¹ See, above all: Steinwenter 3ff. 29ff., in the main approved by Koschaker, P., SZR 47 (1927) 508, and San Nicolò, M., Ztschr. f. vgl. Rechtswiss. 43 (1928) 294; Bonner and Smith I 29f. 42f. Further: Gilbert, G., Jahrb. f. class. Philol. Suppl. 23 (1897) 458ff.; Bréhier, L., Revue historique 84 (1904) 27ff. 32; 85 (1905) 11ff. 21; Lipsius 6; Bonner, R. J., Class. Philol. 7 (1912) 17; Latte, K., Heiliges Recht (Tübingen 1920) 2f.; Smith, G., The Administration of Justice from Hesiod to Solon (diss. U. of Chicago 1924) 1, 9; Düll, R., Der Gütegedanke im römischen Zivilprozessrecht (Munich 1931) 112ff.; Calhoun, G. M., Introduction to Greek Legal Science (Oxford 1944) 9. Similarly Ehrenberg, V., Die Rechtsidee im frühen Griechentum (Leipzig 1921) 57, 72ff., who also derives the civil procedure of the historical period from an original custom of settling controversies through arbitration, but suggests that the kings of the heroic period dispensed justice authoritatively by virtue of their themistes (pp. 4, 8, et al.).Google Scholar

² Steinwenter 29ff. 42, 54 n. 2; Bonner, and Smith, I 43f.; Calhoun, , op. cit. 16f. 31.Google Scholar

³ Bonner, and Smith, I 44ff., especially 48f.; also Class. Philol. 40 (1945) 11.Google Scholar

⁴ Steinwenter passim , especially 38ff. 60ff. 197f.; Düll, , op. cit. 111ff.Google Scholar

⁵ Geist des Römischen Rechts I (5th ed. Leipzig 1891) 167ff.Google Scholar

⁶ See his formulation in Anklage und Streitbefestigung im Kriminalrecht der Römer (Sitzungsberichte der Wiener Akademie 184 I; Vienna 1917) 222, also Koschaker, SZR 37 (1916) 356; Betti, E., Diritto romano I (Padua 1935) 451. For general information: Wenger, L., Institutes of the Roman Law of Civil Procedure (transl. Fisk, ; New York 1940). where Wlassak's writings are quoted; especially pp. 5, 24, 175f. Wenger himself believes in the fusion of an original authoritative administration of justice by the kings and of an ancient custom of private arbitration, both of which he assumes to have existed side by side in the pre-republican period; see his paper in Festschrift für Gustav Hanausek (Graz 1925), especially pp. 6ff.; also Instit. cit. 25 n. 13.Google Scholar

⁷ Literature concerning Egypt, Babylonia, and Assyria is quoted by Düll, , op. cit . 110f. For Germanic laws see Steinwenter 9ff. and authors cited by him; cf. also Beyerle, F., Das Entwicklungsproblem im germanischen Rechtsgang (Deutschrechtliche Beiträge 20 II; Heidelberg 1915) 272ff. 333ff. For English law: Sir Frederick Pollock in Select Essays in Anglo-American Legal History (Boston 1907) I 95.Google Scholar

⁸ Pollock, Sir Frederick, A First Book of Jurisprudence (6th ed. London 1929) 24; Vinogradoff, Sir Paul, Outlines of Historical Jurisprudence I (Oxford 1920) 351; Steinwenter 3f.; Düll, , op. cit. 110 note; Pantapoulos, J. in Festschrift für Paul Koschaker (Weimar 1939) III 199; see also Eerneker, E., ibid. 268. Objections were raised by G. Beseler, SZR 50 (1930) 443.Google Scholar

⁹ Wenger, , Festschr. Hanausek 7, Institutes 24 n. 10, SZR 60 (1940) p. xxvi. Bonner, , Class. Philol. 7 (1912) 17, suggests that ‘the Homeric Greeks took a second step by devising a system of challenge and wager to induce an unwilling opponent to submit to arbitration.’ Challenge and wager certainly did play their parts in the settling of disputes between the early Greeks, as they did in every primitive system, but I find it hard to see how they could be used to make anyone accept arbitration against his own will, unless the challenger had the support of some sort of public authority with the right and the power to employ means of compulsion.Google Scholar

¹⁰ For the nature and history of those efforts see Schumann, F. L., International Politics (3rd ed. New York and London 1941) 181ff. See also the interesting remarks by Hart, Professor, Proceed. Amer. Soc. of Internat. Law, 19th annual meeting 1925, p. 113.Google Scholar

¹¹ Rabel, E., SZR 36 (1915) 340ff. See also U. E. Faoli in Studi in memoria di Aldo Albertoni II (Padua 1937) 314 n. 4, 330f. Paoli has shown the limitations of the right to self-help in the law of classical Athens, imposed by the δίκη βιαίων, which lay against every act of violence, and by the formalization of the acts of ἐξαγωγή and ἐξαίρεσις. The most recent discussion of δίκη ἐξούλης , by Kaser, M., SZR 64 (1944) 191ff. is likewise in basic agreement with Rabel's conclusions.Google Scholar

¹² SZR 38 (1917) 315. See also, as to Roman law, Koschaker, SZR 37 (1916) 356, Juncker, J., in Gedächtnisschrift für Emil Seckel (Berlin 1927) 203 n. 1, 212; Düll, , SZR 55 (1935) 9. In a very general way the idea is further expressed by H. Kelsen in The Legal Process and International Order (London 1935) 20 and in the symposium World Organization (Washington 1942) 393, and, following him, by Hostie, J., Aujourd'hui (1940) 16. Weiss, E., Rhein. Ztschr.f. Zivil- und Prozessrecht 11 (1921) 1–49, finds the motive power for the growth of judicial procedure in the effort of the state to curb, gradually take over, and eventually eliminate private vengeance. His arguments are drawn from the ways in which this struggle is apparent in the evolution of certain branches of the substantive law, especially, theft and adultery, in various legal systems. In the present study the problem is approached from a procedural angle. I am the more glad to state my basic agreement with Weiss, inasmuch as his article came to my knowledge only when my study was in the main completed. I am glad also to find my conclusions as to the nature of the judgment in primitive procedure in substantial agreement with a theory set forth by Gernet, L., Archives d'hist. du droit oriental 1 (1937) 111–144. Gernet's article, too, came to my knowledge after completion of the pertinent part of my manuscript.Google Scholar

¹³ Not necessarily earlier in the chronological sense, since those more primitive modes may, in their sphere, have been still in use when within the organized community such lawsuits as the one described in our source were already the order of the day. It may, however, be noted that the Poem of the Shield is considered by most authorities one of the latest parts of the Iliad; see Fanta, A., Der Staat in der Ilias und in der Odyssee (Innsbruck 1882) 3 (following Lachmann); Lipsius 3 n. 6; Busolt, G., Griechische Staatskunde (Müller's Handbuch der classischen Altertumswissenschaft IV 1; Munich 1920) .332; Ehrenberg, , op. cit. 55; Westrup, C. W., Mélanges Paul Fournier (Paris 1929) 774 n. 46; Steinwenter 34; differently still von Wilamowitz-Moellendorff, U., Die Ilias und Homer (Berlin 1920) 164. Nevertheless Lipsius and others refused to consider the possibility that legal information found in the various parts of the epic may reflect different political and social conditions respectively. (In taking an opposite stand, I do not intend to give support to the attempt by Treston, H. J., Poine [London 1923] 13–24, to attribute every particular feature to either of the two racial groups which are supposed to have made up, in complete separation from one another, the social structure of the heroic age, namely, the ‘Achaean’ nobility and the ‘Pelasgian’ masses, the first forming an individualistic society, and the latter organized on tribal lines; see also Leaf, W., Homer and History [London 1915] 243ff. The historical questions of the origin and development of the Homeric political system and of the relations between aristocracy and common folk are not within the scope of this study.) Google Scholar

¹⁴ Most of it is listed by Bonner and Smith I 31 n.5. Other literature, not quoted there, will be cited in the following notes.Google Scholar

^14a See Pernice, E. in Gercke-Norden's, Einleitung in die Altertumswissenschaft II (3rd ed. Leipzig 1922) 75f.Google Scholar

^14b op. cit. 76.Google Scholar

¹⁵ Translation by Lang, A., Leaf, W., Myers, E., The Iliad of Homerus (London 1903) 381, but changed in verses 499f.Google Scholar

¹⁶ Maas, E., Scholia Graeca in Homeri Iliadem Townleyana (Oxford 1888) II 273.Google Scholar

¹⁷ Bonner and Smith I 32–35, with literature. This opinion, also shared by Partsch, J., Griechisches Bürgschaftsrecht I (Leipzig 1909) 77, and Vinogradoff, , op. cit. 347, now seems to prevail over the theory (first advanced by Müncher, , Allgemeine Schulzeitung 1829 II 579, and fully developed by Hofmeister, A., Ztschr.f. vergl. Rechtswiss. 2 [1880] 444ff.; more followers listed by Steinwenter 34 n. 3., who himself seems inclined to accept it) that the suit concerned the question whether the plaintiff might or might not refuse to accept a blood-fine offered by the defendant.Google Scholar

¹⁸ Decisive is, in my opinion, ἀποδοῦναι in 499. In all periods of Greek legal history ἀποδιδόναι was technical for paying a debt already incurred. If the meaning of verses 499f. were that suggested by Hofmeister, the term should be ἀποτῖσαί. Cf. Wolff, H. J., Transact. Amer. Philol. Ass. 72 (1941) 427. The difficulty which Steinwenter finds in the pointed contrast πάντ' ἀποδοῦναι—μηδὲν ἑλέσθαι, disappears when we recall that the rigidity of primitive procedure does not admit of qualified assertions (see Latte, , op. cit. 16 n. 27). Cf. also Juncker, , op. cit. 219 n.3.Google Scholar

¹⁹ Bonner and Smith I 35 n. 2. In view of this etymology, I do not see how F. D. Jevons Durham Univ. Journ. 1925 (quoted with approval by Pollock, Frederick Sir, Law Quart. Rev. 41 [1925] 376; see also his note on Maine's, Ancient Law [ed. London 1930], on p. 419), could define the istor as a stakeholder with whom the werguilt was deposited. Certainly nothing can be inferred from Schol. ad Il. 23.486 (Maas, , op. cit. 427): ἴστορα] σννθηκοϕύλακα .Google Scholar

²⁰ Dareste, R., Ann. des ét. gr. 1884 p. 94ff. See now Bonner, and Smith, I 35, also Steinwenter 34 n. 3.Google Scholar

²¹ Atti Congr. Internaz. Dir. Rom. (Pavia 1935) II 73–75.Google Scholar

²² Jolowicz, , op. cit . 72.Google Scholar

²³ Such was the opinion of Dareste, , Nouv. études d'hist. du droit (Paris 1902) 11. It now seems to have been generally abandoned; see Bonner and Smith I 35f. with bibliography.Google Scholar

²⁴ This seems to be the opinion of Jolowicz, , op. cit. 75.Google Scholar

²⁵ Authors listed by Bonner and Smith I 36, who have themselves adopted this view.Google Scholar

