by Demosthenes
[36] 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.
[37] λέγε τοὺς ἐφεξῆς νόμους.”Νόμος
ἐὰν δέ τις τὸν ἀνδροφόνον κτείνῃ ἢ αἴτιος ᾖ φόνου, ἀπεχόμενον ἀγορᾶς ἐφορίας καὶ ἄθλων καὶ ἱερῶν Ἀμφικτυονικῶν, ὥσπερ τὸν Ἀθηναῖον κτείναντα, ἐν τοῖς αὐτοῖς ἐνέχεσθαι, διαγιγνώσκειν δὲ τοὺς ἐφέτας.”
τουτονὶ δεῖ μαθεῖν ὑμᾶς, ὦ ἄνδρες Ἀθηναῖοι, τὸν νόμον τί ποτ᾽ ἐβούλεθ᾽ ὁ θείς: ὄψεσθε γὰρ ὡς ἅπαντ᾽ εὐλαβῶς διώρισε καὶ νομίμως.
[37] Read the statutes that come next in order.”Law
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.
[38] ‘ἐάν τις ἀποκτείνῃ τὸν ἀνδροφόνον’ φησὶν ‘ἢ αἴτιος ᾖ φόνου, ἀπεχόμενον ἀγορᾶς ἐφορίας καὶ ἄθλων καὶ ἱερῶν Ἀμφικτυονικῶν, ὥσπερ τὸν Ἀθηναῖον κτείναντα, ἐν τοῖς αὐτοῖς ἐνέχεσθαι, διαγιγνώσκειν δὲ τοὺς ἐφέτας.’ τί δὴ ταῦτ᾽ ἐστίν; ἐκεῖνος ᾤετο τὸν πεφευγότ᾽ ἐπ᾽ αἰτίᾳ φόνου καὶ ἑαλωκότα, ἐάνπερ ἅπαξ ἐκφύγῃ καὶ σωθῇ, εἴργειν μὲν τῆς τοῦ παθόντος πατρίδος δίκαιον εἶναι, κτείνειν δ᾽ οὐχ ὅσιον πανταχοῦ. τί σκοπῶν; ὅτι καὶ τοὺς δεῦρο πεφευγότας, ἂν ἡμεῖς τοὺς ἑτέρωσ᾽ ἀποκτιννύωμεν, ἀποκτενοῦσ᾽ ἕτεροι.
[38] “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;
[39] εἰ δὲ τοῦτ᾽ ἔσται, ἡ μόνη λοιπὴ τοῖς ἀτυχοῦσιν ἅπασι σωτηρία διαφθαρήσεται. ἔστι δ᾽ αὕτη τίς; ἐκ τῆς τῶν πεπονθότων μεταστάντα εἰς τὴν τῶν μηδὲν ἠδικημένων ἀδεῶς μετοικεῖν. ἵνα δὴ μὴ τοῦτ᾽ ᾖ μηδ᾽ ἀπέραντοι τῶν ἀτυχημάτων αἱ τιμωρίαι γίγνωνται, ἔγραψεν ‘ἐάν τις τὸν ἀνδροφόνον κτείνῃ ἀπεχόμενον’ φησὶν ‘ἀγορᾶς ἐφορίας.’ τί τοῦτο λέγων; τῶν ὁρίων τῆς χώρας: ἐνταῦθα γάρ, ὥς γ᾽ ἐμοὶ δοκεῖ, τἀρχαῖα συνῇσαν οἱ πρόσχωροι παρά θ᾽ ἡμῶν καὶ τῶν ἀστυγειτόνων, ὅθεν ὠνόμακεν ‘ἀγορὰν ἐφορίαν.’
[39] 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.”
[40] καὶ πάλιν ‘ἱερῶν Ἀμφικτυονικῶν.’ τί δήποτε καὶ τούτων ἀπέκλεισε τὸν ἀνδροφόνον; ὅσων τῷ παθόντι ζῶντι μετῆν, τούτων εἴργει τὸν δεδρακότα, πρῶτον μὲν τῆς πατρίδος καὶ τῶν ἐν ταύτῃ πάντων καὶ ὁσίων καὶ ἱερῶν, τὴν ἐφορίαν ἀγορὰν ὅρον προσγράψας ἧς εἴργεσθαί φησιν, εἶτα τῶν ἱερῶν τῶν ἐν Ἀμφικτύοσιν: καὶ γὰρ τούτων, εἴπερ ἦν Ἕλλην ὁ παθών, μετῆν αὐτῷ. ‘καὶ ἄθλων.’ διὰ τί; ὅτι κοινοὶ πᾶσίν εἰσιν οἱ κατὰ τὴν Ἑλλάδ᾽ ἀγῶνες, κατὰ δὲ τὴν πάντων μετουσίαν μετῆν καὶ τούτων τῷ πεπονθότι: καὶ τούτων οὖν ἀπεχέσθω.
