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DIKE´ (δίκη) signifies generally any proceedings at law by one party directly or mediately against others. (Harpocrat. s.v. Pollux, 8.40, 41.) The object of all such actions is to protect the body politic, or one or more of its individual members, from injury and aggression; a distinction which has in most countries suggested the division of all causes into two great classes, the public and the private, and assigned to each its peculiar form and treatment. At Athens the first of these was implied by the terms public δίκαι or ἀγῶνες, or still more peculiarly by γραφαί: causes of the other class were termed private δίκαι or ἀγῶνες, or simply δίκαι in its limited sense (ἐκαλοῦντο αἱ γραφαὶ καὶ δίκαι, οὐ μέντοι καὶ αἱ δίκαι γραφαί, Pollux, 8.41). There is a still further subdivision of γραφαὶ into δημοσίαι and ἴδιαι, of which the former is somewhat analogous to impeachments for offences directly against the state; the latter, to criminal prosecutions, in which the state appears as a party mediately injured in the violence or other wrong done to individual citizens. Once more, there was a distinction of δίκαι πρός τινα and κατὰ τινός, which may be defined with Meier (Att. Process, p. 167) as for the non-fulfilment of obligations ex contractu and ex delicto respectively: or more simply non-criminal (πρός) and criminal (κατά). (Cf. Cucheval, Etude sur les Tribunaux Athéniens. p. 13.) It will be observed that cases frequently arise, which, with reference to the wrong complained of, may with equal propriety be brought before a court in the form of the γραφὴ last mentioned, or in that of an ordinary δίκη, and under these circumstances the laws of Athens gave the prosecutor an ample choice of methods to vindicate his rights by private or public proceedings (Dem. c. Androt. p. 601.25), much in the same way as a plaintiff in modern times [p. 1.629]may, for the same offence, prefer an indictment for assault, or bring his civil action for trespass on the person. It will be necessary to mention some of the principal distinctions in the treatment of causes of the two great classes above mentioned, before proceeding to discuss the forms and treatment of the private lawsuit.

In a δίκη, only the person whose rights were alleged to be affected, or the legal protector (κύριος) of such person, if a minor or otherwise incapable of appearing suo jure, was permitted to institute an action as plaintiff; in public causes, with the exception of some few in which the person injured or his family were peculiarly bound and interested to act, any free citizen, and sometimes, when the state was directly attacked, almost any alien, was empowered to do so. In all private causes, except those of ἐξούλης, βιαίων, and ἐξαιρέσεως, the penalty or other subject of contention was exclusively recovered by the plaintiff, while in most others the state alone, or jointly with the prosecutor, profited by the pecuniary punishment of the offender. The court fees, called prytaneia, were paid in private but not in public causes, and a public prosecutor that compromised the action with the defendant was in most cases punished by a fine of a thousand drachmas and a modified disfranchisement, while there was no legal impediment at any period of a private lawsuit to the reconciliation of the litigant parties. (Meier, Att. Process, p. 163.)

