CHAPTER LVII (67)

CONSTITUTION

AL AND JUDICIAL CHANGES AT ATHENS UNDER PERICLES.

 

THE period which we have now passed over appears to have been that in which the democratical cast of Athenian public life was first brought into its fullest play and development, as to judicature, legislation, and administration.

The great judicial change was made by the methodical distribution of a large proportion of the citizens into distinct judicial divisions, by the great extension of their direct agency in that department, and by the assignment of a constant pay to every citizen so engaged. It has been already mentioned, that even under the democracy of Kleisthenes, and until the time succeeding the battle of Plataea, large powers still remained vested both in the individual archons and in the senate of Areopagus (which latter was composed exclusively of the past archons after their year of office, sitting in it for life); though the check exercised by the general body of citizens, assembled for law-making in the Ekklesia and for judging in the Heliaea, was at the same time materially increased. We must farther recollect, that the distinction between powers administrative and judicial, so highly valued among the more elaborate governments of modern Europe, since the political speculations of the last century, was in the early history of Athens almost unknown. Like the Roman kings, and the Roman consuls before the appointment of the Praetor, the Athenian archons not only administered, but also exercised jurisdiction, voluntary as well as contentious—decided disputes, inquired into crimes, and inflicted punishment. Of the same mixed nature were the functions of the senate of Areopagus, and even of the annual senate of Five Hundred, the creation of Kleisthenes. The Strategi, too, as well as the archons, had doubtless the double competence, in reference to military, naval, and foreign affairs, of issuing orders and of punishing by their own authority disobedient parties: the imperium of the magistrates, generally, enabled them to enforce their own mandates as well as to decide in cases of doubt whether any private citizen had or had not been guilty of infringement. Nor was there any appeal from these magisterial judgments: though the magistrates were subject, under the Kleisthenian constitution, to personal responsibility for their general behavior, before the people judicially assembled, at the expiration of their year of office—and to the farther animadversion of the Ekklesia (or public deliberative assembly) meeting periodically during the course of that year; in some of which assemblies, the question might formally be raised for deposing any magistrate even before his year was expired. Still, in spite of such partial checks, the accumulation, in the same hand, of powers to administer, judge, punish, and decide civil disputes, without any other canon than the few laws then existing, and without any appeal—must have been painfully felt, and must have often led to corrupt, arbitrary, and oppressive dealing. And if this be true of individual magistrates, exposed to annual accountability, it is not likely to have been less true of the senate of Areopagus, which, acting collectively, could hardly be rendered accountable, and in which the members sat for life.

I have already mentioned that shortly after the return of the expatriated Athenians from Salamis, Aristeides had been impelled by the strong democratical sentiment which he found among his country-men to propose the abolition of all pecuniary qualification for magistracies, so as to render every citizen legally eligible. This innovation, however, was chiefly valuable as a victory and as an index of the predominant sentiment. Notwithstanding the enlarged promise of eligibility, little change probably took place in the fact, and rich men were still most commonly chosen. Hence the magistrates, possessing the large powers administrative and judicial above described —and still more the senate of Areopagus, which sat for life—still belonging almost entirely to the wealthier class, remained animated more or less with the same oligarchical interests and sympathies, which manifested themselves in the abuse of authority. At the same time the democratical sentiment among the mass of Athenians went on steadily increasing from the time of Aristeides to that of Pericles: Athens became more and more maritime, the population of Peiraeus augmented in number as well as in importance, and the spirit even of the poorest citizen was stimulated by that collective aggrandizement of his city to which he himself individually contributed. Before twenty years had elapsed, reckoning from the battle of Plataea, this new fervor of democratical sentiment made itself felt in the political contests of Athens, and found able champions in Pericles and Ephialtes, rivals of what may be called the conservative party headed by Cimon.

We have no positive information that it was Pericles who introduced the lot, in place of election, for the choice of archons and various other magistrates. But the change must have been introduced nearly at this time, and with a view of equalizing the chances of office to every candidate, poor as well as rich, who chose to give in his name and who fulfilled certain personal and family conditions ascertained in the dokimasy or preliminary examination. But it was certainly to Pericles and Ephialtes that Athens owed the elaborate constitution of her popular Dikasteries or Jury-courts regularly paid, which exercised so important an influence upon the character of the citizens. These two eminent men deprived both the magistrates, and the senate of Areopagus, of all the judicial and penal competence which they had hitherto possessed, save and except the power of imposing a small fine. This judicial power, civil as well as criminal, was transferred to numerous dikasts, or panels of jurors selected from the citizens; 6,000 of whom were annualty drawn by lot, sworn, and then distributed into ten panels of 500 each; the remainder forming a supplement in case of vacancies. The magistrate, instead of deciding causes or inflicting punishment by his own authority, was now constrained to impanel a jury—that is, to submit each particular case, which might call for a penalty greater than the small fine to which he was competent, to the judgment of one or other among these numerous popular dikasteries. Which of the ten he should take was determined by lot, so that no one knew beforehand what dikastery would try any particular cause. The magistrate himself presided over it during the trial and submitted to it the question at issue, together with the results of his own preliminaiy examination; after which came the speeches of accuser and accused,with the statements of their witnesses. So also the civil judicature, which had before been exercised in controversies between man and man by the archons, was withdrawn from them and transferred to these dikasteries under the presidence of an archon. It is to be remarked that the system of reference to arbitration, for private causes, was extensively applied at Athens. A certain number of public arbitrators were annually appointed, to one of whom (or to some other citizen adopted by mutual consent of the parties), all private disputes were submitted in the first instance. If dissatisfied with the decision, either party might afterward carry the matter before the dikastery; but it appears that in many cases the decision of the arbitrator was acquiesced in without this ultimate resort.

