MIRKO CANEVARO HONORARY DECREES AND ON IG II3 1 327; 355; 452 Isbn 9788828803034 Estratto dal volume: DIKE ESSAYS ON GREEK LAW IN HONOR OF ALBERTO MAFFI edited by LORENZO GAGLIARDI and LAURA PEPE 2019 : MIRKO CANEVARO HONORARY DECREES AND ΝΟΜΟΙ ἘΠ᾽ ἈΝ∆ΡΙ: ON IG II3 1 327; 355; 452 1. Introduction. Three Athenian inscriptions, from 336/365 (IG II3 1 327), 335/334 (IG II3 1 452) and 329/328 (IG II3 1 355), have long puzzled scholars. They are all related to honours granted by the Athenian Assembly to benefactors, the last two reporting individual decrees and the first reporting three decrees (one of the Council and two of the Assembly) concerning the same benefactor, part of the same process to enact the relevant honours. The first inscription reports the honorary decrees voted for Phyleus son of Pausanias of Oinoe, secretary of the Council and of the Assembly, and for two of his colleagues; the second the honorary decree for Peisitheides son of Peisitheides of Delos; the third that for a commission of ten (which includes Lycurgus and Demades) elected to organise the agonistic festival of Amphiaraus. These are, to all purposes, rather ordinary honorary decrees: the first inscription, for Phyleus and for his two colleagues, grants them golden crowns worth 1,000 drachmas each and prescribes that the decrees should be inscribed on the Acropolis (at a cost plausibly restored at twenty drachmas each); the second decrees that Peisitheides should become an Athenian citizen (after a necessary further vote in the next Assembly meeting, see below pp. 84-85), that the decree should be inscribed on a stele (at a cost of thirty drachmas), and that Peisitheides should receive a pension of one drachma per day during his Athenian exile; the third stipulates that the ten elected commissioners should receive a golden crown worth 1,000 drachmas, 100 drachmas for a sacrifice, and that the decree should be inscribed in the sanctuary of Amphiaraus (at a cost of thirty drachmas). All the funds to be spent must come, as normal at this time, from the discretionary fund for the decrees (ἐ̓κ τµν κατὰ ψηφίσµατα ˜ναλισκοµένων τµι δήµωι) managed by the ταµίας το¯ δήµου (1). What is puzzling, however, is that in these inscriptions particular sums (and not others) — the 1,000 drachmas for the crown in the first, the daily one-drachma pension in the second, the 100 drachmas for the sacrifice in the third — are only advanced by the ταµίας το¯ (1) See below pp. 72-73 and RHODES 2013, 216-224 for the development of Athenian financial allocations. 72 MIRKO CANEVARO δήµου, but they must actually come from elsewhere (and not ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι): they are special sums that the ˜ποδέκται must allocate to the ταµίας το¯ δήµου especially and specifically to cover these particular items of expenditure. While, for instance, the twenty or thirty drachmas for inscribing the decree, and even (as it appears) the 1,000 drachmas for the golden crown for the commissioners of the festival of Amphiaraus, come from the existing funds allocated to the ταµίας το¯ δήµου, these are instead additional sums. It is clear then that in these three cases (and only in these three cases) the Assembly does not have the authority to order the transfer of these additional sums. For the transfer to be approved it is necessary to hold a vote of the νοµοθέται: IG II3 1 355 (ll. 39-40), for instance, orders that, in the first available session of the νοµοθέται (2), the proposal for the transfer of the relevant sum to the ταµίας το¯ δήµου should be submitted to them, and, likewise, the other two inscriptions order that the πρόεδροι and the ™πιστάτης at the relevant session of the νοµοθέται should put the special allocations of funds requested to the vote (3). Why is that? In the fourth century the Athenians replaced the fifth-century practice of having the ˜ποδέκται pay all the income of the city into one central treasury (no longer attested after 404/403), and started to allocate it (µερίσαι) to various separate funds (which start appearing throughout the fourth century) linked to particular bodies or magistrates. In a given day of each prytany the ˜ποδέκται received the income due to the city and distributed it to the various funds — on the next day they presented the accounts of the allocation to the Council, where they could be accused of mismanagement (4). This allocation of the money to the different funds was not discussed (in the Council and the Assembly) on a monthly or yearly basis, but was enshrined into law — the allocation was fixed (5). This is attested as soon as the year 386/5, when a decree (IG II2 29 = RO 19 ll. 18-22) states: µερίσαι δK τN ˜ργύριον τN εœρηµένον τõς ˜ποδέκτας ™κ τµν καταβαλλοµένων χρηµά[τ]ων, ™πειδὰν τὰ ™κ τµν νüµων µερ[ίσωσι]. Laws (νόµοι) in the fourth century, following the creation of the procedure of νοµοθεσία after the restoration of democracy, were distinguished from decrees (ψηφίσµατα) as higher-order rules enacted, though a different and more complex procedure (νοµοθεσία) by the νοµοθέται, while ψηφίσµατα were enacted (2) For the importance of this provision for our understanding of the procedure of nomothesia, see CANEVARO 2013a, 84; 2013b, 140; 2018a, 90-99, pace HANSEN 2016, which restates the position of HANSEN 1985. In reality, the nomothetai could be summoned at any point of the year, pending a preliminary vote. (3) The πρόεδροι and the ™πιστάτης are not specific to the νοµοθέται, but are the normal officers running the Council and the Assembly, as argued in HANSEN 1978a, whose arguments are strengthened by CANEVARO 2013a, 118-120. Hansen later changed his mind (in HANSEN 1979-1980, 103 n. 17), and agreed with RHODES 1972, 28 and MACDOWELL 1975, 63 that these were different πρόεδροι and ™πιστάτης. (4) See RHODES 2013 for an up-to-date and useful discussion of these developments. (5) On this law, see RHODES 1972, 50 n. 1, 103; HANSEN 1978b; CANEVARO 2013a, 104-112. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 73 through normal procedures by the Council and the Assembly (6). One of the relevant laws, quoted at And. 1.89, Dem. 23.218, 24.30 and Hyp. Ath. 5.22, stated that “no decree, neither of the Council nor of the Assembly, is to have more authority than a law” (7). This is the reason for which the Athenians had to submit the transfer to the νοµοθέται: the Assembly had full discretion on how to use the money ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι, but, in order to transfer more money than originally allocated to that fund, a decree was not enough, because no decree could override a νόµος, and the financial allocation (normally called by scholars µερισµός) was enshrined in law (8). This much is clear. The problem — the puzzle — is that, strictly speaking, for the νοµοθέται to enact such laws — small modifications of the µερισµός for the purpose of funding particular honours for particular individuals — should have been illegal, because another law (enacted after the restoration of democracy) stated that µηδK νόµον ™π᾽ ˜νδρM ™ξε¦ναι θε¦ναι, ™ὰν µL τNν αžτNν ™φ᾽ Qπασιν Ἀθηναίοις (Dem. 23.86, 218; 24.18, 59, 116, 159, 188; 46.12; And. 1.89). This law defined the nature of a νόµος — a general rule — as opposed to a (6) For the reconstruction of this procedure see now CANEVARO 2013a, 80-94; 2013b; 2016a, 12-32; 2016b, strengthened in CANEVARO 2018a, and superseding previous reconstructions: MACDOWELL 1975; HANSEN 1979-1980; RHODES 1985; HANSEN 1985 (restated in HANSEN 2016). For the distinction between νόµοι and ψηφίσµατα see the classic articles HANSEN 1978b; 1979; and now also CANEVARO 2015. (7) See CANEVARO, HARRIS 2012, 116-119; CANEVARO 2015; 2017, 215-216 for this law. (8) It is unclear from the inscriptions why some particular sums needed to be additionally allocated through a specific law modifying the µερισµός, while others were simply payed ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι. WELSER 2011: chs. 2.2.3 and 3 hypothesises (without enthusiasm) that money from this fund could be used only for specific purposes or in specific ways, so expenses for other purposes (or non-standard) had to be drawn from other funds through modifications of the µερισµός (SCHWENK 1985, 102 suggests that these are all permanent increases of the allocation, whether the expense that triggered them was recurrent or not). As there is no sign in the extant evidence that the µερισµός, in addition to allocating money to particular funds (connected to particular bodies or magistrates, and therefore, roughly, to particular functions), also defined in detail the uses allowed, it is equally, if not more, likely that particular sums were requested through modifications of the µερισµός simply because of budgetary constraints: the ταµίας το¯ δήµου and the Athenians certainly knew how much money was available ἐ̓κ τµν κατὰ ψηφίσµατα ἀ̓ναλισκοµένων τµι δήµωι, and therefore knew that occasionally (at particular times, after particularly big expenses, and beyond a certain level of expenditure) they would need ad hoc transfers to afford granting particular honours. HANSEN (2016, 275-276) wonders how the Assembly could be sure that the the νοµοθέται would oblige and simply ‘rubberstamp’ their request — he rightly believes that the νοµοθέται must have had the right to turn the request down. My own guess is that they could be comfortably sure that the request would be upheld because the νοµοθέται were in fact none other than a special session of the Assembly itself (as argued already by PIÉRART 2000), and so the Assembly must have been confident that, in a special session, they would confirm what they had already approved. I make the point that there is no evidence that they were drawn from those who had sworn the Judicial Oath in CANEVARO 2016b, and make a fuller argument for their identification with a special session of the Assembly in CANEVARO 2018a and CANEVARO, ESU 2018. 74 MIRKO CANEVARO ψήφισµα — an ad hoc order addressed to a particular problem or individual — by forbidding the enactment of νόµοι ™π᾽ ˜νδρί. Hansen has long ago demonstrated in two pioneering articles that this rule was followed zealously throughout the fourth century BCE (with the only possible exceptions connected to the emergency of the war against Philip) (9). General rules were always enacted by the νοµοθέται, and νόµοι enacted by the νοµοθέται were always general in scope. Yet the modifications to the µερισµός that the three inscriptions we are discussing require the πρόεδροι and the ™πιστάτης to submit to the νοµοθέται, to be enacted as νόµοι, are aimed at honours for individuals, and therefore (it would appear) are in breach of the prohibition on νόµοι ™π᾽ ˜νδρί. Scholars have proposed two main solutions to this puzzle. Hansen proposed that these “borderline cases” can be explained thanks to a particular rule found in one document (And. 1.87) that seems to qualify the prohibition on νόµοι ™π᾽ ˜νδρί with the further provision ἐ̓ὰν µL ἑ̔ξακισχιλίοις δόξῃ κρύβδην ψηφιζοµένοις: the modifications to the µερισµός were to be approved as νόµοι ™π᾽ ˜νδρί, expressly authorised with a preliminary secret vote with a quorum of 6,000 (10). Rhodes, on the other hand, argued that “what the nomothetai are asked in the three decrees to do is not to ratify the decree but simply to revise the merismos, and I see no reason to believe that these revisions would count as νόµοι ἐ̓π’ ἀ̓νδρί” (11). His interpretation has been restated with further arguments by myself and Harris. Not only have we argued that these modifications to the µερισµός were by no means — were not intended to be — νόµοι ἐ̓π’ ἀ̓νδρί; we have also argued that the document at And. 1.87, where we