Delphi complete works of.., p.428
Delphi Complete Works of Demosthenes, page 428
[50] ὁρᾶτε γὰρ ὡς ἐπὶ πάντων, οὐκ ἐπὶ τῶν φονικῶν μόνον, οὕτω τοῦτ᾽ ἔχει. ‘ἄν τις τύπτῃ τινά’ φησὶν ‘ἄρχων χειρῶν ἀδίκων,’ ὡς, εἴ γ᾽ ἠμύνατο, οὐκ ἀδικεῖ. ‘ἄν τις κακῶς ἀγορεύῃ,’ ‘τὰ ψευδῆ’ προσέθηκεν, ὡς, εἴ γε τἀληθῆ, προσῆκον. ‘ἄν τις ἀποκτείνῃ,’ ‘ἐκ προνοίας,’ ὡς, εἴ γ᾽ ἄκων, οὐ ταὐτόν. ‘ἄν τις καταβλάψῃ τινά,’ ‘ἑκὼν ἀδίκως.’ πανταχοῦ τὴν πρόφασιν βεβαιοῦσαν τὸ πρᾶγμ᾽ εὑρήσομεν. ἀλλ᾽ οὐ σοί, ἀλλ᾽ ἁπλῶς, ‘ἄν τις ἀποκτείνῃ Χαρίδημον, ἀγέσθω,’ κἂν ἄκων, κἂν δικαίως, κἂν ἀμυνόμενος, κἂν ἐφ᾽ οἷς διδόασιν οἱ νόμοι, κἂν ὁπωσοῦν.
[50] 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.
[51] λέγε τὸν μετὰ ταῦτα νόμον.”Νόμος
φόνου δὲ δίκας μὴ εἶναι μηδαμοῦ κατὰ τῶν τοὺς φεύγοντας ἐνδεικνύντων, ἐάν τις κατίῃ ὅποι μὴ ἔξεστιν.”
ὁ μὲν νόμος ἐστὶν οὗτος Δράκοντος, ὦ ἄνδρες Ἀθηναῖοι, καὶ οἱ ἄλλοι δὲ ὅσους ἐκ τῶν φονικῶν νόμων παρεγραψάμην: δεῖ δ᾽ ἃ λέγει σκέψασθαι. ‘κατὰ τῶν ἐνδεικνύντων’ φησὶ ‘τοὺς κατιόντας ἀνδροφόνους ὅποι μὴ ἔξεστι δίκας φόνου μὴ εἶναι.’ ἐνταυθὶ δύο δηλοῖ δίκαια, ἃ παρ᾽ ἀμφότερ᾽ οὗτος εἴρηκεν τὸ ψήφισμα, ὅτι τ᾽ ἐνδεικνύναι δίδωσι τὸν ἀνδροφόνον καὶ οὐκ αὐτὸν ἀγώγιμον οἴχεσθαι λαβόντα, καὶ ὅτι, ἐὰν κατίῃ τις ὅποι μὴ ἔξεστι, καὶ αὐτὸ τοῦτο δίδωσιν, οὐχ ὅπου βούλεταί τις.
[51] Read the statute that comes next.”Law
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.
[52] οὐκ ἔξεστι δὲ ποῖ; ἐξ ἧς ἂν φεύγῃ τις πόλεως. ποῦ καὶ σφόδρα τοῦτο δηλοῖ; ‘ἐάν τις κατίῃ’ φησί. τοῦτο δ᾽ οὐκ ἔστ᾽ ἐπενεγκεῖν ἄλλῃ πόλει πλὴν ἣν ἂν φεύγῃ τις: ὅθεν γὰρ μηδ᾽ ἐξέπεσέν τις τὴν ἀρχήν, οὐκ ἔνι δήπου κατελθεῖν εἰς ταύτην. ὁ μὲν τοίνυν νόμος ἔνδειξιν δέδωκεν, καὶ ταύτην, ‘ἂν κατίῃ ὅποι μὴ ἔξεστιν:’ ὁ δὲ ‘ἀγώγιμος ἔστω’ γέγραφεν κἀντεῦθεν, ὅποι φεύγειν οὐδεὶς κωλύει νόμος.
[52] 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.
[53] λέγ᾽ ἄλλον νόμον.”Νόμος
ἐάν τις ἀποκτείνῃ ἐν ἄθλοις ἄκων, ἢ ἐν ὁδῷ καθελὼν ἢ ἐν πολέμῳ ἀγνοήσας, ἢ ἐπὶ δάμαρτι ἢ ἐπὶ μητρὶ ἢ ἐπ᾽ ἀδελφῇ ἢ ἐπὶ θυγατρί, ἢ ἐπὶ παλλακῇ ἣν ἂν ἐπ᾽ ἐλευθέροις παισὶν ἔχῃ, τούτων ἕνεκα μὴ φεύγειν κτείναντα.”
