I
COMPOSITION AND WORKING OF THE ASSEMBLY
ENTRY to the Ecclesia was limited by two conditions:
1. One must be an Athenian, that is to say a citizen. Until the middle of the fifth century this title belonged to anyone born of an Athenian father. But in 451-0 Pericles ordained that to be regarded as an Athenian a man must have both an Athenian mother and an Athenian father:1 children born of a foreign mother (μητρόξενοι) were henceforth in public law “bastards” (νόθοι). The privilege of citizenship might be won, and likewise lost, in exceptional cases: it was granted by decree of the people for outstanding services; it could be withdrawn by atimia or civic degradation, either provisionally or permanently.
2. One must have attained one’s majority. Majority was attained at eighteen years of age, by enrolment on the registers of the deme ; but, since usually two years of military service had first to be done, it was seldom that a man appeared in the Assembly before he was twenty.
Control was easily exercised by referring to the πίνας έκκλησιαστικός, which was the copy of the registers posted in the demes. But the registers themselves were not always trustworthy. Metics contrived to get themselves enrolled and so slipped into the Assembly. It was in vain that the terrible action against aliens was brought against them (γραφή ξενίας) which entailed condemnation to slavery; the “illegally registered” (oi παρέγγραπτοι) were so numerous as to necessitate from time to time a general revision of the lists (διαψηφισμός). Very rarely was the Assembly composed, to use Aristophanes’ words, of “pure grain” without intermixture of “bran.”
On the other hand, never more than a fraction of the people attended.2 One can reckon the number of citizens in 431 at about 42,000. The Pnyx could not have accommodated such a multitude, and yet it proved fully adequate. In time of war the majority of adults were far from Athens serving as hoplites, knights or rowers. In time of peace the country people, accustomed to live in scattered communities and interested only in their land and their cattle,3 were loth to undertake a journey often long and costly; the woodcutters of Aeharnæ remained behind in the forests of Parnes, and the small traders of remote villages did not desert their shops save on very important occasions; the people of the coast would not willingly sacrifice one or two days of fishing. As for the rich they hated to inconvenience themselves. The knights were reluctant to leave their villa in Colonus to mingle with the mob. Even those who dwelt in the town were not always disposed to suffer the tediousness of a long session: the Athenian when he had nothing to do lingered happily in the shade of the plane trees planted by Cimon in the agora, or loitered in the market-place, among the booths, or in the courts. Sometimes the Scythian archers were compelled to beat up the people, to hurry them along. In short, rarely were more than two or three thousand citizens seen on the Pnyx, and the majority of these were townsmen. Certain resolutions were supposed to be ta,ken by the “ entire people” (ο δήμος πληθύων); actually, in these cases, 6,000 votes constituted a quorum.
In spite of this abstention in the fifth century was not yet a great evil. Even the adversaries of Pericles did not quickly abandon the struggle, and we see them forming strong groups on the Pnyx in support of their leader, Thucydides son of Melesias. And even the peasants, when the business on the agenda made it worth while, put on their holiday garments and their Laconian shoes, and set out in the night in little bands, with staff in hand and cloak hanging round their shoulders or folded over their arm, and tramped down into Athens, singing old refrains as they went.4 But the main body of the Ecclesia was recruited from the suburbs of Melite, Ceramicus and the Piraeus. Aristotle affirmed that artisans, shopkeepers and hirelings were almost its sole constituent elements, and says in explanation of the fact: “ As all these sorts of men frequent the exchange and the citadel, they can readily attend the public assembly.”5 Socrates, even in his day, could find only craftsmen on the Pnyx.6 Nevertheless before the fourth century it was not found necessary to induce the Athenians to participate in public affairs by instituting payment for attendance at the Ecclesia (μισθός εκκλησιαστικός).7 Each went of his own accord to the Assembly “ carrying in a little flask something to drink, and a crust of bread, two onions and three olives.”8
At first the Ecclesia met only once each prytany, that is to say ten times a year. But the progress of democratic government brought with it an increase in the number of questions submitted to the people. Eventually there were as many as three additional regular sessions each prytany.9 The adjective “principal” was applied to the original single meeting (κυρία εκκλησία). The three supplementary meetings became in their turn “lawful” (νόμιμοι εκκΧησίαι). The order in which sessions succeeded each other and the days which were assigned to them varied from one prytany to another,10 since considerable difficulty was often experienced in finding places for them in the intervals of holidays and “inauspicious” days.11 In the whole year there were only two meetings with fixed dates: the first was held on the 11th of Hecatombaeon in order to afford the recently appointed Council opportunity of acquainting itself with events ; and the other after the Great Dionysia, on the 21st of Elaphebolion.
Although the ordinary sessions did not take place on fixed dates each had its order of the day, its “programme” allotted to it.12 Since the principal Assembly of the prytany had for long been the only one, it had an all-embracing programme: it proceeded to the epicheirotonia or vote of confidence in the administration of the magistrates, deliberated on the question of the provisioning and defence of the country, received the eisangeliai or accusations of high treason, heard the reports on confiscated property and on actions entered upon with regard to disputed successions; furthermore, in the sixth prytany, it determined whether there was occasion to apply the law of ostracism and to offer moral support to accusations brought against sycophancy or infidelity in the performance of promises made to the people.13 The three other ordinary sessions had a less comprehensive programme. One was reserved for the petitions brought by citizens who, after having placed an olive branch upon the altar, appealed for a sort of bill of indemnity in respect of a proposal contrary to an existing law or to a judgment given, a motion leading to reinstatement in forfeited rights or to the remission of punishment.14 The two last were devoted to remaining affairs: in each of them three matters of religious nature were dealt with, three of international import presented by heralds or ambassadors, and three of lay concern, that is chiefly of an administrative nature.15 Strict confinement to programme, however, was not obligatory, and the order which they laid down was not rigidly adhered to.16 Provided that a question had been included in the agenda within the legal term it could be discussed. The term was four days, and the posting of the programme took the place of a summons.17
But the Assembly always controlled the order of the day. An unforeseen event might demand an immediate measure or a discussion might not be concluded in one session. In such cases there was no need to wait for the next regular assembly, but an extraordinary (σύγκλητος) meeting could be convoked without publishing the agenda or observing the legal interval; they might even sit in permanence with instructions not to stray beyond the limits of the question in hand18. Finally, under the stress of public disaster, when there was urgent necessity, the prytaneis convened an “ assembly of panic and tumult,” summoning the citizens of the town by trumpet blasts and those of the country side by means of a bonfire kindled on the agora.19 Thanks to a procedure which had been gradually evolved and which allowed of modification, the Assembly of the people enjoyed the advantages of a systematic organization of work without the inconveniences of rigid confinement.
