trace of itself in inscriptions or in literature. But we fail to see
how even the Draconian law could have ever originated in any one State,
or in the mind of a single legislator. We believe that it was, on the
contrary, of international or Amphictyonic origin. We have suggested,
moreover,[202] that the homicide penalties of historical Greece were the
result of a compromise between the religion of Apollo and the traditions
of local State-gods and of the Erinnyes who represented the wrath of
the slain and the desire of the relatives for retribution. Does not this
theory help to explain and does it not therefore derive support from the
fact that the punishment of homicide was most severe and the duty of
prosecution most widely diffused in the case of homicide committed in a
State in which both slayer and slain were legally ‘strangers’?

Glotz,[203] who sees in the protection of a murderer’s life ‘abroad’
(which means, as we now see, anywhere outside the one, two, or three
States which might be involved in the case) the operation of treaties
of ἀσυλία or Refuge between individual States, explains the extradition
law regarding the seizure of hostages as an ancient tradition of the
clans. Indicating the contrast which exists between ancient and modern
extradition, he observes[204]: ‘En Grèce, l’extradition a de bonne heure
figuré dans le droit des gens. Mais elle n’était pas du tout à l’origine
ce qu’elle est devenue. Les peuples civilisés des temps modernes ont pour
principe de livrer des étrangers présumés coupables de crimes commis en
pays étranger, mais non pas leurs nationaux, même pour crimes commis
sur terre étrangère. Les anciens se faisaient un point d’honneur de ne
pas abandonner le malheureux qui s’était enfui sur leur sol et confié
en leur protection. L’hôte est toujours sacré: le foyer d’une cité est
un asile inviolable ... c’est l’extradition telle qu’ont pratiquée
longtemps les Aryens, _ut populus religione solvatur_.’ It was, according
to this view, only a sense of honour, a fear of violating the sacred
rights of hospitality, which gave to Greek extradition law its peculiar
characteristics. But criminals cannot claim any right of hospitality, in
the ordinary sense. Moreover, Glotz forgets that a Greek State had to
expel or deliver up a stranger if the deed of blood was committed in its
territory. It also had to give up its ‘nationals’ if these ‘nationals’
had slain foreigners at home or abroad. Glotz draws too fine, too neat a
contrast between ancient and modern extradition. He does not explain the
origin of the ancient system. To say that it existed in early clan-law
but that it developed later into something quite different is not an
explanation of it. Clan-extradition arose, we believe, as a solvent of
war between the clans concerned. The tribal court or the city court may
possibly have acted in Pelasgian times as a medium for the operation of
this solvent. But the historical system of extradition, with all its
minute differentiations and variations, bears, we think, the stamp of
Amphictyonic legislation in the age of aristocratic rule in Greece, or in
what we may call the Apolline era. It was only when homicide became an
offence against an international god at Delphi, that is, in the seventh
century B.C., that such legislation came to be applied to this kind of
‘crime.’ This is our explanation of the origin of the law. It was an
international compact issued in the form of an oracle.

As an illustration of the interference of oracles in international
disputes we will cite one or two passages from Herodotus. At the battle
of Thermopylae in 480 B.C. Leonidas, the famous king and commander of
the Spartan band, was slain, and Xerxes, the Persian king, mutilated
the corpse by decapitation and crucifixion.[205] This act is regarded
by Herodotus as a barbarous violation of the customs of war, and is
attributed by him to the rage and anger of Xerxes at the time. The
Spartans seem to have been able to present the act afterwards as a case
for damages, and they secured the support of the Delphic oracle. When
the Persians had failed in their expedition against Greece, and Xerxes
was returning to the Hellespont, ‘an oracle came from Delphi to the
Lacedaemonians bidding them ask satisfaction from Xerxes for the death
of Leonidas and accept that which should be given by him.’[206] Xerxes
ridiculed the suggestion at first, but later he referred the herald to
Mardonius, who would, he said, pay satisfaction. At the battle of Plataea
Mardonius was slain, and then, says Herodotus,[207] ‘the satisfaction
for the death of Leonidas was paid by Mardonius according to the oracle
given to the Spartans.’ Again, we are told[208] that after the Persian
conquest of Lydia, Cyrus charged Mazares to bring to him alive a certain
Pactyas, a leading anti-Persian rebel. Pactyas fled to Kyme, and when
messengers came from Cyrus demanding his ‘extradition,’ ‘the Kymeans
resolved to consult the deity at Branchidai as to the course which they
should follow.... For there was there an oracle established of olden
time, which all the Ionians and Aeolians used to consult’: and ‘when they
thus inquired, the answer was given them that they should deliver up
Pactyas to the Persians.’ Herodotus says that the Kymeans did not give up
Pactyas, as they suspected the oracle of political designs. Later, the
oracular shrine informed them that they were bidden to deliver up Pactyas
only in order that they should be punished by the gods for contemplating
the violation of a suppliant’s rights! This does not imply, as Glotz[209]
supposes, that such rights belonged to murderers, for Pactyas was not a
murderer. We cite the passage here merely to illustrate the custom of
consulting oracles in ‘extradition’ disputes.

The theory which connects Apollo with the doctrine of homicide as a
‘pollution’ finds further confirmation in many Greek legends. The
story of the purgation of Ixion by Zeus, which is first referred to
by Pindar[210] and by Aeschylus,[211] is, we think, an instance of
‘reconstruction,’ or ‘retrojection,’ on the part of legend-makers who
were less concerned with the matter of consistency in the character
of Zeus than with the maintenance of his exalted rôle in the Olympian
religion of post-Homeric days, which tended to extol Apollo the Son over
Zeus the Father. Sidgwick’s view[212] that this legend originated in
an attempt to derive the name _Ixion_ from the root ἴκ as found in the
words ἱκέτης and ἱκετεύειν (which refer to suppliant-rights) seems to us
very probable. Pindar has perhaps been misinterpreted by Verrall[213] in
the translation of ἐμφύλιον αἷμα as kindred-murder. We have seen[214]
that the word ἔμφυλος sometimes carries this meaning in Homer. But in
the Pindaric narrative it was his father-in-law whom Ixion slew, and
fathers-in-law are not, as a rule, akin in blood to their sons-in-law,
though they may belong to the same tribe (φυλή). Pindar asserts that the
act of Ixion was malicious: but we have said[215] that for malicious
kin-slaying purgation was not possible: ‘Of a kindred blood defiled,’
says Plato,[216] ‘there is no other cleansing ... before the life that
has sinned shall pay kin blood for kin blood.’ Hence, it is necessary
to suppose that Ixion was not akin to his victim. The legend of the
purgation of Ixion is open to suspicion on the further ground that Ixion
is said[217] to have been the first who ‘supplicated’ for purgation,
and is said to have been purged _by Zeus_. Now Apollo, not Zeus, was
the pioneer amongst the Purifying gods (καθάρσιοι θεοί). It was Apollo
who purified Orestes, in the legend which Aeschylus follows in the
_Eumenides_.[218] ‘Mine was the house,’ says Apollo, ‘and mine the hearth
which received this suppliant, and I am the purger of his blood-guilt.’

We shall see, later,[219] what a difficult problem the Homeric saga of
Orestes presented to the legend-makers of the ‘Apolline’ era (750 B.C.
onwards). There was only one means by which the Homeric story could be
retained without assuming an atrocious indifference to kin-slaying on the
part of the Homeric Greeks: namely, by representing the act of Orestes
as in some way justified. But the Apolline code, if we may regard Plato
as a worthy exponent of it, did not admit a plea of justification for
the slaying of a parent in any circumstances. ‘In what other way (than
by death),’ says Plato, ‘would it be right to punish one whom no law
will permit, even in self-defence and in danger of his life, to slay
his father or mother ... and whom (the legislator) will bid to suffer
anything rather than perpetrate such a deed?’[220] We are convinced
that there was one thing, and one thing only, which would have been
accepted by Plato as a justification for such an act, namely, the express
command of Apollo himself. Apollo was the reputed founder of the Attic
Court Delphinium; he was regarded as the initiator of the distinction
between just and unjust slaying[221]: he appointed and controlled the
Exegetae or the Sacred Interpreters of the laws of ‘purgation’[222];
surely his command, impossible to disobey, would have been admitted as
a justification for the deed of Orestes. In the _Eumenides_[223] of
Aeschylus, Orestes says to Apollo: ‘Be thou my witness: show, Apollo,
whether I slew her justly. The fact of slaying I do not deny: do thou
decide whether in thy judgment I slew her justly or not, that I may tell
these judges here.’ And Apollo replies[224]: ‘I am a prophet and will
not deceive: never, in my oracular shrine, have I said aught that Zeus,
the father of Olympian gods, doth not command. Take note, ye judges, of
the value of such a justification.’ So, in the _Electra_ of Sophocles,
Orestes says[225]: ‘When I approached the oracular shrine of Pytho, to
learn whereby I might punish the murderers of my sire, Phoebus made
answer: “No host of shielded warriors, but thine own guileful craft, O
prince, and thine own arm shall deal the death-blow righteously.”’ Even
in the _Orestes_ of Euripides, a drama in which, as we shall see,[226]
the plea of justifiable matricide is almost entirely absent, Orestes
tells the Chorus[227]: ‘Behold! Apollo, who in his palace in mid-earth
gives to mortals oracles most clear, by whom we are entirely guided—him I
obeyed when I slew my mother. ’Twas he who erred, not I. Is it not enough
to remove “pollution” if I transfer the guilt to the god?’

Again, in the post-Homeric form of the legend of the Theban Oedipus, it
is Apollo who commands the Thebans to search for the murderer of Laius,
and, when they have found him, to put him to death or to drive him from
the land.[228] In this option of death or exile we have the normal
Attic, and, therefore,[229] the normal Greek penalty for wilful murder.
The direction which Apollo gives, in the _Oedipus Rex_ of Sophocles,
is quite general.[230] Apollo speaks therefore as a lawgiver, and as a
deity angered by unpunished homicide, rather than as a prophet; since he
conceals for a time his knowledge of the slayer of Laius. In historical
Greek law the penalty for parricide was invariably death. If Apollo
had proclaimed the death penalty without the option of exile, for the
slayer of Laius, the famous drama of Sophocles would have had to be
considerably if not fundamentally altered. The area of the ‘search’ would
have been limited to the kinsmen of the deceased Laius. The Homeric
story of Oedipus is so very different from the later ‘tragic’ story that
the evolution of the legend must have been attended with considerable
difficulty. Legend-makers could not ignore the Homeric saga which
told[231] how Oedipus, having slain his father, ruled over the Cadmeans,
even though ‘the gods revealed these things to men.’ How was this fact
to be explained from the standpoint of the post-Homeric doctrine of
‘pollution’ according to which all wilful parricides were inexorably put
to death? We have suggested that Homer did not understand the mysterious
immunity of Oedipus, and that this immunity was derived from a Pelasgian
story, based on Pelasgian legal distinctions, to the effect that Oedipus
did not really know that it was his father whom he slew, and that
therefore Oedipus could not be regarded as a parricide of full guilt.
It is also possible to suppose that the old Pelasgian story contained a
reference to a further extenuation of Oedipus’ guilt, namely, a certain
_provocation_ on the part of Laius and his attendants; Sophocles says
that Oedipus was insulted by the herald of Laius and that Laius smote him
on the head with his goad.[232] Sophocles tells us also that when all the
facts concerning the death of Laius had come to light, Kreon, instead
of proceeding to punish Oedipus, decided to consult again the oracle
at Delphi. Thus, when Oedipus, anxious to avail himself of the option
of exile, asks Kreon to drive him from the land, Kreon answers[233]:
‘Assuredly I should have already done so, did I not first desire to
learn from the god what should be done.’ Now if the deed of Oedipus had
nothing to extenuate it beyond the fact that he did not know his father
when he slew him, he would still have had to suffer the penalties of
wilful murder, namely, death or perpetual exile. If, then, Kreon did not
immediately proceed to punish Oedipus, but consulted Apollo a second
time, this must be attributed either to the element of involuntariness or
to the element of provocation, or to both these elements in the legend
of Oedipus. These elements of provocation and involuntariness are most
important for the legal intelligibility of the _Oedipus Coloneus_, as we
shall see later.[234] At present we wish to emphasise the fact that this
legend, like the legend of Orestes, became, so to speak, ‘Apollinised’ in
post-Homeric times. Such transitions are only intelligible if we assume
a connexion between Apollo and ‘pollution.’ We may infer that, in the
post-Homeric legend, Apollo took a lenient view of the guilt of Oedipus,
from the fact that, in the _Oedipus Coloneus_, the responsibility for his
continued exile is laid not upon Apollo, but upon Kreon and the sons of
Oedipus, who wish to enjoy the vacant throne of Thebes.[235] According to
Euripides,[236] Oedipus’ sons imprisoned him, but Kreon drove him into
exile.

In the _Orestes_ of Euripides[237] it is Apollo who saves Orestes from
the wrath of the Argives who have condemned him to death. Apollo decrees
that, when Orestes has endured a period of exile and has submitted to a
trial at Athens, the Argives must accept as their king a man whom they
had already deemed worthy of an ignominious death! In the _Electra_ of
Euripides,[238] Castor and Pollux refer, by way of prophecy, to the fact
that Apollo will ultimately secure Orestes’ deliverance from the Erinnyes.

In the _Ion_ of Euripides[239] the Pythian priestess of Apollo commands
Ion not to slay Creusa, who had attempted to poison him, and who
otherwise would have urged in vain her plea of self-defence and the
sacredness of her sanctuary.

In the _Andromache_ of Euripides, Apollo is criticised for having
permitted the slaying of Neoptolemus within the precincts of the temple
at the hands of Orestes and the Delphians. The Messenger says[240]: ‘Thus
has the Lord who gives oracles to others, who is the umpire for all
men of what is right, requited the son of Achilles ... like any wicked
mortal, he stores in his memory an ancient quarrel.’

Thus the conception of homicide as a pollution permeates all Greek
tragedy: however various the legends, however different the localities
to which they refer, they all breathe the same Apolline atmosphere. We
have already[241] quoted Herodotus’ opinion as to the universality of
the ‘purgation’ rites by which the pollution of homicide was cleansed.
If it be true, moreover, that the laws which regulated the historical
Greek treatment of homicide were more or less identical in all the more
important and advanced Greek States, would not this fact suggest that the
origin of these laws must be sought, not in the genius of occasional
local legislators, but rather in the simultaneous universal operation of
identical causes? One of these causes, we believe, was the doctrine of
pollution.

