¹ Rejecting Andocides' testimony: Ferguson, W.S., ‘The Athenian law code and the old Attic trittyes’, in Classical Studies presented to E. Capps (Princeton 1936) 144–58Google Scholar; followed by Clinton, Kevin, ‘The nature of the late fifth-century revision of the Athenian law code’, in Studies in Attic Epigraphy, History and Topography presented to Eugene Vanderpool (Hesperia Suppl. 19, Princeton 1982) 27–37Google Scholar; Robertson, Noel, ‘The laws of Athens, 410-399 BC: the evidence for review and publication’, JHS 110 (1990) 43–75CrossRefGoogle Scholar. Attempting to reconcile Andocides' argument and Teisamenus' decree: Harrison, A.R.W., ‘Law-making at Athens at the end of the fifth century B.C.’, JHS 75 (1955) 26–35CrossRefGoogle Scholar; MacDowell, D.M., Andokides: On the Mysteries (Oxford 1962) esp. 194–9Google Scholar; id., ‘Law-making at Athens in the fourth century’, JHS 95 (1975)62-75.

² Robertson (n.1) 45-6: ‘The only source to suggest that the whole body of Athenian laws was called into question… is Andocides. The suggestion is self-serving; Andocides would have us think that Athens was created anew in 403’; we must ‘take the document by itself, and then see what Andocides has made of it’. As Ferguson (n.1) 145 n.8 put it, we must accept the decree alone as ‘fact’: ‘it is in the words of the orator, if anywhere, that we must look for perversion.’

³ Scholars have often discounted the connection between Scrutiny and amnesty: Schömann, G. F., Die Verfassungsgeschichte Athens (Leipzig 1854) 91Google Scholar; Großer, R., Die Amnestie des Jahres 403 v. Chr. (Minden 1868) 41Google Scholar; Schreiner, J., De corpore iuris Atheniensium (Bonn 1913) 92–7Google Scholar; Cloché, P., La restauration démocratique á Athènes en 403 avant J.-C. (Paris 1915) 276Google Scholar with n. 1, concluding, ‘there was only one law designed to consolidate the amnesty: the law of Archinus [for paragrapê]’.

⁴ Ἐπειδὴ δ' ἐπανήλθετε ἑκ Πειραιῶς, γενόμενον ἐφ' ὑμῖν τιμωρεῖσθαι ἔγνωτε ἐᾶν τὰ γεγενημένα, καὶ περὶ πλείονος ἐποιήσασθε σώιζειν τὴν πόλιν ἢ τὰς ἰδίας τιμωρίας, καὶ ἔδοξε μὴ μνησικακεῖν ἀλλήλοις τῶν γεγενημένων. Δόξαντα δὲ ὑμῖν ταῦτα εἵλεσθε ἄνδρας εἴκοσι. τούτους δὲ ἐπιμελεῖσθαι τῆς πόλεως, ἕως ἂν οἱ νόμοι τεθεῖεν. τέως δὲ χρῆσθαι τοῖς Σόλωνος νόμοις καὶ τοῖς Δράκοντος θεσμοῖς. (82) Ἐπειδὴ δὲ βουλήν τε ἀπεκληρώσατε νομοθἐτας τε εἵλεσθε, εὕρισκόν τε τῶν νόμων τῶν τε Σόλωνος καὶ τῶν Δράκοντος πολλοὺς ὄντας οἷς πολλοὶ τῶν πολιτῶν ἔνοχοι ἦσαν τῶν πρότερον ἕνεκα γενομένων, ἐκκλησίαν ποιήσαντες ἐβουλεύσασθε περὶ αὐτῶν, καὶ ἐψηφίσασθε, δοκιμάσαντες πάντας τοὺς νόμους, εἶτ' ἀναγράψαι ἐν τῆι στοᾶι τούτους τῶν νόμων οἳ ἂν δοκιμασθῶσι. Καί μοι ἀνάγνωθι τό ψήφισμα… (85) Ἐδοκιμάσθησαν μὲν οὖν οἱ νόμοι, ὦ ἄνδρες, κατὰ τὸ ψήφισμα τουτί, τοὺς δὲ κυρωθέντας ἀνέγραψαν εἰς τὴν στοάν.

⁵ For convenience I shall sometimes render this crucial phrase as ‘not to recall (past) wrongs’. But, as Alan Boegehold pointed out to me, the compound mnêsikakein often seems closer to ‘injure by recalling’. The brunt of the prohibition falls upon the second element -kakein; the genitive phrase that often follows, usually in the perfect (gegenêmenôn or parelêluthotôn), goes closely with the first element, mnêsi-.

⁶ Where the MSS read νομοθέτας τε εἵλεσθε, εὕρισκόν τε, κτλ., editors have emended to the participle εὐρίσκοντες, to agree with ‘you (Athenians)’. It seems preferable to keep εὕρισκον (or regularize to ηὕρισκον). For comment on key phrases, see also below at n.64.

