Οὐ γὰρ τοιούτων οὕνεκ᾽ ὄστραχ᾽ ηὑρέθη.
Theophrastus had stated that Phæax, and not Nikias, was the rival of Alkibiadês on this occasion, when Hyperbolus was ostracized; but most authors, says Plutarch, represent Nikias as the person. It is curious that there should be any difference of statement about a fact so notorious, and in the best-known time of Athenian history.
Taylor thinks that the oration which now passes as that of Andokidês against Alkibiadês, is really by Phæax, and was read by Plutarch as the oration of Phæax in an actual contest of ostracism between Phæax, Nikias, and Alkibiadês. He is opposed by Ruhnken and Valckenaer (see Sluiter’s preface to that oration, c. 1, and Ruhnken, Hist. Critic. Oratt. Græcor. p. 135). I cannot agree with either: I cannot think with him, that it is a real oration of Phæax; nor with them, that it is a real oration in any genuine cause of ostracism whatever. It appears to me to have been composed after the ostracism had fallen into desuetude, and when the Athenians had not only become somewhat ashamed of it, but had lost the familiar conception of what it really was. For how otherwise can we explain the fact, that the author of that oration complains that he is about to be ostracized without any secret voting, in which the very essence of the ostracism consisted, and from which its name was borrowed (οὔτε διαψηφισαμένων κρυβδὴν, c. 2)? His oration is framed as if the audience whom he was addressing were about to ostracize one out of the three, by show of hands. But the process of ostracizing included no meeting and haranguing,—nothing but simple deposit of the shells in a cask; as may be seen by the description of the special railing-in of the agora, and by the story (true or false) of the unlettered country-citizen coming into the city to give his vote, and asking Aristeidês, without even knowing his person, to write the name for him on the shell (Plutarch, Aristeid. c. 7). There was, indeed, previous discussion in the senate as well as in the ekklesia, whether a vote of ostracism should be entered upon at all; but the author of the oration to which I allude does not address himself to that question; he assumes that the vote is actually about to be taken, and that one of the three—himself, Nikias, or Alkibiadês—must be ostracized (c. 1). Now, doubtless, in practice, the decision commonly lay between two formidable rivals; but it was not publicly or formally put so before the people: every citizen might write upon the shell such name as he chose. Farther, the open denunciation of the injustice of ostracism as a system (c. 2), proves an age later than the banishment of Hyperbolus. Moreover, the author having begun by remarking that he stands in contest with Nikias as well as with Alkibiadês, says nothing more about Nikias to the end of the speech.
[272] See the discussion of the ostracism in Aristot. Politic. iii, 8, where he recognizes the problem as one common to all governments.
Compare, also, a good Dissertation—J. A. Paradys, De Ostracismo Atheniensium, Lugduni Batavor. 1793; K. F. Hermann, Lehrbuch der Griechischen Staatsalterthümer, ch. 130; and Schömann, Antiq. Jur. Pub. Græc. ch. xxxv, p. 233.
[273] Plutarch, Aristeid. c. 3.
[274] The barathrum was a deep pit, said to have had iron spikes at the bottom, into which criminals condemned to death were sometimes cast. Though probably an ancient Athenian punishment, it seems to have become at the very least extremely rare, if not entirely disused, during the times of Athens historically known to us; but the phrase continued in speech after the practice had become obsolete. The iron spikes depend on the evidence of the Schol. Aristophan. Plutus, 431,—a very doubtful authority, when we read the legend which he blends with his statement.
[275] Thucyd. iii, 70, 81, 82.
[276] Andokidês, De Mysteriis, p. 12, c. 13. Μηδὲ νόμον ἐπ᾽ ἀνδρὶ ἐξεῖναι θεῖναι, ἐὰν μὴ τὸν αὐτὸν ἐπὶ πᾶσιν Ἀθηναίοις· ἐὰν μὴ ἑξακισχιλίοις δόξῃ, κρυβδὴν ψηφιζομένοις. According to the usual looseness in dealing with the name of Solon, this has been called a law of Solon (see Petit. Leg. Att. p. 188), though it certainly cannot be older than Kleisthenês.
“Privilegia ne irroganto,” said the law of the Twelve Tables at Rome (Cicero, Legg. iii, 4-19).