[702] Respecting the French juries, M. Cottu (Réflexions sur la Justice Criminale, p. 79) remarks:—

“Le désir ardent de bien faire dont les jurés sont généralement animés, et la crainte de s’égarer, les jette dans une obéissance passive à l’impulsion qui leur est donnée par le président de la Cour d’Assise, et si ce magistrat sait s’emparer de leur estime, alors leur confiance en lui ne connoit plus de bornes. Ils le considèrent comme l’étoile qui doit les guider dans l’obscurité qui les environne, et pleins d’un respect aveugle pour son opinion, ils n’attendent que la manifestation qu’il leur en fait pour la sanctionner par leur déclaration. Ainsi au lieu de deux juges que l’accusé devoit avoir, il n’en a bien souvent qu’un seul, qui est le président de la Cour d’Assise.”

Anselm Feuerbach (in the second part of his work, Ueber die Oeffentlichkeit und Mündlichkeit der Gerechtigkeitspflege, which contains his review of the French judicial system, Ueber die Gerichtsverfassung Frankreichs, Abt. iii, H. v, p. 477) confirms this statement from a large observation of the French courts of justice.

The habit of the French juries, in so many doubtful cases, to pronounce a verdict of guilty, by a majority of seven against five, in which case the law threw the actual condemnation upon the judges present in court, directing their votes to be counted along with those of the jury, is a remarkable proof of this aversion of the jury to the responsibility of decision; see Feuerbach, ibid. p. 481, seqq. Compare also the treatise of the same author, Betrachtungen über das Geschwornen Gericht. pp. 186-198.

[703] I transcribe from an eminent lawyer of the United States, Mr. Livingston, author of a Penal Code for the State of Louisiana (Preface, pp. 12-16), an eloquent panegyric on trial by jury. It contains little more than the topics commonly insisted on, but it is expressed with peculiar warmth, and with the greater fulness, inasmuch as the people of Louisiana, for whom the author was writing, had no familiarity with the institution and its working. The reader will observe that almost everything here said in recommendation of the jury might have been urged by Periklês with much truer and wider application, in enforcing his transfer of judicial power from individual magistrates to the dikasteries.

“By our constitution (i. e. in Louisiana), the right of a trial by jury is secured to the accused, but it is not exclusively established. This, however, may be done by law, and there are so many strong reasons in its favor, that it has been thought proper to insert in the codes a precise declaration that, in all criminal prosecutions, the trial by jury is a privilege which cannot be renounced. Were it left entirely at the option of the accused, a desire to propitiate the favor of the judge, ignorance of his interest, or the confusion incident to his situation, might induce him to waive the advantage of a trial by his country, and thus by degrees accustom the people to a spectacle which they ought never to behold,—a single man determining the fact, applying the law, and disposing at his will of the life, liberty, and reputation of a citizen.... Those who advocate the present disposition of our law say,—admitting the trial by jury to be an advantage, the law does enough when it gives the accused the option to avail himself of its benefits; he is the best judge whether it will be useful to him; and it would be unjust to direct him in so important a choice. This argument is specious, but not solid. There are reasons, and some have already been stated, to show that this choice cannot be freely exercised. There is, moreover, another interest besides that of the culprit to be considered. If he be guilty, the state has an interest in his conviction: and, whether guilty or innocent, it has a higher interest,—that the fact should be fairly canvassed before judges inaccessible to influence, and unbiased by any false views of official duty. It has an interest in the character of its administration of justice, and a paramount duty to perform in rendering it free from suspicion. It is not true, therefore, to say that the laws do enough when they give the choice between a fair and impartial trial, and one that is liable to the greatest objections. They must do more; they must restrict that choice, so as not to suffer an ill-advised individual to degrade them into instruments of ruin, though it should be voluntarily inflicted; or of death, though that death should be suicide.

