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Chapter vi

Should God’s priest be permitted to possess a portion of the republic?
Should only injury, loss and murder be judged as crimes?
In a well-regulated commonwealth should there be a supreme court to which appeal may be made?
Are the sons of those who die in war for their nation to be supported at public expense?
When a better law is devised should the previous one be abolished?

ERE we have a new act and a new scene, in which Hippodamus of Miletus first speaks about the commonwealth. This Hippodamus, as Aristotle tells us in this place, was the son of Euryphon, a man so devoted to the pursuit of exquisite delights that by some he was considered to lead a dainty and artificial manner of life. Pay attention to what he says, for now he comes into the theater with gold cicadas in his head and dressed in a sumptuous costume, and in a loud voice, and with an imperious manner, offers the eight laws he himself legislated. Lo, he is present, and now that the audience has grown silent, you will hear him speaking himself. “First, I decree that the commonwealth should consist of ten thousand men and be divided into farmers, artisans, and soldiers. Second, I divide the land of the commonwealth into three portions, namely sacred, public, and private, and I wish these to be distributed and shared among priests, defenders of the nation, and farmers. Third, I think that only these three things, injury, loss, and murder, should come before a court. Fourth, I have established a single supreme court in our commonwealth, to which appeal may be made. Fifth, I deny judges the right to a private law practice, lest corruption occur, and, lest there be any suspicion of corruption, I bid them hand down their sentences individually, written upon tablets. Sixth, I adjudge that inventors of things of great utility in the commonwealth should be accorded honor and reward. Seventh, I am of the opinion that the sons of those fallen in war for the republic should be supported at public expense. Finally, I commit and commend to magistrates elected by the people care of the affairs of the public, of aliens, and those which pertain to orphans.” When these things are heard in due order, as if breaking down the restraining door Aristotle furiously rushes onto the field and seeks his adversary, as the lion does its prey. But after he has learned his adversary has taken to his heels in terror, he tears at the tables of laws which Hippodamus left behind in his flight, not otherwise than raging Ajax tore up Ulysses’ innocent lambs.
2. And first he greatly criticized this in the suggested division, that Hippodamus took weapons away from the farmers, weapons and fields from the artisans. “If you pass your law thus, Hippodamus,” he says, “you appear to have made farmers and artisans slaves of the solders, denied them a share in the commonwealth, deprived them of all of hope of honors and magistracies, and finally to have driven them to a hatred of the commonwealth. If you can tear yourself away from your barber and your tailor, you appear to be devising everything unjust and perilous that exists in the commonwealth.” In his second division of landholding, namely into three parts, he rather vehemently objects that Hippodamus entirely fails to make distinguish priests and soldiers (to whom he has granted portions of the land) from farmers concerning the tillage of the soil, since (as he says) he does not reveal who will cultivate the priests’ and soldiers’ fields. If they themselves are obliged to do this, then little distinction is made between them and the farmers . But if others have this responsibility, then it is necessary that a fourth part of the commonwealth, distinct from the other three, be assigned this task. In the text the Philosopher seems to say nothing about injury, loss and murder, and of the courts assigned assigned to judge these crimes, nor does he about about that supreme tribunal or court to which appeal of other courts’ decisions is to be made. But, having passed on from these subjects, he thinks that Hippodamus’ law about judges handing down their sentences on tablets is wholly to be abolished. For he says it is wrongly legislated that the opinion of the judges should be divided in when a straightforward case is tried: for this is to make the judge an arbitrator, and the judgment only an arbitration. For this is permissible in a compromise or arbitration, but should not be in trials and courts, as in this way the judgment of cases in the commonwealth will be most ambiguous and confused, nay, turbulent and seditious, as in the text he proves with a self-evident example of a debtor and a plaintiff. The Philosopher calls the law about the discoverers of new things in the commonwealth and their reward plausible and specious, but if it is closely examined we shall discover that it is loaded with dangers and harms, over and above the fact that it could not be accomplished without great contention and trouble that each inventor of useful things could be repaid with great honors, and there is a risk lest some innovation or at least a change of affairs occur. Aristotle seems either to criticize lightly or to approve the law about publicly supporting the children of those who have died in war, and also that one about the popular election of magistrates. But, since in connection with the sixth law about inventors of novelties, innovation or a change of affairs is held suspect, this opportunely raises the question, whether when a new law is invented the old one is to be nullified. First Aristotle argues the point on both sides, and teaches by comparisons with the arts and with barbaric laws that this is permissible, but at the end of this chapter he concludes with the contrary opinion, which is that this is impermissible. The reason is that, when laws are frequently changed, citizens are unaccustomed to obey the precepts and instructions of princes. For the frequent quashing of laws weakens the habit of compliance, nor is their as great an advantage in changing the law as there is a harm in the pursuit of novelty: for, just as the former intends the good of the commonwealth, so the latter gives birth to a scorpion’s egg, that is, to the seed of sedition and disobedience. Wherefore to substitute new laws for old is to take away the power, force and majesty of the laws.
3. So much for a summary of the things handled in this chapter. Now it remains for me to dispute in order the questions proposed. The first is, should some portion of the republic be afforded to priests. You are religious and pious, Hippodamus, for wanting one portion of the land to be sacred and consecrated to God’s ministers. In this you shun atheism, because you have a care for God. But (oh the sorrow!) into what age of the world, into what morality have we fallen? Where is Numa Pompilius, who at Rome founded so many colleges of augurs? Where is is Constantine, who erected so many sacred lecture-halls?; Where is Theodosius, who granted so many rents, where is Justinian, who granted so many privileges? But I draw a veil over my colors, lest in these tablets many men see black marks against their names. I am indicating those men who, enriched with the spoils of the Church and their sacrileges, have plundered the livelihood of priests, the income of the church, the food of paupers, widows and orphans, the light of the Truth from the ignorant, the anchor of salvation from those in despair. But why am I surprised? Religion has given birth to wealth, and the daughter has devoured her mother. But since in this place I am searching for the reasons and causes of things, I shall attempt to prove with some arguments the thing I am treating. The first is taken from ancient custom and the example of our forefathers, who always had so much care for religion that they supplied priests with all necessary things, and indeed conceded parts of the republic, and those no small ones. Thus the Egyptians, as Hermes Trismegistus said, thus the Spartans, as Diogenes Laertius said, thus the Romans, as Livy said, thus almost each and every nation, as the universal historians write, have done. The second argument is sought from the property and the reward of virtue, namely that the most ample goods of fortune are owed to those who are most zealous for virtue, priests are most zealous for virtue, therefore the most ample goods of fortune are owed to priests. The proposition is that of Aristotle in Book I of the Ethics, where he proves that wealth, honors, and the other good things of fortune are subject and subservient to the goods of the mind, and they ought only be assigned as a mark of virtue and piety. The assumption is well known. For priests are separated and segregated from the common run of the people that, caught by no birdlime of transitory things, bedaubed by no pitch of turpitude, they serve God more freely and piously both on their own behalf and that of other men. The third argument I shall use is derived from a comparison of the lesser with the greater, namely, if soldiers and artisans, who do their work with the sword, the mallet and the hoe, may claim a part of the commonwealth, how much more so should priests, who only deal in sacred things, abound with external things granted them so they might enjoy the quietude of contemplation? Furthermore, inasmuch as God is the granter of all the good things which are conceded Man for the use of his life, man (as Pythagoras says) would be the most ungrateful of all animals if he made no attempt to repay God. But God uses these things for the increase of piety by means of His ministers, for the relief of poverty, and for promoting six hundred other good things. Therefore we must agree that, if we wish to be grateful to God, we should not deny God’s ministers a part of the commonwealth. Here another argument can be drawn from divine testimony, where God enjoins and prescribes that the sons of Israel should give the Levites much out of their possessions. Finally, we may thus reason from the end of the commonwealth, that the republic cannot be truly happy, if within it such men are not treated honorably, who would draw its citizens from transitory things to eternal, from human things to divine, from the waves of doomed pleasure to the harbor of sempiternal salvation.
4. But I see my discourse is flowing on forever, so now I come to another question, which is whether only injury, loss and murder should be subject to judgment. I shall deal with the matter in a word. All wrongdoings brought to the attention of a judge are either voluntary or involuntary. The former are simple wrongdoings, such as the commission of a theft, of adultery, or mixed, such as blinding one’s conscience with the fear of suffering a greater evil. And these involuntary wrongdoings are again divided into violent and unwilling by the Philosopher in Book V of the Ethics, of which some are called open and others clandestine. But all those things are contained under these three, and therefore all wrongdoings which are subject to judgment fall under these three headings. So it is to be observed that in this place I am demonstrating these headings generically, and not dividing these genera into species. For if they are voluntary, they involve injury, but if they are involuntary they involve loss or murder. Furthermore, all crimes in the commonwealth pertain either to the harm of citizens, which is injury, to the deprivation of property, which is loss, or to the destruction of persons, which is murder. Therefore Hippodamus sagely appointed three courts in the commonwealth, in which all the contentions and controversies of citizens might be distinctly defined
5. But I hasten to the third question, which is should there be a supreme court in the commonwealth to which appeal may be made from the others? Among the many things which are nobly taught by Hippodamus in this place, this strikes me as particularly useful, that in a well-regulated commonwealth he established a single supreme court, to which, as to a sacred anchor and asylum, we may take refuge from corrupt, unlearned, or ill-disposed judges. To this court he appointed the most grave, just and prudent old men, who would come to the bench without display, to the trying of cases without fraud, to the passing of sentences without emotion or mental ardor. For (as the philosophers teach) four things ennoble a judgment: the gravity of the judge, the authority of the law, the judge’s experience with controversy, and the constancy of his mind. The gravity of the judge, since otherwise the suspicion of levity works harm; the authority of the law, since otherwise the suspicion of corruption works harm; experience with controversy, lest his ignorance do injury; the constancy of his mind, so that no affection, but rather justice alone will prevail in his judgment. But what am I doing? In this place the supreme court is under discussion. For my part, I believe nobody will resist Hippodamus’ view; but if you do resist, thus I dispute with you from the standpoint of proportion. Just as in a kingdom there is one person simply superior to the rest, therefore it should agreed that there should be a single court which may counterbalance such great authority, in a kingdom there is one person simply superior to the rest, therefore it should be agreed there should be a single court which possesses supreme majesty. What in this demonstration do you deny? If the major premise, watch what you are doing. For you deny the golden scepter (that is, supreme authority) to kings: for tell me how the king can be called supreme among judges, if he does not have a most powerful court in which he may either revoke or modify the corrupt sentences of other judges? Furthermore, on the basis of the harms which follow in the commonwealth in the absence of this court, I argue thus. In a well-regulated commonwealth, all losses and injuries inflicted by any man should be indemnified, but this cannot be done without a supreme court, therefore it is necessary that a supreme court be granted in any well-regulated commonwealth. I prove the assumption, since subjects suffer losses and injury at the hands of principal men, indeed often at the hands of kings themselves, and these cannot be removed if a supreme court not be granted in which kings may of their own free will hear the voice of the commonwealth, and also reverently obey the laws they themselves have legislated. At this point I urge no argument drawn from divine law, a although with express words it proves the point now being defended. For thus the Lord speaks to Moses: Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens: And let them judge the people at all seasons: and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge. It is also relevant that Paul appealed from Judge Festus to Caesar. Furthermore, what do you respond to this argument, which is drawn from comparisons in this way? In Man (who is like a small commonwealth and a microcosm) there is a court of the mind, which is called inferior, and one of the conscience, which is called superior. In the former reason sits on the bench, but with affection, but in the latter sits only justice as the umpire; from the former there is an appeal, if the affection of the former works harm, but from the latter there is never any appeal. With these things posited and conceded, it follows that in a great commonwealth there should be a like reasoning about courts and judgments. I do not allege examples of the best republics tending to prove this same thing by their experience and law. I hold this argument in last place, as if it were my reinforcements. Nothing should be lacking in a flourishing republic which renders the commonwealth honorable, a very august court of leading men renders the commonwealth honorable, therefore a very august court of leading men should not be wanting. The major premise is agreed. The minor is proven, since nothing in the commonwealth is deemed more august, more honorable, than that Caesar, supreme in his majesty, be, as it were, speaking law and living justice.
6. Now follows the fourth question in its place and order, which is whether the sons of those who die in a just war are to be supported at public expense? Once the Athenians religiously observed this law of Hippodamus, as did the Macedonians, the Spartans, and other most ancient nation, and would we would follow their footsteps in this business! Then indeed so many vagabonds, so many cripples, so many wretches and beggars would not be transported from the battlefield to the gallows. But it is to be deplored that this practice has grown outdated, this most tender care for soldiers lies extinct. But since in this place we should examine, not what is happening, but what should happen, here I urge with a few arguments that it is a necessary thing in a happy commonwealth, that the sons of those killed in battle on behalf the commonwealth should be supported at the commonwealth’s expense. As Aristotle teaches, a warlike death is the object of bravery. Why so? Not that they who die in battle may lose the palm of victory, but so that they may retain an enduring name among posterity. But how can this come to pass, if the children of brave men are to experience misery? If the sons of Hector and Achilles become beggars? Furthermore, since the nation lives by the death of its citizens dying on its behalf, it would indeed be ungrateful if it should allow the sons of its defenders to die of want. Wherefore if the commonwealth should wish to be grateful, or to appear so, it is necessary that it not allow the children of its champions to be oppressed by misery. Then men attack the enemy with doubled spirits and, as they say, redoubled strength, who come to military service with this pair of alternatives in mind. “Let it be so, if we survive, the nation will cherish us; if we should die, it will support our families. So let us fight bravely, let us eagerly assault the enemy, for honor preserves our life, love of our posterity preserves our peace of mind, and thrusts back the enemy.” Who does not think this law of Hippodamus worthy of approval?
7. Now at length I come to the final thesis of this chapter, which is whether upon the invention of a better law a previous one is to be abolished? As the Philosopher says at the foot of this chapter, this question ought to be reserved to some other, more appropriate, time. But since arguments pro and con are adduced here, it will not be beside the point to press my seal upon the tablet and advance an interpretation of Aristotle’s opinion. According to the philosophers, law is threefold: divine, human, and natural. Divine law is the eternal, unchangeable reason by which God, the author of all things, guides, disposes, and moderates each and every thing to good things according to His providence and will. Natural law is a certain participation in this divine law, tending with order towards nature’s good, which cannot be accustomed to be otherwise than it is. Finally, human law is a rational ordering for the common good, published and promulgated by him who possesses the care of the commonwealth. Its conditions are that it must be just, possible, in accordance with nature and national custom, fit for the place and the time, useful, self-evident, and prescribed, not for private convenience, but for the use and good of the entire commonwealth. In this passage, Aristotle disputes about this but not the former two, for they are fixed, constant and immutable, since God’s will is their first cause. For nature is God’s handmaiden, He gave powers to her, having been created second, but God is not changed, nor is nature deceived. But Man, whom He created third, often errs, having a blind mind, infirm reason, and a doubtful and ever-uncertain mind. Therefore human law, in a certain sense, can be changed and cannot be changed: it can be changed, if a great necessity for change is pressing, it cannot be changed if from the change a storm of sedition would ensue. That it can be changed for due cause I first prove thus. The principle of human law is mutable, therefore the law itself can be changed. The antecedent is agreed, since human will is the cause of the law, but human will is doubtful and infirm. 2. This same thing is proven by an argument from similarity, since what happens in the arts can also happen in laws, in the arts change is often necessary (as in medicine and gymnastics), therefore it is sometimes permissible to change laws. The minor is proven in the text by the example of very foolish laws about wearing swords and purchasing wives, which were bequeathed the Greeks from ancient times by their ancestors. For it would be foolish (as is taught here) to admit the laws of primitive men, when they, as if they were sons of the earth, having no practice or experience of things, had ineptly established them. To them I add an argument from necessity, that a change of mores may be the cause for a change in the laws, the mores of the commonwealth are often changed, therefore the laws to may be changed. But here somebody may say that at the end of this chapter Aristotle teaches the contrary, and that he offers some responses to these arguments. To him I say that the Philosopher is not contending that laws are altogether and absolutely immutable, but that he wants change in the laws to occur as rarely as possible and not without the greatest and most just causes. His reason is that human laws derive their cause from the sovereign and their strength from custom, but that the frequent change of laws causes the sovereign to be held in contempt and the established uses of the commonwealth to be violated. It therefore follows that alteration in the laws should be most infrequent. Wherefore, even if reason prescribes that, when better ones are discovered, older laws should be erased from the tablets of the commonwealth, if within the commonwealth there is no consensus about this matter, I say it is better to put up with the scar than to create a new and lethal wound. For no matter how better men’s second thoughts are than their first ones, they are not to be adopted immediately and rashly. For, just as the custom of ancient times is not not readily admitted, so the use of innovations is not readily approved. Aye, every alteration of things in the commonwealth is full of peril, full of storms. If, a better law having been invented, you crave to scratch out an old one, you should conduct yourself cautiously, gradually, and prudently. For, just as in the body a change in diet is a bad thing, be it sudden, so in the commonwealth is the changing of a law, be it ill considered.

