Poine: a study in ancient Greek blood-vengeance

We prefer therefore to suppose that the Ephetae and the Exegetae were for a long time[135] identical. They were both members of a sacerdotal nobility of birth which preserved the oral traditions of tribal law, and expounded these traditions. As these nobles normally supervised the ritual of public sacrifices, they naturally also, after the advent of the pollution doctrine, acquired control of the ceremonial of homicide purgation. Thus, Müller says[136]: ‘The purification of the bloodshedder came under the sacred law of Athens which remained in the hands of the old nobility even after they had lost their political authority.’ The number three applied, apparently, in Müller’s view,[137] to the three chief purifiers or supervisors of the rite of purgation, though Müller is not quite explicit on this matter. But we cannot suppose that this figure limited the number of purifiers at any time.

Solon and the Areopagus

In regard to the question of the Solonian origin of the Areopagus, Gilbert, arguing from Aristotle’s account, holds[138] that the Council of the Areopagus was in existence even before Dracon’s time. ‘The great powers,’ he says, ‘which the Council of the Areopagus possessed in the government before Dracon were considerably curtailed by him ... for whereas the Areopagus before Dracon ... exercised judicial functions ... so long as Dracon’s constitution lasted, that council was merely the guardian of the laws and superintended the magistrates. Dracon transferred the judicial powers which the Areopagus previously possessed to the Ephetae and the Prytaneis.’ This account exceeds, we think, the limits of legitimate inference from the text of Aristotle.[139] We cannot even be sure that the text of Aristotle is trustworthy. The Athenians did not possess any accurate evidence in regard to their early institutions. Müller[140] rejects the view (which is also held by Schömann)[141] that Dracon interfered with the judicial functions of the Areopagus. Pollux[142] states definitely that Solon added the Council of the Areopagus to the already existing Ephetae courts. Gilbert regards this statement as a confirmation of his theory that Dracon created the jurisdiction of the Ephetae. We think it is rather a refutation of it. Plutarch apparently did not believe that an Areopagus court, as distinct from the Ephetae, existed before Solon’s time: for he thinks[143] that a so-called law of Solon which referred to persons ‘condemned by the Areopagus, by the Ephetae, or, in the Prytaneum by the Kings,’ should have read ‘those condemned for such offences as (now) belong to the Areopagites.’

We believe that there was a Council of State which was also a State court, connected with the Hill of Ares (or Areopagus), in Dracon’s time and even before it—but that it was not then distinguished from the Ephetae who, like the Spartan Gerousia, were the supreme Council of the State. When Pollux says that Solon added the council of the Areopagus to the Ephetae, he is not quite accurate. What he should have said—perhaps what he meant to say—was that Solon established a new Areopagus as distinct from what we may call the older Ephetae-Areopagus, and that he gave to this new body judicial and administrative functions. The error of Gilbert (and of Aristotle) lies in their failure to distinguish between the personnel of the old Council and that of the new Council. The old Council was composed exclusively of the old nobility, that is to say, of the Ephetae. It was a select group, within the Ephetae caste, a group, for instance, of nobles who had held executive power. The new Council which Solon created was composed of ex-‘archons’ or ex-magistrates, but the basis on which these ‘archons’ were chosen was essentially different from that on which the Ephetae were chosen. For wealth, not birth, was the qualification which was necessary for the office.

