be tainted with pollution, yet, if he afterwards condones the crime and releases him, he has no longer the right to force the same person into exile. Nor again, where the murdered man has released his murderer before he died, is it lawful for any of the relations to prosecute; but those whom the laws sentence, upon conviction, to banishment and exile and death, if they have been released, are by that word "release at once absolved from all penal consequences. Then, upon questions of life and all that is most precious shall a release be valid and binding, but on questions of money and claims of minor importance shall it be of no effect? Surely you will never allow this. The worst part of it would be, not that I should fail to obtain justice before your tribunals, but that a sound rule of practice, established time out of mind, would now be abolished.

1

'They did not let our property"-perhaps our opponents will say. No; because your uncle Xenopithes did not wish it let, but, after the prosecution had been instituted by Nicidas, persuaded the jury to allow him to manage it, as everybody knows. "The guardians plundered us grossly." Well; you have received from them the compensation which you agreed to take; and surely you are not to get it again from me. But, that you may not suppose for a moment, men of the jury, that there is anything in the point— although it is manifestly inequitable that, after having settled with the offending parties, they should accuse persons who know nothing about the matter-notwithstanding this, Xenopithes and Nausimachus, if you believe that your case is so wonderfully good, return us the three talents and then go on with it. As you got so much for not pressing these charges, you are bound to hold your tongues until you have returned the money: you must not make the charges and keep the money too; that is the extreme of unfairness.

Very possibly also they will talk of the galleys which they have equipped, and say that they have expended their pro- perty for your benefit. That they will assert what is falsethat they have wasted a considerable part of their substance, while the state has had but a trifling portion of it, and that they will claim at your hands a gratitude which they have

1 See the second Appendix to this volume.

not earned or merited all this I will pass by, men of the jury. I hold myself, that you ought to have a feeling of gratitude to all who bear the public burdens. But to whom should you be most grateful? To those who, while they perform that service which is useful to the state, do not create what every one will say is a shame and a reproach. Now those persons, who in serving the public offices have dissipated their private property, bring odium upon the state instead of advantage; for no one ever blames himself, but says that the state has deprived him of his substance. Those on the other hand, who discharge cheerfully the duties which you assign to them, and at the same time preserve their property by the general prudence of their lives, are not only preferable to the other class in this respect, that they both have been useful and will be so again, but also because you get their services without reproach. It will appear, that we have so conducted ourselves in relation to you of these men I shall say nothing, for fear they should charge us with calumniating them.

I shall not be surprised if they try to shed tears and move your compassion. I conjure you all on the other hand to remember, that it is infamous, or rather iniquitous, after having wasted their substance in gluttony and debauchery with Aristocrates and Diognetus and men of that sort, in a scandalous and profligate manner, to come now with crying and whining, in order to get the property of other people. You had reason to weep for your former conduct: this is not the time to weep, but to show that you never gave a release, or that you can sue again for the matters released, or that it is right to commence an action twenty years afterwards, when the law has prescribed five years as the limit. These are the points which the jury have to determine. If they are unable to show these things, as they will be unable, we entreat you all, men of the jury, not to abandon us to the mercy of our opponents, not to give them a fourth property in addition to three others which they have mismanaged that namely which they received from their guardians without dispute, that which they got to compromise their actions, that which they lately wrested from Esius by a judgment-but suffer us, as we are entitled, to retain what is our own. It is of greater service to you, remaining in our hands, than if it was in

theirs; and surely it is more just that we should have what belongs to us, than that they should have it.

I see no reason to add anything more; as you seem fully to understand what has been said. Pour out the water.

THE ORATION AGAINST BOOTUS-I.

OR, THE ORATION FOR THE NAME.

THE ARGUMENT.

THE proceeding which gave rise to the present speech was one of a singular nature, for which no parallel can be found in our own law, but for which the usages of Attic life seem to have afforded a reasonable ground. Mantias, the father of the plaintiff, was a citizen of the Acamantian tribe and township of Thoricus. He married a daughter of Polyaratus, a widow, with whom he received a portion of a talent, and by whom he had two sons, the plaintiff, and another who died young. The plaintiff was brought up in his father's house, named Mantitheus, and registered in that name in his township. Mantias at the same time had a mistress, named Plangon, the daughter of Pamphilus, an Athenian citizen. By her he had two sons, whom for many years he did not acknowledge; but after his wife's death he seems to have married Plangon, and her eldest son, (the present defendant,) soon after he had grown to manhood, took legal proceedings to establish his own and his brother's birthright.

The claim was resisted, and the dispute referred to arbitration; when Plangon resorted to an extraordinary artifice to procure a judgment in her son's favour. She persuaded Mantias to stake the cause upon an oath to be tendered to her before the arbitrator, on the terms that, if she swore the children were his, he should adopt them, if she declined to swear it, he should be quit of them altogether; and she gave him a solemn promise on oath, that she would decline the oath when tendered to her, stipulating to receive a sum of money, which was deposited for her in the hands of a third party. Notwithstanding this promise, when the oath was tendered to her before the arbitrator, she accepted it, fathered the children on Mantias, and caused the award to be pronounced against him.

(As to the tendering of oaths, the reader is referred to Vol. III. Appendix X. page 384.)