THE DISTINCTION OF THE FIRST QUESTION
Should priests have some part of the republic?

8. OBJECTION Priests are not part of the commonwealth, therefore they should not possess a part of it. The antecedent is proven, since their live consists exclusively in contemplation, but the commonwealth consists solely of men involved in action, hence political rather than contemplative men are called citizens. The argument holds, since the possessions of the commonwealth are owed only to its citizens.
RESPONSE Although amongst the Israelites certain cities and possessions were by divine law destined for the perpetual use of the Levites, which their sons claimed by hereditary right, not what the form of the commonwealth has changed we should think these are owed, not as legacies and patrimonies, but as most ample faculties and benefices, and that they are thus owed that priests may hold them as their own by law of the commonwealth without any controversy and trouble. For that which is once consecrated to God should not be turned to human use. Therefore I reply, that although priests are not citizens in every political forum, nevertheless they are, according to the Philosopher, better than the citizens, and deserve a part of the commonwealth since on behalf of the commonwealth they keep vigil in piety’s citadel.
OBJECTION True contemplation of divine things and possession of human things are opposed to each other, therefore priests who are bound to the contemplation of divine things should not be enslaved by the possession of human things. The antecedent is proven, since contemplation requires constant quiet, but the possession of things is a troublesome business, and much distracts and disturbs the human mind.
RESPONSE Possession and contemplation, taken simply, are not opposed to each other, it is concern about possession that is opposed to the quiet of contemplation. Therefore contemplative men hold possessions in one way, political men in another: the former in a way that they are not overly concerned with things of this world, but the latter that by accumulating things they may be helpful and generous to their posterity; just as without care the former rejoice in things owed to them, so the latter rejoice in things amassed by their sweat and toil.

THE DISTINCTION OF THE SECOND QUESTION
Should only injury, loss and murder be judged as crimes?

 

9. OBJECTION There are many moral faults which are not contained under these headings, therefo re this distribution of wrongdoings is inept. The antecedent is proven by fear and rashness, which are opposed to bravery, prodigality and avarice, which are opposed to liberality, and other extremes which are opposed to other means, since none of these can be called an injury, a loss, or a homicide.
RESPONSE Concerning moral faults, two things are considered, the condition and the act: the condition pertains to the depravation of the will, the act requires the sentence of a judge. In respect to condition, these moral faults do not fall within the purview of our three tribunals, but in respect to the act, they do: for example, an act of greed is conjoined with an injury, an act of prodigality with a loss.
OBJECTION Gross ignorance is defined as an offense, but gross ignorance is not spoken of as an injury, a loss, or as murder, therefore there is some civil offense which is not contained under these headings.
RESPONSE Gross ignorance is considered in two ways, either absolutely per se, and thus is properly not comprehended under these headings, or comparatively in respect to the crime committed because of ignorance, and thus it is so comprehended.

THE DISTINCTION OF THE THIRD QUESTION
Should there be a supreme court to which appeal may be made?

10. OBJECTION Whatever is a cause of contempt should not be admitted in the commonwealth, a supreme court is a cause of contempt, therefore it should not be admitted in the commonwealth. The major premise is agreed. The minor is proven, because if it is discovered that it is permissible to lodge an appeal, inferior judges will be held in contempt.
RESPONSE Appeal is not permitted in any case at all, but only when unfair censure oppresses an innocent man. Therefore it is not a cause of fear rather than contempt, tranquility rather than contention. For this asylum lies open only for those who are wounded by the heavy-handedness of judges.
OBJECTION It often happens that kings inflict injuries and losses on their subjects, but if a supreme court were to be constituted, there would be no appeal to it from the actions of kings. Therefore something of this kind is vainly established for the salvation of citizens. The major premise is obvious. The minor is confirmed, since kings are not bound by the laws, and have no other man in the kingdom for their judge or moderator, for they are themselves supreme.
RESPONSE If subjects are furiously wounded by the king with injuries or losses, they are able to appeal to this court. For although this court is held by royal authority, its power is nevertheless derived from the utility of the commonwealth. For kings are sworn for the salvation, not the ruination of their citizens.

THE DISTINCTION OF THE FOURTH QUESTION
Are the sons of those who die in war for the people to be supported at public expense?

