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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.