JUDICIAL ASPECT OF HOMICIDE IN EARLY GREECE
Current views criticised: author’s theory based on distinction
between Achaean and Pelasgian societies: arguments from
survivals in historical times: meaning of δικασπόλοι βασιλῆες:
the Trial-Scene in the Homeric Shield of Achilles: origin of
trials for homicide.
In discussing the trial-scene which is found in Homer’s description of
the Shield of Achilles,[1] we were compelled incidentally to give, in
anticipation, the main results of our inquiries as to the existence, in
Homeric Greece, of tribunals for the trial of homicide. Previous writers
on the subject, who are unaware of the differences in the organisation
and nature of Pelasgian and Achaean societies, have naturally maintained
that homicide in early Greece was entirely a ‘private’ affair and
that trials for homicide only arose when a post-Homeric conception of
murder as a ‘pollution’ compelled an investigation on the part of kings
and nobles who were anxious to avert the wrath of the gods. Thus Bury
says[2]: ‘This notion of manslaughter [_i.e._ homicide] as a religious
offence necessarily led to the interference of the State. For when the
member of a community was impure, the stain drew down the anger of the
gods upon the whole community, if the unclean were not driven out.
Hence it came about that the State undertook the conduct of criminal
justice.’ Jevons[3] propounds a similar view, though he apparently finds
more difficulties in the Homeric text. ‘There was, indeed,’ he says,
‘no State power to which the relatives of the deceased could appeal for
redress, much less was there any State power which of its own motion
undertook to apprehend and punish the murderer. But in Homeric times a
feeling was gathering that murder was an offence against the members of
the community in their collective capacity.’ Bury’s general view-point
is that homicide was the only crime which called for State interference,
and that there was no such interference before the doctrine of pollution
arose. Other ‘crimes,’ he thinks, continued to be ‘private’ affairs
until the centralisation of government brought it about that the injured
party, before punishing the offenders, had to seek State authorisation
in the form of trial, but in such cases the State never acted on its own
initiative or responsibility. ‘It must be borne in mind,’ he says,[4]
‘that, in old days, deeds which injured only the individual and did not
touch the gods or the State were left to the injured person to deal with
as he chose or could. The State did not interfere. Even in the case of
blood-shedding it devolved upon the kinsfolk of the slain man to wreak
punishment upon the slayer. Then, as social order developed along with
centralisation, the State took justice partly into its own hands: and the
injured man, before he could punish the wrong-doer, was obliged to charge
him before a judge, who decided the punishment. But it must be noted
that no crime could come before a judge unless the injured person came
forward as accuser. The case of blood-shedding was exceptional, owing
to the religious ideas connected with it. It was felt that the shedder
of blood was not only impure himself, but had also defiled the gods of
the community: so that, as a consequence of this theory, manslaughter of
every form came under the class of crimes against the religion of the
State.’ Bury does not define precisely the time at which homicide became
a religious offence, but from this and other references we assume that
he regarded the period as post-Homeric. Thus he says[5]: ‘According to
early custom which we find reflected in Homer, murder and manslaughter
were not regarded as crimes against the State, but concerned exclusively
the family of the slain man.... But gradually, as the worship of the
souls of the dead and the deities of the underworld developed, the belief
gained ground that he who shed blood was impure and needed cleansing....
This notion of manslaughter as a religious offence necessarily led to
the interference of the State.’ We admit, of course, that there could
not have been State trial before the State came into being; but the
notion that there were no ‘trials’ before the days of ‘State trial’ is,
we think, one of the delusions which modern minds have derived from the
legacy of feudalism. Bury admits the existence of religious courts before
the period of State courts, but he apparently forgets the courts of the
clan, of the phratry, and of the tribe.
It is frequently suggested that the right of sanctuary is the ultimate
origin of the trials and negotiations which came to be associated with
homicide. ‘Among the Greeks,’ says Gilbert,[6] ‘when blood was shed,
the relatives of the murdered man usually set themselves to wreak
vengeance on the murderer. If he did not quit the country immediately, he
could only secure himself by taking refuge in a sanctuary until he had
made compensation to the relatives of his victim. From his sanctuary,
protected by the right of asylum, he could enter into negotiations with
them as to what compensation must be paid. When the State took into its
own hands the regulation of vengeance for bloodshed, it respected the
right of sanctuary in so far that the three places[7] of trial were
connected with three sanctuaries.’ Now we can find no evidence for the
operation of a right of sanctuary in Homer. Hence this theory of Gilbert
would compel us to believe that not only murder trials but even wergeld
payments were of post-Homeric origin!