find the qualification to the prohibition on νόµοι ™π᾽ ˜νδρί on which Hansen’s case rests, is a forgery, and that qualification never existed (12). Hansen has recently restated his own case, bringing further arguments in its favour and countering the arguments made by Rhodes, Harris and myself (13). In this contribution, as a means to celebrate the life-work of another legal historian — Alberto Maffi — who has never shied away from forceful scholarly debate, I examine Hansen’s new arguments and argue, in Section 2, that Hansen’s objections to my assessment of the authenticity of And. 1.87 are without merit, and that no qualification on the prohibition on νόµοι ἐ̓π’ ἀ̓νδρί ever existed. In Section 3 I make the argument that IG II3 1 327, 355 and 452 do not introduce modifi(9) For this rule, see, once again, HANSEN 1978 and 1979, as well as CANEVARO 2015 and 2017, 215-216 for its implications. (10) HANSEN 1979-1980, 90-99; 1985, 360-362. (11) RHODES 1985, 59. (12) CANEVARO, HARRIS 2012, 116-119; more extensively in CANEVARO 2013, 145-150. We are not the first to consider that document a forgery: cf. WAYTE 1882, 137; LEPRI SORGE 1979, 316. And, even among the editors that have accepted the document as authentic, the majority (Schäfer, Lipsius, Taylor, Dindorf) expunge the qualification ἐ̓ὰν µL ἑ̔ξακισχιλίοις δόξῃ κρύβδην ψηφιζοµένοις as spurious. (13) HANSEN 2017. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 75 cations to the µερισµός as νόµοι ™π᾽ ˜νδρί, and do not make use of any ad hoc rule that (allegedly) allowed enacting νόµοι ™π᾽ ˜νδρί in certain circumstances. I leave open the wider issue of how, within the institutional structures that governed this process, this practice of modifying the µερισµός through ad hoc laws may have come about and become established — I plan to discuss this in a further contribution. 2. Were νόµοι ™π᾽ ˜νδρί ever allowed? We know for certain that one of the laws enacted after the restoration of democracy, in the same context in which the procedure of νοµοθεσία was created, stated that µηδK νόµον ™π᾽ ˜νδρM ™ξε¦ναι θε¦ναι, ™ὰν µL τNν αžτNν ™φ᾽ Qπασιν Ἀθηναίοις, because this provision is quoted and discussed at various points in the corpus of the Attic orators (Dem. 23.86, 218; 24.18, 59, 116, 159,188; 46.12; And. 1.89) (14). Not once in these passages this provision is qualified by a special rule allowing the enactment of νόµοι ™π᾽ ˜νδρί with a special procedure — it is not qualified by any such rule also in the document found at Dem. 23.86, in a speech whose documents are normally reliable, and likely to be authentic (15). The rule is always treated by the orators as absolute. Yet in two documents found at And. 1.87 and at Dem. 24.59 this rule is found qualified by a further clause, mentioning a vote by secret ballot with a quorum of 6,000. The clause is in fact found in two different versions in the two documents, and the formulation of Dem. 24.59 does not make any sense — Hansen agrees about this, and chooses therefore to take it out of the picture (16). Harris and I have argued that these documents are not in fact reliable, and that a special procedure to provide a derogation to the prohibition on νόµοι ™π᾽ ˜νδρί never existed. The relevant provision is very short, found at the end of the documents (while the first part of both documents reproduces verbatim the prohibition on νόµοι ™π᾽ ˜νδρί as we find it in the orators), so no arguments based on epigraphical parallels and further direct evidence on it can be made in this instance — it is just not attested elsewhere (17). For these reasons, arguments for or against its authenticity can only trade in probabilities. Hansen does not, strictly speaking, bring any specific evidence to bear on the issue of the authenticity of the provision. His case is built, first, on the argument that IG II3 1 327, 355 and 452 are examples of the use of the procedure described in the relevant clause — I demonstrate in the next section that these decrees did not follow any special procedure, whether such a procedure existed or not. Sec(14) (15) (16) emended (17) See above p. 73-74. See CANEVARO 2013a, 37-76, and 74-75 about this particular document. HANSEN 2017, 278. Hansen believes that the document at Dem. 24.59 should be into authenticity, and made to match the contents of that at And. 1.87. On such arguments see CANEVARO 2013a, 34-35 and now CANEVARO 2018a. 76 MIRKO CANEVARO ond, he contends that my own case against the document relies on a methodological principle that I apply inconsistently. He quotes two passages that should summarise this methodological principle. In the first I state: “the documents should not contradict the information found in their close paraphrases, and should contain all the features there summarized. Sometimes, however, the documents also contain details and provisions absent from their summary. This is often understood as automatic evidence for their authenticity” (18). In the second I observe: “the presence in a document of details and provisions that are not mentioned by the orator in his paraphrase are not automatically evidence of authenticity. They could be and often are the product of the forger’s imagination” (19). Even at a cursory reading, it is clear that my points here are: (1) that scholars that consider the presence in a document of a provision not mentioned in the paraphrase a priori evidence of authenticity are mistaken, because we have plenty of examples of such provisions that are transparently forgeries, the product of the forger’s imagination (for instance from documents found in Dem. 18 that everyone considers forgeries) (20). (2) That such provisions should be carefully assessed against what we know from other texts, because they may be found to be evidence of authenticity, but may equally be (and often are) found to be the most egregious signs