Rhodes, P. J. Bastards as Athenian Citizens

8/10/2019 Rhodes, P. J. Bastards as Athenian Citizens.

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Bastards as Athenian CitizensAuthor(s): P. J. RhodesSource: The Classical Quarterly, New Series, Vol. 28, No. 1 (1978), pp. 89-92Published by: Cambridge University Press on behalf of The Classical AssociationStable URL: http://www.jstor.org/stable/638712 .Accessed: 01/06/2014 15:54

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BASTARDS AS ATHENIAN CITIZENS

A. R. W. Harrison in The Law ofAthens, i (O.U.P., 1968), 63-5, argued thatthe exclusion of bastards from the phratries and the severe restriction of theirright of inheritance does not entail their exclusion from Athenian citizenship;and that the form of Pericles' citizenship law, not stating that p~rp6~evot wereto be vd60o, and Solon's law restricting the inheritance rights of vd60o, bothpoint to the conclusion that bastards were not ipso facto debarred fromcitizenship. D. M. MacDowell in CQ N.S. 26 (1976), 88-91, rightly findsHarrison's positive arguments inconclusive, but suggests that three texts providemore definite support for this conclusion.'

(a) Ath. Pol. 42.1: per'XovOuw Vr- 7ro reiac oL l 4pordpwv ye'yov6-readorcv, 77'ypdoov-rat ' eit rokC 6p7yd6racKTrKai6eKa r7 'ye'ov6reC. Nothing issaid here about being born in wedlock, and MacDowell believes that 'in a formaldefinition the silence must be significant'; in the later clause ei... yeyoveKa-rd o v6opovu e sees a reference not to legitimacy but to the legal require-ment quoted above, 64 &plMordpwv eyov6dre &or7cy.2

He is surely right to insistthat that question does not mean 'If he was born in wedlock'; but it is lesscertain that Ath. Pol.'s silence is significant. The remainder of ch. 42 impliesthat all who pass the 6oKqiaaia become 6qr03ot, and are then subjected to two

yearsof national

service, including military trainingof a

hoplite kind;some

have compared Lyc. Leocr. 76, and have felt bound to believe this, but most havethought it more likely that Lycurgus is indulging in rhetorical exaggeration andAth. Pol. is not telling the whole truth, and that the O6reC were exempted fromthe &fnr3eia.3 n 43.2 we read that the boule's year of office (in the fourthcentury coterminous with the archontic year) is divided into ten prytanies, fourof thirty-six days followed by six of thirty-five: whether the year was alwaysthus divided when it comprised 354 days is disputed, and no more need be saidof the dispute here than that it too concerns the extent to which the statementsof A th. Pol. should be accepted as the whole truth; that a year might sometimes

comprise 353 or 355 days may be regarded as trivial; that about three years ineight were intercalary years, comprising (approximately) 384 days, is lesstrivial. I could continue. Ath. Pol.'s silence, even in such a passage as 42.1, is aninsecure basis for argument.

(b) The condemnation of Archeptolemus and Antiphon, ap. [Plut.] X. Or.834 A-B: Kati rqaov lva 'ApXenrr6Jepov ai Avrut2wivra acd vocr6 d6KoTrow,Kai v6Oov Kai yvqliouc. (The last phrase is not found in similar contextselsewhere, and I imagine it is meant seriously, and has been added because oneof the condemned was known to have illegitimate children.) MacDowell trans-lates 'Their descendants are to be disfranchised', and comments, 'This clearlyimplies that illegitimate descendants of Athenians normally have citizenship.'Here everything depends on the meaning of &rqLpov: rcheptolemus and Antiphon

I should like to thank ProfessorMacDowell, Professor M. C. Stokes, andMrs. S. C. Humphries for their comments ondrafts of this reply.

2 Cf. e.g. G. Gilbert, The Constitutional

Antiquities of Sparta and Athens (London:Sonnenschein, 1895), p.191 n.1.

3 e.g. A. W. Gomme, The Population ofAthens in the Fifth and Fourth CenturiesB.C. (Oxford: Blackwell, 1933), p.11.

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90 P. J. RHODES

have been sentenced to death, confiscation of their property, demolition oftheir houses, and exclusion of their mortal remains from all land under Atheniancontrol-and they are to be &rtpot, themselves and their descendants both

illegitimate and legitimate, and any one who adopts any of their descendantswill himself become a&rtocq. n early Athens (it is generally agreed) &rtpitadenoted total outlawry. In the fifth and fourth centuries we commonlyencounter a form of &drApia hich is less drastic than outlawry, and when

outlawry is intended we commonly find a stronger word used, such as roeiptoc:Harrison believed that &tiplia retained its stronger, archaic sense when combinedwith death, confiscation of property, and extension to the whole family,4 butM. H. Hansen argues that when d&rtpia cquired its weaker sense the strongersense must have been abandoned, even in old laws in which the stronger sensehad originally been intended.5 We once find

&rtno

and 7roXdPtoq ombined:

fourth-century orators cited a fifth-century decree which had declaredArthmius of Zelea

