A 58374 4
ATHENIAN CONSTITUTIONAL BISTORY
SOHOMANN ON GROTE
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EXERTETTERTYPARAN KERJAAN TA
ATHENIAN CONSTITUTIONAL HISTORY.
ATHENIAN CONSTITUTIONAL HISTORY,
AS REPRESENTED IN
GROTE'S HISTORY OF GREECE,
CRITICALLY EXAMINED BY
Aut
G. F. SCHÖMANN:
Translated, with the Author's permission,
BY
BERNARD BOSANQUET, M.A.
FELLOW AND TUTOR OF UNIVERSITY COLLEGE, OXFORD.
Oxford and London :
JAMES PARKER AND CO.
1878.

B.CO.
KER
ORG
RADOYLE
4
9.21.38
and cyra
TRANSLATOR'S PREFACE.
THE conclusions reached in this criticism (pub-
lished, 1854) are substantially the same as those
of the corresponding part of Professor Schömann's
Handbuch (Berlin, 1870). This criticism, however,
deals at length with the relation of Grote's opinions
to the ancient authorities; and is, therefore, of spe-
cial interest and importance to English students,
who may desire to verify what they read in Grote
or in Curtius. It may be advantageously used as
a commentary on the "Materials for the History of
Athenian Democracy, from Solon to Pericles," re-
cently collected by Mr. Case, to which reference
might have been made on every page; but a gene-
ral reference here is sufficient.
The references to Grote's pages are to the eight
volume edition of 1862; the chapters, which are
the same in all editions, have been added, to facili-
tate reference. The division into sections, their
headings, and the table of contents, are the work
of the translator; who has also added a few notes.
in brackets [].
§ 1. INTRODUCTORY
§ 2. THE FOUR TRIBES AND THEIR DIVISIONS:—
(a.) Their Names significant
(b.) Local as well as Family Unions
(c.) Relation of ëðvŋ and tpittves to Phratries
§ 3. RELATIONS BETWEEN THE TOWNS OF ATTIKA BEFORE
SYNŒŒECISM
§ 4. DRAKO
§ 5. SOLON
TABLE OF CONTENTS.
•
•
(a.) Was there Democratic sentiment in his time?
(b.) Grote's mis-reading of Plutarch
(c.) Seisachtheia and Amnesty .
(d.) Timocratic Classification
(e.) Principles on which distinction is to be made be-
tween Solonian and later institutions
(f.) List of Solon's Constitutional enactments
(g.) Passages examined (on Powers of Assembly, and
Judicial function of People)
(h.) Helixa and Popular Assembly were not the same
(i.) (i.) There were Dikasteries.
(ii.) The Assembly could not legislate.
(i.) There were Dikasteries.
(a.) Examination of Passages
(8.) Other Courts, lightening the work of the
Dikasteries.
Local Judges (κατὰ δήμους δικασταὶ)
Diætetæ
Nautodikæ
Archons' Judicial powers not such as to ex-
clude Dikasteries .
Relation of Diætetæ to Dikasteries
(y.) Comparison of Province of earlier and later
Dikasteries
•
PAGE
1
3
10
12
15
17
19
20
21
23
27
34
35
38
40
45
46
50
ib.
52
54
!
viii
TABLE OF CONTENTS.
::
(ii.) The Assembly could not legislate.
(a.) Procedure before Nomothetæ in the time of
Demosthenes
(8.) No improbability in the enactment of such
a procedure by Solon
(y.) Grote's arguments against Solonian origin of
Nomothetæ
§ 6. KLEISTHENES:
(a.) Kleisthenes made only 100 Demes .
(b.) Kleisthenes made 50 Naukraries
(c.) Kleisthenes admitted no free native Athenians to
the Franchise
(d.) Difference between Orgeones and Gennetæ
(e.) Institutions connected with the Ten Tribes
(f.) The Lot introduced by Kleisthenes
(g.) The Areopagus in the time of Kleisthenes .
(h.) Ostracism abused by the Athenians
(i.) Form of Procedure in Ostracism
(k.) Kleisthenes' Reforms not before 507 B.C.
§ 7. CHANGES BETWEEN KLEISTHENES AND PERIKLES
§ 8. CHANGES UNDER PERIKLES:
黴
​(a.) List of Changes mentioned by the Ancients, and
also of those vouched for by Grote
(b.) Not improbable that these latter Institutions were
older than Perikles
(c.) Judicial pay at first one Obol
(d.) Δικαὶ ἀπὸ συμβόλων included all Law-suits carried on
by Allies at Athens
§ 9. THE REVISION OF THE LAWS UNDER EUKLEIDES NOT
CAUSED BY THE AMNESTY
•
§ 10. REASONS FOR ARISTOPHON'S LAW ABOUT CITIZENSHIP
§ 11. PROPOSAL OF PHORMISIUS TO RESTRICT THE FRANCHISE
NOT OLIGARCHIC
§ 12. CRITICISM OF GROTE'S ESTIMATE OF THE АThenian De-
MOCRACY
•
•
PAGE
56
58
60
64
68
69
71
72
73
82
85
86
87
ib.
88
89
93
94
96
98
100
103
Schömann on the Constitutional
History of Athens.
§ 1. INTRODUCTORY.
IN
N his History of Greece, Mr. Grote has produced a work,
the study of which cannot be too urgently recommended
to all who are concerned to acquaint themselves with Greek
Antiquity. It presents a combination of merits which few
historical works of any kind present in the same degree;
and certainly none of the works which have hitherto treated
of Greek History. It displays the most accurate acquaint-
ance, based on the profoundest and most comprehensive
studies, with the whole of Greek antiquity, as far as its
productions have come down to us; the most careful con-
sideration of modern researches, in all cases where consi-
deration is due; penetrating criticism in the employment
both of the authorities, and of the results which moderns
have obtained from them; and finally, a clear, intelligible,
and interesting narrative style, by which the reader's in-
tellect, and where the subject allows of such treatment, his
sympathies and feelings as well, are roused and delighted.
His familiar intercourse with the works of the Hellenic
past, has imbued the author with the mind and spirit of
that past he can live, as it were, with the ancient Hellenes;
and he thinks and feels as a contemporary of the men whose
acts and destiny he narrates. Yet, though he so perfectly
adopts the stand-point of the times of which he writes, so
thoroughly enters into the modes of thought and feeling of
the men whom he sets before us, and though he is so ready
to follow them in all their connections, relations, and ten-
dencies, still he always maintains the attitude of the im-
partial observer who is on a higher level than his subject;
the liveliest sympathy with the actors does not impair the
independence and impartiality of his judgment.
B
2
Schömann on the Constitutional History of Athens.
The history of Greece must, of course, be especially a his-
tory of Athens, the eye of Greece, the Prytaneum and
sacred hearth of the Hellenic world, the Hellas within
Hellas. In saying that Mr. Grote has written of Athens
in a way worthy of his subject, I conceive that I am giving
praise which is at once his due, and the highest that can
be desired. These words of praise, and of genuine gratitude
for the abundant profit which I draw from repeated readings
of his work, are a preface which I hold myself bound to
prefix to the following pages, which are devoted to the
discussion of some of the subjects, his account of which
appears to me less satisfactory. The reason why the public
discussion of these subjects seems to me not to be superfluous,
is that the great esteem in which Mr. Grote's work is held
by all who know it-and I hope that there may be many
who do so even in Germany, not to speak of England, where
it has been received with the most unanimous applause-may
very easily have the effect of causing views put forward by
Mr. Grote, to pass for the right ones with most readers,
merely because it is he that puts them forward. Where-
ever he has occasion to doubt or dispute the views of his
predecessors, Mr. Grote shews himself so profound and cautious
a critic, that this at once inclines us to presume that he
would not have brought forward what he does as his own
view without the same profound and cautious criticism, and
that it therefore merits entire confidence. But no judicious
person, least of all Mr. Grote himself, will be offended if,
in spite of my complete recognition of the excellence of his
work as a whole, I do not conceal that there are many
points on which I have to regret the absence of the pro-
foundness and the care which his critical procedure else-
where displays. I do not propose to write a review of his
whole work, but will confine myself to a particular part,
which I cannot persuade myself that Mr. Grote has treated
more correctly than his predecessors, from whom he deviates
in many points. This part is one which of course is among
the most important, viz. the constitution of Athens, and the
various stages of its growth.
I intend very shortly to produce a more popular account
L
The Four Tribes.
3
of Greek antiquities, in which the Athenian polity will
naturally have a principal place; the present work may
serve as an anticipatory justification, if in that account
I merely, for the most part, repeat what I have formerly
asserted in other writings about the Athenian polity, with-
out entering into Mr. Grote's divergent views, for the esti-
mation of which the plan of the work alluded to affords
no suitable place.
§ 2. THE FOUR TRIBES AND THEIR DIVISIONS.
(a.) Their Names significant.
-
In point of fact, the history of the Athenian constitution
only begins with the legislation of Solon. This was the
basis of the constitution of later times, which we know from
our authorities with tolerable completeness and accuracy:
though in many cases it cannot be determined with cer-
tainty, how much in the later constitution should be as-
cribed to Solon, and how much to later legislators, who
built on the foundations which he laid. About the times
before Solon, and the earliest institutions of the state, we
find in our authorities only a few isolated notices, in part
obviously fictitious, from which little can be drawn that
is of value for history. We hear of a union of several
communities, previously separate, into a single collective
state; divisions of the people by clans and classes are
noticed; we are told how archons were instituted after
the abolition of the monarchy, at first hereditary with
a life tenure, then decennial, then an annual college of
nine; and finally, there are hints of one or another deli-
berative or judicial authority; but all the more definite
points of the constitution and administration are wrapped
in deep obscurity, to illuminate which we have no means
at command. Here, as elsewhere, there has not been want-
ing an abundance of attempts to fill up the gaps in our
knowledge by conjectures, and many of these conjectures
cannot be denied the merit of ingenuity: but of course
this gives them no claim to rank as history. Mr. Grote,
rightly feeling that it is one thing to write history, and
B 2
4 Schömann on the Constitutional History of Athens.
another to make ingenious conjectures, has not only refrained
from them himself, but has for the most part passed over
in silence those of earlier authors; and his doing so merits
nothing but approval. Still there is one point in which
he seems to have carried his critical reserve a little too
far, and to have rejected a view which results so necessarily
from unambiguous indications, that it may claim to rank
as more than a mere conjecture. This point concerns the
question about the original constitution of the four ancient
tribes of the Athenian people, of which question I must
therefore permit myself to speak somewhat in detail.
The most ancient division of the people, the reality of
which cannot be doubted, is that into the four tribes
(Phyla), Geleontes, Hopletes, Argadeis, and Ægikoreis;
which, according to the legend mentioned in Herodotus
(5. 66) and Euripides (Ion, 1. 1575 ff.), were derived from
the four sons of Ion, the mythical Eponymus of the Ionic
race. This traditional derivation was the reason which
impelled the writers of Atthides, at a later time, to venture
upon conjectures as to an earlier tribal division antecedent
to that in question. As the prevailing legend did not place
Ion at the head of Athenian history, but named a succession
of kings previous to him, the question forced itself upon
these antiquaries, whether there were not tribes in the
times before Ion also, and what they were. It is obvious
that this question could only be answered by hypotheses.
The number of the ancient tribes which hypothesis was to
furnish did not need to exceed four, because there were no
more of the historical Ionic tribes, and there was no reason
to suppose that any larger number had been decreased by
a union of several tribes into one; and further, there was
no occasion for assuming fewer than four. So the number
was retained, and names were easily found for the four
tribes, partly from the denominations of the principal dis-
tricts of the country; partly, perhaps, from traces of the
cultus formerly prevalent in these districts.
As an inscription recently discovered indicates Zeus
Geleon to have been the tribal deity of the Geleontes, we
may assume that the other tribes had also their tribal
The Four Tribes.
5
deities; the Ægikoreis perhaps Athene, which may have
induced Euripides to derive their name from the ægis of
the goddess, the Hopletes Poseidon, the Argadeis Heph-
æstus. Hence were obtained the four tribes, Dias, Athenais,
Poseidonias, Hephaestias. But the mere possibility that this
may have been so, is all that any judicious person would
maintain. The division, alleged to be yet more ancient,
into the tribes Kekropis, Autochthon, Aktæa, Paralia; and
again into Kranais, Atthis, Mesogæa, and Diakris, is ob-
viously a pure invention. We may imagine tribes like
Mesogæa, Aktæa, Paralia, Diakris; but no one can help
regarding it as a mere conceit, that in this extraordinary
way there should be ascribed to the same time two tribes
Aktæa and Paralia, named after local districts, and two
named not after districts, but after something else; and
that the same extraordinary fact should have repeated itself
in a subsequent change of names, the two which before got
their names elsewhere being now named after districts, and
the two before named after districts now getting names
elsewhere. This is so, apart from the objection that might
be taken to names like Atthis, Autochthon, and Kranais.
Yet, however little we may believe these notices, we are not
on that account to deny them all value. At least, they
furnish an indication that the antiquaries with whom they
originated, are to be counted as believing that the tribe-
division was connected with the local division, and that the
inhabitants of one and the same district were also associates
of one and the same tribes, and that therefore the ancient
tribes were local divisi ns (pvλaì Toπikaí) as well. Now
some moderns, among hom is Mr. Grote, are disposed to
regard them as family divisions (þvλal yevɩkaí) only, and
to regard the local tribes as not instituted before Kleis-
thenes; whose tribes were indeed purely local when insti-
tuted, but, as is well known, did not remain by any
means exclusively so, as families even if they changed
their residence, and migrated into other parts of the coun-
try, still continued to be members of the same Phyle as
that to which their ancestors belonged in the time of
Kleisthenes.
τοπι
}
6
Schömann on the Constitutional History of Athens.
""
""
Three of the four Ionic tribes have decidedly signifi-
cant names,-Hopletes, Argadeis, Ægikoreis. It cannot be
doubted that the first of these names meant "warriors,'
especially warriors who fought in panoply, that is as Hop-
lites, not as light-armed. It is clear, too, that Argadeis
meant "working-men," though it is uncertain what class of
working-men is to be understood: whether agricultural la-
bourers or artisans. Ægikoreis can only mean "goat-herds."
But it is true that the name Geleontes admits of no certain
interpretation, but only of a conjectural one; that it cannot
have been other than significant may be asserted with entire
confidence. Now if the names are significant, the con-
clusion is of necessity forced upon us, that they were given
to the tribes not arbitrarily, but because of their signifi-
cance. This was the view of the ancient enquirers, whose
opinions we learn from Strabo and Plutarch. The former
says (viii. 383) that Ion divided the people into four tribes,
and then assigned to it four different ways of life; to some
agriculture, to some handicrafts, to others the sacerdotal
organization, and to others the defence of the country. He
does not mention the names of the tribes; but it cannot be
doubted that he knew them; and it is equally certain that
he did not conceive the assignation of ways of life, as an
ordinance distinct from, and unconnected with, the division
into tribes, but that his notion was that of each tribe being
assigned its peculiar occupation, after the division by tribes
had been made.
Further, it is equally clear that by the class devoted to
the country's defence-púλakes, as he calls them-he meant
the Hopletes; and likewise, that in speaking of the handi-
craftsmen (dnμlovpyoîs), he could only be thinking of the
Argadeis. So there remain only the Geleontes and Ægi-
koreis for the priests (ieporоlol), and the field-labourers
(yewpyoí), and it is open to every one to choose which he
will consider as corresponding to which. I need hardly
add an assurance in so many words, that I am not referring
to Strabo, with the idea that instruction is really to be got
from him about the system of the old tribes and their occu-
pations, but only as evidence for the assertion, that even
The Four Tribes.
7
the ancients believed in a connection between the tribes
and the crafts or professions. Besides, Strabo's view about
the crafts was clearly determined by Plato, who in the
Timæus represents a division corresponding to the Egyptian
castes as existing in primitive times in Attika as well,
consisting of priests; craftsmen; a third class including
shepherds, hunters, and field-labourers; and lastly the war-
riors. We can see that the first of these classes is Strabo's
ἱεροποιοί, the second his δημιουργοί, the third his γεωργοί,
the fourth his púλakes; and this name is enough to shew
that Strabo had in his mind a floating reminiscence of Plato,
who, as is well known, employs the name in the Republic for
his class of soldiers. Independent of Plato as it appears
is Plutarch, Solon, c. 23, who leaves out the priests, and
makes the Hopletes soldiers, the Argadeis (or Ergadeis)
working-men, the Ægikoreis shepherds, the Geleontes-
for the name stands so in the MSS. in that place-field-
labourers. Plutarch's statement, like Strabo's, is of course
not to be counted as evidence of the real constitution of
the tribes, but only as a proof that the ancients, too, believed
the tribe-names to have a meaning, and to have been given
to the tribes just because of their meaning. It can hardly
be doubted that Plutarch and Strabo were far from standing
alone in that opinion; it is extremely probable that the
majority held the same view, and Plutarch very likely
found what he asserts in one of the authorities whom he
used for his biography of Solon. The view in question is
far more rational, than to imagine that these significant
names were assigned to the tribes without reference to their
meaning, and so quite arbitrarily; and that therefore, as
tribe names, they are in fact meaningless.
And this appears to be Mr. Grote's judgment also, when
he says, "It is affirmed, and with some etymological plausi-
bility, that the denominations of these four tribes must origi-
nally have had reference to the occupations of those who
bore them ;" and when he adds, "The names of the tribes
may have been originally borrowed from certain professions,
but it does not necessarily follow that the reality corre-
a Vol. iii. p. 262, 3 (p. ii. c. 10.)
K
8
Schömann on the Constitutional History of Athens.
sponded to this derivation, or that every individual who
belonged to any tribe was a member of the profession from
whence the name had originally been derived." With
this I have only to express my agreement; but Mr. Grote
appears inclined to withdraw, subsequently, what he has
here admitted. On the following page we read, "From
the etymology of the names, be it ever so clear, we cannot
safely assume the historical reality of a classification ac-
cording to professions. And this objection (which would be
weighty, even if the etymology had been clear) becomes irre-
sistible, when we add that even the etymology is not beyond
dispute; that the names themselves are written with a di-
versity which cannot be reconciled; and that the four pro-
fessions named by Strabo omit the goat-herds, and include
the priests; while those specified by Plutarch leave out the
latter, and include the former." Still, all these "irresist-
ible" arguments amount to a proof of no more than this,
that the ancient writers had no certain knowledge about
the tribes, and that all the names cannot be interpreted
with equal certainty. But this makes it none the less
certain that they had a meaning. For instance, the name
Argadeis may have meant field-labourers, or artisans; one
of these two meanings it certainly had, and one of them
must have been the reason why a tribe received the name
Argadeis. Which of the two it was may be left undecided,
if we have once for all made it a rule to confine ourselves,
in investigations of this kind, to what is supported by evi-
dence. I am far from blaming Mr. Grote for adhering to
this rule; but for this one reason I conceive that I am
justified in blaming him, because he is reluctant to admit
what is really quite evident, that the ancient tribes re-
ceived their designations according to the occupations of
their members, whatever these occupations may be thought
to have been.
It seems as if this reluctance was caused by the fear, that
to make such an admission would justify the inference of
a caste-system like that of Egypt, an inference which has,
in fact, been drawn from it by some writers. Mr. Grote
himself says on this point, "If we should even grant that
The Four Tribes.
9
such a division into castes might originally have prevailed,
it must have grown obsolete long before the time of Solon;
but there seem no sufficient grounds for believing that it
ever did prevail"." To this I, for my part, have nothing to
object; what I cannot approve of is, that Mr. Grote is not
content to abide even by what he adds on the same page,
and what I quoted above; that supposing the tribe-names
to have been originally chosen because of certain occupations,
this does not involve a complete correspondence between the
names and the reality, or that every member of the tribe had
really been engaged in the occupation after which his tribe
was named. There was absolutely no ground for with-
drawing this view. It is quite certain that the tribes might
be designated from certain occupations, if these were the
commonest or most important in the respective tribes, though
many members of the tribe might be occupied, not in these,
but in other vocations. We find just the same thing later,
in some Demes or districts of Attika. For instance, there
was a Deme "Kerameis," "The Potters," to which, among
others, Gylon, Demosthenes' maternal grandfather, belonged.
It will be believed without hesitation, on the authority of
Philochorus (quoted in Harpokration), that the name of this
Deme was taken from the trade carried on in it, but no one
will suppose that at any time the members of the Deme were
exclusively potters. Rather, the Deme was so called because
there was a particularly large number of potters in it, be-
cause the trade was carried on there to a greater extent than
elsewhere. Thus we are not to regard the Deme Ergadeis,
which an inscription has lately acquainted us with, as com-
posed exclusively of field-labourers, or artisans; but only
as one in which one or other of these classes was particu-
larly conspicuous. Just the same must have been the case
with the tribes. The tribe of the Hopletes must be regarded
as that in which the fully-armed warriors composed the most
important part of the population; the tribe of Ægikoreis as
that in which the goat-herds, and so the tribes of the Ge-
leontes and Argadeis as those in which the persons desig-
nated by those names in virtue of their employments, occu-
b Vol. iii. p. 263.
10 Schömann on the Constitutional History of Athens.
+
pied a similar position; there being in each case, besides
those indicated by the name, a more or less considerable
number of other members of the tribe.
(b.) Local as well as Family Unions.
C
The primitive bond of the Phyle was undoubtedly a real
or fictitious tie of kindred between its members, and there-
fore we may agree with Mr. Grote in designating the most
ancient Phylæ as puλai yevinaí (associations based on
φυλαὶ γενικαί
relationship). This is at once plain from the names of their
subdivisions, the Phratries and Gentes, which clearly express
a connection of relationship; and if we enquire into the
natural process of origin, it is obvious that the Gens came
first, the union of several Gentes or the Phratry second, and
the union of several Phratries or the Phyle third, in suc-
cession.
But here we must bear in mind that, although the political
order is erected on the foundation of the natural, still in
erecting it the natural order of things is more or less re-
duced to system, and a certain degree of symmetry is intro-
duced, even if it is not rigidly carried out. This result
cannot be attained without interferences, and artificial ex-
pedients of various kinds. Some of the ancients tell us
about an equal number of households, or families, viz. thirty
in every Gens, and the same number, viz. again thirty, of
Gentes in the Phratry; so that, as there were three Phratries
in each of the four tribes, the total number of the Phratries
would be equal to the months, and that of the Gentes to the
days in the year. All this I am inclined, in agreement with
Mr. Grote, to hold as a mere imagination, such as in this
particular way had never been realised in fact. Still, the
number of three Phratries in a tribe need not be doubted,
and some sort of symmetry in the subdivisions is at least
not improbable. Only it is certain that such an arrange-
ment could not be initiated till after the accomplishment of
the union, in a single collective state, of the earlier separate
d Ibid., p. 265.
c Vol. iii. p. 269,
The Four Tribes.
11
communities; which the legend ascribes to Theseus. But at
the time when this political order was instituted, there can
be no doubt that the Phyla and their divisions were asso-
ciations connected by place as well as by relationship. The
members of the same Gens, Phratry, and Tribe were also, in
primitive times, residents of the same localities, and each of
these divisions had its own district; so that the country was
divided into as many districts, large and small, as there
were Gentes, Phratries, and Tribes. In later times, we find
many Demes, or districts, called after Gentes; this is an
unmistakable indication that the Gens after which it was
called was resident in the district; not that a single Gens
possessed the whole territory, but that the name was given
to the district from the most conspicuous among several
Gentes e. What is true of the Gentes, is true also of course
of the Phratries, i.e. just as the families composing a single
Gens lived together in a single district, the Gentes composing
a single Phratry also lived together in a single district of
greater extent. That this view was not unknown to the
ancients is shewn by this, among other reasons, that some
one proposed as an explanation of the word "Phratry," that
they had a common well (¿péap). However bad this ex-
planation may be, it is quite clear that it could not have
been so much as suggested, unless the Phratries had been
known as associations united by place as well as blood.
About the tribes, I have already remarked that several of
the names which they were imagined to have borne before
the time of Ion were taken from portions of the country;
and therefore prove that the antiquaries who invented these
names, must necessarily have conceived the Phylæ as local,
each possessing a portion of the country.
Now, as long as such a relation existed-and, in sub-
stance, it must always have existed-the word "Phyle"
Buttmann, Phratries, Mythol., ii. p. 232, believes Budæus to be the author
of this explanation, which he does not himself absolutely reject. No doubt
it is proposed by Budæus in the Comm. 1. gr.; but that it is ancient, ap-
pears from Servius on Virg. Æn., vii. 286. The name ¿ßá, too (= ča, ola,
ová, ¿á), means properly, a separate district. See Hemsterhus. on Hesych.
in ovaí, Müller, Dor., b. ii. c. 5, 3, and Böckh, ii. p. 713, where "Geschlecht”
is written for "Phratrie" by an oversight [?].
12 Schömann on the Constitutional History of Athens.
might be used in two senses: it might mean the part of
the country in which the tribe resided, or it might mean
the total of the tribe members, of whom the majority were
no doubt resident in that part of the country, though indi-
viduals might have migrated and settled in another district.
This double meaning of the word must be borne in mind,
if we would understand and estimate correctly the notices of
the ancients about subdivisions of the Phyla other than
those already mentioned.
