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DIAETETAE (διαιτηταί), arbitrators, umpires. The Diaetetae mentioned by the Athenian orators were of two kinds: the one public and appointed by lot (κληρωτοί), the other private and chosen (αἱρετοί) by the parties who referred to them the decision of a disputed point, instead of trying it before a court of justice; the judgments of both, according to Aristotle, being founded on equity rather than law (ό γὰρ διαιτητὴς τὸ ἐπιεικὲς ὁρθ̂ͅ, δὲ δικαστὴς τὸν νόμον, Rhet. 1.13.19).

The institution of the public Diaetetae is placed by some modern writers in the time of the orator Lysias; but they were in all probability of far higher antiquity. So natural a mode of settling disputes, it is well argued by Schömann and Perrot, could hardly fail to have been adopted in the most primitive times. In the period for which we have more particular information, a certain number of citizens, somewhat advanced in years--the minimum age being fifty (Suidas, s. v. διαιτηταί), or, as Schömann inclines to believe, sixty (Pollux, 8.126; Hesychius)--were appointed to serve as Diaetetae in such cases as might arise. With respect to their numbers there is some difficulty. The scholiast Ulpian states it at 440, i.c. 44 from each tribe (ἦσαν δὲ τέσσαρες κὰ τεσσαράκοντα [p. 1.621]καθ᾽ ἑκαστὴν φυλήν, ad Dem. Mid. p. 542.86). This number appears unnecessarily large; the orators often mention only one arbitrator in each case; and an easy correction of Ulpian's words was suggested--ἦσαν δὲ τεσσαράκοντα, τέσσαρες καθ᾽ ἑκάστην φυλήν--making the total number 40. Of late years, however, an inscription has been discovered of about B.C. 325, naming the Diaetetae who actually served in that year, and had been rewarded with a garland for their conduct in office (first published in Ross, Demen von Attika, p. 22; also in Rangabé‘s collection, No. 1163). The numbers mentioned from the different tribes vary between 16 in the Cecropis and 3 in the Pandionis, in all 104 names. If, as is probably to be assumed, an equal number was chosen from each tribe, there must have been at least 160 of them. The fact that not all the Diaetetae of the year are commemorated in the inscription is easily explicable; those who were most in request would be summoned oftenest, some perhaps not at all (Schömann, Antiq. 1.472, E. T.; Perrot, Essai, p. 292).

The inference, alike from the scholiast and the inscription, that each tribe had its own Diaetetae, is further supported by Demosthenes (c. Everg. p. 1142.12) and Lysias (c. Pancl. § 2). There is, however, no ground for the conjecture that they were chosen by the members of each tribe for itself; or again, for a longer period than a year. Like the dicasts, with whom they had much in common, and other ἀρχαὶ κληρωταί, they must have been elected annually in the Ecclesia. A passage in Isaeus (δύο ἔτη τοῦ διαιτητοῦ τὴν δίαιταν ἔχοντος, pro Euphil. § 11, ed. Scheibe: printed as fr. 1 in older editions) has been thought to indicate a longer tenure; we must suppose that it was sometimes necessary or convenient to re-elect an arbitrator for the decision of a particular case. The Diaetetae unquestionably, no less than the Heliastae, gave their verdicts on oath. We read sometimes of their taking oaths previous to giving judgment in the particular cases which came before them (Isae. Dicaeog. § 32; Dem. c. Callipp. p. 1244.30): and from this it has been inferred that no general oath was exacted from them before they entered upon their duties. But Hudtwalcker, Schömann, and Perrot all maintain that they took an oath of office ; it may have been a simpler and less solemn version of the Heliastic oath given in Demosthenes. (c. Timocr. pp. 746-7; § § 149-151).

The Diaetetae of the different tribes appear to have sat in different places,--as temples, halls, and courts of justice, if not wanted for other purposes. Those of the Oeneid and Erechtheid tribes met in the heliaea (Dem. c. Everg. p. 1142.12); we read of others holding a court in the Delphinium (c. Boeot. ii. p. 1011.11; Isae. pro Euphil. § 9), and also in the στοὰ ποικίλη (c. Steph. i. p. 1106.17). Again, we are told of slaves being examined by the Diaetetae sitting for that purpose, under the appellation of βασανισταί [TORMENTUM], in the Hephaisteion (Isocr. Trapez. § 15). Moreover, we are told of private arbitrators meeting in the temple of Athena on the Acropolis; and, if the amended reading of Pollux (8.126) is correct, we are informed by him, in general terms, that the arbitrators formerly held their courts in the temples (Διήτων ἐν ἱεροῖς πάλαι). Harpocration also (s. v.) contrasts the dicasts with the arbitrators, observing that the former had regularly appointed courts of justice (ἀποδεδειγμένα).

