Demosthenes, Speeches (English) (XML Header) [genre: prose; rhetoric] [word count] [lemma count] [Dem.].
<<Dem. 37 Dem. 38 (Greek) >>Dem. 39

Against Nausimachus and Xenopeithes

38.1Inasmuch as the laws, men of the jury, have granted that a special plea may be entered in cases where a man, after giving a release and discharge, note nevertheless brings suit, and as both of these have been given to our father by Nausimachus and Xenopeithes who have commenced suit against us, we have pleaded, as you have just now heard, that their suit is not admissible. 38.2I shall make of you all a just and reasonable request: first, that you listen to my words with goodwill, and, secondly, that if you think that I am being wronged and made defendant in a suit which has no valid basis, you render me the succor which is my due. The damages claimed in the action are, as you have heard, thirty minae; but the sum for which we are really being sued is four talents. For there are two of them, and they have entered four suits against us, all for a like amount, each for three thousand drachmae damages; note and now on a complaint for thirty minae we are brought to trial for so large a sum. 38.3The malicious actions of these men, and the guile with which they have proceeded against us, you will come to know from the facts themselves. But first the clerk shall read to you the depositions which show that they released our father from the charges which they made on the matter of his guardianship; for it is on this ground that we entered our plea that the action is not maintainable.

Please read these depositions.Depositions

38.4That they entered suit, men of the jury, regarding the guardianship; that they dropped those actions; and that they have in their possession the sums of money agreed upon, you hear from the witnesses. That the laws do not allow suit to be entered afresh regarding matters which have been thus settled, I presume you know, even if I say nothing about the matter; nevertheless I want to read you the law itself.

Read the law.Law

38.5You hear the law, men of the jury, expressly stating the several cases in which there shall be no actions. One of them (and it is as binding as any of the others) is that suit may not be brought in matters for which anyone has given a release and discharge. Yet, although the release was thus given in the presence of numerous witnesses, and although the law manifestly absolves us, these men have come to such a pitch of shamelessness and audacity, 38.6that, when fourteen years have elapsed from the time when they gave my father a release, and twenty-two years after they had first indicted him, note when my father was now dead, with whom the settlement had been made and also the guardians who after his death had charge of our property, when their own mother, too, was dead, who was well-informed regarding all these matters, and the arbitrators, the witnesses, and almost everybody else, if I may so say, counting our inexperience and necessary ignorance a boon to themselves, they have instituted these suits against us, and have the audacity to make statements which are neither just nor reasonable. 38.7They declare that they did not sell their father's estate for the money which they received, nor did they give up the property, but that all that was left them—credits, furniture, and even money—still belongs to them. I, for my part, know by hearsay that Xenopeithes and Nausicrates note left their entire property in outstanding debts, and possessed very little tangible property; and that when the debts had been collected and some furniture and slaves had been sold, their guardians purchased the farms and lodging-houses, which our opponents received from them. 38.8If there had been no dispute about these matters before, and no suit had been entered charging maladministration of the property, it would have been another story; but since these men brought suit against our father in the matter of his general conduct as guardian and recovered damages, all these matters were at that time released. For our opponents, I take it, did not bring suit for the mere name “mal-administration in guardianship,” but for the money; nor did the guardians buy off this name with the money which they paid, but they bought off the claims.

