We have seen that the restored Draconian inscription contains no reference to wilful murder. Demosthenes quotes a law which merely mentions the crime and which is mainly concerned with the allocation of trials for wilful murder to the Areopagus court which normally had jurisdiction in such cases. We shall discuss this law when we come to describe the Athenian homicide courts. The actual penalties for murder can only be inferred from the wording of other Draconian laws, and from other sources, such as Plato. Thus we may infer from the law[106] which declared inviolable the person and property of involuntary slayers, who are described as ‘those who have gone into exile and whose property is not confiscate,’ that in the graver kinds of homicide, such as murder, the criminal’s property was confiscated to the State. Again, from the law[107] which forbade the slaying of a murderer ‘whilst he keeps away from the markets on State-boundaries and from public games and Amphictyonic festivals,’ and from the further law[108] which permitted the slaying of a murderer found, after conviction, in his native territory, we may infer that death was the normal penalty for any murderer who did not go into perpetual exile. Demosthenes, in the speech against Meidias,[109] says that ‘the laws punish those who have slain with intent by death or (καί) perpetual exile and (καί) confiscation of property.’ Plato[110] is quite lucid in his account of wilful murder, but he omits to mention confiscation of property. ‘Whoever,’ he says, ‘deliberately and unjustly shall kill with his own hand any of his fellow citizens (τῶν ἐμφυλίων), let him be debarred from civic and religious privileges (τὰ νόμιμα) and let him not “pollute” the temples or ports or other public meeting-place ... let him who is convicted pay the penalty of death and let him not be buried in the native land of the slain [or in his own, if that is different]: but if he goes into exile without wishing to challenge a verdict (κρίσιν ὑποσχεῖν) let him remain in perpetual exile.’ Demosthenes[111] implies that the last moment at which the murderer could flee was ‘after the first speech’ at the trial.[112] Pollux[113] clearly means to say the same thing, though the omission of the tiny negative μή has annoyed the commentators.[114] ‘The Areopagus,’ he says, ‘judged cases of slaying and wounding with intent (to kill) and arson (with intent to kill?) and (the administering of) drugs if one intends to kill in administering (them).’ So far his words are identical with those of the ‘Draconian’ law, as it is given by Demosthenes. He continues: ‘There took place a preliminary oath (διωμοσία), and after this the trial ... and after the first speech it was lawful (for the defendant) to go into exile if anyone had slain his parents’ (εἴ τις γονέας εἴη ἀπεκτονώς). When we discuss presently[115] the Attic law of parricide and kin-slaying, it will perhaps be more obvious that Pollux must have written εἰ μή τις γονέας εἴη ἀπεκτονώς, ‘unless a man had slain his parents.’ The ‘Draconian’ law concerning the Areopagus will be discussed later, in our chapter on the Attic murder courts. We need not enter into the details of the preliminary accusations, the investigation before the Archon Basileus, and the three monthly trials which preceded the final trial and the verdict. Such details, if not already referred to, may be found in all the ordinary books of reference.[116] But there is one question which merits a brief examination at this stage: namely, the question whether the death penalty, in cases of wilful murder, cancelled or obviated the confiscation of the murderer’s property to the State.
We have seen[117] that in the wergeld system of the tribes, the death of the slayer generally affected the payment of wergeld, though custom seems to have varied between the cancellation of the whole wergeld and the cancellation of the murderer’s share. But we do not think, as Glotz appears to think, that confiscation took the place of wergeld. The purgation-rites for homicide, says Glotz,[118] caused the creation of sanctuaries and gave to the gods their share of the ποινή. We have seen[119] that in tribal societies which practise wergeld there was a saraad or honour-price, quite distinct from the galanas or wergeld proper, and it was this honour-price which we consider to have been the indirect source of the later penalty of confiscation. In the evolution of strong central civic government, or of theocratic power, this element could have been, and usually was, retained, when wergeld was abolished. But ‘honour-price’ rarely amounted to the total property of the offender. Hence the direct source of the confiscation penalty must be sought elsewhere. We have suggested[120] that one direct result of the evolution of State-power was the conception of certain ‘crimes’ or ‘sins’ as an insult to the State and to its gods. This insult had to be atoned for in a more substantial and drastic manner than by the mere payment of an ‘honour-price.’ The State created new penalties, of which the most important was civic degradation (ἄτιμία). In Greece, this degradation in its graver forms was usually attended by perpetual exile and confiscation of property. It is impossible to explain the conjunction of these two penalties, except on the assumption of grades of criminality and of degrees of severity in deterrence and in punishment. We cannot suppose that wilful murder was the gravest crime or sin which the State had to punish. Treason was much graver. The penalty for treason, at least in fifth-century Athens, was death and confiscation of property[121]: and this, we believe, was also the penalty for parricide.