In an earlier section[1] of this work we have explained what we consider to have been the origin and the evolution of judicial investigation in matters of homicide. We have said[2] that ‘the evolution of early Greek judicial authority is not a transition from a crude arbitrary local jurisdiction to an efficient central compulsory jurisdiction but rather a gradual extension to wider areas, in accordance with increasing political synoekism, of the judicial functions which had been previously discharged with equal authority within smaller areas.’ The influence of the ‘pollution’ doctrine in compelling the State to investigate and to adjudicate concerning degrees of blood-guiltiness has also been clearly shown.[3] We shall now apply our conclusions to the Attic homicide courts—the only Greek courts of which we have any precise and authentic knowledge. The actual origin of the Athenian courts is surrounded by mystery and obscurity. Many of the legends which refer to their foundation are clearly the fabrications of men who were born when these courts were already old. Places which in later times came to be notoriously associated with the courts which sat there to give judgment in homicide cases, had previously, in many instances, been consecrated by legends which had no connexion with homicide at all. The ‘Areopagus,’ for example, that is, the Hill of Ares, may have been at one time the scene of a battle in which Theseus, an Ionian King of Attica, proved victorious. The place would then naturally have come to be called ‘the Hill of Ares.’ Aeschylus[4] says that the hill got its name from the sacrifice which was offered to Ares by the Amazons whom Theseus defeated. Glotz points out that there was no temple of Ares on the Areopagus, and he holds that the connexion of Ares with this hill was derived from a time when Ares signified not only war but murder, as in the Homeric phrase, Ἄρεω ἀλκτήρ (avenger of blood).[5] This homicidal rôle of Ares, and, moreover, the existence of an altar of Athene Areia at the Areopagus, which is referred to by Pausanias, explains, he thinks, the real origin of the place-name. But Pausanias was not of this opinion. ‘Here also,’ he says, ‘is the Areopagus, so called because Ares was first tried here.’[6] This is really a third hypothesis as to the meaning of the word. Aeschylus gives also a fourth explanation. The place may be called, he suggests,[7] from the Erinnyes who here became ‘appeased’ under the form of Semnai Theai, but who were called Arai or Curses beneath the earth. The main point of interest in this confusion of opinions is that the hill called the Areopagus was in historical times so closely associated with trials for homicide that Ares had to be conceived as a murderer in order to retain his connexion with the place. Orestes, whose sojourn at Athens, as Homer relates it, had no connexion with homicide,[8] was associated, in legend, with the Areopagus to such an extent that Ares was almost eclipsed and the Athenians found it difficult to decide whose trial came first! Demosthenes[9] wisely refrains from deciding. ‘In ancient times,’ he says, ‘as we are informed by tradition, the gods on this tribunal alone deigned to demand and render justice for murder.... Poseidon claimed justice against Ares because of the murder of his son Halirrhothius, and the Twelve Gods sat in judgment between the Erinnyes and Orestes. Such are its ancient glories.’ Aeschylus is naturally led by dramatic considerations to regard the trial of Orestes as the first[10] Athenian murder-trial: and therefore, out of courtesy to Ares, he is led to reject the legend that Ares was a murderer, in favour of what we believe to have been an older story, namely that Ares was a war god to whom, on that hill, the Amazons sacrificed when they were overthrown by Theseus.[11] Euripides[12] accepts as a fact the trial of Ares on the Areopagus, but he places it prior to the trial of Orestes. It is quite impossible to base any historical reasoning upon such legends. The mention of the Areopagus in a law of Dracon—or rather, as we think, in a Solonian modification of it—is the only genuine evidence for the antiquity of the Court.

Similarly, in regard to the Delphinium, Pausanias implies that it was believed to be as old as Theseus: but we have not the least doubt that its exclusive association with pleas of justifiable homicide was a product of the seventh and sixth centuries B.C. Pausanias says[13]: ‘The Delphinium is the court for those who plead that they have committed justifiable homicide, which was the plea of Theseus when he was acquitted for killing Pallas and his sons ... and before the acquittal of Theseus every manslayer had to flee for his life.’ Such statements belong to the region of aetiological legend, but not to that of historical fact. Theseus slew Pallas and his sons in war[14]; hence his act was not homicide in the ordinary sense. We have seen that in Homer[15] Pelasgian manslayers had not to flee, for they could pay their share of the wergeld and remain in the home of their fathers. It is strange that Orestes was not more definitely connected with the Delphinium court, for his plea in most legends was justifiable homicide. Demosthenes suggests that Orestes’ acquittal by the Areopagus was the cause of the establishment of the Delphinium.[16] But Orestes was bound to the Areopagus by ‘hooks of steel’ and he could not be divorced from it! We have little doubt that the Delphinium was a temple of Apollo at Athens long before it became associated with homicide-trials. Legends which explain it as the court of Apollo the Delphian justifier of Orestes, or of Apollo the justifiable slayer of the Δελφίνη, or Python,[17] do not prove that the distinction between justifiable and unjustifiable homicide originated in or had any essential connexion with this temple.

