at Athens, in comparison with such justice as might have been
expected from individual magistrates, we have to consider, first,
that personal and pecuniary corruption seems to have been a common
vice among the leading men of Athens and Sparta, when acting
individually or in boards of a few members, and not uncommon even
with the kings of Sparta,—next, that in the Grecian cities generally,
as we know even from the oligarchical Xenophon (he particularly
excepts Sparta), the rich and great men were not only insubordinate
to the magistrates, but made a parade of showing that they cared
nothing about them.[694] We know, also, from the same unsuspected
source,[695] that while the poorer Athenian citizens who served
on ship board were distinguished for the strictest discipline, the
hoplites, or middling burghers, who formed the infantry, were less
obedient, and the rich citizens who served on horseback the most
disobedient of all. To make rich and powerful criminals effectively
amenable to justice, has indeed been found so difficult everywhere,
until a recent period of history, that we should be surprised if
it were otherwise in Greece. When we follow the reckless demeanor
of rich men like Kritias, Alkibiadês,[696] and Meidias, even under
the full grown democracy of Athens, we may be very sure that their
predecessors under the Kleisthenean constitution would have been
often too formidable to be punished or kept down by an individual
archon of ordinary firmness,[697] even assuming him to be upright
and wellintentioned. Now the dikasteries established by Periklês
were inaccessible both to corruption and intimidation: their number,
their secret suffrage, and the impossibility of knowing beforehand
what individuals would sit in any particular cause, prevented both
the one and the other. And besides that the magnitude of their
number, extravagant, according to our ideas of judicial business, was
essential to this tutelary effect,[698] it served farther to render
the trial solemn and the verdict imposing on the minds of parties and
spectators, as we may see by the fact that, in important causes, the
dikastery was doubled or tripled. Nor was it possible, by any other
means than numbers,[699] to give dignity to an assembly of citizens,
of whom many were poor, some old, and all were despised individually
by rich accused persons who were brought before them,—as Aristophanês
and Xenophon give us plainly to understand.[700] If we except the
strict and peculiar educational discipline of Sparta, these numerous
dikasteries afforded the only organ which Grecian politics could
devise, for getting redress against powerful criminals, public as
well as private, and for obtaining a sincere and uncorrupt verdict.
[694] Xenophon, De Republ. Laced. c. 8, 2. Τεκμαίρομαι δὲ ταῦτα,
ὅτι ἐν μὲν ταῖς ἄλλαις πόλεσιν οἱ δυνατώτεροι ~οὔτε βούλονται
δοκεῖν τὰς ἀρχὰς φοβεῖσθαι, ἀλλὰ νομίζουσι τοῦτο ἀνελεύθερον
εἶναι~· ἐν δὲ τῇ Σπάρτῃ οἱ κράτιστοι καὶ ὑπέρχονται μάλιστα τὰς
ἀρχάς, etc.
Respecting the violent proceedings committed by powerful men at
Thebes, whereby it became almost impossible to procure justice
against them for fear of being put to death, see Dikæarchus, Vit.
Græc. Fragm. ed. Fabr. p. 143, and Polybius, xx, 4, 6; xxiii, 2.
[695] Xenophon, Memorab. iii, 5, 18. Μηδαμῶς, ἔφη ὁ Σωκράτης,
ὦ Περίκλεις, οὕτως ἥγου ἀνηκέστῳ πονηρίᾳ νοσεῖν Ἀθηναίους·
Οὐχ ὁρᾷς, ~ὡς εὔτακτοι μέν εἰσιν ἐν τοῖς ναυτικοῖς~, εὐτάκτως
δ’ ἐν τοῖς γυμνικοῖς ἀγῶσι πείθονται τοῖς ἐπιστάταις, οὐδένων
δὲ καταδεέστερον ἐν τοῖς χοροῖς ὑπηρετοῦσι τοῖς διδασκάλοις;
Τοῦτο γάρ τοι, ἔφη, καὶ θαυμαστόν ἐστι· ~τὸ τοὺς μὲν τοιούτους
πειθαρχεῖν τοῖς ἐφεστῶσι, τοὺς δὲ ὁπλίτας, καὶ τοὺς ἱππεῖς, οἳ
δοκοῦσι καλοκαγαθίᾳ προκεκρίσθαι τῶν πολιτῶν, ἀπειθεστάτους εἶναι
πάντων~.
[696] See Xenophon, Memorab. i, 2, 12-25; Thucyd. vi, 15, and the
speech which he gives as spoken by Alkibiadês in the assembly,
vi, 17; Plutarch, Alkibiad. c. 7-8-16, and the Oration of
Demosthenês against Meidias throughout: also Fragm. v. of the
Πέλαργοι of Aristophanês, Meineke, ii, p. 1128.
[697] Sir Thomas Smith, in his Treatise on the Commonwealth
of England, explains the Court of Star-chamber as originally
constituted in order “to deal with offenders too stout for the
ordinary course of justice.” The abundant compounds of the Greek
language furnish a single word exactly describing this same class
of offenders,—Ὑβριστόδικαι—the title of one of the lost comedies
of Eupolis: see Meineke, Historia Critica Comicorum Græcorum,
vol. i, p. 145.
Dean Tucker observes, in his Treatise on Civil Government:
“There was hardly a session of parliament, from the time of
Henry the Third to Henry the Eighth, but laws were enacted for
restraining the feuds, robberies, and oppressions of the barons
and their dependents on the one side,—and to moderate and check
the excesses and extortions of the royal purveyors on the other;
these being the two capital evils then felt. Respecting the
tyranny of the ancient baronage, even squires as well as others
were not ashamed to wear the liveries of their leaders, and to
glory in every badge of distinction, whereby they might be known
to be retained as the bullies of such or such great men, and
to engage in their quarrels, just or unjust, right or wrong.
The histories of those times, together with the statutes of the
realm, inform us that they associated (or, as they called it,
_confederated_ together) in great bodies, parading on horseback
in fairs and markets, and clad in armor, to the great terror
of peaceable subjects; nay, that they attended their lords to
parliament, equipped in the same military dress, and even dared
sometimes to present themselves before the judge of assize,
and to enter the courts of justice, in a hostile manner,—while
their principals sat with the judges on the bench, intimidating
the witnesses, and influencing the juries by looks, nods, signs
and signals.” (Treatise concerning Civil Government, p. 337, by
Josiah Tucker, D. D. London, 1781.)
The whole chapter (pp. 301-355) contains many statutes and much
other matter, illustrating the intimidation exercised by powerful
men in those days over the course of justice.
A passage among the Fragmenta of Sallust, gives a striking
picture of the conduct of powerful citizens under the Roman
Republic. (Fragm. lib. i, p. 158, ed. Delph.)
“At discordia, et avaritia, et ambitio, et cætera secundis
rebus oriri sueta mala, post Carthaginis excidium maximè aucta
sunt. Nam injuriæ validiorum, et ob eas discessio plebis à
Patribus, aliæque dissensiones domi fuere jam inde à principio:
neque amplius, quam regibus exactis, dum metus à Tarquinio et
bellum grave cum Etruriâ positum est, æquo et modesto jure
agitatum: dein, servili imperio patres plebem exercere: de vitâ
atque tergo, regio more consulere: agro pellere, et à cæteris
expertibus, soli in imperio agere. Quibus servitiis, et maximè
fœnoris onere, oppressa plebes, cum assiduis bellis tributum
simul et militiam toleraret, armata Montem Sacrum et Aventinum
insedit. Tumque tribunos plebis, et alia sibi jura paravit.
Discordiarum et certaminis utrimque finis fuit secundum bellum
Punicum.”
Compare the exposition of the condition of the cities throughout
Europe in the thirteenth, fourteenth, and fifteenth centuries, in
Hüllmann’s Städte-Wesen des Mittelalters, especially vol. iii,
pp. 196-199, _seqq._
The memorable institution which spread through nearly all the
Italian cities during these centuries, of naming as podesta, or
supreme magistrate, a person not belonging to the city itself,
to hold office for a short time,—was the expedient which they
resorted to for escaping the extreme perversion of judicial and
administrative power, arising out of powerful family connections.
The restrictions which were thought necessary to guard against
either favor or antipathies on the part of the podesta, are
extremely singular. (Hüllmann, vol. iii, pp. 252-261, _seqq._)
“The proceedings of the patrician families in these cities
(observes Hüllmann) in respect to the debts which they owed, was
among the worst of the many oppressions to which the trading
classes were exposed at their hands, one of the greatest abuses
which they practised by means of their superior position. How
often did they even maltreat their creditors, who came to demand
merely what was due to them!” (Städte-Wesen, vol. ii, p. 229.)
