Euryptolemus, son of Peisianax, and certain others brought a summons against Callixeinus, saying that he had made an illegal proposal (‘graphe paranomon’).
(Xenophon, Hellenica 1.7.12)
This safeguard should have stopped the issue there, and the matter should have been referred to the dikasteria to rule on the legality of the Boule’s probouleuma, as proposed by Callixeinus. However, a majority of the people deliberately ignored this and, after threats to Euryptolemus and his supporters that they would face the same charge as the generals, they were forced to withdraw their graphe paranomon. At this point the second safeguard came into operation:
Some of the prytaneis said they would refuse to put such an illegal proposal to the vote.
(Xenophon, Hellenica 1.7.14)
This action should have again stopped the progress of the probouleuma, but they in turn were threatened with being accused on the same charge as the generals and in a state of fear agreed to put the Boule’s probouleuma to the vote.
There was now only one course of action left open to Euryptolemus – to put forward an alternative probouleuma to that of the Boule. He spoke in defence of the generals and:
With these words Euryptolemus proposed a motion that the men should be tried individually under the decree (psephisma) of Cannonus; the Council’s motion was that they should all be tried together on a single vote. A show of hands was taken to decide between the two motions, and at first that of Euryptolemus was carried; but when Menecles lodged an objection under oath, a second vote was taken and the Council’s motion was carried. After that the eight generals who had fought the battle were found guilty and the six present were put to death.
(Xenophon, Hellenica 1.7.34)
An objection under oath could be made, when the count was close, resulting in a recount. Later the Athenians repented of their irresponsible behaviour and in c.400 changed the rules so that the Ecclesia could not try generals in such a way. Nevertheless the events above confirm that the Ecclesia was genuinely sovereign as it even had the power to act unconstitutionally.
The Heliaea
The Heliaea, or the dikasteria as it generally became known when it was subdivided into smaller panels, was considered to be as vital as the Ecclesia for the maintenance of democracy. The main sources for the working of the law courts in Athens are Aristophanes’ plays, especially The Wasps; Aristotle’s Ath. Pol. and the fourth-century orators. Solon had created the Heliaea as a court of appeal, staffed by the people, which offered redress from the legal decisions of the ‘archons’ and the ‘Areopagus’. Ephialtes’ reforms in 462/1 marked a dramatic change in the demos’ control of the legal system by establishing the Heliaea as a court of primary jurisdiction, dealing with the vast majority of private (‘dike’) and public (‘graphe’) cases. The demos believed that justice in a democracy would be better served by itself passing judgement in its own courts rather than by the jurisdiction of the aristocratic archons and the Areopagus. The Areopagus retained jurisdiction over intentional homicide, wounding and poisoning with an intent to kill, arson and the destruction of the sacred olive trees; the archons within a short time became merely the presidents of the courts, ensuring that the correct procedures were carried out but having no powers of judgement.
As the demos was to have direct control of the judicial process, there was a need for 6,000 jurors to be enrolled. This number was a quorum of the people, i.e. it was judged to be representative of all the citizens and was the necessary number for such procedures as ostracism. Every year 6,000 jurors (‘dikastai’), probably 600 from each of the ten tribes, were chosen by lot from those who volunteered for service (Ath. Pol. 24.3). However, as with the Boule, an Athenian had to be thirty years of age, a limit which was probably introduced to ensure the maturity of the jurors. Aristophanes’ Wasps, which is a comedy about how thoroughly and obsessively the jurors carried out their duties, suggests that the biggest proportion of the 6,000 consisted of old men. This vast number of jurors also made it very difficult for any criminal to tamper with the juries. However, there needed to be an incentive to attract so many men to serve and this was provided for by Pericles:
Moreover Pericles was the first man to provide payment for jury service.
(Aristotle, Ath. Pol. 27.3)
The pay was two obols a day, which was increased to three obols by 425. The pressure of legal business after the reforms of Ephialtes led to the breaking down of the Heliaea into smaller panels or dikasteria. There was probably a maximum of ten dikasteria, in each of which there were possibly 500 jurors, as in the fourth century. This obviously made the system more efficient by shortening the time of waiting for trial but it would be fair to say that it was no longer a judgement by the whole people as it was previously in the Heliaea. Since there was no appeal court now (or ever) in existence, miscarriages of justice by the smaller dikasteria could not be rectified:
Procleon: ‘And what’s more we do these things and are not accountable unlike all the other public officials.’
(Aristophanes, Wasps 587)
The law courts ensured personal liberty and thus, apart from a few specified crimes over which a public official could exercise jurisdiction and fine a citizen up to 50 drachmas, it was left to the ordinary individual to initiate the lawsuit, issue the summons and conduct the case in court. There were no professional lawyers, no Director of Public Prosecutions nor the police to carry out these functions on behalf of the state. Thus there was always the danger that some crimes might go unreported because of the level of commitment required in the prosecution. Therefore the Athenians decided to introduce a system of incentives for certain crimes, about which they were particularly concerned. In such crimes, for example where it was alleged that the defendant owed money to the state, the prosecutor became an ‘interested party’, which resulted in his receiving a percentage of the fine imposed in a successful prosecution. This proved to be too successful as it led to the rise of ‘sycophants’–a class of ruthless ‘professional’ prosecutors – who were feared by the demos owing to their eloquence in court and their frequent resort to blackmail.
