How then do we suppose that the murder of a husband by his wife, or of a wife by her husband, was punished in Attic law? Such parties were usually not akin by blood. Yet they lived in the same house and they ate at the same table.[223] The penalty in this case was, we think, precisely the same as the penalty for ordinary wilful homicide. The slayer had the option of going into exile for ever if he fled before conviction, or of suffering death at the hands of the public executioner if he did not flee. Hence, perhaps, Euripides[224] is thinking of the historical Attic law when, in the Orestes, he makes Tyndareus assert that Orestes should not have slain his mother, but should have put her on trial and have banished her as an exile for ever. We must assume that in the event of exile the property of such slayers was confiscated, though it seems very cruel that children whom murder and vengeance had deprived of both their parents were compelled in addition to forfeit their patrimony.

The malicious wounding of a husband by his wife or of a wife by her husband did not, apparently, involve such a confiscation but did involve perpetual exile. This identical penalty is applied by Lysias to ordinary cases of malicious wounding.[225] Hence Plato is quite authentic when he says[226] ‘If a woman wounds her husband with intent to kill, or a husband his wife, let (the offender) undergo a perpetual exile ... let guardians manage the property and take care of the children as if they were orphans.... In case there are no children let the kindred, as far as cousins, on the male and female side, come together and appoint an heir.’

It is in cases of involuntary homicide or of homicide in a passion, between man and wife, that the influence of the pollution doctrine is especially apparent. The penalty for such deeds, as Plato assures us, was perpetual exile from the family and temporary exile from the State. Now, temporary exile, in ordinary cases of involuntary homicide, was terminated by the ‘appeasement’ of the relatives of the slain. The primeval tribal law in which ‘appeasement’ ultimately originated recognised the payment of material retribution in cases of husband-wife slaying. But the ‘pollution’ doctrine prevented the survival, in historical times, of ‘appeasement’ in cases of this kind. Plato[227] assures us that such offenders could never, in any circumstances, return to dwell in their old homes with their children.

We have now completed our review of the murder-laws of Dracon. We have not referred in this connexion to the law which related to the seizure of hostages in default of extradition (ἀνδροληψία) because this law has already[228] been discussed and explained. We have also omitted many legal details, of which some will find a place in our next chapter, which deals with Attic murder-courts, and others have not been considered sufficiently important or sufficiently relevant to our main purpose—which is, in effect, the philosophical explanation of the origin and evolution of Greek homicide law.

There is one point which, in conclusion, we wish to emphasise, namely the value and the importance of the Platonic code when considered as a supplement to the laws of Dracon in cases where they do not directly reproduce them. It is easy to assert that Plato is an idealist when his ideas do not correspond with one’s pet hypotheses.[229] But what, we may ask, was the source of Platonic idealism, and was this source of such a kind that it would have affected the historicity of his homicide-laws? The idealism of Plato was, we think, derived from the Orphic-Pythagoreans, and also to some extent from the Eleatic philosophers. His theory of ‘ideas’ originated, as Burnet has shown,[230] with the Pythagoreans. So, Glotz rightly says[231]: ‘l’eschatologie de Platon présente une grande cohésion. Elle vient de l’orphisme.’ Was there, then, in Orphism any special doctrine which could have affected Plato’s attitude to homicide? Could such a doctrine have imported new ideas into Plato’s legislation? It is true that murderers were excluded from the famous Mysteries at Eleusis when those Mysteries came under Orphic domination, from 400 B.C. onwards.[232] Murderers were punished by everlasting fire in the Orphic Tartarus,[233] and parricides and matricides were singled out for the most severe punishment. Aristophanes has a line[234] which has been interpreted as referring[235] to human bloodshed,

but the φόνοι which are here mentioned denote the sacrificial slaying of animals, to which the Orphics objected. Horace[236] puts it more clearly when he says:

Orphism, then, stands in the same relation to the Apolline religion of pollution as Christianity does to Judaic religion. It supplements the punishment which angry deities send upon criminals here on earth by a further punishment hereafter. But, considered as modifying factors in the evolution of social law, the Judaic and the Apolline doctrine of pollution are incomparably more important. We have seen that Christianity accepted wergeld in Europe,[237] while Judaism abolished it in Israel.[238] Orphism, as we conceive it, had no effect upon the murder-laws of Greece. Plato was, naturally, sympathetic towards the Orphic religion: still he does not place much trust in merely posthumous punishment for so great a crime as homicide: and hence in his penal code he falls back on the historical Greek laws which were the offspring of Apolline religion, because there was no other code available. Thus he says[239]: ‘Let our prelude include a “myth” which many of those who seriously take to heart such matters in the mysteries have heard and believe firmly, namely, that for such persons (i.e. murderers) there is a punishment in Hades: or that it is necessary for them to come back hither to suffer punishment according to nature (by a natural law), to suffer from others what they had done themselves ... for him who is persuaded ... and who terribly fears such punishment, there is no necessity to frame a law, but for him who is not persuaded let the following law be written thus.’ Here Plato, as a prelude to his homicide legislation, definitely states that these laws are intended for the general public and not for Orphic votaries. So again[240] he says: ‘Death is not the extreme punishment: the pains spoken of in regard to such persons (i.e. murderers) in Hades are still more extreme: though they who tell such truths accomplish nothing by way of deterrence (ἀποτροπή) for people of such a character: otherwise there would never have arisen matricides and impious attacks on parents. Hence the punishments here in this life for such crimes should rival in efficacy those in Hades.’ Here we see that, despite the Orphic sympathies of Plato, he has to adopt as his legal model the historical Greek murder code which was mainly derived from the Apolline ‘pollution’ doctrine. He has to appeal to the religious sanctions of Apollinism, just as in modern society Christian preachers appeal to Judaic doctrines when a more ideal and higher conception of religion fails to deter the shedder of blood. The homicide code of Plato was therefore not affected by Orphic ideas. It was based on the Attic code of Dracon, and also on local traditions, or, as Glotz would describe it,[241] ‘la vieille jurisprudence des exégètes.’