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SY´MBOLON
SY´MBOLON, DIKAI APO (δίκαι ἀπὸ συμβόλων) The ancient Greek states had no welldefined international law for the protection of their respective members. In the earlier times troops of robbers used to roam about from one country to another, and commit aggressions upon individuals, who in their turn made reprisals, and took the law into their own hands. Even when, the state took upon itself to resent the injury done to its members, a violent remedy was resorted to, such as the giving authority to take σῦλα, or ῥύσια, a sort of national distress. As the Greeks advanced in civilisation, and a closer intercourse sprang up among them, disputes between the natives of different countries were settled (whenever it was possible) by friendly negotiation. It soon began to be evident, that it would be much better, if, instead of any interference on the part of the state, such disputes could be decided by legal process, either in the one country or the other. Among every people, however, the laws were so framed as to render the administration of justice more favourable to a citizen than to a foreigner; and therefore it would be disadvantageous, and often dangerous, to sue a man, or be sued by him, in his own country. The most friendly relation might subsist between two states, such as συμμαχία or ἐπιγαμία, and yet the natives of each be-exposed to this disadvantage in their mutual intercourse. To obviate such an evil, it was necessary to have a special agreement, declaring the conditions upon which justice, was to be reciprocally administered. International contracts of this kind were called σύμβολα, in older language ξυμβολαί (C. I. A. iv. No. 96, 50.4; ii. No. 11, 1. 13, etc.), defined by Harpocration. (s. v.) thus, συνθῆκαι ἃς ἂν ἀλλήλαις αἱ πόλεις θέμεναι τάττωθι τοῖς πολίταις ὥστε διδόναι καὶ λαμβάνειν τὰ δίκαια: and the causes tried in pursuance of such contracts were called δίκαι ἀπὸ συμβόλων. No such agreement has been preserved to us, and a few casual references by writers and some fragmentary inscriptions afford us but little information concerning the terms usually prescribed. Perhaps the most important passage on this subject is [Dem.] de Halon. p. 78, § § 9-14, from which it appears (1) that such agreements in the case of Athens were ratified by a Heliastic court (under the presidency of the Thesmothetae, Poll. 8.88; Reiske, Ind. Graec. Dem., and Goodwin in Amer. Journ. of Phiol. 1880, p. 10 ff., wrongly refer the demand of Philip for the right of κύρωσις not to the ratification of the agreement itself, but to a confirmation of the judgments rendered by the Athenian courts). The other contracting state was therefore compelled to send envoys to Athens with power to conclude the treaty as it was drawn up and settled by the Thesmothetae and the Heliastic court. Most of the states with whom the Athenians had to deal were content to acquiesce in this regulation. Philip, however, would not submit to it, and demanded that the terms should receive final ratification in Macedonia. Evidently his reason for this was, as is plainly stated by the orator (Hegesippus), that he might introduce in the treaty an admission on the part of the Athenians of the lawfulness of his holding Potidaea.
(2) That by such agreement there was as between the citizens of the contracting cities (and only these, cf. Plb. 32.37) reciprocity of suing and being sued (cf. Arist. Pol. 3.1, 3 S., οὐδ̓ οἱ τῶν δικαίων μετέχοντες οὕτως ὥστε καὶ δίκην ὑπέχειν καὶ δικάζεσθαι: τοῦτο γὰρ ὑπάρχει καὶ τοῖς ἀπὸ συμβόλων κοινωνοῦσι; see also 3.5 (9), 11, σύλβολα περὶ τοῦ μὴ ἀδικεῖν: thus the σύμβολα contained a special provision that a freeman should not be arrested: μὴ ἐξεῖναι μήθ̓ εἷρξαι μήτε δῆσαι, [Andoc.] c. Alcib. § 18).
(3) That the principle of such agreements was causa sequitur forum rei, i.e. the decision was given in the court of the defendant's city (Platner, Proc. u. Klag. i. p. 109), whilst the laws according to which the causes were decided were not those of the adjudging city, but laws made binding by the σύμβολα upon those who sued under them.