Legend is equally powerless to explain the birth of the Palladium court. Pollux is content to give a legend which explains only the origin of the temple, and even this story is probably fictitious.[18] Pausanias[19] tells us a similar tale about the Argives and the wooden image of Pallas, but in order to account for the origin of the court as distinct from the temple, he relates that Demophon, son of Theseus, was tried here for having slain, in an attack upon the Argives, an Athenian citizen whom in the confusion he had not recognised as such. But we have seen[20] that such slaying, in Attic law, was justifiably accidental homicide, not manslaughter. Yet Pausanias fancies that he is explaining the origin of a manslaughter court! No wonder that he feels that ‘the reason why he was tried is a matter of dispute.’[21]

In his account of the Prytaneum court which tried inanimate objects or animals guilty of bloodshed and which also brought in verdicts against unknown murderers, Pausanias[22] refers to the ceremony of slaying an ox at the Bouphonia. ‘They call one of the priests,’ he says, ‘Ox-Killer, and he, after throwing the axe, runs away, for that is the usage: and, as if they did not know who had done the deed, they bring the axe into court as defendant.’ The first instance of such a trial occurred, he thinks,[23] in the time of Erechtheus: ‘Then first did Ox-Killer kill an ox, and left the axe and fled the country, and the axe was forthwith acquitted after trial and is tried annually even nowadays.’ Pausanias is probably correct in attributing to the Prytaneum an ancient origin. But the Bouphonia belongs to a different strand of development from that in which originated the trial of inanimate objects. There is a stage in the evolution of ancient religion in which the slaying of an animal was a religious offence and needed expiation.[24] This stage is quite independent of that in which the shedding of human blood became sinful. (We speak, of course, only of ordinary homicide, for in the earliest days[25] the slaying of a kinsman was a sin against the family ghosts and the gods of the hearth.) Now, the tabu against animal sacrifice had probably disappeared, in Greece, long before the seventh century B.C. when the tabu against human bloodshed had set in. But ritual is conservative, and the original rite of the Bouphonia continued to be carried out at a time when its meaning was lost and its origin forgotten. A new meaning—but a wrong meaning—was grafted upon this rite, a meaning which is derived from the trial of guilty animals and inanimate objects in the central Prytaneum court. Now this central trial was forced upon the State by the doctrine of pollution in the seventh century. The trial of animals at the Prytaneum cannot therefore be explained by the Bouphonic rite. The account of Pausanias is therefore misleading. We do not assert that the trial of animals and of inanimate objects in local courts was not as old as the Bouphonic rite. There is no time-limit to the antiquity of a jurisdiction which was necessary for the assessment of material damages, in such cases, in tribal society. This jurisdiction was also, we believe, appealed to in pleas of accidental homicide, as well as in cases where the slayer was unknown. But there is a vast gulf between local and central jurisdiction in such matters. Synoekism and ‘pollution’ were the two factors which bridged that gulf, but that result cannot have been earlier than the seventh century B.C. Hence we assert that the two events which are connected by Pausanias belong to two different strands of development.

Finally, in regard to the homicide court at Phreatto, legend is particularly at fault. Is this because the court was established very late, or is it that the conception on which the court was based could not easily have found analogies in the distant past? The latter, we believe, is the more correct explanation. The court at Phreatto was clearly and unmistakably derived from the religion of ‘pollution.’ The defendant pleaded from the deck of a ship and was not permitted to set foot on the shore.[26] This court had jurisdiction in the event of a person, who was already exiled for manslaughter, being afterwards, before his exile terminated, indicted for murder.[26] We may refer both accusations to the same act or to different acts. We may suppose, either that new evidence had been obtained which destroyed the plea of manslaughter guilt which had once been successfully advanced, or that an entirely new deed of blood had been laid at the door of the exile. It would have been clearly very difficult to find archaic facts so similar in general outline to such events that they could have been perverted so as to form archaic precedents. Legend[27] revealed no better precedent than the story of Teucer pleading innocence for the death of Ajax! This plea was made to Telamon of Salamis, before Salamis became Athenian, and is therefore entirely irrelevant. The name Phreatto seems to be derived from φρέαρ, φρέατος, which denoted an enclosed area of the sea near the Peiraeus where the court sat.[28] The origin of this court belongs to the pollution era, but that fact does not prove that its origin was very much later than that of the other courts, if we regard these other courts as centres of official State judicature functioning compulsorily under the influence of the ‘pollution’ religion. We maintain that there were courts for homicide from time immemorial in tribal Greece. But it was the seventh century that saw the birth of the Attic murder courts in that particular rôle which they fulfilled, with some slight modifications in respect of the distribution of labour in historical times.

As we cannot then derive any assistance from the legends in our attempt to describe the evolution of the Attic murder-courts, we are compelled to begin, so to speak, at the other end, and by arguing from survivals, to reconstruct the most probable mode of evolution from an analysis of historical facts.

We will begin with the synoptic account of Pollux[29] which is as follows:

(1) The Areopagus ‘judged (charges of) wilful murder and wounding with intent to kill, arson and the administering of drugs, if a person gives them with intent to kill.’ This account is identical in fact with that of Dracon’s law, as Demosthenes[30] quotes it. It is therefore probably based upon the Demosthenic passage or upon an archaic inscription. The clause φόνου καὶ τραύματος ἐκ προνοίας καὶ πυρκαϊᾶς καὶ φαρμάκων occurs both in Pollux and in Demosthenes.[31] Pollux adds that the nine archons were added to the Areopagites, and that they held their trials in the open air.

(2) The Palladium: ‘in this court are heard charges of involuntary slaying.’ Pausanias[32] corrects this account, though he is not himself very precise, when he says: ‘Murder-cases are taken in this court ... in which are also tried cases of manslaughter.’ Further details we shall presently adduce from Aristotle and from Demosthenes; we shall see[33] that this court tried no murder-cases except those which occurred between strangers.

(3) The Delphinium: the trials in this court are modelled, Pollux suggests, on that of Theseus and the Pallantidae ‘whom he admitted that he slew but asserted that he had justly slain.’

(4) The Prytaneum ‘judges about those who have slain, if they are unknown (ἀφανεῖς), and about inanimate objects which have fallen upon and slain (persons). The Tribe-Kings, whose duty it is to cast the fallen object over the (civic) boundaries, preside over this court.’

(5) The Court at Phreatto: ‘in this court anyone was tried who, being an exile for involuntary homicide, becomes liable to a second charge of wilful murder. The Court was by the sea; the accused had to make his defence from the ship, without touching the land....’

