1 ་ tence of the Judges, which determin'd, whether the Criminal fhould be condemn'd, or acquitted; but by that also, which the Laws ob"lig'd 'em to pronounce afterwards. For at Athens, when the Crime "was not capital, the Judges were impower'd to value the Offence: "And it was enquired of the Criminal, to what Value he thought his "Offence amounted. Which Question being propos'd to Socrates, he reply'd, that he had merited very great Honours and Rewards, and to "have a daily Maintenance in the Prytaneum; which the Grecians ac❝counted one of the highest Honours. By which Anfwer the Judges were incens'd to fuch a degree, that they condemn'd that most inno"cent Man to Death." 66 The most ancient Way of giving Sentence was by black and white Sea-fhells, call'd Xoseva; or Pebbles, call'd rpo. Ovid had taken Notice of this Custom, Mos erat antiquis, niveis atrifque Lapillis, Black and white Stones were us'd in Ages paft, H. H. After them, aduan, which were Pellets of Brafs, came into Use; which, when laid afide, xúapos, or Beans fucceeded; they were of two forts, White and Black; the White were whole, and were made Ufe of to abfolve; the Black were bor'd thro', and were the Inftruments of Condemnation *. Hence it is, that in Ariftophanes, Judges that liv'd upon the Gifts they receiv'd from doing Juftice, are call'd Kvaporp@yes, Eaters of Beans; and λx is a Proverb not much different from a savix, or Amalthea capra, being usually apply'd to things that bring in large Gains, and are a Maintenance to their Masters". Thefe Beans the Judges took from the Altar, and two Urns, which they call'd Kador, or Kadira, being plac'd, they caft in their Beans thro' a little Tunnel call'd Kaos, holding them only with three Fingers, viz. the Fore-finger, Middle and Thumb, that it might be impoffible for 'em to caft in above one at a Time. The reft of their cuftomary Rites are much what the fame with those I have already describ'd in the Judgments of the Court of Areopagus, except that in private Caufes were four Urns plac'd in the Court, as Sigonius had obferv'd out of Demofthenes ". But this perhaps, was occafion'd by the Number of the Perfons concern'd in the Trial; for if there were more than two Competitors that laid claim to an Eftate, each of them had a distinct Urn, into which those that pafs'd Sentence on his Side, were to caft their Beans, and he that had the greatest Number obtain'd the Victory, which Sigonius feems not to have obferv'd. Metaph. lib. XV. * Pollux, Hefythins, Harpocration, Ariftoph. Schol. Ran. & Hefychins, Enftathius, Iliad. 7. pag. 884, Edit. Bafil. 14 when When all had given over voting, left any Man out of Favour fhould fufpend his Suffrage, the Crier made Proclamation in this manner, E 815 anos, ansaw If there be any that has not given his Voice, let bim now arife and give it. Then the Urns were open'd, and the Suffrages number'd in Prefence of the Magiftrate, who ftood with a Rod in his Hand, which he laid over the Beans as they were number'd, left any Perfon fhould thro' Treachery or Miftake omit any of them, or count the fame twice. If the Number of the black Beans were greatest, he pronounced the Person guilty, and as a Mark to denote his Condemnation, drew a long Line, whence aσ Tv μaxpay, in the Comedian, fignifies to condemn all; on the contrary, he drew a fhort Line in token of Abfolution, if the white Beans exceeded, or only equall'd the Number of the black; for fuch was the Clemency of the Athenian Laws, that when the Cafes feemed equally difputable on both fides, the fevere and rigorous Commands of Juftice gave Place to the milder Laws of Mercy and Compaffion; and this Rule feems to have been constantly observ'd in all the Courts of Athens. Euripides, to omit a great many others, has mention'd this Cuftom in feveral Places. Ισαι δέ σ ̓ ἐκσώζεσι μὴ θανεῖν δίκη Courage, Oreftes, if the Lots hit right, That Lots, if equal, fhall the Pris'ner free. And again to the fame Purpofe in another Tragedy, Καὶ πρὶν γ' Αρείοις ἐν πάγοις ψήφος ἴσας Since you with equal Suffrages I freed, H. H. When Juftice ample