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The differences in age and legal experience between the panels judging homicide and popular court cases helped foster the impression that the homicide courts
37 Lyc. 1.11–13.
38 Lyc. 1.149.
employed a more formal legal approach in reaching their verdicts than did the popular courts. The composition of the Areopagus Council differed from the mass juries of the popular courts in important respects: membership was limited to ex-archons,39 and Areopagites served for life.40 Demographic models suggest that the Council probably comprised between 145 and 175 men.41 By comparison, popular court panels were never smaller than 201, and many panels were consider- ably larger. The median age of the Areopagus has been calculated as lying between
52 and 57 years,42 a good deal older than the average popular court juror. The estimated age distribution of the Areopagus is thus roughly consistent with the parallel Isocrates draws between this body and the Spartan council of elders, the Gerousia. 43
A priori, the composition of the Areopagus is likely to have affected – or, more importantly, have been perceived to have affected – the decision making process of the homicide courts. Somewhat smaller and more cohesive by virtue of a stable membership than a popular court jury, the Areopagus probably achieved a degree of uniformity in the way it went about its business. In Athenian culture older men were generally regarded as less impetuous and therefore less likely to be swayed by emotional appeals.44 This stereotype may in turn have influenced the strategy of speakers before this tribunal. It also seems probable that the Areopagites developed a close familiarity with Athenian laws and procedures. Life tenure offered the possibility of repeated service as homicide judges, though it is possible that, at least in the fourth century, homicide trials were rare. But at a minimum, all members of the Areopagus had spent one year as an archon, conducting preliminary legal hearings and presiding at trials before the popular courts. As a result, they probably were – and were regarded as – more sophisticated, and thus less likely to be misled on matters of law than the members of the mass jury panels of the popular courts. Of course, the Areopagites’ legal knowledge was
39 Dem. 24.22; Arist. Ath. Pol. 60.3.
40 Lys. 26.11;Arist. Ath. Pol. 3.6.
41 Hansen & Pedersen 1990.
42 Hansen & Pedersen 1990:76.
43 Isoc. 12.154. This 30-member Spartan senate consisted of two Spartan kings who served ex officio
plus 28 men over age 60 who served for life and tried cases in which the penalty was death, exile, or
disfranchisement (Plut. Lyc. 26.2; Arist. Pol. 1294b 33–34).Unlike the Areopagites, the Spartan gerontes
were elected in the Assembly (Arist. Pol. 1271a 9–18).
44 The locus classicus for the characteristics of the young and old and how they can be best accommodated
by speakers is Aristotle’s Rhetoric (1388b31–1390a27). For discussion of popular stereotypes regarding age, with references, see Dover 1974:102–105.
practical rather than theoretical; there is no evidence that the Areopagus developed a collective sense of jurisprudence over time. It would be going too far to call them “legal experts.” To borrow the words Plato uses in the Gorgias to describe the practice of rhetoric, the Areopagites might not have possessed epistˆemˆe (“exact knowledge”), but there is no denying their tribˆe (“experience,” literally “rubbing,” the tactile sense that comes from repeated handling of material).
The impression that the Areopagus dispensed a different brand of justice was fueled by the Council’s reputation for enforcing strict rules of behavior and deco- rum. According to tradition, the Areopagites were expected to be particularly upright and respectable citizens: several sources report that the smallest of infrac- tions could lead to expulsion.45 For instance, Plutarch states that members were not permitted to write comedies,46 and a fragment of Hyperides preserved in Athenaeus claims that the Areopagus did not accept men who ate in a pub.47
Aeschines also relates a story in which the demos is censured for laughing in the presence of the Areopagites.48 In the Areopagiticus, Isocrates offers an idealized view of the moral transformation that accompanies admission to the Areopagus: “We would see that those who are intolerable with respect to all other matters, whenever they go up to the Areopagus, they shrink from acting according to their nature, abiding rather by the customs there than by their own wickedness.”49 The Areopagus was not a particularly selective institution in the classical period – by the mid-fifth century archons were chosen by lot from all but the lowest class of citizens and by the mid-fourth century all citizens were eligible.50 Nevertheless, it is clear that the aura surrounding its members and presumably their judicial decisions was very different from the Athenians’ attitude toward the popular courts.
The legal experience and high moral character associated with the Areopagus may also have applied to the homicide courts at the Palladion, which tried cases of unintentional homicide and the killing of non-citizens, and the Delphinion, which had jurisdiction over lawful homicide cases. In the fifth century, cases in these special courts operated under the same procedures as the Areopagus but
45 Din. 1.55–56.
46 Plut. Mor. 348b.
47 Ath. Deipno. 566–568.
48 Aesch. 1.81–5.
49 Isoc.7.38.
50 Hansen 1999:288–289.
were tried before fifty-one men known as ephetai. 51 We cannot know for certain how the ephetai were chosen, but the most likely possibility, based on our limited evidence, is that they were selected from the Areopagites. A fragment of Androtion appears to identify the ephetai as Areopagite judges, but the meaning of the passage is too obscure to draw any firm conclusions.52 In the course of a discussion of the homicide courts, The Constitution of the Athenians states, “Men chosen by lot try these cases, except those that are held on the Areopagus.”53Carawan has argued that in the context of a passage discussing the special homicide courts “the men chosen by lot” most likely refers to men chosen by lot from the Areopagus, pointing out that all other references in The Constitution of the Athenians to dicastic jurors selected by lot specifically mention dikastai or dikastˆeria. 54Although these passages are far from conclusive, it is probable that the 51 ephetai judging cases in the homicide tribunals were members of the Areopagus. Whereas our sources make clear that
51 IG i2 115; Dem. 43.57; 23.37–8; Poll. 8.125.
52 FGRHist 324 F4:
& % '!" (%) * + (
,, -.* (, / & (% - 0 1
" (,, $,),, ' &.