&rtapoCai oX~ilpto roO66rpov 70ro AOBrvaiov Kai ct v

ovll/pdXcwv irdk Kai yTvoC, and Demosthenes explained that &rriocwas used

here not in its usual sense of 'excluded from rc3v 'AOvalwov Kotvwv' but withthe meaning 'may be killed with impunity' (Dem. 9. Phil. iii. 42-4).6 If thedecree is authentic, &hanoC as used in its stronger sense, and used of a non-citizen, in the second quarter of the fifth century; if it is a forgery, it at leastshows that the stronger sense of the word was remembered and was thought tobe applicable to a non-citizen. When there is no stronger word added, as in thecondemnation of Archeptolemus and Antiphon, it is impossible to prove that

outlawry is intended; but when the offence is treason or revolution, and thepenalty includes death, confiscation of property, and extension to the whole

family, the stronger sense of the word is surely likely; anything less would be ananti-climax.7 I believe that Archeptolemus and Antiphon were declared outlaws,together with all their illegitimate and legitimate descendants; and the illegitimateneed not have been citizens to be subjected to this kind of rtpi'8a.8

(c) Isaeus, 3. Her. Pyrrh. 45: ~rete6 8r7- evoKXeXly'y6a 6 Ev6t&oqv

i&&XOt6ljvov, irerpeI/aC, cLNut66ripe, 7Tv 6K rT7-Efl'V7T?rTTq HTCiHppcP

'ye'yeovpr7Tv ~)cq C &a'lpaqc Keipy oiowav yyuv&aoat; f the woman was

legitimate, she would have been an'&rni Xrpoc; she has been given in marriageon the assumption that she is illegitimate and so not an &ri Xr7poq; he speakersays nothing to suggest that there was anything wrong in Xenocles' marrying an

illegitimate woman; 'but', MacDowell comments, 'in the fourth century marriageor cohabitation of a citizen and a non-citizen as husband and wife was forbidden'

4 The Law of Athens, ii (O.U.P., 1971),169-76.

s Atimistraffen i Athen i klassisk tid

(Odense U. P., 1973), pp.42-52, cf. Englishsummary, pp.282-3, and Apagoge, Endeixis

and Ephegesis ... (Odense U. P., 1976),pp.75-82. In the latter book, p.55 n.8,Hansen draws the same conclusion asMacDowell from X. Or. 834 A-B.

6 Texts collected and discussed byR. Meiggs, The Athenian Empire (O.U.P.,1972), pp.508-12.

7 Against Hansen I believe that d&rqtiaalso denotes outlawry at any rate in Hesp.

21 (1952), 355-9, no. 5 = SEG xii.87,11-22 (cf. decree ap. And. 1. Myst. 96,where wtv rC . ..

.PX7'v rtva &pXrKaraXAXvgE'v7lci S677oKLopariac,oAX4LoW

EUaw ACOvaiwv Kai v7wrolvel eOtVrw).8 In Hansen's view the weaker, classical

sense of &rtlia still denotes the withdrawalof personal as well as of civic rights, fallingscarcely short of outlawry; and although helimits its application to citizens (and indeedmany ways of incurring it were open onlyto citizens) if the weaker &rtgla was asdrastic as that it too could meaningfully beextended to non-citizens.



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BASTARDS AS ATHENIAN CITIZENS 91

([Dem.] 59. Neaer. 16, 52). Here I grant that the most straightforward interpret-ation of the texts supports MacDowell's conclusion-if a bastard could enter intoa formal Athenian marriage, bastards ought not to have been debarred from

Athenian citizenship-but for two reasons it may be wrong to insist on thestraightforward interpretation of these texts. The first was advanced by W. Wyse:Xenocles claimed (whether rightly or wrongly, whether sincerely or insincerely)that Phile was not illegitimate; despite what is said in the passage quoted above,it may also have been presumed that she was not illegitimate when he marriedher; and the speaker's reason for not challenging the validity of the marriagemay be not that marriage to a bastard was unexceptionable but that if themarriage was illegal his own brother Endius was guilty of giving away Phile inan illegal marriage.9 Secondly, there may have been an ambiguity in the law:what was forbidden by the texts quoted in [Dem.] 59 was marriage or

cohabitation between an oarde or &ouri and a evrj or ?evoq; if bastards weredebarred from citizenship, they will not have been &orai in the full sense of theword (they will presumably have ranked officially as gldrototO?), yet any whose

parents were both Athenians will not in the ordinary meaning of the word havebeen z-vot. If this was so, a man who was illegitimate will have had little chanceto exploit the ambiguity: he should have failed to be admitted to his father'sdeme and so to the citizenship when he came of age, and thereafter should nothave been able to marry as if he were a citizen. But for women it will have beeneasier, since they did not have to justify their claim to membership of a phratryor a deme, could not exercise the civic rights of a citizen, and unless in theabsence of legitimate sons they became &bui pot they could not inherit theirfather's property; a daughter's status was never officially acknowledged as ason's was when he came of age. The object of Pericles' citizenship law and ofthe laws which reaffirmed and strengthened it was to exclude foreign blood;and a woman who was Athenian but illegitimate, who had been brought up inher father's household, may although not legally a nroXin have been able inpractice to marry as if she were.