 

11. OBJECTION It is the duty of every man to fight and die for his nation, therefore nobody should claim such a great benefit in exchange for his merit. The antecedent is obvious, because the nation is the common parent of all men. The minor is proven, since to fight or die for the nation ought to be regarded as an obligation, not a merit.
RESPONSE This argument is answered in two ways, either that the nation should have a regard, not for the merit of the fighter, but for the magnificence and honor of the commonwealth, or that those who die in war should deserve this very thing. For if the commonwealth cannot restore life, which is nature’s greatest benefit, equity demands that it appear grateful to the surviving family. Furthermore, since merit depends not on a deed (which is limited in duration) but on will, and since the individual citizen’s will for preserving the commonwealth is infinite, I think that the care for his posterity can be asked and required, not as a favor, but as something merited.
OBJECTION Nothing should occur in in the commonwealth which can inflict danger and loss upon it: the support of those who die in war inflicts danger and loss upon the commonwealth, therefore it should not occur. The minor premise is proven, since the sons of these men will be idle because of hope of so great a benefit, and in their support (if their number should be all but boundless) will exhaust the resources of the commonwealth.
RESPONSE The city is neither ungrateful nor improvident, but confers this benefit upon them so it may escape and avoid every danger. For it does not provide them this reward so we may live without any pursuit or care, so that we may live according to order and the laws, and imitatively follow in our parents’ footsteps.

THE DISTINCTION OF THE FIFTH QUESTION
When a better law is devised should the previous one be abolished?

12. OBJECTION Aristotle defends the proposition that laws are not to be changed, therefore the contrary view is ill defended.
RESPONSE He does not defend the proposition that the laws are entirely not to be changed, but he shows it is a very dangerous business to quash old laws and substitute new ones in their place. If the evils which result from an ancient law are not extremely great, it should not be removed immediately, lest innovation excite civil disturbance.
OBJECTION Our ancestors once established many quite absurd and barbarous laws, which we are compelled to change out of necessity. Therefore it is not dangerous to abrogate old laws. The antecedent is Aristotle’s in the text.
RESPONSE I concede that absurd and barbarous laws ought indeed to be abolished, but gradually and with the consent of the people. For otherwise the bad custom of the people would work more harm than the new substitution of a good law.

THE CHAPTER’S DOUBTFUL QUESTION
Is it better for a judge to render an oral decision than a written one in court?

13. You are quite suspicious, or rather superstitious, Hippodamus, for wanting to deny Solon and Lycurgus a voice and a tongue. Aristides is not corrupted in the courtroom, in giving a judgment Scaevola is not overcome by affections. So it is better to deliver a sentence in Senate or courtroom orally, to create terror of the judge, rather than in writing, out of fear of corruption. This scrutiny of yours nourishes suspicion, to hand down a sentence with voting-pebbles nourishes sedition. The truth is naked, justice speaks openly. The law does not lack a voice, so why do you bid the interpreter of the law hold his silence in the courtroom? But I am only making pinpricks. The living voice of the judge instills greater fear than a written tablet, therefore in court it is better to deliver a sentence with a living voice. Furthermore, the truth does not seek out corners to hide in, so why does equity (truth’s companion) require uncertain voting-pebbles? Furthermore the judge is the public impersonation of the commonwealth, the court in which he sits is justice’s oracle, the law is the norm and moderator of the courtroom. But these things all require the judge’s holy, solemn voice, and therefore they should not be transacted under a pall of silence in Senate or courtroom. Furthermore, a furtive tablet makes for an uncertain decision rather than a sure and definite judgment, so it follows that the clear voice of the judge is of necessity required for defining the commonwealth’s contentions. Here I omit to mention the practice of all well-regulated commonwealths, which always observe the praiseworthy custom that judges pronounce sentence openly, not secretly.

THE DISTINCTION

 

14. OBJECTION For two reasons, written decisions appear better, both because they inflict a greater fear on judges lest unfair judges are shamed in the eyes of posterity, and since written decisions have greater deliberation than oral ones. Therefore it follows that it is better to hand down sentence in writing rather than orally in judgments.
RESPONSE These two considerations scarcely weaken the weight and moment of the arguments just now adduced. For the fear of the people is more requisite for procuring reverence for the law than the fear of the judge. Furthermore, I do not know whether more odium resides in an unfair oral decision than in an unjust written one. Finally, I deny that greater deliberation is required for a written decision than for an oral one, since deliberation is something that applies to many men consulting about doubtful matters, and this Hippodamus has denied to judges.
OBJECTION The commonwealth’s important business is conducted by scrutiny and in writing, such as (in many places) the elections of magistrates, therefore it is not absurd for judgment to be delivered in the same way.
RESPONSE The rationale of judgment and election are unalike. For in a judgment one should hear the voice of a single judge, in an election that of the commonwealth. So, since the multitude speaks confusedly, it is preferable that an election be conducted in writing, for the sake of avoiding confusion. But a judgment, which depends on one man or at most a few, is much better delivered openly than secretly, orally than in writing. 

Chapter vii

In the commonwealth should slaves be treated with greater indulgence or severity?
Is it safer to elect wealthy men than paupers as magistrates?
Should a magistrate be obliged to submit an account of his term in office?
Can a man be compelled to accept a magistracy?

