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Marriage Law and Family Organization in Ancient Athens: A Study on the Interrelation of Public and Private Law in the Greek City

Published online by Cambridge University Press:  17 July 2017


In an article published in 1927, Herbert Meyer showed that the Germanic legal system possessed from an early epoch, perhaps from its very beginning, in the form of friedelehe a type of marital union which was characterized by the legal equality of husband and wife, in contrast with the muntehe in which the wife was legally subject to her husband. This important discovery implied that the distinction made in Roman law between marriage with manus and “free marriage” no longer stood alone. In fact the coexistence, in many known legal systems, of several types of marital relation—differing from one another in their effect upon the relationship between the wife, her husband and his family—may now be considered as established. The theory was first proposed by Meyer himself, who called attention to similar phenomena in a number of legal systems, Indo-European as well as non-Indo-European, in addition to the Roman and the Germanic; and it was later extended by Koschaker in his broad investigation into the “Eheformen bei den Indogermanen.”

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1 “Friedelehe und Mutterrecht,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (henceforth: ZRG), Germ. Abt. , XLVII (1927), 198286.Google Scholar

2 Zeitschrift für Ausländisches und Internationales Privatrecht , XI (1937), Sonderheft , 77140b.Google Scholar

3 Meyer, , op. cit. , 248 f.; Koschaker, , op. cit., 122, and 125 n. 3, and p. 128; cf. also Wolff, H. J., Tijdschrift voor Rechtsgeschiedenis, XVI (1938), 170. I do not consider here other types of marital union which also may exclude the husband's power; cf. Koschaker, , op. cit., 109 f., 112, 134 ff. Except for the ἐΠίκληρoς system, none of the phenomena discussed by Koschaker was of relevance for Athens.Google Scholar

4 Koschaker, , op. cit. , 124.Google Scholar

5 As for the background and reason of this legislation, see Wolff, , op. cit. , 174 ff., 182.Google Scholar

6 Op. cit. , 249 n. 6.Google Scholar

7 Op. cit. , 122 n. 1.Google Scholar

8 Beiträge zur Geschichte des griechischen und römischen Familienrechts , vol. I: Die Ehebegründung nach attischem Rechte (Erlangen and Leipzig, 1892), 19, 20 n. 6.Google Scholar

9 Diodor. 12.18: Google Scholar

10 This can be inferred from the provisions for the heiress, VII. 52—VIII. 27, and for the marriage between a free woman and a slave, VII. 1-4 (Kohler, J. and Ziebarth, E., Das Stadtrecht von Gortyn [Göttingen, 1912], 68, 52; Erdmann, W., Die Ehe im alten Griechenland [Münchner Beiträge zur Papyrusforschung und antiken Rechtsgeschichte, XX, Munich, 1934], 79 ff.); also from the marriage property law, see Bücheler, F. and Zitelmann, E., Das Recht von Gortyn (Frankfurt a.M., 1885), 115 ff.; Kohler, and Ziebarth, , op. cit., 70 f., also 56. As for Erdmann's suggestion, op. cit., 123 f., that VII.1 reflects a matriarchal influence, note Koschaker, , op. cit., 133.Google Scholar

11 Examples: Sammlung der griechischen Dialektinschriften II (Göttingen, 1899), nos. 1732, 1842, 2017, 2217. Husband and wife act conjointly: 1717, 1819, 2317, and others. Note also frequent dispositions by women with husband's consent: 1696, 2102, and others. (All from the second and first centuries B.C.).Google Scholar

12 Mitteis, L., Grundzüge der Papyruskunde, Juristischer Teil (Leipzig, 1912), 226 f.Google Scholar

13 Wolff, H. J., Written and Unwritten Marriages in Hellenistic and Postclassical Roman Law (American Philological Association, Philological Monograph IX, Lancaster, Pa., 1939) 26 ff., 69, 81.Google Scholar

14 As for its meaning, see below, p. 51. —Since ἐγγίύη was the term almost exclusively used in the Attic forensic language, I prefer it to ἐγγύησις, which is usually chosen by modern writers.Google Scholar

15 I omit for the moment the marriage between an “heiress” (ἐΠίκληρoς) and her next-of-kin.Google Scholar

16 Bozza, Francesca, “Il matrimonio nel diritto attico,” Annali del Seminario Giuridico della R. Università di Catania , I (1934), 352383.Google Scholar

17 Bozza, , op. cit. , 369 ff.Google Scholar

18 Westrup, C. W., Quelques observations sur les origines du mariage par “usus” et du mariage sans “manus” dans l'ancien droit romain (Paris, 1926), 35 f., also ponders the possibility of free unions in the legal system of pre-classical Athens.—We may dismiss as obsolete the theories advanced by Buermann, H., (Fleckeisen's) Jahrbücher für classische Philologie, Supplement IX (1877-78), 567-597, and Müller, O., ibid., Supplement XXIV (1899), 661-866, especially, 710-732, 796 ff. Buermann's theory of a “legitimate concubinage” based on an ἐγγύη has been generally rejected almost from the beginning: Zimmermann, R., De nothorum Athenis condicione (diss., Berlin, 1886), 10 ff.; Caillemer, E. in Daremberg-Saglio's Dictionnaire des Antiquités I, ii (1887), 1435; II (1892), 394; Hruza, , op. cit., 25 ff.; Gilbert, G., Handbuch der griechischen Staatsalterthümer (2nd ed., Leipzig, 1893), I, 210; Kübler, B., ZRG, Rom. Abt., XV (1894), 395; Beauchet, L., Histoire du droit privé de la République Athénienne (Paris, 1897), I, 90 ff., 491; Müller, , op. cit., 669 ff.; Wyse, W., The Speeches of Isaeus (Cambridge, 1904), 277 f.; Ch. Savage, A., The Athenian Family (diss., Johns Hopkins Univ., 1907), 74 f.; Lipsius, J. H., Das attische Recht und Rechtsverfahren (Leipzig, 1905-15), 478 n. 28; Becker, W. G., Platons Gesetze und das griechische Familienrecht (Münchner Beiträge zur Papyrusforschung und antiken Rechtsgeschichte, XIV; Munich, 1932), 92; Erdmann, , op. cit., 106 ff.; Bozza, , op. cit., 353 n. 5.Google Scholar

19 Owing to her erroneous theory on the ἐγγύη (see below, p. 52), the problem did not occur to Bozza.Google Scholar

20 Not often and not before Aristotle: see Savage, , op. cit. , 83 ff.; Erdmann, , op. cit., 159 f.; also Geurt, N., Het Huwelijk bij de Griekse en Romeinse Moralisten (Amsterdam and Paris, 1928), 23.Google Scholar

20a L. A. Post's article “Woman's Place in Menander's Athens,” recently published in Transactions of the American Philological Association LXXI (1940), 420-59, presents interesting material, but suffers from the circumstance that the author fails to draw a clear line between the social and the legal position of women.Google Scholar

21 See Beseler, G., Studi in onore di Pietro Bonfante (Milan, 1930) II, 56, whose theory is somewhat related to that advanced in this study; Beseler is followed by Bozza, , op. cit., 377 ff. See also Erdmann, , op. cit., 47 f., 267 ff. Demosth. or. 41 evidences that even the husband of an ἐΠίκληρoς who received his wife from her father in the ordinary way of ἐγγύη and ἔκδoòις, and without being adopted by him, became her κύριoς. In that case the κυριϵία of the husband indeed was no obstacle to the right of the next-of-kin to claim the ἐΠίκληρoς, Isae. 10.19. Since the legal relations between a married woman and her original family were not completely severed, as will be shown in this chapter, such a state of facts is understandable. (This will dispose of Erdmann's doubts, op. cit., 73 n. 30).Google Scholar

22 The usual translation, guardian is not adequate. The κύριoς is the person who exercises domestic power over the woman, and the chief expression of this power is his right to give her in marriage; cf. below, p. 63. While there is really no modern expression which would render the Greek notion adequately, the term master, which was suggested to me by the late Wigmore, Dean John H., may pass for an approximate translation. Dean Wigmore recalled the phrase “my lord and master,” by which the husband in English history was often addressed by the wife.Google Scholar

