by Demosthenes
[73] If he had merely advised us of the right course for the future, there would have been no harm in it but, when a court of justice has given its verdict and determined the issue, is it not outrageous to introduce a law by which that verdict is to be rescinded? It is as though, after allowing the law of Timocrates to become operative, someone should draft a second law to this effect: “if any persons being indebted, and having had the further penalty of imprisonment passed upon them, shall have put in sureties as the law directs, they shall not be entitled to such bail, and it shall not be lawful hereafter to release anyone on bail.”
[74] ἀλλ᾽ οὔτε ταῦτα ποιήσειεν ἂν οὐδεὶς ὑγιαίνων, οἶμαι, σύ τ᾽ ἐκεῖνα λύων ἠδίκεις. χρῆν γὰρ αὐτόν, εἰ τὸ πρᾶγμ᾽ ἐνόμιζεν δίκαιον, ἐπὶ τοῖς ὕστερον γενησομένοις θεῖναι τὸν νόμον, καὶ μὴ συνενεγκόντ᾽ εἰς ταὐτὸ τὰ μέλλοντα τοῖς παρεληλυθόσιν καὶ τὰ μὴ δῆλα τοῖς φανεροῖς ἀδικήμασιν, εἶτ᾽ ἐπὶ πᾶσι γράψαι τὴν αὐτὴν γνώμην. πῶς γὰρ οὐ δεινὸν τῶν αὐτῶν ἠξιωκέναι δικαίων τοὺς ἐξεληλεγμένους ἀδικοῦντας τὴν πόλιν πρότερον καὶ τοὺς μηδ᾽ εἰ κρίσεως ἄξιον ἐργάσονταί τι δήλους;
[74] I suppose that no man in his senses would do such a thing; and you, sir, were guilty when you tried to annul those other provisions. For if he thought it a fair thing to do, his proper course was to introduce a law governing future transactions; not to lump together all offences, past and future, proven and unproven, and then register an indiscriminate judgement upon all together. Surely it is outrageous that men who have already been convicted of offences against the common weal should be deemed worthy of the same judicial treatment as men of whom it is not yet known whether they will ever do anything that deserves prosecution?
[75] καὶ μὴν κἀκεῖθεν ἴδοι τις ἂν ὡς δεινὸν πεποίηκεν τὸ θεῖναι περὶ τῶν παρεληλυθότων τὸν νόμον, εἰ λογίσαιτο παρ᾽ αὑτῷ τί ποτ᾽ ἐστὶν ᾧ νόμος ὀλιγαρχίας διαφέρει, καὶ τί δή ποθ᾽ οἱ μὲν ὑπὸ νόμων ἐθέλοντες ἄρχεσθαι σώφρονες καὶ χρηστοὶ νομίζονται, οἱ δ᾽ ὑπὸ τῶν ὀλιγαρχιῶν ἄνανδροι καὶ δοῦλοι.
[75] Again, we may discern how monstrously he has acted in making his law retrospective, by asking ourselves what is the real difference between government by law and oligarchy; and why we regard those who prefer to live under laws as honest, sober-minded persons, and those who submit to oligarchical rule as cowards and slaves.
[76] εὕροι γὰρ ἂν ὡς ἀληθῶς τοῦτο προχειρότατον, ὅτι τῶν μὲν ἐν ταῖς ὀλιγαρχίαις ἕκαστος καὶ τὰ πεπραγμένα λῦσαι καὶ περὶ τῶν μελλόντων ἃν αὐτῷ δοκῇ προστάξαι κύριός ἐστιν, οἱ δὲ νόμοι περὶ τῶν μελλόντων ἃ χρὴ γίγνεσθαι φράζουσιν, μετὰ τοῦ πεῖσαι τεθέντες ὡς συνοίσουσι τοῖς χρωμένοις. Τιμοκράτης τοίνυν ἐν δημοκρατουμένῃ τῇ πόλει νομοθετῶν τὴν ἐκ τῆς ὀλιγαρχίας ἀδικίαν εἰς τὸν αὑτοῦ νόμον μετήνεγκεν, καὶ περὶ τῶν παρεληλυθότων αὑτὸν κυριώτερον τῶν καταγνόντων δικαστῶν ἠξίωσε ποιῆσαι.
