The Greek intellect, with all its mobility and elasticity, was quite unable to confine itself within the straight waistcoat of a legal formula; and, if we may judge them by the popular courts of Athens, of whose working we possess accurate knowledge, the Greek tribunals exhibited the strongest tendency to confound law and fact.
H. S. Maine, Ancient Law (London, 15th ed., 1894), 75
In the fourth century litigation in most cases followed a standard pattern. Each dispute proceeded through two stages. First, the parties appeared before a magistrate, typically one of the nine archons, for a preliminary hearing (anakrisis or proanakrisis). This was an opportunity for each party to bring together his evidence and his documents. The second stage was a trial before a dikastērion, a body of dikastai numbering 201, 401, 501, or occasionally more. At the trial each of the two litigants spoke in turn, and after their main speeches each was allowed a briefer time for a speech of rebuttal. When all the speeches had been delivered, the dikastai did not deliberate but cast their votes by means of counters. The same magistrate presided at the trial as at the preliminary hearing, but he did not exercise authority. In particular, at the preliminary hearing he did not issue a judgment or even a recommendation, and although he may have had a modest power to dismiss the parties on the grounds that the plaintiff’s plea was not admissible, this possibility is known only from a remark of a late lexicographer.1
Any such discretionary power which the magistrate retained became even more restricted in the fourth century than in the fifth. The peace settlement of 403/2, putting an end to the civil war, included a clause of amnesty. When in spite of the amnesty some people sought to prosecute others for deeds committed under the Thirty, a law was made on the proposal of Archinos to introduce the procedure of paragraphē. By this procedure the defendant in his response to the plaintiff’s opening plea challenged that plea as inadmissible.2 The procedure of paragraphē came to be used widely; no less than seven of the speeches in the Demosthenic corpus (32–38) were delivered in cases of this kind. It had the effect of transferring any decision needed on the preliminary question of admissibility from the magistrate to the dikastērion.
In tracing the way the process of litigation grew in Athens this chapter will keep in mind the question, why procedure had the two stages. Section I will describe the fully developed conditions of the time of the orators. Section II will recognize the two theories current to explain the two-stage procedure and will choose between them. Section III will consider the courts for homicide, since these differed from the dikastēria and may well be older. Section IV will look further into origins, and section V will discuss an anomaly which might furnish an objection to the views here endorsed.
As in chapter 3, something needs to be said in advance about terms. Scholars accustomed to the Anglo-American systems have sometimes translated dikastērion as “jury” or “jury-court” and dikastai as “jurors.” Athenian dikastai resembled Anglo-American jurors in that they were not learned in the law. But the differences were more serious. Each body of dikastai was far more numerous than an Anglo-American jury. Dikastai did not deliberate on their verdict but merely voted. Above all, dikastai decided the whole issue, since Athenian procedure did not distinguish between question of law and question of fact. If an English word for dikastai is needed, it is better to call them “judges” than “jurors.” It is better still to call them dikastai.
Another question concerns the words dikē and graphē. These comprised the most extensive classes of lawsuit. A dikē could only be initiated by the party who believed that his interests had been harmed or, in cases of homicide, by the relatives of the victim. A graphē could be initiated by any adult male citizen who was not disqualified by atimia or on other grounds.3 Probably the reason why a graphē was available as the remedy for some conditions was that the interest of the community was at stake; this is true, for example, of the graphē paranomōn (pages 44 and 49–50 above) and the graphē asebeias (for impiety). So some scholars have called the graphē “criminal proceedings” and the dikē “civil proceedings.” But for some conditions Athenian law provided a graphē as the remedy, not because any interest of the community was at stake, but because the person whose interests were harmed was unable to initiate an action. This is true, for example, of the graphē for inflicting harm on an orphan.4 The orphan, being a minor, could not take action at law. Again Athenian law provided a dikē as the remedy for some conditions where modern thought would expect criminal proceedings. Notably the typical procedure for homicide was a dikē Indeed the modern category of “criminal proceedings” is somewhat varied and can better be explained by historical factors than by an underlying principle; so the term should not be applied to Athens. The terms “public action” for graphē and “private action” for dikē may be rather less objectionable, but there is not much to commend them. The Greek words, transliterated, avoid risk of misunderstanding.
Actions following the form of graphē or dikē were initiated before one of the nine archons. Each of the archons received actions of defined kinds. The distribution of the different kinds of plea is indicated, with omissions, by Aristotle when he reviews the tasks of the nine archons (AP., 56–59), and some principles of distribution can be detected. For example, many suits concerning the family (such as suits for harm to parents, for harm to an orphan, for harm to an epiklēros) were brought to the eponymous archon. The king-archon received cases of homicide. The polemarch received cases concerning metics; on the whole his court judged metics in the circumstances under which the court of the eponymous archon judged citizens. The cases brought to the thesmothetai were numerous and miscellaneous. It is credible that the thesmothetai were created later than the other three of the nine archons5 and that they were intended to deal with a growing number of types of action as public authority took over more spheres of activity.
Among dikai a distinction was drawn between δίϰαι πϱός τινα and δίϰαι ϰατά τινος. The former class was more numerous. In it only property was at issue. In a dikē kata tinos the plaintiff alleged that the defendant had committed an injury against him. If the court found for the plaintiff, the consequence could be a penalty as well as restitution.6 Torts in modern law are somewhat similar.
Apart from the dikē and the graphē there were several “special procedures,” as they may be called. Some of them deserve to be noted here, because in spite of their distinctive features they resemble the dikē and the graphē in that proceedings were in two stages and the second was a hearing before a dikastērion.7 For example, the three “special procedures” of apagōgē, endeixis, and ephēgēsis were alike in that the Eleven, the officers in charge of the prison, played a part in them. In apagōgē one led the alleged offender to the Eleven; in endeixis one pointed him out to them, and in ephēgēsis one guided them to him. When the Eleven took custody of the accused man, they put him to death, if he admitted the offense, but if he denied it, they brought him before a dikastērion for trial. These procedures were available against some classes of thieves, if taken in the act, against kidnappers, against people who stripped a man of his cloak, against adulterers, against some kinds of homicide, and against citizens who contravened a decision depriving them of citizen-rights. The limits to the types of offender against whom these procedures were available may have been vague.8 The three procedures of apagōgē, endeixis, and ephēgēsis may be called the “summary procedures,” since they could lead to immediate execution, if the accused admitted the offense. They had doubtless arisen by modification of a previous right of retaliation, which did not originally require any intervention by a public officer or a court. The requirement that the offender be taken in the act points to this explanation. Indeed Demosthenes, summarizing some provisions on theft, says that one may kill the nocturnal thief or wound him in pursuit or lead him to the Eleven.9 In the “summary procedures” the main effect of the intrusion of public authority was to allow the accused a trial before a dikastērion, unless he confessed guilt. In formal terms the “summary procedures” resembled the dikē and the graphē in that there were two stages, the second and decisive stage being a hearing before a dikastērion They differed from the dikē and the graphē in that the first stage was a proceeding before the Eleven, not before any of the nine archons.
Apart from the “summary procedures,” only two of the “special procedures” need be noted here. One of these is apophasis. It used to be known mainly from the scandal concerning the money which Harpalos, the treasurer of Alexander, brought with him to Athens in 324. After Harpalos had left, rumor said that some leading Athenians had accepted bribes from him. The assembly passed a decree, instructing the council of the Areopagos to investigate. Six months later the Areopagos presented its report. This gave nothing more than the names of the suspects with a sum of money against each name. Each of the suspects was tried by a dikastērion.10 In 1968 a papyrus fragment (P. Oxy. 2686) of a speech of Hypereides for Chairephilos was published. It belongs to a trial held on another occasion, when the Areopagos had issued a report naming suspects. The fragment refers to charges stated in a decree. Evidently the decree had instructed the Areopagos to investigate. The distinguishing feature of this procedure was a preliminary investigation by the Areopagos, leading to a report (apophasis). The report merely identified suspects with a view to trial; it offered an accusation, not a proof, and as far as is known, it did not even cite evidence. The role of the Areopagos in this procedure was rather like that of the archon in the dikē or the graphē Proceedings were in two stages, and the second stage provided protection for the accused; he was entitled to trial before a dikastērion The introduction of apophasis in the second half of the fourth century illustrates the fertility of the Athenians in procedural law.11 If a condition was found to need correction, the typical response of the Athenians was not to draw up an elaborate set of substantive rules but to devise a procedure for getting the issue, as often as it might arise, into court, so that the court could regulate each case. But in devising procedures they kept to the pattern of two stages.
The other procedure to be noted is eisangelia. Many of the attested applications of this procedure arose from political conflicts and the offense was said to threaten an interest of the community. In most occurrences proceedings were in two stages, the second and decisive stage being a trial before a dikastērion The first stage was a hearing before the council of five hundred or the assembly of citizens. That indeed was the distinguishing feature of eisangelia. In a few attested cases there is some evidence for believing that the hearing before the assembly was final and the case was not referred to a dikastērion These cases, though comparatively few, raise a major question of juridical principle and will be considered in section V.
For the present, brief attention needs to be given to two variations from the pattern of two stages, as described so far. First, trials for homicide of the various kinds recognized in Athens proceeded in two stages. The first stage was a preliminary hearing before the king-archon and the second was a trial before a court. The court, however, was not a panel of dikastai but for some charges the council of the Areopagos and for others the ephetai, a body whose identity is not securely attested. It is reasonable to suppose that some of the features in the procedures for homicide arose early in the history of Athenian justice. They may provide a clue toward understanding the origin of the other judicial procedures, which grew to overshadow them, and they will be examined in this spirit in section III.
