Against Phormio

further, that he was not well off, and not so foolish as to pay thirty-nine minae instead of twenty-six hundred drachmae; and besides all this, that when, as he says, he paid the money to Lampis he summoned neither my slave nor my partner, who was at the time in Bosporus, as a witness. Again, Lampis himself is shown to have testified to me, before he was corrupted by Phormio, that he had not received the money.

Yet,[*](The speaker is about to return to the argument that the special plea was inadmissible. He says, in effect, I have shown that Phormio is guilty. If he had been able to prove his case as clearly (i.e. in the suit as instituted) it would have been his best defence. He could not do so, and therefore had recourse to a special plea, arguing that my suit could not be brought into court. This, however, is inadmissible, and his course in entering it proves that he had no defence.) if Phormio were thus to prove his case point by point, I do not see what better defence he could have made. But that the action is admissible the law itself solemnly declares, when it maintains that mercantile actions are those for contracts made at Athens or for the Athenian market, and not only those made at Athens, but all that are made for the purpose of a voyage to Athens.

Please take the laws.

The Laws

That the contract has been entered into between Phormio and myself at Athens even our opponents themselves do not deny, but they enter a special plea alleging that the action is not admissible. But to what tribunal shall we come, men of the jury, if not to you, since it was here in Athens that we made our contract? It would be hard indeed that, if a wrong had been done me in connection with a voyage to Athens, I should be able to get satisfaction from Phormio in your court, but, when the contract has been made in your market, these men should say that they will not be tried before you.

When we referred the case to Theodotus for arbitration, they admitted that my action against them was admissible; but now they say what is the direct opposite of what they have themselves before admitted; as if, forsooth, it were proper that they should be tried before Theodotus, the privileged alien, without a special plea, but, when we enter the Athenian court, the action should no longer be admissible.

I for my part am trying to conceive what in the world he would have written in the special plea, if Theodotus had dismissed the suit, when now, after Theodotus has decreed that we should go into court, he declares that the action is not one that can be brought before you, to whom Theodotus bade us go.[*](If, under the present circumstances, Phormio’s insolence is so great, who can say what it would have been, had the arbitrator decided in his favor?) Surely I should suffer most cruel treatment if, when the laws declare that suits growing out of contracts made at Athens shall be brought before the Thesmothetae, you, who have sworn to decide according to the laws, should dismiss the suit.

That we lent the money is attested by the agreement, and by Phormio himself; that it has been repaid is attested by no one except Lampis, who is an accomplice in the crime. Phormio claims to prove the payment on the testimony of Lampis alone, but I adduce Lampis and those who heard him declare that he had not received the money. Further, Phormio is in a position to bring my witnesses to trial, if he maintains that their testimony is false, but I have no means of dealing with his witnesses, who say they know that Lampis testified that he had received the money. If Lampis’s own deposition had been put into court,[*](When the arbitrator determined that the case before him should be tried in court, he sealed in two jars, or boxes (ἐχῖνοι), all documents bearing upon the case. One of these was assigned to either party in the suit, and only such depositions, citations of laws, or challenges, as were contained in them, might be introduced at the trial.) these men would perhaps have said that I ought to prosecute him for giving false testimony; but, as it is, I have not this deposition, and Phormio thinks he should get off unscathed, since he has left no valid security for the verdict which he urges you to pronounce.[*](Phormio relies upon the testimony of Lampis. Under the circumstances it is impossible for me to sue Lampis for perjury, in which case Phormio might be prosecuted for collusion. He therefore hopes to get off scot-free.)

Would it not indeed be absurd if, when Phormio admits that he borrowed, but alleges that he has made payment, you should make of none effect that which he himself admits and by your vote give effect to what is under dispute? And if, when Lampis, on whose testimony my opponent relies, after at first denying that he had received the money, now testifies to the contrary, you should determine that he has received it, although there are no witnesses to support the fact?

And if you refuse to admit as proofs all that he truthfully stated, and should count more worthy of belief the lies which he told after he had been corrupted? Verily, men of Athens, it is far more just to draw conclusions from statements made in the first instance than from those subsequently fabricated; for the former he made truthfully, and not with ulterior purpose, while the later ones are lies designed to further his interests.

Remember, men of Athens, that even Lampis himself never denied saying that he had not received the money; he admitted that he so stated, but declared he was not in his right mind at the time. But would it not be absurd for you to accept as worthy of credit that part of his testimony which favors the defrauding party, and to discredit that which favors the party defrauded?

Nay, men of the jury, I beg you, do not do this. You are the same persons who punished with death, when he had been impeached before the assembly, a man who obtained large additional loans on your exchange, and did not deliver to his creditors their securities, though he was a citizen and the son of a man who had been general.

For you hold that such people not only wrong those who do business with them, but also do a public injury to your mart; and you are right in holding this view. For the resources required by those who engage in trade come not from those who borrow, but from those who lend; and neither ship nor shipowner nor passenger can put to sea, if you take away the part contributed by those who lend.

In the laws there are many excellent provisions for their protection. It is your duty to show that you aid the laws in righting abuses, and that you make no concession to wrongdoers, in order that you may derive the greatest possible benefit from your market. You will do so, if you protect those who risk their money, and do not allow them to be defrauded by monsters such as these.

I have said all that it was in my power to say. But I am ready to call another of my friends, if you so bid.