Dēmos · Classical Athenian Democracy · a Stoa Publication
→ Summons, Arrest, & Investigation.
Victor Bers & Adriaan Lanni, edition of March 15, 2003
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To start with the most urgent sort of situation, consider a man physically attacked on the street. The speaker in Lysias 3, a man involved in a lovers’ quarrel—the love object was a boy named Theodotus from the town of Plataea—tells how he and his companion were jumped by his opponent and assisted by passersby:
Read about the evidence
Lysias (Lys. 3).
“The young man ran into a fuller’s shop, but they charged in and started to drag him off by force. He began yelling and shouting and calling out for witnesses. Many people rushed up, angry at what was happening, and said that it was disgraceful behavior. My opponents ignored what they said, but beat up Molon the fuller and several others who tried to protect Theodotus.” (Lys. 3.15-16.)
Plot on a Map
Notice that Theodotus does not call for the police, and the bystanders do not hesitate to “get involved” in his behalf. There was, as said, no police force to prevent or investigate crime (the closest thing to police in Athens was a band of slaves from what is now southern Russia, the “Scythian archers,” whose primary function seems to have been crowd control). Theodotus calls on those who happen to be present both to protect him from harm and to serve as witnesses if the scuffle results in a trial. It is also a notable difference from our experience that nobody was arrested; if one or the other party decided to bring legal action, he would be responsible for delivering the appropriate summons to his opponent at a later time.
Or one might know ahead of time that an action could result in litigation, as for example, the payment of a debt or, more colorfully, the killing of a man in bed with your wife. In such situations, men would gather a group of kin, friends, or neighbors both as physical backup and as potential witnesses in court. In “On the Murder of Eratosthenes”, the speaker, Euphiletus, is defending himself on a charge of homicide after killing his wife’s lover. He argues that his action was sanctioned by the lawful homicide statute, which provided that a man who catches an adulterer in flagrante delicto may kill him with impunity. (Demosthenes 23.53) When a loyal servant informed Euphiletus that the adulterer had entered his wife’s bedroom, he does not immediately confront the intruder but rather rounds up a posse to attest that Euphiletus found Eratosthenes lying with his wife should he later be prosecuted for homicide:
“Eratosthenes, sirs, entered and the maid-servant roused me at once, and told me that he was in the house. Bidding her look after the door, I descended and went out in silence; I called on one friend and another, and found some of them at home, while others were out of town. I took with me as many as I could among those who were there, and so came along. Then we got torches at the nearest shop, and went in; the door was open, as the girl had it in readiness. We pushed open the door of the bedroom, and the first of us to enter were in time to see him lying down by my wife; those who followed saw him standing naked on the bed. I gave him a blow, sirs, which knocked him down, and pulling round his two hands behind his back, and tying them, I asked him why he had the insolence to enter my house. He admitted his guilt; then he besought and implored me not to kill him, but to exact a sum of money. To this I replied, ‘It is not I who am going to kill you, but our city’s law…’” Lys. 1.23-26.
So far we have been describing the prospect of a protracted legal process, initiated by delivering a summons to the defendant to appear before a magistrate at a later date. However, summary arrest (apagoge see the Glossary entry) was possible in a limited set of circumstances, most notably in the case of “wrongdoers” (kakourgoi), a class that seems to have included much of what we think of as street criminals: certain types of thieves, house burglars, clothestealers, and pickpockets. If a man caught a thief “red-handed” (there is some dispute over whether the Greek term—ep’ autophoroi—requires that the criminal be caught in the act, or merely that his guilt be manifest, as for example, if stolen goods are found on his person), he could personally arrest him and haul him before a board of magistrates known as the Eleven (see the Glossary entry). In a rare exception to the reliance on private initiative at all stages of the legal process, if the man did not feel able to arrest the thief on his own, he could ask a magistrate to make the arrest for him in a procedure known as ephegesis. Once before the Eleven, a man who admitted stealing was summarily executed, while if he did not, he was imprisoned pending trial. We don’t know for sure why street criminals were subjected to this special procedure, but it may be that it was considered important to deal strictly and expeditiously with offenses that were both flagrant and potentially disruptive to public order and citizens’ sense of security.
To take the opposite case, what if a man suffered loss or damage but didn’t know for sure who was at fault? It was entirely up to the aggrieved party to seek out witnesses and act as his own private investigator. The law imposed reasonable limits on such investigations; a citizen was authorized, for example, to search another’s house for stolen goods provided that the head of the household gave his consent and that the searcher left his cloak outside to make it more difficult to plant evidence.
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