Against Aristocrates

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.

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.

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?

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.

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?

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.

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.

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?

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?—

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.