The legends of Attic tragedy on the whole suggest a uniform system of
murder-law in historical Greece. In Euripides’ _Orestes_[242] we are
told that Orestes did not follow ‘the common law of the Greeks.’ In
the _Heracleidae_,[243] Eurystheus, referring to a threat of murder on
the part of Alcmene, says: ‘By the laws of the Greeks, if I am slain I
shall cause my slayer to be polluted.’ In the _Hercules Furens_,[244]
Hercules, the slayer of his children, feels that men’s doors will
be closed against him in all parts of Greece, without exception. We
have already[245] referred to the possibility that a more severe code
of penalties for homicide existed at Sparta than in other parts of
Greece. Xenophon[246] says that a certain Dracontius was condemned to
perpetual exile for involuntary homicide. If we have here a really
exceptional penalty, we must attribute it to the peculiarly military
character of the Spartan State. But can we be sure that the penalty
was exceptional? Plato decrees perpetual exile for involuntary slaying
between strangers in any given State[247]; moreover, for slaying in a
passion, which is quasi-involuntary, he decrees perpetual exile for the
second offence.[248] Xenophon does not give us sufficient details about
Dracontius to enable us to regard this penalty as a definite exception.
Again, in regard to Crete, we have indicated[249] the absence of any
reference to wergeld in the laws of Gortyn. This shows the influence
of some universal Greek doctrine which led to its abolition. The fact
that Apollo was said to have received many of his Delphic priests from
Crete,[250] and the fame of the Cretan purifier, Epimenides, in the
seventh century B.C., point to the same conclusion.

WERGELD AND PRIVATE SETTLEMENT

We must now discuss more fully the question: did the pollution doctrine
abolish wergeld? We can answer this question satisfactorily by merely
answering another question which is intimately connected with it,
namely: ‘was “private settlement” legal in historical Athens?’—‘was it
lawful for the relatives of the slain, if they so wished, to abstain from
prosecution, and could they legally accept from the slayer a bribe or a
gift if they so abstained?’ We do not deny the fact that such settlements
did occasionally take place; but if these settlements were legal, then
our theory that pollution abolished wergeld cannot stand. We are glad
to be able to quote the authority of Philippi[251] in favour of the
illegality of ‘private settlement,’ but as the arguments of Philippi are
rejected by Glotz,[252] we must in turn reject the arguments of Glotz!
It is strange that Müller, who holds[253] that wergeld originated in
‘pollution,’ maintains that in historical times ‘private settlement’ was
not valid except in cases of involuntary slaying.[254]

For the sake of clearness we will summarise our own conclusions in
advance. We believe that ‘private settlement’ was permitted by law or
custom—it was not _expressly_ prohibited or permitted by any written
code—whenever a ‘release’ from blood-guilt on the part of the victim,
before death, was _formally granted_, or, in the absence of a ‘charge,’
could be _tacitly assumed_; but that otherwise ‘private settlement’
was a sin, a religious quasi-criminal offence, and must therefore
have been legally invalid, in the sense that the offender was liable
to prosecution.[255] This view is not only consistent with, but is in
part derived from, our theory of the incompatibility of ‘pollution’ and
wergeld. ‘Private settlement’ is not, of course, wergeld in the strict
sense, but it has this much in common with it, that it allowed the slayer
to remain in his native State for the rest of his life. His presence was
not a cause of pollution.

We have seen[256] that the Greek religious doctrine of homicide as a
‘pollution’ expresses a compromise between the newly evolved power of
synoekised States and the traditions of the tribes, between the ideals of
an international autocratic Apollo and the claims of the Erinnyes of the
slain who reflected the desires of the dead and of their relatives. It
follows that whenever the laws which resulted from this compromise were
observed, whenever the prescribed penalty or atonement was paid, Apollo
and the Erinnyes were logically compelled to accept the ‘appeasement’
and to signify by their consent, in certain cases, to the ceremonial
of ‘purgation’ that the ‘pollution’ of the criminal was washed away.
But it was never forgotten that, in theory, the pollution of the slayer
had a twofold source: that the stigma of bloodshed was, so to speak,
bicellular, and was expressive of the anger of Apollo, on the one hand,
and of the anger of the Erinnyes on the other. It is obvious, therefore,
that a ‘release’ on the part of a dying victim precluded any serious
anger on the part of the Erinnyes, whereas a victim’s solemn command
to his relatives to prosecute his slayer[257] set in motion the entire
supernatural vigour of the avenging Erinnyes. Thus in the _Eumenides_
of Aeschylus[258] the Furies tend to go to sleep and to forget until
they are goaded into activity by the ghost of the slain Clytaemnestra.
Hence it is correct to maintain that in the event of a formal or
presumed ‘release’ on the part of a dying victim, the slayer was not
in any real sense polluted. In such cases, the slayer may have had to
undergo ‘purgation’ of a minor kind, one of these local supplementary
‘purgations’ which were intended to free the citizens from religious
scruple.[259] Purgation, we have said, was not symbolical of guilt, but
rather of atoned guilt or of innocence. But in such cases the slayer was
not really ‘polluted.’ His presence in his homeland did not anger the
dead or the gods. But if the dying victim did not formally release his
slayer, if he charged his relatives to prosecute, then in all cases,
even in the event of justifiable homicide, the slayer was ‘polluted’
until he was formally purged. This purgation could not be performed
by any ordinary person or at any ordinary time. The conditions of its
performance were regulated by Delphic law and by State law. Once charged
by the relatives of the slain, the accused had either to admit guilt
or to advance a ‘plea,’ and the civic penalty had to be paid before
purgation was permitted.

It is difficult to understand how Glotz can attribute to ‘pollution’
a considerable influence in abolishing ‘private vengeance’ and in
necessitating State interference in homicide,[260] and at the same time
maintain[261] that in historical State justice ‘private settlement’ was
legal as an option for prosecution. Attic law proves that the slayer was
‘polluted’ during the long period of time—three or four months—which
intervened between the first public accusation, at the funeral of
deceased, and the trial.[262] He could not enter the city temples, or
frequent the public places, under penalty of death. Glotz admits[263]
that a person who was accused but unconvicted of murder was ‘polluted,’
but he seems to think that the pollution could be privately purged or
ignored altogether. ‘Before the public _accusation_,’ one may say,
‘the slayer was not polluted.’ He was perhaps not publicly known to be
‘polluted,’ we admit. But in reality we believe that he was polluted
when the ‘victim’ died without ‘release.’ If the relatives chose to hush
the matter up, this did not destroy the real ‘pollution.’ If the matter
became known to the public, these relatives could themselves be indicted
on a charge of impiety.[264] They had broken the religious laws, the
unwritten customs, of the State. They could not righteously ‘settle’
except in the event of ‘release.’

We will now support and illustrate our views by a few quotations.
Demosthenes[265] tells us that ‘if the victim (ὁ παθών) himself releases
the slayer from guilt of blood before he (the victim) dies, it is
not lawful for the relatives to prosecute.’ This is a most important
piece of evidence, although the context in which it occurs is vitiated
by rhetorical exaggeration. It means, in effect, that in any kind of
homicide[266] the relatives of the slain were powerless in regard to
prosecution if the dying man ‘released’ his slayer and did not ‘charge’
them to avenge him. Thus even the homicide laws of a theocratic Apollo
and of centralised Greek governments depend for their operation on the
will of the victim. In such an event the slayer was not ‘polluted.’ No
impiety, no illegality was involved in ‘private settlement’ in such a
case; on the contrary, to prosecute the slayer would probably have been
impious. Not even a charge of involuntary homicide (which was possible
in the case of simple ‘forgiveness’ on the part of the dying) could be
brought against the slayer, if the victim ‘released’ him from all guilt
of blood. This decree of the dying was tantamount to a ‘release’ in law;
it did not merely reduce the charge to one of justifiable or accidental
slaying. Hence the ‘private settlement,’ which no doubt occasionally
occurred in such cases, was not so much a bribe offered to prevent
prosecution as an informal offer of material retribution—a relic of the
old-time wergeld traditions of tribal Greece.

In a speech of Lysias which is concerned with political or judicial
murder, we are told[267] that one of the condemned, named Dionysodorus,
summoned his brother and sister and brother-in-law to prison before he
died and charged them ‘and all his kindred’ (φίλοις) to punish as a
murderer Agoratus who had given the false information which led to his
condemnation. Thus we see converted into a charge of wilful murder an
act which ordinarily would have been regarded as political perjury. The
relatives of Dionysodorus actually decided to take the law into their own
hands[268]—political ferment demands such drastic action—and they would
have slain Agoratus as a criminal (κακοῦργος) if Anytus, the general,
had not persuaded them, on grounds of public policy and expediency, to
desist. The Thirty Tyrants acquitted Agoratus later, presumably because
of political prejudice. The plaintiff in this speech[269] appeals to the
Heliasts to do the pious and just thing and to condemn him to death.
Thus we see how the relatives of a slain man were directed and compelled
by the ‘charge’ of the dying. There was nothing involuntary about this
case of homicide, as some writers seem to assume.[270] It was deliberate
political murder.

Müller says[271]: ‘When a verdict of manslaughter was returned it was
allowable for the prosecutor and the accused to enter into a compromise
on the spot, if they pleased.’ He admits, however, that ‘in the regular
mode of procedure, the convict quitted his country by a certain road
and at a certain time and remained absent’ until he ‘appeased’ the
relatives of the slain, ‘whereupon he was permitted to return home under
certain prescribed forms, and, after the due performance of sacrifices
and rites of purification, he was at liberty to dwell once more in his
native land.’ The question of the ‘appeasement’ of relatives after
exile in cases of involuntary homicide will come up for discussion
later.[272] At present we are speaking of ‘compromise,’ or of ‘private
settlement,’ without exile: we may note Müller’s admission as to the
‘regular mode of procedure.’ He cites no authority for his statement
about a ‘compromise.’ Plato uniformly insists that a period of exile was
always compulsory in cases of involuntary homicide.[273] ‘Forgiveness’
on the part of the ‘dying’—as distinct from ‘release,’ which Plato has
not in mind[274]—always reduced the charge to one of manslaughter.
Hence we have argued that ‘release’ abolished all guilt and pollution.
Speaking of ‘forgiveness’ Plato says[275]: ‘If any person of his own
accord gives an absolution (ἄφεσις) to anyone for such a deed let the
purgations take place for the slayer as if the act had been involuntary
and let there be a period of one year in exile according to law (ἐν
νόμῳ).’ Speaking of general cases of manslaughter, he says[276]: ‘If
anyone kills involuntarily a freeborn person, let him be purified
with the same purgations as he who has killed a slave and let him not
dishonour a certain ancient legend ... hence the slayer must withdraw
(into exile) ... for all the seasons of a single year.’ The legend which
Plato mentions is suggestive: ‘A freeman slain by violence was,’ he says,
‘angry with his murderer while his death was still recent ... and seeing
his slayer roaming about in the places which he himself frequented (when
alive) shuddered at the thought and, sore distressed, harasses with all
his might the slayer and his movements, using memory as an ally in the
task.’ Here we can plainly detect that minor local ‘pollution’ which was
caused by the temporary resentment of the slain, and such ‘pollution’
could only be removed by a period of exile. There is a difference, then,
between ‘release’ and ‘forgiveness.’ In the latter case the slayer was
still ‘polluted’: the ghost has absorbed the anger of the gods which
is caused by the shedding of blood. Hence we think that the relatives
were not free, in such a case, to ‘compound’ with the slayer except at
the risk of incurring the anger of the dead and of the gods. We agree
with Müller’s statement regarding Plato[277]—namely, that his ‘scheme of
criminal law is in the main based on the same principles as the Attic
code.’ But in his theory of the legality of ‘private settlement’ in cases
of manslaughter Müller seems to have omitted to notice these passages
which we quoted from Plato. He was probably influenced, in his judgment,
by one or two passages in Demosthenes which are obviously rhetorical and
which we shall presently discuss.[278]

Glotz also attaches considerable importance to such Demosthenic passages,
forgetting that they are not legal documents and that they are, moreover,
inconsistent with other passages from the same author. Glotz is anxious
to establish the theory that wergeld was abolished in Athens not by
Dracon, as is generally held, but by Solon, who sought to exalt the
power of the State and to weaken the influence of the clans. To arrive
at this conclusion, Glotz boldly assumes that a certain clause in a
Draconian law, namely that which forbade the acceptance of ‘ransom’ from
a murderer found in his home-land after conviction, was not inscribed by
Dracon but by Solon.[279] Our opinion is that neither Dracon nor Solon
abolished wergeld, but that it had been already rendered sacrilegious by
the Apolline doctrine of pollution in the seventh century B.C. The laws
of Dracon do not anywhere mention real wergeld—they simply assume that
such a system was obsolete. But the phrase μηδ’ ἀποινᾶν in the Draconian
law,[280] which is usually but quite erroneously connected with wergeld,
suggests, if it does not prove, what Glotz would not apply to the period
of Dracon or of Solon—namely, the fact that ‘private settlement’ was
illegal. Why should a law forbid the ‘ransom’ of a murderer’s life
after conviction if it permitted such a ‘ransom’ before conviction?
Leaving aside religious considerations, which we, however, believe to be
essential to the matter, and viewing the question from the standpoint of
Glotz’s own pet hypothesis as to the exaltation of State power,[281] we
believe that the opposite procedure would have been more logical—that a
State would more naturally have prohibited ‘ransom’ before conviction,
but permitted it afterwards, when the property of the slayer had found
its way into the coffers of the State, and when the State had extracted
all that it could possibly extract from the unfortunate slayer! But,
as a matter of fact, the ‘ransom’ which is prohibited by this law of
Dracon was not a real ‘ransom’ of the slayer’s life in the legal sense.
It refers only to a slayer caught ‘en rupture de ban.’ It was merely a
bribe which the slayer would be disposed to offer to any citizen whom he
encountered in order to be allowed to escape from forbidden territory.
His life was still forfeit if he returned again, or even if he did not
succeed in escaping after he had bribed, say, one citizen, out of the
total number of citizens in the State. The law says: ‘It shall be lawful
to kill murderers (found) in our territory ... but not to amerce them.’
The penalty for ‘amercement’ was ‘double the amount extorted.’ To our
mind the law suggests the illegality of ‘private settlement’ rather
than the abolition of wergeld! Glotz, moreover, seems to ignore the
Demosthenic references to a γραφὴ ἀσεβείας, an indictment for impiety,
which could be brought against the relatives of a slain person if they
did not prosecute the slayer. We need not dwell upon the importance of
a γραφὴ in Attic law. It denoted a most important species of public
accusation, similar to our modern indictments or impeachments. Human
nature being what it is, and Greek human nature being what it was,
can we conceive that a Greek would have omitted to propose a ‘private
settlement’ if it had been legal for him to do so, as an option for
prosecution? Can we conceive that prosecutions for homicide would ever
have occurred if such an option would have freed the relatives of
the slain from liability to a charge of impiety which involved their
banishment and the confiscation of their property? We must then rather
assume that the guilt of impiety would have been still incurred if the
relatives of the slain accepted ‘settlement’ and failed to prosecute.

