Poine: a study in ancient Greek blood-vengeance

In discussing the trial-scene which is found in Homer’s description of the Shield of Achilles,[1] we were compelled incidentally to give, in anticipation, the main results of our inquiries as to the existence, in Homeric Greece, of tribunals for the trial of homicide. Previous writers on the subject, who are unaware of the differences in the organisation and nature of Pelasgian and Achaean societies, have naturally maintained that homicide in early Greece was entirely a ‘private’ affair and that trials for homicide only arose when a post-Homeric conception of murder as a ‘pollution’ compelled an investigation on the part of kings and nobles who were anxious to avert the wrath of the gods. Thus Bury says[2]: ‘This notion of manslaughter [i.e. homicide] as a religious offence necessarily led to the interference of the State. For when the member of a community was impure, the stain drew down the anger of the gods upon the whole community, if the unclean were not driven out. Hence it came about that the State undertook the conduct of criminal justice.’ Jevons[3] propounds a similar view, though he apparently finds more difficulties in the Homeric text. ‘There was, indeed,’ he says, ‘no State power to which the relatives of the deceased could appeal for redress, much less was there any State power which of its own motion undertook to apprehend and punish the murderer. But in Homeric times a feeling was gathering that murder was an offence against the members of the community in their collective capacity.’ Bury’s general view-point is that homicide was the only crime which called for State interference, and that there was no such interference before the doctrine of pollution arose. Other ‘crimes,’ he thinks, continued to be ‘private’ affairs until the centralisation of government brought it about that the injured party, before punishing the offenders, had to seek State authorisation in the form of trial, but in such cases the State never acted on its own initiative or responsibility. ‘It must be borne in mind,’ he says,[4] ‘that, in old days, deeds which injured only the individual and did not touch the gods or the State were left to the injured person to deal with as he chose or could. The State did not interfere. Even in the case of blood-shedding it devolved upon the kinsfolk of the slain man to wreak punishment upon the slayer. Then, as social order developed along with centralisation, the State took justice partly into its own hands: and the injured man, before he could punish the wrong-doer, was obliged to charge him before a judge, who decided the punishment. But it must be noted that no crime could come before a judge unless the injured person came forward as accuser. The case of blood-shedding was exceptional, owing to the religious ideas connected with it. It was felt that the shedder of blood was not only impure himself, but had also defiled the gods of the community: so that, as a consequence of this theory, manslaughter of every form came under the class of crimes against the religion of the State.’ Bury does not define precisely the time at which homicide became a religious offence, but from this and other references we assume that he regarded the period as post-Homeric. Thus he says[5]: ‘According to early custom which we find reflected in Homer, murder and manslaughter were not regarded as crimes against the State, but concerned exclusively the family of the slain man.... But gradually, as the worship of the souls of the dead and the deities of the underworld developed, the belief gained ground that he who shed blood was impure and needed cleansing.... This notion of manslaughter as a religious offence necessarily led to the interference of the State.’ We admit, of course, that there could not have been State trial before the State came into being; but the notion that there were no ‘trials’ before the days of ‘State trial’ is, we think, one of the delusions which modern minds have derived from the legacy of feudalism. Bury admits the existence of religious courts before the period of State courts, but he apparently forgets the courts of the clan, of the phratry, and of the tribe.

It is frequently suggested that the right of sanctuary is the ultimate origin of the trials and negotiations which came to be associated with homicide. ‘Among the Greeks,’ says Gilbert,[6] ‘when blood was shed, the relatives of the murdered man usually set themselves to wreak vengeance on the murderer. If he did not quit the country immediately, he could only secure himself by taking refuge in a sanctuary until he had made compensation to the relatives of his victim. From his sanctuary, protected by the right of asylum, he could enter into negotiations with them as to what compensation must be paid. When the State took into its own hands the regulation of vengeance for bloodshed, it respected the right of sanctuary in so far that the three places[7] of trial were connected with three sanctuaries.’ Now we can find no evidence for the operation of a right of sanctuary in Homer. Hence this theory of Gilbert would compel us to believe that not only murder trials but even wergeld payments were of post-Homeric origin!