Machiavel’s History of Florence illustrates, throughout, the
inveterate habit of the powerful families to set themselves above
the laws and judicial authority. Indeed, he seems to regard this
as an incorrigible chronic malady in society, necessitating
ever-recurring disputes between powerful men and the body of the
people. “The people (he says) desire to live according to the
laws; the great men desire to overrule the laws: it is therefore
impossible that the two should march in harmony.” “Volendo il
popolo vivere secondo le leggi, e i potenti comandare a quelle,
non è possibile che capino insieme.” (Machiavelli, Istorie
Fiorentine, liv. ii, p. 79, ad ann. 1282.)
The first book of the interesting tale, called the Promessi
Sposi, of Manzoni,—itself full of historical matter, and
since published with illustrative notes by the historian
Cantù,—exhibits a state of judicial administration, very similar
to that above described, in the Milanese, during the sixteenth
and seventeenth centuries: demonstrated by repeated edicts, all
ineffectual, to bring powerful men under the real control of the
laws.
Because men of wealth and power, in the principal governments of
modern Europe, are now completely under the control of the laws,
the modern reader is apt to suppose that this is the natural
state of things. It is therefore not unimportant to produce some
references, which might be indefinitely multiplied, reminding
him of the very different phenomena which past history exhibits
almost everywhere.
[698] The number of Roman judices employed to try a criminal
cause under the _quæstiones perpetuæ_ in the last century and a
half of the Republic, seems to have varied between one hundred,
seventy-five, seventy, fifty-six, fifty-one, thirty-two, etc.
(Laboulaye, Essai sur les Loix Criminelles des Romains, p. 336,
Paris, 1845.)
In the time of Augustus, there was a total of four thousand
judices at Rome, distributed into four decuries (Pliny, H. N.
xxxiii, 1, 31).
The venality, as well as the party corruption of these Roman
judices, or jurors, taken from the senatorial and equestrian
orders, the two highest and richest orders in the state,—was
well-known and flagrant (Appian, Bell. Civ. i, 22, 35, 37;
Laboulaye, ibid. pp. 217-227; Walter, Geschichte des Römischen
Rechts, ch. xxviii, sect. 237, 238; Asconius in Ciceron. Verrin.
pp. 141-145, ed. Orell.; and Cicero himself, in the remarkable
letter to Atticus, Ep. ad Attic. i, 16).
[699] Numerous dikasteries taken by lot seem to have been
established in later times in Rhodes and other Grecian cities,
though Rhodes was not democratically constituted, and to have
worked satisfactorily. Sallust says (in his Oratio ii. ad Cæsarem
de Republicâ ordinandâ, p. 561, ed. Cort.): “Judices à paucis
probari regnum est; ex pecuniâ legi, inhonestum. Quare omnes
primæ classis judicare placet; sed numero plures quam judicant.
Neque Rhodios, neque alias civitates unquam suorum judiciorum
pœnituit; ubi promiscuè dives et pauper, ut cuique sors tulit, de
maximis rebus juxtà ac de minimis disceptat.”
The necessity of a numerous judicature, in a republic where
there is no standing army, or official force professionally
constituted, as the only means of enforcing public-minded justice
against powerful criminals, is insisted upon by Machiavel,
Discorsi sopra Tito Livio, lib. i, c. 7.
“Potrebbesi ancora allegare, a fortificazione della soprascritta
conclusione, l’accidente seguito pur in Firenze contra Piero
Soderini: il quale al tutto seguì per non essere in quella
republica alcuno modo di accuse contro alla ambizione dei potenti
cittadini: perchè lo accusare un potente a otto giudici in una
republica, non basta: bisogna che i giudici siano assai, perchè
pochi sempre fanno a modo de’ pochi,” etc.: compare the whole of
the same chapter.
[700] Aristophan. Vesp. 570; Xenophon, Rep. Ath. i, 18. We are
not to suppose that _all_ the dikasts who tried a cause were very
poor: Demosthenês would not talk to very poor men, as to “the
slave whom each of them might have left at home.” (Demosthenês
cont. Stephan. A. c. 26, p. 1127.)
It was criminal by law in the dikasts to receive bribes in the
exercise of their functions, as well as in every citizen to
give money to them (Demosth. cont. Steph. B. c. 13, p. 1137).
And it seems perfectly safe to affirm that in practice the
dikasts were never tampered with beforehand: had the fact been
otherwise, we must have seen copious allusions to it in the many
free-spoken pleadings which remain to us, just as there are in
the Roman orators: whereas, in point of fact, there are hardly
any such allusions. The word δεκάζων (in Isokratês de Pac. Or.
viii, p. 169, sect. 63) does not allude to obtaining by corrupt
means verdicts of dikasts in the dikastery, but to obtaining by
such means votes for offices in the public assembly, where the
election took place by show of hands. Isokratês says that this
was often done in his time, and so perhaps it may have been: but
in the case of the dikasteries, much better security was taken
against it.
The statement of Aristotle (from his Πολιτεῖαι, Fragm. xi, p.
69, ed. Neumann: compare Harpokration v. Δεκάζειν; Plutarch,
Coriolan. c. 14; and Pollux, viii, 121) intimates that Anytus was
the first person who taught the art τοῦ δεκάζειν τὰ δικαστήρια,
a short time before the battle of Ægos Potamos. But besides,
that the information on this point is to the last degree vague,
we may remark that between the defeat of the oligarchy of Four
Hundred and the battle of Ægos Potamos, the financial and
political condition of Athens was so exceedingly embarrassed,
that it may well be doubted whether she could maintain the paid
dikasteries on the ordinary footing. Both all the personal
service of the citizens, and all the public money, must have been
put in requisition at that time for defence against the enemy,
without leaving any surplus for other purposes: there was not
enough even to afford constant pay to the soldiers and sailors
(compare Thucyd. vi, 91; viii, 69, 71, 76, 86). If therefore, in
this time of distress, the dikasteries were rarely convoked, and
without any certainty of pay, a powerful accused person might
find it more easy to tamper with them beforehand, than it had
been before, or than it came to be afterwards, when the system
was regularly in operation. We can hardly reason with safety,
therefore, from the period shortly preceding the battle of Ægos
Potamos, either to that which preceded the Sicilian expedition,
or to that which followed the subversion of the Thirty.
Taking the general working of the dikasteries, we shall find that
they are nothing but jury-trial applied on a scale broad, systematic,
unaided, and uncontrolled, beyond all other historical experience,
and that they therefore exhibit in exaggerated proportions both the
excellences and the defects characteristic of the jury-system, as
compared with decision by trained and professional judges. All the
encomiums, which it is customary to pronounce upon jury-trial, will
be found predicable of the Athenian dikasteries in a still greater
degree: all the reproaches, which can be addressed on good ground
to the dikasteries, will apply to modern juries also, though in a
less degree. Nor is the parallel less just, though the dikasteries,
as the most democratical feature of democracy itself, have been
usually criticized with marked disfavor,—every censure, or sneer,
or joke against them, which can be found in ancient authors, comic
as well as serious, being accepted as true almost to the letter;
while juries are so popular an institution, that their merits have
been over-stated, in England at least, and their defects kept out
of sight. The theory of the Athenian dikastery, and the theory of
jury-trial, as it has prevailed in England since the revolution
of 1688, are one and the same: recourse to a certain number of
private citizens, taken by chance, or without possibility of knowing
beforehand who they will be, sworn to hear fairly and impartially
plaintiff and defendant, accuser and accused, and to find a true
verdict, according to their consciences, upon a distinct issue
before them. But in Athens this theory was worked out to its natural
consequences; while English practice, in this respect as in so many
others, is at variance with English theory: the jury, though an
ancient and a constant portion of the judicial system, has never been
more than a portion,—kept in subordination, trammels, and pupilage,
by a powerful crown, and by judges presiding over an artificial
system of law. In the English state trials, down to a period not
long before the revolution of 1688, any jurors who found a verdict
contrary to the dictation of the judge were liable to fine; and at an
earlier period, if a second jury on being summoned found an opposite
verdict, even to the terrible punishment of attaint.[701] And
though, for the last century and a half, the verdict of the jury has
been free as to matters of fact, new trials having taken the place
of the old attaint, yet the ascendency of the presiding judge over
their minds, and his influence over the procedure as the authority on
matters of law, has always been such as to overrule the natural play
of their feelings and judgment as men and citizens,[702] sometimes to
the detriment, much oftener to the benefit—always excepting political
trials—of substantial justice. But in Athens, the dikasts judged of
the law as well as of the fact: the laws were not numerous, and were
couched in few, for the most part familiar, words. To determine how
the facts stood, and whether, if the facts were undisputed, the law
invoked was properly applicable to them, were parts of the integral
question submitted to them, and comprehended in their verdict:
moreover, each dikastery construed the law for itself, without being
bound to follow the decisions of those which had preceded it, except
in so far as such analogy might really influence the convictions of
the members. They were free, self-judging persons, unassisted by the
schooling, but at the same time untrammelled by the awe-striking
ascendency, of a professional judge, obeying the spontaneous
inspirations of their own consciences, and recognizing no authority
except the laws of the city, with which they were familiar.
