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The original date of the δῆμος πληθύων provisions of IG I3 105*

Published online by Cambridge University Press:  11 October 2013

F. X. Ryan
F. X. Ryan
Affiliation:
University of the Witwatersand
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Extract

Though published about 409 BC, IG i3 105 has long been thought to contain regulations originally enacted at an earlier date. In 1873 Kirchhoff suggested a date of 411/10 or 410/9 for the inscription itself, but noted that there were priscae dictionis vestigia. Hiller von Gaertringen went further in 1924 when he concluded that priscus dictionis color saeculi initium decet. Although modern scholars disagree about the exact date of the original provisions, some of which include the archaic expression ἄνευ τοῦ δήμου τοῦ Άθηναίων πληθύοντος there is general agreement that these older laws were passed between 501/0 and 462/1 BC. In this paper I shall argue that a Solonian date for the original enactment of the δῆμος πληθύων provisions makes the most historical sense.

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Articles
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The Journal of Hellenic Studies , Volume 114 , November 1994 , pp. 120 - 134
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Copyright © The Society for the Promotion of Hellenic Studies 1994

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References

1 IG i 57.

2 IG i2 114.

3 ‘Über den Process des Perikies’, Hermes xxviii (1893) 597 n. 3.

4 ‘Le Conseil athénien des Cinq Cents et la peine de mort’, REG xxxiii (1920) 32–34. It is usually assumed that Hermocreon was archon in 501/0 (Cadoux, T.J., ‘The Athenian archons from Kreon to Hypsichides’, JHS lxviii [1948] 115–16).Google Scholar In a recent contribution to the chronological discussion it is suggested that Hermocreon's year was 506/5 (Fomara, C.W. and Samons II, L.J., Athens from Cleisthenes to Pericles [Berkeley and Los Angeles 1991] 168–70).Google Scholar

5 The administration of justice from Homer to Aristotle (Chicago 1930–38) i 340–44.

6 The Athenian boule (Oxford 1972) 113, 198.

7 ‘La jurisdiction pénale de la Boulè à Athènes au début du Ve siècle avant J.-C, ’, LEC x (1941) 333–36.Google Scholar

8 Diodorus (xi 39.5, 42.5) relates two secret meetings of the boule after the Persian wars, but Rhodes (n. 6) doubts the historicity of these passages (40–41, 201 n. 3).

9 Hdt. ix 5.1: έδόκεε ἄμεινον εἶναι δεξαμένους τὸν λόγον τόν σφι Μουρυχίδης προσφέρει ἐξενεῖκαι ἐς τὸν δῆμον. We do not know whether the motion was put to a vote; if it was, it did not pass.

10 Cloché (n. 4) 32–33. Lycides was lynched by the boule and by the rest of the people.

11 Bonner-Smith (n. 5) i.342; Rhodes (n. 6) 191; Ostwald, M., From popular sovereignty to the sovereignty of law: law, society, and politics in fifth-century Athens (Berkeley and Los Angeles 1986) 26.Google Scholar

12 ‘Studies in Attic inscriptions of the fifth century BC, B. the charter of the democracy, 410 BC = IG I2 114’, BSA xxxiii (1932–33) 120.

13 Rhodes (n. 6) 198.

14 IG i3 105.25, 35, 36, 37, 40–41, 42, 43, 45–46.

15 Ibid. 22, 39, 51.

16 Ibid. 53, 54, and probably in line 27.

17 Rhodes (n. 6) 191.

18 Ostwald (n. 11) 34–35, rejecting Ath. Pol. 45.1, which allows the boule to inflict capital punishment until the case of a certain Lysimachus.

