The Range of Speeches, Authorship, and the Authenticity of Inserted Documents
Nine of the eleven speeches in this volume concern inheriting an estate, or recovering debts owed to an estate, or exchanging someone else's estate for one's own. One of the remaining two speeches (Dem. 39) belongs to a trial that emerged in the course of an inheritance dispute, when one party delayed a lawsuit against his half-brother in order to sue him to stop using the same name as his. The other odd (non-estate) speech (Dem. 47) belongs to a trial that originated in a request to return naval gear: a fight broke out between two men, each sued the other for assault, and the worthy fellow who was found guilty in the first case is now suing the witnesses of the other for giving false testimony in his trial. Few of the speeches can be precisely dated; most seem to belong to trials in the 340s. Oration 41 has no dating indication at all but may have been written early in Demosthenes' career as a logographer (late 360s?) and so may be the earliest speech in this volume; the latest is 42, possibly composed ca. 330 BC, and certainly not by Demosthenes.
Diversity amidst similarity of incident in the "estate cases" is remarkable. The plaintiffs in 40 and 41 are seeking to obtain money owed them: one plaintiff is after the dowry owed his mother, while the other, the remainder of the dowry owed his wife; both seek the money from a kinsman (the one from his half-brother, the other from his brother-in-law), and both are anxious to win their cases before the estates of recently deceased parents are divided among the heirs. In 42, the speaker, a member of the highest tax bracket, has been assigned the duty of equipping a trireme for naval service but claims he lacks the means to do that. By an institutionalized, legitimate, and (to us) bizarre process (antidosis), he challenges Phaenippus to carry out the task instead of himself and if not, to exchange properties. Phaenippus has refused and now the Generals are presiding over an adjudication that will determine which of the two men has the better claim (the more valuable estate) for carrying out the trierarchic service.
The advocate (synegoros) in 43 makes a plea in an adjudication of an estate (diadikasia) for his natural-born son to win the inheritance of a kinsman named Hagnias who died at least thirty years earlier; he has had the boy adopted to his long-dead grandfather Eubulides (another bizarre but legitimate process), and the adoption has made the boy a closer kinsman to Hagnias than either the former or current possessor of the estate. The advocate in 44 makes a plea in behalf of his elderly father against their kinsman Leochares on a charge of false witnessing in a trial emerging from a dispute over the estate of Archiades who also died decades earlier; Leochares, he maintains, lied when he claimed he was Archiades' legitimate son via a posthumous adoption: Leochares' grandfather, father, and brother had each successively been adopted to the same dead Archiades; now that Leochares' brother has died while in possession of the estate, the family's manipulative monopoly on adoptions must end, and the court should award the estate to the nearest kinsman, the speaker's father.
Speeches 45 and 46 are a pair, the first and second speeches delivered by Apollodorus in a trial against his kinsman Stephanus on a charge of giving false testimony in 350/49 BC. The trial emerged from an earlier case initiated by Apollodorus against his father's former bank manager Phormion in an attempt to recover debts owed to his father's estate; that case never made it to court, but the hearing that barred its entrance—the one in which Stephanus allegedly gave his false testimony—did (36). The first-class scoundrel who is the speaker of 48 sues his brother-in-law Olympiodorus for damages. He alleges that he breached an agreement by which they were each to make a separate claim upon the estate of a kinsman who died rich and childless; whoever of the two won the estate was to share it with the other; Olympiodorus won but did not share. In 49, Apollodorus sues Timotheus son of the famous General Conon, probably ca. 362 BC, to recover a number of loans that Apollodorus' father had made to him during the years 374–372.
It is likely that Demosthenes himself wrote only three of the speeches (39, 41, and 45). Many scholars have wanted to wrest 45 from him, on the grounds that the logographer who had written For Phormion (36) and had so brilliantly and mercilessly attacked Apollodorus there would not have turned around a couple of weeks later to assist him by writing the brilliant attack on Phomion's witness Stephanus (45). Apollodorus probably delivered both speeches (45 and 46) but wrote only the second. Apollodorus is also the author of Against Timotheus (written at least a dozen years earlier than 45 and 46) in which he brings suit to recover the loans mentioned above. Four other speeches in the Demosthenic corpus are ascribed to Apollodorus (50, 52, 53, and 59), all from trials initiated or pleaded by him. Many scholars think that Apollodorus additionally composed 47 (Against Evergus and Mnesibulus on a charge of giving false testimony); if that is so, then that speech is our only example of Apollodorus' activity as a logographer.
