Chapter XLVI (2)

Both of them maintain, in my opinion erroneously, that the
nomothetæ are an institution of Solon. Demosthenês, indeed,
ascribes it to Solon (Schömann, p. 268): but this counts, in my
view, for nothing, when I see that all the laws which he cites
for governing the proceedings of the nomothetæ, bear unequivocal
evidence of a time much later. Schömann admits this to a certain
extent, and in reference to the style of these laws,—“Illorum
quidem fragmentorum, quæ in Timokrateâ extant, _recentiorem
Solonis ætate formam atque orationem apertum est_.” But it is not
merely the style which proves them to be of post-Solonian date:
it is the mention of post-Solonian institutions, such as the ten
prytanies into which the year was divided, the ten statues of
the eponymi,—all derived from the creation of the ten tribes by
Kleisthenês. On the careless employment of the name of Solon by
the orators, whenever they desire to make a strong impression on
the dikasts, I have already remarked.

As an additional security both to the public assembly and the nomothetæ against being entrapped into decisions contrary to existing law, another remarkable provision has yet to be mentioned,—a provision probably introduced by Periklês at the same time as the formalities of law-making by means of specially delegated nomothetæ. This was the Graphê Paranomôn,—indictment for informality or illegality,—which might be brought on certain grounds against the proposer of any law or any psephism, and rendered him liable to punishment by the dikastery. He was required, in bringing forward his new measure, to take care that it should not be in contradiction with any preëxisting law,—or if there were any such contradiction, to give formal notice of it, to propose the repeal of that which existed, and to write up publicly beforehand what his proposition was,—in order that there might never be two contradictory laws at the same time in operation, nor any illegal decree passed either by the senate or by the public assembly. If he neglected this precaution, he was liable to prosecution under the graphê paranomôn, which any Athenian citizen might bring against him before the dikastery, through the intervention and under the presidency of the thesmothetæ.

Judging from the title of this indictment, it was originally confined to the special ground of formal contradiction between the new and the old. But it had a natural tendency to extend itself: the citizen accusing would strengthen his case by showing that the measure which he attacked contradicted not merely the letter, but the spirit and purpose of existing laws,—and he would proceed from hence to denounce it as generally mischievous and disgraceful to the state. In this unmeasured latitude, we find the graphê paranomôn at the time of Demosthenês: the mover of a new law or psephism, even after it had been regularly discussed and passed, was liable to be indicted, and had to defend himself not only against alleged informalities in his procedure, but also against alleged mischiefs in the substance of his measure. If found guilty by the dikastery, the punishment inflicted upon him by them was not fixed, but variable according to circumstances; for the indictment belonged to that class wherein, after the verdict of guilty, first a given amount of punishment was proposed by the accuser, next, another and lighter amount was named by the accused party against himself,—the dikastery being bound to make their option between one and the other, without admitting any third modification,—so that it was the interest even of the accused party to name against himself a measure of punishment sufficient to satisfy the sentiment of the dikasts, in order that they might not prefer the more severe proposition of the accuser. At the same time, the accuser himself, as in other public indictments, was fined in the sum of one thousand drachms, unless the verdict of guilty obtained at least one-fifth of the suffrages of the dikastery. The personal responsibility of the mover, however, continued only one year after the introduction of his new law: if the accusation was brought at a greater distance of time than one year, the accuser could invoke no punishment against the mover, and the sentence of the dikasts neither absolved nor condemned anything but the law. Their condemnation of the law, with or without the author, amounted _ipso facto_ to a repeal of it.

Such indictment against the author of a law or of a decree, might be preferred either at some stage prior to its final enactment,—as after its acceptance simply by the senate, if it was a decree, or after its approval by the public assembly, and prior to its going before the nomothetæ, if it was a law,—or after it had reached full completion by the verdict of the nomothetæ. In the former case, the indictment stayed its farther progress until sentence had been pronounced by the dikasts.

