Administration of Justice in Author(s): Robert J. Bonner and Gertrude Smith Source: Classical Philology, Vol. 40, No. 1 (Jan., 1945), pp. 11-23 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/266231 Accessed: 20/08/2009 18:37

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http://www.jstor.org ADMINISTRATION OF JUSTICE IN BOEOTIA

ROBERT J. BONNER AND GERTRUDE SMITH

IN THE Homeric the conceded that throughout Boeotia the forces of central are enumer- little villages around one larger town con- ated first, and those of Boeotia head stituted a sort of synoecism, just as they the list. Twenty-nine towns are included, did in later times. So when pic- which together assembled fifty ships, with tures Ascra as a minor town attached to an average of one hundred and twenty Thespiae, he is giving a picture which may men to each ship. Among the twenty-nine be applied to all Boeotia. Hesiod's re- towns is Hypothebae, which is identified marks about the basileis are aimed specif- as the lower quarters of the town of ically at those of Thespiae and its neigh- Thebes, Thebes itself having been de- borhood, but the same aristocratic gov- stroyed by the Epigoni.1 Hypothebae ernment obtained throughout the Boeo- does not have a conspicuous position in tian towns. The poem indicates a far more the list. With the epithet "a well-built highly developed judicial system than city," it is included with no prominence the one known in . Recourse to over others in the list. It is clear that the peaceful settlement of disputes was prac- Boeotians are looked upon as. a unit. ticed in the Homeric period, but as yet is not grouped with the there was no compulsion to resort to arbi- Boeotian towns; but this city, along with tration. In such matters, however, public , follows immediately after the opinion is a strong force, and in the Works Boeotians with a muster of thirty ships. and Days it would appear that, if a claim At the time of the composition of the were brought against a man, he had to catalogue, then, Orchomenus was not a submit to arbitration and to accept the member of the Boeotian group. It is called decision of the basileis. This is the really Minyan Orchomenus. important element which puts the judi- Hesiod, our next authority on Boeotia, cial system in the age of Hesiod consider- presents to us in his Works and Days a ably in advance of that of Homer. Oblig- political, social, and economic picture in atory arbitration had been developed. an epoch, after the heroic age, of which Within each district the chiefs who made little is known.2 It is clear that the whole up the dominant aristocracy met with government rested in the hands of the some regularity in the chief city, and be- basileis, who were not only rulers but also fore them the people brought their dis- judges. Hesiod describes the situation in putes for adjudication.3 Witnesses were his own village of Ascra, but it may be commonly used to substantiate the claims of Both and the 1 ii. 494 if. On the position of Boeotia in the litigants. they litigants catalogue cf. Allen, The Homeric Catalogue of Ships gave their statements under oath. Side by (Oxford, 41 ff. 1921), pp. side with compulsory arbitration, the less 2 Hesiod is variously dated. Allen, Origins and Transmission of Homer (Oxford, 1924), p. 88, on formal system of the heroic age continued astronomical and other grounds, places his floruit to flourish; i.e., private arbitration, as dis- around 800 B.c.; the Cambridge Ancient History, III, Synchronistic Table I, places the age of Hesiod at 750 tinct from compulsory, continued to be 3 B.C.; Bethe, Einleitung zur Altertumswissenschaft, I, Bonner and Smith, Administration of Justice 281, brings him down to 650-600 B.C. from Homer to Aristotle, I (Chicago, 1930), 44-48. [CLASSICALPHILOLOGY, XL, JANUARY,19451 11 12 ROBERT J. BONNER AND GERTRUDE SMITH practiced. The evidentiary oath was em- This appears to be the natural interpreta- ployed in the settlement of disputes, and tion of Hesiod's account; but several other self-help still played an important part in explanations have been suggested, e.g., the redress of wrongs. Homicide continued that Hesiod had appealed the case,7 or at to be regarded as the concern of the rela- least reopened it,8 or that the case had tives of the victim; but the idea that been heard but not yet decided.9 But moral pollution was attached to homicide these suggestions do not alter the situa- may be assumed to have been familiar to tion materially. If Hesiod really believed Hesiod and his contemporaries. This was that the nobles were corrupt and would the first step toward the intervention of decide the case unjustly for the sake of the state in homicide cases. bribes, it is difficult to believe that he Hesiod's litigation with his brother would ever have consented to accept Perses is the only actual suit which has them as arbitrators, if he had not felt come down from this period. When their compelled to do so. He could either have father, who appears to have been a sub- refused to do anything further about the stantial farmer, died, the two brothers di- matter or have insisted on other arbitra- vided his property. Apparently, by brib- tors. As he did neither, it is likely that he ing the nobles who sat in judgment on the had to submit to the judgment of the case, Perses obtained more than his share. court. Hesiod represents Perses as improvident. The unwritten law administered by the He soon needed more money and threat- magistrates under the early aristocracy ened to bring further legal proceedings was naturally vague and was easily modi- against Hesiod. Just what the grounds for fied and interpreted to suit the interest of the action were to have been is not ap- the ruling class. In the seventh century, parent. Perhaps Perses hoped by fur- however, owing to the dissatisfaction of ther bribery to suppress the fact that he the people with the uncertainty and diffi- had already had his fair share and thereby culty of obtaining justice, there was gener- to acquire part of Hesiod's portion.4 