CMS 231/ History 231
Litigation in Ancient Athens
Week 3 Class 1 Lecture
People involved in Athenian Trials
How to Pass an Athenian
Law
TImocrates Law (Dem.
24.39-40)
TImocrates Law (Dem.
24.39-40)
During the first presidency, namely, that of the
Pandionid Tribe, and on the twelfth day of that presidency, it
was moved by Timocrates that, if the additional penalty of
imprisonment has been or shall hereafter be inflicted in pursuance
of any law or decree upon any person in debt to the treasury, it
shall be competent for him or for any other person on his behalf
to nominate as sureties for the debt such persons as shall be
approved by vote of the Assembly, on an undertaking to pay in full
the amount in which he was indebted. The Commissioners are
required to put the question whensoever any debtor wishes to
nominate sureties.
[40] The debtor who has given sureties shall be released
from the penalty of imprisonment on payment to the State of the
money, in respect of which he gave such sureties; but if at the
time of the ninth presidency neither he nor his sureties shall
have paid in the money, the man who gave sureties shall be
imprisoned and the property of the sureties shall be confiscated.
But in the case of tax-farmers, their sureties, and their
collectors, and of the lessees of leasable revenues and their
sureties, the State may exact payment according to the
established laws. If any man incur debt during the ninth
presidency he shall pay in full during the ninth or the tenth
presidency of the next ensuing year.
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How to pass an Athenian
law
- Method 1:
- new legislation must be posted before 1st meeting of
assembly [on boards by the statues of the Eponymous
Heros]
- first month of year Assembly votes on laws (nomoi); if they
reject any existing laws
- last meeting of month reserved for discussion on
legislation directing nomothetae on when and how to review
laws; defenders of existing law chosen
- Nomothetai chosen by lot - sometimes as many 1000
- hearing held and proposal of nomothetai published
- Assembly then voted on nomothetai's proposal
- Method 2:
- Thesmothetae reviewed laws and requested the Assembly to
appoint nomothetae if they felt a change was need
- Method 3:
- an individual citizen posts a draft of a new law
- which proposed a repeal of an old law and the creation of a
new law to take its place
- and request a probouleuma from the Council [to put
consideration of the new law on the Assembly's agenda]
- propose law at meeting of Assembly, wait for second meeting
to pass, ask for vote on third meeting.
- More Info At:
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People involved in Athenian Trials
- amateur system -> cheap and quick
- e.g. all trials completed w/in one day (private suits even
faster)
- no professional speakers
- logographoi ok, but speaker would never admit his speach
was ghosted
- administration by magistrates chosen by lot w/ limited
jurisdiction
- only parties who were reguarly paid were jurors
- no police force [at least one with authority to
initiate investigation and prosecution of wrongdoing]
- arkhai [magistrates/archons]
- public official among whose chief duties was the
administration of a court
- Some had "summary jurisdiction" [authority to make
decisions w/o trials]
- The Eleven
- in charge of prison(s) and executions
- power of arrest of offenders who had been denounced
to them
- execution w/o trial of criminals caught in the act
who admitted their guilt
- cf. right of citizens to kill those who broke into
their homes at night
- The Forty
- circuit judges who could settle private cases /wo
trial if dispute was < 10 drachmai
- Archons' right to impose epibolai (summary fines) worth
less than 500 drachmai
- higher fines required courts to ratify or decide
- non-dikastic courts [decisions made by those other than
jurors selected by lot who had taken oath]
- e.g. Areopagus (ex-archons)
- some religious cases
- deliberate homicide cases
- increasing jurisdiction of political cases in 4th
century bce
- apophasis (introduced in 350) gave Assembly right
to ask Areopagus to investigate a political scandal
and report to it [cf special prosecutor]
- Areopagus cd alos investigate on its own
motion
- e.g. courts for unintentional homicide (51 ephetai,
probably members of Areopagus)
- e.g. Palladion, Delphinion, in Phreatto
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- dikastai (jurors/judges)
- had the right to decide law, facts and sentence (areas
normally split in modern courts)
- elibibility
- citizen in full possession of rights (i.e., no
atimia)
- 30 yrs old
- one of th 6,000 citizens who had swarn dikastic oath at
begining of year
- service
- you were not required to serve every day the Courts were
in session
- rather, archons divided the jurors who elected to serve
on a given day between the courts that were hearing cases
that day (typically 500/501 jurors to a court)
- At the beginning of the year, jurors giving a
pinakion with his name, his father's name, his deme
and a letter from alpha to kappa, thus dividing the jury
pool into 10 sections. [picture of a pinakion]
- During the fourth century (the Athenians were constantly
tinkering with the system in order to make it more random,
and less susceptible to corruption) each morning that the
courts sat, the archons would determine how many jurors they
would need in total that day (and therefore, how many
sections of the jury pool they would need)
- Each court had 10 entrances, one for each tribe. The
jury went to the tribal entrance appropriate for himself and
presented his pinakion, which was placed in the
kleroterion (allotment machine -think of the machine
the picks lottery numbers). [ruins of a kleroterion;
reconstruction
of one]. The kleroterion picked which potential jurors
would actually serve that day (by randomly rejecting the
number of pinakia not needed].
