1911 Encyclopædia Britannica/Greek Law
GREEK LAW. Ancient Greek law is a branch of comparative jurisprudence the importance of which has been long ignored. Jurists have commonly left its study to scholars, who have generally refrained from comparing the institutions Greek law and comparative jurisprudence. of the Greeks with those of other nations. Greek law has, however, been partially compared with Roman law, and has been incidentally illustrated with the aid of the primitive institutions of the Germanic nations. It may now be studied in its earlier stages in the laws of Gortyn; its influence may be traced in legal documents preserved in Egyptian papyri; and it may be recognized as a consistent whole in its ultimate relations to Roman law in the eastern provinces of the Roman empire.
The existence of certain panhellenic principles of law is implied by the custom of settling a difference between two Greek states, or between members of a single state, by resorting to external arbitration. The general unity of Greek law is mainly to be seen in the laws of inheritance and adoption, in laws of commerce and contract, and in the publicity uniformly given to legal agreements.
No systematic collection of Greek laws has come down to us. Our knowledge of some of the earliest notions of the subject is derived from the Homeric poems. For the details of Attic law we have to depend on ex parte statements Original authorities. in the speeches of the Attic orators, and we are sometimes enabled to check those statements by the trustworthy, but often imperfect, aid of inscriptions. Incidental illustrations of the laws of Athens may be found in the Laws of Plato, who deals with the theory of the subject without exercising any influence on actual practice. The Laws of Plato are criticized in the Politics of Aristotle, who, besides discussing laws in their relation to constitutions, reviews the work of certain early Greek lawgivers. The treatise on the Constitution of Athens includes an account of the jurisdiction of the various public officials and of the machinery of the law courts, and thus enables us to dispense with the second-hand testimony of grammarians and scholiasts who derived their information from that treatise (see Constitution of Athens). The works of Theophrastus On the Laws, which included a recapitulation of the laws of various barbaric as well as Grecian states, are now represented by only a few fragments (Nos. 97-106, ed. Wimmer).
Our earliest evidence is to be sought in the Homeric poems. In the primitive society of the heroic age (as noticed by Plato) written laws were necessarily unknown; for, “in Law in Homer. that early period, they had no letters; they lived by habit and by the customs of their ancestors” (Laws, 680 A). We find a survival from a still more primitive time in the savage Cyclops, who is “unfamiliar with dooms of law, or rules of right” (οὔτε δικας εὖ εἰδότα οὔτε θέμιστας, Od. ix. 215 and 112 f.).
Dikē (δίκη), assigned by Curtius (Etym. 134) to the same root as δείκνυμι, primarily means a “way pointed out,” a “course prescribed by usage,” hence “way” or “fashion,” “manner” Dikē. or “precedent.” In the Homeric poems it sometimes signifies a “doom” of law, a legal “right,” a “lawsuit”; while it is rarely synonymous with “justice,” as in Od. xiv. 84, where “the gods honour justice,” τίουσι δίκην.
Various senses of “right” are expressed in the same poems by themis (θἐμις), a term assigned (ib. 254) to the same root as τίθημι. In its primary sense themis is that which “has been laid down”; hence a particular decision or “doom.” The Themis. plural themistes implies a body of such precedents, “rules of right,” which the king receives from Zeus with his sceptre (Il. ix. 99). Themis and dikē have sometimes been compared with the Roman fas and jus respectively, the former being regarded as of divine, the latter of human origin; and this is more satisfactory than the latest view (that of Hirzel), which makes “counsel” the primary meaning of themis.
Thesmos (θεσμός), an ordinance (from the same root as themis), is not found in “Homer,” except in the last line of the Thesmos. Nomos. original form of the Odyssey (xxiii. 296), where it probably refers to the “ordinance” of wedlock. The common term for law, νόμος, is first found in Hesiod, but not in a specially legal sense (e.g. Op. 276).
A trial for homicide is one of the scenes represented on the shield of Achilles (Il. xviii. 497-508). The folk are here to be seen thronging the market-place, where a strife has arisen between two men as to the price of a man that The trial scene. has been slain. The slayer vows that he has paid all (εὔχετο πάντ᾽ ἀποδοῦναι), the kinsman of the slain protests that he has received nothing (ἀναίνετο μηδὲν ἑλέσθαι); both are eager to join issue before an umpire, and both are favoured by their friends among the folk, who are kept back by the heralds. The cause is tried by the elders, who are seated on polished stones in a sacred circle, and in the midst there lie two talents of gold, “to give to him who, among them all, sets forth the cause most rightly” (τῷ δόμεν ὃς μετὰ τοῖσι δίκην ἰθύντατα εἴποι).
The discussions of the above passage have chiefly turned on two points: (1) the legal questions at issue; and (2) the destination of the “two talents.” (1) In the ordinary view (a), it is solely a question whether the fine or blood-money, corresponding to the Wergeld (see Wergeld, Teutonic Peoples, Britain: Anglo-Saxon) of the old Germanic law (Grimm, Rechtsalterthümer, 661 f.), has been paid or not. (This is accepted by Thonissen, Lipsius, Sidgwick and Ridgeway.) In the other view (b), it is held that the slayer “claimed to pay” the fine, and the kinsman of the slain “refused to accept any compensation” (so Passow and Leaf, approved by Pollock). (2) The “two talents” (shown by Ridgeway to be a small sum, equal in
value to two oxen) are awarded either (a) to the litigant who “pleads his cause most justly before them” (so Thonissen, Shilleto and Lipsius, in accordance with the Attic use of phrases like δίκην εἰπεῖν), or (b) to the judge “who, among all the elders, gives the most righteous judgment” (so Maine, approved by Sidgwick, Pollock, Leaf and Ridgeway).