In- al codification of the laws throughout stead of refusing to appear again before Greece.10 Among the early lawgivers the judges, as he might have done had it Philolaus is mentioned by Aristotle as been a matter of voluntary arbitration,5 having come from Corinth, as having set- Hesiod appealed to his brother to settle tled in Thebes for the remainder of his the case out of court by impartial award- life, and as having become a Theban aXX' avOL LCaKpLvW,!.EOaVELKOS iOe0flaL 6iKnS.6 legislator.1l Aristotle seems to point out in He proposed then arbitration by agree- the case of each lawgiver what he con- ment as an alternative to submitting the siders to be his outstanding contribu- case to the adjudication of the nobles. tions. So in the case of Philolaus, after 4 Cf. Burn, The World of Hesiod (New York, 1937), crediting him vaguely with laws on many p. 35. other things, he selects for special men- 5 Works and Days 37-39: 7 Ehrenberg, Die Rechtsidee im frihen Griechen- I6r ji'v y&p KXipov i8aTcrAl,eO',&XXa Tre WoXXd tum (Leipzig, 1921), p. 63. apTrad&wvOpfpets r&ya KvSalvwv BaaOtLXas 8 Die durch Urteil, Swpo&a'yovs ot TrvAe 8K.v iQOiXovOt&SLKaraat. Steinwenter, Streitbeendigung Schiedsspruch und Vergleich nach griechischem Schoemann emended the MSS reading iOiXovrL &K6rcaaa Rechte (Munich, 1925), p. 41. Schol. also so read) to iefXovrt i&Kaoraav, which as- (the 9 Hesiodos' Mahnlieder an Perses (Berlin, sumes that the case had already been decided. For the Kirchhoff, 1889), p. 43. arguments against the emendation cf. Sinclair, Hesiod, 10 Works and Days (London, 1932), ad loc. Cf. Bonner and Smith, op. cit., I, 67 ff. B Works and Days 35 f. 11Arist. Pol. 1274 a-b. ADMINISTRATION OF JUSTICE IN BOEOTIA 13 tion the nomoi thetikoi, the laws relating and by the end of the century she had to adoption, which he introduced especial- opened her own mint. ly to preserve the number of families. It About the constitution of the League has been pointed out that by permitting during this early period little is known. adoption Philolaus in effect introduced The Boeotarchs were the chief officials,16 testation in Thebes.12 and it is necessary to presuppose some From early times there had been a re- federal body with authority. For the indi- ligious union of the Boeotian towns, with vidual towns, Swoboda17 thinks it possible its center at the temple of Athena Itonia to push back to this period the situation near Coronea, where the festival of the which obtained later. So the chief body Pamboeotia was celebrated. And it is in each city was the college of polemarchs, generally conceded that from very early with primarily military functions. They times the cities of Boeotia were brought commanded the city's forces in war and together in a sort of loose federation, but also had the right to arrest anyone who evidence for a genuine political confedera- had committed a crime for conviction of tion is lacking until the first part of the which the death penalty was prescribed. sixth century. Material for the history of The office of archon, originally the chief Boeotia from the age of Hesiod until the magistrate, was reduced mainly to reli- sixth century is very scanty, but by 550 gious functions. The real deciding-power B.C. it is clear that there was a definite belonged to the boule, which had exten- federal coinage,'3 with the "Boeotian sive judicial powers and judged those who buckler" as its distinctive type. It has were arrested by the polemarchs. The been suggested that the Tanagraeans at polemarchs were closely associated with first minted all of the federal coins. By the boul6 and took part in its meetings, the end of the century, in addition to the probably acting as presiding officers. special federal coinage with the letters There is no trace of a general assembly BOI on the reverse, individual issues for in this period. six cities with the initial letters of the An early instance of international arbi- cities were being produced by the federal tration occurred in Boeotia in 519 B.C.18 mint. The six cities are Pharae, Aulis or The story is told by Herodotus'9 in one Acraephium,14 Haliartus, Thebes, My- of his typical digressions. The Plataeans, calessus, Coronea. From this union Or- being molested by the Thebans, applied chomenus held aloof and minted her own for aid to Cleomenes,20who happened to coins. Through this period Thebes was be in the neighborhood with a contingent steadily asserting her dominance in the of Lacedaemonian troops. Cleomenes re- federation. In 519 B.C. Plataea seceded jected the application and advised them and put herself under the protection of to apply to Athens, their near neighbor. Athens.15 But the superiority of Thebes 16 Ibid. ix. 15; x. 20. 3. 17 seems to have become well established, Hermann-Swoboda, Lehrbuch der griechischen Staatsaltertfimer, Part III (Tiibingen, 1913), p. 253. 12 Cf. Bonner and Smith, op. cit., I, 80, 6; n. New- 18We have accepted the date given in the Cam- man; The Politics of Aristotle, II (Oxford, 1887), 381. bridge Ancient History, IV, 78; cf. Raeder (L'Arbitrage 13 Greek Coins Seltman, (London, 1933), p. 55; international chez les Hellenes [Kristiania, 1912] pp. Head, Catalogue of Greek Coins, (Lon- 23-24), who puts the date at 510 or 509, as do others, don, xxxvi. 1884), p. 19 vi. 108. 14 Seltman cit., attributes the A (op. p. 56) to an 20 It has been plausibly suggested that on this issue from Aulis; Head (op. cit., p. xxxvii) to Acrae- occasion Cleomenes induced to join the Pelo- phium. ponnesian League (Larsen, CP, XXVII [1932], 147, 16 Herodotus vi. 108. n. 2). 14 ROBERT J. BONNER AND GERTRUDE SMITH

