Περὶ τοῦ Ἁγνίου κλήρου
. [Or. XI.] — ‘On the Estate of Hagnias’. — Theopompus, the speaker and defendant, possesses the estate of Hagnias. Half of this estate is claimed from Theompompus on behalf of his own nephew, the son of Stratocles. The form of the prosecution is an Information for maltreatment (εἰσαγγελία κακώσεως); the son of Stratocles being considered as an orphan whom his uncle, Theopompus, has wronged. The date is 359 B.C. — Attic Orators, II. 354 — 8. Theopompus had already, under a legal decision, taken this estate away from Phylomachè II. (see the stemma), daughter of his own second cousin Eubulides II. The essential points are these: — (1) Theopompus and Hagnias were the sons of ἀνεψιοί, first-cousins, and were therefore second-cousins to each other: (2) Eubulides II., father of Phylomachè II., was first-cousin of Hagnias.§§ 1 — 19.
Theopompus begins by reading the laws which regulate the succession of collateral kinsfolk to an estate; and shows that, by these, his nephew, the son of Stratocles, is excluded. There is no reason to suppose that the προοίμιον is lost. The ninth oration of Isaeus, περὶ τοῦ Ἀστυφίλου κλήρου (Attic Orators, II. 330), and the third, περὶ τοῦ Πύρρου κλήρου (ib. 339), begin with similar abruptness. §§ 1, 2. διὰ ταῦθ᾽...κληρονομίαν] ‘I have read you the laws, because the plaintiff contends that, under the first of them, the boy [the son of Stratocles] is entitled to half the estate; but this is untrue. For Hagnias was not our brother [ἡμῖν, Theopompus himself and the other second-cousins of Hagnias, § 10]; but the law, speaking of a brother's property, has given the inheritance — (1) first, to brothers, being sons of the same father, and the children of such brothers; this is the first degree of kinship to the deceased: but failing these, (2) secondly, the law calls to the succession sisters by the same father, and their children: failing these, (3) in the third degree (τρίτῳ γένει) it gives the preference to first cousins (ἀνεψιοῖς) on the father's side, continuing it to their children (μέχρι ἀνεψιῶν παίδων=μέχρι ἀνεψιαδῶν). (4) Failing these also, the law reverts to the direct line [εἰς τὸ γένος, the direct lineage on the maternal side, as opp. to collateral kinship on the paternal] and gives the ownership of the property [ποιεῖ κυρίους αὐτῶν, sc. τῶν χρημάτων] to the kinsmen of the deceased on the mother's side, under the same rules by which, in the first instance (ἐξ ἀρχῆς), it called the paternal kinsfolk to the inheritance’. The gist of the whole argument is that Theopompus, being the son of a first-cousin (ἀνεψιοῦ παῖς) is, under provision (3), in the succession on the paternal side, while his nephew, being the son of a second-cousin, is out of it.ταύτας ποιεῖ τὰς ἀγχιστείας, κ.τ.λ. ‘constitutes (recognises) these claims by kinship, and no others’: ἀγχιστεία, a degree of nearness to the testator such as the law of inheritance recognises, opp. to συγγένεια, natural kinship, which may or may not be ἀγχιστεία: see or. v. note on § 14, κατ᾽ ἀγχιστείαν. — συντομωτέρως: for the form, cp. Isocr. Panegyr. § 163, ἐρρωμενεστέρως, note, p. 311. — ταύτῃ, ‘to this effect’. προσήκει τῇ ἀγχιστείᾳ...ἔξω τῆς συγγενείας Schömann suggests προσήκει τῇ συγγενείᾳ — ἔξω τῆς ἀγχιστείας. But ἔξω τῆς συγγενείας, ‘outside of the kinship’,=outside of that kinship which the law recognises as constituting ἀγχιστεία.