Another point of difference was the mode of payment, inasmuch as the dicasts received a fee for each day's attendance at the public expense (the τριώβολον), whereas the only remuneration of the Diaetetae was a drachma deposited by the plaintiff on lodgment of his plaint, and one by the defendant on lodgment of his answer (ἀντωμοσία): the same sum was paid at every ὑπωμοσία or application for postponement by the party applying. This fee was called παράστασις, and is the same as the δραχμή τοῦ λιπομαρτυπίου mentioned by Demosthenes (c. Timoth. p. 1190.19). The defendant in this case had failed to give evidence as he ought to have done, and therefore the plaintiff commenced proceedings against him for this neglect, before the arbitrators in the principal suit, the first step of which was the payment of the παράστασις.

The public arbitrators were probably not ύπεύθυνοι in the technical sense of having to give an account of their office before the Logistae [EUTHYNE]; but they were responsible in another way. Every one who had, or fancied he had, a cause of complaint against them for their decisions, might proceed against them by εἰσαγγελία, or information laid before the senate. For this purpose, says Ulpian, whose statement is confirmed by Demosthenes (c. Mid. p. 542.86) in the case of Straton, the public Diaetetae were towards the close of their year of office, and during the latter days of the month Thargelion, required to present themselves in some fixed place, probably near the senate-house, that they might be ready to answer any charge brought against them, of which they received a previous notice. The punishment, in case of condemnation, was atimia, or the loss of civic rights. According to Harpocration (s. v.), the εἰσαγγελία against the arbitrators was brought before the dicasts or judges of the regular courts; but this probably happened only on appeal, or in cases of great importance, inasmuch as the βουλὴ could not inflict a greater penalty than a fine of 500 drachmas with atimia.

As to the extent of the jurisdiction of the Diaetetae, Pollux (8.126) states, that in former times no suit was brought into a court before it had been investigated by the Diaetetae (πάλαι οὐδεμία δίκη πρὶν ἐπὶ διαιτητὰς ἐλθεῖν εἰσήγετο). There can be but little doubt that the word πάλαι here refers to a time which was ancient with reference to the age of the Athenian orators, and therefore that this previous investigation was no longer requisite in the days of Demosthenes and his contemporaries. Still we find the Diaetetae mentioned by them in very many cases of civil actions, and it is not unlikely that the magistrates, whose duty it was to bring actions into court (εἰσάγειν), encouraged the process before the arbitrators, as a means of saving the state the payment which would otherwise have been due to the dicasts. Hudtwalcker is accordingly of opinion that the Diaetetae were competent to act in all cases of civil actions for restitution or compensation, but not of penal or criminal indictments (γραφαί), and, moreover, that it rested with the complainant whether his cause was brought before them in the first [p. 1.622]instance, or sent at once to a higher court of judicature. (Dem. c. Androt. p. 601.26.)

But besides hearing cases of this sort the Diaetetae sat as commissioners of inquiry on matters of fact which could not be conveniently examined in a court of justice (Dem. c. Steph. p. 1106.17), just as what is called an “issue” is sometimes directed by our own Court of Chancery to an inferior court, for the purpose of trying a question of fact, to be determined by a jury. Either party in a suit could demand or challenge (προκαλεῖσθαι) an inquiry of this sort before an arbitrator, the challenge being called πρόκλησις: a term which was also applied to the “articles of agreement” by which the extent and object of the inquiry were defined. (Dem. c. Neaer. p. 1387.124.) Many instances of these προκλήσεις are found in the orators; one of the most frequent is the demand or offer to examine by torture a slave supposed to be cognisant of a matter in dispute, the damage which might result to the owner of the slave being guaranteed by the party who demanded the examination. (Harpocr. s. v. πρόκλησις.) See also Demosthenes (c. Onet. i. p. 874.37), who observes that the testimony of a slave, elicited by torture, was thought of more value by the Athenians than the evidence of freemen. Another instance, somewhat similar to the last, was the πρόκλησις εἰς μαρτυρίαν (Pollux, 8.62), where a party proposed to his opponent that the decision of a disputed point should be determined by the evidence of a third party. (Antiphon, de Choreut. § 23.) Sometimes also we read of a πρόκλησις, by which a party was challenged to allow the examination of documents; as wills (Dem. c. Steph. p. 1104.8), deeds, bankers' books, &c. (c. Timoth. p. 1197.43). It is manifest that the forms and objects of a πρόκλησις would vary according to the matter in dispute, and the evidence which was producible; we shall, therefore, content ourselves with adding that the term was also used when a party challenged his adversary to make his allegation under the sanction of an oath, or offered to make his own statements under the same obligation. (Dem. c. Apat. p. 896.14; c. Con. p. 1269.19.) The presumption or prepossession which might arise from a voluntary oath in the last case might be met by a similar πρόκλησις, tendered by the opposite party, to which the original challenger appears to have had the option of consenting or not as he might think proper. (Dem. c. Timoth. p. 1203.65; compare Arist. Rhet. 1.15.29.) In all cases where any of these investigations or depositions were made before the Diaetetae, we may conclude with Hudtwalcker (p. 48), that they might be called as witnesses in subsequent stages of the action, either to state the evidence they had taken, or to produce the documents they had examined, and which were deposited by them in an echinus. [APPELLATIO (Greek).]

