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734
c. Theocr. 1324 ; Aesch. c. Timarch. 10, ed. Steph.; Isaeus, de Astypli. her. 76, ed. Steph., c. Leocr. 150, ed. Steph.; Meier aiid Schomann, Alt. Proc. p. 672 ; Platn. Att. Proc. p. 219.)
An oath was usually taken by the witness at the avaKpuris, where he* was sworn by the opposite party at an altar (rrpbs rbi/ fitofjibv elcyp/aVflr?). If he had not attended at the d^a/cpicm, he might be sworn afterwards in court; as was always the case when a witness took the oath of denial (e£w/*ocr€). In the passage just cited from Lycurgus, the expression. Xo.€6vTa.s to. tepct. means nothing more than touching the altar or its appurtenances, and has no reference to victims. (Valckenaer, Opusc. PMlol. vol. i. pp. 37—39.) Whether the witness was always bound to take an oath, is a doubtful point. (See Demosth. c. Coron. 1265, c. Steph. 1119, c. Eubid. 1305 ; Aesch. de Fals. Leg. 49, ed. Steph. ; Schomann, Att. Proc. p. 675.)
The oath of the witness (the ordinary v6jj.ifj.os op/cos) must not be confounded with the oath taken by one of the parties, or by some friend or other person out of court, with a view to decide the cause or some particular point in dispute. This was taken by the consent of the adversary, upon a challenge given and accepted ; it was an oath of a more solemn kind, sworn by (or upon the heads of) the children of the party swearing (kolto. ruv Trou’Scoy), or by perfect or full-grown victims (/caO’ tepcov reAeiW), and often with curses upon himself or his family (/car5 e|a?A€ias), and sometimes was accompanied with peculiar rites, such as passing through fire (5*a rov Trvp6s). The mother, or other female relation of the party (who could not be a witness) was at liberty to take this oath. (Demosth. c. Apkob. 852, c. Boeot. de Dote, 1011, c. Timoth. 1203, c. Callipp. 1240, c. Conon. 1269, c. Neaer. 1365 ; AVachsmuth, vol. ii, pt. i. p. 335 ; Hudtwalcker, pp. 52—57.)
On some extraordinary occasions we find that freemen were put to the torture by a special decree of the people or the senate ; as on the occa-ision of the mutilated Hermes busts (Thirlwall, Hist, of Greece, c. 25. p. 393) ; and they were less scrupulous about aliens than about citizens ; but (as a general rule) it is certain that freemen could ,not be tortured in courts of justice, and even an emancipated slave, Demosthenes says it would be an act of impiety (ot>55 3<noz/) to give up for such u purpose. (Demosth. c. ^phob. 856, c. Timoth. 1200 ; Meier, Att. Proc. p. 684.)
With respect to hearsay evidence see ecaiar-tyria : and with respect to the affidavit called SmjUaprupi’a, see heres, p. 597, a.
We have hitherto spoken only of causes which came before the dicasts in the ordinary way, and have said nothing of those which were decided by the public arbitrators. The above remarks, however, will equally apply to the latter, if the reader will bear in mind that the arbitrator performed the duties of the magistrate at the avdicpicris as well as those of the SiKavrai at the trial. He heard the witnesses and received the depositions from day to day, as long as he sat, and kept the *xlvos open until the last day (itvpiav -fyuepcw). (See Demosth. c. Mid. 541, c. Timoth. 1199; Meier and Schomann, Att. Proc. p. 676.)
If the witness in a cause gave false evidence, the injured party was at liberty to bring an action against him (5£/c?7 tyevfiofjLapTvpiuv} to recover compensation. The proceeding was sometimes called
‘, and the plaintiff was said e 6ai rrj papTvpicf. or r&5 pdprvpi (Isaeus, de Pyrr. Jier. 39, de Dicaeog. her. 52, ed. Steph. ; Demosth. c. Aphob. 846, 856 ; Harpocr. s. v. ‘ETreavd^ciTo). This cause was probably tried before the same presiding magistrate as the one in which the evidence was given. (Meier, Att. Proc. p. 45.) The form of the plaintiff’s bill, and of the defendant’s plea in denial, will be found in Demosthenes (c. Steph. 1115). From the same passage we also learn that the action for false testimony was a ri/^r^s wyuv, in which the plaintiff laid his own damages in the bill; and from Demosthenes (c. Aphob. 849, 859), it appears that the dicasts had power not only to give damages to the plaintiff, but also to inflict the penalty of arifjiia by a Trpoari^ffis. (See also Isaeus, de Dicaeog. her. 52.) A witness who had been a third time convicted of giving false testimony was ipso jure disfranchised. (Meier, Alt. Proc. p. 383.) The main question to be tried in the cause against the witness was, whether his evidence was true or false ; but another question commonly raised was, whether his evidence was material to the decision of the previous cause. (Demosth. c. Euery. et Mnes. 1139, 1161, c. Aphob. 853—856, c. Steph. 1117; Plainer. Ait. Proc. vol. i. p. 400, &c.)
When a witness, by giving false evidence against a man upon a criminal trial, had procured his conviction, and the convict was sentenced to such a punishment (for instance, death or banishment) as rendered it impossible for him to bring an action, any other person was allowed to institute a public prosecution against the witness, either by a 7pa</>7/, or perhaps by an eivayyeXia or irpo€o’f]. (Andoc. de Myst. 4 ; Platner, Att. Proc. p. 411 ; Meier, Att. Proc. p. 382.)
After the conviction of the witness, an action might be maintained against the party who suborned him to give false evidence, called Sluti KaKorsx^iuy. (Demosth. c. Timoth. 1201, c.Eucrg. et Mnes. 1139,) And it is not improbable that a similar action might be brought against a person, who had procured false evidence to be given of a defendant having been summoned, after the conviction of the witness in a ypa^ iJ/euSoKA^Teias-. (Meier, Att. Proc. p. 759.)
It appears that in certain cases a man who had lost a cause was enabled to obtain a reversal of the judgment (§1/07 cwaSi/cos), by convicting a certain number of the adverse witnesses of false testimony. Thus in inheritance causes the law enacted eai>
TTGpl avr&v ras ^ets. (Isaeus, de Hagn. her. 88, ed.; Steph., de Dicaeog. her. 50, 51.) This" was the more necessary, on account of ^the facility afforded to the parties to stop the progress of these causes by affidavits, and also because no money could compensate an Athenian for the loss of an inheritance. The same remedy was given by the law to those who had been convicted in a Si’/crj ls€vo~o[j(.apTvpL&v or in a ypafyfy ^zvias. In the last case the convicted person, who proceeded against the witness, was compelled to remain in prison until the determination of his suit. (Demosth. c. Timocr. 741.) We are informed that these are the only cases in which a judgment was allowed to be reversed in this way ; but whether there were not more cases than these has been justly doubted by Schomann (Att. Proc. 761). The Scholiast on Plato (Leg. xi. 14) is evidently wrong
