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That I have pleaded in accordance with the laws, that the action is not maintainable, I think has been sufficiently proved; but you shall hear the contrivance of that cunning man, Aristophon, who has arranged the whole plot. When they saw that, according to the facts, they had no ground to stand upon, they open a treaty with Protus, and persuade the man to surrender the case to them. They had, it seems, been trying that from the beginning, as now has become apparent to us, but they had not been able to prevail on him. For this fellow Protus, while he expected to get a profit out of the corn imported, stuck close to it, and thought it better to make a profit for himself and pay us our just dues, than

enter in a league with them, and thus to make them sharers in the advantage and do us an injury. But when, after his arrival here and some negotiation about these matters, corn had fallen in price, he suddenly formed other views. And at the same time, O Athenians (for the whole truth shall be told you), we his creditors began to quarrel and be harsh with him; as the loss on the corn was about to fall on us, and we complained that he had brought us a pettyfogging rascal instead of our money. For these reasons, and being by nature (as we may presume) not very honest, he goes over to these people, and consents to let judgment go by default in the action, which Zenothemis brought against him before they had come to terms. For, had he released Protus, his demand against us would at once have been shown to be vexatious : and Protus would not consent to a judgment by default while he remained at Athens; for then, in case they performed their agreement with him-well and good—if they did not, he might set aside the judgment by default. But why do I dwell on these particulars ? If Protus actually did what the plaintiff has put in his plaint, he deserves, in my opinion, not only to have a judgment against him, but to suffer death. If in the midst of tempest and distress he was drinking so much wine as to be like madness, what punishment is too severe for him? Or if he was stealing papers, or opening them clandestinely? With respect to these matters, however, you will form your own private

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opinions. But don't mix up the proceedings of that action with mine, Zenothemis. Îf Protus has done you injury by word or deed, you have, as it seems, satisfaction: none of us opposed you, or seeks now to deprecate the consequences. If, on the other hand, you have proceeded against him vexatiously, that most surely is no business of ours. But the man is out of the way. Yes ; through you ; that he may avoid giving evidence on my behalf, and that you may now say against him what you please. For, had not the judgment by default been your contrivance, you would at the same time have summoned him and held him to bail before the Polemarch ; and, if he had given bail, he would have been compelled to stay, or you would have had responsible persons to look to for your damages ; if he had not given bail

, he would have gone to the lodging. Now however, having entered into a combination together, Protus expects by your assistance to escape payment of the deficiency? which has been created, and you by making a charge against him to obtain possession of my property. Here is the proof—I shall summon him as a witness : you neither held him to bail, nor will summon him as a witness now.

There is yet another way in which they hope to deceive and impose on you. They will accuse Demosthenes, and say that I relied on his assistance when I dispossessed the plaintiff

, imagining that this charge will obtain credit because he is an orator and a person of notoriety. Demosthenes, men of Athens, is certainly my blood-relation, (I swear by all the Gods I will tell you the truth)-I went and entreated him to support and assist me as far as he was able : “Demon," said he, “ I will do as you desire : it would be cruel to refuse. At the same time you must consider both your own position and mine. Since I began to speak on public affairs, I have never interfered in any private cause : and even in politics I have retired from business of this kind. ..

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[The rest is lost.] * See ante, page 35, note 1.

2 “Defectus ob imminutum pretium frumenti; quod si vendatur, non redeat quantum debetur creditori."-Schäfer.

How Protus could be a gainer by the alleged fraud, we have not the materials for making out. For this, we ought to know the exact nature of the contract between Demon and Protus, and also the extent of the fall in the price of corn.

159

THE ORATION AGAINST APATURIUS.

THE ARGUMENT.

APATURIUS, the plaintiff, sues the defendant, whose name does not appear, for twenty minas, alleged to be due from him upon a guaranty which he had given for the performance of an award by one Parmeno. The defendant denies that he ever gave such guaranty, stating that another person, and not himself, was Parmeno's surety. He alleges also, that the award given against Parmeno was illegal and fraudulent, having been made contrary to the terms of the reference between Apaturius and Parmeno; for the reference was to three arbitrators, and the award was made by one only, acting in collusion with A paturius. The defendant put in three special pleas : first, a plea similar to that in the last case; secondly, that there had been a release of all causes of action between the plaintiff and himself; thirdly, that the action was brought too late, as guarantees were by an Athenian statute declared to be in force for one year only. The first of these pleas seems hardly to apply to the

