The Greek City and its Institutions

PRINCIPLES

BETTERperhaps than any other institution the judicial system reveals that perfect equilibrium between the power of the State and the liberty of the individual which was the ideal of Athens of the fifth century.

The people was the sovereign redresser of wrongs, possessing in theory absolute power over the life and property of all. Recall the declaration of Philoeleon in the Wasps of Aristophanes—as soon as he enters the Heliæa he lifts up his head and, swelling with pride, exclaims: “Is not my power as great as that of any king ?... Is not my authority equal to that of Zeus?”¹ In fact the popular courts of the Heliæa filled a prominent place in the city. It was the inevitable consequence of the advance made by democratic ideas. Previously, justice, even when it ceased to be the monopoly of the Eupatridæ, had had for organs the Areopagus and the magistrates, and even when Solon had instituted the Heliæa he had only assigned to it an appellate jurisdiction (ephesis) which gave it the right of supervising the judgments of the magistrates, but not those of the Areopagus. It was not until the reform of 462 that the people definitively acquired the judicial prerogative which corresponded to an historical necessity. At the same time as the powers of the Areopagus were broken the magistrates saw themselves reduced to a hegemonia, that is to a simple delegation in virtue of which they received suits, proceeded to investigation and presided over the competent tribunals. There was henceforth no intermediary between popular sovereignty and justiciables.

But the rights of the individual remained and were only the more surely safeguarded as a result. It seemed that each citizen could only enjoy complete security in the exercise of his rights if the whole people ensured them to him by protecting him with its omnipotence. Individualism was carried to such a point that in cases where one or other of the parties or both of them consisted of a number of individuals the action had to be brought by each of the plaintiffs against each of the defendants.2 Moreover justice never took the initiative among the Athenians, even in criminal cases. There was no magistrate to initiate an action, no court of arraignment, no public prosecutor to uphold the cause of society. In principle it was for the injured person or his lawful representative to bring the suit, to issue the summons and to put his case before the court without the assistance of a lawyer. Even a murderer might go unpunished if no relative came forward as the champion of the victim.³ But when it was a case of bringing an accusation in respect of an act which was prejudicial to the common interest, any citizen (ό βονλόμβνος) might consider himself injured and come to the aid of the law. Thus two categories of suits were distinguished: private suits (dikai) and public suits (graphai). In the case of private suits the two parties deposited the expenses of justice, the prytaneia, as pœna temere litigandi; the plaintiff had always the right of withdrawal; if he won the day he might obtain in addition to the object in litigation, an indemnity, but he himself was responsible for execution. In the case of public actions the accuser alone was responsible for the expenses of justice which were then called parastasis, and if he withdrew or failed to obtain a fifth of the votes he had to pay a fine of a thousand drachmas; the condemned was liable to a penalty either corporal, infamous or pecuniary, fines being appropriated for the benefit of the city. But in both cases the struggle, the άγων, was between the litigants: the magistrate in charge only assembled the declarations formulated and the proofs furnished by the antagonists; the heliasts were only jurors who played the part of umpires in the debates.

Even extraordinary prosecutions were largely set in motion by private initiative. We have seen the part it played in political actions brought before the Assembly or the Council by way of eisangelia or of probole4 In cases of flagrant or notorious misdemeanour, notably when the accused was a malefactor of low birth or a foreigner who might secretly escape, the citizens had recourse to apagoge₉ ephegesis₉ or endeixis; that is they might arrest the culprit and drag him before a magistrate, or conduct the magistrate to the place where he was to proceed to his arrest, or denounce him in order that the competent magistrate might take steps in the matter. In these proceedings where habeas corpus was not relevant, the preliminary citation was not demanded; it was a case for summary judgment or preventive detention, which might be suspended if three citizen guarantors were furnished. Finally, in cases where material damage was caused to the State by infringement of the laws concerning commerce, customs or mines, it was again private individuals who came to the fore by means of the phasis₉ and, to induce them to do so, the State made condemnations profitable to them: they received as bounty, in the fifth century three quarters, in the fourth century a half of the fine imposed.⁵

The principle of popular sovereignty was thus distorted in judicial matters because there the survivals of the past were, particularly tenacious. We shall observe this again in the organization and procedure of the tribunals.

TRIBUNALS AND PROCEDURE

The crime of homicide, on account of the taint which was attached to the guilty man and which threatened to infect the whole city, always retained the character of an offence against men and against the gods. Grave though it was action could not be taken by any citizen by means of a graphe, but only by the nearest relatives of the dead man by means of a dike. Nor could it be judged by ordinary citizens, but only by the semi-religious tribunals which were presided over by the head of the national cults, the king.

Of these ancient tribunals the most important was that which sat on the hill of Ares, near the cave consecrated to the Eumenides: the Boule of the Areopagus. In spite of the fact that it was deprived in 462 of its political powers it remained a great name and preserved the prestige of its glorious past. Always composed of the ex-archons it was regarded through the centuries as “the most venerable and the most just of tribunals.”6 Its jurisdiction extended to the crimes of premeditated murder (φόνος εκούσιος), violence done with intent to murder, the burning of an inhabited house, and poisoning. The punishments which it inflicted were: death in case of murder, banishment and confiscation in case of violence.⁷ Beneath the Areopagus were the tribunals composed, in accordance with the legislation of Draco, of fifty-one ephetai. There were three of these. The Palladion had competence in matter of manslaughter (φόνος ακούσιος) and incitement to murder (βούλευσις), if the victim were a citizen, in matter of murder intentional or unintentional in the case of a metic, a foreigner or a slave. It pronounced the penalty of exile for a term of years without confiscation; but the condemned man might not return to Attica save with the authorization of the relatives of the dead man.⁸ The Delphinion had jurisdiction if the king, responsible for making investigation, decided that the homicide was excusable or legitimate (φόνος δίκαιος), which usually happened if the victim had been killed while contesting in the games, or in war by mistake, or if discovered in the act of illicit relations with the wife, the mother, the sister, the daughter or the concubine of the murderer.⁹ At Phreattys on the sea-coast were judged those who, having been temporarily exiled for unpremeditated homicide, committed a premeditated murder. As they were not yet purged of their first impurity and access to Attic territory was prohibited to them they presented their defence from a boat, whilst their judges sat on the bank. If they were acquitted they returned into exile; if they were condemned they suffered capital punishment.¹⁰ Finally, a fifth tribunal for capital offences was constituted by the king and the kings of the tribes sitting before the Prytaneum. Its function, even more than its constitution, attests to a very distant origin. It condemned by default the unknown murderer and solemnly judged any animal or any object of stone, iron or wood which had caused the death of a man, before purifying the territory by transporting it or throwing it beyond the frontiers.

