Of the nine archons, whose number continued unaltered from 638 B. C. to the end of the free democracy, three bore special titles,—the archon eponymus, from whose name the designation of the year was derived, and who was spoken of as The Archon; the archon basileus (king), or more frequently, the basileus; and the polemarch. The remaining six passed by the general title of Thesmothetæ. Of the first three, each possessed exclusive judicial competence in regard to certain special matters: the thesmothetæ were in this respect all on a par, acting sometimes as a board, sometimes individually. The archon eponymus determined all disputes relative to the family, the gentile, and the phratric relations: he was the legal protector of orphans and widows.[125] The archon basileus, or king archon, enjoyed competence in complaints respecting offences against the religious sentiment and respecting homicide. The polemarch, speaking of times anterior to Kleisthenês, was the leader of the military force and judge in disputes between citizens and non-citizens. Moreover, each of these three archons had particular religious festivals assigned to him, which it was his duty to superintend and conduct. The six thesmothetæ seem to have been judges in disputes and complaints, generally, against citizens, saving the special matters reserved for the cognizance of the first two archons. According to the proper sense of the word thesmothetæ, all the nine archons were entitled to be so called,[126] though the first three had especial designations of their own: the word thesmoi, analogous to the themistes[127] of Homer, includes in its meaning both general laws and particular sentences,—the two ideas not being yet discriminated, and the general law being conceived only in its application to some particular case. Drako was the first thesmothet who was called upon to set down his thesmoi in writing, and thus to invest them essentially with a character of more or less generality.
In the later and better-known times of Athenian law, we find these archons deprived in great measure of their powers of judging and deciding, and restricted to the task of first hearing the parties and collecting the evidence, next, of introducing the matter for trial into the appropriate dikastery, over which they presided. Originally, there was no separation of powers: the archons both judged and administered, sharing among themselves those privileges which had once been united in the hands of the king, and probably accountable at the end of their year of office to the senate of areopagus. It is probable also, that the functions of that senate, and those of the prytanes of the naukrars, were of the same double and confused nature. All of these functionaries belonged to the eupatrids, and all of them doubtless acted more or less in the narrow interest of their order: moreover, there was ample room for favoritism, in the way of connivance as well as antipathy, on the part of the archons. That such was decidedly the case, and that discontent began to be serious, we may infer from the duty imposed on the thesmothet Drako, B. C. 624, to put in writing the thesmoi, or ordinances, so that they might be “shown publicly,” and known beforehand.[128] He did not meddle with the political constitution, and in his ordinances Aristotle finds little worthy of remark except the extreme severity[129] of the punishments awarded: petty thefts, or even proved idleness of life, being visited with death or disfranchisement.
But we are not to construe this remark as demonstrating any special inhumanity in the character of Drako, who was not invested with the large power which Solon afterwards enjoyed, and cannot be imagined to have imposed upon the community severe laws of his own invention. Himself of course an eupatrid, he set forth in writing such ordinances as the eupatrid archons had before been accustomed to enforce without writing, in the particular cases which came before them; and the general spirit of penal legislation had become so much milder, during the two centuries which followed, that these old ordinances appeared to Aristotle intolerably rigorous. Probably neither Drako, nor the Lokrian Zaleukus, who somewhat preceded him in date, were more rigorous than the sentiment of the age: indeed, the few fragments of the Drakonian tables which have reached us, far from exhibiting indiscriminate cruelty, introduce, for the first time, into the Athenian law, mitigating distinctions in respect to homicide;[130] founded on the variety of concomitant circumstances. He is said to have constituted the judges called Ephetæ, fifty-one elders belonging to some respected gens or possessing an exalted position, who held their sittings for trial of homicide in three different spots, according to the difference of the cases submitted to them. If the accused party, admitting the fact, denied any culpable intention and pleaded accident, the case was tried at the place called the palladium; when found guilty of accidental homicide, he was condemned to a temporary exile, unless he could appease the relatives of the deceased, but his property was left untouched. If, again, admitting the fact, he defended himself by some valid ground of justification, such as self-defence, or flagrant adultery with his wife on the part of the deceased, the trial took place on ground consecrated to Apollo and Artemis, called the Delphinium. A particular spot called the Phreattys, close to the sea-shore, was also named for the trial of a person, who, while under sentence of exile for an unintentional homicide, might be charged with a second homicide, committed of course without the limits of the territory: being considered as impure from the effects of the former sentence, he was not permitted to set foot on the soil, but stood his trial on a boat hauled close in shore. At the prytaneium, or government-house itself, sittings were held by the four phylo-basileis, or tribe-kings, to try any inanimate object (a piece of wood or stone, etc.) which had caused death to any one, without the proved intervention of a human hand: the wood or stone, when the fact was verified, was formally cast beyond the border.[131] All these distinctions of course imply the preliminary investigation of the case, called anakrisis, by the king-archon, in order that it might be known what was the issue, and where the sittings of the ephetæ were to be held.