Glotz makes no reference to the γραφὴ ἀσεβείας. We agree with him[282]
that there was no γραφὴ φόνου in Attic law, but we do not understand
why he should credit Solon with the institution of γραφαί for ὕβρις and
κάκωσις, but omit to mention ἀσέβεια. The indictment for impiety, which
we attribute to Solon,[283] is incompatible with ‘private settlement’
for homicide, which Glotz believes to have been legal in the days of
Demosthenes as in those of Solon. Let us see what Demosthenes has to say
of this indictment.

In his speech against Androtion[284] a certain Diodorus says of
Androtion: ‘He accused me of a deed which anyone who was not of his
type would have been afraid to mention, namely, of slaying my own
father: he prepared an indictment of impiety[285] not against me, but
against my uncle, impeaching him for impiety in associating with one
who, as alleged, had committed this crime; he put him on trial, and
if he happened[286] to be found guilty—what man would have suffered a
more cruel fate than I would at this man’s hands? What citizen (φίλος)
or stranger would have ever consented to associate with me? What city
(_i.e._ State) would have tolerated within its precincts a man who
appeared to have perpetrated such an impious deed? None whatever.’ It is
noteworthy that the indictment, which is here referred to, was brought,
not against the alleged parricide, but against his uncle. The reason is
not, as Glotz would maintain,[287] that parricide was not a crime in
historical Athens, but that direct prosecution of homicides was limited,
by a legal technicality, based on immemorial custom, to the relatives of
the slain. If Glotz’s theory of unrestrained ‘private settlement’[288]
is assumed, what a glorious hunting-ground for unscrupulous blackmailers
must Athens have been! We can conceive Diodorus’ uncle approaching
Diodorus with his hand outstretched and crying ‘Your money or your
life’! We can also conceive any outsider—there is no limit to the
number—approaching the uncle of Diodorus equally determined to ‘settle’
the indictment for impiety! This is much too absurd for reality, even
in a modern State, not to speak of the ancient city with its ubiquitous
gods and ghosts and scruples! This passage explains, incidentally, an
episode in the _Euthyphro_ of Plato.[289] Euthyphro proposes to accuse
his father of homicide, since a poor freeman in his employment at Naxos,
whom his father had put in chains and cast by the wayside to await the
decision of the Exegetae regarding the slaying of a slave by his freeman
employee, had died of hunger and neglect. Socrates asks if Euthyphro is
a relative of the freeman. Euthyphro says that he is not, but that he is
‘polluted’ by associating with his father who is a murderer, and that he
is therefore bound to prosecute him. Plato, as we have said, is probably
here posing a problem which the Attic legal mind would have found it
difficult to solve. But the atmosphere of the dialogue is very far
removed from that of ‘private settlement’ for homicide.

That the action of Euthyphro was from one point of view impious
(ἀνόσιος), which is to say of doubtful legality, is suggested by another
passage in Demosthenes.[290] A nurse in the employment of the plaintiff
died as a result of rough treatment at the hands of two men who came to
his house to distrain his goods and chattels. The plaintiff tells how
he went to the Interpreters to ask their advice. The Interpreters said
that the only course which was open to him in law was ‘to carry a spear
in front of the funeral procession, and at the tomb to publicly inquire
(προαγορεύειν) if the woman had any relative, and to watch the tomb for
three days’! ‘For the woman,’ they said, ‘was not akin to you, nor even
a slave of yours ... and it is to relatives and “masters” that the law
assigns the duty of prosecution.’ The plaintiff then looked at a copy
of Dracon’s laws and consulted his friends, and taking into account the
fact that he was not a personal witness of the assault and could not find
any witnesses that would weigh with a court, he obeyed the Interpreters,
and refrained from further action. The Draconian law required, we are
told, that in taking the oath in a murder charge the accuser had to
state definitely in the court in what relationship he stood to deceased
or whether the deceased was his slave. This technical legal condition,
the demands of this legal formula, could not be complied with by the
plaintiff. Hence it is doubtful if Euthyphro could have complied with
them, unless, perhaps, he regarded himself as a kind of ‘master’ in
relation to the deceased freeman.

But the indictment for impiety was based on the religious doctrine of
pollution rather than on clan-technicalities connected with funerals and
burial and obsolete wergeld agreements. It is an instance of unsolved
conflict between these two systems which we find in the _Euthyphro_ and
in the speech _against Androtion_—a conflict which was in other respects
mitigated by the compromise we have described[291] in historical Greek
homicide law. The indictment for impiety could be brought by any citizen
against the relatives of a murdered man, if they failed to prosecute,
and if the dying man had not given a ‘release.’ If such failure to
prosecute was impious, then surely a ‘private settlement’ which prevented
prosecution was also impious.

We will now examine two passages—one from Demosthenes, the other
from Aristophanes—which Glotz quotes in support of his theory of the
legality of ‘private settlement.’ Glotz’s theory is clearly stated in
these words[292]: ‘Il est improbable que la réconciliation ait été
explicitement interdite et le silence de la loi valait une permission.
Par autorisation formelle ou par tolérance, ouvertement ou tacitement
l’Etat devait consacrer dans tous les cas le privilège de la famille.’
The only thing, in Glotz’s view, that would have forced a ‘recourse to
the State’ was the absence of unanimity in the relatives concerning the
amount for which they would ‘settle.’ One dissentient voice compelled a
recourse to prosecution.[293]

In the speech of Demosthenes _against Theocrines_[294] we read that a
certain Theocrines whose brother had been murdered threatened to bring
Demochares, the alleged murderer, before the Areopagus, unless he paid
him a sum of money. The money was paid, and that was the end of it! The
relevant passage reads: ‘Not very long after his dismissal, his brother
was slain by violence. Mark how he behaved! He made inquiries as to
the murderers, and having discovered who they were, he accepted a sum
of money and abandoned further proceedings. He went round threatening
to bring Demochares before the Areopagus until he “compounded” with
the guilty parties. What an honest and trustworthy man!’ Philippi’s
conclusion[295] that the action of Theocrines was illegal does not
convince Glotz, who inquires[296]: ‘Qu’est-ce donc qui retient Démosthène
de flétrir un tel pacte comme illicite?’ But it is quite obvious that
the action of Theocrines is presented by Demosthenes as unusual and
disgraceful. The object of Demosthenes, in the speech, is to emphasise
the mercenary character of Theocrines. He is more concerned with this
aspect of Theocrines’ action than with its legality or illegality. We
may therefore answer Glotz’s question by asking another: ‘If this action
was legal, why does Demosthenes refer to it as a disgrace?’ Or, again:
‘Could an act be described as illegal which was not expressly prohibited
by law?’ Glotz in seeking to prove that ‘private settlement’ was legal
infers that it was legal because it is not here declared illegal! This
argument seems to us invalid. Demosthenes wrote speeches for private
and public litigants. Sometimes he emphasised one point, sometimes the
opposite point. He does not wish to stultify himself unnecessarily. He is
not a self-constituted legislator, as Plato, in his ideal world, was. He
leaves the legal decision to the jury and aims merely at a victory in the
suit. Moreover, we must point out, in Attic law there was a Statute of
Limitations. If Theocrines kept his secret to himself, and if he had no
religious scruples about the matter, he could, after a number of years,
have divulged it with impunity. But Demosthenes speaks as if the whole
action only took twenty-four hours! This may be excellent rhetorical
skill, but it may also involve a complete distortion of facts. We admit,
of course, that ‘private settlements’ for homicide did occasionally take
place in historical Athens, as they do in modern States. The actuality
of such a settlement may perhaps be inferred from this speech of
Demosthenes, but certainly not the legality of it.

The second text which Glotz adduces in support of his theory is a passage
from the _Frogs_ of Aristophanes,[297] in which Euripides criticises
as a redundant expression the following Aeschylean verse[298] which
describes the return of Orestes to Argos after his sojourn as an exile in
Phocis:

    ἥκω γὰρ ἐς γῆν τήνδε καὶ κατέρχομαι.

Aeschylus, in reply, denies that there is any redundancy in the verse,
asserting that there is a very real difference between the home-coming
of a citizen and that of an exile. Euripides, changing his ground,
attacks the application of the verb κατέρχομαι (‘I return from exile’)
to Orestes, because, he says, Orestes came home secretly, without
having duly ‘appeased’ by gifts those who were competent to permit his
return.[299]

It does not, says Glotz,[300] occur to Euripides to say that no
‘appeasement’ was possible in the case of Orestes; and since, in the
eyes of Aristophanes, the deed of Orestes was regarded as wilful murder,
therefore, Glotz argues, Aristophanes may be regarded as implying in this
passage that a wilful murderer could always return to his home-land,
if he happened to be abroad, provided he paid ‘compensation’ to the
relatives of the slain!

There is a strange but very obvious error in this reasoning. Glotz has
forgotten that in the early portion of the _Choephoroe_, in which the
verse in question occurs, Orestes has not yet slain his mother! At
this stage, therefore, he was not a murder-exile at all. He was merely
a political or a quasi-political exile. Homer and later legend are
quite clear in regard to the nature of this exile. Hence, obviously,
the ‘persuasion of those in power’ in this passage has no connexion
with homicide, and is, for Glotz’s argument, irrelevant. The return of
political exiles was a common occurrence in the Greece of Aristophanes
and Euripides. The persuasion used in such cases may have consisted
merely of some kind of promise or undertaking to obey the existing
government, but it may of course occasionally have taken the form of
gifts or bribes. But the ruling power at Argos which Orestes would
have had to persuade consisted of his deadliest enemies, Clytaemnestra
and Aegisthus. He came home without their sanction and without their
knowledge; Euripides therefore is right in his opinion that Orestes
did not come home by permission of the Argive ‘government.’ The verb
κατέρχομαι, which normally implies a formal and ‘recognised’ return, has
not therefore here its normal meaning. Aeschylus is therefore technically
in error in his use of this word, but he is right in maintaining that
there is no verbal redundancy in the verse.

Apart from the irrelevance of this quotation, as an argument for the
legality of ‘private settlement,’ we may point out that we have no reason
for believing, as Glotz believes, that Aristophanes regarded Orestes
as a wilful murderer. Aeschylus in the _Eumenides_ makes the Erinnyes
say so,[301] but their viewpoint is shown to be mistaken by an Athenian
Court. Euripides also was aware that not only Homer but several Attic
legends conceived Orestes as very different from a murderer.[302] In
spite of the variety and the confusion which characterised the Oresteian
legends, Aristophanes, Euripides and Aeschylus were probably well aware
that the Homeric and legendary accounts of the exile of Orestes at Athens
or at Phocis had no connexion with the penalty for homicide. We can only
say of Glotz’s reasoning here:

    Indignor quandoque bonus dormitat Homerus.

There is another passage in Demosthenes, to which Glotz seems to attach
considerable importance, but which does not in our view warrant the
conclusion which he has drawn from it. In a speech _against Nausimachus_,
in which an action for breach of trust is brought by the plaintiff
against his guardian Aristaechmus, who had, fourteen years before,
compromised the dispute by a payment of three talents, Demosthenes is
naturally led, in defence of Aristaechmus (or his son) the plaintiff, to
emphasise the dishonesty of proceeding with an action where a ‘release’
has been previously granted. Incidentally, the orator happens to refer to
‘private settlements’ for homicide in the following passage[303]: ‘This I
presume you will all acknowledge, that other people have suffered wrongs
before now, of a more grievous nature than pecuniary wrongs, for example,
unintentional homicides, profane outrages and many similar offences
are perpetrated; yet in all these cases the injured parties are finally
and conclusively barred when they have come to a settlement and given a
“release.” This rule of justice is so universally binding that when a
man has convicted another of intentional homicide and clearly proved him
to be “polluted,” yet if he afterwards condones the crime and “releases”
him he has no longer the right to force the same person into exile. Nor
again where the murdered man has released his murderer before he died,
is it lawful for any of the relatives to prosecute, but those whom the
laws sentence, upon conviction, to banishment or exile or death, if they
have been released, are by that word “release” at once absolved from all
penal consequences.’ This passage is repeated verbatim in the speech
_against Pantaenetus_.[304] Müller[305] points out that both passages
are ‘disputed’ by many scholars. He thinks that there should only be a
reference to involuntary homicide.

It is of course possible that for the word ἐκουσίου (voluntary)
Demosthenes wrote ἀκουσίου (involuntary). So Müller would emend the
passage. But, apart from such a solution, the very fact that Nausimachus
was legally entitled to sue, even after a ‘compromise’ or ‘release,’
proves that Demosthenes is rhetorical rather than logical. As the passage
stands, it is in direct conflict with the law of Dracon forbidding
‘amercement’ after conviction, a law which we have already quoted.

We are convinced that such ‘settlements’ were illegal and criminal in
cases of wilful murder. In manslaughter cases, at least one year’s exile
was necessary, with or without trial.[306] In practice some of the
relatives may have drawn up a ‘release’ immediately, and such relatives
could not perhaps take part in expelling the slayer. Our conclusions
on this question will appear more fully later.[307] We have already
referred[308] to ‘the release’ which was given by the dying as a most
important factor in Greek homicide-law. We also admit that ‘settlements’
were occasionally made, though not legally authorised, and it is clear
that such ‘settlements’ could easily be confused with the ‘appeasement’
of relatives in manslaughter cases, especially in the pleadings of an
orator.

We should contrast with this Demosthenic passage another from the speech
_against Aristocrates_,[309] in which there is reference to involuntary
homicide. ‘If,’ he says, ‘the accused be convicted and be found to have
done the deed, neither the prosecutor nor anyone else has control over
him, but the law alone. And what does the law command? That a person
convicted of involuntary homicide shall on certain stated days leave the
country by an appointed road and remain in exile until he has appeased
certain of the relatives of the slain ... above all it is right that the
laws should control everybody and everything.’

Similarly, in his speech against Meidias,[310] a judge who accepted money
in settlement of a prosecution for ‘assault’ is said to have taken no
account of the laws: and another man who ‘settled’ a case of assault is
said ‘to have bidden farewell to the laws.’

