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I. Trials of claim to an inheritance ( διαδικασίαι).

I. 1. On the Estate of Kleonymos. [Or. I.]

Polyarchos Kleonymos¹ one sister Deinias² elder claimant³ younger claimant Pherenikos Poseidippos Diocles

Polyarchos left two children, Kleonymos, and the mother of the claimants. On the death of their father the claimants became the wards of their paternal uncle Deinias⁴. They were heirs-at-law of their maternal uncle Kleonymos (§ 4). But Kleonymos, having quarrelled with Deinias, resolved to spite him by disinheriting his wards. He therefore made a will in favour of some remoter kinsmen,—Poseidippos (§ 4), Diokles (§ 14), Pherenikos and his brothers (§ 45)⁵. After the death of Deinias, however, Kleonymos relented. He took charge of his nephews; and in his last illness resolved to cancel his will. With this purpose he sent for the magistrate ( ὁ ἀστύνομος § 15); but he died before he had seen him.

The claimants contend that the will had been virtually cancelled, and claim as next of kin ( κατὰ τὴν ἀγχιστείαν, § 6). The defendants rely on the will ( κατὰ διαθήκην ἀμφισβητοῦσιν, § 41). The eldest claimant is the speaker.

Benseler places the speech below 360 B. C., and ⁶ indeed regards it as one of the latest, because hiatus is avoided with a care, foreign, he thinks, to the earlier manner of Isaeos⁷. In the case of Or. VIII., at least, as we shall see, this test hardly holds good. This, however, is a much stronger instance, and the speech may safely be referred to the years 360—353.

‘Kleonymos had intended us to be his heirs: now we are ⁸ in court with not only his legacy but our whole fortune at stake. The friends of the defendants recognise our right to at least a share of the legacy; but the defendants themselves, so far from admitting this, seek to deprive us of our very patrimony, on account of alleged debts to Kleonymos (§§ 1—5). We shrink from appearing against kinsmen; the defendants have no such feeling; they have mustered all their forces as against enemies (§§ 6—8).

[Then comes a narrative of the facts, §§ 9—14, supported by witnesses, §§ 15—16.]

‘It is pretended that Kleonymos sent for the magistrate not to cancel but to confirm his will. If, being then on the best terms with us, his nephews, he wished to clinch the wrong which, in a fit of anger, he had once meant to do us, he was mad, and his will ought to be set aside. But that this was not his purpose,—that he meant, not to revise, but to revoke his will,—was shown by the unwillingness of Poseidippos and Diokles to admit the magistrate (§§ 17—24). Besides, a mere correction or addition might have been made on a new tablet; by sending for the original document Kleonymos showed that he desired some substantial alteration (24—26). Not only on grounds of kinship but also on grounds of friendship Kleonymos was more likely to have left his property to us than to the defendants (§§ 27—38). There is always a presumption for claimants by blood as against claimants by will (§§ 41—43). Again, take the test of reciprocal obligation: if Kleonymos had died leaving daughters unprovided for, we, not the defendants, would have been liable to provide for them (§§ 39, 40). Or, if the defendants and we had alike died without issue, Kleonymos would have been heir, not to them, but to us (§§ 44— 47). Either the testator was of unsound mind, or we are the heirs’ (§§ 48—51).

I. 2. On the Estate of Nikostratos [Or. IV.]

grandfather of Nikostratos Thrasymachos Thrasippos Hagnon⁹ Hagnotheos Nikostratos

Nikostratos, an Athenian citizen, had died abroad, after an absence from Athens of eleven years (§ 8), during part of which he seems to have been doing military service (§§ 18—26.) His first cousins, Hagnon and Hagnotheos, claimed his property as next of kin ( κατὰ γένος). Their claim is disputed by one Chariades, who says that it is his under an express bequest ( κατὰ δόσιν). Chariades had been absent from Athens for seventeen years before the death of Nikostratos (§ 29), and professed to have been intimate with him abroad.

