CONSTITUTIONAL AND JUDICIAL CHANGES AT ATHENS UNDER PERIKLES.
The period which we have now passed over appears to have been that in
which the democratical cast of Athenian public life was first brought
into its fullest play and development, as to judicature, legislation,
and administration.
The great judicial change was made by the methodical distribution of
a large proportion of the citizens into distinct judicial divisions,
by the great extension of their direct agency in that department,
and by the assignment of a constant pay to every citizen so engaged.
It has been already mentioned that even under the democracy of
Kleisthenês, and until the time succeeding the battle of Platæa,
large powers still remained vested both in the individual archons and
in the senate of Areopagus: which latter was composed exclusively
of the past archons after their year of office, sitting in it for
life,—though the check exercised by the general body of citizens,
assembled for law-making in the ekklesia, and for judging in the
heliæa, was at the same time materially increased. We must farther
recollect, that the distinction between powers administrative and
judicial, so highly valued among the more elaborate governments
of modern Europe, since the political speculations of the last
century, was in the early history of Athens almost unknown. Like
the Roman kings,[659] and the Roman consuls before the appointment
of the prætor, the Athenian archons not only administered, but also
exercised jurisdiction, voluntary as well as contentious,—decided
disputes, inquired into crimes, and inflicted punishment. Of the
same mixed nature were the functions of the senate of Areopagus,
and even of the annual senate of Five Hundred, the creation of
Kleisthenês. The stratêgi, too, as well as the archons, had
doubtless the double competence—in reference to military, naval, and
foreign affairs—of issuing orders and of punishing by their own
authority, disobedient parties: the _imperium_ of the magistrates,
generally, enabled them to enforce their own mandates as well as
to decide in cases of doubt whether any private citizen had or had
not been guilty of infringement. Nor was there any appeal from
these magisterial judgments; though the magistrates were subject,
under the Kleisthenean constitution, to personal responsibility for
their general behavior, before the people judicially assembled,
at the expiration of their year of office,—and to the farther
animadversion of the ekklesia, or public deliberative assembly,
meeting periodically during the course of that year: in some of
which ekklesiæ, the question might formally be raised for deposing
any magistrate, even before his year was expired.[660] Still, in
spite of such partial checks, the accumulation, in the same hand,
of powers to administer, judge, punish, and decide civil disputes,
without any other canon than the few laws then existing, and without
any appeal,—must have been painfully felt, and must have often led
to corrupt, arbitrary, and oppressive dealing: and if this be true
of individual magistrates, exposed to annual accountability, it is
not likely to have been less true of the senate of Areopagus, which,
acting collectively, could hardly be rendered accountable, and in
which the members sat for life.[661]
[659] See K. F. Hermann, Griechische Staatsalterthümer, sects.
53-107, and his treatise De Jure et Auctoritate Magistratuum ap.
Athen. p. 53 (Heidelb. 1829); also Rein, Römisches Privatrecht,
pp. 26, 408, Leips. 1836. M. Laboulaye also insists particularly
upon the confusion of administrative and judiciary functions
among the Romans (Essai sur les Loix Criminelles des Romains,
pp. 23, 79, 107, etc.): and compare Mr. G. C. Lewis, Essay on
the Government of Dependencies, p. 42, with his citation from
Hugo, Geschichte des Römischen Rechts, p. 42. Mr. Lewis has given
just and valuable remarks upon the goodness of the received
classification of powers as a theory, and upon the extent to
which the separation of them either has been, or can be, carried
in practice: see also Note E, in the same work, p. 347.
The separation of administrative from judicial functions appears
unknown in early societies. M. Meyer observes, respecting
the judicial institutions of modern Europe: “Anciennement
les fonctions administratives et judiciaires n’étoient pas
distinctes. Du temps de la liberté des Germains et même long
temps après, les plaids de la nation ou ceux du comté rendoient
la justice et administroient les intérêts nationaux ou locaux
dans une seule et même assemblée: sous le régime féodal, le roi
ou l’empereur dans son conseil, sa cour, son parlement composé
des hauts barons ecclésiastiques et laïes, exerçait tous les
droits de souveraineté comme de justice: dans la commune, le
bailli, mayeur, ou autre fonctionnaire nommé par le prince,
administraient les intérêts communaux et jugeoient les bourgeois
de l’avis de la communauté entière, des corporations qui la
composoient, ou des autorités et conseils qui la réprésentoient:
on n’avoit pas encore soupçonné que le jugement d’une cause entre
particuliers pût être étranger à la cause commune.”—Meyer, Esprit
des Institutions Judiciaires, book v, chap. 11, vol. iii, p. 239;
also chap. 18, p. 383.
[660] A case of such deposition of an archon by vote of the
public assembly, even before the year of office was expired,
occurs in Demosthenês, cont. Theokrin. c. 7: another, the
deposition of a stratêgus, in Demosthen. cont. Timoth. c. 3.
[661] Æschinês (cont. Ktesiphont, c. 9, p. 373) speaks of the
senate of Areopagus as ὑπεύθυνος, and so it was doubtless
understood to be: but it is difficult to see how accountability
could be practically enforced against such a body. They could
only be responsible in this sense,—that, if any one of their
number could be proved to have received a bribe, he would
be individually punished. But in this sense the dikasteries
themselves would also be responsible: though it is always
affirmed of them that they were not responsible.
I have already mentioned that shortly after the return of the
expatriated Athenians from Salamis, Aristeidês had been impelled,
by the strong democratical sentiment which he found among his
countrymen, to propose the abolition of all pecuniary qualification
for magistracies, so as to render every citizen legally eligible.
This innovation, however, was chiefly valuable as a victory and
as an index of the predominant sentiment: notwithstanding the
enlarged promise of eligibility, little change probably took place
in the fact, and rich men were still most commonly chosen. Hence
the magistrates, possessing the large powers administrative and
judicial above described,—and still more the senate of Areopagus,
which sat for life,—still belonging almost entirely to the wealthier
class, remained animated more or less with the same oligarchical
interest and sympathies, which manifested themselves in the abuse
of authority. At the same time the democratical sentiment among
the mass of Athenians went on steadily increasing from the time
of Aristeidês to that of Periklês: Athens became more and more
maritime, the population of Peiræus augmented in number as well as in
importance, and the spirit even of the poorest citizen was stimulated
by that collective aggrandizement of his city to which he himself
individually contributed. Before twenty years had elapsed, reckoning
from the battle of Platæa, this new fervor of democratical sentiment
made itself felt in the political contests of Athens, and found able
champions in Periklês and Ephialtês, rivals of what may be called the
conservative party, headed by Kimon.
We have no positive information that it was Periklês who introduced
the lot, in place of election, for the choice of archons and various
other magistrates, but the change must have been introduced nearly
at this time, and with a view of equalizing the chances of office to
every candidate, poor as well as rich, who chose to give in his name,
and who fulfilled certain personal and family conditions ascertained
in the dokimasy, or preliminary examination. But it was certainly to
Periklês and Ephialtês that Athens owed the elaborate constitution
of her popular dikasteries, or jury courts regularly paid, which
exercised so important an influence upon the character of the
citizens. These two eminent men deprived both the magistrates and the
senate of Areopagus of all the judicial and penal competence which
they had hitherto possessed, save and except the power of imposing
a small fine. This judicial power, civil as well as criminal, was
transferred to numerous dikasts, or panels of jurors selected from
the citizens; six thousand of whom were annually drawn by lot and
sworn, and then distributed into ten panels of five hundred each,
the remainder forming a supplement in case of vacancies. The
magistrate, instead of deciding causes, or inflicting punishment by
his own authority, was now constrained to impanel a jury,—that is, to
submit each particular case, which might call for a penalty greater
than the small fine to which he was competent, to the judgment of
one or other among these numerous popular dikasteries. Which of
the ten he should take, was determined by lot, so that no one knew
beforehand what dikastery would try any particular cause: he himself
presided over it during the trial, and submitted to it the question
at issue, with the results of his own preliminary examination, in
addition to the speeches of accuser and accused, with the statements
of their witnesses. So also the civil judicature, which had before
been exercised in controversies between man and man by the archons,
was withdrawn from them and transferred to these dikasteries under
the presidence of an archon. It is to be remarked, that the system
of reference to arbitration for private causes[662] was extensively
applied at Athens: a certain number of public arbitrators were
annually appointed, to one of whom—or to some other citizen adopted
by mutual consent of the parties—all private disputes were submitted
in the first instance. If dissatisfied with the decision, either
party might afterwards carry the matter before the dikastery: but
it appears that in many cases the decision of the arbitrator was
acquiesced in without this ultimate resort.
