-. •.-■■ 
 
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 Gc8S 
 1&78 
 
 ATHENIAN 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 FROM 
 
Cornell University Library 
 DF 214.G88S36 1878 
 
 Athenian constitutional history 
 
 3 1924 028 262 214 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924028262214 
 
ATHENIAN CONSTITUTIONAL HISTORY. 
 
V 
 
 ATHENIAN CONSTITUTIONAL HISTORY, 
 
 AS REPRESENTED IN 
 
 GROTE'S HISTORY OF GREECE, 
 
 CRITICALLY EXAMINED BY 
 
 GlF. SCHOMANN: 
 
 translate, toit| i\t $at|0r's pxmma% 
 
 BEBNAED BOSANQDET, M.A. 
 
 FELLOW AND TUIOB. OE UNIVERSITY COLLEGE, OXEOSD. 
 
 JAMES PARKER AND CO. 
 
 1878. 
 
 1 . . \i I- 1 1 V 
 
'CORNELL 
 UNIVERSITY! 
 
 LIBRARY 
 
TBANSLATOK'S PKEFACE. 
 
 rpHE conclusions reached in this criticism (pub- 
 lished, 1854) are substantially the same as those 
 of the corresponding part of Professor Schomann'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 [ ]. 
 
TABLE OF CONTENTS. 
 
 § 1. Introductory ...... 1 
 
 § 2. The Four Tribes and their Divisions : — 
 
 (a.) Their Names significant . . . . 3 
 
 (5.) Local as well as Family Unions . . .10 
 
 (e.) Eelation of Wvr\ and rpWrves to Phratries . . 12 
 
 § 3. Eelations between the towns op Attika before 
 
 Stncecism . . . . .15 
 
 § 4. Drako . . . . . . .17 
 
 § 5. Solon: — 
 
 (a.) Was there Democratic sentiment in his time ? . 19 
 
 (b.) Grote's mis-reading of Plutarch . . .20 
 
 (c.) Seisachtheia and Amnesty . . . .21 
 
 (d.) Timocratic Classification . . . .23 
 
 (e.) Principles on which distinction is to he made be- 
 tween Solonian and later institutions . . 27 
 (/.) List of Solon's Constitutional enactments . . 34 
 {g.) Passages examined (on Powers of Assembly, and 
 
 Judicial function of People) . . .35 
 
 (h.) Helisea and Popular Assembly were not the same . 38 
 (*'.) (i.) There were Dikasteries. 
 
 (ii.) The Assembly could not legislate, 
 (i.) There were Dikasteries. 
 
 (a.) Examination of Passages . . .40 
 
 (/3.) Other Courts, lightening the work of the 
 Dikasteries. 
 Local Judges (koto Sf/fiovs SiKaarraV) . . 45 
 
 Disetetse . . . . .46 
 
 Nautodikse . ... 50 
 
 Archons' Judicial powers not such as to ex- 
 clude Dikasteries .... ib. 
 
 Eelation of Disetetse to Dikasteries . . 52 
 
 (y.) Comparison of Province of earlier and later 
 
 DikasterieB . . . .54 
 
V1U TABLE OF CONTENTS. 
 
 PAGE 
 
 (ii.) The Assembly could not legislate, 
 (a.) Procedure before Nomothetse in the time of 
 
 Demosthenes . . . .56 
 
 (0.) No improbability in the enactment of such 
 
 a procedure by Solon . . .58 
 
 (y.) Grote's arguments against Solonian origin of 
 
 Nomothetae . . . .60 
 
 § 6. Kleisthenes: — 
 
 («.) Kleisthenes made only 100 Demes . . .64 
 
 (5.) Kleisthenes made 50 Naukraries . . .68 
 
 (c.) Kleisthenes admitted no free native Athenians to 
 
 the Franchise . . . . .69 
 
 (d.) Difference between Orgeones and Gennetae . 71 
 
 («.) Institutions connected with the Ten Tribes . 72 
 
 (/.) The Lot introduced by Kleisthenes . . 73 
 
 (g.) The Areopagus in the time of Kleisthenes . . 82 
 
 (A.) Ostracism abused by the Athenians . . 85 
 
 («'.) Form of Procedure in Ostracism . . .86 
 
 (&.) Kleisthenes' Reforms not before 507 b.c. . . 87 
 
 § 7. Changes between Kleisthenes and Peeikles . ib. 
 
 § 8. Changes under Pebiexes: — 
 
 (a.) List of Changes mentioned by the Ancients, and 
 
 also of those vouched for by Grote . .88 
 
 (5.) Not improbable that these latter Institutions were 
 
 older than Perikles . . . .89 
 
 (c.) Judicial pay at first one Obol . . .93 
 
 (d.) Aikoi curb a-vfi^oXav included all Law-suits carried on 
 
 by Allies at Athens . . . .94 
 
 § 9. The Eevision of the Laws undeb Eubxetdes not 
 
 caused by the amnesty . . .96 
 
 § 10. Reasons eob Abistophon's Law about Citizenship . 98 
 §11. Peoposal oe Phoemisius to eesteict the Feanchise 
 
 not Oligaechic . . . . .100 
 
 § 12. Ceiticism oe Geote's estimate oe the Athenian De- 
 mocracy ...... 103 
 
^rbimtatm on the (Emtatittrtiottal 
 
 § 1. Introductory. 
 
 TN 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. 
 
2 Schbmann 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 
 
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 
 
 b2 
 
4 Schdmann 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 
 (Phylae), Geleontes, Hopletes, Argadeis, and iEgikoreis; 
 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 ^Jgikoreis perhaps Athene, which may have 
 induced Euripides to derive their name from the aegis of 
 the goddess, the Hopletes Poseidon, the Argadeis Heph- 
 aestus. Hence were obtained the four tribes, Dias, Athenais, 
 Poseidonias, Hephasstias. 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, Aktsea, Paralia ; and 
 again into Kranais, Atthis, Mesogsea, and Diakris, is ob- 
 viously a pure invention. We may imagine tribes like 
 Mesogsea, Aktsea, Paralia, Diakris; but no one can help 
 regarding it as a mere conceit, that in this extraordinary 
 way there should be aseribed to the same time two tribes 
 Aktsea 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 named 
 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 divisf ns (<f>v\al tottlkuI) as well. Now 
 some moderns, among \ horn is Mr. Grote, are disposed to 
 regard them as family divisions (<j)v\a,i yeviicai) 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. 
 
