As to the second point, the signification of νομοθέτας, I stand upon the general use of that word in Athenian political language: see the explanation earlier in this History, vol. v, ch. xlvi, p. 373. It is for the commentators to produce some justification of the unusual meaning which they assign to it: “persons to model the constitution; commissioners who drew up the new constitution,” as Dr. Arnold, in concurrence with the rest, translates it. Until some justification is produced, I venture to believe that νομοθέται, is a word which would not be used in that sense with reference to nominees chosen by the democracy, and intended to act with the democracy; for it implies a final, decisive, authoritative determination; whereas the ξυγγραφεῖς, or “commissioners to draw up a constitution,” were only invested with the function of submitting something for approbation to the public assembly or competent authority; that is, assuming that the public assembly remained an efficient reality.
Moreover, the words καὶ τἄλλα would hardly be used in immediate sequence to νομοθέτας, if the latter word meant that which the commentators suppose: “Commissioners for framing a constitution, and the other things towards the constitution.” Such commissioners are surely far too prominent and initiative in their function to be named in this way. Let us add, that the most material items in the new constitution, if we are so to call it, have already been distinctly specified as settled by public vote, before these νομοθέται are even named.
It is important to notice, that even the Thirty, who were named six years afterwards to draw up a constitution, at the moment when Sparta was mistress of Athens, and when the people were thoroughly put down, are not called Νομοθέται, but are named by a circumlocution equivalent to Ἔδοξε τῷ δήμῳ, τριάκοντα ἄνδρας ἑλέσθαι, οἳ τοὺς πατρίους νόμους συγγράψουσι, καθ᾽ οὓς πολιτεύσουσι.—Αἱρεθέντες δὲ, ἐφ᾽ ᾧ τε συγγράψαι νόμους καθ᾽ οὕστινας πολιτεύσοιντο, τούτους μὲν ἀεὶ ἔμελλον ξυγγράφειν τε καὶ ἀποδεικνύναι, etc. (Xenophon, Hellen. ii, 3, 2-11.) Xenophon calls Kritias and Chariklês the nomothetæ of the Thirty (Memor. i, 2, 30), but this is not democracy.
For the signification of Νομοθέτης (applied most generally to Solon, sometimes to others, either by rhetorical looseness or by ironical taunt), or Νομοθέται, a numerous body of persons chosen and sworn, see Lysias cont. Nikomach. sects. 3, 33, 37; Andokidês de Mysteriis, sects. 81-85, c. 14, p. 38, where the nomothetæ are a sworn body of Five Hundred, exercising, conjointly with the senate, the function of accepting or rejecting laws proposed to them.
[103] Plutarch, Alkibiadês, c. 33. Cornelius Nepos (Alkibiad. c. 5, and Diodorus, xiii, 38-42) mentions Theramenês as the principal author of the decree for restoring Alkibiadês from exile. But the precise words of the elegy composed by Kritias, wherein the latter vindicates this proceeding to himself, are cited by Plutarch, and are very good evidence. Doubtless many of the leading men supported, and none opposed, the proposition.
[104] Thucyd. viii, 97. Καὶ οὐχ ἥκιστα δὴ τὸν πρῶτον χρόνον ἐπί γε ἐμοῦ Ἀθηναῖοι φαίνονται εὖ πολιτεύσαντες· μετρία γὰρ ἥ τε ἐς τοὺς ὀλίγους καὶ τοὺς πολλοὺς ξύγκρασις ἐγένετο, καὶ ἐκ πονηρῶν τῶν πραγμάτων γενομένων τοῦτο πρῶτον ἀνήνεγκε τὴν πόλιν.
I refer the reader to a note on this passage in one of my former volumes, and on the explanation given of it by Dr. Arnold (see vol. v, ch. xlv, p. 330.)
[105] The words of Thucydidês (viii, 97), εἶναι δὲ αὐτῶν, ὁπόσοι καὶ ὅπλα παρέχονται, show that this body was not composed exclusively of those who furnished panoplies. It could never have been intended, for example, to exclude the hippeis, or knights.
[106] Lysias, Orat. xx, pro Polystrato, c. 4, p. 675, Reisk.
[107] Thucyd. viii, 86.