I do not here mean to affirm that there never was any trial by the people before the time of Perikles and Ephialtes. I doubt not that before their time the numerous judicial assembly, called Heliaea, pronounced upon charges against accountable magistrates as well as upon various other accusations of public importance; and perhaps in some cases separate bodies of them may have been drawn by lot for particular trials. But it is not the less true that the systematic distribution and constant employment of the numerous dikasts of Athens cannot have begun before the age of these two statesmen, since it was only then that the practice of paying them began. For so large a sacrifice of time on the part of poor men, wherein M. Boeckh states (in somewhat exaggerated language) that “nearly one-third of the citizens sat as judges every day,” cannot be conceived without an assured remuneration. From and after the time of Perikles, these dikasteries were the exclusive assemblies for trial of all causes civil as well as criminal, with some special exceptions, such as cases of homicide and a few others: but before his time, the greater number of such causes had been adjudged either by individual magistrates or by the senate of Areopagus. We may therefore conceive how great and important was the revolution wrought by that statesman, when he first organized these dikastic assemblies into systematic action, and transferred to them nearly all the judicial power which had before been exercised by magistrates and senate. The position and influence of these latter became radically altered. The most commanding functions of the archon were abrogated, so that he retained only the power of receiving complaints, inquiring into them, exercising some small preliminary interference with the parties for the furtherance of the cause or accusation, fixing the day for trial, and presiding over the dikastic assembly by whom peremptory verdict was pronounced. His administrative functions remained unaltered, but his powers, inquisitorial and determining, as a judge, passed away.

In reference to the senate of Areopagus, also, the changes introduced were not less considerable. That senate, anterior to the democracy in point of date, and standing alone in the enjoyment of a life tenure, appears to have exercised an undefined and extensive control which long continuance had gradually consecrated. It was invested with a kind of religious respect, and believed to possess mysterious traditions emanating from a divine source. Especially, the cognizance which it took of intentional homicide was a part of old Attic religion not less than of judicature. Though put in the background for a time after the expulsion of the Peisistratids, it had gradually recovered itself when recruited by the new archons under the Kleisthenian constitution; and during the calamitous sufferings of the Persian invasion, its forwardness and patriotism had been so highly appreciated as to procure for it an increased sphere of ascendency. Trials for homicide were only a small part of its attributions.

It exercised judicial’competence in many other cases besides: and what was of still greater moment, it maintained a sort of censorial police over the lives and habits of the citizens—it professed to enforce a tutelary and paternal discipline beyond that which the strict letter of the law could mark out, over the indolent, the prodigal, the undutiful, and the deserters from old rite and custom. To crown all, the senate of Areopagus also exercised a supervision over the public assembly, taking care that none of the proceedings of those meetings should be such as to infringe the established laws of the country. These were powers immense as well as undefined, not derived from any formal grant of the people, but having their source in immemorial antiquity and sustained by general awe and reverence. When we read the serious expressions of this sentiment in the mouths of the later orators—Demosthenes, Aechines, or Deinarchus—we shall comprehend how strong it must have been a century and a half before them, at the period of the Persian invasion. Isokrates, in his discourse usually called Areopagiticus, written a century and a quarter after that invasion, draws a picture of what the senate of Areopagus had been while its competence was yet undiminished, and ascribes to it a power of interference little short of paternal despotism, which he asserts to have been most sanitary and improving in its effect. That the picture of this rhetoric is inaccurate—and to a great degree indeed ideal, insinuating his own recommendations under the color of past realities—is sufficiently obvious. But it enables us to presume generally the extensive regulating power of the senate of Areopagus, in affairs both public and private, at the time which we are now describing.

