Mirko Canevaro and Edward Harris, in their recent CQ articleFootnote ¹ (henceforth C&H), have rejected, as forgeries or reconstructions of post-classical origin, all the laws and decrees appearing in the text of Andocides' speech On the Mysteries (77–98) and purporting to be the documents which the speaker, at six points in that passage, directs the clerk to read out.Footnote ² I have no quarrel with their arguments (pp. 100–19) for rejecting the documents presented as the decree of Patroclides (§§77–9), the decree of Tisamenus (§§83–4), and a series of new laws passed in 403/2 b.c. (§§85–7) – though in this last case, with the exception of one phrase,Footnote ³ the genuineness of the laws themselves is confirmed by the fact that they are cited verbatim by the orator in the surrounding text (§§88–9, 93, 94, 99). I shall be concerned here only with the last document of the group, a decree ascribed to Demophantus (§§96–8), which C&H discuss at pp. 119–25.

There certainly was a famous decree that was carried on the motion of Demophantus at some time after one of the two restorations of democracy in the late fifth century, and it certainly dealt with the same subjects as the document found in Andocides' text (henceforth, for convenience, I will refer to this document simply as D). We know this from Lycurgus' speech Against Leocrates (§§124–7), delivered in 330 b.c.Footnote ⁴ Lycurgus, prosecuting Leocrates for treason, refers to a decree proposed by Demophantus ‘after <the rule of> the Thirty’, and set up on a stele in the council chamber, in which the people ‘voted and swore that if anyone attempted to establish a tyranny, or betray the city, or overthrow the democracy, whoever became aware of this could kill him and be clear of pollution (καθαρόν)’, and he tells the jury that ‘youFootnote ⁵ have sworn to kill (κτενεῖν) him who betrays his country, both by word and by deed and by hand and by vote’. That most of these provisions are also found in D is not, of course, in itself evidence of D's authenticity, since a compiler might have taken them from Lycurgus' speech; there is, however, one feature of D that suggests that Lycurgus is not its source – the absence of any reference to betrayal of the city, on which Lycurgus, for obvious reasons, lays more emphasis than on any other feature of the decree.Footnote ⁶

It is equally certain, as C&H show, that D is not ‘the law from the stele’ which Andocides at his trial instructed the clerk to read (Andoc. 1.96). There are three proofs of this:

(1) Andocides four times calls the document he is citing a ‘law’ (νόμος), once describing it as a ‘law of Solon’ (Andoc. 1.95, 99); D in its prescript calls itself a ‘decree’ (ψήφισμα). There was no need for him to upgrade the status of the enactment in this way, with the risk of being detected in a falsification. He is using it to argue that but for the laws passed at the time of the amnesty, Epichares, one of his accusers, would have been liable to summary killing, because he had been a councillor under the Thirty (Andoc. 1.95). That argument, at least on Andocides' reading of those laws, would not depend on the status of the enactment; he could apply to Epichares the mirror image of his own argument that the amnesty protects him from prosecution because ‘the laws are to be applied as from the archonship of Euclides [403/2 b.c.]’ and ‘no decree either of the Council or of the PeopleFootnote ⁷ is to have more validity than a law’ (Andoc. 1.89). He might have had to phrase his argument differently, he might have had to present it a little earlier or later than he actually did; he could still have used it, without needing to claim that a ψήφισμα was a νόμος.

(2) The law that Andocides cited was inscribed on a stele in front of the council chamber (Andoc. 1.95); the decree of Demophantus, which D purports to reproduce, was inscribed on a stele within the council chamber (Lycurg. Leoc. 124, 126).

(3) The law that Andocides cited provided that if an office-holder in an anti-democratic regime was assassinated, his property would be given to the assassin (Andoc. 1.95). In D there are two provisions about the property of the guilty, differing both from the above and from each other; the relationship between them will be further discussed below.

It follows automatically that D, like the other purported laws and decrees, must have been inserted into the text of Andocides at a later (probably Hellenistic) date. It does not follow automatically, however, that D is not the genuine decree of Demophantus; for all we have yet seen, it might have been extracted from a collection of Athenian decrees such as that of Craterus (FGrH 342) and inserted here in the mistaken belief that it was the law that Andocides was citing. The mistake would have been caused by the presence in both enactments of a provision that anyone holding an office after the democracy had been overthrown could be killed with impunity (Andoc. 1.95 and 96). Whether this is what has happened, or whether D is a later concoction, can only be established on the basis of D's own content and language.

