1

Following the idea first expressed by Heinrich Swoboda, there is a general perception that the meaning of ἀτιμία in Athens eventually evolved from the original ‘outlawry’, when an ἄτιμος was liable to being deprived of his property and slayed with impunity if he returned to the land from which he had been banished, into a certain limitation on civic status, which has often been rendered as a ‘disfranchisement’.Footnote ¹ Specific outcomes of this later form of ἀτιμία varied depending on the dating and circumstances of individual cases, thereby giving rise to theories of a so-called full – or ‘total’ – and partial ἀτιμία.Footnote ² Still, whether it was viewed as ‘full’ or ‘partial’, this ἀτιμία did not inflict the death penalty. The precise dating of the transformation of ἀτιμία has also been debated, with opinions ranging from pre-Solonian times (L'Homme-Wéry) to the late sixth (Swoboda, Hansen, Manville) or the late fifth century (Scafuro). While the exact dating is unknown, this transformation was definitely over in the fifth century, when inscriptions and literary texts mentioned punishment by ἀτιμία alongside the death penalty and the confiscation of property.Footnote ³ Thus, according to Raphael Sealey, ἀτιμία evolved ‘from a more severe to a milder sense’, and Alick R.W. Harrison pointed to the evidence that, by the fourth century, any willing Athenian could seize an ἄτιμος who happened to be in Athenian territory and surrender him to the θεσμοθέται, instead of killing him.Footnote ⁴

Later studies have developed the theory put forward by Swoboda in more than one way. In a major departure from Swoboda's vision of ἀτιμία as a punishment ‘with impunity’ and ‘without a compensatory fine’, Mogens H. Hansen held ἀτιμία as ‘a penalty implying a loss of honour in addition to the loss of rights’, and Alberto Maffi distinguished between what might be called legal and moral perceptions of ἀτιμία, with reference to the Homeric poems, which described the societal use of this practice as bringing dishonour.Footnote ⁵ Subsequent publications have accepted this dual approach with various degrees of modification: Elisabetta Poddighe saw ἀτιμία as defining one's moral and legal conditions, and, more recently, Evelyn van ᾿t Wout similarly questioned whether ἀτιμία was a legal concept from its starting point. Instead, she proposed to ‘distinguish between a legally defined technical usage of the term ἀτιμία and its cognates on the one hand (“disfranchisement”), and a non-technical usage (“dishonour”) on the other’.Footnote ⁶ Others, too, have interpreted the original meaning of ἀτιμία as ‘public infamy’ (Humphreys) or ‘dishonor’ (Youni), and suggested that ἀτιμία gradually transformed into the ‘deprivation of specific civic rights’ (Humphreys) or the ‘loss of all privileges composing citizenship’ (Youni), thus developing into a legal concept. This approach has also been pursued by Manville, who linked the evolution of ἀτιμία with the growth of Athenian citizenship. He proposed that ‘over time ἀτιμία became not a different and milder penalty, but one more sharply defined’. In his opinion, the perception of ἀτιμία evolved together with the ‘redefinition of civic membership’, so that ἀτιμία ‘was now largely irrelevant to a man with little or no rights in the city’.Footnote ⁷

Regardless of whether they have accepted Swoboda's idea or modified it in some way, modern studies still have not solved two major problems concerning the nature of ἀτιμία. The first is that the understanding of ἀτιμία as a penalty that inflicted death with impunity survived in later times.Footnote ⁸ One such example is provided in Herodotus' story about Lycides, an Athenian councillor who was immediately stoned to death once he proposed accepting the Persian offer delivered by Mardonius in 479.Footnote ⁹ Archeptolemus and Antiphon were condemned to capital punishment, confiscation of all property, demolition of their houses, deprivation of the right of burial in Attica, and ἀτιμία extended to descendants for their participation in the oligarchy of 411.Footnote ¹⁰ Although cases of bribery by Athenian officials and ambassadors were typically punished by fines in the classical period, if they could be presented as a high treason, they called for punishment by death. Thus Aristophanes was summarily executed and his property confiscated after he had been accused of high treason in connection with his embassy to Euagoras in 390. When Lycurgus, Dinarchus, Lysias and Demosthenes urged the Athenian assembly to inflict the death penalty on their political enemies, whom they accused as traitors and thus decried as liable to the punishment of ἀτιμία (see Section 2 below), this was not mere rhetoric. In what looks like a similar case, having been condemned for high treason, Phocion preferred to go in exile, only to be returned to Athens by force and put to death.Footnote ¹¹ Elsewhere, the Greeks of that time also seem to have understood ἀτιμία as the status that left its holder unprotected from being murdered with impunity.Footnote ¹²

