16. Antiphon’s Tetralogies
First Tetralogy
I
When a crime is planned by an ordinary person, it is not hard to expose; but to detect and expose criminals who are naturally able, who are men of experience, and who have reached an age when their faculties are at their best, is no easy matter. (2) The enormous risk makes them reflect for a long time on the problem of executing the crime in safety, and they take no steps until they have completely secured themselves against suspicion. With these facts in mind, you must place implicit confidence in any and every indication from probability presented to you. We, on the other hand, who are seeking satisfaction for the murder, are not letting the guilty escape and bringing the innocent into court; (3) we know very well that as the whole city is defiled by the criminal until he is brought to justice, the sin becomes ours and the punishment for your error falls upon us, if our prosecution is misdirected. Thus, as the entire defilement falls upon us, we shall try to show you as conclusively as our knowledge allows that the defendant killed the dead man.
<…> they were found with the clothes (4) as nobody who was exposing his life to a very grave risk would forgo the prize when it was securely within his grasp. Nor again did anyone intoxicated kill him: the murderer’s identity would be known to his boon-companions. Nor again was his death the result of a quarrel; they would not have been quarrelling at the dead of night or in a deserted spot. Nor did the criminal strike the dead man when intending to strike someone else; he would not in that case have killed master and slave together. (5) As all grounds for suspecting that the crime was unpremeditated are removed, it is clear from the circumstances of death themselves that the victim was deliberately murdered. Now who is more likely to have attacked him than a man who had already suffered cruelly at his hands and who was expecting to suffer more cruelly still? That man is the defendant. (6) He was an old enemy of the other, and indicted him on several serious charges without success. On the other hand, he has himself been indicted on charges still more numerous and still more grave, and not once has he been acquitted, with the result that he has lost a good deal of his property. Further, he had recently been indicted by the dead man for embezzling sacred monies, the sum to be recovered being assessed at two talents; he knew himself to be guilty, experience had taught him how powerful his opponent was, and he bore him a grudge for the past; so he naturally plotted his death: he naturally sought protection against his enemy by murdering him. (7) Thirst for revenge made him forget the risk, and the overpowering fear of the ruin which threatened him spurred him to all the more reckless an attack. In taking this step he hoped not only that his guilt would remain undiscovered, but that he would also escape the lawsuit for embezzlement; nobody, he thought, would proceed with the suit, and judgement would go by default; (8) while in the event of his losing his case after all, he considered it better to have revenged himself for his defeat than, like a coward, to be ruined by the indictment without retaliating. And he knew very well that he would lose it, or he would not have thought the present trial the safer alternative.
(9) Such are the motives which drove him to sin as he did. Had there been eyewitnesses in large numbers, we should have produced them in large numbers; but as the dead man’s attendant was alone present, those who heard his statement will give evidence; for he was still alive when picked up, and in reply to our questions stated that the only assailant whom he had recognized was the defendant. Inferences from probability and eyewitnesses have alike proved the defendant’s guilt: so both justice and expediency absolutely forbid you to acquit him. (10) Not only would it be impossible to convict deliberate criminals if they are not to be convicted by eyewitnesses and by such inferences: but it is against all your interests that this polluted wretch should profane the sanctity of the divine precincts by setting foot within them, or pass on his defilement to the innocent by sitting at the same tables as they. It is this that causes dearth and public calamity. (11) And so you must take the avenging of the dead personally; you must pin the defendant’s sins back on himself; you must see that none but he suffers, and that the stain of guilt is removed from the city.
ii
I am not far wrong, I think, in regarding myself as the most unlucky of all people. Others meet with misfortune. They may be buffeted by a tempest; but calm weather returns and they are buffeted no longer. They may fall ill; but they recover their health and are saved. Or some other mishap may overtake them; but it is followed by its opposite which brings relief. (2) With me this is not so. Not only did this man make havoc of my house during his lifetime: but he has caused me distress and anxiety in plenty since his death, even if I escape sentence; for so luckless is my lot that it is not enough to save myself through a god-fearing and an honest life but if I do not also find and convict the murderer, whom the dead man’s avengers cannot find, I shall myself be deemed guilty of murder and suffer an outrageous sentence of death. (3) Now the prosecution allege that it is very difficult to prove my guilt because of my astuteness. Yet in maintaining that my actions themselves prove me to be the criminal, they are assuming me to be a simpleton. For if the bitterness of my feud is a natural ground for your deeming me guilty to-day, it was still more natural for me to foresee before committing the crime that suspicion would settle upon me as it has done. I was more likely to go to the length of stopping anyone else whom I knew to be plotting the murder than deliberately to incur certain suspicion by committing it myself; for if, on the one hand, the crime in itself showed that I was the murderer, I was doomed: while if, on the other hand, I escaped detection, I knew very well that suspicion would fall on me as it has done. (4) My plight is indeed hapless: I am forced not only to defend myself, but to reveal the criminals as well. Still, I must attempt this further task; nothing, it seems, is more relentless than necessity. I can expose the criminals, I may say, only by following the principle used by my accuser, who establishes the innocence of everyone else and then asserts that the circumstances of death in themselves show the murderer to be me. If the apparent innocence of everyone else is to fasten the crime upon me, it is only logical for me to be held guiltless, should others be brought under suspicion. (5) It is not, as the prosecution maintain, unlikely that a man wandering about at the dead of night should be murdered for his clothing; nothing is more likely. The fact that he was not stripped indicates nothing. If the approach of passers-by startled his assailants into quitting him before they had had time to strip him, they showed sense, not madness, in valuing life over gain. (6) Further, he may not in fact have been murdered for his clothing: he may have seen others engaged in some quite different outrage and have been killed by them to prevent his giving information of the crime: who knows? Again, were not those who hated him almost as much as I did—and there were a great many—more likely to have murdered him than I? It was plain to them that suspicion would fall on me; while I knew very well that I should bear the blame for them. (7) Why, moreover, should the evidence of the attendant be allowed any weight? In his terror at the peril in which he stood, there was no likelihood of his recognizing the murderers. On the other hand, it was likely enough that he would obediently confirm any suggestions made by his masters. We distrust the evidence of slaves in general, or we should not torture them; so what justification have you for putting me to death on the evidence of this one? (8) Further, whoever allows probability the force of fact when it testifies to my guilt must on the same principle bear the following in mind as evidence of my innocence: it was more likely that, with an eye to carrying out my plot in safety, I should take the precaution of not being present at the scene of the crime than that the slave should recognize me distinctly just as his throat was being cut. (9) I will now show that, unless I was mad, I must have thought the danger in which I now stand far greater, instead of less, than the danger to be expected from the indictment. If I was convicted on the indictment, I knew that I should be stripped of my property; but I should not lose my life or civic rights. I should still have been alive, still left to enjoy those rights; and even though I should have had to obtain a loan of money from my friends, my fate would not have been the worst possible. On the other hand, if I am found guilty to-day and put to death, my children will inherit from me an insufferable disgrace; if instead I go into exile, I shall become a beggar in a strange land, an old man without a country.
