Greek law and comparative jurisprudence.
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 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.
Original authorities.
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 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).
Law in Homer.
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 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" ([Greek: oute dikas eu eidota oute themistas], _Od._ ix. 215 and
112 f.).
Dike.
_Dike_ ([Greek: dike]), assigned by Curtius (_Etym._ 134) to the same
root as [Greek: deiknymi], primarily means a "way pointed out," a
"course prescribed by usage," hence "way" or "fashion," "manner" 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,"
[Greek: tiousi diken].
Themis.
Various senses of "right" are expressed in the same poems by _themis_
([Greek: themis]), a term assigned (_ib._ 254) to the same root as
[Greek: tithemi]. In its primary sense _themis_ is that which "has
been laid down"; hence a particular decision or "doom." The 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 _dike_ 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. Nomos.
_Thesmos_ ([Greek: thesmos]), an ordinance (from the same root as
themis), is not found in "Homer," except in the last line of the
original form of the _Odyssey_ (xxiii. 296), where it probably refers
to the "ordinance" of wedlock. The common term for law, [Greek:
nomos], is first found in Hesiod, but not in a specially legal sense
(e.g. _Op._ 276).
The trial scene.
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 has been slain. The slayer vows that he has paid all
([Greek: eucheto pant' apodounai]), the kinsman of the slain protests
that he has received nothing ([Greek: anaineto meden helesthai]); 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" ([Greek: to
domen hos meta toisi diken ithyntata eipoi]).
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, _Rechtsalterthumer_, 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 [Greek: diken eipein]),
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 penal_ (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.
Greek lawgivers: Lycurgus at Sparta.
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 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."
Era of written laws.
Law was first reduced to writing in the 7th century B.C. A written code
is a necessary condition of just judgment, and 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.
Zaleucus at Locri Epizephyrii.
Charondas at Catana, etc.
Androdamas of Rhegium.
Philolaus of Corinth.
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 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
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).
The laws of Gortyn.
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 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 ([Greek:
dikadden]) in accordance with the law and the "witnesses or oaths,"
but, in other cases, he is permitted to take oath and decide ([Greek:
krinein]) 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" ([Greek: homomotai]), 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); Bucheler 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).
Athens.
The three senior archons.
The thesmothetae.
A Roman writer ascribes to the Athenians the very invention of lawsuits
(Aelian, _Var. Hist._ iii. 38), and the Athenians themselves regarded
their tribunals of homicide as institutions of immemorial antiquity
(Isocr. _Paneg._ 40). On the abolition of the single decennial
archon[1] in 683 B.C., his duties were distributed over several
officials holding office for one year only. The judicial duties
thenceforth discharged by the chief archon (_the_ archon), in the case
of citizens, were discharged by the polemarch in the case of foreign
settlers or metics ([Greek: metoikoi]); 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 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."
Draco.
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 (strictly Dracon), who is definitely described as a
_thesmothetes_ (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.
Solon.
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 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, S
51 (cf. Wyse, _ib._ p. 562 f.). In the absence of direct male
descendants, a daughter who survived her father was known as an [Greek:
epikleros], 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.).
Cleisthenes, Ephialtes.
Pericles, Cleon.
Among the reforms of Cleisthenes (508) was the law of ostracism (q.v.).
The privileges of the Areopagus were 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).
Ordinary course of legislation.
In contrast to legislative reforms brought about by lawgivers entrusted
with special authority, such as Draco, Solon and 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.
Syngrapheis. Nomothetae.
In the 5th century (e.g. in 450 and 446 B.C.) certain commissioners
called [Greek: syngrapheis] were appointed to draw up laws which, after
approval by the council, were submitted 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 (Boule) 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 ([Greek: sunegoroi]).
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
[Greek: graphe paranomon]), 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_ (L40), 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 ([Greek: sundikoi]), cf. Dem.
_Lept._ 144, 146.
The laws of Athens.
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 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 Telfy'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.
Jurisdiction; the five primitive tribunals for the trial of homicide.
The general term for a tribunal is [Greek: dikasterion] (from [Greek:
dikazo]), Anglicized "dicastery." Of all the tribunals of Athens those
for the trial of homicide were at once the most primitive 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.
On the Areopagus.
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. 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.
At the Palladion.
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, 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.
At Phreatto.
4. If a man already in exile for unpremeditated homicide were accused
of premeditated homicide, or of wounding with intent to 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.
At the Prytaneum.
5. The court in the precincts of the Prytaneum, to the north of the
Acropolis, was only of ceremonial importance. It "solemnly heard and
condemned undiscovered murderers, and animals or inanimate objects
that had caused the loss of life."[2] 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" ([Greek: phylobasileis]), 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.)
Ephetae.
In all the courts of homicide the president was the archon-basileus,
or king-archon, who on these occasions laid aside his crown.
Originally all these courts were under the jurisdiction of an ancient
body of judges called the ephetae ([Greek: ephetai]), 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).
The presidents of the tribunals.
The chief archon.
The king-archon.
The polemarch.
The strategi.
The thesmothetae.
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 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 ([Greek: hegemonia dikasteriou]). 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 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.
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 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).[3]
The public arbitrators.
The public arbitrators ([Greek: diaitetai]) 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 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_ (L40); in other cases
the number of jurors was 401 (c. 53).
Eisagogeis.
A small board of five appointed by lot, one for each pair of tribes, and
known as the "introducers" ([Greek: eisagogeis]), brought up certain of
the cases that had to be decided within a month ([Greek: emmenoi
dikai]), such as actions for restitution of dowry, repayment of capital
for setting up a business, and cases connected with banking.
Heliaea.
