Page images

general laws. And the votes upon the revision of laws shall be taken according to the established legal practice. If any of the existing laws be condemned, the presidents, in whose term of office the condemnation has taken place, shall appoint the last of the three assemblies for the consideration of them and the committee of council, who shall be in office on that assembly-day, are required, immediately after the sacrifice, to put the question concerning the law-revisors, in what manner they shall hold their session, and how their pay is to be provided: and the law-revisors shall be chosen from those who have sworn the Heliastic oath. And if the presidents shall not appoint the assembly, or if the committee of council shall not put the question according as the statute prescribes, every one of the presidents shall forfeit a thousand drachms to Minerva, and every one of the committee shall forfeit forty drachms to Minerva; and an information shall lie against them to the judges, in like manner as when a man holds an office being indebted to the state, and the judges shall bring the parties informed against into court according to law, or they shall lose their promotion to the Areopagus, for putting down the amendment of the laws./ Before the assembly any Athenian that pleases shall write out the laws which he proposes, and expose them before the statues of the heroes, so that, according to the number of the proposed laws, the people may determine what time shall be allowed for the law-revisors: and whosoever proposes a new law shall write it on a white board and expose it before the statues of the heroes every day until the assembly is held. And the people shall, on the eleventh day of the month Hecatombæon, elect five men from the whole body of Athenian citizens, to defend the laws proposed to be repealed before the law-revisors."


All these laws have been established for a long period, men of the jury, and have often proved themselves to be of prac tical advantage, and no man ever questioned their wisdom at which I am not surprised; for they command nothing which is cruel or oppressive or tyrannical, but, on the contrary, prescribe everything to be done in a fair and constitutional manner. In the first place, they give you the power of deciding whether a new law ought to be introduced, or whether the established laws are, in your opinion, suffi

cient. Secondly, if you vote for the introduction of a law, they do not order it to be passed immediately, but appoint the third assembly; and not even in this have they given permission to pass the law, but only to consider on what terms you will appoint the session of the law-revisors. In that interval they require those who wish to introduce the laws to expose them before the statues of the heroes, so that whoever pleases may examine them, and, if he discover anything inexpedient for you, may inform you of it, and oppose it at his leisure. Not one of all these conditions has the defendant Timocrates performed: he neither exposed the law to view, nor gave those that liked the opportunity to read and oppose it, nor waited for any of the periods prescribed in the laws; but when the assembly, in which you voted upon the laws, was the eleventh of Hecatombæon, he brought in his law upon the twelfth, the very next day, (although it was the festival of Saturn, and the council therefore was adjourned,) having, in conjunction with persons who mean no good to you, contrived that law-revisors should sit under a decree, upon a pretence of the Panathenæa. I will read you the decree itself which was passed, to show you that they did all these things by arrangement, and none of them by chance. Take you the decree, and read it to them.


"In the first presidency, to wit, that of the Pandionian tribe, on the eleventh day thereof, Epicrates moved: In order that the sacrifices may be offered, that the ways and means may be sufficient, and whatever is wanting for the Panathenæa may be supplied, let the presidents of the Pandionian tribe impanel law-revisors to-morrow, and let the law-revisors be a thousand and one in number, selected from those who have taken the oath, and let the council be associated with them in the revision."

Observe, in the reading of the decree,1 how artfully the framer of it, under pretext of financial arrangements and the wants of the festival, without adverting to the time prescribed by law, puts in a clause for proceeding with the revision

1 I adhere to the reading of Bekker, notwithstanding that it is disapproved by so many commentators. It is a loose way of saying, "Observe how artfully it appears from the decree that," &c.

to-morrow; assuredly, from no desire to increase the splendour of the festival, (for nothing was omitted or unprovided for,) but in order that this statute, which is now upon its trial, might be passed and become law without any mortal having notice or making opposition. Here is the proof. When the law-revisors were sitting, no law good or bad was brought in by any man concerning the matters specified, the ways and means and the Panathenæa; but concerning matters on which the decree did not require legislation and the laws forbid it, Timocrates, the defendant, passed his law without the least disturbance. The time named in his decree he held to be more binding than the time mentioned in the laws; and, while you were all enjoying a holiday, and though there is a law to do no wrong to one another either in public or in private at such a period, and to transact no business which does not relate to the festival, he did not scruple (as I shall show you) to inflict an injury, not upon a chance individual, but upon the whole commonwealth. Is it not shameful that a man, who knew the statutes, which you have all just heard, to be in force-who knew also of another statute declaring that no decree, even though it be legal, shall be of greater force than a law-should frame and propose to you a law in pursuance of a decree, which itself he knew to have been illegally moved? Is it not cruel, that, when the state has secured us all against the suffering of wrongs or grievances at this period by the institution of a holiday, she should herself have obtained no such security against Timocrates, but have suffered on this very holiday the most grievous wrong ? For how could a private individual more deeply have injured the state, than by overthrowing the laws by which she is governed?/