Pollux[34] then proceeds to describe the Heliastic courts, which were five or six in number. Pausanias[35] mentions four of these courts, namely: (1) The Crush; (2) The Triangle; (3) The Froggy and (4) The Scarlet. From this description of them we may infer that these courts were always distinguished in procedure if not in personnel from the famous Ephetae courts. One of these Heliastic courts which Pollux mentions is the court of the ‘Eleven’ Gaol-Commissioners. These officials had summary jurisdiction in certain cases. Aristotle[36] mentions the cases of ‘thieves, kidnappers and highway robbers’ who confessed their guilt. Demosthenes[37] refers to a prison court in which an accused but unconvicted murderer who was found frequenting temples or public places could be summarily tried and put to death. We shall discuss this court more fully presently. It seems to us to be properly described as a special kind of Heliastic court: for the Eleven were appointed, like the ordinary Heliasts, by lot.[38]

Whether the Heliastic jurors in the fourth century were compelled to occupy separate places of jurisdiction from the Ephetae or whether they also sat in the actual Ephetae courts is a difficult question to decide. One thing at least is certain, as Lipsius points out.[39] The mode of procedure in the old courts remained peculiar and distinct. When therefore Antiphon[40] makes a pleader, in a homicide charge, object that ‘here there is no open-air trial, no customary giving and taking of oaths,’ we know that the trial is by Heliastic jurors in a Heliastic court. No mere change of personnel from that of the Ephetae or nobles to that of democratic jurors was so drastic as the legal sanction of an alternative procedure which entirely lacked the religious traditional prestige of the older Ephetae courts.

Aristotle’s account[41] of the five great homicide courts is very similar to that of Pollux:

(1) The Areopagus: Homicide with malice aforethought (i.e. wilful murder) is tried in the Areopagus, wounding with intent to kill,[42] poisoning with intent to kill, and arson: these are the only indictments tried by the Areopagus.

(2) The Palladium: Involuntary homicide, attempts to commit homicide (βούλευσις), and the homicide of a slave, or a foreigner domiciled or undomiciled, are tried in the Palladium.

(3) The Delphinium: Homicide avowed and alleged to be lawful, as of a surprised adulterer, or in war of a friend mistaken for an enemy, or of an antagonist in an athletic contest, is tried in the Delphinium.

(4) The Prytaneum: the King-Archon and the Tribe-Kings judge indictments of inanimate objects and of animals.

(5) Phreatto: If an exile for involuntary homicide has not yet obtained permission from the relatives of the deceased to return, and is charged with another homicide or with wounding, he is tried at Phreatto. He pleads from the deck of a vessel brought to land.

Aristotle adds that ‘the jurors are appointed by lot, except in the case of the Areopagus. The “King” (i.e. the King-Archon) introduces indictments: the courts sit by night and in the open air, and when the “King” takes his place in any court, he lays aside his crown.[43] If the name of the homicide is unknown, the indictment is prosecuted in general terms against the unknown author.’

In these extracts we must indicate some points of interest. (1) The jurisdiction of the Areopagus, according to Poste’s interpretation, extended only to cases in which human life was actually taken, and deliberately taken: obviously therefore it did not include all cases of arson. But according to the usual interpretation, which we accept, arson of any kind was included in its jurisdiction, and so was malicious wounding which did not end in death. (2) In Aristotle’s account of the Palladium, the word βούλευσις must mean ‘attempted murder’ which did not succeed in inflicting any physical injury.[44] It cannot, as Lipsius[45] thinks, include ‘contriving death,’ which, according to Demosthenes,[46] was tried by the Areopagus. (3) The Palladium adjudicated in cases of wilful homicide between foreigners. Pausanias also attributes this function to this court, as we have shown.[47]

The Athenian Areopagus had a very chequered career. Solon is generally regarded as its creator, and in his time it functioned as a Council of State with very wide supervisory powers. But about the year 460 B.C. Ephialtes and Pericles[48] restricted the function of the Areopagus to the trial of wilful murder, and of cases of arson and poisoning which included actual intentional slaying. About the same time the archonship was thrown open to the poorer citizens, so that the personnel of the court became more democratic.[49] Pollux and Aristotle agree in assigning to the Areopagus functions which it continued to discharge, despite the vicissitudes of fortune, from the sixth century onwards. When Aristotle says that the Athenian jurors were appointed by lot,[50] he refers, clearly, to the Heliastic courts and not to the Areopagus. The Areopagus court, which was composed for the most part of Archons and ex-Archons, was on quite a different plane. Similarly the Ephetae judges were probably not chosen by lot, since they were members of the old aristocracy of birth. Aristotle does not expressly mention the Ephetae. Yet we cannot suppose that they were ever completely deprived of jurisdiction in homicide cases. Harpocration[51] says that the jurors in all the great homicide courts except the Areopagus were Ephetae; that they were fifty-one in number, and were chosen according to the qualification of birth. The statement of Pollux[52] that ‘the Ephetae judged in the five courts’ applies only, we shall see, to Dracon’s time. When he adds: ‘gradually the jurisdiction of the Ephetae was regarded as a joke’ (κατεγελάσθη), we can hardly suppose that he is comparing them with the Areopagus, but rather with the Heliastic jurors. But he implies at least that the Ephetae continued to function as judges and that they were never confused with the Heliastic jurors. If then in Aristotle’s time the judges at the Palladium, Delphinium and Phreatto are Heliasts, we must conclude not that the Ephetae had ceased to exist, but that democracy had invaded their jurisdiction to the extent of permitting an option in the personnel of the court, though the traditional procedure of the court was maintained. We shall see that the Areopagus and the four Ephetae courts were regarded with reverential awe in the time of Demosthenes. We do not know to what period Pollux refers when he says that ‘the court of the Ephetae was regarded as a joke.’ It is probable that the Heliasts had the option of sitting in such courts, and this fact may have preserved for them at least a remnant of their old prestige. But the main cause of the reverence which these courts inspired was their traditional procedure. The King-Archon when he presided at the Areopagus laid aside his crown.[53] According to our interpretation of Aristotle, he also laid aside his crown when he sat amongst the Heliastic jurors in the Ephetae courts. This act was not a tribute paid by obsolete monarchy or aristocracy to victorious democracy. It was an act which the religious atmosphere of the Areopagus and of the Ephetae courts had enshrined in traditional custom. It was an act which fully harmonised with the solemn procedure of these courts, with their traditional nocturnal sessions, in the open air, beneath the dark sky and the cold stars.

We will now quote some extracts from Demosthenes in relation to the Athenian homicide-courts:

(1) The Areopagus.[54] ‘There are many institutions amongst us of a character not elsewhere found, but the most characteristic and venerable of all is the court of the Areopagus ... in ancient times, as tradition tells us, the gods deigned in this court alone to demand and to render justice for murder and to sit and judge mutual disputes: Poseidon sued Ares for having slain his son Halirrhothius,[55] and the twelve gods judge the suit of the Erinnyes and of Orestes: this tribunal neither tyrant nor oligarchy nor democracy has ventured to deprive of its jurisdiction in murder cases: everyone knows that any process of popular invention would be less efficacious than that of the Areopagus ... of this court only is it true that no convicted criminal or defeated plaintiff has ever assailed the propriety of its verdict. For all know that in the Areopagus where the law permits and commands proceedings for homicide to be taken, the person who charges another with such a crime will take an oath with imprecations on his family and his house: it is no ordinary oath that he has to swear ... he must stand upon the entrails of a boar and a ram and a bull: these animals must have been sacrificed by the proper persons and on the appointed days so that both in regard to time and to officiating persons every due solemnity may have been observed. Even then the person who has sworn such an oath is not yet believed, but if he is convicted of falsehood, he will carry away the curse of perjury upon his children and his posterity.’ The solemn procedure here described is also referred to by Antiphon[56]: and Lysias[57] assures us that ‘the plaintiff swears that the defendant was the slayer, the defendant swears that he did not slay.’ Pollux[58] states that both plaintiff and defendant were required to confine themselves to the point at issue and to abstain from any attempt to excite sympathy or compassion. What a contrast this picture presents to the procedure in a democratic Heliastic court composed of five hundred or seven hundred Athenian citizens, sitting together at the Crush, at the Triangle, at the Froggy or at the Scarlet![59] When Demosthenes says that the Areopagus was never deprived of its jurisdiction on homicide, not even by the democracy, we feel that he is acutely conscious of the contrast in the procedure of the Areopagus and of the Heliastic courts, as Antiphon certainly is[60]: we may also infer that some such democratic invasion had occurred in the case of the four other homicide courts in which the Ephetae at one time had exclusive jurisdiction.

(2) The Palladium[61]—the court for involuntary homicide: ‘here it is the law that both parties should first take oath (διωμοσία), then deliver their speeches, and finally that the court should decide.’ Demosthenes gives no further details, but the missing information is supplied by Aristotle and by Pausanias. We shall see presently[62] that at one period this court probably tried all kinds of homicide pleas between citizens. The legend[63] concerning Demophon’s plea at this court must have originated at such a period. But the court had developed, we think, before the time of Solon a specialised function in regard to pleas of involuntary homicide. The reason for this was, perhaps, because it was situated outside the city boundary and would naturally therefore have been selected as a court of appeal by exiles who had been convicted of manslaughter and who were anxious to return. Hence in Solon’s time this court was habitually appealed to by the citizens in charges of manslaughter. If it still continued to hear pleas of wilful murder between foreigners, this was perhaps because such pleas were regarded as of minor importance. In such cases no Athenian court could decree or execute the penalty of confiscation, since the slayers were foreigners, and their property was not subject to Athenian control. It is also possible that the laws of extradition (ἀνδροληψία) made it desirable to judge cases of homicide between foreigners at a court which was outside the original boundary of the city.

(3) The Delphinium[64]: ‘There is a third tribunal, of all courts the most sacred and filled with awe, in which a person acknowledges that he has slain another but contends that he has done it lawfully. This is the court at the Delphinium. It appears to me, men of Athens, that they who originally distinguished the lawful from the unlawful inquired whether it was right to consider no homicide lawful, or whether a certain kind of homicide must be considered lawful.... Considering then that Orestes who admitted that he slew his mother was acquitted by a tribunal of gods, they decided that some kinds of homicide were justifiable.... Having come to that decision they defined in precise terms the circumstances in which it was lawful to kill.’ What a halo of sanctity still seems to surround this Delphinium court! In ancient societies it was much less difficult to ascertain the identity of a slayer than it was to define the boundaries of righteous and unrighteous slaying. But once the boundary lines were fixed, and we have seen[65] how they were fixed by a law of Dracon, the judgment resolved itself into a question of facts. Apart from religion, however, facts may be obscured by perjury. Hence it was probably the religious atmosphere of the court, and also its procedure, which was consecrated by long tradition, that caused the verdicts of the court to be revered and respected.

We may ask whether, in the event of a verdict for the defendant (the accuser), this court could have condemned the vanquished plaintiff to death? We agree with Lipsius[66] that theoretically it could have done so. In practice, however, it rarely did so, because the Archon Basileus must have previously estimated the balance of guilt in favour of the plaintiff (accused), and if he were vanquished at the Delphinium it was probably open to him to advance a further plea of manslaughter in the Palladium. The real meaning of a verdict of this court against the plaintiff was an imputation of some degree of homicide guilt, not necessarily the full guilt of wilful murder.

