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III. Action to compel the discharge of a Suretyship ( ἐγγύης δίκη).
III. 1. On the Estate of Dikaeogenes. [Or. v.]
Dikaeogenes, son of Menexenos—who, for distinction from his grandfather, of the same name, we call Dikaeogenes II.—had four sisters. These, when he died childless, shared among them two-thirds of his estate. The other third went to his first-cousin, Dikaeogenes III., son of his uncle Proxenos, in accordance with a will produced by Proxenos, in which the deceased declared Dikaeogenes III. to be his adopted son, and heir to one-third of his estate (
υἱὸς ποιητὸς ἐπὶ τρίτῳ μέρει τῆς οὐσίας, § 6).
Twelve years later (§ 7), Dikaeogenes III. alleged that this first will was invalid. Under a
second will, he said, he was heir, not to a third only, but to the whole of the estate. He gained his cause. The sisters of the testator were deprived of their shares, and the whole was transferred to Dikaeogenes III.
Ten years more elapsed (§ 35). Meanwhile the nephews of the testator had grown up. They now resolved to seek redress for their mothers and themselves. They began by bringing an action against one Lykon, who had been called by Dikaeogenes III. as a witness to the second will. Lykon was convicted of perjury.
The state of things was now this:—Dikaeogenes III. had himself declared the first will—which gave him 1/3rd—to be invalid. The judges of Lykon had declared the second will—which gave him all—to be false. Accordingly, the nephews (with the exception of Menexenos II., who had deserted their cause) now sued Dikaeogenes III. for the
whole estate. One Leochares interposed a protest (
διαμαρτυρία) that their claim was inadmissible. They indicted Leochares for perjury. Leochares was certain to be convicted. Dikaeogenes III. therefore made a compromise. He was to keep his original one-third, and leave his adversaries in secure
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possession of the other two-thirds. Leochares and Mnesiptolemos became his sureties for the performance of this engagement.
Leochares is now sued (by an
ἐγγύης δίκη) to
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discharge his liability as surety, since his principal Dikaeogenes III. has made default. The speaker, son of Polyaratos (§ 5), is one of the nephews of the testator, and is supported by his first cousin Kephisodotos (§ 2).
The question of the date—a most difficult and,
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for the chronology of Isaeos, a most important question—turns mainly on one point. Dikaeogenes II., when commanding the Paralos, was killed in battle ‘at Knidos’ (§§ 6, 42). Does this refer to the sea-fight off Knidos in 412 B. C.; or to the more famous battle in 394 B. C. ? If to the former, then the date of the speech is about 390 B. C. —earlier, by at least 12 years, than any other Isaean work of which we can approximately fix the time. If to the latter, then the date is about 372 B. C. The former view is the more probable. The annals will then stand thus:—
412 B. C., Ol. 92. 1. Dikaeogenes II. killed in the sea-fight off Knidos
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.
First will produced, making Dikaeogenes III. heir to one-third of the estate.
400 B. C. Twelve years (§ 7) after the first will, Dikaeogenes III. alleges a
second will, which makes him heir to the whole estate; and gains his cause. Meanwhile Athens had suffered calamity, sedition, and civil strife
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(
ib.: i.e. the defeat at Aegospotami, the tyranny of the Thirty, and the Anarchy).
393 B.C. Lechaeum, the western port of Corinth, is taken (§ 37) by the Lacedaemonians in the second year of the Corinthian War (394—387 B. C.).
390 B. C. Ten years (§ 35) after the establishment of the second will, Dikaeogenes III. is sued by the testator's nephews. A great war is still going on, in which—while
he has never served—‘Olynthians and islanders are dying (
ἀποθνήσκουσι) for this land in battle with the enemy’: § 46
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.
It is true that, in the Olynthian War of 382— 379 B. C., Olynthians were, in a sense, fighting the battle of Athens. It is also true that, in 374 B. C., war had been renewed between Athens and Sparta; and that the mention of ‘islanders’ might be explained by the fact that Corcyra was a centre of the hostilities. But the
πόλεμος of § 46 cannot well cover the whole intermittent struggle against Sparta. Clearly it refers to the Corinthian War (394—387 B. C.)
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.
The speaker defines his case by quoting his own affidavit
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(
ἀντωμοσία, § 1). He then refers to a register (
ἀπογραφή) of the property left by his uncle, to prove that Dikaeogenes III. has not refunded the due amount, and that Leochares has therefore not discharged his suretyship (
τὴν ἐξεγγύην ἀπέδωκεν, §§ 1—4).
A narrative of the facts above stated follows—stress being laid on the conduct of Dikaeogenes III. to his own cousins, one of whom he made a sort of servant to his brother Harmodios (§§ 5—18).
Dikaeogenes had covenanted, not only to resign his claim to two-thirds of the estate, but to give the plaintiffs undisputed possession of them. He now pretends that he had agreed only to resign his claim. This would mean nothing, as he had already sold these two-thirds to other persons. He was bound to refund the price to the purchasers, and to explain that he could not warrant (
βεβαιοῦν) their ownership. So far from doing this, he had allowed the plaintiffs to incur the cost of an unsuccessful attempt to eject (
ἐξάγειν) one of these purchasers (§§ 19—24). To prove that Leochares was surety for Dikaeogenes, it is shown that Leochares had, on that very pretext, induced Protarchides, the husband of one of his nieces, to resign some property (§§ 25—27).
The plaintiffs have made fair allowance for the improvement of the property by Dikaeogenes III.; and arbitrators, half of whom were chosen by him, have recognised the justice of their claim (§§ 28—34). Dikaeogenes deserves no sympathy on the ground of patriotism. His public services have been ill done; and he has paid no war-tax (
εἰσφορά). Once, indeed, after Lechaeum was taken, he promised a subscription; but he never paid it, and his name was posted as a defaulter at the statues of the Eponymi (§§ 35—38).
His private and public life is contrasted with that of the speaker's ancestors—whose great-grandfather, Dikaeogenes I., fell fighting for Athens at Eleusis
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; as his grandfather Menexenos fell at Spartolos
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, and his uncle, Dikaeogenes II., at Knidos. Nor can the defendant take credit for his ancestors Harmodios and Aristogeiton. He renounced them, and the privileges which their descendants enjoy— maintenance at the Prytaneion, places of honour (
προεδριῶν), freedom from taxes—in order to be adopted by his cousin
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(§§ 39—47).
The Attic Orators from Antiphon to Isaeos. Sir Richard C. Jebb. London. 1876.
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