The whole procedure in use in capital charges was strikingly archaic. If the victim had granted pardon before dying no one could bring any action against the murderer; if not, the champions of the victims were, according to the law of Draco, the father, the brother and the sons, in default of these, first cousins and second cousins, and in the third rank ten members of the phratry chosen by the ephetai. The first two groups might, as in the time of private vengeance, compound with the murderer (αϊδεσπ) and free him from subsequent prosecution in return for a sum of money; but for the transaction to be valid it had to be accepted unanimously by all the kinsmen recognized by law. If not, the action was pursued by the kinsmen of the first group assisted by those of the second and, further, by the kindred by marriage, brothers-in-law and fathers-in-law, and by the members of the phratry. The metic was represented by his patron, his prostates; the slave by his master.11

The action commenced with a dramatic ceremony: the kinsmen assembled around the dead man and planted a lance on the sepulchral mound: this was the declaration of war. It evoked a proclamation from the king (the πρόρρησή) which excluded the accused from sacred places and even from the agora until the day of judgment:¹² this was excommunication. Inquiry was made in three sessions, at which both parties were heard, held at intervals of a month.¹³ The trial was held in the open air in order that the judges and the plaintiff might escape infection from the impurity of the defendant.¹⁴ On that day the king removed his crown.¹⁵ Before all the hearings a sacrifice was offered, in which a ram, a pig and a bull were immolated; before the altar both parties solemnly took a declaratory oath upon the facts of the case.16 On the Areopagus they stood upon two blocks of stone, the “rock of offence” (λίθος ύβρεως) and the “ rock of implacability “ (λίθος αναώείας).¹⁷ They had each the right of speaking twice. After his first pleading the accused might still escape condemnation by a voluntary exile and the abandonment of his goods.¹⁸ If the votes were equally divided between the accusation and the defence, the accused had the benefit of what was called the vote of Athena (ψήφος ‘Αθήνας), in remembrance of the vote which, according to tradition, Athena had given in favour of Orestes.¹⁹ On his way down from the hill of Ares the acquitted went to the cave of the Eumenides to appease and give thanks to the goddesses by a sacrifice.²⁰ As a general rule in order to be absolved from the suspensive excommunication which accusation of homicide involved and which was prolonged by temporary exile, it was necessary to submit to the expiations and the purifications fixed by the ritual and the subtle casuistry of the exegetai.²¹

All the cases which did not belong to the courts for capital charges in principle formed part of popular jurisdiction. But this was a tremendous task. The reform of Ephialtes had already freed the magistrates and the Areopagus from much litigation when the increase of commercial disputes, the development of the empire and the restrictions placed on the jurisdiction of subject cities made Athens the city of law-suits. It was imperative that the ordinary tribunals should be relieved by freeing them from the hearing of trifling affairs.

Pisistratus had previously created judges of the demes to hear the cases of litigants from the country;²² but the institution established by the tyrant had disappeared. It was re-established in 453-2.23 Thirty itinerant judges, three from each tribe, travelled round, probably each in his trittys, to try in first and final instance disputes which did not involve more than ten drachmas.²⁴ Civil suits beyond that limit they transmitted to the public arbitrators, the diaitetai.²⁵

All Athenians of sixty and over, on being removed from the military lists, had to enroll themselves on those of the diaitetai to exercise the office for a year.²⁶ Anyone who evaded that obligation was condemned to atimia unless he held a public office or was detained abroad.²⁷ The diaitetai were divided into ten sections, one for each tribe,²⁸ and each section had a fixed seat which was a tribunal or a temple.²⁹ The jurisdiction of the arbitrators was exercised by the judges of the tribes, either directly, when they found themselves faced with a case which was outside their competence, or indirectly, when they served as intermediaries to magistrates to whom appeal had been made for a private action of moderate importance.³⁰ The judges of the tribes divided suits among the diaitetai by lot.³¹ This procedure of arbitration offered great advantages to justiciables—it was swift and summary: the arbitrator was responsible for both the investigation and the judgment:³² it was cheap: each of the parties paid a small fee, a drachma, and the same amount as a deposit.³³ When he had been informed of the facts of the case the arbitrator attempted to effect a reconciliation. If he did not succeed he gave his decision, strengthened by a solemn oath.³⁴ If both parties accepted it the matter was at an end, but if one of them was not willing to abide by it he appealed to the tribunal of the heliasts. Moreover if he thought that he had been unfairly dealt with by the arbitrator he could bring an action of eisangelia before the whole body of arbitrators and secure his condemnation, subject to appeal, to an atimia which was equivalent to a revocation.³⁵

In spite of the relief which the judges of the demes and the diaitetai gave them the popular tribunals were overwhelmed with work.36 For a century and a half the main preoccupation of Athenian democracy was to make the judicial administration adequate for the discharge of its duties. In this work, bristling with difficulties, it showed remarkable qualities of perseverance and ingenuity.

Every Athenian was able to attain to the dignity of heliast if he had reached thirty years of age and if he was in full possession of civic rights, that is he must not be a public debtor.³⁷ Anyone who sat in defiance of this law was prosecuted by the summary procedure of endeixis; he was liable to penalties determinable at the discretion of the judges, and, if a fine were inflicted, he was imprisoned until he had paid the debt which had caused his arraignment and the fine added by the tribunals.³⁸ The State required still further guarantees. Every year the new heliasts had to take an oath on the hill of Ardettos.³⁹ This oath is only known to us for the fourth century; but it is certain that the solemn formality had long been in use. In the following passage are the most important promises made by the judges:⁴⁰

“ I will vote according to the laws and the decrees of the Athenian people and the Boule of the Five Hundred. I will vote neither for a tyrant nor for an oligarch, and, if the power of the Athenian people is attacked, and if words are spoken or a vote is taken against it, I will not give my consent. I will support neither the cancelling of individual debts nor the partitioning of the lands and the houses of the Athenians. I will not recall the exiled nor those condemned to death, nor will I pronounce against those who dwell in the land banishment contrary to the established laws and the decrees of the Athenian people and the Council ; I will not do it myself and I will prevent all others from doing it. I will not receive presents as heliast, neither I myself nor another for me, man or woman, with my knowledge, without deception or intrigue of any sort. I will hear the accuser and the accused with complete impartiality, and I will give my vote upon the precise matter in question. If I forswear myself, may I perish, I and my household ; if I am faithful to my oath may I prosper 1”