On this controversy, cf. Maine’s Ancient Law, chap. x. pp. 385 f., 405 f., ed. Pollock; Thonissen, Droit pénal (1875), 27; P. M. Laurence (on Shilleto’s view) in Journal of Philology, viii. (1879), 125 f.; Ridgeway, ib. x. (1882), 30 f., and Journal of Hellenic Studies, viii. (1887), 133 f.; and Leaf, ib. viii. 122 f., and in his Commentary on Iliad, ii. (1902), 610-614; also J. H. Lipsius in Leipziger Studien, xii. (1890), 225-231, criticized by H. Sidgwick in Classical Review, viii. (1894), 1-4.
We are told elsewhere in Homer that sometimes a man accepted blood-money from the slayer of his brother or his son, and that the slayer remained in the land after paying this penalty (Il. ix. 633). As a rule the slayer found it safest to flee (Od. xxiii. 118 f.), but even so, he might be pursued by the friends of the slain (Od. xv. 272-278). If he remained, the land was not (as in later ages) deemed to be polluted by his presence. In Homer, Orestes does not slay Clytaemestra, and he needs no “purification” for slaying Aegisthus.
The laws of Sparta are ascribed to the legislation of Lycurgus, whose traditional date is 884 B.C. Written laws are said to have been expressly forbidden by Lycurgus (Plutarch, Lycurgus, 13); hence the “laws of Sparta” are simply Greek lawgivers: Lycurgus at Sparta. a body of traditional observances. We learn that all trials for homicide came before the Council of Elders and lasted for several days, and that all civil causes were tried by the ephors (q.v.). We are also told that originally the land was equally divided among the citizens of Sparta, and that this equality was enforced by law (Polybius vi. 45-46). Early in the 4th century the ephor Epitadeus, owing to a disagreement with his son, enacted that every Spartan should be allowed to transfer his estate and his allotment to any other person (Plutarch, Agis, 5), while Aristotle, in a much-debated passage of the Politics (ii. 9. 14-15), criticizes the Spartan constitution for allowing the accumulation of property in a few hands, an evil aggravated by the large number of “heiresses”; “a man (he adds) may bestow his heiress on any one he pleases; and, if he dies intestate, this privilege descends to his heir.”
Law was first reduced to writing in the 7th century B.C. A written code is a necessary condition of just judgment, and Era of written laws. such a code was the first concession which the people in the Greek cities extorted from the ruling aristocracies. The change was generally effected with the aid of a single legislator entrusted with complete authority to draw up a code.
The first communities to reach this stage of progress were
the Greek colonies in the West. The Epizephyrian Locrians,
near the extreme south of Italy, received the earliest
written code from Zaleucus (663 B.C.), whose strict
Zaleucus at Locri Epizephyrii.
Charondas at Catana, etc. and severe legislation put an end to a period of strife and confusion, though we know little of his laws, except that they attached definite penalties to each offence, and that they strictly protected the rights of property. Two centuries later, his code was adopted even by the Athenian colony of Thurii in south Italy (443 B.C.). Charondas, the “disciple” of Zaleucus, became the lawgiver, not only of his native town of Catana on the east coast of Sicily, but also of other Chalcidian colonies in Sicily and Italy. The laws of Charondas were marked by a Androdamas of Rhegium.
Philolaus of Corinth. singular precision, but there was nothing (says Aristotle) that he could claim as his own except the special procedure against false witnesses (Politics, ii. 12. 11). In the case of judges who neglected to serve in the law courts, he inflicted a large fine on the rich and a small fine on the poor (ib. vi. (iv.) 13. 2). Androdamas of Rhegium gave laws on homicide and on heiresses to the Chalcidians of Thrace, while Philolaus of Corinth provided the Thebans with “laws of adoption” with a view to preventing any change in the number of the allotments of land (ib. ii. 12. 8-14).
Local legislation in Crete is represented by the laws of the important city of Gortyn, which lies to the south of Ida in a plain watered by the Lethaeus. Part of that stream forms a sluice for a water-mill, and at or near this mill The laws of Gortyn. some fragmentary inscriptions were found by French archaeologists in 1857 and 1879. The great inscription, to which most of our knowledge of the laws is due, was not discovered until 1884. It had been preserved on a wall 27 ft. long and 5 ft. high, the larger part of which was buried in the ground, while its farthest extremity passed obliquely athwart the bed of the mill-stream. It was necessary to divert the water before the last four columns could be transcribed by the Italian scholar, Federico Halbherr, whose work was completed in the same year by the excavation and transcription of the first eight columns by the German scholar, E. Fabricius. In the following year Halbherr discovered more than eighty small fragments on the neighbouring site of a former temple of the Pythian Apollo.
These fragments, which are far earlier than the great inscription above-mentioned, have been assigned to about 650 B.C. They precede the introduction of coined money into Crete, the penalties being reckoned, not in coins, but in caldrons. They deal with the powers of the magistrates and the observances of religion, but are mainly concerned with private matters of barter and sale, dowry and adoption, inheritance and succession, fines for trespass and questions of blood-money. As in the code of Zaleucus, we have a fixed scale of penalties, including the fine of a single tripod, and ranging from one to a hundred caldrons.
