GREEK LAW. The basis for the development of Greek law was laid by the rise in Greece of city-states (poleis) . Primitively all Greeks were tribal; or, to use their own term, ethnic. But between 1200 and Soo B.C. among those of them who had en tered the area of the Aegean civilization tribes were replaced by city-states. Of Greek tribal law little need be said. Its source was twofold. For the most part it issued from kindred-groups families and brotherhoods (pltratries)—by which also in this event it was enforced. But it likewise sprang from the tribal government—kings, elders and assemblies ; and tribal, and even intertribal, pressure operated to produce or maintain a general sameness in the rules and regulations of the lesser groups. Tribal law, and the law of the early city-states as well, consisted of cus tomary rules preserved by popular memory. So long as they were thus intangible they could be changed only unconsciously by the slow processes of social growth. Thus, they seemed unchange able. Nor did the gods withhold their hands after they had laid down the fundamental ordinances. From Zeus there came to every king, so Homer tells us, the dooms (themistes) according to which he settled disputes (Il. ix. 99).
Tribal justice had as its mainspring self-help. Its course may be illustrated in cases of homicide. Fear of vengeance at the hands of the kindred of the slain man drove his slayer, whether guilty or innocent, to seek exile, sanctuary or the protection of his blood-brothers. But to avoid the feuds, to which acts of vio lence and reprisals gave rise, recourse was had to commutation, and if this proved inefficacious, to arbitration. The oldest Greek trial of which we have record was one arising out of a dispute be tween a slayer and avenger as to the receipt or non-receipt of blood-money. The hearing was held publicly, in the place of as sembly, and was attended by partisans of both contestants, who were restrained by public officers (heralds). The "daysman" ('&Tcop) was supported by the elders. They sat on "polished stones in the sacred circle," and in their midst lay two pieces of gold to be awarded either to the disputant who made good his contention or to the elder who declared most righteously the rule of law (hiKrl) governing the case (Il. xviii. The scope of self-help was wider than the scope of kinsmen help. The adulterer, no less than the homicide, could be dealt with directly by the party aggrieved; but since unmitigated self help was socially suicidal, even if he were caught in flagrante delicto he might be ransomed if a bondsman went surety for him (Od. viii• 344-599)• Where death or violence were not its normal accompaniments the practice of affirming rights solely by self help lasted longer. Until a late date a creditor might seize the person of his debtor for nonfulfillment of contract. Long after the rights of talio and "distress" had been subordinated to state law they continued to be legitimate remedies of international law.
The Iliad and Odyssey of Homer are the sole contemporary source for early Greek law. They reflect its condition in the pe riod of transition from the tribe to the city-state. Between Homer and the 7th century revolutionary changes in constitutional law occurred. They affected comparatively little the rules applicable within the family sphere; but the autonomy of the kinsmen groups in pursuing private vengeance was radically affected by the coming to prevalence of an attitude toward homicide that lifted murder out of the category of ordinary acts of violence; the slayer was thought to pollute the entire community. So the state could no longer remain neutral.
The defects of unwritten laws were not so much their vague ness as their failure to cover new situations. They might coerce facts and outlaw novelties, like those of the ancient Spartans and the modern Albanians. But where new situations developed in spite of them, a frontier region of uncertainty arose in which the magistrates were unguided and unrestrained. Such was the characteristic aspect of justice in the "iron age" in which Hesiod wrote (70o B.c.) . An obvious remedy was to separate the de termining of law from the passing on facts and to leave one function only to magistrates. The function Rome left them was the one Athens took from them. In c. 683 B.C. it created a body of six "determiners of customs" (thesmothetai: cf. the Persian databara), to whom, it may be assumed, the chief magistrates (archon, q.v. polemarch, king) were bound to refer for an au thoritative definition of the "law" that bore on disputes brought before them.
In the 7th century the Greek city-states began putting their laws into writing. The method used was to entrust the task of determining all the laws and issuing them in the form of a code to a single individual described as a "law-determiner" (nomo thetes) . The early codes have all perished except for a few iso lated passages ; so that our direct knowledge of them is slight. But we may say that laws were, on the one hand, instructions issued for the guidance of boards and officials in the performance of their public duties, and, on the other hand, rules of general application containing prohibitions with their attendant penal ties, and specifications as to what should be done in certain con templated acts or situations. Since the rules were linked up for enforcement with definite organs of government, the entire code was arranged under the heads of the competent public authorities.