38.9That, therefore, these men have no right of action against us for the debts which our father collected before the settlement, or, in general, for monies which he received by virtue of his guardianship, seeing that they have given a release for their claims, I think you have all adequately learned from the laws themselves and from the release. Moreover, that it is impossible that the collection of these funds should have been made subsequently (this is the story they are making up to lead you astray), I wish to prove. 38.10As for my father, they cannot charge that he received them; for he died three or four months after the settlement was made with them; and that Demaretus, whom our father left as our guardian, could not have received them either (for they have written his name also in their complaint), this, too, I shall show. 38.11These men are themselves our strongest witnesses; for they will be shown never to have brought suit against Demaretus in his lifetime; but, more than that, anyone who examines and studies the case itself will see, not only that he did not receive the money, but that it was impossible that he should have received it. For the debt was in Bosporus, a place which Demaretus never visited; how, then, could he have collected it? Ah, but, they will say, he sent someone to get the money. 38.12But look at the matter in this way. Hermonax owed these men one hundred staters, note which he had received from Nausicrates. Aristaechmus was for sixteen years the guardian and caretaker of these men. Therefore, the money which Hermonax paid in his own person after these men had come of age, he had not paid when they were minors; for he certainly did not pay the same debt twice. Now is there any man so silly as voluntarily to pay money to one not entitled to it, who demanded it by letter, when he had for so long a time evaded payment to the rightful owners? For my part, I think there is not.

38.13However, to prove that I am speaking the truth,—that our father died immediately after the settlement, that these men never brought suit against Demaretus for this money, and that he absolutely never went to sea, nor visited Bosporus, take the depositions.Depositions

38.14Well then, that our father did not collect the money after the release; that no one would voluntarily have paid the money, if Demaretus had sent someone to get it; and that he himself neither put out to sea nor visited Bosporus, has been made clear to you from the dates and the depositions. I wish, then, to show you that their whole statement too of the case is absolute falsehood. They have written in the complaint which they are now prosecuting, that we owe the money, inasmuch as our father received it in payment, and passed it over to them as a debt due and payable in his account of his guardianship.

Take, and read me, please, the complaint itself.Complaint

38.15You hear it stated in the complaint, “inasmuch as Aristaechmus passed the debt over to me in his account of his guardianship.” But, when they brought suit against my father in the matter of his guardianship, they wrote the very opposite of this; for they plainly charged him with not rendering an account.

Read, please, the complaint itself, which they then brought against my father.Complaint

38.16In what account, pray, Xenopeithes and Nausimachus, do you now charge that he passed the debt over to you? For at one time you brought suit and demanded money on the ground that he rendered no account. But if it is to be permitted you to bring your malicious charge on both grounds, and at one time you collected money because he did not hand something over to you, and at another are suing him on the ground that he did hand it over, there is nothing to prevent your looking for some third ground after this, so as to commence proceedings afresh. But that is not what the laws state: they declare that suit may be brought once only against the same person for the same acts.

38.17Now, men of the jury, that you may know that they not only have suffered no wrong in the present case, but that they are bringing suit in defiance of all your laws, I wish to cite to you this statute also, which expressly states that, if five years have elapsed and they have brought no suit, it is no longer permitted to orphans to bring suit regarding claims connected with guardianship.

The clerk will read you this law.Law

38.18You hear the law, men of the jury, flatly stating that if they do not bring suit within five years, they have no longer the right to sue. But we did bring suit, they may say. Yes, and you made a settlement, too; so you have no right to bring a fresh suit. Else it would be an outrageous thing, if for original wrongdoings the law does not allow suit to be brought by orphans after five years against guardians who have not been released, but now in the twentieth year you are to maintain an action against us, the children of your guardians, for matters concerning which you did give them a release.

38.19But I hear that they are going to shun arguments based upon the facts of the case and upon the laws, and are prepared to assert that a large estate was left them and that they were defrauded of it; and that they will advance as a proof of this the large sum asked as damages in their original suit, and they will wail over their orphanhood, and will go through the guardianship accounts. These and such-like points are the ones upon which they have fixed their trust, and by which they hope to beguile you. 38.20For my own part, I think that the large sum asked as damages in the suits then brought is a stronger proof for us, that our father was the victim of a malicious action, than for them, that they were being defrauded of a large estate. For if he could prove his claims for eighty talents, no man in the world would have accepted three talents in settlement; whereas anyone, being defendant in a guardianship suit involving such large sums, would have paid three talents to buy off the risk and the advantages with which at that time nature supplied these men. They were orphans and young, and you were ignorant of their real characters; and everyone says that in your courts these things have more weight than strong arguments.