of forgery. Hansen, however, somehow takes these two passages to mean that one of my methodological principles is that when we find in a document a provision which is not found in the paraphrase, this is a priori evidence that the document is a forgery. He summarises my argument as follows: “Andokides’ omission in his paraphrase at 89 of the exemption clause in the document at 87 about passing a nomos ep’ andri if allowed by a quorum of 6000 is an example of a provision in a document not mentioned by the orator in his summary of the content of a document he has had read out to the jurors, and accordingly Canevaro rejects the exemption clause as a late forgery (146)” (21). This sleight of hand allows Hansen to declare my approach inconsistent, and he points to my discussion of Diocles’ law at Dem. 24.42 (which I consider authentic despite the fact that it contains provisions not found in the paraphrase) (22) as evidence that I do not always stick to my own principle. But this is a strawman argument — the principle that I allegedly apply inconsistently is Hansen’s own invention. As explained above, the relevant methodological principle is not that provisions found in the documents but not in the paraphrases are a priori evidence of forgery. It is rather that they are not, as Hansen and others have often taken them to be, a priori evidence of authenticity. Such provisions can be evidence (18) (19) (20) (21) (22) CANEVARO 2013a, 32. CANEVARO 2013a, 146. See CANEVARO 2013a, 237-318 passim. HANSEN 2017, 279. CANEVARO 2013a, 121-127. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 77 of either, and one has to look for parallels to confirm or refute their contents, and examine whether their rationale makes sense and whether necessary information is missing from the provision. In this instance, as observed by Rhodes and reiterated by myself, the possibility of enacting a νόµος ™π᾽ ˜νδρί goes against the very principle on which νοµοθεσία was founded in the fourth century, that of the differentiation between νόµοι and ψηφίσµατα in terms of procedure and range of application. Ad hominem measures are invariably enacted as ψηφίσµατα, and IG II3 1 327, 355 and 452 are no exception, as I shall argue in Section 3. The possibility of enacting νόµοι ™π᾽ ˜νδρί would have undermined the whole legal framework behind this distinction, and blurred the boundary between νόµοι and ψηφίσµατα — a blurring of boundaries that is simply not reflected in the available sources, oratorical and epigraphic (23). To this argument, one should add a more technical one: in the other two known instances in which the Athenians used secret ballot with a quorum of 6,000 — eδεια and naturalisation grants — we know that the relevant laws carefully specified in what body the secret vote with quorum of 6,000 was meant to occur, and whether this vote was meant to be one of ratification (as in naturalisation grants) or of authorization (as in eδεια). The provision at in the document at And. 1.87 leaves the reader (and the judge!) wholly in the dark (24). As for checking the provision against relevant parallels, this is difficult to do in this instance, for the obvious reason that the relevant provision, stating that enacting a νόµος ™π᾽ ˜νδρί is allowed if previously authorised with vote of the Assembly by secret ballot and with a quorum of 6,000, is never found anywhere else in our sources. My argument, in this respect, is that the way the law prohibiting the enactment of νόµοι ™π᾽ ˜νδρί is used by the orators in their legal arguments implies that the prohibition is absolute — those arguments would make no sense if a route had existed to pass such laws (25). Hansen, content with refuting a spurious argument that I never made, does not address this issue at all. To summarise my point, Demosthenes’ argument in the context in which the law was quoted at Dem. 24.56 is that the law of Timocrates had been drafted with specific individuals in mind (Androtion, Glaucetes, and Melanopus), and that therefore, given that this law prohibits enacting νόµοι ™π᾽ ˜νδρί, Timocrates’ law must be illegal. He adds that, apart from Timocrates’ intent, the law explicitly singles out tax farmers, lessees, and their sureties, so it is ad hominem. In my original analysis, I pointed out that the argument is very weak as it is — that Timocrates’ intent was ad hominem is Demosthenes’ speculation, (23) See RHODES 1984, 59; 1991, 97-98; CANEVARO 2013a, 148-149. Rhodes does not question the authenticity of the provision, but because it makes no sense in the context of what we know of legislation in the fourth century, he is convinced that it must have been dead letter. (24) CANEVARO 2013a, 149. HANSEN 2017 does not reply to these points. (25) CANEVARO 2013a, 148-149. 78 MIRKO CANEVARO and singling out generic categories of individuals (as laws do all the time) is not the same as passing a νόµος ™π᾽ ˜νδρί. But, if the actual law read out by the secretary (and possibly brought up by Timocrates) had actually stated that νόµοι ™π᾽ ˜νδρί are in fact allowed with a certain procedure, the argument would not have simply been weak; it would have been absurd. Demosthenes’ argument is built on the force of what is presented as inderogable principle. If an exception had existed, all that Demosthenes could have argued would be that there was no vote by secret ballot with a quorum of 6,000 in this instance. Yet he does not (26). He makes a general case that νόµοι ™π᾽ ˜νδρί are forbidden absolutely. My case can be strengthened by a brief discussion of other mentions of the law in other passages in the orators — the relevant law is also cited and discussed at Dem. 23.86, 218, at Dem. 24.18, 116, 159; 188, at Dem. 46.12, and at And. 1.89. In all these instances, the law is presented as an absolute command — νόµοι ™π᾽ ˜νδρί are always forbidden. At Dem. 