[701] Mr. Jardine, in his interesting and valuable publication,
Criminal Trials, vol. i, p. 115, after giving an account of the
trial of Sir Nicholas Throckmorton in 1553, for high treason,
and his acquittal, observes: “There is one circumstance in
this trial, which ought not to be passed over without an
observation. It appears that after the trial was over, the jury
were required to give recognizances to answer for their verdict,
and were afterwards imprisoned for nearly eight months, and
heavily fined, by a sentence of the Star-chamber. Such was the
security which the trial by jury afforded to the subject in
those times: and such were the perils to which juries were then
exposed, who ventured to act upon their conscientious opinions
in state prosecutions! But even these proceedings against the
jury, monstrous as they appear to our improved notions of the
administration of justice, must not be considered as a wanton
exercise of unlawful power on this particular occasion. The
fact is, that the judges of England had for centuries before
exercised a similar authority, though not without some murmuring
against it; and it was not until more than a century after it,
in the reign of Charles the Second, that a solemn decision was
pronounced against its legality.”
... “In the reign of James the First, it was held by the Lord
Chancellor Egerton, together with the two Chief Justices and
the Chief Baron, that when a party indicted is _found guilty on
the trial_, the jury shall not be questioned; but on the other
side, when a jury hath _acquitted_ a felon or a traitor against
manifest proof, they may be charged in the Star-chamber for their
partiality in finding a manifest offender not guilty. After the
abolition of the Star-chamber, there were several instances in
the reign of Charles the Second, in which it was resolved, that
both grand and petit juries might be fined for giving verdicts
against plain evidence and the directions of the court.” Compare
Mr. Amos’s Notes on Fortescue, De Laudibus Legum Angliæ, c. 27.
[702] Respecting the French juries, M. Cottu (Réflexions sur la
Justice Criminale, p. 79) remarks:—
“Le désir ardent de bien faire dont les jurés sont généralement
animés, et la crainte de s’égarer, les jette dans une obéissance
passive à l’impulsion qui leur est donnée par le président de la
Cour d’Assise, et si ce magistrat sait s’emparer de leur estime,
alors leur confiance en lui ne connoit plus de bornes. Ils le
considèrent comme l’étoile qui doit les guider dans l’obscurité
qui les environne, et pleins d’un respect aveugle pour son
opinion, ils n’attendent que la manifestation qu’il leur en fait
pour la sanctionner par leur déclaration. Ainsi au lieu de deux
juges que l’accusé devoit avoir, il n’en a bien souvent qu’un
seul, qui est le président de la Cour d’Assise.”
Anselm Feuerbach (in the second part of his work, Ueber die
Oeffentlichkeit und Mündlichkeit der Gerechtigkeitspflege, which
contains his review of the French judicial system, Ueber die
Gerichtsverfassung Frankreichs, Abt. iii, H. v, p. 477) confirms
this statement from a large observation of the French courts of
justice.
The habit of the French juries, in so many doubtful cases, to
pronounce a verdict of guilty, by a majority of seven against
five, in which case the law threw the actual condemnation upon
the judges present in court, directing their votes to be counted
along with those of the jury, is a remarkable proof of this
aversion of the jury to the responsibility of decision; see
Feuerbach, ibid. p. 481, _seqq._ Compare also the treatise of
the same author, Betrachtungen über das Geschwornen Gericht. pp.
186-198.
Trial by jury, as practised in England since 1688, has been
politically most valuable, as a security against the encroachments
of an anti-popular executive: partly for this reason, partly for
others, not necessary to state here, it has had greater credit as
an instrument of judicature generally, and has been supposed to
produce much more of what is good in English administration of
justice, than really belongs to it. Amidst the unqualified encomiums
so frequently bestowed upon the honesty, the unprejudiced rectitude
of appreciation, the practical instinct for detecting falsehood
and resisting sophistry, in twelve citizens taken by hazard and
put into a jury-box,—comparatively little account is taken either
of the aids, or of the restrictions, or of the corrections in the
shape of new trials, under which they act, or of the artificial
forensic medium into which they are plunged for the time of their
service: so that the theory of the case presumes them to be more of
spontaneous agents, and more analogous to the Athenian dikasts than
the practice confirms. Accordingly, when we read these encomiums in
modern authors, we shall find that both the direct benefits ascribed
to jury-trial in insuring pure and even-handed justice, and still
more its indirect benefits in improving and educating the citizens
generally, might have been set forth yet more emphatically in a
laudatory harangue of Periklês about the Athenian dikasteries. If it
be true that an Englishman or an American counts more certainly on an
impartial and uncorrupt verdict from a jury of his country, than from
a permanent professional judge, much more would this be the feeling
of an ordinary Athenian, when he compared the dikasteries with the
archon. The juror hears and judges under full persuasion that he
himself, individually, stands in need of the same protection or
redress invoked by others: so also did the dikast. As to the effects
of jury-trial, in diffusing respect to the laws and constitution, in
giving to every citizen a personal interest in enforcing the former
and maintaining the latter, in imparting a sentiment of dignity to
small and poor men, through the discharge of a function exalted
as well as useful, in calling forth the patriotic sympathies, and
exercising the mental capacities of every individual; all these
effects were produced in a still higher degree by the dikasteries at
Athens; from their greater frequency, numbers, and spontaneity of
mental action, without any professional judge, upon whom they could
throw the responsibility of deciding for them.[703]
[703] I transcribe from an eminent lawyer of the United States,
Mr. Livingston, author of a Penal Code for the State of Louisiana
(Preface, pp. 12-16), an eloquent panegyric on trial by jury.
It contains little more than the topics commonly insisted on,
but it is expressed with peculiar warmth, and with the greater
fulness, inasmuch as the people of Louisiana, for whom the author
was writing, had no familiarity with the institution and its
working. The reader will observe that almost everything here said
in recommendation of the jury might have been urged by Periklês
with much truer and wider application, in enforcing his transfer
of judicial power from individual magistrates to the dikasteries.
“By our constitution (_i. e._ in Louisiana), the right of a trial
by jury is secured to the accused, but it is not exclusively
established. This, however, may be done by law, and there are
so many strong reasons in its favor, that it has been thought
proper to insert in the codes a precise declaration that, in all
criminal prosecutions, the trial by jury is a privilege which
cannot be renounced. Were it left entirely at the option of the
accused, a desire to propitiate the favor of the judge, ignorance
of his interest, or the confusion incident to his situation,
might induce him to waive the advantage of a trial by his
country, and thus by degrees accustom the people to a spectacle
which they ought never to behold,—a single man determining the
fact, applying the law, and disposing at his will of the life,
liberty, and reputation of a citizen.... Those who advocate
the present disposition of our law say,—admitting the trial by
jury to be an advantage, the law does enough when it gives the
accused the option to avail himself of its benefits; he is the
best judge whether it will be useful to him; and it would be
unjust to direct him in so important a choice. This argument is
specious, but not solid. There are reasons, and some have already
been stated, to show that this choice cannot be freely exercised.
There is, moreover, another interest besides that of the culprit
to be considered. If he be guilty, the state has an interest
in his conviction: and, whether guilty or innocent, it has a
higher interest,—that the fact should be fairly canvassed before
judges inaccessible to influence, and unbiased by any false views
of official duty. It has an interest in the character of its
administration of justice, and a paramount duty to perform in
rendering it free from suspicion. It is not true, therefore, to
say that the laws do enough when they give the choice between a
fair and impartial trial, and one that is liable to the greatest
objections. They must do more; they must restrict that choice, so
as not to suffer an ill-advised individual to degrade them into
instruments of ruin, though it should be voluntarily inflicted;
or of death, though that death should be suicide.
