KLOPES
KLOPES DIKÉ or GRAPHÉ (
κλοπῆς δίκη or
γραφή). The action for theft at Athens might be either private
or public, and in the former case either before a diaetetes or a court,
probably that of the thesmothetae (
Att. Process, p. 66, with
Lipsius' note 101). The various modes of procedure are enumerated by
Demosthenes (
c. Androt. p. 601, §§ 26, 27).
The safest course for a diffident prosecutor was the private action before
an arbitrator (
δικάζου κλοπῆς πρὸς διαιτητὴν καὶ
οὐ κινδυνεύσεις): he might also proceed by way of
γραφή, and, when the delinquent
[p. 1.463]was detected in the act, by
ἀπαγωγὴ or
ἐφήγησις. To
these, however, a penalty of 1000 drachmas was attached in case he failed to
obtain a fifth of the votes. In some cases, a person who had been robbed was
permitted by the Attic law to enter the house in which he suspected his
property to be concealed, and institute a search for it (
φωρᾶν,,
Aristoph. Cl. 499; Plat.
Legg. xii. p. 954 A). We are not informed how this right of
search was enforced, but it was probably on the oath of the plaintiff; and,
as the above passages show, the searcher himself was closely watched, and
had to divest himself of all clothing in which anything could be concealed
about his person (
γυμνὸς ἢ χιτωνίσκον ἔχων,
ἄζωστος, Plat.
l.c.).
As regards the penalties of theft, the old Solonian law drew a distinction,
which prevailed also in later times, between trifling and serious offences;
based partly on the amount stolen, but partly also on a principle not
unknown to modern legislation, that crime for which there are special
facilities must be repressed by severer punishments. (Cf. Arist.
Probl. 29.14, p. 952 a, 17.) Amounts under 10 drachmas
were treated as “bagatelles” (Teuffel ap. Pauly, s. v.
τεσσαράκοντα), and the Forty (? other
magistrates as well) could decide them summarily, probably by a fine
(
ἐπιβολή): above 10 drachmas, they had
to call in diaetetae [TETTARAKONTA, HOI]. Next
came “ordinary” theft. This was limited to cases of stealing in
the day-time to an amount not exceeding 50 drachmas, and from a place not
specially protected by law. The criminal upon conviction was obliged to
restore twofold if the property were recovered; if it were not, twofold
plus a certain sum for damages, called
ἐπαίτια: the court might inflict an
additional penalty (
προστιμᾶν,
προστίμημα), and the offender be put in the stocks (
ποδοκάκκη) five days and as many nights
(
Lex ap. Dem.
c. Timocr. p. 733.105). (The
statement in the text of this “law” that, if the specific thing
stolen were not recovered, a tenfold penalty was exacted, is inconsistent
with the language of the orator himself in § 114, and has been
sufficiently disproved: see Wayte
ad loc.; J. H.
Lipsius, n. 748 on
Att. Process, p. 358.)
In the “aggravated” cases of stealing in the day-time property
of greater amount than 50 drachmas, or above 10 drachmas from the gymnasia
or public baths (
λωποδυσία) or from the
ports, or by night anything whatever (and by night the owner was permitted
to wound and even kill the depredator in his flight), the law expressly
directed an
ἀπαγωγὴ to the Eleven, and,
upon conviction, the death of the offender (Dem.
c. Timocr.
pp. 735-6, §§ 113, 114). (According to some, the
λωποδύτης might be capitally punished for the
smallest thefts, but the above is the most probable explanation: the
question turns on the punctuation of the passage
c. Timocr.
§ 114, where see Wayte's note.) If the
γραφὴ were adopted, it is probable that the punishment was fixed
by the court; but both in this case, and in that of conviction in a
δίκη, the disfranchisement (
ἀτιμία) of the criminal would be a necessary
incident of conviction.
The above three passages of Demosthenes afford better materials for
explaining the law of
κλοπὴ than the late
grammarians: but it is to be observed that the inserted document of
Timocr. § 105 is inferior in authority to the
words of Demosthenes himself in the other two. There were separate actions
τοιχωρυχίας, τυμβωρυχίας, βαλαντιοτομίας,
λωποδυσίας, κλοπῆς δημοσίων or
ἱερῶν χρημάτων: against the
κλοπὴ
δημοσίων the
εἰσαγγελία,
φάσις, and
ἀπογραφὴ were
specially directed. (
Att. Process, p. 356 ff. with Lipsius'
notes; Thalheim,
Rechtsalterth. § 7 in
Hermann-Blümner, =
Privatalt. § 62,
Hermann).
[
J.S.M] [
W.W]