[662] Respecting the procedure of arbitration at Athens,
and the public as well as private arbitrators, see the
instructive treatise of Hudtwalcker, Ueber die öffentlichen und
Privat-Schiedsrichter (Diaeteten) zu Athen: Jena, 1812.
Each arbitrator seems to have sat alone to inquire into and
decide disputes: he received a small fee of one drachma from
both parties: also an additional fee when application was made
for delay (p. 16). Parties might by mutual consent fix upon any
citizen to act as arbitrator: but there were a certain number of
public arbitrators, elected or drawn by lot from the citizens
every year: and a plaintiff might bring his cause before any
one of these. They were liable to be punished under εὔθυναι, at
the end of their year of office, if accused and convicted of
corruption or unfair dealing.
The number of these public diætetæ, or arbitrators, was unknown
when Hudtwalcker’s book was published. An inscription, since
discovered by Professor Ross, and published in his work, Über die
Demen von Attika, p. 22, records the names of all the diætetæ for
the year of the archon Antiklês, B. C. 325, with the name of the
tribe to which each belonged.
The total number is one hundred and four: the number in each
tribe is unequal; the largest number is in Kekropis, which
furnishes sixteen; the smallest in Pandionis, which sends only
three. They must have been either elected or drawn by lot from
the general body of citizens, without any reference to tribes.
The inscription records the names of the diætetæ for this year B.
C. 325, in consequence of their being crowned or receiving a vote
of thanks from the people. The fragment of a like inscription for
the year B. C. 337, also exists.
I do not here mean to affirm that there never was any trial by the
people before the time of Periklês and Ephialtês: I doubt not that,
before their time, the numerous judicial assembly called Heliæa,
pronounced upon charges against accountable magistrates as well as
upon various other accusations of public importance; and perhaps in
some cases, separate bodies of them may have been drawn by lot for
particular trials. But it is not the less true, that the systematic
distribution and constant employment of the numerous dikasts of
Athens cannot have begun before the age of these two statesmen,
since it was only then that the practice of paying them began: for
so large a sacrifice of time on the part of poor men, wherein M.
Boëckh states,[663] doubtless in very exaggerated language, that
“nearly one-third of the citizens sat as judges every day,” cannot be
conceived without an assured remuneration. From and after the time
of Periklês, these dikasteries were the exclusive assemblies for
trial of all causes, civil as well as criminal, with some special
exceptions, such as cases of homicide and a few others: but before
his time, the greater number of these causes had been adjudged
either by individual magistrates or by the senate of Areopagus. We
may therefore conceive how great and important was the revolution
wrought by that statesman, when he first organized these dikastic
assemblies into systematic action, and transferred to them nearly all
the judicial power which had before been exercised by magistrates and
senate. The position and influence of these latter became radically
altered: the most commanding functions of the archon were abrogated,
and he retained only the power of receiving complaints, inquiring
into them, exercising some small preliminary interference with the
parties for the furtherance of the cause or accusation, fixing the
day for trial, and presiding over the dikastic assembly, by whom
peremptory verdict was pronounced. His administrative functions
remained unaltered, but his powers, inquisitorial and determining, as
a judge, passed away.[664]
[663] Public Economy of the Athenians, book ii, chap. xiv, p.
227. Engl. transl.
M. Boëckh must mean that the whole six thousand, or nearly the
whole, were employed every day. It appears to me that this
supposition greatly overstates both the number of days and the
number of men actually employed. For the inference in the text,
however, a much smaller number is sufficient.
See the more accurate remark of Schömann, Antiquit. Juris Public.
Græcor., sect. lxxi, p. 310.
[664] Aristotel. Politic. ii, 9, 3. Καὶ τὴν μὲν ἐν Ἀρείῳ
πάγῳ βουλὴν Ἐφιάλτης ἐκόλουσε καὶ Περικλῆς· τὰ δὲ δικαστήρια
μισθοφόρα κατέστησε Περικλῆς· καὶ τοῦτον δὴ τὸν τρόπον ἕκαστος
τῶν δημαγωγῶν προήγαγεν, αὔξων εἰς τὴν νῦν δημοκρατίαν. Φαίνεται
δ’ οὐ κατὰ τὴν Σόλωνος γενέσθαι τοῦτο προαίρεσιν, ἀλλὰ μᾶλλον
ἀπὸ συμπτώματος. Τῆς ναυαρχίας γὰρ ἐν τοῖς Μηδικοῖς ὁ δῆμος
αἴτιος γενόμενος ἐφρονηματίσθη, καὶ δημαγωγοὺς ἔλαβε φαύλους,
ἀντιπολιτευομένων τῶν ἐπιεικῶν· ἐπεὶ Σόλων γ’ ἔοικε τὴν
ἀναγκαιοτάτην ἀποδιδόναι τῷ δήμῳ δύναμιν, τὸ τὰς ἀρχὰς αἱρεῖσθαι
καὶ εὐθύνειν· μηδὲ γὰρ τούτου κύριος ὢν ὁ δῆμος δοῦλος ἂν εἴη καὶ
πολέμιος.
The words τὰ δὲ δικαστήρια μισθοφόρα κατέστησε Περικλῆς,
are commonly translated, “Periklês first gave pay to the
dikasteries,” wherein it is assumed that these bodies had
before judged gratuitously. But it appears to me that the words
ought to be translated, “Periklês first constituted the paid
dikasteries:” that is, the dikasteries as well as the pay were of
his introduction.
It is evident from this whole passage that Aristotle did not
suppose the dikasteries, either gratuitous or paid, to have been
constituted by Solon, but to have been foreign to the purpose of
that lawgiver, and to have been novelties emanating from Periklês
and Ephialtês, at the same time that the judicial functions of
the senate of Areopagus were cut down.
In reference to the senate of Areopagus also, the changes introduced
were not less considerable. That senate, anterior to the democracy in
point of date, and standing alone in the enjoyment of a life-tenure,
appears to have exercised an undefined and extensive control which
long continuance had gradually consecrated. It was invested with
a kind of religious respect, and believed to possess mysterious
traditions emanating from a divine source:[665] especially, the
cognizance which it took of intentional homicide was a part of
old Attic religion not less than of judicature. Though put in the
background for a time, after the expulsion of the Peisistratids, it
had gradually recovered itself when recruited by the new archons
under the Kleisthenean constitution; and during the calamitous
sufferings of the Persian invasion, its forwardness and patriotism
had been so highly appreciated as to procure for it an increased
sphere of ascendency. Trials for homicide were only a small part of
its attributions: it exercised judicial competence in many other
cases besides, and what was of still greater moment, it maintained
a sort of censorial police over the lives and habits of the
citizens,—it professed to enforce a tutelary and paternal discipline,
beyond that which the strict letter of the law could mark out, over
the indolent, the prodigal, the undutiful, and the deserters from old
rite and custom. To crown all, the senate of Areopagus also exercised
a supervision over the public assembly, taking care that none of
the proceedings of those meetings should be such as to infringe
the established laws of the country. These were powers immense as
well as undefined, not derived from any formal grant of the people,
but having their source in immemorial antiquity, and sustained by
general awe and reverence: when we read the serious expressions of
this sentiment in the mouths of the later orators,—Demosthenês,
Æschinês, or Deinarchus,—we shall comprehend how strong it must have
been a century and a half before them, at the period of the Persian
invasion. Isokratês, in his Discourse usually called _Areopagiticus_,
written a century and a quarter after that invasion, draws a picture
of what the senate of Areopagus had been while its competence was yet
undiminished, and ascribes to it a power of interference little short
of paternal despotism, which he asserts to have been most salutary
and improving in its effect. That the picture of this rhetor is
inaccurate,—and to a great degree indeed ideal, insinuating his own
recommendations under the color of past realities,—is sufficiently
obvious: but it enables us to presume generally, the extensive
regulating power of the senate of Areopagus, in affairs both public
and private, at the time which we are now describing.
