Front Page Titles (by Subject) chapter 6: Law Among the Greeks - The Story of the Law
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chapter 6: Law Among the Greeks - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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Law Among the Greeks
When law among the Greeks is reached we are at a period where jurisprudence is first begun to be studied. In some respects Grecian law (if it can be said in any true sense that law governed among them) from about 500 B. C. begins to take on in outward appearance a modern dress. To the talented portion of this race, with its intense brilliancy of intellect, so much is owed that it is possible to feel indulgence even for their mistakes in regard to matters in which they should not have failed. The tone of the great Roman advocate, the younger Pliny, toward the Greeks is admirable. He is writing to his friend Maximus, who is about to go to Greece as governor under the Emperor Trajan at the beginning of the second century of the Christian era. Pliny exhorts him:
Remember that you are sent to that real and genuine Greece, where politeness and learning took their rise. You are sent to regulate the condition of her cities, to a society of men who breathe the spirit of true manhood and liberty, who have maintained their natural rights by courage, virtue, civil and religious faith. Revere their ancient glory and their very antiquity which, venerable in men, is sacred in states. Give to every one his full privileges and dignity. Even indulge his vanity. Remember that they gave us laws. Remember you are going to Athens and Sparta, and to deprive such a people of the declining shadow of liberty would be cruel, inhuman and barbarous.
But just as impressive is the colloquy upon Athens at the opening of the fifth book in Cicero’s De Finibus, a none too lively work. It is almost a duty to quote the words of that greatest of all the men who have ever given themselves to the practice of law. He is speaking at a time when Athens had declined from her great estate to become a part of a Roman province, but was still the school and university of the civilized world. Cicero and his brother Quintus, his cousin Lucius Cicero, his lifelong friend Pomponius, better known as Atticus, and Marcus Piso, of a great Roman family, are studying at Athens. They had walked out of the city one afternoon from the Dipylon Gate to the Academy, to that
These young college students, as we should say, are talking of their surroundings. One points to the chair whence once had come the golden voice of Plato; another says that he has just been looking at the village of Colonus near Athens and thinking of the noble choral ode of Sophocles and the lovely lines where the blind Oedipus, led by his daughter, comes to that hamlet, shadowed under the gray-green foliage of its olive trees. The youngest of them had visited the Bay of Phalerum and had walked on the shore, where Demosthenes had declaimed amidst the roll of the waves, and trained his voice to stem the clamor and uproar of the Athenian Assembly. Coming back he had turned out of his way to stand at the tomb of Pericles. Another had been in the gardens of Epicurus. Cicero himself speaks of the breadth of vision that comes from travel, and he points to the Hall of Carneades and muses on how it seems to be grieving for that mighty intellect and the sound of the voice now still. They talk of how endless are the scenes in Athens, where one can hardly go to a place where he does not feel that he is treading on historic ground. Piso adds that, whether it arises from a natural instinct or from an illusion, we are more touched when we see the places associated with great men or noble deeds than when we are told of them or read about them. To-day our students in the American School at Athens must often speak in much the same sense. This is all the more reason why one should feel indulgence for those to whom civilization owes so much, and should never seem to minimize the glory of this “mother of arts and eloquence.”
The achievements of the Greeks in the fine arts of sculpture, painting, and architecture and in the beauty and richness of their literature still are in many ways unrivaled. Their attainments in science, considering that they were without the telescope, the microscope, and other instruments of precision, were remarkable. They ascertained that the earth was round, that it revolved upon its axis, that it moved around the sun, and that the axis of the earth was inclined to the plane in which it revolved around the sun. Both Aristotle and Plato, however, denied this fact and taught that the sun revolved around the earth. Eratosthenes, after their time, by a brilliant geometrical demonstration approached quite nearly to the true circumference and diameter of the earth. The fact that the moon revolved around the earth was known. The diameter of the moon, the fact that it shone by reflecting the light of the sun, and its distance from the earth were fairly well determined. Anaxagoras taught that the sun was a molten mass, but the ignorant were then as impervious to ideas as they are now, and he was saved from an Athenian indictment for impiety only by the exertions of the great Pericles. Aristarchus, a little later than Eratosthenes, approximated the size of the sun and its distance from the earth. The atomic theory of matter was suggested by Democritus, and the fact of gravitation was well known. Archimedes at Syracuse multiplied the uses of the screw and the lever, and showed what a practical mathematician could do in the siege of Syracuse by the Romans. The scientific writings of Aristotle were, for that age, a marvelous collection of knowledge, some of it much mistaken, but through Aristotle the Middle Ages obtained what it had for a scientific basis of thought. The world still teaches rules of grammar as the Greeks first classified and arranged the elements of language.
