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occasionally where I deemed it desirable, or where I might happen to differ in opinion from any writer whom I quoted. The object which I have proposed to myself has been, so to dress up matters of antiquity as to make them readable. Elaborate treatises, most valuable as storehouses of materials, can rarely be read except by the learned few. Nor can they be much improved in this respect by abridgment, which, while it destroys their utility as books of reference, renders them less intelligible as the materials are condensed. I have therefore endeavoured to handle topics of this kind in a more popular manner, as far as was consistent with the nature of the subject; so as to render them more intelligible to the ordinary reader, and to fix them better in the memory of all; keeping in view what Schömann says of himself in the preface to his "Antiquitates Juris Publici Græcorum". -"brevitatem ita secutus sum, ut non officeret perspicuitati; summas tantum rerum proposui, sed has ipsas quantum fieri potuit plane et dilucide."

In explaining points of Attic law, I frequently, for the purpose of illustration, refer to the laws of modern times. This hardly needs an apology. In the legislation of all civilized countries we may trace certain common principles, amidst an infinite variety of codes and ordinances. When we find such agreement in essential points, we ascribe it not to accident or imitation, but to the natural instinct of a social being. In mere conventional rules and matters of form, it is not unpleasing to discover a resemblance between the institutions of remote ages. A comparison of laws, by exhibiting the advantages of one system and the defects of another, affords to the observant reader materials for many a practical lesson; while it is useful to all, inasmuch as every subject of knowledge is better taught by the help of analogy. Nor is it without advantage, at the same time to illustrate the law of Athens, and to introduce the reader to some acquaintance with his own: for I may fairly suppose, that the greater part of my readers will be young men, pursuing their studies at the University or elsewhere.

I have already explained the general features of the Attic law, the constitution of its courts, and their procedure and practice. It remains only to notice some peculiarities attending them, and to make such observations upon their character, as reflection and experience suggest.

The principal point to be noticed is the tribunal itself, by which Attic causes were tried; I mean the jury. Its members, its powers, its temper and qualification for judicial duties, are subjects demanding particular attention.

The Heliastic tribunal, or jury, was originally designed by Solon for political purposes, to revise the laws, to correct constitutional abuses, and punish offenders against the state. A body of six thousand citizens was therefore chosen by lot every year, to form a supreme court, called Heliæa, which was divided into several smaller courts,

varying in number according to the exigency of the occasion. The qualifications required for the Helixa were the same with those required for the popular Assembly, except that the members of the former must have reached their thirtieth year of age. The political object which Solon had in view appears partly (as Thirlwall has observed) from the oath prescribed to its members; and still more from the enactments respecting the revision of the laws, and the punishment of persons who sought to introduce new laws against the spirit of the constitution. The oath occurs in the speech against Timocrates (ante, p. 38,) and with respect to the revision of the laws &c., the reader will find every information in that same speech and in Volume II. Appendix VII.

From this body of men, originally constituted with a political object, were taken the juries who were impanelled to try private causes; and hence it came about, first, that they were impanelled in such large numbers, rarely less than two or three hundred, and sometimes five hundred or a thousand; and secondly, that they were entrusted with the whole judicial power, after the cause was brought into court, the power (namely) of deciding upon the law as well as the fact, without being directed or controlled by a presiding judge. Such being the origin of this regulation, we will proceed to examine some of its effects and consequences. But before we do so, let us see what Thirlwall has said upon the subject in his History of Greece. (Vol. II. p. 47.)

"Solon believed that no higher qualities were requisite for the discharge of the duties he assigned to them, than the ordinary degree of intelligence and integrity which might be expected in every citizen, aided by that practical experience, which it was the great object of his institutions to impart equally to all. Nothing seems more directly opposite to his views, and to the genius of his system, than the design attributed to him by Plutarch, who fancies that he wrapt his laws in studied obscurity, for the purpose of multiplying the causes of litigation. It is possible that their antique simplicity itself may have laid them more open to be wrested by chicanery than those framed in ages of greater refinement. But the legislator himself assuredly thought their sense so plain, as to be within the reach of the commonest capacity. Hence he was not led to draw that nice distinction, which is so familiar to us, between the province of the judge and jury: hence every magistrate, within whose sphere of administration legal controversies might arise, was empowered to preside over the court to which they were referred: hence at Athens there was no class of men who dedicated themselves to the study of the law as a profession; the only persons who there corresponded in some degree to the Roman jurists, were the expounders of the traditional rules and forms concerning religious observances. It was Solon's wish to accustom every citizen to consider himself as personally concerned in the (1) ἐξηγηταί.

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maintenance of the laws: the best state, he is reported to have said, is that in which all who witness wrong are no less active in procuring its redress and the punishment of the aggressor, than the sufferer himself. Hence he permitted and encouraged every citizen to come forward as a prosecutor, in cases affecting the interest of the state; and he multiplied the avenues to justice, by affording the means of choosing among a great variety of modes of proceeding. The motive which led Solon to direct that so great a number of jurors as composed each of the Heliastic courts, never amounting to less than several hundreds, should sit together on the same cause, must be referred to the view he took of them as representatives of the people. Hence, to ensure that the spirit with which they were animated should always be in accordance with the opinions and sentiments of the whole body, it might seem necessary to collect them in large masses. For the same reason they were free from all legal responsibility; and they were screened from disgrace, not only by the greatness of their numbers, but by the secrecy of their votes. It might reasonably have been expected, that the danger arising from the certainty of impunity, accompanying the exercise of almost absolute power, would have been in some measure compensated by the security which seemed to be afforded by the same causes against venality and corruption. We learn however, that means were at length discovered of eluding these obstacles, and that the practice of bribery in the courts of justice was reduced to a regular system."

