Crime and Punishment in

Ancient Greece and Rome

The University of Western

Ontario
Randall Pogorzelski

Our focus in this class will be on Athens in the fifth and fourth centuries,
but Athenian laws and ideas of crime developed from a long history in
Greece and beyond.

The oldest Greek literature we have is Homers Iliad, written sometime in

the 8th century BCE and purporting to represent the 12th century BCE.
Already in the Iliad there is much we can learn about dispute resolution,
self-help, and arbitration.

The shield of Achilles, described in book 18 of the Iliad, contains a

description of what looks like a court case:
The people were assembled in the marketplace, where a quarrel had
arisen, and two men were disputing over the blood price for a man who
had been killed. One man promised full restitution in a public statement,
but the other refused and would accept nothing. Both made for an
arbitrator, to have a decision, and the people were speaking up on either
side, to help both men. But the heralds kept the people in hand, as
meanwhile the elders were in session on benches of polished stone in the
sacred circle and held in their voices. The two men rushed before these,
and took turns speaking their cases, and between them lay on the ground
two talents of gold, to be given to that judge who in this case spoke the
straightest opinion. (Iliad 18.497-508, cited on VerSteeg page 5)

In the mid-7th century BCE (the Archaic Period), written laws appeared in
several places in Greece. Traditionally, Zaleucus wrote the first laws for
Locri in southern Italy. One of our most extensive and important early
legal inscriptions is from Gortyn on Crete.

The most common Greek word for law was nomos (plural nomoi), which
also means custom. In this way, the Greek view of law was much like socalled common law. Another early Greek word for law was thesmos
(plural thesmoi), which perhaps comes closer to so-called civil law.

The Archaic Period was a time of intense competition between oligarchs,

tyrants, and democrats in Greece. Although it wasnt always the case, it
was often true in archaic Greece that a city in conflict would ask a neutral
person to make laws. This shows the origin of Greek laws in conflict
between powerful men and explains why Greek laws are so focused on
powerful men.

Written laws helped to promote equal treatment, although some

inequalities like gender inequality and slavery were included in the laws.
Written laws also made legal procedures mandatory rather than voluntary
and reduced the judicial discretion of magistrates.

Athenian tradition records that Draco wrote the first law code for Athens in
621 BCE. Dracos laws had a reputation for being harsh and we get the
word draconian from him, but this may be because Draco allowed lethal
self-help. In some instances, however, he made judicial procedure rather
than self-help mandatory.

In 594 BCE Solon reformed the Athenian government and law code. He
abolished Dracos laws except for his homicide law. Solons laws were
extensive and the Athenians regarded them as the basis of their laws
throughout the Classical Period.

Solons laws and government were more democratic than oligarchic, and
one of his more important acts was the abolition of debt slavery. He
nevertheless wrote his laws largely for the purpose of mediating between
aristocratic parties, and under his system it was much easier for aristocrats
to take advantage of the courts than it was for non-elites to do so.

Before Solon, Athens was mostly ruled by the aristocratic council of elders
known by the name of their meeting place: the Areopagus, which means
the hill of Ares. They ruled the polis together, and each one was a
member of an aristocratic family. The Greek word for household is oikos
(plural oikoi). The head of a household was a kyrios.

By the time of Solon, the nine Archons were the most important
magistrates and the Areopagus was made up of former Archons. In the 6 th
century, they were elected. In the 5th century the Athenians would elect a
short list and then choose the archons from that list by lot. At some point
allotment replaced election even for the preliminary stage.
The archons were:
1. basileus (king, in charge of religious matters)
2. polemarchos (warleader)
3. eponymous archon (the year was named after him)
4. six thesmothetai (judicial officials)

Before Solon, magistrates would decide legal cases themselves. Solon

allowed litigants to appeal a magistrates decision and he set up a court
called the Heliaia, sometimes spelled Eliaia (either way is correct). At first,
it seems that the Heliaia was just the Ekklesia called by a different name.

