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

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I. 6.

On the Estate of Aristarchos

[Or. x.]

father Aristomenes Aristarchos I Apollodorus sister Kyronidesadopted by Xenaetos 1 Xenaenetos mother Demochares mother daughter who died young Aristarchos IIadopted by Aristarchos I Xenaenetos IIdefendant, adopted by Aristarchos II speakerclaimant two sisters

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 τῷ

Date.

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 371¹.

After contrasting his own want of nerve and fluency

Analysis.

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 mother²: 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 Treasury³, 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 occupies⁴, 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).