Vengeance had decreed, At Areopagus on your dubious Fate, And there the dooming Sentence must have pass'd • Ariftophan. ejufque Schol. Ran, & Vefp.. ? Electra v. 1265. H. H. The The Plaintiff was call'd Ainav; the whole Suit Aiwis; and the Defendant Daywv. The Indictment before Conviction was nam'd Airía; after Conviction "Efx; and after Condemnation Adine. All the time the Cause was in fufpenfe and undetermin'd, it was expos'd to = publick View, being engrav'd in a Tablet, together with the Name of the Perfon accus'd, and hung up at the Statue of the Heroes, firnam'd Exo, than which there was not a more publick Place in the whole City; this they call'd Exx, and it seems to have been done with a Defign that all Perfons who could give any Information to the Court, having fufficient Notice of the Trial, fhould come and prefent themselves. If the convicted Perfon was guilty of a capital Crime, he was deliver'd into the Hands of the "Evdena, to receive the Punishment due to his Offence: But if a pecuniary Mulet was laid upon him, the Tapia rou so took Care to see it paid; but in Cafe his Estate was not able to make Payment, they confin'd him to perpetual Imprisonment. If, on the contrary, the Plaintiff had accus'd his Adverfary unjustly, and produc'd falfe Evidences against him, he was in fome Places oblig'd to undergo the Punishment due by Law to the Crime, of which he had falfly accus'd an innocent Perfon; but at Athens had only a Fine laid upon him. And both the Villain that had forfworn himself, and he that fuborn'd him, were feverely prosecuted; the former by an Action of Ψευδομαρτυρία, the latter of Κακοτεχνία. Of thefe, and the Punifhment due to fuch Offenders, I shall speak farther in another Place. When the Tryals were over, the Judges went to Lycus's Temple, where they return'd their Pads, Staffs or Sceptres, which were Enfigns of their Office, and receiv'd from certain Officers call'd Kwλaxps, a piece of Money for their Service, which at the first was only one Obolus, afterwards it was encreas'd to two, then to three, and at length to a Drachm, which was fix Oboli, as we have before obferv'd from the Scholiaft upon Ariftophanes. And tho' thefe Rewards may seem trifling and inconfiderable Expences, yet the troublesome temper of the Athenians, and their nice Exaction of every little Duty, or Privilege, occafion'd fo great a Number of Law-fuits, that the frequent Payment of these small Sums by Degrees fo exhausted the Exchequer, that they became a Burden to the Commonwealth, and are particularly reflected upon by Ariftophanes ", who takes Occafion every where to ridicule this litigious Humour, which was then grown to fuch a height, that every Corner of the Street was pefter'd with Swarms of turbulent Rascals, that made it their constant Bufinefs to pick up Stories, and catch at every Occafion to accufe Perfons of Credit and Reputation; these they call'd Europarral, which Word fometimes fignifies falfe Witneffes, but is more properly taken for what we call common Barretors, being deriv'd do toũ σuxa Quíve, from indicting Perfons, that exported Figs; for amongst the Primitive Athenians, when the Ufe of that Fruit was firft found out, or in the time of a Dearth, when all forts of Provifion were exceeding fcarce, it was enacted, that 1 Demofthen. Androtian. Cornel. Nep. Miltiade, Ran. pag. 280. Edit. Æmil. * Demofthen. ejufque Schol. in Median. Ran. Vefp. Item Suidas, Pollux, Hefychius. Parti, & Scholiaft. ibid. no Figs fhould be exported out of Attica; and this Law, not being actually repeal'd, when a plentiful Harvest had rendered it useless, by taking away its Reason, gave Occafion to ill-natur'd and malicious Men, to accufe all Perfons they caught tranfgreffing the Letter of it; and from them all bufy Informers have ever fince been branded with the Name of Sycophants. Others will have the ftealing of Figs to have been prohi bited by a particular Law, and that thence Informations grew fo numerous, that all vexatious Informers were afterwards term'd Sycophants. CHA P. XXII Of the Τεσσαράκοντα, and Διαιτηταί. I