Once it was a received opinion that Greek development was comparatively short before it suddenly expanded into the splendid Periclean age at Athens. It was supposed that the race rapidly passed from a half-barbarous condition to a high civilization. But later investigation has proven that the Grecian, like other civilizations, represents a long sequence where the barbarism of a conquering race is grafted upon a much older and higher culture. Before Hammurabi ruled at Babylon, and perhaps a thousand years before the Hebrew tribes possessed Palestine, a portion of the Mediterranean race, closely allied to the Phenicians and Philistines of later times, had in the island of Crete attained much civilization and was carrying on a large trade with Egypt and Asia. This civilization, called Minoan, after hundreds of years, penetrated to, and became diffused on, the mainland of Greece and northward as far as Thessaly. Successive invasions of semi-civilized Achaeans and after a few centuries Ionians and Aeolians, and still later Dorians, wrecked this older civilization in the usual manner of Aryan barbarian invasions. But the preceding civilization enabled the barbarians to absorb some of that high culture and a portion of the Greeks was on the highroad toward the later accomplishment.
So far as the history of law is concerned, we need not notice the Dorians, whose leading state was Lacedaemon with its capital Sparta. They, ruling a conquered subject race reduced to serfdom, were organized in military form and maintained, in a hostile population, the barrack-room discipline of soldiers encamped amid a subject population. Their legendary lawgiver, Lycurgus, was a myth. Their customary laws and institutions are of no importance, except that they explain some of Plato’s curious reactionary tendencies in his legal writing. The Dorians who took possession of Crete had laws similar to Sparta’s. Those laws have been found engraven upon a wall at Gortyn. At Sparta was first noticed the tendency of property to accumulate in the possession of women and the looseness of female morals that seems to go with this development. The Greeks were indefatigable colonizers in almost every direction, and their various city-states in southern Italy and in Sicily, in northern Africa and as far away as Spain and southern France at Massilia, now Marseilles, had their collections of Greek laws. These laws may all be disregarded.
The story must be confined substantially to the single collection of four Ionic tribes living in villages, inhabiting the hilltops around Athens and the small surrounding territory of Attica. These people arrived from the north with the ordinary barbarian Aryan institutions and customary laws, and became a ruling class among the native inhabitants. While these invading Ionians were coalescing with the indigenous people, the Ionian and Aeolic cities on the Aegean Islands and the mainland of Asia were carrying on a great commerce as subjects of Asiatic rulers in lands that at last had come under the sway of the Great Kings, successors of the Persian Cyrus. As soon as authentic history begins, the confederacy of patriarchal kindreds forming the usual monogamous agnatic clans of Ionians in a natural course of events, absorbing an older and superior civilization at Athens, had a written language, borrowing the Phenician alphabet, and had gotten rid of a large part of the primitive Aryan conditions. The one savage trait which the Greeks never lost, and which makes Grecian history such a nightmare of wasted opportunity, is the intense zeal of the tribesman for his own tribe and his natural ingrained hatred for every other tribe. Plato in his ideal state pictured in the Laws could conceive of no other situation than a city-state under arms awaiting a treacherous attack from some neighboring city.
Passing over the legends of Theseus and succeeding kings at Athens, we come to an oligarchy of well-born (eupatrid) families who control the state. The Athenian political development took the course first of an overthrow of the oligarchs, followed by a popular government, which, as usual, reacted to a rule of tyrants, who were Pisistratus and his sons; then came an expulsion of the tyrants, after they had made Athens a leading state of Greece. The Persian wars soon afterward, with the glory of Marathon and Salamis, placed Athens at the head of Greece. The great commerce of the Ionian cities soon passed to Athens. This city, then, for over a hundred years, in spite of its misfortunes, was the chief depot of eastern commerce.
The legal development at Athens took a way hitherto untried. The Aryan Ionians, with laws unwritten and with those laws in the custody of the priests, who were represented by the patriarchal heads of the families of the well-born nobles, decided that a change in their laws was necessary. As we have seen, there were as yet but two methods of creating new law to suit changed conditions. One was by the slow way of developing new customs, the other by the announcement of laws given by some god. The Greeks had no idea of promulgating laws by means of a god, but they had accounted for their laws by mythical lawgivers who had given the laws, and they also had some general idea that the laws were of divine origin, since they were in the custody of the priestly class.
The customary laws handed down by spoken speech were in the hands of the eupatrid oligarchs, as was also the administration of the laws. This situation met the demand of the lower classes, gaining in strength, that these laws should be put into written forms so that they should be no longer the sole possession of the well-born. It was a widespread notion among the Greeks that the laws, if put into writing, became the aid and possession of the many.
