[208] Glotz, _op. cit._ p. 350.

[209] _Supra_, p. 84 ff.

[210] _Laws_, ix. ch. 15.

[211] _In Timoc._ 702; _in Androtion._ 593.

[212] _Laws_, ix. ch. 12.

[213] _Ib._ ch. 14.

[214] _Ib._ ch. 15; _cf._ Andocides, _de Myst._ 74: ἄτιμοι ἦσαν τὰ

σώματα, τὰ δὲ χρήματα εἶχον.

[215] _C. Theomnest._ 116, 7-8.

[216] viii. 117.

[217] _Supra_, p. 218.

[218] 4C.

[219] 2A-3E.

[220] _Supra_, p. 9.

[221] _Laws_, ix. ch. 12.

[222] 1270 (trans. A. S. Way); _cf._ 1339, also _Her. Furens_, 1280, 1325.

[223] See Eur. _Alcestis_, 534.

[224] _Orestes_, 497 ff.

[225] _C. Simon._ 42; _supra_, p. 225.

[226] _Laws_, ix. ch. 14; _cf._ Andocides, _de Myst._ 74-75.

[227] _Laws_, ix. ch. 9.

[228] _Supra_, p. 164 ff.

[229] See Glotz, _op. cit._ pp. 537, 594, and contrast p. 234.

[230] _Phaedo_, Introduction, p. xliv.

[231] P. 594.

[232] See Smith, _Dict. Gk. Ant._, _s.v._ ‘Eleusinia,’ vol. i. p. 722;

Isocrates, _Panegyr._ 42.

[233] Plato, _Phaedo_, 113E-114; _Laws_, ix. ch. 17.

[234] _Frogs_, 1032.

[235] Harrison, _Proleg._ p. 470; Pausanias, ix. 30.

[236] _Ars Poetica_, 391.

[237] _Supra_, p. 9 ff.

[238] _Supra_, pp. 3, 140.

[239] _Laws_, ix. ch. 10.

[240] _Op. cit._ ch. 17.

[241] P. 234.

CHAPTER III

ATTIC HOMICIDE-COURTS

Attic legends concerning origin of courts for homicide: the

accounts of Pollux, of Aristotle, of Demosthenes: question of a

γραφὴ φόνου: Plato’s _Euthyphro_: author’s theory of the origin

of Attic courts for homicide: Dracon and the Ephetae: Solon and

the Areopagus: the Exegetae.

In an earlier section[1] of this work we have explained what we consider

to have been the origin and the evolution of judicial investigation

in matters of homicide. We have said[2] that ‘the evolution of early

Greek judicial authority is not a transition from a crude arbitrary

local jurisdiction to an efficient central compulsory jurisdiction

but rather a gradual extension to wider areas, in accordance with

increasing political synoekism, of the judicial functions which had

been previously discharged with equal authority within smaller areas.’

The influence of the ‘pollution’ doctrine in compelling the State to

investigate and to adjudicate concerning degrees of blood-guiltiness has

also been clearly shown.[3] We shall now apply our conclusions to the

Attic homicide courts—the only Greek courts of which we have any precise

and authentic knowledge. The actual origin of the Athenian courts is

surrounded by mystery and obscurity. Many of the legends which refer

to their foundation are clearly the fabrications of men who were born

when these courts were already old. Places which in later times came

to be notoriously associated with the courts which sat there to give

judgment in homicide cases, had previously, in many instances, been

consecrated by legends which had no connexion with homicide at all.

The ‘Areopagus,’ for example, that is, the Hill of Ares, may have been

at one time the scene of a battle in which Theseus, an Ionian King of

Attica, proved victorious. The place would then naturally have come to

be called ‘the Hill of Ares.’ Aeschylus[4] says that the hill got its

name from the sacrifice which was offered to Ares by the Amazons whom

Theseus defeated. Glotz points out that there was no temple of Ares on

the Areopagus, and he holds that the connexion of Ares with this hill

was derived from a time when Ares signified not only war but murder, as

in the Homeric phrase, Ἄρεω ἀλκτήρ (avenger of blood).[5] This homicidal

rôle of Ares, and, moreover, the existence of an altar of Athene

_Areia_ at the Areopagus, which is referred to by Pausanias, explains,

he thinks, the real origin of the place-name. But Pausanias was not of

this opinion. ‘Here also,’ he says, ‘is the Areopagus, so called because

Ares was first tried here.’[6] This is really a third hypothesis as to

the meaning of the word. Aeschylus gives also a fourth explanation. The

place may be called, he suggests,[7] from the Erinnyes who here became

‘appeased’ under the form of Semnai Theai, but who were called _Arai_ or

Curses beneath the earth. The main point of interest in this confusion of

opinions is that the hill called the Areopagus was in historical times so

closely associated with trials for homicide that Ares had to be conceived

as a murderer in order to retain his connexion with the place. Orestes,

whose sojourn at Athens, as Homer relates it, had no connexion with

homicide,[8] was associated, in legend, with the Areopagus to such an

extent that Ares was almost eclipsed and the Athenians found it difficult

to decide whose trial came first! Demosthenes[9] wisely refrains from

deciding. ‘In ancient times,’ he says, ‘as we are informed by tradition,

the gods on this tribunal alone deigned to demand and render justice for

murder.... Poseidon claimed justice against Ares because of the murder

of his son Halirrhothius, and the Twelve Gods sat in judgment between

the Erinnyes and Orestes. Such are its ancient glories.’ Aeschylus is

naturally led by dramatic considerations to regard the trial of Orestes

as the first[10] Athenian murder-trial: and therefore, out of courtesy to

Ares, he is led to reject the legend that Ares was a murderer, in favour

of what we believe to have been an older story, namely that Ares was a

war god to whom, on that hill, the Amazons sacrificed when they were

overthrown by Theseus.[11] Euripides[12] accepts as a fact the trial of

Ares on the Areopagus, but he places it prior to the trial of Orestes. It

is quite impossible to base any historical reasoning upon such legends.

The mention of the Areopagus in a law of Dracon—or rather, as we think,

in a Solonian modification of it—is the only genuine evidence for the

antiquity of the Court.

Similarly, in regard to the Delphinium, Pausanias implies that it was

believed to be as old as Theseus: but we have not the least doubt that

its exclusive association with pleas of justifiable homicide was a

product of the seventh and sixth centuries B.C. Pausanias says[13]: ‘The

Delphinium is the court for those who plead that they have committed

justifiable homicide, which was the plea of Theseus when he was acquitted

for killing Pallas and his sons ... and before the acquittal of Theseus

every manslayer had to flee for his life.’ Such statements belong to

the region of aetiological legend, but not to that of historical fact.

Theseus slew Pallas and his sons in war[14]; hence his act was not

homicide in the ordinary sense. We have seen that in Homer[15] Pelasgian

manslayers had not to flee, for they could pay their share of the wergeld

and remain in the home of their fathers. It is strange that Orestes was

not more definitely connected with the Delphinium court, for his plea

in most legends was justifiable homicide. Demosthenes suggests that

Orestes’ acquittal by the Areopagus was the cause of the establishment of

the Delphinium.[16] But Orestes was bound to the Areopagus by ‘hooks of

steel’ and he could not be divorced from it! We have little doubt that

the Delphinium was a temple of Apollo at Athens long before it became

associated with homicide-trials. Legends which explain it as the court of

Apollo the Delphian justifier of Orestes, or of Apollo the justifiable

slayer of the Δελφίνη, or Python,[17] do not prove that the distinction

between justifiable and unjustifiable homicide originated in or had any

essential connexion with this temple.

Legend is equally powerless to explain the birth of the Palladium court.

Pollux is content to give a legend which explains only the origin of the

temple, and even this story is probably fictitious.[18] Pausanias[19]

tells us a similar tale about the Argives and the wooden image of Pallas,

but in order to account for the origin of the court as distinct from the

temple, he relates that Demophon, son of Theseus, was tried here for

having slain, in an attack upon the Argives, an Athenian citizen whom in

the confusion he had not recognised as such. But we have seen[20] that

such slaying, in Attic law, was justifiably accidental homicide, not

manslaughter. Yet Pausanias fancies that he is explaining the origin of a

manslaughter court! No wonder that he feels that ‘the reason why he was

tried is a matter of dispute.’[21]

In his account of the Prytaneum court which tried inanimate objects or

animals guilty of bloodshed and which also brought in verdicts against

unknown murderers, Pausanias[22] refers to the ceremony of slaying an ox

at the Bouphonia. ‘They call one of the priests,’ he says, ‘Ox-Killer,

and he, after throwing the axe, runs away, for that is the usage: and,

as if they did not know who had done the deed, they bring the axe into

court as defendant.’ The first instance of such a trial occurred, he

thinks,[23] in the time of Erechtheus: ‘Then first did Ox-Killer kill

an ox, and left the axe and fled the country, and the axe was forthwith

acquitted after trial and is tried annually even nowadays.’ Pausanias

is probably correct in attributing to the Prytaneum an ancient origin.

But the Bouphonia belongs to a different strand of development from that

in which originated the trial of inanimate objects. There is a stage

in the evolution of ancient religion in which the slaying of an animal

was a religious offence and needed expiation.[24] This stage is quite

independent of that in which the shedding of human blood became sinful.

(We speak, of course, only of ordinary homicide, for in the earliest

days[25] the slaying of a kinsman was a sin against the family ghosts

and the gods of the hearth.) Now, the tabu against animal sacrifice

had probably disappeared, in Greece, long before the seventh century

B.C. when the tabu against human bloodshed had set in. But ritual is

conservative, and the original rite of the Bouphonia continued to be

carried out at a time when its meaning was lost and its origin forgotten.

A new meaning—but a wrong meaning—was grafted upon this rite, a meaning

which is derived from the trial of guilty animals and inanimate objects

in the central Prytaneum court. Now this central trial was forced upon

the State by the doctrine of pollution in the seventh century. The

trial of animals at the Prytaneum cannot therefore be explained by the

Bouphonic rite. The account of Pausanias is therefore misleading. We do

not assert that the trial of animals and of inanimate objects in local

courts was not as old as the Bouphonic rite. There is no time-limit to

the antiquity of a jurisdiction which was necessary for the assessment of

material damages, in such cases, in tribal society. This jurisdiction was

also, we believe, appealed to in pleas of accidental homicide, as well as

in cases where the slayer was unknown. But there is a vast gulf between

local and central jurisdiction in such matters. Synoekism and ‘pollution’

were the two factors which bridged that gulf, but that result cannot have

been earlier than the seventh century B.C. Hence we assert that the two

events which are connected by Pausanias belong to two different strands

of development.

Finally, in regard to the homicide court at Phreatto, legend is

particularly at fault. Is this because the court was established very

late, or is it that the conception on which the court was based could not

easily have found analogies in the distant past? The latter, we believe,

is the more correct explanation. The court at Phreatto was clearly and

unmistakably derived from the religion of ‘pollution.’ The defendant

pleaded from the deck of a ship and was not permitted to set foot on

the shore.[26] This court had jurisdiction in the event of a person,

who was already exiled for manslaughter, being afterwards, before his

exile terminated, indicted for murder.[26] We may refer both accusations

to the same act or to different acts. We may suppose, either that new

evidence had been obtained which destroyed the plea of manslaughter

guilt which had once been successfully advanced, or that an entirely

new deed of blood had been laid at the door of the exile. It would have

been clearly very difficult to find archaic facts so similar in general

outline to such events that they could have been perverted so as to

form archaic precedents. Legend[27] revealed no better precedent than

the story of Teucer pleading innocence for the death of Ajax! This plea

was made to Telamon of Salamis, before Salamis became Athenian, and is

therefore entirely irrelevant. The name Phreatto seems to be derived

from φρέαρ, φρέατος, which denoted an enclosed area of the sea near the

Peiraeus where the court sat.[28] The origin of this court belongs to

the pollution era, but that fact does not prove that its origin was very

much later than that of the other courts, if we regard these other courts

as centres of official State judicature functioning compulsorily under

the influence of the ‘pollution’ religion. We maintain that there were

courts for homicide from time immemorial in tribal Greece. But it was the

seventh century that saw the birth of the Attic murder courts in that

particular rôle which they fulfilled, with some slight modifications in

respect of the distribution of labour in historical times.

As we cannot then derive any assistance from the legends in our attempt

to describe the evolution of the Attic murder-courts, we are compelled

to begin, so to speak, at the other end, and by arguing from survivals,

to reconstruct the most probable mode of evolution from an analysis of

historical facts.