(10) Thus not one of the charges brought against me has any foundation. But even if the probabilities, as distinct from the facts, point to me as the murderer, it is acquittal that I deserve from you far more than anything else: since first, it is clear that if I struck back, it was only because I was being deeply wronged: had that not been so, it would never have been thought likely that I was the murderer: and secondly, it is the murderers, not those accused of murder, whom it is your duty to convict. (11) As I am completely cleared of the charge, it is not I who will profane the sanctity of the gods when I set foot within their precincts, any more than it is I who am sinning against them in urging you to acquit me. It is those who are prosecuting an innocent man like myself, while they let the criminal escape, to whom dearth is due: it is they who deserve in full the penalty which they say should be inflicted upon me, for urging you to become guilty of impiety. (12) If this is the treatment which the prosecution deserve, you must put no faith in them. I myself, on the other hand, as you will see by examining my past life, do not form plots or covet what does not belong to me. On the contrary, I have made several substantial payments to the Treasury, I have more than once served as Trierarch, I have furnished a brilliant chorus, I have often advanced money to friends, and I have frequently paid large sums under guarantees given for others; my wealth has come not from litigation, but from hard work; and I have been a religious and law-abiding man. If my character is such as this, you must not deem me guilty of anything sinful or dishonourable. (13) Were my enemy alive and prosecuting me, I should not be resting content with a defence; I should have shown what a scoundrel he was himself and what scoundrels are those who, while professedly his champions, seek in fact to enrich themselves at my expense over the charge which I am facing. However, more out of decency than in fairness to myself, I shall refrain. Instead, I entreat you, gentlemen, you who are empowered to decide the most critical of issues: take pity on my misfortune and remedy it: do not join my opponents in their attack: do not allow them to make an end of me without regard to justice or the powers above.
iii
It is an outrage to “misfortune” that he should use it to cloak his crime, in the hope of concealing his defilement. Neither does he deserve your “pity”; he did not consult his victim’s wishes in bringing doom upon him: whereas he did consult his own before exposing himself to danger. We proved in our first speech that he is the murderer; we shall now endeavour to show by examination that his defence was unsound.
(2) Assume that the murderers hurried off, leaving their victims before they had stripped them, because they noticed the approach of passers-by. Then even if the persons who came upon them found the master dead, they would have found the slave still conscious, as he was picked up alive and gave evidence. They would have questioned him closely and have informed us who the criminals were: so that the defendant would not have been accused. Or assume, on the other hand, that others, who had been seen by the two committing some similar outrage, had murdered them to keep the matter dark. Then news of that outrage would have been published at the same time as the news of the present murder, and suspicion would have fallen on those concerned in it. (3) Again, how persons whose position was not so serious should have plotted against the dead man sooner than persons who had more to fear, I fail to understand. The fear and injustice of the second were enough to put an end to caution; whereas with the first the risk and disgrace involved, to which their resentment could not blind them, were sufficient to sober the anger in their hearts, even if they had intended to do the deed. (4) The defence are wrong when they say that the evidence of the slave is not to be trusted; where evidence of this sort is concerned, slaves are not tortured: they are given their freedom. It is when they deny a theft or conspire with their masters to keep silence that we believe them to tell the truth only under torture. (5) Again, the probabilities are not in favour of his having been absent from the scene of the crime rather than present at it. In remaining absent he was going to run the same risks as he would run if present, as any of his confederates if caught would have shown that it was he who had originated the plot. And not only that; he was going to dispatch the business on hand less satisfactorily, as not one of the criminals taking part would have felt the same enthusiasm for the deed. (6) Further, he did not believe the danger threatened by the lawsuit to be less serious than that in which he now stands, but much more so, as I will prove to you. Let us assume that his expectations of conviction or acquittal were the same in the one suit as in the other. Now he had no hope of the indictment being dropped as long as his enemy was alive; otherwise, he would not have plotted against his life. But he did not, on the other hand, expect to be involved in the present trial, (7) as he thought that he could commit the murder without being found out. Again, in claiming an acquittal on the ground that he could foresee that he would be suspected, he is arguing falsely. If the defendant, whose position was desperate, could be deterred from violence by the knowledge that suspicion would fall on himself, nobody at all would have planned the crime. Everyone who stood in less danger than he would have been more frightened by the certainty of being suspected than by that danger, and would therefore have been less ready than he to use violence. (8) His contributions to the Treasury and his provision of choruses may be satisfactory evidence of his wealth; but they are anything but evidence of his innocence. It was precisely his fear of losing his wealth which drove him to commit the murder: though an unscrupulous crime, it was to be expected of him. He objects that murderers are not those who were to be expected to commit murder, but those who actually did so. Now he would be quite right, provided that those who did commit it were known to us; but as they are not, proof must be based on what was to be expected: and that shows that the defendant, and the defendant alone, is the murderer. Crimes of this kind are committed in secret, not in front of witnesses.
(9) As he has been proved guilty of the murder so conclusively from his own defence, he is simply asking you to transfer his own defilement to yourselves. We, on the other hand, make no requests: we merely remind you that if neither inferences from probability nor the evidence of witnesses prove the defendant guilty to-day, there remains no means of proving any defendant guilty. (10) As you see, there is no doubt about the circumstances of the murder: suspicion points plainly to the defendant: and the evidence of the slave is to be trusted; so how can you in fairness acquit him? And if you acquit him unfairly, it is not upon us that the dead man’s curse will lie: it is upon you that he will bring disquiet. (11) So with this in mind come to the victim’s aid, punish his murderer, and cleanse the city. Do this, and you will do three beneficial things: you will reduce the number of deliberate criminals; you will increase that of the god-fearing; and you will yourselves be rid of the defilement which rests upon you in the defendant’s name.
iv
See, I have chosen to place myself at the mercy of the misfortune which you have been told that I blame unfairly, and at the mercy of my enemies here; for much as I am alarmed by their wholesale distortion of the facts, I have faith in your judgement and in the true story of my conduct; though if the prosecution deny me even the right of lamenting before you the misfortunes which have beset me, I do not know where else to fly for refuge, (2) so utterly startling—or should I say villainous?—are the methods which are being used to misrepresent me. They pretend that they are prosecuting to avenge a murder; yet they defend all the true suspects, and then assert that I am a murderer because they cannot find the criminal. The fact that they are flatly disregarding their appointed duty shows that their object is not so much to punish the murderer as to have me wrongfully put to death. (3) I myself ought simply to be replying to the evidence of the attendant, for I am not here to inform you of the murderers or prove them guilty: I am answering a charge which has been brought against me. However, in order to make it completely clear that the prosecution have designs upon my life and that no suspicion can attach itself to me, I must, quite unnecessarily, go further.
(4) I ask only that my misfortune, which is being used to discredit me, may turn to good fortune; and I call upon you to acquit and congratulate me rather than condemn and pity me. According to the prosecution, those who came up during the assault were one and all more likely to inquire exactly who the murderers were and carry the news to the victims’ home than to take to their heels and leave them to their fate. (5) But I, for my part, do not believe that there exists a human being so reckless or so brave that, on coming upon men writhing in their death agony in the middle of the night, he would not turn round and run away rather than risk his life by inquiring after the malefactors responsible. Now since the passers-by behaved in a natural manner, you cannot logically continue to treat the footpads who murdered the pair for their clothing as innocent, any more than suspicion can still attach itself to me. (6) As to whether or not proclamation of some other outrage was made at the time of the murder, who knows? Nobody felt called upon to inquire; and as no such proclamation is known, it is quite possible to suppose that the malefactors concerned in such an outrage committed the murder. (7) Why, moreover, should the evidence of the slave be thought more trustworthy than that of free men? Free men are disfranchised and fined, should their evidence be considered false; whereas this slave, who gave us no opportunity of either cross-examining or torturing him—when can he be punished? Nay, when can he be cross-examined? He could make a statement in perfect safety; so it is only natural that he was induced to lie about me by his masters, who are enemies of mine. On the other hand, it would be nothing short of impious were I put to death by you on evidence which was untrustworthy. (8) According to the prosecution, it is harder to believe that I was absent from the scene of the crime than that I was present at it. But I myself, by using not arguments from probability but facts, will prove that I was not present. All the slaves in my possession, male or female, I hand over to you for torture; and if you find that I was not at home in bed that night, or that I left the house, I agree that I am the murderer. The night can be identified, as the murder was committed during the Diipoleia. (9) As regards my wealth, my fears for which are said to have furnished a natural motive for the murder, the facts are precisely the opposite. It is the unfortunate who gain by arbitrary methods, as they expect changes to cause a change in their own sorry plight. It pays the fortunate to safeguard their prosperity by living peaceably, as change turns their good fortune into bad. (10) Again, although the prosecution pretend to base their proof of my guilt on inferences from probability, they assert not that I am the probable, but that I am the actual murderer. Moreover, those inferences have in fact been proved to be in my favour rather than theirs—for not only has the witness for the prosecution been proved untrustworthy, but he cannot be cross-examined. Similarly, I have shown that the presumptions are in my favour and not in favour of the prosecution; and the trail of guilt has been proved to lead not to me, but to those whom the prosecution are treating as innocent. Thus the charges made against me have been shown without exception to be unfounded. But it does not follow that there is no way of convicting criminals, if I am acquitted; it does follow that there is no way of effectively defending persons accused, if I am sentenced.
(11) You see how unjustifiably my accusers are attacking me. Yet notwithstanding the fact that it is they who are endeavouring to have me put to death in so impious a fashion, they maintain that they themselves are guiltless; according to them, it is I who am acting impiously—I, who am urging you to show yourselves god-fearing men. But as I am innocent of all their charges, I adjure you on my own behalf to respect the righteousness of the guiltless, just as on the dead man’s behalf I remind you of his right to vengeance and urge you not to let the guilty escape by punishing the innocent; (12) once I am put to death, no one will continue the search for the criminal. Respect these considerations, and satisfy heaven and justice by acquitting me. Do not wait until remorse proves to you your mistake; remorse in cases such as this has no remedy.