NCOURAGED by his victory over a few philosophers, our Hector rushes more confidently against an entire throng. No longer does he thunder against Socrates and Plato, no more against Phales and Hippodamus, but having conquered these men he thunders against great cities. He urges the Spartans, the Cretans, the Carthaginians and other nations from peace to war, from their ramparts to arms. And since of all nations the Spartans were deemed most excellent for wisdom and fortitude, he is eager to come to grips and fight with them in the first battle-line. So with loud voice he summons them to combat, and criticizes and casts aspersions on their commonwealth for their many blemishes, concluding that their laws are inept, their modes of organization perverse, their magistrates unjust, their morals dissolute, their customs unfair, and, in sum, that their entire scheme of administration is ill-advised. All these accusations are so clear and lucid in the text that I should seem to be adding beams of light to the sun if I were to employ a lengthier rodomontade. So I will reduce everything embraced in this combat to fixed headings, and handle in greater detail the questions proposed in the order of their occurrence. To summarize, in this tract Aristotle criticizes ten things, the slavery of the Spartans, their license of life, their division of property, their magistracies, their senatorial dignity, their kingship, messes, naval command, arrangement of laws, and lack of money.
2. So after proposing two things at the beginning of his refutation, the one that by examining administration of other commonwealths we industriously inquire which is best founded by laws, the other that we ask what is established by custom, he comes to the subject I am now handling, whether in the commonwealth slaves should be treated with greater indulgence or severity. This first conclusion of his is this. It is futile to introduce slaves in a republic, and neglect a law by which they might be compelled to obedience, but thus the Spartans maintained their slaves, therefore they are rightly to be criticizes for this. The major premise is proven, since, in absent a law by which they might be compelled, slaves have a proclivity for sedition, and in times of the commonwealth’s adversity readily turn against it. The minor premise is agreed according to the examples of the Helots, who often conspired against the Spartans themselves, and the Penestrae, who often did so against the Thessalians. For if neighbors are hostile (as the Argives, Messenians and Arcadians were to the Spartans, and the Achaeans, the Perraebi and the Magnesians to the Thessalians) slaves are most readily enticed to scheme to encompass their masters’ destruction and to seek the hands of their nation’s enemies in friendship. For, just as the freeborn character seeks liberty, so the servile character seeks license. Therefore that maxim the Philosopher uses is most true, namely that it is a matter of cardinal importance to devise a law by which you may constrain your slaves in their duty; for if you deal with them gently, they live petulantly and dissolutely, but if you deal with them more harshly, they set cruel traps for their masters. But, at least in my opinion it is preferable to oppress them with a heavier yoke than, as they say, to bestow a wooden sword upon them. I prove this from the nature of slavery, from a similarity, from an example, from the practice of statesmanlike princes, and from the useless result, or rather the peril, that arises if this is not done. From the nature of slavery, which requires that slaves be subject to the power and government of their masters, which cannot conveniently occur if they do not sometimes feel the steel of severity, or rather if they do not constantly dread Draconian law, written in blood. That proverb surely is true, familiarity breeds contempt, severity breeds reverence. From a similarity, since, just as beasts cannot be tamed if they do not fear the lash, so slaves are rendered stubborn if they do not bear the yoke. From the example of the Scythians, who came home after a long absence and found their slaves in rebellion, who are said to have overcome them by whips rather than words, cudgels rather than swords. From the practice of statesmanlike princes, who once established by laws that slaves be compelled to do their duty by fear rather than mildness. Thus Roman Caesars once long retained barbarous nations, thus British kings once long retained neighboring nations, thus once wise prices long retained slaves readily provoked to sedition in their duty. From danger, since without the bridle the perverse nature of the slave tends to audacity, his audacity to sedition, his sedition to the downfall of the commonwealth. Wisely that man said, Nothing is fiercer than a miserable man when he rises to the top. Set full sail while the waves are raging, it will be miraculous if your ship does not sink. The commonwealth in which chattel rule is not safe. One should therefore handle slaves like slaves, not so that they will wax insolent, their reins being held slack, but that, the reigns pulled good and tight, they will live dutifully and moderately.
3. This chapter’s second conclusion is that by which the Spartans’ legislator is criticized for introducing no law in that commonwealth for binding women to decorum of life and to chastity. For, as Pompeius Trogus relates, when for ten continual years the Spartans were away from hearth and home at the siege of Messenia because their women had been debauched at a banquet of the Messenians, their women lived to disgracefully and wantonly that it would not be a wonder if, as if despairing of their candor and honesty, passed no law about them at all. But the Philosopher proves this was done ill-advisedly, and for this reason. The city that has a multitude of women in a bad condition is ill-regulated in the half of its whole, at Sparta the multitude of women is in a bad condition, therefore Sparta is ill-regulated in the half of its whole. Experience teaches this proposition, because, as soon as Venus’ window is open, Mars-like gentlemen become helpless and unarmed, and rush more furiously to sleep with Venus than to fight and struggle with the enemy. Furthermore, for this reason riches are sought more eagerly, not so that every man might live better, but so he might possess his Venus. But why am I accusing Sparta here? Would that other commonwealths would not be captivated by this sweet poison! Diana lives in the forest, Minerva goes into seclusion, but Lais and her ilk shine, placed in Corinth’s high towers. Demosthenes abandoned Athena to lay eye on this Lais, Antony abandoned Rome to see Cleopatra. The former refused to purchase repentance at such a high price, the other despaired out of wretched love. What am I to say? The softness of this sex is to be restrained, or else the commonwealth’s senility will ensue. But you will say such a gentle dove should not submit her neck to the yoke. You will be gracious by saying that Woman lacks bile, but this is a myth. Now I come to the third conclusion, which is about the unfair and unequal division of property. For amongst the Spartans some men possessed ample family estates, but others most meager ones, whence it came about that the city lived wretchedly, fallen into the hands of a few. For, even if their lawmaker had forbidden the selling of patrimonies, he nevertheless erred in that he allowed them by law to bequeath property and leave it by testament to any man in the commonwealth they wished. Hence, Aristotle says, is the source of the transfer of land and property, hence the oppression of paupers, hence the license of women and the dissolution of their morality. But Aristotle makes himself plain. Therefore my discourse hastens on to the fourth thing he refutes. In this place the Philosopher disputes about the Ephorate, that is about the government over young men in training, and criticizes it because these magistrates are created out of the common people. His argument runs as follows. What is dangerous for the republic should not occur in the commonwealth, it is dangerous to elect Ephors or magistrates from the common people, therefore it should not occur. In the text the assumption is proven in two ways, that paupers gain control of the commonwealth for their own financial advantage, and that it is to be feared lest in their rush to the helm of the republic they transform it from an aristocracy into a democracy.
4. But here you must pay attention, diligent reader, for within this conclusion is contained a second question, whether wealthy men are more safely elected to magistracies than are paupers. “What, Aristotle, in your eyes is poverty a reason why a magistracy should be denied Fabricius or Aristides? Do you think only the sons of the gods are to be admitted to the Palace of the Sun? Would you have blind fortune shine brighter than virtue in its authority? Or do you now place true honor exclusively in wealth? But what am I doing? I see what you are teaching: I suppose you do not want paupers to be altogether excluded from magistracies (for elsewhere you teach the contrary), but, if I am not mistaken, you would prefer rich man to poor in choosing magistrates. If this is what you teach, I ask your reasons.” I say this, and prove it by four arguments. First, since it is probable that rich men can be swayed less by money or affections than can paupers. Second, since rich men usually have more experience of affairs. Third, because they conduct themselves more splendidly and honorably in the commonwealth. Last, because, being affluent in resources, they live much more liberally and magnificently. I say this, not because I wish every avenue to magistracy to be closed to honest poverty, but because, in accordance with the dictate of prudence, in a well-regulated polity it is far better advised to entrust the globe of the commonwealth to honest rich men than to paupers, albeit they are good men. For the administration of the commonwealth consists, not just in the contemplation of virtue, but also in the activity which wealth demands. The fifth thing Aristotle criticizes is the Spartans’ senate, in which he marks five faults and flaws. The first is that their senators are perpetual. The second is that no account of their service is demanded. The third is that they are held in suspicion even by their legislator. The fourth is that their election is conducted in an almost childlike way. The fifth is that it is permitted any man to seek and canvass for a magistracy.
5. From these things certain questions are engendered and arise which I shall now discuss in their place and order. The first is whether an account of service can be required and demanded of magistrates. I affirm that one should be required, and this by arguments from opposites, from a greater, from a similar, and from proportion and end. From opposites, since, granted that a magistrate should never be compelled to offer up an account, there will be a fear lest the sources of the commonwealth run dry, with the resources of the treasury exhausted, and lest the magistrates themselves, receiving money, be deflected from their duty, prudence, and right judgment. From a greater, since, if kings and men of consular rank are obliged to observe laws they themselves have instituted when they have inflicted loss or injury on their citizens, how much much more lesser magistrates should be compelled to provide an account of their service in a well-regulated commonwealth! From a similar, since, just as the lesser powers and faculties of the mind are obliged to subscribe to the government of reason and give it an account of their activities, if they are not to be rebels and renegades, so lesser magistrates, who are like the powers of a single mind, are bound to give an account of their offices to the men highest in power, if they are not to be corrupt and seditious citizens. From proportion, inasmuch as, making the assumption that civil magistracies and honors are like certain stars that outshine the others, it is to be agreed that, if they do not shine, their rays should be cut off and they be haled into Jove’s court. Let them be accused of negligence, and, if their offense be great, let them be condemned. The reason is that their privilege deserves to lose the power that has been granted it, which it is abusing. How can this be accomplished, if the magistrate is not obliged to submit an account of his office? Finally from the end, since thus order in electing the magistrate will be observed, and the tinder and strife of ambition will be wholly removed. For once citizens understand they are going to submit an account of their dignity, they will not be so inflamed for office-hunting by love of self-enhancement, as they will be deterred by fear of submitting an account, lest they conduct themselves amiss in office. Finally that which is criticized in the Spartans’ senate is a mistake, that they offer their magistracies, as it were, for sale, when (as Aristotle shows here) they should have compelled good men lacking in all ambition to hold magistracies.
6. From this is created the final doubtful issue I am treating in this chapter, namely whether someone can be compelled to occupy a magistracy. Indeed you look wisely to the interest of good men, Aristotle, and even more wisely to that of the commonwealth. For how blessed will the administration of the republic be in which good men are dragged to the benches of dignity! Nowadays (good God!) how many men like Clodius are borne to the courtroom, how many men like Cataline to the consulate, how many men like Sardanapalus to the throne all over the world? You are talking about dragging good men to a magistracy? You should say to the mill. For The color that was white is now white’s opposite. Good men are simpletons, nay, entirely fools, unschooled and ignorant of affairs. In the commonwealth’s citadel should be politicians for whom (as Machiavelli says) the hope is that they appear to be good men rather than be such. But as in this business of what should properly be the case, I shall follow the right counsel of the philosophers, not that of men who live evil lives. And so I think that good men should be compelled to assume magistracies. This is demanded by the dignity of virtue, by the utility of the commonwealth, which is happy then when good men reign, by the welfare of the citizens, who are improved by the example of good men and readily obey their government, by the constitution of the laws, which ever bid the insignia of virtue be conceded to good men. If you say that this rightly proves that good men indeed should be elected to magistracies, but not compelled, I reply that it urges not only that they be elected, but, if they be too difficult or bashful, they be more vigorously stimulated by force of law. For, just as nature bids that the part be compelled to undergo danger rather than the whole perish, so justice requires that good men, who are parts of the commonwealth, submit to a perilous magistracy rather than the republic experience shipwreck. The remaining things which fall under Aristotle’s censure are the kingship, messes, command of the navy, arrangement of laws, and poverty of the treasury. The kingdom, since Spartan kings, descended from the family of the Heraclidae, ruled by hereditary right, whereas Aristotle thought it would be better advised to esteem a man as king because of his accomplishments and the endowments of his mind. He criticizes their messes because poor men no less than rich were required to contribute to them. He rebukes the command of their navy, because their nauarchus (i. e., their admiral) was nothing other than a perpetual tyrant. He called the arrangement of their laws into question, since Sparta wrote all its laws with an eye to nothing other than military glory and virtue, as if no other virtues than fortitude flourished. Finally, he vituperates the poverty of their treasury, since if the public money ran out, it would be necessary that the republic (albeit it was wealthy in lands) to be violently shaken by the enemy’s invasions.

THE DISTINCTION OF THE FIRST QUESTION
Should slaves be treated with greater indulgence or severity?

 

7. OBJECTION Government based on power is weaker than that based on bonds of amity, therefore government over slaves should be more mild and merciful. The antecedent is proven, since men are bound to us by kindness and mercy.
RESPONSE Discipline exercised upon a slave does not prove a domination of savagery and cruelty. In a master’s government severity can be united and joined with mildness’, discipline with mercy. Yet I do mean this, that slaves are better governed by the steel of severity than by excessive indulgence.
OPPOSITION We are called human because of our humanity, therefore we should incline more towards humanity than severity.
RESPONSE We do not depart from our humanity if we follow the rule and dictate of reason, and reason demands that slaves be rather sharply prodded to do their duty, since otherwise their recalcitrant nature is not overcome.

THE DISTINCTION OF THE SECOND QUESTION
Is it safer to elect wealthy men than paupers as magistrates?

8. OBJECTION Every occasion of evils in the republic is to be avoided, the opulence of many men is an occasion of evils, therefore it is to be avoided. These things being granted, it follows that paupers (who are less able to work harm) rather than the wealthy should be elected to magistracies. The minor premise is agreed, since riches often make men haughty, seditious, and tyrannical, and forbid the exercise of virtue more than does good poverty.
RESPONSE Opulence is not an occasion of greed, but rather human concupiscence is, nor in the holding of a magistracy does such a crowd of evils attend upon opulence as upon poverty. For the wealthy can become prodigal, but paupers can become avaricious and tyrannical. Furthermore, since a magistrate’s life ought to be liberal, splendid and magnificent, nothing is more absurd than to elect to a magistracy a man who is helpless and needy, who has no experience in liberality and magnificence, a man who, when he gives gold to others scarcely has a head of garlic for himself.
OBJECTION Wealth is by no means to be preferred to virtue, but to neglect a poor but earnest man and only admit a rich one is to prefer wealth to virtue, and therefore this should in no way occur.
RESPONSE Honest poverty is not being held in contempt, indeed it is often to be admitted to the helm of state. In this place I am inquiring whether, everything else being equal, a rich man is to be elected rather than a pauper. Aristotle rules in favor of the rich man, since he can distribute the rewards of virtue better than a needy one.
OBJECTION It is to be hoped that in a well-regulated commonwealth superior men will hold the magistracies, if you look at the goods of the mind, paupers are often superior to the wealthy, therefore it is to be hoped that paupers be elevated to magistracies more than rich men. The minor premise is agreed, since paupers are captivated by idleness and the seduction of the pleasures less frequently than the wealthy.
RESPONSE It is to be marked that in an election it is not the good of the man but the good of the commonwealth that needs to be considered. Therefore those who are less good simply are often to be preferred over their superiors, for in an election we are accustomed to consider the virtue of office rather than the virtue of the mind. The wealthy man, therefore, who tends more to the utility of the republic should be placed in a superior position. For, just as sometimes God freely concedes His bounties to men less than wholly good for the use of the Church, thus the helm of state is given to men less than perfect in every respect for the use of the commonwealth.

THE DISTINCTION OF THE THIRD QUESTION
Should a magistrate be obliged to submit an account of his term in office?

9. OBJECTION It is servile to be compelled, a magistrate is not a slave, therefore he should not be compelled. The major premise is proven, since compulsion argues slavery, and gives birth to contempt of authority.
RESPONSE It is one thing to compel somebody (such as a magistrate) to do his duty by law, and another to compel somebody (such as a slave) by force. A magistrate is a public personage of the commonwealth, who when invited ought to provide the commonwealth with an account of how he has spent public goods, for these public goods belong to the commonwealth, not the magistrate.
OBJECTION The magistrate is a moderator of the law, therefore he is not subject to law. Which having been conceded, a magistrate is under no compulsion of the law.
RESPONSE He is a moderator of the law, but not so that he may live lawlessly, and therefore, in order that the commonwealth not be weakened, it is rightly decreed that the magistrate must submit an account of his office.