⁷ Cf. 86: αὐτῶν ἕνεκα τῶν νυὶ ποιουμένων, ἵνα τούτων μηδὲν γίγνηται μηδὲ ἐξῆι συκοφαντεῖν μηδενί.

⁸ Similarly Teisamenus begins (And. 1.83) by recognizing a fundamental covenant, to abide by the laws of Solon and Draco; cf. Xen. HG 2.4.42, νόμοις τοῖς ἀρχαίοις χρῆσθαι. On this conservative mandate, see below §IV.

⁹ Amnestia as a guarantee of political forgiveness emerged in the Hellenistic period; cf. U.E. Paoli, Studi sul processo attico (Padua 1933) 122-3 with nn.2-3. Provisions for amnestia as specific pardon (without mê mnêsikakein): SIG³ 633 (Miletus, 180 BC), SEG 29.1130bis (Temnos, 2nd c. BC). Especially revealing is the treaty between Miletus and Magnesia, SIG³ 588, traditionally dated 196; Ager, S., Interstate Arbitrations in the Greek World, 337-90 B.C. (Berkeley 1996) 109Google Scholar, preferring a date in the 180s. All who served as generals or other officials in the recent conflict are to have ‘amnesty and immunity’ for acts of war (ἄδειαν καὶ ἀμνηστίαν, 60-4). The closing oath then follows the traditional form (78-89): πάσας διαφυλάξειν τὰς συνθήκας καὶ ἐμμενεῖν τοῖς δεδογμένοις καὶ μνησικακήσειν περὶ μηθενὸς τῶν προγεγονότων (bis).

¹⁰ On Andocides' confusion and family tradition, see Thomas, Rosalind, Oral Tradition and Written Record (Cambridge 1989) 139–44CrossRefGoogle Scholar; cf. MacDowell, Andokides (n.1) 212-13.

¹¹ Funke, P., Homónoia und Arché (Historia Einzelschrift 37, Wiesbaden 1980) 17–22Google Scholar.

¹² The fixed idea that the Athenians invoked amnestia of the Hellenistic type owes much to Cicero, who cited the Athenian precedent in 44 (Phil. 1.1). Cf. Großer (n.3) 38-41; Canfora, L., Studi di storia della storiografia Romana (Bari 1993) 307–9Google Scholar, insisting that Cicero used the proper term, mê mnêsikakein.

¹³ This meaning is explored with great insight in recent work: Loraux, Nicole, La cité divisée. L'oubli dans la mémoire d'Athènes (Paris 1997) esp. 146–72Google Scholar; Wolpert, Andrew, Remembering Defeat. Civil War and Civic Memory in Ancient Athens (Baltimore 2001)Google Scholar.

¹⁴ For example, Lysias 30. 9-16, well analysed by Todd, S.C., ‘Lysias against Nikomachos: the fate of the expert in Athenian law’, in Foxhall, L. and Lewis, A.D.E. (eds), Greek Law in its Political Setting (Oxford 1996) 101–31Google Scholar.

¹⁵ Cf. Herodotus 8.29: the Thessalians propose to settle with the Phocians, ‘let us be paid 50 talents in compensation, and we shall then have satisfaction and (thereafter) shall not recall past wrongs’ – τὸ πᾶν ἔχοντες οὐ μνησικακέομν.

¹⁶ Thus Demosthenes objects, 23.191-3: ‘One must not mnêsikakein… But I think this word would rightly be used if, in some crisis, a pledge of assistance had been written (βοηθείας γεγραμμένης)… Since such is not the case…’ the objection mê mnêsikakein does not apply. Cf. Dem. 18.94-9: Athens made alliances with old enemies and then resisted the urge for reprisal (οὐ μνησικακήσετε). Cf. Aelius Aristides, Leuktrikos 432.1-8 (Jebb): ‘if we have never received our fair share, we escape the imputation of mnêsikakein, though we pursue our claims against them; for whoever perpetrates some further injury when he has already satisfied his just claims… this I regard as mnêsikakein’.

¹⁷ Estoppel has evolved into an elaborate doctrine of equity but it remains, in simplest terms, ‘[a] bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true’ (Black's Law Dictionary, ed. B. Garner (7th edn, St. Paul, MN 1999) 570).

