The succession is, in principle and by rule as ancient as and more than the Greek people, of children to the father: whoever has no descendants can create them with adoption, between living or due to death (εἰσποίησις). In progress of time the laws call to inherit, in the absence of legitimate and adoptive descendants, the kinship of the father of the deceased (father, brothers, nephews ex fratre), then that of the ancestor (grandfather, uncles, cousins), possibly that del bisavo: while some legislations call further kinship, others attribute to the state the assets of those who do not leave close relatives. It was also admitted until ab antiquothat, especially in the hour of danger, someone disposed of the goods of purchase and personal use for the benefit of one or more strangers: from this donation due to death (δόσις) the will without adoption was born, which it shares with the is another name of διαϑήκη and is widely practiced in every part of the Greek world. The woman was habitually endowed, in life or in death of her father, but originally excluded from the succession: later many laws admitted her to the headed succession, but dividing each kinship into two classes, the masculine and the feminine, and calling the second only in the absence of the first; in Athens, as in Sparta, the woman who is the only descendant is not an heir but ἐπίκληρος, that is, a vehicle for the transmission of the inheritance to her children:
According to rrrjewelry, criminal law arises, as is natural, from revenge: familiar for the murder, and not tolerated but imposed by custom under fierce sanctions: individual, and generally optional, for other wrongs. In primitive age it seems that the intentional element was not taken into account; but in the law of Dracone, unjustly proverbial, voluntary murder (ϕόνος ἑκούσιος) is distinguished from involuntary (ἀκούσιος); and if this too is punished (with exile rather than death) this responds to that need for purification, for which the sentence must also be pronounced against the unknown murderer and against the animal or thing that caused death. Theft is otherwise avenged according to whether it is flagrant or not: while the second is punished with a private pecuniary penalty (a multiple of the value), the former is still punishable by death in draconian legislation: later courts routinely use the power to commute the death penalty into a fine accompanied by atymia, and many cases of qualified theft are subjected to the regime of flagrantism. Among other crimes it will be useful to remember the rich case history of impiety (ἀσέβεια), personal injuries and serious injuries, adultery, desertion and abandonment of place in the face of the enemy, as well as the series of crimes against the state, in typical forms of betrayal and embezzlement and in the countless others that democracies defined in their spirit of suspicion towards the magistrates. and many cases of qualified theft are subjected to the regime of flagrancy. Among other crimes it will be useful to remember the rich case history of impiety (ἀσέβεια), personal injuries and serious injuries, adultery, desertion and abandonment of place in the face of the enemy, as well as the series of crimes against the state, in typical forms of betrayal and embezzlement and in the countless others that democracies defined in their spirit of suspicion towards the magistrates.
With regard to the trial, the fundamental difference does not arise between civil and criminal matters, but between the wrongs that can be prosecuted through the action of the interested party (δίκη) and those for which popular action is admitted, exercisable by every citizen (γραϕή): γραϕή always has a crime as its foundation, but for a residue of revenge the private action of family members is always required in Athens for the murder, and it is natural that the same principle applies to crimes punished with a fine in favor of ‘offended, such as non-flagrant theft, minor injuries and insults, damage.
The function of judging is sometimes entrusted to special bodies, but in general the competence of these is limited to minor cases: the concept prevails instead that jurisdiction, a sovereign function, belongs to the supreme constitutional bodies. It is therefore up to the king in the Homeric poems, assisted by the geronti; and in the oligarchies it is divided, according to the importance of the causes, between the magistrates and the councils of the elders. But already in several aristocratic states the tendency to bring the most serious causes to the judgment of the assembly of active citizens (e.g. in Locri Epizefirî ai Mille) or to a part of it (as in the Ptolemaic constitution of Cyrene, where ai 601 of the βουλή and of the gerusia are added 1,500 citizens drawn from the Ten thousand); and democracies are definitely going down this path. Thus in Athens Solon introduces the appeal to the people, and Ephialtes (462 BC) transforms the popular judgment into a single instance, entrusted to a large representation of the people (ἡλιαία), respecting only the jurisdiction of the Areopagus and other homicide courts: for crimes against the state or against democracy, the whole Ecclesia can reserve its judgment. The 6000 judges of Eliea, drawn by lot from year to year in the number of 600 per tribe, were divided by further lottery among the various courts of which the individual magistrates held the presidency (v.archon). The magistrate is responsible for the instruction, the importance of which is manifested in the fact that no evidence that has not already been collected in the preliminary investigation can be presented to the hearing. Before the court, the parties must support their arguments personally, interspersing the evidence in their words: the need for brilliant speeches, as agreed in numerous courts, gave a lot to do for the specialists who provided the parts of a text to be recited (v. advocacy). The function of the court is made very delicate by the fact that many processes are τιμητοί, that is, they leave the extent and type of the penalty to Eliea’s discretion: hence the fierce aversion of thoughtful spirits against the system. The private trials were generally subjected, before the referral to trial, to arbitrators (dieticians), drawn from a list that included all citizens over the age of 60: only if the arbitrators’ award was not accepted did the trial take its course.