The Athenians gladly acceded to their frontiers of Plataea and departed. The request. Eventually an alliance was con- Thebans refused to accept the arbitration summated.21 and made an unsuccessful attack on the The Thebans, on becoming aware of Athenians and their allies, the Plataeans. these negotiations, sent an expedition The victorious Athenians proceeded to fix against Plataea. The Athenians at once the boundaries to suit themselves and went to the aid of the Plataeans; but, be- left for home. fore hostilities began, some Corinthians Thucydides tells us that during the appeared and proposed that the dispute Persian Wars a vvaor'ela o\Xl'yv av5pJv be submitted to them for arbitration. was in control in Thebes.25 According to Both Thebes and Plataea agreed to sub- Aristotle,26 this is the rule of a faction mit the dispute to the Corinthians as arbi- which has forcibly assumed control and trators. Just how the Corinthians hap- rules without regard to the law-i.e., an pened to be on hand is nowhere stated. unconstitutional, government which may Herodotus, by using iraparvx'ovres, is evi- be compared to the rule of the Four Hun- dently warning his readers that he is not dred or of the Thirty in Athens. From the concerned with the reason for the presence general tendency of the Boeotian cities to of the Corinthians.22It may be suggested Medize at this period, it has been inferred as a plausible guess that the Corinthians, that such vvaoaretat were in control in jealous of the growing power of Thebes, the other cities as well.27 sent an embassy to intervene in the affair At the end of the war the Boeotian informally, just as they did. League was dissolved, and Thebes's domi- The process of the arbitration is not nation was brought to an end. Other clearly set forth by Herodotus. Writing cities issued their own coinage.28 This loosely, not to say carelessly, he makes situation obtained until 457 B.C., when the decision of the political question con- the Spartans again forced the Boeotian tingent upon the delimitation of bounda- cities to be subordinate to Th6bes. But ries. This cannot be correct. Obviously, in the same year Athens, under the gen- the first duty of the arbitrators was to de- eralship of Myronides, defeated the cide whether Thebes had the right to Boeotians in the battle of Oenophyta29 coerce Plataea into joining a Boeotian and held sway in Boeotia for the next ten federation.23 years, during which the League was in In reaching their decision the arbitra- abeyance. Democracies were set up in the tors laid down the general principle that Boeotian cities-even in Thebes, which no Boeotian city should be forced to join Diodorus30 expressly says was not cap- the Boeotian League, which was obvious- tured by Myronides. Here again our ly dominated by Thebes: Eav O-rfaatovs knowledge of the various institutions BotCOTWV TOVS !J' fOVXOCU'YovsiS BotuCTOUb 25 Thuc. iii. 62. 3-4; cf. Plutarch Arist. 18; Paus. rEkEELv.24 Next the arbitrators fixed the ix. 6. 2. 26 Pol. 1272 b 7. This oligarchic regime was urged for their Cf. 21 Larsen, in Pauly-Wissowa, XIX, 824, s.v. 2reptiOKOL. by the Thebans as an excuse Medizing. Paus. ix. 6. 2, who says that, if the Persian War had 22 Raeder cit., p. 24) believes that they con- (op. occurred during the rule of the Peisistratidae, Athens stituted a part of the forces of Cleomenes. But this would doubtless have gone over to the Persian king. view is quite unlikely, as there is nowhere in Herod- For an apology for the Theban attitude at this time otus' account a suggestion of a threat of force. cf. Hermann-Swoboda, op. cit., p. 254, n. 4; Grundy, 23 la Cf. ibid.: "Ils [the arbitrators] tracerent ligne The Great Persian War (London, 1901), pp. 229 if. frontiere apres avoir decid6 que les Th6bains devrai- 27 Hermann-Swoboda, op. cit., p. 254, n. 5. ent laisser en paix les Beotiens qui ne voudraient pas 28 entrer dans la Ligue B6otienne." Head, op. cit., p. xxxviii. 29 30xi. 83. 1. 24 Herod. vi. 108. 5. Thuc. i. 108; Diodorus xi. 81. ADMINISTRATION OF JUSTICE IN BOEOTIA 15 under which the cities were governed is doubtedly in addition to the senates there pitifully meager. The dissatisfied oligarchs, were also local courts. exiled from their cities, gathered at There is no reference to a trial in this Thebes, and there a counterrevolution period which affords information about broke out, as happened also in the operation of the legal system in and Orchomenus. It was to quell these Boeotia. The trial33 of the few surviving revolutions that an Athenian force ad- Plataeans in 427 B.C. was not really a vanced into Boeotia in 447 B.C.The army Boeotian trial, except that Boeotians was defeated at Coronea, and Athens was were the defendants. The Lacedaemonian forced to relinquish her pretensions to commander of the forces besieging Pla- land empire. The Boeotian League was re- taea was instructed by not to take habilitated.31 And for this period, owing the city by storm but to secure a volun- to the discovery of the so-called Hellenica tary surrender. If peace was ever made on Oxyrhynchia, the constitution is known condition that captured cities were to be in some detail. This constitution lasted restored, the Lacedaemonians desired to from 447 until the King's Peace in 387 be in a position to refuse to give up Pla- B.C. It has been discussed frequently and taea. Accordingly, a herald was sent to the at great length, and there is no need for Plataeans with a proposal that they sur- repetition of the material here.32The only render to the Lacedaemonians on condi- feature of the federal government which tion that they be tried by them. The Lace- is pertinent to the present discussion is daemonians promised that they would the federal court. "To speak generally, punish only the guilty: roVs re aitKoVS it was in proportion to the distribution KOXaletv 7rap&a 3Kiq)v 8t ovlYCa.34 The Pla- of their magistrates that they enjoyed taeans surrendered on these terms; but the privileges of the League, made their when a commission of five Spartans ar- contributions, sent judges, and took part rived, they did not hold a regular trial but in everything whether good or bad." The simply asked this question: "Have you duties of these judges are not specified, rendered any service to the Lacedaemo- but they must have tried all cases which nians in this war?" It is true that as a re- involved offenses against the League. Un- sult of their protests the Plataeans were doubtedly the Boeotarchs