by Will Durant
2. Law
The earliest Greeks appear to have conceived of law as sacred custom, divinely sanctioned and revealed; themis* meant to them both these customs and a goddess who (like India’s Rita or China’s Tao or Tien) embodied the moral order and harmony of the world. Law was a part of theology, and the oldest Greek laws of property were mingled with liturgical regulations in the ancient temple codes.36 Perhaps as old as such religious law were the rules established by the decrees of tribal chieftains or kings, which began as force and ended, in time, as sanctities.
The second phase of Greek legal history was the collection and co-ordination of these holy customs by lawgivers (thesmothetai) like Zaleucus, Charondas, Draco, Solon; when such men put their new codes into writing, the thesmoi, or sacred usages, became nomoi, or man-made laws.* In these codes law freed itself from religion, and became increasingly secular; the intention of the agent entered more fully into judgment of the act; family liability was replaced by individual responsibility, and private revenge gave way to statutory punishment by the state.37
The third step in Greek legal development was the accumulative growth of a body of law. When a Periclean Greek speaks of the law of Athens he means the codes of Draco and Solon, and the measures that have been passed—and not repealed—by the Assembly or the Council. If a new law contravenes an old one, the repeal of the latter is prerequisite; but scrutiny is seldom complete, and two statutes are often found in ludicrous contradiction. In periods of exceptional legal confusion a committee of nomothetai, or law determiners, is chosen by lot from the popular courts to decide which laws shall be retained; in such cases advocates are appointed to defend the old laws against those who propose to repeal them. Under the supervision of these nomothetai the laws of Athens, phrased in simple and intelligible language, are cut upon stone slabs in the King’s Porch; and thereafter no magistrate is allowed to decide a case by an unwritten law.
Athenian law makes no distinction between a civil and a criminal code, except that it reserves murder cases for the Areopagus, and in civil suits leaves the complainant to enforce the court’s decree himself, going to his aid only if he meets with resistance.38 Murder is infrequent, for it is branded as a sacrilege as well as a crime, and the dread of feud revenge remains if the law fails to act. Under certain conditions direct retaliation is still tolerated in the fifth century; when a husband finds his mother, wife, concubine, sister, or daughter in illicit relations he is entitled to kill the male offender at once.39 Whether a killing is intentional or not it has to be expiated as a pollution of the city’s soil, and the rites of purification are painfully rigid and complex. If the victim has granted pardon before dying, no action can be brought against the killer.40 Beneath the Areopagus are three tribunals for homicide cases, according to the class and origin of the victim, and according as the act was intentional, or excusable, or not. A fourth tribunal holds court at Phreattys on the coast, and tries those who, while exiled for unpremeditated homicide, are now charged with another and premeditated murder; being polluted by the first crime, they are not allowed to touch Attic soil, and their defense is conducted from a boat near the shore.
The law of property is uncompromisingly severe. Contracts are rigorously enforced; all jurors are required to swear that they “will not vote for an abolition of private debts, or for a distribution of the lands or houses belonging to Athenians”; and every year the head archon, on taking office, has proclamation made by a herald that “what each possesses he shall remain possessor and absolute master thereof.”41 The right of bequest is still narrowly limited. Where there are male children the old religious conception of property, as bound up with a given family line and the care of ancestral spirits, demands that the estate should automatically pass to the sons; the father owns the property only in trust for the family dead, living, and to be born. Whereas in Sparta (as in England) the patrimony is indivisible and goes to the eldest son, in Athens (very much as in France) it is apportioned among the male heirs, the oldest receiving a moderately larger share than the others.42 As early as Hesiod we find the peasant limiting his family in Gallic fashion, lest his estate be ruinously divided among many sons.43 The husband’s property never descends to the widow; all that remains to her is her dowry. Wills are as complex in Pericles’ day as in our own, and are couched in much the same terms as now.44 In this as in other matters Greek legislation is the basis of that Roman law which in turn has provided the legal foundations of Western society.
3. Justice
Democracy reaches the judiciary last of all; and the greatest reform accomplished by Ephialtes and Pericles is the transfer of judicial powers from the Areopagus and the archons to the heliaea. The establishment of these popular courts gives to Athens what trial by jury will win for modern Europe. The heliaea* is composed of six thousand dicasts, or jurors, annually drawn by lot from the register of the citizens; these six thousand are distributed into ten dicasteries, or panels, of approximately five hundred each, leaving a surplus for vacancies and emergencies. Minor and local cases are settled by thirty judges who periodically visit the demes or counties of Attica. Since no juror may serve more than a year at a time, and eligibility is determined by rotation, every citizen, in the average of chance, becomes a juror every third year. He does not have to serve, but the payment of two—later three—obols per day obtains an attendance of two or three hundred jurors for each panel. Important cases, like that of Socrates, may be tried before vast dicasteries of twelve hundred men. To reduce corruption to a minimum, the panel before which a case is to be tried is determined by lot at the last minute; and as most trials last but a day we do not hear much of bribery in the courts; even the Athenians find it difficult to bribe in a moment three hundred men.