24.18 Demosthenes states the law ™πM π@σι τNν αžτNν νόµον τιθέναι κελεύει. At Dem. 24.116 Demosthenes combines in a powerful formulation the absolute requirement for laws to be general with the requirement for them to be prospective, and not retroactive: “yet I thought the lawgiver should legislate about the future, the kind of things one should do and how they should be done, and the sort of punishments appropriate for each offense. This is what it means for the laws to be the same for all citizens. To propose laws about the past is not legislating, but protecting criminals” (trans. Harris). At Dem. 24.159 Demosthenes reiterates: “I am quite amazed at the shamelessness of both men [Androtion and Timocrates], the former for asking for his help, the latter for coming forward and joining in his defense. All of you will have clear testimony that this was his aim in passing the law and that he did not pass one that was the same for all” (trans. Harris). Once again, if an exception to the prohibition on νόµοι ™π᾽ ˜νδρί had existed, the problem with Timocrates’ law (even assuming that it was ™π᾽ ˜νδρί) would have been purely procedural: no secret vote with a quorum of 6,000 had been held. But this is not the argument that Demosthenes makes; he argues instead that enacting a νόµος ™π᾽ ˜νδρί is wrong and shameful in absolute terms. And the same reasoning applies to Dem. 24.188: “if you agree that you enacted the law for the benefit of men who you allege have acted correctly, on the same principle you clearly should be convicted because you should not have enacted a law unless it was the same for all citizens; this is stated by the laws in effect, in accordance with which these men have sworn to give judgment” (trans. Harris). The judges have sworn to judge according to the laws, which — the argument goes — state that νόµοι ™π᾽ ˜νδρί are simply not allowed. Likewise, (26) Note that Demosthenes (speciously) brings up such an argument in connection with the law on eδεια at Dem. 24.45, specifically in connection with the requirements of that law (see CANEVARO 2018a, 90-94), but there is no trace of any such argument here, in connection with the law on νόµοι ™π᾽ ˜νδρί. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 79 the rationale for the prohibition on νόµοι ™π᾽ ˜νδρί as presented at Dem. 23.86 (recalled at Dem. 23.218) is incompatible with the possibility to enact a νόµος ™π᾽ ˜νδρί through a special procedure; it is absolute: “just as each man has an equal share in the rest of political life, the man who made this law thought that all must have an equal share in the laws. For this reason he wrote, ‘It is not permitted to enact a law about an individual unless it is the same for all Athenians’” (trans. Harris). There is no room in this formulation for any exception (27). To sum up, the evidence points to the conclusion that no special procedure for enacting a νόµος ™π᾽ ˜νδρί ever existed in Athens. My argument is not, as suggested by Hansen, that the provision with this special procedure is found in one document (and in an unacceptable formulation in another) but not in the relevant paraphrases, and therefore must be spurious. My argument is rather, first, that the existence of such a provision makes no sense within the fourthcentury framework of νοµοθεσία, and undermines the very principle around which it was structured. Second, that whenever the relevant law is discussed, the orators do not simply fail to mention the possibility of enacting a νόµος ™π᾽ ˜νδρί through a special procedure, but they explicitly present the prohibition on νόµοι ™π᾽ ˜νδρί as absolute, and their arguments make no sense whatsoever if such a procedure actually existed. Hansen does not address these arguments and does not examine any of the relevant passages. His case is solely built on the belief that IG II3 1 327, 355 and 452 presuppose and use a procedure for enacting νόµοι ™π᾽ ˜νδρί. In the next section I show that they do not. 3. Were the modifications of the µερισµός in IG II3 1 327, 355 and 452 understood as νόµοι ™π᾽ ˜νδρί. In the previous section I have argued that it is very unlikely that a provision qualifying the prohibition on νόµοι ™π᾽ ˜νδρί ever existed, that the arguments made by the orators that are based on the prohibition on νόµοι ™π᾽ ˜νδρί would become absurd if a procedure existed to enact such νόµοι, and that the document at And. 1.87 reporting that qualification is very likely to be a later forgery. In this section I address Hansen’s second key contention: that IG II3 1 327, 355 and 452 propose modifications of the µερισµός to be enacted as νόµοι ™π᾽ ˜νδρί through a special procedure. My argument is that these modifications are not presented as νόµοι ™π᾽ ˜νδρί, and that the decrees prescribe their enactment through the normal νοµοθεσία procedure. These decrees are not evidence that a special procedure existed to enact νόµοι ™π᾽ ˜νδρί. They are evidence that the practice of enacting ad hoc modifications of the µερισµός, phrased as general transfers of money to particular funds, became consolidated (27) The mentions of this law at And. 1.87 and Dem. 46.12 are so cursory that nothing can be reconstructured from them about whether there was room for exceptions or not. 80 MIRKO CANEVARO throughout the fourth century, and the Athenians came to understand such modifications as not in breach of the prohibition on νόµοι ™π᾽ ˜νδρί. As summarised above, Rhodes’ argument, restated by Harris and myself, is that these modifications of the µερισµός prescribed by the decrees did not reach the νοµοθέται as requests to ratify honorary decrees (by definition ™π᾽ ˜νδρί), but rather as generic changes to a law — the µερισµός. Hansen counters that, for instance “in the honorary decree for Phyleus the purpose of the supplementary law to be passed by the nomothetai is explicitly stated: honouring