The Law of Athens, Volume 1: Family and Property

THE

LAW OF ATHENS The Family and Property

tJ T"" VJA'~

OXFORD AT THE

CLARENDON 1968

PRESS

GLASGOW

NEW

YORK

CAPE TOW:-r

SALISBURY

BOMBAY

CALCUTTA KUALA

TORONTO mADAX MADRAS

LUMPCR

MELBOL'R:-,'E

NAIROBI KARACHI

HONG

KONG

WELLINGTON

LUSAKA LAHORE TOKYO

ADDIS ABABA DACCA

THIS volume aims at providing a systematic account of the law of Athens concerning the family and concerning property. It will be followed by a second volume dealing with the law of obligations and of procedure. The scope of the inquiry is deliberately restricted to Athens during the period of the orators. Though much may have been gained for the Roman and the comparative lawyer by the wide horizons, spatial and temporal, over which many recent writers on Greek law have cast their gaze, much has been lost for those who are more concerned to get a keenly focused picture of the law of the one Greek city state for which, at this one period of its history, a considerable mass of detailed evidence is available than to reconstruct a somewhat hypothetical system of 'Greek' law. It has been a mistake to think that a study of the papyri could contribute much to the elucidation of Athenian law of the fourth century, though it may be that rules well-authenticated for that law can help to elucidate rules which seem to be operative in the papyri. This is strikingly illustrated by F. Pringsheim's learned work, The Greek Law of Sale (Weimar, 1950). Useful as that book must be for those whose primary interest is the law of the Roman empire, and valuable as are many of the discussions of individual problems proper to classical Athenian law, it presents to the student of this latter law a frustratingly blurred and indeterminate picture. Any work in this field must owe much to the two most recent comprehensive treatises on the law of Athens, those of Beauchet and of Lipsius. Each of them raises important issues of principle as to the proper selection and disposition of material. The most important issue raised by Beauchet is his restriction of his subject to private law. He explains briefly what he understands by this on pp. xlviii ff. of his preface. It leads him to eXclude in principle such topics as the rules concerning the acquisition and loss of citizenship, everything relating to

viii

PREFACE

criminal law (he does not, incidentally, define criminal law), including topics which have a clear connexion with private law, such as penal actions designed to protect property or the facts giving rise to delictual obligations, and in general procedural law, which governed the sanctions for the rules of private law which are his primary concern. This programme has serious defects, and indeed Beauchet by no means adhered to it. Of course the legal historian must carve up his subject in order to make a meal of it, and all such dismemberments are bound to have an element of the arbitrary in them. But it is doubtful whether for Athenian law the division into private and other law is fruitful. It may not perhaps be conclusive against it that a contemporary Athenian would probably not have seen the significance of it; but its inadequacy is amply proved by Beauchet's own failure to follow it out systematically. Thus he devotes about sixty pages to the so-called civil actions protecting property, among them seventeen to the OlKYJ EgoVAYJS, which by a rather face-saving understatement he admits to have had 'in certain respects' the character of a penal action. In truth it is impossible to arrive at any idea of what in Athenian law corresponded to our own concept of property without a full discussion of the remedies. Again Beauchet has about forty pages on the actions concerned with guardianship, actions which were for the most part markedly penal in character, but an understanding of which is indispensable for the understanding of the institution as a whole. As a principle of exclusion therefore the concept of private law does not work, and I have disregarded it. Another, and even more questionable, principle followed, albeit tacitly, by Beauchet is to fill out gaps in the structure due to lack of direct evidence by drawing not only on rules ascertainable for other contemporary or roughly contemporary Greek states but on the rules of Roman law. I have attempted to be much more strict in this respect. Methodologically Lipsius's book stands at the opposite extreme to Beauchet's. It is in form an account of Athenian legal procedure-naturally, since it grew out of Meier and Schomann's Der attische Process though in practice it includes discussion of the rules of substantive law which the procedural law was designed to protect. Thus it is more embracing than

PREFACE

Beauchet's book. Its three books deal with (I) the machine.ry for the administration of justice, (II) the various legal remedIes open to litigants, (III) the course of procedure (Prozessgang). Even here there is something left out, namely what we sho,:I1d now call the rules of constitutional law (exceJ:lt those .w~l1~h were concerned with the administration of justIce). T~IS.IS m accordance with modern conceptions, though here too It ISnot entirely clear what the exclusion would have ~eant to. an Athenian. Almost certainly the 'laws' dealing wIth constitutional matters would not have been neatly segregated in ~he Athenian code. However that may be, this degree of exclUSIOn seems more defensible than Beauchet's. What is more open to criticism is Lipsius's principle of arrangement of his mater~al. Briefly this is to stick closely throughout to procedural remedIes. Thus his second book subsumes the substantive rules under the various actions. These are segregated first into ypaepal and olKat, and within these two categories the actions are grouped ~m~er the magistrates responsible for each. This method has ItS mconveniences. In particular the treatment of ypaepal and OlKat in two separate sections instead of bringing togethe~ ypaepal. and SlKat which dealt with the same subject-matter IS sometimes confusing. .' The method followed in the present works IS a comprom.Ise between those of Beauchet and Lipsius. I have started wIth a dichotomy between procedural and substantive law. ~his is not absolute, and in some topics-the law of property IS the most striking example-the two threads are inextricabl~ interwoven. Nevertheless there is a large body of rules whIch are simply procedural. The discussion of these is reserved for a succeeding volume. In treating of the substantive law I follow the plan of Be~uchet, adhering to his threefold division into the law of the famIly, the law of property, and the law of obligations (this last reserved for the succeeding volume), save that I take the law of succession under the law of the family rather than under the law of property. In referring to the orators I give the name of the orator, the number of the speech, the short title of the speech, and the number of the section, in that order. In citations I make no distinction between genuine and spurious speeches, though

x

PREFACE

occasionally I call attention to the distinction where it affects the value of the citation as evidence. My debts are too numerous for individual acknowledgement, but I must make specific mention of my colleagues in the subfaculty of ancient history at Oxford, to my own college, Merton, and its former Warden, John Miles, to Miss E. A. Livingstone, who compiled the index of sources, and to the staff of the Clarendon Press.