In this speech, a friend (§ 7) of Hagnon and Hagnotheos recapitulates the points of their case. Hagnon (or, as he and his brother were boys, νεανίσκοι § 26, some one for them) had, probably, already spoken. That this speech is the second ( ἐπίλογος) for the defence is clear from the fact that no witnesses are called. There is no ground for supposing, with the author of the Argument, that the speaker was Isaeos¹⁰. The date is uncertain.

‘Witnesses cannot be brought, nor false statements easily ¹¹ refuted, in regard to transactions abroad. But the case of Hagnon and his brother can be proved from what has occurred at Athens. First,—Chariades calls Nikostratos the son of Smikros. Hagnon and his brother claim the property of Nikostratos, son of Thrasymachos. But for this discrepancy, the judges would have had to ask merely, Did or did not Nikostratos leave a will? Clearly Chariades wanted to perplex an issue, otherwise simple, by raising a question of identity (§§ 1—6).

‘Six other persons besides Chariades have put forward, and withdrawn, claims to the inheritance¹². Chariades himself in the first instance claimed it on the ground of kinship. Then, shifting his ground, he claimed it under a will (§§ — 10). Such claimants, when defeated, ought to be fined, not merely in proportion to their assessed property ( κατὰ τὸ τέλος), but in the whole amount of the estate claimed. A claim under a will which sets aside the natural succession requires scrutiny. Witnesses can prove only the fact of a will, not the identity of one will with another. Then the law requires that the testator should have been of sound mind.

‘Universally the presumption is strong in favour of claimants by kinship as against claimants under a will ( κατὰ δόσιν, §§ 11—18). In this case Chariades was not on such terms with Nikostratos as make the bequest probable. Chariades was not the messmate ( σύσσιτος) of Nikostratos. He was not even in the same company ( τάξις) with him. He did not pay him the last offices (§§ 18—20). The property of persons dying abroad has often been claimed by strangers. On grounds both general and particular the probabilities are in favour of the defendants.

‘Certain supporters of Chariades pretend that they are themselves the next of kin to Nikostratos. In that case it is their interest to claim the estate on their own account. If defeated they will be able to try again: whereas, if Chariades once obtains the estate under an alleged will, no claim founded on kinship can afterwards be entertained (§§ 21—26).

‘Lastly:—contrast the antecedents of the parties to the cause. Thrasippos, father of the defendants, was a patriotic citizen, and his sons have always borne a good name. Chariades—who has been absent from Athens for 17 years—has been imprisoned for theft and indicted as a malefactor. Let the judges decide as the evidence and their oaths enjoin’ (§§ 27—31).

I. 3. On the Estate of Apollodoros [Or VII.]

Apollodorus? Eupolis Mneson¹³ Thrasyllos I¹⁴ mother of the testator Archedamos Apollodorus II¹⁵ ¹⁶ ¹⁷ Apollodorus I¹⁸ one daughter¹⁹ mother of the speaker Thrasyllos II²⁰ Thrasybulos

Eupolis, Mneson and Thrasyllos were brothers. Mneson died childless. Thrasyllos was killed in the Sicilian expedition, and left his son Apollodoros I. to the guardianship of Eupolis. Eupolis abused the trust. He intercepted, by a pretended will, half of Mneson's property; and also embezzled much of his nephew's patrimony. Apollodoros I. found a friend, however, in his mother's second husband, Archedamos, who supported him in an action against Eupolis. Archedamos died, leaving a daughter who was married and had a son, Thrasyllos II. When Apollodoros lost his only son, he determined to adopt this Thrasyllos as his son and heir.

At the death of Apollodoros, his estate was claimed by his first-cousin, the elder of the two daughters of Eupolis, and wife of one Pronapes. She denied that Thrasyllos II. had been adopted by Apollodoros I. In this speech Thrasyllos defends his right.

