Chapter III: Section I

If we examine the various methods of blood-vengeance which have been adopted by different peoples throughout the ages, we shall find that they may be divided broadly into four groups or categories. Amongst rude and savage races there exists or has existed a system of vengeance which we may describe as a barbarous and unrestricted vendetta. In the absence of any social machinery for the determination of blood-guilt, or for the estimation of its varying degrees, a single deed of blood provokes an endless series of retaliations: a hideous orgy of revenge rages through the land, an orgy which no one may escape; for old men and women and children perish, whether one by one, or in a general massacre. The vengeance is at once collective and hereditary. It strikes at the neighbours and at the most distant relatives of the murderer: it strikes, too, at the children that are born when the murderer has been gathered to his fathers. It ends only when there is hardly anyone left to kill, or when a paltry sum of money is offered to placate a glutted thirst for blood. It is a strange fact that such a system should have survived up to comparatively recent times[1] in the Balkan States. It is generally but, as we hope to show, erroneously maintained that such a system prevailed amongst the earliest inhabitants of Greece about whom we have any certain knowledge.

A second mode of vengeance we may describe as a personal restricted vendetta. It is distinguished from the mode which we have just mentioned by the absence of collective or hereditary punishment. It refuses to visit the sins of the father upon his children or upon his neighbours. The right to avenge remains with the relatives of the slain. They may lie in wait for the slayer or, if he flees, they may dog his footsteps over land and sea. But they dare not strike the innocent for the guilty. There is some power, whether of military autocracy, or of public opinion, which prescribes the bounds of their avenging. The system does not generally include a regular tribunal for the trial of homicide, whether because there is little difficulty, in certain social groups, in determining the identity of the murderer: or because some primitive method of evidence, such as the ordeal of medieval Europe, takes precedence of human witnesses: or because a recourse to arbitration, in the private domain of a king or of a squire, is too insignificant a procedure to have found its way into any historical records. It is such a system that seems to have prevailed in Serbia up to very recent times. It is such a system that, we hope to show, existed amongst the Achaean caste in Homeric Greece.

A third, and for our present purpose the most important, mode of vengeance is that which we may describe as the ‘tribal wergeld’ mode. It consists essentially of a compensation, in the form of goods or valuables, which is paid by the relatives of the slayer to the relatives of the slain. It differs from our first-mentioned mode of vengeance in the fact that satisfaction is paid in ‘money,’ not in blood, and in the fact that payment is fixed by custom or law and is not of an indefinite duration. It differs from the second mode in this, that the ideal penalty is not death, but compensation or exile, and that the punishment is collective rather than personal. The system is found only in tribal communities, where the life of the individual is subordinated to that of the group, and where property is frequently possessed and enjoyed in common. It is, of course, true that all tribal societies do not adopt this system, whether because temperament and environment foster a blood-lust that money cannot appease, or because a religious law has been superimposed upon the clans, or because a feudal or highly centralised government has become strong enough to resist the demands of the clansmen for compensation. But, apart from these special circumstances, tribal communities tend to adopt the ‘wergeld’ system of vengeance. We have the most ample evidence[2] of its operation in pre-medieval Germany, and Wales, and Ireland and Scotland, amongst the Anglo-Saxons, the Franks, the Wisigoths and the Vikings. We can see in ancient Israel an instance of a land which has evolved beyond the wergeld stage. There came a time when a theocratic legislator was sufficiently powerful to attack the privileges of the clans, and to cry out, as with a divine voice, ‘Ye shall not take satisfaction for the life of a man that is guilty of blood.’[3] We hope to make it clear that it was this system which prevailed amongst the earliest inhabitants of Greek lands, who may, for convenience, be described as Pelasgians. Owing to the great number of the individuals who were liable to make or to receive compensation, and also because of the social organisation of the tribes, we are not surprised to find that a regular tribunal was frequently appealed to, and that a trial, concerned more often with the question of payment than with the question of guilt, was one of the most common events of interest in the life of Pelasgian tribesmen. No wonder is it then that the poet Homer gives a description of such a scene[4] and tells us that Hephaestus had engraved it on the famous Shield of Achilles. This is the earliest reference to a trial of any kind in all European literature.

Our fourth category of the modes of blood-vengeance is intended to comprise all the methods of punishing homicide which are characteristic of fully developed social organisms, whether in ancient or in modern times. Homicide, which was originally conceived as an outrage affecting only a family or clan, may come to be regarded as a crime against the body politic, as an insult to the majesty of the State, its laws, its gods, or its governors. Indeed, this latter conception usually becomes so vigorous that it obscures and ultimately extinguishes the former, at least in so far as that former conception concerns the claims of the relatives of the victim. In early English law the word _murdrum_[5] denoted a fine payable to the king if the murderer was not produced. In feudalism, the lord claimed a _portion_ of the payment made by the relatives of the slayer. This was the _honour-price_, an atonement for the insult caused by a ‘breach of the peace.’ In historical[6] Athens wergeld was forbidden, but the property of a convicted murderer who went into perpetual exile was confiscated to the State. In ancient Israel wergeld was abolished when murder was conceived as a ‘sin’ against the God of the State, when it was believed that blood polluted the land.[7] In Greece, too, we hope to show that wergeld was abolished in the first instance by the religion of Apollo, and that the evolution of the State, if it did not assist in its abolition, at least ensured that the abolition should be permanent. Once murder becomes a sin against the gods, or a crime against the State, the day of private vengeance has passed: that of State trial, State imprisonment, State execution takes its place. The relatives may still assist, they may even be compelled to assist, in the punishment of homicide, but they have lost the right to material compensation.

We will now give a few illustrations of the actual operation of these modes of blood-vengeance. As the fourth or last-mentioned mode is found in all modern States, we need not here illustrate its operation, especially as we shall have to describe, at a later stage, the treatment of homicide in historical Athens.

As an example of the practice of unrestricted vendetta, we may cite the case of the Montenegrins.[8] This little people, up to quite recent years, practised a collective and hereditary vendetta, which continued from generation to generation, until the number of victims on both sides was equal, or until a blood-price of ten sequins was accepted by the feud-weary relatives of the original victim. Again, in Sardinia,[9] until the close of the eighteenth century, a collective hereditary feud followed a single act of murder, and hundreds of lives were lost in a single year. In Corsica,[10] in the eighteenth century, the vendetta-system caused the loss of a thousand lives each year: whole villages were depopulated: houses became fortresses where armed men lay in wait, hungry for vengeance, while the women tilled the fields. A similar barbarous blood-thirst was prevalent in Sicily,[11] in Calabria,[11] and in Albania,[12] up to quite recent times. The establishment of an improved system of government and the operation of disciplinary penalties have fortunately checked and must ultimately abolish so hideous a mode of vengeance. These peoples of the Mediterranean area are probably, as Ridgeway holds,[13] the racial descendants of the old Pelagasian race. For this, and for other reasons, there is a tendency to assume that the Pelasgians followed this system of blood-vendetta. But we hope to show that this view is probably incorrect, and that it is much more applicable to the Greece of post-Achaean days, that is, from 1000 B.C. to 750 B.C. than to the Greece of Achaean and pre-Achaean times.

As an illustration of the second mode of vengeance, we may perhaps cite the Serbians of recent times who adopted a restricted form of vendetta and who often allowed murder to remain unpunished.[14] The restricted system seems to have existed amongst the Araucanians[15] of South America, and amongst the Jivaros Indians,[16] but only when the identity of the murderer could be established. In this latter case we find the alternative operation of a more civilised with a more barbarous form of vengeance. But we must not assume that these forms coexist as alternatives everywhere. A French authority holds[17] that the essential motive of collective punishment was the production or identification of the murderer. ‘So long,’ he says,[17] ‘as the murderer is unknown, so long is the responsibility collective and diffused.’ We cannot accept this statement as an explanation of the origin of unrestricted vendetta. We admit that collective penalties of a minor kind would form a strong inducement for the discovery of the criminal. It was for this reason perhaps that an Anglo-Saxon law[18] levied a fine on the whole ‘hundred’ if the murderer was not produced. But it is one thing to bring pressure to bear on a district, whether by a fine, as in this case, or by an oath, as in the instance mentioned in Deuteronomy[19]; it is quite another thing to destroy a whole town or village if the murderer was unknown. We shall see[20] that the Homeric Achaeans often waited long for vengeance, and often allowed the homicide to go unpunished, rather than visit with unjust punishment the innocent relatives of the slayer. In this system there is no trace of collectivity. The relatives have not even to pay a sum of money. The flight of the slayer is not indeed accepted as a substitute for the normal penalty, which is death, but it postpones indefinitely, if not for ever, a vengeance which the slayer alone can suffer.

To illustrate the operation of the ‘tribal wergeld’ system, we naturally turn, in the first place, to the Germans of pre-Christian days. Tacitus says[21] of them: ‘It is an indispensable duty to adopt the private enmities of a father or a relative ... these, however, are not irreconcilable and perpetual. Even homicide is atoned for by a fixed number of cattle and sheep and the whole House accepts the satisfaction, to the benefit of the civic group.’ Tacitus is obviously astonished at this system of compensation for homicide. The Romans, like the Germans, were familiar with the organisation of the clan, and of the tribe, but Roman law, as far back as we can trace it, did not permit wergeld. In Rome,[22] from 450 B.C. onwards, the expiation of the insult which the homicide offered to the State and its gods had driven from view, and had therefore probably abolished, the material compensation of the clan. The chief detail of interest which Tacitus gives us is the collective acceptance of satisfaction by a whole House or Family. From other sources, which we shall presently discuss, we may infer that the House in this instance was a very large unit, including not merely the closer kindred which traced descent to a common living (or lately deceased) ancestor, but that wider group of kinsmen which is called the clan.

We note also, in Tacitus’ account, a reference to a fixed number of cattle and sheep. Who was it that fixed the number? Who was it that paid? To answer these questions we shall cite some details of Welsh wergeld payments which have been admirably collected and explained by Mr. F. Seebohm.[23]

In the Cymric codes, the normal wergeld was a payment of one hundred and twenty cows, but the number varied according to the rank of the slain. For the death of a chieftain the amount was one hundred and eighty cows: for the death of a stranger, from thirty to sixty cows.[24] Over and above the wergeld or _galanas_, there was payable an insult-price or _saraad_, consisting of six cows. This amount was always paid first, from the murderer’s own cattle. Within fourteen days of the murder, a meeting of the slayer’s clan or wider kindred was convened, at which the proportion of wergeld due from each family was determined. Usually the murderer’s family paid forty cows, or one-third of the total wergeld. Of this amount the murderer himself paid one-third, or about fourteen cows; his father and mother paid one-third, and his brothers and sisters one-third, the brothers paying twice as much as the sisters. The remaining portion of the wergeld, namely, eighty cows, was paid by the wider kindred. Relatives on the paternal side paid two-thirds, those on the maternal side, one-third. As the clan comprised very often a large number of people, the actual contribution of individual cousins of the murderer would have been rather small. The murderer himself paid, in _saraad_ and _galanas_, a total forfeit of twenty cows. But if the murderer was poor, there was paid ‘spear-penny,’ which was one-ninth of the wergeld, but was collected from male kinsmen on the paternal side.

It was not necessary that these payments should all be made at the same time, or immediately. They were frequently made in fortnightly instalments. The system of receiving wergeld seems to have been parallel. It is probable that the cows paid by the murderer’s family went to the family of the victim: those paid by first cousins went to first cousins: those paid by paternal kindred went to paternal kindred: all being distributed in the last resort to individuals, if the clans involved had developed the principle of individual ownership at that particular period of time. It is clear from the Cymric codes that individual ownership was assumed as universally prevalent. But it is certain that such a condition is not a characteristic of all tribal communities. In the Salic law, which operated amongst the Germans from about A.D. 500 onwards, a distinction was made between the inheritance of ‘wergeld’ and that of the ‘allod’ or family-domain.[25] While the latter could only be inherited by a family group which did not extend beyond second cousins, a group which in Wales was called a ‘gwely,’ the wergeld was inherited by all persons who could trace any kind of direct descent, however remote, from a common ancestor of the original receivers of the wergeld. This law seems to us to reflect an ancient system of communistic ownership in movable property amongst the Germans. Indeed we may infer the existence of such a system from the account which Caesar[26] gives of the pre-Christian Germans. Even in the time of Tacitus the arable land of the Germans had not yet become private property.[27]

It is in this common control, or common ownership, of wergeld that we may find the explanation of the absence of wergeld-payments for homicide within the clan. Seebohm, speaking of the Welsh system, says[28]: ‘A murder within this wider kindred was regarded as a family matter.... There was no blood-fine or _galanas_ within the kindred.’ We shall find at least one illustration of this important principle in the _Iliad_ of Homer.[29] It is not a complete explanation of the principle to assert, as Fustel de Coulanges would assert,[30] that the kin-slayer had offended his domestic gods and that no payment could permit the continued presence of the murderer at the ancestral hearth fire in which the life of a kinsman had been violently submerged. In the phratry different clans had a common worship, and the murderer who paid wergeld joined in that worship. We agree with Coulanges that the attitude of the domestic gods towards kin-slaying differed from that of the phratry-gods towards ordinary homicide. But why? Because primitive man creates gods in his own image and endows them with his own emotions. It is with man, not with gods, that the ultimate explanation lies. The real explanation of the principle is to be found, we think, in a tradition ultimately resting on the common ownership of property.