6 Schomann on the Constitutional History of Athens. 
 
 Three of the four Ionic tribes have decidedly signifi- 
 cant names, — Hopletes, Argadeis, .ZEgikoreis. 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. ZEgikoreis can only mean "goat-herds." 
 But it is true that the name Greleontes 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 way s 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 — (f>v\a/ces, as he calls them — he meant 
 the Hopletes ; and likewise, that in speaking of the handi- 
 craftsmen (Srjfuovpyols), he could only be thinking of the 
 Argadeis. So there remain only the Greleontes and ZEgi- 
 koreis for the priests (lepoiroioi), and the field-labourers 
 (yempyoi), 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 
 Timseus 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 
 iepoiroioi, the second his Brj/jaovpyoi, the third his <yeo)pyoi, 
 the fourth his (pvXaices; 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 .ZEgikoreis 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 a ;" 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- 
 - Vol.iii. p. 262, 3 (p.ii. c. 10.) 
 
8 Schomann 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 b ." 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 j list 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 iEgikoreis 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 Sehbmann 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. 
 
 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 Phylse c as <f>v)Ca,l yevmal (associations based on 
 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 a , 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 
 
 ' Vol.iii.p.269. d Ibid., p. 265. 
 
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 Phylse 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 (cj>peap). 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 Phylse 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 " 
 
 e Buttmann, Phratries, Mythol., ii. p. 232, believes Budzeus to be the author 
 of this explanation, which he does not himself absolutely reject. No doubt 
 it is proposed by Budseus in the Comra. 1. gr. ; but that it is ancient, ap- 
 pears from Serving on Virg. 2En., vii. 286. The name a$d, too (= So, oXa, 
 ovi, £><£) , means properly, a separate district. See Hemsterhus. on Hesych. 
 in oval, Miiller, Dor., b. ii. c. 5, 3, and Bockh, ii. p. 713, where " Geschlecht" 
 is written for " Phratrie " by an oversight [?]. 
 
12 Schbmann 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 Phylae other than 
 those already mentioned. 
 
 (c.) Relation ofeOvq and rplrrves to Phratries. 
 
 That is to say, we are told of edvq and t/htti/69, 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 
 (pparpia, edvos, Tpirrvs, are only different names for one and 
 the same thing. That this is a mistake is now generally 
 recognised. The name edvos 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 Penestae. 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. 
 
 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 e9vr), 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 
 ' Vol. iii. pp. 264, 5. 
 
14 Schomann on the Constitutional History of Athens. 
 
 local circumscriptions, can at the same time have been sub- 
 divisions of the Phylse, which Mr. Grote has represented to 
 us only as family tribes, formed by the union of (rentes and 
 Phratries, which originate naturally, and therefore rest on 
 kinship only; so that the Phylse 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 Phylse. 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 Phylse; and that therefore the for- 
 mer continued to exist as divisions of the people, and not 
 as districts, while the Phylse continued to be both the one 
 and the other. Therefore, when it was purposed to divide 
 the Phylse 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 e 
 agrees in thinkiug that the Naukraries are an institution of 
 later times, but h he doubts the correctness of explaining the 
 B P. 266. k p. 264. 
 
The Four Tribes. 15 
 
 Dame by the obligation to provide a ship ; and prefers, with 
 Wachsmuth and others, to derive it from valeiv, " to dwell," 
 and make it mean a "principal householder." How im- 
 probable this view is has been well pointed out by Bockh, 
 in a note to the second edition of the " Public Economy of 
 Athens," i. 708 ; and I am convinced that if Mr. Grrote had 
 been acquainted with that note, he would have given up 
 his opinion. 
 
 § 3. Relations between the towns of Attika 
 
 BEFORE SyNCECISM. 
 
 It has been remarked above, that the organization of the 
 Phylse, 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' ' 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, '/i^waSae, which is, moreover, the 
 only one we know of ; so as those twelve towns are none 
 of them called Achnia or Achnise, 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- 
 
 1 Thuk.,ii. 15. 
 
16 Schomann on the Constitutional History of Athens. 
 
 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 k 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 Homeridic 1 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 iEolic 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 Neleidse and Pelopidse. 
 
 The second argument, drawn from Herodotus, is no better 
 founded. In Herodotus' m story, Solon tells Krcesus of 
 a certain Athenian named Tellus, who had fallen yevojjuivqs 
 fidxVi wpbs tov<s d<TTvyeLTova<; ev 'E\evcrivi, and it is clear 
 that the event took place not very long before Solon's time. 
 Now if we connect rovs doTvyehovas ev 'E\evaivi, then 1 of 
 course the Athenians fought a battle with the Eleusinians, 
 and it may be inferred that the two towns were not yet 
 
 k iii. 279. [i.e. originating with the Homeridse.] ■» i. 30. 
 
Drako. 17 
 
 united in the same state. But if we connect yevo/j,evrj<; 
 /Ma.'xrjs iv 'EXevcrivi, then the expression refers to a battle 
 in the vicinity of Eleusis, and the daTvyeiTove<;, 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 da-Tvyelroves 
 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 tovs acnvyetrovas iv 'EXevcrivi, instead of which 
 we should then expect either tovs iv 'EXevcrivi dcrrvyetrovas, 
 or roils darvy. tovs iv 'EXevalvi. 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 11 , in consequence of Miiller's 
 remarks in the opposite sense. 
 
 § 4. Dkako. 
 
 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 Ephetse 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 oven 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 
 
 - Add., p. 1361. 
 c 
 
18 Schomann 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 Csede Eratosth., p. 31 ; and they are the further 
 evidence on which Mr. Gfrote 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 
 spotP, — legends, ceremonies, or religious feelings, — which 
 compelled judges there sitting to condemn every man proved 
 ° ii. 284, part 2, c. 10. p The Areopagus. 
 
Sobn. 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 r 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? 
 
 § 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 
 
 i ii. 286. 
 