The meeting began early in the morning, at daybreak.20 The signal was given by a flag flying on the Pnyx. Immediately the police barred the streets which led to the agora, the rendezvous of loafers, and drove the citizens in the right direction.
As in all Greek cities the seat of the Ecclesia had originally been the agora, the public square where the “sacred circle” was situated in the Homeric era and which retained in certain towns the name of “sacred agora.”21 But in the fifth century, the great market-place was used only for the infrequent meetings at which the “entire people” was supposed to assemble. The hill of the Pnyx was more convenient for ordinary assemblies. It was reached by a steep ascent. A little distance from the summit there was a terrace from which a magnificent view over the sea, the agora, the Areopagus and the Propylæa of the Acropolis was gained. A wide semicircle was drawn out there with a depth of 260 feet by “0 feet in diameter and sloping gently from the periphery, formed by a strong breast-wall, towards the centre. With its surface of 7,180 square yards it could easily give standing accommodation to twenty-five thousand people and, on the benches which had been placed there,22 there was room for an additional eighteen thousand. The tribune was a platform cut out of the rock and surrounded by a balustrade; it measured 33 feet in front, and three steps gave it a height of nearly 4 feet. In the middle of the tribune arose a square mass of rock 11 feet in height ; it was the altar of Zeus Agoraios. Behind and above it was the official dais, which was reached by means of steps placed to right and left of the tribune. On the front of the dais on the face of the wall was a sundial, the work of the astronomer Meton, which had been there since the year 433. What was said and done in that enclosure open to the sky could be neither seen nor heard from without ; for the breast-wall was continued along the straight part by a partitioning wall, which had the double advantage of rebuffing indiscreet curiosity and of projecting sound towards the auditorium.23
The president of the Ecclesia in the fifth century was the epistatos of the prytaneis appointed each day by lot. The electoral assemblies and the plenary assemblies of the agora formed the only exceptions, for they were presided over by the nine archons. The president was assisted by a herald who, in his name, made communications to the Assembly, and by a secretary, the “ secretary of the city “ (γραμματβνς τής πόλβω?), who read out official documents. At the foot of the tribune, in the first tier of benches, sat the prytaneis, responsible for the maintenance of order, and who, for this purpose, had at their disposal archers commanded by six leæiarchs.
Before discussion began a religious ceremony was performed.24 The purifiers, the πζριστίαρχοι, sacrificed pigs on the altar, and, with their blood, traced the sacred circle round the assembly. Then the secretary read and the herald proclaimed the curse against anyone who should seek to deceive the people. Throughout the Assembly remained beneath the eyes of God: the session was by law suspended in case of storm, earthquake, eclipse, since the exegetai recognized in these phenomena a sign of Zeus (διοσημία)25
When these formalities had been observed the president ordered the herald to read the report of the Boule on the motion before the Assembly, the probouleuma. The president was forbidden by law to initiate (είσφβρέιν), and to open discussion (ερηματίζβιν) on any proposal which had not been referred to the Boule (άιτροβούλευτον).26 The Assembly, consequently, was compelled to refer to the Council all privately initiated motions and was not allowed to vote on the first reading. But the Council had not the right of veto : the probouleuma never explicitly rejected a motion, since it had already been considered by the people; it was a report either with a favourable decision or without conclusion, and the unfavourable opinion of the Council was implied in the formula “whatever shall please the people is best” (ο τι àv αύτω ceî αριστον).
After the reading of the probouleuma, in the normal course of events when the report was favourable, the president went on to the procheirotonia, that is voting by show of hands on the alternative which was before them: simple acceptance of the probouleuma or the throwing open of the matter to debate.27 Since this preliminary vote was taken on each article of the report separately the discussion, if it was resolved upon, might be either general or specific.
The herald opened the debate with the words 28 Who wishes to speak ?”29 Formerly it had been the custom, it seems, to ask: 30 Who among the Athenians over fifty wishes to speak ?” and then the question was put progressively to the younger ones. This privilege accorded to age had disappeared. Nevertheless a young man was not allowed to speak first. Moreover, there were in the Ecclesia citizens whose presence was tolerated but who were not permitted to speak : namely those who were involved in a suit which might end in the infliction of the dishonourable penalty of atimia; for even before judgment was pronounced they were automatically affected by the magic power of the ara, the curse attached to the law, and they had to be absolved by the courts before they could resume an active part in public life. If one of them dared to violate the interdict, any citizen could demand that the president should silence him, on condition that he undertook to bring against him a subsidiary action, a demand for a dokimasia (δοκιμασίας): by this procedure the accused ran the risk of full and definitive atimia, but the accuser was exposed to the penalty inflicted as pœna temere litigandi, with the result that it kept the unworthy out of the discussion and at the same time protected liberty of speech against sycophants. In short, apart from this quite exceptional case, every Athenian was permitted to maintain his opinion before the Ecclesia: equal liberty of speech (ίσηγορία) seemed to be the essential condition of democratic government.31 But as one might suspect a very small number availed themselves of this privilege. As a general rule it was the party leaders and their lieutenants who bore the weight of the discussion.