The great inscription is perhaps two centuries later (c. 450 B.C.). It consists of a number of amendments or additions to an earlier code, and it deals exclusively with private law, in which the family and family property occupy the largest part. The procedure is entirely oral; oaths and other oral testimony are alone admitted; there are no documentary proofs, and no record of the verdict except in the memory of the judge or of his “remembrancer.” All the causes are tried before a single judge, who varies according to the nature of the suit. Where the law specially enjoins it, he is bound to give judgment (δικάδδεν) in accordance with the law and the “witnesses or oaths,” but, in other cases, he is permitted to take oath and decide (κρίνειν) in view of “the contentions of the parties,” as distinguished from “the declarations of the witnesses.” Offences against the person are treated as matters of private compensation according to a carefully graduated tariff. In certain cases the defendant may clear himself by an “oath of purgation” with the support of “cojurors” (ὁμωμόται), the Eideshelfer of old Germanic law (Grimm 859 f.), who have no necessary knowledge of the facts. There is no interference with the exposure of infants, except in the interest of the father (if the child is free-born) or of the lord (in the case of serfs). The law of debt is primitive, though less severe than that of the early Romans. In contrast with these primitive elements we have others which are distinctly progressive. The estates of husband, wife and sons are regarded as absolutely distinct. Wills are unknown, even in their most restricted form. Elaborate provisions are made to secure with all speed the marriage of an “heiress”; she is bound to marry the eldest of her paternal uncles or to surrender part of her estate, and it is only if there are no paternal uncles that she is permitted to marry one (and that the eldest) of their sons. Adoption is made by the simple procedure of mounting a block of stone in the market-place and making a public announcement at a time when the citizens are assembled. The adopted son does not inherit any larger share than that of a daughter. Any one who desires to repudiate his adopted son makes a public announcement as before, and the person repudiated receives, by way of nominal compensation, the gift of a small number of staters. In these later “laws of Gortyn” we have reached the time when payments are made, not in “caldrons,” but in coins. In the inscription itself the laws are simply described as “these writings.”
The text of the great inscription was first published by E. Fabricius in Ath. Mitth. ix. (1885), 362-384; there is a cast of the whole in the Cambridge Museum of Classical Archaeology. Cf. Comparetti’s Leggi di Gortyna (1893); Bücheler and Zittelmann in Rhein. Mus. xl. (1885); Dareste, Haussoullier and Th. Reinach, Inscr. juridiques grecques, iii. (1894), 352-493 (with the literature there quoted). Eng. trans. by Roby in Law Quarterly Review (1886), 135-152; see also E. S. Roberts, Gk. Epigraphy, i. 39 f., 52 f., 325-332; J. W. Headlam in Journal of Hellenic Studies, xiii. (1892-1893), 48-69; P. Gardner and F. B. Jevons, Greek Antiquities (1895), 560-574; W. Wyse in Whibley’s Companion to Greek Studies (1905), 378-383; and Hermann Lipsius, Zum Recht von Gortyns (Leipzig, 1909).
A Roman writer ascribes to the Athenians the very invention of lawsuits (Aelian, Var. Hist. iii. 38), and the Athenians Athens. themselves regarded their tribunals of homicide as institutions of immemorial antiquity (Isocr. Paneg. 40). On the abolition of the single decennial archon in 683 B.C., his duties were distributed over several officials holding office for one year only. The judicial duties thenceforth discharged by The three senior archons. the chief archon (the archon), in the case of citizens, were discharged by the polemarch in the case of foreign settlers or metics (μέτοικοι); while the king-archon, who succeeded to the religious functions of the ancient kings, decided cases connected with religious observances (see Archon). He also presided over the primitive council of the state, which was identical with the council of the Areopagus. It was possibly with a view to the recognition of the rights of the lower classes that, about the middle of the 7th century B.C., the three archons were raised to the number of nine by the institution The thesmothetae. of the joint board of the six thesmothetae, who superintended the judicial system in general, kept a record of all legal decisions, and drew attention to any defects in the laws. It is probable that in their title we have the earliest example in Attic Greek of the use of thesmos in the sense of “law.”
The constitution was at this time thoroughly oligarchical. With a view, however, to providing a remedy for the conflict between the several orders of the state, the first code of Athenian law was drawn up and published by Draco Draco. (strictly Dracon), who is definitely described as a thesmothetēs (621). His laws were known as thesmoi. The distinctive part of his legislation was the law of homicide, which was held in such high esteem that it was left unaltered in the legislation of Solon and in the democratic restoration of 411 B.C. It is partly preserved in an inscription of 409, which has been restored with the aid of quotations from the orators (C.I.A. i. 61; Inscr. jurid. grecques, ii. 1. 1-24; and Hicks, Gk. Hist. Inscr. No. 59). It drew a careful distinction between different kinds of homicide. Of the rest of Draco’s legislation we only know that Aristotle (Politics, ii. 12, 13) was struck by the severity of the penalties, and that the creditor was permitted to seize the person of the debtor as security for his debt.
The conflict of the orders was not allayed until both parties agreed in choosing Solon as mediator and as archon (594 B.C.). Solon cancelled all mortgages and debts secured on the person of the debtor, set free all who had become Solon. slaves for debt, and forbade such slavery for the future (see Solon). Thenceforth every citizen had also “the right of appeal to the law-courts,” and the privilege of claiming legal satisfaction on behalf of any one who was wronged. Cases of constitutional law (inter alia) came before large law-courts numbering hundreds of jurors, and the power of voting in these law-courts made the people masters of the constitution (Aristotle’s Constitution of Athens, c. 9). Solon’s legislation also had an important effect on the law of property. In primitive times, on a man’s death, his money or lands remained in the family, and, even in the absence of direct descendants, the owner could not dispose of his property by will. Permission to execute a will was first given to Athenian citizens by the laws of Solon. But “the Athenian Will was only an inchoate Testament” (Maine’s Ancient Law, c. vi.); for this permission was expressly limited to those citizens who had no direct male descendants (Dem. Lept. 102; Plutarch, Solon, 21; cf. Wyse on Isaeus, p. 325).