This same idea appeared later among the Romans. The demand was met by the Code of Draco. It also was demanded that the nobles should no longer monopolize the administration of the laws and sit in judgment in the courts. To insure this result, the obvious thing was to use what they had. This is the instinctive course of all men to patch and use the ancestral robe of custom.
The Athenians had kept the Aryan conception of the general power of the tribal assembly. In fact, the popular belief that all political power came from this assembly resulted in a general political theory that the public assembly was the source of all legislative, executive, and judicial functions. Hence it was an easy step, when it seemed necessary to revise the laws, to constitute, in accordance with the method of tradition, by the vote of the assembly, an actual lawgiver in the person of Solon. But here it should be noted that this conception of undivided political power was destined for almost two thousand years to rule enlightened mankind. That length of time was required for men to recover from this mingling in the one popular assembly, or in the one ruling force such as a king, of powers radically distinct.
In an age incapable of thoroughly sound legal analysis—and this is true of the Greeks because the race had not yet the experience necessary to find a basis for such reasoning—men had not analyzed far enough to deduce that the legislative function consists in announcing a rule of law to govern future happenings, that the judicial function, on the other hand, consists in applying to a happening that becomes the subject of litigation a rule of law existing when the happening took place. If a new rule is announced by legislative power to govern a completed transaction, the power exerted is not a legislative power, but an arbitrary edict abrogating the applicable rule of law as to a past transaction and withdrawing from the party whose conduct is in question the equal application of the laws. For his particular case the party has been made an outlaw. As we have seen, the idea and concept of justice demand as the very essence of justice, preëxisting rules of law applicable to all alike and impartially applied. If this is not the situation, justice does not exist, nor do laws exist.
“Law is something more than mere will exerted as an act of power.” Such is the weighty language of the Supreme Court of the United States.1 Hence, when the legal system is so instituted that the legislative body can decide a lawsuit by an edict for a particular case, it is neither legislating nor adjudicating, but is simply exerting arbitrary and uncontrolled power, than which nothing is more contrary to the fundamental basis of justice. But this was not understood at Athens, nor was it understood at Rome during the days of the Roman Republic, nor is it understood to-day by those who talk of free judicial decision, meaning a decision where the judge freely disregards the law, because he thinks that for the particular case he can make a better law.
It is true that Aristotle pointed out from Athenian history the evil of government by edicts, but he did not go far enough to find that his fundamental ideas of the law were, as we shall show, unsound. He was merely dreaming on the subject of a state ruled by law. Cicero, with truer insight, in his Topica stated: “Justice requires that in the same cases there shall be the same laws.” Or, as it has been stated in modern law, “The equal protection of the laws means the protection of equal laws.”2 Rome never truly developed this idea of justice, and of equal laws, until the Republic was no more. In order to insure equal laws it was found, long ages after the Greeks and Romans, that the judicial power must be separately and independently exercised. If a man cannot to-day see that it is in reason impossible to govern a completed transaction by a rule of law invented after the transaction happened, he is not a reasonable human being. Even in trivial matters like a game of cards, the none too intellectual devotees of that pursuit recognize at once the nonsense of inventing a rule to govern a play after the play has been made. To card players it is an axiom that the rule existing when the play was made must govern the play, and that has been the actual demand of justice as to important matters in all the ages since the idea of justice was first comprehended by men. The groping of the ages has been toward an administration of equal laws. It will now be explained why it was that under the Athenian system there never could result a government of laws.
Why it is that different races should receive an inclination in certain directions, we shall probably never have knowledge enough to ascertain. The Hebrew with his genius for speculating upon the righteousness of life inspired by God, the Greek with his genius for speculating on the nature of all the sciences and his passion for a democratic form of government, the Roman with his genius for institutions of government and laws, are instances of certain ingrained racial characteristics for which we find no explanation.