Court procedure
The first stage of a legal action was for the prosecutor or claimant to get the defendant before the correct magistrate – each one had a particular area of responsibility, for example, the chief archon dealt with family affairs and religious festivals – to make his formal accusation. To do this he had to issue a summons to a defendant in front of a witness:
Anticleon: ‘Here is another man who is coming, as it seems, to summons you and he’s brought a witness as well.’
Citizen: ‘I am summonsing you for assault, old man.’
(Aristophanes, Wasps 1415–17)
When both litigants appeared before the magistrate, the prosecutor gave the magistrate a statement of his charge and, in some criminal cases, paid his fee. In a number of private cases, both litigants would pay. The magistrate would then set a date for the ‘anakrisis’ (preliminary inquiry). The main purpose of the anakrisis was to clarify the exact points of dispute and what was being alleged. The magistrate would put questions to both litigants and they to each other. This was crucial for the legally untrained citizens, as it would help them to present their case in court and to establish what supporting evidence they would need to produce on the day of the trial. When the exact nature of the dispute was clear, oaths were taken and the date of the trial was fixed.
Before the trial it was the responsibility of each litigant to gather together the necessary evidence, for example a copy of the relevant law, contract. The lack of professional guidance from a fully qualified lawyer could have led to injustice, as crucial laws might not have been known or important corroborative evidence might not have been presented in court. In addition, certain evidence was inadmissible in court, i.e. that of disfranchised citizens, women and children, even though it might have had a crucial bearing on the outcome of the case. The treatment of slaves’ evidence was certainly the most barbarous
aspect in the presentation of evidence. It was assumed by the Athenians that slaves would naturally give untruthful testimony unless persuaded otherwise by torture:
Indeed you [gentlemen of the jury] consider torture to be the most reliable of all tests both in private and public suits … since none of the tortured was ever proved to have made false statements gained under torture.
(Demosthenes 30.37)
It must have been tempting for a slave to say whatever was necessary to bring the torture to a swift end, with little thought or care as to its veracity.
From the middle of the fifth century each juror was allotted to the same ‘dikasterion’ and the same magistrate for the whole year. As each magistrate dealt with specific cases, for example the ‘polemarch’ covered all cases concerning metics, the dikasteria became relatively specialized and therefore more effective in that area of law. However, the Athenians changed this procedure at the end of the fifth century owing to their fear about the corruption of the juries, since the litigants would know in advance which panels would be judging their case. The new system involved the drawing of lots on each day to establish which panel would be sitting with which magistrate for that day. The Athenians were more concerned in this instance with justice rather than efficiency. The litigants conducted their own cases in court and this tended to favour the eloquent and experienced litigant. Thus there arose the professional speechwriters, who for money would compose an appropriate speech for the litigant to learn by heart. In certain circumstances, close friends or relatives could be called upon to have a share in the speech making, but it was essential for the litigant to take a major part, if he did not wish to forfeit the jurors’ goodwill. The litigants usually supplied witnesses to provide the bulk of the evidence appertaining to the facts. The speaker would put questions to the witness or invite him to say what he knew or confirm the speaker’s statement. However, there was no possibility for the opposing litigant to cross-examine the witness and thus challenge his evidence before the jurors, as in a modern law court.
The content of the speeches was markedly different from the rigorous relevance of modern courts. The speeches were full of self-glorification and self-pity, liberally spiced with abuse of one’s opponent:
Philocleon: ‘What flattery can one not hear there, addressed to a juryman? Some bewail their poverty and exaggerate their misfortunes until, in the end, they make them out to be equal to – mine. Others tell us tales, some try a comic fable of Aesop’s, others crack jokes, to make me laugh and lose my anger, and if we are not persuaded by these devices, the defendant leads in his small children, his girls and his boys, by the hand and I listen. They huddle together and bleat like lambs; and then, trembling, the father on their behalf beseeches me, as if I were a god, to acquit him …’
(Aristophanes, Wasps 563–71)
Although this must have provided great variety and entertainment to the jurors, it was designed to stir the emotions of the jurors rather than appeal to their intellects, clouding rather than clarifying the key issues.
