The Ancient Library
 

Scanned text contains errors.

PHONOS.

fessed the deed, but justified it ; &v ns bpohoyrj (Jilv Kreij/xt, fvv6fj.tos §e (j>p SeSpaKeVcu. Demo­sthenes calls it ayKararov teal (fipiK&deffTaroi' (c. Aristocr. 644 ; Harpocr. 5. v. 'Eirl AzXfyLvica ; Pol­lux1, viii. 119). As to the origin of this court see Matth. p. 152. In the to eVl Upvrnveica the objects of prosecution were inanimate things, as wood, stone, or iron, which had caused the death of a man by falling on him. (Harpocr. 5. v. 'ETri Tlpvra-veiy ; Pollux, viii. 120 ; Demosth. c. Arisfocr. 645.) Draco enacted that the cause of death should be cast out of the boundaries of the land (u7repop:<fe<70cu), in which ceremony the apx^v fiaffiXevs was as­sisted by the (/>yA0§a<nAe?s. (Meier, Att. Proc. p. 117 ; Suidas, s.v. Ni'/cwy; Aesch. c. Ctesiph. 88, ed. Steph.) This was a relic of very rude times, and may be not inaptly compared with our custom of giving deodands. Mattbiae (p. 154) thinks there was an ulterior object in- the investigation, viz., that by the production of the instrument by which death was inflicted, a clue might be found to the discovery of the real murderer, if any. The court eV {jfrpeaTTOi was reserved for a peculiar case ; where a man, after going into exile for an unintentional homicide, and before he had appeased the relations of the deceased, was charged with having com­mitted murder. He was brought in a ship to a place in the harbour called ev ^pearroT, and there pleaded his cause on board ship, while the judges remained on land. If he was convicted, he suf­fered the punishment of murder ; if acquitted, he suffered the remainder of his former punishment. The object of this contrivance was to avoid pollu-tion (for the crime of the first act had not yet been expiated), and at the same time to bring the second offence to trial. (Demosth. c. Aristocr. 646 ; Har­pocr. s.v. 'Ev </>peaTTot; Pollux, viii. 120 ; Matth. p. 155.)

To one or other of these courts all tyoviKal sikcli were sent for trial ; and it was the business of the &PX&V fiaffiXevs to decide which. The task of pro­secution devolved upon the nearest relatives of the deceased ; and in case of a slave, upon the master. To neglect to prosecute, without good cause, was deemed an offence against religion, that is, in any relation not further removed than a first cousin's son (cb>e\|/ia5oDs). Within that degree the law en­joined the relations to prosecute, under penalty of an acregdas ypatyfy, if they failed to do so. (Demosth. c. Androt. 5,93, c. Macart. 1069, c. Euerg. et Mnes. 1160, 1161 ; Antiph. deffer. caed. 135, ed. Steph.) They might, however (without incurring any censure), forbear to prosecute, where the mur­dered man had forgiven the murderer before he died (Demosth. c. Pantaen. 983) ; or, in cases of involuntary homicide, where the offender gave the satisfaction which the law required ; unless the de­ceased had given a special injunction to avenge him. (Lysias, c. Agor. 133, 138, ed. Steph. ; Matth. p. 170.)

The first step taken by the prosecutor was, to give notice to the accused to keep away from all public places and sacrifices. This was called Trpop-pfja-iSi and was given at the funeral of the de­ceased. (Antiph. de Her. caed. 130, 139, de Ghor. 141, ed. Steph.; Demosth. c. Leptin. 505, c. A ristocr. 632, c. Euerg. 1160.) After this, he gave a pub­lic notice in the market-place, warning the accused to appear and answer to the charge: here he was £ aid 7rpoet7re?y or frpoayopzveiv <povov. (Demosth. a. Maeart. 1068, c. Ncacr. 1348.) The next thing

897

PHONOS.

was, to prefer the charge before the king-archon. To such charge the term itri(TKr]TrT€{r0at or €7re£-levcu was peculiarly applied. (Pollux, viii. 33,118; Harpocr. s. v. 'ETrecr/dfjif/aro ; Antiph. Karrjy. (pap^u. Ill, ed. Steph.) The charge was delivered in writing ; the prosecutor was said aTroypdtytffQat siktjv Qovov. (Antiph. de CJior. 145, ed. Steph.) The king-archon having received it, after first warning the defendant airextffOat t£>v {jLvarripltov Kal t&v &\X(w voimjj.wv (Pollux, viii. C6, 90), pro­ceeded in due form to the avaKpuns. The main thing to be inquired into was the nature of the offence, and the court to which the cognizance ap­pertained. The evidence and other matters were to be prepared in the usual way. Three months were allowed for this preliminary inquiry, and there were three special hearings, one in each. month, called 8«JcSi/£c«rtc«, or (according to Bekker^s reading) 7rpo8//m<ricu (Antiph. de Chor. 146, ed. Steph.) ; after which, in the fourth month, the king-archon etcr^e rV siktjv. (Matth. p. 160.) The defendant was allowed to put in a Trapaypafyfy, if he contended that the charge ought to be tried in one of the minor courts. (Pollux, viii. 57.)

All the (povuca, SiKaffTTipta, were held in the open air, in order that the judges might not be under the same roof with one suspected of impurity ; nor the prosecutor with his adversary. (Antiph. deHer. caed. 130, ed. Steph.) The king-archon presided, with his crown taken off. (Pollux, viii. 90.) The parties were bound by the most solemn oaths ; the one swearing that the charge was true, that he bore such a relationship to the deceased, and that he would in conducting his case confine himself to the question at issue ; the other declaring the charge to be false. (Antiph. de Her. caed. 130, 140, de Chor. 143, ed. Steph. ; Demosth. c. JSuerg. 1161 ;. Matth. p. 163.) The witnesses on both sides were sworn in like manner (Antiph. de Her. caed. 130, 131, ed. Steph. ; Meier, Ait. Proc. p. 675) ; and slaves were allowed to appear as witnesses. (Meier, Ait-. Proc. p. 667.) Either party was at liberty to make two speeches, the prosecutor beginning, as may be seen from the rsrpaXoyia of Antiphon ; but both were obliged to confine themselves to the point at issue. (Lys. c. Simon. 100 ; Antiph. de Chor. 143, ed. Steph.) Advocates (crvvfjyopoi) were not admitted to speak for the parties anciently, but in later times they were. (Matth. p. 164.) Two days were occupied in. the trial. After the first day the defendant, if fearful of the result, was at liberty to fly the coun­try, except in the case of parricide. Such flight could not be prevented by the adversary, but the property of the exile was confiscated. (Pollux, viii. 117; Demosth. c. Aristocr. 634,643; Matth. p. 167.) On the third day the judges proceeded to give their votes ; for which two boxes or urns were provided (ydpiai or a/jLtyopeis}, one of brass, the other of wood ; the former for the condemning ballots, the latter for those of acquittal. An equal number of votes was an acquittal ; a point first established (according to the old tradition) upon the trial of Orestes. (Aeschyl. Eumen. 753 ; Matth. p. 165.)

As the defence might consist either in a simple denial of the killing, or of the intention to kill, or in a justification of the act, it is necessary to in­quire what circumstances amounted to a legal justi­fication or excuse. We learn from Demosthenes (c. Aristocr. 637) that it was excusable to kill an­other unintentionally in a gymnastic combat, or

3 m

Pages
About | First | English Index | Classified Index | Latin Index | Greek Index

896

897

898
letter/word  
page #  
Search this site
Google


ancientlibrary.com
WWW
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of Isidore-of-Seville.com.