the main object of a challenge was, to enable the party to draw an inference from the refusal, and so to substitute assertion for evidence. First he asserts a fact, and gets the advantage of making an impression upon the audience; then, instead of proving it, he says in effect this: "I give no proof of my statement, because I have none to give. I should have had proof, if my opponent had produced the will; but he would not produce it, though I requested him so to do; therefore you must presume every thing against him." The force of this argument depends entirely upon the foundation which is laid for it. Thus, the speaker ought to shew, that his opponent has the will; that it relates to the point in issue; and other circumstances of the like nature; such as Demosthenes shews with great force against Aphobus. But if no such foundation is laid, the argument is idle; and yet, idle as it is, it may be mischievous. For where a number of statements are interwoven in an artful speech, some of which are proved, and others not proved, or proved inadequately, it is by no means easy for a jury to separate the wheat from the chaff, even with the assistance of an enlightened judge. Hence the danger of allowing such loose kind of evidence at all.

NOTE 11.

COSTS.

In England costs (as a general rule) follow the verdict, and are paid by the unsuccessful party to the other. But this was not so at Athens. There was no such thing as paying the general costs of the action. Thus, if a man gave a large sum to counsel to write his speech, no part of this ever came into his own pocket again. Fees were not allowed to be taken for speaking in court. And every man was his own attorney, which must have somewhat diminished the expenses.

But there were certain payments in the nature of costs. Thus, in actions for damages, if the plaintiff did not get a fifth of the jury to vote for him, he was liable to the defendant for a sixth part of the damages demanded. This was to punish him for bringing a frivolous action. The defendant was not subject to the same risk, unless he pleaded specially. Then, by raising a new issue in the cause, which might be vexatious or for delay, he was considered to put himself in the situation of a plaintiff.

Analogous to this (in criminal proceedings) was a penalty of a thousand drachms that fell on the prosecutor, if he failed to get a fifth part of the votes. But no such risk attended a prosecution for injury done to parents, wards, or heiresses; for such persons were favoured by the law, as needing peculiar protection.

In civil causes, for not less than 100 drachms, there were court fees' paid by both parties to the magistrate, and by him into the public treasury. The successful party was repaid by the other. They varied in amount according to the subject of demand. If the damages amounted to 1000 drachms, the fees might be 3; if to 10,000, 30; and so on.

It seems that in actions for assault and battery there were no fees to be paid. A blow was a grievous insult to an Athenian, and it was better to encourage him to apply for legal redress, than to take the law into his own hands. An exception was made in the case of cross actions, that is, where a defendant brought a similar action against the plaintiff for the same matter. Here it was clear, that one party or the other was proceeding vexatiously; and both were obliged to pay fees.

To give the reader an example of a cross action, I will tell him of a case that occurred in Essex some ten years ago. Two horsemen riding at a

brisk pace on a dusky road came into unpleasant collision. They fell, and horse and man suffered some hurt on both sides. Each of the men brought an action against the other. The causes came on to be tried; but the amusing part of the story is, that each plaintiff obtained a verdict for fifty pounds.

In criminal proceedings, where the prosecutor had no private interest, he only paid a trifling or nominal sum1 for the liberty of commencing them.

Let us observe lastly, that in certain causes a deposit was required of the plaintiff, by way of security against a frivolous demand. Two examples are mentioned; first, where a man claimed property which had been confiscated by the state, and deposited a fifth of its value; secondly, where the claimant of an inheritance deposited a tenth of the value, to be paid to the successful party.

1

παραστασις.

2

παρακαταβολη,

NOTE 12.

DAMAGES.

THE jury by their first verdict simply found for the plaintiff or the defendant. If they found for the plaintiff, a question might arise, what the damages were to be. Sometimes these were fixed by law, as for instance, where for the offence of evilspeaking the law imposed a penalty of five hundred drachms; or by agreement of the parties, as where it was agreed, that for such a breach of contract such a penalty should follow. Or the action (to use our own phrase) might not sound in damages; as where the plaintiff sought to recover an estate in land, or a specific chattel. In other cases the damages were to be assessed. This was done by a separate verdict; and the inquiry was forthwith commenced by the same jury.

The parties addressed the court; first the plaintiff, pressing the jury to give the damages laid in his bill (or declaration). Then the defendant was heard in mitigation of damages; but he was obliged to name a particular sum, at which he estimated their amount; for the question was no