Glotz,[8] in a passage which we have already quoted, refuses to see in the subjugation of blood-lust which is involved in the acceptance of wergeld, any suggestion of the interference of ‘social justice,’ whether to impose or advise a settlement, or to fix the amount of compensation. He holds, moreover, that in no case is exile authorised: that it is always a flight from the natural penalty, which is death. ‘L’exil,’ he says, ‘dans ces conditions, n’est pour le meurtrier ni une peine ni un droit, mais une mesure de prudence ... on ne peut obtenir l’autorisation de s’en aller tranquillement ni de revenir jamais.’[9] It is only, he implies,[10] when the idea of pollution abolished the arbitrary nature of State jurisdiction that the offended party was forced by public opinion to accept the customary wergeld. It is only then that a person wrongly accused could appeal to judges who must hear the case. Thus he says: ‘C’est un fait assez fréquent dans l’histoire qu’à l’origine de la législation sociale il y ait une révolution religieuse ... mais la révolution qui en résulta fut diffuse. Elle ne fut personifiée que par un dieu. Vers les temps où la Grèce commence à se purifier et à demander au ciel un supplément de justice pour la terre, elle voit sur son horizon rayonner d’une lumière inconnue le sévère et doux guérisseur du mal et de la souillure, Apollon.... Il exige que tout crime soit expié et s’en prend au peuple qui manque à ce devoir.... L’expiation, il la fait consister, chaque fois qu’il peut, à élever un sanctuaire: par là il donne aux dieux leur part de la ποινή et aux juges la première idée de l’amende, en même temps qu’il multiplie les lieux d’asile et fait servir l’homicide même à sauver des vies humaines.... Tandis que le droit religieux absorbait la plus grande partie de la θέμις familiale pour la transmettre à la δίκη sociale, la juridiction de l’Etat perdait son caractère d’arbitrage.... Sous la pression de l’opinion publique ... l’offense fut tenu de plus en plus strictement d’accepter une transaction aux conditions modérées de la coutume ... l’offenseur qui trouvait exorbitantes les exigences de l’offensée put rejeter une αἴδεσις trop onéreuse: l’innocent qui ne croyait devoir aucun dédommagement put refuser le paiement d’une ποινή injuste, sans craindre la mort ou l’exil.... Le recours en justice, de facultatif qu’il était, devint obligatoire par sa fréquence même. A ce moment, le tribunal des gérontes, sentant son pouvoir plus ferme, franchit par un empiètement fatal et naturel les limites étroites où sa compétence était primitivement circonscrite.... La juridiction criminelle est créée.’

We shall see later[11] how impossible it was that wergeld could have continued to exist in days when the murderer was polluted. We admit that the Apolline murder-code did absorb much of the clan-customs in regard to homicide (la θέμις familiale). But from the account which we have given of the wergeld system,[12] it must be obvious how very non-arbitrary was the jurisdiction of the clans. In our view, the evolution of early Greek judicial authority is not a transition from a crude arbitrary local jurisdiction to an efficient central compulsory jurisdiction, but rather a gradual extension to wider areas, in accordance with increasing political synoekism, of the judicial functions which had been previously discharged with equal authority within smaller areas.[13] The court of Elders, to which Homer refers in his description of the Shield of Achilles, was, in our opinion, a city-state court. We may call it merely a city court if we wish to retain the word ‘State’ to denote a political unit exercising authority over a substantial territorial area, and it is in this sense that the word ‘State’ is generally used: but F. de Coulanges has shown that the difference between the ancient ‘city’ and a ‘State’ was one of degree, not of kind. The ancient ‘phratry’ was, he says,[14] ‘a small society modelled on the family.’ Maine,[15] speaking of the primitive Indian Village Community, says: ‘The Community is more than a brotherhood of relatives and more than an association of partners. It is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties.’ So, we think, the court which Homer describes had the highest jurisdiction in all matters of serious dispute, whether within the city proper or in rural areas which were politically united with the city. The elders of the trial-scene were, we think, tribal chieftains, like the Attic tribe-kings (φυλοβασιλεῖς), and their main function was to arbitrate, but with full authority, in cases of dispute between people of different clans or phratries. Inside the clan, and probably inside the phratry (a group of neighbouring clans), similar assemblies of interested and responsible persons would have decided disputes between members of their associations. The only judicial change which synoekism and the growth of State-power involved was, therefore, an extension of the area of jurisdiction, and an increase in the number of people who had the right, if not the duty, of referring their disputes to a common authority. But this new central court of justice was neither incompatible with, nor destructive of, the more primitive local courts. Coulanges[16] maintains that Plutarch and Thucydides are wrong in the assertion that Theseus abolished the local magistracies of Attica. Gilbert[17] admits that the Attic tribe-kings still functioned as judges in inter-tribal disputes, in historical Athens. It is quite possible that, in early times, there was no right of appeal outside the tribal court for members of the same tribe. There is a law[18] of an Anglo-Saxon king of tribal England which decrees: ‘Let no man apply to the king unless he may not be entitled to justice within his “hundred.”’