Second, in the fourth century the Athenians had institutions encouraging the settlement of private disputes out of court. When the revolution of 404/3 had been reversed, the thirty itinerant judges of the preceding half century were raised in number to forty, four being drawn by lot from each phylē, and they ceased to travel. They can be called “the Forty.” Private suits were brought before those four of them who belonged to the phylē of the defendant. The Forty had authority to determine cases where the object at stake was worth not more than ten drachmas. If it was worth more, the judges sent the parties to a public arbitrator. Citizens in their sixtieth year were required to serve as arbitrators, and the Forty assigned cases to them by lot. When an arbitrator received a case, he tried to work out a compromise between the parties. If his efforts succeeded, the dispute was at an end. But if either party was dissatisfied with his recommendation, he sent them back to the four of the Forty who were drawn from the defendant’s phylē, and these judges in turn brought the case before a dikastērion. If the object at stake was worth not more than 1,000 drachmas, the dikastērion consisted of 201 dikastai. If it was worth more, the dïkastērion consisted of 401 dikastai
Aristotle (AP. 53) says that the Forty received “the other dikai,” after he has mentioned a series of special cases which had to be settled within a month. It is likely that a great deal of private litigation passed through the hands of the Forty and the arbitrators; so there was a good chance of reaching a settlement out of court. Strong arguments have been offered for supposing that the board of public arbitrators was instituted by a law of 400/399, so that the first board served in 399/98.12 It should cause no surprise that the board was created at a relatively late date. People call for informal procedure and for settlements out of court when they have learned the delays, costs, and frustrations of litigation. No doubt well-disposed disputants had submitted their cases to arbitrators chosen by mutual agreement from time immemorial. The habit may have been growing toward 400/399, for one of the “supplementary measures” mentioned by Andokides (1.87–88; page 37 above) said that judgments in lawsuits and recommendations accepted through arbitration were to be valid, if they were issued while the city had dēmokratia. Indeed the institution of the thirty itinerant judges in 453/52 was probably intended to provide speedy and informal justice, but nothing more is known about them.13
Before leaving the administration of justice in the age of the orators one should take note of the practices adopted for assigning dikastai to courts, not least because these may throw light on earlier development. Three methods were employed successively. In the fifth century the list of 6,000 dikastai was revised annually, but it was divided into a number of panels (conjecturally ten panels), and each panel was assigned for the whole year to one magistrate and hence to the kinds of case which were brought to him. Thus during the year a dikastēs knew in advance what kinds of cases he was to judge and he might even know in advance the names of some accused persons whom he might judge.14 The second method is parodied in the Ekklēsiazousai and the Ploutos of Aristophanes. The dikastai were divided into ten panels, each panel being designated by one of the first ten letters of the alphabet. Each dikastēs retained his letter and his membership in the same panel for a protracted period, presumably for the whole year. On each of the days when courts were to sit panels were assigned by lot to as many courts as were required, the maximum number of courts being ten. Thus in the course of the year each dikastēs sat with the same colleagues in the same panel on every day when the courts gathered, but he did not know in advance what kinds of cases he would judge. This method may have been introduced during the reforms which were begun in 403/2.15 The third method is described by Aristotle as practiced at the time when he wrote. On each day when the courts were to sit two sortitions took place. The first assigned dikastai to as many panels as were needed for the day’s business. The second assigned the resulting panels to the different magistrates, who were to preside at the hearings, and hence to the different kinds of case. The introduction of this final method probably took place soon after 380, when the requirement was introduced that the pleas of litigants and the testimony of witnesses should be submitted in writing.16
The three methods for assigning dikastai to courts amount to a transition from rigidity to flexibility. If one reviews them in reverse order, one might conjecture that at a time still earlier than the earliest of the three methods there was only one panel, available throughout the year, so that only one court could sit on any day. Other considerations support this conjecture. Payment for dikastic service was first introduced on the proposal of Perikles.17 Previously there cannot have been nearly so many men willing to serve. The growth of prosperity, population, and empire in the central decades of the fifth century doubtless brought an increase in litigation. That may be why the need was discovered for more than one court to sit concurrently. In the sixth century and the early part of the fifth it may have sufficed for a single dikastērion to sit on days when trials took place. Further reasons for holding this hypothesis will emerge in section II.
In the language of the orators the usual word for “court” was dikastērion. But occasionally the word hēliaia occurs in contexts where it means the same thing. Thus Demosthenes (23.105 and 114) cites a law about theft and says that it empowers the dikastērion to impose an additional penalty of imprisonment, but the law as given in the manuscripts of the speech empowers the hēliaia to impose the additional penalty. Again the speaker of Antiphon 6 (21, cf. 23) says that his adversary went to “the hēliaia of the thesmothetai” and made an allegation against the speaker; the speaker continues that he himself went to the dikastērion and said something “to the same dikastai”
The oath sworn by dikastai was called “the oath of the hēliastai” or “the heliastic oath.”18 Aristophanes in comedies produced in the fifth century uses the word hēliastēs and the corresponding verb and adjective.19 A law preserved in the manuscripts of Demosthenes concludes with provisions in which the wording is noteworthy:
Let anyone who wishes bring indictments to the magistrates on the counts on which they are the judges (δικασταί). But let the hēliaia decide (διαγιγνώσκειν) the cases.20
The wording of these provisions reflects archaic usage. The distinction between the task of the magistrate and that of the court may become clear below (pages 68, 79–81). Here it suffices to note that the noun dikastēs, best rendered for the classical period as “judge,” was originally used of the presiding magistrate, and the word for the court was hēliaia By the time of Demosthenes current usage had changed. The normal word for “court” was dikastērion and its members were called dikastai. The older word, hēliaia, was preserved in laws.
The comparisons reviewed above show that the classical dikastērion was descended from the hēliaia and was so closely related to it that it could be called by the same name. But linguistic usage reveals a difference. The word dikastērion occurs in the singular and in the plural. The word hēliaia occurs only in the singular. This difference suggests that the word hēliaia was current at an early stage, when only one court met at any one time. Doubtless all sessions were conceived to be sessions of the same court, whatever its personal composition. It can well be imagined that the growth of judicial business in the fifth century first brought the need for many courts to sit concurrently. The only hint that the word hēliaia might develop a plural form is the phrase, “the hēliaia of the thesmothetai” which occurs in two texts from the second half of the fifth century.21 Occurring, as it does, after it had become customary for many courts to sit concurrently, the phrase can be explained as meaning that one of the dikastēria which met under the presidency of the thesmothetai.
One more text calls for note before controversial questions are broached. Demosthenes (23.97) says that at each meeting of the assembly the herald calls down a curse on anyone who deceives the council or the people or the hēliaia From the texts considered in this section so far three conclusions may be asserted with confidence about the archaic hēliaia: (1) it was a court (as indicated by the law on theft, page 60 above); (2) it was closely akin to the classical dikastēria; and (3) in importance it was on a level with the council and with the assembly of citizens.
To inquire into the original nature and function of the hēliaia is much the same as asking how the classical dikastēria developed from the archaic hēliaia. On these questions there are two theories, which can be distinguished as “older” and “newer,” although the “older” theory is still widely held.22 The “older” theory rests on three pieces of evidence. First, in many cities, mostly Dorian, the word aliaia is well attested in the meaning of “assembly of citizens,”23 and so is the cognate word alia in Dorian cities24 and, in the form haliē, in the text of Herodotos.25 This meaning accords well with the verb halizein = “to gather people together.” The second piece of evidence is the statement of Aristotle (AP. 3.5), that before the time of Solon the archons had full authority to decide lawsuits, whereas, he adds, in his own time they could only conduct a proanakrisis (preliminary inquiry). The third piece of evidence is a further statement of Aristotle (AP. 9.1). Listing the three “most democratic” measures of Solon, he gives as the third “the ephesis to the dikastērion,” noting that people say that it most contributed to the power of the multitude. He adds in explanation that the people become master of the constitution once they are master of the judicial vote. Holders of the “older” theory believed that the Greek word ephesis meant “appeal” or something like it.26
The “older” theory held that before the time of Solon lawsuits were judged by the nine archons, according to their different spheres of competence, and the judgment of the archon was final. But, the theory maintained, Solon created a court of appeal, called the hēliaia, and the hēliaia was a judicial session of the assembly of citizens. Thus a litigant who was dissatisfied with the archon’s verdict could appeal to the public assembly sitting as a court; perhaps appeal was only permissible if the value of the object in dispute was above a certain amount. Much later, the theory continued, a change was made in the incidence of popular jurisdiction. The archon’s share was reduced from a trial to a merely preliminary and somewhat formal investigation, and so the case necessarily passed to a popular court, which thus exercised jurisdiction at first instance. Some attributed this change to Kleisthenes and others to Ephialtes.27
The supports for the “older” theory are two tenets: first, that ephesis in Solonian law was appeal, and second, that the archaic hēliaia was not a court of first instance but a court of appeal. The first tenet will be scrutinized at some length, for in addition to the problem considered here, the tenet has a bearing on the further question: what role, if any, did appeal play in Athenian justice? The second tenet will then be examined briefly and recognition of further objections to the “older” theory will lead to presentation of the “newer” theory.