 ' [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 epam /icv rainy, k.t.\., not 
 from the sentence about the myths, which is a mere preliminary warning. 
 Schomann's objection is therefore, on the whole, just.] 
 
 c2 
 
20 Schdmann 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. 
 Grrote'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. 
 
 It is an extraordinary misunderstanding by which Mr. 
 Grote represents Solon as elected archon with dictatorial 
 power, " along with Philombrotus s ." 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, ypedr) S 1 apxcov fiera 
 $i\6fi{3poTov Sfiov teal SiaWaKTrj^ ical voiioBerris. It is 
 patent that Mr. Grote believed he read fiera, ^Ckonfiporov, 
 and connected Sfiov with those words, instead of taking 
 together, as he ought, apx<ov 6/mov km hiaXkaicr^s zeal 
 
 • P. 303. 
 
Solon. 21 
 
 vo/j,odeTr)<;. The mistake would not have heen 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 Bockh, 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 drachmae of heavy money, had only to pay back 
 100 drachmae of light money, and thus gained 27 drachmae. 
 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 
 
22 Schb'mann 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* 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.) Timocratie Classification. 
 
 Among Solon's constitutional laws, our attention is first 
 claimed by the Timocratie classification of the people. Mr. 
 Grote agrees on the whole, as might be taken for granted, 
 with our countryman '■ Bockh's masterly treatment of this 
 subject; only in respect of the third class, the Zengites, 
 he feels compelled to deviate from Bockh, and to follow 
 the statements of the ancients. What they say is, that the 
 minimum income of this class was 200 medimni (=200 
 drachmas) ; while that of the Knights, or the second class, 
 amounted to 300 ; and that of the first class, the Pentakosio- 
 medimni, to 500. Bockh, 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 
 ' P. 305, part ii. c. 11. 
 
24 Schdmann on the Constitutional Sistory 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 drachmae, 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 drachmae, and from this the conclusion seems to 
 result, that a Zeugite's property need only produce an in- 
 come of 150 medimni or drachmae. 
 
 Bockh 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 
 drachmae, or 1 talent; that of the Knights, 12 x 300=3,600 
 drachmae ; that of the Zeugites, 12 x 150 == 1,800 drachmae. 
 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 
 tI/j,i)[ao,, or taxable capital, and the other two classes only 
 a certain proportion of it. This was for the Knights -|, or 
 3,000 drachmae ; for the Zeugites f, or 1,000 drachmae. The 
 class of Thete3 was free from this kind of taxation. 
 
 In refutation of this account of Bockh'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 Bockh's hypothesis ; and this he 
 thinks an adequate ground for preferring the other account. 
 u P. 320, part ii. c.ll. 
 
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 f- 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 Bockh'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 Bockh. 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. Bat 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. 
 
 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 "weii" (= 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 Schomann 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 Bockh ; 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 (a<f>avr)s ov&Ca) 
 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 Peirseus 
 was inhabited by a trading and manufacturing population 
 
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 
 (ela(popd) was raised about 01. 88. 1 ; not merely the first 
 in the Peloponnesian war, but the first that was raised at 
 all, as Bockh 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 
 Ti/jL-rifjiaTa 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. 
 
 (<?.) 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 Helisea, and 
 
 y iii. 19. 
 
28 Schbmann 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 Heliaea, 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 z ." 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 INomothetse, 
 chosen annually with a view to revision of the laws, and 
 the ypa^rj irapavoficov, 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 Phylse, 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 b ; 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 Nomothetse, in the form in which 
 we know them from Demosthenes. And for the ypa<f>rj 
 irapavoixav, whether it is a Solonian or a later institution, 
 we shall probably remain undecided about it, as about many 
 
 ' Vol. ii. p. 323. " P. 324. 
 
 b Dr. Tbirlwall, 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 Schbmann 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 e , " 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 wonld 
 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 hear d 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 Achsean constitution was famous, 
 and was afterwards taken as a model by the states of Magna 
 Grascia ; 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. 
 
 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- 
 J Polyb., ii. 41, 5 ; Strabo, viii. 384. 
 
32 Schomann 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, Eypselus 
 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 e , 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 Sr/fiov Kpdros, which really expresses 
 
 - Vol. vi. 39, part ii. 67. 
 D 
 
34 Schomann on the Constitutional History of Athens. 
 
 just the same thing. He says, Ar^iw fiev yap eSaica roaov 
 Kpa,TO<s, ocraov eirapiceZ. 
 
 (/.) 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 Eupatridse, 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 ; a>9 yap Brj tov B^fiov, irporepov aTraxr- 
 fievov irdvTcov, tot€ irphs rfjv eavrov fioiprjv irpoiredrjKaTO, k.t.X. 
 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 suflicient. 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 Schweighaiiser's edition, the only one I have 
 at hand just now, read arrvwdjiivov tots iravra, or Tore 
 irdvrmv. Schweighaiiser'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 itovtodv, the other reading, is 
 not right, with the words arranged as they are now; either 
 irporepov must be struck out before airma^evov, so that 
 aTTcocrfievov Tore irdvrtov may go together, or Tore must be 
 put after iravrav, so as to be taken with irpoa-eO^Karo. 
 
 d2 
 
36 Schomann 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 tcpdros, 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 Phylse 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. Grrote 
 does not distinguish rightly between what is alleged as 
 the author's own opinion, aud what is quoted as that of 
 others. He regards as belonging to this latter portion the 
 words (Sect. 2) : eoace Se SoXcov iiceiva /lev vwdpxovTa irpo- 
 Tepov ov KaTaXvaai, Trjv re fiovXrjv (the Areopagus) kuI ttjv 
 twv apx&v aXpeatv, tov Se Brj/iov Kara<TTrj<rai, ra SiKaffT^pia 
 TTowjo-as e'tf irdvTwv. 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 (<rirov8cuot;) 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 iu 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 (6 Br]/j,os i(j>povr}iAQTio-6T]), and worthless demagogues 
 
38 Schomann on the Constitutional History of Athens. 
 
 broke down the resistance of the reasonable politicians (t<Si> 
 e-irteiic5>v) ; 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. Gfrote 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 Stj/jlos ; 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.) Helicea 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 "Helisea;" for he says in a note f , "I ima- 
 gine the term 'HXtaia, in the time of Solon, to have been 
 used in its original meaning — the Public Assembly, per- 
 haps with the implication s 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 h , 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) 
 
 ' Vol. ii. p. 328. b [" Connotation" in edition of 1849.] 
 
 h Darstellung der Griech. Statsverf , p. 215 f. 
 