¹⁸ IG i³ 76 = Tod 68; SEG 3.16. The first surviving lines provide for lawsuits: […διδόντ δὲ τὰς δί[κας…], as Tod recognized (167). The oath of the Athenians: (12-16) … ἀμυνῶ τοῖς] Βοττι[αίοις τοῖς] χσυντιθεμέ[νοις τὴν χσυμμαχίαν, κ]αὶ τὴν χσ[υμμαχία]ν πιστῶς καὶ [ἀδόλως φυλάχσω Βοττι]αίοις προ[θυμεν]ος κατὰ χ[συγκείμενα, καὶ οὐ μνη]σικακήσω τῶ[ν παρ]οιχομένων ἕνεκα. Oath of the Bottiaeans and provision for publication (1622): … οὐδε μνησικακήσω τῶν ἕνεκα. Τὰς δὲ χσυνθήκας τά[σδε καὶ τὸν ὅρκον κατα]θεῖναι…

¹⁹ The fundamental covenant, ἀπιέναι ἐπὶ τὰ ἑαυτῶν or ἔχειν τὰ ἑαυτῶν, encompassed the full range of citizen rights to property and legal recourse. Cf. Brasidas' edict at Amphipolis, Thuc. 4.105.2: τὸν βουλόμενον ἐπὶ τοῖς ἑαυτοῦ τῆς ἴσης καὶ ὁμοίας μετέχοντα μένειν; at Torone (4.114.1), τὸν βουλόμενον ἐπὶ τὰ ἑαυτοῦ ἐξελθόντα ἀδέως πολιτεύειν. With relocation, τὰ ἑαυτοῦ entails only moveable goods (at Amphipolis, τὸν δὲ μὴ ἐθέλοντα ἀπιέναι τὰ ἑαυτοῦ ἐκφερόμενον). But otherwise the primary implication is that each party will hold or recover his real property as well as moveables. Cf. Thuc. 5.18.5, of the cities recovered by Athens, ἐξέστω ἀπιέναι ὅποι ἂν βοῦλωνται αὐτοὺς καὶ τὰ ἑαυτῶν ἔχοντας. Similarly in the Athenian decree for Elaeus (341/40) IG ii² 228 (= Tod 174) 11-15, Chares is to see to it, ὅπως ἂν ἔχοντες… τὰ ἑαυτῶν ὀρθῶς καὶ δικαίως οἰκῶσιν.

²⁰ IG ii² 111 = Tod 142 (362 BC). Oath of the Athenians and the allies (56-61): Οὐ μνησικακήσω τῶν πα[ρ]εληλυθότων πρὸς Κείους οὐδ[ε]νός, οὐδὲ ἀποκτενῶ… οὐδὲ φυγάδα ποήσω τῶν ἐμμενόντων τοῖς ὅρκοις καὶ τ]αῖς συνθήκαις ταῖσδε. Answered by the oath of the Ceans, 82-4. For the settlement at Ceos, see Dreher, M., Hegemon und Symmachoi: Untersuchungen zum Zweiten Athenischen Seebund (Berlin 1995) 120-4, 136CrossRefGoogle Scholar; Dreher 150 suggests a similar intervention is recorded in the very fragmentary IG ii² 281, where the closing oath, οὐ μνσικακήσω, is preserved.

²¹ Diodorus 17.109, 18.8; cf. Justin 13.5. The event is mentioned by Dinarchus 1.81 and Hyperides, Against Demosthenes col. 18. Even Diodorus, writing in an era when amnestia was current, did not characterize this event with that term: it is called simply kathodos (probably following his third-century source Hieronymus). On the setting, see Worthington, Ian, ‘The date of the Tegea decree (Tod ii 202): a response to the diagramma of Alexander III or of Polyperchon?’, AHB 7.2 (1993) 5964Google Scholar; Heisserer, A.J., Alexander the Great and the Greeks: the Epigraphic Evidence (Norman, OK 1980) 205–29Google Scholar. Worthington persuasively defends the traditional date of 324; Tegea is the only community we know to have complied (and did so grudgingly). The amnesty at Mytilene (Tod 201) is built on similar arrangements, probably concluding mê mnêsikakein, now more plausibly dated 333/2: Worthington, , ‘The date of the Mytilene decree’, ZPE 83 (1990) 194–214Google Scholar.

²² Plassart, A., ‘Règlement concernant le retour des Bannis à Tégée en 324 av. J.-C.’, BCH 38 (1914) 125–60CrossRefGoogle Scholar; IG v.2 p. xxxvi; Heisserer (n.21) 213-25.

²³ A useful reassessment of the covenants was given by Loening, T., The Reconciliation Agreement of 403/402 BC in Athens (Hermes Einzelschrift 53, Wiesbaden 1987)Google Scholar. Stephen Todd's Cambridge dissertation, ‘Athenian Internal Politics 403-395 BC with Particular Reference to the Speeches of Lysias’ (1985, unpublished) gives an excellent critique of the self-congratulatory tradition and the scholarship that has followed it, with a survey of evidence on the terms of amnesty (59-70) and a catalogue of apparent violations (71-154).

²⁴ On the formula ἀπιέναι ἐπὶ τὰ ἑαυτῶν, see above n.19. For recovery of real property, cf. Isoc. 16.46. Lysias, Against Hippotherses, involves a dispute over slaves, but gives incidental confirmation for the rule on real property. The advocate for Lysias notes that Lysias as a non-citizen owns no land or houses which he would have recovered had he been a citizen (35-46). For various parallels, see Gehrke, H.-J., Stasis. Untersuchungen zu den inneren Kriegen in den griechischen Staaten des 5. und 4. Jahrhunderts v. Chr. (Munich 1985) 262–4Google Scholar.