Despite expedition, the courts of Athens, like courts the world over, are usually behind their calendar, for the Athenians itch to litigate. To cool this fever public arbitrators are chosen by lot from the roster of citizens who have reached their sixtieth year; the parties to a dispute submit their complaint and defense to one of these, again chosen by lot at the last minute; and each party pays him a small fee. If he fails to reconcile them he gives his judgment, solemnized by an oath. Either party may then appeal to the courts, but these usually refuse to hear minor cases that have not been submitted to arbitration. When a case is accepted for trial the plea is entered or sworn to, the witnesses make their depositions and swear to them, and all these statements are presented to the court in written form. They are sealed in a special box, and at a later date they are opened and examined, and judgment is given, by a panel chosen by lot. There is no public prosecutor; the government relies upon private citizens to accuse before the courts anyone guilty of serious offenses against morals, religion, or the state. Hence arises a class of “sycophants,” who make such charges a regular practice, and develop their profession into an art of blackmail; in the fourth century they earn a good living by bringing—or, better, threatening to bring—actions against rich men, believing that a popular court will be loath to acquit those who can pay substantial fines.* The expenses of the courts are mostly covered by fines imposed upon convicted men. Plaintiffs who fail to substantiate their charges are also fined; and if they receive less than a fifth of the jurors’ votes they are subject to a lashing, or to a penalty of a thousand drachmas ($1000). Each party in a trial usually acts as his own lawyer, and has to make in person the first presentation of his case. But as the complexity of procedure rises, and litigants detect in the jurors a certain sensitivity to eloquence, the practice grows of engaging a rhetor or orator, versed in the law, to support the complaint or defense, or to prepare, in his client’s name and character, a speech that the client may read to the court. From these special rhetor-pleaders comes the lawyer. His antiquity in Greece appears from a remark in Diogenes Laertius that Bias, Wise Man of Priene, was an eloquent pleader of causes, who always reserved his talents for the just side. Some of these lawyers are attached to the courts as exegetai, or interpre
ters; for many of the jurors have no more legal knowledge than the parties to the case.
Evidence is ordinarily presented in writing, but the witness must appear and swear to its accuracy when the grammateus, or clerk of the court, reads it to the jurors. There is no cross-examination. Perjury is so frequent that cases are sometimes decided in the face of explicit sworn evidence. The testimony of women and minors is accepted only in murder trials; that of slaves is admitted only when drawn from them by torture; it is taken for granted that without torture they will lie. It is a barbarous aspect of Greek law, destined to be outdone in Roman prisons and Inquisition chambers, and perhaps rivaled in the secret rooms of police courts in our time. Torture, in Pericles’ day, is forbidden in the case of citizens. Many masters decline to let their slaves be used as witnesses, even when their case may depend upon such testimony; and any permanent injury done to a slave by torture must be made good by those who inflicted it.46
Penalties take the form of flogging, fines, disfranchisement, branding, confiscation, exile, and death; imprisonment is seldom used as a punishment. It is a principle of Greek law that a slave should be punished in his body, but a freeman in his property. A vase painting shows a slave hung up by his arms and legs, and mercilessly lashed.47 Fines are the usual penalty for citizens, and are assessed on a scale that opens the democracy to the charge of fattening its purse through unjust condemnations. On the other hand a convicted person and his accuser are in many cases allowed to name the fine or punishment that they think just; and the court then chooses between the suggested penalties. Murder, sacrilege, treason, and some offenses that seem minor to us are punished with both confiscation and death; but a prospective death penalty may usually be avoided before trial by voluntary exile and the abandonment of property. If the accused disdains flight, and is a citizen, death is inflicted as painlessly as possible by administering hemlock, which gradually benumbs the body from the feet upward, killing when it reaches the heart. In the case of slaves the death penalty may be effected by a brutal cudgeling.48 Sometimes the condemned, before or after death, may be hurled over a cliff into a pit called the barathron. When a sentence of death is laid upon a murderer it is carried out by the public executioner in the presence of the relatives of the victim, as a concession to the old custom and spirit of revenge.
The Athenian code is not as enlightened as we might expect, and advances only moderately upon Hammurabi’s. Its basic defect is the limitation of legal rights to freemen constituting hardly a seventh of the population. Even free women and children are excluded from the proud isonomia of the citizens; metics, foreigners, and slaves can bring suit only through a patron citizen. Sycophantic blackmail, frequent torture of slaves, capital punishment for minor offenses, personal abuse in forensic debate, the diffusion and weakening of judicial responsibility, the susceptibility of jurors to oratorical displays, their inability to temper present passions with a knowledge of the past or a wise calculation of the future—these are black marks against a system of law envied throughout Greece for its comparative mildness and integrity, and sufficiently dependable and practical to give to Athenian life and property that orderly protection which is so necessary for economic activity and moral growth. One test of Athenian law is the reverence that nearly every citizen feels for it: the law is for him the very soul of his city, the essence of its beneficence and strength. The best judgment of the Athenian code is the readiness with which other Greek states adopt a large part of it. “Everyone would admit,” says Isocrates, “that our laws have been the source of very many and very great benefits to the life of humanity.”49 Here for the first time in history is a government of laws and not of men.