[665] Deinarchus cont. Demosthen. Or. i, p. 91. φυλάττει τὰς
ἀποῤῥήτους διαθήκας, ἐν αἷς τὰ τῆς πόλεως σωτήρια κεῖται, etc. So
also Æschinês calls this senate τὴν σκυθρωπὸν καὶ τῶν μεγίστων
κυρίαν βουλὴν (cont. Ktesiphont. c. 9, p. 373: compare also cont.
Timarchum, c. 16, p. 41; Demosth. cont. Aristokrat. c. 65, p.
641). Plutarch, Solon, c. 19. τὴν ἄνω βουλὴν ἐπίσκοπον πάντων καὶ
φύλακα τῶν νόμων, etc.
Ἐδίκαζον οὖν οἱ Ἀρεοπαγῖται περὶ πάντων σχεδὸν τῶν σφαλμάτων καὶ
παρανομιῶν, ὡς ἅπαντά φησιν Ἀνδροτίων ἐν πρώτῃ καὶ Φιλόχορος ἐν
δευτέρᾳ καὶ τρίτῃ τῶν Ἀτθίδων (Philochorus, Fr. 17-58, ed. Didot,
p. 19, ed. Siebelis).
See about the Areopagus, Schömann, Antiq. Jur. Att. sect. lxvi.;
K. F. Hermann, Griech. Staatsalterthümer, sect. 109.
Such powers were pretty sure to be abused, and when we learn that
the Spartan senate[666] was lamentably open to bribery, we can
hardly presume much better of the life-sitting elders at Athens.
But even if their powers had been guided by all that beneficence of
intention which Isokratês affirms, they were in their nature such as
could only be exercised over a passive and stationary people: and
the course of events at Athens, at that time peculiarly, presented
conditions altogether the reverse. During the pressure of the Persian
invasion, indeed, the senate of Areopagus had been armed with more
than ordinary authority, which it had employed so creditably as
to strengthen its influence, and tighten its supervision during
the period immediately following: but that same trial had also
called forth in the general body of the citizens a fresh burst of
democratical sentiment, and an augmented consciousness of force, both
individual and national. Here then were two forces, not only distinct
but opposite and conflicting, both put into increased action at the
same time.[667] Nor was this all: a novel cast was just then given to
Athenian life and public habits by many different circumstances,—the
enlargement of the city, the creation of the fortified port and
new town of Peiræus, the introduction of an increased nautical
population, the active duties of Athens as head of the Delian
confederacy, etc. All these circumstances tended to open new veins of
hope and feeling, and new lines of action, in the Athenians between
480-460 B. C., and by consequence to render the interference of the
senate of Areopagus, essentially old-fashioned and conservative as
it was, more and more difficult. But at the very time when prudence
would have counselled that it should have been relaxed or modified,
the senate appear to have rendered it stricter, or at least to
have tried to do so: which could not fail to raise against them a
considerable body of enemies. Not merely the democratical innovators,
but also the representatives of new interests generally at Athens,
became opposed to the senate as an organ of vexatious repression,
employed for oligarchical purposes.[668]
[666] Aristotel. Politic. ii, 6, 18.
[667] Aristotle particularly indicates these two conflicting
tendencies in Athens, the one immediately following the other, in
a remarkable passage of his Politics (v, 3, 5).
Μεταβάλλουσι δὲ καὶ εἰς ὀλιγαρχίαν καὶ εἰς δῆμον καὶ εἰς
πολιτείαν ἐκ τοῦ εὐδοκιμῆσαί τι ἢ αὐξηθῆναι ἢ ἀρχεῖον ἢ μόριον
τῆς πόλεως· οἷον, ἡ ἐν Ἀρείῳ πάγῳ βουλὴ εὐδοκιμήσασα ἐν τοῖς
Μηδικοῖς ἔδοξε ~συντονωτέραν~ ποιῆσαι τὴν πολιτείαν. Καὶ πάλιν
ὁ ναυτικὸς ὄχλος γενόμενος αἴτιος τῆς περὶ Σαλαμῖνα νίκης καὶ
διὰ ταύτης τῆς ἡγεμονίας διὰ τὴν κατὰ θάλατταν δύναμιν, τὴν
~δημοκρατίαν ἰσχυροτέραν~ ἐποίησεν.
The word συντονωτέραν (“stricter, more rigid,”) stands opposed in
another passage to ἀνειμένας (iv, 3, 5).
[668] Plutarch. Reipub. Ger. Præcept. p. 805. Οὐκ ἀγνοῶ δὲ, ὅτι
βουλήν τινες ἐπαχθῆ καὶ ὀλιγαρχικὴν κολούσαντες, ὥσπερ Ἐφιάλτης
Ἀθήνῃσι καὶ Φορμίων παρ’ Ἠλείοις, δύναμιν ἅμα καὶ δόξαν ἔσχον.
About the oligarchical character of the Areopagites, see
Deinarchus cont. Demosthen. pp 46, 98.
From the character of the senate of Areopagus, and the ancient
reverence with which it was surrounded, it served naturally as a
centre of action to the oligarchical or conservative party,—that
party which desired to preserve the Kleisthenean constitution
unaltered, with undiminished authority, administrative as well as
judicial, both to individual magistrates and to the collective
Areopagus. Of this sentiment, at the time of which we are now
speaking, Kimon was the most conspicuous leader, and his brilliant
victories at the Eurymedon, as well as his exploits in other warlike
enterprises, doubtless strengthened very much his political influence
at home. The same party also probably included the large majority of
rich and old families at Athens; who, so long as the magistracies
were elected and not chosen by lot, usually got themselves chosen,
and had every interest in keeping the power of such offices as high
as they could. Moreover, the party was farther strengthened by
the pronounced support of Sparta, imparted chiefly through Kimon,
proxenus of Sparta at Athens. Of course, such aid could only have
been indirect, yet it appears to have been of no inconsiderable
moment,—for when we consider that Ægina had been in ancient feud
with Athens, and Corinth in a temper more hostile than friendly,
the good feeling of the Lacedæmonians might well appear to Athenian
citizens eminently desirable to preserve: and the philo-Laconian
character of the leading men at Athens contributed to disarm the
jealousy of Sparta during that critical period while the Athenian
maritime ascendency was in progress.[669]
[669] Plutarch, Kimon, c. 16; Themistoklês, c. 20.
The political opposition between Periklês and Kimon was hereditary,
since Xanthippus, the father of the former, had been the accuser of
Miltiadês, the father of the latter. Both were of the first families
in the city, and this, combined with the military talents of Kimon,
and the great statesmanlike superiority of Periklês, placed both the
one and the other at the head of the two political parties which
divided Athens. Periklês must have begun his political career very
young, since he maintained a position first of great influence, and
afterwards of unparalleled moral and political ascendency, for the
long period of forty years, against distinguished rivals, bitter
assailants, and unscrupulous libellers (about 467-428 B. C.) His
public life began about the time when Themistoklês was ostracized,
and when Aristeidês was passing off the stage, and he soon displayed
a character which combined the pecuniary probity of the one with
the resource and large views of the other; superadding to both a
discretion and mastery of temper never disturbed,—an excellent
musical and lettered education received from Pythokleidês,—an
eloquence such as no one before had either heard or conceived,—and
the best philosophy which the age afforded. His military duties as
a youthful citizen were faithfully and strenuously performed, but
he was timid in his first political approaches to the people,—a
fact perfectly in unison with the caution of his temperament, but
which some of his biographers[670] explained by saying that he was
afraid of being ostracized, and that his countenance resembled
that of the despot Peisistratus. We may be pretty sure, however,
that this personal resemblance, like the wonderful dream ascribed
to his mother[671] when pregnant of him, was an after-thought of
enemies, when his ascendency was already established,—and that
young beginners were in little danger of ostracism. The complexion
of political parties in Athens had greatly changed since the days
of Themistoklês and Aristeidês; for the Kleisthenean constitution,
though enlarged by the latter after the return from Salamis to
the extent of making all citizens without exception eligible for
magistracy, had become unpopular with the poorer citizens, and to the
keener democratical feeling which now ran through Athens and Peiræus.
[670] Plutarch, Periklês, c. 4-7., _seq._
[671] Herodot. vi, 131.