²⁵ Kühn, J.-H., ‘Die Amnestie von 403 v. Chr. im Reflex der 18. Isokrates-Rede’, WS NF 1 (1967) 35Google Scholar, assumes ‘die Rückkehr in die Haupstadt… auch die Wiedereinsetzung in die alten Rechte’; but denies that it entails full restoration of property rights. Similarly, Loening (n.23) 53 argues that the formula does not convey full property rights, that some compensation was required; his argument relies upon a doubtful reading in Lysias, Against Hippotherses; see now Sakurai, M., ‘A new reading in POxy 13.1606’, ZPE 109 (1995) 177–80Google Scholar.

²⁶ Thus Loening (n.23), rightly. This is the natural implication of Hippotherses 30-5: those who had ‘seized this property, valued at 70 talents, were not able to dispose of it or acquire it over many days’. Evidently the agents for the Thirty were responsible for seeing that confiscated property was sold, presumably with two-thirds of the revenue to the state, or to purchase it from the state if they saw fit to legitimize their depredations. Hippotherses and associates had not done so. Property that had been properly paid for had to be repurchased by returnees, but property that had not been converted to state revenue could be simply seized by the returning owner.

²⁷ Loening (n.23) 51-2 assumes that payment is half the purchase price, and the holders are not required to sell at that price. But this is overly generous. It is clear that Hippotherses made a claim for half the value of the item(s) at issue, but thus far Lysias has refused to pay; his advocate insists that he is entitled to recover his chattel without compensation.

²⁸ Isoc. 18.20, discussed below, p. 10. Loening (n.23) 56 insists there was no such clause; it was simply implicit in the amnesty.

²⁹ MacDowell, D.M., ‘The chronology of Athenian speeches and legal innovations in 401-398 B.C.’, RIDA 18 (1971) 267–73Google Scholar. Lys. 17.3 refers to a case prosecuted as soon as dikai astikai were allowed, with trial in 401/400. Todd takes issue: ‘Athenian Internal Politics’ (n.23) 13 n.15, 210-12. And David Whitehead has now shown that the end of the iustitium may be earlier than that first dated trial: ‘Athenian laws and lawsuits in the late fifth century B.C.’ (forthcoming in Mus.Hel.). But I doubt that MacDowell's chronology needs to be altered by much.

³⁰ Ath. Pol. 40.3-4: οὐ αὰρ μόνον τὰς περὶ τῶν προτέρων αἰτίας ἐξήλειψαν, ἀλλὰ καὶτὰ χρήματα Λακεδακεδαιμονίοις ἃ οἱ τριάκοντα πρὸς τὸν πόλεμον ἔλαβον ἀπέδοσαν κοινῆι, κελευούσων τ ῶν συνθηκῶν οὐ αὰρ μόνον τὰς περὶ τῶν προτέρων αἰτίας ἐξήλειψαν, ἀλλὰ καὶτὰ χρήματα Λακεδακεδαιμονίοις ἃ οἱ τριάκοντα πρὸς τὸν πόλεμον ἔλαβον ἀπέδοσαν κοινῆι, κελευούσων τ ῶν συνθηκῶν. The risk of retaliatory fines is illustrated by the turn of events at Phleius in 384-379: Xen. 5.2.10, 5.3.10-13, 25; cf. Gehrke (n.24) 263.

³¹ Notably Loraux, La cité divisée (n. 13) 152-4, treating this erasure as a therapeutic strategy. The essay containing this comment, ‘De l'amnistie et de son contraire’, was originally published in Usages de l'oubli (Paris 1988)Google Scholar; later translated by Pache, Corinne in Mothers in Mourning, with the Essay ‘Of Amnesty and its Opposite’ (Ithaca and London 1998) 89–91Google Scholar.

³² Aleiphein and its compounds in Ath. Pol., all used of deleting the written record: 36.2, 47.5(bis), 48.1, 49.2. The metaphor is rare outside drama. Loraux cites Theaetetus 187b.

³³ The bouleutic oath amended to include this restriction: And. 1.91. Relied upon by Philon to quash endeixis: Isoc. 18.22. On homicide law and the amnesty, see Carawan, E., Rhetoric and the Law of Draco (Oxford 1998) 125–33Google Scholar.

³⁴ The homicide provision in Ath. Pol. 39.5 is corrupt but plausibly reconstructed: see Chambers', M. apparatus, Aristoteles' Athenaion Politeia (Leipzig 1986)Google Scholar, and Rhodes, P.J., A Commentary on the Aristotelian Athenaion Politeia (Oxford 1993)Google Scholarad loc. At some point in the tradition a scribe or editor apparently thought that what was required was a rule specifically regarding retributive violence; cf. Thalheim, T., ‘Zu Aristoteles' Ἀθηναίων πολιτεία’, BPW 19 (1909) 703Google Scholar, reading εἴ τις… ἐκτείσαιτο.