The judicial system of the Homeric epoch is complicated by the presence of the quasi-feudal Achaeans, who sometimes hear appeals in cases of ‘petty family disputes’ among the natives, but who, amongst themselves, obeyed the short and swift decrees of military courts or councils of war. We have said[19] that there is a suggestion of Achaean arbitration in the Euripidean legend in which Hecuba appeals to Agamemnon to justify, after the event, her punishment of Polymestor, the slayer of her son.[20] Assuming the view of Leaf[21] that the Achaeans did not interfere with the ‘group-system’ of the Pelasgians, we may for the moment ignore the presence of the Achaeans, though it is the predominance of that caste in Homer which has misled modern scholars in their opinions of the early Greek judicial system. We shall now examine some interesting survivals of clan-courts in the days of Plato and Demosthenes, so that we may realise more clearly the nature and the functions of the local courts of the ‘group system,’ courts which Homer almost ignores, which he would, perhaps, have entirely omitted to mention, if the Pelasgian craftsmen who fashioned the ‘Shield of Achilles’ had not engraved upon the Shield a picture of a Pelasgian Court of Elders, which was a familiar event in the everyday life of the cities and tribes of the subject-race.

Historical Survivals of Clan Courts

The first instance of ‘survival’ which we shall cite is mentioned by Glotz,[22] and in justice to him we must point out that we differ from him, not in regard to the question of the existence of clan-courts, but in regard to the nature of their judicial functions in the matter of homicide. Glotz is not aware of the distinction between the Pelasgians and the Achaeans, or of the importance of the group system in the Pelasgian civilisation. He admits that there existed within the clan a regular tribunal, composed of heads of families, who consulted and decreed, with absolute authority, on all matters affecting property, such as adoption, inheritance, expulsion, and marriage. He quotes Plato[23] for a procedure which, he presumes, was a general characteristic of the clans. We have seen that homicide, in default of wergeld, was commonly punished by exile or banishment. The following is Plato’s description of an expulsion from the clan: ‘For him upon whom there has come a desire, by no means fortunate, whether just or not, to release from relationship to himself one whom he has begotten and brought up, let it not be lawful to do this upon slight grounds or without delay; let him first bring together his own relations as far as his cousins, and also those of his son on the mother’s side, and let him accuse his son before them and prove that he deserves completely to be expelled from the family—and let him allow his son to prove equally that he does not deserve to suffer anything of the kind; and if the father can persuade and secure the votes of more than half all the relations (father, mother, son, and minors not voting),[24] then let it be lawful for the father to renounce his son: but otherwise not.’ It is most important to note here the reference to the presence of the son’s maternal relatives, for this implies an assembly of the clan or wider kindred, not merely of the gwely or descendants of a common living ancestor. It was this wider kindred which paid and accepted wergeld, even though they had not all a right of succession to family property. In the early clan system,[25] wergeld was part of the common stock which was inherited by all the wider kindred, and therefore decrees of expulsion, such as were pronounced, for instance, in default of wergeld payment, were matters for the decision of the whole clan rather than for those of the gwely or the ‘family.’ That such a procedure should have survived in Plato’s time, when property had to a great extent become ‘private’ in the modern sense, and when the political power of the clans had long since vanished into thin air, shows at once the tenacity of clan custom and the significance of Plato’s account as an argument from survivals.