²⁶ Lipsius, , Leipz. Stud. 12 (1890) 231, Hirzel, R., Themis, Dike und Verwandtes (Leipzig 1907) 65 n. 6, Busolt, , op. cit. 333 n. 4, Steinwenter 36.Google Scholar

²⁷ Jolowicz, , op. cit. 73.Google Scholar

²⁸ Being a nomen agentis, ἴστωρ could not very well be used in a collective sense.Google Scholar

²⁹ Lipsius, , Leipz. Stud. 12 (1890) 230, Att. R. 4, Busolt, , op. cit. 333.Google Scholar

³⁰ Bonner, and Smith, I 40. More adherents to this theory are listed there.Google Scholar

³¹ Maine, Henry Sir, Ancient Law (ed. London 1930) 398, Hofmeister, , op. cit. 452; Leaf, W., The Iliad (2d ed. London 1902) II 612f.; Gilbert, , op. cit. 459; Glotz, G., La solidarité de la famille dans le droit criminel en Grèce (Paris 1904) 129; Bréhier, L., Rev. Hist. 84 (1904) 29; Hirzel, , op. cit. 65 n. 6, 414; Ehrenberg, , op. cit. 55 n.4; Vinogradoff, , op. cit. 348; Steinwenter 37; Hommel, H., Philol. Woch. 1928 p. 366f.; Düll, , Gütegedanke 112 n. 12; Calhoun, , Introduction to Greek Legal Science 76 (translation of our passage).—Treston's suggestion, Poine 89, that two of the elders functioned as counsels for the parties, and that the two talents were the fee for him who won the case for his client, is purely imaginary.Google Scholar

³² Against the werguilt-theory, see the reasons set forth by Bonner and Smith I 37f. which, in my opinion, are convincing. But even if the two talents were not actually so small a value as is supposed by Bonner and Smith and the authors quoted by them, the werguilt-theory must be considered most unlikely. As was stated above, the trial concerned the question whether or not the plaintiff had received a werguilt, and, as we shall see presently, it must be supposed to have grown out of an act of self-help performed by the creditor, whose right to such act was the issue to be decided upon. This decision would be of no significance, if, in case judgment was against the debtor, the result were simply the handing out of the werguilt to the creditor. In a case concerning debt, the presence in court of the sum owed would be quite unique in primitive law. Comparative legal history proves that in every primitive legal system the action based on an obligation is aimed at obtaining the right to proceed with the revenge for non-performance, not at obtaining performance of the debt.Google Scholar

³³ Leipz. Stud. 12 (1890) 229. See also Bonner and Smith I 39.Google Scholar

³⁴ Ehrenberg, , op. cit. 55 n. 4. See also Gilbert, , op. cit. 459 n. 1.Google Scholar

³⁵ See Cunliffe, R. J., A Lexicon of the Homeric Dialect (London 1924) s.v. μετά c. dat. Characteristic examples are: Il. 1.368: καὶ τὰ μὲν εὖ δάσσαντο μετὰ σϕίσιν υἶες Ἀχαιῶν, 4.37f.: μὴ τοῦτό γε νεῖκος ὀπίσσω σοὶ καὶ ἐμοὶ μέγ' ἔρισμα μετ' ἀμϕοτὲροισι γένηται (cf. Od. 3.136), 4.16: ἢ ϕιλότητα μετ' ἀμϕοτέροισι βάλωμεν (cf. Od. 24.476). Closer to the sense suggested by Lipsius are Il. 3.85; 7.66: Ἓκτωρ δὲ μετ' ἀμϕοτέροισιν ἔειπεν. But even in these passages the translation between seems to be more adequate: Hector addresses both the Achaeans and the Trojans, standing between the two armies lined up for battle. Cf. further Monro, D. B., A Grammar of the Homeric Dialect (2d ed. Oxford 1891) 177f.; R. Kühner and Gerth, B., Ausführliche Grammatik der griechischen Sprache. Satzlehre I (3rd ed. Hannover 1898) 507.Google Scholar

³⁶ Bonner and Smith I 41. Cf. also Dareste, , Nouv. ét. 8f.Google Scholar

³⁷ It is true that to the main question (to wit, whether or not the blood-fine had been paid) only two alternative answers were possible. Nevertheless the use of the singular is justified, not only because the best verdict did not have to be that of the majority, but also because among several concurring opinions the greatest applause of the people (see presently in the text above) might be accorded the one that was stated in the most appealing way.Google Scholar

³⁸ This is suggested by Hommel, , op. cit. 367.Google Scholar

³⁹ Hirzel, , op. cit. 70.Google Scholar

⁴⁰ This was suggested by Hommel and adopted by Düll, , opp. citt.; among the earlier literature, see Gilbert, , op. cit. (n. 1) 459.Google Scholar

⁴¹ Under the most ancient form of Germanic procedure, as known to us, one man or a committee chosen from among the people assembled in Ding proposed as ‘finders of the judgment’ a judgment which received its validity through acclamation by the assembly (Umstand); the people expressed their consent by clapping their weapons together. von Amira, K., Grundriss des Germanischen Rechts (3rd ed. Strassburg 1913) 255f. According to others (see Schröder, R., Lehrbuch der deutschen Rechtsgeschichte [6th ed. by von Künssberg, E., Berlin and Leipzig 1922] 47), the judgment was proposed by the presiding prince after deliberation with some of the assemblymen.Google Scholar

⁴² This has already been suggested by Maine, , op. cit. 398; Leaf, , The Iliad 613; and Weiss, E., Griechisches Privatrecht I (Leipzig 1923) 23 n. 21.Google Scholar

⁴³ Quite unacceptable is the theory that these men were compurgators (Eidhelfer), as suggested by Gilbert, , op. cit. 469 n. 1. and again, in a peculiar way, by Treston, , Poine 42f. (cf. also Haussoullier, B., Traité entre Delphes et Pellana [Bibliothèque de l'École des Hautes Études 222; Paris 1917] 60). Compurgators were not unknown to the Greeks (see Gilbert, , op. cit. 468f.; Glotz, , Solidarité 288ff.; Meister, R. M. E., Rhein. Mus. für. Philol. 63 [1908] 559ff.; Latte, , Heil. Recht 23ff.; Smith, , Admin. of Just. fr. Hes. to Sol. 59ff.; Bonner and Smith II 83, 179ff.) but, like the Germanic Eidhelfer (see Amira, , op. cit. 272f.; Schröder, , op. cit. 93) Greek compurgators, when originally and properly employed, did not swear to the facts but to the truthfulness of the oath taken by their party (Glotz, , op. cit. 289; Latte, , op. cit. 32; contra Meister, , op. cit. 579ff.; Bonner and Smith II 181). In the Homeric scene none of the parties is admitted to an oath, as was already observed by Dareste, , Nouv. ét. 5. Actually the parties do not offer any proof whatsoever, a fact which is in perfect agreement with Jolowicz's explanation of the rôle of the istor. Cf. also Glotz, , op. cit. 292f. As to Myres, J. L., The Political Ideas of the Greeks (New York and Cincinnati 1927) 200ff. who thinks that each time that ‘the people’ are referred to in the source a different group is meant, see Bonner and Smith I 34 n. 1.Google Scholar

⁴⁴ Hirzel, , op. cit. 69.Google Scholar

⁴⁵ Amira, , op. cit. 256; Schröder, and Künssberg, , op. cit. 45f. The fact that the Germanic Hegung was a solemn act essential to the constitution of a lawful Ding, while in our source the activity of the heralds obviously was limited to mere policing, does not involve a decisive argument against the comparison of the Ding with the assembly in the agora of Homer's ‘city’.Google Scholar

⁴⁶ Various reasons have been suggested (see Bonner and Smith I 34 n. 1), all in one way or another attributing to the trial an extraordinary or even sensational character, at which there is no hint in the description. Sir Frederick Pollock, an adherent to the theory that the lawsuit concerned the obligation to accept a blood-fine, goes so far as to suggest that the case may have been considered a leading precedent (Law Quart. Rev. 41 [1925] 375; 42 [1926] 2, and in Maine's, Ancient Law, p. 419f.)Google Scholar

⁴⁷ Cf. Fanta, , op. cit. (n. 13) 92, and the evidence produced by him; see also Calhoun, , Introd. to Greek Leg. Science 7.—To give an idea of the loose way in which a judgment was reached in this type of procedure, it may be interesting to quote W. von Brünneck's description of the procedure of a much more advanced system, i.e., that of the city of Frauenburg in Ermland in the fourteenth century (SZG 37 [1916] 329f.): ‘Der Richter ruft aus der Mitte der an Gerichtsstatt erschienenen dingpflichtigen Bürger einen oder den anderen, den er für geeignet hält, auf, legt ihm die zu stellenden Urteilsfragen vor und verbindet damit die Aufforderung, sie zu beantworten und so das Urteil zu finden. Wird es von dem Umstande der übrigen Dingleute gebilligt, sei es ausdrücklich mit Worten, sei es nur stillschweigend, indem ihm von keiner Seite widersprochen, noch ein Gegenurteil in Vorschlag gebracht wird, dann verkündet er das an erster Stelle gefundene oder das statt seiner von einem anderen Dingmanne vorgeschlagene andere Urteil, wenn solches gebilligt wird, als das zustande gekommene Urteil.’ Google Scholar

⁴⁸ F. Boden, SZG 24 (1903) 16f. Litigants might name whomever they pleased, with the exception of certain closely related kinsmen; Boden, , op. cit . 26. It is clear that such ‘judges’ were inclined to assume a partisan attitude.Google Scholar

⁴⁹ Amira, , op. cit. 256; Schröder, , op. cit. 400.Google Scholar

⁵⁰ The wording of the source is inconclusive, since the Homeric language permits the use of the plural when only two subjects are involved; see, e.g., verse 498.Google Scholar

⁵¹ Laurence, P. M., Journ. of Philol. 8 (1879) 128f., Bonner and Smith I 39. Cf. also Steinwenter 37 n. 2.Google Scholar

⁵² Journ. of Philol. 17 (1888) 111f.Google Scholar

⁵³ Bréhier, , Rev. Hist. 84 (1904) 29, and Bonner and Smith I 50f. accept Ridgeway's theory for the Hymn to Hermes, but not for the scene on the shield.—Some Germanic laws allowed a reward for the ‘finder’ of the judgment whose verdict was accepted by the people, the reward consisting in a portion of the penalty inflicted upon the defeated defendant; Brunner, H., Deutsche Rechtsgeschichte (Binding's Handbuch der deutschen Rechtswissenschaft II 1; 2nd ed. Leipzig 1906) I 204.Google Scholar

⁵⁴ It may be remarked that our conclusions regarding the principal features of the trial, i.e., the determination of the istor by the people with a possibly ensuing dispute between several contestants, would not necessarily have to be discarded, even if it could be proven that τοῖοι in 508 refers to the litigants, so that the two talents would have to be considered a wager or even the werguilt itself. For the rest of our statements the Germanic parallels would still furnish sufficient auxiliary evidence, in addition to what the passage itself tells us. Wager is in primitive law compatible with a type of procedure that is something more than mere voluntary arbitration.Google Scholar

