Notes in red are
comments by me rather than my summaries of what is in the book
v Some general issues
Ø Central government, legal systems, courts, legislature, but
Ø Many tens of thousands of citizens with the same status--no king, nobles
Ø Officials almost all chosen by lot for a year
v Prosecution
Ø Perhaps originally by magistrates, but ...
Ø Private case is prosecuted by the victim
Ø Public case by any free adult male, in some cases only a citizen,
Ø Murder older than that distinction (Drakon)
§ Not given any of the labels (Graphe etc.) used for other cases
§ Could be prosecuted by relative of the victim
§ Perhaps by anyone (citizen?), but that isn't clear.
Ø And some (minor) offenses only prosecuted by appropriate magistrate?
Ø And ten magistrates with the job of prosecuting ex-officials on financial charges at their end of term review
Ø Many different kinds of cases
§ Dike is "case"
§ Defined by public or private
· Graphe is a kind of public case, originally defined by being in writing, apparently.
· Phasis another kind, prosecutor receives half the fine, other differences not known.,
§ By what magistrate/court it was associated with
§ By the procedure for prosecution, for instance
· Arrest defendant, take him to magistrate
· Go to magistrate, must then arrest
· May then arrest
· ...
§ Special class of cases between two or among more people (claim to inheritance, say), rather than prosecutor and defendant
Ø Incentive to prosecute
§ In many cases, there is a fine or forfeit, part of which goes to the prosecutor
§ Or the prosecutor might hope to be paid to settle out of court?
§ Or private animosity, political rivalry
· Demosthenes' was awarded a crown for serving Athens well
· An opponent sued to nullify the award, in part on the grounds that he hadn't
§ Or public spirit?
Ø Incentive not to prosecute
§ In most cases, making an out of court settlement counted as an offense by the prosecutor
§ But there were ways of evading that
· Both parties ask for a postponement because someone is sick
· And never get around to arranging for the trial to be continued
§ Fewer than 1/5 votes in most cases led to
· fine for prosecutor
· And probably disqualification from bringing that kind of suit in the future
§ "Sycophant" was someone who engaged in lots of frivolous prosecution
· He could be prosecuted for being a sycophant
· Once a year by any citizen
· But at most three citizens and three metics could be charged (per year?)
· Could also be prosecuted by an ordinary Graphe or, later, a different procedure for someone who prosecuted a ship master or merchant without justifications
v The laws
Ø Passed by the assembly, although process also involved the Boule
§ Later, proposed law had to be passed by the assembly, then
§ Then approved by the nomothetai
§ Who were originally a selection of jurors, later appointed by the Assembly
§ Still later some procedures for finding problems with existing laws, suggesting changes to the Assembly (Ekklesia)
Ø The written law stated when and how it was passed
Ø Might state how it was to be enforced
§ If it constrained a magistrate, presumably by the normal review at end of term
§ Punishment for violating it might be stated in the law, if not presumably set by the jury
§ Magistrate and court for trial might be stated
§ If not, perhaps implicit by the nature of the offense?
Ø Could only be tried for violating an existing law, apparently
§ But some laws pretty broad, and ...
§ The prosecutor only had to convince a large amateur jury that the defendant had done something covered by a law--it didn't have to be true.
§
And some people
interpret a procedure of accusing people to the Ekklesia or Boule as
available for things that ought to be illegal but weren't (see below)
v [Legal categories of people]
Ø Citizens, foreigners, slaves
§ Citizen if father a citizen
§ Later only if both father and mother
§ Legitimacy apparently not required
Ø Anciently citizens in four hereditary tribes, but reorganized by Solon
§ Everyone in deme based on where he lived ("parish").
§ Demes grouped non-geographically into ten tribes
§ Membership in Deme hereditary, so became gradually less geographical over time.
Ø Deme/tribe organization important for appointment of officials
§ Each deme provided one officer for some offices (ten total)
§ Fixed number of representatives in the Boule (council of 500)
§ Every adult male citizen registered with his deme.
§ At age 18, legal procedure to register, prove age.
Ø Aliens occasionally given citizenship
§ Citizens of cities that allied with Athens--citizenship with some restrictions
§ As a special honor
§ Reward for fighting in the navy in one battle
Ø Outlawry and Atemia
§ Originally, Atemia meant outlawry--could be killed.
§ Came to be distinguished--Atemia was loss of some of the rights of a citizen
§ Could not hold public office, enter temples, etc.
§ Sometimes only partial disfranchisement
§ Penalty if he did things he wasn't permitted to
Ø Aliens
§ Metics are resident aliens
· Had to have a citizen sponsor
· Could use courts, etc., but
· Special taxes
· Had to serve in army or navy if required
§ Not clear if all resident aliens are metics
§ Some aliens, metic or otherwise, got particular rights as rewards
· To own land in Athens
· To pay taxes at the citizens' rate
· To serve in the military with citizens instead of with other metics
· Etc.
Ø Slaves
§ Hereditary, at least if both parents were slaves
§ Could own nothing
§ Owner not free to kill, but could mistreat
§ Slave could take asylum and ask to be bought be someone else
§ Legal action for offenses against a slave taken by his owner
§ And owner is liable for offenses by his slave
§ In fact, some slaves largely independent, paying a share or fixed payment to owner
§ Slave could be freed, did not become a citizen, could become a metic with previous owner as sponsor, but nobody else.
