23.46If 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.”
23.47Now 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.
23.48Then 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?
23.49Yet 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?—
23.50Observe, 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.
23.51Read 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.
23.52Now 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.
23.53Read 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.
23.54Yet 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.