The date must be about 353 B. C. For:— ²¹ 1. Apollodoros I., when about to set forth on a campaign to Corinth, made a will, and directed that his daughter, the speaker's mother, should marry one Lakratides (§ 9). The campaign was probably that of Ol. 96. 4, 393 B.C., or Ol. 97. 1, 392 B.C. At this time, then, the speaker's mother was unmarried. Her marriage—not to Lakratides, but to the speaker's father, Archedamos—may be put four or five years later: in 388 or 387 B.C.—2. The speaker, when adopted by Apollodoros, had already been a thesmothetes (§ 34); i. e. was at least thirty. But he cannot have been much more, for he is still a young man (§ 41).—3. Soon after his adoption, he went on a sacred embassy to the Pythian festival (§ 27). The first Pythiad after the speaker had reached the age of thirty was that of Ol. 106. 3, 354 B.C.—4. From §§ 14, 15 it may be inferred that Apollodoros I. did not live long after the adoption; and the contest for the property must have followed soon after his death. The adoption may, then, be placed early in 354; the trial, in 353²².

The speaker, Thrasyllos, was adopted by Apollodoros ²³ during the latter's lifetime. This kind of adoption is always less open to suspicion than adoption under a will. The speaker might have barred the claim of Pronapes by an affidavit ( διαμαρτυρία): but, confident in his cause, he has preferred a direct trial ( εὐθυδικία, §§ 1—4).

Gratitude to Archedamos had prompted Apollodoros to adopt the speaker; who, at the Thargelia, was duly received into the family and the clan (§§ 5—17). Had there been no such adoption, however, the next heir would have been, not the wife of Pronapes, but her nephew, Thrasybulos. The silence of Thrasybulos is evidence to the adoption (§§ 18—26); which was ratified by the demesmen of Apollodoros. At their meeting to choose the officers of the deme ( ἐν ἀρχαιρεσίαις), they placed Thrasyllos on their register ( ληξιαρχικὸν γραμματεῖον: §§ 27, 28)²⁴.

The wife of Pronapes and her sister had already inherited the property of their brother; but had ignored the obligation to constitute one of their children his representative before the law ( εἰσποιεῖν υἱὸν αὐτῷ, § 31); and thus his line had become extinct ( ἐξηρήμωται ὁ οἶκος, ib.). This would have been warning enough to Apollodoros. He would never have left his property to the wife of Pronapes (§§ 29—32). On the other hand, no one had stronger claims on Apollodoros than the speaker (§§ 33—36).

The public services of Apollodoros and his father, Thrasyllos I., are contrasted with those of Pronapes²⁵. The speaker has already served the state as far as his years allowed, and hopes to serve it more (§§ 37—42). Summary: §§ 43—45.

I. 4. On the Estate of Kiron [Or. VIII.]

²⁶ ²⁷ ²⁸ Kiron ²⁹ ³⁰ the speaker ³¹ ³² ³³ ³⁴ Kiron's grandfather

Kiron married his first-cousin, by whom he had one daughter. This daughter was married, first, to Nausimenes; secondly, to another husband by whom she had two sons, of whom the eldest is the speaker.

After the death of his first wife, Kiron married the sister of one Diokles, and had by her two sons, both of whom died young.

At the death of Kiron, his estate was claimed by his daughter's eldest son. But the son of Kiron's brother, instigated by Diokles³⁵, set up a counterclaim on two distinct grounds: 1. That Kiron's grandson is illegitimate: 2. That, supposing him legitimate, a brother's son has a better claim than a daughter's son³⁶. This speech is the defendant's answer.

The only indication of the date is that the ³⁷ speaker and his brother were born after the archonship of Eukleides³⁸, Ol. 94. 2, 403 B.C. (§ 43). The speech cannot, then, be put before 383 B.C. On the other hand, the speaker's plea of ‘utter inexperience’ (§ 5) implies youthfulness. Now, if he was a young man, the date cannot be much below 383³⁹ , since otherwise it would have been superfluous for him to tell the judges that he was born after 403. The date is probably about 375 B.C.

The speaker denounces the impudence of this attempt ⁴⁰ to defraud himself and his brother,—an attempt which has been organised by Diokles; but expresses his confidence of being able to defeat it (§§ 1—5).