The other problem is that foreigners, too, could be declared ἄτιμοι. Demosthenes' third speech against Philip mentioned an Athenian decree condemning a certain Arthmius of Zelea, who brought Persian gold to the Peloponnesus, probably in the 470s, as ‘an outlaw and enemy of the Athenian people and its allies, himself and his family’ (ἄτιμος καὶ πολέμιος τοῦ δήμου τοῦ Ἀθηναίων καὶ τῶν συμμάχων αὐτὸς καὶ γένος, 9.42). Demosthenes confirmed that this perception of ἀτιμία was not the same as that of the ἀτιμία of his own time (τοῦτο δ’ ἐστὶν οὐχ ἣν οὑτωσί τις ἂν φήσειεν ἀτιμίαν, 9.44), since the decree allowed anybody to kill Arthmius, and members of his family, without being prosecuted for murder, if Arthmius ever stepped on Attic soil: ‘anyone who has killed them shall be free from pollution’.Footnote ¹³ Christian Habicht rejected the historicity of Arthmius' ἀτιμία because the earliest documented use of the word πολέμιος in the sense of a ‘(public) enemy’ is thought to have been the so-called decree of Demophantus (410), which is referred to in the speech of Andocides On the Mysteries (1.95–97) from 399 (see below), and because the earliest evidence for the story of Arthmius, and of Lycides, belongs to the second half of the 300s.Footnote ¹⁴ However, if, as we have seen above, the meaning of ἀτιμία had changed by or in the fifth century, Demosthenes and his contemporaries reinforced its original significance by speaking of the ἄτιμος as a public enemy.Footnote ¹⁵ The anachronistic use of new terminology in later texts does not, by itself, invalidate the historicity of earlier events described in these texts.Footnote ¹⁶ We also need to distinguish carefully between the event and its later interpretation. Even if decrees about the ἀτιμία of Lycides and of Arthmius were inventions that reflected a practice not established until later (see below),Footnote ¹⁷ this alone neither can nor does overturn the historical actuality of those events.

Recent studies have acknowledged the ἀτιμία of Arthmius, even though he was not an Athenian citizen. Manville spoke of the ἀτιμία of Arthmius as ‘one exception’. Scafuro, who believed that ‘in the later fifth century, ἀτιμία meant the abrogation of all or some of the rights attached to citizenship’, thus also effectively denying the application of ἀτιμία to foreigners, still also accepted the historical authenticity of the ἀτιμία of Arthmius.Footnote ¹⁸ Such references provide no rationale for this alleged exception, and ignore both inscriptional and literary evidence about ἀτιμία still being imposed on other non-Athenians in the fifth and fourth centuries.Footnote ¹⁹ Neither Swoboda's theory nor its subsequent modifications have succeeded in explaining the evidence for the survival of ἀτιμία as a penalty that inflicted death with impunity or for the use of ἀτιμία as a punishment for non-citizens, although these aspects of ἀτιμία offer an important insight into its nature and development. By reconsidering relevant evidence, the present article attempts to explain why ἀτιμία continued to be used in such diverse ways in classical Athens.

2

The survival into later times of ἀτιμία as a penalty that inflicted death with impunity has allowed some to propose that the difference between ‘archaic’ and ‘classical’ ἀτιμία was ‘not as radical as often assumed’.Footnote ²⁰ Thus, Hansen believed that ‘atimoi in the fourth century were de facto legally unprotected’, and that some ἄτιμοι considered or chose exile over the risk of remaining in Attica. Manville likewise thought that ‘through history atimos remained outside the law’, even if his life and security were not immediately threatened, and Carawan held the same opinion.Footnote ²¹ Rhodes took the approach that ‘when the offence is treason and revolution, and the penalty includes death, confiscation of property, and extension to the whole family, the stronger sense of the word [atimia] is surely likely’. This view, which has also been shared by others,Footnote ²² implies that the gravity of the offence made the difference, and that the nature and development of ἀτιμία can, thus, best be seen with reference to Athenian regulations against tyranny and subversion. When arranged in chronological order, evidence for such regulations looks like this:

