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KLOPES DIKÉ or GRAPHÉ (κλοπῆς δίκη or γραφή). The action for theft at Athens might be either private or public, and in the former case either before a diaetetes or a court, probably that of the thesmothetae (Att. Process, p. 66, with Lipsius' note 101). The various modes of procedure are enumerated by Demosthenes (c. Androt. p. 601, §§ 26, 27). The safest course for a diffident prosecutor was the private action before an arbitrator (δικάζου κλοπῆς πρὸς διαιτητὴν καὶ οὐ κινδυνεύσεις): he might also proceed by way of γραφή, and, when the delinquent [p. 1.463]was detected in the act, by ἀπαγωγὴ or ἐφήγησις. To these, however, a penalty of 1000 drachmas was attached in case he failed to obtain a fifth of the votes. In some cases, a person who had been robbed was permitted by the Attic law to enter the house in which he suspected his property to be concealed, and institute a search for it (φωρᾶν,, Aristoph. Cl. 499; Plat. Legg. xii. p. 954 A). We are not informed how this right of search was enforced, but it was probably on the oath of the plaintiff; and, as the above passages show, the searcher himself was closely watched, and had to divest himself of all clothing in which anything could be concealed about his person (γυμνὸς χιτωνίσκον ἔχων, ἄζωστος, Plat. l.c.).

As regards the penalties of theft, the old Solonian law drew a distinction, which prevailed also in later times, between trifling and serious offences; based partly on the amount stolen, but partly also on a principle not unknown to modern legislation, that crime for which there are special facilities must be repressed by severer punishments. (Cf. Arist. Probl. 29.14, p. 952 a, 17.) Amounts under 10 drachmas were treated as “bagatelles” (Teuffel ap. Pauly, s. v. τεσσαράκοντα), and the Forty (? other magistrates as well) could decide them summarily, probably by a fine (ἐπιβολή): above 10 drachmas, they had to call in diaetetae [TETTARAKONTA, HOI]. Next came “ordinary” theft. This was limited to cases of stealing in the day-time to an amount not exceeding 50 drachmas, and from a place not specially protected by law. The criminal upon conviction was obliged to restore twofold if the property were recovered; if it were not, twofold plus a certain sum for damages, called ἐπαίτια: the court might inflict an additional penalty (προστιμᾶν, προστίμημα), and the offender be put in the stocks (ποδοκάκκη) five days and as many nights (Lex ap. Dem. c. Timocr. p. 733.105). (The statement in the text of this “law” that, if the specific thing stolen were not recovered, a tenfold penalty was exacted, is inconsistent with the language of the orator himself in § 114, and has been sufficiently disproved: see Wayte ad loc.; J. H. Lipsius, n. 748 on Att. Process, p. 358.)

In the “aggravated” cases of stealing in the day-time property of greater amount than 50 drachmas, or above 10 drachmas from the gymnasia or public baths (λωποδυσία) or from the ports, or by night anything whatever (and by night the owner was permitted to wound and even kill the depredator in his flight), the law expressly directed an ἀπαγωγὴ to the Eleven, and, upon conviction, the death of the offender (Dem. c. Timocr. pp. 735-6, §§ 113, 114). (According to some, the λωποδύτης might be capitally punished for the smallest thefts, but the above is the most probable explanation: the question turns on the punctuation of the passage c. Timocr. § 114, where see Wayte's note.) If the γραφὴ were adopted, it is probable that the punishment was fixed by the court; but both in this case, and in that of conviction in a δίκη, the disfranchisement (ἀτιμία) of the criminal would be a necessary incident of conviction.

The above three passages of Demosthenes afford better materials for explaining the law of κλοπὴ than the late grammarians: but it is to be observed that the inserted document of Timocr. § 105 is inferior in authority to the words of Demosthenes himself in the other two. There were separate actions τοιχωρυχίας, τυμβωρυχίας, βαλαντιοτομίας, λωποδυσίας, κλοπῆς δημοσίων or ἱερῶν χρημάτων: against the κλοπὴ δημοσίων the εἰσαγγελία, φάσις, and ἀπογραφὴ were specially directed. (Att. Process, p. 356 ff. with Lipsius' notes; Thalheim, Rechtsalterth. § 7 in Hermann-Blümner, = Privatalt. § 62, Hermann).

[J.S.M] [W.W]

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