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ΝΟΜΟΦΥΛΑΚΙΑ and the Areopagus

  • G. L. Cawkwell (a1)


The account of the reforms of Ephialtes given in the Aristotelian Ath. Pol. (25) is as follows:

For about seventeen years after the Persian Wars the constitution lasted unchanged with the members of the Areopagus pre-eminent, despite a gradual decline (καίπερ ύποφερομένη κατά μικρόν). With the increase of the mass of citizens [if that is the right way to understand the phrase αύξανομένου τοῦ πλήθους] on becoming leader of the People Ephialtes, the son of Sophonides, who was thought to be both uncorrupt and just in his attitude to the constitution, attacked the Council [sc. of the Areopagus]. First, he brought down many individual Areopagites, by bringing lawsuits against them for their acts of administration. Then in the year when Conon was archon (i.e. 462/1) he had removed from them all the additional functions (τὰ έπί'θετα) by means of which they guarded the constitution (δι’ ὧν ἧν ή τῆς πολιτείας φυλακή) and accorded some to the Council of the Five Hundred and some to the People and the Courts.



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This paper was read to the Oxford Philological Society in Trinity Term 1987.

I have warmly to thank for their comments on an earlier draft of this paper Professors W. G. Forrest and B. R. I. Sealey and Drs K. Adshead and C. B. R. Pelling. I may add that the earlier draft was written entirely without knowledge of the article, ‘The Athenian Archons: a note’ by Professor Forrest and Mr D. L. Stockton, published in Historia xxxvi (1987) 235 ff. Nor were they previously aware of my views.

1 Cf. P. J. Rhodes ad 25.2.

2 Aristoteles und Athen (Berlin 1893) ii 187.

3 CPh lix (1964) 13.

4 Cf. Rhodes l.c. It is to be noted that there is no good reason to postulate an increase in the powers, as opposed to the exercise of powers, of the Areopagus in the Demosthenic period, as proposed by Busolt-Swoboda, Griechische Staatskunde ii 926 and Sealey art. cit. A decree was not a law, and the decree of Demosthenes referred to by Dinarchus (i 62) can only have required the Areopagus to exercise powers it already possessed. (MacDowell, D. M., The Law in Classical Athens [London 1978] 190 states that the procedure of άπόφασις ‘was introduced by a law which must have been made around the middle of the fourth century’. Similarly Hansen, M. H.Eisangelia [Odense 1975] 18 and 39 f., though he does not speak of a law.) But the decree of Demosthenes, as reported by Dinarchus, spoke of the Areopagus ‘using the traditional laws’, which suggests that they were called on to exercise powers which they were deemed to have long had, not a power recently conferred, just as IG ii2 204 i 19 presumed that the supervision of the sacred land was within their powers. All such activities could be deemed to derive from the decree of Tisamenus with its vague implications.

5 Cf. D. M. MacDowell ad Andoc. i 84.

6 Podlecki, A.J., The political background of Aeschylean tragedy (Ann Arbor 1966) 97 f., suggested that Pericles was responsible for the establishment of the board of Nomophylakes, but Philochorus F 64 b suggests that they were part and parcel of Ephialtes’ reforms.

7 Cf. Wilamowitz (n. 2) i 68 n. 40.

8 See Appendix.

9 Grote, G., History of Greece iv 459 (1888 edition) assigned the γραφή παρανόμων to Ephialtes without argument. Hignett, C., A history of the Athenian constitution (Oxford 1952) 209–13, preferred a later date ‘when experience had shown the dangers of uncontrolled legislation’. He was followed by Wolff, H. J., SHAW (1970) ii 1522, who was inclined to attribute it surpris to someone like Nicias; he takes the absence of allusion to such a procedure in the alleged conversation of Pericles and Alcibiades in Xenophon's Memorabilia (i 2.40-6) as significant. But nothing in that conversation excludes the notion that there was a procedure to prevent the majority being induced to create confusion by ordering inconsistent things, and as to experience showing ‘the dangers of uncontrolled legislation’, the creation of a board of Nomophylakes in 462 (which Hignett rejects) argues that Ephialtes was well aware of such dangers. Martin, J., Chiron iv (1974) 31, follows Wolff and cites with approval the argument of Connor, W. R. (New politicians of Fifth-century Athens [Princeton 1971] 125 and n.66). In assessing the fact that the first recorded use of the γραφή παρανόμων (Andoc. i 17) related to 415, one must remember that the writing and hence the publication of speeches was a late innovation, if we may trust Ps.-Plut. Mor. 832d. One would not expect such information in Thucydides. If the procedure was introduced when the board of Nomophylakes was abolished, it is not greatly surprising that we do not hear of it earlier.

10 J. Mattin (n.9) 34 is sceptical about Ephialtes being a ‘convinced democrat’; ‘one would like to know why men like Pericles and Ephialtes, of whom the first clearly and the second probably belonged to the aristocracy, should have become democrat’!

11 Cf. Wade-Gery, H. T., Essays in Greek history (Oxford 1958) 105 ‘From 487 onwards, the archons are nobodies: this has not seriously diluted the Areopagus by 480, but the process is cumulative: by 461 there were probably few if any elected archons still sitting in the Council: its hollow prestige is smashed by Ephialtes.’

