To us, such expedients seem childish, for the question of the constitutionality of the law, as we say, was confused with its expediency; but, if we assume the state of political development at Athens to be what it was, and the fact that the whole body of the people were legislating and that this whole body could not condemn itself, the expedient seems the only thing possible, if the sins of the people were to be shifted. When a bad law is passed to-day, we still cling to this primal belief that the stupid public is not at fault, that it has been misled or deceived. Aristophanes, in one of his comedies, brought the people on the stage as Demos, where it was led around by the nose, cajoled and flattered and deceived and made a fool of by artful demagogues. No doubt the play was highly applauded by the Athenians, who could not comprehend that the fable was narrated of themselves. The fact taught by the law is that any political society has the laws that it deserves.
There was provided also a council, originally the old Council of the Areopagus, and it was succeeded by Solon’s Council of Five Hundred, who were chosen by lot. This body carried on the administrative business by a division into committees. To this Council was given the duty of preparing the legislation to be proposed before the Assembly, and originally a proper bill coming to the Assembly from the Council was necessary to legislation, but this safeguard was swept away. Certain executive officers, called archons, presided over the Assembly and the courts. One of them, the archon king, was so called because he succeeded to the priestly functions of the ancient kings in respect of religious observances and the domestic relations of husband and wife, guardian and ward, and the estates and wills of deceased persons. In later times, in medieval England, the ecclesiastical courts performed much the same functions as did the archon king’s court at Athens.
Another important feature of the Athenian legal system was Solon’s legislation giving to any citizen the right to take up the cause of any fellow citizen and to help him to obtain justice. This right was one both of accusing and of defending, but it was never expanded into the hiring of a lawyer, for there was no such class in Greece. Every kind of magistrate was compelled to render an account of his service to the assembly and was subject to a suit of some kind brought by any informer or accuser impeaching his action. Even generals of armies or fleets were subject to this kind of attack.
But the most curious production in a legal way of this jealous insistence upon the rights of democracy was the proceeding before the Assembly called ostracism. By a vote of the Assembly any citizen could be banished without a hearing, without a trial. It amounted to a legislative judgment of condemnation of a person accused. It is precisely the vicious and brutal bill of attainder used so long by the English Parliament with melancholy results. In England a legislative proceeding was used to put a political opponent to death when he could not be convicted by the regular processes of a court. Legislators can always be relied upon to have less conscience than judges. The bill of attainder is forbidden by our national constitution and our state constitutions. The Assembly also had a proceeding whereby a charge was brought in the Assembly and a prosecution directed to be made in a popular court, in the general manner of our impeachment, but the proceeding was not confined to public officers. This sort of proceeding was copied by the English and it remains with us as a prosecution of a public officer for high crimes and misdemeanors before a legislative body. Under our institution of a Congress of two chambers, the lower house prefers the accusation against a public officer and its truth is tried by the upper chamber. This is the English impeachment by the Commons, tried by the House of Lords. Each of our states has the same form of prosecution. In Athens any citizen brought an impeachment, and it was authorized in the popular Assembly and the matter tried in one of the town-meeting courts.
Under the English system prevalent in this country, the judge or judges of the court exercise a control over the verdicts of juries in three ways. Preliminarily to the trial the court settles the issues, that is to say, it determines the question that is to be submitted to the jury; next, upon the trial it instructs the jury as to what the law is, bearing upon their deliberations; finally, the court, if it is not satisfied with the verdict of the jury, will set the verdict aside. But at Athens, while there may have been some supervision over the questions to be submitted to the jury through the presiding archon (and as to this matter there is grave doubt), the whole case, matter of law and matter of fact, was submitted to the uncontrolled jury. Even if there had been control, the archon chosen by lot had no special knowledge of the law and was an ordinary uninstructed citizen holding his office but a short term. His supervision would have been of no advantage in any way in settling what was to be tried or in supervising the trial. He was no more than the foreman of the jury. At the trial he had no control over the jury; it made its finding as it pleased and there was no way of revising a palpably erroneous finding. The demos never would have submitted to the spectacle of an official overruling the action of the popular assembly or of any popular court. If the jury decided any suit in accordance with the actual law, it would be an accident. Hence under the Athenian system, according to what is stated above as to justice, there was practically no provision for compelling a court to decide in accordance with law, and as a necessary result there was little, if any, justice; there was no government of laws, no security that a litigant would get his rights as the law defined them. Every case was likely to be decided according to a special rule made for the occasion. There were courts for the districts into which Attica was divided, but the appeals from those courts went to the popular courts at Athens, where the same evil met appeals.
Aristotle deceived himself by the assumption that in any popular gathering like the Athenian legislative assembly or in a popular court like an Athenian dicasterium, the result arrived at would always reflect a higher wisdom than the average wisdom of the members of the assembly or jury. This is a wholly gratuitous assumption. It might be a result of deliberations and discussions of the members among themselves, but in the case of the courts any communication among jurors was forbidden or at least was impossible. The jury simply voted without any deliberation among its members. There was no opportunity for the jurors to discuss the matter and to let the better intelligence among them have its influence.
Aristotle in his writings could not throw any clear light upon the anomalous situation at Athens. He classified justice as being of two kinds: (1) general justice, which is a complex of all the rules of law formulated by the state to be legally obligatory upon all members of the community; and (2) the specific virtue of justice, which consists of all the rules of fairness which should govern relations between all members of the community. No one has ever solved the principle of this classification. Aristotle gives no logical definition of general justice except that it included what we call public law and rights of property and possession. Specific justice he divided into distributive justice, which defines all the rights and duties which are apportioned to one person against or in favor of others, and into what he called corrective justice, which covers all the functions of justice for the enforcement of rights or the redress of wrongs. Perhaps in a hazy way this latter distinction between distributive and corrective justice is the distinction now made between substantive law, which defines actual rights and wrongs, and adjective law, which defines the methods and procedure by which rights are enforced and wrongs redressed by courts.
Another defect in the law was its rigid formalistic character under which the party suing must recover what he sued for, neither more nor less. Proposals were made to change the method of trial so that a verdict of less than the amount sued for could be recovered, but Aristotle argues strenuously against such a proposition, and in a court composed of so many members without any chance for discussion among them, it is difficult to conceive how such a result could be attained.
But even if there had been under the Athenian system any chance for a rule of law or for an adequate tribunal to apply the law, that chance was wholly destroyed by a principle for making up a new law or of avoiding the rule of law, by abrogating the applicable law altogether. Aristotle adds another kind of justice to his absurd classification and division, which he calls fairness or reasonableness. The Greek word is epieikeia, which came later to mean, appropriately