[76] The outstanding difference you will find to be really this: under oligarchical government everybody is entitled to undo the past, and to prescribe future transactions according to his own pleasure; whereas the laws of a free state prescribe what shall be done in the future, such laws having been enacted by convincing people that they will be beneficial to those who live under them. Timocrates however, legislating in a democratically governed city, has introduced into his law the characteristic iniquity of oligarchy; and in dealing with past transactions has presumed to claim for himself an authority higher than that of the convicting jury.
[77] καὶ οὐ τοῦτο μόνον πεποίηκεν ὑβριστικόν, ἀλλὰ καὶ γέγραπται, ‘ἢ τὸ λοιπὸν ἐάν τινι προστιμηθῇ δεσμοῦ, εἶναι καταστήσαντι τοὺς ἐγγυητάς, ἦ μὴν ἐκτείσειν, ἀφεῖσθαι.’ καίτοι χρῆν αὐτόν, εἰ τὸ δεδέσθαι δεινὸν ἡγεῖτο, μηδενὶ προστιμᾶν ὃς ἂν ὑμῖν ἐγγυητὰς καθιστῇ δεσμοῦ νομοθετῆσαι, μὴ προλαβόντα κατεγνωκότας ὑμᾶς τὸν δεσμὸν μηδ᾽ ἐχθρῶς διαθέντα πρὸς ὑμᾶς τὸν ἑαλωκότα, τηνικαῦτα ποιεῖν τὴν ἐξεγγύησιν. νυνὶ δ᾽, ὥσπερ ἐνδεικνύμενος ὅτι, κἂν ὑμῖν δοκῇ δεδέσθαι τινά, αὐτὸς ἀφήσει, τοῦτον τὸν τρόπον τὸν νόμον εἰσήνεγκεν.
[77] Nor is this the only example of his arrogance. It is further enacted that “if hereafter the additional penalty of imprisonment shall have been imposed, the prisoner may be released on producing sureties for payment of his fine.” If he really thought imprisonment such a dreadful infliction, his proper course was to enact that no man who produces sureties shall be committed to prison; but not, having first found that you have passed sentence of imprisonment and so incurred the resentment of the convict, then to give him a discharge on bail. In fact, he has introduced his law in this fashion by way of advertising himself as one who will, on his own authority, release prisoners, though you may have decided to keep them in jail.
[78] ἆρ᾽ οὖν τῷ δοκεῖ συμφέρειν τῇ πόλει τοιοῦτος νόμος ὃς δικαστηρίου γνώσεως αὐτὸς κυριώτερος ἔσται, καὶ τὰς ὑπὸ τῶν ὀμωμοκότων γνώσεις τοῖς ἀνωμότοις προστάξει λύειν; ἐγὼ μὲν οὐκ οἶμαι. φαίνεται τοίνυν ὁ τούτου νόμος ταῦτ᾽ ἔχων ἀμφότερα. ὥστ᾽ εἴπερ ὑμῶν ἑκάστῳ μέλει τι τῆς πολιτείας καὶ δεῖν οἴεται κυρίαν εἶναι τὴν αὑτοῦ γνώμην περὶ ὧν ἂν ὀμωμοκὼς ψηφίσηται, λυτέος καὶ οὐκ ἐατέος οὗτος ὁ τοιοῦτος νόμος κύριος νυνὶ γενέσθαι.
[78] Can anyone see any public advantage in a law that is to override the decisions of a court of justice, and that requires unsworn persons to cancel the judgements of sworn juries ? I hope not. It is clear that the law of Timocrates has both these faults; and if you have, each one of you, any regard for the constitution, or if you claim authority for your own decision of the questions on which you give your verdict under oath, you must abrogate a law like this, and not permit it to be made valid today.
