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Oaths (ὅρκοι), Covenants (συνθῆκαι) and Laws (νόμοι) in the Athenian Reconciliation Agreement of 403 BC*

Published online by Cambridge University Press:  25 November 2015

Christopher Joyce
Christopher Joyce*
Affiliation:
The Haberdashers’ Aske’s Boys’ School Elstree, [email protected]
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Abstract

There has been much discussion in recent years as to whether the Athenian amnesty of 403 BC can be understood in terms of political forgiveness. A number of scholars have denied that it can. Nevertheless, if the oaths, covenants, and laws are properly analysed, it will become clear that, though ancillary to the earliest clauses of the agreement, the promise μὴ μνησικακεῖν was a blanket measure forbidding prosecutions for crimes under the Thirty and before in the courts after 403. The covenants (συνθῆκαι) chiefly laid down conditions for future relations between Athens and Eleusis. The promise not to dredge up the past was just one concern, and should not be confused with the agreement in its entirety. This article re-examines the agreement as a whole in light of recent discussion of the meaning of amnesty in the ancient world, and argues that the oath μὴ μνησικακεῖν, sworn subsequently, affirmed just one of the covenants, not, as is sometimes held, every covenant. Other clauses may have been re-affirmed by separate oaths. The legislation (νόμοι) which followed was designed to give clearer legal definition to μὴ μνησικακεῖν, but was distinct and separate from the covenants of amnesty.

Type
Research Article
Information
Antichthon , Volume 49 , November 2015 , pp. 24 - 49
Copyright
© The Australasian Society for Classical Studies 2015 

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Footnotes

*

I would like to thank Edward Harris for his astute comments and suggestions on the final version of this paper. Certain comments which he has made on some of the questions raised by this topic have been included as a separate Appendix at the end of this article (see pp. 46-9). I would like also to acknowledge the useful comments of the anonymous referees for Antichthon.

References

1 Harter-Uibopuu, K. and Mitthof, F. (eds), Vergeben und Vergessen? Amnestie in der Antike, Wiener Kolloquien zur Antiken Rechtsgeschichte, 2013Google Scholar.

2 See e.g. the definition by Thür, G. in ‘Amnestie’, DNP 1 (1996) 602-603Google Scholar of amnesty as: ‘Gesetzmässig festgesetzter Verzicht auf Anklage, Wiederaufnahme von Verfahren, Urteils-vollstreckung und Strafvollzug als Mittel, die streitenden Parteien nach internen oder externen Krisen zu versöhnen.’ Implicit in this definition is the claim that amnesty measures are there to alleviate crisis and to bring about through legislation reconciliation in the wake of a conflict. In the case of Athens, with which this article specifically deals, I will argue that this definition fits the facts which we can glean from the ancient sources, but I leave open the question as to whether other amnesty arrangements in antiquity match the definition.

3 Dreher, M., ‘Die Herausbildung eines politischen Instruments: Die Amnestie bis zum Ende der klassischen Zeit’, in Harter-Uibopuu and Mitthof (n. 1) 71-94Google Scholar.

4 Rubinstein, L., ‘Forgive and Forget? Amnesty in the Hellenistic Period’, in Harter-Uibopuu and Mitthof (n. 1) 127-161Google Scholar.

5 La’da, C.A., ‘Amnesty in Hellenistic Egypt: A Survey of the Sources’, in Harter-Uibopuu and Mitthof (n. 1) 163-209Google Scholar.

6 Cic. Phil. 1.1.1. For modern discussions as to whether Cicero truly understood the nature of the Athenian amnesty, see Mommsen, Th., Römisches Strafrecht (Leipzig 1899) 458Google Scholar; Sordi, M., ‘La fortuna dell’amnestia del 403/2 a.C.’, in Sordi (ed.), Amnistia, perdono e vendetta nel mondo antico (Milan 1997)Google Scholar; Carawan, E., ‘The Athenian Amnesty and Scrutiny of the Laws’, JHS 122 (2002) 1-23CrossRefGoogle Scholar, esp. 5-7; Scheibelreiter, P., ‘“Nicht Erinnern” und “Übles vergessen”: Zum Amnestiebegriff im klassischen Griechenland’, in O. Brupbacher (ed.), Erinnern und Vergessen. Tagungsband des europäischen Forums junger Rechtshistorikerinnen und Rechtshistoriker (Münich 2007) 365-384Google Scholar.