That the defendant has done none of the things which he was bound to do, and which the laws require, you may know by what I have already said. His offence however does not consist in this only, that he transgressed the time prescribed by the law, and destroyed the possibility of your deliberating and considering about these matters, by proceeding with his legislation during a holiday; but it consists further in this, that he has introduced a statute repugnant to all the existing statutes, as I will show you plainly in a few minutes. Take and read me first this statute, which expressly forbids

the introduction of any repugnant law, and, if such a one be introduced, requires that it should be indicted.1 Read.


“It shall not be lawful to repeal any of the established laws, except at the session of the law-revisors; and then any Athenian that pleases shall be at liberty to repeal a law, proposing another in its stead. And the committee of council shall put the question upon such laws, first upon the established law, whether the people of Athens approve of it or not; and afterwards upon the proposed law. And whichever the law-revisors shall vote in favour of, that one shall be in force. And no one shall be at liberty to propose a law contrary to any of the established laws. And if any one, having repealed any of the established laws, pass another in its stead not expedient for the people of Athens, or contrary to any of the established laws, an indictment shall lie against him, according to the statute provided in case of a person proposing an improper law."


You have heard the statute. Among many wise laws which the state possesses, there is none, I think, which has been framed more admirably than this. Only observe, how just, how favourable to the people its provisions are. forbids the introduction of a law contrary to the existing laws, without repealing the one first established. Why? First, that you may be able to give a just verdict with a safe conscience. For if there were two inconsistent laws, and any

1 The policy of the Athenian lawgiver was not to allow two inconsistent laws to remain together in his code; and there was no such thing among the Athenians as the repealing of a statute by implication. In the multiplicity of our modern Acts of Parliament, it has not unfrequently occurred, that an enactment has been passed at variance with some previous one, of which it makes no mention, or which, at all events, it does not expressly repeal. The rule then is, that, if the negative of the first is necessarily implied, the second operates as a repeal of the first. For example, where a statute imposed a fine of 1007. and three months' imprisonment for seducing artificers, and a subsequent statute inflicted a penalty of 500l. and twelve months' imprisonment for the same offence, it was decided that the former was virtually repealed by the latter. The English courts lean against such constructive repeals, and strive, if possible, to reconcile two apparently conflicting statutes. If the repugnancy however cannot be got over, then the rule prevails, leges posteriores priores contrarias abrogant,

parties came to trial before you, either on a public or a private question, and each of them claimed the verdict, producing a different law, you could not, of course, decide in favour of both; that is impossible: nor could you decide for either one of them with due regard to your oaths; for such decision violates the repugnant law, which is equally valid with the other. Against such a mischief the legislator provided by this clause. But he had a further motive in it. He wished to make you guardians of the laws; for he knew that the other safeguards which he has provided for them there are various ways of eluding. The public advocates, whom you appoint, may be persuaded to hold their tongues. He requires the laws to be exposed to view, that all men may have notice. It may possibly happen that persons who would oppose them remain in ignorance, without some previous notice, while persons who pay no attention to the subject read them. But, it may be said, every man may indict a law, as I have done now. Yes; but, if a man gets rid of the prosecutor, the state is still cheated. What then is the only proper and firm safeguard of the laws? You, the people for no man can deprive you of the power of judging and testing what is right; no man can by deceit or corruption persuade you to pass the worse law instead of the better. On these accounts, the legislator blocks up all the paths of injustice, checking the evil-disposed, and not letting them stir a step. All these wise and righteous enactments Timocrates cancelled and expunged, as far as it lay in his power, and introduced a law contrary, I may say, to all the existing laws, not reading one in comparison with it, not repealing the opposite, not giving you a choice between. them, not performing any other of the legal requisites.


That he has become amenable then to the indictment by having brought in a law repugnant to the existing laws, I imagine you are all convinced. To show you what sort of a law he has introduced, and what sort of laws he has violated, the usher shall first read you the defendant's law, and then the others, with which it is inconsistent. Read.


"In the first presidency, to wit, that of the Pandionian tribe, on the twelfth day thereof, Timocrates moved: If any of the

« EelmineJätka »