§ But slaves who fought for Athens got freed and made citizens
§ Special status of public slave, details unknown. Apparently higher.
...
v Marriage, family, etc.
Ø Kyrios (lord) has two meanings
§ The man who is in charge of a woman or a child
· The child's father
· The woman's father until she is married, husband thereafter
O
hard is the lot of all womankind
She's
always oppressed, she's always confined
Confined
by her parents until she's a wife
A slave to her husband the rest of her life
· If the father is dead, brother or paternal grandfather, if neither
· A guardian is appointed.
· If husband dies, either returns to her family, her father is her Kyrios(or ...)
· Or stay, with husband's heir (possibly her son) as her kyrios
· Kyrios has authority over, but is responsible for upkeep of
· An Athenian woman apparently always had a lord, but a Metic might not.
§ The head of a family (Oikos)
· Senior male in the paternal line
¨ I.e. father
¨ Paternal grandfather, or his father
· Controls the family property
· Oikos is family living together
¨ Does not include slaves, concubines or illegitimate children
¨ Does include children, grandchildren, sons' wives, children, grandchildren ...
¨
What if son set
up separate household while father still alive?
· When the Kyrios of an Oikos dies
¨ His son inherits
¨ If more than one legitimate son, could divide into two or more new oikoi.
¨ Did it have to?
¨ If no sons, oikos could become extinct, thought a bad thing
· Kyrios can hand over control to son or sons while alive if old
· Can be compelled to do so if senile
§ The meanings are different
· Adult son is still in the household of which is father is kyrios
· But the father is not the Kyrios of an adult son (is of a daughter, until married)
· And the wife of an adult son is in the household of which the father is kyrios
· But her Kyrios is her husband.
Ø Marriage
§ After early law change, citizen man can only marry citizen woman
§ Woman's betrothal and marriage require the consent of her kyrios, not of her
· Dowry arranged by contract, husband holds in trust for their children
· Uses the income from it to help support the couple
· If he dies or they divorce, dowry reverts to kyrios
§ Cannot be married to direct ascendant, descendant
· Or son of her mother
· But can be to son of her father who is not son of her mother
· Or any more distant relative--or unrelated man
§ Only one wife, but can also be a concubine (more than one?)
· If you want to "marry" non-citizen, she has to be your concubine, not wife
· Concubine could also be slave
§ Wife required to be faithful, husband not
§ Husband who detected adultery is required to divorce wife, could prosecute seducer.
Ø Divorce
§ Husband could freely divorce wife without cause
§ Wife's father could end marriage, at least if no children
§ Wife could divorce husband--not clear how easily
§ On divorce, for any reason, dowry reverted to the man who provided it or his heir
Ø Widows
§ If no children, wife returns to her oikos, her Kyrios could give her in marriage again
§ If children, wife could return to her oikos or stay in her husband's (if it still existed?)
§ Or husband could give her (and her dowry) to someone else on his deathbed or in his will.
§ In all cases, dowry goes with wife, along with obligation to support
Ø Concubines
§ Did not have to be citizens, but apparently could be
§ If held "with regard to producing free children," children were free, were citizens if concubine was a citizen, but not legitimate
§ Otherwise concubine probably a slave, children slaves.
Ø Children
§ Paternity depended on formal declaration by father,
· could be compelled by legal proceedings, or
· revoked on evidence
§ Legitimacy depended on formal marriage of parents (possible brief exception)
· Formal marriage normally required betrothal by woman's kyrios
· Or magistrate assigning an heiress
§ Son probably could not be disinherited save by being adopted by someone else.
§ No legal obligation to support children but couldn't kill them.
§ When parents got old, apparently legal obligation of children to support them
· Unless son had not been taught a craft
· Had been prostituted
· Or not legitimate
· All of which were father's fault
Ø Inheritance
§ Legitimate sons divided the property
§ If they were minors
· A guardian or guardians appointed by the Arkhon
· Typically named by the father before dying
· Provided food, clothing and housing
· Served as Kyrios for the son
· Could use the income from the property for the son's expenses, but ...
· When son was 18, had to account for property and past use of income, turn over property and any income over expenses to son
· Competitive bidding to lease estate of a minor, so as to keep the guardian honest
· While a minor, anyone could prosecute the guardian for mistreating--public case.
· When an adult, he had five years to bring a private case against the guardian for not handing over the right amount of property
§ If there was only an heiress, no heir
· Objective is to pass the property forward to her future son(s), keep it in the family
· She is required to marry her father's nearest male relative willing to have her, if equally near, eldest has preference
· Even if she has to get divorced to do it, and/or he does
· Her husband controlls the property until she had an adult son to claim it
· If two or more heiresses, two or more male relatives could claim them
· Woman's preference is irrelevant
· Although that attitude seems to be changing a little by the end of the 4th century
§ If neither son nor daughter (nor grandson nor ...)
