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It is worthy also of your consideration, men of the jury, that, if I had been surety, I should never have denied the fact for my argument was much stronger, if I admitted the guaranty and appealed to the articles, which contained the terms of the reference. Evidence has been given to you, that the reference was made to three arbitrators. If there has been no decision by the three, for what purpose should I have denied the guaranty? For, if the judgment was not given according to the articles, I should not be liable on the guaranty. Therefore, men of the jury, I should never have abandoned a good existing defence, if I had been surety, and had recourse to a denial of the fact.1
Again, it has been proved to you in evidence, that, when the articles of submission were made away with by these men, Apaturius and Parmeno sought to have fresh articles drawn up, as if their former agreement was of no effect. Now, when for the judgment that was to be given they endeavoured to get fresh articles drawn, the existing ones being lost, how was it possible that without fresh articles having been drawn there could be either an arbitration or a guaranty? Their disagreement upon this very point prevented the drawing up of another writing, as the plaintiff insisted upon having one arbitrator, and Parmeno required three. But if the original articles were made away with, by which he alleges that I became surety, and new articles were not framed, how can he rightly sue me, against whom he can produce no agreement?
That Parmeno forbade Aristocles to pronounce judgment against him without his co-arbitrators, has been proved to you by the testimony of witnesses. When it appears therefore that the same person has made away with the writing, which contained the terms of arbitration, and says that he has made an award without his colleagues, in spite of the prohibitory notice, how can you honestly condemn me upon the credit of this man? Consider, men of the jury. Suppose Apaturius the plaintiff were now proceeding not against
1 This is a weak argument. A man may have two good defences, or he may set up two false defences. In the first case, there is no reason why he should abandon either of the strings to his bow; and in the second case, the truth of one defence cannot in any degree be established by the fact that another is pleaded.
me, but against Parmeno, to recover the twenty minas, relying upon the judgment of Aristocles, and Parmeno were making his defence here in person, and calling witnesses, to prove first, that Aristocles was not appointed single arbitrator, but only one of three, secondly, that he forbade Aristocles to publish an award against him without his colleagues, and that, after his wife and children had perished by the earthquake, and he in consequence of that misfortune had sailed home, the person who had made away with the articles of submission gave judgment by default against him in his absence-is there one of you who, on Parmeno's making such a defence, would have upheld an award so illegally pronounced? We will not put the case that everything was disputed; let us suppose that the articles were in existence, and that the arbitrator Aristocles was admitted to possess sole authority, and that Parmeno had not forbidden him to make an award against him, but the misfortune had happened to the man before the award was pronouncedwhat adversary or what arbitrator would have been so cruel as not to postpone the proceedings till the man's return to this country? Then, if Parmeno, were it his defence, would be thought to have in every way a better case than the plaintiff, how can you justly give a verdict against me, who have no contract whatsoever with this man?
That my special plea is a good one, that Apaturius has made an unfounded claim against me, and brought his action contrary to the laws, I think, men of the jury, has been made out to you by many proofs. Upon the main questionApaturius will not even venture to assert, that he has any articles of submission. When he falsely tells you that I was inserted as surety in the articles with Parmeno, ask him for the articles; and meet him with this answer, that all people, when they enter into written agreements with each other, deposit them under seal with persons whom they can trust for this express purpose, that, in case of any dispute between them, they may have the means of referring to the document and so clearing up the disputed point. And when a man, removing the evidence out of the way, attempts to deceive you with words, how can you put any confidence in him? But perhaps (for that's the easiest course for persons who mean to cheat and make false claims) some witness will depose
for him against me. If then I proceed against the witness, how will he make out that his testimony was true? By the articles of submission? Then don't let this be postponed; let the person who has the articles bring them here directly. If he says they are lost, where can I, oppressed by false testimony, find the means of refuting it? If the writing had been deposited with me, Apaturius might have alleged that I had suppressed the articles on account of my guarantee; but if the articles were deposited with Aristocles, how comes it, if they have been lost without the plaintiff's knowledge, that, instead of suing the person who received and does not produce them, he makes a charge against me, calling as witness against me the person who has suppressed the articles, whom he ought to regard with displeasure, if they were not conspiring together to play tricks?
I have honestly stated my case, to the best of my ability. It is for you to give a righteous verdict according to the laws.
1 "If he says it is lost, and his witness gives a false account of its contents, what means have I of convicting him of falsehood?"—i.e. what other means but by showing that it is his business to produce the writing? His witness kept it, not I. If he will not produce it, you ought not to believe him."
Such is the argument. In effect it would go this length, that a person who loses a document in his custody, ought under no circumstances to be allowed to give secondary evidence of its contents. We hold that, on good proof of the loss, secondary evidence may be given; and the absence of the document is matter of observation, the force of which depends on the circumstances of the case.