Solon. 39 
 
 is quoted, who writes : 'Hkiala' KaXetrai Be /iiya Bi/cao-- 
 T-rjpCov Kai ol ■)(i\iot, Biieaarai. iv tovtois ap^aipealab yivovrai 
 Kal at fieyiarai KpLaet,s Kai al Sioifctfaeis' eKaXelro Be /cat 
 /MeyaKT} e/cKXrjcrCa. 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 Helisea as the assembly 
 of the eKK~kri<na£ovTe<; ; 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 b), 
 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 Helisea 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 Heliaea ; 
 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 work ', the 
 Ecclesia, or legislative assembly, is distinguished from the 
 Helisea, as judicial assembly ; but he is there speaking of 
 the times after Kleisthenes, and after the battle of Platsea. 
 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 eidvvai), to an Ecclesia acting judicially ; 
 and in vol. ii. ' we find the general assembly of the people 
 ' Vol. iv. p. 99, c. 46. k Vol. iii. p. 117, e. 31. * Vol. ii. p. 328. 
 
40 Schdmann on the Constitutional History of Athens. 
 
 as Helisea, under the guidance of the Senate of Five Hun- 
 dred. But at what time the distinction between Ecclesia 
 and Helisea 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 "Helisea" 
 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 Helisea 
 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. Bikasteries, (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 (SiKa^eiv), and that of voting 
 in the popular assemblies (i/c/c\r)cnd£etv), 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 (to, if\ei<TTa toiv Sbajtopwv) 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 Schomann 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 he 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 n ." 
 
 Now we have in fact a piece of evidence in quite express 
 terms, given in Suidas, under the word "Apycov, 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, Kvpiot rja-av (oi apj(pvres) &are ras Slica<; 
 avToreXeis Troieicrdac vcrrepov Se S6Xa>vo<: voftoOeTtfcravTos 
 ovSev erepov avrois eVeXetro rj fiovop viroicpivew (better ava- 
 Kpivetv) rovs avTihUovs. 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 avTorekel? (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 Siktj aiiro- 
 TeKrjs only so long as the decision was not subject to 
 appeal j now, according to Plutarch, there was an appeal 
 in the time after Solon, and so the Archon's decisions 
 were no longer avroreXeis, 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 ; 
 
 " ii. 329 n. ° Also in away. AeJ. xpi"-. Bekker, Anekd., i. 449. 
 
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- 
 
 p ii. 328. 
 
44 Schdmann 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 Helisea, 
 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. (/3.) Courts other than the Bihasteries. 
 
 In the Athenian state, in the period of which our autho- 
 rities give U3 more exact knowledge, there existed besides 
 the Heliastic Dikasteries (omitting the Areopagus and 
 Ephetse, which need not be introduced here,) various other 
 descriptions of courts; viz. local judges, Disetetse, and Nau- 
 todikse. 
 
 Local Judges. . 
 
 The local, or district judges, (Kara Stffiovs SiieacrTal,) 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 drachmae) ; and besides these, 
 substantial injuries (8. alicias) and cases of assault (8. fiuiitov). 
 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 Schomann on the Constitutional History of Athens. 
 
 Dicetetce. 
 
 Disetetee, 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 ; avrjprjKa)? ra ScKaa-Tijpia 
 TfiS xpiveiv a/rravTa Kal BtKa^eiv. Mr. Grote, too, refers to the 
 place in Plutarch i, 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 Disetetse 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 Diaetetse discusses the 
 whole subject with his usual exhaustive profundity, thinks it 
 
 i Vol. iii. p. 122, o. 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 Disetetse 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 
 Disetetse had been passed j his words are, ravT i/iov irpoKa- 
 \ovfiiwov ovSeTrwTTOTe TjOeKrfae avvekdelv, ovBe Xoyov irepl 
 &v eveicakei irobrjaaadab ovSe Slanav eirLTpetyai, ems vfiel? 
 tw vo/JjOv tov irepl t&v SiaiTrjTOJV edeade. 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 Disetetse 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 Schomann 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 
 Disetetse, 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 Disetetse 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 r has supposed, with 
 reference to the compromissory Disetetse, '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 Disetetse was rather an attempt at conciliation, than 
 a definitive decision of the controversy. And in reference 
 to the public Disetetse, the law might, for instance, contain 
 an extension of their functions. For according to the law 
 of the orator's period, the Disetetse 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 province 8 of the Disetetse, the case 
 
 * In the Zeitschrift f. d. Alterthumswiss, 1849, p. 266 f. 
 
 8 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 Disstetse ; 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 Diaetetae at that time, 
 (i.e. previous to the new law) ; so that the case could only 
 come either before compromissory Diaetetae, 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 Diaetetae 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 Disetetes ; 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 Diaetetae; 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 Diaetetae 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 Disetetse; 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 Isaeus, in whose time 
 there is no doubt that they existed, no reference to them 
 occurs. 
 
 also be an object, aa trial before Diatetae was oheaper both for the state 
 and the parties. 
 
 E 
 
50 Schbmann on the Constitutional History of Athens. 
 
 Nautodikce. 
 
 "With regard^to the Nautodikse, 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 
 e/nropoi (persons engaged in maritime commerce) were laid 
 before them ; and, if we are strict in our interpretation of 
 the orator's expression i^ehUaaav, that such cases were 
 tried to the end, and decided by them. 
 
 Besides this, the Grammarians tell us that ypaificu ^evias 
 (accusation of aliens on account of the illegal assumption 
 of citizen rights) as well, belonged to the province of the 
 Nautodikffi ; 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 Nautodikse 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 
 efLTropoi. However, think as we may about the antiquity of 
 the Nautodikffi, at least we are fully entitled to regard the 
 cantonal judges, and the public Disetetae, as belonging to 
 the time of Solon. 
 