Greek law-codes were accordingly a blend of public law, in cluding the forms to be observed by priests in public worship, and private law. A pre-condition for their publication was the spread of literacy. Since they were demanded because of the in adequacy of traditions, they naturally appeared first in the col onies and in progressive states. The earliest nomothetes is said to have been Zaleucus of Locri in Magna Graecia. Charondas of Catana was perhaps a younger contemporary. Other famous law-givers were Dracon of Athens (c. 621 B.c.), Pittacus of Mity lene and Philolaus of Corinth. The historical reality of Lycurgus of Sparta, Theseus of Attica, and even Minos of Cnossus has been sustained by some recent writers, and the divinity of Zaleucus, Charondas, and even Draco has been affirmed by others; unwisely in both instances.
Since each city-state had its own law it is apparent that strictly there was no such thing as Greek law, but only hundreds of local codes. And indeed in the sense in which England developed a common law and France "received" another, there was no possi bility for a common law to arise in Greece, unless it be in the area of the short-lived Athenian empire B.c.). The common law which Greece possessed was simply the law that was common to all its numerous codes. This need not have been inconsiderable. The law given by Zaleucus to Locri was adopted by Sybaris; that given by Charondas to Catana was shared by the other Chalcidian cities in Sicily and Italy, and what is even more remarkable, it was not only drawn on by Thurii, but also used in Mazaca in Cappadocia. None the less cases of migratory codes were exceptional. The unity of Greek law, such as it was, depended rather upon the possession by all Greeks of a common stock of legal principles. This was partly an inheritance from a distant past. The rules governing marriage, right of succession (anchisteia), the disposition of heiresses, adoption—family life in general—were everywhere similar because they were derived from ancient Hellenic ideas. But it was also the outcome of reciprocal borrowing. Commerce in Greece was at all times inter national in part and largely in the hands of metics. The ideas of commercial right and wrong were established in the international ports and on the high seas by a kind of mental and moral barter. They were brought to greater precision by the negotiation of commercial treaties (a $oXa) ; and finally they became so con solidated that Demosthenes (xxxv. 45) could affirm that the laws , governing commercial cases "were everywhere identical." Between the 7th and 4th centuries codes tended to converge. The movement of law had to conform to the general movement in Greece, which was towards greater and greater uniformity. But there was an inevitable relation between laws and the char acter of states; and since for a long time noble or class-states, which had existed generally at the time laws were first codified, persisted in certain parts of Greece, the convergence was at first on two types of law rather than on one—an aristocratic type and a democratic type. The former is well illustrated in the laws of Gortyn in Crete.
As these have reached us, they consist of earlier and later portions, the latter a supplement made at c. 450 B.C. In this collection, especially in its earlier portions, the rules of a class state predominated. A magistrate, unassisted by jurors, judged cases, and there was a special judge for the privileged class. The right to make a will was not recognized. Women inherited as well as men. The penalties for offences varied with personal status. For private seizure of an alleged wrong-doer in advance of trial a fine of r staters was imposed if he was a freeman, one of 5 if he was a slave. Rape of a free man or woman was penalized by 130 staters, rape of an a pe tairos by i o, and of a serf by 5; but if the violator was a slave the penalty was doubled. The number of witnesses required to prove an allegation varied simi larly; five, for example, to convict a free man, three to convict an apetairos, one to convict a serf. In the event of conflict the law defined which witnesses "were nearer," that is, should prevail.
The other type of code emphasized by contrast what the Greeks called isonomia. This meant, in terms of public law, the admis sion of all free-born native adult males to equal share in the assemblies in which sovereign action was taken, and, in terms of private law, the cancelling of all class distinctions. Athens is the classic example of this type; and the influence, power and policy of Athens helped greatly to spread throughout Greece the principles of law for which it itself stood. Historically there was a connection between political and legal equality, and in Athens both were realized finally on a basis of self-government in 507 B.C., after the expulsion of the Peisistratids. But they were not inseparable. In Boeotia, for example, a way was found to reserve participation on equal terms in the sovereign assemblies to citi zens of the middle and upper classes without giving them any rights under private law which all free-born native adults did not also have. Those owning a certain amount of property simply became "councillors" ; and councillors alone were organized for the transaction of public business. For a brief time after the fall of the Four Hundred in 411 B.c. Athens itself adopted this form of isonomia. There the experiment failed politically and was not repeated.
