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know that he spoke for Aphobus in reduction of damages, fixing them at a talent, and offering to be bail to me for that amount? Here again is proof, not only that Aphobus lived with his wife, and the defendant was on friendly terms with him, but also that the marriage portion never was paid. For what man would be such a fool as first to pay a large sum of money on the security of an estate with a doubtful title, and then, not content with his bad bargain, but as though the person who took him in had done a righteous act, to become his bail for a judgment debt? No man, I should think. It is not rational to suppose that a person, who was unable to recover a talent due to himself, should promise to pay that sum to another, and give bail for it too. No; the very act shows that he has never paid the portion, but took the mortgage as a friend of Aphobus, in return for my large property,' and hoping to make his sister a partner with him in my inheritance. And now he endeavours to cheat and deceive you, by saying, that he set up the tablets before judgment was given against Aphobus. Yes, Onetor; but not before you had given judgment against him; at least, if there is truth in your present story; for it is clear that, when you took these steps, you were in your own mind satisfied of his guilt. But indeed the argument is ridiculous; as if you, men of the jury, were not aware that all rogues consider what they shall say, and no one ever lost a cause for lack of words, or confessing himself to be in the wrong. His lies are first detected, and then the man's character becomes known. Such appears to me to be the defendant's case. Come tell me, Onetor, how can it be
practice of tendering what I have called the evidentiary oath, or wager of law. (See Vol. iii. Appendix ix. pp. 383-386.) The orator argues thus-Onetor at first claimed eighty minas: he now admits the falsehood of this claim, which ought to have been a talent only: but if I had offered to give him the eighty minas upon his swearing to the justice of the claim, it is clear he would have sworn to it: [Quære :] then he would have perjured himself: therefore he would perjure himself now and therefore you cannot trust him, &c.
The argument, if good for anything, tends to show that a man's oath is no better than his bare word, and that a liar is always ready to commit perjury.
1 Onetor does a good turn to Aphobus in taking the fictitious mortgage. In return for this, his sister is married to a man so much the richer by the plunder of Demosthenes; and perhaps Onetor himself comes in for a share of this.
just, that, if you put up tablets for eighty minas, the portion shall be eighty minas; and if for more, more; and if for less, less? Or how can it be just, when your sister up to this day has never lived with another man, or been separated from Aphobus, and when you have not paid the portion, and have not chosen to resort to the torture or to any other fair mode of determining these questions, that, because you say you have set up tablets, the farm shall be yours? I cannot see the justice of this. We must look to the truth, not to the contrivances by which men like you patch up a plausible story. Besides, good heavens! suppose it were ever so true that you had paid the portion (which you have not), who is to blame for that? yourselves; for you took my property as a security. Did not Aphobus take possession of my estate (for which judgment was given against him) ten whole years before he became your brother-in-law? And was it right that you should recover everything, while I, who have obtained a judgment, an oppressed orphan, and the loser of a real portion, who alone of all mankind ought to have been exempted from the risk of costs,1 am thus reduced to distress, and have recovered nothing at all, though I have been ready to accede to any terms of your own proposing that were fair and reasonable?
THE ORATION AGAINST ZENOTHEMIS.
DEMON, for whom Demosthenes composed the speech now before us, was his uncle by marriage, as the reader has already seen (ante, page 93). The action, in which he procured the orator's assistance, was brought against him under the following circumstances. He had entrusted a sum of money, which he held in partnership, to a corn-merchant, named Protus, who engaged to purchase corn in Sicily and bring it to Athens. The transaction between Demon and Protus was probably a loan of a similar character to what we read
1 The risk of having to pay a sixth of the damages, upon failure to get a fifth part of the votes. This was called erwßeλía, which is a word not translatable.
of in the cases against Phormio and Lacritus, where the capitalist lends money to the merchant adventurer on a sort of bottomry speculation. The exact nature of their agreement is not explained. Certain it is however that, according to the terms, Demon was entitled to take possession of the cargo upon its arrival in the Athenian port, and, if not to dispose of it, at least to hold it as security till the loan with interest was repaid.
Protus embarked in a vessel belonging to one Hegestratus, bound for Syracuse, and having arrived at that place, purchased a quantity of corn and put it on board. While the ship was yet in port, Hegestratus enters into a conspiracy with Zenothemis, who was one of his passengers, to commit a fraud of a highly criminal nature. Each of them borrows money in Syracuse, and each refers to the other to vouch for his responsibility. Hegestratus tells the persons, with whom Zenothemis was negotiating, that he had a large cargo of goods on board his vessel; and Zenothemis makes the like representation in favour of Hegestratus. The money which they contrived to borrow in this way they send to Massilia (the modern Marseilles), of which town they were both natives, and neither of them brings any cargo on board. Their loans were made on the usual terms, that, if the ship returned safe to Syracuse, the lenders should receive back what they had lent with a large premium; if the ship were lost, they lost their money. To cheat the creditors therefore, Hegestratus and Zenothemis arranged to sink the vessel, after she had got out to sea, and save themselves by boat. The third day after leaving Syracuse, Hegestratus goes down in the night-time, and begins to cut a hole in the ship's bottom. He is caught in the act by the passengers, and, as they are about to inflict summary punishment on him, he throws himself overboard, misses the boat, which had been put out to save him, and is drowned. Zenothemis wishes the seamen to abandon the ship, but Protus, who is anxious to carry his corn to Athens, offers them a large reward if they will carry her into port, and by dint of great exertions they get her safe to Cephallenia, one of the Ionian islands. There, after the ship had undergone repairs, Zenothemis proposed that she should sail to Marseilles. The matter was referred to the authorities of the island, who decided that she should be taken to Athens, her original place of destination. Upon the ship's arrival, Protus gives notice to Demon and his partners that the corn was safe in port, and they immediately come down to receive possession from him. To their surprise they find, that the corn is claimed by Zenothemis, under the pretence that it had been purchased by Hegestratus, and that he had lent money to Hegestratus upon it. Words take place between them, and Zenothemis proceeds to assert his claim by unlading the cargo; but this is prevented by Protus and Demon, who lay hands upon him and remove him. Thereupon he commences an action against each of them. To the action against Demon the present defensive pleading was prepared by Demosthenes.