23 The moot question whether a father might separate his daughter from her husband against her own will is answered in the affirmative by Hruza, , op. cit. , 70; Beauchet, , op. cit., 227, 388 f.; Fredershausen, O., Hermes, XLVII (1912), 237; Taubenschlag, R., ZRG, Rom. Abt., XLVI (1926), 74 ff.; Beseler, , op. cit., 55 f.; Paoli, U. E., Studi di diritto attico (Publicazioni della R. Università degli Studi di Firenze, Nuova Serie, IX, Florence, 1930), 270; Studi sul processo attico (Studi di diritto processuale, ed. Calamandrei, II, Padua, 1933), 9; Bozza, , op. cit., 376 f.; in the negative by Levy, E., Gedächtnisschrift für Emil Seckel (Abhandlungen aus der Berliner juristischen Fakultät, IV, Berlin, 1927), 152 f.; Erdmann, , op. cit., 271 ff. I decline to take a stand, since the main source bearing on the question, i.e., a few lines in Menander's Epitrepontes, seems too vague from the legal point of view to allow of any decision. The same thing is true of the beautiful Rhesis (Papyrus Didot), supposedly also by Menander (see the translation given by Post, , op. cit., 432). As for Demosth. 41.4, I do not believe that it can be cited in support of either view. Leocrates was the adopted son of Polyeuctus. When the latter took back the former's wife, he may have availed himself of the paternal power over Leocrates which he had acquired by the adoption; cf. Koschaker, , op. cit., 109. Just what the issue was in the lawsuit filed thereupon by Leocrates against Polyeuctus and Spudias, Polyeuctus' new son-in-law, the speaker does not disclose, but sect. 27 suggests that it concerned property (see below, p. 56). In any event, if an Athenian father did have the right to dissolve his daughter's marriage at his discretion, it certainly would fit into the general marriage system; see also Beseler, and Bozza, , opp. citt. Google Scholar

24 Gaius, , Instit. 1.115, 118, 137, mentions the remancipatio only in connection with the coemptio fiduciae causa, but this residue reflects legal conditions which in an earlier period must have prevailed with respect to the marriage with manus. Cf. Girard, P.-F., Manuel élémentaire du droit romain, (7th ed., Paris, 1924), 169; Levy, E., Der Hergang der römischen Ehescheidung (Weimar, 1925), 40.Google Scholar

25 Wyse, , op. cit. , 292; Erdmann, , op. cit., 204 ff.; Koschaker, , op. cit., 86 f., 98.Google Scholar

26 This semasiological inquiry is confined to the employment of the word in the legal sphere.Google Scholar

27 There is abundant documentation. See, e.g., Law of Gortyn VI. 5-7: Isae. 2.29: Demosth. 27.61: Note also the formula ἀΠ'ϵδoτo-ἐΠρίατo in Greek instruments of sale.Google Scholar

28 Instances of both uses quoted by Th. Thalheim s.v. “Eκδoσις in Pauly-Wissowa's Real-Enzyklopädie, V, 2162. As for the maritime loan, a different interpretation of ἔκδoσις is indeed required, if Lex. Seguer. V, p. 247. 21: is a reliable source.Google Scholar

29 Ps.-Xenoph. Vectig. 4.15 f.Google Scholar

30 Isae. 8.10, Demosth. 29.14, 18, and others. Παραδιδóμαι, e.g., in Demosth. 29.17. It is not without interest that Παραδιδóναι also was occasionally employed with reference to marriage: Pap. Dura 74 (ed. Welles, C. B., Dura Report VI [New Haven, 1936], 433 f.); note also Aristoph. Birds 1675-1680; Athen. Deipnosoph. 13.556 f. B.G.U. VII. 1647 (A.D. 129): a contract by which a boy's services are leased out by his father, also has Παραδιδóναι. Google Scholar

31 P. Sammelbuch III. 6736, B.G.U. IV. 1031.Google Scholar

32 Note the βϵαίωσις;; cf. Mitteis, , op. cit., 198; also Partsch, , Griech. Bürgschaftsrecht (Leipzig, 1909), 79f.Google Scholar

33 B.G.U. IV. 1058, 1107, 1110, 1112.Google Scholar

34 Sources and literature quoted by Zambon, A., Aegyptus XV (1935), 1 ff.; see further Eitrem, S., Papyri Osloenses III (Oslo, Dybwad, 1937), p. 214 f. In the Attic literature this use occurs in Xenoph. De re equ. 2.2 f.Google Scholar

35 Koschaker, P., “Ueber einige griechische Rechtsurkunden aus den östlichen Randgebieten des Hellenismus,” Abhandlungen der Sächsischen Akademie der Wissenschaften, Phil.-Hist. Kl. , XLII, i (1932), 21; Zambon, , op. cit., 50 f.; Eitrem, , op. cit. Google Scholar

36 See Eitrem, , op. cit. Google Scholar

37 Berger, A., Die Strafklauseln in den Papyrusurkunden (Leipzig, 1911), 168 f.; Westermann, W. L., Classical Philology, IX (1914), 297 f.—It is customary to list the contracts providing for a tuition fee separately under the heading “teaching contracts”. One of these, B.G.U. IV. 1125 (Alexandria, 13 B.C.) also employs ἐκδίδoσϑαι, while the term is avoided in the other, P. Oxy. IV. 724 (A.D. 155).Google Scholar

38 In the Byzantine epoch this exact meaning was forgotten; note P.Oxy. IX. 1206 (A.D. 336), where ἐκδίδoσϑαι means to give in adoption. Google Scholar

39 See, e.g., Herod. 1.196; 2.47, Eurip. Medea 309, Suppl. 133, Aristoph. Birds 1635. Along with ἐκδιδóναι, the less specific διδóναι is found: Herod. 1.107; 5.92; 9.110, 111, Thucyd. 6.59.3, Xenoph. Anab. 7.2.38, Hellen. 4.1.4.Google Scholar

40 In Homer the constant expression is still the mere διδóναι: Iliad 6.192; 19.291, Odyssey 2.54, 223; 4.7; 15.367.Google Scholar

41 Isae. 11.1 f. Cf. Erdmann, , op. cit., 134, 359.Google Scholar

42 This is not the place to justify the above statement in detail. For the present I refer to my Written and Unwritten Marriages, 114 n. 408. See also below, p. 93. By no means can I believe that an early, perhaps pre-Hellenic, matriarchal system was influential, as was suggested by Becker, , op. cit. , 30. As for the theory advanced by Paoli, U., Studia et Documenta Historiae et Iuris, II (1936), 77 ff., see below, note 235.Google Scholar

42a Ehrenberg, V., Die Rechtsidee im frühen Griechentum (Leipzig, 1921), 131.Google Scholar

43 Erdman, , op. cit. , 208 f. Cf. also above, note 40.Google Scholar

43a Cf. also Glotz, G., La solidarité de la famille dans le droit criminel en Grèce (Paris, 1904), 80 f.Google Scholar

44 Cf. Koschaker, , Eheformen (see above, note 2), 79 ff.; Wolff, , Tijdschr. (see above, note 3), 161 ff.Google Scholar

45 Written and Unwritten Marriages , 77 n. 275.Google Scholar

46 This is the main result of the first volume of his Beiträge. Followers are listed by Erdmann, , op. cit. , 232 n. 23, who himself has accepted Hruza's theory, although his own statements are not entirely consistent, as has been justly noted by critics; see Kübler, B., Berliner Philologische Wochenschrift, LV (1935), 1380; Kreller, H., ZRG, Rom. Abt., LV (1935), 364 f.; Koschaker, , op. cit., 98, who now has given Hruza's theory the backing of his authority. Only this theory can explain the parallelism of ἐγγίη and ἐΠιδικασία. The latter involved in the case of an ἐΠίκληρoς the official sanction of the κυριϵία which existed by law and needed no special creative act; cf. Hruza, , op. cit., 5, 102 ff.; Erdmann, , op. cit., 76, 246; Koschaker, , op. cit., 107, 109.Google Scholar

47 Op. cit. , 365 ff.Google Scholar

48 Zu den griechischen Rechtsaltertümern , II ( Gymnasialprogramm, Hirschberg, 1894). See also Paoli, , Studi sul processo attico (above, note 23), 9.Google Scholar

49 Hruza, , op. cit. , 39; Partsch, J., Griechisches Bürgschaftsrecht I (Leipzig, 1909), 46 ff., 92, 306; Weiss, E., Griechisches Privatrecht I (Leipzig, 1923), 222 ff.; also herself, Bozza, op. cit., 355. That to hand over should be understood in a concrete way becomes clear from the sources cited by Partsch. In an advanced period the ἐγγύη was performed through a mere clasp of hands, but this represented the degeneration of a real act into a symbol, cf. Partsch, , op. cit., 52; Weiss, , op. cit., 225. (This also against Erdmann, , op. cit., 232, whose explanation has already been criticized by Koschaker, , op. cit., 92.) Google Scholar

50 “Der Ursprung der Bürgschaft”, ZRG, Germ. Abt. , XLVII (1927), 567645.Google Scholar

51 Beyerle, , op. cit. , 605.Google Scholar

52 Beyerle, , op. cit. , 594, 598, 599.Google Scholar

53 The interpretation of the guarantee-ἐγγύη as a pledge, which was proposed by Partsch, , op. cit. , 48 (see also Weiss, , op. cit., 226) in spite of his linguistical observations (note Beyerle's objection, op. cit., 605), prevented scholars from stating this basic fact, and so caused them to misunderstand the marriage-ἐγγύη also. In a similar way Erdmann, , op. cit., 232, is mistaken, cf. Koschaker, , op. cit.; 92, who, however, also finds the parallel in the obligatory nature of the surety contract. Cf. my Written and Unwritten Marriages, 78 n. 276.Google Scholar