In the fifth century the number of the heliasts was fixed at six thousand.⁴¹ It was the number which in public law stood for the unanimity of the people, as the procedure of the plenary Assembly indicates, and it must not be forgotten that in many cities the name of Heliæa never ceased to be that of the Assembly. The six thousand judges were drawn by lot from the qualified citizens who presented themselves.42 Each tribe furnished six hundred, taken probably from the demes in proportion to the number of inhabitants.⁴³ The drawing of lots was carried out by the nine archons and their secretary, each for his own tribe.⁴⁴

After the taking of the oath the judges were divided by lot among the different tribunals and, consequently, among the magistrates who presided over them.⁴⁵ It was arranged in such a way that, in each of the sections, the ten tribes had an equal representation.⁴⁶ The name of dikasterion, therefore, signified both a tribunal and its personnel,⁴⁷ whence the name of dikastai usually given to the judges; the name of heliast was more specially applied to those dikastai who assembled on the agora, in the ancient Heliæa of the thesmothetai.⁴⁸ Thus the judges knew in what tribunal they were to sit and to what magistrate they were attached for the whole year:⁴⁹ one in the Heliæa under the presidency of the thesmothetai; another at the tribunal “near the walls,” with the archon; some in the ⁵⁰ parabyston “ with the Eleven; others in the new tribunal or in the Odeum.⁵¹ They therefore knew in advance what matters would be submitted to them, and litigants also were aware of this. One can imagine the inconveniences of such a system. A mitigating factor and one which discouraged corruption was the large number of judges who constituted a dikasterion.⁵² There were not, it is true, six hundred, for one must take into account the absentees; but there were regularly five hundred or rather, according to the general rule which provided against equal division of votes, five hundred and one. In important cases, especially in political ones, several sections were united to form a tribunal; for instance two were necessary for an affair of eisangelia.53 But we have even more striking examples: Pericles appeared before fifteen hundred and one judges;⁵⁴ in 404 the Assembly decreed that certain citizens accused of conspiracy against the safety of the State should be cited before a tribunal of two thousand members ;⁵⁵ Andocides even mentions an action for illegality tried by six thousand dikastai, that is by the Heliæa combining all the sections.⁵⁶

It is obvious that special measures must have been necessary to fill the tribunals. Since there were practically no vacations save feast days and assembly days,⁵⁷ they functioned perhaps about three hundred days in the year.⁵⁸ It was impossible to make presence at the sessions obligatory, for then no one would have enrolled himself. In order to attract the dikastai the only course to be adopted in a democracy was the opposite of that adopted in oligarchic cities: instead of a fine on absentees an indemnity for those present.⁵⁹ So long as democracy was unwilling to renounce its judicial sovereignty, the misthos dikastikos was an absolute necessity. It was deducted by the kolacretai, responsible for its distribution, from judicial costs and fines.⁶⁰ The payment of two obols, and, after 425, three, was only equivalent to the earnings of half a working day, to the cost of the maintenance of one person. It was not enough to induce country dwellers, when they lived at a distance, to leave their fields and undertake a long journey in order to settle the petty differences of unknown fellow citizens : indeed, even to settle their own itinerant justices had to be sent out. The dikastai, therefore, were for the most part town dwellers. But the rich who had other things to do and were not to be tempted by the bait of two or three obols held aloof.⁶¹ Hence the great majority of the dikastai was furnished by the middle and lower classes of the town, the port and the suburbs. Some found in the misthos an appreciable addition to small incomes; others the means of profitably employing a workless day. Philocleon sees in it the means of adding a dainty dish to the menu for dinner; his mouth waters in anticipation of the soufflé which his wife will serve and the kisses which his daughter will bestow on dear “ papa.”62 The old men in particular were not unready to add something to the family income: those heliasts who, in the chorus of Aristophanes, happily talk over their campaigns and bring forth the reminiscences of fifty years⁶³ could earn easily and honourably a modest pension. Moreover the pecuniary motive was not the only one which gave men a liking for this business. What better opportunity for incorrigible gossips than these daily meetings of acquaintances ? And what a pleasing gratification of vulgar vanity were the cajoleries of important suitors, the flatteries of the most celebrated orators !

With judges who were for the most part only jurors, business had to be carefully prepared for the day of trial. The hegemonia had, therefore, great importance; for it involved, before presiding over the actual debates, the undertaking of a thorough investigation. It belonged for the enormous majority of cases to the archons: to the king for actions pertaining to religion; to the archon for those which concerned private right; to the polemarch for those which involved domiciled or privileged foreigners; to the thesmothetai for those in which public interest was at stake. The Eleven, the governors of prisons, introduced by summary procedure those which entailed imprisonment before trial. When Athens became a great maritime and commercial power circumstances demanded the creation of magistrates with special competence for suits which called for swift settlement. The nautodikai, who were suppressed after 397⁶⁴ and whose heritage passed to the thesmothetai, had within their jurisdiction the disputes of ship-owners, transport agents and dock labourers, to which were added after 451-0 suits under the law of aliens brought against metics who masqueraded as citizens.⁶⁵ The eisagogeis, who were five in number, dealt with commercial affairs which had to be despatched within the legal limit of a month (δίκαι εμμηναι), including complaints made by federated towns concerning the amount of tribute fixed.66

The citation was made by the plaintiff himself accompanied by two witnesses to the deed, whose deposition, in the case of the non-appearance of the defendant, authorized procedure by default.⁶⁷ Every complaint was handed to the magistrate in writing whether it was a dike or a graphe,⁶⁸ and if he accepted it the deposit for the expenses of justice was then made. For private suits the two parties deposited prytaneia which amounted to three drachmas, if the object in litigation was from a hundred to a thousand in value, to thirty drachmas if it were more; but the loser had to reimburse the winner. For public actions the accuser paid the parastasis, a small fixed sum, and, if he would benefit from any fine resulting, the prytaneia also. For claims of succession or for goods wrongfully confiscated the claimant deposited a tenth in the first case, a fifth in the second, the deposit being counted with the principal.⁶⁹

