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But the most important political service rendered by these corporations was the preservation, by means of their register, of a genuine list of Attic citizens. For every Athenian was obliged to be a member of some township, and no man could be admitted to exercise any civic rights, until his name was entered in the roll. In the days of their prosperity the Athenians were proud of their citizenship, and careful to exclude those who were not entitled to it from its honours and advantages. Occasionally it was conferred, by way of distinction, upon some foreigner who had done service to the country; as upon Sadocus, the Thracian prince, their ally, in the beginning of the Peloponnesian war; and in later times the honour became more cheap, and was conferred upon adventurers like Charidemus; but those were generally cases where it was a mere honour, not attended with the advantages which a resident at Athens would derive from it, and which it was always more difficult to obtain. There were exceptional instances; such as that on the first creation of the townships, when Clisthenes, in order to strengthen the popular party, made a new creation of citizens, including even slaves; and the occasion after the plague, when, the strength of the nation having been wasted both by war and by disease, it became necessary to recruit it by new blood. But, setting aside these exceptional cases, we find that the Athenians took the utmost precaution by law, to prevent the intrusion of aliens into their community.
The son of an Athenian citizen, upon attaining his eighteenth year, or as soon after as was thought proper but not (it seems) after the completion of his twentieth year was taken by his father or guardian to a meeting of his fellow-townsmen, to have his name entered in the register of the Demus. This was called the heritable register,1 because the entry therein entitled him to take possession of any property which he became heir to. Commonly those townsmen would attend the meeting, who were friends or acquaintances of the candidates for enrolment: in case of any meditated opposition, there would be a large attendance. The father or guardian proved the birth and civic origin of the youth. Any member was at liberty to object upon good ground, such as illegitimacy, or foreign extraction either by the father's or mother's side. The members present were sworn to adjudicate according to law, and, after hearing the evidence, the majority decided whether the party objected to should be enrolled or not. Upon his admission to the register, the youth became a member of the township, and entitled to his heritable and civic rights. His name was at the same time entered in the assembly-list,2 kept by the demarch, showing who were entitled to take part in the popular assembly. He was then a full citizen in every respect; only he could not, serve on juries, nor hold offices of state, until the age of thirty.
(1) ληξιαρχικὸν γραμματεῖον. To enter upon an inheritance was called λαγχάνειν κλήρον, and an inheritance λῆξις. (2) πίναξ ἐκκλησιαστικός.
His civic designation and full address (as we should say) was his own individual name joined to that of his father and his township-thus"Demosthenes, son of Demosthenes, of Pæania." Of the importance of this title we have had an illustration in the case of Mantitheus against Bootus.
When an orphan was introduced to his fellow-townsmen for enrolment before his twentieth year, Schömann thinks that, as he would take immediate possession of his inheritance, he underwent a personal examination, to show that he had arrived at a state of manhood, so that, if he were approved, he would be at once admitted to his majority; otherwise, it would be postponed for some time longer. As to this however there is a good deal of obscurity.
Whoever, not being a lawful citizen, presumed to act as one, whether his name was in the register or not, might be prosecuted and severely punished, as I have already shown: (Volume III. Appendix viii. page 345). As a further precaution against the admission of spurious members into the corporate bodies, they were required occasionally by a decree of the people to revise their registers, and to expunge those names which should appear, either by fraud or by mistake, to have been improperly entered. When any such revision was ordered, the townsmen met on the appointed day in the city of Athens the names were called over: if any one was objected to, the grounds of objection were stated, and the case was heard, with the evidence on both sides; the hearing and adjudication took place in the same way as upon an objection to an original enrolment.2 A member who was ejected might appeal to a jury; but, if he failed to prove his title, he was sold for a slave.
Our knowledge upon this subject is derived mostly from the oration of Demosthenes against Eubulides; composed by him for one Euxitheus, a member of the Halimusian demus, who, being ejected on a revision, had appealed to the Athenian court. He complains strongly of the unfair and illegal manner in which he had been treated at the meeting; imputing his expulsion to a cabal got up against him by Eubulides, whom he had made his enemy by giving testimony in a court of justice. Eubulides (he says) had contrived that his case should be brought on late in the day. Out of seventy members who had been present in the morning, forty had gone home, as they resided in the Halimusian district, which was four or five miles from Athens; most of those who remained were the party combined against the appellant, and some of them had two or three ballots furnished by Eubulides, who presided at the revision; in fact, it was found, that there were twice as many ballots put into the box
(1) Thus he explains the expression in Demosthenes, avopa elvaι doкiμaolñvai, which Petit and others have understood to signify no more than the birth scrutiny. (De Comitiis, 78, 79.)