Glotz,[8] in a passage which we have already quoted, refuses to see in
the subjugation of blood-lust which is involved in the acceptance of
wergeld, any suggestion of the interference of ‘social justice,’ whether
to impose or advise a settlement, or to fix the amount of compensation.
He holds, moreover, that in no case is exile authorised: that it is
always a flight from the natural penalty, which is death. ‘L’exil,’ he
says, ‘dans ces conditions, n’est pour le meurtrier ni une peine ni un
droit, mais une mesure de prudence ... on ne peut obtenir l’autorisation
de s’en aller tranquillement ni de revenir jamais.’[9] It is only, he
implies,[10] when the idea of pollution abolished the arbitrary nature
of State jurisdiction that the offended party was forced by public
opinion to accept the customary wergeld. It is only then that a person
wrongly accused could appeal to judges who must hear the case. Thus
he says: ‘C’est un fait assez fréquent dans l’histoire qu’à l’origine
de la législation sociale il y ait une révolution religieuse ... mais
la révolution qui en résulta fut diffuse. Elle ne fut personifiée que
par un dieu. Vers les temps où la Grèce commence à se purifier et à
demander au ciel un supplément de justice pour la terre, elle voit sur
son horizon rayonner d’une lumière inconnue le sévère et doux guérisseur
du mal et de la souillure, Apollon.... Il exige que tout crime soit expié
et s’en prend au peuple qui manque à ce devoir.... L’expiation, il la
fait consister, chaque fois qu’il peut, à élever un sanctuaire: par là
il donne aux dieux leur part de la ποινή et aux juges la première idée
de l’amende, en même temps qu’il multiplie les lieux d’asile et fait
servir l’homicide même à sauver des vies humaines.... Tandis que le
droit religieux absorbait la plus grande partie de la θέμις familiale
pour la transmettre à la δίκη sociale, la juridiction de l’Etat perdait
son caractère d’arbitrage.... Sous la pression de l’opinion publique
... l’offense fut tenu de plus en plus strictement d’accepter une
transaction aux conditions modérées de la coutume ... l’offenseur qui
trouvait exorbitantes les exigences de l’offensée put rejeter une αἴδεσις
trop onéreuse: l’innocent qui ne croyait devoir aucun dédommagement
put refuser le paiement d’une ποινή injuste, sans craindre la mort ou
l’exil.... Le recours en justice, de facultatif qu’il était, devint
obligatoire par sa fréquence même. A ce moment, le tribunal des gérontes,
sentant son pouvoir plus ferme, franchit par un empiètement fatal et
naturel les limites étroites où sa compétence était primitivement
circonscrite.... La juridiction criminelle est créée.’
We shall see later[11] how impossible it was that wergeld could have
continued to exist in days when the murderer was polluted. We admit that
the Apolline murder-code did absorb much of the clan-customs in regard to
homicide (_la θέμις familiale_). But from the account which we have given
of the wergeld system,[12] it must be obvious how very non-arbitrary
was the jurisdiction of the clans. In our view, the evolution of early
Greek judicial authority is not a transition from a crude arbitrary
local jurisdiction to an efficient central compulsory jurisdiction,
but rather a gradual extension to wider areas, in accordance with
increasing political synoekism, of the judicial functions which had been
previously discharged with equal authority within smaller areas.[13] The
court of Elders, to which Homer refers in his description of the Shield
of Achilles, was, in our opinion, a city-state court. We may call it
merely a city court if we wish to retain the word ‘State’ to denote a
political unit exercising authority over a substantial territorial area,
and it is in this sense that the word ‘State’ is generally used: but F.
de Coulanges has shown that the difference between the ancient ‘city’
and a ‘State’ was one of degree, not of kind. The ancient ‘phratry’
was, he says,[14] ‘a small society modelled on the family.’ Maine,[15]
speaking of the primitive Indian Village Community, says: ‘The Community
is more than a brotherhood of relatives and more than an association
of partners. It is an organised society, and besides providing for the
management of the common fund, it seldom fails to provide, by a complete
staff of functionaries, for internal government, for police, for the
administration of justice, and for the apportionment of taxes and public
duties.’ So, we think, the court which Homer describes had the highest
jurisdiction in all matters of serious dispute, whether within the city
proper or in rural areas which were politically united with the city.
