Poine: a study in ancient Greek blood-vengeance

by Hubert Joseph Treston

The Exegetae and the Number Fifty-one

We have frequently[122] referred to the Ephetae in connection with the Exegetae or Interpreters, and we have described both these groups as a sacerdotal nobility. We must now attempt to explain this connection, and, incidentally, discuss the origin of the curiously constant number ‘fifty-one,’ which is usually associated with the Ephetae. According to Suidas,[123] the Exegetae or Interpreters were appointed or controlled by the oracle at Delphi and they were three in number. Pollux[124] defines the Exegetae as ‘those who gave information regarding omens and other sacred matters.’ But the Tribe-Kings, as Pollux states,[125] were also concerned with ‘sacred matters’: and so, therefore, probably, were the Ephetae. Now Demosthenes does not mention the number three in connexion with the Exegetae. Neither does Plato. Plutarch[126] states that the Eupatridae of Athens were the Exegetae of sacred law. This statement implies that the Exegetae were a widespread caste rather than a group of three individuals. Similarly Lysias[127] refers to the Eumolpidae of Eleusis as the Exegetae of unwritten customs.

Taking it for granted that the Athenian Interpreters were three in number, Gilbert[128] and Schömann explain the number fifty-one, which is applied by Dracon to the Ephetae, as composed of forty-eight Ephetae (elected by the four Ionian tribes of Attica, twelve from each tribe) and of three Exegetae. According to this view, there was in Dracon’s time no distinction between the Exegetae as Interpreters and the Exegetae as homicide-judges. Müller,[129] however, thinks that the three Exegetae were not judges, but only purifiers; and he explains the number fifty-one as a Cleisthenic or post-Cleisthenic figure, made up of, say, five members from each of the ten Cleisthenic tribes, and one additional judge, who was presumably the King-Archon.[130] But, we may point out, the number fifty-one occurs in the actual (unrestored) Draconian inscription[131] of the year 409-8 B.C.: and it is improbable that any changes were made in the law in the time of Cleisthenes.

Plato says[132] that the Interpreters, in his ideal State, should be elected annually one from each tribe. It is therefore better, we think, to abandon the hypothesis that the Exegetae were at all times three in number. Suidas is a very late authority for this number, and he may be referring merely to the chief members of a group. But how, then, do we explain the fact that the number of the Ephetae was invariably fifty-one? It is, we think, very possible to suppose that in early times the three most important ‘archons’ were Ephetae, who acted in conjunction with the other Ephetae, who were therefore forty-eight in number, and that the number forty-eight was made up of the four Tribe-Kings and of forty-four nobles elected by the four Ionian Attic tribes, eleven from each tribe. Aristotle[133] assures us that the three ‘archons’ in the seventh century were nobles and that they were ‘final judges,’ not mere investigators. It is not necessary to assume that in later times the Ephetae always sat together as a body of fifty-one judges. Sometimes they may have adjudicated as a single group, but more frequently they were divided into sections which sat in different courts. The presence of the King Archon and the Tribe-Kings at the Prytaneum[134] suggests perhaps a previous condition of things in which these officials sat with the entire Ephetae body in the more important homicide courts.

We prefer therefore to suppose that the Ephetae and the Exegetae were for a long time[135] identical. They were both members of a sacerdotal nobility of birth which preserved the oral traditions of tribal law, and expounded these traditions. As these nobles normally supervised the ritual of public sacrifices, they naturally also, after the advent of the pollution doctrine, acquired control of the ceremonial of homicide purgation. Thus, Müller says[136]: ‘The purification of the bloodshedder came under the sacred law of Athens which remained in the hands of the old nobility even after they had lost their political authority.’ The number three applied, apparently, in Müller’s view,[137] to the three chief purifiers or supervisors of the rite of purgation, though Müller is not quite explicit on this matter. But we cannot suppose that this figure limited the number of purifiers at any time.