The citizen summoned to the tribune placed on his head a crown of myrtle. By that act he became inviolable and sacrosanct. What rights did he possess ?
Every Athenian had the right of initiative. This act of initiating, which entailed a certain responsibility, was recorded in the formula of the decree by the name of the one who had proposed it (such and such a person has said, είΠευ). Whether the author of a motion was a magistrate acting within the limits of his powers or a citizen intervening by virtue of private right, he could state his case at the first reading and so ensure that the terms of reference to the Boule should dictate to a large extent the probouleuma; consequently this often led to the adoption of the definitive decree by procheirotonia without discussion. If there was discussion the author of the motion was almost compelled to speak. Every Athenian had likewise the right of amendment. Voting on the probouleuma was not necessarily by yes or no. In the wording of the decree a careful distinction was always drawn between the part borrowed from the probouleuma or the original motion and that due to the author of the amendment, who was mentioned by name.32 In place of a simple addition to the probouleuma a counter-project might be proposed in opposition to the original project; this usually happened when the probouleuma reached no conclusion, that is when it was unfavourable to the project.
The liberty of speakers was, therefore, absolute; for in that lay the sovereignty of the Ecclesia. It was complete before the intervention of the Boule and remained complete afterwards. But precautions had to be taken that an essential right of the citizen should not degenerate and become prejudicial to the city. The rules of the Assembly provided against this contingency. Every motion, and every amendment or counter-project had to be formulated in writing. The text was handed in to the secretary, who checked its wording and assisted, if there was need, in modifications of form necessary before delivering it to the president. Abuses of the right of initiative were rigorously repressed; all unlawful proposals were rejected by the body of prytaneis and might lead to a summons before the courts; without affecting the other very severe penalties, a third condemnation on this count entailed a special degradation, the incapacity to bring forward any motion in the future. Moreover the president was equipped with power to prevent any obstruction or digressions from the matter under discussion : he could bring the speaker back to the question, and there is no evidence of his authority being disputed.
When the discussion was ended the prytaneis put the question to the vote (έπιψηφίζείν). In doing this their responsibility was involved, for it was their duty to refuse to proceed to the vote, no less than to discussion, upon an illegal motion. But the opposition of one did not prevail against the opinion of his colleagues, and if he persisted in it he was liable to be proceeded against by the summary process of endeixis and to be sentenced at least to the payment of a fine : one realizes that no small amount of civic courage was needed for Socrates in such a situation to make a stand against raging passions. Vote was taken by show of hands (χειροτονία). If there was any doubt the herald once more counted the ayes and the noes until the presiding body declared the result clear and indisputable. Secret ballot was reserved for those assemblies in which serious measures were to be taken against individuals, to plenary assemblies where the vote upon ostracism or the removal of legal interdictions (aheia) was taken, and to the ordinary assemblies which judged cases of high treason. The president announced the result of the vote. If the business of the day were finished he declared the session closed; if the discussion was not at an end he pronounced the adjournment to a subsequent session.
Even after the vote had been taken, the prytaneis in exceptional cases if they judged, from substantial evidence, that there had been a surprise vote, might submit a question to a second discussion: in those circumstances they either convened a new assembly or agreed to reintroduce the principal question in conjunction with some matter related to it. Thucydides gives us two dramatic incidents of this kind. In 428 the Assembly came to the decision that the Mitylenians who had revolted should without exception be put to death; but during the same night the Athenians became fearful of their bloodthirsty decision, and on the next day a second debate culminated in a less cruel sentence.33 In 415 the Sicilian expedition had been voted for; but five days later, during a session when the business of preparations was under discussion, Nicias reopened the question; he turned towards the tribune and spoke thus: “ And you, Prytanis, if you think it your duty to care for the commonwealth, and if you wish to show yourself a good citizen, put the question to the vote, and take a second time the opinion of the Athenians. If you are afraid to move the question again, consider that a violation of the law cannot carry any prejudice with so many abettors.” And he won his cause: the matter was debated again.34
II
POWERS OF THE ASSEMBLY
1. The Ordinary Assembly
Having seen the composition and the working of the Ecclesia it remains to examine its powers more closely. In principle they are easy to define : in an absolute democracy the sovereign people is all powerful. But, however, one must ask what in theory the Athenians understood by sovereignty and whether in practice they admitted that it suffered certain limitations.
According to the definition which Aristotle gives in the fourth century, but which is equally applicable to the preceding century, sovereignty, κυρία, embraces the right of peace and war together with the right of concluding and breaking off alliances, the right of legislation, the right of inflicting the pénalités of death, exile and confiscation and the right of hearing accounts.35 To the Ecclesia, therefore, belonged: (1) foreign policy; (2) legislative power; (3) the most important and particularly the political part of judicial power, it being understood that the cases which it did not reserve to itself passed on to the courts directly drawn from the people; (4) the control of executive power, that is to say the appointment and surveillance of all officers of state.
In the sphere of foreign policy the powers of the Assembly were extensive. Not only did it decide on questions of peace and war as well as of alliances, but it also attended to the minutest details. It appointed the ambassadors, gave them their instructions and received their reports. It received the heralds and ambassadors sent by other cities : in normal times it gave audience to them in two sessions in each prytany, and the understandings reached with them in the Boule were only of the nature of probouleumata which it converted into decrees, with or without modifications. Having ratified treaties it designated in addition persons to confirm them by oath or to receive the oath of the other signatory.
The right of controlling foreign policy would have been illusory if it had not carried with it the right of controlling the means; hence all military and naval matters pertained to the Ecclesia. In time of peace, as we have seen, in the principal session of each prytany it heard the report on everything concerning defence, including the state of the fleet; and we know that an old ship could not be put out of action without a decree of the people. In time of war it determined the number of contingents to be mobilized, the proportion of citizens and metics who were to serve as hoplites, and the proportion of citizens, metics, slaves and mercenaries who were to serve as rowers. It appointed the strategoi for the expeditions which it ordered, received their reports, directed their operations and ordered retreats by means of decrees. The authority which it exercised over the military leaders was further reinforced by enormous powers which conferred on it judicial sovereignty: one sees it condemning to exile or to death defeated generals and once even victorious generals.
That the most delicate negotiations, that the direction of the armies and the fleets should have depended in this way on forty thousand individuals all enjoying equal rights would appear monstrous and absurd, could one not discern beneath appearances the actual facts. One fact is indisputable : in the fifth century Athens pursued a foreign policy which was certainly not lacking in greatness; it created the most splendid maritime empire which antiquity had known. How can one explain this fact ? One must undoubtedly recognize that the forty thousand individuals who made up the Athenian people were capable of subordinating their particular interests and their personal passions to the common interest and the nobler passion of patriotism. They were ready to submit to necessary control. In actual fact the Boule was the controlling force in foreign policy and national defence: an Assembly which, left to its own devices, would have inevitably been fickle and changeable, was thus supplied with an element of stability. Five hundred Athenians spent a whole year in studying the affairs which ought to be submitted to the rest of the people: it was they who first received the ambassadors and negotiated with them, who then presented them to the Assembly and received its confirmation of decisions formulated in advance; it was they who were responsible for the general management of military administration. One must not forget that in spite of all his gifts of mob oratory Cleon did not capture the imagination of the people until he had entered the Boule. And it was undoubtedly through that indispensable medium that Pericles was enabled to impose on the people for more than thirty years the ascendancy of genius.
In order to determine with precision the legislative power of the Ecclesia one must be clear of the exact meaning of the words nomos (law) and psephisma (decree).36 It is not for an age such as ours, when the most learned jurists of all countries experience a singular difficulty in defining these two terms—and when French democracy has even introduced into political phraseology the hybrid term of “law-decree” —to criticize Athenian democracy for having left vague the difference which exists between these two fundamental ideas.37
At all events the public law of Athens proclaimed in principle that no decree, whether of the Council or of the people, overruled the law38 (ψήφισμα μηδζν, μήδε · βουλής μήτε Βήμου, νόμου κυριώτβρον elvat). But, on the other hand, Aristotle declares that “ the sovereignty of the people extends even to the laws” (κύριος ο Βήμος καί των νόμων βστι), and in his view it had been so since the fifth century since “ the Athenians governed then without according to the laws the same respect which they had done hitherto.”39 The contradiction is one of form. It admits of only one explanation. In principle, from religious scruple, the Ecclesia did not take to itself the right of formally abolishing existing laws and of making new ones, but it evaded this principle and invented the necessary forms for legislating by decree. To the Athenians of the fifth century the “laws” implied all the laws and especially the constitutional laws of Draco, Solon and Cleisthenes: none of them was abolished, but that fact did not prevent them from twice reforming the archonship, from depriving the Areopagus of the greater part of its functions, or from placing restrictions upon the power of the city. For Aristotle, who saw the reality lurking beneath the convention, this was a regrettable excess ; for the historian, who may rely on Aristotle for questions of fact, but who is familiar with the ever changing needs and developments of human society, it is a natural phenomenon which cannot be judged without knowledge of the cause which inspired it. And unquestionably the philosopher declares that “ the sovereignty of the law is the essential condition of constitutional government “ and that “ the State where everything is done by means of decrees is not properly speaking a democracy, since a decree does not admit of general application.”40 It remains to be seen whether the Athenian people, when it made laws under the form of decrees did so in a different manner and with greater precautions than when it passed occasional measures by means of ordinary decrees.
There is no doubt upon this point. We have knowledge of a whole series of decrees which, in their general character, are genuine ordinances of legislative or even constitutional importance, and which were not proposed in the Ecclesia by the normal procedure of the probouleuma i decrees such as those in which the status of a federated town was determined, a constitution given to a colony, or the grave question of the first-fruits due to the goddesses of Eleusis settled.41 In all these cases recourse was had to special and solemn formalities, to those same ones which were employed in renewing by an authorized transcription the principal laws of Draco.42 A commission of syngrapheis was appointed, analogous to the council of nomothetai, the legislative committee, which played a prominent part after the fall of the Four Hundred and of the Thirty, and which figured largely again under a regular form during much of the fourth century.43 The scheme elaborated by the syngrapheis was presented by the Boule, together with its observations upon it, to the Assembly for its definitive acceptance. Another precaution was taken : if in the slightest degree the “ existing laws “ had been interfered with by the new “decree,” the author of this sacrilegious and revolutionary proposal must avert from himself the malediction and the penalty which it involved, and come as a suppliant to beg in advance for pardon, and the immunity which he sought could only be accorded to him in a plenary assembly, by secret ballot, by a vote at least of six thousand. There is not, in fact, any justification for saying that the Athenian Assembly employed its legislative power thoughtlessly.
The people was also sovereign justiciary. But it delegated judicial power to those sections of the citizens which sat in the courts; the whole body, assembled in the Ecclesia, only reserved to itself the power to intervene in cases where the interest of the State was at stake, in order to furnish the tribunals by unfavourable votes with indications which it thought useful.