The elders of the trial-scene were, we think, tribal chieftains, like
the Attic tribe-kings (φυλοβασιλεῖς), and their main function was to
arbitrate, but with full authority, in cases of dispute between people
of different clans or phratries. Inside the clan, and probably inside
the phratry (a group of neighbouring clans), similar assemblies of
interested and responsible persons would have decided disputes between
members of their associations. The only judicial change which synoekism
and the growth of State-power involved was, therefore, an extension of
the area of jurisdiction, and an increase in the number of people who
had the right, if not the duty, of referring their disputes to a common
authority. But this new central court of justice was neither incompatible
with, nor destructive of, the more primitive local courts. Coulanges[16]
maintains that Plutarch and Thucydides are wrong in the assertion that
Theseus abolished the local magistracies of Attica. Gilbert[17] admits
that the Attic tribe-kings still functioned as judges in inter-tribal
disputes, in historical Athens. It is quite possible that, in early
times, there was no right of appeal outside the tribal court for members
of the same tribe. There is a law[18] of an Anglo-Saxon king of tribal
England which decrees: ‘Let no man apply to the king unless he may not be
entitled to justice within his “hundred.”’
The judicial system of the Homeric epoch is complicated by the presence
of the quasi-feudal Achaeans, who sometimes hear appeals in cases of
‘petty family disputes’ among the natives, but who, amongst themselves,
obeyed the short and swift decrees of military courts or councils of war.
We have said[19] that there is a suggestion of Achaean arbitration in
the Euripidean legend in which Hecuba appeals to Agamemnon to justify,
after the event, her punishment of Polymestor, the slayer of her son.[20]
Assuming the view of Leaf[21] that the Achaeans did not interfere with
the ‘group-system’ of the Pelasgians, we may for the moment ignore the
presence of the Achaeans, though it is the predominance of that caste in
Homer which has misled modern scholars in their opinions of the early
Greek judicial system. We shall now examine some interesting survivals
of clan-courts in the days of Plato and Demosthenes, so that we may
realise more clearly the nature and the functions of the local courts of
the ‘group system,’ courts which Homer almost ignores, which he would,
perhaps, have entirely omitted to mention, if the Pelasgian craftsmen who
fashioned the ‘Shield of Achilles’ had not engraved upon the Shield a
picture of a Pelasgian Court of Elders, which was a familiar event in the
everyday life of the cities and tribes of the subject-race.
HISTORICAL SURVIVALS OF CLAN COURTS
The first instance of ‘survival’ which we shall cite is mentioned by
Glotz,[22] and in justice to him we must point out that we differ from
him, not in regard to the question of the existence of clan-courts, but
in regard to the nature of their judicial functions in the matter of
homicide. Glotz is not aware of the distinction between the Pelasgians
and the Achaeans, or of the importance of the group system in the
Pelasgian civilisation. He admits that there existed within the clan
a regular tribunal, composed of heads of families, who consulted and
decreed, with absolute authority, on all matters affecting property, such
as adoption, inheritance, expulsion, and marriage. He quotes Plato[23]
for a procedure which, he presumes, was a general characteristic of the
clans. We have seen that homicide, in default of wergeld, was commonly
punished by exile or banishment. The following is Plato’s description
of an expulsion from the clan: ‘For him upon whom there has come a
desire, by no means fortunate, whether just or not, to release from
relationship to himself one whom he has begotten and brought up, let
it not be lawful to do this upon slight grounds or without delay; let
him first bring together his own relations as far as his cousins, and
also those of his son on the mother’s side, and let him accuse his son
before them and prove that he deserves completely to be expelled from
the family—and let him allow his son to prove equally that he does not
deserve to suffer anything of the kind; and if the father can persuade
and secure the votes of more than half all the relations (father, mother,
son, and minors not voting),[24] then let it be lawful for the father
to renounce his son: but otherwise not.’ It is most important to note
here the reference to the presence of the son’s maternal relatives, for
this implies an assembly of the clan or wider kindred, not merely of
the gwely or descendants of a common living ancestor. It was this wider
kindred which paid and accepted wergeld, even though they had not all a
right of succession to family property. In the early clan system,[25]
wergeld was part of the common stock which was inherited by all the wider
kindred, and therefore decrees of expulsion, such as were pronounced, for
instance, in default of wergeld payment, were matters for the decision of
the whole clan rather than for those of the gwely or the ‘family.’ That
such a procedure should have survived in Plato’s time, when property
had to a great extent become ‘private’ in the modern sense, and when
the political power of the clans had long since vanished into thin air,
shows at once the tenacity of clan custom and the significance of Plato’s
account as an argument from survivals.
