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EXAIRE´SEOS DIKE´

EXAIRE´SEOS DIKE´ (ἐξαιρέσεως 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. c. Tim. § 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 or ἀφαιρεῖσθαι αὐτὸν εἰς ἐλευθερίαν (Lys. c. Pancl. § 10; ὡς ἐλεύθερον ὄντα, Isocr. Trapez. § 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 (ἄγειν, [Dem.] c. Neaer. p. 1358.40; Isae. pro Eumath. fr. 15, or ἄγειν εἰς δουλείαν, Aeschin. l.c., Isae. l.c. fr. 16), used actual violence, he was subject to a δίκη βιαίων: if, on the other hand, he meant to contest the master's right, the proper course was to go before the polemarch (Att. Process, ed. Lipsius, p. 56), and the master held the slave to bail (κατεγγυᾶν πρὸς τῷ πολεμάρχῳ, [Dem.] l.c.; πρὸς τὸν πολέμαρχον, Isocr. l.c.), and the ἀφαιρούμενος 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, δ᾽ἀφαιρούμενος ἐγγυμτὰς τρεῖς καταστήσας, etc.). It was the duty of the polemarch to set the man at liberty pendente lite.2 At the trial before οἱ τετταράκοντα 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 [p. 1.765]ἀγών (Att. Process, ed. Lipsius, p. 221), and the defendant had to pay to the treasury a sum equal to the damages ([Dem.] c. Theocr. 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. Tim. § 63; cf. [Dem.] c. Ncaer. p. 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, c. Pancl. 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. (Att. Process, ed. Lipsius, pp. 657-665.)

[C.R.K] [H.H]

1 The same in the Gortyn Code (1.14, 15), but ἅγων (εἰς δουλείαν) πρὸ δίκας was forbidden (1.2).

2 From Lys. c. Pancl. 9 it would seem that the ἄγων had to set at liberty the slave he claimed, if surety was given that next day some one would reclaim him as a free man.

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