Over time, the Heliaia evolved into a complex system, and the word could
refer to the whole system or to an individual court within it. A magistrate
with the appropriate jurisdiction would preside over the court and
announce the verdict of the jury.

In the 5th century, the Athenians selected a volunteer pool of 6000 jurors.
Each juror (dikastes) would take the following oath at the beginning of the
year:
I will vote in accordance with the laws and decrees of the people of Athens
and of the council of five hundred, and on matters where there are no
laws, I will vote in accordance with the most just opinion.

Jurors were citizen men over 30 years old, and in the 450s BCE Pericles
instituted a payment of two obols per day (three obols after 425 BCE) for
jury service. This was less than a day of physical labor would earn, and
the stereotype was that jurors were men too old for physical labor.

The evidence is not fully clear, but it seems that for most of the Classical
Period the standard jury size was 500, but special cases sometimes had
different numbers of jurors, and there is a report of one case (a graphe
paranomon against Speusippos by Leogoras in 415 BCE) that used the
full 6000.

As the system of courts developed, the magistrates presided over courts

with specialized jurisdictions. The jurisdictions of the Archons were:
Basileus: religious matters and homicide (with the ephetai as jury)
Polemarchos: cases involving non-Athenians
Eponymous archon: family and inheritance cases
Thesmothetai: all cases not under the jurisdiction of the others

In addition, other officials had other jurisdictions:

The Eleven: in charge of prisons and executions, but could also try cases
of major theft themselves
Agoranomoi: cases involving disputes in the Agora
Sitophylakes: cases involving grain
Epimeletai tou Emporiou: cases involving grain in the port (aka the
Peiraeus)
Eisagogeis: cases involving loans and banking
The Forty: the tribe judges conducted most of the preliminary hearings for
private cases

Over time, the population of Athens grew further and the city also kept
closer ties with its allies in the Delian League. This necessitated the
creation of various boards of minor officials to oversee cases, including the
nautodikai and xenodikai. These two boards operated from the mid-5th
century to the mid-4th century.

In addition to having various types of magistrates with various jurisdictions,

the Athenians also developed a judicial calendar that determined in what
months certain kinds of cases could be heard. For example, from the mid4th century mercantile cases (dikai emporikai) could be brought from
Boedromion to Mounikhion (roughly September to April).

After the lawgivers Draco and Solon, Kleisthenes reformed the Athenian
government in 509 BCE. Under this government, a citizen could propose
a new law to the Boule, a council of 500 that determined the business to
be considered by the Ekklesia, which was the full assembly of Athenian
citizen men. If the Boule agreed to it, the Ekklesia would consider and
vote on the new law, which was called a psephisma (plural psephismata).

In 410 BCE the Athenians decided to inscribe the laws of Solon and
Dracos homicide law on stone. As a part of this project, they discovered
some contradictions. Before 403 BCE the contradictions were resolved by
the council (Boule) and assembly (Ekklesia).

In 404 BCE, Athens lost the Peloponnesian War to Sparta and Sparta
imposed a governing board of 30 on Athens. These men became known
as the Thirty Tyrants and the democratic resistance led by Thrasybulus
overthrew them and restored the democracy in 403 BCE.

After the reinscription of the laws and the reestablishment of the

democracy in 403 BCE, the formal laws inscribed on stone were officially
called nomoi (singular nomos) to distinguish them from psephismata,
which is usually translated as decrees.

As a part of the restoration of the democracy, the Athenians decided that

no law was valid unless it had been inscribed on stone during the
reinscription of 410-403 BCE and that no prosecution could be brought for
actions taken before the restoration of the democracy.

Moreover, the restored democracy established a board of Nomothetai, or

legislators. The Nomothetai conducted an annual review of all the laws to
resolve contradictions. In addition, the first meeting of the Ekklesia every
year citizens could propose new laws and changes to existing laws. If the
assembly voted to change or add a law, the Nomothetai would review the
change and if they approved it, would inscribe it and announce it.