The magistrate then appointed a day for investigation (άνάκρισις). In the interval the text of the claim was published. The inquiry opened with the taking of a declaratory oath which fixed the position of the two parties and the written formula of which was attached to the dossier (άντωμοσία, διωμοσία).⁷⁰ If the defendant admitted that the form of the claim was in order, the hearing proceeded finally to the substance (ευθυδικία). If not he might oppose two exceptions to the demand, the first based on the evidence (διαμαρτυρία), the second on other objections (παραγραφή): by that he turned the tables, and in the new situation he became the plaintiff. The subsidiary action had first to be dealt with in order that the principal action might either be declared lapsed or be proceeded with.⁷¹ On the facts of the case the means of proof were: laws, contracts, depositions of free men, declarations of slaves obtained by torture, the oath of the parties.⁷² The authentic documents, originals or duly certified copies, and reports of the slightest incidents were attached to the dossier. When the inquiry was ended if it were a public action the magistrate retained the dossier sealed in a box until the appointed day of the hearing, while if it were a private action he handed it over to the arbitrator for the attempted reconciliation. If the attempt failed the arbitrator placed the documents in two separate boxes, one for the plaintiff and the other for the defendant, affixed his seal, attached the award written on a tablet and delivered the whole to the judges of the tribe of the defendant, who undertook the introduction of the case before the tribunal.73 The litigants were forbidden to quote in the trial any piece of evidence, the text of any law, process, testimony, etc., other than those which had been brought up in the inquiry.⁷⁴

The magistrate who had conducted the inquiry called upon the thesmothetai to fix the day of the trial and the number of judges who were to sit. Save in commercial cases which had to be heard within the month, the date of the hearing was often very late. In the first place the cause list was too heavily burdened;⁷⁵ and, in the second place, delays were caused by the litigants themselves who had recourse to all manner of intrigues and Fabian tactics, by means of oaths (υττωμοσίαι) which were vainly met by counter-oaths (άνθυττωμοσίαι). In this way some cases dragged on for several years. If, in the last extremity, one of the litigants failed to appear, the defendant was either condemned on the ground of contumacy or acquitted and dismissed.⁷⁶

Finally the day of the trial came. The tribunal was surrounded by a palisade with a lattice-gate.⁷⁷ Whenever there was a case which excited public interest a mob surged outside the barrier. But, in 415, when the violators of the mysteries were on trial, out of respect for the goddesses a kind of session in camera was desired, and so to keep back the crowd a rope was stretched fifty feet from the barrier and was guarded by public slaves.⁷⁸ Within, the dikastai sat on benches of wood covered with rush matting. In the middle sat the president on a stone rostrum (βήμα) from whence he dominated the audience. Near him were his secretary or clerk, his herald and the Scythian archers whose duty it was to maintain order, and in front of him was the tribune from which the litigants spoke. To right and left were two other tribunes for the suitors when they were not speaking. In the intervening space was a table on which, after the vote, the count was taken.79

The session began early in the morning. If the dikastai did not wish to lose their fee they had to rise before the dawn, for, at the appointed hour, when the president gave the signal, the door was shut in the face of late-comers.⁸⁰ Those who arrived in time received on entering a token (σύμβολον), which they exchanged when the vote was taken for another, which could be exchanged on going out for three obols.⁸¹

Proceedings opened, as in the Assembly, with a sacrifice and a prayer. Then, on the order of the president, the herald announced the list of cases to be tried; for in one session many private suits were despatched, though only one public suit. After that the clerk read out the claim or the writ of accusation and the declaration which the defence put forward in opposition.⁸²

Speech was given successively to the plaintiff and the defendant. Everyone had to speak for himself save the incapable—women, minors, slaves, freedmen and metics—who were represented by their legal guardian, master or patron. The ligitant who did not feel equal to preparing his own speech, deputed the task to one whose business it was, a logographos, and learnt it by heart; but neither the one nor the other dared confess to it. Nevertheless the accused and even the accuser might ask leave of the tribunal to be assisted or replaced by a more fluent friend; permission was rarely refused on condition that the advocate (synegoros or syndikos) was not paid. In this case the person involved might either confine himself to a few words of introduction and leave the rest to his supporter, or else allow his pleading to be corroborated by a vigorous peroration or a complementary explanation. This mutual assistance was in constant use in political cases, and the members of oligarchic hetaireiai considered it one of their principal obligations.

It was customary in private suits, but not in others, for the plaintiff to have the right of reply, and the defendant the right of counter-reply (ύστερος λόγο).83 But the sentence had to be pronounced on the same day,⁸⁴ save when a “sign of Zeus,” a storm or an earthquake, compelled the president to adjourn the session.⁸⁵ Business, therefore, had to be rapid. Except in certain suits of a sentimental character, those which concerned minors and old men for example (δίκαι χωρίς νδατος), there was a strict time limit for speeches—a time regulated by the clepsydra.⁸⁶ In private suits, the litigants were assigned a longer or a shorter time according to the value of the case. In the fourth century, when rules were somewhat stricter than in the fifth century, each had from twenty to forty-eight minutes for the principal speech, and from eight to twelve for the second,⁸⁷ not counting the time devoted to the reading of laws, decrees and other documents of the dossier.⁸⁸ In public suits in which the penalty was not fixed, the day was divided into three parts, of which one was allotted to the accusation, one to the defence and one to the judges.

Until about 390 the depositions of the witnesses had to be oral; after that date they were drawn up in advance in writing and read by the clerk.⁸⁹ It was forbidden to each party and to his witnesses to interrupt their opponent, unless he himself formally consented to it or himself put questions to them, in which case his time limit was still the same.⁹⁰ Such incidents gave to the debates an extraordinary animation. There were others, in criminal and political cases, sometimes even in civil cases, which produced intense emotion and roused men’s passions.

When the plaintiff sensed that affairs were going badly for him, he could up to the last moment withdraw his plea. In private suits he still had that right at the moment when the votes were being turned out of the urn for counting, either on his own decision, or if he agreed with the defendant on terms of a transaction or compromise by private arbitration. He incurred no penalty save the forfeiture of the deposit made for expenses.91 In public suits the accuser who withdrew was condemned to a fine of a thousand drachmas and deprived for the future of the right of bringing any charge of similar nature. We know, however, of such agreements made, even for money, with the consent of the magistrates.⁹²

Whilst the pleadings proceeded the rôle of the judges was that of silent and passive witnesses. As soon as it was at an end, they were called upon by the voice of the herald to give their vote. They voted without deliberation, and the secrecy of the vote guaranteed its freedom.⁹³ In the fifth century each judge received a small shell (χοιρινή) or a pebble (ψήφος) which he deposited according as he favoured one or other party in one of the two urns before which he passed.⁹⁴ After 390 a system was devised which better ensured the secrecy of the vote: each juror received two counters of bronze, an unpierced one for acquittal, a pierced one foï condemnation; he threw the one which was to count in a brazen urn (κύριος άμφορεύς) and the other for the countervote in a wooden urn (άκυρος άμφορεύς).⁹⁵ The results of the ballot were proclaimed by the herald, and the judgment, determined by a simple majority, was pronounced by the president.

