and violated by the present decree. For where there is no summons, no trial, no testimony of a witness, no swearing of an oath, but immediately after the charge the punishment is ordered, and one too which the laws prohibit, what else can one say? All these proceedings take place before five courts, as appointed by the laws. But perhaps it may be said the courts are of no account, and are not founded in justice, whereas the defendant's ordinances are just and honourable. Quite the contrary. I don't know that there has ever been a decree passed in Athens more shameful than the defendant's; while, of all tribunals that exist among mankind, none can be shown more august or equitable than these. I would briefly advert to certain facts, the mention of which brings honour and renown to the commonwealth, and which you will be better pleased to hear. I will begin with that which will throw the fullest light upon the subject, after referring to the grant which has been made to Charidemus.

We, men of Athens, created Charidemus a citizen, and by means of such grant we admitted him to civil and religious communion, to partake in our legal rights, in all that we ourselves enjoy. There are many institutions among us of a character not to be found elsewhere, but one there is the most peculiar of all, and the most highly venerable, the court of Areopagus, respecting which we have more glorious traditions and myths, and more honourable testimonies of our own, than we have of any other tribunal;1 of which it is proper you should hear one or two by way of example. In ancient times, as we are informed by tradition, the Gods in this tribunal alone deigned both to

and more peculiarly to the solemn oath sworn in cases of homicide, of which Demosthenes speaks a little further on.

See Meier and Schömann, Att. Proc. p. 624, and the Eighth and Ninth Appendices to this Volume.

1 The Areopagus was frequently praised both by orators and poets. See Vol. II. Appendix III. I suspect Demosthenes in this passage to have had Sophocles in his eye; Edipus, Colon. 947:

Τοιοῦτον αὐτοῖς ̓́Αρεος εὔβουλον πάγον

ἐγὼ ξυνῄδη χθόνιον ὄνθ ̓, ὃς οὐκ ἐᾷ

Τοιούσδ ̓ ἀλήτας τῇδ ̓ ὁμοῦ ναίειν πόλει.

Cicero, praising the conduct of the Roman senate, calls it "a perfect Areopagus." Epist. ad Attic. i. 14. "Senatus apelos mayos. Nihil constantius, nihil severius, nihil fortius."

demand and to render justice for murder, and to sit in judgnient upon disputes between each other; so says the legend: Neptune demanded justice of Mars on behalf of his son Halirrhothius,1 and the twelve Gods sat in judgment between the Furies and Orestes. Such are its ancient

glories now for those of later date.

This tribunal neither despot nor oligarchy nor democracy has ventured to deprive of its jurisdiction in murder: all people consider that any process of their own invention would be less efficacious than that devised by the Areopagites. In addition to such important facts, here only has it occurred that neither a convicted criminal nor a defeated prosecutor ever established a charge against the propriety of the verdict.2 In contempt of this jurisdiction and of the legal remedies attached to it, the author of the present decree has empowered Charidemus in his lifetime to do what he pleases, and, in case any disaster should befal him, has given the means of persecution to his friends.

Just consider. Of course you all know that in the Areopagus, where the law allows and requires proceedings to be taken for murder, in the first place the party who charges another with any such crime will make oath with imprecations upon himself and his family and his house; in the next place it is no ordinary oath that he has to swear, but such as is taken upon no other occasion; for he must stand upon the entrails of a boar and a ram and a bull, and they must have been immolated by the proper persons and on

1 Mars killed him, according to the fable, to avenge the violence offered to his daughter Alcippe. The place where the murder was tried was hence called Areopagus, or the Hill of Mars. Apollodorus, Myth.

iii. 14. 2.

2

Negavit hoc postremis suis temporibus ipse Demosthenes, cùm ab Areopagitico Senatu acceptæ ab Harpalo pecuniæ damnaretur."

Reiske.

"Fortasse etiam prius fuerunt qui negarent, åλλ' ovdeìs é¿éλeyçev." Schaefer.

3 66

"A Græcis igitur Romani acceperunt sua Suovetaurilia, ut et plerosque deos suos."-Palmer.

As to the ceremonies customary among the Greeks in the taking of oaths, I refer the reader to Article Jusjurandum (Greek) in the Archæ ological Dictionary; which was written by me, but in the second edition has been appropriated (it is to be hoped inadvertently) by the Editor to himself.

the appointed days, so that both in regard to the time and the officiating persons every due solemnity may have been observed. And even then the party who has sworn such an oath is not yet believed, but, in case he should be convicted of untruth, he will carry away the curse of perjury upon his children and his family, and that is all, he will get by it. If his accusation be considered just, and he obtain a conviction for murder, even then he gets no power over the condemned, who for punishment is given up to the laws and to the persons charged with that office: he may behold the condemned suffering the penalty which the law imposes, but nothing further. Such is the duty assigned to the prosecutor: the accused has to take the oath in like manner, but, after he has delivered his first speech, he is at liberty to withdraw, and neither the prosecutor nor the judges nor any persons whatever have authority to prevent him. How comes it to be so, men of Athens ? Because they that made the ordinances originally, whoever they were, whether Heroes or Gods, did not press upon the unfortunate, but humanely, as far as they could with propriety, alleviated their miseries. All these regulations, so fair and so equitable, the framer of the present decree is shown to have infringed; for not a single portion of them is adopted in his decree.