12 Antichthon v (1971) 1-34.

13 CSCA i (1968) 114 f.

14 Cf. Rhodes ad Ath. Pol. 22.5.

15 Pace D. H. Kelly, Antichthon xii (1978) 10 ff.

16 Rhodes ad Ath. Pol. 8.2 pointed out that the role of the Areopagus may have been no more than δοκιμασία. The author may have had in mind even less, viz. that the elected men were assigned by the Areopagus to suitable archonships. There is no warrant for Rhodes’ speaking of ‘A.P.'s statement that previously appointments had been made by the Areopagus’ or ‘a surprisingly modern procedure by which candidates were summoned to an interview to determine which should be appointed’ (my italics). Cf. Forrest-Stockton art. cit.

17 Thuc. vi 54.6. There is no knowing when the rule against iteration (Ath. Pol. 62.3) was introduced. Cf. Forrest-Stockton art. cit. One may add that unless iteration was practised in the sixth century it is hard to see how the tyrants ‘always took care that one of themselves was always one of the archons (έν ταῖς άρχαῖς) or indeed why Hippias, the oldest son (Thuc. i 20) and an old man in 490 (Hdt vi 107, 108), indeed grown-up by 556 (Hdt. i 61.1), was not archon until 526/5.

18 The archonship of Damasias (Ath. Pol. 13.2) is not an obstacle. He may have obtained the eponymous archonship by chance, and then resolved to keep it.

19 Cf. Thomsen, R., The Origin of Ostracism (Copenhagen 1972) 68108.

20 Cf. Kelly (n.15) 7 ff.

21 Cf. Badian's discussion of the impossibility of finding 500 a year, as the text of Ath. Pol. 22.5 seems to require ([n. 12] 17 ff.). But even 100 fresh aspirants a year would have been difficult.

22 Kelly (n. 15) 14 may indeed be right in supposing that the reform of 487/6 may have marked a lessening in the importance of the archonship itself, but it may not have meant a lessening in the quality of aspirants since membership of the Areopagus went with the office. Since promotion did not depend on tenure of the office of Prytany Secretary, the effect of the introduction of lot for it (Ath. Pol. 54.3) is of no relevance to what happened with the archonship.

23 Historia xv (1966) 369-76.

24 One of the Seven Sages, Tim. 20d, Protag. 343a. Lawgiver, Rep. 599e Phaedr. 278c, Symp. 209d.

25 Cim. 10.8, 15.2 f., Per. 7.8, 9.3-5. (Cicero, de officiis i 75 is speaking of his own day. Cf. Rawson, E., Athenaeum NS lxiii [1985] 63).

26 ‘Ephialtes, Eisangelia, and the Council’, Classical Contributions. Studies in honour of Malcolm Francis McGregor, ed. Shrimpton, G. S. and McCargar, D. J. (Locust Valley 1981) 125–34.

27 Commentary on Androtion F3-4 p. 112.

28 It is vain to seek in the Eumenides illumination on this matter. Whether Aeschylus had approved or disapproved of the reforms of Ephialtes, he could hardly have spoiled his play by suggesting that the Areopagus was no longer what it had been and perhaps should still be. Nor would such precise political comment have seemed appropriate to tragedy (cf. C. W. Macleod, JHS cii [1982] 131 f.). The play is concerned only with a case of murder and it is the role of the Areopagus in such cases which is its sole concern (681-4); the wrong-doing which that Council is to prevent (690—2) is murder, ‘a wakeful guard for those who sleep’ (705-6) (cf. art. cit. 129).

29 Sauppe fr. 164.

30 Cf. Sealey (n. 26). The relevant entry in the Lexicon Cantabrigiense is printed in Harrison, A. R. W., The Law of Athens: procedure (Oxford 1971) 51 n. 1.

31 In ii 37.2 Thucydides is referring to private life, He goes on in §3 to speak of public life (τά δημόσια) where fear of ‘unwritten laws’ continues to operate.

page 12 note 1 Cf. Rhodes ad Ath. Pol. 25.2

page 12 note 2 Cf. FGrH iii b. II p. 243 n. 11.

page 12 note 3 Cited with approval by J. Martin, Chiron iv (1974) 31.

page 12 note 4 The fact that Dinarchus used the word in his speech against Himeraeus (Sauppe xiv 2 = Philoch. F64a) suggests but does not prove that there were Nomophylakes before 322, the year of the death of Himeraeus, brother of Demetrius of Phalerum. One has no idea what Dinarchus was talking about. Such boards existed elsewhere (Ar. Pol. 1298b 29).

page 12 note 5 FGrH iii b II p. 242 n. 8.

page 12 note 6 Ibid., iii b I p. 339. Jacoby adds ‘or lost its importance’, which seems a needless addition. If the real function of the Board was taken from it, it was more likely to be abolished than maintained pointlessly. W. S. Ferguson (Klio xi [1911] 272 f.) suggested that they had the modest role of'caretakers, in literal sense of this term, of the νόμοι’ lodged in a νομοφυλακεῖον, but there is no evidence that there was a place so-called at Athens and the entries in the lexicographers (Pollux viii 102, Hesych s.v. ‘Charonium’, Suda s.v. ‘Νομοφυλακίoυ Θύρα’ strongly suggest that they have been misled by confusion of the δεσμοφυλάκιον.

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ΝΟΜΟΦΥΛΑΚΙΑ and the Areopagus

  • G. L. Cawkwell (a1)


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