· Wife has no right of inheritance, neither on her own behalf or as heiress
· Nearest relative gets it
¨ starting with brother and his descendants
¨ Then sister and her descendants
¨ Then on to further relatives
· If sister gets it, possibly it is as heiress of father, with consequences as above
· But other female relatives get an inheritance as their own property
· Whether bastards had any inheritance rights is unclear
§ Problem: If the inheritor is a distant male relative, the oikos becomes extinct, religious ceremonies in the decedant's honor are likely to be neglected, so ...
·
Adopt someone else's son, who becomes in
all legal respects your son, no longer in his previous oikos.
· Later it became possible to adopt by will.
·
In both cases, only if he had no son (what
if he had a bastard son?)
Could you
adopt your own illegitimate son (R.F.'s suggestion)?
· If the man who adopted a son had a daughter, she became heiress to half the estate, her son eventually got all of it. So adopted son was not in all legal respects like son after all--the son would have gotten the entire estate unencumbered!
· Adoption is a way of getting an heir, preserving the oikos past your death.
· It was possible but uncommon to adopt a woman to be your heiress instead
¨
What if the man
you want is himself heir to a valuable estate?
¨
Could adopt a
daughter, marry her to him, their children inherit both estates.
· There was a procedure for posthumous adoption of a near relative, details unclear.
¨ Somehow arranged by relatives after your death
¨ In one case we know about, it was a legal trick to get the adopted "son" more closely related to someone else who had died intestate so as to claim his property
§ Will?
· Mainly to pass property by adoption
· Small bequests possible to bastards or others
§ Disputed inheritance
· Legal procedure
· If contested, jury trial among the contestants
· Either to inherit or to get the heiress.
· Awarding of an heiress had the same legal effect as betrothal--made children legitimate
v Homicide
Ø Prosecution by kin--perhaps by others if necessary?
§ Not only deterrence, but vengeance and prevention of pollution
§ So no wergeld system--couldn't compensate the victim
Ø Once the charge was made
§ The defendant free to go about, but ...
§ Not to go in temples, courts, etc.
Ø Homicide was permitted
§ By accident in athletic contests or war
§ In self defense, if the other the attacker
§ If the victim had been caught in flagrante with wife, sister, mother, etc.
§ Of brigands etc.
§ Of someone exiled for homicide, if found in Athenian territory
§ Of any trying to overthrow the democracy
Ø Intentional vs unintentional homicide
§ Accident, such as a love potion that turned out to be lethal, was unintentional
§ Something that is intended to harm and actually kills is perhaps counted as intentional
§ The defendant could be responsible for indirectly causing intentional or unintentional homicide
· Wife gets husband's friend's concubine to give both a "love potion" that's poison
· Khoregos was responsible for running of Chorus, although not himself present. Accidental poisoning of one of the boys, by medicine supposed to improve his voice. Khoregos was accused of responsibility for it.
¨ He claimed it was a put-up case, designed
¨ To keep him from prosecuting another case
¨ Since until he was cleared he had to stay out of all courts but the one he was tried in
§ Court depended on details of case
· Areopagos , jury of all ex-archons (archons: 9 top magistrates, chosen by lot)
· Ephetai, jury of 51 men over fifty, selected by lot possibly from Areopagos ? Tried cases where defendant claimed killing was lawful
· Otherwise, if accused of himself intentionally killing a citizen, tried by Areopagos
· If accused of accidentally killing, or responsibility for killing, or killing alien or slave, tried by ephetai.
· Separate court for homicide by person unknown or object or animal.
¨ Basileus (religious Archon?)
¨ Heads of the four ancient tribes (religious position)
¨ "Person unknown" could be convicted and exiled
¨ Animal could be killed or driver out of Attika, object removed from Attika
Ø Was the point to make sure the matter was legally resolved?
Ø
Or perhaps to
remove pollution (miasma).
§ Trial procedure for homicide was elaborate
· Three pre-trials
· Trial with various extra oaths
· After defendant's first speech he could choose to go into exile
· Penalty for intentional homicide was death and forfeiture of property
· For unintentional, exile, no forfeiture.
· Exile was ended only by unanimous pardon by victim's close relatives.
· Penalty for responsibility for homicide was the same as for homicide
§ Alternative procedure: Apagoge
· The offense, apparently, was being a murderer and not avoiding sacred places
· Arrested, tried for that before an ordinary jury, penalty death
· In once case the procedure was used to prosecute someone despite an amnesty that cancelled the "murder" itself.
v Assault and abuse
Ø A variety of offenses could be prosecuted by the victim--private case for damages
§ Slander
§ Hitting--if the other man started it. But in the case of hitting a parent or grandparent anyone could bring the case, penalty disfranchisement
§ Deliberate wounding
Ø Sexual offenses--applied to free women, citizen or not, but not slaves
§ Rape punished with a cash penalty,
· initially 100 drachmas, later set by the jury
· Paid to woman's kyrios
§ Seduction a more serious offense (if you think of the husband as victim, true)
· Husband whose wife was seduced had to divorce her
¨ She was forbidden to attend public religious ceremonies or
¨ wear ornaments
· If he caught the seducer in the act could
¨ Kill
¨ Mistreat
¨ Hold for money payment
· Procuring for seduction an offense, eventually became capital, but ...
· Prostitution legal, procuring a prostitute legal
·
What was the
distinction between letting yourself be seduced and being a
prostitute? Not marriage--an unmarried woman could still be seduced.