This regulation is framed in a thoroughly conservative spirit, to guard the existing laws against being wholly or partially nullified by a new proposition. As, in the procedure of the nomothetæ, whenever any proposition was made for distinctly repealing any existing law, it was thought unsafe to intrust the defence of the law so assailed to the chance of some orator gratuitously undertaking it, and paid advocates were appointed for the purpose; so also, when any citizen made a new positive proposition, sufficient security was not supposed to be afforded by the chance of opponents rising up at the time; and a farther guarantee was provided in the personal responsibility of the mover. That the latter, before he proposed a new decree or a new law, should take care that there was nothing in it inconsistent with existing laws,—or, if there were, that he should first formally bring forward a direct proposition for the repeal of such preëxistent law,—was in no way unreasonable: it imposed upon him an obligation such as he might perfectly well fulfil,—it served as a check upon the use of that right, of free speech and initiative in the public assembly, which belonged to every Athenian without exception,[690] and which was cherished by the democracy as much as it was condemned by oligarchical thinkers,—it was a security to the dikasts, who were called upon to apply the law to particular cases, against the perplexity of having conflicting laws quoted before them, and being obliged in their verdict to set aside either one or the other. In modern European governments, even the most free and constitutional, laws have been both made and applied either by select persons or select assemblies, under an organization so different as to put out of sight the idea of personal responsibility on the proposer of a new law. Moreover, even in such assemblies, private initiative has either not existed at all, or has been of comparatively little effect, in law-making; while in the application of laws when made, there has always been a permanent judicial body exercising an action of its own, more or less independent of the legislature, and generally interpreting away the text of contradictory laws so as to keep up a tolerably consistent course of forensic tradition. But at Athens, the fact that the proposer of a new decree, or of a new law, had induced the senate or the public assembly to pass it, was by no means supposed to cancel his personal responsibility, if the proposition was illegal: he had deceived the senate or the people, in deliberately keeping back from them a fact which he knew, or at least might and ought to have known.

[690] The privation of this right of public speech (παῤῥησία)
followed on the condemnation of any citizen to the punishment
called ἀτιμία, disfranchisement, entire or partial (Demosthen.
cont. Neær. p. 1352, c. 9; cont. Meidiam, p. 545, c. 27). Compare
for the oligarchical sentiment, Xenophon, Republ. Athen. i, 9.

But though a full justification may thus be urged on behalf of the graphê paranomôn, as originally conceived and intended, it will hardly apply to that indictment as applied afterwards in its plenary and abusive latitude. Thus Æschinês indicts Ktesiphon under it for having, under certain circumstances, proposed a crown to Demosthenês. He begins by showing that the proposition was illegal,—for this was the essential foundation of the indictment: he then goes on farther to demonstrate, in a splendid harangue, that Demosthenês was a vile man and a mischievous politician: accordingly, assuming the argument to be just, Ktesiphon had deceived the people in an aggravated way,—first, by proposing a reward under circumstances contrary to law; next, by proposing it in favor of an unworthy man. The first part of the argument only is of the essence of the graphê paranomôn: the second part is in the nature of an abuse growing out of it,—springing from that venom of personal and party enmity which is inseparable, in a greater or less degree, from free political action, and which manifested itself with virulence at Athens, though within the limits of legality. That this indictment, as one of the most direct vents for such enmity, was largely applied and abused at Athens, is certain; but though it probably deterred unpractised citizens from originating new propositions, it did not produce the same effect upon those orators who made politics a regular business, and who could therefore both calculate the temper of the people, and reckon upon support from a certain knot of friends. Aristophon, towards the close of his political life, made it a boast that he had been thus indicted and acquitted seventy-five times. Probably, the worst effect which it produced was that of encouraging the vein of personality and bitterness which pervades so large a proportion of Attic oratory, even in its most illustrious manifestations; turning deliberative into judicial eloquence, and interweaving the discussion of a law, or decree, along with a declamatory harangue against the character of its mover. We may at the same time add that the graphê paranomôn was often the most convenient way of getting a law or a psephism repealed, so that it was used even when the annual period had passed over, and when the mover was therefore out of danger,—the indictment being then brought only against the law, or decree, as in the case which forms the subject of the harangue of Demosthenês against Leptinês. If the speaker of this harangue obtained a verdict, he procured at once the repeal of the law, or decree, without proposing any new provision in its place; which he would be required to do,—if not peremptorily, at least by common usage,—if he had carried the law for repeal before the nomothetæ.

The dikasteries provided under the system of Periklês varied in number of members: we never hear of less than two hundred members,—most generally of five hundred,—and sometimes also of one thousand, fifteen hundred, two thousand members, on important trials.[691] Each man received pay from the treasurers, called Kolakretæ, after his day’s business was over, of three oboli, or half a drachm: at least this was the amount paid during the early part of the Peloponnesian war. M. Boëckh supposes that the original pay proposed by Periklês was one obolus, afterwards tripled by Kleon; but his opinion is open to much doubt. It was indispensable to propose a measure of pay sufficient to induce citizens to come, and come frequently, if not regularly: now one obolus seems to have proved afterwards an inadequate temptation even to the ekklesiasts, or citizens who attended the public assembly, who were less frequently wanted, and must have had easier sittings, than the dikasts: much less, therefore, would it be sufficient in the case of the latter. I incline to the belief that the pay originally awarded was three oboli:[692] the rather, as these new institutions seem to have nearly coincided in point of time with the transportation of the confederate treasure from Delos to Athens,—so that the exchequer would then appear abundantly provided. As to the number of dikasts actually present on each day of sitting, or the minimum number requisite to form a sitting, we are very imperfectly informed. Though each of the ten panels or divisions of dikasts included five hundred individuals, seldom probably did all of them attend; but it also seldom happened, probably, that all the ten divisions sat on the same day: there was therefore an opportunity of making up deficiencies in division Α, when its lot was called and when its dikasts did not appear in sufficient numbers, from those who belonged to division Β or Δ, besides the supplementary dikasts who were not comprised in any of the ten divisions: though on all these points we cannot go beyond conjecture. Certain it is, however, that the dikasteries were always numerous, and that none of the dikasts could know in what causes they would be employed, so that it was impossible to tamper with them beforehand.[693]

