[659] See K. F. Hermann, Griechische Staatsalterthümer, sects. 53-107, and his treatise De Jure et Auctoritate Magistratuum ap. Athen. p. 53 (Heidelb. 1829); also Rein, Römisches Privatrecht, pp. 26, 408, Leips. 1836. M. Laboulaye also insists particularly upon the confusion of administrative and judiciary functions among the Romans (Essai sur les Loix Criminelles des Romains, pp. 23, 79, 107, etc.): and compare Mr. G. C. Lewis, Essay on the Government of Dependencies, p. 42, with his citation from Hugo, Geschichte des Römischen Rechts, p. 42. Mr. Lewis has given just and valuable remarks upon the goodness of the received classification of powers as a theory, and upon the extent to which the separation of them either has been, or can be, carried in practice: see also Note E, in the same work, p. 347.

The separation of administrative from judicial functions appears unknown in early societies. M. Meyer observes, respecting the judicial institutions of modern Europe: “Anciennement les fonctions administratives et judiciaires n’étoient pas distinctes. Du temps de la liberté des Germains et même long temps après, les plaids de la nation ou ceux du comté rendoient la justice et administroient les intérêts nationaux ou locaux dans une seule et même assemblée: sous le régime féodal, le roi ou l’empereur dans son conseil, sa cour, son parlement composé des hauts barons ecclésiastiques et laïes, exerçait tous les droits de souveraineté comme de justice: dans la commune, le bailli, mayeur, ou autre fonctionnaire nommé par le prince, administraient les intérêts communaux et jugeoient les bourgeois de l’avis de la communauté entière, des corporations qui la composoient, ou des autorités et conseils qui la réprésentoient: on n’avoit pas encore soupçonné que le jugement d’une cause entre particuliers pût être étranger à la cause commune.”—Meyer, Esprit des Institutions Judiciaires, book v, chap. 11, vol. iii, p. 239; also chap. 18, p. 383.

[660] A case of such deposition of an archon by vote of the public assembly, even before the year of office was expired, occurs in Demosthenês, cont. Theokrin. c. 7: another, the deposition of a stratêgus, in Demosthen. cont. Timoth. c. 3.

[661] Æschinês (cont. Ktesiphont, c. 9, p. 373) speaks of the senate of Areopagus as ὑπεύθυνος, and so it was doubtless understood to be: but it is difficult to see how accountability could be practically enforced against such a body. They could only be responsible in this sense,—that, if any one of their number could be proved to have received a bribe, he would be individually punished. But in this sense the dikasteries themselves would also be responsible: though it is always affirmed of them that they were not responsible.

[662] Respecting the procedure of arbitration at Athens, and the public as well as private arbitrators, see the instructive treatise of Hudtwalcker, Ueber die öffentlichen und Privat-Schiedsrichter (Diaeteten) zu Athen: Jena, 1812.

Each arbitrator seems to have sat alone to inquire into and decide disputes: he received a small fee of one drachma from both parties: also an additional fee when application was made for delay (p. 16). Parties might by mutual consent fix upon any citizen to act as arbitrator: but there were a certain number of public arbitrators, elected or drawn by lot from the citizens every year: and a plaintiff might bring his cause before any one of these. They were liable to be punished under εὔθυναι, at the end of their year of office, if accused and convicted of corruption or unfair dealing.

The number of these public diætetæ, or arbitrators, was unknown when Hudtwalcker’s book was published. An inscription, since discovered by Professor Ross, and published in his work, Über die Demen von Attika, p. 22, records the names of all the diætetæ for the year of the archon Antiklês, B. C. 325, with the name of the tribe to which each belonged.

The total number is one hundred and four: the number in each tribe is unequal; the largest number is in Kekropis, which furnishes sixteen; the smallest in Pandionis, which sends only three. They must have been either elected or drawn by lot from the general body of citizens, without any reference to tribes. The inscription records the names of the diætetæ for this year B. C. 325, in consequence of their being crowned or receiving a vote of thanks from the people. The fragment of a like inscription for the year B. C. 337, also exists.

[663] Public Economy of the Athenians, book ii, chap. xiv, p. 227. Engl. transl.

M. Boëckh must mean that the whole six thousand, or nearly the whole, were employed every day. It appears to me that this supposition greatly overstates both the number of days and the number of men actually employed. For the inference in the text, however, a much smaller number is sufficient.

