Against Phaenippus


Demosthenes. Vol. V. Private Orations, XLI-XLIX. Murray, A. T., translator. Cambridge, MA: Harvard University Press, 1939 (printing).

I invoke many blessings, men of the jury, first upon all of you, and then also upon Solon, who established the law about the exchange of estates. For if he had not clearly defined for us what is the first thing to be done by those who have offered an exchange, and what the second, and so on in due order, I do not know to what lengths the audacity of this man Phaenippus would have gone, when even as it is, notwithstanding that the law prescribes all these things for us, he has nevertheless disregarded its just provisions, and instead of giving me the inventory of his property as the law prescribes within three days after he took the oath, or if he did not wish to do so then, giving it at least on the sixth day of the month Boedromion,[*](The month Boedromion corresponds to the latter half of September and the prior half of October.) which date was fixed upon at his request, and on which he promised to deliver the inventory, he did neither the one thing nor the other,

but, showing contempt both for me and for the law, he has delivered his inventory a month later, only two or three days before the case was brought into court, and all the rest of the time has kept himself out of sight; and instead of leaving untouched the seals which I had put upon the buildings, he went into the country, opened the buildings, and carried off the barley and other things, just as if the law had granted him the privilege of doing whatever he pleases, and not what is right.

For my part, men of the jury, I should be most happy to see myself enjoying the material prosperity which was mine before, and remaining in the group of the Three Hundred,[*](Each of the ten Athenian tribes reported a list of its wealthiest citizens to the number of 120. The resulting body of 1200 was divided into four groups of 300 each (for the division into symmories, see note on vol. 1. p. 10), and these groups, being made up of the richest citizens, naturally bore the heaviest burdens, and in times of crisis might be called upon to advance the entire amount of money required. See Boeckh, Publ. Econ., Book 6, chapter 13, and Gilbert, Gk. Const. Ant. pp. 368-374 (English Trans.).) but since, partly through having to share in the misfortunes common to all those who are engaged in mining works, and partly through having met heavy reverses in my private business, I have lost my estate, and now at the last must pay three talents to the state, a talent for each share (for I too was a partner, as I wish I had not been, in the confiscated mine),[*](The mine had apparently been taken over by the state because of non-payment of the rental, and to recover possession the lessees had to make the payment specified. On the general subject of the mining business in ancient Athens see Dem. 37 with the Introduction and notes.) I am compelled to try to substitute in my place a man who is not only richer than I am now, but was richer even before my losses, and who has never borne any state services, nor made any contribution to the state.

I therefore beg of you all, men of the jury, that, if I prove that Phaenippus here has both transgressed the just provisions of the law and is a richer man than myself, you will succor me, and appoint him in the list of the Three Hundred in my stead; for it is on this account that the laws every year provide for the tendering of exchanges, because to enjoy unbroken prosperity is not wont to be the permanent fortune of any large number of our citizens. But I will tell you all that has been done regarding the exchange from the very beginning.

On the second day of the month Metageitnion,[*](The month Metageitnion corresponds to the latter half of August and the prior half of September.) men of the jury, the generals appointed a court for the Three Hundred for the tendering of exchanges. Among these I cited this man Phaenippus as the law provides. After citing him, I took some of my friends and relatives, and proceeded to his outlying farm at Cytherus.[*](Cytherus was a deme of the tribe Pandionis.) And first I led them around the farm, the circuit of which was more than forty stades,[*](The stade was roughly a furlong.) and pointed out to them, and called them to witness in the presence of Phaenippus, that there were no mortgage-pillars[*](Inscribed pillars were set up to indicate that a piece of property was mortgaged. See Dem. 31 passim.) on the farm, and I bade Phaenippus, if he said there were, to declare it at once and point them out to me, for fear some debt existing against the property might be brought to light later on.

Then I sealed the buildings, and bade Phaenippus to proceed to my property. After this I asked him where his threshed grain was, for by the gods and goddesses, men of the jury, there were two threshing-floors there, each one of nearly a plethron in extent.[*](That is, in diameter. The speaker evidently expected to find large quantities of threshed grain, owing to the size of the threshing floors. The plethron was about 100 feet.) He answered me that some of the grain had been sold, and that some was stored within.

Finally, to make a long story short, I stationed men inside to keep watch, and by Zeus I gave strict orders to the ass-drivers and made them stop carrying off timber from the farm (for in addition to the rest of his property Phaenippus has also this very considerable source of revenue: six asses carry off wood the whole year through, and he receives more than twelve drachmae a day). I forbade the ass-drivers, as I said, to touch the wood, and after giving notice to Phaenippus to attend the sacrifice,[*](Evidently for the purpose of taking the oath.) as the law commands, I went back to the city.

First, now, I will produce for you the depositions substantiating what I have said, and then you shall hear the entire truth about the other aspects of the case. For you will find, men of the jury, that this fellow Phaenippus began from the very first day to act in utter disregard of right. I sealed the buildings, as the law permitted me; he opened them. And he acknowledges that he removed the seal, but does not acknowledge that he opened the door, as if men removed the seals for any other purpose than to open the doors.