As an instance of Demosthenes’ rhetorical skill in the distortion of the
meaning of words, we may refer to a passage in the Third Philippic.[311]
The question at issue was really one of treason, not of murder. A
certain Arthmius of Zelea (in Asia), having distributed Persian gold for
political purposes at the time of the Persian invasion of Greece, was
solemnly declared ἄτιμος by the Athenian people. Now a decree of ἄτιμία
for treason involved much more severe consequences than the historical
exile penalty for murder. It was the sole historical survival of
collective and hereditary punishment, and involved not only the traitor
but also his family and all his posterity (αὐτός τε καὶ γένος).[312] In
practice, no doubt, it was but a trifling penalty to an Asiatic, like
Arthmius, who had no intention of living at Athens or in the Athenian
confederacy. But Arthmius was declared by this decree to be an outlaw
within the territory of Attica or within the Athenian Empire. If found
within this territory, he, or his descendants, could be slain with
impunity. Demosthenes, anxious to illustrate the patriotism of the
Athenians of former days, compared with that of his contemporaries, by
showing the severity with which treason was formerly punished, even in
a foreigner, has recourse to the subtle hypothesis that ἄτιμος in the
decree against Arthmius did not mean merely ‘degraded’ from civic rights
but should be linked up with a verb τεθνάτω, to form a clause which means
‘let him be slain with impunity.’ The word ἄτιμος in this decree has, he
says, the same significance as it bears in the murder-laws ‘in the case
of murderers for whom the legislator forbids a prosecution for homicide,’
where it is said ‘ἄτιμος τεθνάτω.’ It is true that the word ἄτιμος could
be used to mean ‘unpunished,’ but when the Athenians declared a person
ἄτιμος, they meant by the word ‘degraded’ not ‘unpunished.’ They declared
the person ‘dishonoured,’ or degraded from civic privileges. Moreover, in
the laws of Dracon as Demosthenes quotes them the word ἄτιμος does not
occur, and the adverb used to denote ‘with impunity’ is νηποινεί. Plato
also has ἀνατί.[313] Demosthenes, then, is quite capable of juggling with
words and with the wording of laws, in his desire to secure a rhetorical
victory. But here Demosthenes, without knowing it, weakens the very point
which he desires to emphasise. A decree of ἄτιμία for treason was much
more severe than any penalty in the Attic murder laws. A murder-exile
could be slain with impunity, as a traitor could, if found within
Athenian territory. But his descendants could not! His family could
remain securely at Athens, in full enjoyment of civic rights. If the word
ἄτιμος in the decree against Arthmius meant what Demosthenes asserts
that it meant in the murder-laws, then it is incorrect to speak of the
punishment of the traitor and his descendants (αὐτός τε καὶ γένος). Now
what does Demosthenes mean by the phrase ‘in cases where the legislator
forbids a trial for homicide’[314]? The context gives the only possible
meaning: he means, in cases where _an already convicted murderer_
returned to forbidden territory and could be slain with impunity without
trial.

We shall return to this question in our next chapter, when treating
of manslaughter in Attic law, but we may for the present conclude,
as the most probable hypothesis, that in historical Athens ‘private
settlement’ as a means of absolution from homicide guilt was sinful and
legally punishable, in all cases where the dying victim did not grant a
‘release’ and where a public prosecution was otherwise legally possible.
This hypothesis, if correct, shows that amongst the Greeks, as amongst
the Semites, wergeld was abolished by the religious doctrine of homicide
as a ‘pollution,’ as an offence against supernatural beings.

Assuming, as a result of our general reasoning in this chapter, and
for other reasons which will presently appear, that the historical
murder laws of Greece were as universal and as uniform as the Greek
purgation-rites for homicide, assuming that the novelties which they
contain, in regard to their ideals of punishment, and their insistence
on compulsory State trial, were not the creation of local legislators,
but the product of international Amphictyonies which expressed their
compacts in oracular decrees—compacts which were only gradually evolved
in a compromise between local customs or desires and a new religious
doctrine which was adopted from Asiatic peoples—we will now proceed to a
brief colligation of the Laws of Dracon concerning homicide, and after
giving such commentaries as these laws may seem to demand, we will then
review the Attic murder-courts and offer an explanation of their origin
and evolution.

FOOTNOTES

[1] Thuc. i. 12.

[2] _H. and H._ p. 259.

[3] _Op. cit._ p. 54.

[4] _Ib._ p. 255.

[5] _Op. cit._ p. 259.

[6] _E.A.G._ p. 405.

[7] P. 330.

[8] _Dorians_, vol. ii. pp. 64-6; see also Ridgeway, _op. cit._ p.
659, and Thuc. ii. 101, iv. 78, viii. 3; Demosthenes, _Phil._ ii. 71,
_Olynth._ ii. 20.

[9] _Op. cit._ ii. 71.

[10] iv. 126.

[11] _E.g._ Holm, _H.G._ i. 175; Gilbert, _G.C.A._ p. 4; Herod. v. 72,
vi. 51.

[12] Pausanias, iii. 22. 7.

[13] Müller, _op. cit._ ii. 18-23.

[14] Athenaeus, vi. 265; Müller, _op. cit._ p. 31.

[15] Müller, _op. cit._ ii. 54-8.

[16] _Op. cit._ p. 334.

[17] _Ib._ p. 250.

[18] Leaf, p. 315; Müller, _Dorians_, ii. 71.

[19] _Op. cit._ p. 259.

[20] _Op. cit._ vol. ii. p. 18.

[21] _H.G._ i. 180.

[22] _H.G._ vol. ii. chap. 6, p. 262.

[23] _Op. cit._ pp. 10, 40.

[24] _Anab._ iv. 8. 25; _infra_, p. 173.

[25] See Aristotle, _Politics_, 1271 b 22; Strabo, x. 481.

[26] _E.A.G._ p. 629.

[27] _Op. cit._ p. 339.

[28] _Dorians_, ii. 65.

[29] P. 52.

[30] _H.G._ p. 161.

[31] _Life of Philip_, p. 30.

[32] i. 2 (Jowett).

[33] i. 6.

[34] i. 12.

[35] _Op. cit._ p. 225 ff.

[36] _Works and Days_, 182-193; _supra_, p. 122.

[37] _Op. cit._ p. 228.

[38] See also Coulanges, _op. cit._ p. 336 ff.

[39] Pp. 325-327.

[40] P. 397.

[41] i. 12.

[42] _Op. cit._ pp. 171-2.

[43] _i.e._ apart from the Erechtheum (i. 26).

[44] Coulanges, pp. 171-2.

[45] P. 173.

[46] _Theseus_, 24.

[47] ii. 15.

[48] _Dorians_, i. p. 256.

[49] _Op. cit._ p. 332.

[50] _Op. cit._ p. 169.

[51] See, further, article _J.H.S._ xl. Part ii. p. 202, and Pollux,
viii. 109-111.

[52] _Op. cit._ pp. 320 ff.

[53] _Ib._ p. 331.

[54] _Ib._ p. 338.

[55] _Ib._ pp. 345-6.

[56] _Ib._ p. 365.

[57] _Ib._ p. 369.

[58] _Op. cit._ p. 373.

[59] _Ib._ p. 354.

[60] See _infra_, Bk. II. ch. iii.

[61] See also Gilbert, _G.C.A._ (Eng. trans.), p. 350.

[62] Glotz, _op. cit._ p. 328.

[63] Coulanges, _op. cit._ p. 158; _supra_, p. 88.

[64] See Pollux, viii. 111.

[65] _Social Life in Greece_, pp. 16-18.

[66] _Greek Civilization_, p. 32.

[67] _Ib._ p. 41.

[68] Hall, _History of Near East_, p. 47.

[69] _H.G._ p. 77.

[70] _Op. cit._ p. 78.

[71] _Op. cit._ p. 113.

[72] _Ib._ p. 114.

[73] See Glotz, _op. cit._ pp. 231 ff.; Kinkel, _Epic. gr. fragm._ i. p.
33.

[74] i. 35.

[75] _Infra_, p. 151.

[76] _Supra_, p. 118.

[77] Cicero, _Top._ 17; Müller, _Eum._ p. 107.

[78] _Genesis_ ix. 6; _Numbers_ xxxv. 11-34.

[79] _I.e._ without intent to kill.

[80] _Exodus_ xxi. 12.

[81] _I.e._ if one slays by accident.

[82] _Exodus_ xxi. 12.

[83] _Numbers_ xxxv.; _cf._ _Deuter._ iv. 41, _Joshua_ xx. 1-9.

[84] _Op. cit._ p. 153.

[85] ii. 102 (Jowett).

[86] _Genesis_ iv. 11-15.

[87] _Laws_, ix. ch. 12.

[88] _Supra_, p. 110.

[89] ii. 2. 3.

[90] _Proleg._ p. 221.

[91] _Il._ vi. 155-205.

[92] Müller, _Eum._ p. 92; Smith, _Dict. Gk. Ant._ s.v. φόνος.

[93] _Op. cit._ p. 314.

[94] _Infra_, p. 173 ff.

[95] Dem. _in Aristoc._ 632, 634.

[96] _Op. cit._ p. 218; _infra_, p. 166.

[97] _Supra_, p. 122 ff.

[98] See _infra_, ch. ii.

[99] See _infra_, p. 181, and Dem. _in Androtion._ 593.

[100] Dem. _c. Pantaen._ 893, 59; _infra_, p. 176 ff.

[101] Lysias, _c. Agor._ 41, 78.

[102] 1-6.

[103] 5E.

[104] e.g. _Rep._ ii. 379D-383.

[105] _Laws_, ix. ch. 11.

[106] _Laws_, ix. ch. 9.

[107] Aesch. _Eum._ 886.

[108] _Ib._ 655, 660.

[109] P. 155; Dinarchus, 47; Antiphon _de Caed. H._ 11; Pausan. i. 28. 6.

[110] _Supra_, p. 112 ff.

[111] Aesch. _Eum._ 283.

[112] Eur. _Iph. T._ 1224.

[113] i. 24.

[114] i. 35.

[115] 255 ff.

[116] 470-485 (trans. L. Campbell).

[117] _sc._ vessel.

[118] 107.

[119] _Supra_, p. 148; Glotz, _op. cit._ p. 155.

[120] _Laws_, ix. ch. 8.

[121] But see _infra_, p. 153 ff.

[122] 1175-1230.

[123] Apollod. ii. 2. 3.

[124] i. 35.

[125] Aristotle, _Ath. Pol._ ch. 1.

[126] _Dorians_, i. 227-8.

[127] _Iph. Taur._ 1175 ff.

[128] _Eum._ 235-245, and 447-9.

[129] _e.g._ ix. ch. 12.

[130] _Eum._ 581.

[131] See Dem. _in Androtion._ 593, 26; and Plato, _Laws_, ix. ch. 12.

[132] _Eum._ 448.

[133] For the Attic Court Phreatto see _infra_, ch. iii.

[134] _Eum._ 451 ff.

[135] 470-485.

[136] See _supra_, p. 151.

[137] 840 ff.

[138] _Eum._ p. 136.

[139] _Areop._ p. 63.

[140] See Plato, _Laws_, ix. ch. 8.

[141] _Supra_, pp. 113 and 119 ff.

[142] _Infra_, p. 173 ff.

[143] _Il._ ix. 404.

[144] _Il._ ii. 520; Müller, _Dorians_, i. 226-232.

[145] 1-10; see also Pausanias, x. 5.

[146] _Cf._ Aesch. _Eum._ 18.

[147] x. 5.

[148] Harrison, _Themis_, pp. 396-429.

[149] See James, _Varieties of Religious Experience_, p. 387 ff.

[150] Euripides, _Ion_, 226 ff.

[151] _Ibid._ 225.

[152] _Eum._ 95-200.

[153] Ael. _Var. Hist._ iii. 1; Plut. _Q. Gr._ xii.

[154] Aeschylus, _Eum._ 440.

[155] _Dorians_, i. 297 ff.

[156] _Il._ ii. 517; ix. 405.

[157] See Bury, _H.G._ p. 361.

[158] _Op. cit._ p. 157.

[159] _Op. cit._ p. 695.

[160] Coulanges, _op. cit._ p. 279; Müller, _Dorians_, i. 258, 270, 272-9.

[161] Müller, _op. cit._ p. 232; and Euripides, _Ion_, 1111, 1220, 1256
there quoted.

[162] _Cf._ Plato, _Laws_, ix. ch. 11, _re_ kin-slaying: ‘let the judges
of these matters be the same as those to whom has been given the power of
deciding upon sacrilege.’

[163] Müller, i. 263-5.

[164] Bury, _op. cit._ p. 159.

[165] Law of Dracon, Dem. _in Arist._ 632.

[166] _Cf._ Coulanges, p. 279.

[167] Thuc. ii. 102.

[168] Her. vii. 197.

[169] _s.v._ ἐξηγηταί.

[170] _Laws_, vi. ch. 7.

[171] 1-6.

[172] _Ancient City_, p. 252.

[173] Xenophon, _Anabasis_, iv. 8. 25; see _infra_, p. 173.

[174] Arist. _Ath. Pol._ 7. 1.

[175] Plutarch, _Solon_, 17.

[176] _Op. cit._ p. 252.

[177] _Laws_, ix. ch. 12.

[178] See Aeschylus, _Agam._ 1557.

[179] _Supra_, p. 47 ff.

[180] See article, _s.v._ φόνος, in Daremberg and Saglio, p. 440.

[181] _Laws_, ix. ch. 12.

[182] See _infra_, pp. 229, 236 ff.

[183] See _infra_, ch. ii.

[184] Bk. ix. ch. 12.

[185] See Demosthenes _in Aristoc._ 637.

[186] See _Laws_, ix. ch. 8.

[187] ὁ ἐκ Δελφῶν κομισθεὶς νόμος ἤγουν χρησμὸς ἐπὶ τοῦ ἄκοντος ἀνέλοντος
τὸν φὶλον. ἔκτεινας σὸν ἑταῖρον ἀμύνων, οὐ σε μιαίνει αἷμα, φόνου δὲ
πέλεις καθαρώτερος ἢ πάρος ἦσθα ... ὁ ἀνδρὶ φιλῷ θνήσκοντι πάρων πέλας
οὐκ ἐπάμυνας, ἤλυθες οὐ καθαρός.

[188] Pausanias, i. 28. 10.

[189] _Supra_, p. 157.

[190] _In Aristoc._ 632.

[191] _Supra_, p. 145.

[192] _In Aristoc._ 632-634.

[193] _Infra_, p. 164 ff.

[194] See _supra_, p. 142 ff.

[195] _Op. cit._ p. 218.

[196] _Laws_, ix. ch. 8.

[197] _Ib._ ch. 11.

[198] _Ib._ ch. 8.

[199] τῆς χώρας τῆς τῶν νόμων τῶνδε κυρίας.

[200] Dem. _in Aristoc._ 647-8.

[201] _Loc. cit._

[202] _Supra_, p. 145.

[203] _Op. cit._ p. 218.

[204] _Ib._ p. 214.

[205] vii. 238.

[206] viii. 114.

[207] ix. 64.

[208] i. 156, 157.

[209] _Op. cit._ p. 214.

[210] _Pyth._ ii. 32.

[211] _Eum._ 444.

[212] See note, _Eum._ _ad loc._

[213] See edition of _Eumenides_, p. 78.

[214] _Supra_, pp. 21, 65.

[215] _Supra_, p. 142.

[216] _Laws_, ix. ch. 12.

[217] Schol. ad _Eum._ 444.

[218] 580 ff.

[219] _Infra_, Bk. III.

[220] _Laws_, ix. ch. 9.

[221] Müller, _Eum._ p. 141.

[222] _Supra_, p. 158.

[223] 612-616.

[224] 618-622.

[225] 32 ff.

[226] _Infra_, p. 348 ff.

[227] 600 ff.

[228] Sophocles, _Oed. Rex_, 95 ff.

[229] _Infra_, p. 173.