[122] But the penalty for treason was collective and hereditary. No descendant of a traitor could be permitted to live, or to possess property, in the State which condemned him. The penalty for parricide was, however, individualistic, except in so far as confiscation implied a certain injury to the offender’s family and his descendants. If we may trust Andocides,[123] the penalty for sacrilege was death, without confiscation of property, in Athens in 399 B.C. Glotz[124] thinks that after 403 B.C. confiscation did not accompany death for any crime, even for treason. We have already[125] discussed a passage in the Third Philippic speech of Demosthenes, which implies that there was a relaxation in the punishment of treason which the orator attributes to lack of patriotism. Demosthenes frequently compares the penalties for manslaughter with the penalties for murder, and says that they were rightly less severe.[126] But if death and confiscation were the penalties for murder, it would, we think, be rather ironical to describe these penalties as ‘more’ or ‘less’ severe! We shall see presently[127] that exile without confiscation was the penalty for wounding with intent to kill. The phrase which Demosthenes uses, in speaking of murder-penalties, is unfortunately rather ambiguous. He says[128]: θανάτῳ καὶ ἀειφυγίᾳ καὶ δημεύσει τῶν ὑπαρχόντων: here, we must suppose that the first καί means ‘or,’ and we may suppose that the second means ‘and’: and we translate ‘by death or by exile and confiscation of property.’ This juxtaposition of words suggests, on the whole, that death absolved the murderer from confiscation.
We may support this conclusion from Pollux and from Aristotle. The latter, speaking of the sale-commissioners (πωληταί) at Athens, says[129] that, amongst other things, they ‘sell the estates of exiles from the court of Areopagus and the property of State debtors.’ Pollux[130] says of these same officers that they ‘sell the property of those who have fled from the Areopagus after the first speech.’ If death was accompanied by confiscation for wilful murder, why do not Pollux and Aristotle say so? The reference of Pollux to exiles who fled ‘after the first speech’ must apply to murder-exiles, and to them alone. This whole subject has been ably discussed by Glotz,[131] and we are glad to be in agreement with his main conclusion, that death absolved from confiscation in cases of wilful murder. We agree with Glotz that the phrase in Lysias,[132] ἐγὼ γὰρ νῦν καὶ περὶ τοῦ σώματος καὶ περὶ τῶν χρημάτων καὶ περὶ τῶν ἄλλων ἁπάντων κινδυνεύω, does not prove, as Philippi[133] maintains that it proves, the combination of death and confiscation in such cases. The word σῶμα here, as Meier[134] and Glotz[135] point out, means civic status, like the Latin word caput, and need not refer to ‘life.’ In general, we may say of the ancient authorities what Glotz says[136] in reference to one of Antiphon’s Tetralogies,[137] that if the dual punishment was legal it could not fail to have been mentioned. If we add to this fact of omission the force of our general reasoning as to the origin and raison d’être of the penalty of confiscation, and the plain and obvious inferences from the Attic murder laws, we cannot come to any other conclusion than that which we have reached. Philippi must stand alone as the sole exponent of the opposite opinion.
It is, however, rather inconsistent for Glotz to maintain that confiscation (though prevented by death) was an invariable concomitant of exile and at the same time to suppose that ‘private settlement’ for wilful murder was legal.[138] On purely material grounds, and apart from any religious considerations,[139] it seems obvious that no State would have legalised a bribe which, by paralysing the action of the leading prosecutor, removed from the murderer all civic degradation and deprived the public treasury of that property which it regarded as a partial retribution for the insult which its religion had received. It is not necessary for Glotz[140] to propose, as a novel hypothesis, that the phrase μηδ’ ἀποινᾶν, which forbade the amercement of a murderer en rupture de ban, was a Solonian innovation. Why should Solon have troubled to forbid such amercement if ‘private settlement’ was legal? Glotz would answer that the phrase μηδ’ ἀποινᾶν refers to the abolition of wergeld: that wergeld was one of the pillars of clan-power: that Solon, being opposed to clan-power, therefore abolished wergeld: but that ‘private settlement’ was not wergeld and stood therefore on a different plane: that Solon could not have abolished ‘private settlement’ as long as the relatives had the initiative in prosecution! This position we have already[141] discussed at length. It seems clear, prima facie, that ‘an amercement en rupture de ban’ was not wergeld but was very much akin to, if not actually identical with, ‘private settlement.’ The splendid hypothesis of Glotz must therefore be turned against himself. We may go a step farther. As there is no reason for supposing that Solon rather than Dracon should have prohibited ‘private settlement’ for wilful murder, the phrase μηδ’ ἀποινᾶν, which does not refer to wergeld but does forbid a kind of ‘private settlement’ or ‘amercement,’ is therefore quite properly Draconian. As for wergeld, we have shown that it was abolished, or at least that it lost all but the shadow of its substance, in the religious revolution which declared murder a ‘pollution.’ Any possibility of its resuscitation was removed when in the atmosphere of theocratic religion the State gods claimed, as a retribution, the property of the slayer. For cases of wilful murder at least, which was now placed on an execrable pedestal beside treason and sacrilege, the days of retribution to the relatives of the slain were no more.