⁵⁵ Hofmeister, , op. cit. 448, 450; Lipsius, , Leipz. Stud. 12 (1890) 231; Att. R. 4; Bréhier, , op. cit. 29; Croiset, A., Rev. des ét. gr. 32 (1921) 99; Ehrenberg, , op. cit. 55; Steinwenter 36; Bonner and Smith I 31, 36.Google Scholar

⁵⁶ Lautner, J. G., Die richterliche Entscheidung und die Streitbeendigung im altbabylonischen Prozessrechte (Leipziger Rechtswiss. Stud. 3; Leipzig 1922) 16f.Google Scholar

⁵⁷ Lautner, , op. cit. 20.Google Scholar

⁵⁸ Lautner, , op. cit . 12ff.Google Scholar

⁵⁹ See Pottier in DS IV 607–609 s.v. Kῆρυξ. Cf. also Phillipson, C., The International Law and Custom of Ancient Greece and Rome (London 1911) II 321. Iliad 7.274ff. shows the heralds performing their duty of separating combatants.Google Scholar

⁶⁰ This may explain why the elders held herald's sceptres when they voted (verse 505). Holding the sceptre, they had authority to speak to the people, cf. Iliad 2.278ff. 23.567f.; Hirzel, , op. cit. 75. However, Hirzel's, conclusions, p. 71, go too far.Google Scholar

⁶¹ An interesting parallel is offered by the early Norwegian law. There all the steps relating to the conduct of the trial before the Ding were taken by the parties, while the magistrate exercised only policing but not judicial functions. See Boden, F., SZG 24 (1903) 58.Google Scholar

⁶² Iliad 1.238, Od. 11.186. See Wolff, , Seminar 3 (1945) 97ff.Google Scholar

⁶³ Lautner, , op. cit. 14.Google Scholar

⁶⁴ Lautner, , op cit. 14 n. 40, 17, compares the Babylonian mode of raising a claim with the Roman in ius vocatio by way of manus iniectio, such as set forth in XII Tables 1.1 and 2. However, the difference between the Roman and the Babylonian (as well as, for that matter, the earliest Greek) systems should not be forgotten.* The Roman creditor had only the right to take his debtor to the magistrate; he could not immediately realize his debtor's liability and leave it to the debtor to seek the protection of the public authority against a possibly unlawful step of the creditor. Functionally the Roman system represents a more advanced stage, although we do not know whether it had been preceded by a system analogous to the Babylonian or developed originally when public authority first began to interfere with private action. The former would seem to be the case if Düll's theory concerning the original function of the vindex (SZR 54 [1934] 98ff.; 55 [1935] 9ff.) could be accepted; but see below, note 237.–(*See also Volterra, E., Diritto romano e diritti orientali [Bologna 1937] 169 n.1.) Google Scholar

⁶⁵ An institution built along similar lines was the assurement of the medieval French law. After a first attempt made by Charlemagne in a capitulare of 805, the institution made its appearance again in communal charters and royal ordinances of the twelfth and thirteenth centuries. It consisted in a ‘promesse solennelle, donnée devant un officier royal, seigneurial, ou municipal, de s'abstenir de toute violence envers la personne qui a requis l'assurement … En général, l'assurement était requis par la partie qui redoutait être attaquée.’ At a somewhat more advanced stage, i.e., under an ordinance by St. Louis, officials were required to impose the assurement, under certain conditions, even when it had not been requested. Breach of the promise was punished as grande traïson. The institution proved an effective instrument in the hands of the Crown in its struggle for the suppression of the system of private feuds. Its most important consequence was that it indirectly compelled quarreling parties to seek the decision of the courts. Chénon, E., Histoire générale du droit français public et privé dès origines à 1815 (Paris 1926) I 754–757.Google Scholar

⁶⁶ For another instance of Aeschylus' featuring archaic legal institutions see Balogh, E., Political Refugees in Ancient Greece (Johannesburg 1943) 42.—The value of our source is certainly not impaired by the fact that Aeschylus uses some features of the homicide trial of his own day, inasmuch as during the proceedings the first plea is made by the Erinyes, not by Orestes, and the court's verdict is final, not a proposal made to the people.Google Scholar

⁶⁷ Cf. Lipsius 245. This conclusion is also called for by the fact that Stephanus, who claimed to be the father of the ravished girl, was very anxious to have the case settled by arbitrators (sect. 68 of the speech). This is best explained by the supposition that otherwise he had to fear worse consequences than merely to be unable to collect the money promised by the plaintiff. Gerner, E., Zur Unterscheidbarkeit von Zivil- und Straftatbeständen im attischen Recht (diss. Munich 1934) 52f. denies the penal character of this γραϕή. Google Scholar

⁶⁸ Cf. Partsch, , Bürgsch. (n. 17) 15f.; Weiss, , Rhein. Ztschr. f. Zivil-und Prozessrecht 11 (1921) 14.Google Scholar

⁶⁹ Under the classical law the praetor denied the action to the plaintiff who was unwilling to proceed with such a formula as was authorized by the praetor, and granted, against a non-cooperative defendant, a missio in bona in case of an actio in personam and a missio in rem in case of an actio in rem. All these measures must have grown out of an original denial or permission of execution by way of private force. See Wolff, , Louisiana Law Review 5 (1943) 370. Cf. also Ihering, , Geist des römischen Rechts I (5th ed. Leipzig 1891) 168, 170; Koschaker, SZR 37 (1916) 356, 359; Eeseler, SZR 46 (1926) 138; Juncker, , Ged.-Schr. f. Seckel 237, 256. Unacceptable is Beseler's remark in his Beiträge zur Kritik der römischen Rechtsquellen IV (Tübingen 1920) 105; cf. Juncker, , op. cit. 204 n. 2. See also Lauterpacht, H., The Function of Law in the International Community (Oxford 1933) 424 n. 2.Google Scholar

⁷⁰ The question of the effect of the judgment is immaterial in this connection. Even if the binding force of the judgment depended on an express agreement by the parties to abide by the judgment, as is plausibly assumed for primitive laws, the public character of the litigation as assumed here remains unaltered.Google Scholar

⁷¹ No answer is possible as to whether the istor-procedure was the only one in use or might alternate with others; and, in the latter case, whether the choice between several possible procedures was with the parties or whether customary law determined for each case the procedure to be followed.Google Scholar

⁷² See above, note 69. The same principle prevailed in the Germanic sphere; see, e.g., with respect to Anglo-Saxon law, Eechert, R., SZG 47 (1927) 41, 51.Google Scholar

⁷³ SZR 36 (1915) 359; 38 (1917) 314; see also Weiss, , Griech. Privatr. 457.Google Scholar

⁷⁴ For the details of this evolution see Weiss, , Griech. Privatr. 456ff.Google Scholar

⁷⁵ See Weiss, , Rhein. Ztschr. f. Zivil- und Prozessrecht 11 (1921) 1ff. and Griech. Privatr. 495ff. In the latter place find a bibliography.Google Scholar

⁷⁶ See also Gernet, , Archives d'hist. du droit orient. 1 (1937) 133. The same idea was, as we have seen, also a characteristic of early Roman procedure (see Koschaker, , SZR 37 [1916] 356) and is, perhaps, a universal phenomenon (see, e.g., with respect to early Norwegian law, Boden, , SZG 24 [1903] 55; ethnological examples can be found in Marett's, R. R. Anthropology [Home University of Modern Knowledge 37; New York and London without year] 193f.). It makes no difference whether (as in Babylonia, the Homeric ‘city’, and medieval France) the judicial decision, on which the progress of a self-help execution depended, was forced upon the creditor through the protection granted to the victim of his attack, or whether (as in later Greek law or under the Roman law of the XII Tables) the claimant might take pre-judicial steps of self-help only for the purpose of bringing his adversary to court. Nor can a fundamental difference be found in the fact that Germanic laws made the execution dependent on the further requirement of the defendant's outlawry to be pronounced by the Ding if he had failed to pay the penalty due by virtue of the judgment. In the Germanic sphere, too, as shown by Beyerle, , Entwicklungsproblem (n. 7) 234ff., judicial litigation for private fines grew out of the public desire to suppress private feuds, while outlawry was the reaction of the community to crimes committed against itself. The same principle governed the Greek law of outlawry; see H. Swoboda, SZR 26 (1905) 175. The two systems differed only in so far as the Germanic law considered the judicial procedure primarily as a means to settle the feud (Beyerle, , op. cit. 234), while in the Greek and Roman conception it was a means to bring the right to the feud under public control. This caused the Germanic law to treat the failure to fulfil the duty undertaken in the peace agreement—which in the primitive period had to be concluded after the judgment was rendered—as a breach of the public peace, with the malfeasor's exclusion from the peace of the community as its sanction. Greek and Roman law, from their point of departure, did not have to go to such lengths. Neither with reference to Greek law nor with reference to any other historical law, however, can Gernet's notion, expressed on p. 118 op. cit., be accepted. He says that the judgment is ‘un traité de paix formulé par un tiers conformément aux règies d'une joute’ (italics mine). The judgment is rather, so to speak, a statement of the right to go to war. See also below, note 207.Google Scholar

⁷⁷ See Wolff, , Transact. Amer. Philol. Assoc. 72 (1941) 426ff.Google Scholar

^77a Cf. with regard to early Roman law, De Visscher, F., Etudes de Droit Romain (Paris 1931) 266f., also Carrelli, E., Annali della Facoltà Giuridica della R. Università di Bari, N.S.2 (1939) 118. See also below, note 86.Google Scholar

⁷⁸ Wolff, , op. cit. 427, with more authors listed there in note 31.Google Scholar

⁷⁹ Rabel, , SZR 36 (1915) 340ff.Google Scholar

⁸⁰ Steinwenter, 45.Google Scholar

⁸¹ Maschke, R., Die Willenslehre im griechischen Recht (Berlin 1926) 42, 51.Google Scholar

⁸² Wolff, , op. cit. 423f.Google Scholar

⁸³ Amer. Journ. of Philol. 64 (1943) 316–324.Google Scholar

⁸⁴ ‘And they also seek an arbitrator who will adjudicate the premises to them, and such settlements as will let them have the premises.’ See Wolff, , Am. Journ. of Philol. cit. 318f., as to why this statement admits of the inference drawn above, although it does not immediately concern the lawsuit in which the speech was delivered.Google Scholar

⁸⁵ Partsch, , Aus nachgelassenen und kleineren verstreuten Schriften (Berlin 1931) 348; SZR 43 (1922) 578.Google Scholar

⁸⁶ According to the prevailing and, in my opinion, correct theory, the summa condemnationis of the Roman law also originated in the ‘price of absolution, of a person liable under an obligation, from enslavement, which originally resulted from non-performance of the obligation.’ See Wenger, , Institutes 144 n. 19, where the literature is listed.Google Scholar

⁸⁷ Mitteis, L., Reichsrechi und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs (Leipzig 1891) 501f. See also Gernet, , op. cit. 127–129.Google Scholar

⁸⁸ See Rabel, SZR 36 (1915) 342 n. 2; Gernet, , op. cit. 129 n. 2; cf. also 132 n. 1.Google Scholar