and the.other permitted to make a defense, to which the federal officials were responsible to this Thebans replied. But their plea was of no court. There must also have been provi- avail. The judges called up the defendants sion for the local administration of jus- in turn and asked the same question. As tice. Probably the local senates settled they all answered "No," they were forth- lawsuits as they did later and as they very with condemned to death. One gets a likely did in the earlier period. And un- very definite idea that, while this was not 31For the coinage of this period cf. Head, op. cit., technically a League trial, it was actually p. xxxix. handled by Sparta as head of the Pelo- 32 Hell. Oxy. xi. Grenfell and Hunt, Oxyrhynchus Papyri, V (1908), 223 if.; Bonner, "The Boeotian ponnesian League. This is clearly indi- Federal Constitution," CP, V (1910), 405 if.; "The cated by the asked the defend- Four question Senates of the Boeotians," ibid., X (1915), 381' ants: "Have if.; Goligher, "The Boeotian Constitution," CR, XXII you rendered any service to (1908), 80 if.; Walker, Hellenica Oxyrhynchia (Ox- the Lacedaemonians and their allies in ford, 1913); Swoboda, "Studien zur Verfassung this war?" Boiotiens," Klio, X (1910), 315 if.; Busolt-Swoboda, Griechische Staatskunde (Munich, 1920-26), pp. 1414 With the Peace of Antalcidas in 387 if.; Hermann-Swoboda, op. cit., pp. 256 if.; Bussmann, the Boeotian Die biotische Verfassung (Fulda, 1912); Cambridge B.C., League was broken up. Ancient 56. 33 History, VI, Thuc. iii. 52-68. 34 Ibid. 52. 2. 16 ROBERTJ. BONNERAND GERTRUDE SMITH

There is no longer reference to the Boeo- diction, and the method of recruiting tarchs, the federal council, the federal them are unknown. The boule or council court, or the federal troops. Each city was also had judicial powers. now supreme with regard to both local In 382 B.c. the Cadmea was captured and foreign affairs.35 The local govern- by the Spartan Phoebidas with the con- ments were termed wvvao-reZ?aby Xen- nivance of Leontiades, one of the pole- ophon.36There is no detailed information marchs.41Leontiades at once took meas- for the government of this period. The ures to deal with the Thebans, who were archon, selected by lot, in all probability scandalized by the high-handed act of for one year, served to date the year. His Phoebidas. One of the chief leaders of the duties were apparently entirely religious. anti-Spartans was Ismenias, a man of The chief officials in each city were the means,42whom Leontiades ordered to be polemarchs, probably three in number arrested and confined in the Cadmea. In and chosen by election. This is an infer- a speech to the boule he justified his ac- ence from the fact that for Thebes, the tion by claiming that, as polemarch, he only city for which there is information, had authority by law to arrest anyone the polemarchs in 382 B.C., Ismenias and who seemed guilty of deeds deserving of Leontiades, were the party leaders, a death: "Hence I arrested Ismenias as a situation which seems unlikely if their warmonger." Several hundred Thebans, choice was left to the accident of the lot. alarmed by the fate of Ismenias, sought Further, when Ismenias was put to death, refuge in Athens, among them Androclei- the Thebans elected (ELXovro) another to das.43 take his place.37The polemarchs were as- The right of arrest carried legally the sisted by a secretary.38 That the pole- right to prosecute. Ismenias was in the marchs had important judicial powers Cadmea in the hands of the Spartan gar- seems clear. These officials could arrest rison and could, one imagines, have been anyone who appeared to them to be com- easily eliminated by an overawed boul6 mitting a crime deserving of the death or a selected dicastery. But there was an penalty.39 So Leontiades arrested Isme- element in the situation which no doubt nias on a charge of instigating war. And determined Leontiades not to act pre- in 379 B.C., at the time of the recovery of cipitately. What would Sparta do about the Cadmea, Phillidas, the ringleader in the high-handed and unwarranted act of the plot, was enabled to gain entrance to Phoebidas? If Phoebidas' action was re- the prison and to release the anti-Spartan pudiated, Leontiades would be in a dan- leaders by telling the keeper of the prison gerous position. Leontiades44 betook him- that he was bringing a man from the pole- self to Sparta. Here he found the ephors marchs for incarceration.40 Courts must and the people generally much incensed have existed in each of the cities; but by the action of Phoebidas.45 their number, their personnel, their juris- 41 Whether there were two or three polemarchs is uncertain (Busolt-Swoboda, op. cit., p. 580; Marchant 35During this period there were coin issues from and Underhill, Xenophon, Hellenica (Oxford, 1900), on many different mints (Head, op. cit., p. xli). For trade v. 2. 25). convenience the Boeotian buckler was retained as the 42 Cf. Marchant and Underhill, op. cit.; cf. Hell. obverse type, but each city adopted its own reverse Oxy. xiii. Androcleidas was also a prominent anti- (Seltman, op. cit., p. 158). Spartan. 36 Hell. v. 4. 46. 43 Xen. Hell. v. 2. 31. 37 Ibid. 2. 32. 38 Ibid. 4. 2. 44Leontiades' family was closely connected with 39 Ibid. 2. 30; cf. Bussmann, op. cit., p. 18. Sparta (Marchant and Underhill, op. cit., on v. 2. 25). 40 Hell. v. 4. 8. 46Xen. Hell. v. 2. 32. ADMINISTRATION OF JUSTICE IN BOEOTIA 17