[230] _Infra_, p. 311. We do not attach any legal importance to Oedipus’
reference to _parricide_ (1441). It would have ruined the dramatic plot
if this word were mentioned earlier in the play.

[231] _Od._ xi. 271 ff.

[232] See _Oed. Rex_, 805 ff.

[233] _Oed. Rex_, 1438.

[234] _Infra_, Bk. III. ch. ii.

[235] Soph. _Oed. Col._ 600, 770.

[236] See _Phoenissae_, 60 ff., 1626; _infra_, p. 382.

[237] 1640 ff.

[238] 1245 ff.

[239] 1330 ff.

[240] 1155 ff.

[241] _Supra_, p. 139.

[242] 495.

[243] 1010 ff.

[244] 1282 ff.

[245] _Supra_, pp. 130, 158.

[246] _Anabasis_, iv. 8. 25.

[247] _Laws_, ix. ch. 8.

[248] _Ib._ ch. 9.

[249] _Supra_, p. 12.

[250] See Müller, _Dorians_, i. 227.

[251] _Areopag._, pp. 148-9.

[252] _Op. cit._ p. 314 ff.

[253] _Eum._ p. 123; _supra_, p. 112.

[254] _Eum._ p. 92.

[255] For conclusion see p. 213.

[256] _Supra_, p. 143 ff.

[257] See Lysias _c. Agor._ 40-42.

[258] See 94 ff., 117 ff., 179 ff.

[259] See Plato, _Laws_, ix. ch. 8, for greater and lesser purifications.

[260] _Op. cit._ pp. 237-8.

[261] _Ib._ p. 314 ff.

[262] See Plato, _Laws_, ix. ch. 11 and ch. 12; Pollux, viii. 90; Arist.
_Ath. Pol._ 57.

[263] P. 428.

[264] See _infra_, p. 181 ff.

[265] _C. Pantaen._ 983, 20; also _c. Nausimachum_, 991.

[266] Müller (_Eum._ p. 92) thinks this refers to manslaughter only.

[267] _C. Agor._ 40-42.

[268] _Ib._ 78.

[269] _Ib._ 96-7.

[270] Smith, _Dict. Gk. Ant. s.v._ φόνος, vol. ii. p. 385.

[271] _Eum._ p. 92.

[272] _Infra_, p. 205; see also p. 198.

[273] _Infra_, p. 210.

[274] We interpret the Greek words ἄφεσις and ἀφίημι as implying
‘release’ when blood-guilt is entirely remitted, as in the Demosthenic
passages cited on page 176. Plato, however, obviously applies the terms
to ‘partial release’ or forgiveness.

[275] _Laws_, ix. ch. 9.

[276] _Ibid._ ch. 8.

[277] _Eum._ p. 93.

[278] _Infra_, p. 186 ff.

[279] _Op. cit._ pp. 319-321, 363-364, p. 377.

[280] Dem. _in Aristoc._ 629-630; see also _infra_, p. 222.

[281] See _op. cit._ pp. 377-8.

[282] _Op. cit._ p. 373.

[283] Plutarch, _Solon_, 18.

[284] 593.

[285] ἀσεβείας γραφήν.

[286] συνέβη.

[287] _Op. cit._ p. 322.

[288] _Ib._ pp. 314, 324, 372.

[289] 1-6, especially see 5 E.

[290] _C. Euerg. et Mnesib._ 1161.

[291] _Supra_, p. 143 ff.

[292] _Op. cit._ p. 314.

[293] _Ib._ p. 324.

[294] 1331 (Reiske).

[295] _Areop._ pp. 148-9.

[296] _Op. cit._ p. 315.

[297] 1154-1166.

[298] _Choeph._ 3.

[299] λάθρα γὰρ ἦλθεν, οὐ πιθὼν τοὺς κυρίους.

[300] _Op. cit._ p. 315.

[301] _Eum._ 317, 428, 496, 656 ff.

[302] _Infra_, p. 340 ff.

[303] 991. _Cf._ also _c. Pantaen._ 983.

[304] 983 (Reiske).

[305] _Eum._ p. 92.

[306] _Infra_, p. 213.

[307] See _infra_, p. 212 ff.

[308] _Supra_, pp. 146, 178.

[309] 63 ff.

[310] 526-7.

[311] iii. 44.

[312] Glotz, _op. cit._ p. 465 ff.; Dem. _in Arist._ 640.

[313] _Laws_, ix. 871E.

[314] ὑπὲρ ὧν μὴ διδῷ φόνου δικασάσθαι.

CHAPTER II

THE DRACONIAN CODE

    Restored inscription of 409-8 B.C. and author’s explanation:
    other Draconian homicide-laws derived from Demosthenes: Plato’s
    code confirms and supplements these data: classification
    of Attic homicide laws as follows: (_a_) those relating to
    accidental homicide, to death caused by animals or inanimate
    objects; and to homicide by persons unknown: (_b_) those
    relating to justifiable and to justifiably accidental homicide:
    (_c_) those relating to manslaughter: (_d_) those relating to
    wilful murder: some problems suggested by these laws: origin
    of confiscation of property: evolution of State-execution:
    parricide and kin-slaying: historicity of Plato’s legislation
    regarding homicide.

The only direct source of evidence which we possess for the historical
murder-laws of Attica—for the murder-laws of other Greek States we have
no direct evidence at all—is a fragmentary inscription of the year
409-8 B.C., containing a few lines written in the old Attic alphabet,
which, though ‘restored’ in a manner sufficiently satisfactory to
render it trustworthy and intelligible, gives us nevertheless the most
rudimentary information about the Attic murder-code. The real value of
this inscription has been indicated by Lipsius.[1] The fragments of
laws which are found on the inscription are so closely identical with
the corresponding portions of the Draconian laws as they are cited
by Demosthenes that they must, he says, be regarded as furnishing a
convincing proof of the validity of the remaining laws which Demosthenes
has cited. Now, these remaining laws are written in the Ionic alphabet,
which was used by Athenian writers in the fourth century and in the
latter half of the fifth century B.C., and it so happens that the date
of the change in the alphabet used in Attic inscriptions, namely, the
year 403-2 B.C., was also the date of what Glotz[2] describes as ‘la
grande révision législative qui signala l’archontat d’Euclide.’ If, then,
any changes occurred in Attic murder-law, in the period which elapsed
between Dracon and Eucleides, it was probably in the year 403-2 B.C.
that such changes were finally incorporated in the written code. We
shall see that there is no reference to the Areopagus in our fragment,
but it may of course have been mentioned in the missing portion of the
inscription which referred to wilful murder. Pollux and Plutarch[3]
state that the Areopagus was created by Solon. We shall see later[4]
what elements of truth this dictum may contain. The only change which
we believe to have been made in the period from Dracon to Eucleides was
the isolation of the Areopagus from the general list of the Ephetae
courts.[4] This change we attribute to Solon, and with this exception we
accept the murder-laws which are quoted by Demosthenes as the original
code of Dracon. We have already[5] argued against the theory of Glotz
that the clause μηδ’ ἀποινᾶν was a Solonian innovation. The alteration
which we attribute to Solon was not properly speaking a change in the
murder-code, but merely a change in the distribution of pleas in the
judicial system. Hence we accept the ancient tradition[6] that ‘Solon
changed all the laws of Dracon except those relating to homicide.’ The
Solonian legislation was less severe and more humane than Dracon’s code.
If Solon did not alter the murder-laws, it was probably because they
were, so to speak, so non-Draconian, because they did not bear the stamp
of Dracon’s own peculiar genius. They were, we have said,[7] an eclectic
codification of the unwritten laws of the Ephetae and the Exegetae.
Religiously consecrated by their joint tribal and Apolline inspiration,
they stood above the gales of Athenian political ferment. It was only
in the personnel of the judicial system that a loophole was left open
for political intrigue. In this respect alone was alteration easy and
obvious: and in this respect alone do we suppose that alterations took
place.

The original inscription of 409-8 B.C. consists of forty-eight lines, of
which six are undecipherable, and nine others badly mutilated. We will
give here just four of the best lines, from which the condition of the
remainder may be inferred.

    11.               και εαμ . εκ . ρονο..ς .τ.... ... .... ....... .ι
    12. καζεν δε τος βασιλεας αιτ . ο . φο... ε... ... ........ .. ...λ
    13. ευσαντα τος δ. εφετας διαγν....  ........ ....   ...   .....  ε
    14. ι ε αδελφο. ε Ηυες Ηαπα.... ε το . .ο...... ..... ... ..  .. .υ

The most important portion of the inscription, as restored by Köhler, is
given by Dareste,[8] and transliterated into the Ionic alphabet reads as
follows:

    11. καὶ ἐὰμ μ’ ἐκ προνοίας κτείνῃ τίς τινα, φεύγειν, δι-
    12. κάζειν δὲ τοὺς βασιλέας αἰτιῶν φόνου ἢ ἐάν τις αἰτιᾶται ὡς βουλ-
    13. εύσαντα, τοὺς δὲ ἐφέτας διαγνῶναι, αἰδέσασθαι δ’ ἐὰμ μὲν πατὴρ ἦ-
    14. ι ἢ ἀδελφὸς ἢ ὑῆς ἁπάντας ἢ τὸν κωλύοντα κρατεῖν. ἐὰν δὲ μὴ οὗ-
    15. τοι ὦσι, μέχρ’ ἀνεψιότητος καὶ ἀνεψίου, ἐὰν ἅπαντες αἰδέσασ-
    16. θαι ἐθέλωσι τὸν ὅρκον ὁμόσαντας. ἐὰν δὲ τούτων μηδεὶς ᾖ, κτεί-
    17. νῃ δὲ ἄκων, γνῶσι δὲ οἱ πεντήκοντα καὶ εἷς οἱ ἐφέται ἄκοντα
    18. κτεῖναι, ἐσέσθων δὲ οἱ φράτερες, ἐὰν ἐθέλωσι, δέκα, τούτους δὲ ο-
    19. ἱ πεντήκοντα καὶ εἷς ἀριστίνδην αἱρείσθων. καὶ οἱ πρότερ-
    20. ον κτείναντες ἐν τῷδε τῷ θεσμῷ ἐνεχέσθων .........
    26. .. ........................ ἐὰν δέ τις τ-
    27. ὸν ἀνδρόφονον κτείνῃ ἢ αἴτιος ᾖ φόνου ἀπεχόμενον ἀγορᾶς ἐφο-
    28. ρίας καὶ ἄθλων καὶ ἱερῶν Ἀμφικτυονικῶν ὧσπερ τὸν Ἀθηναῖον κ-
    29. τείναντα ἐν τοῖς αὐτοῖς ἐνέχεσθαι, διαγιγνώσκειν δὲ τοὺς Ἐφέτας.
    30. τοὺς δὲ ἀνδροφόνους ἐξεῖναι ἀποκτείνειν καὶ ἀπάγειν ἐν τῆι ἡμεδ-
    31. απῆι, λυμαίνεσθαι δὲ μὴ, μηδ’ ἀποινᾶν ἢ διπλοῦν ὀφείλειν ὅσον ἂν κ-
    32. αταβλάψηι ..............................
    37. ..... ἐὰν δέ τις φέροντα ἢ ἄγοντα βίᾳ ἀδίκως εὐθὺς ἀμυνόμενο-
    38. ς κτείνηι, νηποινεὶ τεθνάναι.[9]

This inscription has been restored, mainly, from quotations in the
speeches of Demosthenes. But before attempting to translate it, we must
point out that even in its restored form the inscription is archaic and
obscure, and the meaning is not always certain. The first half of the
inscription seems to refer to involuntary or accidental homicide. But the
end of the second line, as it stands, cannot possibly be taken to refer
to accidental homicide, because the verb βουλεύειν usually means ‘to
plot’ or ‘to resolve,’ and therefore implies an element of deliberation.
Wilful murder is not expressly mentioned, save in so far as the slaying
of a homicide exile abroad is decreed to be equivalent to murder. There
is also a reference to justifiable homicide in self-defence. But most
of the fragment consists of an enumeration of the persons who are by
law entitled to share in the acceptance of gifts of ‘appeasement’ from
an involuntary slayer: and of the judges by whom the various kinds of
homicide must be decided. We do not believe that any judicial distinction
is intended in the use of the two verbs δικάζειν and διαγιγνώσκειν.
Both words mean, we think, ‘to adjudicate.’ There is no question of
preliminary investigation as distinct from final decision. In regard to
the second line, the restoration ὡς βουλεύσαντα can only mean ‘on the
ground of having plotted (to kill).’ Did the restorer mean by this clause
‘attempting murder’ (when death did not ensue) or ‘contriving murder’
(when death did ensue)? The noun βούλευσις can have both these meanings,
but the verb βουλεύειν cannot, we think, denote attempts to kill. If the
restorer meant ‘contriving murder,’ such an interpretation is open to the
following objections: (1) ‘contriving murder’ ranked with wilful murder
in Attic law, and was tried by the Areopagus, not by the Ephetae[10]: (2)
it is rightly maintained[11] that the presence of καί at the beginning of
the inscription indicates that a portion is missing, and it is natural
to assume that this missing portion contained the law relating to the
graver kinds of homicide, including not only wilful murder, but also
contriving murder. In order to obviate such objections, Philippi abandons
the verb βουλεύειν and proposes to read βουλεύσεως τὸν ἀεὶ βασιλεύσαντα,
‘the King-archon for the time being shall judge concerning attempted
murder.’ But this suggestion is open to the following objections: (1)
we are compelled to render διαγνῶναι (l. 13) ‘to adjudicate finally,’
and we do not think that it bears this meaning in the inscription; (2)
τὸν ἀεὶ βασιλεύσαντα is a very questionable Greek rendering for ‘he who
is King-archon for the time being’: (3) while it is true that attempted
murder was tried, in Aristotle’s time,[12] in the Palladium, it has no
real affinity with manslaughter. It is impossible to suppose that the
‘appeasement’ mentioned in the inscription could have ever been applied
in cases of attempted murder. It would be absurd to compensate relatives
who had lost nothing, and to ignore the person on whose life the attempt
was made. Demosthenes definitely cites[13] this law of ‘appeasement’ as
referring to manslaughter. Hence, as we believe that the second line of
our inscription refers to manslaughter and as λευσαντα (_sic_) is found
in the unrestored part of the inscription, we propose to restore μὴ
βου]λεύσαντα instead of ὡς βου]λευσαντα and understanding κτεῖναι with
αἰτιᾶται, we translate ‘if anyone accuses a person of slaying without
deliberate resolve.’

We will now suggest a translation of this passage, reading μή instead of
ὡς in the second line.

