Against Aristocrates

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.

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.

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.

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.

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.

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.

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.

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 kill[*](i.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.

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.

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.

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.

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.

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.

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.—

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.

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.

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.

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;

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.

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.