jury; but there was no appeal from one jury to another. The magistrates who presided in the different courts were not all indeed of equal rank or importance; but the courts had a coordinate jurisdiction, and were independent of each other; the jurors in each were virtually the same body of men, representing the whole people of Athens, and exercised the powers of a supreme tribunal.

Although however there could be no appeal from the jury, there were certain causes for which the court itself which pronounced the judgment could set it aside or grant a new trial. These were not indeed so various as with us. For example; a new trial was never granted for errors in law, as where a statute had been misquoted or misconstrued; nor for a verdict against evidence, nor for improper admission or rejection of evidence, nor for any misconduct or irregularity on the part of the magistrate or the jury. The peculiar character of the Athenian tribunal rendered it impossible to give relief upon any such grounds as those. There were, in short, two cases only in which the proceedings could be set aside; first, where a judgment for non-appearance had been given wrongfully; and secondly, where a verdict had been obtained by false testimony.

We have seen, that if either of the parties did not attend before the magistrate on the hearing day, or in court on the day of trial, judgment was given against him, unless some valid excuse was shown for his absence. But it might happen that his absence was inevitable, and yet there was no means of proving this at the time; or that the excuse offered by his friend or agent was improperly rejected; or that the opponent had prevailed against him by unfair means or false representations. Again, a defendant might never have been summoned, in which case the whole of the proceedings would be a nullity. In any of such cases it was competent for the party injured, within two months after the judgment, to apply to the magistrate for a new trial; a rule for which (as we should say) was granted as a matter of course in the first instance, and a day named for the opponent to show cause against it. On that day the mover of the rule produced an affidavit in support of it (this was indispensable), and perhaps gave sureties for the judgment; the party who showed cause might put in a counter affidavit; and evidence might be offered on either side. It rested with the magistrate whether he should grant the new trial or refuse it. Schömann thinks that this was commonly decided by a jury. My view is, that the setting aside of a judgment by default was in most cases the act of the magistrate; that such relief was given as a matter of right, if anything like a reasonable ground was shown for it; that the magistrate never refused it, when he himself thought that it was due; and that, where he had doubts upon the subject only, he gave the mover an

Appeals from a magistrate to a jury upon the imposition of a fine, and from the decision of the Demotæ to a jury, upon the exclusion of a member from the register, do not belong to the present subject. See Hudtwalcker, Ueber die Diäteten, 123.

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opportunity of applying to a jury. For example; when the defendant alleged that he had never been summoned, and the plaintiff's witnesses swore that he had been, the magistrate, if he had any doubt about it, would leave him to indict the witnesses before he granted a new trial.1

The second case in which a judgment could be set aside was, where the verdict of the court had been procured by false testimony.

It has already been mentioned that a false witness was liable to an action at the suit of the injured party. In such an action the main questions, as upon an indictment for perjury in our country, were, 1. whether the evidence given was true or false; 2. whether it was material to the decision of the original cause. If it in any way could have had an influence in procuring that verdict, by which the suitor sustained an injury, the false witness was liable to make him compensation. It is obvious however, that the recovery of damages from the witness could not always be a compensation for the injury he had done. Thus, a lost inheritance involved the loss of family rights, sacred and civil, which no money could either recompense or restore. The very house or land might be endeared to the owner by a thousand recollections. In such a case justice required, that the mischief should be undone rather than paid for. The Athenian law therefore allowed the party, upon conviction of one or more of the witnesses by whose false testimony he lost the verdict, to obtain a new trial. Many similar examples may be conceived, in which a new trial would be equally just and desirable; and we should be glad to know when, and how, and under what regulations and restrictions this right could be exercised. Unfortunately we have but scanty information upon the subject; and that cannot be depended on.

It is said by the Scholiast on Plato,2 that new trials could be obtained on this ground in inheritance causes, in suits for false testimony, and upon indictments for usurpation of civic rights-but in no other instances. There could certainly be no reason for confining the remedy to these cases; and the correctness of the statement has been justly questioned by Schömann. The Scholiast was manifestly wrong upon another point-where he says that, in order to get a new trial, it was necessary to convict more than half the number of witnesses. This statement, which does not agree with what we read in Isæus,3 is in fact a misapprehension of Plato himself, who, without saying that the law was so at Athens, recommends that it should be in his imaginary republic. To make it a condition for a new trial, that a given number of the witnesses should be convicted, was

(1) See Meier and Schömann, Att. Proc. 753-759. The expression for obtaining a new trial after judgment by default was, τὴν ἔρημον ἀντιλαχεῖν, sc. δίκην. The reversal of a judgment ( a more general expression) ávádikos dikn.