Second Tetralogy
(The subject of the second tetralogy had already been treated by Protagoras, according to Plutarch (Pericl. 36).)
1. Cases in which the facts are agreed upon are settled in advance either by the law or by the decrees of the Assembly, which between them control every branch of civic life. But should matter for dispute occur, it is your task, gentlemen, to give a decision. However, I do not imagine that any dispute will in fact arise between the defendant and myself. My son was struck in the side by a javelin thrown by yonder lad in the gymnasium, and died instantly. (2) I accuse him not of killing my son deliberately, but of killing him by accident—though the loss which I have suffered is not thereby lessened. But if he has not caused the dead boy himself disquiet, he has caused disquiet to the living; and I ask you to pity that dead boy's childless parents: to show your sorrow for his own untimely end: to forbid his slayer to set foot where he is forbidden to set foot by the law: and to refuse to allow him to defile the whole city.
ii
I now see that sheer misfortune and necessity can force those who hate litigation to appear in court and those who love peace to show boldness and generally belie their nature in word and deed; for I myself, who, unless I am sorely mistaken, am very far from finding or wanting to find such a task congenial, have today been forced by sheer misfortune to depart from my habits and appear as defendant in a case in which I found it hard enough to arrive at the exact truth, but which leaves me still more perplexed when I consider how I should present it to you. (2) I am driven by pitiless necessity: and I, like my opponents, gentlemen of the jury, seek refuge in your sympathy. I beg of you: if my arguments appear more subtle than those generally presented to you, do not allow the circumstances already mentioned so to prejudice you against my defence as to make you base your verdict upon apparent fact instead of upon the truth; apparent fact puts the advantage with the clever speaker, but truth with the man who lives in justice and righteousness.
(3) In training my son in those pursuits from which the state derives most benefit I imagined that both of us would be rewarded; but the result has sadly belied my hopes. For the lad—not from insolence or wantonness, but while at javelin-practice in the gymnasium with his fellows—made a hit, it is true, but killed no one, if one considers his true part in the matter: he accidentally incurred the blame for the error of another which affected that other's own person. (4) Had the boy been wounded because the javelin had traveled in his direction outside the area appointed for its flight, we should be left unable to show that we had not caused his death. But he ran into the path of the javelin and placed his person in its way. Hence my son was prevented from hitting the target: while the boy, who moved into the javelin's path, was struck, thereby causing us to be blamed for what we did not do. (5) It was because he ran in front of the javelin that the boy was struck. The lad is therefore accused without just cause, as he did not strike anyone standing clear of the target. At the same time, since it is plain to you that the boy was not struck while standing still, but was struck only after deliberately moving into the path of the javelin, you have still clearer proof that his death was due to an error on his own part. Had he stood still and not run across, he would not have been struck. (6) Both sides are agreed, as you see, that the boy’s death was accidental; so by discovering which of the two was guilty of error, we should prove still more conclusively who killed him. For it is those guilty of error in carrying out an intended act who are responsible for accidents: just as it is those who voluntarily do a thing or allow it to be done to them who are responsible for the effects suffered. (7) Now the lad, on his side, was not guilty of error in respect of anyone: in practicing he was not doing what he was forbidden but what he had been told to do, and he was not standing among those engaged in gymnastics when he threw the javelin, but in his place among the other throwers: nor did he hit the boy because he missed the target and sent his javelin instead at those standing clear. He did everything correctly, as he intended; and thus he was not the cause of any accident, but the victim of one, in that he was prevented from hitting the target. (8) The boy, on the other hand, who wished to run forward, missed the moment at which he could have crossed without being hit, with results which he by no means desired. He was accidentally guilty of an error which affected his own person, and has thus met with a disaster for which he had himself alone to thank. He has punished himself for his error, and is therefore duly requited; not that we rejoice at or approve of it—far from it: we feel both sympathy and sorrow. It is thus the dead boy who proves to have been guilty of error; so the act which caused his death is to be attributed not to us, but to him, the party guilty of error: just as the recoiling of its effects upon the agent not only absolves us from blame, but has caused the agent to be punished as he deserved directly his error was committed. (9) Furthermore, our innocence is attested by the law upon which my accuser relies in charging me with the boy's death, the law which forbids the taking of life whether wrongfully or otherwise. For the fact that the victim himself was guilty of error clears the defendant here of having killed him by accident: while his accuser does not even suggest that he killed him deliberately. Thus he is cleared of both charges, of killing the boy by accident and of killing him deliberately. (10) Not only do the true facts of the case and the law under which he is being prosecuted attest my son’s innocence; but our manner of life is equally far from justifying such harsh treatment of us. Not only will it be an outrage, if my son is to bear the blame for errors which he did not commit; but I myself, who am equally innocent, though assuredly not more so, will be visited with woes many times more bitter. Once my son is lost, I shall pass the rest of my days longing for death: once I am left childless, mine will be a life within the tomb.