I. First, he will show that his mother was the legitimate daughter of Kiron (§ 6). He states the facts as to Kiron's second marriage (§§ 7—9); and proves, in support of them, that he had challenged the other side to give up Kiron's slaves for torture, which challenge had been refused (§§ 9—14). He and his brother were always treated by Kiron as his nearest kinsmen (§§ 15—17). His mother was treated as Kiron's daughter both by her husband and by the women of Kiron's deme: he and his brother were formally enrolled by Kiron in his phratria (§§ 18—20). Lastly, Diokles himself allowed the speaker and his brother to assist at the funeral of Kiron—thus recognising the relationship (§§ 21—29).

II. Secondly, he will show that, as son of Kiron's daughter, he has a better claim than the son of Kiron's brother. Descent ( γένος) is a nearer tie than collateral kinship ( συγγένεια): descendants ( ἔκγονοι) inherit before collateral relations ( συγγενεῖς). This is illustrated by the law on the maltreatment of parents ( ὁ περὶ κακώσεως νόμος, § 32). According to that law, the obligation to maintain relatives descends lineally. The corresponding right to inherit from relatives must descend lineally too (§§ 30—34).

An account of the property of Kiron and of the intrigues of Diokles (§§ 35—39) is followed by a personal attack on Diokles (§§ 40—42). This attack is resumed in the epilogue; and the speech concludes with the calling of evidence to show that Diokles had been guilty of adultery (§§ 43—46).

I. 5. On the Estate of Astyphilos [Or. IX.]

Thudippos ⁴¹ Euthykrates Kleon⁴² ⁴³ Sister of Hierokles⁴⁴ Theophrastos sister Astyphilos ⁴⁵

Euthykrates and Thudippos were brothers. Thudippos had a son named Kleon. Euthykrates had a son Astyphilos and a daughter. On the death of Euthykrates, his wife married a second husband named Theophrastos, by whom she had a son.

Astyphilos died on military service at Mytilene. As soon as the news of his death reached Athens, Kleon took formal possession of his estate⁴⁶ ( ἐνεβάτευσε, § 3) in the name of his own son, who, as he alleged, had been adopted by Astyphilos, and in evidence of whose claim he produced a will.

Presently the son of Theophrastos—who had been serving abroad—returned to Athens, and claimed⁴⁷ the estate of his half-brother Astyphilos. In this speech he contends that the will alleged by Kleon is a forgery.

The date—a difficult point—is probably about ⁴⁸ 369 B.C. Astyphilos (§ 14) ‘first went on a campaign to Corinth—then to Thessaly—then he served through the whole Theban War—in short, wherever he heard of an army being raised, he was off to it with a company ( λοχαγῶν)......and this expedition to Mytilene was his last.’ The allusions to Thessaly⁴⁹ and Mytilene⁵⁰ cannot be fixed. The others are to the Corinthian War of 394—387 and the Theban War of 378—371⁵¹ .

Kleon and his son have already been adopted into ⁵² another family; and have thus forfeited their claim as kinsmen to the estate of Astyphilos⁵³. Hence they resorted to the fiction of a will: and Hierokles, uncle of the speaker, pretends that this will was left with him. Astyphilos did not even receive the last rites from the man who pretends to have been his adopted son (§§ 1—6).

If Astyphilos had intended such an adoption, he would have called kinsmen or intimate friends as witnesses. But the witnesses now produced are strangers (§§ 7—13). Again, Astyphilos served in many expeditions before that to Mytilene. Is it likely that he should have delayed making his will—if he was going to make one—till just before the last campaign? (§§ 14, 15.) Astyphilos hated Kleon, because Euthykrates had died of injuries received from Thudippos, Kleon's father (§§ 16—21). Hierokles, ungrateful to the speaker's father Theophrastos, has plotted this fraud with Kleon (§§ 22—26). The speaker and Astyphilos were close friends from boyhood; and Theophrastos treated Astyphilos as a son (§§ 27—30). It is unlikely, then, that Astyphilos should have preferred Kleon's son to the speaker. The relatives of Astyphilos have never recognised the alleged adoption by admitting Kleon's son to the family sacrifices (§§ 31—33). Epilogue: §§ 34—37.

