Καὶ στρατηγὸς ἐδ ̓ ἀνες

Τῶν προτὸ σίτησιν ἤτης', ἐρόμουΘ Κλεαίνετον
Νῦν δ ̓ ἐὰν μὴ προεδρίαν φέρωσι καὶ τὰ σιτία,
Οὐ μαχεῖ θαί φασὶν.

Not one of the Generals in former Ages defir'd a publick Maintenance ; but now unless the Privilege of having the firft Seats, and a Maintenance is given to them, they fay, they'll not fight. In latter Ages, how lavish the Athenians grew of their publick Honours, may be eafily known from the Stories of Demetrius Poliorcetes, and Demetrius the Phalerean (i), which have been already mention'd in another Place.

I

CHA P. XXVI.

Of the Athenian Laws.

T was Tully's Obfervation, that moft of the Arts and Inventions, which are neceffary to the Management of human Life, owe their first Original to the Athenians, from whom they were derived into the other Parts of Greece, and thence carried into foreign Countries, for the common Benefit of Mankind. But of all the Inventions commonly afcrib'd to them, none has been of greater or more general Use to the World, than that of Laws, which, as Ælian (k), and others report, were first establish'd in Athens. Tho' fome afcribe the firft Invention of Laws to Zaleucus the Locrian, or to Minos, King of Crete (1). Most other ingenious Contrivances refpect the Conveniences of human Life, but upon this depends the very Foundation of all Civil Government, and of all mutual Society amongst Men; for by them the Magiftrate is directed how to govern, and the People how far to obey; the Magiftrate by them is fettled in the Poffeffion of his Authority over the People, and the People too by them are fecur'd from the arbitrary Power, and unreasonable Demands of the Magiftrate, as well as from the Fraud, Violence, and Oppreffion of each other.

The Poets tell us, that Ceres was the firft that taught the Athenians the Ufe of Laws; in Memory of which Benefit they celebrated the Feftival call'd eopogógia, in which she was worshipp'd by the Name of Oeo popis, which exactly answers to the Latin Name of Legifera in Virgil (m):

mactant lectas de more bidentes

Legiferæ Cereri

To Ceres, who first shew'd the Ufe of Laws,

They offer Lambs cull'd out of bleating Flocks.

The Occafion of this Opinion feems to have been, their afcribing to this Goddess the Invention of Tillage. After which, the Lands being not as yet divided into equal Portions, Controverfies us'd to beʼrais'd :

(i) Conf. Plutarchus, Demetrio. (k) Lib. III. cap. 38. (1) Clemens Alexandrimus, Strom. I. p. 309. (m) Æneid, IV. v. 57.

For

For the compofing whereof, Ceres gave Directions, which afterwards were imitated in all other Affairs. Some of the Laws of her Favourite Triptolemus are still extant, and I have fpoken of them in another Place. But to pafs by poetical Fictions, thus much is certain, viz. that the Athenians were govern'd by Laws before the Diffolution of their Monarchy, as may be obferv'd from what Plutarch relates of Thefeus, viz. That when he divefted himself of fovereign Power, and establish'd a Commonwealth in Athens, one of the Prerogatives, that he thought fit ftill to retain, was the Cuftody or Protection of the Laws.

The first that gave Laws to the Athenians, after Thefeus's Time, was Draco, who was Archon in the first Year of the thirty-ninth Olympiad. His Laws, Elian (n) tells us, are properly call'd souoì, but are remarkable for nothing but their unreasonable Severity; for by them every little Offence was punifh'd with Death, and he, that ftole an Apple, was proceeded against with no lefs Rigour, than he that had betray'd his Country. But thefe Extremities could not last long, the Peo `ple foon grew weary of them, and therefore, tho' they were not abrogated, yet by a tacit Confent they were laid afleep, till

Solon, the next Law-giver, repeal'd them all, except thofe which concern'd Murder, call'd dovinoì voμos; and, having receiv'd from the People Power to make what Alterations he thought neceffary, new-model'd the Commonwealth, and inftituted a great many ufeful and excellent Laws, which, to diftinguish them from Draco's Oeopoì, were call'd Nouo. And left, thro' the Connivance of the Magiftrates, they fhould in Time be neglected, like thofe of his Predeceffor, he caus'd the Senate to take a folemn Oath to observe them, and every one of the Thefmotheta vow'd, that, if he violated any of the Statutes, he would dedicate a golden Statue as big as himself to the Delphian Apollo; and the People he oblig'd to obferve them for a hundred Years (0).

But all this Care was not fufficient to preserve his Laws from the Innovations of lawless and ambitious Men: For fhortly after Pififtratus fo far infinuated himself into the People's Favour, that the Democracy inftituted by Solon was diffolv'd, and himself invefted with fovereign Power, which, at his Death, he left in the Poffeffion of his Sons, who maintain'd it for fome Years; and tho' Pififtratus himself, as Plutarch reports (p), and his Son after him, in a great Measure, govern'd according to Solon's Directions, yet they follow'd them not as Laws, to which they were oblig'd to conform their Actions, but rather feem to have us'd them as wife and prudent Counfels, and varied from them, whenever they found them to interfere with their Intereft or Inclinations.

