitution of a confiscated immovable which its current owner refused to surrender in spite of the reconciliation treaty. Dorjahn (Forgiveness 26, 33) and Kühn (WS 80 [1967] 60– 62) assert without qualification that restitution suits did not violate the reconciliation agreement; however, they do not discuss this subject in connection with the regulations governing the disposition of confiscated property mentioned by Lysias.

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ς η β α ιβλά to regain possession of their confiscated goods, initiated δίκ against those responsible for the seizure in order to receive compensation for their losses. Since the amnesty, strictly speaking, did not ἠin order ρ α φ γ ρα apply to private disputes, Archinos introduced the π α to give procedural advantage to defendants who hadcivil suits brought against them for conduct during the oligarchy which hadbeen publicly forgiven. Unlike the case of Kallimachos, Nikias’quarrel with Euthynos did not revolve upon any action of the oligarchic government so that the amnesty was totally irrelevant to this process. Since court decisions and arbitrations made during the reign of the Thirty were invalidated after the return of the exiles (D. XXIV.56), it may be inferred that private lawsuits as well as arbitration agreements concluded during this period could be reopened under the restored democracy. Of course, individuals convicted of public crimes during the oligarchy could not be retried because they would have been protected by the amnesty.

6. The Amnesty

vis-à-vis Events prior

to the Oligarchy

In this section the relationship of the amnesty to the events before the installation of the tyrants will be explored. Once the democracy had been restored, did the amnesty confer immunity upon individuals accused of misconduct in the period preceding the oligarchy? Did it prevent the execution of court decisions made before 404/403 B.C.? Was an individual prohibited from pursuing a civil case arising from pre-oligarchy times? The extant cases which fit this description are of such a diverse nature that they cannot be easily categorized. They may, however, be roughly classified into private and public actions. Among the former are two speeches composed by Lysias (XVII; XVIII) in response to ἀ ρα π γ ο φ α ί87 Although the ἀπ ρα φ γ α ί have been entered ο after the restoration of the democracy, they are based upon events prior to the reign of the Thirty. Similarly, the suit against Alkibiades the younger (Isoc. XVI) is predicated upon an incident which occurred twelve years before the tyrants had assumed power. In the second group the prosecution of Nikomachos (Lys. XXX), the trial of Andocides (And. I, Lys. VI), and the legal status of Kephisios (And. I.92– 93) may be placed. The private cases will be considered first in their likely chronological order followed by a discussion of the public actions. 87 Although confiscation was instituted by the State against a person who had committed some offense against it, execution of such an order wasrelinquished to the initiative of a private citizen.

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εύ ςδημ ῆ σ ς ρ ε ὶτ ω The eighteenth speech of Lysias is entitled Π ε ς , yet Galen (ed. Kühn, XVIII, 2, ο γ ῦἐπ ο φ ίλ ο υἀδελ ίο ικ ν ῦΝ >το