I. 6. On the Estate of Aristarchos [Or. x.]

⁵⁴ Aristomenes Aristarchos I Apollodorus sister Kyronides⁵⁵ Xenaenetos mother Demochares mother ⁵⁶ Aristarchos II⁵⁷ Xenaenetos II⁵⁸ speaker⁵⁹ ⁶⁰

Aristarchos I. had two sons and two daughters. Kyronides, the eldest son, was adopted, during his father's lifetime, into the family of his maternal grandfather Xenaenetos I. At the death of Aristarchos I. the property went, therefore, to the second son, Demochares. Demochares died in youth. One of his sisters had died, without issue, before him. The other sister was thus left heiress to her father's estate; and might have been claimed in marriage by one of her near kinsmen. Her nearest kinsmen were, her uncle Aristomenes, brother of Aristarchos I., and his son Apollodoros. Neither of them claimed her hand. Aristomenes, as her guardian, gave her in marriage, with a small dowry, to a stranger: he then put her brother, now his son-in-law, Kyronides in possession of the estate of Aristarchos I.—to which Kyronides had forfeited all right by adoption into the house of Xenaenetos. Kyronides and the daughter of Aristomenes had two sons,—Aristarchos II. and Xenaenetos II. Aristarchos II. was made adopted son of Aristarchos I. in accordance with an alleged will by which the latter left his property to his grandson. At the death of Aristarchos II. his brother Xenaenetos II. was, under his will, declared his adopted son and heir.

The claim of Xenaenetos II. is now opposed by the grandson of Aristarchos I. He claims the estate on behalf of his mother as daughter of Aristarchos I., —not as sister (by adoption) of Aristarchos II.; though, at the preliminary inquiry (§ 2), legal form had required him to describe her in the latter manner.

Aristarchos ‘has been killed in the war,’ ἐν τῷ⁶¹ πολέμῳ τέθνηκε (§ 22); words which imply both that his death is recent and that the war continues. Now this war is clearly not the Corinthian War (394—387), which, with the peace that closed it, is mentioned as something long past (§ 20). The war in which Aristarchos fell is probably the Theban War of 378—371. The speech may be placed between 377 and 371⁶².

After contrasting his own want of nerve and fluency ⁶³ with the practised skill of the adversaries, the speaker explains why the form of his claim is inconsistent with its substance. He has been obliged to describe his mother, not as the daughter of Aristarchos I., but as the sister of Aristarchos II., although he denies the validity of the adoption on which the latter title depends (§§ 1—3).

He relates the facts (§§ 4—7); and then argues that Aristarchos II. could not have been adopted (1) by Aristarchos I., while the latter had a legitimate son, Demochares, living; nor (2) by Demochares, who died before he was competent to adopt; nor (3) by Kyronides, who had passed out of the family; nor (4) by Aristomenes or his son Apollodoros (§§ 8—14).

Xenaenetos II., the defendant, does not, however, rely only on the alleged adoption of Aristarchos II. He says that his father, Kyronides, had already acquired a right to the estate by discharging debts with which it was encumbered. But, the speaker replies, (1) the person liable for these debts was not Kyronides but the speaker's mother⁶⁴: and (2) had the estate really been so encumbered, Aristomenes and Kyronides would not have been in such haste to procure the inheritance for Aristarchos II. (§§ 15—17).

The speaker answers the objection that his claim ought to have been made long ago. His father was deterred from taking proceedings by the fear of losing his wife, whom the next of kin threatened that they would claim at law ( ἐπιδικάζεσθαι), if he claimed the estate. The plaintiff himself has hitherto been prevented by military service, and then by a debt to the Treasury⁶⁵, from bringing an action (§§ 18—21).

The personal worth of Aristarchos II. cannot excuse the fact that the property which he bequeathed was not his own. The holder of disputed lands is bound to produce the mortgager ( θέτης), the seller, or the legal decision under which he occupies⁶⁶, Just so the adversaries must prove their title to this estate. Kyronides and his family already possess the property of Xenaenetos I. They now seek to deprive the speaker of his patrimony. As a citizen of good character, public and private, he claims the protection of his rights (§§ 22—26).

The Attic Orators from Antiphon to Isaeos. Sir Richard C. Jebb. London. 1876.