I have understood the words, πόθεν λάβω ἐγὼ τὸν ἔλεγχον καταψευδοHapтuρnbeis, as Wolf did-" Unde ego mendacio circumventus argumenta petam?" And thus Pabst: "Wodurch soll ich denn, von unwahrem Zeugniss umstrickt, Beweisgründe zur Widerlegung nehmen?" Schäfer however thinks that λάβω τὸν ἔλεγχον is to be understood passively, and he translates" quo me argumento falsus testis convincet?"
THE ORATION AGAINST PHORMIO.
CHRYSIPPUS and his partner lent a sum of twenty minas to Phormio, a merchant, upon the following terms contained in a written agreement. Phormio was to take out a cargo of goods (value forty minas) from Athens, in a ship belonging to one Lampis, which was bound for Bosporus (or Panticapæum) in the Crimea. From Bosporus he was to bring a return cargo to Athens, and, if the ship arrived safe, he was to repay the money lent, together with a premium of six minas; the return cargo was to be deposited as security with the lenders, until the twenty-six minas were paid. Phormio bound himself to pay a penalty of fifty minas, in case he did not ship the return cargo. There appears to have been a clause giving him an option, instead of shipping a return cargo, to pay the money due under the contract to Lampis, the shipowner; and it would seem (though there is a good deal of obscurity in the matter), that in this event he was bound to pay something over the twenty-six minas by way of penalty, owing (we may suppose) to the increased risk run by the lenders, since Lampis, though he had a wife and children at Athens, was a foreigner and person of doubtful responsibility. Such was the substance of this agreement, as far as we can make out from the statement of the orator. The reader should compare it with that which is set forth in the speech against Lacritus, which contains many similar terms. For a breach of this agreement an action is brought by Chrysippus and his partner against Phormio. The plaintiffs in support of their case represent, that Phormio committed a fraud upon them in the outset by not taking from Athens a cargo of the stipulated value; that, when he arrived in Bosporus, having found no market for his goods, he was unable to purchase the return cargo, and informed Lampis to that effect; Lampis accordingly left Bosporus without him, but suffered shipwreck, losing his ship and all the goods that he had taken out, but saving his own life by the boat. When Lampis came to Athens, he reported these facts to the plaintiffs, and they, relying on his report, sued Phormio upon the agreement soon after his return to Athens. The parties agreed to refer the case to an arbitrator, before whom Lampis appeared as a witness, and, having been previously tampered with by Phormio, told an entirely different story, representing that Phormio had paid him in Bosporus the money due to the plaintiffs under the agreement, and that he was not in his right mind when he made his
first report to Chrysippus. The arbitrator, not liking to decide the case, sent it to be tried by a jury.
The defence relied on by Phormio may be gathered from what has been already stated. He alleged that he had satisfied the terms of the agreement by his payment to Lampis. The plaintiffs say, that he originally set up the shipwreck as his defence, but afterwards abandoned this point, because the facts were so notorious; and it could not be questioned in point of law, that the loss of the ship would not discharge him from his liability, unless he had shipped a return cargo. If however the alleged payment to Lampis at Bosporus was a good discharge under the agreement, the loss of the ship became immaterial, as regards Phormio, though it might perhaps have been important as affecting the liability (if any) incurred by Lampis to the plaintiffs. In this case the main question was, whether the money was really paid to Lampis or not; and the plaintiffs urge various arguments to prove that the payment never was made. The defendant raised also a technical objection by special plea, similar to that in the case of Zenothemis, viz. that a mercantile action did not lie under the Athenian law, because there was no subsisting contract between the plaintiffs and himself. To this the plaintiffs reply satisfactorily enough, that the objection was admissible only where there had been no contract at all, not where the defence was that the terms of the contract had been performed; for such a defence as that there was no occasion for a special plea. As the case was brought to trial upon the special plea, the defendant began, and the speech which follows was spoken by the plaintiffs in answer to the defendant's opening. It appears that each of the plaintiffs addressed the jury in turn, Chrysippus delivering the first half of the speech, and his partner the latter half.
We gather from internal evidence, that the date of this oration was about two or three years after the capture of Thebes by Alexauder, at which time Demosthenes, having no political matters to attend to, had leisure to resume his old occupation of a speechwriter.
I SHALL ask you, men of the jury, only what is just; to hear us, as we take our turns of addressing you, with good will, considering that we are persons wholly inexperienced in law, and, though we have for a long time frequented your mart of commerce and advanced loans to various people, we have never until now appeared in any lawsuit before you, either as plaintiffs or defendants. And be assured, men of Athens, we should not now have commenced our action against Phormio, if we believed that the money which we lent him had been lost in the shipwrecked vessel: not so devoid are we of shame, nor so unaccustomed to sustain losses. But as many people reproached us, and especially the merchants who were in Bosporus with Phormio, who knew that he had