⁸⁹ The function of the δίκη ἐξούλης as a delictual action for the protection of lawful self-help has been demonstrated by Rabel in his article just quoted; see also his paper, SZR 38 (1917) 296–317, where he dealt with objections raised by Lipsius, SZR 37 (1916) 1–14. See further Paoli, , Studi Albertoni II 314 n.4, 330f.; Kaser, , SZR 64 (1944) 191ff.Google Scholar

⁹⁰ The fact that more advanced systems, such as that of the Ptolemaic monarchy, replaced private seizure by an official induction into the premises, makes no difference as to the principle.Google Scholar

⁹¹ Exception to Partsch's theory was already taken by Weiss, , Griech. Privatr. 493 n. 142, on the ground that it is incompatible with certain provisions found in treaties between Greek cities regarding mutual legal protection for their respective citizens.Google Scholar

⁹² See SIG (3rd ed.) I 471 (SGDI III 1, 3025, Rec. des Inscr. Jur. Gr. nr. 16 p. 342ff.) lines 6f.: καὶ ἐπελθόντων ἐπ' αὐτὰν τὰν χώραν τῶν δικαστᾶν καὶ κρινάν[των] Ἐπιδαυρίων εἶμεν τὰν χώραν; SIG II 599 (SGDI III 1, 3758), line 157: [δια]κρίνομεν τὸ ϕρούριον καὶ τὰν περὶ τὸ ϕρούριον χώραν εἴµειν Πριανέων. Of the same type is a judgment rendered by the Argives in a dispute between Melos and Cimolus over title to some ships, SGDI III 1, 3277. See also below, note 95, i.f .Google Scholar

⁹³ Partsch, J., Die Schriftformel im römischen Provinzialprozesse (Breslau 1905) 4, who quotes earlier literature.Google Scholar

⁹⁴ Cf. Taubenschlag, R., SZR 55 (1935) 282f.—Mention may be made also of the fourth-century inscription of the Clytides of Chios (last edited by K. Latte, SZR 53 [1933] 509) which is an instance of a transfer of landed property in the form of a judicial procedure; see Kunkel's, W. comment, ibid. 510–13. The acquirer claims, line 10: [τὰ ἑπό]μενα τῆι γῆι πάντα ἐστιν ἐμά, and in line 24 the adjudication follows: κατεδίκασεν .Google Scholar

⁹⁵ P. Par 15 (UPZ II 161) lines 68f.; P. Tor I (Mitteis, , Chrest. 31) col. X 1ff. It is true that Hermias seems to have sought administrative aid in the recovery of his lost possession rather than a judicial establishment of his title; see Schönbauer, E., Beiträge zur Geschichte des Liegenschaftsrechts im Altertum (Graz 1924) 33ff.; also Wilcken, U., Urk. der Ptolemäerzeit II p. 45f. Nevertheless the case is at least very closely related to a controversy over the title. Greek law apparently never arrived at such a clear distinction between title and possession as did the Roman law. Every suit for property merely concerned the question who of the parties had the better claim to hold it (see Rabel, , SZR 36.341f.; also Taubenschlag, , op. cit. 279; Paoli, , Studi Albertoni II 313f.) and it did not make much difference whether this claim was based on a true title or, as in the case of Hermias (see Schönbauer, , op. cit. 34), merely on royal ordinances assuring the enjoyment of a possession undisturbedly held for a certain length of time. In the almost contemporaneous UPZ II 170, presently to be cited in the text, the action also resulted from a forcible ejectment, but the plaintiff, Apollonius, clearly sought a judicial statement that the title belonged to him. The reason was perhaps that he filed his suit with the ordinary court of the chrematistae, while Hermias approached only administrative officials. I suggest to explain this difference by the observation that Apollonius expected to be able to prove his title (UPZ II 170^B, line 40 in connection with lines 16ff.); Hermias was in a less favorable position, as Schönbauer has pointed out.Google Scholar

This character of the Greek controversy over titles, in connection with the form of the sentence, also seems to offer an explanation for the fact (pointed out by Partsch, , Schriftformel 16ff., 25, 45) that the Roman Senate, when called upon to arrange an arbitration between Greek cities quarreling over land, used the formula of the interdictum uti possidetis; see SIG II 679, 683, 685.Google Scholar

⁹⁶ As to this document, cf. Taubenschlag, , op. cit. 280 n. 1, 282 n. 2.Google Scholar

⁹⁷ There is no agreement regarding P. Amh II 30. The editors and Wenger (Arch. f. Papyr. 2.44 n. 1) held that the text records a judgment of the chrematistae; this is still tentatively maintained by Hellebrand, W., Das Prozesszeugnis im Rechte der gräko-ägyptischen Papyri (Münchner Beiträge zur Papyrusforschung und antiken Rechtsgeschichte 18; Munich 1934) 18. For an administrative decree: Taubenschlag, R., Arch. f. Papyr. 4.30 n. 1; Zucker, F., Beiträge zur Kenntnis der Gerichtsorganisation im ptolemäischen und römischen Aegypten (Philologus Suppl. 12; Munich 1911) 104f.; Wilcken, , Urk. d. Ptol. II p.46 n.1 In view of the plural, I am inclined to the opinion that we have to do with the judgment of some court rather than with a mere administrative decree. Administrative coercion in the Ptolemaic kingdom was usually applied by individual officials, not by boards. The concilium which the official might have with him did not participate in issuing the decree, as shown by P. Sammelb I 4512, line 83.—Generally, cf. Taubenschlag, , The Law of Greco-Roman Egypt in the Light of the Papyri (New York 1944) 188 n. 1, also his article, SZR 55 (1935) 278ff.Google Scholar

⁹⁸ This may explain the frequent inclusion in the sentence of an order to vacate the premises; see Wilcken, , op. cit. See also P. Ent. 9. This would be in line with the order of specific performance that seems to have been a characteristic of decrees issued by Ptolemaic administrative officials in cases concerning debts; see Wolff, , Transact. Amer. Philol. Assoc. 72 (1941) 432 n. 46.Google Scholar

⁹⁹ op. cit. 424.Google Scholar

¹⁰⁰ Wolff, , op. cit. 427.Google Scholar

¹⁰¹ The five talents must be the penalty for the trespass, since Apollonius reserves a separate action for hybris .Google Scholar

¹⁰² Bücheler, F. and Zitelmann, E., Das Recht von Gortyn (Rhein. Mus.f. Philol. 40, Suppl.; Frankfurt 1885) 92; Swoboda, H., SZR 26 (1905) 204 n.3; Kohler, J. and Ziebarth, E., Das Stadtrecht von Gortyn und seine Beziehungen zum gemeingriechischen Rechte (Göttingen 1912) 85; Weiss, , Griech. Privatr. 493 n. 142.Google Scholar

¹⁰³ See Wenger, , Institutes 147ff.Google Scholar

¹⁰⁴ The terms used are δικάδδεν (I 20) and κρίνον (I 23).Google Scholar

¹⁰⁵ I 56 is read by Bücheler, and Zitelmann, , op. cit. 19: [τὸ]ν δὲ νενικαμὲνο, by more recent editors (Dareste, Haussoullier, Reinach, , Rec. des Inscr. Jur. Gr. I p. 358; Kohler, and Ziebarth, p. 19): [τὸ]ν δὲ νενικαμὲνο[ν]. Even if the latter reading is correct, I do not think that the νικᾶν is the defeated opponent. In the legal terminology of the Gortynian inscriptions the object of κατακείμενος can be the thing adjudicated (in SGDI III 2, 4986, Kohler, and Ziebarth, p. 36 translate it, following Meister, R. M. E., Rhein. Mus. f. Philol. 63.570 n. 4, by ersiegen; see also Law of Gortyn I 28); in this sense the term should be understood here, too. Proof is the parallelism with κατακείμενος which denotes a slave pledged for a debt (see SGDI III 2, 4998, the so-called second code of Gortyn, , Rec. I 18 p. 393ff., and the inscription edited as no. 3 by Kohler, and Ziebarth, , op. cit. 34). Dareste, , Haussoullier, , and Reinach, , op. cit. 450, consider the ἐν δὲ δύω ποίησε πόλεις ‘un individu qui a engagé sa personne, comme garantie d'une dette.’ Google Scholar

¹⁰⁶ Cf. Rabel, , SZR 36 (1915) 380; also Kaser, , SZR 64 (1944) 205 n. 217.Google Scholar

¹⁰⁷ Dareste, , Haussoullier, , Reinach, , op. cit. 443.Google Scholar

¹⁰⁸ Mitteis, , Reichsr. u. Volksr. 416 n. 3; Wolff, , Transact. Amer. Philol. Ass. 72 (1941) 428 (where Mitteis' statement had escaped me).Google Scholar

¹⁰⁹ Rabel, , ov. cit. 374ff.Google Scholar

¹¹⁰ SZR 37 (1916) 3f.Google Scholar

¹¹¹ SZR 38 (1917) 298; cf. Weiss, , Griech. Privatr. 461.Google Scholar

¹¹² For the legal implication of this term, see below, sub II 3.Google Scholar

¹¹³ It is quite analogous to this scene when the Erinyes continue to persecute Orestes after he has refused to take the oath which they tendered to him (see Aeschyl. Eumen. 432). There, too, the oath is part of the self-help procedure.Google Scholar

¹¹⁴ Translation by Rackham, H., Loeb Edition.Google Scholar

¹¹⁵ Cic. De re publ. 5.2.3.; Dion. Hal. 4.25.2; 4.36.2; 10.1.2; Pompon. Dig. 1.2.2.1. As their unreliability, see E. Levy, SZR 46 (1926) 369ff. and authors quoted there; also] Schönbauer, SZR 47 (1927) 284; Jolowicz, , op. cit. (see note 21) 60ff.; Historical Introduction to the Study of Roman Law (2nd ed. Cambridge 1939) 180 n. 4. Wenger, , Festschrift Hanausek 8f.; Institutes 24f. on the other hand, does give some credit to these sources. He conside the bipartition of the lawsuit as an innovation brought about by the more democratic spirit prevailing after the establishment of the republic. He suggests that there was fusion of the original ‘full jurisdiction’ of the king and a custom of seeking private arbitration. The two he believes to have existed side by side at least under the Etruscan monarchy. As to Wenger's opinion, see my review of his Institutes in Louisiana Law Review 5 (1943) 367ff. Düll, R., SZR 56 (1936) 1ff. finds the origin of the divided procedure in the right of provocatio, which he believes was granted against authoritative pronouncement of the magistrates by the ‘Servian constitution’, following the example of Solon's procedure innovations (Düll pp. 16, 23, 24). But there never was such an original parallelism as Düll assumes between the provocatio in criminal procedure and the provocatio mentioned by some sources in connection with litigation between private parties. Düll's own list of instance for the latter (p. 3) clearly shows that the provocatio was addressed to the adversary, be never to the magistrate; decisive is the use of provoco in the ritual of the legis actio sacre mento in rem (Gai. Inst. 4.16), i.e., a formula going back into the remote past. The occurrence of absolvere in civil procedure formulas is not to be explained as indicating an original acquittance from a condemnation pronounced by the magistrate (thus Düll 22), but as a residue of the function of judicial litigation within the primitive system of controlled self-help.—At Rome civil procedure apparently evolved in a manner very analogous to that which is suggested here for Greece. Cf. also Koschaker, , SZR 37 (1916) 356.Google Scholar