1. (i) Athenian ‘laws against tyrants’ (οἱ περὶ τῶν τυράννων νόμοι) attributed to Solon, which Aristotle mentioned in the context of his overview of Peisistratus' regime:

   These are the ordinances and ancestral principles (θέσμια πάτρια) of the Athenians: if any persons rise in insurrection in order to govern tyrannically, or if any person assists in establishing the tyranny, he himself and his γένος shall be ἄτιμοι (ἄτιμον εἶναι αὐτὸν καὶ γένος) …;Footnote ²³

2. (ii) a restored Athenian decree, dated to 470–460, which seemingly suggested the punishment by death for anyone who attempted to establish a tyranny in Erythrae, and his progeny: [κ](αὶ) [οἱ] παῖδε(ς h)οι ἐχς ἐ(κ)είν(ου);Footnote ²⁴

3. (iii) the law against the suppression of the democracy and the above-mentioned so-called decree of Demophantus (410), known from the speech by Andocides On the mysteries (1.95), dated to 399, in which the speaker makes the following statement: ‘… what does the law (νόμος) say, the one inscribed on the stone in front of the Council-house? “Anyone who holds office in the city when the democracy has been subverted (τῆς δημοκρατίας καταλυθείσης) may be killed with impunity, and the killer shall be free from guilt and shall possess the dead man's property”. So, isn't it the case, Epichares, that anyone who kills you now will have untainted hands, according to Solon's law (κατά γε τὸν Σόλωνος νόμον)’? The speaker then asked the clerk to read the text of the law (νόμον), which appears to have included the decree (τοῦ ψηφίσματος), framed by Demophantus and his colleagues in the following fashion (1.96–8):

   If anyone subverts the democracy at Athens or holds any office when the democracy has been subverted, he shall be regarded as an enemy of the Athenians (πολέμιος ἔστω Ἀθηναίων) and may be killed with impunity, and his property shall be confiscated and a tenth part of it devoted to the Goddess; and he who kills or helps to plan the killing of anyone who does that shall be pure and free from guilt. All Athenians shall swear over unblemished victims by tribes and by demes to kill anyone who does that … and they shall pray that he who keeps his oath may have many blessings, but that he who breaks it may suffer destruction, both himself and his family (ἐξώλη αὐτὸν εἶναι καὶ γένος);Footnote ²⁵

4. (iv) and the Athenian law (νόμος) against tyranny republished in 337–336, with the stipulation that

   if anyone rise up against the Demos for tyranny or join in establishing the tyranny or overthrow the Demos of the Athenians or the democracy in Athens, whoever kills him who does any of these things shall be blameless. It shall not be permitted for anyone of the Councillors of the Council from the Areopagos – if the Demos or the democracy in Athens has been overthrown – to go up into the Areopagos or sit in the Council or deliberate about anything. If anyone – the Demos or the democracy in Athens overthrown – of the Councillors of the Areopagos goes up into the Areopagos or sits in the Council or deliberates about anything, both he and his progeny shall be ἄτιμοι (ἄτιμος ἔστω καὶ αὐτὸς καὶ γένος τὸ ἐξ ἐκείνου) and his substance shall be confiscated and a tenth given to the Goddess.Footnote ²⁶

Some of these texts refer to ἀτιμία as a punishment extended to the entire family, while others speak of the penalty by death, without mentioning ἀτιμία. Thus, the Athenian θέσμια against tyrants (= [i] above) did not make clear if the punishment of the entire family by ἀτιμία meant banishment or a death penalty, whereas the restored Athenian decree, dated to 470–460 (= [ii] above), inflicted a death penalty on anyone who attempted to establish tyranny, evidently without making any reference to ἀτιμία. The law quoted by Andocides threatened anyone who occupied a public office after the overthrow of democracy with death, whereas the decree of Demophantus established the same penalty also for those who helped to overthrow democracy, and extended that penalty to the posterity of such people (= [iii] above). Neither document used the word ἀτιμία, at least judging by what we read in the text. The Athenian law against tyranny from 337–336 (= [iv] above) similarly punished anyone who helped to overthrow democracy by death with impunity, while imposing ἀτιμία on the entire family of the people who occupied official positions or participated in public life after the overthrow of democracy. However, just as in the case of the Athenian θέσμια against tyrants (= [i] above), the actual meaning of that ἀτιμία remains unclear.