(4) That δίκαι ἀπὸ συμβόλων had the same sphere as the δίκαι ἐμπορικαί, and that commercial people would stand in need of them the most.
There were, however, as we learn from inscriptions, some essential points of difference between δίκαι ἀπὸ συμβόλων and δίκαι ἐμπορικαί. In the latter the suit was held in the state where the contract was made, i.e. causa sequitur forum contractus, and was decided by the general. laws of that state, and not by the particular stipulations of the σύμβολα: thus a δίκη ἐμπορικὴ could be maintained against an Athenian on a contract made in Macedonia only if the Athenian was caught in Macedonia. This follows from C. I. A. ii. No. 11: suits on contracts made at Athens with Phaselitans must be tried at Athens before the Polemarch καθάπερ Χίοις: for all other contracts made with Phaselitans' suits must follow the terms of the ούμβολα, and such δίκαι ἀπὸ δυμβόλων were under the ἡγεμονία of the Thesmothetae (Poll. 8.88). Fränkel (de Condic. jure jurisdict. soc. Ath. p. 71) and Gilbert (Griech. Staatsalt. i. p. 406) wrongly [p. 2.735]infer from this inscription that the rule of σύμβολα was causam sequi forum contractus; for the decree makes a special exception as regards contracts made at Athens by Phaselitans. Again, it is evident from C. I. A. iv. No. 61 a, 50.17 ff., that σύμβολα provided not only that individual citizens of the contracting states might sue one another, but also that one state might sue an individual citizen of the other state or vice versâ (τοῖς ἰδιώταις πρὸς τοὺς ἰδιώτας ἢ ἰδιώτῃ πρὸς τὸ κοινὸν ἢ τῷ κοινῷ πρὸς ἰδιώτην). In the case of an individual citizen of one state bringing a suit against another state, resort was probably had to a πόλις ἔκκλητος (Stahl, de Soc. Athen. iudiciis, p. 10. Goodwin, l.c. p. 8, supposes that in the σύμβολα as a rule such a πόλις ἔκκλητος was appointed; see Hicks, Manual, No. 149 A, § 6), i. e. the court of a third state was called in to decide the dispute: e. g. if a citizen of an allied city brought a suit against Athens, it could hardly be expected that an Athenian court would give judgment against Athens; here therefore, for obvious reasons, the rule causam sequi forum rei was departed from, and--the decision entrusted to the court of a third city agreed upon by the two parties to the suit. (In a similar manner the clailm of thirty talents made by the children of Diagoras against the people of Calymna was decided by a Cnidian tribunal, Anc. Greek Inscr. ed. Newton, ii. No. 299.) It was a recognised practice among the Greeks to refer disputes to the tribunal of a third state: thus the Corcyrians proposed to Corinth to refer the question of Epidamnus to any Peloponnesian cities which they both should agree upon: Thuc. 1.28, cf. 5.79, αἰ δέ τις τῶν ξυμμάχων πόλις πόλει ἐρίζοι, ἐς πόλιν ἐλθεῖν ἅντινα ἴσαν ἀμφοῖν ταῖς πολίεσι δοκείοι, etc.; and such causes were called ἔκκλητοι δίκαι (cf. Hesych. sub voce αἱ ἐπὶ ξένης λεγόμεναι καὶ οὐκ ἐν τῇ πόλει) and the city chosen by the parties to the suit ἔκκλητος πόλις (cf. C. I. A. ii. No. 308: ἐπειδὴ τοῦ δήμου τοῦ Ἀθηναίων καὶ τοῦ κοινοῦ τοῦ Βοιωτῶν σύμβολον ποιησαμένων πρὸς ἀλλήλους καὶ ἑλομένων ἔκκλητον τὴν Λαμιέων πόλιν ἀνεδέξατο καθιεῖν τὸ δικαστήριον, etc., Plut. Apophth. Lacon. p. 215 c; Aeschin. c. Tim. § 89, etc.). There is no evidence for Hudtwalcker's (Diäteten, p. 124 f.) opinion which makes a πόλις ἔκκλητος merely one of the two contracting cities to which a case is carried on appeal from the other, <each being a city: of appeal for all suits tried in the other's courts, so that e. g. a Rhodian in a suit with an; Athenian tried at Athens could appeal to Rhodes, “while an Athenian in a suit with a Rhodian tried at Rhodes; could appeal to Athens. As Platner (l.c. i. p. 110) and Goodwin (l.c. p. 8) point ” out, the whole purpose of σύμβολα with their appointment of suits to be tried in either country would be: frustrated if-either party at his pleasure could annul the judgment in any suit and carry the case for trial before the courts of his own country.
