Demosthenes, Speeches (English) (XML Header) [genre: prose; rhetoric] [word count] [lemma count] [Dem.].
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Against Apaturius

33.1The law, men of Athens, ordains that actions for merchants and shipowners shall be before the Thesmothetae note if they have been in any way wronged in the market either in connection with a voyage from Athens to any point, or from some other port to Athens; and it fixes imprisonment as the penalty for wrongdoers until such time as they shall have paid the amount adjudged against them, so that no one may lightly do wrong to any merchant. 33.2To those, however, who are brought into court in cases where no contract has been made, the law gives the right to have recourse to a special plea, that no one may bring a baseless or malicious suit, but that actions may be confined to those among the merchants and shipowners who are really wronged. Many defendants in mercantile suits have before now entered special pleas in accordance with this law, and have come before you and proved that their adversaries were making unjust charges and bringing baseless suits under pretence of being engaged in commerce. 33.3Who it is that has conspired with this fellow against me and who has concocted this suit, will become clear to you as my speech goes on. Since, however, Apaturius has made a false charge against me, and is suing me contrary to law, seeing that there had been a release and discharge from all contracts made between him and me, and there exists no other contract made with him by me whether for business by sea or on land, I have entered the special plea that the action is not maintainable, according to the following laws.Laws

33.4That Apaturius, then, has instituted suit against me contrary to these laws and that his charges are false, I shall show you by many proofs. I, men of the jury, have by now been for a long time engaged in foreign trade, and up to a certain time risked the sea in my own person; it is not quite seven years since I gave up voyaging, and, having a moderate capital, I try to put it to work by making loans on adventures overseas. 33.5As I have visited many places and spend my time in your exchange, I know most of those who are seafarers, and with these men from Byzantium I am on intimate terms through having myself spent much time there. My position, then, was such as I have described, when this fellow put into our port with a fellow-countryman of his, named Parmeno, a Byzantine by birth, who was an exile from his country. 33.6The plaintiff and Parmeno came up to me on the exchange and spoke about money. It happened that the plaintiff owed forty minae on his ship, and his creditors were pressing him hard with demands for their money, and were about to board the ship and take possession of it, as his note was overdue. While he was in this embarrassment, Parmeno agreed to give him ten minae, and the plaintiff asked me to contribute thirty minae, charging that the creditors in their eagerness to secure the ship had slandered him on the exchange, that they might seize the ship by putting him in a position where he could not pay. 33.7I happened to have no ready money in hand, but being acquainted with Heracleides, the banker, I persuaded him to lend the money, and to take me as surety. But when now the thirty minae had been procured, Parmeno happened to fall out with the plaintiff. However, seeing that he had agreed to furnish him with ten minae and had already given him three of them, he was compelled on account of the money he had given to pay the remainder as well. 33.8Not wishing, however, for the reason given, to make the loan in his own name, he bade me to arrange it so that things should be as safe as possible for him. So I took over the seven minae from Parmeno, and having had transferred to myself the obligation for the three, which the plaintiff had already received from him, caused a bill of sale to be executed on the ship and the slaves until such time as he should repay me the ten minae, which he had received through me, and also the thirty for which he had made me his surety with the banker. In proof that my words are true, hear the depositions.Depositions

33.9In this way, then, Apaturius here got rid of his creditors. Not long after this, the bank having failed, and Heracleides for a time having gone into hiding, the plaintiff schemed to send the slaves from Athens, and to remove the ship from the harbor. This was the cause of my first quarrel with him. For Parmeno, learning of the fact, laid hands on the slaves as they were being taken away, and prevented the sailing of the ship; then he sent for me, and told me of the affair. 33.10When I heard him, thinking this fellow a most impious wretch because of his attempt, I set about considering how I might myself get free from my guaranty to the bank, and how the foreigner note might avoid the loss of the money he had lent this fellow through me. After stationing men to guard the ship I told the whole story to the sureties of the bank and turned the security over to them, telling them that the foreigner had a lien of ten minae on the ship. Having arranged this, I attached the slaves, in order that, if any shortage occurred, the deficiency might be made up by the proceeds of their sale. 33.11In this way, when I found that Apaturius was a rascal, I set matters right in my own interest and in the interest of the foreigner. But Apaturius, as though the wrong was on my side, and not on his, made complaint to me, and asked if it were not enough for me to be released from my guaranty to the bank, without also attaching the ship and the slaves to secure his money for Parmeno, and thus making an enemy of himself in the interest of one who was an exile. 33.12I replied that, when a man had put his trust in me, I was all the less inclined to leave him in the lurch, because, while he was an exile and in misfortune, he was being wronged by the plaintiff; and after I had done everything possible, and had incurred the utmost enmity on the part of this fellow, I with difficulty secured the money, the ship being sold for forty minae, the precise amount for which she was mortgaged. The thirty minae then having been paid back to the bank, and the ten minae to Parmeno, in the presence of many witnesses, we cancelled the bond in accordance with which the money had been lent, and mutually released and discharged one another from our engagements so that the plaintiff had nothing more to do with me, nor I with him. In proof that my words are true, hear the depositions.Depositions