The law of intestate succession is imperfectly preserved in [Dem.] 43, § 51 (cf. Wyse, ib. p. 562 f.). In the absence of direct male descendants, a daughter who survived her father was known as an ἐπίκληρος, not an “heiress,” but a “person who went with the estate”; and, in the absence of a will, the right or duty of marrying the daughter followed (with certain obvious exceptions) the same rules as the right of succession to the estate (cf. Wyse, ib. p. 348 f.).
Among the reforms of Cleisthenes (508) was the law of
ostracism (q.v.). The privileges of the Areopagus were
Pericles, Cleon. curtailed (while its right to try certain cases of homicide was left untouched) by the reforms of Ephialtes (462), and of Pericles, who also restored the thirty “local justices” (453), limited the franchise to those of citizen-blood by both parents (451), and was the first to assign to jurors a fee for their services in the law-courts, which was raised to three obols by Cleon (425).
In contrast to legislative reforms brought about by lawgivers entrusted with special authority, such as Draco, Solon and Ordinary course of legislation. Cleisthenes, there was the regular and normal course of public legislation. The legislative power was not exercised directly by the popular assembly (see Ecclesia), but the preliminary consent of that body was necessary for the appointment of a legislative commission.
In the 5th century (e.g. in 450 and 446 B.C.) certain commissioners called συγγραφεῖς were appointed to draw up laws which, after approval by the council, were submitted Syngrapheis. Nomothetae. to the assembly. The same term was still in use in March 411 (Thuc. viii. 61). But in October, on the overthrow of the Four Hundred, the commissioners are for the first time called nomothetae (ib. 97).
The procedure in ordinary legislation was as follows. At the first meeting of the assembly in the year, the people was asked whether it would permit motions to be made for altering or supplementing the existing laws. A debate ensued, and, if such permission were granted, any citizen who wished to make a motion to the above effect was required to publish his proposals in the market-place, and to hand them to the secretary of the council (Boulē) to be read aloud at more than one meeting of the assembly. At the third regular meeting the people appointed the legislative commissioners, who were drawn by lot from the whole number of those then qualified to act as jurors. The number, and the duration of the commission, were determined in each case by the people. The proceedings before the commission were conducted exactly in the manner of a lawsuit. Those who desired to see old laws repealed, altered or replaced by new laws came forward as accusers of those laws; those of the contrary opinion, as defenders; and the defence was formally entrusted to public advocates specially appointed for the purpose (συνήγοροι). The number of the commissioners varied with the number or importance of the laws in question; there is evidence for the number 1001 (Dem. xxiv. 27). If a law approved by the commission was deemed to be unconstitutional, the proposer was liable to be prosecuted (by a γραφὴ παρανόμων), just as in the case of the proposer of an unconstitutional decree in the public assembly. Formal proceedings might also be instituted against laws on the sole ground of their inexpediency (see note on Aristotle’s Constitution of Athens, p. 219, ed. Sandys). A prosecutor who (like Aeschines in his indictment of Ctesiphon) failed to obtain one-fifth of the votes was fined 1000 drachmae (£40), and lost the right to adopt this procedure in future. When a year had elapsed, the proposer of a law or a decree was free from personal responsibility. This was the case with Leptines, but the law itself could still be attacked, and, in this event, five advocates were appointed to defend it (σύνδικοι), cf. Dem. Lept. 144, 146.
Limits of space make it impossible to include in the present article any survey of the purport of the extant remains of the laws of Athens. Such a survey would begin with the laws of the family, including laws of marriage, adoption The laws of Athens. and inheritance, followed by the law of property and contracts, and the laws for the protection of life, the protection of the person, and the protection of the constitution. The texts have been collected and classified in Télfy’s Corpus juris Attici (1867), a work which can be supplemented or corrected with the aid of Aristotle’s Constitution of Athens; while some of the recent expositions of the subject are mentioned in the bibliography at the end of this article. We now proceed to notice the law of homicide, but solely in connexion with jurisdiction.
The general term for a tribunal is δικαστήριον (from δικάζω), Anglicized “dicastery.” Of all the tribunals of Athens those for the trial of homicide were at once the most primitive Jurisdiction; the five primitive tribunals for the trial of homicide. and the least liable to suffer change through lapse of time. In the old Germanic law all trials whatsoever were held in the open air (Grimm 793 f.). At Athens this custom was characteristic of all the five primitive courts of homicide, the object being to prevent the prosecutor and the judges from coming under the same roof as one who was charged with the shedding of blood (Antiphon, De caede Herodis, 11). The place where the trial was held depended on the nature of the charge.
1. The rock of the Acropolis, outside the earliest of the city-walls, was the proper place for the trial of persons charged with premeditated homicide, or with wounding with intent to kill. On the Areopagus. The penalty for the former crime was death; for the latter exile; and, in either case, the property was confiscated. If the votes were equal, the person accused was acquitted. The proceedings lasted for three days, and each side might make two speeches. After the first speech the person accused of premeditated homicide was mercifully permitted to go into exile, in which case his property was confiscated, and in the ordinary course he remained in exile for the rest of his life.
2. Charges of unpremeditated homicide, or of instigating another to inflict bodily harm on a third person, or of killing a slave or a resident alien or a foreigner, were tried at the Palladion, At the Palladion. the ancient shrine of Pallas, east of the city-walls. The punishment for unpremeditated homicide was exile (without confiscation) until such time as the criminal had propitiated the relatives of the person slain, or (failing that) for some definite time. The punishment for instigating a crime was the same as for actually committing it.