If the defendant were absolved the whole matter was at an end. It only remained to inflict on certain accusers or plaintiffs the penalties which were automatically applicable to the bringing of ill-considered actions. The accusers who did not gain a fifth part of the votes in public suits and those who withdrew their charge, were condemned to a fine and a special atimia. In a considerable number of private actions, such as exceptions brought into the principal actions, counter- suits, actions against trustees or against debtors, nonsuited accusers owed to the defendants an indemnity fixed at the sixth part of the sum in dispute (έτωβελία)96

In case of condemnation there were two possible ways of procedure. Greek law made a distinction between suits in which the damages were not fixed (αγώνες τιμητοί) and those in which they were (αγώνες ατίμητοι), that is to say the penalty was sometimes left to the discretion of the judges, sometimes determined in advance by a law or a decree of reference to the court or even by a preliminary agreement between the suitors. Thus in a suit of the second category the penalty followed automatically from the sentence of condemnation. It was only in cases where the penalty was partially determined that, on the demand of one of its members and after a special vote, the tribunal inflicted an additional penalty (προστίμημα) to the sanction laid down by the law.⁹⁷ But in a suit of the first category a new procedure was necessary in order to fix the corporal or pecuniary punishment (τιμάν ο τι χρη παθειν ή άποτεισαι).⁹⁸ The accuser and the accused each proposed a punishment to the tribunal: these formed the assessment (τίμησις) and the counterassessment (άντιτίμησις). They were allowed a short time in which to justify their proposal; then a second vote was taken in which the judges could only pronounce for one or other of the suggestions without being able to adopt a middle course. In the fourth century the second vote was taken in the same fashion as the first, but in the fifth century wax tablets were used on which the judges traced a long or a short line according as they supported the more severe or the more lenient sentence.⁹⁹ It is this procedure, designed to limit arbitrary powers, which explains the condemnation to death of Socrates.¹⁰⁰

The penal legislation applied by the tribunals was based, in popular opinion and the theories of the philosophers, on the ideas of correction (κόλασις, νουθεσία), reparation (τιμωρία) or deterrence and social defence (παράδειγμα, αποτροπή). The principle of responsibility was applied with increasing rigour and extended, as in the most remote times, to animals and things guilty of causing death. Cumulative penalties were prescribed by law for crimes with definite sanctions, such as sacrilege and treason which were punishable at one and the same time by death and confiscation. But for unassessed offences corporal punishment excluded pecuniary punishment (τταθβϊν ή άποτβίσαί). Absence of intention and irresponsibility (infancy, madness, anger, passion, constraint) constituted extenuating circumstances; recidivism and offences committed during a public or sacred ceremony, on the other hand, were regarded as particularly serious. Procedure and punishment often differed according as the two parties were citizens or, either one or other or both, metics or slaves. Corporal punishments were: pain of death which was the punishment according to law for premeditated murder, sacrilege and treason, and which might be inflicted in all sorts of crimes of a similar nature to those in suits in which the penalty was not defined; banishment, which was often substituted for death; atimia, which after having entailed outlawry was reduced to civil degradation; penal servitude and imprisonment, reserved generally for non-citizens and for exceptional cases ; flogging, inflicted only on slaves. Penalties of infamous nature were: denial of burial, which might follow upon a posthumous judgment; the forbidding of adulteresses to wear ornaments and to enter temples ; the curse, launched against certain defaulters ; ignominious inscription on a stele. Pecuniary punishments were: total or partial confiscation, fines and damages.101

Legal notice of judgment was made in writing to those who were concerned with its execution. After a public suit, the writ was delivered to the competent magistrates, for example, the Eleven, the chief gaolers and the executioner, and to the poletai_y responsible for the sale of confiscated property. When it was of political concern it was deposited in the archives. After a private suit, it was handed over to the victorious party, the State only taking part in the execution in so far as it had an interest of its own to safeguard· The collection of fines fell to the praktores and, when a tithe was to be deducted from them for the benefit of Athena, it was the duty of the treasurers of the goddess to see to it. A rule common to the whole of Greece substituted for the debtor of an unpaid fine the magistrate at fault.¹⁰²

In principle, judgment, the expression of popular will, was irrevocable, sovereign (χνρίος) and perfect (αύτοτέλης).103 But rescission was not impossible in criminal matters. What the people had done the people could undo, on condition that respect for the matter judged remained intact. Different means of procedure allowed this result to be attained, on the one hand juridical, on the other political. A defaulter might oppose a judgment made in default within two months, if he established on oath that his absence was justified by a flaw in the procedure. Suits against false testimony and conspiracy, and suits with no established penalty, gave the tribunals the opportunity of repairing the damage caused by a pecuniary condemnation or of furnishing the victim of corporal punishment the fresh evidence on which a plea for reversal of judgment might be based. On the other hand, the Assembly retained, in judicial matters as in all others, its supreme prerogative. It had the right of pardon. But no one could have recourse to it without having previously obtained an adeia, one of those bills of indemnity which had to be supported by at least six thousand votes. This procedure formed the solemn prelude to all decrees of epitimia or of rehabilitation. It alone gave legal validity to the collective amnesty, which was never accorded save on extraordinary occasions, as a measure of public safety. It alone protected against an accusation of illegality acts of individual indulgence, the recall of an exile, the revocation of atimia, the annulling of a public debt.¹⁰⁴ It was thus that the Athenian people found a means of safeguarding the partial sovereignty of the judges, its delegates, while conserving intact the total sovereignty which could only belong to the whole body of citizens.

III

DISTINCTIVE TRAITS OF JUSTICE AND OF LAW

The judicial institutions which we have just described have been the object of innumerable criticisms, as much with the ancients as with the moderns. What are we to think of them?

The fact which struck contemporaries most forcibly and which still strikes us when we read the pleadings of the orators is the presence of a spirit of unlicensed chicane, a taste for litigation which is indeed unpleasant. One opponent of democracy speculated as to whether there were as many suits public and private in the whole of the rest of Greece as there were in Athens alone.105 It is beyond dispute that individuals went to law with a readiness which was deplorable, that the renderings of accounts and the liturgies gave rise to endless law suits, that the absence of a public prosecutor caused the swarm of sycophants to multiply. It was not without cause that the comedy writer devised the name of Dikaiopolis.