The proceedings in the trials before the public arbitrators were of two kinds: 1st, When two parties agreed by a regular contract to refer a matter in dispute to a judge or judges selected from them. 2ndly, When a cause was brought before a public arbitrator, without any such previous compromise, and in the regular course of law. The chief difference seems to have been that, in case of a reference by contract between two parties, the award was final, and no appeal could be brought before another court, though the unsuccessful party might, in some instances, move for a new trial (τὴν μὴ οὖσαν ἀντιλαχεῖν, Dem. c. Mid. p. 542.86). Except in this point, of non-appeal, an arbitrator who was selected from the public Diaetetae by litigant parties seems to have been subject to the same liabilities, and to have stood in the same relation to those parties as an arbitrator appointed by lot: the course of proceeding also appears to have been the same before both (Dem. c. Mid. p. 541), an account of which is given below. There are strong reasons in support of Hudtwalcker's opinion, that whenever a suitor wished to bring an action before one or more of the public Diaetetae, he applied to one of the many officers called εἰσαγωγεῖς (Dem. c. Lacrit. p. 940.47; c. Pantaen. p. 976.33; Pollux, 8.93), whose duty it was to bring the cause (εἰσάγειν) into a proper court. By some such officer, at any rate, a requisite number of arbitrators was allotted to the complainant; the statement of Harpocration that they were always taken from the same tribe as the defendant is rejected by Schömann as incapable of proof. Pollux (8.126) informs us that if a Diaetetes refused to hear a cause, he might be punished with atimia: but it appears that under extraordinary circumstances, and after hearing the case, a Diaetetes sometimes refused to decide himself, and referred the parties to a court of justice (Dem. c. Phorm. p. 913.21).

The process before the public Diaetetae was conducted in the following manner. After complaint made, and payment of the παράστασις, the plaintiff supported his averment by an oath, to the effect that his accusation was true, which the defendant met by a like oath as to the matter of his defence. When the oath (ἀντωμοσία) had been thus taken by the parties, the arbitrators entered upon the inquiry, heard witnesses, examined documents, and held as many conferences (σύνοδοι) with the parties as might be necessary for the settlement of the question. (See authorities, Hudtwalcker, p. 80.) The day of pronouncing judgment ( ἀπόφασις τῆς δίκης, Dem. c. Everg. p. 1153.45) was probably fixed by law, if we may judge from the name ( κυρία soil. ἡμέρα) by which it is called in the orators; it might, however, with consent of both parties, be postponed. The verdict given was countersigned by the proper authorities, perhaps by the εἰσαγωγεῖς, and thereby acquired its validity. The archons mentioned by Demosthenes (c. Mid. p. 542.85) as having signed a judgment were probably thesmothetae, as the action was a δίκη κακηγορίας, which is moreover called an ἀτίμητος δέκα μνῶν δίκη, i. e. an action where the plaintiff was not required to assess the damages (aestimare litem), the penalty, in case of a verdict for him, being determined by law: this alone is sufficient to prove that the Diaetetae sometimes decided in cases where the plaintiff sued for damages, as distinguished from those in which he sought restitution of rights or property; nor, indeed, does there seem any reason for supposing that their jurisdiction was not extended to the ἄγωνες τιμητοί, or actions where the plaintiff was required to assess or lay his damages, provided the assessment did not exceed some fixed amount. In support of this opinion we may adduce the authority of Pollux (8.127), [p. 1.623]who expressly states that the plaintiff might assess his damages before the arbitrators, when the law did not do so for him.

If the defendant were not present on the proper day to make his last defence, judgment went against him by default (ἐρήμην ὦφλε), the arbitrator being obliged to wait till the evening (ὀφὲ ἡμέρας, Dem. c. Mid. p. 541.84; c. Timoth. p. 1190.19). Sometimes, however, the time of pronouncing sentence was deferred in consequence of a deposition (ὑπωμοσία, Pollux, 8.60; Harpocr. s. v.) alleging a satisfactory cause for postponement, such as sickness, absence from town, military service, or other reasons. To substantiate these, the applicant, when possible, appeared personally; but if a party was prevented from appearing on the day of trial, by any unexpected event, the ὑπωμοσία might be made on oath by authorised friends. (Dem. c. Olymp. p. 1174.25; Pollux, 8.56.) The ὑπωμοσία might be met by a counter-statement (ἀνθυπωμοσία) from the opposite party affirming his belief that the reasons alleged were fictitious or colourable. In connexion with this point, we may observe that, according to Pollux (8.60), the motion for a new trial could only be sustained in cases where the applicant had made a ὑπωμοσία, and demurred either personally or by proxy against the passing of judgment on the regular day. Moreover, it was incumbent on the party who wished for a new trial to move for it within ten days after judgment had been pronounced, and even then he was obliged to take a kind of ὑπωμοσία, to the effect that his absence on the proper day was involuntary. (Pollux, 8.60.) In default of compliance with these conditions, the previous sentence was confirmed. (Dem. c. Mid. p. 542.86.) We are told also by Photius (Lex. s. v. μὴ οὖσα δίκη), that it was competent for plaintiff as well as defendant to move for a new trial on the grounds we have mentioned. When it was granted, the former verdict was set aside ( ἐρήμη ἐλύετο), and the parties went again before an arbitrator, probably through the instrumentality of the εἰσαγωγεῖς, to whom application had been made in the first instance. The process itself is called ἀντίληξις in Greek, and does not seem to have been confined to trials before the Diaetetae: the corresponding term in Roman law is restauratio eremodicii.

This, however, was not the only means of setting aside a judgment, inasmuch as it might also be effected by an ἔφεσις, or appeal to the higher courts [APPELLATIO (Greek)], and, if false evidence had been tendered, by a δίκη κακοτεχνιῶν (Harpocr. s.v. Dem. c. Timoth. p. 1201.56).

It remains to speak of the strictly private arbitrators, chosen by mutual agreement between contending parties, and therefore generally distinguished by the title αἱρετοί, of whom it must be understood that they were not selected from the διαιτηταὶ of the tribes. The powers with which they were invested, were, as we might suppose, not always the same; sometimes they were merely διαλλακταί, or chosen to effect a compromise or reconciliation: thus Isaeus (Dicaeog. § 32) speaks of arbitrators offering either to bring about a reconciliation if they could, without taking an oath, or to make an award (ἀποφαίνεσθαι) upon oath. Sometimes, on the other hand, they were purely referees, and then their powers depended upon the terms of the agreement of reference; if these powers were limited, the arbitration was a δίαιτα ἐπὶ ῥητοῖς (Isaeus, l.c.; Isocr. Trapez. § 19; c. Callim. § § 10, 14). The agreement was not merely a verbal contract (stipulatio), but drawn up in writing (ἐπιτροπὴ κατὰ συνθήκας, Dem. c. Phorm. p. 912.18), and signed by the parties; it fixed the number of referees (generally three), determined how many unanimous votes were necessary for a valid decision, and probably reserved or prohibited, as the case might be, a right of appeal to other authorities. (Isocr. c. Callim. § 19; Dem. c. Apat. p. 897.15.)

If there were no limitations, these Diaetetae were then, so to speak, arbitrators proper, according to the definition of Festus (p. 15, ed. Müller):--“Arbiter dicitur judex, quod totius rei habeat arbitrium et potestatem.” Moreover, no appeal could be brought against their judgment (Dem. c. Mid. p. 545.94); though we read of an instance of a party having persuaded his opponent to leave a matter to the arbitration of three persons; and afterwards, when he found they were likely to decide against himself, going before one of the public arbitrators. (Dem. c. Aphob. p. 862, § § 58, 59.) We should, however, suppose that in this case there was no written συνθήκη. The award was frequently given under the sanction of an oath, and had the same force as the judgment which proceeded from a court of law, so that it might be followed by a δίκη ἐξούλης. (Dem. c. Callipp. p. 1240.16.) We may add, that these private Diaetetae are spoken of as sitting ἐν τῷ ἱερῷ, ἐν τῷ Ἡφαιστείὼ, and that in some cases it was customary to give notice of their appointment to the proper archon or magistrate (ἀποφέρειν πρὸς τὴν ἀρχήν), who, as Hudtwalcker suggests, may have acted as an εἰσαγωγεὺς in the case. (Dem. c. Callipp. p. 1244.30; c. Mid. p. 542.86.)

(The exhaustive treatise of Hudtwalcker, Ueber die Diäteten, 1812, is still the chief authority; corrected by Meier, Die Privat-schiedsrichter und die öffentlichen Diäteten Athens, 1846; Westermann, Berichten d. Sächs. Gesellschaft d. Wissensch. 1848, p. 433 ff.; Perrot, Essai sur le Droit Public d'Athènes, 1869, pp. 284-309; Schömann, Antiq. i. pp. 471-473, E; T., 1880; Thalheim, Rechtsalterth. pp. 98, 99, 1884.) [R.W] [W.W]

(Appendix). According to our author (100.53), they were men of just sixty years of age, bound under the penalty of atimia to serve in that capacity for the first year after their superannuation from military service. Cf. below, low, App. s. v. EPONYMI.

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