Plato has another reference to a clan court, to which Glotz has not referred and which seems to us to furnish a splendid illustration of the manner in which minor issues, which affected merely the members of a local kindred, remained within the scope of clan jurisdiction even in historical Athens. We shall see later[26] that, owing to religious influences, kin-slaying became too serious a matter for the adjudication of clan tribunals from the seventh century B.C. onwards. Even minor cases of bloodshed such as ‘wounding with intent’ had probably, in historical times, been transferred to the jurisdiction of an Attic state court, called the Areopagus.[27] The clan court to which Plato refers, in the present instance, seems to have had power to try and to punish the wounding of a kinsman by a kinsman, in a passion; it is presumed, however, that the wound was not sufficiently grave to interfere with military service. Plato says[28]: ‘If one kinsman[29] wounds another ... let the heads of families[30] (i.e. the elders) and the male and female kindred, as far as the cousins[31] on the male and female side, come together and having tried the case deliver the offender to his natural parents to fix the fine[32]: and if the fixing of the fine be a matter of doubt, let the kindred on the male side fix the fine definitely; and if they are unable to decide, let them eventually refer the matter to the “guardians of the laws.”’ Plato goes on to say that where children wound their parents (presumably in a passion) the judges must be over sixty years of age, none of them must be a relative of the offender, and they may fix the punishment, which may include death.

We have already hinted[33] that the discrimination between degrees of guilt in homicide cases, which is extremely minute in the laws of Plato, and which is present in a cruder form in the Draconian code, finds its ultimate origin in the old customs of tribal life. Bearing this hypothesis in mind, we are not surprised to discover that such matters as wounding without intent, which is not mentioned in Dracon’s code and which therefore was not a matter for compulsory prosecution in Attic state courts, can nevertheless be subjects for adjudication in the courts of the clans. Of course, the ‘guardians of the laws’ whom Plato mentions are technically officers of Plato’s ideal State, but the main factors in the trial are doubtless derived from actual clan tribunals which operated in Plato’s own experience, unless the ‘guardians of the laws’ are to be interpreted as symbolical of the appellant jurisdiction of the State. Glotz, of course, thinks[34] that at no time was kin-bloodshed a matter for Greek State courts, but we shall see, later, that this view is most probably incorrect. Plato insists that the judges who condemn to death the child who is guilty of wounding its parent must not be akin to the child. This principle need not imply that the judges must have been State judges. In the phratry and in the tribe one could find many men over sixty years of age who were not akin to such an offender. The fact that these judges in historical times had the power of condemning an offender to death is probably to be attributed to a survival of tribal jurisdiction in cases where that jurisdiction had not been definitely arrogated by the State.

A further instance of the survival of clan and phratry courts may be found in the law of Dracon[35] which prescribed a collective decree of ‘appeasement’ in cases of involuntary homicide. The law may be freely translated thus: ‘Let there be “appeasement” if there is a father or brother or sons (of the victim): let all agree or let one objector hold the field; if there be none such, let all the kinsmen within the degree of cousin (be appeased) if all consent to be appeased; if there are none of these, and the slayer slew involuntarily, let ten phratores be appeased if all consent to be appeased.’ The procedure here prescribed applied only to involuntary homicide. Before the ‘appeasement’ a period of exile had to be completed by the slayer.[36] It is not a case of accidental homicide, which involved no punishment.[37] Glotz[38] argues that the phrase ἅπαντας ἢ τὸν κωλύοντα κρατεῖν implies a universal clan consent; but it is obvious that the law is satisfied by the consent of groups within the clan or (in default of these) of the consent of ten phratores, who were members of the same local religious union. The only point we wish to make here is that in this survival of the consent of the kindred for the abolition of a feud caused by involuntary homicide we have all the elements which would have constituted a homicide tribunal in days before the encroachment of State power. It can only be a survival of a wergeld system of vengeance, as in this system alone is there found a minute arrangement for payment and receipt according to the different degrees of kinship. A similar law of clan-consent governed the rights and duties of burial, even in the time of Demosthenes, and is appealed to as evidence for the right of succession to property. Demosthenes thus quotes[39] a law of Solon: ‘it shall not be lawful for any woman under sixty years of age to enter into the chamber of deceased or to follow the corpse when it is carried to the tomb except those within the degree of cousins’ children.’ A law of Dracon[40] decreed that after burial of a murdered man ‘proclamation shall be made to the homicide in the market place by all the relatives within the degree of cousin; and cousins and children of cousins and sons-in-law and fathers-in-law and phratores shall prosecute.’ Here we have a clear picture of the solidarity of the clan. The presence of the φράτορες, too, is significant. They were strictly outside the clan, as each phratry included members of neighbouring clans who were bound together by a common extra-clan worship. In this co-operation of the φράτορες we plainly see a natural basis for discussion and negotiation in blood feuds between different clans; this co-operation extended also, in certain cases, to the tribe and, after a coalition of tribes, to the ‘ancient city.’[41] Thus Glotz[42] rightly says: ‘La famille fictive suit les principes de la famille naturelle.... On dirait que le groupe a conservé, en souvenir d’une parenté primitive, en vertu d’une parenté théorique, un droit éminent sur les biens de chacun.’