The proceedings in the δίκη were commenced by a summons to the defendant (πρόσκλησις) to appear on a certain day before the proper magistrate (εἰσαγωγεύς), and there answer the charges preferred against him. (Arist. Nub. 1221; Av. 1046.) This summons was often served by the plaintiff in person, accompanied by one or two witnesses [CLETERES], whose names were endorsed upon the declaration (λῆξις or ἔγκλημα). If there were an insufficient service of the summons, the lawsuit was styled ἀπρόσκλητος, and dismissed by the magistrate. (Hesych.) From the circumstance of the same officer that conducted the anakrisis being also necessarily present at the trial, and as there were besides dies nefasti (ἀποφράδες) and festivals, during which none, or only some special causes could be commenced, the power of the plaintiff in selecting his time was, of course, in some degree limited; and of several causes, we know that the time for their institution was particularised by law. (Aristoph. Cl. 1190.) There were also occasions upon which a personal arrest of the party proceeded against took the place of, or at all events was simultaneous with, the service of the summons; as, for instance, when the plaintiff doubted whether such party would not leave the country to avoid answering the action; and accordingly we find that in such cases (Dem. c. Zenoth. p. 890.29, c. Aristog. i. p. 788.60) an Athenian plaintiff might compel a foreigner to accompany him to the polemarch's office, and there produce bail for his appearance, or, failing to do so, submit to remain in custody till the trial. The word κατεγγυᾶν is peculiarly used of this proceeding. Between the service of the summons and appearance of the parties before the magistrate, it is very probable that the law prescribed the intervention of a period of five days. (Meier, Att. Process, p. 580.) If both parties appeared, the proceedings commenced by the plaintiff putting in his declaration, and at the same time depositing his share of the court fees (πρυτανεῖα), the non-payment of which was a fatal objection to the further progress of a cause. (Matthiae, de Jud. Ath. p. 261.) These were very trifling in amount. If the subject of litigation was rated at less than 100 drachmae, nothing was paid; if at more than 100 drachmae and less than 1000 drachmae, 3 drachmae was a sufficient deposit, and so on in proportion. If the defendant neglected or refused to make his payment, it is natural to conclude that he underwent the penalties consequent upon non-appearance; in all cases the successful party was reimbursed his prytaneia by the other. (Meier, Att. Process, p. 613.) The παρακαταβολὴ was another deposit in some cases, but paid by the plaintiff only. This was not in the nature nor of the usual amount of the court fees, but a kind of penalty, as it was forfeited by the suitor in case he failed in establishing his cause. In a suit against the treasury it was fixed at a fifth; in that of a claim to the property of a deceased person by an alleged heir or devisee, at a tenth of the value sought to be recovered. (Matth. de Jud. Ath. p. 260.) If the action was not intended to be brought before an Heliastic court, but merely submitted to the arbitration of a diaetetes [DIAETETES], a course which was competent to the plaintiff to adopt in all private actions (Hudtwalcker, de Diaetet. p. 35), the drachma paid in the place of a deposit above mentioned bore the name of παράστασις. The deposits being made, it became the duty of the magistrate, if no manifest objection appeared on the face of the declaration, to cause it to be written out on a tablet, and exposed for the inspection of the public on the wall or other place that served as the cause list of his court. (Meier, Att. Process, p. 605.)