Of MacDowell's three pieces of evidence, the first is an omission in a textwhich abounds in omissions, the second is an instance of &rtpia which I believeto have been intended as outlawry, capable of being imposed on non-citizens,the last arises from a lawcourt speech where the direct approach leads to hisconclusion but may not be the right approach; the last is the case in which I amleast sure that he is wrong, but none proves his point beyond reasonable doubt.Moreover, the argument from membership of phratries should not be dismissedtoo lightly. If bastards were excluded from the phratries (which MacDowellaccepts), and if before Cleisthenes' reforms citizenship depended on member-ship of a phratry (which is generally believed), then at that time bastards weredebarred from citizenship. After Cleisthenes' reforms citizenship depended onmembership of a deme, and I accept that although it remained normal member-

shipof a

phratrywas no

longer essential;1but if in the fifth and fourth

centuries

9 The Speeches of Isaeus (C.U.P., 1904),pp.278-82.

10 Cf. S. C. Humphreys, JHS 94 (1974),94.

It is generally accepted that afterCleisthenes' reforms it was not necessary tobelong to a phratry to be a citizen: Harrison

considered the strongest argument to bethat 'Ath. Pol. 42.1, which gives in somedetail the qualifications for entry on thedeme register, does not list membership ofa phratry' (The Law of Athens, i.64 n.1);as I have shown, I do not trust A th. Pol.to tell the whole truth, but Cleisthenes'



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92 P. J. RHODES

bastards were entitled to citizenship that represents a departure from olderpractice: Cleisthenes is of course said to have included veozroorat n the citizenbody (Ath. Pol. 21.4, Arist. Pol. 3.1275b 34-7), and his veornoXal may

have

comprisedor included

bastards,but the burden of

proof must rest with thosewho believe that older practice was abandoned in this respect.12 As shown by thepassages in Arist. Pol. which MacDowell cites (3.1278a 26-34, 6.1319b 8-10)neither the admission of bastards to citizenship nor their exclusion wasunthinkable in classical Greece. In view of Athens' reliance on 6 povX6pevoqto demand enforcement of the law, I should not wish to deny that on occasionsa man with no influential or persistent enemy may have succeeded in registeringan illegitimate son both in his phratry and in his deme;13 but I am not yetpersuaded that bastards were entitled to Athenian citizenship.

University of Durham P. J. RHODES

APPENDIX: DEMOSTHENES, 57. EUB.

When the registers were revised in 346/5Euxitheus was expelled from the demeHalimus, apparently on the grounds thathe was not ' orepwv yeyovc &aorTWv.His principal oncern n the speech s toshow that his father and mother wereboth &rool; he also invokes he evidence ofphratry membership ? ? 23-5, 40, 46,cf. 69)-not, I believe, because phratrymembership was required or citizenship,but because he members of phratries werea more exclusive body than the Atheniancitizens, to provide an argumentumfortiori; he also insists that his parentswere duly married nd that he is theirlegitimate on (??40-3, 53, 69). In

fourth-century Athens a citizen could notlegally marry a non-citizen (cf. on passage(c), above): the sceptic could maintainthat Euxitheus lays comparatively littlestress on this part of his case, and thathere as with phratry membership he is notproving something that he has to provebut arguing a fortiori; I should reply thatEuxitheus had not been challenged ongrounds of legitimacy, and that at any ratehis legitimacy seemed important enoughto be worth reasserting in his peroration(? 69). This speech does not prove thatAthenian citizens were required to be oflegitimate birth, but it does not weakenmy belief in that requirement.

reforms are more easily explained if

60Ktpaclaa n and admission to a demesupplanted, rather than were added to,6oK0tlaaa in and admission to a phratry as

the prerequisite of citizenship (see H. T.Wade-Gery, CQ 27 (1933), 26 n.2, 26-7with 27 n.2, cf. CQ 25 (1931), 129-43 =Essays in Greek History (Oxford: Blackwell,1958), pp.149 n.2, 150-1 with 151 n.2,cf. 116-34). According to Plut. Per. 37.5,after the death of his legitimate sonsPericles was allowed to have his son byAspasia enrolled in his phratry (whereasaccording to Suid. 6roonolroLro A 451]the young man was made a citizen): buteven if Plutarch is right (as he may well be)

this does not prove that membership of aphratry was still required for citizenship.

12 There is another argument which isnot conclusive but has some force. There isa tendency in our sources to use v60oc ofmen who were, or were alleged o be,yr7rp6devot e.g. Plut. Them. 1.1-3; Ael.V.H. 6.10, 13.24, Suid. 6r7ponolrroC[A 451]; cf. Ath. 13.577 B, Lex. Seg.[I. Bekker, Anecdota Graeca, i], 274.21,Suid. Kvvdoapyeq K 2721]): assimilationin this direction would be surprising f(Athenian) vdeotwere entitled to citizen-ship but prrpd6evot were of lower statusand were not so entitled.

3On the other hand, f bastards wereentitled to citizenship, we may wonderwho would sponsor a man for admission

to a deme, and to which deme, if his fatherrefused o acknowledge im.


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Rhodes, P. J. Bastards as Athenian Citizens