murder-laws of Attica—for the murder-laws of other Greek States we have
no direct evidence at all—is a fragmentary inscription of the year
409-8 B.C., containing a few lines written in the old Attic alphabet,
which, though ‘restored’ in a manner sufficiently satisfactory to
render it trustworthy and intelligible, gives us nevertheless the most
rudimentary information about the Attic murder-code. The real value of
this inscription has been indicated by Lipsius.[1] The fragments of
laws which are found on the inscription are so closely identical with
the corresponding portions of the Draconian laws as they are cited
by Demosthenes that they must, he says, be regarded as furnishing a
convincing proof of the validity of the remaining laws which Demosthenes
has cited. Now, these remaining laws are written in the Ionic alphabet,
which was used by Athenian writers in the fourth century and in the
latter half of the fifth century B.C., and it so happens that the date
of the change in the alphabet used in Attic inscriptions, namely, the
year 403-2 B.C., was also the date of what Glotz[2] describes as ‘la
grande révision législative qui signala l’archontat d’Euclide.’ If, then,
any changes occurred in Attic murder-law, in the period which elapsed
between Dracon and Eucleides, it was probably in the year 403-2 B.C.
that such changes were finally incorporated in the written code. We
shall see that there is no reference to the Areopagus in our fragment,
but it may of course have been mentioned in the missing portion of the
inscription which referred to wilful murder. Pollux and Plutarch[3]
state that the Areopagus was created by Solon. We shall see later[4]
what elements of truth this dictum may contain. The only change which
we believe to have been made in the period from Dracon to Eucleides was
the isolation of the Areopagus from the general list of the Ephetae
courts.[4] This change we attribute to Solon, and with this exception we
accept the murder-laws which are quoted by Demosthenes as the original
code of Dracon. We have already[5] argued against the theory of Glotz
that the clause μηδ’ ἀποινᾶν was a Solonian innovation. The alteration
which we attribute to Solon was not properly speaking a change in the
murder-code, but merely a change in the distribution of pleas in the
judicial system. Hence we accept the ancient tradition[6] that ‘Solon
changed all the laws of Dracon except those relating to homicide.’ The
Solonian legislation was less severe and more humane than Dracon’s code.
If Solon did not alter the murder-laws, it was probably because they
were, so to speak, so non-Draconian, because they did not bear the stamp
of Dracon’s own peculiar genius. They were, we have said,[7] an eclectic
codification of the unwritten laws of the Ephetae and the Exegetae.
Religiously consecrated by their joint tribal and Apolline inspiration,
they stood above the gales of Athenian political ferment. It was only
in the personnel of the judicial system that a loophole was left open
for political intrigue. In this respect alone was alteration easy and
obvious: and in this respect alone do we suppose that alterations took
place.
The original inscription of 409-8 B.C. consists of forty-eight lines, of
which six are undecipherable, and nine others badly mutilated. We will
give here just four of the best lines, from which the condition of the
remainder may be inferred.
11. και εαμ . εκ . ρονο..ς .τ.... ... .... ....... .ι
12. καζεν δε τος βασιλεας αιτ . ο . φο... ε... ... ........ .. ...λ
13. ευσαντα τος δ. εφετας διαγν.... ........ .... ... ..... ε
14. ι ε αδελφο. ε Ηυες Ηαπα.... ε το . .ο...... ..... ... .. .. .υ
The most important portion of the inscription, as restored by Köhler, is
given by Dareste,[8] and transliterated into the Ionic alphabet reads as
follows:
11. καὶ ἐὰμ μ’ ἐκ προνοίας κτείνῃ τίς τινα, φεύγειν, δι-
12. κάζειν δὲ τοὺς βασιλέας αἰτιῶν φόνου ἢ ἐάν τις αἰτιᾶται ὡς βουλ-
13. εύσαντα, τοὺς δὲ ἐφέτας διαγνῶναι, αἰδέσασθαι δ’ ἐὰμ μὲν πατὴρ ἦ-
14. ι ἢ ἀδελφὸς ἢ ὑῆς ἁπάντας ἢ τὸν κωλύοντα κρατεῖν. ἐὰν δὲ μὴ οὗ-
15. τοι ὦσι, μέχρ’ ἀνεψιότητος καὶ ἀνεψίου, ἐὰν ἅπαντες αἰδέσασ-
16. θαι ἐθέλωσι τὸν ὅρκον ὁμόσαντας. ἐὰν δὲ τούτων μηδεὶς ᾖ, κτεί-
17. νῃ δὲ ἄκων, γνῶσι δὲ οἱ πεντήκοντα καὶ εἷς οἱ ἐφέται ἄκοντα
18. κτεῖναι, ἐσέσθων δὲ οἱ φράτερες, ἐὰν ἐθέλωσι, δέκα, τούτους δὲ ο-
19. ἱ πεντήκοντα καὶ εἷς ἀριστίνδην αἱρείσθων. καὶ οἱ πρότερ-
20. ον κτείναντες ἐν τῷδε τῷ θεσμῷ ἐνεχέσθων .........
26. .. ........................ ἐὰν δέ τις τ-
27. ὸν ἀνδρόφονον κτείνῃ ἢ αἴτιος ᾖ φόνου ἀπεχόμενον ἀγορᾶς ἐφο-
28. ρίας καὶ ἄθλων καὶ ἱερῶν Ἀμφικτυονικῶν ὧσπερ τὸν Ἀθηναῖον κ-
29. τείναντα ἐν τοῖς αὐτοῖς ἐνέχεσθαι, διαγιγνώσκειν δὲ τοὺς Ἐφέτας.
30. τοὺς δὲ ἀνδροφόνους ἐξεῖναι ἀποκτείνειν καὶ ἀπάγειν ἐν τῆι ἡμεδ-
31. απῆι, λυμαίνεσθαι δὲ μὴ, μηδ’ ἀποινᾶν ἢ διπλοῦν ὀφείλειν ὅσον ἂν κ-
32. αταβλάψηι ..............................
37. ..... ἐὰν δέ τις φέροντα ἢ ἄγοντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενο-
38. ς κτείνηι, νηποινεὶ τεθνάναι.[9]
This inscription has been restored, mainly, from quotations in the
speeches of Demosthenes. But before attempting to translate it, we must
point out that even in its restored form the inscription is archaic and
obscure, and the meaning is not always certain. The first half of the
inscription seems to refer to involuntary or accidental homicide. But the
end of the second line, as it stands, cannot possibly be taken to refer
to accidental homicide, because the verb βουλεύειν usually means ‘to
plot’ or ‘to resolve,’ and therefore implies an element of deliberation.
Wilful murder is not expressly mentioned, save in so far as the slaying
of a homicide exile abroad is decreed to be equivalent to murder. There
is also a reference to justifiable homicide in self-defence. But most
of the fragment consists of an enumeration of the persons who are by
law entitled to share in the acceptance of gifts of ‘appeasement’ from
an involuntary slayer: and of the judges by whom the various kinds of
homicide must be decided. We do not believe that any judicial distinction
is intended in the use of the two verbs δικάζειν and διαγιγνώσκειν.
Both words mean, we think, ‘to adjudicate.’ There is no question of
preliminary investigation as distinct from final decision. In regard to
the second line, the restoration ὡς βουλεύσαντα can only mean ‘on the
ground of having plotted (to kill).’ Did the restorer mean by this clause
‘attempting murder’ (when death did not ensue) or ‘contriving murder’
(when death did ensue)? The noun βούλευσις can have both these meanings,
but the verb βουλεύειν cannot, we think, denote attempts to kill. If the
restorer meant ‘contriving murder,’ such an interpretation is open to the
following objections: (1) ‘contriving murder’ ranked with wilful murder
in Attic law, and was tried by the Areopagus, not by the Ephetae[10]: (2)
it is rightly maintained[11] that the presence of καί at the beginning of
the inscription indicates that a portion is missing, and it is natural
to assume that this missing portion contained the law relating to the
graver kinds of homicide, including not only wilful murder, but also
contriving murder. In order to obviate such objections, Philippi abandons
the verb βουλεύειν and proposes to read βουλεύσεως τὸν ἀεὶ βασιλεύσαντα,
‘the King-archon for the time being shall judge concerning attempted
murder.’ But this suggestion is open to the following objections: (1)
we are compelled to render διαγνῶναι (l. 13) ‘to adjudicate finally,’
and we do not think that it bears this meaning in the inscription; (2)
τὸν ἀεὶ βασιλεύσαντα is a very questionable Greek rendering for ‘he who
is King-archon for the time being’: (3) while it is true that attempted
murder was tried, in Aristotle’s time,[12] in the Palladium, it has no
real affinity with manslaughter. It is impossible to suppose that the
‘appeasement’ mentioned in the inscription could have ever been applied
in cases of attempted murder. It would be absurd to compensate relatives
who had lost nothing, and to ignore the person on whose life the attempt
was made. Demosthenes definitely cites[13] this law of ‘appeasement’ as
referring to manslaughter. Hence, as we believe that the second line of
our inscription refers to manslaughter and as λευσαντα (_sic_) is found
in the unrestored part of the inscription, we propose to restore μὴ
βου]λεύσαντα instead of ὡς βου]λευσαντα and understanding κτεῖναι with
αἰτιᾶται, we translate ‘if anyone accuses a person of slaying without
deliberate resolve.’
We will now suggest a translation of this passage, reading μή instead of
ὡς in the second line.
‘And if a man slays a man not with intent (to kill), let him be put
on trial (φεύγειν), and let the “Kings” judge of the causes of death,
or, if anyone accuses a person of slaying without deliberation (μὴ
βουλεύσαντα), let the Ephetae adjudicate. And the “appeasement,” if there
is a father or (and) brother(s) or (and) sons (of the slain), let all
(accept) or let one objector hold the field: if there be none of these,
let (the “appeasement” extend) to cousinship and cousins, provided all
consent to be “appeased” having sworn the (customary) oath: if there
be none of these (_i.e._ cousins) and if the man slays involuntarily,
and the Fifty-one, the Ephetae, decide that he slew involuntarily, let
ten phrateres permit his return from exile,[13A] if they (all) agree,
and let the Fifty-one select these (ten) according to birth (or rank
or merit—ἄριστίνδην), and let (all) previous slayers be bound by this
law: ... and if any person slays a manslayer or causes (_i.e._ plots)
his death while the manslayer abstains from the boundary markets and
from Amphictyonic games and festivals, let him be liable to the same
penalty as if he had slain an Athenian (citizen): and let the Ephetae
judge the case: ... it is lawful to kill manslayers or to arrest them,
in our territory (ἡμεδαπῇ) but it is not lawful to torture them or to
amerce them: the fine payable shall be twice the amercement: ... if any
person slays on the spur of the moment in self-defence a man who tries
by violence unjustly to rob and plunder him, let his act of bloodshed go
unpunished.’
Philippi[14] finds the reference to ‘the kings’ in this inscription
rather difficult to explain. He thinks that the allusion can only be
to archons, but he feels also that ‘it seems inadmissible to assume
collegiate functioning after the archonship became annual.’ He therefore
views with sympathy the extraordinary suggestion of Köhler, that τὸς
βασιλέας means τοὺς ἀεὶ βασιλεύοντας, that ‘the kings’ are ‘those who
from time to time held the office of king-archon.’ The solution of this,
as of other difficulties in the inscription, is, we believe, to be found
in a correct analysis of the word ἄκων, which means ‘involuntarily’ or
without intent.
Let us suppose that a man A caused the death of another man B. Obviously
this event could occur either (1) in an accidental manner, without
the least possible foresight or culpable neglect, as for instance in
a wrestling-match or in a javelin-throwing competition: or (2) in
circumstances which implied a certain amount of culpable neglect, or
ἀφυλαξία, because the slayer did not take the usual or the necessary
precautions—as, for instance, if a drug was administered, in illness, to
B, and A did not see to it that the drug was of the proper kind: or (3)
in a manner which involved a certain amount of intent or deliberation,
though not necessarily ‘malice aforethought,’ on the part of the slayer,
as, for instance, if A struck B in a drunken bout, or in a sudden fit of
anger, jealousy or revenge. Plato,[15] in the _Laws_, makes the clearest
possible distinction between these cases, and so does Antiphon[16] in
his _Tetralogies_. But the Greek words ἄκων and ἀκούσιος were applied
indiscriminately to all three cases!
The Greeks of historical times actually put on trial inanimate objects
which had slain a man. Why? Was it because these objects were regarded as
polluted and it was necessary to discover the extent of the pollution?
We do not think so, for such objects were either polluted or they were
not. There could have been no question of degrees of pollution. The
purpose of such a trial was rather, we think, to inquire whether the
objects were guilty or not. But why was this question of such importance?
Clearly because there was a human, as distinct from a divine, interest
in such trials. We suggest that these trials were instituted primarily
in order to establish the innocence of an accused man. In Greek law,
unlike modern law, it was necessary for a man to prove his innocence.
He could only do this, very often, by proving that somebody else,
or something else, was guilty. We do not agree with Müller[17] and
Philippi[18] in regarding these trials (δικαὶ ἀψύχων) as sham trials.