In the late 5th century, around the same time as the reinscription of the
laws, Athens also introduced a procedure known as graphe paranomon.
This was a charge against someone proposing a law or decree that was
contrary to already established laws.

The historical root of Greek law, as we saw in the Iliad was arbitration of a
dispute between two people. In Classical Athens, the simplest and fastest
way to resolve a dispute legally was through arbitration. Although any
citizen could serve as a private arbitrator, the state also required male
citizens over the age of 59 to serve as public arbitrators.

In the Classical Period, if two Athenians had a private legal dispute, the
plaintiff would first approach the four judges of his tribe. If the amount in
dispute was more than ten drachmas, the judges would refer the case to a
public arbitrator. If the two parties were satisfied by the arbitrators
decision, it was binding, but either party could appeal the decision and
demand a jury trial.

Arbitration was for private cases. Athens distinguished between private

cases, called a dikai idiai (singular dike idia) and public cases, called dikai
demosiai (singular dike demosia). Because the most common forms of
public cases involved filing written charges, dikai demosiai were commonly
called graphai (singular graphe) and dikai idiai were commonly called
simply dikai.

The major procedural difference between public cases and private cases
was that private cases could only be initiated by the aggrieved party, or in
the case of homicide by the relatives of the victim, while public cases could
be initiated and prosecuted by any citizen in good standing. Solon made
the distinction to allow citizens to look out for the public interest even if
they were not directly harmed.

Public cases developed a more complicated set of procedures than private

cases did. The most important types of procedures for public cases were:
Apagoge The prosecutor arrests the defendant and brings him to the
appropriate magistrate.
Ephegesis The prosecutor goes to get the appropriate magistrate and
brings him to the defendant.
Endeixis The prosecutor goes to the magistrate and receives permission
to arrest the defendant himself.
Apographe The prosecutor writes a list of state property wrongfully held
by the defendant.
Eisangelia The prosecutor denounces the defendant before the Ekklesia,
Boule, or Archon, which can then decide to try the case immediately.
Probole The prosecutor denounces the defendant before the Ekklesia,
which decides whether to refer the case to a jury.

In addition to the regular public procedures, there were a couple of similar

procedures that were not exactly public cases, but were similar:
Dokimasia An examination of candidates for office by the Thesmothetai.
Euthynai A review of performance in public office by a special board of
ten appointed by the Boule.

All of these procedures were for public cases, and they were initiated by
volunteer prosecutors. To encourage volunteers, Solon instituted various
financial rewards for victorious volunteer prosecutors, usually a
percentage of the fine.

One of the problems of offering financial rewards for volunteer prosecutors

was so-called sycophancy. To discourage this, any prosecutor who
abandoned a case after it had started or failed to get at least 20% of the
jurors to vote for him was fined 1000 drachmas. In more severe cases, it
was possible to prosecute a man for sycophancy, in which case the
penalties could be more severe.

In addition to volunteer prosecutors, there were so-called Synegoroi

(singular Synegoros). There were some special kinds of occasions when
Athens used Synegoroi. First, ten were chosen by lot annually to preside
over the euthynai, or review of magistrate performance. Second, when the
Ekklesia referred a case to a jury trial, it could also appoint a special
prosecutor. Finally, Synegoroi defended the present laws against
proposed changes before the Nomothetai.

Once it was determined that a case would go to a jury trial, it was the
responsibility of the plaintiff to file the complaint and pay a filing fee. He
then informed the defendant of the date of the trial, the presiding
magistrate, and the substance of the complaint or charge. If the plaintiff
won, the defendant would have to reimburse him for the filing fee.

When the plaintiff and defendant appeared in court on the appointed day,
this was for a preliminary hearing in which the magistrate asked the
defendant whether he admitted or denied the charges.