“Another advantage of rendering this mode of trial obligatory is, that it diffuses the most valuable information among every rank of citizens; it is a school, of which every jury that is impanelled is a separate class, where the dictates of the laws, and the consequences of disobedience to them, are practically taught. The frequent exercise of these important functions, moreover, gives a sense of dignity and self-respect, not only becoming to the character of a free citizen, but which adds to his private happiness. Neither party-spirit, nor intrigue, nor power, can deprive him of this share in the administration of justice, though they can humble the pride of every other office and vacate every other place. Every time he is called on to act in this capacity, he must feel that though placed in the humblest station, he is yet the guardian of the life, the liberty, and the reputation of his fellow-citizens against injustice and oppression; and that while his plain understanding has been found the best refuge for innocence, his incorruptible integrity is pronounced a sure pledge that guilt will not escape. A state whose most obscure citizens are thus individually elevated to perform these august functions; who are alternately the defenders of the injured, the dread of the guilty, the vigilant guardians of the constitution; without whose consent no punishment can be inflicted, no disgrace incurred; who can by their voice arrest the blow of oppression, and direct the hand of justice where to strike,—such a state can never sink into slavery, or easily submit to oppression. Corrupt rulers may pervert the constitution: ambitious demagogues may violate its precepts: foreign influence may control its operations; but while the people enjoy the trial by jury, taken by lot from among themselves, they cannot cease to be free. The information it spreads, the sense of dignity and independence it inspires, the courage it creates, will always give them an energy of resistance that can grapple with encroachments, and a renovating spirit that will make arbitrary power despair. The enemies of freedom know this: they know how admirable a vehicle it is, to convey the contagion of those liberal principles which attack the vitals of their power, and they therefore guard against its introduction with more care than they would take to avoid pestilential disease. In countries where it already exists, they insidiously endeavor to innovate, because they dare not openly destroy: changes inconsistent with the spirit of the institution are introduced, under the plausible pretext of improvement: the common class of citizens are too ill-informed to perform the functions of jurors,—a selection is necessary. This choice must be confided to an agent of executive power, and must be made among the most eminent for education, wealth, and respectability; so that, after several successful operations of political chemistry, a shining result may be obtained, freed, indeed, from all republican dross, but without any of the intrinsic value that is found in the rugged but inflexible integrity, and incorruptible worth, of the original composition. Men impanelled by this process, bear no resemblance but in name to the sturdy, honest, unlettered jurors who derive no dignity but from the performance of their duties; and the momentary exercise of whose functions gives no time for the work of corruption or the influence of fear. By innovations such as these the institution is so changed as to leave nothing to attach the affections or awaken the interest of the people, and it is neglected as an useless, or abandoned as a mischievous, contrivance.”

Consistently with this earnest admiration of jury-trial, Mr. Livingston, by the provisions of his code, limits very materially the interference of the presiding judge, thus bringing back the jurors more nearly to a similarity with the Athenian dikasts (p. 85): “I restrict the charge of the judge to an opinion of the law, and to the repetition of the evidence, only when required by any one of the jury. The practice of repeating all the testimony from notes, always (from the nature of things) imperfectly, not seldom inaccurately, and sometimes carelessly taken,—has a double disadvantage: it makes the jurors, who rely more on the judge’s notes than on their own memory, inattentive to the evidence: and it gives them an imperfect copy of that which the nature of the trial by jury requires that they should record in their own minds. Forced to rely upon themselves, the necessity will quicken their attention, and it will be only when they disagree in their recollection, that recourse will be had to the notes of the judge.” Mr. Livingston goes on to add, that the judges, from their old habits, acquired as practising advocates, are scarcely ever neutral,—almost always take a side, and generally against the prisoners on trial.

The same considerations as those which Mr. Livingston here sets forth to demonstrate the value of jury-trial, are also insisted upon by M. Charles Comte, in his translation of Sir Richard Phillips’s Treatise on Juries, enlarged with many valuable reflections on the different shape which the jury-system has assumed in England and France. (Des Pouvoirs et des Obligations des Jurys, traduit de l’Anglois, par Charles Comte, 2d ed. Paris, 1828, with preliminary Considérations sur le Pouvoir Judiciaire, pp. 100, seqq.)

The length of this note forbids my citing anything farther either from the eulogistic observations of Sir Richard Phillips or from those of M. Comte: but they would be found, like those of Mr. Livingston, even more applicable to the dikasteries of Athens than to the juries of England and America.

[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.

“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.

[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.

[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.