³⁵ Lysias 12.35 and [Lys.] 6.18 attest that the Athenians made proclamation against the surviving oligarchs outside Athens, offering a reward dead or alive.

³⁶ Ath. Pol.'s report of this provision parallels Andocides (1.90) and could derive from him. Leaving aside the arrangements for a separate enclave at Eleusis (moot by 400), the only covenants that Ath. Pol. attests for Athens are those promoted by Andocides: the rule for homicide (39.5); the cancellation of public liabilities (40.3); and this provision for the special accountings.

³⁷ In the standard closing, such as we find at Iulis and Tegea, the parties swear mê mnêsikakein and, in the same breath, to protect and defend all who join in the covenants; those who violate or remain outside the covenants are not protected and may be treated as public enemies.

³⁸ Confusion has arisen from Ath. Pol.'s reference to the accountings of Rhinon and his colleagues (38.4). From this example scholars suppose that the Thirty et al. might remain in Athens safely for some time pending their accountings. But Ath. Pol. makes this distinction: Rhinon's group remained in office, ‘took charge under oligarchy and rendered accounts under democracy’ in the ordinary way, at the end of their term; the arrangement in 39.6 applies to those who were driven from office and took refuge in Eleusis. Ath. Pol. seems unaware of any holdover from the Thirty who might have remained at Athens. Presumably any who returned for accounting would have safe passage, as for voluntary exiles in the homicide law, Dem. 23.72.

³⁹ Seventh Letter 336e-337a; cf. Thuc. 4.74.2-3, 8.73.6; Diodorus 15.40.1-2.

⁴⁰ Ordinary courts were closed to civil suits for some time (above, n.29). Any regressive public suit that made it to court must be dealt with by the court as the highest authority, and Archinus had no grounds to punish a man for retribution that the court had sanctioned.

⁴¹ The usual view, that the mnesikakôn had been prosecuting illegal lawsuits, is awkward at best; see Rhodes, CAAP (n.34) ad loc., reasoning that the effective barrier to vindictive litigation was really Archinus' law for paragraphê. See Carawan (n.33) 130-2.

⁴² Dem. 24.56 = Andocides 1.87-8, Νόμος.) Τὰς δὲ δίκας καὶ τὰς διαίτας κυρίας εἶναι ὁπόσαι ἐν δημοκρατουένῃ τῇ πόλει ἐγένοντο. [Τοῖς δὲ νόμοις χρῆσαι ἀπ᾿ Εὐκλείδου ἄρχοντος.] The limitation ‘from Eucleides’ is out of place: in Dem. 24.56, we find a more competent version without the rule ‘from Eucleides’; see below at n.67. The substance of the first provision in both versions is confirmed by Isoc. 18.24 and by Andocides 1.88: ‘You ratified dikai and diaitai, all those transacted under democracy, so that there be no default upon obligations nor resurrecting settled suits, but private transactions should take effect.’

⁴³ Thus Wolff, H.J., Die attische Paragraphe (Graezistische Abhandlungen 2, Weimar 1966)Google Scholar; J.-H. Kühn (n.25) 31-73. Kühn is misled on many points by the fixed assumption that the trial is about amnesty in the modern sense, as a bar to prosecuting injuries in the first instance. Thus he explains away the emphasis on the prior settlement and the specific covenant protecting informants (discussed below). He assumes that amnesty itself is at issue, therefore that the case belongs to a year of great crisis, soon after 403 (pp. 50-1); passages suggesting a later date must be late addenda (pp. 70, 73).

⁴⁴ Isoc. 18, Against Callimachus: (2-3): εἰπόντος Άρχίνου νόμον ἔθεσθε ἄν τις δικάζηται παρὰ τοὺ ὅρκους, ἐξεῖναι τῷ φεύγοντι παραγράψασθαι, τοὺς δ᾿ ἄρχοντας περὶ τούτου πρῶτον εἰσάγειν δὲ προν τὸν παραγραψάμενον, ὁπότερος δ᾿ ἂν ἡττηθῇ, τὴν ἐπωβελίαν ὀφείλειν, ἵν᾿ οἱ τολμῶντεςμνησικακεῖν μὴ μόνον ἐπιορκοῦντες ἐξελέγχοιντο μηδὲ τὴν παρὰ τῶν θεῶν τιμωρίαν ὑπομένοιεν ἀλλὰ καὶ παραχρῆμα ζημιοῖντο. Dorjahn, A., Political Forgiveness in Old Athens: The Amnesty of 403B.C.. (Evanston, IL 1946)Google Scholar, supposed that this summary is all text of the law (and he is often followed) but the final clause (ίν᾿ οἱ τολμῶντες μνησικακεῖν … ἐξελέγχοιντο) is surely the orator's insight.

