Judging from the title of this indictment, it was originally confined to the special ground of formal contradiction between the new and the old. But it had a natural tendency to extend itself: the citizen accusing would strengthen his case by showing that the measure which he attacked contradicted not merely the letter, but the spirit and purpose of existing laws,—and he would proceed from hence to denounce it as generally mischievous and disgraceful to the state. In this unmeasured latitude, we find the graphê paranomôn at the time of Demosthenês: the mover of a new law or psephism, even after it had been regularly discussed and passed, was liable to be indicted, and had to defend himself not only against alleged informalities in his procedure, but also against alleged mischiefs in the substance of his measure. If found guilty by the dikastery, the punishment inflicted upon him by them was not fixed, but variable according to circumstances; for the indictment belonged to that class wherein, after the verdict of guilty, first a given amount of punishment was proposed by the accuser, next, another and lighter amount was named by the accused party against himself,—the dikastery being bound to make their option between one and the other, without admitting any third modification,—so that it was the interest even of the accused party to name against himself a measure of punishment sufficient to satisfy the sentiment of the dikasts, in order that they might not prefer the more severe proposition of the accuser. At the same time, the accuser himself, as in other public indictments, was fined in the sum of one thousand drachms, unless the verdict of guilty obtained at least one-fifth of the suffrages of the dikastery. The personal responsibility of the mover, however, continued only one year after the introduction of his new law: if the accusation was brought at a greater distance of time than one year, the accuser could invoke no punishment against the mover, and the sentence of the dikasts neither absolved nor condemned anything but the law. Their condemnation of the law, with or without the author, amounted ipso facto to a repeal of it.
Such indictment against the author of a law or of a decree, might be preferred either at some stage prior to its final enactment,—as after its acceptance simply by the senate, if it was a decree, or after its approval by the public assembly, and prior to its going before the nomothetæ, if it was a law,—or after it had reached full completion by the verdict of the nomothetæ. In the former case, the indictment stayed its farther progress until sentence had been pronounced by the dikasts.
This regulation is framed in a thoroughly conservative spirit, to guard the existing laws against being wholly or partially nullified by a new proposition. As, in the procedure of the nomothetæ, whenever any proposition was made for distinctly repealing any existing law, it was thought unsafe to intrust the defence of the law so assailed to the chance of some orator gratuitously undertaking it, and paid advocates were appointed for the purpose; so also, when any citizen made a new positive proposition, sufficient security was not supposed to be afforded by the chance of opponents rising up at the time; and a farther guarantee was provided in the personal responsibility of the mover. That the latter, before he proposed a new decree or a new law, should take care that there was nothing in it inconsistent with existing laws,—or, if there were, that he should first formally bring forward a direct proposition for the repeal of such preëxistent law,—was in no way unreasonable: it imposed upon him an obligation such as he might perfectly well fulfil,—it served as a check upon the use of that right, of free speech and initiative in the public assembly, which belonged to every Athenian without exception,[690] and which was cherished by the democracy as much as it was condemned by oligarchical thinkers,—it was a security to the dikasts, who were called upon to apply the law to particular cases, against the perplexity of having conflicting laws quoted before them, and being obliged in their verdict to set aside either one or the other. In modern European governments, even the most free and constitutional, laws have been both made and applied either by select persons or select assemblies, under an organization so different as to put out of sight the idea of personal responsibility on the proposer of a new law. Moreover, even in such assemblies, private initiative has either not existed at all, or has been of comparatively little effect, in law-making; while in the application of laws when made, there has always been a permanent judicial body exercising an action of its own, more or less independent of the legislature, and generally interpreting away the text of contradictory laws so as to keep up a tolerably consistent course of forensic tradition. But at Athens, the fact that the proposer of a new decree, or of a new law, had induced the senate or the public assembly to pass it, was by no means supposed to cancel his personal responsibility, if the proposition was illegal: he had deceived the senate or the people, in deliberately keeping back from them a fact which he knew, or at least might and ought to have known.
