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Henry A. Rhodes
The Athenian courts discussed in this unit existed in the second half of the fifth century B.C. and the first half of the fourth century B.C. It should be stated that this is a controversial period in the sense that many facts of this era are still in dispute among historians. I have thus attempted to state only facts about courts in this period that can be substantiated.
The first written laws appeared in Athens around 621 B.C. They were attributed to Dracon, a thesmothes (a lawgiver). The punishment for all offenses was death. Regardless of how small or serious the infraction the punishment was the same. Dracon felt that people guilty of small infractions of the law deserved the death penalty and that there was, after all, no greater penalty for those that had committed the more serious infractions. As a result, laws today which are cruel and harsh are sometimes referred to as Draconian.
(A discussion could center on how harsh or mild the laws should be. See ‘Teaching Strategies’ below.)
One would tend to think that such a harsh code of law as the Draconian Code would incite the people to riot and rebel. This was not the case in Athens. Our sources, primarily Aristotle’s Constitution of Athens, suggest it was apparently the disparity of wealth between the rich and the poor which caused the collapse of the existing constitution. Another important factor seems to have been the demands of rich men from common families to share in the privileges reserved for the aristocrats.
The people of Athens realized that they needed someone to revamp their constitution to stop the quarreling among the various families. The rich were concerned about collecting their debts and the poor were concerned with paying these debts. All groups agreed that Solon was the man for the job. For Solon owed no one and no one owed Solon anything.
Solon was given a great deal of leeway in reorganizing the Athenian constitution. Solon’s first step was to abolish all of Dracon’s laws except the ones pertaining to homicide. The affluent wanted Solon to aid them in collecting their debts, while the poor wanted Solon to divide up the land and give everyone an equal share. Solon however acquiesced to only the first demand.
Solon was able to appease the poor by cancelling all debts. It was also common at this time for Athenians to use their bodies and those of their family to secure loans. Solon outlawed this practice. The wealthy non-aristocrats were satisfied when he instituted a property qualification for admission to the archonship, the chief magistracy, previously the sole prerogative of certain noble families. Under Solon’s new system, they were elected from the richest of the four newly created Solonian classes. The archons had a virtual monopoly on the administration of justice.
The lowest class in the Solonian system was made up of “Thetes” who were initially prohibited from holding public office. These were common citizens. From this group most of the members of the jury were selected. (The process of selecting a jury will be discussed in detail later in the unit.)
The decisions of the magistrates called “archons” could be appealed in the courts. As time passed, it became so common to appeal the decisions of the archons that they, instead of passing judgement, referred the cases to the appropriate courts.
There were two types of cases handled by the Athenian courts. First, there was the dike or private case. This type of case did not affect the community as a whole but involved individuals who claimed they had been wronged. This type of case could only be initiated by a person who was personally involved or affected by the case. Second, there was the graphe or public case. This type of case did affect the community. Cases of treason, desertion, or embezzlement of public funds serve as examples of ‘graphe’ cases. Any Athenian male citizen could initiate this type of case. It should be noted that in both cases if the prosecutor received less than 1/5 of the jurors’ votes a substantial fine was levied.
It would be impossible to examine every law attributed to Solon. The laws listed below were chosen to give students an idea of the wide range of laws and how some of these laws dealt with some of the practical problems of an agricultural society. A discussion of these laws should occur with students while covering this part of the unit. I would also suggest that if a teacher would like to examine some of Solon’s other laws that they refer to the books listed in the teacher’s bibliography concerning the life of Solon. Among the laws are the following:
Jury duty was optional in Athens. The only judicial service required from all Athenian male citizen was that after their fifty-ninth birthday they had to serve as arbitrators. An arbitrator tried to settle a case without it having to be taken to a court.
- 1) A man was permitted to kill an adulterer caught in the act.
- 2) Fines were levied against men who either forced or enticed a free woman.
- 3) Men were forbidden to talk evil of the dead.
- 4) Athenians were permitted to will their estates to people outside of their family if there were no children.
- 5) If a man couldn’t find water within a certain distance from his house he was permitted to use his neighbor’s well
- 6) Among agricultural products, only oil could be exported.