19 Rhodes (n. 6) 191.

20 Ostwald (n. 11) 35.

21 Lewis, D.M., ‘A Note on IG I2 114’, JHS lxxxvii (1967) 132.CrossRefGoogle Scholar

22 Sencie and Peremans (n. 7) 334.

23 Cloché (n. 4) 33–34 with A.P. 22.2. Aristotle's claim that the oath sworn by the bouleutai in the archonship of Hermocreon was the one in ὅν ἕτι καὶ νῦν όμνύουσιν is not to be taken literally, as we know that clauses were added to the oath in the fifth century (Rhodes [n. 6] 193–94). The notion that the bouleutic oath limited the powers of the boule is itself probably wrong: Peremans, W. (‘La jurisdiction pénale de la boulè à Athènes au début du Vě siècle avant J.-C’, LEC x [1941] 193–201Google Scholar) maintained that the reorganization of the boule took several years and that the oath was the final act of the Cleisthenic reforms (cf. Rhodes [n. 6] 192–93).

24 Bonner-Smith (n. 5) i.204.

25 Rhodes (n. 6) 196.

26 Cf. Rhodes, ibid. 194 n. 13. The bouleutai (and dikastai) were able to use the verb ἐπιψηφίζω in the oath which they swore in the settlement with Chalkis (ML 52.10). But this decree dates from 446/5, when bouleutai clearly presided over the boule as prytaneis; Rhodes believes that prytanies were introduced only after 462 (op. cit. 17–18).

27 Dem. xxiv 148, one of many passages in which a fourth-century orator makes Solon responsible for institutions current in his own day.

28 We hear of a γραφὴ προεδρική and ἐπιστατική (A.P. 59.2) and of a γραφὴ πρυτανική (Harp. s.v. ‘ῥητορικὴ γραφή’).

29 Schwyzer, E., ed., Dialectorum graecarum exempta epigraphica potiora (Leipzig 1923) nos. 410, 412.Google Scholar

30 The local scripts of archaic Greece (Oxford 1961) 220 nos. 5, 9.

31 Ibid., 218.

32 IC iv 13, ML 8C.5–7.

33 To the modern discussions of these cases cited in Ostwald (n. 11) 28 n. 105, the following may be added: Carawan, E.M., ‘Eisangelia and euthyna: the trials of Miltiades, Themistocles, and Cimon’, GRBS xxviii (1987) 167–208Google Scholar; Wallace, R.W., The Areopagus council to 307 BC (Baltimore 1989) 74–76.Google Scholar

34 Hdt. vi 21.2. For the date see Ostwald (n. 11) 28 n. 106.

35 Hdt. vi 104.2, Marcellin. Vit. Thuc. 13.

36 Hdt. vi 136.

37 The only source is of questionable accuracy: Lye. Leoc. 117.

38 Plut. Them. 23; Thuc. i 135.2–3, 138.6. For the date see Lenardon, R.J., ‘The chronology of Themistokles’ ostracism and exile’, Hist. viii (1959) 23–48Google Scholar; P.J. Rhodes, ‘Thucydides on Pausanias and Themistocles’, ibid. xix (1970) 387–400.

39 A.P. 27.1; Plut. Cim. 14.3–4, 15.1.

40 Ostwald (n. 11) 30.

41 Much ink has been spilled in an attempt to determine whether eisangelia was used in any of these cases. Aristotle tells us that the Areopagus τοὺς ἐπὶ καταλύσει τοῦ δήμου συνισταμένους ἕκρινεν, Σόλωνος θέντος νόμον εἰσαγγελίας περὶ αύτῶν (A.P. 8.4). The term ‘eisangelia’ is used only in the case of Themistocles (Craterus FGrH 342 F 11a). Plutarch uses the expression γραψάμενος αύτοῦ προδοσίας (Plut. Them. 23.1=F 11b). If it was an eisangelia, A.P. 8.4 forces us to conclude that the case was heard by the Areopagus (so Rhodes [n. 6] 201). That the ekklesia was involved in the trial follows from the fact that the source of our information is the collection of popular decrees by Craterus. Ostwald (n.11) 36–37 has argued that this need only indicate that the chief prosecutor of Themistocles, Leobotes the son of Alcmaeon, made a motion in the ekklesia that an eisangelia be laid before the Areopagus; still more likely is the possibility that Craterus included Leobotes’ eisangelia because the final verdict was passed by a popular court in accordance with the δῆμος πληθύων clauses of IG i3 105.