THE DISTINCTION OF THE FOURTH QUESTION
Can someone be compelled to assume a magistracy?

 

10. OBJECTION Human free will cannot be compelled, therefore nobody who is not willing is compelled to assume a magistracy.
RESPONSE Although human free will cannot be compelled simply and absolutely, yet comparatively it can, as the Philosopher shows in Book V of the Ethics, and thus compulsion is understood in this context.
OBJECTION Good men are always prepared to help the republic, there is no need to compel them to assume a magistracy by which they can help the republic.
RESPONSE Good men always desire to help the republic, but may prefer to be overly timid than rash in assuming a magistracy. For fortune’s scale is a slippery thing, and magistracy has envy as a companion. Wherefore, even if good men are always prepared to help the republic, yet they assume dignities timidly and bashfully.

THE CHAPTER’S DOUBTFUL QUESTION
Should public messes be observed in the commonwealth?

11. Come here, banqueteer, I would have a few words with you. Whither are you rushing? “The mess is ready.” Now Bacchus and Ceres are summoning you. “You mock me, philosopher. Tell me, where’s the food?” If you love your belly, stay a moment. “You are speaking of my belly, but I see no meal.” But stay your step. “I’m hungry, I’m flying to the cooks.” Nowadays there are many banqueteers, many who live a bacchanalia, many who make over their hereditary rights to a buffoon. But, though I rebuke Epicureanism of the belly, I do not wholly criticize the custom of banquets. Indeed I praise the Spartans, Cretans and Carthaginians, who maintained public messes. Thus antiquity desired, thus the authority of the commonwealth commanded, the utility of the citizens does not refuse them, the commodity that follows upon them demands this very custom. Why should I say anything about their antiquity, since once upon all nations (as the historians write) celebrated bounteous feasts? I shall pass over in silence the commonwealth’s authority, which squanders much splendor and dignity, if in electing magistrates and celebrating triumphs it should have no elegant banquets. It would be wearisome to write of the resulting utility, when the whole idea of public messes is to end quarrels, set aside hatreds, become friends, and graphically represent and depict the magnificence and reputation of the commonwealth. I make no mention of other advantages, which are recreation of the citizens, support of paupers, confirmation of the laws, and consultation about things that should be done in the commonwealth.

THE DISTINCTION OF THE QUESTION

 

12. OBJECTION When the cups are going around, Bacchus speaks more often than Minerva, and messes feed the belly rather than the mind. It therefore follows that they are not rightly and wisely established in the republic.
RESPONSE When the cups are going around and prudence is presiding over the banquet, Minerva speaks more often than Bacchus. Messes held by public authority, managed with due order, ornament the mind rather than the table. For messes of this kind are traditionally held, not for the sake of intoxication and drunkenness, but for that of concord and virtue.
OBJECTION The goods of the commonwealth are squandered in idleness with messes of this kind, therefore they should not be held. The antecedent is proven, since they are held not only for satiation, but for pleasure and delight.
RESPONSE The goods of the commonwealth are accumulated so that the citizenry might enjoy them, and I do not wish them to be squandered in leisure, but justly expended in this manner. For even if the table is set rather lavishly at a mess, this is done with an eye, not to the Man’s pleasure, but to the dignity of the commonwealth. For in order to be magnificent the commonwealth seeks not only what is necessary but also that which is splendid and decorous.

Chapter viii

Is it possible to commit an offense in the absence of a law?
May one demit a magistracy voluntarily assumed?

EXT the Cretans enter the fray with Minos, their very ancient legislator, they who are armed with the shores of the island they inhabit and the hundred cities they posses, undertaking a Cadmean struggle against Aristotle, in which they themselves fall. The fight is short but bitter, the victory savage but bloodless. For the power of truth is wonderful, which has overwhelmed so many lying Cretans. And it’s no wonder, for, just as light puts darkness to rout, so truth routs their legions. But I shall only do my business. At the the threshold of this struggle, King Minos, the justest of them all, once ruled on this island and gave it salubrious laws. This island, created as if by nature for empire over Greece, is bordered on one side by Asia, and on the other by the Peloponnese. Here Lycurgus long lingered, having left the protection of King Charilaus, and brought the laws and customs of this place with him into Sparta. Hence it used to be, as the Philosopher plainly states in the text, that in a number of respects the republic of the Spartans imitated that of Crete. But, just as the republic of Crete had no few characteristics that were better than the Spartans’, so it had a number that were less splendid and less well perfected. The reason is that, since men’s second thoughts are for the most part better than their original ones, thus old things are less finished and articulated in all their parts than those which are freshly invented. A comparison follows upon this description, and it is twofold, looking at that the things which made these two republics akin and similar, and also those by which the one can be differentiated from the other. First they are similar regarding the tillers of their fields, for, just as the Spartans had the Helots to work their land, so the Cretans had their Perioikoi. Secondly, they were similar in their messes, a custom which in ancient times the Spartans borrowed from the Cretans, calling them the Andria, but latterly the Phiditia. Thirdly, in the ordering of their polities, for, just as the Ephors were the leading men and magistrates amongst the Spartans, so were the Cosmoi amongst the Cretans. These did not differ from each other in office or responsibility, but only in number, for the Spartans’ Ephors were only five, but ten Cosmoi governed Crete. Finally, in both commonwealths each and every citizen could participate in counsel, but they had no actual authority save over those matters approved by the senators and Cosmoi.
2. So much for the similarity and proportion of these two states. But now I shall briefly speak of the things in which one surpassed the other. First, therefore the Cretans managed their public messes more advisedly, since they bid them be held and celebrated, not by oppression of citizens (as the Spartans did), but at public and communal expense (using the profits from their flocks, taxes and tributes). And, lest overpopulation hinder the commonwealth, they appointed times when citizens could sleep with their wives, although (horrible to relate) they allowed males to consort and wallow around with males. Another thing in which they differed was the election of their magistrates, for amongst the Spartans men of any condition, but amongst the Cretans only those of select families were elected to sit on the quarterdeck at the helm of state. Finally, to embrace each and every fact summarily, the Philosopher criticizes four features of the Cretan republic. The first is that the Cosmoi were bound by no obligation to submit an account of their author, the second is that they were permitted to occupy a magistracy for life. The third is that they governed the republic according to their own whim rather than according to the dictate of law. The final one is that it the magistrates were allowed to demit office when they wished. A little while ago I have discussed the submission of an account for office and the perpetuity of magistrates, and so from the two latter points I extract two questions which are not without their utility. The first is, can one commit an offense in the absence of a law, and the second, may one demit a magistracy voluntarily assumed? In this matter the constitution of the Cretan republic was vain and most dangerous, that, with laws set aside, they enslaved themselves to men’s affections and whims. Indeed, Aristotle wisely says here, it is dangerous for a magistrate govern, not according to the dictate of law, but according to his personal whim. For, as Man’s will is uncertain, so the voice of the magistrate has no rule of administering for the best. Indeed I add this, that if no law exists, there is no offense, for law defines wrongdoing, and, having defined it, does away with it by its severity. I affirm this both from the power of the law and from Man’s obedience. From the power of the law, which is that it should be a chain which binds citizens to doing or avoiding this or that. But when no law exists in the commonwealth, there is no such chain, therefore if law does not exist there is no civil wrongdoing. From Man’s obedience, since no man commits an offense unless he does something prohibited, but where no law is established nobody does anything prohibited, therefore where no law is established nobody commits an offense. For there is an offense as often as an obligation is violated. I say this, not because I believe that wrongdoing thus depends on the law so that, if there is no law there is no misdeed (since fault derives from the mind, not the law), but I mean this politically, that nothing is done amiss by citizens if a law is denied them which would make clear what this wrongdoing is. For I know and truly acknowledge that in Man there is a law of nature, namely innate reason, and whenever he deviates from this he should be deemed guilty of crime. For example, reason ordains that you should love yourself, your madness urges you to stab yourself; if you abandon reason and yield to your madness, you have committed a monstrous crime. Wherefore, even if, no law existing, no offense has been committed against the commonwealth, which lacks law, we are often impious and criminal against God, Who speaks to our mind, and against nature, which controls reason. Therefore republics which are governed by law are far better administered than those which depend on the whim of kings and rulers.
3. The second question is whether a man should be allowed to demit his magistracy before its appointed termination? This arises in passing out of that place in the text where Aristotle criticizes the Cretan republic because it was allowed their Cosmoi to resign from office, but it is not permissible, and I prove it thus. An interregnum and vacancy in a magistracy should not be permitted in the commonwealth, but to demit a magistracy one has undertaken is to allow an interregnum, therefore it should not be permissible to demit a magistracy one has undertaken. The major premise is proven, since what a man is without a soul, such is a commonwealth without a magistrate. The minor premise is agreed, since when a magistrate resigns the commonwealth lacks its scepter, the republic its voice. Then too, no disturbance of order ought to be admitted in a well-regulated republic, but disturbance of order ensues from this resignation of a magistracy , therefore this resignation should not exist. Furthermore, in the city that which invites suspicion should be shunned, abdication of a magistracy invites suspicion, therefore it will not be permissible to resign from a magistracy. Finally, nothing should occur in the commonwealth tending to tumult and sedition, a change of magistracy of this kind tends to tumult and sedition, therefore a change of magistracy of this kind should not be conceded. The assumption is agreed, since, if the city is left without its head, the citizens will be abandoned not otherwise than are sheep to wolves. Therefore I conclude that it is an unfortunate republic in which a magistrate reigns without law, but a wretched and unlucky one in which law reigns without a magistrate, since, just as if the law is taken away, the magistrate is like “Lesbian law,” so if the magistrate is taken way, the law is called mute and uncertain.

THE DISTINCTION OF THE FIRST QUESTION
If no law exists can an offense be committed?