“Another advantage of rendering this mode of trial obligatory
is, that it diffuses the most valuable information among every
rank of citizens; it is a school, of which every jury that is
impanelled is a separate class, where the dictates of the laws,
and the consequences of disobedience to them, are practically
taught. The frequent exercise of these important functions,
moreover, gives a sense of dignity and self-respect, not only
becoming to the character of a free citizen, but which adds
to his private happiness. Neither party-spirit, nor intrigue,
nor power, can deprive him of this share in the administration
of justice, though they can humble the pride of every other
office and vacate every other place. Every time he is called
on to act in this capacity, he must feel _that though placed
in the humblest station, he is yet the guardian of the life,
the liberty, and the reputation of his fellow-citizens against
injustice and oppression; and that while his plain understanding
has been found the best refuge for innocence, his incorruptible
integrity is pronounced a sure pledge that guilt will not
escape_. A state whose _most obscure citizens_ are thus
individually elevated to perform these august functions; who
are alternately the defenders of the injured, the dread of the
guilty, the vigilant guardians of the constitution; without whose
consent no punishment can be inflicted, no disgrace incurred;
who can by their voice arrest the blow of oppression, and direct
the hand of justice where to strike,—such a state can never sink
into slavery, or easily submit to oppression. Corrupt rulers
may pervert the constitution: ambitious demagogues may violate
its precepts: foreign influence may control its operations; but
while the people enjoy the trial by jury, taken by lot from
among themselves, they cannot cease to be free. The information
it spreads, the sense of dignity and independence it inspires,
the courage it creates, will always give them an energy of
resistance that can grapple with encroachments, and a renovating
spirit that will make arbitrary power despair. The enemies of
freedom know this: they know how admirable a vehicle it is, to
convey the contagion of those liberal principles which attack
the vitals of their power, and they therefore guard against
its introduction with more care than they would take to avoid
pestilential disease. In countries where it already exists, they
insidiously endeavor to innovate, because they dare not openly
destroy: changes inconsistent with the spirit of the institution
are introduced, under the plausible pretext of improvement: _the
common class of citizens are too ill-informed to perform the
functions of jurors,—a selection is necessary_. This choice must
be confided to an agent of executive power, and must be made
among the most eminent for education, wealth, and respectability;
so that, after several successful operations of political
chemistry, a shining result may be obtained, freed, indeed,
from all republican dross, but without any of the intrinsic
value that is found in the rugged but inflexible integrity, and
incorruptible worth, of the original composition. Men impanelled
by this process, bear no resemblance but in name to _the sturdy,
honest, unlettered jurors who derive no dignity but from the
performance of their duties; and the momentary exercise of
whose functions gives no time for the work of corruption or the
influence of fear_. By innovations such as these the institution
is so changed as to leave nothing to attach the affections or
awaken the interest of the people, and it is neglected as an
useless, or abandoned as a mischievous, contrivance.”
Consistently with this earnest admiration of jury-trial, Mr.
Livingston, by the provisions of his code, limits very materially
the interference of the presiding judge, thus bringing back the
jurors more nearly to a similarity with the Athenian dikasts
(p. 85): “I restrict the charge of the judge to an opinion of
the law, and to the repetition of the evidence, _only when
required by any one of the jury_. The practice of repeating all
the testimony from notes, always (from the nature of things)
imperfectly, not seldom inaccurately, and sometimes carelessly
taken,—has a double disadvantage: it makes the jurors, who rely
more on the judge’s notes than on their own memory, inattentive
to the evidence: and it gives them an imperfect copy of that
which the nature of the trial by jury requires that they should
record in their own minds. Forced to rely upon themselves, the
necessity will quicken their attention, and it will be only
when they disagree in their recollection, that recourse will be
had to the notes of the judge.” Mr. Livingston goes on to add,
that the judges, from their old habits, acquired as practising
advocates, are scarcely ever neutral,—almost always take a side,
and generally against the prisoners on trial.
The same considerations as those which Mr. Livingston here sets
forth to demonstrate the value of jury-trial, are also insisted
upon by M. Charles Comte, in his translation of Sir Richard
Phillips’s Treatise on Juries, enlarged with many valuable
reflections on the different shape which the jury-system has
assumed in England and France. (Des Pouvoirs et des Obligations
des Jurys, traduit de l’Anglois, par Charles Comte, 2d ed. Paris,
1828, with preliminary Considérations sur le Pouvoir Judiciaire,
pp. 100, _seqq._)
The length of this note forbids my citing anything farther either
from the eulogistic observations of Sir Richard Phillips or from
those of M. Comte: but they would be found, like those of Mr.
Livingston, even more applicable to the dikasteries of Athens
than to the juries of England and America.
On the other hand, the imperfections inherent in jury-trial were
likewise disclosed in an exaggerated form under the Athenian
system. Both juror and dikast represent the average man of the
time and of the neighborhood, exempt, indeed, from pecuniary
corruption or personal fear, deciding according to what he thinks
justice, or to some genuine feeling of equity, mercy, religion, or
patriotism, which in reference to the case before him he thinks
as good as justice,—but not exempt from sympathies, antipathies,
and prejudices, all of which act the more powerfully because there
is often no consciousness of their presence, and because they
even appear essential to his idea of plain and straight-forward
good sense. According as a jury are composed of Catholics or
Protestants, Irishmen or Englishmen, tradesmen, farmers, or
inhabitants of a frontier on which smuggling prevails, there is
apt to prevail among them a corresponding bias: at the time of any
great national delusion, such as the Popish Plot,—or of any powerful
local excitement, such as that of the Church and King mobs, at
Birmingham, in 1791, against Dr. Priestley and the Dissenters,—juries
are found to perpetrate what a calmer age recognizes to have
been gross injustice. A jury who disapprove of the infliction of
capital punishment for a particular crime, will acquit prisoners
in spite of the clearest evidence of guilt. It is probable that a
delinquent, indicted for any state offence before the dikastery,
at Athens,—having only a private accuser to contend against, with
equal power of speaking in his own defence, of summoning witnesses,
and of procuring friends to speak for him,—would have better chance
of a fair trial than he would now have anywhere, except in England
and the United States of America; and better than he would have had
in England down to the seventeenth century.[704] Juries bring the
common feeling as well as the common reason of the public,—or often,
indeed, only the separate feeling of particular fractions of the
public,—to dictate the application of the law to particular cases:
they are a protection against anything worse,—especially against
such corruption and servility as are liable to taint permanent
official persons, but they cannot possibly reach anything better.
Now the dikast trial at Athens effected the same object, and had
in it only the same ingredients of error and misdecision, as the
English jury: but it had them in stronger dose,[705] without the
counteracting authority of a judge, and without the benefit of a
procedure such as has now been obtained in England. The feelings of
the dikasts counted for more, and their reason for less: not merely
because of their greater numbers, which naturally heightened the
pitch of feeling in each individual, but also because the addresses
of orators or parties formed the prominent part of the procedure,
and the depositions of witnesses only a very subordinate part;
the dikast,[706] therefore, heard little of the naked facts, the
appropriate subjects for his reason,—but he was abundantly supplied
with the plausible falsehoods, calumnies, irrelevant statements
and suggestions, etc., of the parties, and that too in a manner
skilfully adapted to his temper. To keep the facts of the case
before the jury, apart from the falsehood and coloring of parties,
is the most useful function of the modern judge, whose influence
is also considerable as a restraint upon the pleader. The helps to
the reason of the dikast were thus materially diminished, while the
action upon his feelings, of anger as well as of compassion, was
sharpened, as compared with the modern juror.[707] We see, in the
remaining productions of the Attic orators, how much there is of
plausible deception, departure from the true issue, and appeals to
sympathies, antipathies, and prejudices of every kind; addressed to
the dikasteries.[708] Of course, such artifices were resorted to by
opposite speakers in each particular trial, nor have we any means of
knowing to what extent they actually perverted the judgment of the
hearers.[709] Probably, the frequent habit of sitting in dikastery,
gave them a penetration in detecting sophistry not often possessed by
non-professional citizens: nevertheless, it cannot be doubted that,
in a considerable proportion of cases, success depended less upon the
intrinsic merits of a case, than upon apparent airs of innocence and
truth-telling, dexterity of statement, and good general character, in
the parties, their witnesses, and the friends who addressed the court
on their behalf. The accusatory speeches in Attic oratory, wherein
punishment is invoked upon an alleged delinquent, are expressed
with a bitterness which is now banished from English criminal
judicature, though it was common in the state trials of two centuries
ago. Against them may be set the impassioned and emphatic appeals
made by defendants and their friends to the commiseration of the
dikasts; appeals the more often successful, because they came last,
immediately before decision was pronounced. This is true of Rome as
well as of Athens.[710]
[704] Mr. Jardine (Criminal Trials, Introduct. p. 8) observes,
that the “proceedings against persons accused of state offences,
in the earlier periods of our history, do not deserve the name of
trials: they were a mere mockery of justice,” etc.