Sponsored by Perseus Project, Tufts University.

Funding provided by National Endowment for the Humanities.

Current edition Perseus

The Attic Orators from Antiphon to Isaeos (English) (The Attic Orators from Antiphon to Isaeos. Jebb, Richard Claverhouse, author. London: Macmillan, 1876.)

Notes on the current edition

The Attic Orators from Antiphon to Isaeos

1. deceased

2. guardian of claimants, deceased

3. the speaker

4. From § 9, it is clear that Deinias was not the brother of Kleonymos. In § 4 it is expressly said that Kleonymos was the son of Polyarchos.

5. Scheibe seems right in assuming that Diokles and Poscidippos are not brothers of Pherenikos. It is by an oversight that the author of the Greek Argument has included among the defendants Simon, named as a friend of Deinias in § 31,—where αὐτῷ = Φερενίκῳ.

6. Date.

7. Bens. De hiatu, p. 192.

8. Analysis.

9. These brothers are the defendants, for whom a friend perorates, against one Chariades.

10. Ἰσαῖος οὖν ὁ ῥήτωρ, says the author of the Argument—and the οὖν is very characteristic of his airy assumptions— ὡς συγγενὴς ὢν τῶν περὶ τὸν Ἅγνωνα, λέγει συνηγορῶν αὐτοῖς. He has taken his συγγενής simply from § 1, where the word ἐπιτήδειοι may, of course, mean ‘relations,’ as it does in § 18, but seems rather to mean merely ‘friends’:—Hagnon and Hagnotheos are my ἐπιτήδειοι, the speaker says, ‘ as their father was before them. ’ Schömann (p. 269) remarks that the author's authority may have been Didymos, whose commentaries on Isaeos are mentioned by Harpokr. S.V. γαμηλία—a flattering supposition, I fear.

11. Analysis.

12. The passage in § 7 still offers an exercise to the ingenuity of critics. No sooner was the large property of the deceased Nikostratos sent home, than everyone shaved his head,—all Athens went into mourning for its relative. τίς γὰρ οὐκ ἀπεκεἰρατο, ἐπειδὴ τὼ δύο ταλάντω ἑξάκις ἤλθετον; The ἑξάκις is the puzzle. I. Reiske would understand εἰς κρίσιν with ἤλθετον: ‘when the two talents came six times into dispute’. but (1) the grief would have been counterfeited before the contest: and (2) the ellipse of εἰς κρίσιν is utterly impossible. II. Schömann suggests, ἐπειδὴ τὼ δύο ταλάντω ἐξέκεισθον—i.e. ‘as soon as the two talents were announced for competition’— ἐκκεῖσθαι referring to notice given by the magistrates that claimants of the estate should come forward. III. Valcknär, ἐξ Ἄκης—which Scheibe, adopting his emendation, properly writes ἐξ Ἀκῆς. The Phoenician town Ἀκή is mentioned by Harpokration. The emendation is one of those which, when confirmed by the evidence of facts, are certain, but which, in the absence of such evidence, are only brilliant.May not ἑξἀκις be simply a marginal gloss by some one who, having counted up the claimants (other than Chariades) enumerated in §§ 8, 9, found that their number was six? The annotator may either, like Reiske, have taken ἤλθετον to mean ‘were contested’ and have meant his note for that word; or he may have mentally supplied his verb.

13. deceased

14. deceased

15. deceased

16. wife of Pronapes

17. wife of Aeschines

18. testator

19. deceased

20. speaker, adopted son of Apollodorus I

21. Date.

22. The allusion in § 38 to the discharge of the trierarchy by companies instead of individuals ( οὐκ ἐκ συμμορίας τὴν ναῦν ποιησάμενος ὥσπερ οἱ νῦν) would alone prove the speech to be later than 358 B C.

23. Analysis.

24. From §§ 26—28 it appears that ratification by the deme was necessary before enrolment by the γεννῆται and φράτορες could entitle the adopted person even to family rights; see Schäfer Dem. u. seine Zeit, III. ii. 27.