Presided over by five ‘kings,’ as Aristotle[19] assures us that they
were, they cannot have been so altogether meaningless and absurd. They
were, we think, almost as important as a modern Coroner’s inquest. Now,
who, we may ask, were the five ‘kings’ who sat at the Prytaneum ‘murder’
court in the time of Aristotle? They were, simply, the King-Archon,
and the four Phylobasileis, or Tribe-Kings, who still survived as the
religious and judicial representatives of the old Ionian tribes of
Attica. These kings are therefore the aristocratic descendants of the
Elders who ‘sat on smooth stones in a sacred circle,’ in the Pelasgian
Age.[20] The Prytaneum, as Glotz[21] points out, was the oldest court
at Athens. Coulanges[22] connects this court with the worship of the
ancestral-hearth; it was, he thinks, the divine ‘hearth-stone’ of the
nation, the source of its vitality, the symbol of its immortality. Yet
this court Müller and Philippi regard as a mock or sham-court, in which a
number of respectable but unintelligent nobles persisted in upholding the
obsolete traditions of a ridiculous past!
We believe that ‘the kings’ of the Prytaneum Court are identical with
‘the kings’ of our Draconian inscription. The first two lines of the
fragment refer, in our view, to accidental slaying, in which there
was no degree of guilt attaching to the human agent, but in which it
was necessary to prove that the guilt was attached to an animal or an
inanimate object. We think it quite probable that such cases were tried
at the Prytaneum.[23] We may go so far as to say that such cases were the
_raison d’être_ of the survival and the historical importance of such
a court.[24] The legislator, in our inscription, says: ‘If a man slays
another without intent, let him be put on trial, let “the kings” judge of
the causes of death’ (δικάζειν αἰτιῶν φόνου).
We shall discuss[25] later the function of the Ephetae judges who
are mentioned in this inscription as collaborating with the kings in
the judicial investigation of homicide-guilt, and we shall suggest
an explanation of the fact that they were invariably fifty-one in
number.[26] In regard to the adverb ἄριστίνδην, which means, in general,
‘according to excellence,’ we agree with Philippi[27] that in the context
it refers to birth rather than to social rank. The selection of the
phrateres would probably have been made from ‘brethren’ who were not
kinsmen of the slayer, but merely related by ties of ‘affinity’ or of
local contiguity with him. Plato[28] suggests that in certain cases of
homicide the judges of guilt (and probably therefore of atonement) should
not be akin to the criminal. The fact that the father and the brothers
(we assume that the singular form ἀδελφός includes all the brothers) and
the sons of the slain could, if unanimous, have accepted ‘appeasement’
and have legalised the manslayer’s return from exile, shows how far from,
and yet how near to, the wergeld customs of Pelasgian days were the
historical murder laws of Greece. Yet here we have not wergeld proper,
but only a survival, a reflection, of its ancient vigour. Nothing could
show more clearly than this law does the validity of our theory[29]
which finds in a ‘compromise’ between different forces the origin of the
historical homicide-code of Greece.
Glotz[30] holds that the objection of a single relative to ‘appeasement’
could neutralise the will of the other kinsmen because, if he were
obdurate, he could prevent the unanimity which was required by law for
such return. But we shall argue, later,[31] that while the relatives had
considerable legal powers if they were unanimous, they were probably
subject to superior control if they disagreed. It is difficult to suppose
that one bitter enemy amongst the relatives of the slain could, _in
practice_, have imposed a penalty of perpetual exile for manslaughter.
We have discussed[32] the theory of Glotz that ‘private settlement’ was
legal, even for wilful murder. How can Glotz reconcile such a theory with
this Draconian law which provided for[33] a trial and a verdict even in
cases of accidental slaying? According to our interpretation of the
restored inscription, the relatives of the slain may not always agree,
but the kings and the Ephetae must adjudicate in each case.
Glotz suggests,[34] further, that Dracon first introduced the distinction
between murder and manslaughter. Is this the view which is suggested
_prima facie_ by the restored inscription? To us it seems quite obvious
that the inscription assumes, as a familiar fact, an already existing
distinction, not merely between murder and manslaughter, but also between
manslaughter and accidental slaying. If the distinction appeared as a
legal innovation in the Draconian legislation, surely such a distinction
would have received some emphasis, since it would have been necessary to
enlighten an uncivilised public opinion; surely the definitions of the
various kinds of homicide would have been more clearly marked and the
penalties more clearly indicated.
Since the Draconian inscription has been restored from quotations in
Demosthenic speeches, we shall turn to those speeches for a more complete
account of Attic homicide law. But the Demosthenic references must be
supplemented from other sources—especially from Plato’s penal code.
HOMICIDE LAWS IN PLATO AND DEMOSTHENES
If we accept the opinion of Coulanges[35] that the synoekism of Attica
did not abolish the local prytanies and magistracies, it will be readily
conceded that the Athenian city courts, that is, the Attic State courts,
did not necessarily adjudicate in all cases of homicide. Owing to the
civic and religious aspect of wilful murder and kin-slaying—crimes which
involved the penalty of death or the confiscation of property—we may
feel certain that the State courts had exclusive jurisdiction in such
cases.[36] But we cannot be sure that the same principle applied to
manslaughter and minor degrees of guilt, except when such deeds occurred
between parties who had only one civic bond between them, namely, the
political union of the State. Most frequently, we admit, the parties
involved would be of such a kind. The rise of political democracy and
of a new nobility of wealth led to the accumulation, in the cities of
Attica, of a vast multitude of persons who did not belong to any of the
old tribes or religious corporations.[37] The common worship of the
clan, the phratry and the tribe did not receive their allegiance. Hence,
probably, the courts of such organisations would not, even if they could,
adjudicate in their case. But there survived in Attica, all through the
historical era, families who still belonged to these more primitive
groups. They were the old nobility, the country gentry, scattered over
rural Attica,[38] who continued to obey and, where possible, to exercise
the old jurisdictions of the clan, the phratry, and the tribe. We have
shown that local tribal courts still functioned, with State-sanction,
in historical Attica.[39] We have quoted a passage[40] from Plato which
suggests that some such local courts had power to condemn to death a
person who maliciously wounded one of his parents.
We agree with Müller[41] and Coulanges,[42] in opposition to Glotz[43]
and Philippi,[44] in the view that Plato’s _Laws_ are based, in the
main, upon the Attic legal codes. There are certain points in which
Platonic law seems independent of Attic law. Are these variations to be
attributed to the fancy of an idealist or are they rather a supplement,
an incorporation of local and tribal laws which the State codes did not
mention but always presupposed? So far as homicide at least is concerned,
we prefer the second alternative: and we shall give at a later stage the
reasons for our preference.
In describing the trial of inanimate objects and of animals which were
guilty of human bloodshed, Plato says[45]: ‘If a beast of burden or any
other animal shall kill any person (except in a public contest) let the
relatives (of the deceased) prosecute the cause of death: and let the
wardens of rural areas (ἀγρόνομοι) upon whom ... the relatives shall
impose this task, decide upon the matter: and let them destroy the
animal (if) condemned and cast it beyond the boundaries (of the State).
If any inanimate object deprives a person of life (except lightning or
such god-sent bolt ...) either by the person falling upon it or by its
falling upon the person, let the nearest of kin appoint the nearest
neighbour to act as judge, and (thus) free from pollution himself and
his whole kindred, and cast the condemned object beyond the boundaries.’
There is no mention of the Prytaneum Court or of the Tribe-Kings. We
can explain the omission by supposing that Plato is referring to local
courts and local cases of bloodshed, in which the relatives had not to
go outside their immediate neighbourhood to obtain jurisdiction. The
ancient phratry was an assembly of local clans: neighbourhood was the
essential factor in the bond which the phratry religion represented. The
‘nearest neighbour’ in this quotation would have been a member of the
phratry, if not of the clan, to which the slain person belonged. The duty
of prosecution which is here referred to was no sham duty[46]; it was a
serious religious obligation. Failure to prosecute would have ‘polluted’
the relatives of the slain.
So far there is no question of any human guilt. But such a question
might have easily arisen. In the Hebrew murder-code,[47] if an ox gored
a man to death, it was necessary to inquire whether the ox had been
‘let out’ by the owner, and whether the ox was previously ‘known to be
dangerous.’ If so, the owner could have been put to death, unless he
ransomed his life. Let us suppose, furthermore, that the object had not
‘fallen,’ but was such that it must have been ‘thrown.’ Two cases might
now arise: (1) the ‘thrower’ might confess that he threw the object,
say, a stone or a piece of wood, but at the same time deny that he threw
it with the intention of hitting, much less, of killing, any person: or
(2) the ‘thrower,’ guilty of intent to kill, might escape undetected,
perhaps concealed by a wall or a boulder or a shrubbery, from which he
had hurled the fatal missile. Thus, the trial of inanimate objects, and
also, but to a less extent, the trial of animals, might have had a close
connexion on the one hand with the question of accidental homicide,
committed by a human agent, and on the other with the question of ‘murder
by persons unknown.’ Upon the precise circumstances of each case would
have depended the question whether local magistrates and tribunals
would have possessed jurisdiction in the matter, or whether it would
have had to be referred to the central State authority at Athens. But to
this same authority would naturally also have fallen the decision as to
the guilt of animals or objects which had caused the loss of human life
within the city of Athens and its environs: and hence we can understand
why the central Prytaneum court had to adjudicate not only upon guilty
animals and inanimate objects, but also, and with much more serious
possibilities, upon murder by persons unknown.
In the case of objects which could only have proved fatal if they were
thrown by a human agent, a verdict of acquittal, in regard to such
objects, would have logically involved a verdict of murder by persons
unknown; for, if we suppose that the object was accidentally thrown, it
is probable that the thrower would have come forward and established
the blood-guilt of the object concurrently with his own innocence.
Demosthenes[48] says in regard to the Prytaneum court: ‘If a stone or
piece of wood or iron or anything of the kind falls upon and strikes a
man and we are ignorant who it was that threw it, but know and have in
our possession the instrument of death, proceedings are taken against
such instruments here.’ Plato asserts that the objects mentioned were
prosecuted by the relatives of the slain: but may we not also assume
that a man who had thrown one of these objects without malicious intent,
and who was accused of murder or manslaughter, would have lodged an
accusation against the ‘object’ at the preliminary inquiry[49] before the
King-Archon, that is, at the Prytaneum? If the Prytaneum found the object
guilty, would not the verdict have prohibited any further proceedings?
If, on the other hand, the object was clearly hurled by a human agent
with malicious intent, and if the agent was unknown, proceedings, of a
most formal kind, were taken against the unknown slayer.
Similar proceedings would of course be taken if there was no ‘object’
involved, as, for instance, in case of death by strangling. Such
proceedings are thus described by Plato[50]: ‘If anyone,’ he says, ‘is
found dead and the murderer is not known, and is not discovered by
careful search-parties, let there be proclamation against the murderer
as in other cases, and let the heir-at-law (_i.e._ the nearest relative
of the deceased) proclaim in the market-place that the murderer, whoever
he is, must not, since he is guilty of bloodshed, set foot in any sacred
place in his native State or in that of his victim, or if he does, and
he is discovered and identified, he shall be put to death and cast
unburied beyond the boundaries.’ We have already pointed out[51] that
the object and purpose of trials for homicide in Greece was not so much
the establishment of guilt, as it is in modern States, but rather the
establishment of innocence. Now, our last quotation from Plato suggests
that a man who came to be suspected of homicide some time after the crime
was committed, and who was never formally prosecuted and convicted,
could, nevertheless, be put to death! But we shall see[52] that one
refuge still remained to the ‘unfortunate wretch.’ He could have pleaded
innocence, in the presence of the avengers, and this plea compelled _ipso
facto_ a recourse to trial: he could of course be arrested on the spot
and imprisoned, but he could challenge a verdict at a court of summary
jurisdiction, the prison court, known as ‘the Eleven,’[53] and if he
proved his innocence to the satisfaction of more than four-fifths of his
judges, his accuser paid a fine of one thousand drachmae! Thus, he could
not be slain on the spot by the avengers if he pleaded innocence: but
unless he proved that he was innocent he was ultimately put to death.
Aristotle may be taken to suggest that there was no essential connexion
between the trial of inanimate objects and the verdict of murder
against a person unknown. He says[54]: ‘if the name of the homicide
is unknown, the indictment is prosecuted in general terms against the
unknown author’; but in the next line he adds: ‘The King-Archon and the
Tribe-Kings have competence in indictments against lifeless objects and
the brute creation.’ The juxtaposition of such references is sufficiently
significant. Pollux[55] is more definite: ‘The Prytaneum court,’ he says,
‘adjudicates concerning slayers if they are unknown, and also concerning
lifeless objects that have fallen and caused death.’
Though none of these authorities say anything to support, neither do
they say anything which refutes, our opinion that the Prytaneum court
could also try cases of ‘accidental’ slaying in which a person accused
of manslaughter pleaded an entire absence of neglect[56] or passion
or intent. Our view is however rendered probable by the fact that
preliminary inquiries in homicide cases were made in this place which,
in addition to being a court, was also the official residence of the
King-Archon and of the Prytaneis[57]; but the most cogent argument in
favour of our hypothesis is to be found in the first two lines of the
Draconian inscription if our interpretation of these lines is correct.
We fail to see how the Draconian reference to ‘kings’ as ‘the judges’
in cases of homicide committed ‘without intent’[58] can be otherwise
satisfactorily explained.
If it be objected that pleas of ‘accidental’ homicide were regularly
tried at the Palladium court,[59] we may reply that the proper function
of this court was subsidiary or supplemental to that of the Prytaneum.