The Athenian court system was comprised of a series of courts. A few of the courts that we are aware of that existed in ancient Athens are:
The Middle, Greater, Red, and Green Courts were for the lesser offenses. Our knowledge about these courts is somewhat limited. However, we know a great deal more about the proceedings of the Areopagus, the Palladion, the Delohinion, and the Prytaneion. These are the courts where the homicide cases were judged. These are the courts that I wish to focus on in this part of my unit.
- 1) the Middle Court
- 2) the Greater Court
- 3) the Red Court
- 4) the Green Court
- 5) the Areopagus
- 6) the Palladion
- 7) the Delphinion
- 8) the Prythaneion
The Areopagus received its name because it met on the hill of Ares in Athens. This court had the sole right to try cases of intentional homicide. The Areopagus was comprised of ex-archons who had had experience in government administration, including the court system. The tone of this court was more serious than that of the other courts due to the seriousness of the cases dealt with in this court. Even though the death penalty was still on the books from the Draconian era, it was not the inevitable punishment. Some common judgements that were handed down included sending the guilty person into exile or confiscating the murderer’s property.
The Palladion was reserved for cases concerning unintentional homicides. For example, if someone was killed in a wrestling match, that person would have to appear in this court to prove that the homicide was accidental and unpremeditated. In this case the person involved was usually never punished. A common punishment for unintentional homicide was exile.
I think that many students would love to hear about how a person who was already in exile would defend themselves against a charge of homicide or infliction of bodily injury. The accused would have to make his defense standing in a boat offshore at a specified place called Phreatto while the jury convened on the beach.
If a person felt that they were justified in killing a person their case would be tried in the Delphinion. It was justifiable homicide to kill an adulterer caught in the act or a burglar caught in the act at night according to Athenian law.
The last Athenian court I would like to discuss is the Prytaneion. This court tried homicide cases in which animals, inanimate objects, or unknown person were responsible for a death. If an animal or an object was found to be responsible for a death, the animal or object was removed from Athens, or the animal was put to death.
The unknown person was sometimes “forced into exile” by decree. The purpose of prosecuting the animal, the inanimate object, or the unknown person was to prevent other citizens from meeting the same fate. It also gave the Athenian citizen the feeling that something official was being done.
The next aspect of the Athenian court I would like to examine concerns the jury system and its selection process. The Athenians believed in large juries and taking elaborate precautions to avoid corruption. The size of the juries could run as high as 6,001 members, depending on the severity of the case. The juries were composed of an uneven amount to avoid ties. Ties would work in favor of the defendant because a tie meant acquittal and there was no appealing a decision of a court.
Another interesting aspect of the Athenian jury system was that the jurors were paid about 1/3 of what a skilled worker was paid for a day’s labor, three obols. This wasn’t a great amount of money, but only the citizens that were somewhat well-off could afford to give up a day’s earnings. Thus, some Athenians were not enticed by this payment.
In order to become a juror all one had to be was a citizen of Athens, i.e., a male born to Athenian parents, and be at least 30 years old. Under the system used for most of the fourth century, a person who wished to become a juror had to report to an area designated for his tribe. (there were 10 tribes which had been created by Cleisthenes near the beginning of the fifth century) They would draw lots with their fellow tribe members for a ticket which would indicate whether they would serve that day and, if so, in which court they would serve. An allotment machine was used in this selection process.
Once the jury was in court, lots were drawn to select a juror to work the water clock. The water clock was used to time the speeches of the defendant and the prosecutor. The length of the speeches depended on the penalty involved. The clock was only stopped for testimony or the reading of a deposition by a clerk. There was no evidence in the form of exhibits presented at trials. A slave’s testimony was only admissible if it was made under physical torture. In addition to choosing a juror to monitor the water clock, four jurors were selected to count the votes.
The jurors were given two bronze knobs, one hollow, the other solid. Bystanders could not tell which knob was which. If the juror felt the defendant was innocent he cast the solid knob, if he believed the charges made by the plaintiff, he cast the hollow knob. The winner would be decide by a simple majority.
