Against Aristocrates (26-30)

Moreover he argued that before the trial is held such expressions as if a man kill, if a man rob a temple, if a man commit treason, and the like, are merely phrases of accusation: they become definitions of crime only after trial and conviction. To a formula of accusation he thought it proper to attach not punishment, but only trial; and therefore, when enacting that, if one man killed another, the Council should take cognizance, he did not lay down what should be done to the culprit if found guilty.

So much for the legislator; but what of the author of the decree? If any man kill Charidemus, he says. So he defines the injury in the same phrase, if any man kill, as the legislator; but the sequel is not the same. He struck out submission to trial, and made the culprit liable to immediate seizure; he passed by the tribunal appointed by law, and handed over to the accusers, to be dealt with as they chose, a man untried, a man whose guilt is not yet proven.

When they have got him, they are to be allowed to torture him, or maltreat him, or extort money from him. Yet the next ensuing statute directly and distinctly forbids such treatment even of men convicted and proved to be murderers. Read to the jury the statute that follows.

Statute.

It shall be lawful to kill[*] murderers in our own territory, or to arrest them as directed on the first turning-table,[*] but not to maltreat or amerce them, on penalty of a payment of twice the damage inflicted. The Archons, according to their several jurisdictions, shall bring cases into court; for any man who so desires and the court of Heliaea shall adjudicate.

You have heard the law, men of Athens; and I beg you to examine it and observe how admirably and most righteously it is framed by the legislator. He uses the term murderers; but in the first place you see that by murderer he means a man found guilty by verdict; for no man comes under that designation until he has been convicted and found guilty.

That is made clear both in the earlier statute and in this one; for in the former, after the words if any man kill, the legislator directs the Council to take cognizance, and here, after designating the man as the murderer, he has directed what is to be done to him. That is to say, when it is a question of accusation, he has ordered a trial, but when the culprit, being found guilty, is liable to this designation, he has specified the penalty. Therefore he should be speaking only of persons found guilty. Well, what does he direct? That it shall be lawful to kill them and to put them under arrest.