value to two oxen) are awarded either (a) to the litigant who “pleads
his cause most justly before them” (so Thonissen, Shilleto and
Lipsius, in accordance with the Attic use of phrases like δίκην εἰπεῖν),
or (b) to the judge “who, among all the elders, gives the most
righteous judgment” (so Maine, approved by Sidgwick, Pollock,
Leaf and Ridgeway).
On this controversy, cf. Maine’s Ancient Law, chap. x. pp. 385 f., 405 f., ed. Pollock; Thonissen, Droit pénal (1875), 27; P. M. Laurence (on Shilleto’s view) in Journal of Philology, viii. (1879), 125 f.; Ridgeway, ib. x. (1882), 30 f., and Journal of Hellenic Studies, viii. (1887), 133 f.; and Leaf, ib. viii. 122 f., and in his Commentary on Iliad, ii. (1902), 610-614; also J. H. Lipsius in Leipziger Studien, xii. (1890), 225-231, criticized by H. Sidgwick in Classical Review, viii. (1894), 1-4.
We are told elsewhere in Homer that sometimes a man accepted blood-money from the slayer of his brother or his son, and that the slayer remained in the land after paying this penalty (Il. ix. 633). As a rule the slayer found it safest to flee (Od. xxiii. 118 f.), but even so, he might be pursued by the friends of the slain (Od. xv. 272-278). If he remained, the land was not (as in later ages) deemed to be polluted by his presence. In Homer, Orestes does not slay Clytaemestra, and he needs no “purification” for slaying Aegisthus.
The laws of Sparta are ascribed to the legislation of Lycurgus, whose traditional date is 884 B.C. Written laws are said to have been expressly forbidden by Lycurgus (Plutarch, Lycurgus, 13); hence the “laws of Sparta” are simply a body of traditional observances. We learn that all Greek lawgivers: Lycurgus at Sparta. trials for homicide came before the Council of Elders and lasted for several days, and that all civil causes were tried by the ephors (q.v.). We are also told that originally the land was equally divided among the citizens of Sparta, and that this equality was enforced by law (Polybius vi. 45-46). Early in the 4th century the ephor Epitadeus, owing to a disagreement with his son, enacted that every Spartan should be allowed to transfer his estate and his allotment to any other person (Plutarch, Agis, 5), while Aristotle, in a much-debated passage of the Politics (ii. 9. 14-15), criticizes the Spartan constitution for allowing the accumulation of property in a few hands, an evil aggravated by the large number of “heiresses”; “a man (he adds) may bestow his heiress on any one he pleases; and, if he dies intestate, this privilege descends to his heir.”
Law was first reduced to writing in the 7th century B.C. A written code is a necessary condition of just judgment, and such a code was the first concession which the people in the Greek cities extorted from the ruling aristocracies. The change was generally effected with the aid of a Era of written laws. single legislator entrusted with complete authority to draw up a code.
The first communities to reach this stage of progress were
the Greek colonies in the West. The Epizephyrian Locrians,
near the extreme south of Italy, received the earliest
written code from Zaleucus (663 B.C.), whose strict
and severe legislation put an end to a period of strife
Zaleucus at Locri Epizephyrii.
Charondas at Catana, etc.
and confusion, though we know little of his laws,
except that they attached definite penalties to each offence,
and that they strictly protected the rights of property. Two
centuries later, his code was adopted even by the
Athenian colony of Thurii in south Italy (443 B.C.).
Charondas, the “disciple” of Zaleucus, became the
lawgiver, not only of his native town of Catana on the
east coast of Sicily, but also of other Chalcidian colonies in
Sicily and Italy. The laws of Charondas were marked by a
singular precision, but there was nothing (says Aristotle)
that he could claim as his own except the special
procedure against false witnesses (Politics, ii. 12. 11).
In the case of judges who neglected to serve in the
law courts, he inflicted a large fine on the rich and a small fine
on the poor (ib. vi. (iv.) 13. 2). Androdamas of Rhegium gave
Androdamas of Rhegium.
Philolaus of Corinth.
laws on homicide and on heiresses to the Chalcidians
of Thrace, while Philolaus of Corinth provided the
Thebans with “laws of adoption” with a view to
preventing any change in the number of the allotments of land
(ib. ii. 12. 8-14).
