ANAK´RISIS
ANAK´RISIS (
ἀνάκρισις), the preliminary investigation of a case by an archon
or other magistrate before it was brought before the courts of justice at
Athens. For the purpose of ascertaining whether the action would lie, both
parties, the complainant and defendant, were summoned separately; and if
either of them failed to appear without putting in a formal application for
delay (
ὑπωμοσία), judgment went against
him by default (Demosth.
c. Theocrin. p. 1324.8). The
anakrisis began by both the plaintiff and defendant taking an oath, the
former thereby attesting that he had brought the charge honestly and
conscientiously; the latter, that to the best of his knowledge he was
innocent. According to the grammarians, the oath of the former was called
προωμοσία, that of the latter
ἀντωμοσία, the two together
διωμοσία or
ἀμφιορκία [
AMPHIORKIA]. (Pollux, 8.55;
Hesych. sub voce
ἀντωμοσία; Timaeus, s. v.
ἀντωμοσία, with Ruhnken's note.) But the word.
προωμοσία does not occur in the
classical authors, and the other two are not used consistently. Thus we have
ἀντωμοσία on the part of a plaintiff
(Isae.
Dicaeog. § 1), or of the affidavits of the
different claimants to an inheritance (ib. § 16;
Astyph. § 34; Demosth.
c. Macart. p.
1051.3): the
διωμοσία of a prosecutor in
criminal cases (Antiphon.
de caed. Her. § 11;
de Choreut. § § 49, 51), and that of
the accused (Demosth.
c. Aristocr. p. 643.69). It was further
promised by both, that the subsequent prosecution and defence should be
conducted with fairness and justice. (Harpocrat., Suid.,
Hesych. sub voce
ἀντωμοσία: Pollux, 8.122.) If the
defendant did not bring forward any objection to the matter being brought
before a court of justice, the proceeding was termed
εὐθυδικία. (Demosth.
c. Phorm. p. 908.4;
c. Steph. i. p. 1103.6.) Such objections might be raised
in regard to the competency of the court to which the matter was to be
referred, or in regard to the form in which the accusation was brought
forward, and the like (Lys.
c. Pancl. § 5; Pollux,
8.57);
[p. 1.122]they were always looked upon with suspicion
(Demosth.
c. Leoch. p. 1097.57 f;
c. Phorm. p.
944.2); but, nevertheless, they were not unfrequently resorted to by
defendants, either in the form of a
διαμαρτυρία, or that of a
παραγραφή. In the case of a
διαμαρτυρία, the plaintiff had to bring forward witnesses to
show that the objections raised by the defendant were unfounded; and if this
could not be done, the defendant had a right to bring witnesses to show that
his objections were founded on justice, and in accordance with the laws. But
each of the litigant parties might denounce the witnesses of his opponent as
false witnesses, and thus a secondary lawsuit might be interwoven with the
principal one. If the
διαμαρτυρία was
resorted to in a civil case, the party who made use of it had to deposit a
sum of money (
παρακαταβολή); and when the
plaintiff lost his suit, he had to pay to the defendant a fine for having
raised an accusation without foundation. In lawsuits about the succession to
the property of a person, the
διαμαρτυρία
was the only form in which objections could be raised. (Bekker,
Anecd. p. 236.) The
παραγραφὴ was a special plea in bar of a suit, which was made by
the defendant and argued without calling any witnesses, and in this also the
loser had to pay a fine to the opposite party (Pollux, 8.58). See PARAGRAPHÉ; and for other forms of
resistance at this stage, ANTIGRAPHÉ,
When these had been set aside, the prosecution proceeded in regular course.
These are, in general, the proceedings in the
ἀνάκρισις: and from what thus took place, it is clear that
the main part of the evidence on both sides was brought out in the
ἀνάκρισις, and at the regular trial in court
the main object was to work upon the minds of the judges through the
influence of the orators, with reference to the evidence brought out in the
ἀνάκρισις. The latter, therefore,
consisted of the simple evidence which required no oratorical discussion,
and which was contained,--1, in laws; 2, in documents; 3, in the statement
of free witnesses; 4, in the statement of slaves; and 5, in oaths. In all
these kinds of evidence, one party might have recourse to the
πρόκλησις,--that is, call upon the other party
to bring forward such other evidence as was not already given. (Demosth.
c. Steph. i. p. 1106;
c. Pantaen. p. 978,
§ § 40, 41.) There was, however, no strict obligation to
comply with such a demand (Demosth.
c. Olymp. p. 1181.50),
and in certain cases the party called upon might, in accordance with
established laws, refuse to comply with the demand: for instance, persons
belonging to the same family could not be compelled to appear as witnesses
against one another. (Demosth.
c. Timoth. p. 1195.30.) But if
the reading of a document, throwing light upon the point at issue, was
refused, the other party might bring in a
δίκη εἰς
ἐμφανῶν κατάστασιν.