In the Palladium the accused in his plea denied, indeed, any guilt,
but he would have found it difficult to prove his innocence unless
he could transfer the guilt to another person. In the Prytaneum, as
we conceive it, he had often an opportunity of laying the blame upon
an inanimate instrument of death. Such a plea of accidental slaying
involved no question of human guilt, as the accusation was centred upon
an inanimate ‘object.’ Again, whenever the plea of the accused differed
from the charge of the accuser, it was the duty of the King-Archon to
decide on the probabilities of the case, before he relegated the trial
to its appropriate court.[60] If, then, a person accused of murder or
manslaughter could advance a plea of accidental homicide by accusing an
inanimate object, the Prytaneum court adjoining the official residence of
the King and the Prytaneis would have been at the immediate disposal of
the defendant. No long period of time, such as ordinarily had to elapse
between formal accusations and homicide trials, preceded the trials at
the Prytaneum; and we may infer from Plato’s account that the verdict
of ‘death by persons unknown’ was normally brought in by the Prytaneum
court before any formal proclamation of the unknown murderer was made by
the relatives of the slain.
INVOLUNTARY HOMICIDE
In regard to pleas and charges of manslaughter, we hope to show that
there is a very substantial agreement amongst the ancient authorities.
Once more[61] we must call attention to the possibility of local as
distinct from central jurisdiction. Demosthenes[62] quotes a law of
Dracon relating to the ‘appeasement’ of the relatives of the slain,
which is practically identical with the law which we have quoted from
the restored inscription. ‘Proclamation to (or against) the slayer shall
be made in the market-place (by all relatives of deceased) within the
degrees of cousinship and by cousins; in the prosecution there shall act
jointly with these, the sons of cousins, the sons-in-law (γαμβρούς) and
the fathers-in-law (πενθερούς), the cousins-in-law, the sons of such
cousins and the phrateres. If “appeasement” is prescribed (δέῃ), if
there is a father or (and) brother(s) or (and) sons, let all (these) be
appeased or let one objector hold the field: if there are none of these,
and (the accused) slays involuntarily, and the Fifty-one, the Ephetae,
decide that he slew involuntarily, let ten phrateres decide about
appeasement, if (all) consent. These let the Fifty-one choose according
to birth (or merit).’ We give below[63] the Greek version of the latter
portion of the law, so that it may be the more easily compared with the
corresponding portion of the Draconian inscription. In this inscription,
there are two lines which are not found in Demosthenes, namely those
which refer to the rôle of the ‘cousins’ in accepting ‘appeasement.’ We
must not, however, conclude that the cousins had ceased to have a voice
in ‘appeasement’ in the time of Demosthenes, or from the year 403/2
B.C. onwards, or in Solon’s time. We are convinced that the omission is
due either to the negligence of a scribe or to the deliberate excision
by Demosthenes of unnecessary elements of law in a legal quotation
which included extracts from different laws, most of which are only
remotely relevant to his main purpose in the speech. It would be absurd
to suppose that a legal innovator jumped from the ‘small family’ to the
neighbour-brethren (phrateres) and ignored the cousins in an enactment
involving the transfer of property which constituted ‘appeasement.’
Surely if any change were made in the personnel of the recipients, the
‘neighbours’ would have been first omitted. And we cannot suppose that
cousins had become obsolete since Dracon’s time!
The formal proclamation of a charge of manslaughter against the
accused was the initial act of the ‘prosecution’ which, after a
period of inquiry, after examination of witnesses, and after various
other formalities, ultimately culminated in the formal trial of the
accused at the Palladium court. But, as it stands, this quotation from
Demosthenes suggests, _prima facie_, that trial could be dispensed with
if the deceased had near relations who unanimously consented to accept
‘appeasement’: and that it was only in the absence of relatives that a
trial took place, after which the phrateres, who were merely neighbours,
negotiated the appeasement. But this _prima facie_ inference arises from
the clumsy and unscientific wording of the law. That the inference is
logically invalid is obvious from the simple fact that, in the absence of
relatives of the deceased, the slayer could not be tried at all! When the
law says ‘if there are none of these,’ it must be taken to mean ‘if none
of the groups which are privileged to decide about appeasement can be
brought to unanimity.’
It is an extraordinary thing, that in this Demosthenic citation of the
law relating to manslaughter there is no _certain_ reference to the
penalty of exile. Are we to assume that such a penalty was not legally
compulsory, that it was merely a fortuitous eventuality which depended
entirely on the attitude of the relatives to ‘appeasement’? Are we to
suppose that if all the relatives concerned agreed to be ‘appeased’
immediately after the trial and the verdict, the manslayer could have
remained at home precisely as in the old wergeld days? We have no doubt
that so far as the relatives of the slain were concerned, he could have
remained at home. But could he have been admitted to purgation? Was he
not ‘polluted’ if the dying man did not ‘release’ him? Could he have
ignored the anger of the gods and of the slain? The laws of Dracon do
not directly assist us in answering these questions: on the contrary, by
their obscure wording they suggest frequently the wrong answer. But we
have seen[64] that these laws can only be explained as a ‘compromise.’
In the wergeld system of tribal Greek societies in pre-historic days,
there was a regular and scientific method of ‘appeasement’ which, in most
kinds of homicide, was recognised as a solvent of the feud. But in the
Draconian code ‘appeasement’ appears in a degenerate and insignificant
aspect. It is subordinated to other penalties which are not stated with
any degree of emphasis, for the simple reason that they were universally
familiar. All the arguments which we have put forward in support of our
theory of a ‘compromise’ in Attic law compel us to assume that exile
was an essential ingredient of the penalty for manslaughter. Such an
assumption is implied in the reading ἐσέσθων (let them permit to return)
occurring in the Draconian inscription. Demosthenes, unfortunately, has
αἰδεσάσθων, which refers merely to ‘appeasement.’ As we should have
expected, Glotz[65] and Müller[66] interpret this Demosthenic reference
as if it were a logical scientific document: and they accept the _prima
facie_ inference that a person accused of manslaughter could, as soon
as he was publicly proclaimed and banned from all public and religious
intercourse, avoid the ordeal of a trial and the punishment of exile by
simply taking some money with him to the house of the father, brother
and sons of deceased; if he succeeded in securing a ‘settlement’ and
procured a ‘legal release,’ he could have quietly resumed his ordinary
occupations! This interpretation, which we have already rejected,[67]
is inconsistent with other passages in Demosthenes and in Plato which
we shall now discuss. While we admit that this law of Dracon does not,
unfortunately, mention the exile penalty for manslaughter as an obvious
and incontrovertible fact, yet we insist that it does mention trial as
a normal concomitant. The Ephetae are there, first and last. The Ephetae
must decide the degree of guilt: they must decide that the slayer slew
involuntarily: they must in the absence of relatives or in the event of
their disagreement select the ‘phrateres’ according to birth or merit.
This at least is very different from ‘private settlement.’
Demosthenes[68] quotes another law of Dracon regarding manslaughter, as
follows: ‘If anyone shall pursue or plunder beyond the civic boundary
any of those slayers who have gone into exile and whose property is
not confiscate to the State, he shall incur the same penalty as if he
did so inside our boundaries’ (ἐν τῇ ἡμεδαπῇ). Fortunately we possess
Demosthenes’ explanation of this law which, because of its peculiar
expression, requires some such explanation. The word ἐπίτιμα, in
reference to property, is opposed to ἄτιμα and means ‘not confiscated.’
Hence, the phrase ‘Slayers whose property is not confiscated’ must refer,
says the orator, to ‘involuntary slayers,’ because the property of wilful
murderers is confiscated to the State. Thus this Draconian law, instead
of employing the adjective ‘involuntary’ (ἀκούσιος) as a predicate
of ‘slayers,’ uses two clauses to describe what a single adjective
would have described. Are these two clauses, then, to be regarded as
definitive; as concerned with qualities which normally and universally
characterised involuntary slayers? Are involuntary homicides, as a class,
defined as ‘those manslayers who have gone into exile and whose property
is State-guaranteed’ (ἐπίτιμα)? Or are we rather to suppose that there
were two classes of involuntary homicides, and that this law refers
to only one of these classes—that in some cases, as Glotz and Müller
conceive the matter, the slayer bribed the relatives of the slain, and
avoided all further trouble; and, in other cases, he went into exile? In
our opinion this quotation suggests that all involuntary slayers went
into exile for a period of time. Müller holds[69] that the duration of
this period of exile was not fixed by any law: that the slayer remained
in exile until such time as the relatives accepted ‘appeasement.’ We
shall discuss this opinion more fully later, but we may say here that it
seems very strange that the State should have guaranteed protection for
the property of the slayer, and should, at the same time, have had no
voice in determining the limits of his period of exile, no influence in
constraining the relatives of the slain to accept ‘appeasement.’
Speaking of involuntary homicide, in another passage, Demosthenes
says[70]: ‘If the accused be convicted and be found to have done the
deed, neither the prosecutor nor anyone else has control over him, but
the law alone. And what does the law command? That a person convicted of
involuntary homicide shall on certain stated days leave the country by an
appointed road and remain in exile until he has appeased certain[71] of
the relatives of the slain (τινα τῶν ἐν γένει τοῦ πεπονθότος): then it
permits him to return, not anyhow, but in a particular manner, ordering
him to sacrifice and be “purged” and giving other directions which he
must carry out. Rightly, men of Athens, does the law prescribe all
this. It is just to make the penalty of involuntary homicide less than
voluntary, and it is right to prescribe exile guaranteeing (a person)
a secure exodus, and for the returning exile to free himself from tabu
and be cleansed by customary rites; above all it is right that the laws
should control everybody and everything.’ In this passage we find the
usual obscurity of language and even apparent discrepancies.
Is it suggested that if the manslayer is not accused and convicted,
the law has no control over him? Glotz and Müller would find in
such quotations a proof of their theory of the legality of ‘private
settlement.’ But it is absurd to examine as it were microscopically such
passages as this. They must be interpreted, as far as possible, in the
light of other parallel references, and accepted or rejected according
to the criterion of consistency. We admit of course that Demosthenes is
not always consistent; he was essentially an orator, and as an orator
he placed rhetoric before logic, persuasion before truth. But in legal
quotations he had to respect the legal knowledge of his audience. Hence
such quotations contain of necessity an important element of truth. In
the passage which we have just cited there is an apparent discrepancy
which militates somewhat against its logical value. We may ask: ‘How can
the law be said to be master of everybody and everything if it guarantees
to the relatives of the slain the right to refuse “appeasement,” even if
there be only one dissentient?’ A law of Dracon prescribed that ‘all must
agree or let one objector hold the field.’ Was not this objector, then,
κύριος τοῦ ἀνδροφόνου? What control had the law over such an objector?
On the very face of it, therefore, this statement of Demosthenes seems
inconsistent with itself! But perhaps Plato will help us to solve the
problem.
We have already[72] quoted Plato’s account of the penalty for
manslaughter. The legend, which he mentions, ‘of priests of old’
concerning the temporary anger of the dead shows the religious
significance which the exile penalty possessed for Plato: he understood
the meaning of the ‘customary rites’ of cleansing and purgation
which the manslayer had to perform on his return. In his penal
code, Plato differentiates between different degrees of guilt in
involuntary homicide: and it is significant that the penalties vary
correspondingly—not in the extent of the ‘appeasement,’ but in the
duration of the period of exile. Thus he says[73]: ‘If anyone kills a
freeman in a passion, let him be of necessity an exile for two years.’
In this case there is an element of guilt, but there is no deliberation
or intent to kill. He goes on to say: ‘He who in a passion but with a
certain degree of intent (μετ’ ἐπιβουλῆς) slays a person, ... let him
be an exile for three years ... being punished during a longer period
because of the greater seriousness of his passion.’ ‘It is difficult,’
he continues, ‘to give laws on such matters with accuracy. Of all such
matters, therefore, it is right for the guardians of the laws to have
cognisance: and when the period of the exile shall have expired for each
offender, it is right to send twelve judges to the civic boundaries
who having considered still more clearly meanwhile the condition (or
conduct—πραξεῖς) of the exiles, will be the final arbiters (δικαστάς) of
the “appeasement” and their return home from exile: and let them abide
by the decisions of these magistrates; and if, after returning from
exile, anyone of these commits again the same offence, let him be exiled
and never return: if he returns let him suffer in the same way as if
a stranger returns’ (κατὰ τὴν τοῦ ξένου ἄφιξιν). Here we have a very
different picture from that which the theories of Glotz and Müller and
some Demosthenic passages suggest. There is question of manslaughter, but
there is no reference to the power of wrangling relatives to prevent the
exile’s return. On the contrary, it is stated that the ‘appeasement’ was
controlled by judges who may have been _phrateres_, but were probably not
kinsmen of the slayer. The last line in the passage refers to a law which
we have already[74] mentioned, namely that which decreed perpetual exile
for manslaughter committed between strangers in any given State. The
penalty for ‘returning’ in such a case, that is, for _rupture de ban_,
was death.
In a passage which refers to a case of kin-slaying, in which the dying
man ‘forgave’ his slayer (without, however, granting a ‘release’), Plato
says[75]: ‘If any person of his own accord absolves anyone for such a
deed, let the purgations be made for the slayer as if his act had been
involuntary, and let one year be the term of his absence from the country
according to law.’ The theory of the legality of ‘private settlement,’
before or after trial, cannot be reconciled with this quotation. The
phrase ‘according to law’ suggests that Plato refers to actual Attic law,
and not to an ideal law of his own creation.
Plato adds that in such a case the slayer can never resume his ordinary
domestic life, even though he recovers his civic status. Similarly, for
the slaying in a passion of a husband by his wife, or of a wife by her
husband, the penalty prescribed is three years’ exile, but such persons,
even though not akin in blood, cannot return home to share in common
domestic rites with their children, or to eat at the same table. In this
law we see clearly the operation of a local or domestic ‘pollution’ which
debars the slayer from his family hearth, and which is quite distinct
from the civic pollution which debars him from certain definite States.