So Fustel de Coulanges points out that just as each gens[43] or clan had its own tribunal and chief, so also the phratry[44] had its own phratriarch, assemblies and tribunals. ‘It was,’ he says, ‘a small society modelled on the family,’ and the tribe[45] had, as chief priest and judge, a tribe-king (φυλοβασιλεύς), and held assemblies whose decrees bound all tribesmen. The nature of such tribal conventions and decrees is further illustrated by a passage in Demosthenes, to which Coulanges refers.[46] In a speech against Theocrines,[47] Demosthenes narrates how the fellow-tribesmen of Theocrines convicted him of the embezzlement of tribal funds and punished him by a fine; and he was forbidden by State law to prefer any indictments against any citizen until he had paid this fine, as in the meantime he was regarded as a State debtor. The decree was moved against him at a tribal meeting by a certain Scironides and the fine proposed was seven minae.[48] From such passages as this Coulanges[49] argues that Plutarch and Thucydides are mistaken when they say that Theseus destroyed the local magistracies after the synoekism of Attica. This Demosthenic passage indicates clearly the survival of courts whose primeval jurisdiction had been largely superseded by that of the State.

Apart from those arguments which are based on the survivals of tribalism, it is logically probable that since homicide in Pelasgian society was normally atoned for by the payment of a collective wergeld penalty, which affected the property of at least two clans, and since the judicial machinery of Pelasgian tribes was such that it would ordinarily have been set in motion for adjudication in disputes regarding property, homicide was therefore a fit and proper subject for investigation by such tribunals.

The Shield of Achilles and the Royal Judges

Homer, in describing the Shield of Achilles, happens to mention a court which is appealed to in a dispute concerning wergeld, and such a reference is as complete a confirmation of our hypothesis as can reasonably be expected.[50] We have already given what we consider to be the correct interpretation of this passage. The Elders were Pelasgian tribal chieftains, who frequently came together and sat upon polished stones, ‘in a sacred circle,’ holding in their hands the sceptre of authority. It is quite probable, as Leaf[51] suggests, that two of the Elders acted as ‘advocates,’ and it is almost certain[52] that the two talents of gold which are mentioned were a kind of advocate’s fee which was deposited by both litigants in order to encourage the advocates to give a proper exposition of the unwritten code of the tribes. The fact that the dispute concerned the payment of wergeld, and not the reality of guilt, does not warrant the conclusion that the court of Elders could not have functioned, if it were necessary, as a murder court. It is true that in the group system of primitive tribal life there was never very much difficulty in establishing the identity of the murderer; but it is equally true that if an accusation was challenged or disputed, there must have existed a court whose decision would have been accepted as final: we cannot conceive an entire clan agreeing to pay the wergeld of 120 cows if the person who was accused of homicide had assured his own clan court that he was innocent. Now the Elders of the Homeric trial-scene would normally have adjudicated in cases of homicide between the members of different tribes; and it is possible that they would have heard appeals from tribal or phratry courts, in the event of disagreement about inter-tribal cases. The Elders are therefore the real δικασπόλοι βασιλεῖς of the Homeric society. The fact that the Achaean kings are credited with this title in Homer does not prove that they ever functioned as such. Leaf[53] thinks that they might have consented to hear appeals in isolated instances, but the title δικασπόλος is one which could frequently have been applied without very much significance to Achaean feudal lords who possessed a theoretical supremacy in Greek jurisdiction. Within the Achaean caste, these lords revealed no interest nor did they acknowledge any obligations in the judicial aspect of homicide. On the contrary, they frequently gave their daughters in marriage to murderers! We think, therefore, that Leaf would not now find so much difficulty in the absence of a ‘king’ in the Homeric trial-scene as he did in 1883.[54] It is not certain, of course, in what Greek areas Pelasgian groups still retained Pelasgian kings. The Minoan kings of Mycenae, Lacedaemon, and Thessaly, and other districts disappeared in the Achaean conquest. Still there survived a few Minoan or Pelasgian kings who lived in friendly alliance with the Achaeans, and who could still be truly described as defending ‘the Zeus-given θέμιστες.’ But it is also true that at the time of the Trojan war the Achaean lords would have come to be regarded as the ‘heaven-sent guardians of law,’ through the mere fact that they were ‘kings.’