So intimately was the mode of dealing with homicide connected with the religious feelings of the Athenians, that these old regulations were never formally abrogated throughout the historical times, and were read engraved on their column by the contemporaries of Dêmosthenês.[132] The areopagus continued in judicial operation, and the ephetæ are spoken of as if they were so, even through the age of Dêmosthenês; though their functions were tacitly usurped or narrowed, and their dignity impaired,[133] by the more popular dikasteries afterwards created. It is in this way that they have become known to us, while the other Drakonian institutions have perished: but there is much obscurity respecting them, particularly in regard to the relation between the ephetæ and the areopagites. Indeed, so little was known on the subject, even by the historical inquirers of Athens, that most of them supposed the council of areopagus to have received its first origin from Solon: and even Aristotle, though he contradicts this view, expresses himself in no very positive language.[134] That judges sat at the areopagus for the trial of homicide, previous to Drako, seems implied in the arrangements of that lawgiver respecting the ephetæ, inasmuch as he makes no new provision for trying the direct issue of intentional homicide, which, according to all accounts, fell within the cognizance of the areopagus: but whether the ephetæ and the areopagites were the same persons, wholly or partially, our information is not sufficient to discover. Before Drako, there existed no tribunal for trying homicide, except the senate, sitting at the areopagus, and we may conjecture that there was something connected with that spot,—legends, ceremonies, or religious feelings,—which compelled judges there sitting to condemn every man proved guilty of homicide, and forbade them to take account of extenuating or justifying circumstances.[135] Drako appointed the ephetæ to sit at different places; and these places are so pointedly marked, and were so unalterably maintained, that we may see in how peculiar a manner those special issues, of homicide under particular circumstances, which he assigned to each, were adapted, in Athenian belief, to the new sacred localities chosen,[136] each having its own distinct ceremonial and procedure appointed by the gods themselves. That the religious feelings of the Greeks were associated in the most intimate manner with particular localities, has already been often remarked; and Drako proceeded agreeably to them in his arrangements for mitigating the indiscriminate condemnation of every man found guilty of homicide, which was unavoidable so long as the areopagus remained the only place of trial. The man who either confessed, or was proved to have shed the blood of another, could not be acquitted, or condemned to less than the full penalty (of death or perpetual exile, with confiscation of property) by the judges on the hill of Arês, whatever excuse he might have to offer: but the judges at the palladium and delphinium might hear him, and even admit his plea, without contracting the taint of irreligion. Drako did not directly meddle with, nor indeed ever mention, the judges sitting in areopagus.
In respect to homicide, then, the Drakonian ordinances were partly a reform of the narrowness, partly a mitigation of the rigor, of the old procedure; and these are all that have come down to us, having been preserved unchanged from the religious respect of the Athenians for antiquity on this peculiar matter. The rest of his ordinances are said to have been repealed by Solon, on account of their intolerable severity. So they doubtless appeared, to the Athenians of a later day, who had come to measure offences by a different scale; and even to Solon, who had to calm the wrath of a suffering people in actual mutiny.
That under this eupatrid oligarchy and severe legislation the people of Attica were sufficiently miserable, we shall presently see, when I recount the proceedings of Solon: but the age of democracy had not yet begun, and the government received its first shock from the hands of an ambitious eupatrid who aspired to the despotism. Such was the phase, as has been remarked in the preceding chapter, through which, during the century now under consideration, a large proportion of the Grecian governments passed.