From Plato[142] we infer that there could be no burial for murderers who did not go into exile and who were executed by State officials.[143] We need not again[144] call attention to the importance of burial in ancient Greece. It alone gave repose to the dead, and enabled the entombed spirit to be periodically revivified, and even recalled from Hades, by the offerings made at the grave. The refusal of burial to murderers, especially kin-slayers, to traitors, and sacrilegious persons, was a particularly revolting form of supplementary punishment. Their bodies, stripped naked and cast beyond the boundaries, were devoured by dogs and birds. No wonder that a pleader, in a Demosthenic speech,[145] says that to them death was not easy, as it was to ordinary men. No wonder that the slayer would flee and lose his property rather than preserve it for his children at the cost of such a fate.
Included in the category of wilful murderers, from the legal standpoint, were the plotters or contrivers or instigators of murder, at least when the plan materialised.[146] Andocides, in his speech On the Mysteries, says: ‘This law existed in former times and now also exists, namely, that the “plotter” shall be liable to the same penalty as he that has wrought with his hand.’[147] From the law[148] of Dracon which declares that ‘if anyone shall kill a murderer or be the cause of his death (αἴτιος φόνου) while he abstains from the markets on the civic boundary ... he shall be liable to the same penalties as if he had killed an Athenian,’ we can infer that the equation of plotting to kill with unjustifiable homicide, which is here mentioned, applied also to ordinary wilful murder. Plato[149] confirms this conclusion, but suggests that in regard to burial the slayer was more severely punished than the ‘plotter.’ ‘If a person,’ he says, ‘shall not with his own hand (perpetrate) but shall suggest to another a deed of murder and by deliberate plotting (βουλήσει καὶ ἐπιβουλεύσει) be the cause of slaying, let there be for him similarly ... a trial and verdict.... If convicted let it be lawful for him to have the family burial place.’ Demosthenes[150] puts the matter beyond the pale of doubt when he says: ‘Remember, the father of the priestess at Brauron, who was admitted not to have touched the deceased, was sentenced to exile by the Areopagus because he instigated the actual striker to strike.’ This sentence of banishment for plotting murder probably carried with it the confiscation of the plotter’s property. Aristotle tells us that one of the terms of the Peace made between the rival factions in Athens in 403 B.C. was as follows[151]: ‘Trials for homicide in accordance with the ancient laws shall only be held in the case of persons who have killed with their own hand.’ We can understand the political significance of such a condition: but it was merely a temporary amnesty for criminal political intrigue. The guilt of the plotter or contriver of homicide is frequently referred to in Attic tragedy. It was, we must suppose, a strong feature in traditional legend. Euripides, as we shall see, refers to this blood-guiltiness in several plays, for instance in the Orestes,[152] the Electra,[153] the Medea,[154] the Andromache,[155] and the Heracleidae.[156]
But there is another kind of homicide guilt which may easily be confused with this, namely ‘attempted murder.’ The Greek words βούλευσις and ὁ βουλεύσας are unfortunately ambiguous, as we have already explained.[157] Subjectively, the guilt of the ‘plotter’ and of the ‘attempter’ is the same, but objectively there is a difference. In one case a human life is violently taken: in the other it is not. Lipsius seems to have confused these issues.[158] In Aristotle’s account of the Attic murder courts, he finds a reference to βούλευσις being tried at the Palladium. Knowing, from the speech of Demosthenes against Conon,[159] that ‘plotters’ were tried at the Areopagus, he supposes that a change of jurisdiction had taken place shortly before 330 B.C. Before this, he implies that there was a division of labour by which βουλεύσεις φόνου ἀκουσίου were held at the Palladium, and βουλεύσεις φόνου ἑκουσίου at the Areopagus. We confess we cannot find any meaning in ‘plots of manslaughter’; it is a contradiction in terms! Now Poste, in his translation of this Aristotelian passage, does not use the word ‘plotters’ in connexion with the Palladium. He translates thus: ‘Homicide with malice aforethought is tried in the Areopagus, including homicide by wounding, by administering poison, or by fire ... involuntary homicide, attempts to commit homicide ... are tried in the Palladium.’ Thus, we see the difficulties which arise from ambiguities of language. We have quoted Andocides for the principle that plotting murder was regarded as equivalent to wilful murder. A Draconian law mentions both kinds as equally punished in cases of unjustifiable homicide. Therefore plots to kill would normally always have been tried by the Areopagus. Poste’s translation of Aristotle, which is superior to Lipsius in this respect, nevertheless suggests perhaps that ‘malicious wounding’ without fatal results was not tried by the Areopagus. The law which Aristotle gives is that of Dracon, and it means that the Areopagus tried wilful murderers, plotters of murder, wounding with intent to kill, poisoning with intent to kill, and arson—whether with intent to kill or not, we cannot say. Attempted murder must be defined, we think, owing to some discrimination in Attic legal procedure, as an attempt to kill which did not cause any actual bodily harm.[160] Such attempts may have been always tried at the Palladium, but what the penalty was we cannot say—it was probably banishment for a period of years.