54 Beyerle, , op. cit. , 598: “Die Bürgschaft ältester Gestalt … ist Treuhand des Bürgen am Schuldner”; 599: “Gestellungsbürgschaft … setzt Gewalt des Bürgen über den Schuldner voraus, die sich vom Gläubiger herleitet. Als private Rechtsmacht stellt diese Gewalt ein Treuhandverhältnis dar, kraft dessen der Bürge Gestellung schuldete und dafür haftete.” Cf. Partsch, , op. cit., 48 n. 4: “Das altslavische porαčiti ‘behändigen’, ‘anvertrauen’ (I have italicized this word) ist zugleich das Wort für ‘einem Manne verloben’ “.Google Scholar

55 Hruza, , op. cit. , 45; Bozza, , op. cit., 365.Google Scholar

56 Dareste, R., Les plaidoyers civils de Démosthène (Paris, 1875) I, xxxii; Mitteis, L., Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs (Leipzig, 1891), 231 ff., Grundzüge der Papyruskunde, 220; Caillemer, E. in Daremberg-Saglio's Dictionnaire des Antiquités II (1892), 392; Beauchet, , op. cit., 322; Lipsius, , op. cit., 492; Erdmann, , op. cit., 323, 329 (see also ZRG, Rom. Abt., LX [1940], 178 f.); Bozza, , op. cit., 382; Schulthess, O. s.v. Φϵρνή in Pauly-Wissowa's, Real-Enzyklopädie, XIX, 2045; Sontis, J. M., Die Digestensumme des Anonymus. I: Zum Dotalrecht (Heidelberger Rechtswissenschaftliche Abhandlungen, XXIII, Heidelberg, 1937), 48 f.—A different view is found in the earlier French literature, cf. Desjardins, A., “Mémoire sur la condition de la femme dans le droit civil Athénien,” Mémoires lus à la Sorbonne dans les séances extraordinaires du Comité Impérial des Travaux Historiques et des Sociétés des Savants. Histoire, Philologie, et Sciences Morales, VIII (1865), 13 f.; Gide, P., Étude sur la condition privée de la femme dans le droit ancien et moderne (Paris, 1867), 93 (both quoted by Caillemer).—Recently the husband's title to the dowry was acknowledged by Paoli, , Studia et Documenta, II (1936), 113, 115.Google Scholar

57 I am confining myself to the Athenian law. There is no doubt that the Athenian dowry system has many features in common with those of other areas in the Greek sphere, and it may have exerted some influence on the marriage property law of Hellenes who migrated to the Hellenistic kingdoms. But the Athenian system certainly cannot be considered as representative of all the Greek systems, and in the Hellenistic-Roman period other influences were active at least along with the Athenian. These matters, particularly the marriage property law of the papyri, require a special investigation which is not within the scope of this study.Google Scholar

58 Modern writers (Lipsius, , op. cit. , 488 n. 61; Erdmann, , op. cit., 318 n. 2; Schulthess, , op. cit., 2041; Chautraine, P., Mélanges Maspéro [Cairo, 1935-37], II, 223) are inclined to identify Πρoíξ and φϵρνή. As the latter does not occur as a technical term of the Attic legal language, an exhaustive treatment of the question would not be in place here. Suffice it to mention that neither Plato, , Laws 6.17, nor Plut. Sol. 20.4 testifies to the synonymity of the two terms, as will be seen from the interpretation given below, p. 57. Although in Ptolemaic marriage contracts the money dowry is called φϵρνή, it is perhaps not a matter of accident that outside of Egypt φϵρνή is often used to denote special objects given in the dowry, especially when nothing is said about their monetary value. See, e.g., Xenoph. Cyrop. 8.5.19, Aeschin. 2.31, Polyb. 28.20.9, Plut. Arist. 27.4. On the other hand, in the papyri, Πρoíξ, when used in dealings governed by Greek legal principles, is employed primarily, though perhaps not exclusively, with reference to money dowries; so in P. Amh. II.95, P.Oxy. I.75, P.Lond. II.178 (p. 207), B.G.U. III.970, all of the second century A.D. Furthermore, the papyri use Πρoíξ when referring to the Roman dos (Gnomon of the Idios Logos sect. 24, 36, B.G.U. I.114, P. Cattoui verso, P.Oxy. VI.907; X.1274; XVII.2133, P. Lips. 33, col. II); this probably also accounts for the occurrence of the term in P. Sammelbuch I.5761 and in the edict of Tib. Julius Alexander (Dittenberger, , Inscriptiones Orientis Graecae, II, 669, line 25). In these cases Greek dowries seem to be involved, but the terminology is that of Roman officials. Πρoíξ is also the word for dos in Greek papyrological and literary sources of the law of Justinian.Google Scholar

59 Examples given by Erdmann, , op. cit. , 319 ff. See also his statement on p. 323.Google Scholar

60 Isae. 3.35, Demosth. 47.57 (misunderstood by Schulthess, , op. cit. , 2047). Cf. Lipsius, , op. cit., 491; Erdmann, , op. cit., 312 n. 3.Google Scholar

61 Isae. 5.26, 27.Google Scholar

62 See Erdmann, , op. cit. , 318 n. 3.Google Scholar

63 Its inclusion is indeed commonly assumed, see Barrilleau, G., Nouvelle Revue historique de droit français et étranger , VII (1883), 165 f.; Caillemer, , op. cit., 388; Lipsius, , op. cit., 491; Erdmann, , op. cit., 317; Schulthess, , op. cit., 2046.Google Scholar

64 i.e., her former husband.Google Scholar

65 I am following the text and punctuation as given by W. Rennie in the Oxford edition (Clarendon Press, 1931) and Murray, A. T. in the Loeb Classical Library. Google Scholar

66 Modern students (see the translations given by Dareste, , op. cit. , I, 163, Kennedy, Ch. R., The Orations of Demosthenes [London, 1889], IV, 289, and, if I quite understand him, Murray in the Loeb Classical Library; further cf. Lipsius, , op. cit., 491 n. 74) have indeed referred the clause to the 1000 drachmas paid by Polyeuctus to Leocrates. This is strange, since άΠoτιμã;ν is a well-known technical expression to denote the pledging of property for a debt, and is frequently used in connection with the dowry; see Lipsius, , op. cit., 490. An especially close parallel to the passage discussed above is Dittenberger, , Sylloge Inscriptionum Graecarum (3rd ed.), III, 1189, lines 2-4: Google Scholar

67 This translation and interpretation were suggested to me by Professor H. C. Youtie.Google Scholar

68 This I infer from ϵἰκóτως. Had the speaker simply quoted Polyeuctus' valuation, he would have expressed himself in a more straightforward way.Google Scholar

69 This follows from the use of (Πρoσ)αΠoτíνϵιν, which in sect 27 and 28 has been justly accepted by editors (see also Lipsius, , op. cit. , 491 n. 74) against the evidence of some manuscripts. 'AΠoτιμαν, which is found in those manuscripts, would make no sense here; as for its meaning, see above, note 66. 'AΠoτíνϵιν, etymologically related to Πoινή, is a highly technical term with the special connotation of a payment made to forestall an execution. It is, therefore, the proper term to express a payment made on account of a judgment or of a settlement of claims brought in a lawsuit. 'AΠoτíνϵιν always implies the idea of a penalty, thus contrasting with άΠoδιδóναι, which is also technical and means the fulfilment of a debt. As far as the two verbs were concerned, the legal terminology was observed strictly. Documentation is abundant in Greek oratory, inscriptions, and papyri, cf. Wolff, H. J., Transact. Amer. Philol. Ass., LXXII (1941), 427.Google Scholar

70 In sect. 29 he goes so far as to declare that Spudias has long been in possession of 40 minas as Πρoíξ, while he, the speaker, so far has only received 30 minas. The way in which the speaker here tacitly disregards the trousseau of his own wife, while still computing that of Spudias' wife, shows the insincerity of his whole argument.Google Scholar

71 Such is, for instance, the opinion of Erdmann, , op. cit. , 318.Google Scholar

72 See Isae. 2.5, 9; 3.8, 49; 8.8, Lys. 16.10, Demosth. 40. 6, 7; 41.26; 43.54; 45.66.Google Scholar

73 Cf. Demosth. 45.30: Cf. Isae. 2.5; 11.40, Demosth. 59.50. See also the dowry register of Tenos, , Corpus Inscr. Graec. 2338b. Note, further, Isae. 3.36; et (cf. also sect. 20).Google Scholar

74 Therefore the expression used by Erdmann, , op. cit. , 318 n. 2, is contrary to the evidence.Google Scholar

75 In 20.3 he is speaking of the marriage of the ἐΠίκληρoς. Google Scholar

76 I am using, with a slight modification, the translation by Perrin, B. in the Loeb Classical Library. Google Scholar

77 According to Erdmann, , op. cit. , 223 f., Plutarch or his source misunderstood Solon's law. But Erdmann's suggestion that the law referred to funeral gifts is not convincing. The fact that Plutarch reports a Solonian restriction on funeral gifts in cap. 21.5 tends rather to confirm his report in cap. 20.4.Google Scholar