It must be emphasized at this point that there was no public prosecutor and cross examination of witnesses was not allowed. The case was thus decided by the speeches made by the plaintiff and the defendant involved in the case. The participants spoke for themselves. Others could join in speech making for either side if the person was unable to speak adequately. Also litigants employed paid speech writers (which was an illegal practice, but was common nonetheless) known as logographoi. Some of the well known speech writers of the time were Lysias, Antiphon, Aeschines, Demosthenes, Isaeus, Isocrates, Andocides, Aeschinese, Demades, and Hyperides. (See book in ‘Teacher’s Bibliography‘ for several court cases with speeches written by several of the above mentioned.)
Another interesting aspect of the Athenian legal system was that only free male citizens could instigate litigation. If a women wanted to bring someone to court, she would have to do it through her father, her brother, or some other male relative.
Before concluding my discussion of the courts in Athens, an examination of the role the Athenian political clubs played in this legal system must be noted. One reason why precautions were taken against corruption in the jury selection process was due to the activities of these political clubs in Athens.
When I first read about these activities I became somewhat dismayed with the justice system in Athens. However, upon further study and thought I realized that due to the large size of the juries these club activities may have been somewhat ineffectual and justice was a reality and not a farce in the Athenian legal system. I feel these club activities should be cited in order for students to get an accurate picture of the Athenian court.
Some of the ways in which these clubs tried to influence the courts are:
- 1) Friendly Prosecution—in this instance someone from the same club as the defendant would prosecute, but they would present a weak case.
- 2) Counter Suits—a member of the club would instigate a suit against the person prosecuting a fellow member of the club in hopes of getting the accuser to drop his case.
- 3) Creating Sentiment—club members would circulate favorable stories about the defendant and lies about his opponent or vice versa depending on the position of the club member.
- 4) Falsifying evidence or Suppressing evidence
- 5) Bribery of jurors
- 6) Antidosis—a person assigned a “liturgy”, i.e. paying for some public enterprise, challenges another man to pay for the liturgy or to exchange property with him.
- 7) Assassination
Before going any further an examination of civil law and English common law must be made. For they formed the basis from which these courts operate.
The Random House Dictionary of the English Language—the Unabridged Edition defines civil law as the body of laws of a state or nation regulating private matter. The courts use these laws in administering justice and formulating decisions.
One source which influenced American civil laws was the Roman Justinian Code. This code was developed in the sixth century A.D. It spread throughout the European continent. The Justinian Code was transported to the colonies by the French, the Spanish, and the Dutch, where it was modified so as to be useful and applicable to situations encountered by early American settlers. Another source of American civil laws was the Napoleonic Code which also has its basis in Roman law. In fact the Napoleonic Code still plays a part in the Quebec and Louisiana legal system. As our country developed it gave rise to fifty-one individual codes of civil laws. They were established by federal statutes and the state statutes of the fifty states. If someone wanted to know what the law pertaining to alcohol was in the U.S., they would have to examine the federal statutes and the state statutes of every state in the union concerning alcohol.
A solution was built into the U.S. Constitution to help federal and state courts deal with conflicts which arise when state statutes are in direct conflict with federal statutes. The solution is the ‘Supremacy Clause’ found in Article VI of the U.S. Constitution which states:
This Constitution, and the laws of the United States which shall be made in Pursuance therof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.What makes Article VI effective is the fact that all public officials, federal and state, are bound by an oath to support the U.S. Constitution which is administered prior to taking a public office.
Prior to the development of civil law in the U.S. the court systems relied on English common law. Common law is defined as the unwritten law, especially of England, based on custom or court decisions, distinct from statute law. After the Revolutionary War the American courts became detached from the English court system. Each colony began to develop its own distinct common laws. As time passed, U.S. Law developed from a combination of English common law and American statutes. It must be emphasized to students that common law develops from the decisions of judges over a period of time.
There still exists a common thread between English and American common law that could not be cut and that was “stare decisis.” ‘Stare decisis’ is the legal rule that past precedents determine the outcome of contemporary legal disputes (Jay Sigler, An Introduction to the Legal System, p.12). A person attempts to establish precedent between their case and a case from the past in hopes of receiving a similar verdict. “Stare decisis” still plays a major role in determining the outcome of cases in federal and state courts.
