Nomothetes
NOMO´THETES(νομοθέτης), legislator, is a word which may be applied to any person who causes laws to be enacted (ὁ νόμον καινὸν εἰσφέρων, Schol. on Dem. Olynth. 3. p. 31.10). Thus, Pericles and Themistocles are called νομοθέται, movers or proposers of laws (Lys. c. Nichom. § 28; c. Phil. § 27, etc.). It is, however, more commonly given to those eminent men whose laws have been celebrated for their intrinsic merit, or for the important influence which they exercised over the destinies of their country. Such were Minos of Crete (Plat. Min. p. 318 C); Zaleucus at Locri; Charondas at Catana, whose laws were adopted by the Chalcidian cities in Sicily and Italy (Arist. Pol. 2.9 [12 B.], 8, praises his laws as superior to all others of his time in accuracy of definition and fineness of discrimination; they were sung παρ' οἶνον Κατάνησι, Philologus, 5. p. 421, i. e. at Catana, not Ἀθήνησι, the usual text in Athen. p. 619 b); Draco at Athens (Dem. c. Tim. p. 765.211); Pittacus of Lesbos; Androdamas of Rhegium (Arist. Pol. 2.9 [12 B.], 9), etc. But the name of νομοθέτης is given κατ' ἐξοχὴν to Lycurgus and Solon; for they were also founders of constitutions (πολιτεῖαι, Arist. Pol. 2.9 [12 B.], 1). So high was the esteem in which Solon was held by the Athenians as the founder of their social polity, that although many important reforms were effected at various periods, he still continued to be regarded as the lawgiver, and the whole body of laws passed under his name (Meier, de Bon. Damn. p. 2).
As pointed out in NOMOSSolon did not endeavour to secure fixity and finality for his laws. Zaleucus (Dem. c. Tim. p. 744.139; Plb. 12.16) discouraged changes in his laws by the regulation that he who proposed a new law had to bring the matter before the council with a cord about his neck, and was to be put to death if his proposal was negatived (Diod. 12.17ascribes this regulation to Charondas). When Lycurgus went on his last journey from which he never returned (so the story runs), he bound his countrymen by an oath to observe all his laws till his return (Plut. Lyc. 29). Solon exacted a similar oath of the Athenians for ten years only (Hdt. 1.29; for a century, Plut. Sol. 25), and devised certain formalities for repealing an existing law and enacting a new one (Dem. c. Lept. p. 484.89 f., p. 485.93; Aeschin. c. Ctes. § 38 ascribes them τῷ νομοθέτῃ τῷ τὴν δημοκρατίαν καταστήσαντι). Grote (Hist. of Gr. 3. p. 123 f.) doubts whether Solon made any such provisions (as we find in operation in the time of Demosthenes), and refers to post-Solonian matters in the supposed Solonian law, e. g. to the regulation (Dem. c. Tim. p. 707.23) that the proposer had to put up his project of law before the Eponymi. Of course this regulation cannot have proceeded from Solon, but the existence of such post-Solonian matters may be admitted without giving up the main point, viz. that it was Solon who laid down the principle of periodical revision of the laws (Schömann, Verfassungsgesch. Ath. p. 57).
In Busolt's opinion (Griech. Staats. u. Rechtsaltert. § 195) the mode of enacting laws in the fifth century differed from that in use in the fourth, inasmuch as in the fifth century certain individuals (συγγραφεῖς) were commissioned to draw up the laws which, after having been approved by the senate, were laid before the popular assembly; συγγραφεῖς for 450 B.C. in C. I. A. iv. No. 22 a, for 446 B.C. in the decree about the ἀπαρχαὶ in Bull. de Corresp. Hell. 1880, pp. 225 ff., in March 411 B.C. ξυγγραφεῖς αὐτοκράτορες were appointed to prepare a new constitution (Thuc. 8.67), cf. Xen. Hell. 2.3, 2, 11; Memor. 1.2, 31; but immediately after the overthrow of the Four Hundred νομοθέται were appointed (Thuc. 8.97). Hicks (Greek Hist. Inscr. 149, A, § 8) gives an interesting inscription, according to which three νομογράφοι were commissioned to draw up a new code of laws for Teos after the incorporation of the people of Lebedos with the Teians, the laws of Cos being in the meantime in force.