78 Examples listed by Bonner, R. J. and Smith, G., The Administration of Justice from Homer to Aristotle , I (Chicago, 1930), 82.Google Scholar

79 Dareste, R., Haussoulier, B., Reinach, Th., Recueil des inscriptions juridiques grecques (Paris, 1895), p. 57 n. 2, also suggest that Solon ruled only for the trousseau.Google Scholar

80 I omit the exceptional case that the dowry was provided by third persons, e.g., the State, as was occasionally done for the daughters of poor men of great merit, such as Aristides; Plut. Arist. 27.1. Cf. Dittenberger, , Sylloge , I, 496, lines 18 f.Google Scholar

81 The fact that clothing is mentioned several times in the famous dowry register of Myconos, Dittenberger, , Syll. III, 1215, offers no contradiction. The text represents a dowry system different from the Athenian, as shown by the fact that real property was given without a valuation (lines 27 f., 30), while clothing was valued.Google Scholar

82 Mitteis, , Reichsrecht und Volksrecht , 233; Lipsius, , op. cit., 492; Erdmann, , op. cit., 323 ff.; Schulthess, , op. cit., 2045.Google Scholar

83 Caillemer, , op. cit. , 391; Lipsius, , op. cit., 492 n. 82; Erdmann, , op. cit., 325.Google Scholar

84 Such is still the opinion of Erdmann, , op. cit. , 57, 325 f.Google Scholar

85 Beauchet, , op. cit. , 335, and others quoted by him in note 3; Partsch, , op. cit., 141 n. 1.Google Scholar

85a τὰ χωρία ἂ ἔχϵι ϑέμενoς Nι[κήρ]ατoς Παρὰ 'Eξακέστoυ. Google Scholar

86 This is disregarded by Erdmann, , op. cit. , 58, 326. Beauchet, , op. cit., 335, believes that the property had been pledged for the security of Hegecrate's dowry, but there is no evidence for this either.Google Scholar

86a Dittenberger, , Sylloge , III, 1189.Google Scholar

87 (Dittenberger, , Sylloge [1st ed.], I, 436).Google Scholar

88 Cited by Mitteis, , op. cit. , 233.Google Scholar

89 (Dittenberger, , Sylloge [3rd. ed.], III, 1188).Google Scholar

90 The question whether the function of dowry property to secure the claim for the restitution of the dowry was one of its legal qualities or whether such a function had to be agreed upon in each case is not answered by the sources. But Harpocration's statement (s.v. 'AΠoτιμηταí) that it was only customary to ask husbands to pledge some of their own property for the security of the dowry rather suggests the second alternative.Google Scholar

90a As to the probable reason for this, see Latte, K., Heiliges Recht (Tübingen, 1920), 100.Google Scholar

91 I follow the interpretation given by Ziebarth, E., Sitzungsberichte der Preussischen Akademie der Wissenschaften , 1897, p. 673. The different interpretation by Bruck, E. F., Die Schenkung auf den Todesfall (Breslau, 1909), 135 f. seems to me artificial, although it was later accepted by Ziebarth (in Dittenberger's, Sylloge ).Google Scholar

92 See Ps.-Demosth. 42.27: The circumstance that the orator here speaks of the son, not the husband, does not make any difference as to the principle.Google Scholar

93 Weiss, E., Griechisches Privatrecht , I, 285 n. 145, and the sources quoted by him. Add now the Athenian inscription of 367–66 B.C., ed. Crosby, M., Hesperia, X (1941), 16 ff.Google Scholar

94 Lipsius, , op. cit. , 493; Erdmann, , op. cit., 324 n. 10.Google Scholar

95 Beauchet, , op. cit. , 318 f.; Erdmann, , op. cit., 330 (differently ZRG, Rom. Abt. LX [1940], 154 f.). Cf. Isae. 3.35.— Müller, , op. cit. (see above, note 18), 697, and Lipsius, , op. cit., 494 n. 92 (see also Bozza, , op. cit., 382) draw a contrary conclusion from the fact that no refund of Plango's dowry is mentioned in Ps.-Demosth. or. 40, but their reasoning is not convincing. The speaker argues that Plango had brought no Πρoíξ, sect. 20-22. Had there been any, and only been retained by the father of the parties, Mantias, on the pretext of Plango's adultery, then the speaker would not have failed to stress this point, since it would have eliminated outright any claims of Plango's sons to her dowry after the death of Mantias. The reason why Mantias did not return Plango's Πρoíξ, if she had any, must be the fact that he never completely severed his marital relation with her; see the analysis of the case given below, p. 80f.Google Scholar

96 Ps.-Demosth. 40.14. Beauchet, , op. cit. , 316.Google Scholar

97 This follows from Ps.-Demosth. 42.27: It is true that the speaker considers this as unlawful and contrasts it with his own correct behavior: But this does not warrant the inference (Beauchet, , op. cit. , 312; Lipsius, , op. cit., 495; Erdmann, , op. cit., 327; Bozza, , op. cit., 382) that a widow who chose to stay with her son forfeited her right to claim the dowry in case she changed her mind, and had only a claim for support (δíκη σíτoυ). The controversy between the parties does not concern the extent of a son's indebtedness to his widowed mother on account of her dowry, but the question of what deductions may be made in the case of an άντíδoσις. The speaker means that the dowry is included in the fortune of the son when it is compared with that of his opponent, and that it is owed from whatever his fortune is—whether the original one or the one received in the exchange. The law in Ps.-Demosth. 46.20, which is cited by Erdmann, does not offset this interpretation. It lays down the duty of the son of an ἐΠίκληρoς to support his mother. As the son of the “heiress” did not inherit her estate as a Πρoíξ but as the inheritance of her father, the situation was different from that in or. 42, and the rule does not admit of any inference as to the law of the Πρoíξ. Google Scholar

98 The father of Demosthenes, having received 50 minas, gave his wife to Aphobus with a dowry of 80 minas, Demosth. 27.4f.Google Scholar

99 Other considerations, such as the interest of the man, also played their part, of course. But they may be neglected here, as they were not influential in shaping the legal principles.Google Scholar

100 The κύριoς was under no obligation to support his ward, unless the latter was an heir himself. None of the γραφαὶ κακώσϵως covers this case; see Lipsius, , op. cit. , 342 ff. Cf. also below, note 104.Google Scholar

101 This is undisputed; see Beauchet, , op. cit. , 262 ff.; Lipsius, , op. cit., 489; Erdmann, , op. cit., 307.Google Scholar

102 Demosth. 41.26.Google Scholar

103 It is not likely, however, that bringing the latter action (δíκη σíτoυ) deprived the κύpιoς of his right to bring later the δíκη Πρoικóς. Otherwise the result would have been the ultimate acquisition of the dowry by the husband, which certainly was contrary to the basic principles on which the whole system was built.Google Scholar

104 I cannot, however, agree with Mitteis, , op. cit. , 236 f., who holds that for the woman and her possible descendents the dowry took the place of a share in the succession of her father. In the presence of sons, daughters had no right of succession, just as they had no right of support. This precisely is the reason why neither the father nor the brother could be compelled to contribute a Πρoíξ. The proof of this is the law of the ἐΠίκληρoς. The “heiress” had a right to the succession in the interest of her sons, unless there was an ἀγχιστϵύς or unless her father had provided for an heir by way of adoption, either of whom had to marry one of the brotherless daughters. When there was no ἀγχίκληύς nor adopted heir, the estate went to the daughters in the ordinary way even beyond the amount of their dowries, as is evidenced by Demosth. or. 41. It is for this reason that ἐΠίκληρoι who did not become the wives of or adopted sons were the only class of women with an enforceable right to be endowed; see the law in Demosth. 43.54.Google Scholar

105 I must content myself with giving only a few characteristic examples. Isae. 2.46: Speaking of a manumission, Demosth. 36.28 calls the masters of a slave his κύριoι instead of δετΠóται, which is the usual term. The meaning is especially clear in those passages which call the guardian (ἐΠίτρoπoς) the κύριoς of his ward's estate; e.g., Isae. 1.10, Demosth. 27.55; 28.6, 24; 36.22. The same connotation, though in a somewhat broader sense, shows in passages where the word implies “to be at liberty”; cf. Isae. 6.52: Demosth. 39.39: The man caught in adultery walks out the κύριoς of himself, after having pledged himself for the penalty, Ps.-Demosth. 59.66. In manumission instruments the freed slave is granted κυριϵíα of himself; see, e.g., Dialektinschriften II, 1748: Particularly interesting is the employment of κύριoς where it connotes sovereign power vested in the officials, judges, laws, etc.; e.g., Isae. 2.47, Demosth. 24.42; 43.75; 47.18; 59, 88, 92; Aristotle, , Athen. Polit. 52.3. Related to this group is the συγγραφὴ κυρία. Google Scholar