The remaining "non-Demosthenic" speeches in this volume (40, 42, 43, 44, and 48) have no identifiable author but nonetheless appear to be authentic products of fourth-century speechwriters and not of later rhetoricians creating exercises for their students. Orations 43 and 48 share stylistic similarities that have led some scholars to ascribe them to the same (unknown) author. Expert critics of the nineteenth and twentieth centuries used mainly subjective grounds to deny Demosthenes' authorship: inferior argumentation and style (including the frequency of hiatus and tribrachs) are not worthy, so they claim, of our author. Contemporary critics are generally less ready to be so avowedly subjective; after all, changes of style may be adaptations for particular clients. Readers must develop their own expertise and opinions. The translator shares many of the prejudices of the nineteenth-century German scholar Friedrich Blass and has sown them freely in the introductory essays: that speeches in which the argumentation is lifeless and not lucid but void of legal finesse and repetitive and naïve, in which material is adduced without relevance and order, and in which sentences run on without articulate direction—such compositions cannot have been Demonsthenes'.
The order of the speeches in modern editions follows in the main the order that appears in the one medieval manuscript that preserves all sixty-one speeches (F). It would seem that whoever first made a collective edition of Demosthenes in antiquity (perhaps during the Hellenistic Age in the Library of Alexandria) arranged the speeches not only on the basis of content (as the collocation of "estate cases" suggests) but also on the basis of the perceived remedy (not necessarily perceived correctly) by which the case was brought to court. Among the eleven speeches in this volume, Orations 40 and 41, while concerning the recovery of dowry, may have been brought to court not by an "action for dowry" (as the ancient titles to the speeches suggest) but by some other remedy (see the Introduction to those speeches). Orations 43 and 44 both have much to do with posthumous adoptions in claiming an estate, but 43 comes to court as an adjudication of the estate and 44 comes as an action for false testimony, which, if successful, is likely to be followed by an adjudication. Orations 45 and 46 belong to the same trial, an action for false testimony; the impugned testimony concerns a challenge from one party to the other regarding the identification of a document as the will of Apollodorus' father. Oration 47 is likewise an action for false testimony, and the impugned testimony once again concerns a challenge, this time regarding the production of a slave to provide information under torture.
Among the three principal medieval manuscripts that contain these particular speeches (39–49), one of them (S) puts Speech 36 immediately before Speeches 45 and 46. The arrangement is perfectly comprehensible: the testimony presented in 36 became the subject of dispute at the subsequent trial for which 45 and 46 were composed and delivered. In the arrangement of the two other medieval manuscripts (F and Q) with these speeches, however, 36 is grouped with 32–38, all speeches belonging to cases that fall under paragraphe, a legal procedure for objecting that a case is not admissible in court; and 45 and 46 are followed by 47, all speeches belonging to trials for false witnessing. Procedure, then, became a major ordering principle early on, vying with content.