[691] See Meier, Attisch. Prozess, p. 139. Andokidês mentions a
trial under the indictment of γραφὴ παρανόμων, brought by his
father Leogoras against a senator named Speusippus, wherein six
thousand dikasts sat,—that is, the entire body of heliasts.
However, the loose speech so habitual with Andokidês, renders
this statement very uncertain (Andokidês de Mysteriis, p. 3, §
29).

See Matthiæ, De Judiciis Atheniensium, in his Miscellanea
Philologica, vol. i, p. 252. Matthiæ questions the reading of
that passage in Demosthenês (cont. Meideam, p. 585), wherein two
hundred dikasts are spoken of as sitting in judgment: he thinks
it ought to be πεντακοσίους instead of διακοσίους,—but this
alteration would be rash.

[692] See on this question, Boëckh, Public Econ. of Athens, ch.
xv, p. 233; K. F. Hermann, Griech. Staatsalt. § 134.

The proof which M. Boëckh brings to show, first, that the
original pay was one obolus,—next, that Kleon was the first to
introduce the triobolus,—is in both cases very inconclusive.

Certain passages from the Scholiast, stating that the pay of
the dikasts fluctuated (οὐκ ἕστηκεν—ἄλλοτε ἄλλως ἐδίδοτο) do
not so naturally indicate a rise from one obolus to three, as a
change backwards and forwards according to circumstances. Now
it seems that there were some occasions when the treasury was
so very poor that it was doubtful whether the dikasts could be
paid: see Lysias, cont. Epikrat. c. 1; cont. Nikomach. c. 22; and
Aristophan. Equit. 1370. The amount of pay may, therefore, have
been sometimes affected by this cause.

[693] There is a remarkable passage on this point in the treatise
of Xenophon, De Republic. Athen. iii, 6. He says:—

Φέρε δὴ, ἀλλὰ φησί τις χρῆναι δικάζειν μὲν, ἐλάττους δὲ δικάζειν.
Ἀνάγκῃ τοίνυν, ἐὰν μὲν πολλὰ (both Weiske and Schneider
substitute πολλὰ here in place of ὀλίγα, which latter makes
no sense) ποιῶνται δικαστήρια, ὀλίγοι ἐν ἑκάστῳ ἔσονται τῷ
δικαστηρίῳ· ὥστε καὶ διασκευάσασθαι ῥᾴδιον ἔσται πρὸς ὀλίγους
δικαστὰς, καὶ συνδεκάσαι (so Schneider and Matthiæ, in place of
συνδικάσαι) πολὺ ἧττον δικαίως δικάζειν.

That there was a good deal of bribery at Athens, where
individuals could be approached and dealt with, is very probable
(see Xenoph. de Repub. Ath. iii. 3): and we may well believe
that there were also particular occasions on which money was
given to the dikasts, some of whom were punished with death for
such corrupt receipt (Æschinês cont. Timarch. c. 17-22, pp.
12-15). But the passage above quoted from Xenophon, an unfriendly
witness, shows that the precautions taken to prevent corruption
of the dikasteries were well-devised and successful, though these
precautions might sometimes be eluded.

Such were the great constitutional innovations of Periklês and Ephialtês,—changes full of practical results,—the transformation as well as the complement of that democratical system which Kleisthenês had begun, and to which the tide of Athenian feeling had been gradually mounting up, during the preceding twenty years. The entire force of these changes is generally not perceived, because the popular dikasteries and the nomothetæ are so often represented as institutions of Solon, and as merely supplied with pay by Periklês. This erroneous supposition prevents all clear view of the growth of the Athenian democracy, by throwing back its last elaborations to the period of its early and imperfect start. To strip the magistrates of all their judicial power, except that of imposing a small fine, and the Areopagus of all its jurisdiction, except in cases of homicide,—providing popular, numerous, and salaried dikasts to decide all the judicial business at Athens, as well as to repeal and enact laws; this was the consummation of the Athenian democracy: no serious constitutional alteration—I except the temporary interruptions of the Four Hundred and the Thirty—was afterwards made until the days of Macedonian interference. As Periklês made it, so it remained in the days of Demosthenês,—though with a sensible change in the character, and abatement in the energies, of the people, rich as well as poor.

In appreciating the practical working of these numerous dikasteries 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.