In Athenian judicial contexts the noun ἔφεσις and the related verb έφιέναι are often employed to say that a dispute was transferred from one authority to another, the second being a court.28 In the fourth century private disputes were brought first to an arbitrator (page 58 above). If one party was not satisfied with the arbitrator’s recommendation, he “transferred the case to the dikastērion,” and the phrase employed repeatedly for saying that he did so is έφιέναι εις τό δικαστηριον.29 This act was not appeal, since the recommendation of the arbitrator was not an authoritative verdict, such as could be appealed. But the act was rather like appeal, since it was performed by a litigant and it transferred the dispute from a public organ to a court. Again, when a young man was in his eighteenth year, his father presented him to his fellow-demesmen for enrollment. If they were satisfied of his age, they still had to decide by vote whether he was entitled to enrollment. The language in which Aristotle (AP. 42.1; cf. page 15 above) states the procedure deserves note:
If they vote against him, saying that he is not free, he transfers the case to the dikastērion (ó μεν έφιησιν εις το δικαστήριον). The demesmen elect five prosecutors from among themselves. If he is found not to be entitled to enrollment, the city sells him into slavery. But if he wins the case, the demesmen are compelled to enrol him.
Taken strictly, Aristotle’s language says that the transfer of the case to the court was not a voluntary act of the applicant but was bound to follow the adverse decision of the demesmen. The fact that an unsuccessful applicant would be sold into slavery tells somewhat in favor of taking Aristotle’s language strictly. Much the same can be said about the procedures followed in 346/45, when the list of citizens was revised (page 16 above). Each deme scrutinized its own members, and if a putative member was rejected by his fellow-demesmen, the case was transferred to a court, the word for transfer being ephesis.30
There is less temptation to translate ephesis by “appeal” in the passages where Aristotle describes the scrutiny (dokimasia) of the nine archons. All persons chosen to office had to undergo a scrutiny before taking office. The nine archons originally numbered nine, but in consequence of the reforms of Kleisthenes, distributing citizens into ten phylai, the number was raised to ten, the additional officer having the title of “secretary of the thesmothetai,” although “the nine archons” continued to be the collective name. Aristotle speaks of the scrutiny of these officers in two passages of his account of the Athenian constitution. The first passage (45.3) is neutral for the present purpose:
The council scrutinizes those who are to serve as councillors in the coming year and the nine archons. Previously it had final authority to reject candidates, but now they have ephesis to the dikastērion
This passage shows that the transfer of the scrutiny of the nine archons from the council to the dikastērion was properly called ephesis. The other passage (55.2) is decisive and occurs in Aristotle’s account of the nine archons:
These (sc. the nine archons) are scrutinized first in the council of five hundred, except for the secretary (sc. of the thesmothetai), but he is scrutinized only in a dikastērion like the other officers (for all officers, whether chosen by lot or by election, are scrutinized before taking office). The nine archons are scrutinized in the council and in a dikastērion. Previously a candidate rejected by the council did not take office, but now there is ephesis to the dikastērion and the dikastērion has final authority over the scrutiny.
This passage shows that the transfer (ephesis) of the case from the council to the dikastērion was not the appeal of a disappointed candidate but was mandatory. The secretary of the thesmothetai was a colleague of the other “nine” archons but was scrutinized only in a dikastērion. This fact implies that the other nine had to be scrutinized in a dikastērion. One may wonder whether the scrutiny before the council retained any more than ceremonial meaning, but that is another question.
A further passage, drawn from a speech of 327/26, would enlarge understanding of the concept of ephesis significantly, if the wording of the text were certain.31 The speaker says that he and his adversary, Phormion, agreed on Theodotos as an arbitrator. When they appeared before Theodotos, Lampis gave evidence in support of Phormion; but this testimony was false and contradicted what Lampis himself had said previously. Theodotos, according to the speaker, knew that the testimony was false, but he did not want to make a recommendation against Phormion, since Phormion was his friend. So, according to most manuscripts, έφηκεν ήμας εις το δικαστήριον —”he transferred us to the dikastērion.” But one manuscript (S = Parisinus 2934) gives the reading άφηκεν. The readings of S are usually good, but there is a strong objection to its reading here. That reading does not make sense. In a judicial context άφιέναι means “to acquit.” If accordingly one prefers the other reading, it follows that ephesis was not necessarily the act of a litigant but could be initiated by an arbitrator.
Yet another text may have a bearing on the nature of ephesis. It is an amendment to the Athenian decree laying down rules for the people of Chalkis in Euboia (note 21 [a] above, lines 71–76). The amendment provides that cases of a specified kind, if they arise among Chalkidians, are to be judged by Chalkidian courts, unless a penalty of death, exile, or atimia is envisaged; but where one of these capital penalties is demanded, there shall be ephesis to Athens to the hēliaia of the thesmothetai. Does ephesis here mean a right of appeal for a condemned man to the Athenian court or compulsory transfer of the case to Athens for final settlement (with or without a previous hearing in Chalkis)? Both views have been held. The desire of the Athenians to keep control over Chalkidian affairs after suppressing a revolt provides a clear, though not a decisive, argument for compulsory transfer.32
From the foregoing discussion it appears that ephesis has a much wider meaning than appeal, and such neutral terms as “transfer” and “reference” are to be preferred. Ephesis could be a voluntary act of a party to a dispute when he took the case out of arbitration and into a court. But it could be a mandatory transfer of a case to a court. Even the voluntary act of an arbitrator, who found himself unable to solve a case and referred the parties to a court, was to be called ephesis, if the reading of most manuscripts at [Demosthenes] 34.21 is right. Ephesis as a transfer due to appeal is attested with certainty only in the decree of the phratry of the Dekeleieis (IG. II2, 1237; page 13 above). A provision of this resolution of 396/95 allows anyone whom the phratry has rejected from membership to appeal to the Demotionidai, the verb being έφεΐναι (lines 30–32). Ephesis may also mean transfer by appeal in the regulations for Chalkis.
Since appeal is attested with certainty only in the rules of a phratry, it cannot be proved that the organs of the city, as distinct from smaller associations, ever provided in the administration of justice a procedure of appeal, that is, a procedure whereby a disappointed litigant could challenge voluntarily the authoritative decision of a judge by approaching a higher court. The probabilities deserve a little further consideration, because the question bears on the nature and development of Athenian justice. Appeal is only likely to play a significant part in the development of justice if public authority is relatively strong and, in particular, if it is strong enough to have some prospect of enforcing the judgment delivered in a court of first instance. As long as public authority is too weak to enforce that judgment, a defendant who has lost his case has no reason to appeal. He can ignore the judgment. Indeed a system of law can reach a high level of sophistication without providing for appeal. Appeal played no significant part in the formulary procedure of Roman law.33 Modern students of Athenian justice have perhaps expected to find a procedure of appeal because they are accustomed to the appellate systems of modern times. Public authority is far stronger in the modern nation-state than in archaic or even classical Athens. Moreover, modern systems of jurisdiction have developed from the authority of kings as the fount of justice. The consequence is formulated well in the Swabian Lantrehtbuoch or Schwabenspiegel: “The emperor cannot be in all lands and he cannot put right everything that is wrong. Therefore he deputes secular jurisdiction to the princes and the other lords.” The assumption that courts should form a hierarchy, linked by a procedure of appeal, originates from the authority exercised by medieval kings, but it is so ingrained in the modern mind that it is present in that far from monarchical document, the Constitution of the United States; that provides (III,1) for “one Supreme Court” and “inferior courts” and (III,2) it entrusts to the Supreme Court in many cases “appellate jurisdiction.” One should not suppose that the monarchical idea, with its consequences for jurisdiction, was current in archaic Athens. A different hypothesis about the origin of judicial litigation in Athens will be entertained below (section IV).
The “older” theory about the archaic hēliaia drew on Aristotle’s statement, that Solon introduced “the ephesis to the dikastērion,” and understood ephesis as appeal. But in view of the preceding discussion it is neither certain nor even likely that Aristotle meant “appeal” by ephesis The other support for the “older” theory was the tenet that the archaic hēliaia was not a court of first instance but a court of appeal. The law about theft, preserved in the manuscripts of Demosthenes 24.105 (cf. page 60 above), provides evidence against this. It reads:
Whenever someone loses something, if he recovers it, condemn to a two-fold fine, but if not, to a ten-fold fine in addition to the payment for responsibility. Let him be confined by the foot to the stocks for five days and five nights, if the hēliaia imposes this additional penalty. Let anyone who wishes propose the additional penalty, when the level of penalty is under discussion.
An archaic date for the origin of this law is indicated by the brevity of the phrasing, which omits words for “victim” and “defendant,” and by the word here translated as “payment for responsibility” (epaitia), the nature of the thing being unknown. The law assumes that, as in later Athenian procedure, a session of the court to ascertain guilt will be followed, if guilt is determined, by a session to assess the penalty. The latter session is the occasion when the additional penalty of the stocks can be proposed, and the body which has authority to impose this additional penalty is the hēliaia. Obviously the question of penalty must be considered, after a finding of guilt, when the case is tried at first instance; one cannot wait for the convicted man to appeal before one assesses the penalty. It follows that in this archaic law the hēliaia was a court of first instance.