7 Carawan, E., The Athenian Amnesty and Reconstructing the Law (Oxford 2013)CrossRefGoogle Scholar. For earlier articles expressing comparable views, see n. 6 above and n. 8 below.

8 Joyce, C.J., ‘The Athenian Amnesty and Scrutiny of 403’, CQ 58 (2008) 507-518CrossRefGoogle Scholar; ‘Mὴ μνησικακεῖν and “All the Laws” (Andocides On the Mysteries 81-2): A Reply to E. Carawan’, Antichthon 48 (2014) 37-54. The first of these was written as a reply to Carawan’s 2002 article (n. 6), the second a reply to his retort entitled ‘The Meaning of MÊ MNÊSIKAKEIN’, CQ 62 (2012) 567-81.

9 The oaths together formalise the text of a single written treaty, and not two separate ones: thus, Heuss, A., Abschluss und Beurkundung des griechischen und römischen Staatsvertrages (Darmstadt 1967) 7-8Google Scholar; Scheibelreiter, P. ‘Atheniensium vetus exemplum: Zum Paradigma einer antiken Amnestie’, in Harter-Uibopuu and Mitthof (n. 1) 95-126Google Scholar at 101.

10 Lys. 13.88, 25.23, 28.34; [Lys] 6.39; Isocr. 18.29.

11 Thus Shear, J.L., Polis and Revolution: Responding to Oligarchy in Classical Athens (Cambridge 2011) 198-199Google Scholar.

12 I do not wish to revive here the now discredited view that a separate agreement was concluded after the re-integration of Eleusis in 401, to which Xen. Hell. 2.4.43 might possibly allude. What I do wish to suggest, however, is that there was more to the amnesty than just the covenants, or συνθῆκαι. The various laws which ensued made provisions not incorporated in the original terms. Against the view of two separate amnesties, see Stahl, J.M., ‘Über athenische Amnestiebeschlüsse’, RM 46 (1891) 251-286Google Scholar; Loening, T.C., The Reconciliation Agreement of 403/2 BC in Athens, Hermes Einzelschr. 53 (Stuttgart 1987) 26-27Google Scholar.

13 Xen. Hell. 2.3.11-12.

14 Thus, Lehmann, G.A., ‘Überlegungen zu den oligarchischen Machtergreifungen im Athen des 4. Jahrhunderts v. Chr.’, in W. Eder (ed.), Die athenische Demokratie im vierten Jahrhundert vor Christus. Vollendung oder Verfall einer Verfassungsform? (Stuttgart 1995) 139-150Google Scholar, esp. 145; Nippel, W., ‘Bürgerkrieg und Amnestie: Athen 411-403’, in G. Smith and A. Margalit (eds), Amnestie und Politik der Erinnerung in der Demokratie (Frankfurt am Main 1997) 103-119Google Scholar, esp. 107.

15 Isocr. 18.16, 21.2; Lys. 25.16.

16 Xen. Hell. 2.3.20.

17 [Arist.] Ath. Pol. 41.2; Diod. 14.33.5-6; Lys. 12.58-60.

18 Xen. Hell. 2.4.29-30.

19 Xen. Hell. 2.4.38

20 Xen. Hell. 2.4.43

21 Compare Xenophon’s wording at Hell. 2.4.38 with that of the oath cited by Andocides at Myst. 90.

22 It always used to be thought that the homicide rule spelled out in §5 was an exemption to μὴ μνησικακεῖν, but a careful reading of the text of Ath. Pol. 39 shows that it cannot point to the past; for a better reading, see Harris’s appendix to this article and, in a similar vein but with rather different implications, Gray, B., ‘Justice or Harmony? Reconciliation after Stasis in Dikaia and the Fourth-Century BC Polis’, REA 115 (2013) 369-401Google Scholar, esp. 385-7, 398-401.