Respecting what English juries have been, it is curious to peruse
the following remarks of Mr. Daines Barrington, Observations on
the Statutes, p. 409. In remarking on a statute of Henry the
Seventh, A. D. 1494, he says:
“The twenty-first chapter recites: That perjury is much and
customarily used within the city of London, among such persons as
passen and been impannelled in issue, joined between party and
party.’
“This offence hath been before this statute complained of in
preambles to several laws, being always the perjury of a _juror_,
who finds a verdict contrary to his oath, and not that which we
hear too much of at present, in the witnesses produced at a trial.
“In the Dance of Death, written originally in French, by
Macharel, and translated by John Lydgate in this reign, with
some additions, to adapt it to English characters,—a juryman is
mentioned, who had often been bribed for giving a false verdict,
which shows the offence to have been very common. The sheriff,
who summoned the jury, was likewise greatly accessory to this
crime, by summoning those who were most partial and prejudiced.
Carew, in his account of Cornwall, informs us that it was a
common article in an attorney’s bill, to charge _pro amicitiâ
vicecomitis_.
“It is likewise remarkable, that partiality and perjury in jurors
of the city of London is more particularly complained of than
in other parts of England, by the preamble of this and other
statutes. Stow informs us that in 1468, many jurors of this city
were punished by having papers fixed on their heads, stating
their offence of having been tampered with by the parties to the
suit. He likewise complains that this crying offence continued in
the time of Queen Elizabeth, when he wrote his account of London:
and Fuller, in his English Worthies, mentions it as a proverbial
saying, that London juries hang half and save half. Grafton also,
in his Chronicle, informs us that the Chancellor of the diocese
of London was indicted for a murder, and that the bishop wrote a
letter to Cardinal Wolsey, in behalf of his officer, to stop the
prosecution, ‘because London juries were so prejudiced, that they
would find Abel guilty for the murder of Cain.’
“The punishment for a false verdict by the petty jury is by writ
of attaint: and the statute directs, that half of the grand-jury,
when the trial is _per medietatem linguæ_, shall be strangers,
not Londoners.
‘And there’s no London jury, but are led
In evidence as far by common fame,
As they are by present deposition.’
(Ben Jonson’s Magnetic Lady, Act. iii, Sc. 3.)
“It appears by 15 Henry the Sixth, c. 5,—which likewise recites
the great increase of perjury in jurors, and in the strongest
terms,—that in every attaint there were thirteen defendants:
the twelve jurors who gave the verdict, and the plaintiff or
defendant who had obtained it, who therefore was supposed to have
used corrupt means to procure it. For this reason, if the verdict
was given in favor of the crown, no attaint could be brought,
because the king could not be joined as a defendant with the jury
who were prosecuted.”
Compare also the same work, pp. 394-457, and Mr. Amos’s Notes on
Fortescue de Laudib. Leg. Angliæ, c. 27.
[705] In France, jury-trial was only introduced for the first
time by the Constituent Assembly in 1790, and then only for
criminal procedure: I transcribe the following remarks on
the working of it from the instructive article in Merlin’s
“Répertoire de Jurisprudence,” article _Juré_. Though written in
a spirit very favorable to the jury, it proclaims the reflections
of an observing lawyer on the temper and competence of the
jurymen whom he had seen in action, and on their disposition to
pronounce the verdict according to the _feeling_ which the case
before them inspired.
“Pourquoi faut il qu’une institution qui rassure les citoyens
contre l’endurcissement et la prévention si funeste à
l’innocence, que peut produire l’habitude de juger les crimes
... qu’une institution qui donne pour juges à un accusé, des
citoyens indépendans de toute espèce d’influence, ses pairs, ses
égaux ... pourquoi faut il que cette institution, dont les formes
sont simples, touchantes, patriarchales, dont la théorie flatte
et entraine l’esprit par une séduction irrésistible, ait été si
souvent méconnue, trompée par l’ignorance et la pusillanimité,
prostitutée peut-être par une vile et coupable corruption?
“Rendons pourtant justice aux erreurs, même à la prévarication,
des jurés: ils ont trop de fois acquitté les coupables, mais
il n’a pas encore été prouvé qu’ils eussent jamais fait couler
une goutte de sang innocent: et si l’on pouvoit supposer qu’ils
eussent vu quelquefois le crime là où il n’y en avoit qu’une
apparence trompeuse et fausse, ce ne seroit pas leur conscience
qu’il faudroit accuser: ce seroit la fatalité malheureuse des
circonstances qui auroient accompagné l’accusation, et qui auroit
trompé de même les juges les plus pénétrans et les plus exercés à
rechercher la vérité et à la démêler du mensonge.
“Mais les reproches qu’ont souvent mérités les jurés, c’est
d’avoir cédé à _une fausse commisération_, ou à l’intérêt
qu’étoient parvenus à leur inspirer les familles d’accusés qui
avaient un rang dans la société: c’est souvent d’être sortis
de leurs attributions, qui se bornent à apprécier les faits,
et les juger d’une manière différente de la loi. _J’ai vu cent
exemples de ces usurpations de pouvoir et de ce despotisme des
jurés._ Trop souvent ils out voulu voir une action innocente,
là où la loi avoit dit qu’il y avait un crime, et alors ils
n’ont pas craint de se jouer de la vérité pour tromper et éluder
la loi.” ... “Serat-il possible d’améliorer l’institution des
jurés, et d’en prévenir les écarts souvent trop scandaleux?
Gardons nous d’en douter. Que l’on commence par composer le
jury de propriétaires intéressés à punir le crime pour le
rendre plus rare: que surtout on en éloigne les artisans, les
petits cultivateurs, hommes chez qui sans doute la probité est
heureusement fort commune, mais dont l’esprit est peu exercé,
et qui, accoutumés aux déférences, aux égards, cèdent toujours
à l’opinion de ceux de leurs collègues dont le rang est plus
distingué: ou qui, familiarisés seulement avec les idées
relatives à leur profession, n’ont jamais eu, dans tout le reste,
que des idées d’emprunt ou d’inspiration. On sait qu’aujourdhui
ce sont ces hommes qui dans presque toute la France forment
toujours la majorité des jurés: mettez au milieu d’eux un homme
d’un état plus élevé, d’un esprit délié, d’une élocution facile,
il entrainera ses collègues, il décidera la délibération: et
si cet homme a le jugement faux ou le cœur corrompu, cette
délibération sera nécessairement mauvaise.
“Mais pourra-t-on parvenir à vaincre l’insouciance des
propriétaires riches et éclairés, à leur faire abandonner leurs
affaires, leurs familles, leurs habitudes, pour les entrainer
dans les villes, et leur y faire remplir des fonctions qui
tourmentent quelquefois la probité, et donnent des inquiétudes
d’autant plus vives que la conscience est plus délicate? Pourquoi
non? Pourquoi les mêmes classes de citoyens qui dans les huit
ou dix premiers mois de 1792, se portaient avec tant de zèle à
l’exercice de ces fonctions, les fuiroient elles aujourdhui?
surtout si, pour les y rappeler, la loi fait mouvoir les deux
grands ressorts qui sont dans sa main, si elle s’engage à
récompenser l’exactitude, et à punir la négligence?” (Merlin,
Répertoire de Jurisprudence, art. Jurés, p. 97.)
In these passages, it deserves notice, that what is particularly
remarked about juries, both English and French, is, their
reluctance to convict accused persons brought before them. Now
the character of the Athenian dikasts, as described by Mr.
Mitford and by many other authors, is the precise reverse of
this: an extreme severity and cruelty, and a disposition to
convict all accused persons brought before them, upon little or
no evidence,—especially rich accused persons. I venture to affirm
that, to ascribe to them such a temper generally, is not less
improbable in itself, than unsupported by any good evidence.
In the speeches remaining to us from defendants, we do indeed
find complaints made of the severity of the dikasteries: but in
those speeches which come from accusers, there are abundance of
complaints to the contrary,—of over-indulgence on the part of
the dikasteries, and consequent impunity of criminals. Nor does
Aristophanês,—by whom most modern authors are guided, even when
they do not quote him,—when fairly studied, bear out the temper
ascribed by Mr. Mitford to the dikasts; even if we admitted
Aristophanês to be a faithful and trustworthy witness, which no
man who knows his picture of Sokratês will be disposed to do.