ἀναβιβασάμενος...ὑπαναγινώσκων ‘I will therefore call him up here and question him before you, reading the provisions of the law, clause by clause’. ἀναβιβασάμενος, to the βῆμα from which either party in a law-suit spoke, Lysias In Theomn. § 15, note, p. 275: for the ἐρώτησις, cp. Lysias In Eratosth. § 24, ἀνάβηθι οὖν μοι καὶ ἀπόκριναι, κ.τ.λ., p. 70. In ὑπαναγιγνώσκων, ὑπό=leading him on gradually from point to point: cp. Xen. Anab. IV. 2. 16, Ξενοφῶν μὲν σὺν τοῖς νεωτάτοις ἀνέβαινεν ἐπὶ τὸ ἄκρον, τοὺς δὲ ἄλλους ἐκέλευσεν ὑπάγειν, ὅπως οἱ τελευταῖοι λόχοι προσμίξειαν, ordered the others to advance (only) gently, so that the rearmost companies might rejoin them.
ἀδελφιδοῦς...ἢ πρὸς πατρός The son of Stratocles (παῖς) was not, of course any one of these things. He was, to Hagnias, second-cousin once removed, — Stratocles and Hagnias having been sons of ἀνεψιοί, first-cousins. καὶ ὅπως μὴ...ἐρεῖς ‘And take care that you do not say’. Xen. Cyr. I. 2. 18, ὅπως οὖν μὴ ἀπολεῖ μαστιγούμενος. Goodwin § 46. 4. εἰ...ἠμφισβήτει...ἂν προσήκοι ‘If he were claiming my property [which he is doing], this would [on that supposition] be fitting’, etc.: but ἂν προσῆκεν, ‘this would now be [as it is not] fitting’. Cp. Dem. De Cor. § 206, εἰ μὲν τοίνυν τοῦτ᾽ ἐπεχείρουν λέγειν,...οὐκ ἔσθ᾽ ὅστις οὐκ ἂν εἰκότως ἐπιτιμήσειέ μοι. Goodwin § 54. τῆς ἀγχιστείας...τὸ γένος ‘the degree of the relationship’: cp. § 2, τρίτῳ γένει. So § 6, τοῦ γένους...μαρτυρίας: § 17, τὸ περὶ αὐτῆς γένος, note.
διόμνυσθαι...ἵνα μᾶλλον ἂν ἐπιστεύετο ‘(it was his duty to make an affidavit (διωμοσία)..., so that he might have had a better chance of being believed’. The addition of ἄν shows that ἵνα...ἐπιστεύετο is not only a final clause, but also an apodosis with a suppressed protasis: i.e. ἵνα ἐπιστεύετο, ὥσπερ ἐπιστεύετο ἄν, εἰ διώμνυτο. This is very rare: but cp. Plato Legg. 959 B, ζῶντι ἔδει βοηθεῖν, ὅπως ὅ τι δικαιότατος ὢν καὶ ὁσιώτατος ἔζη τε ζῶν καὶ τελευτήσας ἀτιμώρητος ἂν κακῶν ἁμαρτημάτων ἐγίγνετο,=ὅπως ἐγίγνετο, ὥσπερ ἂν ἐγίγνετο, εἰ οὕτως ἔζη. Goodwin § 44. 3, Note I. ἐμοῦ καταγν. τ. τὴν εἰσαγγελίαν ‘to decide against me on this Information’: Theopompus being prosecuted under an εἰσαγγελία κακώσεως, an Information charging him with maltreatment of an orphan, viz. his nephew. This was a special form of the γραφὴ κακώσεως. Any citizen might lay before the archon an εἰσαγγελία regarding alleged wrong done to parents, women, or orphans, — might address the court without limit of time, — and, if defeated, suffer no fine. There was no fixed penalty, but, as it might be ἀτιμία, Theopompus can speak of himself as κινδυνεύων ὑπὲρ τοῦ σώματος, — as having his civic existence at stake, § 35. — See Attic Orators, II. 354.
ἐγὼ γάρ, κ.τ.λ. See the stemma of the family, and §§ 1, 2. Nothing is known as to the embassy of Hagnias (πρεσβεύσων) noticed here. — οὐκ ἐφ᾽ ἡμῖν...κατέλιπεν, did not leave the property in our disposition,=οὐ κυρίους ἡμᾶς ἐποίησε τῶν ὄντων. ἐποιήσατο θυγατέρα ‘adopted a niece of his own as his daughter’. The adoption of a daughter was comparatively rare, since, unless a son was born to her, the continuance of the οἶκος was not secured. But other instances occur, e.g. in this speech, § 41, and or. VII., περὶ τοῦ Ἀπολλοδώρου κλήρου, § 4. Such exceptions illustrate the use of Attic adoption to gratify a personal preference, apart from the original object of perpetuating the family rites: see above on or. v. § 7, p. 366.
