Bibliography
Andrewes, A. ‘Sparta and Arcadia in the early fifth century’, Phoenix 6.
Cartledge, P. Sparta and Lakonia, chs 11 and 12.
Forrest, W. G. ‘Themistocles and Argos’, CQ 54.
Hornblower, S. The Greek World 479–323 BC, chs 2 and 3.
Powell, A. Athens and Sparta, ch. 4.
de Ste. Croix, G. E. M. The Origins of the Peloponnesian War, 4 (iv), 5 (v–vii) and Appendix 18.
13
THE DEMOCRATIC REFORMS OF EPHIALTES AND PERICLES, 462/1–451/0
Political background to the reforms
Themistocles’ condemnation c.469/8 had deprived his faction, the Athenian hawks (see Chapter 11), of a leader to pursue their twofold policy of opposition to Sparta and the advancement of democratic reform. The success of Cimon and the Athenian doves in the first half of the 460s was decisive, which meant that his opponents had to bide their time until an opportunity should arise when they could offer an effective challenge to him and his policies. The destruction of the Nine Ways colony in 465 and the long, unglamorous siege of Thasos from 465–463 (Thucydides 1.100.2– 1.101.3; AE29 p. 21; AE39 p. 25) made Cimon less popular in the eyes of his fellow Athenians, and thus it is from this time that we can date the revival of the Athenian hawks and their plans for a full democracy. The leadership of this faction had fallen to Ephialtes, son of Sophonides, who was renowned for his incorruptibility and his upright character, and to his chief assistant, Pericles. Very little is known about Ephialtes, but the fact that he was a general (Plutarch, Cimon 13) at some time between 465 and 463 confirms that he was an upper-class Athenian and not a poor man, as reported in later sources.
Ephialtes realized that the chief obstacle to the introduction of a full democracy was the council of the ‘Areopagus’, the last bastion and stronghold of aristocratic power and privilege. Almost everything about this institution was undemocratic: membership was for life and was confined to the ex-archons, who came from the two richest classes and had been chosen by lot since 487; moreover, this institution had wide-ranging powers (Ath. Pol. 8.4 – see below) and, even more disturbing to the ‘radical’ democrats, was unaccountable as a body for the exercise of these powers. One of the pillars of democracy is that no public official or public institution should be above the law but must be accountable to the people for its actions. However, Ephialtes and Pericles decided that an immediate, direct assault upon the Areopagus would not yield the required result and that there was a need for a phased attack:
First Ephialtes removed many of the members of the Areopagus, bringing them to trial for their conduct in office.
(Aristotle, Ath. Pol. 25.2)
These successful prosecutions of individual Areopagites for maladministration helped to create a mood of distrust among the ordinary Athenians and lowered the Areopagus’ prestige. Then in 463 the ‘radical’ democrats made their most ambitious challenge to date by bringing a charge of corruption against Cimon, the leader of the ‘moderate’ democrats and the main supporter of the Areopagus (Plutarch, Cimon 14). All our sources attest to Cimon’s incorruptibility, and therefore Pericles’ prosecution has to be seen as a political manoeuvre to test Cimon’s political standing. A verdict of guilty would probably have paved the way for an immediate attack on the Areopagus. However, Cimon was still sufficiently popular to be acquitted but this case does reflect the growing confidence of the ‘radical’ democrats.
Cimon’s success was short-lived. Although he won the debate in 462/1 against Ephialtes over the issue of supplying military help to the Spartans at Ithome (Plutarch, Cimon 16), he was disgraced by the Spartans’ rejection of the Athenians and his pro-Spartan foreign policy was discredited. This was the perfect opening for the ‘radical’ democrats not only to change Athenian foreign policy but also to pass their democratic reforms:
Then Ephialtes in the archonship of Conon took away from the council [i.e. Areopagus] all the additional powers through which it had the guardianship of the constitution, and gave some to the Boule of 500, and others to the people and the people’s jury-courts.
(Aristotle, Ath. Pol. 25.2)
The fact that such an august, ancient and powerful institution could fall so easily and so totally from political power marks the remarkable change in the people’s attitudes and confidence. Cleisthenes’ reforms of 508 had given the people the means to gain political experience, both in the ‘demes’ at local level and in the Ecclesia at national level. They had matured politically and had grown used to direct power and involvement in the political process. Therefore the position of the undemocratic Areopagus looked completely out of date in a modern, forward-looking state and thus its central role in Athenian politics had to be removed. The proof that the Athenians were ready to govern themselves was that no new major institutions were created to take over from the Areopagus. The three key institutions of the ‘Ecclesia’ (Assembly), the ‘Heliaea’ (People’s Court) and the Boule of 500 (Council of 500), all of which were controlled by the Athenian people, were considered to be sufficient and effective enough to govern Athens.
The reform of the Areopagus
The Areopagus was the main target for the reformers and in particular they planned to remove its wide-ranging legal powers and transfer them to the institutions of the people. Unfortunately the sources, which deal with the powers of the Areopagus before Ephialtes’ reforms, are few in number, ambiguous and often partisan, thus requiring a certain amount of speculation. Its powers can be grouped under two headings – religious and secular.