) 2 3 ", 4 5 &, 6.*, 2 / 2 $ / 7.
. ", 6 8 9: "!; * & 5 (%.
The judges of the Areopagus had to be assembled from the nine elected archons at Athens, as Androtion says in Book Two of the Atthides. Later the Council of the Areopagus was comprised of more members, i.e., from the fifty-one men of the more illustrious, but only from Eupatrids [roughly, the Athenian blueblood families], as we said, and those who excel in wealth and a restrained lifestyle, as Philochorus records in the third book of his Atthides. This passage thus associates the “fifty-one” (a number linked to the ephetai in a number of ancient passages, e.g., Dem. 43.57) with the Areopagus, and seems to state that the Areopagus was formed from the ephetai, though the word " is puzzling if that is the case. It has further been suggested that this passage indicates a distinction between (9, “Areopagite judges,” which has been interpreted to mean the fifty-one ephetai, and (,
, $,), the Council of the Areopagus, though this conclusion is hardly required by the text. For discussion of this difficult passage, see Bonner & Smith 1930:99–100; MacDowell
1963:51–52; Carawan 1998:14–15; cf. Wallace, 1989:14–16.
53 Arist. Ath. Pol. 57.4:,!" [ ’ > ], 4 & (/ /?
. The crucial words of the papyrus are unclear. The passage could also read 8 χ "
[ ’ ] suggested as a possibility by Stroud (1968b), and favored by Rhodes (1993:646–8). The reading 8 χ " [ ’. ] has now been widely rejected. For discussion of the various possible readings, see Rhodes 1993:646–648.
54 Carawan 1991: 15. If this hypothesis is correct, the use of the lot to select the ephetai, a democratic feature one would not expect to see in the time of Draco, was probably introduced in conjunction with democratic reforms and was not the original mode of selection.
the ephetai judged cases in the Palladion and Delphinion in the early fifth century, some scholars contend that ordinary jurors replaced the ephetai in these special homicide courts at some point under the democracy.55The evidence for this view is quite weak, however, and it is far more likely that the ephetai continued to judge cases brought in the Palladion and Delphinion throughout the classical period.56
If the hypothesis that members of the Areopagus judged cases in the Palladion and Delphinion in panels of 51 known as ephetai throughout the fifth and fourth centuries is correct, the composition of these homicide courts would have set them apart from the popular courts. Like the Areopagus, these panels of older men with life tenure had more legal experience and may have been thought to be more familiar with the laws and less likely to be swayed by emotional appeals or rhetorical flourishes than ordinary juries. But what is most important for our purposes is that the procedures used in these homicide courts more closely resembled those of the Areopagus than those of the popular courts and that the Athenians considered the Areopagus and the ephetic courts special, related tribunals distinct from the popular courts. For example, the speaker in Antiphon On the Chorus Boy discusses the unique procedures of the homicide courts as a group57
55 A variety of periods for the proposed changeover have been suggested, including the time of Solon (Sealey 1983:294–295), Pericles’ reform of the Areopagus (Smith 1924), and the reforms of 403/2 (Philippi 1874: 320).
56 The primary support for the view that the homicide courts were manned by ordinary jurors by the fourth century comes from two passages in which a law court speaker who appears to be describing a previous trial at the Palladion mentions a jury panel of 700 or 500 rather than the ephetai. MacDowell (1963:53–54) and Carawan (1991:3–5) have argued convincingly that the speaker in the first passage (Isoc.
18.52–54) refers toa 700-member dicastic court trying Callimachus for perjury committed during the homicide trial, rather than the homicide trial itself. In the second passage (Dem. 59.10), the speaker describes a false homicide charge brought by Stephanus in the Palladion. The speaker suggests that it became clear during the trial that Stephanus had been bribed to bring the false charges, and that he therefore managed to get only a few votes. The crucial phrase is @ A)., $B
χ &, “he got a few votes out of [i.e., for the expenditure of] five hundred drachmas.” Although this text follows most of the manuscripts, many editors have deleted χ &, leaving the phrase “a few votes out of a total of five hundred,” which suggests that a jury of five hundred decided the case. But there is no need to delete the reference to drachmai from the manuscripts to make sense of the passage. The five hundred drachmai must represent the amount Stephanus was paid to bring the false prosecution, not the number of jurors (Rhodes 1993: 647; Kapparis 1999: 189). For arguments supporting the view that the ephetai continued to judge in the homicide courts throughout the classical period, see MacDowell 1963:52–57; Carawan 1998:155–160; Harrison, 1998:40–42; Kapparis
1999:188–189.
57 Ant. 6.6.
and in Demosthenes Against Aristocrates the speaker praises the Areopagus and other homicide courts together as ancient and well-respected tribunals.58 As we will see, the Palladion and Delphinion were, like the Areopagus, more conducive to legal reasoning and less receptive to evidence irrelevant to the charge before it.
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