The motive which induced Solon to establish this new Areopagus Council was probably his desire to set up a plutocratic body, surrounded by a halo of sanctity derived from the traditions of the older Ephetae-Areopagus, which would act as a check on the increasing power of a more democratic Council, which Aristotle also mentions, namely the Draconian Senate of 400 (or 401) which was appointed, by lot, from the ranks of all ‘citizens.’[144] It was, we think, this democratic council, or Senate, which threatened most seriously the power of the aristocracy. The wide powers of supervision which the Ephetae-Areopagus possessed were, of course, a valuable possession, but, with the growth of the Senate, the legislative and executive powers, and perhaps even the judicial powers, of the old Council of Noble Elders were endangered. Hence Solon, who was neither a democrat nor an aristocrat, but who was, as we conceive him, a plutocrat, instituted a new plutocratic Areopagus at the expense of the Ephetae on the one hand and of the Draconian Senate on the other. Though he allowed an appellant jurisdiction to the popular Heliastic jurors,[145] the normal homicide jurisdiction remained attached to the court of the Areopagus even though its personnel was now changed, just as in later times it continued attached to the ‘Ephetae’ courts when the Heliasts acquired the privilege of sitting there. The explanation of this strange fact is to be found in the religious doctrine of homicide as a ‘pollution.’ In these five courts alone—the fact that one of them was now a Council does not matter—were homicide trials held at night, in the open air, solemn oaths and imprecations were sworn, and the King-Archon sat without his crown. Solon, then, did not create the court of the Areopagus: he merely changed the personnel of the court. The Ephetae, that is, the nobles, were no longer the judges in that court. According to the literal interpretation of Pollux, we might conclude that there existed in Solon’s time six Athenian homicide courts. But Pollux must have been well aware that the Ephetae (including the Tribe Kings) from Solon’s time onwards functioned only at the four minor courts, which were known as the Delphinium, the Palladium, the Prytaneum, and the court at Phreatto.

Why then, we may ask, did Solon select the Areopagus as the court in which the Ephetae were compelled to give place to plutocratic ex-archons, and why was the jurisdiction of that court, now perhaps for the first time, limited to cases of homicide ‘with malice aforethought’? Müller[146] offers a solution of this problem. ‘The administration,’ he says, ‘of the rites of expiation could not be taken away from the old aristocracy of Athens even when the constitution underwent in other respects a complete change. None but an aristocratic court was competent to pronounce an act of homicide expiable, and itself to preside over the rites of expiation and cleansing. Accordingly, the cases reserved for the decision of that court were those in which a person was accused of unpremeditated slaying—for here expiation came in after the exile; further, where the plea put in by the accused was that of justifiable homicide—in this case there was no punishment ... but still it was necessary, at least in certain cases, that he should undergo purification: further, in case an unpremeditated was followed by a premeditated act of homicide, it being then a question whether expiation was admissible or not: lastly, the formalities observed in trials of the weapon by which blood was shed ... necessarily devolved upon the managers of the ancient rites of expiation. As wilful murder, on the contrary, could not be expiated ... there was no need in this case to refer to expositors of ancient Sacred Law. So that Solon was at liberty here to vest the cognisance of such cases in a corporate body which ... he formed out of the most affluent Athenian citizens who had filled the offices of archon.’

This hypothesis is very ingenious. We have little doubt that there is a large substratum of correctness in its underlying principle—namely the association of the old nobility with ‘purgation’ rites. But surely the court of Phreatto was not based on the probability that purgation would have followed the trial. Again, the Palladium frequently tried cases of wilful murder between metics and between foreigners. These murderers could never have been purged at Athens, since the deed was committed there. Moreover, all these Ephetae courts, except the Prytaneum, could, in all probability, have brought in a verdict of wilful murder, just as the Areopagus could have acquitted the defendant and admitted him therefore to some kind of ‘purgation’ at the shrine of the Semnai Theai. Furthermore, Müller is not quite consistent with himself in associating purgation exclusively with judges as in this quotation, and in maintaining elsewhere[147] that the three Exegetae who supervised those rites were not judges[148] at all. By his own reasoning, therefore, he would be compelled to admit that the Exegetae could have cleansed the accused after acquittal in any court. Again, he holds[149] that in early Attica there was no discrimination between murder and manslaughter, and that the same courts originally tried all these different pleas; but yet he maintains that a certain distribution of functions which was based on this discrimination had already taken place in the time of Solon.