Accepting this principle, we can understand more easily the punishment of kin-murder in tribal society. There are only three alternative penalties to wergeld: exile, bondage (or servitude) and death. It is natural to assume, and it has been rightly maintained,[31] that death was a loathsome penalty in days when relatives alone could avenge. It was therefore rarely, if ever, exacted. Bondage or servitude also, though sometimes found as a punishment for homicide,[32] would naturally be avoided as a sequel to kin-murder. There remains only the option of exile. Like Cain, the slayer of his brother, the kin-murderer must wander over the wide earth.[33] Expelled from his clan, his home, his property and his gods, he goes forth to slavery or to death in other lands. As a French writer puts it, ‘Alone, he has arrayed against him the universe.’[34]

When homicide occurred between members of different clans, death was never inflicted on the slayer, except in the last resort. It was, perhaps, in order to avoid this fate, that the slayer sometimes fled into exile. But it is doubtful if his flight cancelled any part of the wergeld except his own individual share, or the ‘spear-penny’ which he was expected to collect, if he was poor. It is certain however that the life of the slayer was never exposed to danger from the relatives of the victim so long as he remained in exile. That there were variations in the matter of accepting exile as part-payment of wergeld will be obvious from the following facts which we cite also as illustrations of the survival of wergeld in a modified form under feudal or ecclesiastical rule.

In the _Canones Wallici_, a code of laws which operated in Wales in the seventh century A.D., we find[35] that the slayer pays half the total wergeld, and his relatives pay half. The wergeld at this time consisted of three male slaves and three female slaves: if the slayer went into exile his half was cancelled, but his relatives had still to pay their half, or to follow him into exile. In the Burgundian homicide-laws of the fifth century A.D. we find[36] that the penalty for the murder of a freeman was death. The older wergeld penalty, which was now abolished for murder, was however retained in a certain form for minor degrees of guilt. Thus, for manslaughter, we have a list of blood-ransoms arranged according to the rank of the victim: for the unintentional slaying of a noble, the penalty was a payment of 300 solidi: for that of an ordinary man, 200 solidi, and so on. For slaying a person in self-defence, the penalty was reduced to one-half in each case. Amongst the laws of the early Norman Kings of England we find[37] the following, attributed to Henry I, in which a group of neighbours known as guild-brethren (_congildones_) are compelled to supplement the payments of the kindred. ‘If anyone commit homicide of this kind, let his relatives pay as much wergeld as they would have received if he (the slayer) had been killed: if the slayer have relatives on the father’s side and not on the mother’s, they pay as much as they would have received, that is, two-thirds the wergeld: if the slayer has only maternal relatives, they pay one-third the wergeld, the _congildones_ one-third, and himself one-third: if he has no maternal relatives, the _congildones_ pay half, and himself half.’ The manner in which feudalism gradually substituted the conception of murder as an insult to a king or to a lord for the older conception of it as an injury to the clan is clearly seen in the following law[38] attributed to King Henry I: ‘If the slain man has no kindred ... half shall be paid to the king, and half to the _congildones_ (of the victim).’ In one portion of the Salic law we read[39] that if anyone slays a kinsman and goes into exile, his goods are confiscated to the royal treasury. Feudalism has thus exacted a new penalty which the clan-regime did not exact.

On the other hand we find a diminution in the collective punishment which tribal wergeld carried with it, in the law of King Edmund (A.D. 940-946) which may thus be rendered in modern English[40]: ‘If anyone henceforth slay any man, (I will) that he himself bear the feud unless with the aid of his friends he compensate it with full wergeld within twelve months. But if they will not pay, I will that all the kindred be free from the feud except the murderer, provided they do not afterwards give him food and protection.’ In such laws as these we catch a glimpse of a system of blood-vengeance which once prevailed amongst tribal peoples, but which soon became a mere echo, a phantom shadow of its former self, in the march of mightier movements, in the onward course of civilisation.

We have wandered far afield in the search for definite details of the wergeld system, as we shall look in vain for such details in the ancient literature of Greece, though we can have no doubt that the system prevailed in Greece for many centuries. It is true that in the laws of Gortyn we find[41] a classification of money-payments which were exacted for adultery and seduction at a period which no authority regards as earlier than the seventh century B.C., and which is generally believed[42] to be the sixth or fourth century B.C. These payments varied according to the rank of the offender and of the injured party: and also according to the particular circumstances of the offence.[43] But at the time of the Gortyn laws, Crete had passed out of the stage in which murder was materially compensated. Hence these laws contain no reference to the wergeld system. We must therefore be content to apply to the earliest societies of Greek lands the general principles of the payment of wergeld which we find operative in other tribal countries. We have in the text of Homer unmistakable evidence[44] for the payment of some form of wergeld. The only question that arises is: was this payment a mere sordid termination of a sanguinary feud, such as characterised the Montenegrins up to recent years, or was it a genuine tribal wergeld? Before attempting to answer this question, it will be necessary to examine briefly the nature of the societies which existed in Homeric Greece.