It is important to observe that with the local or domestic pollution no
civic or international law has ever interfered; whereas civic pollution
has been regulated by law according to the varying degrees of guilt, and
the claims of the relatives to ‘appeasement.’
Plato implies that one year was the normal period of exile for
manslaughter. The Greek verbs ἀπενιαυτίζειν[76] and ἀπενιαυτεῖν convey
the same implication. Can this fact be reconciled with the law of Dracon?
We believe that it can, but only by distinguishing between theory and
practice, between local and central courts, between local and central
religion.
Plato shows how local judges would have solved the difficulty caused by
recalcitrant relatives. We have seen[77] that Plato decrees perpetual
exile for manslaughter between strangers. But exile from what State?
Surely it was only from the State in which the deed took place: and the
reason for this penalty was probably the fact that the relatives of the
slain did not live in the State where the deed took place: and hence no
‘appeasement’ of these relatives could formally admit him to that State,
though he could be admitted through ‘appeasement’ to his native State,
if the slayer and the slain were both citizens of the same State. Thus
the tendency of the pollution doctrine, apart from the claims of the
relatives of the slain, was to exact perpetual exile for manslaughter.
Plato decrees that any citizen had the right to prosecute a stranger for
manslaughter, but not that he had a right to accept ‘appeasement.’[78]
Hence, by a strange paradox, the relatives of the slain provided a medium
by which the man-slayer regained his civic status. Yet, in the case of
involuntary kin-slaying, the slayer could never re-enter his home! We
believe that these decrees are not Platonic creations, but were found
in Attic law, written or unwritten. Can they be reconciled and made
intelligible?
We saw[79] that wergeld was not admissible for kin-slaying in the
Pelasgian tribal system. Outside the kindred, however, wergeld permitted
the slayer to remain at home or to return after a time, if he could not
pay the full _were_. A comparison of such customs with the historical
homicide code suggests quite obviously a compromise, in which the
seventh-century pollution-doctrine failed to impose its will on the
relatives of the victim because of a real or presumed ‘forgiveness’ on
the part of the slain. Without the anger of the dead, the pollution
doctrine could not operate.[80] Apollo himself could not enforce it.
The relatives of the slain had a just claim to be regarded as the best
interpreters of the anger of the dead. It was in this crevice, so to
speak, in the doctrine of pollution that the kindred of the slain drove
the thin end of their old tribal wedge. They claimed the right to
determine the period of exile for manslaughter, but for manslaughter
only: for in such cases the anger of the dead could not be regarded as
perpetually implacable. In theory, then, these relatives had the right
to consent to ‘appeasement’ at any time; but in deference to the dead
their consent could not become effective before a year had passed. They
could in theory delay their consent indefinitely, but delay was less
probable in local than in central jurisdiction. They were compelled by
law to prosecute the manslayer in court if the slayer denied his guilt;
but if he admitted guilt, no trial was necessary; and it was only in such
a contingency that ‘appeasement’ could occur without trial: nevertheless
a year’s exile was still necessary before the relatives could accept
‘appeasement’ and finally remove the barriers to ‘purgation.’ The
fact that the involuntary kin-slayer could never re-enter his home we
attribute to the tradition of Pelasgian domestic religion.[81] This
solution reconciles, we think, the law of Dracon, the code of Plato, and
most of Demosthenes’ references. It is also in harmony with our general
theory[82] of the compromise between ‘pollution,’ tribal wergeld, and
State law, which is expressed in the murder-code of historical Greece.
JUSTIFIABLE AND JUSTIFIABLY ACCIDENTAL HOMICIDE
In our analysis of the Attic laws concerning justifiable homicide, we
will begin by drawing a distinction between three possible contingencies.
First of all, we can conceive that blood has been shed without any
intent to kill, but with a certain element of neglect (ἀφυλαξία), which
has however been expressly mentioned and declared to be justifiable in
law. Secondly, we may suppose that there was a certain degree of intent
to kill and a certain amount of deliberation, but also that there was
an extenuating element of impulse or passion which has been decreed
guiltless, in certain circumstances, by the law. Thirdly, we may suppose
that the person slain was an outlaw or a State-criminal, whose life was
forfeit by the laws of the land, and whose citizen-slayer was declared to
be justified in advance.
Homicide of the first class has so much in common with ordinary
accidental homicide that we think it probable that they were often
confused in Greek thought, if not in law. The words ἄκων and ἀκούσιος
which, we have seen,[83] were applied indiscriminately to denote cases
of different degrees of guilt in accidental slaying and in manslaughter,
were also used to denote such forms of accidental slaying as were
expressly ‘justified’ by law. Perhaps this confusion may help to explain
still further the apparent discrepancies in Demosthenic references
to ‘release’ and ‘private settlement.’ For the case which we are now
discussing, there was no penalty, no exile, or loss of property, not
even a fine. Pleas of justifiably accidental homicide were doubtless
frequently made in answer to charges of manslaughter or of wilful murder.
The King-Archon (and perhaps also the Tribe Kings) had to decide between
the merits of the ‘charge’ and of the ‘plea.’ Obviously, it was always
as a result of a ‘plea,’ never as a result of a ‘charge,’ that homicide
cases were referred to the Delphinium court.
Justifiable homicide of the second class has close affinities with
extenuated manslaughter, or slaying in a passion. The essential
difference lies in an express legal justification in one case, and the
absence of such a justification in the other. When we come to analyse
the Oresteian legends of Attic tragedy we shall find[84] that the
close affinity which exists between these two legal conceptions caused
considerable confusion in the legends—caused Orestes to be immune from
punishment, from one standpoint, but liable to a period of exile, from
another. The oracle of Apollo, which commanded him to slay his mother,
should naturally have been accepted as a complete justification. Some
legends took this view.[85] But such a contingency was not expressly
mentioned in the Attic laws concerning justifiable homicide. Plato
assures us[86] that under no circumstances, not even in self-defence,
was it lawful to slay a parent. Hence it became necessary to regard
Apollo as the divinely immune cause of guilt; and Orestes, as his
blind, obedient instrument, became liable to a merely nominal charge of
manslaughter or extenuated matricide! His mother was almost compelled
to ‘forgive’ the deed! In one legend[87] Apollo commanded the Erinnyes
to withdraw from pursuit, and drove them from his temple; in another he
decreed that they should pursue Orestes for a year![88]
Our third classification includes cases in which only two issues could be
raised—namely, lawful homicide or wilful murder. From this point of view
the act of Orestes could also be discussed, and an Athenian court could
find it interesting to discuss and difficult to decide at what precise
time in the post-Homeric social evolution did private vengeance become
illegal! The trial of Orestes at Argos, which Euripides describes in the
_Orestes_, seems to depend upon this legal difficulty.[89]
We will now illustrate these cases by relevant quotations.
Aristotle’s[90] account is a mere extract, or rather a kind of summary:
‘Homicide,’ he says, ‘admitted and alleged to be lawful, as of an
adulterer caught in the act, or of a friend mistaken for an enemy in war,
or of an antagonist in an athletic contest, is tried in the Delphinium.’
The first clause has been included in our second classification, the
rest of the cases belong to our first category. Demosthenes quotes[91]
the Draconian laws, and his account is almost identical with that which
Plato[92] gives. To facilitate comparison, we will quote both accounts
together in parallel columns:
_Demosthenes_
If any person shall kill another accidentally in a contest or
in an ambush or in a battle by mistake or having caught him
(in adultery) with his wife or with his mother, or sister, or
daughter, or a concubine kept to beget free children, he shall
not be put on trial (_or_ he shall not be exiled) (φεύγειν)
for such homicide: and if anyone resisting unlawful seizure
or violence shall immediately kill the aggressor his death
shall not be punishable,[93] and it shall be lawful to kill
murderers (found after conviction) in our territory, but not
to illtreat or amerce them, under pain of paying[94] double
damage inflicted: no person shall be liable to any legal
proceedings for homicide who gives information against (and
therefore causes the death of) exiles who return when it is not
lawful.[95]
_Plato_
If any person shall kill a citizen accidentally in a contest at
public games ... or during a war or the practice of military
exercises ... let him be purified according to the law brought
from Delphi about these matters, and be immune from punishment:
and, regarding physicians, should any person who is attended
by them die without their intending it, let such physicians
be immune by law.[96] If anyone catches a thief entering his
house by night, with intent to steal ... and kills him, let him
be immune. If anyone commits rape ... let him be slain with
impunity: if a man finds his wife being ravished and kills
the offender, let him be immune by law. If anyone shall kill
a person, warding off unjust death from his father, mother,
children or brothers ... let him be immune.[97] If any such
persons (wilful murderers) set foot upon the civic territory
of the slain, let him who first meets him ... kill him with
impunity.[97]
We have elsewhere[98] cited a Delphic law which concerned justifiable
slaying, and which, in its completeness, we regard as the common parent
of both these legislations. These excerpts are strikingly similar,
especially if we remember that they are a number of extracts which we
have put together with the object of eliciting a complete list of cases.
No better proof than this could be adduced of the ‘historicity’ of
Platonic legislation[99] regarding homicide. Antiphon[100] refers to the
legal immunity of physicians, and we may therefore consider this Platonic
law to be also Draconian (or Solonian).[101]
To both the above quotations our triple classification of cases of
justifiable homicide can without difficulty be applied. Confining our
attention to the Demosthenic account, we may point out that the reference
to accidental slaying in a contest, ambush, or battle, is covered by
our first category: the infliction of death for adultery or seduction is
included in our second category: and the slaying of unjust aggressors,
and of murderers _en rupture de ban_, in our third category.
In regard to adultery, we have already[102] suggested that the right
to kill _in flagrante delicto_ must not be regarded as a relic of a
primeval custom which decreed the death penalty for adulterers in
all circumstances. The Gortyn laws and the Homeric customs which are
denoted by the word μοιχάγρια support our view that the right to kill
_in flagrante delicto_ was an innovation of the period of synoekism
and of centralised government. Philippi[103] thinks that there is a
strong probability of correctness in Pausanias’ view[104] that the age
of Theseus represents the point at which the distinction of justifiable
homicide could be applied in such matters. But our reading of Pausanias
suggests that in his view the distinction was first applied to adultery
in the time of Dracon.[105] We believe the distinction, thus applied,
was as late as the seventh century, and we agree with Pausanias that the
penalty thus decreed was severe.
WILFUL MURDER
We have seen that the restored Draconian inscription contains no
reference to wilful murder. Demosthenes quotes a law which merely
mentions the crime and which is mainly concerned with the allocation
of trials for wilful murder to the Areopagus court which normally had
jurisdiction in such cases. We shall discuss this law when we come to
describe the Athenian homicide courts. The actual penalties for murder
can only be inferred from the wording of other Draconian laws, and from
other sources, such as Plato. Thus we may infer from the law[106] which
declared inviolable the person and property of involuntary slayers, who
are described as ‘those who have gone into exile and whose property is
not confiscate,’ that in the graver kinds of homicide, such as murder,
the criminal’s property was confiscated to the State. Again, from
the law[107] which forbade the slaying of a murderer ‘whilst he keeps
away from the markets on State-boundaries and from public games and
Amphictyonic festivals,’ and from the further law[108] which permitted
the slaying of a murderer found, after conviction, in his native
territory, we may infer that death was the normal penalty for any
murderer who did not go into perpetual exile. Demosthenes, in the speech
_against Meidias_,[109] says that ‘the laws punish those who have slain
with intent by death _or_ (καί) perpetual exile _and_ (καί) confiscation
of property.’ Plato[110] is quite lucid in his account of wilful murder,
but he omits to mention confiscation of property. ‘Whoever,’ he says,
‘deliberately and unjustly shall kill with his own hand any of his fellow
citizens (τῶν ἐμφυλίων), let him be debarred from civic and religious
privileges (τὰ νόμιμα) and let him not “pollute” the temples or ports or
other public meeting-place ... let him who is convicted pay the penalty
of death and let him not be buried in the native land of the slain [or
in his own, if that is different]: but if he goes into exile without
wishing to challenge a verdict (κρίσιν ὑποσχεῖν) let him remain in
perpetual exile.’ Demosthenes[111] implies that the last moment at which
the murderer could flee was ‘after the first speech’ at the trial.[112]
Pollux[113] clearly means to say the same thing, though the omission of
the tiny negative μή has annoyed the commentators.[114] ‘The Areopagus,’
he says, ‘judged cases of slaying and wounding with intent (to kill) and
arson (with intent to kill?) and (the administering of) drugs if one
intends to kill in administering (them).’ So far his words are identical
with those of the ‘Draconian’ law, as it is given by Demosthenes. He
continues: ‘There took place a preliminary oath (διωμοσία), and after
this the trial ... and after the first speech it was lawful (for the
defendant) to go into exile if anyone had slain his parents’ (εἴ τις
γονέας εἴη ἀπεκτονώς). When we discuss presently[115] the Attic law of
parricide and kin-slaying, it will perhaps be more obvious that Pollux
must have written εἰ μή τις γονέας εἴη ἀπεκτονώς, ‘_unless_ a man had
slain his parents.’ The ‘Draconian’ law concerning the Areopagus will be
discussed later, in our chapter on the Attic murder courts. We need not
enter into the details of the preliminary accusations, the investigation
before the Archon Basileus, and the three monthly trials which preceded
the final trial and the verdict. Such details, if not already referred
to, may be found in all the ordinary books of reference.[116] But there
is one question which merits a brief examination at this stage: namely,
the question whether the death penalty, in cases of wilful murder,
cancelled or obviated the confiscation of the murderer’s property to the
State.
