F. A. Paley, Select Private Orations of Demosthenes

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THIS oration, like those against Zenothemis, Lacritus, and Dionysodorus, is on the subject of bottomry, or a loan of money made on the security of a ship or a cargo or both, and either for the outer voyage only or the return-voyage also, as agreed upon. These transactions were very numerous at Athens, and chiefly on account of the trade in corn. The risk was great, and therefore the interest demanded was large, the lender in fact charging a rate that would cover insurance besides leaving a good profit for the use of the money¹.

The case in this oration is quite simple. Chrysippus lent Phormion, a merchant or trader, 20 minae (about £80) for a voyage to Bosporus (in the Crimea) and back (§ 6). The contract required Phormion, when he had sold his cargo of goods at the mart there, to take on board a return-cargo, from the profits of which, or of both, he was to repay the loan with interest at thirty per cent. at Athens. But being unable to sell his wares in Bosporus, he desired the skipper, Lampis, to sail back to Athens without him, promising that he would soon follow. It so happened that Lampis' ship was wrecked; and though Phormion, having no goods on board, was not in any way a loser by the accident, he evaded his liability by falling back on a clause in the contract, which exempted him from payment if his ship failed to come in safe to the Peiraeus. It is on this point that the action turns. Chrysippus gives evidence that Phormion never thought of disputing his liability at first, on his return to Athens, but trumped up the excuse at a subsequent time in collusion with Lampis.

Chrysippus then brings an action, of the class called ἐμπορικαὶ δίκαι, to compel Phormion to pay his claims. Phormion objects that the suit cannot be maintained, because he has done nothing to violate the terms of the contract. This objection is now answered by Chrysippus. The speech is accordingly directed against the παραγραφή or special plea which had been put in by Phormion, and shows grounds why the action can be and ought to be tried.

The liability to pay had been at first admitted by Phormion: but he afterwards denied it, and when the case was submitted to arbitration by mutual consent (§ 18) he had suborned Lampis (who on a former occasion had, virtually at least, admitted that he had not been paid anything by Phormion) to swear that he had received the money from him in Bosporus, and had lost it in the ship which had been wrecked. Chrysippus handles the accounts in a very dexterous way, and convicts Phormion of falsehood by showing that the money he pretended to have paid Lampis was a great deal too much. He dwells also on the improbability of so large a sum having been paid without any witness to the transaction, and urges that the clause in the contract, making the safety of the ship a condition of the liability, must be taken in close connexion with another clause, which compels the borrower to put goods on board for the home voyage; which Phormion had been unable to do.

The παραγραφή, or special plea, might have been put in, says Chrysippus, if the transaction had not been made in, or in connexion with, the Attic mart. But the law is explicit in stating (§ 42) that all disputes about contracts so made shall be brought before the Attic courts. And the defence set up, viz. that the money was paid, is not a ground for a special plea at all; it is simply a defence in an ordinary action (εὐθυδικία).

The Phormion in this suit πρὸς Φορμίωνα is quite a distinct person from the Phormion in Or. 36, ὑπὲρ Φορμίωνος, who was a liberated slave, and concerned in a banking transaction. [In the present speech it would appear that neither Phormion nor Chrysippus was a citizen of Athens; like Lampis, the skipper, probably both of the litigants were μέτοικοι.]

The date of the speech is approximately fixed by the mention of Paerisades in § 8, as king of Bosporus, which office he held from B.C. 348 to 310, and also by the allusion in § 38 to the capture of Thebes by Alexander, B.C. 335. [The famine-prices of § 34 belong to the years 330—29 and 328—7. Thus the speech belongs to the year 327—6. The late date and the general style of the speech have led the majority of modern critics to deny that it was written by Demosthenes.]