πολλῶν, ὦ ἄνδρες Ἀθηναῖοι, νόμων ὄντων, παρ᾽ οὓς εἴρηται τὸ ψήφισμα, παρ᾽ οὐδένα μᾶλλον ἢ παρὰ τοῦτον τὸν ἀνεγνωσμένον νῦν εἴρηται. διδόντος γὰρ τοῦ νόμου σαφῶς οὑτωσὶ καὶ λέγοντος ἐφ᾽ οἷς ἐξεῖναι κτεῖναι, οὗτος ἅπαντα παρεῖδε ταῦτα, καὶ γέγραφεν, οὐδὲν ὑπειπὼν πῶς, ἄν τις ἀποκτείνῃ, τὴν τιμωρίαν.
[53] Read another statute.”Law
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.
[54] καίτοι σκέψασθ᾽ ὡς ὁσίως καὶ καλῶς ἕκαστα διεῖλεν ὁ ταῦτ᾽ ἐξ ἀρχῆς διελών. ἄν τις ἐν ἄθλοις ἀποκτείνῃ τινά, τοῦτον ὥρισεν οὐκ ἀδικεῖν. διὰ τί; οὐ τὸ συμβὰν ἐσκέψατο, ἀλλὰ τὴν τοῦ δεδρακότος διάνοιαν. ἔστι δ᾽ αὕτη τίς; ζῶντα νικῆσαι καὶ οὐκ ἀποκτεῖναι. εἰ δ᾽ ἐκεῖνος ἀσθενέστερος ἦν τὸν ὑπὲρ τῆς νίκης ἐνεγκεῖν πόνον, ἑαυτῷ τοῦ πάθους αἴτιον ἡγήσατο, διὸ τιμωρίαν οὐκ ἔδωκεν ὑπὲρ αὐτοῦ.
[54] 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.
[55] πάλιν ‘ἂν ἐν πολέμῳ’ φησὶν ‘ἀγνοήσας,’ καὶ τοῦτον εἶναι καθαρόν. καλῶς: εἰ γὰρ ἐγώ τινα τῶν ἐναντίων οἰηθεὶς εἶναι διέφθειρα, οὐ δίκην ὑπέχειν, ἀλλὰ συγγνώμης τυχεῖν δίκαιός εἰμι. ‘ἢ ἐπὶ δάμαρτι’ φησὶν ‘ἢ ἐπὶ μητρὶ ἢ ἐπ᾽ ἀδελφῇ ἢ θυγατρί, ἢ ἐπὶ παλλακῇ ἣν ἂν ἐπ᾽ ἐλευθέροις παισὶν ἔχῃ,’ καὶ τὸν ἐπὶ τούτων τῳ κτείναντ᾽ ἀθῷον ποιεῖ, πάντων γ᾽ ὀρθότατ᾽, ὦ ἄνδρες Ἀθηναῖοι, τοῦτον ἀφιείς. τί δήποτε;
[55] 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.
[56] ὅτι ὑπὲρ ὧν τοῖς πολεμίοις μαχόμεθα, ἵνα μὴ πάσχωσιν ὑβριστικὸν μηδ᾽ ἀσελγὲς μηδέν, ὑπὲρ τούτων καὶ τοὺς φιλίους, ἐὰν παρὰ τὸν νόμον εἰς αὐτοὺς ὑβρίζωσι καὶ διαφθείρωσιν, ἔδωκεν ἀποκτεῖναι. ἐπειδὴ γὰρ οὐ γένος ἐστὶν φιλίων καὶ πολεμίων, ἀλλὰ τὰ πραττόμεν᾽ ἐξεργάζεται τούτων ἑκάτερον, τοὺς ἐχθρὰ ποιοῦντας ἐν ἐχθροῦ μέρει κολάζειν ἀπέδωκεν ὁ νόμος. οὐκοῦν δεινόν, εἰ τοσούτων ὄντων ἐφ᾽ οἷς τοὺς ἄλλους ἔξεστιν ἀποκτιννύναι, μόνον ἀνθρώπων ἐκεῖνον μηδ᾽ ἐπὶ τούτοις ἐξέσται ἀποκτεῖναι.
[56] 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.
[57] φέρε, ἂν δέ τι συμβῇ τοιοῦτον οἷον ἴσως ἤδη τῳ καὶ ἄλλῳ, ἀπαλλαγῇ μὲν ἐκ Θρᾴκης, ἐλθὼν δ᾽ εἰς πόλιν οἰκῇ που, τῆς μὲν ἐξουσίας μηκέτι κύριος ὢν δι᾽ ἧς πολλὰ ποιεῖ τῶν ἀπειρημένων ὑπὸ τῶν νόμων, τοῖς δ᾽ ἔθεσιν καὶ ταῖς ἐπιθυμίαις ταῦτ᾽ ἐπιχειρῶν πράττειν, ἄλλο τι ἢ σιγῶντα δεήσει Χαρίδημον ἐᾶν αὑτὸν ὑβρίζειν; οὐ γὰρ ἀποκτεῖναί γ᾽ ἀσφαλὲς οὐδὲ τιμωρίαν λαβεῖν ἣν δίδωσ᾽ ὁ νόμος, διὰ τὸ ψήφισμα τουτί.