Maine[55] thinks that the θέμιστες (customs) of the Homeric age were isolated judgments delivered without any orderly sequence or precedent. But Glotz[56] insists that the word θέμις is peculiarly applicable to tribal custom, as opposed to the terms δίκη and νόμος. We believe that the word generally refers to Pelasgian traditions.

In the Iliad[57] we are told that Zeus is wrathful against men who judge crookedly in the Assembly, and drive out Justice. Who are these men? They may, of course, be Achaeans, but we think it more probable that they are the judges, and therefore the chiefs, of Pelasgian tribes—judges whose tribal successors were accused of corruption in the days of Hesiod,[58] when the Achaeans were no more. In Homer two talents of gold were offered as a reward for an advocate’s successful pleading, and the advocates were probably chosen from the same caste as the judges. From this it is but a short step to bribery and the corruption of justice. Hence we can understand the words of Hesiod: ‘The people pay for the folly of their kings, who with ill thoughts wrest aside judgments, declaring falsely. Beware of these things, ye kings, and set straight your speech, bribe-devourers, and utterly forget crooked judgments.’ And again[59]: ‘There is the noise of the haling of Justice wheresoever bribe-devouring men hale her, adjudging dooms with crooked judgments. And she followeth weeping, clad in mist and fraught with doom, unto the city and the homes of men who drive her forth.’ In ancient society social law is inseparable from religion; as Coulanges puts it[60]: ‘To disobey law is sacrilege.’ The law was regarded as the exclusive secret of the hereditary nobility,[61] who alone could interpret it and whose decision was final. The opportunities for profit-making and bribery in such a system must have been innumerable. In later times when democracy asserts itself the less-privileged orders,[62] championed sometimes by tribal or quasi-feudal kings, sometimes by usurping tyrants, equipped with mercenaries, compelled the ‘Elders’—that is, the old patriarchal sacerdotal nobility—to codify their laws and to admit to judicial power the ‘new nobility’ of wealth and the ignoble proletariat. The old nobility came then to be distinguished for the integrity of its judicial character, partly because it had lost its monopoly of power, partly because corruption could no longer be practised with impunity.

Origin of Homicide Courts

From what has been already said[63] it must be sufficiently clear what was, in our opinion, the origin of murder-trial in early Greece. The local courts of clans and tribes constituted a nucleus for the development of central State courts when civic groups emerged into being through political synoekism. Homicide was a proper subject for litigation, in the tribal wergeld system, simply because the normal penalty involved a transfer of collective property or the expulsion of a tribesman. If then phratry-courts had to decide issues between different neighbouring clans, if tribal courts had to decide disputes between clans of widely separated localities, is it not natural to suppose that the State courts of synoekised areas would have adjudicated in disputes between members of different tribes? Hence the judicial assembly of tribe-kings (φυλοβασιλεῖς) constituted a more or less important State court from the most remote antiquity. In historical Athens, Aristotle[64] assures us that they still judged, at the Prytaneum, indictments concerning animals and inanimate objects (δικαὶ ἀψύχων). Glotz[65] says of the Prytaneum Court: ‘Il semble même qu’il ait été le premier et longtemps le seul tribunal d’Athènes.’

