Against Aristocrates
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Original / primary: Perseus Eng2
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Men of Athens, I beg that none of you will imagine that I have come here to arraign the defendant Aristocrates from any motive of private malice, or that I am thrusting myself so eagerly into a quarrel because I have detected some small and trivial blunder, but if my judgement and my views are at all right, the purpose of all my exertions in this case is that you may hold the Chersonese securely, and may not for the second time be cheated out of the possession of that country.
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If, then, it is your desire to learn the truth about this business, and to give a righteous and legitimate verdict on the indictment, you must not confine your attention to the mere phrasing of the decree, but also take into consideration its probable consequences. Had it been possible for you, at a first hearing, to discover the trick that had been played, you would not, perhaps, have been deceived at the outset;
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but, inasmuch as one of our grievances is that certain persons make speeches and move resolutions designed to avert your suspicions and put you off your guard, you must not be greatly astonished if we convince you that this decree also is so worded that, while apparently offering some personal protection to Charidemus, it really robs our city of an honest and effective safeguard for the Chersonese.
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You will be well advised, men of Athens, to grant me your attention, and give a favorable hearing to what I have to say. I am not one of the orators who worry you; I am not one of the politicians who enjoy your confidence; yet I undertake to convince you of the importance of this transaction; and therefore, if you will cooperate with me to the best of your power and listen to me with goodwill, you will avert this peril, and at the same time you will overcome the reluctance of any of us plain citizens who may believe himself able to do the State a good turn. And he will so believe, if only he is satisfied that it is not difficult to get a hearing in this court;
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though at present many of us,—inexpert speakers, perhaps, and yet better men than the experts—so dread this ordeal that they never think even of examining any public question. You may be sure that I for one, as Heaven is my witness, would never have dared to lay this indictment, if I had not thought it entirely dishonorable that at this time, when I see people engaged in a project to the disadvantage of our commonwealth, I should hold my peace, and close my lips,—I who, on a former occasion, when I sailed for the Hellespont in command of a war-galley, spoke out and denounced certain men who, in my judgement, were doing you wrong.
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I am not ignorant that Charidemus is regarded by some as a benefactor of Athens. But if I can find ability to tell you what I mean, and what I know him to have done, I hope to prove that, so far from being our benefactor, he is particularly ill-disposed to us, and that exactly the wrong conception has been formed of his character.
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If, men of Athens, the most serious offence committed by Aristocrates had been that in his decree he was so solicitous for the safety of such a man as I undertake to prove Charidemus to be that he provided a special and illegal penalty, in case anything happened to him, I should have tried to deal with that point at once, for the purpose of proving that the man is very far from deserving the favour of this decree. There is, however, a much graver iniquity involved in the decree, of which you must first be informed, and against which you must take precaution.
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It is essential that at the outset I should explain to you the circumstances to which you owe the secure possession of the Chersonese, for in the light of that knowledge you will get a clear perception of the wrong that has been committed. The circumstances, men of Athens, are these. On the demise of Cotys three persons instead of one became kings of Thrace—Berisades, Amadocus, and Cersobleptes; and the natural result was that they competed with one another and that they all flattered you and courted your favour.
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Well, men of Athens, certain persons who wanted to put a stop to that state of affairs, to get rid of the other kings, and to put Cersobleptes in possession of an undivided monarchy, contrived to equip themselves with this provisional resolution. If one listened only to the wording, they were far from appearing to pursue any such purpose; and yet such was in fact their main object, as I will proceed to explain.
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On the death of Berisades, one of the three kings, Cersobleptes, in violation of a sworn treaty concluded with you, began to levy war upon the sons of Berisades and upon Amadocus; and it was at once foreseen that Athenodorus would come to the aid of the sons of Berisades, and Simon and Bianor to that of Amadocus, the former being related by marriage to Berisades and the two latter to Amadocus.
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Accordingly the persons I have mentioned began to consider by what means those commanders might be compelled to remain inactive, so that, the rival princes being friendless, Charidemus, who was striving to win the monarchy for Cersobleptes, might make himself master of the situation. The first plan was to get a decree enacted by you, making any man who should kill Charidemus liable to arrest; and the second was that Charidemus should receive from you a general’s commission.
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For neither Simon nor Bianor, both of whom had been admitted to your citizenship, and who were, apart from that, thoroughly well affected towards you, was likely to take the field against a general of yours while Athenodorus, an Athenian citizen by birthright, would never dream of doing so, nor would he incur the criminal charge set up by the decree, which would certainly be brought against those commanders, if anything happened to Charidemus. By these means, the kings being denuded of allies, and impunity provide for themselves, they hoped easily to drive them out and seize the monarchy.
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Of such intentions and of such artifices they are accused by the evidence of facts; for, at the moment when they began hostilities, Aristomachus of Alopece visited you as their ambassador, and in his oration before the assembly, not content with commending Cersobleptes and Charidemus and enlarging on their generous sentiments towards you,
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he declared that Charidemus was the only man in the world who could recover Amphipolis for Athens, and advised you to appoint him as general. But this preliminary resolution had already been drafted and preconcerted by them, in order that, if you should be captivated by the promises and expectations which Aristomachus held out to you, it might be ratified there and then by the Assembly, and no impediment might remain.
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Yet what more ingenious and cunning device could these men have concocted to obtain the expulsion of the other kings, and the subjection of the whole realm to the monarch whom they preferred, than when they intimidated the commanders who would otherwise have supported the two rivals, and put them on their guard against that spiteful accusation which they might reasonably expect to encounter by the operation of this decree; and when on the other hand they conferred upon the man who was scheming to get the monarchy for one king, and was laying plans entirely opposed to your interests, such ample licence to proceed without fear?