There are two other objections to the “older” theory. First, that theory supposes that the hēliaia was originally a judicial session of the assembly of citizens, that is, the early hēliaia was the same in composition as the ekklēsia. But one had to be beyond one’s thirtieth year of age to qualify for service as a dikastēs,34 and one had to swear the dikastic oath. Membership in the ekklēsia was open to male citizens who had come of age in their eighteenth year (cf. page 15 above). Even if one supposes that the numerical determination of the age of majority was a relatively late substitute for proving manhood by bearing arms, it is not possible to identify the potential dikastai or hēliastai, restricted by an oath and an age of thirty, with the whole body of adult male citizens.
Second, the “older” theory holds that there was a change in the incidence of popular jurisdiction. At first it was exercised on appeal but later at first instance. The change was important, and so holders of the “older” theory have asked when and how it came about. Aristotle attached political importance to the power exercised by the popular courts in his own day, but he does not say when or how the supposed change in the incidence of popular jurisdiction took place. On the contrary, he has two statements on the origin of the power which he discerned in the popular courts, and the two statements are mutually compatible. In tracing the history of the Athenian constitution he says that Solon introduced ephesis to the dikastērion, he notes that this most contributed to the power of the multitude, and he explains that the people become master of the constitution once they are master of the judicial vote (AP. 9.1; cf. page 62 above). In the Politics (2.1273b41–1274a2) he says:
Solon, it seems, did not destroy these institutions which existed before, namely the council and the mode of choosing the officers, but he established the people in power by having the dikastēria chosen from them all.
Surely, since Aristotle attached political weight to popular jurisdiction and since he says nothing else about the introduction of popular jurisdiction at first instance, it is best to see in these two statements, the one in the account of the Athenian constitution and the other in the Politics, two aspects of the same occurrence, as reconstructed by Aristotle. That is, in his opinion what Solon brought into being was popular jurisdiction at first instance.
Two arguments on which the “older” theory draws still call for note. One is derived from the use of aliaia and alia to mean the assembly of citizens in some other cities, mostly Dorian. This argument has little weight. No Athenian text identifies the hēliaia with the whole body of citizens. At Tegea aliastai are attested as a court (note 23 above) and they need not be identical with the citizens in general. The basic sense of aliaia/hēliaia may be merely “a gathering of people”; the municipal law of each city could determine which gathering was meant.
The other argument has more force. As commonly understood, Aristotle (AP. 3.5; cf. page 61 above) says that before the time of Solon the archons had full authority to decide lawsuits, whereas in his own time they could only conduct a proanakrisis (preliminary inquiry). Surely this text indicates that jurisdiction was originally exercised by an authoritative magistrate; what could be more likely than that the first step toward diminishing his authority was the institution of a popular court of appeal? The history of provocatio ad populum in the Roman Republic may be called to mind as a model. Those convinced for reasons given above that the “older” theory is mistaken may answer this argument by saying that Aristotle was mistaken in his reconstruction of the conditions obtaining before Solon. It is indeed difficult to see that he could have had much good information. But a more elegant solution to the difficulty is possible.35 In the time of Aristotle each lawsuit began when the two parties appeared before a magistrate for a preliminary hearing, but often the defendant responded to the plaintiff’s plea by having recourse to the procedure of paragraphē, introduced in 401/0 (page 54 above). That is, the defendant asserted that the plaintiff’s plea was inadmissible. In this way the procedure of paragraphē took the decision on the admissibility of the plea out of the authority of the magistrate and entrusted it to a dikastērion; if the court found that the plea was admissible, a further trial on the main issue followed. Aristotle’s point may be that before the time of Solon, as indeed for a long time afterward, the magistrate had authority to determine the admissibility of the plaintiff’s plea. The later practice of paragraphē reduced the magistrate’s anakrisis to proanakrisis.
The outlines of the “newer” theory have perhaps begun to emerge. Its central tenet is that the popular court of Solonian law, the hēliaia, exercised jurisdiction at first instance. It was not a special session of the assembly of citizens, it was not a panel drawn from that assembly, it did not derive its authority from that assembly. It was the parent of the classical dikastēria, from which it differed mainly in that the dikastēria were many, but the archaic hēliaia was one. Presumably a minimum age of thirty and an oath were required of archaic hēliastai, as of classical dikastai. An important feature of the language of the Attic orators supports the belief that the dikastērion did not, in principle or in history, derive its authority from the public assembly. In the speeches of the orators the words dēmos and ekklēsia are equivalent. That is, the people who gather in assembly are equivalent to the body which they constitute by gathering together. But in the speeches the word dēmos is hardly ever treated as equivalent to dikastai or dikastērion.36
Some questions remain for holders of the “newer” theory. What, for example, was the size of the hēliaia of Solon? Whether the figure of 501, the standard size of a classical dikastērion, was feasible depends on an estimate of the number of people able to serve without salary in the time of Solon. No answer can even be conjectured. There is a more important question. If the Solonian hēliaia exercised authority independent of the assembly, whence did the hēliaia arise? Did Solon devise it solely from his own thinking, with no model to draw on? Or, at the other extreme, did he find it in existence and merely define and perhaps extend the type of cases which it could hear as he wrote the laws down? This question admits no decisive answer, but hints toward an answer will be derived shortly from study of the courts for homicide. Meanwhile it is appropriate to note a feature of Solon’s work. The best attested thing about him is that he wrote laws. The Athenians thought that the laws provide for many situations, but other situations arise in the gaps between the laws and must be decided by the courts.37 This belief is reflected in the opening of the dikastic oath: “I will vote in accordance with the laws and with the decrees of the people of Athens and of the council of five hundred, and on matters where there are no laws, I will vote in accordance with the most just opinion.” If Solon held this Athenian belief, it would make sense to suppose that he wrote laws, on the one hand, and provided, on the other, that matters not covered by the laws should be decided by the hēliaia.
Five courts met under the presidency of the king-archon to try the private action for homicide. Aristotle (AP. 57.3–4) states the competence of each briefly and Demosthenes (23.22–99) discusses their competence at greater length. Probably both authors draw on the code of 403–399. The competence of the five courts may be summarized thus.
1. A court met at the Areopagos to try these charges:
of voluntary killing or wounding,
of poisoning, provided that the accused was alleged to have administered the draught himself and provided that death ensued,
of arson.
The judges were the members of the council of the Areopagos.
2. A court met at the Palladion to try these charges:
of involuntary killing and wounding,
of instigating homicide, if the accused admittedly did not kill with his own hands but employed an agent,
of killing a slave or a metic or other alien.
The judges were the ephetai.
3. A court met at the Delphinion to try the charge of homicide, if the accused admitted homicide but said that his act was justified by one of the grounds recognized explicitly in the law about this court.
The judges were the ephetai.
4. A court met at Phreatto if a charge of a further act of homicide or wounding was brought against someone who was already in exile for an act of homicide on which the law offered a prospect of reconciliation with the victim’s relatives. The accused attended in a boat.
The judges were the ephetai.
5. A court met at the Prytaneion to judge animals and inanimate objects which had caused death.
The judges were the king-archon and the four “kings” (phylobasileis) or headmen of the four traditional phylai (page 108 below).
Little attention need be given to the fourth and fifth courts, since they did not influence the development of jurisdiction. Speaking of the court which met at Phreatto, Aristotle (Politics 4.1300b28–30) says that such cases are few “even in large cities.” The court of the Prytaneion met if the killer had not been identified but the instrument with which he caused death had been discovered. The activities of this court were merely formal and it is scarcely to be called a court. The competence of the court meeting at the Delphinion was clearly defined. The allocation of a case to that court depended on a plea entered by the defendant. Its sphere will require brief scrutiny shortly, but attention must first be given to the Areopagos and the Palladion.
Athenian legend said that as a court for trying homicide the Areopagos had been founded when Poseidon prosecuted Ares for killing the former’s son.38 When Aischylos composed the Eumenides in 458, he considered himself free to ignore this legend and invent another, which said that the Areopagos was founded as a court for homicide by Athena to try Orestes for killing Klytaimestra. It would be mistaken to infer from these legends that the Areopagos acquired the function of trying homicide at an early date. Mythical time is not an extension of historical time but a different dimension. Myth is not a clumsy attempt to write history but an intellectual enterprise of a different kind. There is another and slightly better reason for supposing that the Areopagos acquired its task of trying homicide at an early date. Its sessions as a court for homicide were restricted to the twenty-seventh, twenty-eighth, and twenty-ninth days of each month,39 and this restriction might be explained as early. But it can be explained better by the piety of the Athenians, a quality in which they distinguished themselves all through the classical period.
One can best discover the relative antiquity of the Areopagos and the Palladion as courts for homicide by examining the distribution of competence between them. Many historians, guided by the legends which were noted above, have supposed that the Areopagos was at first the sole court for trying homicide, and that the Palladion and the other courts of the ephetai came into being when the Areopagos deputed parts of its competence to them. On this view the ephetai, whose identity is not securely attested, would perhaps be a commission drawn from the Areopagos. But this view has difficulty in explaining the distribution of competence between the Areopagos and the Palladion. Some holders of the view have thought that the crucial distinction was between the charges of voluntary and involuntary homicide. But that distinction does not account for the varied competence of the Palladion. The charges of instigating homicide and of killing a slave or an alien cannot be subsumed into a category of involuntary homicide.
