not lost his money in the wreck, we thought it would be cowardly not to seek redress for the wrong which the defendant had done us.

With regard to the special plea, I shall be very brief. These men do not absolutely deny that there was any contract on your exchange, but say that there is no contract still subsisting against them, because they have committed no breach of the terms in the agreement. Now the laws, according to which you have to decide, do not use this language: they allow the defence to be pleaded, when there has been no contract at Athens or to the Athenian port; but if a man, admitting that there was a contract, contends that he has performed all the terms of it, they require him to make his defence on the merits, not to raise an objection by pleading.1 However, I doubt not that by the facts of the case I can show the action to be maintainable. Pray consider, Athenians, what is admitted by these men themselves, and what is disputed: that will be the best way to try the question. They admit that they borrowed the money and that they secured the loan by an agreement; but they say that they paid the gold to Lampis, the servant of Dion, in Bospo

rus.

We shall show, not only that he never paid, but that it was not even lawful for him to pay.2 It is necessary to explain to you a few things that happened at the outset.

I, men of Athens, lent to Phormio the defendant twenty minas upon a voyage to Pontus and back, on the security of the single cargo, and I deposited an agreement with Cittus

1 Literally "not to accuse the plaintiff"-because by the practice, when the defendant raised an objection by plea to the admissibility of the action, or pleaded (as we might say) to the jurisdiction, he became a sort of plaintiff or actor.

See Vol. III. Appendix ix. page 378.

The reader will perceive how difficult, and often impossible, it is to convert the legal expressions into our own language.

2 This they do not show, but seem to admit the contrary.

If the text be correct, I think that Seager has indicated the true explanation. The transaction between Chrysippus and Phormio was this: the loan with interest was to be repaid at Athens if the ship returned safe, and the goods purchased by Phormio in the foreign port and brought home to Athens were to be delivered to Chrysippus as security until payment. The goods taken out by Phormio were not (strictly speaking) a security, because neither Chrysippus at Athens nor his agent in the foreign port was to exercise any control over them, so

the banker. The agreement requiring that he should lade the ship with a cargo of the value of four thousand drachms, he does a most scandalous thing; he immediately borrows fresh sums in the Piræus unknown to us, four thousand five hundred drachms from Theodorus the Phoenician, and a thousand from the shipowner Lampis. And when he ought to have purchased at Athens a cargo worth a hundred and fifteen minas, if he meant to perform to all his creditors the covenants contained in their agreements, he purchased only a cargo of five thousand five hundred drachms, including the victualling; his debts being seventy-five minas. Such was the commencement of his fraud, men of Athens; he neither furnished the security, nor put a cargo on board to the amount of the loan, although the agreement positively required him to do so. Here, take the agreement:

[The Agreement.]

as to prevent Phormio from disposing of them as he pleased, although the agent was directed by Chrysippus to keep an eye upon them and to watch Phormio's proceedings. Therefore the money is said to have been lent on the security of the return cargo only. It is true that the outward cargo, if duly shipped, was in one sense a security to Chrysippus, as it showed that his money's worth was on board, and it enabled Phormio to purchase the goods to be hypothecated under the agreement. But it was not a security in the strict sense of the words in the present clause.

Schäfer objects that érépa cannot be used in this sense without the article, but when we look at the well-known opposition between the expressions ἑτερόπλοος and ἀμφοτερόπλοος, it is not improbable that in the language of merchants the addition of the article would not be necessary to convey the sense supposed.

Pabst, who translates these words, " mit einem zweiten Pfandrechte," writes in a note as follows:-"Möglich wäre es, die Stelle von einer Nachhypothek zu verstehen. Jedoch erklärt Platner, Att. Prozess. II. S. 354. das andere Pfand für eine weitere Hypothek, ausser den geladenen Waaren."

Penrose, in his edition of this oration, is inclined to adopt Reiske's first interpretation, viz. that ἑτέρᾳ is equivalent to ἑτέρᾳ τοσαύτῃ— "security to double the amount." He writes thus:—

"I do not think the objection to Reiske's first way of taking it insuperable, which makes by far the best sense. Compare in the next. speech, at the end of p. 928, ἐδανείζοντο παρ ̓ ἡμῶν τὰς τριάκοντα μνάς, ὡς ὑπαρχούσης αὐτοῖς ὑποθήκης ἑτέρων τριάκοντα μνῶν, ὥστ ̓ εἰς τάλαντον ἀργυρίου τὴν τιμὴν εἶναι τοῦ οἴνου καθισταμένην. There is still a fourth way in which it may be understood, on a renewed security."

Now take the entry of the customs-officers and the depositions :

[The entry of the customs.]

[The Depositions.]