‘And if a man slays a man not with intent (to kill), let him be put
on trial (φεύγειν), and let the “Kings” judge of the causes of death,
or, if anyone accuses a person of slaying without deliberation (μὴ
βουλεύσαντα), let the Ephetae adjudicate. And the “appeasement,” if there
is a father or (and) brother(s) or (and) sons (of the slain), let all
(accept) or let one objector hold the field: if there be none of these,
let (the “appeasement” extend) to cousinship and cousins, provided all
consent to be “appeased” having sworn the (customary) oath: if there
be none of these (_i.e._ cousins) and if the man slays involuntarily,
and the Fifty-one, the Ephetae, decide that he slew involuntarily, let
ten phrateres permit his return from exile,[13A] if they (all) agree,
and let the Fifty-one select these (ten) according to birth (or rank
or merit—ἄριστίνδην), and let (all) previous slayers be bound by this
law: ... and if any person slays a manslayer or causes (_i.e._ plots)
his death while the manslayer abstains from the boundary markets and
from Amphictyonic games and festivals, let him be liable to the same
penalty as if he had slain an Athenian (citizen): and let the Ephetae
judge the case: ... it is lawful to kill manslayers or to arrest them,
in our territory (ἡμεδαπῇ) but it is not lawful to torture them or to
amerce them: the fine payable shall be twice the amercement: ... if any
person slays on the spur of the moment in self-defence a man who tries
by violence unjustly to rob and plunder him, let his act of bloodshed go
unpunished.’

Philippi[14] finds the reference to ‘the kings’ in this inscription
rather difficult to explain. He thinks that the allusion can only be
to archons, but he feels also that ‘it seems inadmissible to assume
collegiate functioning after the archonship became annual.’ He therefore
views with sympathy the extraordinary suggestion of Köhler, that τὸς
βασιλέας means τοὺς ἀεὶ βασιλεύοντας, that ‘the kings’ are ‘those who
from time to time held the office of king-archon.’ The solution of this,
as of other difficulties in the inscription, is, we believe, to be found
in a correct analysis of the word ἄκων, which means ‘involuntarily’ or
without intent.

Let us suppose that a man A caused the death of another man B. Obviously
this event could occur either (1) in an accidental manner, without
the least possible foresight or culpable neglect, as for instance in
a wrestling-match or in a javelin-throwing competition: or (2) in
circumstances which implied a certain amount of culpable neglect, or
ἀφυλαξία, because the slayer did not take the usual or the necessary
precautions—as, for instance, if a drug was administered, in illness, to
B, and A did not see to it that the drug was of the proper kind: or (3)
in a manner which involved a certain amount of intent or deliberation,
though not necessarily ‘malice aforethought,’ on the part of the slayer,
as, for instance, if A struck B in a drunken bout, or in a sudden fit of
anger, jealousy or revenge. Plato,[15] in the _Laws_, makes the clearest
possible distinction between these cases, and so does Antiphon[16] in
his _Tetralogies_. But the Greek words ἄκων and ἀκούσιος were applied
indiscriminately to all three cases!

The Greeks of historical times actually put on trial inanimate objects
which had slain a man. Why? Was it because these objects were regarded as
polluted and it was necessary to discover the extent of the pollution?
We do not think so, for such objects were either polluted or they were
not. There could have been no question of degrees of pollution. The
purpose of such a trial was rather, we think, to inquire whether the
objects were guilty or not. But why was this question of such importance?
Clearly because there was a human, as distinct from a divine, interest
in such trials. We suggest that these trials were instituted primarily
in order to establish the innocence of an accused man. In Greek law,
unlike modern law, it was necessary for a man to prove his innocence.
He could only do this, very often, by proving that somebody else,
or something else, was guilty. We do not agree with Müller[17] and
Philippi[18] in regarding these trials (δικαὶ ἀψύχων) as sham trials.
Presided over by five ‘kings,’ as Aristotle[19] assures us that they
were, they cannot have been so altogether meaningless and absurd. They
were, we think, almost as important as a modern Coroner’s inquest. Now,
who, we may ask, were the five ‘kings’ who sat at the Prytaneum ‘murder’
court in the time of Aristotle? They were, simply, the King-Archon,
and the four Phylobasileis, or Tribe-Kings, who still survived as the
religious and judicial representatives of the old Ionian tribes of
Attica. These kings are therefore the aristocratic descendants of the
Elders who ‘sat on smooth stones in a sacred circle,’ in the Pelasgian
Age.[20] The Prytaneum, as Glotz[21] points out, was the oldest court
at Athens. Coulanges[22] connects this court with the worship of the
ancestral-hearth; it was, he thinks, the divine ‘hearth-stone’ of the
nation, the source of its vitality, the symbol of its immortality. Yet
this court Müller and Philippi regard as a mock or sham-court, in which a
number of respectable but unintelligent nobles persisted in upholding the
obsolete traditions of a ridiculous past!

We believe that ‘the kings’ of the Prytaneum Court are identical with
‘the kings’ of our Draconian inscription. The first two lines of the
fragment refer, in our view, to accidental slaying, in which there
was no degree of guilt attaching to the human agent, but in which it
was necessary to prove that the guilt was attached to an animal or an
inanimate object. We think it quite probable that such cases were tried
at the Prytaneum.[23] We may go so far as to say that such cases were the
_raison d’être_ of the survival and the historical importance of such
a court.[24] The legislator, in our inscription, says: ‘If a man slays
another without intent, let him be put on trial, let “the kings” judge of
the causes of death’ (δικάζειν αἰτιῶν φόνου).

We shall discuss[25] later the function of the Ephetae judges who
are mentioned in this inscription as collaborating with the kings in
the judicial investigation of homicide-guilt, and we shall suggest
an explanation of the fact that they were invariably fifty-one in
number.[26] In regard to the adverb ἄριστίνδην, which means, in general,
‘according to excellence,’ we agree with Philippi[27] that in the context
it refers to birth rather than to social rank. The selection of the
phrateres would probably have been made from ‘brethren’ who were not
kinsmen of the slayer, but merely related by ties of ‘affinity’ or of
local contiguity with him. Plato[28] suggests that in certain cases of
homicide the judges of guilt (and probably therefore of atonement) should
not be akin to the criminal. The fact that the father and the brothers
(we assume that the singular form ἀδελφός includes all the brothers) and
the sons of the slain could, if unanimous, have accepted ‘appeasement’
and have legalised the manslayer’s return from exile, shows how far from,
and yet how near to, the wergeld customs of Pelasgian days were the
historical murder laws of Greece. Yet here we have not wergeld proper,
but only a survival, a reflection, of its ancient vigour. Nothing could
show more clearly than this law does the validity of our theory[29]
which finds in a ‘compromise’ between different forces the origin of the
historical homicide-code of Greece.

Glotz[30] holds that the objection of a single relative to ‘appeasement’
could neutralise the will of the other kinsmen because, if he were
obdurate, he could prevent the unanimity which was required by law for
such return. But we shall argue, later,[31] that while the relatives had
considerable legal powers if they were unanimous, they were probably
subject to superior control if they disagreed. It is difficult to suppose
that one bitter enemy amongst the relatives of the slain could, _in
practice_, have imposed a penalty of perpetual exile for manslaughter.

We have discussed[32] the theory of Glotz that ‘private settlement’ was
legal, even for wilful murder. How can Glotz reconcile such a theory with
this Draconian law which provided for[33] a trial and a verdict even in
cases of accidental slaying? According to our interpretation of the
restored inscription, the relatives of the slain may not always agree,
but the kings and the Ephetae must adjudicate in each case.

Glotz suggests,[34] further, that Dracon first introduced the distinction
between murder and manslaughter. Is this the view which is suggested
_prima facie_ by the restored inscription? To us it seems quite obvious
that the inscription assumes, as a familiar fact, an already existing
distinction, not merely between murder and manslaughter, but also between
manslaughter and accidental slaying. If the distinction appeared as a
legal innovation in the Draconian legislation, surely such a distinction
would have received some emphasis, since it would have been necessary to
enlighten an uncivilised public opinion; surely the definitions of the
various kinds of homicide would have been more clearly marked and the
penalties more clearly indicated.

Since the Draconian inscription has been restored from quotations in
Demosthenic speeches, we shall turn to those speeches for a more complete
account of Attic homicide law. But the Demosthenic references must be
supplemented from other sources—especially from Plato’s penal code.

HOMICIDE LAWS IN PLATO AND DEMOSTHENES

If we accept the opinion of Coulanges[35] that the synoekism of Attica
did not abolish the local prytanies and magistracies, it will be readily
conceded that the Athenian city courts, that is, the Attic State courts,
did not necessarily adjudicate in all cases of homicide. Owing to the
civic and religious aspect of wilful murder and kin-slaying—crimes which
involved the penalty of death or the confiscation of property—we may
feel certain that the State courts had exclusive jurisdiction in such
cases.[36] But we cannot be sure that the same principle applied to
manslaughter and minor degrees of guilt, except when such deeds occurred
between parties who had only one civic bond between them, namely, the
political union of the State. Most frequently, we admit, the parties
involved would be of such a kind. The rise of political democracy and
of a new nobility of wealth led to the accumulation, in the cities of
Attica, of a vast multitude of persons who did not belong to any of the
old tribes or religious corporations.[37] The common worship of the
clan, the phratry and the tribe did not receive their allegiance. Hence,
probably, the courts of such organisations would not, even if they could,
adjudicate in their case. But there survived in Attica, all through the
historical era, families who still belonged to these more primitive
groups. They were the old nobility, the country gentry, scattered over
rural Attica,[38] who continued to obey and, where possible, to exercise
the old jurisdictions of the clan, the phratry, and the tribe. We have
shown that local tribal courts still functioned, with State-sanction,
in historical Attica.[39] We have quoted a passage[40] from Plato which
suggests that some such local courts had power to condemn to death a
person who maliciously wounded one of his parents.

We agree with Müller[41] and Coulanges,[42] in opposition to Glotz[43]
and Philippi,[44] in the view that Plato’s _Laws_ are based, in the
main, upon the Attic legal codes. There are certain points in which
Platonic law seems independent of Attic law. Are these variations to be
attributed to the fancy of an idealist or are they rather a supplement,
an incorporation of local and tribal laws which the State codes did not
mention but always presupposed? So far as homicide at least is concerned,
we prefer the second alternative: and we shall give at a later stage the
reasons for our preference.

In describing the trial of inanimate objects and of animals which were
guilty of human bloodshed, Plato says[45]: ‘If a beast of burden or any
other animal shall kill any person (except in a public contest) let the
relatives (of the deceased) prosecute the cause of death: and let the
wardens of rural areas (ἀγρόνομοι) upon whom ... the relatives shall
impose this task, decide upon the matter: and let them destroy the
animal (if) condemned and cast it beyond the boundaries (of the State).
If any inanimate object deprives a person of life (except lightning or
such god-sent bolt ...) either by the person falling upon it or by its
falling upon the person, let the nearest of kin appoint the nearest
neighbour to act as judge, and (thus) free from pollution himself and
his whole kindred, and cast the condemned object beyond the boundaries.’
There is no mention of the Prytaneum Court or of the Tribe-Kings. We
can explain the omission by supposing that Plato is referring to local
courts and local cases of bloodshed, in which the relatives had not to
go outside their immediate neighbourhood to obtain jurisdiction. The
ancient phratry was an assembly of local clans: neighbourhood was the
essential factor in the bond which the phratry religion represented. The
‘nearest neighbour’ in this quotation would have been a member of the
phratry, if not of the clan, to which the slain person belonged. The duty
of prosecution which is here referred to was no sham duty[46]; it was a
serious religious obligation. Failure to prosecute would have ‘polluted’
the relatives of the slain.

So far there is no question of any human guilt. But such a question
might have easily arisen. In the Hebrew murder-code,[47] if an ox gored
a man to death, it was necessary to inquire whether the ox had been
‘let out’ by the owner, and whether the ox was previously ‘known to be
dangerous.’ If so, the owner could have been put to death, unless he
ransomed his life. Let us suppose, furthermore, that the object had not
‘fallen,’ but was such that it must have been ‘thrown.’ Two cases might
now arise: (1) the ‘thrower’ might confess that he threw the object,
say, a stone or a piece of wood, but at the same time deny that he threw
it with the intention of hitting, much less, of killing, any person: or
(2) the ‘thrower,’ guilty of intent to kill, might escape undetected,
perhaps concealed by a wall or a boulder or a shrubbery, from which he
had hurled the fatal missile. Thus, the trial of inanimate objects, and
also, but to a less extent, the trial of animals, might have had a close
connexion on the one hand with the question of accidental homicide,
committed by a human agent, and on the other with the question of ‘murder
by persons unknown.’ Upon the precise circumstances of each case would
have depended the question whether local magistrates and tribunals
would have possessed jurisdiction in the matter, or whether it would
have had to be referred to the central State authority at Athens. But to
this same authority would naturally also have fallen the decision as to
the guilt of animals or objects which had caused the loss of human life
within the city of Athens and its environs: and hence we can understand
why the central Prytaneum court had to adjudicate not only upon guilty
animals and inanimate objects, but also, and with much more serious
possibilities, upon murder by persons unknown.

In the case of objects which could only have proved fatal if they were
thrown by a human agent, a verdict of acquittal, in regard to such
objects, would have logically involved a verdict of murder by persons
unknown; for, if we suppose that the object was accidentally thrown, it
is probable that the thrower would have come forward and established
the blood-guilt of the object concurrently with his own innocence.
Demosthenes[48] says in regard to the Prytaneum court: ‘If a stone or
piece of wood or iron or anything of the kind falls upon and strikes a
man and we are ignorant who it was that threw it, but know and have in
our possession the instrument of death, proceedings are taken against
such instruments here.’ Plato asserts that the objects mentioned were
prosecuted by the relatives of the slain: but may we not also assume
that a man who had thrown one of these objects without malicious intent,
and who was accused of murder or manslaughter, would have lodged an
accusation against the ‘object’ at the preliminary inquiry[49] before the
King-Archon, that is, at the Prytaneum? If the Prytaneum found the object
guilty, would not the verdict have prohibited any further proceedings?
If, on the other hand, the object was clearly hurled by a human agent
with malicious intent, and if the agent was unknown, proceedings, of a
most formal kind, were taken against the unknown slayer.

Similar proceedings would of course be taken if there was no ‘object’
involved, as, for instance, in case of death by strangling. Such
proceedings are thus described by Plato[50]: ‘If anyone,’ he says, ‘is
found dead and the murderer is not known, and is not discovered by
careful search-parties, let there be proclamation against the murderer
as in other cases, and let the heir-at-law (_i.e._ the nearest relative
of the deceased) proclaim in the market-place that the murderer, whoever
he is, must not, since he is guilty of bloodshed, set foot in any sacred
place in his native State or in that of his victim, or if he does, and
he is discovered and identified, he shall be put to death and cast
unburied beyond the boundaries.’ We have already pointed out[51] that
the object and purpose of trials for homicide in Greece was not so much
the establishment of guilt, as it is in modern States, but rather the
establishment of innocence. Now, our last quotation from Plato suggests
that a man who came to be suspected of homicide some time after the crime
was committed, and who was never formally prosecuted and convicted,
could, nevertheless, be put to death! But we shall see[52] that one
refuge still remained to the ‘unfortunate wretch.’ He could have pleaded
innocence, in the presence of the avengers, and this plea compelled _ipso
facto_ a recourse to trial: he could of course be arrested on the spot
and imprisoned, but he could challenge a verdict at a court of summary
jurisdiction, the prison court, known as ‘the Eleven,’[53] and if he
proved his innocence to the satisfaction of more than four-fifths of his
judges, his accuser paid a fine of one thousand drachmae! Thus, he could
not be slain on the spot by the avengers if he pleaded innocence: but
unless he proved that he was innocent he was ultimately put to death.