Another aspect of the English legal system adapted by most U.S. legal systems is the grand jury. A grand jury is a body of citizens (chosen in the same manner as jurors) whose responsibility is to determine if there is enough evidence to justify bringing charges against an individual. The grand jury was instigated in order to avoid the official persecution by a prosecutor without just cause. Grand juries are not a part of every state judicial system while a grand jury indictment is necessary for federal prosecution.
Two types of cases are handled by state courts: 1) criminal cases—where it is alleged that a state law has been broken. 2) civil cases—cases involving a dispute between two or more individuals. Criminal cases can be classified as either felonies or misdemeanors. Felonies are the more serious crimes usually involving murder, kidnapping, or burglary. The less serious offenses such as traffic violations, disorderly conduct, or indecent exposure are referred to as misdemeanors.
The organization of state courts varies from state to state. There are three types of courts found in most states. They are a trial court, an appellate court, and a state supreme court. A case is first heard in a trial court. If the decision is unsatisfactory, it may be appealed in the state appellate court. If the case is still unresolved it can be bound over to the state supreme court. There are two courts a litigant can take his case after the state supreme court. They are the U.S. Court of Appeals and the U.S. Supreme Court. I have heard many a middle and high school student utter the phrase, “I’ll take it to the U.S. Supreme Court if necessary.” Usually the case or problem is petty in nature. Students need to realize that state and federal appellate courts will hear a case only under certain circumstances. They tend to hear cases in which they feel a lower court has handled the case improperly or due process denied. The circumstances in which the Supreme Court becomes involved will be discussed later.
Amendment VI of the U.S. Constitution guarantees every U.S. citizen a speedy and public trial by jury. The state and federal juries are composed of twelve, or sometimes six, individuals chosen at random, usually from the voter registration list. The jury is sequestered while hearing a case and is not allowed to discuss the case with anyone, including other members of the jury. Jurors may discuss the case with the other jurors only during the deliberation part of the trial. Unlike the Athenian jury system, an unanimous vote is necessary for acquittal or guilty verdict in the American court system. In the U.S. a person is innocent until proven guilty and guilt must be proven to a jury beyond a reasonable doubt. A tie can result in an acquittal or a new trial.
Judges in the state court system are chosen in a variety of ways. They are:
In any case the state judge is always beholden to a political party. Judges for the federal courts, on the other hand, are appointed by the President with the approval of the Senate. These judges serve for life. Judges in federal and state courts can overturn guilty verdicts if they feel that the judge in the original trial committed an error or the jury made an error in judgement based on the overwhelming weight of evidence presented.
- 1) A partisan election, in which the judge is nominated by a political party and runs on that ticket.
- 2) Election by the legislature.
- 3) Non-partisan election, in which restrictions are put on political parties in designating candidates.
- 4) The governor can appoint the judges.
- 5) The Missouri Plan, in which the governor chooses from a list recommended by a special commission.
The major defect in the state court system is court congestion. (Connecticut is one of the worst off in that regard.) This is due to the enormous case load and the fact that every person has a right to a trial by jury, in all but the most trivial cases. This problem of court congestion could lead to the release of a guilty individual on the grounds that the state violated his civil rights by not granting him a speedy trial as outlined in the sixth amendment of the U.S. Constitution.
The federal court system is made up of U.S. District Courts, U.S. Appeal Courts, the Supreme Court, and several special courts established by Congress.
The U.S. District Courts hear cases involving federal statutes as mandated by the Constitution and the Judiciary Act of 1789. There are 93 district courts. The U.S. Court of Appeals hears cases in which individuals have chosen to appeal the decision of the district court or a state court. There are eleven U.S. Courts of Appeals. If satisfaction is not achieved at this level, the case may be appealed to the Supreme Court. There are three writs that a lawyer can use to get a case heard before the Supreme Court. The first involves an appeal based on the fact that a state statute is in direct conflict with a federal statute. Or, an appeal can be filed if the federal law in question is alleged to be unconstitutional. The second type of writ that can be obtained is one of “Certiorari”. This writ is issued when four Supreme Court justices feel that a case deserves the court’s attention. The third (rarely used), is a writ of “Certification”, which can be obtained if a lower federal court wishes to have the Supreme Court examine a case in which the lower court is in doubt as to a course of action to take.