¹¹⁶ Judicial powers of the Homeric king are denied by Fanta, A., Der Staat in der Ilias und Odyssee (Innsbruck 1882) 58; Bréhier, , Rev. histor. 84.30; 85.21. Westrup, , Mél. Fournier 774 n. 46, also seems to doubt them. Arbitration by the king is suggested by Lipsius 5; Steinwenter 29ff.; Bonner and Smith I 4. In the following, a similar, somewhat modified view will be set forth.Google Scholar

¹¹⁷ Works and Days 9, 263.Google Scholar

¹¹⁸ Bonner, , Class. Philol. 7 (1912) 17; see also Smith, , Adm. of Just. fr. Hes. to Sol. 9; Bonner and Smith I 46f.Google Scholar

¹¹⁹ Heil. Recht 39 n. 2.Google Scholar

¹²⁰ pp. 38ff.Google Scholar

¹²¹ Bonner, and Smith, I 48; Class. Philol. 40 (1945) 11.Google Scholar

¹²² Ehrenberg, , Rechtsidee (see note 1) 70, considers these verses an interpolation cause by Hes. W. and D. 221, while Wilamowitz, , Hesiodos Erga (Berlin 1928) 66, argues strongl for their authenticity. For our purpose the question is immaterial.Google Scholar

¹²³ op. cit. 6ff. See Iliad 1.238f.; 2.240ff.; 9.98f. Ehrenberg 13 suggests an oriental origi of this religious foundation of the royal power.Google Scholar

¹²⁴ op. cit. 10ff.; 17.Google Scholar

¹²⁵ op. cit. 18.Google Scholar

¹²⁶ viz. the sceptre.Google Scholar

^126a See Wolff, , Seminar 3 (1945) 97ff.Google Scholar

¹²⁷ Translation by Bigge-Wither, L. (Oxford and London 1869) p. 197.—Cf. also Hes. W. and D. 225ff. 260ff.; Theog. 434.Google Scholar

^127a Cf. Maine, , Ancient Law (4th Amer. ed.) 8.Google Scholar

¹²⁸ Bonner, and Smith, I 48.Google Scholar

¹²⁹ op. cit. 41.Google Scholar

¹³⁰ Cf. Ehrenberg, , Journ. Hellen. Stud. 57 (1937) 155.Google Scholar

¹³¹ Il. 18.490: πόλις. I do not, of course, pretend that this ‘city’ was anything like the classical polis. But the trial scene is evidence that it was a free community enjoying some sort of political organization. Therefore no objection should be raised on the ground that Hes. W. and D. 227 also uses the term καὶ μή τινα τοῦτον καταδωλώ[θαι αἴ τ' ὑπὸ τιτᾶν σνλ]οῖτο τὸν κσένιον κόσμον μὴ λαγαῖεν, although there the poet obviously envisages the patriarchal community to which he was accustomed.Google Scholar

¹³² See Steinwenter, 49.Google Scholar

¹³³ This circumstance seems to deserve more attention by those who deal with the general problem of the character of Homeric society, on which opinions differ so widely; see Calhoun, G. M., Class. Phil. 29 (1934) 193 n. 2. Calhoun's own theory (‘Classes and Masses in Homer,’ Class. Phil. 29.192–208, 301–16) that in the epic there is no evidence of the existence of an aristocratic class distinguished by birth, is very interesting, although it seems to me somewhat too sweeping; but I am not competent to judge on the matter. At any rate, it is compatible with the above statements. Calhoun himself (p. 304) notes the pre-eminent position of the king.Google Scholar

¹³⁴ For example: Smith, , Adm. of Just. fr. Hes. to Sol. 22, 27; Bonner, and Smith, I 283.Google Scholar

¹³⁵ Traité entre Delphes et Pellana (Biblioth. de l'Éc. des Hautes Ét. 222; Paris 1917). The text is also found in Partsch's review of Haussoullier's book, SZR 43 (1922) 578ff. For the date of the inscription, sec Haussoullier 170f.Google Scholar

¹³⁶ Haussoullier, , op. cit. 8, 55–59.Google Scholar

¹³⁷ Partsch, , op. cit. 578; Aus nachgelassenen und kleineren verstreuten Schriften (Berlin 1931) 348, 352.Google Scholar

¹³⁸ Haussoullier, , op. cit. 150.Google Scholar

¹³⁹ Haussoullier, , op. cit. 148f.Google Scholar

¹⁴⁰ Haussoullier, . op. cit. 76.Google Scholar

¹⁴¹ Cf. Smith, , op. cit. 29.Google Scholar

¹⁴² Smith, , op. cit. 32 n. 4.Google Scholar

¹⁴³ Dareste, , Haussoullier, , Reinach, , Recueil I 429f.; Kohler, and Ziebarth, , Stadtrecht von Gortyn 81; Smith, , op. cit. 25, 28; Steinwenter 43ff.; Düll, , Gütegedanke 113; Bonner and Smith I 87.Google Scholar

¹⁴⁴ Comparetti, D., Le leggi di Gortyna e le altre iscrizioni arcaiche Cretesi (Mon. ant pubbl. per cura della R. Acc. dei Lincei 3; Milan 1893) p. 73 n. 148, and the editors of the Recueil, p. 403, read lines 3f. as follows: καταδωλῶ[θαι μήτε σνλέν. αἰ συλί]οιτο, translated in the Recueil: ‘Nul ne pourra les réduire en servitude. Si pareilfait se produit et que les garants de l'affranchi le reprennent par force, le cosme des étrangers ne le fera pas rendre.’ F. Blass, SGDI III 2, p. 255, suggests this supplement to the lacuna: μητε—(μήτε—), and he comments: 'die Scheidung zwischen λαγαῖεν = ἐπιτρέπειν muss doch besagt haben: weder die Person antasten noch das Geld; denn von Geld ist Z.6 die Rede. Ich fasse λαγαῖεν, zulassen.' In my opinion, the text and interpretation of the Italian and French editors should be preferred. They maintain the common meaning of τιταί, which is to cease, to stop. Blass' objection that in their reading the task assigned to the kosmos remains obscure falls apart, as soon as the official is no longer considered to be a judge and his function understood in such a fashion as suggested here. The money mentioned in line 6 is the price paid by the freedman for his manumission; the warranters (κατιστάμεν) had to pay the double amount, in addition to a legal penalty of 100 staters (line 5; here Comparetti's supplement ἐστείσαθαι is preferable to Blass' καταδωλῶ[θαι μήτε συλῆν.αἰ δ'ἀδικί]οιτο), if they failed to come to his rescue. Lines 3f., then, mean that the kosmos shall not interfere with the warranters who seek to rescue the freedman by force. This is hardly in conflict with the prohibition of self-help as ruled by Law of Gortyn I 1f., which obviously is aimed only against the person who claims another as his slave. Lipsius, , Abhandl. Sächs. Ges. der Wiss., Phil.-Hist. Kl. 27ii (1910) 399 n. 2, reads: τιταί and agrees with Blass as to the interpretation of the inscription. But his supposition that the αἰ δἐ [μὴ λέ]οιεν were a hoard of officials concerned with financial matters (op. cit. 406f.) is not convincing. The clause τιταί (lines 4f.) is understandable only if it is meant to indicate an unwillingness of the ὁ δικαστής to comply with their duty of warranty.Google Scholar

¹⁴⁵ See the preceding note.Google Scholar

¹⁴⁶ Cf. Recueil, p. 475 n. 1.Google Scholar

¹⁴⁷ The fact that the courts provided for by the treaty are to consist of several judges, while the codification always speaks of συνδι[κ]αξεῖ δὲ ὁ ἱεροταμίας μετὰ [τ]ῶν ἀρχόντων τὰς δίκας, ἃς [τ]οὶ ἄρχοντες δικάζοντι, καὶ [κ]λαρωσῖ τὰ δικαστήρια, ἅ κα δέη κλαρώειν μετὰ {τα}τῶν ἀρχόντων, constitutes no argument for the contrary.Google Scholar

¹⁴⁸ Therefore Zitelmann's statement (Eücheler, and Zitelmann, , Das Recht von Gortyn 68) that there is no trace of a division of the suit analogous to the Roman bipartition should be revised.Google Scholar

¹⁴⁹ Dareste, , Haussoullier, , Reinach, , op. cit. 400, 430; Lipsius, , Abhandl. cit. 405; Smith, , op. cit. 30; Steinwenter 43f.Google Scholar

¹⁵⁰ The term does not occur in Cretan inscriptions.Google Scholar

¹⁵¹ Cf. Wenger, , Institutes 26, 138.Google Scholar

¹⁵² See the provisions for execution by officials and the prohibition of self-help, lines 73ff. 94ff.Google Scholar

¹⁵³ In view of the late date of the treaty, such could be the meaning of the provision in the sympolity between Stiris and Medeon, SGDI II 1539 (after 181 B.C.), lines 28–34: προδικασίαι. Google Scholar

¹⁵⁴ It corresponds to the three εασιλεύς conducted by the Ἀνάκρισις in homicide cases; Bonner, and Smith, I 290.Google Scholar

¹⁵⁵ op. cit. I 283–293; see also Bonner, , Evidence in Athenian Courts (Chicago 1905) 48ff. and Dorjahn, A. P., Transact. Amer. Philol. Assoc. 66 (1935) 275f.; Class. Philol. 46 (1941) 182–185.Google Scholar

¹⁵⁶ See, e.g., Lipsius, , Att. Recht 829–844.Google Scholar

¹⁵⁷ op. cit. I 283, also p. 7.Google Scholar

¹⁶⁸ Class. Philol. 36 (1941) 185.Google Scholar

¹⁵⁹ In the earlier literature I find only a vague hint at this parallel in Vinogradoff's Outlines II 145. Recently, and with somewhat more detail, Gernet, , Rev. des ét. gr. 52 (1939) 409f.Google Scholar

¹⁶⁰ Steinwenter 60ff.—Koschaker, SZR 47 (1927) 511f. suggests that the reason for the introduction of the obligatory diaita should perhaps be sought in a widespread distrust in the popular courts. Popular reaction to the methods of administering justice is doubtless a subject worth investigating (some facts were gathered by Bonner and Smith II 298ff.), but I doubt if an obligatory arbitration—which, moreover, was anyway subject to reexamination by the dicastery whenever one of the parties so wanted it—could have been the proper means to dispel any misgivings as to the court's ability to dispense true justice. Against Koschaker also Hommel, H., Philol. Wochenschr. 1928.363; Huwardas, St. G., Ztschr. f. vgl. Rechtswiss. 49 (1934) 334. For another possible explanation see Harrell, H. C., Public Arbitration in Athenian Law (University of Missoury Studies 11, i; 1936) 4.Google Scholar

¹⁶¹ Cf. Wolff, , Louisiana Law Rev. 5 (1943) 370. The reader will remember that an interesting Greek parallel to this feature of the Roman law of procedure is furnished by the treaty between Delphi and Pellana; cf. Partsch, , Schriften 348.Google Scholar