33.13Since then I have had no business transaction with the fellow, whether great or small, but Parmeno sued him for damages for the blows which he received from him when he laid hands on the slaves as they were being carried off, and because he had been prevented by him from making the voyage to Sicily. When the action had been instituted, Parmeno tendered an oath to Apaturius regarding some of his charges, and he accepted it, and furthermore made a deposit to be forfeited if he did not swear the oath.

In proof that my words are true, take the deposition.Deposition

33.14Having accepted the oath, since he was aware that many would know that he had perjured himself, he did not present himself for the swearing, but, as though he could get free of the oath by an action, he summoned Parmeno into court. When both actions had been instituted, on the advice of persons present they proceeded to an arbitration, and after drawing up an agreement they submitted the matter to one common arbitrator, Phocritus, a fellow-country-man of theirs; and each one appointed one man to sit with Phocritus, Apaturius choosing Aristocles of Oea, note and Parmeno choosing me. 33.15They agreed in the articles that, if we three were of one mind, our decision should be binding on them, but, if not, then they should be bound to abide by what the two should determine. Having made this agreement, they appointed sureties for one another to guarantee its fulfillment. Apaturius appointed Aristocles, and Parmeno Archippus of Myrrhinus. note At the outset they deposited their agreement with Phocritus, but upon his bidding them to deposit it with someone else, they deposited it with Aristocles.

In proof that my words are true, hear the depositions.Depositions

33.16That the agreements were deposited with Aristocles, and that the arbitration was left with Phocritus, Aristocles and myself, has been testified to you by witnesses who know the facts. And now, men of the jury, I beg of you to hear from me what happened after this; for from this it will be clear to you that this man Apaturius is making a claim upon me which is baseless and malicious. For when he saw that Phocritus and I were of one mind, and realized that we should give judgement against him, wishing to break down the arbitration, he sought, in collusion with the man who held them, to destroy the articles of agreement, 33.17and he proceeded to contend that Aristocles was his arbitrator, and declared that Phocritus and I were empowered to do nothing else than seek to bring about a reconciliation. Angered at this statement, Parmeno demanded of Aristocles that he produce the agreement, adding that if there had been any criminal meddling with the papers, proof of the fact would not be far to seek, for his own slave had written them. 33.18Aristocles promised that he would produce the articles, but up to this day has not brought them to light. He did meet us on the appointed day at the Hephaesteum, note but made the excuse that his slave while waiting for him had fallen asleep and lost the document. The man who concocted this plot was Eryxias, the physician from Peiraeus, an intimate friend of Aristocles, the same man who out of enmity toward me has also got up this action against me.

Now in proof that Aristocles pretended that he had lost the document, hear the depositions.Depositions

33.19After this the arbitration was done away with, the articles of agreement having disappeared and the authority of the arbitrators being questioned. They did endeavor to draw up new articles about these matters, but could come to no agreement, as the plaintiff insisted on having Aristocles, and Parmeno the three to whom in the first instance the arbitration had been referred. Nevertheless, although no new articles had been drawn, and those originally drawn had been made away with, the man who had made away with them came to such a pitch of shamelessness that he declared he would in his own single person pronounce the award. Parmeno called witnesses to be present, and forbade Aristocles to pronounce an award against him, without his co-arbitrators, in defiance of the articles of agreement.

Hear the deposition of those in whose presence he thus forbade him.Deposition

33.20After this there befell Parmeno, men of the jury, a dire misfortune. He was dwelling in Ophrynium note because of his being an exile from home, when the earthquake in the Chersonese occurred; and in the collapse of his house his wife and children perished. Immediately on hearing of the disaster he departed by ship from Athens. Aristocles, although the man had adjured him in the presence of witnesses not to pronounce judgement against him without his co-arbitrators, when Parmeno had left the country because of the disaster, pronounced an award against him by default. 33.21Phocritus and I, who were named in the same articles, refused to participate in the award, because the plaintiff denied that in his view we were arbitrators; but Aristocles, whose authority was not only disputed, but who had expressly been forbidden to act, nevertheless made the declaration—a thing which not one of you and not one of all the other Athenians could have been induced to do.

33.22For all that Apaturius and the arbitrator did in connection with the disappearance of the articles and the pronouncing of the award, the man wronged, if ever he comes safely back to Athens, will obtain satisfaction from them. But since Apaturius has come to such a pitch of shamelessness as to bring suit against me also, charging that I undertook to pay any sum that might be awarded against Parmeno, and since he declares that my name was entered in the articles as surety, I shall free myself from such a charge in the proper way; I shall first bring forward witnesses to prove that it was not I who became surety for Parmeno, but Archippus of Myrrhinus; and I shall then undertake, men of the jury, to make my defence by circumstantial proofs.

33.23In the first place, I hold that the time is a witness for me to prove that the charge is groundless. For the agreement to arbitrate made by this fellow and Parmeno and the award of Aristocles took place two years ago; but merchants may bring action every month from Boëdromion to Munichion, note in order that they may obtain their rights without delay and put to sea. So, if I was in truth a surety for Parmeno, why did not Apaturius immediately after the award proceed to collect the sum guaranteed? 33.24It is not open to him to say that because of his friendship for me he was loth to incur my enmity, for he had himself in utter unfriendliness been forced by me to pay the one thousand drachmae due to Parmeno; and when he was trying to get his ship out of the port in his plot to sneak away and to defraud the bank of what was due, it was I who prevented him. So, if I had become a surety for Parmeno, he would not have waited until two years afterward to exact the sum guaranteed, but would have proceeded to do so at once.

33.25Ah, but he was well provided with funds, so that it was open to him to proceed against me later on, and at the moment he had no time, as he was about to put to sea! On the contrary, he was in such straits that he had lost all his effects, and had sold his ship. And, if there really had been anything to prevent his immediately bringing suit against me, why, when he was in town last year, did he not dare, I will not say to bring suit, but even to make a demand? It was surely the proper course for him, if judgement had been given against Parmeno in his favour, and if I was the latter's surety, to come to me himself accompanied by witnesses, and to demand the amount guaranteed, if not the year before last, at any rate in the year just past; and then, if I proffered payment, to take his money, and, if I did not, to bring suit. 33.26For in claims of this sort everyone makes demand before he brings suit. Well, there isn't a person living who will testify that he was present either last year or the year before, when this man either instituted proceedings against me or made any mention to me whatever of the claims for which he is now suing me.

To prove that he was in town last year when the courts were open, please take the deposition.Deposition

33.27Now, please take the law which declares that guaranties shall be for a year only. note I do not lay stress on the law to show that I should not pay what is due, if I actually became a surety, but I declare that the law is a witness that I did not become one, and so is the fellow himself; for otherwise he would have brought suit against me within the time specified by the law.Law

33.28Let this, then, be another proof to you that Apaturius is lying. If I had become surety to him for Parmeno, it is inconceivable that I should have made the plaintiff my enemy for Parmeno's sake, taking every care that the latter should not lose what he had lent the plaintiff through me, and yet have allowed myself to be left in the lurch by him as his surety to the plaintiff. For what ground had I to hope that leniency would be shown me by the man whom I had compelled to do justice to Parmeno? And when I had made him my enemy by exacting from him what was guaranteed to the bank, what treatment could I myself have expected to receive at his hands?

33.29It is worth while also for you to bear this in mind, men of the jury, that, if I had been surety, I should never have denied it. For my argument was much stronger, if I admitted the guaranty and appealed to the agreement in accordance with which the arbitration was to be held. That the matter was referred to three arbitrators has been shown by testimony. When, then, there had been no decision by the three, why in the world should I have denied the guaranty? For, if judgement had not been given in accordance with the agreement, neither should I have been open to action for my guaranty. Therefore, men of the jury, if I had really become a surety, I should not have given up a defence which was at hand, and have proceeded to deny the fact.