A clue toward a better hypothesis is provided by a remark of Plutarch. The Athenians attributed their laws on homicide to a lawgiver called Drakon and they believed that Drakon’s activity was earlier than that of Solon. Plutarch (Solon 19.3) says that Drakon did not mention the Areopagos in his laws on homicide. So one may suppose that the ephetai were the earliest court for trying homicide and originally they tried charges of homicide of all kinds. On this hypothesis a later reform transferred trial of some charges to the Areopagos. The content of the reform can be discovered by examining the classical competence of the Areopagos and the Palladion. The reform empowered the Areopagos to try the charge of killing or wounding an Athenian citizen voluntarily with one’s own hands. “Killing or wounding” included poisoning and arson. On this view the apparently miscellaneous competence of the Palladion in the fourth century is fully explained. The competence of the Palladion is the residue left to it after the reform transferred limited competence to the Areopagos. Evidently the reformers considered the offense of killing an Athenian citizen voluntarily with one’s own hands peculiarly heinous. Apparently by transferring competence over that offense to the Areopagos they wished to provide special protection for Athenian citizens. Thus the reform presupposes that the distinction between citizens and aliens was known and important, and that provides some indication of its date. In chapter 6 an attempt will be made to discover how the distinction between citizens and aliens grew in significance.
Jurisdiction over homicide was not the earliest kind of judicial competence exercised by the Areopagos. The law of amnesty attributed to Solon is likely to be authentic,40 since it mentions his archonship as an epochal date and the lack of symmetry in its phrasing is archaic. It exempts from the amnesty people who had been condemned for homicide or massacre or for attempted tyranny. It names as courts the Areopagos, the ephetai, and the Prytaneion. The distribution of the named charges between the named courts can be reconstructed for the pre-Solonian period, to which the law refers. Charges of homicide and of massacre belonged to the ephetai or, if the killer had not been identified, to the Prytaneion (page 70 above). Charges of attempted tyranny belonged to the Areopagos. Aristotle (AP. 8.4) attributes to Solon a law empowering the Areopagos to try the charge of “conspiring for the overthrow of the demos.” This definition of the offense is not archaic, for the term “overthrow of the demos” belongs to the fourth or fifth century. If there is authentic tradition behind Aristotle’s attribution of this law to Solon, it should reflect an archaic practice whereby the Areopagos tried the charge of attempted tyranny.
Attention may be given next to the competence of the Delphinion. A law preserved in the manuscripts of Demosthenes (23.53) gives more fully than Aristotle (AP 57.3) the grounds on which the defendant could plead that homicide was justifiable, and the authenticity of the provisions which are crucial to the present argument is guaranteed by the orator’s subsequent discussion (23.54–55). The text says:
If someone kills someone involuntarily in athletic competition, or on overcoming him on the road, or in warfare on mistaking his identity, or on taking him in adultery with his wife or with his mother or with his sister or with his daughter or with the concubine whom he keeps for begetting free children, let the killer not go into exile on these counts.
No satisfactory definition can be offered for the category of killing someone on overcoming him on the road. The other categories can perhaps be explained by invoking a hypothesis stated at the end of chapter 2 (pages 30–31). Originally each householder was master of his house, and the open space between houses was no-man’s-land. As time passed, public authority intruded step by step into no-man’s-land by seeking to maintain the peace there. Justifiable homicide can be explained as homicide committed in places where public authority does not maintain the peace. Killing of the adulterer is justified because adultery is characteristically an unauthorized intrusion into the house. Killing of a fellow-citizen by mistake in warfare is justified because the state does not maintain the peace on the field of battle. Involuntary killing in athletics occurs in a place where public authority does not presume to restrict violence. Possibly the same explanation could be formulated for the elusive category of killing someone on overcoming him on the road.41
The central hypothesis presented in this section so far is that the ephetai were the earliest court instituted for homicide. That is, when the state began to intrude into the previously private sphere of retaliation, it created the court of the ephetai. So attention must be paid to indications of retaliation for homicide in early Greek thought, which is represented by the Iliad, and in early Attic law. The key word is poinē. It has a clear etymology, since it corresponds in its components to Lithuanian kaina = “price.” In the Iliad poinē is often wergild, that is, the payment which the killer makes to the victim’s relatives in compensation for the loss which they have suffered through the act of homicide.42 Some extensions of this sense are easy to explain. Poinē can be the death inflicted by the victim’s relative on the first killer, if the latter does not pay compensation.43 The injury inflicted in retaliation may be less than death. The harm which Odysseus inflicted on the Kyklops for eating his companions is called poinē in the Odyssey (23.312–13); here the word approaches its later meaning of “penalty.” Another extension of meaning appears when Achilles is said to have set aside twelve Trojan captives as poinē for Patroklos (Iliad 21.26–28; cf. 23.175–77); they were to be sacrificed on his funeral pyre.
Greater interest attaches to occurrences where poinē is associated with acts not of killing but of kidnapping. Zeus gave Tros a present of horses as poinē for his son Ganymedes (Iliad 5.265–66). When the Greeks and the Trojans decide to entrust the issue of their dispute to a duel between Alexandros and Menelaos, Agamemnon makes three undertakings (Iliad 3.281–91). First, if Alexandros kills Menelaos, Alexandros is to keep Helen and the Greeks will sail away. Second, if Menelaos kills Alexandros, the Trojans are to restore Helen and pay compensation to the Greeks. But third, if Menelaos kills Alexandros and the Trojans do not abide by the second provision, Agamemnon will stay and fight “for the sake of poinē” (290) until he brings the war to an end.
Judging from these occurrences, the basic sense of Homeric poinē is a payment of valuables made to prevent the outbreak of a feud. The acts which could provoke a feud are characteristically homicide and kidnapping. These are the acts in which one group of people deprives another of a member, each member of the group being regarded as an asset with a value. This basic sense accords adequately with Homeric usage of the related word, apoina. Apoina are the ransom for restoring a living captive, for restoring a corpse, or for sparing the life of an enemy whom one has at one’s mercy on the battlefield.44 By extension, apoina is used of the valuables which Agamemnon offered to Achilles in compensation for the diminution of status which Agamemnon had inflicted in taking away Briseis.45
The notions contained in the Homeric words poinē and apoina are attested, scantily but adequately, in early Athenian law. Apoina is cited from the laws of Solon and explained by the lexicographers as “ransom which one gives on account of homicide or a body.”46 The lexicographers do not say whether the body is alive or dead, but “ransom” paid on account of homicide was surely not ransom but wergild. A law preserved in the manuscripts of Demosthenes forbids ill-treating a killer or holding him to ransom,47 and the word for “holding to ransom” is apoinãn. So it is of some importance that Photios in his Lexikon attributes the verbs poinān and apoinãn to Solon, explaining them by “to hold to ransom.”48 Apoinān in Solon’s usage may or may not have been limited in meaning to the idea of ransom, as in the law just noted, but poinān must have differed in meaning from apoinān, since Solon used both words, and Homeric usage is the nearest clue to the Solonian meaning of poinān. Again, “to repay in a value of twenty oxen” is cited from the laws of Drakon.49 So large a payment can well be imagined to have figured in laws providing compensation for homicide and for severe bodily injury.
Other features of the classical law of homicide can best be explained as relics of self-help and of the early stages in the process whereby public authority intervened to restrict self-help. As late as the time of Demosthenes (23.69) the successful plaintiff was allowed to be present at the execution of a condemned killer, although death was inflicted by public officers. It is easy to explain this provision as a relic of a time when the victim’s relatives killed the attacker, with or without judicial process. Again, as late as the time of Demosthenes (23.72), a man found by the court at the Palladion to have committed involuntary homicide was required to leave Attica within a specified time and by a stated route. The specification of the route to be followed would be inexplicable, if the exile incurred in consequence of involuntary homicide had been intended as a penalty. It is better to suppose that in the eyes of public authority a man found to have killed involuntarily incurred no liability, that public authority was too weak to protect him indefinitely from unreconciled relatives of the victim, and that public authority therefore gave him a safe-conduct to the border and thus a chance to survive.50
An even clearer relic of self-help is the practice of aidesis. The law of Drakon, as reinscribed in 409/8, opened with provisions about involuntary homicide and said which relatives of the victim were authorized to take part in aidesis. A provision several lines lower down on the same inscription said which relatives were to take part in the proclamation issued in the agora against the killer; they were the same as those authorized to take part in aidesis. The proclamation opened the proceedings and was the same for voluntary and for involuntary homicide; indeed it was issued before the ephetai determined whether the killing was voluntary or involuntary. Since the same relatives were to take action at both stages, it is to be presumed that aidesis could take place in consequence not only of involuntary but also of voluntary homicide.51 Therefore aidesis was originally, not a unilateral act of pardon, but the conclusion of an agreement whereby the killer paid compensation to the relatives of the victim and those relatives gave up their right of retaliation.
In a gentler and more secure age relics of earlier conditions were preserved but were understood only in part. Aidesis had taken on a new character by the time Demosthenes (21.43) could write: “The laws on homicide punish those who kill intentionally with death and perpetual exile and confiscation of property, but they consider those who kill involuntarily to be worthy of aidesis and of much kindness.” Aidesis had come to be a unilateral act of pardon, extended by the victim’s relatives to the involuntary killer. Possibly it had become a habitual and immediate consequence of a judicial finding of involuntary homicide. Likewise, exile as a statutory consequence of a finding of involuntary homicide had come to be regarded as a penalty (as Demosthenes [23.73] regards it), even though it may no longer have come about if aidesis was granted habitually. These changes were the consequences of laws which increased the role of public authority in the response to homicide; among those laws the one creating the competence of the Areopagos can be reconstructed in outline (page 72 above).