Phyleus with a golden crown aims to encourage future secretaries to administer in accordance with the laws and to be of use to the Athenian people (IG II3 1 327 ll. 18-21)” (28). Because of this, according to Hansen, by voting the supplementary νόµος, the νοµοθέται “endorsed” the measure, and therefore also its purpose. It is hard to tell what precisely a debate among the νοµοθέται might have looked like, and what kind of considerations must have been relevant in that context — we do not have any evidence for such debates (29). It may be that simple considerations of how useful the measure was for the city were relevant, as in the Assembly; or it may be that they dealt with issues of “constitutionality” and coherence with the existing laws, as in the lawcourts with γραφαM νόµον µL ™πιτήδειον θείναι; perhaps it was a combination of the two (30). Discussion on such a modification of the µερισµός may have concerned, first, whether the Assembly had, generally, the constitutional power to grant such honours; second, whether it was desirable and “constitutional” to honour secretaries of the Council and the Assembly (in general); and, third, whether there was enough money available to grant the transfer requested or not. Unless the modification of the µερισµός itself was phrased, in the law proposal, as an “honorary” law addressed specifically to that particular honorand, Phyleus, there is no reason to think that what the Assembly asked the νοµοθέται to consider was intended, represented and understood explicitly as a νόµος ™π᾽ ˜νδρί. And, in fact, in IG II3 1 327, when the modification of the µερισµός to be submitted to the νοµοθέται comes up (ll. 19-23), we read: τ]οOς προέδρους, οa lν λάχωσι[ν προεδρεύειν ․․․․9․․․․․ τοO]ς νοµοθέτας προσνοµοθετ‰[σαι περM το¯ ˜ναλώµατος, Uπως l]ν καM ο eλλοι ο καθιστάµε[νοι γραµµατε¦ς φιλοτιµµντα]ι πρüς τε τLν βουλLν καM τNν δ[‰µον, eρχειν κατὰ τοOς νüµου]ς καM εzναι χρήσιµοι τµι δήµ[ωι τµι Ἀθηναίων, “the presiding committee allotted to preside . . . shall bring before the lawmakers an amendment to the law about the expenditure so that others who are appointed [secretaries] may [show love of honour] towards the Council and the People, [in performing their office according to the law]s (28) HANSEN 2017, 276. (29) I plan to discuss these issues in a future book on νοµοθεσία. (30) For the γραφή νόµον µL ™πιτήδειον θείναι as “constitutional” judicial review, see CANEVARO 2018b. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 81 and in being useful to the Athenian People” (trans. Lambert). Everything in these lines (which prescribe what should be drafted in the modification law) (31) is phrased in general terms, with care paid to avoiding any mention of the particular honorand: the purpose of the change in the µερισµός is explicitly expressed as that of encouraging civic behaviour in secretaries in general, not of securing enough money to give Phyleus his golden crown. Contrast this with ll. 42-46, part of the original decree of the Council praising Phyleus and starting the whole procedure, and proposing that the Assembly should do the same: Uπως δ’ lν καM Ž 䉵ος αžτNν τιµήσ]ηι, τοOς προέδρους, οa lν λ[άχωσι προεδρεύειν εœς τLν πρώτην] ™κκλησίαν, χρηµατίσαι π[ερM αžτο¯, γνώµην δK ξυµβάλλεσθαι] τ‰ς βουλ‰ς εœς τNν 䉵ον, U[τι δοκε¦ τ‰ι βουλ‰ι εzναι αžτµι ε]ρέσθαι παρὰ το¯ δήµου ˜γ[αθNν U τι lν δύνηται, “in order that the People may also honour him, the presiding committee allotted to preside in the next Assembly shall put his case on the agenda and submit the opinion of the Council to the People that it seems good to the Council that he should be permitted to obtain from the People whatever benefit he can” (trans. Lambert). Here, like at ll. 19-23, we have one body prescribing that a particular proposal should be submitted by the πρόεδροι to another body (here the Council to the Assembly; at ll. 19-23 the Assembly to the νοµοθέται). The difference is that in this instance the proposal to be made is phrased to focus specifically on Phyleus, while at ll. 19-23 the phrasing remains studiously general. Likewise, at ll. 53-58, in another connected decree part of the same inscription, the Assembly prescribes that “the Council shall decide: that [the presiding committee] allotted to preside in the next Assembly shall bring them before the People and put their case on the agenda and submit the opinion of the Council to the People that it seems good to the Council to praise Phyleus son of Pausanias of Oinoe for his excellence and justice and crown him [with a gold crown” etc. (trans. Lambert; δεδ[üχθαι τ‰ι βουλ‰ι· τοOς προέδρους, οa lν λάχωσι προε[δρ]εύε[ι]ν [εœς τLν πρώτην ™κκλησίαν, προσαγα]γε¦ν αžτοOς πρ[Nς τNν 䉵ον καM χρηµατίσαι, γνώµην δK ξυµβάλ]λεσθαι τ‰ς β[ουλ‰ς εœς τNν 䉵ον, Uτι δοκε¦ τ‰ι βουλ‰ι ™παινέ]σαι Φυλέα Π[αυσανίου Ϝνα¦ον ˜ρετ‰ς Rνεκα καM δικαιοσύνης κ]αM στεφαν[µσαι χρυσµι στεφάνωι). Once again, a body (the Assembly) prescribes what should be submitted to another body (the Council) and what that body should approve, and the focus is entirely on the individual honorand. The contrast with ll. 19-23, which studiously keeps the formulation general, is stark, and strongly suggest that, pace Hansen, the proposal of modification of the µερισµός, far from being presented and understood as a νόµος ™π᾽ ˜νδρί, was carefully drafted not to appear like one. (31) HANSEN 2017, 276-277 seems to suggest that the νοµοθέται would be asked to ratify the decree itself, but that is clearly not the case — a specific bill is to be presented to them, in accordance with the specifications detailed in the decree. 