33.30Again, the following fact has been testified to you by witnesses, that, after the articles of agreement had been made away with by these men, the plaintiff and Parmeno sought to have new articles drawn up, thus admitting that their former agreement was without force. Yet, when they sought to have other articles drawn in regard to the judgement that was to be given, since the existing ones had been lost, how was it possible that, if other articles were not drawn, there could be either arbitration or guaranty? It was the fact that they disagreed upon this very point that prevented their writing new articles, Apaturius demanding that there should be one arbitrator, and Parmeno that there should be three. But, since the original articles were made away with, in accordance with which he alleges that I became a surety, and other articles were not written, what right has he to bring suit against me, against whom he is able to produce no agreement?

33.31Further, it has been testified to you by witnesses that Parmeno forbade Aristocles to give judgement against him without the concurrence of his co-arbitrators. When, therefore, it is shown that the same person has made away with the document in accordance with the terms of which the arbitration was to be made, and declares that he has made the decision without his co-arbitrators, and in defiance of the notice forbidding him to do so, how can you with any fairness credit the fellow and condemn me? Consider this, men of the jury: 33.32suppose it was not against me, but against Parmeno, that this man Apaturius were now taking action, seeking to recover the twenty minae in reliance upon the judgement of Aristocles; and that Parmeno was present and making his defence, calling witnesses to prove that he had turned the matter over to Aristocles, not as a single arbitrator, but as one of three; 33.33that he had forbidden him to announce a decision against him without his co-arbitrators; and that, after his wife and children had perished in the earthquake, and he in the face of a disaster so appalling had sailed for home, the man who had made away with the articles of agreement announced a judgement against him by default in his absence, is there a single one of you who, when Parmeno had brought out these facts in his defence, would have considered an award so unjustly made to be valid? 33.34More than this; suppose that not every point was under dispute; that there were in existence articles of agreement; that Aristocles was admittedly an arbitrator having sole authority; that Parmeno had not forbidden him to make the award; but that the calamity had befallen the man before the announcement of the award; what adversary or what arbitrator would have been so cruel as not to postpone the case until the man returned to the country? Then, if Parmeno, coming to plead before you, should be judged in every point to speak with more justice than the plaintiff, how can you justly give judgement against me, who have absolutely no contract with this man?

33.35That I, on my part, have made my special plea with good right, and that Apaturius has lodged against me a claim that is .baseless, and instituted a suit contrary to law, has, I think, been shown to you, men of the jury, by many proofs. The main point is this: Apaturius will not even attempt to say that he has any articles showing an agreement between us. When he falsely states that my name was written in as surety in the agreement made with Parmeno, demand of him the articles. 33.36Meet him on this ground: that all men, when they make agreements with one another, seal the articles and deposit them with persons whom they can trust, for this very purpose, that, if a dispute arises between them, they may refer to the document and so settle the point at issue. But when a man, after doing away with the source of accurate knowledge, undertakes to deceive you with words, how can you with justice put any confidence in him? 33.37But perhaps some witness (for this is the easiest course for those who have chosen to do wrong and to bring baseless charges) will testify for him against me. If then, I take action against the witness, how will he prove that his testimony is true? By the articles of agreement? Well, then, let there be no delay about this; let the one who has them bring forward the articles at once. But if he says they have been lost, how, then, shall I find means of refuting the false testimony brought against me? If the document had been deposited with me, it would have been open to Apaturius to charge that I had made away with it because of my guaranty; 33.38but, if it was deposited with Aristocles, why is it, if the agreement has been lost without the plaintiff's knowledge, that instead of bringing suit against the man who received the agreement but does not produce it, he makes charges against me, bringing forward as a witness against me the man who made away with the agreement, against whom he ought to feel resentment, if it were not that they are leagued together in their evil scheming?

I have made a just plea to the best of my ability. Do you now give a just decision in accordance with the laws.

Demosthenes, Speeches (English) (XML Header) [genre: prose; rhetoric] [word count] [lemma count] [Dem.].
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