The award being under the circumstances conclusive against him, Mantias took the sons of Plangon to the meeting of his clansmen at the Apaturia in the usual way, and entered them in the register, the elder in the name of Bootus, the younger in that of Pamphilus. A few years after, and before he had introduced them to the members of his township, Mantias died. Bootus, dissatisfied with the name given to him by his father, which was that of his maternal uncle, took the step which led eventually to the present action. He went

to the townsmen of Thoricus, and got them to register him in the name of Mantitheus, alleging that he, being the eldest brother, was entitled to the name of his paternal grandfather. The exact time when this took place is not mentioned; nor is the sequence of events by any means clear.

(On the subject of Attic names, see Becker's Charicles, Excursus I. page 219. As to the registers of the clan and the township, see Vol. III. page 274, and the first Appendix to this volume.)

Mantitheus, the present plaintiff, after his father's death, received his half-brothers into the house, and consented to share the inheritance with them. He claimed however a talent out of the estate, as the marriage portion of his mother. Thereupon Bootus set up a counterclaim of a hundred minas, as the portion which Mantias had received with his mother Plangon. Under the advice of friends, they divided among them the bulk of the effects, and left the house as a reserve fund, to abide the issue of this dispute.

I have said that Plangon seems to have been married to Mantias after his first wife's death, which happened many years before his own. This fact is not indeed mentioned anywhere in the plaintiff's speech; he says on the contrary, that even after his mother's death he would not bring Plangon into his house, and he insinuates that there never was any marriage between them; but he does not expressly deny it, and from the absence of any express denial, as well as from the concessions of the plaintiff himself, the fact of Plangon's marriage must, as I conceive, be inferred. For, had she never been more than a concubine, her sons could have had no heritable rights. Mantitheus having commenced a suit against his half-brothers for his mother's portion, and they a similar one against him, both were referred to the arbitration of one Solon. A good deal of time having been wasted, through the wilful delays (as the plaintiff Mantitheus alleges) of his opponents, Solon died without having made any award. The causes were then referred to another arbitrator, who gave judgment in both for Mantitheus. In that where Bootus was plaintiff he had attended, but offered no evidence to support his case; in the other he suffered judgment to be given against him by default. He disputed however the legality of the latter judgment, on the ground that he had been sued in the wrong name; and Mantitheus found himself compelled to commence a fresh suit against him in the name which he had improperly assumed. This (as we learn from the second speech against Boeotus, p. 1013,) occurred in the eleventh year after the father's death.

Meanwhile Mantitheus had been annoyed in various ways by Bootus and his brother. They had made other pecuniary demands upon him, and succeeded in recovering them. Boeotus, having on one occasion come to blows with him, cut himself afterwards in the head, and charged his brother before the Areopagus with having maliciously wounded him. He conducted himself so profligately, and kept such bad company, that Mantitheus, having a grown-up daughter, was compelled to leave the house which the father had left them. The identity of names had been attended with some unpleasant occurrences, besides that already mentioned. Mantitheus

having been elected to a military command, Bootus pretended it had been conferred on himself. A judgment having been recovered against Bootus in the assumed name, he gave out that his brother was the party liable. A charge of desertion had been preferred against Bootus, and the plaintiff had been summoned upon it. And the defendant's general conduct was so extravagant and reckless, that his brother was in continual fear of being mistaken for him. Under these circumstances Mantitheus commenced an action against Bootus, in order to compel him to abandon the name which he had assumed. The arguments in the plaintiff's speech are chiefly upon the law of the case, to show that the assumption of his name was a wrongful act, which subjected Boeotus to an action.

He contends on general grounds, that a son had no right to assume a different name from that which his father had given him; that such a thing as two brothers having the same name was wholly unprecedented; this being so, as the facts of the case established that he (the plaintiff) had by the gift of his father a prior title to the name of Mantitheus, the defendant's usurpation of it was illegal. Even were Bootus the elder by birth, which the plaintiff denied, the seniority in regard to name belonged to the plaintiff; for Bootus was only to be regarded as the son of Mantias from the time of his introduction to the clansmen.

There were reasons both of a public and a private nature, why the action ought to be maintainable. It was manifest, as both plaintiff and defendant were sons of the same father, if their personal names were the same, there would be no means of distinguishing them. Each would be called "Mantitheus son of Mantias of Thoricus." This would lead to ambiguity and confusion. If either of them were nominated to any public office, such as that of Choragus or Gymnasiarch, it would be uncertain which of the brothers was intended; each might endeavour to shift the burden on the other, and the public service would be neglected. Some of the most important departments of the administration might suffer in this way; as the collection of the property-tax, or the musters of troops. When the nomination was to an office of honour or profit, as to that of Archon or Juror, mischief would follow from the opposite endeavour. Each would contend that he himself was the party chosen; and this would lead to unseemly wrangling and contests at law. The mischiefs of a purely private character were no less serious. The pseudo-Mantitheus might commit offences or get into scrapes, of which the blame or the penalty might fall upon the real Mantitheus. Nothing was more likely, when they looked at the persons with whom Bootus associated, and his vicious and profligate course of life. Should a civil or criminal charge be brought against him, his brother, from the confusion of names, might become amenable to legal process. If a judgment were recorded against the pseudoMantitheus, the real Mantitheus might be liable to execution, or become a state-debtor; or supposing it to be known at the time who the real debtor was, after the lapse of some years, if the debt were not paid, the two brothers might be confounded, and the debt of Bootus might be enforced against the plaintiff's children. Again,