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.
23.55Again, “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.
23.56Why? 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.
23.57Let 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.