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,[4] denotes not only the place where the court was held
but also the members of the court,--the _heliastae_ of Aristophanes, the
_dicastae_, or [Greek: andres dikastai], 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 Ardettos 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 (Boule), 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.).
Jurisdiction of the council and assembly.
Eisangelia.
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 ([Greek: dokimasia]) of candidates for office or
for other privileges, while the council itself, as well as all other
officials, had to give account ([Greek: euthyna]) 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_
([Greek: eisangelia]). The council could inflict a fine of 500
_drachmae_ (L20), 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 [Greek:
eisangelia] 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.).
Probole.
A "presentation" of criminal information ([Greek: probole]) 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 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.
Classes of legal actions.
Legal actions ([Greek: dikai]) were classified as private ([Greek:
idiai]) or public ([Greek: demosiai]). The latter were also described as
[Greek: graphai] or "prosecutions," but some [Greek: graphai] were
called "private," when the state was regarded as only indirectly injured
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_ (L40),
and lost the right of ever bringing a similar action.
Lawsuits, whether public or private, were also distinguished as [Greek:
dikai kata tinos] or [Greek: pros tina], according as the defeated party
could or could not be personally punished. Actions ([Greek: agones])
were also distinguished as [Greek: agones timetoi] ("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 [Greek: atimetoi] ("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 [Greek: apagoge], [Greek: ephegesis]
and [Greek: endeixis]. 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. [Greek: Phasis], 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. [Greek: Apographe] 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.
Ordinary legal procedure.
The ordinary procedure in all lawsuits, public or private, began with a
personal summons ([Greek: prosklesis]) of the defendant by the plaintiff
accompanied by two witnesses ([Greek: kleteres]). 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 ([Greek:
anakrisis]), 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"
([Greek: lanchanein diken]), a phrase practically equivalent to
"obtaining leave to bring an action." At the [Greek: anakrisis] 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 ([Greek: euthydikia]), 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 ([Greek: diamartyria]), or he might
rely on argument without witnesses by means of a written statement
traversing that of the plaintiff ([Greek: paragraphe]). 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
([Greek: antigraphe]) might be brought by the defendant, but the verdict
did not necessarily affect that of the original suit.
Documents.
Challenges.
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 purpose ([Greek: eis emphanon katastasin]). 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 ([Greek: ekmartyria]).
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 test ([Greek: proklesis eis basanon]), 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 ([Greek: proklesis eis horkon]), and, if the oath were declined,
could similarly comment on the fact.
The trial.
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
([Greek: hupomosia]); if the other party objected, he did so under oath
([Greek: anthupomosia]). 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 ([Greek: synhegoroi]) 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 ([Greek: choirinai]) 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 [Greek: PSEPHOS DEMOSIA]) 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).
Penalties.
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
([Greek: atimia]) with or 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 [Greek: praktores] and [Greek: poletai] 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 ([Greek: dike hexouges]).
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, [Greek: ten eremon]
(_sc._ [Greek: diken]) [Greek: antilanchanein]. The corresponding term
for challenging the award of an arbitrator was [Greek: ten me ousan
antilanchanein]. He might also bring an action for false evidence
([Greek: dike pseudomartyrion]) against his opponent's witnesses, and,
on their conviction, have the sentence annulled. This "denunciation" of
false evidence was technically called [Greek: episkepsis] and [Greek:
episkeptesthai].
Character of the Athenian tribunals.
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 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. S 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, _Graco-italische
Rechtsgeschichte_ (Jena, 1884); L. Mitteis, _Reichsrecht und
Volksrecht in den ostlichen Provinzen des romischen Kaiserreichs, mit
Beitragen 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. fur kl. Philologie_ (Leipzig, 1896); H. J. Hitzig, _Die
Bedeutung des altgriechischen Rechtes fur die vergleichende
Rechtswissenschaft_ (Stuttgart, 1906); R. Hirzel, _Themis, Dike und
Verwandtes_ (Leipzig, 1907); J. J. Thonissen, _Le Droit criminel de la
Grece legendaire_, followed by _Le Droit penal de la republique
athenienne_ (Brussels, 1875).
2. Attic Law. (a) Editions of Greek texts: I. B. Telfy, _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 ... Atticorum per Platonis de legibus libros indagandis_
(Marburg, 1836); _Staatsaltertumer_, ed. 6, Thumser (Freiburg, 1892);
_Rechtsaltertumer_, ed. 3, Thalheim (Freiburg, 1884); G. Busolt,
_Staatsund Rechtsaltertumer_, ed. 2 (Munich, 1892); U. von
Wilamowitz-Mollendorff, _Aristoteles und Athen_ (Berlin, 1893); G.
Gilbert, _Gk. Constitutional Antiquities_ (vol. i., Eng. trans., pp.
376-416, London, 1895); J. H. Lipsius, (1) new ed. of Meier and
Schomann, _Der attische Process_ (Berlin, 1883-1887); (2) ed. 4 of
Schomann, _Gr. Altertumer_ (Berlin, 1897-1902); (3) _Das attische
Recht und Rechtsverfahren_ (Leipzig, 1905); Daremberg and Saglio,
_Dictionnaire des antiquites_ (Paris, 1877); G. Glotz, _La Solidarite
de la famille dans le droit criminel en Grece_ (Paris, 1904); L.
Beauchet, _Droit prive de la rep. athen._ (4 vols., Paris, 1897); C.
R. Kennedy, _Appendices to transl. of Dem._ vols. iii. and iv.
(1856-1861); Smith's _Dictionary of ... Antiquities_, ed. 3 (1891); F.
B. Jevons, in Gardner and Jevons, _Greek Antiquities_ (1895, pp.
526-597); W. Wyse, in Whibley's _Companion to Greek Studies_
(Cambridge, 1905), pp. 377-402. (J. E. S.*)