Politics: A Treatise on Government

Of the three parts of which a government is formed, we now come to consider the judicial; and this also we shall divide in the same manner as we did the magisterial, into three parts.  Of whom the judges shall consist, and for what causes, and how.  When I say of whom, I mean whether they shall be the whole people, or some particulars; by for what causes I mean, how many different courts shall be appointed; by how, whether they shall be elected by vote or lot.  Let us first determine how many different courts there ought to be.  Now these are eight.  The first of these is the court of inspection over the behaviour of the magistrates when they have quitted their office; the second is to punish those who have injured the public; the third is to take cognisance of those causes in which the state is a party; the fourth is to decide between magistrates and private persons, who appeal from a fine laid upon them; the fifth is to determine disputes which may arise concerning contracts of great value; the sixth is to judge between foreigners, and of murders, of which there are different species; and these may all be tried by the same judges or by different ones; for there are murders of malice prepense and of chance-medley; there is also justifiable homicide, where the fact is admitted, and the legality of it disputed.

There is also another court called at Athens the Court of Phreattae, which determines points relating to a murder committed by one who has run away, to decide whether he shall return; though such an affair happens but seldom, and in very large cities; the seventh, to determine causes wherein strangers are concerned, and this whether they are between stranger and stranger or between a stranger and a citizen.  The eighth and last is for small actions, from one to five drachma’s, or a little more; for these ought also to be legally determined, but not to be brought before the whole body of the judges.  But without entering into any particulars concerning actions for murder, and those wherein strangers are the parties, let us particularly treat of those courts which have the jurisdiction of those matters which more particularly relate to the affairs of the community and which if not well conducted occasion seditions and commotions in the state.  Now, of necessity, either all persons must have a right to judge of all these different causes, appointed for that purpose, either by vote or lot, or all of all, some of them by vote, and others by lot, or in some causes by vote, in others by lot.  Thus there will be four sorts of judges.  There [1301a] will be just the same number also if they are chosen out of part of the people only; for either all the judges must be chosen out of that part either by vote or lot, or some by lot and some by vote, or the judges in particular causes must be chosen some by vote, others by lot; by which means there will be the same number of them also as was mentioned.  Besides, different judges may be joined together; I mean those who are chosen out of the whole people or part of them or both; so that all three may sit together in the same court, and this either by vote, lot, or both.  And thus much for the different sorts of judges.  Of these appointments that which admits all the community to be judges in all causes is most suitable to a democracy; the second, which appoints that certain persons shall judge all causes, to an oligarchy; the third, which appoints the whole community to be judges in some causes, but particular persons in others, to an aristocracy or free state.