Documents (usually witness testimonies and laws, but also challenges, contracts, and oracles, among others) associated with the presentation of the case in court are often cited in the course of an oration: a speaker now and again will round off one bit of narrative and address the judges and then the secretary, "That you may know I'm telling the truth, please read the testimony of So-and-So"; or he might pause after depicting his own or his opponent's conduct and bid the secretary (as he does at 43.16), "Now please read the law, according to which there is to be a summons of the individual who is in possession of the estate." Following such requests, our modern texts in most cases print only the word "Depositions" or "Law," and the speech immediately resumes—without having printed the contents of the testimony or law because those documents have not survived. Some of the medieval manuscripts, however, do preserve documents for a small number of speeches. Three in this volume have court documents intact: 43, 45, and 46. Experts who have studied the manuscripts do not believe that the documents were copied into the texts when they first circulated in Athens but may have been added later, perhaps by Hellenistic scholars who found the laws (or decrees or oracles) in collections in the Library of Alexandria or perhaps (e.g., in the case of witness testimonies), in separate dossiers attached to the end of the speeches; possibly some (or many) documents were forged by later rhetoricians, either to display their cleverness or to give greater enjoyment to their students. In any case, the authenticity of preserved documents is always questionable and must be assessed on an individual basis. In 43, 45, and 46, aside from numerous witness depositions and an occasional challenge, lease, will, and oracle, nineteen laws have been inserted. On each occasion, I have offered, usually in the footnotes, brief arguments for their authenticity (usually based on their language and corroboration from other sources) or fraudulence. Some of the inserted laws cover important topics, for example, a portion of "Dracon's homicide law" (cited at 43.57) for which we possess an extant inscribed version; a law of intestate succession (cited at 43.51 and discussed in V below); and a "Solonian law on adoption" (or "on wills"), perhaps the most difficult of all (cited at 46.14).
As the rhetoricians of antiquity recognized, the best way to understand a case is by identifying the procedure or remedy by which it came to court. The rhetoricians were teachers, and the ancient speeches served as models for newer generations of advocates and scholars. In the introductions to each of the speeches, I give a brief discussion of the remedy and dispute. For 43, 44, and 45, I have written lengthier essays; these are difficult speeches, and I have tried to raise interesting questions and in some cases to offer quite provocative solutions. Since so many of the speeches concern inheritance and other family and civic institutions, I have included here in the "Introduction to This Volume" a discussion of the most important topics: I. Marriage, legitimacy, and natural children; II. Adoption; III. Paternal acknowledgment and introduction to phratry and deme; IV. Claiming an estate; and V. The law of intestate succession. In the introductions and notes to the individual speeches, I frequently make reference to these treatments.
I. Marriage, Legitimacy, and Natural Children
Marriage was the essential institution for the preservation of oikoi ("families") in Athens. Marriages produce children to carry on the traditions of oikoi, including the maintenance of household deities and cult and the burial of deceased parents; the births of children prevent oikoi from becoming extinct. In the fourth century when these speeches were written, marriages between citizens and foreigners were unlawful: a male citizen, if he chose to marry, must marry an Athenian woman; a metic ("resident foreigner"), if he chose to marry, was prohibited from marrying an Athenian. By law, only two Athenian parents could produce a citizen child; it is a matter of controversy whether the two parents had to be married to each other. If, however, they were married, and if the father acknowledged the child and carried out appropriate registrations for children born from citizen marriages (see III below), then one could say that, given the availability of witnesses to these various ceremonies, marriage was not only an institution for the preservation of oikoi, it was also the most reliable producer of new members to the citizen body. There were no birth records in Athens. Children born of unmarried Athenians would find it more difficult to prove their citizenship than children born in wedlock: the former would not have the witnesses to paternal acknowledgment and registrations that were the norm for the latter. The children of unmarried Athenians were also unable to inherit from their fathers.
There were two forms of marriage in which legitimate citizen children might be born. In one, the girl's kyrios (her father or homopatric brother or paternal grandfather, who acts as her legal authority or representative) "pledges" or "contracts" (engyai) her to her future husband. Dowry, while it was not a requirement, certainly was the norm in wealthy families. The girl's kyrios would finalize these arrangements when he "pledged" her; the girl herself need not be present; indeed, her consent was not required. Later, her kyrios would hand her on (ekdosis) and thereby transfer his legal authority (kyrieia) to the husband; the wedding ceremony (gamos) would follow. This is known as marriage by engye. The other form of marriage is by epidikasia, an official adjudication, by a magistrate or the court, of a girl to a husband who is her kinsman (it is called diadikasia if there is more than one suitor/claimant). Girls who were fatherless and brotherless were liable to such marriages; they were called epikleroi (plural; epikleros singular). The process by which an epikleros was awarded to a husband is briefly sketched below (IV: "Claiming an Estate").