First of races to develop what we call the democratic form was the Athenian. Under Solon’s legislation about 592 B. C., as supplemented by later legislation of 507 B. C., the popular assembly of all the citizens of Athens became the final depositary of all executive, legislative, and judicial power. This government was on its face democratic, but as a matter of fact it was merely a democracy of a ruling class. Athens was ruled by a close body of citizens limited to men of Athenian birth and descent. This body never exceeded thirty thousand and generally did not exceed twenty thousand men. It is likely that an assembly was rarely convened with six thousand. The homogeneity of the citizen body could not be disturbed by the admission of new kinds of citizens. The far greater number of free residents at Athens could never be granted citizenship by any process analogous to our naturalization procedure; they must always remain resident aliens. Yet this class owned by far the larger part of the wealth of Athens. Below the citizens and the free aliens was the still more numerous class of slaves. The resident aliens and the slaves carried on almost all the handicrafts, the manufacturing, the buying and selling, the occupations of a laboring and a middle class. It became a mark of inferiority for an Athenian citizen to engage in most of such occupations, except that in the larger transactions of foreign trade moneyed citizens took a part, as soon as the commercial supremacy of Athens was secured. Plato in his Laws interdicts all commercial occupations to free citizens, and in this he is reflecting more or less current ideas among the Athenians.
The farming people of Attica, who were all citizens, had in process of time so exceeded their means of living that on their primitive inalienable holdings they were practically serfs bound for debts to the wealthy among the citizens, who, by a natural process, were the oligarchs. Even if “money has never cared who owns it,” wealth has always made its holders influential. Solon’s primary step was to cancel by an act of confiscation the indebtedness of the landholding citizens and to render the farming class, temporarily at least, independent of the moneyed class. At the same time land was rendered alienable and each son was emancipated from the father’s patriarchal rule as soon as the son reached the age of eighteen and was enrolled in the military force of the state. Thus was abolished the age-old inalienable Aryan family estate and the patriarchal family, but the fact remained that the father could not disinherit his children. This idea in the law that the father has family property and ought not to disinherit his children is a living power in law to-day.
Another feature of Athenian polity was the confirmation in the assembly of citizens of all the legislative, executive, and judicial power. Solon’s division of the citizens into four classes, according to income, had little, if any, effect upon government. The legislative body was uncontrolled. The courts were in fact popular courts made up of citizens, and the numbers of the judges in them were so large that they were considered as branches of the assembly. Jurors were in fact judges, for these so-called dicasts or jurors made the judgment. Numbers of two hundred, five hundred, a thousand, and for certain matters a much larger number were provided. The jury list to supply the courts to the number of six thousand was made up from the body of the citizens and was constituted anew every year. These jurors came to be paid officers. The dogma of democracy was that each citizen was competent to perform any function of government, and the public officers were selected by lot, except the generals to command the army or the fleet. They were elected by the assembly. By a natural process almost every citizen who needed the money was put upon the public pay-roll. The Greeks were brushed by the wings of representative government, for representative delegates from Greek city-states formed the Amphictyonic League as well as the Delian League of Athens, but the conception of a representative government never produced any result, just as their knowledge of the expansive power of steam never produced a steam motor.
It is a strange thing that Plato could see the folly of selecting for public officials wholly incompetent men, and yet saw nothing absurd in the election of generals or admirals. He has a dialogue where he represents Pericles, the son of the great Pericles, as coming up to Socrates and complaining that the Athenians had just selected as general a man without military or naval training, simply a very successful man of business. Socrates, in the dialogue, begins his process of questioning and shows by Pericles’ own admissions that many of the qualities of a successful business man would be needed in a general; and thereupon the assumption is that the Athenians have made a wise choice. Young Pericles departs apparently much befogged and is seemingly incapable of pointing out the crass fallacy in the reasoning. Such reasoning probably was the cause of the fact that Athenian armies usually but not always fled from the field of battle. In our democracy the process is reversed. A successful general is selected to some high office that he is incapable of filling, and in it he makes himself a spectacle of utter failure as a civil magistrate.
But there was some saving sense among conservative men regarding this power of the popular assembly to change the laws at will. There was a feeling that the laws ought not to be lightly changed. To guard against this evil the old Council of the Areopagus was left with a function of guarding the laws. Later, wardens or guardians of the law were provided. A proceeding was provided for putting a law upon trial with appointed accusers and defenders who argued the question before the assembly. Still later a regular action before the popular court was authorized to be brought by any one. The proposer of the law was treated as responsible for its failure or success, and the lawsuit was against him. The whole question of the legality of the manner in which a law was proposed or passed and its goodness as compared with some prior existing law or some other possible law, was tried before the assembly in a prosecution or indictment of a private citizen.
To us, such expedients seem childish, for the question of the constitutionality of the law, as we say, was confused with its expediency; but, if we assume the state of political development at Athens to be what it was, and the fact that the whole body of the people were legislating and that this whole body could not condemn itself, the expedient seems the only thing possible, if the sins of the people were to be shifted. When a bad law is passed to-day, we still cling to this primal belief that the stupid public is not at fault, that it has been misled or deceived. Aristophanes, in one of his comedies, brought the people on the stage as Demos, where it was led around by the nose, cajoled and flattered and deceived and made a fool of by artful demagogues. No doubt the play was highly applauded by the Athenians, who could not comprehend that the fable was narrated of themselves. The fact taught by the law is that any political society has the laws that it deserves.
