CHAPTER II.

THE DIKASTS OF GREECE.

The development of the jury may justly be said to measure the march of civilization. "In the early stages of society causes are decided by persons of station and authority, without reference to any supposed special qualification on their part; it is only as civilization advances and laws become more complicated, that the study and application of them assumes the form of a distinct profession."1

Among the Oriental nations, no traces of jury trial are discoverable. With the Jews and Phoenicians (who may be taken as fair representatives) the administration of justice was monopolized by the priests, who were judges both of law and fact,' paying but little deference

1 Best, Ev. § 83, note.

2 "For all manner of [civil] trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbor." Exodus, XXII. 9.

The judges here referred to must not be confounded with Samuel and his fifteen predecessors (among whom Deborah), who under that appellation directed the affairs of Palestine at intervals during the four and a half centuries between the death of Joshua and the reign of Saul. Their office "was rather that of the military dictator, raised on an emergency to the command of the national forces. What his judicial functions could have been, seems very doubtful, as all ordinary cases would fall under the cognizance of the municipal judicatures." Milman, History of the Jews, bk. VI.

For further particulars concerning the judicial system under the Jewish theocracy, see the learned treatise on Mosaisches Recht, by J. D. Michaelis (2d ed. 1785). It appears that judges were generally taken from the tribe of Levi, that their persons were sacrosanct, and that butchers were debarred from the dispensation of justice, "as in England,

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to precedent and deciding each case without much reference to any general principles.

In ancient Egypt, justice was administered by a president and thirty associates, ten being selected by the king from each of the three great cities (Heliopolis, Thebes and Memphis) respectively. The pleadings and proceedings were all in writing, no advocates being admitted, "on the ground that they darkened the administration of the laws," and that by their exclusion "the clever and tricky had no undue advantage over the simple and honest, as they could not avail themselves of rhetorical flourishes and appeals to the passions." Judgment was pronounced by the president placing an image of Truth, suspended from a golden chain round his neck, upon the pleadings of the party in whose favor the court had decided.'

"The essence of the trial by jury is the determination of questions [of fact] arising in actions at law by a select body of persons, who, without holding permanent judi

where the laws likewise secluded butchers from serving on the magistracy of the twelve [i. e., the jury] because the necessary forbearance or compassion for blood or pain may not be expected from them.” (Vol. III. § 164.)

Criminal cases were tried by the elders of the city at its gate. Vide Deut. XXI. 19; Josh. XX. 4; Jerem. XXVI. 10.

Diodorus Siculus, cited in Forsyth's Hortensius (Am. ed. 1882) pp. 15, 16.

Thereon seems to be predicated the notion of Sir Thomas More, in whose ideal republic advocates find no place. "They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws; and therefore they think it is much better that every man should plead his own cause and trust it to the judge." More's Utopia, bk. II. (Alden's ed.) p. 82, where we also read that "they have but few laws, and very much condemn other nations, whose laws, together with the commentaries on them, swell up to so many volumes."

cf. post, note 11.

cial offices, come from among the people for this purpose and, after their work is done, return to them. In Asia we find nothing of this at any time; and nothing of it in history, until the dixáorηprov of Athens.”✦

From this body our jury is said to be derived, according to the view maintained in a treatise published in the 18th century by Dr. Pettingal. Forsyth dismisses it without much ado as an "ingenious" theory; but the American jurist just quoted' appears to regard it with much favor, and it is approvingly cited as authority and summarized by Mr. Will. According to this theory," the origin of the jury must be sought with the ancients, while the accepted rendition of the Greek dixáotai (as of the Roman judices), and the conception annexed to them, viz: "Presidents of courts," are erroneous; for in Athens these functions were performed by the

4 Cooley, Am. Cycl., vol. IX. art. Jury.

The learned author would seem in error, however, when he regards the institution as "regulated if not introduced by Solon." The foundation was indeed laid by him; but the dikasteries were first popularized and made instruments for the conviction of criminals by Kleisthenes, while the credit of extending their functions to disputes between man and man and providing for their permanency by means of a fixed rate of compensation belongs to Pericles. "The building, afterward so spacious and stately, was erected on a Solonian foundation, though it was not itself Solonian." Grote's Greece, pt. II. c. XXXI., cf. id., c. XII.