Aristophanês takes hold of every quality which will raise a laugh
against the dikasts, and his portrait of them as wasps was well
calculated for this purpose,—to describe them as boiling over
with acrimony, irritation, impatience, to find some one whom
they could convict and punish. But even he, when he comes to
describe these dikasts in action, represents them as obeying the
appeals to their pity, as well as those to their anger,—as being
yielding and impressionable when their feelings are approached on
either side, and unable, when they hear the exculpatory appeal
of the accused, to maintain the anger which had been raised by
the speech of the accuser. (See Aristophan. Vesp. 574, 713, 727,
794.) Moreover, if from the Vespæ we turn to the Nubes, where
the poet attacks the sophists and not the dikasts, we are there
told that the sophists could arm any man with fallacies and
subterfuges which would enable him to procure acquittal from the
dikasts, whatever might be the crime committed.
I believe that this open-mindedness, and impressibility of
the feelings on all sides, by art, eloquence, prayers, tears,
invectives, etc., is the true character of the Athenian dikasts.
And I also believe that they were, as a general rule, more
open to commiseration than to any other feeling,—like what is
above said respecting the French jurymen: εὐκίνητος πρὸς ὀργὴν
(ὁ Ἀθηναίων δῆμος), εὐμετάθετος πρὸς ἔλεον,—this expression of
Plutarch about the Athenian demos is no less true about the
dikasts: compare also the description given by Pliny (H. N. xxxv,
10) of the memorable picture of the Athenian demos by the painter
Parrhasius.
[706] That the difference between the dikast and the juryman,
in this respect, is only one of degree, I need hardly remark.
M. Merlin observes, “Je ne pense pas, comme bien des gens, que
pour être propre aux fonctions de juré, il suffise d’avoir _une
intelligence ordinaire et de la probité_. Si l’accusé paroissoit
seul aux débats avec les témoins, il ne faudroit sans doute que
du bon sens pour reconnoitre la vérité dans des déclarations
faites avec simplicité et dégagées de tout raisonnement: mais il
y paroit assisté presque toujours d’un ou de plusieurs défenseurs
qui par des interpellations captieuses, embarrassent ou égarent
les témoins; et par une discussion subtile, souvent sophistique,
quelquefois éloquente, enveloppent la vérité des nuages, et
rendent l’évidence même problématique. Certes, il faut plus que
de bonnes intentions, il faut plus que du bon sens, pour ne pas
se laisser entrainer à ces fausses lueurs, pour se garantir des
écarts de la sensibilité, et pour se maintenir immuablement
dans la ligne du vrai, au milieu de ces impulsions données
en même temps à l’esprit et au cœur.” (Merlin, Répertoire de
Jurisprudence, art. Jurés, p. 98).
At Athens, there were no professional advocates: the accuser
and the accused—or the plaintiff and defendant, if the cause
was civil—each appeared in person with their witnesses, or
sometimes with depositions which the witnesses had sworn to
before the archon: each might come with a speech prepared by
Antipho (Thucyd. viii, 68) or some other rhetor: each might have
one or more ξυνηγόρους to speak on his behalf after himself,
but seemingly only out of the space of time allotted to him by
the clepsydra. In civil causes, the defendant must have been
perfectly acquainted with the plaintiff’s case, since, besides
the anakrisis, or preliminary examination before the archon, the
cause had been for the most part already before an arbitrator.
In a criminal case, the accused party had only the anakrisis to
guide him, as to the matter of which he was to be accused: but
it appears from the prepared speeches of accused parties which
we now possess, that this anakrisis must have been sufficiently
copious to give him a good idea of that which he had to rebut.
The accuser was condemned to a fine of one thousand drachms, if
he did not obtain on the verdict one-fifth of the votes of the
dikasts engaged.
Antipho not only composed speeches for pleaders before the
dikastery, but also gave them valuable advice generally as to the
manner of conducting their case, etc., though he did not himself
speak before the dikasts: so also Ktesiklês the λογόγραφος
(Demosthenês cont. Theokrin. c. 5) acted as general adviser, or
attorney.
[707] Aristotle, in the first and second chapters of his Treatise
de Rhetoricâ, complains that the teachers and writers on rhetoric
who preceded him, treated almost entirely of the different
means of working on the feelings of the dikasts, and of matters
“extraneous to the real question which the dikasts ought to try.”
(περὶ τῶν ἔξω τοῦ πράγματος τὰ πλεῖστα πραγματεύονται· διαβολὴ
γὰρ καὶ ἔλεος καὶ ὀργὴ, οὐ περὶ τοῦ πράγματός ἐστιν, ἀλλὰ πρὸς
τὸν δικαστὴν, etc., i, 1, 1: compare, i, 2, 3, and iii, 1, 2.)
This is sufficient to show how prominent such appeals to the
feelings of the dikasts were, in actual fact and practice, even
if we did not know it from the perusal of the orations themselves.
Respecting the habit of accused persons to bring their wives and
children before the dikasts as suppliants for them, to obtain
mercy or acquittal, see Aristophan. Vesp. 567-976; Andokidês de
Mysteriis (ad finem), and Lysias, Orat. iv, de Vulnere (ad finem).
[708] To a person accustomed to the judicature of modern Europe,
conducted throughout all its stages by the instrumentality
of professional men,—judges, advocates, attorneys, etc.,—and
viewed by the general public as a matter in which no private
citizen either could act or ought to act for himself,—nothing
is more remarkable in reading the Attic judicial orations, to a
certain extent also the Roman, than the entire absence of this
professional feeling, and the exhibition of justice both invoked
and administered by private citizens exclusively. The nearest
analogy to this, which modern justice presents, is to be found in
the courts of Requests and other courts for trying causes limited
to small sums of property,—too small to be worth the notice of
judges and lawyers.
These courts, in spite of their direct and important bearing on
the welfare and security of the poorer classes, have received
little elucidation. The History of the Birmingham Court of
Requests, by Mr. William Hutton,—lately republished by Messrs.
Chambers,—forms an exception to this remark, and is full of
instruction in respect to the habits, the conduct, and the
sufferings of poor persons. It furnishes, besides, the closest
approach that I know to the feelings of Athenian dikasts and
pleaders, though of course with many important differences.
Mr. Hutton was for many years unremitting in his attendance
as a commissioner, and took warm interest in the honorable
working of the court. His remarks upon the position, the duties,
and the difficulties of the commissioners, illustrated by
numerous cases given in detail, are extremely interesting, and
represent thoughts which must have often suggested themselves to
intelligent dikasts at Athens.
“Law and equity (he says, p. 34) often vary. If the commissioners
cannot decide _against_ law, they can decide _without_ it. Their
oath binds them to proceed according to _good conscience_ (περὶ
ὁτοῦ οὔκ εἰσι νόμοι, γνώμῃ τῇ δικαιοτάτῃ, was the oath of the
Athenian dikast). A man only needs information to be able to
decide.”
A few words from p. 36, about the sources of misjudgment.
“Misinformation is another source of evil: both parties equally
treat the commissioners with deceit. The only people who can
throw light upon the subject will not.
“It is difficult not to be won by the first speaker, if he
carries the air of mildness and is master of his tale; or not
to be biased in favor of infirmity or infancy. Those who cannot
assist themselves, we are much inclined to assist.
“Nothing dissolves like tears. Though they arise from weakness,
they are powerful advocates, which instantly disarm, particularly
those which the afflicted wish to hide. They come from the heart
and will reach it, if the judge has a heart to reach. Distress
and pity are inseparable.
“Perhaps there never was a judge, from seventeen to seventy,
who could look with indifference upon beauty in distress; if he
could, he was unfit to be a judge. He should be a stranger to
decision, who is a stranger to compassion. All these matters
influence the man, and warp his judgment.”
This is a description, given by a perfectly honest and
unprofessional judge, of his own feelings when on the bench.
It will be found illustrated by frequent passages in the Attic
pleaders, where they address themselves to the feelings here
described in the bosom of the dikasts.
[709] Demosthenês (cont. Phormio. p. 913, c. 2) emphatically
remarks, how much more cautious witnesses were of giving false
testimony before the numerous dikastery, than before the
arbitrator.
[710] Asconius gives an account of the begging off and
supplication to the judices at Rome, when sentence was about to
be pronounced upon Scaurus, whom Cicero defended (ad Ciceron.
Orat. pro Scauro, p. 28, ed. Orelli): “Laudaverunt Scaurum
consulares novem—Horum magna pars per tabellas laudaverunt, qui
aberant: inter quos Pompeius quoque. Unus prætereà adolescens
laudavit, frater ejus, Faustus Cornelius, Syllæ filius. Is in
laudatione multa humiliter et cum lacrimis locutus non minus
audientes permovit, quam Scaurus ipse permoverat. Ad genua
judicum, cum sententiæ ferrentur, bifariam se diviserunt qui pro
eo rogabant: ab uno latere Scaurus ipse et M. Glabrio, sororis
filius, et Paulus, et P. Lentulus, et L. Æmilius Buca, et C.