Solon and the Areopagus

In regard to the question of the Solonian origin of the Areopagus, Gilbert, arguing from Aristotle’s account, holds[138] that the Council of the Areopagus was in existence even before Dracon’s time. ‘The great powers,’ he says, ‘which the Council of the Areopagus possessed in the government before Dracon were considerably curtailed by him ... for whereas the Areopagus before Dracon ... exercised judicial functions ... so long as Dracon’s constitution lasted, that council was merely the guardian of the laws and superintended the magistrates. Dracon transferred the judicial powers which the Areopagus previously possessed to the Ephetae and the Prytaneis.’ This account exceeds, we think, the limits of legitimate inference from the text of Aristotle.[139] We cannot even be sure that the text of Aristotle is trustworthy. The Athenians did not possess any accurate evidence in regard to their early institutions. Müller[140] rejects the view (which is also held by Schömann)[141] that Dracon interfered with the judicial functions of the Areopagus. Pollux[142] states definitely that Solon added the Council of the Areopagus to the already existing Ephetae courts. Gilbert regards this statement as a confirmation of his theory that Dracon created the jurisdiction of the Ephetae. We think it is rather a refutation of it. Plutarch apparently did not believe that an Areopagus court, as distinct from the Ephetae, existed before Solon’s time: for he thinks[143] that a so-called law of Solon which referred to persons ‘condemned by the Areopagus, by the Ephetae, or, in the Prytaneum by the Kings,’ should have read ‘those condemned for such offences as (now) belong to the Areopagites.’

We believe that there was a Council of State which was also a State court, connected with the Hill of Ares (or Areopagus), in Dracon’s time and even before it—but that it was not then distinguished from the Ephetae who, like the Spartan Gerousia, were the supreme Council of the State. When Pollux says that Solon added the council of the Areopagus to the Ephetae, he is not quite accurate. What he should have said—perhaps what he meant to say—was that Solon established a new Areopagus as distinct from what we may call the older Ephetae-Areopagus, and that he gave to this new body judicial and administrative functions. The error of Gilbert (and of Aristotle) lies in their failure to distinguish between the personnel of the old Council and that of the new Council. The old Council was composed exclusively of the old nobility, that is to say, of the Ephetae. It was a select group, within the Ephetae caste, a group, for instance, of nobles who had held executive power. The new Council which Solon created was composed of ex-‘archons’ or ex-magistrates, but the basis on which these ‘archons’ were chosen was essentially different from that on which the Ephetae were chosen. For wealth, not birth, was the qualification which was necessary for the office.

The motive which induced Solon to establish this new Areopagus Council was probably his desire to set up a plutocratic body, surrounded by a halo of sanctity derived from the traditions of the older Ephetae-Areopagus, which would act as a check on the increasing power of a more democratic Council, which Aristotle also mentions, namely the Draconian Senate of 400 (or 401) which was appointed, by lot, from the ranks of all ‘citizens.’[144] It was, we think, this democratic council, or Senate, which threatened most seriously the power of the aristocracy. The wide powers of supervision which the Ephetae-Areopagus possessed were, of course, a valuable possession, but, with the growth of the Senate, the legislative and executive powers, and perhaps even the judicial powers, of the old Council of Noble Elders were endangered. Hence Solon, who was neither a democrat nor an aristocrat, but who was, as we conceive him, a plutocrat, instituted a new plutocratic Areopagus at the expense of the Ephetae on the one hand and of the Draconian Senate on the other. Though he allowed an appellant jurisdiction to the popular Heliastic jurors,[145] the normal homicide jurisdiction remained attached to the court of the Areopagus even though its personnel was now changed, just as in later times it continued attached to the ‘Ephetae’ courts when the Heliasts acquired the privilege of sitting there. The explanation of this strange fact is to be found in the religious doctrine of homicide as a ‘pollution.’ In these five courts alone—the fact that one of them was now a Council does not matter—were homicide trials held at night, in the open air, solemn oaths and imprecations were sworn, and the King-Archon sat without his crown. Solon, then, did not create the court of the Areopagus: he merely changed the personnel of the court. The Ephetae, that is, the nobles, were no longer the judges in that court. According to the literal interpretation of Pollux, we might conclude that there existed in Solon’s time six Athenian homicide courts. But Pollux must have been well aware that the Ephetae (including the Tribe Kings) from Solon’s time onwards functioned only at the four minor courts, which were known as the Delphinium, the Palladium, the Prytaneum, and the court at Phreatto.