We believe that a discrimination between different degrees of homicide guilt was recognised in early tribal Attica, and that in the seventh century B.C., when a compromise took place between what we may call Apollinism and tribalism, the Apolline religion was compelled by tribal aristocracy to define the kinds of homicide to which purgation could be applied. Moreover, the detailed formulae and ritual of purgation were confided as a secret and sacred trust to this aristocracy. But even within an exclusive nobility there must eventually arise a division of labour. The same nobles who judged a suit might also be appealed to for purgation, and hence they probably found it more convenient to delegate the latter duty to one particular family or clan. Most especially would the Ephetae of the Areopagus, who in those days held in their hands the reins of civic government, have found it difficult to discharge at once the various duties of a Council of State, of homicide judges, and of purgation priests. Hence, therefore, we may assume that the Ephetae-Areopagus limited its activities as a homicide-court and confined itself to charges of wilful murder, of plots to kill, and perhaps also of arson, between the citizens (who were, originally, the nobles), not merely because of the necessity for a division of labour, but also because the Areopagus court was the supreme Council of the State. To the other courts, therefore, fell the duty of trying minor homicide cases, and such cases as were more likely to require purgation. Thus, wilful murder between foreigners was comparatively a minor issue, and was no longer tried by the Areopagus. Such cases were relegated to the Palladium court, perhaps because it lay outside the city.[150] Again, charges of murder which were brought against a person already convicted of manslaughter were naturally tried at Phreatto, as such a slayer was not permitted to land in Attica. It was in some such way as this, we think, that a traditional custom had grown up in regard to the distribution of homicide pleas among different courts in the time of Dracon and of Solon. Solon made the Areopagus the basis for a reform which was directed against the old nobility, partly because it was feasible to introduce innovations into this court with the least possible interference with existing religious traditions, but even more so because the Ephetae-Areopagus was the keystone of the fabric of aristocratic power. Here, despite the advancing influence of the Senate of Four Hundred with its increasing executive and administrative powers, the old nobility retained the strongest outpost of authority in a court which, amidst other privileges, possessed the right of final decision in matters of life and death. This right of final decision was not a privilege of the new Solonian Areopagus—it was transferred to the popular Heliastic courts. The innovations of Pericles and Ephialtes in 460 B.C. reduced the Areopagus almost to the level of a simple homicide court[151]: yet its personnel, which was composed of ex-archons, enabled it as a judicial body to command general respect. But it was, nevertheless, the traditions and the religious procedure of the court which lifted it above the level of the Crush and the Triangle. This theory, which we have propounded, of the origin and evolution of the Areopagus is in perfect harmony with the statement of Demosthenes[152] that: ‘neither tyranny nor oligarchy nor democracy have ventured to deprive this tribunal of its jurisdiction in murder.’ But Gilbert’s theory[153] of Draconian interference with the judicial powers of the Areopagus is not consistent with this statement. The opinion of Pollux[154] and of Plutarch[155] that there was no Areopagus court before the time of Solon contains at least an important element of truth, since it may be taken to imply that the Areopagus of historical times, the personnel of which was composed of ex-archons, did not exist before the time of Solon. The pre-Solonian Areopagus was not in our opinion really distinguishable from the Ephetae. Hence, there is a sense in which the statement of Pollux is true, that in Solon’s time ‘the Ephetae sat in the five murder courts.’[156]

We have now sufficiently indicated the methods and laws of Greek blood-vengeance in the post-Homeric epoch and in historical times. We may, therefore, proceed to examine and, if possible, to explain the problems of blood-vengeance which are presented by Attic tragedy. In our account of Homeric homicide we found it necessary to distinguish between a military dominant Achaean caste on the one hand, and a subject Pelasgian tribal people on the other. In our exposition of post-Homeric and historical developments we found it indispensable to distinguish the post-Achaean and Hesiodic periods from the ‘pollution’ era and to regard the final evolution of historical Greek murder law as a resultant compromise between divergent forces. When we turn to the legends which are given by the Attic tragedians, we must be prepared to consider the operation of several distinct alternative factors in the creation of these legends. Some legends are presented to us in a form which seems quite consistent with the period to which they refer, either because they came down comparatively unadulterated through the ages or because the dramatist consciously and correctly archaised. Other legends, however, become so adulterated in course of time that they are difficult to analyse and their evidential value is very small. Again, different myths about the same event assumed, in different places and at various times, forms which were legally, at least, incompatible. It was open to the dramatists to make a selection from amongst the most suitable varieties of the legend; but they naturally aimed at consistency in characterisation, rather than at harmony in their legal conceptions. As a result of the variety of inconsistent legends it was obviously impossible for those dramatists to fulfil the maxim of Horace[157]: