confiscation; cowardice and desertion with disfranchisement.__A usurper of civic privileges was condemned to be sold for a slave. For the fraudulent entry of a debt in the public register, the culprit was made debtor in lieu of the aggrieved party. In these and the like cases, when the defendant was found guilty, the jury had nothing further to do: the penalty of the law followed their verdict. Upon impeachments also, where the council or the assembly had declared what punishment should attend conviction, the jury had no power to impose any other. In the great majority of cases however as in prosecutions for theft, bribery, outrage, impiety, adultery, maltreatment of parents and orphans, moving illegal decrees, embezzlement of public money, &c. &c.—the penalty was not fixed or declared beforehand; and the jury who found the defendant guilty, had to pass sentence upon him by a second verdict.1 But how was this to be done? No such plan was adopted as in our own country, where, when the law does not declare the sentence (as it does in treason and murder), it confers upon the judge a certain range of discretionary power, naming always the maximum and sometimes also the minimum of punishment which may be inflicted. Here, as in other instances, we find how much was left to the discretion of the prosecutor at Athens. It was his duty to name a penalty in the indictment or other instrument of accusation which he preferred to the magistrate. Upon the conviction of his opponent, he was called upon to address the jury in support of the proposed penalty, unless he chose to name a more lenient one, which it was competent for him to do with leave of the court. To this he might be led either by a merciful feeling on his own part, or by the solicitation of the defendant or his friends; or he might be guided by an expression of feeling on the part of the jury; who frequently during the trial of a cause gave token of their favour or disfavour by gestures, murmurs, and clamour. The prosecutor, having made the proposal which he elected to abide by, addressed the jury with such arguments in support of it as he deemed necessary. The defendant was then allowed to speak in mitigation of punishment; but he was required to make some counter-proposition, and to name the penalty which he was content to suffer. Friends often spoke in his behalf, extenuating his offence, or appealing to the mercy of the court; and it was a common thing for a man, who thought himself in great peril, to produce his wife and children at the bar, in order to excite compassion.❜ (1) See Meier and Schömann, Att. Proc. 189, &c. (2) The prosecutor_was said τιμᾶσθαι, the defendant ἀντιτιμᾶσθαι, οι ἑαυτῷ τιμᾶσθαι, the jury τιμᾷν. (3) Which Aristophanes parodies in the Wasps (v. 975) upon the trial of the dog: ποῦ τὰ παιδία ; ἀναβαίνετ ̓ ὦ πόνηρα, καὶ κνυζούμενα Compare v. 568. Between the two proposals of the contending parties the jury had to decide, and to choose one of them. As to this point there has been a difference of opinion among writers on Attic law. It does at first seem strange, that the jury had no power to adopt a middle course, and to pass what sentence they thought reasonable, irrespective of what the parties offered to their choice. A little reflexion however will convince us, that it could not well be otherwise with a jury so constituted as the Athenian. We know that an English jury of only twelve men, who can put their heads together and confer, find it difficult often to decide upon the question of damages. One man proposes this sum, and one that.; and after a long discussion the dispute is ended by splitting the difference in some way or other. But how could this be done at Athens with a panel of two or three hundred jurors, and sometimes five hundred or a thousand? A discussion among so many, whether the penalty should be death or banishment or a fine of ten or twenty talents or more or less, would have led to inextricable confusion. It could not have taken place except aloud and openly, and would almost have required a regular debate, which must have occupied a considerable time. We have no mention of any such thing in the Attic writers; indeed we have no evidence that the jury ever conferred at all. With respect to their first verdict, there could be no use in a conference, when it was decided by a majority of votes. But the second verdict was given in like manner. ballot excludes the notion of their coming to an agreement, and is hardly compatible with the supposition that each juror might propose a sentence, but is quite consistent with their deciding between the proposals of the two adversaries. The That some inconvenience as well as injustice was occasioned by this plan is not to be doubted. Yet we must not