 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. Grrote 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 Demosthenes'; "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 u ." 
 
 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- 
 
 '. irpbs MaKapraTov, p. 1076. [ u kkto rb Te'Aos.] 
 
 e2 
 
52 Schomann 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 (e7ri/3o\a? eTriftaXkeiv), 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. Grrote 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 qfDicetetw to Bikasteries. 
 
 The only exceptions to this universal principle were in 
 the case of the cantonal judges, the Disetetse, and probably 
 also the Nautodikse. 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 V 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 Diae- 
 tetes, or not. In earlier times, according to Pollux ?, no 
 private case was brought before a Dikastery, which had not 
 been previously brought before Disetetse; and he means 
 
 - Book iT. o. 5 and 6. i yiii. 126. 
 
Solon. 53 
 
 public Disetetse, 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, irakai. It is admitted that 
 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 Disetetse were not introduced before the time of 
 Lysias, the wdXai 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 Disetetse to the 
 Solonian age, then there is nothing to prevent us from ex- 
 tending the iraXav as far back as that age. 
 
 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 iu 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 z , from which we learn 
 that there really was once a law, fir) eladyeadai SUtjv, ei 
 fir) irporepov i^eTacrdeirj -rrap' aviols (i.e. rot? 8fatT??Tai?) 
 to Trpay/Aa. 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. 
 
 • In the Appendix to the English edition of Photius, p. 673 ; and pub- 
 lished, with Commentary by Meier, Halle 1834, under the title, "Frag- 
 mentum Lexioi Bhetoriei." 
 
54 Schbmann on the Constitutional History of Athens. 
 
 i. (7.) Comparison of Province of earlier and later Dikasteries. 
 
 Now suppose that cantonal judges, public Disetetae, and 
 perhaps Nautodikae as well, existed besides tbe 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 Disetetae ; commercial cases before the Nautodikae ; 
 trivial matters, and Siical aliclas, and fiiaiwv 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 3 . 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 
 
 * The following assertion, taken by Maximus (in the prooem. to Dionys. 
 Areop., Opp. tom.ii. p.xxxiv.)fromAndrotionandPhilochorus, alludes to the 
 time before the restriction of the Areopagus, effected by Ephialtes. Muller, 
 Fragmenta Hist. Grasc, Philochorus, p. 17, [Case, Materials', &c, p. 11,] 
 eSiKafbj' oZv 01 Apeonaynai irepl ■x&vtiuv ax&bv ruv <r<pa\fidTa>j/ nal Trapa.vop.iwv, 
 &s (pT\trtv 'AvSporiay iv irpdrrj koX $t\6xopos 4v dcvrzpa teal rpirrj ruv 'ArdiSoiv. 
 Cf. Bb'ckh 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 Ephetae (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 Schdmann on the Constitutional History of Athens. 
 
 traduction 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.) Nomotheta 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 1 ', 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 Nomothetse. The Nomothetae were members of 
 the Helisea, 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. 
 
 The proposed measures had been made accessible to every 
 one's observation by their exhibition near the Eponymi. 
 Nevertheless, before the Nomothetae 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 JSTomothetse 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 kot& Ti/iOKpirovs, p. 705, SS. 
 
58 Schdmann 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. 
 
 (/3.) Nomothetcs in Solon's time not improbable. 
 
 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 Nomothetse 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 c the pro- 
 cedure before Nomothetse 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 
 Nomothetae, 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, .ZEschines 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 
 
 c De Comitiig Ath., 265, ss. 
 
Solon. 59 
 
 devolving on the mass of the people as it conies 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," (to? e<ya> irvvQa- 
 vo/j,at,) 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 
 
 * Dem. o. Timokr., p. 744, in Leptinem, p. 484 f. 
 
60 Schomann 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 Nomotheta. 
 
 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 Nbmothetse 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 e , in saying 
 e 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. 
 
 Finally, we come to his main argument; "Solon," we 
 read in the margin ( , " never contemplated the future change 
 or revision of his own laws;" and the text s says, "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 11 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. Plutarch 1 informs us that he 
 gave to his laws force for a century absolute." " Gellius k ," 
 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- 
 'Yol.ii. p. 325, partii. o.ll. elb. h i. 29. > Solon, c. 25. k ii.l2. 
 
62 Schbmann on the Constitutional History of Athens. 
 
 manence of his laws. The statements of Plutarch, and 
 & 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 1 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" 1 ." 
 
 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 
 
 1 Solon, c. 15. m Grote, vol. vi. 39, part ii. c. 67. " c. 7. 
 
Solon. 63 
 
 he renounced his friendship with Solon, because the latter 
 had said that laws must be subject to change (rovs vo/jlovs 
 /j.eTaicivTjTov'} elvat)." 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., Kara Tt/jioicp., 744, and more in Heyne 
 Opusc. acad. ii. p. 30. 
 
64 Schomann 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 Nomothetse ; 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 5 ; 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 
 Nomothetse as Solonian, though it was not Solonian in the 
 form in which they knew it. 
 
 § 6. KXEISTHENES. 
 
 (a.) Kleisthenes made only 100 Denies. 
 
 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- 
 
 '' Kaia. TtftoKpirovs, 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 q , 
 no other interpretation of the words of Herodotus, 5. 69, 
 Beica Be ical tovs Btf/xovs KaTeveo/jue e? tAs <f>v\ds, 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 Beica tovs Btffiovs Kareveifie is ra? <f>v\d<;, was put for 
 rods Sijfiovs KaTevetfie es Tas Beicci (fiv\d<;, 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 r , "as 
 the least difficulty in the case, to construe Beica with ^>u\a?, 
 and not with Bi]/j,ovs." Of the only correct construction, 
 he says B , " 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 ; aud 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. Hermaun's opinion ', 
 
 ' The same view is taken by Eoss " Demen von Attika," Halle, 1846, p. 3. 
 Westeimann in the Zeitschr. f. d. Alterthiimswiss, 1848, p. 37, and in 
 Pauly's Eealeneyklop., 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 5e'/ca may be taken with Kardneine, in the 
 sense of Sexa nepn, 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).] 
 
 ■ Vol. iii. p. 113, part ii. e. 31. ' Staatsalterthiimer, iii. 12. The 
 
 later editor agrees with Schumann. 
 
 F 
 
66 Schbmann on the Constitutional History of Athens. 
 
 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 u , 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 
 
 - Yol. ill. 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 
 heroes x - 
 
 The hundred newly -organized administrative districts 
 were called Sfjfioi; 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 Phylse ; a cir- 
 cumstance which, as far as I know, I was the first to draw 
 attention to y . 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, v. fwv. \e£., 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. Hi. p. 113. 
 
 f2 
 
68 Schomann 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 Pseania, an Upper and 
 a Lower Paeania ; 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. 
 
 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 2 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- 
 
 1 See Demosthenes on the Symmories, p. 184. iEsch. Ctes., p. 425. 
 Plat. Bepubl., v. p. 475, belongs to this subject too, for he mentions the 
 Trittyarohs as subordinate commanders, under the Strategi. 
 
 » Of course, no one is likely to notice the absurdities of Michael Psellus, 
 p. 103. Boiss. Kteitrdzi'ris els Tpi&Kovra fioipas tV 'Attik^v airaaav Siaveifias, 
 iireiSfy rb fiev auTJJs ziriBaXaTTiSiov fy, rb Se Traps rb fioru avv&TTpuTo, beaa 
 p.ev /ioipas ry irapa\itf ffwerevxe, 5e«a 5e /caT«TT7j<r€c els t^jv ikeaiyeiov, Se/ca Be 
 &.<!Tvv6ij.ovs eirolt]ae, Kai t!> Tpirri/xopioy rpmbs wvifiacrTO. 
 
Kleisthenes. 69 
 
 son for denying to him, as Mr. Grote b 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 d , and this coincidence can hardly be 
 regarded as accidental. Mr. Grote e thinks it " hardly pro- 
 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. 
 
 Kleisthenes' received into his newly-formed ten tribes 
 a great number of people, who had previously not been 
 citizens; iroXkoix; yap i(f>v\eTevae fjevovs ical Sovkovs fier- 
 oikovs, are the words as they stand in Aristotle g ; 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 h holds it to be sound, 
 and thinks that SovXoi fieroiKoi, as opposed to fjevoi fieroUoi, 
 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 1 , in 
 a state between slavery and freedom^, 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. u. 10. c iv. 89. d Cf. Case, " Materials, &c," 
 
 p. 19 and 20. e 1. a. ' Cf. Case, " Materials, &c. ," p. 17, ff. 
 
 « Polit. iii. 1. 10. h Vol. iii. p. 109 and 10, part ii. c. 31. ' %aph 
 
 oiKovnes, omitted by Schbmann. *■ These words omitted by Schbmann. 
 
70 Schbmann 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 (Meier ' has 
 also taken §ov\oi as freedmen in this place), though the 
 expression SovXot fieroiKot, 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 %£vol fieroi/cot, 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 
 Phylse, 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 ra , 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 11 , 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 Phylse of 
 the old citizens, were "native Athenians," but yet, down 
 
 1 De Gentil. Attica, p. 6. » Vol. ii. p. 332, part ii. c. 11. 
 
 u [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.] 
 
 ° [In c. 31, Mr. Grote denies them this right for the period before Kleis- 
 thenes, though in u. 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.] 
 
Kleisthsnes. 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 Metceki : that there ever was an intervening 
 class between Metoeki and full citizens, is nothing but a 
 fancy of Mr. Grote's. 
 
 (d.) Difference between Orgeones and Genneta. 
 
 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 Phylas; 
 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. Isseus, Mr. Grote says p, " uses 6p<ye- 
 &ves as synonymous with yevvryrai." The expression is 
 incorrect; it would be more correct to say, that Isaeus 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 q , where he is speaking of the introduc- 
 tion of an adopted son among the Orgeones of his adoptive 
 father. Everywhere else Isseus, like the other orators, 
 calls the members of a Gens yevvrjTai; 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. o. 10. "» Or. ii. 14. 
 
72 Schbmann 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 yevr), 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 r . 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- 
 
 r 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 Kleisthenes s , 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 (Oheirotonia) 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. 
 
 (/) 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 u , 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. « vi. 109. u De comit. Athen. 311. 
 
'4 Schomann on the Constitutional History of Athens. 
 
 the college of nine Archons) at the battle of Marathon as 
 selected^by lot (icvafiw \ax<bv). " I cannot but think," says 
 Mr. Grote T , "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." 
 
 Against this view, the following facts must be borne in 
 mind. Mr. Grrote 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 Strategic 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. Gfrote, in another part 
 of his work a , 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, evUa rj %eCpa>v r&v <yva/j,emv. Then the 
 
 • Vol. iii. p. 126, note, part ii. o. 31. * vi. 109. t lb. 103. 
 
 2 lb. 110. * Vol. ir. 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 Schbmann on the Constitutional History of Athens. 
 
 So much for Mr. Grote's first argument. Now let us con- 
 sider what he says next b . 
 
 " 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 conjeotura. 
 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 hot all by lot; and 
 he expressly says of Miltiades, a-i-par^yo? aTreSi^d?) aipe8eU 
 vtto rov Bijfiov c . 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 
 
 >> VoL iii. p. 126, note, c. 31. c vi. 104. 
 
Kleisthenes. 77 
 
 conflicting authorities are mentioned without being well 
 discriminated 3 , 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, — ov Kva- 
 fievTov aXX 1 eXopipcop 'A6r)vaiwv, (Plutarch, Arist. c. 1)." 
 Thus Mr. Grrote 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 Schomann has above translated Grote's words, " without 
 being well discriminated." Schb'mann'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, Schomann's argument from 
 Grote's admission is destroyed; but his examination of the passage in 
 Plutarch holds good.] 
 