Whether woman was paid, or whether a professional?
§ Homosexual acts were legal but
· Rape and procuring of free males illegal
· Legislation to control choruses and boy's schools to discourage affairs
· Male prostitute was disfranchised but not otherwise punished
· Laws against causing a citizen male to become a prostitute
Ø Laws against slander and against abuse of magistrates
Ø
Hybris
§ Harming others for the fun of it out of high spirits and energy, roughly
§ The "others" could be slaves. Definition of offense vague
§ Prosecutions seem to have been rare
v Property
Ø Any citizen could own land or buildings
§ alien could only do so with special permission,
§ slave never
Ø Owner could dispose of property except that
§ Jointly owned property required consent of both--one could force a division
§ Right of bequeathal limited
§ Minors or women could not dispose of their property
§ Land could be sold.
Ø State property
§ Certain olive trees were sacred and state property
· Originally, the state got the harvest
· Later the owner of the property had to pay a little olive oil each year
§ All mines were state property, at least the underground part
Ø Restrictions on land use
§ Limits on cutting down ordinary olive trees (two a year, with exceptions)
§ Limits on how close to the property line you could plant trees, dig ditches
§ Requirement on giving others access to water on your land
· Must use public well if not too far away
· If it is, must dig your own, but if you dig down and don't get water
· You may take a certain amount each day from neighbor's well
§ Some restriction on building walls that diverted a flow of water? That damaged your neighbor?
Ø Sale was
§ Initially spot sale, no credit
§ But could use borrowed money
§ Could borrow from seller--de facto credit.
§ Could pay a deposit in order to reserve the property for some length of time
·
Seller
apparently bound then to sell
· Unlike situation in Taiwan
§ Land sales required 60 days public notice to let other claimants come forward
§ Law against false statements in the Agora
§ Seller of slave must report any physical defects, if buyer discovered one he could get his money back.
Ø Contract
§ General rule was freedom of contract
§ Could be written or
§ Oral
Ø Lease
§ Lease land or buildings for fixed rent,
§ Written agreement not required, might be convenient
§ Where leasor was a public body, terms were often engraved on stone, survived to give us evidence that they had
§ Fairly detailed contracts
§ If leasor failed to pay, private case against the leasee
Ø Loans
§ Interest rate by mutual agreement
§ Normally property could forfeit if loan not repaid
§ So borrower offered specific security instead
· Pawn or
· Land or houses--borrower still used them, creditor could claim if borrower defaulted.
· Stone marker was usually put on land to warn that it was encumbered.
Ø Other security
§ Leasee of an orphan's estate had to offer property as security for return of the estate with rent when the orphan reached his majority
§ A husband might be required to post security for dowry.
Ø Procedures for claiming
§ Diadakasia, as for a dispute over inheritance, involved people disputing who owned the property-multiple parties, no plaintiff/defendant division.
§ Or an ordinary private suit (dike).
Ø Theft
§ Claimant could demand to search house--undressed, presumably so he couldn't bring in property and plant it
§ If successful, the thief must return the property plus penalty of twice its value
§ Jury could also sentence to the stocks for five days and nights
§ If taken by violence, additional fine to the state
§ For some particularly serious sorts of theft, different procedure
§ If caught in the act (or with the loot), death penalty
§ Theft from a sacred treasury was a public case, Graphe?
§ Temple robbery--death penalty plus.
· Pheidias, the famous sculptor
· Was apparently accused of misappropriating money or materials in doing a famous statue
· Did his next famous statue somewhere other than Athens
Ø Damage
§ Term covered not only physical damage but a wide range of tort, breach of contract
§ Any action that caused someone to lose property, especially money
§ Including deliberate failure to pay money owed
§ If successful, got back twice the damage
§ So there was an incentive to claim damage rather than an ordinary suit to recover property
Ø Getting possession
§ Dike could be used as a suit for possession, but ...
§ If you lost, you paid a fine equal to amount claimed. Protection against fraudulent suits?
§ Victory authorizes self help--no police force.
v Economic regulation
Ø Restrictions on trading in the Agora
§ Aliens either couldn't trade in the Agora or perhaps
§ Could only do so with payment of a special tax
Ø During wartime
§ Athenians couldn't buy goods imported from hostile states
§ And their citizens couldn't enter Attika.
Ø Controllers of the market, 5 for Agora in Athens, 5 for Piraeus
§ Received accusations of lying about goods, selling adulterated goods
§ Fish sellers sprinkling fish with water to make them look fresher.
§ Some evidence for some price controls--price of fish?
§ Not clear if the controllers functioned as a court or not
Ø Grain sellers had their own controllers
§ "excessive" prices forbidden
§ dealers holding more than a given stock forbidden
Ø Wholesale grain trade was not in Agora, had its own supervisors.
§ Laws designed to force grain to go to Athens
§ Forbid Athenians to participate in sending grain elsewhere.
§ Cases went to the supervisors
Ø Inspectors of weights and measures
Ø Inspectors of coins
§ State slave did the inspection
§ It was illegal to refuse to accept a coin he passed!