suppose it was a common practice to present widely different estimates to the jury, so as to leave them no alternative between the extreme of severity and the extreme of lenity. The difficulty was usually avoided by the prudence or moderation of the parties, or by an arrangement between them or their friends. The prosecutor might always apprehend that, if he laid the penalty too high, the jury would take compassion on his opponent; while the defendant might fear to irritate them by putting it too low. The trial afforded to both an opportunity of feeling the pulse of the jury. If they appeared to be greatly incensed against the defendant, the prosecutor might safely ask for a severe punishment if they were not so, it was prudent to relax in his demand. Similar views would prevent the defendant from asking for too light a penalty, or would induce him to effect a compromise. The friends were allowed to consult. Entreaties passed from one to the other in the hearing of the jurors, who (except in heinous cases where public justice demanded severity) were favourable to such arrangements, and gave the parties time to adjust them. Thus the very dilemma in which the adversaries were placed would often incline them to be reasonable. That on some occasions they should be obstinate and refuse to accommodate each other, was also from the nature of things to be expected.1 A few examples will illustrate the course of proceeding. It is mentioned in the Oration against Midias (ante, p. 124) that, when Evander had been convicted of profaning the Mysteries, the jury showed an inclination to pass a capital sentence upon him, but, Menippus the prosecutor having accepted terms of compromise, they were satisfied with fining him. Arethusius was convicted by Apollodorus of having sworn falsely to a summons. The penalty of death was proposed by the prosecutor; a fine of a talent by the defendant. The jury were about to divide, and (says the speaker) "they would have passed sentence of death, but I entreated the jury, rather than they should do anything of the sort through me, to accept the penalty offered by my opponent." (Demosthenes, cont. Nicostratum, 1252, 1254.) The same Apollodorus was indicted by Stephanus for having proposed that decree, which would have enabled the Athenians to apply the surplus of their revenue to the carrying on of a necessary war, instead of lavishing it on public amusements. The penalty was laid at fifteen talents. Stephanus was requested to lower it, but in vain: he insisted on going to the jury for the full amount. The jury divided, and imposed a fine of one talent. Theomnestus, son-in-law of Apollodorus, relates this on the trial of Neæra, and bitterly complains of the peril which Apollodorus had been made to incur. The peril consisted in this; that the jury had no other choice, than between the fifteen talents of Stephanus and the single talent offered by Apollodorus. (See the Oration against Neæra, 1347.) The like complaint is made in the Oration against Theocrines: (ad finem.) Theocrines had procured the conviction of the speaker's father, and proposed a fine of ten talents. He withstood all entreaties to make a reduction, and the defendant was sentenced to pay the ten talents. The son afterwards prosecutes Theocrines to revenge his father, and assigns this cruelty as his principal motive. The story of Socrates, as told in Plato's Apologia, affords another illustration. He having been tried on a charge of impiety, and convicted by a majority of three votes, Melitus, his accuser, proposed that he should be punished with death. Socrates, when it came to his turn to say what punishment he deserved, first declares that he ought to be entertained in the public dining-hall as a reward for his services; then, (to comply with the form of law,) he offers one mina, saying, that was all he could afford to pay; but shortly after (at the earnest request of friends) he names thirty minas, for which they offer to be bail. The jury look upon this behaviour as an insult to (1) This subject is fully treated of in my article Tíunua in the Archæological `Dictionary. the court, and pass sentence of death upon him. Some of them, who had voted for his acquittal, voted for the capital punishment. The general rule was, that only one penalty could be imposed by the court, as we learn from the Oration against Leptines: (ante, p. 52.) In certain cases however the jury were empowered by statute to inflict an extra penalty; as for instance, imprisonment besides a fine; which any individual juror was at liberty to propose.1 Here there would be no difficulty. The law specified how the party might be punished; and the jury divided upon the single question, whether the extra punishment should be