But though a full justification may thus be urged on behalf of the graphê paranomôn, as originally conceived and intended, it will hardly apply to that indictment as applied afterwards in its plenary and abusive latitude. Thus Æschinês indicts Ktesiphon under it for having, under certain circumstances, proposed a crown to Demosthenês. He begins by showing that the proposition was illegal,—for this was the essential foundation of the indictment: he then goes on farther to demonstrate, in a splendid harangue, that Demosthenês was a vile man and a mischievous politician: accordingly, assuming the argument to be just, Ktesiphon had deceived the people in an aggravated way,—first, by proposing a reward under circumstances contrary to law; next, by proposing it in favor of an unworthy man. The first part of the argument only is of the essence of the graphê paranomôn: the second part is in the nature of an abuse growing out of it,—springing from that venom of personal and party enmity which is inseparable, in a greater or less degree, from free political action, and which manifested itself with virulence at Athens, though within the limits of legality. That this indictment, as one of the most direct vents for such enmity, was largely applied and abused at Athens, is certain; but though it probably deterred unpractised citizens from originating new propositions, it did not produce the same effect upon those orators who made politics a regular business, and who could therefore both calculate the temper of the people, and reckon upon support from a certain knot of friends. Aristophon, towards the close of his political life, made it a boast that he had been thus indicted and acquitted seventy-five times. Probably, the worst effect which it produced was that of encouraging the vein of personality and bitterness which pervades so large a proportion of Attic oratory, even in its most illustrious manifestations; turning deliberative into judicial eloquence, and interweaving the discussion of a law, or decree, along with a declamatory harangue against the character of its mover. We may at the same time add that the graphê paranomôn was often the most convenient way of getting a law or a psephism repealed, so that it was used even when the annual period had passed over, and when the mover was therefore out of danger,—the indictment being then brought only against the law, or decree, as in the case which forms the subject of the harangue of Demosthenês against Leptinês. If the speaker of this harangue obtained a verdict, he procured at once the repeal of the law, or decree, without proposing any new provision in its place; which he would be required to do,—if not peremptorily, at least by common usage,—if he had carried the law for repeal before the nomothetæ.
The dikasteries provided under the system of Periklês varied in number of members: we never hear of less than two hundred members,—most generally of five hundred,—and sometimes also of one thousand, fifteen hundred, two thousand members, on important trials.[691] Each man received pay from the treasurers, called Kolakretæ, after his day’s business was over, of three oboli, or half a drachm: at least this was the amount paid during the early part of the Peloponnesian war. M. Boëckh supposes that the original pay proposed by Periklês was one obolus, afterwards tripled by Kleon; but his opinion is open to much doubt. It was indispensable to propose a measure of pay sufficient to induce citizens to come, and come frequently, if not regularly: now one obolus seems to have proved afterwards an inadequate temptation even to the ekklesiasts, or citizens who attended the public assembly, who were less frequently wanted, and must have had easier sittings, than the dikasts: much less, therefore, would it be sufficient in the case of the latter. I incline to the belief that the pay originally awarded was three oboli:[692] the rather, as these new institutions seem to have nearly coincided in point of time with the transportation of the confederate treasure from Delos to Athens,—so that the exchequer would then appear abundantly provided. As to the number of dikasts actually present on each day of sitting, or the minimum number requisite to form a sitting, we are very imperfectly informed. Though each of the ten panels or divisions of dikasts included five hundred individuals, seldom probably did all of them attend; but it also seldom happened, probably, that all the ten divisions sat on the same day: there was therefore an opportunity of making up deficiencies in division Α, when its lot was called and when its dikasts did not appear in sufficient numbers, from those who belonged to division Β or Δ, besides the supplementary dikasts who were not comprised in any of the ten divisions: though on all these points we cannot go beyond conjecture. Certain it is, however, that the dikasteries were always numerous, and that none of the dikasts could know in what causes they would be employed, so that it was impossible to tamper with them beforehand.[693]
Such were the great constitutional innovations of Periklês and Ephialtês,—changes full of practical results,—the transformation as well as the complement of that democratical system which Kleisthenês had begun, and to which the tide of Athenian feeling had been gradually mounting up, during the preceding twenty years. The entire force of these changes is generally not perceived, because the popular dikasteries and the nomothetæ are so often represented as institutions of Solon, and as merely supplied with pay by Periklês. This erroneous supposition prevents all clear view of the growth of the Athenian democracy, by throwing back its last elaborations to the period of its early and imperfect start. To strip the magistrates of all their judicial power, except that of imposing a small fine, and the Areopagus of all its jurisdiction, except in cases of homicide,—providing popular, numerous, and salaried dikasts to decide all the judicial business at Athens, as well as to repeal and enact laws; this was the consummation of the Athenian democracy: no serious constitutional alteration—I except the temporary interruptions of the Four Hundred and the Thirty—was afterwards made until the days of Macedonian interference. As Periklês made it, so it remained in the days of Demosthenês,—though with a sensible change in the character, and abatement in the energies, of the people, rich as well as poor.