Memmius, supplicaverunt: ex alterâ parte Sylla Faustus, frater
Scauri, et T. Annius Milo, et T. Peducæus, et C. Cato, et M.
Octavius Lænas.”
Compare also Cicero, Brutus, c. 23, about the defence of Sergius
Galba; Quintilian, I. O. ii, 15.
As an organ for judicial purposes, the Athenian dikasteries were
thus a simple and plenary manifestation of jury-trial, with its
inherent excellences and defects both brought out in exaggerated
relief: they insured a decision at once uncorrupt, public-minded, and
imposing,—together with the best security which the case admitted
against illegal violences on the part of the rich and great.[711]
Their extreme publicity, as well as their simple and oral procedure,
divested of that verbal and ceremonial technicality which marked
the law of Rome, even at its outset, was no small benefit: and
as the verdicts of the dikasts, even when wrong, depended upon
causes of misjudgment common to them with the general body of the
citizens, so they never appeared to pronounce unjustly, nor lost
the confidence of their fellow-citizens generally. But whatever
may have been their defects as judicial instruments, as a stimulus
both to thought and speech, their efficacy was unparalleled, in
the circumstances of Athenian society. Doubtless, they would not
have produced the same effect if established at Thebes or Argos:
the susceptibilities of the Athenian mind, as well as the previous
practice and expansive tendencies of democratical citizenship, were
also essential conditions,—and that genuine taste of sitting in
judgment, and hearing both sides fairly, which, however Aristophanês
may caricature and deride it, was alike honorable and useful to
the people. The first establishment of the dikasteries is nearly
coincident with the great improvement of Attic tragedy in passing
from Æschylus to Sophoklês. The same development of the national
genius, now preparing splendid manifestations both in tragic and
comic poetry, was called with redoubled force into the path of
oratory, by the new judicial system. A certain power of speech
now became necessary, not merely for those who intended to take
a prominent part in politics, but also for private citizens to
vindicate their rights, or repel accusations in a court of justice.
It was an accomplishment of the greatest practical utility, even
apart from ambitious purposes; hardly less so than the use of arms or
the practice of the gymnasium. Accordingly, the teachers of grammar
and rhetoric, and the composers of written speeches to be delivered
by others, now began to multiply and to acquire an unprecedented
importance,—as well at Athens as under the contemporary democracy
of Syracuse,[712] in which, also, some form of popular judicature
was established. Style and speech began to be reduced to a system,
and so communicated: not always happily, for several of the early
rhetors[713] had adopted an artificial, ornate, and conceited manner,
from which Attic good taste afterwards liberated itself,—but the very
character of a teacher of rhetoric as an art,—a man giving precepts
and putting himself forward in show-lectures as a model for others,
is a feature first belonging to the Periklean age, and indicates
a new demand in the minds of the citizens. We begin to hear, in
the generation now growing up, of the rhetor and the sophist, as
persons of influence and celebrity. These two names denoted persons
of similar moral and intellectual endowments, or often indeed the
same person, considered in different points of view;[714] either
as professing to improve the moral character, or as communicating
power and facility of expression, or as suggesting premises for
persuasion, illustrations on the common-places of morals and
politics, argumentative abundance on matters of ordinary experience,
dialectical subtlety in confuting an opponent, etc.[715] Antipho
of the deme Rhamnus in Attica, Thrasymachus of Chalkêdon, Tisias of
Syracuse, Gorgias of Leontini, Protagoras of Abdêra, Prodikus of
Keôs, Theodôrus of Byzantium, Hippias of Elis, Zeno of Elea, were
among the first who distinguished themselves in these departments
of teaching. Antipho was the author of the earliest composed speech
really spoken in a dikastery, and preserved down to the later
critics.[716] These men were mostly not citizens of Athens, though
many of them belonged to towns comprehended in the Athenian empire,
at a time when important judicial causes belonging to these towns
were often carried up to be tried at Athens,—while all of them looked
to that city as a central point of action and distinction. The term
_sophist_, which Herodotus[717] applies with sincere respect to men
of distinguished wisdom, such as Solon, Anacharsis, Pythagoras,
etc., now came to be applied to these teachers of virtue, rhetoric,
conversation, and disputation; many of whom professed acquaintance
with the whole circle of human science, physical as well as moral
(then narrow enough), so far as was necessary to talk about any
portion of it plausibly and effectively, and to answer any question
which might be proposed to them. Though these men passed from one
Grecian town to another, partly in the capacity of envoys from their
fellow-citizens, partly as exhibiting their talents to numerous
hearers, with much renown and large gain,[718]—they appeared to have
been viewed with jealousy and dislike by a large portion of the
public:[719] for at a time when every citizen pleaded his own cause
before the dikastery, they imparted, to those who were rich enough
to purchase it, a peculiar skill in the common weapons, which made
them seem like fencing-masters, or professional swordsmen, amidst a
society of untrained duellists.[720] Moreover, Sokratês,—himself a
product of the same age, and a disputant on the same subjects,—and
bearing the same name of a _sophist_,[721] but despising political
and judicial practice, and looking to the production of intellectual
stimulus and moral impressions upon his hearers,—Sokratês carried on
throughout his life a constant polemical warfare against the sophists
and rhetors, in that negative vein in which he was unrivalled. And
as the works of these latter have not remained, it is chiefly from
the observations of their opponents that we know them; so that they
are in a situation such as that in which Sokratês himself would have
been, if we had been compelled to judge of him only from the Clouds
of Aristophanês, or from those unfavorable impressions respecting
his character, which we know, even from the Apologies of Plato and
Xenophon, to have been generally prevalent at Athens. This is not
the opportunity, however, for trying to distinguish the good from
the evil in the working of the sophists and rhetors: at present, it
is enough that they were the natural product of the age,—supplying
those wants, and answering to that stimulus, which arose partly
from the deliberations of the ekklesia, but still more from the
contentions before the dikastery,—in which latter a far greater
number of citizens took active part, with or without their own
consent. The public and frequent dikasteries constituted by Periklês,
opened to the Athenian mind precisely that career of improvement
which was best suited to its natural aptitude: they were essential
to the development of that demand out of which grew not only Grecian
oratory, but also, as secondary products, the speculative moral
and political philosophy, and the didactic analysis of rhetoric and
grammar, which long survived after Grecian creative genius had passed
away.[722] And it was one of the first measures of the oligarchy of
Thirty, to forbid, by an express law, any teaching of the art of
speaking. Aristophanês derides the Athenians for their love of talk
and controversy, as if it had enfeebled their military energy: but
in his time, most undoubtedly, that reproach was not true; nor did
it become true, even in part, until the crushing misfortunes which
marked the close of the Peloponnesian war. During the course of that
war, restless and energetic action was the characteristic of Athens,
even in a greater degree than oratory or political discussion, though
before the time of Demosthenês a material alteration had taken place.
[711] Plato, in his Treatise de Legibus (vi, p. 768) adopts all
the distinguishing principles of the Athenian dikasteries. He
particularly insists, that the citizen, who does not take his
share in the exercise of this function, conceives himself to have
no concern or interest in the commonwealth,—τὸ παράπαν τῆς πόλεως
οὐ μέτοχος εἶναι.
[712] Aristot. ap. Cicero. Brut. c. 12. “Itaque cum sublatis
in Siciliâ tyrannis res privatæ longo intervallo judiciis
repeterentur, tum primum quod esset acuta ea gens et
controversa naturâ, artem et præcepta Siculos Coracem et Tisiam
conscripsisse,” etc. Compare Diodor. xi, 87; Pausan. vi, 17, 8.
[713] Especially Gorgias: see Aristotel. Rhetor. iii, 1, 26;
Timæus, Fr.; Dionys. Halicarn. De Lysiâ Judicium, c. 3; also
Foss, Dissertatio de Gorgiâ Leontino, p. 20 (Halle, 1828); and
Westermann, Geschichte der Beredsamkeit in Griechenland und Rom.,
sects. 30, 31.
[714] Plato (Gorgias, c. 20-75; Protagoras, c. 9). Lysias is
sometimes designated as a sophist (Demosthen. cont. Neær. c. 7,
p. 1351; Athenæ. xiii. p. 592). There is no sufficient reason for
supposing with Taylor (Vit. Lysiæ, p. 56, ed. Dobson) that there
were two persons named Lysias, and that the person here named is
a different man from the author of the speeches which remain to
us: see Mr. Fynes Clinton, Fast. H. p. 360. Appendix, c. 20.