(c.) Relation of Ovn and тpíTTues to Phratries.
That is to say, we are told of eovn and тpíтTues, and even
that there were three of them in each tribe, so that their
number was the same as that of the Phratries; and this
equality in numbers has misled many into regarding the
actual subdivisions as identical, and into believing that
φρατρία, ἔθνος, τριττύς, are only different names for one and
the same thing. That this is a mistake is now generally
recognised. The name Ovos applies to the division into
the three classes of the Eupatrids, Geomori, and Demiurgi,
i.e. the nobility, the non-noble landowners, and the work-
ing-classes; and there is no doubt that each of these classes
was contained in every tribe, probably even in every Phra-
try, though not in equal numbers in every instance. About
their political importance we only know this much, that all
rights relating to political administration were in the hands
of the Eupatrids, or nobility; as it was exclusively from
among them that the members of the senate, the magis-
trates, and the priests, were taken. The two other classes
were excluded from these privileges, and there was in this
respect no difference between them; so that it may seem as
if, in political position, there were only two distinct classes,
the noble and the non-noble. It is true that many writers
have assumed, besides the noble and the non-noble, but free
classes, yet a third class, of field-labourers who were not
free, the origin of which they explained by a supposed con-
quest of the country by Ionians, who had partially or en-
tirely subdued the old Pelasgic population, and depressed
The Four Tribes.
13
them into a position like that of Helots or Penestæ. But,
in reality, there is no justification for this assumption; and
as Mr. Grote does not adopt it, there is no need for speaking
further of it here.
f
Of the Trittyes we are told, that each of them con-
tained four "Naukraries," each of which was under one
or more Presidents, "Naukrars," who are compared with
the later instituted "Demarchs," as the Naukraries are
with the Demes. They were therefore local divisions; and,
consequently, the Trittyes, or unions of four Naukraries
each, were so too. Now, though the grammarians were
wrong in identifying evŋ, or classes, with the Phratries,
were they perhaps right in regarding Trittyes and Phra-
tries as the same thing? If, as we saw above, the Phra-
tries, too, are divisions of the Phyle, united not merely by
kinship, but in locality as well, composed of fellow-inhabit-
ants of the same district, what was the use of yet another
division of the Phyle into the same number of districts
as there were Phratry districts already existing? What
Mr. Grote puts forward as the relation between the two
kinds of subdivision is not calculated to assist us to clear
views on the subject. He says, "These four tribes may be
looked at either as religious and social aggregates, in which
capacity each of them comprised three Phratries and ninety
Gentes; or as political aggregates, in which point of view
each included three Trittyes and twelve Naukraries." "Com-
paring these two distributions one with the other, we may
remark, that they are distinct in their nature, and proceed
in opposite directions." The Trittyes and Naukraries are
subdivisions of the tribe, framed with a purpose, and resting
upon the tribe as their higher unity; the forty-eight Nauk-
raries, as local circumscriptions, are a systematic subdivision
of the four tribes, and embrace the whole territory; while,
on the contrary, the Phratries and Gentes are aggregates
of natural origin, not united into tribes till a later time.
It cannot be denied that this is all correct; but it is not
adequate. It does not help us to understand how the
Trittyes and Naukraries, which are rightly designated as
f Vol. iii. pp. 264, 5.
14 Schömann on the Constitutional History of Athens.
local circumscriptions, can at the same time have been sub-
divisions of the Phylæ, which Mr. Grote has represented to
us only as family tribes, formed by the union of Gentes and
Phratries, which originate naturally, and therefore rest on
kinship only; so that the Phylæ are represented only as
parts of the people, not as parts of the country. His ac-
count is, therefore, open to the objection, that it leaves un-
noticed the double meaning of the Phylæ. But, as regards
the relation of the Trittyes to the Phratries, it is obviously
less probable that the two names mean the same thing, than
that they mean something different; and hence it may per-
haps be assumed, that at the time when the Trittyes and
Naukraries were organized the Phratries had already ceased
to be local districts too, though they had formerly been so,
just as much as the tribes. Also, it is easily conceivable
that the primitive connection between the family and the
residence of the members was destroyed sooner and more.
completely in the smaller divisions, or Phratries, than in
the larger division, or Phyla; and that therefore the for-
mer continued to exist as divisions of the people, and not
as districts, while the Phyla continued to be both the one
and the other. Therefore, when it was purposed to divide.
the Phylæ districts into smaller sections, it was impossible
to employ the Phratries for the purpose, and a completely
new division had to be undertaken. Moreover, this division
was certainly the work of a tolerably late age, not long
before Solon's legislation.
*
"Naukrars," or "ship-headmen" was the name given
to those who had to equip a ship of war and command
the crew, like the Trierarchs of later times; "Naukraria,”
or "people of a ship-headman," was the name thence given
to the districts to which the Naukrars, bound to provide
a ship, severally belonged. Athens can hardly have had
ships of war before the time of her beginning the war with
Megara for Salamis, when she came to need a naval force;
and these wars belong to the age of Solon. Mr. Grote s
agrees in thinking that the Naukraries are an institution of
later times, but he doubts the correctness of explaining the
h
8 P. 266.
h P. 264.
The Four Tribes.
15
name by the obligation to provide a ship; and prefers, with
Wachsmuth and others, to derive it from valew, "to dwell,"
and make it mean a "principal householder." How im-
probable this view is has been well pointed out by Böckh,
in a note to the second edition of the "Public Economy of
Athens," i. 708; and I am convinced that if Mr. Grote had
been acquainted with that note, he would have given up
his opinion.
§ 3. RELATIONS BETWEEN THE TOWNS OF ATTIKA
BEFORE SYNŒCISM.
It has been remarked above, that the organization of the
Phylæ, and their subdivisions, could not have been intro-
duced before the union of the whole people in a single
state, which union the legend attributes to Theseus. In
what sort of relation the small separate states stood to each
other before his time, cannot be more precisely ascertained,
except for what may be gathered from Thukydides' i account
in the second book; even the notices in Strabo and others
of twelve towns, which would have to be regarded as the
centres of as many smaller states, have no claim to pass
for certain historical tradition; perhaps they owe their
origin merely to the circumstance, that those twelve towns
were known as the former centres of the twelve Phratries.
A connection between the towns and the Phratries has been
thought of by Ignarra and Buttmann before me, and indeed
nothing can be more obvious; the objections which others
have brought against it are proved, on closer consideration,
to be wholly without weight. An inscription gives us the
name of a Phratry, 'Axviádat, which is, moreover, the
only one we know of; so as those twelve towns are none
of them called Achnia or Achniæ, it has been attempted
to infer that there could be no connection whatever between
them and the Phratries. This inference rests merely on
the assumption, that the Phratries must necessarily have
been named after the capital towns of their districts, or
the towns after the Phratries; an assumption, the ground-
i Thuk., ii. 15.
16 Schömann on the Constitutional History of Athens.
k
lessness of which is obvious at first sight, especially if we
recollect that the Phratries were of earlier origin than the
towns or villages, which gradually arose in their districts,
and one of which, the most important, or the most con-
veniently situated, became the capital of the Phratry. How-
ever, Mr. Grote has simply not touched upon this question,
and in general has not permitted himself to put forward
conjectures on the relations of that most primitive time.
And of this course I cannot but approve, still, I find in
his pages an idea put forward concerning Eleusis, and its re-
lation to Athens, which appears to me to rest on reasoning that
is overhasty and unfounded. From the Homeridic¹ hymn
to Demeter, which all through treats Eleusis as a separate
state, without the least mention of Athens, or of a relation
of the Athenians to the cult of the goddess,-Mr. Grote
thinks himself justified in inferring that at the time when
the hymn was composed, according to Voss about the thir-
tieth Olympiad, Eleusis was still autonomous and indepen-
dent of Athens. As if the poet must needs have touched
upon the conditions of his own time, and would not rather
confine himself to those of the primitive age in which his
story's scene is laid, and when Eleusis was of course in-
dependent of Athens. It would be equally justifiable to
assert, that at the time when the Iliad was composed, there
were as yet no Ionic or Æolic colonies on the coast of
Asia Minor, because the poem speaks of other inhabitants
all over that region; or that there were no Herakleid and
Doric states in Peloponnese, because the poet displays to us
there nothing but kingdoms of Neleidæ and Pelopidæ.
The second argument, drawn from Herodotus, is no better
founded. In Herodotus'm story, Solon tells Kræsus of
a certain Athenian named Tellus, who had fallen yevouévns
μάχης πρὸς τοῦς ἀστυγείτονας ἐν Ἐλευσῖνι, and it is clear
that the event took place not very long before Solon's time.
Now if we connect τοὺς ἀστυγείτονας ἐν Ἐλευσῖνι, then of
course the Athenians fought a battle with the Eleusinians,
and it may be inferred that the two towns were not yet
[i.e. originating with the Homeride.]
▲ iii. 279.
m i. 30.
Drako.
17
united in the same state. But if we connect yevoµévns
μάχης ἐν Ἐλευσῖνι, then the expression refers to a battle
in the vicinity of Eleusis, and the doTvyelтoves, with whom
it is fought, are not the Eleusinians, but without doubt the
Megarians, with whom in those days the Athenians had
various feuds, and to whose designation as ȧotvyeltoves
Mr. Grote certainly could not object. There would have
been far more reason for objection, in case Herodotus had
meant to indicate the Eleusinians, in the position of the
words τοὺς ἀστυγείτονας ἐν Ἐλευσῖνι, instead of which
we should then expect either τοὺς ἐν Ἐλευσῖνι ἀστυγείτονας,
or τοὺς ἀστυγ. τοὺς ἐν Ἐλευσῖνι. I may add, that Mr. Grote
seems to have been led into his mistake by Lobeck, Aglaoph.
p. 215, though he does not refer to him. But Lobeck him-
self amended his view later", in consequence of Müller's
remarks in the opposite sense.
§ 4. DRAKO.
All that can be said of the relations and conditions which,
about the end of the seventh century, aroused in the people
the desire for a code of laws fixed in writing, to regulate
the course of justice, which the Eupatrid authorities had
so far administered with no guide but tradition and their
own will, is clearly and cogently set forth in Mr. Grote's
work. Drako's laws, as Aristotle testifies, did not change
the existing constitution: for the institution of the college
of Ephetæ is not to be regarded as a constitutional change:
but they were conspicuous for their excessive harshness and
severity, ordaining the heaviest punishments even for tri-
fling offences. The censure, which on that account many
considerable authorities among the ancients passed upon
Drako, is well known. Of the moderns, some have under-
taken to defend him, and Mr. Grote is on their side. For
my own part, in cases like these, I am always inclined to
take the side of the defence rather than that of the attack,
and in this case I am ready to believe, that the sentences
of the aristocratic judges pronounced on men of the people
1
Add., p. 1361.
с
18 Schömann on the Constitutional History of Athens.
-
may often have been no less severe than Drako's laws.
But I can find no proof anywhere that Drako confined
himself to sanctioning tradition by laws, that he did not
exceed customary severity, and that the charges brought
against him only rest on a misunderstanding of the true
state of the case. Least of all can I concede the force of
proof to Mr. Grote's observations °,-" the few fragments of
the Drakonian tables which have reached us, far from ex-
hibiting indiscriminate cruelty, introduced for the first time
into the Athenian law, mitigating distinctions in respect
to homicide; founded on the variety of concomitant cir-
cumstances." The evidence alleged for this is, among other
places, Pausanias, ix. 36; he however says nothing but this,
that there were certain cases in which Drako's laws made
it allowable to kill a man, and required no penalty, as in
the case of an adulterer caught in the act. Just the same
account is given by Demosthenes, in Aristok., p. 637, and
Lysias de Cæde Eratosth., p. 31; and they are the further
evidence on which Mr. Grote relies.
Is it, therefore, maintained, that the severity of Drako's
penalty for adultery, in permitting the adulterer to be killed
by the offended person on the spot, is an argument against
the alleged harshness of the Drakonian laws? It seems to
me, on the contrary, that this is the expression of a high
degree of severity, and that a more lenient lawgiver would
not have thus given up the adulterer on the spot to the
wrath of the offended person; but would have reserved the
question of punishment for judicial determination. Or are
we to find a proof of more lenient intention in the fact that
Drako did not wish an unintentional blow, resulting in
death, in the course of a boxing-match or a battle, to be
regarded and punished as murder? Is it even conceivable.
that any legislator, however severe or cruel, could have made
absolutely no distinction between such homicide and pre-
meditated murder? According to Mr. Grote indeed, "we
may conjecture that this was something connected with that
spot P, legends, ceremonies, or religious feelings, which
compelled judges there sitting to condemn every man proved
• ii. 284, part 2, c. 10.
P The Areopagus.
S
Solon.
19
guilty of homicide, and forbade them to take account of
extenuating or justifying circumstances ."
But we search in vain for a proof of this conjecture. The
place in Plato's Laws, to which Mr. Grote refers in his note,
is not treating at all of murder and homicide, or of the
Areopagus, but only of robbery and theft; and says that no
one must be seduced by the poets, or narrators of myths, to
commit such offences, under the delusion that he is doing
nothing deserving punishment, because what he is doing
is what the gods themselves have done. We can only ima-
gine Mr. Grote's intention in making this reference, to have
been something of this kind: he wished to shew that the
myths were not without influence on men's views on what
was, and what was not, permissible: from that, he meant it
should be further inferred that a similar influence of the
myths might be assumed, even on the judicial determination
of what is punishable; and finally, that it is quite conceiv-
able that there were myths which caused the judges to con-
demn every murderer, or homicide, uniformly, and without
distinction. Mr. Grote does not set out the steps of this
reasoning; but if he had done so, whose assent would he
have gained for his conjecture?
r
§ 5. SOLON.
(a.) Was there Democratic sentiment in his time?
-
In passing to Solon and his legislation, Mr. Grote begins
by speaking of the three parties into which, at that time,
the people was divided,-Pedieis, Parali, and Diakrii. The
latter, as Plutarch says (Solon, c. 13), were the most demo-
cratic in sentiment. Against this Mr. Grote remarks, that
the expression is unsuitable to that age, in which it can
hardly be assumed that there were democratic pretensions
as such.
If this means democratic, in the proper sense of
1 ii. 286.
r
[Grote may have meant rather more, viz. that the allusion to the myths
in 941 B was connected with the severe penalties laid down in 941 D and
942 A. But on careful reading, it appears that there is no connection; the
severity of the rule follows from the consideration ἔρωτι μὲν ταὐτῷ, κ.τ.λ., not
from the sentence about the myths, which is a mere preliminary warning.
Schömann's objection is therefore, on the whole, just.]
c 2
20
Schömann on the Constitutional History of Athens.
the word, then we must ask what the proper sense of this
very ambiguous word may be. It is well-enough known
that a sharply-defined and universally-accepted conception
of democracy can hardly be established. But if democratic
pretensions, as such, mean pretensions of the kind which
e.g. the Periklean constitution recognised and satisfied, we
must admit, of course, that so great an extension of the
popular power, without distinction of rank or property, and
such restriction of all authorities in favour of the sovereign
people, could certainly not have been thought of at that
early time. Still, Plutarch might call the Diakrii demo-
cratic in feeling, even though it was but a comparatively
small measure of popular freedom and rights to which they
aspired; it is only by comparison with the Pedieis, who
wished to preserve the ancient oligarchy intact, and the
Parali, who were content with more moderate concessions
to the people, that he calls the Diakrii, who went further,
the most democratic. The subject is unimportant; but
I was desirous not to pass over it in silence, as Mr.
Grote's remark may prepare the reader for the tendency
of the account that follows, which is directed to allowing
as little as possible that is democratic to the Solonian con-
stitution, so as to leave more room for democratic innova-
tions, to be effected by the later legislators.
(b.) Grote's mis-reading of Plutarch.
S
It is an extraordinary misunderstanding by which Mr.
Grote represents Solon as elected archon with dictatorial
power, "along with Philombrotus $."
.' Then was Philom-
brotus given to Solon as a colleague, either to share the
dictatorial power with him, and assist in framing the neces-
sary ordinances, or to relieve him of the ordinary duties of
the archonship? Plutarch says, c. 14, ypéen 8' äpxwv μeтà
Φιλόμβροτον ὁμοῦ καὶ διαλλακτὴς καὶ νομοθέτης. It is
patent that Mr. Grote believed he read μετὰ Φιλομβρότου,
and connected duoû with those words, instead of taking
together, as he ought, ἄρχων ὁμοῦ καὶ διαλλακτὴς καὶ
• P. 303.
Solon.
21
voμоléтns. The mistake would not have been worth men-
tioning, had it not been committed by one who is so profound
as an enquirer, and so acute as a critic. The mode of dating
by the next preceding archon, as Plutarch dates here, is
familiar and frequent. Compare, among others, the in-
stances in Böckh, Corp. Inscr., vol. i. p. 256.
(c.) Seisachtheia and Amnesty.
Solon fulfilled his task as peacemaker and lawgiver in two
ways: first, by devising measures to remedy the most urgent
evils of the moment; secondly, by introducing a constitu-
tion which was to secure to all classes of the people their
proper rights for the future. At the head of the remedial
measures stood the Seisachtheia, though the ancients them-
selves were not clear as to its precise nature. Some of them,
indeed the majority, explained it as a complete remission of
debts; others thought Solon merely relieved the debtors,
in part by a diminution of the rate of interest, in part by
the introduction of a money-standard about 27 per cent.
lower; so that a debtor who had borrowed, for instance,
100 drachmæ of heavy money, had only to pay back
100 drachmæ of light money, and thus gained 27 drachmæ.
Mr. Grote adopts a middle course. He assumes a total
remission of the debts, but limits it to the case of debts
for which the debtor's person or his land were the security.
This restriction, he thinks, is required by Solon's own ex-
pressions, which all through speak only of mortgage pillars
which he removed, and persons fallen into servitude whom
he set free. To this he adds, that if Solon had enacted
a universal remission of debts, he would have had no reason
for lowering the standard of the currency. For this depre-
ciation can only, he thinks, be explained by the case of the
wealthier class, who, on the one hand, were creditors of
the poor, and on the other hand, had debts of their own.
The object would then be to compensate them, to a certain
extent, for the loss they suffered in consequence of the
remission granted to the poor debtors, by means of dimin-
ishing their own debts in the proportion in which the
tw
22 Schömann on the Constitutional History of Athens.
currency was debased. This is very acute and persuasive
argument; but it does not seem to me convincing. The
practice of mortgaging landed property must have been
followed, not only by poor debtors, but by more wealthy
ones as well. It would be analogous to what we find later
in Attika, and to our own practice, by which even well-
to-do landowners, when in need of a loan, have it entered
in the mortgage-register, as secured upon their land. In
Attika, the erection of a pillar on the piece of land was just
the same thing as the entry in the mortgage-register is with
us. Mr. Grote would limit the remission to debts that were
secured; but we may be sure that there were few or none
that were not secured. Besides, that it was not only the
poor who benefited by the remission, seems to be proved by
the story about Solon's friends, Konon, Kleinias, and Hippo-
nikus. It is said that they obtained early information of
Solon's intention to remit debts, and so borrowed large
sums of money, and bought estates, which they retained
after the ordinance was published, without having to repay
the borrowed money.
Plutarch (Solon, c. 15) tells this story without naming
his authority; but this would hardly justify us in setting
it down as a fiction. Mr. Grote himself lays no stress on
Dionysius' mention of the remission of debts as being "for
the poor." Supposing it to be universal, still it was es-
pecially the poor who benefited by it. Lastly, the debase-
ment of the coinage might possibly be enacted for the
purpose which Mr. Grote assumes; but it might also have
other reasons, which we do not know.
The grammarians say further about the Seisachtheia, that
it remitted the debts not only of private, but of public
debtors; that is, that all fines and other pecuniary obli-
gations to the state were remitted. The source of this
statement is Philochorus, and there is no reason to doubt
its correctness. But it is quite clear that this part of the
measure at least, must have been as helpful to the rich
as to the poor, or even more so. And not only were fines
remitted, but also the punishment of Atimia; only except-
ing the cases of those who were banished on account of
Solon.
23
murder and homicide, or of attempting tyranny, according
to the words of Solon's law, quoted in Plutarch, c. 19. This
amnesty is not to be regarded as part of the Seisachtheia;
it even seems to have been enacted later than it, for it was
in the eighth law of the thirteenth table; while according
to Plutarch's account, the Seisachtheia must have preceded
the legislation. But it was in the same spirit; the remis-
sion of private debts, fines, and public debts, was followed
by this remission of Atimia.
Mr. Grote thinks t that so comprehensive an amnesty
justifies the supposition that the judicial proceedings of the
time immediately previous, must have been intolerably se-
vere, as indeed would be in accordance with the Drakonian
laws then in force. The supposition is not in itself objec-
tionable, but I must express a doubt whether it is justified
by the amnesty in particular. In times like those, full of
internal discord and bitter party conflicts, in which each
party was successful in its turn, exile and similar punish-
ments must have been common enough, even if the laws
and the course of justice were not excessively severe.
(d) Timocratic Classification.
Among Solon's constitutional laws, our attention is first
claimed by the Timocratic classification of the people. Mr.
Grote agrees on the whole, as might be taken for granted,
with our countryman Böckh's masterly treatment of this
subject; only in respect of the third class, the Zengites,
he feels compelled to deviate from Böckh, and to follow
the statements of the ancients. What they say is, that the
minimum income of this class was 200 medimni (200
drachmæ); while that of the Knights, or the second class,
amounted to 300; and that of the first class, the Pentakosio-
medimni, to 500. Böckh, Staatsh, vol. i. p. 647, thinks
it probable that the statement of the Zengites' income is
incorrect; not, as he says, because it would be incredible
that all who possessed less than 200 medimni, should have
belonged to the lowest class (that of Thetes); but rather for
t P. 305, part ii. c. 11.
24
Schömann on the Constitutional History of Athens.
these two reasons, first, that the difference between the
census of the knights (300 medimni), and that of the Zeu-
gites (200 medimni), would be too small compared with
that between the knights and the Pentakosiomedimni; and
secondly, and more especially, because a law preserved in
Demosthenes leads to another estimate of the amount. This
law provides what compensation any member of the first
three classes had to pay to a female relative belonging to
the last class, if he refused to marry her. A Pentakosio-
medimnus had to give her 500 drachmæ, a Knight 300;
each, therefore, the equivalent of his income in medimni, or
of his land's annual produce as valued; but the Zeugite only
gives 150 drachmæ, and from this the conclusion seems to
result, that a Zeugite's property need only produce an in-
come of 150 medimni or drachmæ.
Böckh then shews how the property is calculated at
twelve times the yearly produce, so that the minimum
property of the Pentakosiomedimni was 12 x 500 = 6,000
drachmæ, or 1 talent; that of the Knights, 12 × 300=3,600
drachmæ; that of the Zeugites, 12 x 150 1,800 drachmæ.
He further shews, as the result of a right interpretation
of Pollux, viii. 130, how in the assessment of property-tax
(or income-tax if that name is preferred), the Pentakosio-
medimni had their whole property taken account of as
tíµŋµa, or taxable capital, and the other two classes only
a certain proportion of it. This was for the Knights %, or
3,000 drachmæ; for the Zeugites &, or 1,000 drachmæ. The
class of Thetes was free from this kind of taxation.
.
In refutation of this account of Böckh's, which seems
to me as convincing as it is clear, Mr. Grote makes two
objections; one derived from the nature of the facts, the
other from the testimony of the ancients. If we adhere
to the statement of the ancients, he says ", the taxable
capital is in all three classes a definite multiple of the
income; for the Pentakosiomedimni twelve times, for the
Knights ten times, for the Zeugites five times, their income,
which is not the case on Böckh's hypothesis; and this he
thinks an adequate ground for preferring the other account.
u P. 320, part ii. c. 11.
Solon.
25
To me it appears to be absolutely without importance. It
is surely quite clear that it is a perfectly easy and simple
process to estimate the landed property uniformly in all
classes at twelve times the income; but in assessing the
tax, to take account of only of this landed property in
the case of the Knights, and in that of the Zeugites.
Hence Mr. Grote is quite wrong in regarding the process
as so complicated, and the fractions consisting of sixths
and ninths as so improbable, as to prevent the acceptance
of Böckh's conclusion from the analogy of the law of com-
pensation-payments. Again, Mr. Grote insists on the coin-
cidence of testimonies as evidence against Böckh. In this,
he refers to the various places of the ancients, which unani-
mously state the census of the Zeugites at two hundred
medimni. But this unanimity can only be held to con-
stitute a coincidence of testimonies, on the assumption that
what the passages contain are really distinct and inde-
pendent testimonies. But this may not be so. Besides
Plutarch, Solon, c. 18, we have to do only with Scholiasts
and Grammarians, who undoubtedly drew from a common
source, some ancient rhetorical Lexicon, of which there were
several. The authority used by the old Lexicon, was no
doubt one of the writers of Atthides, Philochorus, or An-
drotion, and Plutarch may have got his statement actually
from the same source. The coincidence of authorities is
therefore very doubtful, and cannot be regarded as a valid
argument for the correctness of the statement which Grote
follows.