The special courts that were established by Congress are as follows:
- 1) The Court of Claims—cases against the government are heard in this court.
- 2) The Customs Court—cases involving import taxes or tariffs are heard in this court.
- 3) The Court of Customs and Patent Appeals—cases appealing the decisions of the Custom Court or the Patent Office are held here.
- 4) The Territorial Courts—cases of people who live in U.S. territories are held here.
- 5) The Tax Court—appeals concerning payment of taxes are held here.
Another area of comparison between the two systems lies in the type of cases tried in both legal systems. The dike case is similar to the civil case in the respect that both cased involve disputes between individuals. In the same light, the graphe case is similar to the criminal case because in both cases the state or public is affected by the case in question.
Another similarity between the legal systems is that both systems had specialized courts to handle different types of cases. Differences existed between the procedure and type of cases handled by these courts. For example in Athens there were several courts that dealt with homicide. While in the U.S. murder cases are dealt with in one court, either in the state trial court or the U.S. District Court, depending on whether federal or state statutes were violated.
The role and selection of the judges was another area in which the two systems differed. Even with Solon’s reorganization, the selection of judges was based on class, even though wealth was used to determine a person’s class. There existed a variety of ways to choose a judge in the U.S. and there are many factors which influence their selection, but class is not one of them (this was not always true). Further, persons without legal training and experience are rarely considered for judgeships in the U.S.
The role of the judges during court proceedings in Athens and the U.S. is another area of difference. The Athenian magistrate had no say about the outcome. He simply presided over the proceeding. Their American counterparts, by contrast, play a more active part in the decision making process. These judges help interpret the law for the jury and if they feel a miscarriage of justice has occurred in the face of overwhelming evidence they have the power to overturn a decision of a jury.
The Athenian and American court system entrust the jury with the responsibility of determining truth. One difference between the jury systems is size. The Athenians believed in large juries with an odd number. In comparison, the American jury is composed of only twelve, or sometimes even six, members. Random choice is used in the jury selection process in both systems despite the difference in procedure. Another difference in the jury system lies in the fact that in Athens a simple majority is needed for an acquittal or a guilty verdict, whereas in the U.S. an unanimous vote is necessary.
Two professions developed alongside each system to aid their citizens in presenting their cases. The logographos aided the Athenian citizen and the modern-day lawyer aids the American citizen. A distinction should be made between the logographoi and the American lawyer. Anyone could be a logographos; there were no prerequisites or qualifications whereas the American lawyer has to pass a bar exam to prove his expertise. In concluding, each judicial system provided a system of justice that its citizens found acceptable. The citizens may not have agreed with the decision of the courts but they apparently agreed with the process.
- I. Special reports on the following people or subjects
- should be assigned to students while covering the
- appropriate parts of the unit:
- ____A. Solon
- ____B. Dracon
- ____C. Common law
- ____D. Evidence admissible in U.S. courts
- ____E. The Effects of the Napoleonic Code and Justinian Codes on American Law
- ____F. History of the Grand Jury in the U.S.
- ____G. The Connecticut Judicial System
- II. The following vocabulary words should be mastered by students with the completion of this unit. (See lesson plans for a teaching suggestion)
1. “Draconian” 18. Common law 2. thesmothes 19. Supremacy Clause 3. archon 20. Civil law 4. Thetes 21. stare decisis 5. Areopagus 22. graphe 6. Palladion 23. dike 7. Phreatto 24. civil case 8. Delphinion 25. criminal case 9. Prytaneion 26. felony 10. water clock 27. misdemeanor 11. plaintiff 28. Certiorari 12. defendant 29. Certification 13. logographoi 30. The Court of Claims 14. Friendly Prosecution 31. The Custom Court 15. Counter Suits 32. The Court of Customs 16. Creating Sentiment and Patent Appeals 17. Antidosis 33. Territorial Courts 34. The Tax Court 35. grand jury
- III. I would recommend that this unit be taught using the lecture-discussion method. A U.S. History text or U.S. Civics text would be used by the students for a basis for discussion concerning the U.S. court system. This would be supplemented by lectures from the teacher concerning the Athenian court system. On the completion of this unit a visit to a local court should occur. Some suggested discussion questions are as follows:
- ____1) Are there any laws that you know about today that you would consider “Draconian”?