Kylôn, an Athenian patrician, who superadded to a great family position the personal celebrity of a victory at Olympia, as runner in the double stadium, conceived the design of seizing the acropolis and constituting himself despot. Whether any special event had occurred at home to stimulate this project, we do not know: but he obtained both encouragement and valuable aid from his father-in-law Theagenês of Megara, who, by means of his popularity with the people, had already subverted the Megarian oligarchy, and become despot of his native city. Previous to so hazardous an attempt, however, Kylôn consulted the Delphian oracle, and was advised by the god in reply, to take the opportunity of “the greatest festival of Zeus” for seizing the acropolis. Such expressions, in the natural interpretation put upon them by every Greek, designated the Olympic games in Peloponnesus,—to Kylôn, moreover himself an Olympic victor, that interpretation came recommended by an apparent peculiar propriety. But Thucydidês, not indifferent to the credit of the oracle, reminds his readers that no question was asked nor any express direction given, where the intended “greatest festival of Zeus” was to be sought,—whether in Attica or elsewhere,—and that the public festival of the Diasia, celebrated periodically and solemnly in the neighborhood of Athens, was also denominated the “greatest festival of Zeus Meilichius.” Probably no such exegetical scruples presented themselves to any one, until after the miserable failure of the conspiracy; least of all to Kylôn himself, who, at the recurrence of the next ensuing Olympic games, put himself at the head of a force, partly furnished by Theagenês, partly composed of his friends at home, and took sudden possession of the sacred rock of Athens. But the attempt excited general indignation among the Athenian people, who crowded in from the country to assist the archons and the prytanes of the naukrari in putting it down. Kylôn and his companions were blockaded in the acropolis, where they soon found themselves in straits for want of water and provisions; and though many of the Athenians went back to their homes, a sufficient besieging force was left to reduce the conspirators to the last extremity. After Kylôn himself had escaped by stealth, and several of his companions had died of hunger, the remainder, renouncing all hope of defence, sat down as suppliants at the altar. The archon Megaklês, on regaining the citadel, found these suppliants on the point of expiring with hunger on the sacred ground, and to prevent such a pollution, engaged them to quit the spot by a promise of sparing their lives. No sooner, however, had they been removed into profane ground, than the promise was violated and they were put to death: some even, who, seeing the fate with which they were menaced, contrived to throw themselves upon the altar of the venerable goddesses, or eumenides, near the areopagus, received their death-wounds in spite of that inviolable protection.[137]
Though the conspiracy was thus put down, and the government upheld, these deplorable incidents left behind them a long train of calamity,—profound religious remorse mingled with exasperated political antipathies. There still remained, if not a considerable Kylonian party, at least a large body of persons who resented the way in which the Kylonians had been put to death, and who became in consequence bitter enemies of Megaklês the archon, and of the great family of the Alkmæônidæ, to which he belonged. Not only Megaklês himself and his personal assistants were denounced as smitten with a curse, but the taint was supposed to be transmitted to his descendants, and we shall hereafter find the wound reopened, not only in the second and third generation, but also two centuries after the original event.[138] When we see that the impression left by the proceeding was so very serious, even after the length of time which had elapsed, we may well believe that it was sufficient, immediately afterwards, to poison altogether the tranquillity of the state. The Alkmæônids and their partisans long defied their opponents, resisting any public trial,—and the dissensions continued without hope of termination, until Solon, then enjoying a lofty reputation for sagacity and patriotism, as well as for bravery, persuaded them to submit to judicial cognizance,—at a moment so far distant from the event, that several of the actors were dead. They were accordingly tried before a special judicature of three hundred eupatrids, Myrôn, of the deme Phlyeis, being their accuser. In defending themselves against the charge that they had sinned against the reverence due to the gods and the consecrated right of asylum, they alleged that the Kylonian suppliants, when persuaded to quit the holy ground, had tied a cord round the statue of the goddess and clung to it for protection in their march; but on approaching the altar of the eumenides, the cord accidentally broke,—and this critical event, so the accused persons argued, proved that the goddess had herself withdrawn from them her protecting hand and abandoned them to their fate.[139] Their argument, remarkable as an illustration of the feelings of the time, was not, however, accepted as an excuse: they were found guilty, and while such of them as were alive retired into banishment, those who had already died were disinterred and cast beyond the borders. Yet their exile, continuing as it did only for a time, was not held sufficient to expiate the impiety for which they had been condemned. The Alkmæônids, one of the most powerful families in Attica, long continued to be looked upon as a tainted race,[140] and in cases of public calamity were liable to be singled out as having by their sacrilege drawn down the judgment of the gods upon their countrymen.[141]
Nor was the banishment of the guilty parties adequate in other respects to restore tranquillity. Not only did pestilential disorders prevail, but the religious susceptibilities and apprehensions of the Athenian community also remained deplorably excited: they were oppressed with sorrow and despondency, saw phantoms and heard supernatural menaces, and felt the curse of the gods upon them without abatement.[142] In particular, it appears that the minds of the women—whose religious impulses were recognized generally by the ancient legislators as requiring watchful control—were thus disturbed and frantic. The sacrifices offered at Athens did not succeed in dissipating the epidemic, nor could the prophets at home, though they recognized that special purifications were required, discover what were the new ceremonies capable of appeasing the divine wrath. The Delphian oracle directed them to invite a higher spiritual influence from abroad, and this produced the memorable visit of the Kretan prophet and sage Epimenidês to Athens.