Plato has another reference to a clan court, to which Glotz has not
referred and which seems to us to furnish a splendid illustration of
the manner in which minor issues, which affected merely the members of
a local kindred, remained within the scope of clan jurisdiction even
in historical Athens. We shall see later[26] that, owing to religious
influences, kin-slaying became too serious a matter for the adjudication
of clan tribunals from the seventh century B.C. onwards. Even minor
cases of bloodshed such as ‘wounding with intent’ had probably, in
historical times, been transferred to the jurisdiction of an Attic state
court, called the Areopagus.[27] The clan court to which Plato refers,
in the present instance, seems to have had power to try and to punish
the wounding of a kinsman by a kinsman, in a passion; it is presumed,
however, that the wound was not sufficiently grave to interfere with
military service. Plato says[28]: ‘If one kinsman[29] wounds another ...
let the heads of families[30] (_i.e._ the elders) and the male and female
kindred, as far as the cousins[31] on the male and female side, come
together and having tried the case deliver the offender to his natural
parents to fix the fine[32]: and if the fixing of the fine be a matter of
doubt, let the kindred on the male side fix the fine definitely; and if
they are unable to decide, let them eventually refer the matter to the
“guardians of the laws.”’ Plato goes on to say that where children wound
their parents (presumably in a passion) the judges must be over sixty
years of age, none of them must be a relative of the offender, and they
may fix the punishment, which may include death.
We have already hinted[33] that the discrimination between degrees of
guilt in homicide cases, which is extremely minute in the laws of Plato,
and which is present in a cruder form in the Draconian code, finds
its ultimate origin in the old customs of tribal life. Bearing this
hypothesis in mind, we are not surprised to discover that such matters
as wounding _without intent_, which is not mentioned in Dracon’s code
and which therefore was not a matter for compulsory prosecution in Attic
state courts, can nevertheless be subjects for adjudication in the courts
of the clans. Of course, the ‘guardians of the laws’ whom Plato mentions
are technically officers of Plato’s ideal State, but the main factors
in the trial are doubtless derived from actual clan tribunals which
operated in Plato’s own experience, unless the ‘guardians of the laws’
are to be interpreted as symbolical of the appellant jurisdiction of the
State. Glotz, of course, thinks[34] that at no time was kin-bloodshed a
matter for Greek State courts, but we shall see, later, that this view
is most probably incorrect. Plato insists that the judges who condemn to
death the child who is guilty of wounding its parent must not be akin to
the child. This principle need not imply that the judges must have been
State judges. In the phratry and in the tribe one could find many men
over sixty years of age who were not akin to such an offender. The fact
that these judges in historical times had the power of condemning an
offender to death is probably to be attributed to a survival of tribal
jurisdiction in cases where that jurisdiction had not been definitely
arrogated by the State.
A further instance of the survival of clan and phratry courts may be
found in the law of Dracon[35] which prescribed a collective decree of
‘appeasement’ in cases of involuntary homicide. The law may be freely
translated thus: ‘Let there be “appeasement” if there is a father or
brother or sons (of the victim): let all agree or let one objector hold
the field; if there be none such, let all the kinsmen within the degree
of cousin (be appeased) if all consent to be appeased; if there are
none of these, and the slayer slew involuntarily, let ten phratores be
appeased if all consent to be appeased.’ The procedure here prescribed
applied only to involuntary homicide. Before the ‘appeasement’ a period
of exile had to be completed by the slayer.[36] It is not a case of
_accidental homicide_, which involved no punishment.[37] Glotz[38] argues
that the phrase ἅπαντας ἢ τὸν κωλύοντα κρατεῖν implies a universal clan
consent; but it is obvious that the law is satisfied by the consent of
groups within the clan or (in default of these) of the consent of ten
phratores, who were members of the same local religious union. The only
point we wish to make here is that in this survival of the consent of the
kindred for the abolition of a feud caused by involuntary homicide we
have all the elements which would have constituted a homicide tribunal in
days before the encroachment of State power. It can only be a survival
of a wergeld system of vengeance, as in this system alone is there found
a minute arrangement for payment and receipt according to the different
degrees of kinship. A similar law of clan-consent governed the rights
and duties of _burial_, even in the time of Demosthenes, and is appealed
to as evidence for the right of succession to property. Demosthenes thus
quotes[39] a law of Solon: ‘it shall not be lawful for any woman under
sixty years of age to enter into the chamber of deceased or to follow the
corpse when it is carried to the tomb except those within the degree of
cousins’ children.’ A law of Dracon[40] decreed that after burial of a
murdered man ‘proclamation shall be made to the homicide in the market
place by all the relatives within the degree of cousin; and cousins and
children of cousins and sons-in-law and fathers-in-law and phratores
shall prosecute.’ Here we have a clear picture of the solidarity of
the clan. The presence of the φράτορες, too, is significant. They
were strictly outside the clan, as each phratry included members of
neighbouring clans who were bound together by a common extra-clan
worship. In this co-operation of the φράτορες we plainly see a natural
basis for discussion and negotiation in blood feuds between different
clans; this co-operation extended also, in certain cases, to the tribe
and, after a coalition of tribes, to the ‘ancient city.’[41] Thus
Glotz[42] rightly says: ‘La famille fictive suit les principes de la
famille naturelle.... On dirait que le groupe a conservé, en souvenir
d’une parenté primitive, en vertu d’une parenté théorique, un droit
éminent sur les biens de chacun.’
So Fustel de Coulanges points out that just as each _gens_[43] or clan
had its own tribunal and chief, so also the phratry[44] had its own
phratriarch, assemblies and tribunals. ‘It was,’ he says, ‘a small
society modelled on the family,’ and the tribe[45] had, as chief priest
and judge, a tribe-king (φυλοβασιλεύς), and held assemblies whose decrees
bound all tribesmen. The nature of such tribal conventions and decrees
is further illustrated by a passage in Demosthenes, to which Coulanges
refers.[46] In a speech against Theocrines,[47] Demosthenes narrates how
the fellow-tribesmen of Theocrines convicted him of the embezzlement of
tribal funds and punished him by a fine; and he was forbidden by State
law to prefer any indictments against any citizen until he had paid
this fine, as in the meantime he was regarded as a State debtor. The
decree was moved against him at a tribal meeting by a certain Scironides
and the fine proposed was seven minae.[48] From such passages as this
Coulanges[49] argues that Plutarch and Thucydides are mistaken when they
say that Theseus destroyed the local magistracies after the synoekism of
Attica. This Demosthenic passage indicates clearly the survival of courts
whose primeval jurisdiction had been largely superseded by that of the
State.
Apart from those arguments which are based on the survivals of tribalism,
it is logically probable that since homicide in Pelasgian society was
normally atoned for by the payment of a collective wergeld penalty, which
affected the property of at least two clans, and since the judicial
machinery of Pelasgian tribes was such that it would ordinarily have
been set in motion for adjudication in disputes regarding property,
homicide was therefore a fit and proper subject for investigation by such
tribunals.
THE SHIELD OF ACHILLES AND THE ROYAL JUDGES
Homer, in describing the Shield of Achilles, happens to mention a
court which is appealed to in a dispute concerning wergeld, and such
a reference is as complete a confirmation of our hypothesis as can
reasonably be expected.[50] We have already given what we consider to be
the correct interpretation of this passage. The Elders were Pelasgian
tribal chieftains, who frequently came together and sat upon polished
stones, ‘in a sacred circle,’ holding in their hands the sceptre of
authority. It is quite probable, as Leaf[51] suggests, that two of the
Elders acted as ‘advocates,’ and it is almost certain[52] that the two
talents of gold which are mentioned were a kind of advocate’s fee which
was deposited by both litigants in order to encourage the advocates to
give a proper exposition of the unwritten code of the tribes. The fact
that the dispute concerned the payment of wergeld, and not the reality
of guilt, does not warrant the conclusion that the court of Elders could
not have functioned, if it were necessary, as a murder court. It is true
that in the group system of primitive tribal life there was never very
much difficulty in establishing the identity of the murderer; but it is
equally true that if an accusation was challenged or disputed, there must
have existed a court whose decision would have been accepted as final:
we cannot conceive an entire clan agreeing to pay the wergeld of 120
cows if the person who was accused of homicide had assured his own clan
court that he was innocent. Now the Elders of the Homeric trial-scene
would normally have adjudicated in cases of homicide between the members
of different tribes; and it is possible that they would have heard
appeals from tribal or phratry courts, in the event of disagreement
about inter-tribal cases. The Elders are therefore the _real_ δικασπόλοι
βασιλεῖς of the Homeric society. The fact that the Achaean kings are
credited with this _title_ in Homer does not prove that they ever
functioned as such. Leaf[53] thinks that they might have consented to
hear appeals in isolated instances, but the title δικασπόλος is one
which could frequently have been applied without very much significance
to Achaean feudal lords who possessed a theoretical supremacy in Greek
jurisdiction. Within the Achaean caste, these lords revealed no interest
nor did they acknowledge any obligations in the judicial aspect of
homicide. On the contrary, they frequently gave their daughters in
marriage to murderers! We think, therefore, that Leaf would not now find
so much difficulty in the absence of a ‘king’ in the Homeric trial-scene
as he did in 1883.[54] It is not certain, of course, in what Greek areas
Pelasgian groups still retained Pelasgian kings. The Minoan kings of
Mycenae, Lacedaemon, and Thessaly, and other districts disappeared in the
Achaean conquest. Still there survived a few Minoan or Pelasgian kings
who lived in friendly alliance with the Achaeans, and who could still be
truly described as defending ‘the Zeus-given θέμιστες.’ But it is also
true that at the time of the Trojan war the Achaean lords would have come
to be regarded as the ‘heaven-sent guardians of law,’ through the mere
fact that they were ‘kings.’