The attempt[67] to connect Orestes with the institution of this court is very interesting, but it is not successful. If it was the Areopagus which really acquitted Orestes, why did the Athenians set up a new court for such pleas? If it was the Delphinium, then why did legend connect him with the Areopagus? According to one account it was the gods who acquitted Orestes,[68] yet it was open to Aeschylus[69] to represent him as acquitted by Athenian citizens! It is important, however, in view of our subsequent analysis of the Oresteian legend in Attic tragedy, to note that according to at least one form of the legend, it was on a plea of justifiable matricide that Orestes was tried and acquitted. Though Plato[70] says that in no circumstances was it lawful to kill one’s parent, yet Plato would admit, we have no doubt, that the command of Apollo constituted an extenuation if not a justification for such a deed, in the days of private vengeance. But the connexion of Orestes with two different courts suggests a variation in the legends of Orestes, for it is unlikely that the same legend would have represented him as having been prosecuted before both courts on the same charge.

(4) The Prytaneum[71]: ‘If a stone or a piece of wood or iron or anything of the kind falls and strikes a person, and we are ignorant who threw it but know and have in our possession the instrument of death, proceedings are taken against such instruments here.’ Demosthenes does not mention animals, but Aristotle supplies this deficiency.[72] It is strange to speak of an object ‘falling and striking’ and at the same time to assume that somebody threw it. We have already suggested[73] that even if the thrower was known, proceedings could still be taken against the object if the thrower could swear that he did not intend to kill any person. Is it not probable that the weapon by which a person was accidentally slain in war or at gymnastic exercises, or the weapon by which a person was deliberately but justifiably slain, according to the Draconian law, would, after the slayer’s acquittal at the Delphinium, be tried and found guilty here?

(5) At Phreatto[74]: ‘There is yet a fifth court ... that in Phreatto. Here, men of Athens, the law requires a person to be tried if one is in exile on account of involuntary homicide and if, before those who procured his banishment have accepted “appeasement” from him, he incurs another charge, this time, of wilful murder. The framer of these laws did not overlook the criminal’s case because it was impossible for him to come to Athens, nor did he take the charge against him for granted because he had done some such act before. He devised a means by which religion was not outraged and the criminal was not deprived of a hearing and a trial.... He brought the judges to a spot to which the criminal might come, appointing a certain place in Attica by the sea. The accused sails up in a ship and pleads without touching the land: the judges hear him and give their verdict on the shore: if found guilty, he suffers the penalty of wilful murder, quite justly: if acquitted, he escapes that penalty but continues to serve the exile decreed for his previous manslaughter.’ The influence of the pollution doctrine in the origin of this court is quite manifest. The contingency which is thus provided for was, no doubt, very rare, but it was not nevertheless ignored. The ‘framer of the laws’ here referred to is, of course, Dracon, but we think that the court may have existed for some years before his time. The seventh century is, however, the most probable date of its origin. In view of the facts narrated in this quotation it is difficult to understand how scholars can believe that ‘private settlement’ was legal even for manslaughter.[75] The theoretical power of the relatives of the slain to resist ‘appeasement’ as long as they wished is here most clearly indicated.[76] The procedure here described might, we think, apply to homicide which at first was adjudged involuntary but which came, in the light of later evidence, to be considered voluntary. The penalty of wilful murder here referred to is perpetual exile and confiscation of property. In the event of the slayer choosing to land, he could be arrested and delivered to the ‘Eleven’ for execution; hence it is clear that the verdict of this court involved, en rupture de ban, the penalty of death. Plato was probably thinking of this court when he decrees[77] that a murder exile who is cast by a storm upon the coast of forbidden territory may put up a tent in the water and must keep his feet in the water till he finds an opportunity for resuming his voyage!

In a continuation of this same passage Demosthenes[78] refers to a sixth legal process, involving, so to speak, a possible sixth homicide-court, which we have already[79] identified with the Prison court of ‘the Eleven,’ a special Heliastic court of summary jurisdiction. Demosthenes says: ‘If a man is ignorant of all the other legal courses, or if the time within which they must be followed has gone by, or if for any reason whatever he does not choose to adopt those (other) methods of prosecution, and sees the homicide walking about in the temples or in the market-place, it is lawful for him to “arrest” and bring the murderer to prison ... and when he is brought to prison, he will suffer no punishment till he is tried, but if he is found guilty, he will be punished with death: if however the person who arrested him does not get a fifth part of the votes, he will pay a fine of 1000 drachmae.’ Aristotle[80] says of the Eleven Gaol commissioners: ‘Their duties are to have charge of prisoners, to put to death all thieves, kidnappers and highway robbers if they confess their guilt, to bring them before the Heliasts if they plead not guilty, to discharge them if acquitted, to put them to death if convicted.’ Demosthenes clearly does not refer to a convicted murderer en rupture de ban. Glotz[81] is right in rejecting this possible interpretation of the passage. By a law of Dracon[82] a convicted murderer en rupture de ban could be put to death by the first person who met him or taken to the ‘Eleven’ for execution, without further trial. But Demosthenes suggests that the ‘Eleven’ could try a murderer and condemn him to death! Pollux[83] assures us that ‘the Eleven’ sat as a Heliastic court. But could they try cases of homicide? Was prosecution open to any citizen? Was there at Athens a γραφὴ φόνου?

The Question of a γραφὴ φόνου

Glotz answers the question in the negative. But Pollux says[84] that there was a γραφὴ or public indictment for wilful murder, for malicious wounding, for arson, and for poisoning, as well as for adultery, sacrilege and impiety. The Heliasts were the normal judges for indictments (γραφαί), though Philippi[85] thinks that indictments could be also brought before the Areopagus. Was it then possible for any citizen to indict a murderer before the Heliasts in the time of Demosthenes? If so, what becomes of the law of Dracon which prescribed prosecution by the relatives? Glotz says[86]: ‘Si Solon avait imaginé une γραφὴ de ce genre, il eût par là-même ruiné la loi de Dracon sur un point essentiel.’ Caillemer finds it difficult to solve the question. He says[87]: ‘La question est malaisée à résoudre et très controversée parce que les textes sont contradictoires ou obscurs ... l’institution par Solon d’une véritable φόνου γραφή, la concession à tous les citoyens du droit d’intenter une action d’homicide, pouvait-elle se concilier avec le principe même de la loi de Dracon? Lorsque les plus proches des parents du défunt étaient d’accord pour pardonner ou pour transiger, les parents plus éloignés n’avaient pas le droit de poursuivre le meurtrier devant les tribunaux.’ He concludes, however: ‘en fait, dans beaucoup de cas, on pouvait arriver à la répression du meurtre par d’autres voies. Certains homicides donnaient certainement ouverture à l’εἰσαγγελία et cette procédure permettait d’atteindre un coupable que la loi de Dracon aurait laissé impuni.’