According to the grammarians, the name δίκαι ἀπὸ συμβόλων was given also to the causes which the subject allies of the Athenians sent to be tried at Athens (Bekk. Anecd. i. p.. 436, 1: Ἀθηναῖοι ἀπὸ συμβόλων ἐδίκαζον τοῖς ὑπηκόοις: οὕτως Ἀριστοτέλης. Hesych. sub voce ἀπὸ συμβάλων ἐδίκαζον Ἀθηναῖοι ἀπὸ συμβόλων τοῖς ὑπηκόοις, καὶ τοῦτο ἦν χαλεπόν. poll. 8.62, ἀπὸ συμβόλων δὲ (δίκη ἦν) ὅτε οἱ σύμμαχοι ἐδικάζοντο). The fact that the Athenians had σύμβολα both with autonomous and subject allies is placed beyond doubt by inscriptions; e. g. from the words κατὰ τὰς ξυ[μβο]λὰς αἳ ἦσα[ν πρὸ τούτου τοῦ χρόνον], C. I. A. iv. No. 96, in a decree referring to the Mytilenaeans after their reduction in 427 B.C. we may conclude that the Athenians had σύμβολα with them both before and after the revolt. C. I. A. iv. No. 61 a and ii. No. 11 (if Köhler's reading in 50.13 is correct: κατ[ὰ τὰς πρὶν] ξυμβολάς) show us δίκαι ἀπὸ συμβόλων with subject allies; and Thucydides (1.77) also refers to this class of causes (though Boeckh, Sthh. i.3 p. 476 n.; Grote, Hist. of Greece, v. p. 306 n.; and Goodwin, l.c. p. 14 f. are of opinion that δίκαι ξυμβολίμαιοι are not δίκαι ἀπὸ συμβόλων, but suits about ξυμβόλαια or, business contracts). But σύμβολα involve recipr6city, and trials held under them were maintained in the courts of “ the defendant's city;” in statements, however, like ἐδίκαζον Ἀθηναῖοι ἀπὸ συμβόλων τοῖς ὑπηκόοις, there is no mention of this reciprocity. However, as Morris; (Amer. Journ. of Pailol. 1884, p. 306) points out, “it would no doubt practically come to pass that most of such suits would, even by the terms of the treaties, have to be tried in Athenian courts. For in most cases the Athenians would be ‘the: defendants. The feelings with which the dominant Athenian demos, as a whole, regarded, the subject allies, could hardly ’ fail to exhibit ‘themselves in the dealings of ’ individual Athenians with those with whom they had commercial relations; and so it would come to pass that in the great majority of such cases it would be the citizen of an allied state who was the plaintiff, and he must necessarily, therefore, sue in an Athenian court. We may consider also that suits brought against Athenians by citizens of any one of the subject cities would Pall be tried at Athens; whereas the suits brought by Athenians against any citizens of their tributary states would be tried one at Rhodes, another at Phaselis, another at Samos, and so on. The judicial range, therefore, of the Athenian courts must have greatly surpassed that of the courts of any one of the allies, perhaps of all ‘ of them. together; and thus, even without any formal infraction of the reciprocity implied by the existence of σύμβολα, the impression may easily have come to; exist, which the statements quoted from’ the grammarians express, that it was the Athenians who decided, in accordance with the terms of the several σύμβολα, the commercial. suits of their subjects.” --Perhaps the grammarians mixed up two different sets of causes tried at Athens: viz. the δίκαι ἀπὸ συμβόλων were tried in the defendant's city, and as was but natural for the most part at Athens--and the causes of the subject allies, which were carried: up; for trial to Athens, after the allies had.been deprived of most of their independent jurisdiction. Only