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orators, were of two kinds ; the one public and appointed by lot (/cA^porroi), the other private and chosen (aiperot) by the parties who referred to them the decision of a disputed point, instead of trying it before a court of justice ; the judgments of both, according to Aristotle, being founded on equity rather than law (6 yap Stamps t& e'TueiKes opa, 6 5« SLKao'r^s t^v vo^ov^ Rhetor, i. 13). We shall, in the first place, treat of the public diaetetae, following as closely as possible the order and statements of Hudtwalcker in his treatise " Ueber die oftentlichen und Privat-Schiedsrichter Diateten in Athen, und den Process vor densclben."
According to Suidas (s. t?.), the public Diaetetae were required to be not less than 50 years of age ; according to Pollux (viii. 126) and Hesychius, not less than 60. With respect to their number there is some difficulty, in consequence of a statement of Ulpian (Demosth. c. Mcid. p. 542. 15), according to which it was 440, i. e. 44 for each tribe, (^ctclv Se TeVfrapes /cat Teo"(rapa/roj>Ta, Kad' eKao-rrjv fyv\T]v). This number, however, appears so unnecessarily large, more especially when it is considered that the Attic orators frequently speak of only one arbitrator in each case, that some writers have, with good reason, supposed the reading-should be — ^ffav 5e recrffapdicovTa, reffffapss k. 4. </>'. At any rate, litigious as the Athenians were, it seems that 40 must have been enough for all purposes.
The words K«0' eicdcrryv (pvXyv, imply that each tribe had its own arbitrator ; an inference which is supported by Demosthenes (c. Everg. p. 1142. 25), where he speaks of the arbitrators of the Oeneid and Erectheid tribes: as well as by Lysias (c. Panel, p. 731), who, in the words Trpo(TK\r]o-df.i€^os avrbv irpbs Tobs rfj 'liriroOotoVTiSi §ucct^bj/ras, is thought to allude to the Diaetetae of the Hippo-thoontid tribe. With regard to the election of these officers, it is doubtful whether they were chosen by the members of the tribe for which they adjudicated, or in a general assembly of the people. Hudtwalcker inclines to the latter supposition, as being more probable : we do not think so ; for it seems just as likeljr, if not more so, that the four arbitrators of each tribe were chosen in an assembly of the tribe itself. Again, whether they were appointed for life, or only for a definite period, is not expressly mentioned by the orators ; but as none of the Athenian magistrates, with the exception of the Areiopagites, remained permanently in office, and Demosthenes (c.Meid. p. 542.15) speaks of the last day of the llth month of the year as being the last day of the Diaetetae (^ reAeurcua ^uepa r&v §ia.iTf]T<av\ it seems almost certain that they were elected for a year only. The only objection to this conclusion arises from a statement in a fragment of Isaeus (p. 361, ed, Reiske), where an arbitrator is spoken of as being engaged on a suit for two years (Si'0 er?? rov Siairyrov rriv SiKtlv e^oi/ros) : if, however, we admit the conjectural reading rcV SicemjTwj', the meaning would be in accordance with what we infer from other authorities, and would only imply that the same cause came before the arbitrators of two different years, a case which might not unfrequently happen ; if, on the contrary, the reading of the text is correct, we must suppose that it was sometimes necessary or convenient to re-elect an arbitrator for the decision of a particular.case. .
It is doubtful whether the public Diaetetae took any general oath before entering upon their duties. Such a guarantee would seem to be unnecessary ; for we read of their taking oaths previous to giving judgment in the particular cases which came before them. (Isaeus, De Dicaeog. Hered. p. 54 ; Dem. c. Callip. p. 1244.) From this circumstance we should infer that no oath was exacted from them before they entered upon office : Hudtwalcker is of a contrary opinion, and suggests that the purport of their oath of office was the same as that of the Heliastic oath given by Demosthenes (c. Timocr. p. 747).
The Diaetetae of the different tribes appear to have sat in different places j as temples, halls, and courts of justice, if not wanted for other purposes. Those of the Oeneid and Erectheid tribes met in the heliaea (Dem. c. Everg. p. 1142. 25.) ; we read of others holding a court in the delphinium (c. Boeot. ii. p. 1011), and also in the (rroh iroiKiXl] (c. Steph. i. p. 1106). Again, we are told of slaves being examined by the Diaetetae sitting for that purpose, under the appellation of Paoravt-crral [tormentum], in the hephaisteium, or temple of Poseidon. (Isocr. Tpa7re£ p. 361. 2), ed. Bekker.) Moreover, we are told of private arbitrators meeting in the temple of Athena on the Acropolis ; and, if the amended reading of Pollux (viii. 126) is correct, we are informed by him, in general terms, that the arbitrators formerly held their courts in the temples (AnJTav eV lepo'is TraAcu). Harpocration also (s. v.) contrasts the dicasts with the arbitrators, observing that the •former had regularly appointed courts of justice
Another point of difference was the mode of payment, inasmuch as the dicasts received an allowance from the state, whereas the only remuneration of the Diaetetae was a drachma deposited as a Trapdcrra(ns by the complainant, on the commencement of the suit, the same sum being also paid for the a,j/-rcojuo<na, and every virco/jLoo-la, sworn during the proceedings. (Pollux, viii. 39, 127 ; Harpocr. s. v.) This Trapacrratm is the same as the fipax^fy r°v AeiTroftcprupfou mentioned by Demosthenes (c. Timotfi. p. 1190). The defendant in this case had failed to give evidence as lie ought to have done, and therefore the plaintiff commenced proceedings against him for this neglect, before the arbitrators in the principal suit, the first step of which was the payment of the irapd-(Tracns.
The public arbitrators were vTrevOvvoi, i.e. every one who had, or fancied he had, a cause of complaint against them for their decisions, might proceed against them by efVcryyeAia, or information laid before the senate. For this purpose, says Ulpian, whose- statement is confirmed by Demosthenes (c. Meid.} in the case of Straton, the public Diaetetae were towards the close of their year of office, and during the latter clays of the month Thargelion, required to present themselves in some fixed place, probably near the senate-house, that they might be ready to answer any charge brought against them, of which they received a previous notice. The punishment, in case of condemnation, was atimia^ or the loss of civic rights. Harpo-cration (s. v.), however, informs us that the eio~ay-yeAax against the arbitrators was brought before the dicasts or judges of the regular courts, but this j probably happened only on appeal, or in cases of