§
Makes one
wonder if that was a device to force acceptance of debased currency
Ø Enforcement
§ For violating some rules, a public case called a phasis
§ Prosecutor received half the fine
Ø Town regulators
§ Five for Athens, five for Piraeus
§ Maximum price enforcement for flute girls etc.!
§ Carting off dead bodies
§ Enforcing sanitary regulations, rules against things that cause problems for others.
Ø Military service
§ Compulsory, but can choose(?) cavalry, hoplite, partly armored infantry, or navy
§ For cowardice (not coming, leaving post, throwing shield away)
· Action is a Graphe (public case)
· Magistrates to bring it in are the military officers
· Jury of men who served in the campaign
· Penalty disfranchisement
§ Other offenses, Strategoi (generals, elected) could punish to some degree
· Had to bring him to trial for major punishments
· And they had to defend themselves at the end of their term
Ø Liturgies--producing public goods up close and personal
§ Person chosen had to provide cash and services for
· Festivals--chorus, team for the olympics
· Maintaining and captaining a warship
· Pay tax due from a bunch of people, then collect it if possible
§ Men appointed by the appropriate magistrate for the job
· Could volunteer, otherwise
· That magistrates were supposed to appoint the richest men
· Who weren't doing another liturgy and hadn't done one last year.
§ Could get out of it by
· Persuading the magistrate that you didn't qualify
· If the magistrate not persuaded, persuading a jury
· On the appropriate day for that liturgy, challenge someone else to take it
¨ By claiming the someone else was qualified and richer
¨ Proved by offering to trade everything you had for everything he had
¨ Other man could accept, or decline and take the liturgy, or
¨ Try to take it to court
§ Enforcement mechanisms to make sure the liturgy actually got done were
· Private suit or
· Charge of misdeeds at the end of the term
Ø Debt to the state
§ Incurred by lease, taxation, fine
§ Prosecutions for altering the list of debtors either way
§ Debtor disfranchised until he paid
§ If he waited too long, his debt doubled.
§ Public case for confiscating property to pay debt
· Property auctioned
· If not enough, remainder still owed
· If more than enough, remainder went to debtor
§ Prosecutor got 3/4 of what was collected
·
Opportunity for
a conspiracy?
·
I arrange for
you to start a case to confiscate my property, which pays my debt
· And we split your share
§ Sometimes the Boule could imprison in the stocks a tax collector who defaulted
§ People condemned to pay sometimes were imprisoned until they did
§ If you contracted to owe a future debt to the state, sureties might be required
§ If nothing to confiscate, nobody chose to imprison you, you could end up as a free debtor but disenfranchised
Ø Choosing public officials
§ Appointed by lot or election (military only?)
§ Dokimasia the procedure to check you met the qualifications (age, citizenship, ...)
· You had to answer some set questions about your age, deme, mother, father, ...
· Anyone who wanted could make an accusation, theoretically relevant to your meeting the requirements--in practice not necessarily
· He got to defend himself
· If he loses he doesn't get the office
Ø Disciplining public officials
§ Every 36 days there was a vote in Ekklesia (assembly) on how officials were performing; if vote went against any official he was deposed
· Presumably there was usually a trial, and
· One source says, if acquitted, the official was reinstated
§ Every 36 days, group from the Boule examined accounts of officials
· If there was a problem, Boule could punish
· Private citizen could accuse official to the Boule .
· Boule could impose a fine up to 500 drachma
§ Euthynia after service completed
· It was held for every official appointed to duties above the level of jurors
· Until completed the official could not leave Attika
· Financial
¨ By inspectors chosen by lot
¨ To check his accounts
¨ Brought to court with a jury, where
¨ Anyone could bring an accusation
¨ If stole, embezzled, took bribes, ten times amount as penalty
¨ If he was merely incompetent, had to repay the amount lost
· Other misconduct
¨ Again inspectors chosen by lot
¨ Anyone could bring charges
¨ Could lead to a trial
Ø Dealing with corruption
§ Offering or accepting a bribe subject to prosecution, penalty ten times the amount
§ Vote buying occurred somehow, illegal
§ Bribery of witnesses normally a private case by person injured thereby
§ Lying in the assembly, or speaking when not qualified to, grounds for a public suit
· Examples of disqualification were having mistreated parents
· Thrown away his shield
· Or been a prostitute
§ Penalty disfranchisement--which would stop any lawsuit he was conducting
v Treason
Ø Tyranny and subversion of the democracy
§ Either trying to set up a tyranny or, later
§ To subvert the democracy--for instance towards oligarchy
§ Or holding an office when the democracy had been subverted
Ø Betrayal
§ Giving away your country to a foreigner--also treason in our terms
§ Exile, confiscation of property, no burial in Attika, execution optional?
§ Could be tried post mortem, your bones expelled
Ø Misleading the people
§ Making a promise to the assembly and not fulfilling it
§ Apparently didn't have to be dishonest
§ Give me 70 ships and I will enrich you
§ He tried, got a mortal wound in the process, still got tried, convicted, fined
§ Misleading because you had been bribed by enemies of Athens was a different offense
Ø Informants
§ For treason directly to the Ekklesia or Boule
· Could ask for immunity
· Law at one point made impunity automatic if information true, death penalty if false
· Slave who gave true info against master was usually freed
· Rewards could be offered for information
§ Response to such information
· Boule could hold a trial, but maximum fine of 500 drachmas
· Ekklesia could hold trial
· Which was set up by decree, which might also specify the penalty if convicted
· If the informer was a citizen, he would probably prosecute
· If the informer was a woman or non-citizen, some male citizen would prosecute instead
§ Eisanglia for new offenses?