κατὰ τὴν διαθήκην ‘under the will’ — whereas Glaucon would not have been entitled to it by nearness of kinship, if there had been no will. On κατὰ διαθήκην or κατὰ δόσιν as opp. to κατ᾽ ἀγχιστείαν or κατὰ γένος, see or. v. § 14, note, p. 370. ἡ δ᾽ Εὐβουλίδου θυγάτηρ, κ.τ.λ. ‘But the daughter of Eubulides [Phylomachè II. — see stemma], supported by her accomplices [meaning her κύριος or male representative, or. v. § 10, note, p. 367], claims the estate at law, and obtains it, on defeating those who had claimed it under the will; — though she was not within the prescribed degrees, but had merely conceived the hope (it seems) that we [the kinsmen] would not oppose her, because we had not resisted the will either’. — λαγχάνει (δίκην) τοῦ κλήρου: or. v. § 16, note, p. 371.
ἡμεῖς δέ...ὁ κλῆρος ‘We,...since the claim on the estate had been opened to the next of kin, all prepared to bring our action’: i.e. the διαθήκη which had given the estate to Glaucon had precluded all claims on the score of ἀγχιστεία. Now, however, this will had been set aside in favour of Phylomachè's claim as a kinswoman. As against her, the other kinsfolk enter their claim, on the ground that their ἀγχιστεία takes precedence of hers, ἐγὼ καὶ Στράτιος κ.τ.λ.... παρεσκευάζοντο: cp. Eur. Bacch. 974, ὁ νικήσων δ᾽ ἐγὼ | καὶ Βρόμιος ἔσται. μόνος Τῶν πρὸς πατρὸς ὢν ἀνεψιοῦ παῖς This is a quibble. Theopompus claims the inheritance under provision (3) of the law cited in §§ 1, 2, on the ground that he is the child of a first- cousin on the father's side. But Theopompus was ἀνεψιοῦ παῖς only in respect to the father of Hagnias. In respect to Hagnias he was not ἀνεψιοῦ παῖς, a first-cousin once removed, but a second-cousin. Theopompus was not really in the ἀγχιστεῖαι at all: still less, of course, was his nephew, the son of Stratocles. Phylomachè, as daughter of a paternal first-cousin of Hagnias, had a better claim than any living relative. If Phylomachè had died, then the next heir would have been Glaucon, who would have claimed under provision (4) as a brother of the testator by the same mother (though not ὁμοπάτριος). The decision by which Theopompus took the estate from Phylomachè was unjust. ἐγίγνετο ‘devolved’: cp. or. v. § 13, note, p. 369.
τῷ δὲ γνώσεσθε...σκεπτέον ἐστί ‘But where are you to find proof that I had an admissible claim of kinship, while their issue — this boy included — had none? The law itself will show. That the succession includes first-cousins on the father's side, and continues it to their children, is admitted on all hands: but whether, after us [i.e. children of firstcousins], the law gives it to our children — that is the question’. τοῖς ἐξ ἐκείνων γεγονόσιν, viz. the offspring of Stratius and Stratocles, who, like Theopompus, were really second-cousins of Hagnias: see last note.