For wounding with intent to kill, the penalty was perpetual exile,[161] which was not accompanied, we think,[162] by confiscation of property. The penalty for ‘plotting’ murder (which was successful) was death or banishment, accompanied by confiscation. Wounding without intent to kill was a case for civil damages, before the Heliastic courts—it was perhaps a δίκη αἰκίας.[163]
Before discussing the legal aspect of parricide and of kin-slaying we must examine the question of the origin and evolution of official State execution in the capital punishment of homicide. The establishment of this method of execution had, we believe, an important influence on the penalty for parricide and, probably, for all general cases of wilful kin-slaying. The prevailing opinion on this subject tends to suppose that the method of private execution which is found in the Iliad and the Odyssey was the normal method of execution in historical Greece and even in Athens until the time of the orators, that is to say, the fourth century B.C. The only difference which can be found, according to this view, between the Homeric and the historical modes of execution is that in the former case the execution was unauthorised by any written law or by any public trial, while in the latter case it was legally authorised and permitted. Thus Gilbert[164] holds that the relatives of the slain personally executed the slayer in Athens in the fifth century, and that the exceptional instances of State execution must be attributed to the sacred ‘right of sanctuary,’ and especially to the Athenian sanctuary of the Semnai Theai. Glotz minimises as far as possible the change which, he is compelled to admit, had taken place in historical Greece. It was, he thinks,[165] from philanthropic motives that the State consented to execute the murderer if it was requested to do so by the relatives of the slain. The old principle of primitive society: ‘de voluntario convictus parentibus vel cognatis occisi tradatur occidendus’ gives place to an alternative principle that ‘murderers are put to death sometimes by the judges, sometimes by the relatives.’[166] At Athens, the ideals of philanthropy went one step further. ‘L’exécution étant faite au nom du peuple par le δήμιος (public executioner) le parent qui avait engagé la poursuite contre le meurtrier assistait à son supplice.’[167] It is clear that Glotz regards this public execution as strangely exceptional. He cannot, however, ignore the evidence of the orators. But he seems quite certain that this custom did not apply in the time of Dracon. ‘C’est dans l’Iliade et l’Odyssée qu’on surprend les origines des φονικοὶ νόμοι. Ce que la famille lésée demandait à l’état, d’après la loi de Dracon, c’était la permission de se venger. Il fallait donc que son droit fût reconnu, non seulement au moment des poursuites mais si elle l’emportait, au moment du supplice ou de l’expulsion. A l’origine de la juridiction sociale, comme dans la période antérieure de l’arbitrage, le tribunal, pour faire exécuter ses arrêts, n’avait que les armes de celui qu’il déclarait vainqueur. C’était le principe universel en droit grec, que l’exécution du jugement fût abandonnée à la partie gagnante.’[168] ... ‘Reconnaître le privilège de la famille en matière de poursuite et d’exécution, c’était pour Dracon admettre le principe de la vengeance privée, sauf opposition de l’état.’[169] But philanthropy will not explain the evolution of State execution, any more than the right of sanctuary will explain it. Public execution may be of a much more revolting character than the private infliction of death by an avenging relative in some secret place or at the tomb of the victim. Moreover, Glotz cannot suggest any definite date for the change of custom. He would probably have attributed it to Solon, only that he cannot assume a tremendous growth of philanthropy in that space of twenty years which separated him from Dracon; and he could not attribute an act of philanthropy to a legislator whose main object was the exaltation of State power! We admit that there is a certain suggestion of private execution in the infliction of death which was not only permitted but commanded when a murder-outlaw returned to forbidden territory. But in this case slaying was not the exclusive privilege of the relatives of the slain, but it was the duty of ‘the first citizen who met him’ to act as the avenger of the law. We have already[170] described such an ‘execution’ as a case of justifiable homicide. It is not in the least indicative of a system of private execution. The slayer acts as a State executioner. Neither can we argue, as Glotz does,[171] from the right of an injured husband to slay an adulterer in flagrante delicto, to the prevalence of private execution. Such an act is definitely declared by law to be justifiable homicide.