[40] 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.
[41] τούτων μὲν δὴ τὸν εἰργασμένον εἴργει. ἂν δ᾽ ἔξω τούτων κτείνῃ τις αὐτὸν ἄλλοθι, τὴν αὐτὴν ὑπὲρ αὐτοῦ δίκην δέδωκεν ἥνπερ ἂν τὸν Ἀθηναῖον κτείνῃ. τὸν γὰρ φυγάδα τὸ τῆς πόλεως οὐ προσεῖπ᾽ ὄνομα, ἧς οὐκ ἔστι ματουσία αὐτῷ, ἀλλὰ τὸ τοῦ πράγματος, ᾧ κατέστησεν αὑτὸν ἐκεῖνος ἔνοχον: καὶ διὰ ταῦτ᾽ ‘ἄν τις ἀποκτείνῃ’ φησὶ ‘τὸν ἀνδροφόνον.’ εἶτ᾽ εἰπὼν ὧν εἰργόμενον, ἐπὶ τῷ τὴν τιμωρίαν νομίμως ἐπιθεῖναι τὸ τῆς πόλεως ὄνομ᾽ ὠνόμασεν, ‘τοῖς αὐτοῖς ἐνεχέσθω καθάπερ ἂν τὸν Ἀθηναῖον ἀποκτείνῃ’ γράψας, ἀνομοίως, ὦ ἄνδρες Ἀθηναῖοι, τῷ τουτὶ τὸ ψήφισμ᾽ εἰρηκότι.
[41] 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 pun
ishment: “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.
[42] καίτοι πῶς οὐχὶ δεινὸν εἰ, οἷς ὁ νόμος δέδωκεν, ἐὰν ὧν εἶπον εἴργωνται, μετ᾽ ἀσφαλείας ζῆν φεύγουσιν, τούτους ἐκδότους τις εἶναι γράφει, καὶ ἀφαιρεῖται τὸ τῆς συγγνώμης ὠφέλιμον, ὃ τοῖς ἀτυχοῦσιν ὑπάρχειν εἰκὸς παρὰ τῶν ἔξω τῶν ἐγκλημάτων ὄντων, ὅτῳ ποτὲ τῶν πάντων ἀπόκειται ἄδηλον ὄν, μὴ προδήλου τῆς ἐπιούσης τύχης οὔσης ἑκάστῳ; καὶ νυνὶ τὸν ἀποκτείναντα Χαρίδημον, ὄντως ἂν ἄρα τοῦτο γένηται, ἂν ἀνταποκτείνωσί τινες λαβόντες ἔκδοτον, πεφευγότα καὶ τῶν νομίμων εἰργόμενον, ἔνοχοι μὲν αὐτοὶ ταῖς φονικαῖς δίκαις ἔσονται, ἔνοχος δὲ σύ:
[42] 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.
[43] καὶ γὰρ ‘ἄν τις αἴτιος ᾖ’ γέγραπται, ἔσει δ᾽ αἴτιος τὴν διὰ τοῦ ψηφίσματος ἐξουσίαν δεδωκώς. οὐκοῦν εἰ μὲν ἐάσομεν ὑμᾶς τούτων συμβάντων, οὐ καθαροῖς οὖσιν ὁμοῦ διατρίψομεν: εἰ δ᾽ ἐπέξιμεν, οἷς ἐγνώκαμεν αὐτοὶ τἀναντία πράττειν ἀναγκασθησόμεθα. ἆρά γε μικρὸν ἢ τὸ τυχόν ἐστιν ὑπὲρ οὗ δεῖ λῦσαι τὸ ψήφισμ᾽ ὑμᾶς;
[43] 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?
[44] λέγε δὴ τὸν μετὰ ταῦτα νόμον.”Νόμος
ἐάν τίς τινα τῶν ἀνδροφόνων τῶν ἐξεληλυθότων, ὧν τὰ χρήματα ἐπίτιμα, πέρα ὅρου ἐλαύνῃ ἢ φέρῃ ἢ ἄγῃ, τὰ ἴσα ὀφείλειν ὅσα περ ἂν ἐν τῇ ἡμεδαπῇ δράσῃ.”