We have seen[88] that Socrates objected to Euthyphro’s prosecution of his father on the ground that he was not a relative of the slain man. Yet Euthyphro began his prosecution nevertheless! He calls his charge a δίκη, not a γραφὴ.[89] He is consulting the King Archon at the Prytaneum. We have quoted from Demosthenes[90] a law mentioned by the Exegetae, to the effect that it was not permitted to anyone save a relative of the victim, or a master, if the victim was a slave, to prosecute for homicide. Yet the Exegetae advised the plaintiff on independent grounds. ‘As you were not present yourself, but only your wife and children, and you have no other witnesses, we recommend you not to make proclamation of anyone by name, but only in general against the guilty parties, and further not to begin proceedings before the Archon Basileus.... Our advice is that you perform the necessary religious ceremonies for yourself and your house, bear the misfortune as patiently as you can, and take vengeance if you like in some other way.’ The religious ceremonies mentioned in this passage were probably an expiation-offering to the ghost of the nurse who had been slain. If so, then the Erinnys of the dead, at least, accepted the Draconian law! Is it possible—it cannot of course be certain—that the ‘other way’ of avenging was by a γραφὴ? If this indictment could not be brought till a number of years had passed, is this the reason that the misfortune had to be borne with patience?

We have referred to a Demosthenic passage[91] in which an unsuccessful γραφὴ ἀσεβείας was brought against the uncle of a man who was alleged to be guilty of parricide. If the charge succeeded, the alleged parricide, Diodorus, assures us that he would have been put to death and that his property would have been confiscated. But there is no reference to a specific trial for parricide. Did the γραφὴ ἀσεβείας involve, indirectly, a γραφὴ φόνου?

We believe that there was not, at Athens, a γραφὴ φόνου, that is, a direct indictment of a murderer by any citizen who wished to charge him. The suit which Euthyphro brought against his father was a δίκη, which was a quasi-civil or quasi-private process, and in any case the Archon Basileus would, we feel sure, have refused to accept it. But we think that an indictment for impiety, which could be brought by any citizen against a relative of a slain man who had failed to ‘proclaim’ and to prosecute the slayer, involved, if successful, a verdict of murder against the slayer; and that it was the possibility of such indictments which led Pollux to use the expression γραφαὶ φόνου. Thus if an indictment for impiety had been brought against a relative of the nurse whose violent death is referred to in the speech of Demosthenes against Euergus, it would have involved a verdict of murder or of manslaughter against Euergus and Theophemus. This is probably the ‘other way’ which was referred to in the speech by the Exegetae.

How then do we explain the Demosthenic passage[92] with which we began our present inquiry? The essential points in this passage are, we think, the reference to the murderer as actually ‘walking about in the temples or in the market-place,’ and the implication that he was ‘proclaimed’ but untried and unconvicted. Assuming that the relatives of the slain had proclaimed the slayer but had not proceeded with the prosecution, we can understand why the normal procedure of homicide-prosecution could not have been applied. For the relatives of the slain alone had the right of direct prosecution. But if the murderer had been proclaimed, but was, for some reason, untried and unconvicted, he could, if he frequented the temples or public places, have been proceeded against directly by a γραφὴ ἀσεβείας—an indictment for impiety. For the validity of such an indictment it was necessary that he should have been formally proclaimed as a slayer by the relatives of the slain: for, otherwise, he could not be regarded as publicly ‘polluted.’ But if we assume that he was proclaimed, and that afterwards—either because of lack of evidence, or because the proper time had passed by, or simply because the relatives of the slain were indifferent (we may suppose that they were bribed by a ‘private settlement’)—he proceeded to act as if he had not been proclaimed, then it was open to any citizen to indict the proclaimed homicide for impiety, but only if he was found in the temples or the market-place. The result of a successful indictment of this kind would have been more severe than that of a successful murder-charge: for though the slayer could have saved his property, he would not have been permitted to go into perpetual banishment, but he would have been put to death.

It is therefore, we think, a γραφὴ ἀσεβείας to which Demosthenes in this passage refers. Such an indictment would have been in practice but not in theory an indictment for murder. In theory it was an indictment for impiety or sacrilege. To win the indictment it was not necessary that the plaintiff should prove that the defendant was a murderer. For a proclaimed murderer had to prove his innocence. Hence, normally, a proclaimed murderer would either have challenged a verdict immediately after accusation, or he would have fled into exile. Thus, once more, we observe that ‘private settlement’ was not only illegal but was dangerously so. If the slayer settled with the relatives of the slain, they could have been indicted; and if he frequented the temples or the market-place, he himself could have been indicted for impiety. But if he was not proclaimed by the relatives of the slain, they alone could have been indicted for impiety: yet an adverse verdict would have involved his condemnation. Such is our solution of this difficult problem.