When he arrived at Bosporus, having letters from me, which I gave him to deliver to my servant, who was passing the winter there, and to a certain partner, to whom I had written apprising them of the sum which I had lent and the security, and desiring them, as soon as the goods were unshipped, to inspect and keep an eye upon them, the defendant does not deliver the letters which he had received from me, so that they might know nothing of what he was doing; and finding business in Bosporus very slack, on account of the war which had broken out between Parisades and the Scythians, and hardly any market for the cargo which he had brought, he was in great embarrassment; for the creditors pressed him, who had lent on the outward voyage. When therefore the shipowner required him according to the agreement to ship the goods purchased with my money, this man who now says he has paid the debt replied, that he could not ship my goods, because his stuff1 was unsaleable; and he desired him to put to sea, and said that he himself would leave in another ship when he had disposed of his cargo. Please to read this deposition :

[The Deposition.]

After this, men of Athens, the defendant was left in Bosporus; Lampis put to sea, and was shipwrecked not far from the port; for after his ship had already been overloaded, as I am informed, he took upon the deck a thousand hides, which in fact caused the loss of the vessel. He himself was saved in the boat with the other servants of Dion; but he 30 lost more than three hundred lives besides the cargo. There 66 ρώπος is described as omne genus mercis vilioris," and Reiske's notion is not unfounded:-"vocabulum fastidii et contemptus satis decet stomachum mercatoris a frigore mercium suarum offensi."

1

2 Penrose, in his edition of this speech, has the following note, communicated by a naval friend :

"It is difficult to account for so large a number, unless we suppose these to have been slaves, of which a great supply came from Thrace. It must not be supposed that a ship large enough to carry three hundred slaves, at a time when there was no motive for stowing them

was much grief in Bosporus, when they heard of the loss of the vessel; everybody said how lucky this Phormio was, that he had not gone out with the other passengers or embarked anything in the ship: and Phormio expressed himself to the same effect as the rest. Read me these depositions :

[The Depositions.]

Lampis himself, to whom he says he paid the gold, (pray attend to this,) as soon as he returned to Athens after the shipwreck, upon my going and asking him about these matters, said that Phormio did not ship any goods according to our agreement, and that he had not received the cash from Phormio in Bosporus. Read me the deposition of the who were present :

[The Deposition.]

persons

When the defendant Phormio had returned to Athens, (he arrived in another ship,) men of the jury, I went to him and demanded payment of the loan. And at first, men of Athens, he never made the statement which he now makes, but always promised to pay: but, after he had been talking with these people who are now backing and supporting him, he was no longer the same person, but quite different. When I perceived that he was endeavouring to cheat me, I went to Lampis and told him, that Phormio was not doing the right thing, and not intending to pay his debt; at the same time I asked him if he knew where Phormio was, that I might give him a summons. He desired me to follow him, and we find the defendant by the perfumers' shops; and I, having witnesses with me, summoned him and Lampis, men of as close as at present, would feel the weight of a thousand hides. The loss of the ship is rather to be accounted for by the top-hamper which a thousand hides being stowed on deck in addition to the cargo would occasion,--for even now vessels are frequently placed in jeopardy, and many have been lost, from what is termed the deck load. In this case the hamper would not arise so much from the weight as the bulk of the hides, which would hold much wind, as well as alter the trim.” I subjoin an extract from Abbott on Shipping:

"The French Ordinance in express terms excludes from the benefit of general average goods stowed upon the deck of the ship; and the same rule prevails in practice in this country. Goods so stowed may in many cases obstruct the management of the vessel, and, except in cases where usage may have sanctioned the practice, the master ought not to stow them there without the consent of the merchant."

Athens, was close by when he was summoned, and never ventured to say that he had received the cash from the defendant --never said, as one might have expected-" Chrysippus, you're mad! what are you summoning this man for? he has paid me the money.' And not only did Lampis never open his lips; but the defendant himself did not think proper to say a word, though Lampis was present, to whom he now declares he has paid the money. Surely, men of Athens, it was natural for him to say-" What are you summoning me for, man? I have paid the money to this person who is standing here"—and at the same time to call on Lampis to vouch for him. However, neither of them uttered a syllable on that occasion. To prove the truth of my statements, take the deposition of the persons who witnessed the summons:

[The Deposition.]

16. Now take the plaint in the action which I commenced against him last year. It is one of the strongest proofs that up to that time Phormio never said he had paid the money to Lampis:

[The Plaint.]

This action I commenced, men of Athens, upon no other ground than the report of Lampis, who denied that Phormio had shipped the goods or paid him the money. Don't suppose, men of Athens, that I am so senseless, so utterly mad, as to have drawn such a plaint as this, when Lampis (who must have disproved my case) admitted that he had received the money.

Again, men of Athens-here is another point. These men themselves put in a special plea last year, and did not venture to assert in the plea that they had paid the money to Lampis. Take this special plea :

[The Special Plea.]

You hear, men of Athens. It is nowhere averred in the special plea, that Phormio had paid the cash to Lampis, although I had carefully inserted in the plaint, which you heard just now, that he neither shipped the goods nor had paid the money. What other witness then need you look for, when you have so strong a piece of evidence from these men themselves?