During the preliminary hearing, the defendant could make a procedural

challenge. Sometimes this challenge depended on a fact that could be
disputed. For example, if a case involved a non-citizen in the early 5 th
century, it would normally be heard by the Polemarch. A defendant could
call a witness to assert that he was an Athenian citizen and so the
Polemarch should not hear the case. Such a witness statement was
called diamartyria.

Beginning in the late 5th century it was also possible to initiate a counterprosecution in which the defendant claimed that the plaintiff was bringing
the case in some way contrary to the law. For example, a defendant could
assert that the matter had already been decided by another court. This
procedural challenge was called paragraphe.

On trial day, the plaintiff spoke first, and then the defendant. The length of
the speeches was limited by a water clock.

In Classical Athens, lawyers did not speak on behalf of clients. Rather, the
plaintiff and defendant spoke for themselves. Often a litigant would hire a
speechwriter called a logographer (in Greek a logographos, plural
logographoi).

The speeches by the litigants included all of the evidence and witnesses.
There was no procedure for cross-examination. The litigants would be
responsible for presenting the relevant laws and producing documentary
and physical evidence.

In the 5th century witnesses testified orally, but in about 375 BCE a law
required witness statements to be submitted in writing, although witnesses
were generally present and could be summoned to testify to the truth of
their statements. Most of the time women, children, and disenfranchised
citizens could not testify at all, and evidence given by slaves was only
admissible if it was obtained under torture.

After the speeches, the jury voted immediately without any instruction or
deliberation. In the 5th century the jurors voted by putting a pebble in either
the urn for the plaintiff or the urn for the defendant. In the 4 th century, the
jurors voted by placing in one urn a solid bronze disk or a bronze disk with
a hole in it. The verdict was decided by a simple majority, and a tie was a
victory for the defendant.

If the jury decided for the plaintiff, then the penalty phase would begin. In
some cases the penalty was determined by law, but in many cases the
plaintiff and the defendant each made a speech suggesting a penalty, the
the jury voted for the one they thought was more appropriate. Possible
penalties included damages to be paid to the plaintiff, a fine, confiscation
of property, atimia (disenfranchisement), confinement in stocks, exile, and
death.

Although there was no appeal procedure, it was possible that a defendant

who had failed to appear and was convicted by default could get a retrial if
he appeared within two months. It was also possible to sue a witness for
giving false testimony, and if this was proven the penalty could be revoked
or the false witness could be made to compensate the victim.

Many actions that we would consider crimes could result in private cases
(dikai) in Athens. Homicide in particular involved special procedures and
the Basileus presided over homicide trials because they were religious
matters. The Ephetai, a special panel of 51 members of the Areopagus,
served as the jury. The procedure involved a pronouncement that the
defendant must not enter temples, lawcourts, the Ekklesia, or the Agora.
The procedure was designed to cleanse miasma.

Theft is also an interesting case, as many thefts were dealt with summarily
by The Eleven, who were in charge of prisons and executions. They
were authorized to execute summarily certain kinds of thieves if they
admitted guilt. Also, forcible theft was an example of an action that could
result in both compensation to the victim and payment to the state.

We will also, later on this semester, look more closely at some charges
concerning sexual conduct. Among other laws, it was permissible for a
kyrios, the head of a household, to kill a man who seduced a free woman
of his household if he caught them in the act. Prostitution was not illegal,
but there were some restrictions.

There are a variety of other crimes listed in VerSteeg, including hubris

(outrage) and asebeia (impiety). It was also possible to use the procedure
called eisangelia to prosecute wrongs that were clearly wrong but did not
technically have a law against them.

Modern common law calls civil wrongs torts. Although Classical Athens
did not have this category, many modern torts were subject to legal
penalties in Athens. Examples include battery (dike aikeias), false
imprisonment (dike heirgmou), defamation (dike kakegorias), and a variety
of actions including breach of contract and property damage (dike blabes).

Crime and Punishment in

Ancient Greece and Rome

The University of Western

Ontario
Randall Pogorzelski