There was provided also a council, originally the old Council of the Areopagus, and it was succeeded by Solon’s Council of Five Hundred, who were chosen by lot. This body carried on the administrative business by a division into committees. To this Council was given the duty of preparing the legislation to be proposed before the Assembly, and originally a proper bill coming to the Assembly from the Council was necessary to legislation, but this safeguard was swept away. Certain executive officers, called archons, presided over the Assembly and the courts. One of them, the archon king, was so called because he succeeded to the priestly functions of the ancient kings in respect of religious observances and the domestic relations of husband and wife, guardian and ward, and the estates and wills of deceased persons. In later times, in medieval England, the ecclesiastical courts performed much the same functions as did the archon king’s court at Athens.
Another important feature of the Athenian legal system was Solon’s legislation giving to any citizen the right to take up the cause of any fellow citizen and to help him to obtain justice. This right was one both of accusing and of defending, but it was never expanded into the hiring of a lawyer, for there was no such class in Greece. Every kind of magistrate was compelled to render an account of his service to the assembly and was subject to a suit of some kind brought by any informer or accuser impeaching his action. Even generals of armies or fleets were subject to this kind of attack.
But the most curious production in a legal way of this jealous insistence upon the rights of democracy was the proceeding before the Assembly called ostracism. By a vote of the Assembly any citizen could be banished without a hearing, without a trial. It amounted to a legislative judgment of condemnation of a person accused. It is precisely the vicious and brutal bill of attainder used so long by the English Parliament with melancholy results. In England a legislative proceeding was used to put a political opponent to death when he could not be convicted by the regular processes of a court. Legislators can always be relied upon to have less conscience than judges. The bill of attainder is forbidden by our national constitution and our state constitutions. The Assembly also had a proceeding whereby a charge was brought in the Assembly and a prosecution directed to be made in a popular court, in the general manner of our impeachment, but the proceeding was not confined to public officers. This sort of proceeding was copied by the English and it remains with us as a prosecution of a public officer for high crimes and misdemeanors before a legislative body. Under our institution of a Congress of two chambers, the lower house prefers the accusation against a public officer and its truth is tried by the upper chamber. This is the English impeachment by the Commons, tried by the House of Lords. Each of our states has the same form of prosecution. In Athens any citizen brought an impeachment, and it was authorized in the popular Assembly and the matter tried in one of the town-meeting courts.
Under the English system prevalent in this country, the judge or judges of the court exercise a control over the verdicts of juries in three ways. Preliminarily to the trial the court settles the issues, that is to say, it determines the question that is to be submitted to the jury; next, upon the trial it instructs the jury as to what the law is, bearing upon their deliberations; finally, the court, if it is not satisfied with the verdict of the jury, will set the verdict aside. But at Athens, while there may have been some supervision over the questions to be submitted to the jury through the presiding archon (and as to this matter there is grave doubt), the whole case, matter of law and matter of fact, was submitted to the uncontrolled jury. Even if there had been control, the archon chosen by lot had no special knowledge of the law and was an ordinary uninstructed citizen holding his office but a short term. His supervision would have been of no advantage in any way in settling what was to be tried or in supervising the trial. He was no more than the foreman of the jury. At the trial he had no control over the jury; it made its finding as it pleased and there was no way of revising a palpably erroneous finding. The demos never would have submitted to the spectacle of an official overruling the action of the popular assembly or of any popular court. If the jury decided any suit in accordance with the actual law, it would be an accident. Hence under the Athenian system, according to what is stated above as to justice, there was practically no provision for compelling a court to decide in accordance with law, and as a necessary result there was little, if any, justice; there was no government of laws, no security that a litigant would get his rights as the law defined them. Every case was likely to be decided according to a special rule made for the occasion. There were courts for the districts into which Attica was divided, but the appeals from those courts went to the popular courts at Athens, where the same evil met appeals.
Aristotle deceived himself by the assumption that in any popular gathering like the Athenian legislative assembly or in a popular court like an Athenian dicasterium, the result arrived at would always reflect a higher wisdom than the average wisdom of the members of the assembly or jury. This is a wholly gratuitous assumption. It might be a result of deliberations and discussions of the members among themselves, but in the case of the courts any communication among jurors was forbidden or at least was impossible. The jury simply voted without any deliberation among its members. There was no opportunity for the jurors to discuss the matter and to let the better intelligence among them have its influence.