Since there existed in Athens no official ministry to represent popular sovereignty, an ordinary citizen, before bringing an action against the author of a delinquency or an offence which was prejudicial to the city, asked the people to grant him moral support in default of a formal mandate. Such was the intent of the preliminary charge or probole. This procedure was used to initiate actions against anyone who had violated the sanctity of certain feast-days, against sycophants,44 and in general against anyone who had deceived the people.45 In the fifth century it had been employed by the friends of the victorious generals of Arginusæ against their accusers; in the fourth by Demosthenes against Midias. Although the Ecclesia was not empowered to pronounce condemnation in this case, it was not excluded from taking an active share in the business : it called upon the two parties to state their case, and voted by yes in favour of the accusation (katacheirotonia) or by no in favour of the defence (apo- cheirotonia). But, however, if the accuser won the day he was not obliged to pursue the affair, but might content himself with this moral satisfaction. In the contrary event, the thesmothetai introduced the probole and the katacheirotonia before the tribunal.46
The eisangelia was much more serious. It was levelled against the author of a flagrant act against the safety of the State, and it delivered him, bound hand and foot, to the arbitrary decision of the judges. In the fifth century there was no text defining the acts which fell within the range of such an accusation. At the beginning of the fourth century it is true that a law (the νόμος είσαγγέλτικός) established this prosecution in cases of “grave harm done to the people” (αδικία τρος τον δήμον) ; but it determined the applications of the eisangelia in the past (treason, high treason, conspiracy, etc.) without limiting them in the future, so much so that it came by extension to be employed in cases of breaches of public morality, for example in cases of adultery. When an accusation of this kind was made in one of the principal sessions, the Ecclesia voted on the preliminary question of acceptance or rejection. In the case of an affirmative decision, the Council was called upon to say by probouleuma whether the affair should be judged by the Ecclesia or by a tribunal of heliasts, under the presidency of the thesmothetai. If the people as a body retained the right of judgment, its powers were unrestricted in the determination of penalties; if it deputed the task, it specified in the decree introducing the suit the law whose sanctions were t o be applied in case of condemnation. As one sees it eisangelia was a formidable weapon. But it must be noted that the Ecclesia seldom judged cases other than those of a frankly political nature, and that, in practice, the indeterminate character of the crime was counterbalanced at any rate by the indeterminate character of the punishment.
The sovereignty of the people in so far as executive power was concerned could be exercised, naturally, only through the magistrates. Their place in the State must be examined more closely, but for the moment it will be sufficient to indicate their relationship to the Ecclesia. The magistrates who were not drawn by lot from the people were appointed by election. The electoral committees were only special assemblies (άρχαιρεσίαι) which sat, as the others did, on the Pnyx, and which were likewise called into action by a decree of the Council. When once they had entered upon their duties the magistrates were subjected to vigilant supervision. In each prytany, nine times every year, they had to renew their powers by a vote of confidence, the epicheirotonia, and if they failed to obtain it they were sent before the tribunals. The most stringent control was exercised over the military and political leaders, the strategoi; but the precaution was extended to all orders of officials and particularly to those who had the handling of money. The whole of financial administration was dependent on the people: it voted the necessary sums for war, for embassies, etc., even to the ten drachmas required for the writing of the decree which they had just passed; not a single prytany was allowed to pass without its being presented with an account of the state of confiscated property. Finally, at the end of their term of office, the magistrates had to render account of their financial and executive administration before two commissions.
2. The Plenary Assembly
As a general rule the decrees of the Assembly were valid without a fixed quorum, whatever might be the number present or the size of the majority: the citizens of the Ecclesia acted in the name of all citizens. But, as we have already seen, there were certain cases in which, in principle, the decision had to be unanimous ; in fact this meant that it had to be taken by a proportion of the people sufficiently considerable to represent fairly the whole people. There were two conceptions each of which had its own tradition. The system of unanimous consent, of the liberum veto, derived from themis, from the ancient family custom which allowed, in important deliberations of the genos, the opposition of a single member to override the opinion of all the others (ττάντας ή τον κωλύοντα κρατβίν).47 The majority system came from dike, from interfamily law based on the reconciliation of opposing forces, and was connected with it through judicial combat and the custom of according victory to the most numerous party (vicdv Κότερα κοί ΙrXeeç όμόσοντι).48 At Athens it was the plenary Assembly (the δήμος πληθνων), convened in the agora and divided into tribes, which was considered representative of the unanimous opinion of the city; and what one might call the minimum of unanimity was a vote registered by six thousand people.49
In the fifth century the plenary Assembly of Athens was convened in two cases: (1) to declare which Athenians should be expelled under the law of ostracism; (2) to bestow adeia, impunity or pardon, either to the future author of an “unlawful” but necessary proposition, or to persons sentenced to atimia. These two cases at first glance seem to have no connection one with another. The connection was, however, there, and it becomes clear when one sees the plenary Assembly in the fourth century functioning in a third case, in the bestowal of citizenship. By ostracism as by adeia the community violated, in the name of a higher interest, the rules of common law which guaranteed civic rights to individuals. In theory the Athenians did not admit individual law, νόμος eV άνδρί ; like the Romans they thought: Ne privilégia sunto. But when the interests of the State demanded it they recognized the individual decree, ψήφισμα eV άνδρί. It was decrees of this kind, promulgated under particularly solemn conditions, which were resorted to in order to banish from Attica an individual who had not fallen within the range of the penal code, or in order to grant a bill of indemnity, a pardon or an amnesty.50
We must here, therefore, examine one of the most famous of Athenian institutions, ostracism.51
All the historians of antiquity agreed in attributing its origin to the founder of Athenian democracy, to Cleisthenes. But not until twenty years after this, in 488-7, does Aristotle note the first instance of the law of ostracism; and then, he tells us, it was applied three years in succession.52 Hence attempts have been made to deny that Cleisthenes was its creator. It is not impossible, indeed, that Aristotle knew only the oldest instances of ostracism from the decree of amnesty which recalled the victims in 481-0, and since banishment by ostracism terminated of right at the end of ten years, the decree of amnesty named only the citizens ostracized after 491-0. It is none the less very rash, and rather futile, to reject the unanimous testimony of the ancients. The long slumber of the law of Cleisthenes can be easily explained. Ostracism was not originally what it ultimately became. When Cleisthenes established it, Athens was emerging from a period in which civil wars had constantly been calling into play the collective responsibility of the gene : many times in the course of a single century the Alcmæonidæ had been banished en masse, and the leader of the oligarchs, Isagoras, in 508 expelled seven hundred families. No one better than the Alcmæonid Cleisthenes could realize the invidiousness of such a system, and the Athenians only wished to enjoy, as Aristotle says, “habitual indulgence towards the demos” In order to protect the government against the Pisistratidæ it was thought sufficient to proscribe the tyrants and their sons ; as for the members of the family “who had not been compromised in the troubles,” they were allowed to dwell in the country, with the warning that if they moved they would be exiled for ten years. But during the first Persian war they were suspected of maintaining intercourse with Hippias, a traitor to his ancient country, and even the Alcmæonidæ, or at least some of them, gave rise to suspicions. After the victory of Marathon it was resolved that the friends of the tyrants should be punished and the weapon suspended over their heads fell with crushing blows. In 487, ostracism was decreed against one of the kinsmen of the Pisistratidæ, Hipparchus son of Charmus, who had become the head of the family ; in 486, the year when the pentacosiomedimni began to share the archonship with the knights, it was decreed against the Alcmæonid Megacles, son of Hippocrates; in 485, in all probability, against Alcibiades the Elder.
