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patrons (curoffracriov St/ccu) foreigners were not allowed to put in an affidavit, that the action was not maintainable (jut? €i(rayd>yifjLov elVcu). But this can hardly be considered an exception, for such affidavits gave an undue advantage to the party for whom they were made.
Neither of the parties to a cause was comp?tent to give evidence for himself, though each was compelled to answer the questions put by the other. The law declaredriTO?y a.vn§iKou> eTrdvayttes slvai aTroKpivacrQat a\\7]\ois rb epwrco/^evoK, jj.aprvpt'tj/ Se jU^. (Demosh. c. Steph. 1131.) That the friends of the party, who pleaded for him (called owTjyo-pot), were not incompetent to give evidence, appears from the fragment of Isaeus, pro Euphil., and also from Aeschines, who, on his trial for misconduct in the embassy, calls Phocion to assist him both as a witness and an advocate. (De Fals. Leg. pp. 51, 53, ed. Steph.)
The obligation to attend as a witness, both in civil and criminal proceedings, and to give such evidence as he is able to give, arises out of the duty which every man owes to the state ; and there is no reason to believe that any persons (except the parties themselves) were exempted from this obligation. The passages which Platner (Att. Proc. p. 217) and Schomanii (Att. Proc. p. 671) cite in support of the contrary view, prove nothing more than that the near relations of a party were reluctant to give evidence against him ; whereas the fact that they were bound by law to give evidence may be inferred from Demosthenes (c. Aphob. 849, 850, 855).
The party who desired the evidence of a witness, summoned him to attend for that purpose. The summons was called 7rpocr/c\7jcrts. (Deinosth. c. Timoth. 1194.) If the witness promised to attend and failed to do so, he was liable to an action called St/ci; Xetiro/iiapTvptov. Whether he promised or not, he was bound to attend, and if his absence caused injury to the party, he was liable to an action (8iK77 J3\d,gr)s). This is the probable distinction between these forms of action, as to which there has been much doubt. (Meier and Schomann, Att. Proc. p. 387 ; Platner, Att. Proc. p. 221.)
The attendance of the witness was first required at the avq.Kpicri^ where he was to make his deposition before the superintending magistrate (^ye/xcby SiKaorrtipiov). The party in whose favour he appeared, generally wrote the deposition at home upon a whitened board or tablet (AeAeuttw/xeVoi/ ypafj.fJLa.Te'iov'), which he brought with him to the magistrate's office, and, when the witness had deposed thereto, put into the box (e'x^o?) in which all the documents in the cause were deposited. If the deposition were not prepared beforehand, as must always have been the case when the party was not exactly aware what evidence would be given, or when any thing took place before the magistrate which could not be foreseen, as for instance a challenge, or question and answer by the parties ; in such a case it was usual to write down the evidence upon a waxen tablet. The difference between these methods was much the same as between writing with a pen on paper, and with a pencil on a slate ; the latter could easily be rubbed out and written over again if necessary. (Demosth. c. Steph. 1132.) If the witness did not attend, his evidence was nevertheless put into the box, that is, such evidence as the party intended him
to give, or thought he might give, at the trial. For all testimonial evidence was required to be in writing, in order that there might be no mistake about the terms, and the witness might leave no subterfuge for himself when convicted of falsehood.
(Demosth. c. Steph. 1115,; 1130.) The might last several days, and, so long as it lasted, fresh evidence might be brought, but none could be brought after the last day, when the box was sealed by the magistrate, and kept so by him till the day of trial. (Demosth. c. Aphob. 836, c. Boeot. de Norn. 999, c, Euerg. et Mnes. 1143, c. Conon. 1265.)
The form of a deposition was simple. The following example is from Demosthenes (c. Lacr. 927) : — " Archenomides son of Archedamas of Anagyrus testifies, that articles of agreement were deposited with him by Androcles of Sphettus, Nausicrates of Carystus, Artemon and Apollodorus both of Phaselus, and that the agreement is still in his hands." Here we must observe that whenever a document was put in evidence at the trial, as an agreement, a will, the evidence of a slave, a challenge, or an answer given by either party at the avaKpio-is, it was certified by .a witness, whose deposition was at the same time produced and read. (Demosth. pro Phorm. 946, 949, 957, c. Phaenipp. 1046, c. Steph. 1120.)
The witness, whether he had attended before the magistrate or not, was obliged to be present at the trial, in order to confirm his testimony. The only exception was, when he was ill or out of the country, in which case a commission might be sent to examine him. [ecmartyria.] All evidence was produced by the party during his own speech, the /cAei|/u5/)a being stopped for that purpose. (Isaeus, de Pyrr. her. 39, cd. Steph. ; Demosth. c. Eubul. 1305.) The witness was called by an officer of the court, and mounted on the raised platform (jS^a) of the speaker, while his deposition was read over to him by the clerk ; he then signified his assent, either by express words, or bowing his head in silence. (Lys. de Eratos. Mort. 94, ed. Steph. ; Aesch. de Fals. Leg. 49, ed Steph.; Demosth. c. Mid. 560, c. Phorm. 913, c. Steph. 1109. c. Eubul. 1305.) In the editions that we have of the orators we see sometimes Maprvpta. written (when evidence is produced) and sometimes MapTupgs. The student must not be deceived by this, and suppose that sometimes the deposition only was redd, sometimes the witnesses themselves were present. The old editors merely followed the language of the orators, who said " call the witnesses," or " mount up witnesses," or " the clerk shall read you the evidence " or something to the same effect, varying the expression according to their fancy. (See Lys. pro Mantith. 147, ed. Steph. ; Isaeus, de Pyrr. her. 45, ed. Steph. ; Demosth. c. Calllpp. 1236, c. Neaer. 1352.)
If the witness was hostile, he was required either to depose to the statement read over to him, or to take an oath that he knew nothing about it (fj.ap-rvpeiv $ Qojj.vveiv'). One or the other he was compelled to do, or if he refused, he was sentenced to pay a fine of a thousand drachms to the state, which sentence was immediately proclaimed by the officer of the court, who was commanded K\T]revsij/ or eK/cA^reueiz/ avrov, i. e. to give him notice that he was in contempt and had incurred the fine. (Demosth. c. Aphob. 850, c. Ncaer.137'3,