[57] 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.
[58] καὶ μὴν εἴ τις ἐκεῖν᾽ ὑπολαμβάνει, ποῦ δὲ γένοιτ᾽ ἂν ταῦτα; τί κωλύει κἀμὲ λέγειν, τίς δ᾽ ἂν ἀποκτείναι Χαρίδημον; ἀλλὰ μὴ τοῦτο σκοπῶμεν: ἀλλ᾽ ἐπειδήπερ ἐστὶ τὸ φεῦγον ψήφισμα οὐκ ἐπ᾽ ἤδη γεγενημένῳ τινὶ πράγματι, ἀλλ᾽ ἐπὶ τοιούτῳ ὃ μηδ᾽ εἰ γενήσεται μηδεὶς οἶδεν, τὸ μὲν τοῦ μέλλοντος ἔσεσθαι κοινὸν ἀμφοῖν ὑπαρχέτω, πρὸς δὲ τοῦθ᾽ ὑποθέντες ἀνθρωπίνως τὰς ἐλπίδας οὕτω σκοπῶμεν, ὡς τάχ᾽ ἄν, εἰ τύχοι, καὶ τούτων κἀκείνων συμβάντων.
[58] 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.
[59] λύσασι μὲν τοίνυν τὸ ψήφισμα, ἂν ἄρα συμβῇ τι παθεῖν ἐκείνῳ, εἰσὶν αἱ κατὰ τοὺς νόμους ὑπὲρ αὐτοῦ τιμωρίαι: ἐῶσι δέ, ἂν ἄρ᾽ ἐκεῖνος ζῶν ἀδικῇ τινα, ἀνῄρηται τοῖς ὑβριζομένοις ἡ μετὰ τῶν νόμων δίκη. ὥστε πανταχῇ καὶ ἐναντίον ἐστὶ τοῖς νόμοις τὸ ψήφισμα καὶ λῦσαι συμφέρει.
[59] 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.
[60] λέγε τὸν μετὰ ταῦτα νόμον.”Νόμος
καὶ ἐὰν φέροντα ἢ ἄγοντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενος κτείνῃ, νηποινεὶ τεθνάναι.”
ἄλλα ταῦτ᾽ ἐφ᾽ οἷς ἔξεστι κτεῖναι. ‘ἐὰν ἄγοντα ἢ φέροντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενος κτείνῃ, νηποινεὶ τεθνάναι’ κελεύει. θεάσασθε πρὸς Διὸς ὡς εὖ: τῷ μὲν ὑπειπών, ἐφ᾽ οἷς ἐξεῖναι κτείνειν, προσγράψαι τὸ ‘εὐθὺς’ ἀφεῖλε τὸν τοῦ βουλεύσασθαί τι κακὸν χρόνον: τῷ δὲ ‘ἀμυνόμενος’ γράψαι δηλοῖ τῷ πάσχοντι διδοὺς τὴν ἐξουσίαν, οὐκ ἄλλῳ τινί. ὁ μὲν δὴ νόμος εὐθὺς ἀμυνομένῳ δέδωκεν ἀποκτιννύναι, ὁ δ᾽ οὐδὲν εἴρηκεν, ἀλλ᾽ ἁπλῶς ‘ἐάν τις ἀποκτείνῃ,’ κἂν ὡς οἱ νόμοι διδόασιν.
[60] Read the next statute.”Law
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.
[61] ἀλλὰ νὴ Δία συκοφαντοῦμεν τὸ πρᾶγμα: τίνα γὰρ οἴσει ἢ ἄξει βίᾳ ἀδίκως Χαρίδημος; πάντας ἀνθρώπους. ἴστε γὰρ δήπου τοῦθ᾽ ὅτι πάντες οἱ στράτευμ᾽ ἔχοντες, ὧν ἂν οἴωνται κρείττους ἔσεσθαι, ἄγουσι καὶ φέρουσι χρήματ᾽ αἰτοῦντες. εἶτ᾽ οὐ δεινόν, ὦ γῆ καὶ θεοί, καὶ φανερῶς παράνομον, οὐ μόνον παρὰ τὸν γεγραμμένον νόμον, ἀλλὰ καὶ παρὰ τὸν κοινὸν ἁπάντων ἀνθρώπων, τὸν ἄγοντ᾽ ἢ φέροντα βίᾳ τἄμ᾽ ἐν πολεμίου μοίρᾳ μὴ ἐξεῖναί μοι ἀμύνεσθαι, εἴ γε μηδὲ τοῦτον τὸν τρόπον ἐξέσται Χαρίδημον ἀποκτεῖναι, ἀλλά, ἐὰν ἀδικῶν ἄγῃ καὶ φέρῃ βίᾳ τά τινος λῃζόμενος, ἀγώγιμος ὁ κτείνας ἔσται, τοῦ νόμου διδόντος, ἐὰν ἐπὶ τούτοις, ἀθῷον εἶναι;
[61] 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.