Marriages by engye and epidikasia, then, would produce legitimate citizen children. There were further options for producing such children. If the marriage was childless, the husband might divorce his wife, a rather simple affair, and marry another Athenian woman who might then produce a child. Or, whether he was married or not, a childless man might adopt a child.
Adoption in modern Western societies is commonly motivated by the desire to love and nurture a child without parents. Adoption in Athens, however, served the purpose of providing an heir to a childless man, an heir not only to substance but also to important obligations: carrying on the life of an oikos (i.e., preventing its "extinction") and its ancestral rites. Adoption was restricted to men who had no legitimate sons of their own. Those adopted suffered no disabilities, although an adopted son (perhaps only a son adopted inter vivos ["among the living"]) was not himself permitted to adopt. There were three forms of adoption in Athens: inter vivos, testamentary, and posthumous.
1. Adoption inter vivos takes place during the lifetime of the adoptive father. The adoptee must be the child of Athenian citizens married to one another; bastard (illegitimate) children could not be adopted. The adoptive father would normally enroll an adopted son in his own phratry and deme at the appropriate times (see III). The adoptee would no longer belong officially to his natural father's oikos. For this reason, adoptees usually came from families with more than one son, so that at least one other son would be left to inherit the estate. Often the adoptee is related to his adoptive father. Thus, as part of the background presented by the speaker of 41, we learn that Polyeuctus had no sons but two daughters; he adopted his wife's brother and gave him his younger daughter to marry.
2. Testamentary adoption, as the name indicates, is effected by a will: a childless man adopts a son or (less frequently) a daughter in his will; the adoptee becomes the heir or heiress to his estate. The adoptee (or his guardian, if he were a minor) would have to present the will to the Archon before he entered the estate; once the Archon or the court had confirmed the will (IV) via an epidikasia (a hearing to adjudicate a claim), the adoptee would have to be registered in the phratry and deme of the deceased adoptive father. Again, the adoptee is often related to the adoptive father.
3. Posthumous adoption, as the name implies, takes place after the death of the adoptive father. The term is used not of testamentary adoptions (which would also take place "posthumously") but of adoptions in which the deceased man had not during his lifetime chosen the heir who was to be adopted after his death. Little is known of the procedure. There are only seven or eight attested cases in Athens; it has been argued that posthumous adoption was restricted to an intestate heir who had previously been awarded the estate of his future adoptive father via an epidikasia. Proximity of relationship to the deceased, as established by the court hearing, would then provide persuasive palliative to disgruntled and covetous kinsmen. The court's decision would not in itself constitute adoption but would allow one to take place. The adoption, overseen by interested kinsmen, may have consisted simply in the boy's introduction to the phratry of the deceased "adopter" (43.82); later, when he turned eighteen, he would be introduced to the deme of the deceased "adopter" (III). Once adopted and bearing a new identity (no longer the son of X but now the son of Y), the posthumously adopted son enters the estate as a legitimate son without undergoing a further adjudication. Posthumous adoptions are the subject of Orations 43 and 44.
Adoption was often deployed as an inheritance strategy. Adopting an heir by the first two methods was tantamount to choosing an heir. For the rich, testamentary adoption in particular afforded the adoptive father an opportunity to confer considerable material benefit on a favorite and to create eternally malign disappointment in a host of kinsmen who awaited the old uncle's death. Adoptions inter vivos and by testament might also be just a first step in a more purposeful plan: Step Two might require the adopted son to marry the adoptive father's daughter, who was an epikleros. Posthumous adoption, on the other hand, provided material gain for the winning heir without requiring the blessing (or even an acquaintance with) the adoptive father.
