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The Laws of Demetrius of Phalerum and their Guardians.

By William Scott Ferguson.

Most of the Athenian 800 or boundary-stone inscriptions fail to specify the time at which the transaction recorded was completed 1). There are some exceptional cases, however. Thus the following documents are dated precisely: (1) IG II 2 1133 in 315/4 B. C., (2) Sitz. d. Berl. Akad., 1897 665 no. 4 in 315/42), (3) Ibid., 1898 783 no. 27 in 315/4, (4) IG XII 8 18 in 314/3, (5) Ibid., 19i in 314/3, (6) Ibid., 19 ii in 314/3—307/6, (7) IG II 2 1134 in 313/2, (8) Sitz. d. Berl. Akad., 1897 665 no. 5 in 312/1, (9) IG II 2 1136 in 305/4, (10) Ibid., 1137 in 305/4-303/2, (11) Ibid., 1138 in 302/1, and (12) Ibid., 1141 in 276/5.

From this list two inferences may be made (1) that the practice of indicating the year in a boundary record was established by the law-code of Demetrius of Phalerum, and (2) that this code was promulgated in the year 316/5 B. C. On these points an argument is hardly required. The catalogue speaks for itself. We may simply mention that the Parian Chronicle 3) enters the item, Δημήτριος νόμους ἔθηκεν ̓Αθήνησιν under the archonship of Demogenes (317/6 B. C.), and that Syncellus (Hieronymus) enters under the year 316/5 B. C. the item, Autolos & Painρεὺς ἐγνωρίζετο τρίτος νομοθέτης ̓Αθήνησιν. Neither of these reports, however, has any real weight. The Parian Chronicle simply dates the legislation of Demetrius in the year in which he assumed office which doubtless, he received the commission to revise the laws. The date of Hieronymus, though correct, is probably so by accident, since his determinations have in general the value only of approximations. We may mention also that IG II 584 (Ditt., Syll. 2, 164) with Wilhelm's restoration 4) νόμους] ἔθηκεν καλοὺς καὶ συμφερόντας τει πόλει, places the legislation of Demetrius at the beginning of his decade of government in Athens, where, too, the general consideration that the reformer would be unlikely to defer long so essential a step as the revision of the laws places it. The inscriptions cited above, however, enable us to

in

1) These inscriptions are published in IG II 2 1103 ff., 5 1111 ff., Hitzig. Das griech. Pfandrecht, 62 f.; Ziebarth, Sitz. d. Berl. Akad., 1897 664 ff., 1898 776 ff.; Tillyard, Annual of the British School in Athens, XI 1904/5 63 ff.; Robinson, Amer. Jour. Phil., 1907 432; IG XII 8 18 ff. Cf. also Dareste, Reinach. and Haussoullier, Recueil des inser. jurid. grecq., 107 ff. The whole subject of mortgages and their publication and preservation is discussed by Beauchet, Hist. du droit privé de la république athénienne, vol. III 176 ff., 319 ff.; IV 60 ff.

2) Republished without identification in Annual of the British School, XI 63 ff. no. 20. 3) IG XII 5 1 444 CXIV. - 4) GGA 1903 784, 790.

Klio, Beiträge zur alten Geschichte XI 3.

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fix the date of its promulgation in 316/5 B. C. In the following year the archon's name became an integral part of these records.

Another characteristic of the records inscribed on the boundary stones after 316/5 B. C. is the frequency with which a specification is made of the person with whom the original papers (ovvdîza) are deposited. This is done in the case of (2), (4), (5), (6), (8), and also in the case of IG II 2 1139, II 5 1139 b, which Kirchner1) dates in ca. 300 B. C., and in the case of IG II 2 1140, Sitz. d. Berl. Akad., 1898 nos. 26 and 28, of which all we can say is that they belong to the fourth century B. C. It is omitted, however, in (3), of which the date is 315/4 B. C., (7), of which the date is 313/2 B. C., and (9) to (11), of which the dates range from 305/4 to 302/1 B. C. (1) and (12) are mutilated and hence yield no information on this point. We cannot say with any degree of certainty that the holder of the contracts was ever specified before 316/5 B. C. We can simply affirm that after 316/5 B. C. his name, like that of the archon 2), was frequently, though not always, communicated.

