Page images

theirs ; and surely it is more just that we should have what belongs to us, than that they should have it.

I see no reason to add anything more; as you seem fully to understand what has been said. Pour out the water.



THE ARGUMENT. The proceeding which gave rise to the present speech was one of a

singular nature, for which no parallel can be found in our own law, but for which the usages of Attic life seem to have afforded a reason

able ground. Mantias, the father of the plaintiff, was a citizen of the Acamantian

tribe and township of Thoricus. He married a daughter of Polyaratus, a widow, with whom he received a portion of a talent, and by whom he had two sons, the plaintiff, and another who died young. The plaintiff was brought up in his father's house, named Mantitheus, and registered in that name in his township. Mantias at the same time had a mistress, named Plangon, the daughter of Pamphilus, an Athenian citizen. By her he had two sons, whom for many years he did not acknowledge; but after his wife's death he seems to have married Plangon, and her eldest son, (the present defendant,) soon after he had grown to manhood, took legal proceedings to establish

his own and his brother's birthright. The claim was resisted, and the dispute referred to arbitration; when

Plangon resorted to an extraordinary artifice to procure a judgment in her son's favour. She persuaded Mantias to stake the cause upon an oath to be tendered to her before the arbitrator, on the terms that, if she swore the children were his, he should adopt them, if she declined to swear it, he should be quit of them altogether; and she gave him a solemn promise on oath, that she would decline the oath when tendered to her, stipulating to receive a sum of money, which was deposited for her in the hands of a third party. Notwithstanding this promise, when the oath was tendered to her before the arbitrator, she accepted it, fathered the children on Mantias, and

caused the award to be pronounced against him. (As to the tendering of oaths, the reader is referred to Vol. III. Ap.

pendix X. page 384.) The award being under the circumstances conclusive against him,

Mantias took the sons of Plangon to the meeting of his clansmen at the Apaturia in the usual way, and entered them in the register, the elder in the name of Bootus, the younger in that of Pamphilus. A few years after, and before he had introduced them to the members of his township, Mantias died. Bootus, dissatisfied with the name given to him by his father, which was that of his maternal uncle, took the step which led eventually to the present action. He went


to the townsmen of Thoricus, and got them to register him in the name of Mantitheus, alleging that he, being the eldest brother, was entitled to the name of his paternal grandfather. The exact time when this took place is not mentioned; nor is the sequence of events by any means clear. (On the subject of Attic names, see Becker's Charicles, Excursus I. page 219. As to the registers of the clan and the township, see Vol.

III. page 274, and the first Appendix to this volume.) Mantitheus, the present plaintiff, after his father's death, received his

half-brothers into the house, and consented to share the inheritance with them. He claimed however a talent out of the estate, as the marriage portion of his mother. Thereupon Bootus set up a counterclaim of a hundred minas, as the portion which Mantias had received with his mother Plangon. Under the advice of friends, they divided among them the bulk of the effects, and left the house as a reserve fund, to abide the issue of this dispute. I have said that Plangon seems to have been married to Mantias after

his first wife's death, which happened many years before his own. This fact is not indeed mentioned anywhere in the plaintiff's speech; he says on the contrary, that even after his mother's death he would not bring Plangon into his house, and he insinuates that there never was any marriage between them; but he does not expressly deny it, and from the absence of any express denial, as well as from the concessions of the plaintiff himself, the fact of Plangon's marriage must, as I conceive, be inferred. For, had she never been more than a concubine, her sons could have had no heritable rights. Mantitheus having commenced a suit against his half-brothers for his

mother's portion, and they a similar one against him, both were referred to the arbitration of one Solon. A good deal of time having been wasted, through the wilful delays (as the plaintiff Mantitheus alleges) of his opponents, Solon died without having made any award. The causes were then referred to another arbitrator, who gave judg. ment in both for Mantitheus. In that where Bootus was plaintiff he had attended, but offered no evidence to support his case; in the other he suffered judgment to be given against him by default. He disputed however the legality of the latter judgment, on the ground that he had been sued in the wrong name; and Mantitheus found himself compelled to commence a fresh suit against him in the name which he had improperly assumed. This (as we learn from the second speech against Bæotus, p. 1013,) occurred in the eleventh year after the father's death. Meanwhile Mantitheus had been annoyed in various ways by Bootus

