1911 Encyclopædia Britannica/Draco (statesman)

8165101911 Encyclopædia Britannica, Volume 8 — Draco (statesman)John Malcolm Mitchell

DRACO (7th century B.C.), Athenian statesman, was Archon Eponymus (but see J. E. Sandys, Constitution of Athens, p. 12, note) in 621 B.C. His name has become proverbial as an inexorable lawgiver. Up to his time the laws of Athens were unwritten, and were administered arbitrarily by the Eupatridae. As at Rome by the twelve Tables, so at Athens it was found necessary to allay the discontent of the people by publishing these unwritten laws in a codified form, and Draco, himself a Eupatrid, carried this out. According to Plutarch (Life of Solon): “For nearly all crimes there was the same penalty of death. 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.” For the institution of the 51 Ephetae and their relation to the Areopagus in criminal jurisdiction see Greek Law, The orator Demades (d. c. 318 B.C.) said that Draco’s laws were written in blood. Whether this implies peculiar severity, or merely reflects the attitude of a more refined age to the barbarous enactments of a primitive people, among whom the penalty of death was almost universal for all crimes, cannot be decided. According to Suidas, however, in his Lexicon, the people were so overjoyed at the change he made, that they accidentally suffocated him in the theatre at Aegina with the rain of caps and cloaks which they flung at him in their enthusiasm.

The appearance in 1891 of Aristotle’s lost treatise on the constitution of Athens gave rise to a most important controversy on the subject of Draco’s work. From the statements contained in chapter iv. of this treatise, and inferences drawn from them, many scholars attributed to Draco the construction of an entirely new constitution for Athens, the main features of which were: (1) extension of franchise to all who could provide themselves with a suit of armour—or, as Gilbert (Constitutional Antiquities, Eng. trans. p. 121) says, to the Zeugite class, from which mainly the hoplites may be supposed to have come; (2) the institution of a property qualification for office (archon 10 minae, strategus 100 minae); (3) a council of 401 members (see Boulē); (4) magistrates and councillors to be chosen by lot; further, the four Solonian classes are said to be already in existence.

For some time, especially in Germany, this constitution was almost universally accepted; now, the majority of scholars reject it. The reasons against it, which are almost overwhelming, may be shortly summarized. (1) It is ignored by every other ancient authority, except an admittedly spurious passage in Plato[1]; whereas Aristotle says of his laws “they are laws, but he added the laws to an existing constitution” (Pol. ii. 9. 9). (2) It is inconsistent with other passages in the Constitution of Athens. According to c. vii., Solon repealed all laws of Draco except those relating to murder; yet some of the most modern features of Solon’s constitution are found in Draco’s constitution. (3) Its ideas are alien to the 7th century. It has been said that the qualification of the strategus was ten times that of the archon. This, reasonable in the 5th, is preposterous in the 7th century, when the archon was unquestionably the supreme executive official. Again, it is unlikely that Solon, a democratic reformer, would have reverted from a democratic wealth’ qualification such as is attributed to Draco, to an aristocratic birth qualification. Thirdly, if Draco had instituted a hoplite census, Solon would not have substituted citizenship by birth. (4) The terminology of Draco’s constitution is that of the 5th, not the 7th, century, whereas the chief difficulty of Solon’s laws is the obsolete 6th-century phraseology. (5) Lastly, a comparison between the ideals of the oligarchs under Theramenes (end of 5th century) and this alleged constitution shows a suspicious similarity (hoplite census, nobody to hold office a second time until all duly qualified persons had been exhausted, fine of one drachma for non-attendance in Boulē). It is reasonable, therefore, to conclude that the constitution of Draco was invented by the school of Theramenes, who wished to surround their revolutionary views with the halo of antiquity; hence the allusion to “the constitution of our father” (ἡ πάτριος πολιτεία).

This hypothesis is further corroborated by a criticism of the text. Not only is chapter iv. considered to be an interpolation in the text as originally written, but later chapters have been edited to accord with it. Thus chapter iv. breaks the connexion of thought between chapters iii. and v. Moreover, an interpolator has inserted phrases to remove what would otherwise have been obvious contradictions: thus (a) in chapter vii., where we are told that Solon divided the citizens into four classes (τιμήματα), the interpolator had added the words “according to the division formerly existing” (καθάπερ διῄρηται καὶ πρότερον), which were necessary in view of the statement that Draco gave the franchise to the Zeugites; (b) in chapter xli., where successive constitutional changes are recorded, the words “the Draconian” (ἡ ἐπὶ Δράκοντος) are inserted, though the subsequent figures are not accommodated to the change. Solon is also here spoken of as the founder of democracy, whereas the Draconian constitution of chap. iv. contains several democratic innovations. Two further points may be added, namely, that whereas Aristotle’s treatise credits Draco with establishing a money fine, Pollux definitely quotes a law of Draco in which fines are assessed at so many oxen; secondly, if chapter iv. did exist in the original text, it is more than curious that though the treatise was widely read in antiquity there is no other reference to Draco’s constitution except the two quoted above. In any case, whatever were Draco’s laws, we learn from Plutarch’s life of Solon that Solon abolished all of them, except those dealing with homicide.

Authorities.—Beside the works of J. E. Sandys and G. Gilbert quoted above, see those quoted in article Constitution of Athens; Grote, Hist. of Greece (ed. 1907), pp. 9-11, with references; and histories of Greece published after 1894.  (J. M. M.) 

  1. A passage (long overlooked) in Cicero, De republica, shows that, by the 1st century B.C. the interpolation had already been made; the quotation is evidently taken from the list in c. xli. of the Constitution, which it reproduces.