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to the plaintiff, I am myself not ignorant of that class of people, and I don't much like them; at the same time I never defraud nor bring vexatious actions against them. I cannot see however why a man who has traded as I have, going to sea and incurring risk, and who has lent at interest his small profits, in order to accommodate his friends, and that his money may not be imperceptibly frittered away, should be set down as belonging to that class: unless you, Pantænetus, contend, that whoever lends money to you ought to incur the detestation of the public.
Please now to read the depositions, and let the jury see what sort of a person I am to those who lend me money and to those who ask my assistance.
Such is the character which I, the fast walker, bear; and such is yours, Pantænetus, who walk gently. However, with respect to my gait or my address, men of the jury, I will speak the whole truth to you unreservedly. I am fully sensible-it has not escaped me that I am not one of a class who are favoured by nature in these respects, and possess qualities advantageous to themselves. If I annoy people by doing what is of no use to myself, it is a misfortune, as far as it goes, undoubtedly. But what is to be the consequence? If I lend money to this or that person, must I be sentenced to a penalty for it, in addition to my other loss? Heaven forbid ! The plaintiff cannot show that there is anything base or vicious about me; and among you all there is not one who knows anything of the sort against me. As to these external qualities, each of us, I imagine, is as nature happened to make him; and it is hard to contend with nature, when one has these defects, (or there would be no difference between man and man,) though it is easy enough to remark and criticise them in another. But what has all this to do with our dispute, Pantænetus? You have sustained many cruel injuries. Well; you have had satisfaction. Not from me? No; for I did you no wrong: otherwise you would never have released me, nor forborne to sue me when you determined on commencing proceedings against Euergus, nor requested the man who had so cruelly and grievously wronged you to take on himself the character of vendor. And besides,
how is it possible that I, who was not present and not in the country, can have done injury to you? 58. But let it be granted to him, that he has sustained the utmost possible injustice, and that all his present allegations are true this, I presume, you will all acknowledge, that other people have suffered wrongs before now, of a more grievous nature than pecuniary wrongs; (for example, unintentional homicides, and outrages on what is sacred, and many similar things, are perpetrated ;) yet in all these cases the injured parties are finally and conclusively barred, when they have come to a settlement and given a release And this rule of justice is so universally binding, that, when a man has convicted another of intentional homicide and clearly proved him to be tainted with pollution, yet, if he afterwards condones the crime and releases him, he is no longer entitled to force the same person into exile. Nor again, where the murdered man has released his murderer before he died, is it lawful for any of the relations to prosecute; but those whom the laws sentence, upon conviction, to banishment and exile and death, if they have been released, are by that word "release at once absolved from all penal consequences. Then upon questions of life and all that is most precious shall a release be valid and binding, but on questions of money and claims of minor importance shall it be of no effect? Surely you will never allow this! The worst would be, not my failing to obtain justice before you, but your abolishing in our time a sound rule of practice, established ages ago.
THE ORATION AGAINST NAUSIMACHUS.
ARISTECHMUS, one of the guardians of Nausimachus and Xenopithes, was sued by them, after they attained their majority, for rendering a false account and breach of his trust. He compromised the dispute with his wards for three talents, and received from them a release. Soon after this he died. Fourteen years afterwards the wards made a claim upon his four sons, alleging (as it would seem) that the release did not extend to such part of their estate as was received subsequently to the compromise, and that certain outstanding debts had been subsequently got in by Aristechmus, or by the person whom he left to be guardian of his children. The total sum claimed from the four children was four talents; but, in commencing
legal proceedings, this demand was split by the claimants into eight, each of them bringing an action against each of their guardian's sons for thirty minas. The particular claim, which forms the subject of the present action, appears to have been a debt of one hundred staters, alleged to have been paid by a person in Bosporus, and which, together with the interest, might be estimated as equivalent to thirty minas. This view of the matter does not agree with that which is taken by Reiske and Schäfer; as the reader will see from the first of my notes to the oration.
Of the circumstances of the case we have but a meagre account; as the defendant, for whom this present speech was composed, relies mainly upon his special pleas, setting up 1, the release given to his father; 2, the statute of limitations. He shows however some reasons for inferring, that no part of the ward's estate had been got in by his father or guardian after the compromise, and that the demand is altogether unfounded and vexatious.
As the laws, men of the jury, have allowed a special plea, where a man sues after having given a release and discharge, and as my father has had both of these from Nausimachus and Xenopithes, who have commenced proceedings against us, we have pleaded, as you heard just now, that the action is not maintainable. I shall ask of you all what is just and reasonable; first, that you will give me a fair hearing; secondly, if you think that I am wronged and made defendant in an unfounded action, that you will give me the support which I am entitled to.