[79] οὐ τοίνυν ἀπέχρησεν αὐτῷ τὰ δικαστήρι᾽ ἄκυρα ποιῆσαι τῶν προστιμημάτων, ἀλλ᾽ οὐδ᾽ ἃ δίκαι᾽ ὡρίσατ᾽ αὐτὸς ἐν τῷ νόμῳ καὶ προσέταξε τοῖς ὠφληκόσιν, οὐδὲ ταῦθ᾽ ἁπλῶς οὐδ᾽ ἀδόλως φανήσεται γεγραφώς, ἀλλ᾽ ὡς ἂν μάλιστά τις ὑμᾶς ἐξαπατῆσαι καὶ παρακρούσασθαι βουλόμενος. σκέψασθε γὰρ ὡς γέγραφεν. ‘Τιμοκράτης εἶπεν’ φησὶ ‘καὶ εἴ τινι τῶν ὀφειλόντων τῷ δημοσίῳ προστετίμηται κατὰ νόμον ἢ κατὰ ψήφισμα δεσμοῦ ἢ τὸ λοιπὸν προστιμηθῇ, εἶναι αὐτῷ ἢ ἄλλῳ ὑπὲρ ἐκείνου ἐγγυητὰς καταστῆ
σαι, οὓς ἂν ὁ δῆμος χειροτονήσῃ, ἦ μὴν ἐκτείσειν.’
[79] He was not satisfied with destroying the authority of this court in respect of additional penalties, but you will find that even the proceedings which he has prescribed in his law, and imposed upon culprits who have been condemned, have not been drafted with honesty and sincerity, but as though his main purpose was to mislead and overreach you. Observe the phrasing: “Moved by Timocrates that, if the additional penalty of imprisonment has been or shall hereafter be inflicted in pursuance of any law or decree upon any person in debt to the treasury, it shall be competent for him or for any other person on his behalf to nominate as sureties for the debt such persons as shall be approved on vote by the Assembly.”
[80] ἐνθυμεῖσθ᾽ ἀπὸ τοῦ δικαστηρίου καὶ τῆς καταγνώσεως οἷ διεπήδησεν: ἐπὶ τὸν δῆμον, ἐκκλέπτων τὸν ἠδικηκότα καὶ τὴν παράδοσιν αὐτοῦ τὴν τοῖς ἕνδεκα. τίς γὰρ ἀρχὴ παραδώσει τὸν ὀφλόντα; τίς τῶν ἕνδεκα παραλήψεται; κελεύοντος μὲν τούτου ἐν τῷ δήμῳ καθιστάναι τοὺς ἐγγυητάς, ἀδυνάτου δ᾽ ὄντος αὐθημερὸν ἐκκλησίαν ἅμα καὶ δικαστήριον γενέσθαι, οὐδαμοῦ δ᾽ ἐπιτάττοντος φυλάττειν τέως ἂν καταστήσῃ τοὺς ἐγγυητάς.
[80] See what a long stride he has taken from the court of justice and its sentences! Even to the Assembly; for he steals the person of the criminal, as well as the right to hand him over to the Eleven. What magistrate will ever hand over the delinquent? What member of the Eleven will ever accept custody? The order of Timocrates is that sureties are to be nominated in the Assembly; it is impossible for the Assembly and the Courts to be in session on the same day; and there is no injunction to keep the man in custody until he has named his sureties.
[81] καίτοι τί ποτ᾽ ἦν δι᾽ ὃ προσγράψαι σαφῶς ὤκνησεν ‘τὴν δ᾽ ἀρχὴν τὸν ὀφλόντα φυλάττειν τέως ἂν καταστήσῃ τοὺς ἐγγυητάς’; πότερ᾽ οὐχὶ δίκαιον; εὖ οἶδ᾽ ὅτι πάντες ἂν φήσαιτε. ἀλλ᾽ ἐναντίον ἦν τινὶ τοῦτο νόμῳ; οὔκ, ἀλλὰ μόνον κατὰ τοὺς νόμους. τί ποτ᾽ οὖν ἦν; οὐδὲν ἂν ἄλλο τις εὕροι πλὴν ὅτι οὐχ ὅπως δώσουσι δίκην ὧν ἂν ὑμεῖς καταγνῶτ᾽ ἐσκόπει, ἀλλ᾽ ὅπως μή.
[81] Why should he have been afraid to add a distinct injunction that “the magistrate shall keep the delinquent in custody until he shall have put in his sureties”? Is not that quite fair? I am sure you will all say yes. Would it have been contrary to any statute ? No, indeed; it would have been the only clause that does conform to the statutes. Then what was his reason? There is no discoverable reason except this, — that his purpose was not to help but to obstruct the punishment of criminals condemned by you.