· Some sources claim that that for an offense there was no law against, charge to and trial by assembly or Boule .
· Some evidence that by second half of the 4th century, there was a specific list of offenses for which it was possible, basically treason, and no others.
·
So there may
have been an equivalent to the Chinese "doing what ought not to be
done/violating an imperial decree," but no cases preserved? But after
403/4, no uninscribed law was to be enforced!
§ Areopagos
· For quite a while, only had jurisdiction over homicide, but ...
· About mid 4th c, assembly could refer possible offenses to the Areopagos
· Or it could decide to investigate something
· And report back to the assembly
· Which, if it thought someone should be charged, decreed how the case was to be tried
v Religion
Ø "Sacred law" was from gods, handed down, sometimes but not always inscribed
§ typically some particular priest was the expert on some particular part of the religious law, by tradition handed down.
§ Exegetai were "expounders," perhaps priests with the duty of telling people (some parts of?) the religious law
§ No evidence that they or other priests had enforcement powers.
§ In private matters, "enforcement" was presumably the gods' anger
§ But infringement involving public ceremonies, shrines, etc. might bring that anger down on the whole community, so you could be tried for it
Ø Categories of religious offenses
§ Offenses with regard to certain festivals dealt with by probole.
· Charge went to the Boule and the Ekklesia
· Day after the festival, Ekklesia heard the case, gave an advisory verdict
· For any actual result it had to be followed by a jury trial
§ Impiety
· Prosecuted by graphe
· For a variety of acts
¨ The wrong person carrying out a sacrifice on the wrong day (as a favor)
¨ Use of drugs and incantations (purpose not known)
¨ Attempt to form a new religious sect
¨ Etc.
· The mutilation of the Herms prosecuted by Eisangelia
· Perhaps because it was a more serious case?
· Presumably there was some general law against impiety, leaving the definition to the jury, but we don't really know
§ Atheism
· Old comedy made fun of the gods on a regular basis
¨ We don't know if it was permitted to everyone then, or
¨ Was a convention of comedy at festivals
· In the 430's, a law against those who did not believe in the gods or who gave instruction in astronomy, prosecution by Eisangelia
¨ Because astronomy was associated with non-religious explanations of the universe?
¨ Perhaps a response to increasing "enlightenment," philosophical speculation, in the Periclean age
¨ Protagoras started his book by saying he knew neither that gods did or did not exist; he was exiled, copies of the book burned. (First known case?)
¨ Perhaps due to a change in the law, Socrates was prosecuted by graphe for impiety
v Arbitration
Ø Private arbitration could be arranged by mutual consent
§ how to enforce it?
§ A law providing for agreement, sometimes in writing, oaths, etc.
§ But a losing party might still find a way of getting out, denying the agreement, etc.
Ø Public arbitration
§ There were tribe judges, four for each of the ten tribes
· They were the magistrates responsible for most private cases
· Application was made to the four for the tribe to which the defendant belonged
· If the defendant was a metic etc., application was made to the polemarch, who allocated it to tribal judges by lot
· If no more than ten drachma at stake, the tribal judges could decide the case
· Otherwise they had to pass it to an arbitrator
§ Arbitrators (instituted in 399, shortly after the tribal judges)
· They handled only the cases that went to the tribal judges (we think)
· All male Athenian citizens served as arbitrators in their sixtieth year
· For one year we have the list--103 names, which seems small
· Cases allocated by lot
· Arbitration in public
· Gave a judgment, reported it to the tribe judges
§ Appeal
· Either party could appeal the result
¨ The result was a trial
¨ But only the evidence that had been offered at arbitration could be considered
· If a party asked for a postponement for illness or absence, didn't get it
¨ And judgment was given against him in his absence for deserting the case
¨ Within ten days can apply to the tribe judges with oath that he couldn't attend because of illness or absence from Attika
¨ If accepted, the verdict was cancelled, new arbitration held
· A party could complain that the arbitrator had acted improperly
¨ Charge heard by the body of all arbitrators for that year
¨ If they convicted the arbitrator he could appeal to a jury
¨ Penalty for the arbitrator was total disfranchisement
¨ Presumably, the result was cancelled and a new arbitration held
v Ways of blocking legal action for improper procedure
Ø Object to the magistrate that the case shouldn't be going to him
§ But magistrate might be incompetent or corrupt
§ And your argument might depend on a disputed fact, such as whether you were a citizen
Ø Diamartyria was a procedure to establish disputed facts
§ Formal assertion of a fact by a witness in a position to know it
§ Established the fact as legally true, unless
§ The other side objected and brought against him an action for false witness
§ The initial case then went on hold until that trial was settled
§ If the other side didn't object, or (presumably) the witness was acquitted
§ The fact was a fact, legally speaking
§ For instance, the defendant was or wasn't a citizen
§ Which would determine what magistrate and court the case went to
§ Some reason to think that Diamartyria was an old procedure, although the procedure for challenging it might not be
Ø Paragraphe was another procedure for blocking the action
§ In effect, the defendant was prosecuting the prosecutor for illegal procedure
§ It seems to have originated in the context of the amnesty after the reestablishment of democracy in 403/4.