Such powers were pretty sure to be abused. When we learn that the Spartan senate was lamentably open to bribery, we can hardly presume much better of the life-sitting elders at Athens. But even if their powers had been guided by all that beneficence of intention which Isokrates affirms, they were in their nature such as could only be exercised over a passive and stationary people: while the course of events at Athens, at that time peculiarly, presented conditions altogether the reverse. During the pressure of the Persian invasion, indeed, the senate of Areopagus had been armed with more than ordinary authority, which it had employed so creditably as to strengthen its influence and tighten its supervision during the period immediately following. But that same trial had also called forth in the general body of the citizens a fresh burst of democratical sentiment, and an augmented consciousness of force, both individual and national. Here then were two forces, not only distinct but opposite and conflicting, both put into increased action at the same time. Nor was this all: a novel cast was just then given to Athenian life and public habits by many different circumstances—the enlargement of the city, the creation of the fortified port and new town of Peiraeus, the introduction of an increased nautical population, the active duty of Athens as head of the Delian confederacy, etc. All these circumstances tended to open new veins of hope and feeling, and new lines of action, in the Athenians between 480-460 B.C., and by consequence to render the interference of the senate of Areopagus, essentially old-fashioned and conservative as it was, more and more difficult. But at the time when prudence would have counseled that it should have been relaxed or modified, the senate appear to have rendered it stricter, or at least to have tried to do so; which could not fail to raise against them a considerable body of enemies. Not merely the democratical innovators, but also the representatives of the new interests generally at Athens, became opposed to the senate as an organ of vexatious repression, employed for oligarchical purposes.

From the character of the senate of Areopagus and the ancient reverence with which it was surrounded, it served naturally as a center of action to the oligarchial or conservative party; that party which desired to preserve the Kleisthenean constitution unaltered—with undiminished authority, administrative as weii as judicial, both to individual magistrates and to the collective Areopagus. Of this sentiment, at the time of which we are now speaking, Cimon was the most conspicuous leader. His brilliant victories at the Eurymedon, as well as his exploits in other warlike enterprises, doubtless strengthened very much his political influence at home. The same party also probably included the large majority of rich and old families at Athens; who, so long as the magistrates were elected and not chosen by lot, usually got themselves chosen, and had every interest in keeping the power of such offices as high as they could. Moreover the party was farther strengthened by the pronounced support of Sparta, imparted chiefly through Cimon, proxenus of Sparta at Athens. Of course such aid could only have been indirect, yet it appears to have been of no inconsiderable moment—for when we consider that Aegina had been in ancient feud with Athens, and Corinth in a temper more hostile than friendly, the good feeling of the Lacedaemonians might well appear to Athenian citizens eminently desirable to preserve: and the philo-Laconian character of the leading men at Athens contributed to disarm the jealousy of Sparta during that critical period while the Athenian maritime ascendency was in progress.

The political opposition between Pericles and Cimon was hereditary, since Xanthippus the father of the former had been the accuser of Miltiades, the father of the latter. Both were of the first families in the city, and this, combined with the military talents of Cimon and the great statesmanlike superiority of Pericles, placed both the one and the other at the head of the two political parties which divided Athens. Pericles must have begun his political career very young, since he maintained a position first of great influence, and afterward of unparalleled moral and political ascendency, for the long period of forty years, against distinguished rivals, bitter assailants, and unscrupulous libelers (about 467-428 BC). His public life began about the time when Themistocles was ostracized, and when Aristeides was passing off the stage, and he soon displayed a character which combined the pecuniary probity of the one with the resource and large views of the other; superadding to both, a discretion and mastery of temper never disturbed—an excellent musical and lettered education received from Pythokleides—an eloquence such as no one before had either heard or conceived—and the best philosophy which the age afforded. His military duties as a youthful citizen were faithfully and strenuously performed, but he was timid in liis first political approaches to the people—a fact perfectly in unison with the caution of his temperament, but which some of his biographers explained by saying that he was afraid of being ostracized, and that his countenance resembled that of the despot Peisistratus. We may be pretty sure, however, that this personal resemblance (like the wonderful dream ascribed to his mother when pregnant of him) was an after-thought of enemies when his ascendency was already established—and that young beginners were in little danger of ostracism. The complexion of political parties in Athens had greatly changed since the days of Themistocles and Aristeides. For the Cleisthenean constitution, though enlarged by the latter after the return from Salamis to the extent of making all citizens without exception eligible for magistracy, had become unpopular with the poorer citizens and to the keener democraticai feeling which now ran through Athens and Peiraeus.

It was to this democratical party—the party of movement against that of resistance, or of reformers against conservatives, if we are to employ modern phraseology—that Pericles devoted his great rank, character, and abilities. From the low arts, which it is common to ascribe to one who espouses the political interests of the poor against the rich, he was remarkably exempt. He was indefatigable in his attention to public business, but he went little into society, and disregarded almost to excess the airs of popularity. His eloquence was irresistibly impressive; yet he was by no means prodigal of it, taking care to reserve himself, like the Salaminian trireme, for solemn occasions, and preferring for the most part to employ the agency of friends and partisans. Moreover he imbibed from his friend and teacher Anaxagoras a tinge of physical philosophy which greatly strengthened his mind and armed him against many of the reigning superstitions—but which at the same time tended to rob him of the sympathy of the vulgar, rich as well as poor. The arts of demagogy were in fact much more cultivated by the oligarchic Cimon, whose open-hearted familiarity of manner was extolled, by his personal friend the poet Ion, in contrast with the reserved and stately demeanor of his rival Pericles. Cimon employed the rich plunder, procured by his maritime expeditions, in public decorations as well as in largesses to the poorer citizens; throwing open his fields and fruits to all the inhabitants of his deme, and causing himself to be attended in public by well-dressed slaves, directed to tender their warm tunics in exchange for the threadbare garments of those who seemed in want. But the property of Pericles was administered with a strict though benevolent economy, by his ancient steward Evangelus—the produce of his lands being all sold, and the consumption of his house supplied by purchase in the market. It was by such regularity that his perfect and manifest independence of all pecuniary seduction was sustained. In taste, in talent, and in character, Cimon was the very opposite of Pericles: a brave and efficient commander, a lavish distributor, a man of convivial and amorous habits—but incapable of sustained attention to business, untaught in music or letters, and endued with Laconian aversion to rhetoric and philosophy; while the ascendency of Pericles was founded on his admirable combination of civil qualities—probity, firmness, diligence, judgment, eloquence, and power of guiding partisans. As a military commander, though no way deficient in personal courage, he rarely courted distinction and was principally famous for his care of the lives of the citizens, discountenancing all rash or distant enterprises. His private habits were sober and recluse his chief conversation was with Anaxagoras, Protagoras, Zeno, the musician Damon, and other philosophers—while the tenderest domestic attachment bound him to the engaging and cultivated Aspasia.

