Mercantile cases had to be decided within the interval of a month; others might be postponed for due cause. If, on the day of trial, one of the parties was absent, his representative had to show cause under oath (ὑπωμοσία); if the other party objected, he did so under oath The trial. (ἀνθυπωμοσία). If the plea for delay were refused by the court, and it were the defendant who failed to appear, judgment went by default; in the absence of the plaintiff, the case was given in favour of the defendant.
The official who had conducted the preliminary inquiry also presided at the trial. The proceedings began with a solemn sacrifice. The plea of the plaintiff and the formal reply of the defendant were then read by the clerk. The court was next addressed first by the plaintiff, next by the defendant; in some cases there were two speeches on each side. Every litigant was legally required to conduct his own case. The speeches were often composed by professional experts for delivery by the parties to the suit, who were required to speak in person, though one or more unprofessional supporters (συνήγοροι) might subsequently speak in support of the case. The length of the speeches was in many cases limited by law to a fixed time recorded by means of a water-clock (clepsydra). Documents were not regarded as part of the speech, and, while these were being read, the clock was stopped (Goethe found a similar custom in force in Venice in October 1786). The witnesses were never cross-examined, but one of the litigants might formally interrogate the other. The case for the defence was sometimes finally supported by pathetic appeals on the part of relatives and friends.
When the speeches were over, the votes were taken. In the 5th century mussel-shells (χοιρῖναι) were used for the purpose. Each of the jurors received a shell, which he placed in one of the two urns, in that to the front if he voted for acquittal; in that to the back if he voted for condemnation. If a second vote had to be taken to determine the amount of the penalty, wax tablets were used, on which the juror drew a long line, if he gave the heavy penalty demanded by the plaintiff; a short one, if he decided in favour of the lighter penalty proposed by the defendant.
In the 4th century the mussel-shells were replaced by disks of bronze. Each disk (inscribed with the words ΨΗΦΟΣ ΔΗΜΟΣΙΑ) was about 1 in. in diameter, with a short tube running through the centre. This tube was either perforated or closed (see figs. 6 and 7 in frontispiece to Aristotle’s Constitution of Athens, ed. Sandys). One of each kind was given to every juror, who was required to use the perforated or the closed disk, according as he voted for the plaintiff or for the defendant. On the platform there were two urns, one of bronze and one of wood. The juror placed in the hollow of his hand the disk that he proposed to use, and closed his fingers on the extremity of the tube, so that no one could see whether it were a perforated disk or not, and then deposited it in the bronze urn, and (with the same precaution to ensure secrecy) dropped the unused disk into the wooden urn. The votes were sorted by persons appointed by lot, and counted by the president of the court, and the result announced by the herald. For any second vote the same procedure was adopted (Aristotle, u.s., c. 68 of Kenyon’s Berlin text).
Pecuniary penalties were inflicted both in public and in private suits; personal penalties, in public suits only. Personal penalties included sentences of death or exile, or different degrees of disfranchisement (ἀτιμία) with or without confiscation. Imprisonment before trial was common, Penalties. and persons mulcted in penalties might be imprisoned until the penalties were paid, but imprisonment was never inflicted as the sole penalty after conviction. Foreigners alone could be sold into slavery. Sentences of death were carried out under the supervision of the board of police called the “Eleven.” In ancient times a person condemned was hurled into a deep pit (the barathrum) in a north-western suburb of Athens. In later times he was compelled to drink the fatal draught of hemlock. Common malefactors were beaten to death with clubs. Fines were collected and confiscated property sold by special officials, called πράκτορες and πωληταί respectively. In private suits the sentence was executed by the state if the latter had a share in any fine imposed, or if imprisonment were part of the penalty. Otherwise, the execution of the sentence was left to the plaintiff, who had the right of distraint, or, if this failed, could bring an action of ejectment (δίκη ἐξούγης).