At the Delphinion. 3. Trials at the Delphinion, the shrine of Apollo Delphinios, in the same quarter, were reserved for special cases of either accidental or justifiable homicide.
4. If a man already in exile for unpremeditated homicide were accused of premeditated homicide, or of wounding with intent to At Phreatto. kill, provision was made for this rare contingency by permitting him to approach the shore of Attica and conduct his defence on board a boat, while his judges heard the cause on shore, at a “place of pits” called Phreatto, near the harbour of Zea. If the accused were found guilty, he incurred the proper penalty; if acquitted, he remained in exile.
5. The court in the precincts of the Prytaneum, to the north of the Acropolis, was only of ceremonial importance. It “solemnly heard At the Prytaneum. and condemned undiscovered murderers, and animals or inanimate objects that had caused the loss of life.” The writ ran “against the doer of the deed,” and any instrument of death that was found guilty was thrown across the frontier. The trial was held by the four “tribe-kings” (φυλοβασιλεῖς), an archaic survival from before the time of Cleisthenes. (On these five courts see Aristotle’s Constitution of Athens, c. 57, and Dem. Aristocr. 65-79.)
In all the courts of homicide the president was the archon-basileus, or king-archon, who on these occasions laid aside his crown. Ephetae. Originally all these courts were under the jurisdiction of an ancient body of judges called the ephetae (ἐφέται), whose institution was ascribed to Draco. The transfer of the first of the above courts to the council of the Areopagus is attributed to Solon. In practice the jurisdiction of the ephetae (see also Areopagus) was probably confined to the courts at the Palladion and Delphinion; but even there the rights of this primitive body became obsolete, for trials “at the Palladion” sometimes came before an ordinary tribunal of 500 or 700 jurors (Isocr. c. Callim. 52, 54; [Dem.] c. Neaeram, 10).
Except in the case of the primitive courts of homicide, the
right of jurisdiction was entrusted to the several archons until
the date of Solon (594). When the direct jurisdiction
of the archons was impaired by Solon’s institution
The presidents of the tribunals.
The chief archon.
The king-archon. of the “right of appeal to the law-courts,” the dignity of those officials was recognized by their having the privilege of presiding over the new tribunals (ἡγεμονία δικαστηρίου). A similar position was assigned to the other executive officers, such as the strategi (generals), the board of police called the “Eleven,” and the financial officers, all of whom presided over cases connected with their respective departments. In their new position as presidents of the several courts, the archons received plaints, obtained from both parties the evidence which they proposed to present, formally presided at the trial, and gave instructions for the execution of the sentence. The choice of the presiding magistrate in each case was determined by the normal duties of his office. Thus the chief archon, the official guardian of orphans and The polemarch.
The thesmothetae. widows, presided in all cases, public or private, connected with the family property of citizens (Aristotle, u.s. c. 56). The king-archon had charge of all offences against religion, e.g. indictments for impiety, disputes within the family as to the right to hold a particular priesthood, and all actions for homicide (c. 57). The third archon, the polemarch, discharged in relation to resident aliens all such legal duties as were discharged by the chief archon in relation to citizens (c. 58). The trial of military offences was under the presidency of the strategi, who were assisted by the other military officers in preparing the case for the court. The six junior archons, the thesmothetae, acted as a board which was responsible for all cases not specially assigned to any other officials (details in c. 59).
The Forty, who were appointed by lot, four for each of the ten tribes, acted as sole judges in petty cases where the damages claimed did not exceed ten drachmae. Claims beyond that amount they handed over to the arbitrators. The Forty. The four representatives of any given tribe received notice of such claims brought against members of that tribe. It seems probable that they dealt with all private suits not otherwise assigned, but, unlike the archons, they did not prepare any case for the court but referred it, in the first instance, to a public arbitrator appointed by lot (c. 53).
The public arbitrators (διαιτηταί) were a body including all Athenian citizens in the sixtieth year of their age. The arbitrator, on receiving the case from the four representatives of the Forty, first endeavoured to bring the parties The public arbitrators. to an agreement. If this failed, he heard the evidence and gave a decision. If the decision were accepted, the case was at an end, but, if either of the two parties insisted on appealing to a law-court, the arbitrator placed in two caskets (one for each party) copies of all the depositions, oaths and challenges, and of all the laws quoted in the case, sealed them up, and, after attaching a copy of his own decision, handed them over to the four representatives of the Forty, who brought the case into court and presided over the trial. Documents which had not been brought before the arbitrator could not be produced in court. The court consisted of 201 jurors where the sum in question was not more than 1000 drachmae (£40); in other cases the number of jurors was 401 (c. 53).
A small board of five appointed by lot, one for each pair of tribes, and known as the “introducers” (εἰσαγωγεῖς), brought Eisagōgeis. up certain of the cases that had to be decided within a month (ἔμμηνοι δίκαι), such as actions for restitution of dowry, repayment of capital for setting up a business, and cases connected with banking.
The largest and most important of the legal tribunals, the “dicastery” (par excellence), was known as the heliaea. The name, which is of uncertain origin, denotes not only the place where the court was held but also the members Heliaea. of the court,—the heliastae of Aristophanes, the dicastae, or ἄνδρες δικασταί, of the Attic orators. During the palmy days of the Athenian democracy, in the interval between the Persian and the Peloponnesian wars, the total number liable to serve as jurors is said to have been 6000 (Aristotle, u.s. c. 24. 3), and this number was never exceeded (Aristoph. Vesp. 661 f.). Any Athenian citizen in full possession of his rights, and over thirty years of age, was entitled to be placed on the list (Aristotle, u.s. c. 63. 3). At the beginning of the year the whole body of jurors assembled on the hill of Ardēttos looking down on the Panathenaic Stadium, and there took a solemn oath to the effect that they would judge according to the laws and decrees of the Athenian people and of the council of the Five Hundred (Boulē), and that, in cases where there were no laws, they would decide to the best of their judgment; that they would hear both sides impartially, and vote on the case actually before the court.