(11) Have pity, then, on this child, the victim of calamity, though guilty of no error: and have pity on me, an old man in distress, stricken thus suddenly with sorrow. Do not bring a miserable fate upon us by condemning us: but show that you fear God by acquitting us. The dead boy is not unavenged for the calamity which befell him: nor ought we ourselves to share the responsibility for errors due to our accusers. (12) So respect the righteousness which the facts before you have revealed: respect justice: and acquit us as godly and just men should. Do not bring upon a father and a son, two of the most wretched of beings, sorrows which the years of neither can well bear.
iii
That sheer necessity can force all men to belie their nature in both word and deed is a fact of which the defendant seems to me to be giving very real proof. Whereas in the past he was the last to show impudence or audacity, his very misfortune has today forced him to say things which I for one would never have expected of him. (2) I, in my great folly, imagined that he would not reply; otherwise I would not have deprived myself of half of my opportunities as prosecutor by making only one speech instead of two; and he, but for his audacity, would not have had the twofold advantage over me of using one speech to answer the one speech for the prosecution and making his accusations when they could not be answered. (3) With his great advantage over us in the matter of the speeches, and with the far greater one which his methods have given him in addition, it is outrageous that the accused should entreat you to listen kindly to his defence. I myself, on the other hand, far from causing any harm, have been the victim of cruel affliction, and am today being treated still more cruelly. It is as one who seeks more than a pretended refuge in your sympathy that I make my own request of you. You who take vengeance for unrighteous deeds and determine wherein is righteousness, do not, I beg of you, let worthless subtleties of speech induce you to disregard plain facts and treat the truth as false; (4) for such subtleties result in a tale more plausible than true, whereas the truth, when told, will be less guileful and therefore less convincing. My faith in justice, then, enables me to despise his defense. Yet my distrust of the pitiless will of fate makes me fear that I may not only lose the benefit of my child, but that I may see him convicted by you of taking his own life in addition. (5) For the defendant has had the audacity and shamelessness to say that he who struck and killed neither wounded nor killed, whereas he who neither touched the javelin nor had any intention of throwing it missed every other point on earth and every other person, and pierced his own side with the javelin. Why, I should myself sound more convincing, I think, were I accusing the lad of willful murder, than does the defendant in claiming that the lad neither struck nor killed. (6) My son was bidden at that moment by the master in charge, who was taking the javelins of the throwers into his keeping, to pick them up; but thanks to the wantonness of him who cast it, he was greeted by yonder lad’s cruel weapon; though guilty of error in respect of no single person, he died a piteous death. The lad, on the other hand, who mistook the moment at which the javelins were being picked up, was not prevented from making a hit. To my bitter sorrow, he struck a target; and although he did not kill my son deliberately, there are better grounds for maintaining that he did than for asserting that he neither struck nor killed. (7) Although it was by accident that they killed my son, the effects were the same as those of willful murder. Yet they deny that they killed him at all, and even maintain that they are not amenable to the law which forbids the taking of life whether wrongfully or otherwise. But who is rather the killer? To whom is the boy’s death in fact to be attributed? To the spectators or the masters in charge—whom no one accuses at all? The circumstances of my son's death are no mystery: to me, for one, they are only too clear; and I maintain that the law is right when it orders the punishment of those who have taken life; not only is it just that he who killed without meaning to kill should suffer punishment which he did not mean to incur; but it would also be an injustice to the victim, whose injury is not lessened by being accidental, were he deprived of vengeance. (8) Nor does he deserve acquittal because of his misfortune in committing the error which he did. If, on the one hand, the misfortune is not due to any dispensation of heaven, then, as an error pure and simple, it is right that it should prove disastrous to him who was guilty of it; and if, on the other hand, a defilement from heaven has fallen upon the slayer by reason of some act of sin, then it is wrong for us to impede the visitation of God. (9) They also maintained that it is wrong for those who have lived as honorably as they to be treated with severity. But what of us? Should we be treated aright, if we are punished with death when our life has been as praiseworthy as theirs? When he argues that he is not guilty of error and claims that the consequences must be borne by those who are, instead of being diverted to the innocent, he is pleading our case for us. Not only would it be an injustice to my son, who was killed by yonder lad, though guilty of error in respect of no one, were he deprived of vengeance; but it will be an outrage, if I myself, who am even more guiltless than he, fail to obtain from you the recompense which the law assigns me. (10) Further, the defence’s own statements show that the accused cannot be acquitted either of error or of accidentally taking life, but that he and my son are equally guilty of both; I will prove this. Assume that because my son moved into the path of the javelin instead of standing still, he deserves to be treated as his own slayer. Then the lad is not free from blame either; he is only innocent if he was standing still and not throwing his javelin when the boy was killed. The boy's death was therefore due to both of them. Now the boy, whose error affected his own person, has punished himself even more harshly than that error warranted: for he has lost his life. So what right has his accomplice, who joined him in committing his unfortunate error, to escape unpunished?
(11) The accused have themselves proved by their defense that the lad had a share in the slaying. So, as just and god-fearing men, you cannot acquit him. If we, who have lost our life through the defendants’ error, were found guilty of having taken it ourselves, it would be an act not of righteousness but of wickedness on your part: and if those responsible for our death were not prohibited from setting foot where they should not, it would be an outrage against heaven: you would have acquitted persons stained with guilt. As the whole of the defilement, upon whomsoever it rests, is extended to you, you must take the greatest care. If you find him guilty and prohibit him from setting foot where the law forbids him to set foot, you will be free of the charges brought today; but if you acquit him, you become liable to them. (12) So satisfy the claims of heaven and the laws by taking him and punishing him. Do not share his blood-guilt yourselves: but let me, the parent whom he has sent to a living death, at least appear to have had my sorrow lightened.
iv
While it is only to be expected that the preoccupation of my opponent with his speech for the prosecution should prevent his understanding my defense, the same is not true of yourselves. You should bear in mind that while we, the interested parties, take a biased view of the case, each naturally thinking that his own version of it is fair, your duty is to consider the facts conscientiously; [and so you must give your attention to me as much as you did to him]: as it is in what is said that the true facts are to be sought. (2) For my part, if I have told any falsehoods, I am content that you should treat the truth which I have spoken as itself a piece of equally dishonest pleading. On the other hand, if my arguments have been honest, but close and subtle, it is not I who used them, but he whose conduct made them necessary, upon whom the displeasure which they have caused should properly fall.