I. MARRIAGE § I. Introduction

§2. §3.

€YYV7J €1nOtKaa{a

§4. Less formal unions §5. Polygamy §6. Forms §7. Legal bars to marriage §8. €1nyafl,{a §g. Relations between husband and wife (i) Kvpuda (ii) Marital fidelity (iii) Offences allied to adultery

§10. Dissolution of marriage (i) By death or statutory regulation (ii) Dissolution at the instance of either or both spouses (iii) Children of parents whose marriage was dissolved

38 39 44

§ 1 I. Dowry (i) Introduction

45

(ii) Bestowal of dowry

48

(iii) Dowry during marriage

52

(iv) Dowry after dissolution of marriage

55

(v) O{K7J 1TpOtK6" O{K7J a{Tov

57

II. CHILDREN

(iii) Form

§5. Entry

§ I. v68o' §2. Legitimation

(i) Immediate

§3. Parental authority

(ii) ETnS'Kaula

§4. Rights of children VI. SLAVERY

§I. Introduction §2. Origin of status §3. Legal status (i) Vis-Ii-vis the state (ii) Vis-Ii-vis masters (iii) Vis-Ii-vis third parties §4. Public slaves §5. Actions

III. ADOPTION § I. Introduction §2. Qualifications for adopter and adoptee §3. Procedure §4. Effects IV. GUARDIANSHIP

§I. Introduction §2. Males

VII.

(i) Appointment (ii) Functions of guardians §3. Females

§3. Characteristics

(i) Introduction (ii) Appointment

VIII.

(iii) Functions of guardians

of status

METICS

§I. Terminology

§4. Actions (i)

FREEDMEN

§I. Introduction §2. Origin of status

§2. Characteristics

cpom,

(ii) €luayy€Ala

of status

PART

(iii) SlKTJ ETnTp07Tij, and SlKTJ UlTOV

I. OWNERSHIP

II· LAW

AND

OF

PROPERTY

POSSESSION

§ I. Introduction V. SUCCESSION §r. Introduction §2. The estate §3· Intestate succession: order of succession (i) Sons (ii) Heiresses

§2. Ownership 122

§3. Possession

124 II.

PROCEDURAL

PROTECTION

130

§ I. Introduction

206

132

206 20

210

(iii) Ascendants

138

§2. Movables: d7Taywy~, ECP~YTJUl, §3· SlKTJ d, E/Lcpavwv KaTCLuTauw

(iv) Collaterals

143

§4. Formal seizure, warranty,

§4· Wills (i) Introduction (ii) Capacity

summons

§5. S,aS'Kaula 149 151

§6. SlKTJ Ego15ATJ', SlKTJ Ega,ptU€w, §7. SlKa, ovula" Kap7TofJ, EVO'Klov

7

214 217

222

CONTENTS

~v

III.

KINDS

OF

THING

§ 1. Land and chattels

228

§2. Visible and invisible

§3. Productive and unproductive §4·Ancestral and acquired §5. Public, sacred IV. CAPACITY V. JOINT VI.

OWN

233 234

236

OWNERSHIP

MODES

VII.

TO

230 232

Anzeiger der Akademie der Wissenschaften. historische Klasse (Vienna).

OF ACQUISITION

EASEMENTS

VIII.

REAL

SECURITIES

§ I. Introduction

253

§2. Types

258

§3. Pledge §4. Hypothec §5. Sale with right of redemption

§6. Rules in pledge, hypothec, and sale with right of redemption

AEG

Annuaire des etudes grecques.

AG

Archivio giuridico.

AHDO

Archives d' histoire du Droit oriental.

AJA

American Journal of Archaeology.

AJP

American Journal of Philology.

An. Bekk.

A. E. Bekker, Anecdota Graeca (Berlin, 1814-21).

260

AP

Archiv fiir Papyrusforschung und verwandte Gebiete.

262

ATL

B. D. Meritt, H. T. Wade-Gery, M. F. McGregor, The Athenian Tribute Lists (Princeton: i, 1939; ii, 1949; iii, 1950). L. Beauchet, L' Histoire du Droit prive de la Republique atMnienne (Paris, 1897).

271 280

§7· o:rror{ftYJfta (i) Pupillary

W. G. Becker, 'Platons Gesetze und das griechische Familienrecht' (Miinchener Beitriige zur Papyrusforschung und antiken Rechtsgeschichte, 1932).

(ii) Dotal (iii) MiscelIaneous

§8. Security in maritime loans

APPENDIX

A.

judicial

APPENDIX

B.

S{KYj

APPENDIX

c. Egaywy~

APPENDIX

D.

BIDR

Bullettino dell'Istituto di Diritto Romano.

Boeckh, Staatsh.

A. Boeckh, Die Staatshaushaltung Auflage, Berlin, 1886).

dissolution of marriage of E1T{KAYJPOS

der Athener

(3.

