Against Aristocrates

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.

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?

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.[*](These five courts sat respectively on the Areopagus; at the Palladium or temple of Pallas; at the Delphinium or temple of Apollo Delphinius; in Phreatto, a part of the Peiraeus by the shore; and in the Prytaneum or city-hall of Athens.)

—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.

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.

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.

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;

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.

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.

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.

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?

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.

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.

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.

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.

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.

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;

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.

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.

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.