Against Stephanus II

Even of myself, men of the jury, I could pretty well suspect that this fellow Stephanus would not be at a loss for something to say in defence of his testimony; and that he would seek to mislead and deceive you in his speech by alleging that he has not borne witness to everything written in the deposition. For he is a knave, and there are many to write speeches and give advice on Phormio’s behalf. Furthermore it is but natural that those who undertake to give false testimony should at the start prepare some means of defending it.

But I bid you to bear this in mind, that in his address, long as it was, he nowhere brought forward witnesses to prove to you either that he was himself present when my father made this will, so as to know that this is a copy of the will which my father made, or that he saw the document opened which they declare my father drew up and left as his will.

When, however, my opponent has testified that what was written in the document was a copy of the will of Pasio, but is unable to prove either that my father made a will or that he was himself present and saw it when my father drew it up, is he not manifestly proved to have given false testimony?

If, now, he maintains that it was a challenge and not a deposition, he is not telling the truth. For all pieces of evidence which the parties to a suit bring before the court when they tender challenges to one another, they bring in by means of depositions. Otherwise you would not know whether what they severally say is true or false, if they did not bring forward the witnesses also. But when they do bring in witnesses, you rely upon these as being responsible, and so from the statements and the testimony offered you cast your votes for what seems to you to be a just verdict.

I wish therefore to prove to you that the deposition is not a challenge, and to show you how they ought to have deposed if the challenge was given, which it was not,—The deponents testify that they were present before the arbitrator Teisias, when Phormio challenged Apollodorus to open the document which Amphias, the brother-in-law of Cephisophon, produced, and that Apollodorus refused to open it. If they had given their evidence in this way, they would have appeared to be speaking the truth. But to depose that what was written in the document which Phormio produced was a copy of the will of Pasio, without having been present when Pasio made the will, or knowing that he had made one, does this not seem to you to be a manifest piece of insolence?

And surely, if he says that he believed this to be true because Phormio said it was, it would be like the same man to believe him when he said this, and to testify to it at his bidding. The laws, however, do not say this, but ordain that a man may testify to what he knows, or to matters at the doing of which he was present, and that his testimony must be committed to writing in order that it may not be possible to subtract anything from what is written, or to add anything to it.

Hearsay evidence they do not admit from a living person, but only from one who is dead; but in the case of those who are sick or absent from the country they allow evidence to be introduced, provided it be in written form, and the absent witness and the one submitting his testimony shall alike be liable to action under the same impeachment, in order that, if the absent witness acknowledges his evidence, he may be liable to action for giving false testimony, and if he does not acknowledge it, the one who submitted his testimony may be liable.

Now Stephanus here, without knowing that my father left a will or having ever been present when he drew one up, but having been told this by Phormio, has given hearsay evidence which is false, and has done it in defiance of the law.

To prove that I am telling the truth in this, the clerk shall read you the law itself.

The Law

It shall be lawful to introduce hearsay evidence from one that is dead, and written evidence given in absence from one who is out of the country, or is sick.

Now I wish to prove to you that he has given evidence contrary to another law also, that you may know that Phormio, having no harbor of refuge from the grievous wrongs he has committed, had made a pretence of the challenge, but actually has given evidence for himself, screening himself behind the testimony of these men, by which the jurymen were deceived, assuming that they were testifying to the truth, and I was robbed of the property which my father left me and of reparation for the wrongs which I have suffered. For the laws do not permit a man to give evidence for himself either in criminal suits or in civil suits or in audits. Phormio, however, has given evidence for himself, when these men say that they have given this testimony on the strength of what they heard from him.

But that you may be fully convinced of this, (to the clerk) please read the law itself.

The Law

The two parties to a suit shall be compelled to answer one another’s questions, but they may not testify.

Now consider this law also which ordains that action for false testimony may also be brought on this very ground, namely, that one testifies contrary to law.

The Law

The witness shall also be liable to action for giving false testimony on the mere ground that he gives evidence contrary to law, and the one producing him shall also be liable in the selfsame manner.

Furthermore, even from the tablet upon which the deposition is written one can tell that he has given false evidence. For it is whitened, and was prepared at home.[*](As the deposition was written, (with a dark pigment) on a whitened tablet, it had obviously been prepared in advance. An off-hand answer to a challenge would have been written on a waxed tablet.) Yet it is only those who testify to facts who should offer depositions prepared at home; those who testify to challenges, who stand forward on the spur of the moment, should present their depositions written in wax, in order that, if one wants to add or to erase anything, it may be easier to do so.