We will begin with the synoptic account of Pollux[29] which is as follows:

(1) _The Areopagus_ ‘judged (charges of) wilful murder and wounding with

intent to kill, arson and the administering of drugs, if a person gives

them with intent to kill.’ This account is identical in fact with that

of Dracon’s law, as Demosthenes[30] quotes it. It is therefore probably

based upon the Demosthenic passage or upon an archaic inscription. The

clause φόνου καὶ τραύματος ἐκ προνοίας καὶ πυρκαϊᾶς καὶ φαρμάκων occurs

both in Pollux and in Demosthenes.[31] Pollux adds that the nine archons

were added to the _Areopagites_, and that they held their trials in the

open air.

(2) _The Palladium_: ‘in this court are heard charges of involuntary

slaying.’ Pausanias[32] corrects this account, though he is not himself

very precise, when he says: ‘Murder-cases are taken in this court ...

in which are also tried cases of manslaughter.’ Further details we shall

presently adduce from Aristotle and from Demosthenes; we shall see[33]

that this court tried no murder-cases except those which occurred between

strangers.

(3) _The Delphinium_: the trials in this court are modelled, Pollux

suggests, on that of Theseus and the Pallantidae ‘whom he admitted that

he slew but asserted that he had justly slain.’

(4) _The Prytaneum_ ‘judges about those who have slain, if they are

unknown (ἀφανεῖς), and about inanimate objects which have fallen upon and

slain (persons). The Tribe-Kings, whose duty it is to cast the fallen

object over the (civic) boundaries, preside over this court.’

(5) The Court at _Phreatto_: ‘in this court anyone was tried who, being

an exile for involuntary homicide, becomes liable to a second charge of

wilful murder. The Court was by the sea; the accused had to make his

defence from the ship, without touching the land....’

Pollux[34] then proceeds to describe the _Heliastic_ courts, which were

five or six in number. Pausanias[35] mentions four of these courts,

namely: (1) The Crush; (2) The Triangle; (3) The Froggy and (4) The

Scarlet. From this description of them we may infer that these courts

were always distinguished in procedure if not in personnel from the

famous Ephetae courts. One of these Heliastic courts which Pollux

mentions is the court of the ‘Eleven’ Gaol-Commissioners. These officials

had summary jurisdiction in certain cases. Aristotle[36] mentions the

cases of ‘thieves, kidnappers and highway robbers’ who confessed their

guilt. Demosthenes[37] refers to a prison court in which an accused but

unconvicted murderer who was found frequenting temples or public places

could be summarily tried and put to death. We shall discuss this court

more fully presently. It seems to us to be properly described as a

special kind of Heliastic court: for the Eleven were appointed, like the

ordinary Heliasts, by lot.[38]

Whether the Heliastic jurors in the fourth century were compelled to

occupy separate places of jurisdiction from the Ephetae or whether

they also sat in the actual Ephetae courts is a difficult question to

decide. One thing at least is certain, as Lipsius points out.[39] The

mode of procedure in the old courts remained peculiar and distinct. When

therefore Antiphon[40] makes a pleader, in a homicide charge, object

that ‘here there is no open-air trial, no customary giving and taking

of oaths,’ we know that the trial is by Heliastic jurors in a Heliastic

court. No mere change of personnel from that of the Ephetae or nobles

to that of democratic jurors was so drastic as the legal sanction of an

alternative procedure which entirely lacked the religious traditional

prestige of the older Ephetae courts.

Aristotle’s account[41] of the five great homicide courts is very similar

to that of Pollux:

(1) _The Areopagus_: Homicide with malice aforethought (_i.e._ wilful

murder) is tried in the Areopagus, wounding with intent to kill,[42]

poisoning with intent to kill, and arson: these are the only indictments

tried by the Areopagus.

(2) _The Palladium_: Involuntary homicide, attempts to commit homicide

(βούλευσις), and the homicide of a slave, or a foreigner domiciled or

undomiciled, are tried in the Palladium.

(3) _The Delphinium_: Homicide avowed and alleged to be lawful, as of a

surprised adulterer, or in war of a friend mistaken for an enemy, or of

an antagonist in an athletic contest, is tried in the Delphinium.

(4) _The Prytaneum_: the King-Archon and the Tribe-Kings judge

indictments of inanimate objects and of animals.

(5) _Phreatto_: If an exile for involuntary homicide has not yet obtained

permission from the relatives of the deceased to return, and is charged

with another homicide or with wounding, he is tried at Phreatto. He

pleads from the deck of a vessel brought to land.

Aristotle adds that ‘the jurors are appointed by lot, except in the

case of the Areopagus. The “King” (_i.e._ the King-Archon) introduces

indictments: the courts sit by night and in the open air, and when the

“King” takes his place in any court, he lays aside his crown.[43] If the

name of the homicide is unknown, the indictment is prosecuted in general

terms against the unknown author.’

In these extracts we must indicate some points of interest. (1) The

jurisdiction of the Areopagus, according to Poste’s interpretation,

extended only to cases in which human life was actually taken, and

deliberately taken: obviously therefore it did not include all cases

of arson. But according to the usual interpretation, which we accept,

arson of any kind was included in its jurisdiction, and so was malicious

wounding which did not end in death. (2) In Aristotle’s account of the

Palladium, the word βούλευσις must mean ‘attempted murder’ which did not

succeed in inflicting any physical injury.[44] It cannot, as Lipsius[45]

thinks, include ‘contriving death,’ which, according to Demosthenes,[46]

was tried by the Areopagus. (3) The Palladium adjudicated in cases of

wilful homicide between foreigners. Pausanias also attributes this

function to this court, as we have shown.[47]

The Athenian Areopagus had a very chequered career. Solon is generally

regarded as its creator, and in his time it functioned as a Council of

State with very wide supervisory powers. But about the year 460 B.C.

Ephialtes and Pericles[48] restricted the function of the Areopagus

to the trial of wilful murder, and of cases of arson and poisoning

which included actual intentional slaying. About the same time the

archonship was thrown open to the poorer citizens, so that the personnel

of the court became more democratic.[49] Pollux and Aristotle agree in

assigning to the Areopagus functions which it continued to discharge,

despite the vicissitudes of fortune, from the sixth century onwards.

When Aristotle says that the Athenian jurors were appointed by lot,[50]

he refers, clearly, to the Heliastic courts and not to the Areopagus.

The Areopagus court, which was composed for the most part of Archons

and ex-Archons, was on quite a different plane. Similarly the Ephetae

judges were probably not chosen by lot, since they were members of the

old aristocracy of birth. Aristotle does not expressly mention the

Ephetae. Yet we cannot suppose that they were ever completely deprived of

jurisdiction in homicide cases. Harpocration[51] says that the jurors

in all the great homicide courts except the Areopagus were Ephetae;

that they were fifty-one in number, and were chosen according to the

qualification of birth. The statement of Pollux[52] that ‘the Ephetae

judged in the five courts’ applies only, we shall see, to Dracon’s time.

When he adds: ‘gradually the jurisdiction of the Ephetae was regarded as

a joke’ (κατεγελάσθη), we can hardly suppose that he is comparing them

with the Areopagus, but rather with the Heliastic jurors. But he implies

at least that the Ephetae continued to function as judges and that they

were never confused with the Heliastic jurors. If then in Aristotle’s

time the judges at the Palladium, Delphinium and Phreatto are Heliasts,

we must conclude not that the Ephetae had ceased to exist, but that

democracy had invaded their jurisdiction to the extent of permitting an

option in the personnel of the court, though the traditional procedure

of the court was maintained. We shall see that the Areopagus and the

four Ephetae courts were regarded with reverential awe in the time of

Demosthenes. We do not know to what period Pollux refers when he says

that ‘the court of the Ephetae was regarded as a joke.’ It is probable

that the Heliasts had the option of sitting in such courts, and this fact

may have preserved for them at least a remnant of their old prestige. But

the main cause of the reverence which these courts inspired was their

traditional procedure. The King-Archon when he presided at the Areopagus

laid aside his crown.[53] According to our interpretation of Aristotle,

he also laid aside his crown when he sat amongst the Heliastic jurors in

the Ephetae courts. This act was not a tribute paid by obsolete monarchy

or aristocracy to victorious democracy. It was an act which the religious

atmosphere of the Areopagus and of the Ephetae courts had enshrined in

traditional custom. It was an act which fully harmonised with the solemn

procedure of these courts, with their traditional nocturnal sessions, in

the open air, beneath the dark sky and the cold stars.

We will now quote some extracts from Demosthenes in relation to the

Athenian homicide-courts:

(1) _The Areopagus._[54] ‘There are many institutions amongst us of a

character not elsewhere found, but the most characteristic and venerable

of all is the court of the Areopagus ... in ancient times, as tradition

tells us, the gods deigned in this court alone to demand and to render

justice for murder and to sit and judge mutual disputes: Poseidon sued

Ares for having slain his son Halirrhothius,[55] and the twelve gods

judge the suit of the Erinnyes and of Orestes: this tribunal neither

tyrant nor oligarchy nor democracy has ventured to deprive of its

jurisdiction in murder cases: everyone knows that any process of popular

invention would be less efficacious than that of the Areopagus ...

of this court only is it true that no convicted criminal or defeated

plaintiff has ever assailed the propriety of its verdict. For all know

that in the Areopagus where the law permits and commands proceedings

for homicide to be taken, the person who charges another with such a

crime will take an oath with imprecations on his family and his house:

it is no ordinary oath that he has to swear ... he must stand upon the

entrails of a boar and a ram and a bull: these animals must have been

sacrificed by the proper persons and on the appointed days so that both

in regard to time and to officiating persons every due solemnity may

have been observed. Even then the person who has sworn such an oath is

not yet believed, but if he is convicted of falsehood, he will carry

away the curse of perjury upon his children and his posterity.’ The

solemn procedure here described is also referred to by Antiphon[56]: and

Lysias[57] assures us that ‘the plaintiff swears that the defendant was

the slayer, the defendant swears that he did not slay.’ Pollux[58] states

that both plaintiff and defendant were required to confine themselves to

the point at issue and to abstain from any attempt to excite sympathy or

compassion. What a contrast this picture presents to the procedure in

a democratic Heliastic court composed of five hundred or seven hundred

Athenian citizens, sitting together at the _Crush_, at the _Triangle_,

at the _Froggy_ or at the _Scarlet_![59] When Demosthenes says that the

Areopagus was never deprived of its jurisdiction on homicide, not even by

the democracy, we feel that he is acutely conscious of the contrast in

the procedure of the Areopagus and of the Heliastic courts, as Antiphon

certainly is[60]: we may also infer that some such democratic invasion

had occurred in the case of the four other homicide courts in which the

Ephetae at one time had exclusive jurisdiction.

(2) _The Palladium_[61]—the court for involuntary homicide: ‘here it is

the law that both parties should first take oath (διωμοσία), then deliver

their speeches, and finally that the court should decide.’ Demosthenes

gives no further details, but the missing information is supplied by

Aristotle and by Pausanias. We shall see presently[62] that at one

period this court probably tried all kinds of homicide pleas between

citizens. The legend[63] concerning Demophon’s plea at this court must

have originated at such a period. But the court had developed, we think,

before the time of Solon a specialised function in regard to pleas of

involuntary homicide. The reason for this was, perhaps, because it was

situated outside the city boundary and would naturally therefore have

been selected as a court of appeal by exiles who had been convicted

of manslaughter and who were anxious to return. Hence in Solon’s time

this court was habitually appealed to by the citizens in charges of

manslaughter. If it still continued to hear pleas of wilful murder

between foreigners, this was perhaps because such pleas were regarded

as of minor importance. In such cases no Athenian court could decree or

execute the penalty of confiscation, since the slayers were foreigners,

and their property was not subject to Athenian control. It is also

possible that the laws of extradition (ἀνδροληψία) made it desirable to

judge cases of homicide between foreigners at a court which was outside

the original boundary of the city.

(3) _The Delphinium_[64]: ‘There is a third tribunal, of all courts the

most sacred and filled with awe, in which a person acknowledges that he

has slain another but contends that he has done it lawfully. This is the

court at the Delphinium. It appears to me, men of Athens, that they who

originally distinguished the lawful from the unlawful inquired whether

it was right to consider no homicide lawful, or whether a certain kind

of homicide must be considered lawful.... Considering then that Orestes

who admitted that he slew his mother was acquitted by a tribunal of gods,

they decided that some kinds of homicide were justifiable.... Having come

to that decision they defined in precise terms the circumstances in which

it was lawful to kill.’ What a halo of sanctity still seems to surround

this Delphinium court! In ancient societies it was much less difficult to

ascertain the identity of a slayer than it was to define the boundaries

of righteous and unrighteous slaying. But once the boundary lines were

fixed, and we have seen[65] how they were fixed by a law of Dracon, the

judgment resolved itself into a question of facts. Apart from religion,

however, facts may be obscured by perjury. Hence it was probably the

religious atmosphere of the court, and also its procedure, which was

consecrated by long tradition, that caused the verdicts of the court to

be revered and respected.

