or sureties, were in very frequent requisition, both in the private and
public affairs of the Athenians. Private agreements, as, for instance, to
abide by the decision of arbitrators (Dem. c. Apatur.
897.15), or that the evidence resulting from the application of torture to a
slave should be conclusive (Dem. c. Pantaen.
p. 978.40; see
also [Dem.] c. Neaer.
p. 1367.65 f.), were corroborated by
the parties reciprocally giving each other such sureties; and the same took
place generally in all money-lending or mercantile transactions (Dem.
p. 894.7, p. 895.10); and was invariably
necessary when persons undertook to farm tolls, taxes, or other public
property (Dem. c. Timocr.
p. 713.40; p. 745.144; Boeckh,
3 i. p. 187), or undertook
public works (C. I. A.
i. No. 324; fr.
a, 1. 48; fr. c,
2.1. 19). Xenophon
4, 20) suggests that sureties should also be
required from those who hired the public slaves whose purchase he proposed.
In judicial matters bail or sureties were provided upon two occasions: first,
when it was requisite that it should be guaranteed that the accused should
be forthcoming at the trial; and secondly, when security was demanded for
the satisfaction of the award of the court. In the first case, bail was very
generally required when the accused was other than an Athenian citizen,
whether the action were public or private ; the alternative was prison (Dem.
p. 890.29). Pasion the banker dragged a
subject of Satyrus, king of Bosporus, before the polemarch, and compelled
him to find sureties for six talents (Isocr. Trapez.
§ 12); although the defendant in Antiph. de caed.
§ 17 offered the three sureties required by law
(ἐγγυητὰς τρεῖς καθιστάναι κατὰ τὸν
), he was imprisoned. Athenians, on the other hand, could
not be arrested or forced to find sureties except when proceeded against by
way of apagoge, endeixis (yet see Andoc. de Myst.
2, where Andocides, against whom Cephisius had laid an ἔνδειξις ἀσεβείας,
insists on the fact of his having
remained to stand his trial οὔτ᾽ ἐγγυητὰς
καταστήσας οὔθ᾽ ὑπὸ δεσμῶν ἀναγκασθείς
as a proof of
good conscience), ephegesis, and eisangelia, the senators being bound by
their oath not to put in prison any Athenian who offers three sureties of
the same class (τὸ αὐτὸ τέλος
), unless where a man was charged with προδοσία τῆς πόλεως
or κατάλυσις τοῦ δήμου,
or where a farmer of taxes or a
surety or a collector committed default (Dem. c. Timocr.
745.144; Andoc. de Myst.
§ 93; [Andoc.] c.
§ 3; cf. Dem. c. Timocr.
and Schol. Aristoph. Eccl. 1089
). Instances of bail
accepted by the senate we find recorded in Andoc. de Myst.
§ § 17, 44; Lys. c. Agor.
§ 23, 27; cf. Xen. Hell. 1.7
; from § 35 we learn that sureties
were demanded in a Probole, which from the peculiar circumstances of the
case must be looked upon as an extraordinary measure. Being at large was
considered essential for preparing the defence (Dem. c.
p. 745.145); even the murderer was at large and could leave
the country after the first day's trial, and it is doubtful whether an
exception was made in the case of one who had murdered a parent (Pollux,
8.117; Schöm. Antiq.
292, n. 8), for the existence
of such a special law may with good reason be called into question (Diog.
50.1.59; Cic. pro Rosc. Am.
, 70); only a person convicted in a γραφὴ
who proceeded against the witnesses by a δίκη ψευδομαρτυριῶν,
was compelled to remain in
prison until the determination of his suit (Dem. c. Timocr.
p. 741.131). Surety of the other kind was demanded at the beginning of a
suit upon two occasions only: first, when a citizen asserted the freedom of
a person detained in slavery by another (Lys. c. Pancl.
§ 9 ff.); and secondly, when a litigant, who had suffered judgment
to go by default, had recommenced his action within the given time (μὴ οὖσα δίκη
); see Pollux, 8.60. After the
judgment, security of this kind was required in all mercantile and some
other private causes (Dem. c. Onet.
i. p. 873; Isae.
§ 18); Timocrates proposed a law (Dem.
p. 712, § § 39, 40; cf. also
Plat. Apol. Socr.
p. 38 B) that a debtor of the state, who had been
sentenced to imprisonment (προστιμᾶσθαι,
e. in addition to making good the debt), should be allowed (either himself
or others on his behalf) to put in such bail for the debt as the people
should approve, to be security for payment of the sum which he was adjudged
to pay within the ninth prytany (cf. Wayte on Dem. c. Timocr.
p. 704.15), this law to apply to all except the farmer of taxes, etc. and
their sureties (cf. Boeckh, Sthh
3 i. p.
409 f.). As
to the number of sureties, three were required of
the same census in the oath of the senators (cf. Antiph. dc caed.
§ 17); Socrates speaks of four (Plat.
p. 38 B); Lysias (c. Agor.
§ 23) has Νικίας καὶ Νικομένης καὶ
(cf. Plat. Legg.
xii. p. 953 E).
If the principal in a contract made default, the surety was bound to make it
good, or, if he refused to do so, might be attacked by an ἐγγύης δίκη,
if such action were brought
within a twelvemonth after the obligation was undertaken (Dem. c.
p. 901.27). So in Isae. Dicaeog.:
Dicaeogenes had stipulated that he was to keep his original one-third of the
estate and leave his adversaries the other two-thirds (ἀναμφισβήτητα,
§ 18, i.e. ἀνέπαφα,
argum.). Leochares and Mnesiptolemus became his
sureties for the performance of the engagement. When Dicaeogenes sold these
two-thirds to other persons, Leochares was sued by an ἐγγύης δλ́κη
to discharge his liability as surety. Such a
charge could be brought against the surety without any attempt being first
made to recover from the principal in the contract; hence the proverb
ἐγγύα, πάρα δ᾽ἄτα,
p. 165 A ; cf. Epicharmus in Clem. Al. Strom. vi. p. 626
As to the punishment of the bail, in case a person accused in a public action
failed to appear to take his trial, our information is very scanty. Andoc.
§ 44) says, ἐγγυητὰς τοί̀ς αὐτοῖς ἐνέχεσθαι ἐν οἷσπερ οὓς
: but Caillemer (Études s. l.
antiquit. jurid. d'Ath.,
No. 6) doubts if this held good in case
of capital punishment; however, the sureties of Agoratus made preparations
to escape from Athens together with him. From a passage in Xenophon (Xenoph. Hell. 1.7
) it appears that the law allowed the bail to secure the
person of the accused by private confinement.
The technical term for becoming surety is ἐγγυᾶσθαί
τινα, ἀναδέχεσθαι ἐγγύην,
or simply ἀναδέχεσθαι
from the 3rd century = ἐγγυητής, ἔγγυος
means to free one by giving bail; and ἐξεγγυηθῆναι
is said of a person thus set free: κατεγγυᾶν
means to require bail of an accused
person, and κατεγγυᾶσθαι
to give bail.
ed. Lipsius, pp. 703-710.)