First therefore this one tribunal, its written laws and unwritten usages, have been violated by the decree.

A second tribunal also, the court of Palladium,1 for the trial of involuntary homicide, he supersedes, as I shall show, and infringes the laws which are administered in it. For here the practice is, first for the parties to swear, then to plead, and lastly for the court to decide of which there is

:

1 Of the jurisdiction of these four courts, τὸ ἐπὶ Παλλαδίῳ, τὸ ἐπὶ Δελφινίῳ, τὸ ἐπὶ Πρυτανείῳ, τὸ ἐν Φρεαττοῖ, I shall speak in Appendix VIII. Of their origin some account is given in Pausanias (i. 28), as well as in Harpocration and elsewhere.

The first of them was held in a temple of Pallas, where, according to the story, was deposited the Palladium brought from Troy by Diomed and his followers, who, landing on the coast of Attica, were inadvertently attacked, and some of them slain, by Demophoon and the Athenians. The second was held in a temple of Apollo Delphinius, evidently on account of the protection afforded by the Delphic god to Orestes. The third was held in a room of the, Prytaneum, or city-hall.

The fourth was by the sea-shore in Piræus, and received its name ἀπὸ τοῦ φρέατος, because it was held in a pit.

nothing in this man's decree. If the accused be convicted and found to have done the deed, neither the prosecutor nor any one else has power over him, but only the law. And what does the law command? That one convicted of involuntary homicide shall on certain stated days leave the country by an appointed road, and remain in exile until he has appeased certain of the relatives of the deceased :1 then it permits him to return, not anyhow, but in a particular manner, ordering him to sacrifice and to be purified, and giving some other directions what must be done. Rightly, O men of Athens, does the law prescribe all this. For it is just to make the penalty of unintentional homicide less than that of intentional; and it is right to provide security for leaving the country before banishment; and for the returning exile to make atonement and purify himself by certain ceremonies, and for everything to be under the control of the laws, this and all of it is reasonable. Yet all these arrangements, planned so wisely by the original legislators, the defendant in framing his decree disregarded.

Here then have we two tribunals of high dignity and importance, and usages handed down from time immemorial, which he has impudently overridden.

There is also a third tribunal, one of the most awful sanctity, where a man acknowledges that he killed, but contends that he has done it lawfully. This is the court of Delphinium. It appears to me, men of the jury, that they who originally settled the law upon these subjects inquired in the first instance, whether no homicide could be deemed rightful, or whether a certain kind ought to be so deemed; considering then that Orestes, acknowledging to have killed his mother, gets a tribunal of Gods to try him and is acquitted, they held that some kind of homicide was justifiable; for Gods would certainly not give a wrong yerdict. Having come to that opinion, they defined in precise terms the causes for which it was lawful to kill. Aristocrates however makes no exception, but simply declares that, if any one shall kill Charidemus, (even though justly or as the laws

1 Pabst bis er eine Person aus der Familie des Ermordeten für sich gewonnen hat. Schaefer is inclined to read aidéon, as the middle verb is elsewhere applied to the relatives forgiving the culprit. (See p. 645.) I don't agree with him.

allow,) he must be given up. Now to all actions and words there are two possible predicates, namely of just and unjust. No single action or word can have both of them at the same time; (for how could the same thing be at once just and not just?) but everything before trial is supposed to have one or the other;2 if it appear to have the quality of injustice, it is set down as base, if of justice, as honourable and good. You however attached neither of those conditions to the clause "if any one shall kill;" but having expressed the charge itself indefinitely, and having added immediately after, "that he may be lawfully apprehended,” you have clearly treated this third tribunal and its usages with contempt.

There is a fourth besides these, the court in the Prytaneum, whose jurisdiction is as follows. If a stone or a piece of wood or iron or anything of the kind falls and strikes a man, and we are ignorant who threw it, but know and have in our possession the instrument of death, proceedings are taken against such instruments here. If then it is not right that inanimate and senseless things, when they lie under such a charge, should be left untried, surely it is impious and dreadful, that one who is possibly innocent, but who (assuming him to be guilty) is at all events a human being and gifted by fortune with the same nature as ourselves, should upon such a charge without hearing and judgment be given up to his accusers.

There is yet a fifth tribunal, which he has failed to respect, and I beg you to observe its character. It is that in Phreatto. Here, men of Athens, the law requires a person to take his trial, who has been exiled for involuntary homicide, and, before those who caused his banishment have pardoned him, incurs the charge of wilful murder. And the framer of these several ordinances did not, because it was impossible for the criminal to come to Athens, overlook his case, nor, because he had done some such act before, did he

1 Pabst: Es sind für alle menschliche Thaten und Reden zwei Seiten möglich, eine rechtliche und eine rechtswidrige.

Auger: "Toute action et toute parole sont toujours accompagnées de l'une de ces deux qualités, de la justice et de l'injustice."

2 Pabst: Aber bei Prüfung jeder Sache setzt man voraus, dass dieselbe eine von beiden Seiten habe.

Auger: "On examine laquelle des deux convient à chaque action."