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MÜLLER'S SECOND DISSERTATION-THEORY CONCERNING THE POLITICAL OBJECTS OF
THE EUMENIDES - ORIGIN AND PROGRESS OF THE AREOPAGUS — ITS POWERS
57. We have hitherto found in Müller a useful and (with Dissertation. some slight qualifications) trustworthy guide to the proper study
of Æschylus : as indeed he may well be considered in all matters connected with the mythology, antiquities, and local customs of the Greeks. We are now to regard him in a somewhat different light. Having too hastily taken for granted the unwarrantable assertion of a brother critic, he has built thereon a theory by no means borne out by the evidence he adduces in its support. 58. The assertion to which we allude, made in the first instance by Meier, is this : “That by the motion of Ephialtes the Areopagus was deprived of the
whole of its jurisdiction in cases of homicide.” Upon which Theory con- is founded the following opinion of Müller: “That the special political ob- object of Æschylus in his Eumenides, was to plead the cause Eumenides. of the Areopagus, and to dissuade the Athenians from depriving
it of its jurisdiction in cases of homicide.” 59. In order to examine this theory at greater length, we have purposely reserved the consideration of Müller's Second Dissertation ( on the Political Relations of the Eumenides,'') for a separate chapter. But before entering on the discussion, we shall do well to lay before the reader a brief account of the Areopagus itself; to trace its growth as a political power at Athens; and to enumerate the functions it actually possessed and exercised at the period when it was attacked by the Democratic party.
60. The Senate of Areopagus is known to have existed as The Area court for the trial of homicide long before the time of Solon : but that legislator was the first who definitely arranged and legalized its constitution ; he also enlarged its authority to such an extent, that he may almost be considered as its founder. As we have already stated (31), its numbers were annually reinforced by those citizens who had worthily discharged the office of Archon. The members therefore were not taken from the many, but the few ; not elected, but succeeding to their new dignity, at the end of every year, by a kind of hereditary right; they were not accountable (ÚTev uvoi) as were all the other magistrates of the state; and finally, they alone, when once invested, enjoyed a life tenure.
61. Such being its exclusive prerogatives, we cannot be surprised that this court should gradually come to be placed in direct antagonism with the rapid progress of an aspiring democracy. The measure carried by Aristides after the battle of Platæa, by which all classes of citizens were made eligible for the Archonship, did not, as might have been expected, tend to diminish the oligarchic character of the Areopagus. On the contrary, it afterwards stood forward more prominently than ever, as the representative and rallying point of the Aristocratic party : Cimon became its staunchest supporter: Pericles, on behalf of the democratic faction, its most inveterate opponent.
62. The powers of the Areopagus, as defined and established its powers. by the laws of Solon, were twofold :-Judicial and Senatorial. Its judicial authority extended over the following crimes, enumerated by Demosthenes, cont. Aristocr. p. 627 : Wilful Murder: Wounding with intent to kill : Arson : and Poisoning. Its senatorial functions were of a less limited character. Besides taking under its cognizance a variety of offences, such as Impiety, Sacrilege, Treason, Conspiracy against the Republic, &c., the Areopagus claimed an extensive and undefined control over the lives and behaviour of the citizens in general, like that of the Censors at Rome : it reprimanded or punished all immoral
conduct, indolence, prodigality, and such-like vices; in a word, as Isocrates tells us (Areop. p. 149),—'Elecópouv Tòv Blov TÒV εκάστου, και τους άκοσμούντας ανήγον εις την βουλήν η δε τους μεν ένουθέτει, τοϊς δ' ήπείλει, τους δ' ως προσήκον έκόλαζεν. To crown all, it maintained a sort of general supervision over the measures of the popular assembly, and took care that they should be in accordance with the existing laws. 63. It may easily be imagined that such privileges as these, however justly or moderately exercised, were found to be incompatible with the increasing preponderance of the democratic element. Pericles and the other orators, whose influence depended on their being able to sway the people by the mere force of eloquence, soon discovered an insuperable barrier to their ambitious schemes in the Areopagus. They would willingly have abolished it altogether. 64. But the feelings of veneration with which the citizens still continued to
regard it, almost in spite of themselves, rendered this impossible. Revered by “ It was invested,” says Grote (vol. v. p. 481), "with a kind of
religious respect, and believed to possess mysterious traditions emanating from a divine source; especially, the cognizance it took of intentional homicide, was a part of the old Attic religion not less than of judicature.” In short, the Athenians generally would speak of it in terms similar to those employed by Æschines (in Ctes. 9),-Την σκυθρωπόν και των μεγίστων κυρίαν βουλήν.