Whether this indictment against a proclaimed murderer who had been found in a temple or a public place was brought before ‘the Eleven’ for final judgment, or whether it was referred by them, if the accused denied the charge, to the ordinary Heliastic courts, is a question which we cannot decide. Pollux[93] includes ‘the Eleven’ amongst the Heliastic judges, but Aristotle[94] implies that they could only judge when the accused pleaded guilty. If it sounds strange to say that gaol commissioners might have heard such indictments, it is, we think, not quite so strange as the fact indicated by Philippi,[95] that indictments for impiety were in certain cases heard by judges who had no other judicial qualification save the fact that they had been initiated at the mysteries of Eleusis! The passage in Andocides,[96] on which Philippi’s statement is based, certainly suggests that there were at Athens special religious or ecclesiastical courts for the trial of offences connected with ritualistic procedure, such as profane conduct or the divulging of religious secrets. The court which is described by Andocides consisted of initiated citizens, and the accusation was concerned with an offence in regard to the Mysteries. Were these citizen courts a democratic development of the Eumolpid Exegetae courts which are referred to by Lysias?[97] Very probably they were, just as the Heliasts were a democratic development of the Ephetae courts. In both cases, however, we must assume that the development did not involve the destruction of the older system of judicature, but merely reformed it by providing an option in the personnel, while retaining the traditional procedure of the court.

Origin and Evolution of Attic Homicide Courts

Having now set forth the most important features of the homicide-judicature of Athens in the fourth century B.C., it remains to inquire what inferences may be drawn from these features as to the origin and the evolution of these courts. Our views as to the general origin of the Attic courts have already been indicated.[98] The theory of Gilbert and of Köhler that these courts originated in the right of sanctuary we have rejected as improbable.[99] The court at Phreatto had no connexion with a temple. Neither had the Prytaneum. The temple of Athene Areia on the Areopagus may not have existed when the hill first became famed for its legal judgments. The Palladium and the Delphinium were both temple courts, and during the Dark Ages (900-750 B.C.) the right of sanctuary may have given to these places their first connexion with homicide-investigation. This is, however, an accidental matter. The real cause of the birth of the Attic murder courts was the concurrence of the doctrine of homicide-pollution with the political synoekism of States in the eighth and seventh centuries B.C. Some Attic courts may have functioned in an arbitrary manner for local offences in earlier times, but their historical rôle began, and some of them, like Phreatto, were born, in the seventh century B.C.

Dracon and the Ephetae

Was it then Dracon who established the Ephetae courts as Solon established the Heliastic courts? Gilbert[100] finds it difficult to decide this question. ‘Whether Dracon himself,’ he says, ‘introduced or merely codified, in accordance with customs already existing, the system by which murder cases were tried at Athens and which, even measured by the standard of to-day, is tolerably complete, can as little be decided with certainty as can the question whether he was the founder of the five different courts at which in later times the trial was held according to the nature of the case.’ Yet, a few lines previously[101] Gilbert decides the latter question in the affirmative. ‘Dracon,’ he says, ‘transferred the judicial powers which the Areopagus had previously possessed to two new bodies which he created, the Ephetae and the Prytaneis.’

This question, for many scholars, has turned on the interpretation of a passage in Pollux,[102] who wrote eight hundred years after the event. Pollux says of the Ephetae that they were fifty-one in number and that ‘Dracon established them, chosen on grounds of birth. They were the judges of those accused of bloodshed in the five courts. It was Solon who established in addition the council of the Areopagus.’

Philippi was the first to question the value of this evidence. As the phrase ‘chosen on grounds of birth’ occurs in a law of Dracon which mentioned the Ephetae, Philippi[103] thinks that Pollux is arguing from a false interpretation of that law, suggested by a false reading τούτοις for τούτους in the law as quoted by Demosthenes.[104] As the verb αἱρείσθων may have a ‘middle’ or a ‘passive’ meaning, the sentence τούτοις δ’ οἱ πεντήκοντα καὶ εἶς ἀριστίνδην αἱρείσθων may be translated ‘for these (i.e. the phrateres) let the fifty-one be chosen according to birth’: instead of: ‘these phrateres (τούτους) let the fifty-one choose according to birth.’ But the Demosthenic citation of the law contains a reference two lines earlier to an existing body of fifty-one judges of the plea of involuntary homicide, and, therefore, the reading τούτοις is obviously false.

Gilbert says[105] that this supposition of Philippi is ‘possible but not necessary.’ But it seems obvious from the law as cited that the supposition is fanciful and impossible. Yet we hold that Pollux was in error in asserting that Dracon instituted the Ephetae. The reason for the error has been correctly indicated by Müller.[106] ‘This title (Ephetae),’ he says, ‘occurred so frequently in Dracon’s laws that it gave rise to the opinion which we find in Pollux that Dracon instituted the college of the Ephetae.’ We may add that in the laws of Dracon there is no suggestion of the creation of homicide-judges or of homicide-courts. Their existence is presumed, just as clearly as the distinction between grades of homicide-guilt and the details of the various penalties are presumed. Dracon, in our view, merely codified existing laws in relation to homicide, and allotted the trials of the different kinds of homicide to the tribe-kings, on the one hand, and to the fifty-one Ephetae, on the other. This conclusion will be confirmed by a consideration of the meaning of the word Ephetae.

Müller[107] rightly points out that the ending της normally has an active signification. The word ἐφέτης (we will assume for the moment that the plural form ἐφέται had a corresponding singular form) should not, says Müller, denote ‘a person appealed to,’ but rather a person who permits an avenger to punish. Müller thus connects the word with the verb ἐφίημι, ‘I permit,’ rather than with the term ἔφεσις, meaning ‘appeal.’ Schömann[108] and Gilbert[109] also connect the word with ἐφίημι, but interpret the verb as an archaic form, which means ‘I direct’ persons as to the manner in which the accused should be punished or proceeded against. The Ephetae, according to this view, are ‘the directors’ or the determining arbiters of prosecution or vengeance. Philippi[110] points out that this opinion gives to the term too wide and general a meaning. We agree with this criticism. Any judge or group of judges could have been called ‘Ephetae,’ according to this view. Why, then, we may ask, did not Dracon call these judges by the ordinary title of homicide judges, namely, dicasts (δικασταί)? Such was the usual title of the democratic Heliastic judges.

