Have I not been deeply wronged from the beginning, and am I not still persecuted by them, because I seek to obtain redress? Is there one of you, who does not feel an honest

public charges, it might appear that the whole of A's property was embarked in a trade speculation, which might ultimately realise something considerable, but of whose present value it was almost impossible to make an estimate, while B had a much larger amount of ready money in his hands. Many similar examples might be suggested; but we may content ourselves with this of Demosthenes. Here are two men; one of whom (Thrasylochus) possesses (we will assume) five talents; the other (Demosthenes) has only one talent in his possession, but has a right of action by which he may possibly get thirty talents. But his chance of success depends almost entirely on matters personal to himself, such as, his own knowledge of the facts, his own exertions, stimulated by a sense of wrong and injustice, his eloquence and ability, his position and character, his claim to public sympathy as an injured orphan. All these advantages were incapable of being transferred to his assignee; and therefore it might well be, that an exchange of estates, by which Demosthenes took the five talents and Thrasylochus the one talent and the right of action, would be injurious to both parties, and consequently, in some degree, to the public also. Common sense therefore would lead us to infer, that the Athenian jury must have had power to look into questions of this sort, and in such cases as I have suggested either to dismiss the petition of the party tendering the exchange, or to make such special order with respect to the mode of effecting it, as the necessities of the case, and a due regard to what was fair and equitable, required. Assuming that this was the practice of the Athenian court, or that Demosthenes believed it to be such, we arrive at a not unreasonable explanation of this passage.

When Thrasylochus proffers him the trierarchy or the exchange, Demosthenes, not having ready money enough for the former, and knowing that his estate in possession was much less than that of Thrasylochus, accepts the exchange (ȧvтédwкe). "Very well;"-says Thrasylochus "then the claim against the guardians is mine." "Oh, no"-replies Demosthenes-"you will only take my estate in possession at all events, that will be decided upon the interpleader before the Generals." Thrasylochus, pretending that the property had become his immediately by the verbal acceptance of Demosthenes, began in conjunction with his brother Midias to take forcible possession and break open the doors of the inner apartment (see the Oration against Midias, Vol. iii. p. 91); upon which Demosthenes proceeds to turn him out (dékλeiσe), intending to have it decided before the Generals (ὡς διαδικασίας τευξόμενος), whether his claim against the guardians would pass by the transfer, before he finally accepted the exchange, and hoping also that the jury would under the circumstances exonerate him altogether. Not however being able to get the interpleader brought on soon enough (où TUXúv Taúтns), for the cause against Aphobus came on in three or four days, he got alarmed, particularly when he found that Thrasylochus had given a release of the action to

indignation against the defendant and compassion for me; seeing that he, besides an estate of more than ten talents which he inherited, has got another of equal amount, belonging to me, while I have not only lost my patrimony, but am by the villainy of these men deprived of the trifle which they have returned me? To what can I have recourse, should you come to any adverse decision? To the property mortgaged to creditors? It belongs to the mortgagees. To the surplus remaining after repayment? That will go to the defendant, if by your sentence I am decreed to pay a sixth part of the damages. I entreat you, men of the jury, do not entail upon us so heavy a calamity; do not allow my mother, myself, and my sister, to be reduced to unmerited misfortune. My father left us not with such prospects as these. His daughter he had betrothed to Demophon with a portion of two talents; his widow with a fortune of eighty minas was to have married this most cruel of men, the defendant; and me he intended to fill his own place as a contributor to the public service. Succour us then, succour us, for the sake of justice, for your own, for ours and our deceased father's sake. Save us, have mercy on us, since these our relations have shown no mercy. Το you we are come for protection. I pray and beseech you, by your wives and children, by all the blessings you possess ; as you hope to enjoy them, do not abandon me, do not cause my mother to be deprived of all her remaining hopes in life, or to suffer distress unbecoming her condition. Now, poor woman, she expects that I shall return home to her, restored by your verdict to my rights, and that my sister will not remain portionless; but should you decide against me (which heaven forbid), what think you will be her feelings, when she beholds me not only the guardians; or perhaps he did not choose to be hampered with both these affairs at the same time; so he borrowed the money, and paid the trierarchal charge.

Reiske's version of ἀπέκλεισα δὲ ὡς διαδικασίας τευξόμενος, “excepi et reservavi mihi jus agendi in tutores," has been adopted by Platner, Att. Proc. ii. 19, and by Pabst, who translates-"ich liess mich zwar zu dem Vermögenstausch bereit finden, jedoch so, dass ich einen Vorbehalt machte wegen Ausschliessung der Forderung an die Vormünder vom Tausche, in der Hoffnung, ein rechtliches Erkenntniss darüber zu erlangen." Notwithstanding these high authorities, I cannot bring myself to think that the Greek words admit of such an interpretation; nor indeed do I think it agrees so well with the context or the facts.

stripped of my inheritance, but also deprived of my franchise, and my sister wholly destitute, without a chance of ever obtaining a suitable establishment? It would not be right, men of the jury, either to refuse me redress, or to allow Aphobus to retain his plunder. With regard to myself, though you have no actual experience of my disposition towards you, it is fair to presume that I shall not be worse than my father. Of my opponent you have some experience; and you well know that, though he has inherited a large fortune, he has not only shown no liberality to the public, but even grasps at the property of his neighbour. Bear in mind this, with the other facts of the case, and give your votes according to justice. You have the clearest evidence to guide you, the evidence of witnesses, circumstances, probabilities, these men's own acknowledgment that they took possession of my estate. They say they have spent it; a falsehood; for they have it still. But let this warn you to be careful of my interests; seeing that, if I recover my rights by your assistance, I shall naturally be grateful to you for restoring them, and glad to serve the public offices; whereas the defendant, if you let him keep what belongs to me, will do nothing of the kind; for don't suppose that he will choose to contribute in respect of property, which he denies having received: no; he will rather conceal it, to justify the verdict in his favour.