Such were the two men who stood forward at this time as most conspicuous in Athenian party-contest—the expanding democracy against the stationary democracy of the past generation, which now passed by the name of oligarchy—the ambitious and talkative energy, spread even among the poor population, which was now forming more and more the characteristic of Athens, against the unlettered and uninquiring valor of the conquerors of Marathon. Ephialtes, son of Sophonides, was at this time the leading auxiliary, seemingly indeed the equal of Pericles, and no way inferior to him in personal probity, though he was a poor man. As to aggressive political warfare, he was even more active than Pericles, who appears throughout his long public life to have manifested but little bitterness against political enemies. Unfortunately our scanty knowledge of the history of Athens brings before us only some general causes and a few marked facts. The details and the particular persons concerned are not within our sight: yet the actual course of political events depends everywhere mainly upon these details, as well as upon the general causes. Before Ephialtes advanced his main proposition for abridging the competence of the senate of Areopagus, he appears to have been strenuous in repressing the practical abuse of magisterial authority, by accusations brought against the magistrates at the period of their regular accountability. After repeated efforts to check the practical abuse of these magisterial powers, Ephialtes and Perikles were at last conducted to the proposition of cutting them down permanently, and introducing an altered system.

We are not surprised to find that such proceedings provoked extreme bitterness of party feeling. It is probable that this temper may have partly dictated the accusation preferred against Cimon (about 463 B.C.) after the surrender of Thasos, for alleged reception of bribes from the Macedonian prince Alexander—an accusation of which he was acquitted. At this time the oligarchical or Cimonian party was decidedly the most powerful : and when the question was proposed for sending troops to aid the Lacedaemonians in reducing the revolted Helots on Ithome, Cimon carried the people along with him to comply, by an appeal to their generous feelings, in spite of the strenuous opposition of Ephialtes. But when Cimon and the Athenian hoplites returned home, having been dismissed by Sparta under, circumstances of insulting suspicion (as has been mentioned in the preceding chapter), the indignation of the citizens was extreme. They renounced their alliance with Sparta, and entered into amity with Argos. Of course the influence of Cimon, and the position of the oligarchical party, was materially changed by thie incident. And in the existing bitterness of political parties it is not surprising that his opponents should take the opportunity for proposing soon afterward a vote of ostracism—a challenge, indeed, which may perhaps have been accepted not unwillingly by Cimon and his party, since they might still fancy themselves the strongest, and suppose that the sentence of banishment would fall upon Ephialtes or Pericles. However, the vote ended in'the expulsion of Kimon, a sure proof that his opponents were now in the ascendant. On this occasion, as on the preceding, we see the ostracism invoked to ndeet a period of intense political conflict, the violence of which it would at least abate, by removing for the time one of the contending leaders.

It was now that Pericles and Ephialtes carried their important scheme of judicial reform. The senate of Areopagus was deprived of its discretionary censorial power, as well as of all its judicial competence, except that which related to homicide. The individual magistrates, as well as the senate of Five Hundred, were also stripped of their judicial attributes (except the power of imposing a small fine), which were transferred to the newly-created panels of salaried dikasts, lotted off in ten divisions from the aggregate Heliaea. Ephialtes first brought down the laws of Solon from the acropolis to the neighborhood of the market-place, where the dikasteries sat—a visible proof that the judicature was now popularized.