[715] See the first book of Aristotle’s Rhetoric—alluded to in a
former note—for his remarks on the technical teachers of rhetoric
before his time. He remarks—and Plato remarked before him (i,
1 and 2)—that their teaching was for the most part thoroughly
narrow and practical, bearing exclusively on what was required
for the practice of the dikastery (περὶ τοῦ δικάζεσθαι πάντες
πειρῶνται τεχνολογεῖν): see also a remarkable passage in his
Treatise de Sophisticis Elenchis, c. 32, ad finem. And though he
himself lays down a far more profound and comprehensive theory of
rhetoric, and all matters appertaining to it,—in a treatise which
has rarely been surpassed in power of philosophical analysis,—yet
when he is recommending his speculations to notice, he appeals
to the great practical value of rhetorical teaching, as enabling
a man to “help himself,” and fight his own battles, in case of
need—Ἄτοπον εἰ τῷ σώματι μὲν αἰσχρὸν μὴ δύνασθαι βοηθεῖν ἑαυτῷ,
λόγῳ δὲ οὐκ αἰσχρόν (i, 1, 3: compare iii, 1, 2; Plato Gorgias,
c, 41-55; Protagoras, c. 9; Phædrus, c. 43-50; Euthydem. c. 1-31
and Xenophon, Memorab. iii, 12, 2, 3).
See also the character of Proxenus in the Anabasis of Xenophon,
ii, 6, 16; Plutarch, Vit. x, Orator. p. 307; Aristoph. Nubes,
1108; Xenophon, Memorab. i, 2, 48; Plato, Alkibiadês, i, c. 31,
p. 119; and a striking passage in Plutarch’s Life of Cato the
elder, c. 1.
[716] Plutarch, Vit. x, Orator. p. 832; Quintilian, iii, 1, 10.
Compare Van Spaan, or Ruhnken, Dissertatio de Antiphonte Oratore
Attico, pp. 8, 9, prefixed to Dobson’s edition of Antipho and
Andokidês. Antipho is said to have been the teacher of the
historian Thucydidês. The statement of Plutarch, that the father
of Antipho was also a sophist, can hardly be true.
[717] Herodot. i, 29; iv, 95.
[718] Plato (Hippias Major, c. 1, 2; Menon, p. 95; and Gorgias,
c. 1, with Stallbaum’s note); Diodor. xii, 53; Pausan. vi, 17, 8.
[719] Xenophon, Memorab. i, 2, 31. To teach or learn the art
of speech was the common reproach made by the vulgar against
philosophers and lettered men,—τὸ κοινῇ τοῖς φιλοσόφοις ὑπὸ τῶν
πολλῶν ἐπιτιμώμενον (Xenoph. Memor. i, 2, 31). Compare Æschinês
cont. Timar. about Demosthenês, c. 25, 27, which illustrates the
curious fragment of Sophoklês, 865. Οἱ γὰρ ~γύνανδροι~ καὶ λέγειν
~ἠσκηκότες~.
[720] Such is probably the meaning of that remarkable passage
in which Thucydidês describes the Athenian rhetor, Antipho,
(viii, 68): Ἀντιφῶν, ἀνὴρ Ἀθηναίων ἀρετῇ τε οὐδενὸς ὕστερος, καὶ
κράτιστος ἐνθυμηθῆναι γενόμενος καὶ ἃ ἂν γνοίη εἰπεῖν· καὶ ἐς
μὲν δῆμον οὐ παριὼν οὐδ’ ἐς ἄλλον ἀγῶνα ἑκούσιος οὐδένα, ἀλλ’
~ὑπόπτως τῷ πλήθει διὰ δόξαν δεινότητος διακείμενος~, τοὺς μέντοι
ἀγωνιζομένους καὶ ἐν δικαστηρίῳ καὶ ἐν δήμῳ, πλεῖστα εἷς ἀνὴρ,
ὅστις ξυμβουλεύσαιτό τι, δυνάμενος ὠφελεῖν. “Inde illa circa
occultandam eloquentiam simulatio,” observes Quintilian, Inst.
Or. iv, 1, 8.
Compare Plato (Protagoras, c. 8; Phædrus, c. 86), Isokratês
cont. Sophistas, Or. xiii, p. 295, where he complains of the
teachers,—οἵτινες ὑπέσχοντο, δικάζεσθαι διδάσκειν, ἐκλεξάμενοι τὸ
δυσχερέστατον τῶν ὀνομάτων, ὃ τῶν φθονούντων ἔργον εἴη λέγειν,
ἀλλ’ οὐ τῶν προεστώτων τῆς τοιαύτης παιδεύσεως, Demosthen. De
Fals. Legat, c. 70, 71, pp. 417-420; and Æschin. cont. Ktesiphon.
c. 9, p. 371,—κακοῦργον σοφιστὴν, οἰόμενον ῥήμασι τοὺς νόμους
ἀναιρήσειν.
[721] Æschinês cont. Timarch. c. 34, p. 74. Ὑμεῖς μὲν, ὦ
Ἀθηναῖοι, ~Σωκράτην μὲν τὸν σοφιστὴν~ ἀπεκτείνατε, ὅτι Κριτίαν
ἐφάνη πεπαιδευκὼς, ἕνα τῶν τριάκοντα τῶν τὸν δῆμον καταλυσάντων.
Among the sophists whom Isokratês severely criticizes, he
evidently seems to include Plato, as may be seen by the contrast
between δόξα and ἐπιστήμη, which he particularly notes, and
which is so conspicuously set forth in the Platonic writings
(Isokratês cont. Sophistas, Or. xiii, p. 293; also p. 295). We
know also that Lysias called both Plato and Æschinês the disciple
of Sokratês, by the name of _sophists_ (Aristeidês, Orat.
Platonic. xlvi, Ὑπὲρ τῶν τεττάρων, p. 407, vol. ii, ed. Dindorf).
Aristeidês remarks justly that the name sophist was a general
name, including all the philosophers, teachers, and lettered men.
The general name, _sophists_, in fact, included good, bad, and
indifferent; like “the philosophers, the political economists,
the metaphysicians,” etc. I shall take a future opportunity of
examining the indiscriminate censures against them as a class,
which most modern writers have copied implicitly from the
polemics of ancient times.
[722] Xenoph. Memor. i, 2, 31. λόγων τέχνην μὴ διδάσκειν.
Xenophon ascribes the passing of this law to a personal hatred
of Kritias against Sokratês, and connects it with an anecdote
exceedingly puerile, when considered as the alleged cause of that
hatred, as well as of the consequent law. But it is evident that
the law had a far deeper meaning, and was aimed directly at one
of the prominent democratical habits.
The establishment of these paid dikasteries at Athens was thus one
of the most important and prolific events in all Grecian history.
The pay helped to furnish a maintenance for old citizens, past the
age of military service. Elderly men were the best persons for such
a service, and were preferred for judicial purposes both at Sparta,
and, as it seems, in heroic Greece: nevertheless, we need not suppose
that _all_ the dikasts were either old or poor, though a considerable
proportion of them were so, and though Aristophanês selects these
qualities as among the most suitable subjects for his ridicule.
Periklês has been often censured for this institution, as if he
had been the first to insure pay to dikasts who before served for
nothing, and had thus introduced poor citizens into courts previously
composed of citizens above poverty. But, in the first place, this
supposition is not correct in point of fact, inasmuch as there were
no such constant dikasteries previously acting without pay; next, if
it had been true, the habitual exclusion of the poor citizens would
have nullified the popular working of these bodies, and would have
prevented them from answering any longer to the reigning sentiment
at Athens. Nor could it be deemed unreasonable to assign a regular
pay to those who thus rendered regular service: it was, indeed,
an essential item in the whole scheme[723] and purpose; so that
the suppression of the pay of itself seems to have suspended the
dikasteries, while the oligarchy of Four Hundred was established,—and
it can only be discussed in that light. As the fact stands, we may
suppose that the six thousand heliasts who filled the dikasteries
were composed of the middling and poorer citizens indiscriminately:
though there was nothing to exclude the richer, if they chose to
serve.
[723] Thucyd. viii, 67. Compare a curious passage, even in
reference to the time of Demosthenês, in the speech of that
orator contra Bœotum de Nomine, c. 5. καὶ εἰ μισθὸς ἐπορίσθη τοῖς
δικαστηρίοις, εἰσῆγον ἂν με δῆλον ὅτι, etc.