It was to this democratical party,—the party of movement against
that of resistance, or of reformers against conservatives, if we
are to employ modern phraseology,—that Periklês devoted his great
rank, character, and abilities. From the low arts which it is common
to ascribe to one who espouses the political interests of the poor
against the rich, he was remarkably exempt: he was indefatigable
in his attention to public business, but he went little into
society, and disregarded almost to excess the airs of popularity:
his eloquence was irresistibly impressive, yet he was by no means
prodigal of it, taking care to reserve himself, like the Salaminian
trireme, for solemn occasions, and preferring for the most part
to employ the agency of friends and partisans:[672] moreover, he
imbibed from his friend and teacher Anaxagoras, a tinge of physical
philosophy, which greatly strengthened his mind,[673] and armed him
against many of the reigning superstitions,— but which at the same
time tended to rob him of the sympathy of the vulgar, rich as well
as poor. The arts of demagogy were in fact much more cultivated by
the oligarchical Kimon, whose open-hearted familiarity of manner was
extolled, by his personal friend the poet Ion, in contrast with the
reserved and stately demeanor of his rival Periklês. Kimon employed
the rich plunder, procured by his maritime expeditions, in public
decorations as well as in largesses to the poorer citizens,—throwing
open his fields and fruits to all the inhabitants of his deme, and
causing himself to be attended in public by well-dressed slaves,
directed to tender their warm tunics in exchange for the threadbare
garments of those who seemed in want; while the property of Periklês
was administered with a strict, though benevolent economy, by his
ancient steward Evangelus,—the produce of his lands being all
sold, and the consumption of his house supplied by purchase in the
market.[674] It was by such regularity that his perfect and manifest
independence of all pecuniary seduction was sustained. In taste, in
talent, and in character, Kimon was the very opposite of Perikles,—a
brave and efficient commander, a lavish distributor, a man of
convivial and amorous habits, but incapable of sustained attention
to business, untaught in music or letters, and endued with Laconian
aversion to rhetoric and philosophy; while the ascendency of Periklês
was founded on his admirable combination of civil qualities,—probity,
firmness, diligence, judgment, eloquence, and power of guiding
partisans. As a military commander, though noway deficient in
personal courage, he rarely courted distinction, and was principally
famous for his care of the lives of the citizens, discountenancing
all rash or distant enterprises: his private habits were sober and
recluse,—his chief conversation was with Anaxagoras, Protagoras,[675]
Zeno, the musician Damon, and other philosophers,—while the tenderest
domestic attachment bound him to the engaging and cultivated Aspasia.
[672] Plutarch, Reipub. Gerend. Præcept. p. 812; Periklês, c. 5,
6, 7.
[673] Plato, Phædrus, c. 54, p. 270; Plutarch, Periklês, c. 8;
Xenoph. Memor. i, 2, 46.
[674] Plutarch, Periklês, c. 9, 16; Kimon, c. 10; Reipubl.
Gerend. Præcept. p. 818.
[675] The personal intercourse between Periklês and Protagoras is
attested by the interesting fragment of the latter which we find
in Plutarch, Consolat. ad Apollonium, c. 33, p. 119.
Such were the two men who stood forward at this time as most
conspicuous in Athenian party-contest,—the expanding democracy
against the stationary democracy of the past generation, which now
passed by the name of oligarchy,—the ambitious and talkative energy
spread even among the poor population, which was now forming more
and more the characteristic of Athens, against the unlettered and
uninquiring valor of the conquerors of Marathon.[676] Ephialtês, son
of Sophônidês, was at this time the leading auxiliary, seemingly
indeed the equal of Periklês, and no way inferior to him in
personal probity, though he was a poor man:[677] as to aggressive
political warfare, he was even more active than Periklês, who
appears throughout his long public life to have manifested but
little bitterness against political enemies. Unfortunately, our
scanty knowledge of the history of Athens brings before us only some
general causes and a few marked facts: the details and the particular
persons concerned are not within our sight: yet the actual course of
political events depends everywhere mainly upon these details, as
well as upon the general causes. Before Ephialtês advanced his main
proposition for abridging the competence of the senate of Areopagus,
he appears to have been strenuous in repressing the practical
abuse of magisterial authority, by accusations brought against the
magistrates at the period of their regular accountability. After
repeated efforts to check the practical abuse of these magisterial
powers,[678] Ephialtês and Periklês were at last conducted to the
proposition of cutting them down permanently, and introducing an
altered system.
[676] Aristophan. Nubes, 972, 1000, _seq._ and Ranæ, 1071.
[677] Plutarch, Kimon, c. 10; Ælian, V. H. ii, 43; xi, 9.
[678] Plutarch, Periklês, c. 10: compare Valer. Maxim. iii, 8,
4. Ἐφιάλτην μὲν οὖν, φοβερὸν ὄντα τοῖς ὀλιγαρχικοῖς καὶ περὶ
τὰς εὐθύνας καὶ διώξεις τῶν τὸν δῆμον ἀδικούντων ἀπαραίτητον,
ἐπιβουλεύσαντες οἱ ἐχθροὶ δι’ Ἀριστοδίκου τοῦ Ταναγρικοῦ κρυφαίως
ἀνεῖλον, etc.
We are not surprised to find that such proceedings provoked extreme
bitterness of party-feeling, and it is probable that this temper may
have partly dictated the accusation preferred against Kimon, about
463 B. C., after the surrender of Thasos, for alleged reception
of bribes from the Macedonian prince Alexander,—an accusation of
which he was acquitted. At this time the oligarchical or Kimonian
party was decidedly the most powerful: and when the question was
proposed for sending troops to aid the Lacedæmonians in reducing
the revolted Helots on Ithômê, Kimon carried the people along with
him to comply, by an appeal to their generous feelings, in spite of
the strenuous opposition of Ephialtês.[679] But when Kimon and the
Athenian hoplites returned home, having been dismissed by Sparta
under circumstances of insulting suspicion, as has been mentioned in
the preceding chapter, the indignation of the citizens was extreme:
they renounced their alliance with Sparta, and entered into amity
with Argos. Of course the influence of Kimon, and the position of the
oligarchical party, was materially changed by this incident: and in
the existing bitterness of political parties, it is not surprising
that his opponents should take the opportunity for proposing, soon
afterwards, a vote of ostracism,[680]—a challenge, indeed, which
may, perhaps, have been accepted not unwillingly by Kimon and his
party, since they might still fancy themselves the strongest, and
suppose that the sentence of banishment would fall upon Ephialtês or
Periklês. However, the vote ended in the expulsion of Kimon, a sure
proof that his opponents were now in the ascendent. On this occasion,
as on the preceding, we see the ostracism invoked to meet a period of
intense political conflict, the violence of which it would at least
abate, by removing for the time one of the contending leaders.
[679] Plutarch, Kimon, c. 16.
[680] Plutarch, Kimon, c. 17. Οἱ δὲ πρὸς ὀργὴν ἀπελθόντες ἤδη
τοῖς λακωνίζουσι φανερῶς ἐχαλέπαινον, καὶ τὸν Κίμωνα ~μικρᾶς
ἐπιλαβόμενοι προφάσεως~ ἐξωστράκισαν εἰς ἔτη δέκα.
I transcribe this passage as a specimen of the inaccurate manner
in which the ostracism is so often described. Plutarch says:
“The Athenians took advantage of a slight pretence to ostracize
Kimon:” but it was the peculiar characteristic of ostracism that
it had no _pretence_: it was a judgment passed without specific
or assigned cause.
It was now that Periklês and Ephialtês carried their important
scheme of judicial reform. The senate of Areopagus was deprived of
its discretionary censorial power, as well as of all its judicial
competence except that which related to homicide. The individual
magistrates, as well as the senate of Five Hundred, were also
stripped of their judicial attributes, except the power of imposing
a small fine,[681] which were transferred to the newly created
panels of salaried dikasts, lotted off in ten divisions from the
aggregate heliæa. Ephialtês[682] first brought down the laws of Solon
from the acropolis to the neighborhood of the marketplace, where
the dikasteries sat,—a visible proof that the judicature was now
popularized.
[681] Demosthen. cont. Euerg. et Mnesibul. c. 12.
[682] Harpokration—Ὁ κάτωθεν νόμος—Pollux, viii, 128.