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Nor is it only these considerations that prove that such was the purpose for which the resolution was moved: the decree itself supplies evidence of great weight. After drafting the words if any person put Charidemus to death, and omitting any proviso of what Charidemus might be doing, whether for or against your advantage, the mover forthwith added, he shall be liable to seizure and removal from the territory of our allies.
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Now no man who is an enemy of ours as well as of Charidemus will ever enter allied territory, whether he has put him to death or not, and therefore it is not against such men that this retribution has been directed. The man who will be alarmed by this decree, and will be on his guard against be coming our certain enemy, is one who is a friend of ours, and also an enemy of his, if he should attempt anything inimical to us. And that man is Athenodorus, or Simon, or Bianor, kings of Thrace, or any other man who may wish to lay you under obligation by restraining Charidemus when he is trying to act in opposition to you.
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Such, men of Athens, are the purposes for which the provisional resolution was moved, in the hope that it would be ratified by a deluded Assembly; and such the reasons why we, desiring to frustrate its ratification, have brought this present indictment. As I have undertaken to prove three propositions,—first that the decree is unconstitutional, secondly that it is injurious to the common weal, and thirdly that the person in whose favour it has been moved is unworthy of such privilege,—it is, perhaps, fair that I should allow you, who are to hear me, to choose what you wish to hear first, and second, and last.
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Consider what you prefer, that I may begin with that.—You wish me to deal first with the illegality? Very well; I will do so. There is a favour which I not only ask but claim from you all,—with justice, as I am inclined to think. I beg that none of you, men of Athens, taking a partisan view, because you have been deceived in Charidemus and look on him as a benefactor, will give an unfriendly hearing to my remarks on the point of law. Do not, for that reason, rob yourselves of the power to cast an honest vote, and me of the right to present my whole case as I think fit. You must listen to me in the manner following,—and observe how fairly I will put it.
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When I am discussing the point of law, you must disregard the person, and the character of the person, in whose favour the decree has been proposed, and attend to the question whether it is legal or illegal,—that and that alone. When I am bringing the man’s deeds home to him, and relating in what fashion you have been overreached by him, you must look only at the transactions,—do I relate them accurately or untruly?
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And when I inquire whether or not the enactment of this decree is conducive to the public good, dismiss everything else and watch my reasoning on that point,—is it sound or unsound? Listen to me in that manner, and you will get a better understanding of what you ought to know, by looking at one question at a time, instead of inquiring into all the issues at once, while I shall have no difficulty in explaining what I mean. On every topic my remarks shall be brief.
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Now take and read the actual statutes, that I may prove thereby the illegality of their proposal. One of the Statutes of the Areopagus Concerning Homicide The Council of the Areopagus shall take cognizance in cases of homicide, of intentional wounding, of arson, and of poisoning, if a man kill another by giving poison.
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Stop there. You have heard the statute, men of Athens, and you have also heard the decree. Let me tell you how you will more readily grasp the arguments on the question of illegality. Consider the status of the person in whose favour the decree has been proposed: is he an alien, a resident alien, or a citizen? If we call him a resident alien, we shall not be telling the truth; and if we call him an alien, we shall be doing him wrong, for it is only fair to him to admit the validity of that grace of the people by which he was made a citizen. It seems, then, that we must treat him as a citizen in our arguments.
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Now I beg you to observe how candidly and honestly I am going to treat the question; for I assign him to that class which entitles him to the greatest respect, though I do deny his right to acquire illegally privileges not enjoyed by us who are citizens by birthright,—the privileges, I mean, which the defendant has specified in this decree. In the statute it is provided that the Council shall take cognizance of homicide, intentional wounding, arson, and poisoning, if a man kills another by giving him poison.
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The legislator, while he presumes the killing, has nevertheless directed a judicial inquiry before specifying what is to be done to the culprit, and thereby has shown a just respect, men of Athens, for the religious feeling of the whole city. I say of the whole city, because it is impossible that all of you should know who the manslayer is. He thought it scandalous to give credit to such accusations, when made, without a trial; and he conceived that, inasmuch as the avenging of the sufferer is in our hands, we ought to be informed and satisfied by argument that the accused is guilty, for then conscience permits us to inflict punishment according to knowledge, but not before.
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Moreover he argued that before the trial is held such expressions as if a man kill, if a man rob a temple, if a man commit treason, and the like, are merely phrases of accusation: they become definitions of crime only after trial and conviction. To a formula of accusation he thought it proper to attach not punishment, but only trial; and therefore, when enacting that, if one man killed another, the Council should take cognizance, he did not lay down what should be done to the culprit if found guilty.
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So much for the legislator; but what of the author of the decree? If any man kill Charidemus, he says. So he defines the injury in the same phrase, if any man kill, as the legislator; but the sequel is not the same. He struck out submission to trial, and made the culprit liable to immediate seizure; he passed by the tribunal appointed by law, and handed over to the accusers, to be dealt with as they chose, a man untried, a man whose guilt is not yet proven.
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When they have got him, they are to be allowed to torture him, or maltreat him, or extort money from him. Yet the next ensuing statute directly and distinctly forbids such treatment even of men convicted and proved to be murderers. Read to the jury the statute that follows. Statute. It shall be lawful to killi.e. if they resist capture. murderers in our own territory, or to arrest them as directed on the first turning-table,Solon’s laws were inscribed on square tablets, attached (by hinges?) to an upright post. These posts stood in the Agora, accessible to all. but not to maltreat or amerce them, on penalty of a payment of twice the damage inflicted. The Archons, according to their several jurisdictions, shall bring cases into court; for any man who so desires and the court of Heliaea shall adjudicate.