5
6
X
What Mr. Grote goes on to say about the classification
is not quite clear to me. "Though the scale is stated
as if nothing but landed property were measured by it,
yet we may rather presume that property of other kinds
was intended to be included, since it served as the basis
of every man's liability to taxation." Meissner translates
"since," by "weil" (= because). If this translation is
correct, the argument appears to me to be fallacious, for
it has not by any means been made clear whether, accord-
× Vol. iii. p. 160, [in the edition of 1849; omitted on p. 321, in vol. ii.
of the edition of 1862].
26
Schömann on the Constitutional History of Athens.
ing to Solon's constitution, the class divisions were the only
basis of liability to taxation. It is at least possible that
even if in it nothing but landed property was considered,
and therefore all who had little or no land belonged to
the Thetic class, yet there might be some taxes levied in
which even such Thetes were introduced into the assess-
ment according to the amount of their property of other
kinds. I should therefore like to conjecture that “since
here means not the reason, but the time; "seitdem," (from
the time when). Then Mr. Grote would to all intents
and purposes, agree with Böckh; for he, too, says that it
was only at first that the Solonian classification took account
of productive land only. Later, he thinks, when (e.g. in the
Peloponnesian war) property-taxes became frequent, it is im-
possible that they should have been borne exclusively by
the land-owners, and hence it must be assumed that the
whole property, moveable and immoveable, was then counted
together, and that it was on this basis that the place of
individuals was fixed as in one class or another. Solon no
doubt, like all other early politicians, regarded landed pro-
perty as the most solid foundation for the permanence of
a good and brave race of citizens, and therefore desired that
individuals should invest their property principally in that
form. Hence he degraded even a wealthy man, if his pos-
sessions consisted only in personal property (åpavǹs ovoía)
and not in land, into the lowest class of citizens, ranking
him with the Thetes. But as regards taxation, it was
possible if that took place, to impose on such a man, in
spite of his position in the classes, a burden proportioned
to his property. And we may be sure that in Solon's time,
there were very few well-to-do citizens who were not land-
owners. After the fall of the thirty, when Phormisius
proposed the law that only landowners should retain full
citizenship, there were about 5,000 persons, a quarter of
the citizen body, who would have been excluded if the law
had passed.
Therefore even then, after Athens had for long been
chiefly a maritime and commercial state, and while Peiræus
was inhabited by a trading and manufacturing population
در
Solon.
27
hardly less numerous than the population of the capital,
still three-quarters of the citizens were landowners; how
many more must have been so in Solon's time. But, above
all, we must notice the possibility that Solon's classification
may not have referred at all to taxation, but solely to the
qualification for office, and to the obligation of military
service. According to Thukydides, the first property-tax
(eiopopá) was raised about Ol. 88. 1; not merely the first
in the Peloponnesian war, but the first that was raised at
all, as Böckh rightly interprets the statement of the his-
torian. Whether any similar taxation existed at an earlier
time, and if it did, on what principles it was arranged,
we do not know. So we may regard the estimate of the
тiμýμaтa or taxable capital, and the rules of its ratio to
the landed property in each class, as an enactment which
was not framed by the author of the class division, and
was not devised till a later time.
(e.) Principles on which distinction is to be made between
Solonian and later institutions.
On the subject of the privileges granted by the Solonian
constitution to the several classes in respect of the offices
of government and the Council of Four Hundred, the state-
ments of the authorities are familiar and distinct. We
know that the fourth class, doubtless the most numerous,
was excluded from those privileges, but that its members
were on an equality with those of the three upper classes
in the right of voting in the general assemblies of the
people, and in that of acting as sworn judges in the courts
of law. But we are unfortunately without detailed and
reliable notices of the functions of the popular assembly,
and the position of the jury-courts. We are ignorant how
often the popular assembly met, what questions it deliberated
upon and determined, and whether there was any means
of amending or annulling its decrees; we are not instructed
as to the organization of the jury-courts, or Heliæa, and
y iii. 19.
28 Schömann on the Constitutional History of Athens.
their relation to the magistrates who administered justice,
or to any other judges there might be. But it is clear that
we shall conceive the functions of the assembly, and of
the Heliæa, to have been more or less extensive, according
as we are inclined to ascribe a more or a less democratic
character to Solon's constitution.
Mr. Grote, admitting as he does nothing democratic in
the strict sense to belong to Solon's age, conceives the func-
tions in question as somewhat less important, than we on
our side, who regard some democratic elements even at that
time as a little less incredible; and in doing so, are, as is
well known, following the example of the ancients them-
selves. It is true that the assertions of the ancients on
this point are to be employed with great caution, and this
is especially the case with the orators, who furnish most
of the allusions to Solonian laws. They had no inducement
to accurate distinction, and it was quite customary with
them to designate all the more ancient laws by Solon's
name. For he was the most famous legislator in the history
of the state, and had at least laid the foundation of the
whole system of laws that existed in later times, however
great may have been the modifications which it subse-
quently underwent in the way of addition or removal.
Besides, it is historically certain that the whole mass of
laws underwent a thorough revision, and a fresh redaction,
both a little before the end of the Peloponnesian war, and
after the fall of the thirty tyrants.
Now it is plain that the quotations of the orators were
taken, with a few solitary exceptions, from this revised and
amended collection of laws; and in such a case it must often
have been difficult, and indeed impossible, for any one but
learned enquirers, to distinguish with certainty between
what was really Solonian, and what was later. This ob-
servation forces itself so naturally upon every one, and the
need of caution in utilizing such references in the orators
to Solonian laws is so obvious, that it can scarcely have been
overlooked by any one since the earliest application of
historical criticism to Greek history.
For all that, Mr. Grote complains, it has not always been
Solon.
29
duly borne in mind by the moderns, and criticism has not
been applied as it ought to have been. "Even Dr. Thirl-
wall," he says, "has not entirely abstained from the prac-
tice, common with many able expositors of Grecian affairs,
of connecting the name of Solon with the whole political
and judicial state of Athens, as it stood between the age
of Perikles and that of Demosthenes "." Then he instances
as institutions thus wrongly referred to Solon, the Council
of Five Hundred, the numerous dikasts or jurors taken
from among the people by lot, the commission of Nomothetæ,
chosen annually with a view to revision of the laws, and
the yрapn Taрavóμwv, that is, the form of prosecution be-
fore a court in a case of legislative proposals which were
thought unconstitutional, or injurious to the state. As for
the first of these examples, I must confess that I know of
no one who has really taken the Senate of Five Hundred,
with its division into ten sections, and the Prytanic periods
of thirty-five or thirty-six days, for a Solonian institution;
if any one really did so, he would deserve no attention.
It is a different question whether the Solonian Council of
Four Hundred did not also have its Prytaneis, though of
course in a different number, and a certain sequence of
Prytanic periods.
Mr. Grote, in asserting that Prytaneis and Prytanies, and
not merely a later form of them, were unknown to Solo-
nian Athens, is, in any case, asserting more than can be
proved. So, too, as regards the great number of 6,000
Heliasts, 600 from each of the ten Phylæ, and their division
into ten Dikasteries, I had heard of no one who did not
recognise it as an institution dating from a time after
Solon; still, of course, it cannot be made out how nearly,
or how distantly, it was allied to the Solonian arrangement.
The same is true of the Nomothetæ, in the form in which
we know them from Demosthenes. And for the ypapǹ
πаρavóμшv, whether it is a Solonian or a later institution,
we shall probably remain undecided about it, as about many
a
z Vol. ii. p. 323.
a P. 324.
b Dr. Thirlwall, indeed, as I now see, speaks of 6,000 Heliasts, even in his
account of Solon; but this is an oversight, which might easily be excused.
30 Schömann on the Constitutional History of Athens.
other things, until a criterion is established which will dis-
tinguish with precision between what is Solonian and what
is not. If any one were to hope that Mr. Grote had pro-
posed such a criterion, he would be disappointed. We are,
indeed, told that the Heliastic oath, which Demosthenes
designates as Solonian, must necessarily be accounted later,
because the Council of Five Hundred is mentioned in it;
and this is a criterion which no one can doubt, but which is
of very little service to us. All we learn from it is, that
the oath in that form, in which it occurs in Demosthenes,
could not have been prescribed by Solon; (which, moreover,
would follow from the language alone, without the mention
of the Five Hundred ;) but this does not explain how much
of the actual contents of the oath may belong to Solon's
regulations, and how much to a later redaction.
Mr. Grote says, "Many of those institutions which Dr.
Thirlwall mentions in conjunction with the name of Solon,
are among the last refinements and elaborations of the de-
mocratical mind of Athens,-gradually prepared, doubtless,
during the interval between Kleisthenes and Perikles, but
not brought into full operation until the period of the lat-
ter; for it is hardly possible to conceive these numerous
Dikasteries and assemblies in regular, frequent, and long-
standing operation, without an assured payment to the
Dikasts who composed them. Now such payment first
began to be made about the time of Perikles." "It would
be a marvel, such as nothing short of strong direct evidence
would justify us in believing, that in an age when even
partial democracy was as yet untried, Solon should conceive
the idea of such institutions; it would be a marvel still
greater, that the half-emancipated Thetes and small pro-
prietors, for whom he legislated,-yet trembling under the
rod of the Eupatrid archons, and utterly inexperienced in
collective business, should have been found suddenly com-
petent to fulfil these ascendant functions, such as the citizens
of conquering Athens in the days of Perikles-full of the
sentiment of force, and actively identifying themselves with
the dignity of their community-became gradually com-
• P. 325.
Solon.
31
petent, and not more than competent, to exercise with
effect."
Of course, these observations are quite true. But how
far they can furnish us a sure clue for ascertaining what
it is possible that Solon may have enacted, and what it
is not, will require more accurate consideration. Solon,
Mr. Grote often insists, found no Democracy in any part of
Greece; down to his time, after the abolition of monarchy,
there had been nothing anywhere but Oligarchy (that is,
the rule of a privileged class, strictly exclusive as against
outsiders) or the government, supported by force, of the
persons known as tyrants. Now it is true that the scanty
historical data which we find in the writings of ancients for
the time immediately before Solon, inform us of nothing but
this; and so it cannot be proved that there was anything
different in other places. Achaia is the only country of
which we heard that in it Democracy, not Oligarchy, fol-
lowed directly on the fall of the monarchy. This was,
beyond a doubt, a very moderate Democracy, one in which
participation in political power was not granted indiscri-
minately to every individual, but only in a gradation regu-
lated in proportion to property: this is what was more
accurately called a Timocracy, and what Solon actually in-
troduced at Athens. The Achæan constitution was famous,
and was afterwards taken as a model by the states of Magna
Græcia; but, unfortunately, we do not know when the fall
of the monarchy took place in Achaia; and if any one an-
nounced his belief that it might not have taken place till
after Solon's time, we could no more refute him, than on the
other side any one could be refuted who chose to conceive
the event as earlier, as Dr. Thirlwall does, for instance.
K
Now it is not on this point only, but on all earlier con-
ditions and constitutional changes in almost all Greek states,
that our information is slight and defective. Hence I may
be permitted to suggest, at least as a possibility, that there
may have been Democracies here and there even before
Solon's legislation, of course moderate and limited, but still
conceding to the mass of the citizens a proportionally gradu-
a Polyb., ii. 41,5; Strabo, viii. 384.
32 Schömann on the Constitutional History of Athens.
ated share in the essential rights of citizenship. If so, the
doctrine, that down to that time nothing was anywhere
known but Oligarchy and Tyranny, ought not to have been
alleged as one established by facts, but only as a conjecture,
however probable; so that the opposite conjecture is not to
be absolutely rejected by comparison with it, as wholly un-
allowable. But I will even lay no stress on this conjecture,
because there is no proof that goes to establish it. If there
was really no Democratic constitution, and no reasonable
distribution of popular rights anywhere in Greece, still there
were Democratic movements for a considerable time before
Solon; that is to say, there was ill-feeling and discontent
among the masses of the unprivileged people at the pri-
vileged position of a single class; and there were party
leaders who utilised this ill-feeling and discontent in gain-
ing the help of the masses to overthrow the rule of the pri-
vileged few, as was done by Orthagoras at Sikyon, Kypselus
at Korinth, and Theagenes at Megara. It is true that the
majority of the discontented aimed at no more than this, and
were satisfied with freedom from the oppression of the earlier
rule, without desiring a share in the government for them-
selves; this was what made it possible for those party-
leaders to appropriate the sovereignty after the fall of the
oligarchs; and the mass of the people was the more easily
pleased with the change, the more they saw the oligarchs
kept under, and themselves secured against them.
But the mass is not the whole people. There cannot but
have been many whose wishes and ideas went further, and
who chafed under the tyranny as much as they had chafed
under the oligarchy; while they pictured to themselves
a state of things as possible and desirable, in which they,
and those like them, should enjoy the freedom and justice
that were their due. And it would certainly happen that
the measure which constituted what was due, would appear
different to different people; and there cannot have been
wanting those who demanded equal freedom and equal pri-
vileges for all, though they might be far from clear as to
the possibility of satisfying such demands, or their capacity
of using what was demanded, if realised, rightly, i.e. for
-
Solon.
33
the good of the community. Such phenomena as these
had, without doubt, presented themselves to the observation
of Solon, the largest mind of his own age, as Mr. Grote
rightly calls him, in more than one of the Greek states.
They presented themselves in Athens as well, though there
as yet no tyranny had arisen, for the Oligarchy had suc-
ceeded in defending itself against an attempt in that direc-
tion. But the discontent and disaffection of the people
were as great here as anywhere else; and they had, to
guide them, the experience of tyranny which other states
had endured. Part of the people, no doubt, were naturally
inclined to purchase the fall of the Oligarchy even at this
cost; but on the other hand, there were just as many who
did not care to exchange one rule for another, and who
desired freedom. Of these the unwise would wish for uni-
versal equality, the wise for only such freedom as the
people was capable of using, that is, gradations of political
right. This is how Plutarch describes to us the feeling
of the people in Solon's time, and his description carries
with it the proof of its truth. Solon belonged neither to
those who wished for the continuance of the Oligarchy, nor
to those who thought equality without distinctions either
possible or desirable; he was of the party of moderates,
but had maturely reflected on the measure in which freedom
should be bestowed, and on the due and appropriate gra-
dation of rights and privileges as well as of obligations,
taking account of property and civic virtue. It is impos-
sible to determine how much, in these respects, he drew
from his own reflection, and how much from experience and
precedent; but this much is clear, that he placed confidence
in the people who had confided constituent powers to him;
and that he did not consider the lower classes, for all the
oppression they had lived under, unworthy or incompetent
to assume a share in departments of state which were far
from unimportant. Such functions he calls by the name,
not of Democracy (a word which perhaps had not come
into existence), but dýμov кρáros, which really expresses
e Vol. vi. 39, part ii. 67.
D
i.
34 Schömann on the Constitutional History of Athens.
just the same thing.
κράτος, ὅσσον ἐπαρκεῖ.
5
He says, Δήμῳ μὲν γὰρ ἔδωκα τόσον
(f) List of Solon's Constitutional enactments.
Now if we ask for the details of Solon's enactments af-
fecting the constitution, we find some which are beyond
a doubt, but some also whose real nature and significance
admit of different views. It is certain that Solon made
the offices of government, which had hitherto been con-
fined to the Eupatridæ, accessible to all citizens of the three
first property-classes, without distinction of rank. But he
retained some of the more important, especially that of
Archon, (to which we may with confidence add those of
Prytaneis of the Naukrars, in agreement with Mr. Grote,)
for Pentakosiomedimni exclusively. Further, even without
express evidence, we may confidently assume with Mr. Grote,
that the liturgic obligations were imposed on the rich only,
though we know no details of their regulation. They con-
sist in the duty of equipping ships, which fell upon the
Naukrars, and in anything there might be at that time in
the way of Choregia, Gymnasiarchy, or Hestiasis. Then it
is certain that military service as horsemen, or hoplites, was
the duty of the three upper classes only, while the Thetes
served merely as light-armed.
Again, Solon remodelled the Areopagus. He did so by
forming it of ex-archons, whose office had been irreproach-
ably discharged, and entrusting to it besides the jurisdic-
tion in murder cases, and over incendiary and similar
crimes, a general supervision of the execution of the laws,
and of public discipline. It is a fact, too, that he instituted
the annual council of four hundred persons. To this he
committed, besides certain branches of administration, the
preliminary discussion of all matters to be brought before
the public assembly; so that no proposal could be brought
before the people, without a decree of the council, (Pro-
buleuma).
+
Lastly, we know that Solon instituted general popular
assemblies, in which all citizens had equal votes, without
Solon.
35
any differences based on property; and that he also gave
the power of acting as judges to citizens of all classes, with-
out distinction. But there is a difference of opinion in
regard to the province of the popular assembly, and the
extent and nature of the judicial functions which were
assigned to the people. Mr. Grote would have both con-
fined within the narrowest possible limits; it is my opinion,
on the other hand, that he has carried this restriction further
than was necessary, and further than is reconcilable with
sound criticism. Before entering upon the details, I will
begin by noticing two passages in which Mr. Grote finds
confirmation for his view.
(g.) Passages examined (on Powers of Assembly, and Judicial
function of People).
The first of these places is Herodotus, v. 69. It is here
said of Kleisthenes; ὡς γὰρ δὴ τὸν δῆμον, πρότερον ἀπωσ-
μένον πάντων, τότε πρὸς τὴν ἑαυτοῦ μοίρην προσεθήκατο, κ.τ.λ.
From this Mr. Grote infers, that if Kleisthenes found the
people excluded from everything, Solon could hardly have
established such democratic institutions, as e.g. permanent
and numerous assemblies of jurors for judicial business,
and the revision of laws.
I shall return to the subject of the assemblies of judges;
for the present, two remarks are sufficient. First, the read-
ing in the place of Herodotus, which I have given above
as Mr. Grote gives it, is by no means certain. It only rests
on a conjecture of Wesseling's; the MSS., as far as I can
see from Schweighaüser's edition, the only one I have
at hand just now, read ἀπωσμένον τότε πάντα, or τότε
πάντων.
Távтwv. Schweighaüser's text gives the former; and the
passage is translated "plebem omnem Atheniensium, prius
a se alienatum ('spretum' would be better) suas ad partes
traduxit." It is plain that Távтwv, the other reading, is
not right, with the words arranged as they are now; either
πρότερον must be struck out before ἀπωσμένον, so that
ἀπωσμένον τότε πάντων may go together, or τότε must be
put after πάντων, so as to be taken with προσεθήκατο.
D 2
36 Schömann on the Constitutional History of Athens.
This is what Wesseling has done, and I do not blame
Mr. Grote for having followed him.
But then, what does the place prove? Certainly not that
the people were excluded from everything by Solon's laws,
rather, that they had been excluded from everything in spite
of Solon's laws; that the kрáтos, which Solon prides himself
on having given the people, had been denied them. Was
it impossible for this to have happened at that time? As
long as the influence of the nobility was strong in the old
accustomed unions of Gentes, Phratries, and Tribes, it could
not but happen that the offices of government, though
legally open to non-noble persons if wealthy, would fall,
in fact, exclusively or principally to nobles. Consequently,
the popular rights which Solon had established, though
remaining on paper (or rather on wood), came to little
practical application. This was why it was Kleisthenes'
first measure to deprive those unions of Gentes, Phratries,
and Phyle of their political significance, and to introduce
an entirely new division, so as to put an end to the exces-
sive influence of the nobility.
The other place is Aristotle's Politics, ii. 9. 4. The ninth
chapter of the second book of the Politics is pronounced
spurious by competent judges; that, however, is indifferent
to the present question. In any case it is ancient, and
I have nothing to say against conceding to it all the au-
thority which the name of Aristotle can claim. This pas-
sage says, that Solon gave the people no greater power
than was unavoidably necessary, i.e. the power to choose
their magistrates, and to call them to account; for, it
adds, if the people has not thus much power, it is either
the slave or the enemy of its rulers. Now let us assume
that this passage involves, as Mr. Grote thinks, the assertion
that Solon allowed to the people, i.e. the assembly, no fur-
ther powers than that of electing its rulers, and of sitting in
judgment on their conduct in office. This is to say, that
the popular assembly had no competence in any department
of government, excepting only the elections, and the Eu-
thyne of the officials. So, then, there would be no one but
the magistrates or the senatorial colleges, whether the Four
Solon.
37
Hundred, or the Areopagus, who would have to decide on
peace and war, or any other public questions, or legislative
acts; on all such points, the people could not even claim
to have the question put to them.
All this is, to begin with, very unlikely in itself, and
then it is certainly more than the writer of the chapter in
question meant to assert. It seems to me that Mr. Grote
does not distinguish rightly between what is alleged as
the author's own opinion, and what is quoted as that of
others. He regards as belonging to this latter portion the
words (Sect. 2): ἔοικε δὲ Σόλων ἐκεῖνα μὲν ὑπάρχοντα πρό-
τερον οὐ καταλῦσαι, τήν τε βουλὴν (the Areopagus) καὶ τὴν
τῶν ἀρχῶν αἵρεσιν, τὸν δὲ δῆμον καταστῆσαι, τὰ δικαστηρία
ποιήσας ἐκ πάντων. But what these words express is ob-
viously a remark of the writer himself. He is correcting
the opinion held by some, which he has just quoted, that
the Areopagus, and the election of magistrates, as well as
the Dikasteries, were new institutions originating with Solon;
which he does by indicating that these two institutions were
pre-Solonian, and merely retained by Solon, while the
introduction of the Dikasteries belonged to his changes.
These three institutions, he says, were regarded by many
as the principal points of Solon's Constitution, and as esta-
blishing his claim to be called a good (σπovdaîos) lawgiver,
as having rightly tempered his Constitution by the mixture
of oligarchic, aristocratic, and democratic elements. The
Areopagus they called oligarchic; the election of magis-
trates, aristocratic; the Dikasteries, democratic. Others, how-
ever, he continues, censured the institution of the Dikas-
teries, because they were allowed excessive powers, and at
the same time the judges were taken by lot. They thought
that it was the over-great power of the popular courts that
caused the Democracy to become so extreme, as at a later
period it became. But, the writer replies to these disap-
proving critics in their turn, this appears to have resulted,
not in accordance with Solon's purpose, but as a consequence
of the events which time brought with it. After the Persian
war, the common people became conscious of their import-
ance (ὁ δῆμος ἐφρονηματίσθη), and worthless demagogues
38 Schömann on the Constitutional History of Athens.
broke down the resistance of the reasonable politicians (Tv
ẻπleikŵv); this is evidently in allusion to the later extended
activity of the popular courts, and also, no doubt, to the
introduction of the Dikastic pay. At this point there follow
the words first quoted, to which Mr. Grote appeals in favour
of his view of the narrow limit of the functions conceded
by Solon to the people. But, in their actual context, these
words are not meant to pass for a precise and complete
statement of the rights granted to the people; they only
insist on the two most important rights, which could not
possibly be denied to it. The people was itself excluded
from the offices of Government, which could only be held
by the nobler and wealthier class, which was not included
in the Snμos; so if the people had not even the right of
electing the magistrates, and sitting in judgment on their
conduct, it would evidently have been either the slave or
the enemy of the Government. So these two rights were
the most essential, and such as Solon simply could not avoid
giving to the people; but that he gave them only these and
no more, is in no way implied by the passage in question.
(h.) Helica and Popular Assembly not the same.
Still, Mr. Grote seems really to be of opinion that Solon's
Constitution did concede to the general assembly of the
people no more than those two rights. He calls the popular
assembly also "Heliæa;" for he says in a note, "I ima-
gine the term 'Hλlata, in the time of Solon, to have been
used in its original meaning-the Public Assembly, per-
haps with the implication of employment in judicial
proceeding."
Of course, there is no doubt that the word might have
meant a popular assembly at Athens, as elsewhere; but
to shew that it really had the meaning there, there is not
a single testimony that deserves attention. Mr. Grote cites
Tittmann ¹, and, in the place cited, the meaning is no doubt
established, but for places other than Athens; and further
(on p. 217, note 32), a grammarian (Bekker Anecd., i. p. 310)
f Vol. ii. p. 328.
["Connotation" in edition of 1849.]
↳ Darstellung der Griech. Statsverf, p. 215 f.
h
Solon.
39
is quoted, who writes: Ηλιαία· καλεῖται δὲ μέγα δικασ-
τηρίον καὶ οἱ χίλιοι δίκασται. ἐν τούτοις ἀρχαιρεσίαι γίνονται
καὶ αἱ μέγισται κρίσεις καὶ αἱ διοικήσεις· ἐκαλεῖτο δὲ καὶ
μεγάλη ἐκκλησία. The mention of a thousand judges is
enough to make it clear that the grammarian is not think-
ing of a general popular assembly; when he goes on to
make these thousand judges undertake elections to offices,
and determine on administrative measures, the confusion
becomes so obvious as to deprive his assertion of all value.
A similar confusion is often found in the inferior gramma-
rians: they sometimes treat the Heliæa as the assembly
of the ẻкêλŋσiálovтes; and again the Pnyx, or place of
assembly, as a Dikasterion; and at other times confuse the
Ecclesiastic with the Dikastic or Heliastic pay.