¹⁶² Thalheim, , PWK I 2050 s.v. ἐπιδικάζειν. Google Scholar

¹⁶³ See Paoli, U. E., Studi sul processo attico (Studi di Diritto Processuale, ed. Calamandrei, P., 2; Padua 1933) 83.Google Scholar

¹⁶⁴ See Paoli, , op. cit. 99, Bonner, and Smith, II 75 n. 2 and authors quoted there. Paoli (especially pp. 104–116) seeks to demonstrate, against the opinion of philological students, that a paragraphe did not have the effect of splitting up the suit into two separate trials held before different panels of judges, one dealing with the exception, and the other with the merits of the case, but was voted upon incidentally by the court that tried the latter. This would fit in well with the theory suggested here with respect to the anakrisis. Some doubts regarding Paoli's conclusions were raised by Steinwenter, SZR 54 (1934) 383–385, to be sure.Google Scholar

¹⁶⁵ Note that the Roman exceptio, too, seems to have grown out of the denegatio actionis; see Wenger, , Institutes 136 n. 8, also Costa, E., Profilo storico del processo civile romano (Rome 1918) 31 n. 2, where the literature is listed.Google Scholar

¹⁶⁶ Descendents might take possession of the inheritance forthwith, because their right was manifest; see Rabel, , SZR 36 (1915) 376.Google Scholar

¹⁶⁷ Therefore Lipsius' expression (p. 949 n. 29), used with respect to Demosth. 48.27, is incorrect: ‘denen das Erbe gerichtlich zugesprochen war’ (italics mine). Gernet, , Arch. d'hist. du droit orient. 1 (1937) 125 n. 1, 127, suggests that the ἐπιδικάζειν involved a summary examination and judgment by the court, but this conclusion is not, in my opinion, called forth by Isae. 3.43, to which he refers (this general objection also arises against Gernet's, remarks, ibid. 2 [1938] 287). Nor is there any foundation for the hypothesis, advanced by Lipsius 581, that the archon had to issue the Ἐπίδικος-decree in the presence of the court.Google Scholar

¹⁶⁸ For the details see Beauchet, L., Histoire du droit privé de la République Athénienne (Paris 1897) I 439ff. III 600ff.; Lipsius 577ff.; Thalheim, PWK VI 58 s.v. ἐπιδικαζειν .Google Scholar

¹⁶⁹ In the same line of thought as the κατακυροῦν was the ἢ [βουλεύσεως τὸν ἀεὶ βασι]λεύσαντα by which the archons confirmed the title of a buyer of goods sold in public auction; see Arist. Const. of Ath. 47.2. Partsch, , Festschrift für Otto Lenel zum fünfzigjährigen Doctorjubiläum (Leipzig 1921) 103, has pointed out the analogy of this act to the Friedewirken under the laws of medieval German cities.Google Scholar

¹⁷⁰ The power of the Eleven and of the Forty to make an immediate adjudication in suits concerning trifles (Arist. Const, of Ath. 52.3; 53.1) may originate in it.Google Scholar

¹⁷¹ SIG (3rd ed.) I 111. More editions are listed, and a bibliography is given, by Bonner and Smith I 111 n. 3, who also print the text on p. 112f. Add to their bibliography: Gernet, , Recherches sur le développement de la pensée juridique et morale en Grèce (Paris 1917) 463f.Google Scholar

¹⁷² Hermes 2 (1867) 31.Google Scholar

¹⁷³ Index Scholarum Gottingensium 1873–1874, p. 7.Google Scholar

¹⁷⁴ For a translation see below, note 181 and p. 73.Google Scholar

¹⁷⁵ The earlier supplement: μὴ βονλεύσαντα, which is untenable for linguistic reasons (Dittenberger, , Syll. I p. 148 n. 8), need no longer be discussed. Quite impossible is the interpretation given by Treston, , Poine (London 1923) 195, who suggests to read ὡς βουλεύσαντα instead of (ϕεύγειν), and translates: ‘And if a man slays a man not with intent (to kill), let him be put on trial (μὴ βονλεύσαντα), and let the “Kings” judge of the causes of death, or, if anyone accuses a person of slaying without deliberation ϕεύγειν, let the Ephetae adjudicate.’ Treston misunderstands the meaning which δικάζειν and διαγρῶναι has in this passage, as he also unjustly denies any difference between [ἐάν τιν'—or τις—αἰτιᾶται ώς—or τὸν—βον]λεύσαντα (p. 194).—A. Ledl's supplement (Wien. Stud. 33 [1911] 35): εουλεύειν, rests on an obsolete interpretation of προδικασίαι. The meaning of this term has been elucidated by Maschke; see below, note 185.Google Scholar

¹⁷⁶ See Bonner, and Smith, I 117 and the authors quoted by them, p. 116 n. 6. I cannot, however, agree with their suggestion, p. 117, of an early judicial function of the phylobasileis .Google Scholar

¹⁷⁷ Such is the opinion of Lipsius 18 and Ledl, , op. cit . 35.Google Scholar

¹⁷⁸ Maschke, R., Die Willenslehre im griechischen Recht 47f.Google Scholar

¹⁷⁹ Wilamowitz, , Hermes 22 (1886) 196, Ledl, , op. cit. 3, Bonner and Smith I 116.Google Scholar

¹⁸⁰ The sources do not admit of a definite conclusion as to the principle employed in bringing the case before one court or another when plaintiff and defendant disagreed on the qualification of the homicide. The instances known from a number of orations (see Wilamowitz, , op. cit. 196 n. 1) rather speak in favor of a wide discretionary power of the basileus who pre-examined the case in three αἴτ[ι]ο[ν] ϕό[νο], ἒ [ἐάν ἄκων κτένει τιν' ἒ βου]λεύσαντα (Antiph. 6.42; Pollux 8.117). Ledl's, (op. cit. 2ff.) and Lipsius', (pp. 26, 132) view that the qualification offered by the defendant practically determined the court is not convincing. Gernet, , Pensée juridique 464, believes that the ephetae had to make this decision.Google Scholar

¹⁸¹ In their translation: ‘If anyone kills a man without premeditation or if anyone is charged with plotting homicide, he shall be exiled …,’ Bonner and Smith I 113 tacitly shift the clause to where it should be according to their interpretation. In a similar sense Lipsius 612 n. 46.Google Scholar

¹⁸² op. cit. 48ff.Google Scholar

¹⁸³ Maschke, , op. cit. 49, is inclined to assume a Draconian expansion of an even earlier law.Google Scholar

¹⁸⁴ Keil, B., Anonymus Argentoratensis (Strassburg 1902) 228 proposes: αἴτ[ι]ο[ν] ϕό[νο] ἒ [χερὶ ἐργασάμενον ἒ βου]λεύσαντα.; this was justly criticized by Lipsius 612 n. 46 and Maschke, , op. cit. 47 n. 3. Paoli, , op. cit. 132 n. 1, reads: δικάζειν. This is tantamount to the supplement suggested here, but Paoli's version is unacceptable for linguistic reasons, as it omits the article. Paoli, furthermore, does not correctly render the meaning of βουλεύσεως when he translates: ‘i re giudichino il reo di omicidio.; gli efeti pronunzino su ciò il verdetto.’ As early as 1886, Passow, W., De crimine αἰτ[ί]ο[ι] ϕό[νο] ἒ [χερὶ ἀποκτέναντι ἒ βου]λεύσαντ<ι>; (Göttingen) 36; suggested: as to this, see Keil, , op. cit. 228 n. 1. Gernet, , Pensée juridique 463, proposes a reading similar to Passow's. Maschke, , op. cit. 47, 50, also questions the accentuation ἐὰν δὲ αὐτόχειρ μὲν μή, βουλεύση δὲ θάνατόν τις ἄλλος, p. 872B: εἴτε αὐτόχειρ εἴτε βουλεύσας .; (Göttingen) 36; suggested: as to this, see Keil, , op. cit. 228 n. 1. Gernet, , Pensée juridique 463, proposes a reading similar to Passow's. Maschke, , op. cit. 47, 50, also questions the accentuation ἐὰν δὲ αὐτόχειρ μὲν μή, βουλεύση δὲ θάνατόν τις ἄλλος, p. 872B: εἴτε αὐτόχειρ εἴτε βουλεύσας .' href=https://scholar.google.com/scholar?q=Keil,+B.,+Anonymus+Argentoratensis+(Strassburg+1902)+228+proposes:+αἴτ[ι]ο[ν]+ϕό[νο]+ἒ+[χερὶ+ἐργασάμενον+ἒ+βου]λεύσαντα.;+this+was+justly+criticized+by+Lipsius+612+n.+46+and+Maschke,+,+op.+cit.+47+n.+3.+Paoli,+,+op.+cit.+132+n.+1,+reads:+δικάζειν.+This+is+tantamount+to+the+supplement+suggested+here,+but+Paoli's+version+is+unacceptable+for+linguistic+reasons,+as+it+omits+the+article.+Paoli,+furthermore,+does+not+correctly+render+the+meaning+of+βουλεύσεως+when+he+translates:+‘i+re+giudichino+il+reo+di+omicidio.;+gli+efeti+pronunzino+su+ciò+il+verdetto.’+As+early+as+1886,+Passow,+W.,+De+crimine+αἰτ[ί]ο[ι]+ϕό[νο]+ἒ+[χερὶ+ἀποκτέναντι+ἒ+βου]λεύσαντ<ι>;+(Göttingen)+36;+suggested:+as+to+this,+see+Keil,+,+op.+cit.+228+n.+1.+Gernet,+,+Pensée+juridique+463,+proposes+a+reading+similar+to+Passow's.+Maschke,+,+op.+cit.+47,+50,+also+questions+the+accentuation+ἐὰν+δὲ+αὐτόχειρ+μὲν+μή,+βουλεύση+δὲ+θάνατόν+τις+ἄλλος,+p.+872B:+εἴτε+αὐτόχειρ+εἴτε+βουλεύσας+.>Google Scholar

¹⁸⁵ op. cit. 79, 83, 83ff. See also Kunkel, W., SZR 48 (1928) 716.Google Scholar

¹⁸⁶ For the wording cf. Plato, , Laws p. 872A: αἴτιος. Ledl's.(op. cit. 11f.) conclusion that μὴ αὐτόχειρ, when used technically, denotes only one who caused the death of a person is not sufficiently supported by lines 26f. of our inscription: οὐ γὰρ αἴτιοι τοῦ ϕόνου ἐσμέν (the supplement rests on Demosth. 23.57). The closing words of Antiph. Tetr. 2δ: Aἴτιος are no less technical, although the son of the speaker is supposed to have been charged with having killed another boy by throwing a spear which hit the victim. Cf. also Antiph. 5.64. δικάζουσι δὲ καὶ ἐγκλήματος κτλ simply means responsible and can refer to any cause; see also lines 33–35 of our inscription. Cf. Gernet, , Pensée juridique 368f.Google Scholar

¹⁸⁷ Xenoph. Cyrop. 1.2.7: ἐγκλήματος δίκην. is no parallel, since it should be understood as δικάζω (Liddell-Scott, , s.v. δικάζειν).Google Scholar