- After the day's total panel was selected, the jurors
whose pinakia were not rejected were then divided
(again by a randomizing system) among the actual courts that
would sit that day. Before entering the court, the jurors,
were handed a symbolon, which they handed in at the
end of the day to claim their jury pay and to get their
pinakion back. Finally, the magistrates were assigned
by lot to the courts which they would administer that
day.
- Courts sat approximately 200 days of the year.
- social composition of jury pool
- Todd 87-89, says that system probably encouraged farmers
(who didn't work steadily, but rather in periods of intense
activity followed by periods of relative inactivity) rather
than artisans and shopkeepers (who would prefer to be open
for business as much as possible).
- Hansen 183 - 185, says that all the sources -> poor
citizens served as jurors (Todd says this is elitist
rhetoric). Pay (3 obols) too small to feed a family, but
just enough for the elderly, invalid and unemployed (->
older, poorrt jurors).
- jury verdicts
- final - i.e., no appeal [the courts sat as Athens,
no higher authority to appeal to]
- tended to be less an acceptance of one sides factual
assertions as it was an acceptance/approval of one
politician over an other
- some cases required jurors to vote on punishment as well
as conviction
- jurors never had discretion to vote for anything other
than one party over an other; the punishment proposed by one
party or the other [no compromise, no lesser included
offense]
- reached without deliberation
- Jury had received with his symbulon, two voting disks
that looked identical but one of which was hollow
[picture
of voting disk - scroll down and be patient]. The
hollow disk was a vote for the plaintiff, the heavy disk,
a vote for the defendant. At the end of the trial jurors
filed past two urns, one bronze and one wood. The juror
cast the vote he intended to count in the bronze
urn.
- tie votes went to defendant
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- litigants
- amateur prosecutors in both public and private cases
- public synegoroi acted on behalf of city against public
officials who failed an accounting (euthynai). Sometimes in
very unusual, high profile cases, a synegeros would be
appointed prosector (e.g., the trial of Demosthenes). But
basically, nothing like modern system of US attorneys or
district attorneys.
- nb, family and friends who helped out litigatnts in
court were also called "synegoroi" [which means
"helpers"]. Athenians had no problems keeping the two
distinct.
- the private synegoros had to ask the permission of
the jurors before he could speak
- to be successful, he usually had to explain why the
litigant needed his help (e.g., too young, inexperienced,
couldn't speak Greek) and what the relationship between
synegeros and litigant was [long standing friends, or
family was best]
- disasterous if jury thought synegeros acted for money
(doing it for reasons of political affiliation, however,
were ok)
- sykophants ("fig denouncers" - go figure)
- rhetoric against -> professional man of the courts
who would sue rich, "quiet" Athenians not to help the
demos but rather to get the payoff the Athenian would
pay rather than go through the hassle of fighting off a
baseless charge in court [cf. modern "nuisance
suits"].
- rhetoric for -> citizen who devoted his life to the
demos by prosecuting those rich scoundrels who would
defraud her.
- no fixed definition for the term: definitely used as a
disparaging term by defendants of prosecutors; could meaning
anything from suing because you have a financial incentive,
to suing because your a vextious litigant [i.e., a pain
in the patoot who gets off on suing people - what auto
companies think of Ralph Nader].