and his brother. They had made other pecuniary demands upon him, and succeeded in recovering them. Bæotus, having on one occasion come to blows with him, cut himself afterwards in the head, and charged his brother before the Areopagus with having maliciously wounded him. He conducted himself so profligately, and kept such bad company, that Mantitheus, having a grown-up daughter, was compelled

to leave the house which the father had left them. The identity of names had been attended with some unpleasant occurrences, besides that already mentioned. Mantitheus having been elected to a military command, Boeotus pretended it had been conferred on himself. A judgment having been recovered against Bootus in the assumed name, he gave out that his brother was the party liable. A charge of desertion had been preferred against Bootus, and the plaintiff had been summoned upon it. And the defendant's general conduct was so extravagant and reckless, that his brother was in continual fear of being mistaken for him. Under these circumstances Mantitheus commenced an action against

Boeotus, in order to compel him to abandon the name which he had assumed. The arguments in the plaintiff's speech are chiefly upon the law of the case, to show that the assumption of his name was a wrongful act, which subjected Bootus to an action. He contends on general grounds, that a son had no right to assume a

different name from that which his father had given him; that such a thing as two brothers having the same name was wholly unprecedented; this being so, as the facts of the case established that he (the plaintiff) had by the gift of his father a prior title to the name of Mantitheus, the defendant's usurpation of it was illegal. Even were Bæotus the elder by birth, which the plaintiff denied, the seniority in regard to name belonged to the plaintiff; for Boeotus was only to be regarded as the son of Mantias from the time of his

introduction to the clansmen. There were reasons both of a public and a private nature, why the

action ought to be maintainable. It was manifest, as both plaintiff and defendant were sons of the same father, if their personal names were the same, there would be no means of distinguishing them. Each would be called “Mantitheus son of Mantias of Thoricus." This would lead to ambiguity and confusion. If either of them were nominated to any public office, such as that of Choragus or Gymnasiarch, it would be uncertain which of the brothers was intended; each might endeavour to shift the burden on the other, and the public service would be neglected. Some of the most important departments of the administration might suffer in this way; as the collection of the property-tax, or the musters of troops. When the nomination was to an office of honour or profit, as to that of Archon or Juror, mischief would follow from the opposite endeavour. Each would contend that he himself was the party chosen; and this

would lead to unseemly wrangling and contests at law. The mischiefs of a purely private character were no less serious. The

pseudo-Mantitheus might commit offences or get into scrapes, of which the blame or the penalty might fall upon the real Mantitheus. Nothing was more likely, when they looked at the persons with whom Bæotus associated, and his vicious and profligate course of life. Should a civil or criminal charge be brought against him, his brother, from the confusion of names, might become amenable to legal process. If a judgment were recorded against the pseudoMantitheus, the real Mantitheus might be liable to execution, or become a state-debtor; or supposing it to be known at the time who the real debtor was, after the lapse of some years, if the debt were not paid, the two brothers might be confounded, and the debt of Bæotus might be enforced against the plaintiff's children. Again,

some private enemy of Bæotus, knowing how his affiliation had been procured, might hereafter denounce him as an alien, and indict him for usurping civic rights. Many similar cases might be supposed. The plaintiff