It needs to be remembered that, on any showing, the decree of Demophantus was one of the most extraordinary ever passed by the Athenian Assembly, mandating as it did an oath whereby (as Lycurgus confirms) every citizen swore that under certain circumstances he would kill other Athenian citizens without trial – an oath which, had it been in force a short time previously, would have precipitated a large-scale massacre. It is therefore not necessarily to be assessed against the routine language of ordinary Athenian laws and decrees. We know, indeed, again from Lycurgus (Leoc. 127), that at least once in the decree the word used for ‘kill’ was not the usual ἀποκτείνειν but the archaic-poetic κτείνειν (as in D's text of the oath, where the shorter verb appears three times), which is otherwise completely absent from Attic prose inscriptions except for IG i³ 104, the reinscription of the homicide laws ascribed to the seventh-century legislator Dracon.Footnote ⁸ If Lycurgus had replaced this verb with its prosaic synonym – as he did in an earlier passage (Leoc. 126) – its occurrence in D would certainly have been cited by C&H as evidence against D's authenticity; as it is, we should not be surprised, or automatically suspicious, if D contains other linguistic features that are found in poetic, or rhetorically elevated, texts but are rare or unknown in inscribed decrees.

I now examine, seriatim, the arguments against the authenticity of the decree presented by C&H (pp. 121–4); the numeration of the arguments is theirs.Footnote ⁹

(1a) In the prescript, the name of the proposer is followed by συνέγραψεν ‘composed, drafted’ instead of the normal εἶπεν ‘proposed’. The parallel of IG i³ 78a.3–4 (τάδε οἱ χσυγγραφς χσυνέ[γρ]αψαν) is rejected because there ‘the names of the syngrapheis are not given and the verb is in the plural, not the singular’. But a forger would certainly have been aware that εἶπε(ν) was the normal verb for proposing a decree,Footnote ¹⁰ and the phraseology of D is precisely that of IG i³ 78a except that on this occasion there was apparently only one συγγραφεύς (who could be named easily) rather than a board of, say, ten of them (whom it would have been inconvenient to list by name). Presumably the verb συνέγραψεν is used rather than εἶπεν because Demophantus did not propose the decree on his own initiative but was instructed (either by the Council or the Assembly) to draft one.

(1b) The expression ἡ βουλὴ οἱ πεντακόσιοι λαχόντες τῶι κυάμωι ‘the Council, the five hundred, chosen by lot’ Footnote ¹¹is ‘unparalleled in all decrees of the fifth and fourth century’ including those of 410/09, the year to which the decree is usually dated by those who regard D as authentic (see further on 1f below). But the term is here used for a specific and unique purpose, to define an epoch, that of the restoration of democracy, marked by the inauguration of the old democratic council chosen by lot, whose predecessors had been dismissed when the democracy was overthrown in 411 (cf. Thuc. 8.69.4–70.1, [Arist.] Ath. Pol. 32.1) and replaced, first by an oligarchic council of four hundred, and then, under the regime of the Five Thousand, by a council that symbolically reverted to the traditional number of five hundredFootnote ¹² but was chosen by election, not by lot. It is true that those who have argued for the existence of such an intermediate councilFootnote ¹³ have relied on the evidence of D; but it is plausible in any case. There must have been a council of some sort during the period of the Five Thousand; it is not likely to have retained the number of four hundred, associated with the now hated oligarchy,Footnote ¹⁴ and it is not likely to have gone back to the ultra-democratic practice of appointment by lot when the new regime was carefully distinguishing itself from the radical democracy by prohibiting all payment for public office and putting a curse on anyone who proposed it.Footnote ¹⁵

(1c.i) ‘The secretary of the Council is named twice in the prescript, Footnote ¹⁶which is … unparalleled in this period.’ The explanation of this is the same as that of (1b): the second naming of the secretary is for the purpose of defining an epoch. One might have expected that the name of the archon would be used for this purpose, as that of Euclides famously was in 403/2; but once the draftsman had decided that the epoch should be that of the restoration of the democratic Council, it was natural to identify the year by reference to the first secretary of the Council, as is done in two other fifth-century decreesFootnote ¹⁷ and in many financial records.Footnote ¹⁸