65. Nevertheless, though the popular leaders dared not direct their attacks against the actual existence of the Areopagus, they determined to abridge its authority. Ephialtes, a partisan of Pericles, and, according to Plutarch, equal to him in probity, at length succeeded in carrying a decree, which (as Aristotle informs us, Pol. ii. 9, “mutilated” the powers of the Areopagus, Triv μεν εν 'Αρείω Πάγω βουλήν Εφιάλτης έκόλουσε και Περικλής : and thus are we brought to the question which it will be the main object of this chapter to discuss : viz.--Against which part of its authority was the decree of Ephialtes directed: the Judicial, or the Senatorial ?
66. The first critic who pronounced a decided opinion on this contested subject was, as we have already stated, Meier. He
Meier's and Boeckh's opinion.
considered that the Areopagus was deprived not only of its functions as a Senate, but also of its whole jurisdiction in cases of wilful murder; and that its full rights were not restored until the expulsion of the Thirty Tyrants, more than 50 years afterwards. 67. His opinion was followed by Boeckh, in the preface to his Index Lectionum, 1826-27; and finally adopted by Müller; who makes it the groundwork of his theory concerning the political intentions of Æschylus in the Eumenides. It is with Müller Müller's that we have chiefly to deal ; and since he quotes the principal amined. arguments of Meier and Boeckh in support of his proposition, we cannot do better than examine them separately, and in juxtaposition with the evidence that other writers have collected for their refutation. 68. “ In the first place,” says Müller (Dissert. p. 113), “ cases of homicide (dikal povikal) formed the most important part of the Areopagus's jurisdiction, nearly the whole of which, according to Plutarch, it lost at that conjuncture; and this, moreover, was what gave its members (especially in times of civil commotions and riots) considerable political authority,the very thing of which Ephialtes wanted to deprive it.” Now, the passage in Plutarch to which he alludes is as follows: Ως δε πάλιν επί στρατείας εξέπλευσε (Κίμων) τελέως ανεθέντες οι πολλοί και συγχέαντες τον καθεστώτα της πολιτείας κόσμον, τα πάτρια νόμιμα οις έχρώντο πρότερον, 'Εφιάλτου προεστώτος, αφείλοντο της εξ Αρείου Πάγου βουλής τας κρίσεις Tv óriywv åtáoas. (Plut. Vit. Cim. cap. xv.) 69. “ The word kploecs,” says Forchhammer in his able treatise,' page 15, “cannot be taken in the above passage as applying to any but the senatorial decisions of the Areopagus, since causes which were settled by it in the judicial character were invariably called δίκαι: as in such expressions as δικάζειν την βουλήν την εν Apelą trányo póvou. The fact of Plutarch's using the word kploecs in this place, proves at least that judicial causes were not the only ones of which Ephialtes sought to deprive the court; and the additional words, trv óriywv åráoas, implying that
1 "De Areopago non privato per Ephialten homicidii judiciis contra Boeckhium disputatio,” published at Kiel in 1828.
certain cases were excepted, may (cæteris paribus) be as reasonably referred to cases of homicide as to any other.” The same writer proceeds to quote several passages in Plutarch of a like import, in all of which he considers the word Bourn) as pointing to the senatorial power ; but these arguments are not conclusive, because the Areopagus, either as Court or Senate, had no other name than Βουλή: it was scarcely ever called δικαστήριον.
70. It is difficult to conceive how “its position as a court for trying homicide, gave the Areopagus considerable political authority.” Trying prisoners for murder, however solemn and imposing a ceremonial, has nothing to do with politics. Let us hear what Bishop Thirlwall says on this point, (vol. iii. p. 24,)— “Pericles and his partisans could have had no object in attacking that part of the criminal jurisdiction, which was at once the most venerable, the most rarely exercised, and the least liable to abuse. For it does not appear that hitherto the spirit of party had become so furious at Athens, as to resort to assassination; though we shall meet with a remarkable instance of such an excess not long after.” Since, then, the popular leaders could not apprehend being subjected to the penal authority of the court as murderers, what can be more improbable than that they should attack this part of its jurisdiction,—the part in which they would meet with the strongest opposition from the people,—the only one, in short, of all its powers, which was not likely to prejudice their interests ?
71. We come now to Müller's second argument. " In the next place,” he says, in p. 113," it was scarcely possible to sever a portion only from that jurisdiction, (i.e. homicide,) because whatever could be detached from it had already been transferred to other courts, namely those of the Ephetæ; at the same time, it is very likely that certain actions for impiety (ảoéßela), which also came under the cognizance of the Areopagus, and were of a more limited and definite nature, were left to its decision.” We fully agree with Müller, “ that it was scarcely possible to sever a portion only from the homicidal jurisdiction," and for that very reason it appears doubly probable that this jurisdiction was not
Müller's Second Argument.