The Story of Law - John M. Zane

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was justifiable.

      The law developed many different kinds of actions—indictments, public prosecutions or impeachments, actions for impiety, for violence, for the recovery of real and personal property. There were various different forms of lawsuits with particular names. There was no developed preventive remedy by injunction. A different remedy was provided for the recovery of personal property from that for the recovery of real property. The laws provided in certain commercial cases a summary remedy and trial within thirty days.

      It is apparent that this is a very highly advanced system of law. But it is in the realm of contractual relations, pledges, mortgages, trading ventures, banking operations that we reach the highest development. Such business was done by written contract, and the written contract precluded proof of any other contract made. As is well known, after the Battle of Salamis and the defeat of the Persian fleet, Athens founded the Delian League, and by a natural process made herself the great entrepôt of commerce. She, by her laws, so regulated her commerce that it must all pass to Athens, much in the manner that the English made and used their Navigation Laws. To conduct such a commerce, advances of money by capitalists were necessary. Athens found such a commercial system ready to her hand in the Babylonian system of merchant adventuring, which had been adopted in the Ionic cities in Asia. Thence it found its way to Athens, when, after the Persian wars, she acquired her great commerce.

      As an illustration of the written contract being the sole contract, we may instance the case of a woman banker, Nicarete, at Thespiae. She had made loans to the City of Orchomenos in Boeotia. Borrowings by municipalities were common. These loans of Nicarete had been made at various times and, as usual, the city was unable to pay upon the maturity of the loan. A contract was thereupon drawn up whereby a loan to the amount of the advances to the city was recited to have been made to named officials of the city and ten citizens selected by the banker. This was, of course, contrary to the fact. The pretended loan gave power to the banker to proceed to collect by execution against the property of these persons. The new loan was made payable to bearer. Thus it appears that an agreement to pay money took the form of a negotiable promissory note or its equivalent, deliverable from bearer to bearer. What was desired to be done was for the city to obtain an extension of the loan, which the banker was willing to grant upon further parties becoming makers of the paper, and making themselves personally and primarily liable along with the city. The transaction was in fact a renewal of the loan, by the taking up of the outstanding paper, by a new note with new makers. It is certain that the substituted agreement would never have been made if it had lain in the power of the parties to defeat the contract by proof that the substituted contract did not express the real transaction. There seems to be no reason to doubt that the Greek law was at all different from the Babylonian or from our own to the effect that what the parties put into writing to be the contract they cannot deny by oral evidence. The rule, by a strange misnomer, in our law is called the parol evidence rule.

      Upon the maturity of this fictitious loan another delay in payment took place. A new agreement was made that the city itself would pay the loan in two months, and when that time came the city paid. Whether this new paper released the makers of the second note does not appear. The practice of making a loan to a city, enforcible by execution against citizens, seems to have been a common device. It was evident that whenever an execution was provided for in the contract itself, the Greek law was providing a means, just as our contracts often provide a means, of obtaining the remedy as a matter of course. The Greeks had judgment notes also, just as we have.

      Personal arrest on debt was abolished by Solon, but the remedy of distress by self-help remained. Contracts of surety-ship were common, but the surety became bound not secondarily to his principal but primarily. Almost every contract was buttressed by sureties, such as loans and leases. Where sureties became liable for the appearance of a criminal, if the criminal absconded, they might be subjected to the punishment. Our device of a bail bond in a penal sum of money was not reached by the Grecian law.

      The provisions of law as to leases were peculiar in that a conveyance prevailed over a lease existing on the land. Our rule is to the contrary in that possession of the land by the tenant is notice of his rights. Special clauses as to the method of cultivation were common. Temple lands were often leased in perpetuity upon a rent reserved. A lease in perpetuity upon a rent reserved presents some very curious questions in our law. The law as to sales of goods was clear, and sales were generally publicly made before witnesses or in the open market. A close supervision was exercised over the quality of the goods and honest weights. Sales could be made upon credit, and one of the changes in the law proposed in Plato’s Laws was that all sales upon credit should be abolished. Title in the goods passed upon payment, either in cash or by credit; but in our law title passes upon the bargain as to goods in existence and ascertained.

      It will be seen that all the great heads of the law are well represented in Athenian law, and that so far as general rules are concerned Greek law would in its main lines be found to differ little from our own. The difficulty with it as a system was its failure to develop a competent tribunal to apply the law. That the state owed the duty of doing justice between its citizens would not have been questioned by Greeks, and the Greek law had lost the primitive element of an agreed submission to the tribunal provided by the law, before the tribunal could force the attendance of the defendant.

      When through the conquests of Alexander the Great and the existence of the kingdoms of the Hellenic successors of Alexander, Greek rule became distributed over the eastern world, this system of Hellenic law became almost a world system, and through the Romans and their praetorian law, called the law of nations, its principles continued to survive. So much was this the case that when the Corpus Juris of Justinian was compiled, it would have been difficult to separate Roman from Greek elements; for as Pliny the Younger said, the Greeks gave to the Romans their laws.

      IN ORDER TO SEE THE ATHENIAN LAW in action, it will not be out of place to give some life and reality to a particular lawsuit. We know something of it because one of the parties hired Demosthenes to write a speech for him to deliver to the Athenian court where the case was tried. It arose under a law which in effect provided that merchandising loans at Athens must be made on merchandising to or from Athens. A law read: “It shall not be lawful for any Athenian or any alien residing at Athens or any person under their control to lend out money on a ship which is not commissioned to bring goods to Athens.” Another law prohibited any person resident in the Athenian State from transporting grain direct to any harbor but the Piraeus. These laws governed the whole Delian League under the Athenian supremacy and the Athenian colonies and dependencies long afterwards, though sometimes Athens allowed the contrary to be done. Wardens were kept at Sestos in the Dardanelles to enforce this law against all passing ships.

      The Greek trader was generally a merchant adventurer who was advanced money—or financed, as we say—by some man of means at Athens. The contract generally described what the voyage should be, and determined the goods that were to be the subject of the speculation. This commerce made Athens, city-state as it was, a great cosmopolitan center. It is needless to say that the harbor at Athens was thronged with vessels and the returns upon this commerce enriched all classes at Athens. In those days an Athenian named Demon, who was an uncle of the orator Demosthenes, was a man of property at Athens, and he had a lawsuit in regard to goods purchased on such a loan. The circumstances that were disclosed were sensational enough to satisfy the yearnings of a yellow sheet. The case is remarkable for showing that the active trading Greek was then, as he is to-day, often more or less of a rascal. Surroundings may change, but human nature is the one unchangeable thing in this hoary old world. It was true then, as now, of the Greeks:

      Still to the neighboring ports they waft

      Proverbial wiles and ancient craft.

      The Romans, with their sound character, had little respect for Grecian honesty. Cicero, the unfailing eulogist of Greece, felt this want of moral stamina when he said: “I grant them all manner of literary and rhetorical skill, but that race never understood or cared for the sacred

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