“Law is something more than mere will exerted as an act of power.” Such is the weighty language of the Supreme Court of the United States.1 Hence, when the legal system is so instituted that the legislative body can decide a lawsuit by an edict for a particular case, it is neither legislating nor adjudicating, but is simply exerting arbitrary and uncontrolled power, than which nothing is more contrary to the fundamental basis of justice. But this was not understood at Athens, nor was it understood at Rome during the days of the Roman Republic, nor is it understood to-day by those who talk of free judicial decision, meaning a decision where the judge freely disregards the law, because he thinks that for the particular case he can make a better law.
It is true that Aristotle pointed out from Athenian history the evil of government by edicts, but he did not go far enough to find that his fundamental ideas of the law were, as we shall show, unsound. He was merely dreaming on the subject of a state ruled by law. Cicero, with truer insight, in his Topica stated: “Justice requires that in the same cases there shall be the same laws.” Or, as it has been stated in modern law, “The equal protection of the laws means the protection of equal laws.”2 Rome never truly developed this idea of justice, and of equal laws, until the Republic was no more. In order to insure equal laws it was found, long ages after the Greeks and Romans, that the judicial power must be separately and independently exercised. If a man cannot to-day see that it is in reason impossible to govern a completed transaction by a rule of law invented after the transaction happened, he is not a reasonable human being. Even in trivial matters like a game of cards, the none too intellectual devotees of that pursuit recognize at once the nonsense of inventing a rule to govern a play after the play has been made. To card players it is an axiom that the rule existing when the play was made must govern the play, and that has been the actual demand of justice as to important matters in all the ages since the idea of justice was first comprehended by men. The groping of the ages has been toward an administration of equal laws. It will now be explained why it was that under the Athenian system there never could result a government of laws.
Why it is that different races should receive an inclination in certain directions, we shall probably never have knowledge enough to ascertain. The Hebrew with his genius for speculating upon the righteousness of life inspired by God, the Greek with his genius for speculating on the nature of all the sciences and his passion for a democratic form of government, the Roman with his genius for institutions of government and laws, are instances of certain ingrained racial characteristics for which we find no explanation.
First of races to develop what we call the democratic form was the Athenian. Under Solon’s legislation about 592 B.C., as supplemented by later legislation of 507 B.C., the popular assembly of all the citizens of Athens became the final depositary of all executive, legislative, and judicial power. This government was on its face democratic, but as a matter of fact it was merely a democracy of a ruling class. Athens was ruled by a close body of citizens limited to men of Athenian birth and descent. This body never exceeded thirty thousand and generally did not exceed twenty thousand men. It is likely that an assembly was rarely convened with six thousand. The homogeneity of the citizen body could not be disturbed by the admission of new kinds of citizens. The far greater number of free residents at Athens could never be granted citizenship by any process analogous to our naturalization procedure; they must always remain resident aliens. Yet this class owned by far the larger part of the wealth of Athens. Below the citizens and the free aliens was the still more numerous class of slaves. The resident aliens and the slaves carried on almost all the handicrafts, the manufacturing, the buying and selling, the occupations of a laboring and a middle class. It became a mark of inferiority for an Athenian citizen to engage in most of such occupations, except that in the larger transactions of foreign trade moneyed citizens took a part, as soon as the commercial supremacy of Athens was secured. Plato in his Laws interdicts all commercial occupations to free citizens, and in this he is reflecting more or less current ideas among the Athenians.
The farming people of Attica, who were all citizens, had in process of time so exceeded their means of living that on their primitive inalienable holdings they were practically serfs bound for debts to the wealthy among the citizens, who, by a natural process, were the oligarchs. Even if “money has never cared who owns it,” wealth has always made its holders influential. Solon’s primary step was to cancel by an act of confiscation the indebtedness of the landholding citizens and to render the farming class, temporarily at least, independent of the moneyed class. At the same time land was rendered alienable and each son was emancipated from the father’s patriarchal rule as soon as the son reached the age of eighteen and was enrolled in the military force of the state. Thus was abolished the age-old inalienable Aryan family estate and the patriarchal family, but the fact remained that the father could not disinherit his children. This idea in the law that the father has family property and ought not to disinherit his children is a living power in law to-day.
Another feature of Athenian polity was the confirmation in the assembly of citizens of all the legislative, executive, and judicial power. Solon’s division of the citizens into four classes, according to income, had little, if any, effect upon government. The legislative body was uncontrolled. The courts were in fact popular courts made up of citizens, and the numbers of the judges in them were so large that they were considered as branches of the assembly. Jurors were in fact judges, for these so-called dicasts or jurors made the judgment. Numbers of two hundred, five hundred, a thousand, and for certain matters a much larger number were provided. The jury list to supply the courts to the number of six thousand was made up from the body of the citizens and was constituted anew every year. These jurors came to be paid officers. The dogma of democracy was that each citizen was competent to perform any function of government, and the public officers were selected by lot, except the generals to command the army or the fleet. They were elected by the assembly. By a natural process almost every citizen who needed the money was put upon the public pay-roll. The Greeks were brushed by the wings of representative government, for representative delegates from Greek city-states formed the Amphictyonic League as well as the Delian League of Athens, but the conception of a representative government never produced any result, just as their knowledge of the expansive power of steam never produced a steam motor.
It is a strange thing that Plato could see the folly of selecting for public officials wholly incompetent men, and yet saw nothing absurd in the election of generals or admirals. He has a dialogue where he represents Pericles, the son of the great Pericles, as coming up to Socrates and complaining that the Athenians had just selected as general a man without military or naval training, simply a very successful man of business. Socrates, in the dialogue, begins his process of questioning and shows by Pericles’ own admissions that many of the qualities of a successful business man would be needed in a general; and thereupon the assumption is that the Athenians have made a wise choice. Young Pericles departs apparently much befogged and is seemingly incapable of pointing out the crass fallacy in the reasoning. Such reasoning probably was the cause of the fact that Athenian armies usually but not always fled from the field of battle. In our democracy the process is reversed. A successful general is selected to some high office that he is incapable of filling, and in it he makes himself a spectacle of utter failure as a civil magistrate.
But there was some saving sense among conservative men regarding this power of the popular assembly to change the laws at will. There was a feeling that the laws ought not to be lightly changed. To guard against this evil the old Council of the Areopagus was left with a function of guarding the laws. Later, wardens or guardians of the law were provided. A proceeding was provided for putting a law upon trial with appointed accusers and defenders who argued the question before the assembly. Still later a regular action