It is a feature of human nature to try to control our environment. We wish to exert some kind of influence over the outcome of events, and thereby enhance our own feelings of security and comfort. Yet there are many times when human labor will fall short; it will prove itself to be incapable of dealing with a situation, or unable to weigh the nuances of an evenly balanced pattern of fact. When these situations come about, we must step back from the work-shop; we must move away from the work-table, the field of conflict, or the courtroom, and Fortune take over the guidance of events.
This is not something that a man of action can easily do. Trained to act, to decide, and to intervene in the chain of causation, he will find it difficult to take a back seat and let another steer the vehicle. Yet it is a necessary skill to master. One cannot know everything; one cannot master all outcomes, or reduce them to an easy trajectory of predictability. I am not advocating a passive submissiveness to chance: that I want to make very clear. What I am saying, instead, is that once we have exhausted all of our available remedies, we must call on the assistance of the Ultimate Decision-Maker.
The final decision will always lie with Fortune, and her preferences may yet overrule the decisions of all lesser triers of fact and law. An old attorney once told me when I began practicing law, “You will win some you should lose, and you will lose some you should win.” And so it has turned out to be. It is also true that equitable resolutions take time. They can take very much more time than we wish them to. But justice does not obey the dials on our clocks; it follows its own schedule, and it will not be rushed.
The following anecdote is a relevant illustration. It is found in both Ammianus Marcellinus (XXIX.2.19) and Valerius Maximus (VIII.1). There was once a woman of the Greek city of Smyrna who was arrested and tried for homicide. She was brought before the Roman proconsul Dolabella, a figure who apparently governed parts of Asia after Caesar’s death. This woman actually confessed that she had indeed poisoned her husband and her own son by this man. She said that she did this out of revenge: the two murder victims had supposedly killed the woman’s other son, who was from her previous marriage. Her confession presented the court with a problem. On the one hand, a double homicide had been committed, and the crime was a very serious one; but on the other hand, she had been acting from an understandable motivation. There were mitigating circumstances that argued for leniency.
She was ordered to re-appear before Dolabella several days later, but he and his judges could not find a satisfactory decision. Dolabella had reached the limits of his options; he did not know what his next step should be, or to whom he should turn. Finally an insight came to him: he referred the case to the Greek judges at the Areopagus, which was experienced in judging homicide cases. The judges there had a reputation for wisdom and equity. So he sent the case on.
The subtle Greeks weighed the facts of the case and came to a remarkable decision. They ruled that the case would be postponed for a hundred years; and that exactly a hundred years hence, she should re-appear before them with her accuser, at which time a ruling would be issued. And so an equitable compromise was reached, after all other options had been exhausted. Regarding this ruling, the historian Ammianus adds this brilliant adage:
Ita numquam tardum existimatur, quod omnium ultimum.
This sentence translates as, “Thus the final act of all is never considered late.” What he means by this is that a postponement of even a hundred years from now will not be seen as late, since the postponement itself is serving the cause of justice. Justice can take time. It may even take a very long time. But as long as the final event in drama happens at some point in the future, it will not be considered “late,” for it is an essential part of that continuum of justice.
According to Pliny (Historia Naturalis, XXXV.104) and Valerius Maximus (VIII.11), there was once a famous painter who completed an image of a horse. This artist wanted to show the viewer what this magnificent animal looked like after it had just completed a round of strenuous exercise. He got the idea to add foam to the horse’s nostrils to help him in conveying the look of equine exertions. But try as he might, he was unable to get just the right look. He spent hour after hour in futile effort. His rage mounted steadily. He would apply some paint, and then scrape it off: nothing seemed to give him the picture he was aiming for.
Finally, in a fit of desperation and frustration, he grabbed the first thing within reach–a paint-soaked sponge–and flung it at his mural. The sponge just happened to strike the mural near the horse’s nostrils, and, to his utter shock, gave him just the right color pattern and image he was looking for. So Fortune intervened to do what he himself could not do. The sponge landing on the mural at just the right place, in just the right configuration, was the last act in the painter’s drama. And the final act of all is never considered late. When it comes, it comes; and its lateness does not diminish its impact or importance. Commenting on this story, Valerius says:
Quod ars adumbrare non valuit, casus imitatus est.
And this means: Chance finally revealed what art was not able to create.
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