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You have heard the law, men of Athens; and I beg you to examine it and observe how admirably and most righteously it is framed by the legislator. He uses the term murderers; but in the first place you see that by murderer he means a man found guilty by verdict; for no man comes under that designation until he has been convicted and found guilty.
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That is made clear both in the earlier statute and in this one; for in the former, after the words if any man kill, the legislator directs the Council to take cognizance, and here, after designating the man as the murderer, he has directed what is to be done to him. That is to say, when it is a question of accusation, he has ordered a trial, but when the culprit, being found guilty, is liable to this designation, he has specified the penalty. Therefore he should be speaking only of persons found guilty. Well, what does he direct? That it shall be lawful to kill them and to put them under arrest.
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Does he say that they are to be taken to the house of the prosecutor, or as he pleases? No, indeed. How are they to be arrested? As directed on the first turning-table, is the phrase; and you all know what that means. The judicial archons are there authorized to punish with death persons who have gone into exile on a charge of murder. Only last year you all saw the culprit who was arrested by them in the Assembly.
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It is to the archons, then, that the murderer is to be taken on arrest; and that differs from being taken to the house of the prosecutor in this respect, men of Athens,—that the captor who carries a man to the judges gives control of the malefactor to the laws, while the captor who takes him home gives such control to himself. In the former case punishment is suffered as the law enjoins; in the latter, as the captor pleases; and of course it makes a vast difference whether the retribution is controlled by the law or by a private enemy.
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Not to maltreat or amerce, says the statute. What does that mean? Every one, I am sure, understands that not to maltreat means that there is to be no scourging, no binding nor anything like that, and that not to amerce means not to extort blood-money, for the ancients called fining amercement.
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Note that in this manner the law lays down not only how the murderer or convict is to be punished, but also where, for it specifies the country of the person injured, and it directly prescribes that the penalty is to be inflicted in that way and in no other, in that place and in no other. Yet the author of the decree is far indeed from making this distinction,—his proposals are exactly contrary. After the words, if anyone shall kill Charidemus, he adds, he shall be liable to seizure everywhere.—
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What do you mean, sir? The laws do not allow even convicted criminals to be arrested elsewhere than in our own country, and do you propose that a man shall be liable to seizure without trial in any allied territory? And when the laws forbid seizure even in our own territory, do you permit seizure? Indeed, in making a man liable to seizure you have permitted everything that the law has forbidden,—extortion of blood-money, maltreatment and misusage of a living man, private custody and private execution.
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How could a man be convicted of a more clearly unconstitutional proposal, or of drafting a resolution more outrageously than in this fashion? You had two phrases at your disposal: if any man kill, directed against a person under accusation, and if any man be a murderer, directed against a culprit found guilty; yet in your description you adopted the expression that applies to a man accused, while you propose for untried culprits a penalty which the law does not permit even after conviction. You have eliminated the intermediate process, for between accusation and conviction comes a trial.—There is not a word about trial in the decree proposed by the defendant.
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Read the statutes that come next in order. Statute If any man shall kill a murderer, or shall cause him to be killed, so long as the murderer absents himself from the frontier-market, the games, and the Amphictyonic sacrifices, he shall be liable to the same penalty as if he killed an Athenian citizen;and the Criminal Court shall adjudicate. You must be informed, men of Athens, of the intention with which the legislator enacted this statute. You will find that all his provisions were cautious and agreeable to the spirit of the law.
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If any man, he says, shall kill a murderer, or shall cause him to be killed, so long as he absents himself from the frontier-market, the games, and the Amphictyonic sacrifices, he shall be liable to the same penalty as if he killed an Athenian citizen; and the Criminal Court shall adjudicate. What does this mean? In his opinion it was just that, if a man who had gone into exile, when convicted on a charge of murder, should make good his flight and escape, he should be excluded from the country of the murdered man; but that it was not righteous to put him to death anywhere and everywhere. His view was that, if we put to death people who have gone into exile elsewhere, others will put to death people who have come into exile here;
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and that, in that event, the only chance of salvation left for all those who are unfortunate will be destroyed, that is to say, the power of migrating from the country of those whom they have injured to a country where no one has been wronged by them, and there dwelling in security. To avert that misfortune, and to prevent an endless succession of retributions, he wrote: if any man kill a murderer, so long as he absents himself from the frontier-market,—meaning thereby the confines of the man’s own country. It was there, I suppose, that in old times borderers of our own and neighboring countries used to forgather; and so he speaks of a frontier-market.
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Or take the words, from Amphictyonic sacrifices. Why did he also exclude the murderer from them? He debars the offender from everything in which the deceased used to participate in his lifetime; first from his own country and from all things therein, whether permitted or sacred, assigning the frontier-market as the boundary from which he declares him excluded; and secondly from the observances at Amphictyonic assemblies, because the deceased, if a Hellene, also took part therein. And from the games,—why from the games? Because the athletic contests of Hellas are open to all men,—the sufferer was concerned in them because everybody was concerned in them; therefore the murderer must absent himself.
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Accordingly the law excludes the murderer from all these places; but if anyone puts him to death elsewhere, outside the places specified, the same retribution is provided as when an Athenian is slain. He did not describe the fugitive by the name of the city, for in that name he has no part, but by that of the act for which he is chargeable. Accordingly he says: if any man kill the murderer; and afterwards, when he prescribed the places from which the man is debarred, he introduces the name of the City for the lawful assignment of punishment: he shall be liable to the same penalty as if he killed an Athenian. Gentlemen, that phrase is very different from the wording of the decree before us.
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Yet is it not scandalous to propose the surrender of men whom the law has permitted to go into exile and to live in security, provided they absent themselves from the places I have mentioned, and to rob them of that benefit of mercy which the unfortunate may justly claim from those who are unconcerned in their crimes, although, in our ignorance of the future destiny of every man, it is uncertain for which of us that benefit is in store? In this case, if the man who slays Charidemus (supposing the thing really to happen) is slain in his turn by men who capture him as an outcast, after he has gone into exile, and while he absents himself from the places specified in the law, they will be liable to a charge of bloodguiltiness,—and so will you, sir.
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For it is written: if any man shall cause to be killed, and you will have caused, because it is you who have granted the licence implied in your decree. Therefore if, when the event has happened, we let you and your friends go free, we shall be living in the society of the unholy, and on the other hand, if we prosecute, we shall be constrained to act in opposition to our own resolution.—Gentlemen, is it a trifling or a casual reason that you have for annulling this decree?
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Read the next statute. Statute If any man outside the frontier pursue or violently seize the person of any homicide who has quitted the country, and whose goods are not confiscate, he shall incur the same penalty as if he so acted within our own territory. Here is another law, men of Athens, humanely and excellently enacted; and this law the defendant shall in like manner be proved to have transgressed.
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If any man, it begins, and then, any homicide who has quitted the country and whose goods are not confiscate, meaning any man who has migrated by reason of involuntary manslaughter. That is quite clear, because it speaks of those who have quitted the country, not of those who have gone into exile, and because it specifies persons whose goods are not confiscate, for the property of willful murderers is forfeited to the State. The legislator, I say, is speaking of involuntary offenders. To what purport?
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If they are pursued or violently seized, he says, outside the frontier. What is the significance of outside the frontier? For all homicides alike the frontier implies exclusion from the country of the person slain. From that country he permits them to be pursued and seized; but outside of it he permits neither seizure nor pursuit. For anyone who contravenes this rule he orders the same punishment as if he had done the man wrong at home, in the words, shall incur the same penalty as if he had so acted at home.
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Now suppose the defendant Aristocrates were asked,—you must not think it a silly question—first if he knows whether Charidemus will be killed by someone, or will die in some other way. He would reply, I take it, that he does not know. However, we will presume that somebody will kill him. Next question: will the man who is to do it be a voluntary or an involuntary agent, an alien or a citizen,—do you know, Aristocrates? You cannot say that you do know.
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Then of course you ought to have supplied these particulars, and written, if any man, whether alien or citizen, shall kill, with or without intention, rightfully or wrongfully, in order that any man soever, by whom the deed should have been done, might have received his deserts according to law; but assuredly, after merely naming an accusation, you ought not to have added, he shall be liable to seizure. What boundary have you left in this clause?
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Yet the law distinctly provides that beyond the frontier a man shall not be pursued, whereas you permit him to be seized anywhere. Beyond the frontier the law forbids not only pursuit but also seizure; and yet according to your decree anyone who chooses will take as an outcast and forcibly seize a man who has slain without intention, and carry him by violence into the country of the slain man. Are you not treating human conduct indiscriminately, and ignoring the motives according to which a given act is either virtuous or immoral?—
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Observe, gentlemen, that this is a universal distinction: it does not apply only to questions of homicide. If a man strike another, giving the first blow, says the law. The implication is that he is not guilty, if the blow was defensive. If a man revile another,—with false hoods, the law adds, implying that, if he speaks the truth, he is justified. If a man slay another with malice aforethought,—indicating that it is not the same thing if he does it unintentionally. If a man injures another with intention, wrongfully. Everywhere we shall find that it is the motive that fixes the character of the act. But not with you: you say, without qualification, if any man slay Charidemus, he shall be seized, though he do it unwittingly, or righteously, or in self-defence, or for a purpose permitted by law, or in any way whatsoever.
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Read the statute that comes next. Statute No man shall be liable to proceedings for murder because he lays information against exiles, if any such exile return to a prohibited place. This statute, men of Athens, like all the other excerpts from the law of homicide which I have cited for comparison, is a statute of Draco; and you must pay attention to his meaning. No man is to be liable to prosecution for murder for laying information against manslayers who return from exile illegally. Herein he exhibits two principles of justice, both of which have been transgressed by the defendant in his decree. In the first place, though he allows information to be laid against the homicide, he does not allow him to be seized and carried off; and secondly, he allows it only if an exile returns, not to any place, but to a prohibited place.
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Now the prohibited place is the city from which he has gone into exile. That the law makes very clear indeed when it says, if any man return,—a word that cannot be used in relation to any other city except that from which he has fled; for of course a man cannot return from exile to a place from which he was never expelled. What is allowed by the statute is an information, and that only in case of return to a prohibited place; whereas Aristocrates has proposed that a man shall be liable to seizure even in places where the law does not forbid him to take refuge.
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Read another statute. Statute If a man kill another unintentionally in an athletic contest, or overcoming him in a fight on the highway, or unwittingly in battle, or in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for procreation of legitimate children, he shall not go into exile as a manslayer on that account. Many statutes have been violated, men of Athens, in the drafting of this decree, but none more gravely than that which has just been read. Though the law so clearly gives permission to slay, and states under what conditions, the defendant ignores all those conditions, and has drawn his penal clause without any suggestion as to the manner of the slaying.
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Yet mark how righteously and admirably these distinctions are severally defined by the lawgiver who defined them originally. If a man kill another in an athletic contest, he declared him to be not guilty, for this reason, that he had regard not to the event but to the intention of the agent. That intention is, not to kill his man, but to vanquish him unslain. If the other combatant was too weak to support the struggle for victory, he considered him responsible for his own fate, and therefore provided no retribution on his account.