Growth of Law in Athens.—In the centre of Greek law, as we know it, stands the law of Athens. It was first codified by Dracon. The thought then uppermost in the minds of the Athe nians was to fix once for all existing customs. Stability, presumed for the law while it was unwritten, was naturally presumed for the written law also. But, owing, as it seemed, to the rapacity of the rich and the extravagant hopes of the poor, the situation be came so acute within a generation that Solon, archon for the year 594 B.C., on being given the full power of the state to recon cile the warring factions, took the extreme step of issuing a new code of laws. The only part of Dracon's code which he retained unchanged was the law of homicide. The constitutional pro visions, including those regulating judicial procedure, were pro foundly altered, notably by a rule, pregnant with history, author izing appeal from judicial decisions of magistrates to a popular assembly organized as a court (heliaia). All free-born adult males native in Attica were given the public-law rights of isonomia—membership on equal terms in Assembly and heliaia. For classes based on birth Solon substituted classes based on property. These new classes were recognized in the distribution of public offices and services. Were they also recognized in the assessment of legal penalties? There is no conclusive evidence on the point. The spirit of the Solonian constitution was hostile to their maintenance. It struck at the roots of privilege by in cluding wrongs done to citizens individually in the category of wrongs done to the state. In all cases (excepting homicide), which involved more than business settlements, Solon established the right of any citizen whatsoever to appear as public prosecutor.
Solon regarded law-making as an abnormal function of govern ment and he bound the Athenians by oath not to resort to it again for i oo years. This attitude toward it persisted under the Peisis tratids, who preserved Solon's laws while administering them to serve their own ends. Cleisthenes, too, was an extra-constitu tional law-maker. But at some point, not precisely determinable, between the time of Cleisthenes and the downfall of the Four Hundred in 411 B.C., the method of legislating through suspen sion of the constitution in favour of an autocratic nomothetes was abandoned for the more democratic method of vesting the law-giving power in a board of nomothetai; and it was according to the more modern method that the regime of the Five Thou sand was inaugurated in August 41I B.C. and the democratic laws re-enacted on the overthrow of the Thirty and the Ten in 403 B.C. On the latter occasion it proved necessary both to make a general revision of the laws and to issue a new code. The legisla tive work was entrusted to a corps of i ,000 representatives taken from the demes, half by lot and half by popular vote (the nomo thetai) . This body issued the laws, old and new, in the form of drafts paci)ai.) and put them in the hands of a commission of "publishers" (anagrapheis) for editing. This body had them cut on stone slabs in the King's Porch, where also the old code had been inscribed.
Thus far legislation was an occasional and not a regular func tion of government. But this view of it was now abandoned. Athens had henceforth a process by which the laws might be changed annually. It was initiated at the first meeting each year of the Assembly. Votes were then taken on the laws, section by section, to determine whether or not they seemed adequate ; first on the laws concerning the Councils ; secondly, on those classified as general (Kocvoi) ; thirdly, on those relating to the nine archons, and finally on those relating to the other magistrates. For the defence of laws judged inadequate five attorneys were elected; and during the succeeding three weeks anyone who chose might bring forward substitutes for laws under indictment and have them posted on the state bulletin boards. Then, at its third meet ing the Assembly ordered nomothetai to be chosen. The nomo thetai—on one occasion i,00i in number (Dem. xxiv. 27)—were selected from the jurors (dicasts) empanelled for the year. In this particular they resembled a court. Their proceedings, too, were in the form of a trial with pleas by the proponents of changes and counter-pleas by the attorneys for the defendant laws. But since their presiding officers consisted of the identical type of presidency used in the Assembly, they also resembled the sovereign political body. Their decisions, too, were reached as in an Assembly and not in a court—by open vote. Unlike a decree a law could be enacted only after due notice had been given and the public interests had been defended by counsel. It emanated from a body carefully selected to ensure the represen tation of every section of the population, not, like a decree, from the group of citizens who chanced to be present at a particular meeting of the Assembly. The nomothetai were dicasts; but they rendered a political not a judicial verdict. Hence unlike the ac tion of a court, it was subject to suspension, like the action of the Assembly, if indicted for illegality, and became definitely binding only when reaffirmed by a regular tribunal.
