[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.