(1c.ii) The naming of the first secretary is introduced, in the transmitted text of D, by the conjunction ὅτε ‘when’. This is likewise unparalleled and indeed nonsensical; the normal linking word is the relative pronoun ἧι, identifying the body referred to as the Council ‘for which’ So-and-so was the first to serve as secretary. This is only evidence of spuriousness if we rigidly follow the principle that ‘one should examine the texts as they are found in the manuscripts’ (C&H 98) – as if it were more likely that the creator of a document should write nonsense than that a scribe should miscopy a word at some point in the course of at least a millennium and a half of transmission (for our text of On the Mysteries depends on a single manuscript of the thirteenth century). Droysen's emendation οἷς ‘for whom’ (referring back to οἱ πεντακόσιοι ‘the Five Hundred’) is entirely satisfactory; corruption of ΟΙC to ΟΤЄ would be easy.

(1d) The allegedly ‘faulty’ syntax of ἄρχει χρόνος … ἡ βουλὴ οἱ πεντακόσιοι (‘the date of commencement … is the Council of the Five Hundred’) is paralleled by several inscriptions, of which MacDowell in his commentaryFootnote ¹⁹ already cited what is now IG i³ 402.14–15; cf. also e.g. IG ii² 2492 χρόνος ἄρχει τῆς μισθώ(σεως) τοῦ Δημητρίου καρποῦ Εὔβουλος ἄρχων, τοῦ δὲ ξυλίνου ὁ μετ' Εὔβουλον (‘the date of commencement of the lease of Demetrius’ crops is the archonship of Eubulus, but of the timber it is the archonship following that of Eubulus').

(1e) The specification of the date of commencement is said to be otiose. But in the first place, once again, this decree is designed to be literally epoch-making; and in the second place, stating that the decree shall have effect as from the installation of the democratic CouncilFootnote ²⁰ guarantees that it will not be so construed as to apply to earlier events and make everyone who had held office under the previous regime(s) into a legitimate target for summary killing.

(1f)Footnote ²¹ The name of the secretary of the Council is transmitted in D, both times it occurs, as Cleogenes (Κλεογένης). Since Lipsius it has been common to emend this name to Cligenes (Κλειγένης), who was the first secretary of the Council in 410/09 when, furthermore, the tribe Aiantis held the first prytany of the year as it is said to do in D (IG i³ 375.1–3). C&H say that ‘it is unlikely that a scribe would have made precisely the same error in two different places’; but a double corruption, if it occurred here, would probably have been due to an initial single error followed by a false ‘correction’ of the uncorrupted name into conformity with the corrupted one.Footnote ²² A more serious difficulty with the emendation, and the dating of the decree to 410/09, is that they contradict the evidence of Lycurgus, who says explicitly that the decree of Demophantus was passed ‘after the Thirty’. But Lycurgus may have been wrong – and one can see why. By the middle of the fourth century, oligarchy at Athens meant, to the average Athenian, the Thirty. In the speeches of Demosthenes and his contemporaries, the Thirty are mentioned twenty times; the Four Hundred are referred to only twice, both times in conjunction with the Thirty,Footnote ²³ never on their own. Lycurgus himself, earlier in the same speech (Leoc. 61), arguing that a city can survive enslavement but not destruction, says that Athens was enslaved ‘long ago by the tyrants, and a second time by the Thirty’, the Four Hundred being forgotten. Under these circumstances it would not be surprising if a decree passed in the aftermath of the earlier oligarchy came to be associated instead with the later one. And if we reject Lipsius' emendation and the date of 410/09, we are faced with an unlikelihood of a different kind: that a forger hit by coincidence on a name for his Council secretary that differed by only one letter from the name of a real Council secretary who likewise served in the first prytany of the Council year, when the prytanizing tribe was likewise Aiantis, within a decade or so, at most, of the actual date of the decree.Footnote ²⁴ That seems considerably more unlikely than that a memorable decree against oligarchs came to be associated with a memorable and detested oligarchy instead of a half-forgotten one, and that later a scribe got a man's name slightly wrong and another ‘corrected’ a name that was not corrupt.