III. Paternal Acknowledgment and Introduction to Phratry and Deme
In the absence of birth records, the demes and phratries of Athens played an important role in guarding the membership of the citizen body. Membership in a deme was the gateway to participation in adult civic life, and membership in a phratry was in practice a guarantee of citizen birth, even if not in itself a requirement for that citizenship. Phratries in the fourth century were groups of people who seem to have regarded themselves as distantly related to each other (alleged "kin groups" in more ancient times); they celebrated the cult of Zeus Phratrios, Athena Phratria, Zeus Herkeios, and Apollo Patroös. The number of Attic phratries is not known; conjectures range vaguely from at least a hundred to several hundred; and two inscribed lists of individual phratries indicate twenty members in one and a hundred and twenty members in the other. A deme, on the other hand, was a territorial unit, for example, a hamlet or small village, perhaps demarcated as such since "time immemorial"; it was also a political entity since the epoch of Cleisthenes, the great reformer and founder of democracy who in 508/7 BC made the citizens living in a deme the members of that deme. He also made membership hereditary: in the fourth century a demesman of Acharnae might live in the deme of Rhamnous—but he would vote in the Assembly at Acharnae and attend cult celebrations there. There were 139 demes before the Hellenistic age. The full name of an Athenian citizen in formal documents (e.g., inscribed decrees) is given, for example, as "Demosthenes son of Demosthenes of [the deme] Paeania."
A father's acknowledgment of his son combines a number of civic and religious acts, none of which, in isolation, can be pointed to as the definitive act that confirms a child's identity as his father's son. His acknowledgment of his son's paternity was solemnized during the first days after birth and confirmed on numerous important occasions as the child grew to manhood. On the fifth day after birth, the amphidromia, a purification ritual, would be celebrated; at this time, a father signaled his acceptance of the infant into his family by carrying him around the household hearth. On the seventh (hebdome) or tenth day after birth (dekate), there would be another celebration, when the infant was given a name. The father's acknowledgment of paternity, witnessed by friends and relatives who attended the ceremonies, might later be used as evidence that the son was not a bastard in inheritance or citizenship disputes (e.g., Is. 3.6, 30, 33–34). Boeotus used witnesses to the tenth-day celebration as evidence of Mantias' paternity and conferral of name during the preliminaries to his lawsuit against Mantias in his attempt to win the recognition that would eventually lead to his entrance into phratry and deme (39.22 and 40.28).
Sons appear to have been introduced to their fathers' phratries on two occasions, once as infants or young children and later as teenagers. Local phratries performed three ceremonies on the third day (called Koureotis) of the festival known as the Apatouria. The first was the offering of the meion, a sacrifice that was apparently made by fathers to whom sons had been born during the previous year; the sacrifice may have been the occasion for the son's "first introduction" to the phratry. The second offering, the koureion, was another sacrifice presented by the father that may have coincided with the adolescent's formal (second?) entry and enrollment into the phratry (usually) at the age of sixteen. The procedure of enrollment for natural children was the same as for adopted children who would be enrolled in the phratries of their adoptive fathers. A rejected candidate might appeal an adverse vote to the phratry (43.82) or to the court (59.59–60).
Enrollment in the deme of one's father was the most important step for acquiring citizenship, which was reserved for men. Ath. Pol. 42.1–2 describes procedure and requirements (trans. Rhodes 1984) for citizenship:
Men belong to the citizen body if they are of citizen parentage on both sides, and they are registered as members of their demes at the age of eighteen. When they are registered, the deme members take a vote about them on oath, first to decide whether they have reached the age prescribed by the law (if they decide that they have not, the candidates return to the rank of the boys), and secondly to decide whether they are free men and born as prescribed by the laws. Then, if they reject a man as unfree, he appeals to the jury-court, and the deme members choose five of their own number as prosecutors: if he is found to have been unjustly registered, the state sells him as a slave; if he wins the case, the deme members are obliged to register him. After this the council scrutinizes those who have been registered, and if anyone is found to be below the age of eighteen it punishes the deme members who have registered him.
Presumably, witnesses to the boy's parentage would have to be present at his deme enrollment to testify to the three criteria. Attestation of age, status, and Athenian birth are interrelated in an important way: the assertion that a boy was born free eighteen years ago to a particular Athenian couple (XY) could, for example, be countered by a statement that X was living with Foreigner or Slave Z at that time, not Citizen Y.
IV. Claiming an Estate
An inheritance in Athens could be claimed before a magistrate in a number of ways; legitimate sons, however, could enter their fathers' estates without any formal steps at all.