- logographoi ("speech writers")
- virtually no mention of logographoi in speeches
- i.e., not a good thing to admit someone else wrote
your speech
- interesting to note that all of our speeches are those
written by logographoi
- Dover (Lysias and the Corpus Lysicorum) -> process
was collaborative; litigant didn't just memorize what
logographoi wrote. Athenians may have thought of logographoi
as advisers on technical requirements of law [e.g.
Isaeus was a noted expert on inheritance law].
- martyres ("witnesses")
- we think of witnesses as people who possess evidence
(i.e., accounts of what transpired). The Athenians also
thought of them this way, but more importantly, witnesses
were
- allies - citizens who were willing to be seen in public
as taking your side, and risk being harrassed in court by
your enemies at a future date. Juries could determine how
seriously to take a litigant and his claims, by assessing
the status of the witnesses who supported the litigant at
trial (Sally Humphries, "Social Relations on Stage").
- witness could not, practically speaking, be compelled to
testify
- Witnesses were also important because writing was still,
relatively speaking a new technology. While we distrust
witnesses (they can be mistaken or bribed) and trust
writing, Athenians trusted witnesses (because they put their
own social standing at risk) and distrusted writings
(because they could easily be forged).
- Slaves could only be witnesses if they had given
testimony under torture
- Women could not testify at trial. If a woman had
evidence, she gave an affidavit (a written statement of what
her testimony would be, which she swore by oath was
true).
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- what happened at trial
- pretrial
- public cases [graphai]
- prosklesis - summons
- plaintiff/accusor accompanied by witnesses
(kleteres) delivered formal document requiring
defendant to appear before magistrate/archon. Form and
details had to be right or defendant could ignore or
get magistrate to quash.
- on day of hearing before magistrate/archon, the
plaintiff/accusor presented his indictment.
- if the defendant had been properly summoned and
failed to appear, the magistrate could
theoretically give a verdict to the
plaintiff/accusor [but it never happened as far
as we know]
- magistrate/archon could compel
plaintiff/accusors to amend improperly drafted
indictments; if sufficiently defective, they could
refuse to accept
- magistrate would then collect fees (if any were
required) and set a date for the anakrisis
(preliminary hearing).
- anakrisis - ("examination") preliminary
hearing
- our evidence makes very few references to
anakrises
- we think that magistrate/archons had authority to
ask questions of litigants to define scope and extent
of issues to be decided at trial (which would help
them apportion time in private cases)
- Isai. 10.2 suggests that the
magistrate/archon could pressure plaintiff/accusors to
amend claims and prevent plaintiff/accusors from
bringing legally insufficient claims
- it should be noted that parties would in different
types of cases have different incentives on how much
of their plans to reveal at a preliminary hearing
- litigants swore antomosi - an oath that
their written pleas (indictments and replies) were
true.
- public arbitration
- arbitrators (diatetes) were publicly
appointed
- arbitrators were men (may just hoplites) in last
year of military service (i.e., about 60)
- arbitrator's verdict was not binding
- arbitrator could be sued for producing a corrupt
verdict and suffer atimia if convicted.
- sealing of evidence
- if parties didn't accept arbitrator's verdict, all
documents presented by either side were gathered and
sealed in a pot called an ekhinos.
- neither side could introduce evidence at trial
that wasn't in the ekhinos.
- "rationality" arguments
- gave incentive to parties to put everything on
table before arbitrator
- gave arbitrator protection from suit against
his verdict (he could point to what the evidence
was that he had relied upon)
- defined scope of each side's case
- nb: when the ekhinos was sealed is the
subject of no small scholarly debate (some say it was
anakrisis - which would affect "rationality"
arguments")
- private cases [dikai]
- prosklesis - summons
- anakrisis - preliminary hearing
- cases < 10 drachma then resolved at a hearing
before the Forty
- cases > 10 drachma sent to public arbitration
- sealing of evidence
- The Ath.Pol. only describes the sealing of
evidence for public cases. This does not mean it
didn't happen in private cases, only that we have no
evidence for it.