The defendant puts in a special plea, alleging that the action is not maintainable, because there had been no contract between the plaintiff and himself, and the Athenian law only allowed actions of the
present kind, where money had been advanced under a written contract, upon some commercial enterprise from or to the port of Athens. To make this intelligible, we must bear in mind, that the suit against Demon was one of that class which the Athenians called "mercantile actions;" for it was only to such actions that the pleading in question, and the law upon which it was founded, could have any application. To suppose that a merchant or a shipowner could have no legal redress for an injury, because the wrongdoer had not entered into such a contract with him as that mentioned in the law, would be manifestly absurd. But what the law meant was, that they should not be at liberty to bring mercantile actions (properly so called), unless the above-mentioned conditions were complied with. Now these were actions of a peculiar kind, and were intended for the advantage of people engaged in commerce. They were tried before the Thesmothetæ during the six winter months, from Boedromion to Munychion, while the ships were laid up in harbour. The Judges were compelled to bring them to a final decision within a month; and the losing party might be held to bail for the amount of the judgment recovered. These advantages were reserved for commercial enterprises to or from Athens; for it was the policy of the Athenians to encourage their own trade, and particularly the importation of corn to their own country; and they considered that they were not bound to lend any extraordinary assistance to the enforcing of contracts in which Athens had no interest. The condition that the contract should be in writing was one of obvious policy, the same indeed which has dictated many similar enactments in our own and other legal codes.
That it was a mercantile action which Zenothemis brought against Demon, is expressly stated by the author of the Greek argument, and is to be inferred from the language of the orator. Whether it was maintainable by law, or whether the objection raised by the special plea was a valid one, we are not in a condition to determine. Perhaps the plaintiff might have replied to this effect" I satisfy the requisition of the Athenian law; for had a contract in writing with Hegestratus, and I lent him money on an adventure from Syracuse to Athens. True, I have no contract with Demon; but I am seeking redress against his tortious act, by which I should lose the benefit of my contract with Hegestratus. In effect therefore I am seeking to enforce a contract agreeable to the terms of your statute." We may conceive that the plaintiff was prepared with some such argument as this. The defendant does not seem to place great reliance on his special plea, and, as was usual upon the trial of these pleadings, he enters fully into the merits of the case, and endeavours to show that he has a good defence.
The tortious act complained of, is the defendant's forcible taking of the plaintiff's corn. The forcible character of the taking, like our trespass vi et armis, is a fiction of law, technically necessary to support the action, as explained in the fourth appendix to this volume. The defendant does not dispute that he has committed the formal trespass, but justifies it on the ground that he only took his own property, which it was lawful for him to do. This (on the merits of the case) is the
sole question to be tried, whether the right of property was in the plaintiff or in the defendant.
In this, as in most of the private speeches of Demosthenes, where we see only one-sided statements and arguments, it is difficult even to conjecture on which side lay the truth and justice of the case. Here we may observe, however, that the defendant is fighting an uphill battle, owing apparently to the conduct of Protus, who, after supporting his claim up to a certain point, makes terms (as Demon says) with the opponent, suffers judgment to go by default in the action brought against him by Zenothemis, and keeps out of the way to avoid giving evidence. It is manifest that Protus should have been Demon's principal witness, for it was he who purchased the corn; and Demon labours under a difficulty in making out his case without him. His great point is to show, that the present conduct of Protus is inconsistent with his original acts; and he is helped to some extent by the absence of Protus; for, had he been honestly opposed to him, he would have given evidence for Zenothemis, which he did not venture to do. The motives of Protus in going over to Zenothemis are not made very clear by the orator; but this arises in some measure from our not understanding his exact position with respect to Demon.
As to the mercantile actions, I refer the reader to Meier and Schömann, Attic Process, pages 67, 84, 539, 579. Of the practice upon a Paragraphe, or special plea, I have given an explanation in Volume III. Appendix IX. pages 378, 379.
This speech has come down to us in an imperfect state. We collect from the fragmentary passage at the end, that it was written some time after Demosthenes had entered upon his political career. Its date therefore must have been after B.C. 355.
As I have pleaded, men of the jury, that the action is not maintainable, I wish first to say a word about the laws, according to which I put in the plea. The laws, men of the jury, declare, that actions between shipowners and merchants shall be upon loans to Athens or from Athens,1 and concerning which there are contracts in writing; and if any one sues without being so entitled, his action shall not be maintainable. Now between the plaintiff Zenothemis and myself
1 i. e. Loans for commercial adventures to Athens or from Athens. Pabst "bei dem Verkehre, der von einem andern Orte nach Athen, und von Athen nach einem andern Orte getrieben wird:" Meier and Schömann, Att. Proc. p. 540, explain it thus: "über diejenigen Schuldverschreibungen, welche entweder festsetzten, dass in einem attischen Emporium Waaren als Hypothek eingenommen, oder dass sie in einem solchen abgeladen und verkauft werden sollten, und über die hieraus entspringenden Rechtsverhältnisse für Kaufleute und Schiffs herren." See what I have said in the argument.