At the much earlier stage, when public authority first intervened in the previously private sphere of retaliation and negotiation, it created the ephetai as a court for homicide. Probably the consideration which prompted this intervention was an insistence on the distinction between voluntary and involuntary homicide. So much is suggested by the prominence given to provisions on involuntary homicide when the law of Drakon was inscribed anew in 409/8,52 and by the concern for involuntary homicide apparent in scattered passages of Athenian literature.53 Readers of detective fiction might expect the earliest court for homicide to be concerned primarily with the question of fact: who killed the victim? But in actual trials nowadays there is often agreement about the identity of the killer and dispute arises only about his motives or state of mind. As long as self-help was practiced in early Athens, the people entitled to retaliate may often have believed that they knew who had killed their relative; the question for the court to decide was whether the killer had acted involuntarily and was therefore entitled to a modicum of protection.
If the ephetai were the earliest court for homicide, there is a good chance that they were the earliest court of any kind in Athens. But one has still to ask, who were the ephetai? The only good clue to their identity is the fact that for some of their sessions, perhaps for all, they numbered fifty-one.54 This is an intentionally odd number and resembles 501, the standard size of a classical dikastērion. It must be admitted that the resemblance is not a secure basis for inference, but the hypothesis which it invites is that the ephetai were a body of Athenians aged at least thirty years and bound by an oath; fifty-one such men were empaneled when a case of homicide was to be tried. If one thinks on these admittedly conjectural lines, one can narrow the limits for answering the questions raised about Solon at the end of section II. The ephetai furnished the model on which the hēliaia was created. Indeed the two bodies were much alike, but the difference in name may suggest a considerable interval between their dates of origin. It remains an unanswerable question whether Solon created the hēliaia or merely enlarged its scope by writing laws.
The Homeric poems are a large monument of early Greek thought. It would be rash to insist that the ideas expressed in them must be wholly the same as those held by the archaic Athenians. But with caution it is reasonable to seek in them some elucidation of Athenian ideas, since performance of the poems was introduced at the Greater Panathenaia in the sixth century and the Athenians understood them without a commentary. The poems throw some light on the word dikē, which in fully developed Attic is “a lawsuit,” “the judgment of a lawsuit,” or “the case presented by a party to a lawsuit.” In the Iliad and the Odyssey, dikē in the context of a dispute is a settlement of the dispute, whether offered by one of the parties or by a third person serving as arbitrator or judge.55 Thus at the end of the chariot race held in honor of the deceased Patroklos the competitors quarreled over the prizes, and in a single speech Menelaos as one of the disputants both asked the leaders to “state a settlement” (dikazein) and undertook to “state a settlement” (dikazein) himself.56
Greater interest attaches to the sole passage in the poems where a lawsuit is described. One of the designs on the Shield of Achilles shows a city at peace (Iliad 18.497–508):
The people were gathered in the place of assembly. There a dispute had arisen. Two men were conflicting on account of the wergild for a man who had been slain.
ó μέν ευχετο πάντ’ άποδούναι δημω πιφαύσκων, ό δ’ άναι’νετο μηδέν έλεσθαι.
Both desired to get a decision at the hands of a wise man. The people, standing around as partisans, shouted support to each side. The heralds held the people back. The elders sat on polished stones in a sacred circle. They held in their hands the scepters of shrill-voiced heralds. With these they sprang up and they gave judgment in turn. In the middle there lay two talents of gold, to be given to the one among those men who spoke justice in the most straight fashion.
The passage has had much discussion57 and progress has been made in understanding it. It has become clear that the scene is not the voluntary submission of an issue by the parties to arbitration but a true trial. This is shown by the public character of the place, for the elders sit on polished stones in a sacred circle; it is shown, further, by the participation of heralds and by the scepter(s), which each elder holds as a symbol of authority while he utters his judgment. The fact that both disputants are said to have desired to get a decision at the hands of a wise man indicates that the collaboration of the parties was required for the trial, but that does not degrade the proceeding to the level of arbitration. The collaboration of the parties was required in the formulary procedure at Rome.58
Difficulty arises in the passage which has not been translated above. These lines state the pleas of the two parties. The words stating the first plea have been taken to mean
either (a) “the one asserted that he had paid in full and demonstrated this to the multitude,”
or (b) “the one offered to pay in full and demonstrated this to the multitude.”
Strong arguments in favor of (a) have been drawn from the use of euchomai with the aorist infinitive elsewhere in the poems, from the word “in full,” which can be more forcefully predicated of what one has done than of what one offers to do in future, and from the fact that the party demonstrated what he said to the multitude; it makes better sense to demonstrate or make plain allegations of fact about the past than mere intentions for the future. Those who have preferred (b) have been swayed by their understanding of the other party’s plea. The latter plea has been taken to mean
either (A) “the other complained that he had not received anything,”
or (B) “the other refused to accept anything.”
Strong arguments in favor of (B) have been drawn from the fact that anainomai elsewhere in the poems means “to refuse,” not “to deny (a matter of fact)” (Iliad 18.450; 23.204; Hesiod fr. 73 line 4 Merkelbach and West), and from the poet’s choice of mē as the negative; in Homeric Greek, as in classical Greek, mē negates a wish or intention, not a matter of fact.59
In view of the arguments offered above, the best rendering of the passage is:
“The one asserted that he had paid in full and demonstrated this to the multitude, but the other refused to accept anything.”
That is, after the act of homicide took place, some of the relatives of the victim were willing to negotiate an agreement with the killer, and he paid them in full the agreed sum in compensation. But one of the relatives was recalcitrant. He refused to accept compensation and thereby give up his right of retaliation. When the case came before the elders in the scene portrayed on the Shield, the plea of the one party was not a straightforward denial of the plea made by the other party. They were arguing at cross-purposes, or to adopt a phrase preferred by jurists, the issue had not been joined.
When disputes arise, it often happens that at first the parties argue at cross-purposes. Joining the issue is then an important preliminary to bringing the case into court for trial. In the formulary procedure at Rome the first stage, the proceedings in iure before the praetor, were the occasion for joining the issue.60 In classical Athens the first stage of proceedings was the anakrisis before the magistrate, and he determined whether the plea of the plaintiff was admissible. This was the occasion for joining the issue, until in the fourth century the growing popularity of the paragraphē transferred to a dikastērion the decision on admissibility (pages 54 and 68 above). A decision that the plaintiff’s plea was admissible had the effect of joining the issue on that plea.
In the scene on the Shield of Achilles the issue has not been joined, but the parties have come before the elders in expectation of a definitive solution to their dispute. In this respect the proceedings, although a true trial, belong to a stage when administration of justice was still rudimentary. The elders have not been given a question to answer on the basis of the laws. Instead, they have been presented with a tangled dispute, and the parties have some hope that one of the elders may be clever enough to devise a solution which both parties will be willing to accept. The people stand around and shout support for each side. As each elder formulates his proposal, he can take into account the shouts which greeted the proposals of those among his colleagues who have already spoken. Thus he can estimate the degree of political power which each of the parties commands in the community. If one of the elders offers a solution which both parties can accept, he will receive the prize of two talents of gold. If none of them offers such a solution, each of the parties can call out those among the people standing by who have shouted for him and thus he can assert his right by force. That activity could lead to the custom of settling differences by the vote of a majority in a primary assembly, a possible development which will be noted in chapter 6. Another possible development from the scene on the Shield of Achilles would lead to trial by a relatively small council, a body arising from the elders who sit on polished stones. At Sparta the council, called the council of elders, judged capital cases in the fourth century.61 At Athens at an early stage the council of the Areopagos judged charges of attempted tyranny.62
Starting from the practices illustrated on the Shield of Achilles, historical development might lead in more than one direction. There were several possibilities because the administration of justice was still rudimentary. Some forty years ago Wolff (note 57 above) rightly took account of the Shield of Achilles in presenting a theory about the origin of judicial litigation among the Greeks. Rejecting theories which sought the origin in arbitration, he started from a condition where self-help was customary. A party threatened by another party’s imminent act of self-help may seek protection from a public officer. Then, Wolff suggested, the officer may do two things. He extends temporary protection to the defendant, that is to say, to the party who has sought his protection, and he calls together a court to judge the dispute. If the court finds for the plaintiff, the officer withdraws his temporary protection from the defendant, and the plaintiff resumes his act of self-help. On Wolff’s theory “judicial litigation came about . . . through the substitution of controlled self-help for uncontrolled self-help” (p. 82).
Good reasons for holding this theory were presented by Wolff and have been developed somewhat further by Ruschenbusch (note 4 above). It accounts for the vestiges of self-help recognizable in fourth-century proceedings. It explains why a lawsuit in Athens proceeded in two stages with two authorities playing different parts. The first stage, the (pro)anakrisis before the magistrate, arose from the defendant’s original approach to the magistrate and the latter’s decision to grant him temporary protection. At the second stage a different body, the court composed of dikastai, judged the dispute. The formulary procedure likewise had two stages, in iure and apud iudicem, and the same explanation may be valid. The same may be true of other occurrences of procedure in two stages in ancient republics.63
It should be admitted, however, that the scene on the Shield of Achilles lends support to Wolff’s theory only at one point. If the order in which the poet states the two pleas is the order in which they are imagined to be spoken, then the defendant, the man accused of homicide, speaks first. This order conflicts with modern expectations, but it makes good sense, if the defendant has to show that the plaintiff’s act of self-help ought to be suspended temporarily, while the dispute is judged, and abandoned thereafter in return for compensation. But because the proceedings on the Shield are rudimentary in character, they cannot be expected to furnish much illustration of any clear line of development.