Was ἀτιμία juxtaposed with punishment by death, or was it merely implied in such cases? Were these discrepancies or omissions? Did this situation have anything to do with the fact that some such regulations took the form of laws, while others were issued as decrees? This body of evidence has been considered together in a very indiscriminate fashion, by using the generalizing concept of ‘legislation’. Thus, a major debate on dating Athens' legislation against tyranny and subversion has ascribed its authorship either to the θεσμοθέται in the period before Draco (Gagarin) or to Draco (Ostwald, Gallia) or to Solon (Meritt).Footnote ²⁷ However, the former opinion cannot be verified with certainty, because Gagarin's reference to the θέσμια πάτρια in Arist. Ath. Pol. 16.10 (= [i] above) as being decisions of pre-Draconian court cases has been disputed; even Gagarin himself has acknowledged this opinion as a speculation.Footnote ²⁸ It is safe to say, in general terms, that the earliest Athenian regulations against tyranny and subversion predated Solon's reforms, because we know that Solon's amnesty law pardoned all ἄτιμοι, except those punished for murder, slaughter and tyranny:

Solon's amnesty law provides no precise indication about the authorship and dating of the Athenian legislation against tyranny and subversion. Martin Ostwald has attempted to ascribe this legislation to Draco on the basis of the evidence from Arist. Ath. Pol. 16.10 (= [i] above, i.e. the same evidence Gagarin wanted to use in support of a pre-Draconian dating) and the decree of Demophantus (= [iii] above).Footnote ³⁰ However, neither of these texts offers firm grounds for dating the origins of the regulations they contain: the former text has been defined by Rhodes very broadly as a ‘reaffirmation of an ancient law’, while a recent study has interpreted the regulation mentioned in the decree of Demophantus together with Solon's law on stasis as ‘a fourth-century reformulation of Solonian ideas in the form of a law’.Footnote ³¹

Still trying to ascribe the Athenian legislation against tyranny and subversion to Draco, Ostwald made an attempt to present that legislation as a part of Draco's homicide law, since, as is generally agreed, only that law was retained by Solon.Footnote ³² Hence, according to Ostwald, Solon took over legislation against tyranny and subversion as a part of Draco's homicide law.Footnote ³³ Michael Gagarin's response was that if legislation against tyranny and subversion made up a part of Draco's homicide law, Solon would have preserved it unaltered; otherwise, it would have been effaced.Footnote ³⁴ However, here too any definitive conclusion is made impossible by the state of our evidence: we know neither if Draco's legislation was limited to homicide or if only that part of his laws was retained by Solon,Footnote ³⁵ nor if Solon borrowed earlier laws against tyranny and subversion. Some evidence, in fact, supports the view that Draco's homicide law did not include legislation against tyranny and subversion: the punishment of Archeptolemus and Antiphon, and the issuing of the decree of Demophantus happened without any reference to Draco's law on homicide,Footnote ³⁶ and, once the latter law was republished – more or less verbatim, as has been claimedFootnote ³⁷ – in 409–408, it contained no reference to tyranny, although, it must be admitted, the surviving text of this inscription is only a fragmented part of the original.