In the representations of many authors, the full bearing of this great constitutional change is very inadequately conceived. What we are commonly told is that Pericles was the first to assign a salary to these numerous dikasteries at Athens. He bribed the people with the public money (says Plutarch), in order to make head against Cimon, who bribed them out of his own private purse as if the pay were the main feature in the case, and as if all which Pericles did was to make himself popular by paying the dilkasts for judicial service which they had before rendered gratuitously. The truth is that this numerous army of dikasts, distributed into ten regiments, and summoned to act systematically throughout the year, was now for the first time organized; the commencement of their pay is also the commencement of their regular judicial action. What Pericles really effected was to sever for the first time from the administrative competence of the magistrates that judicial authority which had originally gone along with it. The great men who had been accustomed to hold these offices were lowered both in influence and authority: while on the other hand a new life, habit, and sense of power sprung up among the poorer citizens. A plaintiff having cause of civil action, or an accuser invoking punishment against citizens guilty of injury either to himself or to the state, had still to address liimseif to one or other of the archons, but it was only with a view of ultimately arriving before the dikastery by whom the cause was to be tried. While the magistrates acting individually were thus restricted to simple administration and preliminary police, they experienced a still more serious loss of power in their capacity of members of the Areopagus, after the year of archonship was expired. Instead of their previous unmeasured range of supervision and interference, they were now deprived of all judicial sanction beyond that small power of fining which was still left both to individual magistrates and to the senate of Five Hundred. But the cognizance of homicide was still expressly reserved to them—for the procedure, in this latter case religious not less than judicial, was so thoroughly consecrated by ancient feeling, that no reformer could venture to disturb or remove it.

It was upon this same ground probably that the stationary party defended all the prerogatives of the senate of Areopagus—denouncing the curtailments proposed by Ephialtes as impious and guilty innovations. How extreme their resentment became, when these reforms were carried—and how fierce was the collision of political parties at this moment—we may judge by the result. The enemies of Ephialtes caused him to be privately assassinated, by the hand of a Boeotian of Tanagra named Aristodikus. Such a crime—rare in the political annals of Athens, for we come to no known instance of it afterward until the oligarchy of the Four Hundred in 411 B.C.—marks at once the gravity of the change now introduced, the fierceness of the opposition offered, and the unscrupulous character of the conservative party. Cimon was in exile and had no share in the deed. Doubtless the assassination of Ephialtes produced an effect unfavorable in every way to the party who procured it. The popular party in tlieir resentment must have become still more attached to the judicial reforms just assured to them, while the hands of Pericles, the superior leader left behind and now acting singly, must have been materially strengthened.

It is from this point that the administration of that great man may be said to date: he was now the leading adviser (we might almost say Prime Minister) of the Athenian people. His first years were marked by a series of brilliant successes—already mentioned—the acquisition of Megara as an ally, and the victorious war against Corinth and Aegina. But when he proposed the great and valuable improvement of the Long Walls, thus making one city of Athens and Peiraeus, the same oligarchic party, which had opposed his judicial changes and assassinated Ephialtes, again stood forward in vehement resistance. Finding direct opposition unavailing, they did not scruple to enter into treasonable correspondence with Sparta—invoking the aid of a foreign force for the overthrow of the democracy: so odious had it become in their eyes, since the recent innovations. How serious was the hazard incurred by Athens, near the time of the battle of Tanagra, has been already recounted; together with the rapid and unexpected reconciliation of parties after that battle, principally owing to the generous patriotism of Cimon and his immediate friends. Kimon was restored from ostracism on this occasion before his full time had expired; while the rivalry between him and Perikles henceforward becomes mitigated, or even converted into a compromise, whereby the internal affairs of the city were left to the one, and the conduct of foreign expeditions to the other. The successes of Athens during the ensuiug ten years were more brilliant than ever, and she attained the maximum of her power: which doubtless had a material effect in imparting stability to the democracy, as well as to the administration of Perikles—and enabled both the one and the other to stand the shock of those great public reverses which deprived the Athenians of their dependent landed alliances, during the interval between the defeat of Koroneia and the thirty years’ truce.

Along with the important judicial revolution brought about by Pericles, were introduced other changes belonging to the same scheme and system.

Thus a general power of supervision, both over the magistrates and over the public assembly, was vested in seven magistrates, now named for the first time, called Nomophylakes, or Law-Guardians, and doubtless chauged every year. These Nomophylakes sat alongside of the Proedri or presidents both in the senate and in the public assembly, and were charged with the duty of interposing whenever any step was taken or any proposition made contrary to the existing laws. They were also empowered to constrain the magistrates to act according to law. We do not know whether they possessed the presidency of a dikastery—that is, whether they could themselves cause one of the panels of jurors to be summoned, and put an alleged delinquent on his trial before it, under their presidency—or whether they were restricted to entering a formal protest, laying the alleged illegality before the public assembly. To appoint magistrates, however, invested with this special trust of watching and informing, was not an unimportant step; for it would probably enable Ephialtes to satisfy many objectors who feared to abolish the superintending power of the Areopagus without introducing any substitute. The Nomophylakes were honored with a distinguished place at the public processions and festivals, and were even allowed (like the Archons) to enter the senate of Areopagus after their year of office had expired: but they never acquired any considerable power such as that senate had itself exercised. Their interference must have been greatly superseded by the introduction and increasing application of the Graphe Paranomon, presently to be explained. They are not even noticed in the description of that misguided assembly which condemned the six generals, after the battle of Arginusse, to be tried by a novel process which violated legal form not less than substantial justice. After the expulsion of the Thirty, the senate of Areopagus was again invested with a supervision over magistrates, though without anything like its ancient ascendency.