In the representations of many authors, the full bearing of this
great constitutional change is very inadequately conceived. What we
are commonly told, is, that Periklês was the first to assign a salary
to these numerous dikasteries at Athens; he bribed the people with
the public money, says Plutarch, in order to make head against Kimon,
who bribed them out of his own private purse: as if the pay were
the main feature in the case, and as if all which Periklês did, was
to make himself popular by paying the dikasts for judicial service,
which they had before rendered gratuitously. The truth is, that this
numerous army of dikasts, distributed into ten regiments and summoned
to act systematically throughout the year, was now for the first time
organized: the commencement of their pay is also the commencement
of their regular judicial action. What Periklês really did, was
to sever for the first time from the administrative competence of
the magistrates that judicial authority which had originally gone
along with it. The great men who had been accustomed to hold these
offices were lowered both in influence and authority:[683] while
on the other hand a new life, habit, and sense of power, sprang
up among the poorer citizens. A plaintiff, having cause of civil
action, or an accuser, invoking punishment against citizens guilty
of injury either to himself or to the state, had still to address
himself to one or other of the archons, but it was only with a view
of ultimately arriving before the dikastery, by whom the cause was
to be tried. While the magistrates acting individually were thus
restricted to simple administration and preliminary police, they
experienced a still more serious loss of power in their capacity
of members of the Areopagus, after the year of archonship was
expired. Instead of their previous unmeasured range of supervision
and interference, they were now deprived of all judicial sanction,
beyond that small power of fining, which was still left both to
individual magistrates, and to the senate of Five Hundred. But the
cognizance of homicide was still expressly reserved to them,—for the
procedure, in this latter case, religious not less than judicial, was
so thoroughly consecrated by ancient feeling, that no reformer could
venture to disturb or remove it.[684] It was upon this same ground
probably that the stationary party defended _all_ the prerogatives
of the senate of Areopagus,—denouncing the curtailments proposed
by Ephialtês as impious and guilty innovations.[685] How extreme
their resentment became, when these reforms were carried, and how
fierce was the collision of political parties at this moment, we
may judge by the result. The enemies of Ephialtês caused him to be
privately assassinated, by the hand of a Bœotian of Tanagra, named
Aristodikus. Such a crime—rare in the political annals of Athens, for
we come to no known instance of it afterwards, until the oligarchy
of the Four Hundred, in 411 B. C.—marks at once the gravity of the
change now introduced, the fierceness of the opposition offered, and
the unscrupulous character of the conservative party: Kimon was in
exile, and had no share in the deed. Doubtless the assassination of
Ephialtês produced an effect unfavorable in every way to the party
who procured it: the popular party, in their resentment, must have
become still more attached to the judicial reforms just assured to
them, while the hands of Periklês, the superior leader, left behind
and now acting singly, must have been materially strengthened.
[683] Arist. Polit. iv, 5, 6. ἔτι δ’ οἱ ταῖς ἀρχαῖς ἐγκαλοῦντες
τὸν δῆμόν φασι δεῖν κρίνειν· ὁ δὲ ἀσμένως δέχεται τὴν πρόκλησιν·
ὥστε καταλύονται πᾶσαι αἱ ἀρχαί, etc.; compare vi, 1, 8.
The remark of Aristotle is not justly applicable to the change
effected by Periklês, which transferred the power taken from
the magistrates, not to the people but to certain specially
constituted, though numerous and popular dikasteries, sworn
to decide in conformity with known and written laws. Nor is
the separation of judicial competence from administrative, to
be characterized as “dissolving or extinguishing magisterial
authority.” On the contrary, it is conformable to the best modern
notions. Periklês cannot be censured for having effected this
separation, however persons may think that the judicature which
he constituted was objectionable.
Plato seems also to have conceived administrative power as
essentially accompanied by judicial (Legg. vi, p. 767)—πάντα
ἄρχοντα ἀναγκαῖον καὶ δικαστὴν εἶναι τίνων—an opinion, doubtless,
perfectly just, up to a certain narrow limit: the separation
between the two sorts of powers cannot be rendered _absolutely_
complete.
[684] Demosthen. cont. Neær. p. 1372; cont. Aristokrat. p. 642.
Meier (Attischer Prozess, p. 143) thinks that the senate of
Areopagus was also deprived of its cognizance of homicide as well
as of its other functions, and that this was only restored after
the expulsion of the Thirty. He supposes this to be proved by a
passage of Lysias which he produces (De Cæde Eratosthenis, pp.
31-33).
M. Boëckh and O. Müller adopt the same opinion as Meier, and
seemingly on the authority of the same passage, (see the
Dissertation of O. Müller on the Eumenides of Æschylus, p.
113, Eng. transl.) But in the first place, this opinion is
contradicted by an express statement in the anonymous biographer
of Thucydidês, who mentions the trial of Pyrilampês for murder
before the Areopagus; and contradicted also, seemingly, by
Xenophon (Memorab. iii, 5, 20); in the next place, the passage
of Lysias appears to me to bear a different meaning. He says:
ᾧ καὶ πάτριόν ἐστι καὶ ἐφ’ ὑμῶν ἀποδέδοται τοῦ φόνου τὰς δίκας
δικάζειν: now—even if we admit the conjectural reading ἐφ’ ὑμῶν
in place of ἐφ’ ὑμῖν to be correct—still, this restoration of
functions to the Areopagus, refers naturally to the restored
democracy after the violent interruption occasioned by the
oligarchy of Thirty. Considering how many persons the Thirty
caused to be violently put to death, and the complete subversion
of all the laws which they introduced, it seems impossible to
suppose that the Areopagus could have continued to hold its
sittings and try accusations for intentional homicide, under
their government. On the return of the democracy after the Thirty
were expelled, the functions of the senate of Areopagus would
return also.
If the supposition of the eminent authors mentioned above were
correct,—if it were true that the Areopagus was deprived not only
of its supervising function generally, but also of its cognizance
of homicide, during the fifty-five years which elapsed between
the motion of Ephialtês and the expulsion of the Thirty,—this
senate must have been without any functions at all during that
long interval; it must have been for all practical purposes
non-existent. But during so long a period of total suspension,
the citizens would have lost all their respect for it; it could
not have retained so much influence as we know that it actually
possessed immediately before the Thirty (Lysias c. Eratosth.
c. 11, p. 126); and it would hardly have been revived after
the expulsion of the Thirty. Whereas, by preserving during
that period its jurisdiction in cases of homicide, apart from
those more extended privileges which had formerly rendered it
obnoxious, the ancient traditional respect for it was kept alive,
and it was revived, after the fall of the Thirty, as a venerable
part of the old democracy; even apparently with some extension of
privileges.
The inferences which O. Müller wishes to draw, as to the facts
of these times, from the Eumenides of Æschylus, appear to me
ill-supported. In order to sustain his view, that, by virtue
of the proposition of Ephialtês “the Areopagus almost entirely
ceased to be a high court of judicature,” (sect. 36, p. 109,)
he is forced to alter the chronology of the events, and to
affirm that the motion of Ephialtês must have been carried
subsequently to the representation of the Eumenides, though
Diodorus mentions it in the year next but one before, and there
is nothing to contradict him. All that we can safely infer from
the very indistinct allusions in Æschylus, is, that he himself
was full of reverence for the Areopagus, and that the season
was one in which party bitterness ran so high as to render
something like civil war (ἐμφύλιον Ἅρη, v. 864) within the scope
of reasonable apprehension. Probably, he may have been averse to
the diminution of the privileges of the Areopagus by Ephialtês:
yet even thus much is not altogether certain, inasmuch as he
puts it forward prominently and specially as a tribunal for
homicide, exercising this jurisdiction by inherent prescription,
and confirmed in it by the Eumenides themselves. Now when we
consider that such jurisdiction was precisely the thing confirmed
and left by Ephialtês to the Areopagus, we might plausibly argue
that Æschylus, by enhancing the solemnity and predicting the
perpetuity of the remaining privilege, intended to conciliate
those who resented the recent innovations, and to soften the
hatred between the two opposing parties.
The opinion of Boëckh, O. Müller, and Meier, respecting the
withdrawal from the senate of Areopagus of the judgments on
homicide, by the proposition of Ephialtês, has been discussed,
and in my judgment refuted, by Forchhammer, in a valuable
Dissertation, De Areopago non privato per Ephialten Homicidii
Judiciis. Kiel, 1828.
[685] This is the language of those authors whom Diodorus copied
(Diodor. xi, 77)—~οὐ μὴν ἀθρόως γε διέφυγε τηλικούτοις ἀνομήμασιν
ἐπιβαλόμενος~ (Ephialtês), ἀλλὰ τῆς νυκτὸς ἀναιρεθεὶς, ἄδηλον
ἔσχε τὴν τοῦ βίου τελευτήν. Compare Pausanias, i, 29, 15.
Plutarch (Periklês, c. 10) cites Aristotle as having mentioned
the assassination of Ephialtês. Antipho, however, states that the
assassin was never formally known or convicted (De Cæde Hero. c.
68).
The enemies of Periklês circulated a report, mentioned by
Idomeneus, that it was he who had procured the assassination
of Ephialtês, from jealousy of the superiority of the latter
(Plutarch, Periklês, c. 10). We may infer from this report how
great the eminence of Ephialtês was.
It is from this point that the administration of that great man may
be said to date: he was now the leading adviser, we might almost
say prime minister, of the Athenian people. His first years were
marked by a series of brilliant successes, already mentioned, the
acquisition of Megara as an ally, and the victorious war against
Corinth and Ægina. But when he proposed the great and valuable
improvement of the Long Walls, thus making one city of Athens and
Peiræus, the same oligarchical party which had opposed his judicial
changes and assassinated Ephialtês again stood forward in vehement
resistance. Finding direct opposition unavailing, they did not
scruple to enter into treasonable correspondence with Sparta,
invoking the aid of a foreign force for the overthrow of the
democracy; so odious had it become in their eyes since the recent
innovations. How serious was the hazard incurred by Athens, near the
time of the battle of Tanagra, has been already recounted; together
with the rapid and unexpected reconciliation of parties after that
battle, principally owing to the generous patriotism of Kimon and his
immediate friends. He was restored from ostracism on this occasion,
before his full time had expired, and the rivalry between him and
Periklês henceforward becomes mitigated, or even converted into a
compromise,[686] whereby the internal affairs of the city were left
to the one, and the conduct of foreign expeditions to the other. The
successes of Athens during the ensuing ten years were more brilliant
than ever, and she attained the maximum of her power: which doubtless
had a material effect in imparting stability to the democracy, as
well as to the administration of Periklês, and enabled both the one
and the other to stand the shock of those great public reverses,
which deprived the Athenians of their dependent landed alliances,
during the interval between the defeat of Korôneia and the thirty
years’ truce.
[686] The intervention of Elpinikê, the sister of Kimon, in
bringing about this compromise between her brother and Periklês,
is probable enough (Plutarch, Periklês, c. 10, and Kimon, c.
14). Clever and engaging, she seems to have played an active
part in the political intrigues of the day: but we are not at
all called upon to credit the scandals insinuated by Eupolis and
Stesimbrotus.
Along with the important judicial revolution brought about by
Periklês, were introduced other changes belonging to the same scheme
and system.
Thus a general power of supervision, both over the magistrates and
over the public assembly, was vested in seven magistrates, now
named for the first time, called Nomophylakes, or Law-Guardians,
and doubtless changed every year. These nomophylakes sat alongside
of the proëdri, or presidents, both in the senate and in the public
assembly, and were charged with the duty of interposing whenever
any step was taken or any proposition made contrary to the existing
laws: they were also empowered to constrain the magistrates to act
according to law.[687] We do not know whether they possessed the
presidency of a dikastery,—that is, whether they could themselves
cause one of the panels of jurors to be summoned, and put an alleged
delinquent on his trial before it, under their presidency, or whether
they were restricted to entering a formal protest, laying the alleged
illegality before the public assembly. To appoint magistrates,
however, invested with this special trust of watching and informing,
was not an unimportant step; for it would probably enable Ephialtês
to satisfy many objectors who feared to abolish the superintending
power of the Areopagus without introducing any substitute. The
nomophylakes were honored with a distinguished place at the public
processions and festivals, and were even allowed, like the archons,
to enter the senate of Areopagus after their year of office had
expired: but they never acquired any considerable power, such as
that senate had itself exercised. Their interference must have been
greatly superseded by the introduction and increasing application of
the Graphê Paranomôn, presently to be explained; nor are they even
noticed in the description of that misguided assembly which condemned
the six generals after the battle of Arginusæ, by a gross violation
of legal form not less than of substantial justice.[688] After the
expulsion of the Thirty, the senate of Areopagus was again invested
with a supervision over magistrates, though without anything like its
ancient ascendency.
[687] We hear about these nomophylakes in a distinct statement
cited from Philochorus, by Photius, Lexic. p. 674, Porson.
Νομοφύλακες· ἕτεροί εἰσι τῶν θεσμοθετῶν, ὡς Φιλόχορος ἐν ζ’· οἱ
μὲν γὰρ ἄρχοντες ἀνέβαινον εἰς Ἄρειον πάγον ἐστεφανώμενοι, οἱ
δὲ νομοφύλακες χρύσια στρόφια ἄγοντες· καὶ ταῖς θεαῖς ἐνάντιον
ἀρχόντων ἐκαθέζοντο· καὶ τὴν πομπὴν ἔπεμπον τῇ Παλλάδι· τὰς δὲ
ἀρχὰς ἠνάγκαζον τοῖς νόμοις χρῆσθαι· καὶ ἐν τῇ ἐκκλησίᾳ καὶ ἐν
τῇ βουλῇ μετὰ τῶν προέδρων ἐκάθηντο, κωλύοντες τὰ ἀσύμφορα τῇ
πόλει πράττειν· ἕπτα δὲ ἦσαν· καὶ κατέστησαν, ὡς Φιλόχορος, ὅτε
Ἐφιάλτης μόνῃ κατέλιπε τῇ ἐξ Ἀρείου πάγου βουλῇ τὰ ὑπὲρ τοῦ
σώματος.
Harpokration, Pollux, and Suidas, give substantially the same
account of these magistrates, though none except Photius mentions
the exact date of their appointment. There is no adequate ground
for the doubt which M. Boëckh expresses about the accuracy of
this statement: see Schömann, Antiq. Jur. Pub. Græc. sect. lxvi;
and Cicero, Legg. iii, 20.
[688] See Xenophon, Hellenic. i, 7; Andokidês de Mysteriis, p. 40.
Another important change which we may with probability refer to
Periklês, is the institution of the Nomothetæ. These men were, in
point of fact, dikasts, members of the six thousand citizens annually
sworn in that capacity. But they were not, like the dikasts for
trying causes, distributed into panels, or regiments, known by a
particular letter, and acting together throughout the entire year:
they were lotted off to sit together only on special occasion and
as the necessity arose. According to the reform now introduced,
the ekklesia, or public assembly, even with the sanction of the
senate of Five Hundred, became incompetent either to pass a new
law or to repeal a law already in existence; it could only enact a
_psephism_,—that is, properly speaking, a decree, applicable only
to a particular case; though the word was used at Athens in a very
large sense, sometimes comprehending decrees of general as well as
permanent application. In reference to laws, a peculiar judicial
procedure was established. The thesmothetæ were directed annually
to examine the existing laws, noting any contradictions or double
laws on the same matter; and in the first prytany (tenth part)
of the Attic year, on the eleventh day, an ekklesia was held, in
which the first business was to go through the laws _seriatim_, and
submit them for approval or rejection: first beginning with the
laws relating to the senate, next, those of more general import,
especially such as determined the functions and competence of the
magistrates. If any law was condemned by the vote of the public
assembly, or if any citizen had a new law to propose, the third
assembly of the prytany was employed, previous to any other business,
in the appointment of nomothetæ, and in the provision of means to pay
their salary. Previous notice was required to be given publicly by
every citizen who had new propositions of the sort to make, in order
that the time necessary for the sitting of the nomothetæ might be
measured according to the number of matters to be submitted to their
cognizance. Public advocates were farther named to undertake the
formal defence of all the laws attacked, and the citizen who proposed
to repeal them had to make out his case against this defence, to the
satisfaction of the assembled nomothetæ. These latter were taken
from the six thousand sworn dikasts, and were of different numbers
according to circumstances: sometimes we hear of them as five
hundred, sometimes as one thousand, and we may be certain that the
number was always considerable.