Religious powers
The Areopagus had jurisdiction over the religious crimes of intentional homicide, wounding or poisoning with intent to kill, arson and the destruction of the sacred olive trees (Demosthenes 23.22; Ath. Pol. 60.2), and it was allowed to retain these judicial powers after Ephialtes’ reforms. The Athenians, for all their political sophistication, were very conservative in religious matters and, as the ‘radical’ democrats’ chief aim was to curtail the political powers of the Areopagus, they did not want to alienate the people by challenging their deeply held religious feelings, thus endangering their secular reforms. In addition, it is possible that part of the ‘radical’ democrats’ propaganda to win over the people had been that the Areopagus had usurped political powers beyond its original powers over religious jurisdiction, and that their reforms were a restoration of the Areopagus’ former position in the state. Therefore there was little attempt to challenge its religious status and power.
Secular powers
The secular powers which the Areopagus possessed from the time of Solon are summarized by Aristotle:
He [i.e. Solon] … appointed the council of the Areopagus to guard the laws, just as previously it had been the overseer of the constitution, and it was this institution that in general watched over the most and the greatest of the affairs of the city, corrected wrongdoers with full powers to fine and to punish (it deposited the fines in the treasury without writing down the reason for the fine), and tried those who conspired to overthrow the democracy, for which purpose Solon had introduced a law of impeachment ‘eisangelia’.
(Aristotle, Ath. Pol. 8.4)
Thus it seems that the Areopagus exercised its political powers in three main areas: guardianship of the laws (‘nomophylakia’), supervision of the city’saffairs with the power to impose punishments, and defence of the constitution.
With regard to the Areopagus’ guardianship of the laws (nomophylakia), there is disagreement among modern scholars about what this actually entailed. Some believe, on the basis of Ath. Pol. 4.4, that this power gave the Areopagus only the authority to supervise public officials. However, others believe, on the basis of Demosthenes (23.62–63) and Philochorus (FGrH 328 F64), that it also gave the Areopagus the right to overrule the Ecclesia (Assembly) if it passed any illegal or undesirable legislation. Alternatively, it has been argued (e.g. by Hignett) that nomophylakia was not a specific power, but an all-embracing name, which was a sum
mary of all the powers that the Areopagus possessed in order to ensure compliance with the law – namely, the right to hear complaints against public officials, the right to punish wrongdoers in general, and the right to try conspirators against the constitution.
Whichever theory is correct, it is clear that the Areopagus had considerable political power. Even if this power was restricted solely to the supervision of public officials, it enabled the Areopagus to exert influence over the selection, the policies and the accountability of the top public officials. The reason for this was that the Areopagus was probably involved in the three elements that constituted supervision of the public officials: first, the ‘dokimasia’–the examination of public officials to see whether they were entitled to take up their post; second, the supervision of their conduct during their year of office; and third, the ‘euthuna’–an investigation at the end of an official’s year in office to see whether he had acted in accordance with the law. The control of the euthuna especially gave the Areopagus important political power and influence over the top public officials: first, because it was unlikely that the archons, destined to become lifelong members of the Areopagus if they passed their euthuna, would reject its advice during their tenure of office; and second, since the Areopagus had the power to accept or reject any complaints against public officials, such as the archons and generals, it thus controlled which public officials would and which would not have to undergo a euthuna.
Accountability was the watchword of Ephialtes’ reforms, and thus he was determined to make all public officials accountable to the Athenian people. Although the evidence is thin, it seems that the dokimasia of the archons before Ephialtes’ reforms was in two stages – first before the Areopagus, and subsequently before the Heliaea. Ephialtes removed this power from the Areopagus, and gave the first stage of the dokimasia to the Boule of 500 (Ath. Pol. 45.3). He also ensured that all the other public officials underwent their dokimasia before the Heliaea (Ath. Pol. 25.2), except for the Boule of 500, which was examined by the outgoing Boule as previously laid down by Cleisthenes in 508 (Ath. Pol. 45.3). Second, the right to hear complaints against public officials for misconduct during their year of office was taken from the Areopagus and given to the Boule of 500, which had the authority to try the official and to impose a fine up to a maximum of 500 drachmas (ML 73; Ath. Pol. 45.1; Demosthenes 47.3); if the penalty for the crime was greater than this sum, the Boule had to pass the case onto the Heliaea (Ath. Pol. 45.2). Ephialtes was determined that the people should have ultimate control in all serious cases. Third, Ephialtes, because he realized that the euthuna had to be rigorous in order to root out misconduct in office, established the principle that there would be a compulsory euthuna for every public official, whether there was a complaint or not, and that it would be conducted by a panel of ten ‘euthunoi’ (public auditors), chosen by and from the Boule of 500 (Ath. Pol. 48.4–5). In addition, he probably added the 30 ‘logistai’ (public accountants), whose task it was to investigate the accounts of all public officials who handled public funds (Ath. Pol. 48.3 – there were only ten in the fourth century). In this way Ephialtes wrested control of the public officials from an aristocratic body and gave it to the institutions controlled by the people.