Let us now consider some other hypotheses as to the origin and evolution of homicide-courts. Glotz and Bury are in agreement in supposing that wergeld was abolished, not by the Apolline religion, but by the establishment of State power: though, in so far as it was the Apolline doctrine of ‘pollution’ which compelled the State to interfere, they would be compelled to admit that Apollinism contributed to the abolition of wergeld if it did not directly abolish it. Glotz, in particular, is anxious to establish a novel theory of his own,[66] to the effect that it was Solon, not Dracon, who abolished wergeld! The only reason he gives is that Solon’s general policy was opposed to clan-jurisdiction or clan-power exercised to the detriment of the State. This opinion we shall discuss in its proper place.[67] But there is an important element of truth in the Glotz-Bury position which must be clearly indicated. We have said that the original Pelasgian State courts very probably heard disputes in regard to homicide, at least between members of different tribes. Now, tribal society is based on a close exclusive aristocracy of birth. Strangers may be received with temporary hospitality, but their adoption into the permanent life and privileges of the tribe was a matter of great difficulty.[68] Every tribe contained a gradually increasing number of ‘hangers-on,’ lackland men, bondsmen, serfs, and casual vagrants, who may be regarded as the nucleus of the plebeian movement which in many cases culminated in democracy. The growth of commerce in the seventh century, the invention of coinage, migration and colonisation led to the rise of a new aristocracy of wealth[69] as distinct from birth. Many of the ‘new men,’ who now were very powerful, did not belong to the old aristocratic tribes. In cases of homicide between members of this new group, who would act as judge? The tribe-kings regarded such a group as entirely outside their caste. For such a group there was neither religion nor law nor justice. Hence they probably resorted to what we have described as unrestricted vendetta. It was precisely at this juncture, as we think, that the new religion of Apollo, with its quasi-Asiatic doctrine of murder as a ‘pollution,’ came to Greece. Murder now became a ‘sin’ against the State gods. If unpunished, it brought upon the State the anger of its gods. State courts were now compelled to sit in judgment on all cases of homicide which occurred within the State: no longer were the tribes permitted to adjudicate for intra-tribal slaying. They could still hold ‘minor investigations’ at their local Prytaneum; though we cannot agree with Müller and Philippi in describing as a ‘mock-trial’[70] their investigations into the guilt of animals and inanimate objects (δικαὶ ἀψύχων). But the man ‘who shed man’s blood’ had now to appear before the central tribunals of the State: all men had to appear, not merely the aristocratic heirs of tribal privilege. This, in our view, is what happened in the seventh and sixth centuries B.C. In the circumstances of the time it was an event of incalculable utility to Greek societies. But the lustre of the event and the chaos which it terminated have dazzled the minds of modern thinkers so much that they forget the older and, for the period of its power, the equally effective vigour of the courts of the tribal State. Thus, what Glotz and Bury have attributed to the evolution of State power is really to be attributed to the new non-tribal democracy and the religion of Apollo.

The view of Gilbert and Köhler,[71] and, we may add, of Müller,[72] which places the origin of trials for homicide in the conception of bloodshed as a sin and in the respect for sanctuary, remains for discussion. Müller is, we think, mistaken in supposing that bloodshed was sinful from the earliest dawn of Greek society, and that wergeld originated in the purgation-ritual.[73] This opinion we shall criticise at length in the next chapter. Gilbert’s conception that the right of sanctuary existed from immemorial antiquity and was a necessary preliminary to wergeld negotiations cannot be harmonised with the evidence of the Homeric poems or with the customs of other analogous tribal peoples. We shall find, indeed, in Euripidean legends evidence of the efficacy of sanctuary to protect[74] the suppliant, but we also find evidence that it was potent merely to delay[75] the inevitable doom. In Homer there is no suggestion that an Achaean would have ever heeded, or that a Pelasgian would have ever needed, such a refuge. Quick vengeance, permitting, as Demosthenes says,[76] no κρίσις between φόνος and τιμωρία, is not a characteristic of the tribal wergeld system. In regard to later times, Gilbert says that ‘when the State took into its own hands the regulation of vengeance for bloodshed it respected the right of sanctuary in so far that the three places of trial were connected with three sanctuaries.’ He refers, we presume, to the Attic courts known as the Areopagus, the Palladium, and the Delphinium. But the connexion of these courts with local temples may be otherwise explained. Coulanges[77] points out that the assembly-place of the Roman Senate, which was a judicial as well as an administrative council, was always a temple. We shall see later that the murderer in the ‘pollution’ period was debarred from any contact with a temple under most serious penalties. We must then defer to a subsequent stage of our work[78] the final refutation of Gilbert and of Müller and the complete exposition of our own hypothesis as to the origin and evolution of the Attic murder courts.