or ἀφαιρέσεως δίκη
was an action brought to recover damages for the attempt to deprive the
plaintiff of his slave; not where the defendant claimed a property in the
slave, but where he asserted him to be a freeman, or, as in Aeschin.
§ 62, a public slave. As the condition
of slavery at Athens incapacitated a man from taking any legal step in his
own person, if a reputed slave wished to recover his rights as a freeman, he
could only do it by the assistance of one who was himself a freeman,1
and who was said ἐξαιρεῖσθαι
ἀφαιρεῖσθαι αὐτὸν εἰς ἐλευθερίαν
(Lys. c. Pancl.
§ 10; ὡς
14) in libertatem vindicare.
If the ἀφαιρούμενος,
in resisting the capture of the
reputed slave on the part of him who claimed to be the slave's master
p. 1358.40; Isae. pro Eumath.
fr. 15, or
ἄγειν εἰς δουλείαν,
used actual violence, he was subject to a δίκη
: if, on the other hand, he meant to contest the
master's right, the proper course was to go before the polemarch
ed. Lipsius, p. 56), and the master held
the slave to bail (κατεγγυᾶν πρὸς τῷ
πρὸς τὸν πολέμαρχον,
Isocr. l.c.), and
becomes bail (διεγγυᾶται,
Pasion for seven talents, Isocr. l.c;.
Stephanus and two others in [Dem.] l.c.:
cf. Plat. Legg.
xi. p. 914 E,
ὁ δ᾽ἀφαιρούμενος ἐγγυμτὰς τρεῖς
etc.). It was the duty of the polemarch to set the
man at liberty pendente lite.2
At the trial before οἱ
which followed, the reputed owner had to prove his
right to the slave, and, if successful, obtained such compensation as the
jury chose to award, this being a τιμητὸς
ed. Lipsius, p. 221), and the defendant
had to pay to the treasury a sum equal to the damages ([Dem.] c.
p. 1328.20); hence it is strange that such actions might
be settled out of court, as in the case of Pittalacus, the public slave whom
Hegesander laid hold of, asserting that he was his slave (Aeschin. c.
§ 63; cf. [Dem.] c. Ncaer.
1360.45 ff.). The jury would probably take into consideration, in estimating
the damages, whether the slave was to be returned to the owner (cf. Lys,
12) or not.
In a speech of Isocrates (Trapez.
§ 13 f. and 49) the
defendant, a banker, from whom it is sought to recover a deposit, is charged
with having asserted the freedom of his own slave, in order to prevent his
being examined by torture respecting the sum of money deposited in his
hands. This is remarkable, because the speaker and Menexenus never claimed
the slave as their own; the case seems to prove that not only the person who
asserted that the slave was his, but also the person who had an interest in
the matter that a slave should be recognised as such, was entitled to the
ἀγωγὴ εἰς δουλείαν.
ed. Lipsius, pp. 657-665.)