(2a) D provides that one who attempts to overthrow the democracy, or holds any office after it has been overthrown, ‘shall be an enemy (πολέμιος) of the Athenians’, and its oath includes the promise to regard the assassin of such a man as unpolluted ‘because he has killed an enemy of the Athenians’. C&H point out that in classical Attic πολέμιος ‘is always used for an enemy in war [and] is never employed as the equivalent of … ἄτιμος’. No, indeed; and it is not being employed as the equivalent of ἄτιμος here. A person who was ἄτιμος was thereby deprived of some or all of his rights as a citizen; but he was not deprived of the right to lifeFootnote ²⁵ – nobody had the right, let alone the duty, to kill him out of hand, even if he was found violating one of the prohibitions to which he was subject. There were, to be sure, certain criminals, from highway robbers to adulterers, who could under certain circumstances be killed with impunity; but even in their case there was no duty to kill. With the overthrower of democracy it was different: anyone who became aware of what he was doing was under a duty – a sworn duty – to kill him, which put him in a position that could only be compared with that of an invading enemy. That is the point of πολέμιος: killing an overthrower of democracy is to be regarded as comparable with the killing of an enemy in war, which incurs no pollution (Eur. Ion 1334) and cannot be prosecuted. No other word could have conveyed that message. Furthermore, there was an inscription, well known long after Andocides' time, in which a detested individual was outlawed as a πολέμιος to the Athenians. This was a bronze stele on the Acropolis (Dem. 9.41, 19.272; Din. 2.24) declaring Arthmius of Zeleia ‘ἄτιμος and a πολέμιος of the Athenian people and their allies’ because he had ‘brought Persian gold to the Peloponnese’. In the Third Philippic (9.44) Demosthenes explains that ἄτιμος in this inscription must be understood to mean not merely deprivation of civic rights (‘what would that matter to a Zeleian?’) but total outlawry, implying that ‘he who killed such a man would be pure (καθαρός)’. The use of πολέμιος in Demophantus' decree may have been based on this model.

(2b) D provides that he who kills, or plots the killing of, an overthrower of democracy shall be ὅσιος and εὐαγής, both meaning roughly ‘free of pollution’. The first of these adjectives probably appeared in the ‘law of Solon’ that Andocides cited at the trial (Andoc. 1.95); the second, however, is a ‘literary term’ (C&H 123) and is not found in any Attic prose inscription. We have, however, seen that the decree certainly included at least one archaic-poetic word, and it could well have included more than one. Moreover, the word appears in the fuller recension of Demosthenes' Third Philippic (9.44) in connection with (though not as part of) a quotation from the laws of homicide, relating to persons ‘to whom the laws do not grant a trial for murder, but whom it is εὐαγές to kill’; it is quite possible, though it cannot be proved, that the adjective εὐαγής was actually to be found in the laws of Dracon.

(3a.i) Lycurgus (Leoc. 127) says that the oath in Demophantus' decree was to kill the traitor ‘both by word and by deed and by hand and by vote’; in D, as transmitted, the greater part of this phrase (λόγωι καὶ ἔργωι καὶ ψήφωι) appears in a completely different place (in the statement of the reward to be given to the killer), where it makes no intelligible sense. C&H's rigid methodology apparently requires them to suppose that this is what the ‘forger’ wrote, which is utterly incredible (unless he was mechanically copying an already corrupt text). It is far more likely, as has long been seen, that the words in question are misplaced in D, probably by the classic error of a line being skipped by a copyist, written in (either by the same copyist or by a corrector) at the foot of a column or page, and then mistakenly copied back into the text at the place where it had been written in.

(3a.ii) In the phrase καὶ τῆι ἐμαυτοῦ χειρί (‘and with my own hand’), the word ἐμαυτοῦ is said to be otiose (‘who would use someone else's hand to kill a potential tyrant?’) and nowhere found in Attic inscriptions before the Roman period. To the second of these objections an answer may be given in C&H's own words (p. 115):

If first-person forms are generally absent from decrees and laws (except for oaths), it is not surprising that the genitive of the first-person reflexive pronoun does not occur in them (except in an oath). As to the first objection, the answer to C&H's rhetorical question is obvious: anyone who organizes an assassination plot but does not take part personally in the action, and anyone who votes as a juror to condemn the potential tyrant to death (killing him, as the oath put it, ‘by vote’). And it is certainly good Greek to speak of doing a deed personally as doing it ‘with one's own hand’; cf. Aeschines 3.224 ‘having twice tortured the same man τῆι σαυτοῦ χειρί’.Footnote ²⁶