The method of procedure at the ἐπιχειροτονία νόμων was as follows:--At the first assembly of the first prytany, i. e. on the eleventh of Hecatombaeon, after speeches recommending new laws and defending the old ones had been delivered, the question was put to the vote (χειροτονία) whether the laws should be confirmed as they stood or be revised. The laws were submitted in groups, according to Dem. c. Tim. p. 706.20, lex: first οἱ βουλευτικοί, i. e. those concerning the βουλή; secondly, οἱ κοινοί, then οἳ κεῖνται τοῖς ἐννέα ἄρχουσι, and οἱ τῶν ἄλλων ὰρχῶν --evidently arranged according to the different magistrates who had to administer them, though the term οἱ κοινοὶ νόμοι is not clear in this connexion. If a revision of one or more groups of the laws was voted for, in the third assembly following, the appointment of νομοθέται was taken into consideration (σκέψασθαι καθ' ὅ τι τοὺς νομοθέτας καθιεῖτε, l. c. p. 707.25), viz. their number and the length of their session, and how their pay was to be provided. In the interval those who wished to propose a new law had to put up a copy of it before the statues of the Eponymi (l. c. p. 705.18; p. 708.25; p. 711.36), that every one might have an opportunity of seeing it; and to give it still further publicity, they had to hand a copy to the secretary of the senate to have it read out at the intervening assemblies (Dem. c. Lept. p. 485.94), probably together with the old law which it was intended to replace (παραναγνούς, Dem. c. Tim. p. 712.38). The popular assembly was thus enabled to form an opinion as to the extent and nature of the revision, and accordingly to fix the number of the νομοθέται to be selected by lot from among the heliasts, and to determine their term of office; for the nomothetae were not a standing committee of the heliasts with their own ἐπιστάτης and προέδροι (Fränkel, d. Att. Geschworengerichte, p. 23 f.), but were chosen ad hoc, and their number was probably not uniform (a thousand, as Pollux, 8.101, says), but seems to have varied according to the importance of the laws under consideration. The number of nomothetae given in Dem. c. Tim. p. 708.27, is 1001; in Andoc. de Myst. § 84, it is 500 (Blass reads here ἡ βουλὴ οἱ πεντακόσιοι καὶ οἱ νομοθέται instead of ἡ βουλὴ καὶ οἱ νομοθέται οἱ πεντακόσιοι). At the same time as the nomothetae (not at the first assembly, Dem. c. Tim. p. 707.23) five συνήγοροι (l. c. p. 711.36; Dem. c. Lept. ed. Wolf, Proleg. p. 145) were chosen to argue in defence of the laws which it was proposed to repeal (not five συνήγοροι for each law, as the Schol. on Dem. c. Tim. p. 707.23, says). Before the nomothetae were called upon to give their final decision, the proposed laws were examined by the senate (συννομοθετεῖν δὲ καὶ τὴν βουλήν (l. c. p. 708.27, psephisma); cf. [Xen.] de Rep. Athen. 3.2, τὴν δὲ βουλὴν βουλεύεσθαι (δεῖ) . . . πολλὰ . . . περὶ νόμων θέσεως, and Pollux, 8.101, τοὺς γὰρ νέους (sc. νόμους) ἐδοκίμαζεν ἡ βουλή, etc.); and if we may take the revision of laws in B.C. 403 as an. example, the senate performed this duty by themselves, not in conjunction with the nomothetae. The meetings of the nomothetae resembled the assemblies of the people: the prytanes convened them; προέδροι presided over them, probably appointed in the same way, viz. by lot one from each of the non-presiding tribes, and their ἐπιστάτης chosen by lot from among themselves. The statement that the προέδροι put the question to the nomothetae (Dem. c. Tim. p. 710.33; p. 723.71) is not a blunder on the part of the compiler; they are mentioned in C. I. A. ii. No. 115b, ἐν δὲ τοῖς νομοθέταις τοὺς προέδρους οἳ ἂν προεδρεύωσιν καὶ τὸν ἐπιστάτην προσνομοθετῆσαι, etc. The law in favour of which the nomothetae voted, whether the established law or the proposed one, was κύριος.
Besides this, the thesmothetae (καλοῦνται δὲ οὕτως, ὅτι τῶν νόμων τὴν ἐπιμέλειαν εἶχον, Harpocr. s. v.) of each year were directed to examine the whole code of laws (διόρθωσις τῶν νόμων), and to see if there were any laws contradictory or useless (Aeschin c. Ctes. § 38; Dem. c. Lept. p. 484.90; Harpocr. and Photius, s. v.). If they found such, they had to put up copies of them before the statues of the Eponymi, the prytanes had to, convene an assembly of the people for the appointment of nomothetae (ἐπιγράψαντες νομοθέτας), and the ἐπιστάτης τῶν προέδρων had to submit the laws to the decision of the nomothetae. The usual text of the last clause is τὸν δ'ἐπιστάτην τῶν προέδρων διαχειροτονίαν διδόναι τῷ δήμῳ: τῷ δήμῳ is, however, wrongly repeated from the previous paragraph. It is clear from what follows, τῶν δὲ πρυτάνεων ἀποδόντων τοῖς νομοθέταις ἀνῄρητ' ἂν ὁ ἕτερος τῶν νόμων, that the nomothetae, not the assembly of the people, would have repealed the law. (Höffler, de nomothes. Att. p. 10, connecting this passage with Photius' explanation of νομοθέται, strangely supposes that the whole people when engaged in the revision of the laws might be called νομοθέται.) The proceedings in the ἐπιχειροτονία τῶν νόμων and in the διόρθωσις are therefore only different in this respect, that in the former any citizen so disposed, in the latter the thesmothetae in their official capacity, proposed the repeal of a law.