We have seen[117] that in the wergeld system of the tribes, the death
of the slayer generally affected the payment of wergeld, though custom
seems to have varied between the cancellation of the whole wergeld
and the cancellation of the murderer’s share. But we do not think, as
Glotz appears to think, that confiscation took the place of wergeld.
The purgation-rites for homicide, says Glotz,[118] caused the creation
of sanctuaries and gave to the gods their share of the ποινή. We have
seen[119] that in tribal societies which practise wergeld there was a
_saraad_ or honour-price, quite distinct from the _galanas_ or wergeld
proper, and it was this honour-price which we consider to have been the
indirect source of the later penalty of confiscation. In the evolution
of strong central civic government, or of theocratic power, this
element could have been, and usually was, retained, when wergeld was
abolished. But ‘honour-price’ rarely amounted to the total property of
the offender. Hence the direct source of the confiscation penalty must
be sought elsewhere. We have suggested[120] that one direct result of
the evolution of State-power was the conception of certain ‘crimes’
or ‘sins’ as an insult to the State and to its gods. This insult had
to be atoned for in a more substantial and drastic manner than by the
mere payment of an ‘honour-price.’ The State created new penalties, of
which the most important was civic degradation (ἄτιμία). In Greece, this
degradation in its graver forms was usually attended by perpetual exile
and confiscation of property. It is impossible to explain the conjunction
of these two penalties, except on the assumption of grades of criminality
and of degrees of severity in deterrence and in punishment. We cannot
suppose that wilful murder was the gravest crime or sin which the State
had to punish. Treason was much graver. The penalty for treason, at least
in fifth-century Athens, was death and confiscation of property[121]:
and this, we believe, was also the penalty for parricide.[122] But the
penalty for treason was collective and hereditary. No descendant of
a traitor could be permitted to live, or to possess property, in the
State which condemned him. The penalty for parricide was, however,
individualistic, except in so far as confiscation implied a certain
injury to the offender’s family and his descendants. If we may trust
Andocides,[123] the penalty for sacrilege was death, without confiscation
of property, in Athens in 399 B.C. Glotz[124] thinks that after 403 B.C.
confiscation did not accompany death for any crime, even for treason. We
have already[125] discussed a passage in the Third Philippic speech of
Demosthenes, which implies that there was a relaxation in the punishment
of treason which the orator attributes to lack of patriotism. Demosthenes
frequently compares the penalties for manslaughter with the penalties for
murder, and says that they were rightly less severe.[126] But if death
_and_ confiscation were the penalties for murder, it would, we think, be
rather ironical to describe these penalties as ‘more’ or ‘less’ severe!
We shall see presently[127] that exile without confiscation was the
penalty for wounding with intent to kill. The phrase which Demosthenes
uses, in speaking of murder-penalties, is unfortunately rather ambiguous.
He says[128]: θανάτῳ καὶ ἀειφυγίᾳ καὶ δημεύσει τῶν ὑπαρχόντων: here,
we must suppose that the first καί means ‘or,’ and we may suppose that
the second means ‘and’: and we translate ‘by death _or_ by exile and
confiscation of property.’ This juxtaposition of words suggests, on the
whole, that death absolved the murderer from confiscation.
We may support this conclusion from Pollux and from Aristotle. The
latter, speaking of the sale-commissioners (πωληταί) at Athens, says[129]
that, amongst other things, they ‘sell the estates of exiles from the
court of Areopagus and the property of State debtors.’ Pollux[130] says
of these same officers that they ‘sell the property of those who have
fled from the Areopagus after the first speech.’ If death was accompanied
by confiscation for wilful murder, why do not Pollux and Aristotle say
so? The reference of Pollux to exiles who fled ‘after the first speech’
must apply to murder-exiles, and to them alone. This whole subject has
been ably discussed by Glotz,[131] and we are glad to be in agreement
with his main conclusion, that death absolved from confiscation in cases
of wilful murder. We agree with Glotz that the phrase in Lysias,[132] ἐγὼ
γὰρ νῦν καὶ περὶ τοῦ σώματος καὶ περὶ τῶν χρημάτων καὶ περὶ τῶν ἄλλων
ἁπάντων κινδυνεύω, does _not_ prove, as Philippi[133] maintains that it
proves, the combination of death and confiscation in such cases. The word
σῶμα here, as Meier[134] and Glotz[135] point out, means civic status,
like the Latin word _caput_, and need not refer to ‘life.’ In general,
we may say of the ancient authorities what Glotz says[136] in reference
to one of Antiphon’s _Tetralogies_,[137] that if the dual punishment
was legal it could not fail to have been mentioned. If we add to this
fact of omission the force of our general reasoning as to the origin and
_raison d’être_ of the penalty of confiscation, and the plain and obvious
inferences from the Attic murder laws, we cannot come to any other
conclusion than that which we have reached. Philippi must stand alone as
the sole exponent of the opposite opinion.
PRIVATE SETTLEMENT FOR WILFUL MURDER
It is, however, rather inconsistent for Glotz to maintain that
confiscation (though prevented by death) was an invariable concomitant
of exile and at the same time to suppose that ‘private settlement’ for
wilful murder was legal.[138] On purely material grounds, and apart
from any religious considerations,[139] it seems obvious that no State
would have legalised a bribe which, by paralysing the action of the
leading prosecutor, removed from the murderer all civic degradation and
deprived the public treasury of that property which it regarded as a
partial retribution for the insult which its religion had received. It
is not necessary for Glotz[140] to propose, as a novel hypothesis, that
the phrase μηδ’ ἀποινᾶν, which forbade the amercement of a murderer
_en rupture de ban_, was a Solonian innovation. Why should Solon have
troubled to forbid such amercement if ‘private settlement’ was legal?
Glotz would answer that the phrase μηδ’ ἀποινᾶν refers to the abolition
of wergeld: that wergeld was one of the pillars of clan-power: that
Solon, being opposed to clan-power, therefore abolished wergeld: but that
‘private settlement’ was not wergeld and stood therefore on a different
plane: that Solon could not have abolished ‘private settlement’ as long
as the relatives had the initiative in prosecution! This position we have
already[141] discussed at length. It seems clear, _prima facie_, that ‘an
amercement _en rupture de ban_’ was not wergeld but was very much akin
to, if not actually identical with, ‘private settlement.’ The splendid
hypothesis of Glotz must therefore be turned against himself. We may go a
step farther. As there is no reason for supposing that Solon rather than
Dracon should have prohibited ‘private settlement’ for wilful murder, the
phrase μηδ’ ἀποινᾶν, which does not refer to wergeld but does forbid a
kind of ‘private settlement’ or ‘amercement,’ is therefore quite properly
Draconian. As for wergeld, we have shown that it was abolished, or at
least that it lost all but the shadow of its substance, in the religious
revolution which declared murder a ‘pollution.’ Any possibility of its
resuscitation was removed when in the atmosphere of theocratic religion
the State gods claimed, as a retribution, the property of the slayer. For
cases of wilful murder at least, which was now placed on an execrable
pedestal beside treason and sacrilege, the days of retribution to the
relatives of the slain were no more.
REFUSAL OF BURIAL TO EXECUTED MURDERERS
From Plato[142] we infer that there could be no burial for murderers who
did not go into exile and who were executed by State officials.[143] We
need not again[144] call attention to the importance of burial in ancient
Greece. It alone gave repose to the dead, and enabled the entombed
spirit to be periodically revivified, and even recalled from Hades, by
the offerings made at the grave. The refusal of burial to murderers,
especially kin-slayers, to traitors, and sacrilegious persons, was a
particularly revolting form of supplementary punishment. Their bodies,
stripped naked and cast beyond the boundaries, were devoured by dogs and
birds. No wonder that a pleader, in a Demosthenic speech,[145] says that
to them death was not easy, as it was to ordinary men. No wonder that the
slayer would flee and lose his property rather than preserve it for his
children at the cost of such a fate.
PLOTTING AND CONTRIVING MURDER
Included in the category of wilful murderers, from the legal standpoint,
were the plotters or contrivers or instigators of murder, at least when
the plan materialised.[146] Andocides, in his speech _On the Mysteries_,
says: ‘This law existed in former times and now also exists, namely, that
the “plotter” shall be liable to the same penalty as he that has wrought
with his hand.’[147] From the law[148] of Dracon which declares that
‘if anyone shall kill a murderer or be the cause of his death (αἴτιος
φόνου) while he abstains from the markets on the civic boundary ... he
shall be liable to the same penalties as if he had killed an Athenian,’
we can infer that the equation of plotting to kill with unjustifiable
homicide, which is here mentioned, applied also to ordinary wilful
murder. Plato[149] confirms this conclusion, but suggests that in regard
to burial the slayer was more severely punished than the ‘plotter.’ ‘If
a person,’ he says, ‘shall not with his own hand (perpetrate) but shall
suggest to another a deed of murder and by deliberate plotting (βουλήσει
καὶ ἐπιβουλεύσει) be the cause of slaying, let there be for him similarly
... a trial and verdict.... If convicted let it be lawful for him to have
the family burial place.’ Demosthenes[150] puts the matter beyond the
pale of doubt when he says: ‘Remember, the father of the priestess at
Brauron, who was admitted not to have touched the deceased, was sentenced
to exile by the Areopagus because he instigated the actual striker
to strike.’ This sentence of banishment for plotting murder probably
carried with it the confiscation of the plotter’s property. Aristotle
tells us that one of the terms of the Peace made between the rival
factions in Athens in 403 B.C. was as follows[151]: ‘Trials for homicide
in accordance with the ancient laws shall only be held in the case of
persons who have killed with their own hand.’ We can understand the
political significance of such a condition: but it was merely a temporary
amnesty for criminal political intrigue. The guilt of the plotter or
contriver of homicide is frequently referred to in Attic tragedy. It
was, we must suppose, a strong feature in traditional legend. Euripides,
as we shall see, refers to this blood-guiltiness in several plays, for
instance in the _Orestes_,[152] the _Electra_,[153] the _Medea_,[154] the
_Andromache_,[155] and the _Heracleidae_.[156]
But there is another kind of homicide guilt which may easily be confused
with this, namely ‘attempted murder.’ The Greek words βούλευσις and ὁ
βουλεύσας are unfortunately ambiguous, as we have already explained.[157]
Subjectively, the guilt of the ‘plotter’ and of the ‘attempter’ is the
same, but objectively there is a difference. In one case a human life is
violently taken: in the other it is not. Lipsius seems to have confused
these issues.[158] In Aristotle’s account of the Attic murder courts, he
finds a reference to βούλευσις being tried at the _Palladium_. Knowing,
from the speech of Demosthenes _against Conon_,[159] that ‘plotters’
were tried at the Areopagus, he supposes that a change of jurisdiction
had taken place shortly before 330 B.C. Before this, he implies that
there was a division of labour by which βουλεύσεις φόνου ἀκουσίου were
held at the Palladium, and βουλεύσεις φόνου ἑκουσίου at the Areopagus.
We confess we cannot find any meaning in ‘plots of manslaughter’; it
is a contradiction in terms! Now Poste, in his translation of this
Aristotelian passage, does not use the word ‘plotters’ in connexion with
the Palladium. He translates thus: ‘Homicide with malice aforethought is
tried in the Areopagus, including homicide by wounding, by administering
poison, or by fire ... involuntary homicide, attempts to commit homicide
... are tried in the Palladium.’ Thus, we see the difficulties which
arise from ambiguities of language. We have quoted Andocides for the
principle that plotting murder was regarded as equivalent to wilful
murder. A Draconian law mentions both kinds as equally punished in cases
of unjustifiable homicide. Therefore plots to kill would normally always
have been tried by the Areopagus. Poste’s translation of Aristotle, which
is superior to Lipsius in this respect, nevertheless suggests perhaps
that ‘malicious wounding’ without fatal results was not tried by the
Areopagus. The law which Aristotle gives is that of Dracon, and it means
that the Areopagus tried wilful murderers, plotters of murder, wounding
with intent to kill, poisoning with intent to kill, and arson—whether
with intent to kill or not, we cannot say. Attempted murder must be
defined, we think, owing to some discrimination in Attic legal procedure,
as an attempt to kill which did not cause any actual bodily harm.[160]
Such attempts may have been always tried at the Palladium, but what the
penalty was we cannot say—it was probably banishment for a period of
years.
For wounding with intent to kill, the penalty was perpetual exile,[161]
which was not accompanied, we think,[162] by confiscation of property.