The damages laid in the action are, as you have heard, thirty minas; but the sum for which we are actually sued is four talents. For, there being two of them, they have commenced four actions against us, all for the same amount, each for three thousand drachms damages: and now, upon a nominal demand (in the plaint) of thirty minas, we are brought to trial for that large sum of money.1
1 Reiske's explanation of this, (which, strange to say, has been approved of by Schäfer,) is as follows:
"Nausimachus et Xenopithes (junior) fratres, filii Nausicratis, a filiis Aristaechmi vitâ dudum defuncti, qui tutor ipsis olim fuisset, actione hæreditatis imminutæ aut æris alieni pupillis debiti, a debitoribus quidem redacti, a tutore autem pupillis non persoluti, repetebant, ab unoquoque filiorum Aristaechmi, qui quatuor erant, quaterna talenta et praeterea singula totidem (h. e. quatuor) senitalenta. Petebant itaque filii Nausicratis a filiis Aristaechmi universe octodecim talenta. Nam quatuor talenta sibi aiebant deberi ut aes interceptum; sed sin gulares hoc eodem de aere alieno actiones in singulos illos quatuor
The vexatious proceedings of these men, and their crafty designs against us, you will learn from the facts of the case. But he shall first read you the depositions, showing that they released our father from the charges which they made in respect of his tutelage; for it is on this ground that we pleaded our plea in bar of the action. Please to read these depositions.
That they commenced actions against their guardian for breach of duty, and that they released those actions, and have received the sums of money agreed upon, you hear, men of the jury, from the witnesses. That the laws do not allow people to sue over again for matters which have been thus settled, I take it, you are all aware without my telling you; however, I should like to read you the statute itself. Read the law.
You hear the law, men of the jury, plainly declaring the several cases in which there shall be no actions. One of them (quite as obligatory as the rest) is, that no man shall sue for claims of which he has given a release and discharge. Yet, although the release has been thus given in the presence of divers witnesses, and although the law plainly absolves us, fratres instituebant, et litem unicuique praeterea semitalenta aestimabant."
This extraordinary misconception arises partly from the learned commentators not having observed, what is undoubtedly to be collected from the text of Demosthenes, that each of the sons of Nausicrates brought an action against each of the sons of Aristæchmus; making eight actions in all, and not four, as Reiske supposes. That this is so, is indeed apparent from the passage now before us; but is made abundantly clear by the words of the record cited in page 988-apаδόντος ἐμοὶ τοῦ ̓Αρισταίχμου. The supposition that four talents are claimed in each action, in addition to the thirty minas, is pure imagination, there being nothing in Demosthenes to warrant it. Auger and Pabst have both understood it rightly. I subjoin their notes:
"Il y avoit quatre fils d'Aristechme; les deux adversaires redemandoient chacun à chaque fils de leur tuteur trois mille drachmes, ou trente mines; à eux deux ils redemandoient donc en tout buit fois trente mines, ou quatre talents."
"Da es zwei Kläger waren und vier Beklagte, und da jeder Kläger an jedem Beklagten dreissig Minen forderte, so kommen zwei hundert und vierzig Minen oder vier Talente heraus."
these men have arrived at such a pitch of impudence and audacity, that after the lapse of fourteen years from the time when they released our father, and twenty-two years from the commencement of the proceedings against him,1 and after the death of our father, with whom they made the compromise, of the guardians, who after his death had the management of our property, of their own mother, who was acquainted with all these particulars, of arbitrators and witnesses and (I may say) almost everybody, looking on our inexperience and necessary ignorance of the facts as a godsend for themselves, they commenced these actions against us, and dare to make an assertion which is neither true nor honest. They say that they did not sell their patrimony for the money which they received, nor did they give up their estate, but that all the debts and furniture, and indeed all the money that was left to them, is still theirs. I know by report, that Xenopithes 2 and Nausicrates left their whole property in outstanding debts, and possessed very little tangible property; and that, after the debts had been got in, and a few articles of furniture and some slaves had been sold, their guardians purchased the lands and lodging-houses, which these men received from them. If there had been no dispute about these matters before, if there had been no legal proceedings for mal-administration of this property, it would have been a different case: but as these men charged our father with general breach of his guardianship trust, and, after taking legal proceedings upon such charge, recovered compensation, all these matters have been released. For of course these men did not prosecute their actions for the mere name of "breach of trust," but for the money; nor did the guardians buy off the name only, but the claims, for the they paid. That for not a particle of the debts which my father got in before the discharge, or (in short) of the money which he
1 yeyρaμμévoi-Reiske-"patrem male gesta tutela detulerunt ad judicem reumque egerunt." Pabst-"sie ihn belangt hatten."
Schäfer observes "Mirum inter petendum et transigendum octos annos interfuisse." It seems strange also, that the term yeypauuévoi should be applied to a civil action. And therefore I am inclined to think it has reference to a public prosecution, brought against Aristechmus during the minority of his wards. See page 991, (orig.) 2 The uncle of the plaintiff.
3 The father of the plaintiff.