by degrees did the.Athenians claim this supreme jurisdiction over the members of their first confederacy. Thus, after the reduction of Chalcis in 446-5 B.C., the Chalcidians were left their own jurisdiction, with this limitation, that all offences which were punishable by disfranchisement, exile, or death were to be sent to Athens for trial (C. I. A. iv. No. 27 a, 50.71 ff., τὰς δὲ [p. 2.736]εὐθύνας Χαλκιδεῦσι κατὰ σθῶν αὐτῶν εἶναι ἐν Χαλκίδι καθάπερ Ἀθήνησιν Ἀθηναίοις πλὴν φυγῆς καὶ θανάτου καὶ ἀτιμίας: περὶ δὲ τούτων ἔφεσιν εἶναι Ἀθήναζε εἰς τὴν ἡλιαίαν τῶν θεσμοθετῶν, etc.; for the meaning of ἔφεσις, cf. Att. process, ed. Lipsius, p. 990 f., and Wilamowitz--Möllendorff, Aus Kydathen, p. 88 f.). In the time of the Peloponnesian war, however, Athenian jurisdiction extended much further, as is evident from [Xen.] de Rep. Athen. 1.16 f., τοὺς συμμάχους ἀναγκάζουσι πλεῖν ἐπὶ δίκας Ἀθήναζε (cf. Athen. 9.407b). Not only were all charges of treason or hostility against Athens carried thither for trial (C. L. A. i. No. 38; Aristoph. Wasps 282 f., Pac. 639 f.) and the allied cities interdicted from the power of capital punishment (Antiph. de caed. Her. § 47); but as appears from Xenophon's mention of πρυτανεῖα, civil suits also were decided by the Athenian tribunals. It is not at all probable that all the private suits between citizens of the allied cities were carried up for trial to Athens, yet with our present information it seems impossible to determine which suits were tried at Athens and which were decided in the local courts; perhaps the amount involved decided the point (see C. I. A. iv. No. 22a). Probably the precise regulations were different in the case of different cities. Thucydides (1.77) seems to refer to the two sets of causes distinguished above: καὶ ἐλασσούμενοι γὰρ ἐν ταῖς ξυμβολιμαίαις (Cobet, Nov. Lect. p. 432; Hesych. sub voce ξυμβολιμαίας δίκας: Ἀττικοὶ τὰς κατὰ σύμβολἀ πρὸς τοὺς ξυμμάχους δίκαις καὶ παῤ ἡμῖν αὐτοῖς ἐν τοῖς ὁμοίοις νόμοις ποιήσαντες τὰς κρίσεις φιλοδικεῖν δοκοῦμεν: in the former clause he refers to the δίκαι ἀπὸ συμβόλων which would be tried in the courts of the defendant's city, and in these the Athenians were at a disadvantage, inasmuch as the courts of their allies usually decided against them; in the latter clause he speaks of the causes of the allies tried in Athenian courts (παῤ ἡμῖν αὐτοῖς) on the basis of impartial laws for both of them.
Only one cause of this kind is preserved to us, viz. the speech of Antiphon on the death of Herodes. The defendant (Helus) and the accusers, loose the relatives of Herodes, were citizens of Mytilene (Blass, Att. Bereds. i. p. 162, supposes that Herodes was an Athenian, resident as κληροῦχος at Mytilene). We learn nothing from this speech as to the proceedings of such a trial except that the preliminary investigation was made on the spot, as we might expect, but that the trial took place at Athens.
Grote (Hist. of Greece, v. p. 307 n.) supposes that δίκαι ἀπὸ συμβόλων between Athenians and their allies existed only under the second Athenian empire, and that the passages quoted by grammarians from Aristotle apply only to these; but the term ὑπήκοοι is surely inapplicable to the members of the second confederacy. (Att. Process, ed. Lipsius, pp. 994-1005.)
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