The Ancient Library

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On this page: Judicial Procedure (continued)



included more offences than those which directly affected the State. Injuries to individuals might form matter for a public prosecution, if (as, e.g., in a case of theft or damage to property) the wrong to a citizen in his honour or property admitted of being viewed as an attack upon the honour of the citizens or the security of property in general. The difference, both in public and private actions, was essential, whether we consider (a) the right of prosecution, or (6) the consequences of condemnation.

(a) Any one might institute a public pro­secution, even if he had himself suffered no wrong. The only condition was that he must be of full age and in possession of all civic rights. It was only in cases of murder that the right of prosecution was limited to the relations of the murdered person. Private prosecutions, on the other hand, could only be undertaken by the injured person or his legal representative, in the case of a ward by his guardian, in that of a married woman by her husband, in that of strangers by their prdxenOs, in that of resident aliens by their patrons.

(6) In the case of public prosecutions, if a fine was inflicted the amount went into the public treasury ; in the case of a private prosecution, to the prosecutor. At public trials other penalties than fines could be inflicted : death, imprisonment, deprivation of civic rights, banishment with confiscation of property. This was not the case in private causes, though in them the State had the right of increasing the penalty. For instance, a prosecution for false witness was not public, but private; yet if a person was convicted three times, the State could inflict deprivation of civil rights. In public causes the prosecutor ran the risk of being himself fined 1,000 drachma; (£33 6s. 8rf.) if he failed to carry at least one-third of the votes of the jurymen: besides which he lost his right of instituting a similar action again. In private causes the prosecutor, if he failed to establish his case, was fined in an amount generally equal to one-sixth of the sum in dispute. A distinction was drawn between assessed and non-assessed causes. The non-assessed were those in which the amount of the fine was already fixed by law, and any further estimate was therefore unnecessary : the assessed causes were all those in which the amount of fine had to be settled according to the character of the offence, or the magnitude of the damage: in other words, those which re­quired that the punishment should be fixed

for the occasion. Besides those prosecu­tions, the object of which was to get a I person punished for an actual breach of law, there were others which merely aimed at settling a disputed right. 'These were naturally, for the most part, private causes: but there were public prosecutions of this kind as well. For instance, any one who proposed and carried a new law was liable for a whole year after it had passed to prosecution and punishment for making an illegal proposal. But after the year had elapsed his personal responsibility came to an end, and only the new law could be attacked. Private causes could be settled by arrangement, but the law forbade the accuser in a public cause to drop the case. If he did, he was liable to the same punish­ment as if he had failed to carry one-third of the votes. This was the principle, but it was not always carried out in practice. In certain public causes in which a reward was offered by the State, the prosecutor, if successful, received a share of the fine. The costs of private causes (prytdneia) were paid by both parties in advance, and returned to the successful suitor by his adversary. These fees amounted, if the sum in dispute were less than 1,000 drachmas (£33 6s. 8d.), to three drachma (about 2s.); if greater, to thirty drachmce, or about £1. The costs of public prosecutions were not paid by the accused. They were paid by the accuser in one case only; namely, if, in the event of the accused being con­demned, the accuser received part of the fine imposed. In testamentary suits, sup­posing a person to claim an inheritance already assigned to another, or to lay ex­clusive claim to one which was claimed by several others, the tenth part of the amount was deposited before the trial. If the suit was instituted against the State, supposing the question affected confiscated property, a fifth part of the amount was deposited. The successful litigant in either case re­ceived the amount deposited.

As above mentioned, the Athenian law allowed the prosecutor, in many cases, to institute the same suit in various forms. A case of personal injury might be treated either as a private action for assault or as a public action for outrage. In the latter case the prosecutor could make no claim for personal compensation. If the injury was accompanied by aggravating circumstances, supposing, for instance, that the person injured were performing a public function, either form of action was open.

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