Pififtratus's Family being driven out of Attica, Clifthenes took upon him to restore Solon's Conftitutions, and enacted many new Laws (9), which continu'd in Force till the Peloponnefian War, in which the Form of Government was chang'd, firft by the four hundred, and then by the thirty Tyrants. These Storms being over, the ancient Laws were again reftor'd in the Archonship of Euclides, and others establish'd at the Inftance

(2) Var. Hift. lib. VIII. cap. 10. (0) Plutarch, Solone, Diogen. Laertius, Ælian. loc. cit. (p) Solone. (q) Herodotus, Plutarch, Pericle, Ifocrat. Areopag.

of

but

very

be

of Diocles, Ariftophon, and other leading Men of the City. Laft of allDemetrius the Phalerean, being intrufted with the Government of Athens, by the Macedonians, was the Author of many new, neficial and laudable Conftitutions (r). These feem to have been the chief Legiflators of Athens, before they submitted to the Roman Yoke ; two others are mention'd by Suidas, viz. Thales and Efchylus.

Befide thefe, the Athenians had a great many other Laws enacted upon particular Exigencies by the Suffrages of the People: For I fhall not in this Place fpeak of the ngiouala & Beans, the Decrees enacted by the Authority of the Senators, whofe Power being only annual, their Decrees loft all their Force and Obligation, when their Offices expir'd. The Manner of making a Law was thus: When any Man had contriv'd any thing, which he thought might conduce to the Good of the Commonwealth, he firft communicated it to the Prytanes, who receiv'd all Sorts of Informations of Things that concern'd the Publick; the Prytanes then call'd a Meeting of the Senate, in which the new Project, being propos'd, after mature Deliberation was rejected, if it appear'd hurtful or unferviceable; if not, it was agreed to, and then call'd ПBuμa. This the Prytanes wrote upon a Tablet, and thence it was call'd Ięópaμμa.

No Law was to be propos'd to the Affembly, except it had been written upon a white Tablet, and fix'd up, fome Days before the Affembly, at the Statues of the Heroes call'd Eravuoi,that fo all the Citizens might read what was to be propos'd at their next Meeting, and be able to give a more deliberate Judgment upon it. When the Multitude was come together, the Decree was read, and every Man had Liberty to fpeak his Mind about the whole, or any Clause of it; and if, after due Confultation, the Assembly thought it inconvenient, it was rejected; if they approv'd of it, it pafs'd into a pioμa, or NóμO, which, as we learn from Demofthenes,were the fame as to their Obligation, but differ'd in this,thatNou was a general and everlastingRule, whereas¥ngiopa refpected particular Times, Places, and other Circumftances().

No Man, without a great deal of Caution, and a thorough Underftanding of the former Laws and Conftitutions, durft prefume to propofe a new one, the Danger being very great, if it suited not with the Cuftoms and Inclinations of the People; Eudemus, a Cydiathenian, is faid to have loft his Life on that Account, being made a Sacrifice to the Rage of the Multitude. Not much unlike this Severity was the Ordinance of Zaleucus, the Locrian Law-giver, by which it was appointed, that whosoever propos'd the enacting of a new Law, or the Abrogation of an old one, fhould come into the Affembly, with an Halter about his Neck, and in that Habit give his Reasons for what he propos'd,and if these were thought good and fufficient, his Proposal was embrac'd; if not, he straightway pour'd out his Soul under the Hangman's Hands. But the Athenians were not quite fo rigid, except upon fome extraordinary Occafions, when the giddy Multitude was hurried on

(r) Plutarch. Ariftide. (f) Demoftben, ejufque enarrator Ulpian in Leptin, & alibi.

with unusual Rage and Vehemence, as happen'd in Eudemus's Cafe; yet if any Man establish'd a Law that was prejudical to the Commonwealth, he might be call'd in Queftion for it any Time within the Space of one Year; but if he was let alone any longer, the Laws took no Notice of him. In thefe Cafes efpecially, a Writ for tranfgreffing the Laws, call'd Пagavouías papn, might take hold of him; First, If he had not taken care to publish his Propofal in due Time. Secondly, If he propos'd it in ambiguous and fallacious Terms. Thirdly, If he propos'd any thing contrary to any of the former, and receiv'd Laws; and therefore, if any of the old Laws were found to oppose what they defign'd to offer, they always took Care to have them repeal'd before-hand (t). They who had preferr'd any Law, which was παράνομα, οι ανεπλή Ja, contrary to the former Laws, or the Intereft of the Commonwealth, were first arraign'd before the Thefmotheta, according to Julius Pollux: Or, as others think, they were fometimes arraign'd before the Thefmotheta, fometimes before other Archons, according to the different Nature of their Crimes, every Archon having the Cognizance of different Affairs. The Accufation being heard, the Archon did eloáyew els Tinashev, introduce the Caufe into that Court of Justice, where fuch Affairs were examin'd. If the Defendant was declar'd guilty, he was usually punish'd with a Fine, according to his Offence, which he was oblig'd to pay under the Penalty of (ariuía) Infamy: This last Punishment was immediately inflicted upon thofe, who had been thrice convicted of this Offence, who were, on that Account, ever after excluded from all publick Affemblies. Whence that Saying of Antiphanes,