See the more accurate remark of Schömann, Antiquit. Juris Public. Græcor., sect. lxxi, p. 310.

[664] Aristotel. Politic. ii, 9, 3. Καὶ τὴν μὲν ἐν Ἀρείῳ πάγῳ βουλὴν Ἐφιάλτης ἐκόλουσε καὶ Περικλῆς· τὰ δὲ δικαστήρια μισθοφόρα κατέστησε Περικλῆς· καὶ τοῦτον δὴ τὸν τρόπον ἕκαστος τῶν δημαγωγῶν προήγαγεν, αὔξων εἰς τὴν νῦν δημοκρατίαν. Φαίνεται δ’ οὐ κατὰ τὴν Σόλωνος γενέσθαι τοῦτο προαίρεσιν, ἀλλὰ μᾶλλον ἀπὸ συμπτώματος. Τῆς ναυαρχίας γὰρ ἐν τοῖς Μηδικοῖς ὁ δῆμος αἴτιος γενόμενος ἐφρονηματίσθη, καὶ δημαγωγοὺς ἔλαβε φαύλους, ἀντιπολιτευομένων τῶν ἐπιεικῶν· ἐπεὶ Σόλων γ’ ἔοικε τὴν ἀναγκαιοτάτην ἀποδιδόναι τῷ δήμῳ δύναμιν, τὸ τὰς ἀρχὰς αἱρεῖσθαι καὶ εὐθύνειν· μηδὲ γὰρ τούτου κύριος ὢν ὁ δῆμος δοῦλος ἂν εἴη καὶ πολέμιος.

The words τὰ δὲ δικαστήρια μισθοφόρα κατέστησε Περικλῆς, are commonly translated, “Periklês first gave pay to the dikasteries,” wherein it is assumed that these bodies had before judged gratuitously. But it appears to me that the words ought to be translated, “Periklês first constituted the paid dikasteries:” that is, the dikasteries as well as the pay were of his introduction.

It is evident from this whole passage that Aristotle did not suppose the dikasteries, either gratuitous or paid, to have been constituted by Solon, but to have been foreign to the purpose of that lawgiver, and to have been novelties emanating from Periklês and Ephialtês, at the same time that the judicial functions of the senate of Areopagus were cut down.

[665] Deinarchus cont. Demosthen. Or. i, p. 91. φυλάττει τὰς ἀποῤῥήτους διαθήκας, ἐν αἷς τὰ τῆς πόλεως σωτήρια κεῖται, etc. So also Æschinês calls this senate τὴν σκυθρωπὸν καὶ τῶν μεγίστων κυρίαν βουλὴν (cont. Ktesiphont. c. 9, p. 373: compare also cont. Timarchum, c. 16, p. 41; Demosth. cont. Aristokrat. c. 65, p. 641). Plutarch, Solon, c. 19. τὴν ἄνω βουλὴν ἐπίσκοπον πάντων καὶ φύλακα τῶν νόμων, etc.

Ἐδίκαζον οὖν οἱ Ἀρεοπαγῖται περὶ πάντων σχεδὸν τῶν σφαλμάτων καὶ παρανομιῶν, ὡς ἅπαντά φησιν Ἀνδροτίων ἐν πρώτῃ καὶ Φιλόχορος ἐν δευτέρᾳ καὶ τρίτῃ τῶν Ἀτθίδων (Philochorus, Fr. 17-58, ed. Didot, p. 19, ed. Siebelis).

See about the Areopagus, Schömann, Antiq. Jur. Att. sect. lxvi.; K. F. Hermann, Griech. Staatsalterthümer, sect. 109.

[666] Aristotel. Politic. ii, 6, 18.

[667] Aristotle particularly indicates these two conflicting tendencies in Athens, the one immediately following the other, in a remarkable passage of his Politics (v, 3, 5).

Μεταβάλλουσι δὲ καὶ εἰς ὀλιγαρχίαν καὶ εἰς δῆμον καὶ εἰς πολιτείαν ἐκ τοῦ εὐδοκιμῆσαί τι ἢ αὐξηθῆναι ἢ ἀρχεῖον ἢ μόριον τῆς πόλεως· οἷον, ἡ ἐν Ἀρείῳ πάγῳ βουλὴ εὐδοκιμήσασα ἐν τοῖς Μηδικοῖς ἔδοξε συντονωτέραν ποιῆσαι τὴν πολιτείαν. Καὶ πάλιν ὁ ναυτικὸς ὄχλος γενόμενος αἴτιος τῆς περὶ Σαλαμῖνα νίκης καὶ διὰ ταύτης τῆς ἡγεμονίας διὰ τὴν κατὰ θάλατταν δύναμιν, τὴν δημοκρατίαν ἰσχυροτέραν ἐποίησεν.

