Introduction
As a way of showing how court procedures changed over the course of a hundred and forty years or so, an account is offered here of the way a trial might have happened on three separate court days, each representing a set of circumstances that are somewhat different from those of the others. The first is a day sometime between ca. 460 and 410 B.C. The second represents a time between 410 and ca. 340, the third, a time between ca. 340 and 322.
The three segments of time which these dates bracket are not to be thought of as eras or as stages in the development of dikastic procedures at Athens. It happens we know of certain changes in procedure at or around these dates, and these changes are important enough to cite as markers, i.e. reference points that offer a place to stop and take a focused look before continuing on in what is finally a good long history. But the points of demarcation offered here do not show when
all the changes of the preceding years were effected. The change in voting procedure, for instance, from one pebble to two specially designed ballots seems to have been made sometime after 405 but before the middle of the fourth century (
IG II(2) 1641, lines 25-33;
IG II(2) 1646, line 8;
Aeschin. 1.79). What might be called the old style of voting, therefore, obtained throughout the first of my arbitrary (in some respects) segments, and during an undetermined part of the second.
A tripartite division such as this has an obvious affinity with learned arrangements by which certain prehistoric cultures are divided into Early, Middle, and Late. And in fact when so much is unknown, there is a natural order to this sort of segmenting. But the divisions are at the same time arbitrary in that judicial procedures existed at Athens before 460, and because the court system shows fluidity throughout the one hundred and forty years this account includes. Certain constant—we might say characterizing—features, namely large judging bodies, allotments, and secret balloting, remained essential, while Athenians modified ways by which they moved the judging bodies around, allotted courts and dikasts, and guarded the integrity of voting. But any particular change can have been occasioned by more than one sort of person or event. That is, perception of malpractice, or general constitutional upheaval or reform, or resentment at the outcome of a trial, or even just one man's notion of how the system could be improved—any of these could be a sufficient factor.
This account takes 460 (ca.) as a beginning because in 462 an Ephialtes is credited with initiating an important if not satisfactorily documented shift in responsibilities, whereby the dikastêria assumed powers that the Council of the Areopagus had had previously; and not long after that, we find evidence of secret balloting. The secret ballot is such an important discovery in constitutional and juridical determinations that in the absence of reliable information about the conduct of earlier trials, Athenians' use of a secret ballot seems appropriate as a beginning for the first of these three schematized court days. Another distinctive Athenian practice, that of paying dikasts, also began in these years and may be connected with the institution of the secret ballot.
410 is the time of another important change, namely the procedure by which dikasts were assigned to courts and to seats in those courts. If we do not know exactly how these assignments were made, it is a likely inference that before 410 an Athenian citizen became a dikast or heliast by allotment and then was assigned (perhaps again by lot) to one particular court for a year at a time or more. Around or shortly after 410, however, dikasts were clearly allotted to courts each day and to seating places in the courts. They may have been sworn into the eligible body once a year; they were in any case no longer assigned to particular courts. Chance and the god (Apollo, presumably) would make it impossible for litigants to ascertain beforehand who the dikasts were going to be on their day in court.
340 (again, roughly) is the time when Athenians organized their court buildings in accordance with the procedure Aristotle describes in
Aristot. Ath. Pol. 63-69. Before then on a day when two or more courts functioned, all dikasts allotted to serve on that day were dispersed by panels to judge in separate buildings. These buildings, however, could be as far apart from each other as the Odeion (at the southeastern foot of the Acropolis) and the Stoa Poikile (on the northern boundary of the Agora). But once Athens had a single, contained complex of structures, dikasts were in a protected area when they walked to their courts. As a consequence, litigants and others who hoped to influence judgements beforehand could not easily make contact with dikasts and be sure they would be in the right place at the right time.
The year 322 is generally agreed to be the end of the Athenian democratic court procedures, at least in approximately the overall conformation they had during the preceding century. Some features and equipment may have been the same as before, but the authority of the courts, widely recognized in the fifth and fourth centuries as paramount, appears from the time of Demetrios of Phaleron and after to be modified or diluted.
In the presentation at hand, popular courts, as distinguished from homicide courts, provide the examples. Testimonia for homicide courts give information concerning sites, furnishings, and procedure at different times but not enough for a linear account in which changes or disruptions can be illustrated by circumstantial detail.
