The inscriptions discussed so far have recorded the public acts of Greek city-states. There are others, though, which bring us closer to private arbitrations, in which the parties chose their own tribunal.
Athens 363BC: a Dispute within the Clan
Two steles found intact in Athens, in excavations of a water conduit, had been reused towards the end of the first Century AD; but they had been created much earlier.42
The first can be dated with confidence to 363BC because of a reference to the eponymous Athenian archon for that year. It comes from Athens at the time when Aristotle and Demosthenes were young men and was intended to be perpetual evidence of an arbitral award between two parts of the Salaminioi clan (genos).43 The parties set it up in the shrine of Athene Sciras, which had special significance for their genos. They had grown apart, each functioning as a separate genos, but they still held land and other Privileges in common and needed to settle their disputed rights and responsibilities. Disputes about religious obligations and privileges often gave rise 288 to interstate conflict,44 but this dispute is between groups rather than states and therefore directly relevant.
13.31 In Chariclides's archonship of the Athenians.45 Stephanus of Myrrhinous, Cleagoras of Acharnae, Aristogeiton of Myrrhinous, Euthycritus of Lamptrae and Cephisodotus of Aithalidae, the arbitrators (diaitetai), mediated a settlement (diellaxan) between the Salaminioi of Heptaphylai and the Salaminioi of Sounion, who agreed with each other that the determination of the arbitrators (haegnosan hoi diaitetai) was good, on the following terms:
The priestly Offices to be common to both sides in perpetuity ...
When any of the priestesses or priests shall die, a choice shall be made by lot out of a pool made up of the members of both groups together.
Those chosen shall officiate on the same terms as before.
The land at the Heracleion and at Porthmus and at the salt-pan and the agora in Code shall be divided into two equal parts of which each side shall have one and they shall mark the boundaries.
They shall sacrifice to the gods and heroes like this: [here follow minute details of the sharing of the flesh and even the skins].
The prerogatives here written shall be paid to the priests and priestesses [here follow the detailed sums].
Both sides shall have all these things inscribed on a common stele and erect it in the shrine of Athene Sciras ....
In Chariclides's archonship, it was those from Heptaphylai who provided the archon.
All written records shall be the common property of both parties.
Anyone who has a contractual right to work land shall pay the rent to each side in equal shares during the continuation of the lease ...
The priestly office of kerux belongs to Thrasycles, according to custom.
All other Claims, whether individual or of the group, up to the month of Boedromion in Chariclides's archonship, are hereby abandoned.
Some land was subject to a lease. It would be divided at the end of the term but until then the rent would be paid to the two sides in equal shares.
This was a private arbitration. There were five arbitrators, presumably two from each side and a fifth chosen by those four.48 The terms used show how natural it was for mediation and adjudication to mingle in what was thought of as an arbitration. It may well be unwise to force each term to have a specific, technical and exclusive meaning equivalent to a modern category. If the processes were not thought of as separate, those who used the words did not distinguish them with the precision, or rather the same precision, of a modern lawyer.
The descriptions of the relations between mediation and arbitration in the public arbitrations preserved in decrees and treaties follow regular patterns and indeed became formulas. Perhaps a more natural picture of the processes can be found in these public announcements of the resolution of private disputes.
The lack of rational sequence in the record of the matters determined is some evidence of how the arbitration was conducted. Presumably the tribunal worked through the items one by one as the parties raised them and disposed of them one after another, recording the parties' agreement, or, if necessary, their own determination (or opinion - something short of adjudication) as they went, rather than waiting for all matters to be disposed of before they delivered and wrote their award in a document from which the stonecutter copied his text.
Dr Johnson, in the sentence quoted at the head of this chapter, was talking about epitaphs. Whether the arbitrators were on oath may well have depended on whether they had at any stage to move from mediation to adjudication, as Isaeus In the Estate of Menecles describes, 10.17. If mediation was successful it seems to have been unnecessary for them to swear an oath. Later inscriptions suggest that the parties also may well have sworn an oath. The award here took its force, after the arbitrators had made their determination, from the agreement to it of the parties: 'who agreed with each other that the determination (or opinion) of the arbitrators was good'.
