第102章 BOOK IX(11)

If a man is found dead,and his murderer be unknown,and after a diligent search cannot be detected,there shall be the same proclamation as in the previous cases,and the same interdict on the murderer;and having proceeded against him,they shall proclaim in the agora by a herald,that he who has slain such and such a person,and has been convicted of murder,shall not set his foot in the temples,nor at all in the country of the murdered man,and if he appears and is discovered,he shall die,and be cast forth unburied beyond the border.Let this one law then be laid down by us about murder;and let cases of this sort be so regarded.

And now let us say in what cases and under what circumstances the murderer is rightly free from guilt:-If a man catch a thief coming,into his house by night to steal,and he take and kill him,or if he slay a footpad in self-defence,he shall be guiltless.And any one who does violence to a free woman or a youth,shall be slain with impunity by the injured person,or by his or her father or brothers or sons.If a man find his wife suffering violence,he may kill the violator,and be guiltless in the eye of the law;or if a person kill another in warding off death from his father or mother or children or brethren or wife who are doing no wrong,he shall assuredly be guiltless.

Thus much as to the nurture and education of the living soul of man,having which,he can,and without which,if he unfortunately be without them,he cannot live;and also concerning the punishments:-which are to be inflicted for violent deaths,let thus much be enacted.Of the nurture and education of the body we have spoken before,and next in order we have to speak of deeds of violence,voluntary and involuntary,which men do to one another;these we will now distinguish,as far as we are able,according to their nature and number,and determine what will be the suitable penalties of each,and so assign to them their proper place in the series of our enactments.The poorest legislator will have no difficulty in determining that wounds and mutilations arising out of wounds should follow next in order after deaths.Let wounds be divided as homicides were divided-into those which are involuntary,and which are given in passion or from fear,and those inflicted voluntarily and with premeditation.Concerning all this,we must make some such proclamation as the following:-Mankind must have laws,and conform to them,or their life would be as bad as that of the most savage beast.And the reason of this is that no man's nature is able to know what is best for human society;or knowing,always able and willing to do what is best.In the first place,there is a difficulty in apprehending that the true art or politics is concerned,not with private but with public good (for public good binds together states,but private only distracts them);and that both the public and private good as well of individuals as of states is greater when the state and not the individual is first considered.

In the second place,although a person knows in the abstract that this is true,yet if he be possessed of absolute and irresponsible power,he will never remain firm in his principles or persist in regarding the public good as primary in the state,and the private good as secondary.Human nature will be always drawing him into avarice and selfishness,avoiding pain and pursuing Pleasure without any reason,and will bring these to the front,obscuring the juster and better;and so working darkness in his soul will at last fill with evils both him and the whole city.For if a man were born so divinely gifted that he could naturally apprehend the truth,he would have no need of laws to rule over him;for there is no law or order which is above knowledge,nor can mind,without impiety,be deemed the subject or slave of any man,but rather the lord of all.I speak of mind,true and free,and in harmony with nature.But then there is no such mind anywhere,or at least not much;and therefore we must choose law and order,which are second best.These look at things as they exist for the most part only,and are unable to survey the whole of them.And therefore I have spoken as I have.

And now we will determine what penalty he ought to pay or suffer who has hurt or wounded another.Any one may easily imagine the questions which have to be asked in all such cases:-What did he wound,or whom,or how,or when?for there are innumerable particulars of this sort which greatly vary from one another.And to allow courts of law to determine all these things,or not to determine any of them,is alike impossible.There is one particular which they must determine in all cases-the question of fact.And then,again,that the legislator should not permit them to determine what punishment is to be inflicted in any of these cases,but should himself decide about,of them,small or great,is next to impossible.

Cle.Then what is to be the inference?

Ath.The inference is,that some things should be left to courts of law;others the legislator must decide for himself.

Cle.And what ought the legislator to decide,and what ought he to leave to courts of law?

Ath.I may reply,that in a state in which the courts are bad and mute,because the judges conceal their opinions and decide causes clandestinely;or what is worse,when they are disorderly and noisy,as in a theatre,clapping or hooting in turn this or that orator-I say that then there is a very serious evil,which affects the whole state.