Maine[55] thinks that the θέμιστες (customs) of the Homeric age were
isolated judgments delivered without any orderly sequence or precedent.
But Glotz[56] insists that the word θέμις is peculiarly applicable to
tribal custom, as opposed to the terms δίκη and νόμος. We believe that
the word generally refers to Pelasgian traditions.
In the _Iliad_[57] we are told that Zeus is wrathful against men who
judge crookedly in the Assembly, and drive out Justice. Who are these
men? They may, of course, be Achaeans, but we think it more probable that
they are the judges, and therefore the chiefs, of Pelasgian tribes—judges
whose tribal successors were accused of corruption in the days of
Hesiod,[58] when the Achaeans were no more. In Homer two talents of gold
were offered as a reward for an advocate’s successful pleading, and the
advocates were probably chosen from the same caste as the judges. From
this it is but a short step to bribery and the corruption of justice.
Hence we can understand the words of Hesiod: ‘The people pay for the
folly of their kings, who with ill thoughts wrest aside judgments,
declaring falsely. Beware of these things, ye kings, and set straight
your speech, bribe-devourers, and utterly forget crooked judgments.’
And again[59]: ‘There is the noise of the haling of Justice wheresoever
bribe-devouring men hale her, adjudging dooms with crooked judgments.
And she followeth weeping, clad in mist and fraught with doom, unto
the city and the homes of men who drive her forth.’ In ancient society
social law is inseparable from religion; as Coulanges puts it[60]: ‘To
disobey law is sacrilege.’ The law was regarded as the exclusive secret
of the hereditary nobility,[61] who alone could interpret it and whose
decision was final. The opportunities for profit-making and bribery in
such a system must have been innumerable. In later times when democracy
asserts itself the less-privileged orders,[62] championed sometimes by
tribal or quasi-feudal kings, sometimes by usurping tyrants, equipped
with mercenaries, compelled the ‘Elders’—that is, the old patriarchal
sacerdotal nobility—to codify their laws and to admit to judicial power
the ‘new nobility’ of wealth and the ignoble proletariat. The old
nobility came then to be distinguished for the integrity of its judicial
character, partly because it had lost its monopoly of power, partly
because corruption could no longer be practised with impunity.
ORIGIN OF HOMICIDE COURTS
From what has been already said[63] it must be sufficiently clear
what was, in our opinion, the origin of murder-trial in early Greece.
The local courts of clans and tribes constituted a nucleus for the
development of central State courts when civic groups emerged into
being through political synoekism. Homicide was a proper subject for
litigation, in the tribal wergeld system, simply because the normal
penalty involved a transfer of collective property or the expulsion of a
tribesman. If then phratry-courts had to decide issues between different
neighbouring clans, if tribal courts had to decide disputes between
clans of widely separated localities, is it not natural to suppose that
the State courts of synoekised areas would have adjudicated in disputes
between members of different tribes? Hence the judicial assembly of
tribe-kings (φυλοβασιλεῖς) constituted a more or less important State
court from the most remote antiquity. In historical Athens, Aristotle[64]
assures us that they still judged, at the Prytaneum, indictments
concerning animals and inanimate objects (δικαὶ ἀψύχων). Glotz[65] says
of the Prytaneum Court: ‘Il semble même qu’il ait été le premier et
longtemps le seul tribunal d’Athènes.’