The effect of this institution was, to place the making or repealing
of laws under the same solemnities and guarantees as the trying of
causes or accusations in judicature. We must recollect that the
citizens who attended the ekklesia, or public assembly, were not
sworn like the dikasts; nor had they the same solemnity of procedure,
nor the same certainty of hearing both sides of the question set
forth, nor the same full preliminary notice. How much the oath sworn
was brought to act upon the minds of the dikasts, we may see by the
frequent appeals to it in the orators, who contrast them with the
unsworn public assembly.[689] And there can be no doubt that the
nomothetæ afforded much greater security than the public assembly,
for a proper decision. That security depended upon the same principle
as we see to pervade all the constitutional arrangements of Athens;
upon a fraction of the people casually taken, but sufficiently
numerous to have the same interest with the whole,—not permanent, but
delegated for the occasion,—assembled under a solemn sanction, and
furnished with a full exposition of both sides of the case. The power
of passing psephisms, or special decrees, still remained with the
public assembly, which was doubtless much more liable to be surprised
into hasty or inconsiderate decision than either the dikastery or the
nomothetæ,—in spite of the necessity of previous authority from the
senate of Five Hundred, before any proposition could be submitted to
it.
[689] Demosthen. cont. Timokrat. c. 20, pp. 725, 726. Ἆρ’ οὖν τῷ
δοκεῖ συμφέρειν τῇ πόλει τοιοῦτος νόμος, ὃς δικαστηρίου γνώσεως
αὐτὸς κυριώτερος ἔσται, καὶ τὰς ὑπὸ τῶν ὀμωμοκότων γνώσεις τοῖς
ἀνωμότοις προστάξει λύειν; Ἐνθυμεῖσθε, ἀπὸ τοῦ δικαστηρίου
καὶ τῆς καταγνώσεως οἷ διεπήδησεν (Timokratês) ἐπὶ τὸν δῆμον,
ἐκκλέπτων τὸν ἠδικηκότα! Compare Demosthen. cont. Eubulid. c. 15.
See, about the nomothetæ, Schömann, De Comitiis, ch. vii, p.
248, _seqq._, and Platner, Prozess und Klagen bey den Attikern,
Abschn. ii, 3, 3, p. 33, _seqq._
Both of them maintain, in my opinion erroneously, that the
nomothetæ are an institution of Solon. Demosthenês, indeed,
ascribes it to Solon (Schömann, p. 268): but this counts, in my
view, for nothing, when I see that all the laws which he cites
for governing the proceedings of the nomothetæ, bear unequivocal
evidence of a time much later. Schömann admits this to a certain
extent, and in reference to the style of these laws,—“Illorum
quidem fragmentorum, quæ in Timokrateâ extant, _recentiorem
Solonis ætate formam atque orationem apertum est_.” But it is not
merely the style which proves them to be of post-Solonian date:
it is the mention of post-Solonian institutions, such as the ten
prytanies into which the year was divided, the ten statues of
the eponymi,—all derived from the creation of the ten tribes by
Kleisthenês. On the careless employment of the name of Solon by
the orators, whenever they desire to make a strong impression on
the dikasts, I have already remarked.
As an additional security both to the public assembly and the
nomothetæ against being entrapped into decisions contrary to existing
law, another remarkable provision has yet to be mentioned,—a
provision probably introduced by Periklês at the same time as the
formalities of law-making by means of specially delegated nomothetæ.
This was the Graphê Paranomôn,—indictment for informality or
illegality,—which might be brought on certain grounds against the
proposer of any law or any psephism, and rendered him liable to
punishment by the dikastery. He was required, in bringing forward his
new measure, to take care that it should not be in contradiction with
any preëxisting law,—or if there were any such contradiction, to give
formal notice of it, to propose the repeal of that which existed, and
to write up publicly beforehand what his proposition was,—in order
that there might never be two contradictory laws at the same time
in operation, nor any illegal decree passed either by the senate
or by the public assembly. If he neglected this precaution, he was
liable to prosecution under the graphê paranomôn, which any Athenian
citizen might bring against him before the dikastery, through the
intervention and under the presidency of the thesmothetæ.
Judging from the title of this indictment, it was originally confined
to the special ground of formal contradiction between the new and
the old. But it had a natural tendency to extend itself: the citizen
accusing would strengthen his case by showing that the measure which
he attacked contradicted not merely the letter, but the spirit and
purpose of existing laws,—and he would proceed from hence to denounce
it as generally mischievous and disgraceful to the state. In this
unmeasured latitude, we find the graphê paranomôn at the time of
Demosthenês: the mover of a new law or psephism, even after it had
been regularly discussed and passed, was liable to be indicted, and
had to defend himself not only against alleged informalities in
his procedure, but also against alleged mischiefs in the substance
of his measure. If found guilty by the dikastery, the punishment
inflicted upon him by them was not fixed, but variable according to
circumstances; for the indictment belonged to that class wherein,
after the verdict of guilty, first a given amount of punishment was
proposed by the accuser, next, another and lighter amount was named
by the accused party against himself,—the dikastery being bound to
make their option between one and the other, without admitting any
third modification,—so that it was the interest even of the accused
party to name against himself a measure of punishment sufficient to
satisfy the sentiment of the dikasts, in order that they might not
prefer the more severe proposition of the accuser. At the same time,
the accuser himself, as in other public indictments, was fined in the
sum of one thousand drachms, unless the verdict of guilty obtained
at least one-fifth of the suffrages of the dikastery. The personal
responsibility of the mover, however, continued only one year after
the introduction of his new law: if the accusation was brought at a
greater distance of time than one year, the accuser could invoke no
punishment against the mover, and the sentence of the dikasts neither
absolved nor condemned anything but the law. Their condemnation of
the law, with or without the author, amounted _ipso facto_ to a
repeal of it.
Such indictment against the author of a law or of a decree, might be
preferred either at some stage prior to its final enactment,—as after
its acceptance simply by the senate, if it was a decree, or after its
approval by the public assembly, and prior to its going before the
nomothetæ, if it was a law,—or after it had reached full completion
by the verdict of the nomothetæ. In the former case, the indictment
stayed its farther progress until sentence had been pronounced by the
dikasts.
This regulation is framed in a thoroughly conservative spirit, to
guard the existing laws against being wholly or partially nullified
by a new proposition. As, in the procedure of the nomothetæ, whenever
any proposition was made for distinctly repealing any existing law,
it was thought unsafe to intrust the defence of the law so assailed
to the chance of some orator gratuitously undertaking it, and paid
advocates were appointed for the purpose; so also, when any citizen
made a new positive proposition, sufficient security was not supposed
to be afforded by the chance of opponents rising up at the time;
and a farther guarantee was provided in the personal responsibility
of the mover. That the latter, before he proposed a new decree or a
new law, should take care that there was nothing in it inconsistent
with existing laws,—or, if there were, that he should first formally
bring forward a direct proposition for the repeal of such preëxistent
law,—was in no way unreasonable: it imposed upon him an obligation
such as he might perfectly well fulfil,—it served as a check upon
the use of that right, of free speech and initiative in the public
assembly, which belonged to every Athenian without exception,[690]
and which was cherished by the democracy as much as it was condemned
by oligarchical thinkers,—it was a security to the dikasts, who
were called upon to apply the law to particular cases, against the
perplexity of having conflicting laws quoted before them, and being
obliged in their verdict to set aside either one or the other. In
modern European governments, even the most free and constitutional,
laws have been both made and applied either by select persons or
select assemblies, under an organization so different as to put out
of sight the idea of personal responsibility on the proposer of
a new law. Moreover, even in such assemblies, private initiative
has either not existed at all, or has been of comparatively little
effect, in law-making; while in the application of laws when made,
there has always been a permanent judicial body exercising an
action of its own, more or less independent of the legislature, and
generally interpreting away the text of contradictory laws so as to
keep up a tolerably consistent course of forensic tradition. But
at Athens, the fact that the proposer of a new decree, or of a new
law, had induced the senate or the public assembly to pass it, was
by no means supposed to cancel his personal responsibility, if the
proposition was illegal: he had deceived the senate or the people, in
deliberately keeping back from them a fact which he knew, or at least
might and ought to have known.
[690] The privation of this right of public speech (παῤῥησία)
followed on the condemnation of any citizen to the punishment
called ἀτιμία, disfranchisement, entire or partial (Demosthen.
cont. Neær. p. 1352, c. 9; cont. Meidiam, p. 545, c. 27). Compare
for the oligarchical sentiment, Xenophon, Republ. Athen. i, 9.