· Established by a law that let you sue someone for breaking that agreement by prosecuting for acts before the amnesty
· Defendant becomes prosecutor and speaks first
· The losing side paid 1/6 the amount in dispute (an Obol per drachma)
§ But then got applied more generally to attack the procedure of a prosecution
· For instance, where it was claimed the matter had already been settled by arbitration
· Or to object to a case being submitted to the wrong magistrate
· Or ...
§ Diamartyria in part replaced by Paragraphe but
· Continued in use at least for cases
· Where there was no prosecutor/defendant distinction
· Such as to establish facts relevant to an inheritance dispute
v Legal disputes with foreigners
Ø Disputes between citizens of two states sometimes controlled by a symbola
§ A treaty between the states
§ Specifying the legal rules to be used for such disputes
Ø Polemarch was the magistrate for matters to do with metics and (perhaps, initially) other aliens
§ In the fifth century, there were decrees giving particular aliens the right of taking their cases to the polemarch, implying that others went elsewhere, and
§ Xenodikai ("judges of aliens") existed by 440, so perhaps dealt with them
§ Polemarch was responsible for all those in which a metic or proxenos (alien who had been recognized as a benefactor of Athens) was prosecutor or defendant, and those involving aliens given the right to go to him
§ Which suggests there was some advantage to it, but we don't know what.
§ Later, at least, some cases involving aliens seem to go to neither the Polemarch nor the Xenodikai
§ It looks as though, in the fourth century, public cases involving aliens followed the same procedure as those involving citizens
§ And it looks as though the Polemarch allocated to the tribal judges private cases involving a metic or proxenos
Ø In the middle of the 5th century, the Delian league became the Athenian Empire
§ In many cases, cities continued to try their own citizens, and Athenian citizens in their city, perhaps under treaty
§ But other cases had to be tried in Athens
· Cases concerning tribute owed by cities to Athens
· In some cases, an Athenian cold prosecute a citizen of another city by graphe and require him to come to Athens to be tried
· In some Athens claimed control over some cases, especially those imposing serious penalties, by a citizen of a subject city against another such citizen
¨ Presumably to maintain Athenian political control
¨ By protecting pro-Athenians in the city and, if necessary
¨ Persecuting opponents of Athens
· And some foreign citizens were given the special right that no punishment could be imposed on them without the concurrence of the Athenian court
§ In addition to political control, this also got Athenians
· Business--people had to come to Athens, put up there, etc.
· Influence--being popular with Athenians made you more likely to win a case before an Athenian jury
v The court calendar
Ø At least in the fifth century, you start getting
§ Particular cases being tried in particular months
§ These seem to involve people having to travel to Athens from overseas
§ There seem to have been special magistrates (nautodiki) who handled cases involving merchants and sailors
§ And perhaps people falsely claiming to be Athenian citizens
§ Not clear if they pronounced verdicts or merely arranged for a jury trial
§ By early 4th century, complaints about delay in those courts
Ø In the mid Fourth century, nautodiki and xenodikai vanish
§ Treaty cases go to the Thesmothetai
§ Merchant cases involving foreigners, like those involving Athenians, are "mercantile cases" and apparently handled in the same way
§ Brought before the Thesmothetai
§ In non-summer (non-sailing?) months only, but all of those months
§ And had to be based on a written contract that the prosecutor claimed had not been fulfilled
· We have surviving mercantile contracts for loans secured by cargo and such
· And they have quite elaborate terms (where the merchant is to go, what he is to sell and buy, what happens if something goes wrong)
§ Made in the Athenian market or concerning voyage to or from that market
§ Losing defendant could be imprisoned until he paid
§ Losing prosecutor could be prosecuted as a sycophant if his prosecution was unjustified
§ Arguably, this was a way of getting faster results for merchants, who lost money if tied down in Athens for months, especially during sailing season
Ø Similar reforms for other cases in mid-4th century
§ Many categories of cases became "monthly" (could be brought in any month?)