38.21Moreover, I think I can also prove that you might with good reason refuse to hear a word from them in regard to the guardianship. note For suppose one should grant that they have suffered the greatest possible wrongs, and that everything which they will now allege about these matters is true, this, at least, I presume you would all admit: that it has happened to others ere now to have suffered many wrongs more serious than pecuniary wrongs. For involuntary homicides, outrages on what is sacred, and many other such crimes are committed; yet in all these cases the fact they have yielded to persuasion and given a release is appointed for the parties wronged as a limit and settlement of the dispute. 38.22And this just principle is so binding among all men, that, if one, having convicted another of involuntary homicide, and clearly shown him to be polluted, subsequently takes pity upon him, and releases him, he has no longer the right to have the same person driven into exile. If, then, when life and all that is most precious are at stake, a release has this power and validity, shall it be without effect, when money is at stake, or claims of lesser importance? Surely not. For the thing most to be feared is, not that I should fail to obtain justice in your court, but that a just practice, established from the beginning of time, should now be done away with.

38.23“They did not let our property,” they will perhaps say. No; for your uncle Xenopeithes did not want it let, but, after Nicidas had denounced him for this, note induced the jurors to allow him to administer it; and this everybody knows. “They robbed us of huge sums.” Well, for this you have received from them the damages upon which you agreed; and, I take it, you are not entitled to recover it again from me. 38.24But, that you may not think there is anything in all this—it is of course not fair (how could it be?) after having come to a settlement with the guilty parties, to accuse persons who know nothing about the case—none the less, Xenopeithes and Nausimachus, if you have the idea that your claims are so marvellously valid, pay back three talents, and go on with your suit. After having exacted so large a sum for not pressing your charges, you are bound to keep silent until you have paid this back—not to make the charges and keep the money; that is the very extreme of unfair dealing.

38.25Now it is likely that they will talk about their trierarchies, and say that they have expended their property upon you. That their statements will be false; that they have squandered much of their property upon themselves, while the state has received but a small share; and that they will deem it right to reap from you a gratitude that is not deserved nor due—all this I shall pass over. I myself, men of the jury, deem it right that somewhat of gratitude should be accorded by you to all who bear the public burdens. But to whom should you accord most gratitude? To those who, while in their actions doing what is of service to the state, do not bring to pass what all would call a shame and a reproach. 38.26But those who while performing public services have squandered their own property, bring the state into disrepute instead of rendering her service. For no man ever yet blamed himself; on the contrary, he declares that the state has taken away his property. But those who with ready hearts perform all the duties you lay upon them, and who by the soberness of their lives in other matters preserve their property, rightly have the better of the others in this respect, that they both have been and will be of service, and also because this service accrues to you from them without reproach. We shall be found to be men of this type in our relations to you; as for them, I shall pass them by, that they may not charge that I am speaking evil of them.

38.27I should not be surprised if they try to shed tears and make themselves seem worthy of pity. But I deem that, in view of this, you should all remember that it is the part of shameless men, or rather of men with no sense of right, after having squandered their fortune in gluttony and wine-bibbing along with Aristocrates and Diognetus and others of that stamp in shameful and evil fashion, to weep and wail now in the hope of getting what belongs to others. You would have good cause to weep over your former doings. Yet it is not now a time to weep, but to prove that you did not give a release, or that action may be had afresh for the matters released, or that it is legal to bring an action after the lapse of twenty years, when the law has fixed five years as the limit. These are the questions which these gentlemen are to decide. 38.28If they are unable to prove these things, as they will be unable, we beg of you all, men of the jury, not to deliver us up as prey to these men, nor to give yet a fourth fortune to those who have mismanaged three others—that which they received from their guardians without compulsion, that which they exacted by compromising their suits, and that which the other day they took from Aesius by a judgement—but to allow us, as is right, to retain what is our own. It is of greater service to you in our hands than in theirs. And surely it is more just that we should have what is our own than that they should have it.

I do not know what reason there is why I should say more note; for I believe that nothing that I have said has escaped you. Pour out the water.

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