 

4. OBJECTION By instinct of nature we are forbidden from crime, therefore if no law exists in the commonwealth an offense is committed. The antecedent is proven, since by instinct of nature we are forbidden to do to others what we would not hope to have done to us.
RESPONSE We are forbidden crime by instinct of nature indefinitely, but clearly and expressly by admonition of law. Nature does not define crimes, but law describes them and carefully distinguishes them in their species. Wherefore, even if no law exists and in departing from reason we commit a wrongdoing against nature herself, nevertheless if no law of the commonwealth exists we do not offend against the court.
OBJECTION Prior to the introduction of laws there were commonwealths in which theft, homicide, and other outraged were committed, therefore if no law exists an offense is committed.
RESPONSE I do not deny that there were commonwealths before the introduction of laws, and stains upon human life, but this argument does not prove that misdeeds were committed and accomplished against the commonwealth, but only against nature herself. For by laws the commonwealth defines crimes, by laws it wounds them.
OBJECTION To betray the commonwealth is to commit an offense against the commonwealth, if no law exists one can betray the commonwealth, therefore if no law exists one can commit an offense against the commonwealth.
RESPONSE The commonwealth is considered either inchoatively with respect to nature, or absolutely with respect to the law. To betray the commonwealth is indeed to commit an offence against the commonwealth, but we should think it thus committed that, if no law exists which defines this crime, it is committed against nature, which forbids this, rather than against the commonwealth, which has created no law.

THE DISTINCTION OF THE SECOND QUESTION
May one demit a magistracy voluntarily assumed?

 

5. OBJECTION A tyrant holding the helm of state oppresses the commonwealth, but in leaving his position makes it secure and happy, therefore it is sometimes permissible to relinquish a magistracy. The argument holds, because it is permissible to do that which is simply good, for a tyrant to demit the magistracy he has assumed is simply good, therefore it is permissible to demit a magistracy one has undertaken.
RESPONSE If you argue thus, that it is permissible for a tyrant to demit a magistracy, therefor it is permissible to demit a magistracy, your argument is weak and feeble. For it is (as they say) reasoning from a secondary consideration to a simple one, nor do I say it is permissible for a tyrant to do this. But if a tyrant should so do, the city may tolerate it as the lesser evil our of hope and expectation of a greater good.
OBJECTION That wise king Lycurgus, having sworn the people to observe his laws until he could return from Apollo’s oracle, underwent a voluntary exile and abandoned his government. By this example of a wise man, it appears permissible to demit a magistracy voluntarily undertaken. Furthermore decrepit old age, public infamy, defect of intellect and judgment are reasons for relinquishing a magistracy, therefore it sometimes appears well-advise to set aside the burden of this honor, and to resign a magistracy.
RESPONSE The example of one man has no force of law. Therefore that argument from Lycurgus’ example warrants no universal conclusion. The other reasons you allege have importance and weight, as long as such a resignation of a magistracy is done with the consent of the people.

THE CHAPTER’S DOUBTFUL QUESTION
Is it permissible for the people to prevent a magistrate from passing sentence?

6. Why are you muttering, you raging Tribune? Would you wish to hinder Caesar sitting in judgment so he might not pronounce sentence? Or would you veto a legislation? What canker, what plague in the commonwealth is this? Is Clodius or Caesar to reign? Assuredly I am amazed, wise Minos, why you introduced this law. Did you think it safe if the Cosmoi were to sit in court opposing themselves to tyrants or powerful men, if they were to be unjustly despoiled of their magistracies for a time, or obstructed from pronouncing their sentence. This surely should not be permitted. For, just as a disease will not be cured if a learned physician be forbidden to pour a wholesome medicine for his patient, so the wrongs of the commonwealth will not be expiated if judges be driven from their magistracy and sentencing. Our annals report that the son of Henry IV furiously broke into Parliament and made effort to rescue from trial a servant he very much adored. The people witnessed this and cowered, but the judge, a man of just and courageous mind, thus addressed the heir to the throne: “Hasten here, you mad young man, and run through this ancient breast of mine with that sword with which you are now threatening slaughter, run it through, if you want, I say, for I shall die rather than allow this example. This place you are now abusing is the courtroom of your father, the judge you are attacking is the personification of your father, the law you are violating accuses you of being a felon, not the son of a sovereign. Therefore, in the name of your father and by the authority of all the realm, for this misdeed I order you to depart to prison.” Stricken by this thunder, the young man threw aside his sword, voluntarily submitted himself to the judge’s sentence, and, to the admiration of the people, voluntarily cast himself in chains. Hearing of this tragicomedy, the wise old king broke into tears. “Oh how fortunate I am,” he said, “to see before my death such a just and earnest judge, such a pious and obedient son!” I tell this story so as to put before your eyes, as it were, how perilous it is to shout down a judge’s sentence. But if these things fail to impress you, thus I prove it more closely. In the commonwealth, the person of the king should not be held in contempt, a sitting judge embodies the king’s person, therefore a sitting judge should not be held in contempt. Furthermore, the office of judge is a sacred and venerable one, therefore it should not be violated. Finally, cause for sedition should be avoided, to hinder a judge from passing sentence is a cause for sedition, therefore it should be avoided. The minor premise is proven, since, once this license is granted, the people will tolerate no yoke of authority, no blow of discipline.

THE DISTINCTION

 

7. OBJECTION It is permissible to hinder what is unjust, a judge’s sentence is sometimes unjust (Nero, for example), therefore it should be impeded.
RESPONSE This argument is refused, since it is misleading and insidious. For it does not follow that a judge ought to be hindered, because an unjust man should be hindered. Furthermore, though the judge be unfair and criminal, such is the majesty of the court, such the religious awe of this name, that he should in no wise be disturbed on the throne of justice.
OBJECTION Once the Romans created Tribunes of the People, to whom it was allowed to block a judge’s sentence, therefore antiquity appears to approve this thing, namely, that it should be permitted the people to prevent a judge from pronouncing sentence.
RESPONSE We do not read that it was permitted them to obstruct a magistrate, but when the Tribunes’ fury claimed this, the glory of the Roman Empire failed. For the Romans’ splendor vanished at the time when the Tribunes’ fury crept in.

Chapter ix

When the leading men of the commonwealth are at odds, should full power of deciding the quarrel be granted to the people?
Should it be permissible for one man to assume several magistracies?

NCE the Philosopher had made an assault on the legislator Phaleas of Chalcedon, but now he is attempting to lay waste Carthage itself. For though this city had the loftiest of citadels and walls, he shows that it possessed laws (by which it should be more soundly protected than by its walls) that were unwholesome and ill-considered. But since the text, being clearer than light, requires no interpreter, striving for brevity I shall not be tiresome with many words. So this is a summary of it all. If Carthage was once a rival of the Sparta in its form, afterwards (if you consider its reputation) it long maintained itself excellently as a rival of the Roman Republic. An argument that can be adduced to document this is that neither sedition oppressed it, nor tyranny destroyed it. The comparison of the Carthaginians and the Spartans is based on two features, namely their messes and their magistrates. For their were messes or public banquets in both commonwealths, but in differing ways. For amongst the Carthaginians it was not the entire people (as amongst the Spartans) but a certain sodality or, as it were, a college celebrated public banquets. Also, Carthage had its Council of One Hundred, as Sparta had its Ephorate. Likewise these two commonwealths were kindred regarding their kings and senators, but the Carthaginians were better advised, since they chose their kings, not from a single clan (as once amongst the Spartans they were chosen from the family of the Heraclidae), but out of the entire commonwealth on the basis of individual merits and dignity, since the rewards of the commonwealth indeed should be given (even if they are not wont to be) to the dignity of mind rather than blood. Having made this comparison, in which he seems to prefer Carthage over Sparta, the Philosopher rebukes a few things in the Carthaginian commonwealth as faulty, and this in particular, that his description of this republic tends in part to a democracy and in part to an oligarchy: to a democracy since, when the Council of One Hundred, the leading men of the commonwealth, dissent among themselves, the quarrel is referred to the people; to an oligarchy, because the College of Five (who control the highest administration of the republic) choose their own members, and also elect the members of the Council of One Hundred. To which he adds this, that members of the College of Five can occupy several magistracies at once, and nothing tends more than this to the rule of a few and to oligarchy.
2. As you perceive, diligent reader, two questions arise from these things: first, when the leading men of the commonwealth are at odds, should full power of deciding the quarrel be granted to the people? And second, should one man be allowed to assume several magistracies at the same time? In every commonwealth it is of course to be hoped that the minds of its citizens are sufficiently vigilant for maintaining the peace that they allow neither an external enemy to raise his head, nor civil hatred to spring up. For, just as nothing is more precious within the commonwealth than union, so nothing is more pernicious than division, as civil hatred is prone to the destruction of one’s enemy, and very careless about the utility of its own defense. But, since in this evil flows fromthe Lake of Envy into practically every commonwealth (for what commonwealth is lacking in discord?), a remedy must be found lest it attack our innards, like a wolf or a plague. Ovid rightly wrote, Resist things at their first beginning, a medicine is prepared too late when evils have grown strong during your long delay. But what medicine can be applied if Milo and Clodius, of Caesar and Pompey are fighting each other, that is, if the commonwealth’s magistrates and leading citizens are burning and torn apart by deadly hatred? Indeed nearly any medicine is too late when the commonwealth’s bowels are set afire by seditious firebrands. But if there is any remedy, it is that they should immediately approach the oracle of counsel, like a temple of peace erected in the midst of the commonwealth, that is that they consult the entire commonwealth about the matter, so that it might, as it were, come together as one and wholly extinguish this monster of sedition. “So what do you want? For the the people settle the nobles’ quarrels? That the unskilled multitude manage great affairs of state?” That is what I want. “Your opinion is inappropriate and most perilous for the tranquillity of the republic.” Your judgment is rash and ill-advised. For I make this distinction about the people, that sometimes it is to be taken for an unskilled multitude and common run of men, but sometimes for the voice of the commonwealth. I do not want a many-headed Hydra to be assembled to hear the suits and controversies of leading men, but I want this, that in any commonwealth select men should assemble in council, and wisely and expeditiously settle the matters at issue by popular vote. In the description of any commonwealth, the people, understood in this manner, are not to be scorned, since (as the proverb says) the voice of the people, understood in this manner, is said to be the voice of God, for this ancient saw is not just said about a man’s reputation, but also about the standard of truth. What better asylum can be found than the people, assembled as one? Surely none. Furthermore, this situation or exigency does not tend towards democracy, because recourse is had to the people, not concerning all evils, but only ones that occur rarely and which cannot otherwise be cured. If you insist that I conclude my points in a few words, I argue thus. The hatred of leading men cannot otherwise be resolved or extinguished peacefully, therefore it is allowed to the people to pass judgment on controversies when magistrates are in disagreement. Furthermore, the people gathered together in due order have the to elect, therefore it should also have the power of ending and adjudicating quarrels, which is a much lesser thing. Then too, when the chief men are comporting themselves in a disorderly way, the commonwealth does not speak save through the people, therefore in such a tempest the full power of judgment is granted the people. Also, that commendably well-administered commonwealths once did this in such an eventuality, we know from histories that Carthage, Rome and Athens once did this, therefore it is permissible according to examples. Finally, that which makes the commonwealth tranquil should transpire, such a power of the people makes the commonwealth tranquil, therefore such a power should be granted. The minor premise is proven, since for fear of the danger of a “black congregation,” as they say, would thus comport themselves more in an upright manner, or, if they should stubbornly nourish the tinder and sparks of sedition, it is salubrious for the republic if they should understand that it is in the people’s power to apply strong medicine to this wound. Furthermore, in this way somewhat of dignity would be conferred on the people, who would otherwise be quite abject, if, at least when the republic was in peril and shaken by the nobles’ hatreds, liberty, but not license, temporary judging for the sake of moderation, but not the power of governing, be granted them. For in this case alone, during this transport and swoon of the commonwealth, I would have the helm be turned over to the people.
3. Another doubtful issue now follows, whether is should be permissible for one man to assume several magistracies. The man to whom an honor is given also has a burden thrust upon him. I shall change the verse to read Honor is a thing full of anxious care. What say you, Caesar? “I’ll perjure myself to gain a kingdom.” You are on the throne, what say you, Caesar? “Woe is me, for I’m perishing in the Senate.” So tell me, Caesar, what think you of the kingdom? “It’s fortune’s high citadel, but it’s the ruin of a man.” Would that the ambitious would think harder on this one point, they that nowadays run into many reefs and misfortunes while chasing after magistracies. But the ambition of these times is blind, their are many Caesars, but few Catos. There are many who are borne headlong to magistracies, but those who are found to comport themselves in a magistracy as men should are exceedingly rare. Therefore I admire, or rather I amazed by those who snatch at several magistracies at once, although (if they considered this matter better) the performance of a single one as it should be performed is a thing more full of labor than honor. The arguments showing this to be true are many, amongst which the first is taken from the definition of a magistracy. For if a magistracy is a public office of the commonwealth, by which a man is transformed from his private condition to being a public personage for the sake of procuring a common good, nobody with any sense would imagine himself to be at one time playing Aeneas and Hector, Cato and Scipio, upon the public stage. For what have the toga and the spear, peace and war, ever had in common? Therefore, since every public office in the commonwealth requires an upright and just man, it is done amiss if a single man, who scarcely performs one rightly and justly, is burdened with multiple offices. Another argument can be sought and derived from difference, namely that distinct magistracies have distinct duties and responsibilities, like an aedileship and a praetorship, so that it follows that it is reasonable also to assign distinct persons to these offices, for otherwise there will be a dangerous confusion of magistracies within the commonwealth. I add a third reason from difficulty, since every public function is loaded with many and great difficulties, so it is impossible that one and the same man can discharge several magistracies without damage to the republic. For, should this occur, it is necessary that he must altogether abandon the one so he may give his attention to the other seriously and diligently, as he should. Furthermore, I prove this same thing from similarity, for, just as nature did not give one thing all offices, but gave individual things their distinct offices (that the sun should shine, for example, and that fire should burn), thus within the commonwealth reason and order demand that within the commonwealth a single man should canvass for and claim a single office, and not more. Then too, an argument drawn from results introduces itself into this list, which is that in the commonwealth these evils attend on the canvassing for and possession of multiple magistracies, namely the muttering and grumbling of the people, the neglect of duty, the corruption of judgment, the hatred and contempt of dignity. Furthermore, I would have those who maintain the contrary opinion to show me what custom, what example, even what trace of a flourishing republic might ensue. I am indeed aware that this occurs in certain commonwealths. But I am assuredly unaware by what right, by what law, by what example of our forefathers this occurs. The Romans, the Macedonians, the Spartans passed this law, that no man should simultaneously occupy two offices in the commonwealth. For there is more of a burden in a single one than any single man can properly undertake or support. So therefore let us dismiss those men who (if I may so say) are enticed by the plurality and weight of all these magistracies: they swallow the bait but do not perceive that a poisoned hook lurks within. I have written these things, not being unaware that there are certain miracles of intellect, reason and experience, to whom the favor of sovereigns and commonwealths may rightly entrust several keys of the republic, but since amongst men these are as rare as the Phoenix, just as I do should not begrudge those who exercise multiple offices, so I do not dare say definitively that several dignities ought to be conceded one man. For, just as on the one hand it is fair for Scaevola and similar oracles of the commonwealth to be illuminated by many and great lights of the republic, so on the other hand it is always unsafe that the helms and charts of many a ship be entrusted to Aquilas and more powerful men, for, borne on their pinions beyond the clouds, eagles always strive to fly into the sun.

