given hastily and wrongly; and how often do they insinuate their fears, lest the opponent should prevail against them by a crafty speech or other improper means.

It was not possible in a city like Athens, that a bench, composed of three or four hundred persons, should be entirely free from prejudice and partiality, either on private or political grounds: nor were such influences discountenanced as they should have been. Plutarch reports Themistocles to have said "Heaven forbid that, if I were on the bench, I should not favour a friend more than a stranger." I do not attach so much importance to this story, as to the express statements of the orators, and the general tenor of their arguments. Personal enmity was held to be a just ground for undertaking a prosecution, and why should the judge have a higher code of morality than the prosecutor? (See the opening of the speeches against Androtion, Timocrates, Nicostratus, Neæra; and see what Mantitheus says, ante, pages 256, 260. On the other hand, Lycurgus on the prosecution of Leocrates, and Euthycles on that of Aristocrates, disclaim motives of private enmity.) The practice of bringing friends into court to influence the jury, if it was not considered perfectly. legitimate, was at all events tolerated, and stood pretty much on the same footing with the custom of producing a man's children at the bar, to move the compassion of the jury, and obtain a mitigation of his sentence. The term Tapaσkeun, which (according to its natural import) might signify the whole preparation for conducting a cause, was understood in a more limited sense to denote an array of friends, who by their appearance in court, or by open intercession and advocacy, endeavoured to influence the bench. (See the opening of the speech of Andocides On the Mysteries.) Cicero's language is a paraphrase of this term: "non una est ratio defensionis ea, quæ posita est in oratione. Omnes qui adsunt, qui laborant, qui salvum volunt, pro suâ parte atque auctoritate defendunt." Lycurgus, who was one of the most pure and high-minded men that Athens ever produced, condemns the practice in his speech against Leocrates: (20, Ed. Bekker:) His words are: "You are aware, men of Athens, of the efforts which are made by accused persons to influence the court, and the earnest petitions which are made for them by their friends. You well know, that many witnesses are induced by jobbing and by bribery either to have a conveniently bad memory, or to absent themselves, or find excuses.' Demosthenes is constantly attacking, either obliquely or directly, the supporters of his opponent, who were perhaps standing near to the speaker, or looking at the jury, and making themselves conspicuous and offensive by sneers and expressions of dissent. The spirit of party and club-fellowship was powerful at Athens, and would lead men to support one another in courts of justice as well as in the assembly and elsewhere. Other bonds of union of a less reputable character are sometimes spoken of by the orators, such as the gangs of swindlers in the Piræus and

similar combinations; (ante, pages 153, 240, 256 :) but allowance must always be made for the exaggerating language of an adverse speaker. The attendance of friends and partisans, to sway the votes of the jury, was far more common, and doubtless considered more legitimate, in criminal than in civil cases; yet it occurred in both, and especially on important trials, and in the case of persons, who by their station or popularity were able to command influence, such as Eschines, Timotheus, or a rich banker like Phormio: (See ante, pages 41, 68, 138.) It might happen that a party had made himself unpopular in the city by his habits of life, or even by his manners and personal appearance, and people who saw him every day in the street or market might be on the bench. This would operate against him, and the more so, as he was obliged to be in court, and generally to conduct his own cause. Nicobulus deprecates the prejudice which might be raised against him by the fact of his being a money-lender, or by his coarse demeanour and other personal peculiarities; and adroitly endeavours (or rather Demosthenes, who wrote his speech, endeavours for him) to turn the prejudice against the adversary, for having sought to take an unfair advantage of those circumstances: (ante, p. 241.)

