[215] Herodot. v, 69. τὸν Ἀθηναίων δῆμον, πρότερον ἀπωσμένον πάντων, etc.
[216] Herodot. v, 66-69. Οὗτοι οἱ ἄνδρες (Kleisthenês and Isagoras) ἐστασίασαν περὶ δυνάμεως· ἑσσούμενος δὲ ὁ Κλεισθένης τὸν δῆμον προσεταιρίζεται ...
... Ὡς γὰρ δὴ τὸν Ἀθηναίων δῆμον, πρότερον ἀπωσμένον πάντων, τότε πρὸς τὴν ἑωϋτοῦ μοίρην προσεθήκατο, (Kleisthenês) τὰς φυλὰς μετωνόμασε ... ἦν δὲ, τὸν δῆμον προσθέμενος πολλῷ κατύπερθε τῶν ἀντιστασιώτεων.
As to the marked democratical tendency of the proceedings of Kleisthenês, see Aristot. Polit. vi, 2, 11; iii, 1, 10.
[217] Lysias cont. Theomnest. A. c. 5, p. 357, who gives ἐὰν μὴ προστιμήσῃ ἡ Ἡλίαια as a Solonian phrase; though we are led to doubt whether Solon can ever have employed it, when we find Pollux (vii, 5, 22) distinctly stating that Solon used the word ἐπαίτια to signify what the orators called προστιμήματα.
The original and proper meaning of the word Ἡλίαια is, the public assembly (see Tittmann, Griech. Staatsverfass. pp. 215-216); in subsequent times we find it signifying at Athens—1. The aggregate of six thousand dikasts chosen by lot annually and sworn, or the assembled people considered as exercising judicial functions; 2. Each of the separate fractions into which this aggregate body was in practice subdivided for actual judicial business. Ἐκκλησία became the term for the public deliberative assembly properly so called, which could never be held on the same day that the dikasteries sat (Dêmosthen. cont. Timokrat. c. 21, p. 726): every dikastery is in fact always addressed as if it were the assembled people engaged in a specific duty.
I imagine the term Ἡλίαια in the time of Solon to have been used in its original meaning,—the public assembly, perhaps with a connotation of employment in judicial proceeding. The fixed number of six thousand does not date before the time of Kleisthenês, because it is essentially connected with the ten tribes; while the subdivision of this body of six thousand into various bodies of jurors for different courts and purposes did not commence, probably, until after the first reforms of Kleisthenês. I shall revert to this point when I touch upon the latter, and his times.
[218] The statement of Plutarch, that Solon gave an appeal from the decision of the archon to the judgment of the popular dikastery (Plutarch, Solon, 18), is distrusted by most of the expositors, though Dr. Thirlwall seems to admit it, justifying it by the analogy of the ephetæ, or judges of appeal, constituted by Drako (Hist. of Greece, vol. ii, ch. xi, p. 46).
To me it appears that the Drakonian ephetæ were not really judges in appeal: but be that as it may, 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 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. Plutarch’s comparison of Solon with Publicola leads to this suspicion,—Καὶ τοῖς φεύγουσι δίκη, ἐπικαλεῖσθαι τὸν δῆμον, ὥσπερ ὁ Σόλων τοὺς δικαστὰς, ἔδωκε (Publicola). The Athenian archon was first a judge without appeal; and afterwards, ceasing to be a judge, he became president of a dikastery, performing only those preparatory steps which brought the case to an issue fit for decision: but he does not seem ever to have been a judge subject to appeal.
It is hardly just to Plutarch to make him responsible for the absurd remark that Solon rendered his laws intentionally obscure, in order that the dikasts might have more to do and greater power: he gives the remark, himself, only with the saving expression λέγεται, “it is said;” and we may well doubt whether it was ever seriously intended even by its author, whoever he may have been.