We may ask whether, in the event of a verdict for the defendant (the

accuser), this court could have condemned the vanquished plaintiff to

death? We agree with Lipsius[66] that theoretically it could have done

so. In practice, however, it rarely did so, because the Archon Basileus

must have previously estimated the balance of guilt in favour of the

plaintiff (accused), and if he were vanquished at the Delphinium it

was probably open to him to advance a further plea of manslaughter in

the Palladium. The real meaning of a verdict of this court against

the plaintiff was an imputation of some degree of homicide guilt, not

necessarily the full guilt of wilful murder.

The attempt[67] to connect Orestes with the institution of this court

is very interesting, but it is not successful. If it was the Areopagus

which really acquitted Orestes, why did the Athenians set up a new court

for such pleas? If it was the Delphinium, then why did legend connect

him with the Areopagus? According to one account it was the gods who

acquitted Orestes,[68] yet it was open to Aeschylus[69] to represent him

as acquitted by Athenian citizens! It is important, however, in view of

our subsequent analysis of the Oresteian legend in Attic tragedy, to

note that according to at least one form of the legend, it was on a plea

of justifiable matricide that Orestes was tried and acquitted. Though

Plato[70] says that in no circumstances was it lawful to kill one’s

parent, yet Plato would admit, we have no doubt, that the command of

Apollo constituted an extenuation if not a justification for such a deed,

in the days of private vengeance. But the connexion of Orestes with two

different courts suggests a variation in the legends of Orestes, for it

is unlikely that the same legend would have represented him as having

been prosecuted before both courts on the same charge.

(4) _The Prytaneum_[71]: ‘If a stone or a piece of wood or iron or

anything of the kind falls and strikes a person, and we are ignorant who

threw it but know and have in our possession the instrument of death,

proceedings are taken against such instruments here.’ Demosthenes does

not mention animals, but Aristotle supplies this deficiency.[72] It is

strange to speak of an object ‘falling and striking’ and at the same time

to assume that somebody threw it. We have already suggested[73] that

even if the thrower was known, proceedings could still be taken against

the object if the thrower could swear that he did not intend to kill

any person. Is it not probable that the weapon by which a person was

accidentally slain in war or at gymnastic exercises, or the weapon by

which a person was deliberately but justifiably slain, according to the

Draconian law, would, after the slayer’s acquittal at the Delphinium, be

tried and found guilty here?

(5) _At Phreatto_[74]: ‘There is yet a fifth court ... that in Phreatto.

Here, men of Athens, the law requires a person to be tried if one is

in exile on account of involuntary homicide and if, before those who

procured his banishment have accepted “appeasement” from him, he incurs

another charge, this time, of wilful murder. The framer of these laws

did not overlook the criminal’s case because it was impossible for him

to come to Athens, nor did he take the charge against him for granted

because he had done some such act before. He devised a means by which

religion was not outraged and the criminal was not deprived of a hearing

and a trial.... He brought the judges to a spot to which the criminal

might come, appointing a certain place in Attica by the sea. The accused

sails up in a ship and pleads without touching the land: the judges hear

him and give their verdict on the shore: if found guilty, he suffers

the penalty of wilful murder, quite justly: if acquitted, he escapes

that penalty but continues to serve the exile decreed for his previous

manslaughter.’ The influence of the pollution doctrine in the origin of

this court is quite manifest. The contingency which is thus provided

for was, no doubt, very rare, but it was not nevertheless ignored. The

‘framer of the laws’ here referred to is, of course, Dracon, but we

think that the court may have existed for some years before his time.

The seventh century is, however, the most probable date of its origin.

In view of the facts narrated in this quotation it is difficult to

understand how scholars can believe that ‘private settlement’ was legal

even for manslaughter.[75] The theoretical power of the relatives of

the slain to resist ‘appeasement’ as long as they wished is here most

clearly indicated.[76] The procedure here described might, we think,

apply to homicide which at first was adjudged involuntary but which came,

in the light of later evidence, to be considered voluntary. The penalty

of wilful murder here referred to is perpetual exile and confiscation

of property. In the event of the slayer choosing to land, he could be

arrested and delivered to the ‘Eleven’ for execution; hence it is clear

that the verdict of this court involved, _en rupture de ban_, the penalty

of death. Plato was probably thinking of this court when he decrees[77]

that a murder exile who is cast by a storm upon the coast of forbidden

territory may put up a tent in the water and must keep his feet in the

water till he finds an opportunity for resuming his voyage!

In a continuation of this same passage Demosthenes[78] refers to a sixth

legal process, involving, so to speak, a possible sixth homicide-court,

which we have already[79] identified with the Prison court of ‘the

Eleven,’ a special Heliastic court of summary jurisdiction. Demosthenes

says: ‘If a man is ignorant of all the other legal courses, or if the

time within which they must be followed has gone by, or if for any

reason whatever he does not choose to adopt those (other) methods of

prosecution, and sees the homicide walking about in the temples or in the

market-place, it is lawful for him to “arrest” and bring the murderer to

prison ... and when he is brought to prison, he will suffer no punishment

till he is tried, but if he is found guilty, he will be punished with

death: if however the person who arrested him does not get a fifth part

of the votes, he will pay a fine of 1000 drachmae.’ Aristotle[80] says

of the Eleven Gaol commissioners: ‘Their duties are to have charge of

prisoners, to put to death all thieves, kidnappers and highway robbers

if they confess their guilt, to bring them before the Heliasts if they

plead not guilty, to discharge them if acquitted, to put them to death if

convicted.’ Demosthenes clearly does not refer to a convicted murderer

_en rupture de ban_. Glotz[81] is right in rejecting this possible

interpretation of the passage. By a law of Dracon[82] a convicted

murderer _en rupture de ban_ could be put to death by the first person

who met him or taken to the ‘Eleven’ for execution, without further

trial. But Demosthenes suggests that the ‘Eleven’ could try a murderer

and condemn him to death! Pollux[83] assures us that ‘the Eleven’ sat as

a Heliastic court. But could they try cases of homicide? Was prosecution

open to any citizen? Was there at Athens a γραφὴ φόνου?

THE QUESTION OF A ΓΡΑΦῊ ΦΌΝΟΥ

Glotz answers the question in the negative. But Pollux says[84]

that there was a γραφὴ or public indictment for wilful murder, for

malicious wounding, for arson, and for poisoning, as well as for

adultery, sacrilege and impiety. The Heliasts were the normal judges

for indictments (γραφαί), though Philippi[85] thinks that indictments

could be also brought before the Areopagus. Was it then possible for

any citizen to indict a murderer before the Heliasts in the time of

Demosthenes? If so, what becomes of the law of Dracon which prescribed

prosecution by the relatives? Glotz says[86]: ‘Si Solon avait imaginé

une γραφὴ de ce genre, il eût par là-même ruiné la loi de Dracon sur un

point essentiel.’ Caillemer finds it difficult to solve the question. He

says[87]: ‘La question est malaisée à résoudre et très controversée parce

que les textes sont contradictoires ou obscurs ... l’institution par

Solon d’une véritable φόνου γραφή, la concession à tous les citoyens du

droit d’intenter une action d’homicide, pouvait-elle se concilier avec le

principe même de la loi de Dracon? Lorsque les plus proches des parents

du défunt étaient d’accord pour pardonner ou pour transiger, les parents

plus éloignés n’avaient pas le droit de poursuivre le meurtrier devant

les tribunaux.’ He concludes, however: ‘en fait, dans beaucoup de cas, on

pouvait arriver à la répression du meurtre par d’autres voies. Certains

homicides donnaient certainement ouverture à l’εἰσαγγελία et cette

procédure permettait d’atteindre un coupable que la loi de Dracon aurait

laissé impuni.’

We have seen[88] that Socrates objected to Euthyphro’s prosecution of his

father on the ground that he was not a relative of the slain man. Yet

Euthyphro began his prosecution nevertheless! He calls his charge a δίκη,

not a γραφὴ.[89] He is consulting the King Archon at the Prytaneum. We

have quoted from Demosthenes[90] a law mentioned by the Exegetae, to the

effect that it was not permitted to anyone save a relative of the victim,

or a master, if the victim was a slave, to prosecute for homicide. Yet

the Exegetae advised the plaintiff on independent grounds. ‘As you were

not present yourself, but only your wife and children, and you have no

other witnesses, we recommend you not to make proclamation of anyone by

name, but only in general against the guilty parties, and further not to

begin proceedings before the Archon Basileus.... Our advice is that you

perform the necessary religious ceremonies for yourself and your house,

bear the misfortune as patiently as you can, and take vengeance if you

like in some other way.’ The religious ceremonies mentioned in this

passage were probably an expiation-offering to the ghost of the nurse who

had been slain. If so, then the Erinnys of the dead, at least, accepted

the Draconian law! Is it possible—it cannot of course be certain—that

the ‘other way’ of avenging was by a γραφὴ? If this indictment could not

be brought till a number of years had passed, is this the reason that the

misfortune had to be borne with patience?

We have referred to a Demosthenic passage[91] in which an unsuccessful

γραφὴ ἀσεβείας was brought against the uncle of a man who was alleged to

be guilty of parricide. If the charge succeeded, the alleged parricide,

Diodorus, assures us that he would have been put to death and that his

property would have been confiscated. But there is no reference to a

specific trial for parricide. Did the γραφὴ ἀσεβείας involve, indirectly,

a γραφὴ φόνου?

We believe that there was not, at Athens, a γραφὴ φόνου, that is, a

direct indictment of a murderer by any citizen who wished to charge him.

The suit which Euthyphro brought against his father was a δίκη, which

was a quasi-civil or quasi-private process, and in any case the Archon

Basileus would, we feel sure, have refused to accept it. But we think

that an indictment for impiety, which could be brought by any citizen

against a relative of a slain man who had failed to ‘proclaim’ and to

prosecute the slayer, involved, if successful, a verdict of murder

against the slayer; and that it was the possibility of such indictments

which led Pollux to use the expression γραφαὶ φόνου. Thus if an

indictment for impiety had been brought against a relative of the nurse

whose violent death is referred to in the speech of Demosthenes _against

Euergus_, it would have involved a verdict of murder or of manslaughter

against Euergus and Theophemus. This is probably the ‘other way’ which

was referred to in the speech by the Exegetae.

How then do we explain the Demosthenic passage[92] with which we began

our present inquiry? The essential points in this passage are, we think,

the reference to the murderer as actually ‘walking about in the temples

or in the market-place,’ and the implication that he was ‘proclaimed’ but

untried and unconvicted. Assuming that the relatives of the slain had

proclaimed the slayer but had not proceeded with the prosecution, we can

understand why the normal procedure of homicide-prosecution could not

have been applied. For the relatives of the slain alone had the right of

direct prosecution. But if the murderer had been proclaimed, but was,

for some reason, untried and unconvicted, he could, if he frequented

the temples or public places, have been proceeded against directly by a

γραφὴ ἀσεβείας—an indictment for impiety. For the validity of such an

indictment it was necessary that he should have been formally proclaimed

as a slayer by the relatives of the slain: for, otherwise, he could

not be regarded as publicly ‘polluted.’ But if we assume that he was

proclaimed, and that afterwards—either because of lack of evidence, or

because the proper time had passed by, or simply because the relatives

of the slain were indifferent (we may suppose that they were bribed

by a ‘private settlement’)—he proceeded to act as if he had not been

proclaimed, then it was open to any citizen to indict the proclaimed

homicide for impiety, but only if he was found in the temples or the

market-place. The result of a successful indictment of this kind would

have been more severe than that of a successful murder-charge: for

though the slayer could have saved his property, he would not have been

permitted to go into perpetual banishment, but he would have been put to

death.