42 Xanthippus demanded the death penalty at the second trial of Miltiades and Pericles demanded the death penalty at the trial of Cimon. In the case of Hipparchus the death sentence was actually pronounced. Although we are explicitly told only that Themistocles was punished with exile, the loss of the right to burial in Attica and the attempts to arrest him abroad indicate that a capital sentence had been passed (Hansen, M.H., Eisangelia: the sovereignty of the people's court in Athens in the fourth century BC and the impeachment of generals and politicians [Odense 1975] 70).Google Scholar

43 Ostwald (n. 11) 35–36.

44 Ibid. 36.

45 Ibid. 12.

46 Rhodes (n. 6) 197–98.

47 ML 52.9–10.

48 Rhodes (n. 6) 198.

49 ‘I shall not take the property of anyone without due process of law, without the demos of the Athenians’.

50 Bonner-Smith (n. 5) i 344 n. 1.

51 Ibid, i 366–67.

52 A.P. 40.2; cf. Lys. xxii 2 for a clearer instance of the application of άκριτοζ to a trial by the boule. Isoc. xii Panath. 66 provides another use of the term in an imperial context.

53 This interpretation is followed by Balcer, J.M., The Athenian regulations for Chalkis: studies in Athenian imperial law, Historia Einzelsch. xxxiii (Wiesbaden 1978) 37Google Scholar; cf. Carawan, E.M., ‘Akriton apokteinai: execution without trial in fourth-century Athens’, GRBS xxv (1984) 117 n. 18.Google Scholar Hansen's disjunction of δῆμος and δικαστήριον has been answered by Ostwald (n. 11) 34 n. 131.

54 IG i3 4B.12–13; cf. 7–8.

55 Bonner-Smith (n. 5) 203 n. 3.

56 The relevant inscriptions are listed by Rhodes (n. 6) 198 n. 3.

57 Ostwald (n. 11) 33.

58 Cloché (n. 4) 29; Bonner-Smith (n. 5) i.202; Ostwald (n. 11) 33. The occurrence of the figure 500 drachmae in lines 31–32 cannot be decisive in this matter, if we follow Rhodes' general principle that one part of the document does not necessarily bear the same date as another. But we know that the boule was limited to fines of this amount in the fourth century ([Dem.] xlvii 43), and it is very likely that this restriction existed already in the fifth century (ML 73.57–59).

59 In the later fifth and fourth centuries the permission of the people was not needed for the imposition of fines up to 50 drachmae by the ἰεροποιοὶ κατ᾿ ἐνιαυτόν (IG i3 82.24–28, of 421/0), the proedroi (Aeschin. i 35), and the archon ([Dem.] xliii 75). Since the power of the magistrates to make decisions on their own responsibility decreased over time, it is unlikely that Solon made all judgments by magistrates subject to appeal (MacDowell, D.M., The law in classical Athens [Ithaca 1978] 30).Google Scholar It should therefore be accepted that it was always within the competence of a magistrate to impose on his own authority a fine of a mere three obols; at no time in Athenian history would the right to impose so small a fine have been reserved to the demos.

60 He is mentioned just twice, IG i3 4B.23, 24.

61 See n. 58.

62 IG i3 4B.26 (cf. 4A.14), Rhodes (n. 6) 197.

63 It is doubtful that the gymnasium of the same name existed at the time when the original version of IG i3 105 was passed. According to Theopompus, it was built by Peisistratus (FGrH 115 F 136), but Philochorus attributes the erection of it to Pericles (FGrH 328 F 37). The gymnasium is first attested by Xenophon (Hell, i 1.33). We never hear of an assembly being held in a gymnasium, although in the fourth century it did sit in theaters: in Boedromion a session of the assembly met in the theater of Dionysus to hold a review of the ephebes who had completed their first year of military training (A.P. 42.4), and the assembly occasionally met in the theater in the Peiraeus to discuss naval affairs (Dem. xix 60, 125, 209; cf. Lys. xiii 32–33, 55–56).

