Such were the two men who stood forward at this time as most conspicuous in Athenian party-contest,—the expanding democracy against the stationary democracy of the past generation, which now passed by the name of oligarchy,—the ambitious and talkative energy spread even among the poor population, which was now forming more and more the characteristic of Athens, against the unlettered and uninquiring valor of the conquerors of Marathon.[676] Ephialtês, son of Sophônidês, was at this time the leading auxiliary, seemingly indeed the equal of Periklês, and no way inferior to him in personal probity, though he was a poor man:[677] as to aggressive political warfare, he was even more active than Periklês, who appears throughout his long public life to have manifested but little bitterness against political enemies. Unfortunately, our scanty knowledge of the history of Athens brings before us only some general causes and a few marked facts: the details and the particular persons concerned are not within our sight: yet the actual course of political events depends everywhere mainly upon these details, as well as upon the general causes. Before Ephialtês advanced his main proposition for abridging the competence of the senate of Areopagus, he appears to have been strenuous in repressing the practical abuse of magisterial authority, by accusations brought against the magistrates at the period of their regular accountability. After repeated efforts to check the practical abuse of these magisterial powers,[678] Ephialtês and Periklês were at last conducted to the proposition of cutting them down permanently, and introducing an altered system.
We are not surprised to find that such proceedings provoked extreme bitterness of party-feeling, and it is probable that this temper may have partly dictated the accusation preferred against Kimon, about 463 B. C., after the surrender of Thasos, for alleged reception of bribes from the Macedonian prince Alexander,—an accusation of which he was acquitted. At this time the oligarchical or Kimonian party was decidedly the most powerful: and when the question was proposed for sending troops to aid the Lacedæmonians in reducing the revolted Helots on Ithômê, Kimon carried the people along with him to comply, by an appeal to their generous feelings, in spite of the strenuous opposition of Ephialtês.[679] But when Kimon and the Athenian hoplites returned home, having been dismissed by Sparta under circumstances of insulting suspicion, as has been mentioned in the preceding chapter, the indignation of the citizens was extreme: they renounced their alliance with Sparta, and entered into amity with Argos. Of course the influence of Kimon, and the position of the oligarchical party, was materially changed by this incident: and in the existing bitterness of political parties, it is not surprising that his opponents should take the opportunity for proposing, soon afterwards, a vote of ostracism,[680]—a challenge, indeed, which may, perhaps, have been accepted not unwillingly by Kimon and his party, since they might still fancy themselves the strongest, and suppose that the sentence of banishment would fall upon Ephialtês or Periklês. However, the vote ended in the expulsion of Kimon, a sure proof that his opponents were now in the ascendent. On this occasion, as on the preceding, we see the ostracism invoked to meet a period of intense political conflict, the violence of which it would at least abate, by removing for the time one of the contending leaders.
It was now that Periklês and Ephialtês carried their important scheme of judicial reform. The senate of Areopagus was deprived of its discretionary censorial power, as well as of all its judicial competence except that which related to homicide. The individual magistrates, as well as the senate of Five Hundred, were also stripped of their judicial attributes, except the power of imposing a small fine,[681] which were transferred to the newly created panels of salaried dikasts, lotted off in ten divisions from the aggregate heliæa. Ephialtês[682] first brought down the laws of Solon from the acropolis to the neighborhood of the marketplace, where the dikasteries sat,—a visible proof that the judicature was now popularized.
