460 to 410 (roughly)
A citizen by a law attributed to Solon can indict anyone he perceives as doing wrong. In cases where two parties disagree about money, informal arbitration is possible but there is no known formal, state-administered apparatus of arbitration. To initiate an action as prosecutor, a citizen notifies a defendant formally and with witnesses. He does this by sending a crier along with friends who will act as witnesses, or, since he knows the notification will be in a public place, he can hope to enroll casual by-standers as witnesses. This act of formal notification, once executed, requires the defendant to appear before a magistrate. There he answers his prosecutor's charges. What magistrate to choose is the prosecutor's responsibility: he identifies a magistracy as appropriate for an initial hearing, and that same magistrate reserves him a place on the court calendar. A case that involved a foreigner or metic, for instance, would begin with a hearing before the polemarch, who would then himself decide whether or not responsibility for that sort of case fell within his competence.
Once a magistrate—let us say for the purposes of this reconstruction he is an archon—has acknowledged the case as one he is to administer, he fixes a day for prosecutor (or prosecutors) and defendant to appear and swear charges and denials or counter-charges. If at his hearing (called anakrisis, because there was questioning to determine when and where a trial should be held) the archon determines his office does not superintend the sort of trial that the charge entails, the prosecutor can withdraw and go find the right magistrate.
Suppose the archon accepts responsibility. He has a scribe write charges and denials on a wax tablet. He authorizes a public notification of the impending trial. This notice he has printed in charcoal or black paint on a whitened wooden tablet, and its form is as follows: “So-and-so, son of Q, from deme R in a sworn indictment has charged Such-and-such, son of X, from deme Y with committing the following crime(s).” One or more crimes are specified. After the crimes, a penalty, which may be a monetary fine or death or exile, can be written. It is signalled by the single word “penalty.” The defendant's sworn denial may be subjoined in some form such as follows: “I, Such-and-such, son of X, from deme Y, did not commit (whatever crime has been specified).” The tablet (or board if it needs to be large enough to hold notices of other trials scheduled for the same day) will be displayed before the statues of the Eponymous Heroes, which stand near the southwestern corner of the Agora. A railed fence around the ten statues holds the notices on display.
Some litigants giving vent to their feelings or hoping to improve their chances used a curse. This bit of magic was directed against the principal antagonist and any of his friends or relations who might be thought to be coming to his aid. One form of curse was to scratch into a sheet of lead a formulaic prayer to Hermes or Demeter asking these gods to disarm so-and-so by freezing and stupefying his mind, his tongue, his arms, his legs, etc. If an average Athenian lacked savoir-faire, he could go to the Agora and find an amanuensis who knew exactly what to do, i.e., write out the proper words, commit them to the proper material, and explain how to post the message efficaciously. One way was to roll up the lead sheet on which the curse was scratched, drive a nail through it, and drop the package down a well, or into a grave, preferably that of someone who had died before his time.
A magistracy, we can suppose, is consistently associated with a certain court, the Eleven, for instance, with Parabyston (Harpokration, s.v. Parabysto), the archon with the Odeion (Photios, s.v. Odeion). The archon's court is accordingly a long way around from the Agora, where other, contemporary courts like the Parabyston and Stoa Poikile were situated. On occasions when a trial seemed to require a larger judging body, two or three panels met in combination to form a heliaia of one thousand or fifteen hundred dikasts. A total of fifteen hundred dikasts could have met in the large square building (more or less regularly called Heliaia in modern studies) at the southwest corner of the Agora, or indeed in the Odeion or the Theater of Dionysos or the Pnyx, if an extraordinary heliaia of 6,000 heliasts were needed.
To return to the archon, he has a list of days on which he can schedule trials in the Odeion. For the case in question—let us say the month is Maimakterion and that the issue is alimony—he chooses the tenth day of Maimakterion. On that day, he, the prosecutor(s) and the defendant arrive at the Odeion early in the morning. About five hundred dikasts also arrive singly or in groups. All of them have gotten up early. Most reside in the city, which means they spend much of each day in the Agora whether judging or not. They accordingly have seen the notice posted by the Eponymous Heroes and so know well in advance what the court days will be. Men from outlying areas, however, could also participate. For a man with a farm near Sounion or up in Akharnai, Athens is a long trip, but farming in Attica allowed trips to the city. Grapes and olives require intensive work only at particular seasons, and on many days there needed only someone to feed and water the livestock.
A dikast (or heliast in the earlier terminology) had to be at least thirty years old and a citizen. These are what might be called generic qualifications for a dikast. If he was listed as a state-debtor he was not allowed to judge, for a man in that category was not fully a citizen. He had lost certain rights of citizenship. Dikasts as a group may have averaged considerably older than thirty. Their means are modest enough so that the obol or two or three that they earn for a day's judging is meaningful. They also enjoy their work. Every trial has its own drama, and it is exciting to be a participant in such dramas, many of which are literally life and death contests. It is the pay and the excitement that may have brought countrymen in from comparatively distant places like Sounion and Akharnai.