In both the private and the public cases the decisions of the jury were reached on the same day. This greatly speeded up the hearing of cases and prevented for the most part a backlog of cases; however, those involved with more complex cases must have experienced difficulty in presenting all of their evidence and producing arguments of sufficient depth to support their case. Aristotle informs us that four private cases were heard in one day but only one public case (Ath. Pol. 67.1). In private cases both the prosecution and the defence were allowed two speeches each so that both sides were given the opportunity to reply to the other side’s arguments. In a public case the day was divided into three parts – the first part to the prosecutor, the second part to the defendant and the third part to the assessment of penalty, if a guilty verdict was returned. Each part of the day was fairly and carefully timed by the use of a ‘clepsydra’ (a water clock), whose unit of measure was ‘choes’ (one chous was about three minutes). Both litigants were allowed 44 choes of time to present their cases. When the speeches were finished, there was immediate voting by the jurors. It was this aspect that gives rise to the gravest doubts about the fair-mindedness of the dikasteria. There was no impartial judge or legal expert to sum up and advise the jury in its deliberations as to the relevant points of law, especially vital when the nature of the evidence is considered. In addition, there was no formal discussion between jurors before voting on the guilt or innocence of the defendant, which would have allowed those in doubt about some points of the case to have their concerns resolved, resulting in a more informed judgement.
When it came to the vote, each juror possessed a pebble (later bronze voting tokens), which he placed in one of the two urns, denoting guilt or innocence. These votes were then counted and, unlike in a modern court where a guilty verdict of the jury has to be unanimous or at times ten out of twelve jurors, conviction could be obtained by a small majority:
Philocleon: ‘I know my most dashing act. It was the time when, although only a lad, I caught the runner Phayllus, chasing/prosecuting [a pun on the Greek word] him for slander, and won the contest by two votes.’
(Aristophanes, Wasps 1205–7)
The fact that a defendant could be found guilty by two votes out of 500, when it was evident that nearly half of the jury was convinced of the defendant’s innocence, again casts doubt on the equity of these courts. However, there was a safeguard to deter malicious or trivial prosecutions – if the prosecutor failed to gain one-fifth of the votes cast, he was fined 1,000 drachmas and forbidden to bring a similar type of prosecution again (unless it was an eisangelia – see next section).
If the vote went against the defendant, the third part of the day took place, called ‘the assessment of penalty’. Although certain cases had their penalty fixed by law, there was no general penal code in Athens. It was left to the prosecutor to suggest his preferred penalty and to the defendant to offer his alternative penalty. The jury then had to vote on one or other of the two suggested penalties. No compromise was allowed. Apart from the intense pressure that must have been felt by the defendant, it also meant that there was no consistency of punishment, as two people being tried on the same charge on different days could receive widely differing punishments.
For all the doubts raised, the Athenians believed that they had gained ‘isonomia’ (equality before the law) and that this system was far better than that which had existed before Ephialtes’ reforms. Pericles in his Funeral Speech in 431/0 spoke for the mass of the Athenian people, when he said:
in public affairs we do not break the law because it commands our great respect and we are obedient to those who hold public office and to the laws, especially those that are laid down for the protection of the oppressed.
(Thucydides, Peloponnesian War 2.37)
The political role of the Heliaea
There were three kinds of prosecution which gave political power to the Heliaea (or dikasteria): the graphe paranomon, which was mainly used against the politically active citizens in the Ecclesia; the eisangelia or denunciation before the Ecclesia, which was mainly used against the generals, or before the Boule, which was mainly used against the other public officials; and the dokimasia and the euthuna of all public officials.
The graphe paranomon was a public charge against a citizen for proposing a decree or law, which was unconstitutional. Any person in the Ecclesia could make a ‘hypomasia’ (an allegation under oath) and this would lead to the suspension of the decree until its validity had been tested in the dikasteria by the prosecutor bringing the graphe paranomon against the proposer of the decree. This process could be used when, for example, a decree was being proposed that was illegal or in conflict with a previous law, or had been passed without a Boule’s probouleuma, or by a citizen who had been deprived of his citizen rights (‘atimia’), or if a decree in a particular instance sanctioned execution without trial for homicide, which was in direct conflict with the powers of the Areopagus. The case w
ould be tried in a dikasterion of at least 500 (or 501) jurors, and the jury, in cases of importance, could be increased by further panels of 500. If the prosecutor won the case, then the decree was declared null and void. Therefore the dikasteria had the power to overturn the decisions of the Ecclesia. However, in this situation, the demos did not believe that it had been in the wrong in passing or trying to pass an illegal proposal but that it had been deceived by a clever orator, who accordingly should be severely punished.
The graphe paranomon was the main protection for the state against irresponsible legislation by politically active citizens, the rhetores (orators), who were not subject to the formal, statutory accountability of public officials. There is every reason to believe from the sources that it was used frequently and that most politically active citizens had to face this charge at least once in their public lives. This political power was probably ceded to the dikasteria for the very sound reason that it would lead to better decision-making. Decrees could well be passed in situations fraught with high emotion, and a referral to the dikasteria by means of the graphe paranomon provided an excellent cooling-off period for more objective consideration. Moreover, most of the jurors would probably have been present in the Ecclesia, when the proposal was aired, and would have had the time for studied reflection, aided by their own maturity. In addition, the jurors would have the whole day to consider the issue, whereas in the Ecclesia it would have been one of a number of topics on the agenda to be discussed, and the issue would be decided by an accurate count of the ballot and not by a show of hands.
Aspects of Greek History (750–323BC) Page 39