[Modern Literature. Arnold Schaefer, Demosthenes und seine Zeit, III B 300—306, 1858. Blass, die Attische Beredsamkeit, III i 515—520{1}, 1877; 576—582{2}. 1893. Also the following Dissertations: — (1) A. Baumstark, Prolegomenorum in orationem Dem. adv. Phormionem caput prius, sive de litigantium personis ac statu civili commentatio (Heidelberg) 1826. (2) I. Hermann, Einleitende Bemerkungen zu Demosthenes paragraphischen Reden (Or. 32—38), pp. 9—13 (Erfurt) 1853. (3) R. Duncker, inter privatarum causarum orationes Demosthenicas quae pro genuinis habendae sint quaeque pro falsis breviter exponitur. pp. 12—17 (Greiffenberg i. Pomm.) 1877. (4) P. Uhle, Quaestiones de orationum Demostheni falso addictarum scriptoribus, ii, de orat. xxxiii, xxxiv, lvi scriptoribus (Leipzig) 1886. (5) Th. Thalheim, der Process des Chrysippos gegen Phormion, ([Dem.]) Or. xxxiv; pp. 58—68 of Philologische Abhandlungen Martin Hertz...dargebracht (Berlin) 1888. (6) W. H. Kirk, (a) Johns Hopkins University Circular, no. 109, Feb. 1894; and (b) Demosthenic Style in the Private Orations, pp. 36—38 (Baltimore) 1895.]

πρὸς Φορμίωνα περὶ δανείου The speech is quoted under the same title in Pollux ix 45 ἐν τῷ πρὸς Φορμίωνα περὶ δανείου. Harpocration, however, in explaining the use of ἐπεθήκαμεν in § 28, s. v. ἐπιθέτους ἑορτάς, gives the fuller and more accurate title ὑπὲρ Χρυσίππου πρὸς τὴν Φορμίωνος παραγραφήν, which is also found at the end of the speech in the Paris MS, and at the beginning in the Augustanus primus. Harpocr. s. v. ἔφεκτος τόκος, quoted on § 23, has the shorter title ἐν τῷ ὑπὲρ Χρυσίππου. S.]

Argument. κατέλαβεν κ.τ.λ. ‘He found there was no market for the wares he was bringing.’ What these were, does not appear. Probably it was a mixed cargo on speculation. He called it ῥῶπος, ‘trash,’ in a fit of ill-temper at his failure, in § 9.

φορτίων ὧν ἐκόμιζε This is an instance of attraction to an antecedent which is expressed, whereas the usage is much more common when the antecedent is omitted, and the case of the word to be supplied is shifted as it were on to the relative, by which the ellipse is sufficiently indicated. This attraction takes place only where the proper case of the relative is the accusative. We may say κατάλογος βιβλίων ὧν ἔχομεν or ἃ ἔχομεν, but not ὧν χρὠμεθα, because ὧν may represent ἅ, but not οἷς.

ibid. ναυκλήρου ‘The skipper.’ The word seems properly to mean one who has a share or interest in a ship; a part-owner, or one who has hired it for a time (Phot. in v.). Hesych, explains it by ὁ δεσπότης τοῦ πλοίου. [Lampis, however, was only a freedman, representing his former master. Cf. Lacrit. § 33 (μαρτυρίαι) Ὑβλήσιος ἐν αυκλήρει ...κοινωνεῖν δὲ καὶ αὐτὸς τῆς νεως Ὑβλησιῳ, καὶ συμπλεῖν ἑαυτοῦ οἰκέτας εν τῇ νηἰ. A. Schaefer, Dem. u. seine Zeit (III B 305), quotes Bekker's Anecdota, p. 282, ναύκληρος σημαίνει μὲν καὶ τὸν τῆς νεὼς κύριον, σημαίνει δὲ καὶ τὸν έπιπλέοντα αὐτῇ ἐφ᾽ ᾦ τὰ ναῦλα λαμβάνειν. S.]

τὰ ἀγοράσματα The goods purchased with, or in place of (i.e. as security for), the money he had borrowed from Chrysippus.

ἀργύριον The money he ought to have made by the transaction, and given to Lampis to hand over to Chrysippus on his return.

ἐν τῷ λέμβῳ Lampis, with a few others (some thirty being lost, § 10), gets safe to land in the ship's boat.