Aristotle in his writings could not throw any clear light upon the anomalous situation at Athens. He classified justice as being of two kinds: (1) general justice, which is a complex of all the rules of law formulated by the state to be legally obligatory upon all members of the community; and (2) the specific virtue of justice, which consists of all the rules of fairness which should govern relations between all members of the community. No one has ever solved the principle of this classification. Aristotle gives no logical definition of general justice except that it included what we call public law and rights of property and possession. Specific justice he divided into distributive justice, which defines all the rights and duties which are apportioned to one person against or in favor of others, and into what he called corrective justice, which covers all the functions of justice for the enforcement of rights or the redress of wrongs. Perhaps in a hazy way this latter distinction between distributive and corrective justice is the distinction now made between substantive law, which defines actual rights and wrongs, and adjective law, which defines the methods and procedure by which rights are enforced and wrongs redressed by courts.
Another defect in the law was its rigid formalistic character under which the party suing must recover what he sued for, neither more nor less. Proposals were made to change the method of trial so that a verdict of less than the amount sued for could be recovered, but Aristotle argues strenuously against such a proposition, and in a court composed of so many members without any chance for discussion among them, it is difficult to conceive how such a result could be attained.
But even if there had been under the Athenian system any chance for a rule of law or for an adequate tribunal to apply the law, that chance was wholly destroyed by a principle for making up a new law or of avoiding the rule of law, by abrogating the applicable law altogether. Aristotle adds another kind of justice to his absurd classification and division, which he calls fairness or reasonableness. The Greek word is epieikeia, which came later to mean, appropriately enough, “idle chatter.” It is in short the principle that a rule of law must be of general application but that if in a particular concrete case the law may seem to produce a result deemed unfair or unjust or inequitable by the jurors or judges, the law will not be applied. This principle covered by verbiage has been defined to be a correction of the law in some particular of justice, wherein the law by reason of its universality is deficient. In other words, it is a power in a court to suspend the law because it is conceived that in a particular case the rule will produce an unjust result. What could be simpler? Although justice requires a general rule applied to all alike, if there is to be either liberty or equality under the law, yet justice also requires the exact converse of this rule—a suspension or repeal of the law in a particular instance—in order to provide that justice according to law shall not be injustice. It is true that in a later body of law there was a common law and an equitable system, but the latter system had its own settled. rules, and those rules were applied to all alike. The equitable rules actually governed and hence they were the law, whatever the common law might say.
Aristotle seems to have provided for the sphere of public law, but he does not in fact suggest, and a Greek in a city-state was incapable of conceiving, that the individual citizen could have any rights that would be protected from the state. While the Athenian judges were required to take an oath that they would not allow the repudiation of debts or a redivision of the land, confiscations and expropriations of the property of the rich were common. No title that came from the state could be disputed, and the state was left to compensate the robbed citizen. This is our law to-day as to certain taxes. Every one must pay the income tax assessed, even though it be a public stealing and robbery, and must after paying sue to recover the payment. All democracies are alike in their methods.
The Greeks had an arbitrary system of imposing a public service, called a liturgy, upon a particular citizen. Such public services were fitting out ships, equipping embassies, providing dramatic choruses, or contributing to the expenses of religious celebrations. For this condition a remedy was provided whereby a citizen upon whom such a charge was imposed could bring an action against another citizen claiming that the other was better able to respond to the tax. This is much as if one citizen could sue another on the ground that a particular tax imposed was unfair as between them. The imposition of these public burdens was really a form of taxation, and thus early began the system of making a tax unequal by the attempt to make the richer men pay proportionately a much higher tax. It is characteristic of all democracies to attempt this taxation. The best instance we know of is the increase in percentage of taxation with reference to a man’s income. Nothing could be balder than this, but, at least, all men falling under the classification must respond; while at Athens a particular individual was selected to pay an onerous tax. It is idle to speak of law or equality or uniformity under such a system.
It must be evident why it was that Athens had no particular profession or order of men who were learned in the law. Every citizen was competent to know and judge the law. Hence there was no such practice as that of a citizen appearing by attorney or advocate. The citizen must manage his own case and make his own plea. A legal profession was banned, as Plato makes plain in his Laws. All the litigant could do was to hire some orator to write out a speech for him to deliver. The Attic orators wrote many such speeches and it is to those speeches that we are indebted for most of our knowledge of the Athenian law. Judges who knew little of the law, and probably cared less about it, were not a tribunal where a trained lawyer would be of any use. If a man had a contract, the contract when broken was likely to be abrogated if a situation developed where a town-meeting jury would consider an enforcement unjust. If a man had left a will there was no certainty that it would stand, and so it was of every other legal relation. It is no wonder that Aristotle, in his muddy way, sighed for a constitutional system, where laws and not personal caprice would rule; and yet he had a conception of law that prevented any rule of law from prevailing.