ἀλλὰ ἀπέδωκε ‘but has assigned the inheritance to the kin of the deceased on the mother's side’, — under provision (4) of the law cited in §§ 1, 2, where see note. κατὰ ταὐτὰ...ὑπειρημένον ‘on the same terms which were indicated in the first instance’, viz., in the case of the kinsfolk πρὸς πατρός. Cp. § 2, κατὰ ταὐτὰ καθάπερ τοῖς πρὸς πατρὸς ἐξ ἀρχῆς ἐδίδου. — ὑπειρημένον, said by way of preliminary definition: see Dem. In Aristocr. § 53, διδόντος γὰρ τοῦ νόμου σαφῶς οὑτωσὶ καὶ λέγοντος ἐφ᾽ οἷς ἐξεῖναι κτεῖναι, οὗτος ἅπαντα παρεῖδε ταῦτα, καὶ γέγραφεν, οὐδὲν ὑπειπών, ὅπως ἄν τις ἀποκτείνῃ, τὴν τιμωρίαν: i.e. though the law specifies some cases (of involuntary homicide) as exempted from the penalty, this man has set down the penalty without any preliminary reservation (οὐδὲν ὑπειπών), no matter what the circumstances of the homicide may be. Cp. Dem. De Cor. § 60, ταῦτα ἀναμνήσω καὶ τούτων ὑφέξω, τοσοῦτον ὑπειπών, ‘with only this much of preface’. οἷς δὲ μηδ᾽ εἰ Καὶ τετελευτηκὼς ἦν ἐγώ ‘But how can they to whom, even if I were dead, the law does not grant the inheritance, suppose that the succession is theirs while I live and am in legal possession?’ [under the verdict which took the estate from Phylomachè, § 18]. The mss., μηδ᾽ εἰ τετελευτηκότες ὦσιν, ὡς ἐγώ: Scheibe, following Reiske (with the change of εἰ to ἐάν), μηδ᾽ ἐὰν τετελευτηκὼς ὦ ἐγώ: but εἰ should be retained, reading, with Dobree, ἦν for ὦ.
καὶ γὰρ ὁ τούτου πατὴρ...ἐκείνοις ‘For the boy's father (Stratocles) was related [to Hagnias] only in their degree’: ὁμοίως ἐκείνοις, only in the same degree with those who were cousin's sons, like Theopompus himself and Stratius: ἐκεῖνοι denoting that class or grade of kinsmen, just as below § 18 ἐκείνας is similarly used. Dobree is not right then, I think, in accounting for ἐκείνοις by the disappearance of words alluding to the children of Stratius (§ 15): the text is sound. τουτονὶ...καθιστάναι ‘that this man [the speaker on behalf of the παῖς] should resort to vexatious proceedings, and that, though he did not think fit to contest the case or to lodge a rival claim [παρακαταβάλλειν] when I was going to law for the estate — the proper moment for the decision of any issue that he had to raise on such points — he should now make this boy a pretext for annoying me with litigation, and bring my civil existence into peril’. The παρακαταβολή was a deposit made (to be forfeited on defeat) by one who claimed the whole of an inheritance from another. Thus, when Theopompus ἔλαχε τοῦ κλήρου against Phylomachè (§ 15), it was necessary for him to make such a deposit, as the estate was already hers. If the son of Stratocles had claimed the whole estate from Theopompus, then he too, must have proceeded by παρακαταβολή: but, in fact, he claimed only the half, ἡμικλήριον (§ 1). — επὶ τοῦ παιδὸς ὀνόματι, ‘in the boy's name’, not as meaning, ‘on the boy's behalf’ (ὑπὲρ τοῦ παιδός), but, ‘making him a pretext’. Better ἐπὶ τῷ τοῦ π. ὀνόματι. Cp. Dem. Adv. Leptin. § 126, ταῦτ᾽ ἐπὶ τῷ τῶν θεῶν ὀνόματι ποιεῖν ζητοῦσιν...τὸ τῶν λειτουργιῶν ὄνομα ἐπὶ τὸ τῶν ἱερῶν μεταφέροντες ἐξαπατᾶν ζητοῦσι. — περὶ τῶν μεγίστων, because he might incur ἀτιμία: § 35, κινδυνεύων ὑπὲρ τῶν σώματος. Cp. § 6, note.
τῶν ὁμολογουμένων εἶναι τοῦ παιδός, κ.τ.λ. ‘the unquestioned property of the boy’, viz. the patrimony left to him by his father Stratocles. Theopompus was guardian, ἐπίτροπος, of his nephew: see § 27, τῆς δὲ πρὸς ἐμὲ λήξεως ἐμποδὼν εἶναι τοὺς νόμους: οὐ γὰρ εἶναι τοῖς ὀρφανοῖς κατὰ τῶν ἐπιτρόπων. Hence διῴκουν here. — ὥσπερ οὗτος, meaning that the speaker was (by this law-suit) injuring the interests of his client, the boy. ἐμὰ εἶναι ἐψηφίσασθε alluding to the verdict of the court which took the estate from Phylomachè and gave it to Theopompus, § 18. δόντες, ‘after allowing anyone who pleased to dispute it’, in reference to the claim put in also by the mother of Hagnias, ib. ἐπὶ τούτοις...ἀγῶνας παρασκευάζειν ‘get up such law-suits for this property’: cp. Lysias In Agor. § 12, p. 79, ἐκείνῳ... δικαστήριον παρασκευάσαντες. — ἐπὶ τούτοις, not strictly ‘with a view to’, but ‘on the ground of’, as just before, ἐφ᾽ οἷς... κρίνεσθαι.
οὐδὲ κατὰ μικρόν ne paululum quidem, ‘not in the slightest degree’. Cp. or. v. § 10, p. 168, οὐδὲ κατὰ τὸ ἐλάχιστον μέρος. But in Ar. Vesp. 702, ἐνστάζουσιν κατὰ μικρὸν ἀεί, paulatim, ‘little by little, gradually’: Xen. An. VII. 3. 22, ἄρτους διέκλα κατὰ μικρόν, minutim, ‘in little bits’. μαθήσεσθαι...ἀκούσαντας ‘But I think that you will understand the case [περὶ αὐτῶν neut.] still more exactly in the light of further comments [καὶ ἐκ τῶν ἄλλων opp. to ἐκ τῶν ἤδη εἰρημένων], when you have heard the history of my action in claim of the estate’: join μαθήσεσθαι περὶ αὐτῶν, ἀκούσαντας τὴν ἐμὴν ἐπιδικασίαν ὡς γέγονεν. ὁ νῦν ἐμὲ εἰσαγγέλλων, κ.τ.λ. ‘who now lays the Information against me’, the εἰσαγγελία κακώσεως: see on § 6. — παρακαταβάλλειν ὑπὲρ τοῦ παιδός, ‘to institute a claim on the boy's behalf’: see on § 13. *οὐδὲν δι᾽ ἄλλο <ἢ ὅτι> οὐδὲν αὑτοῖς ἐνόμιζον προσήκειν] [they abstained from going to law] ‘for no other reason than because they thought that they had no claim to this property’. Cp. § 16, εἰδότες ὅτι ἔξω ἦσαν τῆς ἀγχιστείας. I prefer this to Scheibe's conjecture, οὐδὲν ἄλλο ἢ οὐδὲν αὑτοῖς νομίζοντες προσήκειν, ‘simply because they thought’, etc. Reiske suggests, οὔτε (οἱ ἄλλοι) οὐδέν, or οὔτε (κατὰ γένος οὔτε κατὰ διαθήκην) οὔτε δι᾽ ἄλλο οὐδέν.
ἐπεὶ οὐδ᾽ ἂν οὗτος, κ.τ.λ. ‘since even the prosecutor would not be vexing me now, if I allowed him to plunder the boy's property and did not thwart him’: i.e. as on the former occasion the sons of Stratius refrained from litigation, so the son of Stratocles would refrain now, did not this pettifogger instigate him, out of spite, because I (as ἐπίτροπος of the boy) protect my ward's property from his designs. οἱ...πράττοντες Cp. § 9, τῶν αὐτῇ συμπραττόντων, ‘her accomplices’, note. τῷ Στρατίου παιδί ‘whose relationship (to Hagnias) was properly [δικαίως, as opp. to her allegation] only the same as that of the son of Stratius’. For τῷ Στρατίου παιδί we must read, either with Schömann, τῷ Στρατοκλέους παιδί, (the nephew of Theopompus,) which seems best: or with Baiter, τοῖς Στρατίου παισί. — The assertion made here is false: see stemma. Eubulides, the father of Phylomachè, was the first-cousin of Hagnias. Stratius, Stratocles and Theopompus were only his second-cousins. See on § 10, πρὸς πατρὸς ὢν ἀνεψιοῦ παῖς. οἱ κύριοι τῆς Ἁ. μητρός ‘the legal representatives of the mother of Hagnias’: see or. v. § 10, note, p. 367. ἦσαν οἷοί τε ‘were capable’=ἐτόλμησαν: cp. Dem. In Mid. § 85, οἷός τ᾽ ἦν πείθειν αὐτόν, ἣν κατεδεδιῃτήκει, ταύτην ἀποδεδιῃτημένην ἀποφαίνειν, ‘he was capable of pressing the arbitrator to return the award given against him as if it had been an award in his favour’. ἀντιδικεῖν οἷοι (Scheibe), without τε, would mean merely, ‘the kind of men likely to contend’, and is unsuitable here. See or. VIII. § 21, p. 192, κομίζειν οἷος ἦν, ‘I felt inclined to carry him away’.
