Note 684 — Chapter XLVI · CONSTITUTIONAL AND JUDICIAL CHANGES AT ATHENS UNDER PERIKLES.

Demosthen. cont. Neær. p. 1372; cont. Aristokrat. p. 642.

Meier (Attischer Prozess, p. 143) thinks that the senate of Areopagus was also deprived of its cognizance of homicide as well as of its other functions, and that this was only restored after the expulsion of the Thirty. He supposes this to be proved by a passage of Lysias which he produces (De Cæde Eratosthenis, pp. 31-33).

M. Boëckh and O. Müller adopt the same opinion as Meier, and seemingly on the authority of the same passage, (see the Dissertation of O. Müller on the Eumenides of Æschylus, p. 113, Eng. transl.) But in the first place, this opinion is contradicted by an express statement in the anonymous biographer of Thucydidês, who mentions the trial of Pyrilampês for murder before the Areopagus; and contradicted also, seemingly, by Xenophon (Memorab. iii, 5, 20); in the next place, the passage of Lysias appears to me to bear a different meaning. He says: ᾧ καὶ πάτριόν ἐστι καὶ ἐφ’ ὑμῶν ἀποδέδοται τοῦ φόνου τὰς δίκας δικάζειν: now—even if we admit the conjectural reading ἐφ’ ὑμῶν in place of ἐφ’ ὑμῖν to be correct—still, this restoration of functions to the Areopagus, refers naturally to the restored democracy after the violent interruption occasioned by the oligarchy of Thirty. Considering how many persons the Thirty caused to be violently put to death, and the complete subversion of all the laws which they introduced, it seems impossible to suppose that the Areopagus could have continued to hold its sittings and try accusations for intentional homicide, under their government. On the return of the democracy after the Thirty were expelled, the functions of the senate of Areopagus would return also.

If the supposition of the eminent authors mentioned above were correct,—if it were true that the Areopagus was deprived not only of its supervising function generally, but also of its cognizance of homicide, during the fifty-five years which elapsed between the motion of Ephialtês and the expulsion of the Thirty,—this senate must have been without any functions at all during that long interval; it must have been for all practical purposes non-existent. But during so long a period of total suspension, the citizens would have lost all their respect for it; it could not have retained so much influence as we know that it actually possessed immediately before the Thirty (Lysias c. Eratosth. c. 11, p. 126); and it would hardly have been revived after the expulsion of the Thirty. Whereas, by preserving during that period its jurisdiction in cases of homicide, apart from those more extended privileges which had formerly rendered it obnoxious, the ancient traditional respect for it was kept alive, and it was revived, after the fall of the Thirty, as a venerable part of the old democracy; even apparently with some extension of privileges.

The inferences which O. Müller wishes to draw, as to the facts of these times, from the Eumenides of Æschylus, appear to me ill-supported. In order to sustain his view, that, by virtue of the proposition of Ephialtês “the Areopagus almost entirely ceased to be a high court of judicature,” (sect. 36, p. 109,) he is forced to alter the chronology of the events, and to affirm that the motion of Ephialtês must have been carried subsequently to the representation of the Eumenides, though Diodorus mentions it in the year next but one before, and there is nothing to contradict him. All that we can safely infer from the very indistinct allusions in Æschylus, is, that he himself was full of reverence for the Areopagus, and that the season was one in which party bitterness ran so high as to render something like civil war (ἐμφύλιον Ἅρη, v. 864) within the scope of reasonable apprehension. Probably, he may have been averse to the diminution of the privileges of the Areopagus by Ephialtês: yet even thus much is not altogether certain, inasmuch as he puts it forward prominently and specially as a tribunal for homicide, exercising this jurisdiction by inherent prescription, and confirmed in it by the Eumenides themselves. Now when we consider that such jurisdiction was precisely the thing confirmed and left by Ephialtês to the Areopagus, we might plausibly argue that Æschylus, by enhancing the solemnity and predicting the perpetuity of the remaining privilege, intended to conciliate those who resented the recent innovations, and to soften the hatred between the two opposing parties.

The opinion of Boëckh, O. Müller, and Meier, respecting the withdrawal from the senate of Areopagus of the judgments on homicide, by the proposition of Ephialtês, has been discussed, and in my judgment refuted, by Forchhammer, in a valuable Dissertation, De Areopago non privato per Ephialten Homicidii Judiciis. Kiel, 1828.