Another important change, which we may with probability refer to Perikles, is the institution of the Nomothetae. These men were in point of fact dikasts, members of the 6,000 citizens annually sworn in that capacity. But they were not, like the dikasts for trying causes, distributed into panels or regiments known by a particular letter and acting together throughout the entire year: they were lotted off to sit together only on special occasions and as the necessity arose. According to the reform now introduced, the Ekklesia or public assembly, even with the sanction, of the senate of Five Hundred, became incompetent either to pass a new law or to repeal a law already in existence; it could only enact a psephism—that is, properly speaking, a decree applicable only to a particular case; though the word was used at Athens in a very large sense, sometimes comprehending decrees of general as well as permanent application. In reference to laws, a peculiar judicial procedure was established. The Thesmothetae were directed annually to examine the existing laws, noting any contradictions or double laws on the same matter; and in the first prytany (tenth part) of the Attic year, on the eleventh day, an Ekklesia was held, in which the first business was to go through the laws seriatim, and submit them for approval or rejection; first beginning with the laws relating to the senate, next coming to those of more general import, especially such as determined the functions and competence of the magistrates. If any law was condemned by the vote of the public assembly, or if any citizen had a new law to propose, the third assembly of the Prytany was employed, previous to any other business, 111 the appointment of Nomothetae and in the provision of means to pay their salary. Previous notice was required to be given publicly by every citizen who had new propositions of the sort to make, in order that the time necessary for the sitting of the Nomothetae might be measured according to the number of matters to be submitted to their cognizance. Public advocates were farther named to undertake the formal defense of all the laws attacked, and the citizen who proposed to repeal them had to make out his case against this defense, to the satisfaction of the assembled Nomothetae. These latter were taken from the 6,000 sworn dikasts, and were of different numbers according to circumstances: sometimes we hear of them as 500, sometimes as 1000—and we may be certain that the number was always considerable.

The effect of this institution was, to place the making or repealing of laws under the same solemnities and guarantees as the trying of causes or accusations in judicature. We must recollect that the citizens who attended the Ekklesia or public assembly were not sworn like the dikasts; nor had they the same solemnity of procedure, nor the same certainty of hearing both sides of the question set forth, nor the same full preliminary notice. How much the oath sworn was brought to act upon the minds of the dikasts, we may see by the frequent appeals to the the orators, who contrast them with the unsworn public assembly. And there can be no doubt that the Nomothetae afforded much greater security than the public assembly, for a proper decision. That security depended upon the same principle as we see to pervade all the constitutional arrangements of Athens; upon a fraction of the people casually taken, but sufficiently numerous to have the same interest with the whole—not permanent blit delegated for the occasion—assembled under a solemn sanction—and furnished with a full exposition of both sides of the case. The power of passing psephism, or special decrees, still remained with the public assembly, which was doubtless much more liable to be surprised into hasty or inconsiderate decision than either the Dikastery or the Nomothetae—in spite of the necessity of previous authority from the senate of Five Hundred, before any proposition could be submitted to it.

As an additional security both to the public assembly and the Nomo. thetse against being entrapped into decisions contrary to existing law, another remarkable provision has yet to be mentioned—a provision probably introduced by Perikles at the same time as the formalities of law-making by means of specially delegated Nomothetae. This was the Graphe Paranomon—indictment for informality or illegality—which might be brought on certain grounds against the proposer of any law or any psephism, and rendered him liable to punishment by the dikastery. He was required in bringing forward his new measure to take care that it should not be in contradiction with any pre­existing law—or if there were any such contradiction, to give formal notice of it, to propose the repeal of that which existed, and to write up publicly beforehand what his proposition was—in order that there might never be two contradictory laws at the same time in operation, nor any illegal decree passed either by the senate or by the public assembly. If he neglected this precaution, he was liable to piosecution under the Graphe Paranomon, which any Athenian citizen might bring against him before the dikastery, through the intervention and under the presidency of the Thesmothetae.

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 Graphe Paranomon at the time of Demosthenes. 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 1000 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 Nomothetae, if it was a law—or after it had reached full completion by the verdict of the Nomothetao. In the former case the indictment staid 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 Nomothetse, whenever any proposition was made for distinctly repealing any existing law, it was thought unsafe to intrust the defense of the law so assailed to the chance of some orator gratuitously undertaking it. 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. Accordingly 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 pre-existing law—was in no way unreasonable. It imposed upon him an obligation such as he might perfectly well fulfill. 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, 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 0r 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 law 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 Graphe Paranomon as originally conceived and intended, it will hardly apply to that indictment as applied afterward in its plenary and abusive latitude. Thus Aeschines indicts Ctesiphon under it for having under certain circumstances proposed a crown to Demosthenes. He begins by showing that the proposition was illegal—for this was the essential foundation of the indictment: he then goes on further to demonstrate, in a splendid harangue, that Demosthenes was a vile man and a mischievous politician: accordingly (assuming the argument to be just) Ctesiphon 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 Graphe Paranomon: 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 unpracticed 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, toward 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 Graphe Paranomon 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 Demosthenes against Leptines. If the speaker of this harangue obtained a verdict, he procured at once the repeal of the law or decree, without proposmg 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 Nomothetae.