ὅ τι ἀντιγράψωνται περὶ τῆς ἀγχ ‘what plea of kinship they should oppose to mine’: ἀντιγρ., deliberative subj., vivid for ὅ τι ἀντιγράψαιντο. — ἀντιγραφή, the plea put in against his ἐπιδικασία (§ 15) or claim. ἡ μὲν...ἔχουσα...τολμήσαντες ‘the possessor of the estate [Phylomachè, daughter of Eubulides], and those who set forth her claim in kinship, as they misrepresented the matter, were easily convicted by me, then and there, of having audaciously framed a statement devoid of truth’. τὸ περὶ αὐτῆς γένος, lit. ‘the degree of relationship which concerned her’, i.e. on which her claim rested: see § 5, τὸ γένος τῆς ἀγχιστείας, note. — τότε, at the time, — finally disposing of her claim, whereas the mother's claim was revived in a new form. — γράψαι, not=the technical ἀντιγραψάμενοι, but simply of a statement in writing. Dobree conj. οὐκ ἀληθῆ γράψαι, but οὐκ ἀληθές τι=οὐδ᾽ ὁτιοῦν ἀληθές. Cp. § 18, αὐτῶν οὐκ ἴσχυσέ τι. γένει μέν, κ.τ.λ. ‘Since, though her collateral kinship [with her son Hagnias] was the same as my own, (for she was the sister of Stratius,) she was excluded by the law which gives the preference to males, they dropped that plea [of cousinship], and, thinking to get the better of me, described her as mother of the deceased’. — Polemon, father of Hagnias, had married the daughter of his own first-cousin. Hence the mother of Hagnias was at the same time the second-cousin of her son. Her claim was, on this score, the same as that of Theopompus: his was better only because males were preferred to females. συγγενέστατον...ἀγχιστείαις See or. v. § 14, note, p. 370. — ἦν= ‘is, as I granted’: Goodwin § 11, note 6.
εἶτα Γραψάσης ἀνεψιοῦ Παιδὸς εἶναι...ἐξήλεγξα ‘Next, when she described herself as the daughter of a firstcousin [and no longer mother of Hagnias], I proved that daughters of first-cousins, too, were not in the succession [since a first-cousin's son existed]. Thus I established my claim (ἐπεδικασάμην) before you’, etc. — ἐκείνας: see on ἐκείνοις, § 13. — Scheibe proposed to read, γράψας ἀνεψιοῦ παῖς (Sauppe παῖδά με) εἶναι, κἀκείνας ἐξελέγξας...οὕτως ἐπεδικασάμην. But there was no occasion for him to describe himself anew as ἀνεψιοῦ παῖς, since that was the quality in which he had claimed from the first. καὶ αὐτῶν οὐκ ἴσχυσέ τι ‘and of these pleas not one proved valid; — for the possessor of the estate, it availed not that she had already got a verdict against the claimants under the will [i.e. against Glaucon, § 9]; for the other, it availed not that she was the mother of the testator’. — οὐκ ἴσχυσέ τι: cp. οὐκ ἀληθές τι, § 17, note. ἐμοὶ...τὴν ψῆφον ἤνεγκαν ‘gave their vote in my favour’. Cp. Dem. In Mid. § 51, τούτοις ἀξιοῖ δοῦναι τὴν ψῆφον ὑμᾶς.
ἀντιδικῆσαι τῷ παιδὶ τοῦ ἡμικληρίου ‘to claim the moiety of the estate on behalf of the boy’, = ὑπὲρ τοῦ παιδός. After ἀντιδικεῖν, the adversary is usually designated by πρός τινα, not τινί (cp. § 16, πρὸς ἐμέ): in Dem. or. XLI. Adv. Spudiam, § 13, πῶς ἂν ταῖς τούτων διαβολαῖς ἀντιδικοίην, the figurative sense (=‘contend against’) explains the dat.