Terrapaxovra, were forty Men, that went their Circuits round the feveral Boroughs, and had Cognizance of all Controverfies about Money, when the Sum exceeded not ten Drachms; also, as Demofthenes reports, had Actions of Affault and Battery brought to their hearing. Pollux tells us, that at their first Institution, they were no more than thirty in Number; but Hefychius reports, the Magiftrates or Judges call'd of Tpánovra, where thofe that amerced the People for abfenting themselves from the publick Affemblies. Antal, or Arbitrators, were of two Sorts; 1. Kanpuroi, were forty four Men in each Tribe, above the Age of fixty, as Pollux, or fifty, as Suidas reports, drawn by Lots, to determine Controverfies in their own Tribe about Money, when the Sum was above ten Drachms. Their Sentence was not final, fo that if either of the contefting Parties thought himself injur'd by it, he might appeal to the fuperior Court of Justice. At their firft Inftitation, all Caufes whatfoever that exceeded ten Drachms were heard by them, before they could be receiv'd into the other Courts". They pafs'd Sentence without obliging themfelves by any Oath, but in other things acted in the fame manner with the reft of the Judges; they receiv'd a Drachm of the Plaintiff, which was call'd sacks, or Asaris, and another of the Defendant when they adminiftred the Oath to him, which was term'd voorin. And in Cafe the Parties did not appear at the appointed Time and Place, they ftaid expecting till the Evening, and then determin'd the Caufe in Favour of the Party there present. Their Office continu'd a whole Year, at the end of which they gave up their.Accounts, and if they were prov'd to have refus'd to give Judgment, of to have been corrupted, they were punish'd with (i) Infamy. Under them were certain Officers call'd Eruyayı, whofe Bufinefs it was, sirάyen ras dixes, to receive the Complaints that fell under the Cognizance of the Aararai, and enter them into their Court". "Suidas, Ariftoph. S.hol. Pluto, Equit. &c. Demofthen, Orat. in Aphobum. Median. Petit. Mifc. lib. VIII. z Pollux, Ulpian, Orat. in Pantanet. 2 Demosthen, & Ulpian. 2. Ausha 2. Διαλλακτήριοι οι κατ ̓ ἐπιτροπὴν Διαιτηταί, or Compromifarii, were fuch as two Parties chofe to determine any Controversy betwixt 'em and thefe the Law permitted any Perfon to request, but oblig'd him to ftand to whatever they determin'd without any farther Appeal; and therefore, as a greater Obligation to Juftice, they took an Oath, that they would give Sentence without Partiality ©. The Determination of the Διαιτηταί, was calld Δίαιτα, and ἐπιτροπῆς and to refer any thing to them, δίαιταν ἐπιτρέψαι 4. CHA P. XXIII. Of the Publick Judgments, Actions, &c. HE Athenian Judgments were of two Sorts, perinal and ide Trixa, Publick and Private, the former were about fuch Crimes as tended to the Prejudice of the State, and these Actions were call'd Karnyoeia; the latter comprehended all Controverfies that happen'd between private Perfons, and were call'd Aixas. Nor did they only differ as to their Matter, but in their Process and Management, and particularly in this, that in private Actions no Man could profecute the Offender, befide the Party injur'd, or fome of his near, Relations; whereas in the Publick, the Laws encourag'd all the Citizens to revenge the publick Wrong, by bringing the Criminal to condign Punishment f. The publick Judgments were these, 1. Fan, was an Action laid upon fuch as had been guilty of any the following Crimes & Dó, Murder. Τραῦμα ἐκ προνοίας, a Wound given out of Malice. Daganov, Poifon. of Bobos, a Confpiracy against any Perfon's Life; or the Crime of the City-Treasurers, that enter'd into the publick Debt-book, Perfons not indebted to the City h. Wherein it differs from drypan, whereby the Treasurers charged Men with Debts, which were already discharg'd Isgovia, Sacrilege. Ariba, Impiety. Εταίρησις Fornication. Maxi, Whoredom; this was punish'd with a Mula". Αγάμιον, Colibacy. Asgarda, Refufing to fervé in the Wars. They who were convicted of this Crime, were punifh'd with (aria) Infamy. |