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καὶ τὸ τοῖς ἀνθρωπίνοις συγγινώσκειν] ‘the indulgent consideration of human accidents and infirmities’, especially errors, in mitigation of the application of the strict letter of the law. On τὰ ἀνθρώπινα, see note on I 2. 7, p. 34. These human errors and infirmities in the culprit should be met by a corresponding humanity on the part of the judge, the opponent, and indeed men in general. Victorius quotes ‘Ter. Adelph. III 4. 24, persuasit nox amor vinum adolescentia: humanum est.’ τὸ δ᾽ ἐξαμαρτεῖν καὶ περὶ τὰς πράξεις ἀτυχεῖν οὐ μόνον εἶναι αὑτῷ ἴδιον (φάθι), ἀλλὰ καὶ κοινὸν καὶ τῶν δικαζόντων καὶ τῶν ἄλλων ἀνθρώπων, Rhet. ad Alex. u. s. § 10. §§ 17—18. ‘And to look (in interpreting the offence and the amount of the penalty), not to the law, but to the legislator, and not to the mere words (the letter) of the law, but to the mind (the intention) of the legislator’; (ὅταν οὖν λέγῃ μὲν ὁ νόμος καθόλου, συμβῇ δ᾽ ἐπὶ τούτου παρὰ τὸ καθόλου, τότε ὀρθῶς ἔχει ᾗ παραλείπει ὁ νομοθέτης καὶ ἥμαρτεν ἁπλῶς εἰπὼν ἐπανορθοῦν τὸ ἐλλειφθέν, ὃ κἂν ὁ νομοθέτης αὐτὸς οὕτως ἂν εἴποι ἐκεῖ παρών, καὶ εἰ ᾔδει ἐνομοθέτησεν ἄν. Eth. Nic. V 14, 1137 b 20); ‘and (to look) not to the act (of the accused) but to the deliberate purpose or intention, and not to the part but to the whole’ (i. e. not to take a narrow view of the criminality of the act by confining yourself to the consideration of the bare naked fact, or of some particular part or circumstance of it, which gives it a specially vicious appearance; but to look at it as a whole, to take into account the general character of the doer and all the attendant or surrounding circumstances which will throw light upon the intention of it, the purpose with which it was done), ‘and not merely to the present character of the offender but to the constant or usual character that he bore (to what sort of man he was, always or usually)’.
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