, so long as he had the same name, was continually liable to be implicated in the defendant's misconduct or misfortune. Some annoyances had already occurred; others were likely to occur again ; and it was not just that he should be exposed to such perils. The modern reader may be surprised, that a complaint of this kind

should have been brought before the Athenian tribunal. In our own times it is easy to designate an individual in such a way that he cannot be mistaken. John Smith is distinguished from numerous others who bear the same name by being described as Johu Smith of number 100 Cheapside in the City of London tailor.” But in Athens the custom was to describe a man only by his own name and that of his father and his township. This was his address, his legal title and addition; this, and nothing further, was entered in the public records and documents. (See the first Appendix to this Volume.) It became desirable therefore to avoid the multiplication of names; and there was no great difficulty in avoiding them in a

small community, such as that of an Athenian township. Although there is no parallel in our own law for an action such as the

present, there are proceedings to prevent acts of injustice of a somewhat similar character. I allude to applications for an injunction to prevent the adoption of a name or title for a journal or periodical, which has already been assumed by another journal or periodical; or to restrain the piracy or imitation of labels to a patent medicine,

or the like. The form in which this action was presented to the court does not

appear. I conceive however, that there was a demand for compensation in damages, which were laid at a small amount, as the plaintiff's main object was to compel the defendant to drop the name of Mantitheus. A verdict for the plaintiff would have had the desired effect; for, if Bæotus had continued to use the name, another action might have been brought; and so on, toties quoties, with an increase

of damages for contumacy. Reiske infers from a passage in the second action against Bæotus, (page

1013,) that the plaintiff lost the verdict in this action. But this, as

Schäfer observes, does not prove it.
I ASSURE you by the Gods, men of the jury, it

out of no litigious spirit that I commenced this action against Bæotus: I was aware, it would seem strange to many people, that I should commence an action because a person chose to have the same name as myself : but the consequences that would result, if I did not bring this matter to a settlement, made it necessary to have the case tried before you. Had the defendant claimed to be the son of another father, and not of mine, I might well have been regarded as a meddling body, for caring by what name a person called himself. But



[ocr errors]

he commenced legal proceedings against my father, and leaguing himself with a gang of pettifoggers

, Mnesicles

, whom probably you all know, and Menecles, the man who convicted Ninus, and some others of the same description, contended in the suit that he was my father's son by the daughter of Pamphilus, and that he was cruelly treated and excluded from his civic rights. My father—for the whole truth shall be told you, men of the jury-fearing to come into court, lest some one to whom he had given offence by his political acts should take this opportunity of attacking him, and at the same time being deceived by the defendant's mother—for she had sworn that, if he tendered her an oath ? upon the subject, she would not swear it, and in that case their dispute would come to an end, and she had bargained for a sum of money to be deposited with a third person these conditions, I say, my father tenders her the oath. She accepted it, and swore that not only the defendant, but his brother also, her other son, was my father's child. As she had done this, it became necessary to introduce them to the clansmen, and there was no excuse left. He introduced them, he adopted them as his children; (to pass over what intervened,) he enters the defendant at the Apaturia 4 by the name of Bootus in the register of his clansmen, and the other one by the name of Pamphilus : I had been registered by the name of Mantitheus. It happened that my father died before the entries were made in the register of the townsmen; and the defendant went and entered himself in the township register by the name of Mantitheus instead of Bæotus. How greatly this damages not only me but you, I will explain, when I have produced witnesses to confirm my statements.

1 “Ulpien, dans ses commentaires sur la barangue de Démosthène touchant la fausse ambassade, parle de cette même Ninus, et dit qu'elle fut accusée par Ménéclès de composer pour les jeunes gens des phil. tres amoureux.”—Auger. 2 As to the nature of this oath, see Vol. III. Appendix 9, page 384.

μεσεγγυησαμένης αργύριον. Es argumento et ipsis in Bootum orationibus apparet, Mantiam pollicitum esse Plangoni pecuniam apud sequestem depositam aut sponsoribus datis.” Wolf.

Reiske in his Index interprets it differently; as if Plangon had deposited inoney as security for keeping her promise. Pabst renders it-" nachdem sie eine Geldsumme als Pfand sich hatte anweisen lassen."

4 See Volume III. Appendix 6, page 274.


« EelmineJätka »