(3) I would have you understand to begin with that it requires not mere assertion, but proof, to show that someone has killed someone else. Now our accuser agrees with us as to how the accident happened, but disagrees as to the person responsible; yet it is only from what happened that that person can be determined. (4) He complains bitterly, because, according to him, it is a slur upon his son’s memory that he should have been proved a slayer when he neither threw the javelin nor had any intention of doing so. That complaint is not an answer to my arguments. I am not maintaining that his son threw the javelin or struck himself. I am maintaining that since he moved within range of the javelin, his death was due not to the lad, but to himself; for he was not killed standing in his place. As this running across was his undoing, it follows that if it was at his master’s summons that he ran across, the master would be the person responsible for his death; but if he moved into the way of his own accord, his death was due to himself. (5) Before proceeding to any further argument, I wish to show still more clearly which of the two was responsible for the accident. The lad no more missed the target than any of those practising with him: nor has he rendered himself guilty of any of the acts with which he is charged owing to error on his own part. On the other hand, the boy did not do the same as the other onlookers; he moved into the javelin’s path. And this is clear proof that it was through his own error that he met with a disaster which those who stood still did not. The thrower would not have been guilty of an error in any respect, had no one moved into the path of his spear: while the boy would not have been hit, had he remained in his place among the onlookers. (6) Further, my son was not more concerned in the boy’s death than any one of those throwing javelins with him, as I will show. If it was owing to the fact that my son was throwing a javelin that the boy was killed, then all those practising with him must share in the guilt of the deed, as it was not owing to their failure to throw that they did not strike him, but owing to the fact that he did not move into the path of the javelin of any one of them. Similarly the young man, who was no more guilty of error than they, would not have hit the boy any more than they did, had the boy stood still with the onlookers. (7) Again, not only was the boy guilty of the error committed; he was also to blame for the failure to take due precautions. My son saw no one running across, so how could he have taken precautions against striking anyone? The boy, on the other hand, upon seeing the throwers, might easily have guarded against running across, as he was quite at liberty to remain standing still. (8) The law which they quote is a praiseworthy one; it is right and fair that it should visit those who have killed without meaning to do so with chastisement which they did not mean to incur. But the lad is not guilty of error; and it would therefore be unjust that he should suffer for him who is. It is enough that he should bear the consequences of his own errors. On the other hand, the boy, who perished through his own error, punished himself as soon as he had committed that error. And as the slayer has been punished, the slaying has not gone unavenged. (9) The slayer has paid the penalty; so it is not by acquitting us, but by condemning us that you will leave a burden upon your consciences. The boy, who is bearing the consequence of his own error, will leave behind him nothing that calls for atonement from anyone; but if my son, who is innocent, is put to death, the conscience of those who have condemned him will be more heavily burdened than ever. If the arguments put forward prove the dead boy his own slayer, it is not we who have stated them whom he has to thank, but the fact that the accident happened as it did. (10) Since examination proves beyond doubt that the boy was his own slayer, the law absolves us from blame, and condemns him who was guilty. See, then, that we are not plunged into woes which we do not deserve, and that you yourselves do not defy the powers above by a verdict succoring my opponents in their misfortunes. Remember, as righteousness and justice require you to do, that the accident was caused by him who moved into the javelin’s path. Remember, and acquit us; for we are not guilty of his death.
Third Tetralogy
i
It is very rightly laid down that in cases of murder prosecutors must take especial care to observe justice in making their charge and presenting their evidence: they must neither let the guilty escape nor bring the innocent to trial. (2) For when God was minded to create the human race and brought the first of us into being, he gave us the earth and sea to sustain and serve us, in order that we might not die for want of the necessaries of life before old age brought us our end. Such being the value placed upon our life by God, whoever unlawfully slays his fellow both sins against the gods and confounds the ordinances of man. (3) For the victim, robbed of the gifts bestowed by God upon him, naturally leaves behind him the angry spirits of vengeance, God’s instruments of punishment, spirits which they who prosecute and testify without giving heed to justice bring into their own homes, defiling them with the defilement of another, because they share in the sin of him who did the deed. (4) And similarly, should we, the avengers of the dead, accuse innocent persons because of some private grudge, not only will our failure to avenge the murdered man cause us to be haunted by dread demons to whom the dead will turn for justice, but by wrongfully causing the death of the innocent we are liable to the penalties prescribed for murder, and because we have persuaded you to break the law, the responsibility for your mistake also becomes ours. (5) For my part, my fear of such consequences has led me to bring the true sinner before you, and thus the stain of none of the charges which I am making rests upon me; and if you yourselves give that attention to the trial which the considerations I have put before you demand, and inflict upon the criminal a punishment proportionate to the injury which he has done, you will cleanse the entire city of its defilement. (6) Had he killed his victim accidentally, he would have deserved some measure of mercy. But he wantonly committed a brutal assault upon an old man when in his cups; he struck him and throttled him until he robbed him of life. So for killing him he is liable to penalties prescribed for murder: and for violating every right to respect enjoyed by the aged he deserves to suffer in full the punishment usual in such cases. (7) Thus the law rightly hands him over to you for punishment; and you have listened to the witnesses who were present during his drunken assault. It is your duty to take vengeance for the injury which he so lawlessly inflicted: to punish such brutal violence as harshly as the harm which it has caused requires: to deprive him in his turn of a life which was used to plot another’s death.
