Note 708 — Chapter XLVI · CONSTITUTIONAL AND JUDICIAL CHANGES AT ATHENS UNDER PERIKLES.

To a person accustomed to the judicature of modern Europe, conducted throughout all its stages by the instrumentality of professional men,—judges, advocates, attorneys, etc.,—and viewed by the general public as a matter in which no private citizen either could act or ought to act for himself,—nothing is more remarkable in reading the Attic judicial orations, to a certain extent also the Roman, than the entire absence of this professional feeling, and the exhibition of justice both invoked and administered by private citizens exclusively. The nearest analogy to this, which modern justice presents, is to be found in the courts of Requests and other courts for trying causes limited to small sums of property,—too small to be worth the notice of judges and lawyers.

These courts, in spite of their direct and important bearing on the welfare and security of the poorer classes, have received little elucidation. The History of the Birmingham Court of Requests, by Mr. William Hutton,—lately republished by Messrs. Chambers,—forms an exception to this remark, and is full of instruction in respect to the habits, the conduct, and the sufferings of poor persons. It furnishes, besides, the closest approach that I know to the feelings of Athenian dikasts and pleaders, though of course with many important differences. Mr. Hutton was for many years unremitting in his attendance as a commissioner, and took warm interest in the honorable working of the court. His remarks upon the position, the duties, and the difficulties of the commissioners, illustrated by numerous cases given in detail, are extremely interesting, and represent thoughts which must have often suggested themselves to intelligent dikasts at Athens.

“Law and equity (he says, p. 34) often vary. If the commissioners cannot decide against law, they can decide without it. Their oath binds them to proceed according to good conscience (περὶ ὁτοῦ οὔκ εἰσι νόμοι, γνώμῃ τῇ δικαιοτάτῃ, was the oath of the Athenian dikast). A man only needs information to be able to decide.”

A few words from p. 36, about the sources of misjudgment. “Misinformation is another source of evil: both parties equally treat the commissioners with deceit. The only people who can throw light upon the subject will not.

“It is difficult not to be won by the first speaker, if he carries the air of mildness and is master of his tale; or not to be biased in favor of infirmity or infancy. Those who cannot assist themselves, we are much inclined to assist.

“Nothing dissolves like tears. Though they arise from weakness, they are powerful advocates, which instantly disarm, particularly those which the afflicted wish to hide. They come from the heart and will reach it, if the judge has a heart to reach. Distress and pity are inseparable.

“Perhaps there never was a judge, from seventeen to seventy, who could look with indifference upon beauty in distress; if he could, he was unfit to be a judge. He should be a stranger to decision, who is a stranger to compassion. All these matters influence the man, and warp his judgment.”

This is a description, given by a perfectly honest and unprofessional judge, of his own feelings when on the bench. It will be found illustrated by frequent passages in the Attic pleaders, where they address themselves to the feelings here described in the bosom of the dikasts.