Local legislation in Crete is represented by the laws of the important city of Gortyn, which lies to the south of Ida in a plain watered by the Lethaeus. Part of that stream forms a sluice for a water-mill, and at or near this mill some fragmentary inscriptions were found by French The laws of Gortyn. archaeologists in 1857 and 1879. The great inscription, to which most of our knowledge of the laws is due, was not discovered until 1884. It had been preserved on a wall 27 ft. long and 5 ft. high, the larger part of which was buried in the ground, while its farthest extremity passed obliquely athwart the bed of the mill-stream. It was necessary to divert the water before the last four columns could be transcribed by the Italian scholar, Federico Halbherr, whose work was completed in the same year by the excavation and transcription of the first eight columns by the German scholar, E. Fabricius. In the following year Halbherr discovered more than eighty small fragments on the neighbouring site of a former temple of the Pythian Apollo.
These fragments, which are far earlier than the great inscription above-mentioned, have been assigned to about 650 B.C. They precede the introduction of coined money into Crete, the penalties being reckoned, not in coins, but in caldrons. They deal with the powers of the magistrates and the observances of religion, but are mainly concerned with private matters of barter and sale, dowry and adoption, inheritance and succession, fines for trespass and questions of blood-money. As in the code of Zaleucus, we have a fixed scale of penalties, including the fine of a single tripod, and ranging from one to a hundred caldrons.
The great inscription is perhaps two centuries later (c. 450 B.C.). It consists of a number of amendments or additions to an earlier code, and it deals exclusively with private law, in which the family and family property occupy the largest part. The procedure is entirely oral; oaths and other oral testimony are alone admitted; there are no documentary proofs, and no record of the verdict except in the memory of the judge or of his “remembrancer.” All the causes are tried before a single judge, who varies according to the nature of the suit. Where the law specially enjoins it, he is bound to give judgment (δικάδδεν) in accordance with the law and the “witnesses or oaths,” but, in other cases, he is permitted to take oath and decide (κρίνειν) in view of “the contentions of the parties,” as distinguished from “the declarations of the witnesses.” Offences against the person are treated as matters of private compensation according to a carefully graduated tariff. In certain cases the defendant may clear himself by an “oath of purgation” with the support of “cojurors” (ὁμωμόται), the Eideshelfer of old Germanic law (Grimm 859 f.), who have no necessary knowledge of the facts. There is no interference with the exposure of infants, except in the interest of the father (if the child is free-born) or of the lord (in the case of serfs). The law of debt is primitive, though less severe than that of the early Romans. In contrast with these primitive elements we have others which are distinctly progressive. The estates of husband, wife and sons are regarded as absolutely distinct. Wills are unknown, even in their most restricted form. Elaborate provisions are made to secure with all speed the marriage of an “heiress”; she is bound to marry the eldest of her paternal uncles or to surrender part of her estate, and it is only if there are no paternal uncles that she is permitted to marry one (and that the eldest) of their sons. Adoption is made by the simple procedure of mounting a block of stone in the market-place and making a public announcement at a time when the citizens are assembled. The adopted son does not inherit any larger share than that of a daughter. Any one who desires to repudiate his adopted son makes a public announcement as before, and the person repudiated receives, by way of nominal compensation, the gift of a small number of staters. In these later “laws of Gortyn” we have reached the time when payments are made, not in “caldrons,” but in coins. In the inscription itself the laws are simply described as “these writings.”
The text of the great inscription was first published by E. Fabricius in Ath. Mitth. ix. (1885), 362-384; there is a cast of the whole in the Cambridge Museum of Classical Archaeology. Cf. Comparetti’s Leggi di Gortyna (1893); Bücheler and Zittelmann in Rhein. Mus. xl. (1885); Dareste, Haussoullier and Th. Reinach, Inscr. juridiques grecques, iii. (1894), 352-493 (with the literature there quoted). Eng. trans. by Roby in Law Quarterly Review (1886), 135-152; see also E. S. Roberts, Gk. Epigraphy, i. 39 f., 52 f., 325-332; J. W. Headlam in Journal of Hellenic Studies, xiii. (1892–1893), 48-69; P. Gardner and F. B. Jevons, Greek Antiquities (1895), 560-574; W. Wyse in Whibley’s Companion to Greek Studies (1905), 378-383; and Hermann Lipsius, Zum Recht von Gortyns (Leipzig, 1909).
A Roman writer ascribes to the Athenians the very invention of lawsuits (Aelian, Var. Hist. iii. 38), and the Athenians themselves regarded their tribunals of homicide as institutions of immemorial antiquity (Isocr. Paneg. 40). Athens.
