Having now set forth the most important features of the homicide-judicature of Athens in the fourth century B.C., it remains to inquire what inferences may be drawn from these features as to the origin and the evolution of these courts. Our views as to the general origin of the Attic courts have already been indicated.[98] The theory of Gilbert and of Köhler that these courts originated in the right of sanctuary we have rejected as improbable.[99] The court at Phreatto had no connexion with a temple. Neither had the Prytaneum. The temple of Athene Areia on the Areopagus may not have existed when the hill first became famed for its legal judgments. The Palladium and the Delphinium were both temple courts, and during the Dark Ages (900-750 B.C.) the right of sanctuary may have given to these places their first connexion with homicide-investigation. This is, however, an accidental matter. The real cause of the birth of the Attic murder courts was the concurrence of the doctrine of homicide-pollution with the political synoekism of States in the eighth and seventh centuries B.C. Some Attic courts may have functioned in an arbitrary manner for local offences in earlier times, but their historical rôle began, and some of them, like Phreatto, were born, in the seventh century B.C.
Dracon and the Ephetae
Was it then Dracon who established the Ephetae courts as Solon established the Heliastic courts? Gilbert[100] finds it difficult to decide this question. ‘Whether Dracon himself,’ he says, ‘introduced or merely codified, in accordance with customs already existing, the system by which murder cases were tried at Athens and which, even measured by the standard of to-day, is tolerably complete, can as little be decided with certainty as can the question whether he was the founder of the five different courts at which in later times the trial was held according to the nature of the case.’ Yet, a few lines previously[101] Gilbert decides the latter question in the affirmative. ‘Dracon,’ he says, ‘transferred the judicial powers which the Areopagus had previously possessed to two new bodies which he created, the Ephetae and the Prytaneis.’
This question, for many scholars, has turned on the interpretation of a passage in Pollux,[102] who wrote eight hundred years after the event. Pollux says of the Ephetae that they were fifty-one in number and that ‘Dracon established them, chosen on grounds of birth. They were the judges of those accused of bloodshed in the five courts. It was Solon who established in addition the council of the Areopagus.’
Philippi was the first to question the value of this evidence. As the phrase ‘chosen on grounds of birth’ occurs in a law of Dracon which mentioned the Ephetae, Philippi[103] thinks that Pollux is arguing from a false interpretation of that law, suggested by a false reading τούτοις for τούτους in the law as quoted by Demosthenes.[104] As the verb αἱρείσθων may have a ‘middle’ or a ‘passive’ meaning, the sentence τούτοις δ’ οἱ πεντήκοντα καὶ εἶς ἀριστίνδην αἱρείσθων may be translated ‘for these (i.e. the phrateres) let the fifty-one be chosen according to birth’: instead of: ‘these phrateres (τούτους) let the fifty-one choose according to birth.’ But the Demosthenic citation of the law contains a reference two lines earlier to an existing body of fifty-one judges of the plea of involuntary homicide, and, therefore, the reading τούτοις is obviously false.
Gilbert says[105] that this supposition of Philippi is ‘possible but not necessary.’ But it seems obvious from the law as cited that the supposition is fanciful and impossible. Yet we hold that Pollux was in error in asserting that Dracon instituted the Ephetae. The reason for the error has been correctly indicated by Müller.[106] ‘This title (Ephetae),’ he says, ‘occurred so frequently in Dracon’s laws that it gave rise to the opinion which we find in Pollux that Dracon instituted the college of the Ephetae.’ We may add that in the laws of Dracon there is no suggestion of the creation of homicide-judges or of homicide-courts. Their existence is presumed, just as clearly as the distinction between grades of homicide-guilt and the details of the various penalties are presumed. Dracon, in our view, merely codified existing laws in relation to homicide, and allotted the trials of the different kinds of homicide to the tribe-kings, on the one hand, and to the fifty-one Ephetae, on the other. This conclusion will be confirmed by a consideration of the meaning of the word Ephetae.