§ Five new magistrates (eisagogeis--"introducers") to handle many sorts of financial cases
Ø By the late 4th century the distinction between the legal treatment of citizens and non-citizens in Athenian courts seems to have largely broken down
v Procedure: Trial and Punishment
Ø Initiation of a case could be
§ By a magistrate,
· who could impose minor fines himself in some cases
· But had to arrange a trial in order to impose anything more substantial
· Fined individual could object either by
¨ Refusing to pay, and stating his case when he was prosecuted as a debtor to the state, or
¨ Pay, and then state his case when the magistrate's performance was being reviewed at the end of his term
· A military commander could either fine or imprison someone guilty of indiscipline
Ø By a private individual
§ Who took the case to the appropriate magistrate with the appropriate procedure
· The Arkhon took cases involves relationships between members of Athenian families, and cases involving certain religious festivals
· The Basileus took cases involving religion or homicide
· The Polemarch took cases involving metics
· Themosthetai took many others sorts of cases
· The Eleven dealt with wrongdoers, others held in prison before trial
· Various sorts of cases taken by the magistrates whose area of responsibility they concerned
· Private cases handled by the tribe judges
§ Some could be taken every day, some only on particular days
Ø Procedure was
§ Prosecutor summonsed the defendant to appear before the appropriate magistrate on the appropriate day--
· with witnesses that he had done so
· testifying falsely to a summons was itself an offense
· apparently a woman could issue a summons
§ on the appointed day the prosecutor
· provided the magistrate a statement of the charge, in the later period always in writing
· often but not always had to pay a fee
· sometimes the amount depended on the amount of the charge
· if prosecutor won the case, the defendant had to reimburse the fee
§ if the defendant was an alien, he needed to provide sureties that he wouldn't leave Athens, or else was held in jail
§ The magistrate then arranged a date for a preliminary hearing at which
· Parties gave and denied charges
· In some cases, notably inheritance, might have to post a deposit related to the size of their claims
· Parties swore oaths that their side of the dispute was right
· Defendant could object that the claim shouldn't be heard by this magistrate (paragraph, discussed above)
· Or could try to establish a fact by diamartyria (sworn statement by one who should know it)
· Magistrate then interrogates the parties
· And then sets the date for the trial
· Some cases (cases to tribe judges, which went to arbitrator, homicide, etc.) followed their own different procedures.
Ø Evidence
§ Litigant is responsible for presenting copy of any laws he thinks are relevant
§ Documentary evidence could be introduced (will, contract, ...)
§ Witnesses
· In the early period testified
· Later provided written testimony and swore it was true
· If he couldn't be present, others could swear it was his
· Hearsay only permitted if the source was dead
· Disfranchised citizens could not testify, women and children apparently did not
· Witnesses were legally required to testify if a party demanded it
¨ If they didn't come, could be prosecuted
¨ If they did, a party could provide a statement and require the witness to either swear it was true or swear he didn't know it was true
· A party could bring a case against a witness for false witness
¨ In the earlier period this seems to have been independent of the main case
¨ Later, it had to be brought before the jury announced the verdict, and
¨ Apparently prevented implementation of some verdicts, such as execution
¨ Until the charge of false witness was settled
· Slaves could not appear in court, but their written testimony could be introduced, if and only if it had been produced under torture!
¨ Torturing a slave required his master's permission
¨ But the master's refusal to grant permission could be introduced as evidence
§ A party could demand that both parties swear to the truth of their claims on a disputed point in a temple
§ And could produce real evidence--such as the person you were accused of killing, alive and well
Ø The trial
§ Some courts had special procedures of their own; the general procedure was
§ Magistrate presided, jury present, spectators could listen
§ If one party was absent with reason, the jury had to decide whether to accept the reason or merely rule against him
· If the defendant was absent and not excused, he was convicted
· If it was the prosecutor, he paid a fine and in most cases could not bring a case of that sort in the future
§ Both sides make speeches, in some sorts of cases each side apparently made one, in others apparently two
· There were time limits
· Which sometimes depended on the amount at stake
· They were defined in terms of water clocks and we don't know with much confidence how to convert to minutes
· Litigants made their own speeches but could have them composed by paid orators
¨ Perhaps read out, but more likely
¨ Memorized and delivered
· A speaker could yield some of his time to a supporting speaker
¨ But it was supposed to be a supporter, not a paid speaker
¨ And doing the latter was an offense
¨ He could also have supporters who did not speak--such as his children, there to get the sympathy of the jurors
§ If the defendant lost, both prosecutor and defendant proposed penalties
· Each got to make a speech for his proposal
· Jury voted to choose one
Ø Penalties
§ In some cases the penalty was fixed by law, otherwise determined as above
§ Available penalties included
· Execution
· Exile
· Either of which could be supplemented by
¨ Forfeiture of property
¨ Forbidden from being buried in Attica
¨ Disfranchisement of descendants
· Enslavement (of metic or other alien)
· Disfranchisement (Atemia), loss of some or all civil privileges
· Imprisonment mainly used to hold someone
¨ Awaiting trial or execution
¨ Or until he paid his fine
¨ But presumably could occasionally be used as a penalty
¨ And five days in the stocks was a penalty for theft
· There do not seem to have been any non-capital corporal punishments (flogging, etc.)
· Fines--presumably the commonest punishment
¨ In public cases, to the state
¨ Minus whatever share went to the prosecutor as his reward
¨ In private cases normally to the successful plaintiff
¨ But in some cases also a fine to the stat
Ø Pardon and amnesty
§ If exiled for unintentional homicide, could be pardoned by the family of the victim
§ The assembly (Ekklesia) could cancel verdicts, or penalties, or vote blanket amnesties
§ After 403, the assembly could only cancel a jury verdict through a special procedure, apparently involving a secret ballot with at least 6000 people voting
Prices, Wages and all that in Classical Athens
I found a number of webbed estimates for Athenian
population at various dates in the 5th century B.C.
A number of sources suggest about 40,000 adult male citizens,
100,000 slaves, 30,000-50,000 metics. But there is a figure,
apparently from Thucydides, describing the situation at the start of
the Peloponnesian
War, with a much higher figure for citizens (240,000), perhaps
including women.