The code was a thing of many complex interrelations. An alteration at one point might produce unsuspected trouble at others. The officials who had most to do with law-enforcement were the thesmothetai. It was therefore made incumbent upon them to examine the code carefully in the course of their administration, and, if they found in it obsolete articles not so designated, or articles which contradicted or duplicated one an other, to put on the bulletin boards the editorial revisions they deemed necessary. For the validation of these clerical correc tions an ordinary meeting of the Assembly was competent, but it was held constructively to have been a session of nomothetai. A much less innocuous participation of the Assembly in legisla tion is demonstrated by documents for the period following c. 36o B.C. Impeded in action it wished to take by lack of legal authority, the Assembly passed votes requiring the chairmen and president who should preside at the first session of nomothetai to present for consideration the additions to the laws it desired. This may have led to an over-weakening of constitutional law (Dem. xx. 89 sqq.); but so long as this was fused with private law there was no alternative. The magistrates' courts, being in competent to render judicial decisions except in trifles, were incapable of developing a ius honorarium. Neither could law in Athens be court-made, since every verdict of the dicasts was independent of every other verdict.
Until the age of Pericles, the Athenians entrusted the function of acting as "guardian of the laws" to the Areopagus. Then they did away with it as being derogatory to popular sovereignty. Yet the laws had to be safeguarded, not perhaps against the demos itself—for like the king the demos could do no wrong—but against individuals in Council and Assembly who should mislead it. The remedy applied was to hold all makers of motions at meetings of these bodies liable to public actions for illegality fypaOai irapavo,utov), thus placing the protection of the laws in the large category of public interests for the vindication of which each and every citizen in good standing might assume the role of state prosecutor. The test of illegality was that the mo tion should seek to accomplish something prohibited by the laws. There was, however, nothing illegal in persuading the Assembly to use decrees (pseprvismata) to fill gaps in the laws; and in the Sth century, when legislation was still a quasi-revolutionary ac tivity, this course was frequently followed. It was by means of decrees primarily that law was built up for the empire. The con stitution of the council itself was extended by decree. New magistracies were created in this way. Decrees were therefore often indistinguishable from laws in subject matter, and since the courts were required to take account of them both, they might have precisely the same force as laws. Yet there was a fundamental difference between the two. A decree could be abro gated by a new decree without ceremony, whereas a law stood until annulled by further legislation. The revisions of 41 I–IO and 403 B.c. must have conferred the superior status of laws on many rules which theretofore had rested on decrees alone ; and thence forth the Athenians lessened the need for decrees to trespass on the province of laws by providing for annual legislation. Natur ally they made the proposers of new laws liable to the same form of public action as the proposers of new decrees. And indeed they went even farther than this ; they made them liable to pub lic prosecution if the laws originated by them were found within a year to be inexpedient. After the twelve months had expired, laws, like decrees, alone were indictable, not their authors.
Official transcripts of the laws were ordered to be made on stone tablets in 410-04 B.C. ; and to this measure we owe the preservation, though in a very fragmentary condition, of Dracon's law on involuntary homicide (I.G. I. I Is), Cleisthenes' law on the Council of the Five Hundred (I.G. I. 114), and a law of un certain date governing grants of maintenance in the prutaneion (I.G. I. 77). On the occasion of the revision made in 403 B.C. a new text was issued in the Ionic alphabet then officially adopted. The new laws passed during the following 8o years were attached to the code in the form of the minutes of the sessions of nomo thetai in which they originated, and like the laws of Rome they were regularly cited by the names of their proposers. A small number of these novellae has come into our possession textually, three in inscriptions (I.G. II. 333, 244). Most of the laws that have reached us, whether in whole or in part or in para phrase, were entered by ancient grammarians at points where they seemed to be called for in the speeches of the Attic orators.
These and others:culled from lexicographers and scholiasts and elsewhere, are collected in Telfy's Corpus furls Attici (Pest and Leipzig, 1868). The descriptive portion of Aristotle's Constitu tion of the Athenians (§§4 2-70) , composed between 327 and 323 B.C. was based directly on the code of that epoch. Though it is confined to an exposition of public law and has reached us without its final portions, it is by far the most extensive abstract of the Athenian laws that we possess.