Then I had forbidden that wood should be carried off; he carried it off every day except that on which I issued the order. There was no debt charged against the farm; he now reports a number of debts. In a word, he does just what he pleases, not what the laws bid him do.

(To the clerk.) Read the depositions, first those concerning the mine, and then the others as well.

The Depositions

The wrongs, therefore, which Phaenippus began to do to me beginning with the very first day after the tendering of the exchanges, you have heard, men of Athens, both from myself and from the witnesses; but the things which he did after this have been offences, not against me only, but also against the laws, to the defence of which you are all bound to rally.

For although he had sworn on the eleventh of the month Boedromion to give me a true and just inventory of his property, and the law expressly declares that the inventory shall be given within three days after one takes the oath, he came up to me in front of the courtrooms with Polyeuctus of Crioa[*](Crioa was a deme of the tribe Antiochis.) and some others, and begged me, first to have a conference with him regarding a settlement, assuring me that he would do everything that was right; and, secondly, to put off the declaration regarding the property for a few days only (for he said he understood my position).

I, on my part, thinking it was becoming to a good citizen who wished to avoid quarrels not to rush headlong into court, was persuaded (for why should I multiply words?) to consent that the conference regarding a settlement should take place on the twenty-third of the month Boedromion, and the declaration regarding the property on the twenty-fifth.[*](Literally the 8th and the 6th of the last group of ten days in the month, which was counted backward.) Yet, although he had obtained both his requests from me, Phaenippus did not present himself on either of these days; instead, he now appears before you as one who has transgressed two laws instead of one;—first, that which declares that the inventory shall be presented within three days after that on which one takes the oath, and, secondly, that which declares that mutual covenants, agreed upon in the presence of witnesses, shall be binding.

Yet, men of the jury, who among you does not know that the day fixed by law and that agreed upon by the contending parties are equally binding? Why, very often, although the thirtieth day is appointed by law, we fix upon another by mutual agreement; and in all the offices the magistrates put off trials and judgements for the contestants, when these have come to a mutual agreement; and if anyone should hold that the agreement thus entered upon was to be of no effect, you would despise him as a cheat without equal.

Well then, Phaenippus, just as though the law enjoined that one should do nothing that one had agreed to, from the day on which he promised to meet me for a settlement and to give me an inventory of his property and receive from me one of mine, never put in an appearance; but I, when I saw that he was paying no heed to me or to the laws, gave in my inventory at the office of the generals, whereas Phaenippus, as I said a moment ago, gave me a paper only the other day with no other purpose than that he might appear to have given me his inventory, but that I should be unable to make any use of its contents.

But, men of the jury, you should not grant more than their due to those who hold their own shamelessness to be stronger than the laws; if you do, you will multiply the numbers of those who mock at the just provisions of the laws. No; you should succor those who regard the voice of the laws as your voice, and the day appointed for coming into court as established in the interest of those who have been wronged, not of those who have done wrong.

(To the clerk.) Read the depositions in support of what I have just said, and the laws.

The Depositions. The Laws

Having, then, been thus treated by Phaenippus, men of the jury, I reported to the generals the following inventory of my property. Read.

The Inventory

How else, then, in the name of the gods and divinities, men of the jury, should one prove that Phaenippus is liable under the laws which have been read, than precisely in the way in which I am proving it? Yet Phaenippus has none the less brought a counter-charge against me that I am not rendering a just inventory of my property; so easy is it for men of his stamp to make false statements before you; and he complains of the oath which I took before filing the inventory, asserting that I undertook to report all the rest of my property except that in the mining-works;—as if to swear according to law were a matter for complaint!

But you know the law, men of the jury, for you enacted it, that which expressly makes this provision, that those tendering exchanges to one another, when they under oath report their inventories, shall swear also the following oath: I will give a true and honest inventory of my property except that in the silver mines, all of which the laws have made exempt from taxes.

But, rather, read the law itself. Yet, stop a moment, please. For I made this offer before to Phaenippus, and now again, men of the jury, I tender it freely:—I will surrender to him all my property including that in the mining works, if he will hand over to me the farm alone free from all encumbrances as it was when I first went to it with witnesses, and will replace as they were before the grain and wine and the other things which he has carried away from the buildings after removing the seals from the doors.

Why, pray, do you keep on talking and crying out? From my silver mines, Phaenippus, I formerly by my own bodily toil and labor reaped a large profit. I confess it. But now I have lost all but a small portion of my gains. You, on the contrary, since you sell from your farm your barley at a price of eighteen drachmae and your wine at a price of twelve, are a rich man, naturally, for you make more than a thousand medimni[*](The medimnus was roughly equivalent to a bushel and a half.) of grain and above eight hundred measures[*](The metretes was roughly equivalent to nine gallons.) of wine.