Our opinion on this subject may be thus summarised: (1) It is misleading to assume that the Achaean system of vengeance which is found in the Iliad and the Odyssey is the norm or standard of blood-vengeance either of tribal village communities or of synoekised States possessing a strong centralised government. Even amongst the Achaeans, we have shown,[172] there was a certain submission to military discipline, to a public opinion which discriminated between murder and vengeance, and therefore the avenger’s act was not entirely ‘private.’
(2) On the analogy of Indian tribal life, which Maine[173] has investigated, we may suppose that amongst Pelasgian village communities or tribal cities there existed a body of official police who acted as the supporters and preservers of tribal law. If, in such societies, homicide was not officially avenged, this was only because homicide was what we should now call a ‘civil offence,’ a matter for retribution between the families concerned.
(3) It was in post-Achaean times, and especially in the Hesiodic period and in the Dark Ages of Greek history, that murder and vengeance passed outside the control of law or discipline. In such conditions it was more than probable that murder would be unjustly punished, but it was equally probable that it would not be avenged at all. Into this abyss of chaos came in the seventh century the Apolline religion of ‘pollution.’ The birth of great States, the dawn of synoekised nationhood, was overshadowed by the wrath of gods and ghosts, which reflected the vindictive hatred of human vengeance. Amongst the first essential duties of the new-born States was the prevention of murder and the regulation of vengeance. In Attica, especially, where the blight of chaos fell most lightly,[174] could the new religion be most promptly honoured and obeyed.
(4) We will not maintain that the pollution-doctrine, alone and unaided, would have led to the official State execution of the penalty of death. Amongst the Hebrews,[175] one may point out, the ‘pollution’ of the murderer coexisted with the avenger of blood. The obligation of the State, one may hold, was satisfied by the trial and the condemnation of the murderer, and by the sentence of outlawry which was pronounced against him. But we would suggest, on the other hand, that Greek States did not confine themselves to a sentence of outlawry. The murderer, in Greek law, at the moment of his condemnation, nay at the moment that he challenged a verdict and uttered his second speech at the trial, no longer ranked as an outlaw; he was a State criminal whose insult to the State and its gods must be atoned by public execution. Like the sacrilegious criminal, he must be executed solemnly and with public execration. His body cannot be buried in the tomb of his fathers. Naked, it is cast beyond the civic boundaries, amidst the curses and the groans of the mob, to be eaten by dogs and wild birds when it has been bruised and mutilated by the stones and missiles which are hurled not by the relatives only, but by an angered populace.
Yet we cannot suppose that the pollution-doctrine of itself degraded murderers to the same level with sacrilegious criminals, at least in the judgment of Apolline theocratic nobles, the pre-historical Greek sacerdotal aristocracy. From the Ion of Euripides[176] we infer that sacrilege was the main element which the Delphian nobles and magistrates condemned in the attempted murder of Ion, the priest of Apollo, by Creusa. We cannot infer that ordinary homicide would have called for such public action unless we assume that the Delphians, in addition to being priests, were also the leaders of a civic government. Their action in the Andromache[177] in slaying, in conjunction with Orestes, Neoptolemus, who was consecrated by his presence in the sanctuary, cannot be reconciled with their procedure in the Ion unless we assume that the death of Neoptolemus was an act of vengeance. Such indeed it was, but, as Euripides presents it,[178] it was entirely out of proportion to the offence. The attitude of the Delphians in the Ion, and also the survival of the avenger of blood in Hebrew society under the operation of ‘pollution’ doctrines, prevents us from asserting that private execution was abolished by ‘pollution.’
(5) But we have suggested[179] that the murder code of historical Greece was a compromise between three forces: (a) the tribal traditions of material retribution to the relatives of the slain; (b) the Apolline doctrine of homicide as an offence against the gods; and (c) the conception of murder as an insult to the majesty of the State and to its gods, which arose after the synoekism of local peoples and the establishment of strong civic governments. As we believe that the pollution-doctrine abolished wergeld, so we believe that the concurrence of the pollution-doctrine with State power led to the abolition of private execution for homicide in the rare cases in which the murderer refused to flee and was put to death, because he had the audacity to perjure himself in the attempt to prove his innocence. It follows that official execution was in existence in Dracon’s time. There is no more reason for delaying its arrival twenty years in order to link its advent with the name of Solon than there is for supposing that wergeld was not abolished before the time of Solon. Between 600 B.C. and the time of Demosthenes we know of no civic or legal innovation to which such a change could be attributed. The ‘Eleven’ who obeyed the verdicts of the Heliasts also obeyed the decision of the Areopagus and of the pre-Solonian Ephetae courts.[180]
Such evidence for State execution as we possess in Plato and the Attic orators, far from suggesting that it was a recent innovation, implies on the contrary that in their time it was a well-established practice.