So far as we can judge from the specimens preserved, the laws of Athens were drafted in simple language. Some ancient phrases survived in their older portions. In style they resembled the laws of the Twelve Tables rather than the matured legislation of republican Rome. No attempt was made in them completely, to define parties or objects concerned by the use of synonymous terms and to adhere rigorously thereafter to the definitions once made—a defect that opened the way to subterfuge in litigation (Lysias, x. i s), but was less troublesome in the equitable proc esses of the dicastic courts than it would have been in courts guided by strict law. The laws dealt with concrete situations that had arisen in actual experience. Hence they were adequate through being numerous and detailed rather than through em bodying principles that were capable of wide application. The distinctions between the hundred and more actions open to suitors were drawn with acuteness, if not with over-subtlety. The rules of procedure were "at times casual and incomplete (set practice being taken for granted), at times minutely specific." Penalties for "criminal" offences were remarkable for their se verity--a reflex doubtless of the passion and intensity of their political life; they included death (with circumstances of atro cious cruelty in the case of common malefactors) ; fines that were often confiscatory; total or partial disfranchisement; and de tention, but not imprisonment. The code was thought not to measure up to the standards of contemporary jurisprudence; but when it was refashioned by Demetrius of Phalerum to give effect to the Peripatetic theory of society (317 B.e.), the Athenians would have none of it. On the expulsion of the unpopular nomo thetes—his office was an anachronism, no less than many of his laws—they revived the "laws of Solon," revised them to suit the altered circumstances and republished them (307-304 B.e.) .
The task of abstracting the law of Athens (or of Greece) from the instructions of magistrates, and setting it out under appropri ate headings for comparison with Roman and other systems of law, has been undertaken by modern scholars, notably lawyers. But from the nature of the materials, which also precludes any attempt to summarize the laws under their original headings, we must content ourselves here with citing the works by Beauchet, Partsch, Mitteis, Vinogradoff and Weiss mentioned in the bibliog raphy.
Judicial System of Athens in the 4th Century.—Except for (I) a special group of public actions, itself divisible into sub groups, suits fell into two general categories : (2) dikai, or private suits, and (3) graphai, or public suits.
I. The special actions may be thought of as a residuum of the means in use before Solon for dealing with crimes against the state. The small fines (iirc33oXai) imposable by administrative officials upon citizens who disputed their authority represented another such residuum. Their common characteristic is that the council and assembly or the magistrates were competent to punish, if they chose, without observing the regular forms of judicial pro cedure. The most striking example of executive justice is apagoge (with its variants endeixis and hyphegesis), the arrest and deten tion of malefactors (KaKOVpyoc, e.g., thieves) caught in the act or of persons (exiles, state debtors and the like) caught exercising rights of which they had been legally deprived. If the prisoners admitted their guilt the "eleven" were authorized to inflict sum marily the penalties prescribed, ordinarily death; otherwise, they, or exceptionally the thesmotlaetai, had to conduct the case as a public action.
By far the most important of these special forms was impeach ment (EiaayyeMa). Typically it may be described as the process designed to cover acts that may be loosely defined as treason. The offences were at first left indeterminate, but eventually a law was elaborated including among them, specifically, treason and conspiracy to commit treason ; betrayal of a city, ship, army or fleet ; unauthorized traffic with an enemy, residence in his country or service in his army ; the acceptance by a public man of bribes as a consideration for misleading the demos. From actions of this type many causes celebres arose, notably the trial of the eight gen erals who commanded in the battle of Arginusae. The denuncia tion might be presented to either the council or the assembly and accepted or rejected by them. If accepted, the defendant was arrested and if the matter was grave he was kept in prison pend ing trial. The council drew up the definite proposal for action, in the one instance on its own initiative, in the other at the request of the assembly. If the penalty deemed sufficient was a fine of Soo drachmae or less, the council was fully competent to impose it. Otherwise it transmitted its proposal, through the agency of the thesmothetai, to the Assembly, which had thereupon to decide either to try the case itself, which it did by the process used in enacting a decree, or, as was more usual, to hand it over to a dicastery. The penalty was ordinarily death with confiscation of property. The dead bodies of traitors were cast beyond the boundaries of Attica. "Presentment" (irpoj3oXii) was somewhat similar to impeachment. Actions regarding contraband (ckaaes ) and wrongful possession of public property ( ahoy pa /n) were also special in that those who prosecuted them paid court fees, as in civil suits, but received half or three-fourths of the penalty. This was the prime source of sycophancy (the trade of informing).