- ____2) How would you like to live in a society in which every offense was punishable by death?
- ____3) What are some strengths and weaknesses of the American and Athenian court systems?
- ____4) Why do you think evidence from a slave was only admissible if it was received while the slave was tortured?
Objective To explain how a case is tried in an American court.
- 1. The objective will be accomplished by setting up a role playing situation. The following will be needed: 1) a judge 2) a grand jury 3) prosecutor 4) defendant 5) a jury 6) cases
- 2. Once the class has elected a judge, the judge will appoint a grand jury from the class to determine if there is enough evidence to prosecute. (The cases will come from a class assignment in which each student will be responsible for creating one case.)
- 3. The next step will be the actual trying of the case and the rendering of a verdict.
- 4. With each new case there should be a change in the court room personnel so that as many as possible can experience the different positions of an American court.
After concluding several cases students should write a brief essay in which they describe their experiences in their role playing situations.
Objective To create an Athenian case and then play the role of a logographos.
- 1. Several Athenian cases should be read from Kathleen Freeman’s The Murder of Herodes and Other Trials from the Athenian Law to the students to give them examples of cases tried in Athens and the speeches that were written by logographoi. The cases to be read to the students are:
- ____a. Wounding with Intent to Kill: Quarrel over a Boy— in this case the speech for the defendant was written by Lysias, the case centers on a dispute between two Athenian men over the affections of a boy. In the quarrel one of the men is injured
- ____b. On the Murder of Herodes—the speech for the defendant was written by Antiphon. In this case Helos, a man from Mytilene, is accused of murdering Herodes.
- 2. Students will first pair up in teams, one being the defendant, the other the plaintiff.
- 3. Students will then create a case or a dispute.
- 4. The students will then have to go to another student and have them write a speech defending their position. Students will not be allowed to write their own speeches.
Homework Complete speeches for fellow classmates. This lesson will be concluded the following day by the class acting as the jury and deciding the cases based on the speeches.
Objective To review vocabulary words listed in the ‘Teaching Strategies’.
- 1. This lesson will be modeled after the game show ‘What’s My Line’.
- 2. Each student will be assigned a person or vocabulary word from the vocabulary list.
- 3. Then each member of the class will be allowed to ask the student questions pertaining to their role. The student questioned can only answer in the affirmative or the negative. If a student asks a question that receives an affirmative answer, they are allowed to ask another question until they receive a negative response, at which time we will go on to the next student. This procedure will continue until someone guesses the role or we go through the entire class.
- 4. The winner will be the student who stumps the most students.
Andrewes, Antony, The Greeks, W.W. Norton & Company, New York, 1967. Andrewes gives an excellent social, geographical, and historical account of Greek life.
Aristotle, Constitution of Athens, translated by Kurt von Fritzand Ernest Knapp, Harfner Press, New York, 1974. This is an account of the Athenian constitution by Aristotle. This constitution covered the fifth and fourth centuries B.C.*
Calhoun, George Miller, Athenian Clubs in Politics and Litigation, The University of Texas Bulletin, Austin, Texas, 1913. Calhoun gives an account of the activities employed by political clubs in Athens to influence court cases.
Freeman, Kathleen, The Murder of Herodes and Other Trials from the Athenian Law courts, MacDonald & Co., London, 1946. Freeman translates speeches from several Athenian court cases. I would suggest the use of this book for examples of Athenian court cases. It is also possible to look up Loeb Library translations of the Attic orators.*
Karlen, Delmar, Judicial Administration-the American Experience, Oceana Publications, Inc., Dobbs Ferry, New York, 1970. Karlen gives a brief overview of the American court system, he mentions several shortcomings that are worth noting.
Mayers, Lewis, The American Legal System, Harper & Row, New York, 1964. This book gives a good overview of the American court system.
MacDowell, Douglas M., The Law In Classical Athens, Cornell University Press, Ithaca, New York, 1978. This book serves as an excellent source for information on ancient Athenian law.
The Athenian Citizen, American School of Classical Studies at Athens, Princeton, N.J., 1974. A short pamphlet with a brief account of the court system and good illustrations of the allotment machines, water clocks, and jurors’ ballots.*
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