The inscription on the ooo was of course not an official, not the legal, record of indebtedness: it was simply an advertisement made in the interest of third parties, or by a creditor interested in having the fact of a loan known to his debtor's neighbors in order to secure himself for the future against a possible denial of obligation. The ooo might be submitted as evidence in the courts, but a proof could be completed without them, and, in fact, the genuineness of the öoo was often the question at issue in litigation 3). The sole purpose that the specification of the time of contracting a loan could have was to facilitate a search and above all establish publicly the sequence of several loans secured by a single piece of realty, and thus safeguard investors. How this had been done prior to 316/5 B. C. the inscription first published by Robinson shows *). The property in question was sold with the right to repurchase for 1, 500, 1,200, 600, 150, and 100 drachmae successively. As the entire loan-value of the estate was gradually reached the size of the mortgage decreased. The order of entry thus decided the right to priority of claim. This sufficed when the whole transaction was completed at once, or when the successive mortgages were entered on the same slab; but when they were entered on different sides of the ooos, if that were possible, or on different go, there was no obvious means of settling the order of claims without having resort to witnesses, as was usual, or to the original contracts, of which the place of deposit was nowhere specified, of which the 1) PA 3165, 7503.

2) The name of the archon is omitted in IG II 2 1139 and 5 1139 b.

3) On these points see Hitzig, and Recueil, Loc. cit.; also Beauchet, III 355 ff. 4) Amer. Jour. Phil., Loc. cit. Republished by von Premerstein, Athen. Mitt. 1910 103 ff. Robinson very kindly tells me that he finds his readings of the numerals preferable to those of von Premerstein.

very existence might be successfully denied till it was too late, and which seem to have been frequently lost or destroyed 1). After 316/5 B. C., we may assume, the ovviaι themselves were always dated precisely, and always deposited with a banker 2) or some other reliable person, it being, of course, with the original articles that the legislator dealt, not with their informal publication. What was required in the formal document became, however, as we have seen, common in the informal document.

To wills also (daðiα) this regulation seems to have been applied. Hence, whereas in the testament of Aristotle ) there is no specification of the party with whom it is to be deposited, this information is carefully conveyed in the other daizai preserved in Diogenes Laertius these of Theophrastus, Straton, Epicurus, Arcesilaus, and Lycon1) — all of which are posterior in time of composition to the legislation of Demetrius. Moreover, whereas Demosthenes) says flatly diadηnov ovdɛìç лóποτε ἀντίγραφα ἐποιήσατο, after the time of Demetrius it seems to have been customary for a man to make several copies of his will and indicate to the holder of each to whom the others were entrusted. Thus, this was done by Theophrastus and Arcesilaus 6).

In one case Demetrius apparently went still farther in the matter of doors or transfer of property by gift during the owner's lifetime. Thus Harpocration defines δόσις: ἰδίως μὲν λέγεται παρὰ τοῖς ρήτορσι συμβό λαιον γραφόμενον ὅταν τις τὰ αὑτοῦ διδῷ τινι διὰ τῶν ἀρχόντων, ὡς παρὰ Δεινάρχῳ. The significant phrase is διὰ τῶν ἀρχόντων, which involves the consent of the magistrates before the transaction was legal. As Beauchet points out), there is no evidence for the official registration of such transfers during the period of the Orators; and it is hardly an accident that the lexicographer supports his affirmation by a reference to Dinarchus alone. Rather, we must assume, Dinarchus reflects the practice established by the Phalerian. So too at the time of the death of Epicurus, an anagraphe which, as Wilhelm has shown), always implies the accessibility to the public of the record. was made of the doors of the philosopher's property to his executors; and the anagraphe in question was published in the Metroon "), the public record office of Athens. This sort of transfer of property needed special control because, in addition to the desirability that there should be no uncertainty as to ownership, it was necessary that a man should not be permitted to give away prior to death property which he could not alienate from his natural heirs by testament 10).