It has been suggested that, as the normal number of a court was 500, the maximum number of 6000 jurors was probably divided into ten sections of 500 each, with 1000 reserves. There is evidence in the 4th century for courts of 200, 400, 500, 700 and (in important political trials) various multiples of 500, namely, 1000, 1500, 2000 or 2500. To some of these numbers one juror is added; it was probably added to all, to obviate the risk of the votes being exactly equal.
The evidence as to the organization of the jurors in the early part of the 4th century is imperfect. Passages in Aristophanes (Ecclesiazusae, 682-688; Plutus, 1166 f.) imply that in 392-388 B.C. the total number was divided into ten sections distinguished by the first ten letters of the Greek alphabet, A to K. Every juror, on his first appointment, received a ticket of boxwood (or of bronze) bearing his name with that of his father and his deme, and with one of the above letters in the upper left-hand corner. Of the bronze tickets many have been found (see notes on Aristotle’s Constitution of Athens, c. 63, and fig. 1 in frontispiece, ed. Sandys). These tickets formed part of the machinery for allotting the jurors to the several courts. To guard against the possibility of bribery or other undue influence, the allotment did not take place until immediately before the hearing of the case. Each court contained an equal number of jurors from each of the ten tribes, and thus represented the whole body of the state. The juror, on entering the court assigned him, received a counter (see fig. 3 in frontispiece, u.s.), on presenting which at the end of the day he received his fee. The machinery for carrying out the above arrangements is minutely described at the end of Aristotle’s Constitution of Athens (for details, cf. Gilbert, 397-399, Eng. trans., or Wyse in Whibley’s Companion to Greek Studies, 387 f.).
The law-courts gradually superseded most of the ancient
judicial functions of the council and the assembly, but the
council continued to hold a strict scrutiny (δοκιμασία)
of candidates for office or for other privileges, while
Jurisdiction of the council and assembly.
Eisangelia. the council itself, as well as all other officials, had to give account (εὔθυνα) on ceasing to hold office. The council also retained the right to deal with extraordinary crimes against the state. It was open to any citizen to bring such crimes to the knowledge of the council in writing. The technical term for this information, denunciation or impeachment was eisangelia (εἰσαγγελία). The council could inflict a fine of 500 drachmae (£20), or, in important cases, refer the matter either to a law-court, as in the trial of Antiphon (Thuc. viii. 68), or to the ecclesia, as in that of Alcibiades (415 B.C.), and the strategi in command at Arginusae (406; Xen. Hell. i. 7. 19). The term εἰσαγγελία was also applied to denunciations brought against persons who wronged the orphan or the widow, or against a public arbitrator who had neglected his duty (Dem. Meidias, 86 f.).
A “presentation” of criminal information (προβολή) might be laid before the assembly with a view to obtaining its preliminary sanction for bringing the case before a judicial tribunal. Such was the mode of procedure Probolē. adopted against persons who had brought malicious, groundless or vexatious accusations, or who had violated the sanctity of certain public festivals. The leading example of the former is the trial of the accusers who prompted the people to put to death the generals who had won the Battle of Arginusae (Xen. Hell. i. 7. 34); and, of the latter, the proceedings of Demosthenes against Meidias.
Legal actions (δίκαι) were classified as private (ἴδιαι) or public (δημόσιαι). The latter were also described as γραφαί or “prosecutions,” but some γραφαί were called “private,” when the state was regarded as only indirectly injured Classes of legal actions. by a wrong done to an individual citizen (Dem. xxi. 47). A private suit could only be brought by the man directly interested, or, in the case of a slave, a ward or an alien, by the master, guardian or patron respectively; and, if the suit were successful, the sum claimed generally went to the plaintiff. Public actions may be divided into ordinary criminal cases, and offences against the state. As a rule they could be instituted by any person who possessed the franchise, and the penalty was paid to the state. If the prosecutor failed to obtain one-fifth of the votes, he had to pay a fine of 1000 drachmae (£40), and lost the right of ever bringing a similar action.
Lawsuits, whether public or private, were also distinguished as δίκαι κατά τινος or πρός τινα, according as the defeated party could or could not be personally punished. Actions (ἀγῶνες) were also distinguished as ἀγῶνες τιμητοί (“to be assessed”), in which the amount of damages had to be determined by the court, because it had not been fixed by law, and ἀτίμητοι (“not to be assessed”), in which the damages had not to be determined by the court, because they had already been fixed by law or by special agreement.
Among special kinds of action were ἀπαγωγή, ἐφήγησις and ἔνδειξις. These could only be employed when the offence was patent and could not be denied. In the first, the person accused was summarily arrested by the prosecutor and haled into the presence of the proper official. In the second, the accuser took the officer with him to arrest the culprit (Dem. xxii. 26). In the third, he lodged an information with the official, and left the latter to effect the capture. Φάσις, a general term for many kinds of legal “information,” was a form of procedure specially directed against those who injured the fiscal interests of the state, and against guardians who neglected the pecuniary interests of their wards. Ἀπογραφή was an action for confiscating property in private hands, which was claimed as belonging to the state, the term being derived from the claimants’ written inventory of the property in question.