Without denying the fact it is, however, necessary to seek for an explanation of it. This eagerness to fling themselves into battle derived from the combative instinct of the Greeks and of the Mediterranean peoples in general. If one links it up with its origins and with a past still very recent, it is the mark of a great advance made in social relations. In former days antagonists rushed to arms, and throughout the whole of the sixth century we see the vendetta bathing Attica in blood. The abuse of chicanery took the place of the abuse of force and testified to the fact that citizens curbed their passions in order to subordinate themselves to the law.¹⁰⁶ The evil of sycophancy itself can be ascribed to the fact that Athens was still too near to the times when the jurisdiction of the State was not obligatory. And there is also another side to this evil: since there was no public prosecutor justice was at all events independent of the government, and the initiative of citizens in both private and public actions was one of the rights which resulted from this freedom.

But we will leave the litigants and turn to the judges. Here once more we see in general only subject for criticism.¹⁰⁷ Blame is first imputed to the misthos. These jurors who hurried to the tribunal in the small hours of the morning in order that they might exchange in the evening their attendance token for two or three obols, who longed for the time when “they should drink the milk of Kolakretes,”¹⁰⁸ present to minds not hypersensitive a distressing spectacle. Did not this distribution of salaries to hundreds, to thousands of citizens turn them from productive work ? And did it not at the same time place an excessive burden on the exchequer ? Moreover, what a preposterous idea to give the mob seats in the courts ! It was to give an unlimited competence into the hands of incompetence, to permit justice to be destroyed by ignorance of the law. It was not difficult for cunning pleaders, for logographoi skilled in arguing beside the point, to cite texts falsely, to indulge in fallacious interpretations. And there was something still worse. Summoning to its aid ethos and pathos eloquence attempted to touch the heliasts upon their weak spot, to excite their passions. Defendants surrounded themselves on the tribune with their kinsmen, their wife and weeping children, in order to soften the hearts of the judges.109 On all sides play was made with patriotism or devotion to democracy; a litigant would ransack the past life of his adversary in order to hurl at his head the vilest insults, the basest calumnies. As soon as a case touched upon politics the tribunal was transformed into a public assembly : the judges no longer restrained themselves from yielding to the influence of party, and partiality disguised itself as justice. Moreover, law can do nothing when the feeling of professional responsibility is replaced by pride in irresponsible sovereignty.¹¹⁰ It was besides completely silent in a great number of cases in which arbitrary power was left to the judges in the determination of penalties. The system of assessable cases thus permitted the court, as, for instance, the one for eisangeliai, to treat in the same way offences of widely differing nature. And there was no appeal. We can see why Athens was able, by her condemnation of Socrates, to commit the greatest of judicial crimes.

To these charges, which we have in no way exaggerated, there are many replies to be made. Once more it is necessary for a true appreciation of the institutions of the fifth century to observe them in the light of the past and not to place implicit faith in the criticisms of the opponents of the regime.

The misthos dikastikos had its origins in the remote past: even so far back as the Homeric city the gerontes required litigants to make a deposit of golden coins as the price of the arbitration which they sought, and at a later date the “devourers of presents” who held sway in Bceotia did not administer justice gratuitously. Why should democracy adopt a different practice when the sacrifice of a day was a much greater burden for men of small means ? The rate of the misthos was, moreover, extremely low: about the time when it was established at Athens at the rate of two obols, at Halicarnassus it was a hemiecton which was worth seven times as much.111 It was certainly not enough to encourage laziness in the citizens, nor were even the three obols, which merely permitted them to add a delicacy to the evening meal and, if they were old, saved them from being regarded by their families as so many useless mouths. As to the public treasury it was in no way affected since the payment was made out of a special fund from the revenues of justice : the judges lived by giving justice. In short the payment of the jurors in no way merited the reproaches which were one day to be heaped, with some appearance of reason, upon the payment of citizens attending the Ecclesia.

Undoubtedly it would have deserved it still less had the number of judges been smaller. But one must remember that it could not well have been smaller at the epoch when the Heliæa was instituted. Solon aimed at marshalling the whole people against arbitrary sentences of the magistrates by giving it the right of amending them in appeal. In the Heliæa, as in the plenary Assembly, the legal people had, therefore, to consist of six thousand citizens. All that one could and ought to do when the Heliæa judged in first instance —and naturally, therefore, in the last—was to divide it into as many dikasteria as were necessary to fit it for its task, and to it was applied, as to other institutions, the rule of decimal division. These enormous juries had their inconveniences, their dangers even: that is an undeniable fact. They were without juridical knowledge and they often allowed themselves to be swayed by reasons irrelevant to strict justice.

Again we must not exaggerate criticism nor allow it to lead us to false conclusions. The condemnation of Socrates was the tragic consequence of a procedure specifically designed, by compelling the judges to choose between the penalties proposed by the plaintiff and the condemned man, to prevent them from arbitrary assessment of penalties. The accusers had experienced great difficulty in obtaining a verdict of guilt even though the accused had scorned to make use of any appeal ill-befitting his dignity.112 He could easily have saved his life by opposing to the proposal put forward by Meletus, which demanded the penalty of death, a counter-proposal which might have resulted in a less stringent punishment. But he was not willing at his time of life to give the lie to his past, to his mission. Without bravado, with an ironic pride, he declared that a man such as he deserved to be nourished in the Prytaneum for the remainder of his days.¹¹³ The condemned man demanded the most coveted of rewards. Grudgingly he consented, as a concession to the urgent appeals of his friends, to propose to pay a fine of thirty minai.¹¹⁴ But the judges could not go back on their first vote and impose an almost nominal penalty. He wished for death, and so he died.

One must not, therefore, infer too much from that example, nor from those which the political suits of the fifth century furnished, and believe that the people sitting in the tribunals always exhibited the caprices of a tyrant. At all events there is one reproach which cannot be brought against it, namely that of venality: the judges were too numerous to be bribed. On this point we have valuable testimony. An Athenian oligarch turns down the idea of reducing the personnel of the tribunal. “ It would be too easy, he thinks, to intrigue with a small number of judges, and, by means of corruption, decisions far less equitable would be obtained.”¹¹⁵ According to Aristotle the first Athenian who gained acquittal by means of bribery was Anytus in 409, one of the future accusers of Socrates.¹¹⁶ All things being considered, democratic prejudice did not involve miscarriages of justice more glaring than those which political and social prejudices have been and still are guilty of under no matter what system of government. Here again we have the testimony of the same oligarch : he deplores the fact that no hope for a revolution is to be looked for in the discontent of citizens punished with atimia, because condemnations of this order were in Athens so rarely unjust.¹¹⁷ Striking homage rendered by an enemy to the regime which he abhorred !