R. j. Bonner (with G. Smith), The Administration of Justice from Homer to Aristotle (Chicago: i, 1930; ii, 1938).

EgOVAYJS

Mineral rights

Philosophisch-

BPW

Berliner Philologische Wochenschrift.

Bruck, Schenkung

E. F. Bruck, 'Die Schenkung auf den Todesfall im griechischen Recht' (Studien zur Erliiuterung d. biirgerlichen Rechts, Hft. 3 I, Breslau, 1909). Berichte der Siichsischen Gesellschaft der Wissenschaften. Philologisch-historische Klasse. G. Busolt (with H. Swoboda), Griechische Staatskunde (MuelIer, Handbuch der klassischen Altertumswissenschaft, 4. Abt., 1. Teil, 1. Bd., Munchen, 1920, 1926).

attischem Rechte. II, Polygamie und Pellikat nach griechischem Rechte (Erlangen, Leipzig, 1892, 1894).

E. Caillemer, Le Droit de succession legitime d Athenes (Paris, 1879).

R. Dareste (with B. Haussoulier and T. Reinach), Recueil des inscriptionsjuridiques grecques(Paris, 189 I).

R. Dareste, Plaidoyers civils de Demosthene, traduit en frallfais avec arguments et notes, 2 vols. (Paris, 1879).

J. W. Jones, The Law and Legal Theory of the Greeks (Oxford, 1956).

E. Demisch, Die Schuldenerbfolge im attischen Recht (Borna-Leipzig, 1910). C. V. Daremberg (with E. Saglio), Dictionnaire des Antiquites (Paris, 1877-1919).

Journal qf Near Eastern Studies.

JNES

U.

W. Erdmann, 'Die Ehe im alten Griechenland' (Munchener Beitriige zur Papyruiforschung und antiken Rechtsgeschichte, 1934).

Kahrstedt, Untersuchungen zur Athen (Stuttgart, Berlin, 1936).

U.

Kahrstedt, Staatsgebiet und Staatsangehiirige In Athen (Stuttgart, Berlin, 1934)'

F. Jacoby, Die Fragmente der griechischen Historiker (Berlin, Leiden, 1923 onwards).

M.

C. Muller, Fragmenta Historicorum Graecorllm (Paris, 1841-70). J. V. A. Fine, 'Horoi: studies in mortgage, real security and land tenure in ancient Athens' (Hesperia, Suppl. 9, Baltimore, 1951). M. 1. Finley, Studies in Land and Credit in Ancient Athens 500-200 B.C. The Horos Inscriptions (New Brunswick, 1951). L. Gernet, Demosthene, plaidoyers civils, 4 vols. (Paris, 1954, 1957, 1959, 1960). L. Gernet, Droit et Societe dans la Grece ancienne (Paris, 1955)· L. Gernet (with M. Bizos), Lysias, discours I-XV, XVI-XXXVetfragments (Paris, 1924, 1926).

Kahrstedt, Mag.

Kranzlein, Bes.

Lauffer, sklaven

Eig.

Bergwerks-

Ledl, Stud.

Gottingische Gelehrte Anzeigen.

Glotz, Solidarite

G. Glotz, La Solidarite de la famille criminel en Grece (Paris, 1904).

m

'Der

altgriechische Eigentumschutz' (Z 64, 1944, 134-2°5)' A. Kriinzlein, Eigentum und Besitz im griechischen Recht des funften llnd vierten Jahrhunderts v. Chr. (Berlin, 1963)' Kritische Vierteljahrschrift fur Gesetzgebung und Rechtswissenschaft. S. Lauffer, Die Bergwerkssklaven von Laureion, Teil i, ii (Wiesbaden, 1956, 1957)· A. Ledl, 'Studien zum attischen Epiklerenrechte', I, II (Jahresbericht I. Staatsgymnasium, Graz, 19°7, 1908). G. A. Leist, Der attische Eigentumsstreit im System der Diadikasien (J ena, 1886). J. H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig, 19°5-15). D. M. MacDowell, Athenian Homicide Law in the Age qfthe Orators (Manchester, 1963).

L. Gernet, Platon. tEuvres completes, tome XI. Les Lois (Paris, 1951). GGA

und

Kaser,

Magistratur

dans Ie droit

L. Mitteis, Reichsrecht und Volksrecht in den ostlichen Provinzen des romischen Kaiserreichs (Leipzig, 1891).

P. Guiraud, La Propriite fonciere en Grecejusqu'd la conquete romaine (Paris, 1893).

G. R. Morrow, 'Plato's law of slavery in its relation to Greek law' (Illinois Studies in Language and Literature 25, 3, 1939)'

C. Hignett, A History qf the Athenian Constitution (Oxford, 1952).

M. H. E. Meier (with G. F. Schomann, neu bearbeitet von J. H. Lipsius), Der attische Process

E. Hafter, Die Erbtochter nach attischem Recht (Leipzig, 1887). H. F. Hitzig, Das griechische Pfandrecht (Munchen, 1895). E. Hruza, Beitriige zur Geschichte des griechischen und romischen Familienrechtes. I, Die Ehebegrundung nach

(Berlin, 1883)'

NJ

Neue Jahrbiicher fur klassische Philologie (Leipzig).

Paoli, St. Dir.

U. E. Paoli, Studi di diritto attico (Firenze, 193°)'

Paoli, St. Proc.

U. E. Paoli. Studi suI processo attico (Padova, 1933).

D. P. Pappoulias, 'H ij1.7Tpayj1.aTO' dug,aA€ta KaTa TO iAA7)YtKOV Kat TO pWj1.a"iKOY 8{KaWY (Leipzig, 1909). ]. Partsch, Griechisches Biirgschaftsrecht (Leipzig, 1909). F. Pringsheim, The Greek Law of Sale (Weimar, 1950).

