Note 289 — Chapter LXIV · FROM THE ARRIVAL OF CYRUS THE YOUNGER IN ASIA MINOR, DOWN TO THE BATTLE OF ARGINUSÆ. (continued 2)

I cannot concur with the opinion expressed by Dr. Thirlwall in Appendix iii. vol. iv, p. 501, of his History, on the subject of the psephism of Kannônus. The view which I give in the text coincides with that of the expositors generally, from whom Dr. Thirlwall dissents.

The psephism of Kannônus was the only enactment at Athens which made it illegal to vote upon the case of two accused persons at once. This had now grown into a practice in the judicial proceedings at Athens; so that two or more prisoners, who were ostensibly tried under some other law, and not under the psephism of Kannônus, with its various provisions, would yet have the benefit of this its particular provision, namely, severance of trial.

In the particular case before us, Euryptolemus was thrown back to appeal to the psephism itself; which the senate, by a proposition unheard of at Athens, proposed to contravene. The proposition of the senate offended against the law in several different ways. It deprived the generals of trial before a sworn dikastery; it also deprived them of the liberty of full defence during a measured time: but farther, it prescribed that they should all be condemned or absolved by one and the same vote; and, in this last respect, it sinned against the psephism of Kannônus. Euryptolemus in his speech, endeavoring to persuade an exasperated assembly to reject the proposition of the senate and adopt the psephism of Kannônus as the basis of the trial, very prudently dwells upon the severe provisions of the psephism, and artfully slurs over what he principally aims at, the severance of the trials, by offering his relative Periklês to be tried first. The words δίχα ἕκαστον (sect. 37) appear to me to be naturally construed with κατὰ τὸ Καννώνου ψήφισμα, as they are by most commentators, though Dr. Thirlwall dissents from it. It is certain that this was the capital feature of illegality, among many, which the proposition of the senate presented, I mean the judging and condemning all the generals by one vote. It was upon this point that the amendment of Euryptolemus was taken, and that the obstinate resistance of Sokratês turned (Plato, Apol. 20; Xenoph. Memor. i, 1, 18).

Farther, Dr. Thirlwall, in assigning what he believes to have been the real tenor of the psephism of Kannônus, appears to me to have been misled by the Scholiast in his interpretation of the much-discussed passage of Aristophanês, Ekklezias. 1089:—

Upon which Dr. Thirlwall observes, “that the young man is comparing his plight to that of a culprit, who, under the decree of Cannônus, was placed at the bar held by a person on each side. In this sense the Greek Scholiast, though his words are corrupted, clearly understood the passage.”

I cannot but think that the Scholiast understood the words completely wrong. The young man in Aristophanês does not compare his situation with that of the culprit, but with that of the dikastery which tried culprits. The psephism of Kannônus directed that each defendant should be tried separately: accordingly, if it happened that two defendants were presented for trial, and were both to be tried without a moment’s delay, the dikastery could only effect this object by dividing itself into two halves, or portions; which was perfectly practicable, whether often practised or not, as it was a numerous body. By doing this, κρίνειν διαλελημμένον, it could try both the defendants at once: but in no other way.

Now the young man in Aristophanês compares himself to the dikastery thus circumstanced; which comparison is signified by the pun of βινεῖν διαλελημμένον in place of κρίνειν διαλελημμένον. He is assailed by two obtrusive and importunate customers, neither of whom will wait until the other has been served. Accordingly he says: “Clearly, I ought to be divided into two parts, like a dikastery acting under the psephism of Kannônus, to deal with this matter: yet how shall I be able to serve both at once?”

This I conceive to be the proper explanation of the passage in Aristophanês; and it affords a striking confirmation of the truth of that which is generally received as purport of the psephism of Kannônus. The Scholiast appears to me to have puzzled himself, and to have misled every one else.