Of the criticisms brought against Athenian justice there remains the charge concerning the instability and insecurity of the law which it applied. In current opinion Athens is regarded as the country of art, of letters and of philosophy, but a country which never possessed juridical sense. But is it possible that she should have failed to give to her laws and jurisprudence, as to everything else, the stamp of her reason and practical sense ? In estimating it as one does, one compares Attic law, consciously or not, with Roman law; fundamentally one is reproaching the law of a transitional period for not being completely developed. The criticisms which are brought against it are its praises. This absence of unity, this lack of systematic spirit, this inconstancy of principles and rules which flowed therefrom, would not have existed if Athens had remained superstitiously attached to ancient customs and ancient laws, instead of continually distinguishing between what ought to be conserved intact and what ought to be renovated. It is her glory to have been in the fifth century a flaming furnace from whence issued day by day ideas which poets and philosophers fashioned and forged. In the theatre, in the schools of the sophists, questions of fundamental law were thrashed out. Æschylus in the Oresteia shows us the people passionately discussing the question of penal responsibility and the powers of the Areopagus. Protagoras, for the first time in history, sought for the rational basis of the right of punishment, and at the outset he expounds all the ideas, in order that he may repudiate or establish their validity.118 Antiphon composed series of speeches which are less exercises in judicial rhetoric than models of juridical argumentation, worthy indeed of the man whom Thucydides styled a profound thinker.¹¹⁹ These were the great ancestors of the jurisprudentes. Moreover they were not content to be mere theorists. Protagoras in particular exercised a great influence. When a pan-Hellenic colony was established at Thourioi he was commissioned to amend for it the laws of Zaleucus.¹²⁰ He was counted among the intimates of Pericles,¹²¹ and we know that the statesman and the philosopher passed an entire day in discussing like subtle casuists a question of penal responsibility.122

The system of assessable actions and eisangeliai had at least the advantage of familiarizing judges who were not professionals with all the subtleties of jurisprudence. It led them to continual assimilations, and so permitted, for example, all sorts of crimes and delinquencies to fall within the range of the ancient law against sacrilege and treason, and in consequence to render them liable to capital punishment. But, on the other hand, it allowed traditional pains and penalties to be mitigated in accordance with new ideas and more civilized customs. Armed with an arbitrary power the people, the sovereign justiciary, admitted of no restriction either upon its severity or upon its mercy; but it placed its omnipotence more often at the service of its constant humanity than of its sudden and short-lived passions. Above all it freed itself from the tyranny of forms and fixed rules in order that individual rights might prevail and equity be discovered.¹²³

The whole penal code of Athens was dominated by the desire to assure full and complete freedom of person, and this produced one of its peculiar aspects. No reproach has been more frequently brought against Athenian judges than that of abusing their power of inflicting pecuniary penalties, and it has often been insinuated that it was done from interested motives with a view to filling the exchequer of the misthos. As a matter of fact there were in Athenian history critical moments when no stone had to be left unturned in order that the needs of the exchequer might be met,¹²⁴ and even in normal times confiscations and fines were of a frequency which readily lends itself to unfriendly interpretations. But one must see things as they really were. Pecuniary penalties took the place of corporal penalties which modern tribunals are so free with, and of which many would have appeared intolerable to Athenians. At the end of the fifth century confiscation was no longer added to the penalty of death; it became the price of ransom and thus saved many heads. As to fines they were only so numerous because since Solon the dignity of the citizen seemed irreconcilable with penalties which deprived men of their liberty. Imprisonment, as well as preventive detention, might be suitable for metics ; flogging for slaves; they were not punishments applicable to Athenians· “ Only in the last extremity,” says Demosthenes, “ought one to lay hands on the person of a free man. . . . Do you wish to know the difference between servitude and liberty ? The most remarkable consists in this, that all the misdeeds of the slave are visited upon his body, while the free man, though he be in the last degree of wretchedness, at least remains master of that.”125

But there was another spirit which animated Athenian justice and which led to the accomplishment of great reforms: the humanitarian spirit. The Greeks in general were merciful in comparison with the barbarians their neighbours: they did not carry torture to a high degree of refinement as did the Asiatics ; their violence was that of anger, not of drunken brutality, as was that of the Thracians. More than all other Greeks the Athenians won for themselves the reputation of exhibiting in all circumstances that sympathy for misfortune which in their eyes was the privilege of civilized men, that all-embracing love of humanity to which they were the first to apply the name “philanthropy.”¹²⁶ The Boeotians might be hard and vindictive, but the Athenians must be just and merciful. They desired that in the furthest extremities of the barbarian world, if a law protecting the weak were mentioned, homage should be rendered to the benignity of their customs.¹²⁷ This mercy extended even to the guilty, even to those condemned to death : unless they were base malefactors they were not delivered over to the executioner; they were allowed to escape this fate by way of suicide; they might demand from their gaoler the cup of hemlock which assured to them a swift and painless death.¹²⁸ And still more did the judges show pity for innocence.

Constant amendments of the law went concurrently with its application. In general the laws of the Athenians were undoubtedly mild and indulgent, “made beautiful by kindness ”; such was their advantage for the majority and especially for the lower classes.129 But the laws did not meet all cases; and in addition there were some which had been neither abrogated nor amended, and which burdened the families of certain criminals with formidable responsibilities. How were innovations possible in the case of laws which antiquity and the name they bore made sacred ? It was clear that innovations were necessary, and reason demanded that the laws should not be immutable.¹³⁰ The Athenians* quite simply, fulfilled their duty as judges with the hearts of men. They were ever ready to pardon, and plaintiffs habitually sought to warn them against excess of mildness. If a woman and her children, threatened with a life of misery, were but to place themselves near the defendant and begin to weep, the tribunal was moved. “What else can we do ?” says Philoeleon. “We feel the violence of our anger melting away.”¹³¹ And so it was with them all; they preferred to absolve a guilty man rather than condemn with him his innocent dependants. In this way jurisprudence never ceased to amend the law and to be amended itself by “ philanthropy.”