The word συντονωτέραν (“stricter, more rigid,”) stands opposed in another passage to ἀνειμένας (iv, 3, 5).

[668] Plutarch. Reipub. Ger. Præcept. p. 805. Οὐκ ἀγνοῶ δὲ, ὅτι βουλήν τινες ἐπαχθῆ καὶ ὀλιγαρχικὴν κολούσαντες, ὥσπερ Ἐφιάλτης Ἀθήνῃσι καὶ Φορμίων παρ’ Ἠλείοις, δύναμιν ἅμα καὶ δόξαν ἔσχον.

About the oligarchical character of the Areopagites, see Deinarchus cont. Demosthen. pp 46, 98.

[669] Plutarch, Kimon, c. 16; Themistoklês, c. 20.

[670] Plutarch, Periklês, c. 4-7., seq.

[671] Herodot. vi, 131.

[672] Plutarch, Reipub. Gerend. Præcept. p. 812; Periklês, c. 5, 6, 7.

[673] Plato, Phædrus, c. 54, p. 270; Plutarch, Periklês, c. 8; Xenoph. Memor. i, 2, 46.

[674] Plutarch, Periklês, c. 9, 16; Kimon, c. 10; Reipubl. Gerend. Præcept. p. 818.

[675] The personal intercourse between Periklês and Protagoras is attested by the interesting fragment of the latter which we find in Plutarch, Consolat. ad Apollonium, c. 33, p. 119.

[676] Aristophan. Nubes, 972, 1000, seq. and Ranæ, 1071.

[677] Plutarch, Kimon, c. 10; Ælian, V. H. ii, 43; xi, 9.

[678] Plutarch, Periklês, c. 10: compare Valer. Maxim. iii, 8, 4. Ἐφιάλτην μὲν οὖν, φοβερὸν ὄντα τοῖς ὀλιγαρχικοῖς καὶ περὶ τὰς εὐθύνας καὶ διώξεις τῶν τὸν δῆμον ἀδικούντων ἀπαραίτητον, ἐπιβουλεύσαντες οἱ ἐχθροὶ δι’ Ἀριστοδίκου τοῦ Ταναγρικοῦ κρυφαίως ἀνεῖλον, etc.

[679] Plutarch, Kimon, c. 16.

[680] Plutarch, Kimon, c. 17. Οἱ δὲ πρὸς ὀργὴν ἀπελθόντες ἤδη τοῖς λακωνίζουσι φανερῶς ἐχαλέπαινον, καὶ τὸν Κίμωνα μικρᾶς ἐπιλαβόμενοι προφάσεως ἐξωστράκισαν εἰς ἔτη δέκα.

I transcribe this passage as a specimen of the inaccurate manner in which the ostracism is so often described. Plutarch says: “The Athenians took advantage of a slight pretence to ostracize Kimon:” but it was the peculiar characteristic of ostracism that it had no pretence: it was a judgment passed without specific or assigned cause.

[681] Demosthen. cont. Euerg. et Mnesibul. c. 12.

[682] Harpokration—Ὁ κάτωθεν νόμος—Pollux, viii, 128.

[683] Arist. Polit. iv, 5, 6. ἔτι δ’ οἱ ταῖς ἀρχαῖς ἐγκαλοῦντες τὸν δῆμόν φασι δεῖν κρίνειν· ὁ δὲ ἀσμένως δέχεται τὴν πρόκλησιν· ὥστε καταλύονται πᾶσαι αἱ ἀρχαί, etc.; compare vi, 1, 8.

The remark of Aristotle is not justly applicable to the change effected by Periklês, which transferred the power taken from the magistrates, not to the people but to certain specially constituted, though numerous and popular dikasteries, sworn to decide in conformity with known and written laws. Nor is the separation of judicial competence from administrative, to be characterized as “dissolving or extinguishing magisterial authority.” On the contrary, it is conformable to the best modern notions. Periklês cannot be censured for having effected this separation, however persons may think that the judicature which he constituted was objectionable.