82 MIRKO CANEVARO Hansen’s other example, IG II3 1 452, once again fails to support his contention that these modifications of the µερισµός were presented, intended and understood as νόµοι ™π᾽ ˜νδρί. He states that “in the citizenship decree for Peisitheides the demos asks the future proedroi of the nomothetai and their epistates to have a supplementary law passed (prosnomothetesai), and the content of that nomos is specified in the text: to order the apodektai every year to transfer the money in question to the tamias tou demou and to order the tamias to pay out the money to Peisitheides by the prytany. If the proedroi and their epistates do not put such a supplementary law to the vote, each will be fined 1000 dr. to be paid to Athena. The reference to the apodektai, the tamias, and the proedroi of the nomothetai are general aspects of the nomos. But the supplementary law is a nomos ep’andri in so far as Peisitheides is singled out by name as the beneficiary of the supplementary nomos” (32). Here Hansen misunderstands the grammar of the inscription, in reading all that follows ™ν δK το¦ς νοµοθέταις τ[οOς προέδ]ρους, οa lν προεδρεύωσιν, [καM τNν ™]πιστάτην προσνοµοθετ‰[σαι at ll. 41-42 as the content of the supplementary νόµος to be approved by the νοµοθέται — both τN ˜ρ]γύριον το¯το µερίζειν τ[οOς ˜ποδ]έκτας τµι ταµίαι το¯ δήµ[ου εœς τN]ν ™νιαυτNν Rκαστον and the following Ž δK τ[αµίας ˜π]οδότω Πεισιθείδει κατά [τήν πρυτ]ανείαν Šκάστην. Because this second provision mentions explicitly Peisitheides, the law to be submitted to the νοµοθέται must be a νόµος ™π᾽ ˜νδρί. In fact, the verbal usage in the decree should have alerted Hansen to the fact that only the first of the two provisions is in fact the object of προσνοµοθετ‰σαι, not both. All the infinitives that we find in the decree (indicating its provisions), up to προσνοµοθετ‰σαι, are governed, as normal in decrees from Athens and elsewhere, by an enactment clause such as δεδόχθαι τµι δήµωι (this is in lacuna in the inscription, but we know it must have been in the decree). All these infinitives are in the aorist (to indicate the punctual act of promulgation) προσνοµοθετ‰σαι at l. 43 is no exception, but µερίζειν at l. 44 is the only present infinitive, and is not governed, as the others, by the enactment formula of the decree, but rather by προσνοµοθετ‰σαι itself. After that, the inscription moves from infinitives to imperatives (ἀ̓ποδότω at l. 47 and φειλέτω at ll. 50-51), which can only indicate, as they are found in the decree, direct commands of the decree (and not indirect commands to be approved elsewhere, hypothetically, in the future). The move to the imperatives is in fact probably an attempt to avoid confusion, because further aorist infinitives after προσνοµοθετ‰σαι may have been misunderstood as objects of προσνοµοθετ‰σαι, and therefore as the contents of the law still to be approved (by the νοµοθέται), and not of the decree currently being approved. It is clear therefore that the order expressed by ἀ̓ποδότω at l. 47 is not (as µερίζειν at l. 44 was) part of the law to be approved by the νοµοθέται, (32) HANSEN 2017, 277. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 83 but part of this very decree. And that this is the case is even clearer because of the second imperative, φειλέτω, at ll. 50-51: the fine prescribed by this imperative is intended for the πρόεδροι and the ™πιστάτης meant to submit the supplementary law to the νοµοθέται (if they fail to do so), and can only therefore be part of the decree itself, not of the supplementary law to be approved — that would be absurd! To sum up, Hansen’s attempt to argue that the supplementary laws that these decrees ordered to submit to the νοµοθέται were phrased as νόµοι ™π᾽ ˜νδρί, with explicit or implicit reference to the actual honorands, is misguided, based on the misreading of the relevant inscriptions. Hansen is moreover aware that “none of the three decrees specifies that the decision to refer the case to the nomothetai must be approved by the majority of a quorum of 6000 citizens, as prescribed in the law quoted in Andokides”. If these additional νόµοι were νόµοι ™π᾽ ˜νδρί to be approved with a special procedure involving a preliminary vote by secret ballot with a quorum of 6,000, we should expect the decrees to mention this vote. Hansen counters, however, that “similarly the provision that a citizenship decree must be ratified by a majority of a quorum of 6000 is not mentioned in any of the citizenship decrees preserved on stone” (33). This is simply not true: the ratification vote is in fact explicitly mentioned, with the same formula (τοOς δK πρυτάνεις δο¯ναι περM αžτο¯ τLν ψ‰φον τµι δήµωι εœς τLν πρώτην ™κκλησίαν), in all 80 extant naturalisation decrees between 385/384 and 229 BCE (34)! The formula does not explicitly state that the vote should be secret and with a quorum of 6,000, but this was clearly understood — that was the only form of ratification available for citizenship grants according to the relevant law, discussed at [Dem.] 59.89. I should add that, also in the other instances in which we know that the Athenians used a vote by secret ballot with a quorum of 6,000, that vote is normally mentioned explicitly. This is the case with eδεια, used in the fourth century to authorise discussion, proposals and votes on matters pertaining eτιµοι and public debtors, and in the fifth century, for instance, prescribed in Callias’ decree (IG I3 52 ll. 16-18) (35). In the accounts of the treasurers of Athena (IG I3 370), when eδεια is needed in accordance with Callias’ decree, it is explicitly mentioned (ll. 15; 30; 63-64; and possibly elsewhere). Likewise, the law preserved in a reliable document at Dem. 24.45, to do with eτιµοι and public debtors, requires a preliminary vote of eδεια and explicitly mentions that the vote should be secret and with a quorum of 6,000 (36). In fact, even the decree of Patrocleides about eτιµοι and public debtors, which I believe to be a (33) HANSEN 2017, 278. (34) These are items D10 to D89 in OSBORNE 1981-1983, which reports the formula (as A 3) usefully in the checklist at pp. 16-22 of volume I. (35) On fourth-century eδεια see CANEVARO 2013a, 127-132. On fifth-century eδεια see ESU forthcoming. (36) On this law see CANEVARO 2013a, 127-132. 