ii
The fact that their speech was brief does not surprise me: because for them the danger is, not that they may come to some harm, but that they may fail to gratify their animosity by sending me to a death which I do not deserve. On the other hand, that they should want to treat the present matter, in which the victim had himself to blame more than me, as a case of the greatest gravity, gives me, I think, some excuse for indignation. By resorting to violence as he did and making a drunken assault upon a man far more in control of himself than he, he was responsible not only for the disaster which befell himself, but for the accusation which has been brought against me. (2) In my opinion, the prosecution are setting both God and man at defiance in accusing me. He was the aggressor; and even if I had used steel or stone or wood to beat him off, I was acting within my rights; an aggressor deserves to be answered with, not the same, but more and worse than he gave. Actually, when he struck me with his fists, I used my own to retaliate for the blows which I received. Was that unjustified? (3) Well and good. “But,” he will object, “the law which forbids the taking of life whether justifiably or not shows you to be liable to the penalty prescribed for murder; for the man is dead.” I repeat for a second and a third time that I did not kill him. Had the man died on the spot from the blows which he received, his death would have been due to me, not but what I would have been justified—an aggressor deserves to be answered with not the same, but more and worse than he gave; (4) —but in fact he died several days later, after being placed under an incompetent physician. His death was due to the incompetence of the physician, and not to the blows which he received. The other physicians warned him that though he was not beyond cure, he would die if he followed this particular treatment. Thanks to your advice, he did die, and thereby caused an outrageous charge to be brought against myself. (5) Further, the very law under which I am being accused attests my innocence; it lays down that the guilt of a murder shall rest upon that party which acted from design. Now what designs could I have on his life which he did not also have on mine? I resisted him with his own weapons, and returned blow for blow; so it is clear that I only had the designs upon his life which he had on mine. (6) Furthermore, if anyone thinks that his death was the result of the blows which he received and that therefore I am his murderer, let him set against that fact that it was the aggressor who was the cause of those blows, and that they therefore point to him, not to me, as the person responsible for his death; I would not have defended myself unless I had been struck by him. Thus my innocence is attested both by the law and by the fact that my opponent was the aggressor; in no way am I his murderer. As to the dead man, if his death was due to mischance, he had himself to thank for that mischance: for it consisted in his taking the offensive. Similarly, if his death was due to a loss of self-control it was through his own loss of self-control that he perished: for he was not in his right mind when he struck me.
(7) I have now proved that I am unjustly accused. But I wish to prove also that my accusers are themselves exposed to all the charges which they are bringing against me. By accusing me of murder when I am free from guilt, and by robbing me of the life which God bestowed upon me, they are sinning against God by seeking to compass my death wrongfully, they are confounding the laws of man and becoming my murderers; and by urging you to commit the sin of taking my life, they are murdering your consciences also.
(8) May God visit them with the punishment which they deserve. You on your side must look to your own interests and be more disposed to acquit than to condemn me. If I am acquitted unjustly, if I escape because you have not been properly informed of the facts, then it is he who failed to inform you, not you, whom I shall cause to be visited by the spirit who is seeking vengeance for the dead. But if I am wrongfully condemned by you, then it is upon you, and not upon my accuser, that I shall turn the wrath of the avenging demons. (9) In this knowledge, make the prosecution bear the consequences of their sin; cleanse yourselves of guilt: and acquit me as righteousness and justice require you to do. Thus may all of us citizens best avoid defilement.
iii
I am not surprised that the defendant, who has committed so outrageous a crime, should speak as he has acted; just as I pardon you, who are desirous of discovering the facts exactly, for tolerating such utterances from his lips as deserve to be greeted with derision. Thus, he admits that he gave the man the blows which caused his death; yet he not only denies that he himself is the dead man’s murderer, but asserts, alive and well though he is, that we, who are seeking vengeance for the victim, are his own murderers. And I wish to show that the remainder of his defense is of a similar character.
(2) To begin with, he said that even if the man did die as a result of the blows, he did not kill him: because it is the aggressor who is to blame for what happens: it is he whom the law condemns; and the aggressor was the dead man. First, let me tell you that young men are more likely to be the aggressors and make a drunken assault than old. The young are incited by their natural arrogance, their full vigor, and the unaccustomed effects of wine to give free play to anger: whereas old men are sobered by their experience of drunken excesses, by the weakness of age, and by their fear of the strength of the young. (3) Further, it was not with the same, but with vastly different weapons that the accused withstood him, as the facts themselves show. The one used hands which were in the fullness of their strength, and with them he slew; whereas the other defended himself but feebly against a stronger man, and died without leaving any mark of that defense behind him. Moreover, if it was with his hands and not with steel that the defendant slew, then the fact that his hands are more a part of himself than is steel makes him so much the more a murderer. (4) He further dared to assert that he who struck the first blow, even though he did not slay, is more truly the murderer than he who killed; for it is to the aggressor’s willful act that the death was due, he says. But I maintain the very opposite. If our hands carry out the intentions of each of us, he who struck without killing was the willful author of the blow alone: the willful author of the death was he who struck and killed: for it was as the result of an intentional act on the part of the defendant that the man was killed. Again, while the victim suffered the ill-effect of the mischance, it is the striker who suffered the mischance itself; for the one met his death as the result of the other’s act, so that it was not through his own mistake, but through the mistake of the man who struck him, that he was killed; whereas the other did more than he meant to do, and he had only himself to blame for the mischance whereby he killed a man whom he did not mean to slay. (5) I am <not> surprised that, in alleging the man’s death to have been due to the physician, he should assign responsibility for it to us, upon whose advice it was that he received medical attention; for had we failed to place him under a physician, the defendant would assuredly have maintained that his death was due to neglect. But even if his death was due to the physician, which it was not, the physician is not his murderer, because the law absolves him from blame. On the other hand, as it was only owing to the blows given by the defendant that we placed the dead man under medical care at all, can the murderer be anyone save him who forced us to call in the physician?