Weiss, GP

E. Weiss, GriechischesPrivatrecht auf rechtsvergleichender Grundlage (Leipzig, 1923).

Weiss, Pfand.

E.

Weiss, Pfandrechtliche (Weimar, 1909)'

Untersuchungen, Bd.

Wilamowitz, A. und A. U. von Wilamowitz-Moellendorf, Athen (Berlin, 1893). Wolff, Beitr.

Realenzyklopaedie von Pauly- Wissowa-Kroll-Mittelhaus.

Aristoteles und

H. ]. Wolff, Beitriige zur Rechtsgeschichte Altgriechenlands und des hellenistisch-romischenifgypten (Weimar, 1961).

REG

Revue des Etudes grecques.

WS

Wiener Studien.

RHD

Revue historique de droit franyais et etranger.

Wyse,Isai.

W. Wyse, The Speeches of Isaeus (Cambridge,

Revue internationale des Draits de I' Antiquiti.

Z

Zeitschrift der Savigny-Stiftung (Romanistische Abteilung).

RIDA RM

Rheinisches Museumfiir Philologie.

RP

Revue de Philologie.

Schodorf, Beitriige

K.

Schomann, Isai.

G. F. Schomann, Isaei orationesxi (Greifswald, 1831).

Schulin, Gr. Test.

F. Schulin, Das griechische Testament verglichen mit dem romischen (Basel, 1882). O.

Schodorf, Beitriige zur genaueren Kenntnis der attischen Gerichtssprache aus den 10 Rednem (Wilrzburg, 1904).

Schulthess, Vormundschaft nach attischem Recht (Freiburg, 1886).

F. Schulz, Classical Roman Law (Oxford, 1951).

Schulz, CRL SDHI

Studia et Documenta Historiae et Iuris.

SEG

Supplementum Epigraphicum Graecum.

SIFC

Studi italiani di filologia classica.

SIG

W. Dittenberger, Sylloge Inscriptionum Graecarum (3rd ed., Leipzig, 1915). Sitzungsberichte der Bayerischen Akademie der Wissenschaften. Philosophisch-philologische und his torische Klasse. Transactions of the American Philological Association. T. Thalheim, Lehrbuch den griechischen Rechtsalterthiimem II 1 (Leipzig, 1895). M. N. Tod, Greek Historical Inscriptions (Oxford: i, 1946; ii, 1948). Tijdschrift voor Rechtsgeschiedenis. P. Vinogradoff, Outlines of Historical Jurisprudence. II, The Jurisprudence of the Greek City (Oxford, 1920-2).

TAPA Thalheim,

RA

TR Vinogradoff,

HJ

H. T. Wade-Gery, 1958).

Essays in Greek History (Oxford,

i

fiir

1904).

Rechtsgeschichte

A. ALBERTONI, L'apokeryxis: contributo alla storia dellafamiglia C. K.].

BUNSEN,De iure hereditario Atheniensium

E. CAILLEMER, 'Le droit de tester --,

a Athenes'

(Bologna, 1923).

(Gottingen, 1813). (AEG 4, 1870, 19 ff.).

La Prescription d Athenes (Etudes sur les antiquitts juridiques d'Athenes 7, Paris, 1869).

A. CALDERINI, La manomissione e la condizione dei liberti in Grecia (Milan, 1908). M. CLERC,Les Meteques athlfniens (Paris, 1893). A. H. G. P. van den Es, De iurefamiliarum apud Athenienses libri tres (Leiden, 1864). G. Foucart, De libertorum conditione apud Athenienses (Paris, 1896). L. Gernet, Recherches sur Ie developpement de la pensee juridique et morale en Grece (Paris, 1917). ]. Korver, De Terminologie van het Creditwesen in het Griekschk (Amsterdam, 1934)· H. Meyer-Laurin, Gesetz und Billigkeit im attischen Prozess (Weimar, 1965). U. E. Paoli, 'L'aYXLuTda nel diritto successorio attico' (SDHI I, 1936, 92 ff.). --, 'L'E7T{K),:YJPOSattica nella paIIiata Romana' (Atene e Roma 45, 1943, 19 ff.). --, 'La legittima aferesi delIa E7T{KATjPOSnel diritto attico' (Studi e Testi 125, 1946,529 ff.). --, Comici latini e diritto attico (Milan, 1962). E. Platner, Der Process und die Klagen bei den Attikern (Darmstadt, 1824-5). E. Pringsheim, Der Kaufmitfremdem Geld (Leipzig, 1916). E. Rabel, 'Elterliche Teilung' (Festschrift zur 1:9. Versammlung deutschen Philologen in Basel 1907, 528 ff.). --, Die Verfilgungsbeschriinkungen des Verpfiinders (Leipzig, 1909). P. Roussel, !see, discours (Paris, 1922). V. Thumser, "EyyVTjULS, yafLTjAta, E7TL8LKau{a' (Serta Harteliana, Vienna, 1896, 189 ff.). H. A. Wallon, Histoire de I'Esclavage dans I'Antiquitl! (2nd ed., Paris, 1879). W. L. Westermann, dephia, 1955).

