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 interpreters; 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 isonomiaof 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.