In appreciating the practical working of these numerous dikasteries at Athens, in comparison with such justice as might have been expected from individual magistrates, we have to consider, first, that personal and pecuniary corruption seems to have been a common vice among the leading men of Athens and Sparta, when acting individually or in boards of a few members, and not uncommon even with the kings of Sparta,—next, that in the Grecian cities generally, as we know even from the oligarchical Xenophon (he particularly excepts Sparta), the rich and great men were not only insubordinate to the magistrates, but made a parade of showing that they cared nothing about them.[694] We know, also, from the same unsuspected source,[695] that while the poorer Athenian citizens who served on ship board were distinguished for the strictest discipline, the hoplites, or middling burghers, who formed the infantry, were less obedient, and the rich citizens who served on horseback the most disobedient of all. To make rich and powerful criminals effectively amenable to justice, has indeed been found so difficult everywhere, until a recent period of history, that we should be surprised if it were otherwise in Greece. When we follow the reckless demeanor of rich men like Kritias, Alkibiadês,[696] and Meidias, even under the full grown democracy of Athens, we may be very sure that their predecessors under the Kleisthenean constitution would have been often too formidable to be punished or kept down by an individual archon of ordinary firmness,[697] even assuming him to be upright and wellintentioned. Now the dikasteries established by Periklês were inaccessible both to corruption and intimidation: their number, their secret suffrage, and the impossibility of knowing beforehand what individuals would sit in any particular cause, prevented both the one and the other. And besides that the magnitude of their number, extravagant, according to our ideas of judicial business, was essential to this tutelary effect,[698] it served farther to render the trial solemn and the verdict imposing on the minds of parties and spectators, as we may see by the fact that, in important causes, the dikastery was doubled or tripled. Nor was it possible, by any other means than numbers,[699] to give dignity to an assembly of citizens, of whom many were poor, some old, and all were despised individually by rich accused persons who were brought before them,—as Aristophanês and Xenophon give us plainly to understand.[700] If we except the strict and peculiar educational discipline of Sparta, these numerous dikasteries afforded the only organ which Grecian politics could devise, for getting redress against powerful criminals, public as well as private, and for obtaining a sincere and uncorrupt verdict.