I have treated of this point (De Comitt. Ath., p. 69—71 E),
and have explained it by the fact, that in later times the
popular assembly frequently acted as a court of justice,
and many matters came to it for determination, which had
previously belonged to the Dikasteries. From such wit-
nesses we can learn nothing that holds good for more ancient
times; all the better grammarians, and all other authorities
for our knowledge of those times, tell us of the Heliæa only
as either a large building used for courts of justice, no
doubt the largest and most important of all; or as the as-
sembly of judges, whether all together, or in their sections.
Still, we are not to attach much importance to the name;
let us confine ourselves to the actual thing. Even Mr. Grote
distinguishes, later on, between the Ecclesia and the Heliæa;
and we may discover some hint of this distinction as far
back as in the note where he speaks of a "connotation" of
judicial activity. In a subsequent portion of the work¹, the
Ecclesia, or legislative assembly, is distinguished from the
Heliæa, as judicial assembly; but he is there speaking of
the times after Kleisthenes, and after the battle of Platea.
In vol. iii.k, on the contrary, he continues to speak of the
responsibility of the Archons after a completed year of office
(therefore at the evlúvac), to an Ecclesia acting judicially;
and in vol. ii.¹ we find the general assembly of the people
i Vol. iv. p. 99, c. 46. k Vol. iii. p. 117, c. 31. 1 Vol. ii. p. 328.
40 Schömann on the Constitutional History of Athens.
7
as Heliæa, under the guidance of the Senate of Five Hun-
dred. But at what time the distinction between Ecclesia
and Heliæa may have come to exist is not expressly stated;
we may, however, conjecture, from the note in the place
last cited, that it is meant to have begun, at any rate, after
the time of Kleisthenes. The words are, "The fixed number
of 6,000 does not date before the time of Kleisthenes," (and
this, of course, is hardly subject to doubt). Probably, then,
the opinion put forward is, that from the time at which
the fixed number began to be separated from the mass of
the people, to act as juror-judges, the name of "Heliæa "
was transferred to them; the other name, "Ecclesia," being
retained by the popular assembly. But Mr. Grote refuses
to concede for the time before Kleisthenes, not only the
number of 6,000, but any number of jurors whatever, sepa-
rate from the entire citizen body. He only speaks of direct
popular judicature, in cases which may possibly have been
heard over and above the annual judgment of the magis-
trates. Such trials, if it was really to be supposed that they
had taken place, would in any case, he says, have had to be
discontinued under the Pisistratids m, which, of course, can-
not be doubted. But jury-courts proper, after the fashion
of the later Heliastic courts, did not, he thinks, exist as
early as under Solon's Constitution. The name Heliæa
meant at that time the general assembly of the people; its
functions were restricted to election of magistrates, and
the Euthyne of ex-magistrates; all other activities of the
popular assembly belonged only to the later development
of the Democracy, and especially there is nothing to be
said of any legislative activity of the assembly as early as
the time of Solon's Constitution.
(i.) i. Dikasteries, (a.) Passages examined.
I need not say, to begin with, that none of these assertions
can be proved by the testimony of the ancient writers. This
leads to essentially different views, such as have, indeed,
been maintained by modern writers, as far as I know, with-
out exception. Yet it might be possible that reasons of
m Vol. iii. p. 117, part ii. 31.
-
Solon.
41
internal evidence, drawn from the nature of the case, and
a more correct apprehension of the conditions of the time,
had compelled Mr. Grote to refuse belief to the statements of
the ancients, and the views of the moderns, which depend
upon those statements. Even this, however, appears to me
not to be the case, only supposing that the whole question
is reduced to its right proportions, which ought not to be
so very difficult. There are two points of principal im-
portance, viz. the participation of the general assembly of
the people in legislation, and the existence and activity of
numerous judicial bodies formed of sworn citizens. The two
points are connected, and in such a way that it is convenient
to take the latter first.
We saw above, from Book II. c. 9, of Aristotle's Politics,
how, in the judgment of the writer of that chapter, Solon
was the founder of the Democracy, especially in virtue of
having instituted Dikasteries, taken from the whole body.
Plutarch, too, (Solon, c. 18,) mentions in the same way both
the right of giving judgment (Sikáčeɩv), and that of voting
in the popular assemblies (ékkλnoia(ewv), as universal privi-
leges, conceded to all citizens, even to the Thetes. He adds,
that though this seemed unimportant at first, it proved of
extreme importance at a later time, because most points of
dispute (τὰ πλεῖστα τῶν διαφόρων) were referred to these
judges; Solon having permitted recourse to the Dikastery,
even in the cases on which magistrates had to decide. It is
plain that by the "Dikastery" Plutarch did not mean the
popular assembly, but the jury-court. Many have taken
the words to mean, that the jury-courts were only introduced
as courts of appeal, so as to provide a remedy against the
decisions of the magistrates, as judges of first instance; this
is an opinion we shall have to speak of later; but Mr. Grote
pronounces on this point as follows: "The statement of
Plutarch, that Solon gave an appeal from the decision of
the Archon to the judgment of the popular Dikastery, is
distrusted by most of the expositors, though Dr. Thirlwall
seems to admit it. The supposition of an appeal from the
judgment of the Archon is inconsistent with the known
course of Attic procedure, and has apparently arisen in
42 Schömann on the Constitutional History of Athens.
Plutarch's mind from confusion with the Roman Provocatio,
which really was an appeal from the judgment of the consul
to that of the people. The Athenian Archon was at first
a judge without appeal; and afterwards, ceasing to be a
judge, he became president of a Dikastery, performing only
those preparatory steps which brought the case to an issue
fit for decision; but he does not seem ever to have been
a judge subject to appeal "."
Now we have in fact a piece of evidence in quite express
terms, given in Suidas, under the word "Apxwv, as to the
earlier judicial power of the Archons, and its later limitation;
and precisely this evidence tells against Mr. Grote and for
Plutarch. It runs, κύριοι ἦσαν (οἱ ἄρχοντες) ὥστε τὰς δίκας
αὐτοτελεῖς ποιεῖσθαι· ὕστερον δὲ Σόλωνος νομοθετήσαντος
οὐδὲν ἕτερον αὐτοῖς ἐτελεῖτο ἢ μόνον ὑποκρίνειν (better ἀνα-
κρίνειν) τοὺς ἀντιδίκους. This article in Suidas° is unmis-
takably derived from a trustworthy source.
Doubts may
be raised against the second part of the statement, viz. that
it was in consequence of so early a legislation as Solon's that
the Archons were limited to the Anakrisis, or instruction of
law-suits. Still, we must regard the first part, which says
that the decisions of the Archons were avтOTEλeîs (i.e. not
subject to appeal) only down to Solon's time, as a second
and not unimportant piece of evidence besides Plutarch's
statement. A case decided by the Archon was Síkŋ avto-
Teλns only so long as the decision was not subject to
appeal; now, according to Plutarch, there was an appeal
in the time after Solon, and so the Archon's decisions
were no longer avтоTeλeîs, which is also involved in the
statement from Suidas. Therefore, the two statements agree,
which makes it the less permissible for Mr. Grote to assume
a confusion in Plutarch's mind with the Roman provocatio.
And what does he think it was that Plutarch confused with
this? A confusion necessarily pre-supposes two things: in
this case, the first thing is the provocatio; what is the other?
Plutarch must have found something in his authorities
which could be confused with the provocatio, and obviously
this can only have been the Appeal which Mr. Grote denies;
• Also in ovvay. λe§. xpno., Bekker, Anekd., i. 449.
■ ii. 329 n.
Solon.
43
which, therefore, cannot have originated, to begin with, in
the confusion in Plutarch's mind. Moreover, Plutarch was
not in fact guilty of making that confusion; for, indeed, he
expressly distinguishes the appeal to the people, introduced
by Publicola, from that to the Dikasts, which Solon intro-
duced; though he does compare the two together, as he was
quite justified in doing. Mr. Grote's denial rests on nothing
but his own conviction,-it would be truer to say, his preju-
dice,—that jury-courts with numerous members, among
whom there might possibly be persons of the lowest pro-
perty-class, are inconceivable as existing in Solon's time.
I have quoted above his emphatic expressions on the point;
"it would be a marvel that the half-emancipated Thetes, and
small proprietors, for whom he legislated,—yet trembling
under the rod of Archons, and utterly inexperienced in col-
lective business, should have been found suddenly com-
petent to fulfil these ascendant functions P."
Yet Mr. Grote himself did not think it marvellous that
Solon should entrust to these very same people, not only the
power of electing their magistrates, but also that of passing
judgment on their conduct in office. And both were to be
done in the general assembly of the people, to which all,
without any distinction, had access; and in which all, with-
out any distinction, rich and poor, elder and younger, had
an equal vote, and exercised it without being reminded by
an oath of the duty of careful and conscientious examination
of the case.
As Mr. Grote did not think this extraordinary,
he ought not to find it so utterly incredible that Solon should
have committed the judgment of offences other than those of
the magistrates, and the decision of law-suits, to an entirely
different assembly. For this assembly, in the first place,
though numerous, was far less numerous than the general
assembly of the people; secondly, it was composed solely of
men of mature age (i.e. thirty at least); thirdly, it was
bound by a solemn oath; and fourthly, though it, too, might
contain citizens of the lowest class, yet it did not of necessity
contain them; and if it did, they were no doubt in smaller
numbers. All that our authorities tell us is, that Solon con-
Pii. 328.
44 Schömann on the Constitutional History of Athens.
stituted jury-courts, from which the lowest class was not ex-
cluded; they give no information of details, and we are
therefore limited to probable conjectures. We may be sure
that the number employed was not as large under Solon's
enactment as it was later, when 6,000 citizens were annually
selected to act as jurors; besides, they would hardly be
chosen by lot. Now if they were selected by the confidence
of their fellow-citizens, then the risk that a large number of
ignorant and incompetent persons might be nominated was,
in Solon's time, not very great. Just as little was it to be
feared that poor men would be over eager in competing for
an office which cost time and trouble, and brought them
nothing. We may assume with certainty that the Heliæa,
though legally open to all, was practically composed only, or
chiefly, of the wealthier or more cultivated class. Again, we
have no precise knowledge of the cases in which the He-
liastic courts acted; but we may assert with confidence that
they were far fewer then than later. Many are of opinion,
as I remarked above, that the jury-courts were instituted by
Solon only as a court of appeal; they think themselves
forced to this conclusion by Plutarch's statement (Solon,
c. 18), which was quoted above. Still, Plutarch's words
state nothing more than that recourse to the judgment of
a Dikastery was open to any one who felt aggrieved or
injured by the decisions or decrees of the magistrate. This,
however, was the case in later times too, when the magis-
trates were substantially no more than officials for the formal
initiation of legal proceedings, and yet retained a certain
limited power of inflicting penalties. But Plutarch's words
do not in the least imply that Solon instituted Dikasteries
simply and solely for the purpose of receiving appeals from
the sentence of the magistrates, considered as judges of first
instance.
But, to enable ourselves to judge more correctly of the
position held by the Heliastic courts in the Solonian system,
we must survey the matter rather more comprehensively.
Solon.
45
i. (B.) Courts other than the Dikasteries.
In the Athenian state, in the period of which our autho-
rities give us more exact knowledge, there existed besides
the Heliastic Dikasteries (omitting the Areopagus and
Ephetæ, which need not be introduced here,) various other
descriptions of courts; viz. local judges, Diætetæ, and Nau-
todikæ.
✔
Local Judges.
The local, or district judges, (karà dýµovs dikaσтal,) were
thirty in number; later, after the fall of the so-called
thirty tyrants, the number was raised to forty. They
held their courts in the several Cantons, or Demes, and
moved from place to place for that purpose. Probably
there were fixed places for their sittings in the several parts
of the country; and it was announced beforehand at what
time they were to be present at each. Their province in-
cluded, at least in later times, only trivial cases (i.e. con-
cerning amounts less than 10 drachmæ); and besides these,
substantial injuries (S. aixías) and cases of assault (8. Blaíov).
According to some authorities, among whom is Demosthenes,
they are selected by lot, according to others by popular elec-
tion; we must assume the latter for earlier times, and the
lot for the later age. We are not told when they were in-
stituted; but probabilities are in favour of its having been
in the earlier time, perhaps even in that before Solon. For
the centralization of all authorities in the capital, which com-
pels the citizens to be there constantly and in great numbers,
is far more democratic than oligarchic. In oligarchies and
aristocracies, on the contrary, provision is made, as far as
possible, to avoid giving occasion to the people for coming
to the town from the country or the villages. Moreover, we
know of the Athenians, that a great part of the people were
ill-pleased to leave their Demes, even at the time of the
Peloponnesian war; and a lawgiver like Solon would hardly
force people to come into the town for every trifling law-
suit, which would be not merely inconvenient, but, owing to
the expenditure of time and money, extremely oppressive to
the poorer men.
46 Schömann on the Constitutional History of Athens.
Diæteta.
Diætetæ, or arbitrators, were of two kinds,-compromis-
sory, chosen by the parties themselves, by way of compro-
mise; and public, appointed by the State. Compromise, by
means of arbitration, was no doubt a primitive custom at
Athens, as everywhere else; it has been rightly observed
that in earlier times, before the notorious love of litigation
set in, it was probably not thought proper for any one to
have recourse to a court of justice, till he had made an at-
tempt to come to an understanding with his opponent before
a private arbitrator. And no doubt it often happened that
a decision was thus come to, in which both parties acquiesced,
so that the assistance of the court was not required. This is
what Plutarch's story refers to (Aristeides, c. 7), when he says
that envy and discontent were created against Aristeides, be-
cause, in consequence of his reputation for justice, he as
good as deprived the courts of their occupation, by judging
and determining all possible cases; ἀνηρηκὼς τὰ δικαστήρια
Tô Kρívelv åπаνтa Kai Sikάšeiv. Mr. Grote, too, refers to the
place in Plutarch, but he has an extraordinary idea that
Aristeides won his fame for justice by his discharge of the
office of Archon; and he finds in this a proof of his theory
that at that time the Archons were still judges themselves.
As if an official, whose special function was to administer
justice, could become the object of popular dislike, because
he exercised his powers justly, and discharged his office so
well, that people were content to abide by his decisions. It
was only in case of Aristeides' activity being unofficial, that
people could take offence at it, and regard it as a disparage-
ment to the Dikasteries officially established for the adminis-
tration of justice.
The public Diætetæ may be regarded as subordinate
judges, or judges of first instance. It is not made out
from what date they existed, though the ruling opinion in
modern times has inclined to place their institution rather
late. Meier, whose treatise on the Diætetæ discusses the
whole subject with his usual exhaustive profundity, thinks it
9 Vol. iii. p. 122, c. 31.
Solon.
47
probable that they were instituted on occasion of the revision
of the laws undertaken in the time of the archon Eukleides;
in which opinion other enquirers of great repute agree with
him. I cannot, however, think that the grounds of this
opinion are convincing. The principal reason, or, properly
speaking, the only one, depends on the mention of the law
concerning Diætetæ by the orator Lysias, as one very lately
passed. It is in a complaint made by the speaker of a speech
against Archibiades, of which unfortunately only the begin-
ning is preserved, in Dionysius of Halikarnassus. He com-
plains that his adversary, who had brought a law-suit against
him, claiming discharge of a debt, which claim the speaker
alleged to be unfounded, had not listened to his requests,
made after the accusation had been preferred, that the matter
might be taken before compromissory arbitrators to be
chosen by the friends of both parties, until the law about
Diætetæ had been passed; his words are, тaûт' èμоû тρока-
λουμένου οὐδεπώποτε ἠθέλησε συνελθεῖν, οὐδὲ λόγον περὶ
ὧν ἐνεκάλει ποιήσασθαι οὐδὲ δίαιταν ἐπιτρέψαι, ἕως ὑμεῖς
τὸν νόμον τὸν περὶ τῶν διαιτητῶν ἔθεσθε. Unfortunately,
these words are the end of the extract in Dionysius; and so
we can ascertain only two facts from the fragment: first,
that a law about Diætetæ was passed at that time; and
secondly, that the law contained something which deter-
mined the antagonist not to persist in his former refusal.
Then the question arises, As he did not persist in his re-
fusal, what did he do? Did he assent to the speaker's re-
quest, and enter into a compromise? This, it would seem,
must be negatived; as far as we know, there was no appeal
from the decision of a compromissory arbitrator, and the
case in Lysias is being pleaded before Dikasts; therefore,
if it had previously been pleaded before arbitrators, they
must have been arbitrators subject to appeal; and the public
arbitrators were so subject. So the antagonist had not done
exactly what the speaker wished, but he had done something
like it. The speaker had desired him to leave the matter to
the decision of compromissory arbitrators; he did not do
that; he submitted it to arbitration, but public arbitration,
instead of compromissory. Now how far can the law about
48 Schömann on the Constitutional History of Athens.
"
arbitrators, which was passed in the interval, have deter-
mined him to do so? Must it necessarily be assumed, that
public arbitrators were not instituted till the passing of
that law? I do not think so. Unfortunately, we have not
the law itself. The only quotation which we possess from
a law about arbitrators, in Demosthenes against Meidias,
p. 545, contains a rule referring to private or compromissory
arbitrators; we may accept this as proving at least that
the law about arbitrators referred not merely to the public
Diætetæ, but to the private ones as well.
Now, it is admitted that these were not introduced by
the law in question, but quite of primitive origin; conse-
quently the public Diætetæ too may have been older than
this law. It is quite possible that the law may have con-
tained more precise rules, confirming, amending, or com-
pleting the laws previously in force about both classes of
arbitrators. For instance, Th. Bergk" has supposed, with
reference to the compromissory Diætetæ, that the rule which
made appeal impossible from their decisions, may have been
introduced by this law; while previously it had been open
to the parties to make their compromise on these terms,
or not, at pleasure; so that in many cases the function of
the Diæteta was rather an attempt at conciliation, than
a definitive decision of the controversy. And in reference
to the public Diætetæ, the law might, for instance, contain
an extension of their functions. For according to the law
of the orator's period, the Diæteta were competent to act
in all private cases without exception. It is not improbable
that before, this had either not been the case at all, or not
in the time immediately preceding the new law. Now if
this law extended the provinces of the Diætetæ, the case
r In the Zeitschrift f. d. Alterthumswiss, 1849, p. 266 f.
• It is conceivable, that this may have been done with the view of reliev-
ing the Heliastic Dikasteries, and the officials occupied with the preliminary
formalities of law-suits. It might reasonably be assumed, that appeals
would not be made to the Heliasts from all decisions of arbitrators; and
if an appeal was made, at least the officials were saved the trouble-
some and tedious preliminary formalities, as these had already been gone
through before the Diæteta; and the "acta" of the proceedings before
them went as a rule to the Heliasts without addition. Economy might
Solon.
49
in Lysias might be explained without difficulty; the accuser
had made a claim against the speaker, the amount of which
exceeded the competence of public Diætetæ at that time,
(i.e. previous to the new law); so that the case could only
come either before compromissory Diætetæ, or before a
Heliastic court. The former was the course which the
speaker desired, but the accuser would not agree to it.
Meantime the new law came into existence, making the
public Diætetæ competent even for matters of the kind in
question. Then the plaintiff no longer refused to bring
the matter to arbitration before the public arbitrators;
naturally, because recourse to the Heliastic court was still
open to him, if worsted before the Diætetes; whereas, if he
had agreed to the speaker's earlier demand, and entrusted
the case to compromissory arbitrators for final decision, he
would have run a risk of losing his case without appeal.
Perhaps other possibilities might be imagined with refer-
ence to the course of proceedings in this case, in order to
explain the plaintiff's original refusal, and his assent sub-
sequent to the passing of the law about Diætetæ; but I am
not fond of playing with mere possibilities, and shall be
satisfied with that which I have suggested; and even in
its case, I shall be quite content, if only the concession
is made, that it is at least no more improbable, than the
hypothesis based by others upon the fragment of Lysias
in question, that public Diætetæ were then instituted for
the first time.
The fact which is alleged as a second reason in support
of the conjecture in question, is still more easily accounted
for. It is true that the older orators, those before Lysias,
do not mention the Diæteta; of course, as their extant
orations in no case deal with private suits, there was
no occasion for such mention to be made; even Lysias
mentions them only once besides, in the fragment of
the speech against Diogiton; and in Isæus, in whose time
there is no doubt that they existed, no reference to them
occurs.
also be an object, as trial before Dietetæ was cheaper both for the state
and the parties.
F
50
Schömann on the Constitutional History of Athens.
Nautodike.
With regard to the Nautodikæ, there is little that can
be made out with certainty. None of the orators mention
them but Lysias; we learn from him that complaints against
μπоρоi (persons engaged in maritime commerce) were laid
before them; and, if we are strict in our interpretation of
the orator's expression ékedínaoav, that such cases were
tried to the end, and decided by them.
Besides this, the Grammarians tell us that ypaþaì ¿evías
(accusation of aliens on account of the illegal assumption
of citizen rights) as well, belonged to the province of the
Nautodikæ; at least, in case of the unqualified person hav-
ing intruded himself on the Phratries. This is not the
place to hazard conjectures as to the explanation of these
two-fold functions. Still, it seems to result from the state-
ment of Lysias, that the Nautodikæ did not merely, like
other magistrates, receive the accusation, and initiate the
suit, but that they had also to decide in the character of
judges. This circumstance may be taken to indicate that
their origin belongs to very early times; and we have no
reason to deny that even before Solon's time, the want may
have been felt of a special authority for the litigation of
éμπоρоl. However, think as we may about the antiquity of
the Nautodika, at least we are fully entitled to regard the
cantonal judges, and the public Diætetæ, as belonging to
the time of Solon.
57
Archons' Judicial powers not such as to exclude Dikasteries.
In consequence of these considerations, the institution of
the Heliastic courts will no doubt appear to us in a some-
what different light, from that in which it appeared to
Mr. Grote. Mr. Grote has in his mind no judicial autho-
rities besides the Archons on the one hand, and the Heliasts
on the other, (of course, not counting the courts for homi-
cide). For this reason he shews a very intelligible reluc-
tance to ascribe to the Heliasts, at that early time, the
extensive functions which they must have had if Solon
Solon.
51
assigned to the Archons only the "Instruction" of law
cases, and the judicial determination could proceed from
no one but the Heliasts. Therefore Mr. Grote prefers to
represent the Archons, even after Solon, as having power
to judge, as well as to initiate; and in order as far as pos-
sible to set aside the popular courts, he will not even admit
an appeal to them from the sentence of the Archons,
and confidently neglects all evidence which makes against
his view.
I have remarked above, how one passage, Plutarch, Solon,
c. 18, has been misinterpreted by many, to mean that the
Heliastic courts were instituted merely as courts of appeal,
while the Archons remained judges of first instance. The
correct view is unquestionably as follows: the Archons, in
spite of the fact that they were on the whole restricted by
Solon to the "instruction" of cases, yet did not entirely
cease to act as judges themselves. This is sufficiently clear
from the one law concerning the functions of the first
Archon, quoted in Demosthenest; "the Archon is to have
the care of orphans, and heiresses, and houses that are in
danger of dying out, and of widows who remain in the
house of their deceased husbands, asserting that they are
pregnant. Of all these he is to have the care, and to
permit no one to injure them. And if any one does injure
them, or act illegally towards them, the Archon shall have
power to fine him within the limit fixed for his judicial
competence "."
Now, as a rule, the Archon could only be aware of the
offences here indicated by the laying of an information,
and could only impose a penalty after satisfying himself
of its truth; that is to say, after investigation. This neces-
sarily implies that he would give the accused a hearing,
confront him with the informer, and receive evidence from
both parties; and however summary, or informal, the pro-
cedure may be held to have been, still the Archon ob-
viously exercised a judicial function, inasmuch as he gave
sentence after investigation. The only restriction upon him
was, that he could not give judgment for more than a cer-
· πρὸς Μακάρτατον, p. 1076.
[u κατὰ τὸ τέλος.]
E 2
52 Schömann on the Constitutional History of Athens.
tain fixed penalty; but if the offence seemed to demand
a heavier fine, he had to bring the case before a Dikastery.
And the other government officials, to whom the law gave
power to impose fines (eπißoλàs étißáλλeiv), no doubt ex-
ercised similar judicial functions to those of the Archons,
each in his sphere. There is nothing to justify us in as-
cribing to them a larger judicial capacity in Solon's time;
certainly not, as Mr. Grote does, one so extended that there
was no appeal from their sentences. Their penal compe-
tence, i.e. the amount of the penalty which they had power
to impose, may have been greater, and restricted at a later
time; this is all that can be conceded; but for the rest,
we are not justified in conceiving the judicial procedure
as regulated on completely different principles from those
which we find in later times, even if a considerable change
had taken place in the mode of their application. The
leading principle of the Attic procedure is the separation
of the two stages of the case, which we may designate, for
the sake of brevity, by the Roman names of Jus and
Judicium.
Relation of Diætetæ to Dikasteries.
The only exceptions to this universal principle were in
the case of the cantonal judges, the Diætetæ, and probably
also the Nautodika. In all trials but those before them, it
was the business of the magistrate, in the first place, simply
to receive the complaint, to hear the parties, and then to
arrange for further proceedings, according to circumstances,
or according to the wishes of the plaintiff. As regards the
arrangements which were to be made according to circum-
stances, I shall content myself in this place with referring to
my "Attischer Process" As regards the wishes of the
plaintiff, we know that in later times the magistrate asked
him whether he wished the matter dealt with before a Dia-
tetes, or not. In earlier times, according to Pollux, no
private case was brought before a Dikastery, which had not
been previously brought before Diæteta; and he means
- Book iv. c. 5 and 6.
y viii. 126.