(2) It was called diaviors, and a member struck off the register was said aroVnpioonvai. See on the whole of this subject Schömann, De Comitiis, 376-384; and article Demus in the Archæological Dictionary.
as there were members present. He charges his opponents with jobbing and conspiring in other cases besides his own. He insinuates, that there was a prejudice against him on account of his poverty, his mother being a vendor of ribbons, and having taken children to nurse; and also, that he had made himself unpopular formerly, when he was prefect of the township, by enforcing payment of rents and dues. To prove his legitimacy, lie calls, besides his relations, some members of his clan and family; showing that, upon his father's marriage, the members of his clan had partaken of the marriage sacrifice; that he, when a child, had been introduced to the clan, and taken to religious worship at the temples.
Here I may observe that, although for political purposes there was (in general) no necessity for being admitted into the clans and families, as there was to the townships, yet it was usual for all of pure Attic blood to be so admitted to them; and therefore the fact of a man's being an acknowledged member of those associations afforded strong positive proof of his civic origin. And we find that the clansmen and kinsmen were frequently called as witnesses to prove family matters.1
There was a distinction made by the law in cases of adoption. For it was necessary that an adopted son should be registered not only in the township, but also in the clan of the father, as we learn from Isæus.2
GUARDIAN AND WARD.
THE duties of guardians at Athens did not materially differ from those which have been annexed to the office in other countries. The father had the power of appointing guardians by will, to whom generally was confided the personal care of the infant, as well as the management of his property. If there was no testamentary guardian, it devolved upon the Archon, as the official protector of orphans, to appoint one; just as in England the Lord Chancellor will make a similar appointment, upon an application made on the infant's behalf. It seems that the nearest relation was usually entitled to be nominated, in the absence of a direction by will. Meier has shown that we cannot depend upon the statement of Diogenes Laertius, that by a law of Solon the infant's nearest relation by the father's side could (1) See Isæus, De Philoctem. Hered. 13. Ed. Bekker. De Pyrrh. Hered. 91, 92. De Ciron. Hered. 24-26. De Astyph. Hered. 11-13. Demosthenes, cont. Neær. 1365.
(2) De Apollod. Hered. 32, 33. De Aristarch. Hered. 12, 22. De Menecl. Hered. 18-21.
not be his guardian. There are in fact several passages in Isæus, which show the contrary,1 and the practice of appointing the nearest paternal relatives by will seems to indicate what the law was. If there were no relatives, or none fit, or perhaps none who chose, to undertake the office, then it fell upon the Archon to select one from the whole body of Athenian citizens.
The duties of the guardian were, to take care of the person of his ward, and provide for his maintenance and education; also to manage and improve his estate, so long as he remained in a state of pupillage. Towards third parties and towards the state he was the ward's legal representative: for example, in actions by or against the ward, he acted as his kúptos, prochein amy, or next friend; (see Volume III. Appendix IX. page 373) and we have learned from the speech against Aphobus (ante, page 94,) that he made returns on his behalf for the property-tax assessment, the only public charge from which a minor was not exempt, and made the necessary payments in his name to the state. If the mother remained with the orphan, the guardian was bound to make provision for her maintenance also.
With respect to the administration of the ward's estate, as well as
(1) De Dicæog. Hered. 18. Ed. Bekker. Aikatoyevs éyyvtáτw wv yéVOUS ÉTETPÓTEVEV. De Cleon. Hered. 10-13. The heirs of Cleonymus, claiming his estate, allege that Dinias, their paternal uncle, was their guardian, and that Cleonymus made a will excluding them from the inheritance, because he had quarrelled with Dinias, and did not wish that his property should be under the control of Dinias after his death. Compare also the argument to the oration De Arist. Hered.
