chatter.” It is in short the principle that a rule of law must be of general application but that if in a particular concrete case the law may seem to produce a result deemed unfair or unjust or inequitable by the jurors or judges, the law will not be applied. This principle covered by verbiage has been defined to be a correction of the law in some particular of justice, wherein the law by reason of its universality is deficient. In other words, it is a power in a court to suspend the law because it is conceived that in a particular case the rule will produce an unjust result. What could be simpler? Although justice requires a general rule applied to all alike, if there is to be either liberty or equality under the law, yet justice also requires the exact converse of this rule—a suspension or repeal of the law in a particular instance—in order to provide that justice according to law shall not be injustice. It is true that in a later body of law there was a common law and an equitable system, but the latter system had its own settled. rules, and those rules were applied to all alike. The equitable rules actually governed and hence they were the law, whatever the common law might say.
Aristotle seems to have provided for the sphere of public law, but he does not in fact suggest, and a Greek in a city-state was incapable of conceiving, that the individual citizen could have any rights that would be protected from the state. While the Athenian judges were required to take an oath that they would not allow the repudiation of debts or a redivision of the land, confiscations and expropriations of the property of the rich were common. No title that came from the state could be disputed, and the state was left to compensate the robbed citizen. This is our law to-day as to certain taxes. Every one must pay the income tax assessed, even though it be a public stealing and robbery, and must after paying sue to recover the payment. All democracies are alike in their methods.
The Greeks had an arbitrary system of imposing a public service, called a liturgy, upon a particular citizen. Such public services were fitting out ships, equipping embassies, providing dramatic choruses, or contributing to the expenses of religious celebrations. For this condition a remedy was provided whereby a citizen upon whom such a charge was imposed could bring an action against another citizen claiming that the other was better able to respond to the tax. This is much as if one citizen could sue another on the ground that a particular tax imposed was unfair as between them. The imposition of these public burdens was really a form of taxation, and thus early began the system of making a tax unequal by the attempt to make the richer men pay proportionately a much higher tax. It is characteristic of all democracies to attempt this taxation. The best instance we know of is the increase in percentage of taxation with reference to a man’s income. Nothing could be balder than this, but, at least, all men falling under the classification must respond; while at Athens a particular individual was selected to pay an onerous tax. It is idle to speak of law or equality or uniformity under such a system.
It must be evident why it was that Athens had no particular profession or order of men who were learned in the law. Every citizen was competent to know and judge the law. Hence there was no such practice as that of a citizen appearing by attorney or advocate. The citizen must manage his own case and make his own plea. A legal profession was banned, as Plato makes plain in his Laws. All the litigant could do was to hire some orator to write out a speech for him to deliver. The Attic orators wrote many such speeches and it is to those speeches that we are indebted for most of our knowledge of the Athenian law. Judges who knew little of the law, and probably cared less about it, were not a tribunal where a trained lawyer would be of any use. If a man had a contract, the contract when broken was likely to be abrogated if a situation developed where a town-meeting jury would consider an enforcement unjust. If a man had left a will there was no certainty that it would stand, and so it was of every other legal relation. It is no wonder that Aristotle, in his muddy way, sighed for a constitutional system, where laws and not personal caprice would rule; and yet he had a conception of law that prevented any rule of law from prevailing.
The Greeks devised a way of getting certain cases to arbitration. In fact it was a common expedient to agree upon an arbitrator. The arbitrator’s finding, however, could come before a court for enforcement, and when it did it would seem that the record made before the arbitrator was all that could be considered by the court. The attempt to avoid the courts by means of an arbitration was to the Greeks a method of escaping not from the law, but from the trammels of legal procedure. But, of course, it would result then, as often it results now, in the rule of law not being applied to the controversy.
The acute minds of these Athenian Greeks developed a very considerable body of law. Personal security was protected by the usual private remedies for assault, or for slander in public places. There was a well-developed division of law as to artificial persons, such as religious societies approaching our churches, clubs, burial societies, trading societies, privateering or piratical societies, and the like. The by-laws of such organizations were treated as lawful and binding. The modern law of corporations can be traced through Roman law to the Greeks. In the family relations, marriage and divorce had their body of law. Marriage at the order of the parents was the usual rule. The wife became a part of the husband’s family. The relation of guardian and ward was looked after as was the devolution of the property of an intestate. The orator Demosthenes was left by his father, another Demosthenes, an estate of about thirty thousand dollars. His cousin Aphobus became his guardian and squandered most of the estate. Demosthenes, when he came of age, sued him for the property lost. Guardians or conservators could be appointed for spendthrifts squandering their own estate. In the family law the patriarchal household was abolished by the law that the son became emancipated on his enrolment for military service at the age of eighteen.
The laws of Solon gave to every childless citizen the right to make a will, but, of course, the law had not progressed so far as to allow a man to leave all his property away from his children. There was an action at law to set aside a will if made in extreme old age, or when the testator was of unsound mind, or was acting under undue influence, at least under female influence.
The law as to possession and ownership of property was sufficient to protect it, if applied. Damages to property, real or personal, were provided. Damages for acts of one’s animals, or slaves, were given. Leases of land were common. Actions for rent were given. Forcible entry upon possession was forbidden. Even the right to the use of a name could be litigated, and one of Demosthenes’s speeches is about the exclusive right to a name. Such law would protect the exclusive enjoyment of trade names and might prevent unfair trading.
Private international law and the right of citizens in another state were secured by conventions between such cities. These conventions gave to citizens of either state the benefit of the laws of the state where they were sojourning. In many respects the Greeks developed a public international law and some private international law.
There was, of course, the usual confusion between crime and private wrong. Homicide was a private wrong and its prosecution was left to the kindred. A bargain could be made with the slayer. The distinction was made between murder and manslaughter, between an intentional premeditated killing and a killing in sudden passion. There was no law of sanctuary as among the Jews. The law gave the kindred the right to declare a feud against the slayer and the kindred could compromise the matter, unless it were a premeditated killing. In actual murder the only way of avoiding capital punishment was perpetual exile. As we have seen, among the Jews a true murder could not be compromised by a money payment. This sort of law came into our system of law as the legal prohibition against compounding a felony. Justifiable homicide was recognized in Greek law. If the wounded man pardoned his assailant before dying, the kindred could not prosecute for the killing. According to their ideas, the injured man could release the cause of action before his death by a forgiveness. The law is otherwise among us, for the theory of the law seems to be that the deceased has nothing to do with the cause of action. It is given to those who are declared to be entitled to the cause of action.
In the penal law there was a mixture of public law and private law. Assault, false imprisonment, homicide, rape, theft, maiming, slander, and contumelious treatment were treated as private injuries, yet a part of the recovery went to the state. In a number of cases the law inflicted punishment without any private recovery. Adultery was a subject for public prosecution. Personal revenge by a husband for adultery or by the lover of a concubine for poaching on the preserve was justifiable as a part of the primitive law of self-help, and a killing