The problems of translation are neatly exemplified by the word gignosko. It meanings range from 'know, understand, perceive', through 'form an opinion' to 'make a judgment'. Its noun gnome can mean an opinion as well as a judgment. I have used 'determination' consistently to translate it, and 'make a determination' for gignosko. But here, more starkly than in any other passage, the translator's choice 'determines' the most important issue. Did the arbitrators here make an award, binding on the parties, or merely offer an opinion as a step in mediating a settlement?
The text does not make it clear whether the arbitrators made a determination or merely suggested it. That did not matter to them or the parties, 290 who were happy with it. That is what the inscription was concerned to stress. The lack of definition may not be accidental. The members of the tribunal were called by the name normal for arbitrators: diaitetai. The process by which they produced their result was called mediating: diellaxan. The parties agreed to accept their determination after it had been made. That does not mean that they had not also agreed beforehand to accept whatever the arbitrators determined in default of a mediated settlement. But the way it was presented Iooked better and the award had more chance of lasting acceptance, if what was on the stele appeared to be an agreed settlement. On the one hand, the agreement does not seem to be entirely the result of an imposed adjudication. On the other, the parties had not negotiated a settlement, with or without the help of mediators. They left to the arbitrators the diagnosis and suggested cure; but the stele suggests that, while the parties possibly retained the right to reject an award, they had now willingly chosen together to agree entirely to the terms as recommended by the reconcilers (dialutai) and as there set out. Whatever their original agreement may have provided, the parties were able to change it. What they finally did was agree to the arbitrators' conclusions. The presentation of the agreement is a political matter: how the parties now decide they prefer to portray the result of this process to one another, their successors and the whole world, by the most permanent means they know.
The award does not set out the issues between the parties. The arbitrators reveal nothing of their reasons. After all, the settlement is the only thing that matters. The settlement puts an end to all claims by either party and any of its members in existence at the beginning of the month Boedromion. The award must have been pronounced soon thereafter.49
After a space there follow further provisions relating to the enforcement of the award:
13.32 When Diphilus of Sounion, son of Diopithes, was archon for the Salaminioi, the following Salaminioi of Sounion took the oath [there follow seven names]. When Antisthenes of Acharnae, son of Antigenes, was archon for the Salaminioi, the following Salaminioi of Heptaphylai took the oath [there follow seven names, including that of the kerux Thrasycles].
So that the Salaminioi should for ever make sacrifices to the gods and heroes in accordance with the custom, and so that those things should be done which the mediators (diallaktai) had mediated (diellaxan) and to which the representatives had sworn, the Salaminioi should resolve that the archon Aristarchus should write down all the sacrifices and the allowances to the priests on the stele on which are the terms of the mediated settlement (diallagai) so that for ever both291
Then follow the details of the sacrifices ordained for the various months.
The inscription concludes:
There may have been some rule for its members that disputes within the clan should be settled by such mediation and arbitration and not brought before the dikasterion of the city. The last words quoted would suggest that that prohibition would be lifted, and any member might bring an action, against one who attempted to undermine the settlement.
Athens c250BC: a Further Dispute within the Clan
The second stele records the outcome of a further dispute between the same parties. It cannot be dated with the same accuracy, because even if, as seems certain,51 Phanomachus was the eponymous archon of the city rather than one of the archons of the clan, we do not know his dates. From the style of the inscription it would appear to have been written about a Century after the first.52 It is the result of a more detailed private mediation-arbitration.
13.34 In the month of Mounichion in the archonship of Phanomachus, at the Heracleia. The genos of the Sounians and that of those from Heptaphylai were reconciled by their chosen conciliators (dialutai), Antigenes of Semachidae and Calliteles of Sounion.