Solon.
53
public Diætetæ, as the context is enough to prove, for he
has spoken of them immediately before.
Now the first thing to ask is, what is to be understood by
that "earlier time?" He says, Táλal. It is admitted that
πάλαι.
we must refer it to the time before the classical orators; but
this time is long; between Solon and Demosthenes there is
an interval of more than two hundred years. Now if, ac-
cording to the above-mentioned opinion of modern enquirers,
the public Diætetæ were not introduced before the time of
Lysias, the Táλaι would not indicate a time before the class-
ical orators, to whom Lysias of course belongs, but rather
the earlier period of the classical orators themselves. If, on
the contrary, as I have tried to shew above, there is no
ground for denying the institution of public Diætetæ to the
Solonian age, then there is nothing to prevent us from ex-
tending the waλat as far back as that age.
S
The second question is, whether what Pollux states was
a legal rule, or only custom and tradition, which it was
possible to follow or not at pleasure. The latter is the
opinion not only of Meier, but of Th. Bergk; who, how-
ever, obviously against the context in which the statement
in question stands in Pollux, refer it not to public, but to
private arbitrators. On the other hand, the former is
C. F. Hermann's opinion; and is supported also by the
testimony of an ancient grammarian, from which we learn
that there really was once a law, μὴ εἰσάγεσθαι δίκην, εἰ
μὴ πρότερον ἐξετασθείη παρ᾿ αὐτοῖς (ie. τοῖς διαιτηταῖς)
Tò πρâyμа. When this was, cannot be reliably ascertained.
Bergk supposes that Demetrius of Phalerum enacted the
rule, fixing as law what had previously existed as custom.
Granting that it were really to be referred to Demetrius,
still there is no reason to assume that he merely sanctioned
an earlier tradition, and did not rather renew an old but
obsolete law.
"Frag-
z In the Appendix to the English edition of Photius, p. 673; and pub-
lished, with Commentary by Meier, Halle 1834, under the title,
mentum Lexici Rhetorici."
54
Schömann on the Constitutional History of Athens.
i. (v.) Comparison of Province of earlier and later Dikasteries.
Now suppose that cantonal judges, public Diætetæ, and
perhaps Nautodika as well, existed besides the Heliastic
courts, as early as Solon's time, having been either insti-
tuted, or found and retained by him. Suppose it was a legal
provision that private cases should go in the first instance.
before the Diæteta; commercial cases before the Nautodikæ;
trivial matters, and Sikai aixías, and Bialov in the Demes,
before the cantonal judges. Then there can have remained
for the Heliastic courts only public accusations, and those
private cases in which appeal was made to them from the
decision of the other judges. Appeals would certainly not
be very frequent; public accusations were at that time un-
doubtedly rarer than in the later period; the courts of
homicide were competent for a not-inconsiderable class of
offences. In consequence of the superintending power pos-
sessed by the Areopagus over the conduct both of official
and of private persons, it may safely be assumed that many
offences which subsequently belonged to the Heliastic courts,
were at that time brought before the Areopagus 2. This
might take place, either in the form of an accusation proper,
in which case the accuser pledged himself to carry the
matter through against the accused; or in the form of an
information, by which the Areopagus was obliged to inves-
tigate the matter ex officio, and then to award punishment
as it might think fit. Thus there were certainly not an
excessive number of cases which had to be taken before
a Heliastic Dikastery. They were either such as the Ar-
chons, before whom the suit was begun, did not find suf-
ficiently prepared to be disposed of by themselves, by means
of a brief enquiry, and a fine imposed on the loser; or
a The following assertion, taken by Maximus (in the proœm. to Dionys.
Areop., Opp. tom.ii. p.xxxiv.) from Androtion and Philochorus, alludes to the
time before the restriction of the Areopagus, effected by Ephialtes. Müller,
Fragmenta Hist. Græc., Philochorus, p. 17, [Case, Materials, &c., p. 11,]
ἐδίκαζον οὖν οἱ Αρεοπαγῖται περὶ πάντων σχεδὸν τῶν σφαλμάτων καὶ παρανομιῶν,
ὥς φησιν Ανδροτίων ἐν πρώτῃ καὶ Φιλόχορος ἐν δευτέρᾳ καὶ τρίτῃ τῶν ᾿Ατθίδων.
Cf. Böckh on the plan of the Atthis of Philochorus, in the Abhandlungen
d. Berl. Ak. d. Wiss. 1832, p. 12.
Solon.
55
those in which the parties, being discontented with the
decision of the Archons, made an appeal, and insisted on
investigation by the Heliasts. But the principle according
to which nothing but the acceptance of the complaint, and
the "instruction" of the suit, belonged to the Archon, except
in those less serious cases, that is to say, the separation.
between Jus and Judicium, must be unhesitatingly acknow-
ledged as for the later times, so also as accepted in the
Solonian constitution. At Rome, too, this separation was
ancient, and demonstrably older than the legislation of the
Twelve Tables. There is no conceivable reason for denying
it to the Greeks of the Solonian age. The Archon at Athens,
in referring the parties to arbitrators, was doing essentially
the same thing as the Magistrate at Rome when he ap-
pointed them a "judex," or an "arbiter." It was only
in the court of higher instance, the Heliastic court, which
in many public cases was also the first and only instance,
that Athens, after Solon's legislation, had something which
Rome had not. That Solon appointed for the purpose a con-
siderable number of judges lay in the nature of the case;
and judicial bodies, consisting of numerous members, were
previously known, not only to Athens from the time of the
institution of the fifty-one Ephetæ (not to speak of the
Areopagus), but also to the poet of the Iliad, who, in the
eighteenth book, represents an assembly of the elders sitting
to judge a case about the payment in expiation of a slain
man's death. Solon's Heliasts were no Homeric elders,
no Eupatrid lords; they were persons of mature age, high
repute, and for the most part, no doubt, of some property.
It is true that poor men were not excluded; but there was,
as I have shewn above, no danger of their finding access in
excessive numbers, as happened of course in later times.
In later times, the Heliastic courts obtained a sphere of
activity that was constantly being extended.
This was
owing, in the first place, to the permission conceded to
suitors to go at once before the Dikastery, even in private
suits, omitting the arbitrators; an innovation the date of
which cannot be definitely established, but which we may
with probability place in the time of Pericles, after the in-
56 Schömann on the Constitutional History of Athens.
troduction of judicial pay. In the second place, it was owing
to the restrictions on the power of the Areopagus, and the
abolition of its right of superintendence, as a result of which
the Heliasts took its place in all cases in which it had ceased
to be competent. In the third place, the magistrates them-
selves found it advisable to make no use of their right of
independent decision, even in the less difficult or important
cases, whenever they had reason to suppose that an appeal
would be made from their decision. Such a change would
result naturally in the course of events, without our being
compelled to join Mr. Grote in assuming a radical change.
of principle, and setting down the separation of Jus and
Judicium as not having arisen till a later time. Moreover,
it will readily be believed that in the times immediately
after Solon, the Heliastic courts really came into action
rarely enough, even in cases where, according to his con-
stitution, they ought to have done so; and that public
accusations in particular could hardly be brought before
them. For we have to remember, that soon after Solon's
legislation the Peisistratid tyranny began, and it was cer-
tainly not favourable to the popular courts; but after the
fall of the Peisistratids, they gained a new organization by
the help of Kleisthenes. The number six thousand, and
the division into ten sections, or Dikasteries, belong to this
time. How many Heliasts there may have been before,
and how they were divided, we do not know; but their
existence is none the less certain.
(ii.) Legislation.
(a.) Nomothetæ in the time of Demosthenes.
We may now turn to the second of the principal points
indicated above, and consider the participation of the gene-
ral popular assembly in legislation; that is, enquire what
power Solon conceded to the popular assembly in respect
of the introduction of new, and the abolition of old, laws.
The procedure in this legislation, as prescribed in the time
of Demosthenes by the laws then existing, though frequently
transgressed, is as follows. In the first popular assembly
Solon.
57
of the year, the question is laid before the people, whether
it would admit proposals for amending or supplementing
the existing laws, or not. It is self-evident that on this
question there could not but be debates, some advising the
admission of such proposals on grounds of utility or ne-
cessity, others opposing it. If the people declared in favour
of their admission (which would hardly be the case on
every occasion), this decision involved nothing more than
that it was now open to those who meant to make pro-
posals to bring them under consideration. This was done,
according to the law in Demosthenes, by going through
the form of exhibiting the proposals in public on the
market-place near the statues of the Eponymi, that every
one might acquaint himself with them. After this had
been done, the third regular assembly dealt with the
question of nominating a legislative committee, the so-
called Nomothetæ. The Nomothetæ were members of
the Heliæa, and therefore men over thirty years of age,
and on their oath. Details of the manner of nomination,
whether by lot or by election, are not given. All we learn
is, that the people determined the number to be nominated,
and the time for which they were to serve, according to
the number and nature of the legal proposals brought
forward; and that the same was the case as to the pay-
ment to be made for their trouble.
4
The proposed measures had been made accessible to every
one's observation by their exhibition near the Eponymi.
Nevertheless, before the Nomothetæ were nominated and
their sittings began, they were read aloud by a clerk in
every assembly that took place in the interval, that they
might be the more certain of being generally known. The
proceedings before the Nomothetæ were carried on just
in the form of a lawsuit. The proposers, who wished to
have an old law abolished and another put in its place,
or to have any changes introduced into the existing legis-
lation, appeared as plaintiffs: those who pronounced the
existing laws to be good and adequate appeared as defend-
b κατὰ Τιμοκράτους, p. 705, 55.
1
}
58 Schömann on the Constitutional History of Athens.
ants. To guard against the want of a proper defence of
existing law, and proper precautions against innovation,
a number of Synegori, or public advocates of the existing
laws, were elected by the people for that purpose, and others
might of course join them of their own accord.
(B.) Nomothetæ in Solon's time not improbable.
C
This is the procedure, as we learn it from Demosthenes.
F. A. Wolf, in the Prolegomena to the Leptines, p. 133,
considers the institution of Nomothetæ comparatively late;
in the earlier period, he thinks laws were dealt with just
like Psephisms (that is, special proposals made in view of
particular cases, and for transient purposes), by the public
assembly only: and therefore the people collectively was
not, as under the institution in question, absolutely limited
to the decision of the question whether to admit amendments
on the laws or not, but had the right of examining the
actual proposals, and of accepting or rejecting them. I have
declared myself against this view, and pronounced the pro-
cedure before Nomothetæ to be the more ancient; and the
other, in which no distinction is made between laws and
Psephisms, to be an abuse which forced itself in at a later
time. In this, as I think, the nature of the case as well
as the testimony of the ancients is on my side. It is plain
of course that some points in the regulations, such as the
exhibition near the Eponymi, and the payment to the
Nomothetæ, are not derived from Solon, but belong to a
later time. But these points do not touch the essence of
the institution itself, which we may regard as very ancient
in spite of them. In thinking it to be Solonian, I am less
influenced by the evidence of the orators, (of whom De-
mosthenes ascribes it expressly to Solon, Eschines to the
founder of the Democracy, which most naturally means
Solon), than by the fact that I can find absolutely no ra-
tional ground for denying it to Solon. It displays the wise
foresight of the legislator, in desiring to take precautions
to prevent the duty of passing judgment on the laws from
• De Comitiis Ath., 265, ss.
Solon,
59
devolving on the mass of the people as it comes together
in the popular assembly, composed of young and old, rich
and poor, rude and cultivated, without any distinction.
On the contrary, he provides that every legislative pro-
posal should be subject to the decision of a smaller number
of older men, selected and sworn, after hearing and carefully
examining the arguments alleged by the proposer of the
measure on the one hand, and by the advocates of the
existing law on the other. This amounts to nothing less
than, strictly speaking, to withdraw the legislation from the
general assembly of the people, and only to concede to it,
what may be conceded without scruple, the right of de-
ciding whether proposals of amendment are to be permitted
at all, or not. On the other hand, a procedure in which
the assembly of the people decides for itself and by itself
on laws as well as Psephisms, is only conceivable in a De-
mocracy which is already very advanced; and the orators
who have been referred to complain loudly of this abuse,
as having recently become prevalent. Demosthenes d says
it has brought things to such a pass, "that almost every
month laws are carried to further the interests of the
orators." "There is no longer any distinction whatever
between Psephisms and laws; the laws, with which the
Psephisms should be in accordance, are later than the Pse-
phisms themselves."-" Some people of influence, as I hear,
succeeded in getting themselves permission to bring for-
ward laws whenever and however they pleased; and since
then you have so many laws in contradiction with each
other, that you have felt the necessity of electing a special
commission to enquire into and indicate the contradictions
in the laws; a business which shews no signs of coming
to an end." The expression "as I hear," (os ěyw πvvlá-
πυνθά-
voμai,) might lead to the conjecture that the first author of
the abuse was still remembered in Demosthenes' time, and
that therefore the abuse itself could not be very ancient;
but that is of no importance. Only it is certain that if
there are no forms of legislation but those two to choose
d Dem. c. Timokr., p. 744, in Leptinem, p. 484 f.
60 Schömann on the Constitutional History of Athens.
from, our choice which of the two is Solonian, and which
is not, cannot be doubtful for a moment. I said, “If there
are no forms but these to choose from," because a third
course may no doubt be imagined, that is, that Solon might
have ordained neither the one nor the other form of legis-
lation, but have entrusted it to some existing authority,
e.g. the Areopagus. However, as there is no trace or in-
dication of such a measure, we may leave this idea to those
who are fond of amusing themselves with mere possibilities.
But there is yet a fourth alternative, and this is the one
which Mr. Grote affirms; viz. that Solon neither entrusted
legislation to the general assembly of the people, nor in-
stituted a legislative committee for the purpose; but that
he simply framed no rules at all as to the way in which,
in case it should be required, his legislation might be
amended, unsuitable laws set aside, and new ones put in
their place. Let us hear Mr. Grote's reasons.
(y.) Grote's arguments against Solonian origin of Nomothetæ.
Such a legislative committee as that described above,
Mr. Grote is sufficiently debarred from regarding as an
institution of Solon, by the fact that he does not regard the
Heliasts as Solonian. This is quite clear; if there were no
Heliasts, there was not a legislative committee composed
of Heliasts. We may hope that this argument is adequately
met by what has been said about the Heliasts in the pre-
ceding section. And it was equally impossible for Solon
to enact that proposals for new laws should be exhibited
near the statues of the Eponymi, which did not exist in his
time. This, too, is perfectly clear; and yet neither this,
nor other traces of a later time, which are apparent in the
law quoted by Demosthenes, have deterred me, and other
careful enquirers who agree with me, from regarding the
institution of Nomothetæ as Solonian. For we supposed
that all such traces only pointed to a modification of the
procedure adapted to later conditions, and did not touch
the essence of the institution itself. Mr. Grote, in saying
• Vol. ii. p. 324 n, part ii. c. 11.
Solon.
61
that "this admission seems to him fatal to the cogency
of my proof," seems to me, on the contrary, to misappre-
hend the real nature of the case. I have never said any-
thing different from what I say now, viz. that those traces
do not force us to doubt the greater antiquity of the insti-
tution, if it is probable on other grounds. Mr. Grote, on
the contrary, speaks as if the later form necessarily com-
pelled us to believe in a later origin of the institution itself.
h
Finally, we come to his main argument; "Solon," we
read in the margin f, "never contemplated the future change
or revision of his own laws;" and the text says,
g
"To
suppose that Solon contemplated and provided for the
pe-
riodical revision of his laws, by establishing a Nomothetic
jury, or Dikastery, such as that which we find in operation
during the time of Demosthenes, would be at variance (in
my judgment) with any reasonable estimate either of the
man or of the age. Herodotus says that Solon, having
exacted from the Athenians solemn oaths that they would
not rescind any of his laws for ten years, quitted Athens
for that period, in order that he might not be compelled
to rescind them himself. Plutarchi informs us that he
gave to his laws force for a century absolute." "Gelliusk"
this is added in a note, "affirms that the Athenians swore,
under strong religious penalties, to observe them for ever."
"Solon himself, and Drako before him, had been lawgivers,
evoked and empowered by the special emergency of the
times; the idea of a frequent revision of laws by a body
of lot-selected Dikasts, belongs to a far more advanced age,
and could not well have been present to the minds of either.
The wooden rollers of Solon, like the tables of the Roman
decemvirs, were doubtless intended as a permanent 'fons
omnis publici privatique juris." "
>
It may be that this or that reader will be convinced by
argumentation of this kind; for my own part, all that
Mr. Grote puts forward seems to me devoid of cogency,
and part of it to be even capable of being turned against
him. He appeals principally to the precautions which
Solon is said to have taken to secure the unchanged per-
h i. 29. i Solon, c. 25. kii. 12.
f
Vol. ii. p. 325, part ii. c. 11. g Ib.
62 Schömann on the Constitutional History of Athens.
manence of his laws. The statements of Plutarch, and
à fortiori that of Gellius, are of course not credible to any
one like Mr. Grote; but perhaps he holds Herodotus' tes-
timony to be reliable. So I will let it pass too, though
I must confess that the matter is not quite clear to me.
For I do not see to what extent, and in virtue of what
position, Solon, after he had fulfilled his commission and
laid down his office, and after his laws had been accepted
by the people, could have continued to have authority to
repeal those laws, to the inviolate observance of which he
had bound the people. But, doubtless, Mr. Grote under-
stands that better, and so I will let my own scruples be. But,
then, what follows from Herodotus' story? Just this; that
Solon feared the Athenians would be inclined to change his
laws too soon; and that, therefore, he bound them to a strict
observance of the code for ten years at least, that they
might learn their value by experience. After this term,
which was really not very long, they were to cease to be
bound, and to be free to make changes. Solon's own re-
mark in Plutarch goes to shew, that he by no means
regarded his legislation as perfect, or beyond improvement.
Plutarch says that when he was asked whether he had
given the Athenians the best laws possible, he answered,
'the best which they would have accepted;" that is, not
absolutely the best, but only as good as were possible
with the existing disposition and sentiments of the people.
So this implies the admission that, under other conditions,
and with different dispositions and sentiments among the
people, other laws would be better. The knowledge that
men's relations and sentiments do not continue immutably
the same, and that, therefore, changes of law will become
desirable or necessary, is not so abstruse that we should be
forbidden to give credit for it to one of the seven sages, who
was undoubtedly the wisest man, "the largest mind of his
own age
m),
There is in Plutarch another story that bears on this
point, not in the life of Solon, but in the Symposium of
the Seven":"Tidings came from the Spartan Chilon, that
m Grote, vol. vi. 39, part ii. c. 67.
¹ Solon, c. 15.
n c. 7.
Solon.
63
he renounced his friendship with Solon, because the latter
had said that laws must be subject to change (Toùs vóμovs
μetakivηtoùs eivai)." The anecdote may be an invention;
I do not mean to deny that. But it not only gives a good
indication of the difference between Spartan and Athenian
feeling, but also is quite in accordance with the sagacity
with which Solon may be credited. And how do we know
that there had not been by Solon's time plenty of expe-
riences which would call a legislator's attention to the in-
evitable necessity of revising and amending laws from time
to time; and would force him to devise a method for doing
so, with the greatest convenience and the least danger?
We are quite unacquainted with the details of the history
of any other Greek state [of the time]; we only know that
in the Solonian time, and that immediately preceding, there
had been conflicts between the oligarchy and the com-
mons all over Greece, accompanied by numerous political
revolutions and constitutional changes; all this might be
of service to a reflective observer. Indeed, Athens herself
afforded a striking example of the necessity of changing
existing laws in conformity with circumstances.
It was
not quite thirty years since Drako had made his laws, and
the impossibility of retaining them had already become so
evident, that Solon was obliged to repeal the whole mass,
excepting only a very few. He could not but be aware
that his own laws also would require many changes in
course of time, and in acting as he did he shewed his
wisdom. In the first place, he appointed an interval of
ten years, which was neither very long nor very short,
during which the Athenians were to begin by making
trial of his laws, without being allowed to make any changes
in them. Then, after the expiry of this period of probation,
alterations were to be allowed; but in permitting this, he
provided at the same time that such changes, or even pro-
• Even Zaleukus, the first author of written laws, is not said to have
forbidden changes, but only to have provided, in a way which must be ad-
mitted to have been somewhat rude, that they should not be proposed on
frivolous grounds. See Demosth., катà Тiμокρ., 744, and more in Heyne
Opusc. acad. ii. p. 30.
64
Schömann on the Constitutional History of Athens.
posals for change, should not be permitted, unless the need
for them was generally recognised; and that if proposals
were permitted to be made, they should not be decided
upon without the most careful examination, or without the
existing law being defended against the innovation. Fur-
ther, this act of decision was not to devolve
upon the
popu-
lace, but on a smaller number of men of mature age and
tried experience. All this was most appropriately pro-
vided for by the institution of the Nomothetæ; and if, as
Mr. Grote thinks, Solon did not make any such provision, this
would betray such a want of foresight as we ought not to
lay to the charge of the wisest man of his age. I may add,
to supplement the discussion, that there was a story at
Athens, that Solon himself had once spoken before the
judges, against some one who had proposed an unsuitable
law. The account is given in Demosthenes P; it proves,
at least, that no doubt was felt of the fact that judicial
procedure had been applied to laws in Solon's time, and
may, therefore, pass as a piece of testimony to be added
to the statements of the orators, who designate the law of
Nomothetæ as Solonian, though it was not Solonian in the
form in which they knew it.
§ 6. KLEISTHENES.
(a.) Kleisthenes made only 100 Demes.
I have now disposed of the principal points in which
Mr. Grote's views about the Solonian constitution appeared
to me to require correction; and so I turn to the succeeding
legislator, Kleisthenes; who on the one hand abolished, or
found substitutes for, some of the pre-Solonian institutions
which Solon had allowed to remain; and on the other,
gave greater space, and a freer developement to the in-
stitutions founded by Solon. The statements of the ancients
about Kleisthenes are of a very general and indefinite kind,
so that we have little detailed knowledge of his measures.
We are specially told that he essentially modified the for-
P κατὰ Τιμοκράτους, p. 765.
Kleisthenes.
65
mer divisions of the people, and established in place of the
four ancient Ionic tribes ten new ones, which were named
after native heroes, as their Eponymi. These tribes he re-
divided into smaller sections, or Demes; making each tribe
contain ten, according to the account of Herodotus, so that
there were a hundred in all. For as Valckenaer rightly saw 9,
no other interpretation of the words of Herodotus, 5. 69,
δέκα δὲ καὶ τοῦς δήμους κατένειμε ἐς τὰς φυλάς, is philo-
logically possible. Some writers have made up their minds
to assume a transposition of the words which would be
unprecedented, and in that context utterly pointless, viz.,
that δέκα τοὺς δήμους κατένειμε ἐς τὰς φυλάς, was put for
τοὺς δήμους κατένειμε ἐς τὰς δέκα φυλάς, the latter being
the real meaning, and the expression which ought to have
been used. But this must be set down as simply that
spurious kind of historical criticism, which does not shrink
from twisting the words in the witness's mouth to favour
preconceived opinions. Unhappily, we see Mr. Grote join-
ing in such criticism as this; "I incline," he says", "as
the least difficulty in the case, to construe déka with puλás,
and not with Snμovs." Of the only correct construction,
he says, "such construction of the words, however, is more
than doubtful, while the fact itself is improbable." The
construction can only be thought doubtful, owing to im-
perfect linguistic knowledge; and if the fact itself is really
improbable, only one of two courses remains open to us;
either to pronounce the place corrupt, or to say that He-
rodotus has made a mistake, or at least expressed himself
inaccurately, and given a round number, instead of the ac-
tual number. This seems to be C. F. Hermann's opinion,
The same view is taken by Ross "Demen von Attika," Halle, 1846, p. 3.
Westermann in the Zeitschr. f. d. Alterthümswiss, 1848, p. 37, and in
Pauly's Realencyklop., ii. p. 952. Meier in the Hall. allgemein. Lit. Zeit.,
1844, p. 1386. Dr. Thirlwall, too (vol. ii. p. 82), has the right view. [Grote
has modified the note on this passage of Herodotus in the later editions, by
approving of the suggestion that déka may be taken with kaтéveiµe, in the
sense of déκa μépn, but the places which he quotes hardly bear him out.]
r
[The reference is to the note of vol. iv. p. 177, in the edition of 1849,
now modified as stated in note q above, (vol. iii. p. 113, ed, of 1862).]
* Staatsalterthümer, iii. 12. The
• Vol. iii. p. 113, part ii. c. 31.
later editor agrees with Schömann.
1
F
66
Schömann on the Constitutional History of Athens.