Πῶς γδ γένοιτ' ἂν

Ρήτωρ ἄφωνΘ, ἂν μὴ ἁλῷ τεὶς παρανόμων. Howcan an Orator be filenc'd,unless he has been thrice convicted(@agvouwy) of enacting Laws contrary to thofe already in Force? If the Judges acquitted the Defendant, then the Plaintiff was amerced a thousand Drachme, as a Punishment of his falfe Accufation (u). And tho' he, who had been the Occafion of enacting any unjuft Law, could not be punish'd after a whole Year was expir'd, yet it was lawful to cite him before à Magiftrate, and there oblige him to fhew the Design and Reafon of his Law, in order to prevent any Damage which might enfue from it. But because, notwithstanding all this Caution, it fometimes happen'd that new Laws were enacted contrary to the old, it was order'd, that the Thefmotheta fhould once every Year carefully peruse the Laws; and if they found any of them oppose another, it was to be propos'd to the People, who were to proceed about it in the Method that was us'd in abrogating other Laws, and fo one of the Laws made void. In other Cafes, it was unlawful for any Man to endeavour to have any Law repeal'd, without preferring a new one in its Place.

And because theChange of Time,and other Circumftances, make great Alterations in Affairs ; and Ordinances, which were formerly useful and neceffary, by the different State of Things, become unprofitable,

(t) Idem. (u) Demofthene Timocratea, ibique Ulpianus,

and

and perhaps inconvenient and prejudicial; it was ordain'd by Solon, that once every Year the Laws should be carefully revis'd and examin'd, and if any of 'em were found unfuitable to the prefent State of Affairs, it fhouldbe repeal'd; this wascall'dexególovía tav voμav, from theManner of giving their Suffrages by holding up their Hands. The Method of doing it was thus; on the eleventh Day of the Month Hecatombaon, at which time the Prytanes held their firft ftated Affembly, after the Kigu had, according to Cuftom, made a folemn Prayer before the Affembly, the Laws were read over in this Order; first, those that concern'd the Senate; then those that refpected the People, the nine Archons, and then the otherMagiftrates in their Order. This being done, it was demanded, whether the Laws then in being were fufficient for the Commonwealth? And if it feem'd neceffary to make any Alteration in 'em, the Confideration was deferr'd till the fourth of Metagitnion, upon which Day was the laft ftated Affembly, under the firft Rank of the Prytanes, as the Repetition of the Laws had been at the first. In all this, the cool, or Laws concerning fuch Matters, were nicely and punctually obferv'd, and the Prytanes and Proedri feverely punish'd, if any thing was omitted. For this was the Difference between θεσμὸς and νόμΘ, that θεσμὸς ἐςὶ νόμΘ πῶς ἔδει νομοθετῶν· θεσμός, is a Lave diretting how Lavrs (νόμοι) are to be made (w). Upon the firft of Metagitnion, another Affembly was call'd, and the Proedri reported the Matter to the People, who did not proceed to the Determination of it themselves, but fubitituted the Nomothete to do it; and appointed five Orators, call'd Zuvina, to defend the ancient Laws in the Name of the People. If the Prytanes neglected to convene the foremention'd Affembly, they were to be fin'd a thoufand Drachma: But if the Affembly met, and the Proedri then neglected to propound the Law to the People, they were fin'd only forty Drachmae; "οτι βαρύτερον ἐσιν ὅλως τὸ μὴ συνάξαι τὸν δῆμον εἰς ἐκ κλησίαν, τὸ μὴ ὑποβάλλειν. It being a greater Crime to neglect the Calling of the People together, than the propounding of any particular Bufinefs to them. Any Man was permitted to arraign the Prytanes and Proedri thus offending before the Thefmotheta, whom the Laws obliged to impeach the Criminals in the Court of Helica, upon Neglect whereof they were deny'd Admiffion into the Senate of Areopagus. To return,. the Nomothete, having heard what the Orators could fay in Defence of the old Law, gave their Opinions accordingly, and their Sentence was ratified by the People in the following Affembly (x).

Solon, and, after his Example, the rest of thofe that enacted Laws in Athens, committed their Laws to Writing, differing herein from Lycurgus, and the Law-givers of other Cities, who thought it better to imprint them in the Minds of their Citizens, than to ingrave them upon Tablets, where it was probable they might lie neglected and unregarded, as Plutarch hath informed us in his Life of Numa Pompilius: "It is reported, faith he, that Numa's Body, by his particular Com mand, was not burn'd, but that he order'd two Stone Coffins to "be made, in one of which he appointed his Body to be laid, and "the other to be a Repofitory for his facred Books and Writings, and

(w) Libanius in Argument. Leptineæ,

(x) Idem.

"both