A compromise suggestion by Edwin M. Carawan that ‘if indeed the original tyranny law was part of the [Draco's] homicide code, there is every reason to suppose that it too would have been retained unaltered, though superseded by later amendments’ has not solved the problem of dating Athenian legislation against tyranny and subversion. But the idea that this legislation evolved over time looks attractive, because the same can be said about other Athenian laws. Thus, Solon's own laws are thought to have been transformed and adjusted over the course of Athenian history, allowing us to see only what Scafuro has defined as an ‘authentic Solonian kernel’.Footnote ³⁸

A closer look at Athenian regulations against tyranny and subversion reveals that they formed two distinct groups. The first group was comprised of specific decisions on individual events and personalities, as, for example, the decree on the death of Lycides (and members of his family); the verdict concerning Arthmius of Zelea from the 470s (?); the restored Athenian decree dated to 470–460 (= [ii] above); the decree punishing those Athenians who withdrew to safety in Decelea in 413, when Athens was being besieged by the Spartans; the decree punishing Archeptolemus and Antiphon for treason (411); the so-called decree of Demophantus (= [iii] above); the decree honouring Thrasybulus and his accomplices for the murder of Phrynichus, whom the Athenians decreed to have been a traitor; the decisions from the fourth century on Taurosthenes of Chalcis, Euthycrates of Olynthus and Phocion, who was condemned for his alleged high treason by a show of hands, according to a special ψήφισμα adopted by the people; and the summarily execution of the people who fled Attica after Philip's victory at Chaeronea, according to the decree adopted by the Athenians.Footnote ³⁹ If some decrees relevant to earlier episodes, like those of Lycides and Arthmius, were indeed later inventions (as has been asserted by Habicht and those who follow him), this only confirms that the practice of issuing ad hoc decrees in such cases was typical of the classical period.Footnote ⁴⁰

The second group embraced general regulations in the form of laws that became modified over the course of time. Thus, the regulation quoted as the Athenian law against tyranny and subversion by Arist. Ath. Pol. 16.10 (= [i] above) has been attributed to pre-Draconian θεσμοθέται by Gagarin, and to Draco by Ostwald. While the exact dating of this regulation is unknown, it certainly antedated Solon's legislation, even though it has been acknowledged as a part of Solon's laws by Martina and Ruschenbusch. Likewise, the law quoted in the decree of Demophantus (see [iii] above) could not be the law authored by Solon for several reasons: it used the later expression ‘public enemy’ (πολέμιος); this decree required all Athenians to take a special oath (which would have been unnecessary if a separate law to that effect existed) by tribes and by demes; and the demes only became political entities after Cleisthenes' reform. Also, although the decree of Demophantus appealed to the authority of Solon's law against tyranny, this decree evidently quoted from the law protecting democracy.Footnote ⁴¹ The same is true for the law republished in 337–336, which juxtaposed establishing the tyranny to the overthrow of democracy (see [iv] above).Footnote ⁴² The Athenians, thus, tailored earlier laws against tyranny and subversion to new political realities, regardless of whether the old law became reinterpreted over time or whether a new (or modified) law was retrospectively ascribed to a revered lawgiver,Footnote ⁴³ just as Solon's laws were retrospectively interpreted as having established democracy.Footnote ⁴⁴

Curiously, the emphasis on protecting democracy was almost totally lacking in specific decrees against tyranny and subversion. We see it only in the decree of Demophantus, and it is likely that the decree against Taurosthenes also focussed on accusing him of being an enemy to Athenian democracy, since Dinarchus (1.44) ridiculed the democratic stance taken by Demosthenes, who proposed to give πολιτεία to Taurosthenes. However, except in these two cases, no immediate connection can be traced between Athenian laws against tyranny and subversion and specific decrees that were adopted for particular events. The earliest known such decrees belong to the early fifth century and, therefore, they offer no help for establishing when the Athenian legislation against tyranny and subversion emerged. A much-disputed reference to θέσμια πάτρια in Arist. Ath. Pol. 16.10 (= [i] above), and the information about Solon's amnesty law from Plutarch – whose reliability as a source for this law is doubtedFootnote ⁴⁵ – have been the only available evidence for dating the origins of that legislation to pre-Solonian times.

