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.