These observations fit in with Koschaker's suggestion that the notion of a divided ownership played a part in Greek legal thought; see Ueber einige griechische Rechtsurkunden (above, note 35), 46 ff. (cf. also Zeitschrift für Assyriologie, VII [1933], 24 n. 1, and ZRG, Rom. Abt., LVIII [1938], 255 ff.). Even Koschaker's terminology, however, involves a Romanistic element and does not, therefore, seem to be entirely appropriate to the Greek conception. Cf. also Schönbauer, E., ZRG, Rom. Abt. , LIII (1933), 436.Google Scholar

106 Such distinctions as are made by Lipsius, , op. cit. , 484 n. 48, were not made by the Greeks. They used one and the same expression, because everywhere they connected it with the same idea. Only the modern mind, accustomed to the Roman idea of ownership, distinguishes between the different kinds of title.Google Scholar

107 For general information consult Buckland, W. W., A Manual of Roman Private Law (2nd ed., Cambridge 1939), 65 f.Google Scholar

108 “Zur Stellung der Frau im klassischen römischen Dotalrecht”, ZRG, Rom. Abt. , LIII (1933), 297371, especially 348.Google Scholar

109 This view is disputed by Sontis, , op. cit. (see above, note 56). Sontis, however, does not propose a theory of his own about the nature of the dos. He deals almost exclusively with the requirement of the daughter's consent to her father's actio rei uxoriae (actio adiuncta filiae persona), which he explains as a means to prevent a pater familias from wantonly dissolving his daughter's “free marriage”, op. cit., 41. This suggestion, however, raises the question why by the middle of the second century A.D. the need was felt of imperial decrees which aimed at this end more directly (Paulus, , Sentent. 5.6.15, Cod. Justin. 5.17.5 pr., Dig. Moreover, the rules laid down in these decrees were no more irregular than the actio adiuncta filiae persona. Why, then, should the republican jurists who invented the latter have chosen this indirect and awkward way instead of a more direct one? As a matter of fact, Sontis himself is forced to admit that already Labeo, , Dig., required the consent for an action brought after the dissolution of the marriage by the husband's death, and also admits that as early as this passage the actio adiuncta filiae persona reflects the tendency to preserve the dowry for the woman (cf. Wolff, H. J., op. cit., 310). To my mind, Sontis' theory blocks the access to an understanding of the particularities of the actio rei uxoriae. Here I cannot go into further detail.Google Scholar

110 The retentio propter mores is a relic of the original authority of the husband.Google Scholar

111 Wolff, , op. cit. , 349 ff.Google Scholar

112 Mitteis, , op. cit. , 243 ff.Google Scholar

113 This has caused some students (see Paoli, , Studi di diritto attico , 265 n. 1, and those quoted by him; also Bozza, , op. cit., 373) to see erroneously a parallel between the Athenian marriage and the Roman “free marriage”.Google Scholar

114 Levy, , Der Hergang der römischen Ehescheidung , 40 n.1.Google Scholar

115 This is erroneously denied by Huwardas, St. G., Beiträge zum griechischen und gräkoägyptischen Eherecht der Ptolemäer- und frühen Kaiserzeit (Leipziger rechtswissenschaftliche Studien, LXIV, Leipzig, 1931), 12. Cf. Hruza, , op. cit., 7n. 19.Google Scholar

116 See, e.g., Isae. 6.5; 8.41, Ps.-Demosth.59.13, 16.Google Scholar

117 Cf. the next section.Google Scholar

118 The above translation is Murray's in the Loeb Classical Library, slightly modified.Google Scholar

119 Murray's translation, slightly modified.Google Scholar

120 Hruza, , Beiträge cit. , vol. II: Polygamie und Pellikat nach griechischem Rechte (Erlangen and Leipzig, 1894; the two volumes will henceforth be quoted as Hruza, , I and II), 138 ff., believes that κατὰ ταὐτά refers to But, grammatically as well as logically, the words can refer only to the sanction. Cf. also Erdmann, , op. cit., 173. Hruza, II, 142, is no doubt right in assuming that this statute and that quoted in sect. 52 (see below, p. 69) presupposed Pericles' law on Athenian origin on both sides as a prerequisite for citizenship.Google Scholar

121 Op. cit. , 122 n.1.Google Scholar

122 Note also Plaut, . Trinummus , 690 f.:Google Scholar

me germanam meam sororem in concubinatum tibi,Google Scholar

si sine dote dem, dedisse magis quam in matrimonium.Google Scholar

The idea is Greek; in concubinatum means ϵἰς Πσλλακίαν. Google Scholar

123 Cf. also 8.41; 12.12, Demosth. 43.84; 57.5.Google Scholar

124 See Isae. 8.19 and Demosth. 57.54, on the one side, and Dittenberger, , Sylloge (3rd ed.) III, 921, line 110, and Isae. 12.9, on the other. Note also the contrast of γυνή and Παλλακή, in Ps.-Demosth. 59.118, which corresponds to the fact that γυνή is frequently used with particular reference to the solemnly married woman; cf. Hruza, , I, 6 f.Google Scholar

125 Paoli, , Studi di diritto attico , 265 ff.; Bozza, , op. cit., 356 ff. Bozza (op. cit., 362 f.; cf. Westrup, C. W., Zeitschrift für vergleichende Rechtswissenschaft, XLII [1927], 91) indeed exaggerates the distinction between ἐγγυητή and γαμβτή.Google Scholar

126 Cf. Levy, E., ZRG, Rom. Abt. , LII (1932), 532. Levy considers Roman law only, but his statement has a bearing upon every marriage system based on the incorporation of the woman in her husband's family. “Cf. also Koschaker, , op. cit., 125; Wolff, , Tijdschrift voor Rechtsgeschiedenis, XVI (1938), 164 ff.Google Scholar

127 It was hardly very frequent, but is safely evidenced; see, e.g., Isae. or. 3, Demosth. or. 39 and 40.Google Scholar

128 In the absence of any modern term which would be entirely adequate, the translation bastard may be used as coming closest to the meaning of νóϑoς. Google Scholar

129 Erdmann, , op. cit. , 369 f.Google Scholar

129a It certainly was not a “quasi-marriage”, as Post, , op. cit. (see note 20a), 444, suggests.Google Scholar

130 Beauchet, , op. cit., 227, 488, denies the wife's connection with her husband's sacra. His theory is unacceptable, however. Since this is not the place to enter upon a detailed inquiry into this question, I only recall the rôle which the wife of the ἄρχων βασιλϵύς played with respect to his public religious functions; see Ps. Demosth. 59. 73 ff. It is obvious that such participation in the public cult activities of her husband presupposed her attachment to his domestic cult. See also Erdmann, , op. cit., 136 f.Google Scholar

131 Elephantine-Papyri (Berlin, 1907), 29 f.Google Scholar

132 See also Berger, , Strafklauseln , (above, n. 37) 191 f., and those quoted by him in note 2. A different interpretation was suggested by Partsch, , Griechisches Bürgschaftsrecht, I, 351n.5. In Partsch's opinion, Elaphium made the payments in fulfilment of an obligation to support the recipients; the performance of this duty being a resolutory condition, on which she had been released from slavery. But Elaphium is not called a freed woman, nor does Partsch's theory explain either the words or the fact that the τρoφεία only covered short periods and are not to be understood as instalments. The danger of being “enslaved” can be explained on the subordinate social status of Elaphium (see Rubensohn, , op. cit., 30). See also Berger, , op. cit. Schubart, W., Einführung in die Papyruskunde (Berlin, 1918), 466, rejects the views of both Rubensohn and Partsch. I do not know whether the promised exposition of his own view has been published.Google Scholar

133 I have not searched the papyri in order to obtain a complete list of these cases, but I think that the evidence cited above is sufficient for our purpose.Google Scholar

134 The fact that in petitions for the appointment of a κύιoς by administrative order only the absence of a husband or relatives capable of acting as κύριoι is pointed out (cf. Wolff, H. J., Aegyptus XVII [1937], 466), is no obstacle to the above view, for the woman was hardly forced to accept the head of the household in which she happened to stay, while it is obvious that her petition had to be dismissed, if there was such a relative.Google Scholar

135 In view of P.S.I. VII, 777, P. Sammelbuch III, 7239, and B.G.U. IV, 1084, I withhold judgment, as far as Alexandrian law is concerned; cf. my Written and Unwritten Marriages, 29. It is possible that in the Πóλις of Alexandria the idea of κυριϵία over women was connected with their membership in the oκoς, as it was in the Πóλις of Athens.Google Scholar

136 Wolff, , op. cit. , 81.Google Scholar

137 As to this point, I withdraw the theory advanced op. cit., 30.Google Scholar

138 Plutarch's assertion, Alcib. 8.5, that the personal appearance before the ἄρχων of a woman who sought divorce was required in order to give her husband an opportunity to seize her by force, is not convincing. If what Plutarch reports is true, that is to say, that Alcibiades was able to drag his wife home from the ἄρχων without any interference, the reason in all likelihood was the awe in which he kept his fellow-citizens rather than any legal right. —As for the in P. Eleph. 3 and 4, see above, note 132.Google Scholar