5 "An enquiry into the use and practice of juries among the Greeks and Romans," (Lond. 1769) by John Pettingal, D. D.

6 Trial by Jury, c. I. note at p. 12.

1 Cooley, supra.

8 Wharton, Law Lex. (5th ed.) p. 516.

This view is sustained by one of the greatest of historical authorities. "The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country." Gibbon, Rome, c. 44.

It is also maintained by Hermann (Pol. Antiq. of Greece), Felton (notes to Arist. Clouds), Liddell and Scott (Gr. Lex.), and other eminent scholars.

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Archons respectively.' Hence whenever “άνδρες dixáσtai” are addressed by the Greek orators, they are to be considered as men whose duty it was, after hearing the witnesses and other evidence, as also the addresses of the advocates," to report their opinion and verdict to the presiding Archon-the term being virtually equivalent to our "gentlemen of the jury."

That the direct influence of the Greek-through the medium of the Roman-on the formation of the British

10 Thus the term 'judges' is applied by Kennedy "to the six junior archons, to avoid the uncouth title of "Thesmothetes.' It does not indeed convey a perfect idea of the official duties which they had to discharge, yet it is by no means inappropriate, seeing that the most important part of them were of a judicial nature." Orations of Dem., II. 48, note 3.

11 There were anciently no lawyers in Greece to argue the case, but the parties to a suit, or their friends, were wont to plead their own cause. "The addresses of orators or parties," Grote tells us, "formed the prominent part of the procedure, and the depositions of witnesses only a very subordinate part.' And the prejudice of the populace against the Sophists was mainly due to the fact, that "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." (Hist. of Greece, c. XLVI.) And again: "The dikast 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"-there being no judge to restrict the evidence, restrain the pleaders, regulate the trial, and instruct the jurors.

"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," to whose members, however, continual practice presumably imparted considerable skill in the detection of fallacies. But frequently, the historian thinks, it cannot be doubted that "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, of the parties, their witnesses, and the friends who addressed the court on their behalf. This is true of Rome as well as of Athens." Ibid.

jury could at best have been extremely slight, will appear when we consider the effect and fate of the Roman dominion over Britain; " but the deductions drawn in reference to the functions and characters of the dikasts are plausible, and will be found fully sustained by the comprehensive description of that institution to be found in Grote's "History of Greece," extracts from which are subjoined-presenting in a terse and masterly manner the essential elements of the Athenian institution," and graphically contrasting its characteristic features with those of the modern tribunal.

For service as dikasts, during the period best known to history, "6000 citizens above thirty years of age were annually selected by lot out of the whole number, 600 from each of the ten tribes: 5000 of these citizens were arranged in ten panels or decuries of 500 each, the remaining 1000 being reserved to fill up vacancies in case of death or absence among the former. The whole 6000 took a prescribed oath, couched in very striking words; after which every man received a ticket inscribed with his own name as well as with a letter designating his decury. Each of these decuries sitting in judicature was called the Heliæa." 14 When

12 Post, chap. V.

13 It should be observed that what is here said of the dikasts, applies to Attica and its dependencies only. Thus in Sparta they appear to have been unknown, judicial and jural functions being merged in the hands of the Gerontes. During the hegemony of Athens, however, suitors were wont to be summoned from all parts of Greece, and compelled to submit to the Athenian jurisdiction and methods of trial. (cf. Forsyth, Hortensius, c. II.)

14 Grote's Greece, pt. II. c. XXXI. The extracts collated below are from c. XLVI.

Heliæa, originally a public place or hall, in which the chief law court sat for the trial of state offenses; then, a name applied the court itself.