Taking the general working of the dikasteries, we shall find that they are nothing but jury-trial applied on a scale broad, systematic, unaided, and uncontrolled, beyond all other historical experience, and that they therefore exhibit in exaggerated proportions both the excellences and the defects characteristic of the jury-system, as compared with decision by trained and professional judges. All the encomiums, which it is customary to pronounce upon jury-trial, will be found predicable of the Athenian dikasteries in a still greater degree: all the reproaches, which can be addressed on good ground to the dikasteries, will apply to modern juries also, though in a less degree. Nor is the parallel less just, though the dikasteries, as the most democratical feature of democracy itself, have been usually criticized with marked disfavor,—every censure, or sneer, or joke against them, which can be found in ancient authors, comic as well as serious, being accepted as true almost to the letter; while juries are so popular an institution, that their merits have been over-stated, in England at least, and their defects kept out of sight. The theory of the Athenian dikastery, and the theory of jury-trial, as it has prevailed in England since the revolution of 1688, are one and the same: recourse to a certain number of private citizens, taken by chance, or without possibility of knowing beforehand who they will be, sworn to hear fairly and impartially plaintiff and defendant, accuser and accused, and to find a true verdict, according to their consciences, upon a distinct issue before them. But in Athens this theory was worked out to its natural consequences; while English practice, in this respect as in so many others, is at variance with English theory: the jury, though an ancient and a constant portion of the judicial system, has never been more than a portion,—kept in subordination, trammels, and pupilage, by a powerful crown, and by judges presiding over an artificial system of law. In the English state trials, down to a period not long before the revolution of 1688, any jurors who found a verdict contrary to the dictation of the judge were liable to fine; and at an earlier period, if a second jury on being summoned found an opposite verdict, even to the terrible punishment of attaint.[701] And though, for the last century and a half, the verdict of the jury has been free as to matters of fact, new trials having taken the place of the old attaint, yet the ascendency of the presiding judge over their minds, and his influence over the procedure as the authority on matters of law, has always been such as to overrule the natural play of their feelings and judgment as men and citizens,[702] sometimes to the detriment, much oftener to the benefit—always excepting political trials—of substantial justice. But in Athens, the dikasts judged of the law as well as of the fact: the laws were not numerous, and were couched in few, for the most part familiar, words. To determine how the facts stood, and whether, if the facts were undisputed, the law invoked was properly applicable to them, were parts of the integral question submitted to them, and comprehended in their verdict: moreover, each dikastery construed the law for itself, without being bound to follow the decisions of those which had preceded it, except in so far as such analogy might really influence the convictions of the members. They were free, self-judging persons, unassisted by the schooling, but at the same time untrammelled by the awe-striking ascendency, of a professional judge, obeying the spontaneous inspirations of their own consciences, and recognizing no authority except the laws of the city, with which they were familiar.
Trial by jury, as practised in England since 1688, has been politically most valuable, as a security against the encroachments of an anti-popular executive: partly for this reason, partly for others, not necessary to state here, it has had greater credit as an instrument of judicature generally, and has been supposed to produce much more of what is good in English administration of justice, than really belongs to it. Amidst the unqualified encomiums so frequently bestowed upon the honesty, the unprejudiced rectitude of appreciation, the practical instinct for detecting falsehood and resisting sophistry, in twelve citizens taken by hazard and put into a jury-box,—comparatively little account is taken either of the aids, or of the restrictions, or of the corrections in the shape of new trials, under which they act, or of the artificial forensic medium into which they are plunged for the time of their service: so that the theory of the case presumes them to be more of spontaneous agents, and more analogous to the Athenian dikasts than the practice confirms. Accordingly, when we read these encomiums in modern authors, we shall find that both the direct benefits ascribed to jury-trial in insuring pure and even-handed justice, and still more its indirect benefits in improving and educating the citizens generally, might have been set forth yet more emphatically in a laudatory harangue of Periklês about the Athenian dikasteries. If it be true that an Englishman or an American counts more certainly on an impartial and uncorrupt verdict from a jury of his country, than from a permanent professional judge, much more would this be the feeling of an ordinary Athenian, when he compared the dikasteries with the archon. The juror hears and judges under full persuasion that he himself, individually, stands in need of the same protection or redress invoked by others: so also did the dikast. As to the effects of jury-trial, in diffusing respect to the laws and constitution, in giving to every citizen a personal interest in enforcing the former and maintaining the latter, in imparting a sentiment of dignity to small and poor men, through the discharge of a function exalted as well as useful, in calling forth the patriotic sympathies, and exercising the mental capacities of every individual; all these effects were produced in a still higher degree by the dikasteries at Athens; from their greater frequency, numbers, and spontaneity of mental action, without any professional judge, upon whom they could throw the responsibility of deciding for them.[703]