Lysias,[181] speaking of a certain Menestratus who was a prominent informer and an accuser of citizens under the Thirty Tyrants, says that the citizens of the restored democracy ‘having arrested Menestratus in court on the ground that he was a murderer,[182] condemned him justly to death and handed him over to the public executioner, and he was cudgelled till he was dead’ (ἀπετυμπανίσθη). There is, of course, a political complication in this case. The guilt of treason was added to that of murder. Yet the procedure is similar to that which would have taken place if an ordinary murderer challenged the verdict of the Court.
Plato,[183] speaking of the punishment which was decreed for a slave who had wilfully murdered a freeman, and who was condemned to death, says: ‘Let the public executioner lead him to the tomb of the deceased or to a place from which he may see the tomb, and having scourged him with as many stripes as the plaintiff (a relative of deceased) shall order, slay him if he survives the scourging.’ Even on a slave, then, who had murdered a man, the relatives could not personally execute the death sentence. Again, speaking of wilful kin-slaying, for which, in his code of laws, there is no option but death, he says[184]: ‘Let the servants (ὑπηρέται) of the judges and the rulers (ἄρχοντες) put him to death and cast him out naked to an appointed place where three roads meet, and let all the public officials (or magistrates) on behalf of the whole State carry each a stone and hurl it at the head of the corpse, and free the whole city from pollution, and, after this, carry the corpse to the civic boundaries and cast it out unburied according to law’ (τῷ νόμῳ). There is here no mention of the relatives of the slain. We must suppose that if these relatives had been the normal executioners, the kin-slayer would not ordinarily have been slain at all. Human nature, as well as the actual evidence, compels us to believe that the relatives of a kin-slayer would have revolted at the infliction of death, whether in Pelasgian or in historical times.
Again, Aeschines suggests that the enemies of a man condemned to death were impotent to do more than attend as spectators at his execution when he says[185]: ‘It is not death that is so terrible: the really horrible thing is the insult suffered at the last moment of life. How pitiable a fate, to see an enemy’s face relaxing into a broad grin, and to hear with one’s ears the insults of enmity.’ This quotation has been taken by Glotz[186] to imply that the memory of private execution was still vivid in Athens in the time of Aeschines; but in our opinion it merely shows that public execution was a regular and established custom. A private enemy could have laughed as a freeman died: he could have counted the stripes and commanded their continuance, as a slave murderer was scourged to death. But his hand was bound: he could not strike the blow of vengeance.
Demosthenes[187] attributes to a certain Diodorus, whose uncle was indicted for impiety by Androtion, because he had not prosecuted his nephew on a charge of parricide, the following statement: ‘If Androtion had succeeded in his prosecution of my uncle I as a convicted parricide should have been deprived not only of my property but of my life: nay, even to die, which is the common lot of all, would not for me have been easy.’ This passage implies that Diodorus, if convicted, in this indirect manner,[188] of parricide, would have suffered a cruel death. The conjunction of the death penalty with confiscation in this instance points very forcibly to State execution. Hence we believe that the cruel death to which Diodorus refers was the public execution which Plato describes when he speaks of stones being hurled at the corpse, and of its abandonment to the dogs and the birds. Glotz has, we think, completely misinterpreted this passage. He thinks[189] that the penalty indicated is perpetual exile and thus renders the concluding words of Diodorus: ‘Je ne serais pas seulement dépouillé de ma fortune, je ne pourrais plus vivre, et le réfuge commun de tous les hommes, la mort libératrice, ne serait pas un asile pour moi.’
Demosthenes confirms our hypothesis of the evolution of State execution in another passage which concerns wilful murder. Speaking of the accuser, he says[190]: ‘If his accusation is considered just and he obtains a conviction for murder, even then he gets no power over the condemned man, who is given over for punishment to the laws and to the persons charged with that official duty: the accuser may be a spectator while the condemned suffers the penalty which the law imposes, but he can do no more.’ This quotation speaks for itself. Its value as a link in our chain of reasoning it would be impossible to overestimate. The conclusion which it points is indisputable.
The explanation which Demosthenes gives of this law is not, indeed, very profound. ‘How comes this to be the case,’ he says,[191] ‘men of Athens? Because they that made the laws originally, whoever they were, Heroes or Gods, did not (seek to) oppress the unfortunate, but in a humane way as far as they could with justice, they alleviated their misery.’ But Demosthenes shows a certain clarity of vision in another place in which he examines the question why the laws were so careful to preserve the lives of murderers abroad. One of the reasons was, he says,[192] ‘to prevent an infinite series in the avenging of injuries.’ We have already quoted Euripides[193] for a similar sentiment: ‘Right well,’ he says, ‘did our ancestors in olden times enact these laws ... they punished the murderer with exile, but they suffered no one to slay him in return, for (in that event) each successive avenger would be liable for bloodshed.’ This sentiment may have been inspired by the atmosphere in which Euripides himself lived, and taken in conjunction with that which we have just cited from Demosthenes, suggests that the Greeks did not practise the ‘private execution’ of death penalties within the living memory of those authors. In the light of our conclusion we shall proceed to examine the position of parricide and of kin-slaying in historical Attic law.