Another consequence of having a numerous jury taken from a small population was, that the jurors must often have had a knowledge of the facts of the case, or some of them, and this knowledge was often appealed to, and sometimes for lack of other proof. In many cases there could be no great harm in this; at all events, it was unavoidable, and the same for both parties. Things which had passed in the popular assembly, or upon other trials, would be referred to as notorious. (See ante, pp. 5, 142.) There is an example in the speech against Euergus and Mnesibulus, p. 1152: and one in that of Lysias against Theomnestus. The plaintiff has brought an action for defamation. The defendant had some time before been impeached for cowardice in battle, and, because the plaintiff had given evidence against him, he called him a parricide. The plaintiff says in the opening of his speech-"I shall be at no loss for witnesses; for I see many of you who are now on the bench were present at the former trial." In the speech against Onetor, Demosthenes speaks of the notoriety of the misconduct of his guardians, and of meetings having been held during his minority before the archon and other persons. Statements of this kind abound, and are often made artfully and designedly. One of the most remarkable cases of appeal to general notoriety is that of Eschines on the accusation of Timarchus (89, Ed. Bekker.) He calls on the jurors to be his witnesses, excusing himself for not producing other testimony on account of the difficulty of procuring it, because the only direct evidence would be that of accomplices, who could not be expected to come forward and criminate themselves. But the whole previous life of Timarchus, he contends, was before the court, and everyone knew

that

the vices which he had been addicted to. "Such "says the orator "is the testimony given by the whole people of Athens, and it is not meet that they should be supposed guilty of falsehood." In support of his argument, he refers to the practice of the Areopagus, and proceeds thus:

"Take for example the council of Areopagus, the strictest tribunal in the city. Many have I seen convicted before that court, who spoke exceedingly well and produced witnesses; others I have known to succeed, who spoke very badly and offered no evidence. The judgments of that council are not formed from the speeches and witnesses alone, but are the result of their own knowledge and inquiry; therefore it has ever continued to hold the highest reputation in this republic. In the same manner ought you, Athenians, to pass sentence now. Let nothing weigh with you so much as your own knowledge and impression respecting the conduct of Timarchus; and, in forming your opinions, look to the past rather than to the present time. The reports, which were spread in former times about Timarchus and his mode of life, were founded in truth; whereas the statements, which you will hear to-day, are concerted to deceive you at the trial. Upon these principles give your judgment, baving regard to length of time and to truth, and to the facts within your own knowledge."

Then he dilates on the efficacy of Fame or Rumour, who was worshipped as a goddess at Athens, and quotes verses in praise of her from Hesiod, Homer, and Euripides.

The argument is commented on by Demosthenes in the Oration on the Embassy, where he contends that Æschines ought to be convicted on his own principles. (Vol. II. p. 191.)

Originally our own jurors were only witnesses; which came about in this way. A custom sprang up in ancient times of calling in the assistance of the neighbours, or inhabitants of the county or district, to speak to facts within their own knowledge upon important trials. Various examples of this practice are recorded both in the Saxon era, upon trials in the old county courts, and in the first century after the Conquest, upon trials before the king's justiciary. The persons thus called in to assist the courts by their information were at first nothing more than witnesses, speaking to facts within their own knowledge. Sometimes a very large number of these were called in, and being supposed to represent all the testimony of the county or district, the courts deferred to their superior knowledge and gave judgment in accordance with it. So it became the practice on important occasions to summon such persons to attend the courts; and these bodies of men, taken from the neighbourhood, from witnesses became a sort of referees, and virtually the deciding tribunal. The thing was made perpetual by the establishment of the Grand Assize in the reign of Henry II. and the practice that grew up under it; which was adapted, with some variation, to criminal cases. And both in these

and in civil cases it long continued to be an essential qualification for a juror, that he should have some previous knowledge of the facts; and therefore all the jurors were obliged to be summoned from the neighbourhood; in criminal cases, from the neighbourhood where the crime was committed, and in civil cases, from the neighbourhood where the disputed property lay, or where the litigants resided. It was not sufficient to have a jury from the county at large, as it now is; it was necessary that the jury should be drawn from the parish or district, in order that they might assist the court with their knowledge of the circumstances.