Plato seems also to have conceived administrative power as essentially accompanied by judicial (Legg. vi, p. 767)—πάντα ἄρχοντα ἀναγκαῖον καὶ δικαστὴν εἶναι τίνων—an opinion, doubtless, perfectly just, up to a certain narrow limit: the separation between the two sorts of powers cannot be rendered absolutely complete.

[684] Demosthen. cont. Neær. p. 1372; cont. Aristokrat. p. 642.

Meier (Attischer Prozess, p. 143) thinks that the senate of Areopagus was also deprived of its cognizance of homicide as well as of its other functions, and that this was only restored after the expulsion of the Thirty. He supposes this to be proved by a passage of Lysias which he produces (De Cæde Eratosthenis, pp. 31-33).

M. Boëckh and O. Müller adopt the same opinion as Meier, and seemingly on the authority of the same passage, (see the Dissertation of O. Müller on the Eumenides of Æschylus, p. 113, Eng. transl.) But in the first place, this opinion is contradicted by an express statement in the anonymous biographer of Thucydidês, who mentions the trial of Pyrilampês for murder before the Areopagus; and contradicted also, seemingly, by Xenophon (Memorab. iii, 5, 20); in the next place, the passage of Lysias appears to me to bear a different meaning. He says: ᾧ καὶ πάτριόν ἐστι καὶ ἐφ’ ὑμῶν ἀποδέδοται τοῦ φόνου τὰς δίκας δικάζειν: now—even if we admit the conjectural reading ἐφ’ ὑμῶν in place of ἐφ’ ὑμῖν to be correct—still, this restoration of functions to the Areopagus, refers naturally to the restored democracy after the violent interruption occasioned by the oligarchy of Thirty. Considering how many persons the Thirty caused to be violently put to death, and the complete subversion of all the laws which they introduced, it seems impossible to suppose that the Areopagus could have continued to hold its sittings and try accusations for intentional homicide, under their government. On the return of the democracy after the Thirty were expelled, the functions of the senate of Areopagus would return also.

If the supposition of the eminent authors mentioned above were correct,—if it were true that the Areopagus was deprived not only of its supervising function generally, but also of its cognizance of homicide, during the fifty-five years which elapsed between the motion of Ephialtês and the expulsion of the Thirty,—this senate must have been without any functions at all during that long interval; it must have been for all practical purposes non-existent. But during so long a period of total suspension, the citizens would have lost all their respect for it; it could not have retained so much influence as we know that it actually possessed immediately before the Thirty (Lysias c. Eratosth. c. 11, p. 126); and it would hardly have been revived after the expulsion of the Thirty. Whereas, by preserving during that period its jurisdiction in cases of homicide, apart from those more extended privileges which had formerly rendered it obnoxious, the ancient traditional respect for it was kept alive, and it was revived, after the fall of the Thirty, as a venerable part of the old democracy; even apparently with some extension of privileges.

The inferences which O. Müller wishes to draw, as to the facts of these times, from the Eumenides of Æschylus, appear to me ill-supported. In order to sustain his view, that, by virtue of the proposition of Ephialtês “the Areopagus almost entirely ceased to be a high court of judicature,” (sect. 36, p. 109,) he is forced to alter the chronology of the events, and to affirm that the motion of Ephialtês must have been carried subsequently to the representation of the Eumenides, though Diodorus mentions it in the year next but one before, and there is nothing to contradict him. All that we can safely infer from the very indistinct allusions in Æschylus, is, that he himself was full of reverence for the Areopagus, and that the season was one in which party bitterness ran so high as to render something like civil war (ἐμφύλιον Ἅρη, v. 864) within the scope of reasonable apprehension. Probably, he may have been averse to the diminution of the privileges of the Areopagus by Ephialtês: yet even thus much is not altogether certain, inasmuch as he puts it forward prominently and specially as a tribunal for homicide, exercising this jurisdiction by inherent prescription, and confirmed in it by the Eumenides themselves. Now when we consider that such jurisdiction was precisely the thing confirmed and left by Ephialtês to the Areopagus, we might plausibly argue that Æschylus, by enhancing the solemnity and predicting the perpetuity of the remaining privilege, intended to conciliate those who resented the recent innovations, and to soften the hatred between the two opposing parties.