If, after the repeal of an old law by the nomothetae, it was found that the law proposed in its stead was not expedient (οὐκ ἐπιτήδειος) for the Athenian people, or was contrary to any of the established laws (lex in Dem. c. Tim. p. 710.33), the proposer was within the limit of a year liable to prosecution (Dem. c. Lept. p. 501.144; argumentum, p. 543). (Schöll, Ueber attische Gesetzgebung, Sitzungsber. Akad. München, 1886.) [PARANOMON GRAPHE]
These regulations for the revision of laws were not always observed; e. g. Demosthenes (Olynth. 3. p. 31.10 f.) recommended the appointment of nomothetae for the special purpose of repealing the laws concerning the theoric fund; one of the charges against Timocrates was that he induced the people to appoint nomothetae out of the usual time, viz. on the day following the first assembly of the year (p. 706.18; p. 708.26; cf. c. Lept. p. 488.91). The practice had grown up of passing legislative measures in the shape of decrees, dispensing with the regular course of law. The mere resolution of the people in assembly was a ψήφισμα; such decrees were originally measures of government, relating to individuals, or to particular occasions, e. g. for the despatch of an embassy. They had indeed the force of laws so far as regarded the obedience due to them, and sometimes νόμος and ψήφισμα seem to be used indiscriminately, e. g. Ps. Plut. Vitt. X. Oratt. p. 481 E f., and Aelian, Ael. VH 13.24(Schömann, de Comit. p. 249), but one psephisma might be set aside at any time by another. It was ordained by a decree of the people that no free Athenian could be put to torture, but Peisander urged the Athenians to set it aside (λύειν τὸ ἐπὶ Σκαμανδρίου ψήφισμα, Andoc. de Myst. § 43: cf. [Dem.] c. Aristog. 1. p. 784.47 Att. Process, ed. Lipsius, p. 896, n. 372).
Andocides quotes the law: ψήφισμα μηδὲν μήτε βουλῆς μήτε δήμου νόμου κυριώτερον εἶναι (de Myst. § § 87, 89; cf. Dem. c. Aristocr. p. 694.87; c. Tim. p. 709.30); as long as this law was observed, the democracy was one of the kind in which (as Aristotle, Pol. vi. [iv. B.], 4, 3, says) κύριος ἦν ὁ νόμος, ἀλλ' οὐ τὸ πλῆθος: but later on things changed: κύριον ἦν τὸ πλῆθος, ἀλλ' οὐχ ὁ νόμος, --a change brought about ὅταν τὰ ψηφίσματα κύρια ᾖ ἀλλὰ μὴ ὁ νόμος, συμβαίνει δὲ τοῦτο διὰ τοὺς δημαγώγους (cf. Dem. c. Lept. p. 485.92, ψηφισμάτων δ'οὐδ' ὁτιοῦν διαφέρουσιν οἱ νόμοι: Xen. Hellen. i 7, 12, τὸ δὲ πλῆθος ἐβόα δεινὸν εἶναι εἰ μή τις ἐάσει τὸν δῆμον πράττειν ὃ ἂν βούληται: [Dem.] c. Neaer. p. 1375.88, ὁ γὰρ δῆμος ὁ Ἀθηναίων κυριώτατος ὢν τῶν ἐν τῇ πόλει ἁπάντων καὶ ἐξὸν αὐτῷ ποιεῖν ὅ τι ἂν βούληται, etc.; Hermann, Griech. Staatsalt. § 67, n. 8). Like other despotic sovereigns, the Athenian people claimed a dispensing power of overriding the law upon occasion; and their advisers, the professional statesmen and orators, were as such the keepers of the royal conscience, and liable to severe punishment if their master's conscience consequently reproached him with what he had done at their bidding (Dem. c. Androt. et Tim. ed. Wayte, Introd. p. xxxiv.). The same Athenians who declared it intolerable that the people should not be allowed to do as it pleased them, repented soon of their decree and directed a prosecution of those who had advised it. However, proposing decrees paid the ῥήτορες well and was worth some risk: Demosthenes and Demades are said to have made more than 60 talents each ἀπ' αὐτῶν τῶν ἐν τῇ πόλει ψηφισμάτων καὶ προξενιῶν (Hyper. c. Dem. col. 23: cf. Dinarch. c. Dem. § 41 ff.).
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