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Again, if in battle unwittingly—the man who so slays is free of bloodguiltiness. Good: If I have destroyed a man supposing him to be one of the enemy, I deserve, not to stand trial, but to be forgiven. Or in intercourse with his wife, or mother, or sister, or daughter, or concubine kept for the procreation of legitimate children. He lets the man who slays one so treating any of these women go scot-free; and that acquittal, men of Athens, is the most righteous of all.
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Why? Because in the defence of those for whose sake we fight our enemies, to save them from indignity and licentiousness, he permitted us to slay even our friends, if they insult them and defile them in defiance of law. Men are not our friends and our foes by natural generation: they are made such by their own actions; and the law gives us freedom to chastise as enemies those whose acts are hostile. When there are so many conditions that justify the slaying of anyone else, it is monstrous that that man should be the only man in the world whom, even under those conditions, it is to be unlawful to slay.
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Let us suppose that a fate that has doubtless befallen others before now should befall him—that he should withdraw from Thrace and come and live somewhere in a civilized community; and that, though no longer enjoying the licence under which he now commits many illegalities, he should be driven by his habits and his lusts to attempt the sort of behavior I have mentioned, will not a man be obliged to allow himself to be insulted by Charidemus in silence? It will not be safe to put him to death, nor, by reason of this decree, to obtain the satisfaction provided by law.
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If anyone interrupts me with a question, And where, pray, are such things likely to happen? there is nothing to prevent me from asking, And who is likely to kill Charidemus? Well, we need not go into those questions; only, inasmuch as the decree now on trial refers, not to any past transaction, but to something of which nobody knows whether it will happen or not, let the uncertainty of the future be common ground to both sides; let us, as mankind are wont, adjust our expectations thereto, and consider the matter on the presumption that both the one contingency and the other may possibly happen.
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Moreover, if you annul the decree, should anything happen to Charidemus, the legitimate means of avenging him are still there. On the other hand, if you let it stand, and if before he dies he maltreats any man, the man whom he insults has been defrauded of his legal remedy. Therefore on every ground the decree is contrary to law, and ought to be annulled.
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Read the next statute. Statute If any man while violently and illegally seizing another shall be slain straightway in self-defence, there shall be no penalty for his death. Here are other conditions of lawful homicide. If any man, while violently and illegally seizing another, shall be straightway slain in self-defence, the legislator ordains that there shall be no penalty for his death. I beg you to observe the wisdom of this law. By adding the word straightway after indicating the conditions of lawful homicide, the legislator has excluded any long premeditation of injury and by the expression, in self-defence, he makes it clear that he is giving indulgence to the actual sufferer, and to no other man. Thus the law permits homicide in immediate self-defence; but Aristocrates has made no such exception. He says, without qualification, if anyone ever kills,—that is, even if he kill righteously, or as the laws permit.
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I shall be told that this is a quibble of ours; who will ever be violently and illegally seized by Charidemus? Everybody. Surely you are aware that any man who has troops at command lays hands on whomsoever he thinks he can overpower, demanding ransom. Heaven and Earth! Is it not monstrous, is it not manifestly contrary to law,—I do not mean merely to the statute law but to the unwritten law of our common humanity,—that I should not be permitted to defend myself against one who violently seizes my goods as though I were an enemy? And that will be so, if the slaying of Charidemus is forbidden even on those terms,—if even though he be iniquitously plundering another man’s property, his slayer is to be liable to seizure, though the statute ordains that he who takes life under such conditions shall have impunity.
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Read the next statute. Statute Whosoever, whether magistrate or private citizen, shall cause this ordinance to be frustrated, or shall alter the same, shall be disfranchised with his children and his property. You have heard the statute, men of Athens, declaring in plain terms that whosoever, whether magistrate or private citizen, shall cause this ordinance to be frustrated or shall alter the same, shall be disfranchised with his children and his property. Do you then count this a trifling or worthless precaution taken by the author of the statute to secure its validity, and to save it from being either frustrated or altered? Yet the defendant Aristocrates, with very little regard for the lawgiver, is trying both to alter it and to frustrate it. For surely, to permit punishment outside the established tribunals and beyond the limits of the prohibited areas, or to rob people of the right of fair hearing, and make them outcasts—what is that but alteration? To draft a series of clauses, all of them exactly contradicting the provisions of the statute-book—what is that but frustration?
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Besides the laws cited, he has violated many other statutes, which we have not put on the schedule because they are so numerous. I offer a summary statement. Take the laws which deal with courts of homicide, and which order the contending parties to summon one another, or to tender evidence, or to take their oaths, or which give them any other direction; he has violated every one of them; he has drafted this decree in contravention of them all. What other account can one give, when there is no summons, no evidence by witnesses of the fact, no oath-taking,—when the penalty follows on the heels of the accusation, and that a penalty forbidden by the laws? Yet all the proceedings I have named are in use, as ordered by statute, at five different tribunals.
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—Yes, but,—someone will say,—those tribunals are worthless and unfairly constituted, whereas the proposals of the defendant are righteous and admirable.—I deny it. I say that of all the proposals ever laid before you I know of none more outrageous than this decree, and that of all the tribunals to be found in the whole world there are none that can be shown to be more venerable or more righteous than ours. I desire to speak briefly of certain truths, the relation of which reflects credit and honor upon the city, and which you will be gratified to hear. I will begin with a statement which you will find especially instructive, first referring to the free gift which has already been conferred upon Charidemus.
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It was we, men of Athens, who made Charidemus a citizen, and by that gift bestowed upon him a share in our civil and religious observances, in our legal rights, and in everything in which we ourselves participate. There are many institutions of ours the like of which are not to be found elsewhere, but among them one especially peculiar to ourselves and venerable,—I mean the Court of Areopagus. Concerning that Court I could relate a greater number of noble stories, in part traditional and legendary, in part certified by our own personal testimony, than could be told of any other tribunal. It is worth your while to listen to one or two of them by way of illustration.