3

A further piece of evidence, however, which has so far been neglected, similarly testifies to the pre-Solonian origins of the Athenian legislation against tyranny and subversion, and also adds meaningfully to our knowledge about ἀτιμία. This evidence concerns the nature of ἀτιμία as a penalty that extended to the entire family. Death with impunity awaited not only the ἄτιμος himself but also other members of his family in the case of high treason.Footnote ⁴⁶ Once Lycides was killed, according to Herodotus (9.5), upon learning what had happened and ‘on their own motion’, Athenian women went to the house of Lycides, and stoned his wife and his children (τὰ τέκνα) to death. Habicht not only decried the murder of the wife and children of Lycides, which has traditionally been presented as a display of unexpected cruelty,Footnote ⁴⁷ but even interpreted Lycides' own death as a ‘breach of law’.Footnote ⁴⁸ According to Habicht, the ‘illegality’ of this act required the adoption (or inventing the adoption) of a special decree to justify what had happened.Footnote ⁴⁹ However, even if decrees on the ἀτιμία of Lycides and Arthmius were later inventions, the murder of Lycides' family members reflected the nature of ἀτιμία as a penalty that was extended to the entire family. The situation was the same in the case of the punishment of Archeptolemus and Antiphon and their families, and the provision for the punishment of Arthmius and his family members.Footnote ⁵⁰ Athenian laws against tyranny and subversion revealed a similar attitude when they penalized the entire family by ἀτιμία (see [i] and [iv] above). Likewise, according to Idomeneus, the Athenians punished Themistocles' ‘betrayal of Greece’ by having him and his family (αὐτοῦ καὶ γένους) exiled in perpetuity, and Isocrates reflected the same idea in the mid fourth century, when he observed that the entire γένος of former tyrants had been blotted out of the sight of men.Footnote ⁵¹ Other such examples include Polybius' reference to the treachery of the Arcadian king Aristocrates, which was punished by putting him and his whole family (αὐτὸν … καὶ τὸ γένος αὐτοῦ πᾶν) to death after the Second Messenian War; an Attic provision against the establishment of tyranny in Erythrae, which stipulated against tyrants and their ‘children’: [κ](αὶ) [οἱ] παῖδε(ς h)οι ἐχς ἐ(κ)είν(ου); a decree from Miletus, which exiled the tyrants and their descendants (καὶ αὐτὸς̣ [κα]ὶ ἐκγόνος), and promised to reward their killers (evidently in the case such people dared to return); and the threat of death to the breaker of the oath and his progeny (καὶ αὐτὸν καὶ γόνον) in an inscription from Cyrene.Footnote ⁵²

The character of ἀτιμία as a punishment of the entire family survived even when ἀτιμία was understood in a narrow legal sense, as a loss of civic rights, and served as a penalty for crimes other than a high treason.Footnote ⁵³ In this sense, the difference between ‘archaic’ and ‘classical’ ἀτιμία was indeed ‘not as radical as often assumed’. The relevant evidence includes the words of Andocides that before the battle of Aegospotami the Athenian ἄτιμοι were comprised of thieves and bribe-takers, who were ἄτιμοι ‘together with their posterity’ (τούτους ἔδει καὶ αὐτοὺς καὶ τοὺς ἐκ τούτων ἀτίμους εἶναι, 1.74), as well as the following excerpt from [Dem.] 43.58:

Another speech from the Demosthenic corpus mentions the same law and refers to a grandson of an ἄτιμος, who inherited ἀτιμία in the third generation ([Dem.] 58.14, 16). In Demosthenes' oration against Androtion, the speaker reminds the defendant that the law made him an heir to the ἀτιμία of his father, so that if his father was still an ἄτιμος, the defendant, too, had no right to move proposals in the assembly and initiate prosecutions. We see a reference to the ἀτιμία being inherited in another speech. Other texts likewise provide evidence for ἀτιμία as a punishment that was extended to the rest of the family.Footnote ⁵⁴ The nature of ἀτιμία as a collective penalty is also revealed in Lysias' oration for Polystratus, which pointed to the impending misery of the entire family once the father lost his πολιτεία as a result of a διαψηφισμός, and in Antiphon's speech on the murder of Herodes, which included the following words aimed at the prosecutor:

The speeches of Andocides, Demosthenes, Lysias and Antiphon show that the nature of ἀτιμία as a punishment of the entire family survived in the classical period. They complement inscriptional evidence in challenging the idea that ἀτιμία completely transformed into a personal punishment late in the fifth century.Footnote ⁵⁶