The Slave Systems of Greek and Roman Antiquity

(Phila-

§ I. Introduction

IN very general terms we can say that marriage was essential for the preservation of the 'houses' or olKoL which were the constituent elements of the Athenian city state or for the formation of new 'houses'. 1 Unfortunately, when we come to examine the details of the institution, we find many unresolved doubts as to some of its most important features. The first and most serious difficulty is to determine what constituted a valid marriage. We are confronted at once with a semantic problem. For there is no single Greek word which can be taken to stand for 'marriage'. Nor are there words which normally stand for 'husband' and 'wife' ; where this relationship has to be described the usual words are dVr)p and Yl!vr), the latter sometimes with a qualifying epithet.z We have first then to examine the principal terms used in connexion with the institution. The two most important words are EYYVy) and yafLo, and their I Besidesthe exhaustive treatments in Beauchet i. 32-535 and Lipsius, AR 46888, the Athenian law of marriage has been minutely studied by W. G. Becker in 'Platons Gesetze und das griechische Familienrecht' and \V. Erdmann in 'Die Ehe im alten Griechenland', each with a full bibliography. Cf. also Bu. Sw. 239 f. Since then the most important studies have been H. J. Wolff, 'Marriage Laws and Family Organisation in Ancient Athens', Traditio 2 (1944), 43 ff., id., 'Grundlagen des gr. Eherechts', TR 20 (1952), 1 ff., id., RE S.v. 7Tpoig (1957), O. Schulthess, RE S.V.ep€PV~ (1938). For the significance of the O[KO, in the city state and the importance attached to its continuance see below, pp. 92, 123. 2 For oa/Lap, obsolete in prose in the classical period, see L. Gernet, Ann. fnst. Phil. Hist. Or. Slav. 5 (1937), 393.

8251n

B

derivatives. €yyviiv seems etymologically to mean 'to put into the hand'. It is the word used for giving a pledge. When used in the context of marriage the bride's father €yyvif, TWL T~V BvyuTEpa, the bridegroom Eyyvii-raL TLva, and the bride is either EYYVWfl-EVYJ or €yYVYJT~. The EYYVYJ, or as it is called in only one passage in the classical authors the EYYVYJULS, is then a transaction between the bride's father and the bridegroom of which the bride is the object, and we may guess that in its earliest form the transaction involved a putting of something into the hand. I Tafl-0S as a word had the basic sense of 'pairing' and was used of the physically consummated marriage. The active verb yafl-€LV is normally used of the man in a fully solemnized union, as opposed, for instance, to what is called an adulterous union, fl-0LXEVELV. So a 'married' woman is sometimes called yafl-€T~ as opposed to a 'concubine', 7Ta,\AaK~.2 'EKoLoovaL is used of the father who gives his daughter in marriage, the act is EKOOULS, and the daughter so given is EKOOTOS.3 Finally, the word UVVOLK€LV is used of the factual cohabitation of a man and woman, and there is one passage in the Demosthenic corpus which suggests that it became the accepted term for living together in a legitimate union, though there is some doubt as to how much weight should be put on this particular passage.4 , Dem. 41 Spoud. 6 ~yyva /1.0, IIoAvEUKTo, T~V BvyaT€p' £7T' T€TTapUKovTa fLvaL" Isai. 3 Pyrrh. 70 " dO€A,p,OOV, "wilv ~yYViiTO T~V fLTIT€pa T~V TavT1J' KaTa < TOU,) vOfLOUS €gELV yuvaLKa, id. 8 Kir. 19 of-Loaas Kurd. Tavs VOf-LOVS -revs KEI-fJ'€VOUS ?j fL~V €g aUTfjs Kat. €YYU7JTfjS yvvaLKos elua:yELv, ibid. 29 BvyuT€pa . . . ois €KooBELuav, OlS ds 0IJ.07TO:TWP 1j 7Ta.7T7TOS 0 '"pas 7Ta-rpos, €K TaVT1]S' £[vat. 7TaLous YIITJaLous. cr. Dem. 44 Leoch. 49, Hyper. 5 Athenog. 16, Lips., AR 471, n. 9. 3 See, for example, II. I I. 243 ff., 16. 19°,22.472, Od. I I. 117, 282, where the Eliva seem to represent a purchase price: so Erdmann, Ehe 204 ff.; but E. Hruza, Ehebegrundung 10 ff., regards the illiva not as a purchase price, but as a kind of doueeurs to secure the goodwill of the bride's father. Cf. also Ar., Pol. 1268b Taus yap apXalous VO!-'OVS "Atav C17TAOVS €lvat Ka~ f3ap{3apLKOVS. €UL3T}poepopoDvTO T€ yap ol"EAAYJV€S Ka, TaS yvvalKas EwvaiivTo 1fap' d>'>'~>'wv. For a wholly different view see M. I. ~inley, Seminar 12 (1954),7 ff.: at marriage there is an exchange of gifts and illiva IS sometimes used of the gift of the bride's father to the groom; nothing suggests sale.

6

PART

I . LAW

OF

THE

FAMILY

which sealed the agreement. When we come to consider what this procedure purported in the classical period we are met with an unresolved controversy. To some scholars it has seemed to be nothing more than a betrothal of the bride by her father to the bridegroom, a necessary step towards a full marriage, but certainly not constituting a marriage in and by itself. For this there was needed the consummation, yu/.ws, which converted an EYYVY}T~ into a yafLET~ or EKOEoofLEVY}. The principal support for this view is the action of Demosthenes' father with regard to his wife and daughter. While still alive he 'contracts' (EyyVq.) his wife to Aphobos and his daughter to Demophon, but clearly his wife could not actually marry Aphobos till he himself was dead, nor did she immediately after his death, and Demosthenes tells us that Demophon, though he was to receive two talents as dowry at once, was not to receive the daughter till she reached maturity in ten years' time.1 These two excellently attested cases seem conclusive against the alternative view, which would see in the EYYV7J marriage itself and not merely betrothal. It is in vain that Erdmann, Ehe 233, quotes passages from the orators where EyyVB.V and EKoLoovaL, occurring in close conjunction, describe, in his words, 'two phases of the same act'. It goes without saying that often, perhaps normally, EYYV7J and the completion of the marriage, whether we call it YUfLoS or EKOOULS, were virtually simultaneous acts between which there was no particular reason to distinguish. But this would in no way dispose of the argument, based on the action of Demosthenes' father, that the acts were in principle distinct.2 But it is one thing to recognize a distinction between EYYV7J and completed marriage and quite another to determine what the legal significance of this distinction was. In the first place it is surprising that we find no evidence for any legal action to en~orce upon either party the carrying out of the EYYV7J, though mdeed it might be equally surprising if there had been such an