(a.) Because of its antiquity the law of homicide contained a relic of the primitive practice of self-help. It placed the obliga tion of seeking redress for homicide upon the kinsmen of the slain man—upon his father, brothers and sons as prosecutors, and upon his cousins, sons of cousins, male relatives by marriage and blood-brothers (phratores) as co-prosecutors. A man belonging to the inner group alone had the right to bring action ; or, more prob ably, his was the prior right, since in cases where it was permis sible to arrange a settlement (Weals), even the blood-brothers were competent to act if none of the nearer relatives existed. Dracon had recognized the essential difference that exists between wilful murder and other kinds of homicide ; but it was a distinction that did not permit any discrimination in the religious ritual of the occasion; the king-archon presided and voted at all trials, the courts sat in holy places in the open air, and pending trial the accused was excluded from the agora and all shrines and re ligious ceremonies, but not imprisoned. When the offence charged was wilful murder, or wounding or poisoning or arson with intent to kill, and the victim was an Athenian, the Areopagus as a whole formed the court, it sat on Ares' Hill, and the penalty, when life was taken, was death ; otherwise exile. Other kinds of homicide were regarded as of lesser seriousness, and a board of judges called Ephetai—originally a commission, perhaps, of 51 Areopagites, later a panel of dicasts—constituted the tribunal. The place in which the trial was held varied with the nature of the defence. To the Palladium belonged cases of involuntary homicide and instiga tion thereto, the penalty being temporary exile ; also suits for kill ing non-citizens—slaves, metics, and foreigners. To the Delphin ium belonged cases of justifiable killing, and to the Phreatto, accu sations against citizens already in exile. The defendant pleaded from a boat anchored off the shore so as not to pollute the country by setting foot on it. In the Prytaneum the king-archon had the phulobasileis, instead of the Areopagus or the Eplietai, associated with him as judges, and to it belonged trials which were purely ceremonial in character—where the "doer" was unknown or an animal or, as in the obsolete English law of "deodands," something inanimate. The objects found guilty were cast beyond the frontiers.
(b.) Civil suits could be brought only by the parties interested or their legal representatives. Their entry was governed by the general principle of Athenian law that magistrates should accept cases arising in the sphere of their own administration ; but the principle was inapplicable to magistrates whose duties were mainly or wholly judicial. Of these the thesmothetai were comparatively unimportant in civil suits. The other two—the Introducers and the Forty—received civil suits only. The competence of the Intro ducers was limited to suits which by reason of their special urgency had to be brought to trial within a month of the filing of the com plaint (6ucai Eµµflvoc) ; but not all such suits came to them. Those that they received were actions arising from non-restitution of dowry, from loans that were in the nature of an accommodation— where the rate of interest was low (i 2% or less) or the security poor—from transactions with business associates, partners, or bankers, and from trierarchies. Also actions for assault. For each pair of pliulae there was one Introducer.
Of the Forty, four acted for each phule. If the object of litiga tion was worth i o drachmae or less they settled it with full author ity. Otherwise they referred it to a public arbitrator (bcaLTnTits ), whose business was first of all to reconcile the parties. Failing in this he heard the case. If his decision was accepted by both par ties it was final. But if the loser chose to appeal from it, the arbi trator sealed up in caskets all the papers submitted at the hearing, those of each litigant separately, and referred the case back to the section of the Forty whence it came. This had then to take it to a public court, where the usual course was followed.
It was characteristic of civil-suits that the winner had himself to obtain the rights awarded ; but if he encountered resistance he could bring a suit of ejectment. The feature of this class of actions that calls for special notice was the provision for compulsory arbitration. It applied to all civil suits that came before the Forty either directly, or indirectly from other magistrates. Excepting the monthly suits, which would not brook delay, most disputes about property, sales, leases, contracts, debts, etc., implicating either citizens (office-holders and non-office-holders alike) or metics and other privileged aliens had to be submitted to arbitra tion. The task of arbitrating was reserved exclusively to the last class of citizens on the roll of those liable for military service ; in other words, the Athenians in their 6oth year. The appointment of the arbitrator for each case was made by lot and the arbitrator on whom the lot fell could not decline to serve, unless he were holding office or absent from the country, without incurring the penalty of disfranchisement, to which he was also liable, on com plaint to the whole body of arbitrators, if he abused his position. The state had more confidence in the average capacity of its sex agenarians than it had in their public spirit and integrity. But what of the litigants? That they would respect the findings of an obviously incompetent arbitrator, however unbiassed he might be, was not to be expected. The essence of the system was "that in a large number of disputes the constitution did not compel two quiet citizens to face the ordeal of a trial in court, but provided a cheap and simple and reasonable means of getting justice" (Wyse).
