« PrejšnjaNaprej »
and social science. We are here concerned with the subjective aspect of the facts which have been collected, and which has as usual to be gathered from stray hints and implied ideas.
Perhaps the first essential for a proper development of business habits, and for a proper confidence in the stability of trade, is a good and complete system of law, promptly and firmly administered. Without this all contracts are suspicious, and all speculations mere gambling. As we might expect, then, Attic trade could not exist without a system of Attic law, upon the general features of which the following reflections may be interesting to the reader.
If he will look into any of the Classical Dictionaries or books of antiquities on this subject, the first point which will strike him is the rich and varied terminology-the host of technical words employed, showing a well-developed and complicated system. The schoolboy who knows no law is puzzled with demurrers, and bills of exception, and judgments by default, and affidavits and counter-affidavits; every case appears to be tried in two or three forms, and no decision seems final without appeals, and motions for rehearing. All these things indicate an advanced and systematised conception of law, and the orators justly appeal to them as a proof of culture. Not only were there a vast number of distinct courts and boards of magistrates, before each of which the procedure was distinct; but a variety of procedure was allowed in the case of each single definite action. 'Solon,' says Demosthenes', In Androtion, p. б01.
'did not grant to those who sought redress from injury some single course of procedure in each case, but many and divers. For he knew that men would not be equal in boldness and daring, and that variety of procedure would help the simpler and gentler litigant. He desired then that every one should receive even-handed justice. How can this be done? By permitting many avenues for attacking wrongdoers; as, for example, in the case of theft. Is your case strong, and are you confident? arrest him; you run a risk of paying 1000 drachmæ (if the case goes against you). Are you too weak for this? lay an information before the archons; they will do it for you. Are you afraid even of this? bring an action against him. Are you a diffident person, and so poor as not to be able to pay the 1000 drachmæ ? have a (preliminary) trial for theft with him before an arbitrator, and you run no danger.'
Thus, in his famous speech against Aristocrates, the same orator (p. 643) gives an exhaustive discussion of the laws concerning homicide, in which he enumerates and explains six distinct procedures, but in this case not for the same crime, but for six different shades of homicide-accidental, justifiable, in self-defence, and so forth. Similarly in the case of personal quarrels, it is noted that the Attic law allowed an action for every step in the quarrel, from the use of language 'calculated to provoke a breach of the peace,' through common and aggravated assault, up to grievous bodily harm and manslaughter. I wonder,' says a speaker1, 'whether there is any excuse or pretence discovered 1 Dem. against Conon, p. 1263.
among you which will save a man from punishment if he is convicted of assault and battery. For the laws with a very different spirit foresaw the excuses which would necessarily arise, and guarded against their being allowed to develop; as, for example, there are actions for using offensive language, which they say are intended to prevent people from being betrayed into striking one another, by the use of bad language. Again, there are actions for insult (aixías), for this purpose, that any one being worsted in a quarrel should not defend himself with a stone or other such weapon1, and rather await the vindication of the law. Again, there are actions for wounding, lest from wounding manslaughter might arise. The most trivial, I suppose, that for abusive language, guards against the final and worst offence, that manslaughter may not arise from a man being gradually led on from bad language to blows, from blows to wounds, from wounds to death; but in the laws there is redress for each of these, that they may not be decided by the passion or caprice of the individual.' It was indeed thought disreputable to bring an action for abusive language, an offence atoned for easily by an apology; but in theory this is the fundamental conception of all sound law, and no nation can be said to have realised it till they have abandoned the license of the tongue as well as the carrying of arms, and so openly declared their. 1 The usual natural weapon seems to have been an oσтракоν. Whether this means a shell or a potsherd I am unable to tell. Cp. Lysias, p. 37. Cp. Lysias, Or. x. p. 117, ἀνελεύθερον γὰρ καὶ λίαν φιλόδικον εἶναι νομίζω κακηγορίας δικάζεσθαι. But in this case the defendant had asserted that the plaintiff had killed his own father.
dependence on law, as opposed to force. Thucydides notices this carrying of arms as a sign of barbarism in the Greece of former days, and Aristophanes introduces the same feature as a mark of troublous and disturbed times in his Lysistrata1. The suppression of piracy abolished this habit, which was so completely gone from Attic usage that there were not even laws against it. It may indeed have been also a provision of the Peisistratids for their own safety, continued afterwards on democratic grounds.
But even more marked than this abandonment of arms was the strong feeling about üßpis, as they called it, about personal violence, which they would not allow even towards slaves. The writer of the tract on the Athenian polity complains indeed of the absurd independence allowed to slaves, who dressed like freemen, and were not afraid to meet you in the street. 'Of course,' says Æschines, the lawgiver was not so anxious about slaves as to make such a law, but what he did insist upon was the repression of the habit of personal violence, which was fostered through violent treatment of slaves by freemen, and of the poor by the rich.' Hence any man, whether concerned in the outrage or not, was allowed to prosecute the offender. There is a very interesting oration of Isocrates on the question (Or. 20) where he plainly puts forward, that it is not the hurt, but the insult, which is intolerable to a free citizen, just as now-a-days to touch a man in anger constitutes an
ν. 556 ἢν παύσωμεν πρώτιστον μὲν ξὺν ὅπλοισιν ἀγοράζοντας καὶ μαινομένους κ.τ.λ.
2 In Timarch. p. 26, Tauch.
assault. At the end of the speech the orator calls upon the crowd present to stand forward and join him in the accusation. This strong feeling was even made the lever of raising odium against a man. Apollodorus complains that his enemy Nicostratus sent in a city boy from the neighbouring house to pull up his roses, and injure the garden, in order that if Apollodorus struck or bound him, they might bring an action for ßpis against him1.
These examples are from the criminal code of the Athenians, which was perhaps developed at an earlier period, and therefore may have been the most complete; but the very same variety of procedure, the very same accuracy of subdivision, and the same sensitiveness may be found in their civil code. Closely allied to this feature, in fact another aspect of it, is the subdivision of legal business, and the confining of each special court to a special class of business. Thus the Eleven, who were the chief police officers at Athens, were occupied with burglars and thieves and with. offenders condemned to death. The chief archon had charge of heiresses and orphans. The king archon tried cases of impiety, and those that arose in gymnasia. The polemarch, again, investigated all cases of patrons and clients. There remain the generals, and they were concerned with the navy and army, but not with mercantile shipping. We have, on the other hand, in the extant fragments of Aristotle's lost Toλiteíαi, a list of special boards of magistrates supervising trade Demosth. in Nicostr. p. 1251. 2 Cp. Dem. in Lacrit. p. 940.