action in view of the extreme ease with which a marriage could be dissolved by either party.1 Nor is it easy to define the further step which was needed to convert EYYV7J into full marriage. In fact Lipsius, one of the main proponents of this view, admits that no further legal act was needed. Presumably we are to suppose that it was the factual living together of the pair as man and wife which produced the required change, YUfLoS being simply copula carnalis. Certainly the yafL7JALa, whatever its precise nature, was not a legal act required to make a marriage valid.2 There are two directions in which we might look for legal changes effected by an EYYV7J before it has become a full marriage. It might affect the tutelage of the girl who was the object of the transaction. It is virtually certain, as we shall find later, that on the completion of a marriage she passed from the tutelage of her father-to assume for the moment that he was still alive-to the tutelage of her husband. What was the position when there was an interval of time between EYYV7J and Yd-fLOS? All that we have to go upon is the case of Demosthenes' mother and sister already mentioned. His father's disposal of their hands in marriage, although it took place inter vivos, was mortis causa and thus also incorporated in a testament, OLae~K7J' We need not therefore consider the position of the women during his lifetime, since it could be held that even the EYYV7J did not become operative until his death. As soon as he died Aphobos should have married his wife, but in fact he did not. And Demophon could not marry his I In Roman comedy the seducer of a girl could be forced to marry her, but it is hard to say whether this represents Athenian law. See p. 19, n. 2, below. 2 Lips., AR 469, Weiss, GP 222. For the yaJ1-TJ>.la: Dem. 57 Eubul. 43 KaA" ... TWV rppaT€pWV Taus OlKdous, als T~V yap:TJAlav €la~V€YK€V inTEp rijs /.LTlTpOS 0 7TaT~p, Isai. 3 Pyrrh. 76 o,)n yaJ1-TJA{av ,1a~v'YK'v " 0"0, ~J1-WVO,)T' T~V OvyaT<pa, ijv q,aa' YVf]alav aUTOV Elvat OOTOl" ElaayaY€LV (Is TOVS ePpaT€pas ~gtwafi, id. 8 Kir. 18 OT€ yap

o

TraT~p

KaTa

EeP€U£L Kat'

EAap..{3avE, yajLOUS

EV

€luTtaU€

EKdvwv VOJ1-0V', Harpokr. IaaLOS

Kat -dt8uj1.os



Elvat yaJ1-TJAlav T~V TO', q,paTopa,v p,OU,

IDem. 28 Aphob. ii. 15 f., 29 Aphob. iii. 43. 2 These are the passages: Isai. 3 PYTTh. 70 on 0< ~yyva Ka, Et,O{oov " •EvoLD, T~V yuvafKa, €7rerpe-rrETE VJ.L€LS ot 8ELO' T~V TOU &.O€A¢nSoiJ TOU VJ.LET€POV aVTwv WS ig £'Tatpas ovaav €KE{Vcp €yyviiaOat, id. 8 Kir. 14 -rtvas 8' (lolvac, Ta 7TEPL T~V EKOOUI,V TijS Ji.'lJTpOS avuYK7'); TOUS €yyu1]uap.EVOUS Kat Taus €KEtVDLS 7Tup6v-ras aTE ~YYUWVTO. Erdmann also cites Dem. 59 NeaiT. 52, 53, id. 57 Eubul. 41. The phrase in Isai. 8 KiT. 29, OvyaT<pa 01, EKooO"aav, 0', EyyvTJO"aav, a passage which he also refers to seems to tell strongly against him. '

aUT~v

TOU,

n ouoEv

TOWVTOV yEypa1TTaL,

S.V.

...

TOLS

T€

ePpaTEpUL yap..1JAtav

€la~v€YKE

yaJ1-TJA{a' LlTJJ1-0aO'avT' €VOV, ilOWK€V ilX€LV we must take €VOV, with ovo Ta>'avTa alone. On this case see Bruck, Schenkung 99 ff., 122 ff., Gernet, Dem. i. 28. It is interesting to speculate whether in principle it would have been open to Demophon, without dissolving the .A' ilypa.p€ o'[(Ipp~]OTJv 'TJPOtsee below, p. 132, n. 2. The general rule is put succinctly in Dem. 46 Steph. ii. 22 'TOV v6JLoV ... os KE>'''JEt E"'OtKaULav .evat 'TWV £7TLK>"~PWV cl7raawv, KUI. gEVWV Kat, aUTWV, Kal. 7TEpL p..€V TWV 1TOALTWV 'TOV apXOVTU

£laayELv

Kat

E7TLJ.L€AEtaOaL, 7TEPi.