The Greeks devised a way of getting certain cases to arbitration. In fact it was a common expedient to agree upon an arbitrator. The arbitrator’s finding, however, could come before a court for enforcement, and when it did it would seem that the record made before the arbitrator was all that could be considered by the court. The attempt to avoid the courts by means of an arbitration was to the Greeks a method of escaping not from the law, but from the trammels of legal procedure. But, of course, it would result then, as often it results now, in the rule of law not being applied to the controversy.
The acute minds of these Athenian Greeks developed a very considerable body of law. Personal security was protected by the usual private remedies for assault, or for slander in public places. There was a well-developed division of law as to artificial persons, such as religious societies approaching our churches, clubs, burial societies, trading societies, privateering or piratical societies, and the like. The by-laws of such organizations were treated as lawful and binding. The modern law of corporations can be traced through Roman law to the Greeks. In the family relations, marriage and divorce had their body of law. Marriage at the order of the parents was the usual rule. The wife became a part of the husband’s family. The relation of guardian and ward was looked after as was the devolution of the property of an intestate. The orator Demosthenes was left by his father, another Demosthenes, an estate of about thirty thousand dollars. His cousin Aphobus became his guardian and squandered most of the estate. Demosthenes, when he came of age, sued him for the property lost. Guardians or conservators could be appointed for spendthrifts squandering their own estate. In the family law the patriarchal household was abolished by the law that the son became emancipated on his enrolment for military service at the age of eighteen.
The laws of Solon gave to every childless citizen the right to make a will, but, of course, the law had not progressed so far as to allow a man to leave all his property away from his children. There was an action at law to set aside a will if made in extreme old age, or when the testator was of unsound mind, or was acting under undue influence, at least under female influence.
The law as to possession and ownership of property was sufficient to protect it, if applied. Damages to property, real or personal, were provided. Damages for acts of one’s animals, or slaves, were given. Leases of land were common. Actions for rent were given. Forcible entry upon possession was forbidden. Even the right to the use of a name could be litigated, and one of Demosthenes’s speeches is about the exclusive right to a name. Such law would protect the exclusive enjoyment of trade names and might prevent unfair trading.
Private international law and the right of citizens in another state were secured by conventions between such cities. These conventions gave to citizens of either state the benefit of the laws of the state where they were sojourning. In many respects the Greeks developed a public international law and some private international law.
There was, of course, the usual confusion between crime and private wrong. Homicide was a private wrong and its prosecution was left to the kindred. A bargain could be made with the slayer. The distinction was made between murder and manslaughter, between an intentional premeditated killing and a killing in sudden passion. There was no law of sanctuary as among the Jews. The law gave the kindred the right to declare a feud against the slayer and the kindred could compromise the matter, unless it were a premeditated killing. In actual murder the only way of avoiding capital punishment was perpetual exile. As we have seen, among the Jews a true murder could not be compromised by a money payment. This sort of law came into our system of law as the legal prohibition against compounding a felony. Justifiable homicide was recognized in Greek law. If the wounded man pardoned his assailant before dying, the kindred could not prosecute for the killing. According to their ideas, the injured man could release the cause of action before his death by a forgiveness. The law is otherwise among us, for the theory of the law seems to be that the deceased has nothing to do with the cause of action. It is given to those who are declared to be entitled to the cause of action.
In the penal law there was a mixture of public law and private law. Assault, false imprisonment, homicide, rape, theft, maiming, slander, and contumelious treatment were treated as private injuries, yet a part of the recovery went to the state. In a number of cases the law inflicted punishment without any private recovery. Adultery was a subject for public prosecution. Personal revenge by a husband for adultery or by the lover of a concubine for poaching on the preserve was justifiable as a part of the primitive law of self-help, and a killing for that reason was justifiable.
The law developed many different kinds of actions—indictments, public prosecutions or impeachments, actions for impiety, for violence, for the recovery of real and personal property. There were various different forms of lawsuits with particular names. There was no developed preventive remedy by injunction. A different remedy was provided for the recovery of personal property from that for the recovery of real property. The laws provided in certain commercial cases a summary remedy and trial within thirty days.