[82] εἶτα πῶς γέγραπται μετὰ ταῦτα; ‘καθιστάναι τοὺς ἐγγυητὰς ἦ μὴν ἐκτείσειν τὸ ἀργύριον ὃ ὦφλεν.’ ἐνταυθὶ πάλιν τῶν ἱερῶν μὲν χρημάτων τὴν δεκαπλασίαν ὑφῄρηται, τῶν δ᾽ ὁσίων, ὁπόσων ἐν τῷ νόμῳ διπλασιάζεται, τὸ ἥμισυ. πῶς δὴ τοῦτο ποιεῖ; γράψας ἀντὶ μὲν τοῦ τιμήματος τὸ ἀργύριον, ἀντὶ δὲ τοῦ ‘τὸ γιγνόμενον,’ ‘ὃ ὦφλεν.’
[82] Well, how does it go on? “To nominate sureties on an undertaking to pay in full the amount in which he was indebted.” Here again he has stolen away the right of the sacred funds to a tenfold payment, and one-half of the claim of the civil treasury, in cases where double payment is required by law. And how does he manage that? By writing “the amount” instead of “the penalty,” and “in which he was indebted” instead of “which has accrued.”
[83] διαφέρει δὲ τί; εἰ μὲν ἔγραψε καθιστάναι τοὺς ἐγγυητὰς ἦ μὴν ἐκτείσειν τὸ τίμημα τὸ γιγνόμενον, προσπεριειλήφει τοὺς νόμους ἂν καθ᾽ οὓς τὰ μὲν διπλᾶ, τὰ δὲ καὶ δεκαπλᾶ γίγνεται τῶν ὀφλημάτων: ὥστ᾽ ἐκ τούτων ἦν ἀνάγκη τοῖς ὀφλοῦσιν τὸ γεγραμμένον τ᾽ ἐκτίνειν καὶ τὰς ἐκ τῶν νόμων προσούσας ζημίας καταβάλλειν. νῦν δ᾽ ἐν τῷ γράψαι ‘τὴν κατάστασιν εἶναι τῶν ἐγγυητῶν ἦ μὴν ἐκτείσειν τὸ ἀργύριον ὃ ὦφλεν,’ ἐκ τῆς λήξεως καὶ τῶν γραμμάτων ἐφ᾽ οἷς ἕκαστος εἰσήχθη ποιεῖ τὴν ἔκτισιν, ἐν οἷς πᾶσιν ἁπλοῦν ὅ τις ὦφλεν ἀργύριον γέγραπται.
[83] The difference is this: if he had proposed that sureties should be appointed to guarantee the payment of the accruing penalty, he would have embraced in his enactment the statutes under which certain debts are doubled, and others multiplied by ten; and so the debtor would have been obliged not only to pay in full the amount of the debt as recorded, but also to liquidate the penal payments legally added thereto. As it is, by the words “nominate sureties on an undertaking to pay in full the amount in which he was indebted,” he makes the payment depend on the plaint and the documents upon which the several delinquents were brought to trial; and in those documents only the original amount of the debt is recorded.
[84] μετὰ ταῦτα τοίνυν τηλικοῦτο πρᾶγμ᾽ ἀνελὼν ἐν τῇ τῶν ῥημάτων μεταθέσει, προσέγραψεν ‘τοὺς δὲ προέδρους ἐπιχειροτονεῖν ἐπάναγκες, ὅταν τις καθιστάναι βούληται,’ παρὰ πάντα τὸν νόμον οἰόμενος δεῖν σῴζειν τὸν ἠδικηκότα καὶ τὸν ἐν ὑμῖν ἑαλωκότα. δοὺς γὰρ ὅταν βούληται τὴν κατάστασιν αὐτῷ τῶν ἐγγυητῶν, ἐπ᾽ ἐκείνῳ πεποίηκεν μηδέποτ᾽ ἐκτεῖσαι μηδὲ δεθῆναι.
[84] Again, after making such a big hole in the laws by juggling with words, he adds: “the Commissioners are required to put the question whensoever any debtor wishes to nominate sureties,” for right through his law he thinks it his business to rescue the criminal who has been convicted in this court. By allowing the nomination of sureties to take place at the pleasure of the delinquent, he puts it into his power never to pay, and never to go to prison.