At a meeting of the Spartans,46 Ages- The composition of the court that tried ilaus took the view that expediency alone Ismenias presents an interesting problem. should be the test of such actions. If an The Peloponnesians sent to Thebes a com- act was beneficial to the state, it should mission composed of three Lacedaemo- be adjudged good, otherwise it should be nians and one from each of the allies both disclaimed. Leontiades, on the other large and small.50 Marchant and Under- hand, undertook to justify the view of hill make no attempt to solve the prob- Agesilaus by pointing out in detail the lem; they content themselves with refer- many hostile and unfriendly actions of ring to a passage where practically the Thebes in her relations with Sparta.47 same phraseology is used in a political As a result of these arguments, the Spar- sense.51On the eve of the Peloponnesian tans decided to retain possession of the War the Spartans held a meeting in wliich Cadmea; but they also brought Phoebidas they listened to the complaints of their to trial, deprived him of his command, allies against Athens. Then in their own and fined him 100,000 drachmae. The assembly they decided that the Athenians Hellenes were amazed at the cynical in- were wrongdoers and had broken the consistency of a people that profited by a treaty.52 Later, they had all their allied deed and at the same time punished the states who were present vote on the ques- doer.48The Spartans also decided to bring tion of war or peace. The majority was Ismenias to trial. The process of the trial for war.53 has some interesting features. There is one point of resemblance be- Ismenias was arrested as a warmonger, tween the group that voted for war and but at the trial he was accused of Mediz- the court that tried Ismenias that is sig- ing, of being a guest-friend of the Persian nificant. In both cases the bodies repre- satrap to the injury of Greece, and of re- sent the Peloponnesian League. The par- ceiving a share of the money which Phar- ticipation of all the League members in nabazus gave Timocrates the Rhodian the trial would seem to point to an expan- to bribe influential leaders in Athens, sion of original judicial functions on the Thebes, Corinth, and Argos to stir up the part of the League.54If that be true, the against Sparta. He failed court that tried Ismenias was simply a to persuade the court that he was not a representative commission of the League very dangerous man and was condemned assembly: three Spartans and one from to death. It was a travesty of justice that each of the allies both large and small.55 Sparta should accuse any Greek of Med- After the recovery of the Theban Cad- izing after the King's Peace (387 B.C.). The real reason for the condemnation of Athenians as recipients of the Persian gold. So also Plut. Agesilaus 15 and Paus. iii. 9. 8; cf. Oxyrhynchus Ismenias was doubtless his part in bring- Papyri, V, pp. 115 ff. ing on the Corinthian War in 394 B.C.49 50 Xen. Hell. v. 2. 35 ff. 51 46 For the meaning of CKKXirTOUSsee Marchant and Thuc. i. 125. Underhill, op. cit., v. 2. 33; ii. 4. 38. 52 Ibid. 87. 47Xen. Hell. v. 2. 33-34. 63 Ibid. 125. 48 Plut. 6. 54 Cf. Larsen, CP, XXVIII (1933), 269. 49 Hell. Oxy. xiii; Xen. Hell. v. 2. 35. According to 55Xen. Hell. v. 2. 35. Plut. Pelopidas 5 says that ibid. iii. 5. 1-2, Tithraustes sent Timocrates on his Ismenias was tried at Sparta, but Xenophon puts the mission, but the author of Hell. Oxy. ii. 5 names trial in Thebes. Marchant and Underhill accept Pharnabazus as the satrap. The date is given as 397 Xenophon as the more reliable authority. In a sense or 396, instead of 395. Xenophon also says that the the trial of the Plataeans by a commission of five Athenian leaders were not bribed. Here again there is Spartans affords a precedent for this case (cf. above, disagreement. Hell. Oxy. ii. 2 specifically mentions the p. 15). 18 ROBERT J. BONNER AND GERTRUDE SMITH mea from the Spartans in 379 B.C.,democ- his functions were limited to the sphere racy was established in Thebes.56In course of religion. The really important officers, of time this became the established form as in former times, were the Boeotarchs, of government in the other Boeotian whose number under the rehabilitated cities.57 And in the meantime Thebes set federation was diminished to seven.66 about the rehabilitation of the Boeotian Citizenship in any one of the cities in the union. It has been held, on the one hand, federation automatically brought about that Thebes formed a synoecism with citizenship in the federation. Each city herself as the head and, on the other hand, was independent and directed its own that she resuscitated the federation.58 affairs. About the organization of each The second is the correct view.59 The city little is known. That there was a name Botworotserved to designate the boul6 is clear from the story of Euphron, federation just as in the earlier period.60 who was murdered during a meeting of A new federal coinage was instituted, the the Theban boule. His assassins were coins bearing the name neither of the tried before the boule.67It may reasonably Boeotians nor of the Thebans but only be assumed that in addition to the boule that of a federal magistrate, a Boeotarch,61 there were courts in each of the cities of and with the Boeotian buckler on the ob- the federation for the trial of local cases. verse as always. In place of the four In 377 B.C. Agesilaus led an expedition senates of the preceding period, the gen- against Thebes, but no decisive action eral assembly appears, designated b5ajos occurred. As he retired, Agesilaus stopped rCw BotLoru in the inscriptions.62 This at Thespiae, where he found the citizens body took cognizance of crimes against divided into two factions, the philo- the federation.63 There is no trace of a Laconian faction wishing to kill their op- federal senate in this period. But there ponents. Agesilaus reconciled the two fac- was a federal court composed of judges tions and forced them to give oaths to one selected by lot which had jurisdiction in another.68 This practice is by no means cases against federal officials.64 These unknown in Greek procedure, i.e., the use judges must have been drawn from the of a foreigner as arbitrator in a dispute.69 federal assembly. Among the federal As Plutarch tells the story, it appears that officials, the archon held the highest Agesilaus took the initiative, but in rank and gave his name to the year,65but bringing about a settlement between the in the 66 Plut. Pelopidas 12; Xen. Hell. v. 4. 46. two parties he was certainly acting 57 Cf. Hermann-Swoboda, op. cit., p. 262. capacity of arbitrator. 