It is therefore, we think, a γραφὴ ἀσεβείας to which Demosthenes in

this passage refers. Such an indictment would have been in practice but

not in theory an indictment for murder. In theory it was an indictment

for impiety or sacrilege. To win the indictment it was not necessary

that the plaintiff should prove that the defendant was a murderer. For

a proclaimed murderer had to prove his innocence. Hence, normally, a

proclaimed murderer would either have challenged a verdict immediately

after accusation, or he would have fled into exile. Thus, once more,

we observe that ‘private settlement’ was not only illegal but was

dangerously so. If the slayer settled with the relatives of the slain,

they could have been indicted; and if he frequented the temples or the

market-place, he himself could have been indicted for impiety. But if he

was not proclaimed by the relatives of the slain, they alone could have

been indicted for impiety: yet an adverse verdict would have involved his

condemnation. Such is our solution of this difficult problem.

Whether this indictment against a proclaimed murderer who had been

found in a temple or a public place was brought before ‘the Eleven’

for final judgment, or whether it was referred by them, if the accused

denied the charge, to the ordinary Heliastic courts, is a question

which we cannot decide. Pollux[93] includes ‘the Eleven’ amongst the

Heliastic judges, but Aristotle[94] implies that they could only judge

when the accused pleaded guilty. If it sounds strange to say that gaol

commissioners might have heard such indictments, it is, we think, not

quite so strange as the fact indicated by Philippi,[95] that indictments

for impiety were in certain cases heard by judges who had no other

judicial qualification save the fact that they had been initiated at the

mysteries of Eleusis! The passage in Andocides,[96] on which Philippi’s

statement is based, certainly suggests that there were at Athens special

religious or ecclesiastical courts for the trial of offences connected

with ritualistic procedure, such as profane conduct or the divulging of

religious secrets. The court which is described by Andocides consisted

of initiated citizens, and the accusation was concerned with an offence

in regard to the Mysteries. Were these citizen courts a democratic

development of the Eumolpid Exegetae courts which are referred to

by Lysias?[97] Very probably they were, just as the Heliasts were a

democratic development of the Ephetae courts. In both cases, however, we

must assume that the development did not involve the destruction of the

older system of judicature, but merely reformed it by providing an option

in the personnel, while retaining the traditional procedure of the court.

ORIGIN AND EVOLUTION OF ATTIC HOMICIDE COURTS

Having now set forth the most important features of the

homicide-judicature of Athens in the fourth century B.C., it remains

to inquire what inferences may be drawn from these features as to the

origin and the evolution of these courts. Our views as to the general

origin of the Attic courts have already been indicated.[98] The theory

of Gilbert and of Köhler that these courts originated in the right of

sanctuary we have rejected as improbable.[99] The court at Phreatto had

no connexion with a temple. Neither had the Prytaneum. The temple of

Athene Areia on the Areopagus may not have existed when the hill first

became famed for its legal judgments. The Palladium and the Delphinium

were both temple courts, and during the Dark Ages (900-750 B.C.) the

right of sanctuary may have given to these places their first connexion

with homicide-investigation. This is, however, an accidental matter. The

real cause of the birth of the Attic murder courts was the concurrence of

the doctrine of homicide-pollution with the political synoekism of States

in the eighth and seventh centuries B.C. Some Attic courts may have

functioned in an arbitrary manner for local offences in earlier times,

but their historical rôle began, and some of them, like Phreatto, were

born, in the seventh century B.C.

DRACON AND THE EPHETAE

Was it then Dracon who established the Ephetae courts as Solon

established the Heliastic courts? Gilbert[100] finds it difficult to

decide this question. ‘Whether Dracon himself,’ he says, ‘introduced or

merely codified, in accordance with customs already existing, the system

by which murder cases were tried at Athens and which, even measured by

the standard of to-day, is tolerably complete, can as little be decided

with certainty as can the question whether he was the founder of the five

different courts at which in later times the trial was held according to

the nature of the case.’ Yet, a few lines previously[101] Gilbert decides

the latter question in the affirmative. ‘Dracon,’ he says, ‘transferred

the judicial powers which the Areopagus had previously possessed to two

new bodies which he created, the Ephetae and the Prytaneis.’

This question, for many scholars, has turned on the interpretation of a

passage in Pollux,[102] who wrote eight hundred years after the event.

Pollux says of the Ephetae that they were fifty-one in number and that

‘Dracon established them, chosen on grounds of birth. They were the

judges of those accused of bloodshed in the five courts. It was Solon

who established in addition the council of the Areopagus.’

Philippi was the first to question the value of this evidence. As the

phrase ‘chosen on grounds of birth’ occurs in a law of Dracon which

mentioned the Ephetae, Philippi[103] thinks that Pollux is arguing

from a false interpretation of that law, suggested by a false reading

τούτοις for τούτους in the law as quoted by Demosthenes.[104] As the

verb αἱρείσθων may have a ‘middle’ or a ‘passive’ meaning, the sentence

τούτοις δ’ οἱ πεντήκοντα καὶ εἶς ἀριστίνδην αἱρείσθων may be translated

‘for these (_i.e._ the phrateres) let the fifty-one be chosen according

to birth’: instead of: ‘these phrateres (τούτους) let the fifty-one

choose according to birth.’ But the Demosthenic citation of the law

contains a reference two lines earlier to an existing body of fifty-one

judges of the plea of involuntary homicide, and, therefore, the reading

τούτοις is obviously false.

Gilbert says[105] that this supposition of Philippi is ‘possible but

not necessary.’ But it seems obvious from the law as cited that the

supposition is fanciful and impossible. Yet we hold that Pollux was

in error in asserting that Dracon instituted the Ephetae. The reason

for the error has been correctly indicated by Müller.[106] ‘This

title (Ephetae),’ he says, ‘occurred so frequently in Dracon’s laws

that it gave rise to the opinion which we find in Pollux that Dracon

instituted the college of the Ephetae.’ We may add that in the laws of

Dracon there is no suggestion of the creation of homicide-judges or of

homicide-courts. Their existence is presumed, just as clearly as the

distinction between grades of homicide-guilt and the details of the

various penalties are presumed. Dracon, in our view, merely codified

existing laws in relation to homicide, and allotted the trials of the

different kinds of homicide to the tribe-kings, on the one hand, and to

the fifty-one Ephetae, on the other. This conclusion will be confirmed by

a consideration of the meaning of the word Ephetae.

Müller[107] rightly points out that the ending της normally has an active

signification. The word ἐφέτης (we will assume for the moment that the

plural form ἐφέται had a corresponding singular form) should not, says

Müller, denote ‘a person appealed to,’ but rather a person who permits

an avenger to punish. Müller thus connects the word with the verb

ἐφίημι, ‘I permit,’ rather than with the term ἔφεσις, meaning ‘appeal.’

Schömann[108] and Gilbert[109] also connect the word with ἐφίημι, but

interpret the verb as an archaic form, which means ‘I direct’ persons

as to the manner in which the accused should be punished or proceeded

against. The Ephetae, according to this view, are ‘the directors’ or the

determining arbiters of prosecution or vengeance. Philippi[110] points

out that this opinion gives to the term too wide and general a meaning.

We agree with this criticism. Any judge or group of judges could have

been called ‘Ephetae,’ according to this view. Why, then, we may ask, did

not Dracon call these judges by the ordinary title of homicide judges,

namely, dicasts (δικασταί)? Such was the usual title of the democratic

Heliastic judges.

Lange, who at a later period came to favour the Schömann-Gilbert view,

originally proposed[111] that the term Ephetae was an abbreviated clause,

that the words οἱ ἐφέται are derived from the phrase οἱ ἐπὶ τοῖς ἔταις

ὄντες, _i.e._ ‘those who presided over the citizens of full right’—the

foremen or heads of the old aristocracy of tribal Attica. Philippi[112]

favours the original theory of Lange, which is, he says, ‘so excellent

from a linguistic point of view that I am entirely satisfied.’ Philippi

points out that, according to this view, the Ephetae are the Athenian

counterpart of the Spartan Gerousia and that therefore we can understand

their selection on grounds of birth. Glotz[113] also adopts this

interpretation. He speaks of ‘les éphètes ou chefs d’ἔται.’ Now, the

Homeric word ἔται may mean either cousins or comrades. It was a word

which could denote, in Pelasgian life, members of the same clan or of the

same phratry. The chiefs of the phratries were therefore nobles, closely

connected with the kings of the tribes. It is therefore significant that

the only homicide judges who are mentioned in the Draconian inscription

of 409-8 are the kings and the Ephetae.

Pollux[114] assures us that, in the time of Dracon, the Ephetae sat

in all the five great homicide courts. They therefore sat on the

Areopagus at that time, and also in the Prytaneum. In the time of

Aristotle[115] the judges at the Prytaneum court were the Tribe-Kings

and the King-Archon. The Ephetae continued to sit at the Delphinium,

the Palladium, and the Phreatto courts.[116] These facts suggest,

_prima facie_, a survival in the democratic era of the judicial power

of the old nobility of birth. Pollux[117] states that the Tribe-Kings

were Eupatridae, which implies that they were members of the old Attic

nobility. The Ephetae, he says,[118] were chosen on grounds of birth:

a fact which proves, as Gilbert points out,[119] that they also were

Eupatridae. Aristotle[120] says that, before Dracon, the highest

magistrates were elected from the ranks of the aristocrats and the

oligarchs; and that these magistrates were the final judges of the

suits that came before them, not, as in his own time, the preliminary

investigators.

Is it not obvious therefore that we must interpret the evolution of

Attic homicide courts as a gradual encroachment on the part of the new

plutocracy and the new democracy upon the domain which at one time

was administered exclusively by the sacerdotal aristocracy of birth?

According to this view, the Ephetae and the Tribe-Kings, who once sat in

all the great Attic courts and who were never suppressed, though they

certainly were submerged, in the classical period of Greek history, were

the lineal descendants of the tribal Elders of Pelasgian days whom Homer

describes[121] as ‘sitting on smooth stones in a sacred circle, with

sceptres in their hands.’ According to this hypothesis Dracon did not

create the Athenian Ephetae. He did not even establish them in the rôle

of homicide judges, for such they had been from time immemorial, in the

local judicature of tribal society; and such they must also have been,

in the centralised civic judicature, which before Dracon, though perhaps

not long before him, had evolved under the twofold influence of political

synoekism and the religious doctrine of homicide as a ‘pollution.’

THE EXEGETAE AND THE NUMBER FIFTY-ONE

We have frequently[122] referred to the Ephetae in connection with the

Exegetae or Interpreters, and we have described both these groups as a

sacerdotal nobility. We must now attempt to explain this connection,

and, incidentally, discuss the origin of the curiously constant number

‘fifty-one,’ which is usually associated with the Ephetae. According to

Suidas,[123] the Exegetae or Interpreters were appointed or controlled by

the oracle at Delphi and they were three in number. Pollux[124] defines

the Exegetae as ‘those who gave information regarding omens and other

sacred matters.’ But the Tribe-Kings, as Pollux states,[125] were also

concerned with ‘sacred matters’: and so, therefore, probably, were the

Ephetae. Now Demosthenes does not mention the number three in connexion

with the Exegetae. Neither does Plato. Plutarch[126] states that the

Eupatridae of Athens were the Exegetae of sacred law. This statement

implies that the Exegetae were a widespread caste rather than a group

of three individuals. Similarly Lysias[127] refers to the Eumolpidae of

Eleusis as the Exegetae of unwritten customs.

Taking it for granted that the Athenian Interpreters were three in

number, Gilbert[128] and Schömann explain the number fifty-one, which

is applied by Dracon to the Ephetae, as composed of forty-eight Ephetae

(elected by the four Ionian tribes of Attica, twelve from each tribe) and

of three Exegetae. According to this view, there was in Dracon’s time

no distinction between the Exegetae as Interpreters and the Exegetae as

homicide-judges. Müller,[129] however, thinks that the three Exegetae

were not judges, but only purifiers; and he explains the number fifty-one

as a Cleisthenic or post-Cleisthenic figure, made up of, say, five

members from each of the ten Cleisthenic tribes, and one additional

judge, who was presumably the King-Archon.[130] But, we may point

out, the number fifty-one occurs in the actual (unrestored) Draconian

inscription[131] of the year 409-8 B.C.: and it is improbable that any

changes were made in the law in the time of Cleisthenes.

Plato says[132] that the Interpreters, in his ideal State, should be

elected annually _one_ from each tribe. It is therefore better, we think,

to abandon the hypothesis that the Exegetae were at all times three in

number. Suidas is a very late authority for this number, and he may be

referring merely to the chief members of a group. But how, then, do we

explain the fact that the number of the Ephetae was invariably fifty-one?