3. Graphai.—The judicial vindication of a public interest was the object of these suits. They could be entered by any citizen in good standing. He might be himself the aggrieved party, but in that event, even if the award was pecuniary, it fell to the state, which in all cases exacted the penalty. As in private suits, so in public, the magistrates were confined to a passive role : before taking action they had to wait till private individuals filed corn plaints with them. The principle that executive competence deter mined judicial competence also prevailed.
Accordingly the generals and the other army officers were alone competent to receive suits for infractions of military duty. To the archon and the polemarch came suits (private or public as the case demanded) concerning matters of family—the rights of widows, orphans, minors and heiresses, the management and division of family property, the appointment of guardians or patrons, etc.—to the archon, if they involved citizens ; to the pole march, if they involved metics and other privileged aliens. The king-archon received suits concerning religious matters—impiety, hereditary priesthoods, the share of gene and priests in sacrificial offerings and the like. Since over roo species of suits are known, divided about equally between dikai and graphai, it is impossible here to give a complete classification of suits and magistrates. But the role of the thesmothetai calls for special comment. The six men constituting this board had duties to perform in connection both with making and administering the law which make it almost unintelligible that they should have been elected by lot (after B.c.) and changed every year. They acted as intermediaries of the Council and the Assembly in cases which went to the courts from either of these bodies; and they were alone competent to receive indictments of decrees and laws and their authors, as well as of officials who presided at sessions of the deliberative and legis lative assemblies. They also received actions against the generals. Besides offences against the state many offences against society were within their competence—theft, adultery, bribery and cor ruption of officials, councillors, and dicasts; usurpation of rights of citizenship, sycophancy, falsification or suppression of records, etc. Their civil suits were incidental.
The correct entry of suits required no small acquaintance with law on the part of average citizens, but so did the entire judicial system. The magistrates who accepted entries, with unimportant exceptions, were always new to their office and possessed neither more nor less legal training than litigants. All litigants had to be their own attorneys. The state depended wholly upon private initiative to set the judicial processes in motion. What was every body's business proved to be the business of a low rather than a high type of citizen; so that the community was harassed by black mailing and sycophants. Suits were as thick in Athens as leaves in Vallombrosa. Instead of employing fisticuffs or duelling or lawyers the Athenians went to law. It has been said that they were a nation of lawyers ; but it has been also said that they were a nation without lawyers. And both statements are true.
The duty of assessing the evidence and rendering the verdict devolved upon tribunals on which sat jurors (Areopagites, ephetai, dicasts) ranging in number from 201 to 2,500 and exceptionally to 6,000. The Areopagus was a fixed body of about 220 members made up of ex-archons ; and cases of wilful murder came to it automatically. Seeing that the archons were elected by lot with regard to local distribution, the Areopagites were simply typical Athenians ; but they entered the tribunal fresh from an exceptional experience with the whole judicial system, and as the years passed they acquired a close knowledge of the law and physiognomy of murder. Hence their judgments enjoyed in marked degree general respect.
The king-archon was the only magistrate for whom the tribunal was fixed in advance. The rest had to apply to the thesmothetai, who assigned panels of dicasts to them by lot, 201 or 401 for ordinary civil cases, 501 or i,00i for ordinary public cases. The thesmothetai determined on which one of the days fixed by them for sessions each magistrate should have his case tried and in which court-house the trial should be held. The selection of the panel of dicasts for each court-house was made on the day of the trial by a most intricate process of lot (Aristotle, Constitution of the Athenians, §63 sqq.). Its objects were fivefold; to ensure (1) that each individual in each of the ten sections into which the heli aia was divided should have a like chance to serve; (2) that every panel, containing, as it must, a like number of dicasts from each phule, should reproduce in miniature the whole people for which constructively it was to act; (3) that no one whatsoever should know in advance of the entrance of the dicasts into the court house who was to judge any particular case ; (4) that no one should impersonate the dicasts selected; (5) that dicasts who failed to turn up in the court-house should not receive their daily stipend of 3 obols. There was no mistaking the intention of the Athenians : they desired every panel to speak with the voice of all Athens, uninfluenced by bribery, intimidation, or collusion. And they got their wish.