Dikasts who arrive late, i.e. after the archon has signalled that the gate is closed, will not judge that day. The gate in question (
κιγκλίς) gives entrance through a wooden fence (
δρύφακτοι) that runs around the whole court building. It is there to keep the world in general at a distance from the immediate area of the trial. Interested persons could nonetheless stand by this fence, no matter that it was outside the court proper, and still try to get the attention of approaching dikasts (
Aristoph. Wasps 552-61).
Inasmuch as other magistracies were allotted at Athens starting well before the middle of the fifth century, it would be surprising if dikasts were not also allotted. At least as early as 422 B.C. dikasts depended on an allotment for work (and pay) in the courts: Aristophanes (
Aristoph. Wasps 673-74) cites them as rabble living off the
κηθάριον. Whatever the exact form of this allotment, it seems to have entitled a citizen to serve as dikast for one year rather than for just one day. It is clear in any case that dikasts were not allotted to particular courts on particular days. If all hopeful candidates assembled at Ardettos Hill once a year and some from this number were chosen by an allotment, kêtharion could be a metaphorical way of referring to this allotment. On the other hand, citizens could have been assigned to panels by allotment the day they were to judge. There is no dependable contemporary account.
The number of dikasts is large enough to give substance to the legal fiction that a dikastic panel is the city of Athens sitting in judgement. (There can be therefore no higher tribunal to which one can appeal a verdict). The number five-hundred, however, to take one example, is not in itself absolute: it constitutes one critical mass. That is, for a certain class of offence, that of Socrates for instance, Athenians fixed the number of dikasts at five hundred rather than one thousand or four hundred or two hundred as the aggregation proper for an authentic verdict. But the absence of one or two dikasts was not crucial: a panel that did not furnish its full complement of votes could deliver a verdict that would stand. Dikasts, like citizens at a meeting of the ekklesia, were not accountable to any magistrate or any office for their judgements. They did not have to face euthynai at the end of their year. They did swear an oath, possibly on the occasion they were officially recognized as dikasts, possibly again on each court day, whereby they undertook to judge fairly.
Coming into the Odeion the dikasts sit wherever they like. The Odeion is big enough to seat easily five hundred and more, even allowing for the numerous columns that hold up its roof. Friends, cronies, people who have some interest in common, gather in clusters. Many carry cushions or reed mats for comfort. They sit together and keep up a running commentary on all developments as the trial goes on. And when they choose to approve, they make themselves heard. They likewise make themselves heard when they do not approve. On such occasions they might even order the speaker of the moment to step down from the bêma, a raised area where a speaker stood while addressing the court.
When the archon decides that the panel is full he signals that all is ready, and the opposing parties enter. There may be one prosecutor or several, so long as each has an arguable basis for complaint. Friends, relations, and witnesses may also be in attendance. A defendant likewise brings as many supporters as he can find or manage. There is no apparent official control over number and identity of supporters. He will try to include some character witnesses. Litigants who wanted their own relevant memoranda might use wax tablets and a stylus, as in Demosthenes 46.11, or papyrus, and ordinary stew pots (echinos, chytra, or lopas) to transport and safeguard them for the trial. There may have been separate bêmata, one for prosecution and one for defence. Now a herald or a priest swears the dikasts. They undertake by oath to judge without partiality, and they swear by Zeus, Demeter, and Apollo.
Someone now mans the klepsydra. This “water-thief” is a timekeeping device. It consists of a terra-cotta pot with an overflow hole near its rim and a short bronze outlet pipe at its base. The pot is filled with water, which runs out into a similar pot while litigants are speaking. Different sorts of trials and speeches are assigned differing but stipulated amounts of time, the units of which are expressed as liquid measures. Two choes, for instance, are given to the second speech in a trial where 2000-5000 drachmas are at issue. In our terms, that would be six to eight minutes. If the klepsydra is the property of a tribe, the operation of any given klepsydra surely remains in the hands of the tribe that owns it.
A secretary reads the formal charge. The prosecutor speaks first. He tries to establish himself as a person whom the defendant's wrongdoing has affected directly and personally. If he does not, five hundred Athenian dikasts might well judge him a busybody or a sycophant and discount his accusation accordingly. It does not matter that Solon long ago established the right of “anyone who wants” to initiate a prosecution. A litigant is expected to speak for himself in his own words. If a citizen in these circumstances did not have a script, he would be only prudent if he availed himself of expert advice. Courtroom speeches—those of the orators that we possess, at least—had a recognizable form. In addition, they contained formulaic turns of speech. The same ones can be found in orations almost a century apart. Consider, to take a single instance, the speaker who asks for the dikasts' forbearance. He declares he is not a trained or practiced speaker, has never in fact been in a courtroom before: the dikasts therefore must take him as he is, rough-hewn but sincere.