25. In § 39 it is said that Pronapes ἀπεγράψατο μὲν τίμημα μικρόν, ὡς ἱππάδα δὲ τελῶν ἄρχειν ἠξίου τὰς ἀρχάς, ‘returned his income as small, but claimed to hold magistracies, as if he paid the tax of a knight’—showing that the names, at least, of the Solonian classes were kept up. Schömann suggests that the offices for which the census of a knight was required may have been such as were concerned with the administration of the public money (p. 373).

26. Kiron's aunt

27. Kiron's mother

28. first wife of Kiron

29. Kiron's brother

30. wife of Nausimenes and of a second husband who is father of the children

31. one brother, § 37

32. second wife of Kiron, sister of Diokles

33. two sons, both deceased

34. claimant against the speaker

35. This Diokles of Phlya is the same against whom Isaeos wrote the lost speeches, κατὰ Διοκλέους ὕβρεως (possibly in the γραφή mentioned at § 41 of our speech), and πρὸς Διοκλέα περὶ χωρίου: fragments VIII. and IX. in Sauppe O.A. II. p. 230 ff. Diokles was ‘surnamed Orestes’ (§ 3, cf. § 44)—a nickname for any violent character, borrowed from the robber mentioned by Aristophanes—not without an Euripidean allusion. See Acharn. 1166,

εἶτα κατάξειέ τις αὐτοῦ μεθύων τῆς κεφαλῆς Ὀρέστης μαινόμενος

36. ‘According’—says the author of the Greek Argument—‘ to the well-known law ( κατὰ τὸν νόμον ἐκεῖνον) which prescribes that descendants in the male line shall be preferred to descendants in the female line.’ The writer was evidently thinking of Or. VII. § 20. But (1) the reference there is to ἀνεψιαδοῖ: (2) the question here is between lineal and collateral kinship. The nephew's claim on this second ground was baseless.

37. Date.

38. Observe the argument which, in § 43, is founded upon this fact. Diokles, says the speaker, imperils not only our fortune but our citizenship. If our mother was not a citizen, neither are we citizens: ‘ for we were born after the archonship of Eukleides.’ This alludes to the law carried in 403 by Aristophon the Azenian,—that the son of a citizen shall be illegitimate, if his mother (as well as father) was not a citizen: ὃς ἂν μὴ ἐξ ἀστῆς γένηται, νόθον εἶναι (Athen. XIII. 577 B).

39. On account of the avoidance of hiatus, Benseler would put Or. VIII (with I, VII, and XI) below 360 B C.: De hiatu 192. But, as Blass points out (II. 523), the large use of this oration made by Demosthenes in the two Speeches Against Aphobos would of itself forbid us to go below 363.

40. Analysis.

41. father of Thudippos

42. defendant

43. Son of Kleon, alleged to be adopted son and heir of Astyphilos

44. married first to Euthykrates, then to Theophrastos

45. claimant and speaker

46. Direct possession could thus be taken only (1) by children or grandchildren of the testator: (2) by an adoptive son who had been adopted during the lifetime of the testator. A son adopted by will had, like remoter kinsfolk, to put in a claim to the inheritance ( ἐπιδικάζεσθαι) Kleon therefore must have appealed to the will, not to prove the adoption, but merely to prove that the adopted son was also the heir.

47. By the form of παρακαταβολή (Schöm. p. 404) in the strict sense —literally ‘deposit of security for costs.’ The term ἀμφισβητεῖν was used of any claimant in a willcase: παρακαταβάλλειν was properly said of one who (as here) asserted his right to the whole estate.

48. Date.

49. From about 395 to 374 dynastic feuds were rife in Thessaly: see Thirlwall c. 38, v. p. 65. Jason of Pherae kept a large standing army of mercenaries.

50. I can, however, conjecture the occasion of this expedition to Mytilene. In 373 Timotheos was named commander of the fleet which was to help Corcyra. Not being able to man his fleet at Athens, he went on a cruise in the Aegean, to get men and money from the allies (Xen. H. VI. ii. 12 Grote x. 199). Now we know that, in 390 at least, Mytilene was the only Lesbian town not favourable to Sparta (Xen. H. IV. viii. 28). A levy of troops and money on Lesbos might easily give the laconising towns of the island a pretext for attacking the one notoriously philathenian town. The expedition in which Astyphilos was killed may have been sent to support Mytilene. Does not the phrase in § 1, οἱ εἰς Μιτυλήνην στρατιῶται, imply a succour?

