), a prosecution against one who had falsely appeared as a
i. e. a witness to prove that a defendant had been
duly summoned, and who had thereby enabled the plaintiff to get a judgment
by default. To prevent fraud the Athenian law directed that the names of the
witnesses (usually two in number; CLETERES
) who attended the summons should be subscribed to the
bill of plaint or indictment (ἔγκλημα
that the defendant, if he had never been summoned and judgment had
nevertheless been given against him by default (ἐρήμη δίκη
), might know against whom to proceed. A good
example of the practical necessity for legislation on this point occurs in
Dem. c. Nicostr.
p. 1251.14, where we read of ἀπρόδκλητον ἐξ ἐμφανῶν καταστάσεως ἐπιβολήν,
“a fine for non-production of property in court demanded (and even
registered) without formal citation” (cf. Sandys ad loc.;
p. 976 Lips.). The false witness (κλητὴρ
) was liable to be criminally prosecuted,
and punished at the discretion of the court. Even death might be inflicted
in case of gross conspiracy (Dem. op. cit.
1252.18). A person thrice convicted of this offence was, as in the case of
other false testimony, ipso jure
and even for the first offence the jury might, if they pleased, by a
inflict the penalty of
atimia upon him (Andoc. de Myst.
§ 74; Meier,
de Bon. Damn.
p. 125). Here we may observe this
distinction, that the proceeding against the false witness to a summons was
of a criminal nature, while the witness in the cause (μάρτυς
) was liable only to a civil action. The reason may
have been that the former offence was more likely to do mischief. The
magistrates before whom the defendant neglected to appear, when by the
evidence of the witness it was shown that he had been duly summoned, had no
discretion but to pronounce judgment against him; whereas the dicasts, to
whom the witness gave evidence at the trial, might disbelieve him and find
their verdict according to the truth. If the fraud was owing to a conspiracy
between the plaintiff and the witness, it is probable that an action at the
suit of the defendant would lie against the former to recover compensation;
for, though the conviction of the witness would lead to a reversal of the
judgment, still he (the defendant) might have suffered damage in the
meantime, which the setting aside of the judgment would not repair. Such
action might, it would seem, be a δίκη
p. 413, Lips.) or
(ib. 492-3). If the name of
the witness had been fraudulently used by the plaintiff, and the witness had
thereby been brought into trouble, there is evidence, as well as
probability, that he had a δίκη βλάβης
against the plaintiff (ib. 415; Dem. c. Aphob.
849.16). The γραφὴ ψευδοκλητείας
before the Thesmothetae, and the question at the trial simply was, whether
the defendant in the former cause had been summoned or not. Theopompus, in a
passage which is perhaps a libel upon the Athenians, says that Athens was
full λωποδυτῶν ψευδομαρτύρων καὶ συκοφαντῶν καὶ
(ap. Ath. vi. p. 254 b). (Pollux, 8.40;
Harpocr. s.v. Bekk. Anecd.
317; Boeckh, Kl.
4.120 ff.; Platner,; Klagen u. Process,
1.417; K. F. Hermann, Staatsalterth.
p. 414 f., Lips.)