58For full bibliography cf. Hermann-Swoboda, op. There was a law in force in Boeotia ac- cit., p. 264, nn. 7 and 8; Busolt-Swoboda, op. cit., p. 1426, n. 2. cording to which a Boeotarch who failed 59For the evidence cf. Busolt-Swoboda, op. cit., to relinquish his command at the end of p. 1426, n. 3. his year of office was liable to the death 60 IG, VII, 2407, 2408, 2418; Diod. xv. 80. 2; xvi. 85. 3. penalty if convicted. Plutarch70 says 61 Head, op. cit., p. xlii; Seltman, op. cit., p. 158 and 66IG, VII, 2407, 2408; Diod. xv. 52. 1; 53. 3; Paus. P1. XXXIII, 12, 13. ix. 13. 6-7. Seltman (op. cit., p. 158) erroneously refers to the eleven annual Boeotarchs of the for this 62 IG, VII, 2407, 2408. Cf. KOLVfIarb0voos T&o BOLwrio League Busolt-Swoboda, op. cit., p. 1429). (Diod. xv. 80. 2); rd Kotv6v avvepwLOv (Diod. xv. 29. 7; xvi. period (cf. 85. 3). 67 Xen. Hell. vii. 3. 5. 63 Diod. xv. 79. 5. 68 Ibid. v. 4. 55. 64Cf. the trials of and Pelopidas 69 Cf. Bonner and Smith, CP, XXXVIII, 11; cf. (below, p. 19). above, p. 14. 65 IG, VII, 2407, 2418. 70 Pelopidas 25. ADMINISTRATION OF JUSTICE IN BOEOTIA 19 definitely that Pelopidas, Epaminondas, real defense. Ile asserted that deeds spoke and others (rovs ovvatpxovras) were brought louder than words. If he must put in a to trial under this law and were acquitted. plea, he simply requested the judges, if Pelopidas, being tried first, was on that they condemned him, to inscribe their account in serious danger. verdict on his tomb, that the Hellenes Before further discussion of the trial a might know that Epaminondas had forced divergent view of the charge must be the Boeotians against their will to lay noted. Cary says: "The true charge was waste with fire Laconia, which had not probably that Epaminondas had exceeded been ravaged for five hundred years, that his instructions on his first Peloponnesian he had restored the Messenians after two campaign and had carried the war beyond hundred and fifty years, and that he had the territorial limits assigned to him."7' unified the Arcadians and had restored The source cited by Cary is Diodorus.72 independence to the Hellenes. All these This seems to be the correct view of the things had been accomplished in the cam- charge. paign which was in question. This un- There is at least one unusual feature in paralleled defense so surprised the judges the process of the trial. Epamrinondas73 that, convulsed with laughter, they left bade his fellow-commanders plead in the court without casting their ballots. court that he accepted full responsibility No votes, of course, meant acquittal. In for the conduct of the campaign. Any modern parlance, the case was dismissed.75 court, ancient or modern, would expect There was formerly lack of agreement some evidence to support the claim of as to the status of the court that tried Pelopidas and his codefendants that Epam- Pelopidas and Epaminondas. Plutarch76 inondas applied pressure (c&skKf3LacOevras) calls the court rO S&KatarppLov.This is not to induce them to do an illegal act. So far an explicit term. Pausanias is more def- as we know, the only authority Epami- inite when he says: X'yovTat 65 ol aLKClELY nondas possessed, beyond that of his offi- XaxbvrTs oibe alpX?v Trepl avTroV [Epaminon- cial rank, was his military skill and his das] Oa-OaLrTv 414jov.77It is now conceded moral force. It is certain that Epaminon- that it was a federal court drawn by lot das did not appear as a witness. Pelopi- from the citizens as occasion arose. Cary das, a forceful and vigorous speaker, must presents78the most convincing argument. have made an effective defense without Menecleides had enough political power Epaminondas' direct aid. to exclude Epaminondas from the office Next came the trial of Epaminondas of Boeotarch. On one occasion he pro- himself. According to Cornelius Nepos,74 posed to honor one Charon for a very "no one thought he would appear for minor victory over a small body of trial for no one could imagine what he Spartans. Pelopidas, as prosecutor, chal- could say in his defense." Under the cir- lenged the proposed measure as uncon- cumstances this was not an unnatural stitutional. He was successful in his ac- view. However, Epaminondas made no tion. He claimed that it was not a Theban

71 CQ, XVIII (1924), 182-84. 75 Plut. Moralia, p. 194, sec. 23; cf. Nepos, loc. cit. 72 76 XV. 72: erreveyKaVTrov ovp avru lrpoSoatas eyKX7ILia. The Pelopidas 25. 2. date of the trial is 369 B.C. (Cary, op. cit., p. 182). 77 Paus. ix. 14. 5-7. Cf. Hermann-Swoboda, op. cit., p. 268, n. 4; Beloch, 78 Griechische Geschichte2, III, 2, p. 247. Op. cit., p. 184; cf. Busolt-Swoboda, op. cit., p. 1428, n. 7; Hermann-Swoboda, op. cit., p. 267, n. 7. 73 Plut. Moralia, p. 194, sec. 23. Undoubtedly these judges were drawn from the feder- 74 Epaminondas 8. al assembly. 20 ROBERT J. BONNER AND GERTRUDE SMITH custom to honor a single individual for a Thebes to get aid in banishing the aristo- victory but for the whole country to have crats and supporting his tyranny. Some the honor. The case was tried in a Theban aristocrats, fearing he might succeed, court, which inflicted so heavy a fine on followed him and, seeing him in confer- Menecleides79 that he was unable to pay ence with the authorities, took a desper- it. Plutarch makes the statement80 that ate chance and slew him in the Cadmea Menecleides, an orator of some distinc- while the boule was in session. tion, continued to accuse and calumniate The authorities at once brought his his betters, "even after the trial" of assassins before the Theban boule. The Pelopidas and Epaminondas. It may rea- accusation ran as follows: sonably be assumed from this statement Fellow citizens, we bring the slayers of that he was the prosecutor. In these two Euphronto trial on a capital charge. Wicked Boeotian trials alone do we know the men usually try to commit their crimes in names of the prosecutors. secret. But these men had the hardihoodto When Pelopidas and Ismenias were kill Euphron in the presence of the magis- captured