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On this page: Diagrapheis – Dialis Flamen – Diamartyria – Diamastigosis

DIAETETAE.

DIAMASTIGOSIS.

359

tlie name ($ Kvpia sell, ypepa) by which it is called in the orators ; it might, however, with con­sent of both parties, be postponed. The verdict given was countersigned by the proper authorities, perhaps by the eitraycoyeTs, and thereby acquired its validity. The archons, mentioned by Demo­sthenes (c. Meid. p. 542) as having signed a judg­ment, were probably thesmothetae, as the action KaK-rjyopias, which is, moreover, called

was a

an ari/uLTjTos Seita ijlv&v St/c??, i. e. an action where the plaintiff was not required to assess the damages (aestimare litem\ the penalty, in case of a verdict for him, being determined by law : this alone is suf­ficient to prove that the Diaetetae sometimes de­cided. in cases where the plaintiff sued for damages, as distinguished from those in which he sought restitution of rights or property ; nor, indeed, does there seem any reason for supposing that their juris­diction was not extended to the fryuves n^roi., or actions where the plaintiff was required to assess or lay his damages, provided the assessment did not exceed some fixed amount. In support of this opinion we may adduce the authority of Pollux (viii. 127), who expressly states that the plaintiff might assess his damages before the arbitrators, when the law did not do so for him.

If the defendant were not present on the proper day to make his last defence, judgment went against him by default (e'p^u??*/ <D<pAe), the ar­bitrator being obliged to wait till the evening (mj/e fijjLepas, Dem. c. Meid. p. 541, c. Timotli. p. 1190). Sometimes, however, the time of pronouncing sen­tence was deferred in consequence of a deposition (yTrajyUocria, Pollux, Tin. 60 ; Harpocr. s. v.} al­leging a satisfactory cause for postponement, such as sickness, absence from town, military service, or other reasons. To substantiate these, the ap­plicant, when possible, appeared personally ; but if a party was prevented from appearing on the day of trial, by any unexpected event, the v-rrco/j-oo-ia might be made on oath by authorised friends. (Dem. g. Olymp. p. 1 1 74. 4 ; Pollux, viii. 56.) The vTr(»}fj.o(TLa might be met by a counter-statement (<xz>#u7rco,uo(ria) from the opposite party affirming his belief that the reasons alleged were fictitious or colourable. In connection with this point, we may observe that, according to Pollux (viii. 60), the motion for a new trial could only be sustained in cases where the applicant had made a yTrw^cxrta, and demurred either personally or by proxy against the passing of judgment on the regular day. More­over, it was incumbent on the party who wished for a new trial to move for it within ten days after judgment had been pronounced, and even then he was obliged to take a kind of vTra^ocn'a, to the effect that his absence on the proper day was in­voluntary. (Pollux, viii. 60.) In default of com­pliance with these conditions, the previous sentence was confirmed. (Dem. c. Meid. p. 542.) We are told also by Photius (Lex. s. v. /ut? ovcra Sf/n?), that it was competent for plaintiff as well as defendant to move for a new trial on the grounds we have mentioned. When it was granted, the former ver­dict was set aside (t? e'pfywj e'Auero), and the par­ties went again before an arbitrator, probably through the instrumentality of the elcraycoye??, to whom application had been made in the first in­stance. The process itself is called avriXri^LS in Greek, and does not seem to have been confined to trials before the Diaetetae : the corresponding term in Roman law is restauratio eremodicii.

This, however, was not the only means of set­ting aside a judgment, inasmuch as it might also be effected by an e^etm, or appeal to the higher courts [appellatio (greek)], and if false evi­dence had been tendered, by a sikt? /caKorexj/iwi' (Harpocr. s. v. ; Dem. c. Timotk. p. 1201. 5).

It remains to speak of the strictly private arbi­trators, chosen by mutual agreement between con­tending parties, and therefore generally distinguished by the title aiperoi, of whom it must be under­stood that they were not selected from the sicut^tcu of the tribes. The powers with which they were invested, were, as we might suppose, not always the same; sometimes they were merely Sia\\aKral9 or chosen to effect a compromise or reconciliation : thus Isaeus (De Dicaeog. Hered. p. 54, ed. Bekk.) speaks of arbitrators offering either to bring about a reconciliation if they could, without taking an oath, or to make an award (aTrotyaijsecrdat) upon oath. Sometimes, on the other hand, they were purely referees, and then their powers depended upon the terms of the agreement of reference ; if these powers were limited, the arbitration was a fiiaiTa €irl f>7]ro7s (Isocr. c. Call. p. 373,ed. Bekk.). The agree­ment was not merely a verbal contract (stipulatio\ but drawn up in writing (eirirpoirii KaraffijvQiiKas^ Dem. c. Plior. p. 912), and signed by the parties ; it fixed the number of referees (generally three), determined how many unanimous votes were ne­cessary for a valid decision, and probably reserved or prohibited, as the case might be, a right of ap­peal to other authorities. (Isocr. c. Call: p. 375, ed. Bekk. ; Dem. c. Apat. p. 897.)

If there were no limitations, these Diaetetae were then, so to speak, arbitrators proper, accord­ ing to the definition of Festus (p. 15, ed. Mitl- ler) : —" Arbiter dicitur judex, quod totius rei habeat arbitrium et potestatem." Moreover, no appeal could be brought against their judgment (Dem. c. Meid. p. 545) ; though we read of an in­ stance of a party having persuaded his opponent to leave a matter to the arbitration of three persons ; and afterwards, when he found they were likely to decide against himself, going before one of the public arbitrators. (Dem. c. Aplieb. p. 862.) We should, however, suppose that in this case there was no written (rvvd-f]^. The award was fre­ quently given under the sanction of an oath, and had the same force as the judgment which pro­ ceeded from a court of law, so that it might be fol­ lowed by a 5t/c?7 e'£oi;A?7S. (Dem. c. Callip. p. 1240. 22.) We may add, that these private Diaetetae are spoken of as sitting eV t$ /epoJ, eV r<£ 'H<£cu- (rre/o), and that in some cases it was customary to give notice of their appointment to the proper archon or magistrate (a-jrotyepew Trpbs t^iv apxfa), who, as Hudtwalcker suggests, may have acted as an elcraywyevs in the case. (Dem. c. Callip. p. 1244. 14, c. Meid. p. 542. 14.) [R. W.]

DIAGRAPHEIS (Siaypa^s). [eisphora.]

DIALIS FLAMEN. [flambn.]

DIAMARTYRIA (SiapapTvpia.) [ana-

CRISIS.]

DIAMASTIGOSIS (Sm/wHrrfyaxm), was a

solemnity performed at Sparta at the festival of Artemis Orthia, whose temple was called Lim-naeon, from its situation in a marshy part of the town. (Paus. iii. 16. § 6.) The solemnity was this : — Spartan youths (€<f>y§oi) were scourged en the occasion at the altar of Artemis, by persons appointed for the purpose, until their blood gushed