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 καταψευδομаρтuρnbeis, 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 λáßw тdv čλeyxov is to be understood passively, and he translates-"quo me argumento falsus testis convincet?"

THE ORATION AGAINST PHORMIO.

THE ARGUMENT.

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 Panticapaum) 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 Alexander, 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

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. However, I doubt not that by the facts of the case I can show the action to be maintainable. Pray consider, O 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 BospoWe 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.

rus.

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 ἑτερόπλωος 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 frst 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, έδανείζοντο 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."