In the representations of many authors, the full bearing of this great constitutional change is very inadequately conceived. What we are commonly told, is, that Periklês was the first to assign a salary to these numerous dikasteries at Athens; he bribed the people with the public money, says Plutarch, in order to make head against Kimon, who bribed them out of his own private purse: as if the pay were the main feature in the case, and as if all which Periklês did, was to make himself popular by paying the dikasts for judicial service, which they had before rendered gratuitously. The truth is, that this numerous army of dikasts, distributed into ten regiments and summoned to act systematically throughout the year, was now for the first time organized: the commencement of their pay is also the commencement of their regular judicial action. What Periklês really did, was to sever for the first time from the administrative competence of the magistrates that judicial authority which had originally gone along with it. The great men who had been accustomed to hold these offices were lowered both in influence and authority:[683] while on the other hand a new life, habit, and sense of power, sprang up among the poorer citizens. A plaintiff, having cause of civil action, or an accuser, invoking punishment against citizens guilty of injury either to himself or to the state, had still to address himself to one or other of the archons, but it was only with a view of ultimately arriving before the dikastery, by whom the cause was to be tried. While the magistrates acting individually were thus restricted to simple administration and preliminary police, they experienced a still more serious loss of power in their capacity of members of the Areopagus, after the year of archonship was expired. Instead of their previous unmeasured range of supervision and interference, they were now deprived of all judicial sanction, beyond that small power of fining, which was still left both to individual magistrates, and to the senate of Five Hundred. But the cognizance of homicide was still expressly reserved to them,—for the procedure, in this latter case, religious not less than judicial, was so thoroughly consecrated by ancient feeling, that no reformer could venture to disturb or remove it.[684] It was upon this same ground probably that the stationary party defended all the prerogatives of the senate of Areopagus,—denouncing the curtailments proposed by Ephialtês as impious and guilty innovations.[685] How extreme their resentment became, when these reforms were carried, and how fierce was the collision of political parties at this moment, we may judge by the result. The enemies of Ephialtês caused him to be privately assassinated, by the hand of a Bœotian of Tanagra, named Aristodikus. Such a crime—rare in the political annals of Athens, for we come to no known instance of it afterwards, until the oligarchy of the Four Hundred, in 411 B. C.—marks at once the gravity of the change now introduced, the fierceness of the opposition offered, and the unscrupulous character of the conservative party: Kimon was in exile, and had no share in the deed. Doubtless the assassination of Ephialtês produced an effect unfavorable in every way to the party who procured it: the popular party, in their resentment, must have become still more attached to the judicial reforms just assured to them, while the hands of Periklês, the superior leader, left behind and now acting singly, must have been materially strengthened.
It is from this point that the administration of that great man may be said to date: he was now the leading adviser, we might almost say prime minister, of the Athenian people. His first years were marked by a series of brilliant successes, already mentioned, the acquisition of Megara as an ally, and the victorious war against Corinth and Ægina. But when he proposed the great and valuable improvement of the Long Walls, thus making one city of Athens and Peiræus, the same oligarchical party which had opposed his judicial changes and assassinated Ephialtês again stood forward in vehement resistance. Finding direct opposition unavailing, they did not scruple to enter into treasonable correspondence with Sparta, invoking the aid of a foreign force for the overthrow of the democracy; so odious had it become in their eyes since the recent innovations. How serious was the hazard incurred by Athens, near the time of the battle of Tanagra, has been already recounted; together with the rapid and unexpected reconciliation of parties after that battle, principally owing to the generous patriotism of Kimon and his immediate friends. He was restored from ostracism on this occasion, before his full time had expired, and the rivalry between him and Periklês henceforward becomes mitigated, or even converted into a compromise,[686] whereby the internal affairs of the city were left to the one, and the conduct of foreign expeditions to the other. The successes of Athens during the ensuing ten years were more brilliant than ever, and she attained the maximum of her power: which doubtless had a material effect in imparting stability to the democracy, as well as to the administration of Periklês, and enabled both the one and the other to stand the shock of those great public reverses, which deprived the Athenians of their dependent landed alliances, during the interval between the defeat of Korôneia and the thirty years’ truce.
Along with the important judicial revolution brought about by Periklês, were introduced other changes belonging to the same scheme and system.
Thus a general power of supervision, both over the magistrates and over the public assembly, was vested in seven magistrates, now named for the first time, called Nomophylakes, or Law-Guardians, and doubtless changed every year. These nomophylakes sat alongside of the proëdri, or presidents, both in the senate and in the public assembly, and were charged with the duty of interposing whenever any step was taken or any proposition made contrary to the existing laws: they were also empowered to constrain the magistrates to act according to law.[687] We do not know whether they possessed the presidency of a dikastery,—that is, whether they could themselves cause one of the panels of jurors to be summoned, and put an alleged delinquent on his trial before it, under their presidency, or whether they were restricted to entering a formal protest, laying the alleged illegality before the public assembly. To appoint magistrates, however, invested with this special trust of watching and informing, was not an unimportant step; for it would probably enable Ephialtês to satisfy many objectors who feared to abolish the superintending power of the Areopagus without introducing any substitute. The nomophylakes were honored with a distinguished place at the public processions and festivals, and were even allowed, like the archons, to enter the senate of Areopagus after their year of office had expired: but they never acquired any considerable power, such as that senate had itself exercised. Their interference must have been greatly superseded by the introduction and increasing application of the Graphê Paranomôn, presently to be explained; nor are they even noticed in the description of that misguided assembly which condemned the six generals after the battle of Arginusæ, by a gross violation of legal form not less than of substantial justice.[688] After the expulsion of the Thirty, the senate of Areopagus was again invested with a supervision over magistrates, though without anything like its ancient ascendency.