The nature of ἀτιμία as a collective penalty is confirmed by the practice of extending curses to other members of the family. By threatening his adversary with a curse of the extinction of his entire family and household, the speaker in the excerpt quoted above from Antiphon's speech on the murder of Herodes reflected a situation when an accusation of a murder was brought against a specific individual ‘by name’ – as opposed to making a general accusation against unspecified ‘perpetrators and murderers’ – which made up a part of Draco's legislation.Footnote ⁵⁷ The practice of cursing both the person responsible for destroying, abolishing or modifying legal ordinances and his entire family survived in later documents. Thus, a ‘law’ quoted by Demosthenes made ἄτιμοι both the one who broke the ordinance and his children (ἄτιμον εἶναι καὶ παῖδας). Similar provisions have been documented in other places in Greece.Footnote ⁵⁸ The parallelism between the situation in Athens and other Greek cities is reinforced by a comparison of the Athenian decree about the establishment of a κληρουχία in Brea (Thrace) – which threatened anyone who challenged it, and his children, with ἀτιμία ([ἄτιμον] ναι αὐτὸν καὶ παῑδας τὸς ἐχς [ἐκένο]) and the confiscation of property – with a law on establishing a new colony from Locris, which punished anyone who challenged its provisions by making him and his entire family (καὶ γενεὰ ἄματα πάντα) accursed for all time, as well as having his property confiscated and his house demolished.Footnote ⁵⁹

A similar situation reveals itself in legal and diplomatic documents from the ancient Near East: curses and divine punishments awaited not only the persons who abolished or modified an existing regulation but also their entire families. In the former case, the Laws of Hammurabi concluded by cursing ‘him, his descendants, his land, his warriors, his people, his nation with a foul curse!’Footnote ⁶⁰ Similar clauses were typical of treaty oaths, as, for example, in the treaty between the Hittite king Mursili II and Duppi-Tessub of Amurru (c. 1315 b.c.), and between Niqmepa of Alalakh and Ir-IM, king of Tunip (from about the same time).Footnote ⁶¹ Other treaties reveal the innermost meaning of such references, as does the Succession Treaty of Esarhaddon (early seventh century b.c.), which includes curses against the breakers of oaths and their ‘seed’.Footnote ⁶² In fact, this is the word used in the translation of the above-quoted segment of the Laws of Hammurabi as well.Footnote ⁶³ While it is not possible to trace the roots of the corresponding Greek practice directly to the ancient Near East, the meaning of καὶ γένος (αὐτοῦ) in curses and punishments from classical Greece evidently was the same: both the perpetrator and his ‘seed’ were to be exterminated. Thus, the murderers of the Cylonian conspirators were cursed together with their entire γένος.Footnote ⁶⁴

Even more important, however, is that ἀτιμία not only retained its character as a collective penalty but also extended to family members regardless of their legal status. The legal status of the children of Athenian ἄτιμοι was noted only very rarely, as, for example, in the decree on Archeptolemus and Antiphon, which extended ἀτιμία to their ‘illegitimate and legitimate’ descendants (καὶ νόθους καὶ γνησίους, [Plut.] X orat., 834b), and in the Athenian law stating that those who did not pay the rents due for the lands of the goddess or of the gods and the eponymous heroes would be ἄτιμοι – themselves and their γένος and their heirs (ἀτίμους εἶναι καὶ αὐτοὺς καὶ γένος καὶ κληρονόμους τοὺς τούτων, [Dem.] 43.58) – until they shall make payment. The crucial evidence is that punishment by ἀτιμία made no distinction between legitimate and illegitimate children, even when this distinction was formally acknowledged. To judge by its extension to children regardless of their legal status, the origins of ἀτιμία predated Solon's legislation. It was Solon who organized the order of inheritance by kinsmen on the basis of legitimacy and thus established a distinction between legitimate children and bastards,Footnote ⁶⁵ as quoted in the following ancient texts:

Hence, Heracles, who was Zeus's illegitimate child, found himself in a comic situation in Aristophanes' play The Birds (414 b.c.), which rendered Solon's law (τὸν Σόλωνος νόμον) in the following fashion:

The prose citation suggests that Aristophanes quoted the original text of the law, whereas its alleged inconsistency is explained by the play's comic nature.Footnote ⁶⁸ Contrary to Heracles' hopes, the phrase ‘and if there be no legitimate children’ (one expects a meaningful pause after this sentence) reflected not that bastards could inherit but that the property then passed to the nearest legitimate kin.