Chapter XLVI (3)

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.