But the very fact that it no longer affected only the family aimed at in the first instance enabled it to render the city the service of suppressing intestine struggles. In grave situations, especially in the face of the Persian menace, it would have been fatal to have had continual dissension on the question of national defence. What was to be done when two parties of almost equal strength impeded the administration of the State ? The ancient law of Solon, which inflicted the penalty of atimia on citizens guilty of political abstention in times of crisis, was notoriously inadequate and, moreover, it had fallen into desuetude. The superior interest of the republic ordained, therefore, that the work of the majority should be safeguarded against inopportune attacks by banishing from the land the leader of the minority. Thus in the years preceding the second Persian war, according as Themistocles succeeded in enforcing his ideas as to the necessity of a great fleet, his adversaries took the road of exile: Xanthippus was ostracized in 484, and Aristides in 483. If one takes foreign policy into consideration, there is perhaps less contradiction than might appear between these decrees of ostracism launched in successive blows and the amnesty which annulled them in 481 in order to bring all citizens together in sacred union.
The final disappearance of the tyrants and the defeat of the Persians left only the field of internal politics for the exercise of ostracism. In a new epoch it was used in turn by opposing factions to annihilate each other. Themistocles was expelled in 472 by the partisans of Cimon, and Cimon in 461 by the partisans of Ephialtes. Pericles saw his friend Damon sentenced to ostracism before, in “3, striking with this weapon his chief opponent Thucydides, son of Melesias. Thereafter the weapon forged by Cleisthenes and abused in its employment became blunted. At one moment, to which we cannot give a date, the people resolved to proceed to a vote of ostracism; but the voters melted away to such an extent that a quorum was not attained ; this abortive attempt would have remained for ever in oblivion had there not been discovered in 1910 among a heap of rubbish which had been thrown aside fragments marked with names.53 In 417, however, an attempt was made to decide between Nicias and Alcibiades by a vote of ostracism; but at the last moment the partisans of both took fright and united to vote against a wretched politician detested by all, namely Hyperbolus· This was the end of ostracism.
It was in the principal assembly of the sixth prytany, immediately after the middle of the year, that the prytaneis, in accordance with the order of the day, but without probouleuma, submitted to the people the question of whether they wished to proceed to ostracism or not. The vote was taken forthwith without discussion.54 If the decision was in the affirmative a day was fixed when the action of the ostra- kophoria itself should take place. Haste was essential, because it only was valid before the elections, and the elections took place every year from the seventh to the ninth prytany.
For the decisive session the agora was divided into ten sections, with an urn for each tribe. The official body was constituted by the nine archons supported by the full Boule. The vote was made by means of potsherds on which each one inscribed the name of the man whom he considered to be the enemy of the public: an ancient custom which had served before Cleisthenes’ day for proscription.55 The quorum was six thousand. But had there to be six thousand votes cast, as Plutarch says, or six thousand directed against one man, as Philochorus would have it ? Consider the spirit of the institution, the principle of unanimous consent; it is improbable that the Athenians would have thought it legitimate to deprive a citizen of his rights without assembling against him as many votes as were necessary in the fourth century to bestow citizenship on a stranger. In the forty- three ostraka, which have revealed to us an ostrakophoria unknown to history, are five different names without counting five illegible ones. On the day when this vote took place, if it had been enough for six thousand citizens to be present, a citizen might have been ostracized by 1201 or perhaps even by 601 votes. This is inconceivable. The result of the voting was proclaimed on the Pnyx. The victim of ostracism had to leave the country within ten days for ten years. He retained all his civil rights. Originally he could settle where- ever he wished outside Attic territory; but in 480, he was forbidden to settle on this side Cape Geræstos (the south point of Euboea) and Cape Skyllaion (the east point of Argolis). He was reinstated in all his political rights on the expiration of the fixed term, if an amnesty had not shortened this period, as was the case with the five men ostracized from 487-483, with Cimon and perhaps Thucydides.
The necessity for a plenary Assembly for the granting of adeia is explained by religious beliefs. According to the Greek conception the sanction of laws and judgments consisted in the curse which descended spontaneously on anyone who changed them, a curse which doomed him to atimia56 But, however, it might be necessary for the State to secure the testimony of an unqualified person, an alien or a slave, to persuade a criminal to denounce his accomplices. A very severe law inflicted the penalty of atimia on the public debtor and forbade the citizens to propose, and the prytaneis to put to the vote, any motion which had as its object the remission of his debt, the granting of time for payment beyond the extreme limit of the ninth prytany or his rehabilitation, before he had discharged his debt.57 What was to be done if it was to the public interest to suspend the interdict ? The treasures of the temples were protected by laws against impiety; how were they to be evaded in cases of absolute necessity ? It was particularly in financial matters that cases of conscience arose, but the Athenians, scrupulous though they still were in the fifth century, managed to resolve them. Here is an historic example of such a case. In 431 it had been decreed that the treasure of Athena should be utilized for the needs of the war, save for a sum of a thousand talents which was to remain in reserve on the Acropolis: death was to be the punishment for anyone who should make or submit to the Assembly a proposal to broach that reserve, unless the city should be threatened with extinction by an enemy fleet. In 413, after the Sicilian disaster and defection of Ionia, the people, obsessed by fear and at the end of their resources, removed the prescribed penalties.58 The man sufficiently bold and sufficiently patriotic to contemplate a proposal which might lead to his destruction, had first of all to be freed from legal prohibitions. He required a safe-conduct, an adeia, which he could only obtain by an individual decree issued in a plenary assembly. This extraordinary procedure, trammelled by imposing and complicated formalities, was in constant use in the fifth century in the administration of finance, for the simple reason that there was no public treasure as distinct from sacred treasures.59
III
THE HISTORICAL RôLE OF THE ASSEMBLY
After having followed the people to the exceptional sessions in the agora, we must return with it to the Pnyx, if we wish to gain a general idea of the part played by the Ecclesia.