Let us now consider some other hypotheses as to the origin and evolution
of homicide-courts. Glotz and Bury are in agreement in supposing
that wergeld was abolished, not by the Apolline religion, but by the
establishment of State power: though, in so far as it was the Apolline
doctrine of ‘pollution’ which compelled the State to interfere, they
would be compelled to admit that Apollinism contributed to the abolition
of wergeld if it did not directly abolish it. Glotz, in particular, is
anxious to establish a novel theory of his own,[66] to the effect that
it was Solon, not Dracon, who abolished wergeld! The only reason he
gives is that Solon’s general policy was opposed to clan-jurisdiction
or clan-power exercised to the detriment of the State. This opinion we
shall discuss in its proper place.[67] But there is an important element
of truth in the Glotz-Bury position which must be clearly indicated. We
have said that the original Pelasgian State courts very probably heard
disputes in regard to homicide, at least between members of different
tribes. Now, tribal society is based on a close exclusive aristocracy of
birth. Strangers may be received with temporary hospitality, but their
adoption into the permanent life and privileges of the tribe was a matter
of great difficulty.[68] Every tribe contained a gradually increasing
number of ‘hangers-on,’ lackland men, bondsmen, serfs, and casual
vagrants, who may be regarded as the nucleus of the plebeian movement
which in many cases culminated in democracy. The growth of commerce in
the seventh century, the invention of coinage, migration and colonisation
led to the rise of a new aristocracy of wealth[69] as distinct from
birth. Many of the ‘new men,’ who now were very powerful, did not belong
to the old aristocratic tribes. In cases of homicide between members of
this new group, who would act as judge? The tribe-kings regarded such
a group as entirely outside their caste. For such a group there was
neither religion nor law nor justice. Hence they probably resorted to
what we have described as unrestricted vendetta. It was precisely at
this juncture, as we think, that the new religion of Apollo, with its
quasi-Asiatic doctrine of murder as a ‘pollution,’ came to Greece. Murder
now became a ‘sin’ against the State gods. If unpunished, it brought
upon the State the anger of its gods. State courts were now compelled
to sit in judgment on all cases of homicide which occurred within the
State: no longer were the tribes permitted to adjudicate for intra-tribal
slaying. They could still hold ‘minor investigations’ at their local
Prytaneum; though we cannot agree with Müller and Philippi in describing
as a ‘mock-trial’[70] their investigations into the guilt of animals and
inanimate objects (δικαὶ ἀψύχων). But the man ‘who shed man’s blood’ had
now to appear before the central tribunals of the State: all men had to
appear, not merely the aristocratic heirs of tribal privilege. This, in
our view, is what happened in the seventh and sixth centuries B.C. In
the circumstances of the time it was an event of incalculable utility
to Greek societies. But the lustre of the event and the chaos which it
terminated have dazzled the minds of modern thinkers so much that they
forget the older and, for the period of its power, the equally effective
vigour of the courts of the tribal State. _Thus, what Glotz and Bury have
attributed to the evolution of State power is really to be attributed to
the new non-tribal democracy and the religion of Apollo._
The view of Gilbert and Köhler,[71] and, we may add, of Müller,[72] which
places the origin of trials for homicide in the conception of bloodshed
as a sin and in the respect for sanctuary, remains for discussion. Müller
is, we think, mistaken in supposing that bloodshed was sinful from the
earliest dawn of Greek society, and that wergeld originated in the
purgation-ritual.[73] This opinion we shall criticise at length in the
next chapter. Gilbert’s conception that the right of sanctuary existed
from immemorial antiquity and was a necessary preliminary to wergeld
negotiations cannot be harmonised with the evidence of the Homeric poems
or with the customs of other analogous tribal peoples. We shall find,
indeed, in Euripidean legends evidence of the efficacy of sanctuary to
protect[74] the suppliant, but we also find evidence that it was potent
merely to delay[75] the inevitable doom. In Homer there is no suggestion
that an Achaean would have ever heeded, or that a Pelasgian would have
ever needed, such a refuge. Quick vengeance, permitting, as Demosthenes
says,[76] no κρίσις between φόνος and τιμωρία, is not a characteristic of
the tribal wergeld system. In regard to later times, Gilbert says that
‘when the State took into its own hands the regulation of vengeance for
bloodshed it respected the right of sanctuary in so far that the three
places of trial were connected with three sanctuaries.’ He refers, we
presume, to the Attic courts known as the Areopagus, the Palladium, and
the Delphinium. But the connexion of these courts with local temples may
be otherwise explained. Coulanges[77] points out that the assembly-place
of the Roman Senate, which was a judicial as well as an administrative
council, was always a temple. We shall see later that the murderer in
the ‘pollution’ period was debarred from any contact with a temple under
most serious penalties. We must then defer to a subsequent stage of our
work[78] the final refutation of Gilbert and of Müller and the complete
exposition of our own hypothesis as to the origin and evolution of the
Attic murder courts.