78 Schomann on the Constitutional History of Athens. 
 
 could in any case only occur in a passing observation. 
 According to Sintenis' careful judgment f , the specimens 
 of his writing which occur in Plutarch and Athenseus are 
 such " ut gravem quidem ac fide dignum scriptorem minime 
 deceant." And Luzac's judgment on him is equally un- 
 favourable g . 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 P 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, irdvv 
 •KiQavbv iariv eTTi Bogy Tocravrrj kclI KwropOmfiatn Tt]\ucovTots 
 afjiaOfjvai 6V aperrjV, ?js Sid ifKovrov 6TV<y%avov ol \ay%d- 
 vovres. 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 e/c ira- 
 Xaiov, that is, long before Perikles, which quite suits the 
 time of Kleisthenes, but not the times after the battle of 
 Platsea, to which Mr. Grote is inclined to transfer its intro- 
 duction. For the interval between the battle of Platsea 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. 
 
 ' Hut. Perikles, p. 320. e Leet. Att., p. 114. 
 
Kleisthenes, 79 
 
 Lastly, Mr. Grote h 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 k 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 1 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." 
 
 Not to omit any argument which Mr. Grote relies upon, we 
 must here look for a moment at what he brings forward in 
 his text n , 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 
 Platsea, 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 : <ypd<pet, y}njipicrfj,a, koivtjv elvat, ttjv ttoKi- 
 reiav teal roiis apj(pvras e'£ 'A&Tjvaiwp irdvTcov aipeicrdai. 
 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 
 
 1 iii. 126 n. ' Isoir., Areopag., p. 144 (Seott., 21—23). k Sec. 16. 
 
 1 The Appendix alluded to does not appear in the second edition. "> Vol. 
 iv. p. 106, part ii. e. 46. " iii. 125, c. 31. ° Aristeides, c. 22. 
 
80 Schomann 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 alpeltrffai is taken as a proof 
 of it. Ought Plutarch to have said K\rjpova-0ai ? 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 r/ KKijpm fj ^eiporovia 
 alpetadai ? 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 Platsea; 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 
 impossibleat 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 Platsea ; 
 be ascribes it to Perikles, not to Kleisthenes. "We have," 
 he says i, " 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 
 p But see note e, p. 77, sup. ? iv. 101, part ii. c. 46. 
 
Kleisthenes. 81 
 
 question has, however, another and a very different side, and 
 if we consider that other side, the introduction of the lot hy 
 Kleisthenes will no longer seem so incredible. We know 
 from Aristotle 1 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 
 Hersea, 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 ofiice 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 ofiices; 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 ofiices for which citizenship 
 etc Tpuyovlas 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. 
 
82 Schbmann 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. 
 
 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. Grrote 3 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 4 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 11 - 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 x , 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 
 
 ■ jii. 128, o. 31, ' Solon, o. 19. u ii. 323, c. 11. * In the 
 
 fragment of the rhetorical Lexicon that follows PhotiuB, p. 674. Engl, 
 edition. 
 
Klei&thenes. 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 ; Kaikvovres ra 
 davfj,(f>opa rrj iroXei wpdrreiv. 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 2 , until it came 
 
 y iii. 128. 
 
 1 Schb'mann, "Die nunmehr eingetretene StaatsYeranderung," which 
 perhaps represents what Grote must have meant, i.e. the predominance 
 of a new and opposed party in the government. 
 
 g2 
 
84 Schbmann 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 tbat 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" the 
 Areopagus gained a high reputation at the time of the 
 Persian war, and so came to impart to the state a stricter 
 (owTovcorepav, 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. 
 
 ■ 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 b , 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 c 
 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 d 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 
 
 i> iii. 128. c iii. 137. d [Grote enumerates the cases, 
 
 and oomments on some of them, iii. 137, 8.] 
 
86 Schdmann 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. 
 
 («'.) 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 e 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 
 Nesera, p. 1375 f . 
 
 ' iii. 133. 
 
 1 As regards the ostracism, Bb'ckh, 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. Gissc, p. 233. 
 
Changes between Kleisthenes and Perikks. 87 
 
 (k.) Kleisthenes' Reforms not before 507 b.c. 
 
 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 t as 
 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 Herodotus 1 , 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 Herodotus k , 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. 
 
 § 7. Changes between Kleisthenes and Pekikles. 
 
 We hear of no constitutional changes in the interval 
 between Kleisthenes and Perikles, excepting that proposed 
 by Aristeides soon after Platsea, which made the offices of 
 state, with some few exceptions, thenceforth accessible to 
 all citizens not specially disfranchised, without* distinction 
 
 z iii. 128. h Bockh, C. I. ii. 318. 
 
 1 t. 69. k lb., c.72. 
 
88 Schomann 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 '. 
 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- 
 inistokles had made Athens essentially a maritime state, 
 and a second town was founded in Peirseus, 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 m - 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 11 , 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 Nomothetse, 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 ypa^rj irapavofiav 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. Ill and 123, c. 46. » iv. 102, [Grote does not say they 
 
 were first appointed under Perikles] . ° iv. 116. f iv. 118. 
 
90 Schomann 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 i says that the opinion which represents " the 
 popular Dikasteries, and the Nomothetae, 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 Helisea 
 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 Helisea ; viz., the 
 Areopagus with more extensive powers, the judges of first 
 instance, the cantonal judges, and the Disetetse, so that 
 I need only refer to what has been said. For as for Mr. 
 Grote's transference of the establishment of Disetetse 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 Nomotheta?, Mr. Grote himself admits 8 that this in- 
 i iv. 123. r [Does Grote make it? see n. .u. p. 89, sup.] ■ is, 116. 
 
Perikles. °1 
 
 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 Nomothetse 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 <ypa<j>r) •jrapavopwv is denied to the pre-Periklean age, 
 with as little justice as the Homothetse. 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 Helia3a, 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 Helisea, pronounced upon charges 
 
 ' iv. 103. 
 
92 Schomann on the Constitutional History of Athens. 
 
 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 .... cannot be 
 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 fi. 
 
Perikles. 93 
 
 otter 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 "Phasis," for 
 instance, was tried according to Pollux before 400 judges, 
 if it concerned an amount of more than 1,000 drachmae, 
 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 Helisea 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 Bockh 
 has made extremely probable, even if he has not proved 
 it to demonstration. Mr. Grote x 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, o. 46. 
 
