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received under the guardianship, have these men a right of action against us, after having withdrawn from their claims, I think you have all clearly learned from the laws themselves and the release. That the sums in question could never have been collected afterwards, (for that is the fabrication by which they seek to mislead you,) I will proceed to prove. They will hardly venture to allege that my father received them; for he died three or four months after his arrangement with my opponents: and I will show that it is impossible for the money to have been received by Demaretus, our testamentary guardian; (for his name also they have inserted in the plaint.) Our strongest witnesses are the complainants; for it will appear that they have never brought an action against Demaretus in his lifetime: but, independently of that, any one who looks attentively at the case itself will see, not only that Demaretus never received the money, but that it is impossible he ever should have received it. For the debt was in Bosporus; and Demaretus never went to that place; how then could he have got it paid? It may be said perhaps, he sent some one to collect it. Just look at the matter in this way— Hermonax owed these men a hundred staters, which he had received from Nausicrates. Aristechmus was their guardian and curator for sixteen years. Well then; the debt which Hermonax paid with his own hand after these men had attained their majority, he did not discharge when they were minors; for of course he did not pay the same money twice. Now would any man be so foolish as voluntarily to pay a debt (upon a demand by letter) to a person not entitled to it, after having for so long a period evaded payment to the rightful owners? I should hardly think so.
To prove the truth of these statements-that our father died immediately after the arrangement-that our opponents never brought an action against Demaretus for this money— and that Demaretus did not go at all to sea and never made a voyage to Bosporus-take the depositions.
It has thus been made clear to you from the dates and the depositions, that our father did not get payment after the release that no one would have paid the money voluntarily, if Demaretus had sent a person out for it--and that he was
not likely to make a voyage or go to Bosporus. I wish now to show you, that their whole statement of the case is a falsehood. They have inserted in the plaint which they are now prosecuting, that we owe the money, inasmuch as our father received payment of it and passed it over to them as an outstanding debt in his guardianship account. Take the record, if you please, and read it.
You hear it stated in the plaint-" inasmuch as Aristæchmus passed the debt over to me in his guardianship account." But, when they brought an action against my father for breach of his trust as guardian, they stated the contrary to this; for they treated him as not having rendered an account, and made that specific charge. Read the plaint in the action which they then brought against my father.
In what account do you charge that he gave up the debt to you, Xenopithes and Nausimachus? For at one time you brought actions against him and demanded money, on the ground that he refused to render an account: at another time you sue on the plea that he handed over something to you. If you may bring your pettifogging actions on both grounds, first demanding compensation because he did not give something up to you, and then suing because he did give it up, there's nothing to prevent your looking out hereafter for some third ground, to commence fresh proceedings upon. But the laws do not allow this: they say, that actions shall only be brought once against the same party for the same
To show you, men of the jury, that they have not only sustained no wrong on the present occasion, but are suing us contrary to all the laws, I will cite to you also this statute, which expressly declares, that, if five years have elapsed, and the orphans have brought no action, their right of action for all claims arising out of the guardianship shall be barred. He shall read you this law.
You hear the law, men of the jury, declaring positively that, if they bring no action within five years, their right of
action shall be barred. Well, we commenced an action; they may say. Yes, and you settled it too: therefore you have no right to take any further proceedings. It would indeed be monstrous, when for the original injury the law does not allow actions to be brought after five years by orphans against their unreleased guardians, that you should now in the twentieth year maintain an action against us, the children of your guardians, for matters upon which you gave them a release.
I hear however, that they will avoid all argument upon the laws or the facts of the case, but are prepared to assert, that a large property was left them and they were defrauded of it; and for proof of this they will refer to the magnitude of the damages claimed in their original suit, and will deplore their orphan state, and go through the details of the guardianship accounts: these and such as these are the points on which they rely, and by means of which they think to impose on you. For my part, I think that the magnitude of the damages claimed in those actions is a stronger proof for us, that our father was sued vexatiously, than for them, that they were defrauded of a large property. For no one, if he could establish a claim for eighty talents, would have taken three talents to withdraw; but any guardian, defending an action for such heavy damages for breach of trust, would have given three talents, to buy off the risk and the natural advantages which then belonged to these men. For they were orphans and young, and their characters were unknown; things that with you, as every one says, outweigh a multitude of arguments.
I think also I can show, that you ought not to listen to a word from them on the subject of the trust. For let it be conceded to them, that they have sustained the utmost possible injustice, and that all their 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 profane outrages, and many similar offences, 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 has no longer the right 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 part of it would be, not that I should fail to obtain justice before your tribunals, but that a sound rule of practice, established time out of mind, would now be abolished.
They did not let our property"-perhaps our opponents will say. No; because your uncle Xenopithes did not wish it let, but, after the prosecution had been instituted by Nicidas,1 persuaded the jury to allow him to manage it, as everybody knows. "The guardians plundered us grossly." Well; you have received from them the compensation which you agreed to take; and surely you are not to get it again from me. But, that you may not suppose for a moment, men of the jury, that there is anything in the pointalthough it is manifestly inequitable that, after having settled with the offending parties, they should accuse persons who know nothing about the matter-notwithstanding this, Xenopithes and Nausimachus, if you believe that your case is so wonderfully good, return us the three talents and then go on with it. As you got so much for not pressing these charges, you are bound to hold your tongues until you have returned the money you must not make the charges and keep the money too; that is the extreme of unfairness.
Very possibly also they will talk of the galleys which they have equipped, and say that they have expended their property for your benefit. That they will assert what is falsethat they have wasted a considerable part of their substance, while the state has had but a trifling portion of it, and that they will claim at your hands a gratitude which they have
1 See the second Appendix to this volume.
not earned or merited-all this I will pass by, men of the jury. I hold myself, that you ought to have a feeling of gratitude to all who bear the public burdens. But to whom should you be most grateful? To those who, while they perform that service which is useful to the state, do not create what every one will say is a shame and a reproach. Now those persons, who in serving the public offices have dissipated their private property, bring odium upon the state instead of advantage; for no one ever blames himself, but says that the state has deprived him of his substance. Those on the other hand, who discharge cheerfully the duties which you assign to them, and at the same time preserve their property by the general prudence of their lives, are not only preferable to the other class in this respect, that they both have been useful and will be so again, but also because you get their services without reproach. It will appear, that we have so conducted ourselves in relation to you: of these men I shall say nothing, for fear they should charge us with calumniating them.
I shall not be surprised if they try to shed tears and move your compassion. I conjure you all on the other hand to remember, that it is infamous, or rather iniquitous, after having wasted their substance in gluttony and debauchery with Aristocrates and Diognetus and men of that sort, in a scandalous and profligate manner, to come now with crying and whining, in order to get the property of other people. You had reason to weep for your former conduct: this is not the time to weep, but to show that you never gave a release, or that you can sue again for the matters released, or that it is right to commence an action twenty years afterwards, when the law has prescribed five years as the limit. These are the points which the jury have to determine. If they are unable to show these things, as they will be unable, we entreat you all, men of the jury, not to abandon us to the mercy of our opponents, not to give them a fourth property in addition to three others which they have mismanaged that namely which they received from their guardians without dispute, that which they got to compromise their actions, that which they lately wrested from Esius by a judgment-but suffer us, as we are entitled, to retain what is our own. It is of greater service to you, remaining in our hands, than if it was in