DIKE´
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 (
ὁ
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.]
[
W.W]