FOOTNOTES
[1] _Il._ xviii. 497-508; _supra_, p. 34 ff.
[2] _History of Greece_ (2nd ed.), p. 172.
[3] _Manual of Greek Antiquities_, p. 406.
[4] _Op. cit._ p. 145.
[5] _Op. cit._ p. 172.
[6] _Gk. Const. Ant._, Eng. trans., p. 379. So, Köhler, _Herm._ 6. 102,
there quoted.
[7] _i.e._ in Attica.
[8] P. 115; _supra_, p. 33.
[9] Pp. 51, 52.
[10] Pp. 237-8.
[11] _Infra_, Bk. II. chap. ii.
[12] _Supra_, p. 6 ff.
[13] See _infra_, pp. 243 ff., 262 ff.
[14] _Op. cit._ p. 157.
[15] _Ancient Law_, p. 217.
[16] P. 173.
[17] _Op. cit._ p. 150.
[18] Stubbs, _Select Charters_, p. 73.
[19] _Supra_, p. 38.
[20] _Hecuba_, 1135-1255.
[21] _H. and H._ p. 258.
[22] _Op. cit._ p. 42.
[23] _Laws_ xi. 929 A-C.
[24] Reading ὅσοιπερ ἂν ὦσι ... μὴ τέλειοι.
[25] _Supra_, p. 8.
[26] _Infra_, pp. 230, 236 ff.
[27] Aristotle, _Ath. Pol._ 57.
[28] _Laws_, ix. ch. 15.
[29] ὁμόγονος.
[30] Reading: γεννήτας.
[31] ἀνεψιῶν.
[32] τιμᾶν.
[33] _Supra_, p. 57.
[34] P. 322.
[35] See Dareste-Reinach, _I.J.G._ xxi. 13-19, where ἐσέσθων (from ἔσίημι
= permit to return from exile) is found instead of αἰδεσάσθων apud Dem.
_c. Macart._ 1069 (57); Glotz, p. 313; _infra_, pp. 193, n.; 205.
[36] See _infra_, pp. 178 ff., 187, 211 ff.
[37] See Dem. _in Aristocratem_, 637.
[38] _Op. cit._ p. 313.
[39] _Contra Macart._ 1071.
[40] _Ibid._ 1069.
[41] See Coulanges, _op. cit._ p. 157 ff.
[42] _Op. cit._ p. 194.
[43] _Op. cit._ p. 137.
[44] P. 157.
[45] P. 158.
[46] P. 158.
[47] 1326 (Reiske).
[48] About £28.
[49] _Op. cit._ p. 173.
[50] _Il._ xviii. 500.
[51] See note on passage in edition of _Iliad_ (1902), p. 611 ff.
[52] Maine, _Ancient Law_, p. 313; _supra_, p. 40.
[53] _H. and H._ p. 47.
[54] _Supra_, p. 34 ff.
[55] _Ancient Law_, p. 7.
[56] Glotz, p. 237.
[57] See _Il._ xvi. 386-8.
[58] _W. and D._ 260.
[59] 220 ff.; see also 40.
[60] _Op. cit._ p. 249.
[61] _Ib._ p. 336.
[62] Coulanges, _op. cit._ pp. 314, 338.
[63] _Supra_, p. 81 ff.
[64] _Ath. Pol._ 57.
[65] _Op. cit._ p. 190.
[66] P. 321 ff.
[67] See _infra_, pp. 179 ff., 222.
[68] Coulanges, _op. cit._ pp. 42, 195.
[69] P. 364.
[70] Philippi, _Areopag._, pp. 15-16; Müller, _Eum._ pp. 141-2; see
_infra_, p. 197.
[71] _Supra_, p. 80.
[72] _Eumenides_, p. 136 ff.
[73] Müller, _op. cit._ p. 123; see also Philippi, _Areopag._, p. 3.
[74] E.g. _Ion_, 1258, 1275, 1283, 1315.
[75] _Her. Fur._ 250, 715.
[76] _In Aristoc._ 640, 63.
[77] _Op. cit._ p. 217.
[78] _Infra_, Bk. II. ch. iii.