In regard to the laws which either party might adduce in its support, it must
be observed, that copies of them had to be read in the anakrisis, since it
would have been difficult for any magistrate or judge to fix, at once, upon
the law or laws bearing upon the question at issue. In what manner the
authorities were enabled to insure faithful and correct copies being taken
of the laws, is not known; but it is highly probable that any one who took a
copy in the archives had to get the signature of some public officer or
scribe to attest the correctness of the copy.
Other legal documents, such as contracts (
συνθῆκαι,
συγγραφαί), wills, book of accounts, and other records
(Demosth.
pro Phorm. p. 950.18 ff.), not only required the
signature and seal of the party concerned, but their authenticity had to be
attested by witnesses (Demosth.
c. Onet. p. 869.21).
Evidence (
μαρτυρία) was given not only by
free-born and grown--up citizens, but also by strangers or aliens; and even
from absent persons evidence might be procured [EKMARTYRIA], or a statement of a deceased person might be referred
to [AKOĒN MARTYREIN]. If any one was
called upon to bear witness (
κλητεύειν), he
could not refuse it; and if he refused, he might be compelled to pay a fine
of 1000 drachmas (Demosth.
de Fals. Leg. p. 396.176, p.
403.198; Aeschin.
c. Timarch., § 46), unless he
could establish by an oath (
ἐχωμοσία),
that he was unable to give his evidence in the case. Any one who had
promised to bear witness, and afterwards failed to do so, became liable to
the action of
δίκη λιπομαρτυρίου or
βλάβης. The evidence of an avowed
friend or enemy of either party might be rejected (Aeschin.
c.
Timarch. § 47). All evidence was either taken down in
writing as it was given by the witnesses, or, in case of its having been
sent in previously in writing, it was read aloud to the witness for his
recognition, and he had generally to confirm his statement by an oath.
(Demosth.
c. Steph. i. p. 1115.45, p. 1119.58, ii. p. 1130.5;
c. Con. p. 1269.41; Aeschin.
de Fals. Leg.
§ 126;
D. L. 4.7.) The testimony of
slaves was valid only when extorted by instruments of torture, to which
either one party might offer to expose a slave, or the other might demand
the torture of a slave. (Demosth.
c. Nicostr. p. 1253.22;
c. Aphob. p. 855.38;
c. Onet. p. 874.37;
c. Steph. ii. p. 1135.21.)
A distinct oath was required in cases where there were no witnesses or
documents, but it has been remarked above that oaths were also taken to
confirm the authenticity of a document, or the truth of a statement of a
witness. [
JUSJURANDUM]
If the evidence produced was so clear and satisfactory that there was no
doubt as to who was right, the magistrate could decide the case at once,
without sending it to be tried in a court. During the anakrisis as well as
afterwards in the regular court, the litigant parties might settle their
dispute by an amicable arrangement (Pollux, 8.143). But if the plaintiff, in
a public manner, dropped his accusation, he became liable to a fine of 1000
drachmas, and incurred partial atimia (Demosth.
c. Theocrin.
p. 1323.6); in later times, however, this punishment was not always
inflicted, and in civil cases the plaintiff only lost the sum of money which
he had deposited. When the parties did not come to an understanding during
the anakrisis, all the various kinds of evidence brought forward were put
into a vessel called
ἐχῖνος, which was
sealed and entrusted to some officer to be kept until it was wanted on the
day of trial. (Demosth.
c. Conon. p. 1265.27; Schol.
ad
Aristoph. Wasps 1427.) The period
[p. 1.123]between the conclusion of the preliminary
investigation and until the matter was brought before a court, was
considered to belong to the anakrisis; and that period was differently fixed
by law, according to the nature of the charge. In cases of murder, the
period was never less than three months, and in others the trial in court
commenced on the thirtieth day after the beginning of the anakrisis: as e.
g. in the
δίκαι ἐρανικαί, ἐμπορικαί,
μεταλλικαί, and
προικός
(Harpocrat. s. v.
ἔμμηνοι δίκαι: Pollux,
8.63, 101), and the day fixed for the trial was called
κυρία τοῦ νόμου (Demosth.
c. Mid. p.
541.84; p. 544.93). In other cases, the day was fixed by the magistrate who
conducted the anakrisis. But either party might petition for a postponement
of the trial, and the opposite party might oppose the petition by an oath
that the ground on which the delay was sought for was not valid, or
unsatisfactory. (Harpocrat. s. v.
ἀνθυπωμοσία; Pollux, 8.60.) Through such machinations, the
decision of a case might be delayed to the detriment of justice; and the
annals of the Athenian courts are not wanting in numerous instances in which
the ends of justice were thwarted in this manner for a number of years.
(Demosth.
c. Mid. p. 541.82; comp. Meier and
Schömann,
Att. Process, p. 622; Platner,
Process u. Klagen, i. p. 135 ff.; C. F. Hermann,
Staatsalterth. § 141; Schömann,
Antiquit. Jur.
publ. Graec. p. 279; Wachsmuth,
Hellen.
Alterthumskunde, ii. p. 262, &100.2nd edit.) The
examination which an archon underwent before he entered on his office, was
likewise called
ἀνάκρισις (Demosth.
c. Eubul. p. 1319.66; p. 1320.70).
[
L.S] [
W.W]