Wolff’s theory implies that judicial litigation in the form in which it developed in classical Athens sprang, not from the power of authoritarian kings, but from the efforts of the community and its officers to maintain the peace by restricting the exercise of an acknowledged right of self-help. The type of society which his theory supposes as the starting point is pluralistic. Within it many people have rights and these may come into conflict; organs for the administration of justice are created to ward off the risk of violence. One passage of the Odyssey (12.439–40) suggests a more authoritarian pattern. The poet mentions there the time of day at which a man rises to leave the agora for dinner “when he judges many disputes among the aizēioi who seek justice from him.” Aizēioi here should be understood as men of dependent status, who are subject to a master. Hesiod (Works 441) uses aizēios of the hired laborer who follows the plough, and Horace (Carmina 3.5.53–56), perhaps imitating the passage in the Odyssey, used clientes of the men whose disputes Regulus might settle before departing for rural leisure.
The poems of Hesiod reveal little about the administration of justice, but so far as they disclose a pattern, it is authoritarian. Judgments are given by kings or lords (basilēes), who consume “gifts” (dōra). The “gifts” are probably fees, not bribes.64 The duty of the kings to issue straight judgments is spoken of in language resembling that used of the judgments of Zeus.65 Their power cannot be resisted, and they are exhorted to judge justly.66 There is no indication of any division of function between magistrate and court, as in classical Athens. The administration of justice, as portrayed in the Hesiodic poems, is not precarious, as it appeared on the Shield of Achilles. It should cause no surprise to discover that archaic justice sprang from different origins in different parts of Greece. The methods which developed in Athens and become apparent in the classical period presuppose a community whose members learned to collaborate to a considerable degree, through public officers and courts, in order to maintain the peace. A community of this kind is rather more similar to the pluralistic, insecure, and rudimentary conditions shown on the Shield of Achilles than to the monarchical justice portrayed by Hesiod.
The preceding sections of this chapter have been concerned with lawsuits which came about because of disagreement between two private parties. But some lawsuits arose from a different cause, namely, because a private person was alleged to have harmed the interest of the community. Suits of this kind include those arising under the graphē in some of its occurrences (cf. page 54 above) and those arising under the procedure called eisangelia. They may be somewhat later in origin than the earliest form of litigation between private persons (the dikē judged by the ephetai), for they presuppose a community sufficiently self-conscious to recognize its collective interest and institute a procedure for defending that interest. The procedure was very similar to that between private persons. Anyone who wished (ho boulomenos), unless disqualified by civil disability, could initiate action by making a complaint against a named person. The man who had thus initiated action had to continue the proceedings by appearing as prosecutor or plaintiff against the defendant. In the graphē, which came before a panel of dikastai, the similarity of this procedure to the dikē between private persons is obvious and needs no further comment. More must be said about eisangelia
Recent studies have clarified much in the history of eisangelia, and only some of its features call for note here.67 In most of its occurrences eisangelia resembled the dikē and the graphē in that it proceeded in two stages, the final stage being a trial before a dikastērion. As in the graphē, any Athenian not disqualified by diminution of civil rights could initiate the procedure of eisangelia. This procedure was employed most often against generals and politicians on major political offenses (such as betraying ships or land forces to the enemy, or giving deceptive advice to the assembly in return for bribes). In the classical period the distinctive feature of eisangelia was that the first stage was not a preliminary inquiry before a magistrate but a hearing before the assembly of citizens or before the council of five hundred. Two questions need not be pursued here: whether eisangelia was only available for offenses stated in the nomos eisangeltikos,68 and what role was played in the archaic period by the council of the Areopagos in the development of eisangelia,69
A distinction of form can be recognized between eisangelia of two kinds:70 sometimes the first hearing was before the council and sometimes before the assembly. If the prosecutor brought his indictment to the council of five hundred, the first hearing took place before that council, and if the council found that the case against the defendant was strong enough and important enough to deserve trial before a dikastērion, the resolution voted by the council was called a katagnōsis and the transfer of the case to the dikastērion was ephesis But the council had authority to impose a fine not exceeding 500 drachmas without referring the case to a court.71 If on the other hand the prosecutor brought his indictment to the assembly, that body had to decide, probably in a brief manner, whether to pursue the matter. If it decided to do so, it instructed the council to inquire into the allegation. The council’s subsequent report was a probouleuma, or recommendation addressed to the assembly. At a further session the assembly received the probouleuma and deliberated on it; this was the first stage of proceedings, comparable to the preliminary inquiry before a magistrate in a graphē. If the assembly at this stage found that there was a prima facie case against the defendant, it usually referred the case to a dikastērion for trial.
Starting from this procedure of eisangelia, as practiced in the fifth and fourth centuries, one may look back to reconstruct its origin. Surely one may suppose that the development of eisangelia toward articulate form began one day in the archaic period, when someone told the assembled Athenians that something was not as it ought to be and the assembled Athenians had become sufficiently conscious of their common interest to take remedial action, in however simple a form. A not dissimilar occurrence took place in the developed conditions of 415. The assembly had gathered to consider matters raised by the three generals, who had been commissioned to conduct an expedition to Sicily, but Pythonikos stood up at the meeting and said:
Gentlemen of Athens, you are despatching an expedition and such great preparation and you are preparing to undergo danger. But I will demonstrate to you that Alkibiades the general performs the mysteries with others in a house, and if you vote immunity to the man for whom I request it, a slave of one of those men there will tell you the mysteries, although he has not been initiated; otherwise do with me as you wish, if I do not tell the truth.72
An inquiry and trials followed. It may sometimes have happened that a private person offered the assembly information about an alleged impropriety, but was told in the subsequent discussion in the assembly that a graphē was available to provide a remedy and so he should address himself to the appropriate magistrate. As time passed, the field of business covered by graphai grew, but eisangelia remained available and was often employed against generals and politicians.
The assembly could deal in an arbitrary fashion with people not protected by law. The decree passed by the Athenians in 446/45 to regulate their relations with Chalkis required the council and the dikastai to swear an oath, and one of its provisions was:
I will not drive the Chalkidians out of Chalkis, and I will not destroy their city, and without trial I will not deprive any private person of his civil rights or penalize him with exile or seize him or kill him or deprive him of his property without the demos of the Athenians.73
This provision implies that the Athenian assembly could by vote impose the named penalties on a Chalkidian without allowing him trial. Such a decision of the assembly, had it taken place, could better have been classified as an administrative act than as a trial. In the modern phrase, the accused Chalkidian would not have had due process, that is, a hearing according to the applicable laws and customs. What safeguards were there for due process, if an Athenian was indicted by eisangelia?
Athenian tradition, reported by Aristotle (AP. 9.1), said that Solonian law provided ephesis to the dikastērion (cf. pages 61–66 above). So the question becomes, was ephesis to the dikastērion observed in cases prosecuted by the procedure of eisangelia? For eisangelia to the council the answer is clear. The council had authority to impose a penalty not exceeding a fine of 500 drachmas, but if the alleged offense called for a more severe penalty, the case was transferred to a dikastērion. For eisangelia to the assembly the record is a little less clear. After compiling a catalogue of all known examples, Hansen (Eisangelia, 51) found that, among cases of eisangelia to the assembly where the final forum is known, eighty-six were referred to a dikastērion for trial, but eleven cases were determined by the assembly. These eleven cases may be listed as follows. Some of them do not necessarily infringe the principle of ephesis to the dikastērion
1. The second trial of Miltiades, 489. Herodotos (6.136; cf. Plat. Gorg 516d–e) says that Xanthippos brought Miltiades before “the demos” and that “the demos” refused to condemn him to death but sentenced him to a fine of fifty talents. Herodotos has said previously (6.104.2) that the first trial of Miltiades (493) took place before a dikastērion. So his specification of the assembly as the forum for the second trial should be respected.
2. The trial of Hipparchos son of Charmos. This trial is known only from a brief remark of Lykourgos (1.117), who says that Hipparchos did not await judgment “in the demos” on the charge of treason but left the case undefended and was condemned in default to death. Hipparchos was ostracized in 488/87. He may well have been removed by ostracism before the trial took place, or possibly the “trial” mentioned by Lykourgos is a confused recollection of the ostracism.74 The brief statement of the orator, made a century and a half after the event, is a poor basis for inference. But if Hipparchos was tried, it is likely that judgment was given by default, and if so, there was no breach of the principle of ephesis to the dikastērion A defendant’s right of access to the court is not infringed if he does not come to court to defend himself.
3. The trial of eight generals, of whom only six were present, after the battle of Arginousai, 406/5. Xenophon (Hellenika 1.7) gives a full account. The probouleuma of Kallixenos, under which the eight men were tried, recommended that the assembly should take a single vote to determine finally the guilt or innocence of them all. Euryptolemos proposed to indict this probouleuma as contrary to the laws, but he was deterred from doing so by threats in the assembly (1.7.12). The occurrence of intimidation suggests that the probouleuma was indeed contrary to the laws. But the complaint voiced by Euryptolemos, as far as known, was that a single vote was to be taken on all eight men (1.7.26 and 34), not that there was no provision for ephesis to the dikastērion. So the objection of Euryptolemos may have admitted that the assembly had authority to determine the cases finally, provided that it tried each man separately. Another argument uttered by Euryptolemos points to the same conclusion and will be considered below.