64 We do know that in the fourth century a session of the assembly was held in the precinct of Dionysus following the Greater Dionysia (Dem. xxi 8–9).

We cannot pinpoint the precise meeting place of the assembly mentioned in our inscription. Αύκειον was a toponym as well as an epithet of Apollo, so the assembly could have been held in another precinct of Apollo in the district called Lykeion: both the Pythion (Thuc. ii 15.4, Paus. i 19.1) and the Delphinion (Paus, i 19.1) lay on the right bank of the Ilissus.

65 H.A. Thompson lowered the date for Pnyx I to c. 460 (‘The Pnyx in models’, in Studies in Attic epigraphy, history, and topography presented to Eugene Vanderpool, Hesperia suppl. xix [1982] 136–37. Thompson's new date has not been widely accepted (see J.McK, . Camp, review of Studies presented to Eugene Vanderpool, AJA lxxxvii [1983] 113–15).Google Scholar

66 Plut. Sol. 8.2, 30.1. Solon recited a poem on Salamis for his fellow citizens in the agora (8.2), and Peisistratus went there to show off his self-inflicted wounds and ask for a bodyguard (30.1). The Athenians assembled in the agora to depose the Thirty (A.P. 38.1), and use of the agora for assemblies is attested by Harpocration (s.v. ‘πάνδημος Ἀφροδίτη’). M.H. Hansen concluded on the basis of Plutarch's information that the agora was the assembly place in the archaic period (‘How many Athenians attended the ecclesia?’ GRBS xvii [1976] 117–19; The Athenian assembly in the age of Demosthenes [Oxford 1987] 12).

67 He is said to have bribed the priestess at Delphi (Hdt. v 66.1 ), and to have let her choose ten eponymous heroes for the tribes (A.P. 21.6).

68 Solon, fr. 13.53 West.

69 We are told that Solon defended Delphi against the Kirrhaeans in the Sacred War (Aeschin. iii 108, Plut. Sol. 11.1–2, Paus, x 37.6–7, Polyaen. iii 5), that the oracle at Delphi told him the correct procedure for the capture of Salamis (Plut. Sol. 9.1), that the oracle assisted him when he argued before Spartan arbitrators against Megarian claims to Salamis (Plut. Sol. 10.4), that the oracle urged him to accept sole rule (Plut. Mor. 152c), that Solon sent the golden tripod to Delphi (D.L. i 28, Diod. ix 3), and that he gave Apollo at Delphi the maxim μηδὲν ἄγαν (D.L. i 63). Many of these stories are hard to credit, but the most fantastic stories about Solon's connections with Apollo must get their start somewhere—perhaps in his choice of Lykeion as an asssembly place.

70 Athen, vi 234. The historicity of the law is accepted by Freeman, K., The work and life of Solon (Cardiff 1926) 114.Google Scholar

71 Lys. x 17. Harrison, A.R.W. (The law of Athens [Oxford 1968–71] i. 207 n. 2, ii.177 n. 4Google Scholar) accepts Lysias' statement that the laws quoted in x 16–17 are Solonian.

72 Bonner-Smith (n. 5) ii 152 n.5; Ostwald (n. 11) 12 n.30.

73 It has long been recognized that much of the oath preserved in Dem. xxiv 149–51 is the work of later writers (Lipsius, J. H., Das attische Recht und Rechtsverfahren [Leipzig 1905–15] 151).Google Scholar The oath inserted in the text of Demosthenes has the juror swear by Zeus, Poseidon, and Demeter (xxiv 151). Fränkel, M. substituted Apollo for Poseidon on the basis of Poll, viii 122 (‘Der attische Heliasteneid’, Hermes xiii [1878] 460).Google Scholar The emendation of Fränkel is accepted by Lipsius (op. cit. 153 n. 56) and by Bonner-Smith ([n. 5] ii. 153 n. 2).