94 Schomann 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.) A iical airb o-vfiftoXwv 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. Grrote supposes, with great proba- 
 bility, that at the first foundation of the Athenian sym- 
 machy, a court of justice was established besides 2 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 crvfj,/3o\a. We may there- 
 fore say that the confederates had not merely a avfifiaxla, 
 but also <rvfifio\a with each other ; and not merely a crvve- 
 Bpiov, but also a koivoBIklov at Delos. So later, when the 
 Synedrion was transferred to Athens, together with the 
 confederate treasury, the koivoBlkiov 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 koivoBlkiov of Delos had followed, 
 served, or were meant to serve, as the guide of the Athenian 
 
 r iv. 175 ff. c. 47. z [Bather, that the Synedrion acted as a court 
 
 of justice.] 
 
Perikks. 95 
 
 courts; such suits, therefore, might continue to be called 
 SUcu airb avfifioXav. 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 ov/tfidka had no relation 
 whatever to such cases. 
 
 So I still hold, as before", 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 b . 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 SUcu ano crv/j,{36\a>v." 
 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 SUai airb <jvji- 
 /36\g>i>. 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 Bockh" 
 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 o-vfij3o\a 
 existing between Athens and independent foreign states. 
 That there were <7i5/*/3o\a in virtue of which the plaintiff 
 
 > Att. Proo. 779. " De Csede Herodia, 745. « Staatsh. i. 530. 
 
96 Schbmann on the Constitutional History of Athens.' 1 
 
 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 Eevision 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 e , 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 f also 
 represents the case; but it cannot possibly be the right 
 
 d V. d. Diat. 125. e -vi. 5, e. 66. « 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 B . 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 Nomothetse 
 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 : e'i\e<rde av&pa? e'l/cocrt,' tovtovs 
 Se iTrifieXelcrdat ttjs TroXecos, ea>? av ol vofioi, redeiev Teas 
 Be xprjcrOat, tols SoXtovos voftois teal toIs Apatcovros Oeo-fiols' 
 for «o? av ol vofiot Tedeiev 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 
 
 e To save my readers the trouble of reference, I add the psephism itself, 
 from Andok. de Mysteriis, 83, "E5o£e t£ d^pup- TtadpLtvos eiire - iroAweiWflai 
 'Adrjvaiovs Kara ra irdrpia, v6fiois 8e xpycrdaL tois ~2,6\<avos Kal p.erpois Kal 
 ffTO.Qp.OLS, Xpri&Qai 5e Kal to?s ApaKovros deafiots, olffirep £%pc&[ie8a eV rep irp6o~Q<=v 
 Xphvip. 6n6tTwf 8' t\v irpoaderj, ol 5e (probably ol ijSri) rjpripiei'oi vofioderai inrb 
 ttjs /2ov\tjs avaypdtpoyres ev ffaviffiv etcTtOevTui* irpbs tovs £ira>vup.ous cKoneiy 
 Tip fiov\op.epip, Kal irapa.Zi56vTatv tois apxais Iv TipSe Tip p.r,vl. robs 5e TrapaSi- 
 Sofievovs v6fiovs fioKifiaaaTU Trpkrzpov t\ 0ov\1} Kal ol yofioderai ol Trei'TaK6inoL, 
 otts ol Stj^^toi e'l\ovro, 4iretS^i op.up.6Kao if. ££e7vai Se Kal l$it*ny Tip /3ov\op.4yip 
 eialovTi els t))v 0ov\i)y ovp.f$ov\eieiy, '6 ti tai ayaBbv %XV ,re P' ™ > ' "4" 1 *"'- eTieiiav 
 Se TeBixru/ ol v6p.oi iwt/ieKetaSa t) fiov\i) 7) it- 'Apelov Trdyov t&v v6puv, oirws 
 \\v at apxal rols kuiUvois vdpois xp&vTat. robs 5e Kvpovp.4vovs twv v6p.oiv avaypd- 
 ipeiv els tbp to1x ov i '^ a "ftp irporepov aveypdipfiffav, ffKoireiv Tip fiov\op.hip. 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 Schomann 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 Nomothetse 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 Demotae. 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 
 Nomothetae. This is clearly the most probable view; but 
 it has already been put forward by C. P. Hermann \ 
 
 § 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 ' 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 ^Egean sea. This must 
 have tended materially to encourage intermarriages between 
 them and the women of other Grecian insular states; and 
 
 k In the Jahrb. f. wissensoh. Eritik. 1842, i. p. 128. ' vi. 18, o. 66. 
 
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 11 , democracies in which all sons of citizen mothers 
 ranked as citizens, even if the fathers were aliens. He 
 tells 1 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 m 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- 
 
 k Pol., iii. 5. 7. ' Pol. , vi. 4. 16. » vi. 18. 
 
 » [This would mean, where either husband only or wife only were citizens. 
 Grote does not include the latter case.] 
 
100 Schomann on the Constitutional History of Athens. 
 
 termaim has made it very probable tbat 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 Lacedsemonians, still 
 we may assert with confidence that he did not make it in 
 order to please them, but from a genuine conviction, and 
 
 Beitrage zur Geschichte des athenischen Biirgerrechts, in the reports 
 of the Transactions of the K. Sachs. Gesellschaft d. Wissensch. philol. histor. 
 CI. vol. i. p. 200 ft. r Lysias, c. 32. 
 
Proposal of Phormisius. 101 
 
 with patriotic motives. Mr. Grotei 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 r ," 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 8 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. 
 
 Oligarchy differs toto ccelo 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* 
 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 
 
 i Vol. vi. p. 5, e. 66. ' Id. ib. » Xen. Hell., ii. 4. 40. 
 
 ' iv. 290, o. 49. 
 
102 Schomann 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 u , 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' x opinion, when he says that democracy never 
 made any people great except the Athenians, and it had 
 
 * iY. 35. 3. 
 
104 Schomann 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 y, rest to a great extent on the 
 authority of passages of Aristophanes, which cannot possibly 
 pass as credible evidence, where the object is to obtaia 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 
 Arginusse, 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 
 * yi. 38, note, c. 67. 
 
Estimate of the Athenian Democracy. 105 
 
 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, 
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 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 
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 Mr. Grote's account of the history of the Athenian con- 
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 appeared to me incorrect. I desired to contribute my 
 share to prevent false views, recommended by his autho- 
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 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 ; 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 
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 to afford me. 
 
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