Much adverse criticism of it is possible, and men were no more sparing of this in antiquity than in our day. Undoubtedly eloquence had in the Athenian Assembly, as in many parliaments of our own time, an influence quite apart from rationality of thought. In the scale of values eloquence ranked far above wisdom. A contemporary declared that the Ecclesia was more like an assembly of sophists than a gathering of citizens deliberating on the interests of the State.60 Sometimes, it is true, these dupes were mistrustful; but in what cases ? When it was an Antiphon, a partisan of oligarchy, who showed himself in the tribune. By the baits of men such as he they would not be caught.61 And what type of man was it who, according to Thucydides, put the people on their guard against these orators ? Cleon, the most redoubtable, the most violent of all, and his excellent advice was only an additional cleverness, the ruse of the demagogue who has good reason to believe that States are better governed by mediocrities than by the finest brains and who dissimulates his plans by speaking against smoothtongued orators.62 For this people who revelled in any contest whether intellectual or physical, the Pnyx likewise was a stage or a theatre. Whilst sessions concerned with humdrum affairs went on in solitude, the crowd flocked to the oratorical contests which took place in great times of political strife. It was of no avail that they were placed in surroundings conducive to reflection, seated on benches in the open air and not in the overcharged atmosphere of a room ; friends grouped themselves together, one excited another, and orators speedily inflamed their passions. After a day of tense emotions, when nerves were on edge, came twilight to warn them that the session must come to an end. At such moments hasty votes were taken, by show of hands, for measures which would be repented of at the end of a few months or regarded with horror a few hours later : Pericles was abandoned to the mercy of his adversaries, only to be recalled to power very soon afterwards; the victorious generals were condemned to death and, as soon as they had been executed, their accusers were attacked ; it was resolved that the rebellious Mitylenians should be exterminated and the next day a new63 session was called for in order that they might be pardoned. And then by limiting the political horizon to the semicircle of the Pnyx, men came “ to see an oration as they would to see a sight;”64 they lost sight of the outside world ; they imagined that the voting of a decree had an automatic effect; they mistook a resolution for an act; they relied on armies which existed only on paper (βπιστολιμαιοί).65 Finally, this people which knew itself or believed itself to be omnipotent, was possessed of a royal vanity. Full of admiration for itself it was amazed, indignant, when its whims were not complied with, and it accused of disobedience, suspected of treason those whom it had made responsible for their execution.
One must admit that the Athenian Assembly had many defects. But serious as were the disadvantages of the institution they were compensated by the inestimable advantages which were inherent in the regime and which were as precious as they were little obvious. In spite of everything it was in the Ecclesia that the people received its education. In these ancient democracies, which did not know the representative system, politics was not for the mass of citizens the simple duty of depositing a voting paper in a box at long intervals ; it was for them a regular preoccupation, a constant duty. They exercised a general function, undefined and therefore unlimited, which Aristotle calls with precision αόριστος αρχή.66 Each learnt his business as a citizen by practical experience. Sometimes by listening to the speeches of others men acquired the gift of speech ; many talents were quickened in this way, if one is to give credence to an assertion of Aristophanes and the example of a Demades.67 By following the debates of the Pnyx a man could learn the drift of affairs, great or small, and weigh divergent opinions ; and the facts are there to prove that the Athenians were sufficiently discerning not to allow themselves always to be swayed by the prestige of eloquence alone. The general tone of the orations which have come down to us reveals an audience with very high standards of taste and accustomed to noble flights of thought. Whatever charges one may bring against the Athenian multitude, liable as it was to be carried away by the seductive enticements of orators, it was nevertheless for that same multitude that were evolved those maxims on country, on law, on liberty, equality and philanthropy which have lost nothing of their grandeur and their beauty although they have become commonplaces of the moral heritage of mankind. If it is true, as Aristotle would have it, that the perfect city is that in which all the members scrupulously fulfil their duty as citizens, although obviously all could not be good men,68 Athens at least approached to that perfection in the time of Pericles, before free play was given to the caprices of the individual and public morality allowed to sink to the level of private morality.
To appreciate properly the rôle of the Assembly one must, therefore, clearly distinguish between the fifth and the fourth centuries. That distinction is strikingly revealed by a scrutiny of the list of leaders of the Athenian people in the two eras. The amorphous mass had its guiding spirit. There was an almost unbroken chain of party leaders who, by the majority which they commanded, were enabled to exercise a kind of special magistracy not to be found in the constitution, a hegemony based on persuasion. Though without official title this person filled the position of first minister of the democracy; he was the “prostates” of the demos69 Surrounded by his supporters, he defended his programme against the leader of the opposing party and remained master of the government so long as he succeeded in gaining the assent of the Ecclesia for his proposals. In periods when the people was excited by great questions of general, of national, interest it selected its proxy for preference from the strategoi responsible for the supervision of foreign policy ; it chose him usually from illustrious families, from those which could boast of numerous ancestors and possessed large estates. Cimon the son of Miltiades and the Alcmæonid Pericles, both great proprietors, are remarkable examples of those strategoi who, as prostatai, directed the government of the fifth century. Their successors were merchants and traders, not the sausage-seller whom Aristophanes ridicules, but Lysicles the sheep dealer, Cleon the tanner, Cleophon the maker of musical instruments, Hyperbolus the lamp maker: these men represented during the Peloponnesian war a class whose private interests did at least coincide with those of the republic, since in endeavouring to maintain the economic supremacy of their city they sought to protect its maritime empire.70 In short, the popular Assembly of Athens chose its leaders no more ill-advisedly than do so many of our modern assemblies which emanate from the people by election.