Two problems present themselves for solution: (a) First of all we must inquire whether parricide and kin-slaying were civic offences which were punishable by State law or whether the avenging of these deeds of blood was entirely at the discretion of the relatives and the clansmen; (b) secondly, we must decide what the nature of the legal penalty was (if the penalty was legal) in the historical era. The opinion of Glotz on this subject has already been given in outline.[194] He suggests that the pollution-doctrine affected the penalty for parricide, but he maintains that it was merely a public opinion which reinforced this doctrine and that the historical penalty was perpetual exile. The Draconian law, he holds,[195] did not interfere in the jurisdiction of the family. ‘En réalité Dracon n’édictait aucune sanction contre le parricide parce que l’Etat n’avait pas à s’occuper avec cela. La juridiction de la famille subsistait sur tous les points où elle n’était pas abolie par une disposition expresse. La loi ne parlait donc du parricide ... toutes ces questions échappaient à sa compétence.’[196] ‘Quand la conscience sociale se mit à intervenir contre les criminels, elle se proposait seulement de faire respecter les vieux usages. Elle obligea tous les meurtriers à quitter le pays au moins pour un certain temps: le meurtrier d’un proche, elle l’obligea ... à sortir de sa famille pour toujours.’[197]
In passing, we may note how inconsistent is this statement regarding the exile penalty for homicide with Glotz’s favourite hypothesis of the legality of ‘private settlement.’[198]
It is not true that the pollution-doctrine confirmed and preserved old customs. It was in many respects opposed to them. It tolerated them only by way of compromise. The last clause of the quotation which declares that the penalty for kin-slaying was perpetual exile is based upon a misinterpretation of a passage in the Laws of Plato. Plato clearly states that death was the invariable penalty for kin-slaying.[199] The exile penalty to which Glotz refers is applied by Plato only to extenuated or involuntary kin-slaying, and in this connexion there is no question of perpetual exile in the ordinary sense, but merely of banishment from the domestic hearth, not from the State or the country of the slayer.[200] Glotz quotes various analogies, such as[201] the Irish clan-law, which is revealed in the Senchus Mor, in support of his theory. But in historical Attic law we have left behind us the clan-laws of tribal society. We are in the presence of civic legislation and of international religious authorisation.
Caillemer,[202] who is admittedly influenced by Glotz, holds a very similar view. He says: ‘Il est très vraisemblable que la juridiction de la famille ne fut pas notablement modifiée par Dracon, et que le chef de famille garda le droit de juger et de punir sa femme, ses enfants, ses esclaves.... Avant Solon, le chef de famille, en vertu de sa magistrature domestique, pouvait ou bien mettre à mort la coupable, ou bien la chasser de sa maison.... Solon n’ignorait pas qu’il y avait à Athènes des parricides: mais il laissait à la famille le soin de les punir.... La société n’a pas à intervenir directement. Si cependant les parents manquent à leur devoir, une action publique va être donnée contre eux et elle pèsera de tout son poids sur l’homicide.’ The ‘public action’ which is here referred to is clearly the indictment for impiety, such as was brought by Androtion against the uncle of Diodorus.[203] But this indirect State interference which Caillemer is compelled by a passage in Demosthenes to regard as admissible in cases of parricide was the only kind of State interference which was permissible in cases of ordinary homicide in historical Athens. If then parricide and homicide stand on the same plane, so far as ‘social justice’ is concerned, why should we assume a distinction between them in regard to State jurisdiction and State execution? Caillemer attributes undue importance to an anecdote which is related by Cicero concerning Solon.[204] ‘On demandait,’ he says, ’un jour à Solon pourquoi il n’avait pas établi de peine contre le parricide. “J’ai pensé,” répondit-il, “que personne ne s’en rendrait coupable. Pourquoi statuer contre un attentat jusqu’alors sans exemple? Le défendre pourrait en inspirer l’idée.” In view of the fact that Solon did not change the murder-laws of Dracon, that the wording of those laws was sufficiently general to include kin-slayers, and that Roman ideas of jurisdiction and execution were different from those of Greece, we should be slow to base any theory upon such an anecdote. We read in Livy[205] that a certain P. Horatius, the father of a famous warrior who in a moment of passionate triumph slew his sister, and who was in consequence arraigned before the King and the Duumviri, said to the judges that he considered his daughter was justly slain, and that otherwise he would have punished his son by right of his parental authority.
