to the few persons who enjoyed the privilege, and useless as a measure of public economy, Demosthenes made one of the best of his early speeches (at the age of thirty,) and procured its repeal.

There were however certain classes of persons exempted by the general policy of the law. Thus the nine Archons could not be called upon to command ships, this being incompatible with their other duties. No man was bound to serve two offices in the same year, nor the same for two years together. And orphans were not liable to serve any offices till a year after the expiration of their minority.

NOTE 16.

WITNESSES.

THERE are various kinds of judicial evidence, differing either in their nature, or in the quantity of their probative force, or in the manner and form of their production.

All proof may (according to Aristotle') be defined to be artificial or natural; the former, that which we find or prepare for ourselves; the latter, that which is found for us, without any contrivance on our part. Thus, a witness or a document is unartificial, or natural. We do not create the testimony, nor do we invent the words of the document. But if, by comparing different parts of the testimony, and pointing out their inconsistency, we shew the witness to be unworthy of credit; or if, instead of producing a receipt for rent due at Christmas, we produce a receipt for the following midsummer, and thence infer that the previous

1 Rhetoric ; πιστεις ατεχνοι και εντεχνοι. Our word proof is not coextensive with the IOTIS of Aristotle, which signifies every thing by means of which persuasion is produced. Thus, he gives as an example of the πιστις εντεχνος, the prejudice which a man excites by the manner and style of his address, or by appealing to the passions of the audience.

half year's rent must have been paid, this is artificial proof.

Such a distinction may be as good as any other; but it is not adopted by any of our writers on jurisprudence. Matter of fact, which is proved in a court of justice, we call evidence; proofs invented by the speaker, or inferred by him from matter of fact, are called arguments. Thus, in the above example, the receipt for the midsummer rent is evidence; the inference drawn therefrom, that the rent due at Christmas must have been paid, is an argument.

2

Evidence is direct or circumstantial, affirmative or negative, presumptive or conclusive.

Direct is that which applies itself immediately to the principal fact in question; circumstantial applies itself mediately to the principal fact, and immediately to some fact evidentiary of the principal. Thus, if I say I saw the prisoner inflict the mortal wound on the deceased, this is direct evidence of the murder. But if several witnesses are called, one to prove that the prisoner bought the poison, one that he mixed it in a glass, one that he gave the glass to the deceased to drink, one that the deceased died soon afterwards; all this is circumstantial evidence of the murder.

2 Μαρτυρες and τεκμηρια are sometimes thus distinguished by Demosthenes. Between текμnpia and eiкoтa there is strictly this difference the former are the evidentiary facts; the latter, the results which are obtained by combining such facts together and reasoning upon them.

Circumstantial evidence is in itself weaker than direct; for proof of the evidentiary fact cannot be so convincing as proof of the fact itself; but it often happens, owing to extrinsic causes, it is stronger.

Thus, if I saw the prisoner stab the deceased to the heart, my evidence is stronger to prove the murder, than if I entered the room and saw him standing over the deceased with the bloody knife in his hand. But if various circumstances are proved against the prisoner by different witnesses, as, that he had a quarrel with the deceased, that he had threatened to kill him, that he was in the same room with him a short time before the murder, that he was seen shortly after with marks of blood about his person, and that the knife with which the murder was committed belonged to him; all these circumstances may be more convincing than my direct evidence, not because the circumstances themselves are precisely equivalent to the fact disclosed by me, but because they are better proved, the witnesses being more numerous, and the chances of error or deceit fewer. If three or four persons, instead of one, had witnessed the doing of the deed, this might turn the scale in favour of the direct evidence; and the same would be the result, if my evidence could be deemed perfectly credible in all respects. Confession (the strongest evidence of guilt) may be regarded as the direct testimony of one whom there is the least cause to disbelieve.

Affirmative evidence (as a general rule) is preferable to negative. Demosthenes (in the third speech by me translated) says: "That some one knows something to be in his possession, is material evidence, but that some one does not know it, is no evidence at all." This, which the orator enunciates as an axiom, is an overstatement of the truth. Mere ignorance, unaccompanied with other circumstances, is undoubtedly no evidence at all. If, to prove that something did not take place on a certain day in London, you produce a man, who tells me only, that he was the whole of that day at Coventry and heard nothing about it, my belief in the fact remains pretty much where it was before. But if the negative witness had an opportunity of learning whether the fact was so or not, and if it is probable he would have known if it was so, his evidence is worth something; and, as you increase this probability, in the same proportion you increase the value of his testimony. Thus, if a man declares that he was attacked and robbed on his way home, but the members of his family declare, that he came home the same evening and never spoke a word to them about the matter, I cannot help feeling some doubt as to the truth of his story. Again, suppose two men to have listened to a long sermon. One tells me, the preacher quoted three verses out of Jeremiah ; the other says he did not; I believe the first. One says, the text was from St Paul; the other denies

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