Lange, who at a later period came to favour the Schömann-Gilbert view, originally proposed[111] that the term Ephetae was an abbreviated clause, that the words οἱ ἐφέται are derived from the phrase οἱ ἐπὶ τοῖς ἔταις ὄντες, i.e. ‘those who presided over the citizens of full right’—the foremen or heads of the old aristocracy of tribal Attica. Philippi[112] favours the original theory of Lange, which is, he says, ‘so excellent from a linguistic point of view that I am entirely satisfied.’ Philippi points out that, according to this view, the Ephetae are the Athenian counterpart of the Spartan Gerousia and that therefore we can understand their selection on grounds of birth. Glotz[113] also adopts this interpretation. He speaks of ‘les éphètes ou chefs d’ἔται.’ Now, the Homeric word ἔται may mean either cousins or comrades. It was a word which could denote, in Pelasgian life, members of the same clan or of the same phratry. The chiefs of the phratries were therefore nobles, closely connected with the kings of the tribes. It is therefore significant that the only homicide judges who are mentioned in the Draconian inscription of 409-8 are the kings and the Ephetae.

Pollux[114] assures us that, in the time of Dracon, the Ephetae sat in all the five great homicide courts. They therefore sat on the Areopagus at that time, and also in the Prytaneum. In the time of Aristotle[115] the judges at the Prytaneum court were the Tribe-Kings and the King-Archon. The Ephetae continued to sit at the Delphinium, the Palladium, and the Phreatto courts.[116] These facts suggest, prima facie, a survival in the democratic era of the judicial power of the old nobility of birth. Pollux[117] states that the Tribe-Kings were Eupatridae, which implies that they were members of the old Attic nobility. The Ephetae, he says,[118] were chosen on grounds of birth: a fact which proves, as Gilbert points out,[119] that they also were Eupatridae. Aristotle[120] says that, before Dracon, the highest magistrates were elected from the ranks of the aristocrats and the oligarchs; and that these magistrates were the final judges of the suits that came before them, not, as in his own time, the preliminary investigators.

Is it not obvious therefore that we must interpret the evolution of Attic homicide courts as a gradual encroachment on the part of the new plutocracy and the new democracy upon the domain which at one time was administered exclusively by the sacerdotal aristocracy of birth? According to this view, the Ephetae and the Tribe-Kings, who once sat in all the great Attic courts and who were never suppressed, though they certainly were submerged, in the classical period of Greek history, were the lineal descendants of the tribal Elders of Pelasgian days whom Homer describes[121] as ‘sitting on smooth stones in a sacred circle, with sceptres in their hands.’ According to this hypothesis Dracon did not create the Athenian Ephetae. He did not even establish them in the rôle of homicide judges, for such they had been from time immemorial, in the local judicature of tribal society; and such they must also have been, in the centralised civic judicature, which before Dracon, though perhaps not long before him, had evolved under the twofold influence of political synoekism and the religious doctrine of homicide as a ‘pollution.’

The Exegetae and the Number Fifty-one

We have frequently[122] referred to the Ephetae in connection with the Exegetae or Interpreters, and we have described both these groups as a sacerdotal nobility. We must now attempt to explain this connection, and, incidentally, discuss the origin of the curiously constant number ‘fifty-one,’ which is usually associated with the Ephetae. According to Suidas,[123] the Exegetae or Interpreters were appointed or controlled by the oracle at Delphi and they were three in number. Pollux[124] defines the Exegetae as ‘those who gave information regarding omens and other sacred matters.’ But the Tribe-Kings, as Pollux states,[125] were also concerned with ‘sacred matters’: and so, therefore, probably, were the Ephetae. Now Demosthenes does not mention the number three in connexion with the Exegetae. Neither does Plato. Plutarch[126] states that the Eupatridae of Athens were the Exegetae of sacred law. This statement implies that the Exegetae were a widespread caste rather than a group of three individuals. Similarly Lysias[127] refers to the Eumolpidae of Eleusis as the Exegetae of unwritten customs.

Taking it for granted that the Athenian Interpreters were three in number, Gilbert[128] and Schömann explain the number fifty-one, which is applied by Dracon to the Ephetae, as composed of forty-eight Ephetae (elected by the four Ionian tribes of Attica, twelve from each tribe) and of three Exegetae. According to this view, there was in Dracon’s time no distinction between the Exegetae as Interpreters and the Exegetae as homicide-judges. Müller,[129] however, thinks that the three Exegetae were not judges, but only purifiers; and he explains the number fifty-one as a Cleisthenic or post-Cleisthenic figure, made up of, say, five members from each of the ten Cleisthenic tribes, and one additional judge, who was presumably the King-Archon.[130] But, we may point out, the number fifty-one occurs in the actual (unrestored) Draconian inscription[131] of the year 409-8 B.C.: and it is improbable that any changes were made in the law in the time of Cleisthenes.

Plato says[132] that the Interpreters, in his ideal State, should be elected annually one from each tribe. It is therefore better, we think, to abandon the hypothesis that the Exegetae were at all times three in number. Suidas is a very late authority for this number, and he may be referring merely to the chief members of a group. But how, then, do we explain the fact that the number of the Ephetae was invariably fifty-one? It is, we think, very possible to suppose that in early times the three most important ‘archons’ were Ephetae, who acted in conjunction with the other Ephetae, who were therefore forty-eight in number, and that the number forty-eight was made up of the four Tribe-Kings and of forty-four nobles elected by the four Ionian Attic tribes, eleven from each tribe. Aristotle[133] assures us that the three ‘archons’ in the seventh century were nobles and that they were ‘final judges,’ not mere investigators. It is not necessary to assume that in later times the Ephetae always sat together as a body of fifty-one judges. Sometimes they may have adjudicated as a single group, but more frequently they were divided into sections which sat in different courts. The presence of the King Archon and the Tribe-Kings at the Prytaneum[134] suggests perhaps a previous condition of things in which these officials sat with the entire Ephetae body in the more important homicide courts.