The second power of the Areopagus was its supervision of the city’s affairs with the power to punish without giving reasons. This power of arrest and of jurisdiction gave the Areopagus extensive control over the private lives of ordinary citizens, as recounted by the fourth-century rhetorician, Isocrates:
Our ancestors kept watch over the lives of every citizen, dragging the disorderly before the Areopagus, which criticized, threatened or punished them as they deserved.
(Isocrates 7.46)
Such an intrusion into the private affairs of a comparatively small, increasingly liberal community would have caused great resentment. To make matters worse, there was a lack of accountability in the exercise of this power. The essence of justice is that it should be done and be seen to be done, which was manifestly lacking when the reasons for the imposition of punishments could be ignored. After Ephialtes’ reforms no other institution was given such all-pervading powers, and it was left to the responsibility of the individual Athenian to bring such matters to the Heliaea.
The third and final power of the Areopagus was: ‘it tried those who conspired to overthrow the democracy’ (Ath. Pol. 8.4). Clearly, the reference to democracy is anachronistic, reflecting the political situation in the late fifth and fourth centuries. But there is no reason to doubt that Solon did give the Areopagus the power to protect the Athenian constitution, which in his time was under threat from tyranny (Plutarch, Solon 19.4); Aristotle has simply stated the updated version of Solon’s law. However, by the beginning of the fifth century, it appears that two changes took place: first, this criminal charge was used in a wider sense to encompass any serious crime against the state, for example, treason, misleading the people; and second, the Areopagus’ power to convict was limited. It was deprived of final jurisdiction in crimes against the state, in which the penalty would be death or a very heavy punishment such as exile or loss of citizen rights. If a citizen was accused on such a charge, he would be impeached before the Areopagus. If this institution established that there was a case to answer, then the accused was brought before either the Ecclesia or (more likely) the Heliaea for final trial and verdict. Ephialtes removed this preliminary stage from the Areopagus and gave it to the Boule of 500. Any citizen could bring a charge of a crime against the state before the Boule, which would investigate the matter. If it decided that there was a case to answer, it would conduct the trial and, in the case of guilt, impose a fine up to a maximum of 500 drachmas. If the investigation revealed that the case was more serious with a greater penalty involved, then the Boule referred it to the Heliaea or, in exceptional circumstances, to the Ecclesia for judgement.
The Athenian political institutions after Ephialtes’ reforms
The removal of the Areopagus’ powers, which made public officials and individuals accountable to it but was not itself accountable as a body, was the essential prerequisite to the establishment of a full democracy. Ephialtes had established accountability to the people as one of the main pillars of democracy. From now on there would be a constant and regular system of calling all public officials and public institutions to give an account of their actions in office to the people or their chosen representatives. However, this on its own was insufficient, and thus the other pillar of democracy must be government by the people through the main institutions of the state. There are three branches of government, wherein power must be exercised by the people, if the constitution is to be defined as a democracy – the legislature, the judiciary and the executive. The legislature must be open to all citizens; every citizen should have an equal right to participate; all important decisions and laws must come before this body; and it must be genuinely sovereign, i.e. have the final power of decision in all policy of its choosing.
In the judiciary, the people should have the power to pass judgement in court and everyone must be equal before the law. With regard to the executive, the people should be allowed to participate in carrying out the decisions of the legislature. However, since this execution of policy and law can be conducted at any time only by a small portion of the people, it is essential that both equality of opportunity and the means (in the form of pay) to serve the state are provided. It is these criteria that must be applied to the institutions of Athens to see if Ephialtes and Pericles can be credited with the introduction of full democracy.
As mentioned above, Aristotle (Ath. Pol. 25) stated that the three main institutions to benefit from the demise of the Areopagus’ secular powers were the Ecclesia (the people), the Heliaea (the people’s jury courts) and the Boule of 500. The Ecclesia had possessed formal sovereignty from the time of Solon, but in reality this was checked by a number of factors. It probably met only ten times a year, which restricted the number of issues that could be dis
cussed and passed by the whole people, and which in all probability was dominated by the experienced aristocratic orators. With the exception of the most important issues, which had to be decided by the Ecclesia, the Areopagus and the top public officials had the power to take decisions between meetings. The reforms of Ephialtes radically changed this situation and confirmed in practice that the Ecclesia was the sovereign institution in Athens. All laws and policy-making came for decision before the Ecclesia, which all citizens over the age of 18 could attend. It is from now that ‘isegoria’ (the equal right to speak) became a reality, even if it had been legally in existence from the time of Cleisthenes. The ability of the ordinary Athenian to take a more active role and to participate more fully in the legislature was helped by the increase in the number of meetings of the Ecclesia. In the fourth century, 40 meetings per year were prescribed by law and this may date back to Ephialtes (Ath. Pol. 43.4–6). However, it is more likely that the previously prescribed ten meetings per year were kept but there was also a large increase in the number of extra meetings which the Athenians could summon. Thus it could be said that after 462/1:
Aspects of Greek History (750–323BC) Page 36