The sorting of the evidence was made at a preliminary hearing (anakrisis). There the elements of the proof and disproof were assembled—the statements under oath of the parties, the deposi tions of witnesses, laws, decrees, contracts, and the like. The testimony of slaves was admissible only when elicited by torture; that of women and minors was admissible only in murder cases, and that of the parties to the suit was not admissible at all. Hear say evidence was excluded. The cross-examination of witnesses was not permitted. Till 403 B.C. the pleadings were oral, but written pleadings, found necessary in cases appealed under the system of public arbitration, were adopted generally early in the 4th century. There were permissible ways of barring suits by contesting their admissibility. A civil suit might be dropped at any time. The prosecutor, however, must proceed with a public suit once it was instituted or pay a fine of i,000 drachmae and for feit the right to bring further actions, and he incurred the same penalty if he failed to secure one-fifth of the dicasts' votes. Court fees were collected in civil suits. Public suits more than paid for themselves by fines and confiscations. There were careful rules to govern default.
The presidency of the tribunal belonged either to the thesmo thetai or ordinarily, to the magistrate who was connected with the suit in its earlier stages. The president had to see that the trial followed the course laid down by law, and, since his legal training was no greater than that of the litigants and dicasts, he had no claim or right to intervene further. Precedents having no legal standing, no one was needed to assess their bearing. The dicasts were in fact under oath to disregard them and to make decisions solely on the evidence and arguments presented, giving effect to laws and decrees where these sufficed, otherwise to their own sense of right. The proceedings in court consisted essentially of argu ments addressed to the dicasts by the plaintiff and the defendant personally and by friends (not paid professional advocates) who appeared to support either party with their reputation and court experience. At the proper places the statements and depositions contained in the dossier of the preliminary hearing were read by the clerk of the court and acknowledged under oath by the litigants and the witnesses. The law authorized actions to compel the ap pearance of witnesses and the production by third parties of rele vant documents, which, too, were read from the dossier by the clerk. A time, greater in public than in private suits, was set for the entire argument. Half of it was given to each party, and the water-clock (klepsudra), by which it was apportioned, was stopped during the reading. An inarticulate litigant would normally leave the burden of the argument to his supporters, and the practice was general for the main speeches to be prepared by professional speech-writers (logographoi), whose art consisted in no small de gree in concealing their handiwork. If we except the disreputable tribe of sycophants, from whom speakers took special pains to distinguish themselves, this was the only professional class pro duced by the administration of law in Athens. They were accom plished pleaders, versed in the intricacies and pitfalls of the law, adepts in appealing to the prejudices of the dicasts ; and since some of them were active in instituting public suits, they might come very near to being lawyers.
Once the arguments were concluded the dicasts voted, without discussion, either to acquit or to condemn. The utmost care was taken to preserve secrecy and honesty in the balloting. If the vote was against the defendant, but the bare decision did not suffice to dispose of the case, an argument upon the penalty ensued, at the end of which the dicasts balloted to decide whose estimate, the winner's or the loser's, should be accepted. The court was power less to substitute an estimate of its own, but a compromise could be reached if the litigants chose to meet each other half way in their estimates. An appeal from the verdict was possible only in cases of non-culpable default; or on the ground of perjury, and then only if notice to contest the verdict on this score were given before the dicasts voted.
We do not possess the dossier of a single trial. The opposing arguments have seldom reached us. The speeches of the Attic orators were published as masterpieces of eloquence. They do not form a case-book of Athenian law. What they reveal is the sort of argument to which the dicasts were thought to be respon sive. In public cases appeals were made to their ignorance, prej udices and cupidity, which, if successful, must have made their verdicts travesties of justice; and we know that in times of great political excitement they succeeded all too frequently. But the courts were a political as well as a judicial body. They were there to give the coup de grace to discredited politicians; they were the heirs of ostracism. In private cases the speeches were of ten such as might be addressed to modern juries; and we have little reason to impugn the verdicts. The vicious tendencies of the judi cial system are obvious; the contamination of justice by politics; the weakening of responsibility through its diffusion among so many jurors; the rendering of unlike decisions in like cases. But the correctives were also present ; the unexampled familiarity of common man with law and legal practice ; and their unique experi ence in taking collective action in large bodies. History contains no other instance of justice so thoroughly organized to accord with the principles of radical democracy. The Athenians were so sit uated that they did not feel the need either of delegating their government to picked representatives or of entrusting their justice to experts specialized in law. The Romans enshrined their justice in their great system and profession of the law, and, thus safe guarded in their private rights, left their government to autocrats.