74 Harp. s.v. ‘Ἀρδηττός’. Harpocration's site is accepted by Lipsius (n. 72) 151 and by Kahrstedt, U. (Untersuchungen zur Magistratur in Athen [Stuttgart-Berlin 1936] 67)Google Scholar, but doubted by Ostwald (n. 11) 160.

75 Hesych. s.v. ‘Ἀρδήττους’.

76 Strab. ix 1.24. This passage of Strabo is considered to refer to ‘der Bezirk’ called ‘Lykeion’ (rather than the gymnasium) by Kroll, W., RE xiii (1927) 2267.Google Scholar

77 The curse pronounced by the herald at the opening of the ekklesia contained a reference to the eliaia: εἴ τις ἐξαπατᾷ λέγων ἢ βουλὴν ἢ δῆμον ἤ τὴν ἠλιαίαν (Dem. xxiii 97). This passage is decisive proof that at one time the eliaia was simply the ekklesia meeting in a judicial capacity; it was necessary to mention both institutions in the curse since the eliastic oath would not yet have been taken at those meetings of the demos convened for judicial purposes.

78 If Solon used Lykeion as the regular meeting place of the demos, the ίσονομία of Cleisthenes may have been symbolized by a transfer of the meeting place to a site more integral to the city itself, whether agora or Pnyx.

79 See Miller, J., RE v (1905) 1656 for references.Google Scholar

80 Cf. Stroud, R.S., Drakon's law on homicide (Berkeley and Los Angeles 1968) 77.Google Scholar This is true whether we accept the MSS. readings Herodicus or Herodotus or the emendation of Spengel, L. (Artium scriptores [Stuttgart 1828] 94)Google Scholar, Prodicus, as the author of the pun at Arist. Rh. 1400b20: ούκ ἀνθρώπου οἱ νόμοι άλλὰ δράκοντος. Gagarin, M., Drakon and early Athenian homicide law (New Haven 1981) 116Google Scholar stresses that the tradition of the severity of Draco's laws is first attested in the fourth century.

81 Plut. Sol. 17.2. Draco's surviving law on homicide sets exile as the penalty for unintentional homicide (ML 86.11; Gagarin [n. 80] 30). This seems to contradict Plutarch's statement, but the preserved law may apply only to unintentional homicide, and Plutarch's word άνδροφόνοι signify only intentional killers (Gagarin, Ibid. 116 and n. 17).

82 Lys., fr. 10 Thalheim=35 Baiter & Sauppe, fr. 194 B.&S.

83 Poll, viii 42.

84 Ostwald, M., ‘The Athenian legislation against tyranny and subversion’, TAPA lxxxvi (1955) 106–109Google Scholar; a different view is offered by Gagarin, M., ‘The thesmothetai and the earliest Athenian tyranny law’, TAPA cxi (1981) 71–77.Google Scholar

85 Plut. Sol. 19.4; cf. M. Gagarin (n. 80) 120 n. 26.

86 Gagarin (n. 80) 116–21.

87 ML 86.36–38.

88 Gagarin (n. 80) 62–64, 118.

89 Cf. Dem. ix 44.

90 A killer who goes into exile is protected in Draco's homicide law, ML 86.26–29.

91 Trials were not always a necessary prelude to capital punishment: Aeschin. i 91 suggests that a killer caught in the act could be executed on the spot by anyone.

92 Plut. Sol. 19.4.

93 Δήμιος was the Athenian euphemism for ‘executioner’ (MacDowell [n. 59] 254).

94 A.P. 7.1.

95 Stroud (n. 80) 82.

96 A.P. 9.1. The passages in the Aristotelian corpus which demonstrate his belief that judicial power made the people κύριος τῆς πολιτείας (A.P. 9.1) are collected by Ruschenbusch, E., ‘Δικαστήριον πάντων κύριον’, Hist. vi (1957) 257–58.Google Scholar

97 It is a priori likely that the people would demand and gain ephesis in capital cases before demanding ephesis in cases punishable by fines. If ephesis was allowed in 594 for cases judged by magistrates, which were not capital cases, then, a fortiori, ephesis should have been possible in capital cases as well.