A
and it is unquestionably the most rational, if we are once
convinced that the fact, as Herodotus states it, is improbable
in itself. If we ask for the reasons which make it so,
Mr. Grote mentions the two following:-
First, if the change in the number of Demes had been
so considerable, that a hundred established by Kleisthenes
became at a later time a hundred and seventy-four (for
that is the number alleged), surely some positive testimony
to the change would have been found. But would this
be so, even in case the transition took place not all at once,
but gradually, and not noticeably? I conceive that in that
case, the absence of positive testimony would not seem re-
markable; but Mr. Grote's observation deserves special no-
tice, for the reason that it recognises the critical principle,
that important changes of existing institutions are not
to be readily believed in without positive testimony. Later,
when he speaks of Perikles, we shall have occasion to re-
mark how far he has remained true to his principle.
His second reason is ", that "Kleisthenes would indeed
have a motive to render the amount of citizen population
nearly equal, but no motive to render the number of Demes
equal, in each of the ten tribes." If I understand this
rightly, Mr. Grote thinks that Kleisthenes found the Demes
existing, and that there is no discoverable reason why he
should not have retained unchanged those which he found,
without troubling himself whether there was an equal num-
ber of Demes in each tribe, as long as the number of citizens
in the tribes was tolerably equal. Of course, there can be
no doubt that Kleisthenes found existing Demes, or cantons;
how many there may have been of them we do not know;
but we may assume with certainty, that they were very
unequal in size and in population.
Further, it is clear that in organizing certain adminis-
trative districts as subdivisions of the tribes, Kleisthenes
would have to make them neither too large nor too small;
a certain average area must have appeared to him to be
the right one. Many of the existing cantons might more
or less approach to this area; and those there would be no
u Vol. iii. p. 113.
}
Kleisthenes.
67
reason for changing; but if there were some which were
too large, or, as would be more common, too small, then
the former would have to be divided, several of the latter
amalgamated. This might be done without any violent
change or revolution in existing relations. By uniting
smaller places into a single administrative district, or throw-
ing part of a canton into one, and part into another district,
nothing would be taken from them that they had before,
but only something given them that they had not. It
would not destroy the local institutions, of which Mr. Grote
reminds us, or the festivals or temples of particular locali-
ties. So, if Kleisthenes organized a certain number of ad-
ministrative districts, taking as his pattern for size the
greater number of the existing cantons, and if in doing so
he preferred an equal number for each Phyle to making
them of different numbers, and the round number a hun-
dred to any odd number, there is nothing extraordinary
or incredible in that. And there is this further evidence
for the total of one hundred, that the Eponymi of the
Demes (for they, too, worshipped certain heroes as their
Eponymi) are mentioned under the name of the hundred
C
heroes *.
The hundred newly-organized administrative districts
were called Snμo; a name that was no doubt older, but
was newly applied to mean a district of this nature, and
ten of them made a Phyle. On this it must be further
remarked, that locally contiguous Demes did not by any
means always belong to the same Phyle, but that the Demes
of one and the same Phyle often lay far apart, and were
separated by others, which belonged to other Phyla; a cir-
cumstance which, as far as I know, I was the first to draw
attention to. As regards the gradual increase of the num-
ber from a hundred, to a hundred and seventy-four, I must
confess that I am quite unable to see why it has struck
× Herodian, π. µov. λe§., p. 17, 8. G. H. Sauppe, de demis urbanis Athe-
narum. Programm d. Gymn. Zu Weimar, of 1846, in which all the extant
names of these heroes are collected.
› In a Programme of 1835. Cf. Antiquit. jur. publ. Gr., p. 202, 6. Mr.
Grote remarks the same circumstance, vol. iii. p. 113.
F 2
68 Schömann on the Constitutional History of Athens.
many critics as so inconceivable, and therefore so incredible.
If a Demos had grown considerably in population, and
either a new village had sprung up, or a small one had
become large within its boundary, it might naturally seem
advisable to make two Demes of it. In this way there arose
at a later time out of the Deme Pæania, an Upper and
a Lower Pæania; and so we find Upper Ankyle and Lower
Ankyle, Upper Agryle and Lower Agryle, Upper Pergase
and Lower Pergase, Upper Potamos and Lower Potamos;
in short, a gradual increase of the Demes by about three-
quarters of their former number, is not in the least less
probable, than what others have thought more so, viz.,
that Kleisthenes found the number of a hundred existing,
and increased it to a hundred and seventy-four, or some-
thing like it.
(b.) Kleisthenes made 50 Naukraries.
Z
We saw above that the four ancient Ionic tribes were
supposed to have been divided into three Trittyes each,
every one of these containing four Naukraries; and it is
certain besides, that the ten tribes which dated from
Kleisthenes, at a later time included Trittyes. We have
no further direct testimony about Kleisthenes himself, than
that he divided his tribes into Naukraries as well as Demes,
but in doing so, raised the former number, forty-eight, to
fifty, five to a tribe. Whether he made Trittyes as well,
is not absolutely clear a; it is at least not impossible that
this division of the ten tribes was not introduced till later,
when the Naukraries had ceased to exist.
Its purpose
was connected with military service. But granting that it
originated with Kleisthenes himself, that would be no rea-
z See Demosthenes on the Symmories, p. 184. Esch. Ctes., p. 425.
Plat. Republ., v. p. 475, belongs to this subject too, for he mentions the
Trittyarchs as subordinate commanders, under the Strategi.
a Of course, no one is likely to notice the absurdities of Michael Psellus,
p. 103. Boiss. Κλεισθένης εἰς τριάκοντα μοίρας τὴν ᾿Αττικὴν ἅπασαν διανείμας,
ἐπειδὴ τὸ μὲν αὐτῆς ἐπιθαλαττίδιον ἦν, τὸ δὲ παρὰ τὸ ἄστυ συνέστρωτο, δέκα
μὲν μοίρας τῇ παραλίᾳ συνέτευχε, δέκα δὲ κατέστησεν εἰς τὴν μεσόγειον, δέκα δὲ
ἀστυνόμους ἐποίησε, καὶ τὸ τριτημόριον τριττὺς ὠνόμαστο.
Kleisthenes.
69
b
son for denying to him, as Mr. Grote is inclined to, the
division of his tribes into five Naukraries apiece. We know
from Herodotus, that at the time immediately before the
Persian war, the Athenians possessed only fifty ships, a
number which corresponds exactly with that of the Kleis-
thenian Naukraries, and this coincidence can hardly be
regarded as accidental. Mr. Grote thinks it "hardly pro-
e
bable that there should be two co-existing divisions, one
[the Trittys] representing the third part, the other [the
Naukrary] the fifth part, of the same tribes." But why
should not Kleisthenes have found the division into Nau-
kraries, only with two added, convenient for the purpose
of the naval and cavalry service, if the resources of the
country could only furnish fifty ships, and a hundred horse-
men? Whereas a division by Trittyes might be more suit-
able for the infantry service.
(c.) Kleisthenes admitted no free native Athenians to
the Franchise.
f
Kleisthenes received into his newly-formed ten tribes
a great number of people, who had previously not been
citizens; πολλοὺς γὰρ ἐφυλέτευσε ξένους καὶ δούλους μετ-
oíkovs, are the words as they stand in Aristotle ; but the
right explanation of them is not known with certainty,
and many writers have held the reading to be corrupt, and
proposed emendations. Mr. Grote ¹ holds it to be sound,
and thinks that δοῦλοι μετοίκοι, as opposed to ξένοι μετοίκοι,
means a superior order of slaves, with regard to which he
proceeds to explain further in a note. He thinks that
"there must always have been in Attika a certain number
of intelligent slaves living apart from their masters, in
a state between slavery and freedom k, working partly on con-
dition of a fixed payment to him, partly for themselves,
and perhaps continuing to pass nominally as slaves, after
they had bought their liberty by instalments."
b ii. 277, part ii. c. 10.
e 1. c.
p. 19 and 20.
Polit. iii. 1. 10. b Vol. iii. p. 109 and 10, part ii. c. 31.
OikoÛvтes, omitted by Schömann.
c iv. 89.
a Cf. Case, "Materials, &c.,”
f Cf. Case, "Materials, &c.," p. 17, ff.
χωρὶς
k These words omitted by Schömann.
70 Schömann on the Constitutional History of Athens.
This would make them not strictly speaking a superior
order of slaves, as they are called in the text, but freedmen,
who could only be called slaves by an abuse of language.
I must let this explanation of the passage pass (Meier¹ has
also taken Soûλo as freedmen in this place), though the
expression doûλo μéтoikot still remains doubtful, and is
found in no other passage. But what seems to me far more
doubtful, is a third class of persons that Mr. Grote sets up,
besides both the ¿évoi μeтoíkoι and the freedmen, as having
been received by Kleisthenes into his tribes. These he
describes as native Athenians, who had indeed a certain
inferior franchise, but had been excluded from the old
Phylæ, Phratries, and Gentes, and the rights connected
with them, such as eligibility to seats in the senate, and
to magistracies. Of this class of persons Mr. Grote has in-
formed us above, in an earlier part of his work ", that even
in Solon's time their number was probably considerable;
and he gives it as his opinion in the same place, that they
were discontented with Solon's constitution, because he did
not admit them to full citizenship, and that this made them
the more inclined to attach themselves to Peisistratus. For
they all, without respect of property, belonged to the fourth
class, and therefore, like the Thetes, possessed no other
political right than that of a vote in the general assemblies
of the people. The origin of such a class, we are told,
is to be explained by the numerous immigrations and settle-
ments of foreigners, whose descendants, as they were very
rarely received into the Gentes, Phratries, and Phylæ of
the old citizens, were "native Athenians," but yet, down
¹ De Gentil. Attica, p. 6.
m Vol. ii. p. 332, part ii. c. 11.
11
" [It is a further difficulty, not noticed by Grote, that unless these per-
sons had land, the fourth class was their natural place, and the reform of
Kleisthenes would not directly improve their position. If, on the other
hand, they had the right, confined as a rule strictly to citizens, of holding
land, their ambiguous political position as conceived by Grote becomes
more difficult to believe in than ever.]
0
[In c. 31, Mr. Grote denies them this right for the period before Kleis-
thenes, though in c. 11 he conceded it to them for the period after Solon.
This contradiction probably results from the entire silence of the autho-
rities, which leaves the political position of any such class to rest upon
conjecture.]
Kleisthenes.
71
to Kleisthenes, only as it were half-citizens. I have very
strong doubts of the existence of this class. It is certain
that there were many immigrants, and descendants of im-
migrants, in Attika; but they would always belong simply
to the class of Metæki: that there ever was an intervening
class between Metœki and full citizens, is nothing but a
fancy of Mr. Grote's.
(d.) Difference between Orgeones and Gennetæ.
,
But Mr. Grote rightly pronounces in favour of the view
that Kleisthenes, when he organized his new tribes, left the
old Phratries and Gentes as they were. From this time,
therefore, they ceased to be connected with the Phyla;
new citizens were incorporated in a Phyle, but not in
a Phratry, or Gens; and the same is true in later times
also, though it happened in exceptional cases that a new
citizen was permitted to enter a Phratry, and though
there were ways by which the children of new citizens
could be received, not merely into a Phratry, but even
into a Gens. But this is not the place to discuss these
points; only I will take this opportunity of saying a word
about the Orgeones. Isæus, Mr. Grote says, "uses oprye-
ῶνες as synonymous with γεννῆται.” The expression is
incorrect; it would be more correct to say, that Isæus uses
the word in such a context, that we might be induced to
suppose it to be synonymous with Gennetai. It only occurs
once in that orator, where he is speaking of the introduc-
tion of an adopted son among the Orgeones of his adoptive
father. Everywhere else Isæus, like the other orators,
calls the members of a Gens yevvîτaι; and no rational
ground can be discovered that should have made him ex-
change the right and appropriate term for another in this
passage, and say Orgeones when he meant Gennetai. I con-
ceive the fact of the matter to be, what I have explained it
to be in a commentary on the passage in question. New
citizens, even if they or their descendants were received into
a Phratry, very rarely obtained an entrance into a Gens
P Vol. ii. p. 267, part ii. c. 10.
a Or. ii. 14.
72 Schömann on the Constitutional History of Athens.
of old citizens; but they had, just like the others, their
private sacra; and several families, sprung from the same
ancestor, had the same sacra, inherited from their common
forefather, in common with each other. It was natural that
they should remain in union for this purpose, and such asso-
ciations, in virtue of common sacra, were analogous to the
Gentes of the old citizens; they were not called yévn, be-
cause that name served exclusively to indicate the Gentes
of the old citizens; there was no more appropriate name for
them than Orgeones; and it is obvious that an introduction
among the Orgeones might serve as proof of adoption, just
as well as an introduction among the Gennetai. After this
digression, we return to the institutions of Kleisthenes.
(e.) Institutions connected with the Ten Tribes.
•
It is well known that in connection with the new tribal
division, there took place the augmentation of the Council
from four hundred to five hundred members. In connection
with the same change, there was established the order of the
Prytanies in the Council, according to which the ten tribes,
in a succession determined by lot, held the presidency (Pry-
taneia) during a tenth part of the year, that is, thirty-five
or thirty-six days. There is no tradition of a similar ar-
rangement, consisting in successive presidencies, and the
representation of each of the four tribes by a hundred mem-
bers, in the Solonian council, though the fact cannot be
called improbable in itself". Again, there can be no doubt
that the number of six thousand Heliasts, six hundred from
each tribe, was introduced in or after the time of Kleisthenes;
but whether by himself, or not till later, must remain un-
determined. Further, we know of regular assemblies in
each of the ten Prytanies, one at first, and several at a later
time; here too, however, it is uncertain whether this sys-
tem was enacted by Kleisthenes himself, or not till later.
And lastly, a considerable number of magistrates were taken
according to tribes, one from each. Some of these magis-
The oligarchical council of 400, in the last years of the Peloponnesian
war, also divided itself into Prytanies. Thuc., 8. 70.
Kleisthenes.
73
tracies are certainly older than Kleisthenes' time, so that
his constitution can only have determined their number;
others may be of later origin. Nothing can be made out
with certainty on any of these points, and Mr. Grote has
not undertaken to frame conjectures on them, a reserve
which only demands approval. The highest praise is also
due to the observations which are brought together at the
conclusion of the chapter on Kleistheness, to assist in real-
ising the great importance and deep-reaching effect of the
changes which he introduced: only there is one point on
which I cannot suppress my doubts; that is, whether
Mr. Grote is right in denying Kleisthenes to be the author
of a very important change, viz. the introduction of the lot
instead of the show of hands (Cheirotonia) in the election of
several magistrates, among whom are notably the nine Ar-
chons. The importance of the matter, and the respect which
Mr. Grote's views always demand, may be my excuse, if
I discuss this question in some detail.
(f.) The Lot introduced by Kleisthenes.
It is true that there is no express evidence ascribing the
introduction of the lot to Kleisthenes; but there is the tes-
timony of Herodotus, that as soon as fifteen or sixteen
years after Kleisthenes' legislation, the lot was employed
in the nomination of Archons. Now, as we know of no
one else in this interval to whom the introduction of so
important a change could be ascribed, nor of any particular
event which might have caused its supplementary enact-
ment, it is obviously in accordance with all rules of pro-
bability to regard it as a part of the Kleisthenean legis-
lation. That is what I did ", and most, and the most careful,
enquirers have agreed with me: Mr. Grote,-because the in-
troduction of the lot at such an early time strikes him as
incredible, for reasons which he does not expressly state,
but which may be conjectured, and which I have to discuss
below, begins by endeavouring to invalidate the testimony
of Herodotus. Herodotus designates the Polemarch (one of
• Vol. iii. p. 137.
t vi. 109.
u De comit. Athen. 311.
74
Schömann on the Constitutional History of Athens.
the college of nine Archons) at the battle of Marathon as
selected by lot (kváµw λaxóv). "I cannot but think," says
Mr. Grote, "that in this case he (Herodotus) transfers to the
year 490 B.C. the practice of his own time. The Polemarch,
at the time of the battle of Marathon, was, in a certain sense,
the first Strategus; and the Strategi were never taken by
lot, but always chosen by show of hands, even to the end of
the democracy. It seems impossible to believe that the
Strategi were elected, and that the Polemarch, at the time
when his functions were the same as theirs, was chosen
by lot."
X
Against this view, the following facts must be borne in
mind. Mr. Grote can know nothing of the functions of the
Polemarch at the time of the first Persian war, beyond what
is to be ascertained from Herodotus' account of the battle of
Marathon. Now he says that at that time the Polemarch
had an equal vote in the council of war with the Strategi,
all ten of whom were then with the army. Therefore, if the
votes of the generals were divided, the Polemarch had the
casting-vote. The supreme command went by daily ro-
tation among the Strategi, and in this connection there
is no mention of the Polemarch; but in the battle, the
Polemarch had the command of the right wing. That is all.
It does not go to prove that the Polemarch's functions were
the same as those of the Strategi, but only that he shared
some of their functions with them. Probably he never had
the supreme command, and when Mr. Grote, in another part
of his work, calls him the president of the ten Strategi,
this is more than the narrative of Herodotus entitles him
to say; the presidency seems rather to have gone by ro-
tation among the ten Strategi. Who was president at the
discussion about the battle of Marathon cannot be deter-
mined from Herodotus' account; but Miltiades appears
clearly as the principal person. It was from him that the
proposal to give battle emanated; four of the Strategi had
assented, five dissented; this is what is conveyed by He-
rodotus' words, ἐνίκα ἡ χείρων τῶν γνωμέων. Then the
y Ib. 103.
▾ Vol. iii. p. 126, note, part ii. c. 31.
z Ib. 110.
x vi. 109.
a Vol. iv. p. 33, part ii. c. 44.
Kleisthenes.
75
Polemarch, as the last to vote, had to give the casting-
vote; that is why Miltiades turns to him with a special
appeal. In the battle, the Polemarch has the leading of
the left wing, but yet is always under the command of one
of the Strategi. Now are these two things, the vote in the
council of war, and the leading of the right wing, really of
such importance, that it ought to be incredible that they
were entrusted to an officer taken by lot, and not, like the
Strategi, by a show of hands? In my judgment, it could
only seem so, if, on the one hand, the functions of the
Polemarch were such as to require tactical and military
knowledge, which could only be expected in persons spe-
cially trained to it; and if, on the other hand, the lot ad-
mitted to the office of Polemarch even persons who could
not be credited with the necessary aptitudes. But I con-
ceive that in this case neither condition applies.
The Archons, of whom the Polemarch was one, were
taken by lot, not from the whole mass of the people, not
even from all three higher property - classes, but exclu-
sively from the Pentakosiomedimni; that is, from among the
wealthiest and most cultivated persons. Military exercises
formed part of the public training; tactics were simple,
and strategy was in its infancy. Hence the Athenians
might expect without any absurdity, that the capacity
required for the functions stated above as the Polemarch's
would hardly be absent in any of the class, who were en-
titled to offer themselves at the sortition. Indeed, such
a presumption was not less, but in fact rather more justi-
fiable than that in virtue of which, at a later time, every
citizen of good character was admitted to sortition, not
merely for the office of Archon, but for many others; al-
though some of these offices were such, that their ordinary
duties could not be discharged without some knowledge
of law and of business. But there was simply the con-
fidence, that any ordinary citizen who offered himself for
sortition, would possess the requisite capacity; and that
confidence was obviously somewhat more justifiable in the
older times of which we are now treating, than it was later.
76
Schömann on the Constitutional History of Athens.
So much for Mr. Grote's first argument. Now let us con-
sider what he says next ¹.
"Herodotus seems to have conceived the choice of magis-
trates by lot, as being of the essence of a democracy, (Hdt.,
iii. 80)." Certainly it seems to be so; for in the place
referred to, Herodotus makes Otanes say, on the occasion
of the deliberation of the Persians as to the measures to
be adopted after the murder of the pretended Smerdis, that
wherever there is popular rule, the offices of government
are filled up by lot. No doubt we are to fill up Mr. Grote's
reasoning in this way; Herodotus knew that there was
a democracy at Athens at the time of the first Persian war;
he regarded sortition of magistrates as belonging to the
essence of democracy; consequently, he imagined that offi-
cials were taken by lot even at Athens, as early as in the time
of the first Persian war. In other words; Herodotus had
no knowledge of the sortition of magistrates at Athens at
the time in question, but only assumed it ex conjectura.
And yet Herodotus surely knew, that even in a democracy
all offices were not filled up by lot, though some, indeed
the majority, were; and Mr. Grote will no doubt admit that
in a context like that of iii. 80, precision of terms would
not be important to him, and that he might make Otanes
say what he does, even if it were not correct without ex-
ception. Besides, it was not unknown to Herodotus, that
even at Athens in the time of the first Persian war, some
offices were filled up by election, and not all by lot; and
he expressly says of Miltiades, στρατηγὸς ἀπεδέχθη αἱρεθεὶς
ὑπὸ τοῦ δήμου. Was he likely to contrast the Polemarch
as taken by lot with the general as elected, merely in order
to offer a conjecture, the idleness of which was to be dis-
covered by the acumen of a critic more than two thousand
years after? Let us hear how Mr. Grote goes on.
"Plutarch also (Perikles, c. 9) seems to have conceived
the choice of Archons by lot as a very ancient institution
of Athens; nevertheless, it results from the first chapter
of his life of Aristeides, an obscure chapter, in which
b Vol. iii. p. 126, note, c. 31.
c vi. 104.
Kleisthenes.
77
conflicting authorities are mentioned without being well
discriminated, that Aristeides was chosen Archon by the
people, not drawn by lot; an additional reason for believing
this is, that he was Archon in the year following the battle
of Marathon, at which he had been one of the ten generals.
Idomeneus distinctly affirmed this to be the fact, où кvα-
μευτὸν ἀλλ᾿ ἑλομένων ᾿Αθηναίων, (Plutarch, Arist. c. 1).”
Thus Mr. Grote admits that Plutarch alleges contradictory
authorities, without deciding clearly for one or the other e
and yet considers the result of these allegations to be, that
Aristeides received the office of Archon not by lot, but by
election. This being so, he must have discovered a criterion
which enabled him to decide what Plutarch, according to
Mr. Grote's own confession, left undecided. Let us there-
fore examine the references and authorities in question
a little more closely.
On the one side we find Demetrius of Phaleron, a man
of whom we know that he had accurately studied the his-
tory and antiquities of the state, at the head of which he
was for ten years, and that he wrote several works of re-
pute on the subject. Now he expressly says, that Aris-
teides became Archon by lot, at a time when only Pen-
takosiomedimni could attain to the office; and he alleges
this very fact as a proof that Aristeides could not have been
so poor as many thought.
On the other side there is Idomeneus, a writer not only
considerably later than Demetrius, but also one of a school
which has not the reputation of having spent much pains
on searching and precise enquiries. That is to say, he was
an Epicurean; there are mentioned as his writings a book
about the Socratics, one about Samothrace (only in Suidas),
and one about Trojan history. What he said of Aristeides
d Vide note below.
e ["Ohne recht zwischen ihnen zu entscheiden," in allusion to the
phrase by which Schömann has above translated Grote's words, "without
being well discriminated." Schömann's translation seems incorrect; Grote
must have meant that Plutarch did not clearly distinguish what was one
author's view, from what was another's; if so, Schömann's argument from
Grote's admission is destroyed; but his examination of the passage in
Plutarch holds good.]
78 Schömann on the Constitutional History of Athens.
could in any case only occur in a passing observation.
According to Sintenis' careful judgment, the specimens
of his writing which occur in Plutarch and Athenæus are
such "ut gravem quidem ac fide dignum scriptorem minime
deceant." And Luzac's judgment on him is equally un-
favourable. Therefore, setting authority against authority,
there can be no doubt which of the two deserves most credit.
So if in this case the worse authority is to be preferred to
the better, it must be strengthened by overwhelming ar-
guments. What arguments has Mr. Grote? Besides his
preconceived idea that the introduction of the lot could
not possibly be so old, only this one; that Aristeides filled
the office of Archon in the year after the battle of Marathon,
in which he himself was one of the ten generals. He seems
to think that this can only be explained, by supposing that
the office was bestowed on him in consequence of his merit
as displayed in the battle, and consequently not by the
chance of the lot, but by popular election. And this is
pretty much the conclusion which Plutarch seems to have
reached; only his words indicate at the same time that he
conceived of this election as an exception to the rule of
sortition, made in favour of Aristeides. He says, πάνυ
πιθανόν ἐστιν ἐπὶ δόξῃ τοσαύτῃ καὶ κατορθώμασι τηλικούτοις
ἀξιωθῆναι δι᾽ ἀρετήν, ἧς διὰ πλοῦτον ἐτύγχανον οἱ λαγχά-
νοντες. So firmly was he convinced that the lot was the
rule even at that time.
In the life of Perikles, he says it was introduced ẻ πα-
Macoû, that is, long before Perikles, which quite suits the
time of Kleisthenes, but not the times after the battle of
Platea, to which Mr. Grote is inclined to transfer its intro-
duction. For the interval between the battle of Platæa and
Perikles' first appearance as a statesman was little more than
ten years. Again, is it true that the circumstance of Aris-
teides' Archonship in the year after the battle of Marathon,
is only capable of being explained by its having been be-
stowed upon him as a reward for his services in that battle?
Post hoc, ergo propter hoc, is usually adduced as a specimen
of fallacious inference.
f Plut. Perikles, p. 320.