139 Wolff, , op. cit. , 27 f., 82.Google Scholar

140 Such is the opinion of Hruza, II 89 ff.; Meyer, P., Der römische Konkubinat (Leipzig, 1895), 8 f.; Beauchet, , op. cit., 89 ff.; Erdmann, , op. cit., 108. Different opinions were advanced by Lipsius, , op. cit., 480, and Westrup, , Quelques observations (see above, note 18), 35.Google Scholar

141 Cf. the authors quoted in the preceding note.Google Scholar

142 Listed by Hruza, II 81.Google Scholar

143 See also Post, , op. cit., 446n.63.Google Scholar

144 The reading quondam for quosdam, which has been proposed (see Krueger, P., Digesta Iustiniani, Editio Stereotypa , p. 915 n.10), does not effectively remedy the text.Google Scholar

144a Cf. Post, , op. cit. , 445.Google Scholar

145 Note also Hruza, , II, 82.Google Scholar

146 Murray's translation, slightly modified.Google Scholar

147 Quotation marks mine.Google Scholar

148 Cf. Athen, . Deipnosoph. 13.592d: Google Scholar

καὶ τὴν λαγίσκαν τήν 'Iσoκράτoυς Παλλακὴν Google Scholar

149 Sect. 6, 13, 24, 45, 48, 52, 55, 71.Google Scholar

150 Murray's translation.Google Scholar

151 Quotation marks mine.Google Scholar

152 The authenticity of the statute is proved by Hyperid. 5.16. Note also Ps.-Demosth. 44.49. Lipsius, , op. cit., 471n.9; Paoli, , op. cit., 274n.l.Google Scholar

153 The rest does not interest here.Google Scholar

154 The statute further speaks of the marriage of the ἐΠίκληρoς. Google Scholar

155 Owing to the restriction of the right of citizenship to those descending from natives on both sides, which was enacted under Pericles, the writers of a later epoch primarily considered as νóϑoι the children of alien women. This onesided view has caused a good deal of confusion in ancient, as well as modern, literature. As an example may be cited the well-known definition quoted by Pollux, , Onom. 3.21: Aristotle, , Polit. 6.2.9 (p. 1319b), keeps the two cases clearly distinct and uses the term νóϑoς only for those born out of wedlock.Google Scholar

156 For example, Isae. 8.19: .—Cf. also Aristoph, . Birds 1669 f.Google Scholar

157 Hruza, , II, 121; Beauchet, , op. cit., 505 ff.; Lipsius, , op. cit., 506 ff.; Paoli, , op. cit., 273 f., Erdmann, , op. cit., 377 ff.; Kahrstedt, U., Staatsgebiet und Staatsangehörige in Athen (Göttinger Forschungen, IV, Stuttgart-Berlin, 1934, 67 ff.). Earlier literature listed by Beauchet, , op. cit., 506n.3, to whose list can be added Schenkl, H., Wiener Studien, V (1883), 62. Citizenship of νóϑoι is denied by those listed by Beauchet, , op. cit., 506n.2, further by Müller, , op. cit. (above, note 18), 741 ff.; Wyse, , op. cit., 280 ff.; Ledl, A., Wiener Studien, XXIX (1908), 198; XXX (1909), 36 ff.; Francotte, H., La polis grecque (Paderborn, 1907), 84; Gomme, A. W., Class. Phil., XXIX (1934), 131. Undecided Savage, op. cit. (above, note 18), 111 f. Lipsius' reference, op. cit., 506n.26, to the ψήφισμα quoted by Ps. Plut. Antiphon 24, is inconclusive, since it was passed under the Peloponnesian War law (see below, p. 86); cf. Müller, , op. cit., 792.Google Scholar

158 As for the background of the controversy, see below, p. 81.Google Scholar

159 In this paragraph I am using Murray's translations, with a slight modification regarding or. 40.10.Google Scholar

160 Hruza, , II, 40n.35; Beauchet, , op. cit., 513; Erdmann, , op. cit., 379.Google Scholar

161 That the δoκιμασíα, by which the eligibility of a young man was tested, offered an opportunity for such an oath follows from the fact that its procedure, both as to form and purpose, resembled that of the διαψήφισις, i.e., the trial of a fellow demesman whose citizenship was contested. As far as the latter is concerned, an oath of the mother is evidenced by Isae. 12.9. Cf. Lipsius, , op. cit. , 283; Diller, A., Transact. Americ. Philol. Ass., LXIII (1932), 201; also Bonner, R. J. and Smith, G., The Administration of Justice from Homer to Aristotle, II (Chicago, 1938), 159.Google Scholar

162 Ferguson, W. S., Class. Phil. , V (1910), 264. Differently Ehrenberg, V., Neugründer des Staates (Munich, 1925), 94.Google Scholar

163 See the ψήφισμα recorded by Suidas s.v. also Isocr. 8.88: Google Scholar

164 Translation by Perrin, B., Plutarch's Cimon and Pericles (New York, 1910).Google Scholar

165 As regards Pericles' son, Schenkl, H., Wiener Studien V (1883), 59, questions Plutarch's account of a direct permission to introduce him to the phratry, and prefers what Suidas s.v. δημoπoιητóς tells US: But Plutarch is obviously more accurate than Aelian, who was Suidas' source. What the popular assembly granted was not one of those frequent bestowals of citizenship on a foreigner, but the special privilege for Pericles, in violation of his own law, to bring to the phratry his son by Aspasia, as though he were a γνήσιoς with all the rights of ἀγχιστϵíα and Πoλιτϵία. Google Scholar

166 Wilcken, U., Grundzüge der Papyruskunde, Historischer Teil (Leipzig, 1912), 16.Google Scholar

166a Cf. also the clear distinction between citizens and νóϑoι which was made in Cos (see the inscription cited below, note 185a). See, further, Arist. Polit. 6.2.9 (p. 1319b), who mentions the admission of νóϑoι to citizenship as one of the typical features of an unhealthily radical democracy, such as, to his mind, the classical Athenian democracy obviously was not.Google Scholar

167 The words γέγoνϵ κατὰ τoὺς νóμoυς employed by Aristotle when he tells, Athen. Polit. 42.1, that before his admission to the deme the young man was tested ϵἰ ἐλϵύϑϵρóς ἐστι καὶ γέγoνϵ κατὰ τoὺ νóμoυς, may well be understood to imply legitimate birth (Wyse, , op. cit. , 281; differently Beauchet, , op. cit., 521; Lipsius, , op. cit., 506n.26; Erdmann, , op. cit., 378, 380). The fact that Pericles' law on the restriction of citizenship to descendents of Athenians on both sides apparently failed to mention legitimate birth (Aristotle, , Athen. Polit. 26.3, Plut. Pericl. 37.3, Aelian, , Var. Histor. 6.10; 13.24) is explained by the circumstance that Pericles had no reason to include this requirement, since it had already for a long time been in existence.Google Scholar

168 Paoli, , op. cit. , 275.Google Scholar

169 Erdmann, , op. cit. , 375 ff.Google Scholar

170 Müller, , op. cit. , 714; Beauchet, , op. cit., 534; Lipsius, , op. cit., 512n.46; Erdmann, , op. cit., 382n.50.— Forster, E. S., in the Loeb Classical Library, translates: “born in wedlock”.Google Scholar

171 Müller, , op. cit. , 769 n.2; Ledl, A., Wiener Studien, XXIX (1908), 199. In a different way: Kahrstedt, , op. cit., 68.Google Scholar

172 Erdmann, , op. cit. , 378 f.Google Scholar

173 No agreement has been reached yet. A brief outline of my own interpretation, which somewhat resembles the one given by Hruza, , II, 33 ff., is necessary, since three of the most recent writers, namely, Paoli, Kahrstedt, and Erdmann, have advanced very different views. Earlier literature is listed by Beauchet, who discusses the two speeches against Boeotus op. cit., 44 ff. In addition note: von Wilamowitz-Moellendorff, U., Aristoteles und Athen (Berlin, 1893), II, 179n.24; Müller, , op. cit., 679 ff.; Francotte, , op. cit., (see above, note 157), 90; Paoli, , op. cit., 276n.3; Kahrstedt, , op. cit., 66; Erdmann, , op. cit., 91 ff.; Bonner-Smith, , op. cit., II, 107 f., 159.Google Scholar

174 Note or. 40.8,9,51.Google Scholar

175 Such seems to be the opinion of Thalheim, Th., Quaestiones Demosthenicae (Gymnasialprogramm , Schneidemühl, , 1889), 9, and Wiliamowitz, , op. cit., who believed that the loss of the dowry had caused Mantias to divorce Plango.Google Scholar

