Whether the Heliastic jurors in the fourth century were compelled to occupy separate places of jurisdiction from the Ephetae or whether they also sat in the actual Ephetae courts is a difficult question to decide. One thing at least is certain, as Lipsius points out.[39] The mode of procedure in the old courts remained peculiar and distinct. When therefore Antiphon[40] makes a pleader, in a homicide charge, object that ‘here there is no open-air trial, no customary giving and taking of oaths,’ we know that the trial is by Heliastic jurors in a Heliastic court. No mere change of personnel from that of the Ephetae or nobles to that of democratic jurors was so drastic as the legal sanction of an alternative procedure which entirely lacked the religious traditional prestige of the older Ephetae courts.
Aristotle’s account[41] of the five great homicide courts is very similar to that of Pollux:
(1) The Areopagus: Homicide with malice aforethought (i.e. wilful murder) is tried in the Areopagus, wounding with intent to kill,[42] poisoning with intent to kill, and arson: these are the only indictments tried by the Areopagus.
(2) The Palladium: Involuntary homicide, attempts to commit homicide (βούλευσις), and the homicide of a slave, or a foreigner domiciled or undomiciled, are tried in the Palladium.
(3) The Delphinium: Homicide avowed and alleged to be lawful, as of a surprised adulterer, or in war of a friend mistaken for an enemy, or of an antagonist in an athletic contest, is tried in the Delphinium.
(4) The Prytaneum: the King-Archon and the Tribe-Kings judge indictments of inanimate objects and of animals.
(5) Phreatto: If an exile for involuntary homicide has not yet obtained permission from the relatives of the deceased to return, and is charged with another homicide or with wounding, he is tried at Phreatto. He pleads from the deck of a vessel brought to land.
Aristotle adds that ‘the jurors are appointed by lot, except in the case of the Areopagus. The “King” (i.e. the King-Archon) introduces indictments: the courts sit by night and in the open air, and when the “King” takes his place in any court, he lays aside his crown.[43] If the name of the homicide is unknown, the indictment is prosecuted in general terms against the unknown author.’
In these extracts we must indicate some points of interest. (1) The jurisdiction of the Areopagus, according to Poste’s interpretation, extended only to cases in which human life was actually taken, and deliberately taken: obviously therefore it did not include all cases of arson. But according to the usual interpretation, which we accept, arson of any kind was included in its jurisdiction, and so was malicious wounding which did not end in death. (2) In Aristotle’s account of the Palladium, the word βούλευσις must mean ‘attempted murder’ which did not succeed in inflicting any physical injury.[44] It cannot, as Lipsius[45] thinks, include ‘contriving death,’ which, according to Demosthenes,[46] was tried by the Areopagus. (3) The Palladium adjudicated in cases of wilful homicide between foreigners. Pausanias also attributes this function to this court, as we have shown.[47]
The Athenian Areopagus had a very chequered career. Solon is generally regarded as its creator, and in his time it functioned as a Council of State with very wide supervisory powers. But about the year 460 B.C. Ephialtes and Pericles[48] restricted the function of the Areopagus to the trial of wilful murder, and of cases of arson and poisoning which included actual intentional slaying. About the same time the archonship was thrown open to the poorer citizens, so that the personnel of the court became more democratic.[49] Pollux and Aristotle agree in assigning to the Areopagus functions which it continued to discharge, despite the vicissitudes of fortune, from the sixth century onwards. When Aristotle says that the Athenian jurors were appointed by lot,[50] he refers, clearly, to the Heliastic courts and not to the Areopagus. The Areopagus court, which was composed for the most part of Archons and ex-Archons, was on quite a different plane. Similarly the Ephetae judges were probably not chosen by lot, since they were members of the old aristocracy of birth. Aristotle does not expressly mention the Ephetae. Yet we cannot suppose that they were ever completely deprived of jurisdiction in homicide cases. Harpocration[51] says that the jurors in all the great homicide courts except the Areopagus were Ephetae; that they were fifty-one in number, and were chosen according to the qualification of birth. The statement of Pollux[52] that ‘the Ephetae judged in the five courts’ applies only, we shall see, to Dracon’s time. When he adds: ‘gradually the jurisdiction of the Ephetae was regarded as a joke’ (κατεγελάσθη), we can hardly suppose that he is comparing them with the Areopagus, but rather with the Heliastic jurors. But he implies at least that the Ephetae continued to function as judges and that they were never confused with the Heliastic jurors. If then in Aristotle’s time the judges at the Palladium, Delphinium and Phreatto are Heliasts, we must conclude not that the Ephetae had ceased to exist, but that democracy had invaded their jurisdiction to the extent of permitting an option in the personnel of the court, though the traditional procedure of the court was maintained. We shall see that the Areopagus and the four Ephetae courts were regarded with reverential awe in the time of Demosthenes. We do not know to what period Pollux refers when he says that ‘the court of the Ephetae was regarded as a joke.’ It is probable that the Heliasts had the option of sitting in such courts, and this fact may have preserved for them at least a remnant of their old prestige. But the main cause of the reverence which these courts inspired was their traditional procedure. The King-Archon when he presided at the Areopagus laid aside his crown.[53] According to our interpretation of Aristotle, he also laid aside his crown when he sat amongst the Heliastic jurors in the Ephetae courts. This act was not a tribute paid by obsolete monarchy or aristocracy to victorious democracy. It was an act which the religious atmosphere of the Areopagus and of the Ephetae courts had enshrined in traditional custom. It was an act which fully harmonised with the solemn procedure of these courts, with their traditional nocturnal sessions, in the open air, beneath the dark sky and the cold stars.