The penalty for ‘plotting’ murder (which was successful) was death or
banishment, accompanied by confiscation. Wounding without intent to kill
was a case for civil damages, before the Heliastic courts—it was perhaps
a δίκη αἰκίας.[163]
STATE EXECUTION OF DEATH PENALTY
Before discussing the legal aspect of parricide and of kin-slaying we
must examine the question of the origin and evolution of official State
execution in the capital punishment of homicide. The establishment of
this method of execution had, we believe, an important influence on the
penalty for parricide and, probably, for all general cases of wilful
kin-slaying. The prevailing opinion on this subject tends to suppose that
the method of private execution which is found in the _Iliad_ and the
_Odyssey_ was the normal method of execution in historical Greece and
even in Athens until the time of the orators, that is to say, the fourth
century B.C. The only difference which can be found, according to this
view, between the Homeric and the historical modes of execution is that
in the former case the execution was unauthorised by any written law or
by any public trial, while in the latter case it was legally authorised
and permitted. Thus Gilbert[164] holds that the relatives of the slain
personally executed the slayer in Athens in the fifth century, and that
the exceptional instances of State execution must be attributed to the
sacred ‘right of sanctuary,’ and especially to the Athenian sanctuary of
the Semnai Theai. Glotz minimises as far as possible the change which,
he is compelled to admit, had taken place in historical Greece. It was,
he thinks,[165] from philanthropic motives that the State consented
to execute the murderer if it was requested to do so by the relatives
of the slain. The old principle of primitive society: ‘de voluntario
convictus parentibus vel cognatis occisi tradatur occidendus’ gives
place to an alternative principle that ‘murderers are put to death
sometimes by the judges, sometimes by the relatives.’[166] At Athens,
the ideals of philanthropy went one step further. ‘L’exécution étant
faite au nom du peuple par le δήμιος (_public executioner_) le parent
qui avait engagé la poursuite contre le meurtrier assistait à son
supplice.’[167] It is clear that Glotz regards this public execution as
strangely exceptional. He cannot, however, ignore the evidence of the
orators. But he seems quite certain that this custom did not apply in
the time of Dracon. ‘C’est dans l’Iliade et l’Odyssée qu’on surprend les
origines des φονικοὶ νόμοι. Ce que la famille lésée demandait à l’état,
d’après la loi de Dracon, c’était la permission de se venger. Il fallait
donc que son droit fût reconnu, non seulement au moment des poursuites
mais si elle l’emportait, au moment du supplice ou de l’expulsion. A
l’origine de la juridiction sociale, comme dans la période antérieure
de l’arbitrage, le tribunal, pour faire exécuter ses arrêts, n’avait
que les armes de celui qu’il déclarait vainqueur. C’était le principe
universel en droit grec, que l’exécution du jugement fût abandonnée à
la partie gagnante.’[168] ... ‘Reconnaître le privilège de la famille
en matière de poursuite et d’exécution, c’était pour Dracon admettre
le principe de la vengeance privée, sauf opposition de l’état.’[169]
But philanthropy will not explain the evolution of State execution, any
more than the right of sanctuary will explain it. Public execution may
be of a much more revolting character than the private infliction of
death by an avenging relative in some secret place or at the tomb of the
victim. Moreover, Glotz cannot suggest any definite date for the change
of custom. He would probably have attributed it to Solon, only that he
cannot assume a tremendous growth of philanthropy in that space of twenty
years which separated him from Dracon; and he could not attribute an act
of philanthropy to a legislator whose main object was the exaltation
of State power! We admit that there is a certain suggestion of private
execution in the infliction of death which was not only permitted but
commanded when a murder-outlaw returned to forbidden territory. But in
this case slaying was not the exclusive privilege of the relatives of
the slain, but it was the duty of ‘the first citizen who met him’ to
act as the avenger of the law. We have already[170] described such an
‘execution’ as a case of justifiable homicide. It is not in the least
indicative of a _system_ of private execution. The slayer acts as a
State executioner. Neither can we argue, as Glotz does,[171] from the
right of an injured husband to slay an adulterer _in flagrante delicto_,
to the prevalence of private execution. Such an act is definitely
declared by law to be justifiable homicide.
Our opinion on this subject may be thus summarised: (1) It is misleading
to assume that the Achaean system of vengeance which is found in the
_Iliad_ and the _Odyssey_ is the norm or standard of blood-vengeance
either of tribal village communities or of synoekised States possessing
a strong centralised government. Even amongst the Achaeans, we have
shown,[172] there was a certain submission to military discipline, to
a public opinion which discriminated between murder and vengeance, and
therefore the avenger’s act was not entirely ‘private.’
(2) On the analogy of Indian tribal life, which Maine[173] has
investigated, we may suppose that amongst Pelasgian village communities
or tribal cities there existed a body of official police who acted as the
supporters and preservers of tribal law. If, in such societies, homicide
was not officially avenged, this was only because homicide was what we
should now call a ‘civil offence,’ a matter for retribution between the
families concerned.
(3) It was in post-Achaean times, and especially in the Hesiodic period
and in the Dark Ages of Greek history, that murder and vengeance passed
outside the control of law or discipline. In such conditions it was
more than probable that murder would be unjustly punished, but it was
equally probable that it would not be avenged at all. Into this abyss of
chaos came in the seventh century the Apolline religion of ‘pollution.’
The birth of great States, the dawn of synoekised nationhood, was
overshadowed by the wrath of gods and ghosts, which reflected the
vindictive hatred of human vengeance. Amongst the first essential duties
of the new-born States was the prevention of murder and the regulation
of vengeance. In Attica, especially, where the blight of chaos fell most
lightly,[174] could the new religion be most promptly honoured and obeyed.
(4) We will not maintain that the pollution-doctrine, alone and unaided,
would have led to the official State execution of the penalty of death.
Amongst the Hebrews,[175] one may point out, the ‘pollution’ of the
murderer coexisted with the avenger of blood. The obligation of the
State, one may hold, was satisfied by the trial and the condemnation
of the murderer, and by the sentence of outlawry which was pronounced
against him. But we would suggest, on the other hand, that Greek States
did not confine themselves to a sentence of outlawry. The murderer, in
Greek law, at the moment of his condemnation, nay at the moment that
he challenged a verdict and uttered his second speech at the trial, no
longer ranked as an outlaw; he was a State criminal whose insult to
the State and its gods must be atoned by public execution. Like the
sacrilegious criminal, he must be executed solemnly and with public
execration. His body cannot be buried in the tomb of his fathers. Naked,
it is cast beyond the civic boundaries, amidst the curses and the groans
of the mob, to be eaten by dogs and wild birds when it has been bruised
and mutilated by the stones and missiles which are hurled not by the
relatives only, but by an angered populace.
Yet we cannot suppose that the pollution-doctrine of itself degraded
murderers to the same level with sacrilegious criminals, at least in
the judgment of Apolline theocratic nobles, the pre-historical Greek
sacerdotal aristocracy. From the _Ion_ of Euripides[176] we infer that
sacrilege was the main element which the Delphian nobles and magistrates
condemned in the attempted murder of Ion, the priest of Apollo, by
Creusa. We cannot infer that ordinary homicide would have called for
such public action unless we assume that the Delphians, in addition
to being priests, were also the leaders of a civic government. Their
action in the _Andromache_[177] in slaying, in conjunction with Orestes,
Neoptolemus, who was consecrated by his presence in the sanctuary, cannot
be reconciled with their procedure in the _Ion_ unless we assume that
the death of Neoptolemus was an act of vengeance. Such indeed it was,
but, as Euripides presents it,[178] it was entirely out of proportion to
the offence. The attitude of the Delphians in the _Ion_, and also the
survival of the avenger of blood in Hebrew society under the operation of
‘pollution’ doctrines, prevents us from asserting that private execution
was abolished by ‘pollution.’
(5) But we have suggested[179] that the murder code of historical Greece
was a compromise between three forces: (_a_) the tribal traditions of
material retribution to the relatives of the slain; (_b_) the Apolline
doctrine of homicide as an offence against the gods; and (_c_) the
conception of murder as an insult to the majesty of the State and to
its gods, which arose after the synoekism of local peoples and the
establishment of strong civic governments. As we believe that the
pollution-doctrine abolished wergeld, so we believe that the concurrence
of the pollution-doctrine with State power led to the abolition of
private execution for homicide in the rare cases in which the murderer
refused to flee and was put to death, because he had the audacity to
perjure himself in the attempt to prove his innocence. It follows that
official execution was in existence in Dracon’s time. There is no more
reason for delaying its arrival twenty years in order to link its advent
with the name of Solon than there is for supposing that wergeld was
not abolished before the time of Solon. Between 600 B.C. and the time
of Demosthenes we know of no civic or legal innovation to which such
a change could be attributed. The ‘Eleven’ who obeyed the verdicts
of the Heliasts also obeyed the decision of the Areopagus and of the
pre-Solonian Ephetae courts.[180]
Such evidence for State execution as we possess in Plato and the Attic
orators, far from suggesting that it was a recent innovation, implies on
the contrary that in their time it was a well-established practice.
Lysias,[181] speaking of a certain Menestratus who was a prominent
informer and an accuser of citizens under the Thirty Tyrants, says that
the citizens of the restored democracy ‘having arrested Menestratus in
court on the ground that he was a murderer,[182] condemned him justly to
death and handed him over to the public executioner, and he was cudgelled
till he was dead’ (ἀπετυμπανίσθη). There is, of course, a political
complication in this case. The guilt of treason was added to that of
murder. Yet the procedure is similar to that which would have taken place
if an ordinary murderer challenged the verdict of the Court.
Plato,[183] speaking of the punishment which was decreed for a slave who
had wilfully murdered a freeman, and who was condemned to death, says:
‘Let the public executioner lead him to the tomb of the deceased or to
a place from which he may see the tomb, and having scourged him with
as many stripes as the plaintiff (a relative of deceased) shall order,
slay him if he survives the scourging.’ Even on a slave, then, who had
murdered a man, the relatives could not personally execute the death
sentence. Again, speaking of wilful kin-slaying, for which, in his code
of laws, there is no option but death, he says[184]: ‘Let the servants
(ὑπηρέται) of the judges and the rulers (ἄρχοντες) put him to death and
cast him out naked to an appointed place where three roads meet, and let
all the public officials (or magistrates) on behalf of the whole State
carry each a stone and hurl it at the head of the corpse, and free the
whole city from pollution, and, after this, carry the corpse to the
civic boundaries and cast it out unburied according to law’ (τῷ νόμῳ).
There is here no mention of the relatives of the slain. We must suppose
that if these relatives had been the normal executioners, the kin-slayer
would not ordinarily have been slain at all. Human nature, as well as the
actual evidence, compels us to believe that the relatives of a kin-slayer
would have revolted at the infliction of death, whether in Pelasgian or
in historical times.
Again, Aeschines suggests that the enemies of a man condemned to death
were impotent to do more than attend as spectators at his execution when
he says[185]: ‘It is not death that is so terrible: the really horrible
thing is the insult suffered at the last moment of life. How pitiable
a fate, to see an enemy’s face relaxing into a broad grin, and to hear
with one’s ears the insults of enmity.’ This quotation has been taken
by Glotz[186] to imply that the memory of private execution was still
vivid in Athens in the time of Aeschines; but in our opinion it merely
shows that public execution was a regular and established custom. A
private enemy could have laughed as a freeman died: he could have counted
the stripes and commanded their continuance, as a slave murderer was
scourged to death. But his hand was bound: he could not strike the blow
of vengeance.
Demosthenes[187] attributes to a certain Diodorus, whose uncle was
indicted for impiety by Androtion, because he had not prosecuted his
nephew on a charge of parricide, the following statement: ‘If Androtion
had succeeded in his prosecution of my uncle I as a convicted parricide
should have been deprived not only of my property but of my life: nay,
even to die, which is the common lot of all, would not for me have
been easy.’ This passage implies that Diodorus, if convicted, in this
indirect manner,[188] of parricide, would have suffered a cruel death.
The conjunction of the death penalty with confiscation in this instance
points very forcibly to State execution. Hence we believe that the cruel
death to which Diodorus refers was the public execution which Plato
describes when he speaks of stones being hurled at the corpse, and of its
abandonment to the dogs and the birds. Glotz has, we think, completely
misinterpreted this passage. He thinks[189] that the penalty indicated is
perpetual exile and thus renders the concluding words of Diodorus: ‘Je ne
serais pas seulement dépouillé de ma fortune, je ne pourrais plus vivre,
et le réfuge commun de tous les hommes, la mort libératrice, ne serait
pas un asile pour moi.’
Demosthenes confirms our hypothesis of the evolution of State execution
in another passage which concerns wilful murder. Speaking of the accuser,
he says[190]: ‘If his accusation is considered just and he obtains a
conviction for murder, even then he gets no power over the condemned
man, who is given over for punishment to the laws and to the persons
charged with that official duty: the accuser may be a spectator while the
condemned suffers the penalty which the law imposes, but he can do no
more.’ This quotation speaks for itself. Its value as a link in our chain
of reasoning it would be impossible to overestimate. The conclusion which
it points is indisputable.
The explanation which Demosthenes gives of this law is not, indeed, very
profound. ‘How comes this to be the case,’ he says,[191] ‘men of Athens?
Because they that made the laws originally, whoever they were, Heroes
or Gods, did not (seek to) oppress the unfortunate, but in a humane way
as far as they could with justice, they alleviated their misery.’ But
Demosthenes shows a certain clarity of vision in another place in which
he examines the question why the laws were so careful to preserve the
lives of murderers abroad. One of the reasons was, he says,[192] ‘to
prevent an infinite series in the avenging of injuries.’ We have already
quoted Euripides[193] for a similar sentiment: ‘Right well,’ he says,
‘did our ancestors in olden times enact these laws ... they punished the
murderer with exile, but they suffered no one to slay him in return, for
(in that event) each successive avenger would be liable for bloodshed.’
This sentiment may have been inspired by the atmosphere in which
Euripides himself lived, and taken in conjunction with that which we have
just cited from Demosthenes, suggests that the Greeks did not practise
the ‘private execution’ of death penalties within the living memory of
those authors. In the light of our conclusion we shall proceed to examine
the position of parricide and of kin-slaying in historical Attic law.
