Chapter XV: Section II: Religious and Legal Transitions (3)

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.