1. Entry into an estate (embateusis). A legitimate son or grandson (whether natural or adopted in the lifetime of the deceased) could simply take possession of the estate: he "entered" upon the property (embateuein). If another party was already in possession, and barred the heir's entry and so evicted him, the heir could bring a penal lawsuit for ejectment (dike exoules). If the heir won the suit (by proving that he was indeed the heir and his entry had been barred), he was permitted by law to take forcible possession of the property; the defendant both lost the property and was required to pay a penalty to the Treasury.
Sons inherited equally—there was no right of primogeniture; daughters and grand-daughters in the presence of their brothers were excluded from inheriting. When brothers or other joint heirs entered an estate, there would often be a division of the property. Disputes might follow: so it happened in the division of Mantias' estate, when the half-brothers sought the return of their respective mothers' dowries (Speech 40); it happened again in the division of Polyeuctus' estate, when one son-in-law tried to collect the remainder of his wife's dowry, allegedly secured against the house (Speech 41). Direct heirs, even if they had the right to enter their estates, may have found themselves embroiled in lengthy and bitter disputes.
2a. Epidikasia and diadikasia. All persons (apart from legitimate sons and grandsons who wanted to claim an inheritance), including those claiming by will, had to apply to the Archon for a hearing. Their claims were read out at the principal monthly meeting of the Assembly of the People (Ath. Pol. 43. 4). It may have been shortly thereafter that a herald went about, asking if anyone wanted to dispute a particular claim or put down a deposit for the hearing; he may also have advertised the date for the preliminary hearing (anakrisis) at this time. Kinsmen would thus be informed and could act according to their rights and inclinations. If no one disputed the claim, the Archon or the court formally awarded the estate; the procedure was called epidikasia (an adjudication hearing for the award of an estate in which one claimant is involved).
The situation might quickly become complicated, however, when a wealthy and childless man died. Numerous kinsmen might then compete against one another, each claiming that he or she was nearest survivor to the deceased. They would appear before the Archon on the announced day; he would officiate over the preliminary hearing during which they would present their relationship to the deceased. One such claimant, for example, might produce a will according to which the deceased had adopted him posthumously as heir. Competing kinsmen might protest that it was a forgery or that it had been written by the deceased under circumstances that rendered it invalid in a court of law, such as lunacy, old age, the influence of drugs or illness, the persuasion of a woman (46.14). Kinsmen would present their claims in the hope of breaking the will. At the end of the meeting with the Archon, the number of claimants would have been determined as well as the number of voting urns (one or more claimants in the same kin circle, e.g., brothers of the deceased, would share the same urn: Is. 11.21–2) and the time allowed for pleading each claim. A deposit (called a parakatabole) of one-tenth the value of the estate may have been paid at this time, and certainly the day would be set for the hearing in chief. In court, each claimant (or claimant's advocate) would present his argument, and the jury's verdict would decide the case. The hearing was called a diadikasia (an adjudication hearing for the award of an estate in which numerous claimants are involved) and differed from other trials insofar as there might be any number of claimants, each of whom would be treated alike; in other words, there was no "plaintiff" and no "defendant." The judges cast their votes in the urns that had been set up for each claimant.
2b. Epidikasia and diadikasia of an epikleros. If the deceased had left a daughter and no sons, the procedure would be similar: her nearest kinsman (excluding a brother by the same mother) would appear before the Archon and claim her together with the estate; the claim would be read out at the principal monthly meeting of the Assembly at the same time as claims for estates (Ath. Pol. 43.4). The daughter was called an epikleros; the nearest English equivalent is "heiress," but the Athenian epikleros differs from her modern English counterpart in that the former does not inherit in her own right but serves as the instrument through which the estate will be passed to her sons as soon as they come of age. If only one kinsman made a claim before the Archon and the claim was legitimate, the Archon (or the court) formally awarded the estate together with the epikleros to him; the procedure was called epidikasia. A rich epikleros would often attract a number of suitor-claimants. The procedure (diadikasia) would follow the same route as in the case of multiple claimants for an estate, with a preliminary meeting with the Archon to establish relationships and the number of claims and voting urns. In court, claimants for an epikleros would have to prove proximity of relationship to the deceased and probably seniority as well. The girl who was awarded to her kinsman married him.