PARRICIDE AND KIN-SLAYING
Two problems present themselves for solution: (_a_) First of all we must
inquire whether parricide and kin-slaying were civic offences which were
punishable by State law or whether the avenging of these deeds of blood
was entirely at the discretion of the relatives and the clansmen; (_b_)
secondly, we must decide what the nature of the legal penalty was (if
the penalty was legal) in the historical era. The opinion of Glotz on
this subject has already been given in outline.[194] He suggests that the
pollution-doctrine affected the penalty for parricide, but he maintains
that it was merely a public opinion which reinforced this doctrine and
that the historical penalty was perpetual exile. The Draconian law, he
holds,[195] did not interfere in the jurisdiction of the family. ‘En
réalité Dracon n’édictait aucune sanction contre le parricide parce que
l’Etat n’avait pas à s’occuper avec cela. La juridiction de la famille
subsistait sur tous les points où elle n’était pas abolie par une
disposition expresse. La loi ne parlait donc du parricide ... toutes ces
questions échappaient à sa compétence.’[196] ‘Quand la conscience sociale
se mit à intervenir contre les criminels, elle se proposait seulement
de faire respecter les vieux usages. Elle obligea tous les meurtriers à
quitter le pays au moins pour un certain temps: le meurtrier d’un proche,
elle l’obligea ... à sortir de sa famille pour toujours.’[197]
In passing, we may note how inconsistent is this statement regarding
the exile penalty for homicide with Glotz’s favourite hypothesis of the
legality of ‘private settlement.’[198]
It is not true that the pollution-doctrine confirmed and preserved old
customs. It was in many respects opposed to them. It tolerated them only
by way of compromise. The last clause of the quotation which declares
that the penalty for kin-slaying was perpetual exile is based upon a
misinterpretation of a passage in the _Laws_ of Plato. Plato clearly
states that death was the invariable penalty for kin-slaying.[199]
The exile penalty to which Glotz refers is applied by Plato only to
extenuated or involuntary kin-slaying, and in this connexion there is
no question of perpetual exile in the ordinary sense, but merely of
banishment from the domestic hearth, not from the State or the country
of the slayer.[200] Glotz quotes various analogies, such as[201] the
Irish clan-law, which is revealed in the _Senchus Mor_, in support of his
theory. But in historical Attic law we have left behind us the clan-laws
of tribal society. We are in the presence of civic legislation and of
international religious authorisation.
Caillemer,[202] who is admittedly influenced by Glotz, holds a very
similar view. He says: ‘Il est très vraisemblable que la juridiction de
la famille ne fut pas notablement modifiée par Dracon, et que le chef de
famille garda le droit de juger et de punir sa femme, ses enfants, ses
esclaves.... Avant Solon, le chef de famille, en vertu de sa magistrature
domestique, pouvait ou bien mettre à mort la coupable, ou bien la
chasser de sa maison.... Solon n’ignorait pas qu’il y avait à Athènes
des parricides: mais il laissait à la famille le soin de les punir....
La société n’a pas à intervenir directement. Si cependant les parents
manquent à leur devoir, une action publique va être donnée contre eux
et elle pèsera de tout son poids sur l’homicide.’ The ‘public action’
which is here referred to is clearly the indictment for impiety, such as
was brought by Androtion against the uncle of Diodorus.[203] But this
indirect State interference which Caillemer is compelled by a passage in
Demosthenes to regard as admissible in cases of parricide was the only
kind of State interference which was permissible in cases of ordinary
homicide in historical Athens. If then parricide and homicide stand on
the same plane, so far as ‘social justice’ is concerned, why should we
assume a distinction between them in regard to State jurisdiction and
State execution? Caillemer attributes undue importance to an anecdote
which is related by Cicero concerning Solon.[204] ‘On demandait,’ he
says, ’un jour à Solon pourquoi il n’avait pas établi de peine contre
le parricide. “J’ai pensé,” répondit-il, “que personne ne s’en rendrait
coupable. Pourquoi statuer contre un attentat jusqu’alors sans exemple?
Le défendre pourrait en inspirer l’idée.” In view of the fact that Solon
did not change the murder-laws of Dracon, that the wording of those laws
was sufficiently general to include kin-slayers, and that Roman ideas of
jurisdiction and execution were different from those of Greece, we should
be slow to base any theory upon such an anecdote. We read in Livy[205]
that a certain P. Horatius, the father of a famous warrior who in a
moment of passionate triumph slew his sister, and who was in consequence
arraigned before the King and the Duumviri, said to the judges that he
considered his daughter was justly slain, and that otherwise he would
have punished his son by right of his parental authority.
Again, Livy tells us[206] how a certain Cassius, a consul, as soon as
he went out of office, was sentenced to death and executed. ‘There are
some who say that his father inflicted the punishment, that after putting
him on trial in private he scourged him and put him to death.’ Such
passages illustrate the well-known _patria potestas_ of a Roman father.
Yet even in Rome the State could interfere in such matters, since we find
that a Decemvir ordered the arrest and the imprisonment of a certain
Virginius who had slain his daughter.[207] Rome, however, can give us
no really valid evidence for Greek law. The power of a father to sell
his daughter as a slave, which Solon abolished, was a remnant of _patria
potestas_.[208] But Solon’s interference in such matters proves that the
sacred jurisdiction and power of the family had been already in his time
invaded by the State. All matters which concerned public morality and
utility, all matters which were affected by national or international
religion, had naturally passed out of the exclusive control of the
kindred. We have already indicated[209] the survival in historical Greece
of clan-courts and of local religious corporations. We have also quoted
Plato[210] for the operation of local jurisdictions in cases of ‘wounding
in a passion,’ between members of the same kindred.
But the religious doctrine of pollution placed the actual slaying of
kinsmen on an altogether different plane. Moreover, we believe that the
evolution of State execution affected the question of the penalty for
kin-slaying. Demosthenes, in two passages[211] recently cited, makes his
client Diodorus say that if Androtion had succeeded in the indictment for
impiety which he had brought against the uncle of Diodorus, he himself,
as a result of the indictment, would not only have lost his property but
would also have lost his life. Now such a confiscation of property must
have been a State confiscation: and the only authority which could decree
or execute such a confiscation was a State court and State officials. It
is therefore natural to assume that the death penalty would also have
been carried out by the State.
Plato describes, in hideous detail, the execution by public magistrates
of the slayer of a kinsman.[212] Even for malicious wounding within
the family, the penalty of death is decreed.[213] For wounding in a
passion, a fine could be imposed by the parent or the male kindred of
the offender: but if a parent was wounded by his child, death could be
inflicted, even by a tribal court, in which none of the relatives of the
child could act as judges.[214]
Lysias[215] makes one of his pleaders repudiate, most emphatically,
the suggestion that parricide was not criminal and illegal. The word
ἀνδροφόνος, or homicide, includes, he says, implicitly if not explicitly,
the slayer of a parent. Pollux,[216] however he be interpreted,
must be regarded as implying that parricide was a crime, which was
probably punished by the Areopagus. We have quoted the relevant passage
already.[217] Pollux is describing the Areopagus, which was the
admittedly regular court for wilful murder. He refers to the preliminary
affidavits, and, speaking of the final trial, is represented by the text
of Dindorf as saying ‘After the first speech it is lawful to go into
exile—if one has slain one’s parents’! Now, if we suppose that this text
is correct, it would follow that parricide was a State offence which
was judged by the Areopagus State court. But the same conclusion can be
maintained even if, as we believe, the text is incorrect. We believe
that Pollux wrote not εἰ but εἰ μὴ, and that he means ‘unless one slays
one’s parents.’ He clearly implies that parricide also came before the
Areopagus.
Finally, the _Euthyphro_ of Plato, which represents a man actually
bringing an indictment or a charge of murder against his father, cannot
be explained on the assumptions of Glotz and Caillemer. The weakness
of Euthyphro’s legal position is pointed out by Socrates,[218] namely
that Euthyphro was not a kinsman of the slain. The threatened indictment
was a δίκη, not a γραφὴ. It was a regular charge of homicide which was
lodged with the Archon Basileus.[219] Now Socrates’ objection would not
apply if the slain man had been a kinsman of the accuser: and this would
necessarily have been the case if the father of Euthyphro had slain a
member of his own family or kindred.
We have seen[220] that in the days of private vengeance and of tribal
society, kin-slaying was normally punished by exile, as wergeld was
impossible, and kinsmen revolted against the infliction of death. In
those days, kin-slaying was normally a matter for the jurisdiction of
the clan. In historical times, kin-slaying was punished by death and the
confiscation of property—and these penalties can no longer be regarded
as in conflict with clan-psychology, since the slayer was prosecuted in
a State Court and was executed by State officials. All these facts are
therefore quite consistent and they are mutually explanatory. It was
the doctrine of pollution and the evolution of civic government which
produced so drastic a revolution in the punishment of kin-murder.
We can now understand quite clearly the meaning of Plato’s reference to
the penalty of kin-slaying: ‘Of a kindred blood defiled,’ he says,[221]
‘there is no other cleansing, and the pollution cannot be washed away
until the life of the slayer shall atone for kin-blood by kin-blood and
appease and set to rest the anger of all the kindred. It is proper that a
person be restrained from such deeds by the fear of such punishments from
the gods.’ Euripides also expresses the same sentiment in the _Medea_.
The Chorus say[222]:
Stern upon mortals the vengeance falleth
For kin’s blood spilt: from the earth it calleth,
A voice from the gods, and the slayers appalleth,
On whose homes it shall light.
How then do we suppose that the murder of a husband by his wife, or of a
wife by her husband, was punished in Attic law? Such parties were usually
not akin by blood. Yet they lived in the same house and they ate at the
same table.[223] The penalty in this case was, we think, precisely the
same as the penalty for ordinary wilful homicide. The slayer had the
option of going into exile for ever if he fled before conviction, or of
suffering death at the hands of the public executioner if he did not
flee. Hence, perhaps, Euripides[224] is thinking of the historical Attic
law when, in the _Orestes_, he makes Tyndareus assert that Orestes should
not have slain his mother, but should have put her on trial and have
banished her as an exile for ever. We must assume that in the event of
exile the property of such slayers was confiscated, though it seems very
cruel that children whom murder and vengeance had deprived of both their
parents were compelled in addition to forfeit their patrimony.
The malicious wounding of a husband by his wife or of a wife by her
husband did not, apparently, involve such a confiscation but did involve
perpetual exile. This identical penalty is applied by Lysias to ordinary
cases of malicious wounding.[225] Hence Plato is quite authentic when
he says[226] ‘If a woman wounds her husband with intent to kill, or a
husband his wife, let (the offender) undergo a perpetual exile ... let
guardians manage the property and take care of the children as if they
were orphans.... In case there are no children let the kindred, as far as
cousins, on the male and female side, come together and appoint an heir.’
It is in cases of involuntary homicide or of homicide in a passion,
between man and wife, that the influence of the pollution doctrine
is especially apparent. The penalty for such deeds, as Plato assures
us, was perpetual exile from the family and temporary exile from the
State. Now, temporary exile, in ordinary cases of involuntary homicide,
was terminated by the ‘appeasement’ of the relatives of the slain.
The primeval tribal law in which ‘appeasement’ ultimately originated
recognised the payment of material retribution in cases of husband-wife
slaying. But the ‘pollution’ doctrine prevented the survival, in
historical times, of ‘appeasement’ in cases of this kind. Plato[227]
assures us that such offenders could never, in any circumstances, return
to dwell in their old homes with their children.
We have now completed our review of the murder-laws of Dracon. We have
not referred in this connexion to the law which related to the seizure
of hostages in default of extradition (ἀνδροληψία) because this law has
already[228] been discussed and explained. We have also omitted many
legal details, of which some will find a place in our next chapter, which
deals with Attic murder-courts, and others have not been considered
sufficiently important or sufficiently relevant to our main purpose—which
is, in effect, the philosophical explanation of the origin and evolution
of Greek homicide law.
There is one point which, in conclusion, we wish to emphasise, namely
the value and the importance of the Platonic code when considered as a
supplement to the laws of Dracon in cases where they do not directly
reproduce them. It is easy to assert that Plato is an idealist when
his ideas do not correspond with one’s pet hypotheses.[229] But what,
we may ask, was the source of Platonic idealism, and was this source
of such a kind that it would have affected the historicity of his
homicide-laws? The idealism of Plato was, we think, derived from
the Orphic-Pythagoreans, and also to some extent from the Eleatic
philosophers. His theory of ‘ideas’ originated, as Burnet has shown,[230]
with the Pythagoreans. So, Glotz rightly says[231]: ‘l’eschatologie de
Platon présente une grande cohésion. Elle vient de l’orphisme.’ Was
there, then, in Orphism any special doctrine which could have affected
Plato’s attitude to homicide? Could such a doctrine have imported new
ideas into Plato’s legislation? It is true that murderers were excluded
from the famous Mysteries at Eleusis when those Mysteries came under
Orphic domination, from 400 B.C. onwards.[232] Murderers were punished
by everlasting fire in the Orphic Tartarus,[233] and parricides and
matricides were singled out for the most severe punishment. Aristophanes
has a line[234] which has been interpreted as referring[235] to human
bloodshed,
Ὀρφεὺς μὲν γὰρ τελετὰς θ’ ἡμῖν κατέδειξε φόνων τ’ ἀπέχεσθαι:
but the φόνοι which are here mentioned denote the sacrificial slaying of
animals, to which the Orphics objected. Horace[236] puts it more clearly
when he says:
silvestres homines sacer interpresque deorum
caedibus et victu foedo deterruit Orpheus.