The ordinary procedure in all lawsuits, public or private, began with a personal summons (πρόσκλησις) of the Ordinary legal procedure. defendant by the plaintiff accompanied by two witnesses (κλητῆρες). If the defendant failed to appear in court, these witnesses gave proof of the summons, and judgment went by default.
The action was begun by presenting a written statement of the case to the magistrate who presided over trials of the class in question. If the statement were accepted, court-fees were paid by both parties in a private action, and by the prosecutor alone in a public action. The magistrate fixed a day for the preliminary investigation (ἀνάκρισις), and, whenever several causes were instituted at the same time, he drew lots to determine the order in which they should be taken. Hence the plaintiff was said “to have a suit assigned him by lot” (λαγχάνειν δίκην), a phrase practically equivalent to “obtaining leave to bring an action.” At the ἀνάκρισις the plaintiff and defendant both swore to the truth of their statements. If the defendant raised no formal protest, the trial proceeded in regular course (εὐθυδικία), but he might contend that the suit was inadmissible, and, to prove his point, might bring witnesses to confront those on the side of the plaintiff (διαμαρτυρία), or he might rely on argument without witnesses by means of a written statement traversing that of the plaintiff (παραγραφή). The person who submitted the special plea in bar of action naturally spoke first, and, if he gained the verdict, the main suit could not come on, or, at any rate, not in the way proposed or before the same court. A cross-action (ἀντιγραφή) might be brought by the defendant, but the verdict did not necessarily affect that of the original suit.
In the preliminary examination copies of the laws or other documents bearing on the case were produced. If any such document were in the hands of a third person, he could be compelled to produce it by an action for that Documents. purpose (εἰς ἐμφανῶν κατάστασιν). The depositions were ordinarily made before the presiding officer and were taken down in his presence. If a witness were compelled to be absent, a certified copy of his deposition might be sent (ἐκμαρτυρία). The depositions of slaves were not accepted, unless made under torture, and for receiving such evidence the consent of both parties was required. Either party could challenge the other to submit his slaves to the Challenges. test (πρόκλησις εἰς βάσανον), and, in the event of the challenge being refused, could comment on the fact when the case came before the court. Either party could also challenge the other to take an oath (πρόκλσις εἰς ὄρκον), and, if the oath were declined, could similarly comment on the fact.
Mercantile cases had to be decided within the interval of a month; others might be postponed for due cause. If, on the day of trial, one of the parties was absent, his representative had to show cause under oath (ὑπωμοσία); The trial. if the other party objected, he did so under oath (ἀνθυπωμοσία). If the plea for delay were refused by the court, and it were the defendant who failed to appear, judgment went by default; in the absence of the plaintiff, the case was given in favour of the defendant.
The official who had conducted the preliminary inquiry also presided at the trial. The proceedings began with a solemn sacrifice. The plea of the plaintiff and the formal reply of the defendant were then read by the clerk. The court was next addressed first by the plaintiff, next by the defendant; in some cases there were two speeches on each side. Every litigant was legally required to conduct his own case. The speeches were often composed by professional experts for delivery by the parties to the suit, who were required to speak in person, though one or more unprofessional supporters (συνήγοροι) might subsequently speak in support of the case. The length of the speeches was in many cases limited by law to a fixed time recorded by means of a water-clock (clepsydra). Documents were not regarded as part of the speech, and, while these were being read, the clock was stopped (Goethe found a similar custom in force in Venice in October 1786). The witnesses were never cross-examined, but one of the litigants might formally interrogate the other. The case for the defence was sometimes finally supported by pathetic appeals on the part of relatives and friends.
When the speeches were over, the votes were taken. In the 5th century mussel-shells (χοιρῖναι) were used for the purpose. Each of the jurors received a shell, which he placed in one of the two urns, in that to the front if he voted for acquittal; in that to the back if he voted for condemnation. If a second vote had to be taken to determine the amount of the penalty, wax tablets were used, on which the juror drew a long line, if he gave the heavy penalty demanded by the plaintiff; a short one, if he decided in favour of the lighter penalty proposed by the defendant.
In the 4th century the mussel-shells were replaced by disks of bronze. Each disk (inscribed with the words ΨΗΦΟΣ ΔΗΜΟΣΙΑ) was about 1 in. in diameter, with a short tube running through the centre. This tube was either perforated or closed (see figs. 6 and 7 in frontispiece to Aristotle’s Constitution of Athens, ed. Sandys). One of each kind was given to every juror, who was required to use the perforated or the closed disk, according as he voted for the plaintiff or for the defendant. On the platform there were two urns, one of bronze and one of wood. The juror placed in the hollow of his hand the disk that he proposed to use, and closed his fingers on the extremity of the tube, so that no one could see whether it were a perforated disk or not, and then deposited it in the bronze urn, and (with the same precaution to ensure secrecy) dropped the unused disk into the wooden urn. The votes were sorted by persons appointed by lot, and counted by the president of the court, and the result announced by the herald. For any second vote the same procedure was adopted (Aristotle, u.s., c. 68 of Kenyon’s Berlin text).
Pecuniary penalties were inflicted both in public and in private suits; personal penalties, in public suits only. Personal penalties included sentences of death or exile, or different degrees of disfranchisement (ἀτιμία) with or Penalties. without confiscation. Imprisonment before trial was common, and persons mulcted in penalties might be imprisoned until the penalties were paid, but imprisonment was never inflicted as the sole penalty after conviction. Foreigners alone could be sold into slavery. Sentences of death were carried out under the supervision of the board of police called the “Eleven.” In ancient times a person condemned was hurled into a deep pit (the barathrum) in a north-western suburb of Athens. In later times he was compelled to drink the fatal draught of hemlock. Common malefactors were beaten to death with clubs. Fines were collected and confiscated property sold by special officials, called πράκτορες and πωληταί respectively. In private suits the sentence was executed by the state if the latter had a share in any fine imposed, or if imprisonment were part of the penalty. Otherwise, the execution of the sentence was left to the plaintiff, who had the right of distraint, or, if this failed, could bring an action of ejectment (δίκη ἐξούγης).