inflicted or not. The verdict of condemnation, whatever it was, having been declared by the presiding magistrate, was duly entered on record. The next thing for us to consider is IV. The execution of the sentence. The manner in which this was enforced depended on the nature of the case.2 If the sentence were death or imprisonment, the presiding magistrate gave notice thereof to the Eleven, who took the necessary steps to see it inflicted. If a man was condemned to slavery, he was handed over to the Poletæ, or Commissioners of public sales, who forthwith sold him for a slave to the highest bidder. Banishment was left to be executed by the party himself, who was bound to quit the country within the prescribed period. If he failed to do so, or if he returned without permission, he was punishable with death; and any one who harboured him was liable to the same fate. A disfranchised person had to abstain from exercising the privileges which he had forfeited. If he attempted to do otherwise, he might be proceeded against immediately by information and attachment. Upon sentence of confiscation, whether combined with other punishment or not, it became the duty of the Demarch (or chief officer of the defendant's township), sometimes of the Eleven, and sometimes of special Inquisitors, to discover what goods and effects he had, that were liable to be seized by the state, and to furnish an inventory of them to the Poleta. Any private individual might give the like information, as we have seen (ante, p. 341), and the prosecutor was usually on the alert to enforce the law. Inventories thus taken of confiscated property were read in the first regular assembly of each Presidency, that all parties who had any claim might have due notice. When a fine was imposed, the magistrate who tried the cause gave notice of it to the Practores or Collectors, whose business it was to enter it forthwith in the public register, and to demand payment. (1) The juror making the proposal was said яроσтiμãoα, the whole jury voting for the extra penalty, προστιμᾷν. (2) Upon the whole of this subject, see Meier and Schömann, Att. Proc. 739, &c. When the fine or any part of it went to a temple, notice was sent also to the Treasurers of the God or Goddess to whom the temple belonged. The money, when paid to the Collectors, was handed over by them to the Apodectæ or Receivers, or to the Treasurers of the temple, as the case might be; and the name of the debtor was then erased from the register. If the fine was unpaid after the expiration of the ninth Presidency, or, in case it were imposed for a personal outrage, for eleven days after the entry in the register, it was doubled, and an entry made accordingly. During the whole time that it remained unpaid, the debtor was excluded from the enjoyment of his civic rights, and was liable also to imprisonment. If he died without satisfying it, the disfranchisement extended to his children.1 As to applications for a new trial and relief against unjust verdicts, I must refer to the Appendix following. APPENDIX IX. CIVIL PROCEDURE. WHAT has been said concerning the presidency of different magistrates in judicial proceedings at Athens, applies to civil causes as well as to criminal. Almost all important civil jurisdiction belonged to the Archons. We have seen how the chief Archon had cognizance of inheritance causes, and disputes concerning family rights between citizen and citizen: (ante, p. 256,)—the King-archon, of disputes concerning priesthoods and sacerdotal privileges: (p. 258,)—the Polemarch, of those which concerned the personal or family rights of aliens: (p. 259,)-while the Thesmothetæ, or Judges strictly so called, had the most extensive jurisdiction, embracing all that was not specially assigned to others: (p. 260.) Before the Generals came disputes connected with the property-tax and the trierarchy. (Meier and Schömann, Att. Proc. 550.) The forty itinerant judges tried certain cases of assault and trespass to goods. Of them and of the arbitrators I shall speak elsewhere. I am now about to explain the proceedings in a civil action. The general idea of an action is a suit at law, in which there is a plaintiff and a defendant. Such, in a narrow sense of the term, is the meaning of dikŋ. But there were divers causes at Athens, in which (strictly speaking) there was neither plaintiff nor defendant, but all the parties were similarly situated with respect to the subject of contest: for example, when adverse claims were made to an inheritance or an heiress; or when families or individuals went to law about a priesthood or its appendant privileges; or upon disputes (1) See article Пpdκтоpes in the Archæological Dictionary; Böckh's Public Economy of Athens, Transl. ii. 119, &c. |