23 In my two earlier articles (n. 8) I examined three inscriptions which show decisively that μὴ μνησικακεῖν did not in fact seal earlier agreements in any of the parallel examples which Carawan adduced in his 2002 paper (n. 6). Comparative studies of inscribed texts of other amnesty agreements confirm that μὴ μνησικακεῖν was, in the best documented cases, separate and distinct from the other covenants of reconciliation which brought together internal or external parties.

24 Cloché, P., La restauration démocratique à Athènes en 403 avant J.-C. (Paris 1915)Google Scholar.

25 Dorjahn, A., Political Forgiveness in Old Athens: The Amnesty of 403 BC (Evanston IL 1946)Google Scholar.

26 Loening (n. 12).

27 Todd, S.C., ‘Lysias against Nikomachos: The Fate of an Expert in Athenian Law’, in L. Foxhall and A.D.E. Lewis (eds), Greek Law in its Political Setting: Justification not Justice (New York and Oxford 1995) 101-132Google Scholar, esp. 120.

28 Loraux, N., La cité divisée: L’oubli dans la memoire d’Athènes (Paris 1997)Google Scholar. Loraux’s monograph has been translated into English by Pache, C. and Fort, J., The Divided City: On Memory and Forgetting in Ancient Athens (Cambridge MA 2002)Google Scholar.

29 Wolpert, A., Remembering Defeat: Civil War and Civic Memory in Ancient Athens, Baltimore 2002Google Scholar; Shear (n. 11) esp. 295-301. In a similar vein, see also Thomas, R., Oral Tradition and Written Record in Classical Athens (Cambridge 1989) 132-138CrossRefGoogle Scholar; Dössel, A., Die Beilegung innerstaatlicher Konflikte in den griechischen Poleis vom 5.-3. Jahrhundert v. Chr. (Frankfurt 2003) 110-112Google Scholar, 141-2; Forsdyke, S., Exile, Ostracism and Democracy: The Politics of Expulsion in Ancient Greece (Princeton NJ 2005) 262-263Google Scholar.

30 Carawan (n. 7). For his understanding of the relationship between the oaths and covenants, see esp. 69 with n. 4 and 184-9.

31 Carawan (n. 7) 68-90, esp. 86-9, where provisions (4) and (5) of the second part of the agreement according to his schema refer to laws cited by Andocides at Myst. 85-8. On p. 86 he does appear to recognise that further nuancing took place after the covenants were concluded and even claims that the rule ‘to apply the laws from the time of Eucleides (403/2)’ did not feature in the original terms. But there is a strong implication that the essential stipulations of the new laws were stated, or at least implied, in the earlier covenants. For example, at p. 82 he writes: ‘. . . the testimony suggests that the new rules were based on the covenants or inspired by them [my italics]. Often we can only conjecture about the connection, whether the legislation adopted wording from particular clauses or followed the wider implications.’ This quotation suggests that the laws which came afterwards re-stated principles spelled out in the terms of the peace. But it is unclear why any of these later laws, the chief purpose of which was to clarify μὴ μνησικακεῖν in legal terms, should have had precedents in the covenants.

32 The comparative case studies, which form the backbone of Carawan’s argument in all three publications listed above, that μὴ μνησικακεῖν in Greek legal terminology closed off contracts of reconciliation between the two sides, do not support any of Carawan’s contentions as regards the amnesty agreement of 403: see especially my 2014 article cited at n. 8.

33 Andocides’ chronology that the oath was sworn after the covenants were drawn up is followed by Ath. Pol. 39.6 and Xen. Hell. 2.4.37-8, both of which attest that μὴ μνησικακεῖν was sworn once the exchanges had taken place. It is noteworthy, however, that neither mention any of the legal principles which Carawan reads back into the covenants.

34 Andoc. Myst. 90; Lys. 12.53; see also IG ii 2 10 (=SEG 30.54) line 8.

35 Cloché (n. 24) 239-44 believed that two separate agreements were reached in 403, but his view has since been discounted by Rhodes, P.J., A Commentary on the Aristotelian Athenaion Politeia, rev. edn (Oxford 1993) 463Google Scholar, and Krentz, P., The Thirty at Athens (Ithaca NY 1982) 102-130Google Scholar.