In all these things, then, he is shown to have given false testimony, and to have given it contrary to law; but I wish to prove this further fact, that our father did not make a will, and could not legally make one. For, if anyone should ask you in accordance with what laws we should live as citizens, you would of course answer, the established laws. But look you, the laws ordain, nor shall it be permitted to enact a law applying to an individual, unless the same law applies also to all the Athenians.

This law, then, ordains that we should live as citizens under the same laws and not one under one law, another under another. But my father died during the archonship of Dysnicetus,[*](That is, in 371-370 B.C.) and Phormio became an Athenian citizen during the archonship of Nicophemus,[*](That is, in 361-360 B.C.) in the tenth year after my father died. How, then, could my father, not knowing that Phormio was to become an Athenian citizen, have given him in marriage his own wife, and thus have outraged us, shown his contempt of the gift of citizenship which he had received from you, and disregarded your laws? And which was the more honorable course for him—to do this during his lifetime, supposing he wished to do it, or to leave behind him at his death a will which he had no legal right to make?

And verily, when you have heard the laws themselves you will see clearly that Pasio had no right to make a will.

(To the clerk.) Read the law.

The Law

Any citizen, with the exception of those who had been adopted when Solon entered upon his office, and had thereby become unable either to renounce or to claim an inheritance,[*](The precise meaning of this phrase is disputed. See the authorities cited in the next note.) shall have the right to dispose of his own property by will as he shall see fit, if he have no male children lawfully born, unless his mind be impaired by one of these things, lunacy or old age or drugs or disease, or unless he be under the influence of a woman, or under constraint or deprived of his liberty.[*](On this law consult Hermann-Thalheim, Rechtsalterthüfmer, pp. 68 ff., with the authorities there cited. It is quoted, in part, also in Dem. 44.68, and is frequently referred to by Isaeus. See Wyse’s note on Isaeus 2.13, and Savage, The Athenian Family, p. 119. Observe that, while the law has to do with those adopted into the family, our pleader makes it refer to those adopted as citizens.)

You have heard the law, then, which does not permit a man to dispose of his property by will, if he have male children lawfully born. But these men declare that my father made this will, yet they cannot prove that they were present at the time. Another thing also deserves to be borne in mind, that it is to those who had not been adopted, but were lawfully born, that the law gives the right, in case of their being childless, to dispose of their property by will. Now my father had been adopted as a citizen by the people, so that on this account also he had not the right to make a will, especially in regard to his wife, of whom he was not even the legal guardian; and besides he had children.

Note further, that even if a man be childless, he has not the right to dispose of his property by will, unless he be of sound mind; but if he be impaired by disease or the effect of drugs, or be under the influence of a woman, or be the victim of old age or madness, or be under constraint, the laws ordain that he be incompetent. Now consider whether the will, which these men say my father made, seems to you to be the will of a man of sound mind.

Taking the lease, and nothing else, as an example, tell me whether it seems to you consistent that my father should refuse Phormio permission to carry on his business except in association with us, and yet that he should give him his wife in marriage, and thus make him a partner in his own fatherhood? And do not be surprised that, while they were arranging all else in regard to the lease so cleverly, they overlooked this. For perhaps they paid no heed to anything else, save to rob me of my money and to set my father down as a debtor to the bank; and then they did not suppose that I should be clever enough to look into these matters closely.

Now, then, consider the laws, and see from whom they ordain that betrothals should be made, that you may come to know from them also, that this fellow Stephanus has proved himself to be a false witness to a forged will.

The Law

If a woman be betrothed for lawful marriage by her father or by a brother begotten of the same father or by her grandfather on her father’s side, her children shall be legitimate. In case there be none of these relatives, if the woman be an heiress, her guardian shall take her to wife, and if she be not, that man shall be her guardian to whom she may entrust herself.

You have heard what persons this law has appointed to be guardians; and that my mother had none of these my opponents have themselves borne witness. For if there had been such, they would have produced them. Or do you suppose they would have produced false witnesses and a non-existent will, but would not have produced a brother or a grandfather or a father, if they could have done it for money? Since, then, it is plain that no one of these was living, it follows necessarily that my mother was an heiress. Now see whom the law ordains to be guardians of an heiress.

(To the clerk.) Read the law.

The Law

If one be born the son of an heiress, two years after he has reached the age of manhood[*](That is at the age of eighteen years (see note b on p. 9 of vol. 1.).) he shall assume control of the estate, and he shall make due provision for his mother’s maintenance.

The law, then, appoints that sons who have reached the age of manhood shall be guardians of their mother and shall make due provision for their mother’s maintenance. But it is clear that I was on a military expedition and in command of a trireme in your service,[*](Hence he had obviously come to manhood.) when this man married my mother.