Chapter XLVI (1)

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._