36 Thus Joyce (n. 8, 2014) 42.

37 For the etymology of διαλλαγαί, see Garlan, Y., ‘Études d’histoire militaire et diplomatique I’, BCH 89 (1965) 332-348CrossRefGoogle Scholar, who connected the term historically to the exchange of hostages. For attestations of συνθῆκαι, see LSJ s.v.

38 This is clearly implied by Andocides (see below). The speech of Isocrates Against Callimachus is aware of a conceptual distinction, as it refers to the law of Archinus on παραγραφή in a separate sense from the συνθῆκαι (Isoc. 18.2).

39 IG ii 2 111=Rhodes and Osborne 39, esp. lines 57-61. For my most recent discussion of this document, see Joyce (n. 8, 2014) 47-8, where I argue that, as in Ath. Pol. 39.6, the phrase μὴ μνησικακεῖν cannot refer back to earlier covenants but must pertain to misdeeds of the Cean rebels, who under the terms are re-integrated into the political community.

40 Carawan, , ‘Amnesty and Accountings for the Thirty’, CQ 56 (2006) 57-76CrossRefGoogle Scholar; contra Shear (n. 29) 191 n. 9.

41 Compare Xen. Hell. 3.4.38 with Ath. Pol. 39.1 and 6. The only additional point Xenophon reports is that the Thirty, the Ten, and the Piraeus Ten are not to return to their homes, but this looks like an interpretation of the covenants mentioned in §§1 and 6.

42 Schol. Aeschin. 1.39=FGrHist 77 F 2; Athen. 577b-c. See A. Dössel, (n. 29) 135-7.

43 Ath. Pol. 39.1.

44 Pace Cloché (n. 24) 251-3, who held that this applied only to Athens.

45 IG ii 2 111=Rhodes and Osborne 39, lines 65-6. See also Xen. Hell. 4.1.35; Dem. 7.41; [Dem.] 59.102.

46 Ath. Pol. 39.2.

47 Hypereides, Athen. col. 14, §29 refers to a law prescribing ἀπαγωγή and ἔνδειξιϛ against any who leave the community during war and later return. We have no reason to think that this law dates from the time of the amnesty; the orator seems to refer to a much later statute passed in the time of Philip of Macedon.

48 Thus Loening (n. 4) 35; contra Carawan (n. 7, 2013) 72.

49 Ath. Pol. 39.3. The implication is refusal to sell was prohibited: thus G.A. Lehmann, ‘Die revolutionäre Machtergreifung der “Dreissig” und die Staatliche Teilung Attikas (404-401/0 v. Chr.)’, in R. Stiehl and G.A. Lehmann (eds), Antike und Universalgeschichte, Festschrift Hans Erich Stier (Münster 1972) 222.

50 Ath. Pol. 39.4.

51 Ath. Pol. 39.5. For the interpretation that registration at Eleusis had to be cancelled, see Rhodes, P.J. (trans.), Aristotle, The Athenian Constitution (London 1984) 83Google Scholar.

52 Carawan (n. 7, 2013) 73.

53 Ath. Pol. 39.2.

54 Kühn, J.-H., ‘Die Amnestie von 403 v. Chr. im Reflex der 18. Isokrates-Rede’, WS NF 1 (1967) 31-72Google Scholar, at 35; Loening (n. 4) 52-3; Todd, S.C., The Shape of Athenian Law (Oxford 1993) 234Google Scholar with n. 4. Contra: Sakurai, M., ‘A New Reading in POxy 13.1606’, ZPE 109 (1995) 177-180Google Scholar; Carawan (n. 7, 2013) 84-5.

55 Andoc. Myst. 1.88; Dem. 24.26. Carawan (n. 7, 2013) 86 takes it for granted that this rule was specified in the earlier covenants, but Andocides ascribes it to a law passed after the covenants and oaths were ratified.