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First, then, in ancient times, as we are told by tradition, in this court alone the gods condescended both to render and to demand satisfaction for homicide, and to sit in judgement upon contending litigants,—Poseidon, according to the legend, deigning to demand justice from Ares on behalf of his son Halirrothius, and the twelve gods to adjudicate between the Eumenides and Orestes. These are ancient stories; let us pass to a later date. This is the only tribunal which no despot, no oligarchy, no democracy, has ever dared to deprive of its jurisdiction in cases of murder, all men agreeing that in such cases no jurisprudence of their own devising could be more effective than that which has been devised in this court. In addition to these great merits, here, and here alone, no convicted defendant and no defeated prosecutor has ever made good any complaint against the justice of the verdict given.
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And so, in defiance of this safeguard of justice, and of the lawful penalties that it awards, the author of this decree has offered to Charidemus a free licence to do what he likes as long as he lives, and to his friends the right of vindictive prosecution when he is dead. For look at it in this light. You are all of course aware that in the Areopagus, where the law both permits and enjoins the trial of homicide, first, every man who brings accusation of such a crime must make oath by invoking destruction upon himself, his kindred, and his household;
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secondly, that he must not treat this oath as an ordinary oath, but as one which no man swears for any other purpose; for he stands over the entrails of a boar, a ram, and a bull, and they must have been slaughtered by the necessary officers and on the days appointed, so that in respect both of the time and of the functionaries every requirement of solemnity has been satisfied. Even then the person who has sworn this tremendous oath does not gain immediate credence; and if any falsehood is brought home to him, he will carry away with him to his children and his kindred the stain of perjury,—but gain nothing.
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If, on the other hand, he is believed to be laying a just charge, and if he proves the accused guilty of murder, even then he has no power over the convicted criminal; only the laws and the appointed officers have power over the man for punishment. The prosecutor is permitted to see him suffering the penalty awarded by law, and that is all. Such are the prosecutor’s rights. As for the defendant, the rules for his oath are the same, but he is free to withdraw after making his first speech, and neither the prosecutor, nor the judges, nor any other man, has authority to stop him.
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Now why is that so, men of Athens? Because they who originally ordained these customs, whoever they were, heroes or gods, did not treat evil fortune with severity, but humanely alleviated its calamities, so far as they honestly could. All those regulations, so nobly and equitably conceived, the author of the decree now in question has manifestly infringed, for not a single shred of them is to be found in his decree.—That is my first point: here is one tribunal whose written laws and unwritten usages he has contravened in drafting his decree.
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Secondly, there is another tribunal, the court by the Palladium, for the trial of involuntary homicide; and it shall be shown that he nullifies that tribunal also, and transgresses the laws there observed. Here also the order is first the oath-taking, secondly the pleadings, and thirdly the decision of the court; and not one of these processes is found in the defendant’s decree. If the culprit be convicted, and found to have committed the act, neither the prosecutor nor any other person has any authority over him, but only the law. And what does the law enjoin?
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That the man who is convicted of involuntary homicide shall, on certain appointed days, leave the country by a prescribed route, and remain in exile until he is reconciled to one of the relatives of the deceased. Then the law permits him to return, not casually, but in a certain manner; it instructs him to make sacrifice and to purify himself, and gives other directions for his conduct. In all these provisions, men of Athens, the law is right.
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It is just to allot a lesser penalty for involuntary than for willful homicide; it is quite right, before ordering a man to go into exile, to provide for his safe departure; and the provisions for the reinstatement of the returning exile, for his purification by customary rites, and so forth, are excellent. Well, everyone of these ordinances, so righteously enacted by the original legislators, has been transgressed by the defendant in drafting his decree. So we have now two tribunals, of great antiquity and high character, and usages handed down from time immemorial, which he has insolently overridden.
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Besides these two tribunals there is also a third, whose usages are still more sacred and awe-inspiring, for cases in which a man admits the act of slaying, but pleads that he slew lawfully. That is the court held at the Delphinium. It appears to me, gentlemen of the jury, that the first inquiry made by those who originally defined the rules of jurisprudence in these matters was, whether we are to regard no act of homicide as righteous, or whether any kind of homicide is to be accounted righteous; and that, arguing that Orestes, having slain his own mother, confessing the fact, and finding gods to adjudge his case, was acquitted, they formed the opinion that there is such thing as justifiable homicide,—for gods could not have given an unjust verdict. Having formed this opinion, they immediately set down in writing an exact definition of the conditions under which homicide is lawful.
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The defendant, however, admitted no exception; he simply makes an outcast of any man who kills Charidemus, even though he kill him justly or as the laws permit. And yet to every act and to every word one of two epithets is applicable: it is either just or unjust. To no act and to no word can both these epithets be applied at the same time, for how can the same act at the same time be both just and not just? Every act is brought to the test as having the one or the other of these qualities; if it be found to have the quality of injustice, it is adjudged to be wicked, if of justice, to be good and honest.—But you, sir, used neither qualification when you wrote the words, if any man kill. You named the mere accusation, without any definition, and then immediately added, let him be liable to seizure. Thereby you have evidently ignored this tribunal and its usages as well as the other two.
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There is also a fourth tribunal, that at the Prytaneum. Its function is that, if a man is struck by a stone, or a piece of wood or iron, or anything of that sort, falling upon him, and if someone, without knowing who threw it, knows and possesses the implement of homicide, he takes proceedings against these implements in that court. Well, if it is not righteous to deny a trial even to a lifeless and senseless thing, the object of so grave an accusation, assuredly it is impious and outrageous that a man who may possibly be not guilty, and who in any case,—and I will assume him to be guilty,—is a human being endowed by fortune with the same nature as ourselves, should be made an outcast on such a charge without a hearing and without a verdict.
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Then there is a fifth tribunal which he has overruled,—and I beg you to take note of its character; I mean the court held in the precinct of Phreatto. In that court, men of Athens, the law orders every man stand his trial who, having gone into exile on a charge of unintentional homicide, and being still unreconciled to the persons who procured his banishment, incurs a further charge of willful murder. The author of the several rules of court did not let such a man alone, on the ground that he was unable to return to Athens, nor did he, because the man had already committed a like offence, treat the similarity of the accusation as proof positive against him;
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he found a way of satisfying the requirements of religion without depriving the culprit of a fair hearing and a trial. How did he manage it? He conveyed the judges who were to sit to a place to which the accused was able to repair, appointing a place within the country but on the sea-coast, known as the precinct of Phreatto. The culprit approaches the shore in a vessel, and makes his speech without landing, while the judges listen to him and give judgement on shore. If found guilty, the man suffers the penalty of willful murder as he deserves; if acquitted, he goes his way scot-free in respect of that charge, but still subject to punishment for the earlier homicide.
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Now with what object have these regulations been made so carefully? The man who drew them up accounted it equally irreligious to let slip the guilty, and to cast out the innocent before trial. But if such great pains are taken in the case of persons already adjudged to be homicides, to ensure for them a hearing, a trial, and fair treatment in every respect upon any subsequent accusation, surely it is most outrageous to provide that a man who has not yet been found guilty, and of whom it is still undecided whether he committed the act or not, and whether the act was involuntary or willful, should be handed over to the mercy of his accusers.
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In addition to all these provisions for legal redress there is a sixth, which the defendant has equally defied in his decree. Suppose that a man is ignorant of all the processes I have mentioned, or that the proper time for taking such proceedings has elapsed, that for any other reasons he does not choose to prosecute by those methods; if he sees the homicide frequenting places of worship or the market, he may arrest him and take him to jail; but not, as you have permitted, to his own house or wherever he chooses. When under arrest he will suffer no injury in jail until after his trial; but, if he is found guilty, he will be punished with death. On the other hand, if the person who arrested him does not get a fifth part of the votes, he will be fined a thousand drachmas.
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The proposals of the defendant are quite different: the accuser is to prosecute without risk, the culprit to be given up incontinently and without trial; and if any person, or indeed any entire city, shall intervene to prevent the destruction of all those usages which I have described and the overthrow of all the tribunals I have mentioned; tribunals introduced by the gods and frequented by mankind from that day to this,—and to rescue the victims of outrage and lawless violence, he proposes that any such person shall be banned; for him also he allows no hearing and no trial, but punishes him instantly and without trial. Could any decree be more monstrous and more unconstitutional?
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Have we any statute left? . . . Let me see it. . . . . Yes, that is the one; read it. The Statute If any man die a violent death, his kinsmen may take and hold hostages in respect of such death, until they either submit to trial for bloodguiltiness, or surrender the actual manslayers. This right is limited to three hostages and no more. We have many well-conceived laws, men of Athens; but I am inclined to think that this statute is as wise and just as any of them. Observe the spirit of equity and the remarkable humanity with which it is drawn up.
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If any man die a violent death, says the legislator. First, by adding the epithet violent, he has given an indication by which we understand his meaning to be, if a man die wrongfully. His kinsmen may take and hold hostages in respect of such death, until they either submit to trial for bloodguiltiness, or surrender the actual manslayers. You will note what an admirable provision this is. He requires the hostages, in the first instance, to stand trial; and then if they refuse, he enjoins them to give up the murderers; but, if they decline both these duties, he adds that the right to hold hostages is limited to three and no more. The whole of this statute is defied in the wording of the decree.
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In the first place, when writing the words, if any man shall kill, he did not add wrongfully, or violently, or any qualification at all. Secondly he proposes that the culprit shall be liable to seizure instantly and before any claim of redress has been made. Furthermore, while the statute ordains that, if the persons in whose house the death took place will neither submit to trial nor give up the perpetrators, as many as three may be detained as hostages,
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Aristocrates dismisses those persons scot-free, and takes no account of them whatever, but proposes to put under a ban those who, in obedience to that common law of mankind which enjoins hospitality to a fugitive, have harbored the culprit, who, as I will assume, has already gone into exile, if they refuse to surrender their suppliant. Thus, by omitting to specify the mode of the homicide, by not providing for a trial, by omitting the claim of redress, by permitting arrest in any place whatsoever, by punishing those who harbor the fugitive, and by not punishing those in whose house the death took place,—in every respect I say that his proposal is in manifest contravention of this statute also.
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Read the next one. And it shall not be lawful to propose a statute directed against an individual, unless the same apply to all Athenians. The statute just read is not, like the others, taken from the Laws of Homicide, but it is just as good—as good as ever law was. The man who introduced it was of opinion that, as every citizen has an equal share in civil rights, so everybody should have an equal share in the laws; and therefore he moved that it should not be lawful to propose a law affecting any individual, unless the same applied to all Athenians. Now seeing that it is agreed that the drafting of decrees must conform to the law, a man who draws a decree for the special benefit of Charidemus, such as is not applicable to all the rest of you, must evidently be making a proposal in defiance of this statute also; of course what it is unlawful to put into a statute cannot legitimately be put into a decree.
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Read the next statute,—or is that all of them? The Statute No decree either of the Council or of the Assembly shall have superior authority to a statute. Put it down.—I take it, gentlemen, that a very short and easy argument will serve me to prove that this statute has been violated in the drafting of the decree. When there are so many statutes, and when a man makes a motion that contravenes every one of them, and incorporates a private transaction in a decree, how can anyone deny that he is claiming for his decree authority superior to that of a statute?