¹⁸⁸ As to its possible original text, see Bonner, and Smith, I 105. Balogh, , Political Refugees in Ancient Greece (Johannesburg 1943) 116 n. 224, holds that ‘the text is close to the wording of Solon's original law and not a free paraphrase of it.’ In view of Andoc. 1.78, this maybe true.Google Scholar

¹⁸⁹ ‘They shall be restored to their rights, except those who, from the Areopagus or from the ephetae or from the Prytaneum, were condemned by the “kings” on charges of homicide etc.’ Google Scholar

¹⁹⁰ Cf. Andoc. 1.78. This text is an even closer parallel, as Andocides uses the term καταδικάζειν instead of ἐδικάσθη and ὑπὸ τῶν βασιλέων. The insertion of between δικάξειν, suggested by Balogh, , op. cit. 117 n. 233, is as unacceptable as is his translation of both this and Plutarch's text (op. cit. 57, 60, following Smith, G., Class. Philol. 16 [1921] 348).Google Scholar

¹⁹¹ Steinwenter 57; Maschke, , op. cit. 48f.Google Scholar

¹⁹² The most recent discussion is the one by Bonner and Smith I 88ff. 125ff.Google Scholar

¹⁹³ Maschke, , op. cit. 49.Google Scholar

¹⁹⁴ op. cit. 50. Maschke's suggestion also disposes of the idea (Gilbert, , op. cit. [see note 1] 491ff.) that Draco substituted the jurisdiction of the ephetae for that of the Areopagus in all homicide matters and Solon restored the Areopagus in its function of trying premeditated homicide.Google Scholar

¹⁹⁵ Maschke, , op. cit. 49, 50, argues well for the theory that they were first instituted by Draco.Google Scholar

¹⁹⁶ Bonner and Smith I 128 believe that the absence in Aeschylus' Eumenides of the four speeches regularly delivered at an Athenian homicide trial reflects the ancient trial before a single magistrate. This is not convincing.Google Scholar

¹⁹⁷ This was pointed out by Bonner, , Class. Philol. 6 (1911) 31 (cf. Bonner, and Smith, I 28). His own interpretation, however: ‘I'll make my right in the matter clear’, so that the chiefs in the audience may judge, was justly rejected by Latte, , Heil. Recht 8 n. 8. Latte's view: ‘er wolle selber sagen, was rechtens sei und auch die anderen als billig anerkennen müssten’ is closer to the real meaning but still too vague.Google Scholar

¹⁹⁸ With respect to Greek law, the above principle has already been correctly pointed out by Latte, , op. cit. 40; see also p. 16 n. 27. Cf. also Gilbert, , op. cit. 469. Cf. for Germanic law: Brunner, H., Die Entstehung der Schwurgerichie (Berlin 1872) 47.Google Scholar

¹⁹⁹ Ehrenberg, , Rechtsidee 99; Latte, , op. cit. 40 n. 5; Steinwenter 46; Maschke, , op. cit. 47f.; Gernet, , Arch. d'hist. du droit orient. 1 (1937) 115.Google Scholar

²⁰⁰ In the primitive conception, the evidence had to be laid before the opponent, not before the judge: Latte, , op. cit. 32, 40; for Germanic law: Brunner, , op. cit. 48; Beyerle, , Entwicklungsproblem, passim .Google Scholar

²⁰¹ Maschke, , op. cit. 42.Google Scholar

²⁰² In a similar way as here αἰτιῶν was understood by Gilbert, , op. cit. 489. But Gilbert maintained the genetive δικάζειν which, in the light of this supposition, makes no sense.Google Scholar

²⁰³ Cf. also Demosth. 23.57.Google Scholar

²⁰⁴ See Ehrenberg, , op. cit. 98; Steinwenter 80 n. 3 and authors quoted by him; also Latte, , op. cit. 40 n. 5. See also Gernet, , Pensée juridique 448–451.Google Scholar

²⁰⁵ Cf. below, note 209.—The pronouncement (Rechtsgebot) which, on the basis of the ‘finder's’ verdict as approved by the Umstand, issued from the presiding officer in archaic German procedure (Brunner, , Deutsche Rechtsgeschichte I 203) is a perfect analogy to the δικάζειν. See also Carrelli, E., Annali della Fac. Giur. della R. Un. di Bari, N.S. 2(1939) 122, concerning the Roman addictio .Google Scholar

²⁰⁶ The banishment, capable of being bought off, as provided for in Draco's law, was of course only an attenuation of the originally unlimited right to revenge. This possibility is incorrectly denied by Lipsius 610 n. 40 and by Gerner, , Zur Unterscheidbarkeit von Zivil- und Straftatbeständen im attischen Recht (diss. Munich 1934) 42f.Google Scholar

²⁰⁷ Ehrenberg misunderstands the nature and purpose of archaic procedure when he assumes, op. cit. 97, that the consequence of the (ἀποτίνειν) was a reconciliation of the parties. This might happen, but—at least as long as the opportunity of buying off the execution by paying ἐπί ἴστορι πεῖραρ ἑλέσθαι a werguilt was not yet a legally protected privilege of the debtor—only if the latter was able to induce his opponent to waive his right to self-help voluntarily. Solemn promises to abide by the judgment, such as known from Babylonian, Egyptian, and Germanic laws, only confirm this view. As for the two former systems, it is significant that the promises were made only by the plaintiff whose claim had been rejected by the court or who had received satisfaction; see Lautner, , op. cit. (note 56) 39, and for the Egyptian law: P. Eleph. dem. 12 (Partsch, in Sethe, K. and Partsch, J., Demotische Urkunden zum ägyptischen Bürgschaftsrechte vorzüglich der Ptolemäerzeit [Abhandl. Sächs. Ak., Philol.-Hist. Kl. 32; Leipzig 1920] 752 ff.) and P. Brit. Mus. Eg. 10591 recto col. X, line 15 (ed. Thompson, Sir Herbert, A Family Archive from Siut [Oxford 1934]; cf. Seidl, E. and Stricker, B. H., SZR 57 [1937] 303; Berneker, E., Festschrift Paul Koschaker [Weimar 1939] III 272— Berneker's conclusions [pp. 277ff.] are only in part acceptable). The Germanic promise to comply with the judgment was precisely a means to make execution by way of self-help possible. It was not made after the judgment but belonged to the proceedings which led up to the institution of the lawsuit. Its refusal resulted in the loss of his case for the plaintiff or in immediate outlawry for the defendant, respectively; and its effect, as far as the defendant was concerned, was his subjection to the execution if the sentence went against him. See Schröder, , op. cit. (note 41) 87f. 92. Comparable to this promise were in the Greek law such agreements as the εἰσϕέρειν δὲ τοὺς ἄρχοντας, ὦν ἕκαστοι δικασταί εἰσι, τῷ βουλομένῳ, τὴν δ'ήλιαίαν διαγιγνώσκειν of the shield-scene or the promises in Aeschyl. Eumen. 438, 471f. and in the Roman law, the litis contestatio. See also above, note 76.Google Scholar

²⁰⁸ Whether or not he took part in the voting is of no concern in this connection. As to this question, see Lipsius 18; Bonner and Smith I 99.Google Scholar

²⁰⁹ This explains the wording of Demosth. 23.22, if we read the authentic text of the law quoted there (this is denied by Gilbert, , op. cit. 486). The strict terminology was certainly that of the inscription. It was still used in enactments of a more recent period; see Demosth. 23.28: καταδικαζειν (cf. also the law in Demosth. 43.71). Our inscription shows that there is no need of emending the text, as Lipsius 55 n. 6 (following Schelling, , De Solonis legibus 68) suggests. In the same sense δικάξειν is employed in Solon's amnesty law. Note also the use of διαγνῶναι δίκην by Aristotle Const. of Ath. 52.3; 53.1. See further Aeschyl. Eumen. 712, where Athena asks the judges: εἰσάγω δὲ τήν δίκην. Here, as in verse 585: δικάζει δ'ὁ βασιλεὺς καὶ οὶ ϕυλοβασιλεῖς, Aeschylus obviously copies the official style.Google Scholar

^209a The procedure was in recent years again discussed by Düll, , SZR 61 (1941) 1ff.Google Scholar

²¹⁰ Not the religious character of these cases, as Hyde, W. W., Amer. Journ. of Phil. 38 (1917) 175, suggests.Google Scholar

²¹¹ See Aristotle, , Const. of Ath. 57.4: αὐτοτελὴς δίκη ἀϕ' ἦς οὐκ ἔστιν ἐκκαλέσασθαι. Google Scholar

²¹² Cf. Lex. Seguer. (Bekker, , Anecd. 466.21): ἐϕ' ἑτέραν καὶ αὐτοτελὲς τὸ κύριον ἁπλῶς .Google Scholar

²¹³ For a brief report on existing opinions see Ralph, J. R., Ephesis in Athenian Litigation (Diss. U. of Chicago 1936; published in 1941) p. iiif. See also Bonner, and Smith, I 159 n. 2, II 232ff.Google Scholar

²¹⁴ A special inquiry would be desirable. Ralph and, following him, Bonner and Smith II 232ff. have established that the ephesis led to different practical results in different cases. But this does not justify their conclusion that the term did not express one legal conception covering all these cases. As a matter of fact, the identical terminology makes the contrary appear likely; only we should not necessarily expect the idea to be capable of definition by modern categories. Ralph, , op. cit. p. iv, uses the familiar argument of the ‘fluidity of Athenian legal terminology.’ But some weight should be attached to the fact that a scholar so thoroughly acquainted with Greek law and its sources as was Partsch emphatically insisted on the precision of the Greek legal terminology, Arch. f. Papyr. 6 (1913) 41. In support of Partsch's contention, I should like to point to such terms as ἀποδιδόναι and ἀποτίνειν. See also Wolff, , Traditio 2 (1944) 48f. 52f. (regarding ἔκδοσις and ἐγγύη).Google Scholar

²¹⁵ Wilamowitz's opinion (Aristoteles und Athen [Berlin 1893] I 60) that Solon transferred the power to inflict punishment beyond a certain limit from the magistrates to the assembly goes too far; see Lipsius, , Ber. Sächs. Ges. d. Wiss. Phil.-Hist. Kl. 50 (1898) 157, Bonner and Smith II 234 n. 2.Google Scholar

²¹⁶ op. cit. 71. Gernet, , Rev. des ét. gr. 52 (1939) 389 n. 1, 407 n. 1, agrees.Google Scholar

²¹⁷ Ralph, , op. cit. 7.Google Scholar

²¹⁸ Kύριος γὰρ ὢν ὁ δῆμος τῆς ψήϕου κύριος γίγνεται τῆς πολιτείας .Google Scholar

²¹⁹ This is considered by modern critics a true feature of the Draconian legislation; see Bonner and Smith I 145, 148; II 233; Ralph, , op. cit. 2 n. 2.Google Scholar

²²⁰ Compar. Sol. et Publ. 2.1.Google Scholar

²²¹ Such is the opinion of Ralph, , op. cit. 7.Google Scholar

²²² See Mommsen, Th., Abriss des römischen Staatsrechts, 2nd ed. (Binding's Systematisches Handbuch der deutschen Rechtswissenschaft I 3; Leipzig 1907) 98; also Düll, , SZR 56 (1936) 5. Differently Brecht, C. H., SZR 59 (1939) 287.Google Scholar