The magistrate then appointed a day for the further proceedings of the anakrisis [ANAKRISS], which was done by drawing lots for the priority in case there was a plurality of causes instituted at the same time; and to this proceeding the phrase λαγχάνειν δίκην, which generally denotes to bring an action, is to be primarily attributed. If the plaintiff failed to appear at the anakrisis, the suit, of course, fell to the ground; if the defendant made default, judgment passed against him. (Meier, Att. Process, p. 623.) Both parties, however, received an official summons before their non-appearance was made the ground of either result. An affidavit might at this, as well as at other periods of the action, be made in behalf of a person unable to attend upon the given day, and this would, if allowed, have the effect of postponing further proceedings (ὑπωμοσία); it might, however, be combated by a counter-affidavit to the effect, that the alleged reason was unfounded or otherwise insufficient (ἀνθυπωμοσία); and a question would arise upon this point, the decision of which, when adverse to the defendant, would render him liable to the penalty of contumacy. (Dem. c. Olymp. p. 1174.25.) The plaintiff was in this case said ἐρήμην ἑλεῖν: the defendant, ἐρήμην ὀφλεῖν, δίκην being the word omitted in both phrases. If the cause were primarily brought before an umpire (διαιτητής), the anakrisis was conducted by him; in [p. 1.630]cases of appeal it was dispensed with as unnecessary. The anakrisis began with the affidavit of the plaintiff (προωμοσία), then followed the answer of the defendant (ἀντωμοσία or ἀντιγραφή [ANTIGRAPHÉ]), then the parties produced their respective witnesses, and reduced their evidence to writing, and put in originals, or authenticated copies, of all the records, deeds, and contracts that might be useful in establishing their case, as well as memoranda of offers and requisitions then made by either side (προκλήσεις). The whole of the documents were then, if the cause took a straightforward course (εὐθυδικία), enclosed on the last day of the anakrisis in a casket (ἐχῖνος), which was sealed and entrusted to the custody of the presiding magistrate, till it was produced and opened at the trial. During the interval no alteration in its contents was permitted, and accordingly evidence that had been discovered after the anakrisis was not producible at the trial. (Dem. c. Boeot. i. p. 999.18.) In some causes, the trial before the dicasts was by law appointed to come on within a given time; in such as were not provided for by such regulations, we may suppose that it would principally depend upon the leisure of the magistrate. The parties, however, might defer the day (κυρία) by mutual consent. (Dem. c. Phaen. p. 1042.12.) Upon the court being assembled, the magistrate called on the cause (Platner, Process und Klagen, 1.182), and the plaintiff opened his case. At the commencement of the speech, the proper officer ( ἐφ̓ ὕδωρ) filled the clepsydra with water. As long as the water flowed from this vessel, the orator was permitted to speak; if, however, evidence was to be read by the officer of the court, or a law recited, the water was stopped till the speaker recommenced. The quantity of water, or, in other words, the length of the speeches, was not by any means the same in all causes: in the speech against Macartatus, and elsewhere, one amphora only was deemed sufficient; eleven are mentioned in the impeachment of Aeschines for misconduct in his embassy. In some few cases, as those of κάκωσις, according to Harpocration, no limit was prescribed. The speeches were sometimes interrupted by the cry κατάβα--“go down;” in effect, “cease speaking” --from the dicasts, which placed the advocate in a serious dilemma; for if after this he still persisted in his address, he could hardly fail to offend those who bade him stop; if he obeyed the order, it might be found, after the votes had been taken, that it had emanated from a minority of the dicasts. (Aristoph. Wasps 980.) After the speeches of the advocates, which were in general two on each side, and the incidental reading of the documentary and other evidence, the dicasts proceeded to give their judgment by ballot. [PSEPHOS.]

When the principal point at issue was decided in favour of the plaintiff, there followed, in the case of a δίκη τιμητή, a further discussion as to the amount of damages, or penalty, which the defendant should pay. [TIMEMA] If the penalty was already prescribed by law, the suit was described as ἀτίμητος, not requiring assessment (Dem. c. Mid. p. 543.90; c. Aphob. i. p. 834.67). The method of voting upon this question seems to have varied, in that the dicasts used a small tablet instead of a ballot-ball, upon which those that approved of the heavier penalty drew a long line, the others a short one. (Aristoph. Wasps 167.) Upon judgment being given in a private suit, the Athenian law left its execution very much in the hands of the successful party, who was empowered to seize the movables of his antagonist as a pledge for the payment of the money, or institute an action of ejectment (ἐξούλης) against the refractory debtor. The judgment of a court of dicasts was in general decisive (δίκη αὐτοτελής); but upon certain occasions, as, for instance, when a gross case of perjury or conspiracy could be proved by the unsuccessful party to have operated to his disadvantage, the cause, upon the conviction of such conspirators or witnesses, might be commenced de novo. [APPELLATIO (Greek).] In addition to which, the party against whom judgment has passed by default had the power to revive the cause, upon proving that his nonappearance in court was inevitable (τὴν ἐρήμην ἀντιλαχεῖν, Platner, Process und Klagen, 1.396): this, however, was to be exercised within two months after the original judgment. If the parties were willing to refer the matter to an umpire (διαιτητής), it was in the power of the magistrate to transfer the proceedings as they stood to that officer; and in the same way, it the diaetetes considered the matter in hand too high for him, he might refer it to the εἰσαγωγεύς, to be brought by him before an Heliastic court. The whole of the proceedings before the diaetetes were analogous to those before the dicasts, and bore equally the name of δίκη: but it seems that the phrase ἀντιλαχεῖν τὴν μὴ οὖσαν is peculiarly applied to the revival of a cause before the umpire in which judgment had passed by default. J. S. M.]


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