It is, we think, very possible to suppose that in early times the three

most important ‘archons’ were Ephetae, who acted in conjunction with the

other Ephetae, who were therefore forty-eight in number, and that the

number forty-eight was made up of the four Tribe-Kings and of forty-four

nobles elected by the four Ionian Attic tribes, eleven from each tribe.

Aristotle[133] assures us that the three ‘archons’ in the seventh century

were nobles and that they were ‘final judges,’ not mere investigators.

It is not necessary to assume that in later times the Ephetae always

sat together as a body of fifty-one judges. Sometimes they may have

adjudicated as a single group, but more frequently they were divided into

sections which sat in different courts. The presence of the King Archon

and the Tribe-Kings at the Prytaneum[134] suggests perhaps a previous

condition of things in which these officials sat with the entire Ephetae

body in the more important homicide courts.

We prefer therefore to suppose that the Ephetae and the Exegetae were

for a long time[135] identical. They were both members of a sacerdotal

nobility of birth which preserved the oral traditions of tribal law,

and expounded these traditions. As these nobles normally supervised the

ritual of public sacrifices, they naturally also, after the advent of

the pollution doctrine, acquired control of the ceremonial of homicide

purgation. Thus, Müller says[136]: ‘The purification of the bloodshedder

came under the sacred law of Athens which remained in the hands of the

old nobility even after they had lost their political authority.’ The

number _three_ applied, apparently, in Müller’s view,[137] to the three

chief purifiers or supervisors of the rite of purgation, though Müller

is not quite explicit on this matter. But we cannot suppose that this

figure limited the number of purifiers at any time.

SOLON AND THE AREOPAGUS

In regard to the question of the Solonian origin of the Areopagus,

Gilbert, arguing from Aristotle’s account, holds[138] that the Council

of the Areopagus was in existence even before Dracon’s time. ‘The great

powers,’ he says, ‘which the Council of the Areopagus possessed in the

government before Dracon were considerably curtailed by him ... for

whereas the Areopagus before Dracon ... exercised judicial functions

... so long as Dracon’s constitution lasted, that council was merely

the guardian of the laws and superintended the magistrates. Dracon

transferred the judicial powers which the Areopagus previously possessed

to the Ephetae and the Prytaneis.’ This account exceeds, we think,

the limits of legitimate inference from the text of Aristotle.[139]

We cannot even be sure that the text of Aristotle is trustworthy. The

Athenians did not possess any accurate evidence in regard to their

early institutions. Müller[140] rejects the view (which is also held by

Schömann)[141] that Dracon interfered with the judicial functions of the

Areopagus. Pollux[142] states definitely that Solon added the Council of

the Areopagus to the already existing Ephetae courts. Gilbert regards

this statement as a confirmation of his theory that Dracon created the

jurisdiction of the Ephetae. We think it is rather a refutation of it.

Plutarch apparently did not believe that an Areopagus court, as distinct

from the Ephetae, existed before Solon’s time: for he thinks[143] that

a so-called law of Solon which referred to persons ‘condemned by the

Areopagus, by the Ephetae, or, in the Prytaneum by the Kings,’ should

have read ‘those condemned for such offences as (now) belong to the

Areopagites.’

We believe that there was a Council of State which was also a State

court, connected with the Hill of Ares (or Areopagus), in Dracon’s time

and even before it—but that it was not then distinguished from the

Ephetae who, like the Spartan Gerousia, were the supreme Council of the

State. When Pollux says that Solon added the council of the Areopagus to

the Ephetae, he is not quite accurate. What he should have said—perhaps

what he meant to say—was that Solon established a new Areopagus as

distinct from what we may call the older Ephetae-Areopagus, and that he

gave to this new body judicial and administrative functions. The error of

Gilbert (and of Aristotle) lies in their failure to distinguish between

the personnel of the old Council and that of the new Council. The old

Council was composed exclusively of the old nobility, that is to say, of

the Ephetae. It was a select group, within the Ephetae caste, a group,

for instance, of nobles who had held executive power. The new Council

which Solon created was composed of ex-‘archons’ or ex-magistrates, but

the basis on which these ‘archons’ were chosen was essentially different

from that on which the Ephetae were chosen. For wealth, not birth, was

the qualification which was necessary for the office.

The motive which induced Solon to establish this new Areopagus Council

was probably his desire to set up a plutocratic body, surrounded

by a halo of sanctity derived from the traditions of the older

Ephetae-Areopagus, which would act as a check on the increasing power

of a more democratic Council, which Aristotle also mentions, namely

the Draconian Senate of 400 (or 401) which was appointed, by lot, from

the ranks of all ‘citizens.’[144] It was, we think, this democratic

council, or Senate, which threatened most seriously the power of the

aristocracy. The wide powers of supervision which the Ephetae-Areopagus

possessed were, of course, a valuable possession, but, with the growth

of the Senate, the legislative and executive powers, and perhaps even

the judicial powers, of the old Council of Noble Elders were endangered.

Hence Solon, who was neither a democrat nor an aristocrat, but who was,

as we conceive him, a plutocrat, instituted a new plutocratic Areopagus

at the expense of the Ephetae on the one hand and of the Draconian

Senate on the other. Though he allowed an appellant jurisdiction to the

popular Heliastic jurors,[145] the normal homicide jurisdiction remained

attached to the court of the Areopagus even though its personnel was now

changed, just as in later times it continued attached to the ‘Ephetae’

courts when the Heliasts acquired the privilege of sitting there. The

explanation of this strange fact is to be found in the religious doctrine

of homicide as a ‘pollution.’ In these five courts alone—the fact that

one of them was now a Council does not matter—were homicide trials held

at night, in the open air, solemn oaths and imprecations were sworn, and

the King-Archon sat without his crown. Solon, then, did not create the

court of the Areopagus: he merely changed the personnel of the court. The

Ephetae, that is, the nobles, were no longer the judges in that court.

According to the literal interpretation of Pollux, we might conclude that

there existed in Solon’s time _six_ Athenian homicide courts. But Pollux

must have been well aware that the Ephetae (including the Tribe Kings)

from Solon’s time onwards functioned only at the four minor courts, which

were known as the Delphinium, the Palladium, the Prytaneum, and the court

at Phreatto.

Why then, we may ask, did Solon select the Areopagus as the court in

which the Ephetae were compelled to give place to plutocratic ex-archons,

and why was the jurisdiction of that court, now perhaps for the

first time, limited to cases of homicide ‘with malice aforethought’?

Müller[146] offers a solution of this problem. ‘The administration,’

he says, ‘of the rites of expiation could not be taken away from the

old aristocracy of Athens even when the constitution underwent in

other respects a complete change. None but an aristocratic court was

competent to pronounce an act of homicide expiable, and itself to preside

over the rites of expiation and cleansing. Accordingly, the cases

reserved for the decision of that court were those in which a person

was accused of unpremeditated slaying—for here expiation came in after

the exile; further, where the plea put in by the accused was that of

justifiable homicide—in this case there was no punishment ... but still

it was necessary, at least in certain cases, that he should undergo

purification: further, in case an unpremeditated was followed by a

premeditated act of homicide, it being then a question whether expiation

was admissible or not: lastly, the formalities observed in trials of the

weapon by which blood was shed ... necessarily devolved upon the managers

of the ancient rites of expiation. As wilful murder, on the contrary,

could not be expiated ... there was no need in this case to refer to

expositors of ancient Sacred Law. So that Solon was at liberty here to

vest the cognisance of such cases in a corporate body which ... he formed

out of the most affluent Athenian citizens who had filled the offices of

archon.’

This hypothesis is very ingenious. We have little doubt that there is a

large substratum of correctness in its underlying principle—namely the

association of the old nobility with ‘purgation’ rites. But surely the

court of Phreatto was not based on the probability that purgation would

have followed the trial. Again, the Palladium frequently tried cases of

wilful murder between metics and between foreigners. These murderers

could never have been purged at Athens, since the deed was committed

there. Moreover, all these Ephetae courts, except the Prytaneum, could,

in all probability, have brought in a verdict of wilful murder, just

as the Areopagus could have acquitted the defendant and admitted him

therefore to some kind of ‘purgation’ at the shrine of the Semnai

Theai. Furthermore, Müller is not quite consistent with himself in

associating purgation exclusively with judges as in this quotation, and

in maintaining elsewhere[147] that the three Exegetae who supervised

those rites were not judges[148] at all. By his own reasoning, therefore,

he would be compelled to admit that the Exegetae could have cleansed the

accused after acquittal in any court. Again, he holds[149] that in early

Attica there was no discrimination between murder and manslaughter, and

that the same courts originally tried all these different pleas; but yet

he maintains that a certain distribution of functions which was based on

this discrimination had already taken place in the time of Solon.

We believe that a discrimination between different degrees of homicide

guilt was recognised in early tribal Attica, and that in the seventh

century B.C., when a compromise took place between what we may call

Apollinism and tribalism, the Apolline religion was compelled by tribal

aristocracy to define the kinds of homicide to which purgation could be

applied. Moreover, the detailed formulae and ritual of purgation were

confided as a secret and sacred trust to this aristocracy. But even

within an exclusive nobility there must eventually arise a division

of labour. The same nobles who judged a suit might also be appealed

to for purgation, and hence they probably found it more convenient

to delegate the latter duty to one particular family or clan. Most

especially would the Ephetae of the Areopagus, who in those days held in

their hands the reins of civic government, have found it difficult to

discharge at once the various duties of a Council of State, of homicide

judges, and of purgation priests. Hence, therefore, we may assume that

the Ephetae-Areopagus limited its activities as a homicide-court and

confined itself to charges of wilful murder, of plots to kill, and

perhaps also of arson, between the citizens (who were, originally, the

nobles), not merely because of the necessity for a division of labour,

but also because the Areopagus court was the supreme Council of the

State. To the other courts, therefore, fell the duty of trying minor

homicide cases, and such cases as were more likely to require purgation.

Thus, wilful murder between foreigners was comparatively a minor issue,

and was no longer tried by the Areopagus. Such cases were relegated

to the Palladium court, perhaps because it lay outside the city.[150]

Again, charges of murder which were brought against a person already

convicted of manslaughter were naturally tried at Phreatto, as such a

slayer was not permitted to land in Attica. It was in some such way as

this, we think, that a traditional custom had grown up in regard to the

distribution of homicide pleas among different courts in the time of

Dracon and of Solon. Solon made the Areopagus the basis for a reform

which was directed against the old nobility, partly because it was

feasible to introduce innovations into this court with the least possible

interference with existing religious traditions, but even more so because

the Ephetae-Areopagus was the keystone of the fabric of aristocratic

power. Here, despite the advancing influence of the Senate of Four

Hundred with its increasing executive and administrative powers, the old

nobility retained the strongest outpost of authority in a court which,

amidst other privileges, possessed the right of final decision in matters

of life and death. This right of final decision was not a privilege of

the new Solonian Areopagus—it was transferred to the popular Heliastic

courts. The innovations of Pericles and Ephialtes in 460 B.C. reduced

the Areopagus almost to the level of a simple homicide court[151]: yet

its personnel, which was composed of ex-archons, enabled it as a judicial

body to command general respect. But it was, nevertheless, the traditions

and the religious procedure of the court which lifted it above the level

of the Crush and the Triangle. This theory, which we have propounded, of

the origin and evolution of the Areopagus is in perfect harmony with the

statement of Demosthenes[152] that: ‘neither tyranny nor oligarchy nor

democracy have ventured to deprive this tribunal of its jurisdiction in

murder.’ But Gilbert’s theory[153] of Draconian interference with the

judicial powers of the Areopagus is not consistent with this statement.

The opinion of Pollux[154] and of Plutarch[155] that there was no

Areopagus court before the time of Solon contains at least an important

element of truth, since it may be taken to imply that the Areopagus of

historical times, the personnel of which was composed of ex-archons, did

not exist before the time of Solon. The pre-Solonian Areopagus was not in

our opinion really distinguishable from the Ephetae. Hence, there is a

sense in which the statement of Pollux is true, that in Solon’s time ‘the

Ephetae sat in the five murder courts.’[156]

We have now sufficiently indicated the methods and laws of Greek

blood-vengeance in the post-Homeric epoch and in historical times. We

may, therefore, proceed to examine and, if possible, to explain the

problems of blood-vengeance which are presented by Attic tragedy. In

our account of Homeric homicide we found it necessary to distinguish

between a military dominant Achaean caste on the one hand, and a subject

Pelasgian tribal people on the other. In our exposition of post-Homeric

and historical developments we found it indispensable to distinguish

the post-Achaean and Hesiodic periods from the ‘pollution’ era and to

regard the final evolution of historical Greek murder law as a resultant

compromise between divergent forces. When we turn to the legends which

are given by the Attic tragedians, we must be prepared to consider the

operation of several distinct alternative factors in the creation of

these legends. Some legends are presented to us in a form which seems

quite consistent with the period to which they refer, either because

they came down comparatively unadulterated through the ages or because

the dramatist consciously and correctly archaised. Other legends,

however, become so adulterated in course of time that they are difficult

to analyse and their evidential value is very small. Again, different

myths about the same event assumed, in different places and at various

times, forms which were legally, at least, incompatible. It was open

to the dramatists to make a selection from amongst the most suitable

varieties of the legend; but they naturally aimed at consistency in

characterisation, rather than at harmony in their legal conceptions. As a

result of the variety of inconsistent legends it was obviously impossible

for those dramatists to fulfil the maxim of Horace[157]:

denique sit quidvis, simplex dumtaxat et unum.