56 Carawan (n. 7, 2013) 88.

57 Among those who have taken the view that this covenant is retrospective, see e.g. R.J. Bonner, ‘Note on Aristotle Constitution of Athens XXXIX.5’, CP 19 (1924) 175-6; P.J. Rhodes, A Commentary on the Aristotelian Athenaion Politeia (Oxford 1981) 69-70; S.J. Todd, A Commentary on Lysias. Speeches 1-11 (Oxford 2007) 639 with n. 55; E. Carawan, (n. 40), esp. 271-2. For Carawan, this has been crucial in developing the case that the amnesty had legal gaps and cannot be understood as a universal measure.

58 For a slightly different formulation, which Harris in the Appendix criticises, see Gray (n. 22) 399. Like Harris, however, Gray understands Ath. Pol. 39.5 to refer to a future, not a past, arrangement.

59 See the arguments of my 2014 article (n. 8).

60 For a full discussion of the problems of the sources and how to decide between them, see Rhodes (n. 59) ad loc.

61 We know that Rhinon was commended for his goodwill and benefactions towards the people and was later elected general under the restored democracy; thus, Ath. Pol. 38.3-4; IG ii 2 1371 line 10.

62 Carawan (n. 7) 88 misunderstands this guarantee; it was a shield against criminal, not civil, proceedings.

63 Thus, Shear (n. 29) 209.

64 It is not completely compatible; the list of exemptions in Andocides does not mention the Ten or the Piraeus Ten.

65 I am not persuaded by Shear’s claim (n. 29) 197 that the wording of the oath gleaned from Andocides cannot be taken as read, or that it did not detail those who were exempt and under what circumstances. The words given form a bleeding chunk of a larger oath, as D.M. MacDowell recognised (Andokides: On the Mysteries, with Introduction, Commentary and Apppendices [Oxford 1962] 130), but this would confirm my argument that μὴ μνησικακεῖν was not the only oath sworn.

66 Joyce (n. 8, 2008) 508; contra Shear (n. 29) 199 n. 34); Carawan (n. 7) 185 n. 25. The argument that there was no separate decree of amnesty was originally made by MacDowell (n. 65) 120 and 128, who argued that the decree to which Myst. 81 refers was the enabling decree for the government of the Twenty which was installed straight after the return from Piraeus, and that Andocides here refers to a resumptive clause, not a separate measure. But MacDowell’s argument is predicated on the claim that the oath of amnesty was brought into effect by the law cited later, barring litigation for crimes predating 403/2. As argued here, that statute was part of a later legislative package which gave further definition to the amnesty, but did not bring it into existence. For Carawan, MacDowell’s interpretation is crucial, as he claims that μὴ μνησικακεῖν cemented the covenants of reconciliation and did not have any separate decree authorising it.

67 Plut. Mor. 814B; Dion. Hal. Lys. 32; schol. Aeschin. 1.39; schol. vet. Ar. Wealth 1146a; schol. Tzet. Ar. Wealth 1146; schol. rec. Ar. Wealth 1146b; Val. Max. 4.1 ext. 4; Vell. Pat. 2.58.4; Nep. Thras. 3.2.

68 See the oaths in decrees of the assembly listed by Canevaro and Harris (n. 75).

69 Thus, Joyce (n. 8, 2014) 44-5.

70 Carawan (n. 7) chap. 6, esp. 125-35. In none of the passages he cites can he show that the phrase αὐτοχειρίᾳ was used against Agoratus, or that this case had any relevance at all to the specifications of Ath. Pol. 39.5. For the meaning of the controversial phrase ἔπ’ αὐτοφώρῳ, see M.H. Hansen, Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimioi and Pheugontes (Odense 1976) 48-53; E.M. Harris, ‘“In the act” or “red-handed”? Apagoge to the Eleven and Furtum Manifestum’, S ymposion (1994) 169-84. It is worth noting that Carawan cites Harris’s paper (n. 25) 126, only to misrepresent it. Hansen claimed that the phrase changed its meaning from the fifth to the fourth century. By contrast, Harris analysed all the passages in which the term is found and showed that the phrase did not change its meaning from one period to the next.

71 On memory as a civic duty, see now A. Chaniotis, ‘‘Normen stärker als Emotionen? Der kulturhistorische Kontext der griechischen Amnestie’, in Harter-Uibopuu and Mitthof (n. 1) 47-70, esp. 50-5, on the trials of Eratosthenes and Agoratus.