98 Gr. Staatskunde (Munich 1920–26) 847.

99 Hignett, C., A history of the Athenian constitution to the end of the fifth century BC (Oxford 1952) 97.Google Scholar

100 Arist. A P. 14.1, Hdt. i 59.4–5.

101 Plut. Sol. 31.3–4.

102 D.L. i 55.

103 Freeman (n. 70) 129. After 411 Solon was seen as a founding father of democracy, but it seems unlikely that a grant to one named individual was invented; one might expect democratic propagandists to attribute to Solon a more thoroughgoing scheme.

104 A.P. 49.4.

105 Wallace (n. 33) 32–45.

106 J.H. Oliver's belief in a Draconian boule, and his emendations of A.P. 4.3 on the basis of the number three (The Athenian expounders of the sacred and ancestral law [Baltimore 1950] 68–69), have been answered adequately by Tod, M.N. (review of Oliver, JHS lxxi [1951] 270–71).CrossRefGoogle Scholar The classic statement of the case for the Solonian boule is P. Cloché, ‘La boulè d'Athènes en 508/7 avant J.-C’, REG xxxvii (1924) 1–26.

107 The right historical circumstances for the enactment of legislation in favor of the ekklesia and eliaia obtained at one other known date: 462/1. We know that the powers of the demos were increased in that year, but it is clear that the powers the demos received in 462/1 cannot be those mentioned in our document.

108 Cloché (n. 4) 29 with n. 1.

109 Sencie and Peremans (n. 7) 335–37.

110 Rhodes (n. 6) 197–98.

111 Ostwald (n. 11) 33, 35.

112 For the case that Cleisthenes used isonomia as a political slogan, see Ostwald, M., Nomos and the beginnings of the Athenian democracy (Oxford 1969) 149–58.Google Scholar Ostwald (n. 11) 27 defines isonomia as ‘political equality between the ruling magistrates, who formulate political decisions, and the Council and Assembly, which approve or disapprove them’.

113 Ostwald (n. 11) 39. Ostwald himself accepts an early fifth-century date for the original.

114 Indeed, if the powers bestowed on the demos were much less, Aristotle's (A.P. 9.1) statement that ephesis was one of the three most democratic features of Solon's constitution would seem an exaggeration.

115 Hignett(n. 99) 97 n. 6.

116 Rhodes (n. 6) 203 n. 3.

117 Bonner-Smith (n. 5) i.151–52.

118 Plut. Sol. 18.3.

119 MacDowell(n. 59) 30.

120 Ostwald (n. 11) 12.

121 synk. 2.1. Rhodes (n. 6) adduces the early appearance of the Roman provocatio against a magistrate's verdict in support of his view that Solon gave the right of appeal only against the decision of a magistrate.

122 The historicity of the law on sedition is rejected by E. David, ‘Solon, neutrality and partisan literature of late 5th-century Athens’, MH xli (1984) 129–38; and by French, A., ‘Solon's act of mediation’, Antichthon xviii (1984) 1–12.CrossRefGoogle Scholar The legislation is accepted by Bers, V., ‘Solon's law forbidding neutrality and Lysias 31’, Hist, xxiv (1975) 507–508Google Scholar; Rhodes, P.J., A commentary on the Aristotelian Athenaion Politela (Oxford 1981) 158Google Scholar; and by Manville, P.B., The origins of citizenship in ancient Athens (Princeton 1990) 148.Google Scholar An aureum dictum in the spirit of this law is quoted at Plut. Sol. 18.7.

123 A.P. 8.4.

124 Arist. Pol. 1274a15–17, 1281b32–34.

125 Ostwald (n. 11)40.

126 ML 52.4-9.

127 ‘Notes on jurisdiction in the Athenian empire’, CQ xi (1961) 270.

128 A.P. 45.1; Rhodes (n. 122) 537-40; Ostwald (n. 11) 38-39.

129 E. Ruschenbusch (n. 96) 263-74.