NOTE 5. OUTLINE OF THE PROCESS IN AN ACTION. THE first thing to be considered by a plaintiff was, before what tribunal he should prefer his complaint. Different magistrates at Athens had jurisdiction over different classes of wrongs and injuries. Thus the archon (or chief magistrate) took cognizance of all causes concerning the family rights of citizens, such as rights of marriage and inheritance, duties of children to their parents, guardians to their wards. The present cause therefore came before him. The magistrate was rather a director or superintendant of the judicial proceedings, than a judge. The nature of his functions will appear, as we go on. Let us suppose the cause of action to belong to the archon. The plaintiff summoned the defendant to appear before him, say on the fifth day. The summons was given in the presence of one or more witnesses. Arrest was not allowed in civil actions, except in the case of foreigners, who might suddenly quit the city. The defendant could not appear by attorney, nor was appearance a mere form (as with us) by entry in a court book. He was obliged to attend in person before the archon, to answer the charge made against him. If he did not attend, and the plaintiff could prove that he had been duly summoned, he suffered judgment by default1. · Supposing both the parties to attend, the plaintiff exhibited his bill of plaint to the archon, who then had several things to consider; viz. whether he himself had jurisdiction in the cause; whether the plaintiff was a person competent to bring an action; whether the action was brought at a proper time or in a proper form; and lastly, whether in point of law there was any right of action at all. On the last point, (embracing a great variety of questions which might afterwards come before the court,) there can be no doubt, that by the constitution of Solon, and in the theory of the law, the archon had full power to decide in the first instance, and at once to quash all further proceedings; just as in England, if it appears by the plaintiff's own statement of his case, that he has no ground of action, the court gives judgment against him, without sending the case to a jury. He was subject however to a check. He 1 ερημον ωφλε. might at any time be accused before the people of corruption, or misconduct; more especially at the end of the official year, when he had to render an account of his administration. Any persons might then come forward, and allege, that by reason of his neglect they had been prevented from obtaining justice. When the democracy became settled, and the people more fond of exercising their judicial powers, they looked with jealousy upon any person who restrained them; and the complaint of a disappointed suitor would be readily attended to. It might be urged also with some show of reason, that as juries were, by the express provision of the legislature, judges of the law as well as the fact, any decision by a magistrate upon matter of substance in the cause was premature. Thus it became a delicate thing for him to interpose between the suitor and his rights; and, with respect to essential points, his duty was rather ministerial than judicial. Still in all matters of a technical and formal nature the magistrate exercised an undisputed authority over the proceedings, and was (both in theory and practice) the sole judge. Thus, if a woman, or a minor, commenced an action without the aid of a guardian or prochein amy, he would not suffer it to go on. If Demosthenes, instead of bringing an action, had been ignorant enough to prefer a criminal prosecution against Aphobus, the archon might have said: "you have mistaken your remedy. Two courses are open to you; either a general action for breach of trust, or one in a more special form for not letting the estate; but a criminal charge cannot be maintained." Demosthenes must then have commenced his proceedings de novo. If the archon saw no preliminary objection to the progress of the cause, he intimated the same to the parties, and appointed a day for further hearing. Then was the action considered to have formally commenced'; this being the first step actually taken by the Court. In England, for the same reason, we deem the action to be commenced by the issuing of the writ of summons, which commands the defendant to appear; for it issues in the King's name, and under the authority of the Court, though in reality the Court knows nothing about it, and the plaintiff obtains the writ by paying a small fee to a subordinate officer. The action being thus commenced, a short notice was written on a board, and hung up outside the archon's office, to inform all persons interested, that a cause between such and such parties was pending. 2 Aayxaveiv dikŋv signified in common Attic parlance, to commence an action. Strictly it is, to get the suit entertained, to obtain a hearing; and still more strictly, to obtain it by lot, which arose probably from this, that, when there were several causes, the magistrate cast lots for the order in which they were to be taken. The expression would remain when the practice was given up. Aayxavel has indeed shared the fate of many other words, in losing a portion of its original meaning, and is applied to a variety of objects in the simple sense of to obtain. First the On the appointed day the parties again attended before the archon, whose duty it now was, to hear the case fully on both sides. parties were sworn to speak the truth. defendant was called upon to put in his defence, which was always in writing. Either he simply denied the plaintiff's charge, or he pleaded specially. In the latter case the proceedings became more complicated, of which I reserve the explanation for a future note. I will here suppose him to plead a simple denial of the plaintiff's charge. The parties were then at issue, and nothing remained but to support their respective allegations by proof. The proof would lie partly in the law, partly in the facts of the case. To shew that he was right in law, either party might refer to the written code, or to any special decree; and might produce such copies or extracts from the same as he thought necessary. He might also comment upon their construction, or refer to known principles of unwritten law. To prove matter of fact, he called witnesses, produced documentary evidence, put questions to his opponent, or challenged him to some supposed test of the truth, such as the examination of a slave by torture. The archon heard the parties and their witnesses, and put such questions to them as he 3 This was called avaкpiois, because the archon examined the parties and their witnesses. |