The dikasteries provided under the system of Pericles varied in number of members: we never hear of less than 200 members—most generally of 500—and sometimes also of 1000, 1500, 2,000 members on important trials. Each man received pay from the treasurers called Kolakretae, after his day’s business was over, of three oboli or half a drachma: at least this was the amount paid during the early part of the Peloponnesian war. M. Boeckh supposes that the original pay proposed by Pericles was one obolus, afterward tripled by Cleon; 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 atterward 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: 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 500 individuals seldom probably did all of them attend. But it also seldom happened probably, that all the ten divisions sat 0n the same day: there was therefore an opportunity of making up deficiencies in division A— when its lot was called and when its dikasts did not appear in sufficient numbers-from those who belonged to division B or D, besictes 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.

Such were the great constitutional innovations of Perikles and Ephialtes,—changes full of practical results—the transformation as well as the complement, of that democratical system which Cleisthenes 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 dikssteries and the Nomothetae are so often represented as institution of Solon, and as merely supplied with pay by Pericles. 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 aud 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 afterward made until the days of Macedonian interference. As Pericles made it, so it remained in the days of Demosthenes—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. We know also from the same unsuspected source, that while the poorer Athenian citizens who served on ship­board 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, Alcibiades, and Meidias, even under the full-grown democracy of Athens, we may be sure that their predecessors under the Cleisthenean constitution would have been often too formidable to be punished or kept down by an individual archon of ordinary firmness, even assuming him to be upright and well-intentioned. Now the dikasteries established by Pericles 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—it aerved 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 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 Aristophanes and Xenophon give us plainly to understand. 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. Such parallel is not less just, though the dikasteries, as the most democratical feature of democracy itself, have been usually criticised 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 overstated (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 1088, 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. 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—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 untrammeled 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 practiced 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 Perikles about the Athenian dikasteries. If it be true that an Englishman or an American counts more certainly on an impartial and uneorrupt 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.

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 straightforward good sense. According as a jury is 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 offense before the dikastery at Athens, —having only a private accuser to contend against, with equal power of speaking in his own defense, 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. 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 or 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, without the counteracting authority of a judge, aud 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, 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 skillfully 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. 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. Of course, such artifices were resorted to by opposite speakers in each particular trial. We have no means of knowing to what extent they actually perverted the judgment of the hearers. 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 dikast; appeals the more often successful, because they came last, immediately before decision was pronounced. This is true of Rome as well as of Athens.

As an organ for judicial purposes, the Athenian dikasteries were thus a simple and plenary manifestation of jury-trial, with its inherent excellences and defects both brought out in exaggerated relief. They insured a decision at once uncorrupt, public-minded, and imposing—together with the best security which the case admitted against illegal violences on the part of the rich and great. Their extreme publicity—as well as their simple and oral procedure, divested of that verbal and ceremonial technicality which marked the law of Rome even at its outset—was no small benefit. And as the verdicts of the dikasts, even when wrong, depended upon causes of misjudgment common to them with the general body of the citizens, so they never appeared to pronounce unjustly, nor lost the confidence of their fellow-citizens generally. But whatever may have been their defects as judicial instruments, as a stimulus both to thought and speech, their efficacy was unparalleled, in the circumstances of Athenian society. Doubtless they would not have produced the same effect if established at Thebes or Argos. The susceptibilities of the Athenian mind, as well as the previous practice and expansive tendencies of democratical citizenship, were also essential conditions—and that genuine taste for sitting in judgment and hearing both sides fairly, which, however Aristophanes may caricature and deride it, was alike honorable and useful to the people. The first establishment of the dikasteries is nearly coincident with the great improvement of Attic tragedy in passing from Aeschylus to Sophokles. The same development of the national genius, now preparing splendid manifestations both in tragic and comic poetry, was called with redoubled force into the path of oratory, by the new judicial system. A certain power of speech now became necessary, not merely for those who intended to take a prominent part in politics, but also for private citizens to vindicate their rights or repel accusations, in a court of justice. It was an accomplishment of the greatest practical utility, even apart from ambitious purposes; hardly less so than the use of arms or the practice of the gymnasium. Accordingly, the teachers of grammar and rhetoric, and the composers of written speeches to be delivered by others, now began to multiply and to acquire an unprecedented importance—as well at Athens as under the contemporary democracy of Syracuse, in which also some form of popular judicature was established. Style and speech began to be reduced to a system, and so communicated; not always happily, for several of the early rhetors adopted an artificial, ornate, and conceited manner, from which Attic good taste afterward liberated itself. But the very character of a teacher of rhetoric as an art—a man giving precepts and putting himself forward in show-lectures as a model for others, is a feature first belonging to the Periklean age, and indicates a new demand in the minds of the citizens.