Athenian law prevails throughout the Athenian Empire of two million souls while that Empire endures; but for the rest Greece never achieves a common system of jurisprudence. International law makes as sorry a picture in fifth-century Athens as in the world today. Nevertheless external trade requires some legal code, and commercial treaties (symbola) are described by Demosthenes as so numerous in his time that the laws governing commercial disputes “are everywhere identical.”50 These treatises establish consular representation, guarantee the execution of contracts, and make the judgments given in one signatory nation valid in the others.51 This, however, does not put an end to piracy, which breaks out whenever the dominant fleet is weakened, or relaxes its watchfulness. Eternal vigilance is the price of order as well as of liberty; and lawlessness stalks like a wolf about every settled realm, seeking some point of weakness which may give it entry. The right of a city to lead foraging expeditions upon the persons and property of other cities is accepted by some Greek states so long as no treaty specifically forbids it.52 Religion succeeds in making temples inviolable unless used as military bases; it protects heralds and pilgrims to Panhellenic festivals; it requires a formal declaration of war before hostilities, and the granting of a truce, when asked, for the return and burial of the dead in battle. Poisoned weapons are avoided by general custom, and prisoners are usually exchanged or ransomed at the recognized tariff of two minas—later one mina ($100)—each;53 otherwise war is nearly as brutal among the Greeks as in modern Christendom. Treaties are numerous, and are solemnized with pious oaths; but they are almost always broken. Alliances are frequent, and sometimes generate lasting leagues, like the Delphic Amphictyony in the sixth century and the Achaean and Aetolian Leagues in the third. Occasionally two cities exchange the courtesy of isopoliteia, by which each gives to the other’s freemen the rights of citizenship. International arbitration may be arranged, but the decisions arrived at in such cases are as often as not rejected or ignored. Towards foreigners the Greek feels no moral obligation, and no legal one except by treaty; they are barbaroi*—not quite “barbarians,” but outsiders—aliens speaking outlandish tongues. Only in the Stoic philosophers of the cosmopolitan Hellenistic era will Greece rise to the conception of a moral code embracing all mankind.
4. Administration
As early as 487, perhaps earlier, the method of election in the choice of archons is replaced by lot; some way must be found to keep the rich from buying, or the knaves from smiling, their way into office. To render the selection less than wholly accidental, all those upon whom the lot falls are subjected, before taking up their duties, to a rigorous dokimasia, or character examination, conducted by the Council or the courts. The candidate must show Athenian parentage on both sides, freedom from physical defect and scandal, the pious honoring of his ancestors, the performance of his military assignments, and the full payment of his taxes; his whole life is on this occasion exposed to challenge by any citizen, and the prospect of such a scrutiny presumably frightens the most worthless from the sortition. If he passes this test the archon swears an oath that he will properly perform the obligations of his office, and will dedicate to the gods a golden statue of life-size if he should accept presents or bribes.54 The fact that chance is allowed to play so large a part in the naming of the nine archons suggests the diminution which the office has suffered since Solon’s day; its functions are now in the nature of administrative routine. The archon basileus, whose name preserves the empty title of king, has become merely the chief religious official of the city. Nine times yearly the archon is required to obtain a vote of confidence from the Assembly; his actions and judgments may be appealed to the boule or the heliaea; and any citizen may indict him for malfeasance. At the end of his term all his official acts, accounts, and documents are reviewed by a board of logistai responsible to the Council; and severe penalties, even death, may avenge serious misconduct. If the archon escapes these democratic dragons he becomes, at the end of his year of office, a member of the Areopagus; but this, in the fifth century, is a well-nigh empty honor, since that body has lost nearly all its powers.
The archons are but one of many committees which, under the direction and scrutiny of the Assembly, the Council, and the courts, administer the affairs of the city. Aristotle names twenty-five such groups, and estimates the numb
er of municipal officials at seven hundred. Nearly all of these are chosen annually by lot; and since no man may be a member of the same committee twice, every citizen may expect to be a city dignitary for at least one year of his life. Athens does not believe in government by experts.
More importance is attached to military than to civil office. The ten strategoi, or commanders, though they too are appointed for a year only, and are at all times subject to examination and recall, are chosen not by lot but by open election in the Assembly. Here ability, not popularity, is the road to preferment; and the ekklesia of the fourth century shows its good sense by choosing Phocion general forty-five times, despite the fact that he is the most unpopular man in Athens and makes no secret of his scorn for the crowd. The functions of the strategoi expand with the growth of international relations, so that in the later fifth century they not only manage the army and the navy, but conduct negotiations with foreign states, and control the revenues and expenditures of the city. The commander in chief, or strategos autokrator, is therefore the most powerful man in the government; and since he may be re-elected year after year, he can give to the state a continuity of purpose which its constitution might otherwise render impossible. Through this office Pericles makes Athens for a generation a democratic monarchy, so that Thucydides can say of the Athenian polity that though it is a democracy in name it is really government by the greatest of the citizens.