⁴⁵ Isoc. 18.4: οὐ μόνον παρὰ τὰς συνθήκας δικαζόμενον ἀλλὰ καὶ περὶ τῶν ἐγκλημάτων ψευδόμενον, καὶ προσέτι δίαιταν ἡμῖν γεγνημένην περὶ αὐτῶν. The third phrase in the tricolon is climactic and meant to seem decisive.

⁴⁶ Isoc. 18.12: οὐκ εἰσαγγιμος ἦν ἡ δίκη διαίτης γεγενημένης.

⁴⁷ Osborne, R. has aptly dubbed this open-ended process ‘re(dis)tribution’ ‘Law in action in Classical Athens’, JHS 105 (1985) 40–58CrossRefGoogle Scholar. The development of paragraphê as a function of this process will be treated in detail elsewhere. On later tradition (and modern misreading), see Carawan, E., ‘What the laws have pre-judged: paragraphê and early issue-theory’, in Wooten, C. (ed.), The Orator in Action and Theory in Greece and Rome (Leiden 2001) 17–51CrossRefGoogle Scholar.

⁴⁸ As Victor Bers pointed out to me in correspondence.

⁴⁹ As Todd recognized, ‘Athenian Internal Politics’ (n.23) 108. J.-H. Kühn (n.25) 64 n.47 accepted the rule regarding informants and denouncers but discounted it in this case, supposing confiscations under the oligarchs were not regarded as lawful phasis and therefore the informants were not covered by this safeguard.

⁵⁰ As illustrated by the agreement in [Dem.] 59.45-7, concluding μὴ μνησικακεῖν. See Scafuro, A., to whom I owe this parallel, The Forensic Stage: Settling Disputes in Greco-Roman New Comedy (Cambridge 1997) 121–2CrossRefGoogle Scholar. This aspect of private settlements is reflected in Aristotle, Rhet. 1381b4, describing credible characters as μὴ μνησικακοῦντας μηδὲ φυλακτικοὺς τῶν ἐγκλημάτων ἀλλ᾿ εὐκαταλλάκτους, suggesting not that such persons simply abandon their grievances but that they adhere to their settlements, ‘well reconciled’. Mê mnêsikakein invoked the same principle in community reconciliation as in private settlements: Dem. 40.46.

⁵¹ In this instance the endeixis was merely a weapon of intimidation: Cephisius left Andocides at liberty until the trial, expecting him simply to retreat into exile. Instead, Andocides stood his ground, believing that the warrant was invalid because his status had changed.

⁵² MacDowell, Andokides (n. 1) 201: ‘The amnesty of 403 was, legally, quite irrelevant to And.'s case. He was being prosecuted for entering temples in 400.’ Similarly, in Athenian Homicide Law (Manchester 1963) 138Google Scholar, and The Law in Classical Athens (London 1978) 121–2Google Scholar, MacDowell explains the case against Agoratus (for complicity in a homicide): the prosecutor evades the amnesty by proceeding against the trespass (after democracy was restored).

⁵³ This is true even of [Lys.] 6: amid the rantings against Andocides pharmakos, it never occurs to this writer that the amnesty defence is bogus because the crime at issue is the trespass.

⁵⁴ In Ant. 5, the defendant had to be arrested while trespassing in Athens, but the speech for trial shows that the question of whether he trespassed is never debated. In the case against Agoratus (Lys. 13.85-7) the trouble-some question of whether the prosecutor apprehended Agoratus ep' autophôrôi could be easily answered if the crime at issue were the trespass. But the speaker never even considers this implication. Again, when Demosthenes discusses homicide arrest (23.80), he treats the prohibited areas as a sort of threshold for punishing the killer, not as though the trespass was a separate crime (bringing defilement). Cf. Carawan (n.33) 362-5.

⁵⁵ In cases where the original crime was already tried and an atimos then violated restrictions imposed by the prior verdict, the issue might well be the gravity of the trespass or whether the prohibition really applies; such cases would correspond to modern ‘civil death’ issues, involving convicted felons who exercise the rights that they have lost; see Black's (n. 17) 238. Such a case would not ordinarily go to the jury for trial; the magistrate could dispose of it.

⁵⁶ Andocides is also accused of laying a suppliant's bough on the altar; this count of the indictment was invented to provide new grounds for the suit, beyond the old liability. But it has nothing to do with trespass by an atimos; it would be a violation for anyone, of any status.

⁵⁷ As MacDowell observed (Andokides (n.1) 200-1), there is no hint that Patrocleides' decree specifically cancelled Isotimides' decree; if it had, Andocides would have said so. The authenticity of the inserted document is generally accepted. Many of the suspect details might derive from the collector's handling, especially at beginning and end. Thus the prescript lacks all but the mover; Andocides promises an oath of homonoia, which the document lacks.

⁵⁸ A detailed analysis of the various categories is given by Hansen, M.H., Apagoge, Endeixis and Ephegesis against Kakourgoi, Atimoi and Pheugontes (Odense 1976) 55–90Google Scholar.