176 Or. 40.13: Google Scholar

177 This raises the question whether polygamy was permitted, or at least practiced, at Athens. Hruza, II, answered it in the affirmative, but met with little agreement. To the best of my knowledge, his only follower is Damsté, O., Mnemosyne , LV (1927), 365 ff. Without taking a definite stand, I should, however, like to note that perhaps his view is less unfounded than is usually believed. If Mantias continued, or resumed, cohabiting with Plango, their relation may well have been considered as marital, since, at any rate, it was based on an ἐγγίύη. It also seems to me that the weight of or. 39.26 is underrated. It reads: The natural translation of would seem to be “another wife”; more so, since the speaker uses this reasoning as an argument against the claim of Boeotus and his brother to be Mantias' legitimate sons. That the Greeks were familiar with the idea of polygamy, at least in the form of maintaining several households, is at any rate suggested by the fact that Ptolemaic marriage contracts regularly included an express provision against it; see P. Eleph. 1, P. Giess. 2, P. Gen. 21 (in its form as given by Mitteis, , Chrestomathie der Papyruskunde, Juristischer Teil, Nr. 284), P. Teb. I.104. Cf. Taubenschlag, , The Law of Greco-Roman Egypt in the Light of the Papyri (New York, 1944), 78. The Peloponnesian War law (see below p. 86) can be reconciled with Hruza's hypothesis. If ordinarily a plurality of wives required a plurality of households, the law would have given to less wealthy citizens, who could not afford several households, the permission to keep in one household pallakai ἐΠ' ἐλενϑέρoις Παισίν along with their legitimate wives. If may be taken as referring to one particular household, no obstacle need be found either in what Herod. 2.92 says about the Egyptians: Google Scholar

178 See also Bonner-Smith, , op. cit. , II, 159.Google Scholar

179 A lost speech which Hyperides wrote against a certain Demeas is labeled by Harpocration This testimony is not conclusive, however, as we have to reckon with the possibility that Demeas' mother was accused of being a foreigner.Google Scholar

180 Müller's attempt, op. cit., 745, 806 f., to explain this on the assumption that Phile was born before 403 B.C., i.e., when the exceptional law enacted during the Peloponnesian War (see below, p. 86) was in vigor, has justly been rejected by Wyse, , op. cit. , 279, and Lipsius, , op. cit., 506n.26. If Müller were right, Phile would have been an ἐΠίκληρoς (see Isae. 3.64, 65,67-69), since the repeal of the law had no retroactive force. There is no reason to see why the non-retroactivity should have been restricted to the right of Πoλιτεία, as Müller, , op. cit., 809, suggests.Google Scholar

181 Forster's translation, with a slight modification.Google Scholar

182 Only those who were acknowledged bastards of Athenian citizens were, of course, capable of enjoying the rights indicated above. The case of Euphiletus (Isae. or. 12) shows that even the son of a woman who was admittedly Athenian was considered a mere ξένoς when his father was unknown and might be an alien.Google Scholar

183 Forster's translation.Google Scholar

184 Paoli, , op. cit. , 198, 258 f.Google Scholar

185 In this connection it is interesting to note that in the papyri Alexandrian women, who, like Athenian women, were not members of the demes, were often referred to as άσταí; see Bickermann, E., Revue de Philologie , third series, I (LIII of the whole collection; 1927), 303. Bickermann indeed draws different conclusions. Cf. also Taubenschlag, , Law of Gr.-Rom. Eg. 12n. 48.Google Scholar

185a Cf. the inscription No. 10a in Paton, W. R. and Hicks, E. L., The Inscriptions of Cos (Oxford, 1891), lines 6 ff.: (The inscription is also found in Samml. Griech Dielektinschr., III, 1, No. 3624).Google Scholar

186 To the best of my knowledge, there is indeed no source to testify to the admission of a νóϑoς to citizenship by decree. It is useless to make guesses as to the reason for this. Perhaps the fact that the νóϑoι, deprived of the right of succession, must have been a class of low social position has something to do with it.Google Scholar

187 Cf. Ferguson, , op. cit. , 259.Google Scholar

188 It is true that this consideration does not account for the recognition of Boeotus' brother. The reason why Mantias recognized him, too, cannot be found. Perhaps he did so voluntarily when it was no longer possible for him to reject both of Plango's sons. It is, at any rate, worth noting that the younger son had not sued him.Google Scholar

189 Cf. Paoli, , op. cit. , 216. These conditions also explain the term ἐλεύϑερoς in Draco's law. Freeborn is not simply a synonym of enjoying the right of citizenship (such was the opinion of Buermann, Fleckeisen's Jahrbücher für Classische Philologie, Supplement IX [1877–78], 573, who was justly criticized by Beauchet, , op. cit., 96; note also Wyse, , op. cit., 319). In Draco's day the word implied that the father might, but did not have to, introduce those sons into his phratry, thus securing for them the rights of ἀγχιστεία and Πoλιτϵία. This was changed under the democracy, as will be shown in the next chapter, but νóϑoι still were freeborn, of course.Google Scholar

190 Wolff, , Written and Unwritten Marriages , 34 ff.Google Scholar

191 Op. cit. , 46 f.Google Scholar

192 Note also Athen. Deipnosoph. 13.556a, Gellius, A., Noctes Atticae 15.20.Google Scholar

193 Translation by Yonge, C. D. in Bohn's Classical Library (London, 1853), slightly modified.Google Scholar

194 Müller, , op. cit. , 796.Google Scholar

195 Even alien women; note the sources quoted below, note 197. Whether the repeal of Pericles' nationalistic law was incorporated in the same legislation or otherwise enacted, as would be suggested if the wording of the ψήϕισμα as quoted by Diogenes be reliable in this respect, cannot be determined.—Perhaps also the ψήφισμα quoted by Suidas s.v. ναυτoδíκαι (see above, note 163), which is aimed against those who pretend to be citizens although both their parents are foreigners, should be understood from the angle of the legislation under discussion.Google Scholar

196 Philippi, A., Beiträge zu einer Geschichte des attischen Bürgerrechts (Berlin, 1870), 33, 64; Hruza, , II, 53 ff.; Beauchet, , op. cit., 98 f.; Ledl, A., Wiener Studien, XXX (1909), 183 (he believes that Pericles' law on citizenship had fallen into oblivion during the war; similarly Lipsius, , op. cit., 474, and Paoli, , op. cit., 272n.l). To the best of my knowledge, among more recent writers only Buermann, , op. cit., 595 f., and Müller, , op. cit., 786 ff., believe in the enactment, the latter basing his conviction on a detailed inquiry. Erdmann, , op. cit., 100, 171, hesitatingly accepts the accounts, but understands that the ψήφισμα, merely permitted to make νóϑoι legitimate. His view is not entirely wrong, but still implies, in my opinion, a misconception of the basic idea of the ψήφισμα. Google Scholar

197 Note the statute quoted in Ps.-Demosth. 43.51; further: Isae. 6.47; 8.43, Demosth. 57.30, Athen. Deipnosoph. 13.577b, Schol. Aeschin. 1.39. The controversy which exists regarding the interpretation of the two latter sources does not interest here.Google Scholar

198 Buermann, , op. cit. , 627; Müller, , op. cit., 780.Google Scholar

199 Note the ψήφισμα quoted by Athen. Deipnosoph. 6.234e. Zimmermann, , De nothorum Athenis condicione (Berlin, 1886), 31, and Müller, , op. cit., 780, have pointed out that the author of this ψήφισμα, Alcibiades, was the famous statesman of the Peloponnesian War.Google Scholar

200 The ψήφισμα, cited by Ps.-Plut. Antiphon 24, also seems to support this view; see Müller, , op. cit. , 792.Google Scholar

201 Athen. Deipnosoph. 13.577ab. Considering the impossibility of checking up on the reports, I take no account here of the alleged double marriages of Socrates and Euripides.Google Scholar

202 Sources in note 197.Google Scholar

203 Op. cit. , 792, 797.Google Scholar

204 This is also assumed by Bozza, , op. cit. , 371.Google Scholar

205 It is indeed true that both the reliability and even the authenticity of Aristotle's chapter 4 are in dispute. I refer to Bonner, and Smith, , op. cit. , I, 134 ff., who, to my knowledge, give the most recent account of the question. Without taking a stand in the matter, I wish to state, however, that the passage cited above at least indirectly serves our purpose, even if chapter 4, instead of depicting the constitution of the seventh century, merely reflects the oligarchic propaganda of 411 B.C., as is suggested by those scholars whose opinion is followed by Bonner and Smith. Precisely if our theory about the democratic origin of the compulsory ἐγγύη is correct, it would seem plausible that in the aristocratic epoch marital relations with full incorporation of the wife in her husband's family had been insisted upon as far as the ruling families were concerned. Athen. Polit. 4.2, therefore, probably records a true feature of the Πάτριoς Πoλιτϵία. Google Scholar

206 In this and the following quotation I am using the translation by H. Rackham in the Loeb Classical Library. Google Scholar

207 It is commonly agreed that the reliability of Aristotle's Athen. Polit. is limited. See the harsh criticism by Beloch, K. J., Griechische Geschichte , II, ii (2nd ed., Strassburg, 1916), 311, who censures the philosopher for his “gewöhnliche Nachlässigkeit” in his manner of using the sources.Google Scholar