4. The trial of Ergokles, 389.75 As general he had served with Thrasyboulos on the Asiatic coast but was recalled and prosecuted. Philokrates, the associate and treasurer of Ergokles, was also prosecuted. The trials are known from two speeches of Lysias, Against Ergokles (28) and Against Philokrates (29). The former was addressed to the assembly (28.1). It shows that the assembly debated the alleged guilt of Ergokles, but that does not exclude the possibility that the case was transferred to a dikastērion after the assembly had voted that there was a prima facie case against Ergokles. The speech Against Philokrates was delivered before dikastai (29.1, 2, 7, 11 fin.). One sentence (29.2) of this speech reports the outcome of the trial of Ergokles; addressing dikastai, the speaker tells them that they condemned Ergokles to death. The verb used of the decision is cheirotonein; used strictly, this verb indicates a vote by a show of hands, as in the assembly, not a vote taken by casting counters, as in a dikastērion. On the other hand, the speaker tells his hearers, who are dikastai, that they condemned Ergokles; by identifying his hearers with the people who condemned Ergokles he may imply that Ergokles was condemned by a dikastērion. Yet the identification may be loose; the speaker may mean that Athenian citizens, such as the dikastai whom he addresses, condemned Ergokles. It is further possible that the speaker’s brief statement conflates two stages in the trial of Ergokles; the assembly voted against him by a show of hands and then dikastai heard and condemned him. The proper conclusion is that one cannot tell whether Ergokles was finally condemned by the assembly or by a dikastērion.
5 and 6. The trials of Thrasyboulos of Kollytos, 387/86 and after (?). In 353/52 the speaker of Demosthenes 24 (134) said: “You all remember that Thrasyboulos of Kollytos was twice arrested and was judged in the assembly at both trials.” In 382 the speaker of Lysias 26 (21–23) said that Thrasyboulos had betrayed Athenian ships and made the Athenians deliberate about survival. The reference was to the defeat of the Athenians in 387/86; Antalkidas outmaneuvered the Athenian forces in the Hellespont and also captured the eight ships which Thrasyboulos brought as reinforcements from Thrace.76 One or both of the trials of Thrasyboulos was a consequence of this disaster. But in 382 Thrasyboulos was free to plead at the dokimasia of an archon (Lysias 26.21). So the outcome of the trials was probably acquittal, since the most likely penalty for betraying ships was death. Accordingly, if it is accurate to say that Thrasyboulos was judged in the assembly, there was still no breach of the principle of ephesis to the dikastērion. The assembly found that there were no adequate grounds for trying Thrasyboulos. Thus it acquitted him without passing the case on to a dikastērion.
7. The trial of Timotheos, 373. On this case the record ([Demosthenes] 49.9–10) is clear. Attacked by Kallistratos and Iphikrates, Timotheos stood trial in the assembly. His relatives and friends, including Alketas of the Molossoi and Jason of Pherai, interceded for him. The occurrence was sensational. The assembly acquitted Timotheos.77 In this case certainly, as probably in the trials of Thrasyboulos, no question arose of allowing or denying ephesis to the dikastērion
8. The trial of Antimachos, 373. The same text ([Demosthenes] 49.10) says that the Athenians judged Antimachos, the treasurer of Timotheos, in the assembly, and that they executed him and confiscated his property. If this is a full account of the trial, it would appear that the principle of ephesis to the dikastērion was not observed. On the other hand, the orator says far less about the trial of Antimachos than about that of Timotheos. It is a tenable, though unsupported, hypothesis that the assembly found good grounds for trying Antimachos and sent the case on to a dikastērion for final disposition, and the speaker of [Demosthenes] 49, pleading eleven years later, mentioned only the hearing in the assembly because that was the more memorable stage of the proceedings.
9. The trial of Timagoras, 367. On his return from the Persian court, Timagoras was denounced by his fellow-envoy, Leon. Speaking in 343/42, Demosthenes says that the demos sentenced him to death by a vote; the verb chosen for voting is cheirotonein.78 Thus the scanty evidence suggests final decision of the case by the assembly. But since the remark of Demosthenes is brief and was made more than twenty years later, it is not impossible that the hearing in the assembly was followed by a hearing in a dikastērion, but the guilt of Timagoras became so manifest or notorious at the hearing in the assembly that the hearing in the dikastērion was not memorable.
10 and 11. The trials of Kallisthenes and Ergophilos in 362. Both men had been generals in 363–62. Kallisthenes operated against Amphipolis; Ergophilos operated in the Hellespont. Aristotle (Rhetoric 2.1380bl0–13) says that the demos condemned Kallisthenes to death on the day before it acquitted Ergophilos. Aischines (2.30) says that Kallisthenes was executed by the demos. The treatment of Ergophilos does not conflict with the principle of ephesis to the dikastērion. The assembly found that there was no case against him. The treatment of Kallisthenes appears to conflict with that principle, as far as the scanty evidence indicates. It is conceivable that the case of Kallisthenes was sent to a dikastērion after the vote of the assembly, but Aristotle and Aischines omitted to mention the final stage, since it was relatively unimportant. But this hypothesis is weak, since Aristotle and Aischines are independent witnesses to the tradition.
The eleven cases, in which the hearing of eisangelia before the assembly has been considered final, have now been surveyed. There was probably no conflict with the principle of ephesis to the dikastērion in the trial of Hipparchos, if he was not in Athens to defend himself and judgment was given against him by default. There was no conflict with that principle in the trials of Timotheos and of Ergophilos or probably in those of Thrasyboulos, since the hearing before the assembly issued in a vote of acquittal and there was no case to defend before a dikastērion Among the eleven cases the one of which a full account is extant is the trial of the generals after Arginousai. As Xenophon’s narrative shows, the Athenians regretted the occurrence afterward and they did not consider it due process, but it is not clear that the omission of ephesis was their reason for regret. The principle of ephesis to the dikastērion was breached in the second trial of Miltiades and perhaps in that of Ergokles. The inference that it was breached in the trials of Antimachos, Timagoras, and Kallisthenes can be avoided by a tenable, but gratuitous, hypothesis.
Further light on the power of final disposition apparently exercised by the assembly is thrown by an argument which Euryptolemos offered when he opposed the probouleuma of Kallixenos on the trial of the generals. He suggested two procedures as preferable. One was furnished by the decree of Kannonos. This decree said that, if anyone injured the people of Athens, he should be arrested and he should answer the charge “in the demos”; if convicted, he should be executed by being thrown into the pit. The other procedure was furnished by the law on hierosyloi and traitors. This provided that the accused should be tried in a dikastērion; if convicted, he should not be buried in Attica.79 Comparison of the two procedures, as stated by Euryptolemos, shows that the decree of Kannonos provided for trial in the assembly without any ensuing trial in a dikastērion Euryptolemos, who insisted on due process, found that procedure acceptable, provided that each accused person was tried separately.
It must be concluded that in the fifth century and the first half of the fourth the assembly could pass final judgment in cases of eisangelia. Such occurrences seem to have been infrequent, although possibly some have escaped record. It is important to note that the trial of Kallisthenes was the last known occurrence of this kind. Thereafter every case of eisangelia to the assembly was referred by the assembly to a dikastērion for final disposition. It has therefore been suggested that some years after 362 legislation was passed to safeguard the principle of ephesis to the dikastērion.80 Part, though probably not all, of the legislation may be recognized in a law given in the manuscripts of Demosthenes 24.63. The law purports to have been proposed by Timokrates and ratified by nomothetai an appreciable time before the date of speech 24 (353/52). The law concerns people accused by eisangelia to the council. If the council finds that there is a prima facie case against the accused, who is accordingly held in prison, but if the council fails to hand over the katagnōsis to the thesmothetai as required by the law of eisangelia, then the law of Timokrates orders the Eleven, who have charge of the prison, to bring the accused before a dikastērion within thirty days. This law institutes a procedure to ensure prompt trial of persons indicted in eisangelia to the council, and it brings in the Eleven as the agency to bring the case into court. One may easily suppose that in a similar spirit and about the same time a law was passed about persons indicted by eisangelia to the assembly. Like the law of Timokrates, the other law may have employed the Eleven as its agency and may have instituted a procedure to ensure prompt trial before a dikastērion.
This chapter has tried to reconstruct in outline the history of the administration of justice in Athens. It has treated some matters in summary fashion but has gone more thoroughly into others, where a principle of jurisdiction was to be discovered. The division of each proceeding into two stages, a preliminary hearing before an organ of varying character and a definitive trial before a court, has served as a clue for tracing origins, development, and jurisdictional goals. It has become clear that Aristotle was right in attaching importance to “ephesis to the dikastērion.” That principle can be expressed in modern terms as a right of access to the court. It probably emerged first in the treatment of homicide and was extended, in or before the work of Solon, as other kinds of pleas were introduced. In Athenian society the principle of access to the court was a crucial means to achieve the rule of law. In all systems the rule of law is somewhat vulnerable, especially in cases which have political overtones. In Athens cases of political character were often tried under the procedure of eisangelia to the assembly. So it need cause no surprise that in some such cases the accused did not get access to the court. This abuse ceased toward the middle of the fourth century. On the whole, the Athenian record for procedural miscarriages of justice is enviably short.