THE DISTINCTION OF THE FIRST QUESTION
When the leading men of the commonwealth are at odds, should full power of deciding the quarrel be granted the people?

4. OBJECTION If it be permitted the people to settle quarrels begun by the nobility, it is to be feared that democracy at length grow out of monarchy or aristocracy, such a change in a commonwealth is perilous, therefore it is not permitted the people to do this. The major premise is proven, since, this license having been granted, the people will seek to seize controil of its freedom, rather than tolerate the yoke of servitude any longer.
RESPONSE I do not mean that the people should launch an attack at leading men when they are at odds, but that (if possible) according to order and law it should reconcile them, if possible, for if this hatred should have flames, it should be extinguished by the authority of the commonwealth.
OBJECTION The people cannot establish law, therefore it is not allowed it to dictate terms to optimates. The antecedent is proven, since the establishment of law is a royal prerogative. The argument holds, since if you remove the power of establishing law, the people has no legitimate authority for the settling of quarrels.
RESPONSE Although the power to establish law is not conceded the people absolutely, yet it is comparatively. Furthermore, in every well-regulated republic this law is granted by the consent of the best men, that if sedition of leading men should occur, it is to be settled by the people. Finally, it is permitted the people to establish law in its convened senate, since it is permitted to choose leading men. For what else is power of office than high authority granted one man by the people?

THE DISTINCTION OF THE SECOND QUESTION
Should be permissible for one man to assume several magistracies?

 

5. OBJECTION The king holds every magistracy of the republic by right of the commonwealth, therefore it is permitted one man to undertake and support multiple magistracies. The argument holds, since, if the king by himself possesses them an all, another man (who is prudent and expert) can claim several.
RESPONSE The king holds one magistracy of the commonwealth explicitly, as they say, but implicitly holds them all. But this manner of holding is nothing other than to be the soul of the commonwealth. For, just as one mind dictates to the several parts of the body, each of which, however, has its own proper office, so the king presides over the other magistrates of the republic, although he himself possesses a majesty distinct from the rest.
OPPOSITION A good commonwealth ought to share out the dignities of fortune according to citizens’ merits, many men often deserve several magistracies, therefore it is not absurd if several are conceded to one man. The major premise is Aristotle’s in the Ethics, where he teaches that the good things of fortune are the handmaidens of virtue. The minor is proven, since there are many men (like that famous Roman Horatius Cocles) who deserve several for having freed their nation.
RESPONSE Merit is amply rewarded when the order of justice and the commonwealth is observed. That Horatius Cocles, Scipio, Curtius, and many others have freed their nation was their duty. But the quantity of merit is compensated by the enlargement of a single dignity, not by the expense of several magistracies.

THE CHAPTER’S DOUBTFUL QUESTION
Is it permissible to purchase a magistracy?

6. Most rapacious Verres, this is an intrusion, not an election, by which you seek honor in the commonwealth for the sake of gain, you make the republic a sordid commodity. That saying is discredited, seditious Antony, Oh citizens, citizens, first we must seek money, and virtue after coins. Discredited, did I say? Nay, it is accepted. Indeed (oh the sorrow) very much so. Deny it if you can, for this is true, If you have brought nothing, Homer, you shall stand outside. It was once said of Rome, everything’s for sale at Rome. Rome is a large and spacious city, but not alone susceptible to this statement. What do you want, you money-grubbing merchant? Are you canvassing for a magistracy? Tell me how much you’ll give. “One hundred.” Alas, too little. ”I’ll give two hundred.” I don’t like that either. “Perhaps I’ll throw in a lazy eunuch. Let’s shake hands on it.” Hey you, you will vigorously swear you’ve given nothing. “This is politic, as long as there’s some profit in it.” You say it’s politic, as long as there’s some profit in it, you rascal? Oh Christ, if this evil creeps wider abroad, what fall and ruin of the city will I see? But we must wink at it, for our days are evil, our citizenry corrupt. It is not allowed, I say it is not allowed to put a magistracy up for sale. For a dignity is purchased by virtue, not money, a magistracy is a dignity, therefore it is owned to virtue, not money. I can’t stand that statement, “as long as there’s some profit in it.” For to acquire a thing justly is a genuine profit, but to purchase a magistracy is not to acquire it justly, therefore to purchase a magistracy for money is not a genuine profit. Do you still persist, you impious man, as long as there’s some profit in it? You should not sell that which is not yours, a magistracy is a good of the commonwealth, not of your own, therefore you should not sell a magistracy. You are impudent if you still persist. For to auction off the commonwealth is a monstrous crime, to buy and sell magistracies is to auction off the commonwealth, therefore to buy and sell magistracies is a monstrous crime. You ask the reason? Listen. He may rightly sell what he previously purchased. Hence it comes to pass that money rather than prudence, profit rather than virtue, human affection rather than equity’s moderation reigns in the commonwealth.

THE DISTINCTION

 

7. OBJECTION Whatever renders the commonwealth powerful and opulent should be tolerated, or rather approved, the purchase of magistracies renders the commonwealth powerful and opulent, therefore the sale of magistracies should be tolerated, or rather approved. The minor premise is proven, since if it is decreed by statute that the money of purchasers should be deposited in the public treasury, of necessity the commonwealth will be powerful against its enemies and opulent.
RESPONSE Your major premise is suspect, since whatever renders the commonwealth powerful and opulent should not be tolerated unless it be just. I also deny your minor premise, and in confirmation of that I say that statue is unjust, since it makes the commonwealth a sordid commodity, indeed it destroys all government of justice and equity, for justice has no force where money rules.
OBJECTION As it says in the text, amongst the Carthaginians it was praiseworthy and glorious to purchase a magistracy, and to hold several at the same time, the Carthaginian republic is praised by Aristotle, therefore it appears praiseworthy to purchase a magistracy.
RESPONSE Your argument based on the single example of the Carthaginians is weak, and, although in other respects they are indeed lauded, yet in this one they were most deserving of criticism, as the Philosopher taught in the text.
OPPOSITION Whatever has the force of hereditary right indeed can be purchased, but many dignities and magistracies are given to many many men on the terms that they have the force of hereditary right, therefore many dignities and magistracies indeed can be purchased.
RESPONSE Experience teaches that sovereigns have given certain magistracies to some men outstandingly deserving of the republic, so that not only their survivors, but even their posterity might enjoy them. Yet it does not follow from this that these magistracies are held by hereditary right, or that they can be sold off at all, for sovereigns did not grant them to be sold, but so the virtues of the men to whom they had given them might shine the brighter among their posterity.