Form and formulae, we can imagine, are elements of presentation that the dikasts expect. Another consideration that tells against purely extemporaneous speaking in court is the klepsydra. When a speaker's time is limited this way, he must, if he wants to protect his life and property, reach middle and end of what he wants to say before his water runs out. And yet a man who had never had any instruction could hardly know what he needed to say or how long it would take him to enunciate it, nor how to ascertain degrees of irrelevance when time was measured and precious.
The defendant speaks second. In defending himself he invokes his whole life as testimony. Military service, liturgies, family friends, children, all could be presented to a dikastic panel as causes to find the defendant not culpable. Since he, like the plaintiff or prosecutor, is timed by the drip of water from a jar, he likewise wants urgently to reach the end of his plea or defense before all his water runs out. Defendant and prosecutor also work under another limitation. If either takes a line of argument that angers the dikasts, he can be made by hostile noise to step down from his bêma before using all of his time. Citizens—and the general public as well—could watch and listen to trials from outside. Speakers appeal to them regularly as
περιεστηκότες and we can visualize them standing just outside whatever area or building has been delimited as the court area for the day. They too may have influenced the proceedings with their shouts.
After the two speakers finish, the dikasts vote. No official stands up to give an objective summation of what has been said; the dikasts' vote for innocent or guilty is an immediate response to speeches they have just heard. There were apparently two modes of voting, one of which was more general in its applications. In this mode, two urns are set up, touching each other but standing in such a way that one can be described as nearer and one as further from the dikasts. The nearer of the two takes the votes to condemn, the other, further away, the votes to acquit. A dikast drops his single pebble (or seashell) into one of the two urns, and when all the dikasts have done so, officials empty one urn onto a flat stone for counting. They count the ballots and award a verdict by simple majority. A tie favors the defendant. A herald announces the result. The trial is over, and defendant either exits free, or relevant functionaries under the direction of the Eleven exact the penalty immediately.
The vote was secret: each dikast could vote without anyone else knowing for whom he had voted. References to an apparatus or fixture called
κημός may provide hints as to how secrecy was made possible. A kêmos (in some uses of the word) was a truncated cone of basket-work, open at both ends, and used as a trap for crabs and lobsters. A closely woven basketwork fixture of that shape could have kept the voting secret in the following way. The large, open end rests on the shoulders of two urns that stand side by side. The kêmos rises to a smaller opening, now at the top, which becomes in effect a single mouth for both urns. A heliast can approach the two urns, set up, it will be remembered, so that one is nearer, the other further away, put his hand with its pebble inside the mouth of the kêmos, and then drop his pebble into the urn he chooses. His hand is hidden so that no one can see which urn he has chosen. If a pebble, by rattling against the wall of an urn into which it had been dropped, could reveal a dikast's choice, a packing of straw could have deadened the noise. In any case, the method, whatever its shortcomings, was serviceable: it was in use until sometime after 405.
When a charge carried a penalty already stipulated by law, the penalty (as noted above) was exacted without delay. There were charges, however, that required a second balloting, because the same dikastic panel that had voted to convict had also to judge what a culprit must pay or suffer. In such cases, the prosecutor again spoke first, and within a stipulated time proposed a penalty and argued why exactly that penalty was appropriate. Next the defendant offered his own notion of a sufficient penalty, hoping to find one just severe enough to satisfy judges who had found him guilty less than an hour before, but at the same time milder than that proposed by the prosecutor.
Here a second mode of voting may have been used. Dikasts had wooden tablets covered with wax. A dikast, using a stylus (
ἐγκεντρίς) or his fingernail, scratched a short line if he favored the defendant's proposed penalty, a long line for that proposed by the prosecutor. A dikast voted for one or the other. He had no other choice, except perhaps to abstain. Here as in the first balloting a simple majority ruled, with ties going to the defendant. (
Aristoph. Wasps 106-8,
Aristoph. Wasps 166-67, with scholia to 106) seems to allude to such a mode of voting in 422. Since penalties were acted upon immediately, no need was felt for systematic record-keeping. What's done is done. A magistrate might include a notation in his own accounts, against the coming judicial review of his year in office, but publication of a trial's outcome was not a legal requirement .
A single panel judged as many cases in a day as daylight allowed. The klepsydra put foreseeable limits on the amount of time any given trial would take. A dikast was paid for a day's work, two obols at first, then—thanks to Kleon in the 420's—three. If it was not a grand sum, it was enough to make a difference in the way a man lived, and more than enough to sustain mere existence. Furthermore, even when in the fourth century other sorts of pay were raised, three obols remained the pay for dikasts.
To consider the magnitude of sums expended annually for dikasts, if the courts sat, let us say for the sake of example, two hundred days a year, and on each of those days two thousand dikasts judged, the total paid out was in the neighborhood of thirty-three talents.