From the verdict of the heliaea there was no appeal. But, if judgment had been given by default, the person condemned might bring an action to prove that he was not responsible for such default, τὴν ἔρημον (sc. δίκην) ἀντιλαγχάνειν. The corresponding term for challenging the award of an arbitrator was τὴν μὴ οὖσαν ἀντιλαγχάνειν. He might also bring an action for false evidence (δίκη ψευδομαρτυριῶν) against his opponent’s witnesses, and, on their conviction, have the sentence annulled. This “denunciation” of false evidence was technically called ἐπίσκηψις and ἐπισκήπτεσθαι.
The large number of the jurors made bribery difficult, but, as was first proved by Anytus (in 409), not impossible. It also diminished the feeling of personal responsibility, while it increased the influence of political motives. In addressing such a court, the litigants were not above Character of the Athenian tribunals. appealing to the personal interests of the general public. We have a striking example of this in the terms in which Lysias makes one of his clients close a speech in prosecution of certain retail corn-dealers who have incurred the penalty of death by buying more than 75 bushels of wheat at one time: “If you condemn these persons, you will be doing what is right, and will pay less for the purchase of your corn; if you acquit them, you will pay more” (xxii. § 22).
Speakers were also tempted to take advantage of the popular ignorance by misinterpreting the enactments of the law, and the jurors could look for no aid from the officials who formally presided over the courts. The latter were not necessarily experts, for they owed their own original appointment to the caprice of the lot. Almost the only officials specially elected as experts were the strategi, and these presided only in their own courts. Again, there was every temptation for the informer to propose the confiscation of the property of a wealthy citizen, who would naturally prefer paying blackmail to running the risk of having his case tried before a large tribunal which was under every temptation to decide in the interests of the treasury. In conclusion we may quote the opinions on the judicial system of Athens which have been expressed by two eminent classical scholars and English lawyers.
A translator of Aristophanes, Mr B. B. Rogers, records his opinion “that it would be difficult to devise a judicial system less adapted for the due administration of justice” (Preface to Wasps, xxxv. f.), while a translator of Demosthenes, Mr C. R. Kennedy, observes that the Athenian jurors “were persons of no legal education or learning; taken at haphazard from the whole body of citizens, and mostly belonging to the lowest and poorest class. On the other hand, the Athenians were naturally the quickest and cleverest people in the world. Their wits were sharpened by the habit . . . of taking an active part in important debates, and hearing the most splendid orators. There was so much litigation at Athens that they were constantly either engaged as jurors, or present as spectators in courts of law” (Private Orations, p. 361).
Authorities.—1. Greek Law. B. W. Leist, Gräco-italische Rechtsgeschichte (Jena, 1884); L. Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs, mit Beiträgen zur Kenntnis des griechischen Rechts (Leipzig, 1891); J. H. Lipsius, Von der Bedeutung des griechischen Rechts (Leipzig, 1893); G. Gilbert, “Zur Entwickelungsgeschichte des . . . griechischen Rechtes” in Jahrb. für kl. Philologie (Leipzig, 1896); H. J. Hitzig, Die Bedeutung des altgriechischen Rechtes für die vergleichende Rechtswissenschaft (Stuttgart, 1906); R. Hirzel, Themis, Dike und Verwandtes (Leipzig, 1907); J. J. Thonissen, Le Droit criminel de la Grèce légendaire, followed by Le Droit pénal de la république athénienne (Brussels, 1875).
2. Attic Law. (a) Editions of Greek texts: I. B. Télfy, Corpus juris Attici (Pest and Leipzig, 1868); Aristotle’s Constitution of Athens, ed. Kenyon (London, 1891, &c., and esp. ed. 4, Berlin, 1903); ed. 4, Blass (Leipzig, 1903); text with critical and explanatory notes, ed. Sandys (London, 1893); Lysias, ed. Frohberger (Leipzig, 1866–1871); Isaeus, ed. Wyse (Cambridge, 1904); Demosthenes, Private Orations, ed. Paley and Sandys, ed. 3 (Cambridge, 1896–1898); Against Midias, ed. Goodwin (Cambridge, 1906); Dareste, Haussoullier, Th. Reinach, Inscr. juridiques grecques (Paris, 1891–1904). (b) Modern treatises: K. F. Hermann, De vestigiis institutorum