Aristotle may be taken to suggest that there was no essential connexion
between the trial of inanimate objects and the verdict of murder
against a person unknown. He says[54]: ‘if the name of the homicide
is unknown, the indictment is prosecuted in general terms against the
unknown author’; but in the next line he adds: ‘The King-Archon and the
Tribe-Kings have competence in indictments against lifeless objects and
the brute creation.’ The juxtaposition of such references is sufficiently
significant. Pollux[55] is more definite: ‘The Prytaneum court,’ he says,
‘adjudicates concerning slayers if they are unknown, and also concerning
lifeless objects that have fallen and caused death.’

Though none of these authorities say anything to support, neither do
they say anything which refutes, our opinion that the Prytaneum court
could also try cases of ‘accidental’ slaying in which a person accused
of manslaughter pleaded an entire absence of neglect[56] or passion
or intent. Our view is however rendered probable by the fact that
preliminary inquiries in homicide cases were made in this place which,
in addition to being a court, was also the official residence of the
King-Archon and of the Prytaneis[57]; but the most cogent argument in
favour of our hypothesis is to be found in the first two lines of the
Draconian inscription if our interpretation of these lines is correct.
We fail to see how the Draconian reference to ‘kings’ as ‘the judges’
in cases of homicide committed ‘without intent’[58] can be otherwise
satisfactorily explained.

If it be objected that pleas of ‘accidental’ homicide were regularly
tried at the Palladium court,[59] we may reply that the proper function
of this court was subsidiary or supplemental to that of the Prytaneum.
In the Palladium the accused in his plea denied, indeed, any guilt,
but he would have found it difficult to prove his innocence unless
he could transfer the guilt to another person. In the Prytaneum, as
we conceive it, he had often an opportunity of laying the blame upon
an inanimate instrument of death. Such a plea of accidental slaying
involved no question of human guilt, as the accusation was centred upon
an inanimate ‘object.’ Again, whenever the plea of the accused differed
from the charge of the accuser, it was the duty of the King-Archon to
decide on the probabilities of the case, before he relegated the trial
to its appropriate court.[60] If, then, a person accused of murder or
manslaughter could advance a plea of accidental homicide by accusing an
inanimate object, the Prytaneum court adjoining the official residence of
the King and the Prytaneis would have been at the immediate disposal of
the defendant. No long period of time, such as ordinarily had to elapse
between formal accusations and homicide trials, preceded the trials at
the Prytaneum; and we may infer from Plato’s account that the verdict
of ‘death by persons unknown’ was normally brought in by the Prytaneum
court before any formal proclamation of the unknown murderer was made by
the relatives of the slain.

INVOLUNTARY HOMICIDE

In regard to pleas and charges of manslaughter, we hope to show that
there is a very substantial agreement amongst the ancient authorities.
Once more[61] we must call attention to the possibility of local as
distinct from central jurisdiction. Demosthenes[62] quotes a law of
Dracon relating to the ‘appeasement’ of the relatives of the slain,
which is practically identical with the law which we have quoted from
the restored inscription. ‘Proclamation to (or against) the slayer shall
be made in the market-place (by all relatives of deceased) within the
degrees of cousinship and by cousins; in the prosecution there shall act
jointly with these, the sons of cousins, the sons-in-law (γαμβρούς) and
the fathers-in-law (πενθερούς), the cousins-in-law, the sons of such
cousins and the phrateres. If “appeasement” is prescribed (δέῃ), if
there is a father or (and) brother(s) or (and) sons, let all (these) be
appeased or let one objector hold the field: if there are none of these,
and (the accused) slays involuntarily, and the Fifty-one, the Ephetae,
decide that he slew involuntarily, let ten phrateres decide about
appeasement, if (all) consent. These let the Fifty-one choose according
to birth (or merit).’ We give below[63] the Greek version of the latter
portion of the law, so that it may be the more easily compared with the
corresponding portion of the Draconian inscription. In this inscription,
there are two lines which are not found in Demosthenes, namely those
which refer to the rôle of the ‘cousins’ in accepting ‘appeasement.’ We
must not, however, conclude that the cousins had ceased to have a voice
in ‘appeasement’ in the time of Demosthenes, or from the year 403/2
B.C. onwards, or in Solon’s time. We are convinced that the omission is
due either to the negligence of a scribe or to the deliberate excision
by Demosthenes of unnecessary elements of law in a legal quotation
which included extracts from different laws, most of which are only
remotely relevant to his main purpose in the speech. It would be absurd
to suppose that a legal innovator jumped from the ‘small family’ to the
neighbour-brethren (phrateres) and ignored the cousins in an enactment
involving the transfer of property which constituted ‘appeasement.’
Surely if any change were made in the personnel of the recipients, the
‘neighbours’ would have been first omitted. And we cannot suppose that
cousins had become obsolete since Dracon’s time!

The formal proclamation of a charge of manslaughter against the
accused was the initial act of the ‘prosecution’ which, after a
period of inquiry, after examination of witnesses, and after various
other formalities, ultimately culminated in the formal trial of the
accused at the Palladium court. But, as it stands, this quotation from
Demosthenes suggests, _prima facie_, that trial could be dispensed with
if the deceased had near relations who unanimously consented to accept
‘appeasement’: and that it was only in the absence of relatives that a
trial took place, after which the phrateres, who were merely neighbours,
negotiated the appeasement. But this _prima facie_ inference arises from
the clumsy and unscientific wording of the law. That the inference is
logically invalid is obvious from the simple fact that, in the absence of
relatives of the deceased, the slayer could not be tried at all! When the
law says ‘if there are none of these,’ it must be taken to mean ‘if none
of the groups which are privileged to decide about appeasement can be
brought to unanimity.’

It is an extraordinary thing, that in this Demosthenic citation of the
law relating to manslaughter there is no _certain_ reference to the
penalty of exile. Are we to assume that such a penalty was not legally
compulsory, that it was merely a fortuitous eventuality which depended
entirely on the attitude of the relatives to ‘appeasement’? Are we to
suppose that if all the relatives concerned agreed to be ‘appeased’
immediately after the trial and the verdict, the manslayer could have
remained at home precisely as in the old wergeld days? We have no doubt
that so far as the relatives of the slain were concerned, he could have
remained at home. But could he have been admitted to purgation? Was he
not ‘polluted’ if the dying man did not ‘release’ him? Could he have
ignored the anger of the gods and of the slain? The laws of Dracon do
not directly assist us in answering these questions: on the contrary, by
their obscure wording they suggest frequently the wrong answer. But we
have seen[64] that these laws can only be explained as a ‘compromise.’
In the wergeld system of tribal Greek societies in pre-historic days,
there was a regular and scientific method of ‘appeasement’ which, in most
kinds of homicide, was recognised as a solvent of the feud. But in the
Draconian code ‘appeasement’ appears in a degenerate and insignificant
aspect. It is subordinated to other penalties which are not stated with
any degree of emphasis, for the simple reason that they were universally
familiar. All the arguments which we have put forward in support of our
theory of a ‘compromise’ in Attic law compel us to assume that exile
was an essential ingredient of the penalty for manslaughter. Such an
assumption is implied in the reading ἐσέσθων (let them permit to return)
occurring in the Draconian inscription. Demosthenes, unfortunately, has
αἰδεσάσθων, which refers merely to ‘appeasement.’ As we should have
expected, Glotz[65] and Müller[66] interpret this Demosthenic reference
as if it were a logical scientific document: and they accept the _prima
facie_ inference that a person accused of manslaughter could, as soon
as he was publicly proclaimed and banned from all public and religious
intercourse, avoid the ordeal of a trial and the punishment of exile by
simply taking some money with him to the house of the father, brother
and sons of deceased; if he succeeded in securing a ‘settlement’ and
procured a ‘legal release,’ he could have quietly resumed his ordinary
occupations! This interpretation, which we have already rejected,[67]
is inconsistent with other passages in Demosthenes and in Plato which
we shall now discuss. While we admit that this law of Dracon does not,
unfortunately, mention the exile penalty for manslaughter as an obvious
and incontrovertible fact, yet we insist that it does mention trial as
a normal concomitant. The Ephetae are there, first and last. The Ephetae
must decide the degree of guilt: they must decide that the slayer slew
involuntarily: they must in the absence of relatives or in the event of
their disagreement select the ‘phrateres’ according to birth or merit.
This at least is very different from ‘private settlement.’

Demosthenes[68] quotes another law of Dracon regarding manslaughter, as
follows: ‘If anyone shall pursue or plunder beyond the civic boundary
any of those slayers who have gone into exile and whose property is
not confiscate to the State, he shall incur the same penalty as if he
did so inside our boundaries’ (ἐν τῇ ἡμεδαπῇ). Fortunately we possess
Demosthenes’ explanation of this law which, because of its peculiar
expression, requires some such explanation. The word ἐπίτιμα, in
reference to property, is opposed to ἄτιμα and means ‘not confiscated.’
Hence, the phrase ‘Slayers whose property is not confiscated’ must refer,
says the orator, to ‘involuntary slayers,’ because the property of wilful
murderers is confiscated to the State. Thus this Draconian law, instead
of employing the adjective ‘involuntary’ (ἀκούσιος) as a predicate
of ‘slayers,’ uses two clauses to describe what a single adjective
would have described. Are these two clauses, then, to be regarded as
definitive; as concerned with qualities which normally and universally
characterised involuntary slayers? Are involuntary homicides, as a class,
defined as ‘those manslayers who have gone into exile and whose property
is State-guaranteed’ (ἐπίτιμα)? Or are we rather to suppose that there
were two classes of involuntary homicides, and that this law refers
to only one of these classes—that in some cases, as Glotz and Müller
conceive the matter, the slayer bribed the relatives of the slain, and
avoided all further trouble; and, in other cases, he went into exile? In
our opinion this quotation suggests that all involuntary slayers went
into exile for a period of time. Müller holds[69] that the duration of
this period of exile was not fixed by any law: that the slayer remained
in exile until such time as the relatives accepted ‘appeasement.’ We
shall discuss this opinion more fully later, but we may say here that it
seems very strange that the State should have guaranteed protection for
the property of the slayer, and should, at the same time, have had no
voice in determining the limits of his period of exile, no influence in
constraining the relatives of the slain to accept ‘appeasement.’

Speaking of involuntary homicide, in another passage, Demosthenes
says[70]: ‘If the accused be convicted and be found to have done the
deed, neither the prosecutor nor anyone else has control over him, but
the law alone. And what does the law command? That a person convicted of
involuntary homicide shall on certain stated days leave the country by an
appointed road and remain in exile until he has appeased certain[71] of
the relatives of the slain (τινα τῶν ἐν γένει τοῦ πεπονθότος): then it
permits him to return, not anyhow, but in a particular manner, ordering
him to sacrifice and be “purged” and giving other directions which he
must carry out. Rightly, men of Athens, does the law prescribe all
this. It is just to make the penalty of involuntary homicide less than
voluntary, and it is right to prescribe exile guaranteeing (a person)
a secure exodus, and for the returning exile to free himself from tabu
and be cleansed by customary rites; above all it is right that the laws
should control everybody and everything.’ In this passage we find the
usual obscurity of language and even apparent discrepancies.

Is it suggested that if the manslayer is not accused and convicted,
the law has no control over him? Glotz and Müller would find in
such quotations a proof of their theory of the legality of ‘private
settlement.’ But it is absurd to examine as it were microscopically such
passages as this. They must be interpreted, as far as possible, in the
light of other parallel references, and accepted or rejected according
to the criterion of consistency. We admit of course that Demosthenes is
not always consistent; he was essentially an orator, and as an orator
he placed rhetoric before logic, persuasion before truth. But in legal
quotations he had to respect the legal knowledge of his audience. Hence
such quotations contain of necessity an important element of truth. In
the passage which we have just cited there is an apparent discrepancy
which militates somewhat against its logical value. We may ask: ‘How can
the law be said to be master of everybody and everything if it guarantees
to the relatives of the slain the right to refuse “appeasement,” even if
there be only one dissentient?’ A law of Dracon prescribed that ‘all must
agree or let one objector hold the field.’ Was not this objector, then,
κύριος τοῦ ἀνδροφόνου? What control had the law over such an objector?
On the very face of it, therefore, this statement of Demosthenes seems
inconsistent with itself! But perhaps Plato will help us to solve the
problem.

We have already[72] quoted Plato’s account of the penalty for
manslaughter. The legend, which he mentions, ‘of priests of old’
concerning the temporary anger of the dead shows the religious
significance which the exile penalty possessed for Plato: he understood
the meaning of the ‘customary rites’ of cleansing and purgation
which the manslayer had to perform on his return. In his penal
code, Plato differentiates between different degrees of guilt in
involuntary homicide: and it is significant that the penalties vary
correspondingly—not in the extent of the ‘appeasement,’ but in the
duration of the period of exile. Thus he says[73]: ‘If anyone kills a
freeman in a passion, let him be of necessity an exile for two years.’
In this case there is an element of guilt, but there is no deliberation
or intent to kill. He goes on to say: ‘He who in a passion but with a
certain degree of intent (μετ’ ἐπιβουλῆς) slays a person, ... let him
be an exile for three years ... being punished during a longer period
because of the greater seriousness of his passion.’ ‘It is difficult,’
he continues, ‘to give laws on such matters with accuracy. Of all such
matters, therefore, it is right for the guardians of the laws to have
cognisance: and when the period of the exile shall have expired for each
offender, it is right to send twelve judges to the civic boundaries
who having considered still more clearly meanwhile the condition (or
conduct—πραξεῖς) of the exiles, will be the final arbiters (δικαστάς) of
the “appeasement” and their return home from exile: and let them abide
by the decisions of these magistrates; and if, after returning from
exile, anyone of these commits again the same offence, let him be exiled
and never return: if he returns let him suffer in the same way as if
a stranger returns’ (κατὰ τὴν τοῦ ξένου ἄφιξιν). Here we have a very
different picture from that which the theories of Glotz and Müller and
some Demosthenic passages suggest. There is question of manslaughter, but
there is no reference to the power of wrangling relatives to prevent the
exile’s return. On the contrary, it is stated that the ‘appeasement’ was
controlled by judges who may have been _phrateres_, but were probably not
kinsmen of the slayer. The last line in the passage refers to a law which
we have already[74] mentioned, namely that which decreed perpetual exile
for manslaughter committed between strangers in any given State. The
penalty for ‘returning’ in such a case, that is, for _rupture de ban_,
was death.