ἀπαιτούμενος ‘On being asked for payment.’ [For ἀπαιτεῖν, rem debitam reposcere, cf. § 12 and note on Or. 53 § 10. For the passive of the person, cf. Xen. Apol. 17 ἀπαιτεῖσθαι εὐεργεσίαν. S.]

τὴν γὰρ συγγραφὴν ‘The compact expressly says that if anything happens to the ship at sea, Phormion is discharged from his debt to Chrysippus.’ Loans on bottomry partook of the nature of insurance also, i.e. the profit on the loan was so large (§ 23), that it covered some total losses resulting from wrecks or loss of goods from pirates, storms, or other unavoidable mishaps.

παρεγράψατο Phormion put in a demurrer or bar to the suit, trying to show there was no ground for action at all, as he had kept the terms of the contract.

παρὰ τῷ διαιτητῇ Lampis had given false testimony when the case was brought before the arbitrator, Theodotus, § 18, for he had been bribed by Phormion to say anything to get him off. It appears from § 18 that a witness was not likely to be prosecuted for ψευδομαρτυρία given before an arbitrator.

ἐντέθεικεν This perfect is one of the middle-Attic forms. It occurs first in Eur. El. 7 ὑψηλῶν δ᾽ ἐπὶ νηῶν τέθεικε σκῦλα πλεῖστα βαρβάρων, with which compare παρεῖκεν, the perfect of παρίημι, in Hel. 1059. ἀφεικότα occurs Or. 37 § 1.

ἐξεστηκέναι That he was out of his sober senses—not himself, as we say. [οὐκ ἐντὸς ὢν αὐτοῦ, §§ 20, 35, 49. Eur. Bacch. 359 μέμηνας ἤδη καὶ πρὶν ἐξέστης φρενῶν. S.]

ibid. ἐκεῖνα ‘that other account.’

μηδὲν ἀποφηνάμενος ‘Without delivering judgment.’ In classical Greek, of course, οὐδὲν would be required. Cf. ὅτι μὴ inf. 39.—πέπομφε, a rather rare perfect (Thuc. VII 12). Perhaps πεπόμφει, or ἐπεπόμφει, ‘had sent.’ Otherwise we should expect the aorist. In this late Greek the Latin usage, which has one tense only for aorist and perfect, misit, is perhaps incorrectly followed. See Winer's Grammar, p. 136 ed. Moulton. Cf. Or. 39, Arg. § 2 τετελεύτηκεν. [Mr F. H. Baynes defends this use of the perfect, regarding it as=πέπομφεν ἤδη, i.e. the position of affairs now, at the moment of the delivery of the present speech, is this, that the arbitrator has sent the case before the court.]

τὴν εὐθεῖαν γίγνεται It takes the course of an ordinary or regular action, εὐθυδικία. The accusative here is strangely and irregularly used, and perhaps παρὰ should be retained, ‘according to the ordinary practice.’ In showing that a special plea cannot be urged in this case, Chrysippus, or his advocate, goes into all the facts, just as they would appear in a common trial.

ἐπισημαίνεται ‘Remarks’; another late usage,—κατ᾽ ἀρχὰς, see § 4.—τὸ λέγειν, ‘the saying a man has done all the contract required him to do is no ground at all for pleading that the action cannot be brought.’ ‘That (he says) is the plea of one who is defendant in an ordinary trial, and rebuts a charge brought against him; not the plea of one who wants to show that there is no case against him at all.’ A παραγραφή, in fact, turned solely on the inadmissibility of a suit, e.g. on the ground that it belonged to another court or different jurisdiction. He quotes as a case of this in the next sentence, that contracts not made at or for a voyage to Athens could not be brought before an Athenian court.

τετήρηται ‘The same peculiarity is observed here as in the speech against Neaera, viz. that it is not spoken by one party only; but whereas there the division is plain, here it is confused and obscure: it appears to me however’ (i.e. to the grammarian Libanius) ‘that the second speech begins at ἀκούσας, &c (§ 21, where see note). Anyhow, it is clear that they are partners who bring this action against Phormion.’