From the verdict of the heliaea there was no appeal. But, if judgment had been given by default, the person condemned might bring an action to prove that he was not responsible for such default, τὴν ἔρημον (sc. δίκην) ἀντιλαγχάνειν. The corresponding term for challenging the award of an arbitrator was τὴν μὴ οὖσαν ἀντιλαγχάνειν. He might also bring an action for false evidence (δίκη ψευδομαρτυριῶν) against his opponent’s witnesses, and, on their conviction, have the sentence annulled. This “denunciation” of false evidence was technically called ἐπίσκηψις and ἐπισκήπτεσθαι.
The large number of the jurors made bribery difficult, but, as was first proved by Anytus (in 409), not impossible. It also diminished the feeling of personal responsibility, while it increased the influence of political motives. In Character of the Athenian tribunals. addressing such a court, the litigants were not above appealing to the personal interests of the general public. We have a striking example of this in the terms in which Lysias makes one of his clients close a speech in prosecution of certain retail corn-dealers who have incurred the penalty of death by buying more than 75 bushels of wheat at one time: “If you condemn these persons, you will be doing what is right, and will pay less for the purchase of your corn; if you acquit them, you will pay more” (xxii. § 22).
Speakers were also tempted to take advantage of the popular ignorance by misinterpreting the enactments of the law, and the jurors could look for no aid from the officials who formally presided over the courts. The latter were not necessarily experts, for they owed their own original appointment to the caprice of the lot. Almost the only officials specially elected as experts were the strategi, and these presided only in their own courts. Again, there was every temptation for the informer to propose the confiscation of the property of a wealthy citizen, who would naturally prefer paying blackmail to running the risk of having his case tried before a large tribunal which was under every temptation to decide in the interests of the treasury. In conclusion we may quote the opinions on the judicial system of Athens which have been expressed by two eminent classical scholars and English lawyers.
A translator of Aristophanes, Mr B. B. Rogers, records his opinion “that it would be difficult to devise a judicial system less adapted for the due administration of justice” (Preface to Wasps, xxxv. f.), while a translator of Demosthenes, Mr C. R. Kennedy, observes that the Athenian jurors “were persons of no legal education or learning; taken at haphazard from the whole body of citizens, and mostly belonging to the lowest and poorest class. On the other hand, the Athenians were naturally the quickest and cleverest people in the world. Their wits were sharpened by the habit . . . of taking an active part in important debates, and hearing the most splendid orators. There was so much litigation at Athens that they were constantly either engaged as jurors, or present as spectators in courts of law” (Private Orations, p. 361).
Authorities.—1. Greek Law. B. W. Leist, Gräco-italische Rechtsgeschichte (Jena, 1884); L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs, mit Beiträgen zur Kenntnis des griechischen Rechts (Leipzig, 1891); J. H. Lipsius, Von der Bedeutung des griechischen Rechts (Leipzig, 1893); G. Gilbert, “Zur Entwickelungsgeschichte des . . . griechischen Rechtes” in Jahrb. für kl. Philologie (Leipzig, 1896); H. J. Hitzig, Die Bedeutung des altgriechischen Rechtes für die vergleichende Rechtswissenschaft (Stuttgart, 1906); R. Hirzel, Themis, Dike und Verwandtes (Leipzig, 1907); J. J. Thonissen, Le Droit criminel de la Grèce légendaire, followed by Le Droit pénal de la république athénienne (Brussels, 1875).
2. Attic Law. (a) Editions of Greek texts: I. B. Télfy, Corpus juris Attici (Pest and Leipzig, 1868); Aristotle’s Constitution of Athens, ed. Kenyon (London, 1891, &c., and esp. ed. 4, Berlin, 1903); ed. 4, Blass (Leipzig, 1903); text with critical and explanatory notes, ed. Sandys (London, 1893); Lysias, ed. Frohberger (Leipzig, 1866-1871); Isaeus, ed. Wyse (Cambridge, 1904); Demosthenes, Private Orations, ed. Paley and Sandys, ed. 3 (Cambridge, 1896-1898); Against Midias, ed. Goodwin (Cambridge, 1906); Dareste, Haussoullier, Th. Reinach, Inscr. juridiques grecques (Paris, 1891-1904). (b) Modern treatises: K. F. Hermann, De vestigiis institutorum
- For further information as to the evolution of the Athenian constitution see Archon, Areopagus, Boulē, Ecclesia, Strategus, and articles on all the chief legislators.
- In the case of “animals,” we may compare the Mosaic law of Exod. xxxi. 28 and the old Germanic law (Grimm 664); and in that of “inanimate objects,” the English law of deodands (Blackstone i. 300), repealed in 1846. See also Frazer on Pausanias, i. 28. 10.
- Cf. R. J. Bonner, in Classical Philology (Chicago, 1907), 407-418, who urges that only cases belonging to the Forty were subject to public arbitration.
- Connected either with ἁλίζεσθαι, “to assemble,” or ἥλιος, or Ἥλις (cf. Curt Wachsmuth, Stadt Athen, ii. (1) 359-364). The first is possibly right (cf. Rogers on Aristoph. Wasps, xvii. f.); the second implies that this large court was held in the open air (Lipsius, Att. Recht, 172).