present case, (see the argument to the speech against Zenothemis). The release appears to have been given previously to the alleged guaranty, and to have related to other matters. And the defendant does not strongly insist upon the third special plea. We have not the Athenian statute (which he refers to) before us, but, the defendant intimates that he did not much rely upon it, we may reasonably conjecture that the law afforded some answer to this objection. The case was brought to a hearing (according to the practice) upon the special pleas; but the defendant, not much relying upon them, enters into the general merits of the case; and his chief point of contention is, that the award was invalid for the reason above mentioned. He gives a history of antecedent transactions between the plaintiff and himself, partly to explain the origin of his connexion with him, and partly with a view to show, that the present proceed• ing was got up from malicious motives. The law, men of Athens, declares that merchants and shipowners shall have their actions before the Judges, if any wrong is done them in their trade, either

upon a voyage from Athens or upon a voyage to Athens; and it enacts, that the wrongdoers shall suffer imprisonment until they have paid what is adjudged against them, so that wrong may not lightly

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be done to commercial people. To those however who are sued upon non-existent contracts1 the law gives the protection of a special plea, so that vexatious demands may be prevented, and the actions be confined to such merchants and shipowners as are in reality injured. And many defendants in mercantile suits have before now pleaded according to this law, and have come into court before you and shown that their opponents were making false and vexatious charges under the pretence of trading. Who the person is that has conspired with the plaintiff against me and got up the present proceedings, will in the course of my address become apparent to you. As Apaturius however is making an unfounded charge against me and suing me contrary to law, as there has been a mutual release and discharge from all the engagements entered into between him and myself, and there is no other loan transaction between us, either on sea or land security, I have pleaded that the action is not maintainable, according to these laws which I produce :

[The Laws.] That Apaturius has commenced his action against me contrary to these laws, and has made an unfounded demand, I shall show you by many proofs. I, men of the jury, have been for a considerable period engaged in foreign trade, and up to a certain time I made voyages myself; it is not quite seven years since I gave up going to sea, and now, having a moderate capital, I make it my business to lend it on maritime adventures. As I have been to many places and constantly attended the marts of commerce, I am acquainted with most of the seafaring people, and I am very intimate with these men from Byzantium, through having stayed so much there. My position being such as I have told you, about three years ago the plaintiff made a voyage to Athens with his fellow-countryman Parmeno, who is a Byzantine by birth, but exiled from his country. The

1 That is, as Pabst expresses it more fully,—“die man wegen Forderungen vor Gericht stellt, worüber keine schriftlichen Contrakte vorhanden sind."-See the opening of the last speech, and the argument.

2 Pabst—“und ich auch keine neue Verbindlichkeit durch eine Schuldverschreibung gegen ihn eingegangen habe, weder im Seehandel, noch in Landhandelsachen.”

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plaintiff and Parmeno came to me on the exchange, and began to talk about money. It happened that the plaintiff owed a sum of forty minas on his ship, and the creditors were pressing for payment, and were about to seize the ship, as being forfeited by his default. He being in distress, Parmeno agreed to give him ten minas, and he requested me also to advance him thirty minas, alleging that his creditors (who coveted his ship) had slandered him on the exchange, their object being to get possession of the ship by reducing him to absolute insolvency. I happened to have no ready money by me, but, being on good terms with Heraclides the banker, I persuaded him to lend the sum required and take

I me as surety. Just after the thirty minas had been procured, Parmeno had a quarrel with the plaintiff; but having agreed to advance him ten minas, and having given him three of them, he was compelled, on account of the money which he had parted with, to let him have the remainder also. For the reason mentioned, however, he did not wish to conclude the loan in his own name, but requested me to make it as safe for him as I possibly could. So I received the seven minas from Parmeno, and for the three, which the plaintiff had previously obtained from him, I got the plaintiff to transfer his obligation to me;2 then I take a mortgage of the ship and the slaves, till he should repay as well the ten minas which he had received through me, as the thirty for which he had made me his surety to the banker. Hear the depositions that prove these statements :

[The Depositions.] In this manner Apaturius the plaintiff got rid of his creditors. Not long afterwards, the bank having been broken, and Heraclides having been obliged for a time to keep out of the way, the plaintiff endeavour's clandestinely to send the slaves from Athens and remove the ship out of the harbour. From this arose my first misunderstanding with him. For

1 Pabst—"legten Beschlag auf das Schiff als Unterpfand, weil der Zahlungstermin nicht eingehalten worden war.'

: The commentators have not been happy in their interpretations of dybowodoyno áuevos apds toûtov. Reiske, in his Index, imagines there was 8 proceeding before the magistrate. Pabst omits these words. Auger is near the meaning : “mettant sur mon compte les trois qu'il avoit déja données."

VOL. IV.

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