CHAPTER VIII ATHENIAN JURISPRUDENCE-LAWS AND CONSTITUTION OF SOLON T HE principal military operations in which the Greeks were engaged, aside from intestine disturbances and revolutions, intermediate the period of the Scythian expedition (B. C. 513) and the battle of Marathon (B. C. 490) were the Ionian Wars, which arose from the efforts of the Greek cities of Asia Minor to establish the independence which they enjoyed, before they became tribute allies of Croesus, and finally subjects of Cyrus the Great, after the defeat of the Lydian Monarch on the plain before Sardis. The Ionian Wars include the burning of Sardis, the battle of Lade, and the siege of Miletus. In order to understand the political and social condition of the Hellenes during this period and the period of the Persian Wars, which followed, it will be important to examine the laws instituted by Solon and later modified by Clisthenes. Also the laws established for the government of the Lacedamonians, as embraced in the rhetra of Lycurgus, which are discussed in Chapter VI supra. Plutarch, in his life of Aristides, referring to the battle of Marathon, says that the flower of the Persian army made a prolonged assault on the enemies' centre, held by the tribes of Leontis and Antiochis. He relates also how Callimachus, third Archon or Archon Polemarch of Athens, decided the question as to whether the Greeks would fight. The strategi, or ten generals, were equally divided, five voting in favor and five against the proposal to engage. The Polemarch who commanded the right wing had the casting vote, by which it was decided to give battle. These passages are not entirely intelligible, unless the legal status of the tribes, the strategi and the archonship, are understood. Athens, B. C. 490, was governed by the Constitution of Clisthenes, under which the tribes referred to by Plutarch were established. The office of strategus was also created by that instrument. The archonship, aside from the judicial functions attached to the office, remained much the same as it had been under the Constitution of Solon, except as to the third archon who, prior to the time of Clisthenes, was clothed with supreme command of the military forces of the State. It will be profitable, therefore, to examine briefly, both the Constitution of Solon and the Constitution of Clisthenes. In order to understand the latter, it will be necessary also to become familiar with the former. The Senate, or Council of Areopagus, which convened on the Hill of Ares ("Apelos IIayos), designated by the Romans, Mars' Hill, immediately west and within bow-shot of the Acropolis, was the most ancient tribunal known to the Hellenes. That body, in primitive times, exercised all the functions of the State, apparently, and administered all law, civil and criminal. We have no knowledge that any written records of its decisions have been preserved. The jurisprudence of this ancient people seems never to have assumed the form of a written code, until the laws, or rather a digest of the decisions of the Areopagus, were codified by Draco (B. C. 624) and became standard authority. The unusual cruelty and severity of this code is proverbial. It is universally declared that Draco's laws were written in blood for the reason that under his code, about every crime constituted a capital offense, punishable with death. In explanation of these drastic provisions, it is said that Draco held that small offenses deserved death and he could find no more severe penalty for the greater crimes. In this connection Plutarch, in his life of Solon, observes, "the man who was convicted of idleness, or who stole a cabbage, or an apple, was liable to death, no less than the robber of temples, or the murderer." The Athenian penal code, if this theory is correct, must have been a dreary affair, consisting principally of a catalogue of the various crimes known to the law. Perhaps the statute, by way of variety, and to break the doleful monotony, must have varied the mode in which the death penalty was inflicted. But why malign Draco? Under the enlightened Commonwealth of England, until the reign of George IV, grand larceny was a capital offence, just as murder was a capital offence. This seems all the more horrible, when we recall that grand larceny embraced every theft where the value of the article purloined was of the value of more than twelvepence. The life of the prisoner at the bar, therefore, who was indicted for grand larceny, frequently turned on the question of value. For example, where the charge against the prisoner was the theft of a spoon, the question on which the life of the accused depended was whether the metal in the spoon was silver or pewter. In ancient times, the mode of inflicting the death penalty presented methods in infinite variety, ranging from crucifixion and drinking poison to ordinary beheading, hanging or sword thrust in the vitals. Some idea of the varieties of torture which were practised may be inferred from the choice penalty inflicted by the Roman law for the crime of parricide, which Sir William Blackstone tells us, was punished in a much severer manner than any other kind of homicide. "After being scourged," says Blackstone (iv, 202)," the delinquents were sewed up in a leathern sack with a live dog, a cock, a viper and an ape, and so cast into the sea.' The illustrious commentator adds, "Solon, it is true, in his laws, made none against parricide, apprehending it impossible that any one should be guilty of so unnatural a barbarity." This The legislation of Draco, however, presents one redeeming feature which certainly reflects credit upon its author. It is said that through his influence was established the Ephetæ, a court consisting of fifty-one members having jurisdiction in homicide cases. tribunal embraced four divisions: (1) having jurisdiction of cases of justifiable homicide; (2) cases of accidental homicide; (3) cases where the homicide was committed abroad, while the offender was in exile; (4) cases where a chattel belonging to defendant was the immediate occasion of death, as where one is killed by a fall from a horse, a cart or the like, not being in motion. Under the law of England in such cases the chattel connected with the offense is called a deodand, which is forfeited, to the State. The table of laws established by Draco remained in force until they were abolished by Solon. He retained, however, the court designated, the Ephetæ, above referred to. Solon lived to be old. It is said he was born on the island of Salamis about 638 B. C., and died about B. C. 559. He was a direct lineal descendant of Codrus, the last King of Athens. He was one of the seven wise men of Greece, and to him was attributed the political maxim that “ an injury to one was the concern of all; that harm done to the meanest subject was an insult and injury to the entire community. The beginning of the popularity of this great lawgiver of antiquity arose from his successful efforts to retain for Athens his native island, after it had been taken and retaken by the State of Megara. Plutarch observes that the Athenians grew tired of the long and tedious war, waged for the possession of Salamis, and enacted a law, making it a crime punishable with death for any man, either by writing or speaking, to assert that Athens should seek to recover the island. Solon, like many others, whose numbers were constantly increasing, considered this law a disgrace and an abomination, but none cared to risk his life by advocating a renewal of the war for its recovery. Finally, he conceived the idea that he might successfully evade the Statute, by feigning insanity, and the rumor spread about the city that he was mad. His plan was, while apparently insane, to make a strong plea to the people as the frantic appeal of a lunatic, relying, in case of failure, upon his feigned insanity to excuse him from incurring the penalty of the law. He composed a stirring patriotic poem, which he committed to memory, and when the opportunity presented itself, rushed frantically into the market-place and, mounting the heralds' stand, sang his verses, entitled Salamis, beginning with the lines, "I am a herald come from Salamis the fair, The plan succeeded. The poem was everywhere commended, and under the leadership of Pisistratus, one of Solon's kinsmen, the obnoxious law was repealed, and as a result Athens recovered Salamis (about B. C. 600) and Solon became popular with all classes. Social and political conditions in Attica were reflected by the contour of the landscape, and the topography of the country, diversified by hills, plains and the shores of the sea. The Hill-men were shepherds and herdsmen; those who dwelt in the level country were agriculturalists who owned the land and tilled the soil; while those who dwelt along the shore were fishermen and traders, who forced their living from the sea. These inhabitants were divided into three classes, grouped in accordance with their occupations. The |