72 Carawan (n. 7) makes this claim in all three works cited. For the most recent formulation of his ‘minimalist position’, see 2013, 7-19. For a totally different view of the legal redaction, see now Shear (n. 29) 286-312.

73 Joyce (n. 8, 2014) 48.

74 For slightly different wordings of this rule, compare Andoc. 1. 88 with Dem. 24.56.

75 For the problematic citation of the decree of Demophantus and other quoted documents in the speech On the Mysteries, see Canevaro, M. and Harris, E.M., ‘The Documents in Andocides’ On the Mysteries’, CQ 62 (2012) 98-129CrossRefGoogle Scholar.

76 Thus Joyce (n. 8, 2014) 53.

77 Isocr. 18 (Against Callimachus) esp. 1-4.

78 See Rhodes (n. 35) 468 for various suggestions.

79 Thalheim’s emendation has recently been endorsed by Gray (n. 22) 399-400.

80 Rhodes (n. 35) 468, following Cloché (n. 24) 259-61 and Bonner (n. 57) 175-6. For more recent bibliography see Gray (n. 22) 385 n. 49. Carawan (n. 7) 139-70 accepts this interpretation and claims that because of the rule contained in this clause, Lysias could not have delivered his speech Against Eratosthenes. As this Appendix demonstrates, this view is untenable.

81 Cf. Gray (n. 22) 386.

82 Rhodes (n. 35) 468 believes ‘There would be no special point in stipulating that for homicide trials traditional procedure was to be followed.’ But then why in a previous clause did the agreement use the same phrase (39.2: κατὰ τὰ πάτρια) and state that for the administration of the shrine at Eleusis the Kerykes and the Eumolpidai were to hold their traditional privileges? If the phrase was not pointless in that clause, it should not have been pointless in this clause.

83 On the charges in these two speeches, see Harris, E.M., Democracy and the Rule of Law in Classical Athens: Essays on Law, Society and Politics (Cambridge and New York 2006) 398-400CrossRefGoogle Scholar.

84 For this and what follows about liability in homicide law, see Harris (n. 83) 391-404, apparently unknown to Gray and Carawan.

85 For discussion, see Gagarin, M., Drakon and Early Athenian Homicide Law (New Haven and London 1981) 37-41Google Scholar.

86 Cf. Gray (n. 22) 387: ‘The sentence about the amnesty ( . . . ) seems quite clearly to mark a shift . . .’

87 Compare IG i3 40, lines 71-74; IG ii2 244, lines 90-95; SEG 26:72, lines 4-8.

88 Gray (n. 22) 399-400 realises that this speech creates a serious obstacle to his view.

89 The proposal of Gray (n. 22) 399-400 to defend Thalheim’s emendation (εἴ τίς τινα αὐτοχειρίᾳ ἐκτείσαιτο τρώσας) is vulnerable to several objections, as he himself recognises. One is that Athenian laws sometimes contain a conditional clause followed by a clause indicating a procedure to be followed (see e.g. Dem. 23.26, and Harris, E.M., The Rule of Law in Action in Democratic Athens (New York and Oxford) 139-140Google Scholar, but the conditional clause always contains ἐάν followed by the subjunctive, not the optative. Gray wants to restore εἴ followed by the optative ἐκτείσαιτο, which is unparalleled in Athenian laws. Another is that cases of wounding were tried under a separate procedure, the graphê traumatos, not by the dikê phonou.

90 For the role of the Areopagus as a guardian of the land that stood above political factions, see Dem. 23.66: ‘More recently no tyrant, no oligarchy, no democracy has dared to take trials for homicide away from this court alone. All men think that in this tribunal alone no defendant who has been convicted or accuser who has lost has ever proved that his case was wrongly decided.’ Cf. Zelnick-Abramowitz, ‘Guardian of the Land’, in Gabriel Herman (ed.), Stability and Crisis in the Athenian Democracy (=Historia Einzelschriften 220) 103-26.

91 This point is missed by Bonner (n. 57).