On the other hand, the imperfections inherent in jury-trial were likewise disclosed in an exaggerated form under the Athenian system. Both juror and dikast represent the average man of the time and of the neighborhood, exempt, indeed, from pecuniary corruption or personal fear, deciding according to what he thinks justice, or to some genuine feeling of equity, mercy, religion, or patriotism, which in reference to the case before him he thinks as good as justice,—but not exempt from sympathies, antipathies, and prejudices, all of which act the more powerfully because there is often no consciousness of their presence, and because they even appear essential to his idea of plain and straight-forward good sense. According as a jury are composed of Catholics or Protestants, Irishmen or Englishmen, tradesmen, farmers, or inhabitants of a frontier on which smuggling prevails, there is apt to prevail among them a corresponding bias: at the time of any great national delusion, such as the Popish Plot,—or of any powerful local excitement, such as that of the Church and King mobs, at Birmingham, in 1791, against Dr. Priestley and the Dissenters,—juries are found to perpetrate what a calmer age recognizes to have been gross injustice. A jury who disapprove of the infliction of capital punishment for a particular crime, will acquit prisoners in spite of the clearest evidence of guilt. It is probable that a delinquent, indicted for any state offence before the dikastery, at Athens,—having only a private accuser to contend against, with equal power of speaking in his own defence, of summoning witnesses, and of procuring friends to speak for him,—would have better chance of a fair trial than he would now have anywhere, except in England and the United States of America; and better than he would have had in England down to the seventeenth century.[704] Juries bring the common feeling as well as the common reason of the public,—or often, indeed, only the separate feeling of particular fractions of the public,—to dictate the application of the law to particular cases: they are a protection against anything worse,—especially against such corruption and servility as are liable to taint permanent official persons, but they cannot possibly reach anything better. Now the dikast trial at Athens effected the same object, and had in it only the same ingredients of error and misdecision, as the English jury: but it had them in stronger dose,[705] without the counteracting authority of a judge, and without the benefit of a procedure such as has now been obtained in England. The feelings of the dikasts counted for more, and their reason for less: not merely because of their greater numbers, which naturally heightened the pitch of feeling in each individual, but also because the addresses of orators or parties formed the prominent part of the procedure, and the depositions of witnesses only a very subordinate part; the dikast,[706] therefore, heard little of the naked facts, the appropriate subjects for his reason,—but he was abundantly supplied with the plausible falsehoods, calumnies, irrelevant statements and suggestions, etc., of the parties, and that too in a manner skilfully adapted to his temper. To keep the facts of the case before the jury, apart from the falsehood and coloring of parties, is the most useful function of the modern judge, whose influence is also considerable as a restraint upon the pleader. The helps to the reason of the dikast were thus materially diminished, while the action upon his feelings, of anger as well as of compassion, was sharpened, as compared with the modern juror.[707] We see, in the remaining productions of the Attic orators, how much there is of plausible deception, departure from the true issue, and appeals to sympathies, antipathies, and prejudices of every kind; addressed to the dikasteries.[708] Of course, such artifices were resorted to by opposite speakers in each particular trial, nor have we any means of knowing to what extent they actually perverted the judgment of the hearers.[709] Probably, the frequent habit of sitting in dikastery, gave them a penetration in detecting sophistry not often possessed by non-professional citizens: nevertheless, it cannot be doubted that, in a considerable proportion of cases, success depended less upon the intrinsic merits of a case, than upon apparent airs of innocence and truth-telling, dexterity of statement, and good general character, in the parties, their witnesses, and the friends who addressed the court on their behalf. The accusatory speeches in Attic oratory, wherein punishment is invoked upon an alleged delinquent, are expressed with a bitterness which is now banished from English criminal judicature, though it was common in the state trials of two centuries ago. Against them may be set the impassioned and emphatic appeals made by defendants and their friends to the commiseration of the dikasts; appeals the more often successful, because they came last, immediately before decision was pronounced. This is true of Rome as well as of Athens.[710]