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Now I wish to cite for your information one or two decrees drawn in favour of genuine benefactors of the commonwealth, to satisfy you that it is easy to frame such things without injustice, when they are drawn for the express purpose of doing honor to a man, and of admitting him to a share of our own privileges, and when, under the pretence of doing so, there is no malicious and fraudulent intention.—Read these decrees.—To save you a long hearing, the clauses corresponding to that for which I am prosecuting the defendant have been extracted from the several decrees.(The Clerk reads excerpts from sundry Decrees.)
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You see, men of Athens, that they have all drawn them in the same fashion. For instance: There shall be the same redress for him as if the person slain were an Athenian. Here, without tampering with your existing laws respecting such offences, they enhance the dignity of those laws by making it an act of grace to allow a share in them to others. Not so Aristocrates: he does his very best to drag the laws through the mire; anyhow, he tried to compose something of his own, as though they were worth nothing; and he makes light even of that act of grace which you bestowed your citizenship upon Charidemus. For when he assumes that you still owe the man a debt of gratitude, and has proposed that you should protect him into the bargain, so that he may do just what he likes with impunity, does not such conduct merit my description?
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I am well aware, men of Athens, that, although Aristocrates will be quite unable to disprove the charge of framing his decree in open defiance of the laws, he will make an attempt to shuffle away the most serious part of the accusation,—namely, that from beginning to end of his decree he does not order any trial of a very grave indictment. On that point I do not think I need say much; but I will prove clearly from the actual phrasing of the decree that he himself does not suppose that the man accused will get any trial at all.
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The words are: If any man kill Charidemus, he shall be liable to seizure; and if any person or any city rescue him, they shall be put under ban,—not merely in case they refuse to give up for trial the man they have rescued, but absolutely and without more ado. And yet if he were permitting instead of disallowing a trial, he would have made the penal clause against the rescuers conditional upon their not giving up for trial the person rescued.
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I dare say that he will use the following argument, and that he will try very hard to mislead you on this point. The decree, he will urge, is invalid because it is merely a provisional resolution,
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and the law provides that resolutions of the Council shall be in force for one year only; therefore, if you acquit him today, the commonwealth can take no harm in respect of his decree.
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I think your rejoinder to that argument should be that the defendant’s purpose in drafting the decree was, not that it should be inoperative and have no disagreeable results,—for it was open to him not to draft it at all, if he had wished to consult the best advantage of the commonwealth;—but that you might be misled and certain people might be enabled to carry through projects opposed to your interests. That the decree has been challenged, that its operation has been delayed, and that it has now become invalid, you owe to us; and it is preposterous that the very reasons that ought to make you grateful to us should be available as reasons for acquitting our opponents.
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Moreover the question is not so simple as some suppose. If there were no other man likely to propose decrees like his without regard to your interests, the matter might, perhaps, be a simple one. But in fact there are many such; and that is why it is not right that you should refuse to annul this decree. If it is pronounced flawless, who will not move decrees in future without misgiving? Who will refuse to put them to the vote? Who will impeach them? What you have to take into account is, not that this decree has become invalid by lapse of time, but that, if you now give judgement for the defendant, by that verdict you will be offering impunity to every man who may hereafter wish to do you a mischief.
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It also occurs to my mind, men of Athens, that Aristocrates, having no straightforward or honest defence, nor indeed any defence at all, to offer, will resort to such fallacious arguments as this,—that many similar decrees have been made before now in favour of many persons. That is no proof, gentlemen, of the legality of his own proposal. There are many pretences by which you have often been misled.
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For instance, suppose that one of those decrees which have in fact been disallowed had never been impeached in this Court. It would certainly have been operative; nevertheless it would have been moved contrary to law. Or suppose that a decree, being impeached, was pronounced flawless, because the prosecutors, either collusively or through incompetence, had failed to make good their case: that failure does not make it legal. Then the jurors do not give conscientious verdicts? Yes, they do; I will explain how. They are sworn to decide to the best of an honest judgement; but the view that commends itself to their judgement is guided by the speeches to which they listen, and, inasmuch as they cast their votes in accordance with that view, they are true to their oath.
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Every man keeps his oath who does not, through spite or favour or other dishonest motive, vote against his better judgement. Suppose that he does not apprehend some point that is explained to him, he does not deserve to be punished for his lack of intelligence. The man who is amenable to the curse is the advocate who deceives and misleads the jury. That is why, at every meeting, the crier pronounces a commination, not upon those who have been misled, but upon whosoever makes a misleading speech to the Council, or to the Assembly, or to the Court.
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Do not listen to proof that the thing has happened, but only to proof that it ought to have happened. Do not let them tell you that those old decrees were upheld by other juries; ask them to satisfy you that their plea for this decree is fairer than ours. Failing that, I do not think that you ought to give greater weight to the delusions of others than to your own judgement.
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Moreover, I cannot but think that there is something uncommonly impudent in such a plea as that other people have before now got decrees of this sort.—If, sir, an illegal act has already been done, and you have imitated that act, that is no reason why you should be acquitted. On the contrary, it is an additional reason why you should be convicted. If one of them had been found guilty, you would never have moved our decree and similarly another will be deterred, if you are found guilty today.
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I say that I do not expect that Aristocrates will be able to deny that he has moved a decree in open violation of all the laws; but before now, men of Athens, I have seen a man contesting an indictment for illegal measures, who, though convicted by law, made an attempt to argue that his proposal had been to the public advantage, and insisted strongly on that point,—a simple-minded argument, surely, if it was not an impudent one.