Another important change which we may with probability refer to Periklês, is the institution of the Nomothetæ. These men were, in point of fact, dikasts, members of the six thousand citizens annually sworn in that capacity. But they were not, like the dikasts for trying causes, distributed into panels, or regiments, known by a particular letter, and acting together throughout the entire year: they were lotted off to sit together only on special occasion and as the necessity arose. According to the reform now introduced, the ekklesia, or public assembly, even with the sanction of the senate of Five Hundred, became incompetent either to pass a new law or to repeal a law already in existence; it could only enact a psephism,—that is, properly speaking, a decree, applicable only to a particular case; though the word was used at Athens in a very large sense, sometimes comprehending decrees of general as well as permanent application. In reference to laws, a peculiar judicial procedure was established. The thesmothetæ were directed annually to examine the existing laws, noting any contradictions or double laws on the same matter; and in the first prytany (tenth part) of the Attic year, on the eleventh day, an ekklesia was held, in which the first business was to go through the laws seriatim, and submit them for approval or rejection: first beginning with the laws relating to the senate, next, those of more general import, especially such as determined the functions and competence of the magistrates. If any law was condemned by the vote of the public assembly, or if any citizen had a new law to propose, the third assembly of the prytany was employed, previous to any other business, in the appointment of nomothetæ, and in the provision of means to pay their salary. Previous notice was required to be given publicly by every citizen who had new propositions of the sort to make, in order that the time necessary for the sitting of the nomothetæ might be measured according to the number of matters to be submitted to their cognizance. Public advocates were farther named to undertake the formal defence of all the laws attacked, and the citizen who proposed to repeal them had to make out his case against this defence, to the satisfaction of the assembled nomothetæ. These latter were taken from the six thousand sworn dikasts, and were of different numbers according to circumstances: sometimes we hear of them as five hundred, sometimes as one thousand, and we may be certain that the number was always considerable.
The effect of this institution was, to place the making or repealing of laws under the same solemnities and guarantees as the trying of causes or accusations in judicature. We must recollect that the citizens who attended the ekklesia, or public assembly, were not sworn like the dikasts; nor had they the same solemnity of procedure, nor the same certainty of hearing both sides of the question set forth, nor the same full preliminary notice. How much the oath sworn was brought to act upon the minds of the dikasts, we may see by the frequent appeals to it in the orators, who contrast them with the unsworn public assembly.[689] And there can be no doubt that the nomothetæ afforded much greater security than the public assembly, for a proper decision. That security depended upon the same principle as we see to pervade all the constitutional arrangements of Athens; upon a fraction of the people casually taken, but sufficiently numerous to have the same interest with the whole,—not permanent, but delegated for the occasion,—assembled under a solemn sanction, and furnished with a full exposition of both sides of the case. The power of passing psephisms, or special decrees, still remained with the public assembly, which was doubtless much more liable to be surprised into hasty or inconsiderate decision than either the dikastery or the nomothetæ,—in spite of the necessity of previous authority from the senate of Five Hundred, before any proposition could be submitted to it.
As an additional security both to the public assembly and the nomothetæ against being entrapped into decisions contrary to existing law, another remarkable provision has yet to be mentioned,—a provision probably introduced by Periklês at the same time as the formalities of law-making by means of specially delegated nomothetæ. This was the Graphê Paranomôn,—indictment for informality or illegality,—which might be brought on certain grounds against the proposer of any law or any psephism, and rendered him liable to punishment by the dikastery. He was required, in bringing forward his new measure, to take care that it should not be in contradiction with any preëxisting law,—or if there were any such contradiction, to give formal notice of it, to propose the repeal of that which existed, and to write up publicly beforehand what his proposition was,—in order that there might never be two contradictory laws at the same time in operation, nor any illegal decree passed either by the senate or by the public assembly. If he neglected this precaution, he was liable to prosecution under the graphê paranomôn, which any Athenian citizen might bring against him before the dikastery, through the intervention and under the presidency of the thesmothetæ.