It is apparent that this is a very highly advanced system of law. But it is in the realm of contractual relations, pledges, mortgages, trading ventures, banking operations that we reach the highest development. Such business was done by written contract, and the written contract precluded proof of any other contract made. As is well known, after the Battle of Salamis and the defeat of the Persian fleet, Athens founded the Delian League, and by a natural process made herself the great entrepôt of commerce. She, by her laws, so regulated her commerce that it must all pass to Athens, much in the manner that the English made and used their Navigation Laws. To conduct such a commerce, advances of money by capitalists were necessary. Athens found such a commercial system ready to her hand in the Babylonian system of merchant adventuring, which had been adopted in the Ionic cities in Asia. Thence it found its way to Athens, when, after the Persian wars, she acquired her great commerce.
As an illustration of the written contract being the sole contract, we may instance the case of a woman banker, Nicarete, at Thespiae. She had made loans to the City of Orchomenos in Boeotia. Borrowings by municipalities were common. These loans of Nicarete had been made at various times and, as usual, the city was unable to pay upon the maturity of the loan. A contract was thereupon drawn up whereby a loan to the amount of the advances to the city was recited to have been made to named officials of the city and ten citizens selected by the banker. This was, of course, contrary to the fact. The pretended loan gave power to the banker to proceed to collect by execution against the property of these persons. The new loan was made payable to bearer. Thus it appears that an agreement to pay money took the form of a negotiable promissory note or its equivalent, deliverable from bearer to bearer. What was desired to be done was for the city to obtain an extension of the loan, which the banker was willing to grant upon further parties becoming makers of the paper, and making themselves personally and primarily liable along with the city. The transaction was in fact a renewal of the loan, by the taking up of the outstanding paper, by a new note with new makers. It is certain that the substituted agreement would never have been made if it had lain in the power of the parties to defeat the contract by proof that the substituted contract did not express the real transaction. There seems to be no reason to doubt that the Greek law was at all different from the Babylonian or from our own to the effect that what the parties put into writing to be the contract they cannot deny by oral evidence. The rule, by a strange misnomer, in our law is called the parol evidence rule.
Upon the maturity of this fictitious loan another delay in payment took place. A new agreement was made that the city itself would pay the loan in two months, and when that time came the city paid. Whether this new paper released the makers of the second note does not appear. The practice of making a loan to a city, enforcible by execution against citizens, seems to have been a common device. It was evident that whenever an execution was provided for in the contract itself, the Greek law was providing a means, just as our contracts often provide a means, of obtaining the remedy as a matter of course. The Greeks had judgment notes also, just as we have.
Personal arrest on debt was abolished by Solon, but the remedy of distress by self-help remained. Contracts of surety-ship were common, but the surety became bound not secondarily to his principal but primarily. Almost every contract was buttressed by sureties, such as loans and leases. Where sureties became liable for the appearance of a criminal, if the criminal absconded, they might be subjected to the punishment. Our device of a bail bond in a penal sum of money was not reached by the Grecian law.
The provisions of law as to leases were peculiar in that a conveyance prevailed over a lease existing on the land. Our rule is to the contrary in that possession of the land by the tenant is notice of his rights. Special clauses as to the method of cultivation were common. Temple lands were often leased in perpetuity upon a rent reserved. A lease in perpetuity upon a rent reserved presents some very curious questions in our law. The law as to sales of goods was clear, and sales were generally publicly made before witnesses or in the open market. A close supervision was exercised over the quality of the goods and honest weights. Sales could be made upon credit, and one of the changes in the law proposed in Plato’s Laws was that all sales upon credit should be abolished. Title in the goods passed upon payment, either in cash or by credit; but in our law title passes upon the bargain as to goods in existence and ascertained.
It will be seen that all the great heads of the law are well represented in Athenian law, and that so far as general rules are concerned Greek law would in its main lines be found to differ little from our own. The difficulty with it as a system was its failure to develop a competent tribunal to apply the law. That the state owed the duty of doing justice between its citizens would not have been questioned by Greeks, and the Greek law had lost the primitive element of an agreed submission to the tribunal provided by the law, before the tribunal could force the attendance of the defendant.
When through the conquests of Alexander the Great and the existence of the kingdoms of the Hellenic successors of Alexander, Greek rule became distributed over the eastern world, this system of Hellenic law became almost a world system, and through the Romans and their praetorian law, called the law of nations, its principles continued to survive. So much was this the case that when the Corpus Juris of Justinian was compiled, it would have been difficult to separate Roman from Greek elements; for as Pliny the Younger said, the Greeks gave to the Romans their laws.
[1. ]In Hurtado v. California, 110 U.S. 516, 535 (1884). —C. J. R., Jr.
[2. ]Michigan Central Railroad Company v. Powers, 201 U.S. 245 (1906) (argument of counsel). —C. J. R., Jr.