1) For the loss or destruction of documents see Beauchet, IV 60 ff.

2) Sitz. d. Berl. Akad., 1898 782 no. 26. Cf. Koutorga, Les trapèzites, 13, and Beauchet, IV 69. Dem. c. Phorm., 6: καὶ συγγραφὴν ἐθέμην παρὰ Κίττῳ τραπεζίτη. 3) Diog. Laert., V 11 ff. 4) Ibid., V 57, 63; X 16 ff.; IV 44; V 70.

5) C. Steph., II 28. 6) Loc. cit. in n. 4 above.

7) Op. cit., III 123; cf. III 342 ff. 8) Beiträge zur griech. Inschriftenkunde, 271 ff. 9) Diog. Laert., X 16 ff. 10) Beauchet, III 125; cf. P.-W. V 1598.

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The purpose of Demetrius in making these changes') is obvious. It was to protect the Athenian men of means, whose welfare he made it the avowed purpose of all his legislation to promote, in investing their money in Athenian real estate.

Demetrius is designated in our tradition) as a pupil of TheophraThe philosopher was from twenty to twenty-five years his senior: hence, despite the fact that the statesman was already prominent in public life for two years or more when Theophrastus succeeded Aristotle in the Peripatos, we need not doubt that the two men were really teacher and pupil. Certainly the devotion of Demetrius to Theophrastus during his decade of rule is well attested. as is the persecution of the school by the Athenian democrats both during their brief restoration in 318 B. C. and after the expulsion of the Phalerian in 307 B. C. And it is this intimacy which beyond a doubt has obliterated in our tradition the fact that Demetrius must also have been a pupil of Aristotle.

Another factor should not, however, be disregarded in this connection, the indebtedness of Demetrius the law-giver to Theophrastus the jurist. Says M. Dareste, than whom no one has a better right to speak on these matters, Théophraste a été un jurisconsulte, et le seul jurisconsulte considérable que la Grèce ait produit; then he hastens to add: nous ne parlons ici que du droit privé, car les travaux d'Aristote sur le droit public sont restés des chefs-d'oeuvre 3). The loss of practically all of Theophrastus's great work Пɛgi vónov and of practically all of Demetrius's epochmaking vóuot makes it impossible to measure the influence of the theorist upon the legislator; but the words of Cicero1) — post a Theophrasto Phalereus ille Demetrius mirabiliter doctrinam ex umbraculis eruditorum otioque non modo in solem atque pulverem, sed in ipsum discrimen aciemque producit give us sufficient warrant for assuming that it was farreaching and potent; and it is instructive to find among the relics of the work Περὶ νόμων the following passage): νόμος καὶ οὗτος Μασσαλιώ

1) Dem., c. Apatur., 36: πάντες άνθρωποι ὅταν πρὸς ἀλλήλους ποιώνται συγγραφάς, τούτου ἕνεκα σημηνάμενοι τίθενται παρὰ οἷς ἂν πιστεύσωσι. This shows that at the time oration XXVIII of Demosthenes was delivered there was no vouos to this effect. Cf. Dem. c. Spud., 21. It cannot of course be proved that Demetrius enacted such a róuos: he made some change in the requirement, however, and none seems so plausible as this. How he dealt with fraud or carelessness in the case of the third parties a not infrequent occurrence we do not know. See, however,

below p. 270.

2) Cic. de fin., V 54, de leg., III 14, de off., I 3, Brut., 37. Strabo, IX 398. Diog. Laert., V 39, 75. Cf. Martini, P.-W. IV 2818.

3) Rerue de législation française et étrangère 1870/71 262 ff. In an article entitled Le traité des lois de Théophraste, Dareste has collected all the extant fragments of this work of Theophrastus.

4) De leg., III 36.

5) Dareste, Loc. cit., XXVIII. Aelian, Var. Hist., II 38. Athen., X 429 (Theoph.