Again, Livy tells us[206] how a certain Cassius, a consul, as soon as he went out of office, was sentenced to death and executed. ‘There are some who say that his father inflicted the punishment, that after putting him on trial in private he scourged him and put him to death.’ Such passages illustrate the well-known patria potestas of a Roman father. Yet even in Rome the State could interfere in such matters, since we find that a Decemvir ordered the arrest and the imprisonment of a certain Virginius who had slain his daughter.[207] Rome, however, can give us no really valid evidence for Greek law. The power of a father to sell his daughter as a slave, which Solon abolished, was a remnant of patria potestas.[208] But Solon’s interference in such matters proves that the sacred jurisdiction and power of the family had been already in his time invaded by the State. All matters which concerned public morality and utility, all matters which were affected by national or international religion, had naturally passed out of the exclusive control of the kindred. We have already indicated[209] the survival in historical Greece of clan-courts and of local religious corporations. We have also quoted Plato[210] for the operation of local jurisdictions in cases of ‘wounding in a passion,’ between members of the same kindred.
But the religious doctrine of pollution placed the actual slaying of kinsmen on an altogether different plane. Moreover, we believe that the evolution of State execution affected the question of the penalty for kin-slaying. Demosthenes, in two passages[211] recently cited, makes his client Diodorus say that if Androtion had succeeded in the indictment for impiety which he had brought against the uncle of Diodorus, he himself, as a result of the indictment, would not only have lost his property but would also have lost his life. Now such a confiscation of property must have been a State confiscation: and the only authority which could decree or execute such a confiscation was a State court and State officials. It is therefore natural to assume that the death penalty would also have been carried out by the State.
Plato describes, in hideous detail, the execution by public magistrates of the slayer of a kinsman.[212] Even for malicious wounding within the family, the penalty of death is decreed.[213] For wounding in a passion, a fine could be imposed by the parent or the male kindred of the offender: but if a parent was wounded by his child, death could be inflicted, even by a tribal court, in which none of the relatives of the child could act as judges.[214]
Lysias[215] makes one of his pleaders repudiate, most emphatically, the suggestion that parricide was not criminal and illegal. The word ἀνδροφόνος, or homicide, includes, he says, implicitly if not explicitly, the slayer of a parent. Pollux,[216] however he be interpreted, must be regarded as implying that parricide was a crime, which was probably punished by the Areopagus. We have quoted the relevant passage already.[217] Pollux is describing the Areopagus, which was the admittedly regular court for wilful murder. He refers to the preliminary affidavits, and, speaking of the final trial, is represented by the text of Dindorf as saying ‘After the first speech it is lawful to go into exile—if one has slain one’s parents’! Now, if we suppose that this text is correct, it would follow that parricide was a State offence which was judged by the Areopagus State court. But the same conclusion can be maintained even if, as we believe, the text is incorrect. We believe that Pollux wrote not εἰ but εἰ μὴ, and that he means ‘unless one slays one’s parents.’ He clearly implies that parricide also came before the Areopagus.
Finally, the Euthyphro of Plato, which represents a man actually bringing an indictment or a charge of murder against his father, cannot be explained on the assumptions of Glotz and Caillemer. The weakness of Euthyphro’s legal position is pointed out by Socrates,[218] namely that Euthyphro was not a kinsman of the slain. The threatened indictment was a δίκη, not a γραφὴ. It was a regular charge of homicide which was lodged with the Archon Basileus.[219] Now Socrates’ objection would not apply if the slain man had been a kinsman of the accuser: and this would necessarily have been the case if the father of Euthyphro had slain a member of his own family or kindred.
We have seen[220] that in the days of private vengeance and of tribal society, kin-slaying was normally punished by exile, as wergeld was impossible, and kinsmen revolted against the infliction of death. In those days, kin-slaying was normally a matter for the jurisdiction of the clan. In historical times, kin-slaying was punished by death and the confiscation of property—and these penalties can no longer be regarded as in conflict with clan-psychology, since the slayer was prosecuted in a State Court and was executed by State officials. All these facts are therefore quite consistent and they are mutually explanatory. It was the doctrine of pollution and the evolution of civic government which produced so drastic a revolution in the punishment of kin-murder.
We can now understand quite clearly the meaning of Plato’s reference to the penalty of kin-slaying: ‘Of a kindred blood defiled,’ he says,[221] ‘there is no other cleansing, and the pollution cannot be washed away until the life of the slayer shall atone for kin-blood by kin-blood and appease and set to rest the anger of all the kindred. It is proper that a person be restrained from such deeds by the fear of such punishments from the gods.’ Euripides also expresses the same sentiment in the Medea. The Chorus say[222]: