fuch as cafually came into the Court. The latter being only compos'd of Wax, and order'd in such a Manner, as gave the Witness Opportunity to make fuch Alterations in the Matter of his Evidence, as afterwards, upon better Confiderations, appear'd to be neceffary (a). When the Witneffes were fworn, the Plaintiff being plac'd upon the left Hand of the Tribunal, and the Defendant on the Right (6), both of them spoke set Orations in their own Behalf. These were, for the most Part, compos'd by fome of the Orators, which Custom was first introduced by Antiphon, a Rhamnufian (c). Sometimes, if they defir'd it, the Judges granted them Zuvny, or Adyocates, to plead for them, the doing which they call'domu ovrnyoger, to plead for a Fee(d). And left by the Length of their Orations they fhould weary the Judges Patience, and hinder them from proceeding to other Bufinefs, they were limited to a certain Time, call'd Siaueμeten un nμéga(e), which was meafur'd by a Kaifudea, or Hour-glass, differing from ours in this, that, instead of Sand, they made use of Water; and to prevent all Fraud and Deceit, there was an Officer appointed to diftribute the Water equally to both Sides, whom, from his Bufinefs, they call'd Epúfwe, or Epudwe. When the Glass was run out, they were permitted to speak no farther, and therefore we find them very careful, not to lose or mispend one Drop of their Water, and whilft the Laws quoted by them were reciting, or if any other Business happen'd to intervene, they gave Order that the Glafs fhould be stopp'd (ƒ). Yet if any Perfon had made an End of Speaking, before the Time allotted him was expir'd, he was permitted to refign the remaining Part of his Water to any other that had Occafion, and this is meant by the Orator, when he faith, WTI Tậμw αAeTw, let him fpeak till what remains of my Water be run out. When both Parties had made an End of fpeaking, the publick Crier, by the Command of the Magiftrate that prefided in the Court, order'd the Judges to bring in their Verdict; and in fuch Cafes as the Laws had made Provifion, and appointed Penalties for, (which were call'd Ayves ariμno) a fingle Verdict, whereby the Perfon was declar'd guilty, or, not guilty, was fufficient; but in thofe Cafes that the Laws were filent in, (which they call'd Ayres TIμNTOí) a fecond Sentence was requir'd, if the accus'd Perfon was brought in guilty, to determine what Punishment was due to his Offence(g). And here before they proceeded to give Sentence, the condemn'd Perfon was aik'd, what Damage he thought his Adversary had receiv'd from him, and what Recompence he ought in Juftice to make him? And the Plaintiff's Account, which, together with the Indictment he had deliver❜d in before, was taken into Confideration; and then the Circumstances on both Sides being duly weigh'd, the decretory Sentence was given. Sometimes the Judges limited the Punishment in criminal, as well as civil Causes, where the Laws were filent. This happen'd in the Cafe of Socrates, "who, to "apply the Words of Cicero(b), was not only condemn'd by the first Sen (a) Pollux, Harpocration. (b) Ariftotel. Problem. (c) Idem. Rhetor. lib. I. cap. 33. (d) Clemens Alexandrin. (e) Harpocration. (f) Demoftben. (g) Harpocration. (b) De Oratore, lib. I. "tence "tence of the Judges, which determin'd, whether the Criminal should "be condemn'd, or acquitted; but by that also, which the Laws oblig'd 'em to pronounce afterwards. For at Athens, when the Crime "was not capital, the Judges were impower'd to value the Offence: "And it was enquired of the Criminal, to what Value he thought his "Offence amounted. Which Queftion being propos'd to Socrates, "he reply'd, that he had merited very great Honours and Rewards, and "to have a daily Maintenance in the Prytaneum; which the Grecians "accounted one of the highest Honours. By which Answer the Judges were incens'd to fuch a Degree, that they condemn'd that "moft innocent Man to Death. 66 The most ancient Way of giving Sentence, was by black and white Sea-fhells, call'd Xorgiva; or Pebbles, call'd por. Ovid has taken Notice of this Custom, Mos erat antiquis, niveis atrifque Lapillis, H. H. After them, ovunoï, which were Pellets of Brafs, came into Use; which, when laid afide, xvapor, or Beans, fucceeded; they were of two Sorts, White and Black; the White were whole, and were made use of to abfolve; the Black were bor'd through, and were the Inftruments of Condemnation (k). Hence it is, that in Ariftophanes (1), Judges that liv'd upon the Gifts they receiv'd for doing Juftice, are call'd Kvaporg@yes, Eaters of Beans; and λeux ñ is a Proverb not much different from at gavia, or Amalthea capra, being usually apply'd to Things that bring in large Gains, and are a Maintenance to their Masters (m). Thefe Beans the Judges took from the Altar, and two Urns, which they call'd Kado, or Kadiono, being plac'd, they caft in their Beans through a little Tunnel call'd Knuds, holding them only with three Fingers, viz. the Fore-finger, Middle, and Thumb, that it might be impoffible for them to caft in above one at a Time. The rest of their cuftomary Rites are much what the fame with those I have already defcribed in the Judgments of the Court of Areopagus, except that in private Caufes there were four Urns plac'd in the Court, as Sigonius has obferv'd out of Demofthenes (n). But this, perhaps, was occafion'd by the Number of the Perfons concern'd in the Trial; for if there were more than two Competitors that laid Claim to an Eftate, each of them had a distinct Urn, into which those, that pass'd Sentence on his Side, were to caft their Beans, and he that had the greatest Number obtain'd the Victory, which Sigonius feems not to have observed. (i) Metamorph. lib. XV. (k) Pollux, Hefychius, Harpocration, Ariftoph. Schol. Ran, & Vefp. &c. (1) Equit. (m) Hefychius, Euftathius, Iliad. 7. pag. 884. Edit, Bafil, (n) Orat. in Macart. I 4 When When all had given over Voting, left any Man, out of Favour, fhould fufpend his Suffrage, the Crier made Proclamation in this Manner, Εἴ τις αψήφις, ανιςάπω· If there be any that has not given his Voice, let him now arife and give it. Then the Urns were open'd, and the Suffrages number'd in Presence of the Magiftrate, who flood with a Rod in his Hand, which he laid over the Beans as they were number'd, left any Person should, thro' Treachery or Mistake, omit any of them, or count the fame twice. If the Number of the black Beans were greatest, he pronounc'd the Perfon guilty; and, as a Mark to denote his Condemnation, drew a long Line, whence was Tiμav μanpav, in the Comedian, fignifies to condemn all; on the contrary, he drew a fhort Line in Token of Abfolution, if the white Beans exceeded, or only equall'd the Number of the black(0); for fuch was the Clemency of the Athenian Laws, that, when the Cafe feem'd equally disputable on both Sides, the fevere and rigorous Commands of Juftice gave Place to the milder Laws of Mercy and Com❤ paffion; and this Rule feems to have been conftantly observed in alļ the Courts of Athens. Euripides, to omit a great many others, has mention'd this Custom in feveral Places : Ισαι δὲ σ' ἐκσώζεσι μὴ θανεν δίκη That Lots, if equal, fhall the Pris'ner free, And again to the fame Purpose in another Tragedy, Καὶ πρὶν γ' Αρείοις ἐν πάγοις ψήφος ἴσας At Areopagus on your dubious Fate, And there the dooming Sentence muft have pass'd, On this Account fhall After-Ages fave H. H H. H. (0) Ariftophan, ejufque Schol, Ran, & Vefp, (p) Electra v. 1265. (9) Iphigenia Taurica v. 1469. The The Plaintiff was call'd Διώκων; the whole Suit Δίωξις ; and the Defendant Dev. The Indictment, before Conviction, was named Airía; after Conviction Exef and after Condemnation A♪íunμa. All the Time the Caufe was in Sufpenfe, and undetermin'd, it was expofed to publick View, being engraved in a Tablet, together with the Name of the Perfon accused, and hung up at the Statue of the Heroes, firnam'd Eravu, than which there was not a more publick Place in the whole City; this they call'd Exxe(r), and it feems to have been done with a Design that all Perfons, who could give any Information to the Court, having fufficient Notice of the Trial, should come and prefent themselves. If the convicted Perfon was guilty of a capital Crime, he was deli❤ ver'd into the Hands of the Evena, to receive the Punishment due to his Offence: But if a pecuniary Mulet was laid upon him, the Tapia took Care to fee it paid; but in Cafe his Estate was not able to make Payment, they confin'd him to perpetual Imprisonment (/). If, on the contrary, the Plaintiff had accused his Adversary unjustly, and produced falfe Evidence against him, he was in fome Places obliged to undergo the Punishment due by Law to the Crime, of which he had falfly accused an innocent Person; but at Athens had only a Fine laid upon him. And both the Villain that had forsworn himself, and he that fuborn'd him, were feverely profecuted; the former by an Action of Souapruela, the latter of Kanorexia. Of these, and the Punishment due to fuch Offenders, I shall speak farther in another Place. When the Trials were