(3b) D contains two different provisions as to what is to happen to the property of a person put to death under the decree. In its first operative sentence, it is stated that the culprit's property will be confiscated by the state and one-tenth of it is to belong to ‘the goddess’ (Athena); but in the oath, the Athenians are to swear that ‘if anyone else kills him’ they will ‘sell all the possessions of the deceased and give half to his killer, and not hold back anything’. The two provisions, however, might well refer to different situations. Not all oligarchs or would-be oligarchs would meet summary death at the hands of an assassin acting on his own initiative. Some would be put on trial and, if convicted, would be sentenced to death. What was to happen to their property then? There was no killer to reward, so in that case it would be logical for the whole of the culprit's property, instead of only half of it, to escheat to the state. Thus the decree provides that all of the guilty man's property shall be confiscated and sold by auction; one-tenth of the proceeds are to be dedicated to Athena; if the man was put to death by court sentence, the remaining nine-tenths will belong to the state; if he was killed by an individual, this amount is to be divided equally between the state and the killer.

(3c) The word ἀπόγονος ‘descendant’ is not found in Attic inscriptions before the Imperial period, the regular word in earlier inscriptions being ἔκγονος (whereas ἀπόγονος is very common in literary texts). This is probably the strongest argument C&H have to offer against the authenticity of the decree. Even so, we may note that Dinarchus (1.102) speaks of the ἀπόγονοι of Harmodius and Aristogiton, as D does – and that no Attic prose writer speaks of their ἔκγονοι (there is only Aristophanes, Knights 786, where ἀπόγονος would be unmetrical); it is possible, therefore, that this word was in regular use with specific reference to the descendants of this heroic pair.Footnote ²⁷

(3d) The phrase καθ' ἱερῶν τελείων ‘over perfect sacrificial victims’ is said to be ‘otiose’ and never to be found ‘in oaths or instructions to swear oaths in Athenian laws and decrees from the Classical period’. It was not, however, apparently considered otiose by the drafters of the Athenian/Argive/Mantinean/Elean alliance of 420 (Thuc. 5.47.5), or of whatever document lies behind [Aristotle], Ath.Pol. 29.5, or (if Apollodorus is to be believed) by the members of the genos Brytidai when they challenged Phrastor to swear that his son by Phano was of legitimate citizen birth ([Dem.] 59.60; he declined the oath).

(3e) ‘In oaths to be sworn by all Athenians, one never finds the phrase κατὰ φυλὰς καὶ κατὰ δήμους (‘by tribes and demes’)’. This is, however, as we have seen, an oath of a very exceptional character, and might well be thought to require an exceptional procedure.Footnote ²⁸ If the members of each deme swore as a separate unit,Footnote ²⁹ every citizen would be taking the oath together with, and under the eyes of, a group that included many of his relatives, friends and (not least importantly) enemies, and would know that all these were directly aware of the formidable obligation that he had undertaken.Footnote ³⁰

(3f) Lycurgus, as we have seen, gives the impression that the decree of Demophantus was directed most of all against those who betrayed the city; D does not mention them. As already argued (p. 50), this strongly suggests that whoever inserted D into Andocides' text did not use Lycurgus as a source. Yet, as we have also seen, he does share some accurate details with Lycurgus. Either he derived these details from some other, presumably oratorical source – which, in that case, cannot have said anything about traitors – or else he is reproducing the authentic text of the decree, probably from Craterus, and Lycurgus is misrepresenting it in order to give the impression that it is relevant to his case, which is a charge of treason, not of tyranny or subverting the democracy. Before the decree is read (Leoc. 124, 125) Lycurgus mentions treason only in combination with one or both of the two crimes that do get mentioned in D; treason appears alone only at §127, well after the document has been read. If the text of the decree that was read to the court was that of D, only about one-sixth of it was concerned with defining the crimes to be punished; the rest of the text was devoted to the killing of the culprits, the rewarding of their assassins, and other matters, and there was a good chance that the jurors would hear, as it were, what they had been told to expect to hear, and not notice that there had been no actual mention of treason.

I conclude that there is no serious reason to doubt that D is the authentic text of the decree of Demophantus, passed early in the year 410/09. It is in a real sense a ‘forgery’ in Andocides' text, in that it is a document pretending to be something it is not, viz. the one that Andocides ordered to be read to the court at this point in his speech; but the rhetorician who inserted it in the text appears to have taken it from a collection of decrees like that of Craterus.Footnote ³¹ Any maker of such a collection would have found this decree a strong candidate for inclusion because of its association with an important crisis in Athenian history, the exceptional gravity of the oath it recorded, and the interest shown in it by later orators.Footnote ³²