(2) The common law of England took the precaution of excluding from guardianship in socage (as it was called) those relatives to whom the inheritance would descend, giving it to the next of kin, to whom the inheritance could not possibly descend; therefore, if the land descended to the heir on the part of the father, the mother, or other next relation on the part of the mother, had the wardship; so, if the land descended to the heir on the mother's side, the father, or his next of kin, had the wardship.
The Roman law as to this point was like the Athenian; and therefore the Satirist says
Pupillum utinam, quem proximus heres
Persius, ii 12.
There was a law of Charondas by which the management of the minor's property was given to the nearest paternal relative, while his education was entrusted to the next of kin by the mother's side. The same middle course was adopted by the Scotch and the ancient French law, committing the pupil's estate to the person who was entitled to the legal succession, because he is most interested in preserving it from waste, but excluding him from the custody of the pupil's person.
Kent in his Commentaries (II. 223) has the following remarks upon this: "The English, Scotch, and French laws, proceeded on too great distrust of the ordinary integrity of mankind. They might with equal propriety have deprived children of the custody and maintenance of their aged and impotent parents. It is equally a mistake in politics and law, to consider mankind degraded to the lowest depths of vice, or to suppose them acting under the uniform government of virtue. Man has a mixed character, and practical wisdom does not admit of such extreme conclusions. The old rule against committing the custody of the person and estate of a lunatic to the heir at law has been overruled as unreasonable. If a presumption must be indulged, it would be in favour of kinder treatment and more patient fortitude from a daughter, as committee of the person and estate of an aged and afflicted mother, than from the collateral kindred. The fears and precautions of the lawgivers on this subject imply, according to Montesquieu, a melancholy consciousness of the corruption of public morals."
other matters, a testamentary guardian was bound to execute the trusts of the will. A guardian appointed by law had a discretionary power, but not an unlimited one. It seems that it was not lawful for him to carry on a trade for his ward, or to risk his estate in dangerous speculations, such as adventures at sea. It was his duty however to increase it, if possible; and the most approved courses are said to have been, either to purchase lands, or to lend out the whole property on good security during the whole term of the ward's minority.1
The property might be lent out either to a single person, or in parcels to several. The former method appears to have been the most profitable; and therefore, in the case of a safe borrower, the most eligible. We have read how Theogenes, having borrowed three talents and thirty minas, the property of Antidorus, paid back upwards of six talents to him at the end of six years: (ante, page 108). It may be thought strange, that such large interest should be paid on loans by persons who were obliged to give good security for repayment. We can only conclude that very considerable profits could be made in those times by mercantile speculations. Compound interest appears
to have been unknown.
It was competent for the guardian to lend the estate in this way by private contract. But the better course, if he wished to relieve himself from responsibility, was, to apply to the Archon, and act under his authority. The Archon then held a court, of which public notice was given, and the estate was lent to the highest bidder, approved of by a jury.2
If the guardian violated his duty, by neglecting the maintenance or education of his ward, by ill-treatment of his person, or by mismanaging his property, or by any kind of fraud or injury, he was liable to a criminal prosecution, which any Athenian might bring against him during the term of the ward's pupillage. Of the different forms of procedure, and the punishment which attended any misconduct of this kind, I have already spoken: (see Volume III. Appendix viii. pages 351, 352, 360, 364). One consequence of conviction was the removal of the guardian; which indeed, if accomplished early enough, would be the most efficient remedy; for a fraudulent guardian might in the course of a long minority do irreparable mischief. Demosthenes says in the first speech against Onetor, (ante, page 136,) that the frauds of his guardians had at an early period become notorious, and that many meetings were held on the subject before the Archon. This was probably with a view to get up a criminal prosecution.3
(1) μolour Tov oikov. See Lysias, cont. Diog. 35. Ed. Bekker.
(2) Isæus, de Philoct. Hered. 44, 45. ἐπειδὴ τὰ δικαστήρια ἐπληρώθη, ὁ μὲν ἄρχων προεκήρυττεν, οἱ δ ̓ ἐμισθοῦντο.
(3) In the oration against Nausimachus and Xenopithes, which is translated in > this volume, it is mentioned that on a páris against the guardian for not having let the estate, the uncle of the wards persuaded the jury to let him administer the estate. The expression of an opinion by the jury would very likely guide the discretion of the Archon. (See ante, page 250: origin, page 991.)