Against Aristocrates

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?

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.

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.

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,

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.

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.

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?

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.)

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?

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.

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.

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,[*](An order of Council not valid until confirmed by the vote of the Assembly.) 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.

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.

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.

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.

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.

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.

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.

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.

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.