τικος γυναῖκας μὴ ὁμιλεῖν οἴνῳ, ἀλλ' ὑδροποτεῖν πᾶσαν γυναικῶν ἡλι κίαν. Λέγει δὲ Θεόφραστος καὶ παρὰ Μιλησίοις τὸν νόμον τοῦτον ἰσχύειν καὶ πείθεσθαι αὐτῷ τὰς Ἰάδας τὰς Μιλησίων γυναῖκας. The author of the well-known legislation on the public and private behaviour of women, the opponent in Athens of the social innovations of Hellenism, the creator of the Athenian gynaeconomi 1) need not have gone back to Aristotle's Politics) to find a justification for coercing the suffragettes of his city. A policy such as his was impressed upon the ideal lawgiver in the treatise of Theophrastus. Thus the philosopher wrote 3): Οὐ χρὴ δὲ τὴν γυναῖκα δεινὴν ἐν τοῖς πολιτικοῖς ἀλλ' ἐν τοῖς οἰκονομικοῖς εἶναι. And again 4): Οὔτε ὁρᾶν οὔτε ὁρᾶσθαι γυναῖκα καὶ ταῦτα ἐξησκημένην πρὸς κάλλος· ἐπίσταται γὰρ ἀμφότερα πρὸς ἃ μὴ δεῖ. And again *): 'Αναγκαιοτάτη δ ̓ ἐπὶ γυναικῶν ἡ τῶν γραμμάτων δοκεῖ παίδευσις εἶναι καὶ αὐτὴ μεχρί χρησίμου πρὸς οἰκονομίαν· τὸ δ' ἐξακριβούμενον ἐπὶ πλέον ἀργοτέρας τε ποιεῖ πρὸς τἆλλα καὶ λάλους καὶ περιέργους. The issue of such views must have been the commendation of gynaeconomi to regulate and supervise the odor of the women. And the general impatience of Demetrius at the utter abandon - the ζῆν ὡς τις βούλεται, the lack of respect of slaves for their masters, children for their parents, young for the old, private citizens for those in authority

characteristic of democratic Athens is reflected in his epigrammatic declaration *): τοὺς νέους, ἔφη, δεῖν ἐπὶ τῆς οἰκίας τοὺς γονεῖς αἰδεῖσθαι, ἐν δὲ ταῖς ὁδοῖς τοὺς ἀπαντῶντας, ἐν δὲ ταῖς ἐρημίαις ἑαυτούς. Nor is it likely that the assailant of ὑπερβολὴ τῆς τρυφῆς), the landator of the status τῶν μέτρια κεκτεμένων*) was without infuence upon the lawgiver who sought by checking extravagance of one kind or another to save the middle-class Athenian citizens from ruining themselves. Thus the restriction of the cost of burials, which stopped the erection of the beautiful but expensive family grave monuments in the Dipylon cemetery, was probably a prescription of Theophrastus; for in his will he gave instructions θάψαι δὲ καὶ ἡμᾶς ὅπου ἂν δοκῇ μάλιστα ἁρμόττον εἶναι τοῦ κήπου, μηδὲν περίεργον περὶ τὴν ταφὴν μήτε περὶ τὸ μνημεῖον ποιοῦντας "). Something similar occurs in the wills of the successors of Theophrastus - Straton and Lycon (μήτε ἀνελεύθερος γένηται μήτε περίεργος) 10), while in that of Aristotle ") it is lacking as it is in that of Epicurus 12). frg. CXVII, Wimmer). It is possible, however, that this passage, which is extant in two versions, comes from the work of Theophrastus Περί μέθης.

3) Frg. CLVIII (Stob. Serm., 83 p. 481). - 4) Frg. CLVII (Stob. Serm., 72 p. 439). 5) Stob., Flor., II 31 31. - 6) Diog. Laert., V 5 82. 7) Frg. LXXXVI.

8) Frg. LXXVIII.

9) Diog. Laert., V 53.

The philosophic basis of the prohibition is apparent

from Plato, Laws, XII p. 958 D.

10) Ibid., V 61. 11) Diog. Laert., V 11 ff. 12) Ibid., X 16 ff.