8 Lect. Att., p. 114.
Kleisthenes.
79
k
Lastly, Mr. Groteh refers us to Isokrates, according to
whom, he says, the constitution of Kleisthenes contained
the following points: "1. a high pecuniary qualification of
eligibility for individual offices; 2. Election to these offices
by all the citizens, and accountability to the same after
office; 3. No employment of the lot." Now it is true that
Isokrates says in that place that the constitution of Athens
in more ancient times contained these points; and he has
above indicated Solon as the founder, and Kleisthenes as
the restorer, of that constitution; but to attempt to infer
from this that in each particular point he was alluding
equally to both legislators, would be rather imprudent.
And, granting that he was doing so, it is well enough
known how we are to estimate the accuracy of the orators
in historical assertions of this kind. Mr. Grote, at least,
knows it quite well, and of Isokrates in particular he says
in an Appendix to the second volume of his work, that he
must be employed with caution; and he says of the Areopa-
giticus m in particular, that the picture which it gives of the
earlier constitution is inaccurate, and to a great degree ideal.
So I may surely say with justice against him, what he has
elsewhere said with injustice against me, "this admission
seems to me fatal to the cogency of his proof.
1
""
Not to omit any argument which Mr. Grote relies upon, we
must here look for a moment at what he brings forward in
his text¹, shortly before the argument which we have so far
been examining, which is added in a note. He is speaking
of the law of Aristeides, by which, shortly after the battle of
Platea, the previous exclusion of the fourth class was re-
moved, and eligibility to offices was granted to all citizens,
without distinction of property. Plutarch's notice of this
point runs thus°: γράφει ψήφισμα, κοινὴν εἶναι τὴν πολι-
τείαν καὶ τοὺς ἄρχοντας ἐξ ᾿Αθηναίων πάντων αἱρεῖσθαι.
Mr. Grote observes, "No mention is made of the lot in this
important statement of Plutarch, which appears to me every
way worthy of credit, and which teaches us, that down to
h iii. 126 n. i Isokr., Areopag., p. 144 (Sectt., 21—23). k Sec. 16.
1 The Appendix alluded to does not appear in the second edition. m Vol.
iv. p. 106, part ii. c. 46.
iii. 125, c. 31.
Aristeides, c. 22.
80 Schömann on the Constitutional History of Athens.
the invasion of Xerxes, not only had the exclusive prin-
ciple of the Solonian law of qualification continued in force
(whereby the first three classes on the census were alone
admitted to all individual offices, and the fourth, or Thetic
class, excluded), but also the Archons had hitherto been
elected by the citizens, not taken by lot." The first of
these facts—restriction of eligibility to the three higher
classes — the place certainly does teach us; but it only
teaches us the second (choice by majority of votes, and
not by the lot), if the word aipeîobaι is taken as a proof
of it. Ought Plutarch to have said λnрoûσlaι? Could
he use that word, seeing that it was always the case that
only some, not all, of the magistrates were taken by lot?
Or was it necessary for him to express both modes of choice
distinctly side by side, as by writing ἢ κλήρῳ ἢ χειροτονίᾳ
aipeîolar? I conceive that Plutarch did right in adopting
the general expression; but Mr. Grote seems to deny to
Plutarch below, in the note discussed just now, what he
here ascribes to him. Here he represents him as distinctly
saying that election, and not lot, was in use down to the
time after Platea; while there he is described as not being
able to decide between different authorities P.
Hence it seems sufficiently established that all Mr. Grote's
attempts to support his view by evidence, and to invalidate
assertions to the contrary, are completely unsuccessful; and
he himself would undoubtedly have recognised the weakness
of his reasoning, if his judgment had not been perverted by
the preconceived opinion, that sortition for magistracies was
impossible at the time of Kleisthenes. The lot appeared to
him to be an institution which, of necessity, could only be
introduced at a period of intensified democracy, such as we
see, at the earliest, some years after the battle of Platæa;
he ascribes it to Perikles, not to Kleisthenes. "We have,"
he says, "no positive information that it was Perikles 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 this
"must" is to supply the lack of positive information. The
a iv. 101, part ii. c. 46.
P But see note e, p. 77, sup.
Kleisthenes.
81
I'
question has, however, another and a very different side, and
if we consider that other side, the introduction of the lot by
Kleisthenes will no longer seem so incredible. We know
from Aristotle that the lot had been introduced, among
other purposes, with the object of putting a stop to elec-
tioneering intrigues; this was the case, for instance, at
Heræa, because the elections had before always resulted in
favour of the wire-pullers. Now we also know that after
the fall of the Peisistratid tyranny, Athens was distracted
by the most violent party struggles; and that the party
headed by Isagoras carried on a conflict, with all the means
in its power, against that of which Kleisthenes was the
leader. Obviously, when this was going on, there must
have been plenty of all sorts of electioneering factions.
Isagoras himself appears as Archon for 507, clearly be-
cause his faction secured the office for him. Such intrigues
Kleisthenes thought it his duty to provide against. There-
fore he abolished popular elections, and introduced selection
by lot for a great part of the offices; believing that this
would secure appointments in most cases no worse, and in
many much better, than those made by the votes of a popu-
lace misled by faction and intrigue. I should have thought
that even in England there had been enough opportunity to
judge of the value of this kind of popular election. At least,
here in Germany we have had experience which would
justify us in concluding, that it was impossible to make
worse appointments by the chance of the lot than by the
votes of the masses, guided by demagogues and party-
leaders. Moreover, it must be borne in mind that, ac-
cording to the Kleisthenean constitution, even if it intro-
duced the lot, still the number of those among whom the
choice was made continued to be restricted to citizens of
the three higher classes; and in the case of the highest
offices, to the Pentakosiomedimni. Besides, new citizens
were excluded at least from all offices for which citizenship
ÈK Tρiyovias was requisite. Landed property, too, may
have been a condition for many magistracies. Lastly, the
poorer citizens no doubt were glad to exclude themselves,
* Pol., v. 3. 9.
G
82 Schömann on the Constitutional History of Athens.
because the offices were unpaid; but they enjoyed the cer-
tainty that if they did stand, they could not be thrown
into the background, and set aside by richer or more aris-
tocratic candidates.
(g.) Areopagus in the time of Kleisthenes.
t
About the Areopagus, its position and importance in the
time of Kleisthenes, in comparison with what it was meant
to be under Solon's constitution, Mr. Grote has some ex-
cellent observations, to which I venture to make a few
additions. According to Solon's intention, the Areopagus
was to be the superintendent of the whole state, and the
guardian of the laws, as Plutarch expresses it. The ex-
pression is extremely general, and tells us nothing in detail
of the functions assigned to the Areopagus, and therefore
we cannot take it ill of Mr. Grote that he uses equally
general language ". All that we read in the Areopagiticus
of Isokrates, about it and its activity in earlier times, relates.
only to its superintendence of the public discipline, not
merely that of the youths, but also that of grown-up per-
sons. It does not in any way touch upon its relations with
the organs of public power, the magistrates and the as-
sembly. We might be tempted to ascribe to it an im-
portant part, especially in the Dokimasy and the Euthyne
of magistrates, and to regard the later procedure, in which
it has no share at all, as one of the innovations which were
bound up with the limitations on the Areopagus effected
by Ephialtes; a conjecture which loses nothing, at least
of its probability, from not being supported by express
evidence. For its relation to the popular assembly, how-
ever, there is a notice about the Nomophylakes preserved
from Philochorus, which affords a fixed point, to which
further inference may be attached with some certainty.
Philochorus connects the establishment of the Nomophy-
lakes with the lowering of the position of the Areopagus;
they were instituted, he says, when Ephialtes left to it
t
iii. 128, c. 31. * Solon, c. 19. u ii. 323, c. 11.
× In the
fragment of the rhetorical Lexicon that follows Photius, p. 674. Engl.
edition.
Kleisthenes.
83
uncurtailed nothing but the criminal jurisdiction in capital
cases, which it had before. From this statement we must
infer, that the functions which were now transferred to the
Nomophylakes had previously belonged to the Areopagus.
And among those functions is this in particular, that they
had their seat beside the Proedri, both in the council and
in the popular assembly, and could make a protest if any-
thing injurious to the state was being done; KWλÚOVTES Tà
ἀσύμφορα τῇ πόλει πράττειν. This can have no other mean-
ing, than that they had the right to interpose their veto,
and by doing so, either to prevent a proposal in the council
or the assembly, which they thought mischievous, from
being put to the vote, or to hinder its execution if it was
actually carried. At least, the former power may be as-
sumed with certainty. Now, if Solon gave the senate and
the popular assembly the right of making decrees with
reference to public affairs, it cannot be doubted that he
would also give the Areopagus the power of superintending
the exercise of this right.
Plutarch says that Solon intended by means of the two
councils, the Areopagus and the Four Hundred, to provide
the state as it were with two anchors, to prevent the ship
of the commonwealth from being driven about by the waves.
He probably found the metaphor in Solon's writings; the
waves are the passions of the populace, the two anchors
answer to the regulative and restrictive powers of the two
senates. Now Mr. Grote observes with undoubted truth,
that in the time of Kleisthenes the Areopagus must neces-
sarily have consisted in great part of members who were
hostile and odious to Kleisthenes and his party. The reason
he gives is, that by Solon's enactment the Areopagus was
composed of past Archons, and under the tyranny no one
was elected Archon who was not a creature of the Peisis-
tratids. On this account, "its influence must have been
sensibly lessened by the change of party, until it came
iii. 128.
z Schömann, “Die nunmehr eingetretene Staatsveränderung," which
perhaps represents what Grote must have meant, i.e. the predominance
of a new and opposed party in the government.
G 2
84 Schömann on the Constitutional History of Athens.
to be gradually filled by fresh Archons, springing from the
bosom of the Kleisthenean constitution."
He certainly does not mean that Kleisthenes passed de-
finite laws in restriction of the power which Solon had
assigned to the Areopagus. He only means, that though
the legal rights of the Areopagus remained as before, yet
it did not dare under the altered conditions to make use
of them on the side of the party to which it really belonged,
and so was inactive and acquiesced in much that was re-
pugnant to it, because it could not change what was being
done. There is no objection to this; but Mr. Grote goes on:
"Now during this important interval, the new-modelled
Senate of five hundred and the popular assembly, stepped
into that ascendancy which they never afterwards lost.
From the time of Kleisthenes forward, the Areopagites
cease to be the chief and prominent power in the state."
This sounds as if we really had knowledge of a time at
which it could claim such a predicate. As far as I am
aware, we have no such knowledge. Aristotle says a the
Areopagus gained a high reputation at the time of the
Persian war, and so came to impart to the state a stricter
(ovvTOVWτéρav, i.e. no doubt a more strictly law-abiding)
character; and all that we know of it from other sources
is limited to its superintending, restrictive and censorial
powers. Legislative power, on the contrary, never belonged
to it; and even as regards the former kind, we have no
information as to the means it had at command, in order,
for instance, to enforce its veto in the popular assembly.
We are safe in assuming that its power in this respect
could only be effective, if opinion was divided in the as-
sembly itself; and that it was powerless against the unani-
mous will of that body, and would have been just as much
so, if Solon's laws had continued in unbroken force, and
if there had been no interval of Peisistratid monarchy,
and of filling-up the Areopagus with the creatures of the
tyrants.
νωτι
a Pol., v. 4. 8.
Kleisthenes.
85
(h.) Ostracism abused by the Athenians.
We have still to say a few words on the ostracism, which
Mr. Grote, in agreement with the view now pretty gene-
rally acknowledged to be correct, represents as among the
reforms of Kleisthenes. In treating it, he explains pro-
foundly and luminously the peculiar significance of the in-
stitution, and gives a detailed exposition of the conditions
present in free states like those of Greek antiquity, whose
existence was essentially dependent on the voluntary obe-
dience of the citizens to the laws and the government. In
such states, it might prove easy for influential men to raise
a party, by whose help they might set themselves above the
laws. No more lenient and rational means could be dis-
covered of averting any such danger, and avoiding the
distracting party-conflicts otherwise inevitable, than that
of removing betimes from the state, while it could still
be done without an armed resistance, for a certain interval,
those from whom such a danger might be apprehended.
By this they themselves lost nothing but the chance of
becoming more powerful than they ought, while the state
was freed from the fear they inspired. This was unques-
tionably the idea which Kleisthenes, and the lawgivers of
other states in which there were similar institutions, had
in their minds in devising them; and it has not been mis-
apprehended by careful and acute enquirers. Mr. Grote
remarks with disapproval, that many writers have founded
upon the ostracism accusations against the Athenians of
envy, injustice, and ill-treatment of their superior men. But
the accusation has not been so much directed against the
ostracism itself in its original conception, as against the
application which the Athenians made of it. Those who
made it, imagined that the evidence of the ancients, and
the instances in point, shewed that the people were often
moved to inflict ostracism, not by real danger or reasonable
fear, but rather by envy and repugnance. And in fact it
d
b iii. 128.
c iii. 137.
d [Grote enumerates the cases,
and comments on some of them, iii. 137, 8.]
86 Schömann on the Constitutional History of Athens.
would hardly be possible to oppose this view, however much
inclined we may be to view the actions of the Athenian
Demes in every case in the best light.
(i.) Form of procedure in Ostracism.
The form of procedure in ostracism is quite correctly
described by Mr. Grote. In particular, he is right in as-
suming that the condition requisite for a valid decree of
banishment is to be understood as the unanimity of 6,000
votes; not merely a majority, whether relative or absolute,
out of 6,000 votes. The latter, indeed, is what Plutarch
states; but the other view, which Philochorus affirmed,
is supported by the analogy of the procedure in the case
of other votes of a similar kind; and by the circumstance,
that when the assembly had carried a decree that a vote
of ostracism should be taken, it was not proceeded with
at once, but a later day was fixed, on which the people
was to assemble for the purpose. So, if the assembly on
that day was not numerous enough for a majority of 6,000
votes to result, that was a proof that the matter did not
seem important enough to the people, and the voting led
to nothing. If the matter was really thought serious by
the people, of course they would come in great numbers,
and a majority of 6,000 votes was, in that case, not too
much to require. A similar procedure took place with
all decrees that belonged to the category of privilegia. In
these cases, too, there were separate assemblies: first, one
in which the proposal was only announced, and either
admitted or disallowed; then a second one, in which it
was decided whether what was proposed should be granted
or refused. This is particularly plain in the speech against
Neæra, p. 1375 f.
e
e iii. 133.
* As regards the ostracism, Böckh, who before decided for Plutarch, now
(in the second edition of the Staatshaushaltung, i. p. 325) declares for Philo-
chorus. I myself, too, withdraw the doubts which I expressed before (de
Comitt. Ath., p. 245, 6) more distinctly than I ventured to in the Antiq.
jur. publ. Græc., p. 233.
7
Changes between Kleisthenes and Perikles.
(k.) Kleisthenes' Reforms not before 507 B.c.
as
Before leaving the subject of Kleisthenes, there is one
minor matter to speak of. The year in which the intro-
duction of his constitution is to be placed cannot be fixed
with certainty; Mr. Grote, if we may infer from a passing
remark, seems to assume 509. But that is a little too
early. As the head of the opposite party appears h
Archon in Olymp. 68. 1 (B.c. 508-7), it must be supposed
that by that time the party of Kleisthenes had not
obtained the predominance which it afterwards obtained,
according to Herodotusi, chiefly in consequence of the
Kleisthenean tribal changes, and which reduced Isagoras
to apply for help to King Kleomenes and the Spartans.
They compelled Kleisthenes to leave the city; and it might
be assumed that this was the time at which Isagoras, whose
party was again decidedly predominant, was elected Archon.
But when we read in Herodotusk, how the Senate of that
date offered a successful resistance to Isagoras' attempt to
dissolve it; and how Isagoras himself, with his champion
Kleomenes, was compelled to retire to the Akropolis, and
after a short siege, to capitulate and leave the country, we
shall not think his election as Archon under those circum-
stances very probable. So, if the Archonship of Isagoras
preceded the reforms of Kleisthenes, they cannot have taken
place before 507. Besides, they were certainly not all in-
troduced at once, but gradually; many of them not till after
Kleisthenes' return from the brief absence to which Kleo-
menes had forced him.
8 iii. 128.
§ 7. CHANGES BETWEEN KLEISTHENES AND PERIKLES.
We hear of no constitutional changes in the interval
between Kleisthenes and Perikles, excepting that proposed
by Aristeides soon after Platæa, which made the offices of
state, with some few exceptions, thenceforth accessible to
all citizens not specially disfranchised, without distinction
i v. 69.
87
¹ Böckh, C. I. ii. 318.
Ib., c. 72.
GE
88 Schömann on the Constitutional History of Athens.
of property-classes. The causes which made this extension
of the people's rights advisable or necessary at that time are
not hard to see, and are well expounded by Mr. Grote ¹.
Of course, he repeats at this point that the offices were then
filled up by election and not by lot, and that the lot was
introduced some time later; but I think I have sufficiently
shewn above, that there is no cogency in the arguments he
has brought forward against the introduction of the lot
as early as by Kleisthenes' constitution. But I readily
assent to the other conjecture, that many offices, such as
those of Astynomi, Agoranomi, Metronomi, Sitophylakes,
if not first instituted, were at least extended, that is, divided
among several persons at this time; that is, after The-
mistokles had made Athens essentially a maritime state,
and a second town was founded in Peiræus, in which part
of these magistrates had to act.
§ 8. CHANGES UNDER PERIKLES.
(a.) List of Changes mentioned by the Ancients, and
of those vouched for by Grote.
We hear much more, not indeed from the ancients,
but from Mr. Grote, of the very important constitutional
changes introduced during the time of Perikles. All that
the ancients tell us of this, is limited to the diminution
of the functions of the Areopagus, and the transference
of part of them to the newly-instituted authority, the Nomo-
phylakes, and to the introduction of pay for the assembly
and the Dikasteries, with which we may connect the lar-
gesses in money called Theorika. This and the judicial pay
are the only things, the introduction of which is expressly
ascribed to Perikles himself; that of pay for the assembly
at least falls in his time, and may have been brought about
by him, though his name is not mentioned in connection
with it; the curtailing of the Areopagus was effected on the
proposal of Ephialtes, but acting in concert with Perikles.
This, then, is what the ancients tell us.
Mr. Grote, on the other hand, thinks it certain that it
1 iv. 32, c. 44.
Perikles.
89
was Perikles who first limited the magistrates' authority,
by separating from their administrative functions the judicial
ones which were previously bound up with them, and leav-
ing them only the right of inflicting a small fine". That
is, therefore, he was the first to make the magistrates
mere agents of "instruction," instead of judges, and to
introduce the distinction between Jus and Judicium. At
this time, too, Mr. Grote tells us, public arbitrators were
first appointed, who had to decide as judges of first in-
stance in private suits; and at this time the procedure, in
bringing in new and repealing old laws, was regulated
by the ordinance of Nomothetæ, which withdrew the de-
cision upon laws from the public assembly, and transferred
it to a smaller body of sworn citizens. Again, it was
at this time that the γραφὴ παρανόμων was introduced;
in other words, the right given to every citizen to attack
as illegal, and prosecute in judicial form, a proposed law
or psephism, the result being that the law or psephism im-
peached was suspended till the decision of the court, and
if the verdict was unfavourable, was annulled P. All this,
Mr. Grote vouches for.
(b.) Not improbable that these latter Institutions were
older than Perikles.
Perikles and his administration are often enough dis-
cussed by the ancients, and besides a number of passages
in which, as occasion offers, more or less detailed mention
is made of them, we have a biography of Perikles at full
length by Plutarch. But neither in the occasional refer-
ences, nor in Plutarch, is a single syllable said of any of
these important enactments, which Mr. Grote feels justi-
fied in ascribing to him with such confidence. It seems
to me that this necessarily leads to the conclusion, that the
ancients knew nothing of them. The great importance of
the ordinances forbids us to suppose that they could have
been passed over in silence, whether on purpose, or by
m Vol. iv. 111 and 123, c. 46.
were first appointed under Perikles].
n iv. 102, [Grote does not say they
。 iv. 116.
P iv. 118.
90 Schömann on the Constitutional History of Athens.
chance, if the ancients had known of them; and it could
not be thought more probable that a malicious chance
should have deprived us of just those passages in which
they were mentioned. Mr. Grote himself, as we saw above
in treating of the Kleisthenean Demes, admits the principle
that important changes ought not to be believed in without
positive evidence; here there is no positive evidence; what
is to supply its place? The internal evidence, from the
nature of the case, and the impossibility of the opposite
opinion.
Mr. Grote says that the opinion which represents "the
popular Dikasteries, and the Nomothetæ, as institutions
of Solon, and as merely supplied with pay by Perikles,
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." Of course, if the
notion really was that those institutions were not merely
founded by Solon's legislation, but had the same extent
of activity from the very beginning as we find them with
in the Periklean age, Mr. Grote might well dispute it.
But who ever entertained such a notion? The Heliæa
was a select committee of jurors, for the purpose of sitting
as a court of highest instance in public and private cases,
and assembled for this purpose sometimes in larger, and
sometimes in smaller sections. Does Mr. Grote really think
that such a body could not possibly exist, without forthwith
assuming the position which it afterwards came to hold in
consequence of altered conditions? I have already dis-
cussed the subject in sufficient detail, and mentioned the
courts which existed over and above the Heliæa; viz., the
Areopagus with more extensive powers, the judges of first
instance, the cantonal judges, and the Diætetæ, so that
I need only refer to what has been said. For as for Mr.
Grote's transference of the establishment of Diætetæ to
the age of Perikles, it is simply an arbitrary assertion,
which we could only be induced to controvert by argu-
ments, if he had himself supported it by any. As regards
the Nomothetæ, Mr. Grote himself admits
[Does Grote make it? see n. n. p. 89, sup.]
that this in-
q iv. 123.
Ⓡ iv. 116.
Perikles.
91
•
stitution was an important limitation on the legislative
power of the general assembly of the people. "The Ec-
clesia
became incompetent either to pass a new
law, or to repeal a law already in existence." He fur-
ther describes it as a wise provision, that legislation was
not left to the excitable populace, not bound by an oath,
but was reserved for a committee of sworn citizens, which
was sufficiently numerous to be a complete representation
of the whole, but because of the age of its members, their
oath, and the prescribed judicial procedure, was better
suited for careful, comprehensive, and conscientious de-
liberation. But according to this, he should not have as-
cribed the institution to the last elaboration and develop-
ment of the democracy, which it was rather intended to
counteract. In the stage of fully-developed democracy,
as we see it in the times of Demosthenes, we find the or-
dinance of the Nomothetæ for this very reason, not indeed
abolished, but continually circumvented and violated, as
a restriction on popular power. And then there found its
way in the form of legislation, which Mr. Grote must as-
cribe to the pre-Periklean, i.e. less-developed democracy; un-
less he prefers either to say that before Perikles there were
no new laws passed, and no old ones repealed, or to point
out some other form in which it could have been done.
The yрapn πaρavóμwv is denied to the pre-Periklean age,
with as little justice as the Nomotheta. It is a second
measure of precaution against democratic temerity. If the
official authorities for the purpose had neglected, or had
failed to hinder an illegal and mischievous decree, there
was still this procedure, which opened a method to well-
affected citizens, of subjecting it to the judgment of a
smaller and more prudent assembly of sworn members,
and possibly of annulling it.
On the organization of the Heliæa, Mr. Grote says,
"I do not here mean to affirm that there never was any
trial by the people before the time of Perikles and Ephial-
tes. I doubt not that before their time the numerous
judicial assembly called Heliæa, pronounced upon charges
t iv. 103.
92 Schömann on the Constitutional History of Athens.
cannot be
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
conceived without an assured remuneration.” The for-
mation of sections out of the Heliastic body, which is in
this passage admitted as an exception, and for particular
cases, ought properly to be regarded as the rule. Even
before there were six thousand Heliasts, there could hardly
be a reason for convoking the whole body in all ordinary
cases; and if so, a fixed division into sections, or Dikas-
teries as the Athenians called them, was far more probable,
than that on each occasion the number required should
be taken by lot for that turn. But as in course of time
the demand for the performance of Heliastic functions went
on increasing, it was necessary also to increase their number
to a corresponding extent. It is not quite clear whether
the Heliasts were only taken from among those who offered
themselves, or from among all citizens who possessed the
legal qualifications, i.e. were over thirty, and were not
disfranchised. If the former was the case, then as long
as there was no pay, only the wealthier citizens would offer
themselves, and to attract the poorer as well, it was neces-
sary to offer indemnification, for the sacrifice in time lost
from their business; if the latter was the case, it was the
more right and reasonable to give them compensation for
a service from which they might not withdraw, especially
from the time when this service came to be so frequently
demanded.
Of course, we are not to conceive the sittings of the He-
liastic courts as being so frequent, and consisting of so
many members, as might appear from Aristophanes' es-
timate of the judicial pay". Omitting the festivals, and
Wasps, 660 ff.
u
Perikles.