FOOTNOTES

[1] See _supra_, p. 80 ff.

[2] _Supra_, p. 81.

[3] _Supra_, pp. 93, 144.

[4] _Eum._ 688.

[5] _Op. cit._ pp. 282-3; but see Leaf, _Il._ xiv. 485 n.

[6] i. 28.

[7] _Eum._ 420.

[8] _Supra_, pp. 72, 185 f.

[9] _In Aristoc._ 641, 25.

[10] _Eum._ 685.

[11] _Ib._ 688.

[12] _Iph. Taur._ 960, 1420; _Electra_, 1260.

[13] i. 28. Pollux, viii. 119, makes Aegeus the founder.

[14] Pausanias, i. 22, 28.

[15] _Il._ ix. 632.

[16] _In Aristoc._ 644, 20.

[17] _See_ Müller, _Eum._ p. 141.

[18] viii. 119.

[19] i. 28.

[20] _Supra_, p. 215.

[21] See _infra_, p. 254.

[22] i. 24.

[23] i. 28.

[24] Glotz, _op. cit._ pp. 178-9; see also Herodotus, i. 132, 140, ii.

41-42, 54.

[25] _Supra_, p. 108.

[26] _Infra_, pp. 250, 256 f.

[27] Paus. i. 28; see Soph. _Ajax_, 1020.

[28] See Müller, _Eum._ p. 134, and Sandys’ note, Aristotle, _Ath. Pol._

p. 228.

[29] viii. 117-120.

[30] _In Aristoc._ 627, 20.

[31] _Loc. cit._

[32] i. 28.

[33] _Infra_, p. 250.

[34] viii. 121-122.

[35] i. 28; see also Aristotle, _Ath. Pol._ 63.

[36] _Ath. Pol._ 52.

[37] _In Aristoc._ 647; _infra_, p. 257 ff.

[38] Aristotle, _loc. cit._

[39] _Op. cit._ p. 14 ff.

[40] _De Herodis Caede_, 130, 139.

[41] _Ath. Pol._ 57.

[42] Poste’s translation ‘homicide by wounding’ is obviously incorrect.

[43] See also Pollux, vii. 90.

[44] _Supra_, p. 225.

[45] _Op. cit._ pp. 443, 612 ff.

[46] _C. Conon._ 1264, 20.

[47] _Supra_, p. 248.

[48] Arist. _Ath. Pol._ 25, 27.

[49] _Op. cit._ 26.

[50] _Op. cit._ 63.

[51] See Poste’s translation of _Ath. Pol._ p. 114.

[52] viii. 125.

[53] Pollux, viii. 90.

[54] _In Aristoc._ 641, 18-642.

[55] _Supra_, p. 244.

[56] _De Herodis Caede_, 130, 139.

[57] _C. Theomnest._ 117, 11.

[58] viii. 117.

[59] See Paus. i. 28 (trans. Shilleto).

[60] _De Her. Caede_, 130, 139.

[61] Dem. _op. cit._ 643, 20.

[62] _Infra_, p. 273.

[63] Pausanias, i. 28.

[64] Dem. _op. cit._ 644, 15.

[65] _Supra_, pp. 195, 215 f.

[66] _Op. cit._ p. 616 ff.

[67] Demosth. _in Aristoc._ 644, 20.

[68] Demosthenes, _loc. cit._ See also Eurip. _Orestes_, 1650.

[69] _Eum._ 490.

[70] _Laws_, ix. ch. 9.

[71] Dem. _op. cit._ 645, 15.

[72] _Supra_, p. 250.

[73] _Supra_, p. 201.

[74] Dem. _op. cit._ 645, 25-646, 15.

[75] See _supra_, p. 177 ff.

[76] _Supra_, p. 213.

[77] _Laws_, ix. ch. 8.

[78] _Op. cit._ 646, 25-647, 7.

[79] _Supra_, p. 249.

[80] _Ath. Pol._ 52.

[81] _Op. cit._ p. 428.

[82] Dem. _in Aristoc._ 629.

[83] viii. 121.

[84] viii. 40.

[85] _Areopag._, 156-7.

[86] _Op. cit._ p. 373.

[87] Art. in Daremberg and Saglio, _s.v._ φόνος, p. 440.

[88] See _supra_, pp. 147, 182, 237.

[89] Plato, _Euthyphro_, 2A, 3E.

[90] _C. Euerg. et Mnesib._ 1161; _supra_, p. 182.

[91] _In Timoc._ 702; _In Androtion._ 593; _supra_, pp. 181, 232, 236.

[92] _In Aristoc._ 646, 647.

[93] viii. 121.

[94] _Ath. Pol._ 52.

[95] _Areop._ pp. 156-7.

[96] _De Myst._ 29.

[97] _C. Andoc._ 104, 10.

[98] _Supra_, pp. 81 ff.; 91 ff.

[99] _Supra_, pp. 93 f.; 112.

[100] _G.C.A._ (Eng. trans.), p. 124.

[101] _Ib._ p. 123.

[102] viii. 125.

[103] _Areopag._, p. 139.

[104] _In Macart._ 1069.

[105] _Op. cit._ p. 124.

[106] _Eum._ p. 138.

[107] _Loc. cit._

[108] _Jahrb. f. cl. Phil._ 1875, i. 196.

[109] _Loc. cit._

[110] _Areop._ p. 213.

[111] _De Eph. Athen. nomine._

[112] _Areopag._, p. 213.

[113] _Op. cit._ p. 313.

[114] viii. 125.

[115] _Ath. Pol._ 57, ll. 30-31.

[116] _Ib._ 57, l. 24.

[117] viii. 111.

[118] viii. 125.

[119] _Op. cit._ p. 124.

[120] _Ath. Pol._ 3.

[121] _Il._ xviii. 500 ff.

[122] _Supra_, p. 192.

[123] _s.v._ ἐξηγηταί.

[124] viii. 124.

[125] viii. 111.

[126] _Theseus_, 25.

[127] _C. Andoc._ 104, 10.

[128] _Op. cit._ pp. 124, 387.

[129] _Eum._ p. 152.

[130] _Ib._ p. 148.

[131] _Supra_, p. 193.

[132] _Laws_, vi. ch. 7.

[133] _Ath. Pol._ 3.

[134] _Ib._ ch. 57.

[135] _Infra_, p. 273.

[136] _Eum._ p. 135.

[137] _Ib._ p. 153.

[138] _Op. cit._ p. 122.

[139] _Ath. Pol._ 3, 4, 8, 25, 27, 57.

[140] _Eum._ p. 137.

[141] See Gilbert, _op. cit._ pp. 123-4.

[142] viii. 125.

[143] _Solon_, 19.

[144] _Ath. Pol._ 4, 8.

[145] _Ib._ ch. 9.

[146] _Eum._ pp. 135-136.

[147] _Eum._ p. 135.

[148] _Ib._ p. 153.

[149] _Ib._ p. 135.

[150] See _supra_, p. 254.

[151] Aristotle, _Ath. Pol._ 25, 27.

[152] _In Aristoc._ 642.

[153] _Op. cit._ p. 122 ff.

[154] viii. 125.

[155] _Solon_, 19.

[156] Pollux, viii. 125.

[157] _Ars Poetica_, 23.

BOOK III

POINE IN ATTIC TRAGEDY

CHAPTER I

AESCHYLUS

The ruthless hand of callous Fortune has robbed the world and

civilisation of all save seven of the dramatic works of Aeschylus, the

first and perhaps the greatest of European tragedians. Of these seven

extant plays, there are only three which directly and formally present

any problems of blood-vengeance. These three plays are concerned with

a single theme, the murder of Agamemnon, King of Argos, by his wife

Clytaemnestra and by her paramour Aegisthus, and the subsequent vengeance

of Orestes. In the remaining plays (if one excludes the _Persians_) one

finds occasional and incidental references to bloodshed, which require

and will receive from us only a brief discussion. It is the Oresteian

‘trilogy’ which is our first and chief concern.

Horace[1] mentions the following maxim as one of the canons of ancient

dramatic art:

aut famam sequere aut sibi convenientia finge

(‘Either follow tradition or create new themes which are congruous

and consistent’). Now these alternatives are not necessarily mutually

exclusive unless the tradition is rigidly stereotyped. A considerable

scope for inventive genius and dramatic skill was provided by such

legends as those which centred around Orestes. We are convinced that

there existed quite a number of variants in the story of Orestes.

First of all, there was the original Homeric story, to which we have

already referred.[2] In this account, Orestes slew his mother and

Aegisthus in strict accordance with the Achaean system of vendetta.

His act was not murder but just revenge. There is no suggestion of an

ancestral curse, of an indefinite series of murders continuing from

generation to generation. Blood has been shed; blood is avenged by blood.

It was the Achaean principle, whether for strangers or for kinsmen. There

is no trace of divine interference or of social justice. Apollo has no

place or part in the story: there is no trial or official execution. We

cannot discover even the element of psychological conflict. The Achaeans

were soldiers, trained in the stern school of war. Neither emotion nor

family religion stood between passion and its satisfaction.

But the legend or legends which are found in Aeschylus present very

obvious and important points of difference. Are we to suppose that

Aeschylus was not aware of any other tradition save that which Homer

gives, that all the non-Homeric elements in the Aeschylean account are

Aeschylus’ own invention, and that in this invention he was guided by

the laws and the atmosphere of his own time? This is not our view of

the matter. The Homeric legend, in our opinion, had a long and varied

career before Aeschylus was born. It came down through many centuries,

reflecting, as it came, many different atmospheres, and assimilating many

different points of view, as it took shape in various localities.

Thus there was, we maintain, an Arcadian legend which told how Orestes

came as an exile—a murder-exile—to Azania and to the town called

Oresteum,[3] and how he died there as the result of snake-bite.[4] It

is impossible to reconcile this version of the story with another which

represented him as having married Hermione[5] and as having reigned as

King of Sparta; and with another story of his reign as King of Argos.[6]

Again, we shall see that there probably was an Argive legend, which

mentioned a trial of Orestes at Argos at which he was condemned to death.

From a legal point of view, this is the most important variant of the

Homeric saga. Euripides gives it due prominence in the _Orestes_, but

Aeschylus and Sophocles ignore it altogether.

Again, in what we conceive to have been the Attic forms of the legend,

there must have been at least two variations. In our analysis of the

Attic law concerning justifiable homicide,[7] we pointed out that

at one point the conception of homicide as justifiable may be very

closely related to the conception of homicide as extenuated. The short

duration of the exile penalty in cases of manslaughter or of slaying

in a ‘passion’ when the act is ‘forgiven’ indicates a very slight

legal difference between these two standpoints. Yet they cannot of

course be regarded as identical, and they cannot even be fused or

blended without a considerable indifference to consistency. In the

transition from the Homeric age to historical times it was inevitable

that Apollo, the champion and founder of the ‘pollution’ doctrine and

of homicide-purgation rites in Greek lands, should have been drawn into

the story. He is ignored, as we shall see later, in the Argive legend of

Orestes. But he is found in all the other variants. Yet his rôle is not

simple and definite. He purges Orestes certainly: but what was the nature

of the guilt which he has purged? Was the act of Orestes justifiable or

extenuated? In Homer the act was justifiable from the Achaean standpoint;

but the legend-makers of the ‘pollution’ era could not accept that

solution. For them, the immunity of Orestes could only be explained by

the direct intervention of Apollo in advance. But this intervention was

at one stage conceived as a complete justification, at another as a mere

extenuation of the vengeance of Orestes. We shall find traces of both

these conceptions in Aeschylus. In Sophocles the conception of Orestes’

act as justifiable matricide is predominant: in Euripides it does not

appear at all. The interpretation of Orestes’ act as extenuated matricide

does indeed appear in Euripides, but it is subordinated to another

viewpoint which is quite incompatible with this—namely, the viewpoint of

the Argive legend which ignores Apollo and regards Orestes as a common

matricide who is worthy only of death.