THE ORATION AGAINST APHOBUS-III.

THE ARGUMENT.

PREVIOUS to the trial of the last case, Aphobus had called upon Demosthenes to give up Milyas, the foreman who managed the sword-cutlery business, to be examined by torture. Demosthenes refused to give him up, on the ground that he had been emancipated from servitude by his father on his death-bed, and therefore it was not lawful to examine him by torture. Knowing that the refusal would be made a topic of observation against him on the trial, he called Phanus, Philip, and Æsius, the brother of Aphobus, to prove that Aphobus had, on being interrogated before the arbitrator, admitted Milyas to be a freeman. Aphobus brought actions against Phanus and Philip for having given this testimony, which he alleged to be false. The cause against Phanus seems to have been tried first, and Demosthenes appeared in his own person to defend him, as he had a right to do; for the action for false testimony was consi

dered as a branch of the original cause, and might perhaps lead to a new trial. (See Vol. iii. Appendix IX. p. 394.)

Demosthenes in his speech shows by positive evidence that the testimony of Phanus was true; that Aphobus had made the statement in question, and that Milyas was in fact a freedman. He shows the improbability of the charge, insists upon the good character of Phanus, and the absence of any motive to speak falsely. Supposing even that his evidence has been untrue, Demosthenes contends that he would not be liable to the present action; for the evidence was not material, or not sufficiently material, to the issue in the original cause. Aphobus had not been damnified by it; for Milyas could not have proved anything to his advantage, if he had been examined. The verdict was given against Aphobus, not for what Phanus had deposed to, nor for lack of what Milyas could have proved, but on account of the strong and direct testimony which fixed him with the receipt of the trust funds, and the neglect to administer them properly and render a just account. None of the witnesses who gave that testimony had he dared to sue; that alone proved the present proceeding to be unfounded and vexatious. In fact it was a desperate attempt to re-open and re-argue a cause which had been decided against Aphobus on the most irresistible evidence. Demosthenes touches upon the leading features of the original cause, in order to show how little bearing the testimony of Phanus had upon the merits of the question, and with a view also to create an impression in his own favour in the minds of the jury.

IF I had not remembered, men of the jury, that on a former trial between Aphobus and myself I convicted him easily of greater falsehoods than any which he has now uttered (so palpable were the wrongs he had done me), I should have no slight misgivings as to my own ability to expose the arts by which he misleads you. Now however, (with the favour of the Gods be it spoken), if you will only give me a fair and impartial hearing, I feel confident that you will form the same opinion of this man's impudence as the jury on the previous occasion. If indeed the case had required an artful speech, I should have distrusted my youth and shrunk from the contest: as it is, I shall simply have to lay before you a statement of the plaintiff's conduct towards From this you will have no difficulty in discovering which of us is the rogue.

us.

I know that he has commenced these proceedings, not with any expectation that he shall convict a witness of giving false testimony against him, but in the belief that the large amount of damages, which he was condemned to pay, will excite a prejudice against me, and a feeling of compassion

for himself. On this account he now labours to clear himself of the charges made against him at the former trial, on the merits of which he had not a word to say in his defence at the time. I beg to observe, men of the jury, that, if I had proceeded to execute the judgment without showing him any indulgence, I should have done no wrong in levying the damages which you had awarded, though it might perhaps have been urged, that I had acted with excessive rigour in depriving a relation of all his property. The truth however is the reverse. The plaintiff has conspired with his fellow-guardians to strip me of my whole patrimony, and even now, after having been clearly convicted by a jury of his country, he does not choose to do anything which is fair and reasonable. He has dispersed the whole of his effects, giving the house to Æsius, and the farm to Onetor, with whom I have been compelled to go to law; he took the furniture out of the house himself, carried away the slaves, broke the wine vat, tore off the doors, and all but set fire to the house; then he went off to Megara, where he has settled and paid the alien's tax. Surely you have more reason to execrate the plaintiff for such behaviour, than to charge me with any undue severity.

Of the rapacity and wickedness of this man I shall presently give you a full account, though indeed you have heard a pretty good summary of it already. But I shall now pro

ceed at once to prove the truth of that piece of evidence, which is the subject of inquiry, and upon which you will have to pronounce your judgment. I have one request to make to you, men of the jury, and that is a reasonable one; that you will give to both of us a fair hearing. It is for your own advantage to do so as well as mine; for, the more accurately you are informed of the facts, the more just and righteous will be your decision. I shall show that the plaintiff has confessed Milyas to be a freeman, and proved the same by his conduct; that he has declined the most infallible test, the examination by torture, for fear the truth should

1 I adopt the conjecture of Wolf, which seems to have occurred also to Reiske; and which is fortified by what follows about Esius (p. 149, orig.). Esius was the brother of Aphobus, and clearly a partisan in his cause. No one was more likely to have assisted him in making away with his property.