In a passage which refers to a case of kin-slaying, in which the dying
man ‘forgave’ his slayer (without, however, granting a ‘release’), Plato
says[75]: ‘If any person of his own accord absolves anyone for such a
deed, let the purgations be made for the slayer as if his act had been
involuntary, and let one year be the term of his absence from the country
according to law.’ The theory of the legality of ‘private settlement,’
before or after trial, cannot be reconciled with this quotation. The
phrase ‘according to law’ suggests that Plato refers to actual Attic law,
and not to an ideal law of his own creation.

Plato adds that in such a case the slayer can never resume his ordinary
domestic life, even though he recovers his civic status. Similarly, for
the slaying in a passion of a husband by his wife, or of a wife by her
husband, the penalty prescribed is three years’ exile, but such persons,
even though not akin in blood, cannot return home to share in common
domestic rites with their children, or to eat at the same table. In this
law we see clearly the operation of a local or domestic ‘pollution’ which
debars the slayer from his family hearth, and which is quite distinct
from the civic pollution which debars him from certain definite States.
It is important to observe that with the local or domestic pollution no
civic or international law has ever interfered; whereas civic pollution
has been regulated by law according to the varying degrees of guilt, and
the claims of the relatives to ‘appeasement.’

Plato implies that one year was the normal period of exile for
manslaughter. The Greek verbs ἀπενιαυτίζειν[76] and ἀπενιαυτεῖν convey
the same implication. Can this fact be reconciled with the law of Dracon?
We believe that it can, but only by distinguishing between theory and
practice, between local and central courts, between local and central
religion.

Plato shows how local judges would have solved the difficulty caused by
recalcitrant relatives. We have seen[77] that Plato decrees perpetual
exile for manslaughter between strangers. But exile from what State?
Surely it was only from the State in which the deed took place: and the
reason for this penalty was probably the fact that the relatives of the
slain did not live in the State where the deed took place: and hence no
‘appeasement’ of these relatives could formally admit him to that State,
though he could be admitted through ‘appeasement’ to his native State,
if the slayer and the slain were both citizens of the same State. Thus
the tendency of the pollution doctrine, apart from the claims of the
relatives of the slain, was to exact perpetual exile for manslaughter.
Plato decrees that any citizen had the right to prosecute a stranger for
manslaughter, but not that he had a right to accept ‘appeasement.’[78]
Hence, by a strange paradox, the relatives of the slain provided a medium
by which the man-slayer regained his civic status. Yet, in the case of
involuntary kin-slaying, the slayer could never re-enter his home! We
believe that these decrees are not Platonic creations, but were found
in Attic law, written or unwritten. Can they be reconciled and made
intelligible?

We saw[79] that wergeld was not admissible for kin-slaying in the
Pelasgian tribal system. Outside the kindred, however, wergeld permitted
the slayer to remain at home or to return after a time, if he could not
pay the full _were_. A comparison of such customs with the historical
homicide code suggests quite obviously a compromise, in which the
seventh-century pollution-doctrine failed to impose its will on the
relatives of the victim because of a real or presumed ‘forgiveness’ on
the part of the slain. Without the anger of the dead, the pollution
doctrine could not operate.[80] Apollo himself could not enforce it.
The relatives of the slain had a just claim to be regarded as the best
interpreters of the anger of the dead. It was in this crevice, so to
speak, in the doctrine of pollution that the kindred of the slain drove
the thin end of their old tribal wedge. They claimed the right to
determine the period of exile for manslaughter, but for manslaughter
only: for in such cases the anger of the dead could not be regarded as
perpetually implacable. In theory, then, these relatives had the right
to consent to ‘appeasement’ at any time; but in deference to the dead
their consent could not become effective before a year had passed. They
could in theory delay their consent indefinitely, but delay was less
probable in local than in central jurisdiction. They were compelled by
law to prosecute the manslayer in court if the slayer denied his guilt;
but if he admitted guilt, no trial was necessary; and it was only in such
a contingency that ‘appeasement’ could occur without trial: nevertheless
a year’s exile was still necessary before the relatives could accept
‘appeasement’ and finally remove the barriers to ‘purgation.’ The
fact that the involuntary kin-slayer could never re-enter his home we
attribute to the tradition of Pelasgian domestic religion.[81] This
solution reconciles, we think, the law of Dracon, the code of Plato, and
most of Demosthenes’ references. It is also in harmony with our general
theory[82] of the compromise between ‘pollution,’ tribal wergeld, and
State law, which is expressed in the murder-code of historical Greece.

JUSTIFIABLE AND JUSTIFIABLY ACCIDENTAL HOMICIDE

In our analysis of the Attic laws concerning justifiable homicide, we
will begin by drawing a distinction between three possible contingencies.
First of all, we can conceive that blood has been shed without any
intent to kill, but with a certain element of neglect (ἀφυλαξία), which
has however been expressly mentioned and declared to be justifiable in
law. Secondly, we may suppose that there was a certain degree of intent
to kill and a certain amount of deliberation, but also that there was
an extenuating element of impulse or passion which has been decreed
guiltless, in certain circumstances, by the law. Thirdly, we may suppose
that the person slain was an outlaw or a State-criminal, whose life was
forfeit by the laws of the land, and whose citizen-slayer was declared to
be justified in advance.

Homicide of the first class has so much in common with ordinary
accidental homicide that we think it probable that they were often
confused in Greek thought, if not in law. The words ἄκων and ἀκούσιος
which, we have seen,[83] were applied indiscriminately to denote cases
of different degrees of guilt in accidental slaying and in manslaughter,
were also used to denote such forms of accidental slaying as were
expressly ‘justified’ by law. Perhaps this confusion may help to explain
still further the apparent discrepancies in Demosthenic references
to ‘release’ and ‘private settlement.’ For the case which we are now
discussing, there was no penalty, no exile, or loss of property, not
even a fine. Pleas of justifiably accidental homicide were doubtless
frequently made in answer to charges of manslaughter or of wilful murder.
The King-Archon (and perhaps also the Tribe Kings) had to decide between
the merits of the ‘charge’ and of the ‘plea.’ Obviously, it was always
as a result of a ‘plea,’ never as a result of a ‘charge,’ that homicide
cases were referred to the Delphinium court.

Justifiable homicide of the second class has close affinities with
extenuated manslaughter, or slaying in a passion. The essential
difference lies in an express legal justification in one case, and the
absence of such a justification in the other. When we come to analyse
the Oresteian legends of Attic tragedy we shall find[84] that the
close affinity which exists between these two legal conceptions caused
considerable confusion in the legends—caused Orestes to be immune from
punishment, from one standpoint, but liable to a period of exile, from
another. The oracle of Apollo, which commanded him to slay his mother,
should naturally have been accepted as a complete justification. Some
legends took this view.[85] But such a contingency was not expressly
mentioned in the Attic laws concerning justifiable homicide. Plato
assures us[86] that under no circumstances, not even in self-defence,
was it lawful to slay a parent. Hence it became necessary to regard
Apollo as the divinely immune cause of guilt; and Orestes, as his
blind, obedient instrument, became liable to a merely nominal charge of
manslaughter or extenuated matricide! His mother was almost compelled
to ‘forgive’ the deed! In one legend[87] Apollo commanded the Erinnyes
to withdraw from pursuit, and drove them from his temple; in another he
decreed that they should pursue Orestes for a year![88]

Our third classification includes cases in which only two issues could be
raised—namely, lawful homicide or wilful murder. From this point of view
the act of Orestes could also be discussed, and an Athenian court could
find it interesting to discuss and difficult to decide at what precise
time in the post-Homeric social evolution did private vengeance become
illegal! The trial of Orestes at Argos, which Euripides describes in the
_Orestes_, seems to depend upon this legal difficulty.[89]

We will now illustrate these cases by relevant quotations.

Aristotle’s[90] account is a mere extract, or rather a kind of summary:
‘Homicide,’ he says, ‘admitted and alleged to be lawful, as of an
adulterer caught in the act, or of a friend mistaken for an enemy in war,
or of an antagonist in an athletic contest, is tried in the Delphinium.’
The first clause has been included in our second classification, the
rest of the cases belong to our first category. Demosthenes quotes[91]
the Draconian laws, and his account is almost identical with that which
Plato[92] gives. To facilitate comparison, we will quote both accounts
together in parallel columns:

                             _Demosthenes_

    If any person shall kill another accidentally in a contest or
    in an ambush or in a battle by mistake or having caught him
    (in adultery) with his wife or with his mother, or sister, or
    daughter, or a concubine kept to beget free children, he shall
    not be put on trial (_or_ he shall not be exiled) (φεύγειν)
    for such homicide: and if anyone resisting unlawful seizure
    or violence shall immediately kill the aggressor his death
    shall not be punishable,[93] and it shall be lawful to kill
    murderers (found after conviction) in our territory, but not
    to illtreat or amerce them, under pain of paying[94] double
    damage inflicted: no person shall be liable to any legal
    proceedings for homicide who gives information against (and
    therefore causes the death of) exiles who return when it is not
    lawful.[95]

                                _Plato_

    If any person shall kill a citizen accidentally in a contest at
    public games ... or during a war or the practice of military
    exercises ... let him be purified according to the law brought
    from Delphi about these matters, and be immune from punishment:
    and, regarding physicians, should any person who is attended
    by them die without their intending it, let such physicians
    be immune by law.[96] If anyone catches a thief entering his
    house by night, with intent to steal ... and kills him, let him
    be immune. If anyone commits rape ... let him be slain with
    impunity: if a man finds his wife being ravished and kills
    the offender, let him be immune by law. If anyone shall kill
    a person, warding off unjust death from his father, mother,
    children or brothers ... let him be immune.[97] If any such
    persons (wilful murderers) set foot upon the civic territory
    of the slain, let him who first meets him ... kill him with
    impunity.[97]

We have elsewhere[98] cited a Delphic law which concerned justifiable
slaying, and which, in its completeness, we regard as the common parent
of both these legislations. These excerpts are strikingly similar,
especially if we remember that they are a number of extracts which we
have put together with the object of eliciting a complete list of cases.
No better proof than this could be adduced of the ‘historicity’ of
Platonic legislation[99] regarding homicide. Antiphon[100] refers to the
legal immunity of physicians, and we may therefore consider this Platonic
law to be also Draconian (or Solonian).[101]

To both the above quotations our triple classification of cases of
justifiable homicide can without difficulty be applied. Confining our
attention to the Demosthenic account, we may point out that the reference
to accidental slaying in a contest, ambush, or battle, is covered by
our first category: the infliction of death for adultery or seduction is
included in our second category: and the slaying of unjust aggressors,
and of murderers _en rupture de ban_, in our third category.

In regard to adultery, we have already[102] suggested that the right
to kill _in flagrante delicto_ must not be regarded as a relic of a
primeval custom which decreed the death penalty for adulterers in
all circumstances. The Gortyn laws and the Homeric customs which are
denoted by the word μοιχάγρια support our view that the right to kill
_in flagrante delicto_ was an innovation of the period of synoekism
and of centralised government. Philippi[103] thinks that there is a
strong probability of correctness in Pausanias’ view[104] that the age
of Theseus represents the point at which the distinction of justifiable
homicide could be applied in such matters. But our reading of Pausanias
suggests that in his view the distinction was first applied to adultery
in the time of Dracon.[105] We believe the distinction, thus applied,
was as late as the seventh century, and we agree with Pausanias that the
penalty thus decreed was severe.

WILFUL MURDER

We have seen that the restored Draconian inscription contains no
reference to wilful murder. Demosthenes quotes a law which merely
mentions the crime and which is mainly concerned with the allocation
of trials for wilful murder to the Areopagus court which normally had
jurisdiction in such cases. We shall discuss this law when we come to
describe the Athenian homicide courts. The actual penalties for murder
can only be inferred from the wording of other Draconian laws, and from
other sources, such as Plato. Thus we may infer from the law[106] which
declared inviolable the person and property of involuntary slayers, who
are described as ‘those who have gone into exile and whose property is
not confiscate,’ that in the graver kinds of homicide, such as murder,
the criminal’s property was confiscated to the State. Again, from
the law[107] which forbade the slaying of a murderer ‘whilst he keeps
away from the markets on State-boundaries and from public games and
Amphictyonic festivals,’ and from the further law[108] which permitted
the slaying of a murderer found, after conviction, in his native
territory, we may infer that death was the normal penalty for any
murderer who did not go into perpetual exile. Demosthenes, in the speech
_against Meidias_,[109] says that ‘the laws punish those who have slain
with intent by death _or_ (καί) perpetual exile _and_ (καί) confiscation
of property.’ Plato[110] is quite lucid in his account of wilful murder,
but he omits to mention confiscation of property. ‘Whoever,’ he says,
‘deliberately and unjustly shall kill with his own hand any of his fellow
citizens (τῶν ἐμφυλίων), let him be debarred from civic and religious
privileges (τὰ νόμιμα) and let him not “pollute” the temples or ports or
other public meeting-place ... let him who is convicted pay the penalty
of death and let him not be buried in the native land of the slain [or
in his own, if that is different]: but if he goes into exile without
wishing to challenge a verdict (κρίσιν ὑποσχεῖν) let him remain in
perpetual exile.’ Demosthenes[111] implies that the last moment at which
the murderer could flee was ‘after the first speech’ at the trial.[112]
Pollux[113] clearly means to say the same thing, though the omission of
the tiny negative μή has annoyed the commentators.[114] ‘The Areopagus,’
he says, ‘judged cases of slaying and wounding with intent (to kill) and
arson (with intent to kill?) and (the administering of) drugs if one
intends to kill in administering (them).’ So far his words are identical
with those of the ‘Draconian’ law, as it is given by Demosthenes. He
continues: ‘There took place a preliminary oath (διωμοσία), and after
this the trial ... and after the first speech it was lawful (for the
defendant) to go into exile if anyone had slain his parents’ (εἴ τις
γονέας εἴη ἀπεκτονώς). When we discuss presently[115] the Attic law of
parricide and kin-slaying, it will perhaps be more obvious that Pollux
must have written εἰ μή τις γονέας εἴη ἀπεκτονώς, ‘_unless_ a man had
slain his parents.’ The ‘Draconian’ law concerning the Areopagus will be
discussed later, in our chapter on the Attic murder courts. We need not
enter into the details of the preliminary accusations, the investigation
before the Archon Basileus, and the three monthly trials which preceded
the final trial and the verdict. Such details, if not already referred
to, may be found in all the ordinary books of reference.[116] But there
is one question which merits a brief examination at this stage: namely,
the question whether the death penalty, in cases of wilful murder,
cancelled or obviated the confiscation of the murderer’s property to the
State.

We have seen[117] that in the wergeld system of the tribes, the death
of the slayer generally affected the payment of wergeld, though custom
seems to have varied between the cancellation of the whole wergeld
and the cancellation of the murderer’s share. But we do not think, as