The opinion of Boëckh, O. Müller, and Meier, respecting the withdrawal from the senate of Areopagus of the judgments on homicide, by the proposition of Ephialtês, has been discussed, and in my judgment refuted, by Forchhammer, in a valuable Dissertation, De Areopago non privato per Ephialten Homicidii Judiciis. Kiel, 1828.

[685] This is the language of those authors whom Diodorus copied (Diodor. xi, 77)—οὐ μὴν ἀθρόως γε διέφυγε τηλικούτοις ἀνομήμασιν ἐπιβαλόμενος (Ephialtês), ἀλλὰ τῆς νυκτὸς ἀναιρεθεὶς, ἄδηλον ἔσχε τὴν τοῦ βίου τελευτήν. Compare Pausanias, i, 29, 15.

Plutarch (Periklês, c. 10) cites Aristotle as having mentioned the assassination of Ephialtês. Antipho, however, states that the assassin was never formally known or convicted (De Cæde Hero. c. 68).

The enemies of Periklês circulated a report, mentioned by Idomeneus, that it was he who had procured the assassination of Ephialtês, from jealousy of the superiority of the latter (Plutarch, Periklês, c. 10). We may infer from this report how great the eminence of Ephialtês was.

[686] The intervention of Elpinikê, the sister of Kimon, in bringing about this compromise between her brother and Periklês, is probable enough (Plutarch, Periklês, c. 10, and Kimon, c. 14). Clever and engaging, she seems to have played an active part in the political intrigues of the day: but we are not at all called upon to credit the scandals insinuated by Eupolis and Stesimbrotus.

[687] We hear about these nomophylakes in a distinct statement cited from Philochorus, by Photius, Lexic. p. 674, Porson. Νομοφύλακες· ἕτεροί εἰσι τῶν θεσμοθετῶν, ὡς Φιλόχορος ἐν ζ’· οἱ μὲν γὰρ ἄρχοντες ἀνέβαινον εἰς Ἄρειον πάγον ἐστεφανώμενοι, οἱ δὲ νομοφύλακες χρύσια στρόφια ἄγοντες· καὶ ταῖς θεαῖς ἐνάντιον ἀρχόντων ἐκαθέζοντο· καὶ τὴν πομπὴν ἔπεμπον τῇ Παλλάδι· τὰς δὲ ἀρχὰς ἠνάγκαζον τοῖς νόμοις χρῆσθαι· καὶ ἐν τῇ ἐκκλησίᾳ καὶ ἐν τῇ βουλῇ μετὰ τῶν προέδρων ἐκάθηντο, κωλύοντες τὰ ἀσύμφορα τῇ πόλει πράττειν· ἕπτα δὲ ἦσαν· καὶ κατέστησαν, ὡς Φιλόχορος, ὅτε Ἐφιάλτης μόνῃ κατέλιπε τῇ ἐξ Ἀρείου πάγου βουλῇ τὰ ὑπὲρ τοῦ σώματος.

Harpokration, Pollux, and Suidas, give substantially the same account of these magistrates, though none except Photius mentions the exact date of their appointment. There is no adequate ground for the doubt which M. Boëckh expresses about the accuracy of this statement: see Schömann, Antiq. Jur. Pub. Græc. sect. lxvi; and Cicero, Legg. iii, 20.

[688] See Xenophon, Hellenic. i, 7; Andokidês de Mysteriis, p. 40.

[689] Demosthen. cont. Timokrat. c. 20, pp. 725, 726. Ἆρ’ οὖν τῷ δοκεῖ συμφέρειν τῇ πόλει τοιοῦτος νόμος, ὃς δικαστηρίου γνώσεως αὐτὸς κυριώτερος ἔσται, καὶ τὰς ὑπὸ τῶν ὀμωμοκότων γνώσεις τοῖς ἀνωμότοις προστάξει λύειν; Ἐνθυμεῖσθε, ἀπὸ τοῦ δικαστηρίου καὶ τῆς καταγνώσεως οἷ διεπήδησεν (Timokratês) ἐπὶ τὸν δῆμον, ἐκκλέπτων τὸν ἠδικηκότα! Compare Demosthen. cont. Eubulid. c. 15.

See, about the nomothetæ, Schömann, De Comitiis, ch. vii, p. 248, seqq., and Platner, Prozess und Klagen bey den Attikern, Abschn. ii, 3, 3, p. 33, seqq.

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.

[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.

[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.

[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.

[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.