51. Dobree ( Adv. I. 305) puts the speech in 374— 1 B.C.; but does not give his reasons Weissenborn (Ersch and Gruber's Encycl. p. 300) puts it about 369 B.C. Blass ( Att. Ber. II. 525) says, ‘some time after 371 at earliest.’Schömann's view is widely different, and as, I think, indefensible. He puts the speech in 390 B C., ‘or not much later,’ and holds that (1) The Theban War means the invasion of Boeotia by Sparta in 395, when Athens helped Thebes, and Lysander was killed at Haliartos: (2) The expedition to Thessaly refers to 394, when Agesilaos marching through Thessaly, routed the Thessalian allies of Thebes, who may have been supported by Athenians: (3) The expedition to Mytilene is the visit of Thrasybulos and his fleet in 390— 389 B.C.I should object:—(1) that the order in § 14,— Corinth, Thessaly, Theban War, which the context shows to be chronological, is thus changed to Theban War, Thessaly, Corinth: (2) that the phrase τὸν Θηβαικὸνπόλεμον ἅπαντα clearly implies more than a single campaign: (3) that in 394 it is very unlikely that Astyphilos or an Athenian force should have met Agesilaos in Thessaly, since the allied forces, including Athenians, were waiting for Agesilaos in Boeotia: (4) that Mytilene—as Blass has observed—was never the immediate object of Thrasybulos: cf. Xen. H. IV. viii. 25.

52. Analysis.

53. Had Kleon and his son not been thus adopted into another family, their claim to the estate of Astyphilos would have been better than that of the speaker. Of collateral kinsfolk, the law called to the succession, first, kinsfolk on the father's side down to the ἀνεψιῶν παίδας (or ἀνεψιαδοῦς), i.e. children of the children of a father's brother or a father's sister; secondly, in default of such, kinsfolk on the mother's side—a son of the same mother by another marriage ranking first among these. See Or. VII. § 20, and Schömann, p. 405.

54. father

55. adopted by Xenaetos 1

56. daughter who died young

57. adopted by Aristarchos I

58. defendant, adopted by Aristarchos II

59. claimant

60. two sisters

61. Date.

62. Schömann refers the specch to 384 at latest. For (1) he takes the war of § 22 to be the Corinthian (2) he takes the πολὺς χρύνος of § 18 to be the interval between the death of Aristarchos— say in 388—and the bringing of the action. Now this interval could not exceed five years, since that was the limit ( προθεσμία, praescriptio) set by the law to the time within which an estate could be claimed when its holder was not the first heir, but that heir's successor. Here Xenaenetos II. was the heir of Aristarchos II., who was the heir of Aristarchos I. The estate of Aristarchos I must therefore be claimed from Xenaenetos within five years from the death of Aristarchos II. But it could have been claimed from Aristarchos II. at any time while he lived. The πολὺς χρόνος of § 18 means, however, as I think with Blass, the time during which Aristarchos had wrongfully possessed the estate.

63. Analysis.

64. A petitio principii—that she was the ἐπίκληρος.

65. A citizen who, on any account whatsoever, owed money to the Treasury, suffered total suspension of civic rights until the debt was paid. Cf. Isokr. Antid. § 10, ἀτιμότεροι...τῶν ὀφειλόντων τῷ δημοσίῳ.

66. § 24. ὥσπερ τῶν ἀμφισβητησίμων χωρίων δεῖ τὸν ἔχοντα ἢ θέτην ἢ πρατῆρα παρέχεσθαι ἢ καταδεδικασμένον φαίνεσθαι. Here θέτης= ὁ θείς, the mortgager (the mortgagee being ὁ θέμενος): and καταδεδικασμένος ‘having got a verdict’ against the opposing claim.

Sir Richard C. Jebb The Attic Orators from Antiphon to Isaeos 2.21.5