for her as fifler and heiress of Endius lately deceafed. However that might be, this cause affords a good fpecimen of Athenian pleading; for, in the criginal fuit, Xenocles appears to have been complainant in right of his wife Phila, and to have demanded in his bill the three talents, of which her father died poffeffed: to this the defendant, who was the mother of Endius, pleaded, that she was the fister of Pyrrhus, and, on the death of his adopted fon without heirs, became entitled to his eftate: Xeno'cles replied, in the form called diamaglupia or a proteftation, that fhe had no title, because Pyrrhus had left a legitimate daughter: this the defendant traverfed or denied; and, as the iffue was found in her favour, the complainant, who had protested upon oath, muft neceffarily have been perjured. I chofe to give this Attick form the name of proteftation, although obteftation be more literal, and although the former word be reftrained in our law to a parenthetical allegation, which is not traverfable; but I cannot too often request the reader of Ifæus to place himfelf at Athens, and to drop for a time all thoughts of our own forenfick dialect. This proteftation then, which answered fometimes to a demurrer, and fometimes to a fpecial plea in bar, differed from the wagaygap or exception; for the firft might be entered by either of the contend

ing parties, or even by a third perfon inter vening; as, in the litigation concerning the eftate of Dicæogenes, when Menexenus and his cousins were going to join iffue with their adversary, Lecchares put in a proteftation, that the beirs at law were precluded from claiming the inberitance: but the exception, which in general was a dilatory plea, could only be made by the defendant. Thefe oblique modes of pleading were, however, confidered as unfair, and were therefore discountenanced, as tending to divert the ftream of juftice, and to evade a candid investigation of the whole truth: thus Thrafyllus, in the fixth speech, makes a merit of having pleaded in a direct form, when it was in his power to have protefted fpecially, that he was the adopted fon of Apollodorus; and, in the fifth, the fame topick is urged in favour of Chareftratus, whofe advocate infifts, that his opponent, inftead of protesting, that Philoctemon had left legitimate fons, fhould have denied at once the validity or existence of his will. It feems that, in all cafes of difputed eftates, every devifee, and every heir, except a lineal defcendant, was compelled to make a claim by exhibiting a bill to the Archon: if his title was controverted, the adverse claimant presented a crossbill, called anypan, and it appears from the laft mentioned cauie, that this courfe might be pur

fued by a person who had protested, even after the iffue on his proteftation had been found against him; whence it follows, that a multiplicity of trials was prevented by the fudixía or general plea. We may collect alfo from a paffage in the fourth of the following fpeeches, as well as from Harpocration, that when a stranger interpofed by protesting, that the estate was not irid or open to controverfy, it was ufual to difcontinue the original action, and to try the iffue joined on the proteftation, the event of which trial must have directed the judgement in the firft caufe: what follows that paffage is extremely fingular; for, when Leochares was more than half-convicted of perjury, the punishment of which was a perpetual deprivation of all civil rights, the plaintiff not only was permitted to decline taking the verdict, but even confented to accept the promife of Leochares himself, that Dicæogenes fhould furrender the property in difpute.

Whenever, in the course of these pleadings, the parties came to a fact or a point of law (for both were determined by the fame judges) afferted on one fide and denied on the other, the Archon proceeded, as if the defendant had pleaded generally and all the writings in the cause, the bills, claims, cross-depofitions, challenges, proteftations, and exceptions, together with such in

struments as had been exhibited, and, I believe, with the depofitions of the witneffes, were enclosed in a veffel called ix, which could not be opened till it was carried into court.

Thus was a cause at Athens prepared for trial, and, we must acknowledge, in a fimple and expeditious manner; nor was the popular form of pleading the general iffue, and proving the special matter in court, liable to the objection of expofing the parties to the danger of being furprized with an unforeseen cafe or unexpected evidence; fince all the circumftances were previously fifted, and the depofitions accurately fettled, in the prefence of the Archon, so that each party was fully aware of his adversary's ftrength, and able to inftruct his advocate without darkness or perplexity: yet if we confider the multitude of law-fuits, with which, as Ifæus himself informs us, Athens abounded, it must appear ftrange how fix or feven magiftrates, even with their affeffors, could have time to conduct the altercation of fo many litigants, and to perform the other important duties of their office. At Westminster a fimilar plan would be found impracticable; nor fhall I cafily be induced to wish for a change of our prefent forms, how intricate foever they may feem to those who are ignorant of their utility. Our fcience of special pleading is an excellent Logick; it is

admirably calculated for the purposes of analyfing a caufe, of extracting, like the roots of an equation, the true points in difpute, and referring them with all imaginable fimplicity to the court or the jury: it is reducible to the strictest rules of pure dialectick, and, if it were scientifically taught in our publick feminaries of learning, would fix the attention, give a habit of reasoning closely, quicken the apprehenfion, and invigorate the understanding, as effectually as the famed Peripatetick system, which, how ingenious and fubtile foever, is not fo honourable, fo laudable, or fo profitable, as the science, in which Littleton exhorts his fons to employ their courage and care. It may unquestionably be perverted to very bad purposes; but fo may the nobleft arts, and even eloquence itself, which many virtuous men have for that reafon decried there is no fear, however, that either the contracted fift, as Zeno used to call it, or the expanded palm, can do any real mischief, while their blows are directed and restrained by the fuperintending power of a court.-But let us return to Athens.

The next act of the Archon was to caft lots for the judges, on whom I chuse in general to confer that title, because they determined not the fact only, but the law and equity, of every cafe: although I have always been of opinion