(2) Leg. xi. 14.

(3) De Hagniæ hereditate, 88. δίκαι γὰρ ἐνεστήκασι ψευδομαρτυριών, κελεύει δ' ὁ νόμος, ἐὰν ἁλῷ τις τῶν ψευδομαρτυριῶν, πάλιν ἐξ ἀρχῆς εἶναι περὶ αὐτῶν τὰς λήξεις.

an idea more fit for a philosopher than for a lawyer. Another of his rules, that the jury should decide whether the false evidence had procured the verdict, was more probably founded on the practice of his own country. We may perhaps assume, that upon its being expressly found by the jury, that the false evidence had been instrumental in producing such result, the reversal of the judgment followed as a matter of course.1

APPENDIX X.

ARBITRATION.

Ir has sometimes been regretted by law-reformers in this country, that we have no domestic tribunals, to which disputes may be referred in the first instance for amicable adjustment, without resorting to the more troublesome and costly process of a lawsuit. In some countries there are such tribunals; they are called courts of reconciliation; their object, as the name itself denotes, is to reconcile the parties; and, to effect such purpose the more completely, they profess to act on principles of substantial justice and equity, without being bound by legal technicalities.2

Though we have no public tribunals of this kind in England, references of disputes to private arbitration are very common, as well after an action has been commenced as before. A brief sketch of our own practice will not be uninteresting to the scholar, as introductory to the subject of the Athenian.

Nor need I to apologise for the course which I have occasionally taken in this book, of referring to the practice of English law, for the purpose of illustration and comparison. Had I followed the bent of my own inclination, I should have done so much more frequently. For of what use can it be to an English gentleman, to cram his head with the terms of Attic process, when he is utterly ignorant of that of his own country? It is only by some acquaintance with the latter that he is competent to understand the former. Learning should not be one-sided; nor should names be taught without things. It is this which makes the pedant; a genus, of which there are too many among us.

(1) See the Attic Process, p. 761.

(2) One of the principal objects of arbitration originally was to have settlements of disputes upon equitable principles: as we read in Aristotle's Rhetoric, i. 13, kui τὸ εἰς δίαιταν μᾶλλον, ἢ εἰς δίκην βούλεσθαι ἰέναι· ὁ γὰρ διαιτητὴς τὸ ἐπιεικὲς ὁρᾷ· ὁ δὲ δικαστὴς τὸν νόμον· καὶ τούτου ἕνεκα διαιτητής εὑρέθη, ὅπως τὸ ἐπιεικὲς ἰσχύῃ. Courts of equity were at first established for the like purpose; but they soon deviated from their original design, and at this day they are but law-courts of another kind, supplying indeed some of the defects of the common law, but bound by fixed principles and precedents as much as any court in Westminster Hall.

It was always open to parties in this country, to refer a matter in dispute to the decision of some third person, under an agreement between themselves that he should have power to determine it. But there was this disadvantage. If the losing party refused to perform the award, there was no power of compelling him. The only remedy was to bring an action on the agreement, or upon the original matter in dispute: but the benefit of the reference was almost entirely lost.

This inconvenience was obviated partly by the courts of law, and partly by the legislature. Where an action was pending, and the parties wished to refer it to arbitration, they obtained leave to do so, and a rule of court was drawn up for that purpose: the effect of the rule was, that the arbitration was conducted under the authority of the court, and the parties were amenable to its jurisdiction; so that, if any of them disobeyed the award after it was duly made and published, the judges would punish him for contempt of court; while on the other hand, if the arbitrator misbehaved himself, or if the award was manifestly illegal, they would set it aside; and, in short, they exercised a general superintendence over the whole affair of the reference. It was in the reign of Charles II. that this practice began; and it was found to work so well, that in the reign of William III. a statute was passed, enabling parties before action to submit their disputes to arbitration on the same terms as after action, by agreeing that their submission should be made a rule of court, and thus making the award enforceable by attachment.1

(1) The statute is the 9 and 10 William III. c. 15. It consists of two sections, which I subjoin.