One or two other minor variations may be traced in the Oresteian legends.

Thus we read of a sentence which is very suggestive of perpetual exile

in the _Electra_ of Euripides,[8] while in other plays there is a

reference to the penalty of exile for the duration of a single year,

a penalty which is elsewhere extended by a decree of Apollo so as to

permit Orestes to embark upon a second expedition—this time to the

Tauric Chersonese![9] Again, the story which was invented to explain the

Athenian Pitcher-Feast, and which is mentioned in the _Iphigenia Taurica_

of Euripides,[10] is quite inconsistent with the Aeschylean legends, for

in the former case Orestes was represented as ‘polluted’ when he came to

Attica, while in the latter he is said to have been already ‘purged.’

The legal aspect of the Oresteia is further complicated by what we may

term archaic assumptions. We hope to show presently that the Attic

legends of Orestes would have been legally unintelligible if the Athenian

legend-makers had not assumed that Orestes came to Athens as an exile

_after_ he had slain his mother, and not, as Homer said, _before_. Again,

if they had not assumed that the Areopagus court, which in historical

times did not normally judge cases of homicide between strangers, did

judge such cases in early times, and that its verdict of acquittal,

which was ordinarily a proof of the innocence of the accused, could

at one time have been applied to a person who admitted the fact but

pleaded justification, the legal analysis of this legend would have

been impossible. We have seen[11] that before Solon the Areopagus court

adjudicated in all kinds of homicide cases. The attribution of such

functions to the Areopagus by Attic legend is therefore an archaism,

even though it is an ‘historical’ archaism. We cannot be certain whether

the archaism was transmitted from the sixth century onwards or whether

it was ‘invented’ by later minds by a process which is described as

‘conscious archaising.’ Again, according to the legend which conceived

Orestes’ act as extenuated matricide, he had already served a period of

exile before he reached Athens. In this account, therefore, the Areopagus

merely decreed him immune from further penalties. But such a decree was

never associated with the historical Areopagus! Thus it is clear that the

Oresteian legends sometimes contain ‘unhistorical’ archaisms. We must now

consider in detail the Aeschylean presentation of the story.

THE ‘AGAMEMNON.’

The outstanding event of the _Agamemnon_ drama, the pivot upon which the

plot revolves, and the catastrophe which gives it meaning, is the brutal

murder by Clytaemnestra of her husband, Agamemnon, King of Argos, after

his triumphant return from Troy. In this play Aeschylus follows in the

main the Homeric story, but there are one or two non-Homeric features

which must be indicated.

In the gloomy chants of the Chorus, in their veiled fears of coming

danger, one finds something more than the echoes of a political

conspiracy, one finds the unmistakable influence of the creed of

the ancestral curse. Are we to suppose that Aeschylus invented this

non-Homeric doctrine which, in his own day, was a ‘creed outworn’? Such

a supposition is improbable, for we know from Stesichorus[12] that this

doctrine had already in the sixth century been incorporated in the

legend. We have already[13] attributed the _floruit_ of this doctrine

to the post-Homeric age of chaos. Such beliefs survive in dogma and in

ritual long after men have ceased to adhere to them. In Aeschylus the

ancestral curse began with the famous ‘feast of Thyestes,’ but Euripides

attributes its origin to the murder of Myrtilus.[14] The Erinnyes of the

children who were brutally slain by their kinsman Atreus continued to

pursue the children of the slayer. Hence, in this play Cassandra, the

prophetess, cries out on her arrival at Argos[15]:

Yea! There, there, there! Here’s evidence enough!

Smell? Nay, I see, I hear them! Little children

Whose throats are cut, still wailing of their murder,

And the roast flesh a father tasted—swallowed!

Again[16]:

See the beginning of sorrows: what are these,

What dreamlike forms kneel on yon roof? Young boys

As they’d been slain by those who should have loved them,

Holding a burden piteous to be borne—

Gobbets of flesh, their very own, their entrails

Clearly discernible, the heart, the liver,

Of which their father ate!

In these lines we can hear the rumblings of the coming storm. When the

storm has passed, when the curse has found its mark, Clytaemnestra echoes

the same sentiment, thus representing herself as the divine instrument of

an avenging Justice. She says to the Chorus[17]:

Ye proclaim it my deed. Yet, beware!...

’Tis the spirit of Vengeance awaking from sleep

For the banquet of Atreus of old to Thyestes cruelly given,

Putting on the resemblance of her that was queen to the dead,

That hath visited all upon him

And hath sternly repaid a grown victim for little ones slain.

A second important point of difference between the Homeric story and

that of the _Agamemnon_ is the reference in the latter story to the

‘sacrifice of Iphigeneia,’ the daughter of Agamemnon, at the hands of her

father, at Aulis, and the interpretation of this act, by Clytaemnestra,

as a justification for the death which she inflicted on Agamemnon. It

would take us too far afield if we attempted to explain, at this stage,

the origin of the story of the sacrifice of Iphigeneia. England gives

an excellent account of this difficult problem in his edition of the

_Iphigenia Taurica_ of Euripides,[18] and we shall recur to this topic

when we come to deal with that play. The following points, however, may

here be briefly indicated:

(1) The ‘sacrifice’ of the daughter of Agamemnon to Artemis at Aulis

would certainly have been referred to by Homer if it had been an

historical fact, or even if the poet had heard a rumour of such a strange

event.

(2) This sacrifice, which is used as a ‘plea’ by Clytaemnestra, and

which is a well-established element in the Oresteian legends of Attic

tragedy, could hardly have been the invention of Aeschylus, for it tends

to diminish the guilt of the villains of the drama, Clytaemnestra and

Aegisthus, and it is far too complex a story to be attributed to the

invention of a single mind. The confusion of the Homeric word Iphianassa

with Iphigeneia, which was merely a cultus-epithet of the goddess

Artemis, the invention of a mock human sacrifice at Aulis which was

suggested by a sham rite of human sacrifice at a temple of Artemis in

the Attic coast town of Halae, and the translation of Iphigeneia to a

Tauric temple of Artemis, where Orestes was said to have interviewed his

sister—all these facts suggest, we think, the ‘ecclesiastical’ origin of

the story.

(3) The doctrine of the ancestral curse would not have mediated the

identification of Iphigeneia with Iphianassa. According to this doctrine

the death of Agamemnon was a natural result of the curse of Thyestes. But

the sacrificial death of Iphigeneia cannot naturally be connected with

such a curse.

(4) The Attic legend which regarded Orestes as justified by Apollo cannot

be supposed to have contributed to the genesis of the Iphigeneia story.

It is not probable that such a legend, which conceived Clytaemnestra

as a murderess and an adulteress, would have also presented her as the

heroic avenger of an act of sacrificial bloodshed which was performed in

obedience to a divine command.

(5) It is probable therefore that, although this legend of the

‘sacrifice’ may have originated independently of the Oresteia, it was

in conjunction with a second Attic legend which decreed for Orestes a

temporary period of exile, and which depicted a less implacable but

persistent pursuit by the as yet unappeased Erinnyes, that the story of

the sacrifice of Iphigeneia developed and took final shape. For when once

a legend has admitted in the hero a degree of guilt, it is so much easier

to admit also a degree of excellence in the villain. Hence it is that in

Aeschylus, who follows mainly the first of these legends, this ‘plea’ of

Clytaemnestra is not presented in a natural or forcible manner.

It is only at the end of the play, when the spectators are so fully

convinced of the amorous infidelity, the designing malice, the flagrant

hypocrisy and the murderous brutality of this queen of Argos, that they

cannot attach much value to the boastful words which proclaim her love of

her children, that she says to the railing critics in the Chorus[19]:

Prate not of dishonour! ‘Deserving’ were rather the word.

Had _he_ not prepared for his house an encumbrance of woe?

Let him not loudly plead there below

That in paying the price of her death whom a nation deplored,

The branch I had reared from his loins, he is slain with iniquitous

sword.

Men shall reap what they sow.

In regard to the penalty which Clytaemnestra expects to suffer, the

language of Aeschylus is deliberately vague. The Chorus say[20]:

Hast thou cut him off? Thou shalt be cut off from the State.

Our citizens shall hate thee with firm hate.

Clytaemnestra interprets these words as a threat of exile:

That is your sentence: I must fly the land

With public execration on my head.

We have seen[21] that an option of exile would have been permitted in

such cases in historical Attic law, for husband and wife were not usually

akin in blood. But the Achaeans did not recognise the exile penalty

in any circumstances. We have said[22] that the penalty of death and

private vendetta were the characteristics of Achaean vengeance. They

also characterised at various periods the blood-feuds of noble or royal

families whose conduct was uncontrolled by law. Thus, in fourth-century

Macedonia blood-vengeance was still of an Achaean or quasi-Achaean

type. Pausanias[23] tells how Antipater, the brother of Alexander,

ordered the Macedonians to stone to death the queen-regent Olympias, and

himself poisoned the sons of Alexander: how in turn Alexander called in

Demetrius, the son of Antigonus, and succeeded by his help in deposing

his brother Antipater and in punishing him for his matricide. Thus

Aeschylus, without knowing anything of the different modes of vengeance

of the Achaeans and the Pelasgians, was enabled, by the predominance of

Achaean vengeance in Homer, and the occurrence of quasi-Achaean vengeance

in outlying regions, to visualise[24] correctly the Achaean vengeance of

Orestes, and the Achaean punishment of Clytaemnestra. Hence he makes the

Chorus say[25]:

O that Orestes, if he lives to-day,

Might yet return auspiciously to Argos

And kill both tyrants in his pride of power!

Hence the exile to which Clytaemnestra[26] refers is an Achaean ‘flight

from death.’ But the penalty of death was the ultimate aim of Achaean

vengeance; and therefore the Chorus say[27]:

Robber is robbed: slayer slain: revenge is sure.

Firm stands, while Zeus remains upon his throne,

One law: who doeth shall likewise suffer.

THE ‘CHOEPHOROE’

In the _Choephoroe_ Orestes slays his mother and her paramour. Two

important deviations from the Homeric saga are manifest throughout the

play: (1) the conception of homicide as a ‘pollution,’ and (2) the

command which is given by the Delphian Apollo to Orestes, to slay his

mother in vengeance for his father’s murder. Thus Orestes says[28]:

We shall not fail: Apollo’s mighty word

Will be performed, that bade me stem this peril.

High rose that sovran voice, and clearly spake

Of stormy curses that should freeze my blood,

Should I not wreak my father’s wrongful death.

There is no doubt about the meaning of these words. Apollo, the

oracle-god of the Delphian Amphictyony, which, as we think,[29]

contributed so much to the historical homicide code of Greece, has

issued a definite command. It must be obeyed. If it is executed, its

execution must be just. No penalties can attach to such avenging, but

punishment unthinkable follows failure to avenge. Orestes tells us that

he would at least have lost his life if he did not slay his mother. But

a real Homeric Achaean would not have suffered for failure to avenge.

Was this Aeschylean conception, then, derived from contemporary Attic

law? Would an Athenian citizen of historical times have suffered in such

circumstances? We have seen[30] that pecuniary ‘private settlements’

were actual events, though not, as we think, legal events in historical

Athens. In such cases a relative of the slain would have benefited

by failure to prosecute.[31] But we have also shown that in Athens a

relative of a slain person who did not prosecute could be proceeded

against on a charge of impiety: and it is probable that, if convicted,

he would have been degraded from citizenship and sentenced to perpetual

exile. Are we then to suppose that Aeschylus deliberately imported into

the Homeric story conceptions which he borrowed from contemporary Attic

law, and that he also imported Apollo as a _deus ex machina_ whose rôle

it was to propound Athenian law to an Achaean king? This hypothesis is

very unsatisfactory. We prefer to believe that the non-Homeric elements

in this play had gradually found their way into the legend as it was

transmitted down the ages. It is, of course, unfortunate that the

legend-makers did not remember that Orestes lived at a time when murder

was not regarded as a ‘pollution’: but in a legend which evolved through

a long period of time it was inevitable that sentiments and customs of a

later age should have been attributed, anachronistically, to the people

of earlier periods.