²²³ See Bonner, and Smith, I 57ff. Details need not be discussed here.Google Scholar

²²⁴ Cf. Bonner, and Smith, I 60f.Google Scholar

²²⁵ Attention may be called to the fact that the procedure before the public arbitrator of the classical period was still characterized by its archaic forms and the prevalence of a formalistic theory of evidence; see Gernet, , Rev. des ét. gr. 52 (1939) 396,400–404.Google Scholar

²²⁶ It may be remarked that even the authoritative jurisdiction of the magistrates over the lower classes of the population was primarily a supervision of self-help, especially when one of the parties to a suit was a member of the aristocracy and the other a commoner. The only difference between these cases and those arising between noblemen consisted in the fact that the social and political status of the common man relieved the official of the necessity to refer the case to the community or a fellow citizen chosen by the parties, so that he could, more or less arbitrarily, decide by command.Google Scholar

²²⁷ See Bonner, and Smith, I 196.Google Scholar

²²⁸ Text in note 209, supra. Google Scholar

²²⁹ The edict dates back to the time before the establishment of the board of nine archons; cf. Lipsius, 58.Google Scholar

²³⁰ Rabel, SZR 36 (1915) 388, aptly compares the edict with the Roman interdictum uti possidetis. Cf. Vinogradoff, , Outlines II 60.Google Scholar

^230a Paoli's theory (Studi Albertoni II 329; see also Rivista del Diritto Commerc. e del Dir. Gener. delle Obblig. 33 [1935] 36ff.; Studia et Documenta Historiae et Iuris 2 [1936] 77ff.) that under the Athenian law the conflict between self-help and control of self-help by public authority is to be explained by what he terms the ‘pluralistic’ character of the legal system— i.e., a double position of the citizen as sovereign head of an οἶκος, on the one hand, and as subject of the state, on the other—is unnecessary and involves an anachronism. See Wolff, , Traditio 2 (1944) 93 n. 235.Google Scholar

²³¹ Cf. with respect to Rome, Juncker, , Ged.-Schr.f. E. Seckel 197f.—Leifer, F., Ztschr.f. vgl. Rechtswiss. 50 (1936) 39, believes that a self-help procedure regulated by clan-law served as an intermediate stage between unrestricted self-help and state administration of justice. His statement occurs in a comparison of the Roman institution of vindex with certain features of ancient Irish law, but obviously claims validity beyond the limits of these two legal systems. He thinks that in an early period, when the clan was the only existing form of organized community, every wrong done by and to individuals was automatically an affair of their respective clans. Then, in his opinion, persons wielding authority on either side (the Roman vindex in his alleged original function, the Irish naidm) would step in as claimants and defenders for the individuals involved, prevent the immediate outbreak of hostilities, and try to settle the dispute by peaceful means, viz. an adjustment or the voluntary abandonment of the guilty individual to the offended clan. A war between the clans resulted if no settlement could be reached.Google Scholar

This is not the place for a critical review of Leifer's interesting and highly suggestive theory (doubts were voiced by Wenger, , Institutes 96 n. 10). Even assuming the correctness of its results, as far as historical facts are concerned, we must consider their interpretation by Leifer as erroneous. Society was still in the stage of unrestricted self-help, as no political organization existed which could impose its law on the clans. It may well be that certain forms were customarily observed by the clans in dealing with their own or their members' controversies, owing to a desire to avoid feuds or to make sure that they were forced upon the clan by unjust demands or a refusal to do justice on the part of another clan. Yet the fact remains that the decisions were always taken by the parties themselves, for the intermediaries had no authority over the members of the opposite clan. Hence the practice was at a par with arbitration, which indeed frequently enough may have been resorted to, but not a forerunner of true judicial litigation, in the sense suggested in this study.Google Scholar

A possible habit of defending resort to open feud by the formal proclamation of a just cause should not be confused with a judicial permission to take steps of execution by self-help. While a certain analogy exists between the two, as can be clearly seen in the elaborate procedure followed by the Romans when they went to war (see Phillipson, C., The International Law and Custom of Ancient Greece and Rome [London 19111 II 180ff. 329ff.), the act remains a onesided affair (it is therefore not quite precise when Cic. De leg. 2.9, followed by Phillipson 327ff. characterizes the fetiales as judges).—In quoting a statement by Arbois de Joubainville (Cours de littérature celtique VII [Paris 1895] 384), Leifer, , op. cit. 41, seems to approach the view expressed here, but fails to draw the conclusions which offer themselves.Google Scholar

²³² Glotz, G., L'ordalie dans la Grèce primitive (Paris 1904); Études sociales et juridiques sur l'antiquité grecque (Paris 1906) 69–97.Google Scholar

²³³ Glotz, , Solidarité (note 31) 271–287.Google Scholar

²³⁴ See the dispute between Menelaus, and Antilochus, , Iliad 23.570ff. Bonner and Smith I 29 list the evidentiary oath, along with self-help and community action, as one of the ‘ways of dealing with wrongdoers’ and oppose all three of them to arbitration. This view mistakes the legal nature of the evidentiary oath and its relation to both self-help and arbitration. Arbitration is a mode of peaceful and voluntary settlement, the evidentiary oath is a method of stating the right, and self-help and community action are means of revenge or enforcement.Google Scholar

²³⁵ Weiss, , Rhein. Ztschr.f. Zivil- u. Prozessrecht 11 (1921) 27.Google Scholar

²³⁶ This is the main result of his Gütegedanke; as to Greece, see Düll 111ff. A general preference by archaic society for amicable settlements has been noted several times; as for the Greeks, cf. Steinwenter 197, also Nicolò, San, Ztschr.f. vgl. Rechtswiss. 43 (1928) 295, and, pointing to Roman and Germanic sources, Weiss, , op. cit. 7.Google Scholar

²³⁷ Düll takes for a legal principle what was in fact a sociological effect of the legal situation. His theory is based on many correct observations, but, as far as the legal principle is concerned, all of these prove no more than such a function of the magistrate as suggested in the preceding section of this study. The situation becomes clear as soon as it is realized that even if the parties were free—as they were at Rome and probably in the early stages of Greek law—to refuse review of the issue by an umpire, such examination should be kept distinct from arbitration in the proper sense. In a similar way as here, Schönbauer, E., SZR 52 (1932) 257ff. takes exception to Düll's theory. His own view of the function of the Roman magistrate, however, is somewhat anachronistic.Google Scholar

Düll's failure to appreciate the true rôle of the magistrate, and, consequently, of the original character of the judicial decision, also constitutes my chief objection to his hypothesis on the archaic function of the Roman vindex , SZR 54 (1934) 98–136; ibid. 55 (1935) 9–35. Building on the correct assumption that the road from unbridled self-help to the civil procedure of the historical epoch passed through a stage of controlled self-help, he assigns the task of exercising such control to the vindex. In his opinion, the vindex was originally an organ of the community and reduced to his position as known from the sources only at a time when mere supervision of self-help gave way to the official procedure, allegedly aimed at conciliation and arbitration. Düll suggests an analogous evolution for Greek law, SZR 55.32f. This theory leaves unanswered two questions: What place should the vindex have occupied in the constitutional set-up of the early Latin community, and why should conciliation have been assigned to the magistrate, instead of simply charging the vindex with the new task? Nor does Düll offer an explanation of the fact, acknowledged by himself (SZR 55.9, 25) that self-help survived right into the legis actio-procedure. However, in this paper, too, Düll presents a number of valuable observations of detail, which served Leifer (as quoted in note 231) for a more attractive theory. See also the critical remarks by Betti, E., Diritto romano I (Padua 1935) 436 n. 1.Google Scholar

²³⁸ Cf. also Düll, , Gütegedanke 159. Volterra, E., op. cit. (n. 64 supra) 229, goes too far in objecting to any parallelism between the Attic and the Roman legal systems, although he is of course right in denying any influence of the former on the evolution of the latter.Google Scholar

²³⁹ Sometimes the habit of seeking satisfaction by immediate force and the power of those accustomed to do so are so strong that the attempt to subject the right claimed to a judicial decision proves futile. Then the road may not lead to an executory self-help subject to previous trial, but rather to a formalization of certain acts of self-help which will be allowed to take place without prior examination of their justification from the standpoint of substantive law. Such seems to be the origin of the duel as practiced by the European aristocracy. L. Cabral de Moncada, in an interesting article: ‘O duelo na vida do direito’ (Anuario de Historia de Derecho Español 2 [1925] 213–23; 3 [1926] 69–88), has shown how in medieval Spain and Portugal the noblemen's right to self-help was gradually restricted to certain cases and, at the same time, reduced to a formalized duel to be fought under supervision. He justly emphasizes the fact that neither as a legal institution of the later Middle Ages nor as a social custom of certain groups—such as it has survived to our own day—the duel can be characterized as a proceeding to obtain evidence. It has in fact always been a Rechtsgang aimed at immediate satisfaction by way of self-help (Cabral, , op. cit. 2.218ff.; 3.69ff. 85ff.). It may be added that Cabral's theory of the duel also explains the role of the ‘honor court’ which nowadays has often to decide on the admissibility of the duel, thus procuring an opportunity of previously examining the nature and truth of the charge brought by the challenger against his opponent. This is a survival of what we found to be the earliest function of judicial authority, i.e., to pass on the right to use self-help for the purpose of revenge. In addition, these honor courts also seem to preserve the idea, apparently widespread among early Indo-European peoples, that only a tribunal of peers of the parties, convoked with the consent of both of them, can judge on their right to employ force.Google Scholar

The development of the law of the Portuguese nobility, as set forth by Cabral de Moncada, is in significant contrast with that of the law of the commoners. As Cabral has shown, authorities in Portugal succeeded early in replacing immediate self-help among commoners by judicial litigation, confining battle to a purely evidentiary function in the form of ordeal.Google Scholar

²⁴⁰ As is well known, these pledges were largely rendered useless by the distinction, so rigidly insisted upon, between legal or justiciable disputes and disputes of a political character, which were supposed to involve the national interests or honor of a party and therefore considered outside the scope of a possible examination and decision by an impartial authority—the decision on the character of a given controversy lying with the party itself. A full discussion of this problem is found in Lauterpacht's, H. The Function of Law in the International Community (Oxford 1933).Google Scholar

²⁴¹ This principle was expressly stated in article 12 par. 1: ‘… in no case to resort to war until three months after the award by the arbitrator or the judicial decision or the report by the Council’ (italics mine). See also articles 13 par. 4 and 15 par. 6. Even more clearly is the principle stated in article 3 par. 2 of the Draft Treaty of Mutual Assistance of 1923 (which never went into force, to be sure). In the words: ‘provided, however, that the first state (i.e., a state waging war for the purpose of enforcement) does not intend to violate the political independence or the territorial integrity’ of its opponent, this provision constitutes a first attempt in international law to limit the scope of self-help action. Generally as to the problem, see Nussbaum, , Michigan Law Review 42 (1943) 477.Google Scholar