That part of the plot of land of Heracles which includes the altars and lies beyond the railing as far as the first olive trees shall lie fallow [for religious purposes]. The remainder of that plot shall be bounded on the north side by the first wall; on the east side by the markers which mark the boundaries of the lands; on the west side by both of the embateres, those towards the sea and that above.53 And this plot of land shall belong to both of the clans in common.
The Salaminioi of Sounion shall prepare a threshing-floor on the common plot, the same size as their own, at their expense. That shall be the threshing-floor of the Salaminioi of Heptaphylai. But the house which is alongside the plot shall belong as of old to the Salaminioi of Heptaphylai in line with both the gates which are from the sea and with the markers which mark the lands in a straight 292 line. The other house, on the east side, shall belong as of old to the Salaminioi of Sounion, in line with the gates from the sea and with the markers which mark the lands in a straight line.
Each clan shall have a half share of the gardens and the well. Both clans shall hold in common the salt-pan and the agora in Coile.
The Salaminioi of Sounion shall keep as of old those lands to the east as the markers lie. The Salaminioi of Heptaphylai shall keep as of old those lands to the west as the markers lie, with the sacred arable land.
I have translated the peculiarly formed archaio 'as of old'; it probably refers to traditional clan land, owned by the genos from time immemorial. The houses were not mentioned in the earlier award. They were presumably built during the intervening Century. This settlement filled a gap in the earlier one by specifying which group should have which half of the land. The previous division of the salt-pan and the agora into halves had obviously not worked and it was now provided that they should be held in common.
The tribunal was chosen by the parties, one arbitrator each. They were called by a name that had no technical significance, dialutai, 'resolvers' or 'conciliators'. They would almost certainly be Outsiders rather than members of either part of the Salaminioi. They must have had access to the terms of the earlier award, which seems to have worked well for nearly a hundred years. The restoration of peace in 261BC reopened access between Athens and Sounion and provided the opportunity for these negotiations.
42 WS Ferguson 'The Salaminioi of Heptaphylai and Sounion' (1938) 1-74, where the columns are illustrated. The first measured 1.33m high, 43cm Wide (top) 49cm (bottom), and 12cm thick; the second 77cm high, 25cm wide (top) 31cm (bottom) and 7 to 8.5cm thick. I have used the transcription of the text provided by this article, which has overcome the difficulties created by the stonecutter's mistakes and omissions. Some of Ferguson's conclusions are challenged by Scafuro The Forensic Stage p399.
43 Salaminioi means people from Salamis. It is a pleasant coincidence that the claim Athens made to Salamis was itself the subject of a famous arbitration, see Chapter 6 at 6.7 for Solon's part in it.
44 Ager Interstate Arbitrations p4.
45 Charicles was the eponymous archon for Athens, for the year which started in the equivalent of our July 363 and ran to June 362BC. The Athenians fixed the year by reference to his name. There were eight other archons for the whole city, see Chapter 4, and the title was also used for clan officials.
46 Not for the whole of Athens, of course, but just to act as an official for the Salaminioi.
47 Kerux is usually translated 'herald', as discussed in Chapter 3. His functions included those of steward and marshal in assemblies but, in this context, perhaps some hieratic duties. The oschophoroi were boys, clad in antique dress contemporaries thought was feminine and carrying vine boughs laden with grapes. The deipnophoroi carried offerings of food.
48 Some are known from other inscriptions, Ferguson 'The Salaminioi' 49-50.
49 This and other matters are convincingly dealt with in Ferguson's skilful and scrupulous commentary.
50 Presumably moved a motion in the assembly of the Salaminioi.
51 Ferguson'The Salaminioi'69.
52 Ferguson'The Salaminioi'9.
53 The meaning of embateres is not quite clear, perhaps 'embarking-places', wharves or piers, Ferguson 70-1; and 14.13.