93
other days on which no courts could be held, there would
hardly be sittings of every court on every court-day. In
many cases whole sections of five hundred members did
not sit, but only fractions of sections. A "
A "Phasis," for
instance, was tried according to Pollux before 400 judges,
if it concerned an amount of more than 1,000 drachmæ,
but before 200, if the amount was less; and thus we must
assume that in all cases the number of judges varied with
the importance of the case. In more important matters,
indeed, we even find several sections united. Now a great
increase of law-business dates particularly from the time
at which the Athenians brought the litigation of the sub-
ject allies before their own city courts; a measure which,
like the introduction of judicial pay, belongs to the Peri-
klean age; and if any one ascribes also to that age the
number of 6,000 altogether, 500 in each section, and 1,000
substitutes, there is no objection to be made. So much we
may grant to Mr. Grote. But to go further, and ascribe
the whole organization of the Heliæa to no earlier time
than this, and even to assume, as Mr. Grote does, an entire
revolution of the judicial system in it, is not made neces-
sary or justifiable by anything we know of.
(c.) Judicial pay at first one Obol.
The amount of the judicial pay was certainly three obols
at the time of the Peloponnesian war and later; at an
earlier time it seems to have been only one obol, as Böckh
has made extremely probable, even if he has not proved
it to demonstration. Mr. Grote makes some objections
to his proof, but merely on the ground that he thought
one obolus too small a compensation for the time which
the judge spent on his duty: and it is true that an obol
was not as much as one of the common people could earn
in a day. So, if a man of this class was compelled to be-
come a Heliast even against his will, then his pay was not
an adequate compensation. But it is anything but clear
whether there was any such compulsion, as I pointed out
* iv. 121, c. 46.
94 Schömann on the Constitutional History of Athens.
above; and in the Wasps of Aristophanes the Heliast's
function appears all through as voluntary and self-sought.
An obolus might be sufficient to make those people inclined
to perform the function, to whom the small receipt was
not an unwelcome assistance, i.e. not the very poor, but
the less rich. Later, when three obols came to be paid, it
was especially the poor who came forward for the sortition.
(d.) Δικαὶ ἀπὸ συμβόλων included all Law-suits carried
on by Allies at Athens.
As I alluded above to the litigation of the allies which
was brought before the Athenian courts, and as Mr. Grote y
too treats of it at length, a brief observation upon it may
be inserted here. Mr. Grote supposes, with great proba-
bility, that at the first foundation of the Athenian sym-
machy, a court of justice was established besides the
Synedrion of Delos, partly to decide the disputes of the
confederate states with each other, partly those between
the members of different states. The latter purpose pre-
supposes covenants about the principles and the form of
procedure which were to be followed in litigation arising
between members of different states, and covenants of this
kind were, as is well-known, called ouµßoλa. We may there-
fore say that the confederates had not merely a ovμμaxía,
but also σύμβολα with each other; and not merely a συνέ-
Spiov, but also a кowodikιov at Delos. So later, when the
δριον, κοινοδίκιον
Synedrion was transferred to Athens, together with the
confederate treasury, the koivodíkov at Delos came to an
end, and the Athenian courts took its place. Soon things
went further, and even litigation between citizens of one
and the same state, supposing it concerned more than a
certain sum, was brought to the decision of the Athenian
courts. No doubt it may be assumed that, in law-suits
between members of different states, the rules based on
covenants, such as the Kovodíktov of Delos had followed,
served, or were meant to serve, as the guide of the Athenian
[Rather, that the Synedrion acted as a court
y iv. 175 ff. c. 47.
of justice.]
z
Z
Perikles.
95
courts; such suits, therefore, might continue to be called
δίκαι ἀπὸ συμβόλων. But it is not incredible that this
same name now came to include those law-suits which the
members of one and the same state carried on with one
another before the Athenian courts; although in truth it
did not apply to them, and the ouµßoλa had no relation
whatever to such cases.
So I still hold, as before 2, that the statement of the
grammarians, who attribute this name quite generally to all
suits which the confederates carried on at Athens, is not
to be rejected. I see no reason for assuming with Mr.
Grote that it does not refer to the earlier symmachy, but
to the later one, which was gradually formed after the
battle of Knidus. At least this much is not incredible, that
law-suits between members of different states were called
by this name, whether both parties were citizens of con-
federate towns, or only one of them belonged to such a
town, and the other to Athens. This view seems to me
not to be contradicted by the passage of Antiphon". The
speaker says; "Many of the subject-allies emigrate, and
live even among the enemies of Athens (as Metoeki), and
cheat the Athenians by means of δίκαι ἀπὸ συμβόλων.”
But this is no proof that if they had stayed at home, and
entered upon law-suits with Athenians there, these would
not also have belonged to the category of δίκαι ἀπὸ συμ-
Bólov. It only shews that such persons were more in the
habit of initiating suits against Athenians in foreign parts,
having a better chance against them there. But Böckh
asks, what advantage could accrue to the plaintiff from
leaving his country, if the suit initiated in his place of
residence could not possibly result in any other mode of
decision than would have been open to him at home? The
answer is, that I am not referring to a suit brought from
the new place of residence before an Athenian court, but
of a suit which the plaintiff might bring against an Athe-
nian before a foreign court, in consequence of oúμßoλa
existing between Athens and independent foreign states.
That there were ouμßola in virtue of which the plaintiff
& Att. Proc. 779.
b De Cæde Herodis, 745.
• Staatsh. i. 530.
C
96
Schömann on the Constitutional History of Athens."
was not compelled to have recourse to the defendant's place
of residence, but might prosecute him where he found him,
I think that I am justified in assuming with Hudtwalcker ª.
And it is clear that the plaintiff against an Athenian, was
in a better position before a foreign court of justice, than
before one at Athens.
§ 9. THE REVISION OF THE LAWS UNDER EUKLEIDES
NOT CAUSED BY THE AMNESTY.
The changes in the constitution during the latter years
of the Peloponnesian war, were first the establishment of
Probouli immediately after the disaster in Sicily, then the
oligarchy of the four hundred, and finally, after the capture
of Athens by Lysander, the sovereignty of the so-called
thirty tyrants. All of these were of short duration, and
without permanent consequences, and so may be passed
over here; the rather, that the doubts which I might
express concerning Mr. Grote's account only touch some
accessory points of small importance. So also the remarks
I have to make about the restoration of the democracy
after the fall of the thirty, and the revision of the laws,
which was then set on foot, are of no great consequence;
still they may be inserted here. Mr. Grote thinks that
after it had been determined to restore the Drakonian and
Solonian laws, it was found, on closer inspection, that this
was incompatible with the amnesty which had been just
sworn. According to those laws, the perpetrators of enor-
mities under the thirty had rendered themselves guilty, and
were open to trial. Yet the amnesty had secured impunity
to all of them, with some individual exceptions. To escape
this consequence (i.e. to avoid the resulting contradiction
between the restoration of the old laws and the amnesty),
it was enacted, on the proposition of Tisamenus, to review
the laws of Solon and Drako, and re-enact them, with such
additions and amendments as might be deemed expedient.
And this is the way in which the orator Andokides £ also
represents the case; but it cannot possibly be the right
f
d V. d. Diät. 125.
e vi. 5, c. 66.
f De Myster., 82.
Revision of the Laws in the time of Eukleides.
97
account. Supposing it had really been feared that the
decree previously framed, enacting that the ancient laws
should be restored for a time, would endanger the amnesty,
the most natural and simple remedy was to affix a clause
to the decree, protecting the amnesty. The psephism of
Tisamenus says not a syllable of the amnestied offenders,
neither has its meaning and purpose anything to do with
them. It decrees a general revision of the laws, and that
the necessary additions should be made. Such a revision.
was necessary, even if no amnesty had preceded it. It was
not ordained for the first time by the psephism of Tisa-
menus; it had been decreed before, and the Nomothetæ
were already elected for the purpose. Obviously this de-
cree was the same as that which gave temporary authority
to the ancient laws, and appointed a no less temporary
government of twenty persons. This is quite clear from
the words of Andokides: εἵλεσθε ἄνδρας εἴκοσι· τούτους
δὲ ἐπιμελεῖσθαι τῆς πόλεως, ἕως ἂν οἱ νόμοι τέθειεν· τέως
δὲ χρῆσθαι τοῖς Σόλωνος νόμοις καὶ τοῖς Δράκοντος θεσμοῖς·
for ἕως ἂν οἱ νόμοι τέθειεν obviously means, “ until the new
legislation, which is to be framed on the basis of the old
revised and amended, is completed." The psephism of
Tisamenus only contains the particular rules of the pro-
cedure to be observed in this revision, and in these ad-
ditions. Besides, a general revision of the laws, in order
-
To save my readers the trouble of reference, I add the psephism itself,
from Andok. de Mysteriis, 83, Εδοξε τῷ δήμῳ· Τισάμενος εἶπε· πολιτεύεσθαι
᾿Αθηναίους κατὰ τὰ πάτρια, νόμοις δὲ χρῆσθαι τοῖς Σόλωνος καὶ μέτροις καὶ
σταθμοῖς, χρῆσθαι δὲ καὶ τοῖς Δράκοντος θεσμοῖς, οἷσπερ ἐχρώμεθα ἐν τῷ πρόσθεν
χρόνῳ. ὁπόσων δ᾽ ἂν προσδέῃ, οἱ δὲ (probably οἱ ἤδη) ᾑρημένοι νομοθέται ὑπὸ
τῆς βουλῆς ἀναγράφοντες ἐν σανίσιν ἐκτιθέντων πρὸς τοὺς ἐπωνύμους σκοπεῖν
τῷ βουλομένῳ, καὶ παραδιδόντων ταῖς ἀρχαῖς ἐν τῷδε τῷ μηνί. τοὺς δὲ παραδι-
δομένους νόμους δοκιμασάτω πρότερον ἡ βουλὴ καὶ οἱ νομοθέται οἱ πεντακόσιοι,
οὓς οἱ δημόται εἵλοντο, ἐπειδὴ ὀμωμόκασιν. ἐξεῖναι δὲ καὶ ἰδιώτῃ τῷ βουλομένῳ
εἰσίοντι εἰς τὴν βουλὴν συμβουλεύειν, ὅ τι ἂν ἀγαθὸν ἔχῃ περὶ τῶν νόμων. ἐπειδὰν
8
δὲ τεθῶσιν οἱ νόμοι ἐπιμελείσθω ἡ βουλὴ ἡ ἐξ ᾿Αρείου πάγου τῶν νόμων, ὅπως
ἂν αἱ ἀρχαὶ τοῖς κειμένοις νόμοις χρῶνται. τοὺς δὲ κυρουμένους τῶν νόμων ἀναγρά-
φειν εἰς τὸν τοῖχον, ἵνα περ πρότερον ἀνεγράφησαν, σκοπεῖν τῷ βουλομένῳ. It
may be doubted whether the form of the psephism, as inserted in the
speech of Andokides, is authentic; but no valid doubts can be alleged
against its matter.
H
98 Schömann on the Constitutional History of Athens.
to save the amnesty, is in itself something quite inconceivable.
It could only consist in rejecting all the laws which the am-
nestied persons had transgressed, and replacing them by
others. Were these others to have no penalties for the of-
fences which such persons had committed, and for which the
ancient laws prescribed penalties ? I imagine the offences.
had penalties attached in the revised code as in the ancient;
the amnesty was a special measure in favour of individuals,
and left the general legislation absolutely untouched.
About the two kinds of Nomothetæ who are distinguished
in the psephism of Tisamenus, which I subjoined in the
note, Mr. Grote pronounces for the view that those elected
by the Senate are only a more select committee from among
the five hundred elected by the Demotæ. They had the
special duty of making or collecting proposals, which were
then to be made public in the way laid down in the
Psephisma, and finally to be submitted to the examination
of the Senate, and the whole body of the five hundred
Nomothetæ. This is clearly the most probable view; but
it has already been put forward by C. F. Hermann ¹.
§ 10. REASONS FOR ARISTOPHON'S LAW ABOUT
CITIZENSHIP.
The time of the restored democracy under Eukleides is
also marked by the law of Aristophon, which enacted that
citizenship should henceforward be confined to children
whose father and mother were both citizens, and that those
who had not citizen parents on both sides should be reck-
oned aliens. Previously, the custom had been less strict,
and citizenship had not been denied to the latter class.
Mr. Grote i believes that he sees the reason of this in the po-
sition of Athens during the time of her maritime empire, when
Athenian citizens were dispersed among the confederate states
all over the islands and coasts of the Ægean sea. This must
have tended materially to encourage intermarriages between
them and the women of other Grecian insular states; and
i vi. 18, c. 66.
■ In the Jahrb. f. wissensch. Kritik. 1842, i. p. 128.
The Law of Aristophon.
99
by recognising such marriages as valid, and the sons born
of them as Athenian citizens, the bonds between Athens
and her confederates were strengthened, and a certain Pan-
Hellenic sympathy was nourished. But when, after the
loss of the maritime empire, her position was altered, then
this consideration too ceased to exist; and Pan-Hellenic
sympathy gave place to the individualistic tendency which
characterised all Greeks, and to the exclusion of aliens from
the franchise. No doubt there is some truth in this view;
still, the matter has another side, which Mr. Grote overlooks.
The earlier procedure had a reason, not merely in Pan-
Hellenic, but also in democratic tendencies. Democracy
was everywhere inclined to increase the numbers on which
its power rested. So there were, as we know from Aris-
totle, democracies in which all sons of citizen mothers
ranked as citizens, even if the fathers were aliens. He
tells¹ us, too, that in order to secure the democracy, the
popular leaders are in the habit of strengthening the Demos,
by receiving as large numbers as possible, and making them
into citizens; not merely those born in lawful wedlock, but
also illegitimate children, and those who are of citizen birth
on one side only, whether by father or by mother. The
great facility with which Athenian citizenship was given
to all comers from foreign parts in the time of the classical
orators, is the subject of loud complaints in Isokrates and
Demosthenes. But as regards the law of Aristophon, Pe-
rikles had carried just the same law, which was now merely
re-enacted by him, forty years before, at the height of the
maritime empire. Therefore, Mr. Grote's expression needs
to be corrected when he speaks of a law which prevailed
before Eukleides, according to which children of an un-
equal" marriage were nevertheless citizens. Such a law,
which would have annulled that of Perikles, there was
not. It was only that a more lax practice had crept in,
as it crept in again soon after Aristophon. Herr Wes-
m
Pol., iii. 5. 7.
¹ Pol., vi. 4. 16.
m vi. 18.
[This would mean, where either husband only or wife only were citizens.
Grote does not include the latter case.]
n
100 Schömann on the Constitutional History of Athens.
termann has made it very probable that even the Periklean
law was no more than a renewal of an old Solonian law,
which had merely fallen out of use by degrees, but had
never been formally repealed. The reason of its renewal
by Aristophon certainly lay not so much in the change
of external relations by the loss of the maritime empire,
as in the endeavour to oppose some wholesome limits to
the democratic elements, which were but too powerful in
the state. The same endeavour is perceptible in the far
more thorough proposal of Phormisius, being, however, no
longer practicable, according to which only those who had
landed property were in future to rank as full citizens.
The law of Aristophon, indeed, was more lenient than
that of Perikles had been; it deprived no one of citizen-
ship who possessed it, and only ordained a stricter rule
for the future; whereas the other had struck off not much
less than five thousand citizens.
§ 11. PROPOSAL OF PHORMISIUS TO RESTRICT THE
FRANCHISE NOT OLIGARCHIC.
I cannot refrain from saying a few more words on the
proposal of Phormisius, because Mr. Grote has judged of
it not only with great disfavour, but, as I think, with great
injustice. It is entirely wrong to regard Phormisius as
an adherent of the oligarchical party. We read, that he
was among those who returned to the city with Thrasybulus
after the fall of the thirty; he had therefore fled before
the oligarchs, had probably fought on the side of their
antagonists, and helped to win liberty back again. But
he was no friend to the all-levelling democracy, which
reigned at Athens after the time of Perikles. Granting
that we are not to doubt the statement of Dionysius P, that
his proposal had the approval of the Lacedæmonians, still
we may assert with confidence that he did not make it in
order to please them, but from a genuine conviction, and
Beiträge zur Geschichte des athenischen Bürgerrechts, in the reports
of the Transactions of the K. Sächs. Gesellschaft d. Wissensch. philol. histor.
Cl. vol. i. p. 200 ff.
P Lysias, c. 32.
Proposal of Phormisius.
101
·
with patriotic motives. Mr. Grote says disapprovingly ;
"Phormisius had of course at his command the usual ar-
guments, by which it is attempted to prove that poor men
have no business with political judgment or action." And
he then repeats the accusations which Lysias (in the frag-
ment preserved in Dionysius) brings forward against Phor-
misius; designating his proposal as malicious and absurd,
as having for its purpose to introduce oligarchy, and to rob
Athens of a great part of the power she derived from her
constitution, of her patriotism, and her harmony. "Never,
certainly," he continues, "was the fallacy which connects
political depravity or incapacity with a poor station, and
political virtue or judgment with wealth, more conspicu-
ously unmasked, than in reference to the recent experi-
ence of Athens. The remark of Thrasybulus was most
true, that a greater number of atrocities, both against
person and against property, had been committed in a
few months by the Thirty" and their adherents, "than
the poor majority of the Demos had sanctioned during two
generations of democracy." This is very true; but how
far it can go towards justifying the reproaches made against
Phormisius I do not see.
ន
Oligarchy differs toto cælo from what Phormisius intended.
His proposal, if carried, would, according to Dionysius, have
deprived very nearly five thousand citizens of their full
citizenship, therefore about the same number as had some
decades of years before been struck off according to the
law of Perikles. The question might be raised, whether
the want of a citizen mother was really a more proper
ground of expulsion, than the want of that kind of property
which all ancient political philosophers regarded as the only
security for a trustworthy body of citizens. Mr. Grote t
only mentions the Periklean law in passing, and would
certainly not suffer any one, by reason of that law, to re-
proach the statesman whom he justly extols, with oligar-
chical or even anti-democratic sentiments. Besides, a con-
stitution which invites some three-quarters of the whole
• Id. ib.
s Xen. Hell., ii. 4. 40.
a Vol. vi. p. 5, c. 66.
tiv. 290, c. 49.
102 Schömann on the Constitutional History of Athens.
body to a share in the government, and only excludes one
quarter, is still democratic enough; it is still at least
a large majority, ruling over a vastly smaller minority.
It is all the more democratic, that it only makes landed
property, as such, the condition of citizenship, without de-
manding any definite amount of it, thus not excluding
even the smallest landowner. It does not even make any
difference in privilege, according to different amounts of
property, as Solon did, but gives equal rights to the largest
and smallest landowners.
There is no reason for supposing that Phormisius meant
anything but this, e.g. that he had in view a timocratic
arrangement by classes. Among the minority whom his
proposal would have excluded from full citizenship, there
were no doubt many brave and honourable people; no one
would deny that. And of course they were not all poor;
there might be individuals among them who possessed more
than most of the small landowners, whom yet Phormisius
did not try to exclude; but the greater part of them neces-
sarily consisted of that "banausic" and maritime popu-
lation, which ancient politicians unanimously, and without
exception, designate as least fitted for the decision and
direction of matters of state. Is it likely that so universal
an opinion rested only on imagination, and not on experi-
ence? Mr. Grote quotes, on the other hand, in praise of
this class, a passage from Xenophon", which says that
there was less insubordination among the common people
who served on board the fleet, than among the richer classes
who served as cavalry or hoplites. The remark is no doubt
correct, and there were good reasons for the fact, which are
partly at least indicated in Xenophon himself; that is, that
the officers of the hoplites and cavalry, appointed by demo-
cratic election, were very often destitute of the qualities
requisite for command, whereas the ships' crews were, as
a rule, under well-trained captains, and the necessity of
precise order was far more obvious in the service at sea
than on land. But what has this obedience and discipline
to do with capacity for political rule? Of course, it is an
" Memorab., iii. 5. 19.
Proposal of Phormisius.
103
old and true saying, that in order to govern, men must
learn to obey; but I do not think that the converse will
hold good, and that whoever can obey is therefore fit
to govern.
§ 12. CRITICISM OF GROTE'S ESTIMATE OF THE
ATHENIAN DEMOCRACY.
Again, as regards the comparison of the Athenian Demos
and its acts with the conduct of the oligarchs, there cannot
of course be a moment's doubt which side committed most,
and most heinous, crimes; but it must be repeated that such
a constitution as Phormisius proposed is really anything but
oligarchical; that it is, in fact, quite sufficiently democratic.
Only a madman could wish to defend the actions of which
the oligarchy was guilty in this period of re-action against
the democracy; but we are not to forget in this question
that the dangerous character of this oligarchy had its root
in nothing else than the extreme exasperation with which
the wealthy and cultivated minority saw itself subjected to
the domination of the masses, which necessarily consisted
in great part of rough and uncultivated persons, and which
were guided by demagogues destitute of merit and worth.
That such a sovereignty of the masses must have been op-
pressive in the highest degree to all who did not belong to
them, is clear; and the remarks made on this point in the
tract on the Athenian commonwealth among Xenophon's
writings, may be set down as one-sided, but hardly as un-
founded. The hostility to the democracy can be thus ex-
plained, although the actions to which it led were morally
most reprehensible, and even politically were mistakes.
That, on the other hand, the populace of Athens compared
with the oligarchs is seen to be infinitely better, any one
will gladly admit. Every one will say, with the most as-
sured conviction, that if ever any people was capable of
self-government, the Athenians were that people. This is
Pausanias' opinion, when he says that democracy never
made any people great except the Athenians, and it had
(
I iv. 35. 3.
X
104 Schömann on the Constitutional History of Athens.
made them great because they were superior to all other
Greeks in native good sense, and transgressed least against
the laws which they had. Mr. Grote's work, in many of
its chapters, forms such a corroborative commentary on these
words, as must satisfy the warmest friends and admirers of
Athens. He has had the skill to refute successfully not
a few charges which have been brought against the Athe-
nian Demos, to reduce others at least to smaller proportions,
and to explain and extenuate what could not be praised.
Such reproaches, he remarks, rest to a great extent on the
authority of passages of Aristophanes, which cannot possibly
pass as credible evidence, where the object is to obtain his-
torical truth. And it is true that Aristophanes is a cari-
caturist, who idealises his figures in his own fashion; that
is, by distorting them beyond reality in the direction of
what is ugly and ridiculous; still, a good caricaturist will
have skill to make the original recognisable, in spite of the
distortions; and Aristophanes was no exception.
Mr. Grote, too, idealises a little, and of course with an
opposite tendency. Even to a Kleon, whom no one ever
praised before, he succeeds in giving a tolerable, even a
laudable appearance, with greater skill than Isokrates to
his "illaudatus Busiris." His representation of the pro-
ceedings at the trial of the generals who were condemned
to death for alleged neglect of duty after the battle of
Arginusæ, must be called a real masterpiece, which can-
not easily be matched. The defence of the Athenians
against the charge of mean ingratitude in the condemnation
of Miltiades, and of crying injustice in the sentence of death
upon Socrates, leave nothing to be desired; and everything
good and commendable that the Athenians did at home or
abroad, in peace or war, finds with him complete apprecia-
tion and due honour. Yet, though we gladly agree in all
the good that he says of the Athenians, though we readily
listen to his palliation of their faults and failings, still all
this cannot modify our judgment of their democracy. Even
the noble people of Athens did not bear it long without ex-
periencing in itself its mischievous effects; even in their
y vi. 38, note, c. 67.
Estimate of the Athenian Democracy.
case it proved a dangerous gift, which ends by enfeebling
and undermining the virtues by which alone it can be sup-
ported. The part of the history which has yet to come
will compel Mr. Grote to this admission, however warm
a friend of the democracy he may be. Whether, indeed,
the democracy was not inevitable is another question. It
must be conceded that, without it, Athens would not have
been so great and so brilliant as we see her in the fifth
century. But whether precisely this kind of greatness and
brilliancy was the most desirable; whether the noblest pro-
ductions of Athenian genius, which will never cease to
educate and delight mankind, could not have come into
being under a somewhat less absolute democracy, may be
left to every one to consider for himself. But this much
is certain; that among the ancients themselves, those whom
we honour as the best and wisest, the creators of the most
imperishable works of genius, do not appear as friendly to
the democracy in question. But it is not to my present
purpose to enter upon discussions of this kind; my purpose
was only to correct, as well as I could, the points in which
Mr. Grote's account of the history of the Athenian con-
stitution, and the successive stages of its development,
appeared to me incorrect. I desired to contribute my
share to prevent false views, recommended by his autho-
rity, from obtaining more general acceptance, and driving
out the true. I recognise, as readily as any one, the great
value of his work as a whole, in spite of the criticisms
which I have made on some details;
some details; and I am glad to
end my treatise as I began it, with this recognition, and
with an expression of gratitude for the pleasure and profit
which the study of his work has afforded, and will continue
to afford me.
Printed by James Purker and Co., Crown Yard, Oxford.
105
NOTE to p. 21.
[Professor Schömann has more recently (Handbuch, 1871; vol. i. p. 347)
adopted a view akin to Grote's; viz., that only such debts were en-
tirely remitted as had put the creditors in possession of the debtor's
property, or person; so that e.g. Solon's friends only gained by the
depreciation of the coinage, not by escaping payment in toto.]

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IN CATILINAM (Text and Notes) 1
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TACITUS.
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EPISTOLE SELECTE. Pars I.,, 1 6
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