3. Diamartyria ("protestation") and a dike pseudomartyrion ("suit for false testimony"). A legitimate direct heir, whether a natural son (or grandson) or one adopted inter vivos, who enters the estate by embateusis (IV.1), might find his continued enjoyment of it threatened, for example, by a collateral kinsman. The latter might go to the Archon and claim the estate, saying that the heir was not a legitimate son or that the adoption was not legitimate, and then ask the court to decide the case (diadikasia, see 2a). The impugned heir has two choices at this point: he may submit to a hearing and the judges will then decide the validity of the claims made by him and his kinsman (as well as by any other kinsman who might come forward at this time), or he may make a formal protest (diamartyria) and furnish a witness who will maintain before the Archon that the estate is "not adjudicable" because a legitimate son of the deceased exists.
The second path (diamartyria) was the simpler, since the impugned heir need face only one claimant, but it was also perilous, since he must make a deposit (parakatabole) of one-tenth the value of the estate. If the collateral kinsman accepts the witness testimony as true, there is no trial, and the heir retains the estate (and gets his deposit back); but if, instead, the kinsman makes a formal objection, asserting that the diamartyria is false, then the kinsman brings a suit for false testimony (dike pseudomartyrion) against the heir's witness. Decision in this suit will precede the adjudication of the estate. If the witness is acquitted, the direct heir retains the estate. If the witness is convicted, then the direct heir is considered illegitimate and must withdraw. The winning kinsman then proceeds to an adjudication of the estate, possibly against other claimants—he will have gotten rid of one opponent (at least temporarily), but there may be others. Three speeches in the corpus of the Attic orators arise from diamartyriai (Is. 2, 3, and 6) and probably a fourth as well (Dem. 44).
4. A slightly different procedure would be followed if the court had already awarded the estate to a claimant. New claimants might come forward, as well as former claimants who had failed in their suits but now offered different grounds for their claims or objected that the original hearing had been wrongfully decided in their absence. To institute a new hearing, the claimant was required by law to issue a summons to all those who were occupying the estate as a result of the earlier hearing; they were now to appear before the Archon and pay a deposit of one-tenth the value of the estate (Dem. 43.16 and Ath. Pol. 56.6). The subsequent trial, like the earlier one, was called a diadikasia but differed from it by virtue of the summons that initiated it; consequently, the summoner had something of the role of a plaintiff. Anyone who puts in a claim for the new trial is said "to flee a counter-claim" (antigraphesthai). Such suits could be brought during the lifetime of the first heir or heirs or within five years of his or their deaths. This is the procedure that was used to reopen the dispute over Hagnias' estate in Oration 43 and over Comon's estate in Oration 48.
V. The Law of Intestate Succession
In the absence of legitimate sons and an uncontested will, the estate would pass to the nearest relative of the deceased in accordance with the procedures outlined above. Who was the nearest kinsman? The law providing the order of potential heirs when the deceased left no will is read to the court in 43.51 and is paraphrased or quoted in Isaeus 7.20–22 and 11.1–3, 11–13. As transmitted in these passages, the law has seemed to many scholars to be incomplete and corrupt rather than spurious. In 43.51, it begins with the daughters of the deceased. Daughters without brothers are in a special category since they must be passed on along with the estate as epikleroi to the nearest kinsman. Sons do not appear, either because the law has been abbreviated or because it was taken for granted that they could enter the estate without applying to the Archon. In the absence of daughters of the deceased, the following circles of kin are designated: (1) Homopatric (i.e., born of the same father) brothers of the deceased and their legitimate children (the latter are the nephews and nieces of the deceased); children of a deceased father divide his share equally; (2) homopatric sisters of the deceased and their legitimate children (nephews and nieces of the deceased); and (3) other relatives on the father's side, as far as children of cousins (anepsioi). The law read to the court at 43.51 goes on to say that males and the children born from males take precedence, if they are from the same direct ascendants, even if they are more remote in respect to kin circle. Furthermore, if there are no kin in these circles on the father's side of the deceased man's family, then succession passes to his mother's side, in the same order. Moreover, if there are no kin on either side belonging to these circles, then the nearest kinsman on the father's side inherits. Finally, illegitimate children, male and female, belong to none of these inheriting circles, and they may have no share in religious rites or civic privileges. This is the full extent of the obscure law cited at 43.51.