[85] τίς γὰρ οὐ ποριεῖται φαύλους ἀνθρώπους, οὓς ὅταν ὑμεῖς ἀποχειροτονήσητ᾽ ἀπηλλάξεται; ἐὰν γάρ τις ὡς οὐ καθιστάντα τοὺς ἐγγυητὰς ἀξιοῖ δεδέσθαι, φήσει καὶ καθιστάναι καὶ καταστήσειν, καὶ δείξει τὸν τούτου νόμον, ὃς καθιστάναι μὲν ὅταν βούληται κελεύει, φυλάττειν δὲ τέως οὐ λέγει, οὐδ᾽, ἂν ἀποχειροτονήσηθ᾽ ὑμεῖς τοὺς ἐγγυητάς, προστάττει δεδέσθαι, ἀλλ᾽ ὡς ἀληθῶς ὥσπερ ἀλεξιφάρμακόν ἐστι τοῖς ἀδικεῖν βουλομένοις.
[85] Of course he will put forward men of straw, and by the time you have rejected them, he will be out of your reach. For if anyone demands his retention in jail for failing to produce sureties, he will reply that he has done so, and intends to do so; and then he will point to the statute of Timocrates, which bids him nominate sureties whenever he likes, but says nothing about custody in the meantime, which gives no instruction for imprisonment in case you reject the sureties, which is, in short,
a sort of universal talisman for would-be evil-doers.
[86] ‘τῷ δὲ καταστήσαντι’ φησὶ ‘τοὺς ἐγγυητάς, ἐὰν ἀποδιδῷ τῇ πόλει τὸ ἀργύριον.’ πάλιν ἐνταῦθ᾽ ἐπέμειν᾽ ἐπὶ τοῦ κακουργήματος ὃ μικρῷ πρότερον εἶπον, καὶ οὐκ ἐπελάθετο, οὐδ᾽ ἔγραψε τὸ τίμημα τὸ γιγνόμενον, ἀλλὰ τὸ ἀργύριον ὃ ὦφλεν, ἐὰν ἀποδιδῷ, ἀφεῖσθαι τοῦ δεσμοῦ.
[86] “The debtor who has given sureties,” he goes on, “shall be released from the penalty of imprisonment on payment to the State of the money in respect of which he gave sureties.” Here again he persisted in the trick I mentioned just now; he had not forgotten it; he enacted that the man shall be released from prison on payment, not of the accruing penalty, but of the original debt.
[87] ‘ἐὰν δὲ μὴ καταβάλῃ τὸ ἀργύριον ἢ αὐτὸς ἢ οἱ ἐγγυηταὶ ἐπὶ τῆς ἐνάτης πρυτανείας, τὸν μὲν ἐξεγγυηθέντα δεδέσθαι, τῶν δ᾽ ἐγγυητῶν δημοσίαν εἶναι τὴν οὐσίαν.’ ἐν δὴ τῷ τελευταίῳ τούτῳ παντελῶς αὐτὸς αὑτοῦ κατήγορος, ὡς ἀδικεῖ, γεγονὼς φανήσεται. οὐ γὰρ ὅλως τὸ δεδέσθαι τινὰ τῶν πολιτῶν αἰσχρὸν ἢ δεινὸν νομίσας ἀπεῖπε μὴ δεῖν, ἀλλὰ τὸν καιρὸν ἐν ᾧ τὸν ἠδικηκότ᾽ ἐνῆν παρόντα λαβεῖν ἐκκλέψας, τοὔνομα μὲν τῆς τιμωρίας ἔλιπεν τοῖς ἀδικουμένοις ὑμῖν, τὸ δ᾽ ἔργον ἀφείλετο. καὶ παρ᾽ ἀκόντων ἔδωκ᾽ ἄφεσιν τοῖς τὰ ὑμέτερ᾽ ἀξιοῦσιν ἔχειν βίᾳ, καὶ μόνον οὐ προσέγραψε δίκην ἐξεῖναι λαχεῖν αὐτῷ κατὰ τῶν δικαστῶν τῶν προστιμησάντων τοῦ δεσμοῦ.