The charge of corruption which has been brought against the Athenian juries rests upon too slender authority to be fully credited. Anytus may possibly (as Plutarch says) have bribed the jury upon his own trial for treason; but that bribery was reduced to a system is not sufficiently made out by a quotation from Aristotle by Harpocration. We find no evidence of it in the Attic orators; and the number of the jury, as well as their voting by ballot, renders the supposition improbable. I am inclined to think, that the Attic jurors were tolerably free from motives of direct personal interest; though, in their collective character, they were subject to certain other dangerous influences, natural and perhaps inevitable under the cir


With a large body of men there is not the same feeling of responsibility as with a small body; and more especially when they vote by ballot. No juror could by his own suffrage secure a righteous judg ment, and the shame of an unjust one was nothing, when shared among so many. The reader will remember what Demosthenes says on the trial of Aristogiton, (ante, p. 81, 82.) And Lycurgus expressed a similar fear, when he said to the jury-"remember, though each of you will vote in secret, he cannot conceal his intention from the gods."

The political character of the Attic jurors caused some arguments (1) Sub voce δεκάζων.

to be addressed to them, and supported by evidence, which in our country would be regarded as irrelevant and inadmissible. Such were the attacks made upon the adversary for concealing his property and evading the public services, and the assumption of credit to the speaker for his own liberality and public spirit. Thus, Chrysippus claims the gratitude of the jury for himself and his brother, on account of their donations of corn to the people, of which he produces evidence; and urges how unlikely it was that persons proved to have been so generous should bring an unfounded action for twenty minas: (ante, p. 182.) In the defence of Phormio the advocate calls witnesses to contrast the virtues of his client with the vicious character of the plaintiff; showing that the latter had brought vexatious actions and prosecutions against a multitude of people, while the defendant had done many acts of generosity, both public and private; and he reminds the jury, that the property in dispute would be more serviceable to them in the hands of Phormio, who was always so kind to those who desired his assistance: (ante, p. 218.)

These arguments present themselves in three different aspects. In the first place, the gratitude of the jury is invoked in favour of one of the parties for having rendered public service. This, though we should consider it wholly inadmissible in a private cause between man and man, was nevertheless an appeal to an amiable feeling, and seems not to have been at all objected to at Athens. (Compare ante, p. 250.) Secondly, evidence to character is offered, for the one party, and against the other. This with us is only done on criminal trials, and then only for the accused, and not against him, except, under certain circumstances, in the case of a previous conviction. The thing itself however is far from being absurd; nay, it might in many cases be attended with advantage; though I allow that it is better to adhere to the general rule. Thirdly, we have an appeal to feelings of a more objectionable kind, when the jury are reminded of the benefit they would derive by deciding for the party addressing them. The same argument is still more pointedly urged in the peroration of the second speech against Aphobus; (ante, p. 119;) and it is impossible not to regard it with disapprobation. It appeals to the selfishness of the jury. At the same time we must remember, it is a political, not an individual selfishness, which is appealed to; a selfish patriotism, if such an expression may be allowed. If the jury were influenced by such an argument, it might be in some measure from a sense of duty, though a mistaken one.

Examples of similar arguments from Lysias and Isæus will be found in Volume III. Appendix II.

There is one also in the Trapezitic oration of Isocrates. This was written for a client, a merchant of Bosporus, who had brought an action against Pasion the banker, to recover a deposit. He produces a letter written in his favour by Satyrus, king of the country, whose

minister the plaintiff's father was; and reminds the Athenians of the numerous acts of kindness which Satyrus and his father had done them, by sending corn to Athens in times of scarcity.

One of the most striking instances of attack upon the adversary's character is that in the speech against Midias, where a paper is read reciting various injurious acts which Midias had committed in the course of his life. (See Volume III. p. 109, and the Argument to the speech.)

As the court partook so much of the character of a popular assembly, it must have been susceptible of the various impulses and passions by which that assembly was agitated, and the orators knew how to work upon such materials. We observe how often they address the jury as if they were addressing the whole people of Athens. Decrees of the assembly, or verdicts of other juries, are spoken of as being the acts of the court before whom the speaker stands. "You did this and that-your practice is so and so❞—such are the ordinary expressions. Chrysippus says (ante, p. 184)—“ You are the same persons who punished with death a man who had obtained fresh loans upon your exchange and did not provide for his creditors their securities." I need not multiply examples. The impulses of a popular body are most commonly honest and generous; and the great thing is to give a right direction to them. Zeal for the commonwealth is one; and this was most frequently misdirected at Athens. Sympathy with the oppressed, indignation against cruelty and insolence, are feelings quickly excited in a multitude. These prompted the Athenian courts to favour orphans, heiresses, and people in humble circumstances, and to dislike usurers and avaricious and proud people who gave themselves airs. Hence, as Demosthenes assures us, he was urged by so many people not to drop his prosecution against Midias; (Vol. III. p. 134.) And the son of Aristechmus is bold enough to tell the jury, that his father, upon an action being brought against him by his wards for eighty talents, did wisely to compromise it for three talents, considering the advantages which the plaintiffs would have had; for, says he, "they were orphans and young, and their characters were unknown; things that with you, as every one knows, outweigh a multitude of arguments."


To give way to these good feelings too hastily, too impetuously, too credulously, and so to be imposed upon frequently by designing parties, was inevitable with a court so constituted; nor indeed can any judicial body avoid being led into occasional error even by its virtues. Apollodorus says in the action against Stephanus, that the speech made in Phormio's defence made such an impression on the court, that they would not hear a word that he had to say: (ante, p. 203) and Nicobulus makes a similar complaint against the jury who condemned Euergus: (ante, p. 240.) There are plenty of instances where the orator speaks of previous verdicts as having been

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