Chapter x

Can innocent men falsely accused sometimes be justly condemned?

N the same way that victors in war lead many of the men they have conquered through the city together with their spoils, so at the end of this campaign, in the manner of triumphing generals, Aristotle displays to us many of his adversaries as enchained captives, as it were, as a token of his victory. You may see Socrates, Plato, Phaleas, and Hippodamus sharing a chain, you may see Lycurgus, Solon, and many another, fettered no otherwise than slaves by law, being driven and dragged hither and thither. For, that I may speak of nothing save the matter itself, in this chapter the Philosopher only names his defeated foes, and briefly catalogues their laws and institutions, taking a little for himself, and offering us the rest as the spoils of his art. For thus he says, Of those who have written about the republic, some have always lived in peace and leisure, such as Plato, Phaleas, and Hippodamus; some had experience in administrating their city, and of the latter some were simply the authors of laws, while others gave bequeathed us a formula for governing the republic, such as Lycurgus and Solon. Here Aristotle extolls Solon as a wise and energetic lawgiver, since he abolished oligarchy, or the rule of the few, since he freed the people from servitude, restored ancient democracy or ancestral power, and since, in sum, he rightly and prudently designed the entire Athenian republic. For he restored the senate of the Areopagus to the rule of the leading citizens, the election of magistrates to the government of the optimates, and judgments to the authority of the people, and thus so mingled and tempered all elements in the commonwealth that highest, middle sort , and lowest, placing their reliance on some portion of the commonwealth, lived in happiness. But some have people leveled against Solon the accusation that, with so much power of judging granted the people, he reduced that illustrious senate of the Areopagus to nothing. But the Philosopher replies Solon did not intend this, but Ephialtes and Pericles brought it about, who gave mercenary decisions that favored the people. But indeed this was more the result of Themistocles’ brilliant victory over King Xerxes, which was achieved by the Athenian people. In consequence the Athenian people was made more insolent, and assumed higher spirits than was its wont, and puffed itself up so much against the consular men of the Areopagus that, ill content with its lot, it assumed a tyranny and triumphed. With these issues disposed of, Aristotle introduces a bevy of legislators, and rehearses their several laws and institutions. The legislators are these by name: Zaleucus, Charondas, Onomacritus, Philolaus, Draco, Pittacus and Andromadas, whose stories are most excellently set forth in the text. Zaleucus (to say something about each) introduced this law among the Locrians, that men caught in adultery should be deprived of both their eyes. A little while later Zaleucus’ son, found guilty of this crime, was haled before his father’s tribunal, with the common people begging he be shown mercy. But this just King, to satisfy both the law and the people, had one of his son’s eyes put out, and one of his own. The strength of justice is surely rare and wonderful, which does not allow fathers to spare their children. What license for wrongdoing can the people hope for, if the civil sword is drawn against the sons of kings? Charondas, who gave laws to the cities of Chalcis in the region of Italy and Sicily, decreed this one memorable thing, that beggars and bearers of false witness should be put to death. Onomacritus, who excelled at the art of divination, passed this law in Crete, that sacrilege against God should be punished with the sword. Philolaus of Corinth, the lawgiver of the Thebans, established a law that the amount of goods and inheritances which each man should chance to possess should be maintained, under penalty of exile. Draco’s laws were characterized by nothing at all except the blood in which they were written, for he decreed a penalty of death for all crimes, even the most trifling. Pittacus of Mytilene set up a law that drunkards, if they harmed someone, were to pay a greater penalty than sober men. Andromadas handed down many laws about homicide and orphaned girls. Here I gladly keep my silence about Plato’s laws, for the Philosopher has previously reviewed and criticized them.
2. Out of these laws I have enumerated I shall extract this one question, whether a man oppressed and accused by false testimony can justly be condemned? Charondas (of whom I have just now spoken) wrote many noteworthy things about false testimony, among which was this one thing, that sometimes a man oppressed by false witnesses may be justly condemned. One should know that once upon a time testimony was introduced in support of our discovering the truth, so that, insofar as we can, we might aim for the First Truth, which cannot be deceived. Hence it is clearly understood how monstrous and inhuman a crime it is to give false testimony, since this is to depart and stray from the First Truth to the greatest possible extent. For there a threefold deformity in false testimony, of perjury, of violated justice, and of hidden malice: of perjury, since nobody is admitted as a witness at a trial save upon his oath; of violate justice, since this is prohibited by severe laws; of malice, since by this means an innocent man is placed in danger and peril for his life, in despite of the commonwealth’s intention. But, although false testimony is a monstrosity contrary to conscience and truth, than which nothing is nor can be imagined to be more cruel, nonetheless he who is condemned, having been oppressed by false witnesses, cannot always be said to suffer an unjust punishment. For since the means of discovering crime, and also the human means of tracking down the truth, are most weak and feeble, it cannot be otherwise than that a judge (though he be wise) is sometimes compelled to trust the oaths of depraved men, for these pernicious fellows are taken for good men until they are obviously proven to be evil. So when in the presence of a judge these vampires and assassins should take a solemn oath that Aristeides the Just is a traitor, if the judge proceeds according to the allegations and what they claim to be the evidence, Aristeides would not not be condemned unjustly, for it is better that the one man Aristeides should perish than the order of the law and the commonwealth. But you will say, “He is a good man, and therefore should not be put to death with justice. I would add this too, that nobody should be deprived of live without guilt and without cause.” I reply that this occurs without any guilt on the part of Aristeides, but not without cause from the city’s point of view, and this is the orderliness or constitution of the law. But if the judge himself should understand this, namely that Aristeides is innocent, although as a judge he has the power according to the severity of the law, yet according to the moderation of equity (which blunts justice’s sharp edge) he would forbid it to do this thing; indeed, the judge would not refuse to submit to the most exquisite of tortures rather than shed an innocent man’s blood, contrary to his own conscience.

THE DISTINCTION OF THE QUESTION

3. OBJECTION Virtue deserves praise, not punishment, therefore a just and innocent man cannot be condemned.
RESPONSE It is to be admitted that a reward rather than a punishment is owed to a just man, yet if a just man is accused as being guilty in accordance with the order of the commonwealth, by the dictate of the law (which is referred to the conservation of the public good) this same man can justly be condemned.
OBJECTION It is cruel to inflict punishment on someone where there is no crime, crime is not committed by a just man, therefore it is cruel to inflict punishment on a just man.
RESPONSE There is no crime, but there is no lack of cause. For when testimony cannot be refuted, then the judge, instructed by the testimony, draws the sword of justice in accordance with his duty, and smites and condemns the accused as if he were guilty. Yet this only happens when the snares of false witnesses cannot be detected; otherwise, the matter being found out, the judge wants to (if he is a good man), is accustomed to (if he is steadfast), and ought to (since he is a judge) exercise equity for mercy rather than severity with regard to the offense. For if the matter had been found out and he were to condemn the accused, he would be acting against his own conscience, and nothing more sharp or savage can be invented or devised. But there are those who think that the judge, considered as a judge rather than as a private person, can justly condemn an innocent man thus accused.

THE CHAPTER’S DOUBTFUL QUESTION

4. Please go far, far away, Mark Antony, for yesterday’s feast, which you are vomiting up today with bits of food reeking of wine, greatly offends me in my hunger. Don’t you see that your own drunken shirt front and the whole tribunal are befouled with the undigested remnants of your dinner? Greetings, Tiberius, you most bibulous emperor, and you too, Flaccus and Piso, you tosspots who win the very florid palm for your drinking, great greetings. Have you been on a two-day binge? How does it come to pass that I see your your eyes are so sleepy, your tongues so twitching, your feet so unsteady? “I make my appeal, Philip, noble king of the Macedonians.” ”You make your appeal, gallows-bait?” ”Yes, I make my appeal.” ”To whom?” ”I make my appeal from Philip, now drunk, to a sober Philip.” But what am I doing? This case is pleaded better by demonstration than by an oration. Right, Seneca, drunkenness is nothing other than voluntary insanity. Therefore the he who commits a crime while in his cups is so far removed from deserving pardon that he ought to be visited and injured by a twofold punishment. I say a twofold one, since he should suffer one for his ignorance, which is dense and inert, and a second one because of the offense he has committed, which is intolerable. Furthermore, the more evil a man does, the more he is to be chastised, a drunkard commits more evil than a sober man, therefore he is to be chastised more heavily. The minor premise is proven, since he offends against nature, himself, and the commonwealth: nature, which is rendered helpless by his drunkenness; himself, because in this way the keenness of his intellect is destroyed; the commonwealth, since a citizen is harmed by wine’s furious vapors and fire. Finally greater harms to the republic follow upon drunkenness, such as desire of the mind, lack of self-control among the people, which plagues, like cankers, creep further abroad, and, if not cured, in the end infect the entire commonwealth with, as it were, their scabrous leprosy. Wherefore (as it says in the text) Pittacus rightly decreed severe laws against drunkards. So let wine be taken sparingly, for wine is a chatterbox that does not know how to keep its silence, indeed wine and Venus turn men into Cyclopes and monsters of nature. Wine is a drug for the body, but a toxin for the mind. I approve its use as long as sobriety is maintained, but I sharply criticize its excess, which leads to drunkenness.

THE DISTINCTION

5. OBJECTION A wrongdoing is all the more serious when it is voluntary, the wrongdoing of a sober man is more voluntarily than that of a drunkard, therefore the sober man’s wrongdoing is more serious, and in consequence, a sober man is to be punished more for a crime he has committed than a drunkard.
RESPONSE A drunkard’s wrongdoing is no less voluntary than a sober man’s, since the ignorance that wine works harm is voluntary, and this ignorance is the pernicious cause of drunkenness. Furthermore, a judge does not always judge condemn with an eye to a man’s intention, but rather to whether the commonwealth has received a greater or lesser injury, which is why judges are popularly called ”jurisprudents.” Sometimes a man without guilt can be punished, if you consider the intention of his mind, but not without reason, if you have regard for the harm inflicted upon the commonwealth.
OBJECTIONS Drunkards and lunatics only differ in the duration of their madness, for both lack the use of their reason, but lunatics are not seriously punished for the crimes they have committed, therefore neither should drunkards.
RESPONSE Drunkards and lunatics differ in more ways than just the duration of their madness, for the cause of drunkenness is voluntary, but that of lunacy is a flaw in nature. Wherefore if both are not restrained by the same laws, this is well-advised, for monstrous drunkenness harms the commonwealth more than does furious lunacy.

PRAISE BE TO GOD

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