Of

TWV

J.L€ToLKWV TOV 7To'Aip.apxov,

Kat aV€1TloLKOV J.L~

EtErVat 'XEtV JL~'TE KMjpov JL~'TE El'LK>'TJpOV. NOMOI:. K>'7}poOv O€ 'TOV apxovTa K>'~PWV Kai. €1TLI(A~PWV, aaoL Elat fLfjVE~, 7T)..~V TOO UKLpO¢OptWVDS. aV€7TloLKOV De KA:ijpov p.~ EXELV. 2 Dem. 46 Steph. ii. 23 aV'T6v ... >'axEfv 'OEt 'T7js E"'K>'~POV E''TE Ka'Ta 06utv aV'T0 l'pOU7jKEV EL'TE Ka'Ta yivos. Isai. 3 Pyrrh. 30, 4 Nikostr. 2, for the fact that >'7jttS was in writing. Paoli, Studi e Testi 125 (1946) 529, suggests that if she was already married her husband was required to notify the archon of her becoming an El'LK>'TJpOS: he argues from Pollux 8. 53 JTJJLouINv7}s EV 'T0 Ka'Ta Mioov'TOS Kat Ka'Ta 'TWV JL~ l'POU7}K6v'TWV (codd: l'POU7}K6v'TWS Meier) 'Tfj E"'K>'~P

TJPTJVTa(,Tas €aVTWV

a.o€)..~ovs,

YVvaLKUS.

PART

12

I . LAW

OF

THE

FAMILY

of the latter was at least of the kin, ifnot next of kin, and had been so adjudged by an archon. The husband of the former might be a complete stranger. The state might well have been prepared to uphold the marriage within the kin, but not the other: T?e evidence is far from conclusive, but on the whole seems to JustIfy the view that, where a son had been born, the next of kin could not force the dissolution of the marriage. In this case the property of course remained with the heiress to pass into the hands of the son as soon as he came of age. The wide statement in Isaios (3 Pyrrh. 64) will then have to be narrowed down to cover only those marriages which had produced no male issue.1 It is puzzling that in the law on legitimacy quoted above (p. 5, n. 2) nothing is said of children born of a woman married by €mOLKaata. Probably the lawgiver thought their inclusion too obvious to need special mention. We certainly need not suppose that, in these cases, the archon performed some kind of €yyJ7).2

There is one important feature which is common to the two types of formal union hitherto considered. In both of them the bride is purely passive. In €mOLKaata, subject to the possible provisos mentioned above, the next of kin has an absolute right to her hand, and we find no hint that any revulsion to the match on her part would have influenced the archon or the dikastery in disposing of her. In €yyJ7) the contract was between the groom and the woman's KJpWS. Here she at least had the chance of trying to play on the latter's feelings if she found the proposed match distasteful. But if she failed there seems no doubt that her KJpws could make a valid contract without her consent. See Appendix A. Isai. 6 Philokt. 14 1TpoaijK€ T~V KaAM1T1TT}V ... 1Tavv 1TaAa, aVVO'K€LV, ~ EyyvT}lJ€faav KaTa TOV vO/LOV ~ E1TLS'KaalJ€raaV puts the two formal types of union clearly side by side. See Wyse ad loc., Lips., AR 473, n. 15. F. Bozza, Ann. della R. Univ. di Catania I (1934), 352 fr., Ser. ]ovene (Naples, 1954), 487 fr., argues that EYYVT} as a formal contract of marriage owed its origin to a definite act of legislation, possibly. that of Solon. This would explain why in that law there is no reference to marnage by E1T,S'Kaa{a. That one form of oath to certify the legitimacy of a son was ([va, E~ aaTij, Ka, EyYVT}Tij, yvva'Ko, may spring from the fact that marriage by E1T,S'Kaa{a involved a public procedure which marriage by EYYVT) did not. It was therefore more easily susceptible of proof by later issue of the marriage and there would have been less likelihood of the father's being required to certify the existence of the marriage by oath. Note that the oath prescribed in line 110 of the Demotionid inscription (IC ii2. 1237 = SIC 92 I) is vov €[va, ... y~a~ brought by some third party against a bigamist or polygamist; but nothing of the kind occurs. This argument carries great weight considering the comparative wealth of our information on Athenian litigation. Less convincing are the arguments drawn from supposed cases of actual bigamy at Athens. The details of the story of Mantias, round which Demosthenes' two speeches against Boiotos revolve, cannot be completely unravelled; but there is absolutely nothing which compels us to believe that he I For the full significance of the transfer of the wife to the husband's OtKO, see below, pp. 30 ff. Wolff, Traditio 2 (1944), 43 ff., especially 69 ff. (Beitr. 196 ff.), has elaborated the distinction between what he calls 'solemn' marriage, originated by EYYVTJ or E7TLOLKaaLa, and less-formal unions. The theory comes, in effect, very near to H. Buermann's theory of a 'legitimate' concubinage put forward in N], Supp!. 9 (1877-8), 567 ff., though many of Buermann's arguments are misconceived.