ἄλλος οὗτος, ὦ ἄνδρες Ἀθηναῖοι, νόμος ἀνθρωπίνως καὶ καλῶς κείμενος, ὃν παραβὰς οὗτος ὁμοίως φανήσεται.
[44] 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.
[45] ‘ἐάν τίς τινα τῶν ἀνδροφόνων’ φησὶ ‘τῶν ἐξεληλυθότων, ὧν τὰ χρήματα ἐπίτιμα.’ τῶν ἐπ᾽ ἀκουσίῳ φόνῳ λέγει μεθεστηκότων. τῷ τοῦτο δῆλον; τῷ τ᾽ ‘ἐξεληλυθότων’ εἰπεῖν, ἀλλὰ μὴ φευγόντων, καὶ τῷ διορίζειν ‘ὧν τὰ χρήματα ἐπίτιμα:’ τῶν γὰρ ἐκ προνοίας δεδήμευται τὰ ὄντα.
[45] “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?
[46] περὶ μὲν δὴ τῶν ἀκουσίων ἂν λέγοι. λέγει δὲ τί; ‘ἐὰν πέρα ὅρου’ φησὶν ‘ἐλαύνῃ ἢ φέρῃ ἢ ἄγῃ.’ τοῦτο δ᾽ ἐστὶν τί, τὸ ‘πέρα ὅρου’; ἔστι πᾶσιν ὅρος τοῖς ἀνδροφόνοις τῆς τοῦ παθόντος εἴργεσθαι πατρίδος. ἐκ μὲν δὴ ταύτης δίδωσιν ἐλαύνειν καὶ ἄγειν, πέρα δ᾽ οὐκ ἐᾷ τούτων οὐδέτερον ποιεῖν. ἐὰν δέ τις παρὰ ταῦτα ποιῇ, τὴν αὐτὴν ἔδωκεν ὑπὲρ αὐτοῦ δίκην ἥνπερ ἂν εἰ μένοντ᾽ ἠδίκει οἴκοι, γράψας ταὔτ᾽ ὀφείλειν ἅπερ ἂν οἴκοι δράσῃ.
[46] 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.”
[47] εἰ δή τις ἔροιτ᾽ Ἀριστοκράτην τουτονί （καὶ μὴ νομίσητ᾽ εὔηθες τὸ ἐρώτημα） πρῶτον μὲν εἰ οἶδεν εἴ τις ἀποκτενεῖ Χαρίδημον, ἢ καὶ ἄλλως πως τελευτήσει, οὐκ ἄν, οἶμαι, φαίη. θήσομεν τοίνυν ἀποκτενεῖν. πάλιν οἶσθα, ἑκὼν ἢ ἄκων, καὶ ξένος ἢ πολίτης ὁ τοῦτο ποιήσων ἔσται;
[47] 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.
[48] οὐκ ἔνεστ᾽ εἰπεῖν ὡς οἶσθα. οὐκοῦν ταῦτά γε δήπου προσῆκε γράψαι ‘ἐάν τις ἀποκτείνῃ’ γράφοντα, ἄκων ἢ ἑκών, ἀδίκως ἢ δικαίως, ξένος ἢ πολίτης, ἵν᾽ ὅτῳ ποτὲ τοὔργον ἐπράχθη, τούτῳ τὰ ἐκ τῶν νόμων ὑπῆρχε δίκαια, μὴ μὰ Δί᾽ αὐτὸ τὸ τῆς αἰτίας ὄνομ᾽ εἰπόντα ‘ἀγώγιμος ἔστω’ προσγράψαι. τίνα γὰρ σὺ λέλοιπας ὅρον τῷ γράμματι τούτῳ, τοῦ νόμου σαφῶς οὑτωσὶ λέγοντος μὴ πέρα ὅρων ἐλαύνειν, ὃς πανταχόθεν δίδως ἄγειν;
[48] 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?
[49] ὁ νόμος δ᾽ οὐκ ἐλαύνειν τῶν ὅρων πέρα, ἀλλ᾽ οὐδ᾽ ἄγειν ἐᾷ. ἐκ δὲ τοῦ σοῦ ψηφίσματος ὁ βουλόμενος ἄξει τὸν ἄκοντ᾽ ἀπεκτονότα, ἔκδοτον λαβών, εἰς τὴν τοῦ παθόντος βίᾳ πατρίδα. ἆρ᾽ οὐ πάντα συγχεῖς τἀνθρώπινα, καὶ ἀφαιρεῖ τὴν πρόφασιν μεθ᾽ ἧς ἢ καλόν ἐστιν ἕκαστον τῶν ἔργων ἢ αἰσχρόν;
[49] 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? —