Some scholars think that the law specified additional kinsmen as follows: (4) Paternal uncles of the deceased and their children (first cousins of the deceased) and grandchildren (first cousins once removed); then, paternal aunts and their children and grandchildren. (5) Paternal great-uncles and their children (first cousins once removed of the deceased) and grandchildren (second cousins); then, paternal great-aunts and their children and grandchildren.(6) Homometric brothers (born of the same mother but different fathers) and children; then, homometric sisters and children. (7) Maternal uncles and their children (first cousins of the deceased) and grandchildren (first cousins once removed); then, maternal aunts and their children and grandchildren. (8) Maternal great-uncles and their children (first cousins once removed) and grandchildren (second cousins); then, maternal great-aunts and their children and grandchildren.
While some of its terms are vague, the principles of succession articulated in the law are clear and comprehensible. Inheritance is shared equally by each family (per stirpes rather than per capita) in the inheriting circle. Imagine that brothers (in the absence of sons and daughters of the imaginary deceased man) are to inherit and that of the original four brothers, one (P) has died without issue, another (Q) has also died but has left behind a daughter, and two brothers (R and S) are each alive with three children apiece. The inheritance will be divided into three equal shares for the three surviving families; one share will go to Q's daughter and a share apiece to R and S.
These "circles" of kin are collectively known as the anchisteia (which is sometimes equivalent in meaning to "the order of succession"). The anchisteia provides not only the order of potential heirs in intestate succession but also the basis for determining precedence for marriage to an epikleros. Archaic in origin, the anchisteia also provided the categories of men who could pardon involuntary killers of kin (Dracon's law on homicide) and may have demarcated those owing religious obligations to the dead from those who did not.
Texts and Commentaries
I have followed the Greek text of Dilts' Oxford Classical Text (OCT) of Demosthenes for Speeches 39–40 (vol. 3, Speeches 25–40, 2008) and Rennie's older edition of the OCT for Speeches 41–49 (vol. 3, 1931). Departures from the text are mentioned in the notes. Dilts' vol. 4 with the remaining speeches became available to me only in late January 2010; I have spot-checked difficult passages but have not compared the new edition with the older consistently throughout Speeches 41–49. In the translation, I have used square brackets to indicate words that I have added to assist the reader; most often these are transliterations of Greek terms. I have used angular brackets to indicate words that have been added by modern conjecture to fill out the Greek text where editors think there might be gaps.
Moreover, while it is conventional to put square brackets around "Dem." when citing a speech that modern authorities think was not composed by Demosthenes (e.g., [Dem.] 59), that practice has not been followed here; readers are referred to the introductions for comments on authorship.
The following editions of the Greek texts provide useful notes:
- Oration 39: C. Carey and R. A. Reid, Demosthenes: Selected Private Speeches (Cambridge, 1985).
- Orations 39–48: L. Gernet, Démosthène: Plaidoyers Civils II (Paris, 1957).
- Orations 49–56: L. Gernet, Démosthène: Plaidoyers Civils III (Paris, 1959).
- Orations 39, 40, 45, 46: F. A. Paley and J. E. Sandys, Select Private Orations of Demosthenes, Parts 1 and 2 (3rd edition, revised, Cambridge, 1896–1898).
W. E. Thompson provides a useful commentary on [Demosthenes] 43 and Isaeus 11 in De Hagniae Hereditate (Leiden 1976), but he does not supply a Greek text. Useful notes are also found in the English translations of C. R. Kennedy, The Orations of Demosthenes, vols. 4 and 5 (London 1897).