Orphism, then, stands in the same relation to the Apolline religion of
pollution as Christianity does to Judaic religion. It supplements the
punishment which angry deities send upon criminals here on earth by
a further punishment hereafter. But, considered as modifying factors
in the evolution of social law, the Judaic and the Apolline doctrine
of pollution are incomparably more important. We have seen that
Christianity accepted wergeld in Europe,[237] while Judaism abolished
it in Israel.[238] Orphism, as we conceive it, had no effect upon the
murder-laws of Greece. Plato was, naturally, sympathetic towards the
Orphic religion: still he does not place much trust in merely posthumous
punishment for so great a crime as homicide: and hence in his penal code
he falls back on the historical Greek laws which were the offspring
of Apolline religion, because there was no other code available. Thus
he says[239]: ‘Let our prelude include a “myth” which many of those
who seriously take to heart such matters in the mysteries have heard
and believe firmly, namely, that for such persons (_i.e._ murderers)
there is a punishment in Hades: or that it is necessary for them to
come back hither to suffer punishment according to nature (by a natural
law), to suffer from others what they had done themselves ... for him
who is persuaded ... and who terribly fears such punishment, there is
no necessity to frame a law, but for him who is not persuaded let the
following law be written thus.’ Here Plato, as a prelude to his homicide
legislation, definitely states that these laws are intended for the
general public and not for Orphic votaries. So again[240] he says: ‘Death
is not the extreme punishment: the pains spoken of in regard to such
persons (_i.e._ murderers) in Hades are still more extreme: though they
who tell such truths accomplish nothing by way of deterrence (ἀποτροπή)
for people of such a character: otherwise there would never have arisen
matricides and impious attacks on parents. Hence the punishments here in
this life for such crimes should rival in efficacy those in Hades.’ Here
we see that, despite the Orphic sympathies of Plato, he has to adopt as
his legal model the historical Greek murder code which was mainly derived
from the Apolline ‘pollution’ doctrine. He has to appeal to the religious
sanctions of Apollinism, just as in modern society Christian preachers
appeal to Judaic doctrines when a more ideal and higher conception of
religion fails to deter the shedder of blood. The homicide code of Plato
was therefore not affected by Orphic ideas. It was based on the Attic
code of Dracon, and also on local traditions, or, as Glotz would describe
it,[241] ‘la vieille jurisprudence des exégètes.’
FOOTNOTES
[1] _Das attische Recht_, vol. i. p. 17.
[2] _Op. cit._ p. 377; Arist. _Ath. Pol._ 35.
[3] Pollux, viii. 125; Plutarch, _Solon_, 19.
[4] _Infra_, p. 269 ff.
[5] _Supra_, p. 180.
[6] Aristotle, _Ath. Pol._ 7.
[7] _Supra_, p. 143.
[8] Dareste-Hassouillier-Reinach, _I.J.G._ No. xxi. ll. 10-19 (vol. i. p.
3 ff.); see also Hicks and Hill, _Gk. Hist. Inscript._ p. 113; Philippi,
_Areopag._, p. 335.
[9] Philippi, _Areopag._, pp. 335-337, proposes to restore the end of
l. 12 as follows: ἢ βουλεύσεως τὸν ἀεὶ βασιλεύσαντα. For ἐσέσθων (l.
18), Demosthenes gives αἰδεσάσθων, _c. Macart._ 1069. The unrestored
inscription has εσεσθ... (l. 18).
[10] Andocides, _de Myst._ 94; Dem. _contra Conon_. 1264, 20.
[11] Gilbert, _G.C.A._ (Eng. trans.), p. 126; Hicks and Hill, _op. cit._
p. 114.
[12] _Ath. Pol._ 57.
[13] _C. Macart._ 1069.
[13A] ἐσέσθων from ἔσίημι.
[14] _Areop._ p. 238.
[15] ix. ch. 9; _infra_, p. 210 ff.
[16] _Tetralogies_, ii. 4, iii. 2, iii. 3.
[17] _Eum._ p. 141.
[18] _Areop._ p. 16.
[19] _Ath. Pol._ 57; _infra_, p. 250.
[20] Homer, _Il._ xviii. 500.
[21] _Op. cit._ p. 190; _supra_, p. 92.
[22] _Op. cit._ pp. 32-40, 173, 439.
[23] See _infra_, pp. 201 ff.; 256.
[24] See _infra_, p. 204.
[25] _Infra_, p. 263 ff.
[26] _Infra_, p. 268.
[27] Philippi, _Areop._ pp. 138-9.
[28] _Supra_, p. 85 f.
[29] _Supra_, p. 143 ff.
[30] _Op. cit._ pp. 311, 324.
[31] _Infra_, p. 209 f.
[32] _Supra_, p. 174 ff.
[33] But see _infra_, p. 213.
[34] P. 302; _supra_, p. 53.
[35] _Op. cit._ p. 173.
[36] See _supra_, pp. 82, 93.
[37] Coulanges, _op. cit._ pp. 169-176, 252, 360, 367, 376.
[38] _Ib._ p. 331.
[39] _Supra_, p. 88.
[40] _Supra_, p. 85.
[41] _Eum._ p. 93.
[42] _Op. cit._ p. 105.
[43] _Op. cit._ pp. 180, 234, 537, 594.
[44] _Areop._ p. 148.
[45] _Laws_, ix. ch. 12.
[46] See, _e.g._, Müller, _Eum._ p. 142, and _supra_, p. 197.
[47] _Exodus_, xxi. 28-36.
[48] _In Aristoc._ 645. _Cf._ Pausanias, i. 28, Aristotle, _Ath. Pol._ 57.
[49] ἀνάκρισις.
[50] _Laws_, ix. ch. 12.
[51] _Supra_, p. 196.
[52] _Infra_, p. 258 ff.; Arist. _Ath. Pol._ 52.
[53] οἵ ἕνδεκα.
[54] _Ath. Pol._ 57.
[55] viii. 120, also viii. 90.
[56] ἀφυλαξία.
[57] Paus. i. 3. 14; Plato, _Euthyphro_, 2; Pollux, viii. 90.
[58] μὴ ἐκ προνοίας.
[59] Aristotle, _Ath. Pol._ 57, 3.
[60] _Ib._ 57, 2.
[61] See _supra_, pp. 88, 200 ff.
[62] _C. Macart._ 1069; ἐντὸς ἀνεψιότητος is usually interpreted ‘nearer
than cousins’: we read ἀνεψιούς instead of ἀνεψιοῦ; as the word recurs,
we translate it, in the second instance, as ‘cousins-in-law’: we
interpret ἀνεψιαδούς as sons of female cousins.
[63] ἐὰν δὲ αἰδέσασθαι δέῃ, ἐὰν μὲν πατὴρ ᾗ ἢ ἀδελφὸς ἢ υἱεῖς, πάντας ἢ
τὸν κωλύοντα κρατεῖν. ἐὰν δὲ τοὺτων μηδεὶς ᾖ, κτείνῃ δ’ ἄκων, γνῶσι δ’ οἱ
πεντήκοντα καὶ εἷς ἢ οἱ ἐφέται, ἄκοντα κτεῖναι, αἰδεσάσθων οἱ πράτορες
ἐὰν θέλωσι, δέκα. τούτους δ’ οἱ πεντήκοντα καὶ εἷς ἀριστίνδην αἱρείσθων.
[64] _Supra_, p. 143 ff.
[65] _Op. cit._ pp. 314-316, p. 324.
[66] _Eum._ p. 93.
[67] _Supra_, p. 174 ff.
[68] _In Aristoc._ 634-5.
[69] See Müller, _Eum._ p. 93.
[70] _In Aristoc._ 643-4.
[71] Glotz takes this word too literally, _op. cit._ p. 311 ff.
[72] _Supra_, p. 178.
[73] _Laws_, ix. ch. 9.
[74] _Supra_, pp. 163, 173.
[75] _Laws_, ix. ch. 9.
[76] Xen. _Mem._ i. 3. 13; see Müller, _Eum._ p. 94.
[77] _Supra_, p. 163.
[78] Plato, _Laws_, ix. ch. 8.
[79] _Supra_, p. 8.
[80] _Supra_, p. 146.
[81] _Supra_, p. 108.
[82] _Supra_, p. 143 ff.
[83] _Supra_, p. 196.
[84] See _infra_, pp. 278, 295, 347.
[85] See _infra_, p. 291 ff.
[86] _Laws_, ix. ch. 9.
[87] See Aeschylus, _Eumenides_.
[88] See Euripides, _Orestes_, 1645 ff.
[89] _Infra_, p. 352.
[90] _Ath. Pol._ 57.
[91] _In Aristoc._ 629-639.
[92] _Laws_, ix. chs. 8, 12.
[93] _In Aristoc._ 639.
[94] _Ib._ 629.
[95] _Ib._ 636.
[96] Ch. 8.
[97] Ch. 12.
[98] _Supra_, p. 161.
[99] _Infra_, p. 240 ff.
[100] _Tetralogy_, i. 5.
[101] _Supra_, p. 192.
[102] _Supra_, pp. 59, 74.
[103] _Areop._ p. 5.
[104] i. 28. 10.
[105] See ix. 36. 4.
[106] Dem. _in Aristoc._ 634.
[107] Dem. _in Aristoc._ 632.
[108] _Ib._ 629.
[109] 528.
[110] _Laws_, ix. ch. 11.
[111] _In Aristoc._ 643.
[112] τὸν πρότερον ἔξεστιν εἰπόντα λόγον μεταστῆναι.
[113] viii. 117.
[114] See Dindorf _ad loc._
[115] _Infra_, p. 233 ff.
[116] _E.g._ Smith, _Dict. Gk. Ant._, _s.v._ φόνος, vol. ii. p. 385.
[117] _Supra_, p. 9 ff.
[118] P. 238; _supra_, p. 81.
[119] _Supra_, p. 7.
[120] _Supra_, pp. 93, 144.
[121] Glotz, p. 521.
[122] Dem. _in Timocr._ 702; _infra_, p. 236 ff.
[123] _De Myst._ 149-150. See also Plato, _Laws_, iv. ch. 2.
[124] P. 523 ff.
[125] _Supra_, p. 189.
[126] E.g. _in Aristoc._ 644.
[127] _Infra_, p. 225.
[128] _Against Meidias_, 528.
[129] _Ath. Pol._ 47.
[130] viii. 99.
[131] Pp. 516-539.
[132] _On the murder of Eratosthenes_, 50.
[133] _Areop._ pp. 112-125.
[134] _Att. Proc._ (1st ed.), p. 307.
[135] _Op. cit._ p. 517.
[136] P. 578.
[137] i. 2.
[138] _Op. cit._ p. 316.
[139] _Supra_, p. 175.
[140] Pp. 319 ff., 377.
[141] _Supra_, p. 173 ff.
[142] _Laws_, ix. ch. 11.
[143] _Infra_, p. 231.
[144] See _supra_, p. 106 ff.
[145] _In Timocr._ 702; _infra_, p. 232.
[146] See Smith, _Dict. Gk. Ant._ vol. ii. p. 386.
[147] 94.
[148] _In Aristoc._ 632.
[149] _Laws_, ix. ch. 11.
[150] _C. Conon._ 1264, 20.
[151] _Ath. Pol._ 39.
[152] 75, 416, 600, 770.
[153] 1294, 1300.
[154] 485.
[155] 340, 810.
[156] 280, 1020.
[157] _Supra_, p. 194.
[158] _Op. cit._ pp. 443, 612 ff.
[159] 1264 (Reiske).
[160] _Cf._ phrase κτείνων ἢ ἐπιχειρῶν in law of Solon _re_ tyrannicide,
Andoc. _de Myst._ 98.
[161] Lysias, _c. Simon._ 42.
[162] Plato, _Laws_, ix. ch. 14; Andocides, _de Myst._ 94.
[163] Plato, _Laws_, ix. ch. 13; Dem. _c. Conon._ 1262.
[164] _Gk. Const. Ant._ p. 380.
[165] P. 308.
[166] P. 307.
[167] Pp. 308-309.
[168] P. 306.
[169] P. 312.
[170] _Supra_, p. 214.
[171] Pp. 317, 322.
[172] _Supra_, pp. 60, 76.
[173] _Ancient Law_, p. 217; _supra_, p. 82.
[174] Thuc. i. 2.
[175] See, e.g., _Joshua_, xx. 1-9.
[176] See _infra_, p. 406.
[177] See _infra_, p. 411.
[178] _Andromache_, 1095-1200.
[179] _Supra_, p. 143 ff.
[180] _Infra_, p. 263 ff.
[181] _C. Agorat._ 135, 56.
[182] λαβόντες ἐν δικαστηρίῳ ὡς ἀνδροφόνον ὄντα.
[183] _Laws_, ix. ch. 11.
[184] _Ib._ ch. 12.
[185] Παραπρεσβ. 181-2.
[186] P. 309.
[187] _In Timocr._ 702.
[188] _Infra_, p. 260.
[189] P. 438.
[190] _In Aristoc._ 642. 25-643.
[191] _In Aristoc._ 643.
[192] _Ib._ 632, 20.
[193] _Orestes_, 497 ff.; _supra_, p. 62.
[194] _Supra_, p. 181.
[195] _Op. cit._ p. 321.
[196] _Ib._ p. 322.
[197] _Ib._ p. 235.
[198] _Supra_, p. 174 ff.
[199] _Laws_, ix. ch. 12.
[200] _Ib._ ch. 9.
[201] _Op. cit._ p. 323.
[202] See Art. in Daremberg and Saglio, p. 441.
[203] Dem. _in Androtion._ 593; _in Timoc._ 702.
[204] _Op. cit._ p. 442; Cic. _pro Roscio Amico_, xxv. 70.
[205] i. 26.
[206] ii. 41.
[207] Livy, iii. 48.