(6) Although it has been proved so clearly and so completely that he killed the dead man, his impudence and shamelessness are such that he is not content with defending his own act of wickedness: he actually accuses us, who are seeking expiation of the defilement which rests upon him, of acting like unscrupulous scoundrels. (7) Assertions as outrageous as this, or even more so, befit one guilty of such a crime as he. We, on our side, have clearly established how the death took place: we have shown that there is no disagreement about which blow caused it: and we have proved that the law fixes the guilt of the murder upon him who gave that blow. So in the name of the victim we charge you to appease the wrath of the spirits of vengeance by putting the defendant to death, and thereby cleanse the whole city of its defilement.
iv
The defendant, not because he has judged himself guilty, but because he was alarmed by the vehemence the prosecution, has withdrawn. As to us, his friends, we are discharging our sacred duty to him more fitly by aiding him while he is alive than by aiding him after he is dead. Admittedly, he himself would have pleaded his own case best; but since the present course appeared the safer, it remains for us, to whom his loss would be a very bitter grief, to defend him.
(2) To my mind, it is with the aggressor that the blame for the deed rests. Now the presumptions from which the prosecution argues that the defendant was the aggressor are unreasonable. If brutal violence on the part of the young and self-control on the part of the old were as natural as seeing with the eyes and hearing with the ears, then there would be no need for you to sit in judgement; the young would stand condemned by their mere age. In fact, however, many young men are self-controlled, and many old men are violent in their cups; and so the presumption which they furnish favors the defense no less than the prosecution. (3) As the presumption supports us as much as it does the dead man, the balance is in our favor; for according to the witnesses, it was he who was the aggressor. This being so, the defendant is cleared of all the other charges brought against him as well. For once it is argued that, because it was only the blow given by the striker which obliged you to seek medical attention at all, the murderer is the striker rather than the person immediately responsible for the man’s death, it follows that the murderer was he who struck the very first blow of all: because it was he who compelled both his adversary to strike back in self-defense and the victim struck to go to the physician. It would be outrageous, were the defendant, who was neither slayer nor aggressor, to be held a murderer in place of the true slayer and the true aggressor. (4) Nor again is the intention to kill to be attributed to the accused rather than to his accuser. If it had been the case that, whereas he who struck the first blow had meant not to kill, but to strike, he who was defending himself had meant to kill, then it would have been this last who was guilty of the intention to kill. As it was, he who was defending himself likewise intended to strike, not to kill; but he committed an error, and struck where he did not mean to strike. (5) He was thus admittedly the willful author of the blow; how can he have killed willfully, when he struck otherwise than he intended? Further, it is with the aggressor rather than with him who was defending himself that the responsibility for the error itself rests. The one was seeking to retaliate for the blows which he was receiving, when he committed his error: he was being forced to act by his attacker; whereas with the other, it was his own lack of self-control which caused him to give and receive the blows which he did: and so, since he is responsible both for his own error and for his victim's, he deserves the name of murderer. (6) Again, his defense was not more vigorous than the attack made upon him, but much less so: as I will show. The one was truculent, drunken, and violent; he took the offensive throughout, and was never on the defensive at all. The other was seeking to avoid blows and repel him; the blows which he received, he received from no choice of his own and the blows which he gave were given in defense of himself against the aggressor, and much less vigorously than that aggressor deserved, because his only object was to avoid the hurt which was being done to him; he did not take the offensive at all. (7) Even supposing that his defense was more vigorous than the attack made upon him, because there was more vigor in his hands, you cannot justly condemn him. Heavy penalties are invariably provided for the aggressor: whereas no penalty is ever prescribed for him who defends himself. (8) The objection that the taking of life, whether justifiably or not, is forbidden, has been answered; it was not to the blows, but to the physician, that the man’s death was due, as the witnesses state in their testimony. Further, it is the aggressor, and not he who was defending himself, who was responsible for the accident. The one gave and received the blows which he did from no choice of his own, and therefore the accident in which he had a part was not of his own causing. The other did what he did of his own free will, and it was by his own actions that he brought the accident upon himself; hence he had himself to blame for the mischance whereby he committed his error.
(9) It has been shown, then, that not one of the charges made concerns the defendant; and even if both parties are thought equally responsible alike for the actual crime and for the mischance which led to it, and it is decided from the arguments put forward that there is no more reason for acquitting the defendant than for condemning him, he still has a right to be acquitted rather than condemned. Not only is it unjust that his accuser should secure his conviction without clearly showing that he has been wronged: but it is a sin that the accused should be sentenced, if the charges made against him have not been proved conclusively. (10) As the defendant has been cleared so completely of the charges made, we lay upon you in his name a more righteous behest than did our opponents: in seeking to punish the murderer, do not put him who is blameless to death. The one who died because of <the physician> is no less a cause of divine wrath for the guilty, whereas the defendant, if he dies unjustly, will cause the defilement brought upon his slayers by the spirits of vengeance to become twofold. (11) Hold that defilement in fear: and consider your duty to absolve him who is guiltless. Him upon whom the stain of blood rests you may let time reveal, even as you may leave his punishment to his victim’s kin. It is thus that you will best serve justice and the will of heaven.