The century between 620 and 500 B. C. appears to have been remarkable for the first diffusion and potent influence of distinct religious brotherhoods, mystic rites, and expiatory ceremonies, none of which, as I have remarked in a former chapter, find any recognition in the Homeric epic. To this age belong Thalêtas, Aristeas, Abaris, Pythagoras, Onomakritus, and the earliest provable agency of the Orphic sect.[143] Of the class of men here noticed, Epimenidês, a native of Phæstus or Knossus in Krete,[144] was one of the most celebrated,—and the old legendary connection between Athens and Krete, which shows itself in the tales of Theseus and Minos, is here again manifested in the recourse which the Athenians had to this island to supply their spiritual need. Epimenidês seems to have been connected with the worship of the Kretan Zeus, in whose favor he stood so high as to receive the denomination of the new Kurête[145]—the Kurêtes having been the primitive ministers and organizers of that worship. He was said to be the son of the nymph Baltê; to be supplied by the nymphs with constant food, since he was never seen to eat; to have fallen asleep in his youth in a cave, and to have continued in this state without interruption for fifty-seven years; though some asserted that he remained all this time a wanderer in the mountains, collecting and studying medicinal botany in the vocation of an Iatromantis, or leech and prophet combined. Such narratives mark the idea entertained by antiquity of Epimenidês, the Purifier,[146] who was now called in to heal both the epidemic and the mental affliction prevalent among the Athenian people, in the same manner as his countryman and contemporary Thalêtas had been, a few years before, invited to Sparta to appease a pestilence by the effect of his music and religious hymns.[147] The favor of Epimenidês with the gods, his knowledge of propitiatory ceremonies, and his power of working upon the religious feeling, was completely successful in restoring both health and mental tranquillity at Athens. He is said to have turned out some black and white sheep on the areopagus, directing attendants to follow and watch them, and to erect new altars to the appropriate local deities on the spots where the animals lay down.[148] He founded new chapels and established various lustral ceremonies; and more especially, he regulated the worship paid by the women, in such a manner as to calm the violent impulses which had before agitated them. We know hardly anything of the details of his proceeding, but the general fact of his visit, and the salutary effects produced in removing the religious despondency which oppressed the Athenians, are well attested: consoling assurances and new ritual precepts, from the lips of a person supposed to stand high in the favor of Zeus, were the remedy which this unhappy disorder required. Moreover, Epimenidês had the prudence to associate himself with Solon, and while he thus doubtless obtained much valuable advice, he assisted indirectly in exalting the reputation of Solon himself, whose career of constitutional reform was now fast approaching. He remained long enough at Athens to restore completely a more comfortable tone of religious feeling, and then departed, carrying with him universal gratitude and admiration, but refusing all other reward, except a branch from the sacred olive-tree in the acropolis.[149] His life is said to have been prolonged to the unusual period of one hundred and fifty-four years, according to a statement which was current during the time of his younger contemporary Xenophanês of Kolophon;[150] and the Kretans even ventured to affirm that he lived three hundred years. They extolled him not merely as a sage and a spiritual purifier, but also as a poet,—very long compositions on religious and mythical subjects being ascribed to him; according to some accounts, they even worshipped him as a god. Both Plato and Cicero considered Epimenidês in the same light in which he was regarded by his contemporaries, as a prophet divinely inspired, and foretelling the future under fits of temporary ecstasy: but according to Aristotle, Epimenidês himself professed to have received from the gods no higher gift than that of divining the unknown phenomena of the past.[151]