We begin to hear, in the generation now growing up, of the rhetor and the sophist, as persons of influence and celebrity. These two names denoted persons of similar moral and intellectual endowments, or often indeed the same person, considered in different points of view; either as professing to improve the moral character—or as communicating power and facility of expression—or as suggesting premi ses for persuasion, illustrations on the common-places of morals and politics, argumentative abundance on matters of ordinary experience, dialectical subtlety in confuting an opponent, etc. Antipho of the deme Rhamnus in Attica, Thrasymachus of Chalcedon, Tisias of Syracuse, Gorgias of Leontini, Protagoras of Abdera, Prodikus of Keos, Theodoras of Byzantium, Hippias of Elea, Zeno of Elea, were among the first who distinguished themselves in these departments of teaching. Antipho was the author of the earliest composed speech really spoken in a dikastery and preserved down to the later critics. These men were mostly not citizens of Athens, though many of them belonged to towns comprehended in the Athenian empire, at a time when important judicial causes belonging to these towns were often carried up to be tried at Athens—while all of them looked to that city as a central point of action and distinction. The term Sophist, which Herodotus applies with sincere respect to men of distinguished wisdom such as Solon, Anacharsis, Pythagoras, etc., now came to be applied to these teachers of virtue, rhetoric, conversation, and disputation; many of whom professed acquaintance with the whole circle of human science, physical as well as moral (then narrow enough), so far as was necessary to talk about any portion of it plausibly and effectively, and to answer any question which might be proposed to them. Though they passed from one Grecian town to another, partly in the capacity of envoys from their fellow-citizens, partly as exhibiting their talents to numerous hearers, with much renown and large gain—they appear to have been viewed with jealousy and dislike by a large portion of the public. For at a time when every citizen pleaded his own cause before the dikastery, they imparted, to those who were rich enough to purchase it, a peculiar skill in the common weapons, which made them like fencing-masters or professional swordsmen amidst a society of untrained duellists. Moreover Socrates—himself a product of the same age, a disputant on the same subjects, and bearing the same name of a Sophist—but despising political and judicial practice, and looking to the production of intellectual stimulus and moral impressions upon his hearers—Socrates—or rather, Plato speaking through the person of Socrates—carried on throughout his life a constant polemical warfare against the sophists and rhetors, in that negative vein in which he was unrivalled. And as the works of these latter have not remained, it is chiefly from the observations of their opponents that we know them; so that they are in a situation such as that in which Socrates himself would have been, if we had been compelled to judge of him only from the Clouds of Aristophanes, or from those unfavorable impressions respecting his character which we know, even from the Apologies of Plato and Xenophon, to have been generally prevalent at Athens.

This is not the opportunity however for tiying to distinguish the good from the evil in the working of the sophists and rhetors. At present it is enough that they were the natural product of the age; supplying those wants, and answering to that stimulus, which arose partly from the deliberations of the Ekklesia, but still more from the contentions before the dikastery—in which latter a far greater number of citizens took active part, with or without their own consent. The public and frequent dikasteries constituted by Pericles opened to the Athenian mind precisely that career of improvement which was best suited to its natural aptitude. They were essential to the development of that demand out of which grew not only Grecian oratory, but also, as secondary products, the speculative moral and political philosophy, and the didactic analysis of rhetoric and grammar, which long survived after Grecian creative genius had passed away. And it was one of the first measures of the oligarchy of Thirty, to forbid, by an express law, any teaching of the art of speaking. Aristophanes derides the Athenians for their love of talk and controversy, as if it had enfeebled their military energy; but in his time most undoubtedly, that reproach was not true—nor did it become true, even in part, until the crushing misfortunes which marked the close of the Peloponnesian war. During the course of that war, restless and energetic action was the characteristic of Athens even in a greater degree than oratory or political discussion, though before the time of Demosthenes a material alteration had taken place.

The establishment of these paid dikasteries at Athens was thus one of the most important and prolific events in all Grecian history. The pay helped to furnish a maintenance for old citizens, past the age of military service. Elderly men were the best persons for such a service, and were preferred for judicial purposes both at Sparta, and as it seems, in heroic Greece. Nevertheless, we need not suppose that all the dikasts were either old or poor, though a considerable proportion of them were so, and though Aristophanes selects these qualities as among the most suitable subjects for his ridicule. Pericles has been often censured for this institution, as if he had been the first to insure pay to dikasts who before served for nothing, and had thus introduced poor citizens into courts previously composed of citizens above poverty. But in the first place, this supposition is not correct in point of fact, inasmuch as there were no such constant dikasteries previously acting without pay, next, if it had been true, the habitual exclusion of the poor citizens would have nullified the popular working of these bodies, and would have prevented them from answering any longer to the reigning sentiment at Athens. Nor could it be deemed unreasonable to assign a regular pay to those who thus rendered regular service. It was indeed an essential item in the whole scheme and purpose, so that the suppression of the pay of itself seems to have suspended the dikasteries, while the oligarchy of Four Hundred was established—and it can only be discussed in that light. As the fact stands, we may suppose that the 6,000 Heliasts who filled the dikasteries were composed of the middling and poorer citizens indiscriminately; though there was nothing to exclude the richer, if they chose to serve.