jury should decide whether the false evidence had procured the verdict or not, was more probably founded on the practice of his own country.

A new trial may be obtained in England, on the conviction of a material witness for perjury; but our law is perhaps defective in not allowing a civil remedy against the witness; for the criminal conviction may sometimes be too late for the party to get the advantage of a new trial.

Where an Athenian, by a criminal condemnation, had lost the power or the right to commence any proceedings in a court of justice, we may presume the false witness was liable to a public prosecution'.

We have seen that a defendant, who did not appear before the magistrate after being duly summoned by the plaintiff, suffered judgment by default. The summons was proved by witnesses in whose presence it was given, and whose names were usually written on the bill of plaint. If their evidence was false, they were liable to be indicted2, and even to be punished with death, if the prosecutor could induce the jury to be so severe. Upon their conviction the judgment was set aside.

In support of this view Meier cites a passage of Andocides On the Mysteries. The Athenian law, so liberal in allowing all sorts and varieties of prosecutions, was surely expansive enough for this.

2 These witnesses were called Kλŋτηpes, and the indictment γραφη ψευδοκλητείας.

NOTE 17.

OATHS.

WE have seen that an oath was commonly taken by the witness, to give weight to his testimony; and also that a cause, or some of the issues which it involved, might (under certain conditions) be decided by the oath of the party3. Of these two species of oaths there is an important difference in the results. The one may be called a confirmatory, the other an evidentiary oath, for it was a substitute for evidence, or rather it enabled the person who swore it to succeed by means of his own evidence. It is to this that Aristotle alludes, when he speaks of oaths as a method of proof.

The evidentiary oath of the Athenians may well be compared to our old Saxon mode of trial by wager of law; whereby a defendant, in an action of debt or detinue, (that is) when money or goods were sought to be recovered from him, was allowed to acquit himself of the charge by

3 See note 10.

So called, because the defendant put in sureties, vadios.

Documentary evidence is opposed to testimonial. All writings, which contain information, are called documents. If I make a contract verbally, it can only be proved by the mouth of a witness; but if the contract is reduced to writing, there is no need of a witness to prove the terms, when the writing may be produced to speak for itself. And it is more satisfactory to produce the writing, than to trust to the memory of the witness; for, besides the importance of having the terms accurately ascertained, there may be other doubts, which can only be cleared up by inspecting the instrument itself, such as whether the handwriting is genuine, whether there have been any erasures or interpolations. It must always therefore be matter of suspicion, when a man seeks to give oral proof of a writing in his own possession. The non-production of the will by Aphobus gave occasion to severe remarks on the part of Demosthenes, who infers from thence, that the contents of the will were such as his mother told him they were. What his mother said, it would in this country be deemed irregular to repeat; but the discredit thrown upon his opponent's version of the will, and indeed upon his whole case, was a just and fair inference from his conduct. Our legislature has been so deeply impressed with the importance of having the best evidence which the nature of the case affords, that, wherever a document is or may be presumed to be in possession of a party, he is

manifest resemblance between this species of trial, and the canonical purgation of the popish clergy when accused of any capital crime. The defendant or person accused was in both cases to make oath of his own innocence, and to produce a certain number of compurgators who swore they believed his oath. Somewhat similar also to this is the sacramentum decisionis, or the voluntary and decisive oath of the civil law; where one of the parties to the suit, not being able to prove his charge, offers to refer the decision of the cause to the oath of his adversary; which the adversary was bound to accept, or tender the same proposal back again; otherwise the whole was taken as confessed by him."

All this has now become matter of history. Wager of law, which had long been obsolete in practice, was abolished in the reign of the late king.

At Athens not only could the party himself take the decisive oath, but any friend or person to whom the matter in dispute was known, and even women, although they could not appear as witnesses. But it must be remembered, that such an oath could not be taken at all without the consent of the opponent.

When so great an advantage accrued to the party swearing, we might expect that the oath should be solemn in its nature, and one of strong obligation. And so it was. For among the an

were supposed to understand it, and to require no proof. And as the statutes were accessible to every citizen, and many of them exposed to public view, it was easy for any one, who desired, to make himself acquainted with them; though we can hardly believe that many of the jurors had availed themselves of this facility.

As the value of all testimony depends on the veracity of the witness, to insure this, has been an important object in every system of jurisprudence. Various means have been employed, either to preserve the witness from temptation, or to deter him from falsehood, or to guard against the effects of inaccuracy. The principal are-penalties, oaths, torture, cross-examination, which is itself a species of torture, but an effective and humane one-and subordinate to these are certain precautionary rules, by which loose and dangerous evidence is excluded, such as hearsay, and the testimony of interested or infamous persons.

At Athens (as now in England) the parties were incompetent to appear as witnesses. But at Athens each was obliged to answer the questions put by the other, and thus might be forced to give evidence against himself, but could not give evidence for himself except by permission of the opponent.

Interested witnesses were not rejected by the Athenians, but they are by us. The rule, however, applies only to those, who have a direct