I. Whereas it has been found by experience that references made by rule of court have contributed much to the ease of the subject in determining of controversies, because the parties become thereby obliged to submit to the award of the arbitrators under the penalty of imprisonment for their contempt in case they refuse submission. Now for promoting and rendering the awards of arbitrators the more effectual in all cases for the final determination of controversies referred to them by merchants and traders and others concerning matters of account or trade or other matters, be it enacted, That it shall and may be lawful for all merchants and traders and others desiring to end any controversy, suit or quarrel for which there is no other remedy but by personal action or suit in equity, to agree that their submission of their suit to the award or umpirage of any persons shall be made a rule of any of his Majesty's courts of record which the parties shall choose, and to insert such their agreement in their submission or the condition of the bond or promise whereby they oblige themselves respectively to submit to the award or umpirage of any persons, which agreement being so made and inserted in their submission or promise or condition of their respective bonds shall or may, upon producing an affidavit thereof made by the witnesses thereunto or any one of them in the court of which the same is agreed to be made a rule, be entered of record in such court, and a rule shall thereupon be made by the said court, that the parties shall submit to and finally be concluded by the arbitration or umpirage which shall be made concerning them by the arbitrators or umpire pursuant to such submission; and in case of disobedience to such arbitration or umpirage the party neglecting or refusing to perform and execute the same shall be subject to all the penalties of contemning a rule of court where he is a suitor or defendant in such court, and the court on motion shall issue process accordingly, which process shall not be stopped or delayed in its execution by any process of any other court either of law or equity, unless it shall be made appear on oath to such court that the arbitrators or umpire misbehaved themselves, and that such award, arbitration or umpirage was procured by corruption or other undue means.

[II. And

According to the practice thus established arbitration is for the most part carried on in England at the present day. Strange indeed to say, notwithstanding the advantage of referring matters in difference before litigation, it is more customary to do so after it has commenced. The course pursued is usually as follows. In the progress of a cause the parties become convinced, that a court of law is not the fittest tribunal to decide the points at issue between them; for instance, where there are long and intricate accounts to go through, or details that require the attention of scientific persons; or where there is a family quarrel that ought not to be dragged before the public; or wherever the dispute is of such a nature, as to require an equitable adjustment rather than a single peremptory decision. Strong feelings have in the first instance hurried the plaintiff into an action, and prevented the defendant from offering any reasonable terms. Reflexion afterwards, or the fear of expense and exposure, induce them to consent to a reference. An order for that purpose is made by a Judge at chambers. Often, after the cause has been brought into court and even partly heard, the Judge himself, seeing the difficulties which attend the trial, and the impossibility of meeting the exigencies of the case by a verdict, will advise a reference. By a late statute the judges are empowered, upon an application by either of the parties, to order a cause to be referred, where the questions turn upon matters of account, which cannot conveniently be tried by a jury.1

A single arbitrator is generally appointed, when a cause is referred; as a barrister, a surveyor, an engineer, or any other person whose professional knowledge fits him to be a judge of the case. It is not unusual for each party to appoint one referee, with power to nominate a third in case of a difference of opinion. Such third person is called an umpire.

Let us now see what was the practice of the Athenians when they referred their disputes to arbitration.

That a vast deal of business was done by arbitrators at Athens, appears clearly enough from the private speeches of the orators. To understand what we read about them, we must first distinguish between two different kinds of arbitrators, the official or public, who were appointed by the state, and the private ones, who were chosen by the parties.

The official or public arbitrators were a sort of inferior judges, forty in number, four being chosen by lot annually from each tribe. They were required to be at least fifty years of age, and took an oath to

II. And be it enacted, that any arbitration or umpirage procured by corruption or undue means shall be judged and esteemed void and of non-effect, and accordingly be set aside by any court of law or equity, so as complaint of such corruption or undue practice be made in the court where the rule is made for submission to such arbitration or umpirage before the last day of the next term after such arbitration or umpirage made and published to the parties.

(1) By the 17 and 18 Victoria, chapter 125, sections 3 and 6. They may refer the cause either at the trial or before, and either to an arbitrator chosen by the parties, or to an officer of the court, or, in the case of country causes, to a county court judge.