But though a full justification may thus be urged on behalf of the
graphê paranomôn, as originally conceived and intended, it will
hardly apply to that indictment as applied afterwards in its plenary
and abusive latitude. Thus Æschinês indicts Ktesiphon under it for
having, under certain circumstances, proposed a crown to Demosthenês.
He begins by showing that the proposition was illegal,—for this
was the essential foundation of the indictment: he then goes on
farther to demonstrate, in a splendid harangue, that Demosthenês
was a vile man and a mischievous politician: accordingly, assuming
the argument to be just, Ktesiphon had deceived the people in an
aggravated way,—first, by proposing a reward under circumstances
contrary to law; next, by proposing it in favor of an unworthy man.
The first part of the argument only is of the essence of the graphê
paranomôn: the second part is in the nature of an abuse growing out
of it,—springing from that venom of personal and party enmity which
is inseparable, in a greater or less degree, from free political
action, and which manifested itself with virulence at Athens, though
within the limits of legality. That this indictment, as one of the
most direct vents for such enmity, was largely applied and abused
at Athens, is certain; but though it probably deterred unpractised
citizens from originating new propositions, it did not produce the
same effect upon those orators who made politics a regular business,
and who could therefore both calculate the temper of the people,
and reckon upon support from a certain knot of friends. Aristophon,
towards the close of his political life, made it a boast that he had
been thus indicted and acquitted seventy-five times. Probably, the
worst effect which it produced was that of encouraging the vein of
personality and bitterness which pervades so large a proportion of
Attic oratory, even in its most illustrious manifestations; turning
deliberative into judicial eloquence, and interweaving the discussion
of a law, or decree, along with a declamatory harangue against the
character of its mover. We may at the same time add that the graphê
paranomôn was often the most convenient way of getting a law or a
psephism repealed, so that it was used even when the annual period
had passed over, and when the mover was therefore out of danger,—the
indictment being then brought only against the law, or decree, as
in the case which forms the subject of the harangue of Demosthenês
against Leptinês. If the speaker of this harangue obtained a verdict,
he procured at once the repeal of the law, or decree, without
proposing any new provision in its place; which he would be required
to do,—if not peremptorily, at least by common usage,—if he had
carried the law for repeal before the nomothetæ.
The dikasteries provided under the system of Periklês varied
in number of members: we never hear of less than two hundred
members,—most generally of five hundred,—and sometimes also of
one thousand, fifteen hundred, two thousand members, on important
trials.[691] Each man received pay from the treasurers, called
Kolakretæ, after his day’s business was over, of three oboli, or half
a drachm: at least this was the amount paid during the early part
of the Peloponnesian war. M. Boëckh supposes that the original pay
proposed by Periklês was one obolus, afterwards tripled by Kleon; but
his opinion is open to much doubt. It was indispensable to propose
a measure of pay sufficient to induce citizens to come, and come
frequently, if not regularly: now one obolus seems to have proved
afterwards an inadequate temptation even to the ekklesiasts, or
citizens who attended the public assembly, who were less frequently
wanted, and must have had easier sittings, than the dikasts: much
less, therefore, would it be sufficient in the case of the latter.
I incline to the belief that the pay originally awarded was three
oboli:[692] the rather, as these new institutions seem to have
nearly coincided in point of time with the transportation of the
confederate treasure from Delos to Athens,—so that the exchequer
would then appear abundantly provided. As to the number of dikasts
actually present on each day of sitting, or the minimum number
requisite to form a sitting, we are very imperfectly informed. Though
each of the ten panels or divisions of dikasts included five hundred
individuals, seldom probably did all of them attend; but it also
seldom happened, probably, that all the ten divisions sat on the same
day: there was therefore an opportunity of making up deficiencies
in division Α, when its lot was called and when its dikasts did not
appear in sufficient numbers, from those who belonged to division Β
or Δ, besides the supplementary dikasts who were not comprised in any
of the ten divisions: though on all these points we cannot go beyond
conjecture. Certain it is, however, that the dikasteries were always
numerous, and that none of the dikasts could know in what causes they
would be employed, so that it was impossible to tamper with them
beforehand.[693]
[691] See Meier, Attisch. Prozess, p. 139. Andokidês mentions a
trial under the indictment of γραφὴ παρανόμων, brought by his
father Leogoras against a senator named Speusippus, wherein six
thousand dikasts sat,—that is, the entire body of heliasts.
However, the loose speech so habitual with Andokidês, renders
this statement very uncertain (Andokidês de Mysteriis, p. 3, §
29).
See Matthiæ, De Judiciis Atheniensium, in his Miscellanea
Philologica, vol. i, p. 252. Matthiæ questions the reading of
that passage in Demosthenês (cont. Meideam, p. 585), wherein two
hundred dikasts are spoken of as sitting in judgment: he thinks
it ought to be πεντακοσίους instead of διακοσίους,—but this
alteration would be rash.
[692] See on this question, Boëckh, Public Econ. of Athens, ch.
xv, p. 233; K. F. Hermann, Griech. Staatsalt. § 134.
The proof which M. Boëckh brings to show, first, that the
original pay was one obolus,—next, that Kleon was the first to
introduce the triobolus,—is in both cases very inconclusive.
Certain passages from the Scholiast, stating that the pay of
the dikasts fluctuated (οὐκ ἕστηκεν—ἄλλοτε ἄλλως ἐδίδοτο) do
not so naturally indicate a rise from one obolus to three, as a
change backwards and forwards according to circumstances. Now
it seems that there were some occasions when the treasury was
so very poor that it was doubtful whether the dikasts could be
paid: see Lysias, cont. Epikrat. c. 1; cont. Nikomach. c. 22; and
Aristophan. Equit. 1370. The amount of pay may, therefore, have
been sometimes affected by this cause.
[693] There is a remarkable passage on this point in the treatise
of Xenophon, De Republic. Athen. iii, 6. He says:—
Φέρε δὴ, ἀλλὰ φησί τις χρῆναι δικάζειν μὲν, ἐλάττους δὲ δικάζειν.
Ἀνάγκῃ τοίνυν, ἐὰν μὲν πολλὰ (both Weiske and Schneider
substitute πολλὰ here in place of ὀλίγα, which latter makes
no sense) ποιῶνται δικαστήρια, ὀλίγοι ἐν ἑκάστῳ ἔσονται τῷ
δικαστηρίῳ· ὥστε καὶ διασκευάσασθαι ῥᾴδιον ἔσται πρὸς ὀλίγους
δικαστὰς, καὶ συνδεκάσαι (so Schneider and Matthiæ, in place of
συνδικάσαι) πολὺ ἧττον δικαίως δικάζειν.
That there was a good deal of bribery at Athens, where
individuals could be approached and dealt with, is very probable
(see Xenoph. de Repub. Ath. iii. 3): and we may well believe
that there were also particular occasions on which money was
given to the dikasts, some of whom were punished with death for
such corrupt receipt (Æschinês cont. Timarch. c. 17-22, pp.
12-15). But the passage above quoted from Xenophon, an unfriendly
witness, shows that the precautions taken to prevent corruption
of the dikasteries were well-devised and successful, though these
precautions might sometimes be eluded.
Such were the great constitutional innovations of Periklês and
Ephialtês,—changes full of practical results,—the transformation as
well as the complement of that democratical system which Kleisthenês
had begun, and to which the tide of Athenian feeling had been
gradually mounting up, during the preceding twenty years. The entire
force of these changes is generally not perceived, because the
popular dikasteries and the nomothetæ are so often represented as
institutions of Solon, and as merely supplied with pay by Periklês.
This erroneous supposition prevents all clear view of the growth of
the Athenian democracy, by throwing back its last elaborations to the
period of its early and imperfect start. To strip the magistrates
of all their judicial power, except that of imposing a small fine,
and the Areopagus of all its jurisdiction, except in cases of
homicide,—providing popular, numerous, and salaried dikasts to decide
all the judicial business at Athens, as well as to repeal and enact
laws; this was the consummation of the Athenian democracy: no serious
constitutional alteration—I except the temporary interruptions of the
Four Hundred and the Thirty—was afterwards made until the days of
Macedonian interference. As Periklês made it, so it remained in the
days of Demosthenês,—though with a sensible change in the character,
and abatement in the energies, of the people, rich as well as poor.