This ancient law in England gradually gave way to a change in public opinion, but not till the close of the seventeenth century. It then became a maxim, (which is now finally settled in our law,) that juries were not to find verdicts of their own knowledge, but to decide wholly by the evidence which they heard in court; and, if any juror possessed private information upon the subject, he was bound to inform the court of it. This principle once being established, there ceased to be any advantage in having juries from the immediate neighbourhood; indeed, it was considered better to avoid the prejudice or partiality which a jury consisting of neighbours might import into the trial; and so, after the old practice had been for some time considerably relaxed, it was enacted by a statute in the reign of Queen Anne, that juries in civil cases should be summoned from the body of the county; and the same rule was afterwards applied to criminal trials.

In a city where the whole body of jurors was only six thousand, it was impossible to apply such a rule as now prevails with us: the bench must always have been composed (more or less) of the neighbours of the parties. As the Athenians never retired to consider their verdict, but gave their votes immediately after the termination of the speeches, they had not much opportunity of communicating with each other. If any juror possessed a private knowledge of the facts, he might whisper it perhaps to the man who sat next him, or he might indicate by some sign his assent to the speaker's statement; but such a medium of proof must have been uncertain and dangerous. We may conceive that a party might have a friend on the bench, who helped him in this way. It was a common trick for the parties to assume that certain facts, from their general notoriety, needed no proof, and to use such expressions as the following "You are of course aware “I presume, none of you are ignorant." We have seen how Demosthenes, who employs the artifice so frequently himself, cautions the jury against being taken in by it: (ante, p. 279:)—" he is such a crafty knave, that, what he has no witnesses to prove, he will say is well known to you, men of the jury: a trick which all people resort to, who have no good argument to offer. Should he attempt such a trick, put him down; expose him. What any one of you does not know, don't let him fancy his neighbour knows: require

Bootus to give clear proof of everything he asserts, &c." It appears, as if he were asking the jurors to express their dissent to any assertions that should be made in this way.

With respect to the ability of the Athenian jurors to perform the judicial duty imposed on them, there is a good deal to be said on both sides. That they should perform it in a thoroughly business-like manner, or so as to fulfil what may have been Solon's conception of the trust confided to them, was hardly in the nature of things. They had to administer justice according to the written law, and of course to interpret that law; where there was no written statute, they were bound to decide according to the best of their ability; that is, in the absence of any express legislative provision, they were required to apply the general principles of law and justice to the case before them. They were also sole judges of the facts of every case. They were persons of no legal education or learning; taken at haphazard from the whole body of citizens, and mostly belonging to the lowest and poorest class of them. On the other hand, the Athenians were naturally the quickest and cleverest people in the world. Their wits were sharpened by the habit of attending the theatres and public assemblies, of taking an active part in important debates, and hearing the most splendid orators. There was so much litigation at Athens, that they were constantly either engaged as jurors, or present as spectators in courts of law. Cases of all varieties were brought before them, involving difficult questions concerning pedigree and succession, marital and filial right, mercantile and mining contracts, besides assaults, trespasses, frauds, and criminal charges of every description. Then they lived an out-of-door life, constantly meeting in the market-place or elsewhere, hearing foreign news, discussing politics, &c. All this was a sort of education, and, if not the best, still it fitted the people in some measure for the performance of the duties we are speaking of.

The materials for the trial were prepared by the parties themselves or their pleaders, under the superintendence of the magistrate; and I apprehend that important cases were generally got up under the advice of pleaders, at least where the suitors were not men of experience or ability. The jury had to decide upon the materials thus prepared. There was no examination of witnesses in court, requiring a nice application of rules of evidence: all that was done beforehand. As there were no multiplied copies of the statutes, they depended for their law upon the copies or extracts produced by the parties. The orators have been accused of sometimes misquoting or garbling the law; and such a thing may have been done occasionally; yet it must have been a dangerous experiment; for the laws which either party relied on were always reduced to writing and put into the box together with the other evidentiary documents; the production of a fictitious law was an offence punishable with death; and, as every citizen had access to the temple of Cybele and other places where the