⁵⁹ Such are the decrees imposing ἀτιμία κατὰ πρόσταξιν. On abrogating, see Boegehold, Alan, ‘Andokides and the decree of Patrokleides’, Historia 39 (1990) 149–62Google Scholar.

⁶⁰ A clause in §78 covers suits in euthynai that have not yet gone to court (μήπω εἰσηγμέναι). Otherwise, all measures deal with sentences already imposed.

⁶¹ And. 1.76: ταῦτ᾿ οὖν ἐψηφίσασθε ἐξαλεῖψαι πάντα τὰ ψηφίσματα. The ταῦτα is resumptive and refers back to all the measures that Andocides has listed. He turns to the Scrutiny of ‘all the laws’ without any such listing but implying ‘all relevant laws’.

⁶² This is the formula repeated by Xenophon, HG 2.4.31, 38, first invoked by Pausanias and then by Thrasyboulus. For restoration of rights, see above n.19; IG ii² 111 = Tod 142, 49-51; Aeschines 3.154, of war orphans assuming their property and the rights that go with it.

⁶³ Thus Andocides argues a fortiori (86), ὃπου οὖν ἀγράφωι νόμωι οὐκ ἔξεστι χρήσασθαι, ἦ που [ἂν] ἀγράφωι γε ψηφίσματι παντάπασιν οὐ δεῖ γε χρήσασθαι.

⁶⁴ MSS ἕως ἂν οἱ νόμοι τεθεῖεν. Stahl's emendation is easy (ΑΛΛΟΙ for ANOI), and it seems to give good sense (the laws of Draco and Solon are in effect, while other laws will be passed). But ἕως ἂν with optative meaning ‘until’ is quite plausible (Smythe 2421, with various parallels). The passage (above n.4) presupposes an arrangement for necessary legislation. Evidently it was agreed in the diallagai that an interim committee would govern until the democratic machinery could be re-established; this would require the services of nomothetai; the twenty would serve until these fundamental laws were in place.

⁶⁵ Part of the same agenda was the re-enacted citizenship law, which also limited secondary remedies against former atimoi by re-establishing status and property rights. We are told that the qualifications for citizenship and inheritance were strictly applied from 403, but not retroactively (Dem. 43.51, 57.30). By another theory, Kuhn, G., ‘Untersuchungen zur Funktion der Saülenhalle 111. Die Stoa Basileios in Athen’, JDAI 100 (1985) 200–26Google Scholar, argues that the laws posted in Stoa Basileios in 403/2 were those not amended in the Scrutiny (such as the homicide law).

⁶⁶ Thür, Gerhard has argued, ‘Rechtsvorschriften und Rechtsanwendung in Athen (5./4. Jh. v. Chr.)’, in Timai J. Triantaphyllopoulou (Athens 2000) 89–100Google Scholar, that the rule against unwritten law was not a juristic principle but an instruction to the archons. I would add, that reading of the rule especially suits this context: as corollary to the Scrutiny, the archons are to authorize only the remedies ‘written up’ in the Stoa and only ‘to apply from Eukleides’. Thus Andocides asks first (§86), ‘Is there any exception here by which an officer can introduce [a case]…?’

⁶⁷ Dem. 24.56: τὰς δίκας καὶ τὰς διαίτας, ὅσαι ἐγένοντο ἐπὶ τοῖς ἐν ημοκρατυμένηι τῆι πόλει, κυρίας εἶναι … ὁπόσα δ᾿ ἐπὶ τῶν τριάκοντ᾿ ἐπράχθη ἢ δίκη ἐδικάσθη ἢ ἰδίαι ἢ δημοσίαι, ἄκυρα εἶναι. It is again doubtful whether this is the document intended, but it is clearly not constructed from the orator's argument, as Demosthenes makes no reference to the rule on dikai and diaitai – indeed he is dealing with public obligations.

⁶⁸ Like Solon's Amnesty Law (above, n.12), this measure probably began with a genitive to mark the category: ΑΤΙΜΏΝ.

⁶⁹ As MacDowell recognized, Andokides (n.1) 128, the rule to apply the laws from Eucleides is a statute of limitations: ‘[it] is the law carrying out the decision in 81, μὴ μνησικακεῖν…’.

⁷⁰ MacDowell, Andokides (n.1) 194-5, explains the process: ‘So in 403 it was decided to review all the laws to decide which of them needed to have fresh clauses added to cover the eventualities not foreseen before 404/3… Many laws (perhaps nearly all) having recently been revised were now perfectly adequate as they stood… some laws in force before 404 had been destroyed by the Thirty… these had to be reinscribed.’ On the latter, see below n.79.

⁷¹ Cf. Dem. 23.51, with Hansen, Apagoge (n.58) 113-18; Carawan(n.33) 82.

⁷² MacDowell argued, ‘Kephisios escaped prosecution in two distinct ways’: he is not liable both because one must apply the laws from Euclides and because one can only apply the current laws, and the current law does not allow arrest and imprisonment on order of the council. But Andocides certainly proceeds as though the two are one and the same.