IaUL yap f30vAT)OEVTas )40T)valovs O,a TO A'1TaVOpE or yap,o> required any special formality.3 As an EYYVy) was a contract both parties to it naturally had to be of age, that is, to have reached the end of their seventeenth (or conceivably their eighteenth) year. 4 Once he had reached that age it seems that a man could marry (or for that matter refrain from marrying) without the consent of his father.5 Nor

did the Athenian state, as did some others (notably Sparta), penalize celibacy. It is unlikely that there was at Athens a ypaepi] a:yap,tov.I There is some evidence that an unmarried man who had raped or seduced a girl could in certain circumstances be forced to marry her; possibly the rule was that if he was caught flagrante delicto in the girl's house (and thereby technically a p,OtXo» he could escape the death penalty at the hands of the girl's father by marrying her without dowry provided his own father consented. The evidence, however, is almost entirely from Roman comedy and writers on rhetoric of the Roman period.2 Those who were competent to make the contract on the woman's side are given in the law in Dem. 46 Steph. ii. 18 (p. 5, n. 2, above). They were, in the following order, her father, brother by the same father, paternal grandfather. If none of these were alive she might be technically an E1TtKAy)pOS. In that case, the law says, 'her master is to have her' (TOV KVpWV EXEtv). This must surely mean that the E1TLOLKaata determined who was her KVpW>, but that this KVPW>, unlike all others, could not dispose I

'T~V

(Ila'TaIKos) 'TaV'T7)v YV7)a{wv {7l'a{owv J7l" dpo'T'i' aOl O{OWfl-I. (IloAEfl-wv) Aafl-j3avw. { (Ila'T.) Ka, 7l'pOLKa 'Tp{a 'TaAaV'Ta. (IloA.) Ka, KaAws 'TOOE. Cf. fro 220 K. The bridegroom's intention to produce children from the union was probably considered a normal factor in an JYYV7), though we cannot assume that it was indispensable. Not too much stress should be laid on Isai. 3 Pyrrh. 70 " dOEA

T~V

Tfj TWV

opepavwv

€7TLTP07TEVOfJ-€V'ryv

fL1]TP~ fL~ yuvaLKa

aVVOLK€LV.

fJ-~Te TOV

Demosthenes' father intended that after his death his wife should marry Demosthenes' guardian, 27 Aphob. i. 5. Phormion marries Pasion's widow and becomes guardian of his son, 36 For Phorm. 8. In Isai. 9 Astyph. 27 Theophrastos marries the widow of Euthykrates and seems to be acting as guardian of their son, Astyphilos. In Isai. 6 Philokt. 13 a woman is alleged to have borne two sons to her guardian. The speaker is trying to throw doubt on the parentage of these sons, and if it had been against the law for a guardian to marry his ward he must surely have made the point. Beauch. i. 177 If., Lips., AR 477, Erdmann, Ehe 188. 2 Becker, Plat. 70, Erdmann, Ehe 195. 3 Lips., AR 41 7 If., 473 If., Paoli, St. Dir. 258 If., Becker, Plat. 74, Bu. Sw. 939 If., Erdmann, Ehe 167 If. (bibliography, ibid., n. I). O. Fredershausen, Herm. 47 (19[2),205 If., for the evidence which can be drawn from Roman comedy. €7T{Tp07TOV

fJ-~Te TOV 7Taiaa

aUTO;;

yafJ-eiv.

25

Oloros, a Thracian prince, and Kimon was their son. Themistokles' mother was a Thracian or Carian. The only hint that any of these was not a true marriage is Plutarch's story that Themistokles had, as a bastard (voeos), to exercise in the gymnasium ?f Kynosarges. But, as Themistokles was almost certainly archon III 493/492, it is highly improbable that he was a voeos.1 A change was made in 451/450 when a law, proposed. by Perikles, enacted that only he whose parents were both Athemans should enjoy citizen rights; as Aristotle puts it in Ath. Pol. 26. 4, ", ow '" TO\ 7T1IY] \~eOs TWV ~ 7TOII£TWV, \ ~ n EP£KIIEQVS \ ' H7TOVTOS, " bTL J1VTWOTOV €yvwuuv

p,~

YEYOVWS, or,

p,ETEXHV as

PI ut.

TfjS

7TO'\EWS

()S

av

P er. 37, n.'"vop,OV

p,~

E;

Up,epOLV aUToLV

fJ

./.p,0VOVS ' J1e Y]vuw~s '

EypU",E

TOUS EK DVELVJ1eY]vu{wv YEYOVOTUS. It seems probable that III one sense this law was not, and that in another sense it was, retrospective. Vve can hardly believe that all existing children of mixed marriages were disfranchised by it. To go no further, Kimon was such a one, and he was still a strategos when he died late in 450 or early in 449. On the other hand, it would. seem likely that children of mixed marriages born after the pass~ngof the law would not have been citizens, and that therefore, If one mark of a marriage is that it should guarantee the citizenship of the children the law annulled existing mixed marriages.2 This law was stiIl in force in 414, for in that year Aristophanes (in Birds 1649 ff.) makes Peisthetairos explain that Herakles is excluded from rights of succession as a voeos and he is a voeos because his mother was a foreigner. This must be based on the Athenian law of the time (and indeed the law is attributed by Peisthetairos to Solon). During the next decade, however, partly perhaps because of the manpower problem which led to the rule legitimizing the offspring ofinformal unions (p. 17, above), the law must have fallen into disuse, for in 403/402 a decree was passed

Elvu£

I For Megakles, Hdt. 6. 126; for Miltiades, Hdt. 6. 39, Plut., Kim. 4; for Themistokles, Plut., Them. I, Nepos, Them. I, and Hruza, Beitr. ii. I I I and 120, n. 29, Ledl, WS 30 (1908), 188 If. See further below on VOOOL, pp. 61 If. 2 Or perhaps better 'fundamentally altered their character'. If then; were n.o desire to have more children the marriage could go on. For a full d,SCUSSIOn of thIS law see Appendix X in Hignett, HAC 343 If. He aptly points out that, ';Inless the law was retrospective as regards the children, the motive given by Ans~otle (to Contain the citizen population) must be wrong except on the assumptIOn that Athenian men who would before have married foreign women would now not marry at all. The more probable motive was a desire to pr