We have already referred[32] to the anger which it was believed that a

slain person felt towards his relatives who did not avenge him, and which

contributed to the ‘pollution’ of delinquent relatives. It is only from

this standpoint that we can understand Orestes’ reference to the evils

that would follow his failure to avenge[33]:

The darkling arrow of the dead that flies

From kindred souls abominably slain,

And madness and vain terror of the mind

Should harass and unman me till the State

Should drive me forth, with brands upon my body.

So vexed, so banished, I should have no share

Of wine or dear libation, but unseen

My father’s wrath should drive me from all altars.

None should receive me: none should dwell with me,

And my long friendless life, bereft of honours,

Should shrivel down to darkness and decay.

The reference to the State in this quotation is noteworthy. In such a

reference we find ourselves very far removed from the Homeric saga and

the days of private vengeance! The brand or stigma which is mentioned

is that civic degradation which is known as ἄτιμία. We cannot suppose

that these actual words were recorded in the legend which Aeschylus

follows. The statement is much too long for a real oracle! Did Aeschylus

then derive this sentiment from contemporary Attic life? We have seen

that the pollution-doctrine was closely associated, in Greece, with

the interference of the State in matters of homicide. It follows that

the importation of this doctrine into the Oresteian legend would have

naturally introduced, also, the conception of Orestes as a State

criminal, worthy of State punishment. When once the legend received, so

to speak, this colouring, the general atmosphere of the story would have

suggested such words as are attributed in this quotation to Orestes. We

believe that these words of Orestes are the creation of Aeschylus’ own

mind, but we do not attribute to Aeschylus the creation of the legendary

atmosphere which makes such words intelligible.

There is a subtle suggestion of the clash of clan-feuds which

characterised the transition period of the Dark Ages in the Aeschylean

description of the conflict of viewpoints between the Erinnyes of

Agamemnon and the Erinnyes of Clytaemnestra—a conflict which it is

improbable that Aeschylus invented. The avenging goddesses are conceived

as real beings: they are not mere delusions or ‘extrajections’ of a

distracted mind. We have already referred[34] to Orestes’ fear of the

‘darkling arrow’ which may be hurled at him by the Erinnyes of his

father. On the other side, however, stand the Erinnyes of his mother, who

are equally formidable. Orestes says[35]:

Ah! ah!

What grisly troup come yonder in grey robes,

With Gorgon faces and thick serpent hair

Twisted in writhing coils? I must be gone.

This is no fancy, but a present woe.

I see my mother’s Furies clearly there!

This conflict Apollo, of himself unaided, is unable to avert. But we

shall now see how Apollo and Athene, in conjunction, persuade the Furies

of Clytaemnestra to accept ‘appeasement.’ It was thus, as we conceive

it, that the religion of pollution and political synoekism ultimately

overcame the resistance of the clans to new laws and new gods. It was

thus that, after years of chaos and transition, ghosts came at length to

obey State gods and State laws as in tribal life they obeyed the ‘dooms’

of the tribe.

THE ‘EUMENIDES’

The main theme of the _Eumenides_ is the trial, at the Athenian

Areopagus, of the Argive Orestes who had slain at Argos his mother and

her paramour, and who upon acquittal returns to Argos to occupy the

throne of his murdered father. We admit that the exaltation of the

Areopagus is one of the motives of the dramatist. There is much to be

said for the view of Blass[36] that the conflict between Apollo and

the Furies made this ‘divine drama’ worthy of Athenian interest. But

we maintain that Aeschylus would not have selected such a theme for

presentation to an Athenian audience, if it had not also contained a

difficult legal problem which was calculated to thrill the emotions of

those litigious men of Athens who were at once judges, litigants and

legislators. The play was produced at the time of the curtailment of

the powers of the Areopagus by Pericles and by Ephialtes. Aeschylus

suggests[37] that it was this Council which held the first trial for

bloodshed in a barbarian world. In this view there is no protest against

the reform of Ephialtes, for such a reform seemed to recognise that

homicide-trial was the sole and proper function of the Areopagus.

Whether the play was produced before or after this reform it is

impossible to say. Bury holds[38] that the play is not a protest after

the event, that, on the contrary, Aeschylus approved of the reform. Other

scholars maintain, however, that Aeschylus was opposed to democratic

interference with the established privileges of an ancient Council,

and that he left Athens on this account and died in Sicily of a broken

heart.[39] Our reading of the play inclines us to support the view of

Jevons which will be manifest from the following extract[40]: ‘The

_Eumenides_,’ he says, ‘was produced in 458 B.C. ... at a time of great

political excitement in Athens. The oligarchical party had just been

defeated on both their foreign and their home policy. Their foreign

policy was alliance with Sparta.[41] The home policy consisted in

opposing such changes in the constitution as would give more power to

the people, and at this time also consisted particularly in supporting

the powers and privileges of the Areopagus against the attacks of the

democratic party.... The democrats under Ephialtes succeeded in depriving

the Areopagus of its political powers, leaving to it only the right of

trying cases of homicide....[42] The _Eumenides_ is sometimes said to be

a panegyric on the Areopagus and sometimes even to have been a call to

all good men to join in preserving to it the political powers which it

had long enjoyed. But it is probable that the _Eumenides_ was produced

after the reforms of Ephialtes: and as Aeschylus represents the Aeropagus

to have been founded to try cases of homicide, the very class of cases

which Ephialtes left to it, it is more reasonable to regard the play as

having been intended to reconcile those who strove for the preservation

of the political powers of the Areopagus to the new state of things

which Aeschylus shows to be in harmony with the original nature of the

court. This view receives some support from the fact that the alliance

with Argos to which the oligarchic party was opposed is also shown by

Aeschylus (727 _et seq._) to be in harmony with tradition, myth, and

religion.’[43]

Verrall takes up a similar attitude to this problem[44]: ‘It is clear,’

he says, ‘from the tone of the final scene and it is generally recognised

that Aeschylus did not intend to appear at least as a partisan, that

he supposed himself to be a peacemaker and to have advanced only what

would be generally approved. He justifies trial by jury: he extols the

Areopagus as a court of crime: he leaves room, but in vague terms, for a

larger execution of its vigilant protection.... He is for the middle way,

“neither tyranny nor anarchy.”... But the attitude of the poet is not

that of a practical politician. Religion, always first with him, in the

_Eumenides_ covers the whole field.’

We do not agree with Verrall’s view that Aeschylus justifies ‘trial by

jury,’ if Verrall means by this phrase trial by popular juries such as

the Heliasts of the post-Solonian age. The Areopagus was never invaded

by the Heliasts. Its procedure was fundamentally different from that of

Heliastic courts. Its personnel was composed of archons and ex-archons.

It is to such judges that Athene refers when she says that she will

select, for the trial, the best of her citizens.[45] There was for

the Areopagus no election by lot, such as characterised the popular

juries,[46] nor is there in the phrase ἀστῶν τῶν ἐμῶν τὰ βέλτατα any

reference to the Ephetae, the aristocracy of birth. Aeschylus either

never knew, or he has forgotten, or he has perhaps deliberately ignored

the aristocratic character of the pre-Solonian Ephetae-Areopagus.[47]

It is the plutocratic Solonian Areopagus of the sixth century and of

his own day that he puts before us. When Verrall says that ‘Aeschylus

leaves room ... for a larger execution of its vigilant protection,’ he

implies that Aeschylus opposed the reform of Ephialtes. As this view

commits Aeschylus to the exaltation of plutocracy, we prefer, with the

scholiast, to give a narrower interpretation to the phrase εὑδόντων ὕπερ

ἐγρηγορὸς φρούρημα[48] and we translate it: ‘the vigilant custodian of

vengeance for the slain,’ whereas Verrall takes the ‘sleepers’ to mean

‘the citizens when they are asleep at night.’

We think, moreover, that Verrall overestimates the religious as distinct

from the legal aspect of the play. Apollo and the Furies seem to us to

present a rather sordid picture at the trial. If Apollo had maintained

his traditional rôle of Olympian autocracy, he would have been more

impressive. As it is, he condescends to discuss the justice of Orestes’

act with rival deities of a quasi-diabolical type: and his arguments

are rhetorical rather than logical. He advances the absurd opinion

that the real parent of a child is the father not the mother.[49] This

view and the similar opinion of Athene[50] may of course be explained

as a characteristic sentiment of the Eupatridae, an Athenian noble

caste, who were excluded from the worship[51] of the Semnai Theai at

Athens, a sentiment which is here directed against the Erinnyes, by

way of anticipation, in view of their prospective metamorphosis into

Semnai Theai.[52] But it is more probable that the argument represents

an undignified squabble between Olympian gods and Chthonian goddesses,

between the deities of the ‘pollution’ religion and of new-born Greek

States, on the one hand, and the old clan-ghosts who are here conceived

as Titans, on the other.[53] The Furies are not even consistent with

themselves. At one time[54] they pose as the avengers of all kinds of

homicide: at another[55] they are only concerned with kin-slaying. The

Olympian exaltation of ‘the father’ is met, swiftly and flippantly, in

the manner of repartee, by an objectionable quotation from Olympian

theology! ‘Did not Zeus,’ the Furies ask,[56] ‘bind in chains his aged

father Kronos?’ The answer of Apollo is even weaker than the question:

‘to fetter,’ he says, ‘is not to slay....[57] Remedies for the one are

easy, remedies for the other there are none!’ If then the religious

aspect of the trial of Orestes had been predominant or paramount in the

mind of Aeschylus, we do not think that he would have presented the

gods in such a frivolous and futile manner to an audience of Athenian

citizens. He would, much more probably, have followed a different form

of the legend, which is found in Euripides,[58] and is mentioned by

Demosthenes,[59] and which represented the Twelve Olympian Gods as the

judges of Orestes’ guilt. Hence we believe that the dramatic aspect

of the story was the more important one for Aeschylus. The essence of

tragedy is conflict, and there is conflict in the _Eumenides_, between

rival emotions, between rival ethical theories, between rival gods and

goddesses, first, last, and all the time! But next in importance to

the dramatic motive we place the legal motive of the play. We do not

agree with Verrall in maintaining[60] that ‘what is certain is that

in the law of the matter, the law proper, he (Aeschylus) took little

interest. The ultimate issue of his play is not legal but religious....

It matters nothing that the prosecutors, in different parts of the

play, assume, respecting the limits of punishable homicide, views which

are not compatible: or again that the question of the validity of the

oracular command, though it is a main point in the defence, and though

the jury must be supposed to disagree about it, is not argued, unless

contradiction is argument, at all.... On law, therefore, and the history

of law, the _Eumenides_ is but a dubious authority: and the reader or

expositor of Aeschylus as such is not bound or perhaps entitled to

consider the play from this point of view.’ This kind of reasoning seems

to us very suggestive of a well-defined mental attitude, namely, that

of a writer who knows little or nothing about law and who, in addition,

does not want to know anything about it. We do not assert that the legal

problems of the _Eumenides_ are simple, but they cannot for that reason

be ignored. The more difficult a problem is, the greater is the prestige

of a court which can decide the issue. Athene confesses the difficulty of

the problem in this play and she requests the citizens of Athens to solve

it.[61] What an exaltation of religion! What a contempt for law!

The legal complexities of the trial of Orestes arise, we have said,

from the circumstances which attended the evolution of the legends. The

introduction of the story of Apollo’s command to Orestes was intended

by the legend-makers of the ‘pollution’ era to explain and to reinforce

the Homeric conception of Orestes’ act as justifiable matricide. That

Apollo’s command justified his act is the legal plea of Orestes, in this

play; at least, it is the predominant plea.

Thus he says to Apollo[62]:

Now give thy witness and expound the truth.

Apollo, was I just in slaying her?

To have done it I deny not. ’Tis the fact.

But whether to thy thought this matricide

Be justified or no, declare thy mind

For information of those present here.

We may naturally ask: ‘Why is Apollo appealed to for judgment, when he

has been cited as a witness?’ We have argued that, in Attic law, if we

may trust Plato,[63] matricide could never have been legally justified.

On the other hand the Apolline doctrine of pollution declared that the

defaulting avenger was polluted. The pollution doctrine permitted and

did not condemn ‘private execution.’ It was synoekised State power which

made such execution criminal.[64] The conflict which is presented by

these different points of view was too grave a matter for the decision of

a human court. The command of Apollo was regarded by the legend-makers

as the only solution of that conflict. The only question which a human

court could be reasonably expected to decide was the question whether

Apollo did actually command the act of Orestes. If the actuality of such

a command was established, the acquittal of Orestes was inevitable.

The only alternative possibility was a verdict of ‘responsibility

for murder’[65] against Apollo! But such a verdict, in the religious

atmosphere of the ancient City, would have been unthinkable.