⁷³ As in the cases of Agoratus and Menestratus (Lysias 13): see Carawan (n.33) 354-72, esp. 371-2. The exception regarding the ‘planner’ or accomplice is confirmed by Ath. Pol. 39.5.

⁷⁴ Demophantus remains valid: Dem. 20.159; decreed ‘after the Thirty’, Lyc. Leocr. 124-7.

⁷⁵ Patrocleides' decree indicates that there was no general amnesty after the fall of the 400: officers were subject to various disabilities (at least until 405), and some were inscribed as exiles (and not even reprieved in 405). Before Demophantus, ἄρχει χρόνος provisions affect specific obligations – terms of a treaty, schedule of payments, etc. – not procedural laws.

⁷⁶ Dem. 24.42: ΝΟΜΟΣ: Διοκλῆς εἶπεν· τοὺς νόμους τοὺς πρὸ Εὐκλείδου τεθέντας ἐν δημοκρατίαι καὶ ὅσοι ἐπ᾿ Εὐκλείδου ἐτέθησαν καὶ εἰσὶν ἀναγεγραμμένοι, κυίους εἶναι. τοὺς δὲ μετ᾿ Εὐκλείδην τεθέντας καὶ τὸ λοιπὸν τιθεμένους κυρίους εἶναι ἀπὸ τῆς ἡμέρας ἧς ἕκαστος ἐτέθη, πλὴν εἴ τωι προσγέγραπται χρόνος ὅντινα δεῖ ἄρχειν. ἐπιγράψαι δὲ τοῖς μὲν νῦν κειμένοις τὸν γραμματέα τῆς βουλῆς τριάκοντα ἡμερῶν· τὸ δὲ λοιπόν, ὃς ἂν τυγχάνηι γραμματεύων, προσγραφέτω παραχρῆμα τὸν νόμον κύριον εἶναι ἀπὸ τῆς ἡμέρας ἐτέθη.

⁷⁷ Or literally, ‘a time at which (the law) must begin’.

⁷⁸ For authenticity of laws in Dem. 24, cf. MacDowell, ‘Lawmaking’ (n.1) 62. See also Hansen, M.H., ‘Diokles' law (Dem. 24.4) and the revision of the Athenian corpus of laws in the archonship of Eukleides’, C&M 41 (1990) 63–71Google Scholar.

⁷⁹ In addition to the drafting of new, supplementary laws, the first nomothetai were surely meant to restore laws deleted by the Thirty (as Lene Rubinstein reminded me); cf. schol. Aeschines 1.39. This duty was perhaps implicit in Teisamenus' preamble. But such measures would not be included in Diocles' second category: the laws restored would be those authorizing the democratic institutions, the workings of the courts and the like. For these measures the limit from Eucleides has no relevance.

⁸⁰ Agreeing with Robertson on Teisamenus' protocol (though doubtful on other points), cf. Rhodes, P.J., ‘The Athenian code of laws, 410-399 B.C.’, JHS 111 (1991) 99CrossRefGoogle Scholar.

⁸¹ An old solution whose time has come, proposed by J. Droysen, De Demophanti Patroclidis Tisameni populiscitis quae inserta sunt Andocidis orationi περὶ μυστηρίων (1873). His other theses were less promising, but he was followed in regard to Teisamenus' decree by Schreiner (n.3) 94-5. Droysen's solution was roundly rejected by Drerup, E., ‘Über den bei den attischen Rednern eingelegten Urkunden’, Jahrbücher für classische Philologie Suppl. 24 (1898) 232Google Scholar.

⁸² Robertson, ‘Laws of Athens’ (n.1) 60, supposes that the Twenty were ‘very likely’ the same officers as the nomothetai, relying on schol. Aeschin. 1.39. But Andocides' account gives a plausible implication which Teisamenus tends to confirm: the first nomothetai were nominated by the council, and that democratic council was chosen by lot after the Twenty took control.

⁸³ In the later fourth century BC the Athenians rein-scribed certain historic decrees as patriotic monuments; probably at the turn of the third century (or later), Craterus set to work, largely relying on extant inscriptions. See esp. Robertson, Noel, ‘False documents at Athens’, Historical Reflections 3 (1976) 3–24Google Scholar; Habicht, C., ‘Falsche Urkunden zur Geschichte Athens’, Hermes 89 (1961) 1–35Google Scholar (esp. 28, on Craterus). Cf. Thomas, Oral Tradition (n.10) 90-1.

⁸⁴ As argued above at n.67.

⁸⁵ Covenant as foundation of Law: e.g. Isoc. 18.27-34; Arist. Pol. 1280b; Rhet. 1376b; and perhaps most famously in Plato, Rep. 359a. See, for now, Ober, J., The Athenian Revolution (Princeton 1996) 161–87Google Scholar, esp. 185, suggesting that the settlement of 403 approximated John Rawls' ‘original position’ (A Theory of Justice, Cambridge, MA 1971Google Scholar).