Throughout the whole of the fifth century the last traces of family responsibility were being progressively abolished. In 479 a councillor who was suspected of being a traitor was stoned with his wife and his children. Somewhere between 465-460, in a law imposed on the Erythræans, Athens demanded that the traitor should be put to death with his children, “ unless the children had given proof of devotion to the people,” that is to say unless they obtained letters of remission which were only refused in cases of personal guilt. In 411, when the oligarchs Archeptolemus and Antiphon were condemned to death, the sentence did not mention the children.¹³² Under the law of ostracism all the kinsmen of Pisistratus had been menaced, since 508, with banishment. In 471, on the other hand, the children of the proscribed Themistocles remained unmolested in Athens for as long as they wished.¹³³ Atimia, the deprivation of civil rights, was still hereditary in a decree of 444-3, but in 410 we find a plaintiff saying to the tribunal: “We see you, Oh judges, softening your hearts at the thought of the infamy which threatens the children at the same time as their guilty fathers, and acquitting the fathers for the sake of the children.”134 A decisive circumstance enabled the people to assure here once more the principle of personal responsibility : the amnesty which, in 403, brought an end to the civil war extended to the sons of the thirty tyrants, and, when their personal enemies attempted to violate it, the people refused to follow them.¹³⁵ It is true that frequent recourse to confiscation, inevitably a collective punishment, as is all pecuniary punishment to a certain extent, remained; but we have seen in what spirit the Athenians multiplied punishments of this order: they laid hands on men’s property in order that their persons might remain free. Moreover, they felt keenly the unjust repercussions of confiscation in certain cases and did their utmost to allay them : they always left some resources for those whom they struck indirectly.¹³⁶

Whilst Athenian justice assured the benefits of liberty and fraternity to its citizens, it applied in a certain measure the principle of equality to those even who seemed excluded from it by nature, to the slaves. Logically the conception of the city made the slave a chattel of the citizens, a tool without name, without family, without property, without rights. By a consequence no less logical the democratic principle, always favourable to the bottom dog, was to lead the people to see that this chattel had a human form, that this tool had a soul, that the slave himself deserved to be treated with philanthropy. The sophist Antiphon clearly reveals by what steps rational men arrived at this subversive conclusion. A fragment of papyrus enables us to follow his reasoning. He lays down as a principle that men of good family have no greater right to respect than others: “we are all and in all respects of the same birth.” But then there is no distinction between the Greek and the barbarian: “ we all breathe in the air through the mouth and the nostrils. And . . .”¹³⁷ Here the papyrus is mutilated; but we have the conclusion in the pathetic lines spoken by a character in one of the comedies: “Though a man be a slave, my master, he is none the less a human being as thou art; he is made of the same flesh. No one is a slave by nature; it is destiny which enslaves men’s bodies.”138

Economic necessities tended in the same direction. Servile labour assumed less severe forms.¹³⁹ Certain masters, in order not to allow the “bodies” to remain unproductive, hired them out to employers in search of labourers. It very soon happened that men bought labour simply in order to hire it out and receive the rent for the day or the month. As one would expect the bonds which attached slaves bound to the soil to their owner grew more and more relaxed. Then men began to think that it was very much simpler to leave to the slave who had learned a trade the business of exercising it where and when he wished, on condition of paying to his master, thus become a rentier, the return which alone interested him. Thus was formed a class of slaves “ separately domiciled” (χωρίς οίκοϋντες): they differed from free workmen only in the obligation to deduct from their earnings the master’s share, one or two obols per day. Finally the State itself had recourse to servile labour, especially for the construction of buildings and upkeep of roads, as well as in its administrative departments. Whence a new class of slaves, and highly privileged ones, arose: not only had they necessarily the right of separate domicile without paying any due, but, thanks to their accounts, their knowledge of the archives, and their administrative experience, they were able to guide the magistrates who were elected by lot and who changed every year; they exercised over their ostensible masters a secret power, and thus succeeded in playing an influential part.

What need for surprise that the Athenians should have left to their slaves a liberty which the poorer citizens of many an oligarchic State might have envied ? Obviously it was to the interest of the masters to accord to their slaves the right of free speech which was thought proper for the amelioration of their condition;¹⁴⁰ it was to the interest of the city not to exasperate them since they constituted a formidable body. But there was yet another motive: simply the democratic fervour which possessed the Athenians. The oligarchs were indignant at what to them appeared “the consummation of licence.”141 What an indignity that one could not strike slaves, nor even demand that they should yield place in the road, for the sad reason that, dressed as citizens, they were indistinguishable from them ! It is this, “ the anarchy of slaves,” which, for Aristotle, is a characteristic trait of democracy.¹⁴² Of this reproach the Athenian people made for itself a virtue.

It did not admit that the right of corporal correction¹⁴³ might be exercised in any way upon a slave by anyone other than the master, nor that, for the master, it extended to the power of life and death. The victim of arbitrary and continued maltreatment might even seek refuge in certain sanctuaries and demand to be sold to another master.¹⁴⁴ The murder of a slave not only involved a claim for payment of damages ; his master, his champion, might cause the murderer to be exiled by the Palladion.¹⁴⁵ The slave’s honour was even protected by the same public action as the citizen’s (γραφή ΰβρεως). There was another provision, even more noteworthy than the preceding one on account of the reasons which Æschines, in agreement with Demosthenes, gives for it: “ It is not for the slaves that the legislator has such tender solicitude ; he has realized that any man who, in a democracy, outrages anyone no matter whom, is not fitted for the communal life of the city. ... It is his conviction that he ought to consider, not the status of the injured person but the act committed ; . . . for it is the city which he judges to have been attacked.”¹⁴⁶ But the boldest and most novel idea of Athenian law was that of giving the slaves guarantees against the magistrates, against the very representatives of the city. Throughout the whole of Greece police regulations inflicted a fine on the free-man and a flogging on the slave. But whilst everywhere else the severity of the flogging was left to the discretion of the magistrates or the executioner, at Athens a maximum was established for corporal as well as for pecuniary penalties: fifty drachmas, fifty stripes.147 A small detail in the whole body of legislation, but a most significant assault upon its principles. Not only did the law place on the same footing, within the limits of the possible, the man who could be punished only with his body and the man who could be punished only with his goods; but the city, in restricting the right of its representatives, bestowed on a creature denuded of all juridical capacity a right opposable to itself. Here we have the most typical of those beneficent contradictions, those fine inconsistencies which were due to the introduction of democratic ideas into the old legislation, and which inspired in the Athenians a noble pride because they saw in them the mark of their moral superiority over the rest of the Hellenes.¹⁴⁸

So long as the Greek cities were concerned with establishing their power upon the ruins of the family regime, with replacing private vengeance by obligatory recourse to justice, and with individualizing responsibility for personal delinquencies they had advanced together with more or less equal steps along the road of law. But ever since Solon had attempted to give an absolute value to the principle of personal liberty and had instituted public actions for the protection of the weak, and Cleisthenes and Pericles had strengthened popular justice, Athens, carried forward on a wave of democratic fervour, had marched along the road to which her traditions bound her, far ahead of all the other cities. At the end of the fifth century she alone granted the individual the right of free disposition of his property by will ; she alone had abolished the State privilege of collective responsibility; she alone had carried philanthropy so far as to sap the rational basis of the institution of slavery—an institution without which it seemed that the city must perish.