- resolution of procedural/technical challenges to
indictment
- only used in private cases
- these tended to be vehicles by which defendants
sought to turn tables on the plaintiff/prosecutor; put
him on the defensive by requiring him to defend his
case
- diamarturia
- very old procedure
- a form of assertion of fact by means of a
witness(es) who testify at a hearing before the
magistrate/archon under oath about something that
will have a dispositive impact on the trial
- used a lot in inheritance cases
- paragraphe
- developed after 403 to deal with prosecutions
brought in contravention of the Amnesty
- counter-charge that plaintiff/accusor is
bringing an illegal prosecution
- never used in inheritance cases, but seems to
have become the diamarturiafor all
non-inheritance cases
- if you lost the paragraphe, in theory,
you would go on to trial of the original
indictment. But most litigants would have taken
this as a sign that they had a lousy defense and it
was time to settle the dispute outside cort
- a trial before jury automatically follows, but now
the original defendant is the accusor and the original
plaintiff/accusor is the defendant (on a charge of
bringing an illegal prosecution)
- private arbitration
- neither party wanted to go to court
- agreed to be bound by decision of a private
arbitrator: diaitetes
- parties had to agree to identity of arbitrator, terms
of his appointment, scope of his discretion
- probably worked best in small scale disputes and
between people who didn't want their dispute
politicized
- parties were not required to accept verdict of
arbitrator
- at trial
- reading of written charge and defendant's reply
- oath of litigants to only speak on relevant matters
- speeches
- public cases
- each party had one speech
- speech could last 3 hours
- plaintiff/accusor went first
- private cases
- archons/magistrates decided before trial how long
the speeches could
- longest was usually 40 minutes
- parties had a 2 brief closing speeches
- in both kinds of cases
- parties could ask each other questions and had to
answer
- evidence was read out by clerk [didn't count
against time for speech]
- time measured by water clock (klepsydra)
- water clock is a jug with a stoppered hole
- unit of measurement was a khous (3.2
litres)
- two khous took six minutes to drain
- nb: these are figures based on the only
klepsydra ever found, which was meant for use in
tribal assemblies, not city trials
- vote of jury on conviction
- ties went for defendant
- if plaintiff/prosecutor did not obtain twenty percent
of the vote he was fined 1,000 drachmai and some form of
atimia
- vote of jury on penalty
- sometimes specified by law [agones
atimetoi]
- agones timetoi - trials of assessment
- plaintiff/accusor proposed a penalty
[timema]
- defendant proposed a penalty
[antitimema]
- jury had to choose between two
- execution of jury's judgment
- cases involving financial timesis
- cases involving physical timesis
- life/death
- we actually have a lot of reference to the death
penalty. It's hard to tell if this is a bias of our
sources (they tend to focus on "high crimes")
- for defendants who skedaddled rather than stand
trial, nobody tried to hunt them down or extradict
them (instead they were considered to be in exile and
to have lost all civic rights, which made it
impossible for them to return home)
- in homicide cases, the defendant had the
right after the opening speeches, to go into
voluntary exile
- for Athens the issue was religious (cleansing
city of blood-guilt) not penal
- types of execution
- barathron - ancient method (throw people
into a pit)
- apotumpanismos - somewhat like
crucifixion [being tied to a chair/stock;
beaten up; left to die of exposure - exact details
of what happened are sketchy]
- hemlock
- freedom
- used with certain classes of public debtors
- pre-trial detention for prisoners awaiting trial
by apagoge [a type of criminal
charge]
- atimia - "removal of honor"
- imposed only on male citizens
- imposed only for offenses committed by a citizen
in his capacity as citizen
- it was not the denial of citizenship [i.e.,
you could still live in Athens], but the denial of
the right to do things citizens could do [go to
court, temples, Assembly, etc.]. It may be that if
the atimia was bad enough, Athenians went into
exile voluntarily.
- could be whole or partial
- typically life long
- not hereditary
- atimia for debts
- automatic for unpaid debts to state
- automatically lifted when debt paid
- hereditary
- ??exile??
- not clear if it was an actual punishment of the
jury, or defacto what happened when a defendant
voluntarily went into exile to avoid trial or
conviction in homicide trials.
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