over, the Judges went to Lycus's Temple, where they return'd their Paßdor, Staffs, or Scepters, which were Enfigns of their Office, and receiv'd from certainOfficers, call'd Kwλange,a Piece of Money for their Service, which at the first was only one Obolus, afterwards it was increased to two, then to three, and at length to a Drachm, which was fix Oboli, as we have before obferved from the Scholiaft upon Ariftophanes (t). And tho' these Rewards may feem trifling and inconfiderable Expences, yet the troublesome Temper of the Athenians, and their nice Exaction of every little Duty, or Privilege, occafion'd fo great a Number of Law-fuits, that the frequent Payment of these fmall Sums by Degrees fo exhaufted the Exchequer, that they became a Burden to the Commonwealth,and areparticularly reflected uponby Aristophanes(u),who takes Occafion every-where to ridicule this litigious Humour, which was then grown to fuch a Height, that every Corner of the Streets was pefter'd with Swarms of turbulent Rafcals, that made it their conftant Bufinefs to pick up Stories, and catch at every Occafion to accuse Perfons of Credit and Reputation; these they call'd EuxopdvTau, which Word fometimes fignifies falfe Witnesses, but is more properly taken for what we call common Barretors, being derived an ouna paive, from indicting Perfons that exported Figs; for amongst the primitive Athenians, when the Use of that Fruit was first found out, or in the Time of a Dearth, when all Sorts of Provisions were exceeding scarce, it was enacted, that (7) Demofthen. ejufque Schol. in Median. (f) Demoftben. Androtian. Cornel. Nep. Miltiade. (t) Ran. Vefp. Item Suidas, Pollux, Hefycbius. () Ran. pag. 280. Edit. Emil, Porti, & Scholiaft, ibid. no no Figs fhould be exported out of Attica; and this Law not being actually repeal'd, when a plentiful Harvest had rendered it useless, by taking away its Reason, gave Occafion to ill-natur'd and malicious Men, to accufe all Perfons they caught tranfgreffing the Letter of it; and from them all busy Informers have ever fince been branded with the Name of Sycophants (w). Others will have the Stealing of Figs to have been prohibited by a particular Law, and that thence Informations grew fo numerous, that all vexatious Informers were afterwards term'd Sycophants. CHAP. XXII. of the Τεσσαράκοντα, and Διαιτηταί. I Teoσapánovla, were forty Men, that went their Circuits round the feveral Boroughs, and had Cognizance of all Controverfies about Money, when the Sum exceeded not ten Drachms; alfo, as Demofthenes reports (x), had Actions of Affault and Battery brought to their Hearing. Pollux tells us, that, at their first Institution, they were no more than thirty in Number; but Hefychius reports, the Magiftrates or Judges call'd Of Tednola, were those that amerced the People for absenting themselves from the publick Affemblies. Diurna, or Arbitrators, were of two Sorts. 1. Kangalo, were forty-four Men in each Tribe, above the Age of fixty, as Pollux, or fifty, as Suidas reports, drawn by Lots, to determine Controverfies in their own Tribe about Money, when the Sum was above ten Drachms. Their Sentence was not final, so that, if either of the contefting Parties thought himself injur'd by it, he might appeal to the fuperior Court of Juftice (y). At their firft Inftitution, all Causes whatsoever that exceeded ten Drachms were heard by them, before they could be received into the other Courts (z). They pafs'd Sentence without obliging themselves by any Oath, but in other Things acted in the fame Manner with the reft of the Judges; they received a Drachm of the Plaintiff, which was call'd Παράςασις oι διάςασις, and another of the Defendant when they adminiftred the Oath to him, which was term'd a'lauoría. And in Cafe the Parties did not appear at the appointed Time and Place, they ftaid expecting till the Evening, and then determin'd the Caufe in Favour of the Party there present. Their Office continued a whole Year, at the End of which they gave up their Accounts, and if they were proved to have refused to give Judgment, or to have been corrupted (a), they were punish'd with (Tuía) Infamy. Under them were certain Officers call'd Eiraywyes, whose Business it was, elodyer Tas finas, to receive the Complaints that fell under the Cognizance of the Aanrai, and enter them into their Court (b). (w) Suidas, Ariftoph. Schol. Pluto, Equit. &c. (x) Orat. in Pantænet. (y) De. mofthen. Orat. in Apbobum. (x) Pollux, Ulpian, (a) Demofiben, & Ulpian. Median, Petit. Mifc, lib. VIII. (b) Pollux. 2. Διαλλα |