84 MIRKO CANEVARO forgery but Hansen believes to be authentic, explicitly mentions the preliminary vote of eδεια by secret ballot and with a quorum of 6,000 (37)! Pace Hansen, when the Athenians need to hold, or have held, a vote by secret ballot and with a quorum of 6,000, they say so. The standard ratification formula for naturalisation decrees (τοOς δK πρυτάνεις δο¯ναι περM αžτο¯ τLν ψ‰φον τµι δήµωι εœς τLν πρώτην ™κκλησίαν) which refers to the vote by secret ballot with a quorum of 6,000 at the next Assembly meeting, is in fact found also in one of the inscriptions discussed in this article, IG II3 1 452, which grants citizenship to Peisitheides of Delos. The decree explicitly prescribes that “the πρυτάνεις shall put the vote about him [i.e. about his citizenship] to the People at the next Assembly” (ll. 24-25: τοOς δK πρ[υτ]άνεις δο¯ναι περM αžτο¯ τLν ψ[‰φ]ον τµι δήµωι εœς τLν πρώτην ™κκλ[ησ]ίαν). By citing the vote of ratification, the decree (as all naturalisation decrees!) scrupulously notes the need for a secret vote of ratification with a quorum of 6,000. IG II3 1 452 enacted two main separate measures — citizenship, and the one-drachma pension — both requiring a further step to be conclusively approved and operative: the ratification of citizenship in the next Assembly meeting; and the vote of the νοµοθέται on the modification of the µερισµός. If Hansen were right and the Athenians were in fact using a special procedure for νόµοι ἐ̓π’ ἀ̓νδρί involving authorisation by secret vote to enact the modification of the µερισµός, we should expect the drafter of the decree to be as scrupulous about this side of the procedure as with the naturalisation side, and therefore to mention that a preliminary secret vote in the Assembly (with a quorum of six thousand) was necessary before the νοµοθέται could examine the proposal for the modification of the µερισµός, in the same way as he mentions that a similar vote is necessary for ratifying the grant of citizenship (38). Yet he does not. On the contrary — and this is even more decisive — the decree (ll. 48-53) prescribes that the πρόεδροι and the ™πιστάτης, if they fail to put the request to (37) CANEVARO, HARRIS 2012, 100-110, with counter arguments in HANSEN 2015. See now CANEVARO, HARRIS 2017 for a full rebuttal and for additional arguments that strengthen the case against authenticity. (38) HANSEN 2017, 277-278 seems to imply that the same secret vote with a quorum of 6,000 meant to ratify the citizenship grant would have also been understood as authorising the discussion before the νοµοθέται of the νόµος ἐ̓π’ ἀ̓νδρί. This is impossible, for various reasons: first, these are two separate measures, which could not be conflated — what if the Athenians at the next Assembly were still happy to ratify the citizenship grant but chose to object to the νόµος ἐ̓π’ ἀ̓νδρί which modified the µερισµός for the purpose of providing the pension? They would have to accept or reject both. Second, these are two separate procedures, completely different from one another — one is a vote ex post integrated in the normal Assembly procedure; the other a vote ex ante part of the νοµοθεσία procedure. Third, the secret vote with a quorum of 6,000 is mentioned specifically in the decree in connection with citizenship. The issue of the pension, and of the procedure to provide the funds for it, comes later, in a completely separate section of the decree — the two sections are not meant to be connected, but rather to define what was needed respectively to complete the enactment of the two separate measures. HONORARY DECREES AND ΝΟΜΟΙ ἘΠ’ ἈΝ∆ΡΙ 85 the vote before the νοµοθέται at the first available session, should be fined 1,000 drachmas each. The prescription is phrased as direct and absolute, not as conditional on a successful preliminary secret vote with a quorum of 6,000 in the Assembly, and it would be absurd if the very possibility for the πρόεδροι and the ™πιστάτης to bring the proposal to the νοµοθέται depended on a preliminary vote in the Assembly, on which πρόεδροι and ™πιστάτης had no control. It would be paramount to forcing them to break the law in order to avoid the fine! To conclude, pace Hansen, IG II3 1 327, 355 and 452 did not prescribe that the πρόεδροι and the ™πιστάτης should submit modifications of the µερισµός to the νοµοθέται as νόµοι ™π᾽ ˜νδρί, to be enacted through a special procedure dedicated to νόµοι ™π᾽ ˜νδρί, and involving a preliminary vote by secret ballot with a quorum of 6,000. These modifications were instead intended, presented and understood as general νόµοι, and as such were to be enacted through the normal procedure of νοµοθεσία. There was no specific rule, in Athenian law, making an exception to the fundamental rule that νόµοι ™π᾽ ˜νδρί were forbidden. The solution to the puzzle of these three decrees is not to postulate a specific rule — a procedure — that made what they proposed acceptable and legal. We should rather focus on the phenomenon itself: throughout the fourth century institutional practices connected to νοµοθεσία developed in such a way as to “normalise” ad hoc modifications of the µερισµός law, without anybody (apparently) challenging them in court as ad hoc and therefore incompatible with the status of laws. This is the phenomenon I plan to investigate next (39). Bibliography CANEVARO 2013a = M. CANEVARO, The Documents in the Attic Orators: Laws and Decrees in the Public Speeches of the Demosthenic Corpus, Oxford 2013 CANEVARO 2013b = M. CANEVARO, Nomothesia in Classical Athens: What Sources Should We Believe?, in CQ 63 (2013) 139-160 CANEVARO 2015 = M. 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