Müller[107] rightly points out that the ending της normally has an active signification. The word ἐφέτης (we will assume for the moment that the plural form ἐφέται had a corresponding singular form) should not, says Müller, denote ‘a person appealed to,’ but rather a person who permits an avenger to punish. Müller thus connects the word with the verb ἐφίημι, ‘I permit,’ rather than with the term ἔφεσις, meaning ‘appeal.’ Schömann[108] and Gilbert[109] also connect the word with ἐφίημι, but interpret the verb as an archaic form, which means ‘I direct’ persons as to the manner in which the accused should be punished or proceeded against. The Ephetae, according to this view, are ‘the directors’ or the determining arbiters of prosecution or vengeance. Philippi[110] points out that this opinion gives to the term too wide and general a meaning. We agree with this criticism. Any judge or group of judges could have been called ‘Ephetae,’ according to this view. Why, then, we may ask, did not Dracon call these judges by the ordinary title of homicide judges, namely, dicasts (δικασταί)? Such was the usual title of the democratic Heliastic judges.
Lange, who at a later period came to favour the Schömann-Gilbert view, originally proposed[111] that the term Ephetae was an abbreviated clause, that the words οἱ ἐφέται are derived from the phrase οἱ ἐπὶ τοῖς ἔταις ὄντες, i.e. ‘those who presided over the citizens of full right’—the foremen or heads of the old aristocracy of tribal Attica. Philippi[112] favours the original theory of Lange, which is, he says, ‘so excellent from a linguistic point of view that I am entirely satisfied.’ Philippi points out that, according to this view, the Ephetae are the Athenian counterpart of the Spartan Gerousia and that therefore we can understand their selection on grounds of birth. Glotz[113] also adopts this interpretation. He speaks of ‘les éphètes ou chefs d’ἔται.’ Now, the Homeric word ἔται may mean either cousins or comrades. It was a word which could denote, in Pelasgian life, members of the same clan or of the same phratry. The chiefs of the phratries were therefore nobles, closely connected with the kings of the tribes. It is therefore significant that the only homicide judges who are mentioned in the Draconian inscription of 409-8 are the kings and the Ephetae.
Pollux[114] assures us that, in the time of Dracon, the Ephetae sat in all the five great homicide courts. They therefore sat on the Areopagus at that time, and also in the Prytaneum. In the time of Aristotle[115] the judges at the Prytaneum court were the Tribe-Kings and the King-Archon. The Ephetae continued to sit at the Delphinium, the Palladium, and the Phreatto courts.[116] These facts suggest, prima facie, a survival in the democratic era of the judicial power of the old nobility of birth. Pollux[117] states that the Tribe-Kings were Eupatridae, which implies that they were members of the old Attic nobility. The Ephetae, he says,[118] were chosen on grounds of birth: a fact which proves, as Gilbert points out,[119] that they also were Eupatridae. Aristotle[120] says that, before Dracon, the highest magistrates were elected from the ranks of the aristocrats and the oligarchs; and that these magistrates were the final judges of the suits that came before them, not, as in his own time, the preliminary investigators.
Is it not obvious therefore that we must interpret the evolution of Attic homicide courts as a gradual encroachment on the part of the new plutocracy and the new democracy upon the domain which at one time was administered exclusively by the sacerdotal aristocracy of birth? According to this view, the Ephetae and the Tribe-Kings, who once sat in all the great Attic courts and who were never suppressed, though they certainly were submerged, in the classical period of Greek history, were the lineal descendants of the tribal Elders of Pelasgian days whom Homer describes[121] as ‘sitting on smooth stones in a sacred circle, with sceptres in their hands.’ According to this hypothesis Dracon did not create the Athenian Ephetae. He did not even establish them in the rôle of homicide judges, for such they had been from time immemorial, in the local judicature of tribal society; and such they must also have been, in the centralised civic judicature, which before Dracon, though perhaps not long before him, had evolved under the twofold influence of political synoekism and the religious doctrine of homicide as a ‘pollution.’