It knew how to protect itself against its own impulses. We have already noticed, when seeing it at work, some of the precautionary formalities with which it hedged in its debates. It forbade the adoption of any proposal which had not first been submitted to the deliberations of the Council, and it voted on decrees only at the second reading. Any individual measure which was contrary to the principles of common law, whether it was favourable or detrimental to a person, was only valid if a large quorum were present. But our attention must be directed in particular to the institutions whose object it was to protect the laws against the abuse of decrees.
In the fifth century the need for regular and permanent means for effecting the modification of existing laws or the adoption of new laws was not yet felt. In certain exceptional cases, for example for the fixing of the status of the confederate cities, for the determining of the weighty question of the first fruits due to the goddesses of Eleusis or for putting in force the laws of Draco, there was appointed a committee of syngrapheis, experts whose conclusions were converted by the Council into probouleumata and by the Ecclesia into decrees.71 Each time that democracy was restored after an oligarchical revolution it appointed a committee of nomothetai to select from the laws, conjointly with the Boule, those which ought to be abrogated and those which ought to be retained ; it was in this way that the nomothetai functioned after the fall of the Four Hundred, from 410 to 404,72 and then after the fall of the Thirty from 403 to 399.73. But the nomothetai of the fifth century, as well as the syngrapheis, differed greatly from the nomothetai who, during a large part of the fourth century, were to act as a brake upon the legislative power of the Assembly. At this time they were never more than auxiliaries charged by the people itself with a temporary and special task.
It was to another institution, a judicial institution, that the wisdom of an earlier generation looked for confining in practice the omnipotence of the Ecclesia within just limits. Such was the service which the public action against illegal proposals, the graphe paranomon, rendered.74 In fact this process was, by its origins, its procedure and its sanctions, one of the most formidable weapons at the disposal of the criminal law of Athens.
In early times the laws bestowed by the gods were protected by the sacred power of the curse. When written laws came into being they had for guardian the most august tribunal of all, the one which was invested with essentially religious functions, namely the Areopagus.75 Then came the reform of Ephialtes which divested the Areopagus of all the functions which made it the guardian of the constitution.76 It was then that democracy, no longer finding an external check, imposed one upon itself. The first use which it made of its sovereignty was to confine it within insuperable barriers.
Every citizen might become the protector of the laws by bringing an action against the author of an unlawful motion and even against the president who had not refused to put it to the vote. The accuser had to bring forward his complaint in writing, and to indicate the law which he considered had been violated.77 He might announce his intention upon oath (νπωμοσία) in the Assembly of the people, before or after the vote upon the provisions which he judged illegal.78 This official declaration had the effect of suspending the validity of the decree until after judgment had been given.79 The tribunal, composed of a thousand jurors at least and sometimes of six thousand,80 sat under the presidency of the thesmothetai.81 Any motion might be attacked on the ground of error in form: it was sufficient that the severe rules of procedure had not been meticulously observed. A decree was illegal if it had been submitted to the Assembly without having been previously examined and reported upon by the Council or without having been included in the order of the day by the prytaneis.82 A law was illegal if it was not proposed as the result of a vote expressed in the first assembly of the year, and if it had not been displayed in due time and place. Still more serious, as one might expect, was the illegality which arose not from form but from substance. If it was a decree which was in question the accuser was not debarred from urging the evil which would result from it, in order to prejudice the people against the accused ;83 but he was obliged to establish beyond doubt that the decree was in contradiction of existing laws.84 If a law was concerned, anyone was allowed to demand reparation for the harm done to the republic, by having recourse to a special action (μη èmrrjSetov νόμον θβιναι);85 but, with the graphe paranomon, the accusation could only be made in connection with a new law which was in contradiction to a law which had not been abolished.86 Thus all those whose names were inscribed on a decree issued by the Ecclesia or on a law adopted by the nomothetai were under a grave responsibility. The punishment for illegality depended upon the tribunal:87 it was usually a comparatively heavy fine;88 but sometimes it was the penalty of death.89 After three condemnations on the score of illegality the right of making any proposal in the Assembly was forfeited.90 For the author of an illegal motion prescription was acquired at the end of a year; but for the motion itself there was no prescription, it might always be annulled by a sentence of the tribunal.91
Thus, as we see, Athens knew how to prevent its citizens from abusing their right of initiative and, as a consequence, restrained in practice the legislative power of democracy. Before introducing a measure an orator had to realize that for a whole year he must be prepared to answer for it with his head. By that device the Assembly prevented its passions and caprices from prevailing over the traditions and permanent interests of the city.92 The sovereign people of its own will placed itself under the sovereignty of law, and by imposing upon itself this discipline it gained inestimable advantages. It had an imprescriptible means for making good its mistakes and it permitted the defeated statesmen to appeal from the demos to a better informed demos. It made, so far as was possible, contradictions and obscurities disappear from the laws, so successfully that the progressive simplification of the texts enabled lawyers to be dispensed with. Finally, by subjecting itself to the graphe paranomon Athenian democracy was to reap its greatest reward : it made fruitless any attempt to destroy the constitution by constitutional measures and left the oligarchic party no alternative save revolution.93 Neither the Four Hundred nor the Thirty could adapt themselves to such an institution; but the triumph of democracy gave it supreme sanction.