208 It does not matter to us whether or not it is actually true that Hegesistratus was the son of a Παλλακή. Google Scholar

209 Beauchet, , op. cit. , 494; Erdmann, , op. cit., 369.Google Scholar

210 Translation by Rogers, B. B., Loeb Classical Library , slightly modified.Google Scholar

211 Op. cit. , 794.Google Scholar

212 Op. cit. , 803.Google Scholar

213 Op. cit. , 793 ff.Google Scholar

214 This may be the reason why a scholion on line 1661 (White, J. W., The Scholia on the Aves of Aristophanes [Boston and London, 1914], p. 292) suspects that Aristophanes may have invented this statute: A free invention by the poet seems out of the question in this case.Google Scholar

215 This follows from the law as quoted by Aristophanes. In this connection it is also worth mentioning that, on account of the old-fashioned term δάμαρ, the high antiquity of the statute on γνησιóτης, Ps.-Demosth. 46.18 (see above, p. 75), is generally accepted. The rule no doubt was in the Solonian code and possibly even of pre-Solonian origin.Google Scholar

216 Beauchet, , op. cit. , 492 f.; Westrup, , Quelques observations, 34; Erdmann, , op. cit., 368.Google Scholar

217 Cf. Bruck, E. F., Die Schenkung auf den Todesfall (Breslau, 1909), 41 f.; Maschke, R., Die Willenslehre im griechischen Recht (Berlin, 1926), 178.Google Scholar

218 See Kawerau, G. and Rehm, A., Das Delphinium von Milet (Berlin, 1914), Nos. 39-119b, with Rehm's note, p. 228n.2. Erdmann, , op. cit., 383, inconclusively uses these inscriptions in support of his theory that Athenian νóϑoι were admitted to citizenship.Google Scholar

219 Bonner, and Smith, , op. cit. , I, 188, believe that many of the νóϑoι who had been disfranchised after the revolution against the tyrants were re-enfranchised by Clisthenes, along with others who were granted citizenship by him. This may be true, but does not follow from what Aristotle says about the creation of new citizens by Clisthenes; see Polit. 3.1.10 (p. 1275b): Πoλλoὺς ἐϕυλέτϵυσε ξένoυς καὶ δoύλoις μϵτoίκoυς. Aristotle's short remark is our sole source on this matter. Since Aristotle in his two accounts speaks of different classes of people, I see no reason for the opinon (e.g., Busolt, G., Griechische Geschichte bis zur Schlacht bei Chaeroneia, II [2nd ed., Gotha., 1895], 20 n.2 i.f. ; Diller, A., Transact. Amer. Philol. Ass., LXIII [1932], 203 f.) that he contradicts himself.Google Scholar

220 As for the following remarks, cf. Busolt, G., Griechische Staatskunde (3rd ed., Munich, 1920), 441.Google Scholar

220a It may be noted that Cos, too, was a democracy at the time of the inscription cited above, note 185a; see Hicks, , p. xxxv of the edition. As for the date of the inscription (between 265 and about 190 B.C.), see Hicks, , p. xxxiv; Paton, , op. cit., 21, 336; Müllensiefen, P., Samml. Griech. Dialektinschr., III, i, 346.Google Scholar

221 Such was the opinion of Philippi, , op. cit. , 6 f., 132 f., whose terminology I am employing. Cf. Ehrenberg, V., Neugründer (above, note 162), 95.Google Scholar

222 Wilamowitz, , Staat und Gesellschaft der Griechen (Die Kultur der Gegenwart II, iv, 1; Leipzig, 1910), 99 f., points out that the gentilic principle continued to work after Clisthenes. I am not, however, in a position to agree with his suggestion that this was contrary to the intention of the democratic reformer. Note also the interesting statement by Becker, , op. cit. (above, note 18), 168. The observations by Körte, A., Athenische Mitteilungen, XLVII (1922-24), 1 ff., are also worth mentioning in this connection.Google Scholar

223 See, e.g., Beauchet, , op. cit. , 18.Google Scholar

224 Even the membership in the deme was determined by descent, and not by the domicile. Sons had to register with the deme of their fathers and to change demes in case of adoption, but not when they moved to another region; see Von Schoeffer s.v. in Pauly-Wissowa's Real-Enzyklopädie V, 6, 7. Note also Philippi, , op. cit., 102 ff., Paoli, , op. cit., 213 ff. As for Alexandria, cf. Wolff, , Aegyptus , XVII (1937), 368.Google Scholar

225 Philippi, , op. cit. , 192 ff.Google Scholar

226 Rosenberg, A. s.v. “Res Publica” in Pauly-Wissowa's, Real-Enzyklopädie, second series, I, 659.Google Scholar

227 Erdmann, , op. cit. , 170, where more literature is quoted.Google Scholar


229 Jacoby, F. s.v. “Herodotus” in Pauly-Wissowa's, Real-Enzyklopädie, Supplement II, 247.Google Scholar

230 The fact that Cimon, the son of Miltiades and a Thracian princess, is never referred to as a νóϑoς possibly indicates that the marriage of his parents had been contracted by way of ἐγγύη or by some other ceremony likewise aimed at the effect of making the wife a member of her husband's oκoς. If this is accurate, it would show that down at least to the time of Clisthenes solemn marriage with Athenian citizens was accessible even to barbarian women. But I prefer not to suggest any hypothesis on this point.Google Scholar

231 As for the influence of this conception on the post-classical Roman law, see my Written and Unwritten Marriages , 97 ff.Google Scholar

232 Unlike the νóϑoς even in the period of the orators, the Roman spurius had no legal family connection whatsoever, but he was a citizen. See Weiss, E. s.v. “Spurius” in Pauly-Wissowa's, Real-Enzyklopädie, second series, III, 1889 ff., where sources and literature are listed. More similar to the status of the Greek νóϑoς was that of the filius naturalis under Justinian, who assigned him a certain place in his father's family. Hellenistic influence is probable as will be shown elsewhere.Google Scholar

233 Mitteis, L., Reichsrecht und Volksrecht , 66; Beauchet, , op. cit., p. xxi, 18 f.Google Scholar

234 Cf. Ehrenberg, V., Der griechische und der hellenistische Staat (Gehrcke-Norden's, Einleitung in die Altertumswissenschaft III, ii; Leipzig, 1932), 36.Google Scholar

234a Cf., for the aristocratic period, Ehrenberg, V., Neugründer (above, note 162), 67.Google Scholar

235 To the best of my knowledge, this basic difference between the social structure of Athens—or, as we probably may say, of the Greek Πóλις in general—and that of Rome has not yet been brought to full light, nor has its effect upon the development of legal institutions in either sphere been explored. As for Rome, however, some valuable results already have been obtained, which furnish a basis for a more thorough investigation into the problems indicated. I refer the reader to Kornemann, E., “Polis und Urbs”, Klio , V (1905), 72 ff., especially, 80 ff.; Heinze, R., Von den Ursachen der Grösse Roms (Leipzig, 1925); Wenger, L., “Hausgewalt und Staatsgewalt im römischer Altertum”, Miscellanea Francesco Ehrle, II (Studi e Testi, XXXVIII; Rome, 1924), 1 ff.; Schulz, F., Principles of Roman Law (Oxford, 1936), 109 ff. On the other hand, the relation between oκoς and Πóλις at Athens is, in my opinion, misunderstood by U. E. Paoli in his recent paper “ L'ἀγχιστεία nel diritto successorio attico”, Studia et Documenta Historia et Iuris, II (1936), 77-119. Paoli suggests two independent spheres: that of the family where even minors and women are acknowledged as capable of possessing rights, and that of the state as the organization of the male adult citizens who alone are able to pursue their rights before the public authorities, so that the rights of minors and women as resulting from their position in the family are protected only indirectly through the rules governing the citizens' claims to estates and heirships, or through disciplinary measures such as the γραϕαὶ κακώσεως (see, especially, Paoli, , op. cit., 108 ff.). This “pluralistic” conception imputes to the Greeks the idea of a state entirely resting in itself and, being an organization of mere “public law”, separate from, and superior to, its members. This is a modern notion which was alien to the ancient world.Google Scholar

236 Wolff, , Tijdschrift voor Rechtsgeschiedenis , XVI (1938), 179 f., 183.Google Scholar

237 By the evolution of the law of succession; see Wolff, , op. cit. , 175 ff.Google Scholar

238 See Erdmann, , op. cit. , 365 f.Google Scholar

238a Cf. Ehrenberg, V., Neugründer , 65.Google Scholar

239 Note Menander's, Epikeiromene , 435 f.: ταύτην γνησίων Παίδων ἐΠ' ἀρóτῳ σoι δίδωμι. Google Scholar

240 Modern etymologists have connected δάμαρ with δóμoς, others with the Tocharic tam (to give birth); see Erdmann, , op. cit., 103 n. 8, who quotes the literature. Either etymology would fit into our view.Google Scholar