Chapter 16

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.

We now turn to the judicial branch, one of the three parts of government. As with public offices, we shall divide our discussion into three parts: who judges, what cases they hear, and how they are chosen. By who judges, I mean whether judges come from the whole population or only certain people. By what cases they hear, I mean how many different courts should be established. By how judges are chosen, I mean whether they are elected by vote or selected by lot. Let us first decide how many different courts there should be. There are eight. The first reviews the conduct of officials after they leave office. The second punishes those who have harmed the public. The third hears cases in which the state is a party. The fourth settles disputes between officials and private individuals appealing fines imposed on them. The fifth settles disputes over contracts of great value. The sixth judges disputes between foreigners, and cases of homicide, of which there are several kinds. All these homicide cases may be tried by the same judges or by different judges. Some killings are premeditated, while others happen by chance during a fight. There is also justifiable homicide, where the killing is admitted but its legality is 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.

Athens also has another court called the Court of Phreattae. It considers questions about a murder committed by someone who has fled, to decide whether he may return. Such cases are rare and occur in very large cities. The seventh court hears cases involving foreigners, whether between two foreigners or between a foreigner and a citizen. The eighth and last court hears small claims, ranging from one to five drachmas, or a little more. These claims also need legal decisions, but should not come before the full body of judges. But let us leave aside the details of murder cases and cases involving foreigners. Instead, let us focus on courts that handle matters more directly connected with the community’s affairs. If these courts are poorly run, they cause unrest and rebellion in the state. There are necessarily four ways to appoint judges when everyone is eligible to judge all these kinds of cases. All may be appointed by vote, or all by lot. Alternatively, some may be appointed by vote and others by lot. Or judges may be appointed by vote for some kinds of cases and by lot for others. Thus there are four types of judges. There [1301a] will be the same number of types if judges are chosen from only part of the people. All judges may be chosen from that group by vote, or all by lot. Alternatively, some may be chosen by lot and others by vote. Or judges for some kinds of cases may be chosen by vote, and judges for others by lot. These arrangements produce the same number of types as before. Different groups of judges may also be combined. I mean judges chosen from the whole people, from part of the people, or from both. All three groups may therefore sit together in the same court, chosen by vote, by lot, or by both methods. That completes our account of the different types of judges. Of these arrangements, allowing the whole community to judge all cases is most suitable for a democracy. Appointing only certain people to judge all cases is most suitable for an oligarchy. Allowing the whole community to judge some cases, but only particular people to judge others, best suits an aristocracy or free state.