and imprisoned by Alexander of trates and you, the membersof the boule. If are not matters will Pherae, the Thebans sent an army to they adequatelypunished When the leaders of the inva- cometo such a pass that men who wish to deal . with the authoritieswill fear to come to the sion failed to accomplish anything, they And the city itself will sufferif we are not retired The fined each city. disgracefully. city permittedto knowfor what purposemen come drachmae.81This occurred of them 10,000 to our city. in 367 B.C. when the governments of the Boeotian cities had become democratic All of the defendants except one under the restored League. The use of pleaded "Not guilty." The defendant made a consider- 7 rboXsseems to point to the Theban as- who pleaded "Guilty" able in his defense. "I slew Eu- sembly's acting in a judicial capacity. speech After the overthrow of the Spartan phron, O Thebans, in the belief that I was a deed and that supremacy, Thebes, following the policy doing righteous you would it as such." Here he cites a of Sparta, stationed a harmost in Sicyon. regard Archias and In 367 B.C. a Sicyonian named Euphron, precedent. The cases of Hy- he refers do not with the aid of Argives and Arcadians, pates, however, to which When in set aside the ruling oligarchy and pro- constitute a legal precedent. Thebans under the claimed a democracy.82Euphron and five 379-378 a group of of and others others were appointed generals. Of these leadership Pelopidas he assassinated some and banished others. planned to overthrow the local government in the In the ensuing civil tumult, Euphron was supported by Spartan troops hunted down and expelled from the city. As long as the Cadmea, they simply sem- Thebans still held the citadel, Euphron assassinated these men without any of a trial.83 The defendant could not hope to regain his tyranny, so blance pro- ceeds to make various accusations with ample funds for bribery he set out to against that he was both a 79 Cf. ypai) irapav6i.wv in Athenian practice. The Euphron, charging language of Plutarch (7d eVUKoavTceiv) suggests that traitor and a tyrant. He had handed over Menecleides was a professional prosecutor such as flourished in Athens. the port of Sicyon to the Lacedaemonians, 80 Pelopidas 25. 3. enslaved, put to death, and banished his 81 Ibid. 29: &Kievwv Iv tlKaaroyv j roXLs lvplaLsLSpaX/aisf opponents. In the end the murderers were e . ell. vi. . 82 Xen. Hell. vii. 1. 44 ff.; 3. 1 ff. 83 Plut. Pelopidas 11. ADMINISTRATION OF JUSTICE IN BOEOTIA 21 acquitted. Xenophon, however, observes For the period following the battle of that the Sicyonians brought his body Chaeronea in 338 B.C.there is evidence of home and buried him in the market place the continued existence of the Boeotian and paid him pious honors.84 federation,89 but there is little that is of The assassins of Euphron were tried interest for legal antiquities. That the by the Theban boule. This was the city federal assembly continued to have judi- boule of Thebes, which, like all local cial functions-at least the power of in- senates, had the right to exercise criminal flicting punishment-is indicated.90 By jurisdiction within its own territory.85 the beginning of the second century the Marchant and Underhill86 regard the Boeotarchs were no longer the chief offi- apXovTes who participated in the trial as cials, for they had been superseded by a Boeotarchs. This view can scarcely be strategos, who was chosen annually by correct, as the local officials were pole- the assembly.91 marchs, who had both military and judi- The individual cities had governments cial functions.87 Boeotarchs would natur- modeled on that of the federation, al- ally deal only with offenders against the though they retained the boule, with League. judicial functions, just as in the period In 364 B.C.some Theban exiles planned before Chaeronea.92 It is apparent from to establish an aristocratic form of gov- inscriptional evidence that the leasing of ernment in the city. They persuaded sacred property was regulated in Greek three hundred knights of Orchomenus to towns by decrees of the people. A badly join in the enterprise. That suspicion mutilated inscription from Thespiae deals might be avoided, a day was chosen to with this subject. As partially restored by carry out the plot which was fixed for a Lolling,93 this provides for various fines review under arms. But the plot became for infractions of the regulations relative widely known outside the ranks of the to sureties and to rent payments. These original plotters. In' terror they aban- fines appear as once and a half the amount doned the plot and betrayed to the Boeo- or double the amount. Foucart, by com- tarchs their accomplices, the three hun- parison with an inscription of Tegea, is dred Orchomenian knights. For this serv- of the opinion that lines 17-19 contain a ice they secured immunity for themselves. prohibition against taking disputes rela- In modern legal parlance, they gave evi- tive to rents before any other town than dence against the defendants, who were Thespiae.94 The imposition of fines pre- convicted and executed. This appears to supposes some investigation. Such in- be the only instance in Boeotian practice vestigation, even the most simple and in- where accused persons turned state's evi- formal, must be regarded as a trial.95 So dence. The case was tried in the ecclesia. several building inscriptions from Leba- The Thebans took this case as an excuse dea96provide for exclusion from the work for and the of attacking destroying city 89 For Boeotian coinage after 338 B.C. cf. Head, Orchomenus. They slew the male adults op. cit., pp. xlii ff. and sold the women and children.88 'o Livy xlii. 43. 8-9; Polybius xxvii. 2; Diogenes Laertius ii. 142; Busolt-Swoboda, op. cit., p. 1435, n. 84 vii. 3. 7-12. The date of the trial was 367 B.C. 5. (cf. Busolt-Swoboda, op. cit., p. 400). 91 Busolt-Swoboda, op. cit., p. 1436. 85 Hermann-Swoboda, op. cit., p. 267, n. 4. 92 Ibid., p. 1439. 93 IG, VII, 1739. 86 Op. cit., on vii. 3. 5. 94 Foucart, BCH, IX 412 if. 87 Hermann-Swoboda, op. cit., p. 253. (1885), 95 88 Diod. xv. 79. 3-6; cf. Grote, History of Greece, Cf. Bonner and Smith, op. cit., I, 121. X, 426. 96 IG, VII, 3073, 3074, 3075. 22 ROBERT J. BONNER AND GERTRUDE SMITH if workmen fail in performance and also regarded as one of the cornerstones of for fines if the contractors fail to carry Athenian democracy.100It is, of course, out their contracts. The naopoioi are in a natural development in democracy, and charge of the work and impose the fines. its appearance in these inscriptions is by As the chief municipal officials, the no means its first appearance in Boeotian polemarchs appear in the inscriptions. legal history. The activities of Mene- They had charge of freedmen and had cleides?1l and the prosecution of Mene- power to punish those who molested them. cleides by Pelopidas for unconstitutional There is extant a large group of manumis- legislation furnish examples of the volun- sion decrees from various parts of Boeo- teer prosecutor. In Athens the encourage- tia.97 These decrees are similar to those ment of citizens to prosecute public of- from other parts of Greece in that the act fenders resulted in a serious abuse, name- of manumission consists in the dedication ly, the development of the sycophants. or sale of the slave to the divinity of the The case of Menecleides shows that a local shrine, the dedication being made similar abuse had developed in Thebes. through the synedrion in accordance with Plutarch102uses the term rO6avKoavretv the law. This assures the slave who has of his activities. Again, the people of received his freedom of the protection of Orchomenus are said by Plutarch"03 to his rights. Certain provisions appear in have employed a Roman sycophant to these decrees which afford a clear picture prosecute the city of Chaeronea in 87 B.C. of the procedure to be followed in case a after the murder of some Roman soldiers manumitted slave was molested. Authori- by Damon. This is undoubtedly a refer- ty was given to various officials to seize ence to a professional prosecutor. the culprit and to fine him. The penalty A Roman captain made unwelcome seems always to have been a fine. One advances to a youth of Chaeronea named decree provides for a fine of one thousand Damon.104 The young man with some drachmae in case the manumitted slave companions set upon the captain and is molested.98 The officials involved are slew him and a number of his soldiers. The sometimes the priests of the local shrine, boule at once met and passed sentence of the hierarchs, and the synedroi. Some- death upon Damon and his accomplices times they are the priests, the polemarchs, in absentia. That same evening the cul- and the synedroi. Frequently there is also prits attacked and killed the members of a clause to the effect that anyone who the boule in the hall where they were at pleases (o6 leiouevos) may join in the supper.105 prosecution. This is interesting as recall- Damon and his accomplices escaped ing the provision of Solon in Athenian and proceeded to ravage the neighboring procedure that any citizen might claim 100 Cf. Lofberg, Sycophancy in Athens (disserta- legal satisfaction on behalf of anyone who tion, Chicago, 1917), p. 1; Bonner and Smith, op. cit., was wronged.99This provision was always I, 167 ff. 101 Cf. above, p. 19. 97 Cf., e.g., IG, VII, 3080; Buck, Greek Dialects2 102 Pelopidas 25. (Boston, 1928), No. 45; Schwyzer, Dialectorum Grae- 103 Cimon 2. 104 Ibid. 1. 1923), No. carum exempla epigraphica potiora (Leipzig, 105Bussmann cit., p. 12) wrongly dates the No. (op. 512; IG, VII, 3303, 3304, 3305; Buck, 46; Schwy- event in the third century B.c. Evidently he was mis- No. zer, No. 516; IG, VII, 3352; Buck, 47; IG, VII, led by the mention of an invasion of the Gauls in 278 No. 3200; Buck, No. 48; IG, VII, 3081; Schwyzer, B.C. But the mention of Lucullus definitely puts the VII, 3198, 3199. 511; IG, date in the first century B.C., probably about 87 B.C. s9 IG, VII, 2872. (Larsen, in An Economic Survey of Ancient Rome 99Aristotle Ath. Pol. 9. 1; Plut; Solon 18. [Baltimore, 1933-40], IV, 307). ADMINISTRATION OF JUSTICE IN BOEOTIA 23 country. Evidently there was some criti- dence of Lucius Lucullus. This he did by cism of the government of Chaeronea for writing to him and obtaining a report of not apprehending the murderers. At any his investigation of the Damon affair. On rate, Lucius Lucullus, a Roman official, the basis of his evidence, obviously trans- happened to come to Chaeronea with an mitted to the court in writing, the city of armed force and stayed to investigate the .Chaeronea was acquitted and escaped whole occurrence. He found the city was serious punishment. In gratitude the citi- in no wise to blame but rather had itself zens erected a marble statue of Lucullus suffered.'06Meanwhile, Damon, who con- in the market place. tinued to terrorize the environs of Chae- From the foregoing study it is obvious ronea, was enticed into the city by the that the evidence for the political and government and slain in a bath. But this judicial history of Boeotia is meager and was not the end of the affair. The people often unsatisfactory. But one point of Orchomenus, being at variance with emerges clearly, namely, the tendency their neighbor Chaeronea, secured the of institutions to survive despite revolu- services of a Roman informer'07to prose- tions and conquests with their attendant cute the city of Chaeronea as if it were an changes in the form of government. As individual for the murder of the Roman has been noticed elsewhere, institutions soldiers slain by Damon. The trial was arise and develop most frequently by a conducted by the governor of Macedonia. process of evolution and rarely disappear The advocates appointed to defend the without leaving some trace or